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"'"''J"« iNSLiamrLAH^ 
 
 OF OAN.WU 
 

T 
 
 t 
 
 ¥ 
 
 <j 
 
 A TREATISE 
 
 ON THE 
 
 INSURANCE LAW 
 
 OF CANADA 
 
 KMHIlAt'INC. 
 
 FIRE, LIFE, ACCIDENT, GUARANTEE, MUTUAL BENEFIT, ETC. 
 
 WITH 
 
 AN ANALYSIS OF TH/0 JUUISPRl'DKNCK AM) OF THR STATITK 
 LAW 9P TIIK DOMINION 
 
 BY 
 
 CHARLES M. HOLT, L.L.L. 
 
 BAKHLSTKH, MONTRKAL I!A1{. 
 
 I 
 
 I 
 
 MONTIIKAL: 
 
 C. TIIEORET, LAW BOOKSELH':ii AND PUBLISHER 
 
 11 & V\ St. James Sthkbt 
 
 1898 
 
Knlered acfonliim to Act of ParliiiiiuMit, in the.\<,ir <'i,uhti'i'ii ImndriMi and nincty- 
 eiKht, l).v ('. M. Uoi.T find t". Tiiikihi.t, o'' .Montival. in tin- Ollicc of the 
 Minisler of Agriculture al 1)1 taw a. 
 
TO 
 
 SIR HENRI JOLY DE LOTBINIERE, K.C.M.G. 
 
 THE CANADIAN nAYAUD, 
 
 " WITHOUT PEAR AND WITHOUT REPROACH," 
 
 THI8 BOOK IS RESPECTFULLY 
 
 Dedicated. 
 
 
PUBLISHER'S NOTICE. 
 
 The subject matter of this work was first prepared by 
 Mr. Holt in lecture form and delivered by him in the Law 
 Faculty at Laval University. It has, however, since then 
 been completely rearranged. As oflficial Liquidator of the 
 Glasgcw & London (Fire) Insurance Company, and Attorney 
 for Canada of the Life Association of Scotland, Mr. Holt has 
 had an opportunity to examine both fire and life insurance 
 from its practical side, and ho has made a specialty of the 
 subject in his law practice for some years past. 
 
 C. THEORET. 
 
PREFACE. 
 
 There has been 90 much legislation and so many questions 
 have come before our courts connected with Insurance that the 
 writer believes that a complete review of the Insurance law of 
 Canada as it stands to-day will be of use to the profession and 
 to all those interested in insurance. 
 
 The writer's aim has been to make the work complete in 
 itself, so that the labor of referring from it to statutes and reports 
 will not be necessary. 
 
 To make it cover, in as brief a form as is consistent with 
 clearness, the whole ground of the subject matter of insurance. 
 To give in digested form, with comments and notes, every 
 legislative enactment on the subject of insurance of the Dominion 
 parliament and of the legislatures of the provinces of Quebec, 
 Ontario, Nova Scotia, New Brunswick, Manitoba, British Columbia 
 and Prince Edward Island. 
 
 To make a careful analysis of the jurisprudence of the courts 
 of each of the provinces and of the Supreme Court of Canada, 
 and to deduce from it the general principles applicable to insur- 
 ance contracts in Canada. 
 
 And lastly, to compare our Canadian legislation and juris- 
 prudence with that of foreign countries and that of each province 
 with the others. 
 
 The method followed in preparing the work was as follows : 
 An examination was made of the legislation of the Dominion and 
 of each of the provinces on the subject matter of insurance, and 
 the jurisprudence in each province was then examined. From 
 
vni 
 
 INSURANCE LAW OF CANADA. 
 
 these sources the writer has attempted to extract the general 
 principles applicable to insurance contracts in Canada. The 
 legislation and jurisprudence in foreign countries has also been 
 examined, and a comparison made between the general principles 
 applied abroad with those applicable in Canada. 
 
 The leading English and American decisions upon each point 
 discussed have beei. placed in foot-notes ; and the writer has 
 endeavored to embody in the text, for the most part, the Canadiati 
 law alone. 
 
 Montreal, February, 1898. 
 
 c. M. n. 
 
TABLE OF CONTJH^NTS. 
 
 CirAP. 1 
 
 i( 
 
 2 
 
 u 
 
 3. 
 
 u 
 
 4. 
 
 ik 
 
 5. 
 
 a 
 
 6. 
 
 *i 
 
 7. 
 
 ik 
 
 8. 
 
 fc( 
 
 9. 
 
 . fci 
 
 10. 
 
 fch 
 
 11.- 
 
 ki 
 
 12.- 
 
 t k 
 
 18.- 
 
 bb 
 
 14.- 
 
 ■ b 
 
 15.- 
 
 bb 
 
 16.- 
 
 bb 
 
 17.- 
 
 bfa 
 
 18.- 
 
 bb 
 
 19.- 
 
 ib 
 
 20.- 
 
 ib 
 
 21.- 
 
 *b 
 
 22.- 
 
 bb 
 
 23.- 
 
 bfc 
 
 24.- 
 
 (k 
 
 25.- 
 
 PAdE 
 
 —History of the contruct of instirance i 
 
 -The nature ot the contract and the different kinds 
 
 of insurance 21 
 
 -Powers of Parliament and the Local Legislatures 
 
 over the subject mutter of insurance - - - 64 
 -Of the making of the contract, the application, 
 
 payment of premium and delivery of policy - 71 
 -Tusurance under interim re' i^)t -•-.... 172 
 
 -Insurable interest .... 135 
 
 -[nsurance by mortgagee or hypoch.^ary creditor - 232 
 -fnsurance for the henetit of wite iind children, etc. 266 
 -Conditions of policies, including statutory condi- 
 tions and their variations . 339 
 
 -Warranties, re[tresentation8 and concealment, etc. - 383 
 
 -Additional insurance 455 
 
 -Transfers and assignments 475 
 
 -Agents — their powers and duties 493 
 
 -Mutual insurance 527 
 
 -Reinsurance 545 
 
 -Liability for losses, waiver of conditions, subroga- 
 tion, arsoti, etc. 559 
 
 -Proofs of loss gQ9 
 
 -Fraudulent claims q26 
 
 -Arbitrat'in ^34 
 
 -Suicide and death by justice 645 
 
 -Actions by and against insurance companies - - 652 
 -Limitation or prescription ot actions - . . . 672 
 
 -Foreign companies in Canada 682 
 
 -Winding-up of companies 690 
 
 -Rules of Treasury Board and Digest of legislative 
 
 enactments, with notes 695 
 
TABLE OF CASES. 
 
 A 
 
 Par. Pag« 
 
 Abbott V. Schor 155 'U5 
 
 Ace. Ins. Co. V. Crandftl 38;j 646 
 
 Ace. 1118. Co. of N. A. V. McFee .... 365 584 
 
 " V. Young... 365 ms 
 
 "... 375 617 
 
 Adams v. Reed ;158 575 
 
 Adinr. v. Scnmoltz 186 231 
 
 Adreveno v. Mut. Res. B'und Life 
 
 Ass 3 605 
 
 ^tna Ass Co. v. Atty. Genl. of 
 
 Ontario 275 403 
 
 JFAna Vive Ins. Co. v. City of 
 
 Headinn 417 688 
 
 Aitna Fire Ins. Co. v Tyler 155 215 
 
 .i^tna Ins. Co. v. Fowler ef nl 331 526 
 
 V. McLeod »-/«/... . 21t2 460 
 
 ... 370 610 
 
 " " " ... 381 (WO 
 
 " V. Stevens 376 620 
 
 JEtna lilfe Ins. Co. v. Brodie ;J52 563 
 
 " V. France 124 101 
 
 176 225 
 
 " " depositor ; Gau- 
 
 cheret nl.y petitioners, and Gos- 
 
 .sc-lin. petitioner iWh 260 
 
 Mlinx Life Ins. Co. v. Hannii 417 688 
 
 " " V. Shoenuilier :««{ (BO 
 Agrlcnlt. Ins. Co. of Waterlown 
 
 V. Aiisiey 285 4:13 
 
 <io 375 618 
 
 AKricnlt. Ins. Co. of Watertown 
 
 V. Huniiller 372 614 
 
 .\grici)lt. Ins. Co. of Watertown 
 
 V. Totts ;i(K» 472 
 
 Agrii'ult. Ins. Co. of Watertown 
 
 V. .Sargeunt 328 51il 
 
 Aitltin V. National Ins. Co 280 108 
 
 Alaliiiina Gold Life Ins. Co. v. 
 
 (Jiirner .'JiJOf/ '")25 
 
 Alal>ania Gold Life Ins. Co. v. 
 
 .lohnston 288/> 440 
 
 Alabama (iold Life Ins. Co. v. 
 
 Lott 417 6KS 
 
 Alaliumii (iold Life Ins. Co. v. 
 
 Mi)l)ik' Mut. Ins. Co 170^ 227 
 
 Alalxinia Gold Life Ina. Co. v. 
 
 'i 'lomns 358f 576 
 
 Alexander v. Taylor 80 165 
 
 Alkins V. .]\\w 2(( 45 
 
 Alleniannia F. Ins. Co. v. Peck . . 404 670 
 Alli'ii V. Hanson (/(I »r Si'ott. Can. 
 
 Asbestos Co.) 41H |||K) 
 
 Allen V. Mercli. Marine Ins, Co. . 403 671 
 
 " V. St. Lawrence Co. Farm- 
 ers' Ins. Co ;i;iOa 518 
 
 
 Pur. Page 
 
 Alleyn v. Quebec Ass. Co 
 
 24(f 
 
 AUibone v. Fid. & Cas. Co 
 
 376 62 
 
 Alston V. Mecbanics Mut. Ins. Co.. 
 
 287f/ 4;n 
 
 Amazon Ins. Co., in re 
 
 2126 263 
 
 American Ace. Ins. Co. v. Car- 
 
 
 son 
 
 ;«« .589 
 
 American Casualty Co. v. Lea — 
 
 417 (i87 
 
 American Cas. Ins. & Secy. Co. v. 
 
 
 Tyler 
 
 417 688 
 
 American Centr. Ins. Co. v. 
 
 
 Heaverin 
 
 376 622 
 
 do 
 
 376 623 
 
 American Centr. Ins. Co. v. 
 
 
 
 376 623 
 
 Amer can Empl. Liab. Ins. Co. v. 
 
 
 
 3;J0a 519 
 
 American Enipl. Liab. Ins, Co. et 
 
 
 al. V. Foniyce et nl 
 
 ;((( 
 
 American F. Ins. Co. v. Brooks 
 
 
 <>/ nl 
 
 322 4}H) 
 
 American Ins. Co. \ . Pieul 
 
 •28h/412 
 
 American Surety Co. v. Pauly . . . . 
 .1 .1 11 
 
 !«16 598 
 .TO 611 
 
 Amesbury -'. Ins. Co 
 
 Anchor Marine Ins. Co. v. Allen. . 
 
 405 680 
 
 .'J80 (W5 
 
 ,1 t. (t *t 
 
 \m 671 
 
 " " V. Corbett 
 
 :m 'iV2 
 
 ,1 .* M ** 
 
 351 .56:1 
 
 Anders v. Supreme Lodge K. of 11 . 
 
 287/' 445 
 
 Anderson v. Maiicli. F. Ass. Co.. 
 
 :«»1 473 
 
 " V. Morice 
 
 124 ll»2 
 
 V. Saugeen Mut. F. 
 
 
 
 195 242 
 
 Aiwlersoii V. Saugeen Mut. F. 
 
 
 
 334 5:10 
 
 tin 
 
 :n:< (116 
 
 ilo .. .. 
 
 4(13 676 
 
 
 70 IHI 
 
 
 '26 45 
 
 Anoka Lumber Co. v. Fid. & Cas. 
 
 
 Co 
 
 :<65 5o:< 
 
 Anslev V. Watertown Ins. ('o 
 
 l(i;i (174 
 
 .Vrclm'nil)ault & Citizens' Ins. Co. 
 
 17:{ 224 
 
 " V. Galarnciiu 
 
 187 2;i;i 
 
 k liauiere it nl 
 
 187 2;t:i 
 
 Ardill (7 «/. V. .Ftna Ins. Co 
 
 :I(I8 IHn 
 
 " V. Citizens' Ins. Co.. . 
 
 •MH 185 
 
 ArlV V. Star F. Ins. Co 
 
 •M\n 520 
 
 4. I( 4t 
 
 :i:tO(f 521 
 
 Armour et nl. v. Reading Fire 
 
 
 Ins Co 
 
 202 4(UI 
 
 Armstrong v. Ins. Co 
 
 \m 62;t 
 
 " V. IMerspond 
 
 77 il2 
 
 " V. Tunnnind 
 
 77 117 
 
 Asliford V. Victorlii Mut 
 
 :»22 404 
 
 Atkinson v. Atkinson 
 
 171 225 
 
xn 
 
 INSURANCK LAW OF CANADA. 
 
 Var. 1 '!!«(' 
 
 Attorney-General v. .'Etna Ins. Co 'Ml (iiiO 
 
 Atwell V. Western Ass. Co 'ilK* 4((1 
 
 AuKUsta V. Earle 4(Ki (ISJ 
 
 Austral. Agric. Co. v. Saunders. . 21f.t 172 
 
 It 
 
 Baile v. St. Jos. K. & M. Ins. CJo., 17(( 7S 
 Bailey v. Inter-State Cas. Co. of 
 
 N. Y ;ifl5 588 
 
 Bailie v. I'rov. Ins. Co ;«4 m) 
 
 Bain v. .Vkna Ins. Co ;W7 !u'.i 
 
 400 »«» 
 
 Bnjus, re 2:il 282 
 
 ;m Ml 
 
 " V. tterinan F. Ins. Co :«)4 (kW 
 
 " \. Union Mnt. Ins. Co.. .. 124 101 
 
 Ballagh v. Koyal Mut. Ins. Co. . . . 247 ;U0 
 
 " .... 217 :U1 
 
 " .... 210 :m 
 
 " " " " .... 2iJ7rf:ViO 
 
 " " " " .... ;»;« Xi-> 
 " .... :«:» .5:t! 
 
 Biildwin V. Insurance tlo 2126 2li;{ 
 
 Ball is V. Dobin 212« 2(10 
 
 Bancroft v. Home Ben. Ass'n 288(' 451 
 
 Bangor Savings Bank v. Niagara 
 
 F. Ins. Co :{82 M'.i 
 
 Bank of (Commerce v. British Am. 
 
 A.ss. Co 'MSb :)7(! 
 
 Bank of Montreal V. Bethnno 40(1 (!82 
 
 Bank of Toronto v. Beaver & Tor. 
 
 Mut. Ins. Co :W2 5H1 
 
 Bank of Toi'ontov. Euron. Ass.Soc IKKl 501 
 
 " " V. Lamne H2 05 
 
 Bankers Life Ass. V. Lisco ;175 (119 
 
 Bankers Life Ass'n of Minn. v. 
 
 Ste ven« rl al ;t.")8(/ .577 
 
 Bank v. Cramer :VM 517 
 
 Ban(|Ue Nationale & Lesperanec :t(l(! 5iKI 
 
 Barlmr V. Hoelini 417 088 
 
 Barclay V. Cousins 155 215 
 
 Banl V. I'oole ;«)5 481 
 
 Barker v. .lansen (M 02 
 
 Barnard v. Faln'r 207 ;«KI 
 
 277 KM 
 
 Barnes v. Pom'n (irange Mut. 
 
 Fin- Ins. .\ss 107 178 
 
 Harnes v. London, Kdinhurgh it 
 
 (ilasgow Life Ins. Co 172 2211 
 
 Barnes v. McMnrtv 40H 07;< 
 
 Barnum V. Me:, f; Ins. Co 404 070 
 
 Barre v. Brune 2;»8 202 
 
 •' V. Council Hlull's Ins. Co... H(18 (Mil 
 Barrett v. CnUm M\it. F. In.s. Co. :«22 400 
 
 Bar.salon v. Hoyal Ins. Co 2H0 100 
 
 Bart lett V. Insurance Co 405 080 
 
 V. Iowa Slate Ins. Co. . :HI4 («)2 
 
 " V. North Avenue Co 418 (101 
 
 Baunigart v. Mcidern Woodmen 
 
 of .\merica 288c 454 
 
 Bawdeii v. Ldn., Edinh. & (ilas- 
 gow L. Ins. t;o ;12H 517 
 
 Beacon I'lre fi Life Ins. tlo. v. Glhlt 2556 ;t55 
 
 Beam V. Beam 224 27(1 
 
 " 2:U) 281 
 
 Beausoleil v. Can. Mut. Fire Ins. 
 
 (%. 20U 4(U 
 
 Heckwit h V. Hyaii ;i:«l(/ 525 
 
 Bchrens V. (iermanlaF. Ins. Co . 1170 0:12 
 
 Helangerv. .McCarthy II5H 5(17 
 
 Bell W ((/. V. Aiisliy 158 218 
 
 '• V. Hartford F. Ins. Co.. 4(i;» 07(1 
 
 I'lir. I'ngs 
 
 Bellr^fi?. V. Ottawa Trust& De- 
 posit Co 225 27(5 
 
 Ben. Order of Active Workers v. 
 
 Smith :t:«i .517 
 
 Bennett v. Agric. Ins. Co. of 
 
 Watertown . : -.mn 521 
 
 Bennett V. Ins. Co :i70 02:J 
 
 Benson v. Ottawa Agr. Inc. Co. . 822 4!H1 
 
 ' :i22 407 
 
 Bently v. Standard F. Ins. Co . . . :»7(i 024 
 
 Bernard <'f vir. v. Nat. Ass. Co. of 
 
 Ireland :»78 (120 
 
 Bernard v. United Life Ins. Ass'n 2886 451 
 
 :i22 li«) 
 
 :).tO 502 
 
 Bernheinier v. Citv of Leadville. . :122 5(K) 
 
 Bigelowv. Berkshire Life Ins. Co. :W1 048 
 
 Billings V. Ace. In.s. Co. of N. A. . :»8:H 048 
 
 Billington v. Prov'l Ins. Co 205 407 
 
 " " " M22 408 
 
 :)28 514 
 
 Birmingham Ins. Co. V. I'ulver. . . :t81 (KIH 
 
 Birrell v. Dryer 207 JJWJ 
 
 Bishop V. Norwich Union F. Ins. 
 
 Soe :i45 .55(» 
 
 do :t70 02;i 
 
 do :{8i o;j7 
 
 Black V. National Ins. Co 108 243 
 
 108 244 
 
 204 105 
 
 :H5 mi 
 
 :«i8 («:{ 
 
 :«!!) 005 
 
 Blacklnirn, Son & Co. v. Vigors . . 2811 125 
 
 " . . 2811 127 
 Blackstone v. Standard Ins. Co . . ;t8H 010 
 Blais V. Stansiead & Sherl)rooke 
 
 Riut. F. Ins. Co 201 400 
 
 Blanchard v. Ins. Co 2126 2(W 
 
 llleakley v. Niagara Dist. Mwt. 
 
 Ins. I'o 282(( 122 
 
 do :I22 407 
 
 Blinn v, Dresden Mut. F. Ins. Co. :I08 (MIS 
 
 Bloom V. Franklin Ins. Co :184 ((('W 
 
 Bloondngton Mut. lien. Ass. v. 
 
 Blue 182 221) 
 
 Blossom V. Insurance Co H70 022 
 
 Bodine v. I'^.xchange F. Ins. Co. . . iKlOc .522 
 
 ' . . . :i;ioc 524 
 
 Bolan^^»/.v. FireAs.s'nof Philad. 'XHk 525 
 
 :i75 017 
 
 Holland v. Disney ItKi 045 
 
 Bonnert v. I'enn. Ins. Co :«t4 (103 
 
 Boren v. Manhattan Life Ins. Co. a28 512 
 
 Borradaile v. Hunter :t8:i (U7 
 
 :»H:i 040 
 
 Boulwave V. Davis 417 088 
 
 Bowers v. Sliand 50 01 
 
 llox v. liailwav I'assengcr Co.... 27c 51 
 
 "... 1:12 202 
 '•.... ia2(( 202 
 Bovce v. Plwenlx Mut. Life. Ins. 
 
 (!o 281f/4l5 
 
 Bovdor .MacDonald v. Uefuge Ass. 
 
 Co ;io:i 500 
 
 Bovle v. Bettws Colliery Co 418 001 
 
 '' it nl. V. Hainhur'g-Breinen 
 
 F. Ins. Co :I70 024 
 
 do a81 (140 
 
 . Bradley v. Mut. Ben. Co a84 050 
 
 Bradsliaw v Ag. Ins Co of W'town :WI (H2 
 
lABLli OF OASEa. 
 
 Xlll 
 
 V:\T. I'aKO 
 
 Brady v. Western Ass. Co 322 mio 
 
 Briuiilon v. Curling 3«2 580 
 
 Branford v, Saunders 120 ISO 
 
 Bransford f( (tl. v. Norwich Union 
 
 F. Ins. Soc am 525 
 
 Breasted v. Fanners Loan & 
 
 TrusiCo ;1H3 WO 
 
 Brcssard i: Ivlarsouin & Vilbon. . . 222 270 
 
 Bre war V. Harris 7S i:t7 
 
 Brink v. (luar. Mut. Ace. Ass'n. . H70 02;i 
 
 .. :m 025 
 
 Britisli Ainer. Ass. Co. v. Cooper. :t22 4!tO 
 
 " V. .losepli. 15.J6 210 
 
 V. " . IWri 5."i2 
 
 ' V. " . 340 559 
 
 British Empire Mut. Life Ass. Co. 
 
 & Bergevin 2;V» 20 
 
 do.. 2.5( 42 
 
 do 'XM 527 
 
 Britisli K<|uital)le Ins. Co. v. 
 
 G.W. H 00 01 
 
 Briton Medical & Gen. Life 
 
 Ass'n, IT 10 70 
 
 do Ill (Mi 
 
 do I! I (iH7 
 
 Brill V. Mut. Hon. Co :«»5 000 
 
 IJritton V. Hoval Arcanum 2H.M6 -151 
 
 Brodv V. Dcs Moines Ins. Co H70 010 
 
 Brogiin V. Man. & Merchants' 
 
 iMul. F. In-^. Co :t22 104 
 
 llronilield v. I'nion Ins. Co. . . . '-VMii 510 
 
 llroin ford V. .Saunders 121 102 
 
 Brooklyn Masonic Belief Asa. v, 
 
 Hanson SiM 2.S4 
 
 Brothers v. Calif. Ins. Co :104 OOH 
 
 IJrowii V. Home Ins. Co loll 214 
 
 " V. Insui'ance Co 212f< 201 
 
 ' :!70 022 
 
 " V. MuHae :U\ :m\ 
 
 H1I8 007 
 
 " V. Metrop. Life Ins. Co. . . 2.'nS6 451 
 
 " ... 2KSr 45-1 
 
 " V. Ottawa Ins. Co :122 404 
 
 " V. Pliii'nix Ins. Co. of 
 
 Hartford :I72 014 
 
 Brown v. Uy. I'ass. Ahh. Co (HI 171 
 
 BrowniuK V. Provincial Ins. Co. . HI 1.*<1 
 
 . , V.m 107 
 
 " " . io;t (i7o 
 
 Hnice V. Harden 107 220 
 
 :!.-is .■)7;i 
 
 " V. (iernian Siiv. & Loan .Soc. llOlt 007 
 Bnice V. (iorc l)is. Mn(. Ins. Co. . 2lM'i ;i75 
 Mrtmswick .Saving Inst. v. Com- 
 mercial Ins. Co 2126 ms 
 
 Bryant v. Ocean Ins. Co 287(/ 4118 
 
 liu'll'alo .Steam Kngine Works v. 
 
 Sun Mut, Ins. (^o 2:jf» 250 
 
 Huick ft (il. V. .Mech. Ins. Co :i:«l 517 
 
 Bull V. North Brit. Can. Invest. Co 104 241 
 
 " " " :«Hi 181 
 
 " " :)7;t 010 
 
 Burkhardt V. '["ravclcrs Ins.Co.. . . 27c .")2 
 Burkheiscr v. Mut. Ace. Ash. of 
 
 the Nortliwesl.. ;)10 544 
 
 Burlinglon Ins. Co, v. Kennerlv. . HlKIc 525 
 V. Thrclker.l.. ;128 511 
 
 V. Toliev ;i70 022 
 
 Burnett V. Union Mut. F. Ins.Co. 51 85 
 " " . :I81I 0.-)8 
 Burnham rt ill. v. (Jreenwicli F. 
 Ins. Co :i01 474 
 
 Pur, Page 
 
 Burton V. Conn. Mut. Life Ins. Co. 124 101 
 
 125 lOJ. 
 Eushaw V. Women's Mut. Ins. & 
 
 Ace. Co :)70 025 
 
 Butler V. Standard Ins. Co 1:« 20;i 
 
 24iJ ;W9 
 
 ;H85 ft52 
 
 " V State Mut. Co 120 105 
 
 Cadieux v. Can. Mut. F. Ins. Co. . 
 
 Caldwell v. Fire & Life Ins. Co. .. 
 
 " V. Stadaeona F X, L Ins. Co. 
 
 do 
 
 do 
 
 do 
 
 Caledonian Ins. Co v. (Jilmour. . . . 
 " " V. Traub <•/ ill. 
 " " V. I'nion Com- 
 press Co . . 
 
 (^alhoun v. Union Mut. Ins. Co... 
 Cameron v. Canada F. & M. Ins. Co 
 
 do 
 
 do 
 
 do V. Canada Life Ass. Co. 
 Cameron, Mason v. Cameron, rr.. 
 
 Camniack v. Lewis 
 
 Campbell <i iil. v. Dunn 
 
 do V. New lOngl'd Mut. t'o. 
 
 do 
 
 Campbell v. Glasgow & London 
 
 Ins. Co 
 
 Campbell v. Insurance Co 
 
 " v. Li)l. fi Ldn. & Globe 
 
 Ins. Co 
 
 Cami)bell v. Victoria Mut. I'Mre 
 
 Ins. t'o 
 
 ("aiiada Mut. F. Ins. Co. v. 
 
 Donovan 
 
 do 
 
 Canada Mut. F. Ins. Co. v. North- 
 ern Ass. Co 
 
 do 
 
 ("anada Mut. F.Ins. Co. v.Schaefer 
 Canada Life .\ss. {'■). v. I'ei raiilt . 
 Canadian I''ire iS: .Marine Ins. Co. 
 
 v. Keromu'k 
 
 Canadian Ins. Co. v. Pilot 
 
 Canning v. Fanpihar 
 
 Camion v. N. \V. 'I'liisl Co 
 
 Capitol Ins. Co. v. Wallace 
 
 Cardinal \. Dom. Fire & Mar. 
 
 Ins. Co 
 
 Carey v. .•Mlemannla I'". Ins.Co. 
 Carey v. Home Ins. Co. of \. Y. . 
 Carlson ■. . .Snpr. Coniu-il .\mer. 
 
 Legion of Honor 
 
 Carlton v. .Sontlicni Mut. Ins. Co. 
 Carney v. \<'W York Life Ins. Co. 
 ("arpeliter rl iil. v. Am. .\cc. Co. . 
 Cart)eiiter v. Germau-.Vmer. Ins. 
 
 Co 
 
 do 
 
 Carr v. I''lre Assur. Ass 
 
 " V. I''ire Ins. Co 
 
 t'arringlon v. City of St. Louis 
 
 Ins. Co ... 
 
 Case V. Mannf. I''. A M. Ins. Co. 
 
 " V. Sun Ins. C ) 
 
 ('asey v. Goldsmith 
 
 ;M5 
 
 14 1« 
 
 1416 
 
 2006 
 
 200c 
 
 :i81 
 
 381 
 
 5:J9 
 5.55 
 209 
 210 
 
 •.m 
 :t77 
 o:{6 
 oil 
 
 rm 
 
 405 
 70 
 
 tiOO 
 010 
 
 iiil 
 ;t22 
 
 40 
 
 ;t7o 
 25b» :«2 
 
 215 
 
 125 
 218 
 
 :i,s,s 
 2S,S6 
 
 270 
 104 
 272 
 tlO 
 151 
 
 2I)S 470 
 370 020 
 
 ;t45 550 
 >H)il 407 
 
 :t(i<.i 
 375 
 
 311 
 311 
 311 
 112 
 
 I) 
 018 
 
 545 
 5 HI 
 510 
 181 
 
 lIMt 173 
 281,/ 112 
 
 ;i."),s,( ri7o 
 
 12.") 11)1 
 li^l 010 
 
 285 4:t3 
 370 022 
 3:iO„ 521 
 
 352 .504 
 
 ;1I0 514 
 
 3:;s 510 
 
 305 580 
 
 308 
 
 37(1 
 
 21 
 
 315 
 
 Cashan v. N. W. Nat Ins. Co . . , 
 
 305 
 ;i8i 
 
 401 
 207 
 272 
 343 
 
 004 
 
 023 
 
 30 
 
 005 
 030 
 077 
 387 
 397 
 519 
 
XIV 
 
 INSURANCE LAW OF CANADA. 
 
 CiiMtullaiii V. I'rt'.-ston. 
 
 Catesby's ciwe 
 
 Catlin V. SpriuKllold F. Ins..Co . . 
 
 Catoir v. Amer. Life Ins. Co 
 
 Cedar Shin(<le Co. v. Rlniouski 
 
 Ass. Co 
 
 Central Hk. of Washington v. 
 
 Hume 
 
 Central t'ilv Ins. Co. v. Gates — 
 Central Vermont Ry. Co. v. Mut. 
 
 F. Ass. of iMontmagny 
 
 Central Vermont insurance case. 
 Chalmers v. Mut. F. Ins. Co 
 
 Piir. Pnm' 
 
 ua i«7 
 
 35:1 570 
 
 7K ia7 
 
 287 4;{7 
 
 :f22 mi 
 
 ;«} 5<i7 
 
 aiit UK) 
 •,m (KM 
 
 Chamberlain v. Insurance Co. 
 
 Chamliers v. •' 
 
 Chandler v. " — 
 
 Chandos v. American Fire Ins. 
 
 Co. of I'hila 
 
 Chapman v. Clarke & Unity Life 
 
 Ins. Ass 
 
 Cha|)man rf nl. v. Lancashire Ins. 
 
 Co. it Fraser . 
 
 Chart!st v. Stanslead & Sher- 
 
 brooke Mut. F. Ins. Co 
 
 Chase V. Peonies I''. Ins. Co 
 
 Chatiilon v. Can. Mut. F. Ins. Co. 
 
 ■ATH 5(W 
 
 :tH5 mn 
 
 2Htl 457 
 :i45 557 
 
 ;«t4 im 
 
 404 iW 
 404 (i7H 
 
 212^ 2(W 
 
 41(1 (W7 
 
 274f( 401 
 
 Chicago Guar. Fund L. Soc. v. 
 
 Wilson 
 
 Chisholm v. Xat. Cap. Life Ins. Co. 
 Clu'isman v. State Ins. Co 
 
 ■At! 
 
 Christmas V. Uorduas. 
 
 •Mi 
 124 
 
 2H8r 
 
 :«it 
 :t.")2 
 
 5-10 
 
 .■>2:t 
 
 l!N( 
 
 m\ 
 
 (i5(i 
 102 
 451 
 (Mi2 
 104 
 5<l;i 
 
 Church of St. George, of Ulencoe, 
 
 V. Sun Fire Oflice of London — 
 
 Citizens Ins. Co. v. Boisvert 
 
 Kourguignon. 
 LefraiK^ois. . . . 
 
 V. Parsons 
 
 V. Holland. . . . 
 V. Salterio. . . . 
 & Invest. Co. 
 
 Citizens Ins. & Invest. Co. & 
 Lajoie 
 
 City Mut. Ins. Co. v. Stiefel 
 meyer 
 
 City of Chicago v. Phu-ni.x Ins. Co, 
 
 City of Ldn. F. Ins. Co. v. Smith. 
 
 212 2.W 
 
 ■Xii .TJKt 
 
 40:) 074 
 
 328 514 
 
 112 181 
 
 345 55;» 
 
 m m 
 
 no 170 
 
 2nia :t.TO 
 
 272(( 308 
 
 •.m 481 
 
 city of St. .loseph v. Krnst 
 
 Clark V. Aliens 
 
 " y. (ilens l''alls Ins. Co 
 
 " et til. V. Knnxville F, Ins. Co 
 " V. Wi'stern Ins, Co 
 
 Clarke f/ ii.i: v. Fireman's Ins. Co. 
 " & Provincial Provident In- 
 stitution 
 
 Clarke v. Scottish Imperial Ins. ('o 
 " V, Union Fire Ins, Co 
 
 (I 
 
 I 
 
 I 
 
 272rf 308 
 
 :»4 5;{0 
 417 088 
 323 505 
 374 OKI 
 403 075 
 417 088 
 310 401 
 •XWc 523 
 •.VMi 521 
 i;i2fc 2o;i 
 141 208 
 
 220/) 274 
 
 103 210 
 
 40 70 
 
 02 170 
 
 312 548 
 
 353 508 
 
 350 572 
 
 412 080 
 
 413 080 
 
 Claflin v. Commonwealth Ins. Co. 
 
 Clarry v. Brit. Am. Ass. Co 
 
 Clay V. Harrison 
 
 Cleaver y. Mutual Reserve Fund 
 
 Life Ass 
 
 Clements v. London & N. W. Ry . . 
 
 Clevenger v. Mut. Life Ins. Co 
 
 Clift v. Schwabe 
 
 Par. Page 
 370 032 
 ;)80 mi 
 IMd 205 
 
 Clubb V. Ainer. Ace. Co. of Louis- 
 ville 
 
 Clunr v. Mut. Ben. Co 
 
 Cobb V. Covenant Mut. Ben. Ass'n 
 " y. Pref. Mut. Ace. Ass'n of 
 }i.Y.efnl 
 
 Cockburn v. British Amer. Ass. Co 
 
 227 278 
 
 ;<05 503 
 
 322 4iKi 
 
 38;< (H7 
 
 " 040 
 
 ;H;«)f/ 524 
 
 :W4 0.50 
 288c 451 
 
 Cockerill v. Cincinnati Mut. Ins. 
 
 Co 
 
 Coft'man v. Niagara F. Ins. Co 
 
 Colin v. Continental Fire Ins. Co. 
 
 " v. Orient Ins. Co 
 
 Cohen v. Ins. Co 
 
 Coldhain v. Amer. Cas. & Sec. Co. 
 
 v. Pac. Mut. L. Ins. Co. 
 
 Coles v, .lelFer.son Ins, Co 
 
 Collet V. .Morison 
 
 Collingridge y. Royal Ex. Ass. Co. 
 Collins y. Hankers Ace. Ins. Co. 
 
 I'f III 
 
 do 
 
 ('ollins y. Locke 
 
 Columbia Ins. Co. v. Lawrence . . 
 Comm'l Bank of Australia, in ir. 
 
 Comni'l Bank of India, in re 
 
 Comm. Fire Ins Co. v. Ives .. 
 
 " V. Morris <■/«< 
 Commercial Ins. Co. v. Huck- 
 
 berger 
 
 Commercial Ins. Co. v. Spank- 
 
 ncble 
 
 Connn. Ins. Co. of Calif, v. Fried- 
 lander (i id 
 
 Com'l Mut. Bdg. Soc. of Montreal 
 
 v. Ldn, Guar. & Ace 
 
 do 
 
 Com. .Mut. Life Ins. Co. v. Luchs. 
 ('omm. Union Ass. Co. y. Canada 
 
 Iron .Mining Co 
 
 Comm. Union Ass, Co, v. Lister. 
 
 Commonwealth v. HIddle 
 
 " V. E(|uitable Hen. Ass, 
 
 " y. Monilngstar 
 
 v. Phil. Ini|uirer 
 
 " v. Wetherbee 
 
 Compton v. Mercantile Ins. Co.. 
 
 ;«!5 
 III 
 254 
 203 
 324 
 
 45 
 
 ;«i8 
 
 47/' 
 37.5' 
 370 
 305 
 •.Wf 
 370 
 322 
 
 •.m,i 
 
 .50 
 
 588 
 180 
 3.53 
 4(« 
 .508 
 
 75 
 (K)4 
 
 82 
 017 
 024 
 (HK) 
 .525 
 024 
 400 
 521 
 
 84 
 
 1346 2(H 
 
 305 
 :i84 
 
 :m 
 
 155 
 418 
 418 
 322 
 
 58(1 
 (i.50 
 KiH 
 215 
 OlHl 
 
 (too 
 
 407 
 
 330<( 510 
 370 020 
 •,ma 521 
 370 020 
 
 300 507 
 ;«(8 005 
 170 220 
 
 318 ,550 
 
 353 am 
 
 417 088 
 
 25/i 41 
 
 417 088 
 
 305 503 
 
 20 21 
 
 101 174 
 
 108 178 
 
 100 170 
 
 282 
 322 
 
 410 
 404 
 
 Conboy v. Ry. Ollls. & Kmpl. Ace. 
 
 .Vss'n ;«I5 580 
 
 ('oncordia F. Ins. Co. v. .lohnson. 330f/ 518 
 
 Cone v. Ins. Co 304 (KI2 
 
 Conf. Life Ass. Co. v. C'orp. of City 
 
 of Toronto ;U)7 573 
 
 do 4(K) (U(0 
 
 Conf. Life A.ss. Co. v. Miller 287/' 140 
 
TABLE OF CASES. 
 
 XV 
 
 Conf. Life Ass. (^o. v. O'Donnell. 
 
 Var. P»gi' I 
 (W (17 ' 
 71 100 
 
 Connecticut Mnt. L. inn. Co. v. 
 
 N. Y. & N. Haven R. R. Co . . . . aiS 505 
 
 Connecticut Mut. L. Ihh. Co. v. 
 
 l^nion Trust Co 395 Wio i 
 
 Connecticut River Mut. F. Iuh. i 
 
 Co. V. Way 417 'I** ' 
 
 Connover v. Mut. Ins. Co 
 
 Continental Ins. Co. v. Chew. 
 
 Pur. IMgL' 
 
 Cultivators A8.s. Co. v. Grammon. 72 KtO 
 
 74 101 
 121 191 
 
 :«)5 4S1 
 m)-i 524 
 :i75 (11 H 
 
 :«)5 tss 
 
 XM 521 
 
 :)22 501 
 
 :W5 
 
 410 
 191 
 21H 
 019 
 
 OSH 
 Oh9 
 025 
 
 07H 
 
 2;«) 
 
 45 
 
 401 
 
 •.md 524 
 
 4o;i 
 4o;i 
 
 " '■ V. Munns 
 
 " " V. Pearce. . . . 
 
 " " V. Ruckman 
 
 Continental Life Ins. Co. v. Cham- 
 berlain 3;{0f/ 519 
 
 Continenti)' I ife Ins. Co. v. Rogers 207 
 
 Continental 1 ife Ins. Co. v. Volger 124 
 Converse v. Citizens' Mut. Ins. Co 159 
 " v. Prov. Ins. Co. of Can. ;175 
 Conway V. BritanniaLife Ass. Co. :120 491 
 Cook V. StanilanI L. & A. Ins. Co JWOrr .521 
 
 Cooke V. Warner 417 
 
 417 
 
 Cooper V. U. S. .Mut. Ace. Ass . . :J70 
 " V. r. S. Mut. Hen. As.s . 404 
 
 V. Shaetler IHl 
 
 Cope V. Rowlands 20 
 
 Coppv. Glasgow & London Ins. Co. 274 
 Corbilt ft III. V. Metrop. Lift 
 
 Cornell v! Lpl. &' Ldii'.'it lilohe 
 
 Ins. Co 
 
 do 
 
 Cornisli v. .-VliinKtoii 40;i 
 
 V. Accident Ins. Co 27( 
 
 " :)<15 
 
 CorriRan v. Lycoming V. Ins. Co. ;iHO<» 519 
 
 Corson, .Vppeiil of, E.\(T 1H5 2;il 
 
 Cosgrove v. Keystone K. Ins. Co. :)22 
 
 Cote V. Sladacoiui Ins. Co :iit9 
 
 Gotten V. Casualtv & Fidelity Co. 27<' 
 
 ' 2««c 4.54 
 
 Cotton, etc., Life Ins. Co. v. Scurry 104 175 
 Couch V. Cily Fire Ins. Co. of 
 
 Hartford 50 
 
 Co\inty liife As.s. Co., (')i re 359 
 
 Cousii'ioau V. Citv of Ldn. F. Ins. 
 
 Co 4o;< 
 
 do 4o;) 
 
 CraiK'en v. M. A. Life Ins. Co ... . 122(» IIH) 
 
 Croft V. Hanover Ins. Co. et nl. . . ',W(i 51H 
 
 '• " " " ... ;i;«)f( 519 
 
 '• ' ... m;«(I«/525 
 
 " '• " " ... ;t.5i rm 
 
 " v. Luniley 77 
 
 Ciomwi'll v. llrooklyn Fire Ins Co. 
 
 Cronkliil)c v. 'rriiv. Ins. Co 
 
 Crook V. Phicni.v Ins. Co 
 
 Cross V. ArnistronK 417 
 
 " V. Hril. .Vm. Ass. Co 305 
 
 Crosslev V. City of Glasgow Life 
 Ins. Co 2(Ht 252 
 
 do 2096 25:i 
 
 Crosslev V. Connecticut Ins, Co.. UHl (KIH 
 
 Crowlev v. Cowen I'M)/ 199 
 
 Crown I'oint Ins. Co. v. /Ktua Ins. 
 
 Co 2<l(V/:tH2 
 
 Cro/ier v. Homo Life Ins. Co I«15 5H9 
 
 " ■M\ 019 
 
 " PlKcnl.x Ins. Co 133 203 
 
 071 
 
 073 
 
 (r7(l 
 
 51 
 
 584 
 
 495 
 52 
 
 K5 
 
 57S 
 
 073 
 070 
 
 lis 
 
 >V2ii 200 
 ;«i5 .">S9 
 2H2(( 42:1 
 0S7 
 477 
 
 417 688 
 
 ;il0 .544 
 
 2(H)a 252 
 VMia 197 
 i;i06 llXt 
 213 208 
 221 270 
 
 Curie v. Continental L. I. Co 
 
 Curnow v. "Phtenix Ins. Co. of 
 Hartford 
 
 Curtin v. Grand Lodge of Mis- 
 souri, A.O.U.W 
 
 Ciirtis V. Caledonian Fire & Life 
 
 "•IV Ins. Co 
 
 Cusack V. Mut. Ins. Co. of Buflalo. 
 ti tt ,( ii 
 
 Cusson V. Faucher 
 
 (4 .( 
 
 " V. Metropolitan Life Ins. 
 
 Co 281rf413 
 
 Cuthhert v. North American Life 
 Assurance Co 2.56 30 
 
 U 
 
 Dade v. .Ktna Ins. Co :!94 
 
 Dakin v. Liverpool & London & 
 
 Globe Ins. Co 212a 
 
 Dalby v. India & London Life 
 
 Ass. Co 21 
 
 do 124 
 
 do 125 
 
 Dallaire v. Societe Rienveillante 
 
 dcSt. Roch ;f{8 
 
 70 
 8(M$ 
 :)70 
 ;1I5 
 21 
 .'15a 
 
 Dal/.cll v. .Mair 
 
 Dane v. Mortgage Ins. Corp, . . 
 
 Dantcl V. Penn. F. Ins. Co.,.. 
 
 Darling, hi ;r 
 
 Darrell v. Tibbitta 
 
 Darrow v. Family Fund Soc 384 
 
 Davenport v. Tiie Queen 78 
 
 David v. Stadacona Ins. Co 402 
 
 Davidson v. Guardian A>8. Co. of 
 
 London ;J75 
 
 Davies, Davies v, Davies, in re. . . 220(' 
 
 Davies v. Home Ins. C'o 177 
 
 V. National F. & M. Ins. 
 
 Co. of New Zealand '287/ 
 
 Davies Policy Trusts, in re 2'20'(/ 
 
 Davis V. .Vnchor Mut. F. Ins. Co. :181 
 
 " V. Davis :j71 
 
 " V.Grand Rapids F. Ins. (^o. ;»22 
 
 ' :t70 
 
 :i79 
 '207 
 322 
 
 :t8i 
 
 149 
 45 
 
 ;tK't 
 
 V. Scottish Prov. Ins. Co, 
 
 Dawson v. Fitzgerald 
 
 " V. Craniney 
 
 Dayton Ins. Co. v. I\elly 
 
 Dean v. American Mut. Ass, . 
 
 " v. Insurance t'o 
 
 Dear v. Western Ins. Co H22 
 
 De Ganiinde v. Pigon 70 
 
 De (iogorza v. Knickerbocker L. 
 
 Ins. i:o ;i8a 
 
 De Grail" v. Queen Ins. tlo HI5 
 
 De.Iernette v. Fid. ti Cas. Co.... ;tO<l 
 
 De Loy v. Travelers Ins. Co H05 
 
 Demontigny v. Agile. Ins. Co. of 
 
 Watertown !t5(( 
 
 Dennistonn v. Lillle 2.'<7r 
 
 Devrit^k V. Lamar Ins. Co 404 
 
 Detra, receiver, v. Lock ;t40 
 
 " V. Murray :t40 
 
 De Van v. Com. Trav. Mut. Ace. 
 
 Ass'n of America ;105 
 
 do. " " " ;J70 
 
 001 
 
 259 
 
 24 
 192 
 194 
 
 .541 
 
 99 
 <M)1 
 021 
 554 
 
 25 
 .51 >8 
 051 
 125 
 070 
 
 010 
 275 
 •2'20 
 
 445 
 275 
 
 tm 
 
 Oil 
 499 
 010 
 
 o;n 
 ;t8o 
 
 4IKt 
 
 fi:i8 
 
 214 
 75 
 049 
 522 
 194 
 9t) 
 
 017 
 5.55 
 597 
 
 5H5 
 
 5(12 
 i:t7 
 079 
 514 
 .544 
 
 591 
 022 
 

 XVI 
 
 INSURANCE LAW OF CANADA. 
 
 Par. Pago 
 Devens v. Mech., etc., Ins. Co — 330a 520 
 Devereux v. Sun Fire OflBce of 
 
 London 352 504 
 
 Devitis V. Royal Templars of Tem- 
 perance 3.32 531 
 
 Devlin v. Queen Ins. Co 250 350 
 
 " 340 5.57 
 
 V. Western Ass. Co 32 65 
 
 De Witt V. Agric. Ins. Co. of 
 
 Wiitertown 'Ml 474 
 
 do 370 filO 
 
 Dial V. Valley Mut. Life Asa 395 (Mi5 
 
 " " " " 395 600 
 
 Diamond Plate Glass Co. v. Minn. 
 
 Mut. F. Ins. Co 417 687 
 
 Dick rt al. v, Equitable F. & M. 
 
 Ins. Co ',mah-l\ 
 
 Dickernian v. Quincy Mut. F. 
 
 Ins. Co 322 .500 
 
 Dill V. Quebec Ass. Co :«« (KW 
 
 " :^69 (too 
 
 Dlnsee v. Agric. Ins. Co 322 4!»« 
 
 Dobbel's estate, inrii 330f( 518 
 
 Do(1(1m et (d. V. Ancient Order of 
 
 United Workmen (7 ctl 21(ir< 271 
 
 Dodds V. Can. Mut. Aid Ass'n .... :«15 .■)i»2 
 
 Doe Nash v. Birch 77 IIH 
 
 Doe V. (Jladwin 130 197 
 
 Do«Ke V. Insurance Co 370 020 
 
 Dolen I't (il. V. Metropolitan Life 
 
 Ins. Co. et at tlM 2«1 
 
 Dominion Grange Miit. Fire Ass. 
 
 V. Hrmit 100 177 
 
 Dom. I'rov. Henev. & Endowment 
 
 Ass 419 093 
 
 DouKiiii V. Sun F. Office of Ldii. . 417 (W 
 Dtu-ioii V. Positive Life Ass. Co.. . 409 (iSi 
 
 Dormav v. Horradaile 3S3 049 
 
 Dowkc'r V. Can. Life Ass. Co. ... 122(( 1!H) 
 Dozicr V. Fidelity it Casualty Co. Tib 51 
 Dreii'i v. Contin. L. Ins. Co. of 
 
 Hartford 395 0(10 
 
 Dryer v. Security F. Ins. Co 330r( MS 
 
 Du'ehai me v. Tiio Mut. Fire Ins. 
 
 Co. of Laval, etc 2S2 415 
 
 Dull' V. Can. Mut. F. Ins. Co 40 70 
 
 332 5;t0 
 
 333 .535 
 
 " V. Fire As.s'n of Pliilad 370 024 
 
 Ducharme v. Mut. F. Ins. Co, of 
 
 Laval, etc 375 017 
 
 Dunlop V. I Isliorne 30H 4H5 
 
 Dupuis V. Nortii Brit. & Merc. 
 
 Ins Co 30H («I3 
 
 do 371 on 
 
 Duiiuy V. Delaware Ins. Co :i:iO(( 521 
 
 D\nyee, Comm'r, v. U. S. Credit 
 
 System Co *«)'/ 521 
 
 Dustin V. Hochelaga Mutual Fire 
 
 Ins. Co . 293 403 
 
 Dutch West India Co. V. Moses.. 100 (W2 
 
 Duval V. Northern Ass. Co 322 495 
 
 Dwir.llouse Ins. Co. v. Brewster. 375 018 
 
 V. Dowdall . 3:tO(( 519 
 
 . 33()(/524 
 
 " " " . 3;«l.' .525 
 
 V. Osboin... 375 019 
 
 V. Snyder... 'XVOu 521 
 
 " " ■" ... 3:10(' 525 
 
 B 
 Eanies v. Home Ins. Co 322 495 
 
 Par. Page 
 Earl of Winchilsea's Policy 
 
 Trusts, in re 207f/ 251 
 
 Easley v. Valley Mut. Life As.s'n. ;440 544 
 Eastern Townships Mut. F. Ins. 
 
 Co. V. Bieu venue 380 6.55 
 
 Eastmure v. Can. Ace. Ass. Co. . . 328 514 
 p;ast Texas F. Ins. Co. v. Blum. . 3;« 517 
 
 Eaton, in re 214 208 
 
 Eclectic Life Ins. Co. v. Fuhren- 
 
 krug 
 
 Elliott v. Nat. Ins. Co 
 
 " V. Royal Ex. Ass. Co. 
 
 Ellis V. Ins. Co. of N 
 Ellison, .John B., & 
 
 tloners 
 
 Elsberg, Meux, v. Ilwards 
 
 A 
 
 Sons, 
 
 322 
 310 
 
 380 
 ;H81 
 Wn 
 
 406 
 4H6 
 («15 
 OlVi 
 MtA 
 
 peti- 
 
 Prud. Ins. Co. 
 
 •XM)i1 524 
 212c 205 
 
 Eisner, admrx, v 
 
 of America ;i30r/ .518 
 
 Edge V. Uuke 77 118 
 
 78 130 
 
 Edwards v. Footner 287f^ 4;»8 
 
 v. Insurance Co 3(W 004 
 
 v. West 14.5<( 212 
 
 Egan v. Westcliester F. Ins. Co. . X^)n 518 
 Kmott V. Slater Mut. Fire Ins. Co. 2(tO<( 370 
 Empl. Liab. Ass. Co. v. Com'r of 
 
 Insurance 417 087 
 
 Empl. Lial). Ass. Co. V. M rill... 417 088 
 " " l-'orp. V. En. p. lilab. 
 
 Ins, Co 417 087 
 
 Ennilo\is, The. in re ... 3()2 iV*(> 
 
 England v. Lord Tredegar 3.5.S6 570 
 
 Ennis V. Iliirinony Fire Ins. (^o . 212fT, 2(K) 
 Eipiilalde Ins. Co. v. Board of Eq. 
 
 of Des Moines 417 087 
 
 Ecpiltable Ins. ("o. v. Clements . . 417 <(8S 
 V. Cole (7 ((/. . 330'; 522 
 V. Cote (•<«/.. . 330r( 518 
 V. Perrault... 380 055 
 
 V. Probst 322 .501 
 
 " " V. Qiiinii :145 5.53 
 
 Erb V. Gernian-.Vmerican Ins. Co. 370 020 
 lOrnian v. Insunmci' ('onipan\ . . . 379 032 
 Erniantraut if til. v. GIrard (•'. & 
 
 .M. Ins. Co 33ll(; .525 
 
 Evans V. Illgnold 3.58 575 
 
 lOverett v. London & Lane. Ins. Co 3.50 502 
 " V. London Ins. Co ;f01 .578 
 
 I'' 
 
 I'alcke v. Seottisli Imperial Ins. Co 207c 2iiO 
 Faneull Hall Ins. Co. v I-pl. & 
 
 lidn, & (ilolie Ins. Co 
 
 Farnum v. Phienlx Ins. Co 
 
 Fatisl V. Am. F. Ins. Co. . . . 
 Feibehnan v. Manch. F, A-- O. 
 
 KIdelitv & Cas. Co. V. Cli:iinltt 
 el 111'. 
 
 I'Mdelii V & Cas. Co. V. Consolidated 
 Nat. Bk 
 
 Fidelity iV Cas. Co. v. .lolinson. . . 
 " " V. Watei'inan 
 
 Fidelity Mut. Life Ass. v. Kicklin 
 
 Field V. Mavor, etc 
 
 Flniiley v. I'^'lre Ins. Co. of N. ,\ . 
 
 I'lnlay'v. Mexican Invest m'l Corji. 
 
 I'lre & Marine Ins. (^o. v. Chest nut 
 
 Fire. Insurance Ass'n v. Canada 
 F. it M. Ins. Co 
 
 -.».' 
 
 519 
 
 I'.).. 
 
 518 
 
 ." I 
 
 ri02 
 
 ■ .'■) 
 
 619 
 
 ■k>I 
 
 t)82 
 
 Ti' 
 
 631 
 
 30ii 
 
 r„'<4 
 
 '100 
 
 597 
 
 :i05 
 
 581) 
 
 305 
 
 588 
 
 288^j 
 
 451 
 
 :«»5 
 
 481 
 
 279r/ 400 
 
 300 
 
 599 
 
 104 
 
 079 
 
 342 547 
 
TABLE OP CASES. 
 
 XVll 
 
 1)5 Mi 
 
 t;«)') 
 
 i)22 
 
 \:v)ii 
 
 .-,18 
 
 1S(1 
 
 (•)■).") 
 
 .122 
 
 501 
 
 ;iir> 
 
 55;j 
 
 :f7ii 
 
 (120 
 
 :t7i> 
 
 (Kia 
 
 ■.mi 
 
 525 
 
 :fr.H 
 
 O/i) 
 
 ;s5() 
 
 5ti2 
 
 :«(! 
 
 5-S 
 
 207f 250 
 
 '(».* 
 
 511) 
 
 '••!•■,, 
 
 51S 
 
 ." » 
 
 502 
 
 ..' ') 
 
 1)11) 
 
 Int 
 
 i>82 
 
 j;( 
 
 o:ii 
 
 ,«lii 
 
 581 
 
 :iO(i 
 
 51)7 
 
 :f05 
 
 581) 
 
 H(i5 
 
 588 
 
 •>HHh 151 
 
 :«)5 
 
 181 
 
 270f/ 10(1 
 
 am) 
 
 5lH) 
 
 101 
 
 070 
 
 •M2, 547 
 
 Par. Page 
 
 Fir<? Insurance Co. v. Felrath. . . . 376 «21 
 Fireman's Fund Ins. Co. et al. v. 
 
 Norwood et ul :101 473 
 
 Fireman's Ins. Co. v. Floss & Co. 127 1U5 
 First National Bank of Ballston 
 
 Spa V. Ins. Co. of N. A 287c 430 
 
 First Nat. Bk. of Devil's Lake v. 
 
 Amer. Cent. Ins. Co 301 474 
 
 do 370 022 
 
 First Nat. Bk. of Devil's Lake v. 
 
 Mancii. F. Ass. Co 375 Oil) 
 
 First Nat. Bk.of DuImkiuc v. Getz SV) S17 
 Fisher v. Fislier (Conim. Trav. 
 
 Mut. Ben. Soc. of Western 
 
 Ontario) ;«9 542 
 
 Fitch v. Am. Popular Co 288 440 
 
 2886 448 
 
 Fitzrandolpli v. Mut. Rel. Socv. of 
 
 Nova Scotia :W OS 
 
 do 281(/ 412 
 
 Fitzworth v. Amor. Cent. Ins. Co 330f 525 
 Fleming v. London & Lancashire 
 
 Ins. Co 80 151 
 
 do 325 510 
 
 Fo(?K v. Supr. Lodge Order of 
 
 Oold.in Lion 421 003 
 
 Follis \. U .S. Mut. Ace. Ass'n. . . 305 58-1 
 Fonderie de Joliet v. Stadacona 
 
 Ins. Co 203 402 
 
 Foote v. A^tna. Life Ins. Co 284(i 421) 
 
 " " " 322 408 
 
 Forbes V. Am. Mut. Life In.s. Co. 124 102 
 
 Foreliand v. Niagara Ins. C'o 370 031 
 
 For^ie v. Koyal Ins. Co ;J07 484 
 
 li'owkes v. Mancliester & London 
 
 L. Ass. Co 207 383 
 
 Fowler v. Metrop. Life Ins. Co. .. !{58e 570 
 
 " v. Scottish Equit. Ins. Co. 322 408 
 Franklin Sav. Inst. v. Central 
 
 Ins. Co 2126 203 
 
 Frank v. Sun Life Ass. Co 79 141 
 
 Franzen, assignee, v. Zimmer. .. . 328 514 
 Fraser v. Gore Dist. Mut. F. Ins. 
 
 Co 328 514 
 
 do 351 503 
 
 Freeman v. Travelers Co 27c 52 
 
 French v. Mutual Benefit Life 
 
 Ins. Co 70 118 
 
 Fried v. Royal Ins. Co 01) 1)5 
 
 110 182 
 
 Fuchs V. Gerniantown Farmers 
 
 Mut. Ins. Co 352 505 
 
 Furlado v. Rogers :«>2 580 
 
 O 
 
 Oalentine v. Mut. Ben. L. Ins. Co. 383 0.-)0 
 
 Gareeau v. Niagara Mut. Ins. Co. 375 018 
 
 Gardner v. Standard Ins. Co 3.'tO 517 
 
 Garner V. Germania Life Ins. Co. 2;W 203 
 (iauler v. Solicitors' Loan & Trust 
 
 Co 31 (13 
 
 Gauthier v. Waterloo Mut. Ins. Co 102 175 
 
 280 45« 
 
 mS 4(18 
 
 ;W5 053 
 
 Gendron Iron Wheel t'o., in re... •104 077 
 
 Genesee Mut. Ins. Co. V. SVesttnan 10(1 082 
 
 Georgia Homo Ins. f'o. v. Stein 
 
 ft al :i'10»t 521 
 
 Georgia IIon)e Ins. Co., in re 3U4 (MM 
 
 Gore V. Ins. Co 308 (108 
 
 Gerling v. Agric. Ins. Co 375 018 
 
 u 
 
 German Amer. Ins. Co. v. Com. 
 
 F. Ins. Co 
 
 German-Anier. I. Co. v. Etherton. 
 V. Hart 
 
 Fur, Pago 
 
 mS 549 
 :181 (138 
 XiOa 521 
 
 " Xmd 524 
 
 V. Humphrey 330a 519 
 330c 524 
 
 German- Amer. Ins. Co. of N. Y. v. 
 
 Waters 
 
 do 
 
 German F. Ins. Co. v. Columbia 
 
 Encaustic Tile Co 
 
 do 
 
 German Fire Ins. Co. v. Laggart. 
 " " v. Thompson. 
 
 German Ins. Co. v. Brown 
 
 v. Everett 
 
 " V.Hart 
 
 aaoa 518 
 iiSO 502 
 
 " V. Ward 
 
 German Ins. Co. cf Freeport v. 
 
 Churchill 
 
 German Ins. Co. of Freeport v. 
 
 Hall rt nl 
 
 German Ins. Co. of Freeport v. 
 
 Hayden et nl 
 
 German Ins. & Sav. Inst. v. Kline 
 
 German Mut. Ins. Co. v. Niewcdde 
 
 Germania F. Ins. Co. v. Deckard. . 
 
 V. Stewart <•< 
 
 al 
 
 Germania Ins. Co. v. Swigert ... 
 Get/ v. E(|uil. L. Ass. Soc.. 
 
 Gil)son v. Small 
 
 (iill'ard v. Queen Ins. Co 
 
 Giles V. Brock 
 
 " V. Girou.x 
 
 " V. ilacques 
 
 Gill V. Canada Fire & Mar. Ins. Co. 
 
 " V. Downing 
 
 Gillett V. Liverpool & London & 
 
 (ilobe Ins. Co 
 
 Gilmuur et nl. v. Dyde et nl 
 
 Girard F. & M, Ins. Co. et al, v. 
 
 Fryniier et al 
 
 Girard Life Ins. Co. v. Mut. Life 
 
 Ins. Co 
 
 Glasgow it liOndon Ins. Co., »«/•«. 
 
 (ioddani v. Monitor Ins. Co 
 
 (iodsall V. Boldero 
 
 XMki 518 
 3:iOc 524 
 00 09 
 304 062 
 370 022 
 ■£Hki 521 
 •.ma 521 
 ;145 556 
 
 :)70 tno 
 
 210 255 
 
 37(1 021 
 
 imd 524 
 375 fll8 
 37(! 022 
 :U5 655 
 
 370 021 
 417 OSK 
 :m 517 
 207 :w4 
 U5(( 170 
 
 3:u 5:<o 
 
 75 101 
 
 07 00 
 
 134 2(» 
 
 345 55ft 
 
 207fi 249 
 
 211 256 
 345 555 
 
 375 018 
 
 Goedeeke v. Metro. Co 
 
 ttolde et al. v. Whipple el al 
 
 (Joldstone v. Osborne 
 
 Goode et al. v. (ieorgia Home Ins. 
 Co ' 
 
 Goodfellow V. The Times and Bea- 
 con Ass. Co 
 
 Goodman V. Ins. Co 
 
 Goodwin V. Ijancashire Ins. Co. . . 
 
 340 544 
 
 418 (H)0 
 
 416 73 
 
 21 25 
 
 125 194 
 
 04 170 
 
 ;KI2 475 
 
 380 o;i5 
 
 322 601 
 
 " V. Mass. Life Ins, Co. 
 Gordon v. Manufacturers' Co. . . 
 
 115 182 
 
 370 ((2X 
 
 108 178 
 
 113 181 
 
 200 37& 
 
 207 :W8 
 27l)rt 405 
 27))a 406 
 
 322 494 
 
 370 02:i 
 
 40:t 074 
 
 124 191 
 
 79 142 
 
 79 141 
 
XVlll 
 
 INSURANCE LAW OP CANADA. 
 
 Par. Page 
 
 Gore District Mut. F. Ins. Co. v. 
 
 Samo 270 39.5 
 
 do 282 421 
 
 do 308 485 
 
 Goring v. London Mut. Fire Ins. 
 
 Co 32 65 
 
 do 37 m 
 
 do 38 08 
 
 do 207 385 
 
 do 282 418 
 
 do 333 532 
 
 Go88 V. Agric. Ins. Co. of Water- 
 town 330o 521 
 
 Gottlieb V. Dutche.ss County Mut. 
 
 Ins. Co .372 015 
 
 do 370 023 
 
 'Gouinloclt V. Man. & Mercli. Mut. 
 
 F. Ins. Co 207 !«» 
 
 do 322 404 
 
 Graham v. Canada Life Ass. Co . . 219 272 
 " V. London Mut. Fire Ins. 
 
 Co 2!)4 4ft5 
 
 Graliam v. Ont. Mut. Ins Co 2.58 ;159 
 
 " 291 4.58 
 
 ' 32:$ .504 
 
 " 328 .514 
 
 " 345 555 
 
 ■Grand Lodge A. O. U. W. v. 
 
 Belcliam 288c 454 
 
 Grand Trunli Uy. Co. v. Becltett. ;198 0(i7 
 " " V. Citizens 
 
 Ins. Co -.m 595 
 
 Grand Ti unit Ry. Co. v. Jennings 3i(8 0(i7 
 
 Grant, re : . 220 273 
 
 Grant's admini.strators V. Kline. . 177 22(i 
 
 Grant V. .4';tna Ins. Co 2(i7 ;188 
 
 " 273 100 
 
 " " " 287«> 439 
 
 " " •' 322 495 
 
 " V. Equitable Ins. Co 273 400 
 
 " V. Reliance Ins. Co 102 175 
 
 20li 370 
 
 Grattan v. Metrop. L. Ins. Co. . . . 370 021 
 Grau V. Masons Frat. Ace. Ass. 
 
 of Am ;181 039 
 
 Gravel v. I'Union St. Thonia.s. . . . 332 5;t2 
 Graves v. Merch. & Bankers Ins. 
 
 Co 394 (UH) 
 
 Green v. Lycoming F. Ins. Co 322 49<! 
 
 Greet v. Citizens Ins. Co 194 240 
 
 25-1 :i5;i 
 
 207 389 
 
 " " " 279(/ 408 
 
 " " •' 293 404 
 
 314 488 
 
 '• v. Mercantile Ins. Co 279*/ 408 
 
 " v. Royal Ins. Co 194 240 
 
 279rf408 
 
 " " 293 404 
 
 314 488 
 
 Grenler et rir. v. Monarch F. & L. 
 
 Ins. Co 378 020 
 
 Grcshani v. E(iuit. Ace. Ins. Co. . »(5 589 
 
 Grieser v. Mass. Ben. Ass 417 087 
 
 Griffey v. N. Y. Central Ins. Co, . 200 370 
 
 . ;i05 470 
 
 " " .. ;i05 481 
 
 GriHln v. Western Mut. Ben. Ass. ;184 051 
 
 Grinith v. Ins. Co 84 161 
 
 Grigsby v. (iernian Ins. Co JlfiO 502 
 
 370 023 
 
 Griswold V. Waddington ;102 580 
 
 Grogan v. liondon & Manchester 
 
 Indus. Ass. Co 
 
 Grogan v. U. S. Industrial Ins. Co 
 
 Groll V. Tower 
 
 Grose v. Wood 
 
 Gross v. Fowler 
 
 Gross et al. v. Mil w. Mech. Ins Co. 
 
 " V. Western Ass. Co. . . 
 
 Grosvenor v. Atl. F. Ins. Co. of 
 
 Brooklyn 
 
 do 
 
 Grosvenor v. Insurance Co 
 
 Guardian Ins. Co. v. Connely, 
 
 Far. Page 
 
 287/445 
 
 376 022 
 
 395 665 
 
 20 23 
 
 28 54 
 
 78 137 
 
 375 018 
 
 375 618 
 
 212a 250 
 294 465 
 2126 263 
 270 395 
 
 Guerin v. Manchester F. Ins. Co, 
 
 " V. Manufac. Life. . . . 
 Grlggislierg v. Waterloo Mut. Ins. 
 
 Co 
 
 H 
 
 Hachemy v. Leary 
 
 do . ." 
 
 Ilahn v. Guardian Ass. Co 
 
 Mains v. V'enal)les 
 
 Hale V. Brooklyn Life Ins. Co 
 
 " V. Lite Ind. & Inv. Co 
 
 Ilalford V. Kyiner 
 
 do 
 
 Hall V. Association 
 
 " V. Niagara Fire Ins. Co 
 
 Ilambrongh v. Mut. Life Ins. Co. 
 
 of New York 
 
 Hamilton v Home Fire Ins. Co. 
 
 of Omaha 
 
 Hamilton v. Home Ins. Co 
 
 V. l.pl. & Ldn. & Globe 
 
 Ins. Co 
 
 Hamilton v. Mendcs 
 
 Hamlyii v. Crown Ace. Ins Co, . . 
 
 Hancox v. Fishing Ins. Co 
 
 Hanover Fire Ins. Co. et al, v. 
 
 Parrot te 
 
 Hanover v. Schrader et al 
 
 Harlior Com'rs of Montreal v. 
 
 (i\iar. Co. of N. A 
 
 Hardwiek v. State Ins. Co 
 
 32:1 o0:i 
 
 307 484 
 
 :108 603 
 
 368 005 
 
 ;173 615 
 
 3K5 653 
 191a 236 
 
 266 373 
 
 417 687 
 
 417 688 
 
 :194 OM 
 
 282 421 
 
 328 512 
 
 :W3 040 
 
 124 191 
 
 ... 192 
 
 2126 202 
 
 :W5 48:1 
 
 207 380 
 
 :151 56:1 
 
 ;181 638 
 
 :isi 6:18 
 
 204 247 
 
 3i(5 586 
 
 1.55 215 
 
 370 624 
 
 ;i75 618 
 
 Hardy et ul v. Lane. Ins. Co 
 
 Harnilen v. Mlhv. Mech. Ins. Co, 
 Harris v. London & Lane Fire Ins. 
 
 Co 
 
 do 
 
 Harris v. Nat. Ins. Co 
 
 " V. Waterloo Mut. BMre Ins. 
 
 Co 
 
 Harrison v. German-Amer. Fire 
 
 Ins. Co 
 
 Harrl.son v. Hartford Fire Ins. Co 
 Hart v. Brit. & For. Mar. Ins. Co 
 
 " V. Middleton 
 
 366 506 
 
 47a. 78 
 
 ;122 4(KJ 
 
 :i;Mt(( 520 
 ;ioi 473 
 ;i;»oc 525 
 
 :146 .5.57 
 
 ... 558 
 
 294 465 
 
 :i78 028 
 
 " rt al V. Niagara Ins. Co. et ul 
 
 " V, Tudor 
 
 Hartford Fire Ins. Co. v. Moore . 
 
 V. Orr... 
 
 " " " V. Raymond 
 
 :182 644 
 :152 563 
 284rf 4;« 
 78 126 
 .. 137 
 :i;«)a 521 
 22;t 276 
 ;««)« 521 
 :122 501 
 417 687 
 
TABLE OF CASES. 
 
 XIX 
 
 f/445 
 
 5 622 
 
 ) 605 
 
 ) 23 
 
 4 54 
 i 137 
 a 618 
 
 5 618 
 
 n 6:^8 
 
 U 247 
 
 1)5 586 
 
 *) 215 
 
 160 506 
 \-n 78 
 k22 mi 
 YMd 52U 
 101 473 
 KtOc 525 
 
 (40 557 
 558 
 U4 405 
 
 |78 628 
 
 K2 644 
 
 52 503 
 
 |H4d 4:«) 
 
 78 126 
 
 . . 137 
 
 b)(» 521 
 
 |2:» 276 
 
 IWrt 521 
 
 |22 501 
 
 In 687 
 
 
 Hartford Fire Ins. Co. v. Reynold.s 
 Hnrtford Life & Ann. Ins. Co. v. 
 
 Hiiyden's Admr 
 
 Hartigan v. International Life 
 
 Ass. Co 
 
 do 
 
 Hartney v. North Brit. & Mere. 
 Ins. Co 
 
 do 
 
 HiistinKs Mut. Fire Ins. Co. v. 
 Shannon 
 
 do 
 
 do 
 
 do 
 
 Hathaway v. Orient Ins. Co 
 
 it tt ti «( 
 
 Ilawke V. Niagara District Mut. 
 
 Fire Ins. Co 
 
 do 
 
 Hawlcins v. McCalla et al 
 
 Hawiey v. Micliigan Mut. Life 
 
 IiiM. "Co 
 
 Hazeltlne v. Miss. Valley Fire 
 
 Ins. Co 
 
 Headley v. Hartford Fire Ins. Co. 
 
 Healeyv. Mut. Aco. Ass. Co 
 
 Hehdon v. West 
 
 Heiinan v. PJKcnix Mut. Fire Ins. 
 
 Heller v. Koyal Ins. Co 
 
 Hendershott v. Covenant Mut. 
 
 Ins. Co 
 
 Henderson v. Travelers Ins. Co. . 
 Hcusinliveld v. St. Paul Fire & 
 
 Mar. Ins. Co 
 
 Herald Co. v. Xorthern Ass. Co. 
 Herckenrath v. Anier. Mut. Ins. 
 
 i"o 
 
 Herniany v. Fid. Mut. Life Ass'n 
 
 Heron V. Hartford Ins. Co 
 
 Hess v. Van Auken, Guar. &Aco. 
 
 Lloyds 
 
 Hewiird v. Scottish Union &Nat. 
 
 Ins. Co 
 
 do 
 
 Hey V. Wycho 
 
 Heywood v. Maine Mut. Ace. As'n 
 Hibliert v. Farmers" Mut. Fire Ins. 
 
 Co 
 
 Hiekerson <!<«.< V. Fqiiit. Ins. Co. 
 " " v. (Jerman Am. 
 
 Ins. Co 
 
 do c/ ai V. Koval Ins. Co. . 
 
 Hiddle ft (il V. Nat. F. & M. Ins. 
 
 Co. of New Zealand 
 
 Hill V. Mereh. & Manuf. Ins. Co. 
 
 Par. Page 
 322 500 
 
 330a 510 
 
 268 -.m 
 
 481c 413 
 
 370 
 403 
 
 001) 
 675 
 
 322 
 
 400 
 500 
 .t04 
 . . . .t07 
 212f» 258 
 2126 202 
 
 32;i 
 
 102 174 
 . . 175 
 
 :«!5 am 
 
 IKJOrr 518 
 
 417 688 
 101a -SMt 
 .•«i5 5KS 
 l.'U 102 
 (U 05 
 Sic 20 
 
 175 225 
 :ttOc 524 
 
 370 610 
 375 618 
 
 :W3 .540 
 2S!<c 1.54 
 345 555 
 
 305 585 
 
 382 042 
 
 304 660 
 
 i:to 107 
 
 376 025 
 
 308 485 
 
 .■181 (KH) 
 
 381 (X«» 
 
 " V. Seeretan 
 
 " V. United Life Ins. Ass. 
 
 Hillock V. Traders Ins. Co 
 
 Hitchcock V. Northern Ins. Co. . . 
 
 Hol)l)s V. North Am. Ass. Co 
 
 Holison V. Queen Ins, Co 
 
 Hochelaga Rlutual Intiurance C'o. 
 
 V. Cilrouard 
 
 HochelagaMut. F. Ins. v. Lcfebvre 
 
 Hocking v. Howard Ins. Co 
 
 Holmes v. Mut. Fire Ins. Co. of 
 
 Stanstead and Sherbrooke 
 
 Home Fire Ins. Co. v. Hean 
 
 " V. Fallon .... 
 
 300 607 
 331 5:17 
 418 601 
 l.->;i 214 
 105 2L'0 
 310 401 
 266f 381 
 305 4f-l 
 2.556 355 
 375 010 
 
 3;t4 5:»8 
 3:14 5.38 
 404 078 
 
 271 300 
 375 010 
 ■M)<1 524 
 375 618 
 
 Home Fire Ins. Co. v. GarbiFz . . . 
 " " " V. Hammang 
 
 et nl 
 
 do 
 
 "o 
 
 do 
 
 Home Fire Ins. Co. v. Kennedy. 
 
 (( (4 it it 
 
 Home Friendlv Soc. v. Berry 
 
 tt ti * t. .( 
 
 Home Ins. Co. of N. Y. v. Gibson 
 
 Par. Pago 
 
 ■SiMic 524 
 
 Home Ins. Co. v. Marshall 
 
 " " V. Meyer 
 
 Home Mut. As.s. v. fseager 
 
 Home Mut. Ins. Co. v. Koe 
 
 Home Mut. Life Ass'n v. Gillespie 
 
 Homer V. Ins. Co. ... 
 
 Hone V. Mut. Safety Ins. Co 
 
 Hood V. Western Ass. Co 
 
 Hoop, The, in re 
 
 Hoose V. Prescott Ins. Co. of 
 
 Boston 
 
 Hortit V. City of London Fire Ins. 
 
 Co 
 
 Hosford V. Germania Fire Ins. Co. 
 Houston Direct Nav. Co. v. Ins. 
 
 ("o. of N. Am 
 
 Hoven v. Kmpl. Liab. Ass. Corp. 
 Howard v. Lancashire Ins. Co.. 
 
 4* 4i tt .. 
 
 Howard Ins . Co . v . Owens 
 
 Howes V. Dom. F. & M. Ins. Co. 
 
 Hubbard v. North Brit. & Merc 
 Ins. Co 
 
 Hughes v. Hand in Hand Ins. Co 
 " V. London Ass. (Jo 
 
 Hughson V. Hardy ft td 
 
 Hunt V. Home Ins. Co 
 
 Ilurrell v. Bullard ft ill 
 
 Hutchison v. Nat. Loan Ass'n. . . 
 
 Hiitchraft's Kxecutors v. Ti-avcl- 
 ers Ins. Co. of Hartford 
 
 Hutton v. Brown 
 
 473 
 
 615 
 618 
 622 
 6:{0 
 . . 642 
 •2Wb 451 
 XMUi 520 
 •.iHki. 521 
 375 619 
 
 301 
 372 
 375 
 ■76 
 .181 
 
 661 
 679 
 616 
 
 .■«I4 
 4(U 
 
 ;m 
 
 345 .5.55 
 28Hr 4.54 
 Xm .522 
 343 549 
 Vila 202 
 :«i2 .580 
 
 2H8 447 
 
 404 079 
 
 28,Sc 454 
 
 :m .570 
 
 3iNi 667 
 
 127 105 
 
 1.50 217 
 
 47(/ 81 
 
 105 242 
 
 315 488 
 
 3.50 .561 
 
 ;t5;i .506 
 
 . . 5<f8 
 
 ."176 620 
 :181 (HI 
 :<81 637 
 330 517 
 138o 207 
 i:io 106 
 281/' 414 
 
 I 
 
 Illinois Mut. Ins. Co. v. Fi.x 
 
 " " " v. Hoirmaii. 
 Imperial Fire Ins. Co. v. Bull. . . . 
 " " " V. Home In- 
 surance Co. of New Orleans 
 
 Imperial Life 'ns. Co. v. Ham- 
 
 bitzer 
 
 Indiaiui Ins. Co. v. Ilartweil 
 
 Ingersoll v. Knights of Golden 
 
 Rule 
 
 Insurance Company v. Barnes... 
 V. Brodie . . 
 
 V.Colt 
 
 V. Karl 
 
 V. Gray .... 
 " " V. Hogiie . . . 
 
 " " V. House . . . 
 
 " " V. McLanathan 
 
 " " V. McLimans 
 
 V. Pyle 
 
 " v.Uoutlcdge 
 
 " V. Tullidgo . 
 
 276 
 
 78 
 
 204 
 315 
 
 180 
 
 50 
 137 
 
 405 
 
 .555 
 235 
 
 343 540 
 
 417 687 
 •.ma .521 
 
 ,'1()5 5S0 
 322 406 
 4(U 678 
 
 47 77 
 330a 510 
 •.ma 519 
 322 406 
 417 688 
 •.ma 515 
 386 054 
 
 87 100 
 405 «187 
 322 400 
 
nr^- 
 
 zx 
 
 INSURANCE LAW OF CANADA. 
 
 Insurance Company v. Wells — 
 " " V. Wliipple. 
 
 " " V. Wilkinson 
 
 11 11 II II 
 
 V. wour.... 
 
 Inteniat. Fraternal Alliance, in re 
 Internal. Trust Co. v. Norwich 
 
 Union F. Ins. Soc 
 
 lonides v. Pender 
 
 Irving V. Excelsior F. Ins. Co — 
 Irwin V. Springtield.etc, Ins. Co. 
 
 Isaacs V. Royal Ins. Co 
 
 Isitt V. Ry. Pass. Ass. Co 
 
 Par. Vatte 
 4(X 078 
 417 688 
 
 47e 82 
 322 495 
 
 78 i;«i 
 33a 534 
 
 •Amc 524 
 «1 !)2 
 370 020 
 370 010 
 ;152 5«)5 
 276 51 
 :105 587 
 
 ?;i 
 
 Jackson v. Royal Bon. Soc. . . 
 
 " V. Silvernail 
 
 Jacobs V. Equitable Ins. Co. 
 
 Jenkins v. German Ins. Co 
 
 Johns et nl. vN. W. Mut. Relief As. 
 
 Johnson v. Ainer. Ins. Co 
 
 V. Dakota F. & M. Ins. Co 
 11 11 •> >> 
 
 V. Hart 
 
 " V. Insurance Company. . 
 " V. Maine & New Bruns- 
 wick Ins. Co 
 
 Johnson v. Union Ins. Co 
 
 " V. Van Epp 
 
 Johnston v. Catholic Mut. Ben. 
 
 Ass. 
 
 370 024 
 322 497 
 
 imb 522 
 
 3a5 4H1 
 
 289 4.T(i 
 
 297 409 
 
 322 495 
 
 XWa 518 
 
 ;«;$ (>5it 
 
 ;«i 041 
 
 55 HX 
 
 403 073 
 305 481 
 
 404 078 
 
 .53 87 
 
 120 189 
 
 180 227 
 
 ;«9 541 
 MR 551 
 . . . 552 
 
 Johnston v. Dominion Ins. Co. . . . 
 
 11 11 11 11 
 
 " V. Farmers F. Ins. Co. 
 
 of "Sork 
 
 Johnston v. Niagara Dist. Mut. 
 
 Ins. Co 
 
 Johnston v. Scott. Union & Nat. 
 
 Ins. Co 
 
 Jones V. E. T. Mut. F. Ins. Co . . . 
 
 " V. Howard Ins. Co 
 
 " V. Sun Mut. In>;. Co 
 
 " V. U. S. Mut. Ace. Ass'n. . 
 
 Joy V. Ins. Co 
 
 Joyce V. Swann 
 
 Jurgens v. New York Life Ins. Co 
 
 K 
 
 Kanady v. Gore Dist. Mut. Ins. Co 307 485 
 Karelson v. Sun Fire Ottice of 
 
 London 
 
 Karsner v. Union C. L. Ins. Co. 
 Keefe v. Nat. Ace. Soc 
 
 3:<0a 519 
 
 :«« 541 
 
 394 003 
 
 im 074 
 
 ;m5 .589 
 
 im 008 
 
 120 189 
 
 84 101 
 
 Keller v. Trav. Ins. Co 
 
 Kelly V. Hochelaga Mut. F. Ins. Co 
 
 " V. Home Ins. Co 
 
 Kennebec Co. v. Ins. Co 
 
 Kennedy v. Agric. Ins. Co 
 
 Kentzler v. Anier. Mut. Ace. Ass. 
 
 Keystone Mut. Ucn. Ass. v. Jones 
 
 '• " " v.Norris 
 
 Kenyon v. Knights Templars Ass. 
 
 Kersham v. Kelsey. 
 Killv. Hollister.... 
 
 118« 184 
 328 514 
 ;105 585 
 ;W1 {W 
 3K1 049 
 279f/ 400 
 .. , 408 
 
 mi m\ 
 
 375 OIH 
 120 189 
 3;i0rt 510 
 322 498 
 370 024 
 XM)d .525 
 178<i 220 
 03 170 
 a«a 521 
 ■M2 581 
 380 035 
 
 Par. Psfje 
 
 Kimball v. ^tna Ins. Co 287a 437 
 
 King V. Heckia Fire Ins. Co 127 195 
 
 " V. Phd-nix Ass. Co 288c 4.54 
 
 " V. Watertown Ins. Co .... 404 677 
 
 " " " 404 079 
 
 Kircher v. Milw. Mcch. Mut. Ins. 
 
 Co 391 004 
 
 Kirkpatrick v. South Austral. 
 
 Ins. Co 3tiO 578 
 
 Kister v. Lebanon Mut. Ins. Co. , .5lVi 89 
 
 Klein v. Union Fire Ins. Co 109 222 
 
 " " 193f/ 2;i9 
 
 " " " " 240 
 
 " . ... 194 241 
 
 " 282 410 
 
 " " " " 293 4ti3 
 
 ' 328 514 
 
 Knapp V. HouKi'op. Mut. Life Ins. 
 
 Co 3.58c 570 
 
 Knickerbocker Life Ins. Co. v. 
 
 Pendleton 78 125 
 
 do :«0 5(f2 
 
 Knights Templars & Masons Life 
 
 Ind. Co. V. Berry JWi 649 
 
 Knox V. Turner 125 195 
 
 :i58 574 
 
 Knoxville F. Lis. Ci;. et al. v. 
 
 Avery et al 3r>3 582 
 
 Kohnev. Ins. Co. of North Am. . ()2 94 
 
 Koller V. (ierni.-Am. Ins. Co 37<) 022 
 
 Kraber v. Union Ins. Co 3:i0 517 
 
 Kreh v. Moses 320 491 
 
 Kreutz v. Niagara Dist. Mut. F. 
 
 Ins. Co 322 4i)6 
 
 Krunim v. Ins. C!o 322 .501 
 
 Kuncv V. Amazon Ins. Co 322 501 
 
 " " " " 3:K)c 523 
 
 L 
 
 Labelle v. Barbeau 220 277 
 
 V. Hovey 214f 209 
 
 " " 220 277 
 
 Laberge V. Equit. Life Ass. Soc. . 328 510 
 Lafarge v. Lpl. & Ld'n & Globe 
 
 Ins. Co Am 074 
 
 LalHin v. Trav. Ins. Co 417 Cm 
 
 LaHeur V. Citizens Ins. Co 07h 90 
 
 " 103 175 
 
 " 295 400 
 
 Lagrone V. Zimmermann etui... 330 517 
 
 " " '• . . ;«0 .544 
 
 Laird v. Securities Ins. Co »i<( 001 
 
 Laniberton v. Conn. Fire Ins. Co. 330o 519 
 
 Lampkin v. Ont. M. & F. Ins. Co. 308 (iOS 
 
 Lancashire Ins. Co. v. Chapman. 1411 211 
 
 •' " " " 28ij \m 
 
 V. Maxwell. 417 087 
 
 Lanck v . Myers 322 500 
 
 X«1 517 
 
 Landers v. Cooper 394 001 
 
 Lang V. Gale 78 137 
 
 Lantz V. Vermont Life Ins. Co.. 77 117 
 
 .. 78 127 
 .. 3306.522 
 Lapierre & London A Lancashire 
 
 Life Ins. Co 80 163 
 
 Laroque v. Royal Ins. Co 378 627 
 
 Latiniore v. Dw'g Hou.sc Ins. Co. ;152 5(V4 
 Laughlin et al v. Fidelity Mut. 
 
 Life Ass'n :«0a 619 
 
 Lavoie v. Mut. F',-e Ins. Co. of 
 
 Hochelaga 334 530 
 
TABLE 07 CASES. 
 
 XXI 
 
 ;J30a 519 
 334 630 
 
 Par. Pafte 
 
 Lawv. London Indisputable Co. Vi4 Wi 
 " V. New England Mut Auc. 
 
 Ass 404 670 
 
 Lnwt's V . Bennett 145o 212 
 
 Lawrence v. Aec. Ins. Co 3<i5 588 
 
 " ef. al V. Niagara Fire 
 
 Ins. Co ;J8l KJl) 
 
 LnztiniH \'. Common wealtli 305 481 
 
 Leadl>iltor V. .Ktna Ins. Co 371 611 
 
 Let'laire v. Crasper 3()7 4^; 
 
 Lfe V. AIkIv 22i» 281 
 
 " 3(M 477 
 
 " ;i8(5 (inj 
 
 Lees V. Whiteley 2t)2 m\ 
 
 Left'l)vre v. Kntilsay 27i' M 
 
 Lehman v.Gr.East'nCati.&Ind Co 305 ;>84 
 
 Leinkatif v. Colnian 305 481 
 
 Leron V. Wilinartli 13(5 200 
 
 Leslie, Leslie v. French, in re 207& 24i> 
 
 LeSoleil v. Alhv 134 20:1 
 
 Le Soleil v. DeloVs 2(«5 375 
 
 Lett V. (iiiai'dian Fire Ins. Co. . . . 305 483 
 Lewi.< V. ( oimcil Bluffs Ins. Co. . 37i) 032 
 Iiiberty Hall Ass. Co. v. Housa- 
 
 tonieCo 28bM12 
 
 Life Ass'n of America v. Goode. . '•(306 522 
 
 of Scotland v. Foster. . 207 380 
 
 .. 281/414 
 
 ** ** ** 2876 444 
 
 I.inscott V. Orient Ins. Co ' 379 tttl 
 
 Lion F. Ins. Co. v. Starr 379 (W2 
 
 Lipman v. Niagara Fire Ins. Co. . IIS 184 
 
 Lippett V. Stuart 208 251 
 
 Little V. I'hivnix Ins. Co 370 022 
 
 Liverpool & London & (ilobe Ins. 
 
 Co. V. Farnswortli Lumber Co. . Kttla 521 
 Liverpool & London & tJlobe Ins. 
 
 Co. V. Sheffy IIOI 474 
 
 do :«0e 510 
 
 Liverpool & London & Globe In8. 
 
 Co. V. Tillis 375 010 
 
 Liverpool & London & Glol)e Ins. 
 
 Co. V. Van, O. S 2.55« ;i57 
 
 Liverpool & London & Globe Ins. 
 
 Co. v. Wyld 2726 390 
 
 do 322 494 
 
 Lloyd, etc., (H )r 418 001 
 
 Llovd V. West. Hr. Bank 50 84 
 
 Loe'b V. Amer. Central Ins. Co . . . 3(W 004 
 Logan V. Comm. Union Ass. Co.. 372 Oil 
 Lombard Investment Co. v. Dwg.- 
 
 Ilou.selns. Co .370 024 
 
 London Assurance v. Mansell. . . 00 91 
 
 <t2 
 
 .... 279n 105 
 v. Uussell .... :KiO 517 
 " " v. Sainsbury . 'Xi\ .505 
 
 London Guar. & Aec. Co. v. Fearn- 
 
 lev 3(«i 5!«) 
 
 " V. Geddea :J,53 570 
 " v. Hoche- 
 
 laga Bank »«( 608 
 
 London & Lancashire Life Ass. 
 
 to. V. Lapicrre 1076 221 
 
 London Life Ins. Co v. Wright. . 50 85 
 London & N. W R Co. v Glynn. VMd 109 
 London & Provl. Marine v. Sey- 
 mour 00 02 
 
 London West v. London Guaran- 
 tee Co 208 393 
 
 Longcar v. Merity Ins. Co 303 582 
 
 " " " 370 031 
 
 Par. Page 
 Long Island Insurance Co. v. 
 
 Great Western Manuf'g Co . . . 330a 518 
 Loomis Admr. v. Kagle Life & H. 
 
 Ass. Co 124 191 
 
 Lord V. Ball 124 191 
 
 lioring v. Insurance Co 2126 203 
 
 Lount V. Can. Farmers' Ins. Co. . 3;J2 529 
 
 Lowry v. Insurance Co 370 023 
 
 Lowson v. Can. Farmers' Mut. 
 
 Fire Ins. Co 21W 408 
 
 do ;W2 .529 
 
 'iUcena v. Crawford IJJOe 199 
 
 ■;ycoming Fire Ins. Co. v. Wright 417 088 
 
 Lymburner v. Stadacona Ins. Co. 289 455 
 
 Lynde v. Newark Fire Ins. Co. . . 305 481 
 Lynn v. Toronto General Trusts 
 
 Co 224 276 
 
 do 2;iO 281 
 
 Lyon V. Stadacona Ins. Co 322 494 
 
 M 
 
 Macdonald v. Curr . . 78 i;« 
 
 V. Law Union Ins Co. 207 389 
 . 2H16 410 
 Mackay v. Glasgow & London Ins. 
 
 Co 282 415 
 
 do 294 465 
 
 See al.so infra sv'j McKay. 
 
 Mackic v. European Ass. Soc 50 84 
 
 .... 77 112 
 
 "... 77 119 
 
 Madden v. Equit. Life Ass. Soc. 328 512 
 
 Maddox v. Bw'g. -House Ins. Co. 376 024 
 Maguire v. Lpl. & Ldn. & Glol)e 
 
 Ins. Co 302 ft59 
 
 Maille V. Workmen Bakers'Union ;i52 5(W 
 
 Muir V. Railway Passenger Co. . . 27r 51 
 
 Mallory v. Travelers' Co 276 51 
 
 Miiiiche.ster Fire Ass. Co. v. 
 
 Glenn et al 330rt 518 
 
 Manchester Fire Ass. Co. et al v. 
 
 (Juardian Ass. Co 305 482 
 
 Manchester Fire Ins. Co. v. 
 
 Guerin ;M5 .5.50 
 
 do 373 016 
 
 Manchester Fire Insurance Co. v. 
 
 Simmons ;181 639 
 
 Manufacturers Ace. Indent. Co. v. 
 
 Fletcher 370 625 
 
 Manuf. Ace. Ins. Co. v. Pudsev. . 322 5')1 
 
 ' . . 325 .509 
 
 Mantifacturers' Life Ins. Co. v. 
 
 Gordon 20 24 
 
 do 73 101 
 
 do 78 121 
 
 do 70 141 
 
 do 207 ;W0 
 
 Marcus v. St. Louis Mut. Ins. Co. 3;{0« 510 
 Mareck ef til v, Mut. Res. Ftind 
 
 Life Ass ;183 0.50 
 
 Marine Ins. Co. v. St. Louis, I. 
 
 M. &S. Ry 417 087 
 
 Maritime Hank, Liipiidators of 
 
 the, V. The Queen 411 6a5 
 
 Marks v. Hamilton 130 200 
 
 Marsden v. City and County Ass. 
 
 Co 304 58:1 
 
 Marshall v. Women's Mut. Ins. 
 
 & Ace. Co 28b/ 413 
 
 Martin v. Capital Ins. Co 345 550 
 
 " v. Franklin Ins. Co 2\2dm'i 
 
 " v. Home Ins. Co 05 170 
 
xxn 
 
 INSURANCE LAW OF CANADA. 
 
 I'nr. PiiHf 
 
 Martin v. Mut. Fire Ins. Co H22 4i»8 
 
 V. State Ins. Co AM «79 
 
 " V. Travelern' Ins. Co 276 51 
 
 V. Union Mut. L. Ins. Co. 3t8// 577 
 
 Martindale v. Smith VMd 205 
 
 Mnrvin v. Insurance Co '-iSOb 522 
 
 Marx V, Travelers' his. Co 27c 51 
 
 Mason V. Auric. 1ms. Co 37H 627 
 
 Masse V. lIoclieh.iKa Ins. Co 70 90 
 
 Masson v. L'Ass, de Prevoyance 
 
 Mut. (hi Canada 281 409 
 
 Matlieson Bros, in re 41« 01)0 
 
 Mathews V. Northern Ins. Co 345 550 
 
 Mathewson v. Royal Ins. Co 132 2(»2 
 
 1326 2(« 
 
 " V. Western Ins. Co . 1!W 242 
 
 " " '• " 204 240 
 
 Mattliews V.St. Louis &S.F.H. Co ;«{ 571 
 
 V. William Henry SKt 1(» 
 
 Maxcy v. New Hampshire Fire 
 
 Ins. Co. of Mancliester 304 mt2 
 
 May V. Standard Fire Ins. Co 240 340 
 
 " " " " .... 250 ;«i 
 
 " " " " .... 2.58 3.59 
 
 ... 300 4S4 
 Mayhury v. Phci'nix Life Ins. Co. («( m 
 
 Maynard v. Hhodes 120 195 
 
 McBride v. Gore Ins. Co 131 201 
 
 ef al V Rinard et al 330 517 
 
 McCalluni v. Metropolitan Life 
 
 Ass. Co 122a 1!«) 
 
 McCartliy V. Tniveler.s' Ins. Co.. . 276 51 
 McCarvel v. Phenix Ins. Co. of 
 
 Brooklyn ;W9 (i07 
 
 McCaulev V. Fidelity & Casualty 
 
 Co. etal 2ai) 02 
 
 McCausland v. Quebec Fire Ins. 
 
 Co. et al 202 45i( 
 
 McClure V.Mississippi Valley Ins. 
 
 Soc 3:«V 524 
 
 McCallum v. Mut. Life Ins. Co.. . 287/ 444 
 McConnell v. Iowa Mut. Aid. Ass. 374 610 
 McCorinack v. North British & 
 
 Merc. Ins. Co 394 060 
 
 McCormack v. Temperance & 
 
 General Ins. Co HO I.tO 
 
 McCoy V. N. W. Mut. Relief Ass. ;«$ ft'iO 
 McCuaij? V. Quaker City Ins. Co. 345 555 
 McCiilloch V. PiKKnix Ins. Co. of 
 
 Hartford :100 007 
 
 McDerniott v. Centennial Mut. 
 
 Life Ass 2;«t 280 
 
 McDiarniid v. Insurance Co 370 022 
 
 McDonald V. Carr 78 131 
 
 V. V. Ass. Co. of Phila. .S;«)« 521 
 
 '■ V. Messcr 312 487 
 
 McDowell V. .Ftna Ins. Co 381 (WO 
 
 " V Conn. Fire Ins. Co.. 303 .S82 
 V Phcenix Ins. Co. . . . :<81 !W9 
 
 V. Roval Ins. Co 381 ttt9 
 
 McFarland v. Peahody Ins. Co. . . 404 070 
 V. Railw.Otr. &Enipl. 
 
 Ace. Ass 404 077 
 
 McGibbon v. Queen Ins. Co 340 5.57 
 
 340 5,58 
 
 McGillivray v. Montreal Ass. Co. 190 245 
 
 McGivney v. Fire Ins. Co 1.55 215 
 
 McGlincliy v. Fid. & Cas. Ins. Co. 305 591 
 McGonigle v. Susquehanna Mut. 
 
 F. Ins. Co 330a 521 
 
 McGuire v. Hartford F. Ins. Co. . 330a 519 
 
 521 
 
 I'.ir, I'oge 
 McGeachie v. North Am. Life 
 
 Ass. Co 77 102 
 
 do 78 121 
 
 do 7H VM 
 
 do 79 141 
 
 do .. 142 
 
 do 143 
 
 do 147 
 
 Mcintosh & Ontario Bank 187 '£H 
 
 Mclntyre v. East Williams Mut. 
 
 Fire Ins. Co 293 46:^ 
 
 do 345 .555 
 
 Mclntyre v. National Ins. Co 2ola 351 
 
 "... :«1 KfJ 
 
 " .... 403 070 
 
 McMaster v. Ins. Co 370 020 
 
 McNally v. Phijenix Ins. Co 370 Oil 
 
 ' 372 614 
 
 McNeilly v. Continental Life Ins. 
 
 Co 322 496 
 
 McKay v. Glasgow & London Ins. 
 
 Co 270 404 
 
 do 293 462 
 
 See also supra itiih Mackay. 
 
 McKay v. Norwich Ins. Co 247 341 
 
 " 2856 4;«) 
 
 McKiblion v. Fcegan 224 270 
 
 McLachlun v. Accident Ins. Co . . 109 222 
 
 McLaren v. Coinm. Union Ass. Co 3-iO .5.57 
 McLeary et at. \ . Orient Ins. Co. . XXki 519 
 McNallv V. Plucnix Ins. Co. of 
 
 BrooUlyn 2.'Wa 447 
 
 McPherson & Proiidfoot 1H7 234 
 
 McPhillips V. London Mut. F. Ins. 
 
 Co 305 478 
 
 McQueen v. Plujunix Mut. F. Ins. 
 
 Co 313 488 
 
 do 322 494 
 
 do 328 514 
 
 Meachum v. N.Y. State Mut. Ben. 
 
 Ass'n 288f 454 
 
 do i^i 019 
 
 Meadows V. Pac. Mut. li. Ins. Co. 3((5 691 
 Mcarns v. The Ancient Order of 
 
 United Workmen fit al 217 271 
 
 Mech. Sav. Bk. & Trust Co. v. 
 
 Guar. Co. of yi. A. etal 300 596 
 
 Mechanics & Traders' Ins. Co. v. 
 
 McLain 328 512 
 
 McKriie V. United L. & A. Ins. Co. 395 (K!6 
 
 Mellen v. Hamilton Ins. Co :WOa .520 
 
 Meniu'illy v. PImpl. Liab. Ass. Co. 305 588 
 
 Men.sing v. American Ins. Co .5(! 88 
 
 Mercantile Ins. Co. v. Holthani. . 370 021 
 Merch. Bank of Halifax v. Gil- 
 lespie 418 em 
 
 Menthants' Bank v. Monteith, e.v 
 
 parte Standard Life Ass. Co 22;)(! 275 
 
 do 3.56 572 
 
 Mi'rchants' Ins. Co. v. Lhiioii Ins. 
 
 Co 327 511 
 
 Merchants'Marine Ins, Co. V.Ross ;M) (tt5 
 
 " V. Rumsey 1.57 218 
 
 Merrill v. Ins. Co. of N. A 379 6;{2 
 
 " v. Travelers Ins. Co 305 592 
 
 Merritt v. Niagara Dist. Ins. Co. . 289 4.57 
 Merseran v. Ph(enix Mut. Life 
 
 Ins. Co 322 496 
 
 Messelback v. Norman, as treas- 
 urer, etc 3;i0a 519 
 
 Mctrop. Ace. Ass'n v. Froiland . . 375 618 
 ' .. 404 67» 
 
TABLE OF CASES. 
 
 XXIU 
 
 Par, PnRe 
 
 Mc rop. Acc. Ass'n v. Hilton 3«J5 580 
 
 Metrop. Life Ins. Co. v. Denipsey. 417 «W8 
 
 " v.MoCague. 54 H« 
 
 " V. Wood.... :tt(v;5i4 
 
 Mct/KiT V. Mnnch. F. Ass. Co. . . . H7i> <W1 
 
 Mever v. Fid . & Ciis. Co W15 5,SS 
 
 Meyerson v. Hnrtford F. Ins. Co iilO (tlO 
 Michiuan Pipe Co. v. Mioh. F. & 
 
 M. III."*. Co :«^ -Tfi-i 
 
 Mickuv V. Burlington Ins. Co.... 4(>4 (><9 
 Midland Ins. Co. v. Smith and 
 
 Millar v. Pliu-'nix Mut. Co 
 
 Miller v. Confed. Life As.s. Co — 
 *• ** " ** 
 
 " V. Hillsborough Mut. F. 
 
 A.9S cc Ash ii 
 
 Millers' Nat. Ins. Co. v. Jackson 
 
 Co'y Milling & Elev. Co 
 
 Milligan v. Enuitable Ins. Co 
 
 Milw. Mech. Ins. Co. v. Brown. . 
 
 (( it a it 
 
 '• " " V. Stewart 
 
 ef nl 
 
 Mingeaud v. Packer tt nl 
 
 Minneapolis, St. P. & S. S. M. Ry. 
 
 V. Home Ins. Co 
 
 Minogue v. Quebec Fire Ass. Co. 
 Mission Valley Life Ins. Co. v. 
 
 McCruni, a/las Crumni 
 
 do 
 
 Mitchell V. City of London Fire 
 
 Ins. Co 
 
 do 
 
 do. 
 do, 
 do. 
 do 
 
 Mitchell V. Guardian Ass, Co. of 
 
 Ixindon . 
 
 Mix V. Uoytil Ins. Co 
 
 Mobile Ins. Co. v. Hiame 
 
 v.Pruetl 
 
 Moll'att V. Heliance Mut. Life Ass. 
 
 Soc 
 
 do 
 
 do 
 
 Moge V. Societe dc Bienfai.sance. . 
 Molsons Hank v. Guarantee Co. 
 
 of X. A 
 
 Molsons Bank v. Mut. Ins. Co. of 
 
 .Toilette 
 
 do 
 
 do 
 
 Monlor v. American Ins. Co 
 
 Montcleone v. Royal Ins. Co 
 
 Montmagiiy Mut.lns. Co. v. Char- 
 
 bonneau 
 
 do 
 
 Montreal Ass. Co. v. McGillivray. 
 
 »«$ .582 
 28W/412 
 2<t7 ;i8o 
 287/ W.i 
 
 •MO .T4H 
 
 376 621 
 
 m\ m) 
 :««»« 518 
 a7o 010 
 
 381 m) 
 
 228 278 
 22 <6 27!) 
 
 292 4(iO 
 271)c 406 
 
 125 194 
 179a 227 
 
 255/> 355 
 276 40.i 
 315 488 
 373 615 
 
 375 618 
 
 376 621 
 
 255h 3.55 
 im)e 525 
 3.5:1 a!5 
 3.50 5(i2 
 
 77 115 
 
 80a 158 
 
 324 .509 
 
 :«(5 592 
 
 ;«18 605 
 
 :«6 .>U 
 381 mi 
 
 41 
 42 
 43 
 50 
 
 72 
 74 
 75 
 
 84 
 
 ;«2 5:10 
 
 ;m 5;»5 
 
 ;w 5;«t I 
 
 288 446 
 
 376 624 
 
 " " '• " 117 182 
 
 142 210 
 Montreal Fire Ins. Co. v. The 
 Stau'^tead, Shetl'ord & Chandily 
 
 Ry. Co. & Wood rf al 76 102 
 
 Mooney v. (Jlen's Falls Ins. Co. . . 345 557 
 
 " V. Imperial Ins. Co 274e 402 
 
 Moore v. Citizens' Ins. Co 208 393 
 
 Par. PnK« 
 
 Moore v. Citizens' Ins. Co 271ft 397 
 
 " " " 2(16 468 
 
 " V. Com. Mut. Fire iii.s! Co. 322 497 
 
 ** ** '* ** :V^8 658 
 
 " V. Home Ins. Co i:«> 207 
 
 " V. Phienix Fire Ins. Co . . . 280 43ft 
 More V. New York Bowery Fire 
 
 Ins Co 476 78 
 
 Morgan v. Hunt ef al 228c 280 
 
 Morotock I ns. Co. V. Check 370 022 
 
 Morton v. Hart 3:«) 517 
 
 Moyer v. Sun Ins. OIHce of Ldn. . 370 610 
 
 .. 372 015 
 
 " .. :»81 6:» 
 
 Murdock v. Franklin Ins. Co 394 (KI2 
 
 404 677 
 
 M\irphy v. Red )K{ 2:10 
 
 Murray v. Association ;179 6:12 
 
 " el al. V. Macdonald .... 214(( 20tt 
 
 " V. N. Y. Co -.m 6.50 
 
 Mutual Acc. Ins. Ass. v. Barry . . 27a 48 
 
 " .. 276 51 
 Mut. Ass. Co. of Montmagny v. 
 
 Charbonneau :145 .553 
 
 Mut. A.ss. Co. of Montreal v. 
 
 Villenenve IW.I .5.59 
 
 Mutual Benefit Co. v. French .... 79 147 
 
 V. Robertson . 288 446 
 " " in re Appeal 
 
 of Schoneinan ;i.58rf ,577 
 
 Mut. Ben. Life Ins. Co. v. Davis' 
 
 Ex'r ;«t5 005 
 
 Mut. Fire Ins. Co. v. Swigert .... 417 688 
 
 V. Villenouve. 144 211 
 of Joliette v. 
 
 Bourgoin 334 539 
 
 Mut. P. In.s. Co. of Joliette v. 
 
 Dupuls ;i:t4 537 
 
 Mut. F. Ins. Co.of Richmond, etc., 
 
 V. Fee :«« 5:W 
 
 do :i45 557 
 
 Mut. F. Ins. Co. of Stanstead v. 
 
 Galliput 380 055 
 
 Mut. F. Ins. Co. of Wellington v. 
 
 Frey 40 70 
 
 do 247 :M0 
 
 do -.m .5:« 
 
 do 40:i 074 
 
 Mut. Ins. Co. V. Allen ;W6 6.55 
 
 Mut. Life Ins. Co. v. Simpson. . . . :J8;i 649 
 of N. Y. V. 
 
 Tlionipson 288(; 454 
 
 Mut. Relief Socy. of N. S. v. 
 
 Webster 281r 411 
 
 Mut. Res. Fund L. Ass. v. Payne. . :Kt 6.50 
 " V. Tolbert 401 080 
 
 N 
 
 Nadenfleld v. M.assachusetts Mut. 
 Acc. A.ss . . 27r .52 
 
 Nally V. Xally 2.^5 284 
 
 Names v. Dwg.-IIouse In.s. Co. of 
 Boston ;«K1 ,582 
 
 Nassauer v. Su.s<|uehanna Mut. F. 
 In.s. Co :{50 .562 
 
 National Benefit Assoc, v. Grau- 
 man 276 51 
 
 Nationivl Benefit Assoc, v. Jack- 
 son 27c 51 
 
 Nat. Filtering Oil Co. v. Citizens' 
 Ins. Co 120 189 
 
 National Ins. Co. v. McLaren 353 668 
 
 ?:;f 
 
 
nrnmt 
 
 XXIV 
 
 INSURANCE LAW OP CANADA. 
 
 I'ur. ram> 
 
 Nntioiuil Ins. Co v. Kousscnii . . . 2^19 457 
 Nationivl Assuraiicu Co. of Ireland 
 
 V. Hnnia liW 243 
 
 do 244 
 
 do ;<":» 615 
 
 Nat. Life-Mat. Ins. Co. v.Wliitncie XM 517 
 
 do :«75 (il!t 
 
 do a7(l (i22 
 
 Nut. Mas. Aco. Ass'n v. Huit .... :iS(l Ciiii 
 
 V. Shryock. :«I5 .5itl 
 
 Naughter v, Ottawa Agr. Ins. Co. ;{22 404 
 
 " ' '• ... 4!»7 
 
 Neiil V. Travelers" In.s. Co 27<' 51 
 
 ;«i5 rxs;j 
 
 " V. Union Mutual Life Ins. Co 77 \\H 
 ■' 82 15il 
 
 " :t5i rm 
 
 Neilson v. Trusts Corporation of 
 
 Ontario 228?) 27!» 
 
 Ne\uleck >'f nl. v. (.irand Lod^ce 
 
 A. O. I!. W :t7(i (i24 
 
 Nevins v. Insiiranee Co 212/> 2(Kt 
 
 4t)5 tt,'*l\ 
 
 Newcastle Fire Ins. Co. v. Mac- 
 
 niorran 207 IKK) 
 
 New Kngl. Mnt. L. Ins. Co. v. 
 
 Woodworlh :t8(l 1^55 
 
 New Km Life Ass. v. Weirfle 121 tiiCt 
 
 Nnw V. (Jernian Ins. Co. of I''ree- 
 
 port :i05 482 
 
 New Hampshire Ins. Co. v. Ken- 
 nedy *7 «/ :f;«) 517 
 
 Newman V. Newman 2(lil(/ 251 
 
 New York Howerv l''iie Ins. I'o v. 
 
 N. Y. Kire In.s. Co 281/* 42!» 
 
 New York Life Ins Co. v. Parent. 287^ li:t 
 
 ' :m 478 
 
 " V. SI one .. 417 (!88 
 
 V. Talliot.. 287/ 44;i 
 
 Niagara DIsl . Kniil (irowers' 
 
 Stoek Co. V.Walker •£)<■ 2S 
 
 Niagar.i I'Mre Ins. Co. v. .Iiilinson. HOI 47:i 
 Niehiills V. Kayette Mtil. Ins. Co. 281(M12 
 
 Nicholson V I'liuMii.x Ins. Co 2(i!( H!'5 
 
 Nixon V. yneen ins. Co M7() (Hli> 
 
 Noel V. I'ymatnniuK M>it. l'"ire 
 
 Ins. Co :t."i2 5(14 
 
 Norris V. Caleilonlan Ins. Co 2(17 218 
 
 " V. l'"arniers' .Mul. l'"lre Ins, 
 
 Co :t75 (118 
 
 ■ io :i7(l (121 
 
 Nortli Am. Ins. Co. v. Hurronghs 27(( 18 
 
 ' 27/1 51 
 
 North Anu'rlcan Life Ass. Co. v. 
 
 Craineii 170 22:i 
 
 North .\merican Life A.ss. ('o. v. 
 
 I'inole u 2:t2 282 
 
 Nor(!: hrit & Merc. Ins. Co. v. 
 
 (ilcnn ,t III ;i.'t0(i518 
 
 Nor(h Hrit. &, .Merc. Ins. Co. v. 
 
 L|)l. & Ldn. & (;iolie Ins. Co. . . 2117 :IH(I 
 
 do :i5;t 508 
 
 do 5(i!l 
 
 North Hrit. & Mere. Ins. Co. v. 
 
 McLennan 207 :i85 
 
 do ;i8i» 
 
 do 2«a 420 
 
 Norih Hrit. & Merc. Ins. Co. v. 
 
 MoHat i:rw( 2011 
 
 do 207 :i8(l 
 
 Norili Hrit. & Merc. Ins. Co. v. 
 Tourvillo 2S1» 4nO 
 
 Par, Pago 
 North Brit. & Merc. Ins. Co. v. 
 
 Tonrville 378 027 
 
 Northern Ass. Co. v. Prevost... 270/) ;«tO 
 " V. C:'<uuel8 it 
 
 al :«« 
 
 do 370 
 
 do :t8i 
 
 North Shore Ky . & McWilley .... 3.):{ 
 
 .')82 
 021 
 
 m) 
 rm 
 mi 
 rm 
 
 585 
 
 Northwest Commercial Trav. Ass. 
 
 V. London Guar. & Ace. Co.... ;Ui5 
 Northwest Mut. Life Ins. Co. v. 
 
 Amerman XKVr 521 
 
 Norliiwest Mut. Life Ins. Co. v. 
 
 Hoth ;W5 m.', 
 
 Norihwest Mut. Life In.s. I'o. v. 
 
 Stevens it nl ;».')."■' .577 
 
 Northwest Nat. Ins. Co. v. Mi.e. XMi 510 
 
 Not man v. .Vnchor Co 
 
 Nova Scotia Maritime Ins. Co. v, 
 
 Stevenson 
 
 Nudell \ . Williams 
 
 Nusshaum v. Northern Ins. Co... 
 Note V. Ins. Co 
 
 207 :wo 
 
 207 
 
 78 
 
 :t(>5 
 
 405 
 
 120 
 481 
 
 (180 
 
 o 
 
 O'Hrien v. New Zealand Ins. Co . IWO.V 524 
 
 V. Ohio Ins. Co :I70 022 
 
 O'Connor V. Imperial Ins. Co. ... 100 173 
 
 " 1;MV7 2(H) 
 
 " ;«)5 177 
 
 Oddfellows' Fraternal Accident 
 
 .\> 
 
 O'l learn v. ('aledonian Ins. Co. 
 
 20rt 40 
 308 005 
 
 ... 375 
 
 " . . ;i85 
 ... ;18(1 
 
 O'll.'ron.(r 23:« 
 
 417 
 
 017 
 
 05;i 
 
 28;i 
 
 088 
 111 
 0.55 
 
 Oland V. Agric. Ins. Co 
 
 Olmstead v. I'"armeis' Mut 77 
 
 O'.Malli'V V. Scott. Cotiim. Ins. Co. 380 
 Omnium Secnrities Co. v. Camida 
 
 h.s, Co 103 238 
 
 do 104 241 
 
 do 108 244 
 
 O'Neill V. Ma.ss. Hen. .iss 417 087 
 
 Ontario Holt v^ Korge I'o., in re. 418 001 
 O'Helllv V. (imirdian Mnt. L. Ins. 
 
 Co. ..' 370 010 
 
 O'Keillv V. Insurance Co 370 023 
 
 Oriental Hotels Co., 1)1 /v 418 001 
 
 O'Honrke V, ,lohn Hancock Mnt. 
 
 L. Ins. Co 3:MI(f 525 
 
 do 375 010 
 
 Osewalt V. Hartford V. Ins. Co. . . 372 014 
 Oshkosh Mat eh works v. Manch. 
 
 V. .\ss. Co ;i;«l(( 518 
 
 do laic 525 
 
 Ottawa .Agricultural Ins. Co. v. 
 
 Sheridan 134r 204 
 
 ilo 282 41(1 
 
 Ottawa iV liideau i''orwardlng l!o. 
 
 V. 1-1)1. \- Ldti iS: (ilohe Ins. Co. 315 .wHl 
 Oulmel v.(ilasgow \' London Ins. 
 
 Co 375 018 
 
 Over li nl. v. Lake Krie &. W. 
 
 H. H. Co rt III 35;» 571 
 
 Owen V. Ins. Co 370 023 
 
 1» 
 
 Paeaud v. Monarch Iim. Cu 
 
 2tHt 40 
 
TABLE OF CASES. 
 
 XXV 
 
 -.18 
 
 r>2r) 
 
 |ll8 
 
 [.7 1 
 
 Par, I'liKi" 
 
 Paciiiul V. Queen Ins. Co 27'2<' ;«Ht 
 
 ,lo :<7.s m\ 
 
 do :»78 (127 
 
 Puo. Mut. Co. V. Butlers 322 41)3 
 
 Piige V. Kry liVV. ai8 
 
 '• ,/ «/. V. Sun Ins. Ollice ;HI2 171 
 
 I'alin V. Mt'dinii Ins. .'o 13 73 
 
 Palmer v. (ireivt Western Ins. Co. 'Ma »i2l 
 Pitltroviteli v. I'lniMiix Ins. Co. of 
 
 Hiirtford 'M2 (il4 
 
 Piipinean v. Mut. Hes. Kund Life 
 
 Ass"n & Hi'ssettc 
 
 Piupii'i V. Cili/ens' Ins. (;o 
 
 Pare V. Scott. Imp. Ins. Co 
 
 Park V. IMiicnix Ins. l\> 
 
 Parker v. .Vma/on Ins. Co 
 
 Purmelee v. Ilotl'iiiiin Ins. Co 
 
 Parent v. Sliearer li iil 
 
 Parry v. (ireat Sliips Co 
 
 Parsons v. Cit i/ens' Ins, Co 
 
 a2« f.i;t 
 
 :til iMi 
 
 :t22 1113 
 
 :n8 (!27 
 
 :»7(i tl2() 
 
 :t7)! fi20 
 
 :{|)3 tMM 
 
 VM 11)7 
 
 c/ ((/. V. KnoxvilleF Ins 
 
 :t2 tC) 
 
 217 :«-lo 
 2m(( :t3<) 
 
 Co :<:«i(j 3iii 
 
 Par.sons V. Queen Ins. Co :t2 
 
 do 2111 
 
 do 233 
 
 do :f22 
 
 T'lirsons V. Standard Ins. l"o . . . . 2lHi 
 
 l'atlersoi\ v. Koyal Ins. C'o 102 
 
 Pattison V. Mut". Ins. Co. of Stan- 
 
 sli'ati 
 
 J'ayne v. Mut. Helii-f Soc 
 
 Pearson v. Comm. I nion Ass. ('o. 
 
 2(17 
 
 27;» 
 :t33 
 
 2.W 
 
 :t2l 
 2716 
 
 ((3 
 Kill 
 
 ;t34 
 
 I! 11 
 ■ItiS 
 
 171 
 
 (133 
 (121 
 
 :wti 
 
 IIH) 
 372 
 
 :t.-.i) 
 
 TitKI 
 102 
 
 33;i 
 
 I'eekv. .\Krieultnnil Ins Co... 
 
 " V. rim'ui.x Mut. Ins. Co. 
 I'eddie v. C^ueliee l''ire Ass. C'o. . 
 Pelican Ins Co. of New Orleans, 
 
 in re .'UMlii 321 
 
 Pelzer Munufae. Co. v. St. I'lvul 
 
 i". & M. Ins. Co 
 
 do 
 
 Pendleton v. Same 
 
 I'euli'V V. Meacou Ins. Co 
 
 I'cnn. I'"lre Ins Co, v. I'\ivles .... 
 I'enn. Mut, IJfe Ins. Co. v. Wilcr 
 
 I'ciniypacker v Cap. Ins. Co 
 
 I'cople V. .\mer. Steam Holler Ins, 
 
 " v.llililiert 
 
 " V, (iloln' Mut, Idfelns, Co, 
 
 \. liislici's, etc 
 
 V, Knickerbocker lilfu Ins, 
 
 Co 
 
 People V. State Con Tr of Ins 
 
 I'eojilc's Hank of lircenvllle v, 
 
 .I'ltna Ins. Co 
 
 People's Mot . Hi'ii. Soc, v, McKay 
 
 I'eoria Ins. Co, v. Mall 
 
 V. Wlilteldll . .. 
 
 Peoria Sugar Kcllnlng Co. v. Can. 
 
 Klre it lVIarim< liis. Co 
 
 2H16 
 
 :«)| 
 7!t 
 30 
 
 :t22 
 
 l:!0 
 tHL' 
 118 
 81 
 101 
 
 ;t:ui(( 318 
 2886 131 
 
 117 
 101 
 117 
 :i22 
 
 117 
 
 IW7 
 077 
 087 
 107 
 
 tl87 
 
 do 
 
 du. 
 do 
 do. 
 
 Peppll V. Nort li Hrlt . & Mere. Ins, 
 
 Co 
 
 do 
 
 23r 10 
 
 117 ti87 
 
 .'170 021 
 
 :i03 302 
 
 101 071) 
 
 401 070 
 
 210 :iii) 
 
 238 ;»31) 
 
 ■AM 372 
 
 loa 072 
 
 . . , tl73 
 
 :il22 403 
 870 (MH) 
 
 Pur. Fhkk 
 I'erine v.Crand Lodge A.O.U.W. 288c 4.M 
 
 Pcrr V. Insurimee Co 2126 2(KI 
 
 Perry V. Dwg, House Ins. Co,,., ;»:«Vi 321 
 " V. Newcastle DIsl. Mut. 
 
 Fire Ins. Co 2(i 45 
 
 do 30 8't 
 
 do 31 85 
 
 Perry v. Niagara Dist. Mut. I>'ire 
 
 Ins. C ;«70 (108 
 
 IVrrv V. Oriental Hotels Co 418 001 
 
 Peters v. ('it y of St . .lolin 410 083 
 
 V. Quebec llarhor Com'rs. ;t80 (Kto 
 I'ettigrew v. (irund River Kami- 
 
 ers' Ass i;«t 200 
 
 Pcucben v. City Mut Fire Ins. 
 Co ■, ;U)0 483 
 
 do :k"> 03:1 
 
 J'hillips V, Carpenter 2:«1 280 
 
 " V. (!rau(l Itiver Farmers' 
 
 Mut, Fire Ins. Co 282 il7 
 
 Phillips V. N, Y, Life Ins. Co. ., 2.88c 134 
 
 V, Ins., ;•<• 2.3c :t8 
 
 Pbo'ulx Ins, Co. V. Allison if at.. Xi\ .370 
 
 V. Ilenton 207 :t83 
 
 V. Center :t70 (i'22 
 
 v.CotVnlannr^»/ .•««)(( .321 
 
 V. Copeland :«»4 (Kll 
 
 V. Dolan :itt4 001 
 
 " v.Krie Transport 
 
 Co W'iS .370 
 
 Plio-nix Ins, Co, v. Maxon H30 302 
 
 V, Pbillips :i;U>(i 321 
 
 V. Uoildin 28I(/4I2 
 
 ii^b 431 
 
 " " V, Kvlaiul 13 17 
 
 V, Spiers 2!»;t 402 
 
 :t22 llKl 
 
 :i;!o,/ .320 
 
 v.Weleb 417 (W8 
 
 " V, Muiiger H:«l(i 310 
 
 ;i!ll tiOI 
 
 Pleard V. Hrit. Ani..\.is t^o .,, . 201 103 
 
 Pierce v. Charter Oak L Ins. Co. ;101 0.30 
 
 ' :m3 005 
 
 " V. I'iCpiitable Life ,\sHur. 
 
 Soc 23(r 53 
 
 Pierce V. Home Ins, Co of N. Y. K\ 101 
 
 Pingrev v. Nat Life Ins, Co 2;i."fi 2.'xi 
 
 Pitncv'v. (ilcu's Falls Ins Co.... :122 107 
 Planters' Mnl. Ii\s Co, of Wasli 
 
 ington V. liowhind .37 81) 
 
 Platl V. Keary 01 170 
 
 " V. Hiclnnoinl, York Itlvi-r & 
 
 ("liesapeake l!,l{. Co ll.'iH 370 
 
 Pool V. Mil.Mcch, Ins. Co 201 138 
 
 :tl3 3,32 
 
 ;il3 3.T) 
 
 Pordage v Cole 70 1 10 
 
 Potter V, Ontario I'i Livingstone 
 
 Mut Ins Co 20:i nil 
 
 Potter li III. V. Plnenlx Ins, Co . ;t:tO.( 318 
 
 Potts v.'rcmp.iSiti. L, Co ofN.A. ;t01 177 
 
 ;I21 102 
 
 Pound, etc., <>i »r 118 001 
 
 Powers Drv Cioods Co. v. Imp. 1''. 
 
 Ins, Co ! :i70 024 
 
 Priider V. Nat, Mas. Ace. A.ss... 1103 588 
 Preferred Masonic Mutual Acci- 
 dent .Vss, of .\unrlca, re Wn 10 
 
 do. V. .lones :itl3 502 
 
 Pref. Mut. Ace. Ahs'm of N. Y, rl 
 
 (il. v.Cobb ;I0,") .■>88 
 
HB 
 
 XXVI 
 
 INSURANCE LAW OF CANADA. 
 
 Par, Page 
 
 Prentice v. Insurance Co 376 (123 
 
 Prentice v. Steele (see lilrrata).. . . JHOi 477 
 
 Preston v. Neele 358 571 
 
 Prevo.st V. Scott. Union & Nat. 
 
 Ins. Co 371 Oil 
 
 do 403 670 
 
 Prince of Wales Ass. Co. v. Harrl- 
 
 iiicr oO 84 
 
 Prince of Wales Ass. Co, v. Palmer 60 92 
 Pritcliard v. Merchants Lite Ass. 
 
 Co 78 129 
 
 do 130 
 
 do 132 
 
 do 137 
 
 Probst V. Am. Central Ins. Co . . . 375 018 
 
 •' ... 370 022 
 
 " " "... ;«1 (WO 
 
 Proctor V. (Iraliiim 219 272 
 
 Proppe V. Metrop. Life Ins. Co. . . 370 024 
 Protection Life Ins. Co. of (Mii- 
 
 caj^o V. I'^oote 322 499 
 
 Protest. Bd. of School Coni'rs v. 
 
 Guar. Co 308 005 
 
 Provincial Ass. Co. v. Roy 32:1 507 
 
 V. Leduc .... 360 6(il 
 Prov. Wash. Ins. Co. v. I'he Syd- 
 ney ;J53 570 
 
 Provident Ins. Co. v. Martin 27«' 52 
 
 Prudential Ass. Co. v. /Etna Ins. 
 
 Co 2S8 440 
 
 Prudential Ass. Co. v. Kdmonds. 3."iHrf 577 
 
 PuKhv. London U. & S. C. Hy. Co. 305 580 
 
 P\ipke V. Iiis\irance Co 212/j 2(i3 
 
 Putnam v. New York Life Ins. Co. 230 2S0 
 Pythian Life Ass'n v. Preston . . . 3;«)« 518 
 
 Queliec Fire Ins. ('o. v. Molson . . 353 5(57 
 
 Quebec St. liy. Co. v. Corpor'n of 
 
 Q\iel)ec 380 035 
 
 Queen Ins. Co. v. Kline et at 330fi .")19 
 
 V.May 3;«)rt 1)21 
 
 .... j.^1, 
 
 •,m 
 
 (KM) 
 5511 
 357 
 395 
 494 
 505 
 514 
 022 
 
 I'arsons Ill) 
 
 " " '• 249o 
 
 Queensland Merc. Agency Co, ui »r 418 
 
 Qiiennevllle v. .Mut. Ins.' Co ',W) 
 
 Cjuinlan v. Union F. Ins. Co 250 
 
 " 270 
 
 322 
 
 32,3 
 
 " " 328 
 
 370 
 
 QuonK Tue SinK v. Anglo-Nevada 
 Ass. c;o 200/381 
 
 n 
 
 Racine v. Ktinit. Ins. Co. of Ldn. . ;r72 014 
 
 .. 378 027 
 
 " " . . 380 035 
 
 Rahr et ill v. Manch. Fire Ass. Co. 322 5(M) 
 
 Railroad Co. v. Martin 395 000 
 
 v. Fire Ass'n 417 087 
 
 Ramsay v. Maniif. Ins. Co 27r 54 
 
 Itiinisay Woolen Clot li Manuf . Co. 
 
 V. Mut. Fire Ins. Co 289 457 
 
 RawlhiKs v Cili/en's Ins. & Inv, 
 
 Co 328 512 
 
 Ravner v. Preston 35:1 570 
 
 Rial Kstate Mut. FIro Ins. Co. v. 
 
 Rocssle 105 175 
 
 ReddlcU v. Saugeen Mut. Five 
 
 Ins. Co 247 331 
 
 Tar, Page 
 Roddick v. Saugeen Mut. Fire 
 
 Ins. Co 249 349 
 
 do 528 ;i59 
 
 rto 282 416 
 
 do 2856 434 
 
 do 378 627 
 
 Redford v. Mut. Fire Ins. Co 288rt 448 
 
 Rfdiker v. Queen Ins. Co 3;l0rt 519 
 
 Redmond v. Can. Mut. Aid Ass. . ;134 638 
 Redpath et al v. Sun Mut. Ins. 
 
 Co 407 683 
 
 Reed v. Royal E.xchange A.ss. Co. 124 191 
 " V.Washington Ins. Co.... ;W1 (WS 
 
 Rees v . Hughes 220o 274 
 
 228 278 
 
 Regina v. Stapleton 26 45 
 
 33:1533 
 
 Rehni v.CJerman Ins. & Sav. Inst. 
 
 of Quincy .417 688 
 
 Reichard v. Insurance Co 405 (580 
 
 Reid V . McCrum 212rt 200 
 
 Reip v. Union Mut. Ins. (Jo 124 191 
 
 Renback v. Piedmont, etc.. Life 
 
 Ins. Co 124 191 
 
 Reynard v . Arnold 145 212 
 
 145ff212 
 
 Reynolds v. Ecpiitahle Ace. Ass. 27c 52 
 Rhode Island Underv.riter.s' Ass'n 
 
 V. Monarch ;i:iOre 521 
 
 Rice v. Fidelity & Cas. Co 328 514 
 
 Richards V. Travelers' Ins. Co. . 27« 49 
 V. Washington Fire & 
 
 ."Marine Ins. Co ;W0« 521 
 
 Rich. & Ont. Nav. Co. v. Comni. 
 
 Union Ass. Co 381 041 
 
 Ulch.&Ont.Nav.Co.v. Lafrenlere :ii»7 007 
 " " " V. Phu-nix 
 
 Ins. Co. of Hrooklyii 408 083 
 
 Rickerson v. (ierman-Amerlcan 
 
 Ins. Co 292 400 
 
 Riddlesharger v. Hartford Ins. Co 103 073 
 
 Ripley V. vKina Ins. Co 4(U 079 
 
 " V. Pass. Ass. Co 27(» 49 
 
 RIttler V.Smith 125 194 
 
 Robbins v. SpriiiKlleld F. k. M. 
 
 Ins. Co ;«0(T 521 
 
 Robert v. Macdonahl 197 243 
 
 " V. New England Mut. Life 
 
 Ins. Co 77 117 
 
 Roberts et nl. v. North Western 
 
 Nat. Ins. Co ;122 496 
 
 do 375 619 
 
 Roberts, Willis & Taylor Co. f^ai. 
 
 V. Lancashire Ins. Co :i!t()(if 519 
 
 do ;t:«)c 525 
 
 Roberts, Willis & Taylor Co. et id. 
 
 V. Sun. Mut. Ills. Co :t;t()ri 519 
 
 do -XW,' 625 
 
 Robertson v. French 207 :18() 
 
 Robins v.VlcloriaMn(.F. Ins. Co 40 70 
 
 ;«« 5:12 
 
 ;«I8 003 
 
 ... 004 
 
 :«71 013 
 
 Robinson v. Cerman Ins. Co , .. \m 060 
 
 V. Metrop. Life Ins. Co. Xmil 524 
 
 v. I!. S. Mut. Ace. Ass'n ;t05 689 
 
 RocUford Ills. Co. v. Kornim 'XWn 519 
 
 V. Williams ... :t:tOc 525 
 Rochner v. Knickerbocker Life 
 
 Ins. Co 77 117 
 
 do 79 148 
 
TABLE OF CASES. 
 
 XXVll 
 
 
 Tar. I'ago 
 Rolland v. North British & Merc. 
 
 Ins. Co 272«aoa 
 
 Roiimine v. Union Ins. Co 417 tiHK 
 
 Ronald v. Ins. Co im) (W3 
 
 RojiL'i- V. London Ii..s. Co ;W1 (KW 
 
 Rosen« aid v. Phrunix Ins. Co. . . . :iSO (a"i 
 
 Rousseau v. Royal Ins. Co 14Ir 210 
 
 403 071 
 
 RoNve V. nrooklyii Lifu Ins. Co. . . XM .562 
 
 " V. hondon, etc.. Ins. Co 2(17 'X<t\ 
 
 Royal Ins. C:o. v. Hcers ai.") 4H8 
 
 " V. By ITS ;{7.S (!Ll) 
 
 " V. Clark ;W1 52() 
 
 '• " V. Dull'us :{.S7 (r>() 
 
 " ■' V. Mclnlyre 'M'> 55.") 
 
 " " " " :17() 621 
 
 " " V. Home Ins. Co. of 
 
 New Orleans 343 549 
 
 Ruff^les V. Am. Cent. Ins. Co. of 
 
 St. Louis 47c 79 
 
 do 322 .501 
 
 Runisey & Mereh. M. Ins. Co ... . 134fr 2(l.{ 
 
 Russell V. Can. Life Ass. Co. . . 2«7/' 441 
 
 " V. Cedar Rajilds Ins. Co. 394 0(iO 
 
 " V. Detroit I\Iut. K. Ins. Co *«lf/ .524 
 
 " V. Rohert.sou 187 2.'t4 
 
 Ruthven ef al.\. Amer. F. Ins. Co 33(V» 51H 
 " •,mri ,->19 
 
 S 
 
 SafTord v. Wickoll 42 74 
 
 Sabers v. Hawkeye Ins. Co 3(i9 (i07 
 
 " 37.5 (119 
 
 Salvin V. .lames 7H 131 
 
 7H 131 
 
 Sanio V. Gore Dist. Mut. Ins. Co. WAa 239 
 
 Hanboken v. Oiiii. Mut. Ins. Co. . . 31H 490 
 
 Sands V. DwKlIi'UHe Ins. Co 3H1 (!3!l 
 
 " V. Standard Ins. Co 249(( 350 
 
 " 259 359 
 
 " 31MI 184 
 
 Saugeen Mutual I'". Ins. Co., in re 
 
 Kneelitel's ease 3iJ3 tiiA'l 
 
 Sawyer v. Kiinitable Ace. Iius. Co 2ff4c 430 
 
 ... 432 
 
 SehauerfY iil. v. Queen Ins. Co. . . 3;tO 517 
 
 Schell V. (iermait Ins. Co 330rZ 524 
 
 Selimilt V. Nat. Life .\ss'n 375 019 
 
 Sehneider V. Provident Co 27c 51 
 
 Scliwarzliaeli v. Ohio Valley I'rot. 
 
 Union 28S 410 
 
 Schwarzbach v. Ohio Valley Prot. 
 
 Union 2.SHC 4.54 
 
 Sell weivcer v. Magee 125 193 
 
 Scott V. Avery 3.80 0;t5 
 
 " o:«! 
 
 " " 405 080 
 
 " V. Dickson 105 220 
 
 " V, Plin'ni.\ Ass. Co 207 389 
 
 " " " 308 m.\ 
 
 " " " 372 014 
 
 " " " 380 035 
 
 " V Quebec Fire Ins. Co 207 388 
 
 " i:l lit. V. Scott 210 270 
 
 " V. Sun Fire Olllee 2tMI<' 381 
 
 " 351 50;» 
 
 Scottish Kipiitable Inx. Co. v. 
 
 Blnot 00 91 
 
 Scottish I'rov. Ins. Co. v. Cohen. . ,'(80 (155 
 
 Seaman v O'ilara 330(1 519 
 
 Sears v. AKi'ii'idtural ins. Co 249(( 350 
 
 " 257 358 
 
 
 Par. Pago 
 
 Sears v. Agricultural Ins Co 
 
 3;+i »m 
 
 
 351 5(i3 
 
 Seghetti v. Queen Ins. Co 
 
 378 (i28 
 
 Seigriat, Admr. v. Sehmoltz 
 
 180 2;n 
 
 Sellers el nl. v. Comm. F. Ins. Co. 
 
 322 499 
 
 Seniin v. Supreme Lodge K.of 11. 
 
 287/' 444 
 
 Semmelhaack v. Can. F. & M. Ins. 
 
 
 Co 
 
 316 48& 
 
 Sergent v: Liverpool & London & 
 
 
 Globe Ins. Co 
 
 3(i9 (107 
 
 Seward v. Rochester 
 
 :i81 (KW 
 
 Sevk V. Millers Nat. Ins. Co 
 
 417 688 
 
 Shaekett ft nl. v. People's Mut. 
 
 
 Ben.Soe 
 
 401 679 
 
 Sbutler v. Travelers Ins. Co 
 
 27c 51 
 
 Shannon v. Goi-e Dist. Mut. Ins. 
 
 
 Co 
 
 322 500 
 
 Shannon v. Hastings Mut. In.s. 
 
 
 Co 
 
 322 494 
 
 Shannon v. .Nugent 
 
 125 193 
 
 Sbapire V. St. ^aul F. & M. Ins. 
 
 
 Co 
 
 'XV^)e 525 
 
 do 
 
 ;«t9 007 
 
 Sharp V. Milw. Mech. Ins. Co 
 
 330e 525 
 
 Shearman v. British Emp. Mut 
 
 
 Life Ass. Co 
 
 207 218 
 
 Shearman v. Niagara F. Ins. Co . 
 
 305 481 
 
 Sheets V. Selden's Lessee 
 
 78 137 
 
 Sherbonneau v. Beaver Mut. Ins. 
 
 
 Ass 
 
 130 200 
 
 Sheridan v. Ottawa Agr. Ins. Co. 
 
 317 489 
 
 Shertzer v. Mut. Fire Ins. Co 
 
 .50 85 
 
 Sideways (7 at. v. Todd cf ill. . .. 
 
 130c 108 
 
 Silenberger v. Prot. Mut. F. Ins. 
 
 
 Co 
 
 '.m\it 524 
 
 Silverberg v. Ins. Co. 
 
 379 o:t2 
 
 .Simons v. Simons 
 
 228(( 270 
 
 Simonlon, etc., v Liverpool, etc., 
 
 
 
 45 75 
 
 Simpson v. Accidental Death Ins 
 
 
 Co 
 
 78 127 
 
 do 
 
 . . 129 
 
 do 
 
 . . i:«t 
 
 do 
 
 . . . 132 
 
 do 
 
 . . . 137 
 
 Simpson V. Margit.son 
 
 78 120 
 . . 137 
 
 V. Saterlee 
 
 305 181 
 
 Sinclair v. Can. Mut. Ins, Co 
 
 281,/ 412 
 
 .t ,. i, 
 
 322 491 
 
 " V. Maritime Pass. Ass 
 
 
 Co 
 
 27/< 51 
 
 <lo 
 
 ;t05 .585 
 
 Singleton v. St. Louis M. Life Ins 
 
 
 Co 
 
 124 192 
 
 Sklels V Blaekburne 
 
 130/ 201 
 
 Sling V. Nat. Ass. Co. of Ireland. 
 
 381 (H2 
 
 Sloeum V Western Ass. Co. . . . . 
 
 405 (WO 
 
 
 210/* 271 
 
 Sly V. Ottawa Agricultural Ins 
 
 
 Co 
 
 207 3.H9 
 
 Smith V. Accidental Ins. Co 
 
 207 380 
 
 ti 1, tt 
 
 3115 587 
 
 " V. City of London Ins. Co. 
 
 Wit 73 
 
 1, " 1, •> 
 
 219 349 
 
 .t (i ti 
 
 251 353 
 
 «i it 11 
 
 258 359 
 
 It «i It 
 
 :I8I (MO 
 
 tt It It 
 
 103 075 
 
 " V. Home Ins, Co 
 
 279(/ 408 
 
 If It II 
 
 282(1 \'a 
 
 " V, Iiisuranco Co 
 
 370 032 
 
Ml 
 
 XXVUl 
 
 SURANCE LAW OP CANADA. 
 
 Pat. Pago 
 
 Smtih V. Irvine 23a 25 
 
 " V. National Ben. Soc 120 H)5 
 
 " V. National Ins. Co 94 170 
 
 " V. New England Mut. Life 
 
 Ins. Co lilOrt 518 
 
 Smith V. N. Y. Life Ins. Co 386 (5,55 
 
 " V. People's Mut. Live Stock 
 
 Ins. Co. of Penn 330rf 524 
 
 Smith V. Pref. Mas. Mut. Ace. 
 
 Ass :W5 .584 
 
 do ;180 «« 
 
 Snyder v. Travelers Co 276 51 
 
 Soclete ;les Artisans Canadiens 
 
 Franfals v . tJauvin X3'S 5;H5 
 
 SoM>"vs V. Atheniouni Pire Ins. 
 
 Co 322 49fi 
 
 do 323 .502 
 
 Soupras V. Mut. Fire Ins. Co. of 
 
 Chanibly 293 461 
 
 South Australian Ins. Co. v. 
 
 Randall 135 205 
 
 South Bend Toy Manuf. Co. v. 
 
 Dakota Fire & Marine Ins. Co. 322 501 
 South Home Hldg. & Loan Ass'n 
 
 V, Home Ins. Co. of N. Orleans 376 (".24 
 South. Mut. Life Ins. Co. v. 
 
 MontiiK'ue 358c 576 
 
 South Statrordshire Tramways 
 Co. v. Sickness & Ace. Ass. 
 
 Ass'n a52 565 
 
 do :«55 .593 
 
 Southern Bell Telephone & Tele- 
 graph Co. V. Watts 3.53 570 
 
 Southern Lite Ins t'o. v. Booker 3!ilVt 519 
 Southorn Mut. Ben. Ass. v. 
 
 Swenson 417 688 
 
 Sovereign Fire Ins. Co. v. Moir. 274f? 40;i 
 
 V. Peters 3(HI iM 
 
 " V, Pruneau 350 .561 
 
 " " 393 660 
 
 Sowden v. Standard Fire Ins. Co. 2.56 357 
 
 322 194 
 
 323 ,505 
 328 514 
 
 Sparks v Knights Tempi . & Mas. 
 
 Life In<l. Co 38;{ 650 
 
 Spence v . Clarke 2(K)c 25 J 
 
 Spiers & .Vttv.lienl 171 223 
 
 " 2Mc 269 
 
 Spring V. Chautau(|ua Mut, Life 
 
 Ass 2886 451 
 
 Springlli'lii Kire & Mar. Ins. Co. 
 
 V Dc Canielt JClOc 524 
 
 Springlleld Fire \' Mar. Ins. Co. 
 
 V McLiin.ins 286o 436 
 
 Si)rlMgtlcl(l l''ire & Mar, Ins. Co. 
 
 V, Phillips 3;«)r/.52l 
 
 S(iuires v. City of Chllliitothe .... .395 665 
 
 Slai'he V , Insurance Co 376 620 
 
 379 632 
 
 Staliihank V, l'\Mining 120 18(i 
 
 Staiihilhcr v. Mm, Mill, Ins. Co. :mii 519 
 St. Amai\d &guel)ec Ass. Clo., ,, 144 211 
 
 See also in I'm .Si Arniund. 
 
 Standard L. & A, Ins. Co. v. K<i'n 376 622 
 
 " v.Lungsdon :«r. ,591 
 
 " " V, Martin 288c 454 
 
 V. Strong .376 621 
 
 " V. Taylor 365 589 
 
 Standard L, Ass. Co. v. McShaiio 415 687 
 
 Stanley v. Western Ins, Co 347 558 
 
 Stanton v. Aitun Ins. Co 349 560 
 
 Par. Page 
 
 Stanton v. Home Ins. Co 373 615 
 
 St. Armand v. Quebec Ass. Co, . . 270c 306 
 See also supra St. Amand. 
 
 St'.'. . . uenton 417 688 
 
 " V. Citizen.s' Benellt Ass 26«, 46 
 
 " V, Citizens' Ins. Co 417 688 
 
 " V. Fid. & Cas. Ins. Co 417 687 
 
 688 
 
 " V. Ins. Co. of N. A 417 6^7 
 
 " 688 
 
 " V. Lpl. & Ldn. & Globe Ins, 
 
 Co 417 088 
 
 State V. Miller 417 687 
 
 " V. New Riigl. Mut. Ins. Co, 417 688 
 
 " V. Phcenixlns. Co 417 688 
 
 " V. Reinmund 417 ti87 
 
 " V. Thomas 417 088 
 
 " V. Western Union Mut. L. 
 
 Ins, Co 417 687 
 
 State ex rel Covenant Mut. Ben. 
 
 Ass. V. Root 417 688 
 
 State Ins. Co. of Desmoines v. 
 
 Du Bois I'tnl 330f/ 524 
 
 State Ins. Co. of Desmoines v. 
 
 Taylor 304 660 
 
 State Ins. Co. of Des Moines v. 
 
 Taylor 393 668 
 
 State Ins. Co. v. New Hampsliire 
 
 Trust Co 301 474 
 
 Steam Shipping Co. v, Lehnuin. . .505 6,S0 
 
 Stebhins v. Globe Ins. Co 267 391 
 
 Steele v. Pluenix Ins. Co. of 
 
 Brooklyn 352 564 
 
 Steele v. German Ins. Co. of Free- 
 port 404 679 
 
 .Stephens v. (Jerman Ins. Co 375 618 
 
 Stewart v. "Helvetia" Swiss F. 
 
 Ins. Co 330a 519 
 
 SI icklev V. Mobile Ins. Co. 47'' 82 
 
 Stillma'n v. Agricultural Ins. Co. 16it 222 
 
 St. .lohn V.Am. Mut. Life Ins. Co, l(«i 220 
 
 Stock V. Inglis 121 192 
 
 Stockdale v. Dunlon 120 189 
 
 Stone V. Hawkeye Ins. Co 379 632 
 
 " V. U. S. Casualty Co 27c 52 
 
 Stoneham v. Ocean, Railway & 
 
 Oen. Aco. Ins. Co 369 607 
 
 Stott V. London & Lancashire 
 
 Fire Ins. Co 2796 405 
 
 Stoughton V. Manuf. Nat. (>as Co 3.53 571 
 SI. Paul F. & M. Ins. Co. v. Mc- 
 Gregor I(U 670 
 
 St. Paul F. & M. Ins. Co. v. 
 
 Neidecken 28,Sc 464 
 
 St. Phlllii)'s Church, Weston, & 
 
 Glasgow & London Ins. Co 382 6-12 
 
 Slraub v. Grand Lodge A.O.P.W. 
 
 of N.Y :Wf/577 
 
 Street v. RIgby :W(I 0:t5 
 
 Strong v. Birchnrd 78 137 
 
 Suitgs V. Travelers Ins Co 404 678 
 
 Sullivan V. Cotton Slates L. Ins. 
 
 Co 59 01 
 
 Sullivan V. Pho-nix Ins, Co 330r/ 524 
 
 V. Union Pac. R. H. Co,, 3.-i3 565 
 
 .Summertleld v. Plui'iiix Ass. Co. 372 615 
 
 Sunnners v. Comm. Union Ass. Co 322 194 
 
 .,. 495 
 
 " .. ' .. , , 501 
 
 324 508 
 
 Sun Ace. Ass'n v, Olson 370 624 
 
 Sun Fire Olllco v, Ayerst 398 668 
 
TABLE OF CASES. 
 
 XXIX 
 
 I'nr. I'iiKO 
 
 Sun Fire OtHce v. Clark et nl :«1 174 
 
 V. Hart 2(«Wa78 
 
 V. Wich HaOa 118 
 
 Sun Life Ass. Co. v. Page (W '.»o 
 
 Sun Mat. L. Ins. Co. v. IJeland .. 305 «i4 
 Supreme Council A. L. H. v. 
 
 Larniour 2H8f 4.54 
 
 Supreme Lodge A. O. W. v. 
 
 Zahllu' 125 104 
 
 Supr. Sitt. Order of llie Iron Hall 
 
 V. Steen 370 (122 
 
 Susiiufhanna Mut. F. Ins. Co. v. 
 
 Leary 340 544 
 
 Swearinj^ei- Bros. v. I'ac F. Ins. Co 372 (ilo 
 Sweeting (7 ((/. v. Mut. Fire Ins. Co 2i)7 4(iO 
 Swift V. Massa. Mut. Ins. Co 12(i 105 
 
 " V. Provl. Provident Inst... 233 2K3 
 Syndicate Ins. Co. v. Catcbings.. 33()c 524 
 
 ' " " " " . ;«0(; 525 
 
 T 
 
 Tarleton v. Stainforth 78 IW) 
 
 131 
 
 132 
 
 Tate V. Hyslop 283 428 
 
 Taunton V. Hoyal Ins. Co 40« 8-1 
 
 3(il .-i78 
 
 Taylor v. .Etna Life Ins. Co 370 (ilO 
 
 " V. State Ins. Co 322 407 
 
 Tennant v. Ins. Co 3306 .522 
 
 Terry v. Prov. Fund Soc. of N. 
 
 York 33{»(f 518 
 
 do 510 
 
 Teissier v. Co. Ass. Mut. ilc Hi- 
 
 niouski 274c 402 
 
 Tliacker Mining k. Smelting v. 
 
 Amer. !•'. Ins. Co 3:«l(( 521 
 
 Thatcli V. Insurance Co 212^ 2(!3 
 
 Thin, (V 2106 271 
 
 TlionniB V. IJrown 403 ti7(i 
 
 V. Hurlinglon Ins. Co.... 37(1 023 
 " vtiil.w Times & Beacon 
 
 F. A.s.s. Co 378 020 
 
 Thompson v. .\dams 3.>l 571 
 
 V. Cluirnoek 380 035 
 
 V. Ilnd.son 78 133 
 
 " V. Insurance Co 78 125 
 
 " V. Knickerhocker Ins, 
 
 Co 78 125 
 
 ilo 70 147 
 
 do 04 170 
 
 '• V. Montreal F. Ins, Co .340 557 
 
 V, N, Y. Life Ins. Co.. 305 (K!5 
 " V. N'ictoria Mut. F. 
 
 Ins. Co 3IKI (W) 
 
 V, VVeein.s 28 W 414 
 
 do 287/ 414 
 
 TJiomson v, Hudson 2117 380 
 
 Tiiorne v. Deas 130/ 2(H» 
 
 Tiernan v. Peoples Life Ins. Co.. 7;i 101 
 Tillon V, Kingston Mut, Ins. Co. 212(f 250 
 
 " .. 201 405 
 Tllton V. Accidental Death Co. . . . 207 38<l 
 Tinniyenis v. Union Mut, L, Ins, 
 
 Co 370 021 
 
 Titus V. Glens Falls Ins, Co 370 02l 
 
 " " " 023 
 
 Todd V. Liverpool, etc., Ins, Co. . 131 201 
 
 " .. 1326 203 
 
 Tompkins v. Levy 310 401 
 
 Toronto Savings Bank v. Cniuida 
 Co 125 104 
 
 Par. I'lige 
 
 Toronto General Trusts Co. v. 
 
 Sewell 220 281 
 
 do 38(i 055 
 
 Torrop v. Imperial Fire Ins. Co. . 3(Hi 484 
 
 Tough V. Provincial Ins. Co 20(1 375 
 
 Tourigny v. Ottawa Agri. Ins. Co. 38(i 0.55 
 
 Tracy v . Wood VMJ 200 
 
 Traders' Ins. Co. v. Roberts 212a 2.59 
 
 204 405 
 
 Trask v. Insurance Co 308 004 
 
 Travelers Ins. Co. v. Calif. Ins. 
 
 Co ao4 002 
 
 " 404 077 
 
 V. Dunlop.... 305 ,588 
 
 v. Harvey.... 3311c 525 
 
 " " V. Henderson '&V.)il 525 
 
 " " V. .lones 27r 51 
 
 V. Melick ;«)5 ,588 
 
 V. " .... 375 (!!<> 
 V. Sheppard.. 41V 088 
 V. Snowden... 305 584 
 Tripp V. Xorthvv. Live Stock Ins. 
 
 t'o *«)« .510 
 
 Trundle v. Prov. Wash Ins. Co . . li'tOa .521 
 
 " V. ;j7r, 010 
 
 Trustees First Bajitist Church v. 
 
 Brooklyn F. Ins. Co ,'}:«)« 510 
 
 Tucker v. Mutual Benefit Co 27c 51 
 
 Tnrgeon V. C'lizens Ins. Co 101 174 
 
 Turley v. \. Am. Ins. Co 372 014 
 
 Turnhull v. Trav. Ins. Co .381 (|,5(( 
 
 V. " " Joi 070 
 
 Turner v. Barlow 7,s 137 
 
 Tultle V. Travi'lers Co 27c 51 
 
 U 
 
 I'Irich V. National Ins Co 3SI 0.37 
 
 Underwood v. Insurance Co 370 (522 
 
 Union V. Yount 400 (i83 
 
 Union .\ss. Co., rr 101 230 
 
 Union Centrtil Ins. Co. V. Pottker. 01 170 
 Union t'entriil Life Ins. Co. v. 
 
 Smith et iil ;wi iViO 
 
 Union Fire Ins. Co. v. I'^it/sini- 
 
 mons et al 418 001 
 
 do .121 003 
 
 Union l''ire Ins. Co. v. Lvman 421 003 
 
 V. tihieids.. . 421 003 
 
 Union Ins. Co. v. Barrett :HI0 484 
 
 Union Ins. Co. of Calif. V. Barwick 308 m\ 
 
 375 017 
 :W1 030 
 Union Mut. Acc.Ass'n v. Frohanl 305 580 
 Union Alut. Life Ins. Co. v. Wil- 
 kinson 322 407 
 
 Union .\ul Bank of Oshkosh v. 
 
 German Ins. Co. of Freeport... 301 474 
 
 <lo ;};i(),r .521 
 
 do 330r/ .525 
 
 Union BuhlierCi). V. Hihhard 400 082 
 
 United Bri-lhren Mut. Aid Soc. v. 
 
 McDonald 178 220 
 
 United Bretliren Mut. Aid Soc. v. 
 
 O'llara 2,88r 451 
 
 U.S. Mut Ace. As.s'n v. Kiltewing 3;tO(/ 524 
 Unsell V. Hartford Life & Ann. 
 
 Ins. Co ;i;t06 522 
 
 Utter V. Travelers Ins, Co ;«J5 501 
 
 V 
 
 Van Allen v.FarniersMoint Stock 
 Ins. Co il22 407 
 
■Ml 
 
 XXX 
 
 INSURANCE LAW OF CANADA. 
 
 Par. Page 
 
 Van Allen v. Insurance Co 370 023 
 
 VanKindertaelen v. Phcenix Ins. 
 
 Co. of Brooklyn 381 640 
 
 Van Norman v. N. W. Mut. Life 
 
 Ins. Co 340 543 
 
 Vanzandt v. Mut. Ben. Life Ins. 
 
 Co 3Ki 047 
 
 Venner v. Sun liife Ass. Co :W 08 
 
 " " " " 25L'6 352 
 
 " 201 370 
 
 2(W a»2 
 
 " " " " 2H1« 410 
 
 Vennor v. Life Ass. of Scotland. . 200 375 
 
 " " , . 3n8r 570 
 
 Vezina v. Can. Fire & Mar. Ins. Co 271o 397 
 
 " V. N. Y. Life Ins. Co 104 210 
 
 " " 105 220 
 
 " 1(M^ 221 
 
 " " " "... 170 223 
 
 VictoriaMut. F. Ins.Co.v.MuUin »« 534 
 
 " " V.Thomson :i;t2 5;«) 
 
 " " " 334 5;«( 
 
 " " " " ... 5.37 
 
 VilliiKcof London West v. London 
 
 Guarantee & Ace. Co 278 104 
 
 Virginia V. & M. Ins. Co. v. 
 
 Vaughan 379 (W2 
 
 Vtvar V. Supr. Lodge Knights of 
 
 Pythias 125 i;)3 
 
 do 288 447 
 
 do 288/j 451 
 
 Von Liiidenau v. Deshorough . . . 124 192 
 
 W 
 
 Waldeck v. Springlleld Fire and 
 
 Marine Ins. Co 376 020 
 
 WaldniiUi v. Nortli Brit. & Merc. 
 
 Ins. Co 33i1c 524 
 
 Walker ct at v. Beecher 322 500 
 
 " V. Uerinan Ins. Co. of Free- 
 port 375 017 
 
 Walker v. Provincial Ins. Co 322 494 
 
 Wauless V. Lancashire Ins. Co. . . 291 458 
 
 Want V. Blunt 78 127 
 
 131 
 
 351 5*12 
 
 Ward V. Metrop. Life Ins. Co. . . . 33()(f 521 
 
 Wanh'ii V. (iuardian Mut. Life.. 78 138 
 
 Ware v. .Milville Fire Ins. Co. . . . 78 130 
 
 Warnock v. Davis 124 191 
 
 181 228 
 
 Warren v. Davenport. 100 218 
 
 V. Pho-ni.x Ins Co •,mn 519 
 
 " et III V. Springlleld Fire & 
 
 Mar. Ins. ("o 370 010 
 
 Washington Cent. Hai\k v. Hume 125 195 
 
 Waters V. Monarch Ins. Co 13(l(' 198 
 
 Waterlown I'ire Ins. Co. v. Bast. 417 088 
 
 Watkins v. Kymill 322 498 
 
 Watts V. Atlantic Mut. Life Ins. 
 
 r.) 81 159 
 
 Wealleans V. Can. Ins, Co 3511 500 
 
 '''e'>:<ti'r V. British Kinplrc Mut. 
 
 ;,lfe Ass. Co 2W» 252 
 
 V,'ei'(i V. London & Lane. Fire 
 
 Ins. Co 350 502 
 
 do 370 023 
 
 Weeks v. Frawley 21 2(/ 205 
 
 213 208 
 
 Weir V. /Ktna Ins. Co 303 582 
 
 WelsH V. Anier. Fire Ins. Co 370 021 
 
 Weld V. Mut. Life Ins. Co 383 050 
 
 Par. Page 
 
 Welsh V. London Ass. Corp 370 611 
 
 West V. Norwich Union Fire Ins. 
 
 Soc 301 474 
 
 do 330a .521 
 
 Westchester Fire Ins. Co. v. Wag- 
 ner & ChalKJt . 3;J0n .521 
 
 West Coast Lumber Co. v. State 
 
 Inv. & Ins. Co 379 032 
 
 do 394 602 
 
 Westend Hotel & Land Co. v. 
 
 Amer. Fire Ins. Cc .322 490 
 
 do 330re521 
 
 Westerman v. Home Mut. Ins. 
 
 Co. of Calif 3:i0rt .522 
 
 Western Ass. Co. v. Doull 293 401 
 
 462 
 
 V. Prov. Ass. Co. .322 493 
 327 511 
 
 ' V. Stoddart 282(7 42;i 
 
 " V. Williams 3;W« 519 
 Western Bank v. Courtemanche. 190 236 
 Westminster Fire Oflice v. Glas- 
 gow Provt. Invest. Soc 148 
 
 Wheat Jield v. Beal 328 
 
 Wheaton v. North Brit. & Merc 
 
 Ins . Co 288f» 447 
 
 Wlieelton v. Ilardisty 207 388 
 
 White v. Brit.. Emp. Mut. Life 
 
 Ass. Co 38;^ 
 
 White V. Home Ins. Co 305 478 
 
 " V. Lancashire Ins. Co 320 511 
 
 " V. Madison 322 
 
 Whitehead v. New York Life Ins. 
 
 Co 237 
 
 do 
 
 do 
 
 do 2:W 
 
 Whiteman v. Am. Cent. Ins . Co. 3.52 
 
 Whitlatch V. Fid. & Cas. Co 305 
 
 Wliitmore v. Dw'g. Use. Ins. Co. 370 
 
 Whitney v. McKinney 305 481 
 
 " V. Nat. Mas. Ace. Ass'n 330f/ 525 
 
 380 0;J6 
 " " " ;»8l 
 
 Whyte v. Home Ins. Co 1 10 
 
 " v. Manuf. Ace, Ins. Co.. 27(^ 
 
 .. 3i'0 
 
 " v. Western Ass. Co 308 
 
 " " " " 309 
 
 Wicksteed v. Munro 214t' 
 
 319 
 
 Wiestling, &c., see Wrestling, &c. 
 
 Wiggins V. Queen Ins. Co 378 
 
 Williv v. Standard Ins. Co 282 
 
 Wildla-rger v. Hartford I'"lre Ins. 
 
 Co 320 
 
 Wilder V. PIkimiIx Ins. Co 272(( 
 
 Wilklns v. Mut. Res. I'M. Life 
 
 Ass'n 330f; 524 
 
 Wllley V. Mut. Fire Ins. Co. of 
 
 Slanstead ;i05 
 
 do ;«»7 
 
 Williams V. Can. Mut. Kire Ins. 
 
 Co 322 
 
 Williams v. U.S. Mut. Ace Ass'n 305 
 
 Wllmot v. Barher 78 
 
 Wilson rt nl. v. yKtna Ins. Co. . . . 297 
 
 " v. ^Ktna L. Ass. Co 380 
 
 " V. Citizens Ins. Co 130/i 200 
 
 131(( 202 
 
 " V. Hill 205 248 
 
 " V. Mut. F. Ins. Co 301 474 
 
 214 
 .512 
 
 650 
 
 499 
 
 287 
 290 
 291 
 292 
 .505 
 591 
 021 
 
 (MO 
 208 
 .54 
 (107 
 (H)4 
 006 
 200 
 491 
 
 028 
 418 
 
 511 
 398 
 
 478 
 
 484 
 
 400 
 
 591 
 
 i:i0 
 
 409 
 
TABLE OF CASES. 
 
 XXXI 
 
 Wilson V. Standard Fire Ins. Co . 
 
 >i 11 .1 It 
 
 " V. State Fire Ins. Co 
 
 I'ar. Page 
 250 a51 
 
 Wing V. Harvey 
 
 Winne v. Niagara Fire Ins. Co. . . 
 
 t* i- (( 4( 
 
 Winspear v. Accident Ins. Co 
 
 Wolfe V. Finhiy 
 
 Wood V. Ainer. F. Ins Co 
 
 Worsley v. Wood . 
 
 Worswitk V. Canada F. & M. 
 
 Ins. Co 
 
 do '....'..'.'.'.'.'.'.] 
 
 Worthington v. Curtis 
 
 Wrestling v. Warthing .....'....'. 
 
 Wright V. Fire Ins. Ass. of London 
 
 <■ <C 11 11 
 
 207 
 
 2«0 
 
 -lo:} 
 
 77 
 
 ;iA5 
 
 409 
 671 
 112 
 
 212rt 2.59 
 2126 2m 
 ;«)5 .5KS 
 
 'zmh 25a 
 
 •XiOa i521 
 403 072 
 
 267 
 
 2K7e 
 
 124 
 
 ;{58 
 
 41.7 
 
 .'{50 
 370 
 
 385 
 439 
 KM 
 575 
 6H7 
 689 
 562 
 610 
 
 Wright V. London Life Ass. Co. . 5 
 '• " 11 11 - 
 
 " V. Mut. Ben. Life A.ss'n . . 
 V. Sun Mut. Life Ins. Co. 
 
 Wyld V. Liverpool & London & 
 Globe Ins. Co. . . 
 
 do 
 
 do 
 
 Wyld V. Pyckford 
 
 Wynmn v. Imperial Ins. Co 
 
 yovecfal. V. Booth 
 
 ioung V. Ace. Ins. Co. of N. A. . 
 
 Par. 
 
 PaRu 
 
 50 
 
 85 
 
 51 
 
 85 
 
 288c 454 
 
 50 
 
 86 
 
 HI 
 
 85 
 
 365 
 
 589 
 
 104 
 
 175 
 
 322 
 
 406 
 497 
 201 
 
 130.? 
 
 137 
 
 207 
 
 375 
 
 619 
 
 385 
 
 663 
 
 Zininierman v. Dwelling-House 
 Ins. Co. of Boston 
 
 326 511 
 
LIST OF ABBREVIATIONS 
 
 OF 
 
 CANADIAN REPORTS AND REFERENCES. 
 
 A. R.... Ontario Appeal Reports. 
 
 Can. L. T Canadian Law Times. 
 
 C. C. L. C Civil Code of Lower Canada. 
 
 C. P Code of Procedure (Quebec). 
 
 Geld & Oxley Nova Scotia Reports. 
 
 Grant's Chy Upper Canada Chancery Reports. 
 
 L. C. J Lower Canada Jurist. 
 
 L. C L. J Lower Canada Law Journal. 
 
 L. C. R Lower Canada Reports, 
 
 L. N Legal News (Montreal). 
 
 M. L. R., Q. B Montreal Law Reports, Queen's Bench. 
 
 M. L. R., S. C " " " Superior Court. 
 
 N. S Nova Scotia Reports. 
 
 N. W. T. Rep North West Territories Reports. 
 
 Ont. P. R Ontario Practice Reports. 
 
 O. R Ontario Reports. 
 
 Pugs New Brunswick Reports. 
 
 Q. B. R Queen's Bench Reports (Quebec). 
 
 Q. L. R Quebec Law Reports. 
 
 Q. R., Q. B Quebec Official Reports, Queen's Bench.. 
 
 Q. R., S. C " " " Superior Court. 
 
 R. C Revue Critique. 
 
 R. de J Revue de Jurisprudence. 
 
 R. L Revue Legale. 
 
 Rev, de Leg Revue de Legislation. 
 
 "R. J. Q Rap})ort8 Judiciaires de Quebec. 
 
 Russ & Geld Nova Scotia Reports. 
 
 R, S. C Revised Statutes of Canada. 
 
 R. S. M " " "Manitoba. 
 
 R. S. O " " "Ontario. 
 
 R. S. Q " " "Quebec. 
 
 S. 0. R Supreme Court Reports, Canada. 
 
 U. C. C. P Upper Canada Common Pleas. 
 
 U. C. Q. B " " Queen's Bench. 
 
A TREATISE 
 
 ON THK 
 
 INSURANCE LAW OF CANADA. 
 
 CHAPTER I. 
 
 HISTORY OF THE CONTRACT OF INSURANCE. 
 
 ]. Reskarches as to antiuuity ok 
 inhuhanc'e. ■ 
 
 'i. No TRA( i: OK INSURAN<'E CON- 
 
 tua( t in roman law. 
 
 3. Reason kor mistaken infer- 
 ences. 
 
 4. MUTCAI, insurance AND THE 
 ANGLO-SAXON (lUILDS. 
 
 5. First authentic traces of in- 
 
 SlIRANCE. 
 
 (!. First appearance or legal 
 
 WORKS ON insurance. 
 
 7. Condition of capital in middle 
 
 ACIES. 
 
 8. Formation of fir-st companies 
 FOR commercial purposes and mar- 
 ine INSURANl'E. 
 
 0. OrKJIN OF FIRE INSURANCE AND 
 SHORT SKETCH OF SAME IN THE PHIN- 
 IIPAI. COUNTRIES. — FIRST PROJLCT OF 
 FIRE INSURANl E IN ENOLAND — UNITED 
 STATES — OERMAN Y — FRANCE -OTHER 
 COUNTRIES. 
 
 10. OhIHIN of LIKE INSURANCE AND 
 SHORT SKETCH OK SAME IN THE PRIN- 
 CIPAL COUNTRIES - ENGL A.ND -UNITED 
 STATES — GERMANY — FRANCE - OTHER 
 COUNTRIES. 
 
 11. Accident insurance — great 
 britain— united states— (ier.m an y— 
 krance— other countries. 
 
 12. Agricultural insurance— 
 hail-storm— live stock. 
 
 13. Division into three (jenkral 
 
 GROUPS, 
 
 14. Countries regulated by Eng- 
 lish LAW-GREAT BRITAIN— CANADA 
 
 — inited states. 
 
 15. Countries recjulated by 
 krench law — france — belgium — 
 netherlands — italy — spain -- por- 
 tugal — (jreece and roumanian pro- 
 vinces—turkey and egyi>t— chili- 
 argentine republic— uruguay and 
 paraguay— br/. hil— mexico— salva- 
 dor—nicaragua—costa rica — new 
 grenada— venezuela — peru — boli- 
 via— hayti — san domingo -guate- 
 mala—honduras. 
 
 10. Countries under gkrman law 
 — germany — l'ru.ssia — other oer- 
 man states — switzerland — aus- 
 tria-hungary — russia — sweden - 
 norway— denmark. 
 
 1. Researches as to antiqnity of insurance. — The contract 
 of insurunce has been connidered until lately to be of compara- 
 tively recent origin. The roHiilts of further inventigations, how- 
 ever, if correct, Hcera to refute this idea und to confirm once 
 
2 INSURANCE LAW OF CANADA. 
 
 moro tho truth of the adage that there is nothing new under 
 the sun. These investigations tend to show that the idea of insur- 
 ance is of great antiquity and was carried out practicall}- by the 
 highly cultured people who inhabited at one time (.-ertain parts of 
 Asia atui from whom our present civilization and languages are 
 derived. Xo traces, liowever, have been found to show that the 
 system supposed to have been in vogue in those far off' centuries 
 was to any great extent similar to the present plans of insurance. 
 The assertions nia<le on this subject must be taken cum (jrano salis 
 and they are reproduced here as being of historical interest oid}'. 
 
 A letter which appeared in the London " Times "' some years 
 ago, signed " Cantab," refuted the statement made by Dr. Adier 
 that the earliest notice of insurance is to be found in the Talmud. 
 According to the writer of this letter, the practice of insurance was 
 common in India for many centuries before the beginning of the 
 Christian era. In the " Manava-dhar-masastra,'" or " Institutes of 
 Mana," it is referred to incidentally as a well-known charge in the 
 transit of goods, to be taken into account in estimating the tax that 
 was to 1)6 levied on the trader. The Sanskrit word equivalent to 
 our " insurance'* — "yoga kshema " — is very ancient ; it has been 
 explained by Grassmann as " Erwerb und Besitz " — "acquisition 
 and possession" — but more probably it meant property held by an 
 assured, or full legal tenure ; and hence its use in a later period as 
 a law term, ecpiivalent to '' a contract between two parties by 
 which one undertakes to guard, or insure, any [)roiierty or even 
 the life of the other, for a certain consideration."" ' 
 
 According to Stewart, the earliest application of fire insurance 
 was in connection with communes of towns and districts. These 
 communes flourished in Assyria and the East more than 2,500 years 
 ago. Judges, priests and magistrates were app(»inted for each 
 town and district, with power to levy contributions upon each 
 member of tlie commune to provide a fund against sudden cal- 
 amities, such as drought and tire. If the judges were satisfied that 
 the file was accidental, they empowered the magistrates to assess 
 the members of the commune either iji ki!)d or in money, and in 
 the event of any member being luiable through [loverty to meet 
 his share of the contribution, the deficiency was made up from the 
 common fund. These communes still exist in a modified form in 
 
 ' Rclton, I'Mrc Iiisuiaiiue CuniiKvnies, p. H. 
 
HISTORY OF THE CONTRACT OF INSIRANCE. 
 
 3 
 
 China. Id somo towns of Russia tlie iiilialtitants art- jointly respon- 
 sibk' for accidental fires, an<I the government make enforced con- 
 tributions according to tlie status and wealth of the inhabitants of 
 the town or village. These communists had and have nothing in 
 common with tlie communism of the [»resent day, which signifies 
 tlie negation of private property.' 
 
 2. No trace of insurance contract in Roman law. — There 
 is no mention of the contract of insurance in the Roman law, and 
 there is no tfood reason for helieving that it \vas ever in use amonijr 
 tlie Romans. That warlike and ambitious people seem to have 
 prosecuted navigation with a view to conquest sdone, leaving com- 
 merce, a subject of inferior consideration to themselves, to be car- 
 ried on by their freedmen and slaves. A passage in one of Cicero's 
 letters has been adduced as evidence that the Romans knew this 
 contract,' but the sense of the passage does not warrant the infer- 
 ence. And tlie same may probably be said of other passages from 
 which attempts have been made to trace the contract further back 
 than the 13th century.'' 
 
 3. Reason for mistaken inferences. — Those who seek to 
 draw these inferences seem to confuse one of the elements of insur- 
 ance, indemnity, l)y a midiUe-man, for instance, who transports or 
 stores goods belonging to another and is responsible to him tor 
 their safe-keeping, with the combined result of the two elements 
 constituting the insurance contract of the middle ages, indemnity 
 on a basis of mutual obligations, (the insured undertaking pay- 
 ment of premium and other conditions,) or the three elements 
 composing the insurance contract of to-day, indemnity and reci- 
 procity based on a scientific application of statistics gathered from 
 past experience. Even in the fa'vus nauticum there is no trace of 
 insurtance ; the Romans seem to have had a dim conception that 
 the pretium periculi of transportation might be estimated, that is 
 all, and on this vague idea some speculative contracts were entered 
 into.* 
 
 i. Mutual insurance and the anglo-saxon guilds. — Wal- 
 ford says that the first glimmer of the principle of mutual insur- 
 
 I Helton, p. fi. - Cic. Ad. Fani. 2, 17. 
 
 ^Livy Hist. lib. it, n. 4!t et 25, c. S. Suet c. IS. Lex. Merc. 10;j, 1 Alauzet .'Jl. 
 1 MiirshiiU Pre. Disc. 5. 1 Ourer mtro. Disc. DeLalaude Coiitrat d'Ass. contre I'ln- 
 cenilie, S .5 & set). 5 Pivrdessus Itil. CImufton, Ass. I, 'MS. 
 
 * Chivufton, i., IMS sei)., and sec infra S l*^. 
 
 I 
 
4 INSURANCE LAW OF CANADA, 
 
 ance arises in connection with the Anglo-Saxon guilds, wherein 
 the members made fixed periodical pa\-ment8 towards a common 
 fund, whereb}' they secured each other against loss from " fire, 
 water, robbery, or other calamity." Here we liave an acknow- 
 ledgment of the necessity of protection against fire, and an iiidica- 
 tion that the only means of protection available was by this means 
 of mutual association for common objects of protection. It is im- 
 portant in this connection to note that guilds appear to have been 
 A'cry common among the ancient Greeks and Romans ; and that 
 their objects were almost identical with those of the guilds of the 
 Anglo-Saxons of later date.' 
 
 5. First anthentic traces of insurance. — Maritime insur- 
 ance was naturally the first to appear. It was probably intro- 
 dnced in Italy by the Lombards in tJie 13th century. " Lom- 
 bards is the name given to certain Italians from Lombardy, 
 residing in England early in the 13th century, who are supposed 
 to have introduced insurance practice into that kingdom, and 
 became the great moiiey-loaners and underwriters of the world ; so 
 that policies written elsewhere were always expressed " to be made 
 .according to tiie custom of the Lombards, in Lombard street, 
 London." - 
 
 Walford refers to the " Custom ot Fumes," article xi. of tlie 
 law promulgated in 1240 by the Count of Flanders rer^uiring the 
 whole town to pay a loss incurred by a house being secretly burnt. 
 
 In Ryley's " Memorials of London," 1868, p. 46, we find an 
 agreement made by one Thomas Bat in 1302, to keep the city of 
 London indemnified from peril of fire which might arise from his 
 houses covered with thatch, and to have said houses covered with 
 tiles within a stated time. 
 
 In the 14th century in the " Custom of Amsterdam," and the 
 " Chronicle of Bruges," we find reference to an insurance organiza- 
 tion and to an insurance chamber.' 
 
 The Act passed in 7th Parliament of King James I. of Scot- 
 land, 1427, entitled : '' The leave to merehants to sure their gudes " 
 relates, as far as the particulars given go, to protection from fire 
 only.^ 
 
 The ordonnance of Barcelona on insurance which reproduced 
 
 iln.s. Cycle, iii., 4SS. 
 U:haufton, i., :150. 
 
 '^ Griswold, 90. 
 * Relton, p. 8. 
 
HISTORV OF THE CoSTBAOT 01' INSURANCE. 
 
 aiul amendt'd prior ordutinance.s dates from 1435.' In 1522, Flor- 
 ence promulgtited the famous statute of the Council of 100, fol- 
 lowed by the ordounaiioes of 1523, 1526 and 1528." ooa and 
 Xaples also {>romulgated an onh)nnance at that time, and insur- 
 ance hiwrt were enacted in Spain and Portugal under Phillip II., 
 and in Holland under Charles V. and Phillip II, ; all of which is 
 sufficient evidence that marine insurance was generally known 
 throughout Europt' at that time.'' 
 
 In the year 1574 a grant was obtained from Queen Elizabetli 
 by one Richard Candeler, mercer, to make and register all manner 
 of assurances, etc., upon any ship, goods or merchandise, etc, 
 within the city (»f London.' 
 
 In the Statute 43 Eliz. cap. 12 (1601), " Ad Act co>icermn() mat- 
 ters of Assurances used amomj Merchants,''' the first passed in Eng- 
 land affecting iiit-urance associations, it was stated that marine 
 insurance had been " tyme out of mynde an usage amongst mer- 
 chantes both of tliis realme and of forraine nacyons," and under 
 this act commissioners were appointed for hearing and determining 
 causes concerning policies of assurance.^ 
 
 In the reign of Charles II,, (13, 14 Car. ii, cap. 23,) the powers 
 of the conmiissiouers were enlarged. 
 
 At a later date it was declared that tlie court was not compe- 
 tent to deal with life insurances — only with such contracts as 
 related to merchandise {i.e., marine insurance) ; besides, it only 
 extended to actions by assured against assurers, and its decision-* 
 were no bar to actions respecting the same subjects in tiic common 
 law courts. 
 
 Notwithstanding the above declaration, however, we find under 
 article " Insurance," Chambers's Encyclopjedia, vi., 1T5, 1890, a 
 statement that the earliest life assurance [lolicy of which particu- 
 lars have been preserved, was made on lotli June, 1583, at the 
 Office of Insurance within the Royal Exchange. When the person 
 wliose life was insured died, payment was disputed on the point 
 whether the time for which the life was insured was 12 months of 
 28 days, or a full whole year. The commissioners ruled in favor 
 of the latter inter[)retation and ordered the underwriters to pay. 
 
 ' Fartlessus, l^ois nmritiines. Paris, 1S;J7.— Siicenloti, II foiitmtto il'iissifura. 
 zione. Padua, 1874.— Eudemaiiii, Die Eiitwicklung des Assecuraiizwu.sens, Doiitsclic 
 VierteljahrnSchrift, IhKki, No. 112. 
 
 - Thesi' docuiniiut liave been published by Baldasserotii in his treatise on 
 Marine Insurances, vol. V. ■' Chaufton, i., 3.t0. * Relton, 4 se(i. ■'' H). 
 
mmmmm 
 
 6 
 
 INSURANCE LAW UF CANADA. 
 
 This (lecit*ion was ui)liol(l by two Judges on an iipi)eal to the nom't 
 of Admiralty. 
 
 That marine undonvriters were an important class, and carriod 
 on an extensive business, may be judged from the following item 
 of intelligence : " 1615. There was here in London a merchant 
 called Mr. Havers, who was a great assurer of goods (a common 
 trade in the cittie) and thereby he was growne vnto a good estate^ 
 and esteemed to be worth .'^O or 40,000;."' 
 
 6. First appearance of leRal works on insurance — In 
 
 the 17th century the first ^.-gal workr- upon insurance made their 
 appearance. The Portuguese Tedro Santerna and the Italian 
 Eenvenuto Straccha- wrote at tliis period, 
 
 7. Condition of capital in middle ages. — The principles of 
 political economy then in vogue served to give an impulse to 
 insurance ; capital was considered essentially unproductive, and it 
 naturally sought every means of evading this sterility. Marine 
 insurance offered it an outlet of which, however, it availed itself 
 so blindly, that the contract ([uickly degenerated into one of pure 
 speculation. This is easily explained by the fiict that insurance 
 business was then tran8acte<l exclusively l)y individuals. Cajiital at 
 that time was not perniitted to make use of i'ombinatioi\, and was 
 devoid of any trace of such well tried systems and methods as 
 now govern and regulate its use, multiplying its power nnmitbld, 
 and at the sanu' time keeping it within the bounds of safety. 
 
 In olden times little was done in the way of investing funds, 
 and money was generally kept in a chest. As an illustration of 
 the chests of this period it is interesting to note that in the articles 
 tor establishmg the " l[ereditary " com[iany upon 2000 lives, 1712, 
 . V tide xiv says : That a strong and substantial iron iliest with a 
 slanting till in the middle of it shall be bought, having five difler- 
 ei\t locks and keys with different wards, which shall be fixed to 
 the floor with scri'ws from llm inside of it, in the oftice of the com- 
 pany, to be absolutely immoval>h'. Keys to be delivered to dif- 
 ferent trustees.' 
 
 ' licllon. p. I It. 
 
 •' Slriici'liu in Ills tivdttsc on nssuninci'N couinuMits on tlio itolicj of Aiicoiiii of 
 KHI7, jinil (piol^'H tlie law of Florence regardinn nil those polntH on wlileli tliiu policy 
 wiis silent. • Ueltoii, IIS'I. 
 
HIPTORY OF THE C" T'MCT UF INSURANCE. 
 
 8. Formation of firat companies for commercial purposes 
 and marine insurance. — Hollaii<l was the Mrst to r. move the 
 legal prohihitioiis aa;ahist the employment of capital, and in 1602 
 the first stock I'ompany was formed there. The second tollowed 
 in England in l()i:5. Efforts were then made to apply this new 
 form of business association to insurance, hut they were at first 
 iinsuccesstul. A company founded in Holland in 1(329, and another 
 in France in 1008, did not prosper. It was in the 18th century 
 oidy and in England that the organism of a stock company was 
 successfully applied to insurance. A marine insurance company 
 was formed tlieri- in 1720. Marine insnrance companies were also 
 formed at Co[icnhagen in 1726, at Stockholm in 1734 and at Berlin 
 in 1705.' 
 
 9. Origin of fire insurance and short sketch of same in 
 the principal countries. — Ajtart from those more or less doubtful 
 traces supposed to have been fi)und in ancient history and recorded 
 alove, the origin of fire insurance seems to be more uncertain than 
 tliat ot marine insnraiiee. 
 
 in Germany, some of the early guilds were converted ijito 
 assurance associations. The "Feuer-Casse," at Hamburg, is said to 
 lie one of the earliest distinct fire insurance associations of which 
 tlierc is any knowledge. In 1591, several small " Brundgilden " 
 entered into lire contracts for mutual insurance. These mul- 
 tiplii'd until, in l(i7(l, it was detm-mined to unite them all (Wal- 
 tbrd says there were about 4(3) into one "• Geiicral-Feuer-Cassc."' 
 It has nntlcrgone various changes since that time, and now cm- 
 braces all the suburbs of IIand)urg, as well as the city. Kire guilds 
 also existed in Scldeswig-JIolstein, in the early part ol the 15th 
 eentury.- 
 
 Some of the very I'arliest proposals for insuring dwellings 
 from Hrc(ap.irt from guild or mutual schemes), although tln-y \vcr(! 
 cxplainetl and understood with a degree of sagacity and I'learness 
 tar beyond the time at which they were drawn up. were almost 
 I'cgarded as jtrcsumptnous scln'mes, wherewith providence might be 
 tempted, and likely to excite injurious rellections on the party by 
 whom the security was given. The first suggi'stion was made to 
 Count Anthon (Jiinther v, Oldenburg, in (li'rnnmy, mi the year 
 1(109, hut was not acted upon for tin' reasons stated al»ove.' 
 
 ' ("Imiiflon, I., :tril, ;ifV.'. " Ki-ltmi, 7 ; Walforcl, Ins. ("veld., v. ;1HS, HHK. 
 ■' Kflloii, II; Itcrloniimi's HlHtoi'.v iif Invciil ioiiM. HoIiu'h o'liddii, IS<(i, \()l, !., 
 .'Il,-Ml>. 
 
mm 
 
 8 
 
 INSURANCE LAW OF CANADA. 
 
 Fire insurance has been described as the legitimate, though 
 tardy, offspring of marine insurance.' 
 
 Mr. F. G. Smith, in ttie article " Fire insurance," in the 8tli 
 edition of the Encyclopaedia Britannica, says : 
 
 " Considering that marine insurance was well known, and 
 insurance on life understood and practised to a certain extent in 
 several mercantile countries by the middle of the 16th century, it 
 appears extraordinary, when we call to remembrance the devasta- 
 tions and distress occasioned by lire in this country, that some 
 means should not have been adopted at an earlier period to render 
 such calamities lesr. ruinous to individuals, particularly when a plan, 
 which appears eventually to have formed the basis of the present 
 insurance companies, was suggested so early as 1609." (Oldenburg, 
 Germany.) 
 
 Schemes for a species of tire insurance in London were stig- 
 gested in the years 1635, 1638 and 1660, but nc^uie were brought 
 to maturity. 
 
 The most conelusive evidence that fire insurance had not begun 
 to be practised in England in 1666, is probably to be found in the 
 fact that no allusion has been traced in the accounts of the great 
 tire of London, in thiit year, to the circumstance of any of the 
 property having been covered by insurance; had such been the 
 case, it would doubtless not have escaped notice. The amount 
 of damiige l)y that tire has been variously estimated at from 
 £7,335,000 to £10,689,000. There can be no doubt that it was this 
 calamity which led to the serious consideration of the subject of 
 fire insurance and which resulted in the production of a scheme in 
 the following ycar.- 
 
 Speakiiig on the <|uestioii of tire insuninco before 1666, Wal- 
 i'ord points out that the law-books would generally reveal the 
 existence of contracts of this sort, for disputes will arise. But 
 while numerous i-ases in regard to individual marine underwriting 
 oc(Mir before this date, and some as to lilc insurance contracts, he 
 could not, after painstaking search, discover any such case in 
 regard to lire insunince. ()!i the whole then iu' feels C(»nipelli>(I to 
 regard the lu-licf in individual underwriting of tire risks in Greiit 
 Britain prior to lOtitlns extremely doubtful, and this opinion is coii- 
 iirined by u papi'r issued by the Friendly Society in 16S3, proposing 
 a new way t'or si-curing houses from loss by lire. in the first 
 
 I licllan. 10. •■' III, II til. 
 
m 
 
 HISTORY OF THE CONTRACT OF INSURANCE. 
 
 9 
 
 m 
 
 in 
 
 lit 
 
 Q 
 
 ','-?i' 
 
 
 1 
 
 t 
 
 .■ jS 
 
 
 ■,l. 
 
 
 
 11 
 
 i 
 
 
 'M 
 
 
 ,t> 
 
 I' 
 
 ■§. 
 
 
 f 
 
 t 
 
 '■| 
 
 (' 
 
 
 c 
 
 
 t 
 
 8 
 
 paragrapli of this paper reference is made to the late conflagration, 
 and it is distinctly stated therein that " those unfortunate persons 
 were without any relief.' 
 
 Beckmann, History of Inventions (Insurance), wrote in 17bl : 
 
 " A most useful imitation of marine insurance is the institution 
 of insurance offices to indemnify losses sustained by lire. So far 
 as I have been able to loam, companies for that purpose were lirst 
 formed towards the middle of last century, though houses were 
 insured by individuals much earlier." 
 
 Beckmann, in this statement speaks probably of Goriuany 
 only. 
 
 The system of lire insurance for buildings in PiUgland began 
 in 1667, that for goods at a later date.'^ 
 
 Kirkvvood says : Mutual fire insurance clubs, granting insur- 
 ances not exceeding £500 on a single risk, began to be formed the 
 year after the great fire and continued tor several years thereafter. 
 
 Walford, however, says that this is a delusion. He had 
 studied advertisements in the papers from that date to the reign ot 
 Queen Anne, and though several contribution offices were founded, 
 they all granted policies for particular sums, charged a premium, 
 and collected proportions of loss when a fire occurred.' 
 
 Oa. First project of fire insurance in England. — Dr. 
 
 Nicholas Barbon, sometimes erroneously called Barton, one of 
 the most enterprising and extraordinary men of his time, was 
 the first ijrojector of fire insurance \n Kngland, who l)rought 
 his sehenie to maturity. In IHUT he " set up " his office for insur- 
 ing houses and buildings ; it was his personal l)usiness, a mere 
 individual underwriting, as practised in rcgar<l to marine insur- 
 ance. In the year 1680 it merged into "The Kire Office," of which 
 he was the promoter and thus was founded the first joint-stock or 
 proprietory company for fire insurance in London, and probably, 
 in the world ; but it bad no special legal or corporate powers and 
 was regarded in the eye of the law as a mere juirtnersliip tratlini;' 
 with a joint-stock capital. In 1705 it assumed the name of IMu'iiix 
 Office, but the date wIumi it discontinued business is unknown, 
 The present I'hcenix Fire Office bad nothing to do with the cotii- 
 pany just referred to and was not founded until 178:2. 
 
 It was aliout the latti'r part ol the 17tli century that the 
 
 I Helton, 57. ^ Il>, Ih. 
 
 ' Stiillsl It'll! •luuniiil, St>|ili'iiil)i'r, 1S77, 
 
10 
 
 INSURANCE LAW OF CANADA. 
 
 pystom was established of each iiisuraTice ottice having a brigade to 
 look after its own interests and to extingnish iires. It provided its 
 men with liveries and badges.' 
 
 In Ui83 "The Friendly Society" for lire insurance on the 
 mutual plan was started. "Walford says that "before 1700 the 
 business was reiiorted to have merged into that of the Union of 
 1714, of which event, however, no trace can be found. There had 
 been a number of serious tires in Loudon in 1784-1780, and it is 
 possible that by reason of these its funds had become exhausted." - 
 
 Another mutual society, called "Amicable Contriliutors"' was 
 established in 1696. Al»out 1700 the name of " ILunl-in-Hand " 
 seems to have been applied to this office from its emblem, but 
 according to Rclton there is no evidence that the Amicable Con- 
 tributors adopted that name till about 1713 or 1714.' 
 
 In his History of Fire Insurance, Cyelo. iii., 4t!tt, Walford 
 says that in the " Post " of 24fh August, 1707, it is stated that it 
 was the practice of the Irish Poerh " to insure their robes," but that 
 it docs not api)car where or how tliis was mamvged. This notice, 
 howi'ver, eau only relate to insnraucc whilst in transit by sea 
 between Ireland and Englamh' 
 
 The Sun Fire Office was established in 1710, the Union in 
 1714 and the Westminster in 1717. The London Assurance and 
 the Royal Excliangi' were chartered for marine business in 1720, 
 and in the following year their charters were I'Xtcnded to rover 
 tire and life ass\irancc business also. 
 
 A large number of other companies wore foundi'd in the last 
 and current centuries in Great Uritain, but it wonld be imprac- 
 ticable in a wiU'k of this kind to refer to them in *>ven a siipcr- 
 ticial way. Fire insurance in (}reat Ihitain has assumed dimen- 
 sions so vast that the foregoing extracts and statements must 
 suffice for the iiur[ioscs of this treatise. 
 
 9b. United States. — In the United States, one authority 
 has it that the first insurance otHce in New England was estab- 
 lished at IJoston. in 1724.' 
 
 ir 
 
 inc, I'ommciiting on this, says' 
 
 'robal 
 
 »lv only an o 
 
 ffico 
 
 \'<)v individual underwriting; nofhing known." Ueltou' ad<ls to 
 this coH'uH'turo his o[tinion that it was for marine insurance. It is 
 
 more tluui likelv that he is right. 
 
 Uolton, ^Oot xi'i|. 
 
 ' 1(1, 57 
 
 ' h\.,;\. 
 
 ' Itl.,!l|. 
 
 \\U. Mii)X. iniil N'i>tt'H, (r Am,, IH.V, llnslim. 
 Ins, Ilhic Hook, Ni'w York, 1H77. ' p. 'S>'2 
 
HISTORY OF THE CONTHACX OF INSURANCK. 
 
 11 
 
 ■I 
 
 •' Tho Pliihulelphiii Coiitribiitionsliip for tlio Insurance of 
 Houses from Loss by Fire " was founded in 1752, and is supposed 
 to be the first tire insuraneo company in America, Benjamin 
 Franklin being the first director elected, although he had little to 
 do with the estaVdishment of the society.' 
 
 9c. Germany — According to Chaufton, fire insurance in 
 Germany has been traced back to the time of peace and reparation 
 which followed tho Thirty-years-war,- but, as stated, insurance of 
 l)uildings was practised long before that time by guilds or by tho 
 difierent states, jirovinccs or municipalities. In 1770 a stock com- 
 pany was started in Hamburg for the insurance of movables, and in 
 17Ht) the Phoenix of London oiiened up a branch office in Hamburg. ' 
 A large iiundier of companies have been established in the course 
 of this century, and English and Swiss companies also are d()ing a 
 considei-able business in that country. 
 
 9d. France. — Fire insurance in France began to be organized 
 at the time the revolution broke out. Apart from an unsuccessful 
 attempt in 17.'»4, two com]»anies wi'rc started in 1788, but they were 
 swept away by the convulsions to which their country was sub- 
 jected at tliat period. It was only with the Rrslanndioii. that fire 
 insurance was recalled to life, and a considerable number of com- 
 jianics were founded, many of which are still in existence. Incen- 
 diarism and fraudulent claims caused a crisis in 184.'), but in the 
 later and calmer times th(> companies recuperated themselves, and 
 anotlier series of new enterprises in fire insurance I'ommenced after 
 the war of 1870-71.' The business at present is very extensive 
 and as a whole is up(m a sound basis. 
 
 9e. Other countries. — Fire insurance has also made great 
 progress in Austria-Hungary, Switzerland and nearly all the otlnM- 
 I'onntrics of Europe. 
 
 10. Origin of life assurance and short sketch of same in 
 the principal countries — Tn 170(>. the TVishop of Oxfonl and 
 others formed in England the lirst life insurani'(> society, under the 
 name of the ,\niicable Society,"' But it was i\ot until 17(!.") tliat 
 
 ' Hi'ltdii, il.VJ !■! M'cj, rciiiciiniul Mci'liiiK of llio Pliiladelpliiii ('oiitriliulioiiHlilp, 
 
 isrc'. 
 
 - Stiiiniill, Diis Ciiiizc (li's \'orsiciii'niiiKswi'seiis, IH. 
 
 'Cliuiifton. i., i:u, i:ir>. * 111. I., 4l;t, ■I2l'. 
 I Aliiuzfl Asm., 1(1-', litiiiii (iriiii ct .lolyiil Niir I'Asm, 
 
12 
 
 INSURANCF LAW OF CANADA. 
 
 the first insurance company transacting lifo business only, and on a 
 scientific l)asi3, was established, the Equitable of England, although 
 two other companies, the Royal Exchange and the London Assur- 
 ance, doing marine and tire business, had prior to that date, in 
 1721, opened up their life branches.' The remarks made in the 
 preceding paragraph with regard to the extent of tire insurance in 
 Great Bri*^ain also apply to life insurance in that country. These 
 associations multiplied rapidly and the abuses which had caused 
 the contract of life insurance to be i>rohibited in every other coun- 
 try (with the exception of Naples and Florence) led in England to 
 the passing of the Gambling Act.- 
 
 10«v. U- . ^<tates. — Life assurance in the United States 
 commenci i ij; ocond half of the last century, but the tirst 
 
 attempts Woi\ in ;(, very crude shape and were rather mutual aid 
 societies for the widow.^ and orphans of clergymen than life assur- 
 ance companies ' tin • -ent sense of the terra. These did not 
 come into existence mill! the year 1812, when the I'einisylvania 
 Insurance Company was established.' 
 
 10b. Germany. — With regard to Germany, life assurance was 
 tirst attempted at Hamburg in 1806, but the Napoleonic wars of 
 that period brought the company to a premature end ; another 
 attempt in 1823 failed, and success was attained in 1827 only, wlien 
 the present "Gotha Lite Assurance Batik" was constituted.' 
 
 It is hardly necessary to say that both in the United States 
 and in Gernuuiy life assurance at the present time is transacted on 
 a very large scale. 
 
 10c. France. — The only life assurance company which was 
 launched in France in the last century, came to an untimely end 
 after a few year's existence, the decMve of 179H suppressing all 
 banking and life assurance institutions on the stock plan. 
 
 In 181!) life assurance was taken u^) agaii\, but it made very 
 little |irogress, and it was not until l8o'.» that public opinion 
 changed in its favor. Since then a large number of companies have 
 been estaltlishcd, ami thi'y transact a very considerable i)usiness.'' 
 
 ' Cliiviiftoii, i., 'M'l, M',\i\i\d Walforil Ins. Cyc, AiiiiuHblu Soo. iind Ins. Guidmtnd 
 lliinilliuok, 'M, etc. 
 
 - IJ (iec). in., c. IS, iukI see Walford U\». ('.v<'l()|), vo. (liiinlilinK ins. for intfr- 
 cHtihK (U'tails on this point. 
 
 ■■' Cliiiuflon, i., ;!7U und .m * II), I., :tH(t. ■ II), i., '.m :«(2. 
 
\m 
 
 HISTORY OF THE CONTRACT OF INSURANCE. 
 
 13 
 
 lOd. Other countries. — The development of life apsurance in 
 Austria-Hungary has been effected under great difficulties. The 
 reason is to be sought in the wars and political crisee which have 
 troubled that country for a long time, and have prevented a pru- 
 dent investment of the savings of the people. The first develop- 
 ments date from 1859 ; a feverish period of speculations and amal- 
 gamations was passed from 1872 to 1874, but now a state of calm- 
 ness and stability seems to have been reached, and the companies 
 of Austria-Hungary are in every respect the equals of those of 
 the neighboring i-ountries.' 
 
 The first life assurance company in Switzerland was founded 
 in 1841, on the mutual plan, but went into liquidation in 1855. 
 Another mutual society was promoted in 1857, and was followed 
 by the formation of three stock companies.^ 
 
 11. Accident insurance. -Great Britain — Accident insur- 
 ance in Great Britain, as understood to-day, dates from 1848, 
 and was much influenced by the building of the railways. Of 
 the 15 companies projected from 1845 to 1850, only two came to 
 be constituted, and they limited their operations to railway travel- 
 ling. Real accident insurance was introduced by a third com- 
 pany, the Accidental Death Insurance Company, in 1850, which 
 first, but unsuccessfully, appealed to the working and industrial 
 classes, and then met with better success from the merc-antile and 
 professional classes. The Employers' Liability Act of 7th Sept., 
 1880, gave a great impetus to accident insurance.'' 
 
 Ita. United States. — In the United States, accident insur- 
 ance was not known prior to 1847, in which j-^ear a company was 
 formed for that purpose ; it borrowed the statistics for the compu- 
 tation of its tariffs from an English source, as the tariffs of the 
 American mutual aid societies were entirely empiric, as it were, 
 and lowered or raised according to competition. Notwitlistanding 
 tliis scientific basis, however, the company was obliged to discon- 
 tinue in 1853, owing to the fniuds jiracfised on it by the assured, 
 often in collusion with unscrupulous physicians. Several other 
 fruitless efforts followed before accident ijisurance was successfully 
 launched in the United States.^ 
 
 ' Chnufton, i., 4(Kt. 
 
 " III, i., MYi ; Mux Wirth. AllKomeine BeKclireibunn uiid Statlstik der Sohwein, 
 Zurich, 1871, vol. i., 600; EhrenewclK, 231. 
 
 •' Wiilford, Ins. Cyclo., Accident insuriince. CluMifton, 1,, 407, 408. 
 * nine, tW, (M. ("hiiufton, i., iW. 
 
 II 
 
14 
 
 INSURANCE LAW OF CANADA. 
 
 lib. Germany. — Insurance against accidents while travelling 
 has long formed a branch of a number of life assurance companies 
 in Germany, but insurance against other accidents can be said to 
 have been called into existence by the Employers' Liability Law of 
 7th June, 1871, oi\ly, and it aoon reached considerable dimensions. 
 This law was the first enacted by any country to determine the 
 indemnity due on account of injuries or death while in the employ 
 of railway or mining companies, etc' 
 
 Accident insurance has undergone vital changes in Germany 
 during recent years. Although private companies are still in ex- 
 istence and operate on a large scale, their ])rovince has been greatly 
 curtailed since the introduction of compulsory insurance of all and 
 every person employed in any kind of manual labor. This insur- 
 ance, for which an intricate machinery throughout the I'mpire has 
 been jiut into ojieration, is entirely in the hands of the government 
 and an elaborate classitication oi' the ditterent grades oi' risks has 
 been compiled. In this system of compulsory provision for cases 
 of accident the employer and employee pay each one half the pre» 
 mium, the empl(»yer advances the [iremium and deducts the share 
 of the employee from his weekly wages. Payment of the premium 
 has been simpliiied })y the use of stamps, similar to postage stamps, 
 which to the amount necessary in each case are pasted in a book 
 bearing the name of the assured. 
 
 lie. France. — Pricn' to 1870 only one company transacted 
 accident insurance business in France. Since 1874. however, a 
 great number of companies have been started in that line, and fear 
 is expressed that there are too many in the tield to-day.'' 
 
 lid. Other countries. — Insurance against iict-ident has also 
 made some progress in other countries ot Europe, but. with the 
 exception of one company in Switzerland and one in iVlgium, it 
 cannot be compared with the transactions in the countries referred 
 to above. 
 
 12. Agrioultaral insurance. Hailstorm. Live stock. ~ 
 
 Agricultural insurance, that is, indemnity for dannige done to crops 
 by hailstorms or the mortality of live stock, is in its infancy yet. 
 In nearly every country, small nnitual associations have lieeii 
 formed,' but joint stock comiianies have hitherto taken up this 
 branch of insurance to but a limited extent. The devastations of 
 
 C'lmuftoii, L, til!», .'i(Ki, 
 
 ■' II), i., lot. 
 
 lb, i., 4tis. 
 
HISTOKY 01" TUE COXTRAOT OF INSURANCE. 
 
 16 
 
 hailstornirt |io('uliar to certain parts of some countries, and the frauds 
 to wliicli tlic insurani-e of live stock easily lends itself, liavo made 
 the business little protitahK', and have kept back capital from 
 brandiini'- out in that direction as in the other fields of insurance. 
 Germany was the tirst to institute hailstorm insurance ; a 
 mutual society having been started there in 171>7 and it still exists.' 
 
 13. Division into three general groups — It would seem 
 that legislative enactments regulating insurance contracts may 
 be divided into three general groups, namely those wliich liave 
 their source or wliiih have arisen under the influence of tlie French, 
 or the German, or tlie Englisli laws respectively. The fact tliat 
 these three have mutually intiuenced each other docs not make 
 ayainst tlie truth of the proposition. French hiw undoubtedly 
 impressed itself on all the European countries in tlie I7th, iStli, 
 and the beginning of the present century. English law liad great 
 influence u]ion German law countries during a part of this century, 
 and in its turn (Jcrman law now exercises an influence uiion the 
 Frencli law cduntrii's.'- 
 
 In treating of the history ot insurance law in foreign I'oun- 
 tries, we shall for the most i>art stop at the beginning of the [irc- 
 sent decade. A more exhaustive treatment, though interesting, 
 would be beyond our province. 
 
 14. Countries regulated by English law. Great Britain. - 
 
 To treat tirst of the countries which may lie said generally to be 
 regulated by English law ; in Great Britain itself the contract of 
 insurance is regulated chiefly by the common law. The principal 
 statutory enactments are the Gamliling Act,' an Act passed in 
 18t)7 ' authorizing the transferee of a life policy to sue in his own 
 name; an Act passed in 1870 ' granting rights to married women 
 ill life insurance ; and certain acts destined to prevent flres or faci- 
 litate their extim-tion.'' The laws atk'cting corporate bodies gene- 
 rally, also artect insurance companies in Great Britain. 
 
 14a. Canada. — In Canada wi' have in (Quebec the enactments 
 oi'the Civil (!ode drawn from the French Code de Commerce niodi- 
 iied by the English common law. In the other provinces \\v havt; 
 the English common law as moditied by provincial legislation. 
 
 ' C'luiuftoii, 171, 1111(1 sw Index us to Miinilobii, infra, 
 
 •' 11 liiM). III., c. 18. ^ ;10-;U Vli'., c. Ill 
 
 ^ ;i;t;j| Vic. c. m. <' Unnyon Fin- Iii».. i"). 
 
 "CImufton ii., Ul. 
 
 I 
 
16 
 
 INSURANCE LAW OF CANADA. 
 
 14b. United States — In the United States also the common 
 law is the basis of commercial law, Eacli state, however, has its 
 own legislative enactments. 
 
 15. Countries regulated by French law.- France. — The law 
 
 in France itself, apart from the dispositions of the Code de Com- 
 merce dealing with maritime insurance,' contains few texts dealing 
 specially and exclusively with insurance. There is but one in the 
 Code Napoleon,- which places it among aleatory contracts. Tax 
 laws, however, relating to insurance are numerous.' It is interest- 
 ing to read the projects of law drafted in France to regulate by 
 legislation the relation of insurer and insured. They throw light 
 upon recent enactments in other countries.* 
 
 15a. Belgium. — In Belgium, in 1874, the Code de Com- 
 merce, passed in 1808 and based upon the French Code of 1807, 
 was supplemented by a law upon insurance which provides fully 
 for all branches of the subject.' 
 
 15b. Netherlands — In tlie Netherlands insurance is regu- 
 lated by the Wetboek van Koophandel of 1838.'"' 
 
 16c. Italy — In Italy insurance was regulated from 1866 to 
 1883, by title VII J. of Book II. of the Codice di Commercio 
 del Regno d'ltalia, founded upon the French Code de Commerce.' 
 The new Italian Code of Commerce came ijito force in January, 
 1883. It treats fully of life, fire and other insurance.'* 
 
 15d. Spain — In Spain insurance is regulated by the Code 
 of Commerce of 1829, which practically reproduces the provisions 
 of the French Code,® but it is silent as to fire and life insuranc(.. 
 
 16e. Portugal — Portugal has in its Code of Commerce 
 dealt more completely with insurance than has the Spanish Code.'" 
 
 it 
 
 ' Tit. 9, 10, 11, 13 and 14, div. ii. 
 
 2 Art. 16W, and see C. Com., art. 37, lol du 24 julllet, 1867. Decrel du 22 .Jan., 18«S. 
 
 ' Loi du 28 avril, 1816, art. 61 ; 16 Juin, 1824, art. 5 ; 5 Juin, 1860, art8. %, 48 ; 23 aout, 
 1871, arts. 6-10. Decret du 25 Nov., 1871. 
 
 ^Chaufton, ii., 5. Griin et Jolyat, Journal des Ash., v. Dubroca, Rev. des 
 Ass., ii. et iii. Lehlr, Journal de I'assureur et de I'assur^, iv. et vi. 
 
 " See the report of tlie Ciianiber of Representatives, by Van Humbeeck, Docu 
 ments Parlcmentaires, 1872-1873, p. 23, and 1860-1870, p. 126 ; and sec Namur's Code 
 de Commerce Beige revis^, iii., pp. 1-116. 
 
 « Chaufton ii., 44. ' Id., 46. " Italian Code of Commerce, arts. 417 453. 
 
 ° Anthoine de Saint-Joseph's Concordance entre le Code de Commerce Fran^i.s 
 et les Codes de Commerce etrangers, i., 1-128, and see Goldschmidt, Handbuch, 
 237. See also Acts of 1857, 1862, 1806, 1860 and 1870. 
 
 '" Portugese Code of 1833 ; arts. 16721812. 
 
HISTORY OF THE CONTRACT OF INSURANCE. 
 
 17 
 
 Its provisions on iire and lite insuriuuu; are taken troni the Code of 
 Holland.' 
 
 15f. Greece and Roumanian provinces — Greece regulates 
 the contract under its Code of Commerce of 1835, which is an 
 exact rejiroduction of the French Code ot Commerce.^ In the 
 Roumanian provinces insurance is regulated hy the Code of Com- 
 merce of 1840, which reproduces almost without modification the 
 dispositions of the iirst three hooks of the French Code of Com- 
 m erce. ' 
 
 16g. Turkey and Egypt — Turkey by its Code of Com- 
 merce of 1864, provides for marine insurance. Its provisions are 
 chiefly inspired by the French cede, but it has borrowed from the 
 Italian and Holland codes also, and from tlie Prussian Landrecht.* 
 In Egypt the Turkish Code of Ma.itimc Commerce is in force.' 
 
 15h. Chili — ^^In Chili we find complete and carefully com- 
 piled j)rovisions regulating insurance, and contained in the Chilian 
 Code of Commerce of 1867. This code has been much admired, 
 and has been pronounced by Mr, Goldschmidt to be " eines der 
 durchdachtesten und anregendsten Gesetzblicher" (one of the l)yst 
 digested and most suggestive of codes), no light praise from such 
 a critic for the legislators of this South American Republic.'' 
 
 15i- Argentine Republic — In the Argentine Republic the 
 Code of Commerce of 1859-1862, less complete than the Chilian 
 Code, treats of fire and life and other insurance.^ This code 
 follows the plan of the Spanish Code, but borrows most of its 
 dispositions from the Portugese Code. On some points, however, 
 they have abandoned their model and In'ought their work well u[i 
 to the later spirit ot progress. 
 
 15j. IJruguay and Paraguay — In Truguay the Code of 
 Commerce of 1866 regulates the contract. It is merely a revised 
 copy of the Argentine Code (more properly the code of Buenos- 
 Ayres) with this difference, that in the Argentine Republic the 
 
 241». 
 
 ' Mitlo.si sur les sources de Iti It'j^islatiim portugaise, 1S75. KiS. 
 
 '■^ Anthoiiie (ie Saiiit-.lo.seph, op. cit. ii,, H()4 and hc(i. ; G.ildsclimidt, HuiuIIiihIi, 
 
 ■' Anthoine di' Saint-loscpli, op. cit. ii., KKMO.j ; Goid.sehn)idt, Uandbiicli, ^.'il. 
 
 * (ioldHcliinidt, llatidl)uch, 2.5.") ; Cliaufcon, ii., 71. 
 
 '' {'lOldHfliinidt, Haiulhucli, 2m. « II), mi 
 
 ' Mitrerinaier, Zuilsclirift fiir Haiuie\Hrecht,, vi,!,.U«-Hl. 4S5.507. . 
 
 Ii 
 
"if"' 
 
 18 
 
 INSURANCE LAW OF CANADA. 
 
 policy is iiecossaiy to the pertoction oK the coiitniet ; and it is not 
 BO in Uruguay.' In Taniguay the Argentine Code wa3 a(U>i>teJ 
 in 1870.- 
 
 15k. Brazil, Mexico, Salvador, Nicaragua, Costa Rica. 
 New Grenada, Venezuela, Peru, Bolivia, Hayti, San Domingo. 
 Guatemala and Honduras — lu Brazil the Codigo commercial do 
 iraperio do Brasil ot 1850 regulates insuranee, an(^ in the following 
 countries the Spanish Code of Commerce has heen reproduced : — 
 Mexico in 1854; Salvador, 1855; Nicaragua, 1869; Costa Riea, 
 1850 ; New Grenada, 1853 ; Venezuela, 1862 ; Peru, 1853 ; Bolivia, 
 1834. In Ilayti a code is in force which is a rc[>rodu('tion ot the 
 French Code, and was promulgated in 1826; and at San Domingo 
 the French Code is in force. Lastly, in Guatemala and Honduras 
 the ordonnance of Bilhao is still in force. This ordonnance was 
 la?t revised under Philip V. in 1737.' 
 
 16- Countries under German law-— Germany — To treat 
 now of those countries in which the insurance law has its source 
 in the German law, we find that in the German Empire itself 
 the Code of Commerce ot 1865 provides for maritime insur- 
 ance only. The Prussian Code served as a hasis for this work ; 
 outside of this the compilers drew u[)on the French code, the Code 
 of Holland of 1838 and tlie Spanish Code of 1829.' Side hy side 
 with this general law we find in each German State more or less 
 insurance h>gislation, a license (Concession) from the Government 
 being required to prevent as much as possible the establishment of 
 bogus concerns ; for tliis reason some States, Saxony for instance, 
 do not admit a company from another German State uidess it has 
 given proof of its stability by having been successfully in existence 
 in its native State for two or more years. No deposit, liowcver, as 
 in Canada and the United States is required. 
 
 ISa. Pmssia. — In Prussia the dispositions regulating fire 
 and life insurance are very incomplete. In so far as regards life 
 insurance, this is due to the fact that the AUgemeinea Landrecht 
 was promulgated under Frederick William II. in 1794, and that 
 life insurance took root on the continent in 1806 only, at Hamburg. 
 As to tire insurance the AUgemeines Landrecht could deal only 
 
 > Goldschmidt, Handbucb, 288. * 
 
 2 See the Journal of Private International Law, 1876, p. 178. 
 
 » See Golditchmidt, Handbucli, 41 ; Cliaufton, ii., 115. 
 
 * See Makower— Das allgeniein» deutochc Handclsgesetzbuch, Intro., 11 and 12. 
 
HISTORY OF THE CONTllACT OF IXSVRANCE. 
 
 19 
 
 witli iiisuraiiee on mercliaiuliriu ami other movable proi>erty. WIkmi 
 it was drawn 141. insurance on real estate was, and in some [daces 
 still is, the exclnsive i)rovinee of public insurance companies ((U't- 
 fentliflio Fe!ier-Soeietieten), and tlie legislator left this brauidi of 
 iiisiiranee to be dealt witli by the rules of these eomiianies. Tn 
 Berlin, for instance, every building, as soon as completed, must be 
 insured with the Mnuieipal Fire Insurance Society, private eom- 
 jniuics being allowed to cover the risk while the building is in 
 course of construction only. On the other hand, insuranci; on 
 movabk' or personal effects began from 1820 or 1830 only to 
 develop to any extent. The law of 1837 was the chief of these 
 developments and its main object was to lessen the temptation to 
 inceudiiirism by i)reventing the over-insurance of movable ettei-ts 
 (Uelierversicherung). In 1877, the rules of the Feuer-Socictieten, 
 wdiich had proved so (d)noxious and provoked so much conflict of 
 jurisdiction were abrogated.' The control now exercised by the 
 State in Prussia over fire insurance companies is regulated by their 
 charters and by the general law of ISaS. A rule of 1824 inter- 
 dieted agents from soliciting insurance outside of their own 
 residences, and this emictment was definitely abrogated in 1807. 
 The law of 1869 regulates generally the relation between the State 
 and the companies and that of 1866 imposes a govcrnnfient tax on 
 l>olicies graded in proportion to the ammmt of the premium. A 
 similar tax is imposed in France." 
 
 16b. Other German States — In the different States forming 
 part of the German Empire, we find, as a rule, as to fire insurance, 
 a legislation less complete, but presenting the same characteristics 
 as that of Prussia. In nearly all there are public insurance socie- 
 ties ; in certain of the smaller States it is the Feuer-Societiet of a 
 neighboring State which covers the ground. All these Feuer- 
 Societoeten have their special regulations, which vary from State 
 to State, as in Prussia they vary from province to province.' As 
 in France, so in Germany, the efforts to enact a uniform legisla- 
 tion are interesting to the student of the history of insurance. 
 
 160- Switserland. — In Switzerland we find in the different 
 legislations of the 22 cantons two strongly marked currents ot 
 influence. The French cantons have imitated or adopted the 
 French legislation ; the German cantons, the German legislation, 
 
 >Chaufton, il.,159. »Ib, il.,160. Ub, ii., 100. 
 
 Hi 
 
 hi 
 
^ 
 
 mmmmimm 
 
 20 
 
 INSURANCE LAW OF CANADA. 
 
 and particularly the Austrian legislation.' Two cantons, the 
 French one of Geneva and the German one of ZUricli, have more 
 complete legislation on insurance than the others. The Geneva 
 legislation, regulating the position of the hypothecary creditor 
 towards his debtor and the insurer in tire insurance, is interesting, 
 and will he referred to more fully later.'- 
 
 16d. Austria-Hungary — In the division of Cisleithanien part 
 of the German Code of Commerce was adopted in 1862. In the 
 division of Transleithanien insurance is regulated by the Hungarian 
 Code of Commerce of 1875.'' 
 
 16e. Russia, Sweden, Norway and Denmark — In Russia, 
 the insurance legislation is mainly contained in the Code of Com- 
 merce of 1857.' 
 
 In Sweden, the principal insurance legislation is that of 18(14. 
 The s\ stem of state insurance of real estate is in force there, as in 
 the rest of the Scandinavian jjeninsula. 
 
 Ill Norway, the principal text on insurance is the Norske Lov 
 ol l^i(i7 ; and in Deniuiirk, Chapter of Book IV. of the Danske 
 Lov of 1083.'' 
 
 Hioldsfliniidt, llandliiuli, 'J:il et t<i'(|. ".Sec iiidi'x lor S Infra. 
 ■■'Sec foi' tliortf divisions Aiinuiiirc du lt'p;isliitioii (HrunK<'ro, 1S7.">, '£il, 
 ^Clmufton, ii., li.'M. Anttioini! de Saint .?onciiIi, MIU. .1. von Sclinit/, Uiga and 
 lA'ip/iK. 
 
 ' I'ardessiis, IoIh iiiarit'nifs, iii., cli. IS, lidAIMIS. (.Miauflon, ii., 2.>t. 
 
CITArTER II. 
 
 
 TirR XATURK OK THE CONTUAC 
 
 OF INSl 
 
 T AND THE DIP't'ERKNT KINDS 
 rUAM'K. 
 
 17. Eaiu.v \viui'i:i£s on thk ^os■ 
 Til Air. 
 
 IS, CilNlliACI' rNKNOWN TO HOMAN 
 LAW ; IIS (11 AKA( rKUISIH s Aui: SIM;- 
 I lAI.. 
 
 111. A ( ONDII'lONAI, AN1> AI.KATOUY 
 l'ONTIIA( r. 
 
 20. I.NSUIlANCi: IN'CKNKIIAI, IS A CON- 
 rUMT Ol' INIIK.MNITV — l.ll'h; ASSl'U- 
 
 AM !•: IS Nor. 
 L'l. I 'si: OK ri:iiM,s " AssriiANri': " 
 
 AND " INSIIUANIK." 
 
 2'.!. CoNTllAI 1' IS CONSIINSIiAl, AND 
 im.ATIlKAI.. 
 
 '£i. SlDI'M l)|- I'llll; INSUIlANli: -IN- 
 srUANCK A <()M\li:iiCIAl, fONIKAl r, 
 lIXlKl'l- Mirrl'AI, INSUKANCK rltOMAllh: 
 AND IIKNT INSUHAN( K— IIUCHNI' AMK- 
 nil AN KlU ISION ON INSI'llANlK OK 
 
 iiiiNr VAi.iri: oi' amkhk an iioldiniis 
 
 AS AIM'I.IKD TO CANADIAN lAsUS — 
 
 m:asi;iioi,ii i'ui.k ii:s. 
 
 L'l. HlOINSTATKMUNI' — INS|iu|.;d I'lN 
 
 rni.i;!) I'o an i;xim;|(I'Isi.:. 
 2i). Si oi'K OK i.iKi; assi'I!AN(i;--i'on- 
 
 I INK AND SKMI-TllNTINI'; .loINT I, IV US 
 - ANNI ri'IKS — ANMIIV AI'I'OUI'ION- 
 MIINI' ANNI ITV ll'ND I'OU WIDOWS, 
 
 i/ir.. Ol' i;o\i;i!nmi:n r kmim.oviikh, 
 AT I iioiii/i:i) iiv iio\ miinmmnt ukihtm 
 
 OK S1|'.S< KIIIKHS INDISIltl Al, INSI'K- 
 
 A.NCH Dl;Arll WITHIN (liHIAIN I'lMK 
 
 — NoN-KOUKi;ircui; I'oi.ii y — insik 
 ANCi; AiJAiNsr Tin; iiiKi'ii ok isstk 
 
 CONTHACrs OK INSIHANiK lOM- 
 I'ANIKS AND HI.N1:K1(IAI. SOI IK r IKS 
 DIsriNlilTISIIKI) — CONI'HAl I's OK MK 
 THAI. ItKNlM'IT INSfl! A NlK SO(ll;TI Ks-- 
 ASSKSSMK.NT INSI'UAN<i: I'NDKIt AS- 
 SKSSMKNT I'l.AN I'lillMlIM > ANNor llh; 
 KIXKD IIKKOUKII AND. 
 
 2(1. Till KNsi:s i(i:i^riiti;D hxkmi'- 
 
 IIONS UNDKIl SUCTION l:i Ol' INS. ACT 
 
 OK I'ANADA socii;i'li:s i;i:i;isii;uKD 
 rNDKii si:( TioN :!S mav makk i>!:i'o- 
 sri's. 
 
 27. AcciDKNi' iNsrnANi i; - dki ini- 
 
 ■IIONS OK ACiIDI;NI— WItAI' Tin; IKIIM 
 "ACl IDKNt" INll.I'DKS KX l'< ISItll K I'O 
 
 DANuKit i;mi'|.oyi:hs' i.iAitii.nY in- 
 
 SUHANCK i;i,i;VAI'OI( ACIIDKN I — I'AUK- 
 I.KSSNKSS Ol' K.MI'I.OYKi; — KMIM.OYKIt 
 NOI' I.IAIll.K. 
 
 2S. Hriilil.AliY INslDANti:. 
 
 2!>. N'Alllors Ol'lll.l! INsl'ltANCKS — 
 DKKIM'I'ION OK I'l A ri: (il, \sS INsl'l! 
 ANCK NKCI.ICKNi ]•: IN IIKI'I.AClNC 
 (U.ASS. 
 
 :10. l''lDl;i.ll'\ INSl'KANCK. 
 
 :il. 'I'li'i.K iNsniANci: indi:u I'knn 
 s^ i.\ AM A s'i'ATi' ri;. 
 
 17. Early writers on the contract. — The oiirly w r'ltcrs 
 upMii iiiHiiranci' (lisouHs its jn'c.iiliiir luitiu'i! at Iriio-fli, With tlnMii 
 iiisiiraiiiv is now tnoliim pacfum and now eonli'dcfus iiiDonn'nu/iis, 
 now a wagt-r and now a rtti[mIation, ii soi'urily, ii salt", a Icttiiii,^ to 
 liirc, u purtnorshiii, a mandate!, and tho like, and they iilunn'c into 
 
22 
 
 INSURANCE LAW OF CANADA. 
 
 f I 
 
 tho tlioory of tlie Romiui law upon the sulijeot ot' tliese several 
 paL'tt^.' 
 
 18. Contract unknown to Roman law ; its characteristics 
 are special. — As vve have seen, however,Hlie contract ot iiifiur- 
 aneo was unkiiowii to tlie Roman law. While governed in the 
 main by principles of law similar to those which regulate other 
 contracts, it is in some respects a peculiar contract, distinguislied 
 by special characteristics, and requiring for its proper elucidatioTi 
 to 1)6 interpreted in the light of the circumstances in the midst 
 of which it has grow;: up, and with a just appreciation of the 
 purposes which it is designed to eifect.'' 
 
 19. A conditional and aleatory contract It is a condi- 
 tional contract, for, as we shall sec, when no risk attaches, no 
 premiimi is to be paid, aiul if paid, it must, in the absence of fraud, 
 be returned to the assured ; * for the existence, either real or 
 imaginary, of a risk is the fimdamental condition of an insur- 
 iinco contract, without which it would have no object. The 
 French writers term the contract aleatory, from alea, a die or throw 
 of the dice, a word for which our adjectives " gaming " and 
 " hazardous " are not exact equivalojits, the word meaning hero a 
 speculative contract or contract of chance. They tlistinguish it 
 from a commutative contract in which the thing given or act doiie 
 by one party is regarded as the exact equivalent of the money 
 paid or act done by the other.'' Ihit Blackstone docs not seem to 
 accept this view." According to Griswold " the insurai)ce contract 
 is said to be an "aleatory'' one, since the consideration paid is 
 not the price of the thing which the insurer gives, but of a risk 
 tbiit be agrees to assume. 
 
 The word "aleatory" cannot, of course, be taken literally, 
 in its original meaning, as, although in a sense based on the 
 elemi'iit ol' chance, nuxlern insurance in nearly all its branches, has 
 developed into a science. Insurers luive learned in the course of 
 ]iractical experience, that the law of average governs even those 
 events wliich at first apiteared to be subji'i't to no rule, and 
 
 ' May, I, is ;t. " S\ii»rii, «i L'. 
 
 I PotliliT Triiiti- tics Ass., H7 ; Kincrinoii, do., i-. i., S 2. 
 
 * May i), S I ; Almizul. iIcm Ass., 17(t ; I'.ithior dm Ass., I ; IVirdes sus I)rt. ("oin., 
 niKI. :i ; -J. Miirslmll, tUlll, mid sci- Index for S Infru. 
 
 •'' Vide iioKi'oii Codi'dc Coin,, K.\. 'I'll,, x., iIi'h Ash. Int. " Vidf Infni, S -'". 
 ^ AKPntM 'I'l'xt Monk, :i^. 
 
NATURE OF CONTRACT — UIFFERENT KINDS OF INSURANCE. 
 
 23 
 
 l)y operating on a large scale, as well as by wise restrictions and 
 adequate rates of premiums, they have succeeded in equalising the 
 ctteet of any periodical calamity, such as an epidemic or conflagra- 
 tion, and have thus eliminated the disastrous character from the 
 " element of chance," which naturally attaches to the events the 
 consequences of which the contract covers or guards against. 
 
 20. Insurance in greneral is a contract of indemnity— Life 
 
 assurance is not — Insurance is a contract whereby one party 
 called the insurer or underwriter, undertakes for a valuable con- 
 sideration, to indemnify the other, called the insured, or his repre- 
 sentatives, against loss or liability from certain risks or [terils to 
 which the object of the insurance may be exposed, or from the 
 happening of a <'ertain event.' 
 
 It is also detincd as a contract by which one party undertakes 
 to pay a certain amount of money in the event of certain casuali- 
 ties ; that is, one biiuls himself to pay a certain .amount which is 
 tixed, and the other binds himself to pay an amount if such and 
 such an event should happen. - 
 
 This definition evidently refers to stock companies only. The 
 best definition of the contrai't is said to be given by Blackstone ; 
 A polii'y of insurance is a contract betwecMi A and B, that uiion 
 A paying a iiremium accepted as eciuivalcnt to the risk, B will 
 indemnify against a particular event.' 
 
 (Iriswold's ' definition of fire insurance is as follow^ : — A 
 contract Ity which, for a consideration, one i>arty agrees to 
 make a payment of money, or its equivalent, to another party, 
 upon the luqipening of an injui'v to, or tlestrnction by the [icril 
 insured against of something tangible and having a money \ altie, 
 named and located in the policy, whiidi is the evidene*' of such 
 contract, and in which the second party had an insurable interest 
 at the time of tlic insurance and at the time of tlie happening of 
 such injury or loss thereto, if not voided by some breach of cundi- 
 tion meanwhile. 
 
 Insurance is strictly a personal contract, and not an ins<iranco 
 il' tlie iiropcrty named, which oidy forms the subject ol' tlic in- 
 denuiity, and cannot be insured. 
 
 ' r. r. T,. ('.. im. Polli. Ass.. •> ; l Hi'll, ("om,, n. rk'tl, |». m)\ I Km. -Jt: -1 \\u Tiss ; 
 :i III.. 11. 7.".tl: 1 Aim. 1, ii 1 : :t Kl.. Syl: 1 Ainu. ii. liw; 1 I'd., s. I, p. 1: Mnrsh. p. 1. 
 
 '.IiuIkc Dii^iis inlirosc v. Wontl, .Mnnlrciil, .liiiic lllli, ISll,"i, coiitlnncil In {). H., 
 Willi .'Ic, .1., :«)ili .Miirch. Ihihi, vide Infra, S -^. 
 
 " 2 l)liickHlnm>'M Coiiiii)., 45H, * Oiiswoid, itiX 
 
24 
 
 INSURANCE LAW OF CANADA. 
 
 It irt tlio owner of the property who is insured or guarantood 
 against loss upon such property to the amount named in the policy. 
 
 rhilli[)rt defines the contract of insurance as one wherein', for 
 a stipulated consideration, one party undertakes to indemnify the 
 other against damage or loss on a certain suhject l)\- certain perils.' 
 This definition regards the contract as one of indemnity only, and 
 in the United States text writers and judges .alike regard all 
 insurance contracts (including life) as contracts of indemnity. 
 Ill their view, insurance upon a ship or a house at a fixed valua- 
 tion and at an annual premium until one is lost or the other is 
 hiinu'd, is in no way difierent in prineii»le from the insurance 
 of a life at a fixed valuation and at an annual premium until 
 death. In the one case the insurance is against the loss of 
 ca[iiral which [»ro(hices income; in tJie other it is against the 
 loss lit' faculties wiiich produce income, ■ Fire insurance is protec- 
 tion against loss hy fire, and it is hased on the productiveness of 
 the propi'rty insiiri'd, jircsi'iit or prospective, and the possihility of 
 its destruction l)y fire, liife insurance is protection against finan- 
 I'ial loss hy death, and it is hascd upon the productiveness of the 
 piTSMii insured, present or [trospcctive, and the absolute certainty 
 thai he will die.' ( )ui' C^anadian courts follow the law (d' Enghind 
 where life insurance forms a iilass ajiart from other insurance cnn- 
 
 traet,- 
 
 woiild si'em. howi 
 
 ver, that the difference is not in tin 
 
 results, hut rather in tiu' view oi' the principles on which tiie results 
 are ha^ed. Kirc, accident and other policies in general insure 
 against ihe conseipu'nces ol' s(unetiiing which dkh/ (leeiir. liife 
 |»olicics assure against the eonseiiuenees of siuiiethiiig which is.v,7/'(; 
 
 to occur — the (late on 
 
 Iv ! 
 
 leinu' doiiht fiil 
 
 21. Use of terms " assurance " and "insurance." — '' A 
 
 aiic 
 
 ami 
 
 insurance 
 
 have long iicen 
 
 used 
 
 ssiir- 
 as synon^'mons 
 
 tei'ins. Keeently, however, "assurance" has heeii used in Kiighnid 
 iji relation to life eoiiiiiigencies, and "insurance'" in relation to 
 other I'oiitingeiK ies. As siud al)ove. contracts of life insiirame 
 
 in Knu'land are not contracts of indenuiitv, thev are 
 
 ontri 
 
 to [lay a specified sum in a certain event."' The leading Faiglish 
 ca>e is Dallii/ v. Tht' Imllii a- Lomliiii Ufa Assnratn'i'. ('".,'' in 
 
 I .-. K,l„ I. 
 
 I. .Mitv, 
 
 «.!>. 
 
 ' ComiiKinwciillli V. \Vinlu'H»'i', 1(15 Miis.s., at p. liHt. 
 
 ' Sc(? reiniii'ks of lltirtoii, .).. in very roi'isiit cam' oC Mamiriic Life liis. i' 
 
 (ionloii. 20 A. I{. {OnU, :m, infm 
 •Siiiilli Mnc. I,a\v. Id I'M., :ilil. 
 
 l."> C. 1)., :tti,-) 
 
NATLUE OF CONTRACT — DIFFEUENT KINDS OF INSURANCE. 
 
 l:.j 
 
 which the (IcKtriiio hi'ul (h)\vii in Godsall v. lioMero,^ tliat insur- 
 ance beiiia: a coutrai-t of indeiunity, tho insiirod couhl found no 
 claim upon his policy if the debt or other interest in respect of 
 which he made it were satisfied aliunde, was overruled, and it was 
 decided that a life policy hotli in form and effect is an aI)solute 
 eontract to pay a certain sum in the case of death. In 1880 the 
 justices in a[»peal in England held in the case o\' JJarreH v. Tihhitl.s, 
 that the contract of fire insurance as that of marine insurance is a 
 contract of indenmity, and that the insured could not <jet paid 
 twice over.- 
 
 22. Contract is oonsensnal and bilateral. — The contract 
 is consensual and bilateral. If piiyment of the premium is ailmit- 
 ted in the jxtlicy the contract has been saiil to be unilati'ral.' 
 But this is inexact for, though the premium is jiaid, the assured 
 has obligations which make the contract viewed in its entirety coii- 
 diti(Mud and l»ilateral. Fire insurance policies in Franc*' ami other 
 continental countries are geiu'rally for a term of years, for aniunil 
 premiums promised, and with til'teen <lays of grace to pay each 
 instalment ot' (iremiuni, and all premiums arc payable at the ofHce 
 of the company. Tlu' policies are bilateral contracts, and in France 
 must be made in duplicate, signed by both parties, at least where 
 premium is not paid in cash.' In <ini'i)(>c, policies in duiilit'ate are 
 not usual nor rc<piireil, and the C^ivil Code"' points to signature 
 by (he insurer only. 
 
 23. Scope of fire insurance — In <)ncbcc the C'ivil Code 
 foi'mally enai'ts, and a> a general principle it may lie stated, that 
 insurance may be made against all losses by inevitable accident, 
 or irresistible force or by events over which tiie insured has no 
 control ; subject to thegeiicral v\\\v< relating to illegal and immoral 
 contracts.'' 
 
 23a. Insurance a commercial contract, except mutual in- 
 surance. General remarks on the contract of firo insurance. 
 
 Insurances other than marine are not by their nature commer- 
 cial, but are so wlu'ii carried on by insuran c companies" or 
 
 ' !l Kilsl. 72. ■' .". g. II. I) , ."iliO. ■■■ DIctiiiimilV il.'s Ass. T.'l-.. .ViS. 
 
 ' Mouliiv-I'niy, ilr. iimr. iiml oIIum' luillioi'll ii's riled in Sirc.v & (iillii'i I, cdiIi'm 
 
 iimutu-H, c, N. y.vi:\ s."i. ' f. ('. I,, c, iVidii. 
 
 "C. (". !,.('. :il7il: •.' 1*iivi1.-.mih, ,-.lll ; Mni'Himll I'lvl. ilisc.,1; I'liillips, l.-.V. c. Iii; 
 ('. UKIS; .Vliiuzi't .\ss.. c. !», pp. -JlHIcI Mcq. 
 
 ■(". ('. I.. I'. 217(1; •.' I'linlcssus, ii. ."iss, pp. ||:| ,.| mm|, ; t Dullnz Dk'l. N'o. 
 Asm, 'IVr,, Nos, 111, 20, 22 ; .SmUli v. Irvine, 1 U. di- I,,, 17, 
 
26 
 
 INSURANCE LAW OF CANADA. 
 
 other parties as a business. Mutual iiisurauec, however, wliicli; 
 is governed by tspeeial statutes is not eonimercial,' thoiiii-li a 
 mutual insurance company may make a commercial contract.'- 
 It would seem, however, that this distinction is maiidy o\' 
 importance in Quebec, and where the rules of evidence ditlor in 
 commercial and non-commercial cases. The rule laid down with 
 regard to the commercial character of the different kinds ot insur- 
 ance in the Civil Code of Quebec, is adopted from the Code de 
 Commerce, Art. 633, and the authorities under the French law. 
 Tlie commissioners who drew up the Civil Code of Quebec remark 
 that, while the contract is almost always commei'cial on the part of 
 the insurer, it depends on circumstances left to the discretion of 
 the courts whether it is so or not on the part of the insured.' 
 Carrying on the business of ordinary tire insurance is considered 
 trading in the Province of Quebec' 
 
 As we have seen, tire insurance is a contract of indemnity 
 intended to protect the insured against the pecuniary loss caused 
 by fire impairing or destroying proi)erty specified in the policy. 
 It is not intended to result in a profit to the insured, but 
 merel}' to reimburse him for actual damage sustained. The pre- 
 mium, in consideration of which the insurance is undertaken, 
 bears a certain proportion to the amount and risk invdlvcd. 
 P^'ire insurance is carried oi\ as a commercial enterprise by Joint 
 stock companies; with these the iiolicics are issued at a fixed 
 premium wliich remains luichanged during the whole term of the 
 contract, or by mutiud societies, where the amount of the premium 
 may be hicreased, and chief!}' depends upon the amount disl)ursed 
 for firi' losses. In Canada, policies on mercantile risks arc not 
 issueil fi)r a [teriod of more than twelve months, while tliosc on 
 dwi'lling houses and ordiiuiry household furniture are issued for 
 terms up to three years. In France and Germany, policies are 
 issui'il for one, five, ten years, antl even a longer term ; the reason 
 for this is, on the part of the com[ianies to secure the risk for a 
 nunibi-r of years, and on the [lart of the insured to avoid frequent 
 |iaymcnt of the fee charged in addition to the premium, by tlie 
 nuijority of companies for either new policies or ren»'wals. Wliilc 
 
 1 R. S. g., 52(U et siM|., luid C. (". I,. ('., lilTd. 
 
 ■! Hrltl.sli Kin|)ir.' Mat. 1-lfi' Ass. I'd. & UerKcviii, .i T{. .1. IJ., Q. H., o,'). 
 
 ' Ueport of Coiiiims., vol. iii., p, :il2. 
 
 ■• Miu'kiiy's 'I'ri'iUiHo on Fire Inw,, IM L. N , 1 1(1. 
 
NATUKE OF CONTRACT — DIFFERENT KINDS OP INSURANCE. 
 
 27 
 
 .t 
 111 
 (11' 
 
 rc 
 
 )ii 
 
 ii 
 
 lit 
 
 H.' 
 
 tln' iiremiunis tor tliroo yours' pidicios in Canada are paid in ad- 
 vance, only two years being charged, and a s.aving ot' one annual 
 premium to the insured thus eftected, the long term policies on 
 the continent of Europe are paid annually or, if paid in advance, 
 at a consideralde corresponding reduction. 
 
 There are a great variety of mutual tire insurance associations^ 
 some of them doing business in the same manner as joint stock 
 companies througliout the country, and taking all classes of risks, 
 while others contine themselves to their own province or even a 
 smaller <listrict, or insure only a certain trade, in whicli case, how- 
 ever, tlieir existence is rarely of long duration, their operations 
 being on too limited a scale to allo\v the law of average to take 
 effect. 
 
 23b. Chomage and rent insurance. — Although tire insuram-e 
 originally was, and in most cases still is applied to movable or im- 
 movable property only, the idea of protection against loss through 
 fire has been extended in some countries to i-over pecuniary logs 
 sustained, for instance, from an enforced idleness of a factory in 
 conse<iuence of a fire, or loss of rent (U'rived from a building de- 
 stroyed by fire, or, especially in France, any liability accruing to a 
 tenant towards liis landlord or to neighbours as a consequence of 
 fire. Tlie former kind of insurance is known as " chomage" insur- 
 raiice, from the French word " chAmage," " resting from work"' and 
 was first introduced in France and applied to the insurance of work- 
 men's wages during the time needccl for rejiairs in the event of com- 
 pulsory stoppage of work by the occurrence of fire. It was subse- 
 ((Uently extended to merchants, manulacturers and others to cover 
 ('onse(pieiitia1 damages arising from the occurreiu'c ot fire not cov- 
 ered by the ordinary fire insurance, such as loss ot revenue from 
 capital, plant or machinery, etc., caused by destruction of the prop- 
 ♦■rtv of the insured. The lattt'r may thus hold simultaneously a 
 regular fire policy upon building or contents, and another entirely 
 distinct upon the same projierty, but based upon the productive 
 value of such property and the average yearly iiiconu' derived there- 
 from, upon which interest at a ci-rtain rati' per cent (usually six to 
 ten) is gmiraiiteed by the policy from and after the fire, and during 
 such time as from the circumstatu'es atti'iiding the loss, the ca[»ital 
 invested nniy ronniin totally or jiartially yet eompulsorily unavail- 
 able to the insured. The cases of rent or lease policies represent the 
 principle exactly. Then' can lu' no chomage insurance without a 
 
28 
 
 INSURANCE LAW OF CANADA. 
 
 corresponding lire insurance upon the property, antl the amount of 
 chomage insurance is always limited to the existing amount of the 
 lire insurance. This principle is the foundation of mortgagee, rent 
 and lease [)olicies, ptdicies on profits, on income or commissions 
 unearned, and insurance upon production at mills under contracts 
 against failure to till such contracts, when such failure is caused 
 hy tire.' 
 
 Griswoid says the plan does not seem to have met with much 
 favor outside of France. 
 
 23c. Recent American decision on insurance of rent - 
 Value of American holdings as applied to Canadian casee.- 
 
 Amcrican decisions, though not authoritiea in anv wav l)indin<;ou 
 Canadian courts, are well worth}' of consideration I)y tliem.- One 
 c>f the most recent of these on the question of rent insurance is the 
 following: — The insurer had by the policy agreed to indemnify 
 the insured, a tenant of a building under lease, for "any loss 
 accruing to her 1)y reason of having to pay rent for the (therein) 
 described building such time or times as the building may l)e un- 
 tenantable b}- reason of fire, or fires, occurring during the contiini- 
 ance of this policy." A fire occurred and up to a certain date, 
 when rebuilding was commenced by the landlord, the company 
 acknowledged its liability and paid the rent for which the insured 
 or lessee was bound. Tlie legal effect of i-ommcucing to n-ltuild 
 was to release the tenant or lessee from liability for rent. The 
 hindlord hail also an insurance with another company against 
 losses of rent by such happenings, and the tenant, landlord, and 
 the insurer of tlie latter had an uiulerstuuding between them, and 
 an agreement was entered into by wbicb it was attempted to avoid 
 a termination of the tenant's policy. The tenant, in i-onsideration 
 of an agreement I'or an extended lease of the buildings when ri'built 
 in an improved manner, agreed that the re-entry of the landlord for 
 the purjjose of rel)uililing should not release her from liability for 
 her relit umler the original lease, as would lie the effect at law. and 
 in an article of the agrcemetit appended, it was stated that "the 
 respet'tive [larties reserve their rights against the respcetive insur- 
 ance ciimpanies under the policy of insurance which each holds fur 
 rent, and nothing herein contained shall l>e construed as affecting 
 
 ' tifisuolil, Fir.' fnilor.viitcrs Tost UooU, :i Va\., !». 
 
 -SlioMj?, I',. I., i]> Niiii^iini Dist. Friiil (iroweiN' Stuck C'u. v. Waiki'i", \ii'< 
 
 vS. c. |{.,(i;m. 
 
NATURE OF CONTRACT — DIFFERENT KINDS OF INSURANCE. 
 
 29 
 
 (HI 
 ilt 
 
 Ml' 
 
 or 
 i.l 
 
 ir- 
 
 Hi;; 
 
 
 the rii^ht of cither part}- to recover for his or her liolicy of iiisur- 
 anee against each of said oompanies." This action was to recover 
 tlie runt paid hy the tenant for the resf of the term of insurance 
 under the agreement ahove stated. The hisurer defended on the 
 ground that the hmdlord l)eing fully insured sigainst loss of his 
 rents by fire in another company, under a policy which contained 
 an atrreement that the assured would rebuild or repair the pre- 
 mises in as short a time as possible after the occurrence of a fire, 
 but in case he should elect not to do so, the loss of rent should be 
 determined by the payment of rent under it by the insured during 
 the time which would have l)een recpiii-ed for such purpose, and 
 with a view to be subrogated to the right of the landlord's claim 
 for rent against the tenant, and thereby reimbursing itself, through 
 the tenant's policy issued by this insurer, that company induced this 
 whole arrangement with a view to reduction of the amount of its 
 liability. The court said ; "The payment of rent under the sub- 
 sequent agreement by the insured was a voluntary undertaking, 
 and not a legal oliligation under the first lease, against which alone 
 the policy undertook to indemnify her." Further tlity said : '' If 
 (the facts stated in the pleadings) were true, they showed a fraudu- 
 lent attempt ()n part of the plaintiff, the landlord, and (the other in- 
 surance company) to shift a burden which lielonged on them to the 
 defendant. But even if there was no such fraudulent purpost'. tlu' 
 effect of the agreement was to continue upon the derendant an 
 obligation from which the law relieved it, and no sti|iulation 
 between the other parties witlioiit its consent ccuild acct>m]ilish such 
 a result."' The Supreme Court of IVunsylvania therefore held that 
 the agreement enteii'd into between the tenant and her landlord 
 for the re-entry ami rebuilding discharged tlie insurer from all 
 liability.' 
 
 23d. Leasehold policies. — A leasehold policy secures to the 
 lessee of certain specified property any difference in value between 
 the sum he may pay as rent for the leased premises aud the value 
 of the proiierty to him, for occuitancy, either for his own purposes 
 or in the increased amounts he may receive for rents from his 
 tenants. The longer the term the more valuable the lease ; a!id 
 as it may be determined at any moment by burning, the amount 
 covered should be the value of the lease. 
 
 ' Heller v. Royal Iiiw. Co., 1890, 1*1 Pa. St., loiJ. 
 
80 
 
 INSUllANCE LAW OF CANAPA. 
 
 Neither rout nor lease polieies have any eoniiection wi 
 
 th tl 
 
 10 
 
 value ot the huildiniijrt as such. 
 
 2i. Reinstatement and abandonment. — Tt miffht seem to 
 flow troiu the contract of insurance heing a contract of indoninity, 
 tliat reinstatement or the restoring of the destroyed property, is a 
 fulfilment of the et)ntract. But the right to reinstate does tiot 
 exist at eommoti laAV, it must rest on statute - or on stipulation. 
 In Quehei', in the absence of a stipulation in the contract, th,. 
 statute law l)eiiig silent, no right of reinstatement exists. In 
 Ontario, until 50 Vic, c. 26, s. 154, 14 Geo. HE, c. 78, s. 8:J, con- 
 tinued in force, though it was inconsistent with statutory condition 
 18.' Since this act, 50 Vic, e. 26, the right to reinstate is detine<l 
 hy the Ontario statutory condition 18, wliidi provides that in case 
 of loss or damage to property, included in a [lolicy of tire insurance, 
 the company instead of making payment may rejiair, rehuild or re- 
 l>lace within a reasonable time the property damaged or lost, giv- 
 ing notice of thc'r intention within fifteen days after receipt of the 
 proofs of loss reijuired by the statutory conditions.' 
 
 Griswold'' defines abandonment as an act at the option of the 
 insured, whereby, in the event of loss, he relinipiishes and trans- 
 fers any salvage or remiuuits of the j)roperty at risk, or the proceeds 
 thereof, to the underwriters and claims of them as for a total loss. 
 As a custom or usage, aband(Uiment of damaged property is not 
 recognized under the fire insurance policy, fi)r there can be no 
 compulsory abandonment of salvage wliere the right of reinstate- 
 ment exists, as under the provisions of tlie fire insurance contract ; 
 vso that any salvage remains the property of the insired, the under- 
 writer getting credit tlierefor in the adjustment of the loss claim 
 to the amount of its appraised value. As to reinstatement, the 
 terms of all fire policies provide for the rebuilding or reinstatement 
 of burned property in lien of payment in casl', at the option of the 
 company. This option relieves the fire insurance company from 
 the necessity of accepting an abandonment of the property, as in 
 marine insurance, for, as said above, tliere can be no abandonment 
 where the company luis the option of reinstatement. In reinstat- 
 ing jiersomil property tlie substituted articles must bo of equal 
 (pnility and value as those burned, and in rel)uilding the new 
 
 1 Uriswold, 519. 
 
 J Porter on Inn., i'A ' Carr v. The Fire Assurance Ass., 14 O. R., 487. 
 
 < Ont. Ins. Act, 1«)7, W Vic, c. 36, sec. 108, ss. 18. » Griswold, 1, 51:J. 
 
NATUllE or CiiXTKArT — DIl'KKUKXT KINKS oi'' INSl'UANCK. 
 
 81 
 
 lit 
 it- 
 lal 
 
 vditirc must Ik; (-(jniil in all imrtiiMihirs to the old. Tlit- (Ictcr- 
 nruuitioii of tlio undiTwritor to ivhuild at once oliangi's tlu' insur- 
 ance' [lolii'V into a liuildiiig contract at the oxjK-nso of the eoiuiiany. 
 
 21a. Insured entitled to an expertise. — Where the [ihiin. 
 tift'V liouse liad l)een destroyed hy tire, and the insurance coni- 
 l>any aviiilcd themselves of a clause in the policy hy wliich they 
 iiad the option to rebuild, but afterwards refused to redeliver 
 in the cdiidition in which tlie insured claimed it should be, it was 
 held, (in action l)rought, that the jilaintitt" was entitled to an 
 exjicrtisc, and so long as the company had not coinplieil witli tliat 
 condition, he was not bound to receive the liousc, and tlie circum- 
 stance of his having, during construction, made suggestions to the 
 builder, could not be held to deprive him oi his right to an ex- 
 pertise.' 
 
 25. Scope of life assurance. — Life assurance has developed 
 from its original simple form into a great variety of methods and 
 .systems in most of which the idea of insurance in case of death 
 predomimites, while in otliers it is combined with a provision for 
 old age or an investment to be realized at the expiration of a term 
 of years. 
 
 The business of life assurance is carried on either by joint stock 
 conqtanies as a commercial enterprise or by mutual societies fov the 
 benefit of members only and without tlie purpose of imiking a profit 
 in the commercial sense of the word. 
 
 The ditterent plans of insuring life are too numerous to be 
 described at length in this work ; they are, moreover, constantly 
 being changed and added to, owing to the keen competition of tin' 
 many institutions in this branch of insurance. It must therefore 
 suffice to give u short sketch of the plans most generally in use at 
 present. 
 
 A straight life policy is one for which a premium is paid every 
 year during the entire lifetime of the assured, with or without 
 })articipatiiig in the profit made by the company ; the policy matur- 
 ing upon his death. As a rule the i>remiums are calculated to be 
 [laid up to a certain age oidy or for a certain numlier of years and 
 may even be paid in a single amount. The sum assured is either 
 payable at death or at a certain age. 
 
 The choice of the plan of assurance depends entirely upon the 
 
 1 Alleyn v. Th2 Qiielxic Assumiice Conipiiny, II L. t'. K., :J!>4, S. C, 18B1. 
 
S2 
 
 INSCRANt'E I,AW OF CANADA. 
 
 kind of i»rovi(si()ii the applicant may desire to make and upon the- 
 Bum he is able to disburse annually for such a purpose. If his 
 moans arc limited, he will take the simplest and clioapest form,tliat 
 is a *'life" policy for which he has to pay every year until death 
 intervenes ; but if he can attord to pay a somewhat increased 
 premium, he has a greater choice and will perhaps take a " limited 
 jiayment lite" policy, which means that the paying of a premium 
 on his part ceases after 10, 15 or 20 years, or more, and that the 
 accumulation of profits, if his policy entitles him to share in them, 
 will be considerably increased, besides other advantages as to sur- 
 render value, etc. 
 
 If the assured is entitled to a share of the iiroiits, the latter 
 arc often applied to a reduction of future i)remiums. 
 
 This plan of life assurance has been resorted to in order to- 
 relieve the assured of the payment of premium when, later on in 
 life, he may, perhaps, be less able to bear the burden of such 
 [)ayment ; it was thus ;i ste-[> in a forward direi-tioii, contemplating 
 as it did the future of the person assured himself, and it prepared 
 the way for the iiitrodiirtioi) of anotlu'r very important kind of life 
 assurance which has met with general favor, as it not only provides 
 for the family of the assured, in case he should [irematurely die, Wut 
 also secures for himself a certain amount of money ujton his reach- 
 ing the age stiitulated in the policy. This plan is called "• endow- 
 ment insurance." It is adopted by those who are willing and in a 
 position to lay aside for a uumborof years in the shape of premiums 
 a larger amount than is ri'ipiired for other forms of life assurance, 
 thus procuring a safe investment returnable at the expiration of the 
 term of years stated in the policy, should the assured be then alive, 
 in addition to ]iroviding for the beneficiary through the payment 
 of the sum for which the policy was issued, if death should occur 
 before the jiolicy matures. Such policies are issued for terms of 
 10, 1"), 20 or more years. At the maturity of an endowment policy 
 several options are offered ; the assured may either surrender his 
 policy in return for the reserve and surplus accumulated thereon, 
 or he may receive the surplus in cash and allow the ]>oliey 
 remain in force with the original amount to be paid upon h 
 death, or he may take out a fully paid-u^i policy for a consider- 
 ablj' larger amount than the origimd sum contracted for. 
 
 It is also sometimes, as a more recent innovation, provided 
 that the amount of the policy shall not be [)ayable immediately 
 
NATURE Of CONTRACT — DIFFERENT KINDS OF INSURANCE. 
 
 3:! 
 
 upon aspurod's doiitli, but at a later date stated in the contract. ..r 
 in certain annual instalments, in which case the company allows 
 interest at a tixed rate, thus providing for the beneticiary a profit- 
 able investment, and relieving him of the trouble of making such 
 an investment when, perhaps, he might be able to do so at a less 
 tavorabk? rate of interest only. 
 
 An essential part of the endowment plan being in the nature 
 of an investment for contingencies expectoil to take place in a 
 future comparatively remote, it is specially adapted to a provision 
 parents may make for their children. An endowment policy 
 taken out on the lives of young children may be considered a 
 suitable way to provide at the proper time the capital. necessary to 
 pay for the higher education of a son, to enable him to slarr in 
 business for himself, or to give a dowry to a daughter. 
 
 Tins particular form of endowment insurance has (k'veloped in 
 Kngland and has also been introduced in Canada. The premium in 
 some cases is arranged to be returned, if the child should die 
 before the policy matures. 
 
 Any insurance effected on the lives of minor children in 
 Ontario must conform to the rerpiirenients of section 150, ss. l-.j, 
 of the Ontario Insurance Act, 1897.' 
 
 25a. Ter.tine and semi-tontine. — Tontine ]ioli(ies are issued 
 in anv usual form such as ordinary lite, limited, pavment lite oi' 
 endowment policies. They are issued at the usual rates ot' pre- 
 miums, and the difference l)ctween such policies and ordinary poli- 
 cies lies in certain peculiar stipulations. The iirst stii)uiatioii i- as 
 follows : " Xo dividend shall be allowed or paid upon tliis policy 
 until the person whose life is insured thereby shall sui-vive the 
 completion of its tontine dividend period, and uidess this ]iolicy 
 shall then be 'u force." The period referred toist.itber ten, tifteen 
 or twenty years, according to the choice made by the j)olii;y liolder 
 in his original application. The etleet of this stipulation is that 
 each premium must be paid in full in cash during the tontine 
 period without being reduced by dividends. The s(>cond stijuda- 
 tion is : " Previous to tha completion of its tontine divi<lend period, 
 this policy shall have no surrender value in a paid up policy or 
 otherwise." The effect of the stipulations above quoted is to pro- 
 duce savings to the company, tirst in not paying out dividends, 
 
 I 
 
 See Hunter's, Ont. Ins. Corpor. Act, 1>^02, p. i", and 60 Vic, c. :« (O.) 
 3 
 
34 
 
 INStMlANCE LAW OF CANADA. 
 
 :iiul socoiidly in not issuiim; imitl ii[» policies in ciisc of JMpso. Tlio 
 viiliio ot'siu'li siiviiin's witli tlu'ir :u'cunuil;iti()ns is civdited to tlic 
 tontiiio policies wliic! (.'oiniilotc tlioir respect ivi- periods. Sonii- 
 tontiiie policies lorni :i separate variety being like tontine policies 
 as regards dividends, hnt enjoying the same privileges as ordinary 
 policies in case ot'lapsi' as regards paid np insurance. An account 
 is koi>l l»y the company iVom year to yi-ar of tlie special savings 
 derived from tontine ])olicies, and a separate account is kept for 
 semi-tontine policies. To keep in view the e((uital)le rights of each 
 tontii\e and sonii-tontine policy, ;i provisional account or memoran- 
 dum of its contributions to tlu' undivided surplus is kept, including 
 its share of special tontine prolits, adding interest from year to 
 year at the current rate used in the ordinary dividend calculations. 
 Till' sum of all these nu'inorandum a'l'ounts shows the total tontine 
 surplus of the company. The memorandum thus kept of each 
 policy is subject to future rectilication, and is not in the nature of 
 a deposit account nor does it create any liability diiVerent from the 
 ('uty ot every company to distribute in <iue tinii' its undivided sur- 
 plus on eipiitable principles.' 
 
 The invention of I lu" tontim.' plan is ascribed to Lorenzo Tonti, 
 an Italian, by whom it was propounded about the middle of tlii' 
 seventeeidh ei'ntnry, as a mode by which the governments of the 
 (lav might obtain loans. Thi're seem to be several forms in which 
 from tinn* to lime tontines have bet'ii ari'anged, !)ut the general 
 idea (as we have seen as ap[ilicd to life assui'anci-) is that proi)erty 
 is loaned or owned or invested loi' the henetit of a innnbiM' 
 of persons, who at first receive its inctunc divided among all ; when 
 one dies, however, his share goes, not, to his heirs or represen- 
 tatives, but to ii\creast' the sum divisible among the sui'viving 
 meudters. As the nundier of members diminisbv's by successive 
 deaths (no new members are created) the annuity of t'ach is ii\creased 
 until at length the last survivor takes the whole income, or it nuiy 
 be the whole principal, if such were the terms ol'llu' t'oundation." - 
 The Supreme (lourt of .Massachussetts, Dcvins, .1., have well 
 described the nature ol'tiie contract in sucii insurance as follows : — 
 The prineij)al characteristics of the policy in ihih caseare these: Jt 
 wart for the Slim ot .$10,001) payubleon the decease of the insuretl to 
 iiini, hisexeeiiltu's, ailminisl i at ors or assigns, and was litr the term of 
 
 1 lIiiiiliTs, Out. Ins. <'()ip(ir. Act, l.^C', p. is. 
 
 •J .\1>I.. I,. l)l.t.,r.7J 
 
NATlltK 01-' CONTRACT — r)ri''l''KRKNT KIN'DS OK IXStUA\(;K. ^io 
 
 his lite. It wiis known iw ;i tontiiio policy on the savinn-.s iiisiirancc 
 |>iiui and was to lontiniic as such lor the torni of ten years, it'tlio 
 insured sliould live so loiii--. If the holder of the i)orn'y died during 
 tiic tontine, whii'h exi)ired on a date named, his estate would not 
 receive any heni'til froui the dividen<ls which ordinarily are made 
 on life assurance |K)lieie.s annually or at stated periods, which 
 dividends consist ol the surplus of [iremiunis after deducting' the 
 cost of insuranci' and (he computi'd reserve, these bi'ing then held 
 by the company lor the benefit of the other policy hohU'rs and 
 torfeitod by him. His .'state would receive only tlii' amount of his 
 policy. It the bidder of a policy should also fail durinii; the tontine 
 time to keep u[> his policy by payment of tlu! premium, i '.ould be 
 torfeitcd. Tolicies of this character are kept in class- s of ten, 
 tift(>cii or I wenty years, aceordinn' to theii- tontined perioils, ami, 
 while till' funds of each class are not ke[»t se|)arati', distinct accounts 
 are kept with I'ach class so as to show (he amount to whicdi it is 
 I'lititlcd, and i)y Ibis means the amount due upon each policy at tlu^ 
 expiration of its tontine ti'ini. At the expiration of ten yours, il' 
 such be (he term, or at the completion of (he tontine dividend 
 pei'iod, i( is provided tha( all surplus or iu'oli(s derived from such 
 policies on I he (on(ine savings fund assurance plan, as shall ceasi« to 
 lie in l'nii(> iic(ore (he complet'';n of tlieir respecdve tontine divideml 
 pciioils,sl!all be apportioned ('(juitably among such policii's as shiill 
 complete their tontine dividend periods. To (bis is aiMcd an agree- 
 ment giving an option (o (he policy holder as (o wha( he will have 
 ilonc with bis share of sucli profits, stating diffcreiit usi's to w'ich 
 he may have it applied, if not wididrawn in cash." ' 
 
 25b. Joint livoa Annuities Annuity apportionment.— 
 
 I'olicies arc also issued on (he joint lives of (wo persons, sa>' 
 husband and wifi', or two partners in busiiu'ss, (he amount assured 
 lo lie payable at (be ilcadi of one of (1h^ par(ies. liife insuraiu'c 
 companies also grant annuides payable annually, scmi-;iiunnilly or 
 (pnirtcrly during (be life ot (he assured. Tiiis kind of contract is 
 the reverse ol' life assurance pro|)er, as (he company is the parly 
 Ibal receives th(' capital and pays it baik in inslabiH'nts until the 
 di'ath ot'lhe assured (ermina(es (he con(rac(. 
 
 The following is a recent Ontario decision: In consideration 
 of :|I1"J,0(»() paid by plaintiH"rt testudu- (o (he defendants, they, by 
 
 ' Plvrco V. Ki|uil»lilu Lll'o AsHur, Soc, IfH?, 1 15 Miins,, iMIW. 
 
 N 
 
 A 
 
 y 
 
86 
 
 INSURANCE LAW OF CANADA. 
 
 an instrinnont in writing, iigreod in pay liim $1,800 every year 
 during liisi initural life, in equal ((uarterly payments of $450 each. 
 The terms " policy " and " annuity bond " were both used in the 
 document itself as descriptive of its nature. The consideration 
 was stated to be not only the $12,000 but "the application for this 
 policy and the statements and agreements therein contained, 
 hereby made a part of this contrai-t ;" and it was provided that 
 upon certain (.'oiiditions " this policy shall be void." 
 
 Ifi'lii in an action by his executors, that the instrument was 
 not a policy of assurance within the excej)tion in Revised Statutes 
 of Ontario, ch. 143, s. 5, hut an aniniity bond ; and that the money 
 [Kiyable by the defendants under it was apportionabU' within sec- 
 tion 2, and tlun'cfore the iilaintitfs were entitled to recover a part 
 of a quarterly instalment in proportion to the peritid lietwcen the 
 la>t (iiiarter dav and the deatli of the testator.' 
 
 The sections of ctia[iter 14:i of the Ivcvist'd Statutes of Ontari(> 
 rctciT<d til iu tlie above case are as follows: 
 
 '• 2. All rents, i-.muiities, dividends and other jieriodieal pay- 
 ments in the nature of income (whether reservt'd or madi' payabh' 
 under an instrunu'iit in writing or otlierwise) shidl, like interest on 
 money lent, be considered as accruing from day to day, and shall 
 lie apporti'inalile in respect of time accordingly. 
 
 "• 5. Nothing in the preceding provisions of thi^ .\i't contained 
 >hall render aiqiortionablc any annual sums matle [layable in poli- 
 cies of assurance ot any dcscrijilion."" 
 
 25c. Annuity fund for widows, etc., of government em- 
 ployees, authorised by government Rights of subscribers — 
 
 The Customs Annuity and neiievolent Fund was established by Act 
 ot Parliament in Kiiglaml for the IxMietit and relief of the widows 
 and chililrcn or other relatives of the established ollice rs, clerks, or 
 t)ther [UM'sons enqiloyed in the departnu>nt of customs, The ac) 
 autliorized a '• Contril)Ution of I'oundagc'' to be K'vied on and 
 deducted from the salarii!s of the olKcers, etc., who did not decline 
 to make sn»'h contribution (althotigh they did not beconu' sub- 
 scribers) which tbrmed the inu'leiis of 'be finid. lliiles were to he 
 made with the same force as though enacte<l. The directors were 
 to have the I'ldl, entire ami exclusive control and management of 
 the fund, subject to tlie rules, and might from time to time alter 
 
 1 Cutliliert VN. Nortli Ami'rlciin Life AnHuruiice Co., 'ii Ont. Rt'portw, p. 611, IWM. 
 
NATURE OF CONTRACT — DIFFERENT KINDS OF INSURANCE. 
 
 37 
 
 nny of the rules and substitute others, with the approval of the 
 persons becoming insurers, who were called " subscribers." The 
 subscriptions were upon the principle of life insurance. One of the 
 rules provided that " the capital money forthcoming at a subscriber's 
 death, by virtue of his insurance, shall, subject to the following 
 regulations, be appropriated according to the directions contained 
 in his will or codicil, or in any instrument of writing signed by him 
 in the presence of an attesting witness, and deposited with the 
 <lirectors during his lifetime, or within three calendar months 
 after his death and which instrument may , at the option of such 
 subscribers, be made absolutely irrevocable, or, in default of any 
 such direction in maimer hereinafter described." There was sub- 
 sequent legislation by parliament ; the authority to levy poundage 
 was taken away and new rules were made, by which the fund was 
 to continue to be raised by subscription on the principle of life 
 insurance for the benclit of the widows, (diildren, relatives and 
 nominees of otticers, and the admission by the directors of nominees 
 of subscribers should take place during the subscriber's lifetime. 
 Under the rules tlie widow's share should be one-third, if appro- 
 priated in creation of an annuity, or two-thirds, if set apart for 
 investment, an<l in either case the remainder of the capital money 
 should be "subject to the <lirection of the subscriber, and applied 
 or paid in any manner or proportion he may think tit, for the 
 benefit of his widow, chihlren, blood relations, or any of them, or 
 his nominee or his nominees who shall have been duly admitted by 
 the directors." If tlu' widow was " provided for in the manner afore- 
 said," or if there was no widow, " then the whole capital money shal' 
 lie sul))ect to the direction of the subscriber as aforesaid." It a sub 
 seriber died, leaving issue "without having, by will c/such other 
 iiistrunu'iit as aforesaid, directed the application of the capital 
 im»noy herein placed at his disposal," the same became the pro- 
 perty of the children eipially. If there was no widow, child, or 
 issue, tlie whole lapital money went to the subscriber's next-of-kin. 
 Where a subscriber died a widower leaving three children, l)y 
 Ills will be luMiiicathcd his insurance to a third party who was not 
 ;i relative of iiis, and who was never admitted as u nominee by the 
 dirtu'tors of the fund. In this way arose the (pu'stion of who was 
 entitled to this capital fund under the statute and rules under 
 which it was accumulated and administered, and what rights as 
 to this fund the suliscriber had under the statute nnil rules. 
 
 i 
 
wmmmm 
 
 vm 
 
 ;]8 
 
 INSURANCE LAW OF CANADA. 
 
 Tlie Ctnirt of Appeal held, that the cliihlren were entitled to 
 this t'niitl. As to the rights of the subscriber, Jessel, M.R., said : 
 " Originally the subseribcr could not help paying, because it was 
 dechicted from his salary ; but it is really nothing but a power of 
 appointment. The wording of the second set of rules is a little 
 embarrassing, because avc tind the use of the word "aforesaid" 
 twice over, which may refer to different things ; but it is obvious 
 to my mind, when you look at the alternative, that the rule is 
 intended to remain as it was at first. But, if that is so, there are 
 two decisions on the first set of rules, and they both go in the 
 same direction. There is a mere power of ai>pointment, and in 
 default it goes to the persons named. If there is no widow and no 
 person named, it goes to the children. Is there any exercise of the 
 power of appointment ? T think there is not. It is not (piite as 
 put by counsel, that the insurance is the subseriber's own property. 
 The Act of Parliament takes away a certain sum out of his salary, 
 and when it is taken away it ceases to be his. It gives him instead 
 these rights, but these rights have really no reference directly to 
 the person ])aying. That being so, is there anything really incon- 
 sistent in leaving the directors to say whether or not the nominee 
 should be accepted ? It is quite possible, and I think it was 
 intended by the orignnil Act, that the directors should have a dis- 
 cretion and be able to say, if a man has a wife and a di>zen children, 
 that he should not exclude them, or that he should not compel the 
 directors to ai'cei)t the nominees at all. It is (piitc consistent with 
 the object of the Act. Xo doubt the object of the origimd Act was 
 to protect the treasury from the claims of the widows and t(hildr*'n 
 of these officers, by compelling the officers to provide in their life- 
 time by compulsory savings — for that is what it comes tn — for 
 their widows and children. That is the primary object of these 
 provisions. If that is so, that is quite consistent with the theory 
 of mere appointment, which is the basis of the Act. I think that is 
 the true vi( w of the rules, and conse(pient!y in this case the nom- 
 ination not having ln'cn registered in the lifetime of the ollicer. 
 there is no nominee who can take under the rules, atid, therefore, 
 that the (ihildren arc entitled to what they are asking for.""' 
 
 25d. Industrial insuranoe. — A jilan adoptc(l by some com- 
 panies is known as industrial insurance ; it has developed to a 
 
 I /{f I'lilllips Inn., 18KI, :i;jcii. I). 2;Ui. 
 
 i 
 
NATURE or f'ONTRACT — DIITERKNT KINDS OF INSURANCE, 
 
 30 
 
 p;m'prisiinfly large oxtcnt, and is chiefly tavorcd by tlie working 
 classes and pe()i)le of limited means, as the premiums are collected 
 weekly an<l are therefore niore easily payable, the amount assured 
 as a rule l)eiiig much smaller than in other life assurance policies, 
 and often only just sufficient to pay fun.eral expenses and assist 
 those who were dependent upon the ]terson assured for a short 
 time after liis deiith. 
 
 25e. Death within certain time. — There arc idso life poli- 
 cies issued, although they arc not very frequent, containing somo- 
 lliing of a siH'culiitivc chariicter, and which [irovitle for the pay- 
 ment of the sum assured oidy if death takes place within the time 
 stipulatecl in the jiolicy. 
 
 24f, Non-forfeiture policy — Life insurance (companies issue 
 ]iolicies which entitle the hohlers, after the payment of ])remiums 
 for a nund)er of years, upon a surrender of the original i»oli(^y to have 
 a new jiolicy issued for such a proportion of the original amount 
 of indemnity, as the number of years hears to tlio whole number ot 
 years for which the policy was originally issued. 
 
 Upon one of these ]>olicies the words "Non-forfeiture policy" 
 were conspicuously printed. Tn a case before the New York Court ot 
 Appeals, Andrews, .1 , as to the rights ot the hohU^rs of such a }iolicy, 
 has said : '' A refcrcuci' to the body of tlie policy shows that it was 
 not intended to make the policy non-forfeitahle except in a limited 
 si'use. Tlie assured was not relievc<l from the oliligation to pay 
 the premium annuidly on the (hiy specified. I>y the express terms 
 of the contract, an omission to pay the premium on tin- day it be- 
 came due aA'oided tlie policy. Mul, if iit the time of such omission 
 he had piiid two or more premiums, the company bound itsell' to 
 issue II new policy for iis miuiy tenths of the original insurance 
 as there bad been premiiinis paid. This was the only sense in 
 whicli the original iiolicy was non-forfeilable. The assiiri'd wnubl 
 not lose all beiietit from premiums paid, if tbe policy slKUild become 
 void by an omission to pay snbsiMpient ]treiiiiu)iis. An omission to 
 pay the |iremiiims, when due, t<'rminated the original eontract. but 
 tlie assured, if be liad pai<l t wmu' more premiums, w oiild, on a sui"- 
 reiidcr of tbe policy, be entitled to the substituted contract as pro- 
 vided. In case of a lireacli of any ol the comlilions of the |io!icy, 
 otlier tiitin the omission to jiiiy llie pri'miums when due, tlie assured 
 was in no way protei'ted against an absolute forfeiture of tlie poti' y,"' 
 
40 
 
 INSURANCE LAW OF CANADA. 
 
 Ill this case, one who held a policy given upon the surren- 
 der of the original policy, for its proper number of tenths of 
 the whole amount of the original policy, presented it as a 
 claim against the receiver of the company, which was being 
 wound up in insolvency, and the claim was dismissed on the 
 ground that, \*y its terms, it had been forfeited. It was insisted, 
 that the insertion in the new policy of the clause of forfeiture for 
 non-payment of interest annually on the outstanding iiremium 
 notes given for premiums on the old policy was unauthorized by 
 the terms of the original policy. The Court of Appeals held, that 
 conceding the claimant, after having acceptetl and retained the new 
 policy for so long a time, could now insist that the forfeiture clause 
 was inserted without authority (as to which qnare) the new policy 
 conformed to the agreement in the original policy, which clearly 
 showed the intention, in case a new policy was issued, to impose 
 upon vhc asstired an ol>ligation to pay interest annually on premium 
 notes outstanding, and the right of the company to insert the usual 
 provision of forfeiture as a nieans of enforcing this obligation was 
 implied.' 
 
 26k. Insurance against the birth of issue. — This is a class 
 of insurance whicii docs not appear to have been resorted to in 
 Caiuula or in the United States. No cases bearing upon this sub- 
 ject seem to bo reported. Si)eaking of it iu England, however, 
 Bnnyon ■ says, that the insurance of a sum of money upon the 
 ciintingency of the birth of lawful issue of specified jitersons 
 is of more rare occurrence, but of importance from the magni- 
 tude of the sums which arc generally involved iti it. Until of late 
 years it was a (tontract rarely entered into, but a[»pcars now very gen- 
 erally adoi>ted by insurance ofHces. This risk may be citli(>r coupled 
 or not with some contingency deiicndent upon the duration of 
 iiuman life, such as the attainment of a particular age by the issue. 
 The more common case is that in which a tenant for life under ii 
 settlement is entitled to the reversion in fee simple subject to an 
 estate tail in his own issue (if any) by the particular marriage, and 
 is desirous of mortgaging the estate without burdening his life 
 interest with tlu' premiums of insurance on his own life. In such 
 a case, after the lapse of n consideral)lc number of years since the 
 
 ' I'cople V. Kiiickcrlmckor lAtc Ins. Co. (18t'(l), 10;» N. Y., 480. 
 • Bunyon, 101, 103. 
 
NATURE OF CONTRACT — DIFFERENT KINDS OF INSURANCE. 
 
 41 
 
 iTiarriage, without the birth of a ehihl, tliu probability of issue m 
 very small, and seem.s a fair subject of insurance. The principle 
 element for consideration is evidently the age and state of health of 
 the wife, and the risk depends so much upon the circumstances of 
 the particular case, that no general law can be said to prevail by 
 which it may be estimated. The author cites some cases, giving ages 
 of women at which it was presumed l)y the courts they had been past 
 child-bearing. When the contingency insured against is not only the 
 birth of i'hildren by a particular marriage, but includes children by 
 any future marriage of a man whose wife, to whom he has been mar- 
 ried for some years without the birth of a child, is still living, the 
 risk appears to depend to a large extent upon the life of the wife.' 
 
 25h. Contracts of insurance companies and beneficial 
 societies distinguished. — Insurance companies generally are not 
 founded on a philanthropic, benevolent, or charitable principle. 
 They are purely business adventures in which, for a stipulated con- 
 sideration or premium, they engage to make up, wholly or in part, 
 or in a certain agreed amouiii, any specitic loss which the insured or 
 beneficiary may sustain ; and the contract may apply to loss of or 
 injury to projierty, to persoiuil injury, personal or employer's 
 liability, or tt) loss of life. To grant indenniity or security against 
 loss, for a consideration, is not only the design and purpose of an 
 insurance company, but is also the dominant and tharacteristic 
 feature of the contract of insurance. 
 
 A benevolent association, however, has a different ol)ject in view. 
 The underlying purpose of the organization is not to indemnify or 
 secure against loss, but to accunuilate a fund from the contributions 
 of its members ' for beiu'ficial or protective iturposes,' to be used in 
 tlu'memb«'rs own n'lief in sickness, injury or death. The benefits 
 are secured by contract, and for that reason, to a limited extent, they 
 are assimilated to the proceeds of insurance' ; but they are rather of 
 a pliilantliropie or mutually benevolent eharacter ; tiieir beneficial 
 features may be of a restricted eharacter ; the motives of the mem- 
 bers nuiy 1)1' selfish in part, but the principK- on which they rest is 
 founded on the considerations mentioiUMl. These socieiies have no 
 capital stock. They yield no profit, and their tontracts, although 
 intended to be beneficial and protective, altogether exclude the 
 i<lea of insuranve, or of indemnity, or of security against loss.'' 
 
 ' S<!o index for S liifrii. 
 
 J See Coinmoiiweultli v. Eiiuittiljio Ben. A>s. (IS90), l;J7 Pii , St. 112. 
 
42 
 
 INSrUAXCK LAW OK CANADA. 
 
 25i. Contracts cf mutual benefit insurance societies- - 
 
 Mr. Hunter iioiiits mit tli;it, wliatcvcr may bo the iiiotivo uikUt- 
 lyiiig tlio <:;ri'at srliomo of lil'i' insurance', it is certain tliat, in its 
 practical application, it is and must 1)0 toumlcd upon contract. 
 rts ht'ncvolcncc must tlow not from mcrt- <;-oo(l will, hut from legal 
 obligation, its gitts must not dopi'nd upon the continuiince of 
 the chiiritahle in)|iuise of those who shall pay, hut upon nnitual 
 promises. Although the object ot' the insurer in making the con- 
 tract and the object ot' the organization with which he contrai-ts are 
 benevolent and not speculative, they have no bearing upon the 
 nature and etfect of the business conducted and the contract made. 
 Xor will the character of the contract l)e changed by the ttu^t that 
 the organization issuing designates itself as a benevolent or charit- 
 able society instead of an insurance! company. The name of the 
 society will not nei'essarily Hx or establish its real character. 
 
 If tlie j)revalent [lurpose ami nature of an association, of what- 
 ever nanu>, be that of insurance, its legal character will not be 
 cliajiged by the 1)eiu'Volcnt or charitable results to its beneficiaries. 
 
 A society wlTu'li by contrai-t agrees to pay the beneficiary of 
 a deceased member a sum of money is a nuitual insurance comjiany 
 wluitever may be the terms of ])ayment of the eonsidt'ration by the 
 nu'inber or the mode of payment of the sum to be jiaid in the event 
 of his death.' 
 
 Henevolent associations, benefit societies, fraternal orders, 
 religious and other associations upon a co-operative or assessment 
 plan are governed first by the regulations provided in the statutes, 
 and then by the constitution, laws and rules of the societies, so far 
 as the statutes allow and authorize. Their powi'rs are shown by 
 the rulings of the courts, where their jiower to do certain acts has 
 been <pK'stioi)ed. WIkm'c an association, although styled a bene- 
 volent nmtual association has the essential elements of a life 
 insurance company, it eonies within the provisions of the statute 
 regulating life iiisuranet' companies. - 
 
 25j. Assessment insurance. — in assessment insurance either 
 one or other or l)oth of t he folhjwing elements are present : (1) The 
 premium consists of sums uiici'rtain or variable in time, number or 
 
 ■ Nibluck on Mutual Ik'ui'lll Sofii'lios. p. llKt iiud cum's llicre cited; see hIko 
 Hunter's Ont. Ins. Corimr. Act, \W2, p. :»7, and hco citations, sluiwinn wliiit is a 
 mutual company in Ilrill-ili Km. Mul. Life Ass. Co. iV nciKcviii, ', UJ.Q., QM., ."i, 
 referred to suprii, S i(a. ■' Mcacli. ^ I'js. 
 
 
NATUKK OK rONTRACT — |)ri'l"EUENT KINDS OK INSURANCE. 
 
 4:? 
 
 uiUDiuil. This ifi llic cast" with coriioi'iitioiis iiiith()ris(.'(l fo transacl 
 aHKcssiiiciit iusuraiicc midor section -">!• <>t' tlic Insurance Act of 
 CaiKuhi.' {'2) 'I'hc Ix'Dctit nf insurance moneys payabh' liy t,lie 
 coi'itorations unihu' tlie contract" is made (h^peinU'iit upon the 
 colh'ct.ion of" sums levied n[H)\\ persons iioldintf simihir contracts, 
 or u[ion nieinliers of the coutraetin<:; corporation. 'I'his inclinies 
 the (U^finitiou of assessment life insurance companies, in the Insui'- 
 ance Act of Camida, as a company cai'ryinu; on husim-ss of life 
 insurance l)y promising- to pay, on the tU-ath of a member of such 
 eompany, a sum of money soUily from the procecids of assessment 
 or dues collocted, or to l>e coHected, from the members tliereof for 
 tliat jMirpose. 
 
 While ill one sense companies transacting; business on the 
 premium note ]ilaii are transactiui^ assessment insurance, inasmuch 
 as tlie notes an* assessed for the losses and expenses of tlie coin- 
 piiiiy, yet there is a clear distiiietion between mutual (iiH-hidinii' 
 tire mutual) (companies and companies uiidertakins:; cioiitracts with- 
 in the detinition of assessment insurance and lietweeii mutual com- 
 panies and fri«!iidly societies. And this distinction, it is jiroper to 
 observe, although in the United States mutual iiisuranee is some- 
 limes used as synonymous with assessment insurance. in lii'e 
 mutuals tlui premium of the assureil is the premium m)te, or his 
 undertakin<; to pay assessments thereon, in the event of loss, while 
 the insurance is on toot or durintr the curi'eiicy of the prcnrnmi 
 nott". The assuri'd is liable to the full extent of the I'aci' ot' the 
 note ; he mav not withdraw.' 
 
 !l 
 
 25k. Under assoHsment plan premium cannot be fixed 
 beforehand — I'nder the contracts of compiinies insuriiii; on the 
 assessment [ihtn, the whole amount that t he assured iiinv have to 
 pay, if lie desires to continue the insurance, cannot be fixed hcfore- 
 liaiid ; but the premiums consist ot" sums variaiile in lime, uumln'r 
 or amount, ami the liability of the assui'ed, apart fr(un special 
 a<;jreement, is within the control of the assui'ed. Ife, however, may 
 decline or nei^lect to jiay further assessments, and so the policy 
 may lapse. 'Pile liability of a member of a friendly society under 
 his contract, at any date, is limited ex[)ressly to the assessment (d 
 whieh, at that date, iiot/n'e has actually been li'iven by the so(!iety. 
 
 ' Hunti'r'H Oiil, Ins. Corpor. Act, soc. (i, - 111,, sec. 2, nh. 111. 
 
 'Out. liiN. Ai-t, IKfIT, CiO Vic, V. :tti. Hci'. l:«f, 1:11 ; iind set! Ihiiitcr, \>. (Kl. 
 
m 
 
 44 
 
 INSURANCE LAW OF OANAltA. 
 
 By teiuloriiig puyinont of such {isso^piiueiits and giviiiij notiou oi 
 withdrawal, ho hocomos released from all further liability under 
 his contract.' 
 
 Again, the amount payable under the contract of tlie mutual 
 company is not in any way dependent upon the amount realized 
 by the assessment. If the company cannot jiay its losses in full> 
 it is insolvent ; the license of the company to transact business 
 becomes void, and the company goes into li(juidation.- 
 
 Assessment life insurance companies, under section 3<> of the 
 Insurance Act of Canada, may transact the business of life insur- 
 ance by promising to pay, on the death of a member, a sum ot 
 money solely from the proceeds of assessments or dues collected 
 from the memlters for that purpose. If the assessnu-nts do not 
 realize the maximum named in the certificate, the claim of the 
 holder abates.' Similarly, the companies authorised, under section 
 39 of the same Act, to transact life insuratice on the assessment 
 plan, do not contract to pay a sum certain, but are permitted to 
 carry on business so long as the company continues to pay its 
 losses in Canada to the full limit namcil in its certificates.* 
 
 Certain domestic and foreign corporations are empowered, 
 under the Insurance Act of Canada, to transact the l>usiness of life 
 insurance oti the assessment plan.' 
 
 The words "assessment system" must be printed in large type 
 at the head of every policy and every application, and also in every 
 circular and advertisement issued or used in Canada in connection 
 with the business of such a com[iany." 
 
 26. Licenses required — By the Ontario Insurance Act it 
 is declared unlawl'ul for companies other than those licensed by 
 the Provincial Treasurer or by the Dominion of (Junada, and bene- 
 volent, provident, industrial or co-operative societies not requiring 
 a license before the passing of the said Act, to unilcrtake contracits 
 of insurance.^ 
 
 Similarly, by the Insurance Act of Canada, no unlicensed 
 company or person may transact the business of insurance. From 
 
 ' Onl. Ins. Act, ISKT, (HI Vic, c. :«1, sei'. IM. 
 
 H. S. O., 1HH7, 
 
 1«7 
 
 W. 
 
 n. S. c, c. 121, ss. :«;, :t7, :»h. 
 
 * R. S. t",, c. 121, s. :«», ss. 2, and hub IIuiiIim's Ont. Ins. (Jorpor. Act, 181)2, p. <ll . 
 
 •' R. S. ('., 121, .s. :tS, :«), anil Ont. Ins. Act, 1SJ»7, IX) Vic., c. :«), s. .-)(>, ss. 2. 
 
 « 1{. S. C, f. 121, H. 11, and sec sec. 12 (for penalty); Out. Ins. Act, 1«>7, fH) Vic, 
 c. IKI, H, Hit, ss, 4, 
 
 " Ont. Ins. Act, 1H!)7, (Ml Vic, c ;W, h. :«), rn, sr. ; and sec. .«. S. M., IS91, c. 21 ; N.U,, 
 .55 Vic, c, 4 and .1 ; I' E.I„ ISlll, c :i ; H.C., l.SO:», c. 12. 
 
NATI'RE OF CONTRACT — Ml'FKUKNT KINDS (IF IN'SI'IIANCK. 4i> 
 
 this I'liJU'tiin'iit arc likewise oxcepted certain societies or assoeia- 
 tioiie.' 
 
 Uiuuitlioriseii iusiiraiice is illeiral, and penalties are iinposcd 
 fhereoii. The t'liactment of a penalty avoids the contract, thi' 
 making of wliich is visitcMl with a penalty.'- If, liowever, an illcifal 
 insurance lu' ettcctcd, tlu' parties heintj in fxiri ilellrln, the assured 
 cannot recover in the event of loss, nor can he recover the pre- 
 ininnis pai<l.'' 
 
 Tiic exception contained in i\. S. ('.. ]-24, s. 4:'>, does not 
 extend lo tlie ti'ansacvion of insni'anc<' other llian lite insurance liy 
 I'raternal or hcnevolent societies. 
 
 Titus, in a cuse umler the Insurance Act ot Claiuitla. a convie- 
 lion was had .ui an inl'orination '* tlnit one C. S. nnlawl'ully did 
 cari'v ou the husiness of insnranci' other than lil'e. lire and inland 
 marine insurance, that is to say, the husiness of accident insurance, 
 (Ui lichalf ot' the International Fralei'ual Alliaiiec, an insurance 
 conijiany within the meanini;' ot' si'ction '2. chapter 1l*4 oi' the 
 IJevised Statutes of ( 'ainida, without permissiou ohtained fi'om the 
 Minister ol l^'iinnicc and lieeei\H'i'-( ieui'i'al of the I)iunini(Ui of 
 (■anada. and without the license require<l hy law in that ln'half.and 
 ciuitrary to the Insurance Act, Revised Statutes ol' Canada." It 
 was held, on a motion I'oi' (U'diu' nisi to ([Uasli the couNictiou. thai 
 the scheuK,' o!' the associniion was not (UU' of •'insurance of ihi- 
 lives of the niendiers exclusively,"" hut was a scheiue nf accident 
 insurance. Also, that ihe niendiei'ship fee and receipt therefor, 
 which was ai^recd to he accepted at any time as paynuiit /im hiiilit 
 lor joininir W'^'-^ to he paid to si'cure heiu'lils, was a [ireminin 
 within s(>ction 4!' ol the. In>urance .\ct of Canada.' 
 
 26a. Exemptions under section 43 Ins. Act of Canada. - 
 
 Si'ctiou h') hasiieen similarly inferiireled hy the |)ominion Dcparl- 
 menl of Insurance, on Ihe occasiou ol'\arious assoeiatiiuis claimin<f 
 the exem|itioii therein contained. The kind of hu-^int'ss under- 
 taken, as well as the constitulion of the associalit ii itself, deter- 
 mines whether a jtarticular association has the iieuelil of the 
 exem|ition. Thus, for example, where tlu' purposes of tlu' e(U'pora- 
 tion included temporary aid ami assistaiu'c to Ochlfellows holding- 
 
 1 I{. S. ('., i-h. 121, ss. 1, 1:1. -^ Sinltli on C'ontrHclH, 'S^\. 
 
 ' IVrry v. Newcu^tlc Dist. Miit. Kin- Ins. (\i., ,S V.C. R., '.W.\\ Alkins v. .lupo, 
 1,. H., 2 (". 1'. I)., .17.") : Andivi! v. Fletcher. H T. !{., 2(1(1 ; ("ope v. Howliiiuls, 2 M. & W., 
 lll». * lU'gInu V. SUvpleton, II. C. .)., C. \ Div., Feb. i», IHitjl. 
 
 ill 
 
 '^^ 
 
 i 
 
46 
 
 INSURANCE LAW OF CANADA. 
 
 m 
 
 c«.'rtificiites of membership in tlic assoeiatioii, in cane ot temporary 
 or pornument (lit<ability rl'^^^lltill_i>• from accident, the aHsociiition 
 was held to be an accich-nt association, and on that n-rou!ul not 
 within the exemption. In order to cUiim the benelit of section 43 
 of the Insurance Act of Canada, tlie association must be engaged 
 in the business ot life insurance only, and nf)t in the business of 
 accident and life or marine and life insurance.' 
 
 The constitution of an association comes into (piestion when 
 it is asked : Is this an as.sociation for the purpose of life insurance 
 formed in connection with "a society or organization for fraternal, 
 benevolent, industrial or religious purposes, and exclusively from its 
 members," and which 'insures the lives of such members exclu- 
 sively?" For an association is not within section 4-3, if it is incor- 
 porated without reference to, or without the authority of, or with- 
 out connection with, the association among whose members it 
 expects to do business.- 
 
 8o far, therefore, as the Insurance Act of Canada is concerned, 
 the several associations above named, and all others of a like char- 
 acter, cannot legally transact insurance in Canada without first 
 complying in all respects with the provisions ot the Insurance Act 
 and procuring the necessary license or certificate of registration 
 thereunder. 
 
 But any of the above associations, if in other respects within 
 the [trovisions of the Ontario Insurance Act, 1897, may obtain 
 registry as a friendly society.'' 
 
 Under section 37 of the Insurance Act of Canada, Canadian 
 assessment life companies may, at the discretion ot the Minister, 
 on report of the Superintendent, approved by the Treasury Board, 
 bo exempted from the operation ot certain sections of the Insur- 
 ance Act of Canada. Among the provisions from which .such 
 companies may be exemi>ted are those of sections 4 et scq., relating 
 to licenses and deposits to be made before the issue of license. 
 
 ' See Report of Superintendent of Insurance, ISlMt, p. '.Vi, ir The Oddfellows' 
 Fniternal Accident Association ; ir Preferred Masonic Mutual Accident Associa- 
 tion of America. 
 
 - See the definition of " l)ranch " in Ontario Ins. Act, IH!)", sec. '2, ss. l.T ; and see 
 Report Superintendent of Insurance, 181H), on The Oddfellows' Fraternal Accident 
 Association ; North Western Masonic Aid Association ; Preferred Masonic Mutual 
 Accident Association of America; United .States Masonic Benevolent Association 
 of Council Hlurts, Iowa. See also State v. Citizens' Heneflt AssocLitlon, ft Mo. App. 
 1(J3. 
 
 ■■'■ Hunter's Onl. Ins, Corpor. Act, 180^^ s. 10, and Ont. Ins. Act, 18il7, (Mi Vic, c. ;t7, 
 s. (Kt, .ss. 2. 
 
NATURE OK CONTRACT — DIFFKRK.VT KINDS dV rXSURANCE. 
 
 47 
 
 26b- Societies registered under s. 38 may make deposits- 
 
 — Tlie Ministi'i-. under rtcction :>7, may in his discrotiou oxciiipt 
 iirtsessmi'iit litb t(>mpanio.< from tlic provisions ivtcrrod to in the 
 priH'e<lin<i|; [>araj^raiili, Imt there is notliiiisi; to [H'ovent him from 
 refraininii' from tlie exiM'eise of such diser(;tion, or. if such discre- 
 tion lias hccn already exercised, from withdrawing- the exemption 
 with resitect to such of the provisiidis as are in their nature api)li- 
 cahle to companies of tliis descrii>tion : and there is nothing in the 
 provisions requiring a deposit which renders it inajiplicahle to sucli 
 companies. On making a deposit, a license would iss"".e to tlic 
 compan}', and it would he sclieduled as a licensed company, and 
 not as a companv registered under section 38.' 
 
 27- Accident insurance — Although accident ii\surance has 
 heeii stated hy some to l)e a form of life insurance, antl to he 
 governed hy the same principles of law. yet from tlie fact that the 
 very nature of the contract is, as its name implies, hased on 
 '' accident," it might with as much and perhaps more reason he 
 classed among fire and the numerous other forms of insurance the 
 foundation of which rests on chance, and in Avhich one party to 
 the contract, the assured, fulfils his ohligation at the heginning of 
 the agreement I)y paying the premium stipulated for. while the 
 other party, the company, may perliaps never he called upon 
 to nuike even the slightest return. Tlie only reason, there- 
 fore, why accident and life insurance have heen held to he- 
 long to the same category seems to he that in hoth cases the 
 pecuniary value, as it were, of human life is involved. In lite 
 assurance, however, the return of the capital for which the annual 
 premiums are the consideration is a certaintv, it heiui;' mcrelv a 
 ([Ucstion of time, while in accident insurance a person may carry 
 and pay for a policy a whole lifetime, and neither he nor his heirs 
 may ever receive the equivalent or any portion of tlie monc}' thus 
 paid to the com[iany. The element of chance plays as great a role 
 in accident as in fire and other kinds of insurance, and in this 
 respect accident insurance really is not a form of life insurance, 
 liut fundamentally difierent from it and more akin to tlu' other 
 forms of insurance. Like the latter, it is a contract of indemnity 
 hetween two parties, according to which'one party, in i-onsidera- 
 
 1 Per R. Sc(lK«-ick, y.C., Dej). Miii. ot lu^lici-, Nov. lilth, IHiX) ; Report of Supt. 
 of Ins., 18!)1 ; anil hee lis to deposit by frienu'v soiiutics, Out- Iii-s. Act, l.Si>7, (Ml Vic, 
 c. :i(i, -s. y.\. 
 
48 
 
 INSURANCE I>AW 01' CANADA, 
 
 tioii of tho payment ot' a certain amount of money, called pre- 
 mium, engages to iTulemnify tlic other ui) to a certain amount 
 (itipulated in the policy, in the event of bodily injury or deatli as 
 tlie result ot accident. 
 
 27a. Definitions of accident — In Ontario, in every C()ntract 
 of insurance against ari'ldcnt or casualty or disahility, total or par- 
 tial, the event insur.'d against i,s deemed to iiu-ludc any bodily 
 injury occasioned by exti'rnal t()rceor agency and eitlu-r happening 
 without the direct intent of the person injui'eil or haiipening as the 
 indirect result of his inli'iiiional act. such act not amountitig to 
 voluntary or nt.'gligcnt cxi^osure to unnei'i'ssary danger.' 
 
 In (inebcc. a t'ortnitous event is one which is untiirescen and 
 caused by superior force wiiich it was impossible to resist. -' 
 
 Accident has bcni dt'iincd in the rnilcd States to be any 
 unexpected I'Vi-nl wliieb l!iiii[iens as by ehance i)r which does 
 not take place in the .u'dinary course ol things.' In at'cident 
 insuraiUH' propei'. •• ai-eldent '" means a liodily injury ha[i[»ening 
 without tlu' direct intent ot' the [lerson injuri'd, I'ven though it be 
 the indiriH't re-nlt ofjiis iutcntioual act. It, thei'ci'ore, in> Indes an 
 injury ii»tentionaily inllicied by another : also, an in)ury that tiie 
 negligence of the person insured cmil riliuled to piMiluce.' The 
 meaning of the lerin •"accident"" is fi'e(|nenlly restricted in insur- 
 ance contracts. Tlins ii i> usual to provide for insuranei> against 
 injury occasioneil by "external violent and accidental lut'aiis," and 
 to I'xeept " intenti(Mial injuries intlieted by the insnre(l (U' any other 
 person." and also injuries happening i'rom " xolnntary exiiosnre to 
 uniu'cessary ilangcr."" 
 
 In Ontario, howevei'. noxariaiu'c from tlu' obligat ion or lia- 
 bility of the company as set out in tlie above clause is aljowi'd.' 
 
 Tiic Supreme Court ol California has deeme(| it settled by 
 till' autiuu'ities that •■accident "" in these policies must be givi'ii 
 its popular mi'aning: that is. a I'asmilty, something out of the 
 usual course of events, and which happens suddenly and unex- 
 pectedly, ami without any design on the part of the person 
 injured. They, therefore, held, in a case where tiic I'vidi'iu'c 
 left it doubtl'nl as to whether the death of the insured was 
 
 1 Out. Ins. .\cl, 1SI)7. (HI Vic, c. ltd, vi. 1,V.'. ■ C. (', I,. ("., 17. ss. 'li. 
 ■' Norlli Am. ("o. v. MurroiiKlis, (il", I'n. St., |;i. 
 
 n'ooUcoti l-llc Ins., Til; Mut. Ace. Ins. Ass. v. Harry, i:tl 1'. S., loa. 
 ■ Out. Ins. Act, lS\)'i, OtJ Vic, c. W, si. 15:'. 
 
NATIHK UK CUNTRACT — DIFKKRKNT KINDS OF INSURANCK. 49 
 
 I'iiiisrtl l)_v ii fall or liy a blow struck i»_v a third person, tha! in 
 oiLlier rase, the death was causod by '• areidiMital means'" witliin 
 the fjoiieral toriiw of the poliey. They also eoiistnu'd the prcN i>ioii 
 that the iiL-iirance rshould not extend to any eaust' of deatii unless 
 the claimant under the policy should estaldish, by direct and [losi- 
 tive proof, that the death was I'aused by external violence and 
 accidental means, and was not the residt of desii:;!!, either on tiie 
 part of the iiisuri'd <^v of any other iierson, to merely state a- a 
 condition that tlie death shall not be caused by the act of one whose 
 desii!,-n was lo cause death by the act, and did not include eveiy 
 case where a Mow. not intended to kill, unfortunately and un- 
 desiirnedly produced death.' An accident insuraiieo, with the pi'o- 
 visicui that till' injury shall l)e oi'casioned Ity •■ external '" c.inses, 
 has bei'ii held lo cover an injury to the spini' caused byliltinija 
 heavy luirilen in the course of business.- 
 
 Aecordiuii' lo (iriswold.'' ai-ci<Ient iiisui'aiice. as the name indi- 
 cates, is a contract ol' imlemnily lor injuries to th.' person. ari-iiiLC 
 from juirely accidental causes only, ami of wliicli the body, as a 
 rule. >liall iiroent >ome visiiile siiiMi. I'lidei' the clauses i>l the 
 policy the proximate cause of <leath or injury must l)e the result 
 ol' exierna!. violent, accidental causes, without contril)Utive iieu:li- 
 ii'cncc or \(ilunlary cxposuri' lo uniu'cessury ilaii!j,'er ov peril by tin* 
 insured. 
 
 lie detiui's accident as an event, the occurrence of which is 
 unexpecti'(| and uncommon; the iiappeniiiij: of which i.> without 
 the coneurreiicc o\' the will of the person by whose a^'eiiey it may 
 be caused ; without liuman au'ency. Tlii' l()unilation ol' all clidms 
 a,i;'ainst uiiderwcilers is aecitleiit : thosi' events which no liuman 
 providence could foiH'see. Hut accident is not that which happens 
 throuyli tlie defects or perishable nature of the siilijeet at risk ; or 
 ihrouijh the act or I'aull of I he owiici' of any properly.' 
 
 27b. What the term "accident" includes — Mi'. Hunter 
 jM tin Is out that ai'v'ideiits arc ol' two kinds : Kirs', those that befall 
 a person without any human aji'eiicy. as the killiiii; of a person by 
 lis^htniii!.;'. Here the elemental properties of liij,-litninLi,' and its 
 llasli are not caused or coiil rolled by human ai^'cney ; ImiI the fai't 
 
 ' liicli.iiilv \. Tnivflli'iN' Ins Cip (isiMi S7 Cat., ITd; iind s.c l{i|itr\ \, I'u.ss. 
 Ams. {\i , 2 llijf, liifc \- Ace. ins t'asi's, TilS, fur an iiiiiiniMMl disiw^sidii of " awl- 
 tU'lils" lis iiu'iuiI 111 tlicst' itolificN, 
 
 ■•■ llfluOl, «! •1|.">. !!(1. 'S."). 
 
iO 
 
 INSUKANOE LAW OV CANADA. 
 
 that the person was struck, liy uimitciitioiially placing liiinscll" 
 within its rantji', is as to liini an accident. Second, those that are 
 tlie rc-iiilt of ininian agency. The hitter are divi<h'(l as t'olhiws: 
 First, that which happens to a person hy his own agency, as if he 
 is walkint!; or rnnning an(i acciih-ntally falls ;• 1 luirts himself. 
 Here lie falls hy reason of liis agency in walking (U' rnnning; hut 
 lie did not intend to fall, lie did not foresee that he would tail in 
 tinii' to avoid it. The fall was (herefore accidental. Secoml, tiiat 
 which hcfalls a [)erson hy the agency of another person withont 
 the concuri'cnce of the hitter's will ; as whei'c one standing on a 
 scattolil unintentionally lets a l.irick fall from his haiul. and it 
 strikes a piu'son below. Here the dropping of the hrick, as it was 
 not inteiuled hy the lornier, and was nnforesiu'ii hy the latter, is in 
 the broadest sense an accidi'iit. Third, thai whitdi a person inten- 
 tioi\ally does, whcrchy another is unintentionally injured ; a< 
 where oiu' intentionally tires a gun in tin- air, and accidentally 
 shoots anotlu'i' jierson. Hero the act of tiring the ge.ii was inten- 
 tional, hut the shooting of the pei'son was unintenti(.nal. There- 
 fore on the part of the person tiring the gun the shooting ot' tht> 
 other would he acciilental, though not in as hroail a sense as in 
 the fornu'r case, hecanse soiim part of his aet was intentional ; hut. 
 as to the [)orson shot, it was hy purely accidental nu'ans. Fourth, 
 so also, [jrohahly, if one person intentionally injures an(uher, not 
 as the result of a rencontre or the misconduct of tlu' latti-r, hut 
 unforeseen hy him, su(di itijuiy as to the latter, altliougli inten- 
 tionally intlicted hy the former, would he accidental. Wln'ii the 
 injury is mil the result of the misconduct or the partici|iatioii ot 
 the injured party, Init is unforesei'ii, it is as to him accidental, 
 idthough intlicted intentiomdly hy tlie other party. In other 
 worcU, it is not regarde(l as essential, in order to make out a east' 
 o\' injury hy accidental nu'ans, so far as the injured party is con- 
 cerned, that the party injuring him should not have meant to do 
 so, till' if the injured jiarty had no agem'y in hringing the injury 
 on himself, as to him it was unforeseen, a I'asualty ; it seems 
 clear that the tiiet, liiat fin' deeil was wilfully directed against him. 
 would not militate against the proposition that as to him the 
 injury wiis hroiight (Ui ity "accidental means."' 
 
 Accident, theu, is a hodily injury happening without the 
 
 ' Ilulclir/ifl.'h Mxi'ciilors v. Tnivi'li'is Iiis. Co. nf llnrtfoiil iKy. C of .\|i|ii'iiIh, 
 ISMH), IS Ills, liiiw .lour., Hir>; H" \\y,, ;IIKI, 
 
NATfUl'; Ol' CONTKAi'T IHKI-KIIKNT KINDS (iK 1 NSi; UANCI'. 
 
 direct intent ol' tin- [" ison^injiirt'il. even tlioiiu'li it may l)i' tin- 
 iii.lirci't iH'.-ult of Ills intnitioiiiil art.' 
 
 An ucci<l(-'ntal liodily injury may include a series of events, 
 some of wliicli. il' ciuisidereil separately, would not Ite i-egarded as 
 iiceiilental liodily injuries." as wliei'e a wouml did not of itself 
 cause ileatli, Imt did cause the assured to fall into the watei-, wliei-e 
 lie was drowned. So also bodily disease may he a linU in the 
 cliain of circumstances, though such disease or condition of the 
 hodv itself' dot's not come within tiie detinition ot accident.'' In 
 this case, "di'ath from the eflects ol injury caused hy accident 
 Avas lield to include death from pneumonia eaus^'d by a cold tliiit 
 would not have lia{iponed Itut for the weakened condition of the 
 assured produccil hy the accident.' 
 
 27c. Exposure to danger — if' the injury hapi>en.s as the in- 
 direct rc-ult of the assurciTs intentional act, such act must not 
 amount to vohinlm'y or iiciiTiii'eut exposure to unnecessary dan_i:;<'r. 
 'i'he t'ollowiuii' have been lu'ld to be within the exception of' volun- 
 tary exjiosure to dan«i'er: — Drivinu' alone on a dark niu'ht in a net- 
 work ol railway ti'acks : ' crossing,' railway track on a dark, rainy 
 nin'lit :'' walkini;' on railway track;' crossinij; railway tra(d< in 
 front of a])proachinLi- train:" beinu' thrown while standiui; on 
 steps of a railway car in moti(Ui;" ridiui;' on the platform of ii 
 railway car. luit otherwise if' impelled by nausea or ovi'rcome by 
 li"at within the car;'" injury by liri'akiuu; of' rope by which assured 
 
 was esi'apm<i' li'oni pol 
 
 ice ( 
 
 ifficers." In Sehiieider v. I'i'ovident C)( 
 
 'Mutual .U'ciilriil Ahhoc. \. Hiriy. fill I', S., lilii, IJl, a ciisc of injury ciiust'il hy 
 jumpiii;^ from pl.iifoi'iu ; Norlli .ViiiiTicati Couip.iny v. IlMrroiit^lis, tiil I'a., St. |:i, Soi- 
 .IS to injury liapinMiiii^; wliilc t'\friM>.iu>; willi iuiiiaii fluli>, McL'urtliy v. 'fnivi'lt'ivs 
 Co., s Ins. I, aw .lour,, ;iOS; or wliilc lifiiiiK bunlciis, Miirliii v. 'rraveli'r.s Co,, 1 1'', &!''., 
 ."lO."). ■-' .Miillory V, Travi'lcr.s Co., 17 \. Y., :a, -2 liis. I,. .?., s;il», 
 
 ' Isiti V. Hallway I'as.si'UKerCo., !-. U., 22, i). H. 1)., oiU. 
 
 '."SiM' also as to apoplexy ri'sullinu: from in.jiu'lcs, Nalloual Hciicllt Assoi-. v. 
 (Jiauiiiaii, la" Iiul., '.iss. Si'i' also SiiviliT v. Travelers I'o., 7 Ills. 1,. .lour., 2^ ; Sin- 
 elalr v, .Marilime I'asseimers Co., ;i K, iV It., I7si. in wliicli il was hclil thai snnsli'oke 
 was not an aciiileiil ; so also Dozier v. I''iilflily >V Casualty Co., L'tl Ins. I,, .four,, 7ltt 
 
 " Neill V. rravelers Co.. I'j; ,S. C. U., ."m. " 'I'ravelers Co. v. .loncs, .SO (in., ")II. 
 
 " 'ruUli' V. Tnivelers Co., i:tl Mass,, I7,"i. 
 
 "t'ornlNh V. Acolilenl. Co., 1,. K.. S\, i). I!, I)., I."))!. 
 
 " Hox V. Kail way I'as.seiiner C"(i,, ."ill Iowa, (iill. 
 
 '" Miirx V, Travelers Ins. I'o., IS Ins, I,. .lour., 727. 
 
 " SlnilVer v. Tr.ivelers Ins. Co.. Ill Ins. I,, .four., •.N,"). See .also Tucker v. Mutual 
 Iteiicllt Co., iV) Hull,, ."ill; .National Hoiielll .\ssoc. v. .lacks. m, 111 111,, .VIM, a c.ise of 
 ileal 11 in course of employmenl ; .\lair v, Uailway I'lLSHUtlHt'l' Co., :I7 Ii. T. It,, '.i't*\. 
 
 >'2i Wis., 2\ 
 
 ii 
 
62 INSl'RANOE LAW OF CANADA. 
 
 exception w;is liold not to iiic'ln«k' iiijui'y wliile gi'ttiiii:; on train in 
 motion iit a rate of 9i)oed less tlian tliat of a man walking ; ' nor 
 does it iiK'liide death from stepping from a train through a hole in 
 a bridge.- Whether the assured voluntarily exposed liimself to 
 unnecessary danger is a (piestion for the jury,' and in cases wliere 
 the defence is set \ip that the act iif tlie assured amounted to 
 voluntary exposure to unneeessary danger, the liurden of proof is 
 on the insurer.' 
 
 27d- Employers' liability insurance — Wliih' accident in- 
 surance had its oi'igiu in the i<lea of securing a person fnuu pecu- 
 niary loss he might sustain as a conseipionce of accidental injury 
 to himself or to protect his family in case de^th should he caused 
 hy siich accident, it was soon tound that the sanu' plan might willi 
 ad\'aiivage he extended. 
 
 Ill view of the uunitTous decision^ reeentiy rendered holdiui:' 
 employers ol' labor resi»nnsiiile loi- injurit's susiaiiu'd by tiieir em- 
 ployees and the great risk incurred hy the eundoyer. who was I'x- 
 posed to heavy losses at any lime through accidents happening to 
 liersoii> in his I'liqiloy. and this wilhoui any wilful neglect oi' care- 
 lessness on his [mrt. it seemed (udy natural to attempt a transfei' of 
 this lialiility to the broad shouhlcrs of an insurance company, as tlu' 
 carrying ol' such a risk was evidently one of its legitiimiti' func- 
 tions, and lliiis it was not a-very great step fnua persomil aceideiil 
 to employers" lialiility insurance. 
 
 'i'liis kind of policy has also been sulidivided into several 
 classes to meet ditferent recpiirenu'ids, but tin- main point in all ot' 
 them is that the C(unpany takes the place of the employer in the 
 event of accith'iit to any ot' his employees : it relicvi's him Iinuu all 
 pecuniiiry liability in cases where he is either justly or unjustly 
 held responsilile for danuigcs (Ui acecumt ol' pcrsoiuil injury, and 
 also substitute-" itself in all litigaiions brought agai.ist him for the 
 ri'covcry ot'siich damages, hears the expenses of legal proceed ing,--, 
 ainl in every respect takes the place id' t he employer. 'I'lu' com- 
 piUiy woidd, thei'cfiU'e. also be entilled to any redress llu' assured 
 
 I S(.'i' also I'rovjdi'iit Co. v, .Martin, :!:i Md., :U() ; t)ut see Niiiiciilkld \. Musmi- 
 tlmsotts Mat. .Vir. Ash., 'Jd liiN. Ji. .1., 7H1. 
 
 - Hmkliiiril V. Triivflurs Co., l(»;i I'u., St. !ilW. Sue Hi'yiiolds v. Ki|uitalilr Acci- 
 dent Assoc, 17 .\. Y., St. IJop. M;t7, hh to in.jiU'V from li^tlll^' or over i \crlloii ; ."Sloiic 
 V. V. S. Ca>\iull V Co., Ml N, .1., 1171, (ik ti< fall from iiiiildliin. 
 
 -'Cottcii V, CiisiiallN it Fidclily Co., 2(1 Ins. I.. .1,, S. 
 
 * Krconian v. TruvckTs I'o., Ill Mass., .')72. 
 
NATURE OF OONTRACT— DrFFERENT KINDS OF INSURANCE. 
 
 53 
 
 ■'A. 
 
 f.1 
 
 
 M 
 
 ^' 
 
 niiyht have aijainst anyone directly or indirectly rospon.sible tor 
 the accident, and would in su(di a case he subrogated in the rightti 
 lit' the employer. 
 
 Tlie extent (if the company's liability is of course detinitely 
 stated in the policy : it may be limited to the legal responsibility 
 i>t' tlie poliey-hdlder, tir it may inchnle all and every accident met 
 with by his worknu'u ; diiierent trades and circumstances or per- 
 sonal int'linations may reipiir*' diiierent methods, all of which, 
 however, are merely ditlerent shades of employers' liability insur- 
 auee iind a matt(>r of detail to be arranged between the two con- 
 tracting parties, and according to which tlie premium payable by 
 the applii'iint is regulnted. Both the premium and tlie indemnity 
 are as a rule Itased upon an estimate of the annual wages paid by 
 the employer. 
 
 If the insurance is intended to cover also accidents for which 
 no compensation could ln' ri'covered from the employer, tlie latter 
 often has a joint policy issued to protect himself and his work- 
 men at the same time : in such a case the pri'mium is gi'uerally 
 jKiid in lull liy tlie employer auil the proportion due by the eni- 
 ]iloyees deducted Ironi their wages in small instalments accoi-ding 
 to arnuigenieiit niiide with them. 
 
 The idcii of accident insurance has licen exteiideil further to 
 pro\i(lc |)rotectioii fi'oiu claims tor ilamages on account of acci- 
 dents happening to ]persoiiN not necessarily in the employ ot' tlu! 
 insured, Init through a detectivi' state of property belonging to 
 him. as in the ease of [)ersi>nal injury caused through an accident 
 to an elevator. 
 
 
 4 
 
 i 
 
 27o. Elevator accident Carelessness of employee Em- 
 ployer not liable — 'flic plainlill' claimed .S21-J.r)i) for (lamas'-cs 
 which lie allcLi'cd he had siitrered in conse(|iiencc ol' an accident, 
 of which lie was the victim, on the Sth .August. 1S!I,">, while eiii- 
 ployeij ill (lefemlaiit's liC'toryand acting in discharge ol' his duties. 
 He ullegcil t hat the accident occuri'eil ill cMiiseipience of the elevator 
 being in IkhI •■oiiditinn, to the knowledge of lefeiidant. The 
 del'ondant contested the action, alleging that he was in no wav 
 responsible, and tiiat I lie acc.iilent occurred Ihroiigh the cari'lessiiess 
 of I lie plaintitl. The court held, that it apueare(| from i he evidence, 
 thai the accident in ijUe-iion could iioi l)e attributed either to tim 
 liad condition of thi' elevator or to ait\ defect in it, and that it 
 
"^■J 
 
 54 
 
 INSURANCE LAW OF CANADA. 
 
 resulted I'rdin the carelessiioss of tlu' [iliiiiitift liinisclt'. Tlu' action 
 was, therol'oro, dismissi'd. 
 
 All aotion in warranty liad hocn. ImweviT. instituted lu'llic 
 dett'iidant against tlie insiiraiu'e company, witli which hi' liad lon- 
 tractod to protect him from loss throuu-h accitlcnts from his em- 
 ployees. The com[iany lunl insured the plaintitt against acci- 
 dents tor which he might he civilly rcsponsihlc to the work- 
 men employed hy him. The dercndant in wari-anty pleadeil. 
 that the plaintitt hatl fori'eited the heiietit ot' the insiiranee. 
 inasmuch as he had failed to comply with the conditions of the 
 contract. The court held, that as the action of the principal plain- 
 tilt, Lefehvre, had heeii dismissed with costs hy the /indgment 
 noticed ahove, and, i>eing thus dis[)osed of. there could l»e no occa- 
 Hioti for a demand in warranty, hut tlu' ipicstion ot liahility for 
 costs n'maiiiiMJ to hi' settletl. As to this [loint the court held that 
 the [irinciiial action was hased on the i/iiii.'^i ilellt charged against 
 Ramsay, and the action in warranty was hased on a contract he- 
 tween the principal defendant, now plaintitt in warranty, and the 
 defendant in warranty. These two demands arose from ohligations 
 whieh were entirely distinct and had no connection. The court 
 was of opinion that the present jihiintilf in warranty should have 
 instituteil a distinct action. I'lidcr the circumstances the princi[ial 
 plaintitt could not lie condcmneil to pay the eo>ts of the action iii 
 warranty, and, therefore, the action in warranty was dismissed 
 with costs against the [ilaintilt iii warranty.' 
 
 28- Burglary insuranoe — One ot' the more recent kinds ot 
 insurance against certain contingencies is called '• burglary insur- 
 ance,'' whicli is also a contract ol' imlemnity, one party, tlie <'om- 
 paiiy, conti'acting to indemnity the other party, the insured, upmi 
 payment of a certain premium against loss he may sutler hy losing 
 through hui'glai'V certain siiecitied property within (he tei'insof the 
 policy. 
 
 The following remarks of M r, .1 ust ice 1 )ugas, in I he very receii t 
 case of .lohn .\. Grose, prose, ■utor. r.v. .John 1». Wooil. cm the 
 natui'c of hurglary insurance, are ol interest : 
 
 >' I have liefiU'c uic a case of. lohn A (Jrose, again^t John !>. 
 Wood, who i< sued tor havii'g issued, (Ui liehalf of a company, a 
 
 I Iiefi'l)vn' V. Wimsiiy. S, l\, Moiii iciil. II .liiii., |S!)7: Tilliir, .1,, iV Itiiiiis.iy v. 
 Miimif. Ills, ("(),, ill, mill si'c iiiili'x, i;' iiifiii, WliyU' v. ^tlUllll'. Arc Ins. ("ii., lidO. 1!,, 
 
'•■m 
 
 
 fi-'^^ 
 
 NATURK OF CONTRACT DIl'FKHENT KINIlS OF INSURANCH. 
 
 policy of instiruiicc witlioiit u licuiisc. Section 22 ol' tlie Insur- 
 ance Act of Ciinadii reiuls, tluit every jicrson who delivers any 
 polic}- of insurance or interim reeeipt, or collects any premium 
 or carries on any liusincss of insurance on behalf of any lifj, 
 tire, Ol' inhniil marine insurance company, without such license 
 as aforesaid, shall, nn summary conviction thei'coi' l)efore any justice 
 of the peace, oi' any ma>i'istrato haviiii!: the powers of two justices 
 of the [leace, for the lirst offence incur a pemdty of not less than 
 $20, and not more tlnin >?.')0, ami in delimit \^'ill he imprisoned in 
 jail. Tlicrc is a certain limitation in that >ection which due-; n()t 
 exist in virtue of an anu'iidmcnt under section 4!*, which says that 
 no company or [lerson sliall issue any policy other than a life, tiro, 
 or inland murine insuran<'e policy, or receive any [iremium in respect 
 thereof, or carry on any husiness of insuraiu;e other tlian life, tire, 
 or inland marine insuranci', without first ohtaiiiinn' a license trom 
 the Minister to carry on siudi husiness in Canada, etc. ; and suli- 
 section tive of the said article 4!l, adds that every company or 
 person carryiui!^ on such business without obtaininjij such license, 
 or after such liciMi^' is ri'voked, or nejyiocting or refusin<f t>> make 
 the statenu'iits rt'([uired, and every person who delivers any polii-y 
 of insurance or collects any premium on beiialt of such company 
 or person, shall rt'spcctivcly incur tin- pi«nalties mentioned in the 
 21st and 22iid sections of this .V.'t. 
 
 " I thouffht at iirst that there mii;'ht he an ohjeetion taken iVom 
 the liict that it is the vice-president ol'thi' Holmes Klectrie I'l'otcc- 
 tion Comimiiy who had been sued, and not tln^ i'om|)aiiy itselt'. hut 
 I see that by this subseclion of articli' 49 there cannot be any 
 doubt that anybody who delivers a policy on ludialf of such roni- 
 paiiy doinii' such a biisiiiess. and who has not tlie license reipiircd 
 by law, becomes ri'spon.-ible under section 22 as if it was the com- 
 pany itself. 
 
 '• \ow all the t'acts ai'c admitle(l in ibis ca-e. i)ut I be dcjeiidan', 
 lias raised tlic point tbal this Lniarantec iriven iiy Wood on behalf 
 of the liolmes Klectrie Protection Company, i/imited, is not a 
 contract ol' insurance in the sense ol the law, and tiiat, therefore, 
 that company \va> iioi oblii^cd to take out a license under the sce- 
 ti(Uis as cited. Ainon!i>t other autlnu's hecitcd Kauri' and Ili'rmaii, 
 who ii'ive the ordinary delini! "on of whul an insurance is, and which 
 deiimlion is pcrlectly well known. 
 
 '" All insurance i> a contract by which one parly undertakes 
 
 il 
 
5(; 
 
 INSURANCE LAW OF CANADA. 
 
 to pay a cortaiii iiinoiiiit of nioticy in the ovciifc of certain casiialtios; 
 tluit is. Olio l»iiitls liinisolf to pay a certain amount wliii-h is fixed, 
 and the other hinds himself to pay an amount if such and such an 
 event should haiiiieii. Tliere are different chisses of insurance, 
 those aurainst fire, life, storms; and there is even an insurance 
 a<;aiiist the hreakins^ of irlass — that is, tlu' proprietors of houses are 
 insure(| a.<i,ainst the hreakiny of lar!:,'e ti'lasses in their premises, 
 either accidi'utally or maliciously. Lately an insurance, which was 
 not known in Franci', and which has lately heconu' known in the 
 I'^niteil States a:.d Canada, that is, insurance aj^ainst huru-lary, 
 has heeu added to the list of the different insuranci-s known until 
 then. Therefort', tliei'c is no douht that, accoi'dinu' to out' law 
 now. there is the insurance au;ainst the di>pi'edations which may he 
 cominittcil hy hiirii'lars. Mr. Grose rcpresi'nts a company whicli 
 has liecn tluly licensed ami exists in accordance with the law. lie 
 accuses Wood, who is the vice-president of the TFolmes Electric 
 Protection (\im[)any. ol' havinu; delivere(l a policy of insurance 
 issued hy tl'.c ITolnu's Klccti'ic Protection (lompany. Limited, that 
 company not hein.i!; licensed in the propel' way as onlered under 
 tlicscctions of the Insuranci' Act already tjuoted. The aii:reement 
 reads a> follows : 
 
 •• • This aixrccmciit made ln'twetMi the IFolmes KIccti'ic Protec- 
 tion ("omi)aiiy, Iiimitt'<l, parly (d'the first part, and Sim[)son, Uall, 
 Miller i^- Co.. parties of the second part, witnesseth that the party 
 of the first part, in consideration of the payment hereiiiatter men- 
 tioniMl to lie made hy tlic jiarfy of the second part, auTce to attach 
 to store No. 17-in Notre i>;ime street, city, tlieir system of protec- 
 tion uii'ainst iiuru'lary hy means ot wires and nttachmeuts. siipply- 
 iiiti' the necessary instrument-;, etc' 
 
 •• '['he contract tjjoes (Hi to adtl what should i)i' done siipposiiiij^ 
 sonic 111' these accidents siioiild happen. 
 
 '•This a_u,'recment is made for a [icriod ol' three years, to date 
 from the :ii'd Oclidter, l><!i I. 
 
 "This is all that is mentioned in tiiis nLi'recineiit. 1 may 
 rMV 'hat il' 1 can sec ihroiin'h it, this i> a nicims which has l>eeii 
 adopted with llie hope oj' csca|>ini;- tlie dispositions ol' the hiw so as 
 tu make il. on the face ot' it, doultl fid iis to whd her t liis is the ri*al 
 policy or not, hecau^e we do not set' thai in this first writiii;.;', in 
 this first contract sii;-neil hy the irolmcs Mleclric Protection Coni- 
 paiiy, that they fix the amount whicli is to i>e paitl liy the company 
 
 1 
 I 
 
NATURE OF CONTRACT — DIFFERENT KINDS OF INSURANCE. 
 
 57 
 
 m 
 
 111 the tn-ciit of there ln-inga l)iirii:l!iry committod at Simpson, lErtll, 
 Miller & Co.'s pliu-o of Imsinens, hut the only tliini;^ is that they 
 tindcrtako to superiiiteiwl or protect the huihlintr in (piestion upon 
 Simpson, Hall. Miller & Co. jiayinir -SIO per month duriiiij: the 
 eontraet, that is. durinu- three years, liiit there is another writiiii^-, 
 made on the same day, that is. the <!th o\' Au<>-ust. IS'.U. This 
 writing is a^- follows : 
 
 " ' 3fessi:9. SiiHi'SviK Jftill, MUhr if- C'., ritij. 
 
 '• ' (iKNTLKMEN. — 111 eoiiiieetioii with eontrai-t sio-neil this day, 
 it is agreed that we will make good any loss eaused hy hiirglary 
 while vour estalilishment is under our pn^teetiou. in a sum not to 
 exceed' $-2,r)00. Yours truly, 
 
 '• 'irnlmes Electric Protection Co., Ltd., 
 
 '•'.I. 15. WiK^D, Vii-e-Pre^)ilei)tS 
 
 " Tt is pretended that this is only a contract ot' guarantee, 
 and that there is no iiisurauee in this husiness. I cannot see that. 
 Referring to tlie very authority whiih has heen cited hy de- 
 fendant, the contract of insurance has no particular t'orm, a simple 
 understanding verhally is sutlicieiit ; an understanding in writing, 
 which contains all the ingredients of a contract or policy of insur- 
 anee generally, is, therefore, exactly the siune as a policy ot' insur- 
 ance issuetl in the wcll-knowii I'ni'iii. Hci'i'. in this first contract, 
 Messrs. Sim[isoii. Hall. .Miller v^ Ci>. iiiidertakt' to pay $10 a month, 
 though r think it has Iieen estahlished that the whole was for §l;")(). 
 At all events, taking this written contract, they have to pa}- jflO a 
 montii (luring three years, which makes §120 a year, and they are 
 protected against any casualties (U- loss cominitted at tlu'ir store, hy 
 its iicing hroken open ami rohheil hy hurglars. it is trms that in 
 this first contract the irolmes tVuupany do not say what they 
 will do supposing this slioiilil haplieii, hut in this second contract, 
 which is a siip[ileiiienl Id the first (Hie. there it is <taleil thai in the 
 t'vent ot such easiialiie.-, and referring In i he tirst ennlract iiy which 
 they agree lo pay a certain aniuuiil, that tlu'y (the Holmes Com- 
 pany) will pay ail aniount imt to lie uiiU'e than Ji!-..")00. That is, 
 if you [ii'ovc thai ynii liave lieeii roiihed of that amount, we will 
 give you !$'2,.')00, or in olher words, should it he pro\-t'd you liaxc 
 siitlereii thi,- |o>-, we will pay you the damage which yon may have 
 sutfereil. This is a sim|ih' eontraei. and although in terms other 
 than thosi' generally used in jiolicies. yet it contains all the ingre- 
 
58 
 
 INSrUANCK LAW OK CANADA. 
 
 (lioi)ts of a jiolicy of iiisuraiicf with the |iayiiu'iits Hxcd at so much 
 a month, thai is, in tliis i-aM' .'5120 a yrar. Diifiiiif that tiinr do- 
 tiMuhiiits koi'ii tla' [larty iiisiircil ai,^aiiist any I'ohltc-ry wliirh may 
 take phici' at their e-talili^iiiiuMit, wliirh is dosiifiiatod, and sliouhl 
 io!?!< liaii['en, they un(kTtaki' to pay and roimhiirse thi' loss whicii 
 mii^ht be snfleivd thereby, [H'ovidcd it does not amonnt to mole 
 than ^2,r)0!>. This is not a sim^de contract of ii'iiarantue, hnt it is 
 a eontniet of insurance in the [woper form. 
 
 "I may aihl tlial this dis[)osition of tlie hiw wliicli reipiiivd a 
 license to lie taki'ii, is a matter of pulilic interest. The public is 
 iiifi'rested in seeinii'that those who undertake to insure, wliether it 
 is au'ainst tire, or whether it is life assurance, or against biirii'lary, 
 or whether it is against storms oi- in any other form ot insurance 
 which is admitted by law, the public is interested in seeing that 
 tliese companies havi' contbrmed to all tiie dis[»ositi')ns of the law, 
 this being security that tliey are in good staidiiig, and will be 
 able to fultil their engagements and obligations. The Minister 
 of .lustice issues the license, but he issues it only after he has seen 
 that the com[iany has com[ilied with all the re([uirements (d' the 
 law. and that the public is s\itHciently protected against loss. 
 
 ** 'i'lu'retbre, Wood is condemned to pay !^50 and costs or two 
 months" imprisonment. I would not [)Ut the full amount if I did 
 not consider it a matter of public interest, but in matters of [lublic 
 interest 1 think the highest penalty should i)e imposed.'"' 
 
 The learned judge was in error in stating that the .Minister of 
 .Justice issues tlie licenses ; all licenses under the Insurance Act 
 are issued t'rom the Fiiumce department, signed by the Minister <u- 
 Dej»uty .Minister and the Superinti^mU'iit of Insurance. It is to be 
 noted that the company on whosi' bidialf the dtd'endant in the 
 above case assumed to contract, was incorporated under tlie Canada 
 Comjianies" Act, and that un<h'r said Act a ccuniiaii}' cannot l>e 
 legally organized tor the [iur[>ose of ti'ansacting any form of in- 
 surance, that busiiK's< lu'iiig one ol those s|iecially ^'xcepted." 
 
 This judgment was aflirnicd by the Court ol l^uei'u's Bench, 
 at Montreal, .\[r. Justice Wiirlele, 30th Maivh, IS'.Mi. 
 
 In ren<U'ring /ludginent, Wiirtele, J., said; "The informanl. 
 on the ;!()ib day id' May. b^!HI, laiil an informalion against .bdm 15. 
 Wood, accusing him of having illegally delivered, as tiie \'ice- 
 
 Si'i' Hi'iioil (if Sii(ii'iiiit('iulciit lit InMiniiici', IS'.U. 
 
 I<i<'in. 
 
NATURK OK CONTRACT — hlFFERENT KINDS or INSli; AN( K 
 
 ri'fsidfiil !>!' the IIhIiih's lllcctrir I'mliTtioii ("uiii|iaiiv. to tlir tifiii 
 (if Siiiiiison, Hull, Miller & Co.. on tlic tilli ihiy ol Au<;u>t. IS'.'-I. 
 at the City of Montreal, a certain [>oliey of insurance. t:'uaranteeinii- 
 the iirni aj^ainst any lo.-s it miirlit incur tVoni liui-ii'lary. to the extent 
 of $:2,r)0(l. 
 
 '* 'I'he information was laiil undei' section 40 ot' tlie Insui'ance 
 
 Act, 
 
 as !•( 
 
 lilaecM hy section 1.') of the Act 57-08 V.. c. -JO. \vlii( 
 
 aniemls tlie Insurance 
 
 Act. This section enacts, that no conqiany 
 
 thiT than a life, tire 
 
 or person shall issue any policy ol insurance o 
 or inland marine insurance policy, without havinu' tirst ohtaiiied a 
 liceiisi' l'i-i)\n the Minister of Finance, and. t'lirtlici-, tliat every per- 
 son who so (h'livers any |)olicy of insurance shall incur a [lenalty 
 not cxcecfliiii!; .SaO ami costs, and not h'ss than S20 and costs, and 
 that, in detiiult of ])aynient. the ott'ender shall he liahlc to impri- 
 sonment, with or witli(uit hard lahor. I(U' a term not oxceediii;^- 
 
 liree nioi 
 
 iths, and not less than on'e month. Section ii of t! 
 
 Insurance Act i^ives jurisiliction to any two .lustices of the I'eace. 
 or to any Man'istrate. liaviui; the [lowers of two .lustii-es of the 
 reace. to t i-y any pei'son chai\ii"ed with tlie connnission of thi.- 
 otleiice, in a summarv wav. 
 
 Tl 
 
 !<■ case w 
 
 as heard hefore .iiidiiX' Du^'as. one ot' the -I 
 
 mlLl'e 
 
 lit' the Si'ssioiis of tlu' Peace, actins;" in ami for the District ol 
 Montreal, and on the 14th .lune. ISl'o, the deU'iidant was con- 
 victed hy him for having- coiiimittetl the otfeiice with which he 
 was charifcd, and was adjud,<!;ed i'ov such otfeiice to pay a line of 
 $50 and the sum of >f7.()() for costs, and it was further a<ljudi;'ed 
 that, in default of [laymeiit, the defendant should he imprisuned 
 ti)r the term of two months. The defendant thereiiiion appealed 
 to tliis Court from tliis conviction. 
 
 it ap[iears that the irolmes Klectric I'rotection ('<>.. Limit 
 
 en 
 
 or the [lurpose of [U'oteciin^" 
 I 
 
 was orufani/.ed and incorporateil 
 
 premises in cities where it carried on iuisiness, affainst lire am 
 hiii'i^lary, under a system ol protection hy means of wires and 
 attachments connected with its central otlice. and that. <in the tith 
 August, IMU, it eiitere(l into a contract with tin' firm of Simpson. 
 Hall, .Miller it Co.. hy which it was to attach its system of protec- 
 tion against tire and hurglary to their premises, in consideration ol 
 a monthly payment ot' !?)(). liir the term ot three years, from tln' 
 ;'.rd Octoher, 1S!>4. and that, at the same time, it wa> further 
 agreed helweeii the parties, in coimeclioii with the contraci >iL:ned 
 
IMAGE EVALUATION 
 TEST TARGE-k (MT-3) 
 
 1.0 
 
 I.I 
 
 1.25 
 
 it" 112,8 
 
 m 
 m 
 
 iim 
 
 IM 
 
 1.8 
 
 1-4 illll.6 
 
 'W^^ 
 
 7 
 
 Photographic 
 
 Sciences 
 Corporation 
 
 33 WEST MAIN SfREET 
 
 WEBSTER, NY 14580 
 
 (716) 873-4S03 
 

 Ua 
 
60 
 
 INSURANCE LAW OF CANADA. 
 
 that day, that the Holmes Electric Protection Company, Limited, 
 woukl make good any loss caused by burglary, while the estab- 
 lishment of the firm should bo under the company's protection, in 
 a sum not to exceed $2,500, The company, in theiirst place, agreed 
 to place tlu> wires and attachments forming their system of protec- 
 tion in the premises of the firm, but did not guarantee that such sys- 
 tem would remove all danger and risk of fire and Inirglary; then, 
 by the subsidiary contract entered into at the same time, the com- 
 jtany guaranteed the firm against any loss whicii might be caused 
 by burglary, to the extent of $2,500. These two documents were 
 then delivered by Mr. Wood, in his capacity of vice-president ot' 
 the company, to Mr. Whimby, the manager of the firm, and it is 
 admitted that, when they \' -v ^-o delivered, the company did not 
 have a license from the Mun^tor of Finance to carry on. in Canaila, 
 the business of insurin.i^ propcrrv against loss by burglary. 
 
 "On the other !'';)f\i!, t;ic y' ant '.'ontends that the contract 
 entered into was not a coutra.' insurance, but oidy a contract 
 of guarantee, wiiilc, on the other '.and, the respondent maintains 
 that the contract entered into by the parties was, in reality, a con- 
 tract of insurance. 
 
 " Article 2468, CO., defines the contract of insurance as a 
 contract whereby one of two parties undertakes, for a valuable 
 consideration, to iniK'ninity the other party against loss or liability 
 from rrtain risks or perils to which the object of the contract 
 may he exposed. The first party is the insurer and the other 
 party the insured. Now, in the present case the object of the 
 contract was the projjcrty of the firm contained in the premist's 
 described in the agreement, and the undertaking entercil into by 
 the c()nii)aiiy was to iinlenmity the firm against any loss which 
 might ncciir, during the existence of the contraci, by burglary. 
 The fact that by the contract the company were tu place in the 
 building an apparatus for the purjiose of giving notice of any 
 atlcniiits to burglari/c flu* i)remises docs not altiM- (he nature of 
 the undertaking cntere<l into by the company to indemnify tlu' 
 lirm fur loss by burglary. It merely lessens the risk ot'ilic insurcij 
 being robbed, and (he risk of the insurer of being called uiion to 
 imlenuiity the insured tor losses which might be so incurred, but 
 that is all. The monthly payment i/f $10 was the valuabK' cim- 
 sideration, both for the K'asing of the apparatus retpiiri'd tbr tliu 
 company's systi'in of protection and for the contract ot' insurance, 
 
NATl'RE OF CONTRACT — DIFFEKENT KINDS OF INSURANCE. 
 
 (il 
 
 " I hold that a t-otitract <»t iuHuraiifo was entered iiiti) between 
 the two jiarties. and tliat the two dctriinients delivered ]>>• Mr. 
 Wood to Mr. Whimliy constituted, together, the poliity evideneintr 
 the existenre ot" such eontrart ot insuraiu-e. As it is admitted 
 that the Holnu-s Electric I'rotection Co., Limited, had never 
 (tlitaini'd, and did not hold, a license from tlie Minister of Finance 
 when Mr. Wood, on its hchalf, issued and delivc'd the jiolicy in 
 (jiiestit)n, he is >ruilt\- ot' having violated the provision."* df Sec. 4'.' 
 of the Insuranci' Act, ami has incurred the penalties imposccl hy it 
 fnr such violation. 
 
 "He was, therefore, rightly convictetl hy the Judge of the 
 Sessions of the I'eaci' tor having committed the violation ot the 
 law of which he was accused, an<l proi)erly adjudged to pay the 
 sum of ^.jO as a tine, with $7.00 for the costs incurred, and, fur- 
 ther, to Ite imprisont'd for the space of two months, unless such 
 !«um ami costs shouM he paid. 
 
 "Tiie conviction is, therefore, continued, and the ap[iellant is 
 condemm'd to pay the costs of the a[(peal;"' 
 
 20. Various other insurances. — Am( igst the other forms 
 of casualty insurance, the most prominent are those covering dam- 
 age caused hy the Itreakiiig of glass, damagu done to vi'hides. the 
 explosion of hollers, the destruction of crops on the field (hrougli 
 hail-storm, and the ileath of domestic animals (live stock.) All nt 
 these are contracts of indemnity, in which the company Itinds 
 itself, U[ion payment of a stipulated premium, to make good the 
 loss caused to the policy-holder hy the impairmi'iit or di'struction 
 nf the oh)e<'ts insureil, within tlu' jicriod named in the policy. 
 
 29a. Definition of plate-glass insurance.. — The covering of 
 [ilate-glass from loss hy accidental hreakage. hut not from loss liv 
 tire, eartlniuake. or during alterations and repairs to tin' huilding. 
 A i>latt'-glass policy is not a co-contriliutor with a tire policy cover- 
 ing plate-glass.' 
 
 29b. NcKligenoe in replaoiner glass — Tu a \ cry recent 
 American case a casuidty comjiany insuri'd plate-glass in plaintitrs 
 laiilding. The policy providi'd that the company, at its option, might 
 reiilai-e tlu' glass or pay its actual value, and that, whenever neces- 
 sary, insured should, at his own expense, remove any woodwork, gas 
 
 > OrlHWold, 473. 
 
 
02 
 
 INSUllANOG LAW OF CANADA. 
 
 '\f. 
 
 tixtllr»i^^. or othor obstriu'tious to the !vplju!iii<;f of the ghisrt. The 
 I'ompiuiy iiotitied one 11.. with wliora it had a eontract for that 
 imrjiose, to replace phiintitf's broken <?hiss. 11. "s workmen fouiul 
 tluit tlie gas pipes interfered with the work, an;! n eirli gently 
 tletaehed two leuijtlirt in the i-ellar, ho that when the yas was 
 lii^hted in the eveninu; an explosion oeeurred which (laniau'ed 
 jilaintitfs property. Held, that the casualty company was not 
 liable for such neirliiijent acts.' 
 
 30. Fidelity insurance — Fidelity insurance, in its ordinary 
 sense, is the ijivinii^ of bonds to employers by insurance companies 
 to indemnify them aj^ainst pecuniary defaults of employees. Such 
 bonds are usually made for periods not to exceed twelve moni^hs, 
 and the bonds stipulate that the default must occur withii. '.lie 
 actual period covered 1»y the bond or within a limited period after 
 the exi»iry oi' the bond or of any renewal thereof. Usually the 
 period of grace does not exceed three months, 
 
 31- Title insurance under Pennsylvania statute — The 
 
 statute of Pennsylvania upon the subject of title insurance pro- 
 vides that " companies incorporated un<ler the provisi(»i)a of this 
 Act, for the insurance of owners of real estate, mortgages and 
 others intereste<l in real estate from loss by reason of defective 
 titles, liens and encumbrances, shall have the power and right to 
 make, execute and perfect such and so many contracts, agreements, 
 jiolicies and other instruments, as nuiy be recpiired therefor." One 
 whose title to real estate had been insured by a company organized 
 umh'r this statute, having lieen subjected to litigatii)n by reason ot' 
 the title he held, and conse(|uent expenst-, and loss of a sale of the 
 property, brought an action against the insurer for indemnity. 
 The insurer interposed as one of its defences that, as the convey- 
 ancing was done by the insured's conveyancer, the insurance com- 
 pany was not liable. The court held that this was not a good 
 defence to the action. The Judge thus declared as to the powers 
 of such companies : 
 
 •'This objection overlooks the fact, that the insurer insureil 
 the title as attempte.l to be conveyed by the deed from the 
 grantors, and mentioned that di'cd in the ]K)licy. This defence is 
 based on the notion that not only may title insurance companies 
 
 ' McCiiuloy V. I'Mdellty & I'm nalty Co. etal., N. Y. S. C, 'M Now York Supplo- 
 nii'iit, May U, IMM), 77U. 
 
 I 
 
NATIRK OK <itNTUA<"r — DIIKKIIKNT KIXUS uK INSfRAXCE. 
 
 (53 
 
 <lo coiivfyaiiciiiir. liiit that tlicy imist lie ciiiidoyotl to <l(» it, in 
 I'l'diT to hold tliciu on thi-ir imlicics. This is a ff'vat mistako. 
 TIk'V liave no rlulit wliati-vcr to do convcyanring, draw deeds, 
 write wills, or tlic like. Tlieir conilint in this respert is a usur[»ation 
 <tn the coinnionwoaith. No Act ot" Assenildv authorized them to 
 
 '11 t. 
 
 di> any sneh acts, and mi tliese days ot corporate uTeed it is wt 
 remind them that the law under which they are allowed to insure 
 titles, and to make such contracts, aijreemcnts, ]iolicies ami other 
 instruments as may he re'iuired theivt'or. authorizes them to make 
 
 and i»ert'oet only such contracts as may he re([uired to insure titles, 
 and not to make and convey them. The ai'i;nmeiit that, unless 
 they are perniitteil to draw deeds ami convey titles, they will have 
 none to insure, is as s[iecious as would l»e an arirument that a tire 
 insurance company should he allowed to make contracts to Imihi 
 houses in order to insure them. The coiiscipience (d' the usurpa- 
 
 tion is not only the diversion ot" their leiritimati- hiisi 
 d 
 
 ness troni 
 iwycrs and c(Miveyancers, hut the l>est school ot" tlie students ot" 
 hiw. the law of real esti'.te, is heinir destroyed. Knowledge ol" the 
 t'oundation otthe law and accuracy and pret'ision in the use of" law 
 lanifuaije is hecomini;' ohsolete. It is hail enouirh that siudi usurpa- 
 tions are tolerated without intert'ereiiee. hut it is much worse to 
 see till' denial of them set up as a det'"iice on a policy of iiisuraiiee 
 which the company is authorized to issue. and on which, as in this 
 case, it is clearly liahle." This rule was ijivoii as to damages in 
 such cases : "On the fpiestion of damatr''s, as this is a case of" total 
 loss of title, there is hut one measure to he ajiplied. and that is. the 
 
 value of the pn)perty lost. 
 
 Til 
 
 IS IS not a case of defective tith', or 
 
 an mcumhranee rt'ipiirinir removal, in which the insured would 1» 
 entitled to recover the costs and expenses incurred in <'iirin<; tin 
 defect or removinu; the incuinhrance." ' 
 
 ' (iuuiiT V. Solicitors' LoHii It TriiMt ("o. (IS'.lli, II I»a. Co. ("t., tKII. 
 
 . \ 
 
 I: I 
 
 I 
 

 CHArTER III. 
 
 }»OVVKKS OK rAl{MAMKXT AND TIIK LOOAI- LEGISLA I'lHES OVEK 
 srH.IKCT MATTEH Ol" IXSl'llAXCE. 
 
 32. Dominion no poweu to ai'iiioh- 
 
 ISK CONTIIACTS i:X(i;i'T SIUII AS ahe 
 SANITIONKII ItV I'UOMXflAI. l.i;<ilSl.A- 
 
 ii'Ki;. 
 :U. Doi TU1XI-: in i iik rsiTim.'^rAi'i.s. 
 
 'M. AlM'I.HAllOV IIK INSlliANt E ACr 
 OKlANAIIA AMI T NCONSIl I ITK )N AI.I TV 
 OK SOMi: OK ITS I'KOVISIOXS. 
 
 ;V\. Sri'KKINTKNDKNT AND INM'IU- 
 lOKS OK INSVKANt i; THKIK i'o'.\i;iis 
 AND DKi'lES. 
 
 ;{ii. .IriusDit rioN <ik I'Aiii.iAMKNr 
 
 DIM USSKD IN SlI'UKMl: icICliT AM) 
 
 I'liivv iiUNcil.. 
 
 'M. PnOVlNI K KXCI.USIVK JL'KISDIl- 
 TION OVKK I.ECISI.ATION RKCiKLATINIi 
 KAI.SK STATI.MKNTS IN API LKATION, 
 ETr. 
 
 :K UNioNsiiTrrioNAi. i-hovisions 
 
 OK INSTKANIE ACT OK CANADA HE- 
 (iAKI)IN(i EUKOIt IN Alii:, MISSTATE- 
 MENT.S, ETC. 
 
 mt. CoNTKAiT I)i;i:mi:d made in on- 
 
 ■I'AIIIO. 
 
 III. Arl'I.UArillN UK ONTAHIO KIIU 
 INSKKANlE Pol. lev All'. 
 
 32. Dominion no power to authorise contracts except such 
 as are sanctioned by provincial legislation. — Tlu- iiariiaiiioiit of" 
 till' Doininioii has no power to aiitlioriseuooiiqiaiiyotits own croutioii 
 or a t'oivigii company to make contracts in a province, except such 
 contracts a> the letrlslature ot' that [irovince may choose to sanction. 
 The Icicisiature may. It" it thinks proi)er, exchule ?uch corporations 
 trotn entering into contracts ot' insurance In the province altogether, 
 or it may exact any sccuiity which it nuiy deem reasonahle t"or the 
 pert'ornnince ol" the contracts. The artitlcial heing created hy the^ 
 t"oreign or Dominion charter is authorisi'd to nnike such contracts 
 as may come within its designated purposes, hut parliament grunt- 
 ing the charter can giw no privileges to lie exercise<l within any 
 ot' the provinces except with their assent and recognition, and it 
 follows as a matter of coursi' that these may he granted upon such 
 terms and conditions astiie provinces think lit to impose. Within 
 their respective limits each legislature is supreme and I'ri'e from 
 any control of the otlu'r. The Dominion parliament ha> no more 
 power to interfere or regulati' contracts of this natui'e within any 
 of the provinces than has the h'gisiature of the province to regu- 
 
POWERS OF IMKLIAMENT AND LOCAL LEGISLATURES. 
 
 65 
 
 lllt- 
 
 It 
 
 liiii 
 
 hill 
 
 lato proniissorv notes or bills ot'oxchango. The terms upon whit-h 
 insurance business is to be carried on within the i>rovinee is a mat- 
 ter coming exclusively within the powers of the local legislature, 
 and any legislation on the subject by the Dominion would seem to 
 
 !)e (illni rires.' 
 
 33. Doctrine in the United States. — In the United States tlio 
 tliM'trine is the same, the supreme court of Michigan having in a 
 recent case laid it down that corporations organised under the laws 
 of other states to engage in and carry on business not oi»en to citi- 
 zens geiier lly, cannot carry on business in the State of Michigan, 
 except permission, either express or implied, is given them to do so. 
 It has been repeatedly held, and tlu>re seems to be no conflict of 
 authority, tiiat corporations of one State have no right to exercise 
 their franchises in another State, except u[)on the assent of such 
 other State and upon such terms as may be imposed by the state 
 where their business is done. The conditions imposed may be rea- 
 sonable or unreasonable ; they are absolutely within the discretion 
 of the legislature.' 
 
 In a suit by a policy holder, however, a company is estopped 
 to deny that it was authorised to do business in tim State.' 
 
 34. Application of Insurance Act of Canada and unconstitu- 
 tionality of some of its provisions. — l*.y its terms the provisions of 
 
 the Insurance Act of Canada do no! apply to any i»olicy of life 
 
 insurance in Canada issued previously to 22nd May, 1868, I>y any 
 
 comiiany which has not subsequently obtained a license umler that 
 
 Act, nor to any <()nipany incorporated b}' the legislature of the late 
 
 province of Canada, or of any province in the dominion, which 
 
 t'arries on l»usiness wholly within that province and which is within 
 
 the exclusive control of the legislature of that |irovince. Hut if 
 
 such a company wishes to transact business throughout Canada, it 
 
 may, by leave of tlu' (Governor in ('oiincil, obtain the benefit ol' the 
 
 provisions of tlu' Insuraiu'e Act of (^ana<la.' And by section 4 of the 
 
 san»c Act no one nuiy carry on the itusiness of insuraiu'e in Canada, 
 
 I Si'i' Parsons v.Clli/.oiis Ins. Co., I A.H.'.Mt ; 4 S. I'. U. 21."., 7 Aiip, Ciis.,lKI ; Fiirsons 
 V. Qui'i'ii Ins. Co., do. ; IK'vliu v. Wostorn .Vss. Co., 4 .\. H. 2S1, I S. C. H. 215 ; Coring 
 V. London Mutual Kiri' Iiih. Co., 11 O. H. S2 ; Hunk of Toronto v. I.unibe, 12 ApjO. 
 ('lis, .")7."). 
 
 - Hi'iu'li on Insurivncc (IKlt.'i), vol. 1, p. fit, S <KI, imd see lis to iipplii-iition of 
 siatulo Ki'iHTiil in its trrniH, to fcn-eiKn company, id., p. 51), §71, und 8ee index 
 for S hi/rii. ■' Heiiih, p. .">:<, StU. * H. S. C., c. 121, s. M. 
 
 I'm 
 
 m 
 
 
=»T« 
 
 tili 
 
 IN.SUKANCE LAW 01" CANADA. 
 
 
 :|| 
 
 rtiihjiM'.t to the oxc»'|iti()iis ill tlio Aot, without a rn'ciisc uinlcr the 
 Act; l»nt tlie coiistitiitioiiiilitv of tliis, as we'll as ofsoino otliiT jim- 
 visioiis ot tho IiisuniiK'c Act, is douhtl'iil, as wc shall sec later.' 
 
 35. Superintendent and inspectors of insurance— Their 
 powers and duties. — F<ir tlic luori* ctHcicnt aihiiinistratioii of tiio 
 liiisiiioss ot' insurance in C'anathi, a sii|)ei-int«-n<U>nt of insurance lias 
 been aitpointed under the Dominion Act, and an inspector of insur- 
 ance under the Ontario provincial acts.- 
 
 The (iiiehec provincial act [irovides for the appointment of an 
 inspi'ctor, hut none has so far been named.' 
 
 The powers and duties of tlie sujieriutendent of insurance 
 includi' the recortling of the documents recpiired to he tiled l»y 
 each i'om[tany in the sui>erior courts of Oanada ; enterinii' securi- 
 ties deposited: reportinu; before the issuinjf of licenses; keej>ing 
 record of licenses ; visitiuj; the head office of each company at 
 lejist once a year, i-xamininj;' its affairs and reporting to the minis- 
 ter : and lastly, preiiaring for the minister from the statements an 
 atinual report showiuii' the full particulars of each company's busi- 
 ness, tou'cther with an analysis of each branch of insurance, with 
 each company's i;ime, giving items classilieil from the statements 
 U'ade liy each c(uupaiiy. 
 
 The inspector's duties are somewhat similar with regard to 
 the provincial companies. If the superinti'iulent or inspector con- 
 sitlers that tlu' assets of any company are insuittcient to justify its 
 contiiiuiiiict' in liusiness, or that it is unsafe for the public to ort'ect 
 insurance with it. he makes a special report to the minister (in 
 Ontario to the treasurer), who may report to the Governor-in- 
 Council that he agrt-i's with the superintendent or inspector, and 
 the (Jovcrnor may then suspend or cancel tlu' licenst- oi' the i-om- 
 pany, and prohibit it from doing furtlu-r itusiness.' 
 
 36- Jurisdiction of parliament discussed in Supreme Court 
 and Privy Council. — The ((uestion of the powi-rs ot' parliament and 
 of the K'gislaturi's of the provinces in insiiranci' matters was fully 
 discussed l>y the I'rivy ('oiincil in the casi' of the C'iti/.en-t' Insur- 
 ance Co. V. Parsons.' 
 
 This was aOanadiun company incorporated liy Act of the par- 
 lian)eut of C^^mada since the passing ot the i{. S, (>., c. ll!"2, and it 
 
 I Sue index for S ui/rn. •' Out. Iiih. Act, IHltT, st-c. 17(1. ' U. .S. (/ XfTi. 
 
 * R. S. <;., eh. 121, sw. 2r. ; H. S. Q., .".HT" : Out. tnn. Act. IS1>7, hit. 171». 
 
 • 4 S. C. U., 215 ; 7 App. Cas., tK). 
 
POWERS OF PARLIAMENT ANI» LOrAf- I.EOISIiATURES. 
 
 67 
 
 furt 
 
 liUI<l 
 
 lilly 
 
 MU'- 
 
 liar- 
 1 It 
 
 U 
 '^ 
 
 lijul issut'd, ill favor ot 1'., a policy ai^ainst tire wliicli liml not 
 I'lulni-rti'd njiiiii it tlic Ontario statutory contlitions (R. S. O.. r. lt;2), 
 iMit had conditions of its own which wcro not printed as variatiotisi 
 in the niiMh' indiiati'd l)y the Act. Tiic(inccn fnsurance (-onipaiiy, 
 an Knglisli company carrying <>n hiisinosrt under an Imperial Act, 
 issued in favor of W. alter the passinj; of R. S. ()., c, 162, sin interim 
 receipt for insurainn' airainst \\\\\ subject to the conditions of the 
 company. Tlu' Western Asr^urante Company, a Canadian company 
 incorporatt'il hy the parliament of Canada lietore confederation, 
 issih'd a policy ot insurance ajiainst fire in favor of .1., the condi- 
 tions of the policy, which were ditf'orent I'rom those contained in 
 \l S. ().. c. 1&2, not Iteini; atlded in the manner recpured hy the 
 statute. The three companies were autiiorizetl to do tiro insur- 
 ance husiness throiitchout Canada hy virtue of a li(!ense <fninted to 
 them hy the Minister of Finance, lunler the Acts of the Dominion 
 of Canada relatinj; to tire insurance companies. Tlie properties 
 iiisureii hy thes^• companii's wen- all situated within tiie province 
 of Ontario, aii<l heiiii>' siihse(|Uenlly destroyed hy tire, actions were 
 liroutfht ai^ainst the oonqianies. 
 
 The Supreme Court of Cana<la, after heariiii; the arguments 
 ill the three cases, delivered hut one ju<lu:nu'nt, holding that " Tlie 
 Fire Tnsurance Act," II. S. ()., c. 102, was not ultra rircs, and is 
 applicalile to insnranie companies (whether foreiijn or incorporated 
 hy the dominion) licensed to carry on insiiramte business throuu^h- 
 oiiv Canada and takiiis>' risks on proi»erty situate within the pro- 
 viiic((]of Ontario ; that the letjislation in ipiestion, jirescrihing con- 
 ditions incidental to insurance contracts, passed in Ontario, relating 
 to property situate in Ontario, was not a rei^iihitioii of trade and 
 cojunierce within the meaning of these W()rtls in ss. 2, s. IM, U. X. A. 
 .\ct ; that an insurer in Ontario who has not complied with the law 
 ill (I'-.v'stion, and has not printed on his policy or contract of iiisiir- 
 iiiice the statutory conditions in the manner indicuted in tin- statute, 
 caiiiiol set iii> aijainst the insured his own conditions or the 
 statutory conditions ; the insured alone in such a case is entitled 
 to avail him-iclf of any statutory coinlition. 
 
 I'ci- Taschereaii i^ (Jwyniie, d.J. : That the power to leu:islate 
 upon the suhji'ct matter of insurance is vested exclusively in the 
 l>i)miiiion rarliament hy virtue of its [)owor to pans luwrt for the 
 rcu;iilation <d' trade and commerce under the 91st sei'tion of the 
 M.X.A. Act. 
 
 W\ 
 
 M 
 
 iii 
 
 iiHi 
 
" I .«t ' ^ ' 
 
 i 
 
 68 
 
 INSURANCE LAW OF CANADA. 
 
 iii 
 
 Oil appeal to the privy council, the jmlgnient of tlie Supreme 
 Court respecting the validity of the provincial statutes was 
 affirmed ; the judgment of tlie Supremo Court on the merits was 
 however reversed.' 
 
 37. Province— Exolnsive jurisdiction over legislation re- 
 grulating: false statements in application, etc. — In a suhsequent 
 case where the defendant, a mutual insurance company, was incor- 
 porated by an Act of the Dominion parliament, 41 Vii-t., c. 40, hy 
 section 28 of which it is provided that "any fraudulent misrepre- 
 sentation contained in the application therefor, or any false state- 
 ment respecting the title or the ownership of the applicant or his 
 circumstances or the concealment of any incnniltraiice on the 
 insured property, or the failure to notify the company of any 
 change in the title or ownership of the insured property, and to 
 obtain the written consent of the company thereto, shall render tlie 
 policy void, it was held on demurrer, that the matters provided 
 lor by the above section were subject matters of the " Fire Insur- 
 ance Policy Act" »)f Ontario, over which the province has exclusive 
 .urisdicti(»n ; and although they might be proper subjects of legal 
 ooiitrait, they would have no force or vitality through the Domin- 
 ion Act per se, but only by being used as recpiired or moditicd by 
 said Ontario Act, namely, in the manner provided for variations to 
 the conditions therein contained.- 
 
 38. Unconstitutional provisions of Insurance Act of Can- 
 ada regarding error in age, misstatements, etc. — Tlie Dominion 
 Insurance Act ' ro<iuires that any condition modifying policies of 
 life insurance must be set out in full on the face or back of the 
 policy ; that no i)olicy shall have endorsed uiion it a condition 
 voiding the policy on account of an untrue statement, unless such 
 untrue statement be material ; and that a misstatement of age 
 made in good taith shall not avoid the policy. Kxcept in go far as 
 they are prescribed by i»rovincial legislation, these provisions seem 
 ot doubtful constitutionality.' 
 
 It was claimed for the Dominion in I'arsons vs. the Queen 
 
 1 Till' Citi/ens In.s. C"o. v. Parsons, I S. C. K. 2\ii, 7 App. Ciiscs 06. 
 
 '^{ioriiiK V. London Aliit. i"'ire Ins. Co. 11, O. R. S2, coinn\entinK on Citixuns Ins. 
 Co. V. PiiixonN. 7 Aijp, Caxes IHI. ■' H. S. C. cap. 124, sec. 27, 2H, 28<». 
 
 * Vonncr v. Sun Lifo Ins. Co., 17 S. C. R. .'HM ; (ioring v. London Mutual Fire Ins. 
 Co., 11 O. H. H2 ; I'ilzrandolph v. tliu Mut. Relief Society of Nova Scotia, 17 S. C. R. 
 333 in/m. 
 
POWERS OF PARLIAMENT AND LOCAL LEOLSLATl RES. 
 
 69 
 
 iuoon 
 
 •o Ins. 
 C. H. 
 
 ■ -V; 
 
 
 lusnrancrc Company,' ami lioM by two of tho judiros in the Supremo 
 Court of Canatla. that U'gislation regulating insuraiu-e contracts 
 fell within thcternH " trade and commerce," legislation upon which, 
 l»y the British North America Act,- is within the exclurtive juris- 
 diction t'.t the Dominion Parliament, hut this»-ontention was rejected 
 hy the courts. Xotwithstanding this rejection, v.e tind section 39 
 of the Insurance Act ot Canatla ' providing for the regulation of 
 life insurance contracts made hy mutual or assessment companies: 
 detiniiiiT thi' I'orm of their contracts and the rights and obligations 
 flowing from them ; and this although the Civil Code of Lower 
 Canada exiiressly declares ' that mutual insurance is not t'ommer- 
 cial. In Ontario, however, it has been enacted by provincial 
 authority ' that where a corporation licensed or authorised under 
 section 39 of the Insurance Act i)f Canada is registered under the 
 (.)ntario Insurance Act, every policy issued and used in Ontario 
 must cont'orm to said section o9 under penalty of suspension or 
 cancellation of its registry. The [irovisions of the Insurance Act of 
 Canada" above refcrreil to re([uiring the setting out of conditions in 
 lull on the policy, and that untrue statements must be material to 
 void the policy, are also reproduced, with modifications, by Ontario 
 ]>rovincial legislation" and to some extent in (Juebi'c' also, as we 
 shall see later in discussing the (piestion of warranties, misreiire- 
 scntations ami conccaluients in contracts of insurance. Although 
 section 22 of the Insurance Act of Camida [trovides that uidicenscd 
 persons undertaking contracts of insurance are liable to tine antl 
 imprisonment, this would sci-m an interlercm'C with civil rights, 
 and consequently inetf'cctivc without provincial sanction." 
 
 39. Contract deemed made in Ontario. — ['ndcr the Ontario 
 Insurance Act, 1(S97,"' when the subjci't matter of the contract is 
 jiropcrty, or an insuralilc interest within the jurisdiction ol' Ontario, 
 or is a person domiciled or resident thei'cin. any policy, etc., sliiill, 
 if signi'd or delivered over in Ontario,»be deemed to evidence a 
 contract maile therein, an<l shall be con>tnie(l according to the laws 
 of Ontario. In (Jueiiec, lire insurance companies nniy besunimoneil 
 by the assured or his re[iresentalives belore the e()iirt of the dislrict 
 
 ' See nuiirii, S^Mi, iind r>i)i'(ifillv I'iiixiii.s v. Citizens' In-. Co.. S :(ll. 
 
 - H. N. A. Act, soc. !•! ci). • IJ. .S. C, cii). 121, soc. :i!i. * C. C. I.. ('.. 2171. 
 
 ■'' Out. Ins. Act. ISHT, sec. .Ml, ss. 'A. '• Sees. •>!, is. 
 
 " Onl. Ins. .Vet. 1S!(7, sit. I tl. '' 0. C. I,. C., 2ISt(, unit M-f inilt-x for si lii/ra. 
 
 'Oat. In.s. Alt, 1M>7, sue. 5:». "' OiU. Iiis. .Vit, lSil7, mt. 1 Hi, 
 
 1^ i?l; 
 t5- :;,; 
 
 ■ • 
 
 if 
 
'T 
 
 
 70 
 
 INSIRANCE LAW OF CANADA. 
 
 where tlie oUjeet (if the risk is, iiiid lite i-oinpuiiies l»('tore tlie court 
 of the (lirttrirt where the asrtiire<l lias or luul his (loinieilo.' 
 
 40. Application of Ontario Fire Insurance Policy Act. — The 
 
 applieatioii of the Ontario Fire lusuraiiee I'oliey Aet, R, S. O., 1877, 
 e. 162, to mutual insurance companies has heen the subject matter 
 of several <lecisioii9 in Ontario.- And it is there held that a com- 
 pany incorporated hy a provincial le<rislature for tlic husiness of 
 insurance possesses the same capacity and franchises within the 
 jurisdiction crejtinsjf it as a company incorporated by the Imperial 
 or Dominion parliaments, and may enter into contracts outside tlie 
 province wherevi r such contracts are recoicnised hy county or 
 otherwise.' It has liecii formally decided that Dominion legisla- 
 tion regulating the winding u[> ol insolvent companies is not ultr<i 
 vires ot the Dominion Parliament.^ 
 
 ' C. C. 1'., art. »1 ; R. S. Q., nrtttl. 
 
 -Ciuueroii v. Canada Fire & Marine Ins. Co., <i O. R. HIW ; Robins v. Victoria 
 Mut. Fire Ins. Co., A. R. 427 ; -Mutual Ins. Co. of Washington v. Frey, .J S. C. R. «2, 
 reported infra, 
 
 ' Clarke v. Union Fire Ins. Co., 10 P. R. :n;j ; and sec Dalf v. Can. Mut. Fire Ins 
 Co., P. R. aiL'. 
 
 * He Uriton Medical & General Life Assn. (Ltd./, 120. R. 411 ; ami see index for 
 § infra. 
 
!;;■ 
 
 CHArTKR IV. 
 
 OF THE MAKING OF THE CONTRACT, THE Al'I'LICATION, PAYMENT 
 OF PREMIUM AND DELIVERY OF POLICY. 
 
 41. CONTKA( r HV PAROL — AlCKPT- 
 AXfi; MAKKS VALID CON TKACT -PoLUY 
 NOT KSSK.NTIAL - A(i(!KK(lAriO MKNTHM 
 SrFFICIKNT — In Ql'KllKf AND OLD 
 KKANlK-lN KNCiLANO— In I'KANCi;— 
 
 Ix (i^;KM.^^•Y. 
 
 42. How COMPANY MAY (■ "s : •■ ACT. 
 ■i'.i. WllKN PAItOL CONTIIACT WILL 
 
 NOT HIND CO.MPANV 
 
 41. Wni;\ s'i'ATfTKs do Nt)T i:.\- 
 
 I'HKSSLY PKOIIIHIT I'AROL. 
 
 4."). Parol coNTitACT in tiii; i'NItld 
 
 STATKS. 
 
 4((. DkKINITION ok VKHIIAL AOKKIv 
 
 mknt and parol i'ontract. 
 
 47. Ri;ci:nt amiouican decisions on 
 PAROL CONTRACTS— Contract in wki- 
 
 TINi; RIOh'ORMI'MI IIY PAROL- PROVISION 
 IN CHARTKR NOT AKFMCTINli PRKLIMIN- 
 
 ARY arran(ii:.mi;nts — Phkliminarv 
 
 ORAL CONTRACTS CoMMKNCKMIONT OF 
 RISK IX ORAL CONTRACT— PaYMKNT OF 
 PRKMIUM NOT KSSKNTIAL TO ORAL CON- 
 THACT— AITIIOHITV OF A(il:NT AND 
 rSA(ii; AS TO PAROL CONTRACTS - 
 WllKN A PAROL CONl'»A( T IS NOT IX- 
 FKRRKD — AcTI'AL AtCKPIANlK AND 
 SILKNCl:— A NKW YORK DKCISIOX ON 
 PAROL CONTHACTS-l,'sA(iK AS TO CRK- 
 DIT— Ari'llORII'V OF A(iKNIS A KKN- 
 TCCKV DIH ISION ON III K Sr 11.1 K( r OF 
 PAROL CONIltAcr AND AOllNP's ACTir 
 (imiV -A .sorill CAROLINA dkcision 
 ON TlIK sril.lFcr OF PAIIOl. CONTRACT 
 AND AOKNTS AVTIIOHTTY — I'AROL 
 
 aiih1.k.\iknt for iiknkwal and 
 acknt's powi:r to w.ivk for- 
 
 FKITrltK. 
 
 4."^. SrilSKyCKNT MODIFICATION OF 
 Tlli;iONTRACT l!V PAIIOL. 
 
 40. A CORPfmATION MAY NOT ARHIT- 
 
 rarii.y hnlarck its own ca pacity. 
 
 (■>(). Provisions of ciiahtior .\s to 
 for.m, skal, ktc. 
 
 51. Plka ok want ok sioai. a FI ^ ID, 
 
 KTC. 
 
 52. Dkkinitio.n of application. 
 
 5;{. TllKAI'PLK ATION INSI'RKD's I'AIIT 
 
 ok tiik contract. 
 .54. Rkvival application. 
 5.5. Copy of application attaciikd 
 
 TO liOLICY. 
 
 M). WllK.N INSITRKD MI'ST KXAMIXK 
 
 applilation and ihh.icy — .misdk- 
 scription iiy a(jknt. 
 
 .57. What is x<tt a part of thi: 
 <'oxtract kndorskmknt witiioit 
 
 RFFKHKNtK. 
 
 .5*^. Hkfinitions (»f poi.iciks — In- 
 
 TKRKST POLICY — WaOKR OR (iAMINil 
 POLICY — Ol'KX POLICY — VaUKD 
 POLICY— Dl'RATION OF RISK. 
 
 .51». DKSCHirTION AND CONDITIONS 
 COMPONKNT PARTS OK POLICY. 
 
 (Kl. Policy oktainkd iiy fhai'm 
 
 (il. VAi.rKD POLICY — Vau'i:!) on 
 
 l>Pi;X POL. 'KS l'"RArD \OT PRIXfMKD 
 rXLKSS OVKIt-VAI.IATlOX UK KX(i;s. 
 SIVK — W'ACKIt OR OAMINIi POI.Il IKS— 
 Sl'Kcri.ATIVK POI.ICIKS ON TIIK I.IVKS 
 OF ROYAL PKIt.SOXAOKS. KTC. VaI.I'KD 
 POI.ICIKS I.V IIIMTISII COI.r.MIIIA 
 
 112. DfI.IVKHV of POLICY (ONSr.M- 
 >IATUlX OF AORIOK.MKN'T. 
 
 t>:t. Action for piik.mii'.m -ini om- 
 
 PI.KTKIXONTR ACT— STIPULATION THAT 
 CONTIIACT WAS NOT (OMPLKTK CN'TII. 
 PHK.Mir.M WAS PAID. 
 
 (M. PliKMir.M NOT PAID AND POLIIY 
 NOT DKLIVKRKD, CONTRACT IXCOMPLHTK 
 
M 
 
 11 
 
 
 72 
 
 INSURANCE LAV OF CANADA. 
 
 03. What coNsTiTi-rKs dki.mkrv. 
 
 fH). ViV ICY NdT 111:1, IVKKKI) — NO 
 ritl;.M!CM I'AIK. 
 
 I'tl. i)i;i,lvi';itY OK I'oi.KV Nor pkovimi 
 
 — NuNDKI.IVKUV OI- I'Ol.lt V A WA1V»;B 
 OF lONDITtONS. 
 
 •is. Ili:i.ivi;nv OK i'oi.r( V not cokn- 
 TKIISK ; > III) - Escilow . 
 oil. Dki.ivkiiv (IK I'oi.K Y (cotit iiiucd). 
 
 70. TiiK I'KKMir.M — Dkkinition ok 
 I'ukmum. 
 
 71. I'KKI'AYMKNT ok I'UKMIU.M 
 
 7:i. (,IVIX(i 1 IIKDKI' KOH 1'ri:mii-ms. 
 
 7:!. Law k\ yi'KiiKc and i ..dntaimo 
 
 AS TO LOSS WKI'IIIN fKIt.M ok (JII\(K — 
 1'a\ MKVI' OK I'llKMII.M C'UKIHT — 
 
 Ari'llOKKIY OK MANAdKlt. 
 
 71. AlTKI'TANC !■: OK NOTi; AS CASH 
 Kit!! I'ltKMITM. 
 
 I'l. SKI' (IKK IN COMI'KNSAI'ION — 
 DAMAia:-* KOU Kllti:, ACAINsr I'HKMICM 
 
 dim:. 
 
 71). I'ltKMICM \(3I i:s IIY AliKNT. 
 
 77. LlKK INsrHANci;- F'UKMICM NOTK 
 
 — XONPAVMKNT OK - KoKKKKII'HK. 
 
 7s. LiKi;iNsi»AN( 1:— riir:.Mn-M xori; 
 
 — -VcTlOX ON, Al'TKlf KOHKKrrCIU: — 
 
 CoNiinioN, month's cKAci: -Dkatii 
 
 \VKIHIN, AMI IIKKOHi: I'AYMKNT OK 
 PIIKMUM. 
 
 7!'. I.iKi: iNsniANci-: Phkmicm notks 
 
 — N'mN !'A^MK.^•|■ — KoliKKITl'ltK ('(IN- 
 IMTION--. 
 
 S(). I'RKMII'M NOTK NOT PAID — 
 
 I'OWKItS ()KSK( KKTAHY IN ( ANADA OK 
 KOHKKiN COMPANY. 
 
 51. J'HKMir.M NOTK NOT I'AIII — UK 
 < I.AHATION IIY (OMI'AXY TO \YOHK 
 KOHKKITUHK. 
 
 52. ClIKCilK KOlt I'ltKMII'M rNI'AII). 
 
 Wi. A( I (iNON I'RiiMir.MNori: xyhkn 
 
 INSCHIM) MKST ACCKI'T. 
 
 S^. XOTK IN PAYMKNI' OK I'lUHln'M 
 (.IYl;.\ TO AdKNT. 
 
 H.1. Casus \yiu:kk piikmikm is noi- 
 iii'i': ANii Mi'sr iiK KinrnNKii. 
 
 SI. A( TION TO IlKl OVi:i{ PHI.MICM> 
 PAIll IIY CKKIII'I'OK. 
 
 S7. WllKN APPLICANT MAY HKlOVKK 
 lilK PKKMII'M PAIll. 
 
 SS. KHKOH as to PHKMIl'M. 
 
 S!). I)ikki:i(i:n( K in prkmiim phiv 
 
 IIY OI ( ONTHAI r. 
 
 '.Ml. KXTHA I'HKMICM, ( ONSTII CCTION 
 OK. 
 
 iM. KxriiA pnK.Mic.M to iti: paih \\\ 
 
 I.KSSKK. 
 
 i 12. 1 ' I . A 1 K c 1 1- C< I XT K A CI'. 
 
 !i;t. IM.ACE OK P AYMKXr, 
 
 ill. NllllCl: OK PAYMKXI' HI- PHI • 
 MUM. 
 
 !l."i. 1{i;ni:\yai.s .^iipci.ai ion. i.osi 
 oil not lost. 
 
 I'll. .\C( IIIKSI INSCI! ANCi: I'll Ki:is. 
 
 41. Contract by parol Acceptance makes valid contract. 
 
 T\\v iUfc|itiiiicc' dl' an ii|iiiliciiti(iii tlir iiisuniiicc cniistitutt's a valid 
 aLii'o'im'iit t(i insure, unless tlie insui'er is rcn'iiivd liy law I0 cdii- 
 tract in aimtlier lorni e.veliisively.' 
 
 41a. Policy not essential. — Tlii' iiolicy is nut essential In tlie 
 valiilirv dl' tlie cdutract : it is Imt tlic ex|iressi(in ami eviilcnce dl 
 Avliat lias lu-en alreailv au'reed to.- 
 
 iu siiine fdrein'ii cdiintries. liowi'ver. tlic inilicy is cssi'iitial to 
 the idiitract. 
 
 41b. AgKrcRatio mentium sulflcient. — .\n insurance cdntract. 
 like any other hihiteral eontraet, lioinu' merely an anTeeineiit he- 
 tween two piirties, inniosintf ohli^jiilidns iipdn and cducedinu' rin'lits 
 
 ' ('. (', I,. ('., i;isi ; 1 .Mav, (IS, S 1:1 : I'.itli. Ass., IIH: .Miirslmll. 210, 11. : Parsons 
 IS.crc. I.iivv, •lin', II. I ; 1 I'liillips Ins. .'i ; Monti'i'iil .\ss. Cn. & .Mi'(iillivi'iiy, It I,. ('. It. 
 l^. ■ lb. 
 
MAKING OF CONTRACT, ETC. 
 
 78 
 
 i.iisr 
 
 •lUl- 
 
 tllc 
 •(> ot 
 
 filet. 
 I,.'- 
 il>-llts 
 
 -^.v 
 
 .# 
 
 to each, tlioro is at t-ominon law no necessity for its reduction to 
 writing or for tlie observance of any special formality. The legis- 
 lature or the charter of the company, however, may require it, or 
 it mav he required by the parties as evidence of the contract. 
 
 The iiififrt'iiafii) tnevtixm. upon all the essential points, would 
 st'cm sufticient to bind the i-ontractina: parties.' 
 
 lie. In Quebec and in old France. In (jucbec writings arc 
 required in civil matters affecting amounts over .S50, and jiarol evi- 
 dence is admissilile to complete the proof only where a conimei\ce- 
 ment of ))roof in writing exists : and a parol agreement to renew 
 a [loliey i-annot be jirovcd without a writing or at least a commence- 
 ment of proof in writing. 
 
 Meri' i)arol proof of tire insurance is no more admitted than 
 mere proof ot the sale of lands, and in practice jiarol insurances are 
 verv infrequent.- except for temporary pur[ioses pending the issue 
 of an interim receipt or policy. 
 
 .ludii'i' MaeUay has pointed out that insurance, as a com- 
 mercial nuitter. was in old France cognizable in the Trilmiuils of 
 the Jugi's I't Consuls, and these tribunals admitted proof by jiarol 
 generally even of contracts involving over a hundred livres, except 
 where prohibited. 
 
 The Ordonnance de la ^^arinc exacted policies, yet this wa- 
 held to be only as a proof (if the contract. Even under that ordon- 
 nance other modes of proof wi're <i\>'-]\ to an insured : for instance, 
 tin? tender of the oath to the allegeil insurei'. ' 
 
 Tt has been said that in (Quebec, wliere the Oi'ilonnance de la 
 Marine was never ri'gistered, ami wln-re the nn)dern Fri'nch law 
 docs not control, jiroot' of the contract may lie nnnle by policy, by 
 other writing, by oath tendered to the insinvr. and by parol, unles- 
 where the law incorporating a company oi'dcix otiierwise. 
 
 Ami that though an Act incorpuraliiig an ni-iiraiicc con)|iany 
 nnty direct iiow its policies are to lie nuide. ami confei- atlirmativciy 
 power to contract liy [lolicy, but is. as regards other nu)des ol 
 insuring, silent, such eom|iany woiijij lir iield bound liy a contract 
 liy jiarol made by any authorizedagent.it evidence were t'ui'iiishcd 
 
 ' Set' Sinilli V. ('ityi)f l.oinliiii Ills. (\i.. 11 Out. lii'p. :i.s. .Ill; and (ioililiiril v, 
 Monitor Ins. Co., llts Mush. ">". Ont. Iiis. .Vet. ISiiT. m><', KW, CaM,.. C. i!Iso, lilsl, 
 
 ••; Maclvay. Inn. i:i L.N., 111. 
 
 •'ThI.s N ttip opinion of PotliiiT .iinl Mciliii, lliounh lOiiiorlKon diU'i'is fioin 
 (lieiii : Miicliiiv, Ills. l;i I,.N., ItU, l)\n sim- Monlrcil A-^. Co. iV Mctiilliv imv lii/ni. 
 
 V 
 
11 
 
 I: I 
 
 74 
 
 INSCRANCB LAW OF CANADA, 
 
 tliut it liiis jissumotl powers to inako contractH so ; was in flio luiliit 
 of makins; tliem so by jiarol. and did make tlie one in (niestion. 
 From tlie lanuuau^*' of the jndifos in the Privy Council in Montreal 
 Assuranee Co. v. McGillivray,' it wouhl seem that the same prin- 
 ciple might he admitted to govern even in England, though it is 
 generally sui)posed that there the rule that a tu)rporation eannot 
 express its will Imt by writing under seal (exeejit as to insignificant 
 acts), has not been relaxetl as in Quebec and the United States. 
 It was, liowever, doubted by the i'rivy Council in that case that a 
 parol contract ot insurance was good in Quebec. - 
 
 41d. In England. Smith states that in England all contracts 
 of insurance must be printed or written.' But Flanders treats ot 
 parol contracts to insure and holds tliey are entorceable.' 
 
 41e. In France. 2^ot even in France, where the Code de 
 Commerce requires that the contract be reduced to writing, would 
 a verbal agreement be ii'so /ac-fo null and void. Any written 
 cvideiioe that an agreement has been nuule will let in oral testimony 
 to show what the contract is. 
 
 This was the doctrine of the old law, disapi»roved of by 
 Emerigon but now iidoi>ted in modern Franee.' 
 
 41f. In Germany. The Gernmn commercial code classes 
 contracts of insurance at a Hxed rate of premium among ordinary 
 commensal transactions," and, as the validity of commercial con- 
 tracts is not dependent upoii writing or any other formality.' it 
 follows that a policy is not leiiuired in Germany to make a I'ontract 
 ol iii^'irance binding.^ 
 
 42. How company may contract. An insurance company, 
 authorized to contrac-t in a particular mode under a statute declar- 
 ing simply that i-ontracts signed in a given way shall be binding, 
 may nevertheless contract under its corporati' seal, or in any othei' 
 t(U'in which tlu' law will allow, the statute in such case being 
 direclory only.-' 
 
 ' l» L.CMf., iss. - 111. Siuilli oil lontnuts. 1:<(!. ' p. i:i:i. 
 
 ■■' HoKiDii, C.hIi' ill' I'liiii. Art. n;tL'. not!' ; Aliiii/fl. Dcs Ass. ISI, 10', iltjiig 
 rothiiT, MitHii. cti'.. Art. (.MM,.('. \SV\. 
 
 " lliiii(li'I.H.(icsci/,iiii(li. (in. i!71, :i. ■ lb., :tl7. 
 
 " U. (). H. C. -JO on., 1S71, \i)l. H, p. ;t:t!l; -JiMun., 1S72, vol. .">, p. lo ; Hill Millli-r. 
 on rirc lii«. I'olli'y. p. il. 
 
 "SiiHtirii V, Wiokoir, 1 llill's, N.Y.. Iti'p. luid oliNrrviitlniis liy llii' Chii'f .luHticc 
 ill Moiitrciil .VsMii'MUf Cii. \, Mi'liillivniy, -J l.,C .1., :ill. 
 
MAKING OF CmXTHAC'T, ETC. 
 
 75 
 
 ISSl'S 
 
 •oil- 
 it 
 tnii't 
 
 IHT 
 
 'iiiii' 
 
 iilllT, 
 1st lit- 
 
 ■f/l 
 
 43. When parol contract will not bind company.- Tf a 
 
 f^tiituto incorporato a coiiiiiaiiy to insure, Imt only ])_v [lolicy, tlic 
 company must ohi-y thv statute, and an insurance by parol by it 
 will nor bind it. But even under sucli statute tlie [laymeiit of 
 premium to sucb a company and agreement by writing tor a policy 
 to be delivered afterwards ath-r sucii a delay only as tlie nctu'ssities 
 ot business in tlie company's oftii-e make umivoidablc. would prob- 
 ably operate an insuranci-. tbougli a loss sliould bappen In-fore 
 delivery of any ])olicy. It would in tlie I'rovince of Quebec, and 
 it seems tbat ii would in Euglaml, provided tlu' written agreement 
 Were stamped.' 
 
 44. When statutes do not expressly prohibit parol. Tbc 
 
 language of all sucb statutes must be weiglu'd ; wonls permitting 
 or autlioriziiig action by ]ioliey tlo not nei-essarily involve pro- 
 bibition to act by otber modes. In tbe rrovince of (Jnebee a 
 eompany, incorjiorated under an Act. not expressly limiting it to 
 contract only by policy, migbt sue an insured upon bis note given 
 for premiums earned on insurance by jiarol, and tbe insured would 
 in vain plead freedom from obligation upon tbe pretence tbat no 
 risk bad i-ver attacbed upon sucb insiirance.- 
 
 45. Parol contract in the United States. — A learned writer 
 in tbe Tnited Statt's ' doubts wlictlier a contract merely oral would 
 now be sustained, sinee tbe usage of written contracts lias become 
 so ancient and so universal tbat it may be considered to liave 
 acipiired tlie I'orce of law, and tliis view lias been a<lopli'd by tbe 
 Supreme Court ot Obio.' Hut tlieir ib'cisi(ui seems to be no loiigi'r 
 an autbority in Obio itself.' Corporations, bowever, are creatures 
 of limited ]iowers,and if tbe eliarter of an insurance eoiii[>any gives 
 it power to issue policies of insurance, it is doubtful wbetlier a parol 
 contract of insurance iiiteiideil to be Hiial witlioiit any intent to 
 issue a policy later would be valid, tbe insureil knowing of tbe 
 jirovision in tlie cbarti'r.'' 
 
 • S(>n obstTvaliims kI I'rlvv ('(ininil in Miiiilrciil A'>>iiinuiio Co, v. .McCillivruy, 
 I) L.C.n.. ISS, iin.l M'c Miickiiy mi Ins., I:! I,.\., 11:^ 
 
 -• Mmkii.v on Ins., I.t I„.N„ 112. 
 
 ■■ DiUT on Ins., Vol, i., |i, (Ki, aiid we Millar on Ins., )i, :t(i. 
 
 M'ockcrlll V, IMnrltiniili .Mut. Iim, Co., niOlijo, p. Its. 
 
 ■Dayton Ins. Co. v. Ki'llv, 21 Ohio St. :t 15 ; May on Ins., p. 2:1 ; I'alin iV Medina 
 Imr. Co., 2(M)IiIo ."c'II, 
 
 '■ Siinontoii.cic, v, LivLTpool, uti',, Ins, Co,,,'(l (la, "tl, at .s| : soe also .siiyjcn, is 11'/. 
 
 f Ml 
 
' fi,-"*J 
 
 "(J 
 
 INSURANCE LAW OF CANADA. 
 
 :li§ 
 
 The [d'ovision in the charter requiring contract?* to he in 
 writiiia; does not apply to preliminary contracts, and these although 
 in parol can l)e specifically enforced even after loss.' 
 
 46. Griswold's definition of verbal agreement and parol 
 contract. — According to Griswold a definite verhal agreement to 
 insure, hast'd upon a sufficient coiisi(h'ration, and ma(U> hy one 
 having an insurahle interest in the suhject at risk with an agent 
 having re(juisite autliority to hind his i)rineipal hy such a contract, 
 will he li'gal and hinding uiion the insurance company, in the 
 ahsence of any law to the contrary, as in some of the United States, 
 wlu're all contracts must l>y law he evidenced hy writing. Such 
 an agreement must emhrace all the reiinisites of an ordinary insur- 
 ance, such as an insurahle interest, amount to he covered, duration 
 of risk, etc An omission of any of these points will render the 
 agreement nugatory. All prior agreements not noted in the [lolicy 
 when written are held to have heen waived, according to the 
 axiom that a contract cannot e.xist partly in writing and partly in 
 piirol. hut parol may explain a written contract when the latter is 
 anihiguDUs. 
 
 < iriswold ' says, furthi-r, that a parol contract, when made hy a 
 iluly autlioi'ized agent, is, in the ahsence of any statute law to the 
 contrary, hinding uiioii the company : l)Ut an acceptance of the 
 offer as made without any change must he sigi\itied, with a tender 
 of the |in'miuni within a reasonahle time, or the agreement will h" 
 void. 
 
 Insuraiu-e agreements of this character may he called a con- 
 trai't to issue a policy ratlu'r than a contract of insurance. Any 
 portions of such agreement not appearing in the policy when issue<l 
 are held to have hei'ii waived, uidess error can he proved, in whicli 
 case the [(ojicy will he su.hject to reform lor any error of tiict. 
 
 47. Rocont American decisions on parol contracts Con< 
 tract in writing reformed by parol Pro^-ision in charter not 
 applying to preliminary arrangements. The Maryland Court 
 «i|' Appciiis in sustaining the right of one having a parol ngreeiueni 
 I'or insurance to have decrei' to have it si»eeially performed, recently 
 declan-d .--ome rules as to written and unwritten contracts of this 
 kiiiil. 
 
 I I'lid'iiix Ills. Co. V. Ityliiiiil. (HI Mil., 1111(1 si'cl'. C, I,, f., lilt. 2lsl, luid t'ortiTM 
 LawMof liiH., |i. 21. -'(irlHwiiliI, ;i:2. ' //»., I.")S, 
 
MAKING OF CONTRACT, ETC. 
 
 77 
 
 1.0 
 
 toll- 
 Any 
 
 Tu'ii 
 
 Con* 
 not 
 
 inirt 
 
 lUMlt 
 
 'iiliv 
 th'H 
 
 Htl'l' M 
 
 They deolared, lor one, that a't'hongh a oontraet has hei'ii 
 rodueod to writing, if it be clearly sliowii tliat something has been 
 omitted from the writing which was by the agreement of the 
 parties to have been inserted, a court of equity will reform the 
 contract to make it conform to the original agreement of the 
 parties. But in any such case the proof must be full, satisfactory 
 and conclusively convincing to justify the court's interfering. 
 
 They reiterate that "a contract of insurance is an executed 
 contract which can he enforced at law. A contract to insure is 
 executory, and reciuircs t!ie interposition of e(juity to give effect to 
 the agreement of parties." Tl^ey then refer to the case cited 
 below,' and say : " In this case the charter of the company 
 reauired that all contracts of insurance sluill l)e in writing, but the 
 court said that this provision had reference only to executed con- 
 tracts l»y which the company was legally bound to indemnify 
 asrainst loss, and not to the preliminary arrangements which neccs- 
 sarilv precede the formal execution of the papers by the otKcers of 
 the company.'" They then (piote from Justice Kield in that case 
 as follows : "It would be inii»racticable to i-arry on its business in 
 other cities and states, or at least the liusiness would Itc attended 
 with great embarrassment and inconvenience if such [ireliminary 
 arrangements required f«)r their validity and efficacy the tornnil- 
 ities essential to the executed contract. The law distinguishes 
 between the preliminary contract to nnd<e insurance or issue a 
 policy and the executed coiitract or p()licy. And we are not awnre 
 that in any case, either by usage or the by-law of any company, or 
 by any judicii,! decision it has ever been held essential to tin- validity 
 of tliese initial contracts that they should be attested by the officers 
 and seal of the company. Any usage or decision to that effect 
 would break up or gri'atly imiiair the business of iuinirance as 
 tratisacted l)y agents of insurance companies."- 
 
 47a. Preliminary orn,! contracts Commencement of risk 
 Payment of premium not essential Authority of agent Usage. 
 
 A preliminary oral contract by wliieli it is agri'cd that an insuraiue 
 company will insure the owner ol' i)roperty against a loss of that 
 property for a tixetl time, and a'l a rate agreed upon between the 
 parties from the time of making the I'ontraet, and that a policy 
 should thereatter be nuide out by the insurance company at its homi" 
 
 I Iiisuriiiice Co. v. Oolt ; 20 Willi, 'm, 
 
 ■•' I'lu.'iiix Ins. Co. of NY. v. Hyliuul, IHHH, W Md., ia7, 41(1, 117. 
 
 K 
 
ITf 
 
 "i ■'ss 
 
 lift 
 
 ^'1 
 
 
 f 
 
 1 
 
 ; [ 
 
 :i 
 
 ■ >j 
 
 ; 
 
 1 
 
 « 1, 
 
 '" 
 
 ' 
 
 1 
 
 78 
 
 INSURANCE LAW OF CANADA. 
 
 otKoo, to take ottV-ct from that t'mio, is valid and binding ujion tin- 
 insnraiH'o cuniiiany it'inadi' within the real or apiiarent scope ot" the 
 agent's authority.' Such contracts will be enforced hv comnellinif 
 s[)ecitic performance b}' the comi)an_v or in action for the breach of 
 the agreement ; in either of which a recovery for the loss of the 
 proi»erty agreed to be insured will be awarded to the assured. 
 
 In such case the risk attaches from the date of the aiipHcation, 
 or from the time designated as the commencement of the risk; and 
 the only ott'ect that can be given to the additional promise to 
 execute a written policy is that, upon the tender of such a policy 
 and a demand of the premium, the oral contract shall cease. It 
 seems now well settled that if an application is made for insurance, 
 whether in writing or by parol, and the risk is accei>ted, the con- 
 tract is complete, and the risk attaches from the date of the appli- 
 cation, or from the time ilesignated as the commencement of the 
 risk, and the insurance company would be liable for loss if it 
 occurred after that and before the contract was consummated by 
 the fornuil execution and delivery of the policy. 
 
 It is not considered essential unless expressly required by the 
 agent, that the premium should be paid at the time the oral con- 
 tract is entered into, in order to constitute a valid contract to insure. 
 
 Whether an ap[tlicant for insurance has a right to assume that 
 an agent of an insurance company has authority to make such 
 parol contracts, in the absence of notice of limitations upon tin- 
 agent's authority, is a question [iroper to be submitted to a jury 
 under pro[ter instructions. Tin* fact that an agent of an insurance 
 company uuiy not have authority to issue the policy, which is 
 simjily the written evidence of the contract does not of itself 
 prevent him from making a valid prelimimiry oral contract to 
 insure : and it is said in such cases the courts will take judicial 
 iioticcuf flic usage to make such contracts date from the application.- 
 
 '17b. When a parol contract is not inferred— Actual ac- 
 ceptance and silence. The mere failure of a tire insui-ance com- 
 pany to respond to an aiiplication does not raise an inference that 
 it has accepted it and insured the risk. To bind the company there 
 must be actual acceptance. Silence o[ierates as an assent and 
 creates an estoppel only where it has the I'ttect to mislead. ' 
 
 m 
 
 < lliiniwlck V. State Ins. Co., 1M»1, 20 Or.. 517. 
 
 J /(/., iiiiil see Hnili- v. St. .Ids. !■'. & M. Ins. Co., l.'WI, TM Mo. :I71 ; UeacJi, S 403. 
 
 1 Mori! V. New York Howeiy Fire Ins. Co., 18l»2, i:UI N.Y., oHT. 
 
MAKING OF COXTRArT, ETC. 
 
 79 
 
 ao* 
 
 OIU- 
 
 tlmt 
 liinil 
 
 I 
 
 47c. A New York decision on parol contracts. -Usage as to 
 credit Authority of agents. — Where a written iipiilieatioii hail 
 been made to a Hrni of brokers for iiisunuice, the preniiuni agreed 
 upon, ihousrh not [laid, the evideiu-e. liowever, showinii- that the 
 usage of the liusiness was to extend eredit to tlie brokers until the 
 end of the nionlh, 'hese I»rt>kers being the aeeredited agents of the 
 eoiniumv. and a dati- lieing agreed upon from whieh the risk was 
 to begin, the New York Court oi' Appeals lield that sueh faetn jus- 
 titie<l the Inferenee of a complete bimling agreement from the date 
 ai>reed upon, which inference it was tor the jury in the case to 
 draw, and wuch a contract, if made, was a valid agreement for 
 insurance u[>on whicli a recovery could be had.' There was some 
 contention as to the power of these agents in this case to make 
 such a contract. Tt ap[)eared that the autliority was given them 
 in two letters, one from the company's general agent, the other 
 from its secretary, both mailed before the making of the contract, 
 l)ut not received by the agents, the brokers, utitil after the lire. 
 The court held tluit the authority <lated from the mailing of tlie 
 letters. Upon the subject of the authority and power ot agents in 
 such matters the court said : "The manner of comUicting the busi- 
 ness of insurance is so well known, that a person may reasonably- 
 assume that one having the apparent power of a general agent is 
 not limited liyliis instructions as to the class of risks lie may insure. 
 Corporations organized under the laws of other states and having 
 tln'ir general otHces in those states, do business in this state through 
 agents, who are intrusted with policies signed by the olttcers of the 
 company, and which become binding contracts upon the endorse- 
 ment of the ugi'Ut. Such agents have power to make original con- 
 tracts of insurance, and this mode of conducting the business is so 
 well I'stablished that it has become a part of the common know- 
 ledge of rile community, and judicial notice must be taken of it- 
 I'erfons deulinn' with agents in ijooil faith have the riyht to assume 
 lliat thev iKissess the power usuallv exercised bv that class ot' otH- 
 ..'crs, and unless the limitation on their authority is brought to 
 rh'>ir knowledge, the contracts made with them will be biiuling 
 upon the company." - 
 
 47d. A Kentucky decision on the subject of parol contract 
 and agent's authority. — In this case the owner of a storehousi> 
 
 1 
 
 I HuKk'i"* v. Am. CL'iitial In.s. Co. of SI. Louis (ISSIM, 114 N, Y, 115, 
 
80 
 
 INSURANCE LAW OP CANADA. 
 
 
 made a verbal application for insurance to the agent of a foreign 
 insurance company. The agent and he agreed upon terms, and 
 the agent entered the agreement in his register hook, and deferred 
 delivering a policy, stating h..' would deliver it when he received 
 the usual blanks from the home office. A few days afterwards he 
 recpiested the applicant to make a \vritten api)lieation to be for- 
 warded to the company, which he did. About three weeks after 
 tlie agreement the agent countersigned a [>olicy which he had 
 received signed, as usual, by the p'".'sident and secretary, in con- 
 formity with his agreement. The night after it was countersigned 
 the property was destroyed by fire ; the policy was not delivered 
 until two days afterwards to the insured. There was a defence 
 that there was no contract, a^ the company bad at their home 
 office, upon cousiderati'Hi ot it, rejected the written application. 
 Notice of this rejection was sent tt» the agent a few days before 
 he countersigned the policy which lie delivered ; it would seem, 
 however, that he hail not then received the notification of that 
 fact. The Kentucky 1,'ourt of Appeals declared these rules as to 
 the case: The statute of trau«ls has no application to a verbal 
 executory contract for the issuance of a policy of insurance, and 
 such an agreement is binding without any written memorial. That 
 this insurance agent, authorised to issue policies for the company 
 atrainst loss or da ma ife bv fire in a opecified citv and " vicinitv."' 
 had the right to insure property in a neigliboring village ten miles 
 distant, was apparent from the fact that the company sanctioned 
 his contracts tor insuring property in that ijlace. The verbal con- 
 tract of insurance made between tlie company's agent and the 
 insured was not waived by a 8ul>se([Uent written application for 
 insurance, l^pon this point the court said : "■Although ordiiuirily 
 an application for insurance would tend strongly to show the con- 
 tract to insure was not ct>m[ileted, and that the right of a company 
 to decline making it still existed, yet in this ease the evidence is 
 that it was distinctly agreed by the iigent ; the application was 
 intended siniitly as descriittive o\' the property, and would not 
 impair the insuretl's rights under the previous parol agreement nor 
 release the company from its obligation thereby incurred ; and if 
 the aiiplication was made by the insureil under such circumstances 
 upon such assurance, we do not see how that act can now be con- 
 sidered as a waiver of his right to the policy already accjuired by 
 the [lanjl contract or as a release oi' the company."' They held also 
 
MAKING OF CONTKACT, ETC. 
 
 81 
 
 nity,'' 
 miles 
 ioiiod 
 
 M 
 
 m 
 
 that where an insuranee agent is investetl with a general authority 
 to make contracts ol" iuduraiicc and to deliver the policies, the rights 
 of the insured cannot be atiected by the fact that the property was 
 so situated that it was the agent's duty to refuse to insure it under 
 private instrUi-tions given by the company, of which the iiisured, 
 wlu) acted in good faith, was ignorant. And where an insurance 
 company is legally bound by agreement of its agent to issue a 
 policy, the rejection of the application l)y the company's general 
 manager cannot affect the rights of the insured whose property 
 was destroyed before lie received notice of the rejection." 
 
 47e. A South Carolina decision on the subject of parol 
 contract and agent's authority. — In a very recent case the 
 8u[»rcme Court of South Carolina sustained the action of a trial 
 judge in allowing testimony to show a parol agreement to insure 
 property over the exceptions of the com[iauy. They said : " It is 
 too late in the day, in view of the manifold forms by which obliga- 
 tions of insurance on property an; tirndy made by parol, to (pies- 
 tion the power of such companies to do so. That it may prove 
 unwise is no argument against such a policy. These corporations 
 are clothed by law with the right to effect insurance u[ion property, 
 and unless something in their organic constitution, to wit, the 
 charters that give tliem life, restrict such an exercise of contracting 
 power, (H* some law ot the land to the same etlect (and noiif of 
 tln'.^e things have been brought to our attention in this rasi;). wc 
 will not deny such power."' They also held that there was no 
 error in refusing a non-suit, because it was not shown atHrmatively 
 that the agent had the power to make this parol contract for insui- 
 ance by his company. The court said : ''If the i'omi)any had the 
 [lower, its agents could do so. It acts alone through agencies. Ot 
 course, if there had been brought home to the api)licant for insur- 
 ance that the company <lenied its agent such power, then he would 
 iiave aited to the contrary at his peril. But there was no such 
 testimony here. The judge did not err in refusing a uon-suii, 
 because a coi\tract in all its parts was not [troved. There was such 
 a contract as bound the company, it the testimony was to be 
 believed. We feel it incumbent upon us to make this [tropositioii 
 clear. We do not, as we before remarked, regard this policy ot 
 insurance companies in making contracts of insurance by parol as 
 
 
 >lil 
 
 dal 
 
 so 
 
 Howard Ins. Co. v, () 
 
 wens (Ky., IHl), ), :il S. W. Hop. lOilT. 
 
82 
 
 INSURANCE h.\\y OF CANADA. 
 
 wisf, nor do we mean to encourage sueli a itraitice. We express 
 no opinion on tliat .sul)ject. Wliat we mean to det'lare is, that an 
 insurance company that has taken the money of its customers upon 
 the promise of a p »licy tliat is never delivered cannot rei)udiato 
 siicli an obligation h- saying that the agent it api)ointed in writing, 
 as in this case, with fill [)Ower to represent such comi»any in effect- 
 ing policies in its name, did not have authority to perform such 
 acts of insurance within the scope of his authority. We sympathize 
 very heartily with the expression of Mr. Justice Miller, of the 
 United States Supreme Court, in this ease (cited below),' when he 
 said : 'The powers of the agent are prima facie coextensive with 
 the business intrusted to his care, and will not be narrowed by 
 limitations not communicated to the persons with whom he deals. 
 An insurance company establishing a local agency must be held 
 responsible to the parties with whom they transact business for the 
 acts and ileclarations o\' the agent, within the scope of his employ- 
 ment, as if they proceeded from the principal." " - 
 
 47f. Parol aerreement for renewal and agent's power to 
 waive forfeiture. The Supreiiie Court of Texas, in an opinion in a 
 well considereil case, have said : " There can be no doubt that an 
 ijisurauce company, through its authorized agent, nuiy (tontract by 
 parol for the renewal of a policy, although it may be stipulated on 
 the face of the instrument itself that this shall not be done. There 
 is no peculiar sanctity attached to such provisions in contracts of 
 this character which nuikes them an exception to the general rule 
 that parties to an agreement may, by mutual concurrence, change 
 its terms at any time after its execution so as to meet their pleasure 
 or interest. A contract of insurance may be by parol and its terms 
 may be changed by parol, by mutual consent. It has accordingly 
 been held in numerous decisions that though a policy be forfeited 
 by the liiilure to j)ay the premiums according to its conditions, yet 
 an agent duly authorized may waive the forfeiture and thereby 
 reinstate the obligation. The cases go even further, and decide 
 that the authority of the agent may be inntlied fn .u a previous 
 waiver of a former forfeiture of the same i)olicv, or from a general 
 custom of such agent to exercise such power over the contracts of 
 the company." ' It was held in this case that where a policy of 
 
 ' Ins. Co. V. Wilkinson, i:t Willi -Itl. 
 
 ■^ Stiekley v. Mobile Ins. Co. (S. ('., HO'J), KtS. E. Rep. "iSO. 
 
 •• Colin V. Conlinental Fire Ins. Co., 1887, <>" Tex., ;W>. 
 
"•f^ 
 
 
 MAKINd OF CONTRACT, ETC. 
 
 88 
 
 •^1 
 
 insurance provules tor a torfeitiiro upon failure to pay the prcmituiH 
 wliicli arc- to tiill duo, l)ut doi's not stipulate that upon .such failure 
 the ovonluo premiums shall hi' considoretl as earned, a denuind for 
 and payment of such premiums constitutes a waiver of tlie for- 
 feiture. It is otherwise wlien the policy stipulated that upon 
 default in any instalment the insurance shall cease, and the instal- 
 ment shall be considered as earned. In this part>ular case, how- 
 ever, it was held that a mere demand for the payment <>" an overdue 
 liremium, without its payment, was not sufficient to reinstate a 
 [lolicy wliieh had been forfeited tor non-payment oi premium. 
 
 18. Subsequent modification of the contract by parol.— 
 
 It is perfectly well settled tluit a new and distinct oral agreement 
 on sufficient consideration may modify tlie policy in any desired 
 manner ; and the autluu-itv of the aijents of the company to make 
 such subsequent oral agreements may be inferred from the course 
 of dealing with the insured and the recognition of such acts by the 
 company.' 
 
 iQ. A corporation may not arbitrarily enlarge its own 
 capacity.— A corporation cannot by its own acts enlarge the 
 capacities, privileges or rights bestowed upon it by the legislative 
 body from which it obtained its charter or extend its own powers 
 beyond the limits fixed by the legislature for the carrying on of 
 business transactions by corporations, as such arbitrary extension 
 would likely tend to lead to an abuse of the contract to the 
 detriment of the other contracting party. In the majority of cases 
 he is a person prt'sumably not as versed in the details and techni- 
 calities of the questions involved in the contract as the corporation, 
 and it is for his protection that some of the powers of the latter 
 have been restricted as stated in the charter or by-law. 
 
 48a. A corporation may voluntarily incur liabilities. ~ A 
 
 corporation may, however, add to its own obligations by relaxing 
 the stringency of conditions framed in its own interest or it nuxy 
 voluntarily incur lialtilities whi<'h it could evade, if inclined to do 
 so. or which clearly are outside the range of those it has under- 
 taken by its contract. In the latter case, of course, the officers of 
 the cori>oration might have to face the question whether they have 
 kei)t within their [)0wers of discretion or whether they have acted 
 
 ' May. :<■■<, ami see index for S bi/ra. 
 
 ! 
 
 W: .l\i 
 
w 
 
 84 
 
 INSURANCE LAW OF CANADA. 
 
 ^t 
 
 ultra vires, should a Kluircholder see tit to object to the course f»f 
 action they have taken.' 
 
 50. Provisions of charter as to form, seal, etc. The former 
 holding in Quebec that the mode Hpecitied in the charter is ex- 
 iluHive has bec!i overruled,'^ while in Ontario it is held that although 
 under a clause in the charter which provided that " any ptdicy 
 signed by the president and countersigned by the secretary, but not 
 otherwise shall be deemed valid and binding on the company," a 
 policy issued without the signatures was invalid atid the company 
 would not be liable in a suit upon such a policy, yet they could be 
 compelled to execute a valid policy as of the date when this invalid 
 policy was issued.' Individuals are nt)t expected to carry in their 
 pockets the charters of all the corporations they deal with.' The 
 ancient stringency of the common law required that corporations 
 should execute their contracts under tljcir corporate seal, and held 
 that they could only thus contract. But this doctrine is no w obsolete.' 
 The Supreme Court of Canada has hold that the company ma}' be 
 rcstrainetl from pleading want of seal to a policy,'' and though the 
 English writer, Mr. Porter, considers the law laid down in this 
 ciise doubtful, it no doubt does substantial justice and attains the 
 end vhich might have been reached by a suit in equity for a proper 
 iiolicv." It has been recently held in Eiiifland that where the 
 charter provided that the seal of the company should not be athxed 
 to policies except by the written order of three directors, a policv 
 issued under seal, but without any order of the directors was valid 
 and iHudingon the company ; the object of the legislature being to 
 impose on the directors the duty towards them of observing certain 
 
 tormi 
 
 ilitics, for the better protection of the shareholdert 
 
 If tl 
 
 lev 
 
 failed in that tluty they would be liable for their negligence to the 
 stockholders, but the absence of the prescribed formality would not 
 lender the contract void as against the company."^ So where the 
 
 ) Taunton v. Royal Ins. Co., 13 L.N., Wo. 
 
 ■■' See Montreal Ins Co. v. McGilllvray, 9 L.C.U., p. 488. 
 
 •' Perry v. Newcastle Dist. Mutual Fire Ins. Co., 8 U.C. <Q.13.), »«. 
 
 * Lloyd V. West. Br. Bank, 1.5 Pa. St., 172. 
 
 '^ Kents Conini., 288, and cases cited in May on Ins., p. 20. 
 
 « London Life Ins. Co. v. Wright, .5 S.C.K., 4W!, In/ra (? 51. 
 
 '■ Porter's Laws of Ins., p. 211, and see Penley v. Beacon Co., 7 (Grant), U.C, 13() ; 
 Mackie v. European Co., 21 L.T.N.S., 1(12, 17 W.R., 087. 
 
 " Prince of Wales Life & Educational Ass. Co. v. Harding, 1 B.B. and E., 183, and 
 see also Collet v. Morison, 9 Hare, 102. 
 
MAKINO OF CONTRACT, ETC. 
 
 policy is l)y the charter required to he under seal a jiolicy issued 
 without a seal may he construed as an interim receipt." An en- 
 dorsement not under seal on a policy under seal is a new contract.- 
 Tt the charter of a company says that it shall go free in all cases of 
 other insurances hy the insured, not endorsed upon the policy under 
 the hand of their secretary, the company cannot waive this form.' 
 
 51. Plea of want of seal a fraud, etc. — The want of a seal 
 (though prescrihed as necessary by its charter) cannot be pleaded 
 in Caiuida hy an insurance company. Such a plea is a fraud which 
 a court of equity will prevent. And it would seem that if a policy 
 is n<»t in statutory form the company will be compelled to issue a 
 valid one of proper date, and substitute it for the one not in sta- 
 tutory form. In short, as we have already said, the ancient strin- 
 gency of the common law, which required that corporations should 
 execute their contracts under their common seal, and held that 
 they could only thus contract, is now obsolete.* 
 
 The leading case is that of the London Life Insurance Com- 
 pany V. Wrigiit,' in which the charter, after specifying the powers 
 of ^iie directors, enacted as follows : " But no contract shall l)e 
 vi'.lid unless made under the seal of the company, and signed hy 
 the president or vice-president or one of the directors, and counter- 
 signed hy the manager, except the interim receipt of the company, 
 which shall l)e binding upon the company on such conditions as 
 nmy thereon be printed hy direction of the board." 
 
 J. E. W. ])rought an action to recover the amount of a policy 
 issued by the appellants in favor of her father. The policy sued 
 on wat a printed form, and had the attestation : " In witness 
 whereof, the London Life Insurance Company of London, Ont., 
 luive caused these presents to be signed by its president and attested 
 by its se(!retary, and delivered at the head office in the city of Lon- 
 <lon," etc. To a plea that the policy sued on was not sealed, and 
 therefore not binding on the appellants, the plaintiff replied on 
 
 ' WriRht vs. London Life Ass. Co., and WriKlit vs. Sun Mutual Life As«*. Co., i'i 
 U.C. (C.P.), 221 ; Supreme Court, .'> S. C. H., Itki. 
 
 - .Shertzer v. Mutuiil Fire Ins. Co., KiMd., .VX!, 8 Ins. L.J., 72. 
 
 'Coucli V. City V. Ins. Co. of Hartford ; Flanders, 4i», in note ; IW Connecticut, 
 A.U., 1K72 -3. 
 
 < London Life Ins. Co. v. Wri(?lit, .5 S. C. R. m); Burnett v. Union Mutual Fire 
 Ins. Co., ;J2 C. I'. i:tt ; Wriglit v. Sun Mutual, 29 U. C. C. P. 221 ; Perry v. Newcastle 
 Fire Co., « U. (J. g. B. :«>:!; Porter's Laws of Ins., ;j.->8 ; 1 May on Ins., p. 20, S 10. 
 ■'' 5 S. C. K. Itili, 
 
 11 
 
 
 It 
 
r^ 
 
 8ti 
 
 INSURANCE LAW OF CANADA. 
 
 ctiuitable i^rouiuls, alleging that the doteiidant aoi'Oi>te(l the tlo- 
 ccasod's i'pplication for iiisiiraiu'O, and that the policy was issued and 
 acted upon by all as a valid policy, but the seal was iiuidvertently 
 omitted to be tixed, and claiming that the defendants should In- 
 estopped from setting up the absence of the seal or ordered to 
 afHx it. 
 
 It was held by the Suiireme Court of Canada, atiirming the 
 judgment of the Court of Appeal, that the setting up of '' the want 
 of a seal "' as a defence was a fraud which a court of e(pnty could 
 not refuse to interfeie to prevent, without ignoring its functions 
 atid its duty to prevent and redress all fraiul whenever and in 
 whatever case it appears ; and therefore the respondent was en- 
 titled to the relief prayed as found upon the facts alleged in her 
 cuuitable replication. 
 
 52. Griswoid's definition of "application." — A preliminary 
 det'laration made by the applicant for insurance, usually consisting 
 of oval or written answers to inquiries, verbal or written, iiitended 
 to C(>ver all material facts or circumstances connected with the risk 
 wliich the insurer should know, subject to the principle applicable 
 to all contracts, that fraud by cither party will exonerate the other 
 tVom his obligation if he so elect. These " ajiplications " are us\udly 
 made upon a [»riiitcd form, also called a "survey," sometimes ac- 
 companied l»y a "diagram"" of tlu' property, and purport to be a 
 true plan and tiiithful dcscriptii>n of the existing condition a:- tci 
 exposures, occui)ancy, value, ownership, or other material nuittcr 
 connecti'd with the subject of insurance, whether chattt'l or real 
 jifopcrty. by which the underwriter is cnaliled to judge ot' the 
 naturi' and hazard of the risk, and iix thereon an appropriate rati' 
 of premium ; and m-j such rc[)resentation the application is made 
 the basis ot'the insnrai.ci' contract, subject to the acceptanci' of the 
 company lieforc the contract is complete. Il' accepted, it is usually 
 nuule a warranty and a part of the policy, and should bear the 
 same or prior date, but mr later, and the saint' numln'r. it thus 
 becomes a warranty, wliich a mere reference to it in tlu' policy 
 Would not milk. it. 
 
 -Vny (|Uestions unanswered in an accepted application are lieli" 
 ti) have been waived.' 
 
 Till' fact that an applicant lor insurance is an illiterate person 
 
 ' (Itisw.iM, 'IT. 
 
MAKIX(! OF CONTRACT, ETC. 
 
 87 
 
 aiul uiulcrst:\ii(l-< tlie Entjlisli liiiigiiagc Imt iinport'ectly, is iinmu- 
 torial, lnviUise ho is not obliffod to ^\gn the application uiiK'^> lie 
 nnderstaiHls it : but it' he siiriis siu li application without askiiii^ to 
 have it read to him, and accepts the iiolicy, he will he honnd l»y its 
 conditions.' 
 
 53. The application insured's part of the contract Truthful 
 representations. The apitlieation tor insurance upon which the 
 insured's policy may he issued is treated always as his [lart di' tlu- 
 contract. In short, he is expected and re([uiri'd to make such 
 representations, in response to the ([uestions which are propounded 
 therein, as are truthful und correct, in order to enable the insurance 
 t'ompany to judjiv of the (piality of risk it is expected to take upn)i 
 itself, and thus determine whether or not it is an acceptahle ri-.k. 
 <Juod faith and truth are expected of the insured. And wiicii an 
 applicant >tipnlates in his application for a life policy that all his 
 statements therein are material, and that falsity in any of them 
 ^hal! avoid the contrac, a court cannot, without an eimhliiii:- statute, 
 pronounce any of them immaterial. AVherc the insured had stiim- 
 lated in his ai)plication that the statements mach' hy him theri'in were 
 " 1,(11, complete ami true'' one of which was that no niemhcr ol' his 
 family t'Ver icul insanity, when in fact one of his Itrotiiers was 
 sutferinu- t'ron, chnuiic dementia, the Supreme Court of Maine in a 
 I'ccent case held that it was immaterial that the applicant did not 
 l>clieve that his brother's malady was within the meaniiii:' of •• in- 
 sanity" as used in tic a[i[ilii-ation. ami such I'alse statement wmild 
 avoid the policy, pursuant to a condition to that effect." - 
 
 54. "Revival application." Whef' a life insurance poliey 
 has itecome forfeited iiy iMUi-payintMit ot premiums, ami a "revival 
 application " is made askin<;' that the [loliey l>c revived, and imu- 
 taininu; represi'iitations a< to the insured's health, etc. during- the 
 jieriod lietwi'cn the issuinir <d' the policy and the date of the i'e\ival 
 apiilication, ami a warranty that such repl•e-entation^ (a>; well us 
 the rt'pre^eiitatioiis of the (.riyinal aiipliealion) are true, and that 
 otherwise the insurance will be void, and i'onlainin<i; also an aLi't'ee- 
 nicnt that the liability ol' the insurer is not to exist until the revival 
 i< assented to. and win n the assiirei' al'tcrwards absents bv a written 
 a[t{U'oval ol' the ••revival applicalitui ' upiui such assent the .\ew 
 
 I t;ris\M)ici. ail, 
 
 - .loliiiMm V. Muiiic \ Ni'w Hiuiiswick In-. Co., isin. s:i .Mr.. 1st. 
 
 11 
 
 m 
 
-rf^m' 
 
 88 
 
 INSURANCE LAW OF CANADA. 
 
 Jersey Supreme Court held the original eoutract, with all its tenns 
 heoaine reinstated and there was also incorporated into the contract 
 which then arose the new terms expressed in the "revival appli- 
 cation '' and therehy the representations therein contained hecamo 
 jKirt of the contract, and the truth of each was warranted. They 
 further held that the falsity of a statement in the " revival appli- 
 cation " that insured had not, during the period ahove referred to, 
 been 'sick or afflicted with disease," was not necessarily to he 
 inferred from the fact that insured had had a "cold"; hut the 
 falsity of a statement that insured had not " consulted or heen 
 prcscriljed for hy a physician " was shown hy proof of such a pre- 
 scription, although it appeared to have heen given tor a " cold " 
 and tlie nature of the prescription did not appear.' 
 
 55. Copy of application attached to policy.— It has also 
 heen held that the fact that an agent of an insurance company, in 
 making out an application falsified statements truthfully made to 
 him hy the insured, would not estop tlie insurer from setting up 
 their tklseiiood in an action on the policy where a copy of the 
 application was indorsed on the l>ack of the policy, and in tlu* 
 l)0sscssi()n ot the insured hefore the loss occurred, as he was then 
 chargcahh' witii the knowledge of its contents whether he read it 
 or not, and, Ity liiiling to jn'ocure a correction or rescission of the 
 contract, he hecame a party to the agcMit's fraud. ^ 
 
 56. When insured must examine application and policy 
 Misdescription by agent. "Where an agent, sv)licitor tor an insur- 
 ance idinpiiny, had written the api>lieation v, hicii was signed liy 
 the insured, and descrihed the property as a dwelling, when, ii; 
 fart, it was a hoarding house and saU)on, as tlie agent well knt'W, 
 and '111 the hack of the [lolii-y there was in large type a notice that 
 the lonipany did not take risks on such property, it was held in 
 Missiiuri that the assured was not entitled to recover in an action 
 on the policy for a loss, as he would he presumed to know the con- 
 tents of the applicatiiMi and i)olicy, and the limitation of the agent's 
 autlidiity in tlic ahsi-nce of fraud, of which there was r.o [iroul' in 
 this .■use.-' 
 
 I Metiopolitim l.ifc Ins. ("o. v. McCiiinuo, ISH", 111 !„('.!,., 'tHl. 
 -.lolitiMin v. Dtilioliil'". iV M. Ills. Co.. IHIKI, 15 N'.W. Ui'|i.. 71(1). 
 ' Mi'iixiiig V. Am. IiiN. Co., IHHI», ;«l Mo. App. (liCi. 
 
MAKING OF CONTRACT, ETC. 
 
 89 
 
 56a. Same subject. The Peimsylvaiiia Supreme Court has 
 held that where a poliey was aecompauied hy a copy of tlie appli- 
 cation, and the insured hy reading it might then have discovered 
 hat his answeis were not correctly written down, this was a con- 
 flideration to he addressed to the jury; for the company could not 
 repudiate the fraud of its agent in transerihing the answers of the 
 insured in his application, and thus escape from its contract, 
 merely hecause the insured in good faith accepted the act of the 
 agent without examination.' 
 
 67. What is not a part of the contract Endorsement with- 
 out reference. "While an endorsement on the Inick of a policy may 
 ho regarded as part of the contract, provided it is referred to in the 
 policy as constituting part of it ; if there he no reference whatever 
 to it in the policy, nothing to show that the parties meant it to he 
 a part of the contract, it will he regarded merely as the act of the 
 insurer, and not therefore hiiiding on the insured. Upon this doc- 
 triru! the Maryliind Court ot Appeals held an endorsement on the 
 policy involved here that whenever any alteration is to he made in 
 the jiroperty the insured shall nuike application to the secretary or 
 agent, who shall examine the property and certify whether the 
 hazard he therehy increased or not, not to Ite hinding on the in- 
 sured ; for, said the court, "in this case there is no n'ference either 
 in tiie policy or in the liy-laws to the direction or endorsement on 
 the hack ot the policy, and it cannot therefore ho regarded as part 
 (if the contract. It is what it professes to he, merely directory and 
 not ohligatory. And, hesides, it does not provide for a forfeiture 
 of the jiolicy upon the failure on the [lart of the insuri'd to nuike 
 such api)ricati()n, and forfeitures hy implication are not favored." - 
 
 68. Griswold's definitions of policies. Under the headiiiii 
 " I'olicy of insurance," (Jriswold' says: " By 10 Aniu", chap. :2t!, 
 sec. (IS, A.D. 1712: All deeds, instruments and writings for pay- 
 ment of money upon tho loss of any ship or goods, or upon any 
 loss hy lire, or for any other purpose for which any writing c(Uii- 
 nmnly called a policy of assurance or insurance is or hath heon 
 U'^ually made, are to he deemed 'jiolicics ot" assurance," " 
 
 The Stani|. Act, A.D. 1870, says: "The term 'policy' in- 
 
 ■ Kisicr V. I.cIhuioii Mut. Inn. Co.. ISMK, l:;s I'm. St. r,X\. 
 
 - I'liiiili!-s' Mill, Ills, To, of WiiHhiiigion Co. v. Kowbuiil, |.s.S((, iiii Md.. ill! ;ilO. 
 
 ■' 171 et nfii. 
 

 
 90 
 
 INSUKA.NCt: LA'.V UF CANADA. 
 
 eludes every writing wiieivhy any oontniet of iiifiuraiicc is iiiade or 
 designed to 1)l' made, or is evidenced, not including sea insurance." 
 
 The [lolicy of insurance is hut the t'orni and enihodiment, the 
 expression and evidence of what has been agreed upon, adding 
 nothiiiir thereto and detracting nothing therefrom. 
 
 A policy of insurance is not an insurance n[ion the property 
 covered thei-eby, hut simply an agreement to iinlemnity the [)olicy- 
 liolder against loss by the destruction of such pro[terty by tire. 
 
 All policies are considered in law to be either ''on interest" 
 or "wager,"' ami to It.; either "o^tcn" or "valued" as to the 
 amount written. 
 
 58a. Interest policy. -An "interest" policy represents a real, 
 substantial, assignable and insurable interest in property covered 
 Ity the iiolicy, subsisting in the insured at the time of the issue of 
 the policy and at the time of any loss thereunder. 
 
 58b. Wager or gaming' policy. — A. "wager"' or "gaming"' 
 policy' is pretended insurance, where the [lolicy-holder has no real 
 interest at stake in the subjeiit of the insurance, and, consequently, 
 he can sustain no injury from any loss thereof. Such insurances 
 are now void in law. 
 
 58c. Open policy.-' — An "open '" policy is one where the value 
 of till' lU'Dperty at risk is ojien to proof after loss. 
 
 58d. Valued policy." — A ••vahuMl'" jiolicy is one wherein an 
 exact viihu^ is placed upon the pniju-rty c )ver(.'d at the time of the 
 insurance, and sin-h tixcd value will govi-rn the adjustment in cases 
 of loss. The value, being tixcd delinitely by agreement, cannot be 
 • lUestioiied. except in cases of frnudident over-valuation. 
 
 58o. Duration of risk. The duration of risk is the perioil of 
 time for which tin- risk is to run. " Tinu' is of tlu' esseiu'c of the 
 insui'ance contract," and it is a- requisiti' that it should be distinctly 
 stated in the policy. To meet this necessity all }iolieies have some 
 detinitc hour of the day specitied as the commencement, and the 
 same hour of the day ot expiration, as the termimition of liability. 
 
 The custom of regular " (|uarter-days" for the duration of 
 lire policies and the payment ot premiums still continues in (ii'eat 
 Britain. 
 
 I lnJ'm,H\\r, uikI 11 Geo. III., c. IS. 
 
 ]iifr((, Sill". 
 
 Jb. 
 
 m 
 
MAKING i)F CONTRACT, ETC. 
 
 91 
 
 Till' lisk cuds '.villi the term for -wiiicli it was mado. Judgo 
 Mai'kav ' (li^iCllsso^ the point whether, if a fire commoiiro in insured 
 buildings before the expiration of the tenn ot insuranee, and con- 
 timu' till after exjiiry of it, the insurers are liable, an<l to what 
 extent. He holds the liability limited to the extent of the damage 
 done (luring the subsistence of the poliey. 
 
 59. Description and conditions component parts of policy.— 
 
 The description of tlu' subject matter, except in a general way, is 
 not always, and the conditions are not usually, incorporated into 
 the body of the policy proper. 
 
 The former is contained in a separate paper termed the " ap- 
 plication " or '-declaration" (in England termed "proposal"), 
 while the latter are endorsed on the liaek of the policy. 
 
 They are both made eonipoiient parts of the policy by reference. 
 
 Statements of an insurance agent prior to the execution of the 
 policy are not admissible as against the c^' \»any to vary the terms 
 of the written contract. 
 
 I'aroi evidence may be adduced to explain, but not to con- 
 tradict a written do<.'ument, and in a commercial contract, mercantile 
 "Ustom will be the dictionary wherefrom to draw ex[ilanations.- 
 
 60. Policy obtained by fraud. A poliiy obtained by fraud 
 or by a breach of the high degree of good faith required as between 
 insurer and assui't'd, being only voidable, the jjarty defrauded, 
 whether insurer or assured, must take ste[)8 to avoid the contract 
 i)r he will be held by his (|uiescence to have assented to the contract 
 and selected to treat it as valid.' 
 
 If the insurer discovers that he has been induced by fraud to 
 grant the policy, and after such discovery accepts premiums and 
 treats tlie policy as good, it would seem that he would thereafter 
 be esto[>ped from denying its validity, nioi'e especially if he allows 
 the policy to be assigned to a Imitn jiile l.jider l\>v valui-.' 
 
 There are t liree courses open to tiie insurer on discovering that 
 he ha-i lieeu iml iced to grant the policy through fraud of the 
 assuretl : 
 
 I Mmkiiv on Kiro Iiin., l;t I-..V., 171. 
 
 - Howfi'M V. Sliiuiii. '2 App. Cuss, IdS, Ij()r(l I'liiniH, (.'.('. I. .('. 1J:)I ; Sulliv.iii v. 
 I'ottim Slati-s I,. Ins. Co., WCii. I:i;i, nl 427. 
 
 lirilisli Iviuilalili' v. (i.W.lt., ;!S I.,.I. (ClK. l;t', :ll I ; London Ash. v. .Miinscll, It 
 Ch. I)., :t(i:t. 
 
 ' i'fp Iiiu'lis 1,. I', ill S.oili^li Ivpiitivliif V. Hi not, I C.S.C. (Illi sciics), l()7li to KISl'. 
 
 m 
 
 I ' 
 
 ■W' 
 
■■^ 
 
 92 
 
 INSURANCE LAW OF CANADA. 
 
 1. To refuse to receive further iireniiumd and rei^udiate the 
 contract alter discovering the fraud. 
 
 2. To seek cancellation of the policy oiFering at the aarne time 
 to return all premiums paid.' 
 
 3. If the policy has matured, hy defending any action fcr 
 recovery of the insurance money.- 
 
 61. Valued policy.- In a valued policy the sum agreed on is 
 conclusive,' unless it exceeds reasonahle limits.' 
 
 Under the American authorities the overvaluation must he 
 " grossly enoi-mous " to admit of dispute.* 
 
 61a. Valued or open policies.— The policy either declares the 
 value of the thing insured, and is then a valued policy, or it con- 
 tains no declaration of value, and is then an open policy." 
 
 61b. Fraud not presumed unless overvaluation be exces- 
 sive. There is not, in Quehec, a presumption of fraud against one 
 who insures a thing for more than its real value. The presumption 
 is rather that he has done so with no had fiiith. If fraud I)c 
 alleged it must he proved. Men, it is said, differ as to values, and 
 insurers may gain hy overvaluations. But if the insured overvalue 
 and persist ui a valuation greater than his loss, particularly umler 
 an open policy, the appearances of good faith diminish. But a 
 slight excess ought not to he regarded. In the old marine insur- 
 ance cases, Emerigon was for holding that the excess should he of 
 a fourth at least, to he regarded. 
 
 Phillips, § 1183, holds that the fact of property heing valued 
 too highly is not, under the English law, of itself, a hadge of fraud : 
 hut Marshall, after Lord Mansfield, says, if much overvalued it 
 
 1 Prince of Wivlos Ass. Co. v. PiilmiT, 25 noav. (I().T ; London Ass. v. Mansell, II 
 Oil. D., :t(i;i, ;t72 ; British Ki|uital)lo v. (5.W.H., :ts L.J.Ch., i:)2, .•114. 
 
 - Iionilon & I'rovinclal Mjiriiie v. Soyrnour, 17 E<|. 85; .Soynnmr v. London & 
 Provincial, IJ L. T. C. P. Ill, note. ■' Arnonld on Ins., 1, :tOt ; May, IS. 
 
 * Uofrrnn, Code do (^oin., llStl, n. ; Pardcssus. Droit Com., .-)!t;l-l!-7 : Aianzct, .\ss., 
 221 et sc<i. ; 11 Kent's Conini., 27.'t, n. uf), and cases cited; Iloulay Piity is incorrectly 
 cited, sec Droit Cjni., tit. Id, par. 2(1, and .see infni ; Uarlcer v. .lanson, HI \V. U. illHl, 
 L. H. HC. P ■!>;(, :17 L. I. C. P. Kiri; lonidcs v. Pender, L. U. H Q. H. r.;tl. lit L. .1 . Q. 
 P. 31' I ■ ' . , '' N. S. .M7, 22 W. U. SHt. ■ May on Ins., IS. 
 
 ■5 i... . ^ >.« ; r.< Ins,, ;i, 4, 7 and 45 ; 1 May, 51, S :):i ; C. C. L. C. "JISO ; Potli. 
 A-i'. .i) at ■ i..nu'riRon, c. 1, s. 1; 1 Pliiilips, 15, ;i()5, H2(), c. 14, ss. 1 &2. pp. 
 K, •!, if^Ti: 6 *'iii":,i' statute llMleo. II., cap, 117; 2 Pardcssus, nn. 51»2, 5!);i, ,ilt4, |). 
 4.S1, v "<■■'._ . • a.\,. ;i; 1 Arnould, 12, lit, nn. 14, 1(1; C. Com,, a;t2, IKIK ; and see 
 
 ru 
 
MAKING OF CONTRACT, BTC. 
 
 03 
 
 must be with a bad view. Kent says that if the vahiatiou be 
 grossly enormous, it gives rise to a strong itresnni[)tion of fraud.' 
 
 eic. Wager or gaminer policies. -Wager or gaming policies, 
 in the ubjeot of which the insured has no insurable interest, are 
 illegal.- They are mere bets, and are prohibited in England, Can- 
 ada and the United States. In the United States, however, poli- 
 cies have been held valid which by their terms relieved the insured 
 t'rom the necessity of proving his interest in case of loss; whil ■ in 
 England such a clause is conclusive that the contrtict is a wager. 
 In the United States it is only prima facie evidence of ti wager, and 
 may be explained. 
 
 61d. Speculative policies on the lives of royal personages, etc. 
 
 — There are said to be a number of speculative policies in existence, 
 taken out in England in certain c(mipajiies by private individuals 
 • )n the lives of royal personages. These would seem to be clearly 
 wagi'r policies and consef|Ucntly illegal. 
 
 Speculative insurance contracts of various kinds are said to 
 bo ejected at Lloyds', London. 
 
 At the present time there is reported to be a great demand 
 tor JnbiK'e insurance, and it has bi'cn announced that a large inim- 
 ber of eoiitracrs are being eitected on the life of the Queen at the 
 rate of tive guineas per cent, tor three months. Much business is 
 also lii'ing ilone in insuring tlie lives of the roytd family, and in 
 guaraiitei'ing the I'oute of the royal procession. 
 
 The lives of Cabinet Ministers and other eminent [lublic per- 
 sons also t'orm subjects of speculative insurance, although not 
 necessarily of an illegal character, as such insurances are etfecteil 
 by servants or others to whom the death of tln' person in question 
 might mean a si'rious [leeuniary loss. 
 
 The iilea ol' insurance has even been extended so far as to pro- 
 teet a tbeati'ii-al manager against em[ity houses, and to cover the 
 >uccess of a newspaper and its continuation for a certain length of 
 time. 
 
 In shm't, there seems to be nothing in the shape oi' a risk 
 which is not liable to be insured against. 
 
 A most uni(p;e insurance, in some respects similar to insur- 
 ance again^t the birth of issue as reported sapra,'' la said to have 
 
 111 
 
 ' .Miu'kiiy on I''ire Ins., i;i L. N., 218 ; sci- iiUo index for S inj'ra. 
 '■' II), i>iif)r<i .Vli. ■' S2.V. 
 
\m 
 
 
 94 
 
 INSURANCE LAW OF CANADA. 
 
 
 n> 
 
 beta oftbc'tod at Lloytls' some time ago hy a lady, who iiisiirod 
 liersoll" for a i>romium of £o 10s. for the timo of two years ai;-auist 
 liio birth of twins. She gave birth to twins within tlie sporitiod 
 time and received the snm contracted for. 
 
 Insurance against want of employment has recently l^een tried 
 as a social experiment on the continent of Europe, but was aban- 
 doned as the results have not been satisfactory. 
 
 eie. Valued policies in British Columbia. An attempt has 
 <[uite recently i>een made to introduce the practice of valued 
 policies in JJritish Columl»ia, but upon diseussion the legislature of 
 that province rejected the bill on the ground that instead of being 
 a benefit to the public it would intlict a hardship and result in 
 raising the rates of premium. The insurance companies would 
 be put to the additional expense of having to appoint a special 
 valuator for each line of business, and it would also tend to 
 increase inceudia. ism by ottering greater temptation to dishonest 
 people.' 
 
 62. Delivery of policy consummation of agrreement. -The 
 
 agreement to insure exists prior to the drawing and delivery of the 
 policy and it contemplates the delivery of the policy as the consum- 
 mation of the agreement. Thus where plaintiff's agent applied for 
 insurance and agreed u[)0u all the terms, but lett the otHce bet( re 
 the [lolicy was tilled out, and a loss occurred before the policy was 
 tilled out, the Court held the comiiany liable.- But this ruling 
 would hardly seem sustainable in a case where the poliey made the 
 payment of the premium a condition preeedeiit to the validity of 
 the contract, as is now the ahnost universal itractice. 
 
 63. Action for premium, incompleted contract Stipulation 
 that contract ivas not complete until premium was paid. 
 
 The defendant at the recpiest of the local agent of tlie iilaintitf 
 company a()plied for a policy of insurance on his lite and submitted 
 to the usual medical examimition, at the same time telling the 
 agent that he was not then pre[iared to [)ay the premium. The 
 company accepted the application and sent the iiolicy to the agent. 
 It contained an express notice that until payment of the premium 
 it would be considered void ; and by the rules of the com[iany the 
 
 > Ins. imd I'Mii. Clironicle, Vol. XVH.. p. 1"S. 
 
 - Koliiie V. Ii's. Co. .Nui'lli Aiiierii'ii, 1 Wasli., I'.S.C.C, \Ki. 
 
MAKIX(J OF CuNTRAt'T, KTC. 
 
 95 
 
 aiiX'iit had mt authoi'itv to waive tliis i-oixlition. Tlii' agent called 
 upon defendant with the policy when he said he was still iinahlo to 
 pav the premium, hut told him to let it lie, and he would attend to 
 it in a liltle while. Three or four weeks after this, and witliout 
 t'urther conimunication with the detendant the agent forwarded the 
 [lolicy to him hy mail. The defendant took no notice of it and ilie 
 plaintifts l)rought this action to recover the premium as due upon 
 a completed contract of insurance and the policy duly issueih The 
 jury found that the defendant signed the aiiplication not intending 
 it to he used as an application and on the representation b}' the 
 agent that it would not he used without his consent. The judge of 
 the county court set aside the finding as being against evidence 
 and directed a new trial : Held, [)er llagarty, C..I.O., that there 
 being ample evidence to sustain the iinding of the jury and none 
 to show that the defendant had finally assented to or perfected the 
 projiosed insurance a new trial should not have been granted. Per 
 Burton & Patterson, J.J.A., tlie action failed because it was brought 
 upon an executed contract and there was no completed contract, 
 in fact, as it appeared by the plaintirt"s own declaration on the hice 
 of tlie policy that it was not to be operative until payment of the 
 pi'emium ; and no waiver of that condition prior to or contempor- 
 aneously with the delivery to the defendant, was proved.' 
 
 64. Premium not paid and policy not delivered, contract 
 incomplete. If premium has not been paid and there is no delivery 
 of the policy the contract is /<;•/»(« /)<('/e incomplete, and he who 
 claims under it must show that it was tlie intent of the parties that 
 it should be operative notwitlistanding these facts. The presumption 
 of law is that the (Udivery of th(> policy and the payment of the 
 premium are dependent upon each other.- 
 
 65. What constitutes delivery. To constitute a di'livery ot' 
 a policy it is not necessary that there should be an actual manual 
 transfer from one [larty to the other. The agreement u[ion all the 
 terms and the issue and transmission of the policy to the agent for 
 delivery, without condition is c(piivalent to a delivery to the 
 insureil.' 
 
 66. Policy not delivered. Premium not paid. No notice of 
 death, 'i'his was an action on a policy of insurance bearing date 
 
 I Smi Life Ass. (Ni, v. Pane, 1.") A.H.. 701. 
 
 - lloiiniiii V. I'huiiix Mut. L. Ins, fo, 17 Minn., l.".:i al I.V.I. 
 
 ' May, (H). and soe Kried v. Uoyn] Ins. Co., there ritod, 
 
 111 
 
96 
 
 INSURANCE LAW OF CANADA. 
 
 at Hartford, Conri. It was a policy on the life of ^[. in favor of 
 K. M. and pnrported to be in consideration of a sum of ^73. Y6 in 
 gold tluly paid, and the conditions were that the policy was to 
 become due three months after notice to the company of the death 
 of M. A claim being made under the policy, the defendants 
 resisted payment on the ground that K. ^[. never paid them any 
 money at all ; that it was the insured, her brother, who sent to the 
 office ot tiie company and succeeded in getthig the insurance on 
 giving a note for the premium, and the note went to protest and 
 was tendered back to him. The policy could not be delivered, 
 according to the rules of the company, without the premium being 
 paid. Held, that the plaintitf, however, had proved enough to 
 show apparently a right of action. But there was a fatal defect in 
 the case. Tiiere was no notice and proof of the death of the 
 insured as rcfpiired by the conditions of the policy, nothing to 
 siiow that the time for payment had arrived. So that while the 
 defendants failed upon their other pleas they must succeed upon 
 the general issue. The plaintiff might sue the com^iany again, 
 and succeed upon making the pro[>er proof Action was dismissed 
 reserving plaintiff's recourse.' 
 
 67. Delivery of policy not proved. In another case plaintirt 
 having failed to prove that the policy of insurance had bi'cn 
 delivered to defendant, the premium note, on which the action was 
 founded, the interim rccei[it and the aiiplication of the defendant 
 math- for the i)ur[tose of said insurance, were held null ami without 
 cffect.- 
 
 67a. Non-delivery of policy a waiver of conditions.— 
 
 The non-delivery of a liolicy to theinsureil for short term insurance 
 lia^ l)een held a waiver on the part of the company of the condi- 
 tions contained therein.' 
 
 68. Delivery of policy not countersig^ned Escrow. On an 
 
 action on a policy the aii[tellant claimed that thei)olicy was never 
 delivered, and that the premium had never been paid, aiul that it 
 was not a perfected contract between the parties. The [lolicy was 
 sent from Toronto to the agent at Halifax, to receive the premium 
 
 ' Maybury v. I'liu'iiix Lite Ins. Co., S. C, Montreal, ISTif. Ueferred to in Ste- 
 phen's DiKest, II., 102. 
 
 •-' (iilcs V. .Iac(iiU's, 2i) L. C. .J., l;tS, ISS,') ; M. L. H., 1 S. C, Kili, >t S L. N., UK). 
 ' Q. B., Lalleur & Citizens Ins. Co. I L. N., ulH, 22 L. C. J. 247 and see infra. 
 
 I 
 
 ^1 
 
MAKING OF CONTRACT, ETC, 
 
 97 
 
 lilt 
 )iit. 
 
 ;uul oouiitersign the policy and deliver it to the party entitled. 
 The agent never countersigned the policy, and on one side of the 
 policy the following memo, was printed : " This policy is not 
 
 valid unless countersigned by agent at Countersigned 
 
 this day of , agent." The agent, in his evidence, said he 
 
 delivered the policy to W. O'D. (the party assuring) not counter- 
 signed, in order that he might read the conditions, and swore the 
 premium had not been paid. The policy was found among W. 
 O'D.'s papers after his death not countersigned. The policy was 
 dated 1st October, 1872, and the first premium would have covered 
 the year up to the Ist October, 1873. W. O'D. died on the 10th 
 July, 1873. The case was tried before McDonald, J., without a jury, 
 and he gave judgment in favor of respondent for $3000, the 
 amount of the policy, and this judgment was confirmed by the 
 iSupreine Court of Nova Scotia. 
 
 On appeal to the Supreme Court of Canada it was lield, per 
 Ritchie, C. J., and Strong and Taschereau, J. J. (Fournior and 
 Henry, J. J., dissenting), that the eviden , established the fact 
 that the policy had not been delivered to the assured as a com- 
 pk'tcd instrunu'iit, and therefore the company was not liable. 
 
 I'er Gwynne, .1. That the instrument was delivered as an 
 escrow to the agent, not to be delivered as a binding policy to 
 AV. D. until the premium should be paid, and until the agent 
 ^lll)lll(l in testimony tliereof countersign the policy, and that tlu're 
 was no siifhc'ient evidence to divest the instrument of its original 
 fliaraote." of an escrow, and to hold the defendants bound by the 
 instrumoiit as one comjiletely executed and delivered as their deed. 
 The appeal was allowed and a new trial ordered.' 
 
 Ill the same actit)ii the case having gone to trial for the third 
 time : on the trial the learned judge admitted in evidence an entry 
 ill the books of his father made by the deceased holder of the policy 
 showing a payment to the agent of the company of an aniount 
 equal to the premium, which the evidence showed was paid by 
 money given to deceased by his father. lie also admitted the 
 evidence of the agent, who had since died, taken at a former trial 
 v)f the case, to the effect that the premium was not paid, and that 
 the policy was only given to the deceased to enable him to examine 
 
 ' Supreiiu' Court of Canada, Confederation Life AssociatioH of Canada v. O'Don- 
 nell, lOS. C. K. !»!'. 
 
 pi 
 
II 
 
 IT 
 
 ■fpf 
 
 98 
 
 INSl'RANCB LAW OP CANADA. 
 
 it, ami not as a duly executed poliey. Tlio jury t'ountl ii verdict 
 for the iilaiiititt, but stated, in answer to a ([uestion submitted by 
 the court, tluit tlie ai^ent bad l)een instructed not to tleliver the 
 policy until it was countersigned. The Supreme Court of Nova 
 Scotia affirmed the verdict. On appeal to the Supreme Court of 
 Canada : Held, ]ier Ritchie, Cf., and Gwyune, J., that tlie policy 
 was only delivered to the agent as an escrow and as it was never 
 duly executed and delivered the company was not liable. Per 
 Strong, J. : That the memorandum as to countersigning was not a 
 condition of the policy and the plaintifFwas not barred by non- 
 compliance with its terms ; but the evidence of the entry in the 
 books of the deceased was improperly admitted and there should 
 be a new trial. Per Fournier and Henry, J.F. : That the policy was 
 properly executed and delivered and as there was sufficient evidence 
 to sustain the verdict indi'pendent of the evidence alleged to have 
 been improperly ailmitted at the trial, the appeal should be dis- 
 missed. Per Henry J. : Under the present practice tiie court is 
 bound to uphold a verdict if there is sufficient legal evidence to 
 establish it independently of evidence improperly received, and 
 cannot take into consideration the ettect on the jury of such illegal 
 evidence. Strong, J., contra. 
 
 The court being thus divided in opinion a new trial was granted.' 
 
 In the same action the case having again gone down for trial, 
 evidence was given of the i>ayment of the premium and rebutting 
 evidence by the i-ompany that it had never been paid. The jury 
 found that the premium was paid and the policy delivered to the 
 insured as a completed instrument, and a verdict was entered tor 
 the plaintirt'and affirmed by the Supreme Court of Nova Scotia. 
 
 Held, atHrming the judgment of the court below. Sir W. d. 
 Ritchie, C.J., and Gwynne, J., dissenting, that the necessity of 
 countersigning by the agent was not a condition precedent to the 
 validity of the policy, and the jury having found that the premium 
 was paid their verdict should stand. 
 
 The judgment on the former appeals in this case was, on this 
 point, substantially adhered to." 
 
 69. Delivery of policy.— Tn this case it appeared that an 
 application had been received by the company, and the party 
 
 I Confeder. Life Ahs. of Uaimdji v. O'Donnell, i:J S.C.H., 21S. 
 ^ Iflem, KiS.C.U.,"!?. 
 
MAKIMi OF CONTRACT, ETC. 
 
 99 
 
 'onliot 
 ted by 
 ev the 
 
 Nova 
 ourt of 
 
 policy 
 3 never 
 >. rol- 
 ls not 11 
 )y non- 
 ,• in the 
 
 slionltl 
 ie'v was 
 viilonri' 
 to liiivo 
 
 be (lirt- 
 oonrt is 
 Icnio to 
 oil, ai\(l 
 b ilU't;;al 
 
 franti'tl.' 
 lor trial, 
 obuttiiii:: 
 
 bo jury 
 to tbo 
 
 orod tor 
 
 ootia. 
 
 ir W. .1. 
 
 ssity of 
 
 it to tbo 
 
 iromiinu 
 
 on this 
 
 tbat an 
 party 
 
 niakini; tbo application bad possossioii of a policy of insiiranco in 
 tbo <-ompany to wbicb application bad i»oen made, and for wbicli a 
 noto for tbo promiuni bad boon oxooutcd to tbo company. It was 
 bold Itv tbo Kansas Supromo Court tbat tbis was ovidonoo gutHoiont 
 to go to tbo jury, and tbat tbo court could not say tbat tbcre was 
 a failure of proof sbowing tbat tbe insurer bad o.Tocutod and 
 delivered a iiolicy to tbo insured.' 
 
 70. The preminm. In tbo old policies tbe words " I am con 
 
 tent witb tbis assurance," were inserted as an acknowlotlt^mont 
 tbat tbe insurer was satistiod witb atid would not later dispute tbo 
 sulficiency ot tbo itromium. Tbo a(kHpiacy of tbe premium bow- 
 ever is now purely tbe insurer's concern. 
 
 If a policy containing; a condition tbat it sball not be bindiiiij: 
 until tbo premium is paid and also an acknowledgment of tlie 
 rocoiiit o^'tbo premium is delivered to tbe assured before payment 
 of tbe premium tbis raises a presumption of waiver of sudi 
 condition and <»f an intent to irive credit for tbe premium, tbe 
 condition notwitbstanding." 
 
 Wbon tbo itolicy admits payment parol evidence tbat payment 
 has not actually boon nuide is imidmissible.' 
 
 70a. Griswold's Definition of Premium. — Promiuni is tbe 
 considorati,)!! for tbo insurance. It nuist beset forth in the policy, 
 both amount and tbo rate per cent., which nmst be fixed before 
 the poVuiy will attach. 
 
 If the policy bo delivered without demand for payment of the 
 premium at the time, it raises the presumption tbat credit is 
 intended. An ai::reement to give credit for premiums lenders the 
 policy ' alid and binding as against tbe company. 
 
 An agroemont by an agent to bo responsible to his com[)any 
 for the premium is a payment of the premium as between the 
 company and the insured. Where an agent gives credit for the 
 premium and makes a return of tbe policy in his account with his 
 company such premium is paid ; but the agent has a lien upon tbe 
 policy for that amount, only so long, however, as be retains the 
 
 ' (lernmii Kin- Ins. Co. v. l.iiftKiirt (1H!*2) 17, Kan. (HUl. 
 
 - Miissf V. Ilochcla^u Co., 22 L.C.J. , 124, IJKents Com,, 2(i(), Anderson v. Tliorntoa 
 H Kx. He I). 425. 
 
 • Anderson v. Thornton, 8 Kx. U. 42ri, Diilzell v. Mair, I Ciinip, 5;t2, DcOaminde 
 V. I'iKon, 4 Taunt, 2lt'. 
 
 m 
 
 ■4l. 
 
m^ 
 
 m 
 
 1 
 
 
 p 
 
 H ■ 
 
 1 
 
 1 
 
 100 
 
 INSURANCE LAW OF CANADA. 
 
 policy in his own hands : if given up to the insured his lien goes with 
 it and, in the event of loss, he cannot stand in the place of the 
 company and claim payment out of the sum due to the insured 
 under the policy.' 
 
 71. Prepayment of premium. -Prepayment of the premium 
 in not in lavr a condition precedent to the making of a complete 
 contract of insurance ; hut it is the almost universal practice ot 
 insurance companies (other than marine) to stipulate that the con- 
 tract shall not begin to take effect until the premium lias been 
 paid. This stipulation is enforced l»y the courts, and they refuse 
 to give effect to a contract where a loss has liappened after an 
 agreement to issue and accept a policy, but ^)v!fore the premium has 
 been paid and the policy isf ued, or even when it has been delivered 
 as an escrow. - 
 
 72. Giving credit for premiums. Bunyon •' says that insurance 
 offices may agree to give credit to the insured for premiums and 
 liaml him receipt, and where such credit is given it is eiiuiv.vlont 
 to payment. This must, however, says Judge Mackay,' l)e taken 
 to lie subject to the proviso that the Act of incorporation does not 
 prohibit such a }iroceeding. In the absence of fraud, the policy 
 statement is conclusive as to premium ]>aid.'' In one case the in- 
 surance c^)mpany took the insured's note for the premium, pay- 
 ment whereof was acknowledged, and policy delivered. The in- 
 sui'i'd failed to pay the note at maturity. Held, that the insurance 
 not the less attached. The policy was held to admit a paieincnt 
 cff'irlif to the satisfaction of the insurers, dudgniciit went in favor 
 of the insured, less the anunnit of the note, and this was confirmed 
 by the Queen's Bench at Montreal, the five judges being unani- 
 mous.'' 
 
 73. Law in Q,uebec and in Ontario as to loss within term 
 c f grace Payment of Premium -Credit Authority of Manager. 
 
 — In Queliec tlu > is no doubt that where a month's grace is 
 given tor jiayinent of renewal premium, the death of the insured 
 ".'iiliin the month and before payment of the premium will not pre- 
 
 1 GriKwold, 4S.i. 
 
 'M'orlur's I.iiws of Insnriuici'. 711; Confuderiitlon Life AHsocliition of CiiiiiKiii v. 
 O'Doiinell. Id S. C. H. !>•.', i;t S. C. It. UlS, Itt S. C. H. 717, cili>d »«/</« ii tW, May, U 
 •' p. Kt. ■• i:t L. N, 175. ■'' Smith's Merc. Law, a57. 
 " CiiltiviHors' Ahs. Co. & (trnniiiioii, 3 L. N. lit. 
 
 ii 
 
MAKING OF CONTRACT, ETC. 
 
 101 
 
 vont a valid tender of it being made by his representatives within 
 the montli.' In Ontario, however, the judges of the Court of 
 Appeal are divided upon this question, and it must remain doubt- 
 ful until either the Supreme Court of Caiuida has pronounced u[»on 
 it or further legislation has made it clear.- Of course where the 
 stipulation on the policy clearly gives the right to the represejit- 
 ative no diflictdty vim arise, and such a stipulation will l»e enforced. 
 The reasoning of Burton and MacLennan, J.J., seems convincing.' 
 
 By an aiiplication for lite insurance, the interim receipt and 
 the policy, it was provided that no policy was to be in force until 
 actual payment of the first premium to an authorized agent and 
 the delivery of the necessary receipt signed by the general manager 
 of the company. The general manager, wbo was paid I)y com- 
 mission, made an agreement with an applicant for a policy that 
 work done by the applicant for himself personally would be taken 
 in payment of the first premium, and gave him a receipt for it 
 without, however, paying the company. 
 
 Held, that the com[iany was not bound.' 
 
 74. Acceptance of note as cash for premium.—AV'^heii pre- 
 mium is paid by noti-, the failure of the insured to pay the note at 
 maturity does not annul the policy where the note had been 
 accepted as cash and the recei^jt acknowledged by the policy.'' It 
 would, of course, be otherwise if so stipulated in the note. 
 
 75. Set off in compensation -Damages for fire, against 
 premium due.— An insured cannot set off against his premium duo 
 damages he pretends to have suffere<l by a tire, as his claim for 
 •lamages is not clear and li(|uidated.''' 
 
 76. Premium notes by agent of a railway company -Policy 
 in his name -Marine insurance. The agent of a railway company 
 gave his own individual notes to an insurance company for a 
 premium of marine insurance and took the policy of insurance in 
 his own mime, and afterwards gave the notes of the firm to which 
 he belonged, for the same debt. Held, that the railw.iy company 
 was liable in a direct action to the amount of the premiums, and 
 
 ' C. 0. L, C, 'jris;!, ivs.-,. 
 
 •^ Miiiiufiiilurcrs' I.ilV Ihh. ('o. v. (ionion, ai A. H. :iiM, 
 * Tifi-imn v. I'l-oplc'- l-lfc Ins. {*o,, 2i\ O. II. AIM!. 
 "(Jiiltiviitors Ins. \ .. &(iriinimoii, y.I)., 11 l,.N., lii. 
 "(ille.s V. (liroiix, i:i H.K,, tltVi, 
 
 li/iiii. 
 
 1 
 
102 
 
 INSDRANCE LAW OF CANADA. 
 
 tliiit on a»i intervention ])y the firm, tlie renewal notes t'yled in the 
 case would he declared inoperative as against tVie intervening 
 parties and he ordered to he delivered up to tiiem.' 
 
 77. Life insurance -Premium note -Non-pasrment of— For* 
 feiture. — A very important decision recently rendered hy tlio On- 
 tario courts and finally liy the Supreme Court of Canada is that of 
 McGeachie v. North American Life Ass. Co. The tacts wmy he 
 summarised as follows : The defendants insured the life of the 
 plaintifl's hushand and issued a policy to him, taking liis promis- 
 sory note for the amount of the first year's premium. The note 
 was several times renewed, and at the death of the insured, which 
 took place within the first year, the last of the renewals was over- 
 due and unpaid. During the currency of one of the renewal notes 
 the insured wrote to the defendants asking them for their terms 
 for the cancellation of the policy, to which they replied that liis 
 re(|uest that they should cancel the policy was unreasonahlc. On 
 the day heforc the death of the insun'd the defendants wrote to 
 liim that they had expected to hear from him with a remittance, 
 and asked him to give the matter liis immediate attention. Alter 
 his death the amount of the note and interest was teiulered to the 
 defendants who refused to accept it. In the api)lication lor the 
 insurance, which was madi' jiart of the contract, it was provicU'd 
 that if a note should he given for a iireniium and should not l)e 
 j)aid at maturity, the insurance or policy should thereupon hecome 
 null and void, hut the note must nevertheless he paid : and 
 endorsed on the policy was a ju-ovision that, if any premium note 
 should not he paid when due, the policy should he void and all 
 payments matle upon it I'orfeited to the defendants : — 
 
 It was first held in Q. B. I), that the p(dicy was voidahh' upon 
 default heing nuide in the ]»ayment of the premium note, hut only 
 at the election of the defendants, that, upon the evidem-e, tlu' 
 <lel'eii(lunts had elected not to i'orleit it hut to continue it, and luid 
 treateil it as subsisting u[) to the lime of tlu' death, that the policy 
 Iteing in torci^ at the tinu' of the death no suhsenuent act of the 
 defendants could atlect the jilainfitfs claim : — 
 
 Held, also, in C^. \\. D. upon the evidence, that it could not he 
 said that tlic defendants were at any time electing to I'orfeit the 
 
 I Moiitri'al Klrt" Ins. Co. il Tlir Sliiiisinid Slu'ironl & ('Immlily Hnllwnv Co. .t 
 Wood ft, 111, lit I,. C. It., ;it:i, .S. ('., IHilil. 
 
103 
 
 ]iolicy and nevortlieless insisting upon the payment of the note, as 
 tliey might have done under the provision tlierefbr in the appli- 
 i-ation.' 
 
 But the Court of Appeal reversed tliis decision and lield that 
 the insurers were not bound on non-payment of the note to do any 
 act to determine the risk. In the absence of an election to con- 
 tiinie the risk it comes to an end and mere demand for payment of 
 the note and a refusal during the currency of the note to accede to 
 the insured's re([Uest for cancellation of thepolicy are not suHicient 
 evidence of sucii election. ■ 
 
 And the Supreme Court of Canada afhrmed tliis decision.' 
 
 Owing to the importance of this case it is well to consider its 
 details at some length. The plaintiff l>y her statement alleged : — 
 
 (1.) That she was a widow and resided at St. Catharines, and 
 the defendants were an insurance corporation and had tlieir head 
 olfice at the city of Toronto in the County of York. (2.) That the 
 ilefendants on or about the 6th day of December, A.!). 1889, 
 through their agent at the said city of St. Catharines is.sued tlieir 
 policy 7710, uiion the i)lau known as the Semi-Tontine Dividend 
 plan up(»n the lite of one Robert McGeachie the husbuiul of the 
 above nametl plaintiff, whereby the said detendants, amongst other 
 things, promised to j)ay to tlu' said plaiiitill in case of tln^ death of 
 the said Uol>ert McCileachie within the Tontine period I'.td!) the 
 sum of one thousand d(tllars. (:{.) That the said lloliert Mcdeachie 
 departed this lite on or about tlu- titli day ot' Xowmlter last (1890) 
 and during the eoutinuaiu'c of the said policy. (4.) That the said 
 defendants had received proper proof (tt the death of the said 
 Ivobert McGeai'hie in accordance with the terms and conditions of 
 said policy. (5.) That all conditions had been fulfilled, all things 
 had happened and all times had elapsed necessary to entitli' the 
 ^aid ]»laiiitiir to be paiil the same sum ol' one tiiousand dollars, but 
 till- said del'en(biiils had iH'fnsi'd to [lay tlii' same. 
 
 The defencjants liy tlieir slalenient of defence alleged : (1.) 
 'i'hal the policy I'etei'i'cd to in I be second |iMragrapli of the state- 
 ment of cliiini und the covenants tliereiii made on tlic pari oftlie 
 defendants were on the lai'c of tln' said policy expressed to be in 
 consideration of the payment oftlie ainiual premium of SJf.'il.lO to 
 be paid in advance to the company at its bead «ttHci' in the city ot 
 
 1 
 
 I'll 
 
 I M('(i«ii(lii(' V. Nortli Aiii.'iicii I.ifc Ass. ("d,, 2-1 (). II., l.'il. 
 ■•' Jdiiii, lid A. H., IS7. 1,1,111, it S. »'. I{., IIS. 
 
 ■".V 
 
 i 
 
V 
 
 104 
 
 IN30RANCE LAW OF CANADA. 
 
 Toronto. (2.) That the premiiiiu of $31.10 in the said policy 
 reft'iTod to had never been paid. (3.) That in the application for 
 the said policy, which application was signed l)y the said Robert 
 McGeachie, it was provided that if a note, cheqne, draft or other 
 obligation should be given for the tirst or a subsequent premium 
 or any part thereof, and if the same should not be paid at maturity, 
 it was agreed that any insurance or policy made on that ap[>licati<>n 
 should thereupon become null and void, but the note, checjue, 
 draft or other obligation must nevertheless be paid. (4.) Tlmt the 
 said applioation was by the terms of the said policy made a part of 
 the said policy. (5.) That the said policy contained ii provision 
 that the same was issued and accepted upon certain special pro- 
 visions therein printed and written and also upon the conditions on 
 the back thereof. ((5.) That the said conditions endorsed upon the 
 back of the said policy contained among others the following : '• It 
 any premium note, cheque or other obligation given on account of 
 a premium be not paid when due, the policy shall be void and all 
 payments made upon it shall be forfeited to the company." (7.) 
 That the said Robert McGeachie being unable to [»ay the premium 
 upon the said policy, the company agreccl to accept a promissory 
 note for the amount of the same. (8.) That the said promissory 
 iuite was not paid at the maturity thereof and had never yet been 
 paitl. That the said note was renewed but the renewal thereof had 
 not been paid and renniine(l in the hands of the defendants overdue 
 and unpaid. 
 
 The plaintiff joined issue upon the said statement of defence 
 and for a reply thereto said. (-.) That the one month of grace 
 allowed for the payment of premiums u[ion said i>olicy had not 
 expired at the death of the said Robert -\[c(jleacliio and that before 
 the I'xpirafion thereof the said plaintitf otiered to pay the said note 
 ]>ut the defendants refused and still refused to accept the same. 
 And further said, (3.) That if the said company had any right to 
 cancel the said policy when said renewal note became due before 
 the expiration of said one month, which the plaintiff <lid not admit 
 but (lei\ied, that the said company expressly waived their rights 
 umler saitl policy and oidy sought to exercise such rights, it any, 
 when they learned of the death of said Robert McGeachie and with 
 the oltjcct of preventing the plaintiff if possible from recovering 
 upon the said policy. And the plaintill said that in any event the 
 conditions uiioii sai<l policy and to which the defendants referred 
 
MAKINci OF COKTRACT, ETC. 
 
 105 
 
 ill thoir statement of defence were unreasonable and unjust and 
 should not l»e enforced against the pluintitt. 
 
 The caufio \va^ tried by Street J. at St. Catharines, Ontario. 
 
 The aii[)lication tor the policy sued on, signed by Roi)ert 
 Meljleiichie was put in evidence, whieh euntained the following 
 provisions : — " It is hereby declared and agreed that all herein- 
 l)et'ure eontained with the aceompanying reports and agreement 
 aiul this declaration and agreement constitute an application to the 
 North American Lifi' Assurance Company for the insurance pro- 
 posal ; tliat a poliey, if issued in the company's usual form and 
 delivered, shall be the only aceeptanee (d'this ap^dieation ; that any 
 person liaving or claiming any interest under such policy adopts as 
 liis or her own each and all of tlie statements in said application, 
 all of which statements hereby declared to ])e material to the 
 contract, whetlier written by his or her own hand or not, and 
 declares the same to he full, complete and true as tiicts and such 
 statements are the only statements upon which the policy, if 
 issued will be tbunded ; tliat such policy will' be accepted when 
 presented subject to the terms in and upon the said policy set forth. 
 
 '' That the entire contract shall consist only of said application 
 and policy and shall l)e construed and interpreted as a whole and 
 in each of its [larts and obligations accoi'ding only to the terms 
 thereof; that no part of the aiiplieation or ]iolicy will be varied by 
 any usage or custom whatever ; that the place ot contract for all 
 purposes shall lie the head otHco of the eompanj' in Toronto, and 
 all rights, claims and remedies not based on such contrat't are 
 hereby waived. 
 
 "That no agent ot' the company (whether called general or 
 otherwise) has power to bind the company in any way ; nor is 
 any agent authorized to receive any iiayment due to the company 
 except when provided with a receijit therefor signed by the I'ri'si- 
 dent or Maiuiging Director in ai.'cor(liiin'c with tin; terms of such 
 receipt, every sui'li payment being thi'u not overdue. 
 
 " That no infornuitinn or statement not contained in said 
 application, no notice of any lads touching said application or said 
 policy however made, given, received or ac(piirt>d shall atlect the 
 cotupany uidess forthwitb communicated in writing by tlie insured 
 to its President or Mamiging Director at his head otHce and 
 assented to by him in writing for the company ; that no ugont of 
 the company or any other [lerson except the President or Vice- 
 
lOG 
 
 INSl'RAXCE LAW 01- CANADA. 
 
 rrofiulont or tlio Maiiairii',!J: niivctor uihUt tlio diroction of the 
 Board of Directors lias powor to iiiako, altor, rovive or roiunv a!iy 
 coiitrat't of insuraiieo, grant pormits or waive forfeiture or any 
 eoiidition of such jtoliey. 
 
 " It is hereby further agreed tliat sliouhl tlie eonijiauy upon 
 any oceasion eouseut to renew or revive a policy after the same has 
 become null and void every such renewal or revival shall always 
 be understood as in no wise creating any precedent for waiving or 
 as a waiver of any condition or agreement in the policy or appli- 
 cation. 
 
 " That under no circunistan^'cs shall the policy be held to be 
 in force until the actual ]>n 'jii-- * U} and acceptance of the first 
 jiremium duo thereon by ;i;i : I'zed agent of the I'ompany and 
 the deliver}' to the insure<l o' cessary receipt signed by the 
 
 Afanaging Director, the life of the peison proposed for insurance 
 being at the time of such p.'Viuciit in t^'> same condition of health 
 as stated in this application, luid !li> .if iiny iraululent or materially 
 incorrect averment has been made or any material information has 
 been withheld by the insured all sums which shall have been paid 
 to the company upon account of the insurance made in conseciuence 
 hereof shall lie forfeited and the insurance be absolutely null and 
 void ; that no presumption of death shall arise from disappearance. 
 
 " That it a note, iheque, draft or other obligation bo given for 
 till' lirst or a subst'(|ucnt premium or any jiart thereof if the same 
 be not paid at maturity, it is agri'cd that any insurance or policy 
 made on this application shall thereupon become null and void, but 
 the note, cliiviuc, draft or other obligation must nevertheless be 
 paitl. 
 
 " That I have read or beard read and understood the said 
 application and this agri'cment part thereof, and assent to all 
 therein contained, ami 1 agrei' to accept tlie jtolicy when issueil on 
 tile tt'rms nu'iitioned herein and pay the company the premium 
 thereon in consiileration of tin'ir acceptance of this application." 
 
 The following receipt was put in : " North American T/ife 
 Assurance Comiiany ; Head office, Toronto, Ontario ; first premium 
 #.'n. 10 : sum insured $1,000. IJeceived this sixth day of December, 
 ISHO, note for thirty-one ,'„"„ dollars i()rthe lirst premium on policy 
 number 7710 on the lite of \{. Mcticachie. I'scpiiri', subject to all 
 the provisions ot' the said ]iolicy and tlios<' on tlu' back tlu'reof 
 hereby incorporated herein. AV.M. McC^mik, Managing Director." 
 
 ■■';s<i 
 
 4 
 
 i! ^ 
 
MAKIN(i OF CONTRACT, ETC. 
 
 107 
 
 " Tlie policy is not vulid or operative unless this receipt is 
 countersisi-iu'd by the ;igeiit of the conipany on tlie actual date of 
 jiayTnetit within thirty days of the issue of the policy, the life 
 insured being then as stated in the application for tlie policy. 
 
 " Wm. it. ITewson, Agent at St. Catharijies. 
 
 '' Especial attention is called to tlie back of this receipt." 
 
 And on the back ot this receipt was endorsed the following : 
 '* Provisions for payment ot premiums ; all premiums are due at 
 the head ofRce of the company in the cit^' of Toronto, Province of 
 Ontario at the date named in the policy, but at the pleasure of the 
 company suitable persons may be authorized to receive at other 
 jilaces such payments, but only on the production of the company's 
 receipt therefor signed by the President or Managing Diri'ctor. 
 Xo payment of a premium however made except in exchange for 
 such receipt will be recognized ])y the company or he deemed by 
 either ]iarty as valid payment. The revival of a policy must be 
 understood not to constitute in any case whatever any obligation 
 on the jnirt of the company to waive the payment of a future 
 premium when due."' 
 
 " Comi'UMicenient of insurance year and balai -c of year's 
 premium, ^v.11 premiums are payable anmuilly in advance ; when 
 the premium is maile jiayable in semi-annual or ([uarierly instal- 
 ments, that jiart of the year's premium, if any, wliich remains 
 unpaiil at the nuiturity of this contnict shall be regarded as an 
 imlebtediu'ss to the company on account of the jiolii-y and shall be 
 (K'ducteil from the amount of the claim, and if any premium or 
 •obligation for a premium be not paid on or before the day it is 
 due, tlie company shall from that day be released from all liability 
 uikUt the policy excei»t as modified by the non-forfeiting terms 
 tliereot', if the policy is tliiMi entitled to the benelits thert'of. and no 
 crt'dit for surplus accunuilated upori the policy shall be deemed 
 aii[ilicable to tiie payment of any premium uidi'ss the pre\ious 
 consent of the company ])v obtained in writiiiir. " 
 
 "X. P) — Agents are not authorized to make any change 
 uliatever in receipts tor premium or to waive torfeiture or any 
 condition of a policy or [iri'mium receipt ; that can be done only by 
 writing signed by llie President or Managing Director under the 
 direction ot'tlie Directors." 
 
 The policy under the s»'al of the defendants was put in, whidi 
 provided that the defen<lant company, in considi'ratiou of tin- 
 
 

 |! 
 
 108 
 
 INSURANCE LAW OF CANADA. 
 
 I' 
 
 if; 
 I 
 
 application tor this policy and of tlie statements and agrccinonts 
 therein contained liereby made a part of this contract and of the 
 annual premium of thirty-one dollars and ten cents to be paid in 
 advance to tlie company at its head office, in the city of Toronto 
 on the delivery of this policy and thereafter on the fifth day of 
 December in every year during the term of nineteen years, insures 
 the life oi Robert McGeachie, of St, Catharines, in the county of 
 Lincoln and Province of Ontario, and promises to pay to liis wife, 
 Emma Jane McGeachie, should his death occur within tiie tontine 
 |>(M'iod hereof, otherwise to himself, liis executors, administrators, 
 or assigns the sum of one thousand dollars, tirst deducting there- 
 from the balance of the current year's premium, if any, and all 
 loans on account of this policy, upon satisfactory proof at its head 
 office of the death of the insured during the contiiunmce of this 
 policy and ii.' surrender with the last renewal receipt thereof." 
 And that "this policy is issued and accepted under the Company's 
 semi-tonti.iC dividend pl.in upon the fcdlowing special provisions 
 printed and written and also on the back hereof, all of which are 
 hereby incorporated herein and made part hereof," 
 
 " Provision G. — A grace of one month will be allowed in 
 payment of premiums on policies in this class, at the expiration ot 
 which time if said premiums remain unpaid, this policy shall 
 thereupon become void. But a re-instatement will be permitted if 
 application therefor be made in writing to the comjiany at its head 
 office within two months after the expiration of the month ot 
 grace, accompanied with a certificate of good health from a medical 
 examiner of this company on the company's form number 24, 
 subject to its approval ; provided always that whenever advantage 
 is taken of this grace or of the privilege of re-instatement, interest 
 shall be paid to the company at the rate of seven per cent per 
 anmim for the time deferred," And that no provisions of this 
 contract can be changed, waived or modified, or jiernjit granted, 
 except by a written agreement signed by the President or Vico- 
 I'resident or the Managing Director of the com})any." 
 
 And on the back of said policy there was endorsed the follow- 
 ing : "This policy is issued and also accepted liy the insured ami 
 assured upon the following additional provisions and agreements 
 therein made a part thereof." Among which provisions so 
 endorsed were the following : "If any i»remium note, cheque, or 
 other obligation given on account of a premium be not paid when 
 
 
MAKING OF CONTRACT, ETC. 
 
 109 
 
 due, this policy shall be void and all paynientB made ujioii it shall 
 be forfeited to the company." " That under no circumstaiicee shall 
 this policy he held to be in force until the actual payment to and 
 acceptance of the iirst premium due thereon by an authorized 
 atrent of the company, and the delivery to the insured of the 
 necessary receipt signed by the Managing Director, the life of the 
 person proposed for insurance being at tlie time of such payment 
 and delivery in the same condition of health as stated in the 
 application for this policy." "Should the company upon any 
 ocL-asion consent to renew or revive a policy after the same has 
 become null and void, every such renewal or revival shall always 
 be understood as in no wise creating any precedent for waiving 
 and not as a waiver of any condition or agreement in the policy or 
 ;iplilication." 
 
 The note mentioned in the said receipt was not produced but 
 it ;ii)pca]ed to have been dated December 4th, 1889, at six months, 
 and to have Itorne interest at the rate of seven per cent, per annum. 
 
 On the 27th of May, 1800, the defendants by their Miuiiiging 
 Director, wrote to Robert McGeachie as follows : "We l)eg to 
 remind you that your note, amount $31.10, and interest, $1.10, 
 bocomes due here at the head office on the Tth day of .June, 1890. 
 Your prompt attention will oblige." 
 
 This note was not paid when due, and a new note was taken 
 for S:52.20 covering the amount of it and interest dated the Tth da}- 
 of .luiie, 1890, payable in thirty days witli interest at seven per 
 ecu iior iinnuni. A similar notiee to that given by the defend- 
 ants to Mi'Geachie on the 27th May, 1890, was given liy them to 
 him in respect of the last mentioned note. ()n .Inly 2nd, 1890, 
 MeGeachie wrote to the defendants as follows : " That note of 
 mine held by you l$;:}2.20 I am unable to pay. I am sorry that I 
 uii(\n"tool: it under my present cifeunistances. About a year ago 
 I h a to make an assignment and settled by giving notes and I 
 find it all I can do to get along — the note will be due on July lOtli, 
 that will be seven months' insurance, or supiK)se it was changed 
 from endowment to ordinary life without profits, how much would 
 it be for me to pay ? IMease answer soon and oblige." 
 
 On the 4th July, 1890, the defendants, by their Managing 
 Director, replied as follows : " re policy 7710 — We have yours of 
 the 2nd instant. Evidently you knew just as well when you 
 accepted the note whether you would be able to meet the same at 
 
 *;;;■ 
 
110 
 
 INSURANCE LAW OF CANADA. 
 
 maturity as you do now, and thereforo your request that wo cancel 
 the policy is unreasonable. Had you died during the curreney of 
 the note, your wife would certainly have expected this company to 
 pay the full amount of the policy and very properly so too. We 
 therefore shall expect you to pay your note. If you remit us one- 
 half the amount we shall have no objection to extend the time for 
 the balance for two months, and will send you a note for your 
 signature for the same. No change in the present policy could be 
 considered by our committee until the note lias been paid." 
 
 The secondly above mentioned note was paid when it fell due, 
 and a new note was taken, dated 10th July, 1890, at two months 
 for $22.40 with interest at the rate of seven per cent per annum, 
 McGeachie having paid $10 on account on each. A similar notice 
 to that given by the defendatits to McGeachie on the 27th May, 
 1800, was given by them to him on the 2nd September, 1890, in 
 respect of the last mentioned note. The last mentioned note was 
 not paid when it " '1 due, and the defendants took from McGeachie 
 a new note dated 18th September, 1890, at one month for $22.80. 
 On the 15th September, 1890, the defendants, by their Managing 
 Director, wrote to McGeachie as follows : "We have your favour 
 enclosing renewal note in place of that due on the 13th instant. 
 We now return to you herewith your old note duly cancelled, and 
 note that you will remit for the one which we received to-day 
 before its maturity." A similar notice to that given by the 
 ilefendants to McGeachie on the 27th Afay, 1890, was given by the 
 defendants to McGeachie on the 3rd October, 1890. The last 
 nientioned note was not paid when it fell due, and on the 5th day 
 of November, 1890, the defendants, by their Managing Director, 
 wrote to McGeachie as follows : " 7710 ; we fully expected to have 
 heard from you ere this with a remittance for your note which 
 nnitured on the Itlth ult. Kindly give the matter your immediate 
 attention." This letter was mailed at Toronto on the 5th 
 November, 1890, on the morning of which latter day McGeachie 
 died. The amount of the note and interest w.is tendered to the 
 defendants and they refused to accept it. Proofs of death were 
 duly given on the 30th J)ecember, 1890. 
 
 The learned judge Mr. Justice Street gave judgment as re- 
 ported aV)ove, in favor of the company. 
 
 On the 17th November, 1891, Aylesworth, Q.C, moved to set 
 aside the said judgment and to enter judgment for the plaintiff for 
 
 yg 
 
MAKINiJ 01' CONTRAfJT, ETC. 
 
 Ill 
 
 as re- 
 
 
 twC full amount elaimeil, witli interest and costs, or for a new trial 
 or for such other order as niiglit sooin meet, on the following 
 "•rounds : (1) That the said judgment was against the evidence and 
 the weight of evidence. (2) That the said judgment was had in 
 law. (3) That the learned ju<lge should have found that the said 
 company, hy accepting the premium note, and renewing the same 
 from time to time, were estopped from setting up the defence that 
 the said policy was avoided ]>y non-payment of the last renewal 
 note. (4) That the learned judge should have found that provision 
 G ot the said policy, which provided that a grace of one month 
 would be allowed on payment of premium, was applicable to the 
 note given for said premium and the renewals thereof, and that 
 the ami»unt of the last renewal note having been tendered to the 
 said company within thirty days from its due date, the said com- 
 pany had no right to cancel or avoid said i>olicy for non-payment 
 of said note, ami the plaiiititt was therefore entitled to recover 
 upon said policy. (5) That the learned judge, in any event, 
 should have fouml as a fact that the company, by rec^uesting pay- 
 ment of the last note, in their letter of the 5th November, con- 
 sented to waive any rights, if any they had, as to avoiduig and 
 cancelling the saitl policy for non-payment of said note. (6) That 
 the learned judge should have found upon the evidence that the 
 company were willing to accept the money in accordance with the 
 terms of the letter of the 5th November, aiul that if the same hail 
 been paid no cancellation or ii\'oidance of the policy would have 
 been claimed or urged by the defendants. (7) That the evidence 
 of the manager of the company showed that no steps were taken 
 by the saiil company to forfeit or cancel the policy. 
 
 Armour, C.J. — This case appears to me to be a very clear one, 
 and to depen<l entirely upon the question whether the policy was 
 in force at the time of the death of the insured, for if it was, no 
 subsequent action of the defendants could affect the plaintiff's 
 claim. 
 
 Olmstead r. The Farmers' Afutual, 50 Mich. 200. 
 
 Upon the giving of the note for the premium and the issuing 
 of the policy the risk attached subject to the avoidance of the 
 policy for the non-performance by the insured of the couditioii 
 subse«iuent — the payment of the note when it fell due. 
 
 The law applicable to the forfeiture of leases for non-per- 
 formance of condition is equally applicable to the forfeiture of a 
 
 4 
 
 m 
 
 w^ 
 
 i 
 
 ^ 
 
nr 
 
 r^ss^ 
 
 112 
 
 INSURANCE LAW OF CANADA. 
 
 policy, Buch as the one in qucKtioii, tor the non-porformaiice of 
 coiulition subsequent therein contained. 
 
 Tliis policy was voidable upon default bein^ made in the pay- 
 ment of tlie note taken for the premium, but only at the election 
 of the insurers; Wing v. Ilarvey 5 De G. M. & G. 265; Armstrong 
 V. rierspond 9 Ir C L. 325 ; Mackie v. European Co. 21 L. T. N. 
 S. 102. 
 
 Ui)on detiault being made in the payment of tlic note the 
 insurers might have elected to forfeit the policy or they might 
 have elected not to forfeit it but to continue, and upon the evidence 
 before us I think it clear tliat they eleeted not to f(jrfeit it, but to 
 continue it. 
 
 There is not from first to last in the correspondence or in the 
 conduct of the insurers any intimation or suggestion that they had 
 elected to forfeit the policy, but the contraiy ; nor is tliere therein 
 any intimation or suggestion that while electing to forfeit the 
 policy they were nevertheless insisting on (he payment of the 
 notes, but the contrary. 
 
 The correspondence and I'onduct of the insurers when default 
 was made in tiic payment of the fust note, shows clearly tiiat they 
 were not electing to tort'eit the policy, l»ut to continue it, and were 
 not while electing to forfeit the [lolicy nevertheless insisting upon 
 ]>aymcii( of the note, atid alfords evidence of a like election on 
 their part down to the (U'ath of the insured. 
 
 They took tor tiie amount of the first note and interest a new 
 note with interest at seven per cent per annum at thirty days, and 
 when during the currency of this note the insured wrote to them 
 asking ihem what they would let him out with by cancelling the 
 policy on .Fuly 10th, they answered him on July 4th that his 
 request, that they should cancel the ]iolic3% was unreasonable. 
 They were then, notwithstanding the default that had been nnide 
 in the payment of the first note, not only showing that they had 
 not elected to forfeit the policy and tluit they were not, while 
 electing to forfeit the policy, insisting on payment of the note, but 
 were also showing that they had elected to contiinie the policy 
 and were treating it as then subsisting. 
 
 There is nothing to show that their course of conduct in 
 respect of this policy as thus made manifest was in any way altered 
 up to the time of the death of tVie insured. 
 
 They took for tlie amount v)f the l^st mentioned note a cash 
 
MAKING OF rONTUACT, ETC. 
 
 113 
 
 the 
 
 on 
 
 new 
 
 iind 
 
 u'ni 
 
 tlio 
 
 liis 
 
 l.le. 
 
 nude 
 
 had 
 
 hile 
 
 Imt 
 
 ■olioy 
 
 •ash 
 
 puymont of $10 and a new noto for $22.40 witli intcrcBt at seven 
 per cent per annum at two montlis t'rom the 10th July, 1890, and 
 at its due date they took for the amount of it and interest a new 
 note for $22.80 at one month aiid atler detiuilt wan made in it« 
 • luent they wrote to tlie insured on the fiftli »hiy of N'ovemi)er, 
 J ; " 7710, We fully expected to have heard from you ere tluB 
 with a remittance fur your note whidi matured on the 16th ult. 
 Kindly give tlie matter your imme«liate attention "' and before thiri 
 letter reached the insureil on the following day the insured was 
 dead. Surely this letter must he taken in the light of the previous 
 correspondence and conduct of the insurers as treating the policy 
 as still subsisting ajid repelling the idea of any election to forfeit. 
 
 It was argued that because the insurers had the right while 
 electing to forfeit to nevertheless insist upon payment ot the note 
 referred to therein, the letter must be taken to mean tlmt they 
 were by it merely insisting on the payment of the note, liaving 
 exercised their election of forfeiting the policy ; but the refusal of 
 the insurers to receive the amount of the note and interest wiien 
 t "dercd shows clearly that no such meaning can be extracted 
 
 I the letter. The letter was written treating and intending to 
 
 . the policy as still subsisting and asking the kind and imme- 
 diate attention of the insured to the p.ayment of the note. 
 
 Supposing the insured had paid the note on the tUh ot 
 November, and had died on the 7th ot Xovember, would there be 
 any defence to this claim ? I think clearly not ; and neither in my 
 opinion is there any defence to it under the circumstances which 
 oc<Mirrt'd. 
 
 The i)laintitt' is in my opinion entitled to recover the sum in- 
 sured with interest trom the 1st January, 1801, less the amount of 
 the promissory note of the insured with interest thereon at the rate 
 of sevt'i. iier cent, per anntim, and her costs of suit. 
 
 The jiulgmcnt by the Court of Appeals reversing tins decision 
 was delivered on January 17tii, 1803, Ilagarty, C. J. O. : 
 
 I feel very great ditHculty in accepting the view of the Divis- 
 ioind Court tiiat when the life dn)pped there was an existing con- 
 tract of assurance with the defendant company. 
 
 Conceding for the argument that so long as they continued 
 accepting promissory notes instead of cash for jiremiums, and so 
 long as any one of such notes was current when the life dropped, 
 
 8 
 
 Llll 
 
 ir 
 
114 
 
 INSURANCE LAW OF CANADA. 
 
 the insurance was in force, I cannot see how this judgment can be 
 uphohl. 
 
 Down to the 16th of October, the time of the last renewal, we 
 may treat the contract as existing. The dishonor of that last note 
 loft nothing remaining. The company could at once have caii- 
 celiod the risk, leaving still a liability on the assured to pay the 
 notes on the terms ot the policy. 
 
 I do not think the company were bound expressly to notify 
 the assured that they elected to do this. It became incumbent on 
 the plaintift' to establish with reasona1)lo clearness some act of the 
 company to revive the lost liability. 
 
 The case then wholly depends on their action in writing the 
 letter of November 5. 
 
 " We fully expected to have heard from you ere this with a 
 remittance for your note, which matured on the 16th ult. Kindly 
 give the matter your immediate attention." 
 
 This letter never reaclu'd the hands of the person to whom it 
 was addressed, he having died on the morning after it was written. 
 
 Now, apart from the argument that the letter may hv read as 
 merely pressing for i>ayment of the note, even if the risk had been 
 cancelled, the difliculty remains that nothing whatever was done 
 uiion it. 
 
 If the assured had acted on and paid the note and the defend- 
 ants hatl accepted the payment, I do not doubt but that the jilain- 
 titt could recover on a linding that such payment was made and 
 accepted as completion of payment of the year's premium, and not 
 merely to pay the note on a cancelled risk. 
 
 Ihit nothing was done, the dro[>ping of the life was the only 
 answer. 
 
 I should be of the same opinion even if the letter had gone 
 nuicli further and had specially referred to the insurance and had 
 urged on McQeachie to pay up and thus save the insurance, the 
 saving I'ould only bo by paying up. 
 
 If the maiuiger had met him on the 5th of November and 
 asked him why he did not attend to the nuittor and pay up the 
 overdue note, and the other promised to do so next day, and died, 
 say from an accident two hours afterwards, what would he the 
 position? 
 
 If he [)aid he saved his insurance, if he did not, but died with- 
 out paying, I think, with submission, that the contract is ut an 
 
 i 
 
 ■m 
 
 i 
 
MAKING OF CONTRACT, ETC. 
 
 115 
 
 10 (> 
 
 nly 
 
 tor iiiiil 
 
 up tJ 
 
 10 
 
 (I witli- 
 is ut ait 
 
 er.d. Or if when this letter was written McGoachie was actually 
 <lt'a»l without the writer's knowledge, would it amount to the 
 creation of a new contract ? 
 
 The dishonor of a note given for the premium makes the 
 insurance null and void. 
 
 Of course the company may waive the forfeiture, and so long 
 as they oontinuo renewing or acoopting paper the contract may 
 continue. 
 
 But the utmost evidence of waiver here amounts at most, even 
 if the letter had reached \tf, address, to a suggestion to do some- 
 thing which might, if done, preserve the contract. 
 
 Nothing was done, and I cannot hclieve that the law we are 
 hound to administer can warrant a recovery. 
 
 I do not oonsider that the one month's grace allowed on jtay- 
 ment of [iromiums oan attect this (piestion. 
 
 The whole seems hasod on tlie neoessity of the first year's 
 payment in advance heing made to valiilato the policy. Tlie parties 
 agree to take paiu-r for this and to ronow such paper more than 
 oii'.'o. Tlio month's grace can hardly a|tply to each note so given. 
 
 I am aware of the great latitude allowed hy some of the Amer- 
 ican aiitliorities in the dealings hotweoii assurers and insured. 
 
 In a much contested case of Mofi'at v. Reliance Mutual 
 Assurance Hooiety, 45 U. C. R. 5G1, I had occasion to examine 
 tlieso authoritios, and then expressed an opinion that tlioy sei'mod 
 to me to go far heyoiul the limits of English law. I still retain 
 that opinion. 
 
 I think my learned l)rothor Street's Judgment sliould he 
 restored and the appeal iillowod. 
 lUiKTON, J. A. : 
 
 r tpiite agree with tiu' I'ourt holow that upon the giving ot 
 iIk' note and the issuing ot the policy the risk attached, and that 
 tlio jtolicy was voidahlo only at the election of tlu- company ; imt 
 1 am mialiK' to adopt the reasoning that under the facts of this 
 case there was any waiver of the forfeiture, or any act done hy the 
 company from wliich the assured had the right to infer tliat they 
 considered the policy still in force, unless wo come to the con- 
 elusion that sucli an agreement as that ndo[itod hy this company, 
 conferring the right to ontorco paynu'nt of the note notwithstand- 
 ing the lapse of the policy, is invalid. I do not think the 
 argument is advanced hy showing tiiat the company were demand- 
 
mm^fsmmmmmt 
 
 *^i. 
 
 116 
 
 INSURANCJ5 LAW OF CANADA. 
 
 ing payment of the note or even suing upon it. They might do 
 one or the other without any intention of reviving the policy 
 couHistently with the terms of such an agreement. I think it 
 very probable that if tlie demand had been responded to by 
 payment during the life of the assured, the company would have 
 waived the forfeiture, but they were under no legal or equitable 
 obligation to do so. 
 
 I am free to confess that such an agreement as that in question 
 to my mind seems somewhat inequitable, inasmuch as the company 
 might thereby be receiving a full year's premium, whilst the 
 asyured had only been covered for six months ; but people are at 
 liberty to make their own contracts, and it is no part of our duty 
 to make contracts for them, but merely to interpret those which 
 they have made. 
 
 The arrangement whereby the assured elects to pay the 
 annual premiums 'u semi-annual or quarterly instalments appears 
 to me to l)e much more ecjuitable. The policy is then liable to 
 forfeiture for non-payment on the day appointed for payment, but 
 the assured loses only the proportion of the premium during which 
 lie has been insured. 
 
 The case of Olmstead vs. Farmers' Mutual Fire Insurance 
 Co., 50 Mich 200, referred to in the judgment below, is, I think, 
 very distinguishable. In that case there was no provision that 
 tioii-ltiiyment should work a forfeiture, but that the secretary 
 might, in a certain event, suspend or cancel the policy subject to 
 ail aii|ieal. It was a tire policy, and so far from the policy having 
 been caiicelU'd up to the occurrence of the tire, the secretary bad 
 just previously notified the insured that his insurance was liable to 
 susiicnsion, iiiilrs.s i)r(niipt utioitiim tras (jifeii t<i the imticc. 
 
 No act was necessary in this case on the part of the company 
 to siiow that they had elected to avail themselves of the forfeiture 
 — tliiit was provided for in the conditions — and the letter relied on 
 is ill no way inconsistent with their having so elected. It would 
 liave been very diflerent had they advisi'd the assured that uidess 
 I he payimnt was at once made the policy would be avoided. 
 
 I am ot opinion, therefore, that the judgment of Mr. Justice 
 Stret't was correct and should be restoretl. 
 OsLKii, •!. A. ; 
 
 The jmlgnient of Street, J., dismissing the nctioii, ought, in 
 niy opinion, to be restored. I think the non-payment of the last 
 
 ^ 
 
MAKING Ol? CONTRACT, ETC. 
 
 117 
 
 lied oil 
 would 
 uiilosB 
 
 renewal note for the balance of the fir^t premium raised a clear 
 defence under the provision in the application and policy, that if 
 atiy premium note, cheque, or other obligation given on account of 
 a premium he not paid at maturity, the policy shall be void, and 
 all payments made upon it forfeited to the company. Conceding 
 that this means void at the option of the insurers, they were not 
 ol)liged to do anything showing an election to avoid it in the life 
 time of the insured. If the premium remained unpaid at the time 
 of his death, the jiolicy is void, if they set up the condition. The 
 jioiicj- has simply come to an end. Roohner v. Knickerbocker 
 Life Insurance Co., 63 N". Y., 100 ; Robert v. Now England Mutual 
 Life Insurance Co., 1 Disney (Ohio), ;}55 ; Lantz v, Vermont Life 
 Insurance Co., 189 I'li. St., 546 at p. 561. If before death they 
 had accepted payment of the premium the case might have been 
 within Wing v. Harvey, 5 D.M. & G.„ 265, and Armstrong v. 
 Tuninand, 1) Ir. C.L. 32 (1858), and the defendants might have 
 been held liable, or, at most, it would have been a question upon 
 the evidence whether they had accepted payment on the footing 
 of the policy being in force, or under the stipulation that the 
 premium note should be [layable at all events, and notwithstanding 
 its avoidance. Here there is nothing but the fact of default in 
 payment of the obligation given for the premium, ami a call tor 
 its payment, which never came to the knowledge of the insured. 
 His representatives could be in no better position than they would 
 have been in if it had come to his knowledge, and he had died 
 without complying with it, and I do not see how, consistently 
 with giving any force or effect whatever to the conditions of the 
 contract, the denuind can be regarded as more than an intimation 
 to the insured, or a declaration by the defendants that it the 
 premium was paid during bis lifetime (he defendants were willing 
 to treat the policy as being still on toot. No inference can Justly 
 l»e drawn from it that they were treating it as unaftected by the 
 • letiiult, and that the premium, i/iia premium, was paid by the 
 note, in otiier words, that they were electing to keep the policy on 
 toot, except on the terms of paynuMit being made in the lifetime 
 of the insured. In point of fact, however, the defeiulaiits' letter 
 of tile 5th November, 1890, never did come to the knowledge of 
 th(« insured, as he tlieil before it could be delivered, so that if there 
 was an intention on the (hd'enihtnts' part to elect not to avoid the 
 policy, that intention was not communicated to him; the election 
 
 l^m 
 
 !i 
 
 
 ffl'i 
 
118 
 
 INSURANCE LAW OF CANADA. 
 
 iKVor WHS comitletod, and tho case is simply one of tho insured 
 dying wliilo in dotiuilt, and thus comina; within tlie terms ot the 
 destructive condition. I refer to Neill v. Union Mutual Life- 
 Insurance Co., 45 U.C.R. 593, 7 A.R. 171 ; Doe Nash v. liirch, 1 
 M. & W. 402, at p. 408 ; Croft v. Lumley, H.L.C. 672, at p. 705. 
 
 1 do not wish to bo understood as saying that a demand, even 
 it actually communicated to the ineured, unless followed by actual 
 payment and acceptance of the iiremium in his lifetime, would be 
 evidence of a waiver of the forfeiture or sufficient to reinstate the 
 policy. 
 
 In Edge V. Duke, 18 L. J, Ch. 183, where the company had 
 not only demanded payment of the over-due premium, but had 
 sued for it, they were held entitled to insist ujxm the forfeiture 
 notwithstanding. 
 
 For these reasons I concur in allowing the appeal. 
 MacLennan, J. A. : 
 
 I also am of tlie opinion that the appeal should be allowed. 
 
 During tho argument I thought the circumstance that, when 
 the first note given for the })remium was renewed it was given up 
 to the maker, might make a difference. The tirst note was 
 undoubtedly "given on account of a premium " within the coti- 
 ditiiin endorsed upon the policy. l»ut beft)rc! it became due it was 
 given uji and anothe)- note was taken in lieu ol' it, and this process 
 of renewal was I'epeated once or twice. It cannot be said that tlie 
 original note under these circumstances was a note '"not paid 
 when due" within the meaning of the condition, and having bi'cii 
 given u|i, it' it was a pai<l note, it could never bei'onie anytliing 
 else, or be revived by tlie dishonour of the renewal. Then the 
 second and subsequent noti's wert.' not given on account (d a 
 premium, as the tirst was, but in pa^'nu'Ut of the antecedent oiics« 
 or at least in lieu of them. Upon reHection, however, 1 think it 
 would bo putting too mirrow a construction upon the langinigc of 
 the condition to hold that the subse((Uent notes were not also 
 given on account of a premium. We cainiot truthfully, making a 
 liiir and reasonalile use of language, say that thcv were not given 
 on account nf premium. It is evident that all the notes were 
 givt'ii for that and nothing else. 
 
 Then it was said that the provision in tbc^ policy allowing a 
 gra<'e of one month in payment of premiums a]i|ilie(l. It is notice- 
 able that tho grace is conlined to the payment ot' premiums. It is 
 
MAKIN(! OF CONTRACT, ETC. 
 
 119 
 
 m^ 
 
 not extondeil to notes or otlicM- obligations given therefor. I think 
 the month nnist be hold t<» run from the reguliir day on whicli the 
 premium was (hie, an<l it tlie company should take a. note I think 
 the proviso does not mean that the assured shall have a month's 
 grace in a<ldition to the time the note has to run. The rule of the 
 policy is that premiums arc due and payable in advance. Any 
 departure from that rule, whether by taking a note or otherwise, 
 is grace, and all the assured is entitled to by the terms of the 
 policy is a month. If he gets two or more months by a note it 
 must be taken to be in lieu of, or substitution for, the monrh 
 allowed by the policy, and not in addition to it. 
 
 I now come to the ground of waiver, on which the judgment 
 of the Divisional Court rests, and atter most anxious consideration 
 I am unable to agree with the judgment. T think with great 
 res{iect there was no waiver. 'I'he cases cited by the learned Chief 
 Justice of Wing v. Harvey, 5 D.M. & G., 26;'), and Armstrong v. 
 Tunpuind, 9 Ir. C.L. '^2, are, I think, distinguishable from the 
 j)resent. In those cases the companies had no right whatever to 
 receive. till' premiums which they received, unless ujion the theory 
 that they waived the forfeiture. In Wing v. TIarvey the (;ompany 
 received premiums tor years after they were aware of the I'ause of 
 forfeiture, and in Armstrong vs. Tunpuuid they received one 
 premium atter knowledge. The other case, Mackie v. Eiiroiiraii 
 Assurance Society, 21 L.T.X.S. 102, merely decides that tlu' com- 
 pany was liound by the acts of their agent. 
 
 1 assume, for the imrposu of this case that the compiuiy is 
 bourn! by all that tonk [ihice hetwi'en the assured and thi' a^-cut, 
 and, looking at the corres|iondenet', lam unaltU" to find tliat tlie 
 ijiicstioii of the forfeiture id' the [)olicy by reason of non-payment 
 was present to tlii' mind of the agent at any time. It is evident 
 that what lie was concenieil al)out and was endeavouring to obtain 
 was the payment of the note. lie was not considerinii' cuii-e- 
 (|Uences. 
 
 lie had a ligiit to say if he diose : •• ^'our policy is void, but, 
 I want payment of the note," Hut he Wiis not tddiged tn say 
 anything at all about the policy one way or another. Uy iIh> 
 terms (d' the contract he could demand payment ol the tiole 
 whether tiie policy was void or not. Ihit lor that, his <lemand of 
 payment would be an assertion that the policy was still in force, 
 and would be evidence of waiver; but, under the cirenmstanees, I 
 
 11 
 
If-^ 
 
 lilt 
 
 120 
 
 INSURANCE LAW OF CANADA. 
 
 
 am unable to sec how it can be so regarded. It was argued that 
 if the assured had paid the premium in answer to the demand it 
 could not be contended but that the policy was thereby set up 
 again. I think, howover, that is the same proposition, and that if 
 the money had boon paid, and it turned out that the assured was 
 Hufforing from dangerous or fatal illness, the company could not be 
 held to have waived the forfeiture. When a landlord, after a 
 forfeiture, receives rent which had become due before it occurred, 
 that is no evidence of waiver ; l>ut it ho receives rent which fell 
 duo afterwards it is otherwise. In the first case he has a right to 
 his rent whether he intends to insist on the forfeiture or not, but in 
 the other case there can be but one inference drawn, namely, that 
 ho has waived the forfoituro. So in this case the company had a 
 right to demand, and even to recover, payment of the note whether 
 they waived the forfoituro or not. And so no inference whatever 
 as bearing on their intention can l)e drawn from those acts. I'ut- 
 tiiig those acts aside, I think wo must find in the correspondence 
 a distinct intention in express or uno(p>ivocal language to waive a 
 forfeiture before we can decide that they have done so, and, with 
 great respect, I iim unable to see that any such intention is there 
 to be found. 
 
 I am, thoroforo, of opinion that the appeal should bo allowed. 
 
 The judges of the Supreme Court, in confirming this judg- 
 ment, expressed themselves as follows : 
 GwvNNE, .1. : 
 
 The first condition of the ]iolicy was (piite sufticient to entitle 
 the I'onipaiiy to claim that tlio policy was void for non-))aymi'nt of 
 the premium. It was paid by a promissory note wiiicb enabled 
 the policy to issue, but it was agreed that if the note was not paid 
 the [loliey was to be void, or, if not voi<l, voidable, and I do not 
 think it would ai<l the appellant to hold that it was only voidable. 
 1 agree with the judgment of the Chief Justice of the Court of 
 Appeal and would dismiss this a[>poal with costs. 
 KlN(i, J. : 
 
 The note was taken as conditional payment ol' the premium 
 aiul. until it matured the policy was valid, but when it matured 
 and was not i)aid it came within the first condition ami juade the 
 [lolicy void. I think the term void in that condition means void- 
 able. The stipulation was for the benefit of the company, who 
 had a right to elect whether it should be void or not. Then, was 
 
MAKING OF CONTRACT, ETC. 
 
 121 
 
 111 
 
 10 
 
 anything done to show an intention on the part ot the company 
 that the policy should continue notwithstanding the breach of the 
 condition ? I cannot see that what was done was equivalent to an 
 expression of any such intention. The insured had had eleven 
 months of protection under the policy and I cannot see that the 
 re(piest for payment of the note would operate as a waiver ot the 
 forfeiture. 
 
 I agree in the appeal being dismissed. 
 
 78. Life insurance - Premium note -Action on, after for- 
 feiture-Condition, month's g^race -Death within, and before 
 payment of premium. Another important and recent decision 
 also ujton an unpaid premium note is that of The Maniifacttirers 
 Life Insurance Co. v. Gordon. It may be summarized as follows : 
 Under a liie policy providing that "a grace of one month will be 
 allowed in payment of premiums, at the expiration of which time, 
 if said premium remain unpaid this policy shall thereupon bci-ome 
 void" and also that "if any note given on account of the premium 
 be not paid when due, this policy shall be void and all payments 
 inaile upon it shall be forfeited to the company," the insurance 
 conu's to an end upon default in payment of a premium note, 
 unless the insurers elect to keep it in force, and proceedings by the 
 insurer tt) collect a note given for a premium are not sufficient 
 evidence of such election. Nor are eijuivocal acts such as carrying 
 llic policy in the books of the insurers as an existing policy and 
 including the amount in their official returns of insurance in force 
 any evidence ot waiver of the forfeiture, tlu'se acts not being 
 known to the insured or intended to intiuence bis conduct. 
 
 "Month" in an insurance policy in the form here in (inestioii, 
 witli provisions for jiayment of semi-annual premiums cm named 
 days of spccitic calendar months means a calendar month. 
 
 Per Haggarty, C. J. C, and Osier, J. A. 8end>le. Payment 
 nnist be made during the life of the insured, and if the life dro[' 
 liefore the expiration of the time of grace ami l)etbrc jiaynient tlu> 
 I'isk comes to an end. 
 
 I'cr Jiurton and MacleiMum, .I.T. A. Payment nuiy be made 
 at any time liofore the exjiiration of the time of grace, whether 
 the life has dropped or not. 
 
 JudgnuMit of MacMahon, J., reversed.' 
 
 ' .Miuuifiiii\ii(>rs' Liff Iiisiiriiiu'i' v. (Junloii, :j() A. H. Il()!>; Mcl'dichlc v. Nortli 
 Anierlciiii Lilo AHsiiramf Co., 'JO A. H. is" hikI UJ .S, C. U. I ts applioil mid followod. 
 Sec sii/ira S 77. 
 
 11 
 
 ! n 
 
"%■ 
 
 122 
 
 INSURANCE LAW OF CANADA. 
 
 
 This ciiso is of so unu'h interest that it may be well to give here 
 the opinions of thi' judges in full. 
 
 The decision in the first court was as follows : 
 MacMahon, J. : 
 
 Action for the cancellation of a policy of insurance issued by 
 the plaintiff company on the life of Daniel John Baillie Gordon, 
 f«)r the sum of !*5,000 (the amount being made payable to his wife 
 Kate S. Gordon, the defendant), upon the ground that a note 
 given l)y the insured, the said D. J. B. Gordon, which matured on 
 the 8th October, 1891, for the half years premium falling due on 
 the 5th of July, 1891 (being within two years of the issuing of the 
 said policy), was not paid at maturity, and thereupon, as the plain- 
 tifts allege, the policy became null and void under the conditions 
 contained in the application and policy. The policy is dated the 
 *22nd of July, 1890, and by its terms the semi-annual premium of 
 $n.7b is to be paid in advance to the (tompany on the 5th days of 
 July and Jamiary in each year. By one of the provisions of the 
 policy — (II) — " a grace of one montli will be allowed in payment of 
 premiums, at the expiration of which time, if said premium remain 
 unpaid, tlie policy shall thereu[ton become void. But a reinstate- 
 ment will be permitted if application therefor be made in writing 
 to the company at its head othce witliin two months after the 
 expiration of the one month's grace, accom[)anied with a certifi- 
 cate of good health from a medical examiner of this company, sub- 
 ject to its approval, provided always that whenever advantage is 
 taken of this grace or of the privilege of reinstatement, interest 
 shall be paid to the company at the rate of six \)er cent per annum 
 fir the timedeferretl."' And on the back of the policy is endorsed : 
 " If withii\ two years t'rom the date named for the commencement 
 of this insurance * * * any note, cheque or other obligation 
 given on account of the first or second year's premium be not paid 
 when due * '^ # this policy shall be void and all payments 
 made upon it shall be forfeited to the company," etc. 
 
 At the foot of the medical examination, which was signed by 
 <iordon (ami which was referred to in the ajiplieation as forming 
 jiart of it), there is an agreement that if any note or other obliga- 
 tion given for the first or any subsetiuent premium be not paiil at 
 maturity the policy sliall tlu'reuiion become void, but the note, etc., 
 must nevertheless lu' paid. 
 
 This cannot be deemed a ondifion or stipulation in any wsiy 
 
 • 
 
'^ 
 
 MAKINCi OF CONTRACT, ETC, 
 
 125 
 
 l)\- 
 
 at 
 
 modifying tlu- cftei't of the policy, as undor soctioti 27 of R. 8. C, 
 cap. 124, all t'otiditions, stipulations and provisos to aftoct any 
 policy after the 1st of January, 1886, to be valid, must be sot out 
 on the face or back of the polic}-. The half year's premium due 
 <jn the 5th July, 1801, not beiui; paid when due, the aj;ent of the 
 company at Ottawa delivered the rccci[»t for the premium to 
 Gordon and accepted his (Gordon's) note dated 5th August, pay- 
 able in sixty days, for the amount, §77.75, which was not paid at 
 maturity. The company's agent at Ottawa on the 9th of Novem- 
 ber notified Gordon that if the note were not paid b\^ the Kith it 
 would ])e put in suit for collection. 
 
 The note was put in suit on the 3rd of December, and judg- 
 ment was entered on the ;50tli of Dccend)er, 1891, for the amount 
 of the note, with interest and costs, (^n this execution was issued, 
 which was returned mdht hoiui on the 7th of February, 1802. The 
 Division Court bailiff said he had advertised Gordon's goods for 
 sale, and that they were under seizure until (ioi'don's death, which 
 occurred on the 4th of February. He said he might have realized 
 titty or sixty dollars from a sale of the goods, and the reason lie 
 did not sell was because there was a settlement with the company's 
 solicitors, who agreed to aciept ten doUars per month on the exe- 
 cution. A letter from the plaintiff's solicitors, dated 18th of 
 .lamuiry, 1S02, was juit in, in which they state the company is 
 willing to accept payment of the claim in instalments of ten dollars 
 per month ; the tirst payment to be made immediately, ami the 
 bailiff's fees to be paid by Gordon. 
 
 The offer was not acted upon, as no instalment was paid in 
 accordanci' witii its terms. In fact, when the letti'r reached Gordon 
 he was suffering from the illness from which he afterwards died. 
 
 On the 2l8t January ^[r. T. C. Bate saw tlu' company's agent. 
 A. E. Bradbury, to whom be said be had callcil to pay the judg- 
 ment and the next lu-eminm. when Bradbury said be would ascer- 
 tain the amount of the Division (\)urt costs, and would let him 
 (Bate) know the whole amount. On this occasion, which was the 
 first Bradbury said he heard of (Jordon's illness, Jiradbury gave 
 Bate a "lu'alth certificate," which he desired should be signed liy 
 Gordon. Bate said that Gordon did sign tlu' certificate in i>lank, 
 but it was never filled up, and was not returned to ;Bradl)ui'y. On 
 the following day (22nd .lanuary), Bradbury went to Bate's otlice 
 and said he had given liim the wrong certificate, ami then -ave 
 
f 
 
 124 
 
 INSURANCE LAW OF CANADA. 
 
 liini a sliort form medical examiner's certificate to be filled up after 
 a re-examiiiatioii ot Gordon by the company's medical examiner. 
 This the company's agent considered necessary, because, as he 
 stated, thirty days had elapsed since the premium was overdue — 
 he referred to the premium represented by the promissory note, 
 which nad been overdue since the 8th of October previous. On the 
 22nd of .January, 1892, the solicitor of the company informed \tr. 
 Bradbury that their expenses (1 suppose costs) in connection with 
 the judirnient in Manufacturers Life v'. Gordon, amounted to .?8.8U, 
 which included the solicitors fees payable by the company. On 
 the 5th of February, Mr. Christie, the solicitor for Mrs. Gordon, 
 tendered the solicitors of the company ^82 in payment of the 
 judgnu-nt, and on the same day Mr. Bate ten<lered to the agent of 
 the company S78 for the half-year's premium, which fell due on 
 the oth .January, 18!t2, which was refused. 
 
 On the 8tli of February, 1892, the managing director wrote 
 the company's agent at Ottawa a letter in which he was askeil, 
 " Did he (Gordon) know from you that the policy had lapsed ?"' 
 The general manager then states : " I cannot approve of your haste 
 in putting this matter in the hands of a solicitor for collection. It 
 matured last October, and it would have been far better to have 
 waited a few months before suing. Had you let the matter stand 
 as overdue until after the r)th of February, they could not possibly 
 have made any claim with any ghost of a show ; as it is now they 
 are going to make use ot the judgment as a strong point in the 
 contention that we considered the policy in force." On the 10th 
 of Febnuiry the agent answered the managing director's letter, and 
 in reply to the (juery as to notifying Gorilon, he said : " As to 
 whetiier \ notified Gordon that his insurance had lapsed, I do not 
 reincin1)er. I)ut Gordon knew such was the case, for he met me on 
 the street and told me the company was suing him for his n )te. I 
 remarked, ' Well, you can't blame me.' lie said, ' I supjiose my 
 insurance is gone now anyway.' I then said to him, ' Pay the 
 note and we will get you reinstated.' " These letters were put in 
 l)v tiic defendant's counsel. The receipt sriven to Gordon when 
 the company acceitted his note is as follows: "Received from the 
 owner of policy Xo. G;544, the semi-annual i)remium due .luly 5th, 
 1891, 877.75. .lohn F. Kills, managing director." The note was 
 accepted in payment of the premium, but by the condition endorsed 
 on the policy, upon the non-payment of the note the policy became 
 
MAKING OF CONTRACT, ETC. 
 
 125 
 
 11(1 
 
 to 
 
 l)t 
 
 on 
 I 
 
 my 
 le 
 111 
 
 IL'U 
 
 forfeiteil, unless tliere was a waiver by the company of its right to 
 enforce the forfeiture. The right of forteiture is for the benefit ot 
 the insurers, and they may chose not to enforce it. And when the 
 insurers had, as in this case, the promissory note of the insured, 
 the company may intend to still carry the risk and enforce i)ay- 
 nient of the premium. The payment ot the annual premium upon 
 a policy of life insurance is a condition subsequent, the pertorm- 
 ance of which may or may not, according to circumstances, work a 
 forfeiture of the policy. Thompson v. Insurance Co., 104 U. S. 
 252. The company by demanding iiaynient ot the note ; by suing 
 for the amount of the note and the accrued interest thereon ; by 
 obtaining judgment and issuing execution thereon : making a 
 seizure thereunder, and claiming to recover the amount of such 
 judgment down to the day of the death of the insured, arc, it is 
 urged, estopped from setting up that the policy was forfeited Ity 
 non-payment of the note at its maturity. Mr. McCarthy urged, 
 on the authority of Knickerbocker Life Insurance Co. v. Peiidle- 
 toii, 112 U. S. 61*0, that there was an absolute forfeiture ot" the 
 policy by non-jiaynicnt of the note, and that the company was 
 entitled to sue and recover the amount of the note (the insured 
 having bad the benefit of the insuriince during the interval) with- 
 out waiving the forfeiture. In that case there was nothing done 
 by the company evidencing a waiver of the forfeiture after the 
 maturity of the bill wliieli had been accepted in payment of the 
 premium. 
 
 To the same ettect is Thomiison vs. Knickerbocker Life Insur- 
 ance Co., 5 Bigelow Life Ins. Cas. 8. Had the conii»any in tliis 
 c.'ise been paid the amount of the overdue note and interest when 
 the notification was sent bv the comiianv's au-ent to (lonloii on the 
 9tb of Xovember, or liatl the judgment been {laid by Mr. IJate on 
 the 21st of January, 1802, there can hardly be a (luestion that the 
 then receipt of the premium would have been a waiver of any t()r- 
 feiture. Even in the case where money is i»aid and received as 
 rent under a lease, a mere protest that it is accepted conditiomdiy 
 and without prejudice to the right to insist upon a prior forfeiture 
 cannot countervail the fact of such receipt : Davenport v. The 
 Queen, :} App. Cas. 115. The coiui»any did not deal with the 
 policy as having been forfeited. It was carried in the company's 
 books as an existing risk ; and in the statutory return made to tlie 
 Government, sworn to by the president and managing director, on 
 
 m 
 
 illl 
 
!-r 
 
 126 
 
 INSURANCE LAW OF CANADA. 
 
 the 24111 of Fel)ruary, 1892, the policy issued to Gordon is ineludod 
 iis being amongst those in force on the 31st December, 1891. The 
 contract being unilateral, it is only by receiving and accepting 
 Gordon's note that the company was in a position to sue for the 
 purpose of enforcing i)aynu'nt of the premium. Had Gordon's 
 goo<ls, which were advertised for sale on the 16th of January, been 
 sold under the execution, it is possible they might liave realized 
 sufficient to meet the Judgment, in which case the premium would 
 have l)ecn paid for the half year ending the 5th of January, and 
 the month's grace for payment of the succeeding half year's pre- 
 mium would not have expired until the 5th of February, 1892. 
 However, within the month's grace the amount of the judgment 
 <lcbt and costs was tendered to the company's solicitor, and within 
 such month's grace the premium for the suceccding half year was 
 also tendered to the company's agent and refused. A ([uestion 
 arose as to whether under the policy the month's grace should be 
 considered a lunar or a calendar month. In Simpson v. Margitson, 
 11 Q. B. 23, where the words in a written contract were, " if the 
 estate were not sold within two months,'" it was held that this by 
 itself meant "two lunar months," unless there were admissible 
 evidence that the parties meant " calendar months." So in Nudell 
 V. Williams, 15 C. P. 348, where in a lease the plaintiffs were 
 entitled to " the month " next after the expiry of the old lease 
 within whieh to pay for improvements, it was held that the naked 
 expression "month" meant a lunar month. In Hart v. Mi<ldlc- 
 ton, 2 C. & K. 9, Pollock, C. B., said : " In legal matters ' a month ' 
 means a lunar month, but in commercial matters ' a month' always 
 means a calendar month. In bills of exchange, promissory notes, 
 invoices, times of credit, and everything else relating to commereial 
 matters it is so ; and I know of no instance to the contrary." The 
 issuing of a policy of insurance can hardly be regarded as a com- 
 mercial matter, so that authority does not help. In Simpson v. 
 Margitson, 11 il. H. 23, Lord Denman, C. J., at p. 32, said : " Nor 
 can we find any authority for saying that the conduct of the parties 
 to a written contract is alone admissible evidence to vary the mean- 
 ing of the word ' month.' " However, in the present case the com- 
 pany in accepting the note of the 5th of August treated month as 
 a calendar month in the business of life insurance. The letter from 
 the agent at Ottawa of the 5th of February to the managing direc- 
 tor of the company, in which ho says, " The days of grace of the 
 
MAKING OF CONTRACT, ETC. 
 
 127 
 
 set'Oiid half year cxiiiro to-day," and tlio letter of the inaiiagiiii,^ 
 director to the agiiit of Feltruary 8th, in which he states, " Had 
 you let the matter stand as overdue until after the 5th of Fehruary, 
 they could not possibly have made any claim with any ghost of a 
 show," is evidence of what the meaning of "month" is in the 
 liurticular business of life insurance. See Simpson v. Margitson, 
 11 (2. B. 23, at p. 8:2. If there is any question as to this the 
 <lefendant should be allowed to give further evidence on the point 
 as to the sense in which the word is used in the particular business 
 of insurance. The caric of Simpson v. Accidental Death Insuraiuo 
 Co., 2 C. B. N. S. 257, to which counsel for the plaintiffs referreil, 
 turned upon a condition in the policy permitting the directors, 
 when a new premium should become payable, to terminate the risk 
 l)y refusing to acceiit such premium. In "Want v. Blunt, 12 East 
 183, also cited, where a tender ol' the premium by the member's 
 executors within fifteen days' grace allowed by the policy ot the 
 society was held too late, tlie judgment turned on the rules of the 
 society which required the [layment, when made during the days 
 of grace, to be ma<le by the member in his lifetime in as good 
 hcaltli as when the policy expired. And in Lantz v. Vermont Life 
 Insurance Co., 139 Pa. St. 540, where the authorities are reviewed, 
 the policy stipulated for the payment of quarterly premiums by 
 the assured, provided tluit should they not be paid at the dates 
 named in the lifetime of the assured the policy should cease and 
 determine. Under the term in the policy giving a month's <>'rai'e 
 within which to pay theprenuum, the tender on the 5th of February 
 was a good tender. The plaintiff's claim must be dismissed with 
 costs, and the defendant's counter-claim must be allowed, and jud'4'- 
 nient entered for the defendant for the sum of .^5,000, less $77.75, 
 with interest from the 5th r'/ February, 1802, and full costs of suit. 
 
 The plaintiffs appealed and the appeal was argued before 
 I1.,|j!)u>ty, C. J. O., Burton, Osier, and Maclennan, J. ,1. A., on the 
 2nd and 3rd of February, 1893. 
 
 li appeal. 
 
 HAQAhiV, (1 J. O. 
 
 A semi-annual premium was payable on the 5th January; it 
 was not paid. The insured died on the 4th of February, the 
 premium still uni.aid, but within the month, and on the 5th 
 February, also wiiuiii the month (if tlie month be calendar) the 
 amount was tendered and refused. 
 
 uS' 
 
 M" 
 
 
^'i 
 
 128 
 
 INSURANCE LAW OF CANADA. 
 
 The life, the subject matter of the insurance contract liad 
 dropped, a premium being in default. The beneficiary under the 
 policy (the defendant) insists that a payment was tendered within 
 the month, that there was in fact no default but an absolute con- 
 tinuance of the risk until the end of the month. 
 
 1 feel great difficulty in accepting this view. 
 
 The whole scheme of insurance seems based upon the payment 
 in advance at the commencement, or, as it were, to start the 
 running or inception of the risk. When default was made by non- 
 payment on the 6th of January, the risk was at an end or had 
 ceased to continue, subject to a provision in the way of a grace or 
 indulgence to the assured by payment within a month ; but under 
 :\iiother provision, with interest from the time of actual default. 
 Hut it the assured die on the 2nd day of the month without pay- 
 ment, are his representatives entitled to ofter payment twenty-nine 
 days after the life had dropped ? That is the proposition the 
 defendant has to assert. 
 
 I do not profess to know anything as to the usage or custom 
 of Life Assurance Companies or how they are pleased to under- 
 stand such provisions. I have nothing to guide me on this question 
 of construction beyond what the Appeal Book presents, and the 
 urgunu'uts of counsel thereon, and the exterinil evidence. 
 
 On the very fullest consideration which I eun bestow on the 
 rase, it appears to nie that alter the lite has dropped, no tender or 
 offer to pay can avail. 
 
 The whole subjei-t nuitter of the insurance was gone and the 
 risk hail terminated, [f not, then in the case just suggested, tlu' 
 i'isi< continued tor say 28 days until the month was nearly U[) ; 
 although the company had no existing jiremiums to support the 
 I'isk. and never niiti:ht have anv, nor could thev enforce aiiv. The 
 representatives might tender or not as they pleased. 
 
 I think we must t'onstrue the policy as only granting this 
 graot' so long as the lite was in lu'ing, so long as there was a life 
 which the risk covered or to whicli it ap[ilied. A halt 3'early or 
 yearly premium, [laid in advance, is an uninistakeable right to 
 insurance for that period, absolute as a matter of contract. For an 
 cxtia month payment will re-establish the contract; but tliere 
 must be the existence of the life on whii-h the risk is to continue 
 or to attach. Reading this provision " II " as offering two exten- 
 sions of time we have first the option or privilege of paying within 
 
MAKING OF CONTRACT, ETC. 
 
 129 
 
 d tliL' 
 tlu' 
 
 Tl)(> 
 
 this 
 I litV> 
 fly 11 r 
 Cht to 
 'or ;ui 
 tlioro 
 it'muo 
 
 'XtOll- 
 
 'ithiii 
 
 a moiitli : Kieooudly, an agreemont to reinstate the assured for a 
 period of two months after end of the month on eonditioii of hi» 
 being in good health, etc., and then if advantage be taken " of this 
 grace or of the privilege of reinstatement " interest at 6 per cent 
 sliall be njiid for the time deterred. I think tlie whole of this^ 
 provision poiiiio irresistibly to the assumed exiHtence of the life 
 when either the grace of one month or of the extra two mtmths, 
 i- sought to be availed of. 
 
 There is a whole month given within which the risk on the 
 life may be kept alive. 
 
 The words " at the expiration of whieh time, if said premium 
 remain unpaid, the policy shall thereupon become void,"' must 
 mean as addressed to a living man : "if you let this month pass 
 without paying up, your policy is void." 
 
 Here the life dropped with a premium in advanee unpaid. 
 The tender after death oould not, in my judgment, avail. 
 
 The whole subject matter of insurance was gone, and the risk 
 • eased. Death before payment within the month closed all as it 
 >^eems to me. Payment within it started the risk again, it' the 
 Niibjeet to which the risk attached still existed. 
 
 We have not been ri'terri'd to any direct autiiority cii tiiis 
 point.' 
 
 Byles, J., says in the much quoted ease, Prllchardw Mdchmiis 
 L[U .Usiiruiin'. ( .-., ;; 0. B. X. S. at p. (i44, •' As to the ctlccl of a 
 payment of the premium on a lift? policy alVcr the exiiiratimi of 
 tlic pt'i'ioil ciivfrcd iiy the [mjicy, iind witliin the numi)er of days 
 Usually allowed iiy the conditions t'oi' making tlic payment, or as 
 they have sometimes i)een called the days of grjiee, 1 am not awart? 
 ■;)t'any authority on the subjt'ct, exce[tt what fell ti'om this court in 
 the icceiit case of Siiniisim v. ArrhleiiUil JJrulli ftisuniitn' ('n,, -J, 
 ('.15. X.S. '2~u." 
 
 The I'acts in Pritchard's case were loo unlike I he present to 
 he a guide. But the remarks ot the judges throughout the case 
 incline my mind to the l)elief that payment within tiii' mimed time 
 ol' liTace must be while the lile (tlu' subject nuitter) is in existence. 
 
 Un the oiher branch of the ease as to the previous hall venr's 
 jireminm and the aliegi'd waiver by the company, t»r tlie eHeel of 
 their action on the m)te and other [iroeecdings, T h',\\v hiid the 
 
 ' For tlio gui'lifi- law sci' ('. ('. 1„ ('., 2't^t, iV%"i, »ii/,ni i 7;i. 
 
 SI 
 
 III 
 
 I '.I 
 
 4 
 

 130 
 
 INSURANCE LAW OP CANADA. 
 
 advantage of reading the judgment of my brother Osier, and I 
 adopt his reasonhig and oonohisions. 
 
 I think the appeal must be allowed. 
 Burton, J. A. : 
 
 There are two (piestions involved in this appeal. First, 
 whether the policy was avoided on the non-payment of the note, 
 and second, if not so avoided, whether the tender of the premium 
 on the 5th February, after the death of the assured, was sufHcient. 
 
 I deal with the last (piestion first. 
 
 I am, [ confess, a little surprised at any question arising at the 
 present day as to the liability of a life assurance company, where 
 the assured dies within the days of grace but before the payment 
 of the premium, provided that it is paid within the extended 
 period. In pviictice no company disputes such liability, aiul in 
 most cases they have remodelled their contracts so as to place the 
 matter beyond (piostion. 
 
 This was done in conse(pU'nce of the dicta which fell from 
 some of the judges during the argument in L'ritchard v. The 
 Mcivhants, etc. Life Assurance Society and Simpson v. Accidental 
 Death Ins. Co. in 1854, which led to an almost universal change in 
 the form of life assurance policies, so as to remove all ambiguity or 
 di)ul)t u^ion the subjet't, and no one doubts that a policy of assu- 
 riince, like all other written contracts, must be construed according 
 to the meaning of the parties expressed in it. 
 
 As the point was strenuously urged in the [iresent case and in 
 another recently before us, I shall discuss it more fully than I 
 should otherwise have done, us I considered it as perfectly well 
 established that sim.'e that change the liability was uni|Ui'stioned. 
 
 A good deal of confusion has arisen from treating a contract 
 of life assurance as a contract of indemnity, wliereas it is n mere 
 I'ontract to pay a c(!rtaiii sum of money at a certain time in con- 
 sideration of certain stipulated payments. 
 
 The contract is not like a tire or nuirine assurance policy for a 
 single year or a single voyage with a privilege of renewal from 
 year t.) year l>y paying the annual premium, but is an entire con- 
 tract for asrtiiraiH-e for life subject to discontinuance and forleiture 
 for Mon-payment of any of tlie stii)ulated premiums. Sucli is the 
 form of I be ('(Mitract and sui'h is its character. 
 
 Tlit^ (lueslion first arose in a tire insurance case — Tarleton v. 
 Staniforth 5 T it. t)lt5. The insurance was from half vt'ar to half 
 
MAKINO DF CONTRACT, ETC. 
 
 1:31 
 
 aiid ill 
 
 lan I 
 
 woll 
 
 wmumI, 
 
 >iitnn.'t 
 Hit' re 
 
 n con- 
 to r a 
 from 
 
 I'l' I'Oll- 
 
 citnro 
 is thti 
 
 't(»U V. 
 
 to hull" 
 
 your as loiii;; as the iiirtiirerd should agree to aei-ept the same, with 
 15 (hiys grace, Imt there was to he no insurance until the premium 
 was actually paid. 
 
 The loss occurred within the 15 days hut before tlie payment 
 
 of the i»remium. 
 
 The previous half year's contract was at an end ; two things 
 had to concur Itefore any new contract of insurance was eflccted, 
 that the insured should pay the premium and that the insurers 
 should agree to accept it. 
 
 There was in fact no contract then in existence, and if the 
 premium had hcen temlered hefore the tire the comitany was not 
 hound to accept it. 
 
 The fpiestion in all these cases is whether upon the true con- 
 struction of the whole instrument the loss occurred whilst the 
 pdlicy wa^ still in force, and although it is (piite clear that Tarletou 
 V. Staniforth was, under the facts in that case, rightly decided it 
 eflected a revolution in that kind of husiness. The 3un Fire OfHce 
 issued an advertisement stating that all persons insured in their 
 ottice hy [tolicies for one year or any longer term were and always 
 had hcen considered hy the managers as insured for 15 days 
 beyond the time of the expiration of their policies. 
 
 In an action brought some time suhsetpiently against the same 
 office, Salvin v, .lames, ti Kast 571, it was held, this did not stop 
 them beh)re the ex[iiration of the insurance from declaring that 
 they would not renew the insurance exct'pt at an increased pre- 
 mium, and that they had still the right therefore to decline to 
 renew the insurance, but the court there held, that in default ot 
 reasonable notice, hefore the expiration of the contrai't to that 
 ettect, the policy would have remained in force for the 15 <lays, 
 anil the company would have lu'cn liable notwithstanding that the 
 premium had not Iteen paid before the loss. 
 
 To the same etVect is A[cI)onald v. Carr, ifaye,-. ami doniN, 
 i25ti, whereon the true construction of the policy, it was held tn 
 be in torce for one year and fifteen days. 
 
 These are all ilitlercnt from the case wt- are considering, which 
 is ont^ of a contract for life, not determinable at the will of the 
 assurer. 
 
 The case (»f Want v. Ulnnt. 12 East 18:5, has no application. 
 That was a case of a member of a society etK'cting a policy of 
 assurance in consideration of a payment by him during his life, ami 
 
132 
 
 INSURANCE LAW OF CANADA. 
 
 tho payment of liis proportion of the contributions wyiicli the 
 members of the society should during his life be called on to make. 
 
 The court held that no person could be assured unless he was 
 a member; that the members were insuring each other, and tliat 
 the jiayiiig a premium for another fpuirter was making a new 
 assurance, and that the wdiole frsime of the policy showed thiit 
 every premium must lie [>aid during tlie life of the assured. 
 
 If that was the true construction ot the policy it warraiited 
 the coDi'lusion arrived at. 
 
 I come now to the two cases the dicta in which led tit the 
 'hange in the frame of the policies now generalh' in use. 
 
 The first of these, Simitson v. The Accidental Death Insurance 
 Company, was not a case of life assurance in the ordinary sense of 
 the term Init was an insurance against accident. 
 
 Tlicre, as in Tarleton v. Stanitbrtli, the comjiany were not 
 Wound to accept the premium it tendered, and it was in effect a 
 ^rant of so nniny days during which the assured might effect a 
 louewal if the company chose to renew, hut not otherwise. 
 
 Tlu' case of I'ritchard v. Merchants, etc.. Life Assurance Society 
 iias little bearing on this case, except for some of the <licta which 
 |(!1 tVoMi soiiu' of the judges during th(> iirgunicnt ; the payment 
 tlierc Wiis nor made until after the death and nflrr tin: e.rpiri/ i>/ Ihc 
 il'ii/s I'j i/rn'-i'. The [lolicy, as in the other caf=e> <|Uoted, [irovidcd 
 for the ijiun'terly payments ilKr'niij t/ir iKilnnil Jif, ni Ihr. ussnrcil, ami 
 the iioliry had ci^ased to liave Jiny force, and could only have been 
 renewed if the assured had l)ccn living on eomiilyiiig with certain 
 tormalitics and conditions. 
 
 Xow, a; r have remarked. iiiconse(picnce oftlu' doubts created 
 'iv till' dicta in these <'ascs the assurance companies decided to ahci' 
 •he forni> of tlieir [lolicics so as to remove all doubts and prevent 
 [•ai'ties being euti'a|ipeil into licjii'vinu' tiuMiisclvo covered by 
 insurance uhcu they were not so covered, and no one douiits that 
 thi'V can l»y express sti[iidation extend the |Mdicv in that way. 
 
 Have they doni- so in this <'ase ? The policy does not in 
 ♦ ci'ius provide that the premiums are to in' paid by tlie insured or 
 during his lifetime. On the contrary, the contract is with the wife, 
 and is to pay her the sum assured upon [n'oof ol' the ih'ath of the 
 assured ilKriixj l/ic. fniiiiiiiiiDn'e of Ihis jmlii't/. and thi'U wi' iind a 
 clause that a graec of one month will lie allowed in payment of 
 [iremiuins, at the exiiiration of which time if the said premiums 
 
MAKING OF CONTRACT, BTC. 
 
 133 
 
 alter 
 
 'Veill 
 
 l.y 
 liat 
 
 ill 
 ■(I or 
 
 will', 
 
 tiic 
 mil a 
 lit of 
 iiiniK 
 
 remain unpaid, the policy shall thereupon heeome void. If there- 
 fore, this payment was made within the month, can it be said it 
 was not in tail force, notwithstanding the risk hud become a 
 claim ? Readinu; the whole contract together, and the interpre- 
 tatio'. placed upon if by the company, I think we are bound to 
 hold that the nmnfirs grace was a calendar month and that at the 
 time of the fender the contract was a continuing contract and in 
 full force, unless avoided by the default in non-payment of the 
 note. 
 
 In the view I take of the other point, it was not strictly 
 TU'ccssarv that I should express any opinion on tliis one, but if 
 there is any doubt upon the question the matter is of too great and 
 too general importance to justify any judge ot an Appellate Court 
 [lassin;; it over in silence. Then' are no doubt thousands ot 
 persons insured under policies covering several millions of money, 
 who are in the constant ju-actice of deferring the payment of the 
 premiums until shortly before the ex[iiry of the da\'3 of grace, 
 without feeling the slightest doubt of their perfect safety in so 
 doing, and the fact that the persons who have made a special study 
 of this particulai- laisiness have by almost a universal coiu-ensus of 
 oiiinion for many years [daced the eonstructi(Ui tliat has been 
 placed by them on the meaning ot the extension of the days of 
 grace is entitled in my opinion to very great weight 
 
 T forget whether it was Lord Blacklutrn or Lord l>rajiiWoll 
 who once said ; "Show this ccuitract to the first hundred business 
 men you nu-et with on the street, and I do not doubt but tluit each 
 of them will place the same construction upon if," adding that he 
 was tree to atlmif that that construction was much more likely to 
 be correct than that td' himself, who knew nothing of the business, 
 or that of a whole bench (d" judges. J (piote from memory fiie 
 substan(;e of what was said, but Lord Westbury in the case of 
 Thompson vs. Hudson, L. 11. 4, II. L. I., used language almost as 
 treasonable ; and Lord {{ramwell comments in a similar way upon 
 the incongruity of referring to him who was neither a lishmonger 
 nor a carrier, nor with any knowledge td their business, to say 
 whether a cojifract nunle l»y a fishmonger and a carrier of fish, 
 who knew their i)usiness, was just and reasomible. 
 
 If is well, however, to point out that one occasiiuuilly finds 
 p(dicies which artMipen to the objections suggested by the judges 
 in the course of file argument in Pritehard's case, and that partio>i 
 
 m 
 
 IJ 
 
 i 
 
m'-i^-i: 
 
 ir.4 
 
 INSURANCE LAW OF CANADA. 
 
 may ii08siV)ly, in such oases, \>o left to the nicroy or the sense of 
 justice of the assurance company. 
 
 In the present case there is not, in my ojiinion, any room for 
 any possihle (htubt. The company agrees to pay if the (U^ath 
 occurs (hirinu; tlie continuance of the contract. That contract did 
 continue in full force and validity until the expiry of the days of 
 grace. After that time, if the payment had not been made or 
 tendered, the contract was at an end, ])>it not till then ; and if the 
 assured had hecn living, could only have been revived after that 
 time on the terms mentioned in the condition. One is an al)sohite 
 right extending the contract ; the other is purely discretionary 
 witli tlie company on certain facts being established to their satis- 
 faction. 
 
 The death of the assured did not terminate the contract any 
 more tlian the loss of the building in the Salvin v. James, and in 
 Macdonald vs. Carr terminated the contract. The fact that the 
 suhjoct matter no longer exists has nothing whatever to do with 
 the continuance of the contract. 
 
 -Ihit upon the other point the policy was avoided on non- 
 payment of the note, unless the suing upon it can be treated as a 
 waiver. I do not see how we can, consistently witli our decision in 
 McGeachie vs. The North American, liold this to amount to a 
 waiver uides;-; we are to hold that the provision contained in the 
 application in these words: — 
 
 "If a note, checpie, draft or other obligation be given for the 
 tirst or a subse(iuent premium or any part thereof, and if the same 
 lie not paid at nniturity, it is agreed that any insurance or policy 
 made on this application shall thereupon become null and void, but 
 the note, cheque, draft or other obligation must nevertheless be 
 paid," comes within section 4 of the Ontario Insurance Act 52 
 Vic. cajt. ;]2, as a term, conditii)!!, stipulation, warranty or proviso, 
 modifying or impairing the eftect of any contract of life insurance, 
 in which case it would re(piire to Ite set out in full on the face or 
 back of the instrument fornaing or evidencing the contract. 
 
 I do not see how this can l)eregardeil as in any way modifying 
 or impairing the ettect of tlie contract. It is an agreement in no 
 way attccting the contract, l)Ut deiining wliat the riglits of tlie 
 parties shall be in rcsi>ect of the note so given for the premium. 
 The ellect of tlic non-pijymcnt at nuitnrity is disclosi'd in a con- 
 dition wliich is set out in full upon the back of the iM)li<'y, and the 
 
MAKING OF CONTRACT, ETC. 
 
 135 
 
 lit'ying 
 ill no 
 of the 
 'miurn. 
 it con- 
 mi il the 
 
 '■■«' 
 
 only object oftliis collateral agreement is to avoid all d.jubt alumt 
 the suing on the note being considered a waiver ot the previous 
 
 t'ort'eiture. 
 
 1 regret, therelore, that I am unable to iind anything which 
 operatedas a waivi'r ot the forfeiture, and I think the appeal must 
 lie allowed. 
 Osi.EU, J. A. 
 
 I am ot opinion, with all respect for the learned trial judge, 
 that no waiver or ostoi)pel arises out of these prececdings. The 
 ettect of the note was to continue tlie pidicy in force for two months 
 beyond the month's grace so that the deceased was insured for 
 three months out of the half year for winch the premium was 
 payable and had death occurred during that time the policy would 
 have become a valid claim. On non-payment of the note, however, 
 it became void by the express terms of the condition. But the 
 condition says nothing of the note becoming v(dd. It is. and 
 remains a contract with the company for whicli the maker lias 
 received, up to the time of its maturity full consideration. In the 
 absence of an express stipulation that both contracts shall be 
 avoided if default is made in payment of the note, eftect must it 
 seems to me be given, both to the condition and to tVie note. Hy 
 the former the policy is expressly declared to be void, but the 
 maker's liability upon the note continues without any stipulation 
 that an attemi>t to entbrce it shall re-instate the policy which had 
 been avoided or simply ceased to be in force by the mere tiict of 
 iion-paymeut. It is (piite consistent with this that acceptance <d' 
 payment of the note by the company after default sliould be treated 
 as a revival of the policy, but why should anything short of this 
 be held to have effect ? It is said that it is inconsistent for the 
 company to sue tlu* note, and at the same time say that thi' policy 
 for the i»i'emium on which it was given is forfeited, but that cannot 
 bi' so if the liability upon tlu' note has not been extinguished by 
 the omission of the maker to pay it or unless tlie assertion of a 
 right to payment of the note wiiether by a nu^'i' demand or by 
 suing it is to be regarded as an acceptance of it absolutely ijua 
 iiaynicnt of the itremiura, though the company may never be able 
 to recover anything upon it from the policty-htdder. I tliink the 
 ilefendant's case must be pushed as far as that. The maker, in 
 short, has bound himself to pay tlie note, utnl tlie company have 
 stipulated that if lie does not pay when it is due theiiolicy shall bo 
 
 I 
 
 
 
f 
 
 •41 I 
 
 ■%. 
 
 136 
 
 INSURANCE LAW OF CANADA. 
 
 void. This is the U-gal position of the partios. I faimot see how 
 the compatiy by asi^ertiiig their legal right upon the note, waive or 
 are estopped from asserting another legal right when they have 
 done nothing which would make it fradulent for them to insist 
 ni)oii it, or how anything short of payment by the Insured in his 
 lifetime a<'et'[)ted by the company, relieves him from the forfeiture 
 or entitles him to say that they have treated the premium as paid 
 or the forfeiture waived by suing or obtaining judgment on the 
 note 
 
 1 refer to Edge vs. Duke, 18 L. .T., Cli. 183, where it was held 
 that the insurance company had not waived a forfeiture incurred 
 by noii-jtayment of tlie premium either by demanding payment of 
 it or Ity bringing action tlierefor. See also Ware vs. Milville Fire 
 Insurance Company, 45 N..I., 177 ; .May on Insurance, )5rd ed., 
 seer. A&I ; Bunyan's Law of 1/ife Insurance, 3r<l ed., oilO. 
 
 I cannot agree tliat the other acts of the company upon whicli 
 the defendant relies, such as carrying the policy in their books as 
 an existing risk, including it (though not specially) in the oliicial 
 return of policies in force on -Ust December, 1891, are any evidence 
 of waiviT of the forfeiture. The}' are all e(piivocal in their nature, 
 capable of ex[ilanatioii, not intended to iiiHuenee the conduct of 
 the insured, and not, in fact, communicated to him, or known by 
 him. Insurance Company vs. Woltt, 95 U. 8. 826 ; Wilmot vs. 
 Barber. 15 Ch. IX 9»i, page 105. 
 
 As t hold that the default in payment of the note given for 
 tlie .Inly premium avoids the policy, and that the forfeiture thereby 
 occasioned luis not been waived, the non-payment of the January 
 l>rcmium is of tu) conse(iuence. Ihit upon the two important 
 <piestioi)s raised in reference to that [)remium, viz. : wliether the 
 tcr'u '"month" in the clause giving a month's grace for payment of 
 tlie premium is a lunar or a calendar month, and, secondly, 
 whi'tlicr a tender ot' the premium is sutHcient if nmde during the 
 grace but after the deatli, 1 may brietiy say (1) that I think it 
 sufficiently appears from the otlier parts f>f the policy that the 
 term is used in the sense ol being a caleiular month, because other 
 periods of time are mentioned which are ascertainable only by 
 reference to the latter ami calendar months expressly mimed, e. 7. 
 the [iremiums are payable on the 6th days of duly ami danuary in 
 eveiv year, which shows that the calendar year, or " a twelve- 
 month," is intended, and not "■ twelve months," and the policy 
 
 u 
 
 j^jk 
 
MAKINO OF OONTRACT, ETC. 
 
 137 
 
 vs. 
 
 tor 
 
 oby 
 
 nary 
 
 rtaiil 
 
 tho 
 
 lit of 
 
 .lly, 
 
 tlu- 
 ik it 
 
 tho 
 )tlior 
 
 i>y 
 
 .'/• 
 
 •y in 
 olvir 
 licy 
 
 speaks of the sonii-aiiiuial i»romiiims, ayjaiii imi)lyiiig caloiular 
 months, six of wliirli go to tlio lialf year. Catesby's case, G Rop. 
 :>77. Xo (loiil)t it is well settU-d in our law that in a written 
 contract, subject to certain exceptions, the wonl "month" <lescribes 
 at law a lunar month unless tiicre is admissible evidence of an 
 intention in the parties iisiiiii' the word to describe a calendar 
 month. Tlie Icadinti; i-asc is Simpson vs. Marn-itson, 11 Q. IJ. 28 ; 
 and see also Turner vs. P.arlow, :5 F. & F. !>4ti : Ilutton vs. Brown, 
 45 L. T. X. S., :U:} (1881), per Fry. L. J : IFart vs. NCiddleton, 2 C. 
 & K. K^ ; Laiiu" vs. (iale, I \\. & S. Hi. Stroud's dudical 
 Dlctionarv, Tit. Month. But such evidence nniy be drawn from 
 tluM'ontext of the instrument, ami we may here justly inler that 
 th<> ])arties did not mean to employ the term in this particular 
 chiusi' in any other sense than that in which it must be understood 
 in reference! t(i other pi'riods oftinu" which ari' spoken of, ami 
 which are made up of cah-ndar months, or which are described by 
 the usual names of such months. It is to he rei>'r(!tted that this 
 distiintion bet ween lunar and calendar months should still prevail 
 in iMii' law siiice the ancient and derivative lueanini? of the term is 
 obsolete as aiiplied to ordinary business attliirs and transactions ot 
 lite in this country, and the statuti>ry ruli' as given by the liitev- 
 pretation Act might well be made of general aii[ilicatioii. 
 
 In the Tnited States the eomnion sense rule has geiierallv 
 been adopted : Sheets v. Selden's Lessee, 2 Wal. 117, at p. 18!t ; 
 (Jross V. Fowler, 21 Oal. H!).] : Strong v. Birchard, 5 Conn. 3S7 : 
 Brewar v Harris, 5 Graft. 28;"). 
 
 The other ([Uestion seems to me one of some ditKciilty. The 
 language of tlu- policy is obscure, and though framed in more 
 geiK'ral terms in some respects than the [lolieies in (|uestion in the 
 Knglish cases, Simpson v. Accidental Di'ath Insurance (.%>., 2 
 0.15.N.S., 257 and Pritchard v. Merchants, :? C U.N.S,, (522. the 
 present inclination of my opinion is tlnit it must i>e construed as 
 nu'aniiig that payment of the premium must be nnide in the life- 
 tinn! ol'the insured. The clause as to reinstatement which is tbiiiid 
 in direct c(nincerK)n with the '•'grace" clause implies the con- 
 tinuance of the life at the end of the nnuith, and to hold that the 
 grace continues after the death to the vnA of the month involves 
 the ahsiirdity, that, although the policy has become a claim by 
 tleath within a month so that rhe premium (Might then to be a 
 mere matter of account, it will be avoldi'd, by the express terms of 
 
^1 , ' '■ 
 
 fiiTfriiiTfTiifrrfirriiri 
 
 ■y^^ 
 
 138 
 
 INSURANHE LAW OF CANADA. 
 
 tlio ])rovision and tlic cliiiin det'catod, by the omission of tlie iii- 
 Kiiri'd's re[irosc'!irativo8 who may know nothing; about tho mattt-r. 
 fo pay tlic iironiium in oash lictbrt.' the oxpiration ol'tho month. I 
 doubt if the rofoivnce in tlic first daut^e of tlio i)oliey to tho 
 doducition of "the balunee of tlio current year's premium, if any," 
 bus anythiniT to do with the ease of doatli (biriniif the month's 
 •rrace. It seems rather intended to provide for a ease where tlie 
 eompany insure upon a stipuhition for a yearly prcmiuii), Avhieh 
 may have been divided into quarterly or halt-yearly payments tor 
 the eonvenienee of the insured who afterwards hajipens to die 
 durinjr the quarter or ludf year, and then the eompany dedtict the 
 l)alanee of the yearly premium. The undertaking of the company 
 to pay on proof of death during the continuaneo of the poliey docs 
 not assist the argument. The question is whether the policy is 
 continued during the month if death ensues before payment. If 
 the eompany had intended to be liable in that event they could 
 easily have said so. The question is seldom likely to arise since 
 the circumstances must be rare in which a company will think it 
 prudent as a matter of l)usiness to raise it. We must, however, be 
 guided by what they have chosen to "xpress by their coTitract and 
 not by their practice, how general soe\ er that may be, though of 
 tliie indeed, we have no means of knowing. If their intentions 
 are good, they will, now that tliis ambiguity in their contract has 
 been pointed out, readily fiiul a way to remove it. T must add 
 that I do not wish to be understood as expi'essing a final opinion 
 on this point, which though suggested in the hearing was uot 
 really argued. I merely desire to point out that the (question is 
 not BO absolutely free from doubt as the respondent's counsel 
 asserted it was. There are cases in the American courts such as 
 Warden v. Guardian Mutual Life, 39 N. Y. Sup. Ct. 317, which 
 favour the respondent's contention on this point, but the frame 
 and wording of the policies in question are so different that they 
 cannot be accepted as safe guides in a case like the present. 
 
 The appeal must be allowed ami the counter-claim dismissed 
 on tlie ground of the non-payment of the July premium. 
 Maclknnan, J. A. : 
 
 The learned judge held tliat, although by non-payment of the 
 note at maturity the policy Itecame void by virtue of the Ciuidition, 
 tlie forfeituri! had been waived ; and as I understand his judgment, 
 that the waiver was by the i)rocee(iings taken to enforce payment 
 
.MAKIN<i OF CONTRACT, ETC. 
 
 139 
 
 of tlu' iiiitc. Uiik'sr* tliat conclusion of the learned Jnd^e can 1)0 
 (>upporte«l. the appeal on the counter claim must succeeil, and it is 
 not nece>:-aiy to consider tlie question upon the premium of Jan- 
 uary or the sutticieney of tlu' tender of the premium after the 
 death ot the assured or some other cpiestions which were argued 
 l)ofore us. 
 
 The jiremium was due on the utli of July. The previous one 
 had heeii due and had heen paid on the oth of January. They 
 were payable in advance, and hut for the stijudation for the 
 month's Lcract' payment on the 5th July would have heen a failure 
 on the part of the assured to comply with one of the conditions 
 mimed in the policy on which the company's promise rested, and 
 would have heen a good answer to an action for the money. It 
 follows that the 5th of July was one of the days of grace. It was 
 the first day of the month of grace. If so, the 4th of August was 
 the last day, and no payment having heen made on or before that 
 day, the company might have refused to receive it, and have 
 withdrawn from their contract. The}' did not do so, however. 
 They received the note of the assured at sixty days, and they gave 
 him tlie usual official receipt for the premium. I think that was a 
 clear waiver of the default on the part of the assured. It could 
 mean nothing else. They were not olJiged to receive it, nor was 
 the assured ol)liged to give it. Hut tlie assured did givi> his note 
 and the company received it and gave him a receipt for the over- 
 due premium, and it is (piite clear that during the currency of the 
 note the risk continued. It seems eqmdly clear that, but for the 
 condition endorsed on tlie policy as to the effect of non-payment 
 of the note at maturity the risk would have continued until the 
 5th of January. 
 
 That condition, however, declared that non-payment at matu- 
 rity would avoid the policy, and the non-payment occurred. The 
 policy therefore clearly liecanie void on the 8th of October, unless 
 it was again set u]* by some act of waiver. The proceedings to 
 recover payment of the note Avere of tlu' most unequivoi'al kind, 
 and if the company had no right to take those proceedings I'xcept 
 on the theory that they were still on the risk, it would lie the 
 strongest evidence of waiver. The fpiestion, therefore, arises, liad 
 the company a right to insist upon the forfeiture and also to 
 recover tlie note, and could the assured have set up any defence 
 against the note on the ground tluit the policy \ad lapsed? 
 
 i 
 
140 
 
 INSURANCE LAW OF CANADA. 
 
 I think thoro can Itc hut one answer to that question. The 
 note was i^iven tor \ahiahle eonsitleration. In consideration of 
 gettiiiif it tlie company sot up again the contract whicli liad ceased 
 to he anv longer hinding on them, and cami; uinhM* risk once more. 
 This risk coiitinncil for sixty days, (hiring wliicii, if the assured 
 had died, tlie company would have had to pay. There was no 
 total failure of consideration nor even a partial tailure, for having 
 regard to tlu' condition, the consideration for the note was an 
 insurance, for six months if paid i)Ui\ctually at maturity, and an 
 insurance till the 8th of Octoher and no longer if not so paid. The 
 assured had therefore received full consideration for his note and 
 was liahle to i>ay it whether tlie compaii}' chose to insist upon the 
 forfeiture or not. That heing so, the proceedings taken hy the 
 comjiany can he no evidence of waiver, and I tliink there was 
 nothing else in the case which could he seriouslv relied on for that 
 purpose. 
 
 I am therefore of oi)inion with great respect that the appeal 
 on the counter claim shoul<l he allowed and that both the claim 
 and co>niter claim should lie dismissed with costs. 
 
 It is not necessary in this view to decide whether payment 
 could he made after the death of tiie insured, and before the 
 exj»iration of .lie time of grace, but I may say that in my view the 
 payment could he so made. 
 
 Appeal allowed with costs. 
 
 The Court \vas e([ually divided as to whether the claim failed 
 by reason of tlie death before the premium was i)aid though before 
 tlic expiration of the montlrs grace. The Court was, however, 
 uiumimous in liolding the term " mouth '" to mean a calenchir 
 month and not a lunar month.' It would also appear from this 
 decision (1) that a condition nuiking a policy void upon non- 
 payment of a note given for a premium is not such a coiulition as 
 is rcfpiired by section 27 of the Insurance Act in order to be valid, 
 to be set out in full on the face or back of the policy, and (2) that 
 a com[>any has the riglit to insist upon the forfeiture of the policy, 
 upon the non-payment of such a note at maturity, and also to sue 
 and recover upon the note.- 
 
 70. Life insurance - Premium notes Non«payment - For- 
 feiture Conditions. -Another recent and similar case is that of 
 
 I Set" Act of IHlia, Sec. 12 (().) 
 
 -Sec Ht'iwrt of Superintendent of liismaiice fur IS'.I2. 
 
 m 
 
MAKIN(i OF CONTRACT, ETC. 
 
 141 
 
 Frank v. San Life Assurance Conqmny. In tliiit i-aso the assured 
 gave to the (lompaiiy, to cover the tirst animal i»remium payable 
 niuler a policy of lite assurance containing uo condition as to 
 lorteiture for non-payment n*-' premiums, two instruments in the 
 form of promissory notes at ninety days and a hundred and eighty 
 days from the date of the aitplication, each containing a provision 
 that if payment were not made at maturity the policy should he 
 void. The first note was not paid at maturity, and while it was 
 unpaid, and before maturity of the second note, tlie assured died. 
 
 Held, Haggarty, C. J. O., dissenting, that witliout any election 
 or declaration of forfeiture on the part of the company the con- 
 tract came to an end upon non-payment of the first note and was 
 not kept alive l)y the currency of the other note.' 
 
 The dissenting opinion of the Chief Justice set up the facts 
 that the application was made 28th March., 1889, and the policy, 
 dated 1st April, was declared to be in consideration of S-)4.45, to 
 be tliat (lay paid as premium for twelve months, and a like sum 
 on every 1st April thereafter, and that said policy was not binding 
 until after tirst premium was paiil. The defendants took two 
 notes in payment of the premium containing the sfipulatioii above 
 referred to. 
 
 The policy was duly issiu'd to the assni'i'd. 
 
 The first note matui'ed :2!tth -June, wlien the alleged attempt 
 at settlement was made. Deceased paid nothing on it. Tlie 
 seeond note did not mature until 'llXh Si-ptemlier. 
 
 During its currency the life drop[ied on duly llJrli. 
 
 The agent, Adams, who sought to prove ilie aliandoiinient ut 
 tlie contract, said lie liad applied to him several times durini;- the 
 currency of (he notes, hut the assured always said ln> could not 
 
 r"y. 
 
 Tlie defendants insiste<l that the dishoiioiir of tlu' first note 
 avi)ideil tiie policy on the allegation that its non-payment accord- 
 ing h) the terms should have that effect, but it also provided that 
 '•this note is nevei'tlieU'ss to lie paid." 
 
 I agree with the learned judge that these notes must be taki'n 
 to have iM'en accepted as [)ayment of the first premium, and that 
 the iioFu'v had become binding. It is sought tr avoid it bv the 
 
 'fil 
 
 I Frank vs. Sun Life Assuriiiu'e ('o , 211 A.H. .")(U. Mcdciuliii- vs. Xorlli Aiiicii- 
 (•!in r.ifo AsMinuice Co., 2(t AM. 1S7, iind .Mimufacluri'r.s' LilV Insuivincc Co. vh. 
 Coriio", 20A.K., ;i(iilapplit'(l. .Iini^incnl of .Sircot, J., revorsft . 
 
^^n 
 
 142 
 
 INSURANCE LAW Of CANADA. 
 
 comlitioiis suhsoqiioiit. Tlio loanied judge says that lio thought 
 the defoinlants ought to have availed themselves ot" their elcetioii 
 to forfeit on the non-payment of the tirst note. He says : 
 
 " There is no evidence here of any sueli election on the part 
 of the com})any. They seek to set up aii alleged arrangement 
 made hctween their local agent Adams and the assured hy which 
 it was said to have been agreed that the assured should give up 
 the policy in exchange for his notes, and that he should pay a 
 small sum towards the expenses ineurretl by the company in con- 
 nection with his application. I should, however, come to the 
 conclusion upon the evidence that no such arrangement was 
 detinitely ntade ; it is said to have l)een made before the notes 
 matured ; if so, why was it not carried out? There was nothing 
 to prevent it ; Adams had the notes, and the assured had the 
 policy within a few feet of him in the safe of the Express Company, 
 in whose offiee he was employed, and at whose counters one of the 
 interviews took place a few days betore the death of the assured." 
 
 The assured was accidentally killed on the 19th -ruly. 
 
 ()i\ the 22nd duly, Mr. Reid, the payee of the notes and the 
 cashier for the defendants at Toronto, and who states himself as 
 having charge of the collection ot premiums in Ontario, on hear- 
 ing, writes to Adams, a local agent at Brantford. 
 
 .luLV 22nd, 1881). 
 
 " Dkau Sill. — Yours of the 20th containing the return of the 
 following receipts to hand, for wliich accept thanks. I am sorry 
 von were compelled to return so many. Can vou do anvthiuii' 
 with the notes if I si'ud them to you ? I am sorry 1 sent you 
 telegram by the Dominion, Init was ignorant at the time as to 
 which company's messenger Cox was. I'oor fellow I he had a 
 quick and sudden call. This shows the advantage of having life 
 insurance." 
 
 It was admitted that due uotii'i^ ot death and proofs were 
 furnished and that tiie amount of the two notes was tendered to 
 defendants l)efore action was brought and refused by them. 
 
 This case is very distinguishable from flic Mcdeachie i-ase' 
 and also fnuu (Jordon v. Manufa<'turt'rs" Company, lately in this 
 court. 
 
 in those il was iieid tliat when lil'e di'op|icd there was no 
 existing contract as to payment of premium which was in default. 
 
 Here we have tlu' pecidiarity that there Wiis a current obliga- 
 
P#»s 
 
 % 
 
 MAKINO OF CONTRACT, ETC. 
 
 143 
 
 88!). 
 f tin- 
 
 thiiiii' 
 you 
 as to 
 liid 11 
 lile 
 
 WlTO 
 
 vrd to 
 
 ciisc' 
 11 tills 
 
 iis tio 
 ■limit, 
 liii'ii- 
 
 tioii not niatui'dl on a iioto which (letl'iidants had taken in lieu of 
 till! first year's preniiuin. It is true that (he first note had, as part 
 of its eontraet, the clause that if not luiid at maturity the policy 
 would be avoided. This would of course he at the option of the 
 compimv to act upon or not. They hari;ain that even if the policy 
 were avoided they niis^ht still collect the note. 
 
 The insurance companies that allow their agents to doalin this 
 verv loose and unbusinesslike manner with the payment of pre- 
 miums, will always have difficulties of this kind to contend with. 
 They issue policies based on the acknowledged payment of the first 
 premium and instead of requiring such payment as a condition to 
 the inception of the risk, they allow a system of accepting notes 
 pavable at various times, instead of tlie cash. They urge that this 
 is done in case of insurers giving tliem time to make up the 
 amount. It nuiy be so, but it is the usual founilation for an action 
 when the life unexpectedly drops. 
 
 I think the notes here taken must be considered as represent- 
 ing the [tremium, and, so long as one or more of them hi- current 
 on the dropping of the lite, 1 think they must be held to l)t> liable, 
 that a binding contract is in existence between them and the in- 
 suri'd. 
 
 If the dishonor of the first note necessarily avoids the policy, 
 why should the second note bind the maker to [niy ? Tliere would 
 be no ctuisideration for [laymciit excejit on the ground that the 
 giving the second note was to support the risk up to the dishonour 
 <d' the first note. 
 
 I cannot hohl here that the fact of the first note for part rd 
 the premiuni being dishonoured, nci'cssarily avoids the whole con- 
 tract under the circumstances in evidence in this casi'. It is 
 tleclared to remain a binding contract t'or payment — so tiir as to 
 the first note. In the MciJeadiie case there was no existing con- 
 tract of any kind in t'orce at the death. I do not desire to go 
 Iteyond the [irinciple there laid down, or to apply it to this claim, 
 and I theri'fore hold (hem still bound by the insiiranc<'. 
 
 Three days at'ter (he death, Mr. lieid, the payee ot' the notes, 
 notices the death, and adds siguitii'iintly that his sudden call was 
 an instance of (he bciielit oj'life insurance. 
 
 If. as now insisted, the insurance was at an end, the signili- 
 caiice of this moralizing is iiuu-h weakened in point and aitplication. 
 
 The defendants are protectcil t'roin loss ami reimbursed the 
 
 If 
 
 il 
 
144 
 
 INSURANCE LAW OF CANADA. 
 
 cash amount of the tirst year's preniimii, wi'icli ought to have- 
 been paid when policy was issued, by having the amount credited 
 in the iudirment against tliem. My learned brothers ditter from 
 me, and I candidly admit that 1 arrive at this conclusion with 
 very considerable doubt and hesitation. 
 Burton, J. A. : 
 
 This case differs from the cases we have recently decided, inas- 
 much as we have before us the rather novel innovation of a policy 
 without any conditions. I do not think, however, that that 
 circumstance can aft'cct the result, and that we must hold tliat the 
 policy had ceased to be in force before the death of the assu'vd. 
 
 The policy professes to be in consideration of the representa- 
 tions contained in the application and of the annual sum of !*;54.4r) 
 to be paid on tlie I:t day nf April in cacii year, commencing on 
 the 1st of A|>ril, 1889, a day tbcn passed. This, liowevcr, is ex- 
 plained liy tlic fact tiiat accompanying the application was an 
 agreement, inaccurately referreil to as a promissory note, agreeing 
 to pay to one lleid, an agent of tlii' company, or liis order, the 
 said tirst iiremium by two e([ual instalments, one on the 29th dune, 
 tlie other on the 27tli Se|itend»er. 
 
 The c(ini[iaiiy, when accepting the risk, agreed to jiccept the 
 tirst [ii'emiuni on tiu'se terms. The [lolicy thus took eflect as a 
 binding contract, and the ipiestioii is, wliether it was terminated 
 betori' the death of the assured. 
 
 But tile agreement in (pi 'stioii conlaiiieil a provision signed 
 l>y the iipplicaut to tln' elfect that if the said instalments should 
 not lie paid on those days respectively, the policy should lie null 
 and \iiid. Imt that llie said sums should nevertheless each hi' paid. 
 
 Although it is usual to exact the lirsl premium in ailva.ice, it 
 is liy no means unusual to exteml the time tin' its [laynient and to 
 I'eci'ixi' it ill half yearly oi- ipiarterly inslalments. It is true that 
 in most policies there is an I'Xpress condition that the poli<'y shall 
 he void in the evi'iit ot delimit in the payment of any instalment, 
 liul I apprehend such a condition is wholly unnecessary, the 
 puncliiiil paymi'tit of every part ol the premium lieing a condition 
 [irecetleiil to the liahilitv of t hi' company. I'nnciualily in payment 
 is of the \ I'ly es>ence of the hiisiiu'ss ol' lil'e assurance ; if, t hei'el'ore, 
 any of the iiuai'lerly instalments remain unpaid, the torfeitiire is 
 ahsohile. unless there is something in iheconli'acl itsell to dis- 
 pense wit h it. When no such sti|iulalioii exists it is the Weil- 
 
MAKING OF CONTRACT. ETC. 
 
 146 
 
 nit'il 
 
 ouhl 
 
 null 
 
 lu'ul. 
 
 '. it 
 
 111 to 
 
 ihat 
 luill 
 
 iicllt, 
 
 III.' 
 
 itidii 
 
 lUfllt 
 
 i'ori', 
 
 iro if 
 
 .lis- 
 
 vvrll- 
 
 »t*tiil)]ipi}ic(l uiulorwtaiuliiig that tiiiu' is miitoriiil, or as it is some- 
 times expressed, oftlie essence, or, as it iias been ably expressed in 
 other words by an eminent judge, thus : " An essential feature of 
 this seheme is the matliomatical oaleulations on wliich the pre- 
 miums and amounts assured are based, not the relation ])et\veen 
 the annual premiums and the risk of assurance for that year." It 
 is an entire contract for assurance for life (or, as in this ease, for a 
 jiei'iod of 26 \ cars), and as he expresses it: "The annual premiums 
 iirc an unity the present value of which is ealodated to corres- 
 1" id \utii the present value of the amount insured, a reasonable 
 percentage being added to the premiums to cover expenses and 
 contingencies. The whole p.remiums are balanced against the 
 wliole insuranci " 
 
 I take it (o be rlcar therefore, that without any express forfei- 
 ture clause, if this premium, by tlie terms of the policy, had been 
 payable by (puirterly instalments, a delimit in the paymetit of any 
 of then) e\eh 'or a (hiy, woubl have released the company from 
 payment, p c, no court conld relieve against it. 
 
 In the j)resent ease the applicant delivered to the comiinny 
 this agreement which they ai'cepted consi'iiting to postjione the 
 payment but (Ui tlie express conditimi that it not punctually jiaid 
 in terms of that agreement it should be no payment. Why should 
 that part of the agi'eement which bound the company bi' held to 
 be binding, it' not the rest ? 
 
 it is to my mind a confusion of terms to speak of d forfeiture 
 in this connei'tion. The policy was to cease to be bindin<r jf the 
 premium was not paid, it has not been paid— or whi<Ii is tiie same 
 thing an instalment has not l>een paid. 
 
 Nothing turns up(Ui the allegi'd agreement icferi'ed to in the 
 judgment ol the learned trial judge as to the cancellation of the 
 policy: if necessary to consider that point 1 should have au'i-eed 
 with him thai it was never completed. I am, however, very eiearly 
 "f i'piiiiou that (lel'aidt having l)eei made in payment ol' an instal- 
 lU'iit of the premium as agreed in, •!,,• policy had cease. 1 in b,- 
 binding bd'ore the death of the assured. 
 
 'fhe learned judge Hdlowed the decision in the (,»ueen's lleneh 
 which has since the judgment been reversed in lhi> court. 1 (hiuk 
 lor the reasons we have given we must grant the appeal and dis- 
 miss the action. 
 
 10 
 
 % W 
 
146 
 
 INSURANCE l,AW OF CANADA. 
 
 OSLKR, J. A. : 
 
 The l>olii'y in this case is a iiolicy without conditions as that 
 expression is generally understooil in reference to an insurance 
 contract. There is no condition, stipulation, or [)roviso, eitlier in 
 the l)ody ot" tiie policy or referred to tlierein exi)ressly avoidinu; it 
 if tlie premiums are not paid at the day mimed or if a note taken 
 for the premium is not paid wlien due, inir indeed is anythini!,- 
 said tlierein as to the case of a note being taken for the premium. 
 This distinguishes it in this respect from the McGeai'hie ami (Jor- 
 don cases recently before us. I'pon the true construction of the 
 terms of the policy I am of opinion that it is made a condition of 
 its (!oming into existence as a binding contract with the apidicant 
 and of its continuance as such that the first and successive pre- 
 miums shall, as to the tlrst, be paid before it conu's into force, and 
 as to the latter, shall be paid at the day stipulated for payment in 
 ea<'h successive year. We are concerned only with the tirst 
 [ircmium. Its payment is not admitti'd or acknowledgi'd on the 
 face of the policy, which though delivered to the applicant was so 
 delivered with a notice endorsed thereon that it was not binding 
 until the tir^t premium was [)aid. The company n^ay so deal 
 with tin' apiilicant as to show that the risk was inti-nded to conr 
 nience before the actual payment of the lirst premium. They 
 may give credit for it, or accept a i\ote for it, or other undei'taking, 
 payable at a I'uture time, either in satisfaction of the pri'mium or as 
 an extension of the tinu' for jiaynu'iit. In the case at the IJar 1 think 
 tlu' cvidei\ce supports the tinding ot the trial judge that the com- 
 pany acceptiMl as payment of the tirst premium the two agrei'iiu-nts 
 (note;', as they have been called, though they are not really notes, 
 being payable otdy on condition id' the av'i'cptance ot'the [)roposal 
 by the issiu' of the pt)licy) Itearing ilate the 2Htli March. 1889, one 
 tor tlu' paynu'nt of half the premium at the expiration of !)() days 
 an<l the other for piiyment of tin' balance at ISD days after date. 
 Looking at the fact that the receiiit for the premium was withheld 
 I shouhl myself have been disposed to hold that tliei'c was nothing 
 more than an extension of tinu'. |{ut it seems to nn' that it nndccs 
 no difference in point o\' law how the transaction is looked at. 
 Either way the (ompany hail conu' upon tlu' risk ami unless there 
 be sonu' stipulation or condition avoiding the [lolicy for non- 
 payment of the sum according to the tci-ins ,it the instrument 
 representing tiu' premium as tlici'e was in the [mlicies in ipie.-tion 
 
 
 
MAKIN(; OF CONTRACT, ETC. 
 
 147 
 
 'llU'lltS 
 
 |-0|K>Sill 
 nO, (1111' 
 
 »0 (lays 
 '1- (lute. 
 ithhcM 
 iiithinn' 
 
 iiuilciM 
 kt'il lit. 
 <s tlicrc 
 
 II' imii- 
 
 IMIIlCllI 
 
 llC;-t'n>!l 
 
 ill the r(ifOiit ciiscs iihovo rotbrrod to, the remedy tor the company 
 is coiitiiied to tlic souurities they have acceptod, they liaving; waived 
 tlieir riifht to payment in cash. These instruments each contain 
 tlie followiiiii: stipuhition "And it is understood and agreed that if 
 tliis note is not paid at maturity the policy shall be null and void 
 but this note is nevertheless to be paid." The first '"note" fell due 
 on the 2!lth June, but was not paid, and it remained unpaid at the 
 death viz. :— on the 19th July. The case turns entirely upon the 
 eih'ct to he <>-iven this agreement and whatever ditfioulty there is 
 in its application arises from the fact of its not being found in the 
 policy itself as it was in the McGcachie and Gordon cases and in 
 Thompson vs. Kiiickerboker Tns. Co. 5 Big. Ins. Cas. 8.104 (Otto) 
 r.S. 252 : Mutual Benefit Co. vs. French, 4 Big. Tns. Cas. 369, 
 and in apjieal 30 Ohio St. 240. But can that make a real difterence? 
 Tlic agreement is a collateral one, it is true, but is founded on a 
 valuable consideration and it is binding upon and enforceable 
 against the plaintifh lie is compelled to resort to it in order to 
 show that the premium was paid and that the policy was in force 
 and the dcfeiidiints are in my opinion entitled to say that if it was 
 paid it was so only on the terms and subject to the [irovisionsof the 
 agreement. 1 think the effect of the agreement is that if the 
 payment is not made as stipulated for, the poli('y ceases to be in 
 force unless the plaintitf is able to sliow that the defendants have 
 waived tlie default and elected to keep the p()li(y' on foot. There 
 is here no evidence whatever to justifv such a finding in tavor ol" 
 the plaiiititr. lu the Court below the case was rested on the 
 gi'oiiud, following the deeisi.;:; of the (Queen's iJench Division in 
 the \re(ieaehic ease, that the eomiiany was bound to prove tliat 
 they had eleeted in the life time of the deceased to avoid the 
 policy but that decision has now been reversed in this Court, and 
 the judgment reversing it governs the present case. 
 
 If. as 1 hold, the agreement of the -iStli March, 18N9, controls 
 or regulates the right oi the plaintiH' when default has been made 
 in paynuMit according to its tei'ms. 1 cunnot agree (hat any duty 
 wa? laid upon the defendants to lu'esent the note tor iiayiiieiit when 
 due. 
 
 ft was for the insured to seek out his creditors and pay them 
 and the conse(piences of his default in doing so were by the terms 
 of the agreiMuent defined. They were no more bound to present 
 the note to liim tbr payment in (U'der to avail them?olves ot the 
 
148 
 
 INSURANCE LAW OF CANADA. 
 
 agreement than tlicy would be to dematid payment of subsequently 
 accruing premiums before they could treat the policy as avoided by 
 their non-payment, supposing that the policy had contained the 
 usual condition to that eftect. The case of French vs. Mutual 
 Benctit Lifi' Insurance Company 4 Big. Insurance Cas. 369 w.as 
 relied upon by the respondent. That case was affirmed on appeal 
 in ;>0 Ohio St., R. 240, but the appellate Court pointedly refrained 
 from adopting the opinion of the Court below on that point, viz., 
 that a demand of payment was necessary. I can see no aiudogy 
 between such a case as this and that of a proviso for forfeiture of a 
 term for non-payment of rent where at con)mon law the laudlorrl 
 was ol)ligetl to make the demand of the tenant on the land in 
 order to avail himself of the jirovist). The case of rent was 
 liecuHiir and the rule did not extend to tbrfeitures tor breaches or 
 other covenants in the lease. 
 
 I refer iilso to Eoehner vs. Knickerbocker, 4 Daly 512, 63 
 X v., llJO ; rendelton vs. Same, 112 United States, 696. 
 
 I am unable to see how the fact of the time for the payment 
 of the other half of the premium under the second agreement had 
 not arrived at the date ol" the death ciin make a ditl'erence. The 
 Hiiestiou is what is the etl'ect ol' default luivitig been made in the 
 tirst. If the agreen.uMit in the llrst is valid, tlie e.vistence of the 
 other can hardly control il. The ease ap[iears tn me to be [)recisely 
 tlie siime as if there bail been Iml one note or iigreement payable 
 Ity two iiistiilmeiits with a clause of forl'eitui'e of non-payint'nt of 
 either. 
 
 I agree in iiliowingtbe appeal. 
 McLknnan. .1. A. 
 
 The policy sued upon in this case is an inslrument under seal 
 dated the 9tb oi ,\pril, 1S8!', and contains no s[ie(ial conditions 
 t'ither ii; tlie l)ody ot it or incor[ioi'ated by endorst'ini'nt. Apjiended 
 to it area niunbi'i' oi paragra[ihs called privileges and endorsed tlu're- 
 on is a notice, but these things form no jiart of the contract. The 
 policy insures the life of F. D. Cox in thcsnin of ij? 1,000, and binds 
 the conipany to pay that sum to the assurc<l or to bis assigns on 
 the 1st of April, 1914, or, it' he should die bel'oro that date to his 
 legal representatives within sixty days iifter the receipt of notice 
 and proof of the tleatli. This obligation is expressi'd to be in 
 ('.onHideiati(Ui, among ot her things, of the sum of !?;?4.53 to be to 
 the c(unpany duly paid on the 1st of April, 1889, as a premium I'or 
 
MAKING OF CONTRACT, KTC. 
 
 149 
 
 •isoly 
 •lit ol' 
 
 SCill 
 
 itidiiH 
 'inlcd 
 
 lu'l'l'- 
 
 'n.e 
 
 lillllB 
 
 on 
 (I liis 
 lolico 
 H' ill 
 If lo 
 II lur 
 
 12 calendar months, and of the payment of a like amount on the 
 firflt day of April next, and yearly thereafter on the eame date in 
 every year duritii;' the continuance of the policy or until 25 full 
 premiums shall have heen paid. 
 
 The first question that arises is the construction of the policy. 
 It is a covenant to pay ni<jney at the end of 25 years or within 
 sixty days after the date of death of the covenantee in consider- 
 ation of $34.58 to be paid on the 1st of April, 1889, as the premium 
 for 12 calendar months, '.^tc, and it is a unilateral covenant contained 
 in a deed without any oliligation on the covenantee to pay the 
 premiums. It is clear therefore that the payment of the premiums, 
 which are the consideration for the defendant's covenant, is a 
 condition precedent and the plaintiff cannot recover without 
 averring and proving that the payments were duly made or some 
 siifHcicnt legal excuse for the omission : I'ordage vs. Cole, T Wms. 
 Saunders 551, 552 : Leake on the contracts, 564-5. One of the 
 rules ot our construction in such cases is that "when a dny is 
 apjioitited for the payment of money, &c., and the day is to happen 
 after the thing which is the consideration of the money, &c., is to 
 lie performed. ih> action can be maintained for the money, &c., 
 bct'orc pert'iniiam'C." It is true that in this case the day named 
 for the lirst payment is the first of April, while the convenant is 
 (lated the ninth day of April and therefore strict compliance with 
 till- exact language ol' the policy was impossible. To make the 
 liinguage sensible the word "first" must be rejected and tlu'u the 
 paynicnt would be to be made in the month of Ajiril. The words 
 are "to be duly {laid" indicating not a payment which had already 
 liccn made. Init one wliicli was to be made in the future. 
 
 Therefore to entitle the plaintiff to succeed, he must jirove 
 payment of tlie siini ot' .S^U.o-"! or sonietliing e(|iiiva!eiit to it, at 
 late.^l lu'fore the end ol'the nxiiith of Ajiril, ISH'.I. It is admitted 
 that the actual money was not paid, and what the plaintiff does is 
 to show that lu'lore tiie policy issued the coiii[>any reeeivi'd in lieu 
 of piiynieiit the two jiapers called note.-, dated the 28th of Miinh, 
 ISS'.I. The (|Uestioii tluMi arises what is the effect of that. Thesi- 
 papers at first sight look like promissory notes and perhaps wer(> 
 intended to be siieti, but the promise to pay being c(Uidit ioiial upon 
 the aeeeptanee by ; ne company of the proposal tor insuraiiee, it is 
 elear that they are not negotiable promissorv notes, but were 
 agreements between the assured ami the agent of the coni|*aiiy, 
 
 m 
 
" 
 
 A,-(i-J!AiU.... 
 
 ^i 
 
 % 
 
 150 
 
 INSURANCE LAW OF CANAHA. 
 
 Mr. Reitl. The iilaiiitift's case- is tliat tlie company aoccpted tlicso 
 atjroenieiits in lieu of payment ol' the Hrst jiremiiini and llie 
 evidence sliows that tliey did so. They are instruments expressed 
 to l>e for vaUiahle consideration and tlie company having acceitted 
 tliem and luiving delivered the policy tlioy hecame hinding as 
 agreements, collateral to the policy. The effect was that the risk 
 upon the policy attached : the company gave tlie assured an 
 extension of time for payment aud the latter became bcnind to jiay 
 the }>remium at the time mentioned in the agreements. Kach 
 agreement, however, contained a provision that if payment was not 
 made at maturity the policy would l)e void. Unfortunately tlie 
 assured did not i)ay the lirst sum at maturity, and he was in 
 default at the time ot liis death on the lOth of July, Without 
 the agreement the iilaintift' has no case and he cajinot rely upon it 
 without being bound by all its terms, one of which in the events 
 which liave happened is fatal to him. I think he cannot be heard 
 to say tliat the polit^y did not cease to operate or that the company's 
 liability did not cease by reason oi' the non-payment (>f the iirst 
 note when it became due on the 26th of June. 
 
 i do not think it was necessary tor the company to make any 
 election whether they would treat the polic}' as subsisting or otlier- 
 wlse after default. B3' the very terms of tlie agreement the 
 extension of time for payment of the ])remium was limited and 
 when that time had expired without payment being made the 
 assured was in the position of a person who had not paid the 
 premium called for by the [lolicy an<l wlio had not performed the 
 condition precedent to tlie comjtany's liability. Xor am I able, 
 with great resjiect, to adopt the opinion of the learned C/hief Justice 
 that it makes any difference that at the time of the death the 
 second agreement was still correct. It is like the I'.ase of a note 
 jiayable by instalnuiiits and default made in the first payment. 
 I sec no reason why the {(arties should notliave agreed, as they did 
 lu'rt', that the liability of the comjiany should come to an end oti 
 ilefault in paying the lirst note or any instalment, or why tlu'y 
 should not be bound accordingly. The company was, in my 
 opinion, under risk until the first piiynient became tine, and if thai 
 iiad been pai<l the risk would liave continued until the day 
 appointtid for the second payment and its continuaiK'c after thai 
 would have depemled on whether it was paid or not. 
 
 For \\\v>v reasons I think the company's liability <'ame to an 
 
?*>.* 
 
 
 MAKINO UK CONTRACT, KTC. 
 
 151 
 
 e iuiy 
 
 tlie 
 
 inid 
 
 the 
 
 1 the 
 
 the 
 
 blc, 
 
 istii-o 
 
 I till" 
 
 llOtl' 
 
 llcllt. 
 
 1(1 1)11 
 
 they 
 
 my 
 
 thiU 
 
 iliiy 
 
 thiit 
 
 011(1 oil tilt' twi'iity-sixtli (lay of .Tuiu', and tliat tlu^ action should 
 liavo lu'cii dismissed. 
 
 1 tliiTcforc think with irrcat respect that the appeal should 
 he allowed. 
 
 This decision was eonfinned hy the Supreme Court of C!aiiada.' 
 
 80. Payment of Premiums, etc. — The foUowinirjudjfinent ot' 
 Meredith, C.J., in Fleminij v. The Lmvloii and Lancashire fosnr- 
 niti-e Compavii'- was rendered on the llth March, 18!M!. 
 Meredith, C.J. : 
 
 Action tried hetore nii' without a jury (ui the 27tli January 
 last at the Toronto Assizes. The action is hrou<;ht to re(X)ver the 
 amount of two policies of insurance of the defendants on the life 
 of James Fleminu;, dated the 4th Decomher, 1894, for f 5,00(» each. 
 
 The applications for the insurance were made hy Flominsr on 
 the lOtli of Xovemher, 1894, to W. H. White, who was the 
 defendants' general agent for the district of Toronto and vicinity, 
 and the premium jiayahle in respect of eaclr of them was $105.80, 
 Hfty-fivc per cent, of which the agent was, under the terms of his 
 agreement with the defendants oftlie 2nd August, 1892. entitled to as 
 his commission for ol)taining the ri^ks. The applications were for- 
 warded in due course hy the general agent to the head othcc of 
 the defendants at .Montreal, and were considered and accejited on 
 the 4th of Decemher, 1894, and on the following day interim 
 acceptance receipts, on the defendants' usual form, weiH' forwarded 
 to White, accompanied hy a letter <d' the same date (Kxhihit 9), 
 in which he was informed that his account had heen dchitiMl with 
 the amount of them and oi' another receipt relating to another 
 insurance which was sent to him at the same time. IJy the terms 
 of thi^ agreejnent hetween the defendants (Kxhihit tl) and White, 
 he was not, "under any circumstance," to " colh'cf or n'ccive 
 iKiymeiit of any premium without giving the head ofHce receipt or 
 pidicy therefor," and it was provided that all iircmiums shoujil he 
 ]>aid in cash or notes approved iiy the defendants, and that the 
 agent should not receive' payinen; for premiums or renewals thereof 
 in any other manner. White was furnished hy the deieiidants 
 with fiu-ins of reci'ipts, whi(di, from their terms, would appear to 
 have hceii intended to he giv»'n to ap[ilicantH for insurance w iio 
 
 ' 1J;KS. (". H., p. IW, note. 
 
 'i Sec Ih'port of Siipi . <tf Ins , ISSI,"), p xlv 
 
 m 
 
m 
 
 152 
 
 INSl'KANCE LAW OF CANADA. 
 
 desired to pay their iirat premium by note, or partly by note and 
 partly in casli. 
 
 Tlie following is one of these forms put in on the trial (Exhibit 
 
 17): 
 
 Xo. 4420. (In duplicate.) Note payable 
 
 London and ]jancashire Life Assuranei; Company. 
 Agont's interim receipt. 
 
 Received from , FCsq., of , his promissory 
 
 note for dollars (on which the sum of dollars 
 
 has been credited) l>eii\g for the iiremium for an assurance 
 
 ot $ on the life of , provided the 
 
 application be accepted by the company, and if accepted, I agree 
 fo deliver the otlicial acceptance receipt from the head office of the 
 company in Nfontreal ; or, siioiUd the said application be deciineci, 
 
 I undertake to return to , Esq., or to his order, 
 
 the said promissory note. It is hereby understood and agrei-d that 
 it the note be not ]iaid at maturity, tlu' policy or official receipt 
 shall be null and voiil, but lu'vertlieless the note shall be paid in 
 full. 
 
 Aii'ciit. 
 Date 
 
 I'lacc. Toronto. 
 
 White liatl given to Fleming two nn-i'lpts. dated 10th 
 November, 181M, for promissory notes for the amounts of the 
 lireiniuins payable l)y the latter ; the receipts wi're upon the I'oi'm 
 1 have just referred to, excciit that all the words in it commeiu'ing 
 with the words : " It is hereby understood " down t<. the end of 
 the reeeipt wei'c stricken out, ami the word^' " within lit'teen days" 
 interlined. One of these promissory notes made by Fleming, tlie 
 insiir"<l, was dated the 10th November, 1804. and was payable to 
 the ordi'r of Wlutesix months after date, and the other made by 
 Robert Fleming, a brother of the insured, was <late<l the 10th 
 Dceember, 1804, and was payable in like nnmner, three months 
 after date. White (lid not coininunicate to the defendants the Tact 
 tlnit he had taken these promissory notes, or inform them how be 
 had arranged with P"'l(Uning Ibr [laynu-nt of the [iremiums, l)ut on 
 ;Ust Deeemlier, 18!)4, lu' telegraphed the defendants as follows: 
 " Mailed my mite one thirty-live 1(1 for premiums Fleming, 
 McGlade, Thomson." ;ind on the same dav he wrote the defend- 
 
MRKINU OF CONTRACT, BTC. 
 
 153 
 
 iints as follows : " I oinittcMl to inclose settlement of new premiums, 
 hence I wired you to-day as follows : 'Mailed ray note $135.16 for 
 jirfmiums Fleminsi^, McGladc, Thomson,' which I inclose herein." 
 The amount mentioned in the telegram and letter was made up of 
 the premiums on the two insurances in ([uestion and those of 
 McGlade and Thomson, after deducting the agent's commission of 
 5") per cent. On the 3rd January, 1S95. the manager at the head 
 oftii-e wrote to White acknowledging the receipt of his letter of 
 till' 31st Deccmhcrin these terms: '' [ am in receipt of your letter 
 of olst ult., enclosing note at three months for S?135.1H, which we 
 will hold as re([uestcd." Ai'cording to the evidence of tlie man- 
 aii'cr, the poli(;ies in (piestion were included in the defeinhants' 
 return to the insurance (U'partment. and it must therefore have 
 represented the jiromissorv note of Wiiite as an asset f)f the 
 licfcndants, and the policies as "outstanding [lolicics in force." 
 At this time, according also to the evich'iice of the manager, he 
 assunii'd that White had received the premiums in cash. It did 
 not appear in evidence when the interim acceptance receipts were 
 liiuideil hy White to Fleming, hut they were ]iroduced liy the 
 plaintiff, and are cnuntersigned liy White — his countersigning 
 lu'ing, according to a note at the foot ot' the receipts, ni'cessary to 
 their validity. White, after receiving the jn'omissory notes, hut 
 at what time was not disclose(| in evidence, discounted them with 
 IJurke & (irahani. a tirni of private Iiankers in Toronto, reci'iviiig 
 the amounts of them. U'ss the discount, and endorsing tlu-m to 
 Burke iV Graham. It is imjiortant at this point to note that at the 
 date when White forwarded hi- own promissory note to the 
 defendants, he had possessed himself, hy means of the discount, of 
 Fleming's promisM)ry notes, and had in hand I'ar more money than 
 would have heeii sufHcient to pay to the defendants that part oi' 
 the prciniunis to which they were entilled. ()iithe •22nd .faniniry, 
 ISit,"), AVhite wrote to the ilefenchmts asking them to forward, 
 among othei-s, the policies in (, uestion, ;md they were accordingly 
 
 forwarcU'd to him on the fol 
 informed him that he had heen deitit 
 
 owniu' <lav. witli 
 
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 ■;pect of them. The promissory note of the 10th Deci'ndier, 
 
 18!U. was renew(>il in fall 
 
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 list. March, IS!)"), hv a i 
 
 n-w 
 
 pi'oinissory note at two months, and on the jth dnne 
 
 tlu' other ]>romissory note of the ItHli Xovemh 
 
 for §100.80, ST) heing paid in ca'^h to White, who u;ave 
 
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 154 
 
 INSURANCE LAW OF CANADA. 
 
 ceipt for the note iind i-ash as having boon recoivod "to rctinr 
 James Flomiiig's iioto tor JfilOo.SO, diio May 22iid, 185(j ;" hut on 
 this lattor note boiiisr taken to Burke & Graham they refused to 
 renew, and retained the note of the 19tli Xovemher, 1894, in their 
 own liands overdue. The promissory note of the 21st Mari-li, 
 1895, was not paid at maturity, and it, with the note of tlie 19tli 
 November, 1894, remained ovenhie and unpaid in Burke & 
 Graham's liands until some time in .Inly, when, in order that the 
 defendants misjht be in a position to say that they held the notes 
 as past duo notes, they wore taken up by White with moneys fur- 
 nished to him bv the defendants, to whom they wore handed over 
 Fleming was at this time dead, liis death having taken place on 
 the previous 15th June ^''^pon this state of facts the defendants 
 contend that the polici.^' were never binding on them at all, be- 
 cause, as they say, Whi-^'^ uoithor received the cash nor promissory 
 notes approveii of by then- >r ho iireiaiums, and that even if the 
 promissory rotes tak'-U V, . , or White's own note, are to be 
 treated as notes given for •he insurance premiums, or even if the 
 latter was accepted in satisfaction ami discharge of the premiums, 
 the conditions indorsed in the policies jirevent the ]»laintitl recover- 
 ing, the policies having, as they contend, become void in conse- 
 »|Uonce of the notes not having boon paid at maturity, and they 
 invoke in supjiort oflliis contention, conditi(»n one, which jjrovidos 
 that policies shall not be in force until the iirst premium is paid, 
 and condition 10, which is as follows : " If a note or other obliga- 
 tion be taken for the tirst or renewal premium, or any part thereof, 
 and such note or oliligation ho not jtaid when duo, the policy or 
 assurance becomes null and void at and from detiiult, but such 
 voidance of the jiolicy or assurance shall not relieve the maker 
 thereof trom i»aymont of the note or obligation, and the premium 
 shall bo considered as earned and shall be recoverable by the com- 
 pany. The itoliey or assurance, however, may bo revived and rein- 
 stated at the discretion of the directors on condition of payment of 
 the premium and interest an<l ovidt'iico of continued good health. 
 Should any note or otiu'r obligation for ])romiuni be current at 
 death, or other event, upon which tin* sum assured becomes pay- 
 able, the amount ot the note or obligation shall be deducted from 
 the claim.'' And they tiirther 'Muitend that the renewal of the 
 promissory note of the 19th Novi'inber, 1894, after it was overdue, 
 was an unauthori/A>d act of the agent, and not binding on thom^ 
 
MAKINC OF CONTRACT, KTC. 
 
 155 
 
 and that after default tlie directors, and they only, couhl revive or 
 reinstate the i>oHey. It was urjifed on heluilf ot" tlie ^ihiintitt' that 
 the effect of the transmission Itetween Wliite and Fleming was that 
 there was u [>ayment in cash of the premiums, and tliat even if that 
 he not so, tlie defendants aeeeitted White's promissory note for 
 $135.16 in payment of the portion of the premiums to whicii they 
 were entitled, and that the condition relied on has no application 
 to a case where the promissory note of a third iierson is aet-epted 
 in satisfaction of the premium. The case is hy no means free from 
 difliculty, hut I have, after much consideration, come to the c«)n- 
 clusion that the plaintiff is entitled to succeed. There is nothing, 
 so far as I can see, to |>revent a eomjiany, such as the defendant 
 company is, accepting in satisfaction and dineharge of a first or any 
 other premium, the note of a third person, if the company chooses 
 to do so, atid it seems to me that to a promissory note so taken 
 condition 10 can have no application. It would he indeed an 
 anoiDaly if, after payment ])y such promissory note, and the pre- 
 mium heing tlierehy satisfied and diseliarged, the default of the 
 maker of the note in paying it should voi<l the policy and render 
 the insured also liable to pay the premiums in satisfaction of which 
 it had been accepted. The condition is, in my opinion, not applic- 
 able to 8\it:h a case, but to cases where the [»romiss(»ry note is taken, 
 not in satisfaction and diseharge of the premium, but for and on 
 account of it, where it would operate only as a conditional payment 
 to be absolute if and when the noti' was paid at nuiturity. If this 
 be the correct view as to the law, what is the proper finding of fact 
 as to the way in which White's jtromissory note was received by 
 the defendants. It is, I think, that the note was taken in satis- 
 faction and disduirge of the premiums. As f have ]»ointed out. 
 White liad the proceeds of the promissory notes given by the 
 Flemings in his lumds, though he was liable to Ihirke iV (iraham 
 as indorsers on them — the notes were not taken by him on the 
 defendants' account, but were taken and dealt with as a transaction 
 between him and the insured, and for tlu' jmrpose, as T think the 
 fair infereni'e is, of enabling him lo pay to the defendants in iiish 
 the share of the premiums to which they were entitled, and to give 
 to him tlie present use of his own share of them, and White, 1 
 think, when he sent his letter and telegram of the JUst Decejnber, 
 I8!t4, to the defendants, intended that they should take, and they 
 in receiving his j»romissory note intended to take and took it in 
 
 if 
 
156 
 
 INSURANCE LAW OF CANADA. 
 
 !! [• 
 
 satisfnction and discharge of the premiums due to them in respect 
 of tiie policies to which they had reference. In reaching this con- 
 cUision T rely on the language used in the correspondence read in 
 connection with what had taken place, and the manner in which 
 the (k't'cndants afterwards treated and dealt with the policies, 
 rather than the recollection of "White and Brown (the manager) us 
 to what the tnu^ character of the transaction was. The provisions 
 of till- bond given by White and his sureties to the defendants in 
 1891 art' not without significance. In addition to the provisions 
 contained in the printed form used, which I take to be the ordinary 
 ones, I find a special provision in these words: "It is understood 
 and agreed that this bond will cover payment of any and all notes 
 made by W. IT. White that the company nuiy accept from li.g saitl 
 W. II. White tor i>rcmiun»s under policies effected by him as well 
 and oficttually as if no such note or notes wore taken." It may be 
 well, I think, that the arrangement made between "White and 
 IJrown (the manager), to which the latter referred in his evidence, 
 was that to which this term of the Itond refers, and it was probably 
 in pursiian«!e of it that White assumed the right to send as he <li(l 
 his own promissory note in settlement of the premiums. I am 
 inclined to think also that the transactions between White and the 
 insured amounted, whcji the proceeds of the promissory notes 
 which lie received from him came into White's hands, to a payment 
 ill cash of the preminius, and the plaintiff's right to recover may 
 be supjiorted on that ground also. The defendants' counsel cited 
 the case of Mi'Cormac v. The Temperance and General Insurance 
 Conijiaiiy, which he contended was a conclusive authority in favor 
 of tlie (leteiidaMts. but I iim unable to agree to that view, and the 
 lauiiMiage of the learned Chief Justice (Armour) seems to lue to 
 iiidiiatc that in liis opinion, on a state of facts similar to that wliicli 
 exists in this case, a conclusion ought to be come to different from 
 that which was arrived at in that case. He says: " The liability 
 ot the agent to pay the <let'eiidaiits the amount of the note of the 
 iiisuii'd could not be substitutt'd for the liability of the insured to 
 pav it by the act of the agent without the consent of the defend- 
 ant,-." Upon the whoK' the plaintilfis, in my opinion, entitled to 
 Jmlunieiit tor the full amount of the policies, with interest from the 
 flatcot the receipt by the det'endants of the [iroof of death, together 
 with her costs of suit. 
 
 The Judgment w.is confirmed in appeal, tim court being 
 
.hi 
 
 MAKINO OF CONTRACT, ETC. 
 
 167 
 
 equally flivided, and an appeal is now pending to the Trivy 
 Council. 
 
 80a. Notes for premiums unpaid, etc.— Powers of Secretary 
 in Canada of foreign company. -J. M. was insured by a life policy, 
 under which 30 days grace was allowed for paynient of premium, 
 and a lapsed [tolicy might be renewed within a year upon proof of 
 health, payment of arrears and a tine. S. was the resident secre- 
 tary in Canada of the defendant, with the ]»owers of a general 
 manager, and there was a local board of directors in Canada, but 
 S. managed all matter connected with the receipt of premium, 
 communicated directly witli the board in England, took his 
 instructions from them and laid before them monthly accounts 
 from which it could be ascertained wlicther premiums falling due 
 tiic preceding month were unpaid. The assun^l being uiiabli' to 
 pay a premium about to fall due, wrote to S. asking him to take a 
 note at three months. S. replied : " I am sorry you ro(piirc three 
 mtniths' time, but I suppose it must be dotie, although it is 
 against our rules. I shall have to take n^sponsildlity niysi'lt'. [ 
 enclose a draft for acceptance, whieh please return early." He 
 also wrote that the company were very particular about overdue 
 premiums. From this time 8. accommodated the assuvid by 
 taking notes, to which interest was added. On the !Hli of August. 
 1H7!I, K., the cashier of defeiuhuit, wrote to the assured, acknowl- 
 edging receipt of his letter with a blank note whieli had l>eeM sent 
 to S. to be tilled up for the renewal of a note about to lull diU', 
 ami saying that S. was absent from town, and that as the two 
 premiums of Xovendter, 1S78, and May. 1870, were so long over- 
 due hi' should have to refer the matter to S. on his retui'ii, ailding : 
 "• Until these back premiums are paid the soriety is otf the risk."' 
 The death occurred on the 2!»th Octolier, 1S7!>. at which time 
 tlu're were two notes outstaiuling — one for the premium due •idth 
 November, 1878, dated 7th February, and due lOtli August. Is79, 
 which was unpaid ; and one dated 2lst dune, 1870, at six months, 
 for the ]»remivim which fell due on the ;50th May, 1S70. whicli was 
 still current. After the tleath these two notes were temh'red to 
 the defendants and refused. S., being e.xunjined, said he diil his 
 best to keel* the policies alive, and had no doubt at the time of his 
 authority to do so. The jury found that the notes were taken by 
 the defendants' agent as cash i>ayment ; that the taking of them 
 was witliin his authority ; and that he had waived payment upon 
 
 V.' . 
 
T' 
 
 158 
 
 INSURANCE LAW OK CANADA. 
 
 tlu' (lute tlu' |iroininiii was (liio ; and a Vi'nUct was ontcrod for 
 plaiiitiit : lIoM (Ilagarty, C. J. dissenting?) that tlio ovidoni-o 
 showed that it was within the authority of the resident sectretary 
 to accept notes in payment of i»reniiunis, and there was nothing 
 showing notiee t(» the assured of any want of suoii autlii»rity ; that 
 the non-i>aynient of the note in August, 1879, while the other 
 note was eurrent, did not determine tlie poliey ; and tlie verdict 
 ought not to be di8turl)ed. Per Armour, J. : Defendants in Eng- 
 hmd liad )»ecome aware by the returns sent l)y 8. of the forbearance 
 granted by him and had ratitied it. Per llagarty, ('. J. : Admit- 
 ting tliat S. miglit acceitt ]»avment after the proper time, he coubl 
 not !nake a binding executory agreement to give further time and 
 extending perliaps beyond the (hiration of life.' 
 
 81. Note for premiams unpaid— Declaration by company 
 to work forfeiture. — IJy a policy of insurance dated 18th April, 
 1H(!!>, for the payment of the annual i»rcmium of $29.50 payable 
 (pmrterly, the defendants jointly assured the lives of the plaintitt' 
 and his wife in ij 1,000, and engaged to i>ay the same on the df .th 
 of the assured when the event provided for ha[»pened, dedr iig 
 therefrom all notes for premiums on. the policy unjiaid at that 
 time, together with any balance of the year's [iremium rcnniining 
 unpaid. An<l in case the assured should not jiay the said 
 premiums on or before the sai<l several days etc., and the interest 
 on ill! notes on account of premiums until the same were piiid, 
 the company should not l)e liable for any sum, with the exception 
 that in cast' this policy is allowed to lapse, after one full annual 
 [tayinent has been made, the insurance will be continued in full for 
 the period which the er|uitabb! value of the i)olicy at the time of 
 lapse would purchase." Payments of premiums were made in 
 cash from the l^Ub April, 18*50, to, but not including i:Uh 
 January. 1874, upon which day the policy lapsed, being tor four 
 years and three-fourths of a yi-ar, which, l»y the company's tables 
 undi'r the equitable and non-forfeiting system extended the jioliey 
 after the lapse for a period beyond tlie 2nd January, 1877, when 
 the plaintiffs wife died. It appeared fluvt on the 28tli January, 
 187;'), the plaintiff" gave defendant's agent a s(»-called promissory 
 note for the four instahnents due in 1874, being up to but not 
 including PUh Jainiary, 187;"), which note was payahle in three 
 
 : 
 
 MullAU V. UfliaiHe Mul. Lifu Ams. Soi., log. B. Ml. g. H. I). 
 
MAKINU OF ODNTKACT, ETC. 
 
 15!> 
 
 months, and providetl tliiit if not paid at maturity with interest at 
 sfven per cent, the policy slioiiM he null and void. It also 
 ajipeared that on the Hth April, 187o, during the currency of the 
 note plaintiff paid, and the company received payntents in cash of 
 the ]»remiums which tell dtie on the 13tli .Tanuary, 1775. In an 
 actioii by the plaintiff to rec()ver the amount of the policy • —Held 
 that he was entitled to recover ; that by the cash paymcut made 
 up to the 13th January, 1874 there was a right to the benefits ot 
 the policy for such extended perioil. that it could not be deemed to 
 be the intention of the i»arties to a!)ridge such rights by the note 
 of tl 28th January, 1875, but that the effect of non-payment 
 thereof was merely to put the parties in the same position as if the 
 note had not been given, j'er Gault J. — To work a forfeitiiro for 
 the non-payment of a promissory note as the one in this case, the 
 company must demand payment of it on tlie day it became due, 
 and, if not paid, declare the policy forfeited or void. Semble, per 
 WilM)n, C J., the comi>any. by receiving the premium in cash for 
 a period sid)se(iuent to tlmt for which the forfeiture was claimed, 
 had waived such forfeiture, though the rece'pt was before the 
 t'orfeiture had accrued.' 
 
 82. Cheque for premium unpaid. My a policy of insurance 
 upon the life of J. N., it was stipulated that if any premium should 
 not be paid when due, the consideration of the contract should be 
 <leemed to have failed, and tiic company released from liability ; 
 l»y ani»ther clause, il" an ovenlue premiunt was received it was to 
 be upon the express condition that the assured was in good health, 
 etc., and if the fact were otherwise, the policy should not be put in 
 force by such receipt. A cheque was given I'or a quarterly pre- 
 mium, with the request to hold it tor a lew days, as there were not 
 then funds, which was received by tiie agent, but the premium 
 receipt was not given u[i. It was afterwards presented l)ut not 
 accepted. On the 21st ()ctol)er t'unds were provided, but it being 
 then after banking hours the i-luMjue was not presented. That 
 night .1. N. was killed. Held, atKrniing thi' decision of the Court 
 below, that the policy laitsed the day after the premium fell due ; 
 that nothing but payment could then revive the policy, and that 
 there was not any evidence of payment, or of anything dispensing 
 with it." 
 
 > WiUtH V. Atlimtie Miit. Life liis. Co.. :t| C. P. Si I'. 1'. I). 
 ■' Neill V. liiioii Miiluul Llfi- Ins, Co., 7 A. H. !7I. 
 
 m 
 
 4'i ■ 
 
 I 
 
 Y. 
 
160 
 
 INSURANCE LAW OP CANADA. 
 
 !l ■ 
 
 m 
 
 s 
 
 V. 
 
 
 83. Aotion on premium note— When inaored must aeoept.— 
 
 An insuretl having given his promissory notes for the premium 
 upon an insurance, refused to pay them upon the grounds whi<di 
 will appear by the statement ot facts which appeared upon an 
 action brought against him by the company upon those notes as 
 follows : The applicant for insurance and tlie company entered into 
 an agreement for the insurance against fire and lightning ot 
 several articles of property. The application for insurance was 
 drawn up by an agent of the company and signed by the applicant ; 
 but thrcagh a mutual mistake of the parties, some of the articles 
 to be insured were omitted. Through a like mistake, the amount 
 of these notes which the applicant gave for the insurance were 
 made sufficient only to pay for the insurance of the articles 
 actually included in the application and not sufficient to pay for 
 the insurance ot all the articles. Afterwards an insurance policy 
 was issued in exact accorilance with the terms of the application, 
 and several weeks thereafter it was tendered to the applicant, who 
 refused to receive the same on the gromid that the articles omitted 
 in the application were omitted from the policy. The sigent ottered 
 to issue a new and separate policy for those omitted articles or to 
 insert them in the policy already issued ; but the applicant refused 
 and the agent retained the policy. The api»licant never demanded 
 or asked tor a return of his notes, or for a recision of the contract. 
 The right of the company after these notes became due to recover 
 niton them was upheld by the Supreme Court ot Kansas. The 
 Court said : " The maker of these notes had the benefit ot the 
 insurance of all his property which he desired to have insured, 
 including the omitted property, for several weeks before the mis- 
 take was discovered and therefore could have recovered for any 
 loss from tire or lightning which might have occurred during 
 those several weeks. And as he never asked to have the contract 
 rescinded, and as it never was in tact rescinded, he really continued 
 to have the benefit of sui'h insurance, and could iiave recovered 
 for any such loss which might have occurred at any time, either 
 Itefore or after the discovery of the mistake. Before any loss 
 occurred he could, by a suit in equity, have had the policy 
 reformed so as to make it include the omitted property ; and after 
 loss, if any had occurred, he could, according to the authorities,' 
 have had the policy reformed, if it needed any reformation, and 
 
 ' 11 Am. & Eng. Enc. of Law 'M(i ; Wood on Fire Ins. S 4711. 
 
MAKINC OF CdNTRACT. BTC. 
 
 Itil 
 
 lor liis loss ill llu' siiiiu- iii-tioii. It follows tli.it tin 
 
 IlilVO IVcOVlTl'd 
 
 notes wt'iH' not uivcn withont considerut 
 
 ton. an 
 
 <1 tluit no f'ailniv of 
 
 roiisu 
 
 U'l-ati 
 
 on oxistt'd in tlu' «'iisi 
 
 84. Note iu payment of premium given to agent. 
 
 in a i-asc 
 
 ! 
 
 vi-rv recently ikvidcd liy ilir Siipmae Conif of C'alifornia tlic 
 (Mistoni of givinj; a noti' in pax iiu'iit of a juv-niinni upon a policy 
 of life insurance was discussi'd. The original action was brought 
 l»y one Jiirncns against the Neu't York lAfe Insarnnce Ciinipau;! to 
 recovtT $1,402 paid as first annual premium upon a polii'v ot' life 
 insurance li»r §25,000. The plain 
 
 tiff 
 
 ainu'd that ho had h>.en 
 
 induced to receive the iiolicy ami pay the first premium l»y misrep- 
 resentations t)f a solicitor of the company. The alleged faise 
 representations were examined into, but the <lecision turned on tlie 
 point as to wln-ther a note given to an agen* in payment of a 
 premium constitute*! a breach of the stipulation that tlii' policy to 
 be issued slii»uld not be in force until the premium was actually 
 jiaid to the agent of the company and by him acce[>ted. In this 
 ease the insured gave his note to the caiivussing 8olieitr)r, by whom 
 it was discounted, and the proceeds paid over to the companys 
 ge!ieral agent, by whom the policy was handed over to the maker 
 of the note. It was pleaded that the contract was never in force, 
 as the promissory note really aimiunted to nothing more than an 
 I'Xtension of time for paying the premium. un<l the policy expressly 
 stated it would not be recognized as being in tbrce until the 
 jiremium was paid. The Court decline<l to ac;cept this view. The 
 <lecision in the case of (TriiHth vs. Insuraiu'e Co. was (pioted to this 
 effect: "The issuance of a noti' was in effect, so far as defendant 
 was concerned, a payment of the premium to the agents, who held 
 the m)te in lieu of so nuich money with which they were charge- 
 able. It was, as to defendant, a payment of the premium to the 
 agents, and not an extension of tlu' time of payment."" In case 
 under notice, the actual agent of the I'ompany <lid not know of 
 the note when the [lolicy was issue(l. and. as the canvassing solicitor 
 Iiatl no authority to take a note, he was answeralile to the company 
 tor so nnieh cash. ,\s\here ha<l Ik'cii an unconditional delivery of 
 the policy, the Suiireme Court of California held that this con- 
 Ktituted a waivi'r of the express coiulition in tlu' policy that the 
 company should not be liable until the i)remium is paid." 
 
 I IMi'iTi" V. Iloiiu' Ins. Co. of New York (l.sill) 4."i ICiiii. ."II. 
 - ItiMH'HiH'i' 1111(1 l-'iiiaiici' t'liroiiitli', Miiiili I, is'.iT. 
 
 n 
 
 !! i A 
 
w 
 
 162 
 
 INSniANCE LAW OF CANADA. 
 
 
 II 
 
 
 85. Cases where premium is not due and must be returned.- - 
 
 111 tho following cases the i>remium is not due, and, if it has been 
 paid, it may be recovered back, the contract l)eing void : 
 
 1. When tlie risk insured against does not occur, for any 
 causes, even those arising, without fraud, from the act of the 
 insured. 
 
 2 Wlieii tliere is a want of insurable interest, or any other 
 lause of nullity without fraud on the part of the insured. The 
 insurer in tiicse cases is entitled to one-lialf per cent, on the sum 
 insured for his iiideninifieiition unless the policy is illegal, or 
 renderoil null by fraud, misrepresentation or concealment on his 
 l>art. It tho policy be illegal, there is ni> right of action for the 
 premium and none to recover it bacdv if it have been paid.' 
 
 This applies when the risk occurs for part only of the value 
 insured for the non-payment or return of a proportional part of 
 the premium, according to circumstances and the discretion of the 
 court. ■ The above applies in part to marine insurance only. 
 
 86. Life insurance Action to recover premiums -Policy 
 taken out by creditor in excess of amount due to him— Insured 
 acted in good faith Premium paid in excess of liability must 
 be returned. The judgment below dismissed the action, wliich 
 
 was to obtain a return of premiums paid It appeared that L. had 
 ii\sured the life of a man who owed him a sum ot money, but 
 iiistead of limiting the amount of insura)ice to what was owed him, 
 he insured for a large amount, and paid considerable sums for 
 [iremiums. He found that he could not keep this up, and besides, 
 tl'.at the insurance would have to be limited to the amount of tlu' 
 debt. There were pour parlers ; the company ottered to recluce 
 the insurance but declined to pay back the amount of premium 
 paid. The company pleaded tliat it insured tlie man for the 
 $10,000 and that the plaintiti must suffer the loss ot the premiums, 
 whether it was his fault or an error. The Code declared that a 
 person could not effect an insurance for more than the amount of 
 his interest. IleM, that there was no fraud on the part of the 
 insured, but good faith, the i>laintitt' was entitle<l to succt-ed in his 
 
 m 
 
 I U.C.L.C, 2501, anil) ; Porter's liawii of Ins., 7 ; May, p. 5 S "> ; 'J: Va, h.t.ii. :rj. W, 
 )). it;{, a. tl, p. m ; Poth. Ass. 17(1, ISd, 1S2 ; 1 Piiii. 12; 2 lb. c. lt(, s. 1, p. 1S7 ; 2 Ain. 
 c. 11, 12(1!), S 121; I Ph. 5;):t, Mi; ■> lb. :i5:l ; Marsh, till, m>. Oii;t : 1 Ahiu. n. 17l» ; 
 Piir. 11. S72; 1 Hon. Pat. 1, :{, 111 ; 1 Arn. :J4!t; C. Co. :illt. 
 
 "C.C.L.C. 2r)()2, Poth. Ass. 1S:{ ; C. 2.')01. 
 
 See iilso siiprn S lit. 
 
MAKING OF COSTKACT, ETC. 
 
 168 
 
 Hftioii for till' re»;overv of what Kf liail overpaid. Tlio couft 
 rt'torrt'd to Boulay, Paty and Potliier. It was not proved tlnit tlie 
 company knew tliat Lapierre's claim was only §tJOO, but it received 
 $700 in premiums without Iteing liaijle tor the amount insureil, as 
 it could easily have pleaded that it was not liable for the excess 
 over the $IjO0. Judgment reversed, and action maintained.' 
 
 87. When applioant may recover the premium paid. 
 
 Where in the application it was atrreed "that this application shall 
 form a part of the contract of insurance, and that, if there l)e in any 
 of the answers herein made any untrue or evasive statements, or 
 any misrepresentations or concealment ot tacts, tlu'ii any policy 
 tjranted upon this application shall he null and void," and the 
 policy iirovided that "this i>olicy is issued ami ai-ccpted upon the 
 following express conditions and agreements; That the answi-rs, 
 statements, representations, and declarations contained in, or 
 indorsed upon, this application for this insurance — which api)lieation 
 is hereby referred to, and made part of this contract, are warranted 
 by the insured to be true in all respects, and that if this [tolicy has 
 been obtained by or through any fraud, misrepresentation or 
 concealment, that this policy sluUl be ai)solutely null and void." 
 It appeared that the answers made to the questions asked the 
 applicant where made at the suggestion ot the insurer's agent, and 
 without a proper knowledge of thi'ir etiect, and ho paid the 
 premium for the insurance. 
 
 When the insured became aware of tlie true state of the facts, 
 he considering the policy void ah iitilio l)rought ai'tion to recover 
 the premium which he had paid. The I'ompany contended that the 
 provision as to the effect of warranties stated above was for their 
 benetit. that it was optional with them to caticcl the policy ; that 
 it took etiect ami was of force until cancelled, and that the 
 jiremium was not, under the terms of contract recoverable from 
 them. The trial court found as conclusions of fact that "several of 
 tlie answers to ([Uostiona contained in the application of the 
 plaintirt" on which the policy ot insurance was issued were 
 erroneously answered, and the court further tbund that the untruth 
 of several of said answers was upon ([uestions material to the risk, 
 and that, by the terms of said policy and the application which 
 
 'I/ipii-rn' iiiiil li')iiiloi> iS: I- iiu i^liiiv Life lii». Co , S. ('. It,, lS7 
 
 for Sf! i)ii'iii. 
 
 Sec also iiuicx 
 
 >' I' 
 
 
 
 
 I 
 
 ['■ Hi 
 
 ! ■ 
 
 -^i 
 
f 
 
 164 
 
 INSUIIAXCE LAW OF CANADA. 
 
 m^ 
 
 n 
 
 bei-anio uiul was ii jtart theivof, tlio mitnitli of said answers con- 
 rttitutc'd hrcaclii's t)t warranties in respoi-t tlKToof contained in said 
 jioHcv, and that liy its terms the breaeli otsaid warranties was to 
 inako said pr)liey nnll and void." 
 
 And the court found as a conclusion ot law tliat the policy ''is 
 wholly void and of no ettect whatever, and was so troni the moment 
 it was issued,'' lu addition the court found " tliat all of tliu said 
 (piestions so erroneously answered were answered by the plaintiff 
 under an innocent misa[>prehension of the purport of the questions 
 and the answers that should have been made thereto, and without 
 any intent to perpetrate a fraud of any kind upoji the insurer." 
 There was a judgment therefore rendered in favor of the plaintiti 
 for tlie premium he had paid on this policy. The Supreme Court 
 of Ohio iield that on this policy, on the facts as found, no risk 
 ever attached, and atttrmed the judgment of tlie court below.' 
 
 88. Error as to premium. Whe'-e an assurance on the life of 
 a person is made for the sura of $4,000, and in calculating the 
 annual premium of that assurance the agent, through error of cal- 
 culation, represents to the assured that the annual premium will 
 be $168.56, according to the ordinary rates of the company, and 
 the assured accepts and consents to pay that premium, for which 
 he gives notes for the Hrst yar, the company has no right there- 
 after to comiiel the assured to pay the premiums it ordinarily 
 charges, even if it be [troved that the assured knew the ordinary 
 rates for a sum of $1,000, and i-onsent had been obtained through 
 that mutual error; but the comjtany in that case would oidy have 
 the right to demand the annulment of the i-ontract,- 
 
 89. Life insurance -Privity of contract— Difference in pre^ 
 miiun— Premium notes.- Ai't ion for $225, amount of a promissory 
 note. Plea, no consideration, and that the plainlilF had represented 
 to defendant that he was an agent of the ^Ktmi Life Insurance 
 Company of TInrtford, and as sudi induced [tlaintitt to take o\ita 
 policy of insurance on his life for $5,000, in consideration of the 
 annual paymont to said conqiany of $225, for which sum said note 
 was made ; that said note was not given to defendatit jtersomilly, 
 but to the comi»any, and when the policy issued it was upon con- 
 dition of defendant's paying the company an annual premium of 
 
 > Ins. Co. V. I'yif, (lHS<it, 11 Ohio St., li». 
 
 - ChristniaH & Borduas, l.'i 1«. L. Ml, S. f. 1SS.">. 
 
MAKiyti OK rONTRACT, KTO. 
 
 165 
 
 S-)lo : tlu' «li'tiMi(liint rctusetl to accept .said policy when, tlu' rtnmc 
 was ottered to him and returned it to the coini»aiiy, wlio accepted 
 and still lield the said jmlicy; that no privity ot" contract ri'speet- 
 ini; th(i note ever existed between ]»laintitt and det'eiKhint Held 
 that there was privity of contract between the assent and the nniker 
 of the note, and the note Iteini; iTiven tor j^ood and valitl consider- 
 ation, the aa^ent could maintain an action upon it.' 
 
 90. Extra premium Construotion of.- In a recent decision, 
 G. IT. Matthews V, Willinm irenrt/, of the Court ot Review at 
 Montreal, March 81st. 1*^0(5, the construotion of the clause exsicting 
 extra premium in consecpuMice of the special business or w.nks 
 carried »ni in leased premises by the lessee was discussed at h'nglh. 
 Acting Chief .lustice Tait remarked uiion it as follows: 
 
 " This case calls tor the interpretation ot a clause rc;_.irding- 
 extra premium of insurance in a lease from tlu- i»laintitt to th<' 
 <lefenda!it, of dati- tl. > 21st ilay of .Fuly, 1898, for a term of ten 
 years, commencing on the 1st May, 1804, ot certain lots of land 
 then'in de^ •, iited. with a factory of bri<'k, on stone foundation, not 
 then built, hut which the lessor obliged himself to construct on 
 certain of the lots, according to certain [)lans and spi'citications 
 approved of by the lessees, and t(» ha\'c the same completed, if 
 possible, ]>y tlie 1st Xovember. Amongst other considerations, 
 defendants agrct'd Ijy clause S as follows : 'To pay all extra pri'- 
 mium of insurance that the company, with which the premises 
 may be insured, shall exact in conse([Uencc of tlu' business or 
 works carried on therein bv the Icssei's. • .\nv disiuite arising 
 outot tliis clause to be derided by the l>ourd of Fire [Tn<lerwriters 
 in this city, the bull Tnig. it being understood, being built as a 
 factory." The defendant took }>ossessio?i of the pn-miscs on the 1st 
 of May. 1804. and in Xovembcr of that ■•car. pltiintiif brought the 
 l>rescnt ai-tioji, wherein he stated that he nad jiaid the sum of .$180 
 for extra premium of insuranee. cxaeted ovtM- and above the pre- 
 mium dennmded for th.e insurance of said building, in conseipience 
 of the business and works curried on in the priMuiscs by ilclendant, 
 for flic term ot'one year from the 1st day of May, 1804, ami he pray- 
 ed judgment for that amount. The defendant pleadetl (1) that the 
 insurance company with whicli the leased premises were insured 
 luid not exacted any premium of insurance from the plaintiff 
 
 ir 
 
 ■h 
 
 ■J! 
 
 \: I 
 
 it ' ! 
 
 ji' 
 
 [M: 
 
 Alfxiuidor & Tivylor, A') L. C. J. 252, S. C. K., ISSt). 
 
K 
 
 f ' . 
 
 166 
 
 INSURANCE LAW OF CANADA. 
 
 wi*^liin the meaning ot' said lease, and (2) that the premises were 
 specially ereeted tor the use of defendant, who is and was, when 
 said lease was made, a laundryman an<l inanufaeturer, and said 
 premises were intended to ])e used as a factory tor the purpose of 
 defendant's said business, and that they have l)een so used ; and 
 that under the custom in the city of I.fontreal, in such cases, and 
 the true interpretation of said lease, 'he defendant is not lialile, as 
 alleged in plaintiff's declaration 
 
 "The plaintiff answered the second plea l)y alleging that the 
 amount sued for was paid by him in accordance with the terms of 
 the lease, and rei)resented the proportion of the total insurance 
 payable l)y plaintiff, whii-h was exacted by the insurance companies 
 with whom plaintiff's builtling was insured, in consequence of the 
 business being carried on by defendant. 
 
 "The parties went to proof, and it was established that the 
 leased [»remises were iut^ured in the following insurance companies, 
 namely, Guardian, $5,000; I'ho'nix, §5,000 ; Liverjiool, Loiulon & 
 Globe, §2,500, and Xorthern, §2,500. making in all §15,000, at 
 the actual rate of §1.72§ per §100. Gf tliis the plaintiff claims he 
 is only entitled to pay 52Ac. per §100, and that the balance, §1.20 
 per §100, is t'or the detcndant to pay, according to the true mean- 
 ing of the lease. 
 
 "It is [)roved that, it the building was vacant, or if it was 
 occupied as a wholesale dry goods, or hardware store, or i'or any 
 ordimu-y wholesale business, the rate woiild be 52|i'. per §100. 
 Of course, it does not follow from this that every comjiany would 
 be willing to insure the premises if the_\ were vacant, at that rate, 
 but, nevertheless, that a}i[»ears to be the (U'dinary ratt' that would 
 be demanded if the building was vaeant, and if it was occupied as 
 a whoU'Siile store, the rate woulil not be increased. This serves to 
 show that certain businesses could be carried on in the building 
 wliich wouh! not entail the payment of extra insurance. 
 
 "Mr. Ilcalon, Insurance \hinagcr, states that the §1.72J is 
 made up in thi^ way : 
 
 Basis lor Standard liauii'lry, §1.12^ per §100 »)f insurance. 
 
 Kxtra for height of building. 10c. per §100 of insurance. 
 
 Kxtra for position ot' stairs, 10c. per §100 of insurance. 
 
 Kxtra (or position of boilers, 15c. per §100 of insurance. 
 
 Kxtra for having no night-watcbman or watch clock, 10c. per 
 §100 of insurani'c. 
 
MAKINii nV CDNTRACT, KTC. 
 
 16< 
 
 1. 
 
 Extra for ailditinnal otviijiiiiicv, loe. piT !$10(> ot' itisin-ancc. 
 
 Makiiiu; tUv total rati- diaririMl S1.72J pi-r i^lOO ot' iiisiiraiico. 
 
 •' Mr. Iladri!!, tSi'i-rotarv ot tin; Fire Uiulcrwi-ittTs' Assotiatioti, 
 a witness tor <K'ti'ii(laiit, was aski'(l to state tin- (.-xtru jirt'iiiiiiii- of 
 iiisiiraiu'e, in roiisi'i[iU'iu'»' of the Inisiiiess carrii'd on. it l»eing 
 uiidi'rstooil that the hnildinu; was Imilt t'or a factory, lie replied 
 that it was a ditKeull ijiiestioii to answer, for the reason that there 
 are several elasses i)t factories, that tiie host rale on most of these 
 factories is .^1.021. lie says a great niuiil)er of them are winit are 
 known as standard I'actories, and these seenre this rate of §1.02J 
 per !$lOil. lie tixes the hasis rate for a standai'd laundry at §1.1 2^, 
 and for a standard faetory at § 1. 02J, makintr :i difference of lOe. 
 ju'i- $100. Mr. Evans, while admitting that these are the busirt 
 rates, states that the factory business rate varieri, that there are 100 
 diil'erent «lasses in tiie tariff. 
 
 "Several witnesses say there is no factory basis. 
 
 " The plaintirt' t'ontends that everything is to be considered 
 'extra jiremiuni " over and above what is recjuin-il to cover the 
 building as a vacant building, or when used as a wliolesulc store, 
 or. in fact, any business which does not involve extra premium, 
 ' in consequence of the itusiness or works carried on.' For thin 
 reason he [tretends he is entitUnl to start from the basis ol ji 
 wholesali store rate, and charge all over that rate to defendant. 
 
 "The defendant contends tirst, tlnit he lias nothing to jiay, 
 liecause plaintitf knew that he was going to carry on a steam 
 laundry, aiul erected a building suitable for that business, and 
 second, that if he has anything to pay, it is oidy the ililK'renco 
 botween the rate for a standard factory and that for a stan(hird 
 steam laundry, namely, 10 cents pei- ^IdO. 
 
 "The ditHculty in interpreting the clause arises in a great 
 measure from the ni'glect of the [larties to state, in a clear way, 
 from what basis they proposed to slart in ascertaining winil is to 
 bo regarded as "extra premium." Is it trom the raU' for a vacant 
 building, or Wn' a wholesale store, or tor a lactory, or what '.' 
 
 " There is nothing said in the K-ase which could lead to the 
 conclusion that a wholesale store rate was to be a starting point, 
 The building was not to be usi'd for that purpose. On the con- 
 trary, the liinginigi' ot the lease, outside entirely of the ilause in 
 t|UOHtion, shows that tin' building was to lie built and leased a.s a 
 lactorv lor delendant"s use, t'or ten veais, ai anv rate. 
 
 v- I' 
 
 
168 
 
 INsrUANCE I-AW OF CANADA. 
 
 jiilHI 
 
 ifiifii 
 
 m 
 
 \t 
 
 IS (Icscn 
 
 hc'.l 
 
 a tai'torv (in a stone I'oundation.' The 
 
 baseip.ent of the ' said tketorv ' is to ho ot' stone, etc. ; the lessee 
 agrees to assume the resiionsihility tor any annoyanee or damage 
 which may he caused hy tlie smoke coming from th.e chimney ot 
 'said factory,' ami is to comply in all respects with the require- 
 ments of the Factory Act, except Art. 3,025 of the R. S. of Q. 
 
 '• All this shows clearly enough that plaintiif built and leased 
 tliis huilding as a factory, and the parties having made this point 
 so clear hy the terms of the lease, apart from tlu! clause in ques- 
 tion, what was the object in stating in that clause, ' Any dispute 
 arising out of this clause to be decided Ity the Boai'd of Fire 
 Underwriters in this city, the building, it being understood, being 
 built as a factory." unless the fact of the building having been 
 built as a factory for defendant's use was to be taken into 
 consideration by the l?oard in determining the amount of 
 extra premium to be paid by defendant. Was it not intended 
 as an instruction to the Board that they were to start from 
 the basis ot' the l)uilding, used as a factory, in determining 
 till' extra insurance? Wliat else could have been the object 
 in putting in these words as to the building being built as a 
 fact<U'y ? It eoulil not have lieeii inten<led to refer merely to the 
 charaetev ,f the buildiny'. because it is deseribi'd, as alreadv shown, 
 
 over 
 Find 
 
 mil 
 
 liver au'ani ;n otiier u 
 
 ;irts ot' the leasi', a?- 
 
 a tactorv, 
 
 nigliieiu her" in eoiiiieetMH witii the ejause. we must n'lve 
 
 tiiem -nnie ineaiiu 
 
 It 
 
 •ieems III Me thai the intention nf tiu' parties was that, if 
 
 the deti'iidant carried nn am' luisint 
 
 ni 
 
 th 
 
 iiremises. w 
 
 hich 
 
 involved )iayiiiein of extra premium, over the premiiim payable 
 
 for a liuildiiiu' ciceupiei! and used as a I'actorv 
 
 iIh" d 
 h 
 
 elcni 
 
 lant 
 
 would 
 
 iiav" 1(1 pay tic extr;i iireniium exacted lor sucli husniess. 
 
 •■'i'akiiig i his view, and giving plaintiff the benelit of the liest 
 rate, that is. the rate of a standard iiietory, namely §1.()'J^. I think 
 
 10 cents per i^lOO, ditfcreiice between 
 
 lefcndant has to I'et'iiiid 
 
 liim 
 
 such basis I'ate 
 laundi'v. 
 
 IIKl 
 
 .^l.lii.l per #101). basis for a slandard steam 
 
 Tl 
 
 len 
 
 as to the ot her eharii'cs. < 
 
 if which tin 
 
 72.', is made 
 
 up, I thiidv tliose which dcpeml upon the cliaracter ot' tin' building, 
 and which ai'c applicable to all factories, although the precise 
 ariioiiiit iiiay vary, according to the eonstrui'tion of the building, 
 should lie borne by the plaintiil, as proprietor. 
 
MAKlNii 111'' CONTHACT, ETC. 
 
 169 
 
 "•'• Thus t lie cluirii-e of 10 i-i'iits tor lioisrlif and 10 ci'iits \'<>\' 
 stairs, i\'sultii)<>: diri'i'tlv troin tlio coiistruotioii of tlic Ituildiiiijj. 
 which arc applitalilc to cvorv factory simihirly coiistruotod, should 
 be })orno by plaiutitt'. The chariot' for no iiiirht watcliniaii or 
 watch-dock, rosultiui; from defendant's (uvii neglect to provide 
 oi\e or the other, should be paid by him. The eharu'e for atldi- 
 tional occupancy, which, in tiie al)sen<'e of proof to tlie contrary, 
 we must presujne to rcstdt from defendant sul>-lettinif a part ot 
 the premises, must also be borne by him. .\s to the boih'r, 
 altliouu;h it may. perhaps, l»e said that one is necessary in every 
 factory, yet the ])roof shows that this particular boiler l)elons;s to 
 defendant, tliat he put it insiib- the Ituildiiiir, and the charfre is 
 made on account of the peculiar position in which it is placed, that 
 is to say, because it is not jdaced up in a staiuhird position. F tlierc- 
 fore think deft'iidant should also liear this charife. 
 
 '■ To conclude. 1 tliink that defemlant should retund the 
 followitiii' amounts inchuU'd in the !?1.72L which plaintitl paiil. 
 tnimi'ly : 
 
 lOc. nifterence Itetwcen the two basis rates 
 
 alrea<ly nu^ntioned !* b") 00 
 
 lOc. Xo niu'ht watchman or watch clock b") 00 
 
 15e. Additional occupancy '22 ')0 
 
 i:)c. Position of boiler-* ±2 .tO 
 
 Total * T/i 00 
 
 " T would, therelorc. reverse the jnilii-ment by reduciiii'' the 
 condemnation to seventy-five dollars (.^To.llO). with <'osts of nu 
 action tie- that nnioiint in the Superior Court against defemhiiit, 
 and with cos<s of review against plaintKl." 
 
 .Iiidu'iiiciit rmersed. Tasiherean. .1.. <lissentinii'. 
 
 01. Extra premium to bo paid by lessoo. In a deed of Ica-^e 
 there was a clause which stipulated '"that the said lessee should 
 ]iay all extra premiums ot insurance thai the •ompaiiy by which 
 the pri'tuises now leased may he insured shall "xaet in conse(pienct> 
 ol' the works or Imsincss done oi- carrii-il nn therein by tln' said 
 les.-ee,"' and the Ics-^or brought action tor seven shillings and six 
 pi'iice per cent which they had been obliged to pay to the insurance 
 I'ompany. and the detendant plcatled that the pri'miuni charged 
 was the (M'dinary premium and lu) part thereof was I'xtra premium 
 within the meaniui!: of the said clause. Held on th<> facts, that de- 
 
if 
 
 170 
 
 INSURANCE LAW OF CANADA. 
 
 
 ill 
 
 ! 
 
 if 
 
 t'cMulaiit's protcnsioDrt wero iiiitoiuuloil, and the action was maiii- 
 taiiRMl.' 
 
 92. Place of contract.— In tlio case of Clark v, Uniaii Fire 
 liisiii-iiiioi' ('iiiiipitiii/- it was liolil that policies siijiu'il ami scaled in 
 Ontario and sent to an an'ont in New York wlio tilled tlieni np and 
 issued theiu there, were Ontario eontraets. 
 
 The United States decisions are, however, to the eft'ect that 
 the place td" contract is the place of acceptance.' 
 
 93. Place of payment.— In the United States it is said that 
 in the ahsencc of special a!:;reenient the insured must seek out the 
 insurer to pay.' 
 
 94. Notice of payment of premium. A mere usa;j;e ot irivint? 
 notice of the day i f jiayineut of pretnium is insutftcient as a waiver 
 of prompt payment in default of such notice.' 
 
 95. Renewals. A renewal is generally held to he a new con- 
 tract" on the ti'rms and conditions stated in the policy exi»ired. 
 The old application, in the al>sence of evidence to the contrary, 
 serves as the hasis ot' the new contract and as it" nuide at the date 
 of the renewal.' The rulings on parol agreements for original 
 insurance would seem to apply to a parol agreement for renewal. 
 
 95a. Renewal Stipulation : lost or not lost, fn the New 
 
 Urunswii'k case of (titfnrd v. Q>ice» riisunince I'ompani/," the plain- 
 tirt' insured against tire in tiie L. & L. Co. trom 2n<l Octoher, 18G5, 
 to 2ntl Octoher, 180(!. Before the term expired he received a 
 notice from their suh-agent that the insurers W()uld renew, and 
 accordingly he [laid the premium to him on their account. The 
 general agent of the comj)any deilined to renew and paid the pre- 
 mium to another company, the defendants, who issued a policy 
 dated U»th Octoher, 1S()({, hut insuring from 2nd Octoher, 1860, to 
 2nd Octoher, 18(J7. The premises were destroyed hy tire on the 
 
 ' I'latt V. Ki'iiry it III.. 7 I-. C. .1. S(l, \M->. 
 
 • (lOfil. Hop, tS.i. '■' Sec index I'oi' SS in/rtt. 
 
 ' Konyou v. Kiii^lits Tfliiip. .\ss., \tl N. Y. 217, ISiti). 
 
 ''Tlu);ii|>sou V. Iviiicki-rlxti'lu-r Co., UH \\ S. 2rc', 1S-<1 ; Smitli v. .Nil'. Co.. HIH I'u. 
 St. 177, l.s,s;{, init si'o iintlni Union Central Co, v, I'otlker, M Ohio St, ■l.">lt, 1M7H ; 
 Ooi'di'i'lv,. V, .Metro. Co., IIO Mo, .Vpp. IKH, ISs.>^. 
 
 '' .S'e Index for ii hit'ni. 
 
 ■ .Miirlin V. Home Ins. C.)., I'd C. C. (C. I'.i 117: May. p. Ilia. 
 
 '' 1 llanna>- (.New lirnnH\vl(')k, IMl'. 
 
MAKING OK CONTRACT, ETC. 
 
 171 
 
 13th October before tlie policy was issued ; but the phiiiititt did not 
 know that he was insured by the detenchmts until ho received the 
 policy from the sub-agent, who also acted for the defendants. It 
 was lield that the transaction amounted to a reinsurance, and that 
 the defendants insured the property " lost or not lost " — in other 
 words, "burnt or not burnt" — from the 2nd October, 180G, to 2nd 
 October, 18G7. 
 
 96. Accident insurance tickets. The tickets issued in some 
 branches of accident insurance, sold and delivered by an agent and 
 paid for, give tbe owner a valid claim against the company, suliject 
 to the conditions on the lioket.' 
 
 • Brown v. Uy. Fuss. Ass. Co., 4.t Mo. 221. As to decisions on agent's iiutliority, 
 warriinties and usnKe, etc., reported in tliis chapter, .see also inde-x for S§ infra. 
 
 'i 
 
m 
 
 s 
 
 H 
 
 CHAPTER V 
 
 INSrUANCK rNDKH I.VTKIM.M UHCKIl' l'. 
 
 97. OKXKHAI. ItKMAHKS ON IXTKUIM 
 KKCIMPTS. 
 
 iK Ukiixitiox ok an intkuim kk- 
 
 CKIl'T. 
 
 iC.'. IiITKiATlOX t()Nli:il\IN(i IXTKHIM 
 RKti:il'IS. 
 
 10(). IxiintiM ni:(i;ii'i' xor kstais- 
 lishix(i i'aymkxt ok i'ukmium. 
 
 101, Whi;n mkhk i.apsm ok intekim 
 
 CONTKAl T noKS NOT TKHMINATK IX- 
 
 ssruAMi:. 
 
 102. AliKXr NKIil.Kl TINIi TO Kolt. 
 AVAKI) AI'I'I.IIATION TO {'OMl'ANY — 
 
 R?:ri;ATKn issri-; ok intkhim iti;* kii't 
 
 — MKHK I.AI'Si: NOT VOIDIXO IXsrifAXCK 
 — IXTIMAI'IOX TO TKH.MTXATK lilSK 
 
 Mrsr 111-: oivkn ixtkium DKcKifi' 
 
 HINDS liOTII I'AHTIKS. 
 
 lo:t. Hkikikp koh shout ikum in- 
 sriiANcK— xt) I'oi.icv issuKi)~ixsrni:i) 
 
 not liOl'M) I!Y A COXDnlOX OK 
 
 WHICH UK WAS icxohaxt. 
 
 lot. \V|||;N AdKN'i's HKlKII'T IS NOT 
 niXDINi: ON INsrilKI! AKTKIi X<'TIlK 
 OK HK.IIICTIOX OK AIM'MIATION. 
 
 10."i. HiarsAi. to skin I'liiiMir.M 
 
 NOTi: IN A MirCAl, lOMKANY. 
 
 llX!. IX'l'KHIM HKlKII'l' MY Ml'TfAI, 
 I'OMI'ANY — NO POLICY ISSI'KI), IITT 
 PAYMKNT OK I'liKMIKM DKM A N l>i;l) 
 ANII IlKCKINi;!)— ONI'. INS. ACT AP- 
 
 pi.icahm:- \VAi\Kii oi' liKiiir ro 
 
 TANCKI., 
 
 107. ()N|-. ins. A(T API'I.K AIll.K— 
 I'liOVlSION HKIiAUDlXO TKHM IN A'.'ION 
 OK CON'IUACI'. 
 
 Ids. .\(IKNT ACTINO WITHIN HIS 
 I'OWKIIS— NOIICK OK TliHMINAI'ION Hi:- 
 C'EIVKI) AKTKII Kllli: AllSOI.UTK HK- 
 
 ITHIATION OK I.IAIIII.I I'Y PKHMITS OF 
 IM.MKDIATI-: ACTION. 
 
 KKt. CoxnrrioNs ok poi.ky in- 
 ci.rnixii VAHiAiioxs appi.yixo 
 
 OriMXO TKUM OF IXTKKIM t ONI'KACT. 
 
 110. IXTKICIM HKCKIPT NOI' A POI.K Y 
 WITHIN THK MKANINd OF OXl'. IXS. 
 ACT— I DNDIIIONS SHori.I) HK ItKAl) 
 IXTO IT. 
 
 111. I'ltloH INsrilANCK— API'I.K ANT 
 NOT AWAHi; OK 1:N DoHSK.MKNI' ON AP- 
 PI.ICAION AS To STKA.M I'OWKU- 
 ACKXl's AITlKlln lY — l)ISITX< TION KK- 
 lUKKN THK IKlnis " \ OI HA Hl.i:" A NO 
 " YOID." 
 
 112. KXl.AHIiKMliN r AND YAIIIA riOXS 
 OK TKItMS OK iNTl:HI.M c ( )\l I! ACl' IN 
 (JCKIIKI'. ONIAllIo, MANlllllSA AND 
 KlnilSII COI.l-MIUA. 
 
 li;i.— I'ONCKAI.MIINT OF PHKYIOIS 
 HKKKSAl. -NO'ITCK oK CA NCKI.I. AIION 
 lli;cKlYi;i) AITKH KIIIK. 
 
 111. Ini'kuim hi:ci:ipt sni.iKcr ro 
 
 I'SPAI, CONDII'IONS OK POLICY. 
 
 ll."». Company kntitlkd io ikiimi- 
 
 XATK IXSrilANCI-; HKFiniK KXPIHAIIOX 
 OK IXTKHIM COXTKAI l'. 
 
 110. No A( TCAL |ii:l.l\ l:i(Y, I'OI.K Y 
 
 iii:iNii itKTAiNi:i) r.Y aoknt. 
 
 117. Inii.him hk<i.ipts opi.haii: in- 
 sfUAX( i:s, srii.ii:ci' lo [mi: (Hiihnahy 
 iLHMs ity iiiK company's polktks. 
 
 IIH. Hkckxt ami;hii an hkcisioxm 
 
 ox INI'KUIM (ONIIt V( IS -IHNHIXC SLIP 
 
 IIKiiri' OK I'KK.MINATION ACCOKHINO 
 
 TO I'm; I'SKAL llOltMS OK THK CO.M- 
 
 pany's poi.icii;s MH(M<i:ii kkfkctixh 
 iNstMiANi i: IS iHi: a(ii:ni' ok thk in- 
 
 SKHKl) and NOI'K'K ok 1 ANCKI.I.ATIOX 
 
 may hk civkn to him. 
 
 97. General remarks on interim receipts. Tntcriin rt'coipts 
 tor ttiv iiisumiu'o, art the nanu' implii's. art' intoixltMl to servo teiii- 
 |i(irarv purposes only; they are usually limited to a tefiii suiHcieiit 
 
INSURANCE UNDER INTERIM RECEII'T. 
 
 17;? 
 
 to eiialtk' the (.•niinniiiy to (lociik- as to the awoptaiii-o of tho ai)i)li- 
 t-atioii or otliorwisi', and to iiri'iiarc tlu' polirv. Tlioy aro issui'tl in 
 tlie interest of tho iiif^urotl as a written evidence that he is held 
 ^•overod iieiidinif tlie delivery of the poliev, nnless he is previonsiy 
 notified by tlie i'onij>aiiy of their refusal to undertake the risk, 
 or the receipt stipulates that such preliminary insurance expires at 
 the end of the period named therein without further notice. 
 
 They are interim contracts, legally liinding on hoth parties, 
 although not [lolicies within the meaning of that term in the 
 Ontario Insurance Act, ami when they are nnnle subject to the 
 conditions of policy, according to the usual practice, such con- 
 ditions ought to be read into them, as far as they nniy lawfully bi' 
 nuule a part ot'the policy.' 
 
 98. Griswold's definition of an interim receipt. — An 
 
 interim receipt is a bimling receipt for money paid as [ircmium 
 upon an insurance, provisionally agreed upon with an agent not 
 authorized to issue policies, but subject to the approval of the 
 company; such approval or objection to be notitied to the insuri'd 
 within a certain number of days luinied, unless sooner revoki'd by 
 the company and the unearned portion of the premium returned. 
 If no res})onse is made by the company, the insurance expires with 
 tlie days nametl.- 
 
 99. Litigration concerning interim receipts. — Interim re- 
 ceijits have been very rarely the subjects of action in England. In 
 Canada we have had a considerable amount of litigation conceiii- 
 ing them. 
 
 100. Interim receipt not establishing payment of premium- 
 
 An insurance by simi)le receiiit tor the premium is K'gal and bind- 
 ing without the issue of a [tolicy.' But, iu an action I'or an 
 insurance premium, to which jiayment was pleaded, it was held 
 that the form kuitwn as an interim r(.'cei[it did not establish pay- 
 ment, the receijit not stating that the luvmium was paid.' 
 
 101. When mere lapse of interim contract does not terminate 
 insurance. Where the del'endants granted the plaiiitiH'an interim 
 receipt contaiiung the tbllowing conditi(»ns •■ siUtject to the 
 
 I Sfi' infrii f! 110, l)ut sec iiI«o iiifrii ii liHl. - (Jriswold, 11. 
 
 I tCCoiinor v. Iinpoiial Ins. Co., II I-. (". J. lilii. 
 
 ♦I'anadliin Fire iiikI Miiriiu' Itis. Co., v. Ki-rouiick, 2 L. X,, '212, 
 
 
 
liilil 
 
 174 
 
 INSURANCE LAW OF CANADA. 
 
 " approval of the directors which will be signiticd h_v the i^suc of a 
 
 " policy within thirty days from date notice of rejection of risk 
 
 " received at the post oftiee ofapplieant as given in aj>plication, 
 " cancels this receipt and insurance if not otlierwise conveyed," it 
 was hekl : That the mere lapse of thirty days without the issuing 
 of any policy did not put an en<l to the insurance eitected under 
 the receipt.' 
 
 102. Agent negrleoting to for«vard application to company 
 —Repeated issue of interim receipt Mere lapse not voiding: 
 insurance -Intimation to terminate risk must be given Interim 
 receipt binds both parties.-- In the Ontario case of Hawke v. 
 Niagara District Mat. Fire Insitraiife Co.' the comiiany was 
 held to l)e liable under the following tacts : — Plaintitt a[>p]ied to 
 the agents of the defendants to effect an insuninee on certain 
 buildings. The agent accepted the risk, and gave to the plaintifl 
 the usual interim receipt, which stated " the sai<l party and pro- 
 perty to be considered insured until otherwise notified eitlier by 
 notice mailed from the head otHce, or l)v mail to the insurer's 
 address within one month from the date hereof, when, if declined, 
 this receiitt shall becnnie void and be surrendered. X.B. Should 
 applicant not receive a policy in conforruity with his apjilication 
 within twenty days from the date hereof, he must communicate 
 with the secretary direct, as after one month from this date the 
 receipt becomes void." The agent omitted to transmit the appli- 
 cation to the company and the plaintitl, not having been notified, 
 applied personally to the agent, who stated such an occurrence 
 was not unfretpient, and by way of satisfying the plaintitl granted 
 a fresh interim receipt, repeating this on four diiterent occasions. 
 It was held (1) that such renewed interim receipts were valueless 
 there being in fact no new insurance effected ; (2) that the ni^glect 
 of the agent to do his duty by not tbrwarding tbe application to 
 the company, could not operate to the prejudice of the plaintiff ; 
 and (3) that the mere lapse of a month without any notice to tbe 
 assured did not render the receipt void, but the stipulation gave 
 the company a month during which to consider the appliciition. 
 and enabled them to termimite the risk within that period: but in 
 such a case, if the company does not intinnite an intention of 
 
 I TuiKi'Oii V. Citizens Ins. Co., i) Q. I.. H, 78: l)iil M'e iii/rii Ji lOil, Coinpton v. 
 AIiTi'iiiitili' Ins. Co., 27 Cliy. ;W. •! S.'c iilso iii/rn i 105. 
 
 ■I 'i:i V. C. (Cli.t i:t!», unci see aUo Patterson v. Royal Ins. Co., II Id. lUll. 
 
 Ill 
 
IX.SURANTE UNDER INTERIM RECEIl'T. 
 
 17.") 
 
 tormiiiiitiiig the risk, tlicii tlu-ro is a rontnict tor iiisuriiiicc t'oi- tlic 
 vcar ])iii(liiig on tlii' coinpany on the sajiic forms ami (.'oiKlitioiis as 
 tlio ordinary politdos of the coinpanv. IJotli insnrtT ami insiiriMl 
 under an interim receipt are l>oiind l)y tlie eonditions of tin- 
 poliey ordimtrily issnod l>y tlieeomj»any;as, forinstam , tlii> insured, 
 to give notice of a cliango of title to the insured |troperty. ami the 
 insurer, l)ound till he gives notice to the cfuitrary. must give ten 
 days notice, it such are the ref[uiretnents of the policy.' 
 
 103. Receipt for short term insurance No policy issued- 
 Insured not bound by a condition of which he was unaware. 
 
 "Where insurance was ohtaiiied for one month and a riH'eii)t taken 
 setting forth that the insurance was sultject to the conditions con- 
 tained in the ordinary policies of the company and a jtolicy. 
 though requested, was refused on the grouml that it was not 
 usuid for so short a ti'rm, it was held that the insun-d was not 
 l»ound hy a condition which he had never seen, re([uiring notice 
 of, and endorsi'meiit of consent to suhse{[tient insurai\ce.- 
 
 104. When agent's receipt is not bindingr on insurer after 
 notice given of rejection of application- It" an agent ti)r\vards 
 an application which distinctly states that only the home (dlicer-* 
 have authority to (h'terniine whether a policy shall issue, his 
 receipt for the [treinium, setting forth that it is hinding on the 
 in-surers till the policy is received, is not hinding afti'r the insurers 
 give notice that they rejci't the application.' If the receipt covt'r< 
 goods not covert'd hy the policy sul)se(pu'ntly issued, the I'ontract 
 may he enforced according to the terms of tlie receii>t.' 
 
 105. Obligations under interim receipt reciprocal' Refusal 
 to sign premium note in a mutual company. The company 
 may demand the premium if the applicant can <lemand a policy. 
 Tt has heen held, however, in the United States'' that when- 
 defemlant made written application for insurance to a mutual 
 insurance company the rate of i)remium was agreed on and policy 
 made out and defemlant requested to take it and sign the jiremium 
 
 ' (Jrtmt V. lU'liiUice Ins. Co., 41 V.C. ((J. IJ.), 22it. Iliiwki- v. Ni;i;j;,irii, utc, lili 
 I'. ('. (("1\.) !*•. (iantliitT v. Waterloo Inn. Co,. 14 l'. C". (Q. H.) 4!W>. 
 ■-■ LalliMU- V. Citizens Ins. Co., Q. H. )>> I, C. .». 2»7 
 ■' Cotton, eti'. Lift! Ins. Co. v. Scuri-y, M Ciii. IS. 
 * Wylil V. Liverpool, etc.; Ins. Co., 2:t V. C. (CliJ 412. 
 '' See also fiiij>r<i is 1(12. 
 " Ileal Kstate .Mut. Fire Ins. Co. v. Hoossle 1 ("miy, (Muss.) iCiii. 
 
 Hi 
 
 r,' 
 
 h 
 
 i, ' 
 
I 
 
 fV- 
 
 w 
 
 ,1 
 
 ■i ' 
 
 m 
 
 170 
 
 INSURANCE LAW OF CANADA. 
 
 iioto ami pay the premium, which lie ret'useil to do. the company 
 foukl not sue tor the [iremiiim, there being no completed contract. 
 The court reasoned that the [iroceedingrt on the [lurt of det'endant 
 were merely tue initiatory steps to a contract. The plaintiffs at 
 defendant's reqiU'st had prejiared a policy which would take ettect 
 as a contract on being delivered and not before. By plaintiffs by- 
 lav/s the policy was not to be delivered until the payment t)t' the 
 l)reinium and tiie signature of the dejiosit note, neither of which 
 had taken place. If a loss had occurred plaintiffs would not liavc 
 been liable because there was no delivery of the policy, But this 
 reasoning seems def*)ctive. The defendant might have comi>elled 
 the execution and delivery of a jtolicy ; it would seem that the 
 com))any might ecpially comjiel payment o\' the premium on 
 tendering the policy to defendant. 
 
 106. Interim receipt by mutual company No policy issued, 
 but payment of premium demanded and received Ont. Ins. 
 Act applicable- Waiver of right to cancel. H. ap|i]ie'l to a 
 mutual company for insurance on his property for four years giv- 
 ing a!i undertaking to pay the amounts reipiired from time to time 
 and a four months' note for tlie first premium, lie reccive<l a 
 receipt beginning as follows : •' Received from H. an undertaking 
 for the sum of ^4G..50, being the premium for an insurance to the 
 extent of $1,500 on the property described in his a'lplication of 
 this date." and thiMi providing that tlic comiiany could cancel the 
 contract at any time within fifty tlays liy notice mailed to the 
 applicant, and that non-receipt of a policy within iifty days, with 
 or without notice, should bi' absolute evi<lence of rejection of the 
 application. Xo notice of rejection was sent to 1). ami no policy 
 was issued witldn the sai<l time, whii'h expired on March 4th, 
 1^91. On April 17, Ii. received a letter from the manager asking 
 liim to remit funds to pay his note maturing on May 1st. He did 
 so, an<l his letter of remittance crossi'd anotlier from the manager, 
 mailed at Owen Sound, April 20th, stating the reji'ctioii of his 
 application and returning tiie undertaking and note. On April 
 24th the insured [iroperty was iK'stroyed by fire. 15. notified the 
 manager by telegraph, and on April 2i'th the latti-r wrote return- 
 ing the money remitted by B.. who afterwards sent it again to ilie 
 manager and it was again returned. 15. ti 
 
 len brougiit an action. 
 
 which was dismissed at the lu-aring, and a m-w trial ordereil liy 
 the Division Court and atHrmed l»y tlie (\)urt ot' .Vppeal. 
 
 
INSURANCE UNDER INTERIM RECEIPT. 
 
 177 
 
 K' 
 
 th 
 
 U> 
 
 ■y 
 >, 
 
 ill 
 
 ■r, 
 lis 
 
 iril 
 lu' 
 ■u- 
 ho 
 
 i>n, 
 l.v 
 
 Hold, aliirininir tlio doi-isioii of the Ct>urt of Appeal, Gwynne, 
 J., (liHseiiting, that tlioiv was a valid contract by the company 
 with B. for insurance for four years; that the statutory conditions 
 in the Ontario Insurance Act (R.S.O , 1887, c. ll!7), governed 
 sucli contract, though not in the form of a [xilicy ; that if the pro- 
 vision as to non-receipt of a policy within tifty days was a varia- 
 tion of the statutory conditions, it was inetti 'tual for non- 
 compliance with condition 115, recpiiring variations to be written 
 in ink of a different colour from the rest of tlie <locument,' and if it 
 liad iieen so printed, the condition was unreasonable; and tliat 
 such provision, though the non-receipt of the policy might operate 
 as a notice, was inconsistent with condition 10, which provides 
 that notice shall not operate until seven days after its receipt. 
 
 Held also, that there was some evidence for the jury that the 
 coni[iany, by ileniandiiig and receiving payment of the note, had 
 waivetl the right to cancel the contract and were estopped from 
 denying that B. was insiircil.- 
 
 107. Out. Ins. Act applicable -Provision regarding termi- 
 nation of contract. The [)laintitJ"s testator applit'd to tlie dcfend- 
 iMits in writing for an insurance against loss by tire and undertook 
 ill writing to hold himself liable to pay to the defendants such 
 amounts as might be required, not to exceed §46.50, and signed a 
 jiromissory note in favor of the defendants tor $15.25. The de- 
 fendants' agent gave him a written provisional receii»t for his 
 undertaking for §40.50, " l)eing the premium for an insurance, 
 etc." The receipt contained a condition to the eftci-t that unless 
 the insured received a [lolicy within tifty days, with or without a 
 written Jiotice of cancellation, the insurance and all liability of the 
 defendants should absolutely be determined. Xo policy was sent 
 within the time limited, nor was any notice of cancellation given 
 within that time, nor until, by letter, two days before a tire 
 oecurred on tlie insured premises. Held, that the applicatitui, 
 undertaking, note and receipt constituted a contract of tire insur- 
 ance within the provision of R. S. ()., ch. 107, which could be 
 determined only in the manner prcscrilied by the liHli of the con- 
 ditions set tortli in si'ction 114, that is, when by post, by giving 
 
 I (Ml Vif. c. :iti (0.»N. lti!». 
 
 '-' Suinviiie foiuL ot Caiiadfi, Domiiiiuii (ir«nK« Mutual !''ire Ins. Asv 
 :ir)S.(M{. 151. 
 
 12 
 
 ijl;i(lt. 
 
 
 m 
 
 
 ii 
 
w 
 
 If 
 
 III 
 
 178 
 
 INSURANCE LAW np CANADA. 
 
 seven days' notit'L', uiid thus tin contract was still subsisting at thi' 
 time of the Hre.' 
 
 In appeal it was hi-ld per Haj^artv. C.J.O., that this was a 
 contract ot' iiisurunec that couhl he tcrniiiiatctl only in accordance 
 with the nineteenth statutory condition, and that, at any rate, 
 there had been a waiver of the provision as to cessation of the risk. 
 
 Per Burton & Osier, J.T.A. : That this was a mere incomplete or 
 provisional contract of insurance for four years, and also an actual 
 contract r'or 50 days, which came to an end hy eitusion of time, 
 and that the nineteenth statutory condition did not apply to the 
 provisional contract. 
 
 Per Maclennan, J. A. : That there was a contract of insurance 
 and that the provision for determination by effusion of time was a 
 variation from the statutory conditions which was >iot bindiny. 
 not being printed in the required mode,'- 
 
 In the result the judgment of the Q.B.D., 25 O.K., 100, in 
 favor of the insured was affirmeil.' 
 
 108. Agent acting^ within .his powers Notice of termina- 
 tion received after fire Absolute repudiation of liability per- 
 mits of immediate action.- L'^pon a fire insurance company's local 
 agent, actijig within the scope of his powers and accordino- to 
 usage with such company, receiving the premium for an insurance 
 iind granting an interim or deposit receipt, sul)JL-ct to the approval 
 of the chief ofHcer of such company and the conditions of the 
 company's policies, the applicant is insured until he has notice that 
 the risk is declined. The mailing of the notice from the chief 
 manager of the company at the head office to the local agent 
 before the tire occurs, but whicli reaidies him and is ('omniunicated 
 to the insured after the fire, declining the risk is insufficient, and 
 the liability of the company continues until communication of non- 
 acceptani'e of the application reaches the iiisure<l. Where a com- 
 pany al)solutely repudiates the insurance ettectetl by tlio deposit 
 reeeiiit and when the policy has not issued, the right of action 
 accrues at once and there is no necessity to give the prelimiiuuy 
 notices and conforming to the d* wiy ami other conditions i>recedent 
 in case of loss endorsed ujion the companies' [)olicies.' 
 
 ' RarncM v. Dom. Griiii,i;e Mut. Fiiv ^n^. Ass. 2r> O. K. llKt. 
 
 -(k) Vice. :«!(0.) s. l()i>. 
 
 ■' Hanics v, Dom. GranKi.' Mut. Fiiv Iiis. Ass. 22 A. R. (iS. 
 
 * (iDOilwiu V. riiiiicjishiro l-'ire «S: Life Ins. Co., IS I,. C, .1. 1, iiml see for further 
 notice of tills case iu/ra S li:t ; Imt see infra S 1<)!', Conipton v. Meri/iiitile Ins, Co., 
 a? Cliv. :m. 
 
INSURANCE UNDER INTERIM RECEIPT. 
 
 179 
 
 108. Conditions of policy, inoluding variations, applsring 
 durins term of interim contract. -The pliiintitt wa>» insurerl by 
 tho (lefcndant under an interim receipt, wliich stated that it was 
 "• snltjeit to ajtiiroval at the head office and to tlie conditions 
 of the polii'v. Tnlesfi previously cancelled, this receipt l)inds the 
 company tor thirty days from the ihite thereof, and no longer." 
 
 Held, that the conditions of the policy applied to the insurance 
 during the thirty days and included any variations of the statntxry 
 conditions adojited hy the defendants.' 
 
 110. interim receipt not a policy within tlie meaning of tlie 
 Ont. Ina. Act -Conditions ought to be read into it. An interim 
 note being merely an agreement of interim insurance preliminary 
 to the grant ot a policy is not a policy within the meaning of 
 that term in the Ontario Act. "Subject to all the usual terms 
 and conditions of this company" in .such a note means that the 
 conditions ought to be read into the interim contract to the extent 
 to whiih they may lawfully be made a part of the policy when 
 issueil by following the directions of the statute, subject always to 
 the statutable condition that they should be held to be just and 
 reasonable by the court or judge.- 
 
 111. Prior insurance -Applicant not aware of endorsement 
 on application as to steam power -Agent's authority Distinc* 
 tion between the terms " voidable " and " void."-The plaintiff 
 had for some years insured his mill and macliinery therein with 
 the defendants, the policy having bei-n effected through one of 
 their K)cal agents, there being also another insurance with another 
 com[)any. The [daintiff", <lesiring additiomd insurance thereon, 
 signed an application therefor for a portion thereof through the 
 same agent. On the application there was an endorsement, of 
 which he was unaware, and to which his attention was not called, 
 that where steam was used for jiropelling purposes, the proitosal 
 was required to be submitted to the <lefendants before the interim 
 receipt was issued. The agent issued the interim receipt to the 
 plaintiff at the time of the {>roposal, as was his practice, 
 recognised by the <lefeudants. The appUeation, which con- 
 tained a statement, without the names of the companies, of 
 the amount ot additiomd insurances effected elsewhere and also 
 
 ' f'otiipton V. Mereiintile Ins. Co., 2"Cliy. :i:H. 
 
 - Citizens Ins. Co. of Can. v. Parsons, iiml Qui'ens v. do., 7 App. Case 06, and see 50 
 Vic. c ii, s. 114. 
 
 c; ■ Ml 
 ft 
 
 
 J 
 
 
 £ 11 
 
 »>ltl1 
 
 ^ f Jl 
 
 i 
 
 h 
 
 ■ ),i' 
 
 !.il 
 
 IPt 
 
180 
 
 INSCRANCE LAW OF CANADA. 
 
 tlio amount of the prior iusuraneo witli tlio dcibiulaiits, was sent 
 by the agent to the defetuhintij, but was luislaid hy them after they 
 luul made from it certain extensions on the |iolioy, which liad also 
 Iti'cn f> rwank'd to them for that imrpose. About two niontlis 
 after the date of tlie interim receipt, the (k'teudants wrote their 
 agent declining to continue the risk on tlie interim receii)t, retain- 
 ing, however, tlie portion of the premium earned, at the same 
 time reinsuring half the risk. Uf this the plaintiff was not 
 informed, nor was any portion of the [iremium repaid him. 
 
 Held, that the endorsement formed no part of the application 
 signed by the phiintiff, and that the agent was acting in the 
 apparent scojie of his authority, and was to be deemed printa facie 
 to be the agent of the eoni[iany ; and, as the defendants never 
 repudiated the contract, but merely determined to put an end to it 
 and treated it as u suhsisting contract, they were liable u[)on it.' 
 
 Under the eighth statutory condition R.S.O., chap. 1G(, sec. 
 114, the dei'eudants I'lainu'd that they were not liable U[ion the 
 receipt because there was prior insurance in ain)ther company and 
 their assent did not appt'ar in and was not endorsed on the policy, 
 or that tlivy were not liable upon their earlier insurance because 
 of the sul»se([uent insurance in other companies without their 
 assent. 
 
 Held, that the a[iplication and the interim receipt constituted 
 the contract of insurance, and as in this contract the total amount 
 of insurance was truly stated, and the contract contiiuied to be 
 hinding until after the loss occurred, the defendants nnist V)e con- 
 sidered to have assented to smdi insurance, and would l)e com. 
 pi'llaltle to nniici' their assent a[ipear in or to have it endorsed on 
 their policy if sucii poTuy were issued. 
 
 Held also, that the prior insurance Wiis voidable, not void, 
 and that the ilef'ndanis, after the sulise(|uent contract was I'litered 
 into, in whicii the total amount of insurance was stated, and after 
 they knew that it was entered into, had elected not to avoid tiie 
 prior insurance, hut to tn-at it as still sui>sisting hy I'Xtending it. 
 
 tSemble, that the defemlants having assented to the i'surance 
 stated in the contract of insurance, could not assert that the 
 etlccting such insurance had the result of avoiding the [trior 
 insurance effected by their policy." 
 
 ' Cockbuin v. llritisli Am. Ass. Co., ID O.K., li'.M^.H. 
 ■•i III. 
 
INSIRAXCE rXDKIl IXTERIM KKCEIPT. 
 
 181 
 
 112. Enlargeir ent and variations of interim contract in 
 Quebec, Ontario, Manitoba and British Columbia. It lias ])oeu 
 lu'ld ill Qu ' '!• tliat tlic insured cannot ho licld to a (•onipliance 
 with any conditions ol' tlic roi^nlar policy issued Iiy tlie insurance 
 company wliicli enluri;e or vary tlie tonus of tlie iiiterimlcontract, 
 so loni; us tlio coiiipauy lias neither repudiated nor Jeaiicolled tlio 
 interim receipt tu- >uhstituted a re^'ular poKu-y tor it,' and the 
 policy turnishod must of course conform to the application.- In 
 Ontario, Manitolia and IJritish Cotumltia it is held to do so. unless 
 the company has drawn attention in writiiii;' to any ditfereiico.'' 
 
 113- Concealment of previous refusal Notice of cancella- 
 tion received after fire.— An aitiilicaiit havini; heen refuseil l)y 
 
 one atfiMit of a company apprie<l to another agent of theirs, witli- 
 out revealiuij: the tirst refusal, and ohtaiued an interim receipt. 
 The com|iany c:incelle<l the contract, hut their notice did not reach 
 the insured until after a tire had occurred. 
 
 The company pleaded fraud. The Court of Review held that 
 there was no action. Uiit the Qiuhmi's Beiudi condemned the 
 insurance comiiany' ami held Hie suit i>'ood (tliou!.;'li iirout!;ht with- 
 in the sixty days); that the conditions of the ordinary policies of 
 the company could not control, and that the insuivd was covered 
 until the company's revocation reached him. The jiidii'cs appear to 
 have paid no atti'iiticm to the ohji'ction of coiict'almeiit of the 
 refusal, tlioiiu'h that fact was alleii'cd to he mati-rial. 
 
 m. Interim receipt subject tojusual conditions of policy.— 
 
 In BroirDi'i)!/ v. Prr,r!»o'hil Tiifi. f. o,. a certiilcate of insurance was 
 i,fot hy one Joel Ledue, reailin>i' '-said insurance to 1k> suhject to all 
 the conditions in the policy ot tlie company." The policies of the 
 company read " A. R., ps wA\ in his own name as for and in tlio 
 nanu' of every other person to whoni the <anie doih or may. or 
 shall appertain in par; or in all. doth make insurance.'" etc. Lediic 
 iiisure(l Montreal tloiir that he was sirnipiii<;' to XcwUiiinillaml, 
 the pi'operty of Ih'owniiisi'. The vessel on her way to Xi'wfoiind- 
 laiid was lost, and almost all the thmr. Ih-ownini;' sued on tlio 
 
 ' C'ili/.fiis' 111-. Co. V. I,('fi,iiivoi.s, l!..I.Q., 'Ji.^.H. .Viii. 
 
 -Ciiii. liltV A.H.s. (V), V. IVrniiilt .M. L. U., •"> S. (,". iL' 
 
 ■'Oiil. III-. Aft IS!»7, (ill Vic, c. :«i, s. Ills, ss. J; U, S. M,, l.'iiil, c. rii), Slut. Con. 2; 
 H. (". Ills. I'dli-'v Act, ISICi, cliMp. Vl. Slat. Com, -1. 
 
 ' (ii)ii(lwiii V, i.aiuM-liiri' I''. i*t \t. Ilis. Ci)., IS l,,C..I. 1, umi si'i' {'or fuillii'r notice 
 of tliijs viXHi! iii/rti. 
 
 
 
i; 
 
 182 
 
 INSURANCE LAW OF CANADA. 
 
 1 1M 
 
 iiirturaiico that Lodiu-, liis aifoiit. had eR'octod. Tlio cortitioatc was 
 lu'ld not to bo the i-oiiiidoto contract, l)ut tliat retoreiico to the 
 usual iiolicics was to be made, and might be made.' 
 
 116. Company entitled to terminate insurance before ex- 
 piration of interim contract. In a case in the Queen's IJcnch. 
 Uppei- Canathi (A.D. lS;j8), Goodfelloic v. The Times mid Beneoi) 
 Ass. Co., the insured Avas given a provisional receipt in these 
 words: ''Received from ^^essrs. J. G. & (^o., §14 premium for an 
 insurance of $2,000, on pro[»ert\' described in the onler of tliis 
 date, subject to the approval of the board at Ivingston : the said 
 party to be considered insured for 21 days from the above date, 
 within which time the determination of the board will be notified. 
 Tf approved, a policy will be delivered ; otherwise the amount of 
 the receiitt will be ri'funded less the premium for the tinu' so in- 
 sure(l." This was lu'ld not an absolute insurance for 21 days 
 certain, but that ihe eiunpany might reject the risk within the 21 
 days at any time, and on notice the risk would end.- 
 
 116. No actual delivery, policy being retained by agent-— 
 
 In Fried v. nnj/nl Jf. Ca.' a premium was taken by an agent in 
 New York, conditioned rhat the policy should be issui'd tVom the 
 IToad OfHce at jjiverpool, oi- the premium returned if tlii' insurance 
 were declined. Tin' policy was sent from liivcrpool to the New 
 York agei\t. J[e ri'tained it. yet the insurance was held good; 
 till' contract bi'ing held pi'rfected though the policy was not received 
 liy the insured, except as stated, and the comitany was condemned. 
 
 117. Interim receipts operate insurances, si^ibjec*'. to the 
 ordinary terms of the company's policies. Interim premium re- 
 ci'ilits nniy I'l'ally operate insuranci's during the interim term 
 unless the wiu'ding be special.' 
 
 A momoranduni or receipt, such as mentioned above, means 
 that till' insurance is to i)e according o) the terms ot the policies 
 ordinarily usi'd by tiie insurer,' 
 
 118. Recent American decisions on interim contracts- 
 Binding slip— Right of termination according to the usual 
 terms of the company's policies.— In a case where insurance was 
 
 ' ."i 1'. C, App. ('lis. lidlt; SIM' Aiiioiilil, \'(il. 1, p. tS.\ (ii'il t'i\.) cdiilrn. 
 
 '■' lit I.. \. 1(11. ' 17 H(ii-l»niir, 127, imd sec su)>ri> Ji (IS 
 
 ■• See the t wo intcrhii ri'ci'ipis In .Montreal Ashumuiim' Co. v. Mcliiliivmy, It I,,C,R. 
 48S. 
 
 In KiikIikxI inlt'rim receipt'-; nnist lie \ii)i)ii Htanipeti jiiiper, 
 
 'See oiKervatloiis of .Vylwiii, .1., in ciise of .Montceiil AHsnninco Co. v. 
 MeUiliivray, Itf.C.W. I.s.'-i, 
 
IN'SnilANTK UNDER INTERIM RECRIl'T. 
 
 183 
 
 I 
 
 
 sought to boottocrod tlirouy;!! brokers, what is known as a "binding 
 slip" was signed l)v the secretary of tlu^ insurance eotn!)any. in 
 order to provide temporary insurance peiuling an in([airy as to t'ne 
 • ■haracter of llie risk, or any ih^hiy in issuing tlie policy. The day 
 after this '•l)iiiding -Hi*" wa-; signed and ilelivered to the brokers, 
 the coiiipauy gave tlieni notice that the risk wasdodineil Within 
 a few hours after the reeeiiit of this notice there was a loss of tjie 
 property l)y tire. Tiie •■l)iniling slip" stated on ivhose account the 
 insurance was made, the property covered, tlie amount insured, the 
 term of insurance, and rlio date. Tiie contention on one side was 
 that the binding sliii was a comiilete and perfect contract, binding 
 ihe company, according to its laugiuige, ''until policy is delivered 
 at the otlieo of tlu- bi-okers'" and not termiiial)le by notice [trior to 
 that tinu' or, if st) terminable, only ufxui reasonable notici'. The 
 contention of tiie com|)auy was tliat it was a contract subject to 
 the condition> contained in the ordinary [)olicy in use by the 
 com[taiiy, the condition on which it relied to escape lial)ility being 
 as follows : '• This insurance may l)e determined at any rime by 
 request of ihe assured, or ity the company in giving notice to that 
 ertect to the assured, or to the [jerson who may have procured this 
 insurance to betaken l»y this company."' Andrews J., speaking foi' 
 the New York Coni-t ol' Ajipeals, said : " Wv thiidv there can i)i> 
 no doubt that the true construction of rlie binding slip only 
 ol)ligated the comitany according to the term> ot the [(olicy in 
 ordinary use l»y the company. There is no otiier reasonable intn-- 
 pretation of the transaction. Tlie Itindingslip was a short methoil 
 ot issuing a temporary policy foi' the convenieui-e of all parties, to 
 continue until e,\ecution of tin- formal one, It would be unreason- 
 able to suppose either that the brokers exjiected an insurance except 
 upon the usual terms impose<l by the company, or that the secretaryot' 
 the company, intended to insure upon any other terms. The right 
 ol'an insurance com|iany to terminate a I'isk is an important one. 
 It is not reserved in terms in the binding <lip. and "'onld not be 
 exercised at all so long as no jtolicy should be issued, uidess the 
 conditi(Ui in the [lolicy is deetued to be incor[>orated therein. 
 I'^pon the [)laintilt's contention, the coin[iany could not cancel the 
 risk so long as the liinding slip was in liuve, and tlie only rcuieily 
 ol' the ciunpany to get rid of tiie risk would Ite to i'siu; tin' ])oliey 
 and then immediately cancel it The biniling slip was a mere 
 meinoraiidnm to identity the parties to tiie I'ontract. the sui)ject 
 
 iiit 
 
 ill 
 
184 
 
 INSUUANCK h.\W OF CAN'yVDA. 
 
 iiiattor. ami tlie ](rii\i-iipal tiTins. It rotors to tlio policy to Ix' 
 issuod. Tlio ooiistriu'tioii is, we think, tho samo as thouijli it liad 
 expresscil that tht^ prosont iiisuranco \va>: niulor tiio terms ot' the 
 usual piilicv of the couipaiiv to I)i' tlu'reat'ter delivered '" 
 
 118a. Broker effecting' insurance is the agent of the 
 insured and notice of cancellation may be given to him- The 
 
 doctrine laid down in the [>reetMliin,f ease was reiterated hy the 
 same court in anoiher case and, the '• hindinii" slip"" liein<i' con- 
 sidered the colli raet in tlio form of theordiuarv [>olicy of insurance 
 with the usual conditions thereto attatcheil. it was held that a 
 contract in the forni of a "hindiny slip."' >i-iven hy the coni[)any to 
 a hroker ap[ilying for insurance for his prinei[ial was sul))eet to the 
 ctMiditions [U'inted on the company's regular [xilicies as to cancel- 
 lation, etc., and espec-ially that one which reads, '• tliat if any 
 hroker or othei- person than the insureil has procured this policy or 
 any >'eiiewal thereof, or any indorsemi'Ut thereon, he shall be 
 deemed to he the agent of the insured, and not of the society, in 
 any transaction I'elating to the insurance." ami that the contract 
 represented l)y the " hindingslip"" was <uhjeet to cancellation upon 
 notice l>eing given to rhe hroker ro whom it was issued for the 
 insured. 
 
 I r.ipi.uiii V. Nia;j,:u-.', loiv Ins. Co. ISl'd, liil N. Y., 4;"!. 
 
 ■i ICaixMsoii V. .Still Kin' (>;tice .if L.mloii 18IH). V>.l \. V.., :^\'.. 
 
•^m^ 
 
 CHAPTER VI. 
 
 INSriJABLK INTKIIHST. 
 
 : if 
 
 U'J. (ii;Xl:l{M. liDMAlilvS ON IN- 
 
 si'KAHi.i; iNri:i!i:sT, 
 IJd. I\Ti:ni:sT .\(Vi' iNsri(Ai!i.i; r.s- 
 
 I.KSS l.KliAI.. 
 
 121. StIITI.AI'IO.V IIIAI' I'dT.ICY 
 
 snAi.i. in; iMSdoi' or ixTi:ni;si'. 
 
 122. What is ixsihaiii.i: i\ii:i!i:st 
 IX Oniakio — IN Qri:m:c. 
 
 I2:t. 1nti;iii:st i\ niii-: roi.icY mist 
 
 KXISr AT ■I'IMIIOl- LOSS, NOT so IN I.IKi: 
 I'OI.U'V. 
 
 121. iNsrifAiu.i: init-.kkst i\ a i.ii'k. 
 
 12.'), .\Mi:iil(AN OPINIONS ON IN- 
 
 sihaiim; initihksi' in a i.ii-i;. 
 
 121). Kiiaris OK 1!i:ni;i-1( lAiiV as 
 Aiii:( ii;!) iiv A I is and i>i:i i.ahatio.vs 
 OK iiii': iNsi'in;!). 
 
 127. DuiiAi'ioN OK iNii:iii:si'. 
 
 128. CoNTi.vrnv ok intiouiist. 
 
 1211. VaUIOIS DKKINITIONS. 
 
 lUd. Insikanii: iiv A(;i:nt mtst hi: 
 vAi.iii AM) i:kki:(ti\i; AdiiNi' ro i)i;- 
 ('i.adi-; IMS iNri;i!i:si'- AOKNT i.ssriiiNd 
 
 I'Oli (I. HINT TO 1U-; NAMKI) -WAliK- 
 
 iiorsi:Mi:N -iommon cahuikus- fON- 
 
 SI(INi;i;s COMMISSION Mintl'llANTS 
 .\(il;NI' INsflUNi; IN AN kxiui;n( Y 
 — AliKNT I!I:NI)I:I!INII IIIMSin.K I.IAIll.K 
 KOIl \ LOSS, HAS AN INsrUAUI.i: IN 
 TKliKST - AliKNT <'I.AIMIN(i IN Ills OWN 
 NAMK— CONSIliNi;!:— Al ri'AI, IDKNTIKI- 
 <•; iI"N NOT N1;C|:SSAHY — MANDA- 
 TAUIKS-UHAri'ITOfS MANDATAHIKS. 
 
 l:tl. W'AHMIIOrsK KKl'lOII'T HKl.l) IIY 
 A HANK -ASSKINMUNT OK W A 11 KIIOl'SK 
 
 i(i:t liii'i's noons \i:i:ii nop m; ii)i:n- 
 
 IIKIKI). 
 
 i:t2. (iooiis Noi iiii:nimii:ii, instii- 
 Aiii.K iNTi:ui:sr HOODS noi' ihiinti- 
 Kii;i). NO iNsrHAiti.i; ini'i;ui:si tuans- 
 KEHi:i-: OK A WAitKiiorsK iiKi i;iri- 
 
 OOODS NOT IIIKNTIKIIMI, I NSIH A lll,i: IN- 
 TKIlKST. 
 
 l.'ilt. .SiiisTiiriKi) coons— ahsi:n(I; 
 
 OK CONIINriTY, 
 
 i:tl. Vi;Ni)Oi('s iNTi:iii:si' ixniiu 
 \i;iii:KMi:NT to si:i.i, iiksi:u\ inc si>i;- 
 
 ClAI. I'llOI'KinV l\ (iOOilS SOLD — 
 INI-Alll VKNIlOli CO.MI'ri.SOllV I'll! 
 
 ciiAsi; OK i'iii:.\iisi:s— iNi'i:ui:sr oi- \ i:n- 
 
 noil AKIIMI SM.i; — \ IINIIOI! AMI \ KN 
 nKl;-ll001)S IN TIIANSII'K. 
 
 l.'C). Coons iiKi.n IN lursr -mi:i(- 
 tiiANiiisK: in inrsr on on commission 
 KOIl wiiK II I'lii; Assriiiin ai:i; iii.si'on- 
 siiii.i;. 
 
 VW. Pkukix t Ti ii.i: Nor ni:i kssaiiy 
 
 — KP.Arnll.llNI' ( llNVKYANCi:. 
 
 i:iT. AIoni(iA(ii;K As-.i(iN.\ii:Nr. 
 
 Kl.s. .iroDMiiNi' cui:iii'i'oii -iM'iiivi- 
 
 I.KCHn I IIKIIITOII- NO INTl;lli:sl'. 
 
 Hi'.). Hii.i, OK sM.i; i)|- siiii' scKii- 
 
 ClliNT -INsniANCi: 1!Y I' Mi I' OWM.K. 
 
 11(1. Kcii-iTAiii.i-; iNi'i:iii:sr sci i i 
 cii:ni'. 
 
 111. IIISIIANII .VND will: l\>lli 
 
 Alil.K iNiiiitKsi' IN \viKi:'s l'llol'l;lt'l'^ - 
 I'Hoi'KHi V iiMcoNvi: Yi:n to wiki:, no 
 
 .M.IKNATION - WIKi:, (OMMDN AS |il 
 
 ruoi'i'ii'i'Y, lii:ijfini:^ iusiiami's aciii 
 oiiriv TO iNsciii:. 
 
 112. ('iil.MllAlll.l: 111 ANsKl:il o|- Molll' 
 
 (i Alii:, 
 1 l.'t. I'oi.ouAiii.i: i.i:asi-: noi:s \oi 
 
 AKI'i;c|- IIISK. 
 
 111. Isriiin irvin i\>iiii"i'i; — 
 iiiii:\i:i: ipk; siiisii i k iion csnnn- 
 
 TC AU> Kltol'llll;l'oll. 
 
 II."), I.ANni.oim a:s:> ri:\AM' oiii.i 
 (iAi'ioN OK ■ii;NANr ro iNsriii: -i.\- 
 
 srilANi |.; iiY I.ANDI.OUll ol'IION I'o 
 I'l'UCIIASi: - HKlin TO I'OI.K V MONKYS 
 
 > 'S 
 
 Ii 
 
18(5 
 
 IN'tilHANCE LAW UF CAN A HA. 
 
 ! Mi 
 
 iNsriiA.Nci: HY idnani' - kxicmttion 
 
 OK I'DNANT IN KNCI.AM). 
 
 llCi. I.NscnAiii.i: iNii;m:sr on ai- 
 
 COINI' Ol' LOSS CIK ISKNT ItY Kllil:. 
 
 117. Insikaiii.i; inikhkst ok i'Ko- 
 ritiKioH o\ AicorNT OK i.iAnii.nv to 
 I.VIliiMN li V Niicmion. 
 
 in. I'l.AIM IIY l'OSIl'UNl:i) HONII- 
 HOI.ni'i; -HKINSTATKMKNI' — IfKNT OK 
 
 MOHT(;A(:i:it i'iti:Misi:s. 
 Hit. In.nki;i:im:hs. 
 
 1.5(1. I'AWNHIiOKKKS. 
 
 l.'il. Falsi; iiiddkiss. 
 
 l.'tli. HOUKOWKUS. 
 
 l.'i;!. Hi:m:ki( L^HV iikihs. 
 
 I.tI. iNsriiAM i: !oi: o\vm:h wiiii- 
 
 oil- IMS Af rilOlU I'V. 
 
 l."."!. Insikaiili: LNii;in:si' in ihos- 
 
 I'Kl riVl; l.'AHNINtlSOU I'ltOKll'S iNsrii- 
 
 Aiii.L iNTi:ni:.sT IN i;xi'i:i Ti.i) ixiiii:asi-: 
 i.v VAHI-: — iNsrHAiiLi; ixTi:ni;.sr in 
 
 •rilIN(; XOT IN KXlSIIlNli:, OK NOT VKT 
 ACyVlIIKI). 
 
 I.V). Sfi!si:i;ii.:xTLv A(yt'ii(i;i) in- 
 
 TKRlSj- l{i:xi;\VAL .\IKHi:i,Y .V CONTIN- 
 I'ANCl: OK OIIKMXAI. 1(JNT1LV( T— Sl'IiSK- 
 
 yn:N ri.Y akjimukii iNTi:iii:sr no claim 
 
 l.")7. .Vssri(i:i) KTRNISHINC (iooKS ON 
 IIOAlili A VI:SSLI,. 
 
 l.")S. IXSTHANCKON .lOINT AllOUNT— 
 ll)lll:iUS— TKNANTS l.N Cl).M.\H)X. 
 
 l.'l!!. !'MiI-Ni:ilS, 
 
 Itill. Sl'0( KIIOLDKH.s. 
 
 Kil. Hi:vi;nsioNKKs. 
 
 Itt'. MiNOItS. 
 
 ICiM. iNsfitAiiLi: iNii:ui;si' kok ad- 
 
 VANCLS MADi: OX I'llol'IOIM'Y. 
 
 Kil. K.\IlM.O\ HI! AND LMl'I.OYKi:. 
 
 l(i."). In ii:iiKsi' OK i'\Yi:i; on hlxk- 
 
 Kli IAI.'\. 
 
 llil!. LiKi: POLICY. A N'ALI'KI) POLICY. 
 IC'T. ('HLIIIIdlt INSrillXO DKIil'OIi'.S 
 
 i.nt;— iNsruANCL IX lxckss ok dkht— 
 
 I'AVMLM- OK DKIIT NOI' N KCKSSAKIL Y 
 AN IMiliMXII'ICAi'lON OK (liKIIITOU — 
 INSriLWCh; ItY CUKDII'OII AMOINI' OK 
 POLICY IN l;Xl LSS OK I)i;ill' -ULCOVLKY 
 OK Ti>i; i;X(i;ss OK I'HK.Mir.M I'AIIi. 
 ', .\ssion»ii:nt ok likk policy io 
 
 ■A '..1 . H NO INTKHKST. 
 
 i .'. : :oN ItV sritYIVINd PAUI'- 
 
 •Ah A . 
 
 170. IJldirr IO MAKL POLK Y ON 
 
 ()Ni:"s OWN i.iKi: PAYAiiLi: ri> any 
 
 OriIKU PKIiSON— NOT AKKLCI'LI) IIY 
 
 .st.\ii:ti: un waokk poi.iciks. 
 
 171. .\MOlXT OK I.IIK POLK V lii:- 
 CKIVLIi HV CCILVIdl! ID 1 NS: il.\ LXT 
 
 i:siAii-: M \Y III: claimld on i;i;iialk 
 
 OK WIKi:. 
 
 17:;. Ixsrp.Aiiii: iNii:i(i:si' iv iiu-; 
 
 LIKi: OK A SILPSISIDIL 
 
 17.'i. Ti>i'AMi:xTAHY i:xKcr:ons. 
 171. Fhilniii.^' socii:iii:s nami: ok 
 HKNKKlciAltY xi:i:i) Sol' 111: ;N-i;iiri:i) 
 
 IN POLK V. 
 
 17."). Inschanci: imtlcikd wirii 
 
 INTLNI' IO MIUIIKH. 
 
 17(i. Hkcknt AMKHICAN DIU ISIONS— 
 
 iNsruANci: o\ nil: i.ni-: oi' \ pakt- 
 NKK illSiINc rioN iili\v}.i:n " as- 
 SlliKI)'" AND ■' INSI'Hi;!)." 
 
 177. IXSl'HAHLl: INTKUCsr OI' A.\ 
 KNDOUSKU OK AN ACCOMMODATION HILL 
 
 17s. Whlhi: no inschali; intkiikst, 
 \ \\\iii:u POLICY AssioNLi: wiriioiT 
 iNsiitAiiLL inti:iu:st. 
 
 17!). ASSICN.MKNI' OK I.IIK Pol.ll ll.s- 
 
 Ki!ArDri.i;Ni' ca.ni ki.i.ation oi' as- 
 
 SKINMLNT -ASSIll.NLK .Ml'Sl' IIAYK IN- 
 SKKAHLK INTKHKST. 
 
 150. }»ol,K Y ON OXK's own likk 
 I'AYAIILI: Id o\i: NOI' A ItLLAIIVK. 
 
 151. AsSKiNLi: IIWINC NO INSUK- 
 
 AHI.K iNii:ui:sr, imi.k v iiki.d a 
 
 \VA(ii;iL 
 
 ISL'. \Vlll:HK A LIKK INSIUANCI'; 
 
 I'oLii Y IS A WAiii;i( Policy ON oxK's 
 
 LIKK M'.Y UK MADi: PAVAKLl: TO 
 ANYONE. 
 
 ls;t. .\'-si(ix.Mi:xi OK policy on 
 
 OXK's LIKK IO ■IIIIIIK PAUI'Y I.KUAL— 
 CONTINUANCK OK INIKHKSI' OK CHKIir 
 ■|dH in 1 1 Kind It's LIKK NOT N KCKSSAItY 
 
 — PAY.Mi:Nr OK i)i:ni' xor ikhmi- 
 
 NATINO policy. 
 
 IHl. A.MOl'NT OK POLK Y DISPItO- 
 POUIIONAIKLY IN KXCKSS OI' DHIII', 
 IPl:< LAItKD A WA(iKIt POLICY. 
 
 lS."i. ClsSA'I'ION OI' INIKHKSI'. 
 
 ISO. I.NSITHAIILK INI'KHKS'l' KOH HK 
 
 iMin'itsi;.MKNT OK kxpi:nsi;s. 
 
 M, . General remarks on insurable interest — Tlio iiitoroHt 
 ot' ;m iiisiiri'r iiyaiiiHt Iohh by fire may be tbat oi an owner, or ot a 
 fiH'ditor. or any otluT interest appreciable in money in tlio tiling 
 
INSURAIiLE INTEREST. 
 
 187 
 
 insurod ; but tlie iiatuio of tlio intorost must ho spci-ified, at least 
 in Quohot.'.' 
 
 Iiisural)lo interest must exist or tlie iusuretl cannot ivcover.- 
 Wliatovor the law discourages and disapproves of", whether hy 
 special statute or on general principles enforced by the eonunon 
 law in the interest of good morals, good order and geiu'ral public 
 policy, will not be allowed to be fostered oi' eneouraged i)y insur- 
 ance. Subject to this limitation, whatevei' lias an a[ii>reciable 
 [•eoutiiai'y value and is subject to lo:-s oi' dett'riiM'ation, or of which 
 one may be deprived or whiidi he may liiil to realize, whereby his 
 liecuniary interest is or maybe prejiuliced, may properly constitute 
 the subject nnittei' of insurance. 
 
 The Civil Ccule of Lower Canada is saiil to eontain a good 
 sununary of the English law of insurance.' 
 
 In Ciistell'iiii v. I'ri'stoii.;' Bower, L..I., said, referring to tire 
 insurance, that it is an illusion to suppose that the assureil can in 
 any ease reeover more than his loss. We must look at the ordi- 
 luiry business rules. It is well known, of course, that a person 
 with a limited interest nniy insun- and recover the whole value of 
 the thing insured, but tlii'n his policy nnist be a[it for the j'uriiosi^ 
 and he must have intended to so insure. 
 
 Again, a person may insure for himself, or for himself and 
 others, as in the case of carriers and wharfingers, or, to take the 
 ease ot a mortgagee, he is entitled to insure for other parties : but 
 if he only insuri's his own intiu'i'st. he lan only hold tlu' dannige 
 to Ids own interest. That lUMueiitle api)ties here. It was conteiuled 
 that a tenant from year to yeai' nnty always recover the t'uU value 
 of the pn-mises insured; bui although that contention would 
 appear to be sup[iorte<l by the language of Lord .Listiee -hmu's, in 
 liayner v. I'reston, I cannot assent to it. 
 
 Tt may be that the insurance comiianies do not as a ruK' take 
 the trouble to ascertain the (>xact interest of the assured, because 
 in most cases the insurance is for the benefit of all concerned ; but 
 
 I vi'arlv or a wet' 
 
 Iv tenant wei-i 
 
 if a case were to occur in which 
 
 to insure, nu'a'iing only to cover his own interi'st. he could not 
 
 recover and hobl the whole value of the housi'. 
 
 
 1^. 
 
 1 l\C.I-.C. 2)71 ; Marsh, 7S!I ; 1 Hull, Com. nld ; HoikI, ii. lis. 
 
 '•' l".(Mi.(\ Art 'IVi'l & siM|, ; Mii.v on Ins., 71 ; I'ortcr's Laws of Ins., p. Ml. 
 
 Hii 
 
 i,v-I'iity, Droit t'onim., til. 10, piira. ."> ; I'iuiIcsshh, Droit ("oinin. iVlt, 1' & 1 
 
 Mii.v on Ins., 7l'. 
 
 * Porti'r Laws of Ins., 17, and see C.C.L.C. AM. itM. ■■ 11 g.H.I). ;lSll. 
 
 !; ! 
 
i 
 
 TT 
 
 188 
 
 INSUKANCE LAW OF CANADA. 
 
 
 II 
 
 It is truo that in most cases thu claim of the temiiit from year 
 to year, or for years, cannot be answered liy handiiiij over to liini 
 what may be tlie marketable vahu' of his property, and he loses 
 more than the marketable value of his property ; he loses the 
 house in which lie is living, and the beneficial enjoyments of the 
 house, as well as its pecuniary value. A man cannot be com- 
 pensated simply by paying him the marketable value of his 
 
 interest. But it does not follow that he gets or can keep more 
 than he has lost. 
 
 It is well known in marine and fire insurance that a person 
 who has a limited interest may insure nevertheless on the total 
 value of the subject matter of the insurance, and he may recover 
 the whole value, subject to these two provisions : 1st, the form of 
 his policy must be such as to enable him to recover the total value, 
 and, 2iid, he must intend to insure the whole value at the time. 
 
 120. Interest not insurable unless legal. -The general prin- 
 ciple in rcgartl to the illegality of the interest is well stated by Mr. 
 l*hillips to be, '' that if a (-outract be intended to indemnify the 
 owner trcmi loss on pro^ierty by reason of its being imidicated in 
 an illegal trade, or ap[tlicd to an illegal use, or which, according 
 to the laws ot the country where the contract is made, it is crim- 
 inal for the owner to hold, such contract is void ; and accor<lingly 
 the ownei has no insurable interest."" 
 
 This principle is fre(pieutly applied to marine insuraiu-e in 
 cases of policies on cargoes of contraband goods or on ships sailing 
 in violation of an embargo, etc., and though no cases are reported 
 of its application to tire insurance, there seems tt) be no reason 
 why it does not govern that branch of the subject as well as the 
 other. It is forcibly remarked by Mi'. Oner, " that there can be 
 no more direct encouragement to the vitdation of a law than a 
 contract that secures an indemnity to the transgrcs.-or." - 
 
 Therefore, it may well be (piestioned whether in s\ich States 
 as have enacted very stringi'ut prohibitory laws in regard to the 
 sail' of intoxicating drinks, an insurance upon a stock of li<iuors. 
 held in contravention of such a law, would not be invalid. In 
 marine insurance, if the trade be illegal, it defeats the j)olicv on 
 the ship as well as that on the cargo, but it is doubtful whether 
 an illegal trade on land would vitiate tin' insurance upon tln^ 
 
 ' 1 Phillips' Ins. i;«. -i Duer's Ins. :il5. 
 
INSURABLE INTEREST. 
 
 189 
 
 buildiiiti' in wliicli it is carried on, particularly when the owner of 
 the building is not the person engaged in the prohibited traffic. 
 
 In Jii/iiison V. Union Ins. C<i., JJass., 187U,' the phiintitt in- 
 sured on his stock and personal property, billiard tables, bar and 
 ealoon fixtures, stock in trade, liquors, cigars and glass ware. The 
 plaintiff was not licensed to keep billiard tables for gain, which he 
 was doing. The policy was held illegal, and the whole contract 
 held void. The case was held to be governed by Kelly v. Home 
 Ins. Co., which held insurance null on licpiors kejit by an unlicensed 
 person. 
 
 As said above, a right under a contract not enforceable at law 
 or equity will not sup[)ort a policy of insurance,- and among such 
 contracts would be included a verbal contract for the purchase of 
 real estate when it is not aided by part performance. But this 
 proposition may not be good law now.'' The true proposition 
 seems to bo that neither an equitable nor legal interest in property 
 is necessary to support insurance on it ; it is enough ifthe assured 
 is so situated as to l)e liable to loss from its destruction.'' 
 
 
 121. Stipulation that policy shall be proof of interest- In 
 
 England, in marine insurance, to agree by [toliey that the poliey 
 itself shall be proof sufHcient of the insured's interest, or to insure 
 "interest or no interest,'' makes the policy totally void as a mere 
 wager. In Quebec such an agreement in tire assurance would be 
 held valid to the extent of saving the insured from burden of 
 proof of interest in the first instance.' 
 
 122. What is insurable interest.— Under the Civil Code of 
 Lower Camilla a person has an insurable interest in the object 
 insured whenever he may suiter direct aiul immediate loss by the 
 destruetioii or injury of it, and this is the connnnn law.' 
 
 In Kngland and the rnited States the earlier cases restrict tlie 
 term " insurable interest" to a dear, substantial, vested, pecuniary 
 interest, and deny its applicability to a mere expectancy, but the 
 
 1 P. .") Alb. L. J. iwo. 
 
 - Aiini'll, S lii'. and see Stockdali' v. DuiiUip. (i M. i\: W., t2i, :i;i;!; Stiiiiilmiik v. 
 renniiiK, 11 C.H. ol, do. v. SlicpliL-i-d, IHC.U. US. 
 
 ' 1 May, !«i II. -2, Hraiiford v. SiuuvUts, i") W. H. (ItO; Dalloz, lS(iS, pt. l;is,S; .lojce 
 V. Swaiiii. 17 C.H.N. S. S4. 
 
 ' Nat. filUTiiiK Oil Co. v. Cltizeiis' Ins. Co., UHi N. Y. 5;K, C.C.I,.C., 2472. 
 
 * i:i I.. X., IW). 
 
 "C. C. I.. C, 2474, May, SO, ArnoiiUI, 2S1 ; 1 Phillips, 27. 
 
p 
 
 iiiiiiii 
 
 190 
 
 INSURANCE LAW OF CANADA. 
 
 II, 
 
 f 
 
 m. 
 
 \, 
 
 i] 
 
 iii^ 
 
 later (locislons wouUl seem to give a broader interpretation and 
 allow an insnrable interest to any one wlio either persDnally or as 
 representing another has a reas()nal>le expectation of deriving 
 peeuniary advantage from the preservation of the sul)jeet matter 
 of inanranee ' The French law is. however, more restricted than 
 the law in England and the United States. 
 
 122a- In Ontario. — Under the Ontario Insurance Act 1897,- 
 moditying the Gambling Vet, 14 Geo. Ill, c. 48, which is still 
 in torce except as so modified,' in order to render valid any contract 
 of insurance of the person exce[it an annuity on lite, the beneficiary 
 under the contract being other than the assured or the parent or 
 bona fide donee, guarantee or assignee of the assured, or a person 
 entitled under the will of the assured or by operation of llV^^^ must 
 have had at the date of the contract a pecuniar}- interest in the 
 duration of the life or otlusr subject, provided that any otherwise 
 lawful contract ot annuity upon life shall not require for its validity 
 that the annuitant has, or at any time had an insurable interest in 
 the life of the nominee. 
 
 And it has been recently formally decided in Ontario that a 
 mother has an insurable interest in the life of her minor son who 
 assisted her in her business.' 
 
 In England up to the passing of the Friendly Societies Act,"' and 
 in Ontario prior to the Insurance Corporations Act 18!)2,''' no 
 parent had an insurable interest in his child's life uidcss he had an 
 actual pecuniary interest in it. 
 
 An insurance company lending money may validly agree with 
 the borrower that he shall insure his life to a greater amount than 
 the debt and assign the policy to the compaii}- as security, but in 
 such a case the interest supporting the policy is the debtor's, not 
 the creditor's.' 
 
 122b. In Quebec. — With regard to life insurance the Civil 
 Code of Lower Canada, following the weight of foreign authority, 
 declares that a man has an insurable interest in the life : 
 
 (1.) Of himself. (2.) Of any person upon wlumi he depends 
 
 I May 70. - (Ml Vic, c. 'M, s. 150, ss, 1 . 
 
 ' Dowkcrv. Ciiiiada Life Ass, Co., 24 l'. C. H., 5!)1 ; C"nii,u;i'ii v. M. A. Life Ins. 
 Co., 13 S. C. K.,27.s. 
 
 ' McCiilluin V. Metroiwlitiin Life Ass. Co., Report of Super, of Ins., 1.S92, p. "i:!. 
 ■"' Porter's Laws of Ins. 40. " See Hunter's Ins. Corp. Act, IH02, p. :W. 
 " I\)rter's Laws of Iti.s. l:i. 
 
INSURAHLE INTEUEST, 
 
 191 
 
 wholly or in I'iU't for support or education. (3.) Of anv pcrsdii 
 under legal obligation to him for the iia\'iiK'nt of money or re- 
 specting property or services which deatli or illness might defeat 
 or prevent the performance of. (4.) Of any porson upon whosi.' 
 life any estate or interest vested in the insureil depends.' And it 
 decrees (in this also t'ollowing the common law) that a policy k^\' 
 insurance on life or health may pass by transfer, will or succession 
 to any persun whether he has an insurable interest or not in tlie 
 life of the person insured. - 
 
 123. Interest in fire policy must exist at time of loss, not 
 so in life policy. The interest insured in a tire [lolicy must exist 
 at the time of the loss unless the policy contains the stipulatitui of 
 "lost or not lost," But in a life policy, as wo liuvo sucn, insurabU' 
 interest at tin- date ot insurance is sufticent.' 
 
 124. Insurable interest in a life. NTay says that to have an 
 insurable interest in the life of another one must be a creditor 
 or surety, or be so related by ties of blood or marriage as to havo 
 reasonable anticipation of advantage from his life,' but this state- 
 ment would appear too narrow and not to cover an interest termin- 
 able on the death of a third party. A parent may be said generally 
 to have an interest in the life ot his child,' or rice r,'rsa, or a sister 
 in the lite of a brother in loco pavenfix," or a wife in the life of her 
 husband and rice rersa.' But a daughter cannot insure ln-r 
 mother's life unless she has pecuniary interest in it, as where she 
 can claim alimony,'' uor a granddaughter that o[' her grandfather,' 
 nor a son-in-law the life of his mother-in-law.'" 
 
 'Wi 
 
 ' C. C. L. C. Art. i")!H) ; 1 .noil Com. .it» ; Annvll. F. & L. Ins. S :i!»7 O. :i(Ki i-t 
 sell. ; DowdswiHI V. & L. Ins. 21 ; Imp. Stat. 14 Gt-o. Ill, c. H, s. 1. Kllis (Sli.iw..,) c. :<, 
 p. 2;j2, 2 AliiuZL't. nos. .'wl to .V)t). tiiien.mlt Ass., Ter. nn., .")0, HI, .">:!. 
 
 - C. U., L. C, 2591, 1 Ui'll Com., r>l."i, Kllis (Slmws,) c. .5, p. 20;f, 2ii». 
 
 ■■ Porter's Laws of Ins. OS, .Miiy, 1.")!), C. C. L C. 2475. 
 
 * 1 M.iy 10211. 
 
 ■* Wariiock v. Davis, 101 U.S. 77!», but see Iliilfool v. Kynier, 1(1 H. .t C. 72t, and 
 WoitliluKton V. Curtes, 1 Cli. I). 410. 
 
 '■ Uliss' liifo.Vss. 17; Lord v. Dall, 12 Mass. 115; Loomis Adr. v. Ka^^'le Life & 
 M. Ass. Co., (i Gray (Mass.* HtXi ; Keif v. Union Mutual Itm. Co., Sup. Ct. Cinciiuiati ; 
 17 Ins. Cliron., p. It. 
 
 'Reed V. Koyai Kxehan.i^e, 2 I'eake (Add. Ca8.> 70; Baker v. Union Mut., l;t 
 N.Y. 2s;<; Curie v. Continental L. I. Co., 57 Vt. 41iO. 
 
 •* Continental Life Ins. Co. v. Vol^^er, H'J Midi. 572 ; A'Xwi Life Ins. Co. v. l''r.iiice, 
 iM U.S. .'nil ; Goodwin v. Mass. L. I. C. 7:{ X. Y. 4S0. 
 
 ■' Uurton V. Conn. .Mut. Life Ins. Co., IS Ins. L.J. 71:!. 
 
 '" Uenliatk v. Piedmont eie., L. I. Co., :t5 La. An. 2 13 ; but see for Quebec C.C.L.C. 
 107. 
 
iiWi 
 
 *■':, 
 
 Ml 
 
 192 
 
 INSURANCE LAW OF CANADA. 
 
 It was held in om- caso in the United States that a wonnin 
 niiirlit insiire the life ol Ik f betrothed,' but this deeieion was after- 
 wards liinitt'(l.- 
 
 The decisions on this point sliow, as in those on tire insurance 
 commented on stipra, a tendency to advance from strictness to 
 liberality.' 
 
 It was torinerly held that the interest must be a pecuniary 
 one, and it was laid down in England that a father had nor a 
 farthing's interest in the life of his son,' hut, as shown above, the 
 tendency of the later decisions is more liberal. 
 
 As the premium is intended to be a precise equivalent for the 
 risk taken, it would seem that the contract is a just and e(|nital)le 
 one whether any interest in the life exists or jiot ; and that the 
 only essential eiKpiiry is. whether the ohject of the contract is such 
 as to obviate the objections to a mere wager upon the chances ot 
 human life.' 
 
 In case of creilitors whose interest is susceptible of exact 
 pecuniary measurement, the sum fixed is reduced to the actual 
 interest at the date of eftectiug insurance." 
 
 The sum recoverable under a life policy is limited to the 
 amount or value of the insured's insurable interest in the life in- 
 sured at the date ot the iiolicy.' 
 
 An insurance on the life of A by B, a creditor, as a trustee for C, 
 who has no interest in the life, would l)e void.^ Although the debt 
 may have been ]iaid since the date of the insurance, the policy money 
 is still recoverable.'-' This is in the case of life [)olicies, not fire.'" 
 
 The two leading English cases which controlled the law on 
 this (question of indemnity in life policies were Dalhi/ v. IVie India 
 it Lmdon Life Co., and Iahi: v. London Indisputable Cf*." 
 
 iChislioliu V. Nat. Caiil. Life Ins. C. ., oi Mo. :iI3. 
 ■i Singleton v. St. Louis M. Lifo Ins. Co., tiO Mo. li;{. 
 1 Stock V. Inglis, 1:5 t^.B.!). :i(U : I'orter's Laws of Ins., ;W. 
 i Halford V. Kyiner, Id B. & C. 72.5. 
 
 ■■'Forbes v. Ainerifim Mul. lAUi Ins. Co., 1.5 'jray (.Ma-s.) 211); Anderson v. 
 Moriee. 25 L'.B. 14. 
 
 '• See C.C.L.C. 2502, 2 I'iirdessns, n. ,5i):i, p. 17!t ; 1 Bell Com. 511, 54(!, An^ell iS 2,SS ; 
 
 2 Alauzet, n. ;i52, p. IS4. 
 
 " llebdoii V. West, :t B. & S. 57i) ; Law v. ],()niloii Indisputable Lite roliey Co., 
 1 Kay 22H, HW.H. 1.55; Potter's Laws of Insurance, 4:t ; Von Lindenau v. Di'sborough, 
 
 3 C. & V. a5;t ; Branford v. Saunder.s, 25 \V. R. (i.5(). 
 
 " Lewin La« of Trusts, 7th ed,, !t5. 
 
 " Law V. London Indisputable, I Kay & •!., 22:5. 
 
 '" See also is lf)7a infra. 
 
 II 24 L..LC.K, 2; 24 L..J. Cli. liHi, referred to S 21 suprn. 
 
INSURAlJIiE INTEREST. 
 
 193 
 
 If a iioIiiT ill tlio iiiinu' mid on the life of juiotlier be offoeteJ 
 for liis own benefit by a person who lias no intuniblo interest in 
 snch life, and the insuranee company, on the deiith of the person 
 whose life is insured, i»ays the iiisiiranee money to the person 
 ejecting the insiiraiiee, he is entitled to retain the money as 
 against tlie legal jtersonal representative of the deceased ; and 
 although the illegality of the policy under 14 CJeo. III., c. 48, on 
 the ground of sibsence of insurable interest would have constituted 
 a good defence to ati action against the insurance company at the 
 suit of the person cftecting the insurance, yet, the money having 
 been paid to him, such illegality would not affect his right to 
 retain it ; for the statute is a defence for the insurance company 
 only if they chose to avail themselves of it.' 
 
 125. American opinions on insurable interest in a life.— 
 
 Mr. Oooke, in his Amerii-au work on life insurance, jioiiits out 
 that the doctrine of insurable interest in a life, though so perfectly 
 established as to be fundamental, cannot find justification in the 
 rules applied to analogous cases. The supposition is that it is 
 contrary to public policy that one person should receive a benefit 
 conditional upon the death of another, and that the temptation to 
 destroy that other's life must be balanced or counteracted l»y the 
 existen -e of an insurable interest in that other's life. But this 
 expectation exists in the case of a legacy, a dower oi a Hul)stitu- 
 tion or life tenancy and the objection has never bien applied to 
 these cases. 
 
 Further, if the doctrine had a sound logical basis, the cessation 
 of the insurable interest would cause the contract to become invalid. 
 The contrary is the case. 
 
 The reason given fi)r applying a diflif-rent rule to fire insur- 
 ance, viz., that it is a contract of indemnity, is not satisfactory, as 
 it does not meet the objection. Fnder the common law it would 
 seem that i.o insurable interest in a life is necessary,^ though the 
 contrary appears to have been commonly supposed. It was 
 oriijinallv based on the construction of the Gambling Act.^ 
 
 CD • O 
 
 111 the United States insurable interest must be 2»leaded as 
 
 I Porter, 71. 
 
 '■i Vivar v. Supreme Lodge, etc., 20 Alt. Hep. ',H\ (1890) ; Shannon v. Nugent, Hayes- 
 (Irisli), .>M); Scliweiger v. Miigee, Cooke & Ale. (Irish), 182. 
 Ml Geo. III. c. 4.S. 
 
 13 
 
 t 
 
 i| 
 
 . 
 
 1 
 
 
 i* 
 
 
 
 
 ! ^, 
 
 Irl 
 
 
 1 
 
 
 
 
 ir^\ 
 
\W 
 
 194 
 
 INSUKANCE LAW OF r-AKADA. 
 
 Hill ^ 
 
 well a8 i)rovo(l,' but tlio insurer may waive tlie i>oiiit ]>y not raising 
 it Hpctially.^ 
 
 The unsouiidnoss of the doctrine of insurable interest is 
 apparent from the decisions holding that ro sustain insurance by a 
 creditor it is not necessary that the amount of his debt equal or 
 eveh approximate the amount of the insurance, though, if the 
 amounts be grossly disproportionate, (he contract is invalid, as a 
 wager.' 
 
 Dalby V, India (»• London Company ' .overruled Ciodsall v. 
 Boldenr' and established tlie doctrine in England that a creditor 
 is not limited to tlie amount of his <lebt, but may recover the full 
 amount of insuranct. 
 
 It is held in the United States chat interest runs on the 
 amount of claim from the time it is due." In Ontario it ha. been 
 held to run from the time when clainumt was in a position to give 
 the insurer u discharge.'' 
 
 Whether as between the parties the creditor's interest ceases on 
 extinguishment of the debt depends on whether the agreement 
 was to that eflect. The creditor paid by the insurer nmy, in 
 accordance with an agreement with his debtor, hold the money, or 
 a part of it, as a trustee for the latter and subject to the hitter's 
 rights to collect it from him. In the absence of express agree- 
 ment on the point, where the contract is etlected by the creditor 
 directly with the insurer, the creditor paying the premium, it 
 seems generally accepted that the creditor is under no obligation 
 to the insured or to his representatives with reference to such 
 application. And whcKi the creditor, not effecting the contract 
 himself, I'ither (il)tains his interest tliercin fntm being the benefi- 
 ciary under the contract as I'Hcctcd by the insured or another \n'Y- 
 Hon, or is the assigni'e of the insured or ol another person, th*' 
 rule still "Uis to bi' tliiit tlui creditor, if he [lays the premiums, is 
 under no ubligation to tlut insured or to his ri'jtresi'ntativcs with 
 reference to such application. 
 
 I Huitoii V. Ciinn. Mill. Co., 1111 Iiiil., :i()7 (issii). 
 
 •iCiimiKii V. N. \V. Trust Co., 21) lliui.. 170 (lSS:i|; .Miss. Viilli'y Co. v. Ciuiiiin, IMi 
 Kiiii. llii (1HS7). 
 
 ' Hilll.T V. .Siiiilli, 7(1 IikI., JIU (ISSII); Ciuiiiiiiick v. Lewis, lo Wall, (!l:i(ls72). 
 
 * ir. C.H., :«iri dsr.i), 
 
 '• !l l';as(, 72(1.^(17), ii'lViii'd to miiirii i lil and ;i 121. 
 
 ".Siipiviiio I,oiIki' A.O.W. v. /iililkf, 12!» III., 2!W (ISSt)). 
 
 f Toronto SiiviiiK^ IlimU v. Ciiiiiulii Co., II Oiaiits Cliy. I'.C, ."iOtl. 
 
INSUIIAIU-E INTEREST. 
 
 19.-) 
 
 Puynieiit of i»remiunis l»y tlio insured is the circumstaiico 
 usually rolit'd on iis establishing an implied a_a;reement that t\n' 
 creditor, alter satisfying his debt, shall pay over the Italanee, if" 
 anv, to the insured or to his personal representatives. Yet it 
 seems that payment ot the premiums by the insured is of itself 
 insuflieient to ereate such ol)li<(ation on the jKirt of the creditor; 
 it seems that the contract must have Iteen originally eftected in 
 pursuance of an agreement between the insured and creditor that 
 it be so eftected.' 
 
 126. The rights of the beneficiary as affected by acts and 
 declarations of the insured. In so far as the statements of the 
 insured are contained in the contract or so far as his acts violate 
 the contract, tlie beneficiary is bound by such statements and acts. 
 But statements of the insure<l not contained in the contract cannot 
 prejudice the beneficiary,- uidess they are so closely connected 
 with the subjett nnitter of the contract as to be regarded as in 
 etteet statements contained in the contract.' 
 
 127. Duration of interest. -The general rule is that the in- 
 sured must have an insurable interest both at the time of insuranco 
 and at the time of loss,* but this is modified as to life policies. It 
 has been held by the Supremo Court of Cainida that if the assured 
 had no interest in the property at the time of insurance, a subse- 
 (|uently aiMjuired interest will not save tlu- policy, and a renewal 
 after the interest is gained, being a mere continuation of the void 
 policy, is itself void." Ihit though given by the highest court in 
 Canada this decision seems difficult to reconcile with the view now 
 generally ac(!epte(l that the renewal is not a mere continuation of 
 tlie old policy, but a new contract.'' If. knowing the facts, tlic 
 com[iatiy recognizes tlic policy as vaiiil and cxecutcrt a renewal, 
 there would st'cni to be the (ifii/rei/alln inenllniii ami all tlie elements 
 of a valid new contract based on a y-ood insurable interest. 
 
 ' Knox vs. Tiiniur, ;i'.» r,..l. (;ii., 7"ii) dsVd); Witsliiiinton ("ciilril Haul; \\ Iliiiiu', 
 I'iS, r.S. lirxlSSS), 1111(1 Hci' ciiscs cilfd ill Cl.irUi' on liifi' Iiis. S lis, 
 
 - Miiyiiiinl V, Itliiiilc , ."> DowliiiK iiinl Itvlaiid, 'JUiidsTIi ; Mullcr \. StiiU' Mill. Co., 
 ."■ Hull, aHKl.siXl). 
 
 'Swifl < Mrtssii. .Milt. I'll., (i:i N.V., JSil (IS".")) ; .Smiih v. Niil. lien. Soc, l:i;tN.Y., 
 X'l (isiMi). ' May lii!|, (MM-.C. -JIT.-.. 
 
 ■'llinvai'd V. I.nnciisliiri' Ins. Cd., 1! S. ('. |{, '.tJ, ri'iJiirtcil iiifrfi S l.-)(l. 
 
 " Si'c stiinu) i lin, r'lri'iiian'.s Ins. Co. y. l'■io^ , & t'n., (17 Mil. Kll ; Kiir.^ v, llcckl^i 
 I'iiv Ins. Co., ns Wis, ."ills. 
 
 || 
 
 !, 
 
 ii'''i 
 
rpr- — .- 
 
 Ilffi!! 
 
 h! if 
 
 iili 
 
 Ri 
 
 
 
 11 
 
 
 
 1 
 
 
 
 •■' 
 
 
 
 \ 
 
 
 
 1 
 
 
 
 m 
 
 i 
 
 196 
 
 INSURANCE LAW OF CANADA. 
 
 128. Continnity of interest.— In the absence of ivny condition 
 against alienation which avoids the policy, the insnrers are not 
 prejudiced by an interruption of the insurable interest and their 
 liability ceases during the period of interruption to revive again 
 after the interruption.' So a violation of the conditions against 
 over insurance or sale, and upon principle any like condition non- 
 existent at the time of the loss does not work a forfeiture but only 
 a suspension of the insurance during the violation. - 
 
 129. Griswold on insurable interest in tire insurance says : 
 To make an insurance policy legal and valid, the insured must 
 possess such an interest in the subject of insurance as may bo 
 sufficient for the purpose of deducing the existence of such a loss 
 to him from the occurrence of injury thereto l)y fire, as may be 
 pecuniarily valued.' 
 
 As many several and distinct "insurances" may exist simul- 
 taneously upon the same property as there nuiy be separate insur- 
 able interests connected therewith, without creating " other in- 
 surance" or necessitating co-contribution for losses, as mortgagors 
 and mortgagees, lessors and lessees, factors and owners. 
 
 No insurable interest will exist, however, in cases of liens 
 until everything lias lieen done wliich may be necessary to give 
 such lien effect and validity. 
 
 Griswold says further : ' It is an imjiortant requisite in all 
 insurances that the interest to be covered must be ii legal one ; for 
 a ptdicy upon a subject is void if the interest thereby covered is 
 illegal, or if the contract contemplates an illegal use of it. 
 
 One having an insurable interest in jiroductive property may 
 insure the prospective ciirnings"' arising therefrom ; but these in- 
 terests nnist be coveri'd specitically as such, and usually at a fixed 
 value and rate per ciMit. 
 
 Griswold idso says, e((uity of redemjttion is tlu' right to redeem 
 a mortgiiged estati' utter it has lu'en forfeited at law for non-]tayment 
 at tlu- time appointed. The bolder of such an e(|uity hiis an in- 
 surable interest therein during its continuance.'' 
 
 130. Insurance by agrent must be valid and effective. An 
 
 agiMit or consignee procuring insurance nuist procure valid in- 
 surance with solvent insurers, and communicate their names." 
 
 ' Miiy 101, 11, l.iuitl sec /'/lyVdji lltt. -' Itl. •■ SS :(2S, :i'.!l>, iWd. -"ii.'IKi, '■iHri. "S^d". 
 ' Uouiiiy I'lily, Vol, :t, liurrcll v, IJiillanl ,/ id.. Q.M. (iuildlmll, Kfh, lH(i;t. tiled 
 111 i;t L. N. •M-.i, 
 
wy W: 
 
 INSURABLE INTEREST. 
 
 197 
 
 If a person covouaut to keep insured, his procuring a more 
 slip unstamped, or an unstamped premium receipt, will not in 
 England satify such covenant, unstamped papers not making legal 
 insurance.'- A policy stamped (or interim receipt stamped) alone 
 can make such an insurance. But in Quebec, no such Stamp Acts 
 exist, therefore insurance by slip or mere receipt for premium is 
 good, for the case of such a covenant. 
 
 Where there is a covenant to insure, if the covenantor do not 
 act promptly and [lay the premiums, the covenantee may pay 
 them and sue for the amount.' 
 
 If a person agree to keep insured, and get delay in conse- 
 quence, he must not allow the policy to be uninsured even for two 
 days, else he lu'eaks liis agreement and his delay ceases.- This 
 agreimient is frequent whore compromises are niade. 
 
 By covenant persons may bind themselves to insure, e. //., a 
 teuiint nuiy and often does, under pain of forfeiture of lease. Such 
 coveiumts are strictly enforced.' 
 
 And if a lessee bind himself to insure in tlu; joint names of 
 liiujsclf and lessor he must do so literally. Mere verbal evidence 
 of the lessor saying that he would be satisfied with less (as evi- 
 dence of waiver) will he rejected.^ 
 
 130a. Agent to declare his interest. -When an agi'ut claims 
 indeiiniity he will have to deilare his interest."' 
 
 The iici/Dlioruiii ijestur may insure, but ought to state his 
 ([uality. 
 
 An agent may insure dimply '"as agent" and the princi[ial 
 be shown afterwards, but there must be no fraud." 
 
 130b. Agent insuring for client to be named — V broker oi- 
 agent may insure for ai'counr ol a client to be named, or may do 
 so in his own nami', if the conditions of the [xdicydo not prohiiiit.' 
 
 In France, in the case of nominal insurani'c by broker, the 
 principal may sue."* 
 
 130o. Warehousemen. — A. a whartingfr and warehouseman, 
 insured goods in his warehousi', and "goods in trust and on iMini- 
 
 ' Miiyne on Piuimni-s, p. ;i(K». Hey v. Wyilic. 12 L.I.g.ll. s:i. 
 
 - I'lin-y V. (JiviU Ship Co., Kiiu;lisli .hirist of 1S(U, citoil in i;i L. N'. '1\;\. 
 ■■' Doe V. lilml\viii,(i Q.ll.ll, litiMi in 111 L. N. 2m. ' //;. 
 
 " Cusiick V. Mut. IiiM. Ci). of HuiValo, tl l,.C. .].\\)1. » i:t I,. N. '£M. 
 ' Drowning v. Provincial Ins, Co., i;i L.N. S\'>. 
 
 - I'anlcswiis, Dr. Com. pp. M\), 'uH. Set' .\rnoul(l on Insuranci', p, i:tH. 
 
 i 
 
t 
 
 It 3 1 
 
 : I 
 
 198 
 
 INSURANCE LAW OV CANADA. 
 
 I 
 
 luissioii tlioiTin." A. liad goods bi'longing to liis onstomors, on 
 wliii'li lio liud a lion for rent and rhargos, but no t'nrtlior intciv.st 
 ot' his own. lie hud never eluirged his customers for insurance, nor 
 did they know of the policy. The wareho\ise and goods insured 
 wt're all I'onsunied. The insurers refused to pay for customers' 
 goods heyond the amount of A."s lieu. But A. was declared 
 entitled to gt't the whole insurance, lie would he a trustee for 
 part of it.' 
 
 In Witters v. 77m; Mmiarch Lis. C<».,- the plaintitts (ware- 
 housemen), not insurers, were not liable to the owners of goods 
 which wepi' l)urnt. IJut the plaintiits had ins\ired the whole value 
 of the goods, though their [lersoual interest was oidy for their 
 charges as warehousemen, tor which they had a lien. The insur- 
 ance company was held liable in full. 
 
 Warehousemen and wharlingers may insure goods deposited 
 with them, though without the ju'evious authority of the owni'rsi 
 and the insured ari' I'Utitled to recover the whole value. They 
 nuist then account to the true owners for all except their own 
 interest (say for charges on the goods).' 
 
 A warehouseman is ntu/ofiiirmii yTs/n/- of those who have goods 
 with him, so that il' he insure such goods and get [>aid, he may 
 i»e sued by the owners of tlie goods. It is not so, however, in 
 Kngland, at law at least.' 
 
 in Sidcira)/s c.t al. v. '/'ndd rl al,'' a whartingt'r without the 
 knowledge of tlie (h'|iositor insured goods dc|iosited. The goods 
 were phu'cd with the wliartingci' in storagi' and ibr sale by him. 
 A lire hapi»em'(l and thcgoodswere lost. The whariinger i'ccciv*'d 
 the insurance money, il was hclil that, though he nci'dcd not to 
 iusnre,"yet, liaviiig dcuie so and rect'ivi'd the money, ho was IkumhI 
 to account to the deiiosit(M's, as he held the goods for them. 
 
 130d. Common carriers In fjundoii >{■ A. W. A*. <"". v. 
 
 (ili/iu),' the plaintitl's, conunon carriers, insured goods '•their own 
 
 1 WiiliTS V. 'nu' JMoimicli !•'. A- I.. Ass. Co., :. Kl. cS: lil. Also .lurist, A.D. lS.-.(), 
 fitoil ill i:i !,. N. :i:ts. ■■•■ i,i. 
 
 ' Wivtts V. Till" Moimirli L. & V- Ins. Co.. 'M V.A.. k V.<\. If., cited in i:i 1,. X. 2:W. 
 
 * V.\ I,. N. LW. ■'2Sliii-ki.> ){.. )). HHI. 
 
 '' Aliove it is suit! "tlutiiKli lie iici'ilcd noi in-iiri'." Iliil inicry ; foi lu' ii'iiliy 
 IiikI t wo (|Uiilil icH : lie wiis imciit. to srll, iis well us wliiirlliimT, iiiiii ii coiiimission on 
 sillies was ii;.;i('t'(l for. As to lire iiisiiraiii'i', wliiirllii^^or's iiiiliilil y, I lie decision of t lio 
 Muster of llic liolis WHS adlniii'd, N. M. it More. Ins. Co. v. I,ivei|inol I,. iV (llotie, :td 
 L. T. (!JH( A.D. l.'^TT). Sec l:i I,. N. :j:ts. 
 
 " 1 l':ilisM Klli-^. A. 1>. I.s.-)lt, cited ill 1.'! I,. .N. 'JIIS. 
 
INSURAIiLE INTEREST. 
 
 109 
 
 and in triirtt as warriors," as;'iiiiist all loss that tlu* assured sliuuld 
 suft'cr In' tire on the property partieularized in the jiolicy. It was 
 held that, to the amount of the poliey, tlu' whole value of the 
 gootls ill plaintiffs' possession as earriers was insured, and not 
 merely their interest as carriers; and that plaintiffs would ho 
 trustees tin- the owners of the <!;ood8 oi' the amount reeovered, less 
 plaintiff^s' eharg-es as earriers, and in r(>speet of the goods.' 
 
 Ill Croirle)/ y. Cnlu'i),- an insuranee "nii goods" wa^ iield 
 suffieient to eover the interest of earriers in tlu' property under 
 their eharge; for in general, it the suhject of insurance he rightly 
 descrihed, the particular interest need not he stated. There may, 
 however, he a. condition reading otherwise or a code enactment, as 
 in Quehec. 
 
 130e. Consigrnees, commission merchants. One of the most 
 
 important duties which the safety of mercliandi/,e rei[uircs in 
 factors and consignees \vhi> act as tactors is that of proteetinii' it 
 hy insurance.' 
 
 Shaw (upon KIlis) cites several cases in which in the I'liited 
 States it has heeii lu'ld that hy the custom of mercluints it is the 
 duty of a consignee or I'ommission merchant to insure the goods of 
 his consignor, though he may havi' received no express <lireitioMs 
 to that effect. Consigiu'cs for sale are not positively hound to 
 insuri'. unless they liave received orders so to do, nv the usage ol' 
 trade, or their hahit ol dealing with their principal, lias i'ai>cd an 
 implietl ohligati(M\ to insiii-e.' In llie Louisiana Annual lit jnirts 
 of 18.")") tlu're is a case in which I his was Iclil.'' 
 
 Though it was said that a eoinmission merchant is not hound 
 to insure tor his [U'ineipal if not ordered, hy genei-al usage in a 
 [•lace. a. commission nu'rchant uiiglit lie held hound !o have iii>iii'ed.' 
 
 130f. Agont insuring' in an oxigonoy.— An agent not gener- 
 ally authorisi'd to insure may, in uiifori*seeu exigencii's, acipiirc a 
 right tt> insure to prevent a loss to his prineipal.'* 
 
 ' S(>(' also 1,011(1(111 .V N W.l!, ('(I. V. (JIviiii, 1 i:il. N: llll. ."i .liirisi N.S., in « Inch 
 it WHS liL'Jd 1 Imt ('.■irrici's iiiiiv iiismi' pxuli ciil nistcd (m i lu'iii. iiiid I o I ln'ir full vuliu-, 
 .111(1 not nnrclv to cnvcr tlicii' (■liiii>;i's. Hut llic.v niiist insure tlic hikmImih in truHt, 
 anil fill' lliciiiHi'lvcs in so funis interested. Sbu 1:I I., N. 'JHS 
 
 - Cited in i;t 1,. \. lilts. • (".C.I,.(\ 2:)7I. ' I'.lley <ni Aueliey, IS. 
 
 ■"'Stiiry 1)11 A,u;eiiey, 111. "See V.\ \.. S,\IV1. 
 
 " i;t L. N. S\l, "ill! ; sei^ iilso iis to " lonsinnecs "; latcenii v. t'l'.iwfciril, l! 11. iS: I'. 
 ikHt, :U(7 ; Crowley v. Colien, 11 U. & Ad. ; 2 Moh. \ 1'. Miil, new U, ; Cnsueli v, Mat. Inn. 
 Ci). of Hiitl'iilo, (I l,.C..I. 117. " .Story mi AKeiiey, 1 II. 
 
 
 i 
 
 
 
 f 
 
W^"^ 
 
 200 
 
 INSURANCE LAW OF CANADA. 
 
 Ill 
 
 130r- Agent rendering himself liable for a loss has an in- 
 surable interest. Although A. is merely the agent ot 15. lu obtain- 
 ing tVoin C. an advance of money on certain goods, yet, if ho 
 renders himself liable to B. for any loss which might arise after 
 the 5ale of the goods, he has an insurable interest in the goods, 
 and can therefore legally insure them in his own name to the full 
 extent of the loss.' 
 
 130h. Agent claiming in his own name Consignee -Actual 
 identification not necessary. — A person who insures as agent for 
 
 another cannot sue for indemnity in his own name as principal. 
 If a consignee sues for indemnity under a pcdicy eftcitod in his 
 own name upon good ' '''ging to another, and foi- the recovery 
 of the insurance i 'i ' ;. Mis, it is sntlicient to establish that 
 goods of the charact. . ai.d oiand and of the (luantity claimed were 
 actually in the buildi'ig where the goods were stored at the time 
 of the insurance, and at he t:' . the building and its contents 
 were wholly burnt, without prcv'.iu!' the actual idcntitication ot the 
 goods described in the warehouse nceipt.- 
 
 130i. Mandataries.— A mandatary ha.-< an iusurabU; interest 
 in the subject of the mandate; it ]»ower to insure has not been 
 given him expressly, it is implied in most mandates.'' 
 
 130j. Gratuitous mandataries. In the Cuitcd Slates a mere 
 ijraiuitous promise to insure, uneonnccteil witli any relation of 
 principal and agent subsisting between the [larties, or with any 
 duty arising from usage, is not binding, provided the [u'omisor 
 <loes not enter upon its perfonnaiiee. Such gratuitous mandatary 
 can only be lield liable I'or misfeasance, not nonfeasance,' and so it 
 would be in Kngland. IJiitin Lower Canada it would be otherwise.'' 
 
 The ih'i/iiliiirinii i/rslor ought to deelari' his ([uality, and insure. 
 
 In the United States and Knglaml, if sueli agent or person 
 attempts to I'ulHl his promise, and is guilty of gross negligence (U- 
 nnskilfiilni'ss in the execution ot his voliuitary tfust, he will be 
 liable to the other party in an action on the ease for all danuiges 
 restdting from such m-gligeiice." 
 
 1 (VCimiKir V. liiipiTial Ins. Co., 1 1 1..C..I. Jilt. 
 
 - Wilson V. Citl/iMis Ins, Co., lit I,.C..)., 17.'i(i.M. Sou iilso miprd S IHltu anil 
 infra § Mia. 
 
 •■' TroplonK, Manrtat.. (l:il, i;i L. N. \iM]. 
 
 ^ I .Johns. HI ■' i:t L. N. 2i:t. 
 
 " TiMcy V. Wood. II Mason, i;t2 ; Tliorni- v. Doas, I .lolniH. HI. 
 
INSURABLE INTEREST. 
 
 201 
 
 But when the situation or profession of tlio one who niukes 
 this gratuitous ofter is such as to imply skill, as if, for instance, he 
 is an insurance broker, or known to be well acquainted with the 
 buaitiess of insurance, an omission of that skill will l)e held to be 
 gross negligence.' 
 
 131. Warehouse receipt held by a bank. Where a bank 
 held a warehouse receipt signed by the clerk of a warehouseman 
 and endorsed by the latter, it was held that the receipt was invalid, 
 as the clerk was not a warehouseman, and the bank was luU 
 entitled to recover on an insuraiu'c [xdiry assigned to it by the 
 warehouseman. - 
 
 The hobler of warehouse receipts ot grain bad it insured and 
 then endorsed the warehouse receipts to a luink as collateral secur- 
 ity. Tt was held that nndei- the Dominion Act. •>! Vic, c. 11, 
 sec. 7, the property in the grain [)assi'(l to the bank and he could 
 not recover on a policy insuring him as owner." 
 
 131a. Assignment of warehouse receipts Goods need not 
 be identified. (Jmids liclil under a duly endorsed warehouse ri'- 
 ceijtt. as collateral security for advances, i ly be i)roperly and 
 leg...ly insured as being the property of the holder of such receiiit, 
 he I)eing the party who nnide the advances. 
 
 In an action by api)ellant against the respondents for 
 $2,5:52.00. being the amount of a pronii-isory note by li. to onler 
 of ai)pt>llant and emhu-sed l)y \V. \l. k Cti.. this note was date(l 
 27th ;\|)ril. IStu. ami jiayable four months atter date. The appel- 
 lant alleged that about the 10th Deceniln'i'. l.*^fiij. one R.. a broke!', 
 or some othei' pei'son acting through hini. owiumI smd p(>ssessed 
 1,000 burrels of I'etined coal oil. whicii wi're in M.'s warehouses, 
 that is. 700 in waivhouse innnber 1 and 2i)0 in warehouse numbei' 
 2, for which M. delivered warehouse rei eipts to Iv. undi-r authoi'ily 
 of the owm-rs : that on the 2(itli Decendiei-. I.^tlti. K. assigned to 
 appellant the warehouse ri'ceiiits and the oil they rcpi'csented by 
 endorsing them : that on the JJOth Ai>rii, lS(i7, appellant I'c-trans- 
 ferred to R. .')00 barrels, then stiU'ed in said warehouse, with the 
 uiwlerstamling that upon R. paying on the 2nd Scptendter, 1(S(!7, 
 his note of S2,;j00. he woidd rcconvcv to R. the remaining .')0() 
 
 'Skii'N V. UliicUliiirtif. 1 II. Ml. 15S ; Wyld v. I'yrkfonI, S Mooh. >t Wi-ls. li;t; 
 l:) I,. N. 212. ■iTixlil V. I.ivt'i-pool Ins. ("o., 21) V .C.V V . oiiMlHTO). 
 •' Mi'Hrlilc V, (iorc Ins t'o.,;i(i I'.CCi.H. i:<l (1m7ii). 
 
 » '1 
 
 il 
 
 r 1 
 
 i 
 1 
 
 f1^ 
 1,. J 
 
lit 
 
 202 
 
 INSUBAXCE LAW OF CANADA. 
 
 n 
 
 ill 
 
 biirrols of oil, wlieroapon lu) surfeiidcred tlio two receipts tor tlie 
 1,000 barrels and received back a Wiireliouse receipt made by M. 
 in the name of the appellant. Tiie appellant on the Int May in- 
 sured witli res[)ondenrs theses 500 barrels for a period of tour 
 months for .$4,000 in warehouses nund^ers 1 and 2. On the 18th 
 August, 18G7, the store number 1 was destroyed by lire and tlio 
 oil consumed, whereupon he claimed the insuraut'C to the extent 
 of the amount of the principal and interest of R.'s note. The 
 respondents pleaded that R. was never the owner of the oil, that 
 the oil was never stored by R. or any one else giving R. or a[>pel- 
 lant control thereof, and that it was not there wlien the store 
 number 1 was burned. That supposing }>\. & Co. Avere the owners 
 of the oil, under 24 Vic, ca[>. 2, they could oidy give a Avarehousc 
 receipt that would be a diu-ument of title in the Inmds of R. by 
 making it in his own t'avor and en<lorsing it to the second holder. 
 That at the time of elK'cting the insurance the appellants repre- 
 sented the oil to be in munber 1 and number 2, and never notified 
 the respondents of the increased risk by its removal into number 1. 
 The court below dismissed the action on the ground that R. had 
 i\o oil of the Victoria bran<l in store numV>er 1. 
 
 Held, distinguishing from Wilson & Citizens' Insurance Com- 
 pany' and confirming the judgment of the court below, that it was 
 proved ap[iellant never had any oil there, but that, on the con- 
 trary, it was proved that there was no oil there of the descrijitiou 
 mentione<l in the warehouse recei[its, either at the time the in- 
 surant'C was cH'ected or at the time the tire occurred. - 
 
 132. Goods not identified— Insurable interest.— In the case 
 of insurance of a number of liarrels of oil purchased by the 
 insurc(l, but not actually identitic(l and si'pai-ated from otlier 
 liarrels of oil contained in the building in wliich the oil was stored, 
 the insured has, nevertheless, an insurable interest as proiirietor in 
 Ihe [iroperty <old. A verdict of a, jury in favour of the insurance 
 company based on a I'hurge ot' the judge that the property in the 
 oil di<l not, under the ciremiistunees, pass to the iiisure<l, will bo 
 set aside and a new trial granted.' 
 
 132a. Goods not identified, no insurable interest.— Tn Box 
 
 I l!l l,.C..I. 175. -Q.i!. V. IIiMiil & WcMiTii Ass, Co., :; Q.L.I). IIIS, 1111.! ,si(/ic((, 
 
 ■ Miitlu'w son \ I{ii.val Ins. Co. Id l^.t"..!., i'\ ; l)ut .soi- l!ox v. I'roviiicial Ins. CIo. 15 
 t'.C, Cliaii. ill I'm. ^ Kt'ii. 
 
INSURAliLE INTEREST. 
 
 203 
 
 V. Provinciiil Co.,' 3,500 bu^liols of wlu'tit, boiiiijlit l»y the iiisinvd, 
 and whii-h formed part of a lar<i:('r ([uaiitity, liad not booji scparatod 
 from the rest; it was lield tluit tlicre was no insural)le interest. - 
 
 Jnd<;e ^faekay asks, wliat wonld liave been the decision it 
 there had been a total loss.' Fn .=ueh a ease the question of 
 identification wonld not havi^ been raised. 
 
 1321}. Transferee of a warehouseman's receipt— Goods not 
 identified— Insurable interest.— The transteree tor value of a ware- 
 houseman's receipt for a certain amount of wheat not se]iaratcd 
 from a larger amount, has been held to have an insurable 
 interest.' 
 
 133. Substituted goods— Absence of continuity.— It has 1)een 
 held in Ontario that policies cover after-ac(piired goods wliicli Imve 
 been substituted for those originally insured.' And the interest 
 in tlie subject matters insured need not be eontinuous, since absence 
 of continuity only means absence of risk.'' 
 
 134. Vendor's interest under agreement to sell. A vendor 
 who has agreed to sell for full value has, nevertheless, pending 
 the contra(;t of sale, an undoubted right to insuri' the [iremiscs sohl- 
 If such a vendor insures the i)remises describing them as " his," 
 this is no misrcpres(.'ntation, for, pending the contract, lu' remains 
 the legal owner. Tiie fact of the vendoi- insuring under such 
 circumstances, ])eiiig an assignee in banki'uptcy, makes no ditfer- 
 ence from the case of an ordinary vendor." 
 
 134a. Reserving special property in goods sold.— In the 
 
 Nova r^cotia case of litiiiisei/ d' JL'rcli.. M. Ins. C"." a vendor. V., 
 who had supplied T. with goods under an agreement reserving to 
 V. a special property in them, was held to have an insuralile in- 
 terest, although he said on cross-e.xaminatiou that if the good> hail 
 been destrovi'il the loss would have fallen on T. 
 
 ;1 "I 
 
 * t^l 
 
 m 
 
 m 
 
 ' 15 (;.(', L'liy, Kcp. :!17. ■' HmI, s"c .sii/ir,, ij 1:!2, iiikI hifrti S VX\. ■' l.'i 1..N. I'.HI. 
 
 ^ 'I'odd V. Liverpool, elc, Ins. Co., IS L'.t;. (C.l'.) 11)2. 'I'liis c;isc was ufli rwiinls 
 iTVii'si.'d on appciil, hut not lU'oii iIh' K>'"t'''ill principle involved : jinit see Malliew- 
 son V. Hoyai Ins. Co., Hi L.t'..!. I.") ; Cliirk v. Weslein, i") I'.C. Q.H. lidil; Ilox. v. 
 I'l'ov. Ins. Co. .s'K/jyv/ S y.Vln. 
 
 Hurler V. Slandiinl I l.'.C. (Apii,). :H»I. 
 
 ' Ciozier V. I'lioidx '1 Han. (.New Hrnns.i, jki, and see sii/jki ^ I2S. 
 
 ■(!i!l V. Cauiidii Kiie 6'c Marine Ins, Co., 1 i). K. ;UI. and see l,e Soleil v. .\ll)y. 
 Dalloz .hir. (ien. A^s. Cass. ISliS, I, IIS. 
 
 M Knss \ Celd (Nova Seotia) 220. 
 

 204 
 
 INSURANCE LAW OF CANADA. 
 
 I 
 
 m 
 
 134b. Unpaid vendor— Compulsory purchase of premises.— 
 
 The plaintirt" insuivd his proniisos in the dofoiulant'.s office by a 
 policy which provided tliat their capital should l)e liable to pay to 
 the assured " any loss or damage by fire to the buildings" not 
 exceeding £1,000. The premises wore afterwards required by the 
 Metropolitan Board of Works under their compulsory powers, in 
 order that they might l»e pulled down for the improvement of a 
 street, and the amount of pui chase money payable to the plaijitiff 
 was assessed by arbitration, according to the Land Clauses Act. 
 After the board had accepted the plaintiff's title, but before he 
 had executed a conveyance, the premises were destroyed by fin-. 
 Held, that the defendants were liable to pay the plaintiff 
 ^1,500, the full value of the buildings at the time of the fire, and 
 not merely the damage done to the buildings considered as old 
 materials, for the dealings between the board and the plaintiff did 
 not affect the defendant's contract.' 
 
 131c. Interest of vendor— After sale.— The appellants granted 
 a fire policy to one T. on tlivers buildings and their contents for 
 .$8,280. In his written application T. represented that he was the 
 owner of the premises, while he had really previously sold tlieni 
 to S., the respondent, subject to a right of redemption, which riglit 
 T., at the time of the ap[)lication, had availed himself of by 
 paying back to 8. a part of the money advanced, leaving still due 
 to S. a sum of §1,510. Subsequent to the application and after 
 some correspondence, the respective interests of T. and S. in the 
 pro[ierty were fully explained to the appellants through their 
 agents. Thereupon a transfer was made to S. by T, the amount 
 thereof being left in blank and accepted by the ap[iellants. The 
 action was l)rouglit lor ^8,280, the amount of the insurance on the 
 building and effects. 
 
 Held, that at the time of the application for the insurance, T. 
 had an insurable interest in the property, and as the ai)pellants 
 liad acce^tted the transfer made by T. to »., which was intended 
 by all parties to be for $1,510, the amount then due by T. to S., 
 the latter was entitled to recover the said sum of §1,510, and that 
 8. having no insurable interest in the movables, the transfer miwle 
 to him by T. was not sufficient to vest in him T.'s rights under 
 the policv with regard to said movaliles.-' 
 
 ' (-:olliiiKri. !(■■.• V. Hoyjil KxcluiiiKf xVh.s. Co., :) y.B.I). 17;!. 
 - SuprtMiR' (lourt of Caniulii, Ottawa A^ricultiinil Itis. Co. v. Sheridii 
 1J7, C.I). m>, Q.H., '> L.X. -im. 
 
 S.C.It. 
 

 INSURABLE INTEREST. 
 
 20? 
 
 134d. Vendor and Vendee— Goods "in transitu."— The vendor, 
 so long as be has or retains right to stop in transitu, may insure. 
 
 The vendee, after the vendor's stopping the goods in transitu, 
 lias no insurable interest.' 
 
 135. Goods held in trust — Corn deposited with miller.— 
 
 A l)ailnient on trust implies that there is reserved to the Itailor the 
 right to elaini a delivery of the property deposited in bailment. 
 Wherever there is a delivery of proj)erty on contract for an 
 ecpiivalent in money, or some other valuable commodity, and not 
 for the return of the identical subject matter in its (original or 
 filtered form, this is a transfer of property for value, it is a sale 
 and not a bailment. Where, therefore, corn was deposited by 
 farmers with a miller to be stored and used as part of the current 
 consumable stock or capital of the miller's trade and was by him 
 mixed with other corn deposited for the like purpose, subject to 
 the right of the farmers to claim at any time an eoual quantity of 
 corn of the like rpiality, without reference to any specific bulk 
 from which it was to be taken, or, in lieu thereof, the market price 
 of an equal (piantity, on the day on which he made his demand, 
 with a small charge for general purposes : — 
 
 Held, that such a transaction amounted to a sale from the 
 farmer to the miller, and was not a bailment of the corn, and 
 entitled the miller to claim in respect thereof upon a policy of 
 insurance against fire as for his own pro^terty, notwithstanding 
 that such corn was not specifically insured, or described, as 
 required by the conditions of the policy, " Goods held in trust 
 and on commission," upon which condition the claim was resisted 
 by the insurers. - 
 
 135a. Merchandise on trust and commission for which the 
 assured are responsible.— A policy of fire insurance expressed the 
 insurance to be on " merchandise, the assured's own in trust or on 
 commission, for which they are responsible,"' in o; on certain 
 specified warehouses, vaults, wharves, etc. Whilst the policy was 
 in force certain chests of tea on a wharf included in the policy 
 
 1 Clay V. Harrison, 10 B. & C. cited in V,l L.\. 21 1. But ijucry ; for stoppiiKe in tran- 
 situ only nets to make ii lien. The vendee can get the goods afterwards if he ten- 
 der the price. 2 Kent C'onini. And the vendor after stoppage in triinsitii may sue 
 for the price. See Martindalc v. Sniitli, Benjamin on Sales, p. WKI. The elVect of 
 stoppage in tninsiiu is to restore the goods to the vendor's po.ssession, not to 
 rescind the sale. 
 
 ••'South Au.stralian Ins. Co. v. Randall It B.C. 101. 
 
 m 
 
 s 
 
 
 I 
 
 I 
 
 ,1 . I 
 
 I' 
 
li 
 
 206 
 
 INSURANCE LAW OF CANADA. 
 
 Ilillii 
 
 ^iil* 
 
 ^^lli 
 
 were det'troyed by firo. Tlioso toaw Imd been deposited in bond by 
 the importer witb tlie \vbariii)n-er. The assured liad pundiased 
 tliem troiu the importer, and the warrants had been en(h)rsed in 
 blank by him to the assured, lietbre tlie tiro oeeurred, the assured 
 had resold the teas in speeitied ehests to customers, and had been 
 paitl for them ; they held, however, the warrants on behalf o( the 
 customers, but merely for the convenience of paj'ing if required 
 the charges necessary for clearing the teas payable by such 
 custojuers. 
 
 Held, that the policy applied only to goods belonging to the 
 assured, or for which they were responsible, and the property in 
 the teas having at the time of the tire passed to the purchasers, 
 they were then at the purchasers risk, and were consequently not 
 covered by the policy.' 
 
 136. Perfect title not necessary— Frandnlent conveyance. 
 
 — Insurable interest does not depend ui)on a perfect title. '^ TJoth 
 vendor and vendee under a coiu'eyance which is frauduleiit as 
 against creditors liave insurable interests.' 
 
 137. Mortgagee— Assignment.— In 1877 T. held a policy of 
 insurance on his property which he mortgaged to W. in 1881, and 
 an endorsement on the policy, which had been annually renewed, 
 made the loss payable to W. In 1882 T. conveyed to W. his 
 equity of redemption in the property, and a few months after, at 
 the request of W., an endorsement Avas made on the policy per- 
 mitting the premises to remain vacant. The policy was renewed 
 each year imtil 1885, when all the policies of the insurance com- 
 pany were called in and replaced by new policies, that held by "W". 
 being replaced by another in the name of T., to which W. objected 
 and returned it to the agent, avIio retained it, The premiums were 
 paid by W. up to the end of 188(>. The insured premises were 
 burned, and a special agent of the company, having power to 
 settle or compromise the loss, gave to "W. a new policy in the 
 name of T. having the vacancy permit and an assignment from T. 
 to W. endorsed thereon and containing a condition not in the old 
 
 1 North Hritisli & Merc. Ins. Co. v. MotVatt 7 C'.P. '.^5. 
 
 - PottiRrow V. firaiid Rivor Fiinners' As.s., 28 IJ.C. (C.V.) "D ; MilliKJin v. Eiinit- 
 nblelns. Co.. 1(> U.C. (Q.ll.):!ll; Shcrbonneim v. Heavor Mut. Ins. Ass., :iO iil. 472, 
 1 May S7; Marks v. lliuiiilton, 7 Wells., Hurl & Gor. (Kxcli.) :f2:5. 
 
 ■'Li'ro\i V. Wiliiiarth, Allen (Mass.) :H2; Poltigrew v. Grand River etc., 2S 
 U.C. (C.P.)70. 
 
1 
 
 INSURAHLE INTEREST. 
 
 207 
 
 ^lolicY, iiamoly, that all cinlMrsenioiits or trainttTs woiv to l»o 
 aiitliori^od l\v tlie ofHt'e at St. John, X.l'., and sisriied by the 
 irt'iK'ral ai^ciit tluTc. The coiniianv haviiiii' ivt'iised iiaviiUMit, an 
 aotioii Avas hrouglit on the m-w policy a_ii;aiiist them and the asxent 
 wlio lirst issued tlie policy to T. was joined as a detendant, reliet' 
 being asked against him for breaeh of duty and false representa- 
 tions. The Supreme Court of Nova Seotia set aside a verdiet for 
 the plaintift" in such action and ordered a new trial on the ground 
 that his interest was not insured and that T. had no insural»le 
 interest to enable W. to recover on the assignment. On a])peal 
 from such decision to the Supreme Court of Canada : — 
 
 Held, reversing the judgment of tlie court below,' that the 
 company, having accepted the premiums from W. with knowledge 
 of the fact that T. had ceased to have any interest in the property, 
 they must be taken to liave intended to deal with W. as owner of 
 the property and the contract of insurance was complete.^ 
 
 138. Judgment creditor.— In New York and in Pennsylvania 
 a judgment creditor cannot insure specitic buildings of his debtor, 
 but it is otherwise in the Province of Quebec' 
 
 138a- Unprivileged creditor — No interest. — But a mere 
 chirographic creditor has no insurable interest in the stock in trade 
 of his debtor, and cannot hold a valid fire insurance thereon.' 
 
 139. Bill of sale of ship sufficient— Insurance by part owner. 
 
 — The deposit by the insured of bills of sale and documents 
 requisite for showing ownership of a vessel with the collector of 
 customs for registration is sutficient to give an insurable interest, 
 tlioush actual rey-istration be not made till after the <lestniction of 
 the vessel by tire. If this ln' not so, the insured may fall l»ack 
 upon any anterior title registered, from which he can deduce 
 insurable interest. Further, one of twii trustees, part owners, can 
 insure a vessel.'' 
 
 HO. Equitable interest sufficient. _ A lurnn fide equitable 
 interest in j)roperty, of whi<'h the legal title appears to be in 
 another, may be in>ured, provided there be no t'alse atHrmiitioii, 
 
 1 -M X.S. Kop. 487. 
 
 - WyiUiiii V. Iinporiiil Ins. ('o., Ki S.C.H. 71 
 intoiH'Mt of inortga^!;ue, see liij'rn ch. ^'ll. 
 
 1 1:J L.X. 2:15. ' llunl V. Homo Iiis. Co., '.', H.L. I'm 
 ■"' Mooie V. Home Ins. (Jo., 14 L.C). . .. 
 
 Vov other cases of insuriihlc 
 
 i 
 
 
208 
 
 INSURANCE LAW OF CANADA, 
 
 represontation or concciilriK'nt on tlie jiart of the innurcd, wlio in, 
 howevoi', not obliged to repreHcnt tlie particular interest he haK at 
 the time, iinlcKs eiupiiry Itc made by the insurer. Such in;^ural)l(!■ 
 intereHt in property i»t' whii'li the innured is in actual possession 
 may be proved by verbal testimony.' 
 
 111. Husband and wife.— In (.'larkc et ii.r. v. Firciaan'^ fns. 
 Co.,- the [lolicy was taken l)y a husbatid in his mime oidy, covering 
 the rurnitiire in a house described. The defendants said that the 
 furniture was really the separate jiroperty of the wife ; and it was 
 shown to be hers. It was lield that, nevertheless, the husband 
 might administer it and insure it in his own individual name ; that 
 he need not ileclarc the extent of his interest ; that, as to his 
 wife's dotal propt'rty, be alone has the administration of it, tliougli 
 the wife is the jirojirietor ot it; and as to her parapliermd ])roperty, 
 lu' has the administration of it also, unless the wife, si'parately, bu 
 administe.ing it. 
 
 A liusbaiid fan insure as his own tiie jirojierty ot the com- 
 munity existing betwi'cn liis wife and iiimseit!, and of whi(;h lie is 
 chief. Wives, if rntir'-huiii/cs /inlilii/itcs, (public traders,) may 
 insure their mi'r<'handise without their liusbamls' consent ; and a 
 wife, separated as to projierty from her husband, can insure her 
 projierty, lor sucli insurance jiassive is only an act of administra- 
 tion. As to married womi'U, (<immon as to property witli their 
 husbands, it is said by French writers that their contracts, 
 unauthorized exjiressly by their husbands heing null, they cannot 
 etl'ect an insurance, as they have not the administration of tho 
 eoiniaon pi'operty. in the Province of Quebec, an insuranci? 
 ellei'ted by such married wonuin is not null.' Husband and wife- 
 would be allowed to sue upon it. In modern Fram-e, l>oinlous(juie 
 says such a contnu't will lie held contirmed by the husband's 
 ratification express or iinplicd. In Louisiana an insiii'cr would not 
 be allowecl att»'r a tiic to urge that his wife's insurance was a 
 nullity.' 
 
 141a. Insurable interest in wife's property. A. effect((d in- 
 surance on C.'s property, on which he held a mortgage under 
 
 said 
 
 nii 
 
 W 
 
 I Wliytc V. HoiTic liiH, Co . 11 I,.('..I. :!(H : hut, ncu C.C. L.C , All . li.J71, wliiili 
 re(|Uir('n iiiitinc, of liiti'i'ONt to 1m! Hpetitli'd. 
 
 - All Anit'ficiiM (li'cisidii, citcil ill III l,.N. liliM. hw iiifrti v\]. viii. 
 
 ■' 'I'liis is .Iii(l)i;i' Miickiiy's (ipiiiinii, «'o 11! I^.N. 221, liiit. sue iiifrit S Mlc luntra, 
 
 ' lit 1,..N. 224. 
 
I' It 
 
 INSURAItLE INTEREST. 
 
 20!l 
 
 authority from and in the nan)e ot'C, with Iohs iiuyable to himself. 
 During the continuance of the policy the company notitied A. that 
 the iriKurancc would he terminated and advised liim to innuro 
 elnewhere. Such notice uIko stated that unearned premiumH would 
 bo returned, but no payment or tender of name was made accord- 
 ing to conditiouH of policy. A. took policy to agent of insurers, 
 who was also agent ot the W. Insurance Co., and left it with him, 
 directing him to pr.t risks in latter company. No receipt was 
 given, and property was destroyed by fire immediately after. 
 Company resisted payment on the ground that policy was sur- 
 rendered, and contended on tlie trial, in addition that C. had 
 parted with his interest in tlie i)r()perty by giving a deed to one 
 B., who had re-conveyed to C.'s wife, and that proper prool's of 
 loss hail not been given, claiming in reply to a plea of waiver in 
 regard to sucli proofs that such waiver should fiave been in writ- 
 ing, according to a condition in the policy. They liad refused to 
 return policy on demand. 
 
 Held, reversing the judginent of the court bolow, (Fournier, J., 
 diesenting) that C. had an insurable interc-st in the property at the 
 timeof the loss as the husband of the owner in fee atid tenant by the 
 courtesy initiate, and liaving had also an insurable interest when the 
 insurance was effected, the policy was not avoitled by tlKMlccd to B. 
 
 That the company, by wrongfully witliboldiiig tlm policy, 
 were (^sto[)|ied from claiming that proofs of loss hud not been 
 given ai!(!ording to endorsed condition, and were e(|iuilly estopped 
 from setting up the condition rc<(uiriiig waiver of such proofs to 
 be in writing, if such condition a|iplied to waiver of proofs ot' loss. 
 
 That the measur*! of damages recoverable by teiwint lor life ot' 
 the insured [ireinises is tlic full value of sucli premiscK to the 
 extent of the sum insured. 
 
 I'er Fournier, .!., dissenting, that the sending of a circiihir ity 
 tlie <;omjiany and compliance with its terms by the assured in 
 giving up tlu! policy to the company's agent was ii surrender of 
 said policy, and plaintill" therefore could not receiver. 
 
 Under the practice in Nova Scotia, where tin; wife is im- 
 properly joitH'd as (^o-[tlaintiff with the busl)and, the suit docs not 
 abate, but the wife's mime must be struck out of tluf record and 
 the case determined as if brought by the husband alone.' 
 
 ' Suprctiie (.!o>n'l of Ciinmlu, ('iilihvcll v. 'I'lu- ShKliiciPiiii l''irf iV IJfc Imh. Cn, 
 II S.CIt. 2lli. 
 
 14 
 
 1 1 
 
 '■■ 
 

 210 
 
 INSURANCE LAW OF CANADA. 
 
 illtiiji 
 
 141b. Insurable interest in wife's property.— In this last case, 
 Ritchie, C.J., in his opinion in the case on the snhjeet of insur- 
 ahle interest, said : " There can he no douht that a Imshand 
 has an insnrahk^ interest in his wife's property. Tlie hushand 
 has a freehold estate in the huid, and tlie exchisive right of 
 occupation ; an indefeasahle title to tlie land which no one can 
 defeat or distnrh, which tjives him a full and perfect title to the 
 rents and profits of his wife's real estate during the coverture, and 
 in the event of the hirth of a child he would enjoy said profits after 
 tlie death of his wife during his life ; and he is the proper person 
 to insure the property, for the wife can make no contract in her 
 own name to her own use ; and, if she could insure the propert}', 
 in case of loss, the insurance money so soon as paid would helong 
 to the hushand, inasmuch as the wife can acquire no personal 
 property in her own right, as any she may ohtain hecomes 
 immediately the pro])erty of the hushand. All that is required is 
 that the insured should liave an interest at the time of the insur- 
 ance and at the time of the loss ; and, as to that interest, while 
 there can lie no douht the party insured must have an insnrahle 
 interest in the suhject insured or lie can sustain no loss, and, thei'e- 
 fore, if the insured parts with his interest hefore loss happens, so 
 that he has no interest left at the time of the loss, he cannot 
 recover, yet if, pending the continuance of the policy and hefore 
 the loss lie acquires an interest, the policy, suspended while he had 
 no interest, revives.' 
 
 1410. Wife, common as to property, requires husband's 
 authority to insure. — A married woman in community .sokn 
 ■puissdiifc (III iiKiri cannot insure lier furniture without the authoriz- 
 iition of her hushaml, and the tiict that she has not declared her 
 status to the company voids tlie insurance.'' 
 
 142. Colorable transfer of mortgage. Tlie transfer, although 
 notarial, ot' a mortgage, the suhject of iiisiinince, does not destroy 
 the insnrahle inti'rest then existing, a counter h'tter sons sein;/ privS 
 from the transferer sliowiiig that the transfer was merely nominal.'' 
 
 The judgment in this case was reversed in tlu' Privy Council 
 on other grounds not pa.-*sing on this jioint.' 
 
 1 Ciililwell V. Stiulttcoim, V. & I,. I.C. {imu, 11 S.C.H.. J12. 
 
 •J ItoiiJ^spiiu V lloyiil In.M. ("o,, M.I-,U I S.C. Him. 
 
 ■•' Montri'iil Ass. Co. .V Mc(iilliviivy 8 L.C'.U., 101. 
 
 * Privy (Viuncll (I l-.C.Il., IHH ; IH Mooiv'.s I'.C. Hep. 87. 
 
 w 
 
:!i? 
 
 INSURABLE INTKREST. 
 
 211 
 
 143. Colorable lease does not affect risk.— A colorable loase 
 made to an individual for the purpose of constituting him a ware- 
 houseman upon whose receipts the goods assured would be dealt 
 with, does not affect the risk and void the policy of an insurance 
 upon certain goods assured, whether his own property, held on 
 trust or on consignment.' 
 
 1-14. Usufk'actuary — Institute — Orevee de substitution.— 
 
 A usufructuary has sufficient insurable interest to insure against lire, 
 but he can onl}' colU'ct thi' value of the interest which he proves.^ 
 Ami where the insured declared himself owner, and was really 
 institute ((jrevee de snhstitatmt) the policy was held good.' 
 
 144a. Usufructuary— proprietor— Where there is a usufruct, 
 the proprietor, wlio insures,' cannot recover beyond the value of 
 his property, deducting value of the usufruct. 
 
 145. Landlord and tenant— Obligation of tenant to insure 
 —Insurance by landlord— Option to purchase— Right to policy 
 
 moneys.— Under the terms of a lease the tenant was bound to in- 
 sure against tire and had an option of purchasing the property. 
 He insured in a sufficient sum. The premises were damaged by 
 tire and it then appeared that the hmdlord had a policy on the 
 premises in another office of which the tenant Inul no notice ; the 
 two offices apportioned the amount of loss between the two 
 policies and the lainllord received what was thus luiyable under 
 till' policy effected by him. The tenant shortly after the fire gave 
 notice to exercise his option of purchase and proposed that the 
 insurance miuieys under both policies should go in part payment 
 of the i>urchuse money. The lan<llord (>laimed to retain fiir his 
 own benefit the money received under the policy eflecte<l Ity him, 
 and insisted on tiie money under the other policy being applied in 
 reinstating the premises, and on the tenant deelining to do tliis, 
 brought ejectment against liim. 
 
 Held, that the landlord was not entitled to retain for his own 
 benetit the moneys received under the policy effected by bim, nor 
 
 if 
 
 
 itl I 
 
 I Privy C^uiiicil, l.ikiKuisliirc Ins, Co. i% (/'Impiniiii 7R. L. I", IH L, T, J. IKl, (not re 
 port I'd in 1*. C. .Vjip. Ckh.) 
 
 ^S|. Aniiuul & yiiolH'c Ash. Co., II H. L. 2", II Q. I,. U. l(l'2. 
 
 ' Mutuiil Fire Ins. Co. & Villcncuvo, I Q. H. H., :n<! ; M. L. R., J Q. !«., SO. 
 
 ■•in r..N. ;i'.ill. The \i.sufni('lniiry of a lionsi' i.s not to sliiiri' In llio inMiiranrt' 
 money roci'ivi'd after ttie hnrniuK of the lioii.se upon a policy tilkeii liy the niir 
 jiruiirii'fiiiir. Hesivnvon, '.id Kel>y., ISiWl. Aliinzel, ronfrti, Tome 1, No. UO, 
 
212 
 
 INSURANCE LAW OF CANADA. 
 
 ill 
 
 It 
 
 to insist on the moneys being applied in reinstating the property 
 after the tenant had exercised his option of purchase.' 
 
 145a. Landlord and tenant— Obligation of landlord to in- 
 sure—Option to pnrohase— RiRht to policy moneys— Conversion. 
 
 — Under the terms of a lease the landlord covenanted to insure, 
 and the tenant had the option to purchase for a fixed sum. Before 
 the time for exercising the option the buildings demised were 
 burnt, and the landlord received the insurance money. The tenant 
 then exerciised his option to purchase and claimed the insurance 
 money as part of his purchase. 
 
 Held, that under the circumstances the tenant had no claim 
 to the insurance money. The principle of Lawes v. Bennett (1 Cox 
 167) is not to be extended. Reynard v. Arnold (Law Rep., 10 Ch. 
 386) distinguished." 
 
 145b. Insurance by tenant.— In Quebec, as in France, a tenant 
 must pay his landlord's damage where the house occupied by the 
 tenant is burned by negligence, and where a house is burned the 
 tenant is presumed negligent.' 
 
 Such a toniuit can insure himself against the loss to which he 
 is exposed by a landlord's suit against him in such a case* 
 
 145c. Exemption of tenant in England-— In England, in case 
 of accidental fire and the destruction ot the leased house, the teiuint 
 at common law would have been guilty of waste if he neglected to 
 rebuild. But by 6 Anne, c. 81, made iierpetual by 10 Anne, it is 
 enacted that no suit ;*hall lie against any person in whose house 
 accidental fire shall l)egin, or recompense made by such person for 
 any danuige sufiered, except in case of contract between lessor and 
 lessee to the contrary. ' 
 
 If the K'sscc i'ovcnant to repair, and the house is burned l)y 
 accident or otherwise, lie is liound to rebuild.'' So it is common 
 to stipulate in leases against accidents by fire.' 
 
 146. Insurable interest on account of loss of rent by fire.— 
 
 Loss of rent through a house being burned is not a loss by fire within 
 the meaning of ordinary policies. By condition on many policies 
 Buch loss is declared not to be insured against. I5ut it may be 
 
 I Hcyimrd v. Arnold, 10 Kiiglish Cliy. Hop. :iWi, 
 •^ Kiiwnnls V. Wi-Ht. 7 KiikHsIi V\\\ . IJi-p, 858. 
 i'C.O. L. C. 1(1211. ■• i;tL. N., lil'J. 
 itConivn'JOl. " //;. Udl " l.'J I.. N. 211. 
 
INSURABLE INTEREST. 
 
 213 
 
 made by agreement the subject of insurance. Any person having 
 interest in rent may insure the rent from loss by tire, and he geta 
 paid in case of lost? from the time of the fire up to the time tixed 
 by the policy. 
 
 A rector of a parish in Quebec insured himself against loss of 
 his salary if his church were burned down. lie depended tor 
 income chiefly upon the pew rents. The church was totally de- 
 stroyed by tire, and the rector was paid by the insurers until it was 
 rebuilt.- 
 
 A railway company has an insurable interest in buildings 
 liable to be burned by sparks from its locomotives and tor which 
 injury the comi>any would be obliged to indoninify.^ 
 
 Rent may be insured by the proprietor : e. rj., on the rental 
 only of a house belonging to assured occupied by A, $400. This 
 insurance is payable only in the event of the house being damaged 
 or destroyed by lire so as to be untenantable, and the insurance 
 covers the rental of said house from the time of the tire, during the 
 period necessary for its reinstatetnent, or of perfect repnir, not 
 exceeding one year's rent.' 
 
 147, Insarable interest of proprietor on account of liability 
 to indemnify neighbor— In France anil Quebec, a projirietor wlio, 
 in case of a fire in his house, may bo held lial)le to indemnify his 
 neighl)ors for the losses of their houses burned by the fire commu- 
 nicating to them, can insure not only bis own bouse but also liuu- 
 sclf against losses to which he is exposed liy theoiieration of actions 
 in warranty of his neighltours.' 
 
 148. Claim by postponed bondholder— Reinstatement— Rent 
 of mortgaged premises.— The pursuers having a heritable security 
 by bond on certain premises insured them against tire in the 
 defenders' otHce for £!)0(). Prior securities had been givi'ii by the 
 owner upon the same premises to other creditors and those , 
 creditors bail insured in otlu'r otUres. The pi'cuiiscs having been 
 in part destroyiMl by fire, the prior inrumbrancers recovoi-tMl from 
 and were paid by the oiHces in wliith they were insured an amount 
 sufficient for the reinstatement of the premises and lor the ])aynient 
 of the rtMit during the period of reinstatement, but the premises 
 wore not in fact reinstated." 
 
 'IML.N. 2tl. J/-/. III. 
 
 " Si'c iiIho .tiii)r(i i lilth, 'I'M' & '^\. 
 
 '/«/. 
 
 ItK 
 
 
 III 
 
 1 •: 
 fii 
 
 
 
 \l 
 
;) 
 
 
 \i'i' 
 
 lllllilit 
 
 214 
 
 INSURANCE LAW OF CANADA. 
 
 It appeared that immediately before the date of the fire the 
 vahie of the premises was sufficient to cover the prior bonds and 
 that of the pursuers, but in consequence of the tire the vahie of 
 the prem^ises was so reduced that they were not sufficient to meet 
 the balance remaining due to the prior creditors and the pursuers 
 bond was left entirely uncovered : — Held, affirming the judgment 
 of the Court of Session (14 Court Session Cas. 4 Series, 947) that 
 the pursuers were entitled notwithstanding the amount paid to the 
 other creditors, to recover to the full extent of their loss. But held, 
 reversing the judgment of the Court of Session, that the pursuers 
 were not entitled to recover anything in respect to the loss of rent 
 of the premises after they had been damaged by tire. Semble, per 
 the Earl of Selbourne, and Lord "Watson, that 14 Geo. 3, c. 78, s. 
 83, relating to the application of insurance money on houses 
 destroyed by tire does not extend to Scotland.' 
 
 149. Innkeepers.— An iinikeeper may insure the value of his 
 own and travellers' goods, for if lost he would be held responsible 
 for their value.- 
 
 150. Pawnbrokers.— A pawnbroker, being liable in Quebec 
 and in France, has an insurable interest. Goods in pawn are 
 generally recpiired to be insured as such.' 
 
 151. False bidders. - In Quei)et' a fol encherisseur may insure 
 for his own benetit, but once the re-adjudication has taken place at 
 his foUe enehh-e, if tbe house burn the comi)any is fre(% for the 
 insured is dispossessed.^ 
 
 152. Borrowers.— The borrower of a thing nniy ii\sure it. 
 The loan of it being for his sole advantage, if it be lost he lias to 
 pay, and negligence is to be presumed against him, at least in the 
 Province of Quebec' 
 
 153. Beneficiary heirs.— A beneficiary heir may insure, so also 
 may tutors, assignees of a bankrupt's estate, churchwardens and 
 trustees, and the cestui que trust,'' but though the trustee insure, the 
 cestui que trust may, by the condition, be the person to get the 
 money.^ 
 
 I Wi'stniinstor Fire Olllcc v. (ilasKow I'rovt. Invest. Sol-., IH Englisli App. Ciis, 
 cm. -DawBon V. Cramney, cited in llUi.N SM. ' 13 I,.N. 237. 
 * la I.. N . ZW, and hou .Slrey, A.I). 185(1, p. Jol. ■ IH I,..S. 230. 
 « Hill V. Sccrulan, cited in 13 L. N. 23(1. 
 " M. L. I! . 1H.V, Urown v. H. Ins, Co., cited in 13 L. N. ZW. 
 
 If 
 
INSURABLE INTEREST. 
 
 215 
 
 151- Insurance for owner without his authority.— A iiorsoii 
 may insure in his own name the property ot another for the henetit 
 of the owner without the hitter's previous authority. 8uch 
 insurance will enure to the party's interest intended to be protected, 
 upon his subsequent adoption of it, even aftera loss. And so, 
 Judge Mackay is of opinion, it is in Quebec' 
 
 155. Insurable interest in prospective earningrs or profits.— 
 
 One having an insurable interest in property may also insure the 
 prospective earnings or protits likely to grow out of that property. 
 Of this nature is the treiiuent case of insurance on freight. It is 
 necessary, however, tliat such interest should be insured specitically 
 as such.- 
 
 In England and the United States, even inchoate interests 
 arising from executory contracts of sale, and expeetauides founded 
 on subsisting titles, like protits and troight, have l)een frequently 
 held insurable interests.' 
 
 As to profits or freight, the Quebec law allows them to be 
 insured. 
 
 155a. Insurable interest in expected increase in value.— 
 
 If there be an insurance on goods, the present value of which is 
 £5,000, but it is expected that the value will rise, an<l an insurance 
 is therefore eftected for £(3,000 in case of the value rising after- 
 wards, and the goods being burned when worth that sum, probably 
 that increased value can be claimed, though the real cash value at 
 the date of the policy was only £5,000. Hut if the goods at the 
 date of the fire be worth only £4,000. tiie insured cannot recover 
 more than £4,000. ' 
 
 155b. Insurable interest in thing not in existence or not 
 yet acquired.— Goods not in existence at the date of the insurance, 
 but meant to be, or to be acciuired afterwards, may be the subject 
 of insurance. 
 
 A policy covering tor twelve months goods in a shop covers, to 
 the extent of the sum insureil, any goods ot the insureil put into 
 the shop and lost by fire within the twelve months. 
 
 ' 13 L. N. 'SMi. On pent fiiire le biou il'une iktsoiuu' iV sun insu. Henoliciuni vnl 
 etiiviii invito prodt'sse. Hut seo C. C. L. C. I04H it sim). 
 
 ••' Ablmtt V. Schor, H. Johns Ciis. ;«); Him-iiiy v. Cousins, 'd Flast, ."ilJ & C.C.Ii.t'. :i571. 
 
 ■' Coluinhia Iuh. Ok. v. Liiwrencf, 2 IViors l.'il ; Mc(iivni'y v. Fire Ins. Co., 1 
 Wend. iC>; /Ktnii l<"iie Ins. Co. v. Tyler, 12 Wend. 507 ; Iti id. ;18.') ; Himcox v. Fishing 
 Ins. l^o., H Sumner VA'i ; Hiircliiy v. Cousins, cited in ll» L. N. 11>">. 
 
 * C. C. I.. C. 241W, 
 
 ■ Vi L. N. 100. 
 
 Ill 
 
 
 ]H 
 
 ' ; 
 
!«ti 
 
 216 
 
 INSURANCE LAW OF CANADA. 
 
 In the case of B. A. Ins. Co. v, Joseph,^ Joseph insured " house- 
 hold and smith's coals contained in" a certain yard, for twelve 
 months, for .£1,000. No quantity was mentioned. At the date of 
 the policy only 500 chaldrons were contained in the yard. These 
 were added to. Afterwards, from spontaneous combustion, 853 
 chaldrons were burnt. The insurance company, sued by Joseph, 
 pleaded that the original 500 chaldrons remained unburnt and that 
 the tire had been caused by the other coals, uninsured, having been 
 placed there wet. 
 
 The courts held that the policy covered the coals at the date 
 of it ill the yard and the others that were put there afterwards. 
 
 156. Subsequently acquired interest— Renewal merely a 
 continuance of original contract. — J., the manager of appel- 
 lant's firm, insured the stock of one S., a debtor to tlie firm, in 
 the name and for the benefit of the appellant. At the time of 
 effecting such insurance J. represented appellant to be a mort- 
 gagee of the stock of S. S. became insolvent and J. was ap- 
 pointed creditor.^' assignee. On March 8th, 1876, S. made a bill 
 of sale of his stock to J., having effected a composition with his 
 creditors under the Insolvent Act of 1875, but not having the 
 same confirmed by the court. The insurance policy was renewed 
 on August 5th, 1876, one year after its issue. On Jaiuiary 12th, 
 1877, the bill of sale to J. was discharged and a new l)ill of sale 
 given by S. to the appeUant, who claimed tliat the former liad 
 been taken by J. as his agent, and the execution of the latter was 
 merely carrying out the original intention of the parties. Tlie 
 stock was destroyed by fire on March 8th, 1877. An action hav- 
 iiig l)een brought on the policy, it was tried before Smith, J., 
 without a jury, and a verdict was given fin* the plaintifis. The 
 Supreme Court of Nova Scotia set aside this verdict and ordered a 
 new trial on the ground that plaintiff had no insurable interest in 
 the property when instiraiice was ctt'ected, and that n(» interest 
 subsequently acquired would entitle him to maintain the action. 
 By the practice of the court a verdict for the defendant could not 
 l)e entered. 
 
 Out' of the conditions of the policy was "that all insurances, 
 whether original or renewed, should be considered as made under 
 the original representation, in so far as it may not be varied by a 
 
 M»L C.U. IIH. 
 
t- i 
 
 INSURABLE INTEREST. 
 
 217 
 
 new representation in writing, which in all cases it shall bo incum- 
 bent on the party insured to make when the risk has been changed, 
 either within itself or by the surrounding or adjacent buildings. 
 
 On appeal, the Supreme Court of Canada held that the appeal 
 should bo heard. 2. That tho appellant having had no insurable 
 interest when the insurance was ett'ected, tho subso(iuently acquired 
 interest gave him no claim to tho benefit of tlie policy, the re- 
 newal of the existing policy being merely a continuance of the ori- 
 ginal contract.' 
 
 157. Assured ftirnishinK goods on board a vessel. — The 
 
 assured in another case, by an arrangement with the charterer of a 
 schooner for a trading voyage from Xova Scotia to Labrador and 
 back, were to lurnish the greater part of tho cargo and were to 
 have complete control of all the goods put on board the vessel 
 until it should return, when the return cargo was to be disposed 
 of by the assured, who wore to pay themselves for their advance, 
 to pay over any balance remaining to a third party and others. 
 In tradiTig on tho voyage this party and others were not to dis- 
 pose of any goods on credit, Imt were to bring Imck such goods as 
 they could not dispose of, so as to o])tain a return cargo in lieu 
 thereof. There was a contention that the assured wore iniu'oly 
 unpaid vendors and had no itisurable interest. It seems that the 
 evidence upon which the Insurer relied to sustain this contention 
 was that of one of tho assured, that "■ if the goods had been lost 
 on the voyage to Nowfoumlland without insurance, the loss, I 
 suppose, would have been Tuppor's (the third party)." Ritchie, 
 C. J. in the Supreme Court of Canada, said : " I cannot see how this 
 can possibly aftoct in any way tho liability of tho insurers to the 
 assured. The latter had supplied Tupper, and no doubt looked to 
 him personally h)r payment, as well as to the goods over which it 
 was agroeil that they should retain tho control for the purpose of 
 securing such payment. But whatever may have been the rela- 
 tive liabilities of the parties as between themselves, it is (piito 
 clear that the assured had such a claim on these goods supplied 
 and shipped, as on the goods acciuirod and shipped in good order 
 and well-conditioned during such trading voyage, as would have 
 been enforceable against Tupper had he endeavored to dispose of 
 
 i^t 
 
 I 
 
 m 
 
 HI 
 
 ' Howiird V. The Lancashire Ins. Co., 11 S.C.R.. 0:i., referred to suprn S 1-7 
 
 i'l' 
 
niTT 
 
 218 
 
 INSURANCE LAW OF CANADA. 
 
 tliem and divert the proceeds from tlio assured, ooutrary to the 
 terms ot'tlie agreement.' 
 
 158. Insurance on joint account.— Where several persons 
 are jointly interested and a poliey is taken out on their joint 
 account, it is not sufficient to state the interest of one of these 
 persons ouly.- 
 
 It is said, however, that if a person owns a fourth of a thing 
 oidy, but insures it generally, he will only recover to the extent of 
 his interest.'' 
 
 158a. Co-heirs. One of two co-heirs insuring a house as 
 owned by himself has been held entitled to recover only half the 
 loss. 
 
 If one co-heir can be considered agent of the others, he should 
 not use his name alone as owner.' 
 
 158b. Tenants in common.— An insurance by one of several 
 tenjvnts in common will not protect the shares of the others; each 
 of such tenant's interest is distinct from his co-temmts' interest.'' 
 
 A joint tenant has an interest in the entirety entitling him to 
 insure it, hut unless he insures expressly for all the tenants, he can 
 only recover his own part of any loss." 
 
 159. Partners. -A partner may have an insurable interest in 
 a building purchased with partnership funds, although it stands 
 upon land owned by the other partner.^ 
 
 160- Stockholders.— A stockholder in a corporation may in- 
 sure his interest in the factory against loss by fire. 
 
 161. Reversioners.— Sellers having right of redemption {f<ic- 
 ulte lie reiiien') may insure ; but, in Quel)ce they must specify their 
 interest.'-' 
 
 162. Minors.— Minors in France and in the Province of Que- 
 bec may insure. 
 
 According to Pardessus, if a minor does not i^ay the premium 
 and the insurance expires without a loss having occurred, the 
 
 ' Mcrcliant-s' Murine Ins. Co. of Cimiula v. Kmnsoy (ISSI), !1 S.O.B. r>77. 
 
 - Bell ft al. V. Ansby, cited in IH I^.N. i'io, juul see C.C.I..C. 2.')71. 
 
 ' [(I. ^ fil. ■' l:< tj.N. 2:<5. '' I<l-, and see Page v. Fry, 2 Bos. it F. -IW. 
 
 ' Converse v. Citizens' Mut. Ins. C:o., per Sliaw, Ch. .1., elted in \-i L.N. tli. 
 
 X Wanen v. Davenport K.I.C., cited in l:( ],.N. 1^21. » Vi L.N. 22;i. C.C.L.C. 2.j71. 
 
INSUBAliLE INTEREST. 
 
 219 
 
 
 
 I'oinpaiiy ciiiiiiot, owing to tlio (|Uiilitio(l iiiillity of a iniiior's ccm- 
 tnut, L'olli'ct the |nvinium. Boudouscjuii'u and others sav to the 
 contrary, unless tlio oontraet lias hcen unfair.' 
 
 163. Insurable interest for advances made on property.— 
 
 An assured made advances to another upon a vessel tlien in the 
 course of construction ujion the faith of a vi'rhal atjrei'iuent with 
 tlie latter that after the vessel should he launched she should he 
 placed in his hands for sale, and that out of the [iroceeds the 
 advances so made should he paid. When the vessel was well 
 advanced, the assured disclosed the facts and nature of his interest 
 to the agent of the insurer, and the insurer issueil a policy of 
 insurance against loss hy tire to him to a certain amount. The 
 vessel was still unfinished and in the other's possession when it 
 was hunu'd. There was a conteiititni that the assured had no 
 insurahle interest. Ritchie, C. J. in the Supreme Court of Canatla, 
 sjieaking for the court, said : " A court of eipiity would recognize 
 an equitahle security on the pro[ierty for the a<lvances and would 
 enforce an approi)riati()n of the property for their reimhursement ; 
 for it would he the grossest fraud for one [larty to refuse to pertorni 
 after performance hy the other, and the ground of the doctrine ot 
 j>art performance is tVaml. That this agrei-ment, though hy i)arol, 
 and the advances made under it, i-reated an eipiitahle charge on 
 this i»roperty and gave the assured an eipiitahle interest therein, 
 principle and ninnerous authorities clearly estaldish, and it is in 
 my opinion eipialiy cK'ar that if such e(piital)le interest existed it 
 was an insurahle interest."'" 
 
 164. Employer and employee — Interest of assignee.— 
 
 Master and servant nuiy insure each other's lives.'' In a (Juehec 
 case' it was held hy tlu' Court of Ajipcals that where thi' a[ipli- 
 cant was unahle to pay the premium, an<l another ])arty as a 
 matter of sjieculation and without having any interest in the life 
 of the applicant paid the iiremium and took a transfer of the 
 policy, prepared hy anticipation in the name of tlu' applicant, the 
 polii-y in the hands of such person was void. Ihit the riupremo 
 Court of Canada reversed this ruling' and held that as the ap[»li- 
 cant had intended to ett'ect a. ImiKt f'ulc insurance tor Ins own l)ene- 
 
 1 l:{ L.N. •>S\. - Clarke v. Scottish Imporial Ins Co. (IST'.ti. 1 S. C.K., I!I2. 
 •' May, Kl'.lc. J Vt-zina v. N. Y. Lifu Ins. Co., 25 L. C. ,1., l!;t2. 
 •■/(?.,t!.S. C. R.,:«i. 
 
 
 
 i 1 
 
 uhn 
 
 ' i 
 
m 
 
 w. 
 
 m: 
 
 m^ 
 
 iiifc 
 
 •220 
 
 INSURANCE LAW OF CANADA. 
 
 fit, and as the contract was valid in its inception the payment of 
 the premium, when made, related back to the date of the policy, 
 and the mere circumstance that the assignee, who did not collude 
 with tlie applicant tor the issue of the policy, had paid the pre- 
 mium and obtained an assignment did not make it a wagering 
 policy. 
 
 165: Interest of payee or beneficiary.— Upon the (piestion 
 whether a man may insure his own life for the benefit of another 
 who pays the premiums, the jurisprudence in England' differs 
 from that in the United States.-' In Canada the case of Vezina 
 vs. N. Y. Life Ins. Co.* is consistent with the English ruling 
 to the effect that the insurance cannot be nominally effected by a 
 person on his own life really for the benefit of another who pays 
 the premiums and to whom the policy is assigned. The mere 
 circumstance, however, that some party paid the premiums would 
 not per se V»e sufficient evidence that the insurance was not for the 
 benefit of the person in whose name it was effected. A man may 
 insure his own life himself by paying the premiums for the benefit 
 of another who has no insurable interest' or he may transfer it to 
 that other." 
 
 166. Life policy, a valued policy.— A life policy is almost 
 always a valued policy, but not necessarily so." 
 
 167. Creditor insuring debtor's life— Insurance in excess of 
 debt.— In a noted Eiifflish case^ a creditor, who had a running: 
 account, insured his debtor's life to secure the balance which might 
 be due him. The insurance was for more tlmn the balance due at 
 death, but the balance only was paid."* 
 
 167a. Payment of debt not necessarily anindemnifica.ion 
 of creditor.— It does not follow that because the debt is paid the 
 creditor is indemnified. He has been paid in so far as the original 
 debt is concerned, but he has not been indemnified in so far as the 
 new debt contracted bv the insurers to the insured is concerned. 
 
 ' Porter's Laws of Insunince, 39. - May 112- 
 
 ■' 25 L. C. J., 232 and t> S. C. K. :iO., cited siqyra § 1(14. 
 
 ■» See remarks of Ritchie, C. .1. in Vezina v. the New Yorii Life Ins. Co., (i S. C. H. 
 at p. 44 and see recent case of Hill v. United Life ''s. Ass. {imi) 154 Pil. St. 2!) foUowin 
 Scott V. Dickson 108 Pa. St. (>. •''' Id,, and Porter's Laws of Insurance 10. 
 
 « St. John V. Am. Mut. Life Ins. Co., 2 Duer (N. Y. Supr. Ct.) 419. 
 
 " Bruce v. Garden, 20 L. T. R., N. S. 1002 and 22 id. 59.-|. 
 
 >< And see C. C. L. C. 2592, and see infra Ch. VII. 
 
INSURABLE INTEREST. 
 
 221 
 
 •( 
 
 Tlie unnual piiymoiits of premiums are the equivalent and a profit 
 benidert of the total sum which tlie iuHurerg agree to pay at the 
 death of the debtor. So that, although he has l»ecii paid the debt 
 subsequeutly to that time and before suit brought the original 
 debt was paid by the debtor's executor, yet, as the debtor had in con- 
 templation of law and according to the understanding of the 
 parties and possibly in point of fact, in the meantime paid to the 
 insurers sums of money, which in the aggregate amounted to a sum 
 equal to that he received from the debtor, he would suiter a total 
 loss, unless the insurers should pay him the amount of the policy. 
 It does not hinder its being a contract of indemnity tiiat insured 
 has already or may later get sometliing from others.^ 
 
 The doctrine that a creditor may claim from an insurance 
 company, although the debt has been paid, applies to contracts of 
 life insurance only. 
 
 167b. Insurance by creditor— Amount of policy in excess 
 of debt— Recovery of the excess of premium paid.— A creditor 
 obtained an insurance on the life of his debtor for an amount 
 srreatlv in excess of his real interest. Both the creditor and the 
 agent of the insurance com^tany were ignorant that such extra 
 insurance was invalid. 
 
 Held, that the insured was entitled to recover the excess of 
 premium paid on the larger sum, and that, in the absence of proof 
 to the ctjntniry, the court would assume that the premium for the 
 smalU'r sum was proportioiuU to that paid for the larger sum.' 
 
 168. Assignment of life policy to party with no interest.— At 
 
 the time the applicant applied for insurance on his life and the 
 policy was executed, he etfected it bona fide for his own benefit aiul 
 as the contract was. valid at its inception the payments of the 
 premium when made, had relation back to the date of the policy, 
 and the mere circumstance that the assignee (the insurance having 
 been effected without his knowledge and there being no collusion 
 between the i)arties) paid the premium and obtained an assignment, 
 did not nudce it a wager policy.'* 
 
 169. Action by surviving partners.— The life of J. S. Mc- 
 Lachlan was insured against accident as one of the members 
 
 ' >rav, IK), ati(i see infra i lH.'i. 
 
 "Q.H., FiO Ion& Lanca.shire Life Ass. Co. & Lapierre, 1 L. N. .506, and see 
 C.C.L.C. 2.->il:; 
 
 ■' Veziiia v. New Vork Lite Iii.s. Co., <) S. C. R. 3n, referred to su2)ra S 104. 
 
 n 
 
 m 
 'hi 
 
mn 
 
 u 
 
 222 
 
 rNSUUANCE LAW OK CANADA. 
 
 Ik 
 
 of tho firm of McLachlaii Bros. & Co., tlio insurers ((lefoiidaMfs^ 
 uii(lert!ikiii<r to pay tlio sum of |10,000 witliiii tiiiioty days attcr 
 the (loath of oiio of the persons named in tiie policy, to the 
 surviving representative of the firm. By one of the provisions ot 
 the poliey it was stipulated that, when a luemher left the firm, 
 the insurance should cease on his person. .1. S. McLachlan ceased 
 to he a partner seven months liefore Ins death hy drowning, and 
 the dissolution was tluly registered. In answer to one of the 
 questions suhmitted, the jury found that tlie firm was dissolved 
 " hut J. S. McLachlan had a continued and active interest in the 
 " business." Held: that thcinstirancje, as far as J. S. McLachlan 
 was concerned, lapsed at tlie date of the dissolution of the partner- 
 ship and the fact that lie continued to have an interest in the business, 
 did not entitle the other iiartners to maintain an action upon the 
 policy.' On appeal, however, a new trial was ordered in this case 
 on the ground that the verdict of the jury did not pass \)[)on the 
 real question in the ease, luimely, whether or not McLachlan had 
 quitted the firm." 
 
 170. Right to make policy on one's own life payable to 
 any other person— Not affected by statute on wager policies.— 
 
 The statute, 14 Geo. III., c. 48, enacts : 1. That no insurance shall 
 he made by any person or jHU'sons, bodies politic or coriiorate, on 
 the life or lives of any person or persons, or on other ev(>nt or 
 events whatever, wherein tlic person or persons for whose use or 
 benefit, or on whose account such policy or policies shall be nuide, 
 shall have no interest, or by way ol gaming or wagering ; and 
 that every insurance nuidc contrary to the true intent and meaning 
 of this Act shall be null and void to all intents and purposes wiuit- 
 soevor. 2. That it shall not be lawful to nud<c any policy or 
 policies on the life or lives of any person or pi'rsons, or rtlicr event 
 or events, without ins(>rting in such policy or jiolicics the name or 
 names of the nerson or nersons interi'sted tlierein. or I'oi 
 
 I' 
 
 I' 
 
 benefit, or on whose account, sue h [lolicy is so made or underwrit- 
 ten. J5. That ill all cases when tlic insured liatli an interest in sucli 
 life or lives, event or events, no gi^atir sum shall be recovered or 
 received from th(> insuno- or insurers tlnui the amount or value of the 
 interest of the insured in such lit'eor lives, or other event or events 
 
 I Mcl^acliliiii V. Accident Ins. ("o., of N. A., M. I,. If., t. S. C. JilT) 
 '■" at I,. ('. .1. ta, M. L. It. II Q, n. :«», and see us to imrtncisiilp intcivHl, Stilhniin v 
 Agricultural Ins. t'o., UK). It. 115, and Kluln v. Unl >n I'iiv Ins. ('i>, :i (). It. 'SM. 
 
 iind 
 
 \W± 
 
INSURAIU-E INTEREST. 
 
 228 
 
 Held, affirinnig tiie judi^moiit of tlu> court l)cIow, that thin 
 statute never wan iiiteiukHl to ]»reveut a person from etfectini;; a 
 bomi fide insurance on his own lite, and making tlie sum insured 
 payahle to whom he pleases, sueli insurance not l)eing " l)y way of 
 gaming or wagering" within the meaning of the tirst section of 
 the A t. 
 
 Ilehl, also, that section 2 of the said Act applies only to a 
 policy on the lih> ol' another, not to a policy hy a man on his own 
 life.'" 
 
 171. Amount of life policy received by curator to insolvent 
 estate may be claimed on behalf of wife.— The amount of a 
 policy ot insurance upon the life of a hushand, the preiuiums o: 
 which have heen paid hy him and which luia ])een received hy tu'j 
 curator to his vacant estate hy reason of insolvenc^y, may neverthe- 
 less he claimed on hehalf of the wife hy two trustees who a(^cepted 
 the (h)nation of the amount of such pohi^y of assuramte, made hy 
 the contract ot marriage, for the purpose of paying overthe interi'st 
 to the wife and the i»ri.nci[»al to the children, notwithstanding that 
 the doiKition and assignnu'Uts were not noted upon tiie hooks of 
 the company, notification having heen given in a place other than 
 the place where the insurance was etlected.- 
 
 172. Insurable interest in the life of a step>sister.— Tint 
 
 Court of Queens Bench, in a recent case of insurance upon the lif*! 
 of a child, the assurcd's step-sister, evideiKHi heing given of a 
 promise made hy the assuriMl to the mother of the child to taki' 
 care of the child and lu'lp to nuiintain it :nel<l that the assiired had 
 an insurahlc interest in the child's life, and wasentitU-d intheahsemje 
 of any ohjectioii as to the amount in tti(t«!X[iendcd hy luT, to recover 
 the amount of the policy.' Lord Coleridge, C .1., said : "in carry- 
 ing out her undertaking (to maintain the child) the assured might 
 have hail to pay for the edui'ution and maintenance ol the child, 
 pdssihiy also for its hurial. In that state of eircumstanei^s, it is 
 said thiit the assured had no insiirahle interest in tint child's life. 
 Now, 1 agree that tlie insnrahle interest must he a pi'cuniary 
 interest and that inti'rest must he in e.xisttdice at the time when 
 
 ' HupnMiic t'oiirl of ('iiiiailii, Norlli Am. Life Ahm. Co. v. (Iriilncii, l;t.S.C.|{. '.iTS, 
 iukI MCI' \'c/iiiii V. Now Yorli Life Ins, Co., miprii S 1(11. S(hi hNo (K) N'ic. c. 'M ((),> 
 
 - .SpliTM V . Ally (ictil., II l„C.|{, l.">0. 
 
 ' Hiiriu'N V. l.otKloii, ICiliiihui'Kli & (iliisgow Iiife Iii.h. Cu. (IKI)l), Kngii.sh L. It, 
 IS1I2, 1 I). 11. Sdl. 
 
 h.\ 
 
 \ ;■ J; 
 
 
 .Mi 
 
IP 
 
 %h- 
 
 ijiM«sgs T ^ 
 
 
 SI^Ull; 
 
 
 
 '- if' 
 
 
 m 
 ■ t 
 
 t : 
 
 
 224 
 
 INSURANCE LAW OF CANADA. 
 
 the policy is effected ; that is perfectly clear upon the authorities. 
 Is there such a pecuniary insurable interest hero ? I think there 
 is. The expenses to which the assured undertook to put herself 
 for the maintenance of the child were, as I have said, not expenses 
 which she was bound to incur ; and in my judgment the assured 
 undoubtedly had an insurable interest in the child's life so far as 
 to procure repayment of the expenses incurred by her. I cannot tind 
 that anything has been said to a contrary effiect. Taking the ordin- 
 ary course of business as the guide to determine the law, I should 
 have thought that it was a matter of common knowledge that obli- 
 gations of this sort were obligations, repayment of which was habi- 
 tually secured in this way. In my judgment the assured had an in- 
 surable interest in the child's life at least up to the amount of the 
 payments actually made by her on the child's account." Smith J. 
 concurring said : " No doubt the contention of the (insurers) is 
 correct, that unless the (assured) had a pecuniary interest in 
 the cViild's life at the time the contract of insurance was 
 made, the policy would be void under the statute. I think, 
 however, that the (assured) had such an interest. A man 
 can insure the life of his debtor. For instance, suppose an 
 agreement by a debtor to pay his creditor one thousand pounds 
 by successive monthly instalments of one hundred pounds, the 
 creditor could insure liis debtor's life, and at his death recover 
 in an action on the policy against the insurance company. In the 
 presetit case there is sufficient evidence of an undertaking on tbe 
 (assured's) part to incur expense in maintaining, bringing up, and 
 perhaps in burying the child. This decision does not trench on 
 the cases in wbicb it has been held that a father has no insurable 
 interest in the lite of bis son. There is an oliligation in law on ii 
 father to nuiintaiii liis son. There is no such obligation bore, but 
 an undertaking to incur expense ; and I can see no reason why the 
 (assured) having incurred and incurring such expense, has not a 
 pecuniary insurable interest to the extent of each sum of money as 
 it WHS Kuccessivi'ly expended ]»y her forthe child's ]»encfit, of course 
 so long as tlic total anunmt does not exceed tbe amount of policy." 
 
 173. Testamentary exeoutors.— A life insuraiici' policy is a 
 moveable, and as such is payable to the testamentary executor of the 
 deceased.' 
 
 Arcliiiml>«uU .t Citi/.oiis' Ins. Co., :) L.N. 11(1, and :il l-.CI. UWS.C. IWHO. 
 
INSURABLE INTEREST. 
 
 225 
 
 ■ 
 
 
 
 
 ! J 
 
 
 ' t\ 
 
 i 
 
 
 i 
 
 
 174. Friendly societies— Name of beneficiary need not be 
 inserted.— An insurance by a niombor of a friendly Kociety tlierein 
 effected under 13 & Vic, c. 115, ,s 2 doop not tall within 14 Geo. 
 III., c. 48, 8. 2, and does not tliorot'ore require to have inserted the 
 name of the person for wlioso benefit it is eftected.' This is under 
 the English Act. 
 
 175. Insurance effected with intent to murder.- A recent 
 Ontario decision affirmed the principle that one who insures 
 another's life with intent to murder him and obtain the benetit of 
 the policy cannot recover.- 
 
 176. Recent American Decisions— Insurance on the life of a 
 partner— Distinction between " assured" and " insured "—By the 
 
 terms ot policies issued by the company against which an action 
 was brought, the company promised and agreed "to and with the 
 said assured*' to pay the sum assured to the said assured, his 
 executors, administrators, or assigjis," etc. The case was befor*' 
 the Supreme Court of the United State. The policy was applied 
 for and issued to one of the partners of a firm on the life of his 
 jiartntM', on ai'count of the failure of the latter to comply with his 
 engagement to contribute an amount of money to the (lapitai ot tlie 
 firm. The ipiestion considered by the court was, whether the 
 term " assured" used in this policy meant the payee or tlie life 
 insured. Justice Field for the court said : '• The contention of the 
 plaintiff is, that the words " the assured" in the policy apply to the 
 person for whose Itenefit tlie policy was etlected. . . , and not 
 to the party whose life was insuied. There are undoubtedly 
 instance's where this distinction between the terms "assured"' and 
 "insured" is obsi-rved, though we do not tind any judicial <'on- 
 sideratioii of it. Tlu' apjilication ot either term to the [nirty for 
 whose benefit the insurance is cth-cted, or to the party whose life 
 is insured, has generally dt'itendiMl upon its collocation and context 
 ill the [lolicy. We arc of o|iiiiioii thai, reading the policy here in 
 connection with the declaration and the answers of (the ii|iiilicant) 
 which t'orni a part ot it ami indicate the olijecf of procuring il, the 
 ti'rni '• assured" must be held as appli<'able to him for whose benefit 
 it was etlecteii. The poliey considereil in .Ktna Lih' Ins. Co. v. 
 
 I Atkiii-on V Alkln.-inn, (Cliitly, .1., IHii.M, KiiKiMi W.N., IM, :i. 
 '•' Hendi'i'sliott v. Oovenunt iMiit\i:il Iii'«. Co., Court of .Viipeikln, Out , Jml 
 Miirili, 1S117, 
 15 
 
 \ 'i 
 
 m 
 
 m 
 
 H ■ 
 
226 
 
 IN'SL'llANCE LAW OF CANADA. 
 
 ■ '. i 
 
 Franco 94 XT. S. 5(31 gives some support to tliis view. There the 
 policy was effecti'd l)y a l)rotlior tor a sister's bonetit aiul (lie term 
 " assured" was iield to apply to the sister, tor she recovered in a 
 suit brouifht in connection with her husband on the policy. The 
 attention ot the court does not appear, howi^ver, to have been 
 directed to that term. It nniy be said, also, that there could be 
 little doubt as to its proper aiiplication in thiit case, as it was 
 tbllowed l)y tiie words, "and her executors, administrators, or 
 assigns," thus linuting it to the sister. In other rcspocts the 
 langUiigc is substantially iilentical with that ot the iu'licy nndiT 
 i\)iisideration."' 
 
 177. Insurable interest of an endorser on an acoommo- 
 dation bill.- An en(hirscr of an accommodation bill has an insur- 
 able interest in the goods tor which the bill was given, if it has bei'U 
 agreed that be shall be paid out of the proceeds of such goods. ■ In 
 the American cast' of (_1 rant's nihiiinistratur.s v. KVme'' a cri'ditoi' 
 hn- §;?00, who had paid about .SoOO on abandoned jiolicies on the 
 life of lli^ ilebtoi', insured it again ibr .So, 000 and receiveil the 
 wholi' umouiit, which the courts allowed him to hold against the 
 repieseutatives of the debtor on the ground that the evidenci' did 
 not show the insurance to be mei'ely collateral, that the dispro- 
 portion did not rendi'r the policy a wager, and that it was lu'ithei' 
 illegal nor immoral h)r the creditor to assure the sums he had 
 fruitlessly i)aid on other iiollcies on the same lite as well as thi' debt. 
 
 178. Where no insurable interest, a wager policy,— In the 
 
 absence of any insurable interest whatever the law will presume 
 that a i)olicy was taken out for the pur[iose ot' a wager or specu- 
 lation.' 
 
 178a. Assignee without insurable interest.— A policy ot 
 insui'aiice on the life of another taken by one who had an insural»le 
 interest in it I'or the purpose of assigning it to another who had no 
 such insurable inti'rest, and which |iurpose was ettected, has been 
 held by the Supreme Court of Pennsylvania to nnike the policy 
 in the hands of th(> assigni'e a wagering policy ujion which an 
 
 action could not be nniintamci 
 
 1 Com. Milt. I-ifo liiH. Oi. V. Inclis, (I88'J), 1(W V S. 4l»S. 
 
 IMvit'H V. Ileum' liin.. A V. (i. (App.) ;itHI. 
 
 ll.T I'a. SI. (US. 
 
 < Uiiiti-d HrclliiTii M\it. .\l<l .S(.c. V. .\Icl)oiial<l (IS8.S), \>t I'li. .St. ■.\-:\. 
 •'' KcyNtoiu- .Mut. lU'ii. .\.SN. V. Norrls UH«1), lir> I'li. .St. Ud. 
 
INSURABLE INTKRE.ST. 
 
 007 
 
 179. AsBignment of life policies,— The l:u\ in soino ot' the 
 Stiitos roganling assigmneiits of lite jiolicies is very dittl'iviit fnnu 
 that in Cuiiachi, conseiiuoiitly American decisions on this point are 
 n<it a[iiilieal)h' to Canadian eases. 
 
 179a. Fraudulent cancellation of assignment.— W!iei-e a 
 liolii-y wasassigned h_v tiie henetieiaries to one wiio liad no insnrahh' 
 iiiterest in the Htl' insnred, slie atterwartls markeil the assii>-nnient 
 *• cancelled" and returned the policy to the heneticiarics, tiie 
 iiis\ii-ed liaving died. Tlie l)enetieianes then tor a certain siun sohl 
 ir and assignetl to a third [larty. The Kansas Snpreine Court held 
 that tlie assiginnt'nt lirst nuule to one with no insurahle inteivst 
 was a wagering contract and tliat it was nn attcnipTcd fraud uiu>n 
 the coni[iany for her to return it to the heneticiaries in the manner 
 thiir slie did in wliicli the l)oneticiaries were partici['iints, ami lliat 
 thi second assignee standing in their pl;ire. eouid not- maintain 
 an action u[ion the policy.' 
 
 179ta. Assignee must have insurable interest.— Tlie Alahanui 
 Supreme Court has adopted tln^ rule that where a poli(y of life 
 iu'^urance is assigned during the life of the insured, the iissignee 
 must have an insurahle interest in the lil'e oi- he c'anmit rei'over ; 
 tiuit the assignment of such a policy to one having no expectation 
 ofhenetit ov advantage from thv coiitiiniauce of the life of the 
 insured founded on i)ecuniary relations, or those of hlood (U* 
 marriage, to one who is intt'rested in the death ot the insured 
 rather than in his life, is open to all the ohjcctions which exist to 
 the issue of the [xiliey originally to such person.* 
 
 180. Policy on one's own life payable to one not a relative. 
 
 — The Illinois Sujirenie Court has lu'ld that tlie insurance of one's 
 own lite, for the henetit of one not a relative was not void on 
 grounds of puhlic policy, as tendi?ig to encourage the commission 
 ot crime, and that, if It were, no one imt the insurer could raise tlu' 
 iiuestioii.' 
 
 181. Assiernee having no insurable interest, policy held a 
 wager. It has hoen iield l)y the Sujuvme Court of the United 
 8tiites that a person who has procured a policy of insuratu'c on his 
 
 I MiHHioii Viilley Life Ins. Co. v, McCnini (ISHTt, :m Kiui. 1 ti'. 
 
 ■J AlivlHimii Uold Life ItiH. Co. v. Mobile Mut. Ins. Co. {[^m, HI Ala. Iliili. 
 
 I JoliiiMon V Villi Kpp, (IHHl) lltt III. .")Jl 
 
 ! i" I! 
 
W' 
 
 ■I 
 
 
 
 
 
 i 
 
 
 i 
 
 l!J;--,: 
 
 
 
 228 
 
 INSURANCE LAW OF CANADA. 
 
 l' 
 
 n 
 
 life cannot assign it to parties who have no insurable interest in 
 his life.' They said in this case : The assignment ot a jiolicy to a 
 party not having an insurable interest is as objectionable as the 
 taking out of a policy in liis name. jS'or is its character changed 
 because it is tor a portion merely of the insurance money. To the 
 extent to which the assignee stipulates for the proceeds M' the 
 policy beyond the sum advanced by him, lie stands in the position 
 of one holding a wager policy. The law might be reaiiily I'vaded 
 if the policy, or an interest in it could, in consideration of paying 
 the [jreiiiiums and assessments upon it, and the promise to pay 
 upon the death of the iissured a portion of its proceeds to his 
 representatives, be transferred so as to entitle the assigin-e to 
 retain the wliole insurance money." 
 
 Tlie contention that, if the contract was an illegal ont'. the 
 representatives of the insured could not have a standing in court 
 in a suit jigainst the assignee who has received the proceeds of the 
 policy on account of the insured's }iarticipation in tlie transaction, 
 was disposed of l»y the Court as follows: " Although the agree- 
 ment between the assignee and the insured was invalid so tiir as it 
 provided for an al)so1ute transfer of nine-tenths of the proceeds ot 
 the policy upon the conditions named, it was not of that fraudulent 
 kind with respei-t to which the courts regard the jiarties alike 
 culpable, and refuse to interfere with the results of their action. 
 Xo fraud or deception upon any one was designed by the agree- 
 ment, nor did its execution involve any moral turiiitude. It is awo. 
 which must be treated as creating no legal right to the proccrds of 
 the policy lu'yon<l the sums advanced upon its security : and the 
 eiuirts will therefore iiold the recipient of the monies bcyoinl those 
 sums to account to the representative (jf the deceased. It Wii« law- 
 ful fin- tlie association to advance to the assured the ^uiii> payalde 
 to the insurance company on the policy as they became iluc It 
 was also lawful for the assured to assign the policy as security tor 
 tlicir payment. Tlic assignment was oidy invalid as a tnin>tt'i' of 
 tjic proceeds ol a policy beyonil wliat was rc([irn'c(l to rcfuiid those 
 sums of interest. To hold it valid for the whole proct'cds wor.ld 
 be to sanction siieculative risks on liuinan liie, am! encouraire tiie 
 evils for which wager jiolicies are coudeniiu'il." 
 
 182. When a life insurance is a wager Policy on one's 
 own life may be made payable to any one.— The rule in Ijlinols 
 
 Warnock v. DiivIn (IHSI), i<W I'.S. "'<. 
 
I>i>'v 
 
 t'l 
 
 INSURABLE INTEREST. 
 
 229 
 
 is similar to that in Canada. The Siipicine Court of Illinois lias 
 declared those rules in a ease before them involvin<»- these same 
 questions : 
 
 A policy taken out on the life of a third person ]>y a ln'iii;- 
 ficiary, the latter having no pecuniary interest in the life of the as- 
 sured, is a wager policy, and as such is void, [)uhlie [loliey forliidding 
 om- persfdi who lias no interest in tlie contiiuianee ot the life of 
 another of speculatini!; on that life l)y jiroeuriiifr a policv of insur- 
 ance thereon without the knowledge or consent of the iiisui-ed. 
 
 A person having, however, an insurable interest in his own 
 life has a ■•ight to procure a policy on the same and have it made 
 payable to anyone whom he nniy ap[)oint, alrliough the beneficiary 
 designated may not have any iiecnniary interest in the continuance 
 of the life insuretl. And when, under a charter of a mutual beiietit 
 association, a memlter thereof may take out a policy on his own 
 life and devise such [)olicy to a stranger, there was no reason why 
 he might not liave a policy ma<le payable to the jii'oposed bene- 
 ticiary directly in lieu ot doing the same thing by appointment in 
 a will,' They turther held in that case that where a Mutual 
 Benefit Association voluntarily (Altered into a contract nt' insurance 
 upon the life of a member for the benefit of oiu^ not expressly 
 authorized or [irohibited from becoming a beneticiary, which 
 was not contrary to public p(dicy aixl received all the p.remiums 
 thereon, it would not be allowed to defeat a recovery ni the policy, 
 at the suit of the beneficiary, by claiming that the contract on the 
 part of the association was nUm vires. 
 
 183. Assiernment of policy on one's own life to third party 
 legal— Continuance of interest of creditor in debtor's life not 
 necessary— Payment of debt not terminating policy.— Si net; the 
 above doctrine was declariMl by the Suprenu> Court of the Uniti'd 
 States, there has been a well discussed case in the yu[ireme Court 
 of Mississi[»pi in which that court takes a view contrary to that in 
 New York and similar to the Canadian view. 
 
 They said : "The weight of reason and authority, we think, 
 is against tiiis view. There is an (divious ditiereiice In'tween the 
 two transactions. Ft is contrary to public policy for a person to 
 insure a life in which he lias no insurable interest, and to derive 
 benefit and advantage theri-tVoni. This is condemned as gaming 
 
 
 \ 
 
 ;;! 
 
 '! • H 
 
 IS 
 
 I ninomitinlon Mm, Hen. As'^. v Mine (IS.ST), l:i(»[ll. 121. 
 
[Iff 
 liiii 
 
 I 
 
 
 230 
 
 INSURANCE LAW OF CANADA, 
 
 ■m 
 
 or wagoring on tho chances of hummi life, and as such is ])rohibite(] 
 by law. lint it its lawful for ono to inHure Imh own life, and after 
 he has dune so the policy becomes his own if payable, as in this 
 case, and there is no reason why he may not sell or dispose of it, 
 as he may of any other chose in action, if the policy was valid in 
 its inceittion. 
 
 An insurable interest in the assured at the time the policy is 
 issued is essential to the validity of the policy, but it has been 
 often decided, as when a creditor takes out a policy on the life of 
 his debtor, that it is not necessary to the (iontinuance of the in- 
 surance that the interest in the life insured should continue. Ces- 
 sation of interest, payment of the debt in the case supposed, would 
 not terminate the policy. 
 
 If the danger to life is not adequate to avoid a policy in such 
 case when the interest in the life insured ceases, it is not perceived 
 wliy it should be deemed sufficient to invalidate a contract by 
 which a policy is sold and assigned to one without interest. 
 Besides, the protection should not be overlooked which is afforded 
 to the life insured by the doctrine that one cannot recover insur- 
 ance money payable on the death of a party whose life he has 
 taken by felonious means. It would be a reproach to the law of 
 the land if he were allowed to do so. lie could not, in fact, do 
 so, iiny more than he could recover insurance money on a building 
 which he liad v.'ilfully set tire to and burned." ' 
 
 184. Amount of policy disproportionately in excess of debt 
 declared a wagrer policy Insurable interest of a creditor.- The 
 
 rule that a i)olicy taken out by a creditor on the life of his 
 del)tor ouglit to lie limited to the amount of the <lebt with interest 
 and the aniuuiit of premiums with interest thereon, during the 
 expectancy ol'the life insured, according to the Carlisle tables, has 
 been enforced by the Supreme Court of TVnnsylvaiiia. In this 
 particular case they held that wliere the dis[iroi)orti(iu belwc'cii 
 the amount of the policy taken out l)y a creditor on tlic lifi> i»i a 
 debtor and the debt Thereby secured is xrry great, as I'm' instanc'. 
 where the insunince may be three thousand dollars and the debt 
 one hundred dollars, ir would l)e the duty of the court to declare 
 the transai'tion a wager as a (piestion of law.- 
 
 ' ^Iiirphy V. Kcd (1*'87). (il Miss. (111. iiiiil see tiii/irii § ](!7ii. 
 ■•^ CoupiT V. SliiiL'n'iT, Adiiir. (I'n. issT), 11 All. lit]). '>iK 
 
INSURABLE INTEREST. 
 
 231 
 
 185. Cessation of interest.— The ronnsylvaniii Supremo Court 
 has lu'ld that, wliere one has an insurable interest at the time an 
 insurance is eftected upon the life of another for liis benefit, the 
 fact that his interest ceased to exist at or prior to tlie death of tlie 
 insured will not, as against the personal representatives of the in- 
 sured, deprive him of the right to receive the insurance money.' 
 
 186. Insurable interest for reimbursement of expenses.- 
 
 The insurable interest in the life of the insured of one neither a 
 relative nor a creditor, insuring the life ot another for his benefit, 
 though conceded to be in good faith, and for the honest purpose 
 of reimbursing him for the outlays wViioh he might be called to 
 make under an agreement with the insured to support him during 
 life, has been limited to the amount that he actually ])aid for the 
 support of the insured, or which he advanced in money, or other- 
 wise, in fulfilment of his contract. Such an amount, and the 
 amount expended tor the insurance and for all legitimate expenses 
 including interest, he was allowed to retain from the i)roceeds ot 
 insurance, and the balance adjudged to the estate of the insured.'^ 
 
 r- 
 
 l¥ 
 
 \i 
 
 '. ';ii 
 
 ' Appeal of Corson, Exr. (im)), li:t Pa. St. CW. 
 ■^SeiKrist, Admr. v. Schnioltz {\m\), 118 Pa. St. 320. 
 
 
 i' 
 
 H.:l 
 
 
 '1'' 
 
 
 i 
 
IP 
 
 li 
 
 i 
 lit 
 
 i'; 
 
 CTIAPTKR VII. 
 
 INSURANCE BV MOUTGACKK OH HYl'OTHIX'AKY (. KKDITOlt. 
 
 1ST. Monr(iA(;i:i: IS not i:niii i.i;i) ru 
 HK ini)i:mnikii:ii kkom two wuakikks. 
 
 188. MouT(iA(ii:ii IN iiHiTisii lOi.r.M- 
 
 ItlA .Mrvr UK NOTII'Ilil) OF C.VNl Kl,- 
 LATION Ol'" OH CHAN(iK IN I'OI.IIV. 
 
 189. SUBKOOATION I'l.AI'Sl-; - I>IS- 
 t'HAKUl': OF MOKTCACi: IIV I'AYMKXT 
 OK INSIUANIK CLAIM TO MOHTIJ A(i KIOS . 
 
 190. iNsrilANCK MONKY MI'SI' UK 
 Al'IM,Ii:l) KOK I'Hl'; HKNKI'IT OK Till-: 
 .MOHTliAllKK. 
 
 101, Loss I'AVAItl.K TO MOHTCAiiKKS - 
 CON.SOI.IDATIO.N—ASSKiNMKNI' 111' MOHT- 
 (!A(iK— SUHKOliATION. 
 
 h)2. MoKTCACK cLArsr; as adoi-tki) 
 
 IIV (ANVDIAN I'lUK INSflt.VNt I-; lOM- 
 I'ANIDS. 
 
 li>;{. M.mi'DAol-: I i.Ai'sK — i:i'Ki;ci' oi' 
 — loNDirioN Ol' i'oi.K'\ iNTi;iu:s'i' oi' 
 
 .MOlSTlwVliKK NOT TO IIK IN V AI.I MATKI) 
 BY Al'TS OK MOKI'liAdOK— SUHHOdATlUN 
 
 --ukti!!i:mi;nt ok i'autneh iuotaininc 
 an 1nsikaiii.i-: inti'ikkst not a 
 
 HKKACII OK .STATI'lOllY CON l>ri'ION — 
 .NOl'ICK TO A <'l,i;iiK OK INsritlMi -.NON- 
 (OMMINICATION OKOTHKI! MOKT(i AUKS 
 — COMUIIHTrOHY NKI.I.KiKNCK OK IN- 
 SUHEU -NON-ASSKNT TO I'UKllt IN- 
 SURANCKS -KOKKCl.OSUlf];. 
 
 104. Kkkki'I' ok 1 (ivKNANT to INSllli: 
 
 IN MOKTUAIiK IJICKI). 
 
 111."). MUHTIiAdKH NOT llor\l)l'0 MAKK 
 IMIOOKS OK LOSS— MOIlI'dAllKK ItKLIKX 111) 
 KItOM TlIK CONSi;ylIK.VCi:S OK AS- 
 SI'UriD's NliliI.ECT— Sl'llHOOATIO.V. 
 
 imi. InsII!AN< i: HV .MOIi'l'OACi: 
 
 ciu;iii I'oit IS Kou HIS OWN sKcruri'v 
 
 ONLY. 
 
 197. MoimiAllOK NOI' KNTITI.IOI) TO 
 CLAIM KlIOM ASSKiNOK TKl!.' l)I8(M(AK(li: 
 <M' I'UK MOHT(!A(il:. 
 
 1!H Loss I'AVAllI.K TO MOHTcJACKi: — 
 MOUTUAUIJk's INI'KHKST not AKKKCTKl) 
 IIY AC'IS OK OWNint OK I'KOl'Kli 1' Y 
 COMI'A.NV'S ASSLNT TO ASSU; \.\1 KNI'. 
 
 MAKKS A NKW CONrHA( I' ANH IS 
 IXilllVAI.HNI I'll KKNI'NCIA riON OK 
 ALL I'llK CONIUTIclNS OK I'OLK Y. 
 
 1!)!). Till-; IIVl'OTllKCAItV ( I.AIM MKSI' 
 UK SK( CHKI) IIV TllK I'llOl'KIIT V. 
 
 2(10. FiKi; iNsritANCK as ski i itriY 
 
 KOU I.OA.N. 
 
 201. ClIimXiUAI'lIAKY ( KKDirOHS. 
 
 202. MolM'liAliKK MUST STII'IM.A'I'K 111 
 
 iiAVi: iii;nkkit ok insuhanck. 
 
 •Mi. I, OSS I'AVAIll.h; TO MOIiriiAliKK - 
 HItKACU OK CONDITION OK INILICV. 
 
 201. Cask WHi;iii: moim'oaijiok's i.n- 
 
 riOISKSI' CKASKS. 
 
 20."). INSCHAIII.K IN'TKIIKSI' coniinu- 
 I.Mi AKTKU MOlM'WACo:! II.VS SOI.Il 
 I'KOI'Klfl V. 
 
 2l)li. CLAIM I'All) 1!V CI.Ml'ANV I V 
 
 KXCKSs (IK Monc(;A(n: uoks to DKHI'OH. 
 
 207. l.IKK INSriiANCK -I,II:N 1(11! 
 
 i'llKMii'MS I'AIll. 
 
 2.)S. LiKK INSfKANCi: -SAIA Alii: I'UK- 
 MICMS -UKIMIIUIISKMKN'I'. 
 
 200. LiKK INSritANCl.' MOKl'liAliK HY 
 IIKI'OSII' MKATII 111 \SSrHKII~-IIIS- 
 
 I'KNSINi; WITH LK(.AI. I'KIISONAI. UK 
 I'llKSKNIAl'IVK — I'KIIIItnV. 
 
 210. Uecknt ^mkkican decisions— 
 i:kkk("1' ok moki'oaok ( i.acse. 
 
 211. CONI'KACT l.N TlIK IM'KUIlsr OI' 
 .MOHTlJAIiKK- DISTINCIION IIII'l'W liKN A 
 l>OI.IC\ COVKllINIi MOlM'liAOKK's IN- 
 TKKKSr AI.ONK, AND A POLICY IN 
 .MOI{Ti;A(iOIt's NAMi;, liUT LOSS I'AV- 
 Alll.K TO MOHIIIAIiKK As HIS INlKKKsT 
 MAY AIM'KAK — OIIIKIi INSCHANCE 
 Wri'HOCl' CONSK.NT OK (. (l.M I'A.N V. 
 
 212. iNsrUANCK KOIt MdKI'dAliK 
 CHKDIIdK -OTHKK INSUKANI K MOUT 
 liAOKK INSlIltlNIi HIS OWN INI'KHKSl' 
 AI.ONK -I'OI.Il'Y I'AYAIII.K To " CHK- 
 liri'OK AS HIS INTKHIIST M A Y A 1'1'KAU " 
 
 WAIVKlt OK ('O.VI)I THINS BY I'AYMIIN'I' 
 INI'o I OCHT -CKKIll rilll MfS'l' SHOW 
 i:Xl'KNI' dl'' HIS IN TKIIKSI' - t ON'l'HAlT 
 sl'IMMi r I'd CKKDri'oUs' n.AI.MS. 
 
fl 
 
 INSURANCE liY MORTOAOEE OE IIYPOTIIECAKV CREDITOR. 
 
 23:3 
 
 187. Mortgagee is not entitled to be indemnified from two 
 quarters.— It is said tliat under Hiiijlisli law, while the mortiiai-oi' 
 is not entitled to the benefit of the mortgagee's contract, the 
 niortagee is not entitled to l»e indeinniHe<l from two (quarters.' 
 And there is authority for this view in the United States also.- 
 The question is one of some difficulty, but in so far as our courts 
 in Canada have dealt with it, it would appear that in (Quebec a mort- 
 gagee who has insured property and reeeivod tlie value from an 
 insurer cannot recover from a mortgagor (after he has been paid by 
 the insurer) on the prineiple ot ihe civil law " hmii/ fides hdh />nfi(iir 
 III l,is iili'ii) e.rhpintur.^'-^ 
 
 TheEnglish law would let him recover where he paid the 
 prenuums out of his own pocket under eircumsiances which did not 
 <Mititle him to charge them to the mortgagor, but he would so 
 recover for the benefit of the insurers who would be entitled on 
 payment to be sut)rogatt;d in his rights, independently of sti[)U- 
 lation to that effect.' 
 
 Tlie Quebec decision in Archamliault k Lamere above referred 
 ' I and based on the French law went on Imna P''les, but while it 
 iirevents the mortgagee from taking with both hands, it is o[K'n to 
 criticism as giving the mortgagor the benefit of a securitv fi)r 
 which c.x hi/pothesi he did not and could not be made liable to pay 
 and to some extent would seem to go counter to the ruling prin- 
 ciple of insurance, — ui(le)ii)n'f>j.'' The Civil Code of Lower Canada 
 gives to the insurers subrogation in the rights of the insured 
 against the person by whose fault the loss occurred." It has been 
 lujld in (Jueboc that a creditor who takes out a i)olicy of fire 
 insurance for his own jirotection and at his own expense on his 
 debtor's property is not bound to account to the <lebtor for tlie 
 portion of the insurance money paid to him uikUm" such policy and 
 remaining as a sur[ilus above the amount required to extinguish 
 the debt," But this decision was questioned in a later case in 
 
 appeal.'* 
 
 [t has been held in Ontario that the creditor wiio has with.out 
 
 any express or implied agreement with his debtor insured to pro- 
 
 ' Porter's Laws of In.s. 221. - May 45S)(i. 
 
 ■' ArchiiinbiulL & Limcre 2 Q, B. U. }>7, )l'\ L. C. J., 2*i, -) L. \., 2!)». 
 
 ■• Porter's Laws of Ins, it") 
 
 •' II). 225, but SCO as to life ins. hifrii. « 0. C. L C. 2r.St. 
 
 ■ Ari'liniii))ault v. (iiiliiriu'au 22 L. C. J., 105. 
 
 •* Arcliambiiult & Lamere et al 2(i L. C. J., 2;«!, 2 \i. B. K. 07, 5 L. N. 2M. 
 
 i 
 
234 
 
 INSURANCE I.AW OF CANADA. 
 
 1^; 
 
 ill 
 
 tei't liis daiin, at'ti'r n'li'iviiii; his iiirtdraiico idoiniiify inuy still 
 l»rocee<l to nn-ovor lii> lUht." 
 
 188. Mortgagree in British Columbia mnst be notified of a 
 change in policy.— In 7'ritisli Coluiiibiii, in cuses wlioro the loss is 
 |iiiyjililc' to a inoftiTagci' witli tlu' conijiany's constMit. it has bot'ii 
 spei'ially enat-ti'd hy the Lt'<;islatinv" that tlie poKu'V cannot ht? 
 i:aiK-c'lk'(] (ir dealt with without notice to tlie inert ii-aifce. And 
 proots ofh)ssmay be maile by the mortgagee.' 
 
 189- Subrogation clause— Discharge of mortgage by pay- 
 ment of insurance claim to mortgagees —Mortgagees of real 
 estate insured tlic mortgaged property to the extent oftlieir claim 
 thereon under a clause in the mortgage l)y which the mortgagor 
 agreed to keep the property insured in a -sum not less tlian tlie 
 amount of the mortgage, and if lie faihd to do so that the mort- 
 gagees might insure it and add the prom'.um paid to their mort- 
 gage debt. 
 
 The policy was issued in the nuMie of the mortgagor who 
 paid the premiums, and attached to it wa-* a condition that when- 
 ever the company should pay the moit^jgees for any loss there- 
 under, and should claim that as to the mortgagor no liability 
 therefor existed, said company shou'd 'ie subrogated to all the 
 rights of the mortgagees under all securities held collateral to the 
 mortgage debt to the extent of such payment. 
 
 A loss having occurred the compi.ny paid the mortgagees the 
 sum insured and the mortiirafr(»r cbimod that his mortgage was 
 discharged by such paymenr. The lOinpany disputed this and 
 insisted that the}' were subrogated to the rights of the mortgagees 
 under the said condition. In an action to compel the company to 
 give a dischage of the mortgage : 
 
 Held, per Fournicr. Taschcreau & Gwyne, .1.1., that the in- 
 surance etlectcil by the nuu'tg'^ees must l.)e held to have been si> 
 effected for the bcnetit of the mortgagor under the policy, and the 
 subrogation clause which was inserttMl in the policy without the 
 knowledge an<l consent ot the morti;a<^oi could not have the eti'cct 
 
 of converting the policy into 
 
 one 
 
 insurinsf the interest of th 
 
 mortagees alone ; rhut the interest of the mortgagees in the policy 
 
 ' McPherson A I'roudfoot 2 C. V. I'. C. .">7. RusscU & IvuhertNon, (i I, 
 M.'Int(.sh .t Out. I);mk 2(i Cliy. -Jl. Port it's Laws of Ins., ;i:i(i:i2H. 
 -ns Vic. I'. 22 {U. C.) ■ l(J. 
 
 1 i;i. 
 
INSURANOi: I!Y MORTGAOKE OB HYI'OTHECARY CREDITOR. 
 
 235 
 
 wiiB tho Slime as iftliey were asHigneeH of a policy effected witli the 
 mortgagor, and that the payment to the mortgagees discharged the 
 mortgage. 
 
 Held also, that the company were not justiticd in paying the 
 mortgagees Avithout tirst contesting their liahility to the mortgagor 
 and estahlishing th<'ir indemnity from liahility to him, not having 
 done so they conld not. in the present action, raise any qncstions 
 which might have afforded them a defence in an action against 
 them on the policy. 
 
 In the resnlt the decision ol" the Court of Appeal (15 App. R. 
 421) and of the Divisional Court (14 O. R. :}22) was afHrmed.' 
 
 190. Insurance money must be applied for the benefit of 
 the morteragree — l^romissory notes for the purcliase money of 
 •roods were secured hv a eliattel morts^age <riven on hehalf of the 
 purcliasers containing a covenant to insure for tlie l)enctit of tlie 
 mortgagee, who discounted the notes with tlie plaintifts and 
 assigned the chattel mortgage, hut did not transfer the insurance 
 to them, the loss under which was payahle to himself. The policy 
 was afterwards n-newed hy the purchasers' firm, but it did not 
 appear that the renewal was assigned to the inortgagee, or the loss 
 made payahle to liim. Suhseciuently a tire occurred and the jmr- 
 chasers' firm assigned the insurance money to the plaintiffs, with 
 whom they kept an account, as security for their general indehtccl- 
 ness, and the plaintiffs received and api)lied it on the notes above 
 mentioned, but afterwards sought to aj)ply it in jiaymeiit of otiicr 
 indebtedness of the [Kirchasers. 
 
 Held, that the phiintiffs were bound to ajiply the insurance 
 money for the lienefit of the mortgagee, wVio was the e([uitable 
 assignee of the policy under which the money was paid, ami 
 entitled to have it applied in payment of the notes, to p;iy wliicli, 
 as between him and the iturciiasers. it was primarily appiii al))!'. 
 and the plaintiffs took the money, siibji'et to the e<|uitable I'ighlsof 
 the mortgagee, of which tlu'v liad notii-i'.- 
 
 191. Loss payable to mortgagee Consolidation. — Tiie 
 owner of a parcel of land mortgaged the same, an<l sul)se(|iieiitly 
 mortgaged it tt) the same person again, the second mortgage con- 
 taining lands, on whieb were buildings, and also a covenatit To 
 
 1 ' i 
 
 ' Supreme Conrl of Caiui'la, The Iiiijieii il l''iif liis, Co. v. Hiil!. IS S. C. K., (Ki?. 
 '•^ Western Hank v. Court cniMnilie, 'Si O. R., IIW. 
 
 ,1 
 ill, 
 
nr" 
 
 ii:u; 
 
 INSrUANCK LAW OK CANAIlA. 
 
 11' ' 
 
 ) 1 
 
 iiisurc. 'I^lu^ iiioi'ti^'iiLCor siilK('i|ii"iitly iiiiido iiii ;issi<;-mii('iil I'or (In- 
 hciidit, of liis ci'cdifors iiiiil tlio t'(|nil v of iT(|.Mii|ili<iii was sold by 
 Ills iissiii'iicc. tlic [iiircliiiscr (•ovciiiiiitiiii^ In ]iiiy mH' tin' iiioi'tixau'i's. 
 'I'lii- |iiircliiiscr then iii.-iiii'il the Imildiiii;^ iiirlndcd in tlic second 
 niort iiiii;i' in liis own niinie. "loss, il'iiny, |iiiy;d>li' to tlie nn)r!- 
 Lian'ci's as llicir intci'cst mi^'lit a|i|iiai",'" snlijeet to the conditions of 
 tlic innriuim'c clause. 
 
 A lire look place hy w liicii the linildinii's in the second inorl- 
 HaH'e were desti'oyed, the insurance moneys payahle lieini;' more 
 lliaii siillicient to pay tlie lialaiicc due on tic second morli^ane, 
 which was in default, and the luort^a^ce claiine(| the riii,hl fo 
 apply the surplus in |iaymenl ol'tlie lii'st morl;;'a!:,e. which was 
 also in default. 
 
 Held, thai the moll i;ai;ecs were nol entitled to consolidate 
 their nioi't l;■an■e^; so as to he paid the whole ot' the insurance 
 moneys, hul were rt'strit'teil to the iaL;lil Id recover the amount 
 remaining- unpaid on thi' second nnirtiiaii'c.' 
 
 191a. Los.s payable to mortg^ageo Assig^nmont of mort' 
 gag:o Subrogation — A contract of jii'e insui'aiicc is a conti'act ol 
 
 indemnity merely personal, and if the loss is made payable to a 
 morti^ayce it does not emire to the luiuelit of an assitiuee of the 
 mortij;ane. who takes the moi'tu'au'f without an an'i-eemenl with 
 the insurance company. 
 
 'I'he policy havinii,' heen liirfeited hy the insured, and the 
 iiiorl«!;a!.!;ee to whom the loss is payable havinij, assiii'neil his imu'l- 
 ^aii'c hefoi'e the lire occui'red, the iiiort L!;ai:;ee could not m'iii\tain a 
 suit for the lienelit of his assiijnee. 
 
 192 Mortgage clause as adopted by Canadian Fire Insur- 
 ance Companies. — "It IS herehy provided and aureed that this 
 insurance, a- to Ihe interest of the morte'aifees oidy therein sliiiil 
 not he invalidated hy any act or neifleet of the morl,Li,a;i:<M' or 
 owner of the property insureil, nor hy the occupation of the 
 ](feinises iiu' piii'poses more hazai'dous than are permitted hy this 
 judiey. 
 
 It is iurlh-'i' provided and aereeil thai the inortifuu'ees shall al 
 <uice notify said company (d' non-oeeupatioii or vacancy loi' over 
 
 I /.'.'lli.i t'liioii As.,. (■,)., iU). It, ,11:^7. 
 
 K.ist) 111 Mil' Use or lli';ulli!.v V. Mail lor.l {•'in' I n -. ( 'n. (N..I.S.( '.). 17 Ni-w .Icrscv 
 l,iu\ ,l>iiiiii,i.l (IHIH), :il)H. 
 
INSIHANCi: I'.V \I(il!T(iA<li;K IIH II V IMpTH KC A U V (It KIH'I'OIl. 
 
 2:57 
 
 lliifty (lays, n|- ot jitiy cliiiiin'i' < if (lie ()\vm'rshi|i or iiiriTasrd liiiziiiil 
 tliiit. nliall fdiiic to tlicir kiidwlfda't' ; iiiitl llnil every ineieaKc ol' 
 liii/anl, not jieniiilted l»y tlie jiolicy to the inorttfaucor or owner, 
 hhall l>e paid l>y the iiiorti^ai^ees on reasonalile deiiiuiid I'roiii the 
 dat.e Hiicli liazai'd existed, aceorditijr to tlie estahlislied scale of 
 rates, for the use of >iii-h iiiert-ased liazard duriiitc tlie eotitiimaiiee 
 of this iiisiiranee. 
 
 it is also fiirlliei- provided aixl au'reeil that \vli<'never tin; 
 (•oiiipaiiy shall pay the iiioiti^-ai^ees any sum lor loss undei this 
 poliey, and shall ilaiiii that, as to IIk^ iiiorti,^aij:;or or owner iid 
 liiihility therefor existed, it shall at once he le<:;ally snhroiij;ated to 
 all rif^hls of the niort^Xii^ees under ail the sei-iirities held as 
 collateral to the mortgage deht, to the extent of siieh jiayineiit, or, 
 at its ojttioii, the conipaiiy may pay to the morti::a!j;ees the whole 
 jiriiieipal due or to ^-row dne on tlu^ inorl<^ai:;e, with interest, and 
 shall theri'iipon receive a lull assiixnmenl ami transfer of the 
 mort<fai;e, and all other securities lielil as collateral to the morl- 
 L!,a,ii'e deht, hilt no such suhro^'atioii shall impairtlie rights of the 
 iiKU'ttraLfees to recover the full amount of their I'laim. 
 
 It is also t'urt her provided and a^'recd that in the c\'eiit of the 
 said |»rop(^rty heiiii;' fiirtlier insured with thisiu'anv other odice. 
 oil hehalf of the owner or morlniii^'ee, llu' company, except such 
 other insurance when made hy ihe nnu't i^'aiior (U- owi.er shall prove 
 lii\'arnl. shall only lie lialtlc for a rateahle proportion ol any loss or 
 'laimm'e sustained. 
 
 At the rei|Ue<t of t he as-ured, I he loss, i f any, midcr t his poll y, 
 
 is herehy made payahle to as 
 
 interest may apjtear, suliject to the conditions of the aliovc " MkI- 
 ildi/c ( 'litil.si'." 
 
 103. Mortgago clause, eft'eot ol'.--.\l.. who liad nuu't^imcd 
 \\\> prop<'rty to the plain! ills, suhscipieiitly on 1 he :.iiic| A pril, 1 MS I, 
 in>urcd with dclciidants. loss, if any. payahle to plaiiilitl.-. 
 Attached to the policy on a printed r-lip ilalcd -Jiilh Ma>, hSSI, 
 was the followiiiu; clau.-e : — "It i> herehy aL:'reed that this iii- 
 siiranee as to t he interest of t he niorli^an'cc <inly ihcrein shall not he 
 jnvalidaled hy any act or neglect of the niorlirn.i^or or owner ol llic 
 lirojierty insure 1, wnv hy the occupation of \\\<- premises for 
 purposes more hazardous t hail are permit led hy the Iciiii'- oftlic 
 policy." A lo-s having- occiirre(| the dcfemlaiits ilispulcd lleir 
 
 MU 
 
■238 
 
 ivsuran'i'p: law iH'- canada. 
 
 lialdlity ;md tlic iiuitter \\;is ictL'rrcd to :iii iirliitrator, who awarded 
 ill hivoi- of tliL- [>Iiiii)tirts, iifrcr iH't'iisiiiii' to ailmit ovidoiu'c tor tliu 
 doleiidants, that the policv liad Ikh'u olitained liy rVaiid. 
 
 lli'ld. tliat tiK' abovi" clausf [)i'ovidcd only agaii.st t'litiiro acts, 
 
 not t!a'i'('l)y in'iiaruiitoc tlic policy to the 
 
 lliat tJR' dctendaiits did 
 lilaiiitirts as iiidisimtaltlf, and riioivtoro that they wore not ileiiarri'd 
 tVimi st'ttinii" u[i that the insiiiani'O iiad hooii eticored by tVaud. and 
 tl.f (.use was remitted to the arltitrator tor the admission ot'siich 
 
 C\l'UMK-t' 
 
 lU 
 
 I'll! also, that !lic cian-i' did not amount t' i a new msiiraniT 
 
 U'uarv. 
 
 18^ 
 
 in tiiN'oi' of the niortn'a.ii'ce. ' 
 
 lOSii- Mortgage clause, effect ot. — On lil-t Fd 
 A. 1>. i'^ Co.. the [ilainlitts. ^'aNc a inoi'tu'aL^'c ^n a mill |iro|i('rty 
 
 thiy <lid in the R. i'om|iany iiy [lolicy 
 datc.l I'.lrh Maivli. isT'.i. On I'lrh .Mai'cli. 187'.'. A. h'ft the tinn. 
 
 mmtuiii' to m-itr" whirli 
 
 On 1st Marrh, IsSii. niMi'tu'a'.:'' 
 
 haviiiLt' received no renewal 
 
 ivcei[it c if tic 
 
 aoo\e III 
 
 )iicy. insiii'cil the |)ro[icrry m tiie 
 
 V. L 
 
 om|iany 
 
 m tiie name ot the ]ila 
 d 1 
 
 intirts 
 
 Ills u. [lolicy \ 
 
 (I'OV HkM 
 
 I that til 
 
 loss should lie |iayalile to ilie mortijaii'ees and the msuianco as to 
 the interi'sl of tlii' lattci- should not he invalidated hy any act ol 
 the niortii'au'oi's. and that if the mort;;'aii'ors did any aet invaliilatinii' 
 th 
 
 poliey, and the insui'er> dioiud pay the amount ol the [lolicy t( 
 
 th 
 
 e moi'tu'iisi'e 
 
 they should he subrou'att'd to the riu'lits of the 
 le of the mortii'iiii'e (h'bt and ohtaiii 
 
 latter, or miii'ht pay the who 
 an assiiiiimeiit of ihe moftii'au'e. There was no written application 
 for the U. [loiicy. The K. policy was siiii[ily handed the iusui'crs 
 iiiid from it tliey drew their policy, wiiich had the statutory con- 
 ditions only. No re[irt'seiitations were made to tlieiii in any other 
 way. The premium was paid hy the morti>'iiii'ees who edljccted it 
 li'ciii the plaintitKs, the latter havinu- taken no part in etl^eetinu; it 
 On 14th Mareii, 1881, the mortu'ay'ccs wrote a letti'r to the plain 
 titl^s in which they represented the I', poliey as iiidispiitahle. 
 
 A tire havinjjr occurred, tlie IT. ('oiiipaiiy paid the mort<i'a,t>'ees 
 the amount ot'the loss, whirh more than eovcred the amount due 
 on till' uiortgam" of which they took an assin'iiment. The (!vi(h'nce 
 showed tluit at the time of eth'ctinu; this [»olicy fiiere wcrti certain 
 iiisuraiu'(w on the property, and also certain niiu'tgau'es of wliieh 
 the U. Com[>any were not informed, and to which tliey lutver 
 
 Omiiimii Si'.cui'lt ii'H ("d, v. t'liiiiidii I'Mri- Mm. Iiih. Ci'. I (). 1{. I'.'l. 
 
fN'SUHANCK V.\ MOKTr.AdEK 01! II Yl'OTIIECARV OKIIDITOR. 2-\0 
 
 II n 
 
 Id' 
 
 :is~t'iitoil. The iihiiiititts now riuiiii>' (iii flio i'. iMiliry cliiinu'd to !ia\H' 
 tlu' niorty-an'i* disrhargeil and tin- Imlanrr (4' the insiiraiico money 
 [laid to tlu-ni and tlu' I'. Company cunntcrcIaiiiUMl t'or tlic amount 
 dill' Mil tlif moi'tn'ai;'!' : — 
 
 Held (rcviTsiim' tlu' iU'cisi<ni of Kcriiusnii .l.|. tliat tlu' iioii- 
 lomnuiiiii-atii'ii of A."s rrtircnu'nt t'loiii tin' tirni was not a lireacli 
 ot'>tatntory condition Xo. 1. liccaiisc A., tlioiig-h iif hail ivriivd. 
 rotaini'd an insuraltle intciH'st liotli as lialilr to tlic rovciiants in tlu- 
 uiot'tga<:;r and as still retaiinni;' tho ri^i'lirtd redeem ilic nioi'tu,"a!j,'e 
 and. moreover, es'eii it' A. liad no inti'i'esr at all t he sMr\"i\'inii' [larf- 
 lUM's c'lulil I'ei-.A'er aecordiiig' to the exteiir nl'iheir intere-^i. 
 
 Send)le. that e\'eii il' notice dl the chaiiii'e had ln'cii ot'nioment, 
 vet. -ince 1 he evidence shov/ed that the matter of the policy, as 
 lietweeii the moi'ti;'aii'cc- and the U. ('nm|iaiiy. was left lo the 
 limh'lV'lerk's tu deal with, and that a clerk ot' the iiiortii'aii'ecs 
 iiit'ormed a clerk ui'the I'. Company i>t' the chanu'e in i[Uestion. a 
 Jury iiiiji'ht ['ro[ierly Hml that notice ol' a change was commuiii- 
 sm;. 1 to the I'. Comitany.' 
 
 li.eld, fiir'hcr, i hat the non-i'iuiiinunicatinn ot' other inort- 
 i;'ai;'es, suhsei|Ueul tutjiat to the iilaiiititl'>. was noi a hreacji nt' 
 statutory condition Xo. 1, hecau.se such ihin-comnuinicatiou will 
 iiof, apart t'rom stipulation, irres[»ectivc of tin' natui'e and anionni 
 dt' the other niortn'ayes. ami wit iiont .my impuiatidii ot' framl. avoid 
 a piilicy ; and also hecause the plaintiff's were not htniuil unasked 
 to state the exact nature and exti'iit of the interest to l>e iii>iired, 
 and tlu're was at least c<uitriliutory neii'liii'eiife on the part of the 
 insurers, wiio miu'iit he regardeil as luiviiii;' waived information as 
 to the niortifau'es.- 
 
 Ileld, further, that the tact nf there hciiin' two prior insurances 
 unartseiited to was not a hreaidi of statntiuw c(Uiditioii iiumher H, 
 iiecause the evidence showed the l'. policy was to take the [daceol 
 the 11. policy, and ot' the prior insurance one \\as assented toon 
 the face III' the |{. policy and the other had hcen taken in suhsti- 
 tulioii foranothei', whi<di also appeared a- a>>ente(l to tui the \i 
 policy. It was theduty of the l'. Cnnipany to have piMijicrly issiicil 
 their policy, ajj;rei'in,<; to takethe iio.-ition ottlic 1{. CJoinpany, as also 
 it was the duty ot the morlgaii,'ees to -iee the jiulicy properly isHiiod. 
 
 ' Klt'ln V. I'lil.m Kilo liis. ('o.,:i(). H. :>;i|. 
 
 - Ih. SimiD V. (iori' Dlst. Mm. Ins. Co., 1 A. It., .")l." IdIIuwimI. 
 
240 
 
 INSl'RANCK LAW OF CANADA. 
 
 Held, furtlior, lliat the letter of 14th March, 1881, coiitairKul 
 ro])reseiitatioiiis whidi the niortgajjees were hound to make i^ood, 
 esiiecially as the U. Coiii])aiiy aeted as agent for tlie plaintifis in 
 (tiocring the ])oliey. 
 
 Held, further, that tlie claim of the U. Company to toreelose 
 slionld not he entertained, for the U. Com[iany could not 
 take the advantage of their own default, in not making the formal 
 entry of assent to the jtrior insurances on their policy, to hring into 
 play the suhrogation clause for their own advantage.' 
 
 Held, lastly, on the whole case, it should he declared that the 
 mortgage had heen pai<l, and the proper discharge slu)uld he 
 executed and the mortgagees should pay the halance of the 
 insurance money to the plaintitfs, with interest, M'ith costs of suit tO' 
 the ])laintiffs, as against hoth defendants, hut without prejudice ti) 
 the defendant litigating their respective liahilities as hetwecn 
 tlieniselvt's. 
 
 (Quaere, whether upon the facts stated in the report the jdaiii- 
 liHs wen' not entitled to rei-over on the ground ot' the compromise 
 made hetweeii the parties." 
 
 194. Covenant to insure in mortgage deed Effect of. 
 
 It has been held that the usual covenant to insure containctl in a 
 niortgaiTc cxt'ciited under the Ontario Act respecting short forms 
 of mortgages operates as an e([uitahle assignment of the insurance 
 when effected.' 
 
 I'lidcr a covenant in a mortgage the mortgagor effected an 
 insurance in the (iuecn Insui'ancc Company lor )*(),00() and trans- 
 ferred the policy to the morlgagee. The mortgagee, not having 
 I'cccived the renewal receijjt wit iiin three days heforc the expira- 
 tion ot the policy, as reipiircd hy the moi'tguge. effected an insui'- 
 ancc of .if ■), 00(1 with tlic Iniiierial fnsurance Co.. and hy a subsc- 
 .juent arrangt'mcnt the (iucen policy was allowed t.i la|ise. 
 
 In IXS'* a lii'c occurred and an amount was pai<l liy the 
 insurance company, which was applieil on the moitgage, retlucing 
 't to !i>l,7"tO, ami tlie policy was ri'diieed to that aiiioiint. The 
 iMilicy was tlieii caneelleil and an application made hy the invest- 
 ment company lor s;iid >um. The policy was to he. and wa-, 
 isHued in tile name of the owner, slated in the aiiplication to he 
 
 ' iviriii V I'll ion I'^irc Ins, Co. xii/irii, " lihm. 
 
 •' (livi'l V. CiliziMiN Ills. Co,, 1111(1 (ircct v, Itojiil Iium. Co., U A. It., .'!!Hl, 
 
IBB 
 
 t: 
 
 INSURANCE 1!Y MORTOAGEE OR IIYJ'OTIIECAHY CllElJlTOK. 
 
 241 
 
 
 tho plaintitt. The promiimus were paid by tlu' pluintifi. Attached 
 t<j tlie policy was the mortgage rlauHO wlu'rcby the insiirauci', as 
 to the mortgage chuise only, should not bo invali<lated l)y any act 
 ot the mortgagor; and if payment was made to the mortgagees, 
 and, as to the mortgagor, no liability tlierefor existed, tlie eom- 
 pany, as to such payment, should be subrogated to tlui mortgagees' 
 rights under all securities held collateral to the mortgage debt. 
 
 In 1882 a lire occurred and the insurance company paid the 
 investment company the ^l,7oO. The plaintiff claimed to liave 
 his mortgage discharged, bnt the insurance com[)any disputed this, 
 setting \\[> that plaintitl had no claim under the [tolicy, and that, 
 having paid the investment company, they were subrogated to 
 their rights. 
 
 Held, that the plaintiff was entitletl to the Itenetit of tlio 
 money paid and to have his mortgage discharged, unless he bad 
 done something to forfeit his rights ; but that there was no 
 forfeiture, certain gnmnds of voidance set up liy the defendants 
 not being temtble.' 
 
 195. Mortgragee not bound to make proofs of loss. — A 
 
 mortgagor insured his mill against fire with the defendants, the 
 policy Iti'ing payal»le on its hice, to the extent of one-half to tlu' 
 mortgagee. Attached to the policy was a separate slip called a 
 "mortgage clause,"' by which if was provided that the insurance, 
 as to the interest to the mortgagee only therein should not be 
 invalidateil by any act or negU'ct of the mortgagor: and, also, 
 that wheiicN'er the company shoidd pay the mortgagee any sum 
 fur loss under the policy. an<l should claim that, as to the mort- 
 gagor, no liability existed therefor, it should, to tlu' extent ol sucji 
 payment, lie subrogali'd to all the rights ot the party to wiioni 
 -U( li payments should be made. Troois of loss were not maoe by 
 ilie UKU'tgagor and mortgagee until within sixty days ot the end 
 ol a year alter a lire batl occurred : ami w itliin sixty days at'tcr the 
 prooi's were delivered, an action was commenced by the nioitg.igur 
 and the iH'presentative of the mortgagee. 
 
 Held, atlinning the judgmiMit ot" IJoyd. (',. at the trial, that 
 ilic mortii'agee was not boi'iid rs hi* assuicd ninh'r statutoiv .nn- 
 
 I null V. Xorlli ni'ilisli ("Mil. liivt'st, Co., t^ O. I!., ;ili-J, l.^i A. II , IJI. Klein ^. 
 I'liioii IMrc 111". Cii.. :i (), ){., '.iMI I'olloNM'il. iiml Oiiniiiini SpiMiritlt's Co. \. Can, I'lie 
 iV Miir, IiiH. ('ii., t ( t. li., I!U. olixcrvi'd iipiiii iiMlii- t'liurt of Apiienl. 
 
 It; 
 
 \{ 
 
I 
 
 24 
 
 r>i .) 
 
 INSIliWCE I.AAV UK I'ANADA. 
 
 (lirii)n 12 Id iiiiiki? proofs of loss, inid thiit licrc tlu' [htsoii assured, 
 tln' inoi'tgiiii'or. was tlic ihtsom to iiiaki- tliciii. umlcr coiiditioiis 12 
 ati.l l:i. 
 
 Ik'ld also, tltat tlic iicglci-t of tlic assiiicd to iiiakc tlir proofs 
 of loss ill pro[ier tiiiii' so tliat llic sixty days tlicivaftiT iniglit 
 ('X['irc ln'for*' the tonniiiutioii of the year alter tlie loss, witliiii 
 wliieli an action had to Ix- iiroiiu'lit uii'lcr conilition 22. was a 
 nA'irK'ct, from tlic roiiseipicncr of wliich tlic mortyauee was 
 relieved l»y file inorts;u,u'e clause, ami that, as fai' as lie was con- 
 cerned, the action was not lironti'lil too soon. 
 
 Held also, that the words, ••shall claim that as lo (he inorl- 
 ii'a'.:or no liahility exists," in the mortu'ay'o ehiiise. meant "and as 
 to tie' iiiortiiai-'or no lialiility exists. "" and that, as the policy was 
 valid at the lime of the tire, and notliiiii'' was shown to have taken 
 place to render it invalid, there was a liahility to the moi'li;-a<;-or : 
 that rlie condilion 22 harred the remedy and not the riu'lit, and 
 the deiendaiits w<M-e not entitled to siiliroiration. 
 
 Held also, that the mortu'aii'or was hound to make the proofs 
 in >Mch time that the sixty days would elapse ])elore tlio ex[>iratioii 
 of the yi'ar limited for hriiiying tlie action, and his remedy as to 
 the other half of the policy was harred. 
 
 196. Insurance by mortgage creditor is for his own security 
 only — It has hi'eii lield in (^uehec that the insurance hy a mort- 
 <'\i>io (;ri'<litor ot the lioiise or hiiildiiiu' siihii'ct to his morti>'ii";L> is 
 not an itisuraneo of the l)iiilding per .s<. hut only of the oreditor's 
 si'cniilv tor the payment of his doht. To support an action on the 
 itolicy, tliore must bo u loss existiiiu; at tiie time of action hrouglit, 
 [f. heforc action hrouii-ht, the promises he rol)uilt, wlieroliy the 
 creditor's security is rostori-tl, \iv cannot recover as for a loss." 
 
 197. Mortgagor not entitled to claim from assignor the 
 discharge of the mortgage — In the case (d" an assignment, with 
 the consent (d the mortgagor, of a mortgage, which contained a 
 eo\enant hv the assignor to transfer to the assignee as collateral 
 security a certain policy (d' insurance, tlu-n held hy tlie assigmu' on 
 the hiiililings existing on the property mortgaged, it was iield that 
 tlio failure iiy the assigin'c to seiiire siudi transfer an<l the eoiise- 
 
 ' AiiiliTNim V. SuuKi-eii Mut. Kirc Ins. Cm. of Mount Korrosl, ISO. |{., M.Vi, aiid 
 sti- IIdui's v. Doiii. Klif 4 Mar. Iiih. Co., S A. It., lilt, iiifni. 
 
 ■ .Matlit'WNOii \. WcsU'i'ii liiH. Co.. I 1.. C. .1. ■"i", 111 I.. C. It. S, a(i(i sec iiifni ^•li)\ 
 
[N.-.1 r.ANi'K liv miikT(;ai:kI'; mk hvimii'iikcarv i^inoDiiim. 
 
 J 4:] 
 
 i-H 
 
 it- 
 
 i|iici!t roi'f|iti(in by tlu" assigimr of the iiisunuuv iiKHit^y uiidiT flio 
 jiolicy. wdulil not ciititlc the inortg-iigoi' to claim from tliu assignor 
 till' (liscliar'xc of tin; iiioi'tpige.' 
 
 198. Loss payable to mortgagee. — As we iiavc scfii wln-n a 
 lii't,' policy taken out liy rlic owner of ri'al [iroiu-rty has 1 ecu mailc 
 to read, that the loss, it' any, i> payaiile to cei'tain jicrsons nainol 
 "as mortga^'ees to the exrcnl ottlieir claims'" such [lersons hecoiuc 
 thereby the parties assureil to the I'xteiit of tlu'ir ijiterest as niort- 
 Li'agi'es ami their right aniliiiieri'si cannot be (h'stroycil orinipaireil 
 by any art of the owner of the property.- IhitwunM tliis apply 
 only to acts, sniisoi|Uenr to -aid derlai'ation '.' ll'llir conditions of 
 the ptdicy had been inlVin'j'cd by the assnreil prior ti. the dcclai'a- 
 
 rioii. (iiy doul)le insurance or otherwise) it might Ik iiteiuUd 
 
 that such intriiigement could be invoked against the mortgagee.' 
 The contrary view ha>, howi'Vcr. been taki'U riiccntly in thr Tnited 
 
 States where it is said thai tie injiany's assent to an assignment 
 
 makes a new contract and iir«'fludes their raising against the 
 a>signee iletences which thoy have against the assignor.' The 
 Civil Code I'c^ulates trans|i'r> in Quebec.'' 
 
 Tn the case ol' lihij-/,- v. Xnli'nin.l /us. Ci., above cited, .VIr. 
 •lustiee Uaiasay, who was one i>f the dissentient judges, described 
 this decision as not compatible with any sound }>rinci|de. " It 
 alters the obligaticni of the insun-r, ami exposes him to perils 
 which the contruet he luis entered into, on its face, does not eon- 
 temphite." 
 
 As the decision above referred to was a reversal, ami there 
 were two dissentiiiuts. authority on the point was about eveidy 
 divided. Justices .Vlaekav, Mi>nk and llamsav being in favor of the 
 iiiHUrer, and ('liief .lustiee Dorion ami .rusti<'cs Tessier and Sicotte 
 being in favor of tlu? mortgagee. 
 
 Nearly ti'U years later the t[uestion again presenteil itself in 
 Xatiiuinl AssuriDwe Co. of frrii»</ ,('; irarn's.'' Here the loss, ifaiiy, 
 was maih' [uiyable to a [ii-rson named in tlu? [lolicy, and it was held 
 that the rights ol' this p.'rson wei-c not atteeted by a<'ts ot the 
 
 ' Robert & Mai'doniild !1» 1.. ('. .1. '.">. 
 
 -g.H. Ml!i('k& NiitiDiml liis. Co. ■2\ I,. C. .1. (i:< ami :i \.. V. •_'!•, and sci' Nivtioiiiil 
 Ills. ("0. .V^ ir.irris M. I,. H., .". Q. U. ;(!.-> hilrn. 
 
 ' Si'e in suppo'-t of lli's view sk/j/vi S 1!*-'1, Oimiiuiii .'Sci ut it ics ("o. v. Oiiii. I'Mrc 
 Mut. Ins. Co., 1 I). |{. I'M. 
 
 ' IJcacli :<n ^ (isa ck sv,\. ■ 0. ('. I-. ( '. ir.7I. '■ M. 1.. It. .". Q. U. :iir). 
 
 M 
 
 i m 
 
 A- 
 
244 
 
 INSURANCE LAW OF CANADA. 
 
 insured which wouhl have tlie effect of voiding tlie conlruct as 
 regards the insured, such us an assignment ot'the propiTty without 
 the porniission of the insurer. It was also heUl that tlu' creditor 
 to whom the loss was payal)le might make the preliminary proof 
 of loss in his ovvn hehalt, notwithstanding a stipulation in the 
 contract that the proof ot the loss should bo made by the insured, 
 although the loss should be made payable to a third party. 
 
 This judgment, which was made to rest upon Bid ck A- Nuiional 
 Iiifi. Co., extends and broadens tlie scope of tlie earlier decision. It 
 would appear that the fact of a company consenting to an assi gn- 
 meiit of the loss is etiuivalent to a renunciation on its i)art <»fall 
 the conditions of the jfolicy. For exaini>le, the property insured 
 may be assigned to some one whom the company would have 
 utterly refused to insure, but the comi)any has no redress during 
 the reniaintU'r of the period for which the premium has Vteen 
 re -eived. The property may be converted from a dwelling into a 
 saloon, but the contract holds good. To use Mr. Justice Ramsay's 
 words, the obligation of the insurer is altered, and he is exposed to 
 pc'.ils wliicli the contract he has enti'red into, on its face, d(ies not 
 ciintenipliite.' 
 
 The e<[ual division ot o[)inioii i>\\ the former case has been 
 pointed out. and this e(ptality is still more marked when the two 
 (ji<es are taken together. The opinions stood : For the insurer: 
 — lustices Mackay, Monk, Ramsay, Cross, Doherty, ;">. Against 
 the insurer : — Chief .Justice Dorion, and Justices Tessier, Pxisse, 
 I'apineau and Sicotte. ■'). It lia[){tened that thi^ French-speaking 
 juilges were of one oiiinion and the English-speaking of the other. 
 The amount involved in Xi(f inrtal Assnr<()ii'e Co. ,(• //i-z/t/.v was too 
 small to give a right ot appeal eitliei' to the Supreme Co\n't or to 
 the Judicial C'om mittee of the Privy Council and theri' has bi'(Mi 
 no pronouncement as yet by any higher authorit\ thiin the Court 
 of .\ppeals as to the law in (Jiichec on this point. 
 
 199. The hypothecary claim must be secured by the pro- 
 perty. — A mortgage creditor insuring may sometimes not re. -over 
 tlie amount insured, because of the existence of moitgages anterior 
 to liis. t'overiug more than the value of the lan<I and buildings 
 mortgagoil. A hy[)otlu'cni-v right is often woi'th iicthing. 13ut 
 insurers, to gi't tree Irom puying an insured mortgnge <*reditor'ii 
 
 ' t;; I.. N. HI). 
 
, I, 
 
 I.VSl'KAN'CK r.V MoirrUMlKK iiK [IVI'OTIIKOAIIV CKKDl f'Ht. 
 
 245 
 
 i(>s-< iilii'gi'd, must [jfovu rloiirly tlu> Viiliiolcss I'liariicrcr ot' •"lie 
 insurfil's ri<>Iit ni' h/i)(ifl>>'t)ue, l»y |)mofot' tlu' Viiliic of rlic huhl lOiI 
 I>iiiltliiigs inoftgiigt'tl. and ot tin- (|iiiiiitity of inortgim'c d.-iinis 
 agaiiisr it. antcritu- in diitc to tlu' insured'.s. 
 
 In MrdiUirriiii r. Mniifrei'l Ass. r*>..' one of tin' judges said 
 tliat wlicrc ii inortgagi'i' insun's to socnrt' liis iiiortgagc claim, it is 
 iioces.'ary foi- him to >lio\v that his claim was wortli souu'thing: foi' 
 if anterior claims were undouhteilly larger than enough to eat n[) 
 the whole value of tlie property insured then he could lose nothing 
 l)y its destruction, and having lost nothing had no claim for 
 imlemnity, and so it," after a tire, eiKUigh value remain^ in the 
 thing iiir-urcd the mortga<>'e crcditiu' ought not to get tl 
 
 le ooU' 
 
 amount. 
 
 200. Fire insurance as security for loan Tudge Mackav 
 
 jioints out that insurance is often ettected hy an owner dclttor a- a 
 security for a loan. The insured would (hi well tit stipulate that 
 the insurance is tor the creditor if the doht he suhsistin"' at the time 
 of a tire ha[piH'ning. hut for his own afti'r the deht is paid. .V 
 iinrrows £lOi) from 13 and piomises to insure for B's henotit. 'IMie 
 insurers take the promium. The [^dicy reads to socurc B, After- 
 wards 15 is I'epaid hy A who. not examining the policy, i- tranquil 
 and even pays a renewal premium. The house insured is aftei- 
 wartls totally destroveil hv tire. The iii>urers lose nothiiiii'.' 
 
 201. Chirosraphary creditors. — A chirographary credit(n- 
 cannot insure his del)tor"s house in his own nan.e, tlcu'e is not 
 " malU'r'' u (issiirmn'f ;" liut he can insure it in the name ot' Ins 
 dehtor, ami tlieii on loss the imlemnity will he di'^trihiited /nir 
 jii.stici' ; thi^ insured is held itei/iilldi'KUi (jeafor of the dehtfU' in 
 making the insurance. 
 
 r)Ut the [iremiiim in such case cannot ho fastened on thedel)tor. 
 And whereas the del)tor nniy ratify atid make tin; insurer pay if 
 loss hap[iun. lie may refuse, where all goes well and m> tire uciuii's, 
 to ratify the in'i/dli'irihii (//.',s7c/'".v doings.' 
 
 202- Mortgasee must stipulate to have benefit of in- 
 surance — A mortgagee stipulating that the mortgagcv sliall 
 insure the mortgaged property, should stipulate that lie is to have 
 the heiieiit of the insiiram'c ; else, after a, lire and assi-i-nment hv 
 
 ' a I,, c. It. \HH. ■■! i:i I,. N. ai."). 
 
 Ih. 
 
 • l:i I„ N. 2iHi. 
 
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 lifili; 
 
 I' 
 
246 
 
 INSURANCE T.AW OF CANADA. 
 
 tlic insured, tilt' mortn'agee will in vniii imtity the iusiii'iiiice coiii- 
 jiaiiy (it'i'laiiu I'V or ibr liiiii.' 
 
 203. Loss payable to mortgagee— Breach of condition of 
 
 policy TudiTi.' Mackay says tliat wlioro an insurance is oft'cctol 
 
 l)y A, an<l " in case of tire the insurance money is to he paid to C, a 
 raortii-au'c creditor of A, and A suljsequently hreaks a condition 
 about other insurance and so avoids tlk' iiolicy, can get nothinu'. 
 The full riglits in and to the [lolicy were never Cs ; he was only 
 appointed to liave any money claims that A could possibly main- 
 tain,- but this is overruled' 
 
 204. Case where mortgagee's interest ceases. — in (Quebec, 
 wliere a mortgage creditor insures tlie liouse (mortgageil) of his 
 (h'lttor, tliis is lield not to be insuraiuie of the hoiist- /»(?/■ f<e, but of 
 the creditor's security ; so that, tliough the liouse be burned, if 
 before the mortgagee sues the insurer, it have been rebuilt by tlic 
 mortgagor, the mortgagee cannot I'ccover as for loss by tlie fire. 
 The rebuilding by the debtor is held to iVt'c the insurer from 
 obligation to pay.' 
 
 Mathcirsiiii V. Wcsleni fits, r./.' was an iu'tion to recover £400, 
 amount of a policy of fire insurance. In 1844, .lohn Matlunvson 
 and wifi' sold a lot of land to C. P. Ladd, for a ]irii'e in i)ayment 
 of wliicli Ladd constituted a lu ute in favor of vendors of £00 per 
 annum, tor wiiich tln' land was mortgage<l. l^add ftirthcr bound 
 himself to i.-rcct a house on the lot, of the value of £400. to insure 
 it and to transfer the policy to the vendors iis extra security till the 
 /■'/(/(' should lie redeemed, lie did build, but never insured. 
 Nhithewson and his wife assign»'il the rciiic to the piaiiuitt who. 
 in March, 185-".), eth'cted the insurance for £400 on which tlie action 
 was brought. In June, 185;?. the house insuri'd was destroyed by 
 tii'c. It was I'ebiiilt, by Ladd, immediately, and before iilainliJi' 
 comnienced his suit. The defendants contended that tliey<'ould 
 lint be held liable to pay : tlial plaiiilitf had sutlercd no lo<s. anil 
 that the rebuilding ot I he liou>e before die Institution ot tlie action 
 retieve<l them tVoni iiabilitv. 
 
 i.ii'sv. \Vhili'l'\v. 'J L. !!.. Ki). 1 i;!. 'I'lif j;ciiL'ral rule is tlial llit; iiioriua.m'c 
 titis iio I'iiilil to tile lifiK'lil of ;i policy tiil<en l>y tlie nii)i'l;;iiniir niilcss il is iissi.;iii'il 
 tti lii;ii. Hill il iii,)rlj{,iK''>r iiKici' lit iiisiirf tor tlio mortuajici', tlir latter has an 
 (■(|inl.nt)li' lii'ii 111! ilie money due on a iiollcy laUen liy niiii*,L;af.cor. Anuell, f I'iL.', and 
 see i:! li. N. 2(»i!. ■ i:! I,. .N. 2(Hi. ■ .Vi/.o/v/ * l<)s. 
 
 •• i:i 1,. .\. l!>i7. i.n'i >.ei' Kii/Td i^' lltli. 'I I,, i '. ,1. .■? ■•<iipi(i i liKi. 
 
INSUKANt'K r.V MURTGAGEK (>K II YI'nTllECAltV CIUODI I'OH. 
 
 141 
 
 TIk' Court hold, tliiit an insurod must he under loss at tlio 
 tiino liif> action is ln'oiiijlit (arginin'iit I'roni IliiiiiUlnii v. Mciulrs} ; 
 tliat in tlio prosont cas*^ ]ilainfift"s sociirity was us irood as it imd 
 ln'ou Itoforc tlie liiv ; that lio had suft'cri'd no loss ; and that undi'i- 
 tlu' ciri'iuiistanros tho action was to Ix; disinisscd. 
 
 The Court citod also, in sniiportot its jiidgmi'iit. iVoin Par-ons 
 Merc, liaw, |i. 50!* : " The inort^'ayee has an inteivst only ciitial to 
 " his delit, and founded iiiion it ; and if the debt he paid the 
 " ititorest ceases, anil the jiolicy is discliaim'd. And if a lu-iise 
 " insured by a mortgagee were dauia^'ed hy tire, even considerably. 
 " or perhaps destroyed, it might be doubted, on what we slunild 
 '' think good grounds, whether he could recover, if it were pmvcd 
 '• that the remaining vahu' of the premises mortgagi'ij was certainly 
 " more than sufficient to secure his <leht and all possible charge^.'" 
 A\''ith respect to this case, it may l)e remarked thai the re- 
 building was i)erformed by the del)tor ; it might iiave been done, 
 at his re(piest, by third persons, builders, and for credit, these 
 jKU'sons observing fornudities of tlie law of Quebec, and so secur- 
 ing privilege for tlieir outlay. Had this bi-en the case tlu' insur- 
 ance com])any would no doubt have been condemned in tavnr of 
 Mathewson. 
 
 Mathewson, when he insure<l. had security, bv the land and 
 liy the building. lla<l Ladd not rebuilt, it would have been going 
 tiir to say that the insurer was not liable, on plea that the laml uas 
 worth the sum insured. It might not continue to lie so. It r,r.i;-lit 
 perish, yet the mile cuntimie to bi' payable, and i.add might i)c 
 utterly bankrupr. The intention of both insurer and iii-i:ivd 
 might fairly lie sujipost'd to havi' been that it the house asa se.-irity 
 for the debt disappeared the insui'er would pay. 
 
 A insuri's to tlu' extent of i-H)0 a house, and I I'aii-^i'ci'- liie 
 policy to B, who holds a mortgage on it lor i;40<). I''ii'c liai'p. n.- 
 afterwards, and A tiles all particulars, showing a loss o| jt:")Uo. |', 
 aiier'ivards settles with the insurers and dischargi's them, for jjl'iXI 
 paid. .\ complains, and nniy. justly ; il'.\ and !> wei'e credi; ■;- of 
 thing f"-n//;//i///(i , and !> made remission ot' pai't. he wonld he le M to 
 indcinnitx' his a->oi-iate fur the hurt caii-cd hini \>v ilie reini>e. 
 
 
 •^ 1 
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 2}5. Insurable interest continuing' after mortgagor has 
 sold property. — In (Jiicliec, a mortgagoi' ot' property to sem-e a 
 
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 INSURANCE LAW OF CANADA. 
 
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 ileUt duo l)y liiin will continue *(> have an insurable intoivst herein, 
 -tfven after he has sold the property subjecft to the mortjjage. 
 
 A mortgagor constantly sells property in Quebec charging the 
 purchaser to pay oft" the mortgage debts, and balance to him. Such 
 f^ellei- (mortgagor originally) ma}' insure ; he plaiid}' has interest ! 
 his vendee may become bankrupt, and the buildings (ii the lain! 
 may be burned.' 
 
 The same doctrine holds good in Massachusetts.- 
 
 206. Claim paid by company in excess of mortgraKe ffoes 
 to debtor — In a case whore a creditor insured his debtor's house, 
 the sum jjayable by the C(»mpany after a lire being more than 
 sutHcieut to pay the crcr'ti^'', the debtor, a stranger to the contract, 
 claimed and received !(•■> diftorence, the insured hypothecary 
 creditor being hehl neifo'.'Oi'inn ijesUn- of the debtor for the excess. 
 The policy did not menUof .» imo'int of the mortgage debt, and 
 the insured >• lis he'd >o }■■■ .!■ t'^l in his own interest and the 
 debtor's.' 
 
 207. Life insurance -Lien for premiums paid — A policy of 
 insurance was assigned by L. to S. as a security for a judgment 
 deltt due from L. to S. on which S. had created a charge in favor 
 ot V. The premiun)' were paid Ity S. during his life and after his 
 deatli by his administrator, at first of his own authorit}' and after- 
 wards by the diretition of tlu' court in an administration suit. 
 
 Held, that as against V. the administrator of 8. had a lii'n 
 upon the money payable under the policy for the amount of the 
 premium paid by him, hut not for the premiun) pai<l by S ' 
 
 And where a mortgagor of policy became bankrupt but con- 
 tinued to pay premiums, held that they were in the nature of 
 salvage moneys sought to be repaid with interest at 4 per cent 
 out of the policy moiu'ys.'^ 
 
 207a. Life insurance Lien for premiums paid. — A ])olicy of 
 insuranci on the life ot G. granted to a trustee for her, was assigned 
 to trustees upon trust to invest the proceeds at the death of (tI. for 
 the benefit ot C. for life, f(»r her separate use, without power ot 
 untici[)ation, and after her death upon trusts as she should appoint, 
 
 • IM I,. N. '2IIS. I Wilson V. Hill. U Mi'lciilfi', M. ■' 
 
 ' N.iiris V. ('iiliMloniaii Iiin. C'k, S \<a\, I^T. 
 
 '' .Slicitniiiin V. liritiMli Km. Mat. Iiift* Ahm. Ch. II Ki|. 4 
 
 i:il.. N.21I. 
 

 INriURAXCE BY MOUTOAOEE Oil II VI'OTHECAI' Y tlRRDITDK. 
 
 240 
 
 iind in (U't'ault ot'ai>poiiitinent for the poraoiirt who woiiM he imi- 
 titlod t(» lior ]>erso)ml estate. The truHtee-^ had power to pay the 
 prem'mnis. Notice was given to the iiisnraiu-e eonipan.v ot the 
 asi^igiimeiit. C siihse(pieiitly, hy a tU'ed to wliieh <}. was a party, 
 appointed the [loliey and the moneys to heeoine (hie tliereon to the 
 plaintitt's to secure the ri'i»aynieiit of moneys (vith interest at tive 
 per cent) advanced to G. for the henetit of herself and C. an<l 
 ehihlren. Notice was given to the surviving trustees of settlement 
 and to the in-'urance company. The plaintiffs had, in coiiseipience 
 of the trustee anil others interested in the policy refusing to j)ay 
 them, i)aiil the premiums and kept tlie policy on foot. On the 
 death of 6. the assurance company paid tlie policy moneys ti) the 
 trustees who refused to pay the plaintitts the sums due to them. 
 The policy moneys were afterwards paiil into court. On hill fylcd 
 hy the plaintiffs : — 
 
 Held, tiuit they were entitled to he repaid at once the moneys 
 which they had advanced for the payment of the premiums with 
 interest at four I'cr cent, and one per cent more on the death of C 
 
 207b. Life insuranoe Lien for premiums paid — When a 
 person, not the sole heneficial owner, pays the premiums to keep 
 up a policy ot" lite insurance, he is entitle<l to a lien on the policy 
 or its proceeds in the following eases ; — (1) l»y eontra«!t with the 
 heneficial owner ;— (2) By reason of the right of truutees t(» an 
 indemnity out of tlieir trust proi»erty for moneys expemh'd hy them 
 in its presi'rvatiun ; — (:]) By suhrogation to their right of some 
 pcM'son wlio, at the request of trustees, had advanced money for the 
 preservation of the property ; — (4) IJy rea.son of the riglit of a 
 mortgagee to add in his charge any money paiil hy him to ju'cserve 
 the property. 
 
 In no other «'asos can a lien on a iiolicy tor premiums paid hi' 
 acipiired either hy a -ttranger or hy a part owner of the poli<y.- 
 
 207o. Life insuranoe— Lien foi premiums paid. Iv mort- 
 gaged a policy of life assurance to K., and afterwards fylcd a 
 petition for li(piiilation. R«'solutions of the creditors were passed 
 under which K.'s friends were to pay 2s. in the pound on the 
 unsecured del)ts, and the trustee was to assign to a nonnnee of the 
 
 :■ n: ?! 
 
 \ i 
 
 iJl 
 
 ; 11 
 
 '. I 
 
 I lilll V. Dowiiitiu:. 17 Ku.-IllO. 
 
 ' III ri> lioslic, 1,1'hIIc v. French. 23 Ch. D. TnW. 
 
FFT 
 
 ! 
 
 m. 
 
 
 250 
 
 INSURANCE LAW OF CANADA. 
 
 •!! 
 
 m 
 "<>■ 
 
 fViondrt all K.V property, except the otpiities of redemption, in the 
 secnrities held l)y rteeured creditors. The terms of tJiese resoUi- 
 tions were curried out and E. obtained his discharge. 
 
 Shortly after thii; ascreement I), informed E. tliat none of the 
 encumbranceri? would pay the premium for that year, and E. paid it 
 on the face, as he deposed, of his interest under tlie agreement. 
 Tliere was no evidence tliat J), had any authority to enter into any 
 agreement on behalf ot F. or that F. hud any knowledge of tlie 
 c<)ntract or o\' the payment by E. F's. representative, Mrs. F., 
 brought an action to enforce her security, and the policy was sold 
 for much less than the amount of the mortgage. 
 
 Held, by Bacon, V. C, that E. was entitled to be ri .a'd out 
 of the proceeds of sale the premiums for 1883 wiiich he had paid, 
 and that the residue must be paid to Mrs. F. 
 
 Held on appe-d, that E.'s payment of a premium in his 
 character of owner of the equity of redemption could not give him 
 a lien in priority to the mortgage debts ; that E.'s belief that he 
 had a valid contract for purchase when he hud not, cotdd not give 
 him any advantage as regarded the premium, there being nothing 
 to show that F. knew of the alleged contract of the payment of 
 the premium ; that in this state of the evidence no recpiest from 
 F. to pay the pri'mium could be inferred and no equity could be 
 held to have arisen iigaiust F. on the ground of acquiescence or 
 lying by ; and that the tact that the policy had been preserved by 
 E.'s payment did not give him a right to have the premium re- 
 paid, nor give him a lien on the policy for it. 
 
 Ifcld. iheretiire, that the whole proct'cds ot suU' must be [laiil 
 to Mrs. F. without tleducting the premium. 
 
 Semitic, the iiiaritinie <loctrine of salvage has no ap[>1icution (o 
 the payment nt' in'curnims on a policy.' 
 
 207d, Life insurance— Lien for premiums paid. — Under the 
 lir.)visioii> ot' 11 i'l'ivati' Estate .\ct thclrustee ota term of years in 
 certain siMtled otares, of which W. had been ti-nant for life, was 
 iiound to apply ilie rents to tlie eslales tii'st in the payment Iroin 
 time to time oi tiic interest np<»n ceriain inciiinhranees existing 
 liefore tlii' pa^.-.iiiL'" of the .'Vet. and subject thereto in flic paynuMit 
 from time to lim.' ot tlic interest on siini> to l»i' raised by mort- 
 giiges eriMii'ii unilcr he powers conlerreil by the A>'i und of the 
 
 l''iiii'kr V, .^i'0lli»li liiipfiiiil IllH. I'o. 'M Cli., 1). 'S\i. 
 
^PPiP^WOTtf^l!" 'JV 
 
 INSlRANrK IIY MORTGAGKE OK HYPOTHECARY CREDITOR. 
 
 261 
 
 lnoMuuins on iiolioiiw of life ussunuicc, constituting the oillaterul 
 scH'Ui'ity for the rt'paymont of th<)se sums, the equity of redemption 
 being reserved to NV, The rents liuving become insufficient, tlie 
 trustee in order to save one of the policies from hipsing paid a 
 premium out of his own moneys, lie di<l tliisvvitliout any reijuest 
 from the mortgagee or from the owner of the equity of redemption 
 of the policy. The life insured having dropped and the jtro.'oeds 
 of the policy having l)een received by the mortgagee : — 
 
 Held, that the trustee was not entitled to any lien on the 
 proceeds in respect of the premiums which he had jtaid, lie not 
 being a trustee of the policy. Tlie right of a trustee to be iiideni- 
 iiified out of his trust fund for money expended by hitu in itr> 
 preservation is strictly limited to the trust fund." 
 
 208 Life insuranoe— Salvage premiums— Reimbnrsemeiit. 
 
 On ati assignment of leaseholds subject to a mortgage to an in- 
 surance company, which was collaterally secured by a policy, it was 
 agreed that the policy should beUuig to tlie vendor, who was to 
 pay the premiums. This he failed to do and the purchaser had to 
 j»ay several premiums to prevent the mortgage being «alle«l in. 
 The policy tinally lapsed, but the insurance company ex (jraHii 
 allowed the surrender value, whicdi was less than the salvage 
 liremiums, and wrote the aniouiu ott the niortgage debt. The 
 vendor ehiimcd to have a lien on the leasehold for the anii)unt, 
 and a dc'laration that lie as surety stood in the place of the inoit- 
 uayees of the poTu'V. (!laim dismissed.' 
 
 209. Life insurance— Mortgagre by deposit. — In >47 A. de- 
 
 jiosited a policy on his own life with T5. as security for an advance 
 of money, and dietl in 1H74 insolvent and no administnition was 
 taken out to his estate, in 187o li. pi'ovt'(l A."s death to the 
 satisfaction of the insurance company and deinmided piiynic lit of 
 the policy moneys which wiTc iiisulHcient to pay the debt, im! the 
 '■■•mpany retused to pny him without tlic consent ot' tl.c U'gal 
 personal repivsentativi- of .\. In 1>^7'^ 11. died, and ;ii, action 
 lirought by bis executors again^t the coni|iaiiy clainiini:' .i (ii'cla- 
 ration that tliey were eiitilied to the p.ilicy moneys ami p.ivuieiil 
 with interest tVom the lime wlicii the dc'iniiid ot payi.ciit was 
 made. 
 
 ' ill !■.• Kuii i)f WiiifliilM'ii's I'ciiiiN 'iiusi-,, :tif,'ii. l> itis. 
 - l.ipiii'lt v. Sluiiit, .Norlh V. .1. (IHlJi W.N. Hi 
 
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 252 
 
 INSURANCE LAW OF CANADA. 
 
 n 
 
 Jortrt.'l, Nf. R. (1), lu'ld tliat tli'j (•(•inpany was jiirttiticd in 
 refusing- to pay ovor tlic [)olicy moiioys without the cousoiit of A.'s 
 legal [lorsonal ivprosi'utativo ; — (2) dispeiisod with the lesi'al 
 peraoiial re[>reseiitative of A. under the Chanoery Aiiiondtucut 
 Act 1852, 15 and 16 Vie. c. S(j, s. 44 : — and (;]) ordered payinent 
 of the poliey moneys, with interest at four [ler cent from the date 
 when demand of payment was made. 
 
 On Appeal ou the (luestion of interest : — Held, that, as the 
 default (ir delay in payment of the policy moneys had been caused 
 uot hy the company liut 1)}' B.'s ues^lect to clothe himself with a 
 legal title to the money, interest did not commence to run till the 
 order for payment of the principal was made: Crossley v. City of 
 Glasgow Life Insurance Co. (4 Ch. 1). 421) overruled on this point. 
 
 Quaere, wViether, in an action b}'^ an etpiitable mortgagee of a 
 life p.ilicy against the insurance compaii}' chiiming payment of the 
 policy moiuiys, the court lias Jurisdiction under the 44tii section ot 
 the Chancery Amendment Act, 1852, to dispense with tlie V\gal 
 personal re{»resentative of the insured.' 
 
 209a. Life insurance— Mortgage by deposit.— In an action hy 
 an eipiituMe mortgagee of a i>olic.y of insurance against the in- 
 surance company for payinent ot the policy money, the court had 
 Jurisdii'tion under the 44th section of 15 and ItJ Vict. c. 86, to 
 dispense with a legal persoiud representative (tf the assured where 
 none exists." 
 
 209b. Life insnranoe— Mortgage by deposit— S. having effect- 
 ed two pidicies on his life for the purpose, as he expressly informed 
 the insurance company, of emdding him to give C. a security for a 
 debt which exceeded the amonnt of the policies, deposited them 
 with C. at the same time asking hini by letter to instruct his (C's.) 
 solicitor to prepare the necessary assignment ; C. however, never 
 took any assignment. 8. died insolveiit having made a will appoint- 
 ing executors, hnt no representation was taken out to his estate. ('. 
 then gave the company notice in writing of the death, and that he 
 held the policies as security for his debt, and the comiiany 
 acknowledged the receipt oi" the notice in the terms of the I'olicies 
 <d' Assurance Act 18(37 s. (i. I'roper eviilonco of S.'s death having 
 
 ' Wi'l)Htor \-. Hritixli I'linpirc Mtit. Life .\s.s. Co., l.'i Ch. I). UM, mid see lii/ni 
 •' CiirtiH V. Ciiludoiiiiiii l''iif & Life Ins, Co. lit Ch. 1). :M. 
 
INSURANCE HY MORTGAGEE OR HYPOTHECARY CREDITOR. 
 
 253 
 
 been sunHoqiu'iitly prodiu^ed to tlic t'orai)any, tliey wrote to C. that 
 the claim uiulor the polii'ies would he paid at the oxiiiratioii oftlic 
 three months, but that the assent of S.'s legal pergonal representa- 
 tive would he required before settlement. After the expiration of 
 the three months C. being unable to obtain payment of the poVu'y 
 moneys (although his debt was admitted by S.'s executors, and lie 
 offered the company an indemnity) brought an action for that 
 purpose against the ('omi»any, insisting that S.'s deposit and letter 
 (•((ustituted an equitable assignment «)f the policies within the 
 i'olicies o, Assurance Act 1807, and therefore enabled liim to give 
 a valid discharge for the moneys. 
 
 Held, that there had been no equitable assignment oi" the 
 policies within the Act, and that the company were justiticd in 
 n^fusing to pay him in the absence ot S.'s legal personal repre- 
 sentative : 
 
 Onlered, paymetit of the policy moneys to the plaintiff after 
 deducting the company's costs, the legal persoiuil representative 
 Ix'ing dispensed with under the power given to the court by Sect. 
 44 of the Chancery Amendment Act 1852 (15 & 16 Vict. c. 86) ; 
 also, payment by the company of i'-terest at four per cent from the 
 (lay which had been fixed by then) for the payment of the prin- 
 cipal. Wolfe V. Finlay (6 Hare 6t;) disapproved of.' 
 
 209c. Life insurance -Mortgage by deposit. — An agreernent 
 ill writing to execute on request an otfectnal mortgage ot a policy 
 of insurance deposited iit the time of the agreement as security for 
 a loan, is not an "assignment" of such policy within the nu-aniiig 
 of the I'olicies of Assurance Act 1867. — Accordingly, notice to tlu' 
 iissuraiice company of such an agreement does not give uiider that 
 Act any priority over a prior etjuitabie mortgagee who hn> given 
 no notice but has possession of the policy. The holil er of a iiolity 
 of insurance on hisownlife deposited it with A. by way ot cquit- 
 iible mortgage to secure a loan. A. retained the policy, l>ut gave 
 iKt notice to the company. B. after\var<l.;, iii ignorance .it' this 
 prior Jiiorfgage, agreed to lend money to the policy holder ii[ioii a 
 (l(iposit of the same policy, and the policy holder alleging that ho 
 had left the policy at home l)y mistake, and protnising forthwith to 
 deliver it to IV, took the loati and signed a memoraiiduni that he 
 had deposited the policy with H. and that he undeitoik on 
 
 II! 
 
 I'll 
 
 ^ :1 
 
 ;,rv 
 
 [ 
 
 CrosKicy V. l.!ily of (ilusjtow l.ifc Ass. ('o., 4 C'li. 1). 421. 
 
IT 
 
 
 irA 
 
 INSURANt;E LAW OF CANADA. 
 
 r»'(juoHt to cxccuto to B. ail cttectual mortgai;'^ of It. I*, gav.^ to 
 tlio coinpan}' notit-e of his loan and nuMuoranduni of di-posit. and 
 fivijm'ntly ai»pliod to the poru-y holder tor the policy, l«iit tin- 
 [lolicy lioidor made various excuses for not handing it over, and 
 <lied leaving it in jiossession of A. 
 
 IFcld. that tiie eireiimstanees of tlie ease were such as to pnt 
 r>. on .'n<|uiry at the time of thi> loan, and to tix him witli ii.n- 
 struetive notice of A.'s security, and that the title of A. ;is in 
 jiossession of the i)oliey must prevail over that ot 15., altlinngli {',. 
 <lid and A. did not give noti<-e to the company.' 
 
 200d. Lifeinsuranoe— Mortgage— Priority — The At t cf oO 
 
 .t :U Viet. c. 144. is intended to apply only as Itetween the ii;- 
 snrance otHce and the person interested in the policy, and docs ni>t 
 attect tlie rights of those [lersons iiitiirs,; Accordingly, where a first 
 ineumhrancer on a polic}* has not given such notice as jtrescrihed 
 Iiy tlu' Act and a setiond ineumhrancer with muice of the prior 
 charge has given the statutory notice hehl : — that the secontl in- 
 eumhrancer did not tlierehy ohfain priority.' 
 
 210. Recent American decisions— Mortgage clautKe— Effect 
 
 of. — i'roiuM'tv was insured hv a policy eonfainini; this clause : 
 '•Loss, if any, payahlo to the mortgagee (naming him) or its assigns 
 as flieir mortgage interest may appear. Mortgage clause attaihc(l." 
 ft wa-i written in tlie hody of the policy. Attached to tin- policy 
 was the mortgage elauKO referred to, the heginning of which was. 
 " Loss, if any, payahle to the mortgagee, or its assigns, mortgagee 
 or trustee, as hereafter provided ; " with otlier conditions showing 
 that the clear [>ur[tose was to regard the interest of the mortgagee 
 as a special object of protection. 
 
 The mortgagee, a hank, assigned a mortgage, tlie same was 
 foreclosed and a sale made to one wlio made application to the 
 agent ot the company for such changes of tlie policy assigned to 
 him as might he necessary, hut was told it was all right as it was. 
 When his action was brought upon the policy, after a loss occurred, 
 the company claimed that the policy was avoided by reason of 
 certain provisions therein that in the event of a foreclosure of mort- 
 gage and other things, without their consent, etc., it should be- 
 come void. 
 
 1 Speiice V. Clarke, it Ch. I). l.«7. 
 
 » Newriirtu v. Newman UH Cli. I). fl74. 
 
INSUUAM'K ItV M'iRTiJAiJEK nil ItVroTllEi'AK V I'RKDlTnlt. 
 
 2r>r) 
 
 ^^"JfT,iY-r'' I'l 
 
 Tilt! Iliiiiois ('oiirt (.f Appeals siistaiiu-il rlir validity oftlio 
 |iifrn.'y ovor this conti'iiticii. Tlit-y said : •• TlnTf is a iiiuiiilfst 
 iiu'onsistoiicy bctwoi'ii tlicsc provisions (tlio-i- ujhm\ wliidi tin- 
 dct'onti! rfsti'tl) ai\tl those ot'thc morttrai'*' claux' as a[>plied to the 
 situation at th" time tlie poliey issued. A.> svr have >ho\vii, the 
 mortgage ehiusi'. wliieh ir- the latest ex[)i-e>sii'ii nt'tlii- eoutraetiug 
 parties iiiid must control il'there is eonHiet with otliei- provisions, 
 iiiaih' the mortgagee the Iieiietieiary. and made hi- interest and that 
 ct' the assigns t'le s(de oliji'et ot" [irotet'tion. Wlivn thi:- is eoi' 
 >ideri'd in connection with tlu- circumstances then existing, it 
 Would he unretLSoiuihle to a^iply. tor exampK'. tlic condition that 
 thepidie.y shoid<l he void in casi' ot' a t'oreclo^ure -uit ining coin- 
 nionct'd. Tlie very olijeet was to [irofect om- whose interest would 
 [irohahly compel him to hriiig such suit, and wh.- as a matter of 
 (act, as the ret'ordn discIo!»ed, was at that time prosi'cuting such a 
 suit. Again, it provides tor tlie payment ot'tlie loss, it' any. to tin- 
 mortgagee or its assigns, which is inconsistent with the provisions 
 against assignments, without consent indtu'sed. The [iroceeding to 
 foreclose and the purchase at t^he master's sale wen- within the 
 [•revisions of the m()rtgage clause, and furnished no ground of 
 exemption from liahility under tlie elausos forhidding an assign- 
 ment of the itroporty etc. ahove referred to. Such proeeediniis 
 must have heen contemplated when the policy with this clause 
 attached was issued : and if there could he any douht as to 
 whether they are within the scope of the contract of insurance 
 thun made, the fact that the ct>mpany, through its agent, so ex- 
 pressly disclosed and, although cognizant of the situation, did not 
 cancel the policy, hut retained the unearned preiidum without 
 ohjection must, under numerous precedents of undouhted value 
 and auth(»rity, estop the company from making the defence."' 
 
 211. Contract in the interest of mortgagee. — A covenant 
 in the mortgage held upon c«'rlain property was. that the mort- 
 gagors should insure it for the henetit of tlie mortgagee, in case of 
 their failure to do so the mortgagee might insure it, adding the 
 iMtsv ot insurance to the mortgage deht. 
 
 As to what a mortgagee might do in such a cast', the Supreme 
 Court of Wisconsin has said : " To strengthen his security for 
 the mortgage deht hy an insurance upon the mortgage property, 
 
 ^i 
 
 
 ill 
 
 lioriimii Ins. Co., of Kreoport v. ("Iiurcliill (ISH") 2t» III. App., 2l)tl. 
 
266 
 
 INSURANCE LAW OF CANADA. 
 
 % i 
 
 \\ 
 
 two niothods woro opi'ii to the mortgagoo. lie might have taken 
 a i>oliey directly to himself, insuring his mortgage interest alone if 
 he could find an insurer willing to issue sueli a polioy, or he could 
 obtain a policy running to the mortgagors, stipulating tliat tlie 
 loss, it any, should he paid him as his interest s'liould appear, 
 Perlmiw such a policy would not he an insurance of the mortgage 
 interest as such, but probably would cover such interest. 
 
 Either mode would protect tlie mortgagee's security under liis 
 mortgage, but with this difterence : Had the polii-y run to liimself 
 alone, insuring only his mortgage interest, it would not he <lefoated 
 by an unauthorized insurance upon the same jiroperty olitained hy 
 the mortgagors, while a policy running to the mortgagors generally 
 would be defeated l>y such uiuiuthorized insurance. 
 
 The policy issued iu this case insured the mortgagor against 
 loss, but provided that the loss, if any, should be payable to the 
 mortgagee as his interest should appear. There was a [trovision 
 tluit it should be void if the assured obtained other insurance on 
 the property c>r any part thereof, without consent of the comitany, 
 etc. The mortgagee \mi\([ the premium, the policy was delivered 
 to him and he retained it without objection for ucarlv a vear 
 before the property- was burned. 
 
 The court held, that this last sti[iulation was biciling upon the 
 mortgagee, and that other insurance without t!ie corsent of the 
 company by one ot the partners (the mortgagors) of licr interest, 
 avoided the policy.' 
 
 212. Insurance for mortgagre creditor— Other insurance. - 
 
 III a very recent Minnesota case it appeared that the owner of the 
 property had obtained insurance on it under a jiolicy in the torm 
 j»rescribed in that State ef)ntaining this condition : " This entire 
 policy, unless otlu'rwisc ])r()vi(lcd by agreement indorsed hereon 
 or added hereto, shall be void if the assured now has, or shall 
 hereafter make or procure, any otlier (tontract of insurance, 
 whether valid or not, on property covered in whole or in part by 
 this policy.'* 
 
 The owuiT procured certain other insurance which was 
 expressly allowed. .Vfterwards a loan was procured from a third 
 party, and secured by a mortgage upon the property insured, in 
 which mortgage it was covenanted that the mortgagor would 
 
 I (iillctl V. Liverpool & London & Globe Ihh. Co., (1888) 7:1 WIh. s!o:t. 
 
INSl'UANCK r.Y MOKT(iA(iKK OK MYrctTIIErAKV CUEDrroH. 
 
 257 
 
 obtain iiiKurancc on tho iiropiTty payiiliU' to tlio inortf^atji'*', or 
 upon failure to obtain it, the niortsrajrei' nu^ht insure it and vharjro 
 the cost to the mortpijcor. The representativeH of tlie inortj^aifee, 
 before the rt'cordiui? of tiie niort«jage, obtained insurance on the 
 property, and after the reeording of the niortgaj^e, notitied the 
 niortj^agor of the faet, antl de«lufted from the amount oftlieh>iu» 
 transmitted to the mortgagor the eost of the insurance. 
 
 The property luiving been destroyed by tire wlien tlie iissureiJ 
 brought action, the comjiany claimed by way of defeiuM- tliat the 
 condition above stated as to otlier insurance had been violated by 
 the taking of the insurance by the agents of the niortgiigec, and 
 that a forfeiture of the policy resulted. 
 
 In their opinion on the case presented, the {Supreme Court 
 restated the established rule, that an avoidance «)f the p()li<-y 
 would not be the effect of any contract of insurance whidi might 
 have been procured by the mortgagee insuring oidy his own 
 distinct and separate interest as mortgagee, so that the payment to 
 him un<ler the policy would not have the efti'ct to extinguish tlie 
 mortgage debt, but only to subrogate the insurance company to 
 liis rights as creditors of the assuretl. 
 
 They held, that under the facts the assured co\i]d not be saiil 
 to have procured the additional insurance, but subseipient ratili- 
 cation would have had the same effect as prior authority. They 
 said, however, ct)ncluding the opinion, that the inference that the 
 iissuri'd consented to or atlojited or ratified the additional insurance 
 as one covering its interest as owner, with the legiil eflc'ct of 
 avoiding the insurance which it had i)revioiisly jirocuicd for its 
 own l)enetit, is not justiiieil. unless at least the assur«'d either 
 knew that such was the nature of (he insurance or had such notire 
 of the fact that, by reason of some duty towards the insured, it was 
 rccjuircd to make incpiiry concerning it. 
 
 As we have said, tlu> assured did not know the fact : and 
 ;(ltliougli it might have had reason to suppose it possililc. or even 
 |ii'obablc. that the insuranci> etfccted for the benefit ot the mort- 
 iiagec might be in such form as to also insure to the lichctit of the 
 assured, yet tlu' assured was under no obligation or duty as 
 respects the insurer to make in(|uiry respecting that m.itter. The 
 insurance had been procured from other companies, not by the 
 assured nor by his authoritv, but bv a tliird party. The more 
 17 ' 
 
 ( ; ■; 
 
I'i J ■ 
 
 ( 
 
 
 258 
 
 INsniANiK, LAW (iF CANADA. 
 
 Ihiliiri' (if til"' :Hsiiretl iiiidor tlic liriMiiiistjiiici's to ropiidiii''"' tlic 
 iiftiiMi <»t" tliirf tliinl |mrty, ai-tiiii;- as siuciit tor, aiitl tor tlic ln'iu'lit 
 o*', iiiioilicr [(crsoii, tin- iiiortu;;i,<;i'i', would not aiiioiiiit to an 
 jic'i'iitaiici- ot'tlu? rontrui't so I'aras it mii^lit I'oiistitutii an insuranro 
 ol'iis interest. It'tlio assuri'd was williu!;: to pay lor tlic insnranto 
 tor tlio hi'ni'ilt of the niortijairct', as in tiuM it airrt-cd to do, its 
 rolarions to tin- niorti:;u,i;«'i' did not roiinirc it to make .nijuirv as to 
 tilt' form of tin' jiolicii's. It was t'liouijh that the niorti^aircc, who 
 
 had takm tlu-ni out, was satisliiMJ with then 
 
 N 
 
 or ilnl 
 
 th 
 
 <'ir>MinistaiH't's nniko it tin- duty of the assured towanls the insurer, 
 a siraiiii'er to those eontraets, to in(|uire and sei- to it that the 
 suh>e([iient insuranee was not in sueh lorin that, it' the assured 
 shon'd eoiisent to or ratify the siune, it (the assured) miu'lit claim 
 sonu' I)onelit ihen'l'rom. It is enoui^h that the assured neither 
 
 pn 
 
 ured such an insurance uim- -luthorized it, nor knew that it had 
 
 been jirocured nor even souiijht or i'ontemi)Iateil. so far as appeal's 
 any hcnelit to itself therefrom. The luirden of proving ratifieatim 
 was oil the insurer, and we think that the ease 
 showinii- it,"' 
 
 falls short of 
 
 212a. Insurance for mortgagre creditor — The Xew Yoik 
 Court of Aitpoals has in a reeoiit ease held, that whero an insurance 
 l»olicy [.rocured by the owner of tin' tee provides for the payment 
 of tlu; loss to the inortijagee us his interest may appear, an accord 
 anil liatistiietion entered into between the insurer ami tin- owner is 
 not a bar to a recovery by the mortgagee from the insurer of his 
 damagi's, as his right thereto appeared on the face of the policy in 
 which he had vested interest, and which I'oustituted a contract 
 between himself, the owner, and the insurer.- 
 
 Follett, Cli. .r. for the court said : " Had this jiolicy provided 
 that in case of loss the damage should be paid to a person having 
 no interest in the insured [iroperty, such person would have been a 
 miked appointee, the same as though the damages had been 
 <lirected to be paid to a bank, or to any collecting agent and the 
 owner could have settled the loss and released the insurer on his 
 own terms. Ft may be that the sanu' rule would have been 
 appli 'dile as between the insurer and the appointee, had the loss 
 
 ' Church of St. (SeorKe, of tilencoe v. Sun Firt- OiHw, of Ijondoii (Minn. IWKt) ii't 
 X. W. Hep. Wilt. 
 
 ^ Iliithawiiy V. Orient Ina. Co. (IKlfcJ)!;^, N. Y. HW. 
 
IXSl RANCH BV MollTtiAilEK i>K IIVI'OTIIKCAUV iKKKITDK. 
 
 liiV.J 
 
 • IS 
 
 ir 
 
 a 
 
 J) r.-! 
 
 Iifcii payulilt' " to iiiurti^au;!'!' (siiiiply nainiiiu' him)."' haviiiif an 
 iiiSiiiral)U' iiiti'p'st wliirli war luitluT known to nor iK'scriltt'cl l»y 
 tho insnivr in its policy. Tlic ritjlits ot'an ajii'Dinti't-. an aycnf. or 
 flic triistct,' ot an express trust, wiio lias no inttTt'st in a contract 
 which lio may enforce are unite ditterent from those of a per-on 
 havinu; a vested loifal interest in a contract created l>y th" eon- 
 cnrriMit action of all the partie> to it. 
 
 The (|nestions de<-idi(l in 'l'ra<ter'> Ins. Co. v. RoI»er!s. li Wend. 
 104 : Tillon v. Kini^ston Mnt. Ins. Co. N". V 405 : (Irosvennr v. 
 Atlantic Fire Ins. Co. N'. V ••'.HI, and I'.iitKalo Steam KiiU'ine 
 Works V. Snn Mat. Ins. C ». 17 X. V. 401, arc not inv ilved in tiie 
 euf-e at l>ai', and it is iimiec,--ary to harmoni/.e those ami kindred 
 tleeisions. In the ease> citi'il, the owners of property insured it in 
 their own names, the io^s, if any. i>ayahle to niorti-'aifees : i the 
 insurance was us^i•^ned with the asr^ent of the insurer to ilie mort- 
 ^■ay'eos for tlu'ir seii,,i'_. , and hetoro a loss oerurred, and while tl;e 
 t'ontnu't of insurance was in part executory, the owner increased 
 tlio rirtk or did a prohihitc(l act, or omitted to perfom some act 
 leniiired hy the policy. The <pU'stion ii\ these eases was, whether 
 tho violation of the contract hy the owner was a tletence to an 
 jiction hy or tor the heiietit of the mortt^aui'c. Xo such ipu'stion is 
 involved in the ease at the har. The liaiiility of the insurer is 
 admitted, ami tho ipu'stion hero is, whether tin- owner ot'the i)rop- 
 ert.y and the insurer may, witlnuit the coneurren<e ot the mort- 
 tragee, ott'ect an accord ami satistiiction without the assent of the 
 latter." 
 
 " It is a sfonoral ride that, where a domuml is owned hy several 
 hy such a unity of interest that all must l>e Joined as i>artios in a 
 strictly personal action for its recovery, a case of the claim hy one 
 of the owners is art etteetual as a release o; all. Mut this ride has 
 its exceptions. The owner iiere was not a necessary party plain- 
 tirt to an action for the recovery of tlie amount due from the 
 insurer, for the whole amount .vas reeoveraltle hy an action 
 itrought hy the mortgagee imlividmdly (l>akin v. Liverpool k 
 Lomlon (fcCJlohe Ins. Co. 77 X. Y. iIOO), though a Joint action hv 
 the owner and the mortgagiie could have heen maintained. Winne 
 V. Niagara Fire Ins. Co. !♦! N. Y. ISf). 
 
 In ease a claim arises in favor of A. and IV against C. out of a 
 contract entered into hy the three to which claim hy the contract 
 A. has the prior atid IJ. suhsotpu'iit right, C. and B. cannot without 
 
 ■ ■ m 
 
 ! f, 
 
 - Jl 
 
 u 
 
 •|:-i 
 
IM 
 
 260 
 
 INSURANCE LAW OF CANADA. 
 
 Ill 
 
 1 n 
 
 Wifi 
 
 the conBont. o\' A. eftect an accortl and Hatisfaction wliich will cut oft* 
 the right of A. Ennis v. Ilarrnoiiy Fire Ins. Co. 3 Bosw. 516; 
 Cromwell v. Brooklyn Fire Ins. Co. 44 N. Y. 42 ; Reid v. 
 MeCrum 91 N. Y. 412 ; Baltic v. Dobin 67 Barb. 507. 
 
 In Cromwell's ease a house and 1 )t had been sold under an 
 executor}' contract by which the vendee convenanted to insure the 
 liouse tor the vendor's benefit. The vendee went iuto possession 
 and insured the house under a policy payable to the vendor in 
 case of loss. On the expiration of this policy the vendee took out 
 a new one payable to himself, and during its life the house was- 
 burned. The vendor had assigned his interest in the contract, 
 demanded payment of the loss, and forbade its payment to the 
 vendee. The insurer disregarded the demand and notice and paid 
 the amount due under the policy to the vendee. In this acti<»n it 
 was held, that the assignee of the vendor was entitled to recover, 
 notwithstanding the actuwl and satisfaction Itetween the iiisure<l 
 and tlie vt'udec. The principle niton which this decision rests is, 
 that the vendee and insurer could not ett'ect an accord and satis- 
 faction which would bar an action Ij^- one having a prior ecpiitable 
 right to the money due under the contract. 
 
 Reid v. McCruni stipra is, in its facts, a stronger authority \\i 
 support of the judgment in tlu^ case at bar. In that case the 
 owner of realty mortgaged it, coveminting to keep the buildings 
 insured and the policy assigned to the mortgagee. 
 
 Afterwards McCrutn ac((uir<Hl the title to the property subject 
 to the mortgage and <d)tained policies of'.nsnrancc on tlic buildings 
 
 whicii were indorsed bv the insurers : '• Lossifanv i>aval)le to 
 
 Reid, mortgagee." Subst'ipicntly McCrum jirocured the insurers 
 to cancel the indorsement and to write on thi' policies. • the mort- 
 gagees interest having ceased the loss, it any is now payable to 
 
 McCrum as owm-r." The mortgagee's interest liad not terminated 
 ami he had no knowUMlgt- of the change. After this th<' Idiildings 
 were destroyed by tire and the mortgagee began an action to forc- 
 closi' his s»'ciirity lUiiking McCh'um and the insureiv parties 
 defendant, asking that McCruni be compelled to assign the in- 
 surance and the insurers re(|uired to pay the loi-s to the plaintitl'. 
 It was held, that the policies could not be legally <'haiiged without 
 the asstMit of the mortgagee, and that he was ei,title<I to recover 
 the loss Inun the insurers." 
 
■fWW" 
 
 INSI KANCE l!V MOUTCAiiEK OK II VIM)TiIECAUV CUKDITDU. 
 
 201 
 
 212b. Insurance for mortgage creditor. — In u WiHcoimiii 
 ciiso tluTc was iui awiinl of arbitrators nmU'r tlio provision ot tlie 
 polic}' ruhitiiig' to such in case otMisaiiTcciuetit as to tlio amount ot 
 a loss, ami it was contonUi'd hy tlio insuriT that tlie appraisciiK'nt 
 was strictly uctordiiiij;' to the jioiicy, and tlic awards wvvv l»inding 
 and conchisivf as tf> tiic anioinit of tliclossor daniai'-c. The policy 
 in the case was issued to a niortiragor with a provision t'or |>ayineiit 
 (>t' the loss to a mortgagee '• as Imr mortgage interest may appear.'' 
 It was contended on liehalf of the mortgagee that tin' ap- 
 pi-aiseiuent#\vas not in coniiiliance with the provisions ot the policy, 
 in that the mortgagee was not a [larty to the award and had no 
 niitire thereof. These contentions presf-nted tlic ipiestion to the 
 Suiireme Co\irt as to who in siieli a case was entitled to act in (ho 
 matter of adjustment of the loss. The court very learnedly and 
 fully, upon authorities, discuss'-d this ([uestion, and as an ex- 
 position of the law thereon we give such p(M'tions of the opinion as 
 are [)ertinentas follows : 
 
 •' Nearly all, if not all the authorities cited which held that 
 
 the mortgagee is the sohs party in interest to the insurance, and 
 must i>e represented in the arl)itration or other adjustment of (he 
 loss, are easi"^ where the direetion is to pay the whole insurance to 
 the mortgagee or other third person, who therehy becomes tlu! 
 assignee of the policy and tlie loss. In this case it could m)t be 
 ki.i wii what interest the mortgagi'e might have in the iiisurane*^ 
 or wluit interest in her might api»i'ar. First, her interest was not 
 commensurate with the insurance ; second, it was not known what 
 part, if any, ot the mortgage would remain uniiaid by the mort- 
 gagor. It was thereliu'e uncertain what interest the mortgagee 
 had, if any, in the insurance ; and thi' assureil as the mortgagor 
 had at least the controlling interest in it. She was the owner of 
 the property and of the eipiity of redciuption in th»^ mortgaged 
 ]ir(?»nises and as much or more interested in paying the mortgage 
 as or than the mortgagee in obtaining the payment. It tbllows 
 that in all eases where the language of dire<'tion is, that the in- 
 surance should be paid to the mortgagee '• as her interes( may 
 appear," the assured mortgagoi' remains the responsible party, or 
 the party in inti'rest, to control tlu' insurance and the"ailiustmeiit 
 ol the loss. This is the distitu'tiiui iis I understand it, which 
 divides the authorities on the ipiestion. 
 
 In Brown v. IiiHiirance (-o. r» \i. I. :{i»4, cited by respondent's 
 
 m 
 
 
 
IP 
 
 262 
 
 INSURANCE LAW OF CANADA. 
 
 oouiisel, tlm dirwtion was "loss or damage payable to the mort- 
 gagoe." It was held, that this was an unconditional assignment of 
 the policy and the loss, and that the assured or mortgagor had no 
 interest in it, and that it made no difference whether the mortgage 
 money was unpaid or not. It was therefore held, that the mort- 
 gagee was entitled to control the adjustment of tlie loss, or any 
 arbitration for that purpose. 
 
 In Hathaway v. Insurance Co.' 11 N. Y., Suppl. 413, the 
 mortgagor agreed to have the premises insured, and assign the 
 policy to the mortgagee. lie obtained the insurance but'did not so 
 assign the policy to him. It was held, that the mortgagee was 
 entitled to the insurance moneys as an assignee and must have 
 notice of any adjustment of the loss. The cases cited in the 
 ojtinion are cases of a full assignment of the policy ; and the court 
 held also, that such cases did not conflict with those cited by the 
 counsel on the other side, when the insurance money was payable 
 to the mortgagee " as his interest might appear," or where there 
 was not a full assignment of the policy." 
 
 In the caso of Hall v. Association 04 N. 11. 405 ; s. c. 13 
 Atl. Rej>. (i48, the insurance was payable to the mortgagee "as her 
 interest might appear."' The assured brought the suit atul the 
 defendant pleaded, that he was concluded by an arbitration agreed 
 upon. The court held, tiiat the assured in sui-h a case had the 
 right to sue alone, iind that the rights of the mortgagee would be 
 as fully protected in that as if she had been joined in the action 
 and that the assured had the right to do anything within the 
 contract, even to a hn-a- h of the conditions and f(U'feiture. ]>ut 
 here the matters of theioss were submitted to referees by an iigree- 
 mcnt of the [parties, iind they adjusted them iit a sum less tlian tlie 
 mortgage dcltt. The (|uestion was, whetlier the mortgagee wiis 
 bound liy such an iiward with.)Ut lu'r consent. It was held, tliat 
 she was not, l)ecaiisc the policy did not provide for iiii arbitration. 
 If it luid so provitk'd, the i»ur[ioi'f of thi' decision is thiit the niort- 
 giigcc would have liccn bound. 'i'his ciisc is therefore an I'xcep- 
 fiou to tlic iinthoritics citi'd oil (lie other side, and is against the 
 contention on bchiilf of ihc nioi'tgagee. This case is in accord with 
 2 Morse oil Fire Insurance 11-JJ. and Martin v. Franklin :5S X. .1. 
 L. 110: '•Thai the iiicrc designation ot another to whom the 
 insurance i> payable, does not alter the contract ot insurance in tlie 
 least. It is slil! the owner ot'tlu' property who is insured, ami the 
 
INSURANCE UY MORTGAGEE OR IIYPOTHECARY f'REDlTOR. 
 
 2(33 
 
 1- ■ I: 
 
 continued validity of the policy is dependent upon tlie perfornnincc 
 by him of the conditions embraced in it. 
 
 It is doubtful whether a case can be found that liold?; that 
 anything less than a complete and unconditional .assignment of the 
 jtolicy will take away the right ol the assured to sue on it, and to 
 do any act in respect to the los.s, or its adjustment within the 
 jtrovisions of the contract, without consulting tlie person named in 
 the policy to receive the money after the amount is determiiu-d. 
 In all such cases the mortgagee may be said to have a conditional 
 interest in the policy, and it may be proper for the assured to vnu- 
 i-ult him in any adjustment of the loss or even join liim as a imrty 
 plaintiff as in "VVinne v. Insurance Co 91 N.Y. 185, but it is neither 
 imperative nor necessary. Tlie owner of the premises lia^- an 
 insurable interest and he is the assured, and the only i)arfy to the 
 contract and personally bound by its conditions and he hiis the 
 power to do anything within tlie terms of the contract with or 
 without the consent of the mortgagee. 1 "Wood of Fire Jnsuniiu-f 
 299. 
 
 The court reviews and comments upon Tliatdi v. Insurance 
 Co. 11 Fed. Rep. 29 ; Grosvenor v. Insurance Co. 17 N. Y. :191 : 
 Terr v. Insurance Co. (31 N. Y. 214; Brunswick Saving Inst. v. 
 Commercial Ins. Co. (58 Me. 813 : Lorini; v. Insurance ('o. 8 Giiiv 
 28 ; Franklin Sav. Inst. v. Central fns. Co. 119 Mass. 210 ; Amazon 
 Ins. Co. 125 Mass. 431 ; Nevins v. Insurance Co. 2;') X. II. 22 : 
 Blanchard v. Insurance Co. 33 N. II, 9 ; Baldwin v. Insurance C'o. 
 (to X. IL 1(34 ; and Piipke v. Insurance Co. 17 Wis. 378. . ..n- 
 cluding with the holding tliat the assured liad the riglit and p iwci' 
 to enter into th? appraisement or arbitration according tn tli" 
 tt'rnis of the contnict witliout notice to the niortgngcc and with ii' 
 licr apjiroval.' 
 
 2120. Policy payable to " creditor a» his interest ma." 
 appear" Waiver of conditions by payment into court Cre- 
 ditor must show extent of his interest — 'fiu' lit'c a.-^oi'ialiui: 
 Ibis case paid the money due U|ioii tin- policies it had is^.^e(l into 
 court, ami the action again>t it was (liscoiitiiiue(| as to (lie a-»e'ia- 
 tion, leaving the parlie- jn'esiMiting contlicling claims \>> the iV.nd 
 to havi' their rights settled by the court. 
 
 T!ie [lolicies were i.-sued to secure a crcdiloi' the debt due him 
 
 i 
 
 i-t 
 
 UMiaiidds V, Am. I'Mir Iiis. Cd., (it I'liilii.. (\\i-, iMilli ,M N. \\ . liip :',!'(', 
 
 
 I. 
 
!f^ 
 
 'J64 
 
 INSURANCE LAW OF CANADA. 
 
 :iM' 
 
 from itirtuit'd, ajul were pa ablo to him a:* a " cfoditor as liis in- 
 terest, may appear." Tlioy oontaiiunl a clauso tliat a claimant 
 must ali(>\v ail insurabie interest ; that a oreditor could not recover 
 more tliar, his hoint fiile indebtedness with hiterest, and that as to 
 till anioiiiits in excess thereof the policy should he void. 
 
 TSic (;umplaint of the executrix of deceased, after an unsatis- 
 factory showiuy as to the exact state of aeeonnts between deceased 
 and the creditor, was dismissed on motion of tlie latter, and a 
 
 decree entered in his favor for the whole 
 
 ^um. 
 
 The Sunreme Court of Xew York in General Term lield that 
 
 tl 
 
 le (Itsniissal o 
 
 f tl 
 
 le comi) 
 
 ilaint 
 
 was an error, and upon the tlieory 
 
 that the trial judge, considering the effect of the clause above 
 quoted rroju the policy, concluded that the creditor alone would 
 he ejititled to the amount, considered the effect of that clause ui)on 
 tlie rights ot the parties, as the case stood iii»on the proofs, in the 
 
 toll 
 
 owing language 
 
 It is true that, had the association n 
 
 mained a party and defended, making the [loint that the execu- 
 trix or' deceased had no interest in excess of what was the actual 
 iiidebtt'dness, this condition in the [)oliey as to such association 
 might he available. We say advisedly, ' might \h' available," be- 
 cause il is not entirely clear that, as against her, resort could be 
 had to this condition. Its evident purpose is to [»rotect the com- 
 pany against a creditor's speculating U[K)n the life of a member 
 beyond what is actmdly due him. Where, theri'fore, the assign- 
 ment rVom a meml)cr to one claiming to l»e a creditor is absolute 
 it» forn», thus leaving no claim in favor of the member, tlu^ com- 
 pany is oidy lial)le to the creditor to the extent of his hitixi fiile 
 deb). That this must be the correct view is apparet\t if we con- 
 aider the results to the member of the payment to the creditor of 
 his entire indebtedness betbre the policy matured by death or 
 limitation of time. It could not be held that, because there was 
 o indebtedness, the association would be fret^ from anv o])lii>'a- 
 
 n 
 
 tu>n to 
 
 piiy 
 
 the mnmber, 
 
 The true construction, we think, therefore, of this provision 
 is, that it was intended to protect the comi>any against creditors 
 or other persons speculating in policies ot tlie company issui'd to 
 members. Ihit the company, by payment into eoiirt of the full 
 uinoinit of the politiy, having waived not only that condition but 
 all others, such condition was not available in the creditor's behalf 
 to defeat the right which the executrix might have in the policies. 
 
INSURANCE IIY M0RT(iAt5EE OH HYPOTHECARY CREDITOR. i:b5 
 
 In Other wordst, the Ht'o associatiou alone had tlie right to uisist 
 upon that condition, and its waiver and paymonts do not give the 
 creditor the right to take the l)enefit of it an<i chiini the siirphis 
 over this (h'ht on tlie ground tliat phiintitt" had violated or tailed ti' 
 pert'oriu any condition that was a right in favor of the company 
 tiiat waa not assigned to the cre<litor." 
 
 In such a ease the opinion of the court further was that the 
 hurdeii of showing the extent of his interest was ujion the cre- 
 ditor, after the plaintiff liad made a i)rii»<i fncie case in her favor 
 upon production of the pol'' ies of insurance.' 
 
 212d. Contract subject to creditors' claims. — The contiaet 
 is a chose in action and the asstired's interest in \t can he reached 
 hy his creditors.-' 
 
 ' El8l)erg Mcux v. Ilwiirds (IH1I2), (W Hun. 28. 
 
 - Cliirke on Ins. § 77, iiiul see VVeekes v. Frawley, 2;t O. II. ill'). 
 
 !i:ih 
 
 fcfifl 
 
 ; 
 
 III 
 
 ! it' * 
 
 I! '' 
 
1 1 
 
 -ih 
 
 tff. 
 
 #1)1 
 
 CHAPTER VIII. 
 
 insi;h.\xce for tiik I5^:x^:F^r of wife and ciiildhkn, etc. 
 
 . (V 
 
 I* 
 
 2i:i. Gkxkrai. hkmauks on iiii; 
 
 I.KCilsl.A riD.N KOH 'I'lli: I'I!(1TI,< HON OK 
 
 ■•HKi'KitiiEi) hi:ni;ih'iakii>. 
 
 2U. IN.SITHANCK K(»H TIIK HKNKII I' 
 l)K Wll'l-; — rHKIIKl KASi: i]| Wll-K— 
 SECOND .MAKKIACl; XO iHANHK HI' 
 
 DiKKcTiox AS i(» i'avmi:nt— i;x- 
 
 ll.rslOX OF liHAXDCim.DKKN— I'OLlfY 
 NOT ASSI(iNi;i> I'UOPKRTY KKgl'llATII- 
 
 i;i) I'D i)AU(iii'ri;K poi.k y in kavoh 
 
 OK DAl'OHTEK— HIIXKUl I AHY rilKlIK" 
 CEASEI) -KKyl'Ksr IN iltrsT KOH ( HII.I). 
 :!1.5. iNSl-KAXlK loK IHi: IIKXFKIT 
 OK \Y1KK AND (11 1 I.HUKN— \ I'l'ol NT- 
 MIOXT ItV \VII,I.. 
 
 M\. iJKXi;voi.i:xr six iii y -- i;n- 
 
 IHIRSl;.Mi:XT O.N I'Ol.Il Y IN KAVOH OK 
 IXKAXr HKNIIKll lAKY - SIHSKyrKNT 
 lllANliK OK DIUWTIOX UY Wll.l, — Al'- 
 I'OINTMKNT OK I'lll'S TEi:— NO THUSTIII-; 
 
 NAMKD — PAY.MKNT 
 
 TO 
 
 KX 1,1 I'll IHS 
 
 (iUAKOIAN AI'I'OINIKII IN \ I- . llUMi; .V 
 
 si'Ai'i-; sKci'urrY. 
 
 217. Hknevoi.knt 
 
 I' ATI-; I'AYAHl.K TO 
 Cllll.llKEN OK KIKsr 
 
 soi ii:iv— ri.n TIKI- 
 
 ■■ I.Ki. \l. Ill IHS" 
 
 M \i!ni M.i: oM.v 
 !:\. i.r-iiiv OK 
 
 i;ntiti.i:ii to claim 
 
 SKCONI) WIKi:. 
 
 21S. Poi.icY KOK I'lii: ui:m:i-ii ok 
 I iiii.I)1ii:n -- ■|'i:siami:\ iaih' iiiuK( ■ 
 tions -i'o\vi;us OK i;xi: ricHis ani> 
 ■ii;stami;ntaiiy (.iahifian \~ ro 
 
 •HOC 
 
 •:iis. 
 
 L'lO. Policy koh tiik iii:Ni;(ii ok 
 
 •lYlKK -AS>il(IN.Ml:\l' HY W I I'L— SKPA It- 
 Al'l: KSIAIIC. 
 
 22(1. Ixsi'iiAM i: loK nil: i,i:NKiir 
 
 Ol' \VIVi:S AND CIIILDIilV -Ml l'0\VKI! 
 TO DIVLIII' l'oi.lc\ mom:n ,:\ WILL 
 lli:\0(AI'ION IIYI.WV I li.Vl l( AIIN Id 
 
 I'l'lsrAMLN ^AHY 
 
 DIIU•:^■^|ONS- HKNTN- 
 
 CI \TION IIY l:\i:( I'TOII-, OK I'UO'IATI: 
 
 REVOCATION OK l.ltANL I'd MINOU SON 
 — AIM'I.ICATIO.X OK COMl'A.NY TO I'AY 
 MONKV INTO COURT — KX<l.l'SIO.\ OK 
 ADMINISI'KATOK - INSl'UANCE .MONKY 
 NOT Slll.lKCT lo CUNIHOI. OK CKKUI'l- 
 OKS-OKDEH DIUIXTINO .MO.NEV IN 
 (Ol'HT TO HE I'AID TO CO.Ml'ANY — 
 .lOINI' TENANCY -1>U\YER OF XO.Mi- 
 NATION. 
 
 221. TkANSFKK liV WIFE NUI.I. IN 
 yCKHkil'. 
 
 222. E.XE.MI'TION OK I'OI.ICV KOK THL 
 HENEFIT OF THE WilE. 
 
 22;J. Interest OF wife in husuand's 
 
 POLICY CEASES JN CASE OK DIVORCE. 
 
 224. HKylEST OK POLICY TO WIKE— 
 EXECITORS PLEA OF I'i.ENE ADMINIS- 
 I'KAVIT- A.SSETa yl'AXDO. 
 
 22o. Appropriaiion kor wife. 
 22(1. Policy foumini; an asset or 
 
 THE CO.M.Ml'NriY, WIDOW ENTITLED TO 
 ONEIIALF. 
 
 227. Death ok iNsriu.D TiiRorou 
 
 CRIME OK WIKE. 
 
 225. UeNEKIT S0< lEI'Y -CHANliE OV 
 DIHECIION AS I'D I'A YMENT-TRUsl- 
 ItlAOl ATlON — liNDoWMLM llJRl'IKl 
 CAIi; — II^SIAMI'N I AKY III HEC I'IO.nS — 
 liltilll' OK f-OCIETV Id I.l.Mir iiENi:- 
 KICIAHIES TO ( EKI'AIN < 1. ASS -SI' ItSI 1" 
 TCnoN OK OTIIEUS IIY W I I.L— I NTERLS r 
 AND lilCIIIS OK INsritED AND OK 
 HENEFICIARIES -Asslo.V M ENT OK POLICY 
 
 I'll siariii: demi — i-.a iih;n( l uy aik'- 
 
 llAVrr OK LOSS Ol Idl.U Y. 
 
 22sl. .Vssi UANciis I iKi:<'i'Ei) i\ o;\ 
 ■I'ARio >viTii «rEiii:< (o.MPAMi:s- 
 
 Assl'HED I'N.MAHUIi:;! .-.I' IIIK TIME- 
 POLK lES AKTKR MAHUIAIJE KNDoKSl.il 
 IN KAVOR OK Win; ADMINISTUATOUS 
 
 OK 
 
 \ioNi:v. 
 
 • TA Ti: 
 
 :Nri:'i.i.i) to insciiani i. 
 
 1^ 
 

 INSURANCE FOR BENEFIT OF M'IFE AND CHILDREN, ETC. 
 
 267 
 
 •£Vi). TkSTAMKNTARY I) I R KrTIONS 
 WITHIN TIIK MKANI.Vl. OK Till-; OX- 
 TAUIO ACT. 
 
 Si\. V A Y M K N T OK I \ S I' U A S I V. 
 MONKYS INTO (OrKT. 
 
 •£\'l. NON - PAVMKNT or I'KKMII'M 
 NOTK— HKNKKITS INTKHVIVOS. 
 
 '£X\. SoclKTIKS INCOltPOKATKIt I'NDKIl 
 
 I'm: iiKNi:voi.i:Nr socii-niKs act. 
 'SW. Rkci;nt amkkican kkcisioxs - 
 
 HKNKFICIAI. INsrUANC !•; CKRTl F[C ATK 
 IX FAVOR OF " FA.MII-Y" — GRAXD- 
 
 ciiii.i)ri:n not kxtiti.kd to hi:xi:fit. 
 •£Xf>. Policy for thk iifxkfit of a 
 
 SISTKIt ASSfRKIl rN.MAKllIKI) AT TllK 
 TIMK <IIAN(a;OF HFNMFICIAHY A FTI.R 
 MAURIAIil: -FIKSr I'.KXKFICIARY l)K- 
 Cl.lXIXIi TO Sri!KEXl>l;l! I'OI.K Y FOU 
 THK liMXKFIT OF IHI-: MOTH KR — I'OI. ICY 
 srRHKXDKKl:!) AFI'KH MAHRIACK AXU 
 
 XKW i'o!,ic\' i;ffi;( ii.i> o\ hkhai.f of 
 wifk— xo i'owku of revocatiox. 
 
 2;K>. Foi.icv for thk hfxkfii' ok 
 wiFi:-sritREXi)i:H xi:\v policy on 
 
 IIKHAI.F OF HROTHKK ASSKCFRITY FOR 
 DKIIT — I'ARAi'HIORNAl. I'ROI'KRTY - 
 PAKOI, DKCI.ARATIONS IN I'AIS. 
 
 ZTl. I'OI.ICIKS FOR IIIK HKNKKIT OK 
 WIFK AXI) CIIII.DKKN PI{|;( EDKNCK OK 
 
 xviFF srKRi;M)i:i! of poi.iciks hy 
 
 ASSl-UKI) CI.AlMIXi; TO ACT AS crAlll)- 
 
 lAX iiiR HIS ciiiM)Ri:x— snRRi;xi>i;i« 
 ((F i.APsKi) pi)i.icv ' ri:i,ii;f acaixst 
 
 FORFKITIIRI-; IMR !!I{1;A( 11 CAfSFI) IIY 
 IliNORAXCi: , I'ARTI ■ll'ATION Ol' COM 
 I'ANV MY FHAC;) -COMl'ANV i:-<TOPI'i;i» 
 
 li) DioFioNU ov rm: croitxii of xon- 
 
 PAYMFXr 01' riiKMIl'M. 
 
 iW. Sl-RIIKXDKK OF l-OI.U Y ISSfKU 
 TO OXK AS TRCSTKK FOR Ills i II ll.llRFX 
 -Sl-BSTITI'TIOX OF XKW POLICY IX 
 THK XAMK OF SKCONI) WIFK - FAII.UitK 
 TO PAY PUKMUMS WAIVKH HY COM- 
 PA.NY 1SSIT1X(, XKW POLICY l>l\KI!SIOX 
 OF TltrsT Fl'XI). 
 
 2:i!». HkvISKK STATFTKS of (^ITKHEC, 
 liWH. ARirCI.K 12(K & SKIV MAUUIACi: 
 t OVKXAXIS AXI) KFFKCT OF MAHHIAOi; 
 rPOX PROPKRTY OF CONSORTS 1,1 FK 
 I.V-fRAXCK OF H^SIIAXI1^- AXO 
 
 PARKNTS .tS VIC. C-. 4ti -SI AlCTK II!:- 
 SPKCTIXt; I.IFK IXSI'RANCK AND COM- 
 MfXITY. 
 
 :il(l. Skciioxs of thk oxiaiiio in- 
 
 SI'ltANCK ACT, 181)7, tXI VIC, r. :l(l. IX 
 AS FAR AS THKV APPLY lo Sl'lUKcr 
 .MATTKIl DKAI.r WITH IN THIS CHAPTKI!. 
 211. STAICI'ORY KXACTMKXTS oi- 
 DKITISH COl.t'.MHIA - COXSOLI llATlll) 
 AITS, 1888, C. 80 — FAMII.IKS IXSIHANCK 
 AIT, 181».5, HRlTlsH COLI'.MIIIA. 
 
 242. Hkviski) .statctks m nova 
 
 SCOTIA, 18S0, f. !M — MARKIFh WOMKX's 
 
 propkrtv act, 1884. 
 
 24;{. Kkvisi-;i> staitifs of maxi- 
 ToitA, ISVl. c. 88, nnd 18i»2. c. !Ci. 
 
 241. .\i;w Hri'nswii'K li:, isi.atiov, 
 
 I'. 2.5. ."Vlll M.MiCII, 18i»."l. AX ACT ID 
 SKCFHK TO WIVKS AXI) ciiii.hukx iiii; 
 IlKNKFIT OF I.IFi; IXSCRAXl I;. 
 
 21."). STAiri'.nn' i:n aci'mlxi'.- pimnck 
 i:i)WAHii isi.Axn, :i.") »t ;«t vie, c. :<(i - 
 \x Acr iii:i.AliN<; lo i,n i: Assnt 
 AN( i:. 
 
 213. General remarks on leg^islation lor the protection 
 of preferred beneficiaries. — TluMliiU'rciit |ir<)viiiccs ot'tlu' I>>)inin- 
 ion have eiich sjiocial U'lrisliitivo cnactiiu'uts providiiiL'" fnt- in- 
 surances ill tavor orwitb and cliildrcu ami in soiiu' ot tin in nt'tlic 
 mothor ami Imsbaml also : oalkul in the Ontarit) Insurance Act. 
 " i»ivfoiTC(l beneticiarios." ' 
 
 Tlioso provisions will lie i'onnd at tlio cml of this > hai»tcr 
 lollowinu: the jurispniih'ncH'.- In sonu 
 policies so assigned may hi' doalt with hy tii(> assur( 
 
 the [ii'ovuicci 
 
 ami 
 
 the 
 the 
 
 assigni'c actini;' tosrether, in others they have m> power to do so. 
 
 I R. S. y. 188S art, -mSii ^v mmi. Out. In-. Act IS'iT. (id \"u- o. Mk -. l.".:i. Kin. 1.. S. N. 
 S. I8,S0. c. IM. New Uniiiswick Suits, of 18,i:), c 2V I^ S. M. iMl .-.St. (.^miHoU- 
 il.lU'il ,\('t,s <it \\. (\ lSS,s c. SO ; ;t.") & :i(i Vie. c. .'Ml d\ !",. l.l • •>>.•.■ ,y(.'/(i S 2:<!l fl HI/. 
 
 t ■ •. 
 
 
 '■ 'I 
 
 
 1 
 
 '. 
 
 1 
 
 ■1 
 
 ' I i 1 i 
 
 n 
 
 , 
 
Hi 
 
 m 
 
 2fl8 
 
 INSURANCE LAW OF CANADA. 
 
 Tliii!*, ill (JiU'boo, it liii!* l.een held that the api»roiirint»Ml policy 
 cannot 1)0 dealt with even hy both parties acting together. The 
 words of the statute " shall be unassignable by ciV/fe/'ofsnch parties" 
 have been interpreted as equivalent to " shall bo unassignable by 
 liiith of such parties." ' 
 
 While in Ontario it may be assigned if the parties are of age 
 and consent. 
 
 In British Cohunbni the law is similar to tl>at in Ontario.'' 
 
 Id Manitoba the appropriated policy wiis formerly unassign- 
 able by either ot the parties.' Ihit the law has been changed and 
 the parties are now allowed to assign — "save during minority."' 
 
 In New Brunswick the appropriated policy may be assigned 
 when the parties are of full age." 
 
 In Nova Scotia and Prince Edward Island the question of the 
 right to assign the appropriated policy is not dealt with by 
 statutory enactment. 
 
 It has been held in Ontario tiiat the declaration of appro- 
 priation may bo offei'tively made oven after a seizure of the policy 
 I'V a creditor of the insured." 
 
 214. Predecease of wife -Second marriage. — Whei-e a 
 married man insured his life the |'>licy being made payal)le'to 
 his wife Sarah, her executors, administrators, «»r assigns," the 
 wife died before her husband, who nnirrio<l again, and died leaving 
 ji widow and children without having assigned the })olicy or 
 altered the direction as to ]iaymcnt in it : — It was lield that the 
 policy fell under the provisions ot the Act to secure to wives and 
 <'hildren the benetit of life insurance and was for the benetit of 
 the wife absolutely, the words of limitation liaving no ett'ect, that 
 the provision for payment lajtsed by the death oi the wife and that 
 the policy moneys belonged to the persoiud estate of the husband.' 
 
 2 1 4a. Predecease of wife -Exclusion of grandchildren. B3- 
 
 a [policy of insurance the insurers agreed to pay the amount of the 
 iusurance, after the death of the insured, to his wife, or her legiil 
 
 I R. S. Q. (ISSS) 5iKU. Cnssoii v, K.iuelior :< K. .1. Q., S. C. M\ 
 ■-' Out. IiiM. Act lSit7, m Vic. m s. Kil, ss. 2. 
 
 " Faniilies' Ins. A<'t IHi).') (15. C.t c. 'Hi, s :is. ^ H. S. M. IsDl, c. s,^, m'c. 2(1. 
 ■^.W Vic, e, -iti.s. :>. (M;inJ 1S!I.5. " N. H. Acts of IS!).>, cap. 2.), s. 25, 
 ■ We ikes v Frawley Jt O. R 2;n. 
 
 "In re Eiiloii 2H (). If. .")H:t. l)Ut sec in I'm jiS 22il ami 2:tt)a. as to dlcct of law of 
 <'onitnuiilty in Quebec. 
 
INSURANCE FOR BENEFIT OF WIFE AND CIlILnREN, ETC. 
 
 269 
 
 rcprebontiitivcK or, if she should not tliou he living to her cViildnii, 
 or to their guardian if under age. The wife predeceased the 
 insured. Two of her children died heforeher, one of them leaviuif 
 a child : — 
 
 Held, that only the children who survived the wife wcie 
 entitled to share in the insurance moneys pavahle under the jioiicy.' 
 
 214b. Predecease of wife -Second marriaRe -Property 
 bequeathed to daugrhter. — P. effected an insurance on his life for 
 the hciietit oi his wife. The wife died first, and hy her will named 
 P. her universal legatee. P. married again, the contract of 
 marriage stipulating separation of property. There was never any 
 assignment of the policy for the henefit of the second wife. P. 
 j)redeceased his second wife, and by his will Vjerpieathed all his 
 ))roperty to his daughter l)y the first marriage The amount of the 
 jiolicy being claimed both by the daughver and the second wit'e. 
 the insurance company deposited the amount in court : — Held, 
 that tlie daughter was entitled to the amount of the insurance.' 
 
 r'1 
 
 214o. Policy in favor of daughter — Beneficiary prede- 
 ceased Bequest Assured re>married. — In 1868, ^f. efiectcd a 
 policy on his life tor the l)enefit of his daughter, who intermarried 
 with the plaintiff and predeceased her father, having bccpieathcd 
 lu'r interest in such policy to the idaintiff (her executor) in trust 
 tor her only child. \Ps. wife died, and in 1877 prior to the 
 marriage of his daughter, he married the <lefendant. In 1S84 M- 
 died intestate, leaving the defendant, his wiilow and one thild 
 surviving, without making any other disposition of his life poliiv. 
 Ill an action by plaintiff against detendant, tiie widow a-id 
 administratrix of M. it was : — 
 
 Helil (affirming 10 O. 11.28;'.) that rlic insurance money t'onricd 
 pai't of the jKTsonal estate of M., and as such was payalilt' to 
 defendant.' 
 
 21S. Appointment by will — lu-tore the coming into t'orcc of 
 ;■);! Vie. c. 39 (0.), a testator insured his life in a benetit soi-lety, 
 
 ' Murray ef <il v. Mafdoiml"), 22 O. U. .Vi7. 
 
 '*' -Ktna I. if»' Insurance Co., depositor: (iaueher e^ (fi petitioners, and liosseli)), 
 pctilioniT. 2 H. .1. Q., S. C, Hlt2, and see 11. S. Q. .■)572 & iViTit enaetinn that pn-dt cease 
 of w ifi' causes policy to revert to insured. 
 
 ■' Wickstced v. Munro i:fA. R »S(I. and see Spiers & Atty.-Genrl. !i L. li. CHt^ 
 ro,g.i,nlin)j; assinnniuut in contniet of marriage not uotilled to company, and ]jabelli( 
 V. llonev, ;« L. C. .1., 252 in/rn S 22(1. 
 
 1 U i \ 
 
 ! M . 
 
HI' 
 
 y. : 
 
 I 
 
 »:- 
 
 m^ 
 
 
 216. Benevolent society Endorsement of policy in favor 
 of infant beneficiary Subsequent changre of direction by will. 
 
 — A tostiitor iiisiiri'il his lite in a l)oiu'V()K'i)t society, rlio policy 
 being payable to liis "widow or orphans or personal represen- 
 tatives," and afterwards on(h)rsed on the policy a direction that 
 the same should l)c paid to his infant daughter. Subsequently by 
 his will he devised the proceeds of the policy with otiier moneys 
 to his executors upon certain trusts. 
 
 Held that the will was inoperative so far as it assumed to deal 
 with the policy which was by the endorsement clothed with a 
 statutory trust under section 5 of R. S. O. c 180 in favor ot the 
 daughter, an<l that as tiie devise to the executors was repugiuint to 
 the trust they were not competent trustees within the meaning of 
 section 11 of the above mentioned Act. 
 
 The mother of the infant having been appointed guardian and 
 having given security for the proper application of the [lolicy 
 moneys, was appointed trustee.- 
 
 2i6a. Infant beneficiaries— No trustee nat .ed— Payment 
 to executors. — Moneys payr.ble to infants under a policy of life 
 insurance may. where no trustee or guardian is appointed, under 
 sees. 11 and 12 ol R. S. 0. ch. 136, (now Out. Ins. Act, 1897, 60 
 Vic. c. 36, s. 155, ss. 2) be paid to the executors of the last will of 
 
 ' Re OfinuToii, Miison v. 0-imeroii "il O. R. tHU. 
 ■i Scott et al V. Sci)(t2l> O. R :!I8. 
 
m 
 
 IN.-IUAN»JK FOR P.ENICKIT (»K WIKE AND I'll ILUKKX. ETC. 
 
 271 
 
 the assiiri'd. ii- pn.vided liy si'c 12. without sfciirity hoing givi'ti 
 liy thom. iiiiil piiyiiu'iit to them is ii <i-iiiiil discliarge to tlif iusiiri-rs.' 
 
 216b. Infant beneficiary Guardian appointed in a foreiRn 
 state -Security. — An iiifaiit was cntitlfd xn ^harc in rortaiii iii- 
 >uraiico nioiifv.^ ai'iTiiing mnh'r a jmliiy n|H>ii thi- life of her 
 (kn-oast'd futhiT. Tln> infant lived witli lai' nintlu'r in a foroiu'n 
 state, and the inothiT had tlieiv heoii aiipointe*' l>y a SniTogatc 
 C'(>urt gnardian of tlu' int'ant, and had given SL'i-"'ity to the satis- 
 faction of that eonrt. The niotlu'r [u'titioned t!.e Tligh Court to 
 lie aiiifointed trustee under Revisi'd Statutes ot Ontario, chap. 13ti, 
 s. 12 (now Out. Ins. Act 18!»7. tU) Vic. c. :')i;. s. 1.").'). ss. 2) to receive 
 the infant's share of the iiisnranee moneys witiiout security : — 
 
 Held, following /?(! Thin, 10 Ontario Ti-actii'i- Ri'i>orts p. 49i», 
 that the security given hy the petitioner in the loreign court would 
 not attacii to her appointment as trustee under the Act : and the 
 court deelii\ed to apiioint lii-r unless she t'urnished the necessary 
 security in Canada. - 
 
 217. Benevolent Society -Certificate payable to "legal 
 heirs"— Exclusion of second wife. — A widower, having two idiild- 
 ren, insured in a henevoleiit society and to(dv (Uit his certiticate 
 payalde to " his legal heirs'' and suhsequently married a second 
 time, and died without having altered the certiticate, leaving his 
 wife surviving with the two children of the first marriage : — 
 
 Held, that the two chihlren took the whole fund payable 
 under the certiticate to the exclusion of the wife.' 
 
 218. Policy for the benefit of children Testamentary 
 directions. — A testatrix having insured her life and made the 
 policies payable to her two daughters, hy her will re(piested her 
 executors, the defentlants, to place the amount thereof in some 
 thoroughly safe investment until her daughters' majority or 
 marriage, when the amounts ami their accumulated interest 
 should he divided e(|ually between her daughters, and ap[iointe<l 
 her husband, the plaintitt, their guardian. 
 
 In an action brought by the guardian to have the proceeds of 
 the policies handed over to him by the executors : — 
 
 I Doddsi et al V . Ancient Order of I'liited Workmen «/ a/ "J.^ O. R. .")70. Under 
 the Out. Ins. Act, Wl" security must be given l>y guardian ; see (K) Vic. c. 'M, sec. 
 
 1.5.'), 88. 3. 
 
 - AV Slosson, 16 Ontario Practice Reports, !.")() 
 
 ' Mearns v. The Ancient Order of United Workmen vf «l ±1 O. R. 'M. 
 
 ■ I 
 
 I 1' 
 
 I I' 
 
vm^ 
 
 272 
 
 INSURANCE LAW OF CANADA. 
 
 is! 
 
 Hi'ltl, tliiit tho iiiHuranee moiioyt* Uriii^' made payable to tin* 
 (laughters they were by 53 Vict. ch. 30, t^oc 4 (O.), severed from her 
 estate at her death ami her testamentary directions could not att'eot 
 the fund beyond what was permitted by that statute and R. S. O. 
 eh. 136 :— 
 
 Ilel.l, also, that during the minority of the daughters the 
 trustees appointed by the will as provided for by section 11, 
 R. S. O. ch. 136, might l)y section 13 invest in manner authorized 
 by the will ; but while the insured could give directions as to the 
 investment she was not to control the discretion of the lawful 
 custodian of the fund and child, in case the income was needed for 
 maintenance (»r education, or the corpits for advancement : — 
 
 Held, also, that the guardian was the custodian of the 
 daughters with the incident of determining to a large extent what 
 should be expende<l in their bringing up, and that the executors 
 had charge of tiie preservation and utilization of the fund : — 
 
 Held, also, that seetion l2()f R. S. O. eh. 136 does not justify 
 an insurance company in paying the amount of a policy to a 
 testamentary guardian, the guardian there named being one who 
 has jfiven security and that the court should not transtcr the 
 moneys from the executors to the father as testamentary guardian, 
 as his right to handle any part of the fund was subject to the trusts 
 speciticd in tlu' will, the execution of which was vested in the 
 executors.' 
 
 219. AssiRnment by wife Separate estate. — 'fhe interest 
 of a wife in a iiolicv etfected bv her husbund on his own life and 
 which has been declared b^' him to Ite for her l>eiietit under section 
 
 5 otc. 136 R. S. O. (now Out. Ins. Act lS!t7. 60 Vic. c 36, s. 159, 
 160.) to seciire to wives and children the beiietit of life insurance, 
 is her separate estate ami may, in her husban<ls life time l>e assigned 
 by her. The assignee under such an assignment, will be entitled 
 to claim rbereuiider subject to the exercise by the husband of the 
 l)owers conferred oi; liim b}' section 6 of the Act cited above and 
 amendments. - 
 
 220- No power to divert policy money by will. — Under sec. 
 
 6 (1) of the Act to secure to wives and diildren the benefit of life 
 insurance R. S. 0. ch. 136, as ameiided liy 51 Vict. ch. 22, sec. 3 
 
 ' Campbi'll et <il v. Unnn et al 22 O. R., 1(8. 
 
 ■i (iralmul v. C'liimiiii Life Aso. Co. Proctor v. Oiftliiuii, 24 O. H. 607. 
 
m 
 
 INSURANCE FOR BENEFIT OF WIFE AND CHILDREN, ETC. 
 
 273 
 
 i i 
 
 iiiul 53 Vict. ch. 39, sec. 6, (now Ont. Iiih. Act 1897, (10 Vic. c. :jr., 
 s. 159-lGO) tlie insured }ias no j)OW*'r to declare by his will tlnit 
 others than those for whose bent'tit ho has effected the jMilicy 
 or declared it to be, sliall be entitled to the insurance money, nor 
 to apportion it among others than those for whose benetit lie has 
 effected the [lolicy or declared it to he.' 
 
 220a>. Insnranoe for the benefit of wives and children.— 
 Revocation. — In 1860, Rees insured his life under tlie provi. ior.;^ 
 of 29 Vic. chap. 17 (Q.), and insurance was payable to liis wife should 
 slie survive him, or, failing her, for the benetit of Ins cliildren. Tn 
 1878 the Act 41-42 Victoria, chapter 13, was passed, which 
 enables a person who has effected an insurance for the benefit of 
 his wife, or of his wife and children, etc., to revoke the benefit to 
 the person or persons luiined in the policy and to make a re- 
 appointment, but section 1 excepts righis accrued before the 
 coming into torce of the Act, all which rights "shall remain in 
 fitrceand continue to ajiply." By virtue of this Act, Rees, in 1880, 
 executed a document which did not mention his wite in the first 
 paragraph, but merely stated that he desired to revoke the benefit 
 conteired by the insurance upon his children generally. In the 
 second paragraph, however, he declared liis option that the 
 insurance should l»e payable to one s(Mi named therein (the appel- 
 lant) ai((l not to hia iiit'e. Rees having died in 1892, the wife and 
 the son named in the revijcation, each asserted a right to the 
 insurance. 
 
 Held (reversing the judgment of Davidson, J., R. J. Q. 5 S. C. 
 200) : — 1. The document in (piestion, although taulty in the 
 wording of the first paragraph thereof, nevertheless in the second 
 liaragraph sufficiently I'Xpressed a revocation of the benefit to the 
 wife. 
 
 2. Persons nami'<l as lieneficiaries in policies issued while the 
 Act 2i> Victoria (2), chapter 17, was in fi)rce have no accrued or 
 vested right within the meaning of 41-42 Victoria, chapter IC. and 
 the revocation ami reappropriati^)ii nnide in 1880 were valid. 
 
 3. In any event, under Ar.. 1029, C.C., the husband had 
 jiowcr to revoke the stipulation fi)r the benefit ofthe wife, so long 
 as she had not signified hei' assent thereto. It nniy l)e questioned 
 
 ' Re (Trant 20 O.R. Iii0;iii(i •Is.'). As to law on this point now see infra S '.'10. 
 
 18 
 
iw 
 
 i 
 
 274 
 
 INSURANCE I.AW OF CANADA. 
 
 however, wliother tlie court did more than hohl tliat in this par- 
 ticnhii' case there was i>o vested riglit.' 
 
 220b. Certificate in favor of wife and children By-law 
 contrary to the spirit of the Act. — An ap[>h('atiou ]»y the Pro- 
 viii'iiil l*rovideiit Iiistitutiou to pay into Court the sum of |2,000 
 ni(ir.i,ys arising from an insurance certiiicate on the life of one 
 Clark, deceased, less $90.26, the amount of a note given by the 
 insiiri'd in order to secure and stay the i>nforcement of a judgment 
 ag:^^l^T him on a debt due to the institution by the insured, not, 
 however, for assessments on the policy. The moneys arising from 
 the I'crtiticate were designated in favour of the wife and diildren 
 of the assiireil. A by-law of the institution, provided that " any 
 debt, dues or demands contracted by a mend)er, beneticiary or 
 beneticiaries with tln^ institution shall be a charge upon or warrant 
 a su>pension of his i'crtiticate."' 
 
 Held, that the Provincial Provident Institution has no power 
 to make a hy-law which will do away with the ertect of sec. 39 of 
 55 Vic, I'hap. 39 ; that without the section it is contrary to the 
 spirit of the " Act to secure to wives and children the benefit of life 
 assuniiice" (R.S.O., ehap. 130) to authorize anything on the part of 
 the assured which will subvert or interfere with the amount pay- 
 alile under the policy for the benefit of the wife and children. 
 
 Held, also, the institution must pay the whole amount secured 
 by the itolicy into court, with costs of official guardian to him." 
 
 220o. Policy for the benefit of wife and children Subject 
 to testamentary directions. — A testator insured his life for tlie 
 benefit ot his wife and children. The policy provided that the 
 money should be payable as might be directed by will. The 
 testator by will appointed executors, and gave his wife the income 
 ot' lii> estate for life and after her deatli the corpus to his son. The 
 executors renounced probate, and after revocation of a prior grant 
 to the son wh.> was then a nunor, administration was granted to 
 the defendant P. The policy provided that the money might be 
 payable to the executors or administrators. The Act 47 Vict. c. 
 20 (Out) proxides tbat such policy moneys to which infauts arc 
 entitled, shall be payable to a " trustee, executor or guardian." P. 
 claimed the money as administrator whereupon the insuranoo 
 
 i{e.-H& iiukIics, ir.i.y. :t, y.n. u;t. 
 
 ' Clurkt' & I'i'oviiiciiil I'rovideiit liiHtitiilion, I5('an, 1,, T, SM. 
 
INSURANCE I'OR KH.VEFIT 01' wri'K ANU CHILDREN, ETi; 
 
 !7r> 
 
 1)0 
 
 coiii[iaiiy iukUt section 15 of tlic Act, ainl G. O. 197 and Rule 
 "»41a O. J. Act, applied to the Mastor-iii-Ofdinai-y in Ciiambfrs tor 
 !ra\H' to pay lho money into i-(.)nrt. The Master- held (1) that 
 vohintary ap[)lit'ati(ins to pay nmney nia\' he maih- in Cliaiuliers ; 
 (2) That under rule 541a (). J. Act, he hadjurisdivtiun ])y virtue of 
 the administration proceedings het'ore him, to nud-ce the order ; (3) 
 Tiiat l)y tlie renuneiatioii of the executors there was no ''trustee, 
 executor or guardian competent to receive the share of the infant :" 
 (4) That the Act excluih^l the administratiu' frum any elaim to 
 the fund, and his receiitt would not l)e within the protettiun of the 
 statute ; (5) That the administrator was not a trustee hy the will, 
 ex(!ept as holding suri)lus : ((3) That the money was no part ot'the 
 estate suhject to the control of creditors and wlicn |riiid in, should 
 he "ear marked" and not mixed with the other funds ot' the 
 estate. On appeal i)y the ailnunistrator P., Proudfoot, J. made an 
 order directing that the money in court be paid out to the insurance 
 com[iany.' " 
 
 220d. Policy in favor of wife and children— Joint tenancy. 
 
 — Tn 1877, A. insured his own life and the policy (h'clared that the 
 funds of tlie company should he liable to the payment of the sum 
 insured to the wife and children of the assured, pursuant to the 
 provisions of the Married "Woman's Property Act, 1870. A. died in 
 1891 leaving a widmv and children : 
 
 Held, that the widow and children took as joint tenants. - 
 
 220e. Power of nomination— F "icy for benefit of widow 
 and clxildren — A policy of insurance gave a [power of nomimition 
 to the assured, ami provided that in default the moneys sliould go 
 i() his widow and childn;!). The will of the insured who never 
 unide any nomination, disposition or charge attecting the policy, 
 contained a gift of residue but did not refer to the policy or to 
 Slims due or any assurances : — 
 
 Held, that the i)olicy was valid ami that the moneys wore 
 distributable under the provisions of the iKiticy and not as 
 residuary estate.' 
 
 221. Transfer by wife null in Quebec. — The amount of an 
 insurance etlected on the lite of her husbaml, payable to the wife 
 
 MurclmntM' Hunk v. .Monlcith cjc parte Standttrd Life Ass. (\). 10 I'. R. ^m. 
 ■! [ii It- Davles Policy Trusts, Chitty, J. (1HII2) I Ch. W, 
 i' In re Diivles, DivvieH v. Davles, Worth, .1., (IHIKJ) W Ch. (lit. 
 
;/ 
 
 276 
 
 INSURANCE LAW OF CANADA, 
 
 m 
 
 |>i! 
 
 at his death, being iiTiaeeignabk; under tlie provisions of R.S.Q,, 
 5604, a traiirtt'er of svuli iusuraiioe by tlie wife is null, and she is 
 entitled to claim the amount thereof notwithstanding the trajisfer.' 
 
 222. Exemption of policy for benefit of wife — A policy of 
 life insurance etteeted on the life of a man lor the beneiit of his 
 wife, cannot be claimed by the creditors of the luisband in case of 
 insolvency.'' Xor by the croditors of the wife.' 
 
 223. Interest of wife in husband's policy ceases in case of 
 divorce. — Where an insurance is eftected ui»on the life of the 
 husband, the amount whereof is payable to his wife on a date 
 named in the policy or »)n the previous death of the husband, and 
 the parties are subsequently divorced, tlie wife eeases to have any 
 claim to the amount of the policy, which reverts to the husband/ 
 
 224. Bequest of policy to wife. — A be(|uest of a policy oi 
 life insuranee to the testator's wife is a vailid deelaratiou of trust 
 within the meaning of K.S.O. ch. 136, see. 6 (now Ont. Ins. Aet 
 1S!I7, 60 Vic. c. ;)6, s. 15!). Judgment of the County Court of 
 Prince Edward on this point atfirmed, Osier. J. A., dist-enting. 
 
 The practice in force before the Judicature Act, umler which 
 a plaintitl taking issue on and fniling on an executor's plea of 
 lilciic iidnilitisfni.rll could not have judgment of assets (iiiaiido, no 
 longer exists, and it is now proper to give a phiintitt judgment of 
 assets (ituiiidd if bis di'l)t lie establisbed aiid such a judgment be 
 desired. 
 
 Jiulgmeiit of the County Court ol I'riiicc Kdward on this 
 [loint reversed.' 
 
 225. Appropriation for wife. — In Ihll 
 
 v. 
 
 Oltdini Tr>;sl ,(■ 
 
 JJ('.j)()sil Com fill II lu •lusticc Rose (U'cidcd tliiit tlie lociil Miistcr at 
 Ottawa was riglil in iindiiig upon the evidence tluit Mnrgari't II. 
 McUac survivi'd iicr linslniiid. N[r. and Mrs. Mcliac iind their 
 
 son, wi 
 
 th otl 
 
 UTS, wci'c >ailiiiu' 
 
 in iiiikc l)( 
 
 •nc ill a tionl, \.iru'li 
 
 upset and all three .McKiics were drowned. Ih' also allirmed the 
 Master's tindiuL!:, that, under Mr. McRiic's will and coilicil, the 
 
 I ("iiHHoii V. I'^iuulifi-, li.l.C^. :tS.('. L'tl."i. liiit SIT Oiil pis. Act Ihll", s. llil, NS. V!l'. 
 '-' nrcNHunl & Miiisdiiiii \ Villioii, 17 I.. ('. .1. •JTd, fs. ('. lS7:t. L'!t Vic. v. 17, m. ."i. 
 :i III. IH L. ('. .1. 'Jlii, Q. n. 1H7I. ■• Hurt V. TikIcii, H ,! y. 2S.I'. ."M. 
 •'' M(:Kililion V. I'-t'i'Kiin, :il A II. H7, ri- Lynn, l.ynii \ . 'I'uroiito (ionciiil 'I'iumIC'o. 
 ^O. |{. 175 and lltam v. I!«urn 'l\ O. li. ISt) ii|i]ii'ovi-<l . 
 
 :ni( 
 (hi( 
 
 her 
 
 Itiirli, 
 
INSURANCE Foil HKNEFIT OK WIFE AND CHILDREN. ETC. 
 
 277 
 
 procooils ot pfilicy of insuranctMiiust he distriUiiti'd tor tlic lu'iiotlt 
 of tlic rroditors. and not go to his infant child and holil tliat thr. 
 lanu'iiagv ot 59 Vic (O.), oiiafi. 45, sec. :}. and proviso to sub-sec J, 
 is not I'Icar. 'out the fair meaning is that a declaration nniv he 
 nnuh' under the statute by will, ami that declaration hy will shall 
 take effect in priority to any declaration made hofore the date of 
 the will. huT there is nothing to say that a will shall speak save 
 from the death ot a testator, or that a (h'claratiou hy will is not 
 revocable as decided in '21 A. R. cS7. In this case tiie codicil 
 forms pari of the will, both s|peak from the same dati'. and there 
 could he no effectual declaration by tln' will except it be iiy last 
 will, and so the proviso which declares that '' the assured shall 
 not. by virtue of section 2. l»e autliori/.ed to divert moneys or 
 henelits from all ofsaiil class to a person not of saiil class or to 
 assured himself or to his estate," <loes not ai)i)ly to a declaration by 
 will.' 
 
 226. Policy forming: an asset of the community, widow 
 entitled to one-half. — L. insured his life for §0,000 in an in- 
 
 siii'auce coni[iany. the policy l)eing made payable " to his execut(U"s, 
 administrators or assigns." L. died intestate without issue, h'aving 
 his widow to whom he had been m-arried before the date of the 
 policy and with wIkuu lie was in comnniuity, and also leaving 
 several brotluM's and sisters, who claimeil the whole of said policy. 
 The widow claiineil oiwdialfof the said policy as an asset of the 
 ciunmunity. 
 
 Held, that tlu^ said policy lonned an assi't of tin* eomnumity 
 and that as su(di, his widow wa'^ entitled to onedudf the amount 
 due uiuler it.- 
 
 227. Death of insured through crime of wife — The i \- 
 
 ecutorsofa pi'rson who ha<l etU'cted an insurance on liis life for 
 the beiu'tit of his wife can nniintain an action on the policy not- 
 withstauiling that his di>atli was caused by a felonious act ot' liis 
 wife. The trust created l)y the policy uu<ler s. 11 of the .\lari'ie<l 
 WomeiTs I'rojierty Act 1882, having lu-en defeated by reason ot 
 her c.rimo, the insurance nuuu^y becouieri [uirt of the assiire(l. and as 
 
 I ni-ci(ieil lit TonmUi M l'\>l)r,, 1HI)7, and not- yet. roportfil. 
 
 '•"Q. H. I.alu'lli' V. Hoiu-y, Mil It. (". .1. iJiVi, luid sut; ii simlhii' liol(lin« in Ii.ilii^lli> v. 
 Hiirlx'im, y.H. 20 It.l.. (a)7, iind see i.nfm sj 2Ll)ii. 
 
 
 I 
 
t% •■ '^ 
 
 278 
 
 INSURANCE LAW OF CANADA. 
 
 if 
 
 LetwiH'ii his k'giil roprescntiitivos and the insurers no ipcstion ol 
 imblic policy arises to aftord a dot'onoe to tlio action." 
 
 228. Benefit society Change of direction as to payment. 
 
 — A person whose life was insured in a ])eiietit society incorpor- 
 ated under R.S.O. (1877) c. 1G7, as amended by 41 Vic. c. 8, see. 
 18 {()), now Out. Ins. Act 1897, tlO Vic. c 30, on the 28th January, 
 1888, his tir^-t wife being then dead, caused to be issued to him a 
 certiticate making the insurance money payable to his children. 
 After this he married again, and on the Ist June, 1889, at his 
 recpiest, a change was made, and a new certiticate issued, nuiking 
 the money payable to his second wife. He died on the 10 Nov- 
 ember, 1889. 
 
 Held, reversing the judgment of Street, J., that the effect of 51 
 Vic. 0. 22 (()), was to make the certificate of 28th Jamiary, 1888, 
 eubject to the provisions of R.S.O. e. 136, and that the rules of 
 the society, in so far as they were inconsistent with such pro- 
 visions, were modified and controlled by them ; and such certifi- 
 cate became a trust for the children, under sec. 5 of R.S.O. c. 13(1, 
 and ceased, so long as the object of the trust remained, to be 
 under the control of the decease<l, except oidy in accordance with 
 sees. 5 and 6. whicli did not authorize him to revoke the certifi- 
 cate and replace it by the subsecpient one.^ 
 
 228a. Benevclent society Change of beneficiaries. — An 
 
 endowment certificate issued in 1889 by a benevolent society to a 
 member and payable on his death half to his father and to his 
 mother, cotitained a provision that should there be any change in 
 the name of tlic payee the secretary should be notified and an 
 endorsement thereof made on the certificate. Tlie member subsc- 
 (piently married when he informed bis wife that lu' would have 
 the certificate changed, as he intended it lor her, giving her tlie 
 certifi''ate. which she de]»osited in a trunk used by both in common, 
 he contiiiuiug to pay the jircniiuni : — 
 
 llclil. that tills was not siifKcient to displarc llic tci'nis ol'tbe 
 contract a~ manircstc(l on the liici' of tiic ct'rtificatc : and, turtluM', 
 BO far as the mother was concerned, she was am])ly protected, ^^'\ 
 Vict. c. 39, sc. .'•. (now Out. Ins. Act 1M97. (10 Vic c. ;5l), s. 1;)9) 
 
 I (Mi'iLvcr V. >liil,. IvCMi'ivc Kuiul I/ifc Ass. C. A, (1.SII2), I Q. 15, 117. 
 
 •^ MiiiHi'iuid V. J'lU'Ui'f ft III •J.l (). n. Ml,, 111 A, li. aKl, lull m'c Iti'cs .V Ihighfs, 
 
I ml 
 
 I I 
 
 INSURANCE FOR liENEFIT OF WIFE AND CHILDREN, ETC. 
 
 J79 
 
 which applied to the ciTtiticate iu ([uestioii civatiut!; a trust in Ikm' 
 i'avor. 
 
 That statute is retrospective as to current polieics, issueil 
 before it came into for(;e.' 
 
 228b. Benefit certificate Change of beneficiaries. — In 
 
 October, 1886 an en<hi\vment certiiicate upon the hte of a widower 
 with one cliihl was issued to him l)y a henetit soeiety, tlic sum 
 secured therein- being designated by a clause therein as payable to 
 the cliild. In February 1888, the in!«ured havitig uuirried again 
 endorsed on the certificate a writing revoking the original design- 
 atioji and directing the payment to his wife. In November 1S90 
 liis wife having died lie endorsed on the certificate a direction that 
 payment should be made to liis executors, adniinistrators an<l 
 assigns. He died in Marcli 1893, awiuower, leaving two eliildreu, 
 the one first mentioned, and one born in May 1888. l>y this will, 
 dated in July 1888, he left all his estate to his children in eipial 
 shares : — 
 
 Held, that under the powers conferred by R.S.O. e. 136. even 
 as amended by 51 Vic. c. 22, (now Ont. Ins. Aet 1897, 60 Vie. e. 
 36, s. 159-160) the insured had only a limited authority to vary the 
 terms of the certificate ; and he could not revoke the direction for 
 payment to his daughter and make a direction for i)aymeiit to his 
 wife. l?y virtue of 52 Vic. c. 39, see. 6 he might, when he made 
 the endorsement ofXovendier, 1890, have transferred or limited the 
 benefits of the certificate in any manner or proportion he saw iit 
 l)etween his children ; that he could not destroy the trust <Tt:tted 
 l»y the certificate and declare a new trust which might l>y making 
 the fund ai)jilicable to the [laynuMit of debts deprivi' liis ehildrc:i o| 
 all benefit in it, and so render the A* , nugatory.'- 
 
 228o. Benevolent society Testamentary directions Eight 
 of society to Timit beneficiaries to certain class Substitution 
 of otbnrs by will. — A policy upon the lite ol the phiintiir- di'- 
 ceased hushand wii. i^■sued in ()ntario before his uiarriagi' l>\ a 
 heiicvolciit societv not incorpitra'cd or registered uimIim' aiis .\ct 
 ol'tlu' Province ol ()ntario, payalile to his inother, who |preil>'.",i.M'd 
 him. or his exi'cutois. I>v one of the liv-law > of I he societv ii \va-« 
 
 ' SiiniMis v. Siiiuiiis I'l O.K. (;(!:'. 
 
 • Nc'ilsdii V 'I'nisls ('()i'iiniiUk)n of Oiilarici :il A. K. ."ilT 
 <>. li.iittT. Ill A. It. :i!lO follow,.!, 
 
 Min-iMiiil \. I'.ukiT :.'l 
 
 iii 
 
 ;), } . I 
 
 ! 
 
 '•' i 
 
 li-ib 
 
 III 
 
i'p ' 
 
 280 
 
 INSURANOK LAW OK CANADA. 
 
 provided tliat whoro the iiisiiivd inarriod aftor tlie date of the 
 j»oli'-v, it ip-io facto became payable to the widow, " unless otlier- 
 wiisc ordered after date of such marriage." Under another Ijy-law 
 \\w [lolicy t'ould be maile payabh^ oidy to a wife, an athanced wife, 
 a 111 'od relation or a [)erson dependent on the assured, and was not 
 to be willed or transferred to ail}' other person. By his will the 
 deceased purported to give to his widow the amount of this and 
 another insurance, subject, however, to the payment of his debts. 
 
 Held, that the policy was capable of being controlled by 
 C(,)nditions not set out upon its face, because sec. 4 of 52 Vic. c. 32 
 (0) amending the Ontario Insurance Act. R.S.O., c. 107, applies 
 oidy to tliecompatiies to which the latter Act applies ; and as the 
 insurance and the rights of the parties under it di<l not depend 
 upon anvthiiig contained in the " Act to secure to wivi's and child- 
 ren the benefit of life insurance," R.S.O. c. loiJ, it was not necessary 
 to c();isider whether if was brought within the scope of that Act 
 by it< amendment by ol Vic. c. 22, sec. 2 (O) and, therefore, the 
 binding tei'ms of the contract were to be found upon its fat'C and 
 in tlic rules of the society, which forme<l part of the contract. 
 
 Held, also, that uiulcrtlu' terms ni)(>n which the society agreed 
 to pay this money, the insured iiad no power to bequeath any part 
 of it to his executors or his creditors, and tlu' society had tlu' right 
 to say that tiieir contract was to pay the money only witliin a 
 certain class ; and therefore ilu' money belonged to the widow free 
 from the obligation to pay debts.' 
 
 228d. Interest and rights of insured and of beneficiaries 
 Assignment of policy to secure debt Evidence by affidavit of 
 loss of policy. — Where an insurance was effected upon the life of 
 a jierson lor the bciu'fit of her liither, broflier and sisters, the 
 plaintiffs, — 
 
 Held, tliat the beneficial interest in the p(dicy, as soon as it 
 was issued, vested in the plaintiff's, and the contract of the in- 
 surers being to pay them the money payable nndi'r the i)olicy, 
 insure;! could not, by any act of liers, de[irive them of the 
 j!m ' I >') vested in them or of tiieir right to call upon the 
 in^• . - iv. !br payment ; and an assignment made l)y lier and her 
 .:■ ■' secure a debt had no effect upon such interests or riglit of 
 
 the piaiutift's, excei»t that of the lather ; and the assignee nmler 
 
 
 AForKMii V. Iluiil rt fr/2(i<).H, ."iliH. 
 
 I 1^1 
 
INSIIRAN'CK l''OR liENEFIT OF WIKE AND riin.DREN', ETC. 
 
 281 
 
 tlu> ciri'umstiiiu'os aii<l evuleiiei.' hocamo the inartijjagor of such 
 iutorest and riglit, and tho rocovorv of a judgment by tlie assignee 
 against tlie fathiT for tlu' amount of tlie (U-ht did not itivjudicially 
 ati'eot the soeurity. 
 
 Further evifh'iiee c f the k)ss of the iPdliey l>y athihivit was 
 receivctl by the Divisional ('ourt lunler Con. ifule ')8").' 
 
 229. Assurances effected in Ontario with Quebec com* 
 panics. — Tlu' liusbaml of the ih'femhn.t. wliile a baelielor (h)nii- 
 ciled in Ontario lia<l in the years 1S71 ;tn<l 1'»'7o effected three 
 ])olicies of insurance on his lito with companies whose head otHees 
 in Canathi were at M., in the IVovinee of Quebec wliere the 
 insurance moneys were payalile. After his marriagi'. whih' still 
 ilomiciied in this province, he emlorsed de-'larations on the policies 
 in tavor of deie!idant and handed them to her. After his death 
 the insurance moneys were claimed by the defendant and by the 
 plnintirts as administrators of his estate, against which there were 
 creditors : — 
 
 Held, that the endorsements on the jiolicics were governed by 
 the law »d' Ontario. Lee v. Abdy - followed. 
 
 llelil, however, that, as defendant's husliand was not a married 
 man at tlu- time he eth'cte(l the policies, he could not (not being 
 within the exce[)tiim proviiled in 47 N ic. c. 20.-. 2) withdraw from 
 !lie claims of his credit(»rs the ln-netits of the policies etiected 
 before marriage by endorsenu'uts or declarations al'ter marriage 
 lor the benetit oi' ids wife, and tlie plaintitls were entitled to the 
 insurance moneys.' 
 
 230. Testamentary directions within the meaning of the 
 Ontario Act. — Two policies (ui his life were <h vised l>y a testator 
 lo his executors to lie inve-ted \>y them as a provision t'or his wile 
 and children : — 
 
 Held, that the testator had declai'cil thi' insurance to be for 
 the benetit of his wife and children within the lui'aning of Revised 
 Statutes of Ontario, c. 18t;, (now Out. Ins. Act isit7, 60 \'ic. c. :{(i, 
 s. l-")',)) and therefore theproceeils were exempt from the claims of 
 creditors. ' 
 
 I DoliMi linl V. Mctropolit.iii I-ifc Ins. Co. <■/ ((/ Jfl O. K. iu, 
 ■" 17 g. H. 1). :t(«) 
 
 ■' 'roroiito (Jciii'Vul 'I'l'iHls l"(). V, .Si'well 17(). K, ll:i. 
 
 ' I, villi V. Toronto (ifiuTiil Trusts Co. :i(), ( ». A IT.'i followed. Mfiiiii v. Bcinii, 
 :!l (). I!. 1H1». 
 
 : f! ! ' 
 
n^ 
 
 282 
 
 INHl'KANCE LAW OK CANADA. 
 
 231. Payment of insurance moneys into court. — On uii up- 
 
 jiliciition tor leave to \>i\.y iiisuraiu'o juoiiev into (•ourt, claimed by 
 (litt'erent jiarties : — 
 
 Ili'ld, tliat subsection .") ofsection 53 of tlio Ontario .hulicatnre 
 Act extends tlie benetits of the Act for tlu' relief of trustees to 
 such eases and that tiie applicants were entitled to pay the money 
 in.' 
 
 Subsection o of section 53 of tlie Judicature Act referred to 
 in re Bajas is in the ibllowing words : — 
 
 " 5. In case of an assignment of a debt or other chose in action 
 if the debtor, trustee or otlier person liable in respect of the debt 
 or chose in (H-tion, shall have liad notice that such assignment is 
 disputed by the assignor, or an}' one claiming under liim, or of any 
 other opposing or contlicting claims to sucli a debtor chose in acti'xn 
 he shall beeinitled, if he think lit, to call upon the several persons 
 making claims thereto to interplead concerning the same, or lie 
 may, if lie think tit, pay the same into the Higli Court under and 
 in conformity with the provisions of law for the relief of trustees.'' 
 
 232. Non«payinent of premium note— Benefits inter vivos. 
 
 — Ill a recent case the company jtlaintiff (ilaimed from the de- 
 fendant tlie amount of a note dated at Montreal, 16th May, 1890. 
 by which the latter jn'oniised to pay plaintiff, four months from 
 date, the sum of 1^133.30. The defendant pleaded that the note 
 was made by his wife to pay a premium of insurance in favor oi 
 defendant, and that he signed it only to authorise his wife. 
 
 The court held, that it appeared by the application made to 
 defendant, that the policy of insurance was not made in favor ot' 
 defendant, and that it was not payable at the death of his wife, 
 but fifteen years from A-aXv. The contract, therefore, did not fall 
 within the provisions ot article 1205 of the Civil Code, wlTu'li ])ro- 
 liibits husband and wite se[tarated as to property from conferring 
 benetifs inler rirns upon each other. The [iK'a was therefore dis- 
 missed and tlic action wa> uiuintaineil for the sum of S133.30.- 
 
 233. Societies incorporated under the Benevolent Societies 
 
 — Tiic •• Act to >cciii'c to wives and children the benetit ot' 
 life insurance,"" 47 \'ic. c 2') (Out ) iiiqilii's to insurance in socie- 
 ties incorporated under the iR'nevolent Soi'ieties Act, R. S. O. 
 
 1 C'lwiiiW'ry Division. il Co\irl : rr /.V/./ns :il (). U. :«»?. 
 
 " Nortli Aiiicviciiii l^ilc Asshimuci.' l"oni|iiinj' v. I'iiiolcau ; Liiiaiinor, .J., Moiil 
 reul, ^<!lli Di'i.'., IS'.l's iiol yot ri'imrlcd. 
 
J:-:i' 
 
 INSURANCE FOR liENEFIT OF WIFE A.NIi CUILDKEX, ETl", 
 
 283 
 
 (1877) c. Ul. Ro O'Horoii. 11 P. R. 422 ovi-mikMl. .Jiuloinent 
 ui Troiulfoot, J., iwoivod, Burton, .1. A., dissenting.' 
 
 231. Recent American decisions Beneficial insurance 
 certificate in favor of "family" Grandchildren not entitled 
 to benefit. — Tin' (•ertitioati' in this I'lisc (lositjnatcd tho " tiunilv "" 
 tit' the momlior as the bcnetioiary. WIumi issued, the taniilv con- 
 sisted of the member, his wife and a daughter. Tlie dangliter 
 died, and when the member died his \\\te survived him. and tliere 
 were several grandehihhvn. Tliis made it necessary for tlic court 
 to construe tlie certitioate and (k'termine who was entitled to tlie 
 benetit. This they di<l as tbllows : — " Tlie constitution and by- 
 laws of the association and the application and admission of the 
 member constituted the contract which now controls the rights oi 
 tlie contending parties. The deceased man agreed to pay certain 
 assessments, and the association agreed to pay a sum of money to 
 his family, and it was bound to pay to no other person. The 
 family so designated, aside from the member himself, was made 
 up of his wife and daughter, and lie could derive no benetit from 
 the fund because it was not payable and could not be realized until 
 his decease. He had no interest in the fund and possessed only a 
 ]»ower to appoint the ultimate beneficiary; and the rights of the 
 pai'ty or parties so appointed by liim became vested as soon as 
 they were specified, subject to be divt'stcd by a revocition of such 
 appointment by the member in his lifetime by the designation ot' 
 some other recipient upon the books of the association. No such 
 change was made, and so the wife and daughter were the bcncti- 
 ciaries, because they constituted the family of the member when 
 the contract was consummatcil. Their inti-rest in the fund was 
 nidimitod, because the desigiuilion includcil them as a class or ;in 
 entirety ; and when the daughter died the member was still ;ilivc. 
 and till' mother was all that was left of tiie family for wliosc lieni'- 
 tit the contract and designatiiin was niadt . and she thus bcrunie 
 idone entitled to the bciu'tit of the apiiuintmcnt and llu' |«roci'eds 
 of the contract. AVi' deeiii it plain that nK'nibcrship was sor.ght 
 and accepted by the deceased lor the Kenetit of the iieixnis who 
 constituted his household or family at the tinii' of his apn'iciitioii, 
 and lor thcii' relief in ease of his death : and as the widon- is the 
 
 onlv siii'viviuii' nieinbcr of that faniih'. 
 
 alone tills tl 
 
 ic nieiPiiiii 
 
 [[i ■■ 
 
 \M 
 
 ' ii 
 
 ' Swift V. I'lovl. I'ldx iiiiiit liistn.. 17 A. li. (1<;. Sir now (HI \'ii-. i\ .(ll lO.) 
 
.i -v 
 
 284 
 
 INSURANCE LAW OK CANADA. 
 
 of till' tiM'iu ' i'aiaily' as onipldv oil l>_v tlio meiiil)or in liis appoiiit- 
 mout atiil tli'siLfiiatioii. ami is cniirKHl to tho wlioli' fund in contro- 
 versy. Wiiilo it is true that th'.' miso is novel and must he docidiMl 
 upon piini'i[ilc rather than authority, yet we think that the ron- 
 clusi.ins reached arc in harmony with the doetrine of the . 
 eases >u I'ar as. tlicy have any api'lieation." ' 
 
 233. Policy for the benefit of a sister Change of benefi- 
 ciary after marriage. — One at tin' time unmarried had issu>'d to 
 liim an insurance poliey upon his life, naming' a sister a-< the hi'ne- 
 tieiary. and makini;; her the de|iository of the pidiey. One of the 
 conditions of the polii-y was: ••'Phis })oliey is issued and accepted 
 uiion the express condition that the assured may, with the consent 
 of the ciiinpany, at any time assitjn it, or hefore assiu-nment liiange 
 the Itetietieiarics tlierein, or make any ollun- change." Afterwards 
 marryinu'. in consideration of the marriage he agreed to make his 
 wife rlio iienelieiary. "When ])aying the premium he reipiested the 
 agent of the company to make the change : hut the sister declining 
 to surrender the policy, the company, though informed of the 
 change desired, failed to formally iinike it. 
 
 The Supreme Court of Georgia held, as a question of law, 
 that rhe ettect of the condition hefore recited was to reserve to tlie 
 life insured the right to change the heneiiciary, and that, there 
 heiuii' no condition in this policy re([uiring the consent of the hene- 
 ficiary named therein to change in any of its terms or of the party 
 entitled to claim under it, and whether such change was to he 
 etiect-'d i>y [larol or in writing heing a matter entirely hetween the 
 life insured mnl the company, if the latter chose to dispense with 
 any t)f the modes of ettecting this purpose this concerned no third 
 party : furthermore, tlie company could not capriciously refuse to 
 nnike the change. Also that, the marriage having heen consum- 
 mated on the inducement of the promised change of the henefi- 
 i'iary under tlie polii^y, e(iuity would consider that done which 
 (Might to he done, ami would give relief accordingly.- 
 
 23Sa. Policy for the benefit of the mother Policy surren- 
 dered after marriage and new policy effected on behalf of wife. 
 
 — In a Massachusetts case the insured had taken out when un- 
 married and living with his mother a life pcdicy in the form of an 
 
 ' Brooklyn Masonic Ucliof Ass. v. Hiunoii (ISHll), :>:! Hun IHI. 
 - NaHy v. \ally (18«5), 71 C.ii. tHiil. 
 
d: 
 
 INSURANCE FOR liENEFIT <tF WIFE AND CHILDREN, ETC. 
 
 285 
 
 endowment policy, but miide paysible to Iuh iiiotlier as tlie Ixiicti- 
 ciary. She and his sister had furnished the money tor the first 
 premium. He kept the pohcy in liis possession, and it was well 
 understood l>etween tliem all that it was for the hent'tit of the 
 mother. After two years he married and surrendered the first 
 policy and took a second making his wife the beneficiary ; this 
 second policy contained the statement that it was a rontinuation 
 of the first policy. Upon his death there arose a (picstion nf who 
 was the rightful beneficiary of this insurance. 
 
 The Supreme Court held the mother entitled, saying : — " In 
 this case the assured reserved to himself no power of revocation or 
 of changing the l>eneficiary. It is true that he entered into no 
 obligation to continue to pay the premiums, but the omission to do 
 this <lid not have the effect to give him an implied power of rtvo- 
 cation. His mother might herself contiime the payment ot' the 
 premiums. Moreover, by the terms of the policy, after payjiunt 
 of two full annual premiums it would not lapse, and i-ertaiti v:ihi- 
 al»le rights would still exist under it. Under these circumstances 
 the assured could not legally surrender the policy witiH)ut his 
 mother's consent, and her rights are not affected by such surren- 
 dt'r. This seems to us to be the true rule, and it is supportt-d hy 
 the weight of authority.'" 
 
 236. Policy for the benefit of wife - Surrender New policy 
 on behalf of brother as security for debt. — In another c:,sc jt 
 liusband had insured his life for the benefit of his wife. The 
 [lolicy being under his control, lu' had afterwards surrcndcrtd it 
 to the company and had another issued, naming a brother, in .nii- 
 sidcration of indebtedness to him, as the beneficiary. Upon iiis 
 death the widow brought action on the original contract re]. re- 
 sented in the policy which had licen surreiidereil, and the ]»rnthei'"s 
 I'epresentatives u[ion the policy issued upon its surrender. 
 
 As to the rights of the widow, the beneliciary in tlic r-uncn- 
 dcred jiolicy, the Sujtreme Court ot' Louisiana saiil : — ■• As to her, 
 the company's contract was i-oniplete in its incipienev, and never 
 changed thereafter with her consent. In law this [loliey inured 
 to her separate paraphernal benelit, although not separate in 
 property from her husband, the insured, and its cliaracf<T of 
 [laraphernal property could not be changed to that ot separate 
 
 li 
 
 ii ! 
 
 II 
 
 ■ 111 
 
 
 I'lngriy v. Nat. I.ile Ins Co. (IMS'), 14'l Mass. ;t7l. 
 
286 
 
 INSliKANCE LAW OF CANADA. 
 
 property of tlic liusl)an(l. or tluit of tho commmiity, without Iht 
 coimoiit lawfully oi)tiiiuf<l. As such it couM not hv plac('(l as 
 SL'tMirity for Iut luishaud'.s doitts."' ' 
 
 As liotwiH'U tilt' assuiH'd and tlio insuri'r thi' policy is a cou- 
 tract lot- the honetit of the l)enoticiarv, who takos hv contract 
 rather tliaii hy itihoritauco. Tho lumiiut; of tlic hcncticiary, thounh 
 not a bcijuost, {lartakc's of its uaturt'.-' 
 
 Thf docianitions of tho insured, made suhsciiueiitly to taking 
 out a iiolicy of lifo insurance, to the eltect tliat he intends by the 
 words '• My wife Mary and ciiildreii," heuetii-iaries named in tho 
 policy, that it was for the honetit of this [)articuhir wife and iier 
 «liildren, it was liehl in this case, wore properly oxchuleil as evi- 
 (h^ice upon tho general principle that one party to a contract can- 
 not, hy parol declarations //( ixiis, change the contract; and, aside 
 from that, it \-..is settled in Missouri that a person wliose life is 
 thus insured cannot by such parol declarations aft\'ct the rights of 
 a bencticiary in the policy.' 
 
 237. Policies for bene^t of wife and children Predecease 
 of wife -Surrender of policies— Relief against forfeiture for 
 breach caused by ignorance. — Life policies were applied for by a 
 
 wife through her husband, who acted for her as her attorney. Tho 
 insurance was upon his life. The consideration for the policies 
 was paid by her, as appeared from the recitals in the policies. The 
 insurance was tor the honetit of lierself, and, in case of her death, 
 that of lier children. She died, her husband and children sur- 
 viving her. After lier death the husband uju)!) some terms 
 surrendered tliese policies to tho company. 
 
 After his death the children surviving learned of the policies 
 having existed and of their surrender to the company. They gave 
 notice of tho death of the life insured to tlic compai.y and, before 
 the commencement of any action, offered to pay the premiums 
 unpaid upon the policies, according to their terms, and to furnish 
 tho company with tho proofs of the death of the life insured, hut 
 the company refused to accept tlio premiums, asserting that the 
 policies wore purchased by them and were no longer in force. It 
 may be stated that, in Ids negotiation witli the company for the 
 surrender of the policies, the husband claimed to act as guardian 
 
 I Putniim V. New York Life Ins. Co. (l«)0), 42 La. Ann. 7:W. 
 
 ■! Phillips V. Carpenter (1H!K)), 7l> Iowa COO. 
 
 :' McDerniott v. Oentennitil Mut, Lite Asa. (ia-<7), 24 Mo. App. "It. 
 
INSntAMT: I'liU I'.KNKKIT ul' WIKK AM» <MIII.I)IU",N. KTi'. 
 
 287 
 
 tnr liis cliililivii. I[r was in llict a i^iiarilian ofoiM'. Iml the othors 
 wi'iT of aiTi'. Tlu! fliililrt'ii tliciTiiiiini l)ro;ii;lit an ai-tion to sut 
 a-<itlo tlu' siiiTi'ndcr of the.-'' iinlii'lo and to i'oro\cr the amounts 
 soturiMl by tliciu. 
 
 The Supivnio ("mirt of Xcw York in < Jrnrral Tt-rni lield, tlnit 
 till- surreiKler inailc l»_v tlic liusliaml \va> voiil, ln'causo not made 
 upon the writton n'((ue-»t i.f tliu wifi', as [irovidcd in the statuti' in 
 rvhition to such inatti-rs. The court said : '•Tlu- ixdicv of insurance 
 to a niarrit'd woman, iikkK' umh'r the statute whicii allows such 
 iiisurance for lier henetit, and that of her children in case of her 
 death, cannijt he surrendered or transferred so as to diveHt the 
 interests of the wife or lier children in any other manner than tliat 
 ['ointed out hy tiiis statute. " 
 
 They continued : " It is douhtless true that an individual may 
 cause his own life to l)e insured for the henetit ot a hrother, sister, 
 or any other iierson, and that upon the death of sueli person the 
 insured may surrender or dispose of the [xdicy. hut sueli cases 
 are not within the provision ot the statute cited, and are clearly 
 tlistinguishahle. The husband had no interest in the policy which 
 he had a right to surrender or dispose of, and of this the company 
 was well aware at the time '.t accepted from him the surrender ot 
 the policies. If he was authorized to act for her as her agent in 
 procuring the policies and in making the payments of the 
 premiums thereon, such agency termi-uited with her deatli and no 
 longer existed at the time these policies were surrendered." ' 
 
 It was claimed also in this ease by tlie company tluit one of 
 these policies had lapsed before its surrender, by reason of theuon- 
 payn.ent of the premium falling due December 0, 1873. To this 
 the court said : "This would doubtless be the case were it iu)t for 
 the fact that the company siibsequently, and on the 8th day of 
 May, 1874, treated the polic^y as in force by accepting its surrender 
 and paying a sum of mone}' thereibr. The fact that the company 
 then treated the policy as in force leads us to presume that the 
 default in the payment ot the premium hatl been excused or post- 
 poned by some arrangement between the parties. We are, there- 
 fore, unable to see any reason for distinguishing this policy from 
 the others, or of applying a difteretit rule in determitung the 
 liability of the insurer thereon." 
 
 'A 
 
 i 
 
 HlH 
 
 r\\ 
 
 II 
 
 ' Whitoliead v. New York Life Ins Co ( I8.S4) :t! Hun. li"). 
 
 m 
 
 
m% 
 
 jli 
 
 i ■■' 
 
 1^ 
 
 if 
 
 1 
 1 
 
 288 
 
 INSURANCE LAW OF CANADA. 
 
 The t'ourt thou ])r()Coe(ls to disoiirts the (luostioji of the reUcf 
 askotl, and matter!* incident thereto, as follows : "After tlie sur- 
 render, no further aiumal payments of premiums were made. For 
 this reason it is ehiimed that they rehii)sed. Tlie question is thus 
 l)resented as to wliether or not the chihlren of the deceased wife 
 ca!i 1)1- relieved against forfeiture for a breach of this condition of 
 tlie ^)olicies. It appears that neither of the cliildren liad any 
 knowledge of the existence of the policies until after the death of 
 their father. The rule is, that a court of equity will interpose its 
 1 ower to relieve against forfeitures for a breacli caused by unavoid- 
 able accident, fraud, surprise or ignorance. Whilst sickness or 
 insanity is not sufficient to excuse i default, yet war existing 
 between the States in which the company is located and assured 
 resides, so as to prevent the transmission of the premium, is.' Fnuid 
 on the part of the company, surprise or ignorance, in many 'ases 
 is a ground upon which a court ot equity may relieve against 
 forfeiture. The (jriioamen of the action in this case is fraud on the 
 part of the insurer and the husband and ttither. [f fraud in fact 
 existed, and such traud tended to prevent the payment of the 
 premiums we arc of the opinion that tlio I'ourt may properly grant 
 the relict asked for. They further held that the facts as disclosed 
 justitied a fnulingthat the company participated in the fraud. The 
 case was afterwards before the J^ew York Court of Appeals whieli 
 reversed the general term as to the one policy the forfeiture of 
 which that court held has been waived, <tr(/iieiulu they said : "The 
 plaintiffs stand here rcjiudiiiting that surrender by the father, ofibe 
 policy and insisting that it is fraudulent and void, and at the same 
 time seeking the benclit under it as a revival of their forfeited 
 policy. They wouM set aside where it harms them, and maintain 
 it where it helps them. In so doing they utterly pervert the true 
 nature of the transaction. 
 
 That IS an cftort not to revive the policy but to kill it, 
 moi'c ctteci, '.ally than ever, and so understood on both sides. It 
 indicates no waiver by the company of existing rights but an 
 attempt to ac(|uire an a<lded right and a new and further del'enc-o 
 against liability. Tbo forfeiture had relieved them from liability, 
 l)ut the [lolicy itself was outstanding aud might expose them to the 
 appcaranci' of the claim and a i'onse(|Ucnt litigation, and they [laid 
 something to secure its possession as a voucher and its final canrel- 
 latiou. The act was not in the least inconsistent with a position 
 
 ' Wee I'hap. XV" I. iiijnt for " Klltcl of wiir." 
 
' f« 
 
 
 IXSURAXCK FOR liKNElMT (iK Win-: AND CIIII.DKEX, ];T(' 
 
 280 
 
 ln'ld and iiiaiiitaiiu'tl. that tlio [lolii'V was valtioless iiml luirtit'um.'- 
 aliU' as an oblipition, any nioro than that one who lias a good title 
 111 real estate can he said to admit that ho has one heeanse he 
 lionght in for his safety and seenrity a possible hostile elaini wiiieh 
 lie did not doeni valid. There is no [iroof in tiie ease thtit the 
 jiayment made to the father was in fact, or was oallod or dicni.'d, 
 a surrender value of the poliey, so as to involve an admission of its 
 validity lieyond a marginal note in the reeeijit whii-h is purely 
 formal and might have been ex|»lainod if exeluded evidence had 
 been admitted. On the contrary, our attention is called to the 
 very smalhiess of the amount paid in comparison witli the 
 premiums received as indic'ating that the surrender value was not 
 given and that the company made a rapacious and unjust bargain ; 
 and as to what was said and understood at the time, the door was 
 closed by the objeetions of the plaintitls and a ruling in their favor 
 excluding the ollered pi'o;)!"-;. We sec no justitication foi' ihat 
 ruling. 
 
 C'ontimiing they saitl the evidence was not admis-ible on the 
 ground of iigency, l)ut when the [ilaintitt's rely on the act of the 
 eompany as a waivi'i' it is vitally important to know just wb.a' that 
 aet in truth was and liow and why the form of I'cci'ipt canu.' to lie 
 used. In the light of the ruling, wi" are bouuii lo as>um,' tini' tlii' 
 insurer might and woiiM have [iroved that at the tiiu' ot the 
 surrender the insured was I'xpi'essly told that the policy had lapsed 
 and was torfeited. tluit the company stood u[ion its rights but that, 
 if the insured would give up possession ot the jiolicy, they wonM 
 give him a certain moderate sum as an act of kindness tii an old 
 agent of the corporation, and in recognition of an im[iertect moral 
 c'luity incapable of eiilbrcenu'nt, but having about it a sort ot rude 
 justii'c. 'IMn' pressure of that inchoate e((uity, even wb^'re the 
 a-sured or their agent had been in fault tiirongh the non-payni'Mit 
 of [iremiunis, the insured Uiight well and justly recognize ; ami if it 
 did and [)aid a gratuity for that reason, tiie a"t stood expressly 
 upon a hqise of the policy, and cannot be toi-tured into an admis- 
 sion of its vitality. It is obvious also, that in any sense the insured 
 c;m be said to have rt'cjgnizcd the [lolicy as a valid and subsist ing 
 obligation, it was a conditioind ami n it an absolute recoguitlou. it 
 was conditi. ..cil upon the surrender ami nunle soK'ly tor that pii'- 
 pose. It is not in the least doubtful thai, but tor the agreement 
 lit 
 
 ! ! 
 
 
 ii" 
 
 . -'i ' 
 
 t Ii 
 
 1 
 
J; 
 
 I' 
 
 290 
 
 INSURANCE LAW OF CANADA. 
 
 to surroiiilor, no sort of iulmission would have Uooii iiuide of i'\- 
 istiiiir validity of tlu' policy. Xolxxly tells us wliat conversation 
 occurred at the time, hut the transaction itself leads to the iniivit- 
 ahle interference that the waiver, if it can ho deenictl such, was 
 contlitional upon the surrender and cancellation of tlio policy and 
 the plaintifts cannot avail themselves of the waiver which their 
 agent secured and repudiate the terms and conditions upon which 
 
 ak 
 
 one lie securei 
 
 lit. 
 
 Theyagreed with the court helow as to tlie estoppel of the 
 com[)any to defend on tlu' ground ot non-payment of the pri'miums 
 on the other two [lolicies. They said : " The situation as to the 
 other two policies is different in the very imiiortant particular that 
 neither of them were forfeited when the surrender took ['lact', and 
 the t'ailure to [lay aninnU [iremiums nccurred thereafter. As to 
 these omissions two things hap[)ened whicli by possihility may 
 have prevented such j)ayments l)y the assured, and for which the 
 insurer was accountal»le. Xo notices were sent either to the 
 insu'.i'd oi' to the children, and the company by their wrongful 
 possi'Sfion and cancellation of the policies and by their agreement 
 of surrender, did an act the tendi'iii'V and [lurpose of which was to 
 
 lirevent future payment by the [la 
 had 
 
 irties interested. If the coi 
 
 npany 
 
 ri'lused to liuy m the [»olicies o 
 
 )f th 
 
 nisured, excei)t wi 
 
 th th 
 
 consent of tlu' assured (beiieticiaric's '.') one of twi 
 
 \u)'j:!i would 
 th 
 
 certainly have taken place, either, in view of their father's em- 
 barrassment, the chihlren would have consented to the surroiuler, 
 takiiiiT iis their own the surrender value which belontji'cl to them, 
 or they would have kept the policies in life by themselves [»aying 
 the i)remiums. Such action by the company in the line of its dear 
 duty would havi' left the insured without the least motivi' for 
 coiiiealment of the situation ti'om the '•hildren, and in all human 
 pndiability given them a knowledge of their rights, ]')Ut the 
 agreement of surrender practically bouglit tlie father's silence. 
 Tlie result sliows it. Ili' ki'i)t the si'cM-et during his life bocanse he 
 had in his pocket what belonged to liis children and not to him. 
 sell and left the infornnition in a letter found atti'r his di'iith, 
 showing the duplicity ot his (k'aling in the transaction. His con- 
 (hict operated as a Iraud u[ton tho assured (henoticiaries ?) and in 
 that (rand the iiiHiirer partieii)atod, with a tull knowledge ot the 
 probahh* consc^pience. The eompiiny cannot (k'fendii[)oii a delimit 
 
 Wliltflifud V, New Yoik l.lf.- Iiis. Co. (IHWl) 102 N. Y., I i:t. 
 
INSURANCE FOR BENEVIT OF WIFE AND CIIIMiREN, ETC, 
 
 :oi 
 
 -^iffigS^ 
 
 ; ■\m 
 
 to which its own lawful act c()ntril)Uteil and hut t'or which a lapse 
 mii-'ht iiKt have occurred. The company kept the secret on its 
 part, an<l now cannot set U[) as a dot'encc the non-paynu'ut ot' 
 preniiunis whii'h it <lid not intend or exfjcct to receive ami which 
 it nuiy justly he said to have occasioned hy its own unauthorized 
 act.' 
 
 238. Surrender of policy issued to one as trustee for his 
 childr.an Failure to pay premium waived by company issuiner 
 new policy Diversion of trust funds — In a stronyly conti-sti'd 
 case hetore the Xew York Court of Ap[»ea1s, the facts were, that 
 the life insured applied for and had issue<l to him, as trustee for 
 his children, a policy of insurance upon his life, that as trustee of 
 his children he paid the premiums ujion tlie same for a numher ol" 
 years, that he defaulti'd in payment of a premium linally, and then 
 surrendered the ohl [lolicv and liad a new one issued in the name 
 (if another henoticiary. a -fcoml wife, with the same nundicr as the 
 orin'inal policy and with riie same premium as originally named, 
 and as of the saine age as when the first one was issued ; and in 
 the same transaction, though no contract was written in the orig- 
 inal i>olicy foi' a snrrcndei" value, yet a surrcmler valu(> of the orig- 
 inal policy was evidently agreed u[ion and was a ])art of the cou- 
 sidi'ration moving the company to make the terms it did in the 
 suhstituted [tolicy. 
 
 Tiie court helow had uiiheld the right of the insured to sur- 
 render the original policy and ivceive aiiotlier naming a different 
 beneliciary. As to his power to control the original [)oliey, the 
 Court of A[i[ieal said : — •■ lie enuld not deal with it in controvi'u- 
 tion of his children's rights, especially with one fully ai)|irised of 
 those rights ami of liis position and duty as trustee. That he kept 
 the policy in his own possession is an imnniterial circumstance, for 
 that possession was consistent with the trust and in entire aoi'ord- 
 ance witli its terms. On the face (d' the contract, he dt'alt ami 
 acted as trustee for the cliildi'cn, ami had no personal or indivi(hnd 
 interest in tlu- policy, and no control over it except in his trust 
 cluiracter and capacity." 
 
 As to tiie transaction on the part of the heneticiary nann'd in 
 tiu' second i>oliey, which recitt'd an amount to he paid hy her on 
 delivery of the policy, the court said: — "She iiaitl it simply hy 
 
 ' Wliltehfiid V. N.V. l.il'e Ins. t"o. supra S. 
 
 m 
 
 V 
 ll 
 
 t: ■, 
 
 ::>' 
 
 r 
 
 j ; 
 
 i 
 
 : ,1 
 
 1 
 
 ■ 1 
 
 ■ -1 
 
 1 
 
 1 ' 
 
 ■1 
 
 h 
 
 i 
 
si 
 s 
 
 I 
 
 202 
 
 INSIRANCK LAW OF CANADA. 
 
 tlie caDCcllatioii of tlio old |poliey and tlu' transfer of its cuuTcndLM' 
 value to the eonipany in rcihu'tion of the annual jtreniinui, and by 
 the process took away that amovmt from the oritrinal henetiriarii's 
 and appropi'iated it to her own use. This was acconiplislu'd by 
 the joint aets of the insured, the trustee foi- the children and the 
 I'onipany liable for tlie insurance.'" 
 
 As to the arifiunent tlnit the policy had lapsed and that the 
 payment of these [iremiums was a mere voluntary act on th" part 
 of the insured, and that when he refused to pay them he had a 
 
 ri^'ht to do so, and was uuiltv of no wront;', the court said 
 
 All 
 
 that is (piite true, except that, after notilyiui;' the beiieticiai'ics of 
 the trust which he had voluntarily constituted for their l)i'nctit, 
 and acting upon it until it had become vahndde to them, good 
 livith requirc(l ihat he should not end the trust without notice to 
 them and an op[iortunity to proservt' it, if they siiould b" so dis. 
 posed, unless it l>e true that they had no interest or rights in the 
 trust |)roperty whatever. But the dithculty with this argument 
 is, that the old ]ioliey did not la]isi' at idl. The failure to pay the 
 premium of 1H78, if there was such I'aihiri', was waived by the 
 
 >mpany in issuing the new policy that 
 
 was n 
 
 1 all respects the 
 
 con- 
 
 tinuation of till' old policy, altered oidy by tiie substitution of a 
 new beneticiarv. Substantially, that was determined in Ihiirr v. 
 
 B 
 
 nniv. 
 
 71 Xew York. 2(j1. It is suggesteil that facts in that 
 
 case 
 
 were that the lapse of the cancelled poliry was arranged lict'ori'- 
 hand iiy collusion with the insurance comi)any, while here the 
 lapse occurretl as a fact without the pre-existing knowledge or 
 assent of the insurer, and it is urged that the hitter's good faith 
 should end in a dill'erenl ruling, lint good faith cannot be assi'rted 
 of one who aids in the diversion of a known trust fund from its 
 
 awlul owi 
 
 lers to the 
 
 p,.s 
 
 session and 
 
 •iictil ol another 
 
 am 
 
 1 th 
 
 fact ol' waiver is not changed by the motive, good or bad, of the 
 insurer. The issue of the new policy in coiitiiiuation of the old 
 one. an<l in preservation of all tlu' essential rights ot' the latter, 
 distiiigiiislu's this case I'roni \Vhile.lii'<iil \. Mnr Yurh- Life Ins. r,i., 
 102 N.Y., 14;{,' so far as the (|uestioii of walviu- is concerned, lor 
 there no new policy was issiU'd at all, and the gratuity paid to 
 obtain possession of the lapsed policy was consistent with a con- 
 stant and continued assertion of its invalidity."' 'I'here was an 
 insistnieiit Ihat the trust was ri'vocable at the option of the trustee 
 and was so far executory as to be capable ol revocation. Finch, 
 
 I 
 
 ' >■» 
 
 //(■(( 
 

 INSURANCE I'OR BENEFIT OF WIFE AND rurLHUEX, ETi". 
 
 2'.):^ 
 
 .r., siiy> : — "But T think it is a mistakt' to assume tliat tlic trust 
 was wliMJly executory. It luui heeii t(^ a large extent exeeuteil. 
 Every payinent of premium for tit'teeu years had steadily added to 
 the value of the |(oliey as tlie pro[terty of the heuetieiiii'ies. The 
 <lay of tiual payment drew nearer and the Inirden of premiums 
 decreased steatlily in numher. Kaeh payment made added to the 
 surreiidci- vahw and fully executed the yifr to the exti'Ut ot that 
 value. What tlu' insured hail (h)ne for the benefit of the assured 
 (heneticiary ?) I'e eoulil not undo without their assent, nor take 
 t'rom them wliat was already theirs and destroy the trust so tar as 
 executed. The rpiestion here does not reach the eni|uirv what 
 might he the rule in tin' case where the insured contracted in hin 
 own name, though for the ultimate benertt of others ; for here ho 
 eontraeted explicitly as trustee, and, so far as the trust was ex- 
 ecuted, neitlier he alone nor he and the insurer together could 
 wrest from the lieneticiarics the [iroduct of the trust and diri'ct it 
 into other channels.'" ' 
 
 239. Revised Statutes of Quebec, 1888 Marriage coven- 
 ants and effect of marriage upon the property of the consorts. 
 (Article 1265 and seq). 
 
 5o8i). Xothing contained in this sectiiui shall he held or 
 construed to ri'strict or intertere with any I'ight otherwise allowed 
 i)y law to any person to ettect or transfer a policy for the henetit ot 
 a wite or children, nor shall it apply to insurance made in tlivor of 
 or transferred to any wife under her mari'iage contract. 
 
 55<S1. Tt is lawt'ul I'oi'any hushaiul : 
 
 ((') To insure his life ; or 
 
 (h) To a[>propriate any policy of insuraiu'c held l>y himself on 
 his lite : tor the henelit of his wife ; or for the henetit of his wife 
 and tlu'ir children generally : nv for the henetit of liis wife and his, 
 hei" and their children generally ; or toi- the henetit ot' his wile and 
 his or her children generally ; or for the henelit of his wile and one 
 or more of his, her or their children : 
 
 2, And lor any father or any mother: 
 
 ('/) To insure his or her lih' ; or 
 
 (/') 'Po a[>pro|iriate any [lolicy of insurance iield liy himself on 
 his life, or hy herself (Ml her life, for the licnctit of his or of her 
 children, orof (Uie or more of them. 
 
 ' (liiiiifr V. (iiTiiiiiiiiii l,if(' Ins. Co. (IS,s,S(, ||ii N\ Y,, •Jdil. 
 
 '!• 
 
 . .1 ■ , 
 
 ; t 
 1 ' '■ 
 
 X. 
 
 f : 1 
 
 i '1 i 
 
 
 i' < 
 
 1 
 1 
 
IW 
 
 294 
 
 IXSCllANt'E LAW OF CANADA. 
 
 5582. Tlie insurance iiu'iitioiicd in tlic preceding artit-le may bo 
 oft'iH'U'd i-itluT tor tlio wliolo term of the lite ot' tlie person wliose 
 lite is iusnreil, or tor any definite period ; and tlie sum insured may 
 be made payable u\)ou the death ot'sueh ju'rson or upon his or her 
 surviving a speoitied period not less than ten years. 
 
 558'>. Tlie premium tbrsueli insurance maybe jiayable during 
 the whole lite ot" the iiorson whosi' life is insuri-d, or iluring any 
 jieriod, not loss than ten years; and the same may be [laid liy 
 yearly, half yearly, (piartorly or monthly payments. 
 
 5584. The ap[iropriation ot' the poliey im-ntioned in article 
 
 5581 is made by a dmthiratiou in writing endorsed upon, or 
 referring and attaclicd 1' *b" policy ajiiiropriated. 
 
 A duplicate ( '' f hi i; ation must be tiled with the company 
 
 wliieh issued the poiie- ! noti' of the tiling of such duplii-ate 
 
 must be endorsed by the company on the policy nr on the decla- 
 nition. 
 
 5585. Such insuraiico lu. ,■ li 
 
 iiectv 
 
 and suili dechiration ot 
 
 appropriation may be unule by a 'uarried wonuin without the 
 authorization of her husband. 
 
 558(1. AVhen the insuranec is effected or tlie appropriation is 
 made for tlu' bt'iietit of more than one person, the husband, father 
 or mother whose life is insured may, in the api)lication and policy, 
 or in the declaration of apiiro|)riation, apjiortion thi' amount of the; 
 
 insurance moncv a> lie or slie niav deem lU'oiicr 
 
 5587. "When no apportionment is m; 
 share in the insurance as follows : — 
 
 prop 
 de, tl 
 
 le iiai 
 
 ties interested 
 
 1. If the insurance is t'oi- the benefit of a wife and t 
 
 le chil(li'cii 
 
 issue of lu'r marriage with the person whose lite is insured, one- 
 half for her and the other half for their ehildrcii. who sub-divide 
 
 ecu 
 
 lalh 
 
 2. If lor the l)eiiefit (tf a wife and her ciiihlreii. 
 
 one-hall lor 
 
 the wife and the other half for her ehiMreii (whether issue ol'th 
 
 same or ot difrereiit marriages), who suli-divide e(|ually ; 
 
 4. If for tlie beiu'tit of a wife and lu-r liusbaiid"s and hi'r own 
 childrt'ii, one half for the wife and the other hall for his children 
 (whether issue of their or of other marriages), such <'hildreii sub- 
 dividing e(|ually : 
 
 5. It for the liciu'lit of a wife and one or more cbildrt'ii 
 specilled by name, one-half for the wile and the otlier half for such 
 child, or for such children who sub-divide eiiually ; 
 
INSUUANri- roR T.ENEFIT OF AVIKK AND CIIILUKKX, KTC 205 
 
 (!. H'fof tin- liem'lit of cliiUlron only gi'inTully, ('([Uiilly be- 
 tween the children of the parent whose life was insunil. (wliether 
 issue of the same or ditleront marriages) ; 
 
 7. If for the benefit of several chihlren specified by name, 
 eipially between them. 
 
 o5S8. Wiien any child, specified byname nv included generally 
 predeceases the person whose life is insured, the descendants ot 
 such ])redeceased child take his or her share by representatiun. 
 
 aoH!). When the insurance is t'ttccti'd or the a]ipropriaiiiin is 
 made without api)ortionment in favour of several children, 
 whether it be jointly with a wife or in favour of children alone, it 
 any of such children predecease tlu' person whose life is insured, 
 without issue, accretion takes place in liivour of tlie sui'viving 
 childri'ii. 
 
 When the insuraiu-e effected or appropriation made without 
 apportiomnent is in favoui- of a wife and a child or children : if the 
 wife predeceases her husband, accretion takes place in favour of 
 the child or children ; and it the child or all the children pre- 
 decease the husband, accretion takes place in fnvonr ol'the wife. 
 
 JjoOO. It shall be lawful for any party wh has efU'cted an in- 
 sura. e, (u- who has appropi'iated a policy of insuriince. lor the 
 ln'iudit (jf a wite or of a wife and child or ciiildren, or <if a chiiil or 
 children, at any time and tVom time to ti)\ie thereafti'r, to revoke 
 the heiietit conferred by such insurance or appro]n*iation, either as 
 to one or mort' or as tv) all oi'tlie ]iersons intt'nded to Ik- beuv'tired. 
 and to declare in tlu' revocatimi that the policy shall be ti<v the 
 benefit only ot the persons not excluded by the ri'vocation. or for 
 the benetit ot'such persons not excluded, jointly with anotiicr or 
 others, or entirely for the bt'iietit ot' another oi' others not origniaily 
 mimed or bemdited. 
 
 Such other ov othei's mu>t be :i perxm or persons for whose 
 benefit an insui'ance may be ellected or ii|i|iroin'iated nndi'i- tliesc 
 provisions. 
 
 5501. 8ueh revocalioii m:iy be made either liy nu instrument 
 lo be attiii'lied to the policy, :ind of which a duplicnte must be liletJ 
 with the conn»any whicli issued the policy, and a imte of the tiling 
 of such duplicate must be endorsed by the company on the poliey. 
 or on the instrument retained, or by will, of which, iifter the party's 
 dciitb. an luithentic copy must be signifie<l upon the company. 
 
 In default ofsucii ihiiiticale being tiU'tl or of suv'h copy lieing 
 
 
 >-,i 
 
 I H 
 
 I : l! 
 
TWT 
 
 -fm 
 
 w 
 
 2!'>t; 
 
 INSURANCE LAW OF CAXADA. 
 
 si;.m;tioil, fliu ci")m[>any will lie valid!}* <li*i'liargoil hy |iayiii_n" tlu> 
 iusuraiK'e iat)iioy according to tlio tonus and iliivotions of tin." 
 policy, or ot'tlio declaration or of a proviourt revocation. 
 
 ;3o92. The policy reverts to the insured : 
 
 !. When the child for whose henoiit it was effected or anpro- 
 priate-1 or the surviving child tor whose benetit it was ettected or 
 
 hild for whose henetit solelv it 
 
 appropriated or the survivnig ( 
 
 exists, dies without issue, before the [lerson insured. 
 
 •2. When the wife for whose solo l)enetit it exists either by tln' 
 policy, aiiproiiriatioii or revocation, or by accretion, prodoceafees 
 her husband with or without issue. 
 
 The benetit of any share in an apportionment likewise reverts 
 to the insured when the child to whom it was ap[iortioned, dies 
 without issue before the insured parent, or when the wife to wliom 
 it was ai>portioned. predeceases her husband with or without issue. 
 
 .")5lt:5. When a policy reverts to the insured, in whole or in 
 
 as it so reverts as it 
 alwavs lu'ld for his own 
 
 1 la r: 
 
 he 1 
 
 nsured niav <b\d therewith in so t'ar 
 
 le nisurance 
 
 tl 
 benetit. 
 
 had been etti'cted and had 
 
 lolU. The insurance elt'ected in the eases mentioneil in the 
 
 preceding articles may be nnuh 
 
 navabl 
 
 e by the a[iplication am 
 
 policy or by the declai'ation <n' api»oi'tionnient or by a revocation, 
 
 I anv o 
 
 iher [icrsons as trustee; 
 
 either to the parties l)enefited oi' t( 
 tor the parties benelited. 
 
 ."».');),"). When no trustees are a[)pointed by the application, 
 policy, or 1)V the dei'laration of appro[iriation or by revocation, it 
 shall be lawful I'or any pci'son whose lite is insured, l)y an instru- 
 ment to be attached to thi' [lolicy, and of which a du[)ticato must 
 be tiled witli the comp;iny which issued the [lolicyand its tiling be 
 notetl bv the C()m[Kiny u[tou the instiMimcut retained or by will, ol 
 which (after the testator's death) an authentic eopy must be 
 aigniiied u[ion the c(un[iaiiy, to appoint a person as trustee tbr the 
 parties Iieiudited or tor any ol'them. 
 
 Wh 
 
 leii tile person wliose lire h nisurei 
 
 if( 
 
 d .lii 
 
 itl 
 
 WltllOUt 
 
 having ap|)ointed trustees for any minor children beiietited or for 
 anv benelited persons dis(|ualiHed from exercising their rights, the 
 pavnieiit of the insurance money coming to such minor children or 
 dis([Ualilied persons shall be nnuh' to the testamentary execiiti 
 such in-ured person, who shall be the trusti'es of such disipia 
 
 litied 
 
 pers 
 
 on? 
 
 Hi 
 

 INSURANCE FOn liEXEFIT OK WTFE AND I'MILDREN. ETC. 
 
 207 
 
 In ciiso trii:<toos f<f [lovsons in tlu' i-xcTci^r of tlicir riijlil-! 
 i<linul(i ret'iisi' to arci'pt, tlu' paviiu'iit, >liiill lio matlo to such iK'tictiroi! 
 persons tlu'nisclvcs. 
 
 5.)1)7. The piivniunt niaiU' to anv luMiclircd [)frsons not di^- 
 ([ualifii'd from exercising tlieir rig-lits, to any trustees, to any ex- 
 ecutors, or to any tutor or cunitor, shall lie a valid ami sufHcicnt 
 discharge to the insurance company foi- the in -urance money so 
 paid. 
 
 The company shall not l)e hound to see to ihe investment of 
 the money, or l)e liahle for the suhstM|Uciit rnisapidication therent' 
 hy any trustees, executors, tutors, or curators. 
 
 5')!i8. The trustees shall pay over the insurance money 
 receivetl for persons in the exercise ot tlu'ir rights to such persons 
 at once, if no conditi(»n.s have been imposed as to such payment, I'v 
 the insured, hy the policy itselt, hy the declaralion of appropri- 
 ation or hy the terms contained in a deed of revocati(Ui. 
 
 If comlitions have heen imposed, the trustees shall carry out 
 the trust and administer and pay over the insurance money in 
 accoKhvnee with its provisions. 
 
 The insurance money received hy any trustees, executors, 
 tutors or curators for minors or persons disiiualitied from exei'- 
 cising their rights, shall he invested hy the parties receiving it in 
 Dominion, or I'roviucial dehentures, miinicijial debentures or on 
 tirst [)rivilege or hy[iothec upon real estate, ^vith [lowi'r, howevei'. 
 to t<uch trustees, testamentary executors, tutors oi- curators. I'rom 
 time to time, to alter, vary ami trans[iose the investments held. 
 
 550n. All or any part of the annual income arising from the 
 investment ot the insurance money may be ap[ilied towards the 
 maintenance and eilucation of the minor children, or towards the 
 maintenance ot the persons dis(puilitied. for any othei- reason than 
 •^'..af of minority, from exercising tlieir rights, as the trustees, testa- 
 mentary executors, tutors ov curators n;ay think tit. 
 
 "When all the annual im-ome is so apiilied. the surplus shall he 
 capitalized and invested in the same manner as tin' insurance 
 money received. 
 
 ")(!00. Unless stipulations or conditions have been im[ioscd. 
 which must be carrii-d out, the investmei\t shall lie ti'ansferred by 
 the trustei's. testamentary executors, or tutors or curators : 
 
 1. In the case nf a minor, to himself when lie attains majority : 
 
 2. Ill the case ot' a person dis(|ualitied tor any otliei' I'easoii 
 
 t 
 
 6' !. 
 
 :|| 
 
 I ' ' ' 
 
 U:l\ 
 
 -It 
 
 (> 
 
 ■h ■! I i 
 
1'° 
 
 .">( 
 
 •8 
 
 iN>n;.\NrE i.wv ui- caxada. 
 
 rliaii tliiit oi' iniii.i'.'itv. tVdiii cxririsiiii; liis riirlits, to liiinsclt' \vl 
 
 1011 
 
 1k' roixaiiis thrif oxi'i'i'isc. nr to 
 tcifiiiiiiiiii' tlii'ir t'Xcrriso. 
 
 liis 1 
 
 u'lr- 
 
 AVlUll 
 
 hv i\\ 
 
 without 
 
 It si 
 
 liil 
 
 lu'Vcrt 
 
 )K'k'?s, 111' liiwtnl, sliould tin.' trn>tc('s, ti'stai 
 
 tiiiv executors or tutors tliink tit, to advance the 
 
 or 
 
 to ll 
 
 lien- 
 insurance money, 
 .'ds tc 
 
 ispose of tlie inw'stiiieuts and advance tlio [U'ocoeds to anv 
 liis minoritv for the estaldisliment, udvanco- 
 
 inuior child (lurin<x 
 
 luent or iiri't'ernieiit in tlie world, or I'ortlie settlement in marriage, 
 ot' sutdi eiiild, 
 
 6001. It" a nerson \v 
 
 ho has etiected or iipiiropriated 
 
 an in- 
 
 surance for the lieiielit ot a wife or ot a wife and children, or of a 
 child and children only, finds himself unahle to continue to meet 
 the ]iremiunis, it shall he lawt'ul for him to surrender the policy to 
 the comiiany which granted the same, and to accept, in lieu there- 
 i>t. a iiaid-up policy, payahle at the tiiiio. in the manner and for the 
 henetitofthe persons nieiitioneil in the oriji'iiial policy; and the 
 shari' of each jierson, when more than one are honetited, will he 
 proportionately reduced. 
 
 5602. Any person haviuir effected an insurance with profits 
 
 e lor his own l)enetlt, or niav. tVomtimo 
 
 re- 
 
 may either receive the sam 
 
 to time, either ai'ply the sauu' in payment or reduction of p 
 miums, or diivct them to l>e added to tlie insurance money ; 
 and the sliai'e of each ]>erson, when more than one aiv henetited. 
 
 wi 
 
 11. in the last 
 
 I'ase, 
 
 pro[iortioiiately increased 
 
 Trofits accruiiiii' after a policy has hoen paid up. 
 
 mav he re 
 
 ccived hythe insun'd tor liis; 
 
 dtl 
 
 ow 
 
 n henetit, or mav he added to the 
 
 insurance money : and the share ot I'acli person, when more tiiau 
 
 one arc 
 
 henetited. will then also he jtroportioiiately im'reased. 
 
 5t)03. Any pcr-i 
 
 m wiio 
 
 h 
 
 >ttect 
 
 ed or ai>propriated an ii 
 
 sunuice for the henidit of a wife, or ot a wife and child or children, 
 or of a child or children only, and who finds himself unahle to 
 (oiitinue to nu'ct the [H'l'miums. may from time to time l)orrow, on 
 
 th. 
 
 •uritv 
 
 •th 
 
 holicv, s\icn sum as mav he lu'ci-ssarv 
 
 to k 
 
 eeii 
 
 the policy in force 
 
 Tl 
 
 ic loan?- 
 
 nai 
 
 »e evKienccii ov a w 
 
 Ih 
 
 ■ritiuiT of which a duplicati 
 
 must he tih'd with the company which issued the policy and noted 
 hy the company on the duplicate retained hy the lemler. 
 
 Such loans shall he st'curcd hy pi-i vile <;•(.' on the policy, ami the 
 com|iany shall retain a sulHcieiit anntunt to pay them from the 
 
 insuranci' mouev, 
 
INSIRANCE von 1!EXEFIT OF WIFK AND rilII,|ii;i;N-. KTf. 
 
 20ft 
 
 IT >in-li liiiiiis be piiid l)ot(iri' tlic ilciitli ol' tin- iii>ii!'oil, tin- 
 ;u"'|uittiiiu'i' shall l>o tili'd with the (■oiiiiiiiiiv. 
 
 .")(;04. I'dl'u-ii's I'tliTti'd (T iipiifoiiriati-'il iiihUm' this sortioii ari' 
 oxoin[>t tVoiii attaohiiu'iit tor lU'lits tliic I'ithi'r hv tlu- iiisnivd or ])y 
 persons ln'iiotitod. and shall also ln' iiiiassiii-nable hy cither of siioh 
 parties. 
 
 The iiisuraiK'i' nioiioy, while in tiu' hands ot" the company, 
 shall ho free from and he nnattachable lor the dehts I'ithcr of the 
 insnred or of the jicrsons henetited. and shall he paid accordin«; 
 to the terms of such policies, or ol any declaration of a|>pro[iriation, 
 or ot'any revocation relatinjj; to the same 
 
 Such exemption shall not ajiply to any policy, oi' to part 
 thereof, which may have reverteil to and he held liy the injured. 
 
 5(!0). The insurance money shall not he deemed to he derived 
 from the succession ot'or comnumity ol' property with, the pei'son 
 whose life was insured, audits reeeii>t hy any person hi'iu'liteil shall 
 not constitute an acceptance of the sm-cession of suchpersiui or of 
 any community of property which existed with siudi person. 
 
 nOOti. If, however, it shall hi' proved that all or any o| tin- 
 premitims were paid, at a time when the person wlictse life was 
 insured was insolvent, in fraud of the riu'hts of creditors, such 
 creditors shall he entitled to recover ami to receivi' out oi' the in- 
 surance money, an amount eipial to the iiremiums so paiil : and in 
 such case, the share of I'i'ch pt'rson. when mori' than one are lieiie- 
 tited will lie proportioiiati'ly reduce(l, 
 
 239a. 58 Vic. c 16 Q,- An Act respecting life insurance and 
 community. 
 
 1. When a husband, who is in comnmnity of property with 
 
 his wife, has insured or insures his life duriui;' the existence of the 
 
 said community, for a premium payabK' at stated periods, and that 
 
 such insuraiu'C has bei'u maile or is payable to his wile, or that it 
 
 has been made oris itayable to the husband or to his assiu'iis. and 
 
 that the wife has predeeeas(Ml him. or predeceases him. and that he 
 
 siirvivi's lontrer than the vear covered bv the last iiaNiueiit made 
 
 iluringthe existence of the comnmnity. then, iftlu' husband, after 
 
 the ilissolution of the said community, has alone paicl tip or pays 
 
 up the saiil premitims he remained and remains sole master and 
 
 proprietor of any such insurance, the capital of which shall beliuiii,- 
 
 to his estate at his death, subjoet only to the obliiration (d'account- 
 
 iiiiT to the communitv for the surrender valiu> of su:'h insurance at 
 
 l-i fill 
 
 H 
 
 t;l|! 
 
 k'M 
 
 1 -^f: 
 
 l,Li . . 
 
300 
 
 IXSURANCG LAW i<V CANADA. 
 
 the tiiac oT til'.' (li.-.-dlutioii tlnTcof, which valiu- -hall I'c >taUil in 
 tlio illVi'iltnry. 
 
 When, at tlic dissohuidii oC tin- saiil ((fmiminity. the iiuiiibfr 
 oi'iirciuiiiins pai<l arc not siitficit-iit to g'wv a siiiTi'iitlri' value to the 
 pdlicv, it tlic husliaiid af'ti'invards pay tin- iiuiiihi'r of iPt>'iuiniiis 
 i\M|iiii'i'il to i^ivf a siuiHMulcr valiU' to the [lolicy, tlii'ii *li<- hushaml 
 oi' his estate siiall account to the coininuMity toi' only the [iropor- 
 tioii ivjircsentcd hy tlic pfeniiiinis [.aid during the eoininunity. 
 
 2. The pi'eccding provisions shall, as to the past, only ap[>ly to 
 such contracts ot'insuranec or policies whicli are -till in lorce, and 
 where the husliand is still living when this Act eiunes into f'orie. 
 whetlior the wife shall have predeeeased him. or -hall heiearter 
 predecease him. 
 
 3. The rights acipiired liy creditors hel'ore the ee>mii)g into 
 force of this Aet are preserved. 
 
 4. This Aet sliall not he interpreted as di'claring tliat the law 
 was previously difi-eri'iit from that herein expressed, 
 
 0. This Aet shall eome into I'oree on the dav of its sanction. 
 
 ;;; 
 
 '■' !■:•■■ 
 
 *■ 
 
 240. Sections of the Ontario Insurance Act, 1897, 60 Vic, c. 
 36, in as far as they apply to subject matter dealt with in this 
 chapter — 151. — (2) Frauils in p<n/iiu')i(.-i of i)re)tiiiiiiis. If the 
 policv was eftected an.d premiums paid In- the assured with intent 
 to detVaud his creditors, tlie creditors shall l>e entitled to receive 
 out ot'the sum secured an amount e([ual to the iiremiums so paid. 
 R. f>. ( ).. 1837, c. 180, s. ■22. 
 
 l.')4. — (1) L)siir((H('i' iiKinei/, Aow ii'H/ahle. — "When the insurance 
 money heeomes tlue and payable, it shall he [laiil within the time 
 prescribed by section 80, and according to tlie terms of the policy 
 or of any declaration or instriunent as aforesaid, ami shall, in the 
 case of preferred beneficiaries, be free fi'om the claims of any 
 creditors ot'the assnretl cxce[)t as in section ir)l provided. R.S.O. 
 1887, c. l;'.5, s. 10 (1). 
 
 (2) C'l-'^e of infa»> lienr.tii-i'i.i-i.es. — Where the insurance money or 
 part thereof is tor the benefit, in whole or in part, of infants, and 
 the int'ants are mentiotied as a class and not by their individual 
 names, the nK)ney shall not be payable to the infants until rt-ason- 
 able proof is furnished to the instirer of the ninnbi'r, names and 
 ages of the infants entitled. Il.S.O. 1887, c. 130, s. 10 (2). 
 
 l.j'). — (1) Appointment nf Int.stcea. — The insured may. hy the 
 policy uv l)y his will, or by any writing under hi- haml, appoint a 
 
 
 ™f. 
 
% 
 
 INSUKAN'E Vi'W V.V.SKVIT nl' WIFE .VNIi cilILliliK.V. ETf 
 
 •iOl 
 
 triistci- cir tru-rrc> .it' 'liv iiiniicy |ia_v;il>lt> mulfr rln- coutriict of 
 iiisuraiicf, ami may tVoiii tiiiio to time I'l-vokr such aiipointmeur in 
 likr maiiiu'r, and appoint a lu'w trustee ov new trustees and make 
 provision tor tin- appointment of a new trustee or of lunv trustees, 
 ami for the invr^tuu'Ut ol'llie nionevs payahle under tlie coutrai-t. 
 ''•ymeut niadi- to >urh trustee or trusree> shall di>i'hari.''c the 
 ompany. K.SO. l^^T. e. ]-Wk s. 11. 
 
 (2) W/ii'i'i ii'i ii'iisiif jiiii/iiK'iif 'if slid res lit iiifidils. — If no trustee 
 is iiametl in the eoiitr:i( I ol insurance, or ajipointed as mentioned 
 ill >uli->ection 1. to (.■••cive tin- sliares to which iut'anis are entitled, 
 their sinires nuiy he [paid to the executors ot" the last will and 
 testament of the a>sured. or to a yuardian of the intants duly 
 appointi'(l liy one ot the Surroi^ate Courts ot this Province or hy 
 titc IIiu;li Court, or to a trustee ajipointed i.y the last named Court, 
 upon the a[)pli.'atioii of the wife, or of the intiuits oi' their Li'uardian, 
 ami sucii paynii-wt -lial! lie a li'ood discliarn'e to the insurance 
 company. 
 
 (8) Scciirif'/ III/ i/iiiiriliiiii. — A n'uardlan appointe(l undt suh- 
 section '2 shall ^ive security to the satisfaction ot' the Court or 
 ludgi' for the t'aithful performance of his duty as y^uardian. and for 
 •e proper application ot the money whicli he nuiy receive. 
 
 Pinrlsii. — Provided that wluu\' any in.-uranee nioiu-v not ex- 
 eeeiling 83,000 is payal)le to the wife and children ol the a<-r, red, 
 and some or all of the children are inl'ants. the Court or .lud<;'e 
 shall luive discretion to ap|ioint tlu' widow ot the assured, hciny; 
 the mother of sucli infants, as tlieir g'uai"<lian without security. 
 
 (4) Sii.rrDijale j'l'cs in rerlniii cusc.s. — AVhei'e prol)ate is souiiht in 
 i'es[iect of a will \\\v the sole|iurpose of ohtainini:' insurance nioiu'y. 
 the fees payable on an aiipointnu'iit of a guardian lU' repre-entative 
 shall l)e as follows : 
 
 Where the insurance money does not exceed si. 000, §4 ; 
 where i..i' insurance mom-y exceeds SI. 000. hut doi's not exceed 
 $2,000, .?6 ; where the insurance money exceeds 82,000, Itut does 
 not exeeed 8-5,000, 88 : and siudi fees shall he regulated (Rev. 
 Stat, e, 58) in the manmu' pn'serihed hy section (JO of TJu' Si/cro- 
 'jiilc Conrls Art. Cf R.S.O. 1887, e. l:3li, s. 14. 
 
 (5) III cestui (lit of shares of iiifdiits. — Subject to tlu' ex[iress 
 terms of the trust iiiritrument (if any), any trustee named as pro- 
 vided for in subsections 1, 2 and 8, and any executor or guardian 
 nniy invest tlie money received in any security in winch trustees 
 
 '4: 
 
 i;S' 
 
 If 
 
 ii 
 
Urn, 
 
 HIIMf 
 
 302 
 
 INSUIIANI'K r,AW OF ('ANAMA. 
 
 ilHJ 
 
 i[[ 
 
 ):.! 
 
 iim 
 
 miller fill' liiw of til" I'l'Dviiico iiiiiy iini'st ti'iist, liinds. jiiid may 
 iVoiii time to time iilti'i-, varv iiiid transpose tin- iiivestmciits and 
 apiily all oi' [)iirl, ol tlic atiiiual iiicoinc arisiiiij,- from tlu- sliun; or 
 |)i'('siiiii])t ivc share oi cjieli (d' till! iiil'ants, in or towards his. or lier 
 maiiiteiiaiiee and education, in Hiicli miiniH>r as the trustee, executor 
 or u'uardian thinks fit, and may also advance to and for any of the 
 infants, notwitlistiindinu; his or her minority, the whole orany |iart 
 of the share of theinfiint ot'and in tin; money, tor the advancement 
 or iireferment in the world, or on the marriaL;-e. of such infanl. 
 ll.S.O. 1SS7, c. l;5»), s. 1:3. 
 
 ].")((. — (1/ f)i'(l,lli iif iissili'i'd iiIii'iiikI, iiii i/nijtil hi I'lii'i'ii/ii i'ijii'i's('ii- 
 hilirr. — Where under a contract made or hy law decnnMl to he 
 made in ()ntario. tlu' insurance money is payaMe to the represen- 
 tatives of a person who at his death was domiciled lU' resident in a 
 foreiu;n jurisdiction, and no person has liecome his personal rcpie- 
 sciitalivein ()nlario. the money may on the expiration of two 
 monllis al'tei' such death, iie paid to the persimal representative 
 ai'pointed iiy the (!oiii't of the liireitjn jiii'isdictiiui pi'ovideil it 
 appciirs upon the prohati^ or letters of udminist rat ion, or othei- like 
 document ol such ('.oui'l,(U' hy a certificate ofthe .lud!j,'e, under the 
 seal ofthe Coui't,, that it has hcen sliewn to the ,-atisfacl ion of the 
 (Jourl that the d(;ceased at the time ofhisdcatli was domicilecj or 
 resideiii at some place within tlie .jurisdiction of siicji Couit. 
 li.S.o. |SS7, e. 1(;7, s. l:;7 (1) ; r.l \'., .-. 12"), s. 1. 
 
 {'!) \\hi',ii ciinh'iii'f ilii'i'i'ls piii/iiii'iil til fiii'i'ii/n I'i'jiri'siiiliillri'. — 
 W^lieii thecojiti'act ol such insurance provides that the in.-iirancc 
 money may he paid to tlu; personal r(>presentalive appoititeil hy 
 the Ooiirf of the jiirisdii'tioii in whi(di the deceased was resident or 
 domii'iled at tlie time of his death, the money may he jiaid to 
 sindi representative acc(U'(linirly at any lime after the death ;if'ore- 
 suiil or according; to the terms ofthe policy. .")! \. c. 2"), s. 1, 
 
 (:{) Iiilishici/ : i)iii/iiii III (inll/iiiiil nyirrsDiilnfidii) iifi'iirilinii lo furflijii 
 Imn, — Where under a contract nnide or hy law deemed to he miuh', 
 in Ontario the insiiraiii'e money is payahle to the representatives 
 of a person who, at the time of liin (U>ath was domiciled or resident 
 ill a foreitjn jurisdiction and died intestat", the tiioney may after 
 the ex|(iration (d'thri'e months after siudi death, it' no person has 
 hecome his personal representative* in Ontario — he paid to the 
 perwon or persons entitled a(^ -inrniu; (o the law of the foreij^n 
 jiirisdi(!tioii to receive tho money and i^ive a dirtcharj^'c for the same 
 
INSIKANCK Kull IJKNKirr m|.' WIKK AND (11 1 1, Kit KN, KTC. oO:? 
 
 
 
 
 t 1' 
 
 il'siii'li iiKiiii'V were \>y the fcniis nl' the runl I'lU't juiyiililii in sihii 
 I'orcii:;!! inrisdictinii. oii V. c. ;!i'. <. 7. 
 
 (4) '/Vsliiri/ : ii'ii/iiii'iit iH'riirdimi hifnri iijii Imr. — Wlicii u tcstiifoi' 
 (loiiiicili'il or resident in ii i'oreiitn Jiii'is<licti(in iiis|ios<M ot tlic 
 insui'aiife money i>y ii, will, valid aeeoi'dinn' to the hiw ol' tliat 
 Jiirisdietion, then sncli money nniy he waid at any time alter deatlu 
 or accord inn; to the terms ot'the eontrael in tiiat i)ehalt', to the 
 person or |iersons entith'il iindei- such will to receive nnd n'ive a 
 valid dischari^e lor nioiu'y ]tayal)le in smdi t'oreii;ii jnris<liction. 52 
 \'. e. :'>■■',, s. 7. 
 
 (.'») Will )•'' i/iinriliii II (I jiiiii'uilril III/ l''iriiijii Ciiiiii. — Where it 
 appears ii|ion any letters ol li'iiardianship oi' nt her like doeunieitl, 
 relatjnj; to persons under incapacity, issued ay in lie issued hy a 
 (!oiirt, in a lorei^'n jui'isdielion, or hy a eertilicate nl' the dud^'e 
 undi'r the seal of such ( 'ourt, that it has hcen shown lo t lie satis- 
 faction of such (loll rt that t he assured at the maturity of t he policy 
 was (himiciled <tv resident within its iuris<lii't i(ui, and where 
 security to the satislaction ol' the Cuiirt has heeii ci\'cn hy the 
 i^uardian or othei' like ollicer appointed hy the sniij letters or 
 document, then tlu' llii;'h ('oiirl upon application tor the appoint- 
 ment ot the said 'j,'uardian or like ollieer as t-ustee under tjiis 
 section, may dispeiire with the ^■ivill^• (d" security, pmviiled it lias 
 al>o heeii shown that the inliints or other heiietii'iaries under 
 incapacity reside within tiie jurisdiction of tin' foreii^'ii ('oiirt, ami 
 that the proposed trustee is a, lit and proper person, ami that the 
 s(!ciirity has, in accordance with the practice olsiieh forei<;Mi Ooiirt, 
 hccii t^iveii in respect ofand for the (hie application and account (d' 
 tlu; money |iayahlc under the p(di(y. o*) \ . c '■>.l, s. 7 : •')II V. c. 
 45,s. 4(-). ' " 
 
 (tl) This s(>ctioii applies to policies heretot()r(( issued as well as 
 to policies to he IssikmI hereafter, and wlielhcr the death liaH 
 occiiri'cd hei'on! the piissiiin' of this Act or not. K.S.( >. IM.S7, c. 
 HIT, s. \'.\1 (•>). 
 
 157. — (I) /iisiiri'.i' iiKii/ I'liji iiiiiiK'i/ iiilii < ''iiiii. — \\' there is no 
 tniHte(!, executor, or ii'iiardiaii competent to receive the share of 
 any infant in the iiisurimee iiiiuiey, and tlu! insurer admits the 
 claim or any pai't thereof, iIk; insurer at any time after the cn- 
 jiirati(Mi of two moiilhs Iroiii t he date of its admission of the cliiiiii 
 or part, thereof, may (ditaiii an order from the Hindi ('(dirt for tin; 
 paytiK'iit of the share id' the iiilant into Coiii't, and in sindi eiis(( the 
 
 ! ) 
 
 
 1 
 
 i 1' 
 
tmm 
 
 ?■ 
 
 K)4 
 
 INSURANCE LAM' 01' CANADA. 
 
 i 
 
 
 ousts ol' ilio apii!i-ati')ii sliall lie jmid out of the sliuro (uiiloss the 
 Court otlierwisi' (iircttsj, ami tlic residue sliall he paid into (yourt 
 |iui'suautto tlie order, and suth pavini'iit shall he a sufficient dis- 
 charge to the insurer lor the money jiaid ; and the money shall he 
 dealt with as the Court may direct. K.S.O. 1887, e. lao, s. 1.5 (1). 
 (2) W/iere claint inliKlffril, Iml iiinuei/ itnl /hi id. — It' the insurer 
 not within sixty days from the time that the claim is admitted, 
 iiher pay the same ro some person comjtetent to receive the money 
 inider this Act, or pay the same into the JIii.;-h Court, the said 
 Court may upon application nnide hy some one comiietent to 
 receive the said m »ney or Ity soim; other [lerson on hehalf ol' the 
 iniiint, order the insurance m luey, or any [)art thereof, to ho paid 
 t) any trustee, executor, or ^'uardiau competent to receive the 
 same, or to h;' paid into Court to l)e dealt with as the ('ourt may 
 direi't. and any such payment shall he a >>()od discharge to the 
 insurer. R.S.O. 1887, c !:!(;, s. M (-2). 
 
 <-) 
 
 ( ' ,,s7.N 
 
 The Court mav onl 
 
 er the costs of the application. 
 
 and any costs incidental to cstalilishiiiii' the authority of the ]iarty 
 applying foi- the oi'dei', to 1k' paid out of such moneys, or hy the 
 iiisurci'. or otherwise, a- may seem just, and the C!ourt may also 
 order, the costs ol', and inci<lental to, ohtaining (jut of Coui't 
 moneys voluntarily paid in iiy an insuri'r. to he paid out nl such 
 
 monevs. 
 
 II.S.O. 1887. 
 
 !(i, s. 1;-) (;!). 
 
 158. — (1) P'lWer to cniircr/ info /Kiiil h/i pulici/. — If a perso 
 
 tn who 
 
 has hei'clofore ellected. or who hei'ealtei' etl'ects, an insurance for 
 the henetit of any pi'eferred henetieiaiy or henetieiarit's, wln'ther 
 such hv'UcHt ap|iears l)y the terms of the policy or hy endorsement 
 tiiereon, or hy an instrument referring to an<l ideiifilying the 
 p.ilicy, llnds him>eU unalile to continue to meet the pi-emiums, he 
 may surrender the policy to the insiii'ei', and accejit in lieu theri'ol 
 a [toliey for such sum as tlu^ premiums paid would re]uvsent, 
 payahle at death or at the endowment age or otherwise us the case 
 may l)e. in the same manner as the money insuri'd hy the original 
 policy if not surri'ndered would have heen jiayahle ; and the 
 company may accept the surrender and grant the paid up policy^ 
 twithsfanding any tleclaration or direction in favor of any pre- 
 
 no 
 
 fc rri 
 
 d 
 
 itenc 
 
 iiciai'v or ItiMii'ficiaries. ll.S.O. 1S87, c, l:i(!, s. 1(J. 
 
 (•J Piiirer In lun'mir nt, Ihc /iiilic>/, — Tlie assured may, from lime 
 lo time, h irrow from the insurer, or from any other <'orporation, 
 I'onipany or person, on the si'curity ot the policy, such sums as 
 
INSURANCE FOR BENEFIT OF WIPE AND CHILDREN, ETC. 
 
 306 
 
 may be necessary and shall be applied to keep the policy in force, 
 and on such terms and conditions as may be agreed on ; and the 
 sums so borrowed together with such lawful interest thereon as 
 may be agreed, shall, so long as the contract remains in force, be a 
 first lien on tL 3 contract and on all moneys payable thereunder, 
 notwithstanding any declaration or direction in favor of any 
 preferred beneficiary or beneficiaries. R.S.O. 1887, c. 136, s. 17. 
 
 (3) Power of assured and adults to deal with policy. — Where all 
 the beneficiaries, whether preferred or ordinary, are of full age, 
 they and the assured may surrender the contract of insurance, or 
 assign the same, either absolutely or by way of security. R.S.O. 
 1887, c. 136, 8. 24 : 51 V. c. 22, s. 4 ; 53 V. c. 39, s. 8. 
 
 (4) Who deemed person entitled to benefit of policy for -purposes of 
 subsection 3. — Where by any contract of insurance or by the 
 declaration endorsed upon or attached to or identifying by its 
 number or otherwise, any contract of insurance (whether such 
 declaration has heretofore been or shall hereafter be made), it is 
 provided that the contract shall be for the benefit of a person, and 
 in the event of the death of such person for the benefit of another 
 person, such first mentioned person shall, if living, be deemed for 
 the purposes of subsection 2 of this section, the person entitled to 
 be benefited under such contract. R.S.O. 1887, c. 136, s. 25 ; 53. 
 V. c. 39, s. 7(1). 
 
 (5) This section shall apply not only to any future contract 
 of insurance, and to any iloclaration made or relating to any such 
 contract, but also to any contract of insurance heretofore issued 
 and declaration heretofore made. 53 V. c. 39, s. 7 (2). 
 
 159. — (1) Preferred beneficiaries. — Where a person (hereinafter 
 called the assured) effects insurance on his or her own life, and 
 either by the contract of insurance, or by instrument in writing 
 attai'hed to or endorsed on, or identifying the said contriict by 
 niimbor or otherwise, declares the insurance money or a portion of 
 the i»rincipal or interest thereof to be for the benefit of the husband, 
 wife, children, grandchildren or mother of the assured, then such 
 contract shall (subject to the right of the assured to ap[iortion or 
 alter as hereiiuifter enacted) create a trust in favor of the said 
 beneticiary or beneiiciaries, according to the intent so expressed or 
 declared, and so long as any object of the trust remains, the money 
 payable under the contract shall not be subject to the control of the 
 assured, or of his or her creditors, or form part of his or her estate, 
 20 
 
 vh 
 
 M' 
 
 I I \i 
 
 f •! : '1 
 
 I. !■ 
 
 
1 'f 
 
 i 
 
 
 ■ } 
 
 1 
 
 nl t ■ ' 
 
 
 306 
 
 INSURANCE LAW OF CANADA. 
 
 when the sum secured by the contract becomes payable ; but this 
 shall not be held to interfere with any pledge of the policy to any 
 person prior to such declaration. R.S.O. 1887, c. 136, s. 5 ; 63 V. 
 c. 39, s. 4, and s. 5 ; 66 V. c. 32, s. 8 (1) (2) ; 59 V. c. 46, s. 2. 
 
 (2) Who shall constitute 'preferred beneficiaries. — The husband, 
 wife, children, grandchildren and mother of the assured shall 
 constitute a class which may be known as " preferred beneficiaries," 
 and all other beneficiaries may be known as " ordinary bene- 
 ficiaries." 
 
 (3) In the case of a policy or written contract of life insurance 
 effected before marriage, a declaration under this section shall be, 
 and shall be deemed to be as valid and eftectual as if such policy or 
 contract had been effected after marriage. 53 V. c. 39, s. 2. 
 
 (4) Insurance for benefit of future wife, — "When a contract of 
 lite insurance is efiected bj- an unmarried man for the benefit of 
 his future wife, or future wife and children, but the contract does 
 not designate by name, or otherwise clearly ascertain a specific 
 person as such intended wife, the contract not being within the 
 intent of subsection 5 or hereof, shall be construed as provided in 
 subsection 7, 53 V. c. 39. s. 3 (1). 
 
 (5) Where assured amnarried. or widower without issue. — When a 
 contract is efiected as in subsection 4, but at the maturity of the 
 contract, the fissured is still unmarried, or is a witlower without 
 issue, the insurance money shall fall into, and become part of the 
 assured. 53 V. c. 39 s. 3 (2). 
 
 (6) Where assaretl does not morry the specified hetieficiart/. — When 
 a contract of lite insurance is effected l»y an unmarried man, for 
 the benefit of his future wife, or future wife an<l children, 
 and the intended wife is designated by name, or is otherwise 
 clearly ascertained in the contract, but the intended marriage does 
 not take place, all (piestions arising on such contract shall be 
 determined as if this Act had not been passed. 53 V. c. 39, s 3(2). 
 
 (7) Where beneficiaries ascertained, but no apportionment made. — 
 Wliere two or more beneficiaries are desiginited or ascertained but 
 no apportionment as among them is nnule all the said beneficiaries 
 shall be held to share e(puilly in the same, and where it is stated in 
 the policy or declaration that the insurance is for the benefit of the 
 wife and cbiMren generally, or of the children generally, without 
 specifying tbe names of the children, the word " children" shall be 
 held to mean all the children issue of the assured, living at the 
 

 
 M 
 
 INSURANCE FOR BENEFIT OF WIFE AND CHILDREN, ETC. 
 
 307 
 
 maturity of the policy, whether by his then or any former wife, 
 and the wife to benefit by the policy shall be the wife living at the 
 maturity thereof. R.S.O. 1887, c. 136, s. 7 (1). 
 
 (8) Where apportionment made, bat beneficiary predeceases assured. 
 — If one or more of the preferred beneficiaries in whose favour the 
 apportionment has been made, die in the lifetime of the insured, 
 the assured may, by an instrument in writing, attached to or 
 endorsed on or referring to and identifying the policy of insurance, 
 by number or otherwise, declare that the share formerly apportion- 
 ed to the person so dying shall be for the benefit of such other 
 person or persons as he may name in that behalf, not being other 
 than one or more of the class of preferred beneficiaries, and 
 in default of any such declaration the share of the person so dying 
 shall be for the benefit of the survivor or survivors of such pre- 
 ferred beneficiaries in equal shares. R.S.O. 1887, c. 136, s. 8 ; 69 
 V. c. 45, s. 4 (2). 
 
 (9) AppUcdtion of section. — This section applies not only to any 
 future conti'act of insurance, and to any declaration made on or 
 n'latiiig to any such contract, but also to any contract of insurance 
 heretofore issued and declaration heretofore made. R.S.O. 1887, 
 ii. l:J6, sees. 1, 2, 5 ; 53 V. c. 39, sees. 2, 4, 5 ; 56 V. c. 32, sees. 8 
 (1), (2) ; 59 V. c. 45, s. 1. 
 
 160.— (1) Assured may vary benefit or beneficiary. — The assured 
 may, l»y an instrument in writing attached to or endorsed on, or 
 ulentifying the policy by its number or otherwise, vary a policy or 
 declaration or an apportionment previously made, so as to restrict 
 or extend, transferor limit, the benefits of the policy to the wife 
 alone or to the children, or to one or more of them, or to the 
 mother or any other preferred beneficiary of the assured, as a 
 lieneficiary or sole beneficiary, although the policy is expressed or 
 declared to be for the benefit of the wife and ehildren, or of the 
 wife alone, or of the child or children, or any of them, or for the 
 benefit of any one or more of the above mentioned persons for life 
 iind after his or their decease, tor the benefit of any one or more 
 of the survivors ; or, although a lu-ior declaration was so restricted ; 
 and he may also api)ortion the insurance money among the 
 persons so intended to be benefited ; and may, from time to time, 
 liy instrument in writing attached to or endorsed on the policy, or 
 referring to the same, alter the apportionment iis he deems 
 proper ; he may also, by his will make or alter the apportionment 
 
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 308 
 
 INSURANCE LAW OF CANADA. 
 
 of the insurance money ; and an apportionment made or altered by 
 his will, shall prevail over any other apportionment by will ; and 
 whatever the assured may, under this section, do by any instru- 
 ment in writing attached to or indorsed on or identifying the 
 policy or a particular policy or policies by number or otherwise. 
 59 V. c. 45, 8. 2 (1). 
 
 (2) " Apportion" " Apportionment,^^ meaning of. — " Apportion" 
 or "apportionment" in this section inchides and authorizes any 
 division, sub-division, re-appointment, or disposition of insurance 
 moneys or benefits among any of the class of persons who under 
 this or any amending Act are persons included in the class of pre- 
 ferred beneficiaries ; and also includes and authorizes any dispo- 
 sition of the said moneys or benefits such as partly or wholly to 
 divert the right or to enlarge or diminish the interest of a bene- 
 ficiary or beneficiaries acquired under any prior disposition of the 
 said moneys or benefits, or such as to substitute one beneficiary of 
 the said class for any other or others, or all others, or conversely. 
 59 V. c. 45, s. 2 (2). 
 
 Proviso, — Provided that the assured shall not by virtue of tlie 
 preceding sub-sections be authorized to divert the said moneys, or 
 benefits from all of the said class to a person not of the said class, 
 or to the assured himself, or to his estate ; or to divert the sai<l 
 insurance moneys or beiietits, or any part thereof, from the original 
 beneficiary when the policy expressly- states that the beneficiary 
 was a beneficiary for value. 59 V. e. 45, s. 2 (2). 
 
 (3) Where heneti<'iari/ under friendbj sociefi/ eontrad /.s^ leading a 
 criminal or immoral life. — Where it is proved to the satisfaction of 
 the executive of a registered friendly society that any beneficiary 
 under an insurance ecrtiticate or contract of the society is leading a 
 criminal or itumoral life, then, and notwithstanding anything con- 
 tained in this, or any other Act of the Province, it shall be com- 
 petent for the assured, with tlie consent of the said executive, to 
 declare either by endorsement on tlu' certiticato or contract or by 
 other writing, that all right, title and interest of the said bene- 
 ficiary in or to the benefit under the certiticate is forfeited and 
 ainuiUed ; and thereupon the said right, title and interest shall be 
 forfeited and anmilled accordingly ; and the assured by a like 
 writing may then or thereafter from time to time make a new 
 apj)ropriation in accordance with thelawlul rules of the society, and 
 may reap[)ropriate the benefit ; and the right of the assured, in this 
 

 _ -i; :; 
 
 •' '8 
 
 i '1 
 
 '51' 
 
 INSURANCE FOR BENEFIT OF WIPE AND CHILDREN, ETC. 
 
 309 
 
 behult' shall be in addition to his rights under this or other Acts of 
 the Trovince. 57 V. c. 48, s. 4(1). 
 
 (4) Case of other rontracts. — Where the contract is made by an 
 insurer other than as mentioned in sub-section 3, then upon 
 petition, and upon the like tacts as in the said sub-section proved 
 to the satisfaction of a Judge of the High Court the Judge may 
 make an order annulling the benefits and granting such other 
 relief as under the eircumstaiu'cs appears proper. 
 
 (5) Applicddon of section. — This section applies not only to any 
 future contract of insurance, and to any declaration made on or 
 relating to any sneh contract, but also to any contract heretofore 
 issued, and declaration heretofore made. 57 V. c. 48, s. 4 (2) ; 59 
 V. c. 45, s. 2 (3). 
 
 IGl. — (1) Insured mu;/ direct application of bonuses and profits. — 
 The assured may, in writing require the insurer to pay the bonuses 
 or profits, or portions thereof, accruing under the contract of 
 insurance, to the assured, or to apply the same in reduction of the 
 annual premiums payable by the assured, in such way as he may 
 direct ; or to add the said bonuses or profits as the assured directs ; 
 and according to the rates and rules established by the insurer ; 
 
 Proviso. — Provided always that the insurer shall not be obliged 
 to pay or apply such bonuses or profits in any other manner than 
 as lawfully stipulated in the contract or the application therefor. 
 This section applies to contracts made before the 4th day of March, 
 188), and to bonuses and profits then declared in respect of such 
 policies, as well as to policies thereafter nuide and hereafter to bo 
 made. R.S.O. 1887. c. 136, s. 18. 
 
 (2) Any contract of insurance may be surrendered or assigned, 
 
 (a) Where the policy is for the benefit of childreti only, and 
 the children surviving are all of tlie full age of twenty-one years, if 
 the assured and all such surviving children agree to so surrender 
 or assign ; or 
 
 (b) Where the policy is for the benefit of both a wife and 
 children, and the surviving children are all of the full age of 
 twenty-one years, if the assured, and his then wife (if any) and all 
 such surviving children agree to so surrender or assign ; or 
 
 (c) Where the policy is for the benefit of a wife oidy, or ota 
 wife and ciiildrei\, and there are no children living, if the assured 
 and his then wife agree to so surrenderor assign. R.S.O. 1887, c 
 130, s. 7 (2). 
 
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 810 
 
 INSURANCE LAW OF CANADA. 
 
 241- Statutory Enactments of British Columbia— Consoli* 
 dated Acts, 1888, 51 Vic, Chapter 80.— 
 
 36. It shall be lawful for any person to insure his life for the 
 whole term thereof, or for any definite period, for the benefit of 
 his wife or of his wife and children, or of his wife and some or one 
 of his children, or of his children only, or some or one of them, and 
 to apportion the amount of the insurance mone\-, as he may deem 
 proper, where the insurance is effected for the benefit of more than 
 one. 
 
 37. The said insurance may be effected either in the name of 
 the person whose life is insured, or in the name of his wife, or any 
 other pert-on (with the assent of such other person) as trustee ; and 
 the premium of any policy of insurance hereafter effected under 
 this Act, shall be payable during the whole of the said person's 
 life, or during any lesser period, by annual, half-yearly, quarterly 
 or monthly payments. 
 
 38. It shall be lawful for any person, by writing endorsed 
 upon or attached to any policy of insurance on his life, which may 
 have been effected and issued before the passing of this Act, to 
 declare that such jiolicy and insurance shall be for the benefit of 
 his wife, or of his wife and children, or of his wife or some one of 
 his children, or of his children only, or some or one of them, and 
 to apportion the amount of the insurance money as he may deem 
 proper, when the insurance is declared to be for the benefit of 
 more than one. 
 
 39. Nothing contained in this Act shall be held or construed 
 to restrict or interfere with the riu'ht of anv person to effect or 
 assign a policy for the benefit of his wife or children as at present 
 allowed by law, nor shall it affect any assignment of any existing 
 policy made before the passing of this Act, nor any action or pro- 
 ceeding pending, at the time of the passing of this Act, in any 
 court of law or equity. 
 
 40. Payment (if pre)inum.s. — Any person insuring with profits 
 may apply the same either in payment of premiums, or direct them 
 to be added to the insurance monev itavable at death. 
 
 41. It shall be lawful lor the person insured, from time to 
 time, to l>orrow on the security of the policy such sum as may be 
 necessary to keep the said policy in force ; and the sum so borrow- 
 ed shall be a first lien on the policy, notwithstanding any such 
 direction in favour of the wife and children, or any or either of 
 them. 
 
INSURANCE FOR BENEFIT OF WIFE AND CHILDREN, ETC. 
 
 311 
 
 42. If a person who has effected, or shall hereafter eflfect, an 
 insurfiuce in the terms of the said Act, shall find himself unahle to 
 continue to meet the premiums, it shall be lawful for him to sur- 
 render the policy to the company granting the same, and to accept 
 in lieu thereof a paid up policy for such sum as the premiums paid 
 would represent, payable at death, in the same manner as the 
 original policy ; and the said company may accept, and surrender, 
 and grant such paid up policy notwithstandii\g any sui-h decla- 
 ration or direction in favour of the wife and children, or any or 
 either of them, of the insured. 
 
 43. Disti'ibation of moneys insured,, — Upon the death of the 
 person whose lif(^ vr, insured, the insurance money due upon the 
 policy shall be payable according to the terms of the policy or of 
 the declaration as aforesaid, as the case may be, free from the 
 claims of any creditor or creditors whomsoevtir. 
 
 44. When no apportionment is made in any policy or decla- 
 ration as aforesaid, all parties interested in the said insurance shall 
 be held to share ecpuiU}' in the same, and when it is stated in 
 such policy or declaration that the insurance is for the benefit of the 
 wife and children generally, without specifying their names, then 
 the word "children" shall he held to mean all the children of the 
 person whose life is insured, living at the time of his death, (»r 
 whether by any other marriage or not. 
 
 45. In the event of some of the parties, for whose benefit the 
 said insurance has been effected, dying in the life time of the 
 insured, the moneys payable thereunder shall be payable to the 
 survivor or survivors of such parties, or in case they shall also die, 
 to the executors or administrators of the assured : but nothing in 
 this section contained shall be held to prevent the said assured 
 from assigning the policy for the benefit of any future wife or 
 children, or executing a declaration in their favour, or in favour of 
 some one of them, as herein mentioned. 
 
 The above sections are repealed by 58 Vic, c. 20, s. 30, B.C., 
 except as to ri(jhts arisin;/ uiule.r then}. 
 
 2'lla. Families Insurance Act, 1895, B. C. -58 Vic. Chap. 
 26, 1885, entitled: "An Act to secure to wives and children 
 the benefit of life insurance."- 
 
 1. This Act may be cited as the "The Families Insurance 
 
 Act, 1896." 
 
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 312 
 
 INSURANCE LAW OF CANADA. 
 
 2. In this Act unless inconsistent with the context, — 
 {a.) "• Contract of insurance." 
 
 " Policy of insurance." 
 " Policy." 
 Shall include any certificate or contract hereinafter mentioned 
 or ill any way relating to life insurance. 
 
 (6.) "Maturity of the policy," or " maturity of the contract" 
 shall mean the happening of the event or the expiration of the 
 term at which the benefit under the policy or contract accrues due. 
 
 3. The provisions of this Act shall apply to every lawful con- 
 tract of insurance in writing now in force or hereafter eftected, 
 which is based on the expectation of human life, and shall include 
 life insurance on the endowment plan as well as every other, and 
 shall also extend to the said contracts ot insurance where any 
 declaration endorsed thereon or attached thereto, though made 
 before the date of the passage of this Act, would have been or be 
 within the operation and provisions of this Act, if tlie same had 
 been made subseipient to the said date, and shall extend and apply 
 to membership beneficiary and other certificates and contracts 
 relating to life insurance issued or entered into by any society or 
 association of persons for any fraternal, provident, benevolent, 
 industrial or religious purposes, among the purposes of which is the 
 insurance of the lives of the members thereof exclusively, or by 
 any association for the purpose of life insurance formed in connec- 
 tion with any such society or organization, and from its members, 
 including oe»"tificates or contracts heretofore issued t)r entered into. 
 
 4. It is hereby declared to have been lawful for any person on 
 or after the •21st day of February, 1873, to endorse upon or attach 
 to any policy of insurance on his life effected and issued before that 
 day, whether the [tolii-y was issued before or after marriage, a 
 written declaration that tlie insurance was for the benefit of his 
 wife or of his Avife and children, or of his wife and some or one of 
 his children only, or of some one of them, and to apportion the 
 amount of the insurance money as he deemed proper when the 
 insurance was declared to be for the benefit of more than one. 
 
 5. Any person may insure his life for the whole term thereof, 
 or for any definite period, for the benefit of his wife, or of his wife 
 and children, or of his wife and some or one of his children, or of 
 his children only, or of some or one of them, and, where the 
 insurance is effected for the benefit of more than one, he may 
 
INSURANCE FOR BENEFIT OF WIFE AND CHILDREN, ETC. 
 
 313 
 
 apportion the amount of the insurance money, as he may deem 
 proper. 
 
 6. Tlie insurance may he effected either in the name of the 
 person whose life is insured or in the name of his wife, or any 
 other person (with the assent of such other person) as trustee. 
 
 7. In case a policy of insurance effected hy a man on his life is 
 expressed upon the face of it to he tor the henetit of his wife, or 
 his wife and children, or any of them, or in case he has heretofore 
 endorsed, or may hereafter endorse, or by any writinu^ identifying 
 the policy by its number or otherwise, has made, or may hereafter 
 make, a declaration that the policy is for the benetit of his wife, or 
 of his wife and children, or any of them, such policy shall enure, 
 and be deemed a trust for the benefit of his wife for her separate 
 use, and of his children, or any of them, according to the intent so 
 expressed or declared, and so long as any object of the trust 
 remains, the money payable under the policy shall not be subject 
 to the control ot the husband or his creditors, or form [)art of his 
 estate when tiie sum secured by the policy becomes payable ; but 
 this shall not be held to interfere with any pledge of the policy 
 to any person prior to such declaration. In the case of a policy of 
 written contract of life insurance effected before marriage, a decla- 
 ration under this section shall be, and shall be deemed to have been 
 as valid and eftectual as if such policy or contract had been ettected 
 after marriage, but nothing herein contained shall affect any 
 action or proceeding now pending. 
 
 8. (1.) The insured may by an instrument in writing attached 
 to or endorsed on, or identifying the policy by its number or other- 
 wise, vary a policy or a declaration or an apportionment previously 
 made so as to restrict or extend, transfer, or limit the benefits ot 
 the policy to the wife alone, or the chililren, or to one or more of 
 them, as beneficiaries, or a beneficiary, or sole beneficiary, although 
 the policy is expressed or declared to be for the benefit of the wife 
 for life, and of the children after her death, or for the benefit of 
 the wifi^, and in case of her death during the life of the insured, 
 then for the child or children or any of them, or for the benefit of 
 any one or more of the above mentioned persons for life, and after 
 his or their decease for the l>enefit of any one or more of the 
 survivors, or although a prior declaration was so restricted ; and 
 he may also apportion the insurance money among the persons 
 intended to be benefited, and may from time to time by an instru- 
 
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 314 
 
 INSURANCE LAW OF CANADA. 
 
 mont ill writing attached to or endorsed on the policy, or referring 
 to the same, alter the apportionment as he deems proper ; he may 
 also, hy his will, make or alter the afiportionment of the insurance 
 money ; and an apportionment made hy his will shall prevail over 
 any other made before the date of the will, except so far as such 
 other apportionment has been aeted on before notice of the 
 apportionment by the will. 
 
 9. (1.) Where no apportionment is made, all persons entitled 
 to be benefited by the insurance shall be held to share equally in 
 the same ; and where it is stated in the policy or declaration that 
 the insuranet' is for the benefit of the wife and children generally, 
 or of the children generally, without specifying the names of the 
 children, the word "children" shall be held to mean all the 
 children of the insured living at the maturity of the policy, whethei 
 by his then or any former wife, and the wife to benefit by the 
 policy shall be the wife living iit the maturity thereof. 
 
 (2.) Any such policy may he surrendered or assigned, — 
 {(I.) When the policy is for the benefit of the children only, and 
 the children surviving are all of the full age of twenty-one years, 
 if the person insured and all such surviving children agree to so 
 surrender or assign ; or 
 
 (/*.) Where the policy is for the benefit of both a wife and 
 children, and the surviving children are all of the full age of 
 twenty-one years, if the person insured, and his then wife (if any) 
 and all such surviving children agree to so surrender or assign ; or 
 {('.) Where the policy is for the benefit of a wife only, or of a 
 wife and children, and there are no children living, if the person 
 insured and his then wife agree to so surrender or assign. 
 
 10. Where an apportionment as in sections 4, 5 and 8 pro- 
 vided for, has been made, if one or more of the persons in whose 
 favour the apportionment has been made die in tiie lifetime of the 
 insured, the insured mav bv an instrument in writinji:, attached to 
 or endorsed on or otherwise referring to and identifying the policy 
 of insurance, de(;lare that the share formerh' apportioned to the per- 
 son so dying shall be for the benefit of such other person or persons 
 as he may name in that belialf, not being other than the wife and 
 children of the insured or one or more of them ; and in default of any 
 such declaration the share of the person so dying shall be the pro- 
 perty of the insured and may be dealt with and disposed of by him 
 as he may see fit, and shall at his death form part of his estate. 
 
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 li 
 
 INSURANCK FOR UENEFIT OF WIFE AND CHILDREN, ETC. 
 
 815 
 
 11. WlitTo no apjtortioiiment, as in sections 4, 5 and 8 pro- 
 vided for, has been made, if one or more of tlie persons entitled to 
 the benefit of insuraiu-e die in the lifetime of the insured, and no 
 apportionment is .subsequently made by the insured, the insurance 
 shall be tor the benefit of the survivor, or the survivors of such 
 persons in equal shares if more than one ; and if all the persons so 
 entitled die in the lifetime ot the insured, the policy and the 
 insurance money shall form part of the estate of the insured ; or 
 after the death of all the persons entitled to such benefit, the 
 insured may by an instrument executed as aforesaid make a 
 declaration that the policy shall be fi)r the benefit of his then or 
 any future wife or children, or some or one of them. 
 
 12. (1). When a contract of life insurance is effected by an 
 unmarried man or a widower for the benefit of his future wife, or 
 future wife and children, but the contract does not designate by 
 names or otherwise clearly ascertain a specific person as such 
 inteiuled wife, the contract (not beiui;; within the intent of sub- 
 sections (2) and (3) of this section) shall be construed according to 
 the provisions of section 9 of this Act. 
 
 (2). When a contract of life insurance is eftected as in .-ul)- 
 section 1 of this section, but at the maturity of the contract the 
 insured is still unmnr/ied, or is a widower without issue, the 
 insurance money shall I'all into and become part of tlic estate of the 
 insured. 
 
 (3). "When a contract of life insurance is effected by an un- 
 married man or widower for the benefit of his future wife, or 
 future wife and children, and the intended wife is designated by 
 name, or is otherwise clearly ascertained in the contract of life 
 insurance, but the intended marriage does not take place, all 
 questions arising on sue' contract shall be determined as if this 
 Act had not been passed. 
 
 13. (1.) A policy or written contract of life insurance effected 
 liy any woman on her own life, or on the life of her husband, and 
 expressed to be for the benefit of her husband and children, or of 
 r' lier husltand or children or any of them, shall be deemed a trust 
 in favour of the oltjects therein named, and the moneys payable 
 under such policy shall not, so long as any object of trust remains 
 unperfi)rmed. form part of the estate of the deceased, or be subject 
 to her debts. 
 
 (2.) Whatever under tliie Act a man ma^' lawfully do. in 
 
 
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 INSURANCK LAW OF CANADA. 
 
 rospec't of iiisuranoo effected upon his life, may also, under the 
 like circuiiistancos, he done hy a woman in respect of insurance 
 effected ujion her life, or effected hy heron the life of her hushand, 
 and the like rules of construction shall prevail. 
 
 14. (1.) When insurance money hecomes due and payahle it 
 shall he paid according to the terms of the policy or of any decla- 
 ration or instrument as aforesaid, as the case may he, free from the 
 claims of any creditors of the insured, except as herein provided. 
 
 (2.) A\'"licre the insurance money or part thereof is for the 
 hcneiit, in Avliole or in part, of the children of the insured, and the 
 children are mentioned as a class and not hy their individual 
 names, the money shall not he payahle to the children until reason- 
 ahle proof is furnished to the company of the numher, names, and 
 age of the children entitled. 
 
 15. The insured mav, hv the itolicy or hy his will or hv anv 
 wi'iting under his hand. api)oint a trustee or trustees of the money 
 payahle undi-r the policy, and may from time to time revoke such 
 appointment in like manner, and appoint a new trustee or new 
 trustees, ami make provision for tiie appointment of a new trustee 
 or new trustees, and for the investment of the lunneys [layahle 
 under the[iolicy. Payment made to such trustee or trustees shall 
 discharge the comi>any. 
 
 10. (I.) If no trustee is named in the iH)licy, or ai>pointed as 
 mentioned in section 15, to receive the shares to which intiints are 
 entitled, their shares may )>e paiil to the executors of the last will 
 and testament of the insured, or to a guardian of the intimts duly 
 appointed hy the Supreme Court (»f this province, or hy any court 
 having jurisdiction in that heiialf, or to a trustei' appointed hy 
 the court upon the application of the wife, or of the infants or 
 their guardian ; and su<'h payment shall he a good discharge to 
 the insurance company. 
 
 (:.'.) Where it ajipears uiion the letters of the guardianshiit or 
 other like document issued or to l)e issueil, hy a court heyond the 
 jurisdietion of the province, or hy a certilicate of the judge under 
 the si'al ofsiieh court, that it has heen shown to the satisfaction of 
 such court that the deceased at his death was domiciled or resident 
 within it-jurisdiction, and where security to the satisfaction of the 
 court has heen given hy the guardian orother like oflieer appointed 
 by the said letters or documents, then the Supri'me Court, upon 
 pplication for the ap[Kiintment of the said guardian or like olHcer 
 
I- iH 
 
 INSURANCE FOR BENEFIT OF WIFE AND CHILDREN, ETC. 
 
 317 
 
 as trustee under this section, may dispense with the giving ,ot 
 security, provided it has been also shown that the infants reside 
 within the jurisdiction of the foreign court, and tliat the proposed 
 trustee is a iit and proper person, and that the security has, in 
 accordance with the practice of auch foreign court, been given in 
 respect ^'and for the due application and account of the money 
 ]iayaV)lc under the policy. 
 
 17. Any trustee named, as provided for in the last preceding 
 two sections, and any executor or guardian, may invest the money 
 received in government securities or municipal debentures, or in 
 mortgages of real estate, or in any other manner authorized by the 
 will of the insure<l, or by the law in force tor the time being 
 relating to the iiwestment of trust funds, and may from time to 
 time alter, vary and transpose the investments, and apply all or 
 part ot tlie annual income asising from the share or presumptive 
 share of each of the children, in or towards liis or her maintenance 
 and education, in such manner as the trustee, executor, or guardian 
 thiid-:s fit, and may also advance to and for any of the t'hildren, 
 notwithstanding his or her minority, the whole or any part of tlie 
 share of the child of or in the money, for the advancement or 
 preferment in the worhl, or on the marriage of such child. 
 
 18. A guardian appointed under section 16 shall give security 
 to the satisfaction oi" the court or judge for the faithful perlorm- 
 ance of his <luty as guardian, and for the proper application of tlie 
 money which he nniy receive. 
 
 10. (1.) If there is no trustee, executor, or gnanlian comp(>tent 
 to receive tbe share of any infant in the insurance nion^'y, and the 
 insurance comitany a<lmit the claim, or any \>i\vt tliereof, the com- 
 pany at any time after the expiration ot'two months from tlie (hit(> 
 of tlieii- admission of tbe ehiim or part thereof, may ol)tain an 
 order from the Siiprenu' Court tor the payment of the sliare of the 
 infant into court ; and in siicli ease tbe costs of tbe applii'ation sbidl 
 lie paid out of tbe sliare (unless tbe eoui'l otherwise dii'ects), iuiii 
 tbe residue sball be paid into court pursuant to tbe order; and 
 such payment shall be a sutlicieiit discliarge to tbe eonipany for tbe 
 money paid ; and tbe money shall l)c dealt with as tbe court may 
 direct. 
 
 (w.) If tbe eomiiany does not within four months from the 
 time tbe claim is admitted, either pay tbe sanu' to some [lerson 
 eompetent to receive tbe money under this Act, or pay tbe 
 
 
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 318 
 
 INSURANCE LAW OF CANADA. 
 
 i 
 
 same into the Supreme Court, the said court may upon appli- 
 cation made by some one competent to receive the said money, 
 or by some other person, on behalf of the infant, order the in- 
 surance money, or any part thereof, to be paid to any trustee, 
 executor, or guardian competent to receive the same, or to be paid 
 into court, to be dealt with as the court may direct, and any such 
 pa^'ment shall be a good discharge to the company. 
 
 (3.) The court maj' order the costs of the application, and any 
 costs incidental to establishing the authority of the party applying 
 for the order, to be paid out of such moneys, or by the company, 
 or otherwise, as may seem just, and the court may also order the 
 costs of, and incidental to, obtaining out of court moneys volun- 
 tarily paid in by a company, to be paid out of such moneys. 
 
 20. If a person who has heretofore effected, or who hereafter 
 effects, an insurance for the purposes contemplated by this Act, 
 whether the purpose appears by the terms of the policy or by 
 endorsement thereon, or by an instrument referring to, and identi- 
 fying the policy, finds himself unable to continue to meet the 
 premiums he may surrender the policy to the company, ami accept 
 in lieu thereof a paid-up policy for the benefit of the object or 
 objects of the surrendered policy, and subject to be dealt with in 
 like manner as the surrendered poliey for such sum as the 
 premiums paid would represent, payable at death or the endow- 
 ment age, (or otherwise as the case may be) in the same manner as 
 the money insured by that (»riginal policy, if not surrendered, 
 would have been payable, and the com2)any may accept the 
 surrender and grant the paid-up policy notwithstanding any 
 declaration or direction in favour of the wife, husband or children, 
 or any or either of them. 
 
 21. The i)ersoii insured may from time to time borrow from 
 the company insuring, or from any other company or person, on 
 the security of the policy, such sums as may be necessary and shall 
 be applied to keep the policy in force, and on such terms and i-on- 
 (litions as may be agreed on ; and the sums so borrowed, together 
 with such lawful interest thereon as may be agreed, shall so long as 
 the policy remains in force, be a first lien on the policy, and on all 
 moneys payable thereunder, notwithstanding any declaration or 
 direction in favour of the wife, husband, or eliildren, or any or either 
 of them. 
 
 22. Any person insured under the provisions of this Act nuiy, 
 
''•|; 
 
 m 
 
 
 INSURANCE FOR BENEFIT OF WIFE AND CHILDREN, ETC. 
 
 319 
 
 ill writing, require the insurance company to pay the bonuses or 
 profits accruing under the policy, or portions of tlie same, to the 
 insured, or to apply the same in reduction of the annual premiums 
 payable by the insured, in such way, as he may direct, or to add 
 the said bonuses or profits to the policy ; and the company shall 
 pay or apply such bonuses or profits as the insured directs, and 
 according to the rates and rules established by the company ; 
 Provided, always, that the company shall not be obliged to pay or 
 apply such bonuses or profits in any other manner than as stipu- 
 lated on the policy or the application therefor. 
 
 23. In the case ot several actions being brought for insurance 
 money, the court is to consolidate or otherwise deal therewith so 
 that there shall be but one action for and in respect of the shares 
 of all the persons entitled under the policy. If an action is brought 
 for the share of one or more infants entitled, all the other infants 
 entitled, or the trustees, executors, or guardians entitled to receive 
 payment of the shares of such other infants, shall be made partii's 
 to the action, and the rights of all the infains shall be dealt with 
 and determined in one action. The persons entitled to receive the 
 shares of the infants, nuxy join with any adult persons claiming 
 shares in the policy. In all actions where several i)ersons are 
 interested in the money, the court or judge shall apportion among 
 the parties entitled any sum directed to be paid, and shall give all 
 necessary directions and relief. 
 
 24. The provisions of sections 16, 17, 18, 19, and 23 of this 
 Act shall extend, and are hereby declared to have been intended to 
 extend, and apply to cases where the insured died before the 
 passing of this Act, as well as to cases arising subsequent thereto. 
 
 25. No declaration or apportionment afiecting the insurance 
 mone}', or any portion thereof, nor any a[)iiointment or revocation 
 of a trustee made after the passing of this Act, shall l»c of any 
 force or effect as resi)ecta the company until the instrument, or a 
 duplicate or copy thereof, is deposited with the company. W^herc 
 a declaration or endorsation has been heretofi)re nuide, and notici- 
 lias not been given, the conqiany may, until they receive notice 
 thereof, deal with the insured or his executors, administrators, or 
 assigns, in respect of the policy, in the same ifanner and with the 
 like efiect as if the declaration or endorsation had not been nuide. 
 
 26. If the policy was efiected and premiums [laid by the 
 insured with intent to defraud his creditors, the creilitors shall l»e 
 
 
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 ii: 
 
820 
 
 INSURANCE LAW OP CANADA. 
 
 entitled to receive out of the sum secured an amount equal to the 
 premiums so paid, without interest. 
 
 27. Nothing contained in this Act shall be held or construed 
 to restrict or interfere with the right of any person to eifect or 
 assign a policy for the benefit ot the wife, husband, or children, or 
 some or one of them, in any other mode allowed by law. 
 
 28. "Where all the persons entitled to be benefited, whether 
 by original insurance, by written declaration, or by instrument of 
 variation or apportionment, under any policy are of full age, they 
 and the person insured may surrender the policy, or assign the 
 same, either absolutely or by way of security. 
 
 29. Where any policy of insurance, or the declaration endorsed 
 upon, or attached to, or identifying by its number or otherwise, 
 any policy of insurance to which this Act applies, whether such 
 declaration has heretofore been or shall hereafter be made, pro- 
 vides that the policy shall be for the benefit of a person, and in the 
 event of the death of such person for the benefit of another person, 
 such first mentioned person shall if living, be deemed for the 
 purposes of section 28 of this Act, the person entitled to be bene- 
 fited under such policy. 
 
 30. Sections 36. 37, 38, 39, 40, 41, 42, 43, 44, and 45 of the 
 " Married Women's Property Act," are hereby repealed, but such 
 repeal shall not afiect any rights arising under such repealed 
 sections, or any of them. 
 
 242. Revised Statutes of Nova Scotia, 1884, Chap. 84. - 
 
 I. This chapter may be cited as the " Married Women's 
 Property Act, 1884." 
 
 II. A married woman, in her own name or that of a trustee 
 for her, may insure for her sole benefit or for the use or benefit of 
 her children, or of herself ar.d her chihlren, her own life, or, with 
 his consent, the life of her husliand, for luiy definite jieriod, or 
 for the term of her or his luitural life ; and tlie amount payable 
 under such insurance shall be receival>le for the sole and separate 
 use of sucli married woman or her children, or herself and her 
 cliildren, as the ease may be, free from tlie claims of the repre- 
 sentatives of her husband, or of any of his creditors. 
 
 12. A policy of insurance ett'ected by any married man on his 
 own life and expressed upon the face of it to l)e for the benefit of 
 liis wife, or of his wife and children, or any ot them, shall enure 
 and be deemed a trust for the benefit of his wife for her separate 
 
INSURANCE FOR BENEFIT OF WIFE AND CHILDREN, ETC. 
 
 321 
 
 m- 
 
 use, or for his wite and children, or iiny of tliem, according to the 
 interest so expressed, and shall not, so long as any object of the 
 trust remains, be subject to the control of her liusband, or to 
 his creditors, or form part of his estate. 
 
 When the sum secured by the policy, becomes payable, or at 
 any time previously, a trustee thereof may be appointed by a judge, 
 and the receipt of such trustee shall be a good discharge to the 
 insurance office, if it shall be proved that the policy was eftected 
 and premiums paid by the husband 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. 
 
 213. Revised Statutes of Manitoba, 1891, 55 Vie-, Chap. 
 88— An Act respecting life assurance for the benefit of wives 
 and children.— 
 
 1. This Act may be cited as "Tlie Life Assuraiu^e Act." 
 
 2. It shall be lawful for any husband to insure his life for the 
 benetit of his wife, or for the benefit of his wife and their ihildren 
 generally, or for the benefit of his wife ami his, her and their 
 children generally, or for the benefit of his wife and his or her 
 children generally, or for the benefit of his wife and one or more 
 of his or of her or of their children ; and for any fiitlicr or any 
 mother to insure his or her life for the beaertt of his or iier child- 
 ren, or of one or more of them. 
 
 8. Such insurance may be effected oitlicr for the whole term 
 of the life ot' the persoi\ whose life is in-uircd or for any definite 
 period ; and the sum insured nniy be made [layalile niion the 
 ilcath of such [)i^rson, cu" upon his or her surviving a specified 
 period not less tlian ten yeiirs. 
 
 4. 'Pile premium for such insurance may lie [tayable during- 
 the whole life ot the [ku'soii whose life is insured, or during any 
 pcriotl not less than ten years, and the same may ln> [laid hy yearly, 
 half-yearly, <|uartcrly or monthly payments. 
 
 5. In casi' a policy of insurance etlected by a married luaii (ui 
 his lile is expressi'd upon the iiice of it, to lie h>r the benefit of his 
 witi', or of ills wifi' and children, or any of them, or in case he has 
 lierctofiU'c emlorsed or miiv hereiifter endorse, or 1)V anv writintf 
 idciitifvinu: the iiolicv bv its mimlier or otherwise, or hy will has 
 made or may hereafter make a declaration that the policy is for 
 the benefit of his wife or of his wife and children or any of them, 
 ,-uch policy shall enure ami be deemed a tiMist Ibr tlu' heiiejit of 
 
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322 
 
 INSURANCE LAW OF CANADA. 
 
 his wife for her separate use, and of his children or any of them, 
 according to the intent so expressed or dechired, and so long as 
 any object of the trust remains the money payable under the policy 
 shall not be subject to the control of the husband or his creditors 
 or form i)art of his estate, when the sum secured hy the policy 
 becomes payal)le : but this shall not be held to interfere with any 
 pledge of the jtolicy to any person prior to such declaration. 
 
 (2). The insured may by an instrument in writing attached to 
 or endorsed on or identifying the [Kjlicy by its number or other- 
 wise vary a policy or a declaration, or an appropriation previously 
 made, so as to restrict or extend, transfer or limit the benefits of 
 the policy to the wife alone or the children, or to one or more ot 
 them, although the policy is expressed or declared to be ibr the 
 benefit of the wife and children or of the wife alone, or for the 
 child or children alone, or for the benefit of the wife tor life, and 
 of the children after her death, or for tiie benefit of tlie wife, and 
 in case of her death during the life of the insured, then for the 
 child or children or any of them or althougli a prior declaration 
 was so restricted ; and he may also approiiriate the insurance 
 money among the jjcrsons intended to be benefited, and may from 
 time to time by an instrument in writing attached to or endorsed 
 on the policy or referring to the same alter the apiiropriation as he 
 deems proper ; he may also by his will make or alter the ajtpro- 
 [iriation of the insurance' money ; and an appropriation made by 
 his will shall prevail over any other made liefore the date of the 
 will, except so far as such other apjiropriation has been acted on 
 before notice of the appropriation by the will. 
 
 (;5). Where an appro[iriation as in this section provided for 
 has been ma<lc, if one or more of the [lersons in whose favour the 
 appro[iriation has been made die iii tli-j lifetime of tlu^ insured, the 
 insured may, by an instrument in writing attached to or endorsed 
 on, or otherwise i-efei'ring to and ideiititying the policy of insur- 
 ance, declare that the share formerly apiiropriated to the [)erson 
 so dying shall be for the benefit of such other person or [lersons as 
 he nuiy name in that behalf not being otiier than the wife and 
 children of the insured or one or more of them ; and in default ot 
 any sut'h dec^laration the share of the person so dying shall be the 
 [iroperly (jf the insured, and may be di'alt with and disposed of by 
 him as he may see fit, and shall at his death fiirm part of his 
 estate. 
 
fn 
 
 INSURANCE FOR BENEFIT OF WIFE AND CHILDREN, ETC. 
 
 823 
 
 Or 
 
 110 
 
 111 
 
 (4), The provisions of sections 10 and 11 of this Act shall 
 only a|)pl\' when there is no apiiropriation under siil)-3eotion 3 of 
 this section. (As substituted l»y 58 Vic. c. 26, s. 3 (Man.), 1895). 
 
 0. Sa<-h appropriation sfuill he made by a declaration in writing 
 endorsed upon, or referriw] and attached to, the policy appropriated ; 
 a duplicate of the derlaratian must l)e filed with the company ndiioh 
 issued the policy; and a note of the Jiliny of such duplicate must Ije 
 endorsed by the coinp my on the pdicy or on the declaration. (Repealed 
 hy 58 Vie. i-. 20, s. 8 (Man.), 1895). 
 
 7. Such insurance may be effected and such declaration of 
 appropriation ni;iy l)e made i»y a married woman without the 
 authorization of her husl)and. 
 
 8. When the insurance is eftected or the appropriation is 
 made for the benefit of more than one person, the husband, father 
 or motlier whose life is insured may, in the application and policy, 
 or in the declaration or a[(propriation, apportion the amount of 
 the insurance mone}^ as he or she may deem jiroper. 
 
 9. Where no apportionment is made the parties interested 
 sliall have the insurance money as toHows : If for tlie ])enortt of a 
 wife and the chihlren, issue of her marriage with the [icrson wliose 
 life is insured, oiie-tliird for hrr and the other two-thirds for their 
 chihlren, wlio will sub-divide eijually ; if for the bonetit of a wife 
 ami her children, one-tiiird for the wife ami the other two-thinls 
 for the children, whether issue of the same or of ditterent mar- 
 riages, who will sub-divide e(]ually; it tor the IkeiicHt of a wife 
 and her husband's children, oii"-rhird tor the wife and the other 
 two-thirds tor the children of her husband, whether issue of the 
 same or of different marriages, wlio will sub-divide eipially ; it for 
 the benefit of a wife and her hu^buiid's and her own children, one- 
 third for tlie wife and the other two-thirds for his children and for 
 her I'hildren, whi'ther issue of their or of other marriages, such 
 children sub-dividing ecjually ; if for the benefit of a wife and one 
 or more children si)ecitied by name, one-third for the wife and the 
 other two-thirds for such child or I'or such ehildreu. who will sub- 
 divide e((ually ; if tor the benefit of children only generally, 
 ('i[Ually between tlie children of the parent whose life was insured, 
 wliether issue of the same or ditlerent marriage's ; and if tor the 
 lii'iietit of several children specified by name, eipniUy between 
 them. 
 
 10. AVIien any child, specified by name or included generally, 
 
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 324 
 
 INSURANCE LAW OF CANADA. 
 
 predeceases the person whose life is insured, the descendants of 
 such predeceased chihl will take his or her share by representation. 
 
 11. When the insurance is effected or the appropriation is 
 made, without apportionment, in favour of several children, whether 
 it be jointly with a wife or in favour of children alone, if any of 
 such children predecease the person whose life is insured, Avithout 
 issue, accretion tfikes place in favour of the surviving children. 
 When the insurance effected or appropriation made without appor- 
 tionment is in favour of a wife and a child or children, if the wife 
 predeceases her husband, accretion takes place in favour of the 
 child or children ; and if the child or all the children predecease 
 the husband, accretion takes place in favour of the wife. 
 
 12. It shall nevertheless he lawful for any person irho has 
 effected an insurance, or irho has appropriated a jwUci/ of insurance, 
 for the henejit of a wife, or a wife and child or children, or of a child 
 
 or children only, as hereinbefore provided, at any time and from time 
 to time thereafter to revoke the benefit conferred by such insurance or 
 appropriation, either as to one or more or as to all (he 'persoi^s intended 
 to be benefited ; and to declare in the revocation that the jmlicy shall be 
 fur the beneft only of the persons not excluded by the rerocatinn, or for 
 the benefit of such pcrso)is not excluded jointly >rith another or others 
 7iot oriyinally named or benefited. Such other or others jnusf be a per- 
 son or persons for whose benefit an insurance may be effected or appro- 
 priated under tJic proinsions of this Act. 
 
 13. Either vuch rerocati<m may be made iiy av instrument to be 
 attached, to the poUey and of ivliich a duplicate must be filed with tjie 
 company which issued the policy, and a note of tlie fliny of irhich 
 duplicate must be endorsed by the company on the policy or an the 
 instrument retained, or such revocation may be made by will, of which, 
 after the party's death, an authentic copy must tie filed with the com- 
 2>any ; and in dt fault of such duplicate or such copy lieiuy filed, the 
 company irill Iw validly discliaryed by jmyiny the iosurance money 
 accordiny to the terms and directions of the policy, or of the declaration, 
 or of a previous revocation. (Repealed by r)8 Vic. c. 26, s. 4 (Man.), 
 1895, and the following substituted : 12. Any revocation of any 
 appropriation under this Act may l)o effectually made in the same 
 manner as it is hereinafter provided that an appropriation may be 
 made. 
 
 14. The bcnetit of the policy shall revert to the insured when 
 the child for whose benefit it was effected or ap[»ropriated, or the 
 
INSURANCE FOR BENEFIT OF WIFE AND CHILDREN, ETC. 
 
 325 
 
 !' 
 
 surviving child for whose benefit solely it exists, dies without 
 issue before him or her ; or when the wife for whose benefit solely 
 it exists, whether by the policy, iipproi)riation or revocation or by 
 accretion, predeceases her husband with or without issue ; and the 
 benefit of any share in an apportionment shall likewise revert to 
 the insured when the child to whom it was apportione<l dies with- 
 out issue before the insured parent, or when the wife to whom it 
 was apportioned predeceases her husband with or without issu(>. 
 
 15. When a policy reverts to the insured in whole or for a 
 share or shares, the insured may deal with such policy, or share or 
 shares, as if the insurance had been efiected and been always held 
 for his or her own benefit. 
 
 16. The insurance effected or appropriated tor the benefit of a 
 wife, or of a wife and child or children, or of a child or children 
 only, may be made payable by the ap[)lication or policy, or by the 
 declaration of appropriation, or by revocation, either to trustees, 
 ov to the party or parties benefited. 
 
 17. When no trustee or trustees is or are appointed by the 
 ajiplication and policy, or by the declaration of appropriation, or 
 Ity a revocation, it shall be lawful for any person whose life is 
 insured, by an instrument to be attached to the policy, and of 
 which a duplicate must bv. filed with the company which issueil 
 the policy, and such filing be noted by the company upon the 
 instrument retained, or by will, of which after the testator's death 
 an authentic copy must be filed with the company, to appoint a 
 person or persons as trustee or trustees for thf party or parties 
 benefited or for any of them. 
 
 18. When the person whose life is iusiireil sliall die without hav- 
 ing appointed a trustee or trustees for any minor child or children 
 benefited, or for any person or persons benefited otherwise iticap- 
 al)le of exercising his, her or their rights, the payment of the insur- 
 ance money coming to such minor child or children, or person or 
 persons otherwise incapable of exercising his, her or their rights, 
 shall be nuidc to the executor or executors of such insured person, 
 who shall be the trustee or trustees of such minor child or children, 
 or person or [lersons otherwise incapable of exercising his, her or 
 their riifhts. In case of no trustee or trustees or of the executor or 
 executors refusing to accept, or in case the person whose life is in- 
 sured should die intestate, the payment shall be made to the 
 guardian of such minor child or children, or the curator of such 
 
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 1 V 
 
 826 
 
 INSURANCE LAW OP CANADA. 
 
 persons otherwise incapable of exorcising liis, her or their rights. 
 In case the trnstee or trustees of a person or persons in the exorcise 
 of his, her or their rights shouhl refuse to accept, the payment 
 shall he made to such benefited person or persons, himself, herself 
 or themselves. 
 
 19. The payment made to any benefited person or persons not 
 incapable of exercising his, her or their rights, to any trustee or 
 trustees, to any executor or executors, or to any guardian or curator, 
 shall be a valid and sutficient discharge to the insurance company 
 for the insurance money so paid ; and the company shall not be 
 bound to see to the investment of the money, or be liable for the 
 subse([uent misapplicarion thereof by any trustee or trustees, 
 executor or executors, guardian or curator. 
 
 20. The trustee or trustees shall [lay over the insurance money 
 received for persons in the exercise ot their rights to such persons 
 at once, if no conditions have been imposed l)y the insure<l in and 
 by the policy itself, by the declaration of appropriation or by the 
 terms contained in a deed of revocation ; if conditions have been 
 imposed, the trustee or trustees shall carry out the trust and ad- 
 minister and [lay over the insurance money in accordance with its 
 provisions. The insurance money received by any trustee or 
 trustees, executor or executors, guardian or curator for persons in 
 minority or otherwise incapable of exercising their rights, shall be 
 invested by the party or parties receiving it in Dominion or Pro- 
 vincial stock or debentures, or in municipal stock or debentures, or 
 on first [)rivilege or mortgage upon real estate, with power, how- 
 ever, to such trustee or trustees, executor or executors, guardian or 
 curator, from time to time, to altei*, vary and transpose the invest- 
 ments held, within the authority given herein, according to the 
 nature of the securities or investments. 
 
 21. All or any part of the annual income arising from the in- 
 vestments of the insurance money may be applied towards the 
 maintenance and education of such minor child or children, or 
 towards the maintenance of such person or persons otherwise in- 
 capable of exorcising his, her or their rights, as the trustee or 
 trustees, executor or executors, guardian or curator, may think fit ; 
 and when all the said annual income is not so applied the surplus 
 shall be capitalizetl and invested in the same manner as the insur- 
 ance money received. 
 
 22. The investment shall be transferred by the trustee or 
 
INSURANCE FOR BENEFIT OF WIFE AND CHILDREN, ETC. 
 
 327 
 
 triiBteoH, executor or executors, ffuardiau or cunitor. in tlie case ol' 
 a minor, to himself or herself when he or she attains maturity 
 unless eonditions have been imposed, in whieh ease the investment 
 shall only be transferred in accordance with such eonditions. and, 
 in the case of a per.son otherwise incapable of exercising his or her 
 rights, to himself or herself when he or she regains their exercise, 
 or to his or hor heirs when he or she dies without regaining their 
 exercise, unless conditions have been imposed, in which case they 
 shall be carried out. It shall, nevertheless, be lawful, should the 
 trustee or trustees, executor or executors, guardian or curator think 
 fit, to advance the insurance mone_\,or to dispose of the invest- 
 ment and advance the proceeds, to any minor child during his or 
 her minority, for the establishment, advancement or preferment in 
 the world, or for the s^'ttlement in marriage, of «ach child, except 
 in so far as they have been restricted i»y any instrument, or by any 
 order or authority. un<ler which they may have been appointed. 
 
 23. If a person who has effected or apjiropriated an insurance 
 for the benefit of a wife, or of a wife and child or children, or of a 
 child or children only, shall find himself or herself unaljle to meet 
 thv premiums, it shall be lawful for him or her to sui-render the 
 policy to the company which granted the same, and to accept in 
 lieu therefor a paid-up policy for such sum as the premiums paid 
 up may represent, and for the company to acce]it such surrender 
 and grant such paid-up policy, payable at the time and in the 
 manner and for the benefit of the person or [lersons mentioned in 
 the original policy ; and the share of each person, when more than 
 one are benetited, will then be proportionately reduced. 
 
 24. Any person having effected the insurance with iirotitsmay 
 receive the profits for his own benelit. or may from time to time, 
 either apply the same in payment or reduction of premiums or 
 direct them to lie added to the insurance money ; and the share of 
 each person, when more than one is benetited, will in rhe last case 
 be proportionately increased. Profits accruing iiftcr a policy has 
 been paid up may be received by the insured for his own bei.eiit, 
 or may be added to the insurance money ; and the sbaic of each 
 [lerson, when more than one are benetited, will then also lie j)ro- 
 portionately increased. 
 
 25. It shall be lawful tor any person who has effected or 
 appropriated an insurance for the benefit of a wife and child or 
 children, or of a chibl or children only, and who finds himself or 
 
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 INSURANCE LAW OF CANADA. 
 
 liort^elf unable to continue to meet the premiunriji, from time to time 
 to borrow, on the security of the policy, such nums us may be 
 necessary to keep the policy in force ; and the loans ;^hall be evi- 
 denced by a writiiija^, of which a duplicate must be filed with the 
 company which issued the policy and such filing l)e noted by the 
 comiiany on the duplicate retained by the lender. Such loans shall 
 be secured by privilege on the jiolicy, and the company shall retain 
 a suiheient amount to pa}' them from the insurance money. If 
 such loans be paid betore the death of the issuer, the acquittance 
 shall be file<l with the company. 
 
 20. I'olicies ettecteil or ai)propriated for the benefit ot a wife 
 and child or children, or of a child or children oidy, or of a wife 
 only, shall be exempt from attachment for debts due either liy the 
 insured or by the persons benefited, and shall be assignable by any 
 of such parties, save during minority, and the insurance money, 
 while in the hands of the company, shall be free from and be un- 
 attachable for the debts either of the insured or of the person or 
 persons benefited, and shall be jiaid according to the terms of such 
 policies, or ot any declaration of appropriation, or of any revocation 
 relating to the same. Such exception shall not ajiply to any polic}' 
 or to any share or shares of a jiolicy, which may have reverted to 
 and been held by the insured. (As amended by 58 Vic , c. 26, a. 5 
 (Man.K 1895.) 
 
 27. The insurance money shall not be deemed to form part of 
 the ordinary estate of the [terson whose life was insured, and its 
 receipt by any person benefited shall not render him responsible 
 for the lialtilitics of the estate of such person. 
 
 28. Nothing contained in this Act slndl be held or construed 
 to restrict or interfere with any right otherwise allowed by law to 
 any person to efiei-t or transfer a policy for the benefit ot a wife or 
 children, nor shall ap[)ly to insurance made in favour of, or trans- 
 ferred to, any wife under her marriage agreement. 
 
 &43a. Revised Statutes of Manitoba, 1891, 55 Vic, Chapter 
 95— An Act respecting married women.— 
 
 1. This Act may be cited as •' The Married Wojnen's Act." 
 
 23. A married woman may efiect an insurance on her own 
 life or, with his consent, on that of her husband, for the tern: of 
 her or his luitural life or for any less period, for the benefit of her 
 heira or herself, (jr for such uses and subject to such trusts as she 
 
INSURANCE FOR HENEFIT OF WtFE AND (MIILDREN, ETC. 
 
 329 
 
 may, at any time, declare in writing respecting the same, without 
 any assent or concurrence of her Inisband, except as aforesaid, as if 
 she were a t'eme sole and uninnrricil. 
 
 •J4. Any married woman niuy l)ecome a stockliolder or mem- 
 ber of any bank or insurance comjianj' or any other incorporated 
 company or associatio'i, as fully and otfectually as if she were a 
 /one sole, and may vote by proxy or otherwise, and enjoy the like 
 rights as othur stockholders or members. 
 " # * * # # 
 
 26. Nothing liereinbeforo contained, in reference to moneys 
 deposited, or investments made, by any married woman, shall, as 
 against creditors of tli(> hiisliand, give validity to any deposit or in- 
 vestment of moneys of the husband made in fraud of such creditors, 
 and any moneys so deposited or invested may be followed as if this 
 Act ha<l not been passed. 
 
 The Act 08 Vic. c -itJ (Man.) 180'>, referred to above, § 243, 
 applies under its section (J to policies heretofore issued as well as 
 to policies hereafter to be issued. 
 
 It also pr<jvides l)y section 2 that a policy or written contract 
 of lite insurance ettected by any woman on her own life, aiid ex- 
 pressed to be for the beiictit of her husband and children, or any 
 of them shall be deemed a trust in favour of the olyects therein 
 named, and the moneys payable under such pidicy shall not, so long- 
 as any object of the trust ivmains unperformed, form part of the 
 estate ot the deceased, or be sultject to lier debts. 
 
 (2.) Whatever a man may lawfully do in respect of insurance 
 eli'ected up(jn his life, may under the like circumstances be done by 
 a woman in respect of insurance ettected upt)n her life ; and the like 
 rules of construction shall prevail. 
 
 244. New Brunswick Legislation— 58 Vic., Chapter 25, 1895 
 —An Act to secure to wives and children the benefit of life 
 insurance. 
 
 1. '■ Maturity of the policy," or " maturity of the contract " in 
 this Act shall mean the happening of the event or the expiration 
 of tlie term at which the benefit under the policy or contract 
 becomes due. 
 
 2. The expressions "contract of insurance," "policy of insur 
 ance," and " policy," whenever they occu»- in this Act include any 
 certilicate or contract hereinafter mentioned, or in anyway relating 
 to life insurance. 
 
 si 
 
 
 
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 Ml 
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 :{:50 
 
 rNSUKANCK T.AW OF CANAHA. 
 
 '■]. Tlu' provisions of tiiis Art sliall upiilv to owry hiwful roii- 
 tnirt of iiisuriiiu'c in \vritin<i- now in forco or licrcaftrr I'Uocti'cl 
 wliich is l>as(>(l on llu> ex|H'i'tation of liuman life, and sliall inrhnh' 
 lit'o insnrancr on tlie cndownicnt plan, as well as I'vcrv otlu'r. and 
 sliall also cxtiMid to tlir said contracls ot insnranrc wlu-rt' any 
 doidaration endorsed tluMvon or attaclird tlu'roto. tliony-li mailc 
 Itefori' the passing of this Act, would in- within tin' operation and 
 provisions of this Art, if the same hail heeii nunh' suhseipient 
 thereto. Sueh provisions shall likewise extend and aii[ily to nieni- 
 hership. heindieia.rv and other eertitieates and eontraels relating to 
 life insurance, issued or entered into hy any society or association 
 of persons, for any fraternal, provident, lienevoleiit, industrial, or 
 religious purpose, among the ]iurposes of which is the insuranc(> ol' 
 the lives of tlu> memliers fhcrt'of I'Xciusively, lU' iiy any association 
 for the purpose of life insuranci- forme(l in connection with any 
 su(di society oi' organization, and from its memliers, arid which in- 
 sures the lives ot such memliers, including certilicates or contracts 
 heretofore issued or entere<l into. 
 
 4. .\ny person may insure his life tor the whole term thereof. 
 or tor any delinite period, for the henetit of his wife, oi' ot his wit'e 
 and children, or (d' his wife and some one of his childri'ii, or of his 
 (diildren only. <ir of some or on(> of them, and. where the insurance 
 is elKecttMl for the luMielit of moi'e than one. he may apportion the 
 amount ot'the insni'ancc^ money as he may deem propei-. 
 
 ;'i. The insurance may he effected either in the name ot'the 
 person whose life is insured oi' of any other pei'son, with the assent 
 of sut'h other pi'rson as tiMistee. 
 
 ti. (1). 1 
 
 n case a iio 
 
 licv of insuranci' ellected liv a man on h 
 
 IS 
 
 lltt' IS i'X[iressed upon the lace ol it to lie tor tiu' heiielit of his wile 
 or of his wife and children, or any ol ihein, or of his children alone, 
 or iiiiv of tlieiu, or in case he has heretofore endorsed or niav here- 
 after endorse, or hy any writing iilentitying tlu' policy hy its num- 
 
 ler or otherwise, has made or mav herealter make a ileciai'ation 
 
 that the pol 
 
 lev b 
 
 tor the henelit of his wite, or ol his wife and 
 
 children, or any of them, or of his children alone, or any of them, 
 sucdi policy shall enure and lie deeme(l a trust for the henelit of his 
 wife for liei' separate use, or ol his wife and children, or of his 
 children, or any of them, according lo the intent so expressed or 
 deehired, and so long as any olijei'i ot'the trust remains, the money 
 payaMi' under the policy shall not lie sulijecl to the control ot the 
 

 INSIK \Xi'i; I'lK IIENEI'IT 01" WIFK ANH I'll lIJiKKX, KTC 
 
 :;:U 
 
 Imshiiiul or his crcilitoi-s cxct'iit ii:^ lirroiiiat'tcr iirox'idril, *>v t'oriii 
 part of his t'>tat(' wlicii tln' sum st'curcd iiythc [lolicy hcroiii"- pny- 
 abh' ; hut tliis sliall not hi> lu'ld to iiitcrtiTi' with any |iK'ilu-c nt'tlii' 
 [)olit'y to any [xm-sou prior to s\u-li di'i laratioii 
 
 (2). In till' cascot a policy or written contract of lil'c i^^^l■all(•c 
 cth'ctcd hi'l'orc marriau'c a declaration niidi'r this section shall he 
 and he dceiiicd to have htn-n as valiil and cfh'ctiial as il'siich policy 
 or contract had hi'on cth'ctcd atti'r marrian'i'. hiir iiothin<:' hci'cin 
 contained shall alK'ct any action or procecdiiiij,' now peiidiiiii' : 
 
 ('■)). NVluMi a contract ol"lit'c insurance is cftcctcd hy an unmar- 
 ried man tor tlie heiu'tit ol' his I'urure wite or lutnre wile aid 
 childri'ii, or I'liture children, init the contract does not dcsiii'iiate hy 
 name, or otherwise cK'arly ascertain a specilic person as such in- 
 tendcil wile, tlie contract (not hein<i; within the intent (d'suhsections 
 4 and 5 hereof) shall he construed as provided in seel ion >> ol" this 
 Act; 
 
 (4). When a contrat't of life insurance is clFccted as in suh- 
 Koctiou '■] of this section, hut at the maturity ot the I'ontract the 
 insured is still uuiiiarrieil. or is a widower, nv in ca^c the insiiranee 
 is for the hiuiellt of children only, is a widower without i>-iie, the 
 insurance moiu'y shall fall into and heeonic jiarl of the estate ot'lhe 
 insured : 
 
 (.')). When a contract of lile insurance is ell'ectcd Ivan unmai'- 
 ried man for the heiicfit of liis future wife dv Inturc wife and 
 children, and the inti'iidcil wife is dcsiii'iiated hy name, or i> other- 
 wise clearly ascertained in the contract oj' life iiisurain'c. hut the 
 intemh'il marriaii'e does not take place, all (piestions arisiiiti' on -ueh 
 contract shall he determined as it' this .\c| had not heeii passe(|. 
 
 7. (1). The insured may, hy an instrument in writinu' attaehed 
 to or endorsed on or ideutifyinL;' the policy hy its nuniher or oiIht- 
 wise. vary a policy or a ileelaralion of an a|>porti(mmeiil previou-ly 
 made, so as to rcstrici or extend, I lansi'er cu- limit the heiielit> o| 
 the policy to the wife alone oi' the children, or to oiu' or more of 
 Iheiu, all houii'h the pohn'y is eX|iressed or declared to lie for liic 
 henelit of the wife and I'hildren. or of the wile alone, or for the 
 child or children ahme ov liu" the henelit of the wil'e liu" lite and 'f 
 till- children after her death. oi' foi' the iienclii of the wife and in 
 cas(> ot her death <lurin'j: tlit> life of the insured, then for the e'liid 
 or children. lU' any of them, or for the heiielil of any oiii' or imn'e 
 of the ahoN'c menlioneij persons for lile. and at'ler his or their 
 
832 
 
 INSURANCE LAW OF CANADA. 
 
 (leooase. for the bcnofit of any one or nioro of the survivors ; or 
 althoiigli a [)rior declaration was so restricted ; and lie may also 
 a[)portion the insurance money among the persons intended to be 
 benefited : and nuiy. troiu time to time, by an instrument in writing 
 attacheil to or endorsed on the policy or referring to the same, 
 alter the apportionment as he deems proper; he may also by his 
 '.'ill, make or alter the apportionment of the insurance money ; and 
 an apportionment made by his will shall prevail over any other 
 made Ixfore the date of the will, except so far as such other appoi- 
 tionnu'ut has been acted on betbrf notice of the apportionment by 
 the will. 
 
 (2). Tins section shall apply to policies heretofore issued as 
 well as to future policies. 
 
 8. Where an apportionment is made, all person^ entitled to be 
 benetiteil by the insurance shall be held to share e([Ually in the 
 same : and where it is stated in the policy or declaration that the 
 insurance is for the benetit of the wife and children generally, or 
 of the children generally, witiniut specifying the names of the 
 chihlren, the word "' children" shall be held to mean all the cliild- 
 ren of the insured living at the maturity of the policy, whether by 
 his then or any former wife, and the wife to i)e benetited by tiie 
 policy shall bo the wife living at the maturity thereof. 
 
 !•. Where an aitpi>rtionment as herein provided for has been 
 made, if oni' or more of the persons in whose favour the ap[)ortion- 
 ment has been made, die in the lifetime of the insured, the insured 
 may by an iustrume'it in writing attached to or emlorsed on or 
 otherwise referring 'lO and identifying the policy of insurance, 
 declare that the share formerly apportioned to the person so dying 
 shall bi' tor the benetit of such other person or jjersons, as he may 
 name in tha.t behalf, not being other than the wife and children of 
 the insured, or one or more of them, and in default of such decla- 
 ration, the share of the [)erson so dying shall be the property of the 
 insured, and may be dealt with ami disposed of by him as he may 
 see tit, and shall at his death form part of his I'state. 
 
 10. Where no apportionment as herein provided for has been 
 made, if one or more of the persons entitled to the benefit of the 
 insurance die in the lifetime of the insured, ami no apjuu'tionment 
 is 8uhse(piently made by the insured, the insurance shall lie for the 
 benetit of th(> survivor, or of the survivors of siu'h persons in eipuil 
 shares, if more than one; and if all the persons so entitled die in 
 

 INSURANCE FOR liENEFIT OF WIFE AND CniLIiUEN, ETC. 
 
 333 
 
 the lifetime of the insured, the i" <y and insurance money sliall 
 form part of the estate of the insured or after the death of all the 
 jiersons entitled to such benefit, the insured may l)y an instrument 
 executed as aforesaid, make a declaration that the policy shall be 
 for his then or any future wife or children, or some or one of them, 
 n. AVlien the insurance money becomes due and payable, it 
 shall be paid according to the terms of the policy, or any decla- 
 ration or instrument as aforesaid, as the case may be, fri'e from the 
 claims of any creditors of the insured, except as herein provided. 
 
 12. The insured may, by the policy or l>y his will, or by any 
 writing under his hand, appoint a trustee or trustees of the money 
 payal»le under the policy, and ma\' from time to time revoke such 
 appointment in like manner, and appoint a new trustee or new 
 trustees and for the investment of the moneys payable under the 
 policy 1 lymont made to such trustee or trustees shall discharge 
 the company. 
 
 13. If no trustee is nanu'il in the policy or appointed as men- 
 tioned in section 12 to receive the shares to which infants are 
 ( iitiili-i, their share may be paid to the executors of the last will 
 and tc.-tament of the ini^ured, or to a guardian of the infants duly 
 appointt'd, or to a trustee appointed by the Suprcnu- Court in 
 E(piit,y, upon the application of the wife or of the inlnnts or their 
 guardian ; and such ]iayment shall be a good discbargi' to the in- 
 surance comitany. 
 
 1-1. Any trustee named as provided for in the last preceding 
 two si'ctions, and any executor or guardiiin, may invest the money 
 received in (jovernment securities or munici|iiil ilebt'nttires. or in 
 any other manner authorized by the will of the insured, or by the 
 Supreme Court in E(|uity, and may Ironi time to tinu' altei' and vaiT 
 and transpose the investments and apply all or any part of the 
 annual income arising from tin' share oi' presumptive share of each 
 of the c'hildren, in or toward^ his or her luaintenancc or I'ducatiou. 
 ill such manneras the trustee, executor or guardian thinks tit. and 
 may also ailvance to or for any ol' tlic cnildi'cn, notwithstanding 
 his or her minority, the whole or any part ot'tlic share of the child 
 of anil in tlie money for the advaiicenuMit oi- prt't'erniciil in tbc 
 world t(U'sin'h child, or on the maturity of such child. 
 
 la. 'file guardian, under section l^l. shall give security to the 
 satisfaction of thecourt appointing him. i>r a judge ihci'cof. for tlu' 
 i'aithi'ul perlorinanceof his duties as guai'dian. and t'lr lie' proper 
 
 lit 
 
 ir 
 
334 
 
 INSURANCE LAW OF CANADA. 
 
 application of tlie money wliioh lie may receive. Where the 
 amount of the iii.-iiiraiice money payable to u giiai'iliaii of infants 
 •loe.s not exceed lour hundred dollars, and probate is sought in 
 respect of a will, for the sole juirpose of obtaining in.surauce money 
 to an amount not exceeding finir hundred dollars, the fees payable 
 01) the apiiointment of such executor shall be eight dollars and no 
 more, and such fees shall be apportioned between the judge, 
 registrar and proctor, as directed by the Judge of Probate. 
 
 IG. (1), If there is no trustee, executor or guardian competent 
 t(> receive the share of any infant in tlie insurantr money, and the 
 insurance eom[)any admit tin. claim or any part thereof, the com- 
 pany lit any time after the expiration of two months from the date 
 of their admission of the claim, or tin- part thereof, may obtain an 
 order from the Supreme Court in E(juity for the payment of Ihe 
 share of the infant into court, and in such case the cost of the 
 ainilication shall l>e paid out of the share (unless the court other- 
 wise directs) and tVie residue shall be paid into court pursuant to 
 the order, and such payment shall be a sutHcient discharge to the 
 companv tor the money paid ; and the monev shall lie dealt with 
 as the court may diri'ct ; 
 
 (2). If the company does not, within four months from the 
 time the claim is admitted, either pay the same to some person 
 competent to receive the money under this Art, or pay the same 
 into the Supreme Court in Eipiity. the said court may. ujion a]»pli- 
 cation made by some one comiietent to receive the said money on 
 l)elialf of tlie infant, order the insurance mont'y. oi- any part there- 
 of, to be paid to any trustee, executor or guardian conipeti'iit io 
 receive the same, or to be paid into court, to be dealt with as the 
 court may direct, and any such jiaymeiit shall lie a good discharge 
 to the I'ompany ; 
 
 (3). The court may order the costs of the application, and any 
 costs incidental to establishiiii;' tlu' authoi'itv ot'tlie iiartv ai)i>lvin4r 
 for the order, to lie i)aid out of such moneys, or by the* company, 
 or otherwise, as may seem just, and the loiirl may also order the 
 costs of and iiicidtMital to obtaining out of cou't money voluntarily 
 paid in by a eoini)any to be paiil out of such money. 
 
 17. If a [lerson who has heretofore I'tl'eeled nr who hereatter 
 etlects insurance for the purposes contemplated by this Act, whe- 
 thi'i the purpose a[»itears by the terms of the policy or by endorse- 
 ment thereon or l)y un instrument referring to and identifying tiie 
 
INSURANCE FOR BENEFIT OF WIFE AND CUIT.DREN, ETC. 
 
 335 
 
 m 
 
 i! 
 
 policy, timls himself uiiuble to continue to meet the premiums, he 
 may surrender the policy to the compiiny und accept in lieu there- 
 of a paid-up policy for such sum as the i)remiums paid would repre- 
 sent, payahle at deatli or at the endowment age, or otherwise, as 
 the ease may he, in the sanu' manner as the money insured by the 
 original policy, if not surrendered, wouM have l)cen payahle, an<l 
 the company may accept the surrender and grant a paid-up policy, 
 notwithstanding any declaration or direction in favour of the wife 
 or children, or either of them. 
 
 18. 'llie person insured nuiy, from time to time, borrow from 
 the company insuring, or from any other company or person, on 
 the security of the polic}-, sucli sums as nniy be necessary, and 
 which shall be applied to keep the policy in force, and on such 
 terms and conditions as may be agreed on ; and the sums so bor- 
 rowed, together witli such lawful interest thereon as nniy be 
 agreed, shall, as long as the policy remains in force, l»e a iirst lien 
 on the policy, and on all moneys payaltle thereunder, notwitli- 
 standing any declaration or direction in favour ot the wife or 
 children, or any or cither of them. 
 
 lit. Any person insured under the provisions ol'tliis Act nniy, 
 in writing, re(piire tlie insurance conijiany to pay the bonuses or 
 prolits accruing under the policy, or jiortions oi' the same, to the 
 insure<l, or to ai)[>ly the sanu' in reduction of the annual pre- 
 miums payable by insurecl in such way as he nniy direct, or to add 
 the said bonuses or jirotits to tlie [lolicy ; and the company shall 
 pay or apply sut'h bonuses or profits as the iusuri'd directs, and 
 acconling to the rati's and rules estalilishcd by the company ; pro 
 vided always that the company shall not be obliged to ]>ay or 
 apply siicli bonuses or profits in any other manner than stipulated 
 in the policy or the application therefor. This si'ction shall ap[ily 
 to policies maile before the passing of this Act ami to bonuses and 
 profits tluMi declaiH'd in respect of such iiolicies. as well as to poli- 
 cies hereafter to be made. 
 
 '2i). In case of sevei'al actions bring brought lor insui'ance 
 money, an order may be niailc consolidating the actions, ;)r other- 
 wise dealing with them, if any action is brought lor the <hare of 
 oiu' or nnu'c infants entitled, all the otlur infants I'Utilled. or the 
 trustees, executors or guardiwiis enti(U'(l to receive piiynieni of tlie 
 shari's of such other infiuits, shall be nnidc purtii s to tlie action, 
 and the rights of all the inl'ants shidl be dealt with and determined 
 
 
 vl! 
 
 ■ ; 
 
r 
 
 l!ii 
 
 336 
 
 INSURANCE LAW OF CANADA. 
 
 in one action. The persons entitled to receive the shiire.s of the 
 infants may join with any adnh persons dainiint:; sliares in the 
 policy. In all actions where several persons are interested in the 
 money, the court or the judge thereof shall apportion among the 
 parties entitled any sum directed to he i)aid. and shall give all 
 necessary directions in respect thereof. 
 
 21. The provisions of sections 13, 16 and 20 of this Act shall 
 extend and apply to cases where the insured died hefore the pass- 
 ing of this Act, as well as to cases arising snhsequent thereto. 
 
 22. No declaration or ap[tortionment affecting the insurance 
 monc}', or any portion thereof, nor any apiiointment or revocation 
 of a trustee, shall be of any force or etfect, as respects the com- 
 pany, until the instrument or a duplicate, or a copy thereof, is 
 deposited with the company. 
 
 23. If the policy was efferted and premiums paid by the 
 insured with intent to defraud his creditors, the creditor shall be 
 entitled to receive out of the sum secured an amount equal to the 
 premiums so paid with interest thereupon. 
 
 24. iTothing contained in this Act shall he held or construed to 
 restrict or interfere with the rights of any person to etlect or 
 assign a policy for the benefit of his wife and children, or some or 
 one of them, in any other mode allowed by law. 
 
 25. Where all the persons entitU'd to be benefited under any 
 policy, whetlu'r by original insurance, written declaration or 
 instrument of variation or apportionment under any policy, are of 
 full age, they and the person insuri'd may surrender the [lolicy or 
 assign the same, either absolutely or by way ot security. 
 
 26. Where any policy of insurance, or the declaration endorsed 
 ni>on or attached to or i<leiitifying by its numlier or otherwise any 
 policy of insurance to which tiiis Acr applies, whether such 
 declaration has heretofore been or shall bereattiT be made, pro- 
 vides that the policy shall be for the benefit of a person, and in 
 the event ot the death of such person, for the iK'nelit of anotliei' 
 person, sucli tir^t mentioned person shall, if living, be d'-eined, for 
 the purposes of section 25 of this Act, the [terson entitled to be 
 lieni'fited nmler such policy. 
 
 245. Statutory Enactments Province of Prince Edward 
 Island -35 and 36 Vic, Chapter 30 An Act relating^ to Life 
 Assurance. 
 
 lie it enacte(l, that it shall lie lawful for any person to insure 
 
INSURANCE FUR liENKFIT OF WIFE AND CHILDREN, ETC. 
 
 8:57 
 
 it 
 
 his life for tlu' whole terra thereof, or for any (hitinito period, for 
 the beneiit of his wife, or of his wife luid children, or of his ehildreii 
 onl}', or some or one of them, and to a[ii»ortion the amount thereof 
 as he may deem prosier, wiiere the insurance is ett'ected for tlie 
 Ijenetit of more than one. 
 
 2. The said insurance may he effected eitlier in the name of 
 the person whose life is insured, or in the name of his wife, or of 
 any other person, with the assent of such otlicr jterson or trustee, 
 and the premium on any policy of insurance ert'ected under this 
 Act, shall l3e payable during the whole of the said person's life, 
 or during any less [leriod, by annual, halt-yearly, quarterly or 
 monthly payments. 
 
 3. When no apportionment is made in any such policy, all 
 parties interested in the said insurance shall be held to share 
 e([ually in the same, and the word "children,'" in any such 
 jtolicy, shall be held to mean all the children of tlie person whose 
 life is insured, living at the time of his death, wliether by his 
 marriage at the time of effecting such policy, or by any subse- 
 ([Uent iiuirriage. 
 
 4. U[>on the death of the person whose life is insured, the 
 insurance money due upon the [lolicy shall be payable according 
 to the terms of the policy, free from the claims of any creditor or 
 creditors whomsoever, notwithstanding the bankruptcy or insol- 
 vency of the person so insured. 
 
 5. It shall be competent tor the insurance company granting 
 such policy to pay the amount due thereon to any child or cliihl- 
 ren, bi-ing under age, into the hands of the executor or executors, 
 administrator or administrators of such person so insured, or to 
 tiie guardian of such children legally constituted, who shall hold 
 the same as trustci's tor such minor chihli'en, and the receipt ot 
 such executor, administrator or guardian shall be a sntliricnt dis- 
 charge to the insurance comjiaiiy or association. 
 
 (J. It sludl be lawful for suih executor, administrator or guar- 
 dian to invest the moneys so received, in (iovernnient or real 
 securities, and to alter, vary and transpoM' the sami', and to apply 
 all or any part of the amiual income arising therefrom in or to- 
 wards the nuiintemince and cdin-ition of such minor child nv child- 
 rcii. and also to advance unto and lor each ol' such cliildi'en, his or 
 her share lU' p|■c^unl[ltive share in such trust nioiu'vs for the t'duca- 
 
 22 
 
 m 
 
 -i it 
 
 ! 
 
 ;: ! 
 
 1! f 
 
 i 1 \ 
 
 1 > ' i 
 
 ',n ■ 1 
 
 ii ^ ; 
 
338 
 
 INSURANCE LAW OF CANADA. 
 
 tion. advaiicoiiioiit or pretbrment in tlio world, or on the marriage 
 of any surli child, notwithstanding his or her minority. 
 
 7. Any person insuring with profits may apply the same 
 either in payment of premiums, or direct them to be added to the 
 insuranct! money payable at death. 
 
m 
 
 CHAPTER IX. 
 
 COXUITIOXS OF POLICIES, INCMOINU STATITOHV COXDITIOXS 
 AXD THEIK VAHIATIOXS. 
 
 211). Gknkuai, kkmauks on rONDI- 
 tions ok i'omciks. 
 247. Stati'torv conditions in tiik 
 
 DIKKHllKNT I'liOVINCKS. 
 
 21.S. Staittohy conditions and 
 
 I'llOVISIONS lti:l,ATI.N(i THKKIOTO, IlIND- 
 INi; ALl, KIIU'; INSritANCi; CONTllAfTS 
 ■\VllAISOKVKU IN ONTAlilO. 
 
 •Jlit. \'AliI.VTl()NS OK STATl'TORY CON- 
 DII'IONS I'UIMA KACIi: TN-H'ST AND 
 t'NRKASONAIil.K— VAKIATION.S MUST HE 
 IMJR'ATKD AS l-UKSlltl HUD I!Y THU ACT. 
 
 250. Faim-kk to i'RINt statutory 
 conditions. 
 2.">1. Ontario iNSfUANCK act ai'- 
 
 I'MiAlil.K TO AI.I. INSIRANCK CON- 
 TRACTS WHAISOKVKR -CONTRACT SKIN- 
 Kl) Ol.'TSIDK OF' ONTARIO, HUT OOVKR.N- 
 EI) ItY STATUTORY CONDITIONS. 
 
 252. Al.I. CONTRACTS OK INSURANCK 
 IN ONTARIO TO UAVK CONDITIONS SET 
 OUT IN FULL — EKKEcr OK NON-COMl'I.I- 
 ANCE — I'ARAI.I.Kl. I'UOVISIONS IN IN" 
 Sl'llANCE ACT OK CANADA. 
 
 2"):). CONKI.ICT OR A.MliHiUITV IN 
 CONDITIONS - (ONSIUICIION CONI'RA 
 PROFERENTEM. 
 
 2i54. CONIIITION IN Al'l'I.ICATION IN 
 
 .sMAi.i. type; calculated io elude 
 oi!skr\a1'ion. 
 255. Condition ok policy as io 
 
 gUANTITY OK (ii:Nl'l)\VDi;U ALLOWED — 
 DO. AS I'O LOSS IIY EXI'LOSION -DO. 
 (lUNPOWDKIt ON A STKA.MER INSUUEI) 
 A(iAINSr KIRE — POLICY ISSIKDON KOllM 
 USED KOU INSURANCK OK I1UILDIN(;S - 
 CONDI IION OK POLICY AS TO OUNPOW- 
 I)I:K l!i:iN(i KKPT WITHOUT CONSENT. 
 
 2"H). e'oNliniON III AT AOENI UK iti:- 
 (iAHUEIi AS AOENT OK Till: A PPLIC.VNT. 
 
 25". Condition as T(j non-payme.n r 
 
 OK PKKMIUM note— omission TO KILL 
 UP BLANK DATE — UNIKOIIM ( ONDI- 
 TIONS ACT NOT APPLICAIILE TO MUTUAL 
 COMPANIES. 
 
 2."iS. Condition as to time or pay- 
 ment OK LOSS. 
 
 2.5!i. Condition as to ai.ienatihn 
 ok proplp.ty. transke'f, levy, etc. 
 21)0. Conditions ok policies ok 
 
 LNUI.ISII KIRE insurance COMPANIES 
 IN (^UKHKC -CONDITIONS OF FIRE IN- 
 SlHANCi; POLICIES IN USE IN OREAT 
 MKIIAIN. 
 
 201. CoNDITION.S OF LIFE ASSURANCE 
 POLICIES— A RECENT CONDITION AS TO 
 I IIANIJE OF IlENEFICIAKY OK A l.IKK 
 ASSURANCK I'OLIcy. 
 
 202. Conditions of poi.iciks ok 
 
 lUP.iil.ARV (iUARANTEE INSURAXIE. 
 
 2ii:!. Tim: new yohk standard lire 
 
 POLICY. 
 
 2t3l. Printed CONDITIONS OK polk y, 
 
 AI.TI:R.\TI0NS and AMI'.I(iUI^^. 
 
 21)5. Levy on property insured— 
 
 EXEC UIION AciAINSr RUll.DINnS — Kl. 
 lA. I)i; IIONIS El' DE TERRIS. 
 
 2t)(). CcJNDIIIONS AS IcI CANCKLI.A- 
 TION IIY NOTICE, ETC. — IMMEDIATE 
 CANCELLATION NOT VALID — REPAY- 
 MEN I' OK UNEARNED PUEMIU.MS A CON- 
 DIIION PKKC EDENI'— AN ENlil.lSII CON- 
 STI'.UCIIOV AS To KKilir OK c,iM- 
 PAN'i IO CANCEL — NOTICE To llROIii:l! 
 — PAUI'Nl:u's CONSENT— ACTUAL TEN- 
 DKIl or PRKMIU.M UNNECESSARY - 
 WHEN ACTUAL TENDER OK IR|:MILM 
 IS NEC lOSSARY — CANCELLATION ON 
 " HECJCEST " OK ASSniLl.'. 
 
 !!i 
 
 I ! 
 
 (i:l 
 
 240. General remarks on conditions of policies, — Tlio con- 
 ditiiiiis mioii wliicli iho coiilnict" of iii.miriuu'e is liascd arc citlicr 
 ritsitc'd oxprussly oi' tacitly iiinlci'stoDcl. A iici!i-cc)ia[iliaiuc' with 
 
340 
 
 INSURANCE LAW OF CANADA. 
 
 tlicm may, acfonling to the oiivunir^tanees of the case, modify, sus- 
 pend or entirely aiiinil the ol)!i!^atiou of the insurer. They may be 
 por^itive or negative. If the form.'r. a certain tiling must liapjien 
 or be done ; if the latter, it must not hajipeu or must not be done.' 
 
 247. Sta^.utory conditions in the different provinces. — 
 
 In Qiebec(as in the other proviiires until !^tatutor\- conditions 
 were enacted in some of them) any condition, however hard or 
 uureasoiuible, may be endorsed on a policy, provided always that 
 it be not contrary to public order or good morals.- Under the On- 
 tario Insurance Act,' the Manitoba Fire Insurance Policv Act ' ami 
 the British Cohmibia Fire Insurance Policy Act, 1893,' statutory 
 c(jnditi(ins are enacted which are deemed as against the insurers'' to 
 bo a part of every tire insurance contract entered into subse(pient 
 to those statutes or reneweil or otherwise in force in tliose pro- 
 vinces. 
 
 There are as yet no statutory conditions in Quebec, tliough the 
 Civil Code of Lower Canaihi contains some of the enactments 
 found among the statutory conditions of the other provinces. An 
 analysis of these statutory comlitions shows clearly the protection 
 they attbrd to the insured, and their enactment in Quebei- would 
 seem well worth the consideration of the legislature of that pro- 
 vince. These conditions were carefully drawn in Ontario) by Mr. 
 Hunter, and their enactment there seems to have served as a basis 
 for their adoption in Manitoba and British Columbia. The Ontario 
 statutory conditions are printed herein at length.' 
 
 Statutory conditions were first enacted in Ontario by the 
 Uniform Conditions Act of 187(3. In 1880, the Supreme Court of 
 Canada" decided that the Uniform Conditions Act did not apply 
 to mutual insurance comiianies." In 188 1, liy 44 Vic. c 20 (Out.) 
 8. 28, the statutory conditions were made applicable to such com- 
 panies. In Pdi-i-mihs v. C<tizci(-'< /h.v. Co."' it was decided that the 
 statutory conditions att'ected all policies of fire insurance made in 
 Ontario whether the insuring t'omiianies weri' incorporated or 
 licensed by the province or otherwise. 
 
 46 Vic. c. 20 (Out.) ss. 2. 3. 4, extended the statutory i-ondi- 
 tiims to oral contracts of tire insurance. 
 
 1 i:j L. N. 'irn 
 
 ■^ C. C. L. C. !I1H). ■•' (iO \\c. c. H(i. ' H. y. M. IKit], .55 Xk: c. 5it. 
 
 •' Tili \'ic. c. 12 {B.C.), oS Vic. c. 22 (B-C). " But soc In/rn ^ 2.52c. ' Infra S 24-*. 
 ^ Miituiil l''ii'e Iiisuniiicc Co. of Wi-lliiinloii & Frey, .l.S.C.H. S2. 
 ■' Sec also iii/i-d S 2."iT:i, Balliifili v. Ity.vcil ,Mut. F.I.C. 5 A. 1{. ST. 
 '" L. H. 7 Ap|). t'ascs ltd. 
 
1 1 
 
 i 
 
 COXDITfoN'.S i>V I'nUClF.S. ETi'. 
 
 841 
 
 Tlio Ontario Unit'orm Comlitioiis Aet win ailoprcd in Mixiii- 
 t(>l)u in 1888. luid in Britisli C-oliiiiiliia in 18!t:l There arc no pro- 
 visions of fhis sort in any ot the otlier provinces, nor in Great 
 Britain, wlu-re tlie tire insuranee eompanies are left tit largo to 
 make what (•(jiitracts they [ilease with their enstomer.s.' 
 
 Variations from and additions t(^ thestatutory conditions must 
 he ilrawn attention to in the policy, ami these variations must he 
 held jnst and reasouahlehy the court which is asked to apply thorn. 
 
 The reasonahleness of a variation to tlie statutory conditions 
 is to ho tested with ri'lation to the circumstances at the time the 
 [lolicy is issued, and not in the light of those existing at the time 
 at which the condition is sought to he applied. - 
 
 It has also heon said that variations making the policy more 
 onerous than the statutory conditions would have done, are to be 
 treated as prima facie unreasonalile, hut this princi[>le has not yet 
 heen clearly decided.' The i^uestion whether a variation is just ami 
 reasonable maybe raised on appeal, although not raised at the trial.' 
 
 248. Statutoi*y conditions and provisions relating thereto, 
 binding all fire insurance contracts Avhatsoever in Ontario.' 
 
 1G8. Si'-ifiitiyrij ciiiiilitwhs fn be part of erer;i puiic'/ unle-s.-i riir'ed. — 
 The conditions set forth in this section shall, as against the insurer,'' 
 be deemed to be part ot every contract, (whether sealed, written or 
 oral,) of tire insurance hereafter entere<l into or renewed or other- 
 wise in force in Ontario with respect to any iiroperty therein or in 
 transit therefrom or thereto, and shall be printed on every such 
 l)olicy with the heading Statatory Condi thi}is, and no stipulation to 
 the contrary, or providing for any variation, addition or omission, 
 shall be binding on the assureil unless evidenced in the manner 
 prescribed by sections IGD and 170. R.S.O. 1887. c. 1(37, s. 114. 
 
 (1) Misrepvesentation or omission. — Tf any person or persons in- 
 sures his or their buildings or goods, and causes the same to 1)0 
 described otherwise than as they really are, to the prejudice of the 
 company, or misreiirosents or omits to communicate any circuni- 
 staiu'c which is material to be nunle known to the company, in 
 order to enable it to judge of the risk it undertakes, such insurance 
 
 ' Maclenniin, Fire [iis. Law Out., (i. 
 
 ■^ McK.iy V, Xoiwitli Ins. Co , 27 O.U. i'll, iitid liallaiili v. Royal >rut . F. 1. Co., 
 o A.Ii. 87, re)iorl('il hifra i i")7n. 
 
 ■' Mi'Kay v. Xorwicli Ins. Co., -J.' O.U. 2.".1, see al.so lit/ni ? 241). 
 
 ' 1.") A.l'i. Itiia, Hediliik v. S.iii^eeii, relerred to i)i//'(( §§ 2H>, i5S, and reported 
 infra js •l)^-2b. 
 
 " (iO \'ir. c, :',(! (D). '' Hut see inf'ni ^ L'.")2o, 
 
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 IMAGE EVALUATION 
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 342 
 
 INSURANCE LAW OF CANADA. 
 
 shall be of no force in respect to the property in regard to which the 
 misrepresentation oroiaission is made. R.S.O. 1887, c. 167, s. 114 (1). 
 
 (2) Policy sent to be deemed as applied for unless variance pointed 
 out. — After application for insurance it shall he deemed that any 
 policy sent to the assured is intended to be in accordance with the 
 terms of the application, unless the company points out, in writing, 
 the particulars wherein the policy differs from the application. 
 R.S.O. 1887, c. 167, s. 114 (2). 
 
 (3) When a chanfje as to risk shall avoid a policy. Notice of 
 chanye, etc. — Any change material to the risk, and within the con- 
 trol or knowledge of the assured, shall avoid the policy as to the 
 part affected thereby, unless the change is promptly notified in 
 writing to the c mnany or its local agent ; and the company when 
 so notified may r- turn the premium for the unexpired period and 
 cancel the policy, or mny demand in writing an additional premium, 
 which tiio o^su.'ed r .a-' if be dasires the continuance of the policy, 
 forf,l;v, ith pay to ■ ompany ; and if he neglects to make such 
 payment forthwitn aucr receiving such demand, the policy shall 
 be no longer in force. R.S.O. 1887, c. 167, s. 144 (3). 
 
 (4) Change of property. — If the property insured is assigned 
 without a written iiermission endorsed hereon by an agent of the 
 company duly authorized for such purpose, the policy shall hereby 
 become void , but this condition does not aj)ply to change of title 
 by succession or by the operation of the law, or by reason of death. 
 R.S.O. 1887, c. 107, s. 114 (4). 
 
 (5) Partial damage — salvage. — Where property insured is only 
 partially damagotl, no abandonment of the same will be allowed 
 unless by the consent of the company or its agent ; and in case of 
 removal of property to escape conflagration, the company will con- 
 tribute to the loss and expenses attending such act of Halviige pro- 
 portioiuitely to the respective interests of the company or companies 
 and the assured. R.S.O. 1897, c. 167, s. 114 (5). 
 
 (6) Money, securities, etc. — Money, books of account, securities 
 for money, ami evidences of debt or title are not insured. R.S.O. 
 1887, c. 167, s. 114 (6). 
 
 (7) Plate, painting.'^, cloc/;n, etc. — Plate, plate glass, plated ware, 
 jewellery, medals, paintings, seulptures, curiosities, scientific and 
 musical instruments, bullion, works of art, articles of virtue^ fres- 
 coes, clocks, watches, trii\kets and mirrors are not insure! unless 
 mentioned in the policy. R.S.O. 1887, c. 167, s. 114 (7). 
 
CONDITIONS OF POLICIES, ETC. 
 
 348 
 
 (8) Prior or stihseijuent insurance. — T'ae comjumy is not liable 
 for loss it'tyiere is any prior insurance in any other company, unless 
 the company's assent thereto appears herein or is endorsed hereon, 
 nor if any subsequent insurance is effected by any other company, 
 unless and until the company assents thereto, or unless tlie com- 
 pany (hies not dissent in writinijf within two weeks after receiving 
 written notice of the intention or desire to eftoct the subsequent 
 insuraiice, or does not dissent in writing after that time anil bet'ore 
 the 8\d»se(picnt or further insurance is etteeted. R. S. O. 1887, 
 c. 167, s. 114 (8). 
 
 (9) Case of assent to other insurance. — In the event of any other 
 insurance on the property herein described, having been assented 
 to as aforesaid, then this company shall, if such other insurance 
 remains in force, on tlie happening of any loss or damage, only lie 
 liable for the payment of a ratable proportion of such loss or dam- 
 age without reference to the dates of tliedifterent policies. R.S.O. 
 1887, c. 167, s. 114 (9). 
 
 (10) The company is lutt lijible for the losses following, that is 
 to say : 
 
 (a) Liahility in case of non-owners/ui>. — For the h)ss of property 
 owned by any other party than the assure<l, unless the interest of 
 the assured is stated in or upon the i»olicy. R.S.O. 1887, c. 167, 
 s. 114 (10) (a). 
 
 (/>) liioly invasion., etc. — For loss caused by invasion, insurrec- 
 tion, riot, civil commotion, military or usurped p(»wer. R.S.O. 
 1887, c. 167, s. 114 (10) {h). 
 
 ((') Chimne;/.s, a.shes, stoves. — Where the insurance is upon 
 buildings or their contents — for loss caused by the want of good 
 and substantial brick or stone chimneys ; or by ashes or embers 
 being deposited, with the knowledge and consent of the assured, 
 in \vo(»(h(n vessels; or by stoves or stovepipes being, to the knowledge 
 of the assured, in an unsafe condition or improperly secured. 
 R.S.(K 1887, c. 167, s. 114 (10) {c). 
 
 {il) Gooils to nihich fire heat is l)ein<f apfilj'eil. — For loss or dam- 
 age to goods destroyed or damaged while undergoing any process 
 ii\ or by which the application of fire lieat is necessary. R.S.O, 
 1887, c" 167, s. 114 (10) (f/). 
 
 (e) Repairs hij carpenters., etc. — For loss or damage occurring to 
 buildings or to their contents while the Ituildings are Iteing re- 
 [laired by carpenters, joiners, plasterers or other workmen, and in 
 
 Mi 
 
 1 
 
 ir 
 
 mi. 
 ■■■Ik 
 
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 844 
 
 INSURANCE LAW OF CANADA. 
 
 coiisotiueiu'e theroot", unless permission to execute such repairs has 
 hoeu previously grantiHl in writing, signe<I l»y a duly authorized 
 agent of the company, liut in dwoUing houses fifteen days are 
 allowed in each year for incidental repairs, without such permis- 
 sion. R.S.(J. 1887. e. 167, 8. 114 (e). 
 
 if) G*it>p<ni'<le)\ coal oil, etc. — For loss or damage occurring 
 while petroleum, or rock-earth or coal oil, camphcne, gasoline, 
 hurning fluid, henzine, naphtha or any liquid i)roducts thereof, or 
 any of their constituent parts (refined coal oil for lighting purposes 
 onh', not exceeding five gallons in (|uantity. or lubricating oil not 
 being crude ))etroleum nor oil of le.-is specific gravitA' than required 
 by law for illuminating purposes, not exceeding five gallons in 
 (piantity. excepted), or more than twenty-five pounds weight of 
 gunfiowder is or are stored or kept in the building i-isnred or con- 
 taining the property insured, unless permissit)ii is given in writing 
 by the company. R.S.O. 1887. e. 167, s. 114 (10){f). 
 
 (11) Exphn^iiiii — Liiilihtniij. — The eomjiany will make good 
 loss caused by the explosion t)f eoal gas in a building not fi)rming 
 jiart of gas works, and loss by fire caused by any other explosion 
 or by lightning. R.S.O. 1887, c. 167. ». 114 (11). 
 
 (12) Pmoj' nf loss irhen jun/dhlf; to 'il/icr l/ian assured. — Proof 
 of loss must be made by the assured, although the loss be payable 
 to a third party. R.S.O. 1887, c. 167. s. 114 (12). 
 
 (18) Dir('.i'fio))s fii he ohserned nn Dinliiihj olnim. — Any person en- 
 titled tt> make a claim under this policy is to observe the following 
 directions : 
 
 {(i) He is forthwith after loss to give notice in writing to the 
 company. R.S.O. 1887. c lt!7, s. 114 (13) ("). 
 
 {!)) He is to (h'liver, as soon after as practicable, as particidar 
 an act'ount of the loss as the nature of the case permits. R S.O. 
 1887, c. 167, s. 114 (13) (/»). 
 
 ('•) lie is als«» to furnish therewith a statutory declaration 
 declaring : — 
 
 (1) That the said accoutit is just and true. 
 
 (2) When and how the firo originated, so far as the declarant 
 knows or beli(!Ves. 
 
 (3) That the fire was not causcil through his wilful act or 
 neglect, procurement, means or contrivance. 
 
 (4) The amount of other insurances. 
 
 (5) All li lis, antl incumbrances on the subject of insurance. 
 
CONDITIONS OF POLICIES, ETC. 
 
 345 
 
 (6) The place where the pmperty insured, it' movahle, was 
 tleposiled at the time of the tire. R.S.O. 1887, c. 167. s. 114 
 (13) (0). 
 
 (d) He is in support of his claims, if required and if practic- 
 able, to produce hooks of account, warehouse receipts and stock 
 lists, and furnish invoices and other vouchers ; to furnish coi^ics ot 
 the written portion of all policies ; to separate as far as reasonahly 
 may he the damaged from the undamasjcd goods, and to exhibit tor 
 examiiuition all that remains of the property which was covered 
 by the policy. R.S.O. 1887, c. Ifi7. s. 114 (13) (</). 
 
 ic) He is to produce, if required, a certilicate under the hand 
 <if a magistrate, notary publie. commissioner for taking affidavits, 
 or municipal clerk, residing in the vicinity in which the tire hap- 
 pened, and not concerned in the loss or related to the assured or 
 sufferers, stating that he has examine<l the circumstam-es attend- 
 ing the tiro, loss or damage alleged, that he is acquainted with the 
 character and circumstances ot the assured or claimant, and that In- 
 verilv believes that the assured has by mistbrtune and without 
 fraud or evil practice sustained loss and damage on the subji-ct 
 assured to the amount certified, K.S.( >. 1887, c. 107, s. 114 (13) (e). 
 
 (14) Proof nf loss ma;/ he made b>/ ai/fiif. — The above proofs 
 of loss may be made Ity the agent of the assured, in ease of the 
 absence or inability of the as-ured himself to make the same, such 
 absence or inability being satisfactorily accounted for. R.S.O. 
 1887, c. 107, 8. 114 (14). 
 
 (15) False statement ov fraud ritiates claim, — Any fraud or false 
 statement in a statutory declaration, in relation to any of the above 
 particulars, shall vitiate the claim. R.S.O. 1887, c. 107, s. 114(15). 
 
 (10) A)>i>raisement in rase nf differences, — If any difft'rcnce 
 arises as to the value of the property insured, of the property 
 saved, or ot amount of the loss, such value and amount ami the 
 proportion thereof (if any) to be paid by tlie company shall, whether 
 the right to recover on the policy is disputi'd or not. and imlc- 
 l)endently of all other (luestions be sultmitted to the arbitration of 
 some person to be chosen by both parties, or if they cannot agree 
 «)n one person, then to two uersons, one to be chosen by the party 
 assured and the other by the company, and a third to be appointeil 
 by the persons so chosen, or on their hiiling to agree, then by the 
 County Judge of the county wherein the loss has happened ; and 
 such ret'erence shall be subject to the provisions of tlie laws applic- 
 
 m 
 
 ^ ft 
 
 ! i ; 
 
 ii.^ 
 
346 
 
 insurancp: law of Canada. 
 
 Hiifi 
 
 al»k' to rc'tbrem-es in actions; and the award sliall, if the comitany 
 is in other respects liable, he conclusive a.s to the amount ot the 
 loss and jiroportion to be paid by the company ; where the full 
 amoutit ot" the claim is awarded the costs shall follow tlie event; 
 and iti other cases all questions of costs shall be in the discretion of 
 the arbitrators. 
 
 (17) Lass when pcviable. — The loss shall not be payable until 
 sixty days after the completion of the proofs of loss, unless other- 
 wise provided for by the contract of insurance. R.S.O. 1887, c. 
 167, s. 114 (17). 
 
 (18) Cimp'iny inn;/ replace, instend of p((;/iii;f. — The company, 
 instead of making payment, may repair, rebuild or replace, within 
 a reasonable time, the property damaged or lost, giving notice of 
 their intention within fifteen days after receipt of the proofs herein 
 required. R.S.O. 1887, c 167, s. 114 (18). 
 
 (19) Insurance terminable on notice. — The insurance may be 
 terminated by the company by giving notice to that eftect, and, it 
 on the cash plan, by tendering therewith a ratabU' proportion of 
 the premium for the unexpired term, calculated Iron) the termi- 
 nation of the notice ; in the case of personal service o'" lie notice, 
 five days' notice, excluding Sunday, shall be given. Notice may 
 be given by any company having an agency in Ontario by register- 
 ed I'-tter aihlressed to the assured at his last post office address 
 notified to the company, aiul where no address notified, then to 
 the post office ot the agency from which the application was 
 received, and whore such notice is by letter, then seven <lays from 
 the arrival at any post office in Ontario shall l>e deemed good 
 notice : And the iioliey shall cease after such tender and notice 
 aforesaid, and the expiration of the five or seven days as the case 
 may be. K.S.O. 1887, c. 107, s. 114 (10). 
 
 (a) The insurance, if for cash, may also be termimited by the 
 assured l)y giving writto!) notice to that effect to the company or 
 its andiori/.ed agent, iiv which case the com[tany may retain tht> 
 customary short rate for the time the insurance has been in force, 
 and shall re|iay to the assured the balance of the premium paid. 
 R.S.O. 1887, c. lt;7, s. 114 (10) a. 
 
 (20) IVairer of condition. — No condition of the policy, either in 
 whole or in [lart, shall be deemed to have l»een waived l»y the com- 
 pany, unless the waiver is clearly expressed in writing, signed by 
 an agent of the conipany. R.S.O. 1887, c. 167, s. 114 (20). 
 
 , li 
 
Wm 
 
 CONDITIONS OF POLICIES, ETC. 
 
 347 
 
 
 (21) Officers assuminif to agree in writimj to l>e deemed ai/ents. — 
 An ofHcLT or iiirotit of tho conipaDV, who assunu's on bi'hall" of 
 the company to ontor into any written ai.'rooniont roh»ting t(» aiiy 
 matter connected with tlie insurance, sliall be deemed iiritna facie. 
 to ho the agent of the coujpany for the purpose. R.S.O. 1887, c. 
 167, s. 114(21). 
 
 (22) Actions to Ije hronglU within one i/ear. — Every Hon or 
 proceedijig aijainst the company for the recovery of an* chiim 
 under or by virtue of this policy, shall be absolutely barred, unless 
 commenced within the term of one year next after the loss <jr 
 damf.i;e occurs. R.8.0. 1877, c, HJ2. Schedule R.S.O. 1887, e. 
 167, •>. 114 (22). 
 
 (23) What Constitutes written notice. — Any written notice to a 
 company for any purpose of the statutory conditions, where the 
 mode thereof is not expressly provided, may be by letter delivered 
 at the head office of the company in Ontario, or by registered jiost 
 letter addressed to the company, its manager or agent, at such head 
 office, or by such written notice given in any other manner to an 
 authorized agent of the company. 50 V., c. 26, s. 114. 
 
 169. Variations, how indicated. — If the in. ,urer desires to vary 
 the said conditions, or to omit any of them, or to atld new con- 
 ditions, there shall be atlded on the instrument of contract con- 
 taining the printed statutory conditions words to the following 
 effect, printed in conspicuous type and in ink of a ilift'erent colour. 
 R.S.O. 1887, c. 167, s. 115. 
 
 Variations in Contlitions. 
 
 ^- This policy is issued on the above Statutory Conditions with 
 the following variations and additions : 
 
 "These variations (or ^,9 the case ina>i he) are, by virtue of the 
 Ontario Statute in that behalf, in force so tar as, by tho Court or 
 •Fudge before whom a (piestion is tried relating thereto, they shall 
 beheld to be just and reasonable to be enacted by the company."' 
 R.S.O. 1887, c. 167, s. 115. 
 
 170. Variations not hlndin;/ unless 'dearl;/ indicated. N"o such 
 variation, addition or omL-^sioM, shiill, unless the same is distinctly 
 indicated ami set forth in the manner or to the effect aforesaid, be 
 legal and binding on the assured; and no (piestion shall be con- 
 sidered as to whether any sui'li variation, addition or omission is, 
 under the circumstances, just and reasoiniljle, but on the contrary. 
 
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348 
 
 INSURANCE LAW OF CANADA. 
 
 ilili 
 
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 tlie policy shall, as against the insurer, he suhjcct to the statutory 
 conditions only, unless the variations, adtlitions or omissions are 
 distinctly indicated and set t'cjrth in the manner or to the eftect 
 aforesaid. R.S.O. 1887, c 167, s. 110 
 
 Optional with insarcr.s to pay elaims void under certain statutori/ 
 conditions. — Provided it shall be optional with the insurers to pay 
 or allow claims which are void under the 8rd, the 4th, or the 8th 
 Statutorv Condition, in case the said insurers think tit to waive the 
 objections mentioned in the said conditions. R.S.O. 1887, c. 167, 
 s. 112. 
 
 171. PoUcji containiixj other than .stutiilorij ooiiili(i>n)s — Tn case a 
 policy is entered into or renewetl containing or including any 
 condition other tiian or ditt'erent trom the conditions set forth in 
 section 168 of this Act, if the said condition so contained or 
 included is held, by the Court or Judge, before wIkjui a fiucstion 
 relating thereto is tried, to be not just and reasonable, such con- 
 dition shall be null and void. K.S.O. 1887, c. 107, s. 117. 
 
 172. — (1) It' due proof of loss not tjiren through accidoii, eti\, or 
 idjjedion nut made thereto, or made on. nlher gr-mnds than non-com- 
 plidiioe irith conditions. — Where, by reason of necessity, accident or 
 mistake, the conditions of any contract of rtre insuran(!e on pro- 
 perty in this Province as to the proof to be given to tlie insurance 
 companv after the occurrence of afire have not been strictlv com- 
 plied with ; or where aft»'r a statement or proof of loss has been 
 given in good faith by or on behalf of the assured, in pursuance of 
 any proviso or condition of such contract, the company, through 
 its agent or otherwise, objects to the loss upon other grounds than 
 for imperfect compliance with such conditions or does not within a 
 reasonable time after receiving such statement or proof notify the 
 assured in writing that such statement or proof is objected to, and 
 what are the particulars in which the same is alU'ged to be 
 defective, and so from time to time ; or where, for any other reason, 
 the Court or Judge before whom a (piestion relating to such in- 
 surance is tried or inciuired into, considers it ine(piitable that the 
 insurance should be deemed void (U" forfeited by reason of imi)erfect 
 comi»liance with such conditions — no objection to the suiHciency of 
 such statement or proot or amended or supplemental statement or 
 proof (as the case may be) shall, in any of such cases be allowed as 
 a discharge of the liability of the company on such contract of 
 insurance wherever entered into. R.S.O. 1887, c. 107, s. 118. 
 
CONDITIONS OF POLICIES, ETC. 
 
 349 
 
 (2) Allowance for cosl.s occasioned bi/ default uf plaintiff. — If in 
 any action or proceeding upon a contract of fire insurance, the 
 assured, being plaintif! in such action or proceeding, has in the 
 opinion of the Court or Judge, wilfully neglected or unreasonably 
 refused to furnish necessary intormation respecting the property 
 for which the insurance money is claimed, and if as a conserpience 
 of such neglect or refusal, the defendant company has been at 
 expense in obtaining information or evidence, the Court or Judge 
 may, in disposing of costs, take into consideration the expense so 
 incurred by the defendant company. .52 V. c. 31, s. 4. 
 
 173. Appeal. — A decision of a Court or Judge under this Act 
 shall be sulyect to review or appeal to the same extent as a decision 
 by such Court or Judge in other cases. R.S.O. 1887, e, 167, s. 119. 
 
 219. Variations of statutory conditions prima faoie nnjnst 
 and unreasonable — In Parson.'^ v. Queen Ins. Co.' it was laid 
 down g<!nerally that any variation of the statutory conditions is 
 prima facie unjust and ui; reasonable.' In the latter case it was 
 pointed out that "unjust and unreasonable " is not an equivalent 
 expression to "more onerous and burthensome." 
 
 A varied condition must not, however, be more stringent than 
 the statutory condition.' In this last case it was held that the 
 unreasonableness of a condition is to be tested with relation to the 
 circumstances of each case at the time the policy is issued.' 
 
 In Ma>j v. Standard,-' Patterson, J. A., laid it down that 
 "conditions dealing with the same subjects as those given by the 
 statute, and being variations of the statutory conditions, should be 
 tried by the standard atfordetl by the statute, and held not to be 
 just and reasonable if they impose upon the insured terms more 
 stringent or onerous or complicated than those attached by the 
 statute to the same subject or incident." 
 
 Tlie Divisional Court may determine whether the condition 
 was a just and reasonable one ; it is not necessary that the (jues- 
 tion be iirst raised at the trial." 
 
 ' 2 O. K. 45, (■ ;(/;•(( S ■•i">, followed in Smith v. City of London Ins. Co., 11 O. H. 3)^. 
 
 - Hut Hi'e aujifii S -4". 
 
 " UiilliiKh V. Hoynl Mutual V. I. C, 5 A. U. s", infni ^ 257a. 
 
 * See also Butler v. Standard, 4 A. It., 31)1 ; Peoria Sugar Uelining Co. v. Canada 
 Fire * Marine Ins. Co., 12 A. R. •IIH. 
 
 " 5 A. R. (122, referred to iiijn; SS 25(1 and 258. 
 
 " Ueddick v. Saugeen Mutual Fire, 15 A. U. '.VXA, referred to aupi-ii S 247 and 
 ('/(//•*( S 2ijH, and reported infra S 282b. 
 
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 350 
 
 INSURANCE LAW OF CAXAUA. 
 
 249a. Variations mast be indioated as prescribed by the 
 Act. — WhateviT may liu the coiidititMis rtousfht to Ik- iiniioscd by 
 insurance companies, no such coiulitiourt can avail airainst the 
 statutory contlitions, and the latter alone are deenied to he part ot 
 the policy and resorted to hy the insurers, notwithstanding any 
 conditions of their own, unless the latter are indicated hy variations 
 in the manner [trescribed by tlie Act. 
 
 The penalty for not observing that manner is that the policy 
 l)ecome8 subject to the statutory conditions, whether printed or 
 not.' 
 
 230. Failure to print statutory conditions. — Where a com- 
 pany has printed its own conditions and failed to print the statu- 
 tory ones, it is not the case that the policy must be deemed to be 
 witliout any conditions at all.- 
 
 In an action on a tire policy, upon which the statutory condi- 
 tions were not endorsed, but which was on the face declared to be 
 subject to the company's conditions endorsed, the 11th of which 
 was that the insured should do all in his power to savi' and pro- 
 tect the insured property, and prevent injury thereto, and by the 
 17th condition the iion-fultilment of these conditions entailed the 
 forfeiture of the policy, the jury found specially, amongst <Uher 
 things, that the plaintiff wilfully neglected to save and prevented 
 others trora saving the insured property, whereby liis goods were 
 prevented from being saved, but they disagreed as to the defence 
 of fraudulent overvaluation : — 
 
 Held, that under the decision of the i'rivy Council in Parsunft 
 V. Cilizens Insuranet' Compani/,-^ the policy must be taken to be a 
 policy with the statutory conditions only ; and a new trial was 
 granted that the case might jiroceed as upon such a policy.' 
 
 By an additional condition of a jtolicy of insurance, it was 
 provided that if the insured [)roiterty should be levied upon or 
 taken into possession or custody under any legal process, or the 
 title should be disputed in any proceeding in law or ecpiity, the 
 policy should cease to l)e bin<ling upon the company. After the 
 insurance was eti'ected, an execution issued against the goods of 
 
 ' Citizeiix Ills. Co. V. I'lirsons; Queen Iiiis. Co. v. do., supra ^'Si^ia; iis to coni- 
 pltauco with stiit. enact, us to printinx see Siiiuis v. Standard Ins. Co., 27 Grant Chy. 
 107, reported iiij'ni § i"i9; and tts to oniiasion to tUl up blank in tomlition sen Sear.s v. 
 Agriuultural Ins. Co., ;<2 C. P. .5.S(», in/ru S 257. 
 
 " Do, 
 
 3 7 App. Gas. w;. * Devlin v. Queen Ins. Co.. 4(1 Q, B. (III. 
 
COXDITIOXS OF POMCIES, ETC. 
 
 861 
 
 tlu' iiisiii'i'd, uikIlt wliicli tlio Itnilift'iiiiuic a tonnal seizure, hut did 
 not deprive the insured of their possession or custody, or phu-e any 
 t)ne in possession, and upon a hond beinif tjiven a tlay or two 
 afterwards the seizure was withdrawn. 
 
 Tlie Court of Connnon IMeas ' heKl tlmt this was a vaHd 
 
 seizure, and tliat the phiintifl, who was inort<;a<;ee ot the goods 
 
 and to wlioni the K)ss was payal»h', eouM not Ihi-refore recover: — 
 
 llehl, reversing this judgment, that the plaintiff was entith'd 
 
 to recover. Per Burton, Patterson and Morrison, JJ. A., lliat 
 
 there had not heen a seizure witliiii tlie meaning ot' the condition, 
 
 which refers to an actual custody and cliange of possi-ssion. Per 
 
 Armour, J., tliat the condition was not hinding on tlie insiireil. as 
 
 it was not printed in comjdiance with R. S. O. (IS77), c. IG'J, s. 4. 
 
 Wilson V. The Stmidard Fire Iii.s. t'o.-'was followed and approved of. 
 
 Senihle, per Patterson, .1. A., that tUo condition was void, as 
 
 l)eing unjust and unreasonahle. Remarks were nnide liy I'atter- 
 
 son, J. A., as to the principle and consiih-rations upon which the 
 
 validity of a variation of or addition to the statutory conditions 
 
 should he tested and determined.' 
 
 ) 
 
 251. Out. Ins. Act applicable to all insurance oontraots 
 whatsoever — In tlie statute 62 Vic. c. 32 (Out.) "• comi>any'" had 
 the same meaning as in the Ontario Insurance Act and then-fore 
 did not include societies not requiring a license for any contract of 
 insurance within the Ontario Insurance Act, before the passing ot 
 the Act. R.S.O. 1887, e. 167, sec. 2, (4) and 3. 
 
 The law now ^ is general and includes any c(ir}H)ration or 
 society, incorporated or unincorporated or any partnership, or any 
 underwriter undertnking to ettect any contract ot insurance within 
 the intent of the Act. 
 
 2Sla. Contract sierned outside of Ontario but governed by 
 statutory conditions. — A policy issued hy a company whose head 
 otKce is in Montreal, signed hy the president there and lounti-r- 
 signed hy a local agent in Ontario, where tlu' property insured is 
 sitiuite, is governed by the statutory conditions.' 
 
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 1 ;«i c. I'. .")!. •■' •>\) c. V. noH. 
 
 » Miiy V. StiiiKlnrii Firt' Iii.s. Co., 5 A. U. <K)5, rcfurrt-d to tiiijirii si lilU. 
 See also infni S -•V- 
 * Out. Ins. .Vet IStt?, («) Vic., e. lid, ». ID. 
 
 ' .Mcliityre v. .N'litioiml Iii«. Co. 44 U. O. Q. H. 'lOI. See iil.so tK) Vie., c. JW (O), s. 
 14:i. MHcleiinan, 5:i et seq. 
 
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 352 
 
 INSURANCB LAW OF CANADA. 
 
 1-- 
 
 But when tVie pniperty iiiHurod is not in Ontario, the statutory 
 conditions do not apply and the contruct is simjily wliat the parties 
 have entered into.' 
 
 252. All oontraots of insnranoe in Ontario to have con- 
 ditions get out in full — Where any insurance contract made hy 
 any cori»orution wliatsoever within tlie intent of the Ontario In- 
 surance Act is evidenced by a sealed or written instrument, all 
 terms and conditions of the contract shall be set out In* the corpor- 
 ation in full on the face or back of the instrument forming or 
 evidencing the contract.- 
 
 252a. Effect of non-compliance with above provision — 
 
 And if a term or condition is not set out as above, the liability of 
 the insurer is not thereby impaired, but tlie term or condition, 
 stipulation, warranty or proviso modifying the effect of the contract 
 and so omitted, is invalid and inadmissible in evidence to the 
 prejudice of the assured or the beneficiary.' 
 
 252b- Parallel provisions in Ins. Act of Canada. — The In- 
 surance Act of Canada,' contains parallel provisions respecting con- 
 tracts of life insurance. " No condition, stipulation or proviso 
 modifying or impairing the effect of any policy or certificate, of 
 life insurance issued after Ist January, 1886, by any company doing 
 business within Caiuida uniler the authority of the Parliament of 
 Canada, shall be good or valid unless such condition, stipulation or 
 l»rovis(t is set out in full on the face or V)ack: of the police." '' 
 
 In Vernier v. Sun Life Iiisnmnce. Oiiniiani/," however, the 
 [lolicy was issued " without conditions,"' but expressly " sur les 
 representations, conventions et stii»ulations lontenues dans la 
 demande pour cette police." These representations were proved 
 to be false in tlie most material particulars, and it was held that 
 the company never became bound under the ptdicy. For it was a 
 sufficient compliance with section 27 of the Insurance Act to refer 
 in express terms in the policy to the stipulation contained in the 
 application. 
 
 2520. Statutory conditions applicable to insurer and 
 assured. — Altliough 60 Vic. c. 36 (O.) s. 168 enacts that the sta- 
 
 • Cfimeron v. Canada Life Ass. Co.. O. R. 392. 
 •^«)Vic., c. 30, 8. 144. 'III. « R. S. C. f. 124, H. 27, 28. 
 
 • As to the coDstitutioniility of this provi.'^ion see nupr'i S HS. 
 aad reported infra § 2Slb. 
 
 « 17 S. C. R. im, 
 
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 CONDITIONS OP POLICIES, ETC. 
 
 353 
 
 tutory coiulitions ahull he deemed to form part of the contruct aw 
 aguiiiBt the insurer, it bus heen held in Queen v. Parsons^ that 
 tliey apply hotli aw against the eonipaiiy and as against the 
 assured. 
 
 253. Conflict or ambiBoity in conditions— Constmotion 
 contra proferentem. — In the case of anil»iguity in the contract 
 the construction most unfavorable to the insurer will be adopted, 
 and properly, for by universal custom it is tlie insurer that pre- 
 pares the contract and furnishes the language used.- 
 
 " No rule in the interpretation of a policy is more fully estab- 
 lished or more imperative and controlling than that which declares 
 that, in all cases, it must be liberally construed in favor of the 
 insured, so as not to defeat without a plain necessity his cluini to 
 the idemnity, which, in making the insurance, it was his object lo 
 
 >' :t 
 
 secure. 
 
 254. Conriition in application in small type ; calc-^iiated to 
 elnde observation. — In the application for insurance prepared l>r 
 a company there wai inserted in very small type a notice thjit the 
 estimated value of personal property and of each builditig to be 
 insured "must be stated eejiarately," etc., which had escaped the 
 notice of the applicant, and such separate valuations, etc., were not 
 given. 
 
 The Court being of the opinion that although this provision 
 might not have been framed in order to elude obscsrvation it was 
 certainly calculated to elude observation, refused to give the in- 
 surers the benefit of it, if under the circumstances it would have 
 (•perated in their favor.* 
 
 255. Condition of policy as to quantity of grunpowder 
 allowed. — The plaintiff applied for an int-urance upon his stock- 
 in-trade with the defendant company. Pending the negotiations 
 the company's agent told the plaintiff he thought the company's 
 condition was to allow twenty-five pounds of powder to be kept, 
 and the plaintiff said he did not keep more than ten pounds. The 
 insurance was then effected by an interim receipt, and on the same 
 night the premises were burned. 
 
 ' 7 App. Cas. 90, nnd referred to sujna § 249a. 
 » Cooke, Life Ins. 3. ' May 175, and infra g 'IM. 
 
 * (Jreet v. Citizens' Ins. Co. U7Cliy. \t\, imd see Sinitli v. City of London Ins. Co. 
 11 O. K. ;«, 1.1 S.C.K. JO ; Coclcburn v. British Am. Ass. Co. 11) O. H. 245. 
 
 23 
 
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 TNSUHANCK X.WY OF CANADA. 
 
 
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 The |iliiii\tirt liiul more thiiii ton poiiiuls. hut less tluiii twciity- 
 tivi' poiiiids ot' jiowiKt in stock wlii'ii tlif tiro (icciirn'tl. Tln' 
 statutory ooii.litioii proliibitod iiioro tliiiii fwonty-Hvo iiountls l)oii)if 
 kopt ill stock witliout piTinissioii, ;unl tlio coinpiiiiy"!* Viiriation of 
 tlicir coiitlitioii roliovi'd tlioni from lialiility it' iiioiv tliaii ti'ii 
 poiiiiils wci'o •• deposited on tlio proiiiiscs, luiloss the saim- ho spo- 
 i-ially aliowod in tlio body of tlio policy and snilahio extra pn'iiiiinn 
 he paid." 
 
 'Pile case liavinu; heeii dealt with on other iiTomids, on an aii- 
 peal to 'he I'rivy Council, was remitted to this i-oiirt to try whether 
 the variation of I he condition was a jiist and rcasonalile one. 'I'lie 
 jiidiTo at the trial found it to lie roasoiiahle : — 
 
 Held. Ilaijai'ty. t'..l., dissenting', that under the circuinstancos 
 of this case, inasmuch as the company's ae'cni had roprost^ntod 
 that twenty-live pounds ol ji'umiowder were allowed to he kept in 
 stock, the ciuiditiou now insisted upon was not a just and reasoii- 
 ahlo one to he set u[» l)y the company, or one which they couhl 
 have inserted in tlu' policy, and was theroli>re void, and that the 
 plaintid should ri'cover. 
 
 Tor Armour,.!. — The condition heiiiii' more oneriuis than the 
 statutory condition rolatinn' to the same suhject matter, was tor 
 that reason to he deemed not just or rcasonalile. 
 
 Per llai--arty, ('. .)., and Clalt, -I. — Tlu" variation was not 
 iKH'cssarily unjust or iinreasonalile. I'er llayarty. ('. .1. — Tiic 
 statutory condition exom[tti!i_u; the company from liahility if more 
 than twenty-live pounds of u-unpowdor were kept without permis- 
 sion, doi's not prochido or prcdiihit the insurers from liarpiiniiiii' 
 that tlioy will not he liahlo if more than ton pounds he kept, except 
 on eortaiii conditions as to extra proniinm, etc.: and as the plaiiitiH 
 at the trial did not in his evidence mention the representation ot 
 the ai>vnt, or alU'U'c that it intluonceil him, and it w;is not relied 
 u|ion there, it sliouhl not now he n'ivon eflect to.' 
 
 255a. Condition as to loss by explosion Gunpowder ex- 
 plosion. — ,\ policy of insurance ati'ainst lire I'ontained a condition 
 that "the company will make e-ood a loss I'aiisod hy the explosion 
 of coal n'as in a hiiiMiiie,- not forminu: l">''f <d'u,'as works ami loss hy 
 fire caused hy any other explosion or hy liijhtninn"."' A loss oc- 
 oiU'i'od hy the droppinu,' of a mati'li into a koij' of liun powder on thi' 
 
 ' I'lU'Miiis V. l,)ui'cii liiH. Co. U O, |{. in. U.II.n,. rcrcricil 111 siiimi i lilH. 
 
if TlfTVW^T 
 
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 t'ONDlTIONS OK I'nMl'lKS. ETC. 
 
 asf) 
 
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 it "nm 
 
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 proniisi's insiiriMl, till' (lamiitjc lu'iiit"- |>artly occasioiuMl Ity t lie ex- 
 plosion of llio t^iinpowdor si'ttiiiu; tin' to the stotk iiisurotl. Tlio 
 I'oiupaiiy admitted their lial)ility for the daiuage eaiised hy fire, 
 hut not tor that eausi'd hy the explosion. 
 
 Held, reversiiii;- the deei>ioii of the (.'ourt of .Appeal,' whieh 
 atHrmod the deeisioii of the CMM).- and the li.U.D.' Tasehereau, 
 d., dahilitntc. that the euiiipaiiy wiTe not exi'iiipt hy the eoiidition 
 in the poliey iVoni theliahility t'ordaniaire eansed hy the explosion. 
 
 255b. Condition as to quantity of sunpowdor allowed - 
 Insurance of a steamer against fire— Policy issued on form used 
 for insurance of buildings.— In an aetion on a poliey of iii<iirani'e 
 aii'ainst tin', entere<| into l>y ihe aii[H'llants as flu' insurers, and the 
 respondents as tin' insured, in resjteet of a steam vessel, deserihed 
 as plyinu' hetwi'en t^uehee and the Ufiper hakes, it appeared that 
 a I'orni of policy hatl heen used whieh was pro[ierly applieahle to 
 insuranee of houses or huildin>i's ; and aniiun'st olln'r eonditions on 
 the policy was one, " that it niore than twenty pounils weiii'lit ol' 
 ii'unpowder shotdd he on till- premises at the time when any loss 
 liappi'iied, such loss should not he niatle ii'ood." The ship was 
 destroyed hy lire durinu' the continuance of the policy. It was 
 usual for these steamers to cari'y u'unpowder as freiii'ht, and at the 
 lime the vessel was destroyeil there was 100 pounds wciji'lit ot' 
 li'unpowdcr on hoard. 
 
 iield. that the words "premises" tliouuh in popular lanniiaue 
 iipjilied to huildiiiLis, yd, in le^al lanunau'e, meant the suhject or 
 I hint!,' pr<'viously expressed, and that the i|Uestion heinii', H"' what 
 was the inleiiiion ol' the parties, hut what is the mi-aninu' ot' the 
 W(U'ds they havi' used, the n-asonahle construction of the I'ontract 
 was that the vessel shoidd not can-y more than twenty pounds 
 weiii'ht ol' y'unpowdcr.' 
 
 255c. Condition of policy as to gunpowder being kept with- 
 out consent. — Tin' insuraiM'c. as expre-scd on the face of a pofu-y, 
 
 was upon "liic n'cui'ral >tock of nicrchandisc. consistiny ot' dry 
 H'oods, clothini;' ami uroci'ries."" Ity a printed clause of the policy 
 it was [irovideil that it should he void if the assured should keep 
 yun[iowder without the written con-cnt of tin' insurers endorsed 
 
 ' II A.H. 7i:i. -TO.II. (U:i. ■so.ij, :n:i. 
 
 * llolilw V. Niiilh Am. Ahs. I'o., luul sec Mlli'lii'll v. ('il\ nf I.Diidon l'"lii' Ins. (H. 
 liiD.lt. Tail, .iii'l il.i. vs, (iuiirilian Fin- iS: I.ilV \h><. Co. ol' l,.)iiilnn IJS.C.W, i!:i|. 
 "' I'rlvy Ciniiii'll. IViiron V\\x' &. I.ilV Itr . Co. v. Cit)li, 1.") .Modiv's I'. C. Hep. 7:', 
 
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 356 
 
 INSURANCE LAW OF CANADA. 
 
 m 
 
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 on the policy. The defence was that the policy had been avoided 
 by a breach of this condition. 
 
 The keeping of the gunpowder without the written consent 
 was admitted, but it was contended that keeping gunpowder in 
 stock did not avoid the contract ; first, because it was the custom 
 of the merchants of the class of the assured to keep the same, and, 
 secondly, because gunpowder is embraced in the words used to 
 describe the goods insured, and, being so included, there is a writ- 
 ten consent or authority on the face of the policy that it might be 
 kept. 
 
 The Supreme Court of Mississippi thus delivered itself upon 
 the proper construction of such policies, after considering tlie cases 
 brought to their attention : "The language, where ambiguous, is 
 to be construed most favorably tor the assured, and where general 
 words of description are used it is competent to show what is in- 
 cluded in them in the usual course of business, as what is ' a gen- 
 eral stock of merchandise,' or * such goods as are usually kept in a 
 country store,' or the 'stock in trade of the assured,' etc., etc. 
 "Where there is a conflict between the written and printed parts of 
 a policy, the written will prevail, and, therefore, where by a printed 
 clause, the keeping of certain articles is prohibited, but articles 
 are embraced in the fair import of the words used in describing 
 the goods insured, the keeping of such things dots not avoid the 
 policy ; but where, by the printed clauses, there is a prohibition as 
 to certain articles, and the written parts of the policy do not em- 
 brace the prohibited things, then no usage or custom can be re- 
 sorted to to add to the terms of the contract an implied permission 
 to deal in the i>rohil)ited articles. Where, following general words 
 of description of the property insured, there are words of restric- 
 tive enumeration, such as ' consisting of,' ' composed of,' such or 
 such goods, those things which, but for the limited words, would 
 luive been included in the general description, but are not included 
 in the restricting words, are excluded. Thus, if in this case the 
 insurance had been ui»on 'their general stock of nierchaiidise,' the 
 assured might have sliown what composetl such general stock, and 
 what was understood to lie included in it by usage and custom ; 
 and if ' gunpowder" was a part of such stock, then it might have 
 been kept by them, althougii l»y a [»rinted condition of the policy 
 jt was prohibited. But the written clause of the policy insures not 
 the general stock, but that 'consisting of dry goods, clothing and 
 
CONDITIONS OF POLICIES, ETC, 
 
 357 
 
 groceries,' and these words exelude all things not heing ' dry goods, 
 clothing or groceries.' It devolved, therefore, on the assured to 
 prove either that the insurer had waived the condition of this 
 policy, or that gunpowder was ' dry goods, clothing or groceries,' 
 within the fair import of these words as used hy the contracting 
 parties, to discover which resort may he had to the usages and cus- 
 toms of trade by which a narrower or broader meaning may be 
 affixed to them. . . . The enquiry in this case shoulil have 
 been whether gunpowder was included in the words used in the 
 policy describing the stock insured." ' 
 
 256. Condition that agent be regarded as agent of the 
 applicant. — A clause in the application stating that the agent of 
 the company tilling up the application should be regarded as the 
 agent of the applicant is not, by reason of its being made part of 
 the policy, a condition thereof, and subject to the determination of 
 the judge as to whether it is just and reasonable ; and if it were it 
 is not unreasonal)le.-' 
 
 257. Condition as to non-payment of premium note— Omis- 
 sion to fill up blank date — A premium note dated the 24th ^^ay, 
 1880, given on ettecting an insurance with the defendant's company 
 stated that the insured for value received on policy No. 1.405 
 dated the 6th May, 1880, promised to i)ay the company §14.50 <ui 
 the 24th of Deceml)er, 1880, with interest at seven per cent., and 
 contained an agreement that if the note were not paid at maturity, 
 the whole amount of the premium should be considered as earned, 
 and the policy should be null and void so long as tlie note remained 
 unpaid. 
 
 Upon the policy, which was dated the 14th May, 1880, and 
 took ertect from the 24th May, 1880, was endorsed a variation 
 condition that the policy should not be valid or binding until the 
 premium was actually paid, uidess credit was given for it ; and in 
 that case it was a condition of the contract " that if such [)remium 
 
 be not paid 18 , the whole amount of premium sh.dl then 
 
 be considered as earned, and the policy sliili be null and void, so 
 long as any part thereof remains unpaid."' The application, whieb 
 was made a part of the policy, stated that the [iremium was due 
 on the 24th December, 1880 :— 
 
 ' Liverpool & London & Globe Ins. Co. v. Van. (). S. {imh (l:i Mis». 4.'M. 
 ■ .Sowdeii V. Stiindiird Kiro Ins, Co.,'> A. R. :ilH). .See also Qninliin v, I'nion, S 
 A. U. it7U, and nee iii/ra ^i 1174 and 45.*). 
 
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 358 
 
 INSURANCE LAW OF CANADA. 
 
 Held, that the omission to fill up the blank in the condition, 
 did not prevent its operating, for the condition would be perfett 
 without the figures " 18," which might be rejeeted as surplusage ; 
 but that the condition could be reformed by inserting the words 
 and figures evidently intended — namely, the 24th December, 1^80 ; 
 or might have been filled up b}- the parties : — 
 
 Held, also, that the condition was not unreasonable, being in 
 effect the same as that provided for in the case of mutual insurance 
 companies by R.S.O. (1877) c. 161.' 
 
 257a. Condition as to non 'payment of premium note— Uni- 
 form Conditions Act not applicable to mutual companies.— 
 
 Under the statutory conditions endorsed on a mutual fire insurance 
 policy the words, prescribed by section 4 of R.S.O. (1887), c. 162, 
 except the heading, " Variations in conditions," were printed in 
 ink of a slightly ditferent colour, but in the same sized type, and 
 after certain conditions varying the statutory conditions, and under 
 the heading, "Additional conditions,'' there was the following eon- 
 dition in type of the same size and colour. "In case any promis- 
 sory note for a cash premium or for any premium note * * 
 given to the company, or to any officer or agent thereof, be not 
 paid when due, the policy =* * shall be null and void, and the 
 company shall not be liable tor any loss occurring either before or 
 after the maturity of such promissory note,'' The note in this 
 case, i)ayable to defendants' agent or bearer, for $12, the first pay- 
 ment on the premium undertaking, which was for $15. 62, fell due 
 on the 15th of April, 1878, and the loss exceeding the amount 
 insured $500, occurred on the 23rd of March. This note was not 
 paid, the jtlaintitl' alleging that ho omitted to pay it, assuming that 
 the defendants would deduct it in settling the loss, which had not 
 been adjusted : — 
 
 Held, that the Unilorm Conditions' Act, R.S.O. (1877),- c 162 
 (excepting section 2), does not apply to mutual insurance com- 
 P'.inies ; but tiuit if it did the condition would inive b.^on I'learly 
 void for non-compliance with sec'^ion 4 of that .\ct : — 
 
 Held, also, reversing thejudgnu'nt of the Queen's Bench, 44 
 Q. B. 70, that the condition was not just or reasonable, as it was 
 recpiired to be by the express contract, and by section 35 of the 
 Mutual Insurance .V-'t, R.S O. (I>i77). c 161 ; and that the plaintifi 
 
 I ScaiM V. AvrriiMiitiir.il Ins. Co., ;i'J C. 1\ r)S.j.-t', I'. 1). 
 
CONDITIONS OF POLICIES, ETC. 
 
 350 
 
 was ouritlod to recover. The reasonableness of a condition is to 
 be tested witii relation to the circumstances of each case at the 
 time the policy was issued. But qniere per Moss, C. J. A., whether 
 in the abstract such a condition could be regarded as reasonable, 
 and per Patterson, J. A., it could not. Per Patterson, J. A., the 
 condition was also unreasonable, because more stringent than the 
 statutory provisions upon the same subject, section 48 of the 
 Mutual Act. Cjuiere, whether this was a note whicii the company 
 had power to take, or one within the conditions.' 
 
 253- Condition as to time of payment of loss — There are 
 several Ontario decisions upon variation of the statutory condition 
 as to time within whit ^ loss is payable." 
 
 259. Condition as to alienation of property, traasfer, levy, 
 etc. — By a condition in a policy of insurance additional to the 
 statutory conditions, it was provided that '' when propert}' insured 
 
 ^ * or any part thereof shall be alienated, or in case of any 
 transfer or change of title to the iu\)perty insured, or any jiart 
 thereof, or of any interest therein without the consent of this com- 
 pany indorsed hereon, or it the [property hereby insured, shall i»e 
 levied ui»oii, or taken into possession or custixly under any legal 
 process, or the title be disputed in any proceeding at law or e(iuity. 
 this policy shall cease to be binding upon the company'". — Held, 
 afHrming the decree of Proud foot, V. (_'., (2(.)Chy. 115), that such 
 condition was not Just or reasoiud)le, and that it was not binding. 
 
 260. Conditions of policies of Engrlish fire insurance com- 
 panies in Quebec. — The following arc in eti'ect the conditions mid 
 stipulations adopted by English tire insurance companies in the 
 Province of Quebec, and which according to the policy consti- 
 tute the basis of the insurance : — 
 
 I. Desi'i'iptiiii) <if lu'ii/iert;/ iitsnrcd. — l^jion tlic Insurance of uny 
 Property, whether Ituildings or (toods — in which word (tmi'ls, as 
 here and hereinafter used, is iiu'luded Wares nnd Mcrclian(Iis(>, 
 
 I H '.ll;»«li V. PiViil Miiliiiil I'iri' III.-. Co.. ."i A. Ii. s", rt'fcrri'il In Kii/ini S JI7. 
 
 - Si't' Siiiitli V. Ciiy III I, iiulnri Ills, Co.. 11 A.l{. itJ-^ : 1.") .S, r. !{. tii), p. HTl : I'coriii 
 SllKiU- UollliiiiKCo. V. Ciiiiiula F. iV .\I. I. C. 12 A. 1!. 11>-', \>. 'Mt). «<>m' .Miiy v. St.iml 
 aril !■'. I. C. "> A. U. tiOr>. p. till ; liiMliain v. Ontario .M. I. C, 1 1 ().,I{. :i."iS, pp. !i:>|, !t.-)!i ; 
 Rodiiick V. S:ur,'i't'ii .M. I. C, ]r> A. If. ;)il:l, p. iCCi ; Peck v. AjiriciiimiMl Ins. Co., I!) 
 O. K. l!'l, p. '.•.Vi. 
 
 " Siinils V. Sliind.ird Iii-.. Co.. llT (Srant Cli.v. 1(17. C'lv. 1)., rcfiTi'i'd \o sii/ini 
 S 'Jlitii and :iii:f. 
 
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 860 
 
 INSURANCE LAW OF CANADA. 
 
 Furniture and other movable eftocts — deposited therein, the party 
 or parties niakins? tlie same shall specity of what materials the 
 Walls and Root's of such Buildings are respectively constructed, 
 where situated, and by whom occupied ; and whether as private 
 Dwellings or how otherwise; whether any manufacture or Hazard- 
 ous Trade be carried on, or anj* Hazardous Articles ])e deposited 
 or kept therein, and if so, shall describe the nature and qualities 
 thereof; wliether any Steam Engine, Furnace, Kiln, Stove, Coakle, 
 or other Apparatus whereby heat is produced (common Fire 
 riaces. Stoves and Ovens for domestic use excepted) be erected on 
 the Premises, and if so, shall give a particular description of the 
 nature and constructioi\ thereof respectively : and if such specifica- 
 tion do not truly and circumstantially describe the Property, and 
 the several particulars regarding the same as aforesaid, so that the 
 nature and degree of the risk may be justly estimated, the Policy 
 and Insurance thereon shall be null and void. The Insurance on 
 any Buildings shall not be held to include anything outside there- 
 of, such as Clapl)oarding, Blinds, Galleries, Porches, apjientis, 
 Sheds and other Buildings, except the same be specially men 
 tioned, and valued in the Policy ; no Furniture usually denomin- 
 ated Fixtures, Machinery or other leijal or rnnsfniotire i mmovahles, 
 or Shop, or Store Fixtures and Furniture, contained in any Build- 
 ing, shall be held to l)e Insured, as appertaining or belonging 
 thereto, except such fixtures shall be specially named in the body 
 of the Policy. 
 
 II. Clxingc ill lisl: to he iiofitied. — In case any alteration or 
 addition be made in or to any Insured Building or other Property 
 (whether such alteration or addition do consist in the erection of 
 Apparatus for Producing II eat, or the introduction ol' Articles 
 more hazardous than nuiy bo allowed in the Policy, or in a change 
 in the nature ot the Occuiiation, or in any other change whatso- 
 ever, by which the degree of Risk is increased, and a consequent 
 additiotnil Premium would bi* required), and the Insured shall not 
 have given notice thereof respectively to the said Company or it- 
 Agents, in writing, and unless such alteration or additiitn be 
 allowed by endorsement on this Policy, and such increased Pre- 
 mium paid as may be required, such Policy and Insurance shall be 
 null and void. 
 
 III. Oirncrship ()f proprrf//. — This Policy will cover oidy such 
 of the Property described in it as shall l)i' proved to have been at 
 
'■ M 
 ill 
 
 CONDITIONS OF POLICIES, ETC, 
 
 361 
 
 'd 
 
 the time of the alleged loss or damage by tire, the Property, bono 
 fide, of the Insured ; unless it shall he specially described as being, 
 by the Insured, held "intrust," or '*on commission," in which 
 case the name of the party for whom, and the purpose for which, 
 it is so held in trust or on commission, must be specitied in the 
 description. 
 
 IV. Prepmiment of premium. — Xo Insurance shall be conclu- 
 sive or binding on this Company unless the Premium be previously 
 ()aid thereon ; and persons desirous of continuing Annual or other 
 Periodical Assurances must pay their respective Premiums thereon 
 on or before the commencement of each succeeding year, or other 
 periodical Term, otherwise such Insurance will expire ; and the 
 only evidence of such Payments shall be the Printed Receipts 
 issued from the Oflice, and witnessed by one of the Clerks or 
 Agents of the Company. 
 
 V. Pi'di'ess involvin(j opplicnfion nf fire heal. — This Company 
 will not be answerable for any Loss or Damage to Stock or Goods, 
 or other Property, whilst undergoing any process in which the 
 application of Fire Heat is necessary. 
 
 VI. What policii does not cover. — Pooks of Accounts, written 
 Securities, Money, Bank or Government Notes, and Gunpowder, or 
 other explosive substance, will not be Insured or comprehendetl in 
 any Insurance ettected by or with this Cc^mpany : nor will any 
 Loss or Damage in any case or of any description be made good 
 Avhere more than twenty-five pounds weight of Gunpowder or 
 other explosive substance shall be depositeil or kept on the prem- 
 ises, unless the same be siteciallv allowed in the bodv of the 
 Policy; but this Company will make good Losses on Property 
 burnt Ity Lightning, except on Buildings having Spires or Steeples 
 without metal Conductors, provided it is not otherwise agreed 
 upon in the body of the Policy. 
 
 VII. What propertii muM he particnlarhj specified. — Watches. 
 '^IVinkets, Jewels, Pearls, Plate, Musical Instruments. Pictures, 
 Prints and Drawings, Medals, Coins, Sculpture, or other Curiosi- 
 ties, will not be included in any Insurance ettected by this Com- 
 pany, or be covered thereby, unless the same be particularly speci- 
 tied in the Policy ; nor shall any Picture, Print or Drawing, even 
 though mentioned as Insured in this Policy, be covered for more 
 than Forty Dollars, unless a specific amount be named thereoji. 
 
 VIII. Other inmrance — Option to cancel. — Xotice in writing. 
 
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 liU '! 
 
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 ll: .1 
 
n': Wr-^' 
 
 362 
 
 INSURANCE LAW OF CANADA. 
 
 of any other Insurance alread}', or to l»e, oftoeted with any other 
 Insurance Company or Companies, on the within Insured I'rop- 
 erty, or any part of it, shall he given to this Company, wlio shall 
 then have the right either to endorse hereon a memorandum of 
 such other Insurance, or forthwith to return the Premium for the 
 uiiexiiired term, and eancel this J'olicy. If this Company endorse 
 such other Insurance hereon, then this Company shall I'ldy cuii- 
 trihute rateahly with the other Company or Companies in maWng 
 good the Loss or Damage sustained hy tlie Insured. The want of 
 notice, in writing, hy the Insured tct this Company of any other 
 Insurance on the within Insured Property, or on any part of it, 
 shall, ipsa facto, render the Policy void ; in case of the Insured 
 holding any other Policy on Property in the Premises within 
 described subject to average, then this I'olicy is declared to be 
 subject to average in like manner. And, further, should the Risk 
 be increased by the erection of buildings, or by the use or occupa- 
 tion of neighbouring premises or otherwise, or if for any other 
 cause the Company shall so elect, it shall be optional witli the 
 Company to cancel this Policy, after notice given to the Insured, 
 or his representative, of their intention so to do ; in which case 
 the Company will refund the Premium for the unexpired time. 
 
 IX. Deat/i III' Inwlveiici/ of (he insured — Hemuval — Transfer uf 
 interest of pulici/. — At the death ov at the insolvency (under an 
 Lisolrenc)/ Act) of the Insurod, and on returning to his legal repre- 
 sentative or assignee the Premium for the unexpired term, it shall 
 be competent to this Company, either to cancel this Policy, or, by 
 endorsement, to continue it in force. The Insured removing his 
 Insured goods, or other movable eiiects, may retain the benetit of 
 this Policy on the same, if the Risk be not increased, and the 
 removal be contirmed by the Company's ei\dorsement hereon, 
 Tlie interest oi' this Policy may be transferred by Endorsement, 
 made with the written consent of the Company ; — but not other- 
 wise. 
 
 X. y<ifi)r iiikI jiroofs of loss — Profil not insiii'i'd — Frutidnlent 
 i-hiim.s. — On the happening of any Loss or Damage by Fire, the 
 Insured shall foi-thwith give notice thereof, in writing, to this 
 Company, or at the ( )tKce of the Comi>any's Local Agent through 
 whom the Insurance wasetfected ; and the Insured shall also, within 
 fifteen <lays at the latest atter tlu' tire, deliver to this Com- 
 pany, or its Agent, as accurate and jjarticular an account of 
 
 i 
 
 
 aHB 
 
( 
 
 ' ■— 1 
 
 
 1; 
 
 CONDITIONS OF POLICIES, ETC. 
 
 363 
 
 his Loss and Pamnge, respectively, supiiortod by vourhcrs, 
 and. in the ca^c of huildings and machinery, by certifii-ates, 
 on oatli, of practical architects or builders and mechanics, as 
 the nature and circumstances of the case will admit of, and 
 shall verify the same by solemn oath or affirmation before a 
 Justice of the Peace or Commissioner for taking Affidavits, and 
 shall produce such other evidence as the Compan\" inay reasonably 
 require ; and unless such particular account and such vouchers, 
 certificates and other evidence shall be produced within the speci- 
 fied time, the amount of the Loss or Pamage, or any part thereof, 
 shall not bo payable or recoverable. No profit of any kind shall 
 be included in tlie Claim of the Insured ; and, if there appear to be 
 any fraud, over-charge, imposition, or false-swearing, or if it appear 
 that the fire happened by procurement or wilful act, means or con- 
 nivance of the Insured, or of the person or part}' claiming under 
 him. or of his Representative, he, or such other person or party, 
 phall, ipso facto, l»e excluded from all lienefit under this Policy. In 
 the event of partial Loss or Pamage, the Insured shall, liy separ- 
 ating the damaged from the undamaged, and otherwise, assort and 
 arrange in as good order as the circumstances of the case will ad- 
 mit of, the uiidestroyed part of the Insured stock, and goods, so as 
 to facilitate the taking of an accoinit, and the estimating the value 
 of the same. 
 
 XI. Loss payable irithii) sixft/ days after adjustinent — Rehtstate- 
 meid — Ahaitdomnent — Omrvahiatvm. — On due proof being made by 
 the Insured of any Loss or Pamage by Fire, and on the adjustment 
 of account thereof, and the acceptance and approval of the same by 
 the Pirectors of this Company, the amount of the Loss or Pamage 
 shall be paid within sixt\' days after such adjustment, acceptance 
 and approval ; or when the Insurance is on goods, this Company 
 may, at its option, rcplai'C such of them as were destroyed and 
 damaged, by an e^ual quantity of like kind, (juality and value ; 
 and when the Insurance is on a house or other building, or on a 
 steam or other engine, or on machinery, this Company may, at its 
 option, with all convenient speed, rebuild or replace, or repair, re- 
 instate or restore ainl put the same into as good and substantial a 
 condition as they were when the fire happened. The insured shall 
 not be permitted, either ;it the time of the fire or al'terward, to 
 abandon any of the Insured movable [iroperty, without the con- 
 sent of the Company. If, in his application for the Insurance 
 
 
 ^dtttii 
 
 Pll 
 
 1 
 
 r:i 
 
■ i >} 
 
 364 
 
 INSURANCE LAW OF CANADA. 
 
 effected by this rolicy. tl»e iDsured shidl have overstated the vahie 
 of the pro[)erty Insured, he shall, in ease of Loss or Damage by 
 Fire, be only t-ntitled to Claim for such proi»ortion of the actual 
 Loss or Danuigo aa the sum of money Insured bears to the value 
 stated in the application. But if the overstatement shall have 
 been made fraudulently, or with a fraudulent intention, then all 
 benefit to tl e Insured under this Policy shall, ij).su facto, be, and be 
 held to be, forfeited. 
 
 XII. liemoval of i)roj>er(i/ hi case if c<nij{a(/raliiiii — Pro/ierhj lijf<( 
 or stolen. — In case of the nece.s.sary removal of the Insured pro- 
 perty, to save it from conflagration, this Company will eontril>ute 
 rateably with the Insured, and, if there he i»ther Insurances, with 
 the other Companies whose Insurjvtices may be hereon endorsed, 
 to the Loss and Kxpenses attending such Act of Salvage, but this 
 Company shall not be held liable for any Loss or Damage of or to 
 property removed from any building (not actually on fire), either 
 contrari/ to the order or direction, or without the order or sanction, 
 of the OfHcer or Agent of this Company, who may be present at 
 the fire, and in a situation to be consulted by the Insured ; nor 
 shall this Com}»any be liable for any goods or other movable efiects 
 that may be lost or stolen either at, during, or after the fire. 
 
 XIII. GmditioH as to chimneys, etc. — The Comi)any will not be 
 answerable for any Loss where Fires are used in HuiMings unpro- 
 vided with good and substantial Brick or Stone Chimneys, or in 
 consequence of Stoves or Stove Pipes i»laced or used contrary to 
 law, or in conseipience of the infringement of any law in force for 
 the suppression or prevention ttf Fires, or where Stove Pipes are 
 carried tlirough the exterior walls or roofs of any House or liuild- 
 ing ; or for any Loss by Fire in any Building under construction 
 or repair ; or movables therein, wherein Carpenters and Joiners 
 are emi>loyed, unless the special consent of the Company be first 
 obtained and endorsed on the Policy. 
 
 XIV. Officers or aijenls not per.ioiiallif responsible. — The !Mana- 
 ger or Agents of the Company shall in no case be made personally 
 responsible on account of any Legal or othei Investigation, which 
 they may find it neeesrary to institute for the satisfaction of flu- 
 Comi>uny, nor shall their personal Property be attached on account 
 of any alleged Loss by the Insured. If the Insured should com- 
 mence such proceedings against the Manager or Agcuit, it is hereby 
 ♦leclared and stipulated that the said Insured shall forfeit thereby 
 
'Ml 
 
 CONDITIONS OK POLICIES, ETC. 
 
 365 
 
 all claim upon the Company tor Loss or Damage snstainotl, and 
 shall, moreover, be responsible tor all expenses which shall accrue 
 in consequence ofhis proceedings. 
 
 XV. Action offuinst the eompan>/ tu he ctnnmcnced irit/ii)) tirclrc 
 iiHiiiths after Ims. — It is furthermore hereby expressly provitlctl 
 that no suit or action of any kind against the siiid Company, tor 
 the recovery of any claim u{)on, under, or by virtue of this Policy, 
 shall be sustainable in siny Court of Law or Chancery, unless such, 
 suit or action be commenced within the term of twelve months 
 next after the Loss or Damage shall occur ; anJ in case any suit or 
 action shall be commenced against the said Cor:pany, atter the ex- 
 piration ot twelve months next after such Loss or Damage shall 
 have occurred, the lapse of time shall be takiMi and deemed as con- 
 clusive evidence against the validity of the claim so attempted to 
 be enforced. 
 
 XVI. Arhitnititm. — If any dift'erencc or dispute should arise 
 between the Insured and this Company, touching any Loss or 
 Damage by Fire, such difference or dispute shall not, unless this 
 Company require it, be made a subject of litigation, but shall be 
 settled by a reference of the matter or matters in dispute to the 
 judgment and determination of two disinterested Arbitrators, one to 
 be chosen by each party, and the written award of such Arbitrators, 
 or of an Umpire to be chosen by them, either Ijefore or after they 
 shall have commenced their Investigation, shall be conclusive and 
 binding upon both parties, any legal decision, or any law or usage, 
 to the contrary notwithstanding. The expenses of every such Arbi- 
 tration shall be borne equally by the Insured and this Company. 
 
 XVII. Notices 1)}/ insured to he in writin(/, — No Notice required 
 by any *)f the above conditions, to be given by the Insured to the 
 Company shall be deemed sufficient, unless it be given in writing, 
 signed by the Insured or the lawful Agent or Representative of 
 the Insured, and delivered to the Maiuiger or other authorized 
 Agent of the Company. 
 
 XVIII. Endoi sewevts to lie diibi approved. — No transfer, alter- 
 ation or endorsement of or upon this Tolicy, by or on the [tart of 
 the Insured shall have any force or effect whatever, unless and 
 until it has been duly apju'oved by the Directors, or the Manager 
 or the Local Agent of tliis Company, and recorded in the Head 
 OiRce at Montreal; but if the approval be by the Local Agent, the 
 Directors shall have the right ot disallowing it. 
 
 Milil 
 
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 366 
 
 INSURANCE LAW OF CANADA. 
 
 U", 
 
 mm 
 
 XIX. Beports of (•ompa})>/\s officers or aijents vpon losses to Itr 
 coiijitlential. — Tlie Reports of the Company's Inspectors, or othor 
 Officers or Agents, to the Directors or Manager, in relation to any 
 alleged or actual Loss or Damage by Fire, shall, in every raso, he, 
 and he held to he, strictly eontidential. 
 
 XX. Wa'iver of eonditions. — No one of the ahove Conditions, 
 either in whole or in part, shall ever hi- deemed to have heen 
 waived, hy or on the part of the (Company, mdess the waiver hv 
 clearly expressetl in writing, signed hy the Cohipany's Manager, 
 and delivered to the Insured or to the lawful Agent or Represen- 
 tative of the Insured. 
 
 260a. Conditions of fire insurance policies in use in Great 
 Britain.— 
 
 1. Material iins-description. — Any material mis-descriittion o! 
 any of the property' expressed to l)e herehy insured, or of any 
 Ituilding or place in which an}' such ])roperty is contained, or any 
 mis-representation as to. or omission to state, any tact material to 
 he known for estimating the risk, renders this policy void as to the 
 property affected hy such mis-description, mis-ri'presentation or 
 omission, and any mis-s^tatement in answer to ijuestions juit hy or 
 on hehalt of the company on the proposal for the insurance renders 
 this policy void. 
 
 2. Suhsri/iievf Incrmse <f risi: — /{rtiinriif. — If, after the risk 
 has heen uiulertaken hy the company, anything wlureliy the risk 
 is increased he done to, in. or upon, imy of the jiroperty herehy 
 insured, or to, in, or uiion. any huilding or [ilacc in which property 
 hereby insured he removed fronj such l)uildiiig or place \.ithout,in 
 each and every of such cases, the assent or sanction of the company, 
 signified by endorsement hereon, the insurance as to the jiroperty 
 affected ceases to attach. 
 
 3. What the jioliri/ ilors not i--irrr. — This policy does not cover 
 unless the same 
 
 .p. 
 
 1' 
 
 (") 
 
 held in trust or on commission. (//) China, trlass, looking glasse^ 
 
 Is, clocks, watches, trinkets, medals, curiositic! 
 
 jewels, clocks, watclies, trniKets, medals, curiosities, manuscripts, 
 government stamps, engravings, [»riiits, paintings, drawings, tajies- 
 tries, sculptures, musical, mathematical or philosophical instru- 
 ments, (e) Patterns, models, moulds, designs, (il) Gunpowder or 
 other explosives. 
 
 (e) Deeds, bonds, hills of exchange. [ romis.-ory notes. 
 
 m 
 
CON'hITIONS OK I'OlilCIES, KTC 
 
 :^»J7 
 
 I'liLMjuort, nu>iu\v, soouritics tor money, (loouiiionts of titl(> to ijoods, 
 rontracts, orotlicr docmiu'iits, hooks of iU'coiint ; 
 
 U) Loss or (lainiiti'c to [troiicrty occasioia-d l»y or ha|i])i'iiiiitr 
 tliroiiijh its own siioiitaiii'oiis fi'rincntatioii or lioatiiig ; 
 
 (//) Loss or (laiiiaifc occasioiK'tl hy or liappt'Tiitiij throuj^li 
 t!art!u|ualvos, invasion, foroit^n oncniy. riot, civil i-omniotion, oi' 
 tnilitary or nsnrpcd |iow(>r ; nor 
 
 (/() Loss or daniauci' l)v i'X[ilosion. 
 
 But loss or dauiaLCt' to |»roiK'rty occasionccl |>y explosion of 
 coal sras elsi'wliere than on premises ht-iiiii' part nt any lms works, 
 or the property struck hy lit^htniii":;, will l)c deemed to he loss hy 
 tire under the conilitious of this policy. 
 
 (4.) }*r('nttnin vpceij)ts. — Xo receipts for any [in'niitim of in- 
 surance shall he vidid or availahle for any [lurpose whatever, 
 exeei>t such as are on printed forms issued from the company's 
 ottieo and siijneil hy one of the clerks or agents of the company. 
 
 5. Alienatiun of propert)/. — This policy ceases to be in force as 
 to any of the j>roperty horehy insured, which shall pass from the 
 insured to any other [lerson, otherwise than l)y will or operation of 
 law, unless notice thereof he j^iven to the i-ompaiiy and the suh- 
 sistence of the insurance in tavor of such other [lerson he declared 
 liy a memoramlum endorsed hereon Ity or on hchalf of the com- 
 li.'ny. 
 
 (;').) Notice and jtrimfs nf ln.ss. — On the haiipening of any loss or 
 damatfe hy tire to any ot the propt'rty lierehy insureil, the insured 
 shall forthwith i^ive notice in writiun' then'of to the company and 
 within titteeii days afti-r the loss or damage, or suidi further time 
 as the conijtaiiy may allow in that liehalf, and at his own expense, 
 deliver to the company a claim in wi'lting for rUch loss or damage 
 containing as particular an account as may he reasonahly practic- 
 ahlc of tiie several articles ()!■ items of property damaged or destrov- 
 ed, stating the amount ol' the <himage to eai'h, ai\d value of each at 
 the time of the loss or damage, and shall also it' re(|uired, (h'liver 
 an account, with particulars and values of all other property (if any) 
 herehy insured, and shall produce and give all such hooks of 
 account, vouchers, invoices (whether originals (U- copies), plans, 
 specitications, proofs, and explanations as may reasonahly In- 
 re([uired, together with the [larticulars of any other insurance or 
 insurances eflected hy him, or on iiis i)ehalf on any projierty insured 
 hy or in any way referred to in this [)oliey, and if rei[uire<l, a 
 
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 368 
 
 INSURANCE LAW OF CANADA. 
 
 statutory declaration of the truth of such accounts ; and no chiini 
 whatever under this policy shall be payable, unless the terms of 
 this condition have been complied with. 
 
 7. Fniudalent clainni. — If the claim be in any respect fraudulent, 
 or false book account, entry, voucher, invoice, deed, c* other 
 document, plan, specification, estimate, proof, or explanation be 
 produced or given, or if any fraudulent means or devices be used by 
 the insured or any one acting on his behalf to obtain any benefit 
 under this policy, or if any loss or damage by fire be occasioned by 
 the wilful act, or with the connivance, of the insured, all benefit 
 under this policy is forfeited. 
 
 8. Eeinstatetnent. — The company may, if it think lit, replace 
 or reinstate, wholly or in part, property damaged or destroyed, or 
 any items thereof instead of paying the amount of the loss or 
 damage thereto, and may join with any other company or insurers 
 in so doing in cases where the property is also insured elsewhere. 
 In case the company elect to do so, the insured at his own expense 
 shall supply or produce, as and when required all plane, specifica- 
 tions, measurements, documents, books and information (oral and 
 documentary), which may be requisite for the purpose. 
 
 9. Mights of compani/ in case of Jire. — AbandonnienL — On the 
 happening of any loss or damage by fire to any property in 
 respect of which claim is, or may be made under this policy, the 
 company nuiy by its authorized representatives, officers and 
 servants, and shall be allowed by the insured to enter into the 
 building or place in which such loss or damage has happened and 
 tor a reasoiuible time remain in possession thereof and of any 
 property hereby insured which is contained therein, and remove 
 and deal therewith tor all reasonable [lurposos relating to, or in 
 connection with this insurance or the claim thereunder, but the 
 insured > hall not in any case have any right to abandon any pro- 
 perty to the company, whether taken possession of by the com- 
 pany or not. If the insured or any one acting on his behalf, shall 
 hinder or tbstruct the company in doing any ot the above acts, 
 then all henctits under this policy shall be forfeited. 
 
 10. Other insurances. — If, at the time of any loss or damage by 
 tire happening to any property hereby insured, there be any other 
 subsisting insurance or insurances, effected by the insured or by 
 any other person or persons on his behalf, covering the same pro- 
 perty, this company shidl not be liable to pay or contribute more 
 than its rateable proportion of such loss or <hunage. 
 
CONDITIOX.S UF I'OLICIES, KTC. 
 
 369 
 
 11. Sahjed toavermje. — In ii!l oases where any other subsisting 
 i)i8uraiiee or insurances effected by the insured, or by any otlier 
 I)ersoti or persons on las bclialt', covering any property hereby 
 insured, either exclusively or together with any other property in 
 and su'_[ 't to the same risk only, shall be subject to average, the 
 insurance on such pro[terty under this policy shall be subject to 
 average in like nninner. 
 
 12. Arlj(fraliiii). — If any dirterence shall at any time arise 
 between tlie company and the insured or any claimant \inder this 
 policy as to the liability or the amount or the extent ot'the liability 
 of the company in respect of any I'laim for loss or damage by lire, 
 or as to any (piestion, matter or thing, concerning or arising out 
 of any claim for loss or damage under this policy, every such 
 ditlerence, as an<l when the same arises, shall be referred to tln' 
 arbitration ot some [lerson to be ai;)pnintcd in writing ity boih 
 parties, or of two indittercnt [)ersons, one to beappointed in writing 
 ity the part\' claiming antl the other by the company, within one 
 calendar month after either party has been retpiired so to do l)y the 
 other party, and in case of disagreement between the arl/il rators. 
 thi'U to the decision of an umiiire, who shall have licen a[iiiointed 
 in writing bv the arbitrators befon' entering on the refereu'c ami 
 who shall sit with the arbitrators, and jireside at the meetings 
 iluring the reference, unless the arbitrators shall otherwise' agree in 
 writing, and the death of any of tlu' parties shall not i-evoke or 
 affect the authority or powers of any arbitrator or umpire, and 
 each party shall bear or pay his own costs of the reference and a 
 moiety ol the costs of the award, ami in all other respects the 
 submission to arbitration shr" be subject to the |U'ovisiniis ol'tlic 
 Arbitration Act, l8H:i, or any statutory modification theri'of, ;ind 
 may be ma<le a rule of Her Maji'sty's High ("oiirt of Justice in any 
 division, upon the application of either of the piirties. And it is 
 hereby exiiressly dcclari'd to be a condition [»rece(lent to the 
 liability of the company in respect of any claim under this policy. 
 that the claim shall, if not admitted, be referred to and deti-rmim-d 
 l>y such arbitrator, arbitrators, or umpire as aforesaid, ami the 
 clainnmt shall have no right of action against the company except 
 tor the amount of the claim, if admitted, or the anionnt. if any, 
 awarded by tlio award of sucli arbitrator, arbitrators, or umpire. 
 
 18. ft' i>(>l.ici/ i,s roid, jireiiiiinns paid urc furfeited. — In all cases 
 
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 370 
 
 INSURANCE LAW OF CANADA. 
 
 where this policy is void, or has ceased to be in force or to attach 
 under any of the foregoing conditions, all monies paid to the 
 company in respect thereof shall he forfeited. 
 
 14. What may be done in case of redress. — The insured and any 
 clainiant under this policy shall, at tlie expense of tlie company, 
 do, and concur in doing, and permit to he done, all such acts and 
 things as may be necessary or reasonably recjuired by the company 
 for the purpose of enforcing any rights and remedies, or of obtahi- 
 iiig relief or indemnity from other parties, to which the company 
 shall be, or would become, entitled or subrogated, upon their 
 paying for, or making good any loss or damage under this polie-y, 
 whether such acts and things shall l)e or become necessary or 
 required before or after his indemnification by the company. 
 
 261. Conditions of life assurance policies. — In life assurance 
 policies it is generally stated that the policy and the application 
 together constitute the entire contract and that the provisions and 
 stipulations printed at the back thereof are a part of the contract as 
 fully as if recited in the body of the policy over the signatures 
 thereto afH'ced. No provision ciin bo varied or waived except in 
 writing by one of the executive officers of the company.' 
 
 261a. A recent condition as to change of beneficiary of a 
 life assurance policy. — A condition recently introduccil in Canada 
 for the [luriiose of giving a greater tlexiltility to life assurance 
 policies is to the effect that the [»olicy nuvy be drawn in tavor of the 
 U'ife or diUiLrhter, or unv other l)eneficiarv with the exiness under- 
 standing that the assured may change the lieneficiary, or bene- 
 ticiaries, at any tinu.' iluring the continuance of the policy, pro- 
 vided it has not been assigned, liy tiling with the company a 
 written request duly acknowledged, accompanied iiy tlu- policy ; 
 such change to take effect upon the emlorst'inent of the same on 
 the policy by the company. 
 
 Sneli a condition may be applicalile in its entirety to [lolieies in 
 the United States, but it would '"'rtainly conflii-t with some provi- 
 sions of Canadian law as regards policies taken out in favor of the 
 wife. 
 
 262. Conditions of policies of burglary guarantee ir.suranoe. 
 
 Losses incurred from burglary within the meaning of the C'rimimd 
 Code, 1892, may be covered by insurance ; the conditions upon 
 which such policies are granted in Canada are as follows : 
 ' l''or t'll't'ct of this diiusc sl-o Wmiium' v. Sun Life Ins. I'o., ,si//»v( ;• i")LM), 
 
CONDITIONS OF POLICIES, ETC. 
 
 371 
 
 1. Correct representations — Fraudulent claims. — If the proposal 
 or declaration of the insured is untrue in an}' respect or if any ma- 
 terial fact affeeting the risk be incorrectly stated therein or omitted 
 therefrom, or if this insurance or any renewal thereof shall be ob- 
 tained through any misstatement, misrepresentation or suppression 
 ot fact, or if any claim made shall be fraudulent or exaggerated or 
 any false statement or declaration shall hi' made in support thereof, 
 iir if upon any loss or diunage hapi»c;uing in respect ot which a 
 claim is or may be made under this policy, the insured shall cause 
 or suiter the company or any of its representatives to be hindered 
 or obstructed in entering the premises where the same has occurred 
 or examining any books, vouchers, correspondence or other docu- 
 ments relating or that may relate to the property alleged to be lost 
 or damaged then and in any of these cases this policy shall be void. 
 
 2. Nature iif interest of insured — Alienation (if property. — In the 
 case of insurance ot contents of dwelling houses property belonging 
 to the witc, husband or children of the insured shall l)e held as 
 covered by this Policy, but in all other cases the nature of the in- 
 terests ot' the insured must be stated to the Company in writing 
 when the insurance is proposed, otherwise it shall be assumed that 
 his interest is that of absolute owner and no other interest shall be 
 deemed to be covered. This insurance shall remain in force as re- 
 gards the respective subject matters of insurance only so long as 
 tlu' interest ot the insured or an\' person claiming by, from or 
 through him by will or operation of law in such subject matters of 
 insurance respectively, shall rontinue and any sale, transfer, assign- 
 ment, hypothecation or pledge of the property covered by the pre- 
 sent l'(dicy during the eontinuance of the said Policy without the 
 previous consent of the Company iu writing having been obtained 
 shall render this Policy null ami void. 
 
 .'}. Notice and proof iif hiss. — Inunediately upon the occurrence 
 ot any loss or damage supposed to have been oei-asioned by risks 
 covered by this Policy, the insured shall give notice thereof in 
 writing to the Company, and shall within tourteen days from the 
 date of the occurrence of such loss or damage give to the Company 
 the best ai'count and particulars in his puwer. of the circumstances 
 of the loss and damage together with a lull descriiition of the pro- 
 perty lost or damaged and every part thereof and a specification of 
 the vahu- of the same, and shall furnish all such explanation-!, 
 vouchers, proofs of ownership and other evide:ice as may be ie:i- 
 
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 372 
 
 INSURANCE LAW OF CANADA. 
 
 sonably ro([iiiro(l to substantiate the claim, and t^hall make and 
 cause to be made statutory declarations of tbe truth of the elaim 
 and of the mutters aforesaid, and no claim shall be payable under 
 this Policy unless the terms ot this condition have been complied 
 with. 
 
 4. Due jirecaiifionsfirr the safety of the prnperti/ — Xon-occiipat{on 
 iif premises. — The insured shall take all due precautions for the 
 safety of the property insured jvs if the same were not insured and 
 shall provide all doors and windows with proper loeks and shall 
 see to the proper fastening and locking of the same, and the in- 
 sured shall not do t*r sutler anything whereby the risk of the (\)m- 
 pany shall be increased, provided that should the premises in 
 which the property insured is situated be left unoccupied by day 
 or night for u period exceeding seven days without the prior con- 
 sent in writing of the Comiiany, and the payment ot an additional 
 [iremium the Policy shall notwithstanding anything therein or in 
 these conditions contained to the contrary cease to be in force so 
 far as regards plate, jewellery, ornaments, trinU'ets, notes and secu- 
 rities, but this I'olicy shall extend to cover the said articles if 
 jtlaced in the custody of a bank or of the (Company, or removed to 
 an occupied house during the temporary non-oecupation of the 
 said premises, after such removal has been duly intimated aiid ap- 
 proved ot' by the Comi>any. 
 
 5. lieiii-statciiieitt — Xnn-niinuilftal of steps tnkcn fur recover;/ (f 
 praperti/. — The Oomi>any shall bo entitled but not bound either 
 alone or in conjunetion with other insuri'rs at any time before a 
 claim has actually been [laid, insteail of settling the same in pay- 
 ment by money to reinstate the loss or damage, liut not to an 
 amount in excess ot the several amounts insured. They shall also 
 without thereby being held to admit any I'laim l»e entitled to *-iv':e 
 steps for the recovery of any property claimed for or may them- 
 selves in their own and in the insured's name, take any sueh steps 
 and the insured shall be bound to give the Company all informa- 
 tion and reasonable assistance in so doing. The insured nniy also 
 lie re<iuire(l as a coi\(lition of any settlement to procure to be given 
 to the Coin[iaiiy a valid legal title to the proj'crty settled for. 
 
 (!. RcHrinil.'< — C((ticrlliitin)i. — The Company does not under- 
 take to give notice to the insured to renew this Insuranci", nor will 
 the Company bold the insured covered in the event of the ri'uewal 
 premium not having been paid on the due date thereof whether 
 
mmmmmmK 
 
 CONDITIONS OF POLICIES, ETC. 
 
 873 
 
 notice has been given or not. The Company may, moreover, at 
 any time, disoontlnue this insurance on any certain date by giving 
 notice in writing to tlie insured by registered letter addressed to 
 him at the address mentioned in tiie Policy of their intention to 
 discontinue the same on such date, and in such case the Company 
 shall (subject to the provisions of the Policy and these conditions) 
 satisfy and discharge all claims in respect of loss or damage which 
 may have occurred before such discontinuance and shall return to 
 tlie insured the amount of premium corresponding to the unex- 
 pired time for which [U'emiura has been paid. A notice sent by 
 registered letter in pursuance of this condition shall ne deemed to 
 be received at the time when it should have been delivered in the 
 ordinary course of Post. 
 
 7. Material rhanje of risk. — If any change is made in the said 
 premises material to this risk either by increasing the same or 
 diminishing the same, or if any change be made in the nature of 
 tlie occupation of the said prem'-"os the said changes shall at once 
 be notitied to the Company, and in default of sucli notice being 
 given this Polic}' shall cease. 
 
 8. Actions on policies — Within six months after lass. — No suit 
 or action on this Policy for the recovery of any insurance shall be 
 sustaiiuible in an}' court of law or equity until after the full com- 
 liliance witli the foregoing regulations, nor unless commenced 
 within six months next after the happening of the loss or damage 
 in respect of which the claim is made. 
 
 263. The New York Standard Fire Policy. — l)y legislation 
 Xew York has adopted what is known as the Xew York Standard 
 Fire Policy for insurance against fires. 
 
 New Jersey, Massachusetts, Michigan. Minnesota. Xew 
 Hampshire, North Dakota. Pennsylvania, Wisconsin, and 
 Wyoming have also legislated to tlie same ]inr[iose.' 
 
 Mr. Riduirds, in bis ri. 'cnt work.-' with reference to tliis 
 Standard Fire Policy, says : ■• Tiic use of the stantlard form is made 
 by the statute obligatory in Xew York upon all fire coni[)anies 
 doing business within file state anil a penalty is imposed tor vio- 
 lating till' .'.et. but it is provide<l that any poTu'V in form incon- 
 sistent with the provisions of the act shall nevertlu'less be liinding 
 upon the company issuing the same. 
 
 ' Si'c Appeiiiiix to I'liMiiciits I'Mi'i' Iiis. Digest, ISii,'!, - Rulmnls on Ins. IHI. 
 
 
 
 
 
 
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 374 
 
 INSURANCE LAW OF CANADA. 
 
 It is hardly nooossary to roiiiark tliat the policy is not an 
 absolute agreement to grant indemnity to the insured at all events 
 for the loss occasioned by the casualty insured against, but is made 
 dependent upon the fuliilment on his part of certain provisions of 
 the contract, which are called conditions. If any one of these is 
 violated or unperformed the policy is avoided, and there can be 
 no recovery unless the policy is subsequently confirmed by the in- 
 surer. The conditions for the most part are expressed in the cc^n- 
 tract itself, and to solve their proper meaning, force and effect 
 must be the chief concern in the study of tire insurance law. 
 
 An inspection of this policy will show that some of its condi- 
 tions are precedent to the effectual making of the contract ; others 
 presuppose the contract made, but are precedent to a right of ac- 
 tion thereon. Others declare events in which all right under the 
 contract is forfeited or otherwise define the obligations of the 
 parties, or restrict the lial)ility of the insurers. Others deal with 
 the mode of settling disputes, and others limit the period for 
 brinffina: suit. The conditions may also be divided into three 
 classes, those precedent to a valid inceiition of the contract ; those 
 relating to the contract during the pendency <if the risk, and those 
 which appertain to the presentation of the claim of the assure<l 
 and the proofs of his loss." 
 
 261. Printed conditions of policy -Alterations and am- 
 biguity. — "Where the written pm-tion of the policy is inconsistent 
 with the printed conditions thereof, the latter must give way, 
 because the words superailded in writing are entitled to have 
 greater effect attributeil to them than the itrinted words, inasmuch 
 as the written wonls are the immediate language and terms 
 selected by the parties themselves for the expression of their mean- 
 ing and are necessarily inserU'd from design and at the time. The 
 printed words may not express the intt'ution of the [larties ; the 
 written words certainly do, and hence should control.' 
 
 An alteration upon a policy is an act l)y which its language 
 and meaning are changed. When legitimately made, it is usually 
 effected by means of endorsements thereon, and if made with the 
 crnsent of the insured will be vali<l; if made without the consent of 
 the insured, the policy will not be affected thereby. It made by the 
 ■Mured without the consent of the insurer, it will be of no effect. 
 
 •Jrlswold 480. .iiid sou infvn % 2(17 mill iiuk-x on same subject. 
 
CONDITIONS OF POLICIES, ETC. 
 
 375 
 
 If made by a stranger to the contract, it is called a " spoliation," 
 and will not afi'ect the instrument, if the original words can be 
 restored with certainty.' 
 
 As reirards " ambiguity" in the policy Griswold says : 
 Any indistinctness or uncertainty of expression in the written 
 words of an insurance policy will be construed adversely to the 
 underwriter, as they are the immediate language and terms selected 
 by himself for the expression of his meaning and hence, necessarily 
 inserted from (h'sigi), so when a eomjiany has expressed itself in 
 terms rei[uiring interpretation an<l construction, it cannot com- 
 plain if any doubt as to the meaning is resolved in favor of the 
 insured. - 
 
 265. Levy on property insured. — Where the condition reads 
 that the policy shall cease if the property insured " shall be levied 
 on or taken into possession under any proceeding in law or 
 equity," it 1 as been held that oidy personal property was in view.'' 
 
 266. ConoLitions as to cancellation by notice, etc. — The 
 
 power to cancel must be exercised before tender of the premium 
 due.^ But the notice of cancellation for non-payment of premium 
 or otherwise may be given even after a loss.' 
 
 "Where, however, the right is to cancel a contract within thirty 
 days by causing a notice to that ettcct to be maileil to the insured, 
 a notice mailed within thirty days, I)nt not reaching the insured 
 by due course of mail till after the tire will not cancel the contract." 
 There was a conflict of oi»inion amoug tlu' juilges who took 
 part in this case. There were two judge's who dissented from tlie 
 judgment of the (Queen's Bench, and tliis judgmi'iit reversed tVie 
 unanimous judgment of the Court of Review. So the o[tiniou 
 which prevaileil was helil by four judges only, while live wci'c in 
 favor of the c(uupany. which was held liable. 
 
 Whore two parties are severally interested, notice to one docs 
 not atfcct the other. 
 
 ' (ii'iswoUl, 10. ■-' (iriswuld, II, and si'i' sk/h-h ^ J."i:f, iiiid infra ^ "Jli". 
 
 'Sot- WL, \.;«n. 
 
 ■• Wniior V. I-ifc Assiii'r\. of SLM>tl;iiid. :iil \,.i'..]. :t(i:t, (^l!. issii. 
 
 ■' Hrucf V. (ioro Disl. MiU. Ins. Co. :iO I'.C. (C.P.> 'JuT. 
 
 " 'I'oimli V. I'l'ovinci il Ins. Co. JO l,C..[.. Q.H. liis, ;iiid si'c (iood win v. r,;ini' ishire 
 Fire & l.il'o Ins. Co. IS f<l., p. I, yiiprii s'S Hts, llll, uii I sco I.osuk'il v. Ut'loro, IJ.ilIoz 
 .I\ir., lu'iile. Ci. of (^iHs, isfis, I, :!:!.">, luid see N!///c(' j! Hill I't s('i|. 
 
 " tJunnisliLTK V. W'lilorloo .Mul. Ins. Co. 2t U.C. (Cli.) ;l.'5il, 
 
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 IXSUUANCE LAW OF CANADA. 
 
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 All L'X|)rossi<m of the compaiiy's wisli to ciiiuH'! iiiul a re(pie«t 
 to return tho poiicy upon wliicli the preniuim would l»e ivinitted is 
 not suflicieut. It has 'oeen said in the United States tlnit nothing 
 short ot'notiee and artual tender of the pra nitu premium will do. 
 
 There must Ite an unconditional (K'inund tor eaneellation not 
 a mere eX[iressioii of desire, and the right in tiie company to cancel 
 is strictly construed. The notice must he that tlie [lolicy is can- 
 celled, not irill he,iun\ the unearned premium must he tendered. - 
 
 266a. Same Subject. — h\ Etimtl \'. Slater MuL Fire Ins. Co.' 
 the [lolicy [irovided that after seven <lays' notice of intention to 
 cancel the insurant' should terminate. A notice dated l^th Feb- 
 ruary was deposited nn that day in the Post Office, Imt not until 
 after the office was closed for the day, and this notice was received 
 by the insured on the next day in due course of mail and informed 
 him that his insurance would terminate on the 20th, the loss not 
 haviny" occurred until the 22iid it was held that the notice was 
 suffic'. lit both within the letter and the spirit of the contract. This 
 decision docs not seem to be in conformity with the weiglit of 
 authority which would construe the notice of cancellation strictly. 
 
 266b. Immediate cancellation not valid. — A notice by an 
 insurance company to terminate a lire policy, under statutory con- 
 dition No. 19 of the Ontario Insurance Act (R.S.O. (1887), c. 107, 
 s. 114). should be wholly in writing and should info'-m tlu' assured 
 that the [lolicy will he terminated at the exiiiratioii of the pro- 
 scribed statutory jjcriod after tlie service of the notice. Where, 
 therefore, a company gave a notice, whicli was in citect an imme- 
 diate cancellation, with a rcnirii of the unearned [iremium irom 
 the date of the noti.v. — lIcM (Gait, C. .1.. dissenting), that the 
 jiolicy had not been cnnct'lied.' 
 
 266c. Repayment of unearned premium a condition pre- 
 cedent. — in -.iiiolln'r I'ase the cnmpany insuring the [iropi-rty. sent 
 a circular to this i-rt'citt to this [(articular polii-y-holder with others, 
 to wit ; ••Sir. — 1 have to inlorm you that the Stadacona Fiisurance 
 Company has ordei'i'il me to notify policy-iiolders to insure else- 
 
 ' Grilley v. \. V. I'l'iili-al I;i-. On. lOi) X. V. 117. mikI m'i' infra S 'M'k. 
 -(iritit V. Hfliaiiff AIiiluiU Ins. I'o. II L'.C (Q.l>. ) 'Jiili, May llfi. 
 •' 7 II. •! . ."iii-, st'i! siijirii S Idli ol si'q. 
 
 > liankof Comiiii'ivf V. Hi'iti.sli Am. .Vss. Co. IS (). I{. ^.'U, ami sco Caldwell v 
 Stiui.iiMii.i Fire k Life Ins. Co. 11 S.C.H. :il--'. 
 
"':? 
 
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 CONDITIONS OF POLICIES, ETC. 
 
 377 
 
 where, as the comiiany has decidctl to wind u[i. You will thoro- 
 toi'o take notice that your poliey ot iiifurauee is eauoelled troni this 
 date, rneaniod premiuuis will be returned hereafter.'" (Signed by 
 the agent ot the eonipany.) 
 
 Upon receiving it the policy-holder delivered the poliey to one 
 who was agent of this comiiany and of others, and instrueted him 
 to place the insurance elsewhere ; but it was not done before there 
 was a loss l)y tire. Upon the policy-holder bringing action on his 
 In.licy, the company claimed that there had been a eancellation of 
 the i>olicy. 
 
 The Hiiiireme Court of Canada, on appeal to it from the 
 Supreme Court of Xova Scotia, held that the cancellation was not 
 completed. The condition was, as to cancellation, in the words of 
 tiie English ease referred to infni § 26t5d. Strong, J., in his 
 opinion said of it : '•The condition is a most unreasoiu^ble and one- 
 sided stipulation, as it enables one party to a contract to rescind or 
 I'Ut an end to it at its pleasure, whilst the other party is not 
 entitled to a like privilege. Moreover, it is grossly ui\tair in not 
 providing that notice should be given a reasonable time before the 
 eancellation should take etlect, so that the assured might have the 
 (•pportunity of covering himself by another insurance. These con- 
 siderations alone ought to induce a court to eonstriie so unjust and 
 liarsh a conditidu with more than ordinary strictness. It is, how- 
 ever. <loin<; no violence to the huiii'uaire of the condition itself to 
 hold that the repayment ot the unearned proportion of the 
 pi'emium is to be a condition precedent to the exercise of the right 
 of rescission which the company, at its own arbitrary election, is 
 entitled to subject the assured to, The words are in the form of a 
 piuviso. whiid: ordimiril}' ini[iorts a condition precedent. Ami the 
 hinguagethus [ii'rmitting it, no one could hesitate to a<loi)t a con- 
 -ivuction which has at least tlu' merit of attributing to the cancel- 
 hition the character of a rescission by requiring that the insni-eil 
 shall, as ni'arly as possible, be ]>nt in fiOitK tjHd, rather than that of 
 a forfeiture, which it woulil be. in fact if net in form, it the con- 
 dition justified a cancellation such as that [iroposed l)y the circular, 
 namelv, a cancellation takinu: placi' at the arbitrary will ot the 
 company, without any return of premiums, the insured being bound 
 to rest content with the assurance that ' unearned premiums will 
 be returned hereafter." "" ' 
 
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 1 Caldwell V. Stivfliicoiiii l". .V- L. Ins. Co. (iss;i) 11 8. f. I!. 2\\>, lW. 
 
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 378 
 
 INSURANCE LAW OF CANADA. 
 
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 266d- An English construction as to right of company to 
 cancel — 111 one of the latest English decisions on an appeal from 
 the Court of Barhadoes, hy special leave, being below appealable 
 value, because of its general importance to insurance offices, the 
 condition of the policy of tiro insurance, in a(hlition to providing 
 against anything being done by which the risk to the [>roperty 
 insured wouhl be increased without the assent ot the cmnpany, in 
 that the etfect of such change of risk would be that the insuranct! 
 thereon should cease to attach, also provided that, "If b^- reason of 
 sucli change, or from any other cause whatever, the society or irs 
 agents should desire to terminate the insurance effected by the said 
 policy, it shall be lawful for the society or its agent so t(j do, by 
 notice to the insure*!, or to the authorized representatives of tlie 
 insured, and to reipiire the jiolicy to be given up for the purpose of 
 being cancelled : provided that in such case the society shall refund 
 to the insured a ratable proportion for the unexpired time thereof 
 of the premium nn'eived for the insurance." ' 
 
 The [iroperty insured was forty acres of canes growing on the 
 plantation of the insured. There were three tires, which the 
 insured were advised were probaldy incendiary tires. The repre- 
 sentatives of the insured received and showed to the insurer an- 
 onymous letters threateningmore fires. A few months afterwards 
 the agent of the insurer gave written notice in due form to the 
 insured that, in consequence of these occurrences, the society termi" 
 luited the policy from that date, in accordance with the clause 
 above quoted, and at the same time tendered the unearned 
 premium. The insured declined to receive the money, or give u]) 
 the policy. U[)on losses occurring after that date this action had 
 been brought. 
 
 The I'rivy Oouncii held that the insurers had, by force of this 
 condition, the option of terminating the i)olicy at will.- 
 
 Lord Watson construed the condition as follows : It consists 
 of two branches which differ in their jiurpose and effect. The 
 object of the first is not to void or terminate the polii-y, l)Ut t(j 
 prevent its attaching to such portions of the subjects which it is 
 framed to cover as may, l)y reason of some act done after its date 
 without the consent of the insurers be exposed to increased risk of 
 fire. The object of the second, with which we have to deal in the 
 
 ' See also supra 8 2iWc. 
 
 ■^ Smi Fire ollice v. Hurt (188!)) 14 App. Can. 08. 
 
CONDITIONS OF POLICIES, ETC. 
 
 379 
 
 ro 
 is 
 tv 
 <»t' 
 
 present case, irt to eiitible the insurers to release themselves troni 
 their contracts during its currency, leaving it in full vigor down to 
 the time of notice. The words in which the power of determi- 
 nation is expressed, taken by themselves, are very wide and com- 
 prehensive. According to their primary and natural meaning they 
 import that, in order to justify the exercise of the power, nothing 
 is required, except the existence of a desire on the part of the 
 insurer to get rid (d' future liability, whether siuth desire be 
 prompted by causes which prevent the polii-y attaching or by any 
 other cause whatever. That construction of tlie words, read apart 
 from the preceding context, ai)[»ears to have been accepted Ity the 
 ma-jority of the Court of Ap[ieals." 
 
 The Chief Justice of Gri'uada said : " It is impossibli' t'<>r 
 words to be more general, and, if construed literally, any, the 
 most absurd, constructions could be put upon them." It can 
 hardly be suggested thattlie literal construction of the words won!<l 
 go further than giving tlie insurers the option of determining the 
 policy at will, and the learned Chief .Justice was apparently uf 
 opinion that it woultl go that length. So far their Lor(lsbi[)s agree 
 with iiim, but they are unable to concur in his view that such a 
 construction woiUd, in any aspect of it, be absurd. The condition 
 does not involve the avoidance of the [)olicy ab imtiu, or forfeiture 
 of theprenuum paid by the insured. There may be many circum- 
 stances calculated to beget in the mind of a fair and reasonable 
 insurer, a strong desire to termimite the policy, wliich it would be 
 inconvenient to state and diiKcult to prove ; and it must not be 
 tbrgotten that the whole l)usiness of insurance ofKces consists in 
 the issue of policies, and that they have no inducement and are not 
 likely to curtail their business without sutKcient cause. On the 
 other hand the insured gets all the protection which be [lays for, 
 and, wiien the poliity is determined, can protect his own interests 
 liyeiiecting another insurance. 
 
 It is a well-known canon of construction that, wliere a [lar* 
 ticular enumeration is followed by such words as '* or of her," the 
 latter expression ought, if not eidarged by the context, to be 
 limited to matters ejnsdem (/eneris with those specially enumerated. 
 The canon is attended with no flitHculty except in its appli<'ation. 
 Whether it applies at all, and, if so, what etteet should be given to 
 it, must in every case dei)end upon the precise terms, subject- 
 matter, and context of the clause under construction. In the pre 
 
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 :{80 
 
 IXSIUANCE I,A\V <(F CANADA. 
 
 
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 si'iit caso tlioro ujipfars to tlu-ir Lonlsliijis to lie no looiii tor its 
 aiii>Iifatioii. Tin- tlu'ory iipoii wliicli tlic niliiiji- ot' tlio prt'sidinif 
 jiuliijo aiid its atHniiaiU'f liy tln' majority ol' tiu' (^oiirt ot Apiioal 
 IH'o^'OcmIs appears to lu- this: tlie words " liy ivasoii ofsucli cliaii^c" 
 are equivaloiit to an t'liiimeration ot" certain partieular eliautft's or 
 eaiises specitiediii tlie ]treeediii,<r e(Miditi(^ii ; and that the following 
 words, "or from any eausc whatever."' must l»e eoiifincd to cause 
 e/nsdeni jcneris with these. 
 
 The antecedent context does not contain a mere specitication 
 of particulars, but the descri[>tion of a complete //f/^z/.s. if oot of two 
 genera. The tirst ot these is, any and every act done to the 
 insured property whcreliy thi' risk of Hrc is ii\creased. Taking 
 that as u particular, none of the learned judges has suggested what 
 circumstances would constitute nHu siniilln. Their Lordshijts are 
 accordingly of opinion that the condition must be read in the 
 literal and mitural sense of the language which the contracting 
 ))arties havo chosen toemiilov. and that it includes anv and everv 
 cause wnich could reasonably induce an insurer to desire the 
 termination of the policy. 
 
 The (juestion remains wlietlier the clause gives the insurers the 
 right to act ujKin their own judgment, or whether they are hound, 
 if so recpiired, to allege and jirove to the satistaction of a judge or 
 jury not only that a desire exists on their part, but that they have 
 reasonable grountls for entertaining it. If the determimition of 
 the policy wouhl be for the advantage ot its business, that would 
 obviouslv be a reasonable ijround for the otKn- desirintj' to nut an 
 end to it, and a pri')ri one would sui»pose that the insurers them- 
 selves must 1)e the l)est if not the only capable judges of what will 
 benetit their business. An insurance office may deem it prudent 
 and resolve to limit its outstanding engagements, and, unless the 
 words of the clause clearly iiniily the contrary, it cannot be pre- 
 sumed that tln' parties moant to make such a ([Uestioii of prudent 
 administration the su1)ject ofinr|uiry in a 'ourr of law. 
 
 These and other considei'ations, already adverted to, have led 
 their Lordships to the conclusion that the sutHcieney of the reasons 
 moving them to desire the termination of the risk which they had 
 undertaken, is a matter of which the insurers are constituted the 
 sole judges." 
 
 266e. Notice to broker— Partner's consent— Actual tender 
 of premium unnecessary. — A company having by the terms of its 
 
it 
 
 CONDITIDN'S OF POLICIES, ETC. 
 
 381 
 
 poru-y the power and right to tfrminiito tlio iiisuranee at aiiv time, 
 upon ,u;iviiig iiot'u'i!, caiiiiot ottoftivoly caiioel a policy by ijfiviiiij 
 notice to a broker who had negotiated the insurance for his elient. 
 Such notice musst be given to the assured hiniselt", or be conimuni- 
 cated to him by the one receiving it to make a suffieient cancel- 
 lation.' 
 
 Cooley, C. J., said ni a Mi. iiigan ease : '' A partner's eoiisent 
 to the canceHation ot' an insurance poliey in which the firm is in- 
 terested is conclusive on the tirm, and a formal surrender ot a 
 |)olicy is unim[iortaut, except as evidence of the caiicelhition. 
 Transactions with reference to the cancellation of an insurance 
 policy are to be construed reasonal)ly and fairly, and in acconlance 
 with the evident understanding of the parties at tlie time. The 
 actual tentler of unearned premium is unnecessary to the cancella- 
 tion of an insurance p'>licy it the minds of the parties have met on 
 the point that the policy is to be cancelleil."- 
 
 266f. When actual tender of premium is necessary. — l>ut 
 where an insurance policy provides fur a cancellation at the option 
 of the insurers, on ijivini; notice to that eltect and refundintr or 
 tendering a ratable pro[tortion of the iiremium for the unexpired 
 term of the policy to the insured, there must be an actual tender 
 to the insured, or to his authorized agent, of the full amount nf 
 the unearned premium ; and a tendi'r of only apart of the [)remium 
 due and of another [loiicy of insurance in another company for tin- 
 balance, has been hehl not sutHcient.' 
 
 266gr. Cancellation on " request " of assured.— In a well con- 
 sidered case l)efore the Xew York Court of Apjicals, the Xew 
 York statute regulating the cancellation of tire insurance policies 
 was brought l)efore the court. The statute provides that " any 
 .or|»oration transacting the business ot tire insurance in this Statt' 
 shall cancel any [tolicy of insurance hereafter issued or renewed ai 
 any time by I'eipiest of the party insured." (Laws 1H80, cb. 110 
 §3.) 
 
 The [tolicy here considered was returned to the agent issuing 
 it, who was authorized not only to issue policies but to accept them 
 tor cancellation and terminate insurances at the re(piest of tlic 
 
 I Scott V. Sun Fire Odlce <1H0()) 1;« Pa. St. :i22. 
 
 J Hillock V. Tnulers' Ins. Co. .")4 .Mich. Ml. 
 
 ■■• Qiinng Tue Sing v. Anglo-Neviula Ass. Corpn. (181X1) 8*5 Cal. iH'*). 
 
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 IMHUUANCK r.AW OK CANADA. 
 
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 iiiHurcd. Tlu' k!tt('i' iKX'Diiipiiuyiiii; the |K)licy Hliit«'(| tluit it whh 
 Hoiit for caiiiM'lliitiim uixl roquoutod thatit liouttt'iidtid to "at once." 
 Not having tormally I'anccllod it, the aj^ciit, after a Ihhs, rcturDod 
 it to tlu- u.-tHiired, hilt af<a.iti it wiis rctiirixMl to tlic ajfcnt upon con- 
 ditiotiH. WhotluT or iint tliis [>olicy waH canctillt'd, un(h'r thu factn, 
 wan the f|iK!«tioii hoforc the coiirtH. 
 
 Thcv Hai<l : " The coniinaiid of the statute in ch/ar, and no 
 fliHcrotion or option in hdt to tlie eoinpany. The nok^ rei|iiirenient 
 to set the eoinniand in motion is a reipiest liy the innured, .iinl, 
 al'ttM' tliat reqnest is made, the I'nrt her continiianee of the contract 
 would lie in contravention of the Ktatiite. Each ol' tlie policies in 
 tjnestion contains a provision that the " insurance may he tcrmin- 
 ateil at any time at the n'<|ueH* of the assured." While the method 
 of terminatii)','' the insurance 'i]ion the, motion ol' the assured, is not 
 Hpe(!ified, except that the insured ftarty is io re(|ueKt it, the Ian,u;uage 
 of the contnict indicates that the suliject is within liis control, and 
 that the terminatini.c !i<'t is to he done hy him alone, without any 
 eoiicurreid (tr supplemental act on the jiart of the company.' 
 
 ' Crown I'oiiii Ills. (' 
 
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 \V\nn\Sl\EH, KHI'llKSKNTATIONS AM) CO.NCKA l,.MKNT, KTC. 
 
 ^(17. (ii;.Nl;llAI. ItKMAItKS l)N WAU- 
 IIANTrKH, riHI'llKHKNTATroNH AMI (u\- 
 I MAI, mi: NT AMIlKII'drs ANHWI.KS AND 
 
 iNAN-«\vi;iti;i) gri;si KINS \Aiiii)rH 
 
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 nv HiriAII, N(IT AN IS'lll-.Asi: (IK IIISK. 
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 iiii: m:si iiii'Ti'iN — \viii:iii': iii;s( iiii'- 
 
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 WAUIIANTV AH 'I'O Ill:(l,A II A TM IN I'l' 
 
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 271. .M|SII|;H( HII'IKIN (ir (KMIIIH 
 
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 I'lll.'MISMS AllDN'I'S l'AII,l' I'Allcil, 
 
 i:viiii:v(|';--.mi.hiii;i'iH';mi:ntati(in ah to 
 
 VAM'i; (IK I'ltOI'KII'I'V. 
 
 'Si'l. Dksciiii'I'Iiin (If inii.niNii anii 
 
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 s( UII'IKiN (iMIisKlN IIV A(I|;N'I 
 
 iii'ii.iiiNd I)i;h(hiiii:ii ah " is(ii,atkii." 
 
 27,'*. WdllllH IMI'lllllINd AN AdHKi;- 
 MKNT ( (INSIItKllKI) A \V,-\ Illl A NIV. 
 271. (n( itHAHi; (II' KlHK -n|'|;am haw 
 
 Mil. I, (IN All.ldlNI.Nd I, ANII Hi;ill,l;l"l'IN(( 
 AKIII TldN Al, INHI'ltAN( l;— NdTII I; K) 
 Adl;NI' AMI ( (IMI'AN V -( (ll'I'd.N |i||||;ll 
 IV ,\ TANNKHV HI'ddl. I'A( KlIIV 
 .MANIM'AI TIIIli; (If i;.\i Kl.sldll. 
 
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 AHYI.i 
 
 fdll INHANi;, MAIN liril.lllNII. 
 
 .17(1. INMI'IIANI E Of A Ttlll. 
 
 277. Wahiianiv as ki imimi ii;,h 
 
 iii;iN(i li)i;.NTi('Al,, A ((iMiiTiiiN I'lii;- 
 (fill: NT. 
 
 27H. Kmi'I.iivi:i;'h dfAliANifi. i (in- 
 
 TiiACT -HKNfWAi, mihntati;.mi;n'i. 
 
 270. ('(I.N( |.;AI,.MI,NT Of O'l'llfK I.V- 
 HlllANCl: ANII KNcrMllllA.NCfH III;. 
 fl'HAI, Of I'llfVIOTH AI'I'I.K ATKiNH 
 I'llfVIOI'H I.OSH IIV fllll:- IIANdfll fllllM 
 INCf.MllAlllHM. 
 
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 r.si:ii AS urn iii;n. 
 
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 2*^1. Ami:iiii AN \'ii;ws ami in:- 
 
 ( ISId.NH I'l'dN ( div'l (A I.Mf.N'l ((IN 
 
 ( fAI.Ml;NI' AS I'll lllsfAsCS I'NIIiri; 
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 (II A iiki,i:ahi: ( (iN( i;Ai.Mi;Nr of 
 
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 KNd\vi,i;lidl; (If ,MANAdi;ii <i\ i hm 
 
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384 
 
 INSURANCE LAW OF CANADA. 
 
 2H~. Statkmk.nts as to moi.iEr, ex- 
 
 PECTATIDN OK INTENTION— EX PKCTEU 
 OICUPANCV or A HOUSE— OHAI, I'KOM- 
 ISSOKY HErHESEXTATION HONESTLY 
 MAIIE — DATE OE SAII.INCl — VAMIHTY 
 OV I'ltOMISSOHV HEI'HESENTATIONS 
 grESTIONEI) — WATCHMAN — AXSWEKS 
 TIU'E TO llIE DEST OF Al'I'LICAN T'.S 
 KSOWI.EIKiE AND DEEIEK — WILFUL 
 MISHEl'HESENTATIOX — ICXyU HUES HY 
 AOEXT— COM EAI.MENT OK AN ACCI- 
 DENT AND OF DISFASE IN FAMILY — 
 !MISKKI»RESENTATIONS MADE KNOW- 
 INOI.Y, NO ItEITUN OF PREMIUMS 
 I'AID EN(il,ISll DECISIONS AS TO 
 ANSWFHS— TEMl'EHATE HAIIITS— PRE- 
 VIOUS REFUSAL— ANSWERS TRUE TO 
 applicant's rest KNOWLEI)t;E AND 
 RELIEF— QUESTION OF RESIDIA'CE— 
 ANSWER MY PARTNER OF A FIRM- 
 ANSWER TO A PAROL LNyUlRV. 
 
 ■ii^S. HE( ENT AMERICAN DECISIONS 
 AS TO WARRANTIi:s AND REl'UESKNTA- 
 TIONS— WARRANTY AND UEPRES|;NTA- 
 TION DISTINCil'ISIIED — DECLARATIONS 
 
 MADE PRIOR TO APPLICATION — IN- 
 SURER CONTENT WITH PARTIAL ANS- 
 WER-ANSWER IN (iOOI) FAITH TO 
 MEDICAL EXAMINER— FALSE ANSWERS 
 IN APPLICATION AND HURDEN OF 
 PROOF - RULES DEC LARED BY THE 
 WEST VllKilNIA COURT OF APPEALS- 
 REPRESENTATIONS AS TO STATE OK 
 STATE OF HEALTH— SOUND HEALTH DE- 
 FINED- -RFPRESEN'IATIONS AS TO FAM- 
 ILY HISTORY — REPRESENTATIONS AS 
 TO IIAIHTS— FALSE ANSWER MADE IN- 
 NOCENTLY --- MEANINC OF "MEDICAL 
 ATTENDANCE "' — REPRESENTATIONS AS 
 TO MEDICAL ATTENDANCE AND PHYSI- 
 c:AL INJURIES -evidence OF HEALTH 
 — REPRESENTATION AS TO WOODEN 
 HOUSES NEAR liUILDINO INSURED— 
 ANSWERS TO yUESTUJNS RECARDINC 
 VAU'E, riTLi:, LOCATION, OCCl PANCV 
 AND ENCUMHRANCliS, IIEINO HELD EX. 
 I'RESS WARRANTIES — WARRANTY AS TO 
 NO SMOKINIi IN PREMISES — MA1I:RIAL 
 MISS'IAIEMENT— PAYMENT OF PI!i;.MIl'M 
 NOTE IN CASE OF CONTRACT lUMNIi 
 VOID FROM ITS INCIOPTION. 
 
 267. General remarks on warranties, representations and 
 concealment, ambiguous answers and unanswered questions.— 
 
 As we liiive scm'Ii,' wiirraiitius iiml (-'oiiditioiis iin> u part of tlio 
 oontract and must lie triu' it'afHrniativo, and it' promissory must Ite 
 (■01111)110(1 with, othcrwiso the (Contract may l»o aiinullud, though 
 mach' in good t'aitii. Warrantios may ho imiiliod, as well asoxproeis.-' 
 
 Thoso ruh's o.\[iross tho n^c-oivod and long sottkMl doctriiio of 
 tlio English law. They do not dittor from tho rulo8 of tho Frouch 
 law in tho iiai'ticular of making tho olausos and oouditiotis called 
 warrantios hinding pn'iiKi, facie upon tho insured, hut under tho 
 latter system tho (|Uostion of materiality is always admitted, while, 
 in tho former it is oxoluded and tho insured is hound hy the 
 special terms cd'his agreement, whether they he matei'ial oi' not.' 
 
 Tho Insurance Act of Ounada provides ' that no life policy 
 slinll eontain any eondition deehiring the policy void hy reason ot 
 any t«tatemont in tho application hoing untrue, unless such con- 
 dition is limited to oases in which such slatomont is material to 
 
 ' Siiiint Chap. IX. 
 
 ■' (lili.sc.n V. Small, I II. I-. C. :Cii. :t Kcnls ("(mini. iS>^. 1 I'll 117, lli", cli. H, (i. 1 
 Aril. (!2,->, pani. '.ij:!, p. (M», cli. 4. I Hell Coimii. .'ilill, C. C. L. (.'. 2UHI, L>I1H, 
 ■■' ItcpDTt cif ("imiiiii'H, ciii (-'. ('. L. (".it vol. 211. 
 * U. H. ("., flip. 121, see. 28, luul sue (Ul Vic. c. ;)•!, sec, 144, ss, 2 (O.) //(//•(( S 2(IS. 
 
m 
 
 WAKKANTIES. HEI'KE.SENTATIONS ANU CONCEALMENT, ETC. 
 
 386 
 
 tlie contnivt. And it has bt-en liokl by the Su[ireme Court of Caiuula ' 
 that, unless the iipiiliciition I'or iiisuranee is made part of tlie policy 
 by insertion or reference, the statements in it are not warranties 
 but mere collateral representations which would not avoid the 
 policy, unless the facts misstated were material to the risk. 
 
 And even if the applieation be considered as forming part of 
 the policy owing to its being coiniected with it by verbal testimony 
 and if the statements in it are held to be warranties, still, it' the 
 insured lias only pledged himself to the truth of his answers " so 
 far as known to him and material to tlie risk." the result is the 
 same, whetlier they, are warranties or collateral representations, and 
 it is a (piestion for the jury as to such knowledge and materiality." 
 
 As a rulewlien the application is referred to as forming a part 
 of the I'ontract, the statements therein contained are held to have 
 tlie force of warranties. Hut courts are indisposed to make a paper 
 by reference a wai'ranty and part of the contract unless clearly 
 obliged to.' 
 
 A mere reference to an apiilication or survey in general terras 
 does not make the contents warranties, but only re[»rcsentations. 
 And in Canada, even though the aiijdieatioii is made a part of the 
 policy, a misstatement or wrong answer will not in the absence of 
 an express warranty avoid the policy, unless it is material.' 
 
 Insurance companies seem sometimes by indulging in over- 
 caution, leading to the use of unneeessary stipulations regarding 
 warranties, to defeat their own object.' 
 
 Where the insured deelared that be answered to the best of 
 his knowledge and Iielief and omitted to state an accident from the 
 results of wliicii be was in bed live weeks, it is for tlie jury to say 
 whi^ther he wilfullv withheld the facts or forgot them or honcstlv 
 ihitught them of too little (•onse([in'nce to be mentioned." 
 
 If there is the slightest room for doubt tin' courts will hold a 
 stipulation a ri'presentation rather than a warranty." 
 
 I North Ilrilihli vtv. v. .Mcl.i'iiimii. 21 S. C. W., 2S1I, rfjiortod iiijni i liHii, - /i/. 
 
 ■■< I'liii'iiix IiiH. Co. V. Hfiiton. S" Intl. V.VI, May 15(1 ii. 'A. 
 
 * (JorliiH V. London Mut. Kirc Ins. t'o.. Id Ont. H. 2:11, ^1."), :il(l, rcpoilcd in/ro 
 S 2S2, and soe Wilson v. Standard Ins. Co., II.C. C. I'., 15 Can, I,. ,1. n. m. :):.', Fowkos 
 V. Manclu'stcr and London I-, Ahs., It H, & S, i(). Ml. !M7, 
 
 '' Continental Lilc Ins. Co. v. Ho^prs lilt III, 471, and s(>i' cases In May H'd, uoteH 
 :t and t. " .Millur v. Conled, Life Ass, Co,, It S. C. K. :m. 
 
 " WoiHwiek V, Canada i)lv. Ins. Co, Ct, of App, Ontario, 1) Ins. I„ ,J, m). May 
 102 n. 2. 
 
 25 
 
 m 
 
 1; 
 
386 
 
 INSDUANCE LAW OF CANADA. 
 
 If the company iu'copts an indoiinito or insufficient answer it 
 will be construed liberally in favor of the insured, as when a ques- 
 tion as to how the premises are occupied is answered " dwelling 
 etc,'' tliis will l)e hold as notice that a saloon is kept there.' The 
 <'onstructioii is always amtra i^rofeventes and the policy is prepared 
 by the company. ■ 
 
 Where there is a discrepancy or contiit!t between printed and 
 written matter in a contract the written portion prevails.' 
 
 The tendency of judicial decisions in England, Cana<la and the 
 United Statis is to pay more regard to the policy and less to 
 evidence of custom. The reason ot this is that policies, es[»ecially 
 tire and life, sire drawn with more care and skill than formerly and 
 have been corrected in accordance with decisions and made more 
 ilistinct and precise with the growth of actuarial experience.' 
 Fire and life policies are drawn as legal and not mercantile docu- 
 ments, and there are not many eases in whidi they can be con- 
 strued with reference to mercantile custom.' 
 
 In the recent Ontario case of 3Iav>if(ii'. Ijij'r Ins. Oi. and 
 (lOiufii))," however. Hurton, .1. A., recalled Tjord Blat'kbunrs dictum 
 to the following etfect : " Show thi> contract to tlic tirst hundred 
 business men von meet with on tlie street, and I do not doubt but 
 that each ot" them will place tlie same construi'tion upon it," adding 
 that he was free to admit that that construction was mucii more 
 likely to be correct than that of himself, who knew nothing of the 
 business, or that of a whole bench of judges, (pioting from memory 
 the substance of what was said. But Lord Westbury in the case of 
 Tliomi'siii) V. ITikIsd)!, L. R. 4, n. L. 1,, used languagi' almost as 
 treawonabU' ; and Lord IJi'amwell comments in a similar way upon 
 the incongruity ot referring to him who was neither a fishmonger 
 nor a carrier, nor with any knowledge (d their business, to say 
 whetliera contract made by a tishmonger and a carrier of llsh, who 
 
 ' (roiilnlock V. Maiiufai'. & .Moiv. .Mut. Kirc Ins. Co. lit U. ('. (Q. 11.) :m. Howe v. 
 himloii eiL'. Ins. Co. 12 U. C. (Cli.):m. Davis v. .Scottish Provt. Ins. Co. 1(1 U. C. 
 (C.H.)l"tl. 
 
 '•< Life Assn. of Scotd. v. Kosti-r 11 C. S. C. (llrd scrii's) ;i,-.l, ;171. Hirivll v. 
 UrytT !• A)))). I'liss, .'U"). Notnmn v. Anchor Co. I C. H. N. S. ITtl. Tillon v. Acci- 
 (liMitiil Dentil 17 C. M, N. S., 122. Smith v. Afciiiuntiil oto. Co. 22 I, T. N. S , HtU . 
 Soo iilso ,si/;h7» ii!i 2iVI, 201, iinil see index on simii! MiUjcct. 
 
 ' Holii'itson V. Krcni'li 1 Ivisi. i:i(), 111.") l,ord KlletihorouKh and si'c xiiftrn S 2(il, 
 
 '.Sue I't'iii'son V. Coinl. I'nlon 1 A. C. olO O'llanan. 
 
 ■> NoMli Urilisli & Morrantilc v. Mvi'i-pool & London & (ilolic lii I,. .1, Cli 'i\'. do 
 V. Moll'at li. H. 7 C. P. 2"), Pollers' Laws of Ins. p. ;il. 
 
 * Iteferri'd to at lenKtli Miii>rii si 7S. 
 
WAUUANTir.S, UKI'UKSKNTATIOX.-- AXD CONCEALMENT, ETC. 
 
 887 
 
 knew their business. \vu.s just tuul roasoiuible. It is woll, however 
 to point out tliiit one occasionally finds [lolicies which are open to 
 the objections suggested by the judges in the course ol'the argu- 
 niont in Pritchard's case, and that parties may possibly, in such 
 cases, be lett to tlu' mercy or the sense of justice ot" the assurance 
 company. 
 
 The point as to whetlier in an action brought on u policy and 
 where the (jucstion is whether facts withiield were material, 
 persons conversant with the l)usiness of insurance can be asked 
 their opinions on the sui>icct, is discussed by Judge Mackay.' 
 
 The insiireil is bound to a full representation of all facts show- 
 ing the nature and extent of the risk and which may attect the 
 rate of premium or prevent the contract being made at all.* He 
 is not bound to rei>resent sucli facts as are known to the insurer or 
 which the latter is presumed to know owing to their public char- 
 acter. Xor is he obliged to declare tacts covered by warrauty ex- 
 press or implied exce[it in answer to entpiiries made by the 
 insured.' 
 
 Ntisrepresentation or concealment either by error or design ot 
 a fai't of a nature to diminish the appreciation of the risk or change 
 the object of it is a cause of nullity even though the loss be not 
 caused by the fact misrepresented or concealed.' 
 
 Although fraudulent nusrepresentation or concealment on the 
 part either of the insurer or of the insured is in all cases a cause of 
 nullity, the obligation of the insured with respect to representa- 
 tion is satisfied when the fact is sultstaiitially as represented and 
 there is no material concealment.' These rules are common to the 
 law of insurance in all countries, although less rigor lias prevailed 
 in France than in Kngland, Canaihi and the United States in their 
 constriu'tion and ent'oreement." 
 
 When a party a|)plies to an agent of a tire insurance company 
 and secures insurance tlimugli him in the ordimiry mode and atler 
 the usual empiiries the fact that such party does not mention tlnit 
 he hail previously ai)plietl to another agent of the same company 
 
 I i:t I.. N. .'171. -See »ui>ni ^Xi. 
 
 •' -1 I'iinlossus n. .•)!»:(, puni. .">. C. 2H(I, JH'. :i Kouts Ooium. :iS5, 2H»!, 1 I'll. MS, Si). 
 C.t'.L.C. :ils5 iiiKl iii/rii S :ilK ' hi/ni, S lil'S. 
 
 •1 I. I'olli. Ams. c, :t, s. ;t, Ulll'.tit ; I Alauzot JUJ, p. .171, luid 2 Ih. Ill ; MumIi I.V2, I.VI, 
 17!i::t Ivi'iUsl'oin. li+t ; 1 I'li. si), Si, liilt; 1 Ai'ti. .->H, n. l!)l ; Ciiuuy & GoldMinltli, 2 
 L.C.W. 202, I Ih. 11)7. 1 \M\ e'om. .■>M2, I'. C.L.I'. 21SS, •24H». 
 
 " Uoporl of Coiiir."). on C.C.L.C. vol. ;i, p. 21'2. 
 
 m§ 
 
 ill'! 
 
388 
 
 INSURANCE LAW OF CANADA. 
 
 aii«l been rofusctl is iii)t the eonooalment of u matfrial fact to ren- 
 der the insurance voitl.' 
 
 With regar<l to the statements of third persons it seems to be 
 the settled law of England that when the insured does not ex- 
 pressly stipulate for the truth of the statements ,of third persons, 
 but only states his belief in their truth, fraudulent misrepresenta- 
 tions or concealment by them, but not known to the insured, will 
 not avoid the policy.^ 
 
 " All express warranty is a stipulation inserted in writing on 
 the face of the polic}', on the literal truth or fulfilment of which 
 the validity of the entire contract depends." This is the definition 
 given by Arnould,' which formerly met with general acceptance. 
 
 It is clear that a stipulation made a part of the policy by 
 reference may also h>i a warranty, and it is said that by a warranty 
 the insured sMpi , 'jr the absolute truth of the statement made 
 and the strict <>. ' «• j with some promised line of conduct, upon 
 penalty of forfeiture of his right to recover in ease of loss should 
 the statement ] <ove untrii". or the course of conduct promised l»o 
 unfulfilled. In thiri s !ow i^ ...ranty is an agreement in the nature 
 of a condition precedent, fuul like rhat must be strictly complied 
 with ; while a repi'esentation is collateral or preliminary to the con- 
 tract, and though false does not avoid the contract unless actually 
 material or clearly intended to be made material by the parties. 
 
 It has been said that whether the fact stated or the act stipu- 
 lated for as warranty be material to the risk or not is of no consc- 
 (pience, the contract being that the matter is as represented, or 
 shall be as promised ; and unless it proves so, whether from fraud, 
 mistake, negligence or other cause, not proceeding from the in- 
 sured, or the intervention of the law, or the act of God, the insured 
 can have no rlaim. 
 
 It has also been said tlnit one of the very objects of the war- 
 ranty is to preclude all controversy about the materiality or imma- 
 teriality of the statement ; the only (picstion being : has the war- 
 ranty been kept.' The special legislation above referred to must, 
 however, l)e consideretl as modifying this doetrine, and even undi'i- 
 
 • Goodwin V. LaiR'iiHliiri' Co. IS L.C.I. (Q.H.) 1, referred to trnprd S 2(!0, utid see 
 hifrti S 27liii. 
 
 •^ Wlieeltoii V. llardisty, y.H. allirnied in Kx. Cli, H Kl. & Ul . SW, and see inj'ni 
 § 2X1 b. 
 ^ 577. 
 
 * Miiy, I'xt, iind see Scott v. Quibee Fire Ins, Co, 2 R, de L. 12.'), luid see Privy 
 Council (tiant v, -Ktnn Ins, Co. 1.5 Moores V U. Hep. .51(1, infrti § 27H. 
 

 WAIIRAXTIES, REPRESENTATIONS AND CONCEALMENT, ETC. 389 
 
 the common law there are authoritie.s to tlie etteet that in doalini; 
 with warranties common sense is not to he lost sight ot ; that the 
 fair practical intent of the parties is to he sought and that suhstan- 
 tial fultilment of a warranty is enough. 
 
 It would certainly seem snhversive ot the true intent of the 
 contract to avoid it hecause of any triviiil misrepresentation not 
 material to either party.' 
 
 It has heen declared hy the Supreme Court of Canada that 
 where payment of an insurance risk is resisted on the ground ot 
 misrepresentation it ought to he made very clear that such misre- 
 presentation was made : that misrepresentation, made with intent 
 to deceive, vitiates, a policy, however trivial or immaterial to the 
 risk it may he ; hut if honestly made it oidy vitiates when materi- 
 ally and suhstantially incorrect. 
 
 Representation in a marine policy that the vessel insured was 
 Imilt in 1890 when the fact was that it was an old vessel exten- 
 sively repaired and given a new name and register, hut containing 
 the orisjinal enu:ine, hoiler and machincrv, with some of the old 
 material, was held a misrepresentation, which avoided the policy, 
 whether made with intent to deceive (U- not.- 
 
 In tile very recent English case of .//'//// /y/'o"///» v. Mxinnl Life 
 Ina. L'li. (if Xeir Yor/i;^ the Court of Appeal discussed at some 
 length the effect of tlie stipulation that the insured's statements 
 were "warranted to he true and are ottered to the company as a 
 c(jnsidcration of the I'ontract." Lopes, L. J., in that case said : 
 " AVhat is the etteet of (the clause Just cited)? On hehalf of the 
 plaintitt it was argued that there ought to have heen ex[iross 
 woi'ds in the contract to the eih'ct that the truth of the statements 
 was to he a condition precedent, if that was intended hy the com- 
 pany. Xow. I thiidv. this is a very good statement of the law : 
 In policies ot insurance on life an erroneous statement respecting 
 the life insuretl or mere silence respci'ting a niati'rial fact, in the 
 ahsonce of any fraudulent iuti-ntion. does not avoid tlu' [lolicv, 
 
 > May. l.")tl, and spe North UritMi i»t Mi'icaiil ile Iii^, {'<>. v. McLi'iinan, 21 .<.t'.H. 
 iss, ri'fi'iToil to mi/irii ami ri'pDrti'il iii/ni ^ l's:;, and Siotl v. I'ln' nix Ins, Co. in 1'. C. 
 
 - Supivnu' ft, of Canada (on apiuMl I'imiii Suiii'enu' Conrt ol Nova Scotia), The 
 Nova .Si-otia Marin i- Ins. Co. & Stevenson, L':t.S.(' I{. i;i7, arid soo .sly v, Ottawa Agri- 
 cultural Ins. Co, 21) r.C. r.W .V)T ; (ircet v. Citizons Ins. (.',). 27 li)'. 121, .") A.U. .")!«>, 
 reported inlni ^ 2T!ld ; Porter's I.iws of Ins. US, and Coekhuni, C..I.. in Mac<loimld 
 V. Law rnion Ins. Co. I,.K. !l C^H, at p. :«2, reported /)(.'(•(( iS 2Slh. 
 
 ■'72(Kn)Jclish) Law Tinies Heports 1 10 (IS!).".,) 
 
 I 
 
 If 
 
 !!, 
 
390 
 
 INSURANCE LAW OF CANADA. 
 
 unless tho policy oontiiiiis an express j^i'oviso that it shall be condi- 
 tional upon the truth of the declaration made by the insured. In 
 my opinion, the clause in the proposal does contain an express 
 condition. In two cases which have been cited to us. nanu'ly. 
 The Neiceastle Fire Tnstirruh'c Coinpan;/ v. ^laoiiorvan (8 Dow 255) 
 and Barvard v. F<iher (68 L. T. Rep." 179 ; (1893), 1 Q. B. 340), in 
 tlu' Court of Appeal, it has been hold that the word ' Avarranty " 
 used in a policy of insurance implies a condition precedent. It 
 was sought to distinguish those two cases from the present one on 
 the ground that they were decisions on fire policies, this 1)eing a 
 life policy. I cannot see any possible ground for drawing any 
 distinction in the meaning of 'warranty' as used in the two kinds 
 of insurance. But if there were anything in that point, I think 
 that it is enough for this case to hold that the last words of the 
 clause are equivalent to an agreement that the truth of the state- 
 ments forms the basis of the contract or that they are that on which 
 the contract is to he founded. I agree, therefore, with the con- 
 struction that has been put upon th.is clause by the Lord Chief 
 Justice and '.hat the statements which are thereiti referred to are 
 in tact untrue. I think that this application ought to be dis- 
 missed." 
 
 Rigby, L. J. : " I agree on both points, both as to the find- 
 ings of the jury and the ruling of the Lord Chief Justice. Either 
 ot the two points is enough to dispose of the case. (His Lordship 
 dealt with the findings of the jury.) As to the other point, the 
 construction of this clause in the proposal, I agree with what has 
 been said l)y my learned brethren. The deceased warranted that 
 the statements he had made were true in ever}- particular, not 
 merely substantially true, nor true in every material ])iirticular. 
 but true in every particular. The statements are ottered to the 
 company as a consideration of the contract which the deceased 
 agreed to accept as issued by the company in conformity with the 
 application. The literal truth of the statements being warranted, 
 it was made part of the consideration without which the contract 
 would not have been entered into at all. The mere fact that, as 
 in all these cases, a premium is also to be paid, does not seem to 
 me to affect the (piestion one way or the other." 
 
 It may he of interest to note, Ariu^uld and Duer are directly 
 at variance in regard to the nature of a ^'presentation and its con- 
 nection with the contract of insurance. Arnould maintains, and 
 
WARRANTIES, RKPRESENTATIUNS AND CONCEALMENT, ETC. 
 
 ;{i»l 
 
 the other Eiiglirih writers on iiisuraiiee lire of the sumk' opinion, 
 tliat ii reprosontiition is collateral to the contract ami invalidates 
 the policy only on the ground of fraud niton the insurer. Cut he 
 holds that the fraud re([uired is not moral, hut simply legal fraud. 
 It is sutHcietit if the insurer is misled, even hy an innocent mistake 
 of the other party, this constituting a fraud in coiitem[>lation ot law. 
 
 Duer, «)n the other hand, insists with his accustonied force 
 and clearness that every positive representation is a i»artofthe con- 
 tract of insurance, though not inserted in the [(olicy ; and that its 
 substantial correctness is thereby made a condition precedent on 
 which the validity of the jiolicy depends ; that a reitresentation is 
 e([uivalent to a warranty, except in regard to the strictness of ful- 
 filment rcrpiired ; " that where there is no actual inteiUion to 
 deceive, there is no other fraud than i>xists in every case where a 
 party relies on a promise that is not ful tilled ; " and that, therefore, 
 the efiect ot an innocent misreiiresentation in invalidating a policy 
 cannot be on the ground of fraud, Itut on account of tlie non-per- 
 formance of a condition precedent. - 
 
 IMiillips' doctrine is that " it is an implied condition of tlie 
 contract of insurance that it is free from misre[)resentation or con- 
 cealment, whether fraudulent or through mistake."'' 
 
 As we have seen, Art. 2487 (l.C.L.C. enai'ts that concealment 
 either by error or design of any fact of a nature to diminish the 
 assurer's aitpreciation of the risk is a cause of nullity. Xo point 
 in the law of insurance is better settled than that, in every case of 
 misrepresentation of existing facts material to the risk, the insurer 
 is not liable for an injury to the [iroperty insured, though it has no 
 itonnection with the tact misre[)resented, but is owing entirt'ly to 
 another cause. This is on the ground that the insurer has bi'en 
 misled by the misrepresentation, and would, if tlu- fact had been 
 truly stated, either have declined the risk entirely, or demanded a 
 larger premium. I)Ut the applicability of this doctrine to protnis- 
 Hory representations has iteen denied, and it i> held that the mate- 
 rial increase of the risk in* a breach of a representation of that 
 character constitutes in itself no dct'ence tor the insurt'r, l)ut that 
 he must also show that but for its non-fullilment the loss would not 
 have occurred.' 
 
 ' ArnoiiUi on Ins. V.tii. - Diu'foii Ins., vol. 2, Lect. II, p. (m'A. 
 
 ■■' 1 I'liiUips, Ins. 2S7. * Stebl)ins v. (ilobe Ins. Co., 2 Hull (i:tH, and soe IH I..N. :U:i, 
 
 I 
 
 ; "i 
 
 ,':■ 1 
 
1 .Mil 
 
 
 1; . "^i^l 1 
 
 .! ~^^^^^|lll 
 
 r ■ 
 
 892 
 
 INSURANCE LAW OF CANADA. 
 
 268. Dominion and provincial legislation. — Tii s1ioi-t.it may 
 bo said that it lias lieon found difficult to dctermiiiu how hir strict 
 accunicy is to he exacted from tlie insured in tlie statements made l)y 
 him at tlie time the insunince is effected. To meet this difficulty 
 special legislation has l)een enacted by the Dominion Parliament 
 (tlie coiiHtitutionality of which is doubtful )' and by the legis- 
 latures of Ontario ■', Quebec," Manitoba anil British Columbia. ' 
 We shall consider the effect of oacli of these enactments serlath)i. 
 
 Under the Insurance Act of Canada '' no condition, stipu- 
 hition or [iroviso modifying or impairing the effect of any policy or 
 certificate of life insurance, issiu'd after the I Jan., l!s8t!, by any 
 company doing business within Canada under the authority ot tlie 
 Parliament of Canada, shall bo good or valid unless such condition, 
 stipulation or proviso is set out in full on the face or i)ack of the 
 policy And no policy or certificate shall lie avoided l)y reason of 
 any statement contained in the application therefor being untrue, 
 unless such condition is limited to eases in which such statement is 
 material tn the conti'act." 
 
 An ' ' where in any contract of life assurance entered info 
 wiih any company licensetl to carry on business in Canada under 
 the provisions t)t the Insurance Act of Canada the ago of the 
 person whose life is insured is given erroneously in any statement 
 or warranty made for the purposjs of the (■<)ntract, su<'h contract 
 shall not be avoided by reason only of the age being other than as 
 stated or warranted, if it a[)i)ears tliat such statement or warranty 
 was made in good fairl 
 
 1 and without anv intention 
 
 to d 
 
 eceive 
 
 but 
 
 tl 
 
 le person entitled to recovei- on such 
 
 ;i CO 
 
 n tract shall not be e 
 
 titled 
 
 to recovei' more 
 
 than an amount which 1 
 
 lear; 
 
 tl 
 
 10 
 
 n- 
 
 ame ratio 
 
 to the sum that such person would otherwise bo entitled to recover 
 as the i)reinium proiierto the state<l age of such person bears to the 
 premium [)ro[)er to the at'tual ago of such person, the stated age and 
 actual age being both taken as to the date of the contract, but in no 
 case shall the amount receivable exceed the amount stafe<l or indi- 
 cated in the conti'act. As has been pointed out. the constitutionality 
 of these provisions is doubtful. They s( ni ultra mrex of the powers 
 conferred bv our constitution on the Dominion Parliament.' 
 
 ' \\. S. ('. I', tlil. s. liT. si'i' sii))r(i ^i ;U, :tS. - Cll \'ic., c. :i() (O), s. lliS, ss. 1 M'n . 
 
 •'('. C. L. C. -JISK. ^ H, S. M. ISUI, Clip. r.(), Stat. con. 1. 
 
 » B. C. Ills. I'olicv Act 1,S!«, c. 12, Mtiit. con. 1, ''Sec .si«/j(y( note 1. 
 
 ' Fov otFc'ct of this tlansc ^^l.•e Venner v. Snn Lifi' Ins. Co. siitirii j i")2 1). 
 
 "^ .")" \'ic.. <•. ^11 (Can.) '' r/'/c sii/irri *!§ 'M, .'H 
 
WARRANTIKS, REPRESENTATIONS AND CONCEALMENT, ETC. 
 
 308 
 
 Tilt' Ontario Le'tfislatiiro has" cnu'tod a statutory ccMiditioii 
 witli rou;anl to liro insurance to the ottect that if thi' in^••.lre(l 
 ih'st'riho tho insuri'd proi^-rty otherwise than it really is, to tlie 
 |preju(liee of tlie company, or niisrepresonts or omits any cirenm- 
 stanee material to be maih' known to the company in order to 
 enable it to judge of the risk, such insuraiu-e shall Vn' invalid in so 
 far as it atteets the property in regard to which the misrepresen- 
 tation or omission is ma(U'. And the policy is deemeil to be in 
 accord witli the a[tpIication unless the company points out a ditter- 
 ence.' 
 
 It has also been enacted in Ontario - that all the terms and 
 conditions of the contract mnst be set out i>y the company in full 
 on the face or back of the instrument. And the coiitract must not 
 contain or have endorsed on it or lie made subject to any provision 
 jiroviding that such contract shall lie avoided liy reason of any 
 statement in the application, unless such condition is limited to 
 statements material to the contract, and the statement must be 
 material to avoid the contract. In a recent case, ' Rose, J., comment- 
 ing on this provision said : " Does this section require the con- 
 dition to lie limited in terms as follows : — This fonditioii is limited 
 to ca.ses in irhii'h .sxch stdteineiit is material to t/ie contract. Or wouhl 
 it be sufHcient if the cases to which the condition is made to apply 
 are cases in which the statement is material to the risk. T have 
 come to the conclusion that the insured must have clear and 
 distinct notice in the words of the statute." The question of 
 materiality is in all cases a (piestion of fact tor the jury, or for the 
 court if there be no jury. But the application may be considered 
 with the policy and the court determines how far the insurer was 
 induced to make the contract by any material misrepresentation in 
 the application.' 
 
 As to error in age the <)ntario legislature has enacted a pro- 
 vision similar to that of the Dominion Act.' 
 
 Under the Civil Code of Lower Canada the insured is obliged 
 to represent to the insurer fully and fairly every fact which shows 
 the nature and extent of the risk, and which may prevent the 
 undertaking of it, or aftect the rate of premium." But representa- 
 
 %W 
 
 .Mi: 
 
 \\ 
 
 ■1 ^\\' 
 
 • ' 
 
 :> l' ■ 
 
 
 ?HM: 
 
 
 ■m\ 
 
 
 '. '\\\ 
 
 ■ 
 
 I ■ 
 
 I ()<) Vic, c. :tt> (Ol s. Ids, ss. 2, imd see Moore v. CitiziMi's Fire Ins. Cn. 1 1 .\. H. at 
 -)S7. -^ m \'ic.. c. :t(! (O) s. 144 .s8, 1. 
 
 ■' London West v. liOiulon Guarantee Co., 2(i O. U. -Vifl, rcporloil iu/ni <: 27S. 
 * till Vie, e. :<(! (O), s. 14 J, .ss. 1. •• (iO Vic. c. :i(i (0> s. 1 li). ss I. 
 "V. (". L. C. 21S.-i&se(i. 
 
894 
 
 IN.SUUANCE LAW uF CAN'ADA. 
 
 
 mi 
 
 tioiH not coiitaiiiL'tl in the [lolicy or minle a jmrt ot" it are not 
 admitted to conti'ol it;? cftn^triiction or ettoct.' 
 
 The contract ot' Hfe insurance is nlnirriniac ti'lel. The insured 
 is not ol»liged to i'e[»resent taet^i known to the insurer or which 
 from thi'ir puhlic ciuira<'tfr or notoriety lie is pri'sumeil to know; 
 nor is !u' oltliifcd to declare facts covered l»y wai-ranty, express or 
 implied, except in answer to cuipiirit's made l»y the insurer.- 
 
 Nrisreprescntatitni or conci-almcnt, either hy rrror or desiyjn of 
 a fact of a nature to dinunish the appreciation of the risk or change 
 the object of it is a «"iusc ot nullity.' The contract mav in such 
 case he annulled although the loss Inis not in any degree arisen 
 from the fact misre[ircsi'nted or coin-caled. Fraudulent misrepre- 
 sentation or concealment on the part either of the ins\irer orof the 
 insureil is in all cases a cause nf nullity of the cDUtract in favor of 
 the innocent party. 
 
 The(d)ligatioi) of the insured with respect to representation is 
 satistied when the fact is sui)stantiaily as rei»resented and there is 
 no nniterial concealment. 
 
 Warranties and iondition~ are a part nf the contract and 
 must he true if atHnnative ami if promissory mu>t he complietl 
 with ; otherwise the contract may l)c annulled, notwithstanding 
 the good faith of the insured. They are either exi)ress or implied. 
 An express warranty is a stipulation or condition expressed in the 
 poliey (n- so referi'ed to in it as to nnike [lart of the policy.' 
 
 As to erriM' of age the QiU'la-e enactment is that the decla- 
 ration in the [toliey constitutes a warranty upon the correctness of 
 wluch the contract depcmls.' In view of this Quebec enactment 
 the ipuistion of the constitutionality of the Dominion enactment' is 
 of importance. It would seem that the Domiinon legislation must 
 be lield xUra circs and that in Quebec error in age is a cause of 
 nullity at present. Relief from this onerous position can be oi>- 
 tained only by the future intervention of the Quebec legislature 
 
 Manitolm and British Columbia have enacted legislation 
 similar to that of the (jntario statutory conditions above re- 
 ferred to. 
 
 As we have seen, in cases roganling policies governed 1)y the 
 
 1 C. C. L. C. -JSTO. -' Suprn S 'Hu. ■• Ih. 
 
 * C. C. L. C. ;itS(i ft seij. and st-e supra i 'Hu. 
 
 'C. C. L. C. l!58Hiind .see Hartigiiii v. International Life Ass. Co. S L. C. .T, 203- 
 
 " Seesif/)ro. 
 
»ll 
 
 WAIUiANTIKS, UKl'UESENTATroXS AND CONCEALMENT, ETC. 
 
 395 
 
 sfjitiitory conditions tlu' (listiuetion Ix'twecn wiirranties and iv|irt'- 
 scntations so miudi discussod i-i'asos to have much practical signifi- 
 cance. WhcthiT warranty or ivpivscntation it doc< nor t'ortVit tlio 
 contract nnless iiiatcrial. 
 
 269. Description of property and premises -Grocery— Sale 
 of liquor by retail. The iilaiiitiHdocriUini;' liimsolf in tlic ain'li- 
 cation as a grocer and liis stort' as being used as a grocery insured 
 witli det'ondants his stock of groceries, etc., tlierein and without 
 tiie l-cninvli'dge or assent of the defendants lnd)itually retailed lii|Uor 
 there, hut the jury found that the risk was not therchy increased. 
 
 It was decided no niisre[iresentation or concealment of a mate- 
 rial fact ; that in insuring a groci-ry defendants knew that licjuor 
 might he sold there ami that the plaintiff was entitled to recover.' 
 
 270. Truthful answers— Good faith is of the essence of the 
 contract.— It has heeii saiil, that there is no more reasonahle or 
 necessary renuiremeiit than that when one part}' is induced to enter 
 into a contract with anotlier, the latter is required to give humi. 
 tide and intelligihle information in regard to material matters of 
 which the other is ignorant, and in no easi' is the rule more neces- 
 sary than in applications for insurance.- The assured must answer 
 truthfully all (piestions giving intbrmation material to the risk.' 
 Uood fiiith is of the essence of the contract of insurance to a greater 
 extent than in most other contracts.' 
 
 270a. True description an implied warranty Insurance 
 covers all effects fallingr within the description. It is an implied 
 warranty on the [lart of the insured that his descrijition of the 
 object of the insurance shall 1)e such as to fdiow truly under what 
 class of risks it falls according to the proposals and conditions of 
 the policy."' An insurance upon effei'ts indeterminately as being 
 in a certain [ilacc is not limited to the particular effects which are 
 there at the time of insurance, but attaches to all those falling 
 within the description contained in the policy which ari' in the 
 [ilace at the time of the loss, unless a different intention is indicated 
 in the policy." 
 
 I Nicliolsoii V. I'liMMiix Ins. Co., Vi Q. H., ;15',) Q. B. I). 
 
 - Gore V. Sanio, 2 S. C. IJ. 411. ' Quinliin v. Union, s A. R MTii. 
 
 Jfiuaniiiin v. Connely, 20 S. C. H. 2iis. .Maclennan, 17. 
 
 ■'C. C. L.C. 2.">72, 1 Hi'UCom. .">tl. Kllis (Shaw.s) p. JS. Qiu-nnaull nn. ITlut 
 sw|. l?ou(l()Us(|ni<'- n. 202, p. 211. nn. KM, 111, 112. 
 
 " C. C. L. C. 25";i. 2 I'ardessus Dr. Com. n. .5!)4, p. 4S!). AngoU 1(11, S 2. Quen- 
 nanlt Ash. 78, nomlous(iuie n. 122. See also iii/ni chap. xvi. 
 
 ,i ! 
 
390 
 
 IXSnUNCE LAW OF CANADA. 
 
 270b. Where description of property did not imply a 
 warranty.- Tlio wonls •■ iiiiiison en liois a T-tre lainbrissi'o cii 
 brii^ue," coiitainod in the description i)t' the property, insured undoi' 
 the policy of insurance on wliicli the action was l)r<.nght, were hehl 
 merely descriptive and did not imply a warranty that the house 
 should he immediately covered with bricks, especially if the insur- 
 ance had been renewed when the house was still in the same state.' 
 
 270c. Warranty as to declaration of interest presumed re- 
 nounced, if not invoked by insurer. The duty of the insured, who 
 is not owner, to declare his interest even when exacted as a war- 
 ranty, is only u relative nullity which can be invoked by the insurer 
 and the latter is pres\imc(l to liave renounced it. it' he does not 
 invoke it." 
 
 27J. Misdescription of goods— Want of proof — In an action 
 on an insurant'c policy issued by the respondents by which they 
 insured certain articles known as " scythe sharpeners," which weie 
 then being manufactured by the appellants, and also the materials 
 used by the appellants for their manutacturin^- establishment, for 
 a sum of $800: — Alter the insurance was ctlected the appellants 
 moved their manufacturing estaltlishmont into a new building and 
 obtaineil the consent of the respondents that the policy already 
 effected should cover the risk in the new building. The respond- 
 ents pleadc<l to the action that the insurance had been obtained by 
 false and fraudulent representations as to the value, nature and 
 (pudity of the goods insured, and that subserpicntly to the issuing 
 of the policy the apjjellants representi'd that tlie risk in the new 
 building was not increased, when in tact it was materially in- 
 creased : that the apju'llants sustained no loss c»r damage, as the 
 articles insured were worthless, and further, that no expertise was 
 ever liad as required by \ti\v. Tlu' court below dismissed the action, 
 but the Court of Appeals reversed this judgmcn.t on the ground of 
 want of proof of fraud or misrepresentation and allowed S400.' 
 
 271a. Misdescription of premises Agent's fault Parol 
 evidence. — "When the application is rcterred to in the policy as 
 I'orniing part of it it will control its jirovisions whert' thert> is a 
 variance with respect to desci'iption of the premises insured. A 
 
 ' Xorthoni Ins. Co. & I'ivvonI 1 Q. H. I!. liTS, 
 
 -' Si. .Vnimiulv. gui'boe Ass. Co., Itg. i,.H. UVl. 
 
 ■' IIoliiH's V, Milt . Firi' IiiH, Co. of Staiisleiul und Slii>rl)rool;i'. 1 Q.ll.K. SI. 
 
WARRANTIES, REPRESENTATIONS AND CONCEALMENT, ETC, 
 
 397 
 
 miBdoscriptioii in the policy, iiiticrtotl there hy the agent of the 
 mpaiiy, will be deemed the taiilt of" the company, and parol evi- 
 lence will be admitted to prove the intention ot' the assured.' 
 
 CO 
 
 ( 
 
 271b. Misrepresentation as to value of property. — In ettect- 
 ii\g insurance, in all to the amount of So, 200, the plaintitt repre- 
 sented the property as being of the cash value of $5,339 on two 
 occasions and !|5,500 on a third occasion. In an action on the 
 policies the jury found that the value was $4,000 when tirst in- 
 sured, and $4,200 when the additional insurance was ertected ; that 
 the plaintitt had misrepresented the value, but not intentionally or 
 wilfully ; that it was not material that the true value should be 
 made known to the com[tany, and that the com[)any intended that 
 the goods should be insuretl to their value ; and rendered a verdict 
 in tavor of the plaintiff for $3,100, which the Divisional Court sub- 
 sequently refused to set aside. 
 
 The court held (reversing the judgment of the court below) 
 that under the circumstances, and in view of the nature of the 
 goods insuretl, the overvaluation was such as under the tirst 
 statutory condition in the policy rendered the same void.- 
 
 272. Description of building'. — A policy of in!^urance describ- 
 ing the premises as a house bounded in the rear by a stone build- 
 ing covered with tin, and by a yard, in which yard there was being 
 erected a tirst-class store which would communicate with the 
 building assured, is not incorrect and not mill, although it was 
 provi'd tiiat there was, between the house and the stone building, a 
 brick building covered with shingles communicating at both doors, 
 inasmuch as the omission to mention such doors in the di'scription 
 was not proved to have been a fraudulent concealment, and inas- 
 much as it was not established that the tire hail been occasioncil or 
 iuul extended by means of such apertures.' 
 
 272a. Description of locality— Consent of agent to renewal 
 —Application for insurance made by a clerk Incomplete des- 
 cription. A policy of insurance was effected on goods of the 
 insured in No. 319 and the insurance was atYiU'wards reni'wed 
 without variation of its original conditions. IJeforc the renewal 
 the insured had exten<led his premises into No. 315, and the com- 
 
 ' Vezlnii V, C'liniiilii Kire k Miiriiit' Ins. I'o. l) Q.li.H, (15, but si-e infra i lisTd. 
 •i Moore V. Citizens Fire Ins. Co. It A.H. 582. 
 ' Casey & (iolds-niilli, 4 L.U.K. KIT, g.H. 
 
 ;:l 
 
 i;; 
 
 \\ 
 
 »!'■! 
 
 i 
 
If 
 
 
 398 
 
 INSURANCE LAW OF CANADA. 
 
 imny's agent visited the establishment and saw the position of both 
 buiklings occupied by the insured and the goods contained therein. 
 A lire destroyed the goods in No. 315 and slightly injured those in 
 No. 319. In an action on the policy claiming for the loss both in 
 in jSTo. 319 and in No. 315, the jury found the facts as above stateil 
 and both parties moved for judgment on the verdict. 
 
 The court held, that, on the facts found by the jury, the judg- 
 ment should be for the defendants as to the loss of goods in No. 
 315, the inspection of the premises by the company's agent, before 
 the renewal of the policy, not being sufficient to establish an agree- 
 ment to vary the terms of the polic}- in respect ot the locality in 
 whicli the goods were represented to be.' 
 
 "Where the policy covered plaintifis shop, 29 William Street, 
 with its contents, the agent had not seen the place and plainiift's 
 clerk who applied for the insurance did not mention that the fur- 
 niture, painting and varnishing de[uirtmeni was on the top Hats ot 
 Nos. 25 and 27, which communicated with No. 29 through open- 
 ings in the wall : — It was decided the policy did not cover the 
 goods in Nos. 25.- 
 
 272b. Description of locality Omission by agrent.— On the 
 
 9th of August, 1871, the plaititifls (respondents) a[»pliod to the 
 defendants (appellants) thrcnigh their agent II. at Hamilton, for an 
 insurance on goods to the amount of $6000, contained in a store on 
 tlie south side of King Street, described in the application as No. 
 
 272 in defendants' special taritt l)ook and marked Xo. 1 on a dia- 
 gram endorsed in pencil by the secretary ot the company at Mon- 
 treal, the diagram being a copy of a diagram on a [>revious applica- 
 tion for policies by insured. The premium was fixed at t)2j cents 
 on the $100 and Wiis paid on the 10th August. On that day the 
 plaintiff gave a written Jiotice to 11. that they had added two flats 
 next door to their former premises (which would form part of No. 
 
 273 in defendants' special taritt book) and that part of their stock 
 was then in these new flats. A few days later 11. inspected the 
 building and said the rate would have to be increased in conse- 
 quence of the cuttings. On the 29th August II. notified defen- 
 dants of the opening into the adjoiiung building, but did not coin- 
 
 ' Citizens Iiw. and luvi'st, Co. & Liijoif, M. L. !{., I Q, II. '.m. luid nee 
 also Cilizt'iiH Ins. Co, & Uolliuid, 1 I-. N. <i04. C. R, \ll L. C. .1. 2H2, and I{olliiii.l v. 
 Nortli nritlsli and More. Ins. Co., 14 I,. C. J. («), S. C. IMfiii. 
 
 ^ Wilder V. I'h.uiii.x Ins. Co. 1 H. deJ. Si. 
 

 
 1 
 
 WARRANTIES, REPRESENTATIONS AND CONCEALMENT, ETC. 
 
 399 
 
 municate tho written notice in its entirety. An increaf^ed rate 
 making it 1 per cent, was fixed and paid by the 23rd September, 
 the agent issuing an interim recei[)t, dated back to the 9th Augusr, 
 tor the full premium. The policy issued immediately thereafter, 
 dated as of the 9th August, and refei'ring to the diagram endorsed 
 (lu ti :' application of the insured, S. T. -172. On the policy there 
 was an X. B. in reference to an "opening in the east end gable in 
 the premises, through which edmmunieation was had with the 
 adjoining liouse, occupied by one G.'' The p(dicy was handed to 
 the plaintiff in September, 1871, and the loss by fire occurred in 
 March, 1872. The plaintiff brought an action in the Court of 
 Queeirs Bench (Ontario) on the [loliey, Init failed on the ex^iress 
 ground that the description therein did not extend to oi- cover 
 goods wliieh were in the added flats. Tliereupon tlie plaintiffs 
 fyled their bill to reform the poliey or restrain the defendants from 
 pleading in the action at law that the policy covered only goods 
 eontained in S. T. No. 272. In the Sui)reme Court it was held by 
 liichards, C. J., Strong and Tasehereau, .T..I., that the true con- 
 struction of the application, written notice and interim receipt, had 
 together establisheil a contrat't of insurance between the plaintiffs 
 and the defendants, embracing the goods situated in the flats 
 added by plaintiff and that, notwithstanding the aceeptance of the 
 policy, which did not cover goods in the added flats plaintiffs were 
 entitled to recover for the loss sustained in respect of the goods 
 contained in such added flats. 
 
 Ritciiie. Fournier and Henry, .I..I.. held, however, that tlu' 
 evidence did not establish an application for insurance on the goods 
 in the added flats, nor an agrei-nicnt tor such insurance l>y the 
 agent, but that the application, interim receipt or agreement weri' 
 conflned to the goods in the premises S. T. No. 272. 
 
 Tlie court l)eing e(iually divided the a[)peal was dismissed 
 without costs.' 
 
 2720. Building described as " isolated." When the insured 
 in his ai-plication describe<l a building as •• isolateil " which it was 
 in the ordinary sense of the tt-rm, a printi'd noti- on the applii'atioii 
 l)eIo\v the signature of the insured explaining "isolated" as mean- 
 ing 100 feet from any building, did not biiul tlie insured, he being 
 in good faith and his attention not having been called to the note.'- 
 
 III 
 
 ' r.ivi'i'pDol iinil liiiniluii iitiii tilol)!' Ins. Co v. Wyltl. IS. (' It. (K)l, 
 •! Piuwi.l V giioen Iii.s. Cn. 21 I,. C. J. Ill 
 
im 
 
 400 
 
 INSURANCE LAW OF CANADA. 
 
 ill 
 
 Si H 
 
 m 
 
 m 
 
 273. Words importing an agreement considered a warranty. 
 
 — The Privy Council have held that if the words used import an 
 agreement that the vessel shall navigate, then they must he con- 
 sidered as a warranty, and the engagement not liaving been per- 
 formed, whether material or immaterial, the insurers are discharged. 
 In the present case, the words used contained no contract to navi- 
 gate, but merely indicated an intention, and therefore did not 
 amount to a warranty.' 
 
 In another case there was an express guarantee that the 
 steamer insured should navigate, and the insurers were not answer- 
 able for the loss suffered by the burning of the boat while lying in 
 the dock.- 
 
 274. Increase of risk— Steam saw mill on adjoining land.— 
 
 A condition of a tire insurance policy on a saw mill stated that "If 
 the risk is increased or changed by any means whatever," without 
 written permission of the insurers, the policy shall be void. 
 
 In an action on the policy for a loss the defendants pleaded 
 that before the loss, without the written permission of the defend- 
 ants, the risk was materially increased and changed by the placing 
 of a portable steam saw mill within 99 feet of the plaintiff's mill. 
 
 The court considered (Wetmore and Tuck, J. J., dissenting), that 
 the plea was bad in not alleging that the risk was increased by any 
 act of the plaintiff or by his direction. That the erection of a 
 steam saw mill by a stranger on laud adjoining that on which the 
 plaintiff's mill was built, as mentioned in the policy, did not come 
 witViin the words of the citiidition — '"if the risk is increased," etc. 
 
 A coixlition of the policy provided that the defendants should 
 not be liable if the assured nuide any false representation of the 
 condition, situation or occupancy of tlie jiroperty, or if he omittetl 
 to mention anything relating thereto material to be known in 
 estimating the risk. The ilefendants pleaded that before the policy 
 issued the plaintiff made a wari-anty that the supply of water 
 power to his mill was ample during the whole year ; that such 
 statement was nniterial to be known in estinuiting the risk, and 
 that the policy was issued and the cotitract nnule on the face ot 
 such warranty, but that the supply t»f water was not amitle for the 
 whole year, either at the time of issuing the policy or ot the loss. 
 
 I I'rivy Council, Uriuitv. Aitna, Ins. Co., 15 Moore's P. (-'. Hep. .">!(!, vi'fcrn'd 
 to aiipra S -"7, lint sec fSS 2H71) iiiul scq. 
 
 - Q. H. (irant v. Iviuitiihlc Kin- Ins. Co. 11 L. C. R. 4IK}. See also I'ear.'ion v, 
 Com, rriioii A>s. Co, StM' nis, 1 App, Ciis 41IS, ri'iiortcil infrii Chiip. XVI. 
 
« I 
 
 WARRANTIES, UEl'KESENTATIONS AND CONCEALMENT, ETC. 
 
 401 
 
 Demurrer on that irrouiul that the alleged warranty was not 
 stated to he a part of tlie contract of insurance, and therefore the 
 hreach of it was no defence to the action ; also that tlie plea did 
 not allege that the warranty was false to the plaintitt's knowledge. 
 
 The court held— Wetmore, King, Tuck, J.J. (Allen, C.J. and 
 Palmer, J., dissenting) that tlie plea was good. 
 
 The distinction hetwcen a warranty and a representation was 
 considered.' 
 
 271a. Increase of risk by subletting— Additional insurance. 
 
 — The plaintiffs effected insurance on premises descrihed as heing 
 occupied hy them as a honded warehouse and hy their tenants as 
 offices, and su])let part of the premises to a common warehouseman 
 to he used for the storage of goods, and also effected additional 
 insurance on the property insured, without giving notice to the in- 
 surers, as required hy the conditions endorsed on tlie hack of the 
 policy. 
 
 It was considered a hreach of warranty on the part of the 
 insurers, and that the policy in consequence was voi<l and of no 
 effect. - 
 
 274b. Increase of risk— Premises relet— Notice to aiarent and 
 company. — In an Ontario case the plaintiff's premises l)eing in- 
 sured as "occujiicd hy a tenant as a grocery store and dwelling," 
 were relet to his son-in-hnv, who used them for dealing in furni- 
 ture and had a small room hehind the shop, in which he had a 
 i-arpcntcr's liench and tools and did repairing and rough work. 
 1)., the defcnchmts' local agent, was notifieil of this change and 
 went on tlie premises and saw the tetnxnt at work making a desk, 
 lie wrote to the head ofHce at jilaiiitiff 's request, notifying them 
 of this, and they miswered that il the policy were sent with a let- 
 ter of explanation they would consent in writing on it, adding" Is 
 there woodwork doiu' on tlic premises?" The matter was then 
 allowed to drop. 
 
 The ]iolicy contained a condition that "any change materinl 
 to the risk, and within the control or knowledge of the assured, 
 shall void the pidicy as regards the part affected tlierehy. unless 
 the change he promptly notified in Avriting to the company or its 
 
 I Copp V. (Jliisnow & rioiulon Ins. Co. !)() Nfw linins. Hi'p. Il»". 
 'Chaimmti et 111. V. The Lancashire Ins. Co. iind FrivKcr l.'t LCI. ltd, S.C. 
 1S(1H;241K)(\ C.L. C. 
 26 
 
 i! 
 
 .(Ji 
 t 
 
402 
 
 INSURANCE LAW OF CANADA. 
 
 local agont, and the company so notiliod may cancel the policy." 
 The jury were asked whether the change was materuil, and whether 
 it was fairly communicated tu the defendants, and they found for 
 the plaintiff. 
 
 The fourt held verdict should not be <listurbed. Setiihle, that 
 the transmission of the policy for endorsement was not essential.' 
 
 2He. Increase of risk— Cotton dried in a tannery. — Certain 
 premises insured as a tannery and leather dressing house were used 
 for drying nine hales of eotton, a suhstanee whieh it was proved 
 was more intlaminahle than the stock of a tainiery. Fire lirst ap- 
 peared in the cotton. IJy a condition of the policy the use ot the 
 premises for more lia/.ardous [)urposes voided the contract. The 
 jury found that the drying of cotton was not a material alteration 
 in use of the [)remises, and that the alteration had not increased 
 the risk. 
 
 It was held, tliert' heing t'vidence that the insured liy the use 
 of the premises I'oi' drying cotton had increasi'd the risk, tlie verdict 
 Wiis contrary to the evidence adduced and a new trial was onlered." 
 
 274d. Increase of risk— Spool factory Manufacture of ex- 
 celsior. — In another case, decided hy the Sni»reme Court of 
 Canada, a policy on a l)uilding described in the a^jplication for in- 
 flurai\ce as a spo(j! factory containeil the following conditions : 
 "That in case the ahove described premises shall, at any time dur- 
 ing the continuance of this insurani-e, b(> appropriated oi' applied 
 to (U- used for the [turposc of carrying on or exercising thennn any 
 trade, business or vocation denoiuimited 'hazardous' or '(>xtra 
 liazardous," or for the puri)ose of storing, using or vending tluM-eiii 
 any of the goods, articles or mendnnidisedenominate*! ' hazardous ' 
 or 'extra hazardous,' unless otherwise specially provided for, or 
 hereafter agreed to l>y the defendant company in writing, or added 
 to or endorsed (tn this [)olicy, then this policy shall beconu' void. 
 Any change material to tlie risk, and within the control or knowl- 
 edge of the assured, shall void the policy as to that part attected 
 thereby, uidess the change is promptly notified in writing to the 
 company or its local ag<'nl." 
 
 It was held, reversing judgment of court below, that flic in- 
 
 > I'ock V. I'hii'tii.x Mut. Ills. Co. t."i(i H. (!20, Q.Il O. , 
 
 ''C.U. Mooiicy V IrniK'iiiil Iiis. Co, M.1..K, It S.C. HIJll, and mcc iilso Tcs.sicr v, 
 Co. .Vss, .Mut. (!<■ Uiinouski, 111 It. I,. 1 1.".. 
 
WARRANTIES. REPRESENTATIONS AND CONCEALMENT, ETC. 
 
 403 
 
 troductioii, without, iiotici' to tlio comiKiiiy, of the maiiut'ucturo of 
 excelsior into tiu' insured premises, in iuhlition to the manufacture 
 ofsi)ools, avoided the poliey under tliese conditions, the evidoneo 
 establishing clearly, and there being no evidence to the contrary, 
 that such maiuifiu-ture in itself was a hazardous, if not an extra 
 hazardous, businrss, notwithstanding that on the trial ot the action 
 on the policy the jury found, in answers to (juestions sultmitted to 
 them, that such aihlitional nninufai'ture was less liazar(h)us than 
 that of spools and did not increase the risk on the premises 
 insured.' 
 
 275. Construction of policy— Asylum for insane, main 
 building: — The asylum for the insane, liondon, consists ot a centre 
 building containing all necessary accommodation for i)atientfl, etc., 
 and a kitchen, laundi-y anil engine room, built ot brick and roofed 
 with slate, situate some T)!) feet to the rear of the middle of tlu' 
 centre building and conneeted with it by a passage or covered way 
 with brick walls about 10 t'eet high and also roofed with slate, and 
 with a tramway to convey food from the kitchen to the southern 
 portion of the centre building. A policy of insurance against tire 
 insuretl the " nniin building." 
 
 It was held, atlii'miiig judgment of Court of A[t{teal for 
 Ontario and the Divisional ('ourt, th it the poHi'v covered the 
 kitchen, laumlry and engine room.- 
 
 276. Insurance of a tug — A tug is not a building within the 
 meaning of the clause of the tenth statutory condition.' 
 
 277. Warranty as to policies being identical, condition 
 precedent — In a very recent ease in the Knglish Court of Appi'al, 
 the claus(> in a tire policy, which was subscribed by the under- 
 writer against wlumi this action was brought and others, was as 
 follows : " Warranted to be at tlie same rate, terms, anil identical 
 interest as (two other insuraiu'e c()m[)aniert naming tiiem and 
 giving the amount to each.)" 
 
 In the policy of one of the two companies the premium and 
 also the interest insured ditfered from those in the defendant's 
 policy. 'I'lie court decideil. that the warranty must be tak(Wi to 
 be a condition i)receilent ; that tiie Itiets showed that there had 
 
 1 SoviTiM^ii Kirc Ills. ('(I. V. Moil' II .S.C.H. (112, 
 
 .i Siipi'eiiu' ("durt of ("iiiijulii, -I'll iia Ass. t'o. v. Atly.-iicnl. of Ontario, IMS. C.U. 707. 
 
 ■' Mllcliell V. t'ity of L.xi.loii Kiiv Ins. Co. 12 (). |{., 7ilti. 
 
 1 * 
 
 4- ill! 
 
 ?! 
 

 lii 
 
 ill 
 
 404 
 
 INSURANCE LAW OF CANADA. 
 
 been a breach of the warranty ; and that the policy was conse- 
 quently \ )id and the underwriter not liable.' 
 
 278. Employee's guarantee contract— Renewal— Misstate- 
 ment — By a contract in writing nuide in 1890 the defejulants 
 agreed to guarantee the plaintiff against pecujiiary loss by reason 
 of fraud or dishonesty on the part of an employee during one j-ear 
 from the date of the contract, or during any year thereafter in 
 respect of which the defendant should consent to accept the 
 premium which was the consideration for the contract. The 
 defendants accepted the premium in respect of each of the three 
 following years and gave receipts entitled " renewal premiums " : 
 
 It was held, the contract was a contract of insurance made or 
 renewed after the commencement of the Ontario Insurance Cor- 
 porations Act, 1892, within the meaning of section 33. 
 
 And also, that upon the true construction of sub-section (2) the 
 contract could not be avoided by reason of misstatements in the 
 application therefor, because a stipulation on the face of a contract 
 providing for the avoidance thereof for such misstatements was 
 not, in stated terms, limited to cases in which such misstatement 
 was material to the contract.- 
 
 279. Concealment of other insurance and encumbrances.— 
 
 Where the application for a policy of insurance calls for a state- 
 ment of the encumbrances or other insurances on the property 
 sought to be insured, failure to disclose all such encumbrances or 
 other insurance amounts to a concealment which constitutes a 
 cause of nullity of the policy. ' 
 
 279a. Concealment of refusal of previous applications.— 
 
 In a proposal by M. to an assurance otlicc on his life, in answer to 
 the (juestion, "Has a proposal ever been made on your life at any 
 other office or offices ? If so, where ? Was it accepted at the ordin- 
 ary premium, or atan ini-reased premium, or declined ?"his answer 
 was: " Insured now in two offices for £10,000 at ordinary rates. 
 Tolicies effected last year.'" Tlie proposal was accepted, but the 
 office having subsequently ascertained that the life of M. had been 
 declined by several offices : — 
 
 » Barniml v. FnbiT(181W), I Q. U. :H(t. 
 
 '' Villiifi^e of London Wc'st v. liOiidoii (iuarantoe & Accident Company, 21! O. R., 
 520, and see remarks of Rose, J., in this case supni § 2tlS, 
 
 ' McKay v. The Glasgow & London Ins. Co. 32 L.C.J. 125, 1888. See also infra 
 S§ 282 and 21t;t. 
 
WARRANTIES, REPRESENTATIONS AND CONCEALMENT, ETC. 
 
 405 
 
 It waa heUl, there had been a material concealment, and that 
 the office was entitled to have the contract set aside.' 
 
 In the following case, where no question was asked, a dift'er- 
 ent ruling was given. In this case a party applied to one agent of 
 an insurance company and was refused the insurance, and after- 
 wards applied to another agent of the same company and secured 
 insurance through him in the ordinary mode and preceded by the 
 usual enquiries. The tact that such party did not mention that 
 he had before applied to another agent of the same company for 
 insurance and was refused was not the concealment of a material 
 fact rendering the insurance void.' 
 
 279b. Conoealment of previous loss by fire and of previous 
 refusal. — In a form of application for fire insurance the questions 
 
 were asked : " Have you ever had any property destroyed or dam- 
 aged by fire ? If so, when and where ? " Also : " Has this risk 
 been refused by any company, or has any company cancelled a 
 policy or receipt on it?" To both which questions the applicant 
 answered " Xo," and signed a memorandum at the foot of the 
 application form, whereby he covenanted and agreed with the 
 company that the foregoing was a just, true and full exposition of 
 all the tacts and circumstances in regard to the situation, condition, 
 value and risk of the property to be insured, and that it should be 
 held to form the basis of the liabilit}' of the company and form a 
 part and be a condition of the insurance contract. 
 
 As a matter of fact the insured had had other properties, but 
 unconnected with the property now in question, destroyed by fin;. 
 
 It was decided that the answer to the first of the above ques- 
 tions was immaterial to the risk. 
 
 And also, that the answer to the second question was clearly 
 a warranty, having reference as it had to the property to be in- 
 sured, and the only point for the jury's decision was as to its 
 truth.* 
 
 279c. Concealment of refusal on account of fires. — The 
 
 concealment by the insured of the fact that the risk had been re- 
 fused by another company in consequence of two fires having 
 
 ' London Assuranco v. Maiiscl, 11 Uh.D. ;163. 
 
 - GooiUviii V. Liuiciishii-e Fire & Lifi' Ins. Co. IS Ti.C.J. Q.B. 1, referred to 
 stipm g -Mi, See also mtprn § 2(17 and infra SS -7!H) and d'JOb. 
 :' Stott V. London & Lancashire Fire In.s. Co. 21 O.K. :tl2. 
 
 I; 
 
 m 
 
 III 
 
 J , 
 
 1 1 
 
Mi 
 
 406 
 
 INSURANCE LAW OF CANADA. 
 
 m 
 
 !!1, 
 
 occurred previously on the same premises under suspicious circum- 
 stances 's a material concealment and rcn<lors the contract void. 
 
 The holding in this case was that where an insurance com- 
 pany has refused to insure, hecause several times l)uildings similar 
 to the one sought to he insured and helonging to the same owner had 
 beenburnt, each time under the same circumstances, this fact must be 
 declared by the assured when he applies for a new insurance, as it 
 is of a nature to increase the risk, and concealment of the insured 
 on this point is a cause of nullity of the contract.' 
 
 279d- Concealment of danger from incendiarism, — A mere 
 threat to burn plaintiff's store, made during an election excitement 
 and several months prior to an insurance being effected, is not 
 such a threat, the omission to declare which at the time of effecting 
 the insurance would amount to a concealment of a material fact.- 
 
 In a recen'i Ontario case, where in the application the assured 
 was asked whether any incendiary danger to the property was 
 threatened or ajiprehended, and untruly answered " no", the policy 
 was held avoided. ' 
 
 Upon the same point of concealment in another action a tire 
 policy dated 21st May, 1879, was ettected on the ordinary contents 
 of a l)arn which was at the time of the insurance emiity, and on a 
 reaping and threshing machine. This barn was on the east half of 
 the lot, the plaintiff's homestead and home buildings being on the 
 west half, some distance across the road. 
 
 In the application for the insurance dated the l3th May, 187!', 
 plaintiti answered " no" to the question, •' Is there reason to fear 
 incendiarism or has any threat been made ?" On the same day the 
 plaintiti: had obtained another policy from defendants on his 
 dwelling house aud home buildings, the same question and answer 
 being containeil in his application therefor ; and the thresher and 
 reaper in question were then in the home buildings. A tire occur- 
 red on the 28th October, 1879. 
 
 At the trial it ajipeared that one M., the i)l;iintitf's hired man, 
 about the 8th May, had threatened to beat the iilaintitf, and the 
 latter, who was a nervous timid man, being alarmed had bad the 
 
 1 C. G. L. 24S.") 2487. MiiiOK^ue v. CJucIr'c Fire Assuranco Co., M. L. U. 1. S. C. 
 417 and 478 and S L. X. ^40 and :J77. 1SS.5. Si'o, however, Goodwin v. Lancasliire, 
 aupra S 2~'M. 
 
 - Kelly V. Hoeli. .Miu. Ins. Co. il L. C. .1., 298. 3 L. \. ti;} and see iiit'ra 
 
 3 Findley v. Fire Ins. Co. of N. A. 'Jo O. R. 'An. 
 
WARRANTIES, REPRESENTATIONS AND CONCEALMENT, ETC. 
 
 407 
 
 premises insured ; thiit he had sat up and watched tor a night and 
 that he heUeved the premises had heen set on lire. He denied 
 liavinir any reason for tear, except as to his liomo huildiuirs. At 
 rlie time of the tire the barn contained some grain and liay and 
 tlie threshing and reaping machine, for the loss of wliich this 
 action was brouglit. One of the conditions of the policy was, that 
 if the assured niisreitrosenteil or omitted to communicate any 
 circumstances material to be nnide known to the 'ompany, in 
 order to enable them to judge of the risk, the policy would be 
 avoided. 
 
 'I'lie court was of opinion that the plaintitt could not recover, 
 for the plaintitl: having admitted his own l)elief in the danger and 
 acted ujion it, his answer to the above question was untrue. 
 
 E'er Cameron, J. : — The question was equivalent to •* Have 
 you reason to fear, or do you fear incendiarism'.'"' and though the 
 bodily threat did not turnish valid grounds lor believing that 
 incendiarism was to be feareil from the [person threatening, yet, 
 since the insurance was ettected on account of such fear, there was 
 a clear misrepresentation in answering the question, and it made no 
 difference that the property to be covered l)y the policy was not 
 in I'.xistence at the time the insurance was effected. 
 
 Armour. J.,(/(S.s\: The word ••incendiarism" lommonly applies 
 to buildings oidy. ami should not be extended in rhix case to cover 
 personal property. The ([uestion shoubl be consirued strictly with 
 reference to some particular ground of tear, otherwise the answer 
 " no"' referring to the iirst part only, viz. : " Is there reason to fear 
 incendiarism"' would be in every instance untrue, for every in- 
 surance is effected because the assured fears the happening ut fire 
 by accident, neglect or design. And rlic evidence in tliis case 
 showed that there was no such reason as. o[)erating on the minds of 
 a majority of pruilent men. would cause them vo fear incendiarism, 
 and therefore the (piestion w:is ti'iily answered. The question was 
 also properly answered as to the property covereil by this policy, 
 tor the fear exteiukMl only to the home |iroperty, and as to the 
 property intemleil t» l)e covered l>y the policy l)iit not thei\ in 
 existence, such as the crops, as to which no fear could exist.' 
 
 Ill answer to a question put by one >'onipany in an apitlication 
 for insurance on a mill : " Have vou auv reason to believe vour 
 
 1 CiuuplH'll V. \'icli>ri;i Mat. Fire Ins. Co. iriQ.H. 111'. g.H.l). 
 
 vMl^ 
 
 |Li:^ 
 
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 it:. 
 
 ! 
 
 ■i ■ r 
 \ 
 
 A 
 
 

 
 I'.': ■ 
 
 m 
 
 
 $ 
 
 408 
 
 INSURANCE LAW OF CANADA. 
 
 property in in iliinsfor from incendiarism?'" And l»y auotlier : 
 *' Have you any reason to nnppose tliat your property is in dansfer 
 of incendiarism ?" the applicant B. replied to each in the negative. 
 It appeared that the mill had binwi burned some months jireviously, 
 and that the origin <»t the tire was unknown, and that threats had 
 been made to B. by one R., an intemperate man, who was accus- 
 tomed to indulge in threats to which no one [laid any attention to 
 burn down the mill. An anonymous letter had also been received 
 threatening incendiarism. Persons supjiosed to be tramps liad 
 been seen about the [iremises, and !>. had warned the watchman 
 to be careful, ami mentioned that he had received the anonymous 
 letter : — 
 
 It was held, reversing decree ot S[iragge, C, that the answern 
 were such a misrepresentation as avoided the policy.' 
 
 The question put by the company in another case was " Is 
 there any incendiary danger threatened or apprehended ?" which B. 
 answered in the negative. This was a misrepresentiition which 
 avoided the policy." 
 
 In a case where insured testified that, having made complaints 
 against a person who was convicted of a crime, he was threatened 
 by the father of the person so convicted that he would fix him, 
 the Supreme Court of New York held, that an exception to a 
 refusal to instruct that, if the insured believed when he applied 
 for the policy that there was danger of an incendiary burning of 
 his property, and did not disclose that fact in his written applica- 
 tion, he could not recover, was not well taken." 
 
 2S0. Concealment of planing machine, etc — Insurance was 
 ettected on a saw-mill, without disclosing the fact that the build- 
 ing contained a planing machine. This was held a material fact 
 which it was incumbent on the insured to disclose, and the con- 
 cealment of it rendered the insurance null and void.' 
 
 In an older case, however, it was said the failure of 
 assured to ilisclose the existence of a fulling mill under the same 
 roof as the buililings insured and destroyed by tire, is not a mate- 
 rial concealment or misrei»resentation, although it be proved th it. 
 
 1 Greet v. CitizciiH Ins. Co. refcrrerl to supra i 267, and do v. Koyal In 
 Gr. 121, 5 A.U. o!MI. but (see Kelly v. HocheliiKa Miit. Ins. Co. 2-1 L. C. J. 2Us. 
 » fireet v. .Meicantiie Ins. Co. .5 A. R. 5!H5. 
 5 Smith V. Homo Ins. Co. (1SS.S), 47 Hun. :tO. 
 ♦ Aitkin 4 The National Insurance Co., 1 L. N. 5.31, Q. B. 1878. 
 
WARRANTIES, REPRESENTATIONS AND CONCEALMENT, ETC. 
 
 409 
 
 had a disclosure been made, the jiremiuin ot" insurance would have 
 l)een inucli in excess of that charged, when tlie plaintirt's wit- 
 nesses concur in stating that the risk was not thereby increased.' 
 
 In anotlier case it was hehl there was concealment on the part 
 of the insured in not stating that a wing alleged to contain uier- 
 chandise, was also partially occupied as a kitchen, and such con- 
 cealment, although not fraudulent, voided the insurance." 
 
 281. Misrepresentations as to state of health. As we have 
 seen ' under the Civil Code of Lower Caiuida the declaration in the 
 policy of the age and comlitioii of health ot the person upon whose 
 lite the insurance is made, constitutes a warranty n\)on the correct- 
 ness of which the contract depends. Xevertheless, in the al)sence 
 (/f fraud, the warranty that the person is in good health is to be 
 construed liberally and not as meaning that he is tree from all 
 infirmity or disorder.' 
 
 The ([Uestion was recently decided in Quebec where a person 
 <lesiri)us of becoming a member of a mutual life assurance company 
 declared that he was in good health, while in fact he was suitering 
 from a serious disease likely to shorten his days ; the assurance was 
 declared null on account of such misre{)resentation.'' 
 
 281a. Misrepresentations as to state of health— Policy in 
 favor of creditor- Return of premiums.- An unconditional lite 
 policy of insurance was issued in favor ot a third ^larty, creditor of 
 the assured, "upon the representations, agreement and stii)ula- 
 tions " contained in the aiiplication for the policy signed by the 
 assured, one of which was that if any misrepresentation was made 
 l)y the applicant, or untrue answers given l)y him to the medical 
 examiner of the company, the premiums paid would become for- 
 feited and the policy be null and void. 
 
 Upon the death of the assured, the i)erson to whom the policy 
 was made payable sued the company, and at the trial 't was proved 
 that the answers given by the applicant as to his health were 
 untrue, the insurer's own medical attenchmt stating that insured's 
 was a life not insurable. 
 
 I Wilson V. Slate Fire Ins. Co., 7 L. C. J. l'2;1. 
 
 - BursiUou V. Royal Ins. Co., !."> L. C. R. 1. 
 
 " Supra § 2t)S. 
 
 * C. C. L. C. 2i5S8, Marsliall 772. Ellis (Stiaws» c 
 
 p. 20o 
 
 1 ;i 
 
 
 •■' Masson v. L'Asaoeiaiiun de Prevoyance Mutueile ilu Canada, 2U L. C. J. 101, 
 S. C. 1H84. 
 
 m 
 

 f- 
 
 i, ' 
 I ■ 
 
 no 
 
 INSURANCE LAW OF CANADA. 
 
 It was held tliiit tlie policy was tliorcbv made void, <(h initio, 
 and the iiisuror could invoke such nullity ay;ainst the porsoii in 
 whose favor the policy was made iiaynble. and was not oldiyod to 
 return any part of tho premiums paid. 
 
 Also that the statements constituting the misrepresentations 
 being referred to in express terms in the body of the policy, the 
 jirovisions of ss 27 and 28 R. S. C, c. 124, could not be relied on 
 to valichito the [lolicy, assuming such enactments to be intra rlres 
 of the Parliament (if ('aiuuhi. which point it was not necessary to 
 decide. 
 
 Al.^o that the indication by the assured of the person to whom 
 tho policy should be paid in ease of death, and the consent by the 
 company to pay such person, did not ett'ect novation ; Art. 1174. 
 0. C, and till' provisions contained in Art. 1180, C. C, are not 
 applicable in such a case. 
 
 It is too late to raise an objection tor tlie first time ow the 
 argument before tlu' Supreme Ct)urt that tlie legal representatives 
 of the assured wei'c not matle parties of the case.' 
 
 231b. IVIi'.^represt.ntations Policy in favor of third party. - 
 
 The ]ihiintitf ettected a policy id' insurance with the defendants on 
 the Hie of K. M. !*., which was under the seal of the defendants, 
 but the plaintiff was not made a jiarty to it. In it was a proviso 
 ''that if the declaration under the hand of the plaintitt delivered 
 at the defendant's ofHce as the basis ot' the insurance is not in every 
 resp et true, then the assurance shall be void." On proposing the 
 insurance the plaintili had answered in writing certain ([Uestions, 
 and at the toot he had signed as thi- [lerson proposing tlii' insur- 
 ance, a declaration. •* I dei'lare that the above particulars are tiulv 
 set forth. " 
 
 it was held, that proviso in policy (by ti'rms of which the 
 plaintiti was bound, having acct'|ite(l it) avoidid the insurance if 
 the particulars in thi' declaratimi were untrue in fact on a material 
 matter, although not untrue to the plaintififs knowledge.- 
 
 281c. IVIisstatement of date of birth and of disease.— 
 
 Ou an application I'oi- insurance in a mutual assessment insurance 
 isoeioty, the applicant declared ami warranted that it' in any ol' the 
 
 ^«.1l 
 
 ' Sniii'oini' Coiii'l of ("aiiiiilii, N'l'iiru'r v. Sun {.ilf Ins, {'».. 17 S (', li :tiU, re- 
 fori'i'il Id mi/irii ^ J(IS. 
 
 -' Miudiuiald v. I.iiw I'liion Fire & liilV Iiiw. t'o. \..l{. It l^, H. ;t2S i-fK'n-i'd to 
 
 sii/irii j! lid". 
 
I '"i'' 
 
 WARRANTIES, REPRESENTATIONS AND CONCEALMENT, ETC. 
 
 411 
 
 iinswors there slioiild be any untruth, evasion, or conoealmont of 
 tacts, any bond grunted on such apjtlication shouhl l)e null and void. 
 
 In an action a<>:aiti8t the comi»any on a bond so issued it was 
 shown that the insured had misstated the date of his birth, giving 
 the 19th, instead of the 2;?rd, of February, 18;?5, as such date ; 
 that he had given a slight attack of apoplexy as tlu' only disease 
 rith which he had been afflicted, and the ccmpany contended that 
 it was, in fact, a severe attack ; that he had stated that he was in 
 " perfect health " at the date of the application, which was claimed 
 to be untrue; that he had suppressed the fact of his being sultject 
 to severe bleeding at the nose : and that the attack of apoplexy, 
 which he had admitted had occurred live years before the a])plica- 
 tion, had in fact occurred within four years. 
 
 The trial Judge found tiiat the misstatement as to (., ic o|' 
 liirth was immaterial, as it could not have iiu-reased the nund)er of 
 years on which the premiums were calculated ; that the attai'k of 
 apoplexy was a slight, not a severe attack ; that tlu' applicant was 
 in "good'' if not "perfect" health when the application was 
 made ; that the bleeding at the nose to which the insured was 
 subject was iu)t a disease and not dangerous to his liealth ; hut 
 that the misstatement as to the time ot the occurrence of the 
 attack ot a|ioplexy was nuiterial, and on this last issue he found 
 for till' soi'icty, and on all the others for the i)lainti11. 
 
 'i'he court eit lutvo reversed this decision and gave judgment 
 for the plaintiff on all the issues, holding that as to the issue 
 I'ound by the trial judgt> for the society, there was a variance 
 between the plea and the ai»plication which preventcil the society 
 trom taking advantage of the misstati'ment. 
 
 On ap[)eal,the Supreme Court of Canada held, (iwynne and 
 l'alters(M). dJ.. dissenting, that the decision of the court cii li(iii(\ 
 •10 N". S. Rv\). :347, was right, and should be atHrmed.' 
 
 281d. Concealment of a disease. — The bond o|' nienilierslii|i 
 in an insurance society insuri'd the mendu'rs holding it •• iu con- 
 sideration ol statements made in tln' application herel'or, etc.," 
 anil in a declaration amiexcd to tlu' application the iusurcil agreed 
 that the bond should l)e void if the stati'niciits and answers to 
 ([Uestions in the aiii»lication were untrue. 
 
 to 
 
 ' Snpronie Coiul of t-'ai..i(la, .Mulinil l{olii.'l' Soc'y. of .N. S. v. Wi'listor, l(i S. V. II. 
 
 (IH, 
 
 I 
 
 i! 
 
412 
 
 INSURANCE LAW OF CANADA. 
 
 lii 
 
 Tlie application was hold a part ot" the contract for insurance 
 and incorporated with the hond. 
 
 The said declaration warranted the truth of the answers to 
 the questions and of the statements therein, and agreed that if any 
 of them were not true, full and complete, the bond should he null 
 and void. One of the questions to he answered was : " Have you 
 ever had any of the following diseases? Answer opposite each: 
 3'es or no.'' The names ot the diseases were given in per[»endicular 
 columns, and at the head of each column the applicant wrote " no,'" 
 placing under it and opposite the disease named nuirks like inverted 
 commas. On the trial of an action to recover the insurance on a 
 hond issued pursuant to this application, it was found that the 
 apitlicant ha<l had a disease opposite to which one of these marks 
 had been placed. 
 
 It was held, affirming judgment of court helow, that whetlior 
 the applicant intended this mark to mean " no " and thus deny 
 that he had had such disease, or intended it as an evasion of the 
 (piestioi), the bond was void for want of a true answer to the 
 question. 
 
 In this case it was argued that the Insuraiu-e Act, 11. S. C, 
 c. 124, aiijtlied to the defendant company, and that the benefit of 
 the application could not be claimed, as it was not contained in or 
 endorsed on the policy as recpiired l>y sectimis 27 and 28 of the 
 statute ; but the court <lid not consider it necessary to determine 
 the point.' 
 
 On the (piestion of disease, in the very recent case of tlu- 
 Canudian Lt.s. Co. v. D'lesphnre Pilot- it was held, eoniirming 
 the judgment of Mathieu, J., that in the absence of bad faith on 
 the part of the assured, the omission to mention a disease from 
 which be ha<l l)een sutlcring for a long time previously without 
 bis constitution l)eing affected thereby, eould not vitiate the con- 
 tract. 
 
 Under a recent New York decision; a concealment of tlie fact 
 that the insured is sick when ai)pru!ation is nnuh- for re-instate- 
 
 ' .Suprt'ino Court of Caiiadu, KilziMiidolpli v. Tlif Mat. lU'lief Society of Nova 
 Seotiii, 17 S. ('. U. :t;i;t, uml .sci" .jiid^mutit of (iwjiino, .1., ilt. p. itIO .See, liowovor, 
 Sinclair V Ciiii. Mm., 10 I'. C. U. I'lHi, 212: .Vmcrioan Ins. Co. v. I'icnl, !l IViiii. 
 rvJO; Mlicrty Mall .\hs. v, llonsaloiiic Co., II Cray ISo ; Mcholls v. Kayi'ttf Miit., 1 
 AlliMi (Mans.); I'Iki'iiIx Co. v. Uxliliii, IJi) C S. ISt; .Millar v. 1'iia.Miix Miit. Co,, 
 10" N. V. Iill2, ;i01, .See also prcceilinn piiratfraph. 
 
 •ill. J. iU^i). M. oJl, 
 
WARRANTIES, REPRESENTATIONS AND CONCEALMENT, ETC. 
 
 413 
 
 K 
 
 ID 
 
 i ■■ f. 
 
 IM 
 
 ':{ , 
 
 
 
 ' •.' i' 
 
 or 
 
 the 
 lie 
 
 VtT, 
 
 meiit will avoid whatever may have heeii done towards re-iiistate- 
 meiit.' 
 
 An iiisnraiioe case was receiitl}- decided in Quebec on this ques- 
 tion of health. An action had been taken out hy the widow of the 
 late Fahien Gauthier for a thousand dollars ajjainst the Metro- 
 l>olitan Life Insurance Company, the amount of a policy upon the 
 life of her husband. The company contended that it could not 
 pay the policy on tlu^ grountls that Gautliior had not given full 
 information regarding; his physical condition when he was insured. 
 Evidence was given to the eflect tliat when applying for the policy 
 deceased had declared he was in good health, whereas he had been 
 ill for four years ; that he had been spitting blood, and tliat, in 
 brief, he was suffering from consumiition when he got the policy, 
 and that he had died from that comiilaint. Moreover, evidence 
 was adduced that he had been unable to work for many months, 
 and that he had received aid from tVic Catholic Order of Foresters. 
 The (V)urt, under these circumstanc(!s, said that there was nothing 
 to be iloiie but to dismiss the action taken against the ctjmpaii}- by 
 the widow. - 
 
 281e. Misstatement as to age and health. — Where an appli- 
 cant for lite insurance in answer to a printed <piestion misstates his 
 age or declares that his healtli is good, wliereas it is bad, or fails to 
 disclose the names of his medical attendants, though he had them, 
 and answers as if he had none, and u[)on such answers, which are 
 made to form a part of the contract, a policy is issued by the in- 
 surer, such policy is void. Ami it was said in this case that gen- 
 erally lidse statements made by the applicant for insurance abso- 
 lutely voiil the policy.' This is not the law to-day.'* 
 
 281f. Intemperate habits. — A. applied to an insurance otfice 
 to eilect a [lolii'y on his life, lie received a printed t'orm t>f pro 
 posal containing nuestions. Among these was the hdlowing : — 
 "Question?. ((() Are you temperat*; in your habits ? (h) Anil have 
 you always lu'cn strictly so?" A. answered : i'l.) "temperate;" 
 (^^)''yes." Subjoined to the i>rinted (piestions was a declaration 
 which A. signed to the etli^ct that the I'oregoing statements were 
 
 I Miirsliiill V. Wimicn's Mill . Ins. ,t Ace. Co. nf Aiin'riciMlSllll), .'iS N V . Super. 
 Ct. 4tttl. 
 
 ''CuMSDU V. Molropolitftii Life Ins. Co., :i April, IS1>7 not yet ri'portod, 
 » llartlftiui V. IiitfniiUioniil Life .Vs.sci-, Soc. S I, .CI. Mi. 
 * !See .sK/H'd ^ litlT ami s('([, 
 
 f ■ J 
 
414 
 
 INSURANCE LAW OF CANADA. 
 
 I 
 
 ilili. . 
 
 true, and that the assured agreed that this deohiratioii shoukl he 
 tlie hasis of the contract, and that if any untrue averment, etc., 
 was made the policy was to he ahsohitely void, a!id all the moneys 
 received as premium forfeited. The policy recited the ahove de- 
 claration as the hasis of the contract. After A. 's decease the in- 
 surance company refused payment of the policy on the ground that 
 the ahove-mentioned answer was false in fact. 
 
 In action on the policy it was held, reversing the decision of 
 the court helow, that the declaration of A. taken in connection 
 with the policy constituted an express warranty that the answer to 
 ijuestion 7 was true in fact, and as the evidence clearly [)roved that 
 A."ri averment as to his temperance was untrue, the policy was ab- 
 solutely null and void. 
 
 Life Associatio)) of Scallidid v. Jjoster (11 Court Sess. Cas. '■^ 
 series, 351) distinguished ; Hakldson v. Xalio)ial Loan Aasociali'Hi 
 Co. 7 (Court Sess. Cas. 2 series, 407) not approved of.' 
 
 28lK. Intemperate habits -Assignment of policy.- An ap- 
 plication for life insurance signed hy the applicant contained in 
 addition to the question and answer, viz.: "Are your hahits sober 
 and temperate? A. Yes," an agreement that, should the appli- 
 cant become as to hahits so far ditterent from tlie condition in 
 whieh he was then represented to he, as to increase the risk on the 
 the life insured, the policy should l)ecome null and void. The 
 [lolicy stated that " if any of the declarations or statements made 
 in the application of this policy uiion the face of which this policy 
 is issued shall be found in any respect untrue, in such case the 
 policy shall be null and void " 
 
 On an action on the policy by an assignee, it was proved that 
 the insured became intemperate during the year preceding his 
 death, V)ut medical opinion was divided as to whether his intem- 
 perate habits materially increased the risk. 
 
 It was held on the merits per Ritchie, O.J., Strong, J., (Four- 
 nier and Jlenry, J, J., contra) that there was suthcient evidence of a 
 change of hahits which in its nature ii\creased the risk on the life 
 insured to avoid the contract. 
 
 The appellant's interest in tlie policy was as an assignee of 
 Dame M.II.B., the wife of one Charles L., to whom the insured 
 had transferred his interest in the policy on the 27th October, 187(5. 
 
 ' Tboinpaoii v. Weenis, I) App. Van, 071. 
 
> m 
 
 WARKANTIES, REPRESENTATIONS AND CONCEALMENT, ETC. 
 
 415 
 
 And, por Strong, Tasfhoreau and Gwynne, J.J., that the ap- 
 pellant had no Lcus standi, there being no evidence that M.H.B. 
 had been authorized by her husband to accept or transfer said 
 policy." 
 
 282. Concealment and misrepresentation of encumbrances 
 and title. — In an action t'oi- §1,000 insurance on house, turni- 
 ture, etc., the plea was that by his application, which formed 
 the basis of the insurance, piaintitt had falsely declared that there 
 was no encumbrance on the property, whereas there was a hyi»()- 
 thec exceeding §107. In the application the 12th questfon was: 
 " What encumbrance, if any, is now on said property ?" Answer : 
 " Not any." Phiintifl, examined as a witness, admitted that the 
 the last §100 of the purchase money with interest was only paid 
 on the 26th of August, 1878, the tire having taken jilace on tin' 
 3rd January, 1878. He subsequently sold the land for §232. 
 
 It was held, dismissing the plea, that as mortgage did not afh'ct 
 the risk, and as there was no evidence of bad faith on the part ot 
 plaintitl, that he was entitled to recover. - 
 
 The failure to disclose all existing mortgages upon the pro- 
 perty insured, in answer to a specific question upon the subject, 
 even in the absence of an express condition in the poli;'y, is cause 
 of nullity. 
 
 In rhe [irescrihed manner, tliere was endorsed on plaintiff's 
 policy an addition to the tirst statutory (!ondition. a condilion pro- 
 viding that any fraudulent misrepresentation in the ai)plicatt(»n, 
 or anv false or incorrect statement reiiresentiiiir the title or owner- 
 ship of tlie applicant, or the concealment of any mortgage or execu- 
 tioti or any encumbrance on the property or on the land on which 
 it was situate, should avoid the policy mdess the directors in 
 their diseretion sl-ould see tit to waive the defect. 
 
 In his application the plaintiif stated that tlie land on whicii 
 the building proposed to be insured was situated was encumbered 
 l)y a mortgage lor §1,500, but omitted to disclose that it was also 
 charged, together witli other property, with a small annuity in 
 favour of his father. The omission was not exi>Iained, but it was 
 not attributed tu any fraiululent intent. The dctendants pleailed 
 
 I Suprt'iiit^ Ct , of ("iUiiuiii, llovLM- V. 'I'lio I'lici'iiix Mill . I.il'i' liis. t'u. 1 1 S.C, K. "'.ill. 
 
 '•" Diirliiiriiic V. 'I'lic MuUml l'"iit' Iri^^. Co. of the Counties of I. iiviil, C'hamlily iiiul 
 .Itvc(iucsniilii'r, 2 l-.N. ll."),.S.('. ISTII. 
 
 :' Miu'kay v. (iliingow & Loiidoii Ins. Co. .M.I,,U. I, S.C. llil, see supni ^ L'7i) ;iiul 
 liit'rii i'lm. 
 
 .,.! i ! 
 
416 
 
 INSURANCE LAW OF CANADA. 
 
 .ii:' 
 
 mi 
 
 that the non-dieclosure of that cliarge avoided the policy under the 
 first statutory condition, or the above addition tliereto. The jury 
 found that the existence of the annuity was not material to be 
 made known to the defendants : — 
 
 It was held, affirming judgment of the Q. B. D. ( 14 O. R. 506) : 
 (1) That the non-disclosure of the anmiity was the concealment of 
 an encumbrance within tlie meaning of tlie added condition. (2) 
 Tliat tlie added condition was not a just and reasonable one, 
 because it was not limited to such facts or matter as were material 
 to be mjwle known to the company. (3) That the Divisional Court 
 might determine, whether the condition was a just and reasonable 
 one, and that it was not necessary that it should first have been 
 raised at the trial.' 
 
 Semble, the first statutory condition applies to matters of title 
 or encumbrances, or relating to the " moral " as well as the "phy 
 sical " risk, where the policy is based upon an application in which 
 the insured is interrogated as to such matters.- 
 
 The plaintiff and his brotlier. being joint owner of land which 
 their father had conveyed to tliem, subject to a mortgage to C, 
 gave a mortgage to the father to secure the balance of ]>urchase 
 money, the father covenanting to pay C.'s mortgage. Under an 
 agreement with his father and brother, tlie plaintiff, who was a 
 carpenter, at his own expense built a dwelling-house for his own 
 use, on a quarter of an acre of tlie land, the agreement Vicing that, 
 if the brothers should not be able to pay for the land, the ]»liiintiff 
 should have the house as his own. The house was ]»laccd on blocks 
 of wood, and was held by its own weight on them. 
 
 The plaintiff, in his ai»plication for insurance on the bouse and 
 contents, in answer to the ([uestion — "Title, held in fee. or how ? " 
 answered, " In fee," and to the (juestion — " Fncnnibcrcd or not? 
 If yes, to what amount — how mucli land does incumbrance cover, 
 and for what purpose erected ? "' He answered. •• None." ]hit he 
 stated to the agent that there was on the land a mortgage, but 
 nothing against the house, which he held in fee unincumbered. 
 There was a condition on the policy that the incumbrance should 
 be disclosed, and that the failure to do so would avoid the policy. 
 
 I R<Ml(lick V. .SiiiKt'cn Mutual Fire Ins. Co., I.t A. H 'MWi. rcfi-rred to siijmi tstj 
 247, 2W &. 2.")S luid hifnt S 2S.')ii. 
 
 ■^ Klein V. The I'nion Fire In.s. Co.. H O. K. 231, p. (til, approved and distin- 
 guished. lb. See Ottawa AKricultural Ins. Co. v. Slieridan. 5 .S, C. H. 157, p. 1*38. 
 
SSKxsv-*rjn-f-a-Jis 
 
 
 WARRANTIES, REI'RESEXTATIONS AND CONCEALMENT, ETC. 
 
 417 
 
 The verdict was for tlio plaintirt': — 
 
 It was hold, (Armour, ,1., diss.), that tlio house was not insured 
 as a chattel, but as realty ; and that the failure to disclose the 
 incumbrance was fatal. Per Cameron, J., that the house was a 
 fixture, and subject to the niortirage. The condition was, that in 
 case of any misrepresentation or omission to communicate any 
 material circumstance, the insurance should be of no force "in 
 icspect to the property in regard to which the misrepresentation 
 or omission is nuide." Per Cameron, J. : The polic\' was avoided 
 only as to the insurance on the house. The directors passed a 
 resolution to pay the loss, in ignorance of the fact that tiie incum- 
 lirance existed, and made an assessment to meet it, but on discov- 
 ery rescinded this resolution : — Also, that the defendants had not 
 by the resolution waived their right to set up the defence. Per 
 Armour, J. : The house was a chattel, and there was nothing in 
 the api>lication to stop the plaintitf from asserting that it was not 
 insured as part of the land.' 
 
 The plaintiff effected insurance on buildings and chattels there- 
 in, specific amounts being placed on each. By the application in 
 answer to (piestions to that effect, the iilaintiff stated that the 
 premises were held in fee simple and were iniencumbered ; atid at 
 the end thereof there was a provision that where property was 
 heavih' encumbered, or the value of buildings as comi)ared with the 
 amount insured on ordinary contents was small, the nianagor, etc., 
 was authorized to insert the two-third's clause. The application was 
 nuule part of the policy, which contained the statement that the pre- 
 mises were represented in the application as lieing hehl in fee simple 
 and unencumbered. It was also so stated in the proofs of loss. 
 
 By the first statutory condition, if the insured misrepresented 
 or omitted to communicate any circumstance material to be made 
 known to the company to eiud>le them to judge of the risk, the 
 insurance should be of no t'oree as respei-ts the pro|HM'ty misrepre- 
 sented, etc. The property herein had been conveyed to the [ilain- 
 tiff'by his father in consideration of luitural love aiul affection, but 
 subject to a charge to sujiport the father and a brother and to 
 other charges, and on default the plaintiff was to stand seizi'd to 
 the use of the father of the land, which should immediati'ly revest 
 in him as before : — 
 
 I I'liilliiis V, liniiid Hivor Kiiriiiurs' Mutiiiil !'"iic Ins Co., Id Q. li. lUt.— Q. H. I). 
 
 27 
 
i 
 
 i 
 
 
 !£'■;!< 
 
 !!ii; 
 
 II 
 
 418 
 
 INSURANCE LAW OF CANADA. 
 
 It was held tliat under first statutory condition, in order to 
 cause the niisrepreseiitation as to the property to avoid the poHcy, 
 it must he material, which was a question for the jury to decide ; 
 and that the misrepresentation only applied to the Iniilding and 
 not to the chattels : — 
 
 And, also, that the fifteenth statutory condition which pro- 
 vides that " all ihuids or false swearing in relation to any of the 
 above particulars, shall vitiate the claim," did not apply to the 
 statements as to title or encumbrances, for it referred to the par- 
 ticulars contained in the thirteenth statutory condition, items (a) 
 to (e), which had no relation whatever to such statements. 
 
 The Judge at the trial having entered a verdict for the defen- 
 dants, on the ground that the misrepresentation itself avoided the 
 policy, a new trial was directed.' 
 
 A fire policy contained condition, in addition to statutory ones, 
 to the eflect that if the property were alienated, or any transfer or 
 change of title occurred, or if it were cncundjcred by mortgage, 
 without the consent of the company, ot if the [iro[)erty should 
 be levied upon under process of law, the policy should cease. 
 
 In answer to the ([uestion whether the i>ro[)erty was mort- 
 gaged, the assured answered " §5,000 to ¥. L. & S. Co." There 
 were at the time, in fact, two mortgages to that company, on which 
 $6,160 were due. After the policy a mortgage was given to secure 
 endorsements and was discharged, and another was given by the 
 plaintifi' to his partners who retired from the firm, but the com- 
 pany was not a[)prised of either. 
 
 The jury found that the representations as to encumbrances 
 were false, i)ut not made fraudulently, and a verdict was entered for 
 tiie defendants : — 
 
 It was held, that representation as to encumbrances was a 
 violation of the condition, and tliat the verdict was right. I'er 
 llagarty, C. J : Though that part ofthe condition as to levying 
 might !)e unreasonable (5 A. R. 605), the remainder wsts not, and 
 the condition was divisible. - 
 
 In answer to tlie questions, '-1. Are the premises occupied by 
 owner or tenant ? 2. If l)y tenant, give name of owner," a i)artv 
 
 seeki 
 
 ntj to e 
 
 fi'ect 
 
 un uisiirance against hre answered : "• 1. Tenant, 
 
 ' liorinn v. London Mutual fiif Ins. Co., HI I). U. 2:t(;, — (.', 
 
 I), ivfei'i'i'd lo 
 
 Kiiprii S : 
 
 C, 11 O. K. 
 
 p. i)SO. 
 
 Will.y V. Slaiuiiifd Ins. Co., :! O. H. 11.".. (J. H. I), 
 
WARKANTIES, REPRESENTATIONS AND CONCEALMENT, ETC. 
 
 419 
 
 l1 
 
 
 1 
 
 
 ;| 
 
 
 
 
 as l>oanling house. 2. Apiilicaiit." And another question was : "It 
 the applicant is the owner of tlie said huihling — state the vahie of 
 the huihling and land, and he answered $600. In fact, tlie applicant 
 did not own the land, having a lease of it which had only a short 
 time to run, witli the right to remove the huihling, the suhject of 
 insurance : — 
 
 It was held, this was such a misrepresentation of the interest 
 of the applicant as rendered the policy void under the first of the 
 statutory conditions in the i>olicy.' 
 
 In another case decided hy the Supreme Court of Canada, 
 hy a contract in writing M. agreed to cut and store a certain 
 (luantity and descriiition of ice, the said ice houses and implements 
 to he the property of 1'., who after the completion of the contract 
 was to convey same to M. : the ice was to he delivered hy M. on 
 hoard vi'ssels to he sent hy 1\ (hiring certain months ; 1'. was to 
 he liahh' to accept and pay for only good merchantahle ice deliv- 
 i'ved and stored as agreed. The proi)crty on which the huildings 
 !'or storing said ice were situate was leased to P. hy the owner, 
 the lease containing a covenant hy the owner to grant a renewal 
 to M. A l)ill of sale was made hy M. to a third party of the 
 hnildings on saiil laml. M. cttected insurance on the whole stock 
 of ice stored, and in his api>lication, to the ({uestion, " Does the 
 property to he insured helong exclusively to a[iplicant or is it 
 held intrust or on cdmmis.-ion, or as mortgagee ';■ " he answcreil, 
 " Yes, to applicant." The application I'ontained a declaration 
 that the same was a just, full and true exposition of all the facts 
 and circumstances in regard to the condition of the property so far 
 as known to the applicant and so far as material to the risk, and 
 it was to form the hasis ot tlu' liahility of tin- company. 
 
 The property insurcil was destroyed hy tire, and [layment (d 
 the insurance was refusi'd on the ground that the pi'opi'rty he- 
 longed to v. and not to M. In an action on the policy, the de- 
 t'eiidants endeavored to pruve that other insurance on the same 
 property had heen ett'cited ly T.. and set up a condition in the 
 policy that in such case the coni[)any should only he lial»le to pay 
 its ratahle proportion of the loss. This condition was not pleaded, 
 and the policies to 1'. were not produced, nor the terms of his in- 
 surance [M'ovi'il. Kvideuce was given, suhject to ohjection as to 
 
 ' Compton V. Muivivntile Ins. Co., li" Cliy. ;!:U. Uliy. D., relVneil tosiijini i KKI. 
 
 !i 
 
r' 
 
 
 
 
 ^fr 
 
 :fi 
 
 Hi 
 
 
 420 
 
 INSURANCE LAW OF CANADA. 
 
 its luliiiissibility, that P. had effected iii.suraiK'e to cover advances 
 made to M. on the ice, and had been paid his lose. The phiintiii 
 nl)tained a verdict tor the full amount of liis policy, which was 
 atfirmed l)y the Supreme Court of New Brunswick in bane. 
 
 It was held, affirming decision of the court below, that the 
 whole property in the ice insured was in M. ; that the clause in 
 the agreement stating that the ice house and implements were to 
 be the property of P. meant that the buildings and implements 
 (inly were to pass to P., as he was to convey the property vested 
 in him by the agreement to M. on completion of the contract, and 
 could not so eonvey the ice which M. was to deliver on board ves- 
 sels, which he could not do unless it was his property. 
 
 And, further, that the declaration in the application did not 
 make M. pledge himself to the truth of the statements therein 
 absolutely, but only so far as known to him and as material to the 
 risk, and (questions of materiality and knowledge were for the 
 jury, who found them in favor of M. 
 
 And, also. Strong, J., dissenting, that the declaration was 
 not a warranty of the truth of the statements, but a mere collateral 
 representation. 
 
 Per Strong, J. : It was a warranty, but as it was oontined to 
 matters within the knowledge of M. and material to the risk, the 
 result was practically the same. 
 
 And, as to the further insurance, that the condition .should 
 have been pleaded, but if available without plea it was not proved ; 
 what evidenee was given should not have been received. 
 
 Per Strong, J. : It was not shown that P.'s insurance was on 
 the ice insured by M., who was not bound to deliver any specific 
 ice under the contract. 
 
 Per GwyiHic, J. : The damages should be reduced by the 
 amount received.' 
 
 In another case the appellants issued to respondents, in 
 consideration of $190, a policy of insurance to the amount of $3,000, 
 as follows, viz. : $1,000 on their building, and $2,000 on the 
 stock. In the respondent's application, which had been signed in 
 blank and delivered to the person through whose instrumentality 
 the policy was efiected, it was stated that there were no encum- 
 brances on the property, although there were several mortgages. 
 
 S •J.^u 
 
 North British &Merc. Ins. Co. v. McLennan, 21 S. C.R. 288. referred to suijra 
 
WARRANTIES, REPRESENTATIONS AND CONCEALMENT, ETC. 
 
 421 
 
 '^ 
 
 1 
 
 " ) '■" 
 
 It was also proved that after the issuing of tlie policy the rospon- 
 (loiits ettectetl a further encuraV>raiice on the land, and did not 
 notify defendants. 
 
 The policy was made suhject to 36 Vic. c. 44 (0.). The pro- 
 viso (since repealed hy 39 Vic. c. 7) to s. 3*5 declared : •' That the 
 concealment of any encujnbrances on the insured property or on 
 the land on which it may be situate shall render the policy void, 
 and no claim for loss shall he recoverable thereunder, unless the 
 board of directors shall see lit in their discretion to waive the 
 defect." One of the con<litiona of the policy provided that the 
 jiolicy should be made void l)y the omission to make known any 
 fact material to the risk 
 
 On an action u[>on the policy, the Court of Common Pleas 
 refused to set aside the verdict in favour of the appellants, but on 
 appeal to the Court of Error and Appeal for Ontario it was held 
 the policy was divisible and that respondents were entitled to re- 
 cover the insurance on the stock. 
 
 The Supreme Court said that the contract on the l)uilding and 
 on the stock was entire and imlivisible, and that the misrepre- 
 sentation as to encumbrances, by the conditions of the policy, as 
 well as by 36 Vic, c. 44 (0.), s. 36, rendered the policy wholly 
 void.' 
 
 282a. Indivisibility and divisibility of insurance. — Insur- 
 ance is at times divisible and at times indivisible.- The objects 
 insured, being distinct and in different situations, make as many 
 insurances as subjects.^ Reticence as to one by the assured may 
 not be fatal to the whole policy.' 
 
 Avocat General Reverchon made a strong argument for indi- 
 visibility in a case where a policy was issued covering ditterent sub- 
 jects for different sums, and the insured had been guilty of fraud, 
 leading to insurance, as to one subject. Yet, the original court 
 held the policy in this case to involve two contracts, and the Cour 
 de Cassation said it could not interfere in such case. The editors 
 seem to question this ruling."' 
 
 ' Supreme Court of Canada, The Gore District Mutual Fin- Ins Co. v. Sauio, 
 2S.C. R. 411. Hramwell, B., in Hains v. Vennbles, L. H 7 Ex. -JM), was ap- 
 proved, and in Xew Hrunswick the same lias been held. See 2 .S. C. K. lliU : .see also 
 i)i/ra S 2S2a. 
 
 ■•' See also preceding paragraph. ■' .lournal du I'lilais, A.l). ls77, p 1SS.5. 
 
 ^ lb. ■■ lb. 
 
 
 I i 
 
 ) ! 
 
p 
 
 ^ 
 
 w 
 
 422 
 
 INSURANCE LAW uF CANADA. 
 
 I TTl 1 : 
 
 Where a man iiiHured £1,000 on hi-* liouso and £500 on h\n 
 furiiituro in that house, tlie obligation ot" the insurer:- might he in- 
 divisilde or divisible, according to einuuistancos. It" the house be 
 described as covered with slates, whereas it was covered with 
 sliingles, and it burned, the insurers need not pay for it, nor need 
 they for tlie furniture burned with it, under first clause.' 
 
 In another case buildings were insured on two lots, (jne lot 
 was mortgaged. The application reijuired all mortgages to be 
 stated. The insurance company's agent seems to have written tlie 
 application. He was held the applicant's agent, for so the applica- 
 tion itself ordered. The insurance wa^ vitiated totally, the 
 mortgage not being stated. - 
 
 Some policies contain a clause as to descri[)tion of interest, 
 that if the interest is misdescribed in the application, the policy 
 shall he void ; also another clause as to claim sworn to after the 
 fire, that if false or fraudulent in any particular the [lolicy shall be 
 void. Judge Mackay discusses the ettect in a case whore by one 
 policy many different subjects are insure<l, as house, furniture in it, 
 movables elsewhere, value stati'd, and a rate, say, of one per cent, 
 on all, and the house not belonging to the insured. Is his whole 
 policy null? Semhle, it ought not to bo. Can it be said that the 
 risk is greater of a house not ])olonging to assured? It ought to 
 be held that the policy did not have this effect. Then, suppose 
 the same case, but all to belong to the assured, ami after the 
 nre the claim to contain a fraudulent statement of some of the 
 loss (e.i/., some subject alleged lost that was not lost or values of 
 some of the movables sworn to at doulilo their value) ought the 
 whole policy to be avoided? It would seem that it ought if it 
 contain a clause to that eftect. Again, in a case the same as the 
 last, with a clause reading : " If coal oilor be nzine bo used in the 
 house insured this policy to be void."' Ought the total judicy to bo 
 avoided if coal oil be used? In France they lean against divisi- 
 bility. But, if a house is described as covered with slate or built 
 of brick, when one or the other is not the case, the policy is null 
 even as to movables in it, whore the description is material.' 
 
 In some of the United States it is held that where a policy of 
 insurance covers diflereut kinds of property the contract is entire, 
 
 ' Agnel, p. (U, Arret of 1851 
 -Bleakley V. Xiagivra 
 
 Dist. Mut. Ins. Co., 5 Bt'iinettV Fire Ins. Ca.st>, 277. 
 
WAURAXTIES. UKI'KESESTATlitXS AXD CONCEALMENT, ETC. 
 
 42H 
 
 iiltli(iii<j;li rlio valuation and amounts ot' ijj.surant'c aro severally aji- 
 plied to the ditterent classt's of jn'operty and that a breach of the 
 warranty as to any portion of the suhject of insuranee vitiates a 
 policy as a whole, especially when tlie consideration is entire. 
 But that is not the doctrine in New York.' 
 
 The misrepresentations as to encumhrances upon realty in tlio 
 application tor insurance will not avoid tlie policy, so tar as it re- 
 lates to the p.Tsoiial pro]ierty insured therein. This was the 
 holdintj of the Missouri Appellate Court.'- 
 
 This rule has l)oen qualilied, however, in an Alabama case as 
 follows: When a policy of insurance covers a building and [M-rsonal 
 property included in it, or so attacheil that its loss would be the 
 natural conse([uence of the destruction of the building, as a dwell- 
 ing house and furniture, or engine house ami fixtures, a false war- 
 ranty as to the building avoids the whole policy.' 
 
 283. English views upon concealment— Concealment by 
 broker Misrepresentation innocently made — There has been 
 
 before the English cotuts a case in which insurers of a marine risk 
 had oftected reinsurance through their broker and before the nego- 
 tiation was completed this broker had become informed of a 
 disaster to the vessel insured, which intbrmation was not commu- 
 nicated by him to his principal and was withheld from the re- 
 insurers. The latter, when action was broui^ht ai-'ainst them, 
 placed their defence upon the avoidance of the [tolicy by reason of 
 this concealment of material facts. 
 
 There was a full discussion in the different courts before whom 
 the case came and it is valuable as a recent exposition of the law 
 upon the subject of concealment as well as its bearing upon agency 
 in the procurement of insurance. 
 
 In the English Court of Appeals, Lord Esher, M. R., in one 
 part of his opinion saiil : '"In order to determine whether any true 
 [irincipal of insurance law will make the defendant liable in the 
 present case, we must see what circumstances have been held to 
 have that etiect. Then we shall see whether any of those prin- 
 ciples are ajiplicable to the circumstances of the present case. 
 
 Sir Joseph Arnould says in his work on marine insurance (5th 
 ed. 514) that the principle is now firmly established that the mis- 
 
 ■ 'i! 
 
 ' Smith V. Hoiiip Ins. Co. (IHSS) 17 Hun. :H(I, 
 - Cr<).>k V. PliM'ui.v Ins. Co. (lS!tl)> :W Mo . Apu. oS^. 
 Wostcni Ass, Co. v. StoddiirtdSHDt SS Ala. liflti. 
 
 1i 
 
 ni 
 
% 
 
 424 
 
 INSURANCE LAW OF CANADA. 
 
 representation tVdin mistaki", ignorance, or accident, of any 
 material tact, however innocently made, will avoid the policy quite 
 as much an in cases wiiere such misrepresentation arises from a 
 wilful intention to deceive : and in another place (54o] "• Conceal- 
 ment, in the law of insurance, is the suppression of a material fact, 
 within the knowledge of one of the parties which the other has 
 not the means of knowing or is not presumed to know. Whether 
 such suppression of the truth arise from tlie fraud ot the assured 
 (that is from a wilful intention to deceive for his own henetit), or 
 mei'ely from mistake, negligence, or accident, the consequences 
 will he the same.'" 
 
 The sul)stantial proof of these propositions is not disputed hv 
 any one. They are a statement of the circumstances whieh will 
 prevent the enibrcement of the contract, hut they do not contain 
 the principle wherehy such circumstances produce such un eftect. 
 As to this. Sir .Toseiih Arnould says : "The doctrine of the English 
 courts is that in the case su[)posed, although no i)retext exist for 
 anvthiu"' like actual fraud, vet the polii-v is to he considered void 
 on the ground of construetive or legal fraud." 
 
 This is directly in contradiction of what has l)ei'n said in the 
 former part of this judgment. Duer, however, as is well known, 
 does not adoi^t this [trin('i[ile hut holds that it is a part of the con- 
 tract that full disclosure shall he made, as well as every represen- 
 tation shall he aceurate. But, if this he cdi-rect, the contract 
 shoidd never he set aside or treated as void on the ground of 
 cojicealment ; the contract should stand and i>e treated as hroken 
 hy the assured. This view would raisi' new I'omplications which 
 have never yet heen urged. 
 
 Phillips, who is ronsideri'd the more accurate guide, thus 
 
 treats the matter of prineiple 
 
 The ett'ect of a misrepresenta- 
 
 tion or concealment in discharging the underwriters does not seem 
 to he merely on the ground of fraud, as has heen usually laid 
 down hy writei's on iiistirance. hut also on the ground of a con- 
 dition imitlit'tl l»y the fact of entering into the contract that there 
 is no misrepresentation or concealment." Duer ci'lticizes the 
 phraseology of the hooks ill ]iutting the elicct of a misrepresenta- 
 tion or eonct'almeiit upon the contract entirely upon the ground <if 
 fraud. .Vriiouhl adheres to this a[iplication of that term for 
 
 I IMiillljis Clnl ol.i :is7, tap. \ n S 1 par. oiiT 
 
WARRANTIES, REPRESENTATIONS AND CONCEALMENT, ETC. 42o 
 
 tlio sake of oonsisteiu'v with till' goiionvl logal doctnuL' tliat wluit 
 passes between the parties preHmiiiary to a contract is not part of 
 it, and shonld not be inqiortc-d into it. And since a reiiresentatioii 
 through mistake or inadvertence has the same ettect in referenie to 
 tlie underwriter, as an intentional and literally fraudulent misre- 
 presentation ov concealment, namely, it induces him to enter into a 
 contract which he would have otherwise declined or to take a less 
 premium than he would otherwise have demanded, he deemed it 
 to be excusal)le to apply the term " fraud'' and thus bring the 
 doctrine on this subject noiniiudly within the acknowledged general 
 {u-inciple applicable to other contracts. 
 
 Jjut T cannot think that this anomalous use of the term is 
 justitiable on this ground, since ambiguous phraseology is i\ot to 
 be toU'rateil in any science, least of all in that of law, where it can 
 [lossibly be avoided, as it nuiy easily I)e in this ease, l)y stating the 
 [tractical doctrine in direct terms, namely, that it is an implied 
 condition of the contract ot insurance that it is free from misrepre- 
 sentation or concealment, whether fraudulent or through mistake. 
 He says lower down : " The forfeiture of tlie insurance by misre- 
 presentaticni oi' concealment is a forfeiture by a breach of the con- 
 dition ot the ('(Mitract. So it seems to have iiccn considered by 
 Chancellor Kent." This seems to me to l)e tin' true doctrine. The 
 freedom from misrepresentation or concealnu'nt is a condition 
 precedent to the right of the assured to insist on the performance 
 of the contract, so that on a iailure of the performance of the 
 condition the assured cannot enforce the contract. '"' 
 
 Lindlev. L. .F., and Lopes. L. .F., sitting with Lonl Ksher, M. R., 
 in the Knglish Court of Aitjieals, sustaineil the appeal holding that 
 the concealment ot the material facts within his knowledge by the 
 broker, under the I'ircumstances prevented the insurance iioli(y 
 ever attaching. The Master of the Rolls placd hi> decision upon 
 the ground that this agent to elli'ct the insurance was not an agent 
 as in the cases he reviewed, who was umler any legal obligation to 
 intorm his pi'incii)al as to the matters <-oiiniiunicated to him con- 
 I'ccted with the vessi'l insured. His associates reviewed the siune 
 I'ases. 
 
 Tile conclusion of liindley, L. .1., was as I'ollows : ■• it apjiears 
 to nu> to be established by the cases to wiiicli I have reterretl tiiat, 
 
 Itlackliuiii, I,i)\v & Ci>. V. \'i,'ois (ISStl) .M L. .1. ;)I7, 
 
 \i 
 
3 
 
 42i; 
 
 INSURANCE LAW (iF CANADA. 
 
 in order to provoiit fraud and wilful igiKirance on llic part of 
 jiorsons ctfi'ctinu: insurance, no policy can bo enforced by an assured 
 v/lio lias been deliberately kept in ii!;norance of material faets by 
 someone whose moral if not leifal iluty it was to inform liim ot 
 them, and who has been kejit in such ignorance pur[iosely in 
 Older that he might be able to elieet the iuMirance wiihout dis- 
 closing those facts. The per>on who allows the assured to etl'ect a 
 policy under such circum-itances as T am now supposing does not 
 act tairly to the underwriters and althnugh such person may owe 
 them no legal duty, the assui'cil cannot in fairness hold the under- 
 writers to the contract into which they have in fact entered under 
 these circumstances. 
 
 The assureii may himself be pertectly iniioi'cnt when he eti'ects 
 tlie insurance, but as soon as he i^ informed ot the tacts it ceases 
 to be right on his part to take advantage of the concealiui'nt with- 
 out which that insurance would not have been cHocted. In otlier 
 worils, the assuix'd cannot take advantage of the ignorance in 
 which be has hi'i-n im[ii'operly kept by cine wIki nught to ha\"e told 
 him the truth. If it was the legal duty of the pi'rson who has so 
 kept him in ignorance to inform him of the facts coiu-ealed. it is. 1 
 think, clearly settled that he cannot avail himself ot his own 
 personal ignorance of them. Ibit ii' there is no such legal duty on 
 him, the same eonse(pienee ap[ieai's to nie to lolliw it there was a 
 moral duty to tell him the truth, lie may exclude all legal duty 
 to be informed of what lias occurri'd by giving instructions dis- 
 pensing with information and such instructions may be given for 
 reasons whicl ex<'lude all inference of fraudulent intent on hispai't. 
 Hut ill such a case it ap[tears to me that he cannoi eutorce a con- 
 tract of uisurance obtained by such unfair means as those projiosed. 
 [n my opinion Duer and IMiillips are both right in contending that 
 tVaud on till' jiart ot the assurt'i] is not essential to discharge the 
 underwriters on the ground of misrepresentation or concealment. 
 It is a condition ot' the contract that there is no misrepresentation 
 or concealment either by the assured or by any one who ought a 
 a matter of busiiu'ss and fair dealing to have stated or disclosed 
 the tacts to him or to the underwriters for him."" 
 
 Tiie action upon this policy with a different deteiidant seems 
 to have lieen afterwards before the same trial judge as before 
 and a special Jury, in which upon the same tints the judge having 
 submitted tlie question to the jury whctheiihe final ellccting of 
 
 
I: # 
 
 WARRANTIES, REPRESENT ATIONS AND CONCEALMENT, ETC. 
 
 427 
 
 or 
 
 III 
 
 
 the iiisuriincc was V)ut a (■■ tiiiuatioM of tlu- oriijiiial a[i]ilication of 
 till' broker first eiiiiiloyi'd liy t\\v insured and in fact an eikH'tiiiu" 
 the insuratiee liy hiui, tlie jury found that it was, whereupon the 
 judge ilirected a venliet and jiidtftnent for the insurers. 
 
 There was a motion before the full bench to set aside this 
 verdict and judifuient and an entry ofjudu;inent for the insured, or 
 an order I'or the new trial, iqion the u'round that the judge should 
 have directed the jury that the original hnd-cers wei'e not tlie 
 agents cif the insured to etteet the insurance and that the noncoin- 
 nuinicatiou of material iiiftu-niation within the',,' knowledge, but not 
 known to the insured or their tinal bi'okcrs. was not a concealinenf 
 whi(di would atlect the ]tolicy. and should have directeil a verdict 
 for the insured upon the facts. The motion was dismissed. 
 
 These wer<' the facts -. .V firm ol umlerwriters instructed 
 <''iisgow brokers to etteet a re-insiiranci' on an overdue ship. The 
 Glasgow brokers thereupon telegraphed to their Ijondon agents to 
 insure at the rate naiu'd by the underwriters. Tiie Jjondoii agents 
 replied, stating the market rate. Meantime tlu' Glasgow broki'rs 
 receiveil information of the loss of the vessel and without coiniiiu- 
 nicatiug this to the iinderw ritei'> or the liondoii agents teh'graphed 
 to the London agents in the underwriter's name to insure at the 
 market rate. Sub>e(pient negotiations were carried on directly 
 between the underwriters and the London tirni, who ettected a 
 re-insurance at a higher rate tlian that originally named by tlu' 
 undei'writ(i's. The full bench upon the tinding that from these 
 tacts the iii>urance was etl'ected through the (Glasgow agents and 
 they having concealed their information held that there could be 
 no recovery on the policy. 
 
 In support of tlie tinding liy the jury, I'ollock, 1?., in one place 
 said: "■ In the present case the name ol" the vessel, the amount to be 
 insured and tiie whole object o| the bargaining was the same ami 
 the only change w.is in the advanced premium <o that the under- 
 writers not merely continued a negotiation begun by their agents, 
 hut they availed themselves of it by ii-ing and a(h)ptini;' what they 
 had done up to a certain point. It is truly said, no doubt, t hat when 
 oiice till' agents ceased to negotiate their aiitlnu'ity was at an end ; but 
 thirt leaves untouched tlie position that the negotiation was liauded 
 over to the jtrincipal to eomplete and that the London brokers were 
 entitled to treat the mailer as mie entire Iransai'tion." ' 
 
 ' Hlackl)iirn, Lmv ,\: Co. v. lla.sl.im (ISSS) ,■,; I,. .1. ITK. 
 
!■ 
 
 428 
 
 INSURANCE LAW OF CANADA. 
 
 Bowcii. L. J., laid down tlie rule us follows : " It is estuhlisli- 
 t'd law tliat a person dealing with iiii<lenvriters must disclose to 
 tlieiu all the material facts which are known to himself and not to 
 tliem, or, at all events, all facts which they are not hound to know. 
 What are material facts has l)een defined hj- authority. It is the 
 duty of the assured to communicate all tacts within his knowledge 
 which would atfei-t the mind of the underwriter at the time the 
 policy is made, either us t( I takiiiL'' the contract of insurance or us 
 to the premium on which he would tukc it. The n)utt'ria!ity of 
 the fact depends upon whether or not a prudent underwriter would 
 take the fact into consideration in estimating the [iremium or in 
 underwriting the policy." ' 
 
 281. American views upon concealment, Concealment is the 
 suppression of material facts having reference to u [lending insnr- 
 ani'c. known to the applicant, hut not known to tin' insurer. Such 
 concealment, through ignorance or design will, if nniterial, avoid 
 the policy.-' 
 
 The law imposes upon the insureil as a preliminary duty, in 
 the nature of a condition-preceileiit, the disclosui'e of all material 
 filets known to him conncctcil with the risk. The test of nniteri- 
 ulity is in the enhuncemeiit of the premium, Inul the true facts in 
 the case been given ; us when the nature of the suhject of insui'- 
 aiu'C. if known, might intiuence the insurer to decline the risk, or 
 to write upon it only at an advanced rate of premium, it would he 
 dei'mcd nuiterial to the risk. Whatever the form of expression 
 used hy the insured, if it have the etfect of imjiosing upon oi' mis- 
 leading the insurer, it will he held to he material, and upon due 
 proof avoid the policy. < >r. if a fiict usually immaterial he enipiired 
 ahout specifically, it will he c(>nsidered nniterial. Ihil a disclosure 
 waiveil is an ailinission of immateriality.' 
 
 284a. Concealment as to diseases— Untrue answers made 
 in good faith. Knowledge of agent. Tn u casi> where the applica- 
 tion provided that the [lolicy should he rendered null iind void hy 
 reuson of any "untrue or fnunlulent answers," ami in the policy it 
 was stated that the result wouhl he the same if in any ri^sjiect the 
 answers wwv " tidse or truutlulenf,"' the a[iplicutiou and the policy 
 togetlier constituted the conti'act. The ap|ilicant foi' insui'unce on 
 
 TiitL'v. lIvHloiMlssri) I.". c,>. 11. I) :i(>s. - (iriMwolil, Ar> 
 
 (!ri>\v(il(i. liiri, 
 
WAHHANTli;,-!, HEl'KESK.NTAXIONf AMI COXCEALMEXT, ETC. 
 
 429 
 
 his life liud answered negatively all the tiuestioiis pertinent to his 
 previous state of health, as to what diseases he might have had, 
 attendanee of physicians, etc, 
 
 It developed on the trial of an action on this poliey that the 
 insured ha(i had some serious diseases previous to his application, 
 and the effect of his answers to tiie coni[)any was brought before 
 the court. The contention of the beneticiary was that, it false, they 
 were not intentionally so, and the avoiding of the policy was 
 tliereby prevented. 
 
 The Court of Appeal of Xew York, liowever. held, that the 
 statements made in the application were made warranties, and if 
 untrue, they avoided the policy, altlanigh made in good faith and 
 with a belief of their truth ; that the word "false " in the [lolicy 
 was used in the sense of "untrue." and did not limit the effect of 
 the warranty to a statement intentionally untrue ; also that any 
 knowledge of the agent of the comjiany who [irocured the insur- 
 ance, at the time the application was made, of the true state of 
 facts did not alter or affect the ct)ntract.' 
 
 284b. Concealment of a release. The rule in marine insur- 
 ance rtMpiires commuiucation to the insurei- of any infornnition the 
 a[i}ilicant has which may be material to the risk. And the New 
 York Court of A[ipeals has held the same rule applicaltle in a fire 
 iusuranct^ casc.'- 
 
 While this nniy l>e tlu> doctrine ri'iating to the contracts ef re- 
 insurauci' it is not to the same extent ap|>licable to those id' original 
 insnraniH' against loss by fire. In the latter it is usual, by the 
 application or by tin' condition of the policy, to expressly call ujion 
 or re(piire the assured to make disclosures: and so far as he acts 
 in good faith, he is rc(iuireil only to eorr ctly comply with ihe 
 terms so prescribed."' 
 
 In a loss by tire occurring to cotton stored in a warehouse, 
 built upon ground adjacent to a raili'oad leased from the com[iany 
 and, where as part of the lease, a release to the I'ailroad cmiipiiny 
 of all liability it might incur by I'eason of a lire being caused by 
 s[iarks from its locomotivi had been given : — 
 
 The insurers defended on the gi'ound that it was muterial to 
 them to have a knowh'dge of tliis release as affecting their right of 
 
 1 Flint V .Ktiiii l.ito Ins. Vu. (Is7."ii 01 N. Y. .">71 
 
 '' N V . Iluwi'iy I'iro Ins. Co. v N. Y. Fire Iih. Co., i7 Weiui. '.io\K 
 
 •' Hem li. U"). 
 
 !*: 
 
430 
 
 INSUUANCE LAW OF CANADA. 
 
 subrou-ation to the rights of the iiisurtMl as against the railroad 
 eomnauv in case the lt)rts was caused l»v lire eoinimuiieat'id from its 
 loeomotivos. 
 
 On a motion for a new trial the (Jiiiteil States Circuit Court 
 heUl that tlio ([uestiou, wlietlier the omission to maki' known tlie 
 existence of such release invalidated the insurance [jollcy on the 
 propert}-, depended upon whether such release was a material fact in 
 the contract of insurance, which was a ipiestion t'oi' the jury, and 
 that the instruction of the district judge that if the insunu's in the 
 territory in (piestion made no difference in rate, with right of suh- 
 roiration or without it. or if tiiey found vliat there was neither 
 usage or custom showing the materiality of the rigiit of subroga- 
 tion among insurers in theii' accejitance oi- refusal ot risks, they 
 might find that the failure to mention the 1'act of the release of the 
 railroad company where the a^jplication was \i.'rl)al, was not a con- 
 cealment of a material fact which would invalidate the policy, was 
 a proper instructitui.' 
 
 284c. Concealment of financial embarrassment. -False 
 statement by ag^ent. In an action upon an aceideiit policy where 
 the assured had been drowned, Jeidvins, J., discussed the i[tiestion 
 o\' non-disclosure of liiiancial I'lnljarras-ment by the assured in his 
 ai)plication as follows : 
 
 " Tt cannot lie said that the assui'i'd was a jiarty to the framl, 
 if fraud there was u[)on the iiisurei'. Assuming, as fouml l»y the 
 jury, that his death wa> accidental and that the in-iuraiu:e was 
 otherwise ettected in good faith, the mere tact of iioii-disclosure of 
 his embarrassments was not wrongt'ul. He was not in([uired of 
 u[>on that ^>ubject. Silence uiuler such circinusrances was not 
 fraudulent. Most men I'ngagcd in large enterprises meet with 
 timincial embarrassments and their incomes are tluctuating. It' no 
 lalse statement is maile, inducing insurance which cotdd not other- 
 wise be obtained, there exists no ohligation to disclose one's timin- 
 cial condition. If the inlormation he dccnu'il essential it should 
 1)0 iiisi.^teil upon, not waived, and the assureil sluuild not: l)e pei- 
 sUi.ihMl to silence by the active negligence oi- fraud of the agent of 
 the assurer." - 
 
 As to the principle which is the liasi^ of this i-ulc the judgment 
 
 1 I'elzfr Mimuruc. fo v. St. )':uil 1'. t^: .M. Iim, ('i).,(1nk)» II I'oii lU'p -111 
 • Siiwyer v lv|uit. Ace. Ins Co., (ISIKI) I'J h"..!. iii'ii. :!ll. 
 
li 
 
 m 
 
 m 
 
 WARRANTIES, REPRESENTATIONS AND CONCEALMENT, ETC. 
 
 431 
 
 proceeded: " The insured was not asked as to his ineomo, hut after 
 he had signed the apphcatiou the statements in whicli were wai'- 
 raiited, the airent, without liis knowledge, inserted a statement 
 that it was not less than a Imndred dollars a week. This statement 
 was ill a ilitt'erent handwriting from the rest of the applieation and 
 the iiolicy was issued hy the home oliiee. The eompany defended 
 on the ground that this was a false statement." 
 
 Jeidvins, J., after harmonizing tiie various deeisions hearing 
 upon the ipiestioii as rendered hy the Supreme Court of the L'nited 
 States held the company liahle, although the insured was practi- 
 eally insolvent, and his iiicume mut-h Kss thar. stated in the appli- 
 cation. He thus disposiMl of the insurer's contentions : " It is clear 
 that the defence of hreacli of warranty, on the ground of false 
 statement of income, nuist fail for the plain reason that tiie assured 
 executed no such warranty. The paper signed was a l)lank as to 
 that suhject. The tilling of that hlaiik was suhsequent to the sigii- 
 iiiii' and was the act of the agent of the eom[iany, and without 
 authiU'ity ot the assured. Tie cannot he hound u[ion a warranty of 
 which he was ignorant. Xor does the case fall within the rule 
 applicalile to negotiahle and other instrunieiits executed in ])laiik 
 and entrusted to the custody of another for use for the heiietit nf 
 till' signer or others, that, as hetween such [lartyand innocent thii'd 
 [larties, the person to whom the document is entrusted, is deemed 
 the agent of the party \n till the hlanks necessary to perfect the 
 instrument and this lur two sutKcicnt reasons; The ap['licatii)n 
 was written hy the agent, who was apiiarently clotheil with author- 
 ity to do all acts iice<lful in tlu- premises. Tfe [)ro[)ounded the 
 i|Uestioiis which he dcenicil [ii'dper and received ami noted tlie 
 answers thereto. He made im ciii[iiiries touching the income of 
 the assured nor was any stateinent demanded u[ioii the suhject ; in 
 all this he acted for the company and was y)/''i hur tvVc. the cor[iora- 
 lion. His silence as to the iiuestion was eipiivalent to an a.-sertioii 
 to the assured that (he ipiestioii was not material and was waivi'il. 
 lender such circniiistancc> the signing of the a[ipricatioii with the 
 hlank unlilled cannot !)c claimed as an authority to the agent to 
 till the hlank. The rule applies to instruments eiiirusted to one 
 who repri'-ents the signer, and is therehy clothed with power lo 
 impose upon iniiorent third [larties. But here ilie insti'iuiiciit was 
 deli\'ered to lhe;igenl of t he company. In such lase the assureil 
 is not estopped to ih'iiy the Warranty. The coin|.:iny may, in lint, 
 
4oJ 
 
 INSURANCE LAW ol' CANADA. 
 
 liavc relied iiiiou tlic statoiiiciits tillod in tlio blank liv its airoiit : 
 but that is unavailing, bocauso to work an estoppel the niist'on ■ 
 ception as to the state of facts must have been induced and the 
 eonipany nnist have been misled by the words or eoiuliiet of the 
 assured, but liere the imposition was tlie aet of its own agent, 
 I'uabled by its authority and not by the aet or eonduet of the 
 assured, to work imjiosition. Ilis acts with respect to the prepara- 
 tion and reL-eijit of the application must be deemed the acts of the 
 company. The prini'ijial should, therefore, liear the conserpiences of 
 the eoiuluct of a negligent or fraudulent agent intervening between 
 the assurer and the assured, the latter being guiltless of fraud or 
 collusion, and this ujion tlie familiar i)rinciple that, when one of 
 two iiuuicent persons must suffer by the fraud cu" negligence or 
 unauthorised aet of a third, he who clotlied the third with power 
 to deceive or injure must sufh'r the loss." ' 
 
 284d. California statute as to concealment Concealment 
 of rumor of vessel being lost — The Civil Code of California 
 provides (2561) that "a neglect to t'ommunicate that wliich a party 
 knows and ought to communicate is a concealment ; *' (2562) "a 
 concealment whether intentional or unintentional entitles the 
 injured party to rescin<l a contract of insurance ; " (2568) "each 
 party to a contract of insurance must communicate to the other in 
 good faith all tiicis within his knowledge and which arc, or which 
 he believes to be. material to the contract, ami which the other had 
 not the means of ascertaining and as to which he makes no war- 
 ranty."' 
 
 The owner ot a cargo ot wheat loaded on a barge which was 
 overdue held a conversation with the consignee of the barge, in 
 which he was tohl that a barge had been lost, and that if he was 
 not insured lie " luid better get insured pretty (juick." He applied 
 at once to the manager of an insurance company for insurance on 
 the cargo of wheat, but did luit inform him of this rumor. At'ter- 
 wards when he knew the barge was the one lost, he then stated 
 what he had been told previously to liis application. Tlu' nuuniger 
 gave him notice of a rescission of the contract. 
 
 There was a verdict for the company in an action ujion the 
 liiilicy, the defi'uce being a concealmi'Ut on the part of the applicant 
 o!' nniterial facts. The Supreme Court ot' California sustaini'd this 
 
 Sawyer v. Ktniilable Ace. Ins. Co . i\S'Hi) V2 I'Vd . Hep. :tO, liti'd siij,ra S lisk'. 
 
WARRANTIES, REl'RESENTATIONS AND CONCEALMENT, ETC. 
 
 433 
 
 A'crdk't saying: " Tlio eoDvictioii is irresistible tliat the insured 
 feared liis wheat was lost, hoped to get out a policy before the loss 
 was known and did not deal fairly with the insurer, because he 
 did not place the insurance coni]>aiiy in a situation such as he 
 occu]iied, to know all the necessary facts and circumstances believed 
 by the insured to be material attending the non-arrival of the 
 barge." ' 
 
 285. Vacancy— Notice to agent. — The insured cannot recover 
 upon a policy which contains a condition making the contract 
 void, if the premises be left unoccupied for more than 15 days 
 without notice to the company, and it appears that the premises 
 wore vacant at the time of the lire, and had been so for a mucli 
 longer period than 15 days, without notice having been given to 
 the company." 
 
 But where the policy provided that the contract would be 
 null if the house was left vacant without the consent of the com- 
 pany endorsed in writing on tlie policy, it was held nevertheless 
 that notice to the com[iany's local agent before the policy was 
 issued was sufficient and the policy was really issued on a vacant 
 house, though it read differently.^ 
 
 285a- Vacancy— Knowledge of manager of company. — On 
 
 the argument of the appeal the defendants for the first time set up 
 that by the application the plaintiff had described the building in- 
 sured as occupied by himself and his tenants as a dwelling house, 
 thereby contracting with the defendants that it was so occupied, 
 whereas, in fact, it was then vacant, and that there being thus an 
 entire misdescription of the subject matter of the insurance, the 
 risk never attached. 
 
 On the pleadings and at the trial this misdescription was 
 relied upon merely as being a material misdescri[)tion avoiding the 
 policy under the first statutory condition. This issue was found 
 in favor of the plaintiff, it being proved that the policy had been 
 issued in substitution of a former polity in the defendant company, 
 the risk on which they had continued after accepting notice that 
 the building had l)ecome vacant, and the application for tlic sub- 
 
 I lliirl V. Hritisli & \-\<v. M.u\ Ins. Cd., dssiti S(K"al . 11(1. 
 
 - C:\i(liiKil V. Diiiii Fill' (S: Mar. Ins. t'd.ML.X. :it)7. 
 
 ■' Agiiciiltuiiil Ins. Co. of WiUoilown anil Ansley, 17 HI,. IDS g.li. 
 
 28 
 
434 
 
 INSURANCE LAW OF CANADA. 
 
 stituted policy liad boon tillod up by their goiienil niiiiiagcr, to 
 wlioiii the plaiiititt'had i;-iven all the iiitonnatiou ho askod lor, and 
 iiad told hiia that the buildiii.n' was then unoccupied. 
 
 The court was of opinion that the knowledge of their general 
 manager was the knowledge of the eompany ; that the mis- 
 description was immaterial, and that the <lefeiidants could not 
 be pennittcd at that stage of the cause to shift their ground aiul 
 set it up as a warranty or part of the contract.' 
 
 285b. Vacancy— Loss paid to loan company— Subsequent 
 mortgages Assignment of mortgage — The defendants insured 
 seven houses helonging to the plaintiff" and wliich had been mort- 
 gaged by him to a loan company and which were described in the 
 policy as " a two-storey frame, rough cast, lelt roofed block, * ='= =•' 
 containing seven dwellings, six of which are occupied by tenants, 
 and one by assured." In the application, tilled up by defendants' 
 agent, the question, as to how many tenants, was answered " six 
 tenants and applicant," the agetit informing defendants that " the 
 
 .largest house of the lot the applicant will occupy himself." A 
 variation of the statutory conditions was printed on the policy in 
 these words : "This policy will not cover vacant or unoccupied 
 buildings (unless insured as such), and if the premises shall become 
 vacant or unoccupied, * * * this policy shall cease and be void 
 unless tlie company shall by endorsement * * * sillow the in- 
 surance to be continued." 
 
 A fire occurred by which the houses were destroyed, and de- 
 fendants paid the loan company the amount of their mortgage, 
 under a prior general agreement with them liy which the policy 
 was to be treated between the parties to the agreement as uncon- 
 ditional except as to the mortgagor, and whereby the defendants 
 were entitled, upon payment to the loan company under the policy 
 or otherwise of any loss as to which they claimed to have a defence 
 against the mortgagor, to be subrogated to the loan company's 
 
 . rights and to have the mortgage assigned to them. For some 
 months prior to the fire several of the houses became and remained 
 vacant, of which the plaintiff' was aware, but of which he did not 
 
 .notify defcndatits. In an actioi\ by plaintiff upon the policy, 
 it was decided that the actual facts as to occupancy being before 
 
 ' Hoddick v. Sauuocii Mutual I''iiv Ins. Co., 15 A.R. IWW. rcforn-d (o siipni >''S 
 247, -IW. 2.'irt, 282 ivml infra 2>V,h. 
 
m 
 
 WAURANTIES, REPRESENTATIONS AND CONCKALMENT, ETC. 
 
 4:5o 
 
 tlit'ni lit tlio time of the iqiplicatioii. the (lotoiidants wore liuljlc, 
 nor wore tliey rclit'Vi'il hy tlii'ii' variation of tlic statutory coiidi- 
 tioiis that tho policy woiilil not covi'i- vacant or unoccupied 
 houses. 
 
 And, also, that the vuriation as to the preniisi's heconiing 
 vacant or unoccupied wliere, as here, tlie liouses were of a class 
 likely to he occupied hy teiuiiits tor sliort periods, was unreason- 
 ahle, and the reasonahleness of the variation was to he tested witli 
 relation to the circumstances at the time tho policy was issued. 
 
 Sinilh V. The Cit;/ of London Insurance Company, 14 A.R. 328, 
 ami IhdbKjh v. The Royal Mutual Fire Insurance Compayii/, 5 A. R. 
 87, were specially referred to : — 
 
 But it was said that the fact that several of the liouses were 
 vacant to plaintitt's knowledge tor some months hefore the lire, 
 was, under the third statutory condition, a change material to the 
 risk, which was therehy increased, and the failure to notify tlie 
 defendants avoided the policy " as to the i>art artected," which in 
 tliis case was the whole hlock : — 
 
 And, also, that the meaning of the word " risk " in the third 
 statutory condition is not distinguishahle from the same word in 
 the tirst statutory condition, and that subsequent mortgages exe- 
 cuted liy plaintitt" were matters relating to title, and were not 
 covered. 
 
 Reddirl; v. The Sawjeen 3Tutuul Fire Ins. Co., 14 O.R. 50tj, 
 supra ^ 285a, was followed : — 
 
 And, lastly, that althotigh defendants had paid the mortgages 
 and taken an assignment of one of them, they could not liold it 
 against the plaintift. 
 
 Imperial Fire Ins. Co. v. Bull, 18 S.C.R. 697, was followed.' 
 
 286. American decisions on vacancy— New Hampshire 
 ruling. — The New Hampshire Supreme Court lias said : " The 
 meaning of tho words 'vacant or unoccupied ' as used in the con- 
 tract of insurance is that which the parties intended to give them, 
 and that intention is to be tound from the whole instrument, the 
 subject matter of the contract, and the situation of the property 
 insured. The object of tho stipulation against vacancy and non- 
 occupancy was to guard against the increased risk which arises 
 from the absence of everybody whose tluty or interest might afford 
 
 5 si. 
 
 ti! 
 
 ' McKay r. The N'orwicli rnion Firo Ins. C'd., i-'T O. U. '2iil. 
 
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 436 
 
 INSURANCE LAW OF CANADA. 
 
 some protection. In the same clause of the contract, ' increase of 
 risk from the mode of occupation and use of the premises,' and 
 ' increase of risk hy any means whatever,' arc mentioned jis express 
 grounds for avoiding the policy. ' If the huildings shall he occu- 
 pied or used so as to increase the risk, or hecome vacant and 
 unoccupietl for a peritxl of more than ten days, or tlie risk he in- 
 creased hy any means wliatever,' is a statement in which the 
 leading idea in the condition of forfeiture is ' increase ot risk' and 
 that idea must have been intended as a part of the definition of 
 the words ' vacant and unoccupied.' 
 
 It was the increase of risk from the loss of care and attention 
 of persons otherwise present whicli the parties intended to guard 
 aarainst by the stipulation of forfeiture in case of vacancy and non- 
 occupancy for more than ten days. Tliey intended by the words 
 ' vacant and unoccupied ' as used in the policy and in the connec- 
 i! j'l which they were used, such a desertion of tlie premises and 
 f, - .', from them as would materially increase the risk." Further 
 o" .1 'V said: "The question ot vacancy and non-occupancy, and 
 the .lUestion of increase of risk from these and other changes of 
 circumstances, are questions of fact for the jury.' But ^"here the 
 undisputed facts, as naturally interpreted, show vacancy and non- 
 occupancy and consequent increase of risk, or where there is no 
 evidence to rebut, modify or explain the evidence of increased risk 
 from the change, there is no (luestion of fact to submit to the jury, 
 and it seems to be the duty of the court to declare direct tlie 
 verdict." ' 
 
 286a. Nebraska ruling. — The Nebraska Supreme Court has 
 held in a case before it, that a mere temporary absence of tlie 
 occupant of a building therefrom will not render void a policy of 
 insurance which contains a provision that the policy shall become 
 void in case the building becomes vacant.'' 
 
 287. Statements as to belief, expectation or intention- 
 Promissory representations. — An expression of the belief, expec- 
 tation, or intention of the insured, is not a representation that the 
 fact or thing believed, expected or intendeu, either actually exists 
 or will certaiidy occur, but it refers solely to his mental condition 
 
 I Moorpv. PhiiMiix Fliv Ins. Co (IHS(I), (H N.ll. H(i, 142, li:i. ■' Iiliin. 
 'SpriiiKlli'Ul K. & M Ins. Co v. McLinmn.s, WKt, 2H Nob. 840. 
 
WARRANTIES, REPRESENTATIONS AND CONCEALMENT, ETC. 
 
 437 
 
 at the time it was made, and will not aftect the policy, unless the 
 purpose of making it was to deceive the insurer.' 
 
 287a. Expected occupancy of a house. — In the case of 
 Kimball v. ^tna Ins. Co.' the i)olioy was issued on a dwelling 
 house in consequence of a promise that it would he occupied. A 
 condition of the policy was that, " if iii any written or verbal 
 application for insurance the assured makes an erroneous represen- 
 tation, materially increasing the risk, the company is not to be 
 liable." The insured had said : "The house would be occupied; 
 that he had a man in view who was going to occupy it." The 
 promise was not carried out, the house remaining empty. 
 
 It was held, that failure to carry out promise, (no fraud being 
 proved) did not avoid the policy, though the risk was increased. 
 This case has been controverted and criticized, but is considered 
 well founded, and supported by judgments in England and the 
 United States. At the worst, all that could bo said against the 
 plaintiff was, that he was bound to occupy in a reasonable time.' 
 
 287b. Oral promisaory representation honestly made- 
 Oral representation as to a future fact honestly made can have no 
 effect. It is a mere statement of an expectation ; subsequent dis- 
 appointment will not prove it untrue.* 
 
 2870. Date of sailing. — Judge Mackay points out that 
 Dennistoun v. TAllie is the strongest case showing that an oral 
 representation promissory may be set up to defeat a written policy, 
 but examination will show that the representation in this case was 
 in no sense promissory, or relating to anything after execution of 
 the policy. The representation was an untrue statement of a past 
 fact. The vessel had sailed 23rd April and yet it was represented 
 that she was to sail at 1st May, a future date. She was lost shortly 
 after the date at which she was stated as to sail." ' 
 
 S87d. Validity of promissory representations questioned. 
 
 — It has been contended by an able jurist that there Is no such 
 thing as promissory representation." 
 
 ' Catlln V. HpriiiKlU^lil I''. Iiis. Co., 1 Smnnor, \M ; Hryant v- Oi'ciiii Iim. Co., ^2 
 Pick. 2(K). 
 
 ■' lluor, sec xlv., cited In 13 L.N. JJTO. 
 
 ■■' i;J Ij. N. H.Vt, luid sm) 3 Kent Coinin. 2SI. hut sec Arnoulil 5(10. 
 
 * 13 L. N. X^). » lb, 
 
 " Seo opiiiiun of Cliiincollor Wivl worth In .VNton v. Mi'cliunirH' Mut . Inn, Co., 4 
 Hill 321). 
 
 t 
 
 
 ■ it m 
 
 :il • 
 
-r- 
 
 438 
 
 INSURANCE LAW OF CANADA. 
 
 This learned judge insifts that any agreement on the part of 
 tlio insured in reganl to the future must, in order to hind him, bo 
 expressed if) the policy, and, unless it is so expressed, any allegation 
 and i>roof of itasadefence on the part of the insurer will be a direct 
 violation of the rule tViat extrinsic evidence is inadmissible to vary 
 or control a written contract, and consequently should not be per- 
 mitted. Though he admits that the case is different with a repre- 
 Bcntation of an existing i'act, his argument necessarily bases the 
 effect of such a representation in invalidating the policy simply 
 upon its untruth at the time it is made, and therefore holds that it 
 is of no force, so far as regards any implied stipulation that the fact 
 represented shall continue to exist during the whole period of the 
 risk. 
 
 Thus, where one represents his building as occupie<l for a 
 certain specified purpose, the result of the (-hancellor's argument is 
 that if these facts are not true at the time the representation is 
 made, then the policy is void, but if, on the next day or week 
 after the policy is issued, the hoiise is permanently put to a more 
 linzardous use, it will constitute no defence for the insurer to 
 an action on the policy. 
 
 ]{ut this conclusion is opposed to the invariai)le tenor of the 
 decisions both in England and this cotintry, such representations 
 having been always construed to be representations, not only that 
 the fact exists but also that it will continue to exist throughout the 
 diiration of the risk, so far as this depends upon the insured. 
 The opinion of the Chancellor even in regard to representations 
 purely and solely promissory is not supported by the decisions.' 
 
 Duer has ably reviewed the position taken in Alston v. 
 Mechanics" Mul. Ins. Co. and has shown its error, as well as that 
 of Di'ijant v. Ocean Ins. Co., which supports the opinion of Chan- 
 cellor Walworth, and he has plainly demonstrated by an analysis 
 of the various decisions on the subject, that promissory repre- 
 sentations have lieen from the first recognized l)y the courts, and 
 that a substantial compliance with them is necessary to the valid- 
 ity of the policy.^ 
 
 It must, however, be admitte<l that the settled law in regard 
 to the effect ol misrepresentation without fraud upon the poKu'v aa 
 
 ' Edwards v. Footiii-r, I Ciiiii|), KV) imd hoo 13 L, N. XM. 
 '' Sep Dui'i- oil Iii»,, Li'Ct. II. noli- (I. 
 
WARRANTIES, REPRESENTATIONS AND CONCEALMENT, ETC. 
 
 439 
 
 le 
 
 )ns 
 
 as 
 
 laid down in the cases above cited, and denied in Alston v. Me- 
 chanics' Mat. Ins. Co., ia a departure from the rule in reference to 
 the admissibility of parol or extrinsic evidence. It is plain that 
 the insurer is permitted to show by proof of an agreement extrinsic 
 to and independent of the policy, that the contract is not such as 
 the terms of the policy, taken by itself, would imply. Duer and 
 Arnould agree that this salutary rule of evidence has been in a 
 measure violated ; and while they consider the law as too well 
 settled, both in the United States and in England, t<i bo shaken, 
 they still express a decided preference for the doctrine prevalent 
 on the continent of Europe, which requires the insertion in the 
 policy of all material facts, which however are not to be construed 
 as warranties, unless an intention to that ettect is expressly and 
 une(pii vocally declared. 
 
 .Fudge Mackay is of opinion that extrinsic evidence is not 
 admissible.' 
 
 287e- Promissory representation as to a watchman. — In 
 
 the rpiestions and answers before a policy "watchman to be kept at 
 all tiuH's," itc. was promised. The sheriif seized the mill and 
 locked it up, and the day after it was burned. So the warranty 
 about the watcliinan was not kept. The court held the sheritl's 
 seizure to be no excuse.'- The Court ot Appeal ol Ontario seem 
 to hold tha this is not a warranty tor a continuance of employ- 
 ment of a watchman^ 
 
 A continuous practice to keep is iu)t warrantetl here ; it is a 
 mere statement (»f a fact then existing.* 
 
 287f. Answers true to the best of applicant's knowledge 
 and belief. — An application for a life insurance i)olicy containetl 
 the following declaration after the applicant's answers to the ques- 
 tions submitted : — " I (the person whose lite is to be insured) do 
 hereby warrant and guarantee that the answers given to the above 
 que^tious (all which (piestions 1 hereby declare that 1 have read 
 or heard read) are true, to the best ot my knowledge and belief, 
 and I do hereby agree that this proposal shall be the basis of the 
 contract between me and the said association, and T further agree 
 
 ' in L. X. -.m. 
 
 " VivHt S itioiml Hank nf nallHtonSpii v. Ins, (Jo. (if N. A., 7 All>aii.v I.iiw .1. IS7. 
 :' \V.)iNwii'k V. ("aiiiiilii l'"iiv iiiid Miir. Ins. Uo., U .V.|{, 4M7 (I.S71)), 
 ''(■rant v, .-IClnn Ins. Co. 
 
 
440 
 
 INSUKANCE LAW OF CANADA. 
 
 that any mis-statcmenta or suppression of facts made in the 
 answers to the questions aforesaid, or in my answers to be given 
 to the medical examiner, sliall render null and void the policy ot 
 insurance herein applied for, and forfeit all payments made thereon. 
 It is also further agreed that should a policy be executed under 
 this application, the same shall not be delivered or binding on the 
 association until the first premium thereon shall be paid to a duly 
 authorized agent of the association, during my lifetime and good 
 health. I (the party in whose favor the insurance is granted) do 
 also hereby agree that this proposal and declaration shall be the 
 basis of the contract between me and the said association." 
 
 The Court agreed with the judgment of the court below, that 
 this was not a warranty of the absolute truth of the answers of 
 the applicant, but that the whole declaration was qualified by the 
 words " to the best o( my knowledge and belief." 
 
 At the trial the jury were charged that, if there was wilful 
 misrepresentation, or such as to mislead the company, they should 
 find for the defendants, but that if the answers were reasonably 
 fair and truthful to the best of the knowledge and belief of the 
 applicant, their verdict should be for t' plaintitt's. 
 It was decided to be a proper direction.' 
 
 Where the application contained a number of questions 
 and answers, and at the foot was a declaration signed by the 
 assured, that to the best of his knowledge and belief the foregoing 
 statements and other particulars were true ; that the declaration 
 should form the basis of the contract, and that if any untrue 
 averment had been intentionally made therein or in replies to the 
 company's medical adviser in connection therewith, the policy 
 should be void. By the policy the declaration and " relative 
 papers" were made the basis of the contract, with the proviso 
 that if any fraudulent or wilfully uiitruo material allegation was 
 contained in said declaration ; or if it should thereafter appear that 
 any material information had been withheld and any of the mat- 
 ters set forth had not been truly and fairly stated, then the policy 
 should be void. 
 
 To the questions in the application as to the name and resi- 
 dence of the usual medical attendant, and for what serious illness 
 had he attended, the assured answered " none," and to the ques- 
 
 'Supronu'Ct. of Ciinada, Oonfi'tU'riitii)n Life Ass. v Miller, II S.C H. IM, si-e 
 Infni piiKC 4411. 
 
WARRANTIES, REPRESENTATIONS AND CONCEALMENT, ETC. 
 
 441 
 
 tion by the medical adviser as to wliat other disease or personal 
 injury, and from whom had he received professional assistance, 
 etc., the assured answered " none." It was found that these 
 answers were wilfully untrue and that the information was wilfully 
 withheld from and was materisd to be stated to the company. 
 
 The court held, that these answers constituted breach of ex- 
 press contract between the parties and 'lorefore the polic}' was 
 void.' 
 
 In this case the pleas setting up the above defences were 
 added at the trial, and after the case had been in progress for some 
 time. The action was commenced before the Ontario Judicial 
 Act came in force, but the trial took place thereafter. 
 
 It was belli, that whetlier under sec. 8 of the Administration of 
 Justice Act, or under Rule 128 of the Ontario Judicature Act, the 
 pleas were properly added. 
 
 A replication to these pleas set up that certain correspondence 
 between the company's General A[anager and their local agent, 
 but of which the assured had no notice, directing the agent to 
 make eiirpiiries as to habits, etc., of the assured, upon the result of 
 which the agent was to issue the policy, constituted an agreement 
 that the company would rely on the judgment of the agent alone 
 founded on !»"ch enquiries. 
 
 It was -eld, the replication could not be supported either at 
 law or on the itscts. 
 
 Per Wilson, C. J. : Where the materiality of certain enquiries 
 is obvious and is assumed at the trial, as e.g. with regard to the 
 temperate habits or otherwise of the deceased, there is no need to 
 submit it to the jury. The manager of the defendant company enter- 
 taining doubts as to the propriety of accepting A. ll.'s application 
 for a risk on his life, caused the local agent of the company to 
 make further enquiries as to A. R.'s habits, etc. On receiving a 
 satisfactory report from the agent a policy was issued. 
 
 It was held, the defendants were not thereby precluded from 
 relying upon the written aiipiicatiou of A. R., and showing that it 
 contained wilfully untrui! statements, the eflect of whicii was by 
 the express stii>ulations thereof sufHeient to avoid the policy. - 
 
 In a case above, at the end of questions in an application for 
 insurance, made in December, 188!], and forming part of the appli- 
 
 V\.\ 
 
 !- '1 
 
 '1 'I 
 
 'Rus.oH v. Canadiil-ifo Ass. Co., 32 C.I'. S.Vt, C.IM). 
 W6. ftiiilS A.U. 71(1. 
 
 Ilil 
 
442 
 
 INSURANCE LAW OF CANADA. 
 
 aitioii, was an awrocinent signed by insured stating that he war- 
 ranted and guaranteed that the answers to the said questions were 
 true to the hest ofhis ivnowledge and holiet', and he also agreed 
 tluit tlie application should be the basis of his contract, and that 
 any misstatement or suppression of tacts in the answers to said 
 (juestions. or in his answers to the medical examiner, should render 
 the policy null and s'oid. The proposals and declarations were 
 also made the basis of the contract. Endorsed on said application 
 were answers given to questions by a medical examiner, and at the 
 end thereof a certificate, signed by insured, stating that he had 
 m.ule full, true and complete answers to the questions propounded 
 by said examiner, and agreed to accept the policy on the terms 
 mentioned in the application. 
 
 In answer to a question whether he had had any serious illness, 
 local disease, or personal injury, and if so of what nature, insured 
 answered, " No, excejit a broken leg in childhood.'' There was an 
 answer to a question giving one T.'s name as that of liis usual 
 medical attendant, and in answer to another question, whether he 
 had consulted any other medical man, and if so for what and when, 
 insured replied '-Dr. A. for a cold." Insure<l had been thrown 
 from a load of hav, and on his examination in a suit for daniages 
 against the municipality, he swore e had been live weeks in bed 
 sulfering from his diest and was at the time unfit for work of any 
 kind, and had been attended by three doctors. No mention was 
 made of this accident or of the doctors. 
 
 In reply to a question whether his grand-parents, etc., 
 brothers, etc., ever had pulmonary or other constitutiomd disease, 
 he replied, " No" ; and he also stated, in reply to questions as to 
 what disease his brother hail died from, that he had died from 
 overgrowth. It was shown that an elder brother had been treated 
 by Dr. A. some years before for pulmonary affection and that 
 insured had said that the brother, who died, had bled at the lungs 
 and liad been ill for some months before he died. Insured, also, 
 in answer to a question whether any material fact l)earing on his 
 physical condition or family history had been omitted replied 
 " No." Defendants admitted policy, proofs of death, ju-obate, etc., 
 and accepted burden of proof at the trial, and claimed the right to 
 begin, which was refused. 
 
 On motii) in term, copies of letters and documents, signed by 
 the insured, sent to the government for leave to remain off a 
 
WARRANTIES, REPRESENTATIONS AND CONCEALMENT, ETC. 
 
 443 
 
 hoincrttcad in the Xortli-West and showinj; that he had heon 
 KiiUV'i'iiig from coiigoHtioii of the hmgs and iUness, from the «jtring 
 of 1883 to the spring of 1884 wore produced. It was shown tliat 
 tlie existence of some such documents hiu\ hoen suspected and that 
 they liad been searched for in the government offices hut coidd not 
 he found, and that defendant received them tlie (hiy after tlie trial. 
 
 It was liehl, that phiiiititt's had tlie right to begin tiotwithstand- 
 ing such atlmissions. Wilson, C J., reserved the consideration of 
 the admission of the new evidence. l*er Armour, J. : It could 
 not he received, as it was merely corroboration and its suspected 
 existence would have been ground for asking to have the trial 
 postponed. Per "Wilson, C. J. : There should be a new trial. 
 There was evidence to go to the jury as to the truth of answer 
 given respecting the health of the deceased brother. The jury 
 should have been asked to say whether the answer as to 
 en(piiry was a misrepresentation in fact. That tlie certificate 
 meant the answers were given upon a knowledge of tlu' facts 
 and upon insured's belief in the truth ot those facts, and a state- 
 ment made without knowledge would not be protected by the 
 formula '"best of knowledge and belief," il insured had no 
 knowledge, nor would such statements be i)rotected if made re- 
 gardless of the insured's Itclief in the truth of such knowledge as 
 lie had. The proposal was a warranty that the answers were true 
 according to the best of his knowledgi'. IVr Armour, .1. : The 
 direction to the jury, whether insured had stated to the best of his 
 knowledge and belief the truth in regard to deceased brother, was 
 sufficient. As to the accident it was one which ought to have 
 been mentioned, but it was properly considered ot too little im- 
 portance by insured or else had escaped his memory at the time of 
 tlie application, and it was sullicient for the jury to have found 
 insured did not wilfully withhold the fact, but answered to the 
 best of his knowledge and belief; and the proposals were not 
 warranties. The court being e(pially divided in this case the 
 motion for a new trial was dismissed with costs.' 
 
 It is held that where misrcprescntatiotis contained in the ap- 
 l>lication are to the knowledge of the assured, such nullity may he 
 invoked by the insurer without any return of premiums paid.'' 
 
 ' Miller V. C,)iife(ieriitioii Lift- Ass. Co., 11 {). H. lL'<»,y H. I), allliiiu'd 14 A.M. 218. 
 14 S. (;. 11. :t;«l. Sci- .supra imKo.s 4:«», 4I1». 
 
 '■"New York Mfu Iiis. Co. v Piiri'iif, MQ I,.|{ lOJl, referred to (»i/;yi S :UI."), and 
 N. Y. Mfe IiiH. Co. V. Tiillwt. :» Q. L.U. llH. C.C. I,.C. 2.-i(ll. 
 
444 
 
 INSURANCE LAW OF CANADA. 
 
 f ' 
 
 
 
 in 
 
 In a recent and leading case licard before the House of 
 Lords, on an ai>i»eal from the Scottish Court of Sessions, the 
 declaration appended to the answers of the insured connected with 
 the pro[)Osal for insurance was to the etteet that the foregoing 
 were true, and that the assured agreed that this declaration should 
 be the basis of the contract, and that if any untrue averment, etc., 
 was made, the policy was to be absolutely void, and all moneys re- 
 ceived for premiums should be forfeited. The policy recited this 
 declaration as the basis of the contract. 
 
 Among the questions asked the proposer were: "Are you 
 temperate in your habits ?" and " Have you always been so?" He 
 answereil to the first, " Temperate." To the second, " Yes." The 
 payment of the policy upon his death was refused on the ground 
 that these answers were false and avoided the policy. 
 
 The House of Lords reversed the Scottisli Court of Appeal, 
 and held that the declaration taken in connection with the policy 
 constituted an express warranty that the answers to these ques- 
 tions were true and, the evidence showing that they were untrue, 
 the policy was absolutely null and void.' 
 
 Lord Fitzgerald, in this case before the House of Lords, gave 
 this definition : "Temperate in habits" is a sentence to be inter- 
 preted, and, though not to be taken in the Pythagorean sense of 
 " total abstinence," yet seems to import abstemiousness, or at least 
 moderation, the rule of ' not too much ' by temperance taught." 
 
 Where the words in the contract bind the applicant to make 
 complete and true answers to all (luestions asked him, even if these 
 questions are immaterial to the risk, the company is entitled to a 
 truthful answer, and any untrue statement would vitiate the policy.' 
 
 Shipnian, J., in a case involving the question whether or not 
 an applicant for membership in a benevolent order warranted the 
 truth of an answer to the (juestion, "Have you been rejected by 
 the medical examiner of any lodge or society ?" gave it as his 
 opinion that the ai>plicant was required, under the contract, to 
 answer the question according to his knowledge or reasonable 
 means of belief, and not to misrepresent or suppress known facts, 
 but that he did not warrant the absolute truth of his answers.* 
 
 ' Thomson v. Weems (1884>, App. Cas. (II. of I, ) 071, and see Life Association 
 of Scotlanil v. Foster, 11 Ct. Sess. Cus. (3nl series) ;J.51. 
 '•i TlioniHon v. Weenis, supra note 1. 
 » McCoUum V. Milt. Life Ins. Co. ISHit, 55 Hun. Ift'l. 
 <Sen<ni v Supreme Loci^e K. of H. (ISST), 211 Fed. Hep. 8yf). 
 
WARRANTIES, REPRESENTATIONS AND CONCEALMENT, ETC. 
 
 44f 
 
 In an application the assured corti lied " tliat the answers nuuU' 
 hy me, etc., are true, in whirh tliere are no niisrepresentations or 
 suppression of known tacts," admitting? that such stiltcments were 
 a warranty. In a suhsequent paragrai)h occurred the words : 
 "The above rpiestions arc answered to my best knowU'dge ami be- 
 lief." The Now Jersey Supreme Court treated the language as 
 ambiguous and adopted the rule of construction usual in such 
 cases, and held that the i>!.iurcd warranted the answers to be true 
 only to the best of his knowledge and that an untrue statement 
 that would avoid the policy in such a case meant one designedly 
 untrue.' 
 
 In a proposal, as the application is styled in English eases, the 
 residence of the proposer was stated to be at a certain number upon 
 a certain street in an English city. In an action on the policy the 
 insured defended on the ground that this was a false answer ; that 
 the proposer actually lived in Ireland, and that it vitiated the 
 policy. The court held that as it appeared that the assured tilled 
 up the space after '-residence" in the proposal with the address 
 where he was then residing, and where he was going to reside for 
 the next three months, the answer was true ; for in the opinion of 
 the court " residence " in the proposal meant the place where the 
 proposer wus living or residing at the time of making the proposal, 
 and not where ho had been residing before, or where he was going 
 to reside afterwards. - 
 
 The English House of Lords, on an appeal, lias held that an 
 atiswer "no" by one of a lirm for the firm in a proposal for iire 
 insurance, to the question, " lias proponent over been a claimant 
 on a fire insurance company ? If so, state when and mime of 
 office," was not an untrue answer, upon the ground that another 
 member of the firm prior to his becoming a member had made 
 claims upon a tire insurance company." 
 
 In an old English case this rule was declared : A siiiipression 
 or false representation of facts, material to be known by the in- 
 surers, vitiates a policy of insuraiK't>, although it was an ans^ver to 
 a parol encpiiry and the policy is by the articles of the insurance 
 office to lie void on false answers being given to certain written 
 enquiries. And u[)on this the court held that where a party going 
 
 ■< t 
 
 ' Andors v. Supremo Loilge K. of If. (I.s>ii)), 51 \..I.[,. 17."i. 
 
 'GroKiinv. J.oiidon & MauchcsU'rlndus. Ass. Co. (1,S,S(!), oli [-.T. 701. 
 
 :• Diivie.s V. Xiitional F. & M. Ins. Co. of New Zealand (IHitlt, App. Ciis. IS.". 
 
446 
 
 INSURANCK LAW OF CANADA. 
 
 to insure Iilt life for two yoarri gavo false aDswors t<» vcrlial en- 
 quiries wliotiier she had etteetod similar ins'iranoe at other offices, 
 the policy wits thereby avoided.' 
 
 288. Recent American decisions as to warranties and 
 representations — Parol evidence is admissililc to explain a con- 
 tract of insurance or to show a waiver of its conditions, or to sliovv 
 that an instrument is not the contract of a given party.- 
 
 It has been held that oral promissory representations will not 
 be admittetl in the absence of fraud,'' hut it is otherwise where the 
 oral representation is of an existing fact.' 
 
 As to burden of proof, the prevailing rule is that burden of 
 proof of breach of warranty rests on the insurer as well as does the 
 burden of proof of a material misropresentatim, and that the dis- 
 tinction sought to be estalilished is not sound.' 
 
 The description of a statement as a warranty or a condition 
 does not necessarily determine it to be a warranty, if the ex- 
 planatioiis accompanying the term show that a strict warranty is 
 not intended ; as where it was also stated in the c(;ntract that 
 nothing but fraud or intentional misstatements should avoid the 
 policy and that payment would be contested only in case of fraud ;* 
 or where the word " warranted " is used in the application only 
 and in the [lolicy itself the statements are characterized as " repre- 
 sentations," ' or where it is stated in the contract that it shall be 
 void if obtained by any fraud, misrepresentation or concealment,'* 
 or where, though the contract state that the answers are war- 
 ranted and rei»resented to be correct, it also stated that the con- 
 tract should be void if the answers and statements were in any 
 material respect untrue or false or tended to deceive the insurer.'^ 
 
 It is not universally true that the materiality of a representa- 
 tion will be inferred from the fact that it was nuide in response to 
 a specific enquiry of the insurer. The purpose of the enquiry 
 must be considered to see whether the information is sought to 
 
 > Beach, 410. - Cooke on Life Ins. 13. 
 
 » Prudentiiil Co. v. .Etna Co., ^i Fed. Rep. 438 (1S85.) 
 
 * Idem, and see Mut. Ben. Co. v. Robertson, .59111. 123(1871.) See also sujtra 
 in. ' See citations in Clarice Oii Life In.s. § 14 p. 25 n. 2. 
 
 « Fitcli V. Am. Popular Co., oO N. Y. iin" (1875.) 
 
 7 Monlor v. Am. Co., Ill U. S. 335 (18H4.) 
 
 "Continental Co. v. Rogers, 119 III. 474(1887.) 
 
 » Schwarzbach v. Ohio Valley Protection Union, 25 W. Va. 022(1885.) and see 
 Campbell v. New England Mut. Co., 98 Mass. 38. 
 
WAKRANTIES, REPRESENTATIONS AND CONCEALMKNT, ETC. 
 
 447 
 
 ii'nl the insurer in fixing the tcrrns of tliu contract or witli a tlit- 
 foront object ; us where an uiuiuiry related merely to the payee nt 
 the insurance money, the Htatement in reply as to the relationshii) 
 of the payee wiia held immaterial.' 
 
 In arriving at the intention of the parties to an iiiflurance 
 contract, the court must look at their situation, the condition of 
 the thing insured, and what was said or doie at the time the 
 insurance was etiected. If the rei)resentations of the insured are 
 in writing, that is the evidence of what they are ; but if the appli- 
 cation and representation are verbal, oral proof is competent to 
 establish the same." 
 
 288a. New York rule of oonstruction. — The New York 
 Court of Appeals has in a very late ca.se dc lured this rule of con- 
 struction : Conditions in an insurance policy which affect the con- 
 tract and parties prior to the loss, including all statements and 
 representations preceding tlie contract, toceivu a fair construction, 
 according to the intention of the parties ; i'ut tliose conditions 
 w hich relate to matters after the loss, detiiiint; ,he mode of adjust- 
 ment and iecovery, must receive a more liberal construction in 
 favor of the insured.^ 
 
 Kven when the statements in the application are u. "lared to 
 be warranties, they will Jiot be regarded as such if cjualified by 
 other stipulations which afford a fair infcience that the parties 
 themselves did not so intend them. And in one rather recent 
 case the court construed the provision that " if any false repre- 
 sentation is made by the assured of ... or any over-valuation, 
 or any misrepresentation whatever, either in a written application 
 or otherwise, . . . this policy shall become void," when read 
 as a whole, to show conclusively that a wilful misrepresentation as 
 to the value of the property, or one made with such gross and 
 reckless carelessness as in law would be treateil as wilful, was in 
 the contemplation c 'the parties.* 
 
 A representation is clearly distinguishable from a warranty, 
 the former being a part of the proceedings which propose a con- 
 tract and the latter a part of the contract when completed. 
 
 > Vivar v. Supreme Lodge, etc., 20 AH). Kep. 3(5. (Supreme Court of \. F. 18H0), 
 referred to infrn § 288b. 
 
 ■' Hoose V. Prescott Ins. Co. of BoNton (1890,) 84 Mich. mt. 
 
 * McNally v. Ph(i!nix Ins. Co. of Brooklyn (1893.) 137 N. Y, :«1). 
 
 « Wheaton v. North British & Merc. Ins. Co. (1888,) 7« Cal, -ll.'i. 
 
 

 !i=: 
 
 « 
 
 448 
 
 INSURANCE LAW OF CANADA. 
 
 A ini.sroi»rosontati()ii rondcrrt tho coiitnu't void on tlio ground 
 of fraud; a non-coin|tliiinc'o with a wanMuty is an oxi»ivss breach 
 of the contract. A fraudulent misrepresentation will avoid the 
 contract, whether it is expressly so stipulated or not. Ke])rosen- 
 tations are ifchnrs the contract. 
 
 If a i)orK'v he issued to the a[»plicant without any answi'r to 
 the encjuiry as U) s'alue. there can he no hreach of warranty as to 
 value. 
 
 A statement of that which is necessarily, from its nature, mat- 
 ter of opinion is not strictly within tho term " warranty " as 
 applied to a contract of insurance.- 
 
 A statement of value in an application for insurance is not 
 effectual as an over-valuation to defeat liability unless it i< grossly 
 and designedly excessive.' 
 
 288b- Warranty and representation distinguished The 
 
 New York Court of Ai>peals, at'ter reviewing the diiferent parts of 
 an insurance contract from the application down to the policy gave 
 this as their conclusion : "The true construction of the ]>apers is, 
 that the policy is to be void only in case of intentional and fraudu- 
 lent misrepresentation or suppression of facts by the applicant, and 
 that although the term "warranty" is used, yet its legal effect is 
 80 moditied by the explanations and declarations by wliicli it is 
 accompanied that it imports no more than an assurance that the 
 statements are nnide honestly, in g()od faith, and are believed by 
 the aitplicant to be correct and true." 
 
 Under this view of the contrai't they held that it is necessary, 
 in order to sustain the defence based upi>u a breach of warranty, 
 to show not only that the statements were uiitnu' but that they 
 were known by the insured so to l)e, and that they and the alleged 
 omissions were made intentionally and with a fraudulent desire ; 
 and, to entitle the conniany to the non-suit asked, it was necessary 
 that this frauil should be so conclusively i)roved that there was no 
 (piestion for the jury.' 
 
 Upon the distinction between warranties and representations, 
 the rtuprone Court of Alabama has given its conclusions as follows : 
 "The 'iistinction between a warranty and a representation in 
 
 ' lU'iu'li j! :tsi(. -' Idi III, 
 
 ■■' HfdfonI V. Mut. Kiir liis. (',)., MS \\ ('. Q. U. .j:is. 
 
 ■• Kitch V. AiiuM'icm l'.)p;ilar Life liis. Co. (IS",".")), oil X. Y.. 557. 
 
WARRANTIES, RErRESENTATIONS AND CONCEALMENT, ETC, 
 
 449 
 
 insurance is frequently a ([uestion of difficulty, especially in litrht 
 of more recent decisions which recognise the suhject as one of 
 growing importance in its relations particularly to life insuratice. 
 As a general rule, it has been laid down that a warranty must he a 
 part and pan'cl of the contract of insuran(,'e, so as to appear, as it 
 were, upon the face of the policy itself, and is in the nature of a 
 condition precedent. It may he atfirmative of some fact or oidy 
 promissory. It must be strictly complied with, or literally ful- 
 tilled, before the assured is entitled to recover on the policy. It 
 need not be material to the risk, or whether material or not, its 
 falsity or untruth will bar the assured of any recovery on the con- 
 tract, because the warranty itself is an implied stii)ulation that the 
 thing warranted is material. 
 
 It further differs from the representation creating on the part 
 of the assured an abs<dute liability, whether made in good faith or 
 not. A representation ie not strictly speaking a part of the con- 
 tract of insurance, or of the essence of it, but rather something 
 collateral or [treliminary, and in the nature of an induce- 
 ment to it. A false representation, unlike a falsi' warranty, 
 will not operate to vitiate the contract or avoid the policy unless it 
 relates to a fact actually material, or clearly intended to be made 
 material by the agreement of the parties. It is sufHcieiitit repre- 
 sentations be substantially true. They need not be strictly or 
 literally so. A misre[)resentation renders the policy void on the 
 ground of fraud, while a non-compliance with a warranty operates 
 an express breach of the contract. The mere fact that a stati'nient 
 is referred to, or even inserted in the policy itself, so as to ajipear 
 oji its face, is not alone now considered as conclusive of its nature 
 as a warranty, although it was formerly considered otherwise. 
 
 Whether such statement shall be cixistrued as a warranty or a 
 representation depends '"ather upon the form of expression ust'd. 
 the apparent [turpose of the insertion, and its connection or re- 
 lation to other parts of the application and policy construed 
 together as a whole, wlu-re legally these papers constitute one 
 entire contract, as they most fre([uently do.' 
 
 The Alabama Supremo Court formulated these rules as to 
 construction of contracts of insurance bearing on the distinction 
 between warranty and representution : " It re(piires the clearest 
 
 «f| 
 
 111 
 
 ;■ 1 
 
 ' AlalmiiiH Oold Life In-. Cd. v. .lolinstoii (IX^l), m Ala. 407. 
 
 29 
 

 m 
 
 450 
 
 INSURANCE LAW OF CANADA. 
 
 and most unequivocal language to create a warranty ; and every 
 statement or engagement of the assured will be construed to be a 
 representation and not a warranty if it be at all doubtful in mean- 
 ing, or the contract contains contradictory provisions relating to 
 the subject, or be otherwise reasonably susceptible of such con- 
 struction. 
 
 The court, in other words, will lean against that construction 
 of the contract which will impose upon the assured the burden of a 
 warranty, and will neither create nor extend a warranty by construc- 
 tion. Even though a warranty, in name or form, be created by the 
 terms of the contract, its effects may be modified by other parts of the 
 policy or of the application, including the questions and answers, so 
 that the answers of the assured, so often merely categorical, will be 
 construed, not to be a warranty of immaterial facts stated in such 
 answers, but rather a warrat\ty of the assured's honest belief in 
 their truth or, in other words, that they were stated in good faith. 
 
 The strong inclinatitui of the courts is thus to make these 
 statements or answers binding only so far as they are material to 
 the risk, where this can be done without violence to the clear 
 intention of the parties expressed in unequivocal and unqualified 
 language to the contrary.'" 
 
 The Sui»ronie Court of the United States has declared these 
 rules upon this subject : — " Answer.? to (][uestions propounded by 
 the insurers in an application for insurance, unless they are clearly 
 shown by form of the contract to have been intended by both 
 parties to be warranties, to be strictly and literally complied with, 
 are to be construed as representations as to which substantial 
 truth, in everything material to the risk, is all that is required of 
 the applicant. 
 
 The misrepresentation or concealment by the assuretl ot any 
 material tact entitles the insurer to avoid the policy. But the 
 parties may, by their contract, make material a tact that would 
 otherwise be imnmterial, or nuike immaterial a fact that would 
 otherwise be material. Whether there is other insurance on the 
 same subject and whether such insurance has been applied for and 
 refused, are material facts, at least when statements regarding them 
 are required by the insurer as part ot the basis of the contract.' 
 Whore an answer ot the applicant to a direct question of the in- 
 
 ' AliilMiiim (Jold l.lfo Ilia. Co. v.,Iohii8ton (1S87), SO Ala. 407, clU'd supra, and see 
 itifm S ^H^<'. ^ Si'o nupra S 27l»ii. 
 
WARRANTIES, REPRESENTATIONS AND CONCEALMENT, ETC. 
 
 451 
 
 |any 
 the 
 
 )U1(1 
 )U1(1 
 
 tho 
 
 laiul 
 
 lem 
 
 lot.'' 
 
 in- 
 
 surers purports to be a complete answer to the question, any sub- 
 stantial misstatemetit or omission in the answer avoids policy is- 
 sued on the application. 
 
 But where, upon the face of the application, a question appears 
 to be not answered at all, or to be imperfectly answered, and the 
 insurers issue a policy without further enquiry, they waive the 
 want of Imperfection in the answer, and render the omission to 
 answer more fully immaterial. 
 
 These rules of construction were applied to a case where 
 the questions, "Has any application been made to tliis or any 
 other company for assurance on the life of the party ? If so, with 
 what result? What amounts are now assured on the life of the 
 party, and in what i-ompanios?" were answered by the applicant: 
 " Ten thousand dollars ; Equitable Life Assurance Society." It 
 appeared that a policy of that society was in fact the oidy other 
 existing insurance. 
 
 They held that the answers were not warranties, but repre- 
 sentations ; and that tlie issue of a policy vvithout further enquiry 
 was a waiver of the rights of the insurers t(t rcijuire further 
 answers as to the particulars mentioned in the ([uestions, and 
 estopped thcni to set up that the omission, though intentional, to 
 disclose unsuccessful applications for additional insurance, was 
 material and avoided the policy.' 
 
 2880. Rules declared by tbe West Virgiiiia Court of Appeals. 
 
 — The Coiirt of Appeals of West Virginia, in a well considered case, 
 has thus declared the rules as to answers to ((uestions, in the 
 application tor insurance : "The authorities all agree that if by the 
 contract and policy the uj)plicant warranted liis answers to be true 
 in all respects, then this removes their materiality from the con- 
 sideration of the jury or of the court, and if the answers are any ot 
 them untrue, though they be sucdi as the court or jury might be- 
 
 1 I'lKi'iiix Lifi- liiN. Co. V. Uaddiii (1SH7». ILII I'.S. 1h:i ; nnd see Herimrd v. I'liitcd 
 Life Ins. Ass'ii, iWN. Y. Suppl. (ISK.-)), 2:i:<, (15 N. Y. Si. Kep. (ISlto) »21 ; nnd Homo 
 Fr. Soc. V. lU'rry, 21 S. K. Kep. {X><i)',' CM. 
 
 See also: Penn. Mat. Life Ins. Co. v. Wiler (1884), KM) Ind. 1»2, us loefn-ct of in- 
 surer bointjrfontcnt witli partiiil answer and declnrationH nmde prior toappliciitioii — 
 Fidelity Mut. Life .\ss. v. Kitlilin (ISltl), 71 Ind. 72, as to eti'-tl of answers to medi- 
 cal examiner— Beach ■12(( -SpritiK V. Chautaui|iia Mnt. Life Ass'n. (ISt»I), II N.Y. 
 SuppI IHU, and Hrown v. .Metrop. Life Ins. Co. (1KS7), (W Mieli IttHl ; 7 N.Y. .Suppl. 
 .Wt); Mritlon v. Hoyal Areanuin, 1(1 N. .1. K(). 102 ; Vivar v. Supr. Lod^e Kni^'itN of 
 P>tliia.s, 20 All) Uep. !W ; Campliell v. New Knxland Mut. Co., W Mass. :W1, an to 
 fal.se answers in application and burden of proof. 
 
 6 
 
 iu 
 
 \i 
 
liNi 
 
 452 
 
 INSURANCE LAW OF CANADA. 
 
 lieve could not have prejudiced the insurer, nor in any degree 
 iniiuenced the insurer in entering into the contract or issuing the 
 policy, yet the insured in person, for whose henetit the policy was 
 taken, cannot recover upon it. 
 
 But in ascertaining whether the answers to questions put to 
 the applicant are warranties or representations, it should ho borne 
 in mind when a policy contains contradictory provisions, or is so 
 framed as to render it doubtful whether the parties intend that the 
 exact truth of the applicant's statements should be a condition 
 precedent to any binding contract, the construction which imi>08es 
 on the insured the obligations of a warranty should not be favored. 
 
 It may be regarded as settled that, in constructing a policy, 
 the courts lean in favor of the construction which makes a state- 
 ment of the insured a representation rather than a warranty and 
 when, taking the whole policy and papers referred to in it as a 
 part of it, together, it is doubtful whether the parties intended 
 that the statements or answers of the insured should be regarded 
 as representations or warranties, the court will construe them to 
 be representations and not warranties.' 
 
 When a faet is specially inquired about, by this specific iiuiuiry 
 the insurer shows that he regards this fact as material ; and a mis- 
 representation contained in an answer to such question avoids the 
 contract, though the court or jury may think the inquiry is !iot in 
 reality material, that is, that a true answer would probably have 
 prevented the policy from issuing, or, if issued, would have caused 
 the premium demanded to be increased. 
 
 There has been a considerable diversity of opinioji as to 
 what constitutes a misrepresentation which avoids a itolicy. Some 
 hold that, if the representation is materially untrue, it avoids the 
 policN", even when it is made in good faith and is the result of 
 
 ignorance. 
 
 But there are other cases in which it is held that a representa- 
 tion as to a material fact will not necessarily avoid a policy simply 
 because it is uiitri".% and that, in addition to its untrutli, its falsity 
 must be known to the insured.'' 
 
 Referring to the doctrine as to representations made bona fide 
 and those made where in contemplation of law they were made 
 maid Ji/le, the court said : " This doctrine has peculiar and special 
 
 Sue aupm § iiSSb. 
 
-T" ' '"il'fJH 
 
 WARRANTIES, REPRESENTATIONS AND CONCEALMENT, ETC. 
 
 453 
 
 fide 
 
 lull' 
 
 'ial 
 
 Application to policies of life insurance ; for it is obvious that most 
 of the facts set out, eapecially in the applications now generally 
 atta(!hed to the policy and expressly made a part of it, are facta 
 peculiarly within the knowledge of the insured, and whether he 
 says so or not must be regarded as stated on his own personal 
 knowledge, and as being by him intended to lie so understood by 
 the insurer. This being the case, if a part of this description is 
 untrue in point of fact, he is guilty of legal fraud, though he may 
 not have intended to deceive, and really did not act ynalo fide in 
 point ot fact. 
 
 But sometimes facts are stated by the insured whicli the 
 insur rB must, from the nature of tlie facts stated, have known were 
 not stated as facts absolutely true and within the personal know- 
 ledge of the insured. When the facts stated are of this de- 
 scription, on the principles we have laid down, the policy should 
 not be avoided merely because the statement turns out afterwards 
 to be in point of faet untrue, if the statement was made in perfect 
 good faith, and with the full belief when the statement was made 
 that it was true. 
 
 Of this character would be a statement in an application that 
 the insured was of " sound body. "' for, of course, the insurer must 
 haveunderstood such a statement as luade, not upon the personal 
 knowledge of the insured, but upon his belief from all the know- 
 ledge he had of his constitution. For, of course, men sometimes 
 believe thov are of "sound bodv" when in point of fact thev have 
 
 * t I • 
 
 some iuterind disease which in its character is fatal. When such a 
 statement as this is made in an application for a life policy, on the 
 principles we have laid down, the policy is not forfeited if the 
 statemetit turns out to l)e untrue if, when it was made, the insured 
 believed that he was of '•sound liodv" aixl had no suspicion 
 that he was the subject of an " intiTiuxl disease" fatal in its 
 character. 
 
 If, on the other hand, the insured in his application should 
 state, in answer to a (juestion, that he had not a serious ilhicss for 
 seven years, this statomoiit the insurer must have regarded as made 
 on his own personal knowledge, ami if in point ot fact it was 
 untrue, on the principles we have stated, it must forfeit the policy, 
 though he did not make the statement in point of ftn't mala fide, 
 that is, with a purpose ot deceiving, but only from thoughtlessness 
 
 i 
 
 !« 
 
i 
 
 im 
 
 ■1 
 
 
 
 1 H^' 
 
 ! if-.; 
 
 ill!- 
 
 r ■■' 
 
 454 
 
 INSURANCE LAW OF CANADA. 
 
 or forgetful 11688, or because he had forgotten that a serious illness 
 which he had had was within seven years," ' 
 
 " A misrepresentation of a fact made by the insured, whether 
 such misrepreaentation be an actual fraud or a legal fraud, will 
 avoid a policy ; but it there be an absence of all fraud, legal or 
 actual, in the misrepresentation of a fact, such misrepresentation 
 will not avoid a policy." 
 
 ' SchwarzLach v. Ohio Valley Prot. Union (1885), 25 W. Vn. 622. ^ //,. 
 See also United Brethren Mut. Aid Soc. v. O'HiiradrtSS), 120 I'lu St. 250 ; Baum- 
 gart V. .Modern Woodmen of America ( Wis. IHWM, 55 X. W. Rep. 71!{ ; Wright v. Mut. 
 Ben. Life Assii (IK'^T), i;» Hun. fU ; llermany v. Fid. Mut. Life Ass'n. (1H91), 151 Pa. 
 St. 17, as ti answers in application re^ardinK state of health— Brown v. Metrop. Life 
 Ins. Co. (1H87), t>5 Mich. 'Mi, for a delinition of "sound health"— Perine v. Grand 
 LodKe A.O.U. W. (1892), 51 Minn. 221 and Supreme Council A.L.IL v. Larmour(lS91), 
 81 Tex. 71, for representations as to family history -Meachum v. N. Y. Slate Mut. 
 Ben. Ass'n (18iM», 120 N. Y. 237, tirand Lsd^e A.O.U. W. v. Helchani, 115 111. :i(W and 
 Mut. Life Ins. Co. of .\e\v York v. Thompson (Ivy. 1893), 22 S. W. Hep. 87, for repre- 
 sentations as to habits. 
 
 See cases cited in Cooke on Life Ins. 29 as to evidence of health an<l iilrni 31 as to 
 meaning of " medical attendance," etc., also as to representations regarding same 
 see I'nited Brethren .Mut. Aid Soc. v. O'llara (18.s8i, 120 Pa. Sti e 2.50. cited above, 
 Phillips V. X. Y. Life Ins. Co. (1890)9 X.Y. Suppl. 83(1 and Cob v. Covenant Mut. 
 Ben. Ass'n (I88n, 153 .Mass. 17(). 
 
 Sea Standard Life & Ace. Ins. Co. v. Miirtin (Ind. 1893) 33 X.K. Bep. 105; Home 
 Mut. Life Ass'n v. Gillespie, 110 Pa. St. 84 ; Bancroft v. Home Ben. Ass'n (1890), 120 
 X'.V. 11 and Gotten v. Fid. & Cas. Co., 11 Fed. Hep. 50B, for representations as to 
 physical injuries. 
 
 See King v. PlKcnix Ass. Co. (1888), U5 Mass. 426, for representation as to 
 wooden houses near buikling insured— Chrisman v. State Ins. Co. (1888), KiOr. "283, 
 for answers to f|uestions regarding value, title, location, occupancy and encum- 
 brances, being held expre.s.s warranties— Hosford v. viermania Fire Ins. Co. (1888), 
 127 U.S. 39;), for warranty as to no smoking on premises -St. Paul F. & M. Ins. 
 Co. V. Xeideckcn (1889), (> Dak. 191, as to payment of premium note in case of con- 
 tract boing void from its inception owing to a miterial mis-statement, notwith- 
 standing the statute providing for a return of premium if the insurer never incurred 
 rtii.' liability {ride aupni § 19.) 
 
CHAPTER XI. 
 
 ADDITIONAL IXSLKAXCK. 
 
 2H9. (iKNKllAI. HKMMtKS ON AI)- 
 UlTIONAI- INSL'UANI i:. 
 
 201). liWilSl.ArillN ON ADlliriONAI, 
 INSUKANCK. 
 
 2!U. Condition ok AViMiAoi; co- 
 
 INSritANlK CI.At'Si:. 
 
 2!»2. CoNifitmiNT iNsriiANii: Ai'- 
 i>oiitionmi:ni' ok loss. 
 
 ■I'.y.i. W'lIAI'CHNSll riTKS, AND WIIAr 
 DOi;S NMT CONSTI TK I T, SI'KKICIK.N'I' 
 NOriCK >)K ADDKIIONM. I NSK li A NCH — 
 
 KAii.iTin; ro oivi; noihi-: hv inad- 
 
 Vi;i(TKN(l; - NOTIIK Nor WITHIN 
 
 UKAsoNAiii.i: riMK Di:ii:(Tivi: noiu i;. 
 2i(l. OriiKU iNsruANci: kkikctkd 
 
 HY AND IN KAVOlt OK TlUHn I'AHTIKS. 
 
 2!)-). Addktiipn/M. in<ki!aN'. k and 
 
 " SlIOll T TKHM" HISKS. 
 
 •3M. SrHSTKTlTION OK ANOTHKH 
 
 I'Ot.HV Wr'THOKT INCliDASINIl TIIK 
 
 AMOINT — KNO\Vl.l;D;iM OK AOKNT 
 
 AfTINi: KOIl Al.l. CoMI'ANrKS INTKH- 
 KSTKD. 
 
 2:17. Kkkkci' ok otiiki! iNsriiANtK 
 
 »l:iN(i VOID on VOIDAIU.K. 
 
 2!)S. KaI.SK KKI'IMiSKNTA'TlON AS TO 
 OTIIKK INSritANCi; HiMTND OK IN- 
 SUHANCi: .MONl;V KMlTIH TlllUlATS OK 
 CKIMINAI. I'KOSKlfTION 
 
 2!Kt. (ioODS I.N WAHKIIOKSi: Sl'llSH- 
 (^rlONT MAI! .VK INSrHANlK Nol' IIIil.D 
 COVKltlNti TIIK SAMI-: IIISK. 
 
 ;itiii. Hk( i:\r AMi:iri( AN division as 
 
 TO NOT UK Ol' ADDITIONAL I NSK li A NCK 
 TO ACKNT AND roM |>A N V — K A ILIliK OK 
 
 a(!1:nts to (ani kl, as instuki ti:d iiv 
 
 COMI'AN V. 
 
 ;{(ll. VAHim>- AMLIiHAN Dl.< ISloNS. 
 
 :<(I2. Hki'LNT \Mi;itlr\N DIVISION 
 
 ON IDMI'OIND ANI) Sl'LllKIl I'OI.U IKS 
 -DO. ON FLOATING I'Ol.U ll>- AND 
 I.IMI TATION OK LIAIilLITY. 
 
 289. General remarks on additional insurance. — The- gcn- 
 onil doctrine that a previous or 8ub.se([uent itisuranee without 
 notice, iiiider a policy requiring notice of sucli insurance upon 
 ])ain of forfeiture, discharges the insurer from any ol)]igation to 
 pay for a loss happening under such circumstances, is well settled 
 and universally recognized. That this should be the ettect of the 
 concealment or failure to give notice, as the ease may be, is not 
 only a part of the contract and obligatory upon that ground, but 
 the forfeiture is just and reasonable. The insurer can !iever know 
 the extent of his risk unless he knows everything that bears upon 
 it. Additional insurance no doubt increases the risk.' 
 
 Owners of dittorent interests in the same property, however, 
 
 • Sec Lymlnirner v. Stadiiconii Ins. Co,. S. C. Montreiil, II Stephens' Digest, 
 412, and see infrn <i .'WI. May, ;«M ; Bench, (H3. 
 
 m ■ 
 
 i| 
 
 
 !l! 
 

 456 
 
 INSURANCE LAW OF CANADA. 
 
 fj i' 
 
 m\ 
 
 and joint owners may respectively insure their interests without 
 risk of violating a provision against double insurance.' 
 
 The problem of two policies each containing a cond'tion 
 :againpt other insurance has given rise to a large number of con- 
 tradictory decisions in the United States. It is settled in Canada, 
 however, that the question is simply whether double insurance has 
 de facto existed ; and the fact that a policy is voidable at the dis- 
 .cretion of the insurer will not prevent its being invoked as a viola- 
 tion by the other insurer, as long as it has not been actually voided.* 
 
 Where the policy requires the company's consent in writing 
 to double insurance, the courts seem to have become more liberal 
 in favor of the assured than formerly, and there is a tendency in 
 the modern cases to hold a notice given to the company or its 
 •agent to which no objection is made, as estopping the company 
 from at'torwards insisting on a forfeiture of the policy for want of 
 their consent in writing.'' 
 
 In the absence of any special enquiry or condition as to addi- 
 tional insurance, there is no obligation on the insured to refer to 
 them.* 
 
 If the coadition read that other insurance on any house or 
 building insured must be notified without delay, insurance on 
 goods need not be so notified.'' 
 
 In the recent case of the North British it- Mercantile In.i. Co. v. 
 Tourville/' the Supreme Court of Canada, Taschereau, J., reniarked 
 that over-insn ranee must be put a stop to, as much as it is in the 
 power of the courts to do it. Therein lay one of the greatest 
 sources of fraud in connection with the insurance business. If the 
 assured is not in part a co-assurer with the com]tany, that is to 
 say, if the parties to the contract have not a common interest in 
 the preservation of the property insured, one of the most eflicient 
 safeguards against fraud and crime is removed. Any such eon- 
 tract where the assured might expect to make a protit by the 
 destruction of the property insured is, in law, tainted with iniinor- 
 ality. 
 
 The insured is not relieved from giving notice of a prior in- 
 
 " May, :MI5. 
 
 '^ See infra i a»7, .Tiicobs v. E(iuitable Co., li) U. C. Q. B. 25(), and seeGauthier 
 V. Wiiterloo Mut. Ins Co., « A. H. 2;n, infra i -Mi, and IJeacli, (145 
 
 ' May, :i"0, and see infra §2!)'!, and Privy Council, Lancashire Ins. Co. v. Chap- 
 man, 7 R. L. 47. 
 
 * Vi L. N. :Wl . » lb. ;12:<. « 25 S . C . R. 105. 
 
i& 
 
 II 
 
 "jm 
 
 ADDITIONAL INSURANCE. 
 
 457 
 
 !• M 
 
 .snrance by the fact that tlio first inrturaiu-e expires in u few days 
 and that he does not intend to renew it.' 
 
 It has also been decided that the mere admissioti by the in- 
 sured, in his sworn dechiration of loss, that there was fnrtlier insur- 
 ance, was not a sufficient proof of viohition of the condition 
 proliil)iting further insurance, and a second insurance in a company 
 of bad reputation and wliich ha<l no license was held no an in- 
 fraction of the condition. - 
 
 The 2:3nl section ot the Act 4 William IV, c. 3:^, respecting 
 double insurances on houses or buildings, does not apply to insur- 
 
 ance on goods. ' 
 
 290. Legislation on additional insurance — The Ontario In- 
 surance Act,' the Manitoba Fire Insurance Policy Act,' and the 
 British Columbia Fire Insurance Policy Act,'' contain statutory 
 conditions declaring fire policies null if there is [trior or subsefpient 
 insurance witliout the company's consent, unless the company has 
 had notice and has not dissented within two weeks from such 
 notice. 
 
 In practice, while double insurance is usually stipulated 
 against, the companies do not appear to insist upon the invalidity 
 of policies where double insurance is etiected without noti(!e but 
 without fraud. In these cases each comitany contriV)utes ratably.' 
 
 291. Condition of average -Co-insurance clause. — In certain 
 cases the companies recpiire the assured to maintain concurrent 
 insurance so that the total amount may ecpial seventy-five or eighty 
 per cent, as the tiase may l)e, of the actual cash value of the prop- 
 erty, with a condition that, if he do not, he shall himself be a 
 co-insurer for an amount sufficient to make up the difference and 
 in that capacity shall bear his proportion of any loss. 
 
 A case arising out of the co-insurance clause iti a policy of 
 fire insurance' was recently decided by the Ontario Court of Ap- 
 peals. The policy, the subject of the suit, was for §5,000, and 
 contained a 75 per cent, co-insurance claise, reading in the terms 
 
 ' i:n..\. 321. 
 
 2 Niitioiuil Ins. Co. V. RoHwseiui. l;tQ L.R. l2!)5 Q.B., hut see Uanisiiy Woolen 
 Cloth Manuf. Co. v. Mut. Fire Ins. Co., 11 r.r.g.B. 51tl, Meriitt v. \iiiKara Di.st. 
 Ins. Co., isir.c.g.B. .^^U 
 
 3Q.n. Chalniev •!& Mutual Fire Ins. Co., :l L.C..I. 2. 
 
 * 00 Vic. c. :!(1(0 )s. 1«S, ss. Sand II. ^ it.S.M. 181)1, e. .'i!), stut. con. 8. 
 
 « ISIW, c . 12, Stat. con. S and i) . ' C . C . L . C . 251(1 and 2.517 . 
 
 ffil, tit' 
 
 i ■ i 
 
 I /i 
 
 f -i 
 
 A w. 
 
 r 
 
I. 
 
 
 1 
 
 1 
 
 458 
 
 INSURANCE LAW OF CANADA. 
 
 u 
 
 
 1- 
 
 given below as the " co-iiisuraiico clause," in use in Quebec, and to 
 the same elfect in Ontario. The property insured was valued at 
 $iJ8,732, and the total insurance carried was $10,000. A tire 
 occurred, the loss by which was appraised at $3,226, and the 
 assured sought to recover the full pr()i)ortion of this loss, namely, 
 throe-tifths, or $1,935, under the policy in (juestioii. The company, 
 relying on the co-insurance clause, contended that the insured was 
 CO insurer to the extent of $11,549, the deficiency between the 
 insurance carried and 75 per cent, of the value of the property, 
 and that the comjiany's share of the entire loss was not in the pro- 
 portion of 0,000 to 10,000, but of 0,000 to 21,549, or $898 instead 
 of the $1,935 sought to be recovered. 
 
 The Court found that the contract was intended l»y both par- 
 ties to be one of co-insurance. 
 
 As the co-insurance clause, however, is not part of the form of 
 contract [)rescril)ed by the Ontario Insurance Act, and the jtolicy 
 in this case did not conform to the provision of the Act re(|uiring 
 tliat any omission from or addition to tbe prescril)ed i'l rm shall be 
 [•riiited in conspinious tyi»e and in in'c »;f (liiierent ('(.lour, tbe co- 
 insurance clause was iield to be ot no effect.' 
 
 In anotiier case the fourth variation from the Ontario statutory 
 conditions was, that in no case should the insured l)e entitled to 
 recover more than two-thirds the actual value ot any building or 
 contents or other property insured, nor in case of further insurance 
 by the insured or other party more than the ratable [)roportion of 
 two-thirds of the actual value without reference to the date of the 
 ditterent [)()licies and that any general policy on diflerent prop- 
 erties should be treated as a s[>ecial policy on each property for 
 the whole amount thereby insured. The insurance was $1000 on 
 barn and stables, valued at $1,200 and $900 on contents valued at 
 $3,000. I'er Cameron, C. J., and Rose, .1., that as to the latter 
 part of tin; condition referring to further insurance by the insured 
 or other party, it was unjust and unreasonable, but as to the 
 former part thereof, as to the payment of not more than two-thirds 
 of the value of the pro[»ert insured (which meant at the time of 
 loss) it wasjustand reasonable.-' 
 
 In a recent American case ' the court decided that the clause 
 
 ' Wiiiiless V. Lancashire Ins. Co., 2;« A. K. 227. (iO Vic. c. .30(0) 8. 160. 
 
 ■-(Jriiluini V. Oat. Mut. lux. Co., H O.R., :).58. 
 
 •' I'ool V, .Mil. Meclj. Ins. Co., (!5 N. VV. Rep. 5J (1895). 
 
' '1 M 
 
 for 
 ^0 oil 
 ►oil at 
 hitter 
 Isiircd 
 |o the 
 thirds 
 jnc ot 
 
 jluuse 
 
 ADDITIONAL INSURANCE, 
 
 459 
 
 providing against other insurance without the consent of the com- 
 pany had been waived by attaching to the policy the 80 per cont, 
 co-insurance chiuse. 
 
 The •' Co-insurance clause" appHed in the city of Montreal 
 and adjoining municipalities, and also in use in Ontario, reads as 
 follows : 
 
 "It is a part of the consideration of this policy, and the basis 
 upon which the premium is flxed, that the assured shall maintain 
 insurance on each item of prop! '-ty insured by this policy, of not 
 loss than eighty per cent, ot the ictual cash value thereof, ami that, 
 tailing to do so, the assured nlsall be a co-insurer to the extent of 
 such dcticit and in that capacity shall bear his, her, or their propor- 
 tion of any loss.'' 
 
 '' 'Phis clause does not affect the settlement of a loss : — 
 
 1. When the property insured is totally destroyed, the full 
 amount ol'insurance is paitl ujton proof of such total loss ; 
 
 2. When the property is insured for not less than eight}' per 
 cent, ot its actual cash value. 
 
 IJut the clause does atlect the settlement of a loss in the event 
 of the property being only partially destroyed with insurance less 
 than 80 per cent, of its actual cash vahu'."' 
 
 292. Concurrent insurance— Apportionment of loss. — In a 
 
 recent Ontario casu plaintiff had insured his building against fire 
 in two diflen-nt coiniJanies in separate amounts for the front and 
 rear iiortions, and the whole building, without division, in a third 
 company. Fire took place damaging both front and rear, nearly 
 all the Injury being done to the rear. 
 
 It was decided that the proper method of ascertaining the 
 relative amounts payable by the iliflerent companies was to add 
 the amounts of all the policies together without reference to the 
 division of the risk, and that each company was liable for its 
 relative i>roportion to the whole amount insured.' 
 
 The same (juestion was dealt v/ith quite recently in the United 
 States in a case where the policy providi'd that " this company 
 shall not be liable uiuler this policy for a greater proportion of any 
 loss on the described property than the amount hereby insured 
 shall bear to the whole insurance." The plaintiff ha<l other in- 
 
 McCauitliiiKl V. QiU'bec Kire Inn. Co. ct al., 2."i O.K. IWO, 
 
iwf 
 
 iirv.,L, 
 
 460 
 
 INSURANCE LAW OF CANADA. 
 
 'If 
 
 I- 1 
 
 surance in tho Kiioxville Fire Insiiranco Company, which was in 
 all respects concurrent with defumlant's policy, and also a policy in 
 the Phoenix Insurance Company for $8,000, which latter policy 
 contained an eighty-per cent, co-insurance (clause. The value of 
 the property damaged hy tire was $10,000. The damage occasion- 
 ed by the tire was $2,200. The total insurance carried hy plain- 
 titt" was $5,000. 
 
 The court was of opinion that the loss should he a|»portioned 
 amongst the companies as follows : The I'hcenix Company con- 
 tracted to pay three-eighths of the loss, provided $8,000 insurance 
 was obtained, but as the plaintift secured but $5,000, the total in- 
 stirance the Phtenix assumed was such proportion to the $2,000 
 taken by the defendant and the Knoxville Company as $3,000 (the 
 sum the Plxenix originally agreed to take), hears to $5,000, the 
 amount plaintiff agreed to place with other companies. The total 
 amount of insurance applicable to the loss, therefore, was $3,200, 
 of which the Phoenix carried three-eighths, or $1,200, and each of 
 the other companies five-sixteenths, or $1,000. The actual loss 
 should be apportioned among the three companies : The Pho'iiix 
 three-eighths, or $825.00, and the defendant and the Knoxville 
 Company $687.50 each.' 
 
 As to contribution in cases of concurrent insurance, see also 
 Minneapolis, St. P. & S. S. M. Ry. Co. v. Home Ins. Co. 25 Ins. 
 L. J. 252, and Rickei'son v. Gtnnan-American Ins. Co. (N. Y. S. 
 C, App. Div), 89 X. Y. Suppl. (1896), 547. 
 
 In .Etna Ins. Co. v. McLeod etal. 25 Ins. L. J., 609 (1896), 
 it was decided that in order to share in benefit of limiting clai.'ses 
 \n other policies the company must plead specialh'. 
 
 293. What constitutes, and what does not constitute, suffi- 
 cient notice of additional insurance— Failure to give notice by 
 inadvertence— Notice not within reasonable time -Defective 
 notice. — A condition of a policy issued by a fire insurance com- 
 pany was, that notice of any otVier insurance on the propert\' in- 
 sured should be given to the company, and that the same should be 
 endorsed on the policy, or otherwise acknowledged and approved 
 by them in writing, else the policy' to cease. The insured subse- 
 quently effected another insurance on the property, and forwarded 
 a written notice of the fact to the secretary of the company, who 
 
 Armour et ul. v. Reading Fire In.s. Co., 2 Miss. App. Rep. (18!Ki), 1402. 
 
 
< Ti 
 
 fi 
 
 ADDITIONAL INSURANCE. 
 
 461 
 
 lis. 
 
 S. 
 
 ive 
 
 >iii- 
 in- 
 be 
 -ed 
 )se- 
 led 
 ^lio 
 
 replied the next day, " I luivo received your notice ^t' additional 
 insurance." The court considered that the insured had done 
 enough, and that there was no breach of the condition, because 
 the insurance company must have apprehended that plaiiititl wouUl 
 understand it so, according to all fair interpretation.' 
 
 It was held in one Quebec case that the condition usually 
 endorsed on policies, respecting double insurance, will be held to be 
 waived on the part ot" the company if their agent, on being iiotitii'd 
 of such doiil)le insurance after the fire, makes no specitic olijcction 
 to the claim of the assured on that ground.- But this decision 
 was reversed in Ajipeal,' and the Sui)remc Court of Canada have 
 decided otherwise.' 
 
 In another Quebec case, decided in 1857, where a policy of 
 insurance ffranted permission in the bodv thereof to insure t-lse- 
 where on giving notice to that end to the direc*^ors of tb.c com- 
 pany, in order that the second insurance might be endorsed on the 
 policy, and rcnpiired by the by-laws of the company printed on the 
 back of the policy that such notice be given and such second insur- 
 ance endorsed on the policy a peine de nnlUte, it was iievefthelcss 
 held, that a notice of such second insurance given after the tire, 
 and as a conseciueiice not endorsed on the policy, was sufficient, 
 the majority of the court going so far as to hold that the strict 
 good faith incund^ent on the insurer was incompatible with such a 
 plea. It is to be noted, however, that it ajipears from the dissent- 
 ing opinion of Day, J., in that case that the directors knew of the 
 second insurance before the tire ; and the decision may perhaps be 
 Justiiied on the ground of their accpiiescence.' 
 
 A [lolicy of insuranci' against loss liy tire contained the follow- 
 ing condition : "Incase of subsequent insurance on any interest 
 in property assured by this company (whether the interest assured 
 be the same as that assured by the company or not) notit-c thereof 
 must be given in writing at once, and such subsequent assurance 
 endorsed on the policy granted by this company, or otherwise 
 acknowledged in writing ; in default whereof such policy shall 
 thenceforth cease and be of no effect." The insured effected sub- 
 sequent insurance and verbally notiHed the agent, but there was 
 
462 
 
 INSURANCE LAW OF CANADA. 
 
 I 
 
 ill 11 
 
 u 
 
 ill 
 
 no eiidorsoineiit made on tlio policy, nor any acknowledgment in 
 writing by the company. A loss having occurred, the damage 
 was adjusted by the inspector of the company, and neither he nor 
 the agent made any objection to the loss on the ground of non- 
 compliance with the above condition. Iv a suit to recover the 
 amount of the policy, the company pleaded breach of the condi- 
 tion, in reijly to which the plaintift set up the waiver of the condi- 
 tion, and contended that, by the act of the agent and inspector, the 
 company were estopped from setting it up. 
 
 The court considered, in opposition to the view of the court 
 below, that the insured not having complied with the condition, 
 the policy ceased and became of no eflect on the subsecpient insur- 
 ance being effected, and that neither the agent nor ihc uispector 
 had power to waive a compliance with its terms.' 
 
 A condition in a policy providing for a forfeiture of the policy 
 in case of additional insurance, without the written consent of the 
 company endorsed upon the policy, may be waived, either by 
 parol agreement or by the conduct of the company ; and silence 
 for an unreasonable time upon the part of the company after 
 knowledge or notice of the Ijreach of the condition will constitute 
 such conduct. - 
 
 In another case where the insured was required on pain of 
 forfeiture to notify the company of any other insurance, the com- 
 pany, after the tire and after a knowleilge that other insurance 
 had been effected, sup{»lied forms for nuiking claim and otherwise 
 treated the contract as binding on it. This was held to be a 
 waiver of all objections based on the condition requiring notice of 
 other insurance. 
 
 The i)laintiff, who was insured against tire with the defend- 
 ants for l$l,000, effected a change of mortgages on the insured 
 property. The new mortgagees refused to accept the detendants' 
 policy, and insured the property for the same amount with another 
 company, notifying the plaintiff of the tact by letter. The plain- 
 tiff showed the letter to the defendants' secretary-treasurer, asking 
 him to bring the matter bet'ore the board, and was then informed 
 
 ' Supreme Court of Canadii, Western An-i. Co. v. DouH, US C. U. IKi, imd see 
 deeisioiis in i;{ L. N. 325, and iii/rn eliup. XIII i.s to waiver by Huent of ...ly condi- 
 tion of the policy, and see McKay v. (ilaHHow /c London Ins. Co., ;12 L. C. J. 125 
 supra S S 271t and 2H2. 
 
 ' Plucnix Iii8. Co. V, Spiei-H (1S8H), 87 Ky. 28,-). 
 
 ' Foiiderie de Joliet v. Stndacona Ins. Co., L. N. 277. 
 
li 
 
 ;i 
 
 ADDITIONAL INSURANCE. 
 
 463 
 
 •Ii 
 
 by him that it wi-.-ld ho all right and that there was nothing 
 further to do. Subsequently the plaintiff paid an asseKsment on 
 defc'nda!)ts' policy, which accrued after the notification ol' the 
 double insurance, and whicli was received by defendants and en- 
 tered in their books. It did not appear that this payment was on 
 account of losses incurred liy defendants previous to the double 
 insurance. The plaintiff's property was destroyed by fire the day 
 the "Ontario Insurance Act, 1877," caiue into force. 
 
 The decision was that the R.S.O. (1877) c. 161, in force at the 
 time insurance was effected, ajiplied to the policy. 
 
 Also, that the showing of the letter to the secretary- 
 treasurer was not a notification in writing as recpiired by R. S. O. 
 (1877), c. 161, 8. 40. 
 
 But the court decided that the policy being voidable at the 
 defendants' option, the receipt and entry in their books of the as- 
 sessment after the secretary-treasurer was aware of the double 
 insurance, operated as an estoppel tipon them.' 
 
 In an action to recover the amount of a fire policy, the de- 
 fendants, being a mutual society, plea«led the statute which voids 
 an insurance contract where there has been another insurance 
 ettected without their consent, and also a special condition of the 
 policy to the same effect. 
 
 The court said that a variety of circumstances had been ad- 
 verted to, tending to show a knowledge by the defendants of the 
 existence of another contract. That, however, did not ajijicar 
 under any reasoiuible view of the law to be enough. There must 
 be a consent. The words of the statute were : '' Unless the double 
 insurance sub,-..MS with the consent of tlu' directors signified by 
 cndorsv-ment on the policy, signed by the manager or the secretary, 
 or other officer authorized to do so, or otherwise acknowledged in 
 writing." This was not satistied by evidence of mere knowledge 
 on the [tart of the insurers ot otluT contracts.-' 
 
 One Alazurette (reprcsi'iited by his assignee, the apiu'lJant) 
 ettected an insurance on his slock with the respondents, antl in the 
 policy there was a condition that insurance elsewhere would make 
 the policy void, unless the company received notice of such subse- 
 (pient insurance. 
 
 ' Mcliityr." V. KnM WilliiiniH Mut Fire Ins. Co., ISO.H. "It ; see Klein v. Union 
 Fire InH Co., :tO.I{ 2:U ; Cocliljiini v Hrltisli Am. Ass. Co , IDO.H. 245. 
 ■J Diislin V, IIociii'liiKii Mulual Kiri- Ins, Co., S.C. Montreal, 18H0, 4 L.N. 295. 
 

 464 
 
 INSURANCE LAW OF CANADA, 
 
 'i 
 
 
 ,M->- 
 
 Maznrotte failed In' some inadvertence to give notice of an 
 insurance effected subseijuentb^ in the Commercial Union Assur- 
 ance Company. The court decided that he could not recover on 
 the policy J 
 
 To an action on a fire policy in a mutual insurance company, 
 the defendant set up as a defence the 8th Ontario statutory condi- 
 tion, that the company were not to be liable for any loss " if any 
 subsequent insurance be effected in any other company uriless and 
 until the company assents thereto by writing, signed by a duly au- 
 tliorized agent." By 44 Vict. c. 20, sec. 28 (Out.) the Fire Insur- 
 ance I'olicy Act is made applicable to mutual fire companies,- 
 except where the provisions of the Mutual Act are inconsistent 
 with, or supplementary, or in addition thereto. Section 39 of the 
 Mutual Act enacts in substance that, if a double insurance subsists 
 in defendants' company and another company, the defendants' 
 policy should be void, unless such double insurance subsists with 
 the directors' assent endorsed on the policy, signed by the secre- 
 tary, etc., or otherwise acknowledged in writing, and section 40, 
 that whenever the company I'eceive notification in writing oi' an 
 additional sum being assessed on the same property in another 
 company, the same shall be deemed assented to unless the com- 
 pany within two weeks after the receipt ot such notice signify 
 their dissent in writing. 
 
 The defendants" policy was effected on the 3 Ist July, 1884. 
 On 4th January, 1886, the plaintiff" effected a further insurance in 
 ant)ther company for $1,000. On 8th March, 1886, the plaintiff 
 wrote defendants : " I hereby notify you that I have put a second 
 insurance on my itock and farm implemetits." On 10th March 
 the defendants replied informing jilaintiff that lie had not "given 
 the number of the policy or the amount of the insurance, or the 
 name of the company." The plaintiff did not reply to this, be- 
 cause, as he said, he was away from home. Tiie loss occurred on 
 the 16th March. The jury found that the plaintiff had not within 
 a reasonable time after effecting the further insurance notified the 
 defendants, but that the notice was reasonably sufficient as far a? 
 he knew. 
 
 It was decided that under section 39 the insurance was void, 
 
 1 Beausololl v. Can. Mut, t'ire Ins. Co., I L.N. 4,inui see Creet v, CltieenH Ins. '"o. 
 and do. v. Uoval Ins. Co., 5 A.K. 5WI. 
 
 2 Set- si(?)*Y» S 217. 
 
r 
 
 ADDITIONAL INSURANCE. 
 
 465 
 
 and that, under the circumstances, there could be no implied assent 
 under section 40 ; and further, that the notice was not sufHcient. 
 I'er Gault, J,, the insurance was also avoided under the 8th 
 statutory condition, and if section 40 could be held to be supple- 
 mentary thereto, the plaintitt, by reason of the defective notice, did 
 not come within itJ 
 
 291. Other insurance effected by and in favor of third 
 parties. — In Traders'' Ins. Co. v. Roberts - it was held that, as 
 as the mortgagor had no power to affect the mortgagee's rights by 
 a release, he could not do so by a breach of the condition regarding 
 other insurance, and the mortgagee could therefore recover ; but 
 the principle of this case was disapproved in Grosvenor v. Atlantic 
 F. I. Co. of Brooklyn., m the N". Y. Court of Appeals,'' and in the 
 ease of Tillon v. Kingston M. I. Co.* it was held, that the mort- 
 gagee could not recover, it the mortgagor break the condition in 
 question. 
 
 The majority of the Court of Appeals, Quebec, followed 
 Traders' T. Co. v. Roberts, and Tillon v. Kingston 31. I. Co., in 
 Black V. National Ins, Co. and Harris v. National Ins. Go.'' 
 
 It has been held in Quebec, however, that the non-disclosure 
 of existing insurances, in violation of the conditions of the policy, 
 is a cause of nullity, even when the undisclosed insurance was 
 effected by a third person, if the insured had knowledge of it, and 
 he will be assumed to have knowledge of it where his deed bound 
 him to insure in favor of his vendor, or in default, to pay pre- 
 miums." 
 
 It has also been said, that a mortgage creditor insuring is not 
 bound to declare other insurances save his own, although he is 
 aware of insurance ct)ntracts made by the mortgagor,' and tlie 
 same principle applies to insurances by former owners." 
 
 A policy of insurance issued by a mutual fire insurance com- 
 
 lu. 
 
 1 Gnihftm v. London Mut. Fin- Ins. Co. lU O.H. \\V>. 
 
 ■i Rfforred to in VA L. N. 204, :)25. 
 
 ' M, \,. R., 1H.")8. The Grosvenor case wiis approved by the .Supreme Court of 
 Illinois in IS7I) ; Illinois Mut. I-'. I. Co. v. Fix, .") Am. Rep. 
 ' * Sold. 10"). ••• Cited stiprn S lOH. 
 
 " Miiekivy v. Olivsgow and London Ins. Co. M. L. R. 4 S. 124. referre<l to supin 
 SS 270. 2K2 and 2!);t ; and see I'icard v. British Am. Ass. Co. M. L. R. 2 .S. C. 117, 14, R. L. 
 i;t(i, foretleet of further insaranee l)y a hypothecary crecUtor with the IcnowledKe of 
 the assured. 
 
 " IM L. N. ;)24, H2."i. " lilim. 
 
 80 
 
 m 
 
466 
 
 INSURANCE LAW OF CANADA. 
 
 liljii 
 
 5.1. .■! S 
 
 pany was heM void under sect. 30 of chap. G8 C. S. L. C. where a 
 second insurance had been taken upon the same property for the 
 l)enetit of the mortgage creditor (of which the premiums were paid 
 by the owner) without notice to company issuing first policy.' 
 
 295. Additional insurance and "short term" risks. — A 
 
 person ett'ectcd an insurance against tire for one montli, tlie insur- 
 ance l)cing subject to the conditions of the tire insurance policies 
 of the company. lie asked for a jiolicy, but was told it was not 
 customary to issue policies for short dates. Among the conditions 
 of the fire policies of the company was one requiring notice of any 
 other insurance effected on tlie property and endorsation of sucli 
 insurance on the policy. The insured failed to give such notice. 
 
 The court decided, that the non-delivery of a policy to the in- 
 sured was a waiver on the part of the company of the conditions 
 cited. -' 
 
 In the same case it was decided, that where an insurance is 
 effected under a ''short risk receipt,'" and without a policy, notice 
 of a second insurance given after the lire only, but in time to have 
 both companies contribute ratably, is sufficient.'* 
 
 In anotlier case the plaintiff, desiritig to effect further insur- 
 ance for two montlis on certain machinery, apiilied to defendants" 
 company through one S., their agent at ])., authorized to receive 
 applications, accept premiums and issue interim receipts, valid oidy 
 for thirty days. He informed S. that there were other insurances 
 on tlie property, but not knowing the amount that there was in 
 the G(>re Mutual rei|ucstcd him to ascertain it, and signed the ap- 
 [ilication partly in blank, [)aid the pri'miuiu and ol)tained an 
 interim receipt, valid only for thirty days. S. failed to do what 
 he itromised to do, and what plaintiff" had entrusted him to do, 
 and forwarded tfie apidication to the head office at T.. making no 
 mention of the insurance in the Gore Mutual. Tlu' company ac- 
 cepted the risk and in accordance with their ja'actice, where the 
 risk extended oidy over a short period, instead of a formal fiolicy, 
 they issued a certificate, which stated that the plaintiff' was in- 
 sured subject to all the conditions of the corapany"s policies, of 
 which he admitted cognizance, and that in the event of loss it 
 
 ' niais V. .Siiinsleiul luid Hlu'rlirooke Mutual Fire Ins. Co. 1.") 15. L. (H) S. ('. iHSd. 
 
 ■J g.l5. LiilU'Ur V. Cili/i-ns In.s. Co. 1 L.N. 518, L'2 y.C.J. 247. 
 
 ■' Idem. See al.so sui)r(i chai). V., for othor canes of sliort torm iri.suranceN. 
 
ADDITIONAL INSURANCE. 
 
 467 
 
 would be replaced by a policy. The macliinery was sul»sequeiitly 
 (lestroyed by fire after tlie tliirty days, but within the two months, 
 and the policy was thereupon issued, endorsed with the ordinary 
 conditions, one of which was that notices of all previous insurances 
 should be given to the company and endorsed on the policy, or 
 otherwise acknowledged by them in writing, or the policy should 
 be of no eflect and another was, that all notices for any purposes 
 must be in writing. The insurance in the Gore Mutual was not 
 endorsed on the policy. 
 
 In view of these facts the ct)urt considered that, as the appli- 
 cation in writing did not contain a full and truthtul statement of 
 previous insurances, the verbal notice to the agent of the existing 
 policy in the Gore Mutual without stating the amount was inop- 
 erative to bind the company ; the plaintiff was not entitled to 
 have the policy reformed by the endorsement ot the Gore Mutual 
 policy thereon, and could not recover.' 
 
 296- Substll .vion of another policy without increasing 
 the amount— Knowledge of agent acting for all the companies 
 
 interested.— Where the appellants sued upon a policy of insurance 
 made by the respondents on the 28th April, 1877 : On the face of 
 the policy it appeared that there was " further insurance, ^8,000," 
 and the policy had endorsed \i[)on it the following condition, being 
 statutory condition Xo. 8 R. S. O. c. 102: "The company is not 
 liable for loss if there is any prior insurance in any other company, 
 unless the company's assent thereto appears herein or is endorsed 
 hereon, nor if any subsefjuent iusurai\ce is effected, in any other 
 company, unless and until the company assent thereto by writing 
 signed by a duly authorized agent." Among the insurances, which 
 formed a portion of the " further insurance" for $8,000 mentioned 
 in the policy, was one for §2,000 in the Western Fnsurance Com- 
 pany, which appellant allowed to expire, substituting a policy for 
 tlie same amo'"\t in the Queen Insurance Company, without 
 having obtained the consent of, or notified the respondents. 
 
 It was decided, reversing the judgment of the court l)elow, 
 that the condition as to sul)se([Ucnt insurance must be construed to 
 point to further insurance beyond the amount allowed by the 
 policy, and iu>t to a [lolicy substituted for one ot like amount 
 to lapse, luid therefore the [lolicy sued upon was not avoided by 
 
 ' Supreme Ct. of Canada, KilUiivctoii v, l'ri)\ incial lu.s. I'o., ;i S.C.R. 1X2, 
 
 ■f" 
 
 11 
 
!i!:V^ 
 
 468 
 
 INSURANCE LAW OF CANADA. 
 
 W: 
 
 
 11 
 
 
 ^Bipp 
 
 the noii-communicatioii of the $2,000 insurance in the Queen In- 
 surance Company.' 
 
 In another case, the plaintiff', being tlie owner of a quantity of 
 railway ties and lumber, effected insurance thereon with three 
 companies to the amount of $4,000 and subsequently with the 
 knowledge and through the agency of the person acting on behalf 
 of the several companies, effected an additional insurance of $1,200 
 on the same property in the " Fire Assurance Association." He 
 asked the plaintiff for the interim receipt of that company which 
 he gave up accordingly and he substituted one in the Gore Dis- 
 trict Company for it, he being agent ror that company also, but 
 omitted to give any notice or make any eiitry as to the substitu- 
 tion of the Gore Insurance for that of the " Fire Association." In 
 an action to recover the amount of the insurances, after a destruc- 
 tion of the property by fire : 
 
 In the opinion of the court this was not such an omission on 
 the part of the plaintiff as invalidated the policies.'^ 
 
 The plaintiff, who was insured in the defendants' company 
 under a policy containing a condition that the " company is not 
 liable if any subsequent insurance is effected in any other company, 
 unless and until the company assent thereto by writing — signed by 
 a duly authorised agent," effected an insurance with the Mercantile 
 Ins. Company which was void at their option on account of a 
 similar condition, tlie policy with the defendant not having ex- 
 pired as a matter of fact, though the plaintiff was led by the agent 
 of the other company to believe it had. It was decided, as in the 
 Queen's Bench,' that the plaintiff could not recover, for the in- 
 surance in tlie Mercantile Company, being not void, but only 
 void.ible, was a subsequent insurance within the meaning of the 
 condition.' 
 
 And ii was also decided, following Parso7is v. The SlandarJ 
 Insurance Company,'' \\\i\i a change in the compaiiy in which another 
 insurance has been effected, not increasing the amount insured, did 
 not avoid the policy." 
 
 1 Supreme Court of Ciiuadii, Parsons v. the Standurd Fire Ins. Co., .5 S. C. R, 233, 
 Bee also Pacaud v. the Monarch Ins. Co., Vl C. .1. 2HI and see 13 L. N. 331. 
 
 '^ Moore V. Citizen's Fire Ins. Co., 11 A.U., 582, following Parsons v. Standard 
 Ins. Co., 43 Q.U. tlt»3, 1 A.R., 3it!, 5 S. C. U. 2;«. i It Q. U. tlK). 
 
 * Gauthier v. Waterloo Mut. Ins. Co., (! A. It. 231, and see ,ti/;jiY( § 281t. 
 
 '■ isujim, '• LowHon v, Canada Fanners' .Mut Fire Ins. Co., (i .\.U. 512, 
 
crai 
 
 ■•TTrri 
 
 1 
 
 ADDITIONAL INSUKAXCE. 
 
 469 
 
 297. Effect of other insurance being void or voidable — 
 
 The validity of the clause inserted in some polieies providing 
 against otlier insurances, whether valid or invalid, has heen ques- 
 tioned in Xi'W llaniitshire ; on the otlier hand, its validity was not 
 questioned, but rather admitted, in Maine.' And in a very recent 
 Texas case, a policy providing that it should he void it' the insured 
 had, or siiould thereafter procure, " any other insurance, whether 
 valid or not," was avoided by afterwards procuring another policy, 
 which, by reason of a sinular clause therein, was void aiul never 
 attached, - 
 
 It has been decided in Ontario, in accordance with what has 
 been said supra § 289, that a second insurance may be voidable by 
 second insurers and 3'et be a good and sufHcient insurance to set 
 aside a first insurance, being unnotified to the Hrst insurers, con- 
 trary to the conditions of their policy.^ 
 
 298. False representation as to other insurance— Refund 
 of insurance money under threats of criminal prosecution.^ 
 
 In a recent New Brunswick case the policy warranted that there 
 was no other insurance on the house, and by one of the conditions 
 of the policy, if there was any other insurance, the defendants were 
 not liable. There was a previous insurance on the house in an- 
 other insurance company at the time the plaintiff insured with the 
 defendants, the amount of which he received on the burning of 
 Ills house, and the defendants soon afterwards paid him the 
 amount insured by them, he having, in an affidavit in his proof of 
 loss, stated that there was no otlier insurance on the house than 
 the amount insured by them. 
 
 Soon after this, the defendants having heard of the previous 
 insurance, claimed a return of the money paid him, and he re- 
 funded it, but afterwards brought an action in the county court to 
 recover it, on the ground that he paid it under threat of a criminal 
 prosecution. He swore on the trial that before he rofuntled the 
 money the defendants" agent threatened to prosecute him for per- 
 jury unless he did so. He denied any knowledge of the statement 
 in the policy that there was no previous insurance on the house, 
 
 ' See 13 L. N. 325. 
 
 -' Wilson ei;al. v. A\U\a. Ins. Co. (Texas C. C. A.), :i3 S. W. Hep. (ISIKI), 10S,->, and 
 see nupra i 281). 
 
 •■> .Tiicobs V. K.1U liable Ins. Co , 10 U. C. Q. B. 2.50, ami see also 13 L. X. 325. But 
 see also .Sweeting et al. v. Mutual Kire Ins. Co., in Hartford County (Md. C. A.», 31 
 Atl. Rep. (IWMt), 82(1, as to validity of snbseciuent insurance beinjj; held necessary. 
 
 
 m 
 
 I 
 
 
470 
 
 INSURANCE LAW OP CANADA. 
 
 
 and stated that, if there was suoli a stati'inoiit in tho proof of loss 
 which ho signed after the tire, it nnist liave l>een added after he 
 had signed the paper. lie was contradictotl ])v tlie defendants' 
 witnesses in both these statements, and also in his statement that 
 ho would be arrested on a capias if he would not pay, the de- 
 tenchnits' agent, to whom the money was paid, denying tliat there 
 was any threat of a criminal prosecution, but that he told the 
 plaintiff that if the money was not returned he would be arrested 
 on a civil process by the sherift's officer, who was present. There 
 was evidence that criminal proceedings were spoken of when the 
 parties met for the purpose of settling, but it tended to sliow that 
 it was a statement by the defendants, made after the plaintiff had 
 agreed to pay, that they could prosecute the plaintiff" for perjury, 
 and not a threat to liimself that they would do so if the money 
 was not refunded. 
 
 The judge directed the jury that, in his opinion, the evidence 
 was insufficient to show that the money was repaid by the plain- 
 tiff under extortion or undue pressure ; but he left it to them to 
 find whether it was so extorted from him. stating his opinion that 
 the plaintiffs evidence on the point was completely negatived by 
 the defendants. Tho jury found a verdict for the plaintiff", which 
 the judge set aside and granted a new trial on the ground that it 
 was contrary to evidence and to his cliarge. 
 
 The court decided on appeal : 1. That the verdict was not 
 perverse, there being evidence on both sides on the question of 
 extortion, and the case having boon left to tho jury on that ques- 
 tion, and no direction to find for the defendants. 
 
 2. Allan, C. J., and Tuck, J., were of opinion that the ver- 
 dict was not such a one as tho jury might roasonablj- find under 
 the evidence, and that the judge was warranted in granting a new 
 trial. 
 
 8. "Wetmore and King, 'T-T., considered that, as the jury had 
 found for the plaintiff, it must bo assumetl that his evidence was 
 true as to the throat of criminal prot'oe<lings against him if he did 
 not refund tho money ; and therefore that the evidence was suffi- 
 cient to make out tho plaintiffs ease, and the verdict should stand.' 
 
 299. Goods in warehouse Subsequent marine insurance 
 not held covering tho same risk. — The plaintiffs effected a policy 
 
 ' Campbell v. Ulasgow & London Ins. Co., 'M New UrmiN. Uepts. U;{2. 
 
'Wi 
 
 1 
 
 ADDITIONAL INSURANCE. 
 
 471 
 
 ot'iiisiiruiico witli the doteiulant us (.'luiirman of ii tire insurance 
 company for £3,000, *' on wool in hales or tieeees ' greasy ' and 
 ' washed," in all or any shed or store, on station, or in transit to 
 Sydney hy land t)nly, or in any shed or store, or in any wharf in 
 Sydney, until placed in ship.'' The policy contained a provision 
 as follows : '• No claim shall be recoverable if the i»ro[>erty b) pre- 
 viously or subsequently insured elsewhere, unless the particulars 
 of such insurance be notified to the company in writing."' 
 
 The plaintiff subsequently eitected an insurance with a marine 
 insurance company to cover £16,500 upon wool, the risk being 
 described as " at and from th.e River Hunter to Sydney per ships 
 and steamers and thence per ship or ships to London, including the 
 ripk of craft from tlie time that the wools are tirst waterborne, and 
 of transshipment or landing and reshipment at Sydney." The fre- 
 fiuent practice at the port of Sydney is that wool, arriving there 
 for shipment, is not delivered direct to the sliip for which it is in- 
 tended, but is conveyed to the stores belonging to the persons 
 who are acting as the stevedores of the ship and is there pressed 
 for the purpose of recUicing its bulk. By the practice in the 
 course of business, the stevedore's receipt is regarded as between 
 the ship and the shii)pers as eipiivalent to the mate's receipt, and 
 bills of lading are given in exchange for it. Certain wool belong- 
 ing to the plaintiffs was forwarded by several consignments by 
 several steamers from the River Hunter to Sydney. The plaintiff's' 
 agent at Sychiey had the wool conveyed on its arrival to his own 
 stores, for the purpose of being weighed, and entered into a 
 contract for its conveyance to London on board a ship. The 
 wool was then conveyed from the warehouses to the stores of 
 the stevedores of the ship, who gave the usind receipts for the 
 same. 
 
 While in the stevedores' warehouses, a portion of the wool 
 was destroyed or damaged by a fire an<l the plaintiffs sought to re- 
 cover such loss upon the policy effected with the defendant com- 
 pany. The company resisted the claim upon the ground that the 
 policy of marine insurance above-mentioned came within the terms 
 of the provision in the fire policy, and ought to have been c(jra- 
 municated to them. 
 
 The court decided, that the marine did not cover the wool in 
 the stevedores' warehouses, and was not sut-h an insurance as the 
 plaintiffs were bound under the provision in the fire policy to 
 
 i H? 
 
 l; : : 
 
472 
 
 INSURANCE LAW OF CANADA. 
 
 III!;; 
 
 iiotit'y the (Icit'eiHlaiit oninpany, and that the plaintitt's wore there- 
 fore eiititkid to reecn'cr.' 
 
 300. Recent American decision as to notice to agents and 
 company Failure of agents to cancel, as instructed by company. 
 
 — Ill one ease it aitjteared tliat tlie assured obtained further iiisiir- 
 anee on her dwelling, wliieli, unless consented to in writini; l>y the 
 (•oin]iany, voided its policy. There was testimony eoinpeteiit to 
 prove tliat, after olitainiiig tlie additional insurance, the assured 
 notitied the special agents of the compaii}', who undertook to com- 
 luuiiieate with the insurer, and to let the insured know tlie result. 
 There was also proof of an admission i)y the company's general 
 manager trom whicli it could be inferred that the company had re- 
 ceived actual notice of these facts, and had directed the agents to 
 cancel assured's policy, wliich they neglected to do until after 
 assured's dwelling was destroyed by tire. 
 
 Upon an action upon the policy, the Court of Errors and 
 Appeals of New Jersey held, that a non-suit was properly refused, 
 there l)eing proof from which the jury might find that the insurer 
 was estopped by its conduct from setting up the forfeiture of the 
 assured's polic}-.- 
 
 Garrison, J., said : " At the close of the assured's case there 
 was testimony competent to prove, that she had in good faith sub- 
 mitted to her insurers' actual knowledge of a state of facts that 
 placed it Avholly within their power either to continue their con- 
 tract of indemnity, or to relieve themselves of all obligation 
 respecting it ; that they took the matter under advisement, and 
 decided upon the latter course, which decision, owing to the 
 laches of the agent to whom its execution was entrusted, was not 
 communicated to the insured until she had been injured by fire. 
 The case thus presented would, in my opinion, come within the 
 elemental rule of estoppel, that in dealing with others no one shall 
 be permitted to deny that he intended the natural consequences of 
 his conduct, when such conduct has in fact induced others to rely 
 upon it t(t their loss. The natural conseciuence of the failure of 
 the company to communicate to the assured its decision was to in- 
 duce in her the belief that it sicquiesced in the further insurance of 
 
 ' AuNiniliiui AKiicnltural Co. v. .SiiuntU'i-s, lOC.l'. fWW. 
 
 - AKiicull\iriil Ills. Co. of Wiitertowii v. Potts (N.J. IWCJ), 2(! Atl. Hop. 27. 
 Mr. W. C. Kudf^er.s has receiiLly published an article in 4U Central Law .lournal 
 (1890) i;{4, entitled : " StipnlatiouH in Policies against Additional Insurance." 
 
ADDITIONAL INSUKANCK. 
 
 478 
 
 which she had given iiotiee. and, so long as this helioffotitinued, 
 she was lulled into a false security with respect to her iiro|ierty " 
 " At'ter tlie loss had occurred it was too late for the company 
 to set up for the first time in avoiihincc of its oMigation the very 
 state of facts with full knowledge of which it liad permitted the 
 assured to rest secure in her supposed iiroteotion." The court thus 
 disposed of any claim that these agents were the agents of assured 
 in this matter: " Granting that they were her agents for the pur- 
 pose of coinmiiuicating to the insurer the status of her insurance, 
 the company, by entrusting them with the execution of its decision, 
 touching a matter solely within its power, constituted them its 
 agents, so that their negligence in this respect is the negligence of 
 the insurer. There is, it is needless to say, a marked distinction 
 between cases such as this, in which notice given to an agent is in 
 point of fact communicated to the principal, and those in which 
 the principal is charged upon mere proof of notice to an agent. 
 In the latter case, the power of the agent to bind liis princii)al is 
 limited by the scope of his actual or apparent authority ; whereas, 
 in the former case, no t[uestion of agency arises, the sole question 
 being as to the legal duties of tlie principals tliemselves growing 
 out of knowledge actually imparted. For a like reason the pre- 
 sent case is uncomplicated by any question as to the delegation of 
 the power of waiver. Whatever difference of opinion may exist 
 as to the effect of notice to, or waiver by, a special agejit in a given 
 case, there can be no diversity of sentiment as to the plenary 
 power of a party to a contract to waive any condition intended for 
 his benefit, either before or after forfeiture, whether by express 
 declaration or by conduct so misleading that it estops him after- 
 wards from claiming the forfeiture." 
 
 301. Various American decisions. — For other American de- 
 cisions on the question of additional insurance see : — ILtrdij et al. 
 v. Lancashire Ins. Co., 25 Ins. L. J. 746 (1896), as tf) additional 
 insurance by mortgagor without knowledge of mortgagee. — ^'laijara 
 Fire Ins. Co. of City of R Y. v. Johnson, 45 Pac. Rap. 789 (1896) and 
 Fireman's tund Ins. Co. et al. v. Norwood et al. (XT. S. C. C. A., 8th 
 Cir.), 69 Fed Rep. (1895), 71, as to estoppel of company by know- 
 ledge of agent of aiUlitional insurance. — Home Fire Ins. Co. v. Ilam- 
 mang et al. (Neb. S. C), 24 Ins. L. J. (1895), 493, as to agent for- 
 getting to make endorsement of additional insurance ; Anderson v. 
 
 KM 
 
 !!■ I 
 
474 
 
 INSURANCE LAW OF CANAHA. 
 
 Iiiii 
 
 Hi:'' 
 
 )!' 
 
 Maachesiei- Fii-eAss're Co. (Minn. S. C), 63 X. W. Rop. (1895), 
 241, iitj to knowiodgo of other insuranve by delivery of policy. — 
 First NatiuiHil Ban/: of Devil's Lake v. American Central Ins. Co. 
 (Minn. 8. C), 24 Iii.s. L. J. (1805), 56 ; Barnham etal. v. Greenwich 
 Fire Ins. Co., 56 Mo. App., 582 (1895), and Liverimol li- Ldn. A 
 Globe Ins. Co. V. .S'Ae/;*/ (Miss. S. C.) 16 South. Rep. (1895), 307, as 
 to parol consent to further insurance. — West v. Norwich Union Fire 
 Ins. Soc. (Utah S. C), 37 Pac. Rep. (1894) 685, as to agent prom- 
 ising to endorse additional insurance. — Sun Fire Office v. Clark et 
 at., 42 N. E. Rei). 248 (1895), as to increase of risk by additional 
 insurance. — Wilson v. Mat. Fire Ins. Co., 25 Ins. L. J. ■'>49 (1896), 
 as to waiver by continuing to make and collect assessments with 
 knowledge of additional insurance. —Z)e//"*7^ v. Aifricaltaral Ins. Co. 
 of Watertown, 36 N. Y. State Rep. 566 (1896) and State Ins. Co. v. 
 Neic Hampshire Trast C'<., 25 Ins. L. J. 307 (1896), as to adtlitional 
 insurance " procured by the insured" construed. — Union Nat. Bk. 
 of Oshkosh V. German Ins. Co. of Freeport, 71 Fed. Rep. 473 (1896), 
 as to additional insurance in excess of amount permitted by policy. 
 
 302. Recent American decision on compound and specific 
 policies— Floating policies —Limitation of liability. — In a re- 
 cent American case, property situated on two separate blocks was 
 insured to a certain amount under policies covering the entire prop- 
 erty on both lots. The property on one Ijlock was further insured 
 by a policy covering that alone, which contained a provision that 
 the company should not he liable for a greater proportion of any 
 loss than the amount insured should bear to the whole insiirance. 
 The property covered by this policy was partially destroyed, that 
 on the other block remaining uninjured. 
 
 The court decided, that the compound policies covered the 
 property destroyed to their full amount, so that the proportion of 
 the loss to be borne by the specific policy was the proportioi. which 
 that policy bore to the total amount ot both the compound and 
 specitic policies. 
 
 And in another recent American case, the plaintift held two 
 floating policies of insurance, — one issued by defendant, and the 
 other by the H. Co. Defendant's policy provided that defendant 
 should not be liable for any greater proportion of any loss than the 
 amount which its policy bore to the total amount of insurance, nor 
 
 1 Page et al. v. Sun Ins. Office, 25 Ins. L. J. (18lt6), 8.55. 
 
 r'-~igiTa-Mij.i 
 
.ADDITIONAL INSURANCE. 
 
 475 
 
 cover a greater aiiiouut than $600 in any one building. The policy 
 issued by the II. Co. contained the same provision, except that its 
 liability was limited to §800 in any one building. 
 
 The court Avas of opinion, that in case of any loss defendant 
 was liable for two-thirds thereof.' 
 
 I Golde et al. \ Whipple et al., ;W \. Y. Suppl. dSiMi), 1104 
 
 ■^ 
 
 !i r 
 
r 
 
 il8ii;l: 
 
 W'^:'' 
 
 CHAl'TER XI I. 
 
 TRANSFERS AND ASSIGNMENTS. 
 
 30U. Lecislatiox on thaxsfkrs and 
 
 ASSUiNMKNTS. 
 
 ;«)4. Gkxkkai, ki;maiiks on tkans- 
 
 I'KRM— I,F\ I.OCI CONTRACTrs (iOVEKXS. 
 
 'Mo. TkAXSFKK OF IXTKKKST IX FIllK 
 ItlSK VAMII WITHori lOMPAXY's AI'- 
 I UOVAl, — Rl'I.E CUNTHARY AS TO 
 TFANSFEK OF OHJKCT IXSrUKD— IJU hS- 
 TIONS OF WAIVKR — ASSKiXiMKXT IN 
 FORM AX ABSOLUTK TRANSFKE, HUT IN 
 FACT A lOlJ-ATKRAI, SKCURITY— DEED 
 TO CREDITOR WITH RKIHT OV KEDKMP- 
 TIOX NO ALIENATION — ASSKiXMKXT 11 Y 
 PAROL AND DELIVERY, ATTACHMENT 
 IIY CREDITORS— POLICY RETURNED BY 
 (lENERAL AliENT UNENDORSED HELD 
 VOID— EFFECT OF CONSENT OF COMPANY 
 TO ASSIOXMENT AND RIUHT TO UN- 
 EARNED PREMIUM —CONVEYANCE OF 
 PROPERTY, ASSKJNMENT OF POLICY, 
 CONSENT OF COMPANY NOT ENDORSED— 
 ASSKiNMEXI' OF POLICY TO PrRCHASER 
 OF PROPERTY WITH CONSENT OF COM- 
 PANY AND HKEACIl OF CONDITION MY 
 ORKJINAL ASSURED. 
 
 '.VM). A CHATTEL MORTOAUE IS A 
 CHAXCiE OF TITLE AVOIDINIl POLICY, 
 
 IW7. Sale of insured pkopehty 
 
 FOHMEld.Y HELD TO TRANSFER IXSUR- 
 AXCE— HKIIITH UNDER AN ASSKJNMEN'I'. 
 
 :tOM. Contract TO PULL DOWN build- 
 
 INO, LOSS BEFORE I'llANSFEU OF POS- 
 SESSION—CONVEYANCE OF LAND UPON 
 WHICH PROPERTY STANDS. 
 
 llOil. I'AHTNERSIIIP TUIIXED INTO 
 COMPAXY — AVOIDANCE OF POLICY. 
 
 mo. InSURANIE EFFECTED BY OFFI- 
 CIAL A.SSKiXEE. 
 
 311. Property sold for municipal 
 taxes— rede.mitio.n of property. 
 
 ;il2. TrAXSFEP. of RUiHTS IX CO- 
 PARTXERSHIP. 
 
 HI.'}. Short term ixsurance— loss 
 
 PAYABLE TO CREDITORS — NOTICE TO 
 
 AOENT. 
 
 :U4. Covenant to ixsure in mort- 
 
 a A(!E— equitable ASSIOXMENT. 
 
 315. AsSKiNMENT OF POLICY— LOSS 
 
 before assented to in wrii'ing— 
 .sale bv operation of law. 
 31(1. Sale to protect judicial 
 
 SURETY. 
 
 317. Transfer of policy to puk- 
 chaser — sale with rkiht of re- 
 demption— alleoei) misrepresenta- 
 TION— KNOWLEDOE OF AOKNT. 
 
 31H. Alienation iiv insolvency- 
 no TRANSFER TO A.SSKiNEE OBTAINED, 
 
 311). assion.ment of life policy 
 without lonsent of beneficiary- 
 effect of death of beneficiary- 
 american decisions on asskinabil- 
 ity of life polu'ies- tontine insur- 
 ance in for.m of a trust asskinment 
 for mutual benefit. 
 
 320. Transfer of life policy- 
 executor v'AN.NOT CLAIM UXTILTRANS- 
 
 feree's claim is settled — incom- 
 plete TRANSACTION. 
 
 321. SlHHENDER OF LIFE POLICY OB- 
 TAINED BY AI.LEOED FRAUD. 
 
 303. Legislation on transfers and assignments. — In On- 
 tario,' Manitoba,- and British Columbia ' by statutory condition, it' 
 the property insured is assigned without written permission of the 
 
 ' 00 vie. c. 30 (O), H. ItW, MS. \. 2 K. s. M., IHUl, c. 50. stat. con. 4. 
 ■I n. ('. Ins. Poliov Act, 1S!»3, c. 12, stat. con. 4. 
 
TRANSFERS AND ASSIGNMENTS. 
 
 477 
 
 company, the policy becomes void ; except in cases of change of 
 title by succession, by operation of law, or by reason of death. 
 
 In Quebec a transfer of the insured jiroperty renders the 
 policy void, unless done with the consent of the company,' but the 
 policy may always be assigned with the thing nisured, subject to 
 the conditions contained in it.- 
 
 Fire policies may be transferred to those only who have an 
 insurable interest, but life policies may be transferred to parties 
 having no insurable interest.' 
 
 301. Oeneral remarks on transfers -Lex loci contractus 
 grovems. — It has been at times contended that because contracts 
 for insurance are said to be uberrimcc Jidei, a contract for the pur- 
 chase and sale of a policy is also aberrimce Jidei, but this contention 
 ia not maintainable, and the rules which govern the purchase and 
 sale ot policies are the same as those which govern the purchase 
 and sale of any other species of personal property.* 
 
 The leading English case on the question of the law applicable 
 to transfers of policy moneys is Lee v. Abdy.'' In that case plaintift 
 sued the trustees of an English life assurance company as assignee 
 of a policy of life insurance granted by such company. The assign- 
 ment of the policy was made in Cape Colony and, at the time of such 
 assignment, the assured (the assignor) was, and he remained till his 
 death, domiciled in Cape Colony, and the plaintiff was his wife. By 
 the law of that colony such an assignment was void by reason of the 
 .alleged assignee being the wife of the assignor, and it was decided, 
 that the law of Cape Colony applied to the assignment (U' the policy, 
 and therefore that the defendants were entitled to judgment. 
 
 305- Transfer of interest in fire risk valid without com. 
 pany's approval -Rule contrary as to transfer of object insured 
 — duestions waived -Policy returned by general agent unen- 
 dorsed held void. — It has been held in Quebec, that > interest 
 in the insurance money might be legally assigned by any simple 
 form of transfer endorsed on the policy ; that such transfer did not 
 require the consent or acceptance of the insurance company to 
 make it binding ; " and that the transfer by endorsution on the 
 
 ' C. C. L. C. 2570. 2.1S;i. -^ H. S. Q. IHSH. art (5271. 
 ■' 55 Vic. c. ;t!l, HO •. :«, Hulis. 2 (Out.) iind (". V. I,. C. 2IS2, 
 
 * Sue reiiiaikHof Armour, CI., in Potts v. Ti'iiip. & (i. L. Co. of N.A., 2.'< O.H. T.i. 
 " 17 Q. IJ. 1). 'W. Si'o also sufim § 1(2 for lex loci coiiinictufi. 
 "O'Connor v. Imperial Ins. Co., H L. C. .1. 21lt, ImU see Cro.s8 v. I). A. Ins. Co., 
 1 H. C. 24:t, Review . 
 
 
 
 •Si 
 
 * .1' ■ 
 
 n 
 
 i^'M 
 
 k i. 
 
;aiir 
 
 478 
 
 INSURANCE LAW OF CANADA. 
 
 I;. 
 
 ],.., .,'i . -i I;: 
 
 liiiw 
 
 iM .: if. I . : . 
 
 
 policy, but without alienation of the thing assured, gave to the 
 transferee no more rights than had the transferor ; that he was 
 subject to all the conditions of the policy, and could not recover 
 uidess the assured had made proof of loss.' 
 
 A similar decision has very recentl}- been given in Ontario. 
 In this case ■' the defendants issued a policy of insurance to one 
 McXulty for $1,200 ; $000 on his dwelling and §000 on the con- 
 tents thereof. The land and buildings were at this time mort- 
 gaged to the plaintiff tor §3,000, and the loss, if any, under the 
 policy- as issued was to be payable to the plaintiff, as his interests 
 might appear. Later, McXulty executed under seal an assign- 
 ment of the policy by endorsing on it a statement that it was 
 transferred to plaintitf in consideration of the mortgage. 
 
 The policy did not contain the usual provision that a trans- 
 fer without the company's consent should avoid the policy, nor 
 was the company's consent to the above transfer obtained. Sub- 
 sequently McNulty gave the plaintiff a mortgage upon the chat- 
 tels. A fire occurred later, and there was a total loss on the 
 buildings and a partial loss on the contents. 
 
 The company resisted the plaintiff's claim for paymcTit on 
 the ground that the assignment without their consent rendered 
 the policy void, and that as to the chattels the plaintiff could in no 
 event recover, as at the date of the assignment he had no interest 
 in them. 
 
 The iirst court gave judgment for plaintiff in respect of the 
 loss of the buildings for §600, and for §140 in respect of the loss 
 on chattels, and the Court of Appeals confirmed the judgment. 
 
 Tiie judges said, that " when a fire policy is said to be unassign- 
 able, even in equity, without the consent of the insurers, it must be 
 taken to mean that the transfer which is prohibite<l is that of the 
 entire ownership. The assignment in this case did not i)rofess to 
 vary in any respect the contract of insurance. It was, as has been 
 held in several American cases, a mere aiqiointnu'nt in favour of 
 McPhillips to receive, and a direction to the insurers to pay to 
 him, the loss when, if at all, it sliould occur." 
 
 "The interest of McNulty in tlie property continued as before, 
 
 ' C. R., While V. Homo Ins. Co.. 2 H. ('. 'S.V2 ; New York LilV Ins. Co. v, I'aicnl., 
 :i g. I.. It. lit:i, iiiiil si>e iilso McPhillips v. London Mnt. !•'. I. ("., I, if, -it. aiul Willoy & 
 Mat. Fire Ins. Co. of Stiinstoad, 2 Q. H. H. '.Ml. 
 
 a McPiiilliiKs V. Loiidon Mut. l-'in- Ins. Co., -j:! .V. li. .V.'l. 
 
TRANSFERS AND ASSIGNMENTS. 
 
 479 
 
 but it was an appropriation beforehand to tlie payment ot tlie 
 plaintift's debt ot the money secured by the policy, should that 
 loss ever become payable. There was no valid objection to such 
 an assignment. It' instead of this formal assignment it had taken 
 the shape of an order on the insurers to this effect : " In the event 
 of loss, pay the amount of such loss to McriuUips," — what objection 
 could there have been to such an order? It simply converts one 
 of the parties into a trustee for the other. It is oidy a contingent 
 order or assignment of what may become due under the policy." 
 
 '• The defendants had compared this to tiie case where the 
 insuri'd had sold the property out and out, and had attempted by 
 assignment or transfer, without the consent of the company, to 
 attach or continui' tlie risk to the goods in the hands of the new 
 owner. That is what was referred to in the passage cited from 
 (fr{tf'('!/ V. Ncir York Central Limirance Co., 100 N. Y. 417,' and in 
 Bunyoit's Law of Fire Insurance, 4th e'Jition, pp. 14, 25»3 ; but 
 there was not the least analogy between the two cases." 
 
 " Here, McNultv remained the owner of the jj-oods insured. All 
 lie tliil was to assign his interest in the policy, and the benefit and 
 advantage he might derive therefrom in case of loss, to the ]»lain- 
 titf as collateral security. It was no more than an assignment of 
 a chose in action, to wiiich no consent by the insurers was neces- 
 sary. ^^cXulty remained the insured, but he provided thereby 
 that the loss, if it occurred, should be payable to some one else, 
 who was in fact his own creditor. Xo case in our law was cited 
 which forbids that to l)f <U)ne. The assent of the insurers is essen- 
 tial only where the policy is assigned to accompany a sale of the 
 [iroperty insured and a new contract ot' insurance is intende<l to 
 arise between the purchaser ami the insurance company. ^>ubjei't 
 til the chattel mortgage. McXulty was at the time of the fire both 
 owner and insured. The assignment having been by way of 
 security, the action ought properly to have Itccii brought in his 
 mime, l)ut as he had I'l't'used to become party plaintiff it was prop- 
 erly maintaineil in the name of the plaintiff as assignee.'" 
 
 Whether a provision ot a policy of tire insurance that *' if this 
 polirv should be assiu'tied Itefori' a loss without the consent ol' the 
 company endorsed thereon" the polii-y should be void, wnuld be 
 violated liy a pledge of a [lolicy of insurance as collateral security 
 
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 \\\^^M 
 
 ! I' 
 
 8e« bi,t'ni p.. 1^1. 
 
m^^ 
 
 480 
 
 INSUKANCE LAW OF CANADA. 
 
 to a creditor of the liolder, has been considered fully by the New 
 York Court of Appeals, and these are their declarations as to the 
 proper construction of the provisions of the policy and the law- 
 applicable to such a pledge : — 
 
 " In the first place, it is apparent that nothing but an eflectual 
 assignment or transfer will come within the terms of this provi- 
 sion. In this case the policy was not transferred. No interest in 
 the insured property was conveyed, but it all remained as before. 
 In case of loss, therefore, the transferee could not recover, not 
 only because he had suffered no loss and was not a party to the 
 contract, but the transfer of the policy was not accompanied with 
 any interest in the subject of insurance. The clause in question, 
 although of several members, is in itself single, and is aimed 
 against the transfer, or any change in title or possession, of the 
 insured property, and the assignment of the policy which it pro- 
 hibits is in connection with the events which affect the ownership 
 of the things insured. They must not be construed together. 
 Otherwise the words relating to the policy would have no mean- 
 ing. Without them the assignment would be inoperative for any 
 purpose. It would not render the policy void, but it would be of 
 no value. If the property was burned, the underwriters would be 
 under no obligation to pay anyone : not the assignee, for the prop- 
 erty destroyed did not belong to him, so he incurred no damage, 
 nor the assured, for he had parted with the contract of indemnity. 
 But, if we take the prohibition as applying to the policy discon- 
 nected from the proi)erty, it would not work the result claimed by 
 the insurer." 
 
 "An assignment is u transfer or setting over of property, or 
 of some right or interest therein, from one person to another, and, 
 unless in some way qualified, it is properly the transfer of one's 
 whole interest in an estate or chattel or other thing. In that 
 sense the policy in (juestion has not been ' assigned.' It, with 
 others, was delivered to the creditor upon an agreement that the 
 policy should stand as collateral security for certain claims held by 
 it against the insured, and in case of loss to the property insured, 
 they should 'bo payable' to the bank as its 'claim against the 
 insured should ajipear.' The assured did not part with the title. 
 The transfer was not unconditional. They retained not only the 
 whole insured property, but an interest in the policy. In iiny jtro- 
 cecding for its enforcement they would have been a lUH'essary 
 
TRANSFERS AND ASSIGNMENTS. 
 
 481 
 
 I I 
 
 1 
 
 If 
 
 party;' aiul upon payment ot" tlio debt entitled to what tliey in 
 tact have had — a redelivery of the policy.'' 
 
 " The agreement under which they transferred it did not pro- 
 fess to vary in any respect the contract of insurance. It was at 
 most a mere appointment of the hank to receive and a direction to 
 tlie insurers to pay to it the loss when, if at all, it should accrue. 
 In other words, it was an appropriation l)eforehand to the pay- 
 ment of specitic debts of a portion ot the money which might be- 
 come due by reason of the cause insured against, and the plaintiffs 
 had as much interest in the policy after its pledge to the bank as 
 they had before. The money for which the insurers might become 
 liable was to be applied to their use. The bank held it in trust as 
 bailee, and not as owner, and until by an act of the assured some 
 person other than themselves should staiul in that situation, the 
 prohibition against the assignment could not appl}', and the policy 
 remained valid to protect their interests." - 
 
 " In Conover's case, supra, the charter of the defendant pro- 
 vided that, whenever the insured property ' shall be alienated by 
 sale or otherwise, the })olicy shall thereupon be void,' and it was 
 held, that the words did not embrace a mortgage, since it creates 
 l>ut a lieu or security and does not transfer the title; and in 
 Shearman's case, supra, the same rule was held to apply to a clause 
 forbidding a transfer of the policy. To take away the cause of 
 action in one case, and to render void the policy in the other, 
 c(iually roi[uires a transfer or alienation of the entire insurable 
 interest. It seems, indeed, to be well settled that, so long as the 
 insured retains such an interest tlnit he may be a sufferer by the 
 loss, the policy remains vaiid to that extent." ' 
 
 In a recent American case it appeared, that there was a sale 
 
 ' Simpson v. Siitei'k'c, (11 \. V. fu)' ; Joluisoii v. Hurt, H.Iolins. Cum. .'i-ii : Con- 
 ovor V. Mut. Ins. Co., 1 N. V. lilHI ; l!:ii(l v. I'oolo, 12 \. Y. liir, ; Wliitiu-y v. McKiii- 
 iicy, T.Ioluis. C'li. Ill; Kii'lil v. Mavur. i^c, (( N. V. 17!l 
 
 - llitclicock V, Ni)rtli\vesti'ni Ins. <;<)., :i() N, V, tiS; .lacksoii v. Si- nail, l") 
 • lolins. :!7S; Slu'tirninn v. Niiiuj.iia l''ii'i' Ins. (,'o., ".i .Swci'ni'v 17(1; I.iiziirus v, I'oni- 
 inonweiiltli Ins. Co., ."> I'icit, 7(i, SO, 
 
 •(iriUfV V. \. Y. Contriil Ins Co. (lS.s:,")i, KHI N . V. 117, referred to .SK/or/. 
 Sl'o iilsii I.yndo v. NcwiirU I'Mre Ins. I'o, (1S,S.")|, !:!!( Muss. .">7, uliere nnonl liiul no 
 iiiUhoi'ity to iVHsent to an ii.sslnnnu'nt in form iinii understoml to lie an absolute 
 triinsfer, lint, in fiiet made lis colluli'ral secnrily.— Nussliamu v. Norltiern Ins. Co. 
 (IS.sin, ;t7 l''ed. Hep. "):il, where a deed loereditor to seenre del it with riy;lit of redenip- 
 t ion was ludd to 1)0 no alieniition.— l.einl^anf v, Colnmn (ISSS), HON, \'. .Vl, as to 
 assignment 1)V parol and delivery, and attachment l)y ereditors. 
 
 31 
 
 
 I i 
 

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 M 
 
 
 l.i' 
 
 482 
 
 INSURANCE LAW OF CANADA. 
 
 of the property insured and an asHignment of the policy' without 
 the company's consent, as required in the condition in the policy 
 regarding such matters. The assignee sent the policy to an agent, 
 Avho returned it unendorsed, explaining that he had no authority 
 to authorize a transfer, and suggesting that the policy be sent to 
 the general agent, who would endorse thereon the company's con- 
 sent. It was sent to this general agent, who returned it unen- 
 dorsed, without explanation. The assignee, supposing it to be 
 properly endorsed, made no examination of it, put it away, and 
 never saw it again until after the loss. 
 
 The Indiana Appellate Court held, that there was no contract 
 »..«f insurance with the assignee and no liability on the policy.' 
 
 It was insisted for the insured in this case, that the assignment 
 
 '■■'■ policy without the company's consent did not ipso facto 
 Mi'Ti. a forfeiture, but, having received notice of the assignment, 
 t,ome act or declaration upon the part of the company was neces- 
 sary to produce that result, and having remained silent, the breach 
 of I. nditi 'US waived. 
 
 The ^.o^v^ •<.jd : ''It is argued that the word 'void' should 
 be construed as ' voidable.' In many instances, after an insurance 
 company has notice of the breach of a condition which, according 
 to the terms of the policy, would result in a forfeiture, it must in 
 some alHrmative nunnier manifest its avoidance of the policy, or 
 the condition will be taken as waived. 
 
 •• A void contract is incapable of being inspired with legal 
 vitality, excejit by some act c(|uivalcnt in effect to a new execu- 
 tion. Hence it follows that the breach of any condition that can 
 be waived renders the contract voidable only. Jjut a diltcrent prin- 
 cijile iiiiplies to the (picstion involved in this appeal. 
 
 ■• Insurance policies are contracts of iiulenuiity. and are essen- 
 tially personal in their nature. They relate to the insured rather 
 than to the subject matter of insurance, and at common law were 
 non-assignable. There is no statutory provision changing the 
 common law rule, but after a loss has occurri'd the policy becomes 
 a chose in action, and is assignable as other ciioscs in action are. 
 Courts know, as a nuitter of general knowledge, that the character 
 of the insured is taken into account as atlecfing the moral hazartl 
 
 I Ni'w V. iJernian Inn. Co. of I'lveport (1S!)2», ."i Iiid. App. sl'. Si-o iilso .Mivnclii'ster 
 ,i III. V. (iniinlian Assur. Co. (\. Y. S. O, ;t(l N. V. Siippl. dsoh, 111; (II N. Y. Sliilo 
 Hf)), (isill), 77!i. 
 
TRANSFERS AND ASSIGNMENTS. 
 
 483 
 
 of a risk, and this is an additional reason why a change of indem- 
 nity shouUl not occur without the consent of the indemnitor. 
 
 "An insured must have an interest in the suhject of insur- 
 atice, or the policy will he held a wager contract, and void as 
 against puhlic policy. Having ohtained valid insurance, if the 
 interest of the policy-holder ceases in the property covered, the 
 policy at once becomes inoperative. There is then no possibility 
 of a loss, consequently no basis for indemnity. The contract being 
 one of indemnity and personal to the insured, it follows that any 
 assignment by him, with a transfer of the title to the property, 
 transfers no right in the insurance to the assignee without the con- 
 sent of the insurer. Such consent is equivalent to the creation of 
 a new contract between the assignee and the insurer, acconling to 
 the terms of the policy assigned. It is not strictly an assignment, 
 but the making of a new contract. This being the case, there 
 never was any contract between the assignee of the policy and the 
 insurer, and consequently no conditions that could be waived. 
 After the transfer of the title, the insured had no insurance, 1)0- 
 cause he had nothing to insure. Hence, no right passed by the 
 assignment of the policy. The assignee had no right to rely upon 
 the suggestion of the iirst agent to whom he sent the policy that 
 the general agent woulu endorse the company's consent to the 
 transfer. Conditions nniy be waived by silence under some cir- 
 cumstances, but it is rare that entirely new indemnity contracts 
 may be created in that manner.'" ' 
 
 306. A chattel mortgage is a change of title avoiding policy. 
 
 — Wiiere a policy of insurance against fire provides that in the event 
 of any sale, transfer or change of title in the property insured the 
 liability of the company should thenceforth cease, and that the 
 policy should not ho assignable without the consent t)f the company 
 endorsed thereon, and all encumbrances effected by the assured 
 must be notified within 15 days therefrom, there is no doul)t that 
 a chattel mortgage on the [n'operty insured is not a sale or transfer 
 within tile meaning of this coiiditioii, but it is a "change of title" 
 
 1 See also Hall \. Nia^fiira I'Miv Ins. Co. (IS!I2), li:i Mich. ls|, lor I'U'ecl of ( Diisonl 
 of coinpiiiiv to fiNsigmiu'iit and rijilit touiu'ariiud piviniiim. — Lett v, (iirinlian !•". Ins. 
 Co. (IsiKi), \2't S. V. S;i, ami cases ("iti'd tlRTi', as to oonvoyancc of property, assign 
 int'iit of iiolicy. consent of eoinpany not enilorsed.— Kills v, Ins. Co, of N. A. (ISS7(, '42 
 Fed. Uep, (III!, and Continental Ins. Co. v. .Munns (l,s,sih, 120 Ind. HO, ttstoassinn. 
 iiient of policy lo purchaser of properly with consent of company, and hreaeh of con- 
 dition by original assured. 
 
 i 
 
 If 
 
 
484 
 
 INSURANCE LAW OF CANADA. 
 
 m 
 
 IP 
 
 m\ 
 
 
 til 
 
 W 
 
 which avoids the policy, and further, it is an oncumbrancc even if 
 the condition means an encumbrance on the policy.' 
 
 The fpiestion of a mortgage operating as a change of title was 
 fully discussed in a recent case in the United States ; the leading 
 cases on the subject were reviewed, but the holding was difterent 
 from that of the Supreme Court of Canada just cited.^ 
 
 307. Sale of insured property formerly held to transfer 
 insurance— Rights under an assiernment. It was formerly held 
 in Quebec, that the interest of the vendor ot real estate in a policy 
 of insurance against fire, effected by the vendor previous to the 
 sale, passed by operation of law to the purchaser, the sale being 
 notified to the company and that a payment made by the insurance 
 company to the vendor on a loss occurring after the sale, of a sum 
 larger than the balance of the purchase money remaining unpaid, 
 enured to the benefit of the purchaser as a discharge for such 
 balance.' But as we have seen, this is no longer the law.' 
 
 In a Quebec case, one Pago transferred to appellant two insur- 
 ance policies issued by respondents. Subsequently the property 
 insured was destroyed by fire, but this was only after Page had 
 ceased to have any interest in such property. On a cLiim by 
 appellant to recover the amount of said policies, the court decided : 
 Ist. That the assignee of a policy issued by a mutual insurance 
 company can only exercise such claims as the transferor could him- 
 self have done. 2nd. That, in this case Pago having ceased to 
 have any title to the property insured when the fire occurred, he 
 could not recover the amount insured under the policies aforesaid 
 and that the appellant was therefore debarred from such claim.' 
 
 The rights of third parties having an insurable interest in the 
 objects covered by the policy are not affected by subsequent acts of 
 the insured, but if the assignee of a policy is not interested in the 
 property insured he does not, by such assignment and the assent 
 of the company thereto, beconie the assured under the policy, ■. nd 
 
 ' Sui)i'oiiu', Court of Canada (on appeal from tlio Supremo Court of Xova St'Otia)i 
 CitizouH Ins. Co. of Canada & SaltL>rio, 2;i S.C.H. I'm, (.Soverei|j;n Ins. Co. & Feters, 
 12 S.C.U. IW, ilistinKuislied) and .seo Torrop v. Imperial Klre In.s. Co., 2(( S.CMi. 585; 
 May V. Standard Kire Ins. Co., 5 A. It. (iO.I; 2(i Chy. 11.5 ; Sand v. Standard Ins. Co., 
 27Cliy. 1(17; 11 O.K. ;t22 ; Hull v. Xorlli British Can. Invest. Co., 15 A.H 121. 
 
 '■i See Union Ins. Co. v. Barrett (lH;);t), cited with other cases in point in Beueli, 
 (Mil. •' Leclairo v. Crasi)er, 5 L.C.H. IH7. 
 
 * C.tM- C. 2IHH. (J.B. KorKie & Uoyal In.s. Co., 1(! L.C.J . ill, supra S 'MX 
 
 '' Willey & Mut. Fire Ins. Co. of Slanslead, 2 Q.B.H. 2it, and see (iuerin v. 
 Manchester Fire In.s, Co., R. .1. Q. 5. ti. B. 131, infra chap. XVII. 
 
TRANSFERS AND ASSIGNMENTS. 
 
 485 
 
 1 
 
 m 
 
 
 iT 
 
 
 
 
 
 u:h, 
 
 the policy still remains liable to l)e deleatcd hy a breach of the 
 coiitlitioiis by the assiijiior.' 
 
 308. Contract to pull down building, loss before transfer of 
 possession Conveyance of land upon which property stands.— 
 
 The fact that the owners of an iiisured building had entered into 
 an executory contract for the pulling down of a !)uilding insured 
 and tor the sale of the materials to the contractors at a sum very 
 much less than the amount ot the insurance was held, in a recent 
 Ontario case, to be no bar to their right to recover the full amount 
 of the insurance when the building was burnt down before the 
 time fixed by the contract for the transfer of possession. - 
 
 And in another recent Ontario case, where the policy in one 
 gum covered buildings and chattels, and the land upon which the 
 buildings stood was conveyed by deed without the consent of the 
 insurers, in breachof the fourth statutory condition,' the policy was 
 considered avoided in toto and did not remain in force as to the 
 chattels. 
 
 In this case, the distinction between the breach of that con- 
 dition and the iirst condition was pointed out.' 
 
 309. Partnership turned into company -Avoidance of policy. 
 
 — Where the business of a partnership was taken over by a limited 
 liability company formed for that purpose, there was lield to be 
 such a change of interest as to invalidate insurances held by the 
 firm in the absence of notification of the change to, and assent by, 
 the insurance company, though the members of the partnership 
 held nearly all the stock in the limited liability company.'' 
 
 310. Insurance effected by oflloial assignee — A loss under a 
 fire policy efiected by an official assignee under tlie "Insolvent 
 Act" of 1875, to whom an assignment had been ma<le under the 
 Act, has been held recoverable by the assignee subsequently 
 elected by the creditors, notwithstanding that in the policy the 
 assured was described sinii)ly as ''official assignee," the loss being 
 made payable to the estate so assigned to him. Ami it was con- 
 
 ' Kaniuly v. Gore Dist. Mat. liis. Co., 14 rC.Q.H. 2til. 
 
 - Ardill c^ n7. v. Citizens I nsunuice Company ; Anlill it al. v. Alttui Insurance 
 Company, 20 A. It. (10."), and .soe mqmt S VMh. i («) Vic. c. HO 10) s. UW, .«s. 4, 
 
 ■* Gore District Mutual Fire Insurance Co. v. Sanio, 2S.C.R. 411, applied. 
 ■Tudgment of Armour, C'.J., reversed. Dunlop v. Usbornc, and Hibbert 
 V. Farmers' Mutual Fire Insurance Co., 22 A.R. 'M-\. 
 
 ■' The A. G. Peuclien Co. ct nl. v. The City Mutual Fire Ins. Co., IS A.R. 44fl. 
 
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 486 
 
 INSURANCE LAW OF CANADA. 
 
 sidered such loss may \w so recovered, notwithstanding that the 
 fire had occurred after the appointment of tlie second assiijnee 
 and that his appointment liad not hecn specially communicated to 
 the insurance company before tlie tire ; and that, under the circum- 
 stances of the case, there was not any change, either of ownership 
 or possession.' 
 
 311. Property sold for municipal taxes -Redemption of 
 property — In a Quebec case the action was for $800, amount of a 
 lire policy, and the plea was that the property insured was, after 
 the issue of the policy, st)ld for taxes under the municipal code, 
 and the ownership having become vested in the purehaser, the 
 insured had lost all insurable interest therein. Special answer 
 that the municipal sale never finally divested the insured of the 
 ownershii) ; that before the fire he had, under the provision of the 
 muineipal Code, redeemed his property, and had never ceased to 
 have an insurable interest in it. 
 
 It was decided, that the sale of the property for municipal 
 taxes under a municipal Code, followed, as it was, by the redemp- 
 tion of the property in accordance with said court, was not such 
 alienation as would void the policy, either uiuler the conditions 
 endorsed upon it, or under the conditions of article 2576 of the 
 Civil Code.- 
 
 312. Transfer of rights in co-partnership. — "Where in another 
 Quebec case one McD. iransferred to M. all his rights in a co- 
 partnership existing between them on coiulition that M. paid him 
 f 3000, acquitted the partnership debts and the personal debs of 
 AIcD., and until payment of the !$3000, he would hold the merchan- 
 dise insured and hand the policies to McD. ; the merchandise was 
 at the time insured in name of ^[cD. ahme in two mutual insur- 
 ances by tliree policies which were to expire some months later 
 and which McD. renewed ; McD. and M. subse(|uently closed 
 their accounts : — 
 
 It was decided, that the transfer of the merchamlise did not 
 transfer the policies which only continued to cover the goods in 
 which McD. had an insurable interest and that M. owed contri- 
 butions for losses anterior to the expiration of tlu> policies only as 
 partnership and personal debts of McD., but that those subsequent 
 
 1 Klliott & iNatioiml Ins. Co., 2a L.CT. 12. 
 
 2 Paquet v. Citizens Ins. Co., 4 Q.L.R. 2;«}. 
 
TRANSFERS AND ASSIGNMENTS. 
 
 487 
 
 to the renowiil ot" the policies wero duo hy McD. only, without 
 recourse agsiinst M., and that McD. had nr, recourse against M. 
 excei)t for contributiojis for losses anterior to the expiration of the 
 policies which were not declared to him, before the settlement.' 
 
 313. Short term insurance— Loss payable to creditors— Notice 
 to aRent. In a case decided hy the Sniireme Court of Canada, tlu- 
 appellant, being indehteil to certain persons and desiring to have 
 his stock of goods insured, applied to the agents of respondents 
 for insurance to the amount of $2,000 for three months, " loss, if 
 any, to be payable to his creditors of whom G. McK. is one and 
 McK. & Co. are second.'" An interim receipt was issued by the 
 company, dated 19th November, 1877. which stated the insurance 
 to be subject to the conditions contained in and endorsed upon the 
 printed form of policy in use by the company, one of which cmi- 
 ditions (Xo. 4) stated that, if the projjcrty insured should be 
 assigned witliout a written permission endorsed on the policy l)y 
 an agent of the company duly authorized for such purpose, the 
 policy should be void. 
 
 On the 28th November, the api»c]lant transferred the insured 
 property to the said G. McK., in trust tor his creditors, the balance, 
 if any, to be payable to himself. The agent of the (;ompany was 
 notified of this transfer anil assented to it, stating that no notice 
 to the (iompany was necessary, the |)olicy being made payable to 
 the creditors. The property was dcstroyetl by tire on the 15th 
 January, 1878. The policy sued upon was dated the r2th Decem- 
 ber, 1877, but was not delivered until the morning after the tire. 
 By it the loss was made " payable to G. McK. & Co., and others as 
 creditors, as their interests may appear." After the tire the in- 
 spector of the company wrote twice to McK. calling for proof of 
 loss. 
 
 The Supreme Court of Canada decided, reversing the judg- 
 ment of the Court of Appeal for Ontario : — (1) That the notice of 
 the trust assignment to the com[)any's agent was sulKcient, that 
 the company must be considered us having assented to such assign- 
 ment, and as having executed the policy with fnl! knowledge of 
 it; and that such assignment was not one contemplated by the 
 condition of the policy ; (2) That the words " loss payable, if any, 
 to G. McK., etc."' operated to enable the respondents in fultilment 
 
 1 McDonald v. .Ares.ser, luQ.L.H. :«, Q.H. ;jr) I..(\.I 17 
 
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 Iiliiilil' 
 
 488 
 
 INSURANCE LAW OF CANADA. 
 
 
 iilSiiip 
 
 of that covenant to pay the iiarties named ; hut as tliey had not 
 paid them and the policy exi»re89ly stated tlie appelhint to he the 
 person witli whom the contract and tlie respondent's covenant was 
 made, tlie ai-tion for a l)reach of that covenant was properly 
 hrought l)v him aU)ne.' 
 
 314. Covenant to insure in mortgrag'e -Equitable assignment. 
 
 — It has l)een held in Ontario, that the usual covenant to insurt 
 tained in a mortgage executed under the " Act respecting bi.>^it 
 Forms of Mortgage," operates as an equitable assignment of the 
 insurance when effected. 
 
 315. Assignment of policy -Loss before assented to in writ- 
 ing-Sale by operation of law — In another Ontario case, oiu^ G. 
 
 insured a tug when navigating the rivers Sydenham, St. Clair. 
 Detroit and Thames, and Lake St. Chiir, loss, it any, payable to 
 M., as his interest might appear. M., at the time of insurance and 
 down to the happening of the loss, was mortgagee. The tug was 
 libelled in the American Admiralty Court, and to avoid the claim 
 thereon Cj. used the proceedings therein upon a claim for wages to 
 have a traudulent sale thereof made to J. Afterwards, G. pro- 
 cured a renewal ot the policy without disclosing the sale of wh h, 
 however, defendants wore subsecpiently notified. G. with > 
 dants' assent assigned the policy to M., but before that assei.. > 
 put in writing the tug was burned in the Chenail Ecarti, one of 
 the channels of the St. Clair. M. and J. delivered proof papers of 
 claim. whi(di were objected to. G. did not deliver any. At the 
 trial leave was given to add G.and J. as co-plaintiffs and judgment 
 was directed to be entered for the plaintiffs for the full amount of 
 the insurance. The Q.B.D. (12 O. R. 706) decided, that ;he action 
 was properly constituted and gave judgment in favour of the 
 plaintifl''. On appeal, that judgmi-iit was affirmed with costs on the 
 ground that the relation of trustee and cestid que trust had been 
 created between G. and the plaintiff in respect of the policy moneys. 
 Burton, .f. A., dissenting. Armour. .!., considered that the sale of 
 the tug was by operation of law. ' 
 
 ' Supreme Court of Canada, McQueen v. The Plioenix Mut. F. Ins. Co., 4 S.C.R. 
 680. See also supra cli. V. for otlier eases of interim receipts and sliort term insur- 
 ances. 
 
 - (irect V. ("itizens' Ins. Co., and do. v. Hoyal Ins. Co., .5, A.R., 'i'M'k 
 '■'• Mit'.^hell V. City of London Ins. Co., 1.") A.H. 2(i2, and see Howes v. Uom. Fire 
 & Mar. Ins. Co., 8 A.R. (it4. Royal Ins. Co. v. Beers, 1) O.K. 120. 
 
TUANSFKRS AND ASSUiNMENTS. 
 
 489 
 
 316. Sale to protect judicial surety — In a Qnchcc t-ase, wliero 
 till' action on a poliry of insurance by wliicli the plaintiff's stock-in- 
 trade, consisting of fancy goods was insurod against loss hy lire, 
 the principal plea ot the Company wnn to the effect that, contrary 
 to a condition endorsed on the policy, a sale and transfer of the 
 goods of plaiiitirt' had been made to om^ F. in i-onsidcration of a 
 certain suretyshiii entered into by F. in favor of plaintiffs brother, 
 in order to obtain the release of the l>rother from jail. To this tlie 
 plaintitt answered, that there had been no delivery of the efteetrf 
 mentioned in the deed ot sale ; that the stock had always remained 
 in plaintiff's possession and tlie deed was without effect. Condition 
 No. 2 on the back of the policy was as follows : — '* Without written 
 permission of tlie compan}- it will not he liable for loss or damage 
 if any change talces place in the occupation, location, title or 
 position of the proi>erty herein specified. In every case without 
 such permission this policy is void and all insurance thereunder 
 immediately ceases and determines." The sale to F. was before 
 notary and was to be void at the expiration of suretyship wliich, 
 however, did not occur until after the fire. The court was of 
 opinion tliat tlie policy was mill.' 
 
 317. Transfer of policy to purchaser— Sale with right of 
 redemption— Alleged misrepresentation - Knowledge of agent.— 
 
 In anotlier Quebec case, an action was taken for S8,280 under a 
 policy issued in favor of one who, on the 23rd August, 1876, trans- 
 ferred to appellant. The fire occurred 27th Sejitembcr, 1876. 
 The plea was, that the transferor obtained the policy on the repre- 
 sentation that he was proprietor of the property, Avhicli was untrue. 
 By tlie evidence it appeared, that in 1871, some years previous to 
 the issue of the policy, tlie transferor sold the property to appellant 
 with the stipulation that he would be at libert}- to take back, as 
 soon as he liad repaid appellant the amount he owed him, he him- 
 self remaining in possession. At tlie time of the issue of the policy 
 this relation was made known to the agent, and a policy made out 
 and transferred toappellaui for the whole amount of tlie insurance, 
 although his interest amounted only to $1,510. It was decide<l, 
 reversing the judgment of the court below, that he should have 
 judgment for that amount.' 
 
 ' Semriu'lhuack v. CaniulaFire & Marine Ins. Co., i L.N. 2i)'i, S.C. 18S1. 
 - Sheridan v. Ottawa Agricultural Ins. Co., 2 L.N. 20(i, Q.B. isTit. 
 
490 
 
 INSURANCE LAW OF CANADA. 
 
 fiPi- 
 
 
 B: 
 
 318. Alienation by insolvency - No transfer to assignee 
 obtained. — And whore iin iiction was taken under a policy ot 
 insurance to recover a loss by tire, the plaintiff being assignee in 
 insolvency to one ^^cTv. : there were several pleas fyled, the tirst of 
 which admitted the execution of the policy subject to the conditions 
 contained in it, and also the possession of the estate of the insured 
 by the plaintiff as assignee at the time of the fire, but set up that 
 the insurance was effected on the mutual principle and that one of 
 its conditions was, that it was made subject to the provisions of 
 the statutes of Ontario regulating the organization of mutual in- 
 surance companies, which were to be used to ascertain the rights 
 and obligations of the parties. 
 
 The court said, that it was a distinct proviso in tlie body of 
 the policy that "this ])oUcy is made and accepted subject to the 
 Statutes al)ove mentioned,'' that is to say, the Statute ot On*^ario, 
 86 Vic. c. 44, and those consolidated and amended by it. That 
 was the contract between the assurer and the assured. Section 39 
 of that Statute enacted that the jiolicy shall be void if it be alien- 
 ated by insolvency or otherwise, and shall be surrendered to the 
 fompany to be cancelled ; but upon m.iking aiiplication to the 
 directors, and giving security tor the payment of the premium 
 note, the assignee may have the policy transferred to him, if the 
 directors give their consent within thirty days. The assignee, 
 therefore, miglit have had a right of action if he had done this, but 
 not otherwise. The basis of the contract ot the parties was the 
 Statute: if the assignee wished to avail himself of it, he had three 
 things to do: to make application ; to give security ; and wait 80 
 days for the company's answer. 
 
 Tlu' first plea was conse(|uently maintained.' 
 
 319. Assigrnment of life policy without consent of bene- 
 ficiary Effect of death of beneficiary. In so liir as regards the 
 
 beneticiary, the original contract is one between two parties for 
 the benefit of a third, and the right to divest him of the benefit 
 without his consent depends on the law of the jurisdiction in ques- 
 tion affecting general contracts for the benefit ot' third parties 
 which are unaccepte<l by them. The prevailing rule in the [Tnited 
 States is that it cannot be so divested." In other words, that tlu' 
 
 ' Simbokcii V, Canadn Mutiinl Insuraiuo Co., S. I". Ih7tl, citoil in II Sti'plieiiis 
 DIgi'st, l();t. 
 
 - Cfntnil Hank ot Washington v. Hume, 12H U.S., im (18KH). 
 
TRANSFERS AND ASSIflNMENTS. 
 
 401 
 
 -T'-;!:.' 
 
 if!l; 
 
 
 !^ 
 
 
 -^ 
 
 
 ■:,i 
 
 
 
 heneticiary has a vested right, unless tlie right to divest has bouii 
 reserved. 
 
 The right to change the beneticiarv in policies coming under 
 the operation ot" the ditterent Canadian provincial Acts governing 
 insurance for the benefit of wives and children, is regulated by 
 these acts, and has been fully dealt with in Chapter VIII. ot this 
 work 
 
 The effect of the death of the beneticiary depends on whether 
 he has a vested riglit or not. If he has, it passes of course to his 
 heirs. The United States decisions are contradictory as to whether 
 the wife beneficiary must survive her husband in order to bcnetit.' 
 
 It has been hehl in Ontario, that the beneficiary's interest 
 ceases.- And this is the law in Quebec' 
 
 320. Transfer of life policy -Executor cannot claim until 
 transferee's claim is settled -Incomplete transaction. — In a case 
 where plaintiff as executor to a deceased person, whose life had 
 been insured, is unable to surrender the policy of insurance to the 
 insurance company, inasmuch as said policy had been transferred 
 to cover all advances then nuide and which mijjht thereafter l)e 
 made by a third party, he can have no right to claim the benetit 
 of said policy so long as the claim of such third party in possession 
 of said policy remains in dispute and unsettleil.' 
 
 And where a person insured his life and signed a document, 
 directed to the managers of the insurance company, in these words: 
 
 " I give and bc[ueath to the amount stated on the policy 
 
 given on my life by the S. Life Ins. Co., to be paid to none other 
 unless at my rcipiest dated later," and after showing or reading 
 the policy which be retained, he handed the document to the 
 plaintilf remarking: "There, that is as good as a will;" it was 
 held, that on account of its incomiileteness, the transaction was not 
 
 the trust intended was not 
 
 as 
 
 a gift or a declaration of trust, 
 
 irrevocable nor could the paper take effect as a will 
 
 'Sue I'lisos ill Clai'ku on l.ifo Ins., t; 7(i— WilV's iiitei'i'st, ceases, 'rdiiipkiiis v. 
 Levy, S7, Ala. HVi, d.SSSi. .See also ClaiU v. Aliens, dSTT), 11 W. .1. i:t!l, and eases eited 
 there, for Amerieau decisions on .issiicnaliilily ol' lid' |policios. Hill v. rnitecl Life 
 InH. Ass. (IHDM), l'y\ I'a. St. ".ill, for a ease of tontine insnninee In fonu of a trust 
 iissl)j;mnent for iniitiial l)eiielll. 
 
 " Wieksteed v. .'Munro, i:i A. li. \M, {\m\). 
 
 •I 1{. S. Q. art. iMllii. 
 
 M'onway v. Kritannia late Ass. Co., S L.C .1. itlj. 
 
 Mvreh v. Moses, 2:i O. U. ;to7. 
 
 ! |m: -i 
 
Wj 
 
 492 
 
 INSURANCE LAW OF CANADA. 
 
 321. Surrender of life policy obtained by alleged fraud. — lit 
 
 a very recent Ontario case, the surrender of a policy was attacked 
 by the insured's executors on the ground that it had been induced 
 by the fraud and false representation of the insurer. It was con- 
 tended, that the insured was at the time of the transaction under 
 tlic delusion that he would live a long time, and that the defen- 
 dants permitted him to remain under that delusion, knowing that 
 he could not recover, and that this was such fraud as avoided the 
 transaction, but the court refused to set the surrender aside.' 
 
 ' Potts V. Temp. & G. L. Ass. Co. of N. A,, Zi O.K. 73. 
 
i.4 
 
 CHAPTER XIII. 
 
 AGENTS-TIIEIR POWERS AND DUTIES. 
 
 322. Ge.nehal kemarks on thk 
 powers and duties ok a<ients. 
 
 'i'£i. Effect OF ERRORS, misdescrip- 
 tion AND CONCEALMENT, ETC., ON THE 
 
 part of aoknts in killinij up appli- 
 cations or makin(i diahrams — 
 effect of instructions to aoent 
 erroneously delivered, 
 324. General a(ient has no power 
 
 TO UELE<!ATE HIS functions; INTERIM 
 
 receipt issued by solicitind a(ient 
 not hindin(j— agent has no power 
 to vary or waive conditions. 
 
 32.5. Effect of note oiven to aoent 
 in payment of pre.mium. 
 
 320. AiiENT (JRANTINO INSURANCE IN 
 HIS OWN FAVOR. 
 
 327. Cl'STOM OFAllENTSTO (IIVE EACH 
 OTHER ( KEDIT FOR REINSURANCES. 
 
 328. Principal and aoent. 
 
 320. An EN(iLISH DECISION AS TO 
 
 knowledde of acjents. 
 
 3;}0. Recent American decisions 
 on the powers and duties, etl ., of 
 
 AOENTS— POWER TO WAIVE — KNOW- 
 LEIKiE OF A(JENT— AC TION FOR RECOV- 
 ERY OF PREMIUMS ON AlCOUNT OF 
 INSOLVENCY OF COMPANY HAVING 
 BEEN KNOWN TO AOENTS— ACTS AND 
 KNOWI.EIHJE, ETC., OF AdENTs' CLERKS ; 
 DELEOATION OF POWER— FALSE AN- 
 SWERS INSERTED, AND FHAtM)rl,ENT 
 OR ERRONEOUS HTATEMENS MADE HY 
 AOENT — AdENT.s' POWER RE(iARIIINd 
 PROOFS OF LOSS, ETl'. 
 
 3;ll. LlAHILITY OF A(!ENTS' BONDS- 
 MEN. 
 
 322. General remarks on the powers and duties of agents. 
 
 — Tlio large powors given to insuranee agents in the United States, 
 where in many vnacti they represent their eomitaniorf tor all the 
 liur[)()ses of an inHiirance businosH, and can therefore bind them to 
 an almost unlimited extent within the scope of such business, have 
 caused the American cases to he considered unsafe guides in 
 England, where powers of a much more limited character are givt'u 
 to the local agents of insuranee comitanies. ' 
 
 In Ontario, Manitoba and British Columbia, by statutory 
 condition, any i)tficer or agent of the company who assumes on 
 behalf ot' the company to enter into any written agreement relating 
 to any matter connected with the insurance, is deemed j>ri)ii(i fiirie. 
 to be the agent of the comi>any for that purpose, l)ut no iiondition 
 ot the policy either in whole or in part shall l»c deemed to have 
 iteeii waived by the company \inle.-s the waiver is clearly exi»ressed 
 in writing signed l)y an agent of the eomiiany." 
 
 I Wi'stcrn Ass, Co. v. Provinciiil, 2(1 (iriint (I'.C.) ."Kil.— Poricr'n Laws of Ins. |I2. 
 -' Suo mijiiii S 2IS, 
 
 Hi I 
 
494 
 
 INSURANCE LAW OF CANADA. 
 
 ii H 
 
 I •: 
 
 It ina\' be said, generally, that the local agent of an insurance 
 company must be treated as their officer to communicate with 
 persons eftecting insurances, and what he says or does in that 
 capacity, within the proper bounds of his authority, must be held 
 binding on the company.' 
 
 Agents for insurance offices arc no otherwise considered in 
 law than those for other commercial parties, and their acts allowed 
 by their principals cannot be set aside upon the arbitrary refusal of 
 the principal to carry them out.- 
 
 The current of Canadian decisions has been to hold, that 
 knowledge of material facts by the agent is the knowledge of the 
 company.' 
 
 But, if the ai:)plication st.atos that the filling up of the appli- 
 cation by the company's agent makes hin^ to that extent the agent 
 (if the insured, the company is not stopped from setting u[) the 
 defence of mis(lescrii)tion, l)y reason only of the misdescription 
 arising from the agent's error.' 
 
 It has been decided, however, that where an api»lication is 
 at'ceiited by the company, l»ut the premium only credited to the 
 agent in the books of the apiilicuint, the company caiuiot be made to 
 issue a [lolicy or pay on tlie footing of its issue, if pre[iayment of pre- 
 mium is essential and there be no proof that credit was intended.'' 
 
 And the sending of a receipt by the agent, without actual 
 reception of the money, will not complete such a eontract. Tiie 
 receipt is a " mere acknowledgment in abeyance.'"'' 
 
 It may well be implied that general agents in Canada of foreign 
 insurance companies have, as part of their general authority, power 
 to appoint local agents with authority to sign interim receipts, in 
 ai'cordance with the usual course of insurance l)usincss as carried 
 on in tliis countrv.' 
 
 ' MiiilKlfy, .1., ill Ciooilwiii & 'I'lu' LiiiuiiHliiiv V'uw ^: l.ilo Ins. Co., (J.H., 1S7;(. 
 IS L.C.l. 7. - FeiilfV V. Hoiicon Ins, Co., "(iraiit d'C.) IHO. 
 
 ' Livcrimol etc. V. W.vid, 1 S. C. U. liOl. Mcguccii v. I'liu'iiix, 1 S. l'. H. (KHl. 
 (iiMiiiiloiU- V, Man. & .McicliiiiUti iMiU. Fire Ins. Co., l:t I '.(Mi. ."ili:). NimgliliT v. 
 Oltiiwii Ins. Co., Ill r,C K. 121. MroKiin v. Mini, & Mcnlmnis .Miit. I'iri' Ins, Co., 
 21)('.l'. Ill, !li-o\vii v, Ottiiwii, I'M'.tMl. 28.'. Siiii'lalr v. Ciinailiiin Mnl.,r.C.R. 
 200. A'^hfnnlv. Vii'loiiii .Mm., 21) C.I'., i:U. Uciir v. Western, II CCU. .Vill at 
 5(11. I'avsoii.-. V. (.,i\i(H 11 Ins. Co., Ill II.C.U. 271. 
 
 ■t Sovvilen V. Stiiniliinl Kin- Ins. Co., ") A. H. 2WII. Cotnpton \. MiTcantilc Ins. 
 Co., 27 (ir. Itlll. Hliivnnoii v. llasiiiiKs Mnt., 2 ."s.C.U. Illtl, liiit sic Lyon v. Sladacona 
 Ins. Co., H ecu. 172, i»t Qiiinlan v. Tliu I'nion Flro Ins. Co., .'f A U. S7(l, anil sco 
 aupm cliap. X. ^- Walker v. I'rovliicial, 7 Craut (CO 111", S (Irani (CC) 217. 
 
 " S (ininl (CC. ) 211), UobiiiHon, C..I, 
 
 " See ilii.'i mil of .Siroiin, ■'., in Smniners v. Coimiii I'nion .Vss, I'o., (i S.C U. 27. 
 
■ 'tt 
 
 AQKNTS THKIR POWERS AND DUTIES. 
 
 495 
 
 III one case it was held, where a clerk of the iiiBurance com- 
 pany gave a receipt for the premium, that the company were bound 
 though no policy had issued.' 
 
 There is authority for saying, that the communications l)etween 
 the insurers and their agents are privileged, if they form part of the 
 preliminary investigation of the insurers made with reference to 
 the case after the luss.- 
 
 And the Englisli companies doing business in Canada make it a 
 practice to stipulate that such communications are contidential and 
 privileged.' 
 
 ^[any decisions indirectly passing upon the powers of agents 
 will be found in other chapters of this work.' 
 
 It is said in the United States, that it is well, in considering 
 the extent of an agent's authority, to look to his relations to the 
 company in point of place. It he is remote, his usefulness and 
 eflicienc}' might be impaired if he were obliged to refer all (pies- 
 tions to head oftice ; it is fair to presume that a more liberal exer- 
 cise of discretion is permissible to hinitliau to an agent having the 
 same general powers, but residing so near to his principal that 
 reference nuiy be [iracticable and consistent with the success ot the 
 agency." 
 
 Our own Su[ireme Court luis sti'ictly examined and on the 
 facts rejected a claim based upon an interim receipt issued by a 
 broker acting for the company's agent without the company's 
 authority. And this ruling luis been followed in a very recent 
 < Mitario case." 
 
 Delivery to local agents of iioiice ol' tire is sufKcient within a 
 condition re(piiring notice to tlie company, uidess tlic jiolicy otlioi'- 
 wise stipulates.' 
 
 An agent cannot waive a I'orfeitnre in the face of a condition 
 in tln' [lolicythat it shall not attach until the premium is paid, ami 
 that <»nly the [ircsident or secretary shiuild waive a forfeiture." 
 
 ' Pure V.Scott. Imp. Ins Cd., S. ('. IsVll, l' Sti-pliciiV Di.Lri'st ltd; Dnviil \. Noil licni 
 As.s, Co., S. ('. IS77, ill. 
 
 •^ Tac. Mut. I'll. V. HutliTs, 17 I-.i'..I. .iiHi : liraiit v. .lOina Co., II I, C K. IJ.s. 
 
 '■' Si'i.' siiiira S liilO, ' r/'/c iiidr.r vo, A^ri'iils. 
 
 " Itis, Co. V. WilUiiiHoii, 1:1 Wall (r..S. L'2:ii; Kaiiit"- v. llomc Ins. ('o.,!U r.,S. (121 
 
 '■ .Suniinors \. I'oiniri'l I'nion As.s. Co., (I .S.t'.H. IH. ii'lciriMl to ln/rii, tunl Cos- 
 grovo \. Kcysluni' I'. Ins. Co.. (licidi'd at 'I'oionlo, 7lli .Ian., ISII", mit vet rcinnlcd. 
 
 " I'c|i|)ltl V. .N'orlli li. X- Mi'V.. Itlcss iS: (Icdd ( Nova .Scot ia) :;iU. 
 
 ■'Cillionn V, I'nion Mnl., :i I'nu's. iV lliii'li. iNcw llnin.swicUi 111, :;:), .IucoUmv. 
 liiiuitiihli' 17 C, C, (g.H.i :i,), lU do. 4)11. 
 
 Hi 
 
 I ■ ! 
 
 I I 
 
r 
 
 Si 
 
 ^-iii 
 
 it';;] 
 
 < -! 
 
 fWm 
 
 fst: 
 
 m 
 
 496 
 
 INSURANCE LAW OF CANADA. 
 
 In the recent American case of Hardwick v. Siate Ins. Co.,^ 
 the court followed the usual rules as to agent's authority and the 
 right of the assured to assume that, in the absence of knowledge to 
 the contrary, acts and declarations of the agent are as valid as if 
 they proceeded directly from the company ; and the cases quoted 
 by the court are to the same ettect.'^ 
 
 An agent authorized to issue policies binds the company by 
 all waivers, representations or other acts within the scope of his 
 business, unless the insured has notice of a limitation of his powers.' 
 The question in issue is not only, what power the agent did in fact 
 possess, but what power the company held him out to the public 
 as possessing,' A provision in the policy, that agents are only 
 authorized to collect renewal i)remiums upon receipts furnished and 
 signed by the president and secretary, is notice of such limitation 
 of the agents powers ; "' so is a provision in a policy that they can- 
 not waive any of its conditions ; " but a notice, pr'.ited on the back of 
 a policy, that payment to an agent will not be valid without the 
 production of a receipt, is not.' 
 
 There is a noticeable tendency in the reported cases to extend 
 rather than restrict the power of the agents to bind the company 
 by their acts in connection with the contract."" 
 
 A distinction is mjide in the cases between the authority of 
 general and special agents, and it is held, that the power ot a gen- 
 eral agent is plenary as to the amount and nature of the risk, the 
 rate of premium and, generally, as to the terms and conditions of the 
 contract, and he may make such erasures, explanations, memoranda 
 and cndorsc^meiits and give such advice and information modifying 
 
 I 20 Or. 547 (ISlll). 
 
 -Sue also AVi'sleml Hotel & LiiiicI Co. v. Am. Kire Ins. Co., 2'> Ins. L. .1. S.j| UHlKiUind 
 Koberts et ul v. Xortli Wi-sUth Nat. Ins. Co. (Wis. S. C), (U N. \V. Hep. (isUa) lOtS. 
 
 ■' Ins. Co. V. Marnes, 11 Ivan, llll, afj;i'nt inisstiitcil title in the application, l)i'in(4 
 infornieil of the facts,— Ins. Co. v. Honue, 41 Kan. 524, renewal in an nininthorized 
 manner. — Fliicnlx Ins. Co. v. fSpiors, ST Ken. 2.S(!. 
 
 •• C. C. \j. C. 17.'«». Kclectic Life Ins. Co. v. {'"nlircnkinK, til III. 4ti;t at 4(i7. 
 
 ■'' Merscran v. I'li<i'nix .Mut. Life Ins. Co., (MiN. Y. 271. Caloir v. Am. Life Ins. 
 Co.,;»;iN..I. IS7. 
 
 " (Ireen V. l.yi'oniinji Fire Ins. Co. (I'a.) S) Ins. L..I. Sll. C'levcn^jjcr v. -Mul. Life 
 Ins. Co. (Dak.) !t Ins. I ...I. 12!i. 
 
 " McN'eilly v. Continental Mfe Ins. Co., («t X. Y. 2iU 
 
 » Williams v. Can. .Slut. I-'ire Ins. Co., 27 V. C. C, 1'. Hit. 
 Auric. As.s. Co., 42 U. C. (Q. IJ.) 2S2. Wyld v. London etc. In.s. Co., 2:1 (irant Cli. 
 (I'.C.i 442. HastinKs Aim. Fire Ins. Co. v. Slian;ioii. 2 IS. C. U., ;«I4. Kreul/ v. 
 Niagara Dist. .Miit. Fire Ins. Co., l(i V . C. tC.I'.) l.'tl, and see also Clialillun v. Can 
 :Mnt. I'Mre Ins. Co., 27 l'. C. (C. I'.) I.'iO. Soniers \, .Mlienieiim Firi' Ins. Co , i) 
 L.C.l{.,t!I. Davis v. Scottish I'rov., 1(1 I'.C. (C.l*.) 17(1. 
 
 lienson v. Ottawa 
 
M 
 
 AGENTS — THEIH POWERS AND DUTIES. 
 
 497 
 
 or limitiiie; the general provisions of tlie policy and even iueonais- 
 tent therewith, as in his discretion seems proper, before the policy 
 is delivered and accepted or even after, if this be his habit known 
 to the office.' 
 
 The agent dismissed, owing to a legal dissolution or winding 
 up of the company, cannot claim damages.- He takes the risk of 
 any act or neglect of the other officers of the company that may 
 cause dissolution. 
 
 When a person is in fact the agent of the company in procur- 
 ing a policy, a clause in the policy, that persons so acting are 
 agents of the insured, does not change the fact. He is still the 
 agent of the company as to the acts which are done in its behalf.'' 
 
 But where the policy provides not only that the agent sliall 
 be deemed the agent of the applicant and not of the company, but 
 further that the company will not be bound by anything said by 
 the agent, not contained in the application, the Ontario courts 
 have held the clause effective.' 
 
 Though parol proof is inadmissible to vary the terms of a 
 written contract, it is admissible to show that the contract is not 
 the one made by the party. It might be admitted to show that the 
 agent did not correctly take down the insured's answers, that the 
 application is not the instrument of the insured, and generally to 
 prove that the minds of the parties never met on the contract as 
 set down in the policy and application. 
 
 To avoid the contract and resist payment of premiums, there 
 is no doubt, says May, the insured should be allowed to do this ; 
 but when the demand is not only to declare the supposed contract 
 off, but to substitute a new one, holding the (iompany to a risk it 
 did not understand, which fact the insured had 4;iisy means of 
 
 1 Sec I'lises I'iteil in May 2lio, iioti' 1, and .lUo Vim Allen v. l''iiiiucrN' .loiiit 
 Stock Ins. Ci). HIuii. li;*. Ins. Co. V. Tullidjie, :Kt01iio, SI. 'JIO, imd iii/ni, luul 
 I'ilncy V. (Jlcns Falls Ins. ("n. (1S7.")), (!;") N.Y.li. See also Am. Law Ken and Uevlew, 
 Oct. ISDo, 'J. S. S. 051, for a leading article on " Autiiorily of an insnrancc a),'cnl" liy 
 W.C. HodKors ; and Taylor v. State Ins. Co., CiT N. \V. Hep. 'u~ (ISiWli, as to .uillioriiy 
 of awent to correct a i)olicy issued hy hini. 
 
 - People V. (;iol)e Mutual Life Iii.s. Co., !)1 N. Y., 171, 17!t, IHl. 
 
 ' .NauKhlcr V. Ottawa A^-r. Ins. Co., lU I'.C. (Q.H.) llil. Wyld v. London etc. 
 Ins. Co., itCirimtsChy. H:i tU. C.) Henstm v. Otliiua A^r Ins. Co. IL' V.V. 
 ((i. M.) -Jsii. riuon .Mulu.il Lite Ins. Co. V. Williiiison, l:! Wall li:;:i. Coin. I^'iic Co, 
 V, Ives, .V) 111. I(i;t. 
 
 ' Mo(»re V. Com. Mut, I'Mre Ins. Co., 11 I'.C. (Q.H.I 107. .Tolmston v, Nla;;!ir;i DisI, 
 Mat. IiLs. Co., i;t U.C, (C.I'.);t:il. Ulcakley v. Niagara Uist. Mut. Iiih. Co., Ill tirani 
 (U. C. Cll.) litS and ,siu>;v( ^ L'.^Mi. 
 
 32 
 
 
M 
 
 li-aaminpi 
 
 i"ii|iiif 
 
 iiiiii 
 
 
 iH:. 
 
 498 
 
 INSURANCE LAW OF CANADA. 
 
 knowing, then the question is not one of tlie jidniiHsion of parol to 
 show that a diliorent contract was actually made, hut to show that 
 the minds of the contracting parties never met at all. This is, ot 
 ijourse, where the agent is only a solicitor and torwarder. It 
 seems impossible to deduce trom the jurisprudence any certain rule 
 on this point. On the one hand, the courts are reluctant to hold 
 the company on a contract it never uiade ; on the otluT, we have 
 the fact that the company invites the public to deal with its agents 
 in the customary manner, and it knows that it is usual to rely on 
 agents. The amount of litigation on the subject being sufficient 
 proof of till' treipicncy with which men trust them, has Ih-cu held 
 suffii'ient to justity decisions against the compaii}' in the Unite<l 
 States, in those cases where the atjent's nesi'liifence is proved. I'er- 
 hajts the company should tairly be held liable to the extent of the 
 [tremium antl interest.' 
 
 The true rule would seem to be that, wliere there is no usage 
 or special evidence to the contrary, such as evidence of connivance 
 by the company, inipossibility or improliability of discovering tin- 
 error or saving thi> fraud, even if the papc'r liad been read and due 
 cart" excreisi'd, advice or assurance ol the agent ami acts e(|uivalent 
 thereto, that the assured could not be expected to know were not 
 propel' and in good hiith, a usage to let the agent make surveys on 
 his own responsibiliiy, etc., a person is hound to know what he 
 signs, and if by lack of ordinary care, as by not reading thepajier, 
 he misleads the company, he ought not to throw the loss upon it, 
 and should have no more than his premiums and interest. If he 
 acted in l)ad tiuth, he should have nothing, but if he acted in good 
 liiith and witii ordinary can-, the company should bear tlu' luirden 
 of its agent's acts and omissions.-' 
 
 Wheri' the agent making out ilu' apiilicaiion is not the rccog- 
 nize(l agent (»f the company, of course he acts only for the iiisureil. 
 and the latter is bound by his acts. ' 
 
 The (h'cisions of the I'ourtsof Massachusetts and ilhode Lsland 
 a[i|iear to go to siu'li an I'Xti'eme length that they should beacce[pt- 
 ed with caution. Thi'V have iepeale(|ly held, thai even where the 
 
 : .M.iy, II K;. 
 
 - -Miiy, 1 II (i. 1111(1 M'o M.'ii'liii V. Mill. V\rv Jus. (Jo., :i I'li^islcv N.li. l.'iT. Diiijive v. 
 iiit'iillmal Ills. Co. id. SO. Ki'inu'iiy v. do. I U.S.C. (Xova Scoiiai i:t;). iiillliiKtoii 
 I'lov'l Ins. Co.. ;tS.(M{. is-.'. Wiilkiiis v. Hvniill Kig. 11.11. ITS. r^^> I... I. (). IS. 121, 
 l,..l. N.S |-J(i, :il W.K. :t;(7. l''o\vlfr v, ScoUi>,ii Ivniilublc -I-* 1,. .1. Cli. lii") 
 
 ■■> Fool v. .i:iii:i I. ill' Ins. Co. I Daly L's.j. 
 
ill 
 
 AGENTS — TIIEIK I'OWEUS AND DUTIES. 
 
 499 
 
 llT, 
 
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 OOll 
 
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 il'l' V. 
 
 insurers tlK'niselvcs hiul knowledge of and assented to the faet in 
 (question, it wus a good defence to the claim of the assured.' 
 
 Mutual insurance is t'ssentially dift'ercnt from stock insurance, 
 its original design lieiiig to provide cheap insurani;e hy means of 
 local associations, the meml)ers of which shoidd insure each other. 
 Such associations were, in their nature, adapteil oidy (o local husi- 
 ness. They needed nianv bv-laws and conditions not reciuired in 
 stock ccnnpanies, and it was iie(;ossary and eqiiitahle that each person 
 who was insured in them, should become subject to the same obliga- 
 tions towards his associates that he reipiiri's from them towards him- 
 self. If the otHcers had discretionary power as to the terms of the 
 contract, or even as to its form, it is obvious that ditl'erent parties 
 might become niendxM's u[ion different terms and conditions, and 
 thus the principle ot nuituality would be completely abrogated." 
 
 The authorities, therefore, seem to restrict the powers of otHcers 
 of uuilual companies in the matter of waiver to such as merely 
 relate to i-oilateral matters, as proofs of loss, eiv., and deu}- thorn 
 authority to waive express stipidations of their [jolicies or by-laws 
 which relate' to the substance of the contract.' 
 
 Till" suliject of the authority of agents of mutual insurance 
 societies has also been dealt with in Profecdun Life Ttis. Co. of 
 Chicaijii V. Foiitc. (1875), 7'.t 111. 3G1, wliere the ipicstion arose on a 
 post oflice n)oney order, obtained by the assured in due time for 
 the payment ol premium, but which did not reatdi its destination 
 before the expiry of the time (d' grace. 
 
 It has been held, that an agent, liaving general authority to 
 insure the jiropi'i'ty of his principal, has no autiioriry to effect an 
 insurance in a mutual comiiany wheieby he maki's his principal an 
 insurer of others.' 
 
 'i'iie ([Uestion. whether the person procuring the ap[>lication is 
 the agent of the assured or of the company, has vei-y often been 
 ventilated in the United States courts. ( »n t his subject t here luive 
 been a number of recent decisions.' 
 
 ' Hiii'i'i'll V. riiiim Mui . I'iic Ins, ("d,. 7 Citsli. (Mass.) l?."). 
 
 - .May. IKi. ' Itcacli. 7iil. ' Wlilli- v. .Maili.sKii, :i(i N.V. 117. 
 
 •"' Colt's V, .l.'irfis.iii Ins. Co.. i") Ins. I,..I J17(tS!)(i>; Hcriiaiil v. I'nilcd Life Ins. 
 Ass'n, :t:t N . V . Suppl. (!■<!••"»:;:;, liti .NY. ,St. l!i'p. dsil.".) ."iiil ; Davis v. (iranil Kapiils K. 
 Ins. Co.,:t(l N'.Y. .Suppl, 7!i2(ISiii)) ; .Vnierican I'". Ins, Co, v. Itiooksct al.,:i| .\tl. Rep. 
 :t7:t(lS!l(;»; .SclliTsi't al. V. Connn'l K. Ins. Co., 21 Ins. I.., I. (isi),-)i;!."il ; and it was ilccidi'd 
 in liril. .\ni. Ass. Co. v.l"oo|)fr, III I 'at'. Hep. (I.Sii.")) 1 17, llial a tontracl of insiiianci', I'n- 
 It'ii'd into liv one aclinjias .i^ji'iit for liotli the fonipaiiy and tlii' insuix'd, tnny lie avoid- 
 t'd l)y fit her party, if, at tin' tiinc of tlu' contrat'l, hi' did not know of siicli jx^rson's 
 aLCt'niy for I lie other party, or had not, with a lull knowli'dni' of t lit' facts, rat illi'd it. 
 
iii' 
 
 600 
 
 INSURANCE LAW OF CANADA. 
 
 m 
 
 mKi^ 
 
 " ;-■'"! 
 
 Disputes liiivc ropeatocUy amen as to the sufficioney ot evidence 
 to establish the fact of agency.' 
 
 "Attorneys" in a Lloyd's policy has been held to mean 
 " agents." - 
 
 Wliere an insurance agent agreed with a person to look after 
 his risks in tlie company he represented and in others and reported 
 lists to him, showing the amount of his insurances therein and 
 giving him a receipt for money advanced to pay premiums, tliese 
 lists were held inadmissible in an action against the agent's com- 
 pany to show any recognition of the policy.' 
 
 And where the same person is at once agent for the policy 
 holder and the company, the former is bound by a notice to the 
 agent of the camellation of his policy.' 
 
 Persons dealing with insurance companies will be deemed to 
 have notice of the powers of their managers, whatever the mode iji 
 which the company is constituted, so far as tlie constitution of the 
 company defines and limits the same. But merely directory pro- 
 visions therein, which are oidy for the guidance of the directors, 
 do not concern and will not affect persons dealing with the com- 
 pany.' 
 
 And it seems good law that the powers of a general agent are 
 prima facie co-extensive with the business entrusted to his care and 
 will not be narrowed by limitations not communicated to the 
 person with wliom he deals.'' 
 
 A general agent with unlimited powers may waive conditions 
 of policies, such as that suit shall be brought within a certain time 
 after loss." 
 
 It has been said in the United States that, generally, agents 
 of insurance companies authorized to contract for risks, receive 
 and collect premiums and deliver policies, may confer upon a clerk 
 or subordinate authority to exercise the same powers, and that the 
 
 ' Lanck v. Myers, ri^i LeKivl. Iiitell. 2m {im)); Kalir et al. v. Maiicli. V. A. Co., 2.5 
 Ins. 1...I. (lS7(n ";")(); Diclu'i-mau v. Quincy Mut. V. Ins. Co., ;J2 All. Rep. (ISStS) 4S!). 
 Si!e also IJurnluMiner v. City of Leadvil.c (IHiK)), 14 Colo. .518, whero a person was held 
 not to he iiinenahle to a license tax as an " insurance hroker," although he had been 
 comnussioned l)y a company to act as tlieir a^ent. 
 
 - Walker ct id. v. Ueecher, :jt) X. Y. Suppl. J70 llSiW). 
 
 ' Hartford l'\ Ins. Co. v. Reynolds, 'A'\ Mich. 502 scq. 
 
 * U). 
 
 o I'orter's Laws of Ins., 10!). 
 
 "Slumnou v. Core Dist. Mut,,2 IJ.C. App. .'tlW. Ilaslin^s Mnt. Co. v, .Shannon, 
 2S.('.lt. ;t!tl. 
 
 ■ Brady v. Western Ass. Co., 17 C.C. (C.IV) 5<J7. 
 
le 
 
 tlic 
 
 AGENTS — THEIR POWERS AN'l) DUTIES. 501 
 
 service is not of sucli a persoiiiil rliaraiiter as to come iiiidei- the 
 maxim '• (Icli'</a(iis noii jinlest delei/nre.^' ' 
 
 But as \vc have seen, tlie Supreme Court <>t' C^anaila liave not 
 accepted tliis view in its entirety, but have consi(h'reil rather tliat 
 the aifent cannot deU'sjatc liis atithoritv, as eontiih-nce has been 
 reposed in liim personally. - 
 
 The authority ot a general agent is restricted to the range of 
 his employment, and to the acts and representations which a 
 prudent and ordinarily sagacious and experienced ])erson (with no 
 reason to suspect otherwise) might expect him to do or to he 
 authorized to make, in respect of tlie jiarticular business entrusted 
 to him. It would not be expected that an insuranee agent would 
 be authorized to receive a chattel in payment of a prt-mium, or to 
 discharge his own iiulebtedness to tlie assured through it, tor this 
 would be travelling out of the usual course of business. Ihit there 
 is nothing in the course of business (or in the nature of tiic con- 
 tract) to make it unreasonable to take a premium note. 
 
 The mere fact that the agent was going contrary to instruc- 
 tions, does not prevent the inference that the transaction amounted 
 to payment, although it is a circumstance fairly to be considered 
 in determining whether such inference ought in tact to be drawn.' 
 
 The maimer of conducting the business of insurance is so well 
 known, that a iierson mav reasonablv assume that one havinc: the 
 apparent [)Ower of a general agent is not limited l)yhis instructions 
 as to the class of risks he may insure. Persons dealing with such 
 agents in good faith have the right to assume, that they possess 
 the i)ower usually exercised by that class of othcers, and unless the 
 limitation on their authority is brouglit to their knowledge, the 
 contracts made with them will be binding upon the company.' 
 
 A universal agent is one authorized to transact all the l)usincss 
 of his principal of a particular kind or in a particular place. A 
 special agent is one authorized to act only in a specific transaction.' 
 
 ' Kruinin v. Ins. Co., 10 Ohio St. 225; Kuiiey v. Aiiiazoii Ins. Co., :«> Hun. (id: 
 E(iuitiil)le Life Ass, Co. v. I'rohsl, IH N'cl). 52(), .")2S ; CuntiiitMitiil Ins. Co. v. lliickniiui, 
 
 127 111. -.m. 
 
 - Summers v. Cornin"! I'niou Ass. Co., (i S.C.U. 111. 
 
 •' King, J., in The Manufivfturers' Accident lusuniiue Coinpativ v. I'uilsey, 27 
 S.C.K. TO). :!81, reported iii/ra i ;t2r). 
 
 * HuKKles V. Am. Central Ins. Co. of St. Louis (1881)). lU N.Y. ll.'i. 
 
 '' Mechem on iiRency cited in South Mend Toy Maiiuf. Co. v. Dalcota F. & M. Ins. 
 Co., (SO Dak. 1802), .52 N. W. llep. S iO. See also Uoode li al. v. (Icornia Home Ins. Co., 
 2:i S. E. Rep. 74t (ISiKi) and Hartford Fire Ins. Co. v. Orr, 50 111. App. 02'.). 
 
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 502 
 
 INSURANCE LAW OF CANADA. 
 
 There does not, however, appear to br any fixed rule regard- 
 ing tlio use of the vuriouis adjectives, " uiiivi-rsal," " general," 
 " !<peeial," "local," etc., at least as tar as the power of the agent 
 is I'oncerned ; iji many oases it is a distinction without a diifer- 
 ence, and the word " special " is often added in a mere titular 
 sense. 
 
 323. Effect of errors, misdescription and concealment, etc., 
 on the part of agents in filling up applications or making 
 diagrams Effect of instructions to agent erroneously delivered. 
 
 — The Canadian courts have f'retjuently been aiijiealed to to settle 
 disputes between insurance companies and the insured, originating 
 in the agents having misstated or concealed, either intentionally or 
 through carelessness, certain facts which the companies considered 
 sufficiently material to invalidate the contract, and the cases cited 
 hereunder will show the tenor of judicial opinions in this respect.' 
 
 Thus it was decided in one case, that the error of an insurance 
 company's agent, in making and transmitting to the head office a 
 diagram of the buildings insured, by means of which the buildings 
 are described in the policv as "detached"' instead of "connected 
 Avith otlier buildings," cannot deprive the assured of his remedy on 
 the policy, and to a plea setting up that the policy was obtained by 
 false and fraudulent representations as to the building being 
 "detached" and as to the number of its occupants, and that there- 
 by tlie conditions of the polic^y were broken and the plaintift 
 deprived of all benefit under it, the plaintiff was held entitled to 
 answer denying such misrepresentations and alleging the visits of 
 the insurance company's agent to the insured premises and his 
 doings as to the making and transmitting of an erroneous ilia- 
 gram.' 
 
 And in another case, where an insurance policy described the 
 goods insured as "stock ^ insisting of dry goods, etc., while con- 
 tained in that one and a half storey building occupied as a store 
 house, said l)uilding shown on plan on back of application as 'feed 
 house' situate attached to w^^od shed of assured's dwelling-bmwp." 
 the plan referred to had been made by a canvassc- for nsuraiicc. 
 who had obtained the application, and the bui' '' said plan 
 
 marked ' feed house,' did not in any respect ■ .a to the (!■ 
 
 Hcription in the policy, but another building tii >n answ^'red the 
 
 ' See infrn § 330 tor Americivn decisions. 
 
 - Somers v. Athenreum Fire Ins. Co., !) L.C.R. rtl. 
 
mw 
 
 !ii 
 
 AGENTS — THEIR POWERS AND DUTIES. 
 
 503 
 
 (li'siM'iptioii ill ovory way oxci-pt tis to the dosigiiiitioii ' IolmI hoiiso.' 
 The goods insured wore stored in tliis hitter building und were 
 burnt. 
 
 The company refused to pay, aUoging breacli of a condition in 
 the policy that no inflammable materials should be stored on the 
 said premises, as well as misdescription of the Ituildiiig containing 
 the goods insured. In an action on the policy it appeared, tliat a 
 barrel of oil was in the building marked ' feed house ' at the time 
 of tlie tire. The jury fount! a verdict for the plaintiff and a non- 
 suit, moved for pursuance to leave reserved was refused by the full 
 court (the Supreme Court of N'ew Brunswick). 
 
 It was decided, that the non-suit was rightly refused ; that it 
 was evident, that the building in which the goods were stored, wae 
 that intended to be described in thi' policy ; that the building 
 marked ' feed-house ' being detacliod from that in which the 
 goods were, was a suitable place for storing oil which, therefore, 
 was not a breach of the condition ; that the case was a jtroper one 
 for tfie application of the maxim '•\falsa demonstratio non nocet," 
 but if not, the matti^r was one for the jury who had pronounced 
 upon it. 
 
 It was decided further, that the canvasser who received the 
 application could not be regarded as agent of the assured, but was 
 the agent of the company which was bound by his acts." 
 
 In the application for a ]tolicy of insurance against fire it was 
 stated, that there was no encumbrance. Tlie application was filled 
 in by the company's agent. The insured informed him of the 
 existence of a mortgage on the property, when the agent told plain- 
 tiff that, if there was nothing overdue thereon, it was Jiot an encum- 
 brance, and, under this belief, there being nothing overdue, the 
 statement was made. A policy was afterwards issued with con- 
 ditions and variations. 
 
 The fourteenth variation was, that if any agent, etc., of the 
 company shall have written or filled up any part of the application, 
 he shall for that purpose be deemed the agent of the insurer ami 
 not of the company ; and no statement, written or verbal, made to 
 such agent, etc., as to any matter to which the entiuiries in the 
 application extend, should bind the company or affect the company 
 with notice thereof uidess stated in the application. 
 
 ' Supreme Court of Cimacla, Guivrdiuii Ins. Co. v. Coiiiiely, liO S.C.H. 208. 
 
 i 
 

 m^^ 
 
 iii' 
 
 504 
 
 INSURANCE LAW OF CANADA. 
 
 The tirtooiith viiriatioti was, that any thimhiloiit misropreseii- 
 tatioi! contained in the ai)plicatioii, or any i'alse statonu'nt therein 
 respeeting the title or ownership ol' tlie a[ipl it-ant or his 
 circumstanees, or the coneealment of any enoumhrance. or the 
 faihire to notify the company of any mortgage or encumbrance 
 upon or other change in the title or ownership of the insured 
 property rendered the policy void : — Tiie court declared (Gait, J., 
 dissenting), that the defeuiUints were estopi»ed from setting up the 
 avoidance of the policy. Chatillon v. Canadian Mutual Fire Ins. 
 Co., 27 C. P. 450. anil Hastings Mutual Fire Ins. Co. v. Sliannon, 
 2 S.C.R. 394, followed. 
 
 Per Gait. J. — Tiuxt irrespective of the agent's representation 
 l)efore the issue ot the policy, the plaintiff after the issue thereof 
 should, under the fifteenth variation, have notified the defendants 
 of the mortt>;au:e. 
 
 Per Rose, .f. — Tiu; fourteenth variation was unjust and un- 
 reasonahle on the facts of the ca^e, and possibly generally; and the 
 fifteenth variation did not apply ; but, even if applicable, it was 
 similar in terms to section 36 of 36 Vict,, c. 44 (C)nt.) which was 
 considered in Chatillon r. Cainulian Mutual Fire Ins. Co., 27 C. 1'. 
 450. 
 
 Per Cameron, C. J. — Whether the fourteenth variation was or 
 was not just and reasonable, need not be considered, lor it did not 
 profess to provide that the company should not be bound by the 
 agent's representation as to the meaning and effect of the ([uestions 
 in the aiiplication ; and as to the fifteenth variation, it was (Com- 
 petent for the i)arties to deKne, what they understood was meant 
 Ity encuml)rance.' 
 
 Tn another case, it was provided by one of the conditions in 
 the policy sued on, that if anyone should insure his building or 
 uoods and I'ause tlie same to be described otherwise than thev 
 really were, to the prt'judice of tlie company, or should misrepresent 
 or omit to communicate any circumstance which was material to 
 be !nath' known to the i-ompany in order to eiuible them to judge 
 of the risk, such insurance should be voi<l. 
 
 The iilaintifl signed a printed tbrm of application in blank h)r 
 an insurance on a block (if live buildings ami told defendants' 
 agent to make his own measurements and descri[)ti()ii. The agent 
 
 liriiliiiin V. Oiiliirio Mutuiil liis, Co., 11 O.U. ;r>S.— C.F. I). 
 
AGENTS — THEIR POWERS AND DUTIES. 
 
 505 
 
 m 
 
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 ■ 
 
 
 tilk'il u}) the jipplicatiou from an examination and diagram, which 
 lie had made on a previous occasion, and in answer to the qiiestit)n 
 •• is there any otlier fact or circumstance afferting- tlie risk with 
 which it is nocessar}' that the company should l>e nuide aciiuainted," 
 replied " Xo, it is a first-class building in every respect ; although 
 one root' covers all, there is a solid lire brick wall between each 
 store.'" 
 
 The ai)plication contained an agreement that, if the agent of 
 the company tilled up the application, he should in that case bo the 
 agent of the aj)plicant and not of the company. There was not a 
 solid brick wail between the stores, aiul the jury found, that this 
 was a misdescription of a fact material to the risk : — 
 
 It was decided, that the plaintitt could not recover.' 
 
 Where the agent of an insurance com f. ly tilled in an applica- 
 tion for insurance on a l)uilding built of boarusand fixed a premium 
 at the rate demanded on brick l)uilding8, there being no tarift for 
 value for board buildings, the word "boards" was so badly writ- 
 ten that it was difHcult to decipher it, but the character of the 
 building was designated on a diagram on the back of tlie applica- 
 tion, which the agents were instructed to mark with red in case of 
 a brick, and black in case of a frame building. In this case it was 
 in black. At the head office the word intended for "boards" was 
 read '• brick" and the policy issued as on a brick building. 
 
 A loss having occurred, the comjiany, under a clause in the 
 policy, caused an arbitration to be had, but afterwards refused to 
 pay the amount awarded to the insured, claiming that by reason 
 of the error in the policy tliere was no existing contract of in- 
 surance. 
 
 The Supreme Court aftirmcd tht' judgment ot'the court below, 
 that, as there liad been no misrepresentation by the assured and 
 no mutual mistake, the parties were ad idem and the contract was 
 complete, an<l, even if it were otherwise, the company couM not set 
 up this delence after treating tlie contract as existing by the refer- 
 ence to arbitration under the policy.- 
 
 The efh'ct of not mentioning a coal oil shed, when applying 
 for tire insurance, was discussed in Qin'iilioi v. Uiiinn Fire liis. Co.' 
 The circumstances leading to this action wore these : — The first 
 
 ' Sowdi'i) V. Stiuulanl Fire Ins. Cii., 5 A.U. :i!H). 
 
 - Supivini" ("ourt of I'liiiiulii, 'I'lie (.'ily ol l.uiuluii V\vr Ihn, Co. \. Sinitli, 15 H. 
 C.H. (1!». • 8 A. U. ilTti. 
 
 !■ \ 
 
 > i; 
 
iiii 
 
 m^^fi] 
 
 
 506 
 
 INSURANCE LAW OF CANADA. 
 
 statutory condition endor.^ed on the policy provided tliiit, if the 
 insured misdescribed his buildings or goods to the prejudice of the 
 company, or misrepresented, or omitted to communicate any mat- 
 erial circumstance, the insurance relating thereto should be void. 
 
 The second statutory condition provided, that the policy was 
 intended to be in accordance with the application, unless the com- 
 pany should point out the difference relied on, with a variation 
 added thereto that such application or any survey, plan, or descriii- 
 tion ol the property to be insured, should be considered a part of the 
 policy and every part of it a warranty by the insured, but that the 
 company would not dispute the correctness of any diagram or plan 
 prepared l)y its agent from a personal inspection. 
 
 The twentieth statutory condition, as varied, provided that, in 
 case any agent of the company took part in the preparation of the 
 application, he should, with the exception above provided in case 
 of a diagram or plan, be regarded in that work as the agent of the 
 applicant. 
 
 By the ajiplication, which was signed not by the applicant in 
 person, but through the agent of the company, the insured was 
 required to make known the existence of all buildings within 100 
 feet of the insured premises, and it ai)peared that the insured had 
 omitted to make known the existence of a small building used for 
 the storing of coal oil and material, Avithin such distance, but ol 
 the existence of which the applicant was not at the time awiire. 
 
 A diagram was made and filled in by the agent and signed l)y 
 him in his own name as well as that of the applicant, wliieli con- 
 tained no reference to this building. The diagram was not made 
 from a personal inspection at the time, l)Ut from previous inspec- 
 tion and the knowledge tliereby acquired, as also an intimate 
 knowledge of the property which he passed three times eaeh day, 
 and tlie agent, at ttie foot of the application, stated that he had 
 nnule a persmnd survey of the risk : — 
 
 The court decided, reversing the judgment of tlie court below, 
 (31 C. V. 6l(S), that, under the conditions and circumstances above 
 set forth, the insured was relieved from the effect of his omission to 
 make known the existence of eucii coal oil slieil ; that the inspec- 
 tion by the agent need not be one nuide for the purpose of such 
 insurance, provided a personal inspection did take [tiai'e ; and that, 
 under the facts and circuinHtances a[>itearing in the case, the com- 
 pany could not dispute the correctness of the answers given by 
 
■ !. 
 
 AGENTS — THEIR IMWERS ANI> DUTIES. 
 
 507 
 
 insured, whetlier his answers upon tlio application for insurance 
 were to be treated as warranties or representations only. 
 
 Inaccuracy in stating measurements on the diagram was the 
 cause of another action in Ontario, decided ultimately by the 
 Supreme Court of Canada in favor of the assured. In tliis case,' 
 CM., appellant's agent, solicited and prevailed on T. S. to insure 
 his premises with the appellants. Previously he had examined the 
 premises to be insured, and on the 22nd April, 1874, T. S. signed 
 the application which C. M. had caused to be tilled up and U[ion 
 the back of which was a diagram purporting to rf'[iresent the exact 
 situation of the building in relation to adjoining b\iildings. T. S. 
 stated at the time of signing the application, that the distances put 
 down in tiie diagram were not accurate. C. M. promised he would 
 go to the property and nuikc an accurate measurement of the dis- 
 tances. Hy one of the conditions of the policy it was provided, 
 that, it an agent should till up the application, he should be 
 deemed to be the agent for that puriiose of the insured and not of 
 the company, but the ('ompany would be responsil)le f(U' all surveys 
 made by their agent' personally. 
 
 The Supreme Court athrnu'd the judgment of the Court of 
 Error and Appeal, that, with respect to the survey, description and 
 diagram, the assured was dealing with C. M. not as his agent, but 
 as the agent of the company, and that therefore any inaccuracy, 
 omissions, or errors therein, were those of the agent of the com- 
 pany, acting within the scope of his deputed authority, and not of 
 the assured. 
 
 In Provincial Assurance Co. v. Rot/ - the company [tleaded, that 
 the insured had violated one ot the conditions of the ]i()li(y. oblig- 
 ing him to notify tlie company of any additional assurance ctfecte<l 
 on the sanu' property. The respondent, representing the assured 
 as assignee, answered, tliat tbi' company had wiiivc(l tliiit liy a 
 setth'UU'nt made tbrougli tlieii' ag(Mit. 
 
 The difhculty arose from an error in the triuisniissioii of a 
 telegram sent by the company from T(n'nnto to its agent at (JiU'bec. 
 The various I'onipanies iulerestcd wei'e to meet iiud agree as to ii 
 settlement of the claims, and llu' company telegraplied tlieir agent 
 instructing liim to "decline" to join in the meeting or the settlement. 
 Tlu' telen'ram, bv error in transmission, was made to read "decide"' 
 
 I lliisiiiins Milt mil !•'. Ins. Co. v. .Slmniion, 'J SC.IJ :tin 
 •^ 1(1 1M-. lU;), Q.n. IS7!'. 
 
ii^ 
 
 111 
 
 508 
 
 INSURANCE LAW OF CANADA. 
 
 instead of "docliuo," and the airent accordingly joinod in tlic 
 Kettlcniont. 
 
 The eunrt was of opinion, that the conipany nnist ho l)onnd 
 hy it, as the agent was acting within the scui)e of liis instructions 
 at the time. 
 
 324. General agent has no power to delegate his functions ; 
 interim receipt issued by soliciting agent not binding— / grent 
 has no power to vary or waive conditions. — Where an action was 
 hrouglit on an interim receipt, signed l)y one S., an agent tor the 
 respondent company at L., one of the pleas was, that S. was not 
 respondent's duly authorized agent as alleged. The general 
 managers of the coni]>any for the province of Ontario had 
 appointed by a letter, signed hy them both, one W. as general 
 agent for tlie city of L., iuud S., the [terson by whom the interim 
 recei[it in the present case was signed, was employed by W. to 
 solicit applications, but had no authority from, or correspondence 
 with, the head office of the company. 
 
 In his evidence S. said, he was authorized by W. to sign 
 interim receipts, and the jury found he was so authorized, lie also 
 stated, that W., one of the joint general managers, was informed, 
 that he (S.) issued interim receipts, and tliat tlie former said, he 
 was to be considered as W.'s agent. There was no evidence tliat 
 the other general manager knew wliat capacity t?. was acting in. 
 It was decided, aftirming the judgment of the Court of Appeal for 
 Ontario, that W. had no power to delegate his functions, and that 
 S. had no authority to bind the respondent company ; tlnit the 
 general agents, being joint agents, could only Idnd the respondent 
 company by their joint concurrent acts, and the appointment of S. 
 as agent hy W., without the concurrence of the other general 
 mamiger, would not have been sufficient.' 
 
 In another Ontario case the facts were as follows : — The defen- 
 dants issued a policy of insurance against fire, dated 22nd April, 
 1889, upon a liouse of the i)laintilf. The application signed by the 
 plaintitt' stated, that the house was occupied as a ri'sidence by the 
 plaintiti's son. A lire took place on the 14th November, 1889, at 
 which diite, and for six months previously, the house had l»een 
 unoccuiiied. One of the spet"ial conditions endorsed upon the policy 
 was t hat, if a luiilding became vacant or uiu)ccui)ie(l and so 
 
 I Suprcmi! ("onrt of ("tiiiiKlii. Siiinmt'iH v. Coin ml I'liion A^s. Co., ll S.l'.H. Ill, and 
 SCO CofUlinrn v. Urilisli Am. .\ss. Co., Ill (). H. "il.'i. 
 
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 licv 
 
 so 
 
 AGENTS — THEIR I'OAVERS AND HUTIES. 
 
 509 
 
 romaincd for ten days, the ontire policy sliould be void. The 
 plaintift' and his wife swore that, when tlie agent came to him and 
 drew the application, lie asked the plaintiff if there was any one 
 in the house at the time, and the plaintiH'told him, that his eon was 
 living there at the time, but was going to leave in about two 
 weeks, and asked it that would make any diflerence, and was 
 informed by the agent that it would not. By a clause in the 
 application, the plaintiff agreed, that no statement made or infor- 
 mation given by him prior to issuing the policy to any agent of 
 the defendants, should be deemed to be made to or binding upon 
 the defendants uidess reduced to writing and incorporated in the 
 application : and on the margin of the application there was a 
 notice, showing that the jtowers of agents were limited to receiving 
 jiroposals, collecting premiums, and giving the consent of tlie 
 defendants to assignments of policies. The court was of opinion, 
 that the special condition referred to was not an unreasonable one, 
 and that the agent had no jyower to vary it ; and an action to 
 recover the amount of the loss was dismissed. The plaintill'at the 
 trial sought to give evidence of certain transactions between the 
 agent of the defendants and a brother of the plaintiflf, for the pur- 
 j)Ose of showing that the plaintiff, having become aware of them 
 before the applit^ation made by him, was justified in believing, that 
 the defendants did not regard the condition as to occupation as a 
 material one, and it was further held, that this evidence was prop- 
 erly re'n'cted.' 
 
 And in Ba'dle. v. Pi'orinrial fits. ('<*.,' it was decided, that an 
 agent of an insurance company, whose powers are limited to 
 receiving aj)plications for insurance for transmission to the lioad 
 office, and to the collecting of premiums, has no power to waive 
 any of tlu" conditions of the policy. 
 
 325. Effect of note eriven to agent in payment of premium.— 
 
 In the very recent case of Mdimfdi'tKrers Accidciif fns. Cn, v. 
 Pad.sei/^^ the company repudiated liability on the ground that the 
 policy had exjjired and liad not l)ei'n renewed. Tlie evidence sub- 
 mitted by the })laiutifl showed, that the agent had reipiested the 
 assured to renew the |i(ilicy and bad received il^l.OO in cash and a 
 promissory note for »^ 15.00 fur the balance of the prciniuni, giving 
 
 n 
 
 I I'ccU V. A^'rifultuviil Ins. Co., H>(),1{. UK g.It Il.^i'i' iils<i MolViit v. lU'liamc 
 iMiiliiiil MlV Ass. Co., log. It, .Vil. 
 
 ')>\ I,.C..I liTI (IsTTl. ' -JT S. C. It. :i7l. r.'fcrn'd lo sufirii ^IVIi. 
 
u 
 
 ?• Jfit 
 
 510 
 
 INSURANCE LAW OF CANADA. 
 
 m 
 
 a paper purporting to be a receipt. The agent's evidence, on the 
 other hand, was to tlie eliect that, while the ntjtc was taken for a 
 portion of tlie premium, it was agreed tliat there was to be no in- 
 tjurance until the note was paid ; that he gave no renewal receipt 
 and was paid no cash. The note was never paid, but remained in 
 possession of the agent, tlie company knowing nothing of it. 
 According to the conditions of the policy no lial)ility attached until 
 the premium was paid, and a renewal receipt was to be printed in 
 office form, signed by the managing director and countersigned by 
 the agent. Instructions had l>een given the agents some years be- 
 fore this action, not to take notes for premiums, as had been the 
 practice theretolbre. 
 
 The Supreme Court of Canada atHrmed the judgment of the 
 Supreme Court of ISTova Scotia, Gwynne, J., dissenting, and decid- 
 ed, that the assured having no knowledge of any limitation of the 
 agent's authority, might tliirly expect that the latter had power to 
 take a note, and the fact, that the agent disobeyed instructions, 
 could not atfect the inference that the act was within the scope of 
 liis employment. 
 
 It may be stated here, that the judgment in the case o{ Flem- 
 ing V. The Londi))i d- L<uicashire Ins. Co., reported supra § 80, and 
 in which case also the decision turned on the effect of a note given 
 in payment of premium, has been reversed by the Privy Council ' 
 since the first part of this work was put in press. There is a dif- 
 ference to be noted between these two cases. In Mcmufacfurers' 
 Accident I»s. Co. v. Pudse;/, the note was held accepted by the 
 agent as representative of the company and on their behalf!, it be- 
 ing made in favor of the company, although the agent was not 
 authorized to take such a note ; while in Fleuiiiuj v. London ,i- 
 fjnnca.shire Ins. Co., the notes were payable to the agent personally, 
 who sent his own note to the comjiany. 
 
 The judgment of their Lordships was delivered by Sir Henry 
 Strong, who said ; — " I see no evidence to sustain the assumption 
 that the notes were placed in the hands of White, the company's 
 agent, with the object of negotiating them, and paying the premium 
 out of the proceeds, the onus of proof was upon the respondent 
 (Fleming) to show that the premiums had l)een paid, and this she 
 had entirely failed to ilo."' 
 
 ' 13 Auguht, 1S1I7, iKil yt't ix'jxirii'd. 
 

 AGENTS — THEIR POWERS AND DUTIES. 
 
 511 
 
 ot 
 
 y, 
 
 1 i-y 
 oil 
 
 s 
 nil 
 ■lit 
 
 ic 
 
 326. Agent granting insurance in his own favor. -It has 
 
 been hold, that the agent ot aiimsurance company cannot, without 
 the express sanction of his principals, grant an insurance in his 
 own favor binilingon the company ; and the same principle prevails 
 in the case of a second insurance, although the prior policy had 
 been gniiited with the express sanction and approval of the com- 
 pany.' 
 
 327. Custom of agents to give each other credit for re- 
 insurances. -Where the defendants executed polices acknowledg- 
 ing the receipt of the premiums for re-insurances, which their agent 
 
 ■ at St. -Tohn had accepted, and sent the policies to him for delivery, 
 liut afterwards, hearing that a loss liad occurred and that the 
 premiums had never been paid, they instructed him not to deliver 
 the policies : — 
 
 The [ilaintiiis alleged, that it was the custom of agents to give 
 each other credit for such premiums and to settle at the end of the 
 month, when the balance, if any, was handed by one to the other ; 
 but no knowledge by defendants of such a course of dealing, nor 
 such a course of dealing on the part of their agents, was proved, 
 and it was shown that their agents had no authority to re-insure 
 except upon payment of the premium : — 
 
 It was decided, affirming 20 Chy. 0(31, that the detendants 
 were not liable : that if such a custom had been proved to exist, 
 it woulil not be binding on the company, unless authorised by it, 
 and also, that the defendants were not bound by their admission 
 on the policy of the reciupt of the premium. -' 
 
 328. Principal and agent. — in the cases re[iorted in the pre- 
 ceding paragra[ihs of this cliapter the agent a[tpeiire(l in his qiuilily 
 of midiUeman, and the (piestion was as to how far bis acts or 
 knowledge affected the two contracting parties, lint ditlereiices 
 have, of course, also arisen between the companies on the one part, 
 and their agents on the other, requiring for their settlement the 
 intervention of the courts, and these ditferences have mostly taken 
 
 ' Wliili'V. Liuicasliirt' [us. i\i., 27('liy. (11.— See jiisi) \Vil(lln'i>?er v. Iliiilfoid 1''. 1. 
 Co. (Miss. S.C.), 17 SoiUh. Hop. (IS'.I,")) :is:!, lO CVmiUmI L. ,I. (1S(».-)) 112, ii.s to iiKoiit hold- 
 inn Kooils as ri'i'i-ivor; mul /iiiuiicniitiiin v. Dwt'lliii^j-lloiise Ins. Co. of Boston 
 (Midi. S. C), (iS \.\V'. Uep. (IS(lil) 21."), iijiont's ))oik'.v on his own i)ropi'rI.v must hi' iip- 
 provi'il l)y tlie conipaii.v liefore it, constituli's ii contnul. 
 
 - Wi'.sliTii Ass. Co. V. I'roviniial .\ss. Co., 5 .V. I!. I'.HI. -In Mcrolianrs Ins. Co. 
 V. fnioii Ins. Co., .")S 111, App . (ill, il was decided that paiol i intracts for leinsnr- 
 anic niado l)v audits ai'C valid. 
 
 1 i ji .| 
 
 r i; 
 
512 
 
 INSURANCE LAW OF CANADA. 
 
 I iij ' it 
 
 ii- 
 
 i-iii 
 
 the form of question of commiesion, termination of ajj^onoy, or 
 collection of premiums etc. 
 
 • In Eawlv>(js v. Citizens Ins. <t- Investment ('<*.' it appeared, that 
 appellant, in February, 1869, agreed to serve respondents as 
 mamiger of the life and guarantee departments of the respondents' 
 business, at a salary of $2,000 and a commission of ten per cent on 
 the net balance carried over on the 31st December of eaih year in 
 the life and guarantee insurance department, after payment of all 
 losses and expenses therein, the said agreement to date from and 
 after the first of May, 1869, with a free dwelling on the premises 
 of the respondent. Appellant entered into the service of respon- 
 dents as manager under such agreement and contiinied to act for 
 them from May, 1869, to May, 1870. The appellant then con- 
 tended, that the net balance in the guarantee department whii-h 
 should have been carried over, and upon whieh he was entitled to 
 his commission often per cent, from the 31st December, 1869, was 
 $12,469.68 and in lieu the respondents erroneously made the net 
 balance $7,154.64, by deducting therefrom certain losses, etc. 
 
 The court decided, that he was not entitled to his 10 p. c. on 
 accounts unsettled on the 3l8t December, and his elaim nnist l)e 
 reduced in proportion.'- 
 
 The question whether a person may claim commission tor 
 having canvassed for a life insurance contract, finally effected by 
 another, was discussed in an action recently decided by the 
 Superior Court at Montreal. Here, the jilaintiff Wiis ccssionaire 
 of one F. X. Major, who was a duly appointed agent of (lefciuliiiit 
 for securing aiiplications for membersliiji. The terms ot his agree- 
 ment were, that he was to have eight dollars for each thousand 
 dollars of insurance on the [tlan described. One Rasconi had liecii 
 canvassed for a considerable time !)y Major. Finally he applied 
 to defendant for two life policies of $10,000 each, which ap[ilicati()n 
 
 18R.L. :«W. Q.U. 187(i, 
 
 2 Sec hIso AVlu'iit.fiold v. Bcftl, 40 \.Y. Suppl, (18!Hi) TIK), wlicri! it was Miiil, tliat 
 an iigcnt cannot recover conlInis^ion on jireniiunis uncollected. Madden v. K(|nit. 
 Life Ass. Sue. (N. Y. City Superior t'oiirt), :t:i N . V. Suj)])!. (1S!C)» ?.">:;, m \. Y. Si. 
 Hep. (lS!t")) Tit, where ajient was lield to lie entitled to cniuniissio?!, if coniiiaiiy 
 refused to accept the risk without any reason. — Male v, Urooklyu L. I. t'o. (ISST), hi 
 Hun. 271. wlu're axenl was entitled to conimission on renewals as ))er a^rreenient 
 after ternunation of contract by nnilual consent . — Mechanics' & Traders' Ins, Co. v. 
 AIcLain, "20 South IJep. (ISihW 27S, as to liahility of company for discharge of agent in 
 violation of aureenient.— Horcn v. Maidiatlan U. Ins. Va),,'J,'> Ins. L. .1. (iSDi)) Siil, 
 wlu're it was stated, that a company i^; not liahli' to Hul)-af.;etit for services rendered 
 to Kcni'ral anient. 
 
■HI 
 
 1 
 
 AGENT?! — TIIEIU POWERS AND DUTIES. 
 
 513 
 
 was accepted uiion payineiit of !*1(J0, twenty dollar,- to Major and 
 the balance to defendant. 
 
 riaintift contended, that .NTajor secured the ai>iilicati()n and 
 was ciititletl to tlie balance of §140 as his commission. Major 
 transferred his claim to plaintilf, of whicli transfer defendant had 
 due notice. Defeiuhint a[)peared by counsel but did not plead ; 
 but Bessette, as general agent of the com[)any, petitioned to 1)0 per- 
 mitted to take up the instance. This he was allowed to do, and in 
 his intervention he set forth, that he was the person who really 
 etiected the insurance and was entitled to the commission ; that, 
 nevertheless, as Major had done some work in sending Rasconi to 
 tVie defendant, an offer of §60 had l)een made to him, which, with 
 the $20 already received, made §80, e([ual to one halt of the com- 
 mission. The otter was rejected and was renewed with the plea. 
 
 The facts were, that Major had been canvassing Rasconi tor 
 over a year, l)ut without success. lie filled u|» a blank application 
 at the eiul of that time, which Rasconi declined to sign, but said 
 that he would go to the head office and there get certain infor- 
 nnition. He did go to the head ofHce and had an interview with 
 the intervening i)arty, but without coming to any understanding. 
 He endeavored to secure from Bessette part of his commission. 
 lie returned again and IV^ssette induced him to take out the 
 policies. The transaction was undoubtedly completed by Bessette. 
 lTn<ler the circumstances, Bessette was not bound to nuike any 
 offer to Major, and, in tendering him one half ot' the commission, 
 he more than complied with the requirements of the law. Tlu; 
 tender was declared sufficient, and for the balance plaintifi's action 
 was dismissed.' 
 
 A decision regarding justifiable dismissal of an agent was 
 lately rendered in Ontario and affirnu'd by the Supreme Conrt of 
 Canada. The case in question arose on the following tacts : — By 
 agreement in writing the plaintifls became chief agents for Ontario 
 of the defendants, doing ordinary acciitcnt, plate-glass and 
 cmjtloyers' liability insuratice. By one clause in tin- agreeiniMit the 
 plaintiffs engan'cd to iiillil conscientiously all the duties assigned 
 to them, and to act constantly for the best interests of the ddcn- 
 dants, and by another the agrei'inent was to continue from year to 
 
 ' I'ii|iim'iui V. Aim. lii's. I'liiul Life Ahs'ii & lius.si-llo, llh .May, 1S!I7, Ciiiraii, .1., 
 iiol jt'l reported. 
 
 33 
 
(J 
 
 
 
 i-riiffl 
 
 1 
 
 1 ;■; 
 
 ;r':il!l!!l 
 
 
 ii' 
 
 ■ ■ < ' i 
 
 ■i 
 
 ■: liii^ 
 
 514 
 
 INSURANCE LAW OF CANADA. 
 
 year, subject to termination by eitlier party on giving three months' 
 notice to tlie other. Shortly after they became agents of the 
 defendants, the plaintiffs accepted the agency for Ontario of the 
 Lloyd's Plate-Glass Insurance Company, and on refusing to give 
 it up on demand of tlie defendants, the plaintiffs were dismissed. 
 The court decided, that the acceptance by the plaintifts of the 
 agency of the rival company, by which they would be |»revente<l 
 from conscientiously fulfilling the <luties assigned to them by the 
 defendants, was sufHcieiit justification for the dismissal.' 
 
 It is a generally accepted rule, that an agent instructed to 
 receive payment cannot accept anything but money. On this 
 principle, therefore, and also in view of II. S. O. (1877) c. 161, s. 
 34, and of the fact that tlie renewal receipt in cpiestion con- 
 tained a notice, that it would not be valid uidess dated and counter- 
 signed by the agent on the day on Avhich the money was paid, it 
 has been ruled that, where in consideration merely of a setting oft 
 of debts as between the agent of a company and a policy holder, 
 the former wrongfully delivered a renewal receipt to the latter, the 
 receipt ilitl not biiul the company, and the policy lapsed. - 
 
 In an action on a joint note for balance due it ai)i)oared, that 
 •T. II. S. was a local agent for an insurance company and collected 
 premiums on policies secured tlirough his agency, remitting moneys 
 thus received to the branch office at Toronto from time to time. 
 On Ist Jai^uary. 1890, he was behind in his remittances to the 
 amount of $1250, aud afterwards became further in arrears, until on 
 the 15th of October, 1890, one "W. S. joined him in a note for the 
 $1250, for immediate discount by the company, and executed a 
 mortgage on his lands as collateral to tlie note anil renewals that 
 
 ' Eastmure v. Caiiadii Accidt'iit Assuf.ince Co., 22 A. U. 4(18, allirmiHl by .Siipi'oiiie 
 Court of Canada, 25 S.C. R. (iitl.— Sec also Rice v. Fidelity & Cas. Co., 1 Lnokawanna 
 L. N. Ill, and Karmier v. I'nion C. L. Ins. Co.. 2 Oliio Decisions, (mS, as to rishl of 
 company to terminate aReney. Franzen, assignee, v. Zimmer, Ii.') N.Y. Snppl. 012 
 (lH((.i). for termination of ageiiey l)y insolv('ney of company, and wliere anent was 
 lield to liave no authority to cancel policies and pay rebates. — RurliiiLtton Ins Co. v. 
 'L'iirelkeUl, :U S.W. Rep. (ISi).)) ai"), as to binding power of aiiont's acts after revo- 
 cation of a/ency without notice thereof to assured. 
 
 - Fraser v. Gore Dist. Miit. Fire Ins. Co., 2 O.R. Uli Ch. D., and sanu' holding in 
 Citizens Ins. Co. of Canada v. Bourgui(j;non, M.L.R. 2 Q.B. 22, and see as to llllin).? 
 up of application by a.ifcnt, Sowden v. Standard Fire Ins. Co., .5 A.R. 2iH) ; Quinlan 
 V. Union Fire Ins. Co., S A.R. :{7li : (Jraliam v. Out. Mut. Ins. Co., 11 O.R. :!."iS ; and 
 as to assent of a;^ent to assignment. .Mi Queen v. Phicni.x Mut. Fire Ins. Co., 1 S.C.R. 
 (ilia ; and as to notice to agen'. Rilliusiton v. Prov'l Ins. Co. of Canada, H S.C.R. 1.S2 ; 
 Klein v. I'nion Fire Ins. Co., :i OR. 2:U. 
 

 AGENTS — THEIR POWERS AND DUTIES. 
 
 515 
 
 might be given, in which it was (leclarod that payment of the note 
 or renewals or any part thereof was to be considered as a paymiMit 
 upon the mortgage. 
 
 Tlie lonipany charged J. II. S. with the bahmce then in arroar.->, 
 which inchided tiie sura secured l>y the note and mortgage, and 
 continued tlie account as before in their Kidger, charging J. 11. 8. 
 with premiums, etc., and the notes whicli they retired from time 
 to time as they became due, and crediting money received from J. 
 H. S. in the ordinary course of their business, tiie note and its 
 various renewals being also credited in this general account tor 
 cash. W. S. died on the 5th December, 1891, and afterwards the 
 company accepted notes signed by J. II. 8. alone tor tiie full am- 
 ount of hi?, 'ndebtedness, which had increased in the meantime, 
 making dcl)it and credit entries as previously in the same account. 
 
 On the 31st July, 1893, J. II. S. owed on this account a balance 
 of !$192(3, which inclmled §0198 accrued since Ist .January, 1890, 
 and after he had been credited with general payment there re- 
 mained due at the time of trial $1009. The note VV". 8. signed on 
 15th October, 1890, was payable four months after (hite with 
 interest at seven per cent, and the mortgage was expressed to be 
 payable in four ec^ual instalments of §312.50 each, with interest on 
 unpaid principal. 
 
 The court were of o[»inion, Taschereau & Qirouard, .F.J., dissent- 
 ing, that the giving of the accommodation notes, without reference to 
 the amount secured, had not the effect of releasing the surety as being 
 an extension of time granted without his consent and to his i)re- 
 judice ; that the renewal of notes secured by the collateral mortgage 
 was prima facie an admission that, at the respective dates of renewal, 
 at least the amounts mentioned therein were still due upon the 
 security of the mortgage ; that, in the al)sence of evidence of such 
 intention, it could not be assumed that the deferred payments in 
 the mortgage were to l)c exi)edited so as to be eo instaitti extinguish- 
 ed by entries of credit in the general account which included the 
 debts secured by the mortgage ; and that, there I»oing some 
 evidence that the moneys credited in the general account repre- 
 sented premiums of insurance which lid not belong to the debtor, 
 l)ut were merely collected l)y him an<i remitted tor policii's issued 
 through his agency, the rule in Clayton's case as to the appropria- 
 tion of the earlier items of creilit towards the extinguishment of 
 the earlier items of debit in the general account would not apply. 
 
ii 
 
 M! 
 
 > ' ' 
 
 
 i 1 
 
 
 |l 
 
 1 
 
 • -Y 
 
 
 11 
 
 gjii 
 
 ■!;, I 
 
 510 
 
 INSURANCE LAW OF CANADA. 
 
 ami tliere shonltl luivo l>eeii a rotereiicf to the Master to taki- tVio 
 acoouiit. 
 
 A oaso- lately siibraUtod to the Siipronic Court of ('aiiada, 
 involving the question of the right of a life ar«suranee company to 
 change its medical examiner, although not strictly coming under 
 tlie heading of " agents " is of suliicient general interest to iind a 
 place in this chapter. The particulars are as follows : — 
 
 The medical statt of the Eiiuitable Life Assurance Society, of 
 Montreal, consists of a medical referee, a chief medical examiner 
 and two or more alternate medical examiners. In 1888, L. was 
 appointed an alternate examiner in pursuance of a suggestion to 
 the manager l)y local agents that it was advisable to have a French 
 Canadian on the statt. By his commission, L. was entitled to the 
 privilcse of such examinations as should be assi</ned to him bv or 
 required <luring the absence, disability or unavailability of the chief 
 examiner. After L. had served for four years it was found, that 
 his methods in holding examinations were not acceptable to the 
 applicants, and he was reipiested to resign, which he refused to do, 
 and another French Canadian was appointed as an additional alter- 
 nate examiner, and most of the applicants thereafter went to the 
 latter. L. then brought an action against the company for damages 
 by loss of the business and injury to his professional reputation liy 
 refusing to employ him, claiming that on his appointment, the 
 general manager had promised him all the examinations of French 
 Canadian applicants for insurance. lie also alleged, that he had 
 been induced to insure his own life with the company on the 
 understanding that the examination fees would be more than sufli- 
 cient to pay the premiums, and he asked for repayment of amounts 
 paid by him for such insurance. 
 
 The court decided, attirming the decision of the Court of 
 Queen's Bench, that by the contract made with L. the company 
 were only to send him such cases as they saw lit, and could dismiss 
 him or appoint other examiners at their pleasure ; that the man- 
 ager liad no authority to contract with L. for any employment 
 other than that specified in his commission ; and that he had no 
 right of action for repayment of liis premiums, it being no condi- 
 tion of his employment that he should insure his life, and there 
 
 ' Supreme Court of Canada, Agricultural Ins. Co. v. Sargeant, 2() S.C.H. 29. 
 - Laherge v. K(|uitable Life As.s. Soc, 24 S.C.R. 59.5.— And tsee to same elFeet 
 Carney v. N. Y. Life Lis. Co., referred to in 45 Journal of Commerce, 10. 
 
[^'' 
 
 AGENTS — THEIR POWERS AND DUTIES. 
 
 T)!' 
 
 hoiiiir no connection between the contract tor in!*uriuic<_' iind tliat 
 tor i-mploynient. 
 
 329. An Eng'lish decision as to knowledge of agents. — In u 
 
 recent Knglish case,' wlicre it ai)i)earetl tlnit an illiterate person, 
 l)lin(l in one eye, liad taken ont an accident insurance policy wliicli 
 provi(U'd tor the payment ot' i;250 for, i)itc>' a^/", the loss of one eye. 
 and £500 t()r total l)lin(hiess, and where the assured lost his remain- 
 ing eye l)y an accident, the t-ourt ruled, that the agent having been 
 aware of the applicant's physical intirmity, the company was l)ound 
 thereby, and Judgment was accordingly given for the full amount 
 in favor of the assured. 
 
 380. Recent American decisions on the powers and duties, 
 etc., of agents — The courts in tlie United States arc constantly 
 being resorted to in order to determine disputes turning on tlie 
 question of the relation of agents to the contracting [larties and how 
 far they are aftected by acts and statements, admissions or 
 omissions, on the part of persons authorized to, or assuming the 
 power of, acting on belialf of tlie company. A reference to 
 American cases- will show inter alia what questions have been 
 submitted to the decision of tlie courts. 
 
 1 riawdcii V. t.dn. Kdiiib. & Glasgow L. Ins. Co., C. A., (ISUlii 2 Q.Ii. 5:jl. 
 
 - XiUioniil LifoMfituiity Ins. Co. v. Whitixere, C) \. E. He]). ilO'i dSSKii. payment 
 of premiums to agent tacitly admitted by company. — Iluglisiui v. Hardy »' o/., Ii4 
 N. AV. Rep. :!S<) (IS!),")), advance of iircmitims hy apents not inconsistent witli their 
 duties.— First Xat. Hank of Dnhucnie v. Cetz : Getz v. Ei|uit. I.. A. See. <Y a/.. (U \. 
 W. Re]). (isy5), 7iH», as to liability of company for (b'fanlt of a^;cnt in failing; to return 
 premium note upon its pauiieiit. - New Hampsliire Ins. Co. v. Kennedy if al.. 'M'< S. 
 W. Rep. (ISlMi) Toil, a note ffiven by a^ent to unlicensed foreign company for un- 
 collected iiremiums is void.— Benevolent Order of Active Workers v. Smith. .52LeKj'l 
 Intell. (l.'^i)")) J7H. where the Lodge secretary haa been held ajient of his fraternal 
 order. — Rnick d al. v. Mech. Ins. Co., 24 Ins. L. ,1. (ISO,")) liT.i, as to power of ajient to 
 accept notice of caucellavioii and procure substitute insurance.— Schauer c^ n/. v. 
 Queen Ins. Co. of America, )!0 N' W. Hep. (ISilDlHU, when ajjent may receive notice 
 of cancellation for assured.— (Janlner v. Standard Ins. Co., oS Mo. App. lill, wlu-n 
 .agent may not receive notice of cancellation for assurecl.— East Te.xas F. Ins. Co. 
 V. Blum (l.Si)O), 7() Te.v. (wM, and case cited there, wheie not ice of cancellation to agent 
 was not considered notice to .assured. —Kraber v. I'nion Ins. Co. (IHStj), joq |>jj_ yj. S ; 
 London. Ass. Corp. v. Russell, 1 Pa. Super. Ct., 1^20, where agent was held liable to 
 company for failure to cancel policy as instructed ; measure of danuiges, and contri- 
 butory negligence of company. Lanck v. Myers, ."):i Legal Intell. 2(1(1 (ISlMi) ; McBride 
 vi III. v. Rinard <7 iiL, :« Atl. Rej). 7.")(l (ISilli): .^Iorton v. Hart (issiD, sS Tam. 127, as 
 to pers<mal liability of agent acting for tinauthorized foreiuii company. -Lagroue v. 
 Zimmerman r( al., 21 S. E. Re]i. 2!I0 (ISiXH, persomil liability of agents acting for an 
 association which had no legal existence. — Bauk.s v. Cramei-. ()(i \, W. Hep. (ISiiC) 
 94(), 3 Detroit L.N. 4S, an agent acting for another must disclose his |)rincipal to 
 escape liability for non- fulfilment of agreement. 
 
i 
 
 iiiirf^^i 
 
 518 
 
 INSURANCE LAW OF CANADA. 
 
 330a. Power of agent to waive— Knowledge of agent.— 
 
 Art we have seen, the coiulitioiis of a policy of fire insurance may 
 V)e waiv^ed by a general agent of the company- issuing the same, 
 notwithstanding the policy jirovides that no agent of the company 
 can waive any of its conditions. But to constitute a waiver of 
 conditions as to the future use of insured premises, there must be 
 something more shown than mere knowledge of such use on the 
 part of the agent of an insurer. The language and conduct of the 
 agent must be such as to reasonably imply an intention on his part 
 to waive such conditions or to consent to such use.' 
 
 The question of the powers of agents to waive conditions and 
 as to how far their authority may be presumed to go, and the 
 eftect of re>trictions and private instructions given to agents and 
 not c<mimunicated to the parties with wiiom they deal, has been 
 the source of much litigation in the Uuited States. Courts have 
 pronounced at length iipon the responsabilities and cai)acity of 
 both general and local agents, and although, as we have seen, 
 these decisions cannot be taken in all cases as safe guides or pre- 
 cedents in Canadian cases, it may be of use to give here a brief 
 refei'cncc to them.- 
 
 ' Coni'ordiii Fire Ills. Co. V. JohiHon,*-!") I'lir. Hl'p. 722 dsitoi, mul see Equitable 
 Life Ass. Soe. v. Cote vf ah, 35 S. \V. Rep. 720 (ISlHii. 
 
 -Terry V. I'rovident Fund Soe. of Xew Yorlv, 11 X. E. Hep. (181i5» IS; in re 
 Dobhel's estate, US I'ae. JJep. S7 (ISiU); Am. Employers' r.iah. Ins. Co. d al. v. 
 Fordyee./<(/.,;«!S. \V. Hop. Id.")! (ISDll) ; Croft v. Hanover Ins, Co. et al.,il S. E. 
 Hep. (1W).")I,S.">I ; Pythian Life Ass'n V. Preston, 2."> Ins. li. J. (ISltli), 5()2, Farniiin v. 
 Phienix Ins. ('o. (ISiN)), SH Cal 211), as to jiower of aj<ent to waive iire|)ayinenl of 
 preminiii. -Smitli v. New England Mut . Life Ins. Co., (i:! Fed. Hej). (ISDl), 7<ii' : and 
 Hawley v. Michigan Mut. Life Ins. Co., 24 In.s. L. .]. (1S!).5), 21(>, where i)oliey was held 
 void, premium not liavinK been ))aiil. — Long Island Ins. Co. v. Great Western 
 iVIanufti Co., 12 Pae Hep. 7 IH (l.Si).j) and Penn . Fire Ins. Co. v . Faires, 3.5 S. W. Hop. 
 .")."i (IS'.HI), as to eonditioii retiuirinjj; waiver by agent in writing being nugatory.— 
 Kgan V. Weslehester Fire Ins. Co., 12 Pae. Hep. (l.^it.")M)ll, and.Oslikosli Matchworks 
 V. Manehester l'"iro Ass. Co., till \. W. Hei). 52.") (ISlHii, when jiarol waiver by agent 
 was held iinll.— tierinan-Ainer. Ins. Co, of N. Y. v. Waters, :t() S. W. Hep. (ISU.")), 
 57t). company nul estopped by waiver of agent who had no authority to act after 
 loss.— .Manchester Fire -Vss. Co. v. (ilenii e/ a'.. North Brit. & Merc. Ins. Co. ' . 
 Glenn (7 a/.. 40 X. K. liep. (18i»5), l)2li, for waiver by agent as to assigiinient of 
 interest in policy .— .Jenkins v. Cierman Ins. Co.. .")S .Mo. App. 210 ; Dryer v. Security 
 Fire Ins. Co., (12 X. W. Hep. lOJO (IS;),")), an 1 Allen v. St. Lawrence Co. Farmer's 
 Ins. Co., 34 X.Y. Snppl. .872 (l.'^:).")), soliciting agent no power to waive.— Sun Fire 
 OfHce V. Wich., 30 I'ac. Hep. (1805) .-)S7, applicant must a.scertain sc >pe of •.oli-iting 
 agent's authority. -Hulhven >■/ til. v. Amer Fire Ins. Co , liO X. \\ . Hep. (l.'^Oll, i);*:*, 
 clause in jiolicy limiting agent's powi'r valid when assented to by assured, Eisner, 
 Admr.K. v. Prud. Ins. Co. of America, 08 .\. Y. State He|). (ls!)5), 121 ; 34 X.Y. Suppl. 
 (1.81).-)), 24(1, .-tatements by collecting agent. -.Milwaukee Medi. Ins. Co. \. Urowii, 14 
 I'ac. Hep. 3,-) (181N1) ; Potter d al. v. Pluenix Ins. Co., (13 Fed. Hej). (1804», 382 ; German 
 
■pi IN 
 
 Tt5 
 
 AGENTS — THEIR POWERS AND DUTIES. 
 
 519 
 
 There are many other recent American decisions regarding 
 insurance contracts changed by parol statements of agents.' 
 
 In a case where the Court of Appeals of Kentucky held, a 
 forfeiture of the conditions as to other insurance had been waived 
 by notice to the agent, it was insisted that the agent in this case 
 
 Fire Ins. Co. v. Columbia Encaustic Tilu Co., 13 X. E. Hep. H (ISiHi), for presumption 
 as to powers of ngent. Johnston v. Scottish L'nion & Kat. Ins. Co., f'lT N. \V. liep. 
 41(), (ISlXi) ; Com. Fire Ins. Co. v. Morris rt iiL, h< Soutli Rep. H4 dSil.")); Amer. Empl. 
 Liability Ins. Co. v. Barr, tiS p'ed. Rep. (1895), 873, tor ellect of secret instructions to 
 agents. — Corrigan v. Eycoming Fire Ins. Co., .">:{ Yt. 118 ; Southern Life Ins. Co. v. 
 Booker, !> Heiskell (ilWi ; .Marcus v. St. Louis Mut. Ins. Co., «8 N. Y. (!2.") ; Hartford 
 I-ife k Ann. Ins. Co. v. I!.;yden's Adnir. (ISiNI*, (Ml Ky. :«) : Lamberton v. Connecticut 
 Fire Ins. Co. (188S,, .S!) .MiTin. lli'.l, as to restrictions in agent's power and their waiver 
 by conduct of /icneral ajicnt. 
 
 See also : Ruth veil iV «/. V. American Fire Ins. Co., (K) \. W. Hep. dSitl), (KiH, 
 referred to n>ipr<i,iis to deleti'ali'in of powi'rs of adjuster. — St.anhilber v. Mut. Mill 
 Ins. Co. (181)0) 7t) Wis. is,-) ; Messelback v. Norman as Treasurer etc. (18i)U), 12:i N . Y. 
 578; Warren v, Ph.enix Ins. Co., (18iJ2), 1!) N. Y. Suppl. i)!)0 ; BronUield v. Union Ins. 
 Co. (1888). 87 Ky. 122; Continental Life Ins. Co. v. Chamberlain (188!)), 1H2 U.S. 'Mi, 
 as to power of agent to waive, -t^ueen Ins. Co. v. Kline et al., H2 S. W. Rep. 21-1, 
 (18i)5», for waiver as to extension (»f time for completion of building. -Roberts, 
 Willis & Taylor Co. cf al. v. Sun Mut. Ins. Co. ; Same v. Lancashire Ins. Co.. :t5 S. 
 W. Rep. 'J.')5 (18)Ki) ; N. W. Xat. Ins. Co. v. Mire, :il S. \V. Rep. ()70 <18<)()) ; Parsons ct 
 (il. v. ICnoxville l'"ire Ins, Co.. ;U S. W. Rep. 17(1 (18'.)(!i, waiver of " iron-safe clause'' 
 etc.— (Jcrmaii. Amer Ins. Co. v. llunii)hrey, 25 Ins. L..I . Ct')S (ISi)ti), waiver of condition 
 as to encumbrances.— Rediker v. t^ueen Ins. Co., (i X. W. Hep. 105 (18!)5) ; McGuire v. 
 Hartford Fire Ins. Co., 10 N. Y. Supjil. liOO (18tHi), waiver of condition as to chultel 
 mortgage.— .McLeary (■/ ri?. v. Orient ins. Co., H2 S. W. Rep. .58:1, (181)5); Rockford 
 Ins. Co, V. liorrum (18(K)», 10 111. App. 12!), authority of local agent to consent to 
 vacancy. Dwelling-IIonse Ins. (."o. v. Dowdell, 55 111. -Vpp. 022; Terry v. Provident 
 Fund Soc. of .New York, II X. E. Rep (181)5), is, cited .-ibove, company estopped by 
 acts of agent. -Croft v. IIano\er Ins. Co. if <iL, 21 S. E. Hep. 85 1 (18i)5), cited miprii and 
 infra, power of agent representing several companies. -Stewart v. "Helvetia" Swiss 
 F. Ins. Co., 'M Pac. Rep. (18!)1), HO, local agent no power to renew a i)olicy. - 
 Western Ass. Co. v. Williams, 21 S. E. Rep. (1805), :<70, when agent may 
 consent to change of repository of goods. - Laughlin ct at. v. I'Mdelity Mut. Life 
 Ass'n, 28 S. W. Rep. (1S!)4), HI, admissions by agent as to liability of company. - 
 Croft V. Hanover Ins. Co. cf nL, 21 .S. K. Hep. (18!)5) 851, cited sii/ira. on oral agree- 
 ment with agent as to amount of indemnity, Tripp v. Xortliwestern Live .Stock 
 Ins. Co., .5!) .N . W. Rep. (ISlMi, 1, consent of agejils to killing of stock. 
 
 ' Ins. Co. v. McLanatham, 1 1 Kan. .5:!:!, 511) ; Ins. (^o. v. (iray, lit Kan. 107, s. c. 2;! 
 Pac. Hep. (i;t7 ; Ins. Co. v. Earl, ;i:i .Mii'h, Ii:i; Trustees First HapHsi Church v, 
 Brooklyn F. Ins. Co., litX. Y. ;105 ; I'll. .-nix Ins. Cm. of Brooklyn v. Miiiiger, (I8!)2)4tJ 
 Kan. 78 ; Lpl.it Ldn. & (Jlobe Ins. (_'o. v. Shelly, 10 .South Rep. ;i07 (1805); and 
 Lamberton v. Ins. Co., ;«) .Minn, 121), s.c. :)!l .\.W. Hep, 7(t, where it was said, that ''a 
 contr.icl ing (larly cuinot so I ii' his own hands, mi icstrict his own legal cajiacity for 
 future act ion, that he ha-- iiol tile power, even with the assent of the other party, to 
 bind or oliligale hi nisei t by hi-- fiirt her ael ion or agreement eonlrary to i he leriiis nf 
 the wrillen lontract " 
 
 In Ins. Co. \, ICarl ,si(/))'((, and Seaman \. O'llara, 2li .Mieli.dii, Ilie coiirl s.iid, that 
 "any wrillen contract, not within the statute of fr.iuds, m.iy be changed by parol," 
 and in Kennebec t;o. v. Ins, Co., (1 Gray 201, 20i), this rule has been applied to the 
 enlargi'iiiciit and eontiiiiiaine of policies of insurance. 
 
 '11 
 

 520 
 
 INSURANCE LAW OF CANADA. 
 
 mm 
 
 Avas not such an one. on account of restrictions in tlie policy, as 
 that notice to him was notice to the conipan^-. To this contention 
 the court said : — 
 
 " The ton<h'iiey of recent decisions, and, wc think, properly, 
 is to hold the insurer l)Ound 1)y the acts and conduct of the local 
 a:^ent, whenever it can be done consistently with the rules of law.' 
 The maxim: ' Qui facit per aUam^facit per se' should apjily with 
 peculiar t'orce to the act of an insurance agent, lie usually repre- 
 sents a company remotely located. Its patrons in his vicinity 
 
 for direction a'enerallv as to the insurance 
 
 naturallv look to him 
 
 obtained through him. He is generally regarded as having full 
 power in reference to it. 
 
 Being usually the only man upon the ground having afiytiiing 
 to do witli it, the persons insured in his company, with tew if any 
 exceptions, would, in the absence ot notice that his powers were 
 limited, reganl his statement as to any mutter relative to such in- 
 surance as authoritative, and any notice to him as to it as sutHcient. 
 They rarelv know anvthin>i' ot the comiianv. or of its otHcers who 
 issue the policies, and look to the agent, through whom they have 
 oi)tained the insurance, as the complete rcpresentativi- of the cin- 
 pany in evci-ything connected with that insurance. If they did 
 not consider that they wei'e autliorized to do so, it would undoubt- 
 edly create distrust and tripi)le the business. As to third parties, 
 the agent should, in the absence of notice to the contrary, be rc- 
 gardcil as [)ossessing all the powers his occupation t'airly imports 
 to tlie public. 
 
 Under this rule, an agent who solicits the insiiranci', takes the 
 application, receives the premium and (U'livers the policy, ma\', in 
 our opinion, by his conduct or acts, bind the (^ompany by way of 
 waiver of a forfeiture on aci-oiint of a<lditional insurance, in tlie 
 absence of knowh'dge U[ioii the pai't of the assured that his [lowers 
 in this )'e«:peri haxc been rcsti'icled. This l»cing so, it follow^ that 
 the knowledgi' of the agent undei' such circumstances is to lie im- 
 ]iuted to the company."' 
 
 The (piestion as to how tar a company is bound by the I'act ot' 
 
 I Si-o 9in),-ii § Wli, lliirdwiik v. SliUc Ins. Co. (ISIIl), 2(1 Or. Tvl". 
 
 - I'liii'iiix It\-<. C"i). V, Spii'i'-i (isss». s7 Ivy. 'JS.'). Soc iiiso Aril' v. Slur i^'irc Ins. ('o. 
 (ISilO), li!,"i N. V. .-)7. mill .Mt'lli'u v. lliiniilliui Ins. Co iinil Dcvcnsv. Mccli, el p. Ins. 
 Co., cili'il iIk'Tl", lis to nolici" lo iifji'iit nl dl lici' insiiniiu't' iinildcliniliini ot " lirokiT. " 
 Iloiiic i'rii'nclly .'Sim', \ , Hcirv ((iu. .S.t'.) 'IX .'S. V). Hi-)), (IS!l,")). ."iH;}, for noliii- to aju'wI 
 as to falsi- rei)ri.'Hi.'nliitioiis ri'ifiii'dinu; iioii incnihi'i'slilii. 
 
w\ 
 
 AGENTS — THEIR I'nWERS ANU ULTIES. 
 
 521 
 
 its agents liaving Ijeen aware of circnmstaiiees not stated in the 
 apiilieatii" and policy or eontrary to tlie conditions set forth there- 
 in, lias ijivrn rise tu a larije nuiuher ot' decisions in the United 
 States. As a rule the courts have been of opinion, that the know- 
 ledge of an agent is knowledge of the coni[iany, and they have 
 accordingly declared in favor of the assuri'd.' 
 
 ' Iiiiliiuiii Iu>. Ci). V. Il.irtwcll, (ISM)) li':t Inil. 171 ; Iliiilfdrd Fire Iiih. Co. v. 
 MoDi-o, :i(l 8. \V. Hep. M(i (lS!)(i) ; IJwcliiii^j; House Ins. C"o. v. Snviler, i'l Ins. I,. .J . 
 71.) (l.siMi), ,is to (iesoiiplioii of risk.- Hielianls v. WashiiiKtoii F. & M. Ins. Co. (ISSti), 
 • >l) .Mieli. IJO, lor inisdeseription of situation . —Hennett v. AKi'ii". Ii's. Co. of Waler- 
 town ilsst), 1.-) Al)li. \.C. S-U, ii7, leganiii'K vaeaney.— Aril' v. Star F. Ins. Co. (ISiN)), 
 li) \. Y. .")7, for ailditional insuranee.— Wood v. Anier. F. Ins. Co., UK X. Y. ;{.S2 
 (IS'Jij), restriction of aKi'nt's power not applicable to breach of conditions avoidinp; 
 contract in its inception.— Dick rf al. v. Equitable F. & M. Ins. Co., 05 X. \V. Rep. 
 IVl (ISiMiy, rejjardinjj Icnowledge of foreclosure proceedinRs, attenipted restriction of 
 attent's power inellectuaL — Dupny V.Delaware Ins. Co., 'H [ns. L.,I. (ISU.-i) llil : West- 
 chester F. Ins. Co. V. Wa-iier & Cli.ibot, :il Ins. h. .1, (lS!),i), 170 ; (.'lark ft iil. v. 
 Kiinxville F. Ins. Co., 1 Miss. App. Hep. (ISi).')), .'CSS; Trundle v. I'rovidence-Washini;- 
 t.)ii Ins. Co., .■)! Mo. .Vpp. ISS ; West v. Xorwich Union F. I. 8oc., :i7 I'ac. Rep- <1'''<!M), 
 lis.j ; (lernianAnier. Ins. Co. v. Hart, 21 Ins. I,. .1, (IS!).")), '^71! ; McOoniKle v. .Sus- 
 ijuelianTia Miit. F. Ins. Co., Iil Atl. Rep. (IS!I5), SOS ; (ioss v. Agric. Ins. Co. of Water- 
 tiwii, i;-| X. W. Rep. lOHO(lHi)O) ; Rhode Island Underwriter.s Ass'n v. Monarch, 25 
 Ills. I,. .1. 110 (1S!)0) : l'li..>ni.\ Ins. Co. v. Phillips, 10 Ky. L. Rep. (l.siU), 122 ; Hart d 
 III. V. Xia^ara In.-,. Co. <•! al.. 21 Ins. I,. ,1, (lSi)5), h7 : Ilonn' Ins. Co. of X. Y. v. (iibson, 
 21 In.s. \j. .1. (l,Si)5), ^."iS, referring to waiver as to title in consei|uence of agent's know- 
 ledge.— Carey V. Home Ins. Co. of X. Y., liO X. W. Rep- "-" (ISDO), title in name of 
 wife, policy payable lo imsband. Fhienix Ass. Co. of London v. Coll'mann rl iit., H2 
 S. W. Rep. SIO, (l,Si)5). rejection of i)i'evio\is application. N. W. Mut. Life Ins. Co. v. 
 A merman, (1SS7), 11!) 111. ;!2!), atid Conitjiercial Ins. Co. v. Spanknei)le. 5'.; HI. ."iM, cited 
 there, ,is to elFect of receiviuK prcmiunis after due, with knowledge of breach of con- 
 ditions. —tieorgia Hojiie Ins. Co. V, Stein li at,, IS Southern Rep. HI, (1S!)5) ; I'hceiux 
 Ass. Co. of London v. ColVman .7 ill., 1)2 S. W. Rep. Sll) ( 18i)5), cited above ; (Jernian 
 Ins. Co. V. Kverett, iiO S. W. Hep. 125(1S!10) ; .McDonald v. Fire Ass. Co. of I'hila.lel- 
 piiia, 25 Ins L. .1. 70S (ISDOl; Robliins v. Springlield 1". ..^ .M. Ins. Co., 25 Ins. L. .1. 
 (ISi)ii), ().-,2, ll!i X. Y., 177 ; Coles v. .led'erHon Ins. Co., 25 Ins. L. .1. 217 llSDIi) ; I'erry 
 V. Dxvellin.uHonse Ins. C'o., ;):( .\tl. Rep. 7;tl (lS!)(i) ; .McCuiii' v. Hartford F. Ins. Co., 
 40 X. Y. Snppl. :i(M) dSDO), knowledge of encumbrances. — Liverpool Ik. Loixlon & Clobe 
 In.s. Co. V. l-'ariisworth Lumber I'o,, 17 Southern Rep. <l.si!)5) 115, waiver of clear- 
 space clause, (ierinan Ins. Co. v. H.irt, Iti Ky. L. Rep. (ISKl), WW, knowledge of in- 
 tention to use a thresher near a baru.— In re Pelican Ins. Co. nf Xew (Orleans, 21 Ins. 
 I.. .1. ilS!)5), .5:15, agent's knowledge of lii'm being eomiiosi-d of one pi-rson only. See 
 also (^ueeii Ins, t'o. V. May, M5 S.W. Rep, S2I) (lS!)i;), when k)iowleilge of agent as to 
 enc\mdira)ices did not esloj) company. Cook v. ."siHiidard Life i^: .Vcc. Ins. Co. (1S1M)|, 
 SI .Mich. 12, and Reach. 2:!ii, in)le 1, as to ii'^eut's knowledge of as>nied not being 
 sti'ietly temperate. — r nil ui N'ational Hankof (Ishkosh \. tiennan Ins. Co. of I''reeport. 
 "I l''ed. Rep. t7:t (18110), knowledge of over-insurance, agent being attorney for in- 
 sured.— Kenyon v. Knights 'rem|)lars .\ss., 122 X.Y. 217 (ISIK)), and see (Aiok on Lift; 
 Ins,, ji 211, where knowledge of agent and company of false stateuients does not \^v^' 
 \enl forfeiture. -Ward v. .Melrop. Life Ins. Co., 25 Ins. L, .1, ;t25 (l.'^iMi), as to know - 
 lc'dg( of geiK lal su)ieiintendent. Westeiid Hotel iS: Lainl Co. w .Vinerican Fire Ills 
 Co., 25 Ins. L. .1. S5I, dSIHI), as to knowledge of local solieiling agent obtained afti-r 
 execution of policy ; his mere siU-nce does not operiite as a waiver.— Thuckcr .Mining 
 
 !| 
 
522 INSURANCE LAW OF CANADA. 
 
 330b. Action for recovery of premiums on account of in- 
 solvency of company having been known to agents. In an 
 
 action lor tlie recovery of iiremiunis paid for a life insuraiiee, on 
 the grouiul tluit the eompaiiy was insolvent at the time the policy 
 was taken out, and that the agents were aware of this, hut deceived 
 the applicant hy repeated fcaudulent statements astothi' company's 
 standing, the eonrt expressed the opinion, that the company was 
 ahle to pay all losses up to the time of its dissolution and heeame 
 insolvent through a certain transactii>n long after the policy in 
 (piestion was issued, and that therefore the policy holder was not 
 entitled to recover premiums paid.' 
 
 3303. Acts and knowledge, etc., of agents'clerks— Delegation 
 of power. — It has been held, that an ordinary agent of an insur- 
 ance company has the power to employ clerks to disehargc the 
 ordinary business of his ageney, aiul that a waiver of a character 
 which the agent himself could make, is to he attributed to him 
 when made by his clerk. 
 
 In Biuliiic V. E.icliaii(/e Fire Ins. Co.,- it was said by Karl, com- 
 missioner : — " We know according to the ordinary course of busi- 
 ness, thai insurance agents frccpiently have clerks to assist them and 
 that they could not transact their business if oldiged to attend to 
 all tlie details in person, and these clerks can l)ind their [U'lncijials 
 in any ot the iiiisiuess which they are authorized to transact An 
 insurance agent can authorize his clerk to contract for risks, to 
 collect ju'emiunis, and to take payments of premiums in ciish or 
 securities, and to give credit for premiums or to dennmd cash, and 
 the act of the clerk in such cases is the act of the agent, and Ijinds 
 the company just as eltectually as if it were done by the agent in 
 person." '' 
 
 & SiiU'UiiiH Co. V. Aiiicr. !•'. Jus. Co.. 1 Miss, Ajip. lU'p. (ISII,')) .^io ; Wi'slci'iiian v. 
 llimie .Mut. In*. C\). of ("alif. (Is'ilitl. .") Wusli. .'iJl, as t<i wiiivui' ol' conililioiis by kiiow- 
 li'dm' of aKt'iit. 
 
 ' I.Uf Ass'ii iif Aiiicrica v. CkhhU'. (1SSS> 71 Tex. !KI. Sec Tiisi'll v. Ilartfoid Life 
 k \nu'y Ins. C'o. (1SS7), ;t2 Fi'il. Hop. U:i as to w.iivcr of forfiMtun" aflci' nu I'lviiig 
 preiiiiuins ovordut'.— Livntz v. V'l'niioiit Life Ins Co. (ISitl), i:t!l I'a. St. 'M ; ."^larvin 
 V. Ins, Co., XoN. Y. •J.IH; Deim v. Ins. Co., (12 X. Y. tU-2 : lIointT v. Ins. Co..(i7N.Y. 
 17S ; Tenniint v. Ins. Co.. :U Fed. Kep. :t22 ; .la< k -on v. Hoyal Men. Soc. (N. Y. C. C), 
 :(7 X. Y. Snppl. (ISiWil 2S, 7-.! X. Y, SI. Hop. (IS7lii 17!l, ir> .Misc. ls|, as to fll'ect of agent's 
 pi'oiniKf to ret'civo or liaviii).: aoccpU-i >vi'r dm- piviniuni. -Ki|uil. L. A. .Soc. w Cole 
 (■/ III., It.") S. W. Hep. 72<l (ISDCi), a(f"iU lias no antliority to accejit property in lieu of 
 cash. 
 
 - .")! .\ V . 1 17. ■" Story on \Kincy. 21 ; tail see fni/ini «; ;t22. 
 

 AGENTS — THEIR I'OWERS AND DUTIES. 
 
 623 
 
 In the case of Clark v. Glevs Falls Jus. Co.,' tlic general term 
 of the Rnprenu' Conrt lield, that tlu' jiolicy in that suit, eonnter- 
 higtied by a'ekM'k in the oUiee of tlie antliori/ed and eomniii^siuned 
 agent ot tlie defendant, was a proper and valid poliey, niiere the 
 clerk was authorized liy tlu- agent to contract new insurances and 
 to give renewals, to make monthly and dail} reports, ami collect 
 premiums on policies and renewals issued. 
 
 In Chase v. Peoples Fire Ins. Co.,' it Avas held, that the know- 
 ledge (if a clerk of the agents of defendant company, that the house 
 insured was vacant, was tin- knowledge ot the company itself 
 
 And in Ktweij w Amazon Ins. Co.,' the Supreme Court held, 
 that a general agent of a foreign insui'ance com]iany had a right, hy 
 virtue of his authoi-ity, and for the purpose of discharging the 
 duties apitertaining to his office, to employ all necessary agents, 
 clerks and surveyors to enable him to conduct the business witli 
 correctness, intelligence and pro)niitness, and that, when he did in 
 fact emjdoy others, their acts and contracts woulil bi' binding uiion 
 the company the same as it made persomUl}* by the general agent. 
 The court added :— '' Enough has been said to show that an agent ot' 
 an insurance comi)any has the right to, and indeed it is the expec- 
 tation ot the company that he will, I'lnploy such clerks and other 
 assistants as may be lu'cessary and proper in order that he may do 
 the l)usine88 for which ho has been ap[iointed agent. Solii-iting 
 insurance is part ot the business ot such agents, and it is not to be 
 assunuMl that such solicitation can be made oidyby the agents [ler- 
 sonally, ni/r can it be lu'ld as a matter of law tluit, when it is made 
 by sonn' person employed exclusively by them, such solicitation, 
 on the part of the person thus emi)loyed, nnikes him an insunnice 
 broker and takes away from him his character as clerk or emjih.iyee 
 of the agent.-. The fact that the solicitor was compensated for his 
 services to tliese agents by a ce, amission on the business wiiich he 
 brought, is not conclusive upon the (piestion of tlie cajiacity in 
 whii'h he woi'ked. ("lerks or other employees are tVei|Ucnt!y com- 
 pensated by a commission u]ion the ;iinount of business lu'oiiglii to 
 the employer by them. In order to constitute him such an 
 employee as to sn .-e>[uent insiii'ance in a ca.-e like this, it is not 
 necessary that he .-hould have been engaged to pci't'onn only such 
 duties as nia\' be and are doni' in the office of his cinp!o\iT. 'i'jie 
 
 -i ii 
 
 '21N,Y. W. I)i«. HIT. 
 
 11 lluii. l.Vi. 
 
 :i(i IIuii. (it), icferrt'il to Niijirii ^ iCiii. 
 
i- 
 
 HI 
 
 Mt? 
 
 524 
 
 [NSIKANCE LAW OK CANADA. 
 
 liiiH 
 
 |i: 
 
 n'' 
 
 pliicc ot tlio p(.'rh)i'iii;iiu'i' i>t' till' (lutii's is neitluT tilt' sole nor iilwavs 
 a iiccosiirv criterion li_v wjiicli t<> judgL' ot' the nature of such 
 serviee. The t'ia[iloyt'e of the aii;eut in the ease of Btnline v. 
 Exehnmje Fire Ids. CW was not eontiued to tlu' otlieo in the per- 
 fornianee of duties which he diseharg'ed for his employer." 
 
 In Waldnimi v. Xorl/i Bridsh d' Merc. Ins. Ci>.- the eourt ruled 
 tliat a local ayent cannot deley-ati' his power of waiving tlu; forfeiture 
 ot a policy to a person in his office I'liiployed in the discharge of 
 clerical iluties. of whose ajipointTuent the i'(Hi)i)any has no know- 
 ledge. 
 
 330d. False answers inserted, and fraudulent or erroneous 
 statements made, by agent. — There are numerous casc^ in which 
 tlie courts in the United States have heen called upon to decide in 
 how tiir tidse answers inserted in the application hy the agent, or 
 I'alse representations and statements, either traudulent or erroneous, 
 on the part of the agent, aft'ect a contract of insurance The refer- 
 ences will he sufKcient to showthe trend of judicial opinion on this 
 suhiect in the United States.' 
 
 ' .•)! \ V. 117. 
 
 ■^ (ISiKDiH AIm. 17(1. Bodino '.-. Kxclian^o V. Iii.«. Co., ot X.Y. 117, siipr'>- ili>:- 
 I inguislicd.- |''or other cases of 'lelen.'itioii of iif^eiit's uutliorlty, olt'ect of iicfs done, 
 inforniiitioii >j;iveii iind fiiNe luisuers iiisortod, l).v elcrks of iiLteiits, etc., see <ieniiaii 
 l'"iie Ins. Co. V. Ciiluinhiii Kneanstlo Tile Co.. \.\ X.K. Rei). 11 (IHDtl) ; Inierniit. Tnisl 
 Co. V. Norwich Union V. Ins. Soc, 71 Fi?ri. Hi )). si (ISlKi) ; MeClure v. Mis.sissiiipl 
 X'alley Ins. .Soe., I -AIo. Aj>i). 1 W; llonu; Fire Ins. Co. v. (iarha'z, 2") Ins. I,. .1. 7S:i 
 (IS'Kii ; (lerniiuiAnier. Ins. Co. v. Ilnniplirey, li.") Ins. L..T. (mS (!«)(>) ; Sprinnlield F. & 
 .M. Ins. Co. V. He .Iiiriiclt, 111 Sonlli. Kep. 'M'l (ISDIi) : Syndicate Ins. Co. v. Ciilcliinffs 
 (.Ma. S.C I. 1(! South Hep. (ISIU) (li ; and Henderson v. Travelers Ins. Co. (l?.S.C.C. 
 Wyo.K ■2.\ Ins. [, ,1 . (lS!l.-)i. Il.'il. 
 
 ■' Willcins V. .Mntual Iteserve Fund Life A.xs'n d.ss!)), ."il jhin. li'.tl, Snllivim v. 
 Ph.i'nix In-i. Co. (lSHr)> Ml Kan. 170; Silenhcrger v. I'rot. Mnf, Fire Ins. Co. (187!l), SO 
 I'.i. SI. Mil ; Continental Ins. Co. v. Fearee (ISSS), ;!!l Kan. 'MS : Hernard v. United Life 
 Ins. .V-s"n, ;i!l X.Y. Suppl (ISiWi) ;m, 17 Misc.. ll.*>: Cliilil) v. .Vnieriean .Vec. Co. of 
 Louisville, L'.'i Ins. L..L (ISlHii 870 ; Sniitli v. Peoples Mul. Live SloeU Ins. Co. of Fenn., 
 LT) Ins. L..I. llldS'Ki); Hohinson v. Metro]). Life Ins. Co.. :)7X.Y. Suppl. 1 Ki (ISiXl) ; 
 Corliitt ,t <il. V. .Metrop. Lite Ins. Co.. :«) X.Y. Snpj)!. (I.'^itl) liHilt, (>:( X.Y. St. Rep. 
 (ISiir.lHOil; Hernard v. United Life Ins. Ass'n, ;i:f (.X. V. Suppl. dsil.".), :!•.', (iCi X.Y. St. 
 Hep. {l.^llol "i:;! ; Contin. In-, (,'o. v. Chew, ;i,S X,K,H. dSiU) 117 ; Home Fire Ins. Co. v. 
 Fallon. 'Jl Ins. L..I (ISlCn (iHl) ; Hussell v. Detroit .Mut. F. Ins Co, (ISiMI), ,st) .Mich, 107 ; 
 SpriiiKlield F. & .\I. Ins, C,>. v, I'hillii.s, l(i Ky. L, Itei). (ISOl) Xyl. it (7;. (1805) ;«lll ; 
 (iernian tns, Co. of I'reeporl v. nay<len it n/.. Id I'.'ic, lii'p. (l.sirn l.')H ; Sehfll v. 
 (iernian Ins, Co,, 1 .Miss. .\|)p. He]). (IS!).")) 2i:t: O'Hiieii v. Xew Zealand Ins. Co,. II 
 
 I'ae. Hep. ilsii,-,)L'ii,s; )'.s. .Mnt. .\< 
 
 Killenriiiir, l\ I'ae. Hi']). (l.SOtt) rm 
 
 .Metrop. Lite his, Co, v. Wood, :f:) \Yeelvly Law Hull, d.-^l),-)) ;U(! ; State Ins, C 
 
 if 1)( 
 
 I)u Hois (7 ((/,, tl \'m\ Itep. 7.")(>(IS0iit; Dwell ing-HonM' Ins. Co. v. Doudall 
 
 illl, .\ii))., (iL':; : (lernuni .\iner. Ins. C 
 
 Hart, -Jl Ins, L..I. dSlI,".) l>7M : Dui 
 
 (_'oinin'r \ . 1'., si. Credit System Co. .Inhii K. IMIisoii i.V' ,Sons, petitioners, 111 N .1 
 
A(3ENTS — THEIR rnWF.RS AND DUTIES. 
 
 330e. Agent's power regarding proofs of loss, etc — While 
 tho suiijt'cf matter of the iirecediii!.'' {uinigriiiilis ri'Iutt-d tor tlie 
 most ]iiirt to acts or statements, etc, ot' tlie aii'eiit wliile eiigaijed 
 ill procuring business tor tlie company employing him, no small 
 amount ot imjiortanco attaches to his doings at the tiiuil stage of 
 the contract, when the com[iany is called upon to tultll its part ot 
 the agreement. Whether an agent has authority to receive or 
 waivi' ]iroofs ot loss ; whether he may grant a delay in their 
 delivery, and wlietherliis refusal to fiirnisli hlaiiks, usually supplied 
 hy the con^iany, is etpiivaleiit to a waiver of proofs; all these and 
 similar ipiestions have fre(pieiitly led to dilierenees whicli, failing 
 an amicahle settlement, have been laid before' tht' courts as a iinal 
 resort A brief reference to some American decisions will sutKce 
 to show how the matter has been regarded by the judicial autliori- 
 tics in the States.' 
 
 331. Liability of agent's bondsmen. — This is aiiotlier matter 
 in which recourse has frequently been had to the courts. 
 
 ill Braiisford et al. v. Nanrich Union F. las. S"i'.,- which was 
 
 Law .louriiiil (IMHi) .')7 ; (.'nifl v. Hiinover Ttis. Co. tl it'.. -IX S.lv \\v\k (1S!I.")) ,s,")4 ; 
 Aliihiima (iold Life Ins. Co. v. (iarnor (ISSl), 77 Alii. -Jld ; Koystoiie Mm. Ik-nctil Ass. 
 V. .loiics (1S!K|), 11 Ml!. ;«•>;!; O'Hoiirke v. .Jolm IlancncU Mut. l.ifi; Ins. Co., :«) N.Y. 
 Suppl. (1S!U» lil.'); 10 Delehaiily, 4(1."): Whiliu'V v. Nat. Mas. Ace. Ass'ii, o"! N. W. 
 Uep. (ISiin i)4;! ; Travelers Ins. Co. of lliiitt'oul v. HeiiU'rsoii, (ill Fed. Hep. (ls<r,l, 7(i2, 
 KiC.C.A. :«H); Heckwitti v. Hyaii, ill Atl. Uep. tSS (ISIH!) ; I'nion Nat. Hank of Osli- 
 kosli V. (ieinian Ins. Co. of Ki-eeporl, 71 I'"e(l. Ke|). I7;i (ISiKii. 
 
 ' llarnden v. Milwaukee Mecli. Ins,, 11 N. K. Hep. ().")H (ISOo); Knnantnuit (7 <iL 
 V. Giranl 1''. & .\1 . Ins. Co., I'hilii., 2.1 Ins. L.J. K7, :«) Lawyers' Hep'ts Annotated, 
 liKKlWH)); Syndicate Ins. Co. v. Ciitchinjr.s, Hi South Rep. W (1S!M>; Kitzwortli v 
 Ainer. Ceiiti'al Ins. Co., 1 Miss. .\\^^. Hej). (IS!);")) ,")I1» ; Itoekford Ins. Co. v. Williain.s, 
 .jti 111. App. ;f:tS ; Mi.\ V. Hoyal Itis. Co. (I'a. S.('.), ;« Atl. Hep. dSil.")), ItiO ; Holun li id. 
 V, I'Mre Ass'n of I'liila., 2 Miss. App. Hep. (IS'.Hi) i;t7.'i, as to authority of agents to 
 rec'.'ive proofs of loss.-See Wood, ll!t, 117 it Hliss. 'JittI on siinie suhjeet. -DweJlint; 
 House Ins. Co. v. Snyder, 2.") Ins. ]>. .1. 71."), (ISiHi), when ajient had no power to waive 
 proofs of loss. Shapire v. St. I'aul F. it M. Ins. Co., ti:i N.W. Hep. (IS'J,")), till; 
 Hnrllnjiton Ins. Co. v. Kennerly, :U S.K.H'.'i). 1.").'), (IHO.i), statement by tifj;ent, that it is 
 unneeessary to furnish proofs of loss, not liindin); upon company. Dwellint^llouse 
 Ins. Co, V. I)o.^dall, .">"> 111. App. (122, cited ok/j/vj ; Sharp v. Milwaukee Meeli. Ins. Co., 
 4(1 N. Y. Suppl. (ISiKi), H17, waiver by anent of ilelay in furniHliin.'.c proofs of loss.— 
 Coldham v. American Casually & .Security Co., ;i2 Weekly Law Hull. (ISill). ()2i), a 
 mere refusal by agents to furnish bliinks for proof of di'atli not a waiver. -Travelers 
 Ins. Co. V. Harvey (ISS.")), S2 \'a. '.till, reliisal liy j^eneial a:.cent to recognize a claim is 
 a waiver as to notice and proofs of loss. -Dshkosli .Matehworks v. Manch. I'ire .\ss. 
 Co., (i(t .\ . W. Hv. .")2,") (ISIHI), exiindnation of assured as to loss not a waiviM- of lireacli 
 
 f policv.— Roberts Willis &, Tailor Co. i/ itK \. Sun. Mm. Ins. C 
 
 po 
 
 Ins, Co.. :C) S. W. Hep. !t,V) (ISllli), limitalion of | 
 ail.juster. -See also in/rti cha)). .\\"1I. 
 •-:t!l I'ac. Hep. l l.S!!;-)! I lit. 
 
 -Same 
 
 lower o 
 
 f a.Ltenl not applicable to 
 
526 
 
 INSURANCE LAW OF CANADA. 
 
 an action on the bond ot an agont, the question was whether, in 
 case of an agent assigning his insurance business to a company, the 
 latter to sell to the best advantage and apply the proceeds to the 
 agent's indebtedness, the company was bound to sell the agency 
 for the highest price that could be realized, without reference to the 
 (diaracter of the purchaser. The court expressed the opinion that, 
 from tiie nature of the business and the terms of the agreement, 
 the company had a right to take into consideration whether the 
 purchaser was qualified by experience, alnlity, etc., to properly 
 represent a company in the important business ot taking risks tor 
 and on their behalf.' 
 
 ' So(! also Union Centnil Life Inn. Co. v. Smith it a/., (H X, W. Hep. (lSi)5) 43S, 
 wliere it was decided, that notice hy a sul)aLcent and his l)oiidsnien tea general agent 
 of termination of contract is notice to tlie company. — Uoyal Ins. Co. v. Clarlc, ti:3 N. 
 W. IJep. (18!)5) 1029, where the bondsmen were consichM'ed liable for a loss accruing 
 to the comi)any through the failure of the agent to cancel as instructed.— .Etna Ins. 
 Co. V. Fowler et al., (>() X. W. Re)). <18i)li) 171), where the court expressed the opinion, 
 that a company must inform the sureties of facts within its knowledge which may 
 atFect their future liahilitv. 
 
CHAPTER XIV. 
 
 MUTUAL INSURANCE. 
 
 Xil. (iK.VKHAI. UKMAUKS ON MUTUAF, 
 INSrUANCK. 
 
 iiSi. lillADIXC lAXADIAN UKCISIOXS 
 INTKItl'HKlI.VC TIIK STATL'TK LAW — 
 ONTARIO INS. ACT KK rHIlSl'KCTI Vi: — 
 FIKK INS. I'Ol.. A( T AI'rLUAHl.i; TO AI.I. 
 MUTUAL COMPANIKS IN ONTAHIO— Al»- 
 PLRAUILITY OF UNIFOKM CON'OrriONS 
 ACT— TIMK AI.LOWKl) CCMl'ANY TO PAY 
 LOSS, I'KF.MATUHp; ACTION— Fit ATKUNAL 
 ACCIDKNT INSUKANCF KOCIFTY WITH- 
 OUT l.lCKNSl; — DOMINION INS. ACT, 
 
 1877 ; ONTAHIO comi'any's ituaiT to no 
 
 mslNFSS IN (JUKIIKC— LIMITAIION OF 
 MFMHKHS' LIAllII.ITV — MUTUAL AID 
 •SOCIETIKS OOVKIl.NKI) IIY SAME LAW AS 
 ORDI.VAKY INSUKANCi: COMI'ANIFH ; 
 
 F.VLSF stati;mi:nts h e (i a k n i n c 
 
 HEALTH — HVPOTIIECATIOV AM) AU- 
 DITION A I. INSUKANCE. 
 
 .'Wl. Assessments, and dei isions 
 
 UECAllDINli THEM. 
 
 3;i5. Notes (;ivi;n in settlement of 
 
 LOSS. 
 
 HIKi. WaIVEH on account of I)E- 
 .NIAL OF LIAIilLITY. 
 
 337. Pay.ment INTO couiii' itv ni:- 
 
 NEVOLENT .SOCIETY. 
 
 XiH. Physician's cektificate final 
 AS to daily indemnity in case of 
 
 IN.n'l!IES. 
 
 '•WJ. DiSTRIUUI'ION OF I'KOCEEDS OF 
 MUTUAL liENEFIT C E Ifl' I F I C A T i; - 
 ClIANdE OF IIENEFICIAIIY. 
 
 :U(). Recent amekican decisions. 
 
 332. General remarks on mutual insurance. The tormatioii 
 cf the (lirtbivnt mutual insurance companies autliorised by the k'gis- 
 hitivc ciiactmeiit8 ot'tlie provinces is treated of in chapter XXV. 
 
 We will consider here the decisions tml}', aftecting such com- 
 panies. These are numerous and important, and they well re[iay 
 the lalitir of analysis. It may he said, however, in lirief, that 
 what gives the mutual characteristic to insurance, is the double 
 ([uality of insurer and insured inherent in each meniher ot the 
 mutual company. From this results the variability of the assess- 
 mciu.' Mutual insurance is distinet from all idea of speculation or 
 traftic. It covers only warranty and re[iaratioii for loss suffered by 
 the memlKU's of the company. - 
 
 As we have seen, although the policies issued hy a mntual 
 company are not commercial contracts, such a company may nuike 
 a commercial contract.' 
 
 ' PaiidcfloM P'raiiv'usc's, vi'iho ,\s^. ;\Iiil. 
 - IJi'iliirride, .fur.— Cdin., p. li")!), par. :i7ii. 
 • H. K. .Mut. Life Ass. Co. and Ik>ru;i'viii, .■> R. .1. Q., Q. li. T).") ; .<iiipr<i i S.'>a, li.")! ,7 
 
 ! I 
 
 KO/. 
 
 'I 
 
Ill 
 
 AOs 
 
 INSl'RAXCE LAW OF CANADA. 
 
 iii!ii 
 
 Acconliiit,^ to till' Ontario Insurance Art, ••mutual iusuraiu'c " 
 moans, in the (.'aso of lire or live stock insurance, insurance <;-iven 
 in consideration of a premium note or uinlertaking with or 
 without an immeiliate cash payment thereon ; and " mutual com- 
 })any " means a company empowered solely to transact such insur- 
 
 ance. 
 
 Mutual insurance has also been explained as "an association of 
 persons for insurance purposes, but witiiout subscribed capital, who 
 agree to pay l\y pro-rata assessments for each otlier'a losses as thev 
 occur. A small casli payment is usually made, when the insurance 
 is taken out, to cover expenses, and a premium note or bond for 
 an agreed sum is given upon Avhich assessments are to be made as 
 neitded. Tiie insured thus becomes an insurer of otlu'rs to <;et his 
 own insurance, and jtays i)ro-rata for the losses of others to get his 
 own indemnity, of which, however, he pays his own share also. 
 Should losses prove heavy and the company dissolve, each member, 
 at the time of dissolution, becomvs liable for his full quota of any 
 remaining indebtedness, without regard to the payment of his pre- 
 mium note, which is only an estimated amount for the present 
 purpose of assessments to meet current losses and expenses. There 
 are several modiiications of the mutual system ; as, the purely 
 mutual, where no cash is paid down ; where a premium note and 
 some cash are taken, and where a cash premium is taken sutlicieiit 
 to carry the risk to expiration, and no note is given, but all in- 
 debtedness is met by pro-rata assessment." - 
 
 "Where a compain* was authorized by its charter to carry on 
 both proprietary ami mutual insuram-e business, but was debarred 
 from taking extra-hazardous risks in the mutual branch, the (pies- 
 tion arose whether a policy, issued on property falling within the 
 prohibited class and which was not on its face a mutual one, l)ut 
 an absolute undertaking to pay the loss, belonged to the mutual 
 class, as, instead of a cash payment, a preinium note had been 
 
 ' fiO ViL'. c. ;«i (0), s. 2, ss. 12. 
 
 '•! Griswold, ;<2(i. 
 
 The ])eculiar ulmniLtur of mill ual insuranco 1ms formed the stib.jeet of a very 
 learned report liy I'rof. Dr. l^iirenherj/; of Gn'ttiiigeii, delivered at the 21th session uf 
 German .Jurists, luul reprodneed in I he s\ipplement to the .Munich Allg. Zeitnnjj; of 
 7tli March, istl". It was there pointed out, that the individual rights of a member in 
 a mutual life assurance company must he treated dillerently from those in other 
 kinds of iiisiirauce, as claims do not arise until after the assured has died or until he 
 has ceased to he an active meinher, and because the assured cannot leave the society 
 and join another, whenever he wishes, under e(|unlly favorable conditions. 
 
'■'^11! 
 
 MUTUAL INSURANCE. 
 
 520 
 
 uf 
 
 of 
 
 ill 
 llIT 
 
 lie 
 
 givoti and sovoral ass^•s^^lm■llls iiaitl rhorcoii, tUv apiilicatioii ul.so 
 being hcatlod •' Pivniiuni Noto System." 
 
 Reversing the jmlgnient ot" the Court of Chancery,' thi- Ontario 
 Court ot Ap^ieal was of opinion tliat. with the exeejition ot' the 
 premium note, whieli was not conclusive proof, there was notliing 
 to show that the insurance had heen effected on the nuitual plan, 
 and that the property was ot such a nature that it could not he 
 taken in the mutual branch. - 
 
 It was also held (reversing the decision reported !) I'. R. 185, 
 which followed Lounlv. The Canada Farmers' Ins. Co:''), that R. S. 
 C. (1877), e. 181,8. 61, providing as to mutual insurance companies, 
 that no execution shall issue against such company upon any judg- 
 ment until after the expiration of three months from the recovery 
 thereof, does not apply where the judgment has been recovered on 
 a policy issued by the company on the cash principle.' 
 
 In another case, tlie defendants, a mutual insurance company 
 in existence at the time of the passing of the Mutual Companies' 
 Act of 187:5, 3t) Vict., c. 44 (Out.), had divided tlieir business into 
 several branches and had also raised a guarantee capital fund, out 
 ot which the losses in all the branches as they arose were paid. 
 The by-hxw tor raising the guarantee funil, passed on tlie 12tli 
 January, 1874, contained a provision that, from the surplus profits 
 of the company from year to year and by assessment of premium 
 notes, a reserve fund should be created for the purpose of paying oft 
 the guarantee capital. 
 
 In a suit by a creditor, to realize the assets of the company, it 
 appeared that the amounts to be collected on the premium notes 
 in two branches would not suffice to pay the losses in those 
 branches, and that the amounts to be collected on such notes in the 
 other two l)ranches were sufficient for that purpose : — 
 
 It was held by Proudfoot, V. C, on appeal from the Master, 
 that the policy holders in the solvent branches were liable to be 
 assessed on their premium notes for the pur[)Ose of paying oft the 
 liability due to the guarantee stock holders, so far as might he 
 necessary to discharge losses paid in those particular branches 
 from the guarantee fund. 
 
 On appeal, it was decided that, whatever might be the power 
 
 ' 2St'liy. 5^-). 
 ^s I'.li. V.VA. 
 
 34 
 
 - Lowson \. (".iiiiuia Farmers' Mut. I". Iiis. Co., li AH. .")li!. 
 ■•S.C. 8 A.U. oia. 
 
 . 
 
IMAGE EVALUATION 
 TEST TARGET (MT-3) 
 
 1.0 
 
 I.I 
 
 1.25 
 
 m 1^ 
 "' IIIIIM 
 
 •' m 
 
 IM 
 
 1 2.2 
 |20 
 
 1.8 
 
 U ill 1.6 
 
 Photographic 
 
 Sciences 
 Corporation 
 
 23 WEST MAIN STREET 
 
 WEBSTER, NY. 145B0 
 
 (716) 873-4503 
 

 tf 
 
 ^ W 
 
 t/j 
 
630 
 
 INSURANCE LAW OP CANADA. 
 
 1 ■■.'riii i 
 
 of the directors, the Court of Chancery had no jurisdiction to make 
 the assessment.' 
 
 Burton, J. A., was doubtful as to the effect of section 76 of 
 R. S. C. (1877) c. 161, and its inconsistency with the clauses of 
 the Act relative to branches and the exemption of the members of 
 one branch from liability for claims on another.' 
 
 It was further held, reversing the decision of Proudfoot, V.C.,' 
 Osier, J., dissenting, that under the Mutual Insurance Act, R.S.O. 
 (1877) c. 191, the cost of a solicitor for servicejs rendered to a 
 mutual insurance company are chargeable not against the general 
 assets of the company, V)ut against the re.s[)octive branches for 
 which the r^^^rvices were in fact rendered, and in case of deficiency 
 of assets -i.' y of the branches the other branches are not liable 
 for the claims thereon. 
 
 Per 0?\c • J : — A creditor of the company, for a debt incurred 
 ■4,6 pu;"t ->'■ . .0 erosaary expenses of the com[»any, though in 
 relation to '1- ..isiness of some of its branches only, is entitled to 
 be paid out of moneys derivetl from assessments for losses and 
 expenses on policy holders in other branches.' 
 
 It has been said in Quebec, that the only loans a mutual insur- 
 ance company, organised under chapter 63 R. S. L. C, is authorised 
 to moke, are those mentioned in section 21 of said statute, for the 
 purpose of paying losses incurred and incidental expenses and in 
 order to avoid more than one annual repartition.' 
 
 And it has also been held, that the directors of a mutual in- 
 surance eompatiy may, under R. S. O. (1877) c. 161, s. 29, borrow 
 money on |>romissory notes or debentures without passing a by-law 
 under seal." 
 
 In another case, trustees were indebted to the plaintiffs and, 
 holding stock in the defendants' company, assigned the stock to 
 the latter in coi»sideration of a sum expressed to be paid by them 
 for the trustees to the plaintiffs. The sum was paid by the issue 
 of the defendants' debentures to the plaintiffs: — 
 
 The court declared, that the transaetion did not constitute a 
 " loan of money " from the plaintiffs to the defeudai>*< within the 
 
 > Duir V. Ciiimiliiiii Mut. IiiH. Co., (i A.K. aw. ■■' Idem. 
 
 •' It r. 1{. 2();J, lofum-d to hi/ra p. fKJi. « S. C. 2 O. H. m), rofi-in «l to hi/ni p. niCi. 
 " Molsoiis linnk & Mnlniil Iiiw. Co. of .lolii'ttu, i;i U. L. 'M)i, S. C. l.iKJ, ri'fi'rroil to 
 infra j$ij :M< and :i:t4. 
 
 " Victoiiii Mut. V\\\\ 1m«. Co. v. Thomson, !I2 C.P. 17(1. 
 
MUTUAL INSURANCE. 
 
 531 
 
 ml ii»- 
 
 orrow 
 
 -law 
 
 and, 
 
 >ok to 
 
 them 
 
 issue 
 
 itute a 
 1111 the 
 
 () p. 'M. 
 I'rrcil to 
 
 meaning of 31 Vict. c. 52 s. 12 (Ont.), and that the issue of the 
 debentures was therefore ultra vires.^ 
 
 "Where the constitution of a benevolent society provides, that 
 beneficiary certificates may be granted to persons who take a cer- 
 tain degree, all the steps laid down in the constitution in connection 
 with the taking of that degree must be complied with, before any 
 beneficiary certificates can bo 1-gaily issued. Where, therefore, 
 the holder of a certificate, though in all other respects duly qualified 
 and accepted as a member of the degree in question, dies befoi-e 
 actually going through the ceremony of initiation, the certificate 
 is not enfijrceable." 
 
 The expulsion of a member from a society was the cause of 
 the following action : - 
 
 The plaintitf, as executor to his deceased son, sued the defen- 
 dants, an incorporated benefit society, to recover the money benefit 
 accruing upon the death of a member. Before the death, the 
 defendants had passed a resolution removing the son from the list 
 of members, on the ground that he had given untruthful answers 
 to questions as to his state of health put to him upon his admission. 
 The complaints against him had been referred to the committee of 
 management, who had reported in his favor, but the society, at a 
 meeting, refused to adopt the report and, in the absence of the de- 
 ceased, without any notice to him or opportunity of appearing, 
 accepted an ex parte statement, made b}* a member present at the 
 meeting, which had not boon before the committee, and acted upon 
 it by forthwith jiassing the resolution referred to. By the rules of 
 the society it was provided that, if it should be establishetl that a 
 new member had not answered truthfully, he should ipso fadn be 
 excludcrl from the society, and also that, it it was proved after his 
 admission that he had not answered trutlifully, he should by reason 
 thereof be struck oft from the list of meml)ers. The committee of 
 management was the l)()ily, appointeil under the rules, to take the 
 evidence and find the facts, their report being subject to confirma- 
 tion or rejection by the «)ciety. 
 
 The court was of opinion that, upon the principh' governing 
 such an enquiry, the person accused should not be condemned' 
 without a lair ehance of hearing the evidence against him and of 
 being heard in his defence ; that the action of the defendants was 
 
 I 
 
 ' Hank of Toronto v. ncavi-r \- Tor. Mut. Ina. Co., 2H Uliy. 87. 
 ' Dovins V. Royal Teinpliirs of Tempernnce, liO A. R. 251). 
 
m 
 
 632 
 
 INSURANCE LAW OF CANADA. 
 
 contrary to these principles and to their own rule ; and, therefore, 
 the expulsion was not legally accomplished and the plaintifl was 
 entitled to recover.' 
 
 In another action it appeared, that there was a claim of B. & D. 
 for costs after a retainer hy a mutual tire insurance company, and 
 B. assigned his interest in it to D. upon certain trusts in which, 
 however, B. had no interest. The court held, that the assignment 
 was absolute, and D. entitled to sue ; and that B. having been 
 president of the company when the costs were incurred, was no 
 objection.- 
 
 333. Leading Canadian decisions interpretins the statute 
 law.- As said above,'' the legislation conceding mutual insurance 
 has been embodied in another chapter.' '/"he following legal de- 
 cisions interpret certain sections of the legislation. 
 
 It has been held, that 53 Vict. c. 44 s. 4 (Out.), substituting a 
 new section for R. S. O. (1887) c. 167, s. 132, is retrospective in its 
 operation, and applies to premium notes given betore its passing as 
 well as to those given afterwards.' 
 
 And in view of the fact, that the 28th section of the Mutual Fire 
 Insurance Companies Act, 1881, makes the Fire Insurance Policy 
 Act applicable "except where the provisions of the Act respecting 
 Mutual Fire Insurance Companies are expressly inconsistent with, 
 or supplementary and in addition to, the provisions of the said Fire 
 Insurance Policy Act," it has been decided, that this includes all 
 mutual insurance companies doing business in the province. In 
 this action it was not alleged in the pleadings, that there was any- 
 thing in the defendants' act " expressly inconsistent with " the 
 Fire Insurance Policy Act, but merely that the matters were varia- 
 tions of the statutory conditions. It was also held, that the ques- 
 tions, HO far as raised, were not of a constitutional character, so as 
 to require notice to the Attorney General of the province and the 
 Minister of Justice of the Dominion.'' 
 
 The question of tlie applicaldlity of the Uniform Conditions 
 Act has been discussed in an action, the facts being as follows : — 
 
 1 Gravel v. L'Union St. Thonm.s, 124 O.H. 1. 
 
 ■J S. C. P. U. 2112, 1ml see S. C. 2 O. K. rm nu/irii p. 5;«l. 
 
 ».S?t;)»7( S:«{2. * Infra ihiip. XXV'. 
 
 ' Ue Simnecu Miit. Firi'Iiis. Co.— Knechtersciise, lUO.U. 417 ; Hee Anclior Mnrine 
 Ins. Co. -. Corbftt, OS. C.U. 7:1. 
 
 "(JoriiiK V. lijmloii Mut. Fire Iiih, Co., II O.H. H2, Sec Hobins v. V'iclorin Mut. 
 Fire InH. Co., 'A\ C. V. mi, A. H. 427. Uullugh v. Rojnl Mut. In«. Co., 5 A. It. 87. 
 
m 
 
 MUTUAL INSUKANCE. 
 
 683 
 
 AppoUaiits, a mutual insurance company, issued in favor of J. 
 F. a policy of insurance, covering him against loss by tire on a 
 general stock of goods in a country store, and, under the terms of 
 the policy, the losses were only to he [)aid v»'ithin three montlis 
 after due notice given hy the insured, according to the provisions 
 of 36 v., c. 44, s. 52 (0), now R. S. O. c. U51, s. 5(5, which provides 
 that in case of loss or damage the members shall give notice to the 
 secretary forthwith, and the [>roofs, declarations, evidence and 
 examinations called for by or under the policy, must be furnished 
 to the company within thirty days after said loss, and upon receipt 
 of notice and proof of claims as aforesaid, the Board of Directors 
 shall ascertain and determine the amount of such loss or daniage, 
 and such amount shall be payable in three months atter receipt by 
 the company of such proofs. A tire occurred on the 21st May, 
 1877. On the next morning J. F. advised the insurance company 
 by telegraph. Orx the 29th June, 1877, the secretary of the com- 
 pany wrote to J. F.'s attorney that, if he had any claim, he had 
 better send in the papers, so that they might be submitted to the 
 Board. On the 3rd July, 1877, J. F. furnished the company with 
 the claim papers, or proofs of loss, and the 13th July he wad 
 advised that, after an examimition of the papers at the Board 
 meeting, it was rcso'/ed that the claim should not be paid. On the 
 23rd August, 1877, J. F. brought this action upon the policy. 
 The appellants [tleaded, iyiter alia, that the policy was made and 
 issued subject to a condition, that the loss should not be payable 
 utitil three months after the receipt by the defendants of the proofs 
 of such loss, to be furnished by the plaintiff to the defendants, and 
 averred delivery of the proofs on the 3rd July, 1877, and that less 
 than three months elapsed before the commencement of this suit. 
 
 The court declared on appeal, Ist. that a policy issued by a 
 mutual insurance company is not subject to the Uniform Conditions 
 Act, R. S. O. c. 162 ; 'Jnd. that the a|)[»ellant company under the 
 policy were entitled to three months t'rom the date of the furnish- 
 ing of claim papers, before being subject to an action, and that, 
 therefore, respondent's action had been prematurely Iirouglit.' 
 
 The aaae o( liegina v. Stapletoii,' is of especial interest inasmuch 
 
 *■( I ■. 
 
 ' Mutiml Fire Inn. Co. of Wi'lliiiKtoti v, Kroy, ') .S (Ml. ,S2. niilliiji;li v. Uoyiil 
 Mut. Fire Ins. Co., 5 Out. App. U, 87 iipprovt'tl. Citizens Ins. Co. v. Hoisvert, II 
 Q.L.R. 377, contra. 
 
 '^ 21 O.R. 071), refcrrcil to nuimt S 20. 
 
534 
 
 INSURANCE LAW OF CANADA. 
 
 as it led to tlio passing of sec. 36 of the Ontario Insurance Corpor- 
 ations Act, 189 J. 
 
 The defeiuhint, with the alleged object of starting a branch of 
 a society, called the "International Fraternal Alliance," having its 
 hi'a<l office in the United States, vhile in the province of Ontario 
 induced a number of jiersons to make ai)plication for membership 
 therein, and to pay a joining fee of S5 wliieh, in addition to certain 
 alleged social benetits, entitled a member on application therefor 
 and on payment of certain fees, to jiecuniary benefits, namely, a 
 certificate entitling the member to a weekly payment in case of 
 sickness or accident, and eertain other sums in case of death or 
 after a stated })eriod. The defendant gave the applicants a receipt 
 acknowledging the payment of the $5 for, as stated, the imrposes 
 mentioned in an agreement written thereuiul.'r, namely to forward 
 to the head office the application on signature thereof, and, if 
 declined, to return amount paid. Hut, if aecepted, the payer was 
 constituted a member, etc., entitled to the full benefits of all social 
 etc. a<lvantages ; and thereafter might secure 1 tlic pecuniary 
 benefits on application therefor. 
 
 The court was of opinion, that the defendant was carr3'ing on 
 the business of accident insurance, without having obtained the 
 necessarv license therefor, contrarv to section 49 of the Insurance 
 Act, R. S. C. ch. 124 ; and that no protection was aftorded by 
 section 43, relating to fraternal, ete., societies, the scheme not 
 being an insurance of the lives of the members exclusively ; and 
 the conviction of the defendant for carrying on such business was 
 therefore affirmed. 
 
 Where an action was brought to recover the amount of assess- 
 ment due u{)on a premium note, the defendants pleaded, that since 
 the passing of the Dominion Insurance Act of 1877, mutual fire 
 insurance companies having their head office in the province of 
 Ontario had no right to do business in the province of Quebec> 
 The court decided, that the company plaintiff, having their head- 
 quarters in the city of Hamilton, Out., and doing busitiess in the 
 province of Quebec previous to 1877, had a right to do business in 
 the province of Quebec since, and the action was therefore main- 
 tained.' 
 
 And in another case it was also held, tliat the defendants, as a 
 
 ' Victoria Mut. Fire Ins. Co. v. Mullin, L.N. ItOO. 
 
 W^' 
 
 ' : r 
 
aa u 
 
 MUTUAL INSURANCE. 
 
 585 
 
 mutual insurance company, were capable of granting insurances \n 
 Quebec as well as in Ontario.' 
 
 Ill Molsons Bank v. Mutual Ins. Co. of Jnliette- it was laid down, 
 that a mutual insurance company, formed under ehai)ter 6:3 R. S. 
 L. C, is not an ordinary society ; tiie obligation contracted by the 
 members is tletermined and limited b}' the term >\ section 12 of 
 said statute, and the directors have no jiower to add to or extend 
 their liability beyond that provided for in above statute. 
 
 The question, whether mutual aid societies are governed by 
 the same law as ordiiuxr^' insurance comiianiee, seems to have been 
 answered in the affirmative by the decision in a ease resulting from 
 concealment and false answers as to state of health. The eviilence 
 ahowetl that, when applying for admission to a mutual aid society, 
 respondent's husband declared, that he was not subject to spitting 
 of blood, that he had no other constitutional or accidental illness, 
 and had never consulted a doctor. A condition of membership 
 was the written acknowledgment by the applicant of the receipt of 
 a copy of the society's by-laws and of familiarity with tlieir stipu- 
 lations, among which was tin' forfeiture of all benetits. and liability 
 of expulsion from the society, in the event ot his having knowingly 
 cotu'ealed the trutn in his medical examination. Shortly after 
 admission, the assuri'd appears to have taken ill and he died of 
 consumption within four months. Upon in([uiry it was learned, 
 that less than two years prior to his application he had had a 
 severe attack of la (jrippe, lasting for about three weeks, <luring 
 which he liad been spitting blood a!id had been under the doctor's 
 care, whereupon the society brought suit against his widow and 
 tutrix to his minor child, to set aside the contract and to be 
 relieved from the payment of any amount to his heir. 
 
 The court in maintaining the action decided, that the deceased, 
 having concealed a material I'ircumstancc and having made a false 
 answer to a special en(iuiry in connection with his medical examin- 
 ation, by that circumstance alone vitiated the contract which the 
 plaintiffs made with him on thi' faith of these declarations.^ 
 
 With regard to a»hlitiomd insurance by mortgagor, it has been 
 decitled in oiu* case,' that a policy of insurance, i.^sucd by a mutual 
 
 > Duffv. Can. Mut. V. Ins. Co., 'J? Chy. :wtl. 
 
 « 13 R.L. :ilt2, S.C. 1S8;», roferrod to smmi S ;i;t2 and Infm S •'«». 
 
 ••' Liv Socl^U' dos ArtiHans Canadlons Kraiivais & (Jiiuvin. U .T.Q . J y B. :{.'». 
 
 * Mut. Fire Iiih. Co. of KIchniond etc. v. Foo, Itl R.L l(H. 
 
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536 
 
 INSURANCE LAW OF CANADA. 
 
 ■':■' ■ " ,' ■'■■ 
 
 
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 company under the provirtions of the Statute ot'Quel)ec of 1882, 45 
 Vict., 0. 51, will not be voidetl because of the fact that the insured 
 lias, after the contract, hypothecated the jiroperty on which the 
 insured buildinijjs arc constructed, and because the hypothecary 
 creditor has, with the consent of the owner of the buildings, 
 insured the same buildings in another company, without giving 
 notice to the mutual company, unless on an aetion to recover the 
 amount ot the insurance, the mutual company prove, that its regu- 
 lations prohibit hyi»othocation and a second insurance without 
 previous notice to them. 
 
 334. Assessments, and decisions regrardingr them. — The pay- 
 ment of assessments being the principal obligation of the assured 
 in a mutual insurance contract, it is not surprising to find that it 
 has proved a fruitful source of litigation. The courts luive liad the 
 subject submitted to them in all its various phases, and from the 
 decisions in the cases cited hereunder it will be seen how the 
 matter has been regarded in Canada.' 
 
 It has been stated in 31olson's Bank v. Mnt. Ins. Co. nf Joliette,- 
 that the members of a mutual insurance company are only respon- 
 sible for such losses as occurred during th( time their policy was 
 in force, and the repartition must show that the losses have been 
 incurred within the term of the policy.' 
 
 And, similarly, it has l)een laid down in another case,' that an 
 assessment for the purpose of paying promissory notes given by a 
 mutual insurance company, must be confined to the premium notes 
 or undertakings current at tlie time the loss occurred in respect of, 
 or to meet which, tlie (•omj)any's notes were given, and that, con- 
 secpiently, new members cannot be assessed to pay notes given 
 previously to their Joining the company. 
 
 But it lias also Itceii declared in Giles v. Brock,' that it is not 
 competent for a person insured in a mutual insurance company, 
 when called upon to pay assessments on his premium note, to 
 compel the company to enter into a detailed statement of the 
 losses, in order to establish the correctness of the assessments made 
 by the directors. The latter, in making the assessments, are the 
 agents of the insured, who in the absence of fraud is, (/noad sucli 
 
 ' .SiM' iilso //)//•(( ii :)10 for Aiiu'i'k'/in decisions coiiceriiitin asHeHsiiicnts. 
 
 •^ i:i U.I,. :m, S.C. IHH:|, referred to snprn Sg ;«2 and ;i:W. 
 
 » Vlftoriii Mat. Kire Ins. Co. of Cannda v. ThoiuHon, 9 A.R. tljJO. See infra. 
 
 MW2). r>i,.N. mi 
 
MUTUAL INSURANCE, 
 
 687 
 
 assessments, bound by their acts and by the terms ot the premium 
 note. 
 
 It has been held, however, that in an action tor assessments by 
 a mutual fire insurance company, the amount of the losses should 
 be alleged and proved, and the nature ot the debts should be 
 established, so as to enable it to be seen, whether or not they are 
 such as insurers are responsible for,' 
 
 Where an application was made to the court to add to the 
 persons who had signed premium notes as parties in the Master's 
 office, and to direct the Master to assess the amounts due upon the 
 notes and to order payment of the same to the receiver from time 
 to time, and wliere it was shown that the directors had not made 
 any assessment upon the notes pursuant to R, S, 0. (1877) c. 161, 
 sec. 45 et seq., it was decided that, as the liability attached only 
 upon such assessment by the directors, the court could not add to, 
 or alter the liability of the parties who had made the notes, by 
 referring it to the Master or a receiver to do that which the direc- 
 tors only could do ; clause 75 of 36 Vic. c. 44, whicli gave power 
 to a receiver to do this, having been omitted from the statute on 
 revision. - 
 
 As regards the legality of assessments, the court expressed an 
 opinion in a case where the directors of the plaintiff company 
 assessed the defendant, a policy holder, for several sums, one of 
 which was illegal, and sent one notice to him, claiming the 
 amount of all the assessments, including the illegal one, in one sum. 
 
 It was held, that the plaintiffs were not entitled to recover 
 any of the assessments.^ 
 
 Another action was based on the validity of assessments made 
 after the policy had been cancelled. The defendants in this case, 
 on the 5th December, 1878, obtained from the plaintiffs a jiolicy of 
 insurance for $2000, on account of which they gave a deposit note 
 for $160, for the balance of which the action was brought, and 
 they pleaded, that on the first of Marcli, 1880, the policy which 
 they had held was cancelled l)y the plaintiffs and notice thereof 
 given to the defendants, and that on the said 1st Afaroh, 1880, de- 
 fendants had paid all dividends and calls made on the said note 
 and were entitled to have it cancelled and returned to them. On 
 
 > Mut. Fire Ins. Co. of .Joliet v. DupuiM, 2H L. C. .(. Hit. 
 
 '■' HIM V. Merchants & Mainifttcturci8 Ins. Co., 2H Chy. rm. 
 
 ^ Vlcloriii Mut. Fire Ins. Co. of Ciinitda v. Tlioin.son, H A. R, H20. See supra. 
 
 I ; i' 
 
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 £ 
 
538 
 
 INSURANCE LAW OF CANADA. 
 
 1iiil^i:sl -; 
 
 HI'..!' 
 
 the part of the plaintiff, it was contended, that the oiuis was upon 
 the defenchants to show that the assessment sued tor was for losses 
 subsequent to the cancellation of the policy. 
 
 The court declared that, as regards the defendants, the resolu- 
 tion making tin- cull should have stated, that it was necessary for 
 the payment of losses incurred before the first of March, and the 
 burden of proof was on the plaintiffs to show that it was so.' 
 
 Where a mutual insurance compatiy have, without objection, 
 received payment of assessments after the proper (hate for their 
 payment, the}' are not therel)y debarred from insisting, on a subse- 
 quent occasion, upon the strict observance of the conditions of the 
 company as to payment, when they give notice that they intend so 
 to insist and there is no conduct on their part tending to mislead 
 the insured. The judgment of the Queen's 13ench Division was 
 reversed. -' 
 
 It was questioned in another case, whether the note given for 
 the premium was negotiable notwithstanding the special agreement 
 in it, and as to the effect of the defendants lieing described therein 
 as the " Watertowu Insurance Company," while their real name 
 was " The Agricultural Insurance Company of Watertown, N.Y.' 
 
 In Hochelaga 3fatual Fire Ins. Co. ifc Lefehvre ' it was said, that 
 members of a mutual insurance company, paying premiums under 
 40 Vict. c. 72, 8. 35, are liable for assessments for losses, and arrears 
 of directors' fees cannot be offered in compensation of ati assessment 
 to meet specific losses. But it was also held in the same case, 
 (reforming in this respect the judgment of the Superior Court) 
 that, although fees due applicant as director could not be set up in 
 compensation against such extra assessments, yet, as the company 
 and liquidators had agreed to allow such fees in reduction thereof, 
 the appellant ought tiot to be condemned for more than respondents 
 had agreed to accept. 
 
 Where a resolution for the voluntary liquidation of a mutual 
 insurance company under the Ontario Winding-up Act was adopted 
 at a general meeting, on a report of the directors which contained 
 a recommendation that policies be sent in to the liquidator and 
 that members seek insurance elsewhere, one of the policy holders 
 
 ' Hoclielaga Mutual Ins. Co. & Girouard, 7 Q. L. R. ;M8 S. C. R., IWl. 
 
 » Redmond v. Can. Mut. Aid Ass. 18 A. R. :i35. 
 
 ••' Sears v. Agricultural Ins. Co., 32 C. P. .585. C. P. S. 
 
 * (I L. N. '£^, S. C. 1883, and 7 L, N. 220, Q. B. 1885. 
 
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 « 
 
 MUTUAL INSURANCE. 
 
 539 
 
 sent in his policy accordingly, l»ut no notice ot" actual cancellation 
 was given to him, nor was anything further dont' in rereronce to 
 cancellation. Afterwards, an assessment was made upon the policy 
 hy the directors with the concurrence of the liijuidator, and the 
 validity of this assessment heing disputed, the (piestion was brought 
 before the court, which decided that the policy had not been can- 
 celled and the assessment was good.' 
 
 The question of the correctness of an assessment was also 
 raised in a case - where, under judgment against a tire insurance 
 company, the plaintitt caused a seizure to be made in the han<ls of 
 its members on moneys due by him to the company. The court 
 held, that the certificate of tlie secretary of the company defen- 
 dant, certifying that the tiers salsie was indebted to it in the sum 
 mentioned therein, must be considered as legal and sutHcient proof, 
 inasmuch as it is in conformity with the (lis[positions of the Ontario 
 Statute, 86 Vic, c. 44, s. 48, and that this certificate sufttces to 
 establish in a legal manner the repartition or assessment claimed 
 by the plaintift against the tiers saisie. 
 
 And in another ease ' it was decided, that the liquidators of a 
 mutual insurance '.'ompany have not an action against one of its 
 members for his assessment, unless they exactly justify by alle- 
 ga'ion and prove the losses, debts and exi»enses, which render their 
 action necessary, and unless they establish that they have con- 
 formed to the statute as to notices, and particularly in having 
 posted a circular letter to the address of the defendant. 
 
 As regards attachments of assessments, the court ruled in 
 Lavoie v. Mutual Fire Lis. Co. if Hochelaija ' that, in the absence of 
 fraud, negligence or maladministration, it is not competent to a 
 judgment creditor of a mutual fire insurance company of the prov- 
 ince of Quebec to attach moneys payable to the corajtany by way 
 of assessment under the provisions of the Lifpiidatit)n Statute, 28 
 Vic, cap. 13. 
 
 In an action,' where the company defendants claimed the 
 right, under R. S. O. (1887), c 107, s. 131, to retain the amount of 
 the premium note given by the mortgagor, until the time had 
 
 > In re City Mut. Ins. Co. & Stiefelineyors case, 24 O. R. 100. 
 
 sCHdieux&Can. Mut. Fire Ins. Co.. •Mh.C.S. 1!H», S.C.K ISTlt. 
 
 'Mut. Fire Ins. Co. of Joliet v. Hourgoiii, lOQ.L.R. 110. 
 
 < 26 L.C.J. KKi, S C. 1882. 
 
 » Anderson v. Saugeen Mut. Fire Ins. Co. of Ml. Forest, M O.R. !{5.5. 
 
 ; ii;i 
 
 
540 
 
 INSURANCE LAW OF CANADA. 
 
 Ill i^ 
 
 ill ^ 
 
 exi»iro<l for which the iusiirrtiice was mado, to covlm- any assesa- 
 meiitri that miglit ho mado thorooi), the court \vt..- of opinion tiiat, 
 aa against tlio mortgagoo, they wore not entitled to retain the 
 amount. 
 
 And it has also hoon decided,' that the alienation hy the 
 dohtor of an immovahle, att'coted hy the (unregistered) hypothec of 
 a mutual insurance company, does not purge such hypothec which 
 attaches to the land until full payment of the premium nctes, and 
 that such hypothec includes the costs of a personal judgment 
 ohtained against the debtor for the amount of such premium notes. 
 
 In treating of the subject of assessments hy mutufd life insur- 
 ance associations, it may not ho out of place to refer co a publi- 
 cation recently issued by tlie Ontario Insurance Department, which 
 declares the rates charged at present by many societies to bo mani- 
 fosvly too low. It is there i)ointed out, that the ett'ect of careful 
 medical selection is to reduce the death rate and to keep the mor- 
 tality extremely low during the first years, and that, therefore, an 
 average taken over a large number of members during the early 
 stage of the company's existence is misleading as a basis for the 
 calculation of annual premiums. In practice, it is found that a 
 considerable number of the most eligible lives discontinue their 
 insurance, while 1 5ss desirable ones remain, so that lapses, far from 
 being benelicial, operate to deteriorate the general quality of the 
 persisting lives, and thereby tend to raise the subsequent death 
 rate. The results of the investigations of English and American 
 actuaries show the variability of the death rate and tind their 
 latest confirmation in the published experience of a Canadian 
 company, which has supplied the Department with the figures on 
 whi<'h its arguments are based. Practical experience has provided 
 a rule, that is almost as certain as the tides, by which the number 
 who will die out of a thcnisand healthy men may bo calculated, and 
 any society that ignores this rule cannot succeed. 
 
 335- Notes given in settlement of loss — Where the by-laws 
 of a mutual insurance company gave the president the manage- 
 ment of its concerns and funds, with power to act in his own dis- 
 cretion and judgment, in the absence of specific directions from 
 the directors ; and where it was also his duty to sign all notes 
 authorized by the board or by virtue of the by-laws, the president 
 
 1 Charest v. Staiistead & Sherbrooke Mut. F. In.s. Co., 12 Q.L.U. 254, Q.B. 1885. 
 
 !-!!:: 4.: 
 
■I 
 
 MUTUAL INSURANCE. 
 
 541 
 
 lieing both president and treasurer, and also acting as secretary, it 
 was held, that the plaintiff, who was the transferee for value, given 
 before maturity, of a note signed in behalf ot the eompany by the 
 president, as president ajid treasurer, and given to the payee in 
 settlemei\t of a valid claim against the companj', was entitled to 
 recover the amount of said note from the company.' 
 
 336. Waiver on aooount of denial of liability. — An action 
 against a mutual fire insurance company can be brought to recover 
 the insurance without previous recourse to the arbitration indicated 
 by sections 51 to 57 of 45 Vict., e, 51 (Q), 1882, when the com- 
 pany plead that the policy is null on account ot uou-fullillment ot 
 conditions by insured. - 
 
 337. Payment into court by benevolent society. — 0:i an 
 
 application by a benevolent society for leave to pay insurance 
 monov into court, claimed by ditterent parties, the < ".rt declared, 
 that sub-section 5 of section 53 of the Judicatun^ Ait, extends the 
 benefit of the Act for the relief of trustees to such cases, and that 
 the society was entitled to pay the money in.' 
 
 338. Physician's certificate final as to daily indemnity in 
 case of injuries. — It has been held, that the i)hye'cian of a mutual 
 aid society has absolute discretion as to the injuries giving a right 
 to the daily indemnity. His certificate is final and his decisions 
 are without appeal, except in case of fraud or collusion with the 
 society or apparent bad faith.* 
 
 339. Distribution of proceeds of mutual benefit certificate 
 — Change of beneficiary. — In the very recent case of Johnstf) v. 
 
 Catholic Mutual Benefit Association,'' the court (Maclennan, J. A., 
 dissenting) found, that the insurance moneys payable by the de- 
 fendants under their bei.jficiary certificate, issued to Patrick 
 O'Dea, and made payable to his executors, should be paid to his 
 next of kin, and not to his creditors, as part of his estate. It was 
 held, that the deceased had no power to make a valid appoint- 
 ment of the proceeds by his will, or by endorsation upon the cer- 
 tificate, but that the proceeds must be distributed amongst his 
 
 • Jones V. E. T. Mutual Fire Ins. Co., in Heview, M.I. .11. :t S.C. 4i:i, 1887. 
 
 2 Montmagny Mut. Ins. Co. & Carbonneiiu., It! K.L. 275, and see infra chap. XIX. 
 
 3 Rf Biijus, 24 O. K. a97. 
 
 * DuUairc v. SoeiiHe Bienveillante de St. Koch, 8 H. J. Q., S. C, 500. 
 •'' Ontario Court of Appeal, 13th Jan., 1897, not yet reported. 
 
 I 
 
 I I 
 
11 
 
 
 ; i 
 
 542 
 
 INSURANCE LAW OF CANADA. 
 
 
 II 
 
 9 
 
 i 
 
 ill 
 
 II 
 
 noxt of kin, according to the rules of the society. The contention 
 of the plaintifl*, a creditor of deceased, that the case was not gov- 
 erned hy sec. 11 of the Ontario Benevolent Societies' Act, but by 
 tlie Dominion Act under which the society had subsequently 
 incorporated, was overruled. 
 
 And in another very recent case' it appeared, that ihe Ctmi- 
 mercial Travellers' Mutual Benefit Society of Western Ontario, by its 
 certificate of menihersliip, dated 19th May, 1888, promised "to 
 pay as many dollars, at the end of (50 daya' notice to the society of 
 the death of James Thorburn Fisher, as there are members in 
 good standing in the society, to Mrs, Agnes E. E. Fisher, his 
 wife, or rfuch other beneficiary or beneficiaries as said J. T. Fisher 
 may in bis lifetime have designated in writing eixlorsed on this 
 certificate, and in default of any such designation, to liis legal 
 representatives." 
 
 Before his death, the insured made the following endorsation 
 on the certificate: "Toronto, Out., April 12, 1892 I hereby 
 assign and transfer all my right, title, interest and claim in the 
 within policy to my brother Robert Grant Fisher, to whom T 
 direct payment of the same ujton my death." The society pai<l 
 the money to the brother, and the present action was brought by 
 the wi<low against the brother. The widow elaimed the money 
 upon the pro})er legal construction of the certificate, and made a 
 motion before the Master in Chambers, who referred it to a Judge,, 
 for an order directing a trial of the legal (piestion of the construc- 
 tion of the certificate before the t\ial of the action, in which the 
 defendant set up a counter claim. The motion was refused. 
 
 340. Recent American decisions. - The system of mutual 
 association for insurance jturposes has, of course, received full con- 
 sideration in the United States,-' ai\<l, conseipiently, the amount of 
 litigation has assumed very considerable proportions. 
 
 The cases (pioled hereui\der will serve to show to some ex- 
 tent how the American courts have viewed the (piestions submitted 
 to *heir Jutlgment. 
 
 It is a well established rule, that mendters of a mutual insur- 
 
 I KiMlier v. I'Mslior, Toronto, 121 li .livii., ist»7, not yel roporli'd. 
 
 - I'lulor llio licadin^ of " Liahilily of Alcniljors of Mutiiiil l'"iiv Ins. ("oh.," nn ox- 
 Imustivo note is iippt-ndiMl in liJ liiiwycrs' Hcpoi'ls, Annulalcd, (ISINI) |H1, to the i-iisi- 
 of loniii, IwUoii, iinil Maiiv Kiirnici-.H' Mul. !•', Ins. Co. v. loiiin Ciivuit .Miil«i', l()(l 
 Midi. (Mill, in whicli Hit! siitijoct is tliorounhly di'iilt wllii in all Its lii^urings. 
 
— ^ 
 
 w 
 
 III 
 
 MUTUAL INSURANCE. 
 
 548 
 
 tual 
 ol' 
 
 ance company are presumed to know the by-laws of the company 
 when they hecomo members ; they are bound by them and cannot 
 question their validity, Itut the by-hiws may be waived,' And 
 fraud of the otHcers in leading a meml)er to suppose that a certain 
 condition did not exist, will not avail the assured in an action on 
 the i)olicy.- 
 
 It has been ([uite common for mutual lif(( insurance companies 
 to issue policies which were upon their face declared to be non- 
 forfeitable and good for certain proportions of tlie amount insured, 
 based uiton full settlement of premiums for lixed periods, if pre- 
 miums for these periotls have l)een [laid. In connection with numy 
 of these contracts it has been airreed, that the ])rejniunis shall be 
 [)artly in cash and partly in premium notes, with other coveiuinls 
 as to i)ayment of interest on these notes, and the ap[>licati<>n of 
 dividends to which insured is to be entitled by the comi)aiiy in the 
 reduction of premiums and paynient of these premiiun notes. 
 
 There have been numy adjudications by the courts as to tlu^ 
 rights of policy-holders in thest> dividends and the duty of the 
 companies in relation thereto. In a number of these cases, on 
 account of a non-payment of interest on these premium notes or the 
 principal, the companies have sought to have declared a forftuture 
 of the contractrt. This has been fretiuently when the conii»any has 
 had in its hands dividends whidi, by the contracts, have boon ap- 
 plicable to these !iotes. 
 
 In one of tht> latest cases in which the complete })aynient of 
 the cash premium for any year or years, and the [layment of the 
 notes given tor such years, was held to secure a non-forlcitabU; 
 endowment of the corresponding number oi' "tenths" of the 
 jtolicy, the court decided that, a dividend being applicable towards 
 the payment of a note at the same time that ilie interest on the 
 note fell due, the dri'aull of tlu! assured to pay tlu' interest did not 
 discharge the comjiany from the duty to apply the diviiletnl, if sui'h 
 application would [tay oil the note, and so prevent a forfeiture of 
 the i»olicy.' 
 
 In a I'ensylvannia case it wiis said, that the nnitual insuraiwe 
 
 • ncncl. l(«l >l mi/. 
 
 '■" Miller V. IIIIIm1)0M)UkIi Mill. l'"li-c Ahs'ci' Ash'imISST), 7 All. Wcp, s!ir>. -.S.., iiIho 
 10 All.Ui'ii 1<"I\- II All. \h']<. :i7S. 
 
 ■' Villi Noriimn v, Nmili Wcsti'iii Mill. Life Iiih. Ch., (IS1I2), ."il .Minn., .")" ; mid hco 
 lluach 117. 
 
 
 
 i'f 
 
 'Mi 
 
Ill 
 
 544 
 
 INSURANCE LAW OF CANADA. 
 
 ¥ i;^ ■ 
 
 company, having in its hands dividends suflScient to pay the pre- 
 mium note, cannot insist upon a forfeiture, and if it had such right, 
 equity would compel such application to prevent forfeiture.' 
 
 ' Giraril Life Ins. Co. v. Mut. Life Ins. Co., (1881) 07 Piv. St. lo. 
 
 For other American cases of mutual insurance companies refer to : 
 
 Lagrone v. Tininierman elal., 24 S. E. Kep. 21K) (181)6), when tlie Aci of Incorpora- 
 tion does not empower a mutual company to organize subordinate or branch 
 organizations. 
 
 Easley v. Valley Mut. Life Ass'n, 24 Ins. L. J. (180.5) 45}, previous acceptance of 
 premiums after default is not such a precedent as to constitute waiver of forfeiture. 
 
 Curtin v. Grand Lodge of Missouri, A.O.U.W., 2 Miss. App. Rep. (1806) 1206, by- 
 laws as to non-suspension of sick members for assessments overdue do not apply 
 to nonpayment of assessments on the benefit certiflcate. 
 
 Burkheiser v. Mutual Acc't Ass'n of the Northwest, 61 Fed. Rep. (1894) 816 ; 26 
 Lawyers' Rep., Annotated, (1805) 112, the fact of an assured ceasing to he a member 
 after an accident, because of default in paying an assessment, does not relieve the 
 association from liability, if death occurs within the time stipulated. 
 
 Dettra, receiver, v. Lock, and idem v. Murray, .t3 Legal Intelligencer (1896) 1.50 ; .5 
 Pa. Dist. R., 200, 201, where a member was liable for unpaid assessments, and the 
 contract, although otherwise vitiated by fraudulent misrepresentations of officers of 
 a mutual company, was sustained for the protection of innocent third parties, and 
 where further the right to forfeit the contract for non-payment of assessments was 
 declared to be optional with the company. — In Susquehanna Mut. Fire Ins. Co. v. 
 Leary (1890), I'JCi Pa. St. 490, it was also held, that the invalidity of a policy cannot be 
 set up as a defence in an action for assessments. 
 
 In Carlton v. Southern Mut. Ins. Co. (1884), 72 Ga. 371, 'Mosicq., where the court 
 was asked for instructions as to the distribution of the accumulations of a mutual 
 company, it was said, that the general law of partnership as to profit and loss governs 
 a mutual insurance company, but when a charter is granted, it stands in the place of 
 the articles of partnership, it moditVes the general law and becomes the governor 
 wherever the two authorities colli<ie. It was also there said, that a mutual incorpo- 
 rated society, unlike a mere partnership, must be born of the State and live so long 
 as the State permits by the charter. 
 
^1 
 
 ! H 
 
 riior 
 rpo- 
 
 CHAPTER XV. 
 
 
 UKINSUUANCE. 
 
 3tl. (iENEIlAI, UKMAUKS. 
 
 342. Lno isi.ATivi; k x a v t m k n t s~ 
 
 STATfTOKY I'ONDrTIOXS NOT AIM'I.IC- 
 
 AHI.l: — ASSKNT TO I! K ASO .V A II I. K 
 WAIVKK OK CONDITIONS. 
 
 !{|;l. UkcDNT AMIililC.VN l)i:i ISiON.S. 
 
 341. General Remarks.— Reinsurance is, of course, oi' much 
 later origin than insurance proper, being of comparatively recent 
 date. It owes its existence for the most part to a higher degree 
 of prudence, resulting from a more intimate knowledge, on the part 
 of the insurance companies, of the hazards against which tiiey 
 undertake to guard. It is merely insurance applied in a special 
 way and to cover iu whole or in part a risk already assumed.' 
 
 Another and equally important factor that did not long escape 
 tlie notice of insurers, and which has greatly contributed to tlie 
 development of reinsurance, is the tacility it otters the direct insurer 
 in allowing him to underwrite sums far in excess of what he could 
 safely carry on his own account. Tl.is affords him an opportunity 
 of transacting business on a much larger scale, whenever be wisjies 
 to avail himself of it. The extent of this branch of insurance, 
 especially in Europe, may be judged trora the tact that there are 
 many companies which contine themselves entirely to reinsurauce, 
 chielly tire and marine, dealing not only with the ordinary insur- 
 ance t'ompanies of their own country, but also with those of orhcr 
 countries. Such reinsurance transactions are eflectcd in many 
 instances on the basis of regular treaties, setting forth in exact 
 terms all the details of the understanding ; these trc ities arc cilhcr 
 " facultative,'' id est, tlu' iirst insurer viay offer the reinsurer any risk 
 he wishes him to share in, and the latter is at liberty to accept or 
 decline ; or they are "obligatory," and then the share of tln^ i>usiness, 
 which the one must give and the other must a('cei)t, and other par- 
 ticulars, are provided for in the treaty, and l)oth parties are bound 
 
 ' ('.'inailii Mill. K. Ins. Co. v. Norlliern A.sh. t'o., 2 A. K. ;i":t. 
 
 35 
 
 ■■■'i 1^ 
 
n&l -1: i! i: :; ; 
 
 
 546 
 
 INSURANCE LAW OF CANADA. 
 
 by these mutual obligations. Such reinsurance arrangements tend 
 largely to equalise the eifect of any extraordinary disaster and 
 thereby assist in eliminating the disastrous character from the in- 
 surance business.' 
 
 When companies, making a special business of reinsurance, 
 are involved in a risk for an amount in excess of the limit they 
 have fixed for carrying on their own account, they have to resort 
 to reinsurance themselves, which is then called " retrocession." 
 
 The reinsurer undertakes with reference to the first insurer, 
 what the first insurer undertakes with reference to the insured, and 
 subject to like rights, duties and obligations." 
 
 As a rule, therefore, the first company pays its reinsurers their 
 proportionate share of the premium received from the insured. 
 
 However, in the case of the Canada Ins. Co. v. Northern Ass. 
 Co.,^ the court declared that, when u company efl^ects a reinsurance 
 and the second company charges the same premium as the first 
 company states it is receiving from the person insured, when the 
 reinsurance premium is in fact less than the original premium, this 
 is not a misrepresentation which will avoid the reinsuratice. 
 
 312. Legislative enactments - Statutory conditions not 
 applicable. Roinsunincc was formerly prohibited in England,^ 
 unless the reinrsiired was insolvent, bankrupt or dead, because it 
 had been abused and perverted into a pretext for wager policies, 
 but it is now a perfectly legitimate business by the law and practice 
 of every country.' In Quebec, the Civil Code" expressly provides, 
 that the insurer may effect a reinsurance, and the insured may 
 insure the solvency of the first insurer. 
 
 As rogiirds Ontario, the Insurance Act' also gives special per- 
 mission to the same effect, by providing that the board may make 
 arrangements with any other company, registered to transact busi- 
 ness in the ])r(»vince. for the reinsurance of risks, on such conditions 
 with respect to the payment of premiums thereon as may be agreed 
 Ijetween them. 
 
 And the same Act makes reinsurance compulsory " in certain 
 cases, the Act providing that, where a company has ceased to trans- 
 act business in Ontario -ind has given written notice to that efiect 
 
 > Si'i- .luprn 8 H». '^ ("aimda Mutniil Vin' Ins. Co. v. SelmcfiT, 4 Otto (U.S.) 467. 
 ^ i; A. H. ST.'t. * Ht (!i'o. ir. c. :t71. ■' Phillips c. .-}, § 13 ; May, 10. 
 « C. C. L. C. 2177. Si-i' also U. S. C. 124, s. 7, (188«). 
 " (K) Vic, c. m (0.1, .s. 102. N 00 Vic, c. M (O.), a. 51. 
 
REINSURANCE. 
 
 547 
 
 ^1 
 
 n 
 
 
 
 to the Minister and to the Insurance Registrar, it shall reinsure all 
 such outstanding contracts as arc within the intent of section 48 in 
 some company or companies registered to do husiness in Ontario, 
 or obtain a discharge of such contracts, and its securities shall not 
 be delivered to the company until such reinsurance is effected to 
 the satisfaction of the Minister. 
 
 A further reference to this subject is to be found in the Ontario 
 Insurance Act,' where all the objects which may be covered by 
 insurance are also allowed to be made the subject matter of re- 
 insurance. 
 
 It has been said, however, that the object of the Act is to pro- 
 tect the origin. d insured from the companies and not to protect 
 the latter in a contract they may enter into for the sake of reducing 
 their own liability. Statutory conditions cannot, therefore, be 
 invoked in a case of reinsurance. This has been decided in I^re 
 Ins. Ass'n v. Canada F. rf' M. Ins Co.^- an action based upon the 
 following facts : — 
 
 The Dominion Ins. Co. insured one H. against loss by fire to 
 the amount of §5,000, and under a contract of reinsurance, made 
 between the defendants and tlu^ Dominion Company, the latter 
 company reinsured $2,500 with the defendants. Subsequently, the 
 Dominion Company entered into an agreement with the Fire Ins. 
 Association, whereby, after reciting that the Dominion Company 
 desired to be relieved from and guanuiteed against loss on existing 
 risks, and that the Fire Ins. Association had agreed to do so and 
 to reinsure said risks, the company transferred all their business 
 and the goodwill thereof to the Association, who thereby reinsured 
 all the existing risks, subject to the terms of the policies, etc., the 
 Association to take and accept all reinsurances made with other 
 companies, with power to use the company's name. A loss 
 occurrt'd on H.'s policy, which was adjusted and paid by the 
 Association. 
 
 In an action against the defendants to recover the amount of 
 the reinsurance, it was held, that the defendants could not escape 
 liability, for either one or the other of the plaintiffs was entitled 
 to recover, ajul that there was nothing in an objection raised as to 
 double indemnity. 
 
 The court also decided, as said above, that the statutory con- 
 
 ! I i 
 
 !;;•:!' 
 
 '■: 
 
 ' (k) Vic, c. ;)ii, s. Hid. 2 -2 o, H. (SI, y.n.n. 
 
 ' 
 
i 
 
 ^11 
 
 m I' ■ 
 
 I'l-- 
 
 548 
 
 INSURANCE LAW OP CANADA. 
 
 ditio»8 could not be imported into and read with either the agree- 
 ment between the plaintiffs or that between the Dominion Company 
 and the defendants,' and that the defendants' contract of reinsurance 
 did not prevent the plaintiff's from assenting to any reasonable and 
 proper waiver or conditions made in good faith, and not shown to 
 influence the loss or increase the burden of the reinsurers ; an 
 assent, therefore, given by the Dominion Company to a chattel 
 mortgage on some of the insured goods, without the defendants' 
 knowledge and assent, did not release the defendants. 
 
 Under a state of facts similar to those stated in the preceding 
 case, except that the insurance was of one C.'s property, it was 
 held,' that the plaintiffs were entitled to recover for treating the 
 agreement between the plaintiffs as a reinsurance, (though more 
 properly a transfer of business with its liabilities and collateral 
 securities), if it was of the whole amount of the Dominion Com- 
 pany's liability ; the Association having paid the whole loss to the 
 company, or which was the same thing, to C, were e ititled, 
 irre8[»ective of any assignment, to contribution from defonc^ nts ; if 
 however, it was only of the residue of C.'s risk, the defendants were 
 still liable to the company on their policy, and by the very terms 
 of the agreement it was effectually assigned to the Asi-ociation, who 
 accjuired all their co-plaintiff's rights and interest in it. It was 
 alst) held, <^hat the statutory conditions were not applicable to such 
 a contract of insurance as in this case. 
 
 All companies licensed under the Insurance Act of Canada, 
 with the exception of assessment life insurance companies, and all 
 companies licensed under the Ontario Insurance Aet, except mutual 
 tire insurance companies licensed only for the insurance of farm 
 buildings and of isolated risks (such risks being other than mercan- 
 tile and manufacturing risks), are required to maintain a reserve 
 sutHcient to balance their actuarial liabilities.- The rule for calcu- 
 lating this contingent liability of any ci>mpany in respect •>) " ,, 
 insurance contracts varies according to the kind of businei-.s i , 
 taken. In tire and inland nuirine insurance, it is the rein-.! -i; » 
 value of all risks outstanding in Canada,' or the reinsnranc- s'li :.. 
 of all risks outstanding in Ontario.' as the case may be. 
 
 ' y .C\ 2 O.U. Iit5, iintl see Clarko V. l-nioii l''iri' Ins. Co. C'laiin of (lie A(j;rii.'ul- 
 tural Fire Ins, Co. of Wiiterlown, (i O.R. 010. S. C. Mcl'liee's il.iini. ill. (iH."). 
 ■•' R. S. C;, in, H. I), 1(1 ; fH) Vie., e. :«( (O.) s. 1."). 
 » H. S. C. 124, s. It, 10. * W Vic, c. :«( (O.) h. I."). 
 
 PV ' 
 
REINSURANCE. 
 
 649 
 
 The usual reinsurance valuation by insurance departments is 
 es follows : In fire insurance, the reinsurance value is taken at 50 
 per cent, of the gross premiums received and receivable ; in ocean 
 marine insurance, the reinsurance liability is 100 per cent, of pre- 
 miums received on risks in force ; in casualitv insurance, it is 50 
 per cent, on yearly risks and part of the premiums proportionate 
 to the unexpired time on risks written tor a longer term ; in fidelity 
 and guarantee insurance, it is 80 per cent, of the yearh' premiums 
 on risks outstanding, or 80 per cent, of the yearly premiums on 
 court bonds and 50 per cent, of the yeai'ly premiums on the 
 ordinary fidelity business. In life insurance, the reinsurance reserve 
 of companies licensed by the Dominion or by Ontario is based upon 
 a valuation of the policies according to the mortality table of the 
 Institute of Actuaries of Great Britain, interest being taken at 4J 
 per cent, per annum and the pure premiums only being taken.' 
 
 343. Recent American decisions. The amount of the re- 
 insurer's liability to the reassured is the sum which the latter is 
 legally liable to pay the original insured, and it is not subject to be 
 reduced by the insolvency of the reassured and his consequent in- 
 ability to pay to the original insured the full amount for which he 
 is liable."' 
 
 In Faneuil Hall Ins. Co. v. Liverpool <& London (& Globe Ins. 
 Co.^-^ it was said, that there is nothing in the nature of the contract 
 of reinsurance or of indemnity inconsistent with the power of the 
 original insurer or its agent to assent to the assignment of the 
 policy. 
 
 ' R. S. C. 124, s. 25, ss. 10, s. ;W, ss. 7, and see Hunter's Ont. Ins. Corpus Act, 
 1802, p. (S. 
 
 "1 Marshall on Ins. 1 IH ; Hone v. Mut. Safety Ins. Co., 1 Siinfonl Rep. Sup. Ct. 
 of City of N. Y. 137 ; Herckenriitli v. Am. Mut. Ins. Co., 3 H(ul)our"s Chan. R. <N. Y.) 
 ft3; Cashau v. North Wi-stern Nat. Ins. Co., .') Diss. t7(t, 47!t. 
 
 '■> (ISOl) 1.53 Mass. (13 s. e. 2(t N. K. Rep. 244.— Vidr .'iiiprn S 3t2, and see also Imp. F. 
 Ins. Co. of London v. Home Ins. Co. of New Orleans ; Royal Ins. Co. of Liverpool v. 
 do., (58 Fed. Rep. (ISJ).")) (tl)H, as regards application of co-insurance clause. -Union Ins. 
 Co. of San Francisco v. American F. Ins. Co. of N. Y., 40 I'ac. Rep. (lSit.")> 431, as to 
 commencement of reinsurer's liat)ility. -(ternnin-Aincrican Ins. Co. v. Com. F. Ins. 
 Co. (Ala. 1892) 11 So. Rep. 117, on ed'ect of " usage" in intcri)retinK contracts. 
 
HIP, Hl>> 
 
 IS ' 
 
 
 i 
 
 iff !•» ■!; "! J ': 
 
 1,;!,'i^ 
 
 >h 
 
 !!!'i 
 
 i 
 
 CHAPTER XVI. 
 
 LIABILITY FOR LOSSES, WAIVER OF CONDITIONS, SUBROGATION, 
 
 ARSON, ETC. 
 
 344. Gkneral remarks. 
 
 111"). LrAllII.ITY IN FIUK INSlTRANfK 
 — CO.VSKQIIKNTIAI. DAMAOE — XKOLI- 
 OEMi; — EXTKNr OK LIABILITY AND 
 MKASl'llK OF DAMAOES — AMHKiUOUS 
 AND I'ON'I'RAnRrORY PROVISIONS — 
 CHANCE A.N'I) INCREASE OK RISK. 
 
 ;Uli. Loss IIV REMOVAL AND THEFT 
 AT A FIRE. 
 
 :U7. UaMAOE HV EXPLOrilOX — DEFI- 
 NITION OF "OAS." 
 
 :tJH. Clai'se as to forest kires. 
 
 ;{4i). IdENIITY ok I'ROPERTV—UENE- 
 KU'IARIES OK FIRE INSURANCE CON- 
 TRACT. 
 
 ;{.")it. Waiver ok condii'ions. 
 
 It.il. Loss occul^RIN(; wm'hin delay' 
 
 GIVEN FOR PAY.MENT OK RENEWAL 
 PREMIITM — PAY.MENT OF PRE.MIUM 
 
 AK'IEU LOSS. 
 
 •i^yl. Ui;l'ORMATION OK CONTRACT — 
 MISTAKE IN AMOUNT OK POLICY— DUR- 
 ATIO.N OK CONTRACI' -IOMPANY's 
 
 KNOWLEIHIE OK INSURED'S INTENTION 
 TO HENi;\V. 
 
 II.");}. SuultOliATION — Loss OK LIKE 
 THl{OU(ni NEliLKiE.VCE OF RAILROAD 
 COMPANY— MAKCUILLIER EN CIIAROE — 
 LANDLORD AND TENANT— NEIil.ICENC^E 
 OK MUNICIPAL SERVANTS —• WIIAUKIN- 
 HEHS' POLICIES— VENDOR A.ND PUR- 
 CHASER. 
 
 ;).'>4. Slip ok policy, ekkect ok. 
 U55. Insurance aoainst kire ok a 
 
 STEAMSHIP IN DOCK DOES NOT C.)VER 
 IT WHILE .MOORED IN THE RIVER. 
 
 ;j5(i. Place ok pav-mknt— Lex loci 
 
 CONTRACTUS— PAY.MENT INI'O I'OURT. 
 
 ;r)7. 1)1 VISIHLE SURPLUS — DISCREI'IO.N 
 OF ACTUARY AND DIRECTOR.S. 
 
 .338. Title to life insurance police 
 --debtor and creditor— sale and 
 redemption ok an.nuity— insurance 
 
 EFFECTED BY A FATHER ON HIS SON'S 
 LIFE— LIFE ASSURANCE AS SEl'URITY 
 FOR .MONEY ADVANCED BY TRUSTEES 
 OF WILL— APPLICATION KOR LIKE AS- 
 SURANCE ACCEPTED BY , ')MPANV, AND 
 MATERIAL ALTERATION OK RISK BE- 
 FORE TENDER OK PREMIU.M — POLICY 
 LOST, DECREE OF COURT— SURRENDER 
 VALUE NOT CHANOEABLE— FORFEITURE 
 OF POLICY —PRESUMPTIO.N OK DEATH 
 FROM ABSENCE FOR SEVEN YEARS. 
 
 3.1>J. De facto directors— I'EKSONS 
 FALSELY ASSUMI.NC TO CARRY UN COM- 
 PANY'. 
 
 'M). Remittance hy aoenis in ex- 
 cess OF l)ALA.Nt:E DUE— RENEWAL OF 
 LAPSED policies, ALTIIOlHiH IIIERE 
 WAS .NO SPECIFIC API'liOl'RI A TION. 
 
 'MX. 1'AYMEN'I' ex liDATIA OK LOSS 
 BY E.KPLOSION —LIABILITY (iK DTREC- 
 TORS. 
 
 Hty. Kkkect ok war. 
 
 Itlilj. Arso.N— KELONIOUS ACT OK WIKE 
 
 of assured— forfeiture ok insur- 
 ance kor huildi.nd and contents- 
 evidence ok arson — arson com- 
 mitted bv aiie.ni' of assured • past 
 ai'TEMPT ok arson no increase of 
 hazard — i'lle fact ok many previous 
 kires not ad.m1ssibl1-: in suppdhi' of 
 
 ARSON. 
 
 :{((4. Plate (ii.Ass insura.nxe- prox- 
 
 I.MATE CAUSE OK DAM A(iE— NOTICE OF 
 
 LOSS TO AUENT. 
 
 ;«i5. Liability in accideni' insur- 
 ance -VOLUNTARY EXPOSURE TO U.V- 
 
 nei:e.ssary dander— cause ok death 
 
1' 
 
 LIABILITY FOR LOSSES, WAIVER OF CONDITIONS, ETC. 
 
 551 
 
 ; <■ 
 
 t 
 
 — EXTERNAL, VIOLENT, ArCIDENTAL 
 AND VISIBLE MEANS— SUPEIIVENTION 
 Ori- DISEASE— LKOAL PRESUMPTION IN 
 CASES OF INJURIES— ACCIDENT OR SUI- 
 CIDE—TOTAL DISABILITY FROM OLD AGE 
 —employer's LIABILITY, AN INFANT 
 AS MEMBER OF AN INSURANCE SOCIETY 
 —CONSTRUCTION OF THE TERMS ''ANY 
 ONE accident" and "FROM (SUCH 
 
 a date)"— accident insurance by 
 newspapers. 
 
 366. Liability in guarantee in- 
 surance—bank MANAfiER ALLOWING 
 OVERDRAFTS — (JROSS NEOLKiENCE — 
 
 SUPERVISION OVER HOOKS— NOTICE TO 
 COMPANY — DURATION OF COMPANY'S 
 LIABILITY — FRAUD AND DISHONESTY 
 AMOUNTING TO EMBEZZLEMENT — RE- 
 COVERY OF PART OF THE MONEY — 
 CLAIM NOT AFFECTED BY BANK lOM- 
 MUNIC. riNC. WITH ABSCONDER— EVI- 
 DENCE OF PREVIOUS FRAUDULEN.' AC i 
 ADMISSIBLE— PROSECUTION OF DISHuN- 
 EST EMI'LOYEE AS A CONDITION PRB- 
 CEDENT— GUARANTEE INSURANCE A8 
 API'LIEI) TO DEBENTURE-HOLDERS AND 
 TO BANK DEI'OSITS. 
 
 344. General remarks. — 'I'he foundation of the entire buBiness 
 of insurance in all the various branches of contingencies to which 
 commercial enterprise or the idea of mutual assistance is applying 
 it, is liability, or rather the transfer of lial)ility from the individual 
 to a corporation created for that purpose. While, therefore, all 
 the manifold questions treated of in the preceding chapters of this 
 work are really nothing more or leas than questions of liability, 
 though grouped under difterent headings, it has been found con- 
 venient to bring together those points which have not yet been 
 discussed, or which may l)e looked at from a different aspect, under 
 the general title of "-liabilitj'." 
 
 345. Liability in fire insurance' — To make the underwriter 
 liable under a fire policy, the loss or damage must be caused by 
 fire ; either by actual ignition of the property itself, or of some 
 substance near by, causing the damage. Fire V>y actual ignition 
 must be the proximate or efficient cause of the loss and not merely 
 incidental to it. No liability attaches for damage l)y heat or 
 smoke occasioned by the misapplication of fire-heat during the 
 process of any manufacturing. Heat is not fire under the insur- 
 ance policy ; if there be no ignition there is no fire.' 
 
 A fire insurance company is also liable for consequential 
 damage, that is loss or damage, although not a necessary, never- 
 theless a natural or usual consequence of a fire, as from water used 
 to extinguish the flames, the falling of floors, walls, etc.- 
 
 The Civil Code of Quebec provides, that in fire insurance the 
 insurer is liable for losses caused by the insured otherwise than by 
 fraud or gross negligence.'' 
 
 1 Griswold, ZMh = Griswold, 140. 
 
 •I C.C.L.C. 2."i78; Aiiiiell 122&s«<i. ; AIauzet431 ;3 Kent 374 ; iiiul sec .loliiistoii v. 
 Dominiou Ins. Co., 23 A. K. 721t, iii/ni. 
 
 if 
 
 ilM 
 
 I ! i ■■ 
 
 !i:! 
 
m 
 
 m 
 
 if 
 
 II, /■ 
 
 m 
 
 552 
 
 INSURANCE LAW OF CANADA. 
 
 He is also liable for losses caused by tbe fault of servants of 
 the insured, committed without the insured's knowledge or con- 
 sent.' 
 
 And for losses which arc the immediate consefjuence of fire or 
 burning, from whatever cause it may arise, including damage to 
 the things insured suffered in their removal or by the means used 
 for extinguishing the fire ; sultject, of course, to the special excep- 
 tions contained in the itolicy." But he is not liable for losses 
 caused merely by excessive heat in a furnace, stove, or other usual 
 means of communicating warmth, when there is no actual burning 
 or ignition of the thing insured. ' 
 
 In the absence of any express condition, negligence is one of 
 the risks ordinarily insured against. It is settle<l law, that short 
 of wilful negligence, which may amount to an overt act of felony, 
 the insured is entitled to indemnit}' for his loss arising therefrom, 
 that being one of the principal risks, to guard against which is the 
 object of insurance. It matters not whether the fire, which causes 
 the loss, be lighted improperly, or, after being properly lighted, be 
 negligently intended, in either case the company will be liable.' 
 
 In Quebec, b}' legislative enactment,' any alteration in tbe use 
 or condition of the thing insured from those to which it is limited 
 by the policy, made without the consent of the insurer, by means 
 within tlie control of the insured, and which increases the risk, is a 
 cause of nullity of the policy. If the alteration does not inc^rease 
 the risk, the policy is not affected by it 
 
 In Ontario," Manitoba" and British Columbia,M)y statutory 
 condition, any change material to the risk, and within the control 
 or knowledge of the assured, avoids the policy as to the part 
 affected thereby, unless the change is promi)tly notified in writing 
 to the company or its local agent, and the company, when so noti- 
 fied, may return the premium for the unexpired period and cancel 
 the policy, or may demand in writing an additional premium, 
 
 i '. 
 
 'r- 
 
 iC.C.L.C. 2570. 
 
 a C . C . I. . C . 2Mt , AiiKell 1 1.5 ; 2 Pardcnsus, n. .5!).5, p. tiW ; B. A. Ins. Co. & Joseph, 
 L. C. U. UK, infra S Mi). 
 
 'C.C.L.C. 2.T«1 ; Pothier Ass., c. 1 ; 2 Par. 494; Ellis, 77; Auk- 111 ct seq. ; 1 
 Bell, Com. iWO. 
 
 *.lolinston V. Dominion Ins. Co., 21! A.H. 72it. Maclennan, !). See also Pool v. 
 Mil. Mech. Ins. Co., (i.5 N. W. Rep. .54 (1H1).5), referred to iii/rn, p. .550, note. 
 
 5 C.C. L.C. 2574 ; 3 Kent 374 ; 2 Par. n. .5Ko ; Houd. n. Hit ; :{ Par. n. mi. 
 
 « 0(1 Vic, e. :!0 (O), .s. ItW, ss. «. " R.S.M. l.SDl, e. .5i», stat. con. 3. 
 
 " B. C. Ins. Policy Act, 181)3, c. 12, stat. con. 3. 
 
1 
 
 !! 
 
 LIADILITY FOR LOSSES, WAIVER OF CONDITIONS, ETC. 
 
 553 
 
 wliich the iiirtiired slmll, if ho desires tlie contiimance of the polity, 
 forthwith pay to the conipuny. and if he neglects to do so, the 
 policy is no longer in force. 
 
 The Ontario Insurance Act, 1897,' provides as follows as to 
 what may and what may not form the subject of fire insuramo : — 
 
 a Property which may be insured - : — Dwelling houses stores, 
 shops and other buildings, h.)useliold furniture, merchandise, 
 machinery, live stock, liirm jtroducc and other commodities. 
 
 6 Property which may not be insured': — Money, books of 
 account, securities for money, and evidences of debt or title. 
 
 c Property which is not insured unless mentioned in the 
 policy' : — Plate, phiti-glass, plated-ware, jewellery, medals, paintings, 
 sculptures, curiosities, scientific and musical instruments, bullion, 
 works of art, articles of vertu, frescoes, clocks, watches, trinkets 
 aiul mirrors. 
 
 The condition in a fire policy, that insured shall not keep 
 ashes in a wooden vessel in or near the building insured, is not 
 violated by thedejiosit of cold ashes in his building b} the insured.' 
 
 Ill case of loss by fire, the insurer is liable for the whole 
 amount of tht; loss not exceeding the sum insured, without 
 deduction or average." 
 
 But the sum insured does not constitute any proof of the 
 value of the object of the insurance ; such value must be established 
 in tiu' manner retpjired b^' the conditions of the policy and the 
 general rules of proof, unless there is a special valuation in the 
 policy." If the evidence leaves a certain amount of doubt as to the 
 actual value of the buildings tU'stioyed, the balance should be 
 turned against the insurance company rather than against the 
 insured.^ Insurers should exercise vigilance as to over-valuation 
 when tliey are taking risks and accepting the premiums, rather 
 than after the loss occurred and they are called upon to discharge 
 their part of the i)bligation.'' 
 
 It was said in E<juitable Fire Ins. Co. v. Quimi,^'^' that an insur- 
 ance company is responsible to the party whose stock in trade is 
 
 ' 00 V'ic, c. »! (O). - ib. s. KHi. » ib. h. KW, ks. 6. * ib. s. KiH, ss. 7. 
 
 » Mut. Ass. (Jo. of MoiitiiiiiKny & Chafbouneau. 1(1 K.L. 27.5, 15 Q.L.R. Sii. 
 'C.C.L.C. 2.">82.— Peddle V. Quebec Fire Ass. Co., Stuart's Reports 174, K.B. 
 <1824).— 1 Ph. •.m.-~\ Hell, Coin. .>!:{. 
 
 ' C.C.T-.C. 2.57.5. —2 Al!iuzet,a04.-AnKel, 11-1 Hell, Coinm. .542. 
 8 Vide rule contra proferentem, repeatedly referred to. 
 "Citizens Ins. Co. v. Lefraii^ols, H.J.Q., 2Q.H. 550, Q.B. 
 •«Q. U. 11 L.C.R. 170. 
 
 i!Li 
 
 1 ! 
 

 I'H 
 
 
 654 
 
 INSURANCE LAW OF CANADA. 
 
 insured by them, for the actual market value of such etock at the 
 time of the loss by lire, and not for the cost price thereof, or the 
 sum which it may have cost the party insured to manufacture 
 such stock, notwithstanding that the assured has not insured his 
 profits upon the objects insured. 
 
 But in a recent Ontario case,' the insurance was against loss by 
 fire to jl stock of woollens and dry goods, which had cost $96,522 
 to lay down in the warehouse. The policies expressly covered 
 goods '•'• sold, but not delivered." A fire having occurred, it was 
 claimed by the assured that, for the purpose of fixing the sum to 
 be paid by the insurance companies, the value of certain goods, 
 which the assured had contracted to sell, must be held to be, not 
 the cost price, but a greater sum which was to be arrived at in one 
 of two ways, (a) by taking the price at which the assured had 
 agreed to sell, $33,186.00. (The com[)anies had paid upon the 
 basis of this price less 21 per cent.), or (6) by adding to the cost 
 price the expenses incurred in purchasing and selling these goods ; 
 and it was claimed in the alternative that, even if tlie goods, con- 
 tracted to be sold, had not all thereby acquired a new value, in any 
 event the value of certain part of them, contracted to be sold for 
 $15,488, and which could not be duplicated in time to fill the 
 orders, n>u8t b(( arrived at in one ot the ibove ways suggested for 
 arriving at the value of all the goods contracted to be sold. 
 
 The arbitrator, Mr. Justice Morgan, however, did not give 
 eftect to any of the plaintift's contentions, but held, that the actual 
 cash value was to be taken, and that such value was the cost of 
 laying down the goods in the warehouse, not including travelling- 
 buyers' expenses, nor any charges or expenses incurred in the 
 business after the goods had passed into stock. The chief ground 
 of his judgment Avas, if fire insurance companies were held liable 
 for the difierence between the cost of goods to a mei'chant and the 
 selling price of such goods, it would practically be an insurance of 
 the merchant against any bad debts caused by the insolvency of 
 the buyers of his goods. This, the judge held, was not contem- 
 plated in the policy of insurance, or imiilied by its terms. 
 
 It has been held, that the measure of damages, recoverable by 
 a tenant for life of the insured premises, is the full value of such 
 premises to the extent of the sum insured,' And in a case where, 
 
 ' In re Darling. Judgment iit Toronto, O.Tan'y, 18!)7. 
 
1''! 
 
 LIABILITY FOR LOSSES, WAIVER OF CONDITIONS, ETC, 
 
 555 
 
 by by-laws printed on the policy, det'eiulant's liability was limited 
 to two-thirds of the actual loss sustained, and the amount to be 
 taken on one risk was restricted to $2000, the plaintiii's loss was 
 $2,200, and the other insurance company paid the full amount of 
 their liability $1000, it was held, affirming the judgment ot Fal- 
 conbritlge, J., that the plaintitt was entitled to recover as damages 
 two-thirds ot the balance of his loss, atter deducting the amount 
 of tlie other insurance.^ 
 
 And in McCaavj v. Quaker City Insurance Co.,' tlie court 
 declared, that depression in the value of steamers generally, from 
 circumstances which may have no reference to the original cost, 
 etc., ca!)not be taken into account. 
 
 Where, by a condition of the policy, the insurers are in no 
 case to l)e liable for any greater proportion of the loss than the 
 amount insured by them bears to the total insurance on fne prop- 
 erty, they are entitled to have the claim reduced in accordiince 
 with such clause, though the other insurance be still unpaid and a 
 contestation in relation thereto be still pending.' 
 
 In another action it was held, that in the case of certain un- 
 determined cpiantities of ashes, belonging to ditforent persons, 
 damaged by water and subsequently destroyed by lire, each of the 
 parties interested was bound to bear his proportion of tlie reduction 
 made upon the amount insured, by reason ot the loss caused l)y 
 water, inasmuch as there were no means ot ascertaining to whom 
 the ashes damaged by water belonged.' 
 
 1 Caldwell v. Fire & Life Ins. Co., 11 S. C. U. :il2. 
 
 -' Alclntyie v. Kawl Wilhiiins .Mat. Fire Ins. Co., IS O.K. 79. Cli. D., and see Grivham 
 V. Out. Mut. Ins. Co., 14 O.H. :r.,S. 
 
 ■ IS U. C. Q. 15. lie]), lai. 
 
 * Heron v. Hartford Ins. Co., Jkl.L.U., 4 S.C. ItSS. 
 
 It WHS held in lioyal Ins. Co. v. Melntyre, (Te.x.) :)."> h. R. A. ()72, that, so long as 
 the remnant of a buihliiij;, whieh is left standing:, is reasonably adapted for use as a 
 basi.s, upon whieh to restore the buildinii to the condition in wliich it was before 
 injury, there is no total loss. 
 
 ■■ (iilnionr rt ill. v. Dyde .7 a/., V> L.C.R. :«;, S.C. Wil. 
 
 In (Jerinania Fire [ns. Co. v. Deekard (1S!)1). ;^ Ind. App. ;i()l, :i(i(> ; 111. Mul. Ins. 
 Co. V. Ilollrnan (1S8!)), ;U 111. App. 2ur, ; Home .Mut. In.s. Co. v. Roe (1SS,S), 71 Wis. 3a ; 
 De Grair v. Queen Ins. Co. (ISSH), ;j,S Minn. .501, it was said, with reference to deter- 
 mining the liability of an iiisiiranee eomi)any, that ambijiuous or contradictory pro- 
 visions must be liberally interpreted and benefit of doubt be given to the assured. 
 " Haviiig indemnity for its ol>ject, the contract is to be construed liberally to that 
 end, and it is presumably the intention of the insurer that the insured shall under- 
 stand, in case ot loss he is to be protected to the full extent which any fair inter- 
 pretation will give."— In Pool v. Mil. Mech. Ins. Co., (io X. W. Rep. 54 (1SU5), referred 
 
 1^ 'i ' 
 
566 
 
 INSUUANCK LAW OF CANADA. 
 
 If liiis 1)0011 hold tliiit, wiioro tlio words in a condition in a 
 poliov iii'o, " if tlio risk lio inoroasod or olian_a;od l)y uiiy moans 
 Avliatovor," the tonn " ohango " nnist l»o hohl to \n'. nsod rathor hh 
 a syiKiiiyiii of " inoreurto," than asaword of dittori'iit siifnitioation.' 
 
 In Olliiira cf- Ridean Funintrdiii;/ Co. v. Llrerjwul <!'• IjOiidan <t 
 GI.dIic Ills. Co.- it was liohl, that (diaiigo "'of (or in) ociMi|(atioii," is 
 dithM'ont from ''oliango in tlio natiiro of tho oooii[)ation." Hut it 
 was lioid. if tlio condition is direct od ai;'ainst chaiigo of occupant, it 
 must lie onforcod. Tlio person in actual occ.ipation may ho 
 material, and may have lo<l to the malciii!:; of the contract. 
 
 It has heoii held a violation of the policy to [»hu'e a danijeions 
 giXii machine in tho l)iiiUring assured, without tho consent of the 
 assurer.' 
 
 It was hold ill Quehei', in the ease of a tiro [tolicyon huihlings 
 doscrilicd as dweHings, endorsed to the otroct, tluit "any change of 
 oct'U[ialion hy which the risk is increased, must he iiotiiicd in 
 Avriting to tho in8u;'juu;e company and endorsed on the policy, and 
 that, in default thorool, tho insurance shall ho null ami void," tho 
 change of oeoui)atioii to a tavern, without notice to or consent ot 
 tho comjiany, did not render the policy void, when the jury stated 
 in their s[)ecial tindiiigs, that an inti'rmodiate I'hango of occupation 
 into a vinegar factory had heen sanctioni'd hy the company, and 
 that the risk oi tlu' tavern was not greater than that of the vinegar 
 factory.' 
 
 to ,s'i(/i/7/, il wiis s;iiil tliiit, wlu'llicr till' use of ct'rtaiii inllainmiihlc sulphur I'lindli's 
 by iiisurod, to iMiiiiniilt' till- Kooils covcrt'il by iiisuniiice, iiicrt'iistMl llio Ii.i/.anI by 
 nu'iiUH williiii his I'oiilrol or kiio\vl('(l;;c, within lln' prohibit ion of tlic policy, is li 
 qui'Mtioii of fiii't for the jury, 
 
 ' (iill v. I'aiiiulii K. i^t M. Ills. Co., I O 1{ ;)ll; Oltiiwii Co. v. I.'pl, \. lAlii k 
 Globe Ins. Co., iSQ.U. 52^, jipprov('<l of. 
 
 - -il L. N, 27.S. 
 
 A house bi'iiiK only occupiod purl of tlu' limi', was lu'hl in liishop v. Norwich 
 rnion K. Ins, Soi',, L'.") ,N. S, I,ii\v Hep. lltL', imiI an occupancy within the tnvaninn of 
 thi- policy, 
 
 ■■' .Mathews V. .Northern Ins. Co. :! li.l, \M. 
 
 Ill ■ernian Ins, Co. v. Marl, Hi Ky. I.aw Hep. (ISlMi, III 1, it was lii'ld, that the ns(' 
 of II steam thresher near a barn did not vitiate the policy, and the fact that the lire 
 was caused thereby, ilid not necessarily biinn " within the prohibit iii>; clause. 
 
 *ii 11 , Campbell v. Liverpool & Louilon .^ (ilobe Ins, Co., l:» L.C .1. :tlllt. 
 
 In iMiineh, K, I. Co, v, (inerin, rited su/ira and iiil'nt (see l^'dex), now in Snpreiuo 
 Court, it seems to hiivi! been iisHunied, continninu Mlack v. National, that a chaiiKO 
 of oeeupalion doen not atl'eet the riKht of the inorlganee. 
 
 See also sii/trii S -"I*, imd .Mart in v. Capital Iiis, (Jo, (ISllli), ,s,"> Iowa (lilt, for a easo 
 of uiuiuthorl/.ed use of building: tlu eoiu't holding that, where ii policy coiilaincd 
 
m 
 
 m 
 
 MAHIMTY Foil LOSSKS, WAIVKll OF CUNDITIONS, ETC. fj'x 
 
 UiiU'ss lorinally stipiilatcd, tlic iiisuriMl is not bound to iiotily 
 the insiir(>r that hi' lias tiypotliocatcil tlu> tliini^s assurod.' 
 
 W^litTi' a siH'ond ni()rt<j:;aL''i'(' insnros in the nanio of the inorf- 
 eri'i^or. hni loss |>a_val)lo to hinisoU", tlic lirsf niorttragcf may rcciuire 
 tlu' nioni'y paid by the company to bo applied to repairing, ro- 
 l)ii:ldiiiH- or rc-instating the [>roporty.- 
 
 An ('ndorscnuMit on a policy issued undci' tlic provisions of 
 til" Act 4 William lA''., c. ;5M, consontiiiu' to tlic removal ot tlic 
 goods iiisui"c<l, from the building described in tlic[)olicy to another 
 building, and signed by the secretary alone, has Ixicn considered 
 binding on tlu- company.' 
 
 316. Loss by removal and theft at a fire. — As a ruK>, the 
 conditions of a iiri' insurance provide for a ratalile contribution on 
 the part of the coni[)any for dainages sustained in cases of removal 
 ot' l»roperty to cscapi' conllagratioii.' 
 
 Notwilhstanding such conditions, however, the company was 
 held resi)onsilile tor the lull amount in 'riniuipsDii v. Mniitrcdl Fire 
 III". Ci).' 'I'he court said, that ratable contribution was to be con- 
 lined to mere cxptMiscs of any salvors, or exjienses of saving what 
 was saved, and that the clause in ([uestion gave the insurccl a 
 renieily fur something beyond compensalion for his goods destroyed 
 (U- injured in conscMpU'ncc of a Hre.'' 
 
 in tlu- i-asc of Uiirris V. LiiiiiIdii ,{• Liinf(tshirc Fire Ins. <':i' 
 also, MiMH'ditli. C\.l., charged the jury to follow the rule laid ilown 
 by .Mr. .Iiislicc Monk in the case ol Mi-dililmn v. (^ini'cii fns. Cn.,'^ 
 and alterwards followed bv the Supcrioi' Court at Monti-eal, to 
 
 IK) t'Njircss |(iii|iiliiliip|i of H cIkihij;!' ill ( 111' use ol I lu' liiiililiii(.;, I hi' r.'iil , t liiii il » tis 
 usi'il liir II iliU'rriiil piir|ii)-<i', dill 111)1 avoid t lii' poliry, iiMii I lir llli'K'il nhIi' of iiiloxl- 
 <'iiliii!:; lii|iior^ roll Id iioi !»' said. Jis ii iiiiUI it of law. lo iiii'ri'asc llic I'isl;. " IT llic im- 
 iml Imiizril il-c ol' llic l)iilldiiiK incri'iiscs the I'IhU, It is t'lilii't'ly iimii.ili'ri.il iis In 
 wlii'l lii'i' or iiol MU'li lisi' ciuisi'd 111- riiiilriliiili'd lo I ho loss." 
 
 Ill ,Moi)iii'\ \. (lli'iis I''iiIIn Ills. Co., ."iJ Li'pii Inli'll, dsil.")) l:il, ii was said, lliat 
 al)aiidoiiiiii'iil 111 pruiiiiscs ri'lii'vi-s comiiaiiy IVoiii liaUilil v. 
 
 I .Mm. I ill' Ins. I'll, ol liii'liiiioiid \ I''i'i>, I I U.I.U. 2m. Hi I! I. Hil. 
 
 'J Set" Can' v. I'". I. Co., II O. |{. IS7. and iiI.ho |{. S. ( ). ISS?, r. IIIJ, s. I d). 
 
 ^ig.lt Clialiiit'is \- .Miiliial Kirc liis. Co., ;t l,.C .1 :>. 
 
 ■> Si'i' .si(/irf( ;;!! :iis. p. :t|-j (.")) \' 'JUt, p. iltil. (xii). ■ i:i I, \. :t:u. 
 
 " Sci' also : Mcljiircii v. Coin in. I'ti. .\ss. Co., lii .\. K. -JTli, i.S: src I)i'\ liii v. (^nccii 
 Ins, Co., Hi I ' . C (^ M (MI, .iii/irii. Scinlili', llial a Hit polii v. wliii'li is a I'onI nii'l 
 of IniU'iiiiiii.v. I'lirrii's \\ iili il. I'M'ii iri'cspri'livc of coiidilions lo I hai I'M'i'rl, a pro 
 vision I ha I I III' iiisiii'i'd shall iiol, willi I he fraiidiih'iil inli'iil ion of llirowin^ I ho Iosh 
 on III!' iiisiin'r, wilfull.v I'ansi' or refrain from laUiiiH: ini'aiis wilhiii his powi-r, lo 
 jiri'vciii fill' (IrH'i'iu'lioii of Iht' iiiHui'i'd pi'opi'il V. 
 
 " 1(1 I,.C..I "JdN, infra, p. "ifis. " Ih. 'J'JT, iii/rii, p. ."mS. 
 
~m''' 
 
 
 
 658 
 
 INSURANCE LAW OP CANADA. 
 
 wit : — " That the vahie of goods which, without any fault on the 
 part of the insured, are lost or stolen during the confusion caused 
 by a tire, or whilst being removed from the burnitig premises, 
 ought to be borne by the insurers." In this last case, however, 
 the fire occurred in an adjoining house, and the loss incurred by 
 the insured was caused by removal only. 
 
 The general principle of law in the matter of theft at fires, 
 where the policy is silent upon the subject, is as follows : — 
 
 " Loss by plunder of goods removed away from a fire and so 
 put out of the control of the insured, in common practice is 
 treated as directly incidental or consequent to the fire and covered 
 by the policy." 
 
 But to meet this, most fire policies have a stipulation except- 
 ing all liability for theft at or after a fire upon premises covered 
 by insurance, and such clauses are held valid in all cases. 
 
 In McGihbon v. Queen Ins. Co.,- the company was held liable 
 for goods stolen at the fire ; but, in the absence of satisfactory 
 evidence that certain goods, the value of which is claimed, were 
 either actually destroyed or damaged by lire or stolen, the claim 
 cannot be recovered. 
 
 347. Damage by explosion Definition of "gas." — A policy 
 of fire insurance contained the following exception : "Neither will 
 the company be responsible for loss or damage by explosion, 
 except for such loss or damage as shall arise from explosion by 
 gas." In the premises of the plaintiti (the insured), who carried 
 on the business of extracting oil from shoddy, an infiainmable and 
 explosive vapor evolved in the course of the process, escaped and 
 caught fire, si'tting fire to other things ; it afterwards exploded and 
 caused a further fire, besides doing damage by explosion : — 
 
 It was held, first, that the word " gas " in the i)olicy meant 
 "ordinary illuminating coal gas." Secondly, that the exemption 
 of liability for loss by explosion was not limited to cases where 
 fire was originated by the explosion, but included cases when' the 
 explosion occurred in the course of a fire, and that it exi-mpted the 
 defendants in respect both of the damage from the explosion itself 
 and of the damage done by the further fire causet' by the exjtlos- 
 ion.* 
 
 I Griswold, 581. '' 10 li.r.J. 227, siipt-n, p. 5.". 
 
 ' Harris v. London mu\ l.iinc. F. Ins. Co., 10 L,(;.J. 20S, supra, p, ml. 
 
 * Stanley v. WeHtern Ins. Co., 3 Kx. 71. 
 
■f.'.IIJJ 
 
 "1 
 
 ;:? 
 
 LIABILITY FOB LOSSES, WAIVER OF CONDITIONS, ETC. 
 
 )59 
 
 348. Clause as to forest fires — A policy of insurance con- 
 tained the following condition endorsed upon it, viz, : " The com- 
 pany will not be answerable for any loss or damage by tire 
 occasioned by earthquakes or hurricanes, or by burning of forests ; 
 and this policy shall remain suspended and of no effect in respect 
 of any loss or damage (however caused), which shall happen or 
 or arise during the existence of any of the contingencies afore- 
 said." Such a clause is legal, and in order to exempt the company 
 from liability, it is oidy necessary to prove that, at the time of the 
 loss, the neighboring forests were burning.' 
 
 349. Identity of property — The insurance being upon 
 merchandise which is to be used for traffic, and not as property to 
 be kept unchanged, the only identity of the subject of insurance 
 needed is, that it shall be a stock of the same class of goods or not 
 more hazardous, owned ])y the insured in that store. The re- 
 moval of one stock and replacing it by another of like kind does 
 not change the subject of insurance within the meaning of the 
 policy. 
 
 Where a question arose as to the identity of the buildings 
 destroyed with those insured, there being a iiuniber of buildings 
 insi'.red and only one burnt : — 
 
 It wart liehl, reversing the judgment ot the Court of Review, 
 (1 L. C. J. 116), that the reception by the secretary of the company 
 of a premium for additional insurance after the tire, was, under 
 the circumstances, an acknowledgment of the i)lainlift'a pretensions.' 
 
 It has also been held, that a company insuring against lire 
 the house, luiiitjav, extension kitchen, and the furniture and effects of 
 the insured, is liable for the loss on all goods on the premisi's 
 wherever situate. 
 
 An insurance against tire, eHected upon a certain quantity of 
 coal, covers not only the coal deposited at the time, but that 
 dei)osited since, and covers also the risk arising trom the spon- 
 taneous combustion of such coal."' 
 
 A lire policy in favor of a[)pellant on coal oil " his own, in 
 
 ' Q.H., Coin. Union Ass. Co. & Ciuuulii Iron .Mining Co., ^X 1,.C..I. 80. 
 '- Cii'iswoUl, HO!) iin(i st'c sii/trii sj 270a. 
 HiniMincvilli- V. .Vint. Ins. Co., I L.C..I. 110, ISOti, 
 
 •" iM\it. Ass. Co. of .Montn-al v. Vilk'nonve, .M.L.H. -J Q.H. ,S1», and see C.C.L.C. 
 R7U. -2 I'lir. n. .")!ll, p. ISO ; Ann. 101 ; Quen. n. "S. Soo also .siiju-d S 270. 
 » Q.H., Hiitlsh Am. Ins. Co. * Joseph, U I .CM IW, .^upm § :H5. 
 
 ! 11- 
 
p I .:i: 
 
 560 
 
 INSURANCE LAW OF CANADA. 
 
 h 
 
 trust or oTi consignment," covered his loss on oil destroyed by lire 
 in " Middlcton's sheds," warehouse receipts for which, granted 
 by " Middleton in favor of Thomas Ruston," had been transferred 
 by Ruston to appellant, and on which receipts appellant had made 
 advances to Ruston, who obtained such advances really for Middle- 
 ton, without appellant, however, being aware of the fact.' 
 
 350. Waiver of conditions. — It is a well established rule, 
 that a waiver of a forfeiture ot a policy, in the absence of any 
 agreement to that eifect, results from negotiations or transactions 
 with the insured, after knowledge of the forfeiture, by which the 
 insui'cr recognises the continued validity of the policy, or does acts 
 based thereon, or requires the insured by virtue thereof to do some 
 act or incur some expense and trouble.-' 
 
 "Wliere a policy contained a provision, that the ship insured 
 should not be within the Gulf of St. Lawrence within a prescribed 
 period, and the ship went into the Gulf within the prohibited 
 time and was wrecked, notice was given of an abandonment and 
 was accepted by the insurers, it was contended by them, that the 
 ship was not insured when she was lost, as the insurance did not 
 extend to a loss in the Gulf within the prohibited time, and that 
 an abandonment can be of no avail where there is no insurance. 
 
 It was held, however, by the Privy Council, that the vessel 
 was in fact insured, and that the loss occurre<l during the time and 
 ui>on a voyage deseribed in the policy, b)it tlu-re was breach of 
 one of the warranties, and if, after a constructive totiil loss and 
 notice of al)andoinnent. the insurers, with I'ull knowledge of all 
 
 ' Stiinlon V. .I'lliiii Ins. Co., 17 L.C.J. liSl. 
 
 A ciisc, which WHS very sIpoiikIv iDnli'steil hcfoiv I hi' Supreme Court of iho 
 United Slates, wiis Cal. Ins. Co. v. riiioii Compress Co. (ISil(l), l;!:t W.S. MS". Tlio 
 policy, issued to tlie eompi'ess company on "cotton in hales, lu'ld hy tliem in trust 
 or on commiHsion," was ell'ected under an at^reenieiit wit li the railroad companies. 
 When cotton was delivered, the compress company gave n-ceipts to the dei)ositors 
 stipulating " not responsilile for any loss by lire." These receipts were exchanged 
 by the holders with the railroad c()mpaiiies for the bills of lading, exempting the 
 carriers from liability for loss or damage by lire. The contest here was, as to who 
 were the benelliarics of the policy. Tlie insurance company contended, that there 
 was error in treating the words "their own or held by them in Irust^ oroncouHuission." 
 as if they read "on account of whom it may concern." 'I'he court held, that the 
 insnriince was really taki'ii out by Itie railroad companies, which fact was well 
 known to the agents of the insurer at the time I he iiolicy was issuecl.aml that, there- 
 fore, the railroad companies had an insurable interest in tlie cotton, which was held 
 in trust for them by the compress comiiany, 
 
 • Beach, T.'ilt. 
 
^1 
 
 LIABILITY FOR LOSSES, WAIVER OF CONDITIONS, ETC. 
 
 561 
 
 ■Id 
 
 the facts, accept the notice, they cannot, when called on to pay the 
 amount insured, resile and rely on a branch of warranty. 
 
 By the voluntary acceptance of the notice of abandonment^ 
 an agreement is entered into, which closes the whole matter.' 
 
 In another case, the plaintitf having created a mortgage in 
 favor of a loan company, whereby he covenanted to insure the 
 building on the property, failed to insure, but assented to an 
 insurance cttected by the loan company in their own name, and he 
 paid them the premium. The premises insured were described 
 as a " two story house, shingle roof buildiiig, owned and occupied 
 as a steam bending factory." The property having been destroyed 
 by tire, the insurance company paid to the loan ci)mi»aiiy the 
 amount due to them and took an assignment of their mortgage, 
 whereuiton the plaintitt instituted proceedings against the insur- 
 ance company, seeking to redeem the projierty on payment of 
 what was due on the )>iortgage, after crediting the amount of 
 insurance. It was shown that the premises, instead of l)i!ing used 
 as " a steam bending factory," had been converted into a " door and 
 sash factory," of which change no notice had been given to the 
 insurance com[)any : — 
 
 It was held, reversing the judgment of the court below, that 
 the special survey set out in the report, in which the intention to 
 use the premises as a factory was mentioned, did not form part of 
 the application of policy and could not be construed as an assent 
 by the tlefendants to such occui)ation ; that the statutory condition' 
 as to change ot occupation or use of the buildings, without notice 
 to the insurance company, had therefore been broken, thus in- 
 validating the policy ; and that the plaintiff was not entitled to 
 an}' benetit thereunder. 
 
 It was also held, that the insurance company were at liberty 
 to set up this defence, though, between them and the mortgagees, 
 the policy was, by a subrogation clause therein, made uncon- 
 ditiomil." 
 
 A company cannot, after negotiating with other companies as- 
 to their ratable [jrojiortion of loss, reject the claim pretending 
 fraud, fiilse representations, etc' 
 
 ' Privy Council, Provlnciiil Iii.s, Co. v. lAuiue, (I P. C. App. Cas. 224. 
 
 •^ IIowcH V, Doiii. Fire iind iMariiie Ins. Co., K A.U. 044. 
 
 •'Sovereign Fire Ins. Co. of Canada v. Pruneau, 14 H.L. ;W2, y.ll. l8H.i. 
 
 36 
 
iflil'T 
 
 
 662 
 
 INSURANCE LAW OP CANADA. 
 
 And where, after a fire, the insurers and the insured proceed 
 amicably to an estimate ot the loss, without requiring the obser- 
 vance of forms laid down in the conditions of the policy, and on 
 which they had a right to insist, they will be held to have waived 
 8>ieh formalities, and the report of the experts cannot be set aside 
 for want of them.' 
 
 351. Loss oocarrinK within delay given for payment of re- 
 newal premium— Payment of premium after loss. — Under the 
 Quebec law when, by the terms of the policy, a delay is given for 
 the payment of the renewal premium, the insurance continues, and, 
 if a loss occur within the delay, the insurer is liable, deducting the 
 anu)unt of the premium due. This rule applies to both fire and 
 life insurance.- 
 
 There is a difference of judicial opinion on this point in 
 Ontario.^ 
 
 When a fire occurred on 13th September, on 15th September 
 plaintiff, through a solicitor, paid tVie amount of an overdue 
 
 I niiiioiiliniiy & AkHc. Ins. Conip. of Wiitertou ii, t Q.H.R., Ti Q.15., 1881. 
 Kor li'iidiiiji Aniei'ii'iiii (k'cisioiis on waiver of ccmditioiis sou : Word v. Ldii. & 
 l,iiiK'. F. Ins. Co. (IHS!)), IKi X.V. KMi ; (iriuHby v. German Ins. Co. <18!H)), tO Mo. App. 
 JTii, proof of waiver must sliow a distinct recognition of validity of policy.- I'lucni.x 
 Ins. Uo. V. Maxon (18i)l), 42 111. App, Kit, statement of aKciit tliat vacancy would not 
 iill'ect Iial)ility of company is a waiver, if made before policy issued, but not if made 
 afterwards. -Nassauer V. Susquebanna Miit. F. Ins. Co. (188r)>, lOit I'a. .St. 507; 
 Wri^lit V. I'. Ins. Ass. of London (18!L'», .31 Pae. lie)). S", waiver, l)y action of coni- 
 fiany, of conditions rejiardinn encumbrances.— Mobile Life Ins. Co. v. Pructt (1H8;1), 
 71 Ala. 187. waiver of conditions as to payment of premium: bere t be court said, 
 tbat "a policy of life insurance in the usual form is not an assurance for a sinnle 
 year, with ,a privilege of renewal from year to year by payinj; tlie aiuiual iiremiiims, 
 l)Ut is an entire contract of insurance for life, siil).jeet to discontinuance and for- 
 feiture for non-payment of any of the stijiuKited iiremiums, etc., and non-payment 
 ad illeiii involves absolu'e forfeiture." — Farnum v. I'Ikcimx Ins. Co. (181MI), 83 Cal. 
 2111, unconditional delivery of po''cy, containin.LC formal receipt of premium, held a 
 waiver as to actual payment. -Knicl\crbocker Life Ins. (^o. v. f'endleton (188.")), 112 
 U.S. tilXi, ileiiial of lial)ility a waiver of ('ondition recpiiriny; pioofs ol' loss or death.— 
 Kverett v. Ldn, and Lane. Ins. Co. (18i)l), 112 I'a. St. 'M2, ou estoppel to claim breach 
 1)1' I'onditions l)y reason of actions of adjusters. - (ierman-.Viuer. Ins. Co. of N.Y. v. 
 Waters, :i() .S.W. Hy. (18il.-)),r)7ti, taking possession of pro))erty injured l)y lire does 
 not waive a breach of the policy, wlien it is done in iKnoraiice of the breach -Her- 
 nard v. United Life Ins. Ass'n, :t2 N. Y. Sui)pl. (Isy.")), 22:i ; ti.") .\. Y. St. Uep. (I8II,)), 121, 
 neither a solicitor nor a superintendent of agencies, workinj.; for commissiojis, can 
 waive conditiouH, and tlie terms of a'policy cannot be waived before it is issued. — 
 Rove V. Urooklyn Life Ins. Co., ;i8 .\.Y. .Sup))l. (18'.l|)), f!21, waiver of lapse of life 
 policy by replying to a letter as to paid-up value, etc. 
 
 -' C.C.L.C. 258H, 2,").8."). I'niis (Shaw's), UK ,•/ ,w/. ; Annell, ."il ; .Marshall, 7!)1», 8(K) ; 
 2 I'ardeasus n. 5iW ; I Hell, Com. 540, .")41, S a. Hut see Kills 240 i:l se<i., case of 
 Want V. Hlnnt, (Life Ins.) 12 Kast IKI. 
 
 •' See ait/mi %i 73, 78. 
 
LIABILITY FOR LOSSES, WAIVER OF CONDITIONS, ETC. 
 
 563 
 
 13 
 
 Hi' 
 
 I 
 
 insurance premium note to (letcndants, who were ignorant of the 
 loss. On 17th September, notice of loss was given to detendanta, 
 when they immediately returned the premium to the solicitor. 
 It was held, that the payment, having been made in fraud of 
 .defendants, could not avail the plaintith' 
 
 352. Reformation of contract -Mistake in amount of policy- 
 Duration of contract. — In an action to ret-ovor the amount of a 
 policy of life insurance, issued by the appellants, tor the sum of 
 $2000, payable at the death of the respondent, or at the expiration 
 of 8 years, if he should live to that time, the evideiu'c showed, that <■ 
 the premium mentioned in the policy wns the sum of Sl(33.44, to 
 be paid annually, partly in <'asli and [lartly by the res[)on(ii'iit's 
 notes. The ajipellants, l)y their [ilea, alleged, that the insurance 
 had been etlected for §1000, and that the policy had l)y mistake 
 been issued tor §"2000, that, as soon as the mistake had i)een dis- 
 covered, they had ottered a policy for $1000, and that, previous to 
 :the institution of the action, the\' had tendered to the respoiulcnt 
 the sum of !S832,97, being the amount due, which sum, with §25 
 for costs (which had not Itecn tendered), they brought into court. 
 Since October. 18t!',), when a new policy was oiK'reil, tiie proniiinns 
 were paid by the respondent and accepted by the appellants uiuler 
 an agreement that their rights would not thereby be prejudiced, 
 and that they would abide by the decision of the courts of justice 
 to l)e obtained after the insurance should have become due and 
 pa\'able. I'urol evidence was given to show how tlie mistake 
 occurred, and it was t'stablished, that the premium jiaid was in 
 accordance with the company's rates for a §1000 poiic}-. 'i'he 
 court decided, that the insurance eih'cted was for §1000 only, and 
 that the policy bad by mistake been issued for §2000.-' 
 
 ' Sears v. A^ric. Iiis. (."o., '.WiC.l'. oS."), CPU., tiiiil sre Fi-.-izt-r v. Ciort' Dist. .Mut. 
 Fire Iiis. Co., 2 O.K. tl(i, p. 'J:t.">. Nfill v. Union .Mut. Life Ins. Co., 7 A.l{. 171, p. 
 IWn. Anchor Marine Ins. Co. v. Corhott, S.C.U. 73, p. ! (St. —.See Ilarniltdn v. 
 llonic V. Ins. Co. of Oni.iliu, (il N'.W. Hi'p. (ISiM), iC), for rU'oLt of mm payment 
 of premium note; see also Croft v. Hanover Ins. (3o., 21 S.1'1. Hep. .S.")! (ISl)n) 
 sii/ird. In .ScotI v. Sun Fire Olliie (ISldl), l:t;t I'a. St. M.'tli, lliere was an endorse- 
 ment on the l)ai'lv of tlie policy to llie elfecl tliat " paymi'iil of the premium to a 
 brotver is not valid until reoeiveil hy the soeiely." The court held tliat, where the 
 premium was char>i;ed to the l)roker upon tlie l)ooks of the company's aneni and, 
 in regular luiurse of business between the broker and the aKent, was paid over to 
 the latter, the policy was bindinn upon the company. 
 
 '^Supreme ("ourl of Canada, .lOtiui Life Ins. Co. v. llnidie, T) .S.C.U. 1, Hut 
 sec Christmtis & Uorduas, I.") U. L, ihi\. .S.C. IHS."), reported sHprti ^ SS. See also : 
 Harrison v. Hartford F. Ins. Co. (1887), :«) l''ed. Hup. .stl2, where il was said, that 
 
li 
 
 664 
 
 INSURANCE LAW OF CANADA. 
 
 il 
 
 ■ 
 
 III the case of Maille v. Workmen Bakers' Union,^ defendants 
 resisted payment of a claim, wliicli was made upon thom in lonse- 
 qiKMice of the death ot the wife of one of their members and of the 
 suhsecpient death of the member himseF, on the ground that the 
 assured was suspended from all the advanta<ros and benefits con- 
 ferred by the society. Tlie action was brought on behalf of the 
 assured's minor child, and it was decided, that the regulations of 
 the society as to suspension of members for neglect or delay in 
 paying their contributions, did not apply to benefits accruing to 
 the heir, but only to those of the member himself; and further, 
 that suspension for a time does not deprive the member indefin- 
 itely, and if it were applicable to the case of death, it would only 
 have the effect of delaying the payment of the amount of the 
 assurance. 
 
 The question in dispute in an English case was. whether tlie 
 'iitire day stated in the [tolicy as date of expiration, was covered 
 by the term of insurance. The facts as laid before the court were 
 these : — 
 
 The plaintiffs insured their goods against fire with the defend- 
 ants by a policy for six months, whereby it was provided from the 
 14th February, 1868, until the 14th August, 1868. and for so long 
 after as the assured should pay the sum of $225, and the defend- 
 ants, at the time above mentioned, accept the same, the defend- 
 ants' funds should be liable to make good losses by fire to the 
 plaintiffs' goods. The plaintiffs intended to keep up this policy', 
 and the defendants knew their intention, but the renewal premium 
 was not demanded or paid on the 14th August, 1868. On that 
 day a fire took place, which destroyed the plaintiffs' goods. The 
 
 uneiinivociil proof is iioci'ssivry foi' roforiiiiitioii of policy. Tliis was a case of mis- 
 statement as to vacancy : the policy was left with the agent for safe keeping, 
 company was held not liahle,— Noel v. Pymatuning Mut. F. Ins. Co. (18.S<»), VM Pa. 
 St. 52M ; Latimore V. Dwg. IIon.se Ins. Co. Pa., (1H9U), 25 Atl. Rej). 757, mistake in 
 duration of policy.— Devereux v. Sun Fire Ortice of I,ondon (IHHIO, 51 Hun. 147, rules 
 recognised in New York on reformation of contract; " mistake must he estahlished 
 beyond a reasonahle douht."— Steel V. Pho'nix Ins. Co. of Brooklyn il8it2), 51 Fed. 
 Rep. 715, no reformation of policy recpiired to enable successor in a receivership to- 
 sue thereon. 
 
 ' Pagnuelo, .1., Superior Court of Montreal, Stli October, 1S97, not yet reported. 
 
 The rifi;ht to reinstatement after forfeiture of membership in a mutual benefit 
 society, for default of payments, was held, in Carlson v. Supreme Council American 
 Legion of Honor (Cal.), 35 L.R. A. IIW, to be terminated by the death of the member 
 without payment during the time allovvetl for reinstiiteinent, and subsequent tender 
 by the bonellciary within thai period is unavailing. 
 
m 
 
 m 
 
 LIABILITY FOR LOSSES, WAIVER OP CONDITIONS, ETC. 
 
 565 
 
 course of business between the plaiiititts and defendants was, that 
 the defendants should come to the phiintiffs and (k'maiid the 
 renewal premiums : — 
 
 It was hold that, under the terms of the policy, the whole 
 of the 14th Aui^ust was protected, and that the defendants wore, 
 therefore, liable for loss caused by a tire happening on that day.' 
 And this case was followed in a recent decision. - 
 
 353. Subrogation — It has been said, that the insurer does not, 
 at common law, acquire by the payment of a loss a right in bis own 
 name to recover damages against the party by whose negligence 
 and fraud the loss is caused.' 
 
 But it is now settled, that in all those cases, in which the 
 assured have a primary right against third parties, who have been 
 
 ' Isaacs V. Royal Fu;,. Co., .") Ex. 2iNi. 
 
 - South Stiifrordshire Traiuways Co. v. Sickness and Ace. Ins. Asso. (1S91), 1 
 Q.I5. 4(12. 
 
 In Midi. Pipe Co. v. Mich. F. and M. Ins. Co. (lSit.'», it2 Midi. 4S2, the i|Ucslion 
 wft.s, as to wlien a lire rislc attadics. Tiie aj.;cnt disivKariled his instructions to 
 report tlie insurance at once. A tire occurred ii few days later and tlie policies were 
 received by agent of assured several days afterwards. Clu'(|ue for premiums, sent to 
 agL'nt over a month later, was not accepted, in obedience to instructions. The 
 policies contained no provision, tliat they should not become operative until the 
 preniiuins ^v ere paid. In a similarcase before, the premiiiins had. in llic usual course, 
 been collected afterwards. The majority of the Supremo Court of .Michiu:an held, 
 there was a valid contract existing at the time of the loss. 
 
 Whitcman v. Am. Central Ins. Co. tlSS-O, M Lea '■ill, was also a case turning on 
 the i|uestion of attachment of risk. There were several policies issued to a linn 
 coiniKtseii of a father and two sons ; one company wished to cancel its polic)' ; a 
 policy in another company was substituted, issued to the father, loss payable to the 
 firm ; this sul)stitution was assente<l to by one of the sous, but the policy was not 
 delivered to the father until after a tire. The company contended, that its policy 
 had not been delivered at die time of the lire, and, therefore, the risk had not 
 attached on its account. TIk' court held, that the subsiituliou was cipiupleted by 
 the assent of one of the partners and, further, that the agents of the cnuip my, having 
 sent the substituted policy to the broker, constituted the latter the agent of the 
 coiii)iaiiy to deliver the policy, and they were boiiiKl by his a-'s. 
 
 In Fuchs v. (iermantown Farmers Miit. Ins. Co. (ISSl), (ill Wis, 2Si>, it appeared, 
 that a policy had been issued and, the year following, renewed, about ten days aficr 
 the commencement of the risk as stated therein. I'lie property was destroyed by 
 Are days after the expiry of the renewal. It uas lii'ld, that the policy had expired. 
 
 ' London Ass. Co. v. Saiiisbury, :t Doug. 21"). .May, l."):). 
 
 In Conn. Mut. L, Ins, Co. v. New York & Xew Haven Ii. K. Co., 2.") Conn. 2(15, 
 wliero the insurance company had paid a claim for a death, caused by the negligencu 
 of the railroad company, the court dismissed the action on two grounds : first, 
 because at common law a party is not liable c(i'(7//cc for i he destruction of human 
 life (for which see Mobile Ins. Co. v. lirame, i).5 U.S. 751, ic Sullivan v. Union Fac. K. 
 R. Co., 3 Dill. C. Ct. ;i:U), and, secon<lly, on the special gnniiid, that there is no such 
 relivtioiiship between the parties as to lay a foundation for such an action. 
 
iiiP 
 
 
 ill 
 
 I'll 
 
 ii 
 
 
 
 '?''• 
 
 666 
 
 INSURANCE LAW OF CANADA. 
 
 the authors of tlio injury, either through negligence or culpable 
 misconduet, not amounting to felony, the insurers, on making 
 good the loss, are entitled to enforce the remedy of the assured and 
 in their name to recoup themselves for their expenditure. This 
 right is recognized by the courts as the right of subrogation. The 
 contract of insurance is treated as an indemnity, and the insurer as 
 a surety, who is entitled to all the remedies and securities of the 
 assured, and to stand in his place.' 
 
 "Wiieii a person, who has sufiered loss by fire and has been 
 paid by an insurance company, sues the wrong-doer, he is entitled 
 to Judgment for the full amount of his loss ; the insurance money 
 is not to be deducted, because if it were, it would give the wrong- 
 doer the benefit of the insurance.- 
 
 A tire insurance company, by whom a loss Las been paid, has 
 no locus slandi as co-plaintitt in an action by the assured against 
 the wrong-doer whose negligence has caused the fire.* 
 
 In so far as Quebec is concerned, the right of subrogation is 
 provided for by statute, the code stipulating, that the insurer, on 
 paying the loss, is entitled to a transfer of the rights of the insured 
 against the persons by whose fault the fire or loss was caused.' 
 
 Assurers against fire have, therefore, a legal right, on paying 
 the loss covered by their policy, to be subrogated in the rights and 
 actions of the insured. 
 
 A manjailliev en charge, having power to receive from the 
 assurers the sum insured on the property of the fabriqm and to 
 grant a discharge therefor, has also the power to subrogate the 
 assurers in the rights and actions of the fahrujue against the 
 originators of the fire and loss, although he cannot legally make 
 an assignment by way of sale of any su(;h rights and actions, with- 
 out s[)Ocial authority. 
 
 Assurers subrogated, on payment of the loss, in the rights and 
 actions (if the assured for a part of the loss onl\% can maintain an 
 action against originators of the tire and loss for such part. Under 
 a plea of general issue to an action for a part of the loss only, the 
 
 i May, 454, 
 
 2 Hrowu V. iMcBae, 17 O.R. IVl ; but see infra Howes v. Dom. F. & M. Ins. Co., 8 
 A. R. (il4. 
 
 •' Wealleans v. Canada Ins. Co., 21 A. R. 2!17 ; Maclennan, 96; but see in Quebec, 
 Norlli Shore Ry. & MoWilley, infra. 
 
 «C. C. L. C. 25.S4. Ellis (Shaw's), 112, n. 1 ; Marshall, "iXi ; 2 Pard. Drt. Com., n. 
 503, p. 4'JS-500, as to subrogation plenojure. See also supra §§ 180 et seq. 
 
'if 
 
 
 LIABILITY FOR LOSSES, WAIVER OF CONDITIONS, ETC. 
 
 567 
 
 origiiiatopH of the tire and Ioah cannot require that the other parties, 
 injured by the same tire, be united in the same action, so as to save 
 them from the costs ot" more than one action for the whole loss.' 
 
 The hypothec upon a property does not pass to the indemnity 
 in the hands of an insurer against tiro.- 
 
 The pretension of the existence ot such a gage has not been 
 allowed in the American courts.' In France, the authors have 
 been somewhat divided in opinion. The Cour de Paris, 13th March, 
 1837, allowed the gage, hnt the Cour de Cassation decided against 
 the pretension on 20th December, 1859.' Following this decision 
 and approving ot it, we have an article on the subject in the Revue 
 Critique;' and the Cour de Doaai, 2nd December, 1869," followed 
 the Cour de Cassation. 
 
 A railway company is responsible for damages caused by one 
 of its locomotives setting tire to a building, and a single action can 
 be taken by the owner of the buildings and by the insurance com- 
 pany which has been subrogated for part of the damage it has 
 paid." In Quebec, where no transfer of the insured's rights is 
 made to the insurer at the time the loss is paid, the latter cannot 
 invoke against the origiuiitor of the loss Art. 2584 C. C. But he 
 has the action for damages under Art. 1053 0. C* 
 
 In case of partial insurance, where a third party is liable to 
 make good the loss, the insured is not clothed with the full cdiar- 
 acter of trustee quoad the insurance companies, until he has 
 recovered sufficient from the wrong-doers to fully satisfy all his 
 
 ' I'rivy Council, Quebec Fii'O Iiis. Co. & Molson, 1 L.C.R. 2tl [nui repjrLud in 
 Moore's I'. C. Itep.) 
 
 •^ Beliui;rer v. McCarthy, IS I,.C..J. i:W. 
 
 ■■' I'liillips on Iiisuraiicu, Vol. 1, X. 405 ; Vol. :2. \. VM2. 
 
 ■• Sirey (IHOO), 1, H, and J. (hi I'alais {im)), 140. 
 
 ■"' I'ari.s, 17, p. 1.50. 
 
 « .'^ii'ey (ISTO) p. 2\)r,, -Ind pari. 
 
 Ill I lif volume of Sircy, 1S7(), the editor says in a foot note, "c'est l.t un puint 
 au.jnnd'hui ^eneralemeut udmls," and Troplon^;, Ilypotheiiues, Tom. t, n.Sid), speaic- 
 in;; of the i)aral lei case of a hypothec on a house, says :— " .le ne conijOis pas com- 
 ment on peut trouver dans ce cas une ditli:'ulle. li'liypolheijue est eteinte par la 
 perte de la maison : *v rorporalv e.rlincNt, hi/iiuthccu iierit. Comment done pour- 
 rait-elle atteindre la soinme, (pxi n'est allouee ipie ex post fncfi) I'l titre d'indemnite 
 pour le proprietaire i D'ailleurs, cette sonniie d'ar^ent est puremont mobiliere ; elle 
 n'est et ne pout etre subrogee a 1 1 maison, d'apres tous les principes sur la subro- 
 gation. 
 
 " Q.B. North Shore Ky. & McWilley, 17 ILL. :it)7. M.L.U. .5 Q B. 122. 114 L.C.J. 
 56. Supreme Court of Canada, 17 S. C. R. iill. 
 
 8 Cedar Shingle Co, & Riniouski Ass. Co., R..I.Q., 2 Q.B. 37!). 
 
 f;! 
 
 ) 
 
 1 ^ 
 
 1. 
 
 1 
 
 ' i ' 
 
 
 
 
 i 
 
 1 
 
 i.j. .:..M 
 
-1 !■ 
 
 568 
 
 INSURANCE LAW OF CANADA. 
 
 mi}'} 
 
 loss as well as expenses incurred in such recovery. In other words, 
 when the assured is put in as good a position by the recovery from 
 the wrong-doer, as if the damage insured against had not Imp- 
 pened, tlien, for any surplus of money or other advantage recovered 
 over and above that, the iiisurer is entitled to be subrogated into 
 the right to receive that money or advantage to the extent of the 
 amount paid under the insurance policies.' 
 
 To give rise to an action en garanfie simple, not only must 
 there be connexity between it and the principal demand, but the 
 two actions must be identical in their nature and based upon 
 similar legal principles. So, where an insurance company is sued 
 upon a policy of tire insurance for the amount of a loss, an action 
 en garantie by the insurance company will not lie against the rail- 
 way (iompauy, through whose alleged fault and negligence the fire 
 occurred, the liability on which the action is based in the two cases 
 bei; V? entirely dissimilar in nature and principle. - 
 
 The question of subrogation is a very important one to insur- 
 ance companies and has been frequently ventilated in the English 
 courts in its various aspects. Thus, in an action between landlord 
 and tenant, it was laid down, that a pf)licy of fire insurance is a 
 contract ol indemnity, and, upon payment ot the amount of loss, 
 the insurer is entitled to be put into the place of the assured ; and 
 if, at a subsequent time, the assured receives compensation from 
 other sources for the loss sustained by him, the insurer is entitled 
 to recover from the assured any sum which he may have received 
 in excess of the loss actually sustained by him. — North Brit. <& 
 Merc. Ins. Co. v. London & Liverpool (£• Glohe Tns. Co. (5 Ch. D. 569) 
 commented upon and followed. ' 
 
 And where the owner of a building insured it against fire. l)ut 
 not to the full value, and the building was burned by what was 
 said to be the negligence of the servants of a municipal corporation, 
 
 action for damau'cs against the 
 
 ight 
 
 th 
 
 igamst the corporation, 
 rder of the Mar^ter ol the 
 
 ami I he court held, afhrming the on 
 
 Rolls, that the owner, undertaking to sue for the whole amount 
 
 iSee llovve.s V. Doiirii Fire & Mar. Ins. Co., 8 A.R. (H4 ; Cliirke v. Union Fire 
 Ins. Co. ; claim of Agricultural Ins. Co. of Watertown, (i O.H. (ilO. Sue Xational Fire 
 Ins. Co. V. Mdiarcn, 12 O.K. US'J. 
 
 -Q.n. Central Vermont Ry. Co. & Mutual Fire Ass. Co. of .Montmaj^ny, 11..T.Q. 
 2 Q.B. 150, but see North Shore Ry. & .McWilley, M.L.R. 5 Q.B. Xtl, supra. 
 
 ■' Darrell v. Tibbitts, 5 Q.B.D. 580. 
 
LIAIIIIJTY FOR LOSSES, WAIVER OF CONDITIONS, ETC. 
 
 560 
 
 of damage, woiiUl bo allowed to coiidiict the action without tiie 
 inti'rtcreiu-o of the insurers, hut would hf Huhject to liahility wito 
 anythii\g done hy him in violation of any equitable duty towards 
 the insurers.' 
 
 In another action it appeared, that l)y Hoating polieics of 
 insuraiHie, efteeted by li, & Co., whartins^ers, tlu-y insured against 
 loss or damage by fire, in the sums named, grain and seed, the 
 assured's own or on eommission, for which they were responsible, 
 subject to conditions of average and to the condition that " if at 
 the time of any loss or damage by firi' happening to any property 
 hereby insured, there be any other subsisting insurance or insur- 
 ances, whether effected by the insured or by any other [lersun, 
 covering the same property, the company shall not be liable to pay 
 or contribute more than its ratable ]iroportion of such loss or 
 damage.'' While these policies were subsisting, a fire destroyeil a 
 quantity of grain stored with B. & Co., part of which belonged to 
 R. iScCo., who had also effected policies, called '' merchants' j)olicies," 
 on the grain thus destroyed, including also grain stored elsi-where, 
 which policies contained the like condition as the wharfingers' 
 policies. B. & Co. were paid in full by the several insurance com- 
 panies. In a suit to determine the liability of tlie companies iitfi'r 
 se, it was he'd, alKrming the decision of the Master of the Rolls, 
 that the granters of the merchants' policies were not liable to con- 
 tribute to the loss; that B. &. Co. were primarily liable, liut. being 
 indcnuiitied by the granters of the wharfingers" jtolicies, the latter 
 were ultimately liable; and it was also held, that the condition as 
 to double insurance oidy applied tt) cases where the same [troperty 
 was till' subject matter of insurance! and where the interests were 
 
 tl 
 
 le same." 
 
 In another ?]nglisli case it was stated, that, ai-oording to the 
 doctrim' of sulirogatioii as between the insurer and theas>ure(l. the 
 insurer is entitled to the advantage of every right of the assured, 
 whether such right consists in contract, fulfilled or unfidtilled. or in 
 remedy for tort capable of being insisted on or already insisted on, 
 or in any other right, whether by way of condition or otherwise 
 legal or ec^uitable, which can be or has been exercised or has 
 accrued, and whether such riffht could or could not be enforced bv 
 
 ' Coimiierciiil t'nioii Ans. Co. v. Lister, 9 Chy. 48:t. 
 
 - North Britisli & Merc. Ins Co. v. L'pool & Loiulon & Globe Ins. Co., .5 Ch. 
 
 5<!9. 
 
570 
 
 INSURANCE LAW OF CANADA. 
 
 I 
 
 
 ■t 
 
 
 f 
 
 .•!i 
 
 t 
 
 f 
 
 i- 
 
 ^1^ 
 
 ' \l 
 
 i 
 
 1 
 
 n 
 
 
 ■■■ • ; 
 
 11 
 
 RIP 
 
 
 > 
 
 the insurer in the name of the assured, by the exercise or acquiring" 
 of which right or condition the loss, against which the assured is 
 insured, can be or lias been diminished. The case in question was 
 as follows : — A vendor contracted with a purchaser for the sale, at 
 a specified sum, of a house, which had been insured by the vendor 
 with an insurance company against fire. The contract contained 
 no reference to the insurance. After the date of the contract, but 
 before the date of completion, the house was damaged b^ fire and 
 the vendor received the insurance money from the company. The 
 purchase was afterwards completed and the purchase money agreed 
 ui)on, without ;.ny abatement on account of the damage by fire, 
 was paid to the vendor : — 
 
 In an action by the company against the vendor, the court 
 declared, that the company were entitled to recover a sum equal to 
 the insurance money from the vendor for their own benefit.' 
 
 A similar case - was based upon the following facts : — A vendor 
 contracted with a purchasLi for the sale of a house, which had been 
 insured by the vendor against fire. The contract contained no 
 reference to the insurance. After the date of the contract but 
 before the time fixed for completion, the house was danniged by 
 fire and the veidor received a sum of money from the insurance 
 com[ian3'. It was bold by Brett & Cotton, L.J J. (affirming tlie 
 decision of Jessel, M. R.), James, L.J., dissentiente, that the i>ur- 
 chaser, who had completed his contract, was not entitled as against 
 the vendor to the benefit ot the insurance. — Per Brett &^ Cotton, 
 L.JJ., whether the olHce could not I'onipol the vendor to refund 
 the money, (jiuvre. But this qtuerc was settled in the preceding' 
 case. 
 
 ' CiisU'llaiii V. I'roston, MQ li.I), t;i:t, 11 Q.lJ.D. ;M). 
 
 2 ItiiyiuT V. PniHloii, IM Cli. 1), 1. 
 
 The iiriiicipk'sof stihroniitioii.iisnivfii in the iihovc i)iirii)2;i'iv|)hs, wi'iv illustniti'd in 
 II nuiiilit-'r iif Aincrii'iiii I'lisi-s ; c.;/., I'rov . Wasli. Ins. Co. v. 'I'lic Syilni-y (IMS")), :i;l P'od. 
 lU'p. .'^S. IIS to iisNiiriT l)i'inK oiiuitnlily oiilillcd ti) siiliro;.;iilion. — I'litonix Ins. t"o. v. 
 Erii' Ti'imsp. ('o. (ISS(l), 117 l. S. ;ir_', ii leading ca.sc on tlio ri^lil of suln'OKHtion, 
 wlicre it was Miid that " in any form of roincdy, tlu' insnriT cim lake nothing liy 
 siibronalion hut tlii' riglils ot the assured." — I'ialt v. Hiiliuioml Yorl; l{i\or & 
 Cliesapt'akc U. U. Co. (IHSS), lOS N. Y. :C)8, " if the assured has no rinlit whieli lie 
 ean transfer, tliere ean lie no subrogation." - London (iuai*. & Aee. Co. v. (Jeddo.s 
 (1H8.">), 2:! I'ed. Uep. (HID, miarantee company being' stilironaled to tlie rights of the 
 employer ; ornbe/zlemenl by ticket agent of a Canadian railway company ; <iipin.i ml 
 rcsjiDiiilfnihtin in Illinois. Plm-nix Ass. ("o. v. Allison <•! ((^,;U)S. W. IJep, (iMIt.")), 
 ot", as to subrogation of debtor to rights of his sureties upon payment of debt. — 
 Southern Hell relephoiie and Telegraph Co. v. Watts, IK! I''ed. Hep. (ISll.")) ItMl, an 
 iiiHuraiice uompauy is not a party-plalntlir. - See iil.io Houston Direct Navigation Co. 
 
]!^^J 
 
 LIABIUTY FOR I-OSSES, WAIVER OF CONDITIONS, ETC. 
 
 571 
 
 SSI. Slip of policy-Effect of.-The plaintiffs, a lirm of mor- 
 chaiits in New Zealand, in October, 1886, employed a firm of 
 insurance brokers in London to effect for them insn ranees against 
 fire upon goods in New Zealand. The brokers instructed B , an 
 insurance broker at Llo\'d's, to effect a portion of the insurances, 
 atul B. prepared a slip, containing particulars of the risk, which 
 was initialled by the defendant and other underwriters at Lloyd's. 
 Owing to misunderstanding between rhe insurance brokers, no 
 policy was put forward for signature by the defendant and other 
 underwriters, and in February, 1887, the goods in Xew Zealand 
 were seriously damaged by fire. No premiums had then been 
 paid, but two days after the fire the insurance premiums were 
 paid by the plaintitt's to the insurance brokers. A ]iolicy was 
 then tendered to defendant for signature, but ho refused to sign 
 or pay tlie amount for which he had initialled the slip. Tn an 
 action to recover the amount, the court decided, that the slip 
 formed a complete and binding contract of insurance, that it was 
 not subject to an implied condition, that a policy should bo put 
 forward for signature within a reasonable time, and that, in the 
 absence of circumstances showing an intent on the part of the 
 plaintiffs to abandon the insurance, they were entitled to re- 
 cover.' 
 
 355. Insnranoe against Are of a steamship in dock does 
 not cover it while moored in the river. — A time policy against 
 fire was eficctcd on a steamship. The policy described it as then 
 " lying in the Yictorin Docks," but gave it " lil)erty to go into 
 dock and light the boiler iires once or twice during the cunviicy 
 of this iiolicv." The onlv dry dock into which the ship could <i'o 
 was Lungley's dock, at some distance up the river. To go thci' 
 it was necessary to remove the paddle wheels ; they were rcniovro 
 n Victoria Dock and tiic ship then towed up to fjungley's dock. 
 The ncces^.ii'y rei)airs tiiere having been conipleled, the ship was 
 brought out and moored in tiie river. ]ireparatory to I'cplaciiig the 
 paddle wlu'cls. Tiiis operation could liave been pert'eclly per- 
 formed iti tiie Victoria Dock, l)Ul it was t'ouud. that in such case it 
 was cii'^toinary, as the more economical course, to rciilace the 
 
 V. IllN, Oi). of N. All).. :tl S. W. Hep (1S1).">) .-.(«( ; Over -7 <•/. v. Lake Kiic & \V. K. U. 
 Co. li iiL, (i:i I''('(l. lU'p. (1S!)|), :U ; .Stou^'liloii v. .Mumit'. NiUiiiMl (ins Co., M \\\. Hep. 
 (181)5), 1(101 ; .■MiilthiMVM v. .Si. Louis & S. K. K. Co., 21 .S. \\ . l{,.p., r,\)[. 
 ' Tlioinpsou V. Adiiiiis, •£\ (j.H.l). M\, ami sci' Kiiiini chap. V , 
 
IM. 
 
 672 
 
 INSURANCE LAW OF CANADA. 
 
 iiiiil 
 
 8 il.lU V 
 
 
 ! pi 
 
 m 
 
 •'f: 
 
 paddle wheels while the ship lay in the river. Before the wheels 
 had l»een replaced the ship was burned : — 
 
 It was held, that the policy covered the ship while in the 
 Victoria Docks, and while passing from them to the dry dock, and 
 while directly returning from the dry docks to the Victoria Docks ; 
 but it did not cover the vessel while moored in the river tor a 
 collateral purpose. 
 
 Per Lord Chelmsford : An insurance against fire necessarily 
 has regard to tlie locality of the subject insured. 
 
 Per Lord O'Hagan : To construe the policy as allowing the 
 vessel to remain in the river wliile the paddle wheels were replaced, 
 would be to add a new condition to the policy, which could not be 
 done.' 
 
 356. Place of payment— Lex looi contractus -Pasrment 
 into court.— Where no place of payment of a policy of insurance is 
 mentioned in the policy, it must be assumed that the plaice of 
 payment is where the head office of the insurance company is 
 situated, and this fact may determine the question of the lex loci 
 contract us.- 
 
 Paynient into court by the insurance company may be made 
 in certain cases. ' 
 
 357. Divisible surplus— Discretion of actuary and directors.— 
 
 The plaintiff insured with the defendants u[»ou their '• endowment 
 participating plan '' and, by the contract of insurance, the defend- 
 ants agreed to pay him at the end of a specified period, if he 
 survived, a certain sum together with his share of the profits made 
 in that branch of the business during the period. The plaiiitift, 
 being dissatisfied with the share allotted to him, clai)ned an ai'count 
 and payment of his share of all the [irofits. The (U'fendants 
 claimed the right to hold a portion of their a})parent surplus to 
 ensure the future stability of the company : — 
 
 The court was of oi»inion, that the plaintifi was bound to 
 acquiesce in the discretion of the actuary and directors of the 
 company, t)Qiia Jide exercised, and to take his share of wliat was 
 
 I Feiii'Hoii V. Com. I'liioii Ash. Co,, H C. I'. ."ilS. I Ajip. ('as. liW. Si'o iil>o siifira 
 §27a 
 
 " ("liirkc V. I'liion Kiro Ins. Co., 10 \'.U. MA, citi'd nuiu-ii tj 02 ; sec S.C. (i O.K. 223 
 and sc'i! uniirii S (lit. 
 
 I MiTclmiils Miiiik V. Monti'Uh m parti- Standiinl Life Ins. C^o.. 10 I'.K. ThS.^. 
 Peoria SiiKnr Kefn. To. v. Can. FIri' and Maiinc Inn. Co., 12 A.H. US, 
 
I! 
 
 LIABILITY FOR LOSSES, WAIVER OF CONDITIONS, ETC. 
 
 i73 
 
 apportioned as divisible surplus ; and that being so, that his case 
 was not advaM(!ed by statements made by officers of the company 
 ill letters or pamphlets as to the course pursued by them in 
 dividing the surplus.' 
 
 Chancellor Boyd said, that the representation made that parti- 
 cipating policies "would receive the erpiitable share of the divisible 
 surplus," points to the exercise of the discretion of the managers 
 of the company, and the expression " divisible surplus," is one 
 that refers to something less than the entire profits claimed by the 
 plaintiff. fiefore divisible [trofits can be ascertained, it would 
 seem to be essential for the security of policy-holders to keep such 
 resources in hand as would cover the whole liabilities of the com- 
 pany, having regard to the uncertain chances of mortality, rate 
 of interest, expenses, etc. 
 
 Meredith, J., was of opinion, that there was no express coven- 
 ant in the policy. to pay the plaintiff any i)rofits. "Divisible 
 proHts'" are the profits which tlie company, after making, in good 
 faith, all reasonable and proper [irovision for its safety and pros- 
 perity, divide among policy-liolders - 
 
 358. Title to life insnrance policy.— An army agent, to whom 
 an ofHecr was largely indebted on the balance of his account, 
 efiecteil in his own name policies on the life of the officer, and, in 
 the books ke[it by the army agent, the account of the officer was 
 charged with the premiums paid and with interest on the balances 
 including the i)iviniums. The olHcer was aware tliat the }iolicies 
 had been effected, Imt there was no evidence tiiat the account had 
 ever been shown to him, or that he knew that he was in the 
 account charged with the premium : — 
 
 It was held, reversing the decree of James, V.C, that the 
 army agent was, under the circumstances, 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 representatives.' 
 
 On the sale of an annuity for the life of the grantor, it was 
 provided, that the grantor would ajtpear at an insurance office for 
 the purpose of having his life insured, and would, if he went beyond 
 
 ' Bain V. .Ktiia Iiih. Co., 20 O.K., uiul noe Confeilerat ion I^ifu .\ss. v. City of 
 TorDiilo, 2IO.K. <U:». 
 -' Idrm, n O. I{. liHII. 
 ' Hi-uci' v. (iiinien, H Eq. 4;J0; 5 Ch. ;)2. 
 See also SK/int clmi). VI. 
 
 ■\ I 
 
 i' \ 
 
i^T 
 
 1- 
 
 i'}V 
 
 674 
 
 INSURANCE LAW OF CANADA. 
 
 the seas, pay any extra premiums which might he occat-ioned 
 thereby ; and it was further provided, that the grantor might at 
 any time repurchase the annuity for the sum which was originally 
 paid for it. The purchaser of the annuity insured the life of the 
 grantor and paid the premiums on the policy of insurance. The 
 grantor repurchased the annuity : — 
 
 It was decided, that the grantor of the annuity was not 
 entitled to have the policy of insurance assigned to him.' 
 
 It was held in England, that the grant of an annuity, with a 
 right of repurchase on payment of the consideration money and 
 all arrears of the annuity, did not create the relation of debtor 
 and creditor so as to give the grantor, upon repurchase of the 
 annuity, the right to a policy effected by the grantee on the life of 
 the grantor as a security of indemnity ; or, after the death of the 
 grantor, to entitle his representatives to the surplus proceeds of 
 the policj' after satisfaction of the consideration money and all 
 arrears of the animity. In 1822, in consideration of £600, A. and 
 B., his wife, granted to C. annuity of £64. 7s. 6(1. for ninety-nine 
 years, if B. should so long live. By the same deed the rents of 
 copyhold property, to which B. was entitled, were granted during 
 her life to C. with a covenant to surrender from and after B.'s 
 death to the use of C. and power to 0. to sell in case the annuity 
 should be in arrcar. The deed contained provisions, tbat an}' 
 extra premiums to become payable at the office where B.'s life 
 Khould be insured, should be paid by A. and a power to A. to 
 repurchase the annuity at any time after three years, on payment 
 to C. of £600 and all arrears of the annuity. On the day before- 
 the date of the deed, by which the annuity was granted, ^.. insured 
 B.'s life for ,£600 at an annual premium of £16. 7s. 6d. The copy 
 liolds wore surrendered, and C. l)y himself or his representatives 
 since his death, had been in possession since 1828. A. died in 
 1858 and B. in 1869: — It was held, as between the representatives 
 of C. and B., that the surplus proceeds of the policy ettected by 
 ('. on B.'s life, after satisfaction of the £600 and all arrears of the 
 annuity, belonged to the representatives of C. and not of B. 
 Gottlieb V. Cranch (4 D.M. & G. 440) and i\nox v. Turner, (Law 
 Rep. 5 Ch. 515) followed.— T^ea v. Ilinton (5 D.M. & G. 546) 
 jCourtenay & Wright (2 Giff. 387) wore discussed in this case.- 
 
 I Uucrei' of ytuart, V.C., iilllniii'd. Kiiox v, Turner, E(|. 155 ; 5 Cli. 51.-). 
 ■' Preston v. Neelo, 12 Ch. 1) 7(10. 
 
TT 
 
 1 
 
 LIABILITY FOR LOSSES, WAIVER OF CONDITIONS, ETC. 
 
 675 
 
 li 
 
 unity 
 any 
 ifc 
 A. to 
 nieiit 
 tore- 
 iroil 
 •opy 
 tivc'rt 
 in 
 lives 
 I by 
 t' tlu( 
 f B. 
 Law 
 540) 
 
 A father effected a policy in the name and on the life of hia 
 son, in which he had no insurable interest, under ciroumstancos 
 which satisfied the court that he intended it for his own benefit. 
 The son died intestate and the father took out administration to 
 his estate and the insurance company paid the money assured by 
 the policy to him : — 
 
 Held, affirming the decision of Baion, V.C., that although, 
 as between the insurer and the company, the policy was illegal 
 and void under the 14 Geo. III. c. 48., yet, as between the father 
 and the estate of the son, the father was entitled to retain the 
 money for his own benefit.' 
 
 The plaintiff's wife being entitled under a will to £200 on 
 attaining her majority, the trustees of the will agreed to advance 
 the £200 to the plaintiff on his obtaining a surety for the repay- 
 ment in the event of the wife dying under 21. A person became 
 surety on condition that insurance was effected on the life of the 
 wife. The £200 was advanced, and an insurance effected by the 
 plaintiff in the name of the wife on hor own life : 
 
 The court declared that, as the plaintiff" was primarily inter- 
 ested in the policy, it was illegal and void by force of 14 Geo. II., 
 48, s. 2, which renders it unlawful to make a policy without insert- 
 ing the names of the persons interested therein - 
 
 358a. Application for life insurance accepted by company- 
 Material alteration of risk before tender of premium.— A pro- 
 posal was niiide to an insurance company for an insurance on the 
 life of the proposer who made, on a form issued by the company, 
 statements as to his state of healih and other matters and a decla- 
 ration, that the statements were true and were to be taken as the 
 l)asis of the contract. Tin; proposal was accepted at a specified 
 premium, but upon tlu' terms that no insurance should take effect 
 until the premium was paid. Before tender of the premium there 
 was a material alti'nition in the state of the health of the proposer, 
 and the company refused to accept the premium or to issui' a 
 policy :— 
 
 1 Worthlnntoii v. Curtis, 1 Cli. 1). H!l. 
 
 See also xiii>rn chap. VI. 
 
 J Kvmis V. HinnoUl, IQ.n. (122. 
 
 In Ailams v. Heed (Ivy.), ;)"> fi. H. A. Hl)2, It was decided, that an Insurable IntcrcNt 
 In the life of a son-lii-law cxistH in favnur of a woman who with him, as one family, 
 keeps a boarding ho\i8e, diviiiing the protlts between them. 
 
 1 ■■' 
 
 ir \-- 
 
 Ml i 
 
 • t 
 
w. 
 
 
 676 
 
 INSURANCE LAW OF CANADA. 
 
 The court was of opinion, that the nature of the risk having 
 been altered at the time of the tender of the premium, there was 
 no contract binding the company to issue a policy. 
 
 Quaere : Whether, it there had been no alteration in the risk, 
 the company could have been legally entitled to refuse to accept 
 the premium and to issue a policy.' 
 
 35l>b. Life insurance policy lost— Decree of court-— It was 
 
 held in England, that an insurance company, paying under a decree 
 of the court the money pa^-able under a lost policy, is sufficiently 
 indemnitied by the decree and is not entitled to any indemnity 
 from the pi rs(jus to whom the money is paid." 
 
 !15B ^ frender value of life policy not changeable.— 
 
 The &u; --r alue of a policy ot insurance is everywhere the 
 same and is not subject to an arbitrary decision of the company 
 fixing 'r .^f a less sum in a foreign country than that provided by 
 the condition ftht : licy.^ 
 
 358d. Presumptic-n of death from absence for seven years.— 
 
 A policy on the life of R. Nutt was granted in 1863. An action 
 was brought upon it in 1874, and the question was, whether Nutt 
 was then alive or dead. He had been absent from his former 
 home for more than seven years, having left it in 1867. His 
 sister and brothei'-in-law, who lived where he had formerly lived, 
 gave evidence of his absence and said, that they had not heard of 
 him for more than seven years. On cross-examination they said, 
 that a niece of his had said that, when she was in Melbourne in 
 December, 1872, or January, 1873, she saw a man whom she believed 
 to be her uncle, Niitt, but he was lost in the passing crowd, before 
 she was able to get to speak to him. Xo efiort appeared to have 
 been made to find him at Mell)ourne, and the other relatives 
 believed the niece to have been mistaken. The jurymen expressed 
 
 ' CaniiiiiK v. Fiirciulmr, Iti Q.n.D. 722. 
 
 2 England v. Lord Tredegar, 1 E(i. Ml. 
 
 ■< Vennor v. Life Association of Sc-otland, 30 L.C.,1. 30!), Q.D, 188(1 
 
 As to construction of non-forfeiture ciaiise l)y United Slates Supreme Court, see 
 Knapp V. Ilonioeopathie Mut. Life Ins. Co. (188<t), 117 I'.S. 411, where the policy was 
 declared forfeited for want of niakiuK election witiiin a certain time.— See also 
 Alabama Gold Life Ins. Co. v. Tiionias (188!)), 74 Ala. 578, for policy Ijeliig forfeited 
 on account of nonpayment of note and interest thereon.— Fowler v. Metrop. Life 
 Ins. Co. (188(l», 41 Hun. H57, and South. Mut. Life Ins. Co. v. Montague (1887), 84 Ky. 
 flSt, wliere it was said, that statements in pamphlets as to payment of premium 
 were binding upon the company, and the latter could not claim forfeiture of policy. 
 
Mils 
 
 m 
 
 LIABILITY FOR LOSSES, WAIVER OF CONDITIONS, ETC. 
 
 577 
 
 see 
 
 WHS 
 
 also 
 eitod 
 Life 
 Ky. 
 ilum 
 liey. 
 
 a similiar opinion. The judge directed the Jurymen, that they 
 " could not say that the man had not been heard of during the 
 last seven years, when one of his relatives declared, that she had 
 seen him alive and well within the last three years ; and still less 
 could they say that he had never been heard of, when all the 
 members of the family stated, that they had heard what she had 
 stated," and "that the ground for the presumption of death from 
 a man having been absent for seven years was entirely removed by 
 the direct evidence, that every relative had heard that he was 
 alive." And, lastly. His Lordship said to the jury : " Under these 
 circumstances, unless you are prepared to find that he was dead in 
 April, 1875, and find it upon evidence which tends to prove 
 exactly the contrary, and in the absence of that evidence upon 
 which alone the presumption should be raised of his death, your 
 verdict ought to be for the defendants." 
 
 The Court of Appeal had considered this to be a misdirection 
 and had ordered a venire de novo. 
 
 On appeal to the House of Lords, the Lords were e(iUiilly 
 divided, and so the decision of the Appeal Court stood affirmed : — 
 
 Per Lord Blackburn : When there is a case tried before a 
 judge sitting with a jury, and i here arises any question of law 
 mixed up with the facts, the duty of the judge is to givo a direct- 
 ion upon the law to the jury so far as to make them understand 
 the law as bearing upon the facts. Farther than that it is not 
 necessary for him to go.' 
 
 359. De facto directors— Persons falsely assuming to carry 
 on company. A person who effects a policy with a lite assurance 
 company in the ordinary course of business, is not bound to enquire 
 whether the persons signing the policy as directors have l)oen 
 legally appointed directors, or are empowered to use the seal of 
 the company. It is sufficient if the policy appears, on the face of 
 it, to be consistent with the articles of association of the company 
 and the Acts of Parliament under which it is incorporated. 
 
 A life insurance company was registereil in 186:5, and. hy the 
 
 ' Prudential Ass. Co. v. Kilmonds, l' App. C'lis. IS7. 
 
 As to prpsum))ti()n of deiilli upon (lisapiu'iiriiiu'i' of the iissni'cd, (•('(//■ for Qiicljcc 
 law, C.C.I/.C. (t;t it si</., and see Nortliw. .M\it. L. Ins. Co. v. Sti'vcns if itl. ; HiinkerH 
 L. Ass'n of Minn. v. same, liolns. L. .1., 202 (18!Ki».— Martin v. t:nion Mn(. L. Ins. Co., 
 ■U Pac. Rep. (I81H!», Sa.-Straub v. Cirand Lodge A.O.L'.W. of N.Y., :t7 N.V, Suppl. 
 (IHlKi), ~M. In re Mut. Benefit Co., Appeal of Sclionenian, 'M Atl. Hep. (imU, Jsij. 
 
 37 
 
 ! , ■ I 
 
p IF ''I., If " 
 
 "H 
 
 I' 
 
 
 1 
 
 578 
 
 INSURANCE LAW OF CANADA. 
 
 articles of association, one P. was appointed managing director, but 
 the directors, \v}io were named in the articles and signed the 
 memorandum of association, refused to act and passed a resolution, 
 that the company should not carry on business or allot shares. 
 Notwithstanding this resolution, P. and one of the shareholders 
 persisted in carrying on the business at the registered office of the 
 company and allotted shares and appointed directors. A stranger 
 efiected a policy at the company's office, which was signed by 
 three of the de facto directors and sealed with what purported to 
 be the company's seal : — 
 
 It was held, affirming the decision of the Master ot the Rolls, 
 that the policy was binding on the company.' 
 
 360. Remittance by agrents in excess of balance due— Re- 
 newal of lapsed policies, although there was no specific ap- 
 propriation.- Where the plaintiffs, being agents for an insurance 
 office, remitted to it £100 for premiums, and it appeared that the 
 £1C0 was, to the knowledge of the office, in excess of what they 
 owed as agents, and that the terms on which lapsed policies should 
 be renewed by the office for their benefit had been ascertained by 
 consent : — 
 
 The court held, that, although there was not in the office any 
 specific appropriation of any part of the £100 to the pa3'ment of 
 the premiums on the lapsed policies, yet that it must be taken to 
 have been received on account thereof, and that, from the date of 
 receipt, there was a good contract for the renewal of the old insur- 
 ances.- 
 
 361. Payment ex gratia of loss by explosion— Liability of 
 directors. Loss from breakage by distant explosion, being a loss 
 by concussion, is not covered by ordinary policies.' 
 
 The case of Taantonv. The Boi/al I)is. Co.,' which arose out of 
 the explosion of the ship " Lotty Sleigh," raised a question of import- 
 ance as to the discretion of directors of an insurance company to 
 make good losses not covered by the policies of insurance. 
 
 On the 15th of January, 1864, the "Lotty Sleigh," then lying 
 at anchor in the Mersey, with a large quantity of gunpowder on 
 board, caught fire and blew up. The concussion of the air pro- 
 
 ' In re County Life Ass. Co., 5 Ch. 28H, and see supra. 
 
 - Kirkpalrick v. South Austriilian Ins. Co., 11 Aj)]). Cas. 177. 
 
 ' Ernrit v. London Ins. Co., Jurist (IHfiO), .'Ul ; ih. (1,S(!5), part 1, .")I6. 
 
 * Before the Vice-Chttncellor's Court, Feb. ai, IHtM ; referred to supra § 4i»a. 
 
-'l] i 
 
 Ml 
 
 i-iHk 
 
 i (■■■' 
 
 LIABILITY FOR LOSSES, WAIVER OF CONDITIONS, ETC. 
 
 579 
 
 M" Oil 
 
 pro- 
 
 duced by the explosion of the gunpowder caused great (himage to 
 property tor several miles around, and in particular shattered the 
 windows of several houses and manufactories in Liverpool and 
 Birkenhead. Many of the persons whoso property was thus 
 injured were insured in the Royal Insurance Company. The 
 directors, acting upon what they termed a liberal construction in 
 favour of the insured, had come to the determination to pay all 
 losses consequent on the explosion which had l)een sustained by 
 parties insured with the company, and had already paid claims for 
 small sums to the amount of 9601. The plaintiff, who was a 
 shareholder in the company, protested against any application of 
 the funds to make good these losses, on the ground that they were 
 not within the terms of the policies, which contained a distinct 
 provision that the company would not "bu responsible for any loss 
 or damage by explosion, except for such loss or damage as shall 
 arise from explosion of gas." He, accordingly, filed a bill to obtain 
 a declaration, that the application of the funds in making good any 
 loss occasioned by the explosion to persons insured against loss or 
 damage by fire was unauthorized and improper. The bill also 
 prayed an injunction to restrain any such [tayments, and that the 
 directors might be declared jiersonally liable to make good any 
 payments already made by them. 
 
 The directors submitted that, although the losses in questioti 
 were not strictly within the terms of the policies, they had exer- 
 cised a wise discretion in at once offering to satisfy the claims as a 
 matter of favour, without admitting any liability, believing as they 
 did that such a course was much more conducive to the real 
 interests of the company than a narrow-minded adherence to the 
 strict letter of the provisions contained in the policies. They had 
 obtained the concurrence of a majority of the shareholders to the 
 course taken by them, ami the principal insurance offices, such as 
 the Sun, the Phrenix. the Royal Exchange, and the Alliance, had 
 taken the same view, and voluntarily paid the losses occ-asioned by 
 the explosion. The Vice-Chancellor said, that the question was 
 one of considerable importance as to the management of com- 
 panies of this description. The court was extremely careful to 
 pi-event the application of money intrusted to directors by the 
 shareholders for any other than the legitimate purposes of the 
 business. At the same time, it would not l)e for the benefit of 
 shareholders that those purposes shouM be impeded or narrowed. 
 
580 
 
 INSURANCE LAW OP CANADA. 
 
 Looking at the provision excluding payment for damages occas- 
 ioncMl by explosions, except explosions by gas, he was strongly of 
 opinion, that the policies would not cover the loss occasioned by 
 the particular accident. The directors themselves thought, that 
 they were under no legal liability, but professed to make the pay- 
 ment ex gratia, and in order to promote the interests of the com- 
 pany. Could not, then, the whole body of shareholders sanction 
 such a payment ? The damage having been occasioned by some- 
 thing analogous to, though not falling within, the risks insured 
 against by the policy, the question was, whether the company 
 were not entitled, b}' way of preventing any complaint, or litiga- 
 tion, to make good these small losses, rather than incur the risk of 
 being damaged in reputation as an illiberal office. 
 
 Upon this question, the evidence of the mode of carrying on 
 business by companies of this nature was very material. It 
 appeared, that other offices were in the habit of acting liberally in 
 respect of claims of this description not falling strictly within the 
 terms of the policies. Looking at the usage in this respect, there 
 was nothing extreme or unreasonable in the conduct of the com- 
 pany in determining that these losses should be paid. He could 
 have very little doubt, that the course taken by the directors, and 
 approved by the majority of the shareholders, was conducive 
 to the welfare of the company, and likely materially to promote 
 its interests. Upon the whole, therefore, the plaintiff was not 
 entitled to a decree, and as he had not come here to secure any 
 benefit to the company, the bill must 'oe dismissed with costs. 
 
 382. The effect of war.— The subjects of two states at war 
 cannot make a valid contract of insurance during the war,' and 
 an insurance on alien property does not cover loss happening 
 during hostilities between the respective countries of assured and 
 insurer." This is the law to-day ; it was not so formerly.' 
 
 The whole subject of contracts between alien enemies is ably 
 discussed in the case ot GriswoUl v. Wadding ton.' 
 
 The agent resident in one belligerent's territory, of a company 
 
 ' TIr' Hoop, 1 Kol)inson (Eiifj;. Adni.)li)() ; The Emulous, 1 Uallison, oOi, .J71. Gris- 
 wo!d V. \Vad(Uii,u;ton, K! .Tohiis, (X. Y.) WS. 
 
 '' Brandon v. Curling;, 4 East, 110, ci: parte Bous.sinaker, Vi Ves. Jr. 71. 
 
 ■' Furtado v. Uogers, 3 Bos. and I'ul. l!)l. 
 
 ^ 1() Johns. IDS, and see also DuPoncoau's note to his translation of Bynker- 
 shoeck on the Laws of War, p. Itw. 
 
M 
 
 LIABILITY FOR LOSSES, WAIVER OF CONDITIONS, ETC. 
 
 581 
 
 Oris- 
 
 established in the territory ot another belligerent, must receive 
 payments of premiumrt as they tall due, and thus keep alive the 
 policy, though he may not remit them.' 
 
 The tendency of international law, as expounded by the most 
 recent authorities, is to affect private business as little as possible 
 by war. Private interests must yield to public, but are tt> be 
 interfered with only so far as the public purposes absolutely 
 require. 
 
 It has been said recently, that it is possible to insure anything 
 in London,' and a good many merchants and others, to whose ven- 
 tures war would be disastrous, took out policies against such a con- 
 tingency at Lloyd's during the late Greco-Turkish crisis. The 
 rates paid were reported to be as follows : — In the event of war 
 between England and France, Germany or Russia, within one 
 year, 4 per cent, of the amount insured : in the event of war 
 between any of the six great powers before August 6th, 1897, 8J 
 per cent., and in the event of war between England and any 
 European country, except Turkey, oj per cent. ; the latter rate 
 (54 per cent.) was also charged for a policy covering in the case 
 of war between England and the Transvaal Republic within one 
 year. 
 
 363. Arson.-Arsou has been defined' as the voluntary, 
 malicious burning of a dwelling bouse, or outhouses within the 
 curtilage of another person, and punishable as a felony ; while 
 incendiarism is the act of wilfully or maliciously setting tire to 
 buildings, or other combustible property, short of felony. 
 
 In an English case it appeared, that an insurance company 
 granted a tire policy to one S., ami during the currency of the 
 policy S.'s wife feloniously burnt the property insured. The I'oni- 
 pany, not admitting any claim on the policy, brought an action 
 against S. and his wife lor the damage done by the aet of the wife. 
 The court held, first, tliat the action could not be maintained, as 
 the insurer has no other riglits than those of his assured, an-l can 
 enforce those only in his name and after admitting the claim on 
 the policy ; secondly, that the action for the felony, if it were 
 
 ' Kerslmm v. Kelsey, 10(( Muss. M\, May, l:i rl sfy. I'uli' mipni p. 2HS. 
 - See also supva Ji Old. 
 ^ Griswold, iVJ. 
 
 See also mipru § 21'.) d, (per Armour, .1. : the word '• iiu'eiidiarisiu " cr.minonly 
 applies to buihliogs only). 
 
682 
 
 INSURANCE LAW OP CANADA. 
 
 maiiitainal)le, was maintainable without showing that the felon had 
 been jtrosecnted. 
 
 Semble, that a felonious burning by the wife of the assured, 
 without his privity, is covered by the ordinary tire policy.' 
 
 364. Plate glass insurance— Proximate cause of damage- 
 Notice of loss to agrent. -By ii policy of insurance, plate glass in 
 the plaintiff's shop front was insured against "loss or damage 
 originating from any cause whatsoever, except tire, breakage 
 during removal, alteration, or repair of premises," none of the 
 glass being " horizontally placed or moveable." A tire broke out 
 on premises adjoinijig those of the plaintiff and slightly damnged 
 the rear of the shop, but did not approach that part where the 
 plate glass was. Whilst the plaintitl, assisted by neighbors, was 
 removing his stock and furniture to a place of safety, a mob 
 attracted by the tire, tore down the sliop shutters and broke the 
 windows for the purpose of plunder : — Tt was held, that the proxi- 
 mate cause of the damage was the lawless act of the raol). and 
 that it did not originate from "tire or breakage during removal," 
 within the exception in the policy. 
 
 The policy which had been effected through L., tlie local 
 agent of the defendants, was subject amongst others, to a condition, 
 that, "in case of loss or damage, an immediate notice must be 
 givi'ii to the manager, or to some known agent of the company." 
 After the making of the policy, and before the loss, the defendants 
 had transferred this branch of their business to another company. 
 The plaintiff', not being aware of this transfer, gave notice of the 
 
 ' Midland Ins. Co. v. Smith and wife, (i Q.I!.!), ."xil. 
 _ For recent Anu'riean deiMsions in <-onn('(lion wiiji tlu> f|ut'stion of arson see: 
 
 Names v. Dw^.-IIouse Ins. Co. of Uoston. (il \. W. Rej). (isi),")i, (iif, as to forfeit- 
 ure of insurance money liotli for l)uil(iin'j;iuui property vlierein in case of conspiracy 
 to eunimit arson, also as to occupancy witli tlie intention to b\irn tlie property, and 
 claim for tlie destruction of goods wliere there arc no remnants. — Knoxville F. Ins. 
 Co. rf at. V. Avery I't <il., 'Vl S.W. Rep. 2.")li (1S!)5), where evidence of arson was held 
 adndssible under general issue, (the ruling would ho ditfercnt in Quebec). — Nortliern 
 Ass. Co. V. .Samuels ct id.. Zi S.W. Rep. 281) (ISiXi). the fact that assured transferred 
 policy after suit is not competent evidence to show arson.— Weir v. .Ktna Ins. Co., 
 :W N.Y. Suppl. (ISik;), 21(); 70 X.V. St. l{ep. (ISOti). TilO, error to rel'u.se instruction, 
 that company is bound to i)rove arson by preponderance of testimony and not to 
 prove it beyond a reasonable doubt. — Feibelinan v. Maneh. V. Ins. Co., lit So. Rep. 
 510 (ISiKi), arson committed by agent of insured will not avoid policy.— Longcor v. 
 Merchants' Ins. Co., 10 N..T.L..I. 152 (ISi)li), past attempt- of arson is not iiicrease of 
 hazard.— McDowell v. f^onn. F. Ins. Co., U N.E. Rep. (1S05), (id!), the fact of many 
 previous fires, in which assured or his relatives were concerned, i.s not admissible in 
 support of plea of arson. 
 
LIABILITY FOR LOSSES, WAIVER OF CONDITIONS, ETC. 
 
 ^83 
 
 damage to L. who nuule his report thereon to the hitter company : — 
 It was (leritlcd, that the notice to L. was a sutticieiit i\otice 
 within the above condition.' 
 
 365. Liability in accident insurance.— Ac(i(h'nt insurance 
 has, no less than otlior kinds of insurance, been the subject (jf a 
 considerable amount of litigation. Whether the assured exerci>ed 
 the necessary precaution to be expected from an ordinarily prudent 
 person, or whether he overstepped those limits and voluntarily or 
 recklessly exposed himself to unnecessary danger, (a risk the (H)ver- 
 ing of which the company never contracted for) ; or whether an 
 injury or death has been in fact the result of an accident within 
 the meaning of the policy ; these and other questions have 
 required the interventi(Mi of the courts for their a<ljustment,as will 
 be seen from the cases reported or ri'ferred to hereunder. 
 
 Upon the question of voluntary exposure to unnecessary 
 (hiMger, an action wsis brought to recover upon a policy of insur- 
 ance effected by the company respotidenls u]« ii the life of plaintiffs 
 deceased husband, J. N., who met his di'iith during the currc.icy 
 of the policy, from being run over by a train of cars upon one ot 
 of the lines of the Northern Railway through the company's yard 
 at Toronto. In answer to the plaintitt's claim, the respondents, 
 amongst other defences, by their foiirtli plea invoked a condition 
 to which the policy sued on was subject, to wit : '' Xo claim shall 
 be made under this policy when the death or injury may have 
 happened in consequence of voluntary exposure to unnecessary 
 danger, hazard, or perilous adventure." 
 
 The uncontradicted evidi>nce was, that the deceased wa<5 
 killed by the train coming against the vehicle in which he was 
 driving alone, on a dark night, in what was called a network of 
 railway tracks in the company's station yard at Toronto, at a 
 place where there was no roadway for carriages. 
 
 Tlie Suprone Court of Canuda, affirming the judgment of the 
 court l)elo\v, (7 Out. App. R. 570), was of the opinion, thattiie undis- 
 puted facts established by the plaintitt showed, tluit the deceased 
 came to his death in consequence of voluntary exposure to unneces- 
 sary danger, and that, therefore, respondents wore entitled to a non- 
 suit.- 
 
 1 Marsden v. City and County Ass. Co., 1 C.P. itii. See also mpi-ti ^ 2\). 29a 
 and 2!)1). 
 
 - Supreme Court of "■•'.■da, Ni'iU v. Travelers Ins. Co., 12 8.C.R. 5.5. 
 
'lie 
 
 
 
 hli 
 
 ■m 
 
 ■lli 
 
 684 
 
 INSURANCE LAW OP CANADA. 
 
 There waa a Bomewhat similiar case in England, where it 
 appeared, that the assured met his death through attempting in 
 broad daylight to cross the main line of a railway in front of an 
 approaching train, by which he was run over and killed. There 
 was no evidence that he was short-sighted or deaf. At the 
 place where the accident happened, there was no station or proper 
 crossing, and there was no obstruction to prevent a person about 
 to cross from seeing an approaching train. There was no ground 
 for imputing negligence to the servants of the railway company, 
 and the court therefore decided that, the risk incurred by the 
 insured being one which either was obvious to him or would have 
 been obvicus to him if he had been paying reasonable attention to 
 what ho was doing, the case came within the exception in the 
 policy.' 
 
 In another, Oanadian, case the evidence showed, that one M., 
 who was described in the application for insurance as superinten- 
 dent of the Intercolonial Railway, was insured by the company 
 appellant against accident, and by one of the conditions ot the 
 policy it was t^tipulated as follows: — "The insured must at all 
 times observe due diligence for personiil safety and protection and 
 in n(j case will this insurance be held to cover either death or 
 injuries occurring from voluntaryexposure to unnecessary or obvious 
 
 dangi'r ot any kind, nor death or disablement from getting 
 
 or attempting to got on or off any railway train, etc., while the same 
 is ill motion."' 
 
 M., when travelling on the business of his railway, was killed 
 while getting on a ti-ain in motion, and the court held, tliat, inns- 
 much as M. was insured as suj)erinten(lent of a railway, and there 
 was evidence that his duties required him to get on and off trains in 
 motion, of which facts the insurer had knowledge, the I'ondition did 
 not itjiply and the company was liable.-' 
 
 A plea of voluntary exposure fornie(i part of tlu' defence in 
 an action which was broiisi'lit to recover the amount of an accident 
 
 I Cornish v. Aciidoiil Ins. Co., it (^M.l). I"):!. 
 
 ■-' Q.H. Aicidciit Ills. C.). i)f Nortli Am. it McKeu, M.L.K. 7 (^.M. U'.m. 
 
 SiM' iilso.Siiiilli V. I'l-i-fi'iTi'd Mut. Arc. Ass'ii, 02 N.W. Kl'Ii. (1S>.).-.1. i)!KI, jiiniptiiK 
 from II moving Iriiiii. I'^ollis v. IJ. S. Mut. Ace. Ah.s'm, (ill N. W. lU'p. (ISltri), Si)7, 
 wiilkiiiu: iicrosH a iiiilroml trestle. —'rriivclcrs Iim. Co. v. Siiowdeii, <i;t N. \V. Hep. 
 (IHI*,-)), :t!l2, eiiterinn or leiivinn ii luoviny; I riiiii, — Kid, and Ciis, Co. v. Cliiiniliei's t'/ iiL, 
 *? Cent. Liiw .1. -'SOilSlliO, Hiitiii>i on nillroiid truck.— lieliniiiii v. (Jr. i'liisteni Cum. 
 and Iiidenin. (;o.. Hi) N. V. .Suppl. 1112 tISKil), stopping onto railroud truck. 
 
. 11 
 
 LIABILITY FOR LOSSES, WAIVER OP CONDITIONS, ETC. 
 
 585 
 
 M- 
 
 insunince policy in a case, where the assured was frozen to death. 
 The particulars as submitted to the court were these : — The defend- 
 ants entered into a contract with the plaintiffs to pay $1,000 within 
 90 days after sufficient proof that the assured, one of their members, 
 "shall have sustained bodil}'^ injuries effected through external, 
 violent and accidental means, and that such injuries alone shall 
 have caused death within 90 days from the happening thereof;" 
 and the policy contained these further provisions : "that the insur- 
 ance shall not extend to death or disability caused by an injur}' of 
 which there shall be no external and visible signs * * 
 
 * * nor to any case except when some injury efle(!ted 
 
 as aforesaid is the proximate and sole cause of the disability or death ; 
 and no claim shall be made under this policy when death or dis- 
 ablement may have been caused in conseciucnce of ex[)Osure to any 
 obvious or uunecossary danger." 
 
 The assured was frozen to death on the prairie near Fort 
 Macleod, to which |>lace he was returning from one of his trips in 
 conii)any with the driver. While still about eight miU's out, the 
 waggon broke down. The weather had turned suddeidy very 
 cold and stormy, and the assured being too cold and numb t(j 
 walk, and unable to ride, it was agreed that he should rcnuiin 
 whrre be w.is, wliile the driver nxhs to Macleod tor assistance, but 
 he (lied before (lie driver returned. The assurinl was sullicicntly 
 Wiinaly clotlu'd for the weather as it was when he si't out, but not 
 for I be storm which be encountered. 
 
 Tlu' court held, that he met his death as tlie result of an injury 
 eHccted thrDUgh (external, violent ami accidental means within the 
 nu'iming of the policy, and that it could not be said that he had 
 exposed liiniscll' to iiny obvious or unncccssiirv (hinger, and that 
 the iilaintills were cntitU'd to I'l'covi'r. 
 
 Sincliiir \\ Maritime Passenger Assurance (Company, 7 .liir. 
 N. S., IJiiT, was (iisliiignislied.' 
 
 ' Noi'tliwi'sl ('ciiinii. 'I'liiv. .\h>. v. The liOtidoii (iiiiir. .'ind Ace. Co. (ISIliI), 10 
 Miinitotm Hep. "lilT. 
 
 SiH'iil.so: l)c li(i.v V. Tniv. Iiih. Co,, :t2 All. Ui-p. (ISll.")), lldS. wlii'if it was said, 
 that by " volmilivry exposure to iimii'i'i'.s.sai'.v diiiiK<'i'" is iiu'iinl " inti'iitioiml expo- 
 sure," tt« whi'iv oiu> ncls ho ri^i'klcsi.ly iind ciipi'li'ssly iis to show iiii uller diMroKard to 
 a known dan(j;or, or does ai\ acl. In the lace of a risk ol' danger ho olivious that a 
 prndt'Mt man, ('xorcisinK rcasonalilc I'orcslnlit, wonld not have done it. — Iless v, 
 Van Anki^n, (inar. and Ace. I.loyds, liU N. V. Sup])!. (JKiri), lat; (I.-) \. V, ,St. Hiv. 
 (ISi),")), lilt, as to aci'ldcnl, in consiMim-nci' of cnleririK a saw mill. Ki'i'f4' \. Nat. -Aec. 
 Sqc, Its N. V. SnppI, S."il (ISIHI), I Aiip. Div. .'ML', alli'Kcd over exiTi ion while ildliiK in 
 
 n 
 
1 
 
 lil 
 
 586 
 
 INSURANCE LAW OF CANADA. 
 
 'PI 
 
 In the recent English case of Pugh v. London B. and S. C. 
 Ry. Co.^ the court declared, that a sigtial man in the employ of a 
 railway company, who was incapacitated from employment 
 through a nervous shock received wliile endeavoring to prevent 
 an accident to a train, was entitled to an indemnity within the 
 meaning of the policy. 
 
 While in another recent English case, Havilyn v. Crown Aca. 
 Ins. Co.,- an injury to the knee effected when stooping to pick 
 up something from the ftoor was held to have arisen from " exter- 
 nal means " and also by " violent accidental and visible means " 
 within the meaning of the policy. 
 
 Ill Ace. Ins. Co. of N. America v. Young,^ the evidence showed, 
 that the amount insured was payable, inter alia, in case " the 
 bodily injuries alone shall have occasioned death within ninety 
 days, from the ha|)pening thereof, and provided that the insurance 
 should not extend to hernia, etc., nor to any bodily injury happen- 
 ing directly or indirectly in consequence of disease, nor to any 
 deiUh or disability which may have been caused, wholly or in 
 part, by bodily infirmities or disease existing \)v'\ov or subse(|ucnt 
 to the date of this contract, or by the taking of poison, or by any 
 surgical operation or medical or mechanical treatment, nor to an}' 
 case except where the injury aforesaid is the proximate or sole 
 canse ot the disability or <leatii." 
 
 The insured was accidentally wounded in the leg from falling 
 from a veranda, and, within i'our or live days, the wound, wliicli 
 apiR'ared at first to be a slight one. was coniplicatml by erysipelas, 
 ti'om which ileath ensued within a i'aw un'eks. 
 
 At tlie trial, tbcre was conflicting evideniic as to whether the 
 erysipelas resulted solely from the wound, but tlic court tbund. on 
 the fsu'ts, that tlu' erysipelas followed as a dii-eet result from the 
 extei'nal injury. On a[»iie;d to the Supreme (Jourt : — 
 
 It was held, per Strong, Foiirnier and Patterson, .1..!., thiit 
 the extennil injury was the proximate or sole cause of death within 
 the meaning of the policy. 
 
 ii iMcyclo nu't'.-Conlioy v. Ily. Ollls. aiul i'lmployees Ace. Ass'ii. Ill N.H.R. 1017 (IHllii), 
 seining ill iIiurj;iTims wiUcr.— IJollins v. HiiiikcfH Ace. Ins. Co. ft a/., ill X. \V. Rep. 
 (IH!)")), 77S, llHliiii« DM 11 iliirlc iiii^lil, -Ciirpi'ntcr I'f al. v. Am. Ace. Co., 25 Ins. L, J. 
 TA\'i, ili'iilli ri'Hiilliiijj; Iroiii bciiif^ l<ick«(l by ii iiiiil>> known lo lit' (liiiiKoions. 
 MKiim;. C. a,), 2 Q. IJ. (IHDii). Liiw Hep. (IslHl). •JIS. 
 
 n:. a. (isiKt). 1 Q. n, 7i-)(). 
 
 ■ '' SuprciiR' Court of Cainula, 2) S. C. K. 2SU, oiled infra S :t75. 
 
pTTrf 
 
 LIABILITY FOR LOSSES, WAIVER OF CONDITIONS, ETC. 
 
 587 
 
 In Smith v. Are. Lis. Co..' (in wliich case Fitton v. Ace. 
 Doatli I118. Co., 17 C. B. (N. S.) 122 ; 34 L. J. (C. P.) 28, was 
 discussed), the policy contained the Ibllowing conditions : — 
 " This policy insures against all forms of cuts, etc., when acciden- 
 tally occurring from material and external causes operating upon 
 the person of the insured where such accidental injury is the 
 direct and sole cause of the death of the insured, hut it does not 
 insure against death arising from rheumatism, gout, hernia, 
 erysipelas, or any other disease or secondary cause or causes arising 
 within the system of the insured before or at the time of or follow- 
 ing such arcidental injury (whether causing sueh death directly or 
 jointly with sucli aceiilental injury.)"' 
 
 The assured accidentally cut his foot, erysipelas supervened and 
 he died of that disease. The erysipelas was caused by the wound, 
 and ])ut for the wound he would not have suftered from it. The 
 court was of opinion, that the insurance company was protected by 
 the clause (pioted above and was, therefore, not liable. 
 
 Another annc,- but with a diftei-ent result, of diaili irom 
 disciise as the cHcct of injury caused by accident, and decided liy 
 the umpire in an arbitration autboi'iscd under the English Com- 
 mon [iaw r'roct'diire Act, 1S54,' turned upon the (piestion wlictlier 
 the ccim]>any was liable tor the sum jiayablc upon death 1),\ :icci- 
 dent. or wlietlicr llic tender of the aiiiouni I'or disal)ilily iiy the 
 company was sulticient under the policy. The evidence showed, 
 tluit the as.-ured dislocate(l his shoulder ; he was put to bed. imt, 
 sutiei'Inff great liain and Ix'inu' resth>ss and uiuiiilc to bear hcavv 
 or warn\ elolhing on him, he contracted a cold, pneumonia super- 
 vened, niid he dieil. 
 
 Tlie court liehl the company lialile for tiie death. Iluddle- 
 slon. ii.. (Willis, .1., concurring) consHMied the woi'ds in the policy, 
 "ir the assured shiill su.-tain any injury I'aused by accident and 
 shall <lie from I he eilects of such injury." with this conchi-^ion : — 
 "These woiMJs appeal' to nie to nienn. that the iiijiii'v must lie 
 immeiliately caused hy tiie accident, hut that iheilciitii need not 
 be innne(liately causiMl l)y the injui'v. Now. I ihink lluit t hi! 
 facets stateil by the umpire do show that in ihi- casiMlie injury 
 was not the proxinnite cause of the ilealli of the assured, yet his 
 death did eiisiu' from (lie natural conscijueiKH's of the injury.'' 
 
 I .") K.\. ;i(L'. -TsiM V. Ity. rass. Ass. Cti, (1.S.SII), I,. I{. 22 g. It. 1). rM. 
 ■' 17 ami IS Vic, c. 1^."., s. :,. 
 
 I' ' 
 
 M 
 
I 
 
 I; 
 
 588 
 
 INSURANCE LAW OP CANADA. 
 
 Again he said, after reciting the facts : " These facts appear to me 
 to constitute a chain of circumstances leading naturally from the 
 injury to the death." All these circumstances the court treated 
 as " effects of the injury." 
 
 Where a policy of insurance against death from accidental 
 injury contained the following condition : — " This policy insures 
 payment only in case of injuries accidentally occurring from material 
 and external causes operating upon the person of the insured, 
 where such accidental injury is the direct and sole cause of death 
 to the insured, but it does not insure in case of death arising from 
 fits * * * or any disease whatsoever arising before 
 or at the time, or following such accidental injury, whether con- 
 sequent upon such accidental injury or not, and whether causing 
 such death directly or jointly with such accidental injury ; " and 
 the insured, while at a railway station, was seized with a fit, fell 
 forward oft the platform across the railway and was killed by an 
 engine and carriages just passing, the court, nothwithstajuling the 
 explicit wording of the above clause, was of opinion, that the death 
 of the insured was caused b\' an accident within the meaning of 
 the policy, and that the insurers were liable.^ 
 
 So also in Winspeav v. Accident Ivs. Co.,' the proviso in the 
 policy excluding " any injury caused by or arising from natural 
 disease or weakness or exhaustion consequent upon disease " was 
 declared not to apply to a case where the assured, while crossing 
 anil fording a stream, was seized with an epileptic tit and was 
 drowned. The court decided, that death was occasioned by an 
 injury within the risk covered by the policy. 
 
 1 I.iUvriMice V. Acciik-iit, Ins. Co., 7 Q.H.I). 2H1. - li Q.B.D. 12. 
 
 Vidf IVmlor v. N)it. Masonic Acp. A.ss'n, tW X. W. Rep. (ISiti")), CM. for sudici- 
 ency of evuU'iiee us to proxiiimtc cause of deatli.— See al.so Travelers Ins. Co. v. 
 Melick, (ii") Fed. Rep. (IS!).")), ITS ; 24 Ins. Law .Tournal (18!)")), I:i0. 
 
 A.s to eonstrucUoii of external, violent and aceidental means, see also Cobb v. 
 Preferred Mat. Ace, Ash'h of X. Y.rfn/.; Pref. Mnl. Aee. As.s'n of N. Y. ,i al. v. 
 Col)l), 2.") Ins. L. .1. (lS!)t)), ii\), paralysis of optic nerve owinn to overexertion when in 
 a feeble condil ion. -Meyer v. I''id. and Cas. Co., li.") X. \V. Hep. ;i2S (lS<)(i), injuries from 
 fall due to unexi)ected physical disorder. 
 
 Healey v. Mnt. Ace. .Vss'ce Co. (1S!H)), i:i;t 111. ,").")(! ; Travelers Ins. Co. v. Dunlap, 
 25 Ins. L. J. (IHDO), (KM, death troni taking poison hy mistake.— Ilailey v. Interstate 
 CuH. Co. of \. Y., K) N. Y. Snppl. (1H!MI), ni;!, blood poisoniiiK from hypodirmic 
 injection.— Fid. and Cas. Co, v. Waterman, 5!) 111. .Vi)p. 207; .Menneilly v. Kmpl. 
 Liab. Ass. Co., 1 IS X. Y. .MMi, (ISlHi). death from inhaling nas. 
 
 The press have recently noticed a case before the Court of .\i)peals of Kentucky, 
 b\lt not yet reported, where it was decided, thai death caused by blood iioisonInK 
 resultinj.; from a mos(|uilo bite is to be classed amon^ aceidental deaths. 
 
 The ell'ect of taklnn or inhalinx poisonous or diseased .substances has been fully 
 
^RPf 
 
 m 
 
 •;1 
 
 ll :^:: 
 
 
 A\i 
 
 LIABILITY FOR LOSSES, WAIVER OP CONDITIONS, ETC. 
 
 58» 
 
 It will readily be seen, that it is often difficult to say whether 
 death by violent means has b'een the result of purely accidental 
 injur\' or was caused by an iytientional act of the assured, in which 
 latter case the company would be relieved from all liability, as 
 accident insurance policies generally contain a stipulation exclud- 
 ing cases of suicide.' 
 
 The legal presumption in accident insurance, as pointed out in 
 Cronhhihe v. Travelers Ins. Co.,- is, that injuries are accidental 
 unless and until it is proved that they have been intentionally 
 inflicted or caused by the negligence of the assured. 
 
 The following is a leading Canadian case which came before the 
 Court of Common Pleas of Upper Canada. The insured, whose 
 policy t'overed death by accident, was found dead in a cattle guard 
 on a railway, having been run over by a passing train. The cattle 
 guard was at the side of a street and near the end of the railway 
 station platform, which extended to and adjoined the street. 
 Then' was no express evidence as to how the deceased got into 
 the cattle guard. The insurers set up that, contrary to the terms 
 of the policies, the death was (iccasioned by suicide or exposure to 
 obvious and unnecessary danger, by the insured attempting to 
 cross over the street by walking on the track and then falling into 
 the cattle guard. The case was well considered upon leailing 
 cases as authorities. 
 
 dlscussofl in an article in 2S CliicaKo Lcjj;. Ne«s (ISlKi), :U4, entitled " The seope of 
 accident insurance," in which the writer concludes that, without a special exception 
 in the imlicy, avoiding liability in such cases, the company should l>e held liable. 
 
 For construction of " occupation " see Union Mut. Ace. Ass'n v. Frohard, (ISiW), 
 i;tl 111. 22S, where a person insured as "merchant" was accidentally IdlliMl while 
 hunting'. -M«!tri)p. Ace. Ass'n v, Hilton, (il 111, App. 101), livery stable owner 
 injured while driving a cab.— Standard I,, and A, Ins. t'o. v. Taylor, ill S, W. l{ep, 
 781 (ISll(i), railroad l>lacksmilli injured coupliufz; cars. 
 
 Fidelity and Casually Co. v. Johnson, 17 So. Hop. (IWCi), 'J, where death by hauK- 
 iuK at the hands of a mob was held an accident within the nieaninii of the policy.— 
 Rol)inson v. V. S. Mut. Ace. Ass'n, (18 Fed. Rep. (18!>5», 025, where the assured, beiiiK 
 unarmed at the time, was shot while eiijj;au:ed in an altercatit)n. and death was held 
 to be accidental. -Hut see .Vmerican Ace. Co. v. Carson. 21 Ins. I.. .1. 7:ts (ISlCo and 
 25 ib. 78(i, (ISlHI), as to recovery where <lealli was eaused by the assured beinn shot 
 by a prisoner whom he wa< attempt inn '" arrest, the iiolicy excludinjj: " intentional 
 injuries inllicted by the insured or any other person." .loiies v. l. ,S. ,Mut. Ace. 
 Ass'n, (II N. \V. Hep. (1S!I.-)|, is."), death in consei|uence of alleged violation of law. 
 
 For death resulting from a personal rencounter not being included in an acci- 
 dent insurance policy, see tircsliam v. Fi|uitable Ace. Ins. Co. (ISl)l), S7 (ia. ll)7. 
 I See hu'rn chap. XX. 
 
 'Mlf^H!)), ir> Wis. 11(1; 111 Ins. L. .1. 207.— See also Ingersoll v. Knights of Colden 
 Rule, V. S. C. C, 21 Ins. L. J. (18itl), 270; and for the same ride applied to life insur- 
 ance, when death is caused by violent means, see the very recent case of Cro/ier v. 
 Home L. Ins. Co., 20 L. N. 108, infra S :M. 
 
 i 
 
-:'iii 
 
 590 
 
 INSURANCE LAW OF CANADA. 
 
 iii 
 
 ill!!' ; 
 
 Inter alia the court held, that the proof of such defence rests 
 with the insurers setting it up, and the evidence of it should he 
 clear and convincing. 
 
 The case came up on a rule for a new trial, the jury having 
 found a verdict against the insurers, which rule the court discharged. 
 Upon the evidence, it was held, that there was none of any such 
 exp(jsure, for that it was equally consistent with the evidence that 
 the deceased accidentally fell into the cattle guard from the plat- 
 form while walking along the platform ; and, at all events, that 
 the using of a track to cross a street was not the mode of walking 
 thereon against which prohibitions in these policies are levelled. 
 As to the clause in the policy, that "the insurance shall not be 
 held to extend to mysterious disappearance, nor to any case of 
 death or disability the nature, cause or manner of which is un- 
 known, or incapable of direitt and positive proof," Ilagarty, C. .1., 
 said : — " We think it would be a perversion of the true meaning of 
 this clause to hold that, where the immediate cause of death is 
 indisputable, and evidenced by outward violence caused by a train 
 running over the body, an accident prima facie within the direct 
 meaning ot the insurance, it can be any objection that no human 
 eye witnessed the precise manner in whicli the deceased met his 
 fate." 
 
 " A large proportion of accidental deaths occur under such 
 circumstances that evidence is wanting as to the precise manner 
 in which the deceased met his fate. Where the visible injuries 
 plainly account for death, it can hardly l)e necessary to explain 
 step by step how it occurred." ' 
 
 The question of accidental death or suicide was also fully 
 discussed in a recent Scottish case,- where the policy re([uired 
 satisfactory evidence it the claim was nuide on the ground ot 
 deatli from accident. The assured was tbund drowned in the 
 Clyde aiul the company, alleging suicide, refused payment in the 
 absence of sufficient proof to the contrary. 
 
 The Court ot Sessions, recalling the judgment ot the Sheriff's 
 Court, gave a decision in favor of the pursuer ordaining the com- 
 pany to pay. Lord Justice Clerk said : — 
 
 " The oidy fact apparent here is that the deceased, after he 
 left his house, was found drowned in the Clyde. There is nothing 
 
 1 WriKht V. S>m Mut. Life Iii.s. Co. (I.S7S), U. C. 0. P. 221. 
 
 - Boydor MacDonald v. UefuKo Assur, Co. (1890), 17 Seas. Cas. 055 (Sc.) 
 
^iMM ffT^ 
 
 LIABILITY FOR LOSSES, WAIVER OF CONDITIONS, ETC. 
 
 591 
 
 ill his previous history, or what was known of him up to the date 
 of liis death, to suggest that he was likely to commit suicide, or 
 that if he was found drowned it would he the result of anything 
 else than an accident. Now, the evidence which the pursuer 
 hrings forward is, that the deceased was a reputable man, so care- 
 ful of the interests of others, indeed, that he insured his life, and 
 u man in no way likely to commit suicide, and that he disappeared 
 and was subsequently found drowned in the Clyde. That, on the 
 lace of it, points to accident and to nothing else, and it is reason- 
 able to say that in such a case the presumption is in favor of 
 accident. There might be many cases in which, where the insur- 
 ance is against death by accident, nothing at all could be recovered, 
 if it was essential that the pursuer must prove conclusively that 
 the cause of death was accident, not suicide. In my opinion, if 
 the pursuer brings forward evidence of the death having happened 
 in such a manner as naturally points to accident, she fulfils all that 
 is incumbent on her, and I hold that she has done so here. To 
 call upon the pursuer to disprove negatively other causes of death, 
 would be to put upon her a burden which is not according to a 
 fair reading of the contract." ' 
 
 1 See also De Viiii v. Com. Trav. .Mul. Ace, As.-s'ii of AiiKTicu, lit! N. V. riuppl. 
 931 ; 02 Hun. 2r)(i (1S!K>), for a ca.se of accidental drowniiifj or suicide.— Meadows v. 
 Pac. Milt. L. In.s. Co., 21 Ins. L. .1. (IS!),")), 721 ; .Standard L. and A. Ins. Co. v. 
 LanRsdon, :«) S. W. Hep. (l.Si).5), 127, for presumption as to cause of death, burden of 
 proof and (lelinition of ' roadbed." 
 
 In Whitlatcli v. I'Md. & Gas. Co., 25 Ins. I.. ,J. (ISiMi), ,")«(>, and National .Mas. Ace. 
 Ass'n of Des.Moines v. Shrvock, 71! Fed. Kcp. 771 (IHiHl), it was held, that the burden 
 was on plaintifl' to prove, that the a.s.sured died from external, violent and accidental 
 means, and that the accident was the sole cause of death. 
 
 But in Williams v. U. S. Mut. Ace. Ass'n, lil N. Y. Suppl. (1S0.5), :m ; (i:t N. Y. 
 St. Kep. (18)).")), 7i);!. the court said, that the plaintiU'is not obliged to prove that the 
 a.ssureil did not commit suicide or did not voluntarily expose himself to unnecessary 
 danger. 
 
 In McGlinchy v. Kid. & Cas. Ins. Co., IH Ins. L. .1. 128, the dead body was de- 
 clared to be sutlicit'iit evidence ; but it is now generally stipulated in the policy, that 
 it shall not be so. 
 
 A case, in which the (luestioii of proof was fully discussed, was that of Ttter v. 
 Trav. Ins. Co. (1887), (m Mich. .">45, s. c, ;t2 N. W. Hep. 812, where the insurer 
 attempted to have the benefit accorded to it of the clause in its policy requiring 
 direct and positive proof, that the death or injury insured against was caused by 
 external violence and accidental means, and was not the residt of design, either on 
 the part of the insured or any other person. I'he Supreme' Court of Michigan were 
 very decided in their opinion upon the matter, spoken through Morse, .1., as fol. 
 OWH : — "Courts will not i)erniit the course of justice, upon trials before them, to be 
 stipulated or counteracted in such manner as to defeat the ends to be suliserved by 
 such trials. The parties to the contract cannot agree to oust the courts of jurisdic- 
 tion over such contract. The operation of this clause, reijuiring direct and positive 
 
692 
 
 INSURANCE LAW OF CANADA. 
 
 Upon the question of total disability from old age, an action 
 was taken in Ontario under the following circumstances : — The 
 plaintiff, who was a farmer, had his life insured by the defendants, 
 and there was a clause in the policy, or certificate of insurance, 
 providing that in case of " total disability " of the insured the 
 insurers would pay him one half the amount of the insurance. 
 About two years after effecting the insurance, the plaintiff' conveyed 
 his farm to hia son, reserving to himself and wife certain benefits, 
 but continued to work upon the farm for about a year thereafter, 
 when he was attacked by bronchitis and asthma. 
 
 In an action to recover one half the amount of the insurance, 
 the evidence showed, that the plaintiff was totally disabled, per- 
 manently and for life, from doing manual labor, and that the 
 diseases from which he suffered, were the proximate and immediate 
 cause of his disability. A medical witness said, that he considered 
 the plaintiff's condition attributable to a considerable extent to his 
 advanced years, he being about seventy. The court therefore 
 decided, that total disability to work for a living was what was 
 intended to be insured against, and disability from old age was 
 not excluded, and the evidence showed that the plaintiff' came 
 within the terms of the certificate. The arrangement made by the 
 plaintiff with his son, after the certificate was issued, could have 
 no effect upon the prior contract of insurance.' 
 
 proof, in many cases would in effect preclude the court from jurisdiction, and bar a 
 recovery. If they can make tliis agreement, tliey can also stipulate that the evi- 
 dence must come from certain persons, or make any agreement they see flt, control- 
 ling and directing the course of proceeding upon the trial. They may contract in 
 relation to a condition precedent before bringing suit, or in relation to anything 
 going to the remedy, but not to the right of recovery itself. Circumstantial evi- 
 dence is regarded by the law as competent to prove any given fact, and sometimes 
 it is as cogent and irresistible as direct and positive testimony. . . . When a 
 stipulation or exception to a policy of insurance, emanating from the insurers, is cap- 
 able of two meanings, the one is to be adopted which is the most favorable to the 
 insured.'" (Rule conh-(( proferentem). 
 
 ' Dodds v. Can. ^lut. Aid Ass'n, 1!) O.K. 70. Q.IJ.D. 
 
 "Immediate" disability has been construed in Merrill v. Trav. Ins. Co., 2.5 Ins. 
 L. J. (l.S!l()», 1 1:<. I'ref. Mas." Mut. Ace. Ass'n v. .Fones, tiO 111. App., KMi. 
 
 Total blindness, resulting from accident, was held in Moge v. Societe de Bien- 
 faisnncc (Mass.), :15 Ij. R. A. 730, to be within the provisions of a policy proviJing 
 for weekly benefits whon one is " incapable of working " by reason of accident. 
 
 Where a policy for a stated sum provides that, if the assessment levied to pay it 
 is insullicient, tlie beneficiary sliall receive only such proportion as may be applicable 
 to its payment, the burden of proving that the assessment was not sutlicient is on 
 the company. This was the decision rendered in People's Mut. Ben. Soc. v. McKay, 
 30 N. E. Rep. (1895), 231 ; re-hearing denied, 10 N. E. Rep. (1805), 010. 
 
LIABILITY FOR LOSSES, WAIVER OF CONDITIONS, ETC. 
 
 o!t3 
 
 In an English case, where an infant entered the service of a 
 railway company and agreed to become a member of an insurance 
 society and to bo bound by its rules, the railway company had 
 contributed to the funds of the society. The rules provided com- 
 pensation for otlier accidents than those covered by the "■ Em- 
 ployers' Liability Act," 1880, but restricted compensation to less 
 than the amount which could be recovered \indorthat Act, which 
 contained provisions forfeiting benefits in dehuilt of notice of an 
 accident, in case of various breaches of the regidations, and refer- 
 ring disputes to arbitration : — 
 
 It was held, that the agreement to l)ecome a member of the 
 society and to be l)ound by its rules, was part of a contract of 
 service into which an infant was competent to enter, and it was 
 also held, that the contract was an answer to an action against the 
 railway company by the infant under the Act, for the restrictive 
 covenants were such as an insurance society might reasonably 
 make for the protection of its funds ; and the contract taken as a 
 wliole was for the benefit of the infant and binding on him.' 
 
 The terms " any one accident " and " from (such a date) " 
 were construed in the case of South Staffordshire Tratiiiiyn/s Co. v. 
 Sickness rnid Ace. Ass'ce Ass'iu- where a policy insured against 
 
 ' Clements v. London and North Western Railway, C.A., aftirni. Div. Ct. (ISIU) 2 
 Q.B. 182. 
 
 For recent American decisions renardins employers' liability, see Hawkins v. 
 MeCalla ct a/., 22 S.E. Rep. (ISOo), III, where it was decided that the fact of an 
 accident insurance comjjany undertakinj^ to indemnify an emi)loyer does not con- 
 stitute a contract between the employees and the insurance comiiaiiy.— Also Anokiv 
 Lumber Co. v. Fid. and Cas. Co. (Nelson, intervener), 2.5 Ins. I,. .T. (ISIM)), 211, as to 
 notice of injury and garnishment.— Refer also to s^ipra §§ 27c (note 11), 27d, 27e and 
 index for other cases of employers' liability. 
 
 ■^C. A. and Div. Ct. (1801), 1 Q.H. 402. 
 
 It has been decided in Commonwealth v. Phil. Inquirer, :{ Pa. Dist. H., 712, that 
 a coupon printed in a daily news|)apcr, otlering to pay a certain sum to the heir of 
 any one meeting death by accident, if the holder signs his name in a lilank space 
 and has a copy of the newsjiaper upon his person at tlie time of the accident, consti- 
 tutes an accident insurance policy beyond the ])owers of tlie printing comimny to 
 issue, and that, therefoi'c, a corporation, organized to publish a newspaper and con- 
 duct a printing business, lias no power to insure against accidents. 
 
 It ai)pears that the practice of newspapers of trying to increase their circulation 
 by oU'ering their subscribers an insurance against accidents, was tirst introduced in 
 England a number of years ago, but was discontinued soon afterwards upon objec- 
 tions being raised by the Revenui! authorities on account of the stamp duty. This 
 obstacle, however, was soon overcome by the proprietors of llie newspaper, who 
 made arrangements with a duly organized insurance company, whereby the latter 
 undertook to insure the holder of the paper, and thus the object was attained in a 
 legitimate way. This plan has found many imitators in Canada and other countries. 
 
 38 
 
 
 
 'i !■ 
 
 .1 >' 
 
•iL^ii 
 
 l! 
 
 •Ill; 
 
 594 
 
 INSURANCE LAW OF CANADA. 
 
 II: 
 
 " claims for personal injury in respect of accidents caused by 
 vehicles for twelve calendar months //'o/u November twenty-fourth, 
 eighteen hundred and eighty-seven " to the amount of " £250, in 
 respect of any one accident" A tram ear was overturned, forty 
 persons injured, and compensation to the amount of £833 claimed. 
 The defendants said, the overturning was one accident, and refused 
 to pay more than £250. : — The court was of opinion, that '' ain- 
 one accident " meant " injury in respect of which a jjcrson claimed 
 compensation," and the defendants were lialde for the £833. 
 '• From " was held to exclude November 24th, 1887, and to include 
 November 24th, 1888, the day of the accident. 
 
 366. Liability in guarantee contracts. Guarantee or fidelity 
 insurance' is closely allied to accident and casu.alty insurance, and 
 a company transacting the one generally undertakes to cover the 
 other also. There have been numerous instances, Itoth in Canada 
 and other countries, where the comi)anies have resisted the pay- 
 ment of claims made upon them upon different grounds, some of 
 them differences as to the exact interpretation of the agreement 
 ])etween the contracting parties. Several cases l)olonging to this 
 branch of insuranci^ have found a place in other parts of this work,- 
 aiid the following will be of no less interest, coming under the 
 general heading of liability. 
 
 In till' case of the Bank of Toronfn v. the European Assurance 
 Socieli/, which passed through the various stages of the Canadian 
 courts and was finally decided by the Privy Council, the Bank ot 
 Toronto obtained a policy of assurance from the European Assur- 
 ance Society, insuring them against such lof-s as might be occas- 
 ioned to the bank "by the want of integrity, honesty or fidelity, 
 or by the negligence, defaults or irregularities" of one A.M., their 
 manager at Montreal. M. subsequently allowed N. and 11. to 
 overdraw their account to the amount of §47,844.00, whilst he 
 knew they were not able to pay that sum, and whilst mixed up 
 with them in broking transactions. 
 
 It w'as decided, confirming thejudgmentof the Queen's Bench, 
 that the insurance company was responsible to the bank for the 
 
 1 See .sKpni § :!(), anil (il) Vic, e. 3(i (O.). s. 2, ss. 17. 
 
 It may lie noted here, that the reinsurances exclianged between lire insurance 
 offlces in Loinlon, Eng., are commonly designated as " guaranty " l)nsiness. Tliis is, 
 of course, dill'erent from Mie guarantee contracts ahove spoken of. 
 
 - See index. 
 
 
m 
 
 LIABILITY FOR LOSSES, WAIVER OF COXDITIONS, ETC. 
 
 595 
 
 irregularity, eapecially as, in the opinion of the court, the manatjer 
 concealed tlio fact of the overdrafts from the liead office by tictitious 
 returns, and acted in improper concert with tlie parties whom lie 
 allowed to overdraw.' 
 
 In Grand Trunk Railway Co. v. Citizens Insurance Co., the 
 latter pleaded gross negligence on tlu- part of the assured as 
 entitling them to be relieved from the liability they hud under- 
 taken by the issue of a guarantee policy to the plaintitls. The 
 circumstances on which the claim was foundeil were these : — 
 
 An employee ot the Grand Trunk Railway left a large sum 
 of money in two bags in his room, the door of which was in- 
 securely locked, while he went to lunch, without availing himsclt 
 of the means of safe-keeping provideil i\>v him, ami on his return 
 from lunch, the most of the money, as the employee alleged, had 
 disappeared. 
 
 The Court of Queen's Bench, contirming the judgment of the 
 Superior Court, was of opinion that, although there was no 
 suspicion or imputation of dishonesty against the employee, the 
 insurance company was liable, as there was negligence sufficient 
 to constitute a breach of the warranty of <liligence and fidelity.- 
 
 In another Canadian case, the naestion of supervision over 
 the books kept by the person assured, and of notice of an impend- 
 ing claim to the company, \\as raised. The facts as submitted to 
 the court were these : — A guarantee policy insuring the honesty of 
 W., an em[)loyee, was granted upon the expn-ss conditions that 
 the answers in tiie application containcil a true statement of tlie 
 manner in which the business was conducted and accounts kept, 
 and that they would be so kept, and that the employers 
 should, immediately upon its becoming known to them, give notice 
 to the guarantors that the employee lunl become guilty ot any 
 crimiiud oflence entailing, or likely to entail, loss to the employcM-s 
 an<l for which a claim was liable to be nunle under the policy. 
 There was a delalcation in W.'s accounts, and the eviileiu;e showed 
 that no proper supervision had l)een exercised over W.'s books, 
 and the guarantors were not notified until a week after the em- 
 plo^'crs ha<l full knowledge of the detUI cation and W. had left 
 the country. 
 
 The Supreme Court of Canada, affirming the judgment of the 
 
 i !: 
 
 ' 14 L. C. J. 1S((. 7 R. L. 57, P. C, 1S75. 
 -•25 L. C. .1. Ui;i, Q. H. ISSO. 
 
696 
 
 INSURANCE LAW OF CANADA. 
 
 
 :\.U 
 
 court below, decided that, as the employers had not exercised the 
 etiimlated supervision over W. and had not given immediate 
 notice ot' the defalcation, they were not entitled to recover under 
 the polic}-.' 
 
 Guarantee insurance policies as a rule define the period during 
 which they will, beyond their nominal currency, cover defalcations 
 or other dishonest acts to be guarded against, but, as was to be 
 expected, it has sometimes been found difficult to determine 
 whether certain cases come within these limits or not. Insurance 
 companies have, consequently, been called upon to reimburse 
 employers for defaults committed by their employees either prior 
 to, or after the expiration of the time fixed in the bond for their 
 liability, and the courts have been appealed to to determine with 
 whom the burden of responsibility rested. 
 
 In one Quebec case the evidence showed, that the teller of a 
 bank endorsed on a parcel of bank notes the amount Avhicb it was 
 supposed to contain. It was subsequentlj' discovered, that the 
 parcel was §0,300 short, and it was also ascertained, that a 
 deficiency of the same amount existed in the teller's accounts, and 
 had been during several years skilfully covered up and concealed 
 from the authorities of the bank who had made the usual inspec- 
 tions. 
 
 The court decided, that the guarantee insurance company, 
 which had guaranteed the fidelity of the teller, was liable for the 
 deficiency, but only to the extent which occurred after the contract 
 was made.- 
 
 And in another Quebec case it appeared, that by a condition 
 of the policy it was provided, that the company should make good 
 to the employer such pecuniary loss as might l)e sustained by him 
 by reason of the dishonesty of the employees " committed and 
 
 ' Supreme Court of Caniida, Harbor Corns, ot Montreal v. Guarantee Co. of N. 
 A., 22S.C.R. 542. 
 
 For an American decision on the question of supervision over I)ooks si'u Mec' 
 Sav. Uk. and Trust Co. v. Guar. Co. of N. A, et al., (18 Fed. Rep. (18t).5), 4o!i lici t 
 was said, tliat l)onds of indemnity by fidelity insurance companies av ma 
 
 to ordinary policies of insurance and are governed by same principli 
 t ition. It was held in this case, that a quarterly examination in Rood . 
 was customary for the protection of the bank, was sufficient to satisfv 
 ment of the bond, though it was .->omewhat loose and careless. Also, that 
 versy between the bank and a former cashier about certain commissions, clainu i 
 both by the bank and the cashier, was not a default within the terms of the 
 contract. 
 
 = La Banque Xationale & Lesperance, 4 L. X. 147, S. C. 1881. 
 
 ipre- 
 such as 
 require 
 1 rontr 
 
ft! 
 
 
 LIAblLITY FOR LOSSES, WAIVER OF CONDITIONS, ETC. 
 
 597 
 
 discovered during tlie continuance of this agreement, and within 
 three months from the deatli, dismissal, or retirement of tlie em- 
 ployee." The policy lapsed and a defalcation was discovered four 
 months afterwardrt. 
 
 It was held, hy the Superior Court, that the company was not 
 liable in respect of such defalcation, iiuismueh as it was not dis- 
 covered as well as committed during the contiiuuiuce of the agree- 
 ment. 
 
 The policy also contained a clause, that on the discovery of 
 any fraud or dishonesty on the part of the emitloyee, the employer 
 should immediately give notice to the company. A dctalcation 
 was discovered April 6th,, and the company was not notitied until 
 April 17th, when the employee had left the country. It was held, 
 hy the Court of Queen's Bench, that the employer was entitled to 
 recover under the policy.' 
 
 Several important points touching fraud and dishonesty 
 amounting to embezzlement, and the effect of recovery of part of 
 the money, etc., were decided in an action brought betore the 
 Court of Queen's Bench, Quebec, a few years ago, and which was 
 bfised upon the following facts : — The cashier of a bank removed 
 bundles of notes from the bank premises to his resilience for the 
 purpose of signing them, but it appeared that he brought them all 
 back and subsequently, in his office in the batik, he put a number 
 ot ^5 notes in the bundles, instead of $10 notes, and thus de- 
 frauded the hank of ,^8,140. 
 
 The court held : — 1. In entrusting the notes to the cashier to 
 be signed, there was no negligence on the part of the bank involv- 
 ing a violation of the terms of the contract, and the loss was one 
 caused l)y " fraud and dishonesty amounting to embezzlement" on 
 the part of the employee, and came under ^ho guarantee given bv 
 the policy. 
 
 The same employee, shortly before liis flight from the country, 
 caused his own cheques to the amount of §15,574 to be certified 
 
 ' Q. B., Com. Mut. Bdg. Society of Montreal v. London Guarantee and Accid. 
 Co., M.L.R. -Q.B. 307. 
 
 See also:— Fid. and Cas. Co. v. Consolidated Nat. Bk., 71 Fed. Rep. (ISiHi), 11(5, 
 where the bond was held not to cover a default committed more tiian twelve months 
 prior to its discovery, such discovery having been prevented by falsifications on the 
 part of the employee.— De-Iernette v. Fid. and Cas. Co., 2.5 Ins. L..J. (ISOO), ;U.5, where 
 a renewal was held a separate contract, and the company was declared not liable for 
 thefts committed during the currency of the bond under a previous renewal, but 
 discovered too late to come under the renewal in force. 
 
^!i, 
 
 
 598 
 
 INSURANCE LAW OF CANADA. 
 
 1, 
 i, 
 
 i'; ' 
 
 : ■ M 
 
 i.i'; 
 
 ii" 
 
 ■iWiJ! 
 
 by tlie ledger-keeper of the bank, although he, the cashier, had no 
 funds there. 
 
 It Avas hold : — 2. This act, although, technically speaking, not 
 constituting the crime of embezzlement, was " fraud and dishonesty 
 amounting to embezzlement " on the part of the cashier, and canie 
 nnder the guarantee of the policy. These words in the policy 
 have to be taken in their ordinary or vulgar sense, as otherwise 
 the words "fraud or dishonesty" would l)e without effect. 
 
 3. The fact that the bank recovered a larij-e iiart of the monev 
 taken, did not affect its right to claim under the policy, there being 
 a balance of total loss remaining which exceeded the amount of 
 the policy. 
 
 4. The claim of the bank was not altected by its communi- 
 cations with the employee after his flight, such communications 
 not having had any injurious effect as regards the guarantee com- 
 pany. 
 
 On the 30th May the cashier did not appear at his ofrice, and 
 a number of the cheques certitied by the ledger-koopcr, as above 
 mentioned, were presented and paid, although he had no amount 
 to his credit to check against. On the following day the bank 
 gave notice of the defalcation to the local agent of the guarantee 
 comjtany. 
 
 It was held : — o. The notice was given en tempfi utile, and the 
 bank was not guilty of negligence.' 
 
 The decision in an English case turned upon the question of a 
 clause in the policy regarding the prosecution of a dishonest em- 
 ployee, which clause the insurance I'ompany claimed tt) contain a 
 condition precedent. From the evidence put l)efore the court it 
 appeared, that one F., who was about to employ one M. in a situa- 
 tion of trust and confidence, effected a iiolicy with a guarai tee 
 
 1 London Giiiir. luwl Ace. Co. v. IlocheliiK'i Dank (ISiW), ;t H..J.y., Q.H. ::;«). 
 
 The Anieru'nn Suri'ty Co. v. I'iiiily, 12 Fed. Hep. (ISiMI), 170, wiis ii ciihc where a 
 bank was insured anainst fraud, etc., of its easliier ; the hank suspt'iidt'd payment, 
 and llie cashier conliniied in tlie service ot llie receiver, who afterwards notillcd 
 the company of tlie discovery of dislionesi acts. Kvidence oi' fraudulent acts 
 occurriti(i before tlie date of tlie bond, and for wliicli no claim was made, was lield 
 adnussil)le to show tliat the acts, on whieli llie claim was liased, were intentional 
 and not merely negligent or due to oversight. Prior to the issue of the bond, the 
 president and cashier had conspired to rob the bank, but, nevertheless, acertillcate 
 of the cashier's good character was made by the president, witlioul authority from 
 or k'lowledge of the boanl of directors : -It was held, thai the president's know- 
 ledge of the cashier's dishonesty was not to be imputidto the bank, so as to make 
 it responsible for the misrepresentations eoiitiiiucd in the ccrtillcate. 
 
LIABILITY FOR LOSSES, WAIVER OF CONDITIONS, ETC. 
 
 599 
 
 tho 
 
 of a 
 
 nu- 
 
 in a 
 
 •t it 
 
 itua- 
 
 uM'c a 
 
 IlU'llt, 
 
 itilk'il 
 
 nets 
 
 lu'ld 
 
 [ioiuil 
 
 (1, the 
 
 iliciite 
 
 from 
 
 mow- 
 
 iiiuke 
 
 company to secure himself against fraud by emhozzlement of 
 money by ^L Tiie policy, which was for £1000, declared, that 
 "•subject to the conditions herein contained, which shall l)e eon- 
 <litions precedent tt) the right on the part of the employer to recover 
 under this policy " the company undertook to reimburse any 
 pecuniary loss sustained by the employer from " the fraud or 
 dishonesty of the employed as should amount to embezzlement 
 of money as should be discovered within three months of 
 tlie death, dismissal, or retirement of tlie employed.' The em- 
 ployer was to give a notice of the claim, and proofs were to be 
 given such as the directors for the time being Plight re([uire. 
 Then followed this proviso '• [jrovided that the e.s ; loyer shall, if 
 and when retpiired l)y the company, (but at tlie expense of the 
 company if a conviction be obtained), use all diligence in prosecu- 
 ting the employed to convietion for any fraud or dishonesty (as 
 aforesaid) in eonsccpience of which a claim shall liave iu-en made 
 under this policy and shall at the company's expense give all infor- 
 mation and assistance to enable the company to sue for and obtain 
 reimbursement by the employed or by iiis estate or of any moneys 
 wliich the comjumy shall have become liable to pay." F. claimed 
 under this policv a sum of monev allea-ed to have been lost bv 
 M."s embezzlement. The directors pleaded, that tiiey had rei[uire(l 
 F. to prosecute M., but that F. had not done so. Demurrer, be- 
 cause it did not appear that there was any obligation u[ion F. to 
 prosecute M. or that the non-[ierformance of any sucli obligation 
 was a condition precedent to F.'s right to recover. 
 
 It was held, reversing the judgment of the court lielow, 
 (Lord 8ell)ourne, Ij.C, diss.) tiiat the proviso did constitute a 
 condition precedent and furnisiu'<l a defence to the action.' 
 
 Guarantee insurance business has lately been I'xtetided to 
 protei't debentui'c-liolders against losses they might sutler from 
 their delitor's deliuilt to make iiaynient in due time. This bi'anch 
 of guarantee insurance lieiiig comparatively new, the dt'tails of its 
 working have not yet bt'cn fully estalilishe<l, Imt ilie rei'cnt Eng- 
 lish casi' of Fixldji V. Mexican fnresh)icnt Ci>i')n>r(ilii>)i - indicates some 
 ot' the [irol)lems which tiie courts will have to solve. The deben- 
 tures in that case were to maiureon Xoveinliei- 4. IS',),'), and the 
 policy wiiicli the del)entnre-holder t'lreeted. guaranteed payment 
 
 ' London (iuiir. t'o. v. t'eiirnley. .'i App. ("us, 1)11. 
 
 - Herenvd to in 'J(l I.. N. IsT.- Sop iiNo mipra S !'•"';', us in .snliropilion. 
 
 ill 
 

 600 
 
 INSURANCE LAW OF CANADA. 
 
 ill' 
 
 of the principal moneys, if default was made by the debtors for 
 more than three calendar months after date. The policy also pro- 
 vided by one of the conditions, that the assured was not, without 
 the consent of the guarantor corporation, to assent to any arrange- 
 ment modifying the rights or remedies of the assured under the 
 del)entures. Later on, the company found itself in difficulties and 
 had the trustees for the debenture-holders call a meeting, whereat 
 the debenture-holders, by special resolution, voted to postpone the 
 period for payment for three years. The insured debenture- 
 holder was no party to this proceeding, and he sued the guarantor 
 corporation on the policy. Tlie latter could not, of course, say 
 that the debenture-holder had broken the condition by assenting 
 to a modification of the contract, because he had done notliing, 
 and the position they took up, ingeniously enough, was that there 
 had been no default. The court Avas of opinion that, as between 
 the debenture-holder and the guarantor corporation, the debtors 
 had clearly made default within the terms of the policy, l)ecause 
 they considered, that it was just such contingencies as these, that 
 a guarantee policy was taken out to meet — to insure the debenture- 
 holder getting liis money at the stipulated date. The insurers could 
 not complain ; they got their premiums and the salvage — that is, 
 they were surrogated to all the rights of the debenture-holder, and 
 they must take the burden with the benefit. 
 
 Where by a document, headed " policy of insurance,"' the 
 defendants guaranteed to the plaintiffs, the " assured,'' payment 
 of a deposit with a bank in a colony, if the bank should make de- 
 fault in payment, the bank made default, and subsecpiently a 
 scheme of arrangement was sanctioned by a meeting of creditors 
 and the colonial court. Under a colonial statute the scheme was 
 binding on the plaintift" who, however, did not assent to the 
 scheme. 
 
 It was held, by C. A. (atfirm. Div. Ct.), that the defendants 
 were liable on their contract, notwithstanding the scheme of 
 arrangcTuent. 
 
 Per Lord Ksher, M.R., and Lopes, L. J., that the contract 
 was one of insurance against the default of the bank to pay. 
 Therefore, the defendants were liable to pay, but were entitled to 
 be subrogated to the rights of the plaintitt's under the scheme of 
 arrangement. 
 
LIABILITY FOR LOSSES, WAIVER OF CONDITIONS, ETC. 601 
 
 Per Kaj, L. J., svhetlier the contract was one of insurance or 
 one ot suretyship, the scheme of arrangement operated to discharge 
 the bank under the statute and not by way of accord and satis- 
 faction, and did not defeat the right vested in the plaintiffs under 
 the contract upon default made by the bank.' 
 
 And in Laird v. Securities Ins. Co.,^ the plaintiif having lent 
 money on deposit-receipt to an Australian bank, insured the deposit 
 with defendants, who guaranteed payment of the deposit with in- 
 terest, m case re-payment was not made within a certain time ; the 
 pohcy contained a condition providing for subrogation. Before the 
 deposit tell due, th. bank suspended payment, and a compromise 
 was made transferring the liabilities to a new company. The court 
 decided that the bank made default, and that the plaintiff satisfied 
 the^onditKHi of the policy by offering to transfer the deposit. 
 
 sub^oStio,!: ^'""'^"^^ '"'• ''''■"'"' ^•^- ^'''''' ' «•«• •^- See also su^ra § Sr.i. as to 
 » 32 Scott. Law Report (1895), m. See also supm § 333, as to subrogation. 
 
H jfji;.| '!'■ 
 
 J^ll 
 
 t' 
 
 ClIAPTER XVII. 
 
 1 1 
 
 PROOFS OF LOSS. 
 
 ;<07. UlON'KltAI. REM.VHK.S. 
 :{(iS. NOTICK OF LOSS. 
 
 ;««». I'koofs ok I.O^S. 
 
 ;nO. StlKI'IClKNCV AND IXSUFl'l- 
 CIENt'Y OF I'HOOFH. 
 
 371. NoX-l)KI.IVKHV OF PROOFS. 
 !!72. MacISTRATF'S rUHTIFU'ATE. 
 
 •iT.l NOTICK AM) PROOFS 1!V THIRD 
 
 p a rti ks inter est el). 
 374. Time for payment of loss. 
 37.'). Waiver of proofs of loss. 
 37(i. Mistakes in proofs— waiver 
 
 of DEFEC'IS and of INKI'FFICIENC'Y. 
 
 367- General remarks. — In the in'ocodins; cliaptors of this 
 work wo liavu CMuloavorud to trace the oontract of iiisiiraii(-'0 from 
 its inception. We have considered the various lei!:islative enaet- 
 nients in the light of the judicial decisions interpreting them, and 
 we have followed the subject from its earliest stage, an oral agree- 
 ment to insure, through the various incidents of the completed 
 contract, up to the time when the liability of the insurance cor- 
 ]ioi'ation to make compensation is either established or doclared 
 forfeited. AVe have now to consider what steps are necessary for 
 the assured to take in order to ol)tain the pecuniary l)eneilt which 
 he originally had in view, when he sought to [irotect himsi'lf, in 
 the case of certain emergencies, by taking out a i»olicy of insurance. 
 
 The first duty incumbent upon the assured or the beneficiary, 
 as the case may be, is, of course, to give notice to the insurer that 
 a claim is to be made, and then to furnish such proofs as will be 
 necessary to substantiate the claim and enable the [larties to arrive 
 at the amount to be paid. In order to avoid anv risk of for- 
 feiture, the <'laimant nuist fulfil these obligations within a certain 
 time and observe certain fornuilities, as laid down in the written 
 agreenu:'nt or prescribed liy legislation, unless he be, under certain 
 circumstaiu'os, exempt theri'from. It is but natural that this piirt 
 of tlie insurance contract has, no less than the preceding stages, 
 furnished ample food for litigation. Tlu' assured, apart from cases 
 of attempted I'raud, has in nuuiy instances, owing to ignorance or 
 carelessness, failed to conform to tin' rules, while in otlu'r cases lie 
 
^9 
 
 PROOFS OF LOSS. 
 
 603 
 
 ill be 
 
 irrive 
 
 ' for- 
 
 rtaiii 
 
 rittcn 
 
 rtiiin 
 
 part 
 
 lilgOS, 
 
 rasc'rt 
 
 I'l' or 
 
 »^i.s lio 
 
 liaa been, without any fault on liis part, placed in sucli a position 
 as to be unable to comply with all the conditions required ; and 
 such non-compliance has frequently given a company legal ground 
 for resisting payment where they could not otherwise have done 
 80, although perhaps in all fairness entitled to avail themselves ot 
 a breach of the contract by the assured. 
 
 368. Notice of loss — The law in Quebec is, that notice must 
 be given within reasonable time, or as stipulated in the policy, 
 unless such stipulation be waived, or unless it is impossible for the 
 assured to give notice or make the preliminary proofs within the 
 delay spcciiied, in which case he may take reasoiudtle time.' 
 
 In Ontario, Manitoba and Britisli Columbia, where, by reason 
 of necossit}-, accident or mistake, the condition as to proof has not 
 been strictly complied with, or where, after a statement of proof of 
 loss has been given in good faith, the comjtany objects to the loss 
 on other grounds than for imperfect compliance with the condition, 
 or docs not within a reasonable time object, giving particulars of 
 the defects, tlu'y will not be allowed to plead the non-compliaufc 
 as a discharge of their liability ; and the court has the power to 
 declare such a I'orfeiture iiKHpiitable, in any case, and may refuse 
 to allow it.-' 
 
 It would a[>pear that this provision is inteiuK'd to apply to 
 both the time of delivery and the i'jsutiiciency of the proofs of 
 
 loss. 
 
 In the United States it is held, that a failure to give notice 
 within the tiim- rec[uircd, stands upon a dittercnt ground fi'oni a 
 tailure to give the notict^ in due form. The latter defect may be 
 remediiid by a new and more accurate form, but tlie former, if 
 insisted n\n)\\ by the in-^in'cr, is ii'i'emediable. It may, indci'd, be 
 waived, l)ut it would seem reasonaide to require aditl'erent kind o|' 
 evidenci' from that which ought to be satisfactory in casi-s ol' a 
 mere defect in t'orm. The silence of the insurers upon a mere 
 defect of t'orm miglit lie very injurious to the insiii'ed. since, if the 
 delect weri' poinli'd out to liini. he might at once supply llu' 
 
 " CC.L.C. 'MIH. .Scott V. I'lKinix A.ss. Co., St. Hop. I.".L', :(.■).-. ; Dill v. t^iK'licc Ass. 
 Co., IHuv. ll:i; Dliick V. Niilional Ins. Co., I'l L.C..I.7C> g.K. in/rit. Mny l(i."i. 
 St'c (iiicriii V. MilMt•lu•^tl'l• I'"ii(' Ins. (.'o. infra, luiil i)up\il-. v. N'oitli Hiit. A. .Mere. 
 IiiH. Co., .Superior Ciiuil, .Monlri-al, (Itli M;iy, Ihtt". not yot ri'porlcd. 
 
 •ilKtN'icc. ;tll(l)>, M. 171 i{,.S.M. IS!), c.^'.t, s. 2.-U. C. Ins. I'olify Act ISIU, c. U', 
 s. \i. 
 
 ' Uol)ins V. Vlc:lorlii Ins. Co.. ti AH. l:i7(!SSl), infrd. 
 
604 
 
 INSURAXCE LAW OF CANADA. 
 
 (letic'iency and save himselt' from loss.' It will thus be seen, that 
 United States pret-edents on questions of notice of loss are hardly 
 in all instances applicable to Canadian cases.-' 
 
 The provision in a policy that no asfent has power to waive 
 ail}' of its conditions, has been held in Missouri not to refer to a 
 stipulation, printed on the back of the policy, requiring prompt 
 nf)tice of loss, such a provision only affecting matters prior to the 
 loss.' The Iowa Supreme Court has held, that to establish a 
 waiver of the conditions of a policy, as to notice and statement of 
 loss, by the acts of the company's soliciting agent or adjuster, his 
 authority to make a Avaiver must be proved.' 
 
 The Civil Code of Lower Canada assimilates notice of loss to 
 proofs of loss, and it would seem that they should be assimilated 
 under the Ontario, Manitoba & British Columbia enactments also.' 
 
 Where a policy requires notice of loss to be given " forthwith " 
 by the insured to the insurer'"' and is silent as to the mode of ser- 
 vice, the insurer will be presumed to have received the notice, if it 
 be proved to have been properly a<l<lressed and posted, since the 
 post is the natural and obvious mode of communication in matters 
 
 1 May, 4(U ; and see Wliyte v. Western Ins. Co.. 22 L.C.J. 213, in Privy Council, 
 i)i/ra. 
 
 - Tile following decisions of United States courts, iis regards notice of loss, may 
 prove of interest :- 
 
 In Coll'niiin v. Xiiigara F. Ins. Co., .57 Mo. App., 017, it was said, tliat written 
 notice of loss, required in a policy of insurance, is waived where verl)al notice is 
 given tlie local agent, who coininunicntes it to the company, which acts upon it 
 without complaint.— And in Union Ins. Co. of Calif, v. Barwick (ISSta), .")! X. W. Rep. 
 510, the condition as to immediate notice after the Are was lield complied witli by an 
 insi)ection of the goods on the i)art of an adjuster. See infrn S •)7.5, note. 
 
 Giving notice and furnishing proofs of loss, etc., is a condition precedent, and 
 satisfactory proof of compliance witli tliat provision a pre-requisite to a right of 
 recovery, unless waived: and where, as in Central City Ins. Co. v. Oates (1H«I), 86 
 Ala. ny>S, the policy required notice to be given in the city of the i)rincipal place of 
 bu.siness of the company, the deposit of a notice by the assured in the post oflice of 
 the place of loss, ami which was never received by tlie instirer, is not a compliance 
 with the condition. 
 
 " Forthwith" in clauses on notice of loss means " without unnecessary delay, or 
 with reasonable <liligencc, under the circumstances of the particular case" ; Heach 
 1201.— In Trask v. Ins. Co., 75 Pa. St. 108, ami Edwards v. Ins. Co., 75 Pa. St. ;178, 
 where the policy required the notice to be given "forthwith," it was lield, that 
 une.vcused delays of eleven and eighteen days respectively were unreasonable, and 
 should be so pronounced as matter of law.- See also Carpenter v. Gernian-Anicr. Ins. 
 Co. (1S02), 1;15 N. Y. 29S, referred to infrn S Wl, note. 
 
 ■I Loeb V. Am. Central Ins. Co. (1880^ i«' Mo. 50. 
 
 •> Harre v. Council nUiirs Ins. Co. (1881), 70 low.i fiOO. 
 
 " Robins v. Victoria Ins. Co., (! A.R. 127, siiprn, and referred to infra S ;!7I, 
 
 8 m Vic, c. 3(! (0>. s. 1(!S, ss. i;» (a). 
 
TrmTTi 
 
 f' 
 
 I'UUOFS OF LOSS. 
 
 605 
 
 of business, especially when insurcMl and insurer reside in dirterent 
 places ; and tlie same rule a[>plies to proofs.' 
 
 And in a ease of guarantee insurance, where the condition of 
 a guarantee bond reiiuired the employer to give notice immediately 
 to the guarantor ot any criminal oftencc of the employee, entailing 
 loss for which a claim was liable to be made under the bond, aiid 
 the employer, althcMigh aware of a defalcation on the 25th, did not 
 give notice to the guarantor until the 27th, after the employee had 
 tied from the country, tiie bond was held to be forfeited. - 
 
 Similarly, it has been decided that an employer, who holds a 
 guarantee from an insurance com[iany on his em})loyeo, is bound to 
 inform the company o\' irregularity in the employee's account, as 
 stipulated in the polic}-. 
 
 A delay of twenty days before giving notice of a loss by tire 
 is too long, where it is required to be given " forthwith.'' ' 
 
 But notice of loss and particulars ol' it may be waived by the 
 insurer expressly or by conduct in dealing with the assured.'' 
 
 369. Proofs of loss. — Proofs of loss must be made by the 
 assured, although the loss be payable to a third party, but they 
 may be made by the agent of the assured in case of the absence or 
 inability of the assured to make tliem himself.'"' 
 
 The courts have generally been dis[)osed to look uiion condi- 
 tions with regard to the forfeiture of claim under a policy of insur- 
 ance, unless properly attested claims are fyled within a certain 
 iixed delay, in a liberal spirit, and they have not always insisted 
 that the proof should be furnished within the delay, especially 
 when this delay is a short one of, say, fifteen days.'' 
 
 And it has also been held in Quebec, when a company received 
 the information given by the assured as to his loss without objec- 
 tion, and afterwards furnished him with a printed Ibrm on which 
 
 ' Porter's Laws of Ins. 1S(I, and sec Ontario Ins. ("orpiis Act, lS!l:i ; ,"):{ \'ic., f. .'19(0), 
 s. i:! ; m Vic, c. :«'« (0>, s. ins, ss. lO ; and B.C. Ins, Policy Act, IHilH, c. iL', s. 2:1, & H.S.M. 
 1S!)1, e. .-)!), Stat. ion. lit it l':t. 
 
 - Molsons Pank v. tlnarantee Co. of N. A, .M. L. K. t S.C MTii, and sue Protest. 
 Pd. of School Coin'rs & (Inai'antee Co., :U L.C .1. )>')l. 
 
 ■' Coni'l .M\it. Pdfr Soc. of Montreal & the London tiuaranlee & Ace. Co., 21 
 PL. •>">. 
 
 ■* (iucrin V. Manchester Fire & Life Ins. Co. infra, followed in O'lleurn v. Calcd. 
 Ins. Co., infra, S '<i^i). 
 
 •' Lanipkin v. Ontario M, & P. Ins. Co., 12 I'.C.R. 584. 
 
 »m Vic., c. ;«) (O.), s. Ids, ss. 12 and 1). 
 
 ■ Plack V. National Ins. Co., y.P., 21 L. C. J. 70 ; H L.N. 29 ; and .see Can. Mut . 
 Fire Ins. Co. v. Donovan, 2 L. X. 229, infrii § 37.J, note. 
 
 II 
 
mm 
 
 606 
 
 INSURANCE LAW OF CANADA. 
 
 to make his claim, that tliey had waived their right to contend, 
 that the plaintiff had tailed to furnish proof of his loss to the satis- 
 faction of the company, within thirty days from the occurrence of 
 the fire.' 
 
 In this case the decision of the Privy Council in WIvjfe v. 
 Western Ass. Co.- was commented on, and Johnson, J., stated, 
 that the doctrine laid down in that ease never extended to saying 
 there could be no waiver, but merely applied the stipulation where 
 there was nothing to modify it. ' ' 
 
 But, where a condition ot a fire polic}^ requires tlie making 
 and furnishing of proofs of loss within a specified time, and declares 
 that, until they are furnished, the loss shall not be pa^'able, the 
 delay is a material part of the condition, and, consequently, in the 
 absence of a waiver, the assured cannot recover, unless he sends in 
 the proper proofs within the prescribed delay. The mere silence 
 of the comjiany with regard to proofs sent in, after the delay pre- 
 scribed by the conditions of the policy, does not amount to a 
 waiver of the condition by the company, nor does the declaration 
 by the company at the time, that it did not consider itself lialde, 
 amount to a waiver by the company of the benefit of the con- 
 dition.' 
 
 And where one of the conditions in an Ontario policy of 
 insurance against fire on ice and packing, contained in an ice 
 house, situated in the State of Wisconsin, provided, that the proofs 
 of loss should be delivereil "• as soon after the loss as possible," 
 the evidence showed that the fire occurred on the 17th September, 
 1881, and the proofs of loss were not delivered until the middle of 
 May, 1882, when they were objected to and returned to the 
 insured, who redelivered them in the same state in the month of 
 July following ; and the only reason given for not delivering them 
 sooner was, that it was not convenient to do so : — It was held, 
 that the condition cited was not (/omplied witli.' 
 
 The question of the procurement of proofs of loss being a 
 
 
 > Kelly V. Hoch. Mat. Fire Iiis. Co., :! L. N. Ki, -M L. C. J. *JS, and see Dill v. 
 Quebee Ins. Co., 1 H. I-. IV.i. 
 
 ■= 22 I,. C. .1. 215 iiifm. 
 
 ' Kelly V. Hoch. Mut. Fire Ins. Co., '.i L. N. (W, auprn. 
 
 ■• Privy Council, Whyte v. Western Ins., 22 L. C. .1. 21.5, 7 R. L. lOli (not reported 
 in P. C. App. Ciis.), Imt see comment on this decision, Johnson, J., in Kelly v. Hoch. 
 5Iut. Fire Ins. Co., 3 L. X. (ill, suprn. 
 
 '< Cameron v. Can. Fire & Mar. Ins. Co., O. R. 392, infni § 370. 
 
PROOFS OF LOSS. 
 
 607 
 
 condition precedent came up in the recent English case of Iliddle 
 et al. V. National F. tC- 31. Ins. Co. of New Zealand,^ where it 
 appeared, that the policy required the insured, within lifteen days 
 after the tire, to deliver to the company' an account in detail of 
 such loss or damage as " the nature and circumstances of the case 
 will admit." After the fire, the insured suhmitted a statement of 
 loss, which the company refused to accept as sufficient compliance 
 with said condition. It appeared from the evidence, that the 
 insured could have complied with the condition within the fifteen 
 days. At the close of the plaintiffs' case, the judge nonsuited 
 them. It was considered, that plaintiffs were rightly nonsuited, 
 since, even if the question of compliance were for the jury, a ver- 
 dict could not have been reasonably given in their favor. 
 
 But in another English case,'- notice of accident was held not 
 a condition precedent. Here, the evidence showed that the policy 
 covered death caused by accident, happening within the United 
 Kingdom, and was made subject to a condition that, in case of 
 fatal accident, notice thereof must be given to the insurers within 
 seven days. The assured was accidentally drowned in Jersey, 
 hut it was impossible to give notice within seven days. In an 
 action on the policy, the court decided, that the accident hap- 
 pened within the United Kingdom, and that notice, as said above, 
 was not a condition precedent to the right to recover, and that the 
 insurers were liable. 
 
 370. Sufficiency and insufficiency of proofs.— Wlierr it is 
 impossible for the assured to give a detailed statement under oath 
 of his loss, supported by books and vouchers, owing to tbeir being 
 burnt, the condition of the policy requiring such statement will 
 
 1 (Eiiji. Privy Council Ajip.), Appual Cases, " 'I'lio I, aw Keports" (1896>, 372. 
 
 - Stom'ham v. Opoan, Railway & Gen. Ace. Ins. Co., 1!) Q. H. I). 2H". 
 
 For American decisions as to tlie furnisliinu; of jiroofs of loss bcinu a coiKlil inn 
 l)n!ci'(lent, see Sabers v. llawUeye Ins. Co., (iit N. W. Hop. (ISll.'ii, 1!)| ; aM<l Shii|)irc v. 
 Sr. Paul V. 6t M. Ins. Co., ii,i X. \V. K.?p. (IS'.ri). (il L— Sor^cnt v. Liln. & I, pi. & Clolio 
 Ins. Co., 82 N. Y. .Suppl. (IS!),")), ,5ilt : (iii .\. Y. Sf. Uop. (ISir,), Kt'.-Iiruoi' v. Ccrnian 
 Sav. & Loan Soi-. (1S!«), :!l Pac. Hep. Iti. .McCulloch v. IMnrnix Ins. Co. of Hartrnrd 
 (mm, 21 .>^. W. Hep. 207. 
 
 Tn McCarvel v. I'lioni.x Ins. Co. of Brooklyn, 2.T Ins. L. .1. (l.siHi), :(!)!), the jmlicy 
 pnivi<le(l, as a condition precedent, that proofs of loss be fiirnished within sl.\ty 
 days, but the court held that, by inixinfi >ip indiscrlininati'ly tliinns unconditionally 
 reciuired, and others which were not required unless demanded, the companj' 
 waived the sixty-day limit, and ^ave an extension to a reasonable time in whicli to 
 comi)ly with all the demands made together. 
 
■ limit f 
 
 I 
 
 608 
 
 INSURANCE LAW OF CANADA. 
 
 be satisfied by bis giving affidavit as to the vahie ot'tbe property 
 lost.' 
 
 In an action on a polic}' of insnrance against tire on a stock of 
 goods, M., tbe local agent, tbrougb wbom tbc insurance Avas 
 effected, stated tbat he had, at the time, examined the premises 
 and considered, from tlie size of the store, the appearance of the 
 goods, and the stock l)Ook, there were goods to the amount insured. 
 The lire occurred on the 20th October and all the goods on the 
 premises were destroyed. On the same day the defendants' insjiector 
 came and saw plaintilf, who furnished him with a statement showing 
 the amount of the stock in May — the insurance having been effect- 
 ed in June — the sales since then, and the invoices of goods purchas- 
 ed up to tlie fire. The inspector gave plaintiff a form from which he 
 was to, and did fill in, the proof papers sent him by the ins[>ector, and 
 which plaintiff enclosed to defendants in a letter of 27tli October, 
 informing them that, if not correct, he wo>dd have same made out to 
 their satisfaction. On 31st October, defendants' rei>liod, that they 
 thought the loss in place of §13,005, the amount claimed by plain- 
 tiff", should be $11,734.90; adding: "This sum, we consider, ni t 
 only reasonable, but liberal, and whicli we are liable for, without 
 any prejudice to, or waiver of, anj^ condition of the polic\'." The 
 jilaintiff' replied, that his claim was a just and honest one, but, if 
 settled at once, he would acce[»t a reduction of §400. The defend- 
 ants then wrote, that their's was a fair and liberal offer, and 
 pointed out what they considered objecti<jnable items in plaintiffs 
 claim. The plaintiff then made and sent to defendants a statutory 
 declaration of loss according to the above form. The defendants 
 then replied, stating that, Avitliout admitting, but denying any 
 liability, tliey drew attention to alleged informalities in not specify- 
 ing the items of loss in detail, and in not giving a detailed state- 
 ment of the claim. The plaintiff then furnished them with a 
 statutory declaration, giving such detailed statement. Nothing 
 further was done, and action was brought. The defe?idants set up 
 a number of defences, amongst whicli was arson, and imputing 
 fraud and misconduct to the plaintiff, but no evidence was given 
 in support of them : — The court decided, that there was sufficient 
 evidence of the amount of goods at the time the insurance was 
 effected ; that the goods insured were tliose destroyed by the fire ; 
 
 1 Perry V. Niagara Dist. Mut, Fire Ins;. Co., 21 L.C.J. 257. 
 
I'llUUFS OF LOSS. 
 
 600 
 
 up 
 
 and that uiuler Bootioii 2 of the Firo Iiisnraiu'e Policy Act, R.S.O. 
 (1877), c. 162, no olijection couhl 1)0 raised to the proofs ; and in 
 any event the proofs wore snfiicient : — Ilehl, also, that the letter of 
 Slst October was properly admitted in evidence, for it was not 
 Btated to bo without prejudice generally, nor was any objection 
 taken to its reception at the trial, the defendants by the letter 
 merely claiming that it should not be deemed a waiver of any con- 
 dition of the policy, and both parties acted on this view.' 
 
 Delivery of proof of loss and particulars of loss to the local 
 agent is sufticient delivery.- 
 
 In Nixoi) V. Queen Ins. Co.,' where the policy required the 
 assured to forthwith give notice to tiie company '■ and within 14 
 days thereafter deliver in as particular an account ot the loss or 
 damage, and of the value of tlie property, destroyed or damaged, 
 immediately before the haiiiiening of the fire, as the nature and 
 
 circumstances of the case will admit of and until such evidence 
 
 is produced the amount of such loss, or any part thereof, sliall not 
 be payable or recoverable," it appeared that the only statement 
 delivered by plaintili was to the effect, that a part of the property 
 consisted of general merchandise, and that said merchandise con- 
 sisted principally of dry goods, boots, shoes, groceries and hard- 
 ware, the value of which was estimated to be between $3000 and 
 S4000. 
 
 The court held, setting aside judgment for plaintiff and enter- 
 ing judgment for defendant with costs, that the account delivered 
 was not in compliance with the condition which contemplated an 
 account of the different items. 
 
 Where by the policy it was provided, that the loss or damage 
 should be " estimated according to the actual value of the property 
 insured, that is, what it could have been actually' sold tor in cash 
 at the time of the loss," and the condition of the polic}- re(|uired, 
 tliat the affidavit or loss should state the actual cash value of the 
 property, it appeared that in the printed proofs of loss, whicli were 
 used, the words " actual cash value "' were struck out and a state- 
 ment substituted, giving the cost ot the proi)orly in 1880, a year 
 
 > Hartney v. Nortli Britisli & Merc. Ins. Co., 1.! O.U. 5S1. 
 
 - Peppit V. North Brit. & Merc, 1 Kuss &Gel(l (Nov. SO L'l'J ; German Ins. Co. v. 
 "Ward, !K) 111. .-),50. 
 
 ••2.5 Nova Scotia Law Rep. HI", aflirnieil in Supreme Court of Canada, 20 Feb., 
 1894. 
 
 39 
 
1 i 
 
 610 
 
 INSURANCE LAW OF CANADA. 
 
 previous to tlio insurance boine; ottocted. It was hold, that this 
 ■was not a (.'oniplianco with tliL' policy and conditions, and that, 
 tlioretbre, tlierc could be no recovery on the policy.' 
 
 It has 1)0011 doclarod in the United States, that the proof re- 
 quired is such reasonable proof as will <j;ivo assurance that the 
 event has happonod. an<l such as will satisfy the rules of ovideiico. 
 AVhat is due proof <'aiinot be determined arliitnirily l)y the com- 
 pany, as tor instance, that a physician's certificate shall be deemed 
 an essential part of the proof.- 
 
 The information is the main thiuif to be regarded in proofs 
 of loss, the form is not important.^ 
 
 ' CaiiHTon V. (nil. Firi' and ^Iiir. Ins. Co., (i O.H. liiL', mtprfi ^^ Ulill. 
 
 - Taylor v. -Ktnii Life Iiis. Co., Hi (iray t:il ; 0"Kcilly v. Ciuimliiin Mul. Life Inn. 
 Co.,(iOX. Y. Klit. 
 
 2 Irwin V. SpriiiKl'x'ld etc. Ins. Co., 21 Mo. Apji. 14.'). 
 
 On tlie sulijeet of sufliciency of proofs of loss, .see al.so :— .Moyer v. Sun Ins, OIHce 
 of Lrtn, '.m Atl. Hep. (IH!)(i). 221, v.-liere the company relii^d iijion a i)lea of failure to 
 furnish proofs of loss within the time limited hy the policy, notice of the tire had 
 been nivcii immedi;itely. .md certain information later on. with a rci|iicst to he in- 
 formed if anything further was required. It was held, that, in I he ahsence of any 
 indication to the contrary, the details furnished were snilicient to fl.\ the company's 
 liability. See also infra S H72, note, p. (ib"). 
 
 The contention of the comiiany, that proofs were insidheient, was not maintained 
 in Davis v. (Jrand Hapids V. Ins. Co,, lid X. Y. Sujipl. 7!J2 (ISiXi), where the assured 
 could not possibly comply with a re(iuest for a detailed specilleation, as the goods 
 had been totally dotroyed.— But bills hy eai'pentcrs as to the cost of re-building 
 were considered not. sudicieiit jiroofs of loss in Ileusinkveld v. .St. I'aul !■". and M. 
 Ins. Co., M N. W. T{i'p. 7til)(lS0."i) ; anil the same decision was given in Brock v. Des 
 .Moines Ins. Co., M .\. W. Rep. tK"! (IS!).")), the proofs not slniwing origin of lire and 
 cash value of iiroperty, and not having lieeii made by allidavit, as rei|uire(l by the 
 ])olicy and statute. 
 
 Duplicate bills of (?oods, required by the policy, are not a part of the proofs of 
 loss, .Elna Ins. Co. v. McLead etal, 2."i Ins. L. .T. (Mi!) (l,S!)(i). 
 
 See DeWitt v. Agric. Ins. Co. of Wtown. "I X. "S". St. Hep. odfi (l,»^i)(i), as to who 
 is the projier jiarty to make proofs of loss, where the owner of mortgaged i)ropei'ty 
 contracted to sell, the mortg.igee procuring .•m endorsement as to the new ownership, 
 williout tile purcliaser's kiiowledgi!, and the latter obtained additional insurance in 
 another compiiiiy. .\nd ridr Milw. .Mccb. Ins. Co. v. Brown, 14 I'ac. Hep. :i,"i (l,Si)0), 
 on .same subject.— See also Warren cf iil. v. Springfield F. and M. Ins. Co., Ai S.W. 
 Re]). 810 (ISi)!')), as to who may make proofs of loss where policy is jjayable to a third 
 party, or is held as collateral security. 
 
 Proofs of loss may be signed by the administratrix-elect, lire having occurred 
 a few days .after the death of assuri'd, Meyeisun v. Hartford F. Ins. Co., as X.Y. 
 Supiil. 112(lS!i(U. 
 
 In Wright v. Fire Ins. Co. (1892). 12 Mont. 474, the company's adjusting agent 
 examined 1 he assured \iiider oath, entering into details as to all items and values 
 thereof. These examinations were subscribed to by the assured and the agent 
 referred to them as " proofs of loss," stating that nothing more was required. The 
 court held, that these papers were accepted as suflicient proofs of loss, even though 
 they were not exactly like the ones called for by the policy.— Similai'ly, it was dc- 
 
'■ Ml 
 
 PROOFS OF LOSS. 
 
 611 
 
 371. Non-delivery of proofs. — A very recent decision at Mon- 
 treal is tliiit of Frevost es (/uaL v. ScotUsh Union (0 Xalional Itis. ('»} 
 Tlio action was brought to recover the amount alleifed to he (hie 
 under two insurance policies, by the curator, to Cleophas Rivet. 
 The plea set up. that plaintifl had not conformed to the conditiona 
 ot the iiolicies and had not rnadi^ proofs of loss, and, further, that 
 the action was prescribed. The court held, in the tirst [ilace, that 
 the ground of defence set up by defendant, to the effect that the 
 premises of Rivet wore described in the two policies as 842 Albert 
 street, while in the declaration they were described as Xo. !S4G 
 Albert street, was not well founded, inasmuch as the nund)t'i-ing ot 
 the street was changed after the issue of the policies. The other 
 grounds of defence were more serious. IJy one of the conditions 
 ot the policy it was provided, that, if a tire occurred, the insured 
 was bound to give notice of loss in writing to the company, and to 
 furnish proofs. In the jiresent case, neither Rivet, the insured, 
 nor the plaintitl, had lurnished any such proof under oath to the 
 compau}' defendant, as was required by this condition. Rivet and 
 representatives were not released from the obligation ot furnisliing 
 such proof by reason ot the insurance company and Rivet having 
 entered into bonds of appraisement, as referred to in the declaration. 
 
 ciiled, inf''rtili(i, \n Wel^h v. I.oiulon Ass. Cori). (lS!):i), ].")] Pa, St. t'*)~, tliiit llio fact, 
 tliilt nil ail.ju.stLT of llio t'oinpaiiy was at the pliui' of tlie Ids.s, a wei'li after the lire, 
 under instructions of tlie conipanv. was conehisive evidence of notice to tiietn. The 
 proofs in tliis case were conceded to lie inlornial, l)ut it was held, tliat tlie circum- 
 stances, under whicli Ihe.v were ilelivered, put ujion the insurers tlie duly of notify- 
 in;; the assured of tlieir ob.jections, if the want of form was to be relied upon, and 
 the failnie to K'^ti such notice was evidence for the .jury of a waiver. Keference was 
 also made to the Act of.Iune -21. l.ssa, S 1 d'. I.. Pa. lS,s:{-ltui, accoidin.t,' to which 
 notice anil jnoof may lie di-]i\cred to the coniiiany at its ^^enend ollice, nr to the 
 agent who countersijrned the jiolicy, and which also fi.xes the time therefor. 
 
 In McXally v. Phieid.v Ins. Co. (1S1«), KIT N. V. :«), a statement that the fire did 
 not originate liy any act, etc., of the assured, etc., was held surticient, as they, in 
 fact, had no knowleds-'e or iiifornnit ion whatever as to the oritiin and circutiistances 
 of the lire. 
 
 l^roofs of loss under a lidelity insurance bond are mercamilc (locumcnts and arc 
 only roiptircd to contain a brief and general statement of the facts with substantial 
 accuracy, truthfully iiiformini,' the insurei- how the loss occiuied, and not tending, 
 either by what they contain or what they omit, to mislead the insurer. It has, 
 therefore, been held in American .Surety Uo. v. I'aiily, 72 Fed. Itep. (isihl), IS-t, that 
 proofs, setting forth with reasonable plainness, that certain sums of money had been 
 taken from the bank by means of acts of the cashier, described in such jiroofs, were 
 sullicient. 
 
 Montreal, :! May, 18i)7, Court of Review ; not yet reported.— If no proofs ot loss 
 are furnished, the liability of the i isurer does not attach, unless proof has been 
 waived : Leadbitter v. Aetna Ins. Co , 13 M.E. 2t).) ; Davis v. Davis, 4i) M.K. 282.— 
 See also Dupuis v. N. B. & M. Ins. Co., siqira § 3(!8, n. 1. 
 
C,V2 
 
 INSIJKANCK LAW OK CANADA. 
 
 The court luild fiirdicr, tliiit pliiiiitifrs cxciiso, f liiil Rivd and liis 
 i'f|ir(;H('iitiif ives w(>rii uiialilc lo I'liniisli siicli proofs of loss in con- 
 He([U(!n('(' ol' the loss ol IIki polii.'ics, (tould not avail plaintill, inas- 
 iiincli as it, \vas not allc^'cd or proved that tin; policies werct lost, 
 prior to the lii'c oi- within (iU days tlicn^al'tcir. On the contrary, it 
 sipix'ared that Rivet luid the p(»lici(!H in his [lossessioii at a dat(! 
 Boven months after tlic; fire. 'I'ho action was, tlior(!(ore, dismissed. 
 
 Under certain eircnmslances, however, the assiii'ed will Ik; 
 relieved from tiu! (;onse(piences ol non-delivc-i-y and insiiHiciency ol 
 prooli^. 'I'he following is a case in point — 
 
 " Upon a policy, issned liy a nintiial coini>any, the statutory 
 conditions were emlorsed with variations, one of which was (l)ein<i; 
 the same as section nti of the Mntual Act, R. H. ( >. (1S77) e. 101), 
 that the proofs, declarations, etc., called for hy tlii! Htatntory con- 
 ditions, sliould Ix' Inrnished to th(! company in writiiifj^ within 
 thirty days aft(M' the loss. The loss oeciirre(l on tin; 2nd <)ctoIier, 
 1878, and on the r)lli the plaiiitill nolilied the defendants liy letter. 
 A few days after, the plaiiitill saw one S., an ai:;cnt ol the defend- 
 ants lor ohtainint;: appli<'ations, t lioni^h not for collectint;' claim-, 
 l)tit who liad acted for plaintifl' in settling; a previous loss with 
 (h'fendants, and asked him to act for him on this occasion and do 
 what was |)i'opcr, which S. |iromiscd to do. 
 
 On 17th Oclolier, t h(! ileleiKhuits' presichdit came u[> and saw 
 plaintill, who infoi'med him id' the loss and of all the ciriMimstances 
 relating thereto, ami plaintill' was told hy him, in answer to his 
 enquiry, that nothinti; further ihhmI he done. Tim plaintilf, in con- 
 se<iuence, did nothini;'; hut suhsei(Ucntl3', on heariui^ that fh(( 
 (h'fendants disputed the claim, somct correspoiKhmee to(d<: place, 
 which resulted in the plaintill' employint^ a solicitor, and proofs 
 were theri'Upon put in, hut aftei' the lapse of thirty days, it was 
 held, alii rm in j^ the judu:nient of the (loiirt of Common I'leas,' 
 Burton, .1., dissent in.u;, that section of R. S. (). (1877) c ML', 
 mlicwinuj the iuHureil under certain circumstaiKH's from forfeiture 
 for non-delivery ol tlu^ i»ro(d's of claim applii's to mutual insurance 
 com|ianies, ami to the time of delivc^ry as well as to insullicicney in 
 the proofs. It was also held, I'urton, .1., disse?ltinL,^ under tlm 
 facts set out in the repiuM, that the omission to deliver t he proofs 
 in proper time arose from avcideni or mistake, within the meanin;^ 
 
 :il C. I'. ")(i'j. 
 
rrri 
 
 I'llOOFS 01' I,OSS. 
 
 til 3 
 
 ot tliat cliiiisc. llciiiiirks wci'c tiiailc an to tin- const nictii)ii siikI 
 etk'rt oi tliis rlutiso and tin- extent of tln^ (liseretioii s^iven hy it to 
 the eoiirl or jndtfe.' 
 
 372. Magistrate's cortificato. — It is cnslornary to append to 
 pi'((li]niiiai'y proofs, as a necessary part fheri'i)!', the certiiicate or 
 j'ov//, of ii mai^istratc; or nofury puhlic;, r(^sidill^f "nearest to," or 
 "most contii;;iioiis to," tln^ hxiality of the (ire, and h(Mice supposed 
 to !<no\v th(' facts set, forth in the proofs, and statini,^ liis helief as 
 to tile lionesty oi tlie claimant, and iiis opinion as to tlie amount 
 of th(! loss sustaineil l)y liim, which may or may not lie tlie amount 
 miiiied in thi' jiroof's. Such mai^'istratc must liasc no peivonal 
 interest in the pi'opei-ty or the claim, nor he rclali'il to the insui'ed. 
 'I'liis certificate dates from the earliest ijays ot lire Insurance oiil- 
 Hi(h' of cities, udierc the '•nearest minister,"" or. in his ahseiice, a 
 "churchwarden," ov " repulahle neiii-hhor," \\a- to make ihe cer- 
 tilicate. 
 
 When insisted u|ioii liy the ciunpany, its production is a ccm- 
 dilion precedent to recoN'cry under the policy. - 
 
 In an appeal heiorethi' Supreme Court of (!anada, the evi- 
 dence showeil tliat the polii'V (d" insuriiice at^ainst fire reipiireij, 
 ii>ler (iliii, such a cerliiicate, undci' the hands of two iiiai^istraleH 
 most coiitiii'uons to the place (d' iii'e ; ind stipulated, fui'lhcr, that 
 iio one oi I he iorcs^oiiiL;" conditions, etc., ,->hall he deemed Id have 
 hiM'U waived, e.t(\, iinU'ss liic waivei' lie clearly e.\presse(| in writ- 
 iii<r l)y (Midorsemi'ut upon the policy, siiiiied hy the aL'"ents of tlui 
 company at Halifax, X.S. 'I'ln- insui'ed prcmi-^es haviiiL;' heen 
 desti'oyed hy lire, the assiireij applied lo i \vo ma ii'i,-l rales coii- 
 tiiL:;uous to the place of the tire lor the I'l'ipiii'ed ccrtillcalc. whiidi 
 liiey refusecj, and he linally ohiained smdi certilic;iles I'lom two 
 magistrates re>iiliiiH- at a di,-tancc from ^uch place. The proofs of 
 loss, accompanied hy the cerliticatc. were sent lo I he aii'eiit, who 
 suhseipieiit ly made an oilci' of payiueiil tocoinpromi-e tln'claim, 
 Htaliiie' that, if such oiler was not accepted, | hi^ .laim would hu 
 contested. The aLCeiil. on a suh-eipieni occa.-iiui, told tln^ assiii'ed, 
 (hilt he ohjecled to tln^ claim, as he "did not think it was a rt<iiltirc! 
 loss." 
 
 The court held, adirminc' the jud'jinent of the courl helnw, 
 
 ' Itoltlns y. X'ii'lunii Mm . I''iic Ins. ( 'e., (i A , 11. \-l. sK/irn ^ IKlS. 
 '•^ (Iriswolil, :iSil ; mill sec (Kl \ir,, r. ;)('. (O.I, H. KiS, ss. l:(i'. 
 
614 
 
 INSURANCE LAW OF CANADA. 
 
 that the non-production of the certificate, required l)y the above 
 condition, prevented the assured from recoveriii<i!; on tlu' policy. 
 And also, that, even if such conditions could be waived without 
 endorsement on the policy, the acts of the agent did not amount 
 to a waiver. 
 
 Sernble, that the condition could not be so waived.' 
 And in another case,'- it was also held, that the procurement 
 of a magistrate's certificate is a condition [yrecedent, ami if a certi- 
 ficate be procured in which a knowledge and belief as to the 
 amount of loss is omitted, it will be insufficient. 
 
 The obligation of the assured to procure a magistrate's ceiii 
 fioatc as part of his proofs of loss has very frequently led to differ- 
 ences in the LTnited States. A reference to a numl)er ot cases will 
 suffice to show the view which the coui'ts have taken there on 
 this subject.' 
 
 ' Supreim' CoiU't of Caimda, Lonaii v. C'oiniu. I'nioii Ass. Co., Hi S. C. H. 2~. and 
 see K;iciiio v. K(|\iital)li' Ins. Co. of London, (i L. C. .1. S!) infra, and sue stipra S !'--. 
 
 ' Q. 1!., Scott V. I'lin'Mi.K Ass. Co., Stuart's Ik'i). V.VI ; Privy Cotmcil, Stuart's 
 Rep. 'Mi: and sec Uiicine v. K(iuiral>le, (i L. C. .T. H\), sHpni. 
 
 :' In MeNally V. IMnenix Ins. Co. OAY.i), VM X.Y. :iS!», the jmliey ohlified the 
 assured to furnish a magistrate's certificate "if reijuired." Proofs of loss were 
 returned by tlie company, because no sucli certificate luid been procured, which, 
 however, was tinally sent, and suit was brought Ix'fore sixty days from its reception 
 had expired. The court, in dismissiiijj; the com|)iuiy's claim that the action was 
 premature said, that tlie ccrtilicate was not an absohile re(|uiremcnt of (lie policy, 
 nor necessarily a part of the proofs of loss, the assui'cd bcinu; only bound to furnish 
 it " if required." If the demand was made, he could comply with it in a reasonable 
 time and lefore the commencement of the action, usiiifj; due dili.u:ence to procure it, 
 but the fa' t of its not being attached to the iiroofs of loss was no reason for return- 
 infc these papers, which would have been ))erfectly good without the certificate, if 
 the com]iany had failed to call for it. An important |)oint in this case was the long 
 delay, nearly >i year, which elapsed before the ccrtilicate was jirocurcd. The tosti- 
 niony, however, showed, that the ass\n'ed ai)plied to three ma,u;isl rates, I wo of them 
 declining to give the ccrtilicate after keeping the papers for several months. The 
 judge said on this (picstion :— " 1 am no! aware of any provision of law which 
 rcfpiires an ollieci- lo give such a ccrtilicate. It is quile conci'ivable that cases may 
 occtir, where the assured would he unable to i)rocuri' the certillcate, and if he could 
 not, after reasonable diligence, it would be a harsh rule that would dci)rive him of 
 his cause of action for that reason." 
 
 See also Agric. Ins. Co. of Wtown v. Bendller (ISSib, 70 Md. 1(10, for a sindlar 
 case; and Pallrovilch v. Pliienix Ins. Co. of llarlford ilsi):i), (is lluii. MDl, and Urow u 
 V. do. (ISSil), .'^li Hull. :'MU, where the <'ourt dcclarcil, that the provision "should 
 receive a practical, reasonable construction," and as stated by .Nelson, C.l., in 
 Turlcy \. iN'ordi Ainer. Ins. Co., 2."i Wcml. :i7l /■/ .srv/.. "full Iciinl ell'ect should always 
 lie given to il foi' the |iurpose of guarding the company against fraud or imposition ; 
 beyond this, it would be sacrillciiiK substance to form, following words rather than 
 ideas." 
 
 For other recenldeeislons regarding cerlillcale of a magislrate or notary |iublic 
 as a condition precedent, see Osewalf v. Hartford I'i re Ins. Co., :t! Atl. Kcp. (ls(l(i> 
 
PROOFS OF LOSS. 
 
 616 
 
 
 373. Notice and proofs by third parties interested. — It luia 
 been held in Quebec, that the person to wlioni los;* is payable can 
 give as valid a notice of loss to the insurer as the owner can.' But 
 the contrary rule prevails in Ontario, Manitoba and British 
 Columbia;- except that, in British Columbia, proofs of loss may 
 be made by a mortgagee to whom the policy is payable with com- 
 pany's consent;' and in Ontario, a mortgagee with whom the 
 com]iany has dealt as such, may bring an action against thom, not- 
 withstanding the statutory condition.' 
 
 It has been further held in Quebec, that, when the loss under 
 a policy of tire insurance on goods is nuide payable to a party other 
 than the person who etiectcd the insurance, and such third party 
 becomes owner of the goods by a transfer to Ixim of the warehouse 
 receipts of such goods, such third party l)econies tliereby the party 
 insured and can, therefore, legally make all necessary preliminary 
 proofs of loss."' 
 
 In one Ontario case it was shown, that after a loss the insur- 
 
 7H") ; 17."i Pa., t"^7 ; and Swearingcr Bros. v. I'ac. I'Mre Ins. Co., 2 AIo. .Vpi). Itcp. (l.SlHi), 
 
 [n Uoiiic Fire Ins. Co. v. IlaimnaiiK '/ "'•. ".M Iiis. L. .1. dSll.")), llKi, tlu' validity of 
 sucli a i)roviHioii was douV)tod, tlu^ court sayiiiK, ll>iit the constitution sfuanmti'cs to 
 theciti/iMi a ivnicdy hy duo coiirse of law for .uiy injury to liiniscir. his property, or 
 liis reputation, and tliat it seems that the riu;hf of an insured to niaint;iin an .iction 
 cannot he made to depend upon his lirst furnishinjj; a certiticatu as to his moral 
 character, tinaneial standiun, and a notary's opinion of the loss. Sec infra § 375, 
 note, p. (ilS, aiul S ;!7{i, note, p, &J.'2. 
 
 Hut see idso (lotllieb v. Dutchess County .Mnt. Ins. Co., ;!.") N.Y. Sujipl. (ISi).")), 71; 
 00 X V. St. Kep. (IS:)")!, 2.-)0, where it was said, that recovery could not l>e had when 
 maf;iHtrat.''s certdlcale was returned, hecause it was not that of the ma^iistrate 
 nearest the lire and was not furnished wit liin sixty days. See hifrn S H7tl, note, p. (i2;{. 
 
 In Moyer v. Sun Ins. ()lli(te of London, :!."> All. Kep. (lS',)(i), •J.2\. the court decided, 
 that the assured is not obliged to furnish a magistrate's or notary's ccrtiticate uidess 
 specially notilled so to do. and a notillcat ion that tlu; terms of tlu policy must bo 
 strictly complied with, is not such special notice as will hind the U'^sured. See also 
 supra S ■i70, note, p. (ild. 
 
 In Snmmerlleld \. I'luenix .Vss. Co., 21 Ins. L. .1. (1S!).")(, ||2, a rc(|uirenu'nt in the 
 policy providlufj; for a liuilder's c< llilicate. as |iart of proofs of loss, was held sulli 
 ciently <'omplied with by an itemi/ed estimate of tlu' cost of rebuildiuji from a res- 
 ponsible lirm of buildi'rs, but not sworn to, and altaclu'il to the preliminary proofs 
 after the e.\|)iral ion of the time stipulateil in the policy for furuislunn preliminary 
 proofs of loss. 
 
 1 Nalioiuil Ins. Co. of Ireland it Harris. 17 U.L SMK .M. 1., ){.,.-. (^ 11. :iir.. and see 
 (iiicriii \'. .Manchester Fire Ins. Cn,, iiifr't. 
 
 ■-(Kt Vice mi (()), s. KiS, ss. 12. ir S. M. l.sDl, c. .">!», stut. con, 12. H (', Ins. 
 I'oliey Act, 1S!);1, c. 12, stal. con. 12. 
 
 ■TiS Vic. c. 22, sec. 1. iH.C.t 
 
 < .Miteiioll v. City of Nolidou Ins. Co,, ITi A. It. 2()'.!. 
 
 ' Stanton \-, Home Ins, Co,, 21 L.C.I. :K 
 
(]lfi 
 
 INSURANCE LAW OP CANADA. 
 
 ance company recoivcd certain proofs of loss from the mortgagees ; 
 they macki no ohjectioii to tliem for man* months after, and gave 
 no notice tliat further proofs were required. Wlien paying the 
 loss, they alleged that they were entitled to he suhrogatod to the 
 rights ot the mortgagees, and that they ol)jectcd to recognize any 
 claim hy the mortgagor, hy reason of non-compliance with the 
 statutory conditions as to proof ot loss. It was held, that tliey 
 must he taken to have dealt with the mortgagees as agents of the 
 mortgagor, and that they had waived further proofs of loss ; and 
 that the payment enured to the henefit of the latter.' 
 
 In the very recent case of Manchester Fire Ins. Co. v. Guerin^- 
 it seems to have l.ieen taken as settled that proofs of loss miglit he 
 ffiveu hv the mortgasree, to whom loss is iiavahle under the mort- 
 gage clause. 
 
 By the 17th condition in c. 1(32, R.S.O., a loss is not ]iayahle 
 until 30 days ' after [troofs of loss are put in, unless otherwise i)ro- 
 vided liy statute or agreement of the ])arties, and it has l)eeii de- 
 cided hy the Su[)renu' Court of Canada, that this is a ])i'ivilege 
 accorded to the com[iany. and, while the time may he further limited 
 hy agreement, it cannot l)e extended. 
 
 And per Strong. J., that a variation of the condition hy insert- 
 ing a clause in tlie policy extending the time is not a variation hy 
 agreement of tli(> parties, nor is such varied condition a just or 
 reasoiudile one.' 
 
 375. Waiver of proofs of loss.— The much disputed ([ucstion 
 of waiver of proofs on the [lart of the coinjiany oi' those acting on 
 its hehalf ' has received much attention tVoni the courts hoth in 
 Canada and the L^nited States. Its ini|;,)rtanci' has hcen fiillv re- 
 
 ' Bull V, Norlli Uritisli Cui. Invest. Co., \'.> A.I{. 121, nltiinit'd in .'Sujiri'mi' ('i>nit 
 S.C.H. Sec AiidfiMiii V. Siuinoi'ii Mul. Kin- Ins. Co. iil' .Ml. KonsI, IS O.K. H.m. 
 
 - H..I Q., i") I). 11. IMI, iiou in Sniircnic ('ourt ol' ('iiii.ula ; rct'ci red to .fuprn ^ Ml, 
 note 5 ; iil.so mi/ini pan'i! Ill"), noti^ 1 ; and set" Indi-.x for other references to siiiue case. 
 
 '■' Sow si.\ty (lays. :is pi'r (ii) Vic, c. :i(i (O), s. SO and s. liiS, s.s. 17; .•^itprti i 
 218 (17). 
 
 ' Supreme Ct. of Canada. City of London Fire Ins, Co. v. Sniilli, 1.") S.C.H. Hi) ; 
 tind sou as to varialion of stat. con. 17. hifra. cluip. XXII. 
 
 Il was said in Home .Mat. Ass. \'. Scaler, 12S Pa, St. "iltt. thai the insurer is not 
 hound to wail tlie wliole of llie speei(ie<l I inie before 'nalvinn' piiyineiU, in order to 
 H'ivu possiUle clainianls an op|)ortunily to make Unown tlieir claims. .\nd in .McCon- 
 noil V. Iowa Mul. .\id .\ss., Ti' low.i 7'>7. on the oil cr liand, the court said, Ihat a 
 waiver of prools does not create a lialiility to (lay prior lo I In- expiral ion of I lie jicriod 
 alio well therefor, 
 
 ' See aUo aniirn ji ;t;!(t t\ as to agents' power w illi retcurd lo (iroofs of loss- 
 
M*< > ■\VW»,4 
 
 PROOFS OF LOSS. 
 
 617 
 
 fogiiizod, ami tlio com-ts sci'm to liavu oiidoavorcd to enforce not 
 80 niurli tlie letter of the law, as to ascertain the spirit whieh 
 prompted the enactment of the legislative safeguards thrown alxiut 
 the contract of iiisuranci;.' 
 
 A refusal to pay on other grounds is not a waiver of iiisulU- 
 cient notice of death. This decision was given by the Supreme 
 Court of Canada iu the case ot Ace. Tm. Co. of X.A. v. Yinuyij.- 
 where the policy provided, inter alia, tliat " in the event of any 
 accident or injury, for which claim may he nuide under the policy, 
 immediate notice must he given in writing, adilrcsscd to the nuui- 
 ager of the company at Montreal, stating lull luime, occu[iation 
 and address of the insured, with full particulars of the accident and 
 injury; and failure to give such immeiliate written notice, shall 
 invalidate all claims under the policy."' 
 
 On the 21st March, 188(j, the insured was accidentally 
 wounded in the leg from falling from a veranda, and, within tour 
 or five days, the wound, which appeared at first to he a slight one, 
 was complicated by erysi[>elas, from which death ensued on the 
 13th April following. 
 
 The local agent ot the eom[iany at Simcoe, Out., receiveil a 
 written notiet" of the acciileut some days before^ tlu' death, bul tiie 
 notice of the accident and death was only received at Montreal on 
 tlie 1st .Nfay. The manager of the company acknowledged receipt 
 of proofs of death which were subseipiently sent, without com- 
 plaining of want of notiee, and ultimately dei'lined to pay the 
 
 ' In the United States, it litis liei'ii said thiil, ^^'iicriilly, any stalcinciil or ciiii- 
 (lui't on the pait i)t an insurance lonipany or its K<'noral a^cnt, wlddi would taiily 
 ^ivo tile assured lo undcrsland, thai rornial jiroofs of loss are uiinoiessary, "ill 
 amount to a waiver of sueh iiroofs. And where proofs ot loss are furnished to the 
 insurer to which it oli.jeets, it must return the same with its ohjections, within a 
 reasonalile time, or its oh.jeetions will he \inavailin^;. Vide on these i)oinls : — 
 Walker v. (ierinan Ins. Co. of l''reepnrt, (ICaii. IS!).;), ;t:i I'ae. Hep. T;!!?. rnion In--. 
 Co. of Califoiiiia v. M.irwieU, (.Veh. lS!):i), .")l \. \\\ \W\\. .")l!i ; eiied mi/ini i 'M). note. 
 
 A iirovisiiiM eoMceniiiii; pi-oofs of loss is not. waixed hy acts of I lie eonipany after 
 the lapse of I lu' time sliimlaled, unless they operate an an estoppel. To constitute a 
 waiver, the insurer must have acted, during the period slated in the ))olicy, in such 
 (I manlier as to induce a reasonahly pruilent man to Selieve that jiroofs would not he 
 required, or, if reiiuired, that t luM ime therefor was immaterial. Siletiee is not a 
 waiver. It is otherwise, however, where the proofs .ire received and retained hy 
 the comi)any vitliin the time allowed hy the |)olicy. or where they are reieived 
 lifter the lime, and the company adopts a, line of conduct lo the pre.indice of tlii' 
 assured. Holaii v. I''ire .Vss'u of IMiiliidi Ipliia. ."iS .Mo. App., -:;."), and t'ohn v. Oiieiit 
 Ins. Co., 1 Mo. .Vpp. Ih'p. (IS!).")), ."ill, refeiied to in/ni i'Mi\ note, p. fdl. 
 
 ■-i;0,'S. C. I{. -'SD: referred to. >tii/;/v/ ;i :!ii."i, — Duharme v. Mut. I''ire Ins. Co. of I.aval. 
 I'tc., '2 I,. N. Il.">, was to the conli.iry. .'■'ee also O'llearn v. Caled. Ins. Co., iii/ra. 
 ^ :!s."). 
 
618 
 
 INSURANCE LAW OF CANADA. 
 
 iiiif' 5 
 
 1i - 
 
 i!lP! 
 
 claim, oil tlio ground that tlic doatli was caused 1)V' diisoase and, 
 therefore, the company could not recognize their liahility. 
 
 It was held, reversing the judgment of the court below, Four- 
 nier and Patterson, J. J., dissenting, that the company had not 
 received sufficient notice of the death to satisfy the requirements 
 ot the policy, and that, by declining to pay the claim on other 
 grounds, there had been no waiver of any objection which they 
 had a right to urge in this regard. 
 
 The refusal by the company to entertain the loss of the insured 
 has been held by the Court of Appeals in Quebec to be a renuncia- 
 tion on their part of their right to exact details of the loss before 
 suit.' 
 
 And in anotlier Quebec case it was held, that a condition of 
 the [lolicy, reijuiring notice ot loss to be given and a particular 
 statement thereof to be delivered by the insuretl, witiiin fifteen 
 days after the tire, was waived and dispensed with by a distinct 
 denial of liability and refusal to pay on the part of the company, 
 made l)etore the period for furnishing proots had ex[iired.- 
 
 But not bv their mere silence.' 
 
 ' Agi'ic. Ins. Co. of Watcrtowii. v. Aiislcy, 17 It. I-. lOS ; and see Mitelmll v. 
 City iif I^ondon Firu Ins. Ci>., l:i O. H. VDii inl'rii. 
 
 - ilorald Co. v. Xortlicrn Ass. Co., ."Vf.L.K. t S.C. li.'il. Ouiuiet v. Glasgow and 
 London Ins. Co., li) R.L. -11. 
 
 •' Garceau v. Xia^ara Mut. Ins. Co., referred to .su^Jca iJ lili!), note, IKJ.L.R. :W7, 
 and see Canadian Mm. Fire Ins. Co. v. Donovan li L.X. :i:i!l, and Kelly v. Iloch . 
 Mtit. Fire Ins. Co., :t L.X. (W, siipm i ;•)()!>. 
 
 For denial of lialiility eonstitiiling' a waiver ot proofs of loss, see :— Cternian Ins. 
 and Savings Insi. \. Kline, (iJ \. \V. Rep. (IrtC)), S,")7. Continental Ins. Co. v. Cliew, 
 ;!S X. 10. Rep. (ISill). 117. CerliiiK v. Auric. Ins. Co.. 21 Ins. L. .1. (ISi).')), US.'). 
 Dwg.Iiouse Ins. Co. v. Hrewster, 21 Ins. L. .1. (ISO.")), 2St. Stephens v. German 
 Ins. Co., I Miss. App. Rep. (l.S'j;')), :317. Home V. Ins. Co. v. Fallon. 21 Ins. L. .1. 
 (isaj), (ii)l). Hanover F. Ins. Co. v. Schrader it al.. .U .S. \X. Rep. (ISlKi), lUW.- 
 Girard F. & .Mar. Ins. Co. rt iiL v. Fryniier rl nl.. :i2 S. W. Rep. (ISUot, an, 
 ilenial of liability, after havinj.; aecepted certain statements, held a waiver. — Home 
 Fire Ins. Co. v. HammanK '^ a/., 21 Ins. I,. .1. dS!!.")), l!i:!, w.iiver hy refusing to (lay 
 on the j^rounil that the policy was not in force at the date of the destrnetion of the 
 pro.ierty. — I'rohst. v. Ins. Co. of X. A., 2 Mo. App. Rep. (IsDii). 1010, a letter settim^ 
 forth objections to proofs of loss and intiinatin^j; tliiit the company, while not liable. 
 might yet entertain a proposition of eompromise, was declared to be a deidal of 
 liability and a waiver of proofs.— Xorris \. Farnieis .Mat. F. Ins. Co., 2 .Miss. .Vpp. 
 Rep. 1171 (ISDO), waiver of proofs by denying liability on the ground of over-insurance ; 
 see also Gross rf at. \ . .Milw. .Mecli. Ins. Co., same v. Western Ass. Co., 2."i Ins. L. J. 
 ():U (ISiHi). -Froofs of death under an accident iiisnranc<' policy iire waived by the 
 declaration of an otlieer of the company to the bcnullciary th.at it would be of no use 
 to maki' prodfs, because the insurance did nut cover such a case, Mi'tro|i. Ace. Ass'n 
 V. Froilaiid, 2,") Ins, I,. .1, ,')ii,") (I,-ii)(i). 
 
 Denial of liability by an adjustci' Is the denial of the conipan,\ and waives the 
 
PROOFS OF LOSS. 
 
 619 
 
 In liiiother Quoboc case it was i'uIcmI, tliat a condition in a 
 policy of insnrance to the effect that all persons insure<l shall, as 
 soon after a tiro a> possililo, deliver in a jjarticnlar account of their 
 loss or damage, is waived hy the fact of the agent of the coniiiany- 
 and the person insured, each choosing valuators, who make a 
 valnation of the loss, and by the fact ot the company ofiering the 
 assured a less amount than the valuation in settlement, sliowing 
 that they only disputed the amount to l)e paid.' 
 
 376. Mistakes in proofs —Waiver of defects and insufficiency. 
 
 — The United States courts have fre4ucntly had occasion to pro- 
 nounce upon mistakes in proofs of loss, ami the general trend of 
 
 fliiii.'jof prdiir.s of loss, sf) (lecUUnl in Dwff.-IIouse Ins. Co. v. f)sl)oni, 'JH Ins. L. J. 
 <18!)5), 751. Homo Ins. Co. of X. Y. v. (iibson, :il Ins. I.. .1. dSil.-,), l.js. Trundle v. 
 Prov. Wiisli. [ms. Co.. .")t Mo. .Vpp. ISS. Lpl. anil Ldn. and (llohc Ins. Co. v. Tillis, 
 17 So. Hci). (is:i.">), ()7J. — Proofs liandcMl to company's adjuster liy tliu agent of tlu> 
 assured were held snilicient in Roberts rf nl, v. X. W. Xat. Ins. Co., (>"J X. W. Rep. 
 (1895), 104S.— An adjuster, (hiding the loss total and in excess of the amount insureil, 
 said that it would ho paid, and agreed to pi'opare proofs, but did not do so. This was 
 held a waiver of proofs in D.ividson v. Guardian Ass. Co. of London, *") Atl. Rep. 
 (ISiKi). 22i).~.Vn adjuster telling plaintilV ih.it the poliey was void, because benzine 
 had been kept in the building, was held to constitute a waiver of proofs of loss in 
 Faust V. Am. F. Ins. Co.. (il X. \V. Rep. S,s;t (IS;).")). -.Vs regards the ipiestion of an 
 adjuster's , lilt horily. it was said in First Xat. Hk. of Devil's Lake v. Maneh. F. Ass. 
 Co.. i") Ins. L. J. ■S!'J, (ISOCi), that, in the absence of evidence to tlie contrary, it will be 
 presumed that he had jiower to waive proof.s, and his action in taking possession of 
 the (li'hrls iinii soiling the .same is prima /(trie evidence of his atithority. 
 
 Proofs of deal h have been held waived in D'Rourke v. .lohn Hancock .Mut. L. 
 Ins. Co.. •2\ Ins. L. .1. (is,).-)i. Kin. and in X.U Life-Maturity Ins. Co. v. Wliitacre. C! N. 
 E. Rei). (ISDO). !)l)."), by company ilcnying lial)ility. 
 
 In Travelers Ins, Co. v. Melick, 21 Ins. L. .1. (ISi).")), |:il). it was said, thai slale- 
 ments as to the c.mse of death in jiroofs are ecmclusive upon the pai'ty who niaki^s 
 them, only until he gives the company reasonable notice that ho was mistaken, after 
 which they have the eirect of solemn admissions under oath against interest, hut 
 are not conclusive. 
 
 A benellciary is not ostopiiod l)y statements, made in pr.iofs of dealh. as to age 
 of assured : Schniilt v. Xat. Life Ass'n. ^^2 X.Y. Snppl. (IS!).")), ."ii;j ; (m N. Y. St. Rep. 
 (IS!),")), 7:!7. See also ^'l)re cf iit. v. Mooth, \2 Pac. Rep. SOS ( ISIMI). — With regard to an 
 allidavil of a benellciary, it was declared proper in Hinkcrs Life Ass. v. Lisco, 25 
 Ins. L. .1. ;t,stl (ISI)lti, to permit I lie alliani to show that slu' nevei- knowingly sub- 
 scribed to or made the siatements in the allidavil which were contrary to repro' 
 sonlations of the insared in his applicalioii. 
 
 ' Converse v. Prov. Ins. Co. of ( Jaiiada, M L.C..I. 27(1. 
 
 See llonie 1'. Ins. Co. v. Bean, (10 X. W . Rep, (ISi)l) DOT, for waiver of |iroofs of 
 loss by demanding arbilralion. — Ilobsoii v, t^ueen Ins, CJo., 2 Ohio Decisions 175, 
 waiver liy couuiany moving insured properly afli'r'dre so as to deprive (he owner of 
 the oppni'lunily of m.ikiiig out proper proofs of loss.— .'Sage rs v. I law keye Ins. I'o., 
 ihl X. W. Rep. (IS!)5), li)|, proofs of loss were held waived when nearly all the books 
 of the assured had lieen iIi 'roved in the tiro and the company demanded iluplicate 
 bills, which it was not his duty to procui'e under the terms of (he policy: siiprn 
 S 3(!l». note, p. (i()7. 
 
620 
 
 INSURANCE LAW OF CANADA. 
 
 riiliiiy is, that the urisiirud i.s not estopped Iroiu showing a mistake 
 made in his statements, even as to a material faet, but without any 
 fraudulent intent, though the pmot's be sworn to as correct.' 
 
 It' the proofs of loss made out by the claimant do not comply 
 with tlie provisions of the policy or the rules laid down by the 
 
 ' T7f/c Wood, l:i7, (|U0tc'(l in Waldeck v. SpriiiKlU'ld F. & .M. Iiis. Co. (IBSI), SJ 
 Wis, 129 ; also Heacli, 1227 ; and Parker v. Atiiazon Ins. Co., 154 Wis. U(i3, in which case 
 the proofs were made out by tiie agent of tlie company and sworn to by one of the 
 owners, who testified on tlie trial that ho did not know what they contained. 
 
 The above prineiple was recognized in Stache v. Ins. Co., 4'J Wis. f*9, and in 
 Dogge V. Ins. Co., I!) Wis. 5(11. 
 
 In .McMaster v. Ins. Co., wX.Y. 222, the ipiestiori was very clearly and ably 
 discussed in the o])inion. The jjroofs in this case contained a statenuMit as to otlier 
 insurance at the lime of issuing the policy. The judge, in giving the opinion, said :— 
 
 '■ The i)roofs of loss arc no imrt of the contract of insurance, nor a part of any 
 contract. The contract of insurance reciuires that they shall be rendered, but it does 
 not make them, when rendered, a part of itself, as sometimes an application is made. 
 They are tlu; act or declaration of one of the parties to a pre-existing contract, in 
 atlenii)tcd coni))liance with its eonditions. The other ))arty to the contract is not a 
 pai'ty to this act or declaration, takes no jjart in making it, does not assert that it is 
 a true statement, and is not bound thereby. The instrument, which makes the 
 proof of loss, may be amended l>j the insured at his will, subject always to the 
 necessity that it be furnished to the insurer in such reasonable time as to meet the 
 requirements of the eonditions of the policy." 
 
 In another part of the argument, when speaking of the doctrine of estoiii)el, the 
 judge said : — " The i)roofs of loss do not create the lial)ilily to pay the loss. They do 
 no more in this aspect than set running the time, at the end of which the amount 
 contracted for shall become payal)le, and at which action may l)e brought to enforce 
 the liability. All the elements in an cstupjivl hi /Kds, iwi' lacking." Equally clear 
 and emphatic is the decision in Parmelec v. liotl'man Ins. t'o., .")! X. Y. l!Kf. See also 
 yElna Ins. Co. v. Stevens, 4S 111. lU ; Commercial Ins. Co. v. Ilucklierger, 'rl 111. -U'A. 
 The ca.scs of Campbell v. Ins. Co., 10 Allen 2l:J, and Irving v. E.xcelsior Fire Ins. Co., 
 1 Bosw. .W, which are mainly relied on to support the oppo.site view, that the 
 a.ssured cannf)t on the trial contradict the proofs of loss and establish a <iilt'erent 
 state of facts, by showing that the proofs were made under mistake, are commented 
 on by .Indge Folger in McMaster v. Ins. Co., supra. In the former case. Judge 
 Dewey observes, that " we do not mean to say that the party nniy not correct mis- 
 takes of fact ill his original statement, but such corrections are not for the first time 
 to be made known to the insurers at the time of the action to recover for the loss, by 
 the introduction of evidence showing that the statements fyled were not true in a 
 material fact, which, if it existed as stated, was fatal to the right of the insured to 
 recover." 
 
 The Wisconsin .Supreme Court, however, held in several cases, that an honest or 
 unintentional mistake in the iiroofs of loss under a lire iiolicy will not necessarily 
 prevent ii recovery thereon, even though notice of the error is not given the insurers 
 until the trial. 
 
 In Krb v. (ierman-Am. Ins. Co., (>" \. W . Hep. ."),s:{, (IHJIli), the court decided, that 
 over-valuation in proofs of loss, through inadvertence and with no intent to defraud, 
 does not defeat plaint ill's right to recover.— See also Hubbard v. North. Urit. & 
 Merc. Ins. Co., 57 Mo. App. 1.— And in Comm. Ins. Co. of California v. Friedlander 
 et at., 24 Ins. T,. .1. (IHll.")), 7Si), it was said, that the mere fact that the insured, in his 
 proofs of loss, valued the property destroyed at ijiiliSlO, while the real loss, as found 
 by the jury, was only #1,277, does not establish a fraudulent over- valuation. 
 
PROOFS OF LOSS. 
 
 621 
 
 legislature, the entire olaiin niay be imperilled, but an insurer will 
 be considered to have waived the plea ot'insutticienev it ho retains 
 the proofs without calling attention to their defects.' 
 
 On the same principle, it has been decided in the United States, 
 that when a statement ot loss is furnished within the stipulated 
 time, and there is nothing to show that it was not in good faitb 
 intended as a compliance with the terms of the policy, it is the 
 duty of the underwriter, if it means to rely upon failure to comply, 
 to give prompt notice of its objection, specifying the defects therein, 
 in order that the assured may have an opportunity of correcting 
 them. A failure on the part of an underwriter to so return the 
 statement, is some evidence for the jury of a waiver of strict com- 
 pliance. - 
 
 1 "Wilson, C.J,, in .Mitflii-ll v. City of London Fire Ins. Co., 120.I?. 7(Ki. 
 - Whilnioiv V. Dwelling House Ins. Co. (1S<,J2), US I'a. .St. 105. -See also Weiss v. 
 Am. Fire Ins. Co. (1S!)2), 148 Pii. St. 'M'J, where tlio company denied all liiibility and 
 the adjuster attemjited to settle ; formal ])roofs of los.s were sent nine days after the 
 time allowed hy the jjolioy and were retained hy the company without objection. 
 The court decided that the company could not take advantage of the delay. 
 
 AVhere defects are found in proofs of loss, capable of being remedied, if intelli- 
 gibly pointed out, failure on the part of the insurer to make known to the claimant 
 the defect, within a reasonable lime, is <leemed to be a wuiv(^r : and what is a reason- 
 able time is a question for the jury : Merc. Ins. Co. v. lloltham, W Mich. 42:5 ; Titus 
 V. Glens Falls Ins. Co., 81 X.Y. 410; Timayenis v. Union Mut. L. Ins. (lo., 21 Fed. 
 Rep. 223; Fire Ins Comp. v. Felrath, 77 Ala. 201. 
 
 As to waiver by retaining ])roofs cf loss, see also :— Palmer v. Great Western 
 Ins. Co.,ii2 X. Y. St. Rep. (181)4), rm ; IHO N. Y. Snppl. (1S04), KUl ; and German Ins. 
 Co. of Freeport v. Hall ft id., 41 Pac. Rep. (18i).")», tin. 
 
 If the company, « hen notilied of the death and requested to furnish blank proofs 
 of loss, refuse to do so, on the ground that the policy is void, or that it is not liable 
 for the loss, such conduct will be held a waiver of proofs and they need not then bo 
 supplied : Grattan v. Metrop. Lite Ins. Co., 80 X.Y. 281 ; Payne v. Mut. Relief Soc, 
 fiX.Y. St. Rep. :«•).-). 
 
 Rutin Standanl L. & A. Ins. Co. v. Strong, 41 N. E. Rep. 004 (18i).j), the court 
 held that, inasmudi as the contract did not provide that the company would furnish 
 blanks for proofs of death, the mere fact that the company "accepted and retained " 
 the proofs of death, or failed to furnish blanks to enable the clainianl to make proof, 
 does notconstitute a waiver of s\ich proof ;lhat, if the proofs were furnished loo late, 
 the mere fact that they were retained does not revive the company's liability; and 
 that the mere fact that it refused to acknowledge such liability, cannot be taken as 
 a waiver of proof of the injury. 
 
 The retention by an insurance company of proofs of loss, without objection, is a 
 waiver of its right to object to them for insntliciency ; - 
 
 The following cases are all to this eilect :— Gerniania Fire In.s. Co. v. Stewart 
 ft al., 42 N. E. Rep. 2S(i (ISO.".) ; 
 
 Northern Ass. Co. v. Samuels ft id., :i;i S. W. Rep. 2:ill (18i)(i) ; 
 
 Royal Ins. Co. v. Mclntyre, lU S. W. Rep. lUK) (18!»(i) ; 
 
 Xorris v. Farmers' Mut. Fire Ins Co., 2 Miss. App. Rep. 1171 (1890) ; 
 
 Dantel v. Penn. Fire Ins. Co., 2 Miss. App. Rep. 12."j (1890) ; 
 
 Millers Xat. Ins. Co. v. .fackson Co'y Milling *: Elev. Co., 00 111. Ajjp. 224 ; 
 
 1 lis 
 
 ! 1 
 
 1 : ; : 1 
 
r 
 
 w 
 
 622 
 
 INSURANCE LAW OF CANADA. 
 
 Aa we have seen, the assured is bound to <;ive notice and sub- 
 mit proofs of loss within tlio time stipulated tlierct'or, and a failure 
 to conform to this recpiircmeiit will, under ordinary circumstaiu;es. 
 involve a forfeiture of his claim.' 
 
 Probst V. Am. Ceiitriil Ins. Co., 2 Miss. App. lU<p. 12S() dSHtii : 
 
 Morntock Ins. Co., v. Cheuk, 2.5 In.s. L. .1. (iiil (ISim); 
 
 Orofiiin V. United Stiiti-s Indnstlal Ins. Co., »! X. Y. Su|)pl. (WT (ISil(i) ; 
 
 XatioiKil Life Miituiity Ins. Co. v. Wliitiu-ro, 4:{ X. K. Hvp. '.'().") lisini) ; 
 
 St.uuliird Life & Ace. Ins. Co. v. Ko-n, :i:i .S. \V. Hep. KW (ISi).')) ; 
 
 DeViin V. Com. Tniv. .Mat. Ace. Ass. of Am.. :t(i X. V. Snppl. '.i:!I (18im). 
 
 Defects in proofs of loss were also lield \vaive<l in First Xal. I!li. of Devil's Lake 
 V. Am. Central Ins. Co., 21 Ins. L..L (lS!),')i, 51), by relaininj^ proofs without objection . 
 and where proofs Kiil)stanlially conformed to the re(|niremenls r)f the ijolicy, as in 
 tjerman .Mut. Ins. Co. v. Xiewcdde, :ii) N. K. Rep. (l.'^H.)), 5;il, the company, denying 
 lial)ility on other f^rounds, must be deemed to have accepted tlie jjroofs as a com- 
 pliance with tlie policy.— In Am. (Central Ins. Co. v. Heaverin, Ki l\y. L. Kcp. il.'^UI), 
 !).'>, where the eonuiany claimed the proofs were not such as rei|uired by the i)olicy. 
 the conrt decided that the ri<j;lit to reipiire fnrther p;o(>fs ha<l iieen waived on the 
 part of the company by announcing that it did not iiilei\(l to pay on other ;-;roands. 
 
 If a company Liives the assured to understan<l that only a compromise will be 
 entertained, unless an inventory destroyed in the lire .md to which it is not entitled 
 under the policy, be furnished, as sliown in Phu'nix Ins. Co. v. Center, lil S. W. Rep. 
 (ISll.T) tlli, it waives formal i)roofs of loss. 
 
 rnsullicieney of the ))roofs of loss has been held waived in Hom(> Fire Ins. Co. v. 
 Ilammaniic/ (»/., 21 Ins. L. .L (lS!».i) liKi, where the adjuster went through all the 
 formalities of the ajnstnuMit, ollered a sum in setth'menl, and the company, retain- 
 iufj; a paper called "proof of loss," made no complaint nor retiuested any further 
 ])roof. .See also siijtrd S :<72, note, p. (115, and S •<"■">, note. p. ()!.><. 
 
 ' If, however, the delay in furnishing; pi'oof.s or liiving notice is in any way 
 attributable to the insurer or c.'iused by him, the delay will not be regarded: as in 
 Little V. I'hionix Ins. Co., I2:{ Mass. :JS() ; O'Hrieii v. Ohio Ins. Co.,.")2 Alich. IMl ; or as 
 in Supreme Sitting; Order of the Iron Hall v. .Sieen. 22 X. K. Itej). l:{(!, where the 
 l)roper oltieer refused to certify to plaintills. 
 
 For waiver of delay in furnlshiufx i)roofs of loss by statement of aj;ent, thai the 
 company would not lake advantage of the delay, esjiecially where the |)olicy did not 
 proviile for a forfeiture in such a case, see Jhirlinuton Ins. Co. v. Tolicy, :i() .S. W. 
 Rep. (ISl).-.), lUL 
 
 In Crcrman Ins. ("o. v. Hrown, 2!t S. W. Rep. (ISK.")). :UH, it wa.s lield that proofs 
 not l)eing furnished until after the e.vpiry of the stipulated time was not a cause for 
 forfeiture, but that it was a re(|uirement that proofs should be furnished bef(U-e the 
 action could be maintained. See also Carey v. Allemannia F'ire Ins. Co,, 2.5 Ins. L..J. 
 l:)7 (ISlMi), delay in makiiij; pi'oofs not waived liy retainini; same withoui objection. 
 
 In Ivoller v. (Jerman-.Xm. Ins. Co. (l.S!i;i), S .\ , 'iM...!. I(l2'i, proofs were furnished 
 too late, but comi)lainant alleged a iierforniance of all the comlitions by st'rvinj;; on a 
 certain day notice and proofs of loss, and Ihe court sustained a dem\irrer, unless the 
 complaint was amended. The numerous cases of i)recedent, ((Uoted by the court in 
 this action, were ; McDiarmid v. Ins. Co., II .\. Y. Su)). Ct. 221 ; Underwood v. Ins. 
 Co., 57 X. Y. .500; Blossom v. In.s. Co., (i4 X.Y. I(i2 ; Quinlan v. Ins. Co., 133 N. Y. 
 ;)5(i, where proofs of loss were held a condition precedent to any rifiht of action unless 
 waived. ,\nd (ui the obvious di.-.linction bet ween acts amounting to waiver before 
 l)i'each of forleilure and those oceurrinji- afterwards : Brown v. Ins. Co., 10 Ilun. 101 
 rt sri/. ; Blossom v. Ins. Co., iiiij)r(i. As to retention, witho\it <ib.jeetion. of jiroofs 
 timely served acting as a waiver of all technicalities or Mifornnilities, which might 
 
PROOFS OF LOSS. 
 
 623 
 
 tlie 
 
 not 
 
 , \V. 
 
 proofs 
 
 ■ for 
 
 ■ the 
 
 r-.j. 
 1(111. 
 
 lislu'il 
 
 : on a 
 
 the 
 
 irl ill 
 
 Ins. 
 
 NY 
 
 iiiloss 
 
 l)i'fore 
 
 111. 101 
 
 iroofs 
 
 iiiislit 
 
 li,a\'e been corrected if they hiiil heen proiniitly jioiiited out : Titus v. Ins. Co., 8 Ahb. 
 X.C. :U.i : ».c. HI X. Y. IK) ; HIchards on Ins. S.). Proofs lieiiij; lield waived altogether, 
 where the company led assured to supiiose that none would be reiiuii'cd : Lowry v. 
 Ins. Co., :i:2 Hun. ;t2!»; or where by its conduct it led to delays whieli it afterwards 
 complained of : Van .Vllen v. Ins. Co., 10 IIuii. :{!)7. allirmod 1\> N.Y. 001 ; Coudwin v. 
 Ins. Co., 7;J X. V. ISO; Hisliop v. Ins. Co., VU] X.Y. :iSS. Where proofs were not 
 served in time, iind llie olijection was deemed waived, because the (^om|)aiiy retained 
 the iiroofs and put its refusal to pay on other gronnds : O'Ueilly v. Ins. Co., 1!) W. D. 
 147 ; Owen v. Ins. Co., 10 Abb. X. S. Kili. note ; Hennet v. Ins. Co., l."> Abb. X. C. l';!|. 
 A company may refuse to ))ay a loss, without speeifyinK any ground, and, when 
 sued, in.ay insist ujion any availal)le ground ; but, if the conijiany plants itself upon 
 a specitle defence and ko uotilies tlie assured, it cannot retract after he has acted on 
 its position anil incurred expense in coiiseiiueiu c of It: Hrink v. Ins. Co., SI) X Y. 
 inS; I'lentice v. Ins. Co., 77 X.Y. IS:!; (ioodiiian v. Ins. Co., 7.', X.Y'. W) ; Titus v. 
 Ins. Co., SI X.Y. 410, sii,>>ii : Weed v. Ins. Co., V.V.i X.Y. ;!!)!. While a waiver .if for- 
 feiture need not be liased upon a technical estoppel, yet. in the absence of an express 
 waiver, some of the elements of an estopjiel must exi.^t : Armstrong v. Ins. Co., l.^l) 
 X.Y. 5()0 ; Ronald v. Ins. Co., Vi- X.Y. li.Ml. Merc silence of a company, at a time 
 when it was not re(|uircd to speak, is nor a waiver, nor evidence from which waiver 
 maybe inferred : Aiinstrong v. Ins. Co., supni. 
 
 In CarpiMiter v. (Jerman-.Vmer. Ins. Co. (1S1)2), V-i', X.Y. 21>S, a delay of one liun- 
 (ired and rifleeii days was. under the particular circumstances of the ca^e. held not 
 unreasonable. It was there said, that "the perl'i'i'iiiance of the stipulation as to 
 proofs of loss is not made a condition of liability of the insurer by the terms of the 
 policy, but it is'a condition of recovery." The court further held, that the insistence 
 of tlic comp.-my upon the right to examine the assured under oath was a waiver of 
 any ob.jcction founded on the delay in serving the proofs. 
 
 In Thomas v. Hurlington Ins. Co. (ISill), 17 Mo. App. KiS), the court declared that, 
 while the company had the ri.ulit to examine the assured iiiiiler oath, they liad no 
 right to reciuire him to submit to a private examiiii.tion. and the assurcd's refusal to 
 submit to an examination, unless his attorney should be permitted to bo present, 
 ci)uld not prevent his recovery. The court added :-" We can see no reasonable 
 olijection to the reiiuest by tlie assured lo have hi.- attorney present, while being 
 examined by the company's representative. In so doing, no additional eoiidition 
 was being tacked on to the stipulation of the contract. Rather is it true, that the 
 company was insisting on an additional stiimlation." 
 
 '"The clause .ibove <|Uoted does not reipiire the assured to undergo a private 
 examination, liencethc coinpany's representative was calling on lhe;issure<l to do 
 something not required by the contract. .\s was said liy the court in another case, 
 (iripsby v. Ins. Co., 40 Mo. .\pp. -70, is:;, there is surely no iiiii)ro]iiiety in the assured 
 <'onsulting his legal adviser in matters of this pat ure. When insurance companies 
 proceed to take these examinations, it is tantamount to a declaration of an intention 
 to contest the claim, and it would seem the part of prudence that the assured have 
 his attorney at liand when anything so important is being done." 
 
 See also .Vmcr. Cent. Ins. Co. v. Siinp.son tlSOO), 4:1 III. .App. OS. 
 For recent <lecisions of general interest .given by courts in llie Cnileil St,iti?s In 
 connection with prool's of loss, si'e :— A statement, that jiroofs ncetl not be made 
 pending invest iirat ion of claim, is not a waiver of ijroofs, Allibone v. Fid. and Cn^. 
 Co., ;i2 S. W. Rep. ."i(i7 ilSltrr). -I''nrfeiluri' by failure to fiirnisli jiroofs as re(|uirc(l by 
 jiolicy, GoMlieb v. Dutchess County .Mut. Ins. Co., :i,") .\. Y. Sni>pl. (ISI).".), 71 ; 00 X.Y. 
 St. R"p- <1''*.'5), iJiiO; cited .s«j)c« i! 37:i, note, p. 01,"). 
 
 Wliere a jioHcy reiiuired a particular account of the loss within thirty days, and 
 also reiiuired the insured to submit to an examiniti(ui, it was held, that the pro- 
 vision for a forfeiture did not ap|>ly to a failure lo furnish the account as rccpiircd. 
 Xu\. Central Ins. Co. v. Ileaverin. ii Ins. L. .1. 711 llSil(i). 
 
 The opinion of tin" assured as to the value of his stoi'k is inadmissible where be 
 
 M. :t 
 
IMAGE EVALUATION 
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 624 
 
 INSURANCE LAW OF CANADA. 
 
 
 can furnish an inroice, made shortly Iwfore the flrc, and show average daily sales 
 and purchases up tc date of lire, Duff v. Fire Ass'n of Philadelphia, o«i Mo. App. ;{55. 
 
 Where owing to a mistake of the assured the proofs are received by the company 
 after the expiration of the time fixed in the policy, no claim can be maintained, 
 Maddox v. Dwj;. House Ins. Co., rM Mo. App., :<43. 
 
 Where there has lieen no compliance with the terms of the policy as to proofs of 
 loss, and no waiver, there can b3 no recovery, Cohn v. Orient Ins. Co., 1 Mo. App. 
 Rep. (Ihli.'i), oil ; referred to su]>r<i 8 ;i7.i, note, p. 017. 
 
 A clause in the policy providing that assured shall furnish the company with an 
 inventory of tlie damaged and undamag->d goods, does not re(|nire him to furnish an 
 Inventoiy of goods totally destroyed, Johnston v. Farmers' Fire Ins. Co. of York, (14 
 X. W. Rep. (1S<J.5), i).— See also Boyle ^t nl. v. Hamburg-Bremen F. Ins. Co., 24 Ins. 
 L. J. (i'Jl) (1H9.5); and Powers Dry Goods Co. v. Imperial Fire Ins. Co. of London 
 (ISttt), 4H.Minn. ;W0. 
 
 When iHoofs of loss are furnished, followed by unsuccessful negotiations, the 
 plea that plans and speciflciations had not been furnished, will not avail the com- 
 paiiy as a de'vnce in an action, it being apparent that suit was inevitable, Monte- 
 leone v. R. 1 : .v. Co., 2^4 Ins. L. J. 331 (1895). 
 
 A stati- i.i .It in the proofs of loss that the building destroyed was occupied as a 
 resl(iei;ce uo to a certain date, was held not an admission that it remained unoccu- 
 pied I'ortun 'ixy •iirenfter, Hanover F. Ins. Co. (t al. v. Parrotte, (Ri X. W. Kcp. 
 (1MM> fvm. 
 
 Tlicbssup . . .absence of fraud, is not limited in recovery by the amount 
 
 of lo: s specill: u • he proofs, lienlly v. Stamlard F. Ins. Co., Z\ S. E. Reji. .584 
 (1890). 
 
 The making ot a thorough investigation by the company on its own account, 
 before receiving proofs of loss, is no evidence of a waiver of the re(|uirements of a 
 policy in respect to i)roofs of loss. People's Bank of Greenville v. vFtna Ins. Co., /■» 
 Fed. Rep. U)l (1800) ; and ibidem the fact of com|>any being informed, tliat there was 
 fraud in the \on», will not Justify assured in concluding that company will resist 
 claim and that the assured will be absolved from making proofs of loss. 
 
 The mortgagee must see that proofs of loss are made in order to maintain an 
 action on the policy as modified by the mortgage clause. Lombard Investment Co. 
 V. Dwg.-IIouse Ins. Co., 1 Mo. App. Rep. (181),")), .513, and Southern Home Bldg. and 
 Loan Ass'n. v. Home Ins. Co. of Xew Orleans, 21 S. H Rep. (18!),5), 37.5 ; 27 Lawyers' 
 Reports, Annotated (18<).5), 844. 
 
 Where a certificate of the attending physician was submitted with proofs of 
 death, the beneQclary cannot afterwards object that the physician's statements are 
 privileged and not binding upon her, Proppe v. Metrop. Life Ins. Co., 34 X. Y. 
 Suppl. (1830), 172; 08 X. Y. St. Rep. (181)5), 223.— Unauthorised statements in a phy- 
 sician's certificate as to cause ot death are inadmissible in evidence where the cause 
 of death is the vital issue, Neudeck e.t al. v. Grand Lodge, A.O.U.W., 1 Mo. App. 
 Rep. (1805), ;130.— Where the blank forms of proof call for a certificate of the attend- 
 ing physician and he refuses to sign it, the requirement in the policy of snflU'icnt 
 pi'oof of death may be complied with by other proof. Sun Ace. Ass'n v. Olson, 50 
 111. App. 217. 
 
 Where an accident insurance policy provi<led for immediate notice of claim and 
 positive proof of death within six months, the assured disapppeared on Xov. 0, 181)2, 
 and his body was found in the water on April 10, 181)3 ; notice of dea' was given on 
 May 20, 1803, and proofs were furnished on .Inly 12, 181)3 ; this was held lo show a 
 reasonable compliance with the terms of the policy in Kentzler v. Anier. Mut. Acf, 
 Ass'n, Ot) X. W. Rep. (1804), 1002; 18 N. .1. L. .1. (1805), 22.— But in Coldham v. Pac. 
 Mut. L. Ins. Co., 2 Ohio Decisions 314, the court decided that no recovery can be 
 liad upon an accident insurance policy re(|uiring immediate not!'!.' of nn accident, 
 ]ii'oof of deatii to be furnished within .seven months, and action to be begun within 
 a year, where no notice of proofs were given until thirteen months after the acd- 
 
¥ 
 
 PROOFS OF LOSS. 
 
 6^5 
 
 •oofs of 
 its are 
 X. Y. 
 a vihy- 
 I'liuse 
 App. 
 lUti'iid- 
 lllcii'iit 
 son, 51) 
 
 (lent, and action was not commenced until subsequently, although the beneflciiiry 
 made every effort to tind witnesses of the accident, and did not know that the denlli 
 was accidental until the time the notice was given. 
 
 See also Brink v. Guaranty Mut. Ace. Ass'n (1801), 7 N. Y. Suppl. 847, where 
 further aotice was held waived, when company retained the notice given, althougli 
 it was not technically what the policy required. And Bu^haw v. Women's Mut. In-, 
 and Ace. Co. (1889), 8 X. Y. Suppl. i'£i, where retention, without objection, of an 
 informal statement of the injury, was held to mean, that the proof was satisfactory 
 to the company.— Manuf. Ace. Indem. Co. v. Fletcher (18U1), o Ohio C. Ct. flitt, whert' 
 t lie clause as to immediate notice was considered not binding, the a.s8ured having 
 ''een delirious for some weeks after the accident. — Heywood v. Maine Mut. Ace. 
 Ass'n (181);i>, 8.T Me. i8l», where it was held that, if the stipulation requiring notice of 
 accident within ten days has been neither complied with nor waived, there can be 
 MO recovery on the policy.— Cooper v. U. S. Mut. Ace. Ass. (1800), 10 N. Y. Suppl. 748, 
 :is to clause fixing time for commencing action.— (Vtrf* also infra chap. XXII). 
 
 in and 
 181 ):i, 
 
 veil on 
 
 how a 
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 V. Pac. 
 
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 CHAPTER XVIII. 
 
 FRAUDULENT CLAIMS. 
 
 ;}77. CiKNEllAL HKMAHKS. 
 
 378. Provincial leoislation and 
 
 juuisimutdkn'ck on fraud in ruoofs. 
 379. Recent American decisions. 
 
 377. General remarks.- Ap.art from tio cases referred to in 
 the last chapter and in which the evidence disdosed that the cause 
 of the insufficient or irregular compliance witli the provisions 
 regarding proofs of loss was to he found in mere carelessness or 
 ignorance on the part of the claimant, or where in any event he could 
 not be charged with a dishonest intent, there are also immerous 
 cases, in which the courts have been appealed to, in order to deter- 
 mine disputes arising from the insurers seeking a cancellation 
 of the contract on the ground of false swearing and attemi)ted 
 fraud in the statements furnished them for the purpose of establish- 
 ing the demand for compoisation. 
 
 378. Provincial legislation and jurisprudence on fraud 
 in proofs.— In Ontario,' Manitoba - and British Columbia,^ any 
 fraud or false statement in a statutory declaration setting out 
 proofs of loss, vitiates the claim. 
 
 There is no similar provision in Quebec, and, unless stipulated, 
 it would not have that effect there ; but, when stijuilated, it will 
 be enforced.' 
 
 Where an insurance policy is to be forfeited it the claim is in 
 any respect fraudulent, it is not essential that the fraud should be 
 directly [troved, it is sufficient if a clear case is established by pre- 
 sumption or ii\ference or by circumstantial evidence. And the 
 
 1 m Vic, c. ;mi (()», s. i(W, «s. i5. 
 
 •i H. S. M. IHltl, f. r.l), Btiit. con. l."i. 
 
 ' H. C. Ins. I'ol. Act, 18l»:». c. 12, stilt, con. !.">. 
 
 ^(irenicT cf vir. v. Momircli I'\ &, L, Ins. Co.,;iL. C .1. 1(X). TIioiikih e( iil. v. 
 TiiiieH a (I IteiiL'on F. Ass. Co., 3 L. C. J. I(i2. Sue iiKso in/'rn, Pacaud v. Queen 
 Ins, Co. 
 
 IV 
 
FRACDULBNT CLAIMS. 
 
 627 
 
 assignee of the policy cannot recover on it, if fraud is established 
 against his assignor.' 
 
 In an Ontario case, however, where the plaintitt' did not in his 
 declaration of loss disclose an encumbrance in favor of his father, 
 the jury did not tind nor were they asked to tind, that there was 
 any fraud or false statement in the plaintiffs statutory declaration. 
 It was held, that fraud or a wilfully false statement should have 
 been proved, and that it was not the place of the court to infer it.- 
 
 The furnishing of a certificate, as required by the condition 
 of a policy of insurance, of three respectable persons, that they 
 believed that the loss has not occurred by fraud, is a condition 
 precedent, without compliance with which the assured cannot 
 recover.' 
 
 In a Quebec case, where bad faith was alleged but not proved, 
 the court decided, that over-valuation did not vitiate the policy, 
 and judgment was rendered for such sum as ai)peared to be sup- 
 ported by the evidence.' 
 
 In order to successfully resist a claim on account of overval- 
 uation, the latter must be designed with a view to obtaining a 
 larger sum than the actual amount of loss."' 
 
 It has, however, i)een decided that, where a itarty insured 
 claims to have \)st by fire more than double tlu^ amount sub. 
 sequently ascertained by his and the company's valuators to be 
 the true amount of the loss, the claim will be held to be fraudulent 
 in the absence of clear evidence to the contrary, and the reference 
 to valuators (without waiver of the conditions of the jiolicy) will 
 not deprive the compaiiy of the benefit of the condition, that all 
 claims under the policy shall be forfeited in the case of fraud in 
 the claim or of false swearing i>y the assured." 
 
 Where in a fire insurance policy separate amounts were placed 
 on buildings and contents, and the assured, to induce the company 
 to pay her claim, falsely and fraudulently stated in the statutory 
 declaration, that she had suflered loss on the contents to the extent 
 
 ' Supi'iMiie C'otirt of Cinmdii, Xoi'ili Iliiii.sli vS: Muirantili' Iiin. Cu. iV Ti)iirville 
 it nl., U.") S.C.H. 177. rcforii'il to skih-ii S :iS!). 
 
 - lU'ilditk V. SauKci'ii Mut. I'Mru Ins. Co., II O.U. 501!, I.^i AM. :m. .Mason v. 
 Agririiltiinil Ins. Co., 18 C.I', lit, followed. 
 
 ■' Hiiclne V. ICii'iitnlilc Ins. Co. of London, (I I. .('.■!. .S!>.— Sih- also siii)rii i :)7:i. 
 
 ■* Fiu-aud V. Ijueeii Ins. Co., 21 L. C. .J. III. Hut see infra, Laro(iue s-. Hoyiil Ins. 
 Co., aa L. C. J. 217. 
 
 » Park V. I'lKunix Ins. Co., 10 V. C. Q. H. 117. 
 Luro(|Uu V. lloynl Ins. Co., 23 li.CJ. 217, refeired to supra. 
 
m 
 
 M 
 
 m^ 
 
 i: 
 
 628 
 
 INSURANCE LAW OF CANADA. 
 
 of #1,666.50, whereas the contents were proved to be worth $150 
 only, the court decided, that the mis-statement vitiated not merely 
 the claim in respect to the particular property as to which it was 
 made, but the entire claim.' 
 
 In another action, the company pleaded fraud in the statement 
 by the claimant in this, that he affirmed that his loss by the fire 
 was $2,129.77, whereas, in fact, it was $372.85 only, and further, 
 that the fire occurred by the procurement and connivance of the 
 assured, and that the policy was obtained by fraudulent misrepre- 
 sentation as to the cash value of the stock. The court found in 
 tavour of the company on the ground of fraudulent and gross over- 
 valuation both in the api»lication and in the proofs of loss, and dis- 
 missed the action. - 
 
 In Wiggitis v. Queen Ins. Co:^ the court said : — " The verdict 
 of the jury estimating the loss at $900 altogether puts aside the 
 olyection of fraud and fraudulent estimation, which is so clearly 
 within the province of tlie jury, that the appellant is entitled un- 
 hesitatingly to all its advantage." 
 
 In an action to recover from the defendant u sum of money 
 paid him in settlement of a loss by fire on a stock of goods, ]»y 
 reason, as was urged, of a misrepresentation as to the value of such 
 stock, at a date prior to the fire, it was alleged that defendant had 
 falsely and fraudulently represented his net loss to be the amount 
 so paid, whereby the plaintitts were induced to pay the same ; and 
 that defendant falsely and fraudulently represented that, at the 
 date prior to the fire, his stock on Viand was of a certain value, 
 whereas it was ot much less value, and that it was on the basis of 
 such value, that the calculation was made as to the amount of such 
 net loss, plaintiff also setting up the statutory condition whereby, 
 as alleged, the claim was vitiated for fraud and false swearing as to 
 the amount of the loss. The court held, on the issue as raised, 
 that plaintiffs must fail, for the issue was as to tlie amount of the 
 net loss, which the evidence showed had been misrepresented ; and 
 also, that there could be no recovery on the record as framed, for 
 plaintitts, having accejtted a surrender ot the policy, they bad not 
 offered to, and possibly could not, place defendant in his original 
 position; that no amenduKMit would avail, tor to maintain an action 
 of deceit, not oidy must there be misre[)resentation, but it must be 
 
 ' Hiirrls V. Waterloo Miit. F. Ins. Co.. 10 O.U. 71S. Sec iil.su i:{ L.N. 203. 
 •! Sc«liL'l.tl V. Queen In.s. Co., Id L C .1 . :ii:i. ' Vi L.C..) . 151. 
 
TT 
 
 '>. 11 
 
 FRADDULENT CLAIMsi. 
 
 629 
 
 the 
 11*1 
 for 
 >ot 
 
 tiial 
 
 he 
 
 to the damage of the iihiintitts, whioh the evidence failed to show ; 
 that the rftatutory coiiditiourt couhl hardly he invoked ^ for no 
 proofs of loss had heen required ; but, even if invoked, they would 
 aftord no defence, as there was no raisrepresentatiotj as to the 
 amount of loss. It was also held, that the misrepresentation, even 
 as urged, was immaterial, for it being as to ' ' " value of the stock 
 at the named date, the fact of its causing an .rroneous calculation 
 upon which the amount of loss was based, would make no ditler- 
 ence, so long as it was shown that the loss itself was within the 
 true amount ; and also, the plaintifts were estopped from setting it 
 up, as the evidence showed that they did not rely upon it, but on 
 the knowledge acquired, and independent information obtained, 
 hy the plaintiiF's agent in the course of his investigation. Semhle, 
 that on the evidence there was no misrepresentation at all.' 
 
 In a very recent Quebec case,' it appeared, that the plaintiff 
 held a fire p(jlicy in the defendant t-ompaiiy for $5000, made up 
 as follows : $4000 on general household furniture, $500 on a piano, 
 and $500 on liquors and cigars. 
 
 On the night of February 2^th. 1894, the building containing 
 the effects insured, and which was known as the " Club de Milles 
 Fleurs," was destroyed by fire, an<l on March 10th following, plain- 
 tiff filed her da-m for indemnity, in which she summarized her loss 
 making a total of S7180.35. 
 
 This claim was sworn to by plaintiff', and on April 9th, she 
 supplemented it by a second one, by which she located in the 
 various rooms of the house each piece of furniture mentioned in 
 this list, and she added to this second statemejit a list of the various 
 articles of wearing apparel which she said had been destroyed by 
 fire, together with a valuation put upon each article, the whole 
 amounting to $566, and she testified to the correctness of this 
 statement by a solemn declaration. 
 
 The company, not being satisfied that this was an honest 
 claim, objected to pay, and the present action was taken, by which 
 plaintiff claimed the full amount of the insurance, namely, $5000, 
 and after alleging the contestation, the Superior Court at Montreal 
 awarded her the sum of $4500. From this judgment the company 
 appealed. 
 
 ' Roynl Ins. Co. v. H.vltn, i) OR. 120. C P.D 
 
 '^ Dame Eliznbeth Berimnl ef I'ir. v. Xiitional Assurancu Co. of Ireland ; Court of 
 view, Montreiil, 30th June, 1897, not yet reported. 
 
 ill 
 
m 
 
 M 
 
 
 III' 
 
 m 
 
 680 
 
 INSURANCE LAW OF CANADA. 
 
 By tlie first plea, the company f.et up the conditions of the 
 policy relating to the making of a claim for loss thereunder, the 
 date and nature of the claims made, and alleged that the plaintift 
 did not suffer loss to the extent of $7180.35, as claimfed ; that the 
 goods mentioned in the claim papers were not of the value therein 
 stated ; were not her property and were not in the premises des- 
 troyed at the time of the tire ; and that her demand was exorbitant, 
 false and fraudulent, and that the statements contained in these 
 solemn declarations and in the accounts and schedules attached 
 thereto, were false and untrue, and by reason of the conditions of 
 the policy her claim had been vitiated, and she forfeited all rights 
 which she may have had under the policy of assurance. The com- 
 pany also tiled a general denial. 
 
 The condition pleaded stated in effect, that " any fraud or 
 false statement on the said claim, or an account in relation thereto, 
 shall vitiate the claim." 
 
 The appellant contended that there wiis fraud proved within 
 the meaning of the policy, and that, even accepting the finding of 
 fact in regard to valuation, which, they submited, was too favorable 
 for the plaiutitt', the action ought, nevertheless, to have been dis- 
 missed. 
 
 Evidence was produced on both sides regarding the actual 
 value of the liquors and cigars, and although the court considered 
 certain explanations by witnesses on behalf of the assured as "• open 
 to grave susjticion " and '• contradicted in several particulars," the 
 proof was not held suflicient to convict the plaintiff of fraud in 
 making the claim. Continuing, the court said : — 
 
 " Now, the piano was insured for $500, but $700 is claimed. 
 This seems strange, for $500 was presumably its value in November, 
 1893, when it was insured. It was sold in January, 1888, as a 
 second-hand piano for $360, payable by instalments, and the last 
 instalment ot $60 was only paid after the tire. One would hardly 
 think that a piano sold in January, 1888, tor $360 would be worth 
 more than that sum in 1893, and yet there are several witnesses 
 who seem to think plaiutitt made a great bargain in getting this 
 Steinway square at that price, and consider it worth $500. Recor- 
 der de Montigny is amongst those who put its value at $500. 
 riaintitt may have exaggerated the value in putting it at $700. 
 She could oidy get $500 in any case, and has only been allowed 
 $300, which is a reasonable sum. The proof leads me to the con- 
 
FRAUDULENT CLAIMS. 
 
 631 
 
 ^|i 
 
 viction that the value of the furniture destroyed was close to ?4000, 
 and if we add the value of the linen and wearing apparel, I cer- 
 tainly think ^4000 is a reasonable estimate of loss. It is true 
 that there appears to be some exaggeration as regards certain 
 items in connection with wearing apparel and with vegetables, but 
 we cannot reject the entire claim because these items look exagger- 
 ated. We should think that there was a loss tt) the extent allowed 
 by the judgment under review, viz : $4500. As to the ownership 
 of the property, we think the defendants have failed to make a 
 good defence on this ground, and that plaintiff has fully shown 
 her right to recover as owner. 
 
 370. Recent American decisions. The sur.ject matter of the 
 present chapter has been fully considered in some recent fictions 
 instituted in the United States. It is quite evident from a careful 
 examination ot these cases, that the courts have been reluctant to 
 accede to a request for forfeiture of claim on the ground of alleged 
 false swearing and attempted fraud, unless the otFence had with- 
 out doubt been committed ktiowingly and wilfully, and concerning 
 a material fact. In this they have merely followed the principle 
 adopted by the courts in general : that a policy ot insurance will 
 not be cancelled unless its conditions have been broken with intent 
 to defraud, or on a point which was either essential in itself or 
 which was made a vital part of the agreement by the terms of the 
 contract.' 
 
 • Forehand v. Niagtixa Ins. Co., .58 III. App. 101 : false sweariiiR to work forfei- 
 ture must be material.— Linscott v. Orient Iiis. Co.,:U Atl. Rep. (IHlMi), (05 : false 
 swearing consists in'knowingly and intentionally stating upon oath what is not true. 
 A fal.se statement, intentionally and knowingly or fraudulently made, constitutes 
 fraud, and the statement of a fact as true, which a party does not know to be true, 
 and which he has no reasonable ground for believing to be true, is fraudulent. The 
 company having complained of the terms " fraud and false swearing" being used 
 conjunctively, and contending tliat the court should have discriminated between 
 them, it was held, that it was immaterial which expression was used by the court, 
 the signitlcance of each being the same, when taken in connection willi the issue 
 before the jury and the subject-matter to which they lelatcd. -In I'Vibclman v. 
 Manch. V. Ass. Co., 19 So. Rej). nW (IXMt): a false representation in a sworn state- 
 ment, that a license to retail li(|Uors had been renewed, constituted no defence, there 
 being no averment in tlu'i)leaof any relation between the license and the insurance.— 
 Longcor v. Mercli. Ins. Co., IS) X. .1. L. .1. I'rl (l.S!Hi> : the fact of the insured conceal- 
 ing in his atlidavit an encumbrance by mortgage, was held not to be " false swear- 
 ing" within the meaning of the policy.— But in Davis v. (Irand Rapids !•". Ins. Co., 
 'M N. Y. Suppl. 7!>:i (IHIHI), it was said, that where proofs of loss slate that the prop- 
 erty belonged to the assured, and that no other person had any interest therein, 
 tliey state in ell'ect that there was no encumbrance on it.— Metzger v. Munch. F. 
 As.s. Co., 03 N. W. Rep. (1895), 050: false statements to an adjuster by assured's 
 
m 
 
 632 
 
 INSURANCE LAW OF CANADA. 
 
 ill! 
 
 ..51!^ ^i 
 
 husband, who had exclusive control of his wife's business and was her agent in 
 adjusting the loss, with intent to deceive tlie company, will not defeat a recovery on 
 the policy, unless made with the knowledge and complicity of the assured. (Grani, 
 J., dissenting). lu this case it was also said, that the term " legal representative " 
 referred to one who succeeds to the le^al rights of the assured by reason of his death 
 or the transfer of the policy, and not to a mere agent of the insured. 
 
 See also Lion F. Ins. Co. v. Starr (1H88), 71 Tex. 733 : " the attempt at fraud, to 
 cause forfeiture of claim, must have been wilful and not the result of inadvertence 
 or mistake."— Merrill v. Ins. Co. of N. A. (1H85), 2:< Fed. Rep. 245 ; " a false state 
 ment, to defeat recovery, must be false to the knowledge of the assured, and made 
 for the purpose of defrauding the insurer." 
 
 Stone V. Hawkeye Ins. Co. (1886), (t8 Iowa 737 : "an over-estimate, which was 
 made honestly and in good faith, clearly would not have the effect to exclude the 
 claimant from all benefits under the policy."— Behrens v. Germania F. Ins. Co. 
 (1884), 04 Iowa ID : " a mere overvaluation in the application for insurance will not 
 defeat a recovery in the absence ot afHrmntive showing of fraud. 
 
 In Lewis v. Council Bluffs Ins. Co. (1884), (J3 Iowa 193, the court decided, that 
 the iissured's demand of the whole amount of the policy, claiming under oath that 
 they were entitled to it, although the policy stipulated that loss, if any, was payable 
 to the mortgagees, as their interest might ap|)ear, was an attempt at fraud, avoiding 
 the policy, notwithstanding the fact that the original assured was required to make 
 prcof s of loss . 
 
 A ca.se in which the Supreme Court of California took occasion to very cavefully 
 sift the question of false swearing in proofs of loss, was West Coast Lumber Co. v. 
 State Investment and Ins. Co. (181):i), 3;} Pac. Rep, 2.58. It appeared from the 
 evidence, that the company, with notice that the assured had parted with his in- 
 terest, insisted upon his making the proofs; the loss was adjusted and the agent 
 authorised to make a draft for the amount of the loss to the order of the person to 
 whom, l)y the terms of the policy, it was payable. Under these circumstances, it 
 was held, that the company could not afterwards avoid liability by claiming that 
 the assured swore falsely as to the ownership of the property. The court cited Lion 
 F. Ins. Co. V. Starr, supra, and continuing said, that the statement complained of 
 must be knowingly and wilfully false, and intended to injure the company (Erman 
 V. Ins. Co., 'So La. Ann. 1005), or if not so intended, must relate to some matter con- 
 cerning which the company has a right to know the truth, and the effect of which 
 would have a bearing upon its liability, (Clatlin v. Commonwealth Ins. Co., 110 
 U. S. 81 ; s. c. 3 S. Ct. Rep. 507, infra). The court also cited : Sihcrberg, v. Ins. 
 Co.,67Cal. 3«; s.c. 7 Pac. Kep. 38. Murray v. Association, 90 Cal. 402; s. c. 18 
 Pac. Rep. 758. Stwche v. Ins. Co., 4l» Wis. 80; s. c. 5 N. W. Rep. :«. Smith v. Ins. 
 Co., 02 X. Y. 85. A strong point in favour of the plaintiff in the case in question 
 was the fact of the loss having been adjusted, and in this connection the court 
 quoted what was said in the case last cited, viz ; that " the time for investigation, 
 as to breaches of warranty, is when a claim is made of payment ; and if the com- 
 pany elects to pay the claim, or, what is equivalent, to adjust it by an independent 
 contract, it cannot afterwartls, in the absence of fraud, retract or fall back upon an 
 alleged breach of warranty." 
 
 In the case of Virginia F. & Mar. Ins. Co. v. Vaughan (1802), 83 Va. 832, the 
 undisputed facts were, that the assured in his preliminary proofs swore to an 
 amount in excess of the actual loss, and furnished false vouchers, for which no ex- 
 planation was offered. The Court of Appeals .said : "We must, therefore, infer, 
 that his sworn statements were known to him to l>e false, and, l)eing upon a material 
 matter, the law presumes that they were made with intent to deceive." This being 
 the case, there could be no recovery. In rendering judgment, the court said, in^ej* 
 alia: "An authority in point is Clatlin v. Commonwealth Ins. Co., 110 U. S. 81, 
 (referred to aupra). In that case, the policy sued on, like the policy in the present 
 case, contained a provision to the effect that, in a case of loss, the assured should 
 
 )!;:»'' 
 
FRAUDULENT CLAIMS. 
 
 633 
 
 .sul)iini( to an examination under oath liy an agent of the insurer, and that all fraud 
 or attempt at fraud, l>y false Nwearin^ or otherwise, should avoid the policy. The 
 assured, after loss, submitted to such examination and iitwe false answers as to the 
 manner in which he paid for the koo<Is. The answers, however, were made, not for 
 the purpose of deceivinf? or defrauding the insurer, hut for the purpose of showing 
 the afttant consistent with a previous statement he had made on the same subject 
 to a commercial agency, with a view of enhancing his credit in other cities. Nor 
 was it claimed, that his actual loss was not correctly stated. The plaintiti', there- 
 fore, contended th»t the answers, though f.V.se, constituted no liar to a recovery. 
 But the circuit court held otherwise and charged the jury that, if the answers were 
 intended to inlluence the action of the insurer and were false, then there was a false 
 swearing within the meaning of the policy, which avoided it, although there may 
 have been no intention to defraud. In affirming this ruling the Supreme Court 
 said: " A false answer as to any matter of fact material to the inquiry, knowingly 
 and wilfully made, with intent to deceive the insurer, would be fraudulent. If it 
 accomplished its result, it would be a fraud eflfected, If it failed, it would 1k> a fraud 
 attempted. And if the matter were material, and the statement false to the 
 knowledge of the party making it, and wilfully made, the intention to deceive the 
 insurer would be necessarily implied, for the law presumes every man to intend the 
 natural consequences of his acts." 
 
 ;.' I 
 
f]'" ' 
 
 '\ 
 
 CHAPTER XIX. 
 
 ARBITRATION. 
 
 380. CJenekai, kkmarks — i.koisla- 
 
 TIVE ENACTMKNTS AXU JURISI'HrilKNCrO 
 ON AKHITKATION. 
 
 381. WhERK ARBITRATION IS IIBI.I) 
 
 A CONDITION PRECKDENT AND WIIEHE 
 IT Is NOT — WAIVElt OK AKHITKATION. 
 
 382. Powers and h-ties ok ap- 
 
 PllAISEKS— (OST (,K AI'I'KAISEMENT. 
 
 380. Legrislative enactments and jurisprudence on arbi> 
 tration — Under statutory conditions in Ontario,' Manitolia ■ and 
 British Columbia,' if aii}' differem-o arises as to the vahie of the 
 property insured, of the property saved, or of the amount of the 
 loss, the same shall, whether the right to recover on the policy is 
 disjiuted or not, and indei»endently of all other questions, be sub- 
 mitted to arbitration. There is no such statutory enactment in 
 Quebec. 
 
 Under the common law, the courts have not hitherto favored 
 an attempt to oust them from their jurisdiction and to substitute a 
 tribuiud, erected by the parties, for the tribunal which pubru- policy 
 and the jjeneral laws have established and clothed with the requisite 
 powers to make them the efficient and, upon the whole, the best 
 means of hearing and determining controversies between indivi- 
 duals. 
 
 While, however, it is perfectly well settled that, under the 
 common law, any agreement that contemplates the exclusion ot an 
 aggrieved party from a suit of law is invalid, there seems to be no 
 doubt that any agreement as to the mode of adjustment or ot 
 settling the amount of loss, or the time for paying it, or any par- 
 ticulars of that nature, which do not go to the root of the action, 
 but arc preliminary thereto, or in ..id thereof, as, for instance, an 
 agreement that at the trial of an action it shall not be lawful tor 
 either party to enter into the question of the amount of the loss, 
 but that it shall always be settled by reference, and that the only 
 
 1 W Vic, c. 30 (O), 8. 108, stilt, con. 10. '' R. S. M. 181H, c. .59. stilt, con. 10. 
 •I B. C. Ins. Policy Act, 1803, stat. con. 10. 
 
 
ARBITRATION. 
 
 636 
 
 question to bo tried at law sliall he tlie right to recover, is pertoctly 
 valid and le<ral]\- hinding.' 
 
 In the (iuehoe case of Veters v. Oaehec Harbor Corners," it was 
 said that a clause, referring matters in dispute under a contract to 
 arbitration, was mill and did not hind the [lartiea; hut tlie Supreme 
 Court of Canatla moditied this decision.' 
 
 From the time of the earliest English leading cases ' down to 
 the latest decisions, it has been found by the courts most difficult 
 to reconcile and give effect to two propositions so nearly in direct 
 opposition, as tiiat no contract of the parties shall oust the juris- 
 diction of the courts, and that, on any difference arising between 
 the two parties, it shall be referred to arbitration. T?nt the fair 
 result of the authorities is, that if the contract is in such terms 
 tfiat a reference to a third person or to a board of directors is a 
 condition precedent to the right of the party t<> w aintaiii an actitjn, 
 then he is not entitled to maintain it until that conditiou is com- 
 plied ^\ iti; ; but if, on the other hand, the contract is to ,iay for the 
 loss, or other matter in (piestion, with a subsequent contract to 
 refer the matter to arbitration cojitained in a distinct clause col- 
 lateral to the other, then that contract for reference shall not ou"*^ 
 the jurisdiction of the courts or deprive the party of his action.' 
 Regarding the rule, that the jurisdiction of th. courts should 
 
 'Scott V. I'lui-iiix Ass. Co., I'fivy (."iimicil, .Stuiirts L. C. Hep. :{.54.— Riu iiie v. 
 K(iuitiil)le, (i \..C..\. Sit— Aiiilior Miiriiie Ins. Co. & Allen. i:$ QLll. 1 . -Moitliants 
 .Miiriiie & Ross, 1 Q L.R. i'J-*,— Porter's Laws of Ins. iOl.— Nut. Mas. Ace. Assn v. 
 Burr (Ksaj», 2J Ins. L. .1. I2:{. -.May, 11)2 cl seq. 
 
 In Smith V. Preferred Mas. Mnt. Ace. Ass. (IS9-J>, .51 Fed. Ilep. ."i20, tlie arbitra- 
 tion clause was construed to refer only the (|nestion of amount of diimaite to 
 arbitration, and it was held, that it was no condition precedent, and could not be 
 pleaded in bur or abatement in a suit on the certitlcute. See also in/rn. 
 
 There can be no arbitration where the loss is total, as in Hosenwalil v. Plicrnix 
 Ins. Co. (ISSSi, M Hun. 172. 
 
 - 15 y.L H. 277, and see 111 tf- UM cl .■iti/., C.P., and Scott v. I'h.cnix S. 1{. ir)2, 
 
 ■' li» S.C.R, (K->. & see Quebec St. Ry. Co. & Corporation of tjuebec, l:f Q.L.R. 
 20.5. 
 
 It wassividin Whitney v. Nat. Mas. Ace, Ass. (1H0:J), .51 X. W. Rep. 1S4, that a 
 contract of accident insurance creatinjr a deliniti" k'nal oblijjalioii -for instance, to 
 pay a certain sum of money as indemnity for loss of time by reason of disal)ility to 
 follow business resulting from the accident— an aj,'recmenl to the elVect that the 
 rifrhts and obli^iations of the insurer and insure<l shall be determined by aibitralion 
 and tliat no action shall be maintained on the contract, is '.ot legally etiectnal to 
 bar such an action. 
 
 * Kill V. Hollister. 1 Wilson 129.— Thompson v. Charnock, S T.R. i:l(i. Ooldstone 
 V. OslKirne, 2 C. & P. .V>(l.— Street v. Ri;rl,y, <l Ves. S1.5.— Scott v. Avery, 8 K.\;h. 4-S7. 
 -Klliott V. Royal Ex. Ass. Co.. 2 Kxch. Cas. 237. ' May, 4W. 
 
 i 
 
 II 
 
 I 
 
 Hlii 
 
 i ;,i 
 
 ; ; 
 
 1 
 li 
 
 \ 
 
 
 i i 
 
636 
 
 INSURANCE LAW OF CANADA. 
 
 not be ousted, Coleridge, J., said in Scott v. Avery,' a case which 
 has been the subject ot much comment and many explanations : — 
 " 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 disputes at pleasure to public or private 
 tribunals." 
 
 Where in an action upon tire insurance policies the questions 
 in issue between the parties were not confined to matters of mere 
 account, but the defendants disputed their liability, and issues of 
 fraud, misrepresentation and concealment of facts were raised upon 
 the pleadings, the court was of opinion that an order, referring all 
 the issues in the action to a referee for enquiry and report, was 
 improperly made, and that the plaintiff was entitled to have a trial 
 in the ordinary way." 
 
 381. Where arbitration is held a condition precedent and 
 
 where it is not— Waiver of arbitration Tn Elliott v. Royal 
 
 Exchange Ass. O).,' the company pleaded, that the assured had 
 not submitted the matter in dispute to arbitration, as provided by 
 the policy, and the court held, on demurrer (Bramwell, J., dis- 
 senting, infra), " that the covenant was only a covenant to pay the 
 adjusted loss and that the plaintiff had no cause of action." 
 
 And in Caledonian Ins. Co. v, Gihnour,' also, "an award as to 
 damage," as required by the terms of the policy, was declared to 
 be " a condition precedent to bringing the action." 
 
 Bramwell, J., in Elliott v. Royal Exchange, supra, said : — " If 
 two persons, whether in the same or in a different deed from that 
 which creates the liability, agree to refer the matter upon which 
 the liability arises to arbitration, that agreement does not take 
 away the right of action. But, if the original agreement is not 
 simply to pay a sum of money, but that a sum of money shall be 
 paid if "something else" happens, and that "something else" is that 
 a third person shall settle the amount, — then, no cause of action 
 rrisos until the third person has so assessed the sum." 
 
 It has been held in Ontario, that an agreement to fix the 
 amount of loss by arbitration is not a condition preceilent to suit. 
 
 I 5 n.L.C. SU. I'orter'8 Laws of Ins. 201. 
 
 ■i Cliirry v. Uritish Am. Ass. Co., 12 F.H. 357, Cby. D. 
 
 3 2 Ex. 2;i7. •• H . L . (S. ), IStft, A . C . «.5. 
 
i 
 
 ARBITRATION. 
 
 637 
 
 unloj^s expressly so stipuliited,' that is, when the assured lias 
 suffered loss and commencos an action against the company, the 
 company cannot have the action stayed until the loss has heen 
 settled hy arbitration. 
 
 Where tlio policy provided, that no action should he sustain- 
 able until an award had been obtained from arbitrators at the 
 rerpiest of either party, tixing the amount of the claim, the court 
 decided that, in the absence of a request by the compain', the sub- 
 mission to arbitration was not a condition precedent to plaintiff's 
 right of action. - 
 
 The condition, by which the defendants in Mclntyre v. Nat. Ins. 
 Co:^ sought to defeat the action, provided that all disputes touch- 
 ing loss or damage should, after proof thereof be submitted to 
 arbitrators to determine the amount, but not the liiiljility, and that 
 an action against the company should not be sustainable until after 
 an award had been obtained iixing the amount, or unless such 
 action should be commenced within twelve months after the loss ; 
 and the defendants covenanted, in the body of the policy, to pay 
 the loss within sixty days after the loss had beeJi ascertained and 
 proved in accordance with the terms of the policy. It appeared 
 that the assured had furnished the detendants with proof of the 
 loss on the 5th April, to which the defendants made no objection 
 until the 11th June following, when they served a written reiiuest 
 for an arbitration upon the assured, who refused to arbitrate, and 
 the plaintiff, to whom the claim was assigned, brought this action : — 
 
 The court decided, that even if the condition was available as 
 ii defence, it had not been broken, as, in the absence of a request 
 to arbitrate within the sixty days, the loss must be considered as 
 "ascertained and proved" and the plaintiff, therefore, had a right 
 of action on the expiration of that period. 
 
 The courts in the United Stutes iiave frequently been appealed 
 lo in order to determii\e whether arl)itnitiou is, or is not, a condi- 
 tion precedent, or wlu'ther the right to demand an arbitration has 
 been attected, and bow far, by acts of either of the contracting 
 parties. The Anu'rican decisions, which have evidently been 
 
 ' IIukIu's ■. Loixloii Ass. Co., I O.K. 21Ki Q.H.I). , iilllnniiiLr tlio order of Aniioiir, 
 .1., ri'viTsiiij? tlio order of tlie Muster in Clmml)erH. Si'c also I'lridi v. .Natiotml Ins. 
 Co., I .V.H. S4, and Montmiinny Mut. ms. Co. iS: C.irbonneim, Id H.Fi. :i7."i, in/'rii. 
 
 - Hisliop V. Norwieli I'liion Fire Ins. ."soiiety. il.") N'ovu Seotia I,iuv Ueports lIC' ; 
 & see MontiniiKK.V Miit. Ins. Co. it Curlionneim, l(f IMi. 275, siijira. 
 
 '5 A H. 580. 
 
638 
 
 INSURANCE LAW OF CANADA. 
 
 arrived at after mature deliberation and due consideration of all 
 the circumstanei's bearing upon the question, di.scuss 8ome points 
 v.'hieh do not ajtpear, so far, to have been raised in Canadian 
 courts, and a reference to them may, therefore, prove of interest in 
 dealing with the subject matter of this chapter.' 
 
 ' The question of I lie award iiiidora submission to arbitration under various pro- 
 visions of policies of lire insurance lioinx a condition precedent to a riKlit of action 
 upon tlie policy, and tlic elFoct of a refusal on the part of assured to assent to a pro- 
 posed submission, has been considered by the Supreme Court of the Unite<l .States 
 in H'lniilton v. Home Ins. Co. (ISMT), 1H7 l'. .S. 'Mu, with the result that is embraced 
 in the followiuK declared rules in such cases : " A provision in a contract for the pay- 
 ment of money ui)on a contingency, that the amount to be paid shall l)e submitted to 
 arbitrators, whose award shall be final as to that amount, but shall not determine 
 the general question of liability, is undoubtedly valid. It the contract further pro- 
 vides, that no action upon it shall bi; maintained until after such an award, then, as 
 was adjudged in Hamilton v. Liverpool & London & tilobe Ins. Co., i;{() I'.S. 242. 
 and in many cases therein referred to, the award is a condition precedent to the 
 riglit of action. But, when no s\U'h coiulition is ex])ressed in the contract, or neces- 
 sarily to be imi)1ied from its terms, it is e(|ually well settled that the agreement for 
 suhniitlinu: the amount to arbitration is collateral and indej)endent, and that a 
 breach of this ajtreement, while it « ill support a separate action, cannot be i)leaded 
 in bar to an action on the principal contract. Roper v. London, 1 Kl. & Kl. 823 : 
 ("olliiis v. Locke, I App. Cas. (iTI ; l)aivson v. Kitztrerald. 1 K.x. 1). 2.")7 : Heed v. 
 Washington Ins. Co., i:W Mass. .572 ; .Seward v. Hocbester, lllfl .\.\'. 104; Birming- 
 ham Ins. Co. V. Palver, 12(i III. :i2!). :i:ts ; Crossley v. Connecticut Ins. Co., 27 Fed. Rep. 
 ■H(l. The rule of law upon the subject was well stated in Dawson v. Fitzgerald, by 
 Sir (icorge .lesscl. Master of the Rolls, who said : " There are two cases where such a 
 plea as the present'is successful ; lirst, where the actioi. can only be brought for the 
 sum named by the arbitrator : aecoinlly, where it is agreed that no action shall l)e 
 brought till there liiis been an arbitration, or that arbitration shall be a condition 
 lu'ccedent to the right of action. In all other cases, where there is a covenant to 
 refer, the covenants are distinct and collateral, and the plaint iir may sue on the tirst, 
 leaving tl'.' defendant "to bring an action for not referring" or (uniler a modern 
 English statute) "to slay the action till there has been an arbitration." 1 lOx. I). 2(>l). 
 Applying this test, it is quite clear, that the separate and indepeinU'iit provision in 
 the policy now before us, for subndtting to arbitration the amount of the loss, is a 
 <iistiiict and collateral agreement and was wrongly held by the Circuit Court to bar 
 this action." 
 
 A provision that no suit oi' action against the insurer " shall be sustained in any 
 court of law or chancery until after an award shall have been obtained" by arbi- 
 tration, "tlxing the amount" dui' after loss, was declared void in (iernian-.Vmer. Ins. 
 Co. V. Etherton (IMS)!), 2."> Neb. 50."), the ell'ect of such provision being to oust the 
 courts of their legiLimate Jurisdiction. 
 
 But in Hamilton v. L'pl & I.Mon iV (ilolie Ins. Co. (ISiK),, lltti t'.S. 242, unprn, an 
 appraisal, when recpiested by cither party, was held iv condition precedent. In this 
 case, the assured refused to submit to .iibitratioii, unless the insured would consent 
 in advance to dellne the legal powers and ihities of the appraisers, which the iiiMUier 
 was under no obligation to do, and tlieassurecl also solil the property before tlie 
 comiiletion of an award. I'nder these circumstances, the action whs declared nor 
 maintainable. 
 
 In Davis v. Anchor Mut. F. Ins. Co., (1 \. W. Rep. tls7 (IHI),-)), where the policy 
 provided that <lilVerences as to the amount of loss should, at the "written request of 
 either party," be submitted to arbitration, and that no action should be brought 
 
M'TT 
 
 f^ 
 
 ARBITRATION. 
 
 689 
 
 until after the award, arbitration, in tlie absence of a reiiuest tlierefor, was not a 
 condition precedent to an action.— And see Lawrence et al. v. Xiapara Fire Ins. Co., 
 37 N. Y. Suppl. 811 (IHUti). i App. Div. 207 ; but see contra Probst v. Am. Cen. Ins. Co., 
 2 Miss. App. Rep. 12?<0 (18!Xi>. 
 
 In Milw, Mech. Ins. Co. v. Stewart etal., 42 N. E. Rep. 290 (1895), where negoti- 
 ations as to the amount of loss liad taken place and the company refused to pay 
 until further proofs were furnished, but did not otter to submit tlie loss to arbitra- 
 tion, a suit Ijrought four months thereafter was not a violation of the condition as 
 toarbitration.— Ami a similar decision was rendered inSands v. IJwg-House Ins. Co., 
 26 Pittsburgh Leg. Journal ;il8(18(Hi). where the company denied both it' liability 
 and the amount of loss.— See also Union Ins. Co. of Cal. v. Barwick (IHOU), 54 X. W. 
 Uep. 519, for waiver of arbitration by denying liability. 
 
 Where a policy of tire insurance provides that, in case of loss and a faihire of 
 parties to agree on the amount thereof, appraisers shall be chosen, the company can 
 not demaiiil appraisal and, at the same time, deny its liability under the policy. This 
 was the opinion of the court expressed in Hickerson et al. v. Genuan-.\m. Ins. Co., 
 Do. v. Royal Ins. Co., Do. v. K.|uitable Ins. Co.. 25 Ins. L. J. 122 (W.Mi). 
 
 An insurance company, by denying its liability on the ground of a forfeiture of 
 the policy by reason of a breach of warranty by the insured, waives whatever right 
 it may have had to insist upon arbitration as a means of determining the amount of 
 the plantill's damage. Viilr Home Fire Ins. Co. v. Kennedy, (Ki X. W. Rep. 278 
 (189(i>. 
 
 Failure of the company, after demanding an appraisement of a fire loss at a given 
 time and place, to appear at the time or place designated by agent or otherwise, 
 without the intervention of any act of the insured, was held a waiver of its right to 
 appraisement in Xorthern Ass. Co. v. Samuels et al., 'M S. \V. Rep. 239 (1890).- And 
 failure of a company to jiay any attentioi\ to a re(iue8t for arbitration duly made, 
 will be construed a waiver. This was the decision rendered in McDowell v. .Ktiia 
 Ins. Co. ; Same v. Royal Ins. Co. ; Saiue v. I'hunix Ins. Co., 41 X. K. Rep. (1S95), 005, 
 
 A clause in an accident policy, providing for arbitration before action, is waived 
 where the company, after receiving a demand for the money, and a threat of action 
 therefor, made no rc(|uest for arbitration, and expressed its willingness to test the 
 matter in the courts :-t;rau v. Masons Fraternal Ace. Ass. of Am., ',i Detroit Legal 
 Xews 195 : 07 X. K. Rep. 540 (1890). 
 
 In Manch. F. Ins. Co. v. Simmons, 35 S. W. Rep. 722 (1890), the court was of 
 oninion, that where a policy of insurance provides that the estimate of the loss 
 in.'urred by the insured shall be made by the insured and the company, or, if they 
 disagree, by appraisers, the ascertainment of the amount of loss by the appraisers 
 is not I) condition iirecedent to a recovery on the policy, except in case of actual dis- 
 agrietnent ; and the company cannot. Iiy declining or neglecting to take any action 
 after proof of loss, urge as a bar lo an action for recovery under the policy, that the 
 amount of loss has not been agreed upon or llxed by appraisers. 
 
 In .i;tna liis. Co. v. McLeail »Y a/., 25 Ins. L. .1. titiit (1890), it was decided, that a 
 clause providing for "arbitrators nnitually chosen, whose award in writing shall be 
 binding on the parties," is inoperative, when no arbitrators are agreed upon, and is 
 too indetlnlle to make arbitration a condition pi'eccdent. 
 
 In the absenci' of any disagreenieiil as to 'he amount of loss or rei|\iest for s\ili- 
 misslon to appraisers, the company cannot plead failure of such submission, as said 
 in Aloyer v. Sun Ins. Odice, 35 .Vll. Rep. 221 (18!H)), supra S 370, p. 010, ii. .3, and S 372 
 II. 015, note. 
 
 In Keefe v, Xat. .\cc. Soc. 38 X. Y. Suppl. 854 ; 4 App. Div. 392 (1890), it was held, 
 that a jirovision. that the insured shall submit to arbitration any dilTcrences that 
 may arise as to his riglits under it, is void as ousting the courts of .jurisdiction. 
 
 The Supreme Court of Cal. held in Case v. Maiiuf. F. & M. Ins. (Jo. (18,si>), H2 Cal. 
 203, that no right of arbitration exists under a lire insurance poli(y when the stipu. 
 Irttlon for arbitration does not detlnitely llx the number of arbitrators, nor provide a 
 
 ■•lil 
 
 i ill 
 
nil ' 
 
 640 
 
 INSURANCE LAW OF CANADA. 
 
 In Smithy. City of London Ins. Co.,^ the company, afteraction, 
 under the 16th statutory condition, demanded an arbitration as to 
 the value of the premises destroyed, the result of which was an 
 award finding the value to have been $2500, and the loss payable 
 to the plaintiff |1700, while the jury at the trial of the action 
 found that the plaintiff had truly represented the property as 
 having been worth $3500, and estimated his loss at that amount : — 
 
 The court declared that, there having been no misrepresenta- 
 tion on the plaintiff's part, no mutual mistake, and the defendants 
 not having proved that they granted the policy in consequence of 
 any mistake on their part, the parties were ad idem, and the plain • 
 tiff was entitled to judgment for the amount of the award. 
 
 "Where the plaintiffs had insured their ship with the de- 
 fendants and, a loss having occurred, the matter was submitted to 
 arbitrators and atniables compositeurs appointed, the defendants 
 contended that the following clause : " It is expressly understood 
 that this appraisement is for the purpose of ascertaining and fixing 
 the amount of said loss and damage only, to the property here- 
 after described, and shall not determine any other right or rights 
 
 mode of selection ; and arbltriition is not u condition precedent, unless demanded 
 within a reasonable time and before ri^bt of action has become complete by the 
 lapse of the time prescribed in the policy. 
 
 In Vanglndertaelen v. Phtenix Ins. Co. of Brooklyn (1802), 82 Wis. 112, it was 
 held, that an action commenced three montlis after proofs had been received with- 
 out objection and no suggestion of arbitration wa« made, could not be defeated on 
 the ground that there had been no arbitration as provided for by the policy. The 
 court said : "The arbitration was only provided for in case tlie parties failed to agree. 
 In case they disagreed, and the amount of loss was submitted to urlillrators, then 
 the same was not to be payable until determined liy their award, even though it 
 should not lie made until weeks, or even months, after the expiration of the sixty 
 days ; and the provision, making such award a condition precedent to the commence- 
 ment of a suit upon the policy, jiresupposes such failure to ajiree and conse(|uent 
 arbitration. This is but another application of the rule re()uiring a strict construc- 
 tion to prevent a forfeiture. 
 
 Where there is no ditl'ercnco as to the amount of loss and neither party remiests 
 an appraisement or arbitration, as appeared to be the case in Capitol Ins. Co. v, 
 Wallace (1892), 18 Kan. llKt, it is n't necessary that there should be any appraisement 
 or arbitration, before tl;c assured has the right to commence an action. 
 
 In Whitney v. Nat. Mas. Ace. Ass'n of Deamoines (18!):i), .")4 N. W. Rep. 184, the 
 court said, that an agreement to the etFeet that the rights and obligations of the 
 parties shall be determined l)y arbitration and that no action shall bo maintained on 
 the contract, is not legally ellectuiil to l)ar sucli an action. 
 
 Where the company, after being furnished with proofs of loss, made no effort to 
 agree with the Insured on the amount of loss, l)ut demanded appraisers, the insured 
 might commence an action on the policy without such appraisement or arbitration. 
 
 See Hoylo et al. v. Ilamburg-Uremen Fire Ins. Co., 24 Ins. L. .1. 000 (189,5). 
 
 1 14 A. U. a2a -See S. C. 11 O. K. :J8. 
 
ARUITRATION. 
 
 (341 
 
 of I'ither party to tliis agreement," liad not the ottect of relieving 
 the [ihiintiffs from any of the eonditions of the policy. It was 
 (leeided tliat. wliiitevor the efteet of the clanse (pioted, the fact 
 that the <lefendants sultmitted the matter to arbitration was an 
 admission that the tire had taken place and that a loss had been 
 snftered hy the plaintiffs, and that this admission su[»plied the 
 notice and proof of loss called tor hy the conditions of the policy.' 
 After an action liad Iteen commenced on a policy of insurance, 
 the defendants gave notii'O of arbitration under the statutory con- 
 dition, when the court made an order that, on tlie defenilaiite 
 abandoning aH defences and admitting their liability under the 
 p ilicy sued on, all proceedings in the action should be stayed, the 
 plaintili to sign tinal judgment and proceed in the action for the 
 amount which might be awai'deil him. together with the costs of 
 the action, etc. And it was further ordered, without the consent 
 of the defendants, that either party, after the making of the award, 
 might apply to a judge in chambers in respect of the payment of 
 the costs of tlie reference and award. The arl)itrators awarded to 
 the i)laintirt the full amount of his claim. On application to Rose, 
 J.,- an ()rder was made directing the defendants to pay the costs 
 of the reference and award. On appeal to tlie Divisional Court, 
 Cameron. C. .T., was of opinion, that tlie appeal sliould be allowed, 
 there being no Jurisdiction over the costs on such a reference ; and 
 (ialt, J., that it should be dismissed. The court being ecpuilly 
 divided, tlie judgment was affirmed.' 
 
 I 
 
 i ' ' 
 
 1 Rich. & Ont. Nftvig'n Co. v. Conim. Union Ass. Co., R. J. Q., 3 Q, B. 410. 
 
 ■^ 7 O. R. 105. :' Hughes v. Hand in Hand Ins. Co., 7 O. R. 015, C. P. D. 
 
 In .Johnson v. Amer. Ins. Co. (I8S0), 41 Minn. ISW, an arbitration reciuusted by 
 the company pursuant to the contract, solely as to the amount of loss, but not to 
 decide the liability of the insurer, was held not to debar the latter from thereafter 
 bringing in question the legal ellect or validity of the alleged contract, the court 
 adding :—" Considerations of expediency might well prompt the parties to agree 
 upon a speedy examination and appraisal by arbitrators as to the amount of the loss 
 merely, at a time and under circumstances which might be most favorable for such 
 purposes, without waiting until a determination could be secured as to the legal 
 rights .'uul obligations of the parties under the contract." 
 
 In Caledonian Ins. Co. v. Traub et al., 25 Ins. L. J, 701 (WXi), it was dceidi'd that, 
 where one of two appraisers ceased to act, and the appraisement was completed by 
 the other appraiser and the umpire, the award was not in accordance with the 
 policy. But the mere fact, that the umpire was chosen after the appraisement was 
 liegun, did not invalidati' the award. It was also held in this case, that the assured 
 cannot maintain an action if he causes a failure of appraisement ; and, further, that 
 in an action on the policy, the appraisement caimot be proved by oral evidence, 
 unless the absence of the paper is accounted for, 
 
 41 
 
 I , 
 
m/.'t 
 
 ■■■:■ M 
 
 
 642 
 
 INSURANCE LAW OF CANADA. 
 
 382. Powers and duties of appraisers— Costs of appraise- 
 ment. — Where a church was insured under a three years' {tolicy on 
 Novemher 14th, 1885, and was destroyed by tire May 31st, 1888, the 
 evidence showed, tliat the insurance company admitted the loss, 
 but requi.'ed the damages to be proved, ajid a submission to 
 appraisers was entered into by the parties, in which it was provided 
 that " the award made by them (the appraisers) or any two of 
 them, shall be binding upon both of said parties as to the amount of 
 such thimage to said insured property, but shall not determine any 
 question touching the legal liability of said company," etc. Two 
 of the appraisers joined in an award giving the insured the full 
 amount clainu-d. and ordered the company to pay the costs of the 
 reference and award. The company reliised to pay any costs over 
 and above half the arbitrators' fees : — The court held (affirming the 
 Master in Chambers), that 11. S. O. (1887), c. 1G7, s. 114," was 
 apiilicabic to the policy in (picstii)n, and that the legislature 
 int'iided by tlie use of the words, •' or otherwise in force in Ontario 
 with respect to any jiroperty therein." that section to be ai ilicable 
 to all policies existing at the time the Act came into force, and 
 that costs were i)roperly awarded un(h;r sub-section 10 of that 
 section.' 
 
 In Jli'jrard v. Scollisli Ciiinii d' yallmud Iiisardin-e C'linpanij, 
 the plaiiilitl claimed from defendant the sum of i!?GoJ].G7, viz. SHOO 
 for his i'L'Vr. as appraisiT and valuator acting tor the defendants in 
 reference to a loss by tire sustained by the tirip of Kearney iSrothers 
 in October, 1896, ami !?lt")3.()7 for expenses incurrt'd by plaintiff in 
 connection with such services. The delcndants tciideri'd S:][)0 in 
 lull satisfaction of plaintiffs claim. The facts, as they appeared 
 to the court, were that plaintiff was a wholesale tea merchant doing 
 a large business in Montreal. lie had first refused to act as defen- 
 
 The assured in Sling v. Xiit. Asss. Co. of Ireland (1801), 7 Utah HI, was ae'd rn 
 to be limited in his ri^ht of recovery hy the award of appraisers, the J.iistv ' ro 
 given the latter by the company's agent having l)een on too narrow a hmW 
 
 The award made by appraisers was set aside in Uradsliaw v. Agr. Ir:: !,'. lyi 
 Wtown (ISOU), 1,')7 N. V. l;i7, on the ground that the appraiser selected ly t ;t ■ 
 pany was not "disinterested." 
 
 A stipulation for arbitration, which does not provide for submitting the matters 
 in dispute to a particular person or trilmnal, but to one or more persons, is revocable 
 by either party, and will not oust the jurisdiction of the courts having cogni/anccof 
 the subject of the controversy. Vide Home F. Ins. Co. v. Kennedy, lift \. W. Uep. 
 
 ;i7H(lWM», .SK/ITO. 
 
 ' Re St. J'hillips Church, Weston, & Glasgow k liondon Ins. Co., 17 O.U. U5, iind 
 see Anchor Marine Ins. Co. v. Corhett, 9 S.C.R. 79. 
 
AUlllTRATIOX. 
 
 043 
 
 daiits' apiirairiiT in the matter, but was persuaded to aceupt tlie 
 ottieo l)v 1! promise of beiiuij well paid tor his services. The work 
 exteiiik'd from the 17th October until the 7th Xovembcr. It 
 appeared that plaintiff luid discharged his duties tiiithfiilly ami 
 with great zeal for the party he represented. It was in his busiest 
 season, an<l he had to neglect liis own business to a considerable 
 extent. According to the rate usually paitl to merchants, acting 
 as experts in the valuation ot' goods injured by tire, the sum of 
 $500 was not more than he was entitled to. It further ajipeared. 
 that defendants had tendered plaintiti §oO<t previous to the insti- 
 tution ot the action in full satisfaction of his feef. and expenses. 
 TIk; court was of opinion that this tender was insufHcient. as plain- 
 titl was entitled to his expenses in addition to the §500, and judg- 
 uient was, thcri'tore, rendered in favoi' of the plaintiti for the 
 amount denuinded.' 
 
 
 e'd r-r, 
 
 ' Superior Court, Montreal, 15 May, ISit", not yet rt'i)ortf<l. S«?e iiii'rn S :t!)|. 
 
 In Hiin^for Savings Uanli v. Xia.narii F. Ins. Co. (ISitJ), So Me. tiS, it was mutually 
 agreed that the damage sliould l)e "asecrtained and estimated" liy eompeteni and 
 disinterested appraisers selected with sperMal reference to iheir kuowleilne, skill 
 and experience in regard to the subject matter. The court said :— " This duty is lo he 
 performed by the appraisers mainly by the aid of a personal examination of the 
 premises and an ai>plieation of their personal knowledge. 'I'hey are not expected tn 
 hold a formal session of court to determine an entire controversy after hearing 
 pleadings, evidence and argument. Their proceedings resemble more the process of 
 taking expert testimony. Whether mere valuers or appraisers, thus ap])oinled for 
 such a purpose, can be deemed arl)itrati)rs in any ))roper sense or for any purpose, 
 there is no occasion to decide. The a\ithorities are not in harmony upon the subject. 
 See Mor.sc on Arbitration, US, 12, aud cases cited. It is not necessary to follow the 
 ditl'ereut courts in their ingenious efforts to trace, for all cases, a line of distimlion 
 between a meiv api)raisement and an ordinary submission lo arbitration. The 
 result nuy be that such ajjpraisers are properly considered arbitrators foi' sonu' pui- 
 poses, bm not in all respects. All are invested with i/i/as/. judicial functions, which 
 nuist be discharged with absolute impartiality, willioul the im))roper interference ot 
 either ))ait, or uiulue inlluence from any source. Ihit appraisers may be said lo act 
 ill the two-fold capacity of arbitrators and experts. In the cliaracter of experts, they 
 not only give efl'ect to opinion based directly on I heir personal ex))''rien(e and know 
 ledge, but also opinions founded in some measure upon information which may not 
 be so direct and original as to be competent in itself as |)rimary evidence. .V wit nes.s 
 called as au e.\i)ert is expected, before testifying, lo refi'esh his nu'incuy and conlirm 
 his judgment by an examinalion of authorities and e(Uiference with other expeiMs, 
 The umpire did precisely this and no more in tlu' case at bar. After making an 
 exaniiinition of the premises and eeitaiu estimates of liis own, he made eni|uiiy of 
 an experienced and disinterested painter respecting the cost of painting. His con- 
 clusions may have l)een all'eeted and modilied to some extent by the information 
 thus obtained, but he declares that his report correctly represented his own .jmlg- 
 nient. He was not only unconscious of any impropriety in .seeking this information, 
 hut was evidently engaged in a careful and conscientious ed'ort to reach a .jusl and 
 correct appraisal. So far from being impiopei- and illegal, iiis conduct was entirely 
 praiseworthy. Any rule, which would prohibit an appraiser from thus i|ualilying 
 
644 
 
 INSURANCB LAW OP CANADA. 
 
 hiiii.self to do justice betweon the parties, so f.ir from beiiiK au aid in the ascertiiiii- 
 ment of truth, would he iin essential obstacle to it." 
 
 It w;iH said in Harrison v. German- Am. Fire Ins. Co., 07 Fed. Rep. o7" (lHi).">), tliat 
 a stipulation, that no agent shall be lield to have waived any of the conditions 
 of tlie policy, unless such waiver shall be endorsed thereon in writinj?, docs n)t apply 
 to conditions to bo performed after the loss is incurred ; and, therefore, an adjuster 
 can waive a provision niakin<; arbitration in accordance with the terms of the policy 
 a condition precedent to suit, by maliins a diderent agreement for arbitration. 
 
 ■t 1 " 
 
 1:1 1 
 
Ill 
 
 i 
 
 CHAPTER XX. 
 
 SUICIDE AND DEATH BY THE HANDS OF JUSTICE OR IN VIOLATION 
 
 OF LAW. 
 
 3K3. .TfHISlMU'DKNCK ON SUIl'IDK IX 
 (!EXl;liAI, AND TIIK KKKKCT OF UK- 
 8TBICTIN(i I'ROVISIONS IN TIIK I'OI.ICV. 
 
 :W. Dkatii hy thk hands of 
 
 .irsTIlK OK I.N VIOLATION OF I.WV. 
 
 383. Jurisprudence on suicide in greneral and the effect of 
 restricting: provisions in the policy. — Inrfuraiico ottectod l)y a 
 
 person on his own life is void if lie die In* tlie hands of justice, by 
 duelling, or by suicide.' 
 
 Upon the question of voluntary suicide," intentionally com- 
 mitted by a sane man in the possession of his faculties, knowing 
 how to adopt means to ends and conscious of the immorality of the 
 act, there is not any difference of opinion, and all authorities agree 
 that such a suicide is within the exemption and that the act voids 
 the policy. 
 
 1 C.C.L.C. 2.iit;<.-Ellis, W>, ;?, II. 1. mr., n. l : I niiuh U. Kil, X.S. Holland v. 
 Disney : 2 Alan, rm: Anji. iS!». 
 
 - An artk'l"' wliieli npprarod in tlie Insnranco & Finance Cln'oni<'le. vol. xvii, p. 
 lis, under tlie headinj; of "The snicide i|uestioii aiiain," points out lliat self- 
 ileslrnetion anionji' insured in Atneriean companies has nialerially increased durini; 
 the last fow years, and that this is evidently to a ^rreat extent due to the fact that 
 several of the most prominent companies have of late yeurs extended their policy 
 conditions in the direction of liherality liy makinic them incontestable, exce])tiii^ for 
 failure to pay preniiunis as slii)ulated, after two years fnim date of issue, and that, 
 eonse(|uently, snicide is a risk assumed hy the insurer. The article ;j;oes on to show 
 that, altlioujj;h it has iiecn argued in ijood faith thai men are not likely to insure 
 with the precon<'eived <li>si;jrn of deliherately terminating; their own lives at the end 
 of a two-year iieriod, and that, hence, the risk is a merely nominal one ; yet, experi- 
 ence would seem to prove the contrary to l)e true, fur the records, so far as made 
 known, show the period immediately following the lirst two years of the jwlicy life to 
 ))resent a most dcci<led iiu're;!se in the peiventaiie of self-destruction, as compared 
 with other causes. Continuinjj, the articlc(|Uote<l says : " We are all familiar with 
 the old argument, which has so frequently formed the liasis of court de •isions, that 
 no really sane person will conunit suicide, and that the kind of insanity or mental 
 aherration, which leads to the act, is really a disease, and. therefore, that the insur- 
 inii company ought to he held liahle, as in the case of other diseases which cause 
 death. There is, however, ahundant evidence wiiich goes to show that both the 
 views above expressed are erroneous." I'ointinji out that soinecomi)anies endeavor 
 to avoid this "real and increasingly grave danger" by agreeing in case of suicide to 
 
 !;■'! 
 
 il 
 
 1 I 
 ' I 
 
^ 
 
 
 mm 
 
 I 
 
 1: ■ :-^i 
 
 |s 
 
 646 
 
 INSURANCE LAW OF CANADA. 
 
 Ami all the aijfhoritie8 likewise agree that an accidental 
 death, as by taking poison l)y mistake, or shooting oneself with a 
 pistol supposing it not to be loaded, or falling from a building, or 
 death happening in any way by the unintended act of the party 
 dying h not within the exemption and does not void the policy. 
 
 But whether suicide by an insane man is also Avithin the 
 exemption, has been a question in dispute,' and u[)on this tvv(» 
 prominent and different doctrines have been maintained. 
 
 On the one hand, it is maintained tliat, if the act be volun- 
 tarily done in j)ursuance of an intelligent purpose and intentionally 
 and intelligently carried out by the jtroper adaptation of means to 
 ends, it is suicide on the part of the insured or death by his own 
 liands, although insanity exists to such an extent that he may not 
 be able to appreciate tlie moral (puilities of the act. 
 
 On the other hand, it is maintained with equal rigor that, 
 however intelligently the act may be done, it at the time the will 
 be overpowered by an uncontrollable impulse, t>r the insured be 
 unable to appreciate the moral character of the act, it is not with- 
 in the meaning of the provision. - 
 
 refund the Kross prciiiiiiins paid in, ( ride iiil'rn, p. O.tO, note), while others agree lo pay 
 the accrued reserve on tlie policy, whidi seems to be just and reasoniihly liberal, the 
 article says ill conclusion : —"One of the reasons which have induced companies to 
 treat suicide as incontestable under the twoyears'liinitation has been the numerous 
 verdicts of juries and the decisions of courts which have pronounced self-destruction 
 to be the act of an unsound and constructively diseased mind. Mesides this, some 
 states, notably Missouri, oi'(/(> («//vj p. ()l!h, have enacted laws declaring that com- 
 panies shall be held fully liable within their jui'isdiction for suicide, whatever the 
 form of the policy contract, and the co\irls have sustained the law. Like many 
 other evils connected with lite insurance, the evil here considered is apparent, but 
 the best remedy is dilllcult to devise and api)ly. Perhaps the most feasible way out 
 lies in an agreement to pay the beneticiary the reserve value of the i)olicy as likely to 
 disarm hostile legislation and appeal to the sense of justice supposed to control 
 court decisions." 
 
 ' The clause in a policy exempting the company from liability in case of suicide 
 has been held by the Supreme Court of the United States, in Aec. Ins. Uo. v. Crandal 
 (ls,S7) 120 U.S. .5:^7; and Ureasted v. Farmers Loan & Trust Co., 4 Hill 73, not to 
 apply to suicide while insane, if such a provision do' not contain the words "' sane 
 or insane," the court repeating the words used by Mr. .Justice Nelson, when Chief 
 .Justice of New York, said:— "Self-destruction by a fellow-being bereft of reason 
 can with no more projirioty be ascribed to the act of his own hand than to the 
 deadly instrument that may have been used by him for the purpose, and was no 
 more his act in the sense of the law than if lie h.ad been impelled by irresistible 
 power. 
 
 -' For the rule that the exception (hjcs not cover voluntary self-destruction where 
 insured does not understand the moral asjicct and character of the act, .see an 
 examination of the authorities in Blackstone v. Standard Co., 74 Mich. .")93 (1889). 
 
^ 
 
 SUICIDE AND DKATIl UY THE HANDS OF JUSTICE, ETC. 
 
 (;47 
 
 Wlicro a iiolii'v oxocpts suicide " siiiit' or insane," tin- t erm 
 iiirhules all cases ofseU-destriictioii not accidental.' 
 
 ' Sei- cases in Cuoke on Lifo Ins. S !•(• 
 
 The fxci'ntirin lis to nonliability of a life assurance company in llic cveni of t!ie 
 assured (ly inn l>y his own hand, "sane or insane," has heen discussed hy the .\e\v 
 York C'onrt of Appeals in t lie case of Oe GoKorza v. Knickerbocker Life Ins. Co. 
 ( lUTi")). ()."i N , N' . •J.W'l. This ease has been accepted as authority by the I'niled States 
 courts. When rendering .jmlj^nicnt, Heynolds, C..I., for the court, said : -" It i- now 
 lo be reL;ardcd as a settled law <if tills conn, 'y and of Iln^laml, that a clanse in a 
 policy of life insurance excniptiiii; the iiisur r 'roni liability if the a-isurcd di liy his 
 own hanil, has rcfiTcnii' to an intelligent or .iluntary act. and not a suicide coni- 
 MUtted by a party in a stare of mental derai.nemcnt , so ijreat tli.il the act of si'If- 
 di-slruction is to be rc|/arded as wholly involuntary. The ipiestion is, whctln-r the 
 addition of the words " sane or insane '" is to he considered of any legal ed'cct. In all 
 cases heretofore considered by the courts, so lav as we are advised, save and except 
 those to be hereafter referreil to. the words "sane or insane" were not written in the 
 policy. .Such were the leading Knglish cases of Morradaile v. H\inter ("i .\1, tV tJ. li;!!*), 
 ('lift V. Sell wabe CK'. H. HIT), and all the cases in this slate and in some otln-rs of 
 our sister slates. .Vnd in all thcsecascsir is to be observed ih.it tlie imirls c.in 
 sidered that t he words "dying by his own hand" coulil iiol have a literal appliiat ion, 
 for. if so, a voluntary death by drowning, or iiy taking poison, would not avoid the 
 policy any more than a death occasioneil by a pistol shot, by the hand of a madman, 
 moved by an irresistible insane impiilsi;. Hut the exceptions, whivli the courts have 
 engrafted upon the meaning of the words eniployeil, rest upon the ground that ilie 
 excepted cases could not have been within the meaning of the parties to the policy. 
 It is, therefore, held that a death by drowning, or by poison, is a death by tin- hand 
 of the assured, and also that a death from a pistol shot, dolivered fiMiii liic hand of 
 I he assured, is not a death by his own hand if at the time he was bereft of rea-^on 
 and the act was involuntary. We have, therefore, only toconsidei the interpretation 
 to be given to the language of the contract of insurance, for no question is ntade but 
 that it was fully understood and agreed toby both parties. 
 
 It can scarcely be doubted that an insurer of the life of a person may by apt 
 language guard liimself from liability for all disasters if the exemption does not 
 contravene public jiolicy. He may )iioviile that, if the assured shall die of the small- 
 pox, or any other specilied disease of the liody, he would not be liable, and there 
 appears to be no reason why he may not guard himseir against liability If di'ath 
 results from any disease of the mind. Indeed, it is said by Hapallo, .1., in \'aiiziiidt 
 v. Mutual Henefll Life Ins. t^o. (."w X. Y. Hi!*), that "no rational doiilit can he enter- 
 tained that a condition exempting the insurers from liability in case of the death of 
 the assured liy his own hand, whether sane or insane, would be valid if mutually 
 agreed ujioii between the insurer and the insured," and he then, in sulisiance, adds 
 that, " if iKithing is said with respect to insanity, ilie result is that a jiariy does not 
 ■ die by his own liand,' if his de.itli haiipens from the involuntary act of a madiiia!!. " 
 This ii.'W of the ((Ucstion is but a very concise .iiid accui'aie stalemenl of the i iw as 
 announced in cases jirevionsly ad.judged. \o reason has been assigneil and, we 
 think, none can be, if a party insuring his life, shall argue that in case his death shall 
 result from the mental disease of insanity the insurers shall not be liable, 'i'iie 
 words "insane" or "insanity" ordinarily imply every degr. e of the nnsoiindiiess if 
 mind, and in this ease we assume that the assured was in the very last degree mad 
 or insane, so that the mere act of self-destruction was wholly involuntary." The 
 court tlien reviewed some of the leading cases and concluded as follows : - " \Vv 
 prefer to place our decision upon the ground that the words of the proviso in tlie 
 policy before us, by ])lain rules of interpretation, exempt tlu' insurer from liability. 
 That this language, in view of the previous decisions, was inserted for a pur])ose 
 
|i ' v< 
 
 ))4H 
 
 INSURANCE LAW OF CANADA. 
 
 Tlic ([iiostion does not sei'in to havf come bet'oro the courts in 
 ('luiiida, and when it arises it will have to be deeideil in the lijjht 
 of the jnrisprudence of other eountries. 
 
 Tile general doctrine in the United States is that, where perfor- 
 numee by the insnrer is conditioned on the death ot the insured, 
 death by suicide is included ' ; but the law in (Quebec is different.- 
 
 In accident iiolicies containintr a stipulation against "suicide," 
 the recent tlecisions, as has been pointed out, limit the term to 
 '"sane suiciile " aJid some companies add to the term "sui(!ide" the 
 words ••sane or insani','' thus excluding from the risk self- 
 destruction under any circumstances. 
 
 ciinnot 1k' flonhled, iimi that it was iiixri'ed to hv liotli tlu' insiii-i'il mid tlie iiisuifr is 
 not (|ii("<ti()iu'(l. iinil timl it is a provision allowed by law no one (U'iii"s. Wo uro to 
 
 say fi 1 ilu'sc words \vl\at the ii;iitit's must liavc iiitcinli'd, and we cannot piopi-rly 
 
 say iliat adililiona! words, liavinu; no nicanin;r. woiv inserted in ihc coniraet, and if 
 they mean auvtliin};, il is .jnst what flie words eoninionly import, and lliat is, if 
 death ensues from any physical movement of tlio hand or body of the assured, |)ro- 
 ceedin^: from a p.irfial or total eclipse of the mind, thi' insurer koi's free." 
 
 In I he opinio?) of the court in the case of Uiwlow v. Herkslnre i4ire Ins. ('o.. ii;! 
 U.S. i-i|, Il was said : -"The iiMurers have sou;j;lit to avoid alto^^elher the risk of 
 suicide, "sane or insane." \f they have succeeded in doinif so. it is our duty to i;ive 
 elfei't to th,' ci>ntra(^!, as neil lier the policy or tlie i:iw. nor sound morals, forbid them 
 to make il. If they are at liberty to stipul.Ui' au^iinst hazardous occupations, un- 
 healthy elimiles, or death hy the hands of the law, or in eonseipituice of injuries 
 received when intoxicated, surely, it is competent for them to stipulate against 
 intentional self-destruction, whether it be the voluntary act of an accountable moral 
 agent or not. It is not perceivable why they cannot limit their liability, if the 
 assured i;. in proper i lu^uatie told of the extent of tiic lindtation, and it is not aiiainsl 
 public jiolicy. 
 
 Ill liilliii.M-- V. Ace. Ins. I'.), id' N A. iisit:;). iW \'t. 7S, also, t hi assured had com- 
 niitti'd suicide, and th,' plaintiir conteniled that " deceased was so ins.ine when he 
 took his life, that he did not know what he was doinu. nor the ell'ect of his acts." 
 The policy si ii)ulatcd ajjainst "suicide, sane or insane." T'he court declared the 
 inHUicrs wen" perfectly Justilied in thus liniitini; their li.ibility and added, iufmiHo : 
 — " It is oirdufy to const ru.' the cuniracf made by the parties, not contract for them. 
 The better < oiisi i-uct ion to Kive a term or phiase in a comracl is the one aceordimr to 
 its ordinary ;nid common meanini;. ;is m.uikind would generally undcu'sticid il. The 
 insurer evi<lenlly was unwillini;- to incur ilie perils of insanity, an<l ihis clause, liniii- 
 iufl its liability, was inserted for its iirotecl ion. !r was a valid eoiuracl. 'I'he 
 insurer had the ri.^ht to say that it would not hold itself responsible for the acts of 
 the assured c immitted when insane, and the question is, can the court, with such ,i 
 contract before it, attempt to measure the deijree of insanity? The construction 
 conteniled for by the Ivneticiary remters the words • sane or insane' imniaterinl, sur- 
 plu.sa'.;e. of no force whatever. They must have been inserteil for some i)urposc. 
 I''elonious suicide was not alone in the cotil< uiplation of the p.irties to the contrail . 
 If it hail been, there was no niv'i'ssity of addim; an> tiling lo the .Lcencr.il words." 
 
 In loncliision the court said thai, if il were to adopt the construction of the 
 contrut advanced by plaintill', it would be "addiiivc to it an element not a'^reed to 
 by the j)arl ies. " 
 
 ' See. cases in Cooke on Life Ins., .;! 11, -' C.C.L.C. i")!'"', axpni p. (ilo. 
 
 ■' See mti)rif. 
 
in 
 
 111' 
 ..f 
 
 •li a 
 :ion 
 
 ■iUI- 
 
 SUICIDE AND DEATH HY THE HANDS OF Jl'STI'^E, ETC. 
 
 t;40 
 
 The proot liort i>ii tho inrtiiror aiul, it' the death is explicnhh' in 
 f\V(» ways, tho {iresmnittioii is apiiiist suicide.' 
 
 As said almve, where suioide is stipulated against, or ina(U^ a 
 oause ot t'orteituro by hiw, it is Hinited to eases of intentional selt- 
 destruetion, and eases of aeeident and un('ontrolIal)le impulse are 
 exehided. It is an act by the insured tliat is eontenijthited, and it 
 implies a will behind the act; in other words, a voluntury act. 
 The weight of authority is, moreover, to the ettect that the 
 expression '• die by his own hand " involves not (»niy the idea that 
 the act of self-destruction is voluntary, but that it is acc(tmpanled 
 with a disability to distinguish right from wrong, or to understand 
 its moral aspect and character. Thus, if the assured voluntarily kills 
 himself by shooting liimself through the heart, firmly believing 
 that the ai't of pulling the trigger is nioially right, though knowing 
 that his deatli will in the natural course of things result fr-m such 
 act, the contract according to this view is not to be avoided." 
 
 In u vi'ry recent decision in the United States, rendered upon 
 the Missouri Statute, which provides •• that in all suits upon 
 '• policies of insurance on life heroatter issued by any company 
 •• doing business in Missouri it shall be no defence that the assured 
 •• committed suicide, miless it shall be shown to the satisfaction ot 
 •" the court or jury trying the cause that tlu' assured ( oiitemplated 
 •' suicide at the time he made his application for the policy and 
 •' any sti[iutation to the contrary in the policy shall be void,"" was 
 intended to establish a general rule applicable to t-be business of 
 life insurance and not merel}' to limit the powers of a particular 
 class of companies.' 
 
 ' For ii resuiiu' 1)1' t lie I'lii^ilisli mill Aiin'ritaii la-M-s in puinl sim- rortir's Laws of 
 Ins. 1-Js, ,y ,sv(/. ; Slay, :!07. 
 
 Tliat Diirdeii of proof ol' suiciilc is on tlu' party allt'nin;^; it, was also iiili'il in llak' 
 V. Life Inil. & Inv. Co., (i:i X, \V. Ut-p. (ISlK")), IIOS ; and .Miit. Jafo In-. Co. v. Simpson, 
 iSS. \V. Kup. (IS!).")), (■';!7. 
 
 See also the very recent American I'ase of Cro/ier v. lIoin.> I, id- Ins. Co., 20 1..X. 
 1(')S, anil authorities liteil tlieri', where the court Jiointcd onl thai the terni "shot 
 himself, " as used in the proofs of ileal h, does not nei-essarily mean ■" >uii'iili ."' 
 
 - Ill snjiport of the view that the exii.plijiii covers all cases of intentional self- 
 destruclion, see the followiiiu; decisions of the courts of Hn^thiinl, New "I'oik and 
 Massachusetts : — I{)rraiIaile V. Hunter, a Scott X.R. 4IS (IS4:i). — Dorniay v. IJoria- 
 daile, 1(1 lieavaii ;W."> U^'")-— *^'lift v. Schwahe, :( C.H. l:i7 (ISI(i). Meachani v. N. V. 
 State Mut. Ueii. Ass., 120 X. Y. 2:i7 (lsi)0). -Dean v. An. .Mut. Assoc, 1 Allen (.Alass.i 
 !Hi (1S()2). 
 
 • Kiiij^hts Templars iJt .Masons Life Iiideniniiy Co. v. Berry (1S!)2), 4 f.S. A]))). 
 ;!."):) ; and .^ee Ileach on Ins., vol. 1, p. 5!), ij 71. 
 
 For other recent American decisions see : — Keller v. Trav. Ins. Co., '11 Ins. L. J. 
 
 II 
 
 I <: 
 
t 
 
 660 
 
 INSURANCE LAW OF CANADA. 
 
 The quostioii (A' bona fide intorosts of third parties caine up in an 
 English t'ase. Tho facts were as follows: — An insurant'c company 
 advanced money to one W. on a mortijagc of real security and 
 conditioneil on liis effecting a policy on liis lif(i in their otKc^e for 
 the amount ot the loan, which policy was deposited with the com- 
 pany as <'ollateral security. The policy contained a condition that, 
 if the insured died by his own hands, hy the hands of justice, (M* 
 by duelling, the policy should be void, ex(!ept to the extent of any 
 boint fide interests tlierein which, at tho time of such death, should 
 be vested in any ot'iicr person or i)ers()ns for a snfHcient pecuniary 
 or other consideration. W. committed suicide under temporary 
 insanity, while the policy was in the iiands ot' the company. The 
 court was of opinion, that tho company and the insured stood in 
 the sanu' position as if the policy had been mortgage(l to any third 
 person ; that the company came within the exception in the con- 
 dition and. therefore, tlnit the policy was valid to the extent of the 
 mortgage debt due to lliem at the death of the insured.' 
 
 384. Death by tho hands of justice or in violation of law. - 
 
 The weight of authority is in favour of the vii'W that the term 
 "violation ol law" should be restricted to cases of violation of 
 criminal law,- 
 
 Tbe act in violation oi law and the act causing death must be 
 part of the same continuous transiicticui. ' 
 
 In a I'ccent Quebec case,' the ettect of <leatb occurring during 
 a figlit was very fully discussed. 
 
 (lHi)."i), ;W(I. - -S|):irkH v. Kiiinlils 'I'cmplni's' and .Manoiis' IJfo Iiul. (a)., 1 Mo, App. Hop. 
 (1S!I.-.) ;i;tl. -ChiiajiM Cuar. l'"miil L. Soi\ v. Wilson, 55 111. App. l;ts.— MarocU it ill. v. 
 AIul. Ui's. Vuui\ I.il'c Ash., (it N. \V. Ucp. (1S1I5). (tS (" Iiiconlcslahli' clausi-" licld 
 app'ii iihli' ; si'c also //lyVvf), -.Johns (7 ((/. V. N. W. Mm. Uclicf .Vss., (i;t X. W. |{('i). 
 (ISiM), 27'.!; II Ci-nlral I,..I. (1H!»,5), 50. .Mnt. I{fs. Kun.l Mfo Ass. v. I'ayni-, :t2 K. \V. 
 lii'p. (IS!!;)), IDIi;! ("Ini'onli'stahic clause" lii'lil applicaWi' ; sci' also sii/irii). -Weld v. 
 ]\tiil. Life lns.('o.,()l 111. App. I-.?. .lOlna l-il'c Ins. ("o. v. SlidMiiakcr, 5!l III. App. 
 (U:t. McCoy V. .\. \V. Mm. Kclicf Ass., fid N. \V . |{cp. (ISDII), (iU7. 
 
 I . Ctiilcnlini- V. .Mm. Hen. I,il'c Ins. ("o. (ISS5), 21 Fed. H'.'p. 1511, where It was 
 foniid llial the assured coinniill'jd suicide while insanu, the liahilily of the eoinpiiiy 
 was, In aecorilance, with a provision in tho policy, held limited to th<' amomil of the 
 prendnms actually i)aid with inlei'est thereon. 
 
 I White V. Hrilish i'lin. Mul. Life Ass. Co., 7 l>;i|. :t'M. 
 
 " See discussion in lllooin v. fnudclin Co., it" Ind. I7S (IS.-'tV iV Hradley v. Afut. 
 Hen. Co., 15 N.V. IL'2 (IS7I). I'((^> also Collins v. Hank<'rs .\ee. Ins. Co. «7 ((/., lU X. 
 W. Hep. 77S(1S!I5). 
 
 ■'Clutlv. Mut. Hen. Co., i:t Allen (.Mass.) IKIS (IHIKIi. Hradley v. Mm. Co.. .siiiini, 
 Murray v. N. V. C.n., (HI N. Y. (Ill (IK+I) See also niit)rii i :i(i5, p. .5WI, note. 
 
 ■•Turnhud v. Travellers Ins. Co., H. .1. Q. 2, S. C. 1 & H. 1. l). i. S. C. MitH, 
 
i^^^ 
 
 SUICIDE AND DEATH IIY THE I'AXDS OP JUSTICE, ETC. 
 
 051 
 
 IiiGriniii V. WcstiTii Mat. Hen. Ass. (lHS(tt, A; Neb. tVZO, the evidciu'c sliowod. 
 Hint Hie iissurcd Imd I'oniiiiilted ii roliliiry at tlu' stiu' tiviisury and, wliile trying to 
 I'scaiH', wiiH sliol and killed by a walclinian. The SupKnie Court of Nebraska hehl, 
 that the clause in the policy ejceeptiii^ death "while vio, MinR any law," was not 
 applieable, the (h'ceased havinji already obtained ;he, nioiie., and endeavouring to 
 escape wlieii he was killed, was not, at the instant i>f death, v. 'lating any law, and 
 tliere was, tlierefoiv, no forfeiture of the eertilicatc. (This deeis.iii would hardly 
 seem to do. just ice to the spirit of the provision in (pustioii, which evidently was 
 intended and by both parties uiKh'rstood to apply not uiei-ly to the ulonious act 
 itself, but also to its natural eonsei|ueiices, i .<•. trying lo esciine, the two ii 'ts beinu; 
 in reality but one eontinuous actK 
 
 Anotl-.er ease where the company unsuei'essfully invoked tin? clause exenii/ inji 
 them friim liability in case of violation of, or attempt to violate, any crimiii, 1 
 law, was Harrow v. Family Fund Soc, (ISmi), 11(1 N. Y. iW. 'I'lie comp.uiy pmiiosed 
 to oiler evidence that the assured died from Hie ell'eets of poison t.iken with 
 suicidal intent and thereby violated the law. The court, liowever, held that 
 suicide is not a erini" within the law, allhouKh the atiempt to coiumit suicide is. 
 
 I 
 
 ■14\ 
 
 - il 
 
 : I 
 
 i; •; 
 
f 
 
 ■ v. 
 
 ■'[■•'■ ■ 
 
 i ■ 
 
 CIIArTER XXI. 
 
 ACTION'S BY AND ACAINST INSURANCE COiMPANIES. 
 
 H)^"). CiKNKUAI, Hi:MAIiK.S ON AiriOSS. 
 
 IM). lillX I.Oll COXTHACTUS— PI.AlIO 
 WIIKHK ACTION MAY 111'; IIUOVCHT. 
 
 US7. EVIDKNIK iu;ji;i TKI) IN AHSKNCK 
 OF I'l.KA OF AHSON - (;K(JUNr)S ON 
 Wmill IT IS OFFIiUKI) .ML'sr Hi; STATFI) 
 IN I'OVRT DKI.OW. 
 
 liiSS. PowFit OF cornT to si;t asiui; 
 
 VKKDICT. 
 
 HiSi), Pi,i;a ok " NON i:ST FAl TCM." 
 
 :«>i). Consolidation of aitions. 
 
 :W1. InTKHFST on AMOI-NI' (IF LOSS 
 Al.LOWKl). 
 
 'M\l. '■ EXI KI'IION lllLArolUli" ON A( - 
 lOl'NT OF IKI.MIXAL CllAlilil'; A(;AlNsr 
 PLAINTIFF. 
 
 Hin. AWUL.MKNI' OF FOLICV MIsr liF 
 
 iii:maniii:i). 
 
 ;t'.i|. Wri'IlllKAWAl, liv IM.AINIIFI- or 
 
 MONFY l)i:i'OSlTKI) IN lOriiT HY DK- 
 FLNDA.NT. 
 
 •iUa. ANNrL.Mi;Nl' OF I'HANSFKll, AND 
 HFl TIFICATION OF KItUOIt IN UFK IN- 
 SrilANCi; POLICY. 
 
 ;ii«). Policy 1!i;si;hvin(; loNiudi, of 
 
 LKCJAI. l'ltOCi:i:i)lN(iS TO CO.MI'ANY. 
 
 :i!17. NOTlCi; OF TRANSFFH AND Sl'll- 
 KOIiATION .\ ( (INDITION 1'HLCFD1:NT TO 
 srir liY COMPANY. 
 
 :t!l8. MuASiTKi-; of damacks hkcovlu- 
 AHi.i:. 
 
 ;!!•!). Action foiu ai.ls^ iai.si: knthy 
 HY A(;i:\r i.v spiisi hipi'ion hook— al- 
 li;(;i:d AcyriKscKNci-: iiy kfckipt of 
 di\idi:m). 
 
 KX). Asslssmi:ni- cpon i.nii:ui:si-. 
 
 ■101. JriiY (IIYINC AN ANSWFI! lli;- 
 
 YoNi) iiiLin i'noi'i:i; fcm tions. 
 1(12. Stamps on poi.iciks. 
 
 385. General remarks on actions. — Thoiv lias been a ooii- 
 sidorablc amount of litiy'ation on tlu' t[uosti()ii oi' wlicio and how 
 tiftioii oil iiisuruiicL' coiitracts sliould 1)0 broutjlit, as well as upon 
 (itliiT points of a similar nature. 
 
 [iisurancc decisions show that the courts are not inclined to 
 lo(dv with favour uiion technical ohjections to the payment of an 
 lioni'st loss. The followiiiij: remarks are those of Canadian apitel- 
 late Judu'es : — "A less meritorious del'eiiee cannot lie discovered 
 anionji- the cases which abound in our re[>orts, in which insurance 
 companies of litigious spirit have been di'fendaii''t'."' ' — *' I have 
 upproache(l the case with an anxiou.s desire to assiM the as.<ured, if 
 }iossii)le, against wliat I consider to be a most unrighteous defence, 
 and I regret tliat a company should have felt itself justified in 
 setting up a defence ot the kind, when no I'rautl was eonlemplated, 
 
 HiitliT V, Slaiicliird liis. Co., I A. I{. ;«M, (IHTltt. 
 
TT1 
 
 ACTIONS «Y ANlt AGAINST INSURANCE COMPANIES. 
 
 653 
 
 anil no possible injury could have been sustained by the company 
 in conseijuonoo of the act ot" the assured."' ' — " Resistauee to a just 
 claim is a poor advertisement for any comiiany ; the defence is 
 most discreditable to any company which desires to liave the name 
 of being respectable. I am, therefore, with regret, of opinion that 
 the objection must be allowed." ■' 
 
 On the other hand, it frequently happens, as in the case ot 
 O'JIear/i v. Tlie C'ldedntuaii Insurance C'o)np'(ni/,' that a company, 
 believing the loss to l)e caused by fraud, raises a technical defence 
 successfully. In this case of O'Hearn v. llie Caledonian Insurance 
 Compain/, the evidence completely justified the compan^-'s position. 
 The action was dismissed on the purely technical ground of want 
 of formal notice (following Guen'n v. 3Ianchester Ins. Co., 11. J. Q., 
 Q. B. 434, supra § 308. p. 015, and Youinj v. Ace. Ins. Co. of N. 
 A., 20 S. C. K. 280, supra k 375, p. 617), although the company 
 knew of the tire from the lirst and hud refused to entertain the 
 claim. The proof established also the plea of arson. 
 
 The question whether the same princii)les as to proof of 
 arson should apply in a civil as in a criminal action was fully dis- 
 cussed in this case by Lynch, ,1., wlio ruled that the same degree 
 of absolute certainty should not be required in a civil case as in a 
 criminal action, but that, in the absence of positive proof, there 
 should be sudi a preponderance of evidence, arising from all the 
 facts and circumstances, tending to establish a just and reasonable 
 presumption that the party charged must liave committed the 
 act; or, as expressed by Hall, J., in the Central Vermont insurance 
 case, "that he must have committed the crime — the concurrent 
 proof of circumstances that leaves no moral doubt as to the guilt 
 of the accused." * 
 
 Any judge, notary pulilic, justice of the peace, police or sti- 
 pendiary magistrate, recorder, mayor, commissioner authorized to 
 take affidavits to be used either in the Provincial or Dominion 
 courts, or any other functionary authorized by law to administer 
 an oath in any matter, may receive the solemn declaration of any 
 person voluntarily making tlie same liefore him, in attestation of 
 
 1 Gautliier v. Waterloo Iiis. Co., A. U. 2:n, (IHHU. 
 
 2 Peuclicii V. City Mutual Ins Co., IH A. R. 41(1, UHill). Mticleniiaii, 107. 
 •■' Doiidcd nt Montroiil, 2:ir(l Oct., 181)7, ami not yi't reportt'd. 
 
 •• Uoscoc's Criminal Evidence, p. 1(!.— Starkle on Kvldence, No. 818.— Hewt on Evi- 
 dence, No. 1)5, -Wood on Fire In«., p. 1184. 
 
IP,?:-.:' ! 
 
 ij.ij 
 
 H^^;';;;: 
 
 :^'« 
 
 '•; ;,.'(.-' 
 
 :.!i' 
 
 654 
 
 INSURANCE LAW OF CANADA. 
 
 
 
 
 I if!' 
 
 \rym 
 
 ^;;iiil-i.:'' !' 
 
 ft' 
 
 the execution of any writing, deed or instrument, or of the truth 
 of uny fact, or of any account rendered in writing.' 
 
 Any affidavit, affirmation or declaration required by any in- 
 surance company authorized by law to do business in Canada, in 
 regard to any loss of, or injury to, person, property or life insured 
 or assured therein, may be taken before -awj commissioner or other 
 person authorized to take affidavits, or before any justice of the 
 peace, or bofore any notary- pul)lic for any province of Canada ; 
 and such officer is required to take such affidavit, affirmation or 
 declaration. - 
 
 386. Lex loci contractus— Place Avhere action may be 
 brought. — Any contract of insurance on property within the juris- 
 
 dietit)!! of the province of Ontario, or concerning a person domi- 
 ciled therein, and issued or delivered in Ontario, is deemed made 
 in Ontario, and will be construed according to the law thereof; 
 and all moneys payaltle under the contract must be paid at the 
 office of the company in Ontario, notwithstanding any stiimlation 
 to the contrary.' 
 
 Where, under an Ontario contract, money is payable i)y a 
 corporation having its head office in Ontario, to the representa- 
 tive of a person domiciled at bis death in another jurisdiction, and 
 there is no personal representative in Ontario, the money may be 
 paid two months after such death lo the personal representative 
 apiiointed by the court of the other jurisdiction, provided the 
 domicile at the time of death is satisfactorily established.' 
 
 It has been said that the lex bic'i CDDtrnctus governs the con- 
 tract of insurance, but the question, irhere the contract was made, 
 usually resolves itself into the ([Uestion, irhen it was made or con- 
 summate<l. As where the policy is issued by a comiiany having 
 its home otHce in one state, the insured being a resident of another 
 state, and it licing delivered to him there. The ([Uestion of ichen 
 the contract is consummated is not necessarily determined by the 
 time ot the delivery of the [lolicy, and if the apjdication is uiu'on- 
 ditioindly accepted by the company at its home otHce, that is the 
 place where the contract is made, irrespective of the policy (which 
 merely evidences the contract) being delivered at another time and 
 place. Thus, a policy taken out In- a resident in Caiuida in a New 
 
 • fJiiiiiiila Kviik'iK-o Act, IWKt, M Vic, flip. Ml, s. "ill. •' fh., s. :i7. 
 ' (III Vic, c. :t(l (O.), s. 1 i:i. * m Vic. c ltd (O.), s. im. ss. 1. 
 
WC^SS-t* 
 
 ACTIONS BY AND AGAINST IN9DRANCE COMPANIES. 
 
 655 
 
 York company, is governed by the law of New York, wliore the 
 projjosal v>'as made to the i-onipaiiy's agent in Canada, who had no 
 authority to consummate the contract, but sent tlie proposal to 
 New York, where the policy was prepared and sent on and delivered 
 in Cainida to the insured.' 
 
 A fortiori, the head office is the place of the contract, it by its 
 terms the contract is to be pertbrmed there. The act ot payment 
 by the insurer constitutes pertbrmance.-' 
 
 It has also been said, that in the United States an assignment 
 is not a distinct eontruct. but an incident of the original contract 
 and governed by the law of the place of the latter; ' but this is not 
 the rule in Canada and England ; ' and, of course, each state may 
 prescribe its own conditions regarding foreign insurance companies, 
 which will take effect whatever the intent of the parties. 
 
 In <iucbcc, an insurance company may be summoned for 
 rights arising out ol' .. '..va insunmce policy before the court of the 
 place in which the insured movables or immovables were ; and foi- 
 rights arising out ot a life policy, before the court of the place in 
 which the insured had or has his domicile.' 
 
 Insurance conijianies are also liable in (^ueljcc to be sum- 
 moned as other cor[iorations under the gi'iieral law.' 
 
 1 Eciuitable Co. v. Perriiult, 2(1 L. C. .1. ;{S2 (1SS2) ; and see Cooko on Life Ins., ij o. 
 
 - Cooke on Life Ins.. S 5. ■' Mnt. Co. v. .Vllen, KfS Muss. 21 (ISSl). 
 
 ■* Lee V. Alidy, 17 I<. I!., Q. 15. I).,:tlHt(lSSii). -'roronto (ien. Tnists Co. v. .Seweil, 17 
 O. 1{. 112 (1SS!)>.— Seottlsh Pi-ov"l Ins. v. Colien, KiSeofcli Sess. Cas., I series, 112(1S,SS). 
 
 l'"ov Dllier reeent Anieriean decisions see ; Siiufh v. .\. Y. I^ife Ins. Co. (IS!i;i», 't~ 
 Fed. Kep. i:t:!, wliere the jioliey was on the life of thi; Inishand, wlio was afterwards 
 divorced from liis wife and was to deliver to her tliis |)olicy, l)Ul assigned it with 
 otlier personal property to a third party. After his 4lealli, liis wife, then living in 
 California, obtained letters of ailnnnislratiou and lironjjlit an action against the 
 company in tlic Kedci-al Court of lliat district. A trust company liad olitained let- 
 ters of administration c. l. a. in Illinois, and liroufiht an action iii tlial slate. The 
 court cited the case of Xcw Hnuland .Mut. Life Ins. Co. v. Woodworlli. III. Ill, l'..S., 
 s. c. IS, Ct. Hep, III) I, am. declared the jmlic y to lie undoulitedly an asset In California. 
 
 In Ins, Co. of \. .V. V. McLimans ilS!K)>, 2S Ncli. (i."i:t, the insurer was a Pennsyl- 
 vania company ; the contract was made in Iowa upon property located in that 
 state, the owner livinn in -Nebraska. A loss having occurred, tlie assured brouglit 
 his action in a county of Nebraska, sitvIcu of sumnuins beiii)^ upon an agent of the 
 ■lomiJaTiy residini^ in that co\inly. The Supreme Court of Nebraska said iiilir (din : — 
 ".A contract of insurance is personal iii its nature, and action may be brought 
 wherever service may be had upon the insurer." 
 
 ■' C. P. il.j ; and Hue H. S, t^ .■|H(il. 
 
 " C. P. !M <■/ ,sc7.-0'.Malley v Scottish Comm. Ins. Co., I Q. L. R 22(1.— 
 Toiirigny v. Ottawa Agric. Ins. Co., ;t L. N. 111. Pattison v. .Mut. Ins. I'o. of Stan- 
 stead, 1(1 L. C, J. 2."). — I'ittstern Townships Mut. l-'iri! Ins. Co. v. Mienvenue, 2 L. X. 
 ;WH,— Mutual Fire Ins, Co. of Stansteail v. (laliput, II L. N, ill), -O'Heani v. Caledonian 
 Ins. Co., Superior Court, ISIonl real. Ill Dec, ISIHl, not yet reported isef mi /irii SUSa). 
 
 lk\ 
 
 i'l 
 
656 
 
 INSURANCE LAW OF CANADA. 
 
 * 
 
 Where (lefeiidants were a foreign iiisiiraiico conipany doing 
 l)usincs8 in Ontario and having u head office for the province in 
 Toronto, tlie writ of snmmons was served on the local agent of the 
 defendants' company at Ottawa, and it was ruled that the service 
 was good.' 
 
 387. Evidence rejected in absence of plea of arson— Grounds 
 on which it is offered must be stated in court below.— In an 
 
 action on a policy of insurance against lire on a stock of goods, the 
 verdict for the plaintifi was moved against on the ground (d its 
 being against the weight of evidence and of improper exclusion of 
 evidence. The first ground was maiidy urged in regard to the 
 amount of damages. As to the second ground, the evidence ten- 
 dered related to the fact that a quantity of unhurned matches and 
 shavings had been found near the part of the premises in which 
 the lire occurred, where the bulk of the goods were alleged to have 
 been burned. The evidence was rejected by the trial judge for 
 the reason that there was no defence pleaded tliat the tire was 
 incendiary, and on a})peal to the full court below it was for the 
 first time urged that it was admissible as showing the nature and 
 extent of the lire in the vicinity. The verdict for the plaintiffs 
 was sustained by the full court. On appeal to the Supreme Court 
 of Canada, it was lield, Gwynne, J., dissenting, that the decision of 
 the Supreme Court of Nova Scotia should be affirmed. Per 
 Ritchie, C.J., that, though the amount of the damages found in 
 the case was not satisfactory and might well have been submitted 
 to a jury of business men as a (piestion proper for their determin- 
 ation, he would not dissent from the judgment dismissing the 
 appeal. As to the other ground, the evidence was riglitly rejected. 
 When evidence is tendered, the judge and opposing counsel are 
 entitled to know the ground on which it is ottered and none can 
 be urged on appeal that luis not been put forward at the trial. - 
 
 388- Power of court to set aside verdict — In an action on a 
 life policy, tried before a judge and a jury in accordance with the 
 provisions of 37 V., c. 7, s. 32 (O.), the learned judge, in place of 
 requiring tlio jury to render a general verdict, directed them to 
 answer certain questions, and tlie jury having answered all tlie 
 questions in favor of the plaintiff, the judge entered a verdict for 
 
 1 Wilson V. yEtna Life Ass. Co., 8 P. R. 181. 
 
 " Supreme Court of Canada, Royal Ins. Co. v. Dutrus, 18 S.C.R. 711. 
 
i\ 
 
 ACTIONS BY AND AGAINST INSURANCE COMPANIES. 
 
 657 
 
 the plaintiff. Ujwii a iiilc visi, to sliow causo why tliis verdict 
 should not he sut aside and a noii-snit or a verdict entered tor 
 defendants, pursuant to the " Law Reform Act," or a new trial 
 liad hctweeii tlie parties, said verdict lieing contrary to law and 
 evidence, and the finding- virtually tor the det'eiidants, the Court of 
 Queen's Bench made the rule absolute to enter a verdict for the 
 defendants. The appellant then appealed to the Court of Appeal 
 for Ontario, and the court \>e'mg e([Ually divided the apiK'ul was 
 dismissed. It was held, Taschereau, J., dissenting, that the Court 
 of Queen's Bench had no power to set aside the verdict for the 
 plaintifl and direct a verdict to he entcretl for the defendants, in 
 direct o[iposition to the fnuliny of the jury on a material issue. 
 That the court helow miii'ht have ordered a new trial upon the 
 "ground that tiie findini;- of the jury, uixm the ([uestions submitted 
 to them, was against the weight of evidence, ])ut they exercised 
 their disi.-retion in declining to act or in not acting on this gi'ound, 
 and therefore no ap^ieal to the Suiu'cme Court of Canada would lie 
 on such ground, under s. 22, 88 V., c. 11. 
 
 That if an ami'ndment to a [ilea was authorized by the couiT 
 below, but such amendment was never actually made, the Supreme 
 Court has no [)ower to consider the case as if the amendment had 
 in efleet been made. (But st'e Sn[ireme and Exchequer Cimrts 
 Amendments Act, 1880). 
 
 Per Gwynne, J. : That the plaintiif never could have lieeu 
 non-suited in virtue of '^7 V., c. 7, s. 83 (O.), as it is only where it 
 can be said that there is not any evidence in su^iport of the plain- 
 tiffs case, that a non-suir can be entered, and that the [)ro[)er ver- 
 dict, which the law requiretl to be entered upon the answers of the 
 jury, was one in favor of the plaintiff. 
 
 This case was appealecl and the Loi'ds of the Judicial Coin- 
 raittec of tlie Privy Council afhrmed the first holding of the 
 Supreme Court. As to the second holding, it was held, that 
 the Supreme and ExcduMpier Courts Act, s. 38, gives the Su- 
 preme Court power to give any judgment which the court 
 helow might or ought to have given and, amongst otiier things, 
 to order a new trial on the ground either of r isdirection or tiie 
 verdict being against the weigdit of evidence ; and that power 
 was not taken away by .s. 22 in this ease, in which tiie court 
 helow did not exercise any discretion as to the i(uestion of a new 
 
 42 
 
 ,1 
 
 1 
 
 i 
 1 
 i 
 
 I J 
 
 
 '1 
 
 J . i 
 
WW 
 
 it 
 
 'If::: 
 
 058 
 
 INSURANCE LAW OF CANADA. 
 
 trial, and where the appeal from their judgment did not relate to 
 that subject.' 
 
 389. Plea of "non est factum." — To a declaration on a policy 
 of insurance made by defendants, but not averring that it was 
 under the corporate seal, the defendants pleaded ))on est factum. 
 The plea was held good, tor that the declaration set forth a com- 
 plete instrument, a [lolicy of insurance made by detendants, a cor- 
 poration which ex vi tennini, imported a seal ; and in any event the 
 plaintiff could not be embarrassed by the ]tlea, as it must under the 
 ( ). J. Act, Kules 141 (Con. Rule 413) and 403 be treated as a mere 
 denial of the making of the contract of insurance in fact, and not 
 of its lesjaiitv or sntHciencv in law.- 
 
 390. Consolidation of actions. — In case of several ac<^ions 
 being brought in Ontario for insurance money, the court con- 
 solidates or otherwise deals therewith so that there shall be but 
 one action for and in respect of the shares of all the persons entitled 
 under a policy. ' 
 
 "Where a right of suit exists in a bod\' of persons too nimierous 
 to l)e all made parties, the court will permit one or more of them 
 to sue on behalf of all, subject to the restriction that the relief 
 prayed is one in which the parties whom the phiintitl: professes to 
 represent, have all of them an interest identical with that of the 
 plain titt. 
 
 But where a mutmd insurance company had established three 
 distinct branches in one of which, the waterworks branch, the 
 plaintiti: insured giving his promissory note or uinlertaking to pay 
 §1()8, and the company made an assessment on all notes and' 
 threatened suit in the Division Court for paj'ment of such assess- 
 ment, whereupon the plaintilt tiled a bill "on behalf of himself and 
 the other policy holders associated with him as hereinafter men- 
 tioned,"' alleging the company was about to sue liim and the other 
 policy holilers in said branch, that large losses had occurred in the 
 company prior to the time of his effecting liis insurance, and insist- 
 ing that he and the other policy holders could be [)roperly assessed 
 
 ' Monro v. Conn. Jlnt. tiit'e Ins. Co., (i S.C.R. (i;!!, (i Ap]). Ciisos (Ul. Tlio JikIk- 
 nient 111' tlie .Tiitlicial ConiiniHtH' will also be fouinl |)iint»Hl a.s an appiMidix to the 
 Sniii't'nR' Comt Uiiporls. .See also report oi case in 41 U.C.Q.IJ. 1!)7 and in I) O. 
 A, H. ;):!!. 
 
 ■: Burnett v. Union Mut. Fire Ins. Co,, :<:i C.P. IHI. 
 
 •UiO Vice. :;()(Ot, H. 140. 
 
ACTIONS BY AND AGAINST INSURANCK COMPANIES. 
 
 659 
 
 )!:' the 
 
 uiid' 
 
 issess- 
 
 11" and 
 
 men- 
 
 |e other 
 
 ill the 
 
 iiipist- 
 
 sseascd 
 
 lie .jiulfi;- 
 to the 
 in ;i O. 
 
 only in respect of such losses as had arisen since they entered the 
 company, and praying that the necessary inquiries might be made 
 and the counts talcen, alleging that the Division Court had not 
 the luiicliint'ry for that pur[)ose : — It was decided, that according 
 to the statemjnts of the bill the policy holders in the waterworks 
 liranch were not represented in the suit, and a demurrer ou that 
 ground tiled by the company was allowed with costs,' 
 
 391. Interest on amount of loss allowed. — In actions on 
 policies ot insurance in Ontario the jury may give interest over 
 and above the money recoverable thereon. - 
 
 In Quebec, interest runs from the date of the action.^ 
 Ill an action upon tire insurance policies, a referee was directed 
 to ei)(|uire, ascertain and report the amount of the loss. It was 
 held, having regard to the provisions of ss. 87 and 103 of R. S. 0. 
 (1887), c, 44, that the referee had authority to allow interest on 
 the amount of the loss as ascei'tained by him.' 
 
 392- "Exception dilatoire" on account of criminal charge 
 against plaintiff. — In an action brought to recover upon a polic\' 
 of insurance, an e.rcejitioii dilatoire, \n which it was alleged that a 
 true bill had been found by the grand juiw and was pending against 
 the plaintiff on a charge of arson with a view to defraud the defen- 
 dant, and that, therefore, all proceedings in the case must be stayed 
 and held in afieyance until he should have been tried upon an 
 indictment, must be dismissed, and the existence of a criminal 
 cliargi' against the plaintiff cannot operate a suspension of pro- 
 ceedings in the action against the defendant,'^ 
 
 393. Annulment of policy must be demanded. — In a pica 
 invoking nullity of the insurance contract because of false repre- 
 
 ' 'I'lioiiipsoii V. Victoria Mut. Fire Iiis. Co., :i!» Cliy. ")(). 
 
 - .")S Vic, c. U (O.), s. 120. :' C.C.h.C. 11)77, 1(»7S. 
 
 ^ Attorney (ieneral v. .Mtiiii Ins. Co., I'i P. II. 15'J. 
 
 As to measure of (laiiiajjes reeoverabli! under a poliey of life assurance, [laya'ile 
 if the insured survives a certain day. tlie plaint ill' can recover interest only from the 
 date of the writ, uidess in his declaration he alleges a deman<l liefore that time. 
 For, if the policy is payable ninety days after due notice and satisfactory evidence ot 
 tlie death of the person whose life is insured, or, if he survives a certain day, is then 
 l)ayal)le to him, tlie ninety days clause has no application to the latter contingency, 
 and interest is not payable except as damages foi' wrongfully withholding the money. 
 This was the decision rendered in the case of I'ierce v. Charter Oak Life Ins. Co. 
 (KSS4), i:i.s .Mass. l.-)I. 
 
 "' Maguire v. L'pl it L'dn & Globe Ins. Co., 7 L.C.H. 313. 
 
 
 " I'M 
 
 i' ! 
 
 I I 
 
660 
 
 INSURANCE LAW OP CANADA. 
 
 i 
 
 H 
 
 sentation, fraud, etc, the aiiimlmeut of the policy must be domaiul- 
 ed in the conclusion ot the pica, otherwise the action against the 
 insured will be maintained.' 
 
 394. Withdrawal by plaintiff of money deposited in court 
 by defendant — In the very ve^'cnt cur^o of Ileirard v. Scntllsh Union 
 ifc National Insurance Cornpant/,- the ennipan^' defendant deposited 
 with the court the amount for which it acknowledged lialnlity. 
 The plaintiff made a motion to he permitted to withdraw this 
 amount on account and continue the action, which motion was 
 granted by the court, seeing that the otters of the defeii(huit were 
 not conditional. 
 
 ' SovereiKii Fire Ins. Co. of Caiiadd v. I'riinciui, 11 U. L. ;i()'J (Q. 15. ISS.T). 
 
 - Supra g ■i&2. 
 
 The following rules of evidence taken fniin actions on (iro insurance jioiicies, 
 nstituted in the I'nited States, altlKiiif^li for the izreater jtart toucliin;^- points 
 already discusseil in previous chapters of tliis work, are important enoiijili to ha\e a 
 pliice in the present chapter. 
 
 Parol evidence in contradiction of the terms of an insurance policy should be 
 excluded. — Robinson v. (ierman Ins. Co., (ISSil), .")1 Ark. 141. 
 
 Evidence of the situation of the i)reniises insured, at the time the policy wa< 
 issued, and of the arranfjenicnt made, and of what was said bj' the njicnt of the 
 company, is admissible in an action upon a tire policy. — (Heach, l;i22). 
 
 Experts in lire insurance may properly bo permitted to testify as to whether :i 
 change in the use of insured i)roperly in a certain respect increaseri the risk. - 
 Russell V. Cedar Rapids Ins. Co. (ISSi)i, 7.-1 Iowa liUi. 
 
 Merchants who were eii;;aj;ed in (lid'erenl lines of trade, but who had seen the 
 stock of merchandise in iiueslion before it was deslroyed by lire, were held com- 
 petent to testify as to the value of such stock, thouj^h their testimony was of an un- 
 satisfactory character. — Graves v. Merchants & Bankers Ins. Co. (1891), 82 Iowa ().'{7. 
 
 Where an answer to a complaint upon a jiolicy of insurance avers that material 
 statements in the plaintilfs api)lication for insurance are not true, a rei>lication 
 thereto averring that the plaintill' did not make or sign the application, but that it 
 was written without his knowledge by ihe agent of the insurance company, un- 
 attacked by denuirrer or motion, makes the responsibility for tlie application a 
 material issue in the case, and entitles the insured to testify that he did not make 
 or sign it, and to give his version of what actually took place between himself and 
 the agent in reference to the application.— State Ins. Co. v. Taylor (ISIHI), 11 Colo. I'M, 
 supra. 
 
 Tlie assured must allege and jirove that the preliminary proof of loss, reiiuired 
 by a policy, lias been made, or that the re(|uirement has been waived.— McCorniack 
 V. North ijritish it Merc. Ins. Co. <l.S.S!h, 78 Cal. KiS. 
 
 The New York Court of Apjieals has declared these rnl<>s of evidence :— In an 
 action \ipon a policy of lire insurance in which the identity of the building insured 
 is disputed, where the i)olicy accurately describes one building, extrinsic evidence 
 tending to show that a building other and dillerent from that described was inten- 
 ded is inadmissible. So, also, where the agent of an insurance company has no auth- 
 ority to enter into contracts of insurance on behalf of his principal, l)ut is simply 
 authorized to make surveys and make applications, the company i)assing upon I hem 
 and a i)olicy is i.ssued by it, which covers one piece of jiroperty, delinitely and dis- 
 tinctly described, it cannot in an action \ipon the policy l)e turned into a contract 
 
M 
 
 ACTIONS BY AXU AlJAINST INSURAXCE COMPANIES. 
 
 661 
 
 <\ ' 
 
 iiisui'iri;{ another piece of properly on proof timt the a^ent made out tlie ;ii)plieation 
 and bv niislake deserilu'd the wronj^ i)roperty. — I-;vnder.s. v. Cooper dSSll). 115 N. Y. 
 ■21'.). 
 
 Where the defence loan urtioTi upon a lire insurance policy is that the Insured 
 was not tlie owner of thi' l)reinises in i|nestion, it is competent to sliow tliat tlie 
 leed, miller ulilrh tlie insnreil claims, liad been delivered in escrow only. — Heacli, 
 i:«:». 
 
 An aseiit sliould lie allowed to testify as lo the extent of liis powers, wlien it 
 becomes materia! in an ,ictio;i on a contract m vde by liini foi' liis pi-|ncipal.— IMueni.x 
 Ins. Co. V. Copeland iISS!)), Sli Ala. 5,51. 
 
 The complaint in an action on a p )licy, nllenin;? an oU'er of subrojation to the 
 insurance ciimpany, and no motion Itcinj;; made to strike it oul as inimilcrial, l)nt a 
 >;eiicral denial only beinsJ tiled, the defendant cimnot object lo the admission of 
 evidence to prove the oiler.— ( Meacli, l.'iiil. 
 
 In Plio'nix Ins. ('o. v. Mun;j;er (IHiliii, |!) Kan. IT.-i, the Supreme Court of Kansas 
 held, iliat it was error for the Court lo admit (evidence as to tlie practice of other 
 insuranci' aj;ents in tlie .same town to establish tlie custom that proofs of loss were 
 not reipiired. Such evidence sliould be limited to the etistom and usa>j;e of the com- 
 pany chariced with liability, and is only competent then to show the power and 
 rtutliority driven to the aKent. 
 
 It was held in Minnesota, in tlie case of Daile v. .Ktna Ins. Co. (IH!)!!), .51) \. AV. 
 Rep. H, that notice at the trial to the company's attorneys to produce pi'oofs of loss 
 sent by the insured to the company in a distant state, it not appeariiij? that they 
 were within reach of these attorneys at that time, was insulllcient to lay the foun- 
 dation for secondary evidence. It was further held, that when' proofs of loss were 
 shown to have been properly mailed to the company at their place of business or 
 the home olHcc, it would be presuiu'Ml that they were received in due course of mail. 
 till the contrary is made to ajipear. 
 
 In an action to foreclose a mortjiase, bronsht by an insurance company, the 
 court found, tliat the company issued a policy of insurance to one of the defendants 
 upon a dwelling house, situated upon niortjiajjed premises, and made the loss pay- 
 al)le to the mortKaj^ee, and that the mortj^asee assij^ned the notes, mortf^a^^e and the 
 policy to another with the knowledfie of the insurer, and that the property insured 
 was tot.ally destroyed by lire, of which the company had notice, and that it inspected 
 the loss, and after such inspection paid the amount of the policy to the assignee, 
 and took an assignment of the notes, inortgaLte and policy to itself. The Supreme 
 Court of Kansas held, tli.it such tlndiuKs were sullicient to show an iiidehtedneas 
 upon the part of the company to the defendant to an amount e(|ual to the policy, 
 aud that such payments sho\ild be considered as a satisfaction pro fiiiito of the 
 amount due ou the notes and mortj;a^!e. — Home Ins. Co. v. .Marsli.ill (ISDiii. IS Kan. 2:i5. 
 
 In another case before the same court, (Phtenix Ins. ("o. of Hartford v. Dolan, 
 (I.S'.Ki), .")tl Kan. 7:i5), it ai)peared that a dwelling: house and lot were mortgaged by 
 the owners to secure a note, and the house was insured against loss by tire. It was 
 agreetl tliat the loss, if any, was payable to the morlga^ree or his assigns. The note 
 and mortgage wore assittned to the company which had insured the house. Tlie 
 mortgagees conveyed the projierty to one who assumed the i)aymenl of the mort- 
 gage debt. This was an aclion l>rought against this jierson by the insurance com- 
 pany lo recover upon the noie and to foreclose the iiiorlg.ige assigned to it. Defen- 
 dant answered, that the house had l)eeii destroyed liy lire and the loss had ac'crued 
 to him and should be credited upon the morlgige debt. It was ruled upon the 
 trial, that the burden of proof was on th ■ defendant, and he oll'ered in evidence the 
 insurance policy and also a pajier purporting to be a receipt of payment by the 
 insurance company to the original mortgagee, and rested. The execution, identity 
 or genuineness of this last paper was not shown. The Supreme t'ourl of Kansas 
 held, that the testimony was insullicieul to show that a loss had occurred, or that 
 defendant was entitled to a credit upon its mortgage debt for any loss. 
 
 : I 
 
 I :; 
 
 It ■ 1 
 
662 
 
 INSURANCK LAW 01' CAXAUA. 
 
 A inoi'tgji^foc, to whom ii iiolicv issiii'd lo riiorliiiiHor is tiiiiilc imyiililr. may sue 
 ftloiic, wlu'iv liis cliiim fxi-i'iMls tlu' amount of llu' iiisuraiirc. Tiavolers Ins, Co. v. 
 California Ins. t:o. ilSiMM, 1 N.D. I.")I, iii/rii. Hnl tin- lu'tlcr iiracliri' is foi- llic niorl- 
 Kiifi')!' and mortgajjcc l)otli to sue. (Hcacli, lliS.">i. 
 
 In liaitlt'tt V. lowii .State Ins. Co. (I.'^S'.M, 77 Iowa S«i, tlic couM was of opinion 
 tliat tlie holder of a inortnaj^L- on Misuri'd propiTty, at the time of a los!<, iiiiKht main- 
 tain an action on the poliey, it eontaininji tlie provision : " Loss, if any. paynl)le to 
 niortnattei's as tlicir interest may appear," tliere l)einn no otlier niortjiante, alllionuh 
 tlie mortnajfe, l)ef(ire lUe aet ion was lirounlit, was s.itislied, lln- considiration of (lie 
 satisfael ion t)ein^; a ininsfer of the dama^ied property an<l I he policy. 
 
 Where a poliey is issued loone parly and assi;^ned to aiiol her, w ho has sueee. iled 
 to the interest in tlie property eovi-red hy the poliey, and in eonsenlinjj to sueli 
 a8sie;ninent the eoinpaiiy aKrets that the "loss, if any, sliall lie pajable lo (the 
 assif^nee) niorlgaKee, as his interest may appear," an action may he sustained i" the 
 assignee's name, but the complaint must make his interest appear. Viil( ChrismiMi 
 V. State Ins. Co. (ISSS), l((()r. if<:\. 
 
 In the ease of \Vest Coast liUmlier Co. v. State Invest. & Ins. Co. (Cal. ls'J-;i. 'X\ 
 I'ae. Ill p. li.-iS, referred toalleii(;th sii/ini S ;!7!l, note, it was held hy the ."supreme 
 Court of California, that the person to whom the loss was made i)a.>.vl('.e. mi.Lcht 
 maintiiin an action in his own n.inie for the amount of the loss, where the value of 
 his interest in the property exceeded such amount. The court said, benrinjj; upon 
 th.'; ruling; :-" Under our law an action may he maintained hy the parly in inter- 
 est. The courts, with some exceptions, held that the parly to whom the loss is 
 I)ayahle may sue : -Cone V. Ins. Co., (10 X.V. (ID): Chainherlain v. Ins. Co., •"i."! N '. H. 
 -4i). It is sullicient to say umler this head, that decisions to like eirect are to be 
 found enniiialiiin; from the courts of .Missouri. New .Icrsey, Illinois and many other 
 states. Where the ] roceeds of the policy aiv lo ;io in part to she assured and in part 
 to others, the authorities arc not uniform as to the luojier plainlilV The better 
 opinion, however, is believed to l)e thai all the heiieliciaries may unite as plaintills 
 in the action." 
 
 The court decided in Maxey v. Xew Hampshire Fire Ins. l"o. of Manchester 
 (Minn. 1S!);>), '>'•> X.W. Hep. 11*), that a (ire insurance policy, by the terms of which 
 the loss, if any, is made payable to a mortijanee as his interest may appear, is a con- 
 tract for the benetii of such inortuiafjcce : and he.ora person to whom he has .issiyiied 
 the ehiini afli'ra cause dS action lias accrued, is entitled lo recover in his own name 
 the full amouni of the insurance if the same does not exceed the amount due upon 
 the morictas-'e. 
 
 A mere contract of reinsurance creates no privilybet weep, the orininal insured 
 and the reinsurer, but where the loss or risk is ex|)ressly assumed by another 
 company, the oriiiinal insured may sue upon such conti-act, as haviu^i been ina<le for 
 his beiielit. This was decided in Travelers Ins. (_'o. v. California Ins. Co. (ISiHh. 1 
 X.I) l.")l, ■•iiijira. 
 
 The Kansas Sui)reme CiHirt has helil ihal, wlic. ■ a contractor dt'sired insurance 
 on a bnildint; which he was ereclin}.c, aiitl weiu with the owner loan agent lo make 
 application therefor, and, at the .ai^ciil"s sunj^estion, a iioliry for thi'i'e years was 
 written in tlie name of the owner, coniainint? the clause '■with a contractor's 
 insurance for thirty days," the policy ini^;lit be enforced in an action by the con- 
 tractor, the tire having occurred within thirty days iifter its issue. .Such was the 
 riiliufi in (lerman l''ire Ins. Uo. v. Thompson (ISUII) I:( Kan. .Jl)7. 
 
 In I'elxcr Mfjr. Co. v. St. Paul F. iV .M. Ins. Co.. (!«)()), 11 Fed. Uep. Sll. the court 
 decided licit warehoiiseinen who liavi? insured, in their own naini', cotton stored in 
 their warehouse, on a form of policy contaiiiin.u' t!ie special clause -'coltou in liales, 
 llieir own, or held by them in trust or on cominissiiui, or on Joint account with 
 others, or sold but not deli veicd," usual in warehouse insurance, may sue in iheir 
 own names and on proper juMof recover the entire timount of the loss. 
 
 The Court of Ajjpetils of West Virginia has held in Miirdock v. Franklin Ins. Co. 
 
ACTIONS l!Y AM) AGAINST IXSl'UANCK CnMPANIDS. 
 
 M'S 
 
 1 
 
 i 
 1 
 I 
 I 
 
 1 
 
 M8Sl)i, :t:t W. Va. Id", thai whi'i-f oiii' hire; iicrsim-ilty (if iiiiotliiT, iiiul lm> it, in liis 
 CMistixly and ioiitri)!, he iiiiiy iiisp.rc it in liis nwn naiiii' fni' tlic !;cnclii i>f I lie (i\\ iht ; 
 and hiiviii^r iloin- so with thi' authority of tlu' latter, lie iii.iv mu' ii|iiiii the policy in 
 his ow 11 iianip. avcrriiiji till' proiHTty iiisui-('d to in- his, and ri'coviT I'oi* the bciu'lll 
 of t 111' owner. 
 
 In ill) iidion at;iiiii:4 the (ieortcia Home Ins. t'o., n'forred In ii; Ins. ^ Fin. 
 Chroniele, vol. xvii, p. 11"). it has (piite rei-eiitly lieen decided, that "when the 
 holder of an insiiiaiKM' pi)lie>, deliheralely and aftef full opportunil v «>r investi- 
 Hali'iii. jiccei.led from the adjuster of the company ii sum in full payment f.f the loss 
 claimed liy him aii'l nave his receipt therefor. Ic could not allerwards maintain an 
 a"tioii aiiaiiist the coiniiany for the same loss, on :he vCi'oiiiid thai he had i>i'en 
 defrauded inio nrikiic.^ .i set llemeiit liy certain statements of tlie .uliuslcr that lor 
 certain leasoiis the company was not liahle, ii not app'ariiiK thai the ad.jusler, even 
 if llio statements in (|uestion were incorrect, had done anyililng to prevent the 
 complainant niakiM-!: a full investigation of his luteal fi»ihts in the I'leinises." 
 
 The followiriK weri' held i|uestions for the court and.jnry : - 
 
 Where there is no ilispiitc as to tacts, whether the r"(|uiienu'nts of ilie policy 
 have heeii complied with is a qiiestiau of law lor the court. HaU"r v. (ierman l-'ire 
 Ins. Co. (ISilili, 121 Ind. 4!Ki. 
 
 The <iuesl ion in an action on a lire policy, wlielher lln' iusureil Imildiiiic had 
 hecome v.icanl and unociMipicd. i~ one of fact lo lie delennined hy flie jury on the 
 evidence. — ( Deach, 1*17). 
 
 Where tlie assured is hound hy the stipulalioiis of a jiollcy suetl upon lo make 
 diligent ell'ort lo save his prop rty, whelher any part of his loss was due to his 
 iie;j,lect to mtike such elVort is a (|Uestion for the. jury. .lones v. Howard Ins. Co. 
 (ISSIh, 117 N.V. l(»;i. 
 
 The testimony in a case sliowiii;i: thai proofs of loss were furnislie.l within I he 
 time jirescrilied ill a policy, tlitil all the assiircd's hooks and papers were promptly 
 presented on the insurer's demand, llial adjustment of the loss was di'layed !iy the 
 company U!)on ' irions iiretexts, and that, after the limitalion as to hrin.::{iiiir suit 
 had expired, the company oll'ered lo ;j^o on and adjust the los.-, upon receipt of oi h t 
 books and papers demanded, it was held, that the (piestion whether or nol the 
 limitation had been waivnl hy the conijiany must he .>ul>mitled lo the jur) . lion- 
 nert v. Peiin. Ins. Co. ilsSili, 1:;;) Pa. -St. r,riH. 
 
 Where the ilefeiice lo an action on a lire policy was h:;sed U|)o;i a violation of the 
 condition , 'is to the insured properly hciii.r upon leased land, the testimony of iwo 
 agents of the oompauy thai, before the policy was issued, they had "!.-enera! know- 
 ledv:e"thal the l>uildiu,i!; slood on leased ground, lhouj;li lliey had no particular 
 knowledjte thereof, has been held sulll?ient to submit lo the jury on the queslion of 
 their kuowlcd.w. there beinj; no ijretence of intentional inisreprcsenlation on ihe 
 part of the insured. IJrothers v. California Ins. Co. (1S,S!)), ;i X. V. Suppl. Sil. 
 
 In a .Missouri case, wliere the jilaiutilV averred in his petitioti tliat, at the time 
 the policy was issued, the insiireil's a:4;'iit agreed with him that the policy .should 
 not exifire : that lu' would renew the same from year lo year ; i hat the |)!aiiuill should 
 have time to pay the premiums and jiay them at his convenience ; and I'nat it would 
 not allect the policy and insurance thereon if the cerlilicates of renew.il were not 
 delivered before any accident by hiirnin^c; and Ihe defendants denii'd the av.'rnieiit.s, 
 it was held by the Suiireme Cmrt, that the burden waw on the plaintiir to prove the 
 statements alli'fjed to have bi'en made to him: .and where ihe evidence w.is con- 
 llictin;.;-. the cpiesiion, whether it preponderated for or ii^rainst the pitiint i.;', was for 
 the jury and no! for the court to <lecide.~ ( Hcieh l.'l.'is). 
 
 Whether nridei- the condilion in a lire insurance policy, rcnderin;^ a |iolicy \'oid 
 by reason of the premise 1 insured beiiii; used for in iniiractiirinji or other jiurposcs 
 dillerelit from that set forth in the application or policy, or if the risk should be so 
 increased l)y means within the control of the assured, in an action upon such policy 
 the use made of tiie jircmises by the assured materially increased the I'isk, is a 
 
 j 
 
 i i ; 
 i ' i 
 
 !/! 
 
 i I 
 
 i 
 
(J, I ; -1 
 
 664 
 
 INSURANCE LAW OF CANADA. 
 
 395. Annulment of transfer, and rectification of error in 
 life insurance policy. — Whore u widow, as trustoe of tlio insol- 
 vent succession of her hite ]insl);ui(l, sued the (h>fen(hint and tlie 
 other defendant, the Sun Mntunl Life Insiirawe Ciiiiipani/, to annul 
 the truutifer of a policy of $2000 on her hushuud's life, which she 
 had transferred before his death for the honeiit of his creditors, 
 and askinu- that tlu> money l)t' paid over to her, the suit was 
 brought in Montreal, where defendant resided. Defen;^:\nt there- 
 upon instituted proceedings in the Court of Chancery. Ontario, to 
 enjoin the insurance coni[iany from paying the amount to i)laintiff. 
 The iiisura.ice company, in turn, prayed that the other defendant 
 be enjoined to desist from his proceedings betbrc the Court of 
 Chancery : — It was held, that the court had no jurisdiction. The 
 Quebec Statute 41 Vie, c. 14, limi 'cd the issue of injunctions to 
 the cases specially mentioned therein.' 
 
 Tt was also held, that the crennce resulting from tlie insurance 
 was a menble incorporel, a"'^. whether it wore considered the prop- 
 erty of the wife or of the succession of the husband, was governed 
 by the law of Ontario, and would be more ju-operly discussed in 
 the Court of Chancery of that proviiice.- 
 
 Tn an action on a premium note given for a life insurance 
 policy, the plea was, that the policy was different from what was 
 agreed upon between defendant and the jjlaintifl's agent. The 
 policy was payable at death oid\-, whereas it was to be made [lay- 
 able in twenty years. The evidence was conflicting, but it was 
 hold in review, reversing the first judgment, that the defendant 
 evidently uiulerstood that it would be made payable in twenty 
 years, and tlK> action was therefore dismissed.' 
 
 (|iu'sti()ii of f.ii't foi' the jury, iiiul lliey iiiv iio( 0()iH;lu(U'<i l)y the testimony of cxjiorts 
 upon tha( )ininl. IvinUci' v. Milw. Mccli. Mut. Ins. Co. (l.s,si((, ~i Wis. 170. 
 
 Wlu'tluT oi- not II ohiiu;iV In tlic u.'se of insured premises, from a i^enenil mor- 
 chandiso store with coal oil lamps to .'i variety theatre witli eleetrie lii^hts, increased 
 the risU, in violation of a provision that the iiolicy Hhonld he void If the hazard 
 should he increased hy any chanj^e in the po.^session, was held by tlie Supremo 
 Court of ()ri','j;ou lo he a(iueslionfor tho .jury, and expert leslimnpy was inadniis.sil)le, 
 the dotermiiuitiou of the (|uestioii involving: simply mattets of loinmon kuowledne 
 or ol)H(!rvaliou. — llalin v. (iuardiaii Ass. Co. (Or. ISl);!), :!:.' I'.ie. Hep. US.). 
 
 ' Parent v. .Shearer ci' ir/,. 2 I,. \. l^."), aii.l 2:t 1.. C. .1. I:;, .s. C, ISTP. ■; Ih. 
 
 3 .Sun Mutual Life fus. (Jo. & Heland. r, 1,. N. !•_'. « 
 
 The following- are rules of evideiue as hiid down in actions on life insurance 
 policies in Tuitcd States courts. They are in some respects analojjous to other cases 
 recorded .iit/ira : - 
 
 Where'defendant alieijes tliat the i)oliry sued on was taken out hy plaiutill' as a 
 wag''riii,u; policy, its afjtenl may testily that he nrwi'd Ihc party to api)ly, and that the 
 
ACTIONS BY AN'l) AGAIX.'^T IXSURANCE CoMI'AXIES. 
 
 (565 
 
 L'l-tS 
 
 ililo, 
 
 (he 
 
 iissiircd piiiil tile premiuni and tlionnlit lit first of inakiiijj: |il.unHtr.s miiior children 
 the beneticiaries, hiil cDtiiduded to make plaiiuiH' the beiicliciary, in iirdor thai in 
 the event of liis niarrlajjie it niit;lit ho ulrmwd inoiv easily. (Heacli, l.'ii")). 
 
 In an action iit law on a p')licy of life insuranci", pivyahlc at n I'.iy named in the 
 policy, evidence is iiKidniissilile. in defenci'. to show that a dilt'erent day should have 
 hi^iMi written. — I'iiMce v. Charter Oak Life- In-., t'o. (1><><I), lliS Mass. l.")l. 
 
 The i-*siie in one case was as to the authority of a general aKcnt of a life insur- 
 ance company to a^ree for a rebate of i)rcm'um to the policy holder. It was held, 
 that upon stieli issue evidence nd^ht be niveii of similar contracts made about the 
 same time by the ajient with difl'erent jiarties, api)roved or adopted by the company ; 
 but, if it apiieared that the comiiany's contract in relation to the otln^r contracts 
 proceeded in disallirni.iiice of the agent's authoiity to make them, testimony eon- 
 ceriiinjj; them would not be relevant to the issue on trial. Thompson v. X. Y. lafe 
 Ins. Co. (lS!)2i, 21 Or. Hiii. 
 
 Where a coini)any defended an action in I'eiinsylviinia on the f^round that they 
 had, without notice of an adverse claim, p.iid the sum assured to an assi^ni'e of the 
 policy, the burden was held to b' upon the i)laiiii ill'lo rel)ut {he priiiin I'lirir defence, 
 by evidence that the assigmnent was fraudulently obtained from the assured, and 
 that before jiayment the company had notice. And to rebut this defence, evidence 
 of the acts and declarations of the company's local a;zenl to solicit insurance, ni.aiU' 
 after the jiaynn-nt upon such assignment and receipt, was held inadmissible with- 
 out evidence that the at;ent's knowledge was acipiired. and his acts done, as the 
 snb-anent of tlie comi>any, and within the scope of his ditties as such. l''iirther, 
 evidence that a letter was written and mailed to the company by one who wrote as 
 a stranjicr, and not as havin;^ authority, direcliiiK the company not to pay, was 
 iusullicient to put the company u])on notice or imiuiry,— .Vorthwestern .Mut. l-ife 
 Ins. Co. V. Rotli (ISSti), lis l>a, St. :i2i). 
 
 The burden of iiroof as to the forfeiture of a policy is with the defendant, it 
 being an allimative defence. Declarations by the insured, admitting forfeiture of 
 the policy, are not admissible in an action upon a life jiolicy as against the benell- 
 ciary. -Dial v. Valley .Mut. Life .-Vss. (ISSiO, 2!l So. C. .'illll. Infra p, tilKi. 
 
 Statements of the agent of a coiiip;iny, relative to his insuring the deceased, 
 made subsei|ucnt to such Insurance, cannot be proven against the company as jiart 
 of the i7'.s i/cstu in an action on a life jioliey. (Dcacli, l:!27l. 
 
 Evidence of a breach of warranty, by taking other insurance, is inadmissible 
 wiiere no such defence is alleged in the answer.— (Heacli, llt27>. 
 
 Where a life assurance policy [irovides that, if the assured should die by his own 
 hand when insane, the company should only be liable for the pri'ininms actually 
 paid, with interest, the burden of showing the coiidil ion of mind is on the defendant, 
 and it mn^t establish not only his insanity, but that he tired the shot \vitli intem lo 
 take his life. -.Mut. Hen. late Ins. ("o. v. Davis' Kx'r (ISSil), S? Ky. .-)ll. 
 
 On the ipiestion of privileged eommunieations, the Supreme Court of the T'liiled 
 States has held, that the provision in the New York Civil Oide, that "a person 
 fully authorized to practise physic or surgery shall not be allow (■<! to disclose any 
 information -vhich he iicipiired in atleiidiiig a patient in a professional capacity, and 
 which was necessary to enable him to act in that capicity," is obligatory up,m the 
 courts of the I'liiled .States silting within that state in trials at eonimon law. Conn. 
 Mut, ]<ife Ins. Co. v. Ciiiou I'rust Co. dssh, \\-j. \\ s. li.'iil. 
 
 In Adreveno v. .Mut. lies. I'nnd Lite .Vss. (I,ss.S), ;t| 1.',m1. Hep., S7I1, Thayer, .L, in 
 till" Federal Court for the Eastern District of .Missouri, has held, that the iirovision 
 of the .' .issouri statute, prohibiiing a physician from testifying as to any information 
 he may have acipiircd from any patient while visiting lilin professionally, may be 
 waived by the iiatieni, and, when waived by a clause in an application for life insur- 
 ance, such waiver is binding on the benelieiary. He saiil : "It has been held in 
 this state In three eases, vi/., : the case of (iroll v. Tower, S.l Mo. 'Sh'i ; Carriiigli>n v. 
 City of St. Louis, .sii .Mo. -JIW: s. c. 1 S. W. liep. 2lii: and S(piires v. City of Chilli- 
 
 1] 
 
 i'i 
 
 ' 'I' 
 
w 
 
 . 
 
 \ ■ 
 
 
 " !■ ! 
 
 !/i 
 
 
 066 
 
 INSURAXCE LAW OF CANADA. 
 
 39G. Policy reserving' control of legal proceedings to com- 
 pany. — Til ill! in'tioii upon ill! c'm[iloyor's liability [(olicy, whoreby 
 the (let'eiulaiits ns^reoil to piy the [>huiitiil all i^nins up to a certain 
 
 col 111', S!» Mil. 21t\ ; s. c. 1 S. W. Uo\>. '2:i. tliut this sratiitc renders a physician iiiconi- 
 jjctetit lo lestif'y as to tlie i)liysioal couililioii of a patient in those eases only where 
 (lie |)atient or his leyral rei)r(senlatives insist thai lie shall not testify. In other 
 worrts, the statute is construed in this state as conferring; a privile;;e merely that 
 may he waived: il is not declaratory of any puhiic policy. The jmhlic is not eon- 
 corned in e.xchidinv; the testimony of a physi<ian as to the condition of a patient, if 
 the patient himself does not oli.ject to such disclosures. In tiiis respect, the courts 
 of this state follow the rnliniis in Xew 'S'ork .tnd Michi;j;an under a similar statute, 
 as ai)pears liy the eases of t^ohen v. Ins. ('o., II X. Y. Super. Cl. L'ilii ; Hailroa<l Co. v, 
 Martin. II Mich. (il!7 ; s. c. :{ X. W. Itep. I7;i. .\s the jiatienl is at lilierly lo waive 
 the pri\ilcu;e which the law adintl.- him, it appears to ni'.^ it is immaterial whether 
 the patient waives ihe jirivilcLre liy callinyr the physician lo leslify in his hehalf, or 
 whether he waives it, as in this case, hy a clause contained in the contract on which 
 the suit is hrou^jht." 
 
 Statements in the jjroof of dear!) made hy the physician of the insured, as lo the 
 previous coniplaints and ailments of the insured, are jirivilcfjed communications 
 within the meaninji of the Indiana statute and not ailmissihlc to show that the 
 answeis made to certain ipiestiiins in the ap|)Iica!ion for insiirance xvere false. — 
 Dreier v. Continental Life Ins. Cn. of Ilarlford (lSs'.-,|, iJl I.V,1. Kcp. (i7(l. 
 
 'I'he followii;jj; are decisions on <|He>lions lor fh<! .jury : — 
 
 AVliere, in an action on a life policy, the defence hein;^- that the insured had 
 falsely stated in his apiilication that he h.id not employed a ))hysician duriii;; the 
 preiediiiK year, a physician teslilled that he had prescribed for the insurcil duriii.ij; 
 that period, and inemhers of the family of insured, whom he testilled were present 
 at tlie lime, testilled tli.it they hail no reeiitlcct ion of the circumstance, the SuprtMne 
 Court of Pennsylvania held, that il w.is proper to siiomit the i|iiestion to t he Jtii'v. as 
 Ihe physician mi'j;ht li/ive heen niistaUen as to the dal e. -(neacli, }'.'.'^X). 
 
 An olijeclion that an aclion on a life insuranco iioliey should not have been tried 
 liy a .jury, hecansi' an equitable defence was pleaihd. comes loo late when it is (irst 
 made on an appeal,— Meurrue v. United liife & Ace. Ins. Co. (lSii:h. iiit'rn. 
 
 Then' bi'in;.; evidence in an iiel ion on a life policy tliat the ))laintill'applied to the 
 local ameiit and secretary of the insui'er for blanks for makinit out proof of the death 
 of the insiiiiMl, and t'ii'.> were refused on the lii'oiiiid llial the policy had been h>r- 
 felled. Ihe Suprem ' l^onrl of .South C',iroIin;i held, that a motion for nonsuit was 
 properl\ refused, there beint; evi<lence of the condition i'e(purin,j; proo! which should 
 besubinilted lo the. jury. -Dial v. \'alley Mut, Life Ass. dssil). :j!l S. C. ."ilKI, .si/yi/v* p. lid."). 
 
 In an act Ion on a life ii'siirance policy, il will not be held as a mailer of law tint 
 tlic insanity of the insured, when the application for insurance was made, was an 
 unsound condition of heiilth. It is a (luostion of fact to be solved by the evidence. 
 Where there is evidenci', in an aclion upon a life insurance policy in which an eipiil- 
 (ihle dcfenc? has beiMi llled, h) support tlie contentions of riolli parlies on the vital 
 iss"es. it is proper to submit the issues to I he Jili'V. Me.Lfiiiev. Iniied Life ^: .Vcc. 
 ;i.. . Co. llS!);!i. lil \. >'. .s^uppl. (ilS. .iii/ii-d. 
 
 V.'liere a iiolicy of lil'i' insurance had beeil lost, the Muryland Court of ApjieaN 
 held, that it wasforlhe jurytosuy, in an iictlou up m il, whether tlu' defendant 
 had proved llijit it contained the clmise ai^ainst actions after ! lie lapse of si\ months 
 frcin the death. (Heaidi, I:i:i7l. 
 
 Lven where the apiilicati(.n is made a part of tlu- contract, yet. ordinarily at 
 'east, it contains none of the olilinat ions assunieil b\ t he insurer ; hence, il is ni'ces- 
 Niiry, In an action auaiiist the insui'ir on the emit i.hI , tor the [ilainl 111' lo set out the 
 application as a part of the coiilnict. — Hril I \ . .\lul. I ten, ''o.. Hi S. Iv Hep, SiHi, (ISild). 
 
I 
 
 ACTIONS liV AND AGAINST INSURANCE COMPANIES. 
 
 (]G7 
 
 llio 
 
 for- 
 was 
 uild 
 lili.'i. 
 lIllU 
 an 
 
 'lUH'. 
 
 (|Mii- 
 viial 
 Ace. 
 
 limit, ami full co.^t8 of suit, it any, in respet-t of which the [>laintiff 
 shouM l)Ci.'onu' liable to his employees tor injuries reeeived whilst 
 in Ills servii'e, sul>jeet to the eondition, amongst others, that " if 
 any proeetMlings hi' taken to enforce any claim, the company shall 
 liavo the absolute conduct and control ot <lefending the same 
 throuirhout, in the name and on behalf of the em[)loyer, retaining 
 or employing their own solicitors and counsel therefor" ; thnt the 
 plaintifi was not entitled, in the face of such a stipulation, to claim 
 from the del'cn<l:ints the amount of a judgment obtained against 
 him by an employee in an action defended by the plaintiti through 
 his own solicitor and counsel, leaving the defendants to show as a 
 ilefence or by way id counter-claim that they could have done 
 better by didemling it themselves: nor was an otter l)y the plain- 
 tiff, at a time when the action was at issue and on the peremptory 
 list for tri;d the following day, to hand over the defence to the 
 defendants" solicitors a sutlicient compliance with the condition.' 
 
 397. Notice of transfer and subrogation a condition pre- 
 cedent to suit by company, — [n the ciise of the Z?. d- 0. X. <'<■. & 
 
 Tjafreniere,- the action was brought to recover the value ol' a cargo 
 of peas lost in conseiiuence ot a collision with a steand)oat belong- 
 ing to defendants, in Ijiichine Canid. I'pon the [>lea tlnit [ilaintili 
 had been paid the value oftlie peasln' the insurers, for whom plain- 
 titis were a mere prrle do))/ and had no interest, it was (h'cided. con- 
 tirming the judgment nf tlu' court below, that, not wilhstam ling the 
 i>avment bv the insurers, the latter had no riu-ht to sue until notice of 
 the *ransfer and subri>giiti(Ui. and the action was properly iii'inight. 
 
 398, Measure of damages recoveraoie In iinactiiui against 
 
 the (5. T. R. Co. till' causing the death id the [ilaintiff's husband 
 by neglig''nce <if their servants, it appeared liiat the life oi tlie 
 decejised was insured, and on the ti'ial the learned judge de<bicied 
 the aiuouni of ihc insurance fi'oni the damages assessed. 'Phc 
 Divisional ('ouri ovcrrule(l lhi> and dii'ccted the verdict to staml 
 tor the full amouni foMnd liylhejury. This was atlirnu'd liylhc 
 Court of .\ppeal, It \va^ held, that the iudguiciil in liiis rc>pect 
 should be aliirnu'd. 
 
 I WliyU" \. .M.iriur. Ac. . iii^. ( o., (IS!).")) Q.il.l) :!(> ().!!. l.^i:!: 1.-. (an. I,av\ 'limes 
 (ISlCiK .s(i ; I't'lirii'il lo sit/nK i! -Ti'. nolo.— Si'i' iilsii iluvi n \. I'an|il. I.i.ili. .\ss. Corp.. 
 (i7N W. Ui'p. (l.siiiii, m. -l L.N, :iii| ((j.Il. ISTIM. 
 
 iTIuMl.T.K. Cn. \ It.'.Uftl. KlS.C.li. 7i;i, ami m-.' (i 'I'.H. \ . .IcMnin;.',-. I.". A. It. 
 177, l:i A|.|i. Cas. sill), -iiiiiwn v. .McUao, 17l).l{. 71:!. 
 
 I'lu' int'iisui'i' iif ilainuK'i's rci'ovpralili' was lln' p.iini in ilisiiiilc in llic cum' hI' 
 
 h.i 
 

 668 
 
 IXvSURANCE LAW OF CANADA. 
 
 r '■ 
 
 Ilii 
 
 399. Action for calls -False entry by agent in subscription 
 book— Alleged acquiescence by receipt of dividend — The Stadu- 
 c'oiia Insunuict' Compiuiy, ineoi'poratcMl in 1874, oiiqiloyed looal 
 ageut8 to obtain ;-ul)scriptions for stock in tlio district of Quobt'c, 
 such local agents to receive a commission on shares subscribed. At 
 the solicitation ofone of these local agents, F. X. C, intending to 
 subscribe for five paid up shares, jiaid 6500 and signed his name to 
 the subscription book, the columns tor the amount of the sub- 
 scription and the number ot shares being at the time left in blank. 
 These columns were afterwards, in the presence of aiipellant. tilled 
 in with the number of shares (50 shares) by the agent ot the c(im- 
 pan\', without F. X. C.'s consent. Having discovered his position, 
 one of appellant's Itrrthers, who had also subscribed in the same 
 way, went next day to (Juebec and endeavored, but ineftectually, 
 to induce the company to relieve them from the larger liability. 
 At the end of the year 1875, the company declared a dividend of 
 10 per cent on the paid up capital (monlaul verse) and the plaintift 
 received a cheque for $50, for which he gave a recei[>t. In the 
 
 Bliim V. Dresden Mut. Kire Ins. Co. (1,S;);{), H.") Me. :J8lt, wliicli was brou-ilit before tlie 
 Sui)renie Court of Maine. The policy imd liyliiws expi-essjy limited tlie insurance to 
 " two-lliirds of tlie actual destructible value of the buildings," and the court decided 
 that the assured was not entitled to recover more tlian that i)roportion, notwith- 
 standing another condition which provided, that " tlie (hunaRe is to be paid in full, 
 not exceeding!; the amount insured, and is to be estimated according to the fair value 
 of the property at I lie time of (ire." Tlu' court said, that the " language used in all 
 these provisions is so plain that l)\it one interpretation can be given to it : that in no 
 event is the company liable for more than two thirds the fair cash value of tiie 
 property at the time of loss. Ft was, therefore, not a 'valued policy.'" The court 
 also exi)lained the word "(lama,'j;e," used in the condition relied on by jjlaintilV " the 
 obvious meaning of which is that the fair cash value is to be asccrtaitu'd, and the 
 amount for which the company is liable is to be estimated therefrom." 
 
 Sec also State Ins. Co. of Des Moines, Iowa v. Taylor (l.siHt), 11 Colo. liHl, ride 
 inih'.v, wheie the court said that, to arrive at the value at the time of the loss, " the 
 original cost, the cost of a like building at the t imc of Ihc trial, and the dill'ei'encc in 
 value b_'t ween the house burned and a new one by reason of age and use, are all 
 proiier subjects of eiuiuiry.' 
 
 In .Sun Fire Ollice of London v. ,\ycrst (l.'^iKt), Wl Xi'b. ISI, the court api)roved an 
 instruction to thejtiry that they slio\ild Had the fair value of the jiroperty destroyed 
 (household furniture and wearing apparel in actuiil use), and that such value was 
 not what a .junU shop or second hand dealer would give for ihem, or what they 
 would biing under extraordinary circtnnslanci's or at a forced sale. Neither is It 
 " to be understdod tliat any fanciful notions of the value entertained by the owner 
 are properly to be considered". ..." this \iilue, on tlie one hand, not to lie swollen by 
 a sentimental i)artiality of its owner, and, on the other, not to be subjecied to the 
 odium and suspicion generally iiu'hlent to second hand clothing or furnitin'c." 
 
 The views above expressed are not without support in other adjudicated cases 
 involving the same <|ucstion. I'lV/c (iere v. Ins. Co., (!7 Iowa 27:{ ; 'S-\ N. AV. Kep. 
 i:t7 : 1'.j X. \V. Hep. l.-)(i.— .loy v. Ins. Co., K) Iowa VI ; s c. IS N. W. Hep. Il)l!>. 
 
r 
 
 ACTIONS RY AND AGAINST INSURANCE COMPANIES. 
 
 669 
 
 following year the company suftcrod heavy losses, and, notwith- 
 standing F.X.C.'s repeated endeavors to be relieved from the larger 
 liability, brought an aetion against him to recover the third, tburth, 
 tifth and sixth calls of 5 per cent on 50 shares of $100 each, alleged 
 to have been snl)scribed by F. X. C. in the capital stock of the 
 i-ompany. 
 
 The court decided, Ritchie, C. J., ihihitante, reversing the 
 judgment of the court below, that the evidence showed the appel- 
 lant never entered into a contract to take 50 shares ; that the 
 receipt given for a dividend of 10 per cent on the amount actually 
 paid (montant versij) Avas not an, admission of his liability for the 
 larger amount, and he, therefore, was not esto})pe<l from showing 
 that he was never in fact holder of 50 shares in the capital stock 
 of tlu' company.' 
 
 ■400. Assessment upon interest — It has also been a subject 
 of dispute whether an insurance corporation is liable to be assesseil 
 upon the interest arising upon investments of their reserve tund, 
 and where the County Court Judge had decided, on aiijieal from 
 the Court of Revision, that the [ilaintitl^s were liable under sec. .'3-lr, 
 and sec. 2, sub-sec. 10. of the (\>nsolidated Assessment Act, 55 Vic, 
 cli. 4.S, although such interest had always been added to the reserve 
 fund and re-invested as part ot it, the plaintiff's brought an action 
 to have the assessment declared illegal : — 
 
 It was held that, althougli the plaintitts were hoiuid i)y law 
 to keep up the reserve tund upon a certain st'ale. the amount vary- 
 ing according to the values of the lives insured by them, as iixe(l 
 by actuaries' tables, yet they were not bound to ai)ply the income 
 arising from the investments of the fund in keeping the fund at its 
 proiier level, but might make the necessary increase with any 
 money whatever, and the Judge of the County Court had full 
 jurisdiction and the matter was, therefore, res JKdiradi.'- 
 
 401. Jury giving an answer beyond their proper functions. 
 
 — Where the jury, after answering a question proposeil to tlnun, 
 add an expression of o^iinion, c.//., when in an aetion for the 
 amount of an accident policy which did not cover death resulting 
 trom fighting, wri'stling or violating the law, the jury said, in 
 
 ' Su|in'iiu' ("luirl of (.'.uiiulii. Cote v. StiidacDriii Ins. Co., li S.C.H. I'.tH. 
 - Ciinlcdi-'niticiii Lile Ash. v. Corp. of Cily of Toronto, ;it 0,1!. tilit ; nud sue liivin 
 V. .l';tiia Ins. Co., :i() O. IC i\. sii/ini, 
 
vm 
 
 W 
 
 \ 
 
 1,' / ^^' 
 
 
 
 670 
 
 INSURANCE LAW OF CANADA. 
 
 ''■'} 
 
 answer to questions, tliat the deceased was rtgliting, wrestling atid 
 violating the law, hut not as intended hy the true interpretation 
 of the policy, the court will reject that part of the answer which is 
 heyond the i)roper lunctious of the jury, and give etJect to the 
 relevant portion of the answer.' 
 
 402, Stamps on policies. — In an action for §1.80, amount 
 paid by phiintift for stam[)s under the Act of the Quehi'c Legisla- 
 ture with regard to stamps on insurance i)olieies, which Act was 
 afterwards declared by the Privy Council to be unconstitutional, 
 the defeiKhints i»leaded, lirst, that the stamps being transferable, 
 the iilaintitl .^boild have produced them or have tendered them to 
 defei.hini luit the latter might claim the amount from the 
 
 governm. 1 was further pleaded that the defendants had 
 
 paid the amo\int over to the government, acting, as it were, as tin- 
 agents (){ ■be goverMrni'iit, and lia<l not proHtted in any way by 
 the payment, > * sii. ;._; did what they wei'e re(piired 1)y law to 
 do. I'laintitf answeriii anl produced stamps to the amount 
 claimed with his answer. 
 
 The <•< irt held, that the plaintitt had a govxl claim against 
 the insurance company for the amouni charged to him lor the 
 stamps, but as plaintitt had not produced the stam[)s with his 
 action, he wi)uld have to pay costs.- 
 
 ' Tui'iilmll V. Tiviv . fiis. Co., H. .1. Q. 4 .S. C. liitS, lelVrred to supra S :)S|. 
 - Diivid V. Stiulaconii Iiis. Co., :i L. \. lis. (S. C. issii). 
 

 CIIAPTKR XXir. 
 
 LIMITATION OR I'liKSCUII'TIOX OK ACTIONS. 
 
 ItCi. (;i;.\l:i!Al, liK.MAltKS I.DCIS'.A- 
 
 TiVK i;na( r.MKNTs AM> ,1 ruispia'- 
 ni:N(i-: on i.rMiiATioN. 
 
 101. .Vmi:i(|(a\ ]ii:( isio.Ns (i.\ i.rMi- 
 
 'I'ATIO.N. 
 
 •105. I.iMriA'noN AS ic ri.Ari: ok 
 
 l!UIN(llN(i sill'. 
 
 403. General remarks Legislative enactments and juris- 
 prudence on limitation. — In Onturio, Maiiitolia and British 
 Coltinibia, by sialutory coiitlitioiis, actions upon ii lire iiisiiranco 
 contract are al).s()lutcly liarrcd unless comnu'iieed within one year 
 t'roiii till' loss.' 
 
 Jn ()iu.*be<', th(U'(' is no sncli limitation unless it is stipnlati'd in 
 the [lolicy. It was t'oriaerly held that such a sti|iulati(jn was in- 
 operative,- hut this decision h: • hecn overruled.' 
 
 The (iuel>ec Court ol' Appeals in 188(5 appeared to have 
 iloubts as to its valiility ;' l)nt in the t'ollowiiii.^- year they held it 
 valid,' ami this last decision was coiitirnieil l)y (la' Supreme (Jourt 
 of Canada." 
 
 The ohject of the condition is not to foi'cdose a right and [»re- 
 vent a resort to the proper trihunal, hut to coin[iel a spi'cdy resoi't 
 and a termination of tin' conti'ovei'sy while the facts are fresh in 
 tile rocollection of the parties and witnesses, and the i>rf)ofs acces- 
 sible. Claims made aftei- they have becoine stale involve consider- 
 ublo difficulty. " 
 
 Where the covenant by the insurers is to pay ;■ certain time 
 after the loss, tiie I'cal period within which the assured could sue 
 
 ' (K) Vic, I!. ;«)(().», s. Ills, ss. :i:J — It. .'s, .M . ISill. c. .",!), still , con. :iL' H. C. Ins. 
 
 Pol. Aol, ISlllt, C. IL'. slut. I'OIl. L'L'. 
 
 Si'f iilsn iiifrti as lo liiiiil al inn in HIV aiul iiccidi'iil liisuraiicc in Oiitarin. 
 - Wilsim V. Stale Kirc Ins. Co., 7 I-. C. .1. tS-l 
 
 '■' Honsscaii V. Itoval Iii.s. Co., .M. I.. U. 1 ,S. C, :«».").— Coiiicll v. I, pi & Liln & dlolii.' 
 Ins. Co., I I I,. C. .1. -Su. Q. H. 
 
 * Anehoi- Al.iiinc Ins. Co. fc Alien, 111 g. L. U. I. 
 
 •' Allen &- Mi'icliaiils' Marini' Ins. C.i., M. L. U. It 0. Ii. i!!i:i. 
 
 " fh.. 1.1 .S. C. It. IS8. - I'in'Icr's I.invs of Ins., 177. 
 
 f ,iii 
 
;r ' 
 
 >!iiiifispifi \ 
 
 r 
 
 672 
 
 INSURANCE LAW OF CANADA. 
 
 may l)y the limiting condition I)e virtually reduced to the interval 
 between the day at which }'aynient ought to be made and the la.st 
 day of the period within which action must, by the condition, be 
 brought, since the time for bringing the action, in rhe absence of 
 special terms, will run from the happening of the event insured 
 against, but the insured will not know, utitil after the time Lnvcn 
 to the company to pay, whether they intend to settle the claim or 
 make it necessary for him to sue them.' 
 
 But where the other conditions are auch that a reasonable 
 compliance with them is inconsistent with a compliance with the 
 condition requiring suit to be brought within a specified time, the 
 latter will not be allowed to defeat a recovery. Thus, where suit 
 has to be brought within six months from the time of the loss, and 
 the loss is not payable until sixty days after the adjustment, and 
 the parties, in good faith and without objection, are occupied so 
 long in adjusting the loss that sixty days from the date of the 
 adjustment docs not expire within the six months, a suit brought 
 at the expiration of sixty days will be nuuntained.- 
 
 There was much controversy on the subject ot this condition 
 in England ; but since the case of Worsley v. Wood (6 T. R. 710), 
 it is settled law there that the condition is effectual and Ic^-allv 
 binding ; and there is no doubt that it is so in Canada. 
 
 If the prescribed time be allowed to elapse without suit, there 
 remains no longer a legal liability in any form. 
 
 It was said formerly, that the contract of insurance is of a 
 peculiar description, resembling a wagering contract, in which the 
 insurers for a small premium undertake to indemnify the partv 
 who sufters the loss ; that the amount for which they mav 
 become responsible greatly exceeds the premium paid, and the 
 liability depends upon a contingency over whicli neither party has 
 any control ; that, for whatever the insi'rer nuiy eventually have 
 to pay, he becomes liable by positive stipulation rather than upon 
 any principle of natural justice growing out of an adequate con- 
 sideration received, and that, so far as this liability exceeds the 
 premium paid, it more nearly resembles a penalty than a simple 
 debt, and this would more initurally fall into the class of cases in 
 which statutes prescribing a time within, which suit shall be brouglit, 
 
 ' Porter's Laws of Ins., ITS. 
 
 - Miiv, IS7, and see Peoria Sugar Refg. Co. v. Can. Fire ic Mar. Ins. Co., 12 A.R. 
 ■lis and other cases /(i^Vrt. 
 
 

 1 ' '^ ■' 
 
 LIMITATION OR PRESCRIPTION OF ACTIONS. 
 
 (573 
 
 :it 
 
 liore 
 
 of a 
 
 tlu- 
 
 |)iirty 
 
 may 
 
 tlio 
 
 has 
 
 lave 
 
 [ipoii 
 
 con- 
 
 the 
 
 !t< in 
 ;lit, 
 
 Ia.r. 
 
 are construed as limitations upon the liability rather than mere 
 denials of a remedy. This doctrine, however, is no longer appli- 
 cable under the modern contract, in which the premium represents 
 an adequate return for the risk. 
 
 Ft was intimated, however, in an American case, that such a 
 limitation might not be upheld if the period within which suit 
 must be brought l»e so unreasonalde as to raise a presumption of 
 imposition or undue advantage in some way.' 
 
 As has been pointed out,- any variation of the Ontario, 
 Manitoba or British Columbia statutory conditions must, to be 
 valid, be held just and reasonable by the court. 
 
 The condition as to limitation may, however, be waived. 
 Holding out hopes of an amicable atljustment, and generally any 
 act of the insurer inducing delay, might be a waiver. ' 
 
 ' May, W2 & tSS ; & soe Cornell v. Lpl. & Ltlii. & Globi' Ins. Co., It Ll\.T. '^57 sii})ra. 
 
 It hiis been said in the United States that, the conditions, usual in policies of 
 insurance of all kinds, limitinji; the period within which suits are to be brought 
 upon thetn as to their construction, do not assiniilute to the general statutes of 
 limitation of suits : they are treated as part of the contract of insurance and the 
 same rules governing the construction of other conditions in such contracts are 
 applied, as, for instance, the court must confine the parties to the contract they 
 have made and not modify or enlarge it to the extent to make ji new contract for 
 the parties. Speaking as to the validity of a condition of this kin<l, Mr. .Iiistiee 
 Field said, in Hiddlesbarger v, Hartford Ins. Co., 7 Wall. 'M) : "The conditions in 
 policies requiring notice of loss to be given and proofs of the amount to be furnished 
 the insurers within certain prescribed i)eriods, must be strictly complied with to 
 enable the insured to recover. Now, it is not perceived that the condition under 
 couslderution stands upon any diirerent footing. The contract of insurance is a 
 voluntary one, and the insurers have a right to designate the terms upon which 
 they will be responsible for losses. .Vnd it is not an unreasonable term that, in case 
 of a controversy upon a loss, resort should be had by the assured to the proper 
 tribunal whilst the transaction is recent and the proofs resi)ecting it are accessible." 
 
 The courts generally have sustained the validity of such limitations.— tHeach, 
 1259). 
 
 The Nebraska Supreme Court, however, has held, that such a condition, the 
 period being much less than that li.\ed by the statute of limitations of that state, was 
 not binding on the insured unless it was emlMxlied in the application for the policy, 
 or had a consideration to support it.— (Harnes v. .\lcMurty (18!M)), 2!l Neb. 17S). 
 
 And the North Dakota Sujireme Co\irt has held that such a condition in policies 
 issued in Dakota upon property therein, though it W(mld be upheld at common law 
 was void under their statute, which declares that "every stipulation or condition in 
 a contract, by which any party thereto is restricted from enforcing his rights under 
 the contract by the usual legal proceedings in the ordinary tribunals, or which limits 
 the time within which he may thus enforce his rights, is voiil."— (Johnson v. Dakota 
 F. & M. Ins. Co. (ISIK)), 1 N.D. 107. 
 
 - liiiprn S 247, page 'M\. 
 
 ■' See intra. 
 
 The (luestion of a waiver of statutory condition 22 has been diHcus.sed at length 
 in Cousineau v. Citv of London Fire Ins. Co., 15 O.H. .W, int'ra, page (!7(i, 
 
 43 
 
 i I 
 
 I , 'I 
 
 h 
 
 
h'- :i 
 
 ' 
 
 674 
 
 INSURANCE LAW OF CANADA. 
 
 
 In Ontario, an action under a oontraet of insuranoe of tlu- 
 person ' may l)e commenced at any time within a year after the 
 happening of the event insured against ; but if it is shown to the 
 satisfaction of a judge ot the High Court, or the Master in Cham- 
 bers, that there was a reasonable excuse for not commencing the 
 action Avirhin that period, the limitation maj^ be extended for a 
 lurther term of six months. 
 
 Under tbe general rule in Quebec, a claim for insurance under 
 a policy is prescribed in five years. 
 
 It has been held in Quebec, that when a company absolutely 
 repudiates tbe insurance ettected by the deposit receipt, and when 
 the policy has not issued, the right of action accrues at once, and 
 there is no necessity for giving the preliminary notices and con- 
 forming to the delay and other conditions precedent in case of loss 
 endorsed upon the company's policies.' 
 
 The preliminary proofs under a tire policy, made after the 
 fif'^'en days within which the condition endorsed tliereon rerpiired 
 the same to be furnished, are sufiicieiit when the condition states 
 after the i)ro vision as to the 15 days that until sucli pi'oofs are 
 made, no right of action shall accrue.'' 
 
 Mackay, J., in rendering judgment in this case remarked that, 
 if the Avord "unless" had been used instead of the word "until" 
 the 15 days would have been a 'erme dc riijenr." 
 
 It was held in one Quebec case, that where before the expiry- 
 of tbe 90 days delay allowed by tbe condition of tlie policy an 
 insurance company positively refuses to pay a claim under it, suit 
 may be brought upon the policy without awaiting the termiiuition 
 of such delay.' 
 
 But tbe Supreme Court of Canada have ruled against this 
 pretension." Tbe conditions on a policy never delivered to the 
 assured until after loss cannot, however, bind him. " 
 
 It has been considered in Ontario that a condition, that anv 
 action on the policy should be barred " unless commenced within 
 
 1 00 Vic, e. H(l (O.), s. 2, ss. ;tO. (It is evidently owiiiR to ii clt'rical error tliat sul)- 
 section 'M, iiisteiid of 'M\ of section 2 Ims heeii referred to in section 147 of tlie Ont. 
 Ins. Act, 1H!)7). 
 
 - II).. s. 1 is, ss. 2. ■' Jones v. Sun Mm. Ins. Co., 7 H. L. :iS7. 
 ' (ioodwin & I.iine.isliire Ins. Co., IS 1..C.-L 1, and see .sitprii . 
 
 ■' Iiiifarjj;e v. Liverpool & London & Clobe Ins. Co., 17 L.C..I . ili'. '' lb., 240. 
 " Citizens Ins. Co. v. Hoisvert, 11 Q.L.H. :<77.— 14 H.L. lofi. 
 
 - Mnt. KIre Ins. Co. of Wellington v. I'"rey, .5S.C.R. SI, .tK/jra. 
 '■' Ansley v. Watertown Ins. Co., 14 t^L.U. 1S3. 
 
r?'' 
 
 LIMITATION OR I'RESCRII'TIO.V OF ACTIONS. 
 
 675 
 
 the term of six nioiiths next attt'r tlu- loss or daniage should havo 
 occurred," was an uiireasonal)U' one. as another condition provided 
 that the company shouM have sixty days for payment after com- 
 pletion of proofs of loss.' 
 
 And in another case, on the same condition, it was held, 
 atHrming the decision of Boyd, ('., that this condition must be 
 considered to refer to the date of the destruction by tire, and not 
 to the date at which the cause ot action arose.- 
 
 In another case it was oi^jcctcil that the action was premature, 
 because by a condition ot the polic}- sixty days was given for the 
 payment of a claim, and the action was brought within such 
 period ; but it was held that, as the policy herein was only subject 
 to the statutory conditions by wliidi the period is thirty days, the 
 objection could not be sustained.' 
 
 Where the company having refused payment ot the insurance, 
 an action was commenced to recover the amount after the lapse of 
 more than thirty days from com])letion of the proofs of loss, but 
 less than sixty days thereafter, which by a variation and addition 
 to tlio statutory conditions indorsed on the policy was stipulated 
 for: It was held, that the stipulation that no action should be 
 brought until the expiry of sixty days after proof of loss was not a 
 just or reasonable variation of the statutory conditions. Per 
 Burton, J. A. : — The words of the 17th statutory condition being 
 that the loss should not be payable until thirty days after com- 
 pletion of the proofs of loss, created a privilege in favor of the com- 
 pany, and the statute does not contemplate any further extension, 
 but simply that the company shall be entitled to that delay unless 
 under their charter or by agreement that period is shortened.' 
 
 And the Sujierior Court of Canada, ruling on Stat. Con. 17, 
 have confirmed this and held that this is a privilege accorded to 
 the comjiany, and while tlie time may be further limited by agree- 
 ment, it cannot be extended. Further, that a variation of the con- 
 dition, by inserting a clause in the policy extending the Mme to 
 sixty days, is not a variation by agreement of the parties, nor is 
 suchvaried condition a just or reasoinible one.' 
 
 ' Peoria Sugar Hcf. Co. v. CiiiJiula F. & M. Ins. Co., \-2 A.R. 418, and see .•iu))ru. 
 
 ■i Jl>. 
 
 ■' Iliirliiey < . North British Fire Ins. Co., l;i O.H. ."),sl. 
 
 ^ Smith V. City of London Ins. Co., II O.K. as. H ,\.K. :i28. 
 
 ■'' S. e. sub noni. City of London Fire Ins. Co. v. Smith, lo S.C.IJ. G!). 
 
 •11 
 
; ' "7f ■ 
 
 I I 
 
 676 
 
 INSURANCE LAW <»F CANADA. 
 
 In another c<ase, the j)Iiniitift sued upon sm iusunnicc policy tor 
 ii loss occasioiietl by a tire, wliich took place on the 'JHth March, 
 1886. One of the statutory conditions of the policy provided that 
 every action thereunder should he absolutely barred unless com- 
 menced within one year after the loss occurred. The action was 
 not commenced until the 12th July, 1887. After the plaintiff had 
 put in proof papers in reference to the loss, the defendants fr<mi 
 time to time up to 11th May, 1887, re(picsted the plaintitt to 
 procure and furnish additional particulars concerning the claim, 
 and the claim was completed more than sixty days prior to the 
 commencement of the action, as required by one of the conditions 
 in variation of the statutory conditions which provided that the 
 loss should not be payable until sixty days after the completion 
 of the claim. It was held, per Armour, C. J., that the condiict of 
 the defendants in requesting the plaintiff' to procure and furnish 
 additional particulars and thereby putting him to loss of time, 
 trouble and exi>cnse, was a waiver of and precluded the defen- 
 dants from setting up the statutory condition limiting the time for 
 bringing the action. Per Street, J., that in the absence of any 
 agreement not to insist upon the condition there could be no 
 waiver, uidess the defendants had so acted to estop themselves from 
 taking advantage of the condition ; there was nothing in the con- 
 duct of the defendants equivalent to an assertion on their part that 
 they would not insist upon their rights under the condition ; and 
 they were, therefore, entitled to the l)enefit of it.' 
 
 The maxim contra no)) ralente)ii a/jere non ctirrit pnescriptio does 
 not apply to the one year's prescription stipulated in a policy of 
 insurance. - 
 
 It has been held in Quebec that, where an action was brought 
 on a policy of tire insurance and the defendants pleaded the pres- 
 cription of one year under the jiolicy, an unaccepted tender of 
 money in settlement was not an interruption of such prescription.' 
 
 401. American decisions on limitatioa. — The ([uestion of 
 when limitation under an insurance contract begins to run or under 
 
 1 Cousiiieau V. City of London Fire Ins. (,'o., !■") O.K. :):i!t Q. IM). -Cornisli v. 
 Al)inKton, 4 II. & N. 548, and Tlioiuas v. Brown, 1 Q.15.I). 714 discussed, and see 
 Mdntyri" v. Nationiil Ins. Co., i> .\.H. 'tSO, & .Vtidi'ison v. SiiUKcen Mat. Kire Ins. Co. 
 of Mt. Forest, 18 O.K. ;m. 
 
 -' I'rivy Council, Hrowning & I'rov'I Ins. C"o.. 5 I'. C. App. Ciis. 20;$. 
 
 ■■' Bell V. Hartford F. Ins. Co., 1 L.X. KM). 
 
 I'rescription was ulso sel up in defence in tlic case of I'revost v. Scott. I'nion & 
 Nat, Ins. Co., suprii ^ 371. 
 
LIMITATION OK PRESCRIPTION OF ACTIONS. 
 
 677 
 
 that 
 and 
 
 :)tion. 
 
 Avliat c'irc'umstancess the clause rel'crriug to this matter must be 
 considered waived, and similar i(nostions, have otten l»een ventil- 
 ated in American courts. A ret'eronce to a tew cases will suffice to 
 illustrate the trcuil of judicial opinion on this sultject in the United 
 States.' 
 
 
 'iiioii & 
 
 ' 111 McF.irliiiid V. HiiiUv. Oir. & Kitipl. Ace. Asn., iW Pm-. Hi.p. dSiU), ;tl7, limit- 
 ation iK'Lfiiii to run at tlie lU'iith of iissuivd, mid not !it tlie tiinu iit wliicii the ri^ht of 
 action lU'criicd. 
 
 Wlicre !i policy iiiHiii'iii^' iiu'aii-.st liiibility for injiirips to tliiiil persons provided 
 that, in case tlie iissiir.'d shiiiild III' sued by a person injured, an action hy the assured 
 on llie policy must he hroiiiilit within six months from the "termination" of the 
 action by the injured person, it was held, that the " termination" of such action, in 
 which .judKment for plaintid'tiierein had been aHlrnied on appeal, was on filing of 
 the mandate of the Appellate Court, and not on the payment of the .indmiient.— 
 People V. Amer. Sleam-Hoiler Ins. C'o. In re (rendron Iron Wheel Co., ;)."> N.Y. 
 Suppl. (lSJr», -All : («) X. V. St. Hep. (ISO.")), 721. 
 
 Ill Miirdock v. KraiiUlin Ins. Co. (18S!t), .■« W. Va. UI7, it was held, that limitation 
 as to suit bewail to run at the close of the sixtj- days allowed the company for pay- 
 ment, iKit from the actual loss. 
 
 The same view was taken in Case v. Sun Ins. Co. (IHiK)), S:t Cal. i7:t, where the 
 Su))reme Court of California held, that the twelve niciillis limitation did not begin 
 to run until the loss was payable and the riftht of ac i ion accrued. Further, 'liat if 
 the assured complied with all the reiiuirements of the policy as rapidly as lie was 
 able, and was unable to complete the rc(|uireiiieiit exacted by the insurance company 
 until more than twelve months had elapsed after the fire, his cause of action \va.s 
 not baiTcd by the provisions of the policy, on the ground that the suit was brought 
 fourteen months after the file. 
 
 Hut in Travelers Ins. Co. v. California Ins. Co. (lH!)Oi, 1 X.I), ird, the .Supreme 
 Court of Xortli Dakota has held that, where the policy i>rovi(les that action upon it 
 must be brought within a specilied time after the loss occurs, the limitation runs 
 from the date of the lire, although under other iirovisions of the policy the cause of 
 action does not accrue until some time after the lire. .Vnd there is a similar recent 
 holding in X. Y. (King v. Watertown Ins. Co. (ISMS), 47 Hun. 1). 
 
 In the above case df Travelers Ins. Co. v. Calif. Ins. Co., where the court took a 
 position (•()«//•« that of a ma.jority of the adjudications in the riiited States, the 
 (juestion was fully ilisciissed. The court said, //i^cc (»///»;'• Tho.se cases rest upon 
 the alleged necessity of harnioni/ing conllicting provisions. The policies jirovide 
 that the loss should not be p.iyable until a siiecilled number of days after the jiroofs 
 of loss. There is no conllict between such a provision and another part of the same 
 policy reiiuiring the action to be brought in twelve months or any other time, after 
 loss shall have occurred, provided, of course, a reasonable time is left after the cause 
 of action has become perfect, in which l.^ sue. The error which appears to this court to 
 lie at the foundation of these decisions is the assumption that the insurance company 
 intended to give the insured the full time spi-cillcd, during every nioinent of which 
 he might institute his action. What right has any tribunal to tliid hidden somewhere 
 in the contract a privilege to have the full time to sue after the cause of action has 
 accrued, when the policy gives it only from the time the loss occurs ? There are two 
 distinct provisions -one that the insureil sliall not sue liel'ore a certain time, and 
 another that he shall not sue after a certain time. These do noi clash. They merely 
 necessitate the construction that the intention was to give the insured such period 
 in which to maintain his action after he could sue as would be left after deducting 
 from the time limited the time which must elapse before the right to sue could 
 accrue. But we (liid in OK-se cases this extraordinary reasoning: they assert that 
 
 ' r 
 
I lii 
 I 
 
 678 
 
 INSllRANCK LAW OF CANAHA. 
 
 tills iloctrine will ol'icii kill the acliiiii iH-forr it ('(mid liiivc lifi-. 'riii.' hiihwci- is slioil 
 uikI simple ; evcrv liiiiitalioii in ii cDiitnicI is void \vlii>li dues nut leiixe the pl:iiiilill' 
 a reasonahle rime In which lo sue after his rlKlit to sue lias heeiiine perfect. When 
 an insurance company has declared that a suit must ho lirouKhl within fori v days 
 after loss has occurred and that no action shall he nuiinlained until thirty days after 
 proof of loss, the duly of the court is, not lo interpiilale into the contract a provision 
 (hat the liinilalion runs from the dale the cause of acl ion a<'crMes. in place of (Uie 
 
 expuuf^ccl liy the same pi ess, lo wit I lie provision thai the lime runs from the 
 
 lime the loss occuis, which is tlie dale of the lire, l)ul the court should invoke 
 aniiinst. the company tlic rule that a rij^lil of aclion shall mil in ell'ecl he destrnyecl 
 hy a limilal ion which li-aves the plain I ill' an unreasonaJily short lime to sue after his 
 cause of action has aecrui'd and declare the limilaticm clause void. If other pro- 
 visions of I he jiolicy make it appear that in every I'ase a reasonahle I inu' will not hi' 
 left after the ri^lil to sue has licconu- perfect, the limilalion is void. If acliuji in 
 Kood failli and wilh all proper diligence, it transpires in any parliinlar case I hat 
 other provisions of I he p'ili<V I o he complied wilh as condil ions precedent to a li.uhl 
 of act ion could not lie pcrforuieil in lime to leave a I'easriualili' lime thereafter in 
 wliich lo sm-, I he limitation is inoperat ive in such a case ; ami if the company has 
 induced the insured to helieve thai the loss will he paid, or that the limilalion will 
 not he insisted on, until it is loo late lo s\ie, the limitation is wiiived. 'rims, Ihi' 
 insured is fully protected )iy the applieiilioii of known and csialilished principles. 
 TheconlracI is construed as it is wrilfi'ii, and I he t ime when llie limilalion licuins 
 to run, if at all. is llxcd ;iml not unccrlain. In .lohusun v. Ins. ('o..!M 111. lij. ihe 
 limitation provision reipiired I he act i(m lo lie liron)^hl within twelve monlhs aflcr 
 the " loss occurri'd, " and it w as ileclareil I hat no aclion should lie comnu'iiced until 
 sixty days after proof of loss. Said the couii : "The two clauses, consideicd 
 lonetlier, olivionsly provide that I lu' iump.iny shall llav(^ sixty days within which lo 
 make payment after not ice and proof ot loss, hut in no event should a snil oi- acl ion 
 he comuu'iiced jifler the (expiration of I wi Ive moni lis from the dali' (if l he lire pro 
 due! 111.': the loss. Any other 111 can ill!.; .it I ached lo the lauRuane, it seems lo iis, wdiild 
 lie st rained, iinreasonalile, and in direi-t viol.il ion of I lii> plain iiileiil ion of I he piil ies 
 cleaily e\pri'ssed." To s.iiiie cU'ect arc Ins. I'o. v. U'l'lls, (\'a.) '.i .S. I'",. |{ep. Hl'.l ; 
 Chamliers V. Ins. Co., ."il Conn. 17. ('handler v. Ins. Co., Jl Minn. ,s."i, npp.iri'iil ly 
 suppoiis this view ; and I his applies lo a second aclion where the lirst has hien 
 dismissed as premalurc i Hocking v. Howard Ins. Co. (ISSih. i:ln I'a, St. 17(1.) 
 
 In SiiKIJs \ . Tniv. Ins. Co. ( Isssi, 71 Te\. ."i7!l, it was declared thai I he cxceplions 
 in I he slaliitcs of limilal ions in favor of minors do not aU'ecl the aurcemeiils in tin' 
 policy and minor licncllciarics, liy sui-h ji clause, are also lioiind to liriiiL'; an acl ion 
 williiu the time aurecil upon in Hie policy. 
 
 In Cooper v. C. S. Mill, lien, .Ass. Hs;):;), |:!J \.V.:;:t|, Hie Court of .Appeals of 
 New ^'ork has cons trued Hie limilal ion in .iccidcnl policies of suits upon Hiem, I hat 
 Ihey he coiiinienced wilhin "oliv year from I he I ime of I he alle-..;i'd Mccidcnlal ili.inry" 
 
 as follows ; " It w ill he oliserved I hat provisions a le niailc in Hn rl illcalc I'oi- I wo 
 
 dill'erent persons w ho, upon Hie happen inn of Hie events spec! lied, may have a riv!:hl 
 of .act ion anaiiist I he ass<icial ion. One provision is in favor of I he insured, who may 
 recover diirin.n' his lifclime I lie amonnls provideil tor his disahilily resnllin^ from 
 Hie acciileiilal injury received. The other is lo his wife, which is for Hi(> in.jiirics 
 w liicli she Millers hy reason of his deal h resull inn from such accideiil . The acciilenl 
 received hy Ihe insured <lid iiol in.jnie Hie wife or (.(ive her a rinlil of .-iclion until 
 deal h ensued. ,So far .is she is com'crned. Hie iullicHon of I hi' wiiiind is liiil Hie 
 lieniniiiii'j: and I he dealh is HuM'omplel ion of I he injury. Ileisull miisl he " loiii- 
 meiiced w il hill one year from Hie lime of Hie alleui'd accideiiliil in.jiiiy ; " in oilier 
 words, within oiM' year from the lime of Hie injury to her, uliidi was Hie dcalli of 
 her hnsliaiid ;ls the result of Ihe ai'ciilenl. Hut I his decision, HioiiKh siipporled liy 
 pre lent, seems lo sirelcli the const ru el ion loo far .i^iMlnsI I he insurer. 
 
 I.imilal ion was held waived in Ins, Co, v. Ilrodle. (IHSP), .■"._' .\ik. II, Ihe com 
 
! ■ ^5 i 
 
 IMITATION Dll I'RKSCUIl'TION OF ACTIONS. 
 
 (179 
 
 llial 
 ijm>" 
 
 I Wl) 
 
 ri^lil 
 
 may 
 
 froiii 
 
 jiii'ics 
 
 •iili'iil 
 
 mil 11 
 
 I III' 
 
 riilll- 
 ilhrr 
 III of 
 llV 
 
 paiiy's ajji'iil liii\ iii^; Itiil tin- iissuri'il In liciii-vc I liiil Ihe loss winilil lie |ialil h illioul .i 
 Miit ; anil in Hor.'-I v. ('il> of lioniloii F. Ins. Co. (ISH!)), ~'A Tex. (17, llii' coiiipaiiy 
 liaviiiK iccDKiiii'.cil lialillil.y l>y rciiuliin^t no luljiisl mciil or fnrllicr proofH of loss imtl 
 )ironilsin^ lo puy on ileteriniiiiitioii of Ki^i'ni^liiix'Kl |i>'o<'c('ilin<;s liy rri'ililors of 
 asrtured. 
 
 Unl In Kinvc V. Watciiown I'Mro Ins. Co. ilSSS), IT linn. I, pjiyincnl liy tlic com 
 puny lo a niortnfiK<'i' was held not lo he a wiiivi-r of tlii! limilal ion rlaiisr. 
 
 .\nil in Law v. New KiiKlanil Mnl. Ace. Ass. (I«f.!(. !M .Miili. l'iMI, ulicri' llic 
 insni-cr iiiitilli'il I In' liolilcrof Hit' citI i Ileal r live monllis I pi' fore I lir ex pi nil inn of I ll(■ 
 y<'ar allowi'd for hiin^iiip; snil , llial il ilcrlini'il to pay Mil' •laim mill that " il wonlil 
 lie lii'fliT lo let till' conrls di'i'iili' his maltrr," it was Iwld that a suit. Iironnlil aftrr 
 till' t'xpiral ion of I hi' year was liroiinlit Inn hit f. .Src also Shackcll r/ii/. v. l'i'opli''s 
 .Milt. Ili'ii. .Sim.. l'.'> Ins. I,. .1, (I.Sillii, |,-,:t. 
 
 Till' llliiinis Siipri'iiic Coiiil. in a wrll coiiHldi'icd r.i.sc, .Mli'inannia I''. Iiis. Co. v. 
 I't'iU (ISilii) i;t.'! III. liiio. has allirmcd tlic rules of law vfiven liy the <'oiiil on the trial 
 of the ease, upon I he si 1 1) j eel of eslnppel In elaim a liar to I he aet ion hy reaseii of t he 
 limitat ion in t he policy as lo I he lime of liiiiiLcinK suit I hereon. In their opinion 
 they well e\ press I he slate of I he law upon aiithnrily in t lie follnw in^; wdiils: '"I'lie 
 main prnpnsil inns which the insurer snnj;lil . williniil snecC'S, In ha\e i'lnlioilled In 
 I he inst riiel ions wore t hat . to show a w aiver hv t he insurer of l he liinit;tl Imi clause 
 inlliepolicy.it was ineiiinlienl upon t he assured to iirnve that their delay in lirin;; 
 iiiK suit Uiisal I he special iiislaiice and iccniesl of the insiirei-: and also, tlial such 
 proof conid only lie made hy posit ive e\ ideiicc, and cniilil mil he inferred. 'I'liat such 
 is nnl I he law is clearly eslahlished liy I he anthorilles. I'hiis, in j'enria I'. \ M. Ins. 
 Co. V. W'hitehill, I'.'i 111. Hill, « here l he i|nes|inn arose in this sl.ile hir the llrsi time, 
 t he rule was laid down as follow s ; "When' an insurance cniiipany sli.ill liy fraud 
 nr liy hnlilinij, (iiii reasnnahlc hopes of an adjiisi nieiit , del er a party assured. heliiK 
 luiiler siich a cnmlit ion In sue, frnin ennimenciiiK his suit, hehoiieslly conllilin); in 
 the pretences and promises of the insurer, Ihe cnndilinn wiuild he no liar." 
 
 I'his statement, nf the l.'.w has lieeii cited with apprnval in Viirinns siilisei|Ui'nl 
 eases : I''. iV .\l . Ins. Cn. v. t^hvsnul. .'i III. Ill ; Derrick v. I„imar Ins. c,,., 71 |||. jni ; 
 llnme Ins. Co. v. .Meyer. '.IH III. '_'7I. 'I'he s.ime duct ri lie nl it a ins In nl her slates. In 
 Martin \. State Ins. Cn., II \. .1. I,. Is.",, it is said : "If the dcliiy lo liriii); suit is .1 
 result < n will eh t he company maiiil\ cniil ri lulled liy hnldini;' nut hopes of ,111 amicalih* 
 adjiisI nient . I he company caiinnf lie perniil led I o take ad\ ania;;e of the ilela\ under 
 the limitation eliinse of Ihe policy." In Mickey \. Hurling nii Ins. Co., It') Iowa 171, 
 an insi riicI inn was j,;iveii In Ihe Jury hnldini; Ih.il.if the pi. liiil III' delayed hriiiKinn 
 siiil .iflertlic expiratinlinf six months in cnnseipicncc of indiicemciils held nut liy 
 the dele nd, -I Ill's onicer, cansinu him In licliev c I hal Ihe mss wniild he paid nr adjusted 
 williniil suit. I his wniild npcr.ite to remove t he li.ir created liy I he cnmlit inn n| 1 he 
 pnlicy reipiiriiiK an act inn Iherenn In lie hrnu^hl within six nmnl.hs after I he loss. 
 'I'lic court, in suslainim; t his insi rilcl ion, said: " A cmirsc nt ennduci nnllie part 
 nf defendant, nr icprescnlal ions nf ilsol'lcers, which would ijive le.isniiahle nioiind 
 npnii which plaint ill' did in fiicl liase the hclicf that his claim wmilil lie selllcd, 
 would sinp the 'lefendanl losri up I he limitat inn pnn ideil li\ llicpnlicy. Ii wniild 
 lie cm 1 1 rary In Jiisl ice fni' dcfrndanl In hold nut I he hope of an amicahle adjust iiient 
 of I h(^ Inss. and I hen Iw pcrioil 1 cd In jilcid this \ cry ilel,'i\ , \\ liich was caused hy its 
 nun rcprcsenlal ive. as a defence In Ihe ;ulinn when lirnimht." .See, alsn : SI. Paul 
 I'. \ M. Ins. Wl. V. Mctire;j.(ir. li:; I'ex. M'.ltl ; Uipley v. Kin.i Ins. {\,.. ■»] jt.irli. ."iVJ ; 
 llarnnni \. .\ler, I', liis. Cii.lIT \. 'S'. IS,S ; .Md'arland \. I'e.ilindv liis.Cn.. li W, \a 
 I:!."); I' la Ins. Cn, v. Mall, \1 ,Mich. lilC. 
 
 I''nr a disciissinn nf I he limitallon clause in I he " Michiuan Slaiid.ird l''iii' I'niicy, ' 
 see Steele v. (lernian Ins. Co. of l''ri'epni'l (l,si)i.'i, ii;| Mhh. s|. 
 
 In Metrop, Ace. Ass, v, l'"rnilaiiil. •,!.'"i Ins I,. .1. .■"itl.-HlSllfh, \\ here I he lirnetlciary 
 was lutiinranl of the hy law rei|iiirinu' suit mi ihe policy In lie liiniinlil williin thirty 
 tiays after a refus.il nf a cnnip.iiiv I n pa> ii chiiui. and I he nlllcer refused a reipiesl for 
 
 i 
 
Hi It. I 
 
 .It! 
 
 680 
 
 INSURANCE LAW OP CANADA. 
 
 i 
 
 405. Limitation as to place of bringing: suit. — In the case 
 of S locum V. Westeni Ass. Co.,' it appeared that there was a provi- 
 sion in a policy of marine insurance, issued by a Canadian com- 
 pany, that " if the assured procteed at law or equity, b}' suit or 
 action, to recover the whole or any part of the sum assured by this 
 policy, such suit or action shall he brought and prosecuted in Her 
 Majesty's Court in the city of Toronto, and not elsewliere." A 
 total loss havinpr occurred, a libel in admiralty was instituted by 
 the assured against the company in the Federal Court for the 
 Southern District of New York, and a morion was made to dismiss 
 the libel upon the ground that this court, if not without jurisdic- 
 tion of the cause, should, as a matter of discretion, (U>cline to 
 entertain it in the face of the above stipulation. The motion was 
 denied, the stipulation being held invalid. Brown, J., said : — 
 "The authorities, I think, sustain the general doctrine that a stipu- 
 lation inserted in a contract, limiting the remedy for a breach of 
 the contract to a particular forum, is not a valid stipulation. 
 Several cases bave held that such a stii»ulation, distinguishing 
 between the different coui'ts of the same county or state, will not 
 be recognized or regarded as valid there. I do not see why any 
 greater effect should be given to it abroad, or as between the 
 courts of the country of the contract and any appropriate foreign 
 tribunal. Steam Shipping Co. v. Lehman, 8!) Fed. 1104 ; Scott v. 
 Avery, 5 III. Cas. S11 : ISTute v. Ins. Co., 6 Grey 174; Amesbury 
 v. Inl Co., t! drey, 596 : N^evins v. lus. Co., 25 N. R. 22 : Bartlett 
 V. Ins. Co., 46 X. E. 500 ; [us. Co. v. Routledge, 7 Ind. 25 ; Reichard 
 v. Ins. Ct)., .51 M. O. 51.S. A court of admiralty may doubtless, in 
 
 ;i copy nf till' liylnwM, iiiid in reply to a <nu'slioii its lo the Unit' in wlili'li Muil niinlit 
 he Iji-on^til iinsivfri'd "thrct' niontlis" (llic niiixiinuni limit in iiny casi-), the liniitii- 
 tion iiM to I he thirty days was tlicrcby wiiivod. ."ill III. App, Tc'^, iilliniii'd. 
 
 And in Mul. lU's. Kiind l.ifo Ass. v. ToltiiTt, Xi S. W. l{ep. (tsiltl), 2i)r>. wiu'rc the 
 petition iivcrn'd ipiilihliiiK ovor iilloRi'd dclVcts in proofs of death, IciidiiiK plainlitV 
 to iindi'rstaiid tliiU thf null ter would he iid.jusfcd when sucli dcfffts wrrc (■iircd, 
 with a franduli'Mt iiiti'iit to allow suoli year to cxpiro, tliu fvideiu'f showed that de- 
 feiidunl's olijeetions to the proofs of death furnished were siieli that it would he hani 
 to allrilintc to them any olher niolive than the fraudulenl purpose of alloA irj^ such 
 yi-ar to expire ; that in addition to repealed lellers written hy defundant deinaodiiiL!: 
 purely formal channeH in the proofs of death, without intiuialinji- dissatisfaetion 
 witli thenierils of the claiiu, defendant's vlee-|)ro.sidcnt stated to plaiiitilV's anent 
 that plaintlll'liad llie lilanks necessary lo he tilled up, and if they were iiitelliitently 
 filleil in he had no douht that the matter eotild he arranged. The court decided, 
 that the evidence was MilUcleiil to estalilisli a walvi'r of the condition of the limi- 
 tation. 
 
 ' VI I'Vcl. I!ep. L'llodSIHh. 
 
LIMITATION OK I'RESCRIPTION OF ACTIONS. 
 
 681 
 
 its discretion, decline to entertain jurisdiction in maritime cases 
 arising abroad, wliere none of the parties are resident here. Suits 
 for the wages of foreign seamen involving detention of the ship, 
 and brought here without justitiable reason, are declined. But. 
 whore the controversies are ciniimimis Juris, special reasons should 
 appear for declining jurisdiction. . . . The libellants are all 
 citizens of this country ; two of tlieni reside in this state, and one 
 ill this district. No special circumstances are shown as respects 
 the [larticular matter in litigation, or the convenience of witnesses, 
 why the determination of the libellants' rights should be had in 
 Toronto rather than in New York. Though the policy was for- 
 mally and technically issued at Toronto, the whole business was 
 with citizens of the United States, through brokers belonging here, 
 u[)on freight upon a vessel of the United States, and in respect to a 
 voyage between South American ports. These circumstances (h) 
 not present, so flir as I perceive, any equitable grounds for refus- 
 ing, as a matter of discretion, to entertain a suit brought lawfully 
 here to enforce an apparently lawful demand. On the contrary, 
 this country, where the libellants reside and where the ])usiness 
 was iti effect procured and its profits realized, seems to me to be 
 the more approi)riate forum. 
 
 •fi 
 
 1:1 
 
hi 
 
 k 
 
 CHAPTER XXIII. 
 
 FOUKIGN COMPANIKS IN CANADA. 
 
 KM!, (i i: N i: rf A I. hkmmiks on ■cm-; 
 
 STATI'S Ol' KOIiKKiN (( )M I'AM l:s. 
 
 407. WiiiiN co.siUArT hy ai;i:nt ok 
 
 KOUKKiN COMl'ANV IS ri.TltA VIKFIS. 
 ■tOS. .IrmsDICl'lON OF CANADIAN 
 
 conn's i!i:sTRiiTi;i) to oiii.kiations 
 
 IN TIIK DOMINION. 
 
 ■I0!». Pavmknt ok ri{i:Mii".Ms \\iii;v 
 
 COMl'ANV HAS NO OKKICIO IN CANADA. 
 
 ■110. ASSKSS.MKNT I'PO.N NKT PHOKITS 
 OK ACKNT. 
 
 111. DKI'OSII' Wnil HANK— lAII.l-UE 
 OF HANK AI.I.KCKI) I'HKHC IC ATI VK OK 
 CHOWN. 
 
 412. Claim foh hiodatk hy oni-: ok 
 
 TWO .lOINT-INSl'KKKS. 
 
 4i:j. Xon-i'aymi:nt ok noik civkn 
 
 KOIt HEINSritANCK IMiKMIVMS — KK- 
 DHKSS OF HMINSl'ltlNli COMPANY. 
 
 414. DlSTHIIirilON OK DKl'OSITON IlK- 
 IIAI.F OK CANADIAN POLICY IIOLDL'IIS, 
 ALTIIOPtlH \VINI)IN(i-rP PHOCKKDINCS 
 Alil-: PK;NDIN(i IN KNULAND. 
 
 ll."). SK( THITY FOH COSTS. 
 
 41(i. ATTACIIMKNI' in (iAKNISlIMKNT 
 
 — paymi;nt into (ouht. 
 
 117. l'"oHi:i(lN INSHHA.VlK COMPANILS 
 IN TIIK rNITKD SIAfLS. 
 
 106. General remarks on the status of foreig:n companies. 
 
 There is no doiilit that nnder iiitoniutional law a corporation 
 duly created according to the laws of one state may sue and be 
 sued in its corporate name in the courts of other states.' 
 
 It has been saiil that, as no state can validly authorize a body 
 corporate to transact business out oi its own territory, no corpor- 
 ation can sue in a foreign country on a contract entered into there. - 
 
 But, if carefully examined, tliese cases only decide what is un- 
 (|uestionably true, viz., that a I'orporation formed to carry on a 
 particular business in one country exceeds its powers it' it carries 
 on a similar business out of that t'ountry.' 
 
 The true (piestion is not whether one state can legally grant 
 powers ol" conti'acting, etc., in another state. l)iit to what extent 
 does one state recognize tbe acts ot' another. 'Phe right of a cor- 
 poration to sue in a foreign country, as well as its right to contract 
 in a foreign country, are both based not on the law ot the state 
 
 I Till- Diilcli West ImUa Co. v. Moses. 1 Sir. (ill. Liiidley on tlif Law of Cdiii. 
 panie.'~, ."illi oil. p. iKI!), anil C. I'. 7il. 
 
 -' Hank of Mdiilival v. Uelliuni', I I'C Q.M. :tll. (icni'si'f .Mill. Ins, Co. v. 
 Wcstnian. S U,C. Q.IJ. 1«7. - Union Huhlu'v Co. v. Ilihlianl. (I I' CI" I' 77, 
 
 •■' IJiiilJi'V, ."itli I'll., |). 010, noli' (k). 
 
^i 
 
 
 FOREICN COMl'ANIKS IN CANADA. 
 
 (588 
 
 \ 1 -i 
 
 creating the body corporate, but on the extent to which the foreign 
 country chooses to recognize that law. This rule of law exists by 
 the comity among states.' 
 
 Foreign corporations must satisfy the rei|uircnients of the 
 Insurance Act of Canada and the provincial legislative enactments 
 before they are entitled to transact the business of insurance in the 
 provinces of the Dominion. - 
 
 407. When contract by agent of foreign company is ultra 
 vires. — A. contract of insurance alleged to have been made in 
 Montreal by an agent of an insurance company incorporated l)y 
 the laws of the State of N'ew York, whose charter and by-laws 
 provided that it could only contract in New York, and l)v the 
 president and vice-president, was held in Quebec wholly null and 
 void.' 
 
 408. Jurisdiction of Canadian courts restricted to obli- 
 gations in the Dominion. — Foreign insurance comiianics doing 
 business in the city of Montreal vnu be sued before the courts of 
 the Dominion of Canada for such obligations or responsibilities 
 oidy as they have assumed in Canada.' 
 
 409. Payment of premiums when company has no ofdce in 
 Canada — Where the question was whether the amount of insur- 
 ance claimed on the life of deceased was forfeited by the non- 
 payment of the [iremium. the evidence showed that the company, 
 after the 1st May, 18 — , had ceased to do business in Quebec and to 
 have an agent there to whom payment could be madi'. and the 
 plaintiff urged that it was not his duty to go to Kngland, where 
 
 ' Moniwytz, Law ol' I'l'iviUc ("orpuriUions, ij IHiii. 
 
 Cliii'f .hist ice Tiuii-y suid in An^nslii v. Kailc, (i:i l\'t. •"ilil, ."iHiil : -'" Wf think it 
 well .seltli'd tliiif by till' law of ctiniity iunon.n' n:il ions ,i coi'iKii'al ion ci'inUi'cI by one 
 sDVi'ffiu'iity is in'iMnilltMl to lutikf I'ontfacts in iindtbcf and sue in its i'iiurl>. iuid tlint 
 tlic samu law of comity jircvails amon« the sevei-al so\ cieifiiities of the I'niiin." 
 
 And .liistice l[aflan said in rnion v. YonnI (Ull I'.S :rili) : "In haiinonv with 
 the general law of comity obtaining' aniiniji' the stales coniposinti; the I'lniHi. ilie 
 presmnptioli should l)i' indnlned that the corporation of one stale, not f(M'bi(ldcn by 
 the law of iis beiiiK. may exereise within any other state the .Lienei'al powers con- 
 fei'i-ed by its own ehai'ter, unless it is pi'ohibiled from so doiiiK eilher in the direct 
 einiet ments of the liilter stale or by lis pnblie policy to be deduced from the ;j:enefal 
 course of lejiislal ion or from I he settled adjudications of its hijiliest coiirls. 
 
 -'See Old. Fiis. .Vcl. |Si)7. - |{ S Q.. ISSS. — 1{ .S. .M., ISill. 
 
 ■' Wediiath il iil. v. Sun .Miit. Ins. Co., 11 \..C..] . !I0. 
 
 I Uieholien \: Onl. Nav. Co. v. I'leenlx Ins. Co, of Hrooklyn. .M I, I{. 2 S.C. I!I2, 
 and (» I, N. 2111, ISSfi. 
 
 i'll 
 
I^p { 
 
 1- R'; 
 
 5 .:;■ :'' ■■ 
 
 if' '_ 
 
 ♦i84 
 
 INSURANCE LAW OF CANADA. 
 
 the headquarters were, to pay the amount. The court decided 
 that, under tlie circumstances, tlie contention of the plaintitf should 
 he maintained and judgment must go against deten(Uints.' 
 
 110. Assessment upon net'profits of agent. — By section 1'2tJ 
 of the St. John City Assessment Law, 1S89, 52 V., c. 27, the agent 
 or maiuvger of any life insurance company doing husiness out of the 
 province, is liahle to be assessed upon the net profits made by him 
 as such agent or manager from premiums received on all insuratices 
 eftected l)y him : and the better to enable the assessors to rate such 
 comi)any, the agent or manager is re([uired to furnish at a Certain 
 time in each year a statement under oath, in a prescrilted form, 
 setting forth the gross income and particulars of the losses ami 
 deductions claimed therefrom, and showing the ratable net orofits 
 for the i)recedin<i: year. 
 
 JJy the form prescribed, the deductions to be made from thi^ 
 gross income consist of re-in.su ranee, rebate, etc., actually paid, and 
 amounts paid on matured claims on policies issued l)y sucli agent 
 or manager. In the form presented by the agent of a life insur- 
 ance company in St. John, N.B., there was no amount entered for 
 deductions of the latter class, hut instead thereof, an item was 
 inserted of " 75 per cent, of premiums deposited witli government 
 for protection of policy holders,*' which was an addition to the 
 form. The statement showed that the deductions exceeded the 
 gross income, leaving no net profits to be taxed. The .assessors, on 
 receiving this statement, disregarded the result shown thereby 
 and assessed the agent on net [irotits for the year of $(3:500. A 
 rule nisi for a certiorari to quash the assessment was obtained, in 
 support of which it was shown by affidavit that the amount 
 required to be deposited with the Dominion Government by the 
 company assessed was about 75 per cent of the premiums received, 
 and that the amount of such deposits from time to time returned 
 to the company was applied for the ''onctit of policy holders and 
 formed no i)art of the income profits of the comiiany. Tlie 
 Supreme Court of Xew Brunswick dischai'ged the rule and refused 
 to quash the assessment on the grounds that the government 
 deposit was part of the iiicome of the company held in reserve for 
 certain purposes and formeil no part of the expenditure, and that 
 the agent had no right to strike out certain reqinrements of the 
 
 Doi'ion V. I'lisilivc l,ifi> Ass. (" 
 
 I L.N. -JIW. 
 
FOREIGN COMPANIES IN CANADA. 
 
 685 
 
 form prescribed and substitute diflerent statements of his own. It 
 was held, reversing the decision of the court below, Fournier and 
 Taschereau, JeF., dissenting, that the agent was justified in depart- 
 ing from tlie form to sliow the real state of the business of the 
 company, and the deposit was properly classed with the deductions, 
 and the assessors liad no right to disregard the statement and 
 arbitrarily assess the company as they did.' 
 
 111. Deposit with bank-Failure of bank—AlIegred prero- 
 gative of crown. — An insurance company, in order to deposit 
 !3i50,000 with the Minister of Finance and receive a license to do 
 business in Canada according to the provisions of the Insurance 
 Act (li. 8. C, c. 124), deposited the money in a bank and for- 
 warded the deposit receipt to the Minister. The money in the 
 bank drew interest which, by arrangement, was received by the 
 company. The bank having failed, the government claimed pay- 
 ment in full of this monej' as money deposited by the Crown, 
 
 rt was held, reversing the judgment of the court below, Strong, 
 J., dissenting, that it was not the money of the Crown, but held by 
 the Finance Minister in trust for the company ; it was not, there- 
 fore, subject to the i)rer(tgative of payment in full in priority to 
 other creditors.- 
 
 412. Claim for rebate by one of two joint-insurers. — J. M. 
 
 and F. M., liis wife, were jointly insured in the defendant's com- 
 pany, whose deposit was being administered under R. S. 0. (1877), 
 c. 160, ss. -21, 23. On 4th February, J. M., without the assent of 
 F. M., signed and sent to the receiver a claim for rel)ate as em- 
 powered under that Act. No acknowledgment of the receipt of 
 this claim was given by the receiver, who, on 27th February, sent 
 J. M. and the other policy holder a circular notifying them of an 
 agreement for re-insurance, and that if they objected thereto and 
 desired to claim for rebate, they were to do so before loth March. 
 On 24th February the property was burnt, and J. M. forthwith 
 claimed for the wliole loss. It was held, that neither J. M. nor F. 
 M. were liound by the former's claim for rebate. That it was not 
 a release, luit an invalid attempt by one to exercise a joint statutory 
 power ; or else an attempt to make a new contract which was not 
 
 ' Siipreiiu' Court of C'aiiiida, PtU'i's v. City of St. John, 21 S. C. H. 1174. 
 - Supreme Court of Ciinmla, Li.iuidiitors of tiie Miiritiiiie Biinii v. The Queen, 27 
 S.C.H. (in-. 
 
686 
 
 INSURANCE LAW OF CANADA. 
 
 authorized by one of the parties, and was not accepted by the 
 receiver before the loss occurred. Grunting that a release by one 
 Joint tenant would extinguish the right of both, it does not follow 
 that entering into a new agreement by one will prejudice the right 
 of the other.' 
 
 413. Non-payment of note given for reinsurance premiums 
 -Redress of re-insuring company. — Pending udniinist ration of 
 
 the deposit of the C Insurance Company under R. S. O. (1877), c. 
 160, ss. 21, 22, and after the completion of the receiver's schedule 
 prescribed by the Act, a re-insurance was ett'ected with the A. 
 Insurance Company of all the U. company's risks, in consideration 
 of which the U. company gave the A. company its note. This 
 note not being paid at maturity, the A. company sought to bo 
 placed on tiie dividend sheet of the I', comiiany for dividends 
 accrued or to accrue. It was held, that it was entitled to the relief 
 asked, for properly viewed the subject of the claim existed before 
 the schedule, though in a difterent shape, since by the arrangement 
 with the A. company, made with the assent of persons entitled to 
 rebates, the liability of the V. com[»any in respect to rebates was 
 greatly reduced, aud to that extent the A. cotn|)atiy sliould be 
 taken to be subrogated to the [losition of tlie policy-holders of the 
 U. company. - 
 
 414. Distribution of deposit on behalf of Canadian policy- 
 holders, although winding-up proceedings are pending in Eng- 
 land. — Canailian policy holders petitioned for distribution of the 
 deposit made by the com[iuny, a toreign corporation, with the 
 Minister of Finance under -W Vict., c. 48 (Dom.) and -M Vict., c. 
 !' (Dom.), the company being insolvent. , It was deciih'd that they 
 were entitled to the relief asked, notwithstanding tiiat proceedings 
 to wind up the company were pending before the English courts. 
 The above Acts are not ullni rires of the Dominion Parliament. 
 For any balance of their claims not covered by the deposit, 
 Camidian policy holders would be entitled to rank upon the general 
 assets of the company.''' 
 
 The detinition of "Canadian policy" and "policies in Canada" 
 in 34 Vict., c 9, s. 1 (Dom.), is not to be interpreted to mean that 
 
 • Cliirke V. Union I'"ire Ins. Co. -Mcl'lu'c's Claim, (i O. |{. (ilCi. 
 - Clarke v. Union I'ire Ins. Co.— Claim of the Af^iiouUiiral Vivv Ins. Co. of Watei 
 town, New York, (> O.R. (i40. 
 
 ■' Re Uritoii .Medical and CJenend Life Ass'n, 12 O.H 111, and sec iiil'ni i US. 
 
i^TTrfii 
 
 FOREIGN COMPANIES IN CANADA. 
 
 687 
 
 the deposit is only for the security of policy holders whose policies 
 were is.siied after the deposit was made and license to transact 
 business in Canada obtained.' 
 
 415. Security for costs. — In the case of Sta)id<ir(l Life Ass. 
 Co. V. 31('Sh(ine,- a motion was made for security for costs. The 
 court granted the motion, holding that the plaintiff' is a foreign 
 corporation. The Quebec Statute, 1888, chapter 120, which had 
 I)een cited as constituting the plaintiff a corporation in this 
 province, declared formally in section 0, that nothing in the Act 
 siiould be construed ov taken to incorporate the company. 
 
 116- Attachment in garnishment— Payment into court. — In 
 
 a ca.se ' where the amount of a life insurance policy was seized by 
 attachment in garnishment in the hands of the company for a debt 
 due by the deceased, and the com[»any ol)jecte(l that the policy was 
 payal)lc in England, it was Lv^'ld, that upon such seizure the com- 
 pany could be comiiclled to pay the amount into court here, and 
 that even wliere the insurance was effected at another agency 
 beyond the jurisdiction of the court. 
 
 417. Foreign Ins. Cos. in the United States. — The shifn.s of 
 
 foreign corporations doing business in the following states 
 of the Union has l)een discus.sed in recent cases, viz., Michi- 
 gan,' Oregon,' >[ew York," Arkansas." Indiana.'" Iowa,' Ohio," 
 
 I R« Hritoii Mcilic.il and (ioiicral Lift; Ahs'u, 12 O. |{. IH. 
 
 -' Suporior Court. .Mouti'i'fil, lH Oct., 1S!»7 ; not yet i-i'i)ortL'(l. 
 
 ' ChaiHMiin V. Clarke k riiity I-itV Ins. Ass., :i L.C.1 . 15!). 
 
 * IniiH-rial Life Ins. Co. v. llaniMtzor (ISiKi), !).i .Mich. 5W,— Hail lord l-'irc Ins. Co. 
 V. Hayinond (ISSS), 70 .Midi. IS."), .")(ll,s.c. :iS N.W. I{i'p. 171. -IVoplf v. .Statf Coni'r of 
 Insuranui' (1S72), ii .Midi. Miil. -Kniployi-rs Liability .Vss. C<i. v. Coui'r of Ins. (l.S><7)i 
 til .Midi. (ill. 
 
 •■ lladieniy v. [.cary (lS8r>», 1:2 Or. 1(1. 
 
 'iO'Xeill V. .Mass. Hen. (IHIL'I, (i;{ Hun. :ii)2. -(iri.-sa v. ilo. ilSlMi. 1.1 NY. Siippl. 
 71. Latllin v. TravdiTs Ins. Co. d.SiKI), 12 X. Y. 71:!.— Kiiip. Liah. .Vss. Corp. v. Knip. 
 Liab. Ins. Co. (IS'.tl), Ki N. Y. .Siipp't. :W7.— People v. C.ibbcrt (1S,S7), || i(,ni. ."(22. 
 Lancasli. Ins. Co. v. .Maxwell (Issil), .5 N. Y. Suppl. M'.Hl. -People v. .lusticcs, etc (l.s,S!)), 
 11 N.Y. Suppt. 77;!. 
 
 " \m. Cas'y. Co. v. Lea (lSil2). oli .Vrk. .").)». -I{y. Co. v. Fire .Vss'n ( l.sitl ), .Y", Ark. Ki:;- 
 —Marine Ins. Co. v. St. Louis, 1. .M. & ^. Uy. Co. (l;-i!l!)>, 11 Ved. Hep. il:!. and see l;t!» 
 W.S. 22.). 
 
 "Diamond i'lale (ilass. Co. v. .Minn. .Mm. I''ire Ins. Co (|Sil2i. .")."> Fed. Hep. 27— 
 Wiesllinj; v. Wartliin (ISilO), 1 Inil. .\pp. 217, ill/l•ll.—Sl;^\^^ Ins. (,'o. of N,.V d.s.-i'^), 
 11.1 Ind. 2."i7. 
 
 '■' Pennypaeker V. Cap. Ins. Co. (IHiMI), 8(» Iowa ."i(i. -State v. Fid. & Cas. Ins. Co. 
 (1HS!»). 77 Iowa (lis. -Slate V. Miller (ISS.".), (ili Iowa 2(i. -lOii. Life v. Hoard of Kq. of 
 Des Moines (ISSS), 71 Iowa 17S. 
 
 1" State V. Western I'liion Miit. Life Ins. Co. tlSillli, 17 Ohio St. I(i7. Cross v. 
 AvnistroiiK (1887), 41 Ohio St. tlW. State v. Ueiiimniid (1SS7), I.") Ohio St. 211. 
 
■ I ■ 
 
 688 
 
 INSURANCE LAW OF CANADA. 
 
 r '■ 
 
 Is?- 
 
 Missouri,' Pennsylvania,- Xcw Haniiiwhire.'' Vermont,' Illinois/' 
 Massachusetts,'' Nebraska," Tonnessee," Wisconsin," Connecticut,'" 
 Kansas," Minnesota,'- Alabama," luclianu," Georgia,'' Maryland,'" 
 
 Texas, '"^ Maine'' and Louisiana.'" 
 
 ' E(|uitiible Life Ass. Society v. Cleiiieiits (IKlU, HO W S. 22(i.-\. Y, Life Ins. 
 Co. V. Stone (lHitO>, 42 Mo. App. :«J.-.Miiy on In.s. S 5!Kl. -Dongan v. Siui Fire OiJiec 
 (if London (ISIKI), :J9 Mo. App. ()"(>.— Citv of St. .Joseph v. Ernst (ISKS), i».-| Mo. 'Ml 
 
 -Uoninion wealth v. Biddte (1H!)1|. i;t!t Fa. St. (Kt").— Do. v. Morningstiir (lS!»lt, 144 
 Pii. St, 1(«.— .Etna Fire Ins. Co. v. City of Keiidin},' (iss,s>. 11!) I'u. St. 417. 
 
 •■' Conneclicnt River Mut. Fire Ins. Co. v. Way (lS8:i), (12 \. H. (i22., anil Ins. Co. 
 V. Whipple, fil N.H. (51. 
 
 * LyeoniinK Fire Ins. Co. v. Wright (ISHSi, (W Vt. .">1.5. 
 
 ■' Watertown Fire Ins. Co. v. Hust ( ISil2», 141 III. S.-).- .Mat . Fire Ins. Co. v. Swigert, 
 (1887), 120 111. :«», s.c. 11 X. K. Rep. 111). -Gerniania Ins. Co. v. Swigert (US,><i)), 128 III. 
 237.— City of Chicago v. Fhieni.x Ins. Co. (1S,SS), 12(illl. 27(>. 
 
 « Employers Liahility Ass. Co. v. .Merrill (18i)l), l.-io Mass. 40i) ; s.c. 20 N. E. Rep. 
 .529. 
 
 - State V. Benton (IKSi)), 2.5 Neh. Sll ; h. e. 41 X. W. Hep. 7!»:).— Harbor v. H(ehni 
 (1887). 21 Xel). 4.50. 
 
 •* Ins. Co. V. House (1«KI), SO Tenn. 4H8.~State v. I'lwenix Ins. Co. (18<)a), 02 Tenn. 
 420; s.c. 21 S. W. Rep. 8!i:i. -State v. Thomas (ISiKO, SS Tenn. 4!)1. — Roniaine v. Union 
 Ins. Co. (ISi);)), 5.5 Fed. Rep. 7-51. 
 
 ■' State (.«• n:l. Covenant .Mut. Ren. Ass. of 111. v. Root (18it;i), Ki Wis. 0(i7.— State 
 V. Citizens Ins. Co. of .Mobile (1888), 71 Wis. 411. 
 
 "•Cooke V. Warner (18SS», ;5('. Conn. 2:i4: s.c. 14 Atl. Rep. 708.— Am. Ca.s. Ins. & 
 Secy. Co. v. Tyler (1801), (10 Conn. 448. 
 
 " Fhienix Ins. Co. v. Welch, 29 Can. t)72.— Southwestern Mut. Ben. Assoc, v. 
 Swenson (1802), 40 Kan. 440. 
 
 i-i State V. Fidelity & Cas. Ins. Co. (1888), :«) Minn. .5;!8; s c. 41 X. W. Rep las. 
 
 >'• Boulware v. Uavis (1800), !Hl Ala. 207.— Ala. (Jold Life Ins. Co. v. Lott( 187.5), .54 
 Ala. 400. 
 
 '* State v. Ins. Co. of X..\. (1888), 11,5 Ind. 2.57.— Relim v. (lerman In.s. & Sav. 
 Inst, of Quincy (ISiM)), 125 Ind. 1:1.5. 
 
 ''' Trav. Ins. Co. v. Sheppard (1800), 85 Ga. 751 . 
 
 "'Oland V. Agric. Ins. Co. (1888), (iO .Md. 248; s.c. 14 Atl. Rep. tiOO. -Metro. Life 
 Ins. Co. V. Denip.sey (18!H)), 72 Md. 2S8: s.e. 10 Atl. Rep. 042. 
 
 " .Etna Life In.s. Co. v. Hanna (1801), 81 Te.x. 487 : s.c. 17 S. W. Rep. :i.5. 
 
 '" Hazeltine v. Miss. Valley F. Ins. Co. (ISOU), .55 Fed. Rep, 74H. 
 
 '" State V. Xew Engl. Mut. Ins. Co. (1801), 4:( La. An. VXi ; s. e. 8 So. Rep. 888.— 
 State V. Lpl. & Ldn. & Globe Ins. Co. (1888). 40 La. An. 46:1 ; s. e. 4 So. Rep. .504. 
 
 In Seyk v. Millers Nat. Ins. Co. (18S0), 74 Wis. ()'., 72, a contract with a foreign 
 insur.ance company was held to be controlled by the Wisconsin statute. 
 
 See also Equitable Life Ass. Soc. v. Clements (18(K)), 140 I'.S. 22(i, where policy 
 was held governed by the laws of the state of its inception and completion. 
 
 In Curnow v. Pho'nix Ins. Co. of Hartford (1802) Ki S. E. Rep. i:f2, the Supreme 
 Court of South Carolina ruled that the delivery of a foreign company's policy by the 
 agent constituted the contract, and the cause of action ar(jsc where the loss 
 occurred. 
 
 It was decided in Hacheny v. Leary (18S;5), i-> Or. 40, that taking an application 
 for life insurance by an agent of a company, which had not complied with the laws 
 of the territory, and forwarding it to the company at its domicile, where the j)olicy 
 was issued, was not "doing busiiu'ss" in the territory within the meaning of the 
 statute ; but sub.se(|Uently taking a note for an instalment of the premium and 
 transmitting it to the company, was held to con)e under that term. 
 
FOREIGN COMPANIES IN CANADA. 
 
 689 
 
 In Wrestling v. Warthing (I8()0>, 1 Ind. App. l'I7, the court wuh of opinion that a 
 foreign company, wliicli had not complied with the statutes, could not maintain an 
 action for aimual dues ; and tlie fact that such company had been lissolved, and the 
 suit was brouglit by a receiver of it, and the company could not then, for tliat reason, 
 comply with the statute, did not permit the receiver to maintain the action. 
 
 The trust character of securities deposited with some stati- ollicial for the pro- 
 tection of policy holders was discussed in Oook(' v. Warner (ISSS). .">ti Conn. \>.U, s. c. 
 14 Atl. Rep. 7!»S. It was said there that such trusts have been held as perfect as 
 those created l)y deed or will, and as much entitled to protect ion from courts; and 
 where the attairs of a company were placed in ttie hands ot leccivcrs, the latter 
 could not by action recover the amount deposited with the state treasurer. The 
 court said :-" It was a trust fund in his liands for the l)enellt of the various policy 
 holders. The state had made him a trustee, placed no limitation upon his riu'lits 
 and powers as such, and presumably intended to leave him subject to the general 
 law of trusts. When the trust terminates, it is his duty to distribute the fund 
 among the beneliciaries. But, as the statute provided that the company shoulp 
 receive the interest and dividends upon the securities, the receivers were held to be 
 entitled to tlie income and dividends that had accrued or might accrue afterwards 
 while in the hands of the trustee." 
 
 See also Beach, 50, on the question of the status of foreign insurance companies 
 in the United States. 
 
 .! ■ i 
 
 44 
 

 
 ; " '• 
 
 jf 
 
 CHAPTER XXIV. 
 
 WINDING-Ul' OF CO.MI'ANIKS. 
 
 41H. (iKNliKAl, KKMAltKS, I.E(iISI.A- 
 TIVE KNACTMENTS AND JDRISI'Rl'- 
 DKNCE ON \VI.VI)1N(1-UP OK COMPANIES. 
 
 419. ArnioKiTV of mastkk — in- 
 
 80FFUI1:NT SlUllilTY. 
 
 ■I'AK Deci.ahation ok ijividenu out 
 
 OF PAID-UP CAPPl'AI. OF INSOLVENT 
 COMPANY. 
 
 421. Calls ON snx k ak'ikk sitspkn- 
 >n>N OK i.it'i:Nsi:. 
 
 418. General remarks, legislative enactments and juris- 
 prudence on winding-up of companies. — Tlie provisions of the 
 DorainioTi Winding-up Act ' apply to all foreign companies doing 
 business in Canada as well as to Canadian companies, and where a 
 foreign company is in liquidation abroad, it may still be wound up 
 here under the Dominion Act, the effect of the winding-up here 
 being to entitle the liquidator here to realize tlie assets and, after 
 paying the creditors (not merely creditors within this jurisdiction, 
 but all creditors), to remit the balance, if any, of the ansete to the 
 foreign liquidator to be applied and distributed as may there be 
 directed by the proper forum. In other words, the winding-up in 
 Canada is subsidiary and ancillary to tbat instituted in the forum 
 of the domicile of the corporation." 
 
 Under the Winding-up Act before its amendment,' the 
 Supreme Court of Canada doubted the constitutionality of Cana- 
 dian legislation dealing with the winding-up of foreign companies,' 
 but sincR the amendment and as the Act stands to-day, there can 
 be no doubt concerning its constitutionality and its application to 
 foreign companies.' 
 
 ' R. S. ('.. c. \->\). 
 
 - Alli-n V. Iliiiisoii (?■?) /■( till' Sfottisli ran. .Vsliestos Co.l, IsS. U. In re 
 
 Quuen.sl.iiid Mcrciiutilc Agency Co.. TiS Law 'I'inn's 87S. — //i /' Commi- li.inkof 
 
 Australia, M I.. I{. (Cliy. iJ-i 174.-//! n Matlieson Bros. (Lil.). 27 L. R. (Cli., I).) 22;". 
 — /n re (Joul Bank of India, (> L. R., I'^iuily Cases, .">17.— /» re (Jlasgow & l.ondc i 
 Ins. Co., Supr. Ct., Monlroal, lHi)2 (not reported), and see supra ^ II I. 
 
 ' 47 Vic. c. ;«). 8. 1. 
 
 < Merchants Rank of Halifax & Gillespie, 10 S. C. R. 312. 
 
 ' See note 2 svprn. 
 
 iti 
 
w. 
 
 WINDING-UP OF COMPANIES. 
 
 691 
 
 The Domiuion Winding-up Act ' provides for the compulsory 
 liquidation of companies on the application of creditors. The 
 "Winding-up Amendment Act, 1880,- provides for the voluntary 
 winding-up at the instance of shareholders. ' 
 
 The expression " insurance company " in the Winding-up Act 
 means a company currying on, either as a mutual or a stock com- 
 pany, the business of insurance, whether life, fire, marine, ocean or 
 inland marine, accident, guarantee or otherwise.' 
 
 The Dominion Winding-up Act, however, does not supersede 
 the Ontario provincial legislation regarding the appointment ot a 
 receiver. There is no general rule that a receiver already appointed 
 must be displaced by the iiquidiitor under the Winding-up Act.'' 
 But the receiver is usually named liquidator, and conversely, where 
 a receiver is applied for after the liquidator has been appointed, the 
 liquidator is usually named receiver.'' 
 
 In provincial mutual fire insurance companies a receiver was 
 usually named for winding-up ;^ l)at in the revision ot 1887" an 
 essential provision was omitted.' This appears to have been a 
 mere oversight, for tlu' companion Insiiiance Act, R. S. ()., 1881, 
 c. 160, continued '" the large powers conferred on receivers of insur- 
 ance conn.aiiies by 39 Vic, c. 2:J, sec. 21 ((),). In R. S. 0., 1877, 
 c. 167, s. 153, '• receiver "" is used synonymously with " liquidator," 
 and 53 Vic, r. 39, s. 10 (0.), expressly provides that the High 
 Court, u[ion the petition of the Attorney-General or of anyone 
 interested, may, by judgment or ortler, limit the time within which 
 the iM(ri)oration shall settle and close its accounts ; and may for 
 this specific purpose, or for the purpose of liquidation generally, 
 appoint a receiver. 
 
 In Uiiiov Fire Ins. Co. v. FiU-nrnmons el al.,'' the insurance 
 company'"' license had been withdrawn ; B had been appointed 
 receiver and had, Itv order of the Cliaiieerv Division, sued all 
 
 I R. S. C, e. 129. - 52 Vii-., u. :t2. 
 
 ■■' Re Out. Bolt & Forge Co., 25 O. K. 1(17 (1S!IU. 
 
 * R. S. ("., c. l-_'ii, see. 2 (b». 
 
 5 H. S. (). ISST. c. 44. sees. 2.!,:l.5, .->:{ (S).— AV I'oiitirl, etc.. L. H. 12 Cliy. I). MYl—Re 
 Lloyd, etc., Cliy. D. :j:«t.-Hjiitlett v. XdiIIi Ave. Co., 5:< I,. T. N. S. (il 1, (il2. 
 
 "I'erry v. Oriental Hotels (X, L. R. 5 ("liy. \\)]}. 12(1. -AV Orieiitjil Hotels Co., 
 L. R. 12 E(|. I2(i.— Royle v. Hel tws Colliery Co., 2 Cli. 1). 72().— /ie Pouiul, etc., 42 Uhy. 
 D., 412. Hunters Ins. Corpns. Act, 18i)2. p. 57. 
 
 ■ a(i Vie., c. 44, ss. 74, 75, 7(i. « R. S. O., 1S77, c. Kil, .s. 7S. 
 
 9 Hill V. Merchants" & Manuliictiircrs" Ins. Co., 28 Gr. .561. '" Sec. 22. 
 
 " 32 U. C. C. P. (il5, infra S 421. 
 
 ■:\l 
 
 ; I 
 
 I ; 
 i i 
 i i 
 
t-. ^i 
 
 692 
 
 INSURANCE LAW OF CANADA. 
 
 ).■■ ': 
 
 members in arrears for calls ; on appeal, it was held, affirming the 
 coui't below, that the suit and proceedings therein were valid. 
 
 As applied to the liquidation of Ontario provincial insurance 
 companies, the Dominion Winding-up Act is said to have proved 
 tedious and wasteful.' In the case of the Union Fire Insurance 
 Company, the provincial license was withdrawn in 1881 and wind- 
 ing-up proceedings began. In 1885, in the Ontario Court of Ap- 
 peal, while expressing his opinion that upon one ground, which he 
 designated as a purely technical and unmeritorious objection, the 
 order in appeal ought to bo reversed. Osier, J, A., said : — " The 
 only practical result of the objection seems to be that the winding- 
 up of this insolvent company has been delayed for more tlian a 
 year. The delay and expense which have been already incurred 
 are a reproach to the administration of justice, the litigation having 
 been pending for nearly live years, with the result, as we under- 
 stand, that between $5000 and $6000 of the company's assets have 
 been expended in costs." " The litigation worked its way onward 
 to the Supreme Court of Canada, which vacated the order that 
 was in appeal. This was in 1886. A new order was hiad. Liti- 
 gation broke out anew and, passing from court to court, the 
 Union Fire Insurance Companj' had l)y the year 1890 once more 
 worked its way up to the Supreme Court of Canada. In his judg- 
 ment, Mr. Justice Patterson, citing the words of Osier, J. A., in 
 1885, said: — "The reproach to the administration of justice is 
 now more glaring, tor four years more have elapsiMl and, save as 
 advanced by the recent hearing of this appeal, the litigation is pre- 
 cisely at tlie same stage, the former order having been replaced by 
 that of the Chancellor, but with an inevitably large addition to the 
 costs.'' 
 
 Prior to tlie Insurance Corporations Act, it was found neces- 
 sary in Ontario, in the case of j)rovinoial insurance companies, to 
 resort to the Dominion Winding-up Act, because the necessary 
 powers were not elsewhere provided. 
 
 419. Authority of Master Insufficient security. — A Master 
 of the High Court has no authority under the provisions of the 
 Insurance Corporations Act, 1892, to direct security to be given 
 by an officer of a company being wound up. in place of an insuffi- 
 cient security already given by such officer. Section 54, ss. 5 and 
 
 
 ' See IntrodiK'tion to Iluiiter'.s Iiis. CIorpiiH. Act,, 181)2, p. Iviii. 
 2 13 A. H, 21(5. » 17 S. U. U. 272. 
 
WINDING-UP OF COMPANIES. 
 
 693 
 
 6, merely provide tor the giving of security as interim receiver, which 
 may be made a condition of retention in that office, but default in 
 giving which cannot be punished by imprisonment for contempt.' 
 
 420. Declaration of dividend oat of paid up capital of insol- 
 vent company. — Should the managers, directors or trustees of any 
 fire, life, marine or other insurance company, incorporated by the 
 Parliament of Canada, or of the Province of Quebec, knowingly 
 declare any dividend or bonus cnit of the paid up capital of an 
 insolvent company, they are jointly and severally liable for all the 
 debts of the company then due, or thereafter contracted, while 
 they remain in office.- 
 
 421- Calls on stock after suspension of licePi — Fn actions 
 for t'iills on stock, an obji'ctioii was taken tliat there 'vas no power 
 to sue, because the company's license under 42 Vict., c. 25 (Out.), 
 had been revoked ; but as it was sbown that one B. had been ap- 
 pointed receiver and was specially recinired by order of the Chancery 
 Division to prosecute all members in arrear for calls ; and that he 
 had adojited these actions au<l was prosecutintj them as receiver, 
 it was decided that the objection was not teiiabli^' 
 
 And where bv an order of the Lieutenatit-Governor of Ontario 
 in fViuncil, issued iiiuler 42 Vict., c. 25, the plaintiffs' license bad 
 been and still Wiis suspended, whereby it liecame unlawful for the 
 plaintiffs to do any furtliei' l)usiness in Otitario ; and the calls 
 siu'd tor were made for tlie purpose of enaliliiii; the plaintiffs to 
 carry on their business in Ontario, it was ruU-d, that the defence 
 should have allcireil nt>tico in the Gazette ot the suspension of the 
 license, pursuant to R. S. O. (1877) c. 160, s. ::54, and 42 Vict., c. 
 25. s. :?. sub-sec. 7 : Itut ,in anicndnieut was allowed, this point not 
 having been taken, and it was held, also, a ^^ood defence h)r that 
 bringing an action for culls was transacting Imsiness of insurance 
 within the mi-aning of ihc above Acts.' 
 
 ' lie Duiii. I'rcn. Itiiie\ oIimiI \ KiuIdw iiitiiil Ass., 21 ().l{. 110. - U.S Q Mlti. 
 
 '■' I'liion I'Mre lii>. Co. v. l''ilzsiiiMn()iis : .Siiinc plainliirs \ . Shields, IVI CI' iidU. 
 
 * I'liioii Kiro Itis. Co. V. I.yiiiJiii. Hi (^ H. 171. 
 
 Sec l''0Kij V. .Siipri'iiii' I.Dilvcr Oilier of (ii)lili'H I, ion ( .Muss. |S!i:)>, Ml! N. K. Hep. (illU. 
 for II reieni Aini'ricuii deeisioii rei,'anlinj,' I he winilinjj: up uf a muHml heiielil insur- 
 aneo eorporatioii oixanizeil iiinlerllie sialuics of Massaeliiisetls luiil tlie riKlilH of 
 cortilieate lioldeis in llie distrilmlioii of assets. And set' New JM'ii Life Ass'n v. 
 VVeinle (ISSll), 12S I'a. C|. .")77, where the defence in im action bnmxhl Iiy the reeoiver 
 for assessments was, that, the ajjent had made niisrepresentaMons as to the associ- 
 ation havinK a piiitlnp capital stock which would prove a guaranty against any 
 paynienl of assessments, aiul the IVtiiisylvaniii Supreme Court decided, that this was 
 Buch a material misrepresentation as to .justify a rescission of the contract. 
 
fi i 
 
 jLJluh. 
 
 
 m 
 

 APPENDIX. 
 
 ill 
 
 CANADIAN INSURANCE LEGISLATION. 
 
 DOMmiON ENACTMENrS. 
 
 THE JNSUUAiVCK ACT, CHAP. 124, KKVISKl) STATl TKH OF CANADA 
 
 >\m\i, AS AMKNDEI) HY .M VIC, ClIAl*. is (18HH), AND r.T VIC. 
 
 CHAP. 20 (ISilt). ANM) .^'nit VI(\, CHAP. 20 (18i»5». 
 
 '/'/((■ /irtnci/iiil II iiii'iiiliHi'iils 11 ri' n/ujirii in itiitiin.' 
 
 (TIr- Act of 1*SS, astseiiU'd to 22ii(l May of tliiU yeaf, amended siihseition d) of 
 section H ; all the other aiiu'ndiiicnt.s were inadi- by the Act of IHSM, aHseuted to .July 
 23rd of the year last iiu'iilioncil, with cxceptioit of Hec. 211, .iiiieiidiMl liy .')S-.".!t \'lc., 
 chap. 2(l(lS9.-i>. 
 
 HEH .Majesty, by and with .idvirc ami consfiil of the Seiiaie and House ol Coiii- 
 inons of Canada, enacts as tollows : 
 
 SMOHI' IIII.E. 
 
 1. 'ri\is Act may lie ciled as " 7'/ii Insnninri' Act." 
 
 iNii:i(i'Ui:iA'i'ii)N. 
 
 li. Ill this Act. unless the eonlext otherwise i-e(|nires : 
 
 ill.) Tlie expression '" Minister" nieaii> the .Minister ol I'iiianee and ltii<jver 
 General ; 
 
 (6.) 'l"he ex|iressioii " .Sniieriiiteiident " means the Supi-rinlendenl of Insur.inee ; 
 
 (('.) The expression "eonipany" means and inelndes any rorpoiat ion nr .any 
 Hocii^ty or associalion. ini (n|ioiated or iinineori)oraled, or any pari neiship larryiiiK 
 on the linsiness of insinaiice : 
 
 (f'.) The expres.sion "" t'amidiaii company" mcan^ a company incorporated or 
 legally formed in Canada, for the purpose of carryiii>;on I hi' business ol inHuiance in 
 Canada, and which has its head othie therein : 
 
 (<'.) The expression " aiieni ' me.ms the chief a^jcnl of the company in Caniida, 
 named as »nch in the ]io\ver ol ,iltoriie\ hereinafter referret' to, liy wjiati-ver name 
 he is designated : 
 
 (/'.) The ex))res-.ion "chief .itieney ' means the pi'incipal otticc or place of busi- 
 ness of the compan.N in Caiiiula ; 
 
 ((/.» T"he expression "inland marine insurance" means marine insurance in 
 respect to subjects of Insnrtinee at risk tipcm the waters of I'aiiada above the har- 
 boui of Montreal : 
 
 (/i.) The expression "Canadian policy" or "policy in Canada," an regards life 
 hiHuraiiee, means a polii\v issued by any company licensed under this Act to trauHact 
 the business of life insurance in Canada, in favour of any person or peisons resident 
 in Caiuida at Ihc time when such policy was issued : and " policy-holder in Canadii " 
 nu'aus any such person as aforesai<l ; 
 
 (('.) The expression "('anadian ))i)liey " or "jiolicy in Canada.' as rcRards lire 
 and Inland marine insurance, means a polic,\ of insurance on an\ property within 
 
 'The iniijority "f fciot-iiotfls infrn rot'orriiiK In Dnminion oniii'tiuiMili' have liooii liiki'n from 
 reports imblisliotl liy llic Supiiriiitemlent of Itifiiriiiiyc 
 
 1^ I 
 
 lh 
 
696 
 
 INSURANCE LAW OF CANADA. 
 
 Canada, issued by uiij- conipaii.v licensed unaer tliis Aft to transact the businass of 
 fire or Inland marine insurance ; 
 
 (j'.( Tlie expression "license" iiicluiles certiticate of registration ; 
 
 (A.) Tlie expression "policy" includes a certificate of membership relating in 
 any way to life insurance, niKl iiiij/ other irri'ffen contract of insurance ^chether 
 coiitahied in one or more ilocumeiit.i. (I'nder the Interpretation Act the word 
 "written" includes words "printed, painted, enfiraved, lithographed, or otherwise 
 traced or copied "). 
 
 AI'l'MCATIOX OK .\( r. 
 
 ;*. The provisions of this Act shall not apply— 
 
 {(I.) To any cr)nipany transacting, in Canadii. ocean marine insurance exclu- 
 sively : or 
 
 ih.) To any policy of life insurance in Canada, issued previously to the twenty- 
 second day of May, in the year one thousand eight hundred and sixty eight, by any 
 company which has not .subsc(|ucntly received a license ; or— 
 
 (c.l To any company inccu'porated by an Act ot the Legislature ol' the late pro- 
 vince of Canada, or by an Act of the Legislature of any provli;ce now forming part 
 of Canada, which carries on (he business of insurance, wholly within the limits of 
 that province by the Legislature of which it was iiicorporatcd, and which is within 
 the exclusive control of i lie Legislature of sucli proviiu-e : but any such company 
 may, by leave of the (bivernor in Council, on complying with the provisions of this 
 Act, avail itself of the jirovisions of this Act, anri if it so avails itself, the provisions 
 of this Act shall thereafter apply to it, and such company shall have the power of 
 transacting its business of insurance tlirouglioul Canacla.' 
 
 I.K i:NSt>, 
 
 4. Xo company or pei'son. except as heicinaftcr pi-iividcil, shall accept any risk 
 or issue any i)oli(y of (lie or inland marine iiisniaiicc oi' policy of life insurance, or 
 grant any anmiily nu a life or li\es, or receive any prennum. or carry on any busi- 
 ness of life or lire or iidand uiarim- insurance, in Canada, or |u'osecule or maintain 
 any suit, action or proceeding, eitliei' at law or in ecpiity. or llle any claim in insol- 
 vency relal ing to such liusiness, wil hdiit liist <ilitaiiiiMu: a license I rum I he .Minister 
 to carry on such business in Canada. 
 
 ■_'. Hefore issuing a license to a loiiipaiiy legal I \ foi'me<l elsewhere I han in 
 Canada, the .Minister must be sal islied that i Ih> eor|Mirati' name of the company is 
 not that of any other know n I iimpany incoi puialid oi- uiiiMcor|iorati'd, or any name 
 liable to be confoundeil tlieriu itii. nr olherw i^e on pnblii Liniunds ob.jeetionable.-' 
 
 .1. The license shall be in such b)rm as is. from lime lo time, delerndiu'd by the 
 Minister, and shall spe<ify Ihe liusiness In be carried on by the company: and it 
 shall I'Xpire on the ihirly lirst da\ of Mar^'li in each >('ai'. bin shall be reiew able 
 from year lo >e;ir, 
 
 U. The .Minisicr, as soon as I lie eompiin> a))plyiii:; for I lie same has deposited in 
 his bands Ihe securities hereinafter iiieiii ioned. and has oiherwise eoiihirmeil lo Ihe 
 reiiiiireinenls of Ibis .\et. shall issue such license as aforesaid. 
 
 <lA. .1 licrii.sc s/iiill mil hr i/riiii/,il /u ii inm/iK iii/ hi ciirri) nii llir liiisi inss iij 
 life iiisiii'ii llCf III viiiiilii iiiil'iDii iritli II III/ iif/ii r hrii iir/i iif i usii rii iiii .' 
 
 ' I'niler the orlRiiiiil siiliHi'cliuns I'nMtiiiiiccl in llio Km-i^cil Sl;iliites, a Dcmiiiiiiiii license pnulil l)o 
 grniilnil til 11 (■oiiipiiiiy iiiciirinirileil iimlcr tin- iiiitlciritv iif inie nf llin iipivliu'es nf llic llniiiininn for 
 the iniiisii.'tiiiii (if llie liii«inosM of life insiir.nice, lint •'iii'li ii lici'iisc cnul'l mil lie irraiiieil In a prn- 
 viiieinl iMiiiipiiii.v foriiieil 'or the triiii.siiciiim cif iiiiy ether kiii'l nf iiiMiniiicc. Hiuler tlic iiinendoil 
 guliscclinn, nil iiisiiriiiioi) eninpiiiiies incnnioniloil liy nr iiiiilcr the aiilhurilv "f the beizifliitiirencf the 
 viirieiis provineeK nf the Doininimi, arc placeil iipiii the same foiiliiiB, and are enlitleil lo llniiiinion 
 lloensc upon eoniplyiiiit with iho Iciuii' ind ediidiliniifi of ihe Iiiciiraiieo Ael. -' lii/in p. Tlii 
 
 ' ^'ectioii li.v is new so far as the stalute is eniu'erncil, hut, asroKards the pracliee of tlio ilepiirt- 
 meiil of iiisiiraiioo for many years, involves no new principle. 
 
 I lie Imsio of siihpeclion one is an ilrler in Cimnoil passed in 1>IS'2 wliieli has lieeii rinidly adiieroil 
 to since that time. 
 
■Mi— 
 
 j! 
 
 DOMINION ENACTMENTS. 
 
 697 
 
 2. A licenHC may be granted to a. company to carry on the ttiree foUowinif 
 classes of insurance, viz. : fire insurance, inland tnarine insurance and, cyclone or 
 tornado insurance or any tiro of the said classes. 
 
 ;{. A license may be granted to a company to carry on any tiro of tlie followinii 
 classes of insurance : — 
 
 {a.) Guarantee insurance, that is to say : to guarantee tlictide/iti/ of persons in 
 positions of trust ; 
 
 d>.) Accident insurance, that is to say: lo insure aijainsf bodily injury and 
 death by accident, including the liabllily of enij)/oyers for injuries to prisons in 
 their employment ; 
 
 (<".) Plate-glass insurance, that is to sai/ : to insure against the breakage of 
 plate or other glass either local or in transit ; 
 
 id.) Steam /toiler insurance, that is to say: to insure against loss or damage 
 to the life, person or property of the insured or of another for irhich the insured is 
 liable, caused by the explosion of steam biillers. 
 
 I. A license may, on the recoinmenilalion of the :'<uperintendenl of Insurance 
 approred by the Treasury Hoard, be (/riinfed lo a aourany to carry on any class or 
 classes of insurance not hercinliifure rninneraled. but no such license shall be 
 granted for more Ihiin tico sui'h classes of Insurance, or on the like recommendation 
 ajijirored as aforesaid, a license may be grmifed lo a company to carry on one of 
 the classes of business above <nii meriited. and one oilier class of insurance not 
 aborr enumerated. 
 
 ."). E.rccpl as hereinlieforr jirorideil, a license shall not be i/riniled lo a eompanij 
 to carry on more than lico classes of business. 
 
 Criie aiiii'iidiiijiAcI provides tlmt this section sliiiil not interfere witli the renewal 
 of licenses granted before the pissing of the Act, iird .Inly. ISUl, or with iin.v appli- 
 cation for license pendinji on the 1st day of April, lS!(t). 
 
 <Jlt. A licen.fc shall not be granted lo a company irhich is bii ils charter author- 
 lied or enijuucered In carry on classes or branches of i nsu ra nee greater in ninnber 
 or lariely Ihan Ihasr fur irliirh a license cmild be ijranleil under llie prorisions oj 
 the 711, rl preceding .■^eclion. I'roriileil. haicerer, that any cnmpiiny incorporated 
 elseiehere than in Canada, regardless of ils charier pincers, leliich has a paid-up 
 capital, in the casi' nf a cnnipany anthorir.ed to Irausarl among oilier classes nl 
 business the business n/' tier insurance, of at I asl three hnnilred Ihitiisa ml dnllars. 
 anil hi llie case of iiuji other ciinipiniy, of at lea.it one hundred thousand dollars, 
 ichollfi unimpaired and in iiddillon lo siicn pa id-up ca pHal linlils iieer a nd above 
 all liabilities estiniafeil according lo the e.i isling Dominion Horern nieiil slii nilard, 
 a rest or surplus fund eipial to at least tneiity percent, ol' such paid-up eapilal. 
 and llie nuirkel nil ne of irhiise slock is at a preniiiliu of at least liei nly /ler criil., 
 and irhich has iiirrled on siiceessfidlii for a period of at least Jive years, the busi- 
 ness for irhich a license is sought, being only one cla.ss of insurance, or if more than 
 one then such classes as iiiai/ be rtnnblned under the jirorlsions ol' the ne.et preced- 
 ing section, shall III deemed eligible for and inlilled to such license upon deposit- 
 ing, keiping and ma inlainiiig as.sets in Canada as deliueil by siibsiclions hro and 
 three of secliou ten of' this /id. over and above and in e.eeess of the anionnl lekicli 
 would be required, if such company's charier powers leere limited lo the iiurpo.ies 
 for irhich such license is asked, lo such an anioiinl as the Treasury Hoard, on llie 
 report of the Superi nlendenl, shall fi.r or determine, not being less lliini leii Ihon 
 sand dollars nor more Ihan lieo hundred Ihoiisand dollars, sneli e.icess to In- 
 regarded as the einiipany's Canadia n capital. 
 
 (The amending Acl provides I hat I liis section shall not interfere wil h I hi' renewal 
 of licenses granted htd'ore the passinu' of the Act, i(rd .Inly. ISKIi.i 
 
 i i 
 
 ' Scotiim fill is riDW iiitroiiiioed intci tlio statute fur tlie first tiini'i but ricently ilie iiriu'tioe nf the 
 doiiirtmoiit of iti.'<uriinee, sHDi^tiuned by Order in Cnuiuiil, has boon .sulwtiintially In uflcordiiiioe wjtii 
 iti< provi-'iioiiB, 
 
':i.- •■ij't 
 
 698 
 
 INSURANCK LAW OF CANADA. 
 
 IIKI'OSITS TO lilO MAIIK HKKOHK TIIK ISSl'K (tF I.K KNSi:. 
 
 7. Evfrv compai'y I'nrrvin}^ on the liusini'ss of lifo insurance, and every Cana- 
 dian company I'arrvinK on tlie Itusiness of tire or of inland marine insurance, or of 
 botli combined, sluill, before the issue of sucli license, deposit with the .Minister, in 
 such securities as are hereinafter mentionerl, the sum of tifty thousand dollars ; and 
 every company incorporated or legally formed out of Canada, carrying on the busi- 
 ness of lire or of inland marine insurance, or of both combined, shall, before the 
 issue of such license, deposit with the Minister, in s\ich securities as are hereinafter 
 nu'ntioned, the sum of one huinlred thousand flollars. 
 
 H. All such deposits may l)e made by any company in securities of the Dominion 
 of Canada, or in sec\irities issued by any of the provinces of Canada ; and by any 
 company incorporated in the United Kingilom, in securities of the I'liited Kingdom; 
 and by any company incorporated in the Cnited States, in securities of the United 
 States; and the value of such securities shall be estimated at their market value, 
 iiitl cixeidlii!/ liar, at the time when they are so deposited : ' 
 
 '1. If any securities other than those adove mentioned are oll'ered as a deposit, 
 they may be accepted, at such valuation and on such conditions as the Treasury 
 Ho.ii'd diiects : 
 
 ;f If the market value of any of the securities which have been deposited by any 
 company declines below that at which they were deposited, the Minister may notify 
 the company to makea further deiwsil, so that the market value of all the securities 
 deposited by the company shall be ecpial to the amount wliicli it is re(|uired by this 
 Act to deposit ; and on failure by the company to make such rurllier deposit within 
 sixty (lays after l)eing calle<l upon so to do, the .Minister may withdraw its license : 
 
 1. Any company licensed under this Vet may at any time dei)osit in the hands of 
 the Minister any further sums of money or secnrit ies beyond the sum herein reipiired 
 to be deposited : and any such further sums of money, or securities therefor, so de- 
 posited in the hands of the Minister, shall be held by him and be dealt with accord- 
 ing to the provisions of this Act in respect to the sum reipiired to be deposited by 
 s\ich company, and as if the same had been part of the sum so i'e(|uired to be de- 
 posited : - 
 
 5. If (I I iniji liiif il 11/11)1(1 1.1 IhttI II riDii/iii HI/ /iii.s mi i/i'j>nsi/ iiilli I hi \l i iiisli r a 
 Sinn in I'.rcr.is nf f/ir n ninitiif rfi/iiirril iim/ir l/ir />riirisiiiii.s itf fliis .1(7, llif 'I'n usury 
 Uoiiiil iiiiii/, upon hi'liii/ siih'.ijii'il tliiit tlir hi/ircsl of t)y roiiijiitinjuCiiniiiliini jiolin/- 
 holi/rr.s irill not Iti: jirrjuilkcil t/ieri'lii/, iiriil npon (lir ylrinif of .•inch noliii \ miil the 
 rjcfrrisi' of .tiich othrr prrcftntions as nitij/ xceni r.rpiiticiit,iiufliorise the irith'Irniral 
 of tlir iniwiit of such e.rrrss or siirh jiortion flierrof ns taiiji lir ilreinrd (tilrisiilile; 
 Jiroviilvil I hill sill h irilliilriiiiiil 111111/ hr (int/ioriziil irithoni thr i/irhii/ of inn/ ■notice..'^ 
 
 0. If it appears from the annual statements, or from an examination of the 
 allairs and condition of any company carrying on the business of (Ire or iidand 
 marine insurance, Ihiit the reinsurance value of all its risks outstanding in Canada, 
 together with other liabilities in Canada, exceeds its assets in Canada, including the 
 deposit in the hands of the .Minister, the company >hall be notilled by the .Minister 
 
 ' Th(! nmondinoiit to the lirat subsectinn of sectiun eitthi, ()iil.v coiilirins wliiit liiui liecn the prac- 
 tice of the dcoartiiiciil ot iii.«iiniiice for miiny yeiirs. I'liore are on rcconl aeveriil instaMce." in wliich 
 seourit'cp hove lipon ull'ered at rates t',C(;f((/i;ii7 /mr, liut in no recent ease have they liron accepted 
 at a higher rate than par. 
 
 - SnbsectioM four of section eight in its original form was obsoaro and its meaning douhttul. As 
 amcndeii, it conlirnis what has been decided by the law ofTicers of the Crown to have been the true 
 meaning ol the original .■iubseetion. 
 
 ' .Subsection live of .section eight is new. The original Act made no provision for a release of a 
 portion of the dcporit of \ company which was deainais of continuing its business, however much in 
 excess of the ri'(|uirements of the statute -ueh deposit might be, and it was considered that casoB 
 might arise in which it would be not only proper to permit a iiartial release, but would be a source 
 of real hardship to be obliged to refuse It. 
 
DOMINION ENACTMENTS. 
 
 699 
 
 to make good the defificiu^y ; and on its failnn' so to do, witliin sixty diiys jiftcr lieing 
 so n()tine<l, he shall withdraw its license. 
 
 !<►. If it appears from the annual statciuenls. or from an examination, as pro- 
 vided for liy this Act, of the ad'airs ami eondilions of any company carryiiiK on the 
 business of life insnrance, that its liahilities to policy-holders in Canada, including 
 matured claims, and the full reserve or reinsurance value for outstanding polii'ies, 
 as hereinafter described, after deducting any claim the company has against such 
 policies, exceed its assets in Canada, including the deposit in the hands of the Min- 
 ister, the (rom))any shall be called upon by the .Minister to make good the deliciency ; 
 and on its failure so to do within sixty days, he shall withdraw its liceTise : 
 
 2. If any such com|)any as is mentioned in tills and the next iireceding section 
 is incorporated or legally formed elscwliei-c than within Canada, the .assets in Canada 
 as aforesaid shall be taken to consist of all deposits which the company has made 
 with the .Ministci- under the foi'egoing jjrovisions of this .\ct, and of siich assets as 
 have been vested in trust for tin; company for the purposes of this .Vet, in two or 
 more i)crsons resident in ('anada. ap()oinlcil by the company and approved by the 
 Minister: 
 
 :i. The trust deed shall first be approved of by the Minister, and (he trustees may 
 deal vvith such assets in any manner i)iovided by the deed of trust ajipointing them, 
 hut .so that the value of the a.ssets held by them shall not fall below the value re- 
 <piired by this s(!ct ion : 
 
 I. In the case of any such life insurance company, which gave written notice to 
 the Minister before the thirtytirst day of March, in the year one thousand eight 
 hundred and seventy-eight, of its intention U> avail itself of the proviso contaiiUNl in 
 section seven of " Tlie Consolirlafnl fiisiirdiicc Art, 1S77," the foregoing retpiire- 
 tnents of this section shall not apply to policies issued previously to that date ; and 
 the deposit of such company, which was in the hands of the Minister, on the twenty- 
 eighth (lay of April, in the year one thousand eight huiulred ami seventy seven, 
 shall be dealt with in regard to sm'li policies, in (Mjnformity wit li I he fonri li and liflh 
 sections of an -Vet passed by the I'.irliament of Canada in the thirtv-lourth year of 
 Her Majesty's reign, intituled "An Ail to dimnd tlir Art rrsjirrti iiij I iiKiirii nre 
 (^iiiiiiiiiiiirs" and whenever the full liability undei' such policies falls below the 
 aniount so neld by the Minister, he may, with the concurrence ui the 'I'reasui'y 
 Hoard, direct that the whole or snch portion of the dill'erence as he deems advisable, 
 shall be released and handed omm' to the company, and so on, from time to time, 
 until the total (U^posit with the .Mini.ster is reduced to the amount of lifty thousand 
 dollars re(|Uired by this .\ct. 
 
 ('I'he sections of Ml Victoria, chap. !•, referred to in this subsection will be found 
 hil'rii at page 717). 
 
 I I. .So long , IS the eondilions of this .Vet ai'e satistled by any company, and no 
 notice of any linal Judgment against the comp.any. oi' order made by i)ie jiroper court 
 in that behalf for the winding up of the company or the distribution of its assets, is 
 served U()iin I he .Minister, the interest upon the seen I'i ties forming the deposit shall 
 be handed over to the company as it falls due.' 
 
 i)()ti;.Mi:.N"l's lo 111') I'lE.iii). 
 
 12. Kvery company shall, before the issue of a lic'cnse to it, llle in the Depart- 
 ment of Finance,— 
 
 {(I) \ copy of the charter, .\ct of incorporation, or articles of association of the 
 company, certified by the proper oflicer in charge of the origiiuil thereof: 
 
 ' Taking into iionsiiloriition the iirovinion!< of tlic Act roi?iiriIinK deiio.nits, the meaning of section 
 eleven in \U oriKiniil i'orni wilm not clear: us iiniendeil, it differs from the oriKinal xection by tlie 
 omiBsion of the words "any ooinimny'.s dopo.iit i.s uuinipiiired," and makei" oleiir what hiis heon 
 understood to be itF moaning and intention. 
 
 ^^ 
 
 
 
 I. 
 
 
 I 
 
 
 ! 
 
 
 
 . i 
 
 ;'l 
 
I?'! 
 
 700 
 
 INSURANCE LAW OF CANADA. 
 
 ill) A power of attorney from the company to its agent in Canada, und^r the seal 
 of the company, if it has a seal, and signed by the president and secretary or other 
 proi)er officers thereof, in presence of a witness, who shall make oath or affirmation 
 as to the due execution thereof; and the official positions in the company held by 
 the olflcers signing such power of attorney shall be sworn to or affirmed by some per- 
 son cognizant of the facts necessary in that behalf ; and— 
 
 ('■) A statement in such form as is required by the Minister, of tlie condition and 
 affairs of such company on the thirty-first day of December then next ijreccdinfj, or 
 lip to the usual balancing day of the company, if such day is not more than twelve 
 months before the filing of the statement. 
 
 1 3. Such power of attorney shall declare at what place in Caiiuda the head office, 
 or chief agency of such company is, or is to Ije established, -and shall expressly auth- 
 orize such attorney to receive service of process in all suits and proceedings against 
 such company in any province of Canada, in respect of any liabilities incurred by the 
 company therein, and also to receive from the Minister and the Superintendent, all 
 notices wliich the law re(iuires to be given, or which it is thought advisable to give, - 
 and shall declare that service of process for or in respect of such liabilities, and 
 receipt of sucli notices, at such office or chief agency, or iiersonally on or by such 
 attorney at the place where such head office or chief agency is established, shall be 
 legal and binding on the company to all intents and purijoses whatsoever. 
 
 14. Whenever any such company changes its chief agent or chief agency in 
 Canada, such company shall Hie a power of attorney, as hereinbefore mentioned, 
 containing any such change or changes in such respect, and containing a similar de- 
 claration as to service of process and notices as hereinbefore mentioned; and every 
 company shall at the time of making tin annual statement hereinafter provided f(n', 
 declare that no change or amendment has been ma<le in llie charier, Act of incor- 
 poritidii or articles of association of the company, and that no change h.is been made 
 in the chief agency or chief agent, without such amendment or change having been 
 duly nolitied to tin; Sui)eiintendent. 
 
 !.■». Duplicates of all such (UKiimenls, duly veritied as aforesaid, shall l>e liled in 
 the ollice of one of the superior courts in the province in which the head ollicc 
 or chief agency of the company is situatetl, — or if the chief agency is in tlie province 
 of Quebec, witli the prothonolary of the Superior Court of the disitict wherein such 
 chief agencv is <'stablished. 
 
 si;kviii: ok coMi'A.Niiis wriii I'uoii^s. 
 
 1 H. After such power of attorney and certified copies are tiled as aforesaid, any 
 process in any suit or proceeding against any such company, in res|icct of any h'abili- 
 ties incurred in any province of Canada, may lie validly served on the c(im|iaiiy at its 
 chief ageiiiy ; and such st'rvice shall be deemed to be service on the coiniiaiiy : 
 
 li. If such power of attorney l)ecomes invalid or incll'eclive from any reason what- 
 soever, or if other service cannot be ellected, the court or a. judge may order con- 
 strnclive service of any process or proceeding to be made by such publication as is 
 deeuud rei|uisite to be made in the premises for at least one month in at least one 
 newspaper: and such publication shall be held to be due service iiprn the conii)any 
 of such process or proceeding. 
 
 .NOT HI'; <ll' I.ICKNSi;. 
 
 17. Kvcry company on lirst obtaining such license shall forthwith give due 
 notice thereof in the Cnniulii Hiizcttr, and at least one newspaper in the country, 
 city or place where the head office or chief agency is established, and shall continue 
 the ])ublication thereof for the space of four weeks : 
 
 :i. The like notice shall be given, for the space of three calendar months, when a 
 company ceases, or gives notice that it intends to cease, to I'arry on business in 
 
DOMINION ENACTMENTS. 
 
 701 
 
 , « . 
 
 Canivda, .such nuticr fo hr a condition pri'crdent to the rHcnse of tlif vonijuini/x' 
 deposit. ' 
 
 I'UIJLICATION OK LUKX.SEl) CDMI'.VXIKS, 
 
 IH. Tlie Minister shall cause to be published quarterly in the Cfinailo (inzrtlc a. 
 list of the companies licensed under this Act, with the amount of deposits made by 
 each company ; and upon any new company being- licensed, or upon the license of 
 any company lieinK withdrawn in the interval between two such (piarterly state- 
 ments, he shall publish a notice thereof in the Canadii Gazette for the space of four 
 weeks. 
 
 ANXL'AI. KETIHNS BY lOMl'AMKS. 
 
 H». The president, vice-president or nianajjcing director, and the secretary, 
 iifluiiri/ or manager of every Canadian company licensed under this Act, shall pre- 
 pare annually, under their own oath, a statement of the condition and allairs of 
 such company at the thirty-lirst day of December in each year, which statement 
 shall exhibit the assets and liabilities of the company, and its income and expendi- 
 ture during the previous year, and such other information as is deemed necessary l)y 
 the Minister. 
 
 2. In the case of such companies carrying on the business of life ins\irance, such 
 statement shall be made in the form and manner sec forth in the l''orm A in the 
 schedule to tins Act ; miilohle rltdnf/fs being >nnde therein in the eii.se <it' eoinfmnies 
 C(irr!/in<j on, Itaslne.s.s on flie (ts.sessnienf plan. 
 
 :l. In the case of such companies carrying on the business of fire or inland marine 
 insurance, such statement shall be made in the form and manner set forth in the 
 Form H in the schedule to this Act. 
 
 ■I. In the case of .such cumponiex nirryinij o>i Itn.sine.s.s other t/itin life, jirf or 
 inland murine in.suriince, .such .statement .shall be made in the /nrm anil manner 
 set forth in. the said Form li, as nearly as eirriimslanees n-ill per)nit, nere.ssari/ 
 changes onli/ being made therein. 
 
 ."). Such statements shall be sworn to before some person duly authorized to 
 adnnnister oaths in any legal proceeding, in the Form V, in the schedule to this Act. 
 
 (t. The Minister may, from time In time, make such changes in the form of ^uch 
 statements as seem best adapted to elicit from the companies a true exhiiiit of their 
 condition in respect to the several points hereinl)efore enumerated. - 
 
 ' The ninendmeiit to the second cliiufe oi' ■'eetioii seventeen removes :i doubt which existed :i.s to 
 whether it wiis nccessiiry lor a comiPiiny applyinp lor the release of its ilcposit to have published in 
 a ncwspnpor the notice which the clause prescribes. Such publication, whether absolutely neces- 
 sary or not, was customary and is now made compulsory. 
 
 'Sections nineteen, twenty ami Iwenty-one have been redrafted and several important iiniend- 
 menl,- uiatle therein, particularly in sections twenty and twenty-one. In sections nineieen and 
 twenty the actuary of a comfiiiDy is mimed as one of the oflicers who may with another iiropcr otfiner 
 verily its statement, in the ease of Canadian conii>aiiies, .ind in the ease of companies other than 
 Canadian, may with another named .illicer verify the statement of the comi>any's iteneral hu.-liiess. 
 The statement of the (Jaii.idian busiii> -- ol a company incorporate I elsewhere than in Canada must 
 in every case hereafter lie leritied by the oath of the ooiniiany's chief apent in Canada- Tliu time 
 fortilinn the annual statements is unchaiiKed, but the penalty in case of default has been changed 
 (sec. 21) from $.")U(I and an additional penalty of .'SlO I a month, to $TU for each ilay during whii.'h the 
 default continues, all such penalties to bo recoveral)le at the suit of Her .Majesty instituted liy the 
 Attorney (lenoral, with the furtlier provision that until such pcmiltics are paid the company's 
 lioenso shall not on e.xpiry be renewed- 
 
 It has been understooii in the department of insurance that the Act in its original form by inipti- 
 oation rei|iiired the chief iiKent in Canada of a company other than a Canadian company to keep at 
 hisollice in Canada a full and complete record of the Canada business of the company, but the Aat 
 did not, in express terms, so provide, and as a consequence the neoessity of keopini; such records was 
 not fully understood and recognized. Now, however, subsections three, four and five of section 
 twenty point out speoilioally what is necessary and what shall be deemed aullioient. .Subsection six 
 
 ; ( 
 
 i t 
 
 mi 
 
702 
 
 INSURANCE LAW OF CANADA. 
 
 20. F'^'ery i'oiii|wiiy incorpDriitotl or IclmH.v formed elscwheri' than in Ciiiiiidit, 
 1111(1 lit present lieensed or liereafter licensed nnder tliis Act, and every cotnpany 
 xvliicli is s\il).ject to tlie provisions of this Vet, shall make annnal statements of its 
 condition and all'airs, at tlie halancinirday of the company in each year, and the form 
 and manner of making sucli statements sliall, as to the Canada hnsiness of such 
 company, l)e the same, so far as applicable, as is re(|uired of Canadian companies, 
 and as to its general l)visiness, sliall lie in such form as sucli company is reipiired by 
 law to furnish to the novernment of the country in wliich its head oHice is situate : 
 and u'hi'iT ftnch company it not reiiidrcil hi/ law to/arnish 11 s/ittrini'til fo fh>' i/ov- 
 ermni'nf of the count rii in which its hcinl office itt situate, then such stntement. as to 
 its general Imsiness. shall he in such form its the conipani/ iisualli/ suhmits fo its 
 memhers or shareholilers, unit, in the erent of no such statement bclni/ suhmitted to 
 such memhers or shareholilers, shall shou- in concise form the assets iniil liahilities 
 of the company at such halancinij ilaij unil the income and e.vpendlture of the com- 
 pany for the year endini/ on such halancini/ day. The blank forms of the state- 
 ments of the Canada business sliall be supplied by the Superintendent.' 
 
 2. Such statements shall, as to the Canada business, be verilied by the oath of 
 the company's chief anent, in Canada, .and as to the ^enei'al business, shall be veri- 
 fied by the oath of the president, vice-president or manaKinj; dir(!ctor and secretary 
 or actuary of the company. 
 
 ;t. Such chief iii/ent shall keep iit his chief iii/eiicy in Caniiilii records and doaii- 
 ments sufficient to enable him to /irepare and furnish the statement of Canada 
 bvsiness in this section provided for, and such that the said statement of Canada 
 business )uay be readily irrijied therefrom ; Provided that in the case of any com- 
 paiii/ liiirlnii in Ciiniidn in addition to such chief ai/eiit one or more j/encral agents 
 reiiortinij to the head ojHce, itnd not fo such chief ai/enf, the reifiiirenienfs of this 
 sniisecfion shall he sufficiently complied irifli by such chief iii/ent kcepini/ on file at 
 the chief ai/ency, In ailillfion to the necessii ry records and documents relatiuji to 
 the business transocteil by ')r through such chief iiiient, annual statements of the 
 business transacted by each .-]uch i/eneral ayevt, duly verijied by the oath of each 
 such i/encral ai/enl. and suc/i addifional records and dociDneiifs triiiismitted 
 th rough the company's head office as shall, la hen together, shoic the company's 
 entire Canadian business. 
 
 t. Till sfateinents of the Itiisiiiess of general iiip iits in flu' ne.cf jireceiling suli- 
 siction provided for. shall lie made up to tlie thirty-lirsf day of December in each 
 i/ea r. and the bill nil forms for such slatements shall, on 11 pplicalioii. he fnrnislied 
 by Ihe Superintendent. 
 
 ."). /)( the case of any company not 11 vailing itself of the proviso eoiitiiineil in 
 subsection three of this section, such subsection sliall be read and. construed icith- 
 out reference to sneli proviso, and as if the said proviso and the subsection next 
 preceding this subsrefion did nut e.risf. 
 
 (i. In even/ case where a coni/iiiny iucor/iovafeit or legiilly formed elseivhere 
 than in Camilla, has heretofore made and tiled iritli the .Minister statements veri- 
 fied under oath, it is hereby declared that such statemenis anil verijical ion were 
 and shall i>e deemed to have been, and to he siillieient icilhin the intent and mean- 
 ing of this .seel ion. 
 
 7. The statements meiiti(med in the iie.xt precedintr section and the statements 
 of Canada business provided for in the (irst subsection of this section shall be de- 
 posited in the otlice of the Superintendent on the lirstday of .Tanuary next following 
 
 of section twenty ik (ieoliiriitiiry .iiui wiis introilnced for tlie piirpiK^o of ciiverintr irrcKularities, or 
 supposed irreRularities, in the veritioiition nl' luiniiul stiilenienls filed prior tu it.« enactment. 
 
 Subsection eight of section twenty extend." to nil life oonipimies doinK business in Canada the 
 provision requiring a preliminiiry ab.«triict of (.'anadian bu.<ines.s, which provision nnder the original 
 Act was applicable only l'> l^anadian companies. The time for the delivery of such preliminary 
 abstract has, moreover, been extended trom the fifteenth day of January to the first day of February. 
 
 1 Infin !>• 718. 
 
DOMINION ENACTMENTS. 
 
 708 
 
 1 
 
 ii^ 
 
 the diitp thereof, or within two months thereafter ; mid every stnteineiit of ijeneral 
 business provided for in tlie said lirst Hul)9ection of this section hIiiiII he deposited in 
 the olliee of the Superintendent within tifteen days after it is n'(|uired hy law to [m' 
 made to Mie jioverninent of the country in wiiich the head olliee of the company 
 whose statement it is, is situate, or within tiftet-n days after the submission of tlie 
 same at the annual meeting of the sliareliolders or members of the eonip my, which- 
 ever (hile (irst occurs: Provided however, that no such statement of general t)U8i- 
 ness need be so deposited earlier than I he first day of May, nor sliall it be so de- 
 posited later than the thirtieth day of June next following the date thereof. The 
 date of a statement in tliis subsection referred to is the date at wliicli the condition 
 and affairs of tlie company are shown. 
 
 S. AllcompfinUti, vkether Cnnnilimi itr ofhi'nrinc, rarrj/iiif/ oii (lie biinitirss of 
 life insiirnnce shall, im or hrforp the first ihiij of Feb run ri/ in each i/rnr, send to 
 thtSiipcrinfenilent a j.^ditninar;/ abstract of the i/rrir's Canada Inisiiiess to the 
 thirttjfirat day of De.rcmbi'r inclusive. Sncli abstract shall contprise the cash 
 premium .receipts of the i/ear, the niimlier «>■'/ amonnt of the policies issned and 
 taken up during the year, the tuimber and amount of policies that are in force at 
 the dale of the abstract, the nundier and ■. mount of the policies that hare become 
 claims during the year, and the numl>er and amount of those that hare liern paid 
 up to the date of the statement, distiniiuishiii'i as to such as are unpaid between 
 those resisted and unresisted. Such preliminary abstracts shall be rerijied in the 
 same manner as the annual statements hereinbefore prodded for ore rei/uired to 
 be rerilied.' 
 
 21. Erery company which makes default in. depositini/ in tin- office of the 
 Superintendeyit the anwuti slatement hereinlnfore provided for, shall incur a pen- 
 alty of ten dollars for each day durinj/ u-hich such default conliuues ; all such 
 penalties shall lie recoverable and enforceable uitli costs at the suit of Hi r Majesfy, 
 instituted by the Attorney (leneral of Canada, and shall when, recovered be applied 
 tou-ards payment of the e.epenses of the ojlirc of' the Superinlendent. 
 
 :i. If such penalties are n.ot paid, the Minisirr, u-ilh the conciirrenre of the 
 Treasury Hoard, may order the lir, use of such com/uiny to Iw suspended or with- 
 drawn a.i is deemed erpedienl, and until such penallies are paid, the license of 
 such company shall not oyi e.cpiry be rcneu-ed,'- 
 
 2ii. K\cry peison wlir) delivers any policy ot insurance, or iiiterini leccipl. or 
 \( lid collects any prcminiii (exc'ept only on policies of life iusiiraricc issued to jicrsons 
 not resident in ("aiiada at (he time of issue), or carries on any liusincss ol insurances 
 on bcli.ilf ul any lite, lire or inland marine insurance company, without sncli license 
 as aloi'csaid, shall, on summary conviction tlicicof, before any two .justices of the 
 peace or any ma;;istiatc lia\ inir the powers of two .justices of the peace, lor a first 
 od'enee, iiiiiir a [KMialty of not less than twenty dollars and costs and not more than 
 tifty dollars and costs, and in default of payment the ofl'ender shall be liable to im- 
 prisonment with or without hard labour for a term of not less than one month nor 
 more than three months; and for a second or any -sitbseiiuent otrence such otreiuler 
 shall be imprisoned with hard labour ruratcrm not less than three months noi' more 
 than six months : 
 
 li. One half of any such |n'iialty when recovered shall lieloii.ulo llcr .Ma.jcsty and 
 the other half thereof to the inl'ormer,- 
 
 ' Ih. - lb. 
 (n tho very recent oa.-'e of (loth v. XiiBle, heiinl l)etbre two miigistriiios at Ciirleton Place, 
 Out., on .^tli Aiirll, 1897, but not yet reporteil, the ilefendant ple.iilcil guilty to havinK delivered, 
 oontriiry to the provisions' of tiiis ..section, ii policy of fire in.-'urancc on !)eliaU' of a company without 
 a license under the Insurance Act of Canada, and wa." convicted anil sentonceil to nay a fine of 
 $20.00 and co.sts, 
 
704 
 
 INSURANCE LAW OF CANADA. 
 
 a;*. All iiiforiimtioii8 or complaints for the pro.secutioii of otreiices under the 
 provisioiiN of sections twenty-two, twenty-five and forty-two of tills A<t shiill be 
 laid or made in writing within one year after the coinmiHsion of the offence. 
 
 24. I'niess otherwise provided in the special Act incorporatiiif? any insurance 
 compimy, i)assed Ity the I'arliiiment of Canada after the t wenty-einhtli day of April, 
 one thousand eiglil hundred and seventy-seven, or hereafter to be passed, such spe- 
 cial Act and all Acts amendintj; the same shall expire and cease to be in force at the 
 expiration of two years from the passing thereof, unless within s\ich two years the 
 company thereby incorporated obtains a license from the Minister under the provi- 
 sions of this Act. 
 
 sffi:iii.NTi-:M)i:N I and his ni'riKs. 
 
 '2Ti. The Governor in Council may appoint an otticer, to be called (he Superin- 
 tendent of Insurance, wlio siiall act under the instructions of the Minister, and shall 
 examine and report to the Minister, from time to time, upon all matters connected 
 with insurance, as carried on by tile several companies licensed to do business in 
 Canada, or re«|uired by this Act to make returns of their affairs ; 
 
 2. Such Superintendent maybe appointed at a salary not exceetliiiK four thou- 
 sand dollars per annum ; 
 
 :i. The tiovernor in Council may, from lime to time, appoint sudi ollicers and 
 clerks under the Superintendent, as are necessary for the purposes of this Act : 
 
 4. The Superintendent siiall keep a record of the several documents i'e()uire<i to 
 be filed by each company in the superior courts of Canada, under this Act ; and 
 shall,- 
 
 (r/.) Kilter in a book, under the heading of each company, the securities deposited 
 on its account witli the Minister, naming in detail the several securities, their par 
 value, and value at whicli they are received us deposit ; 
 
 (6.) In each case, liefore the issue of any new license, or the renewal of any 
 license, make a report to the Minister that the re(|uirements of the law have been 
 complied v.illi, and tliat from the statement of the ad'airs of tlie company it is in a 
 cotidition to meet its liabilities; 
 
 (c.) Keei) a record of the licenses as they are issued ; 
 
 ((/. Visit the liead ottice of eacii company in Canada, at least once in every year, 
 and examine carefully the statements of the conilition and atlairs of each company, 
 as recpiired under this Act, and report thereon to the Minister as to all matters re- 
 quirinLC his attention and decision ; 
 
 <c.) Prepare for the .Minister, from the said statements, an annual report, show- 
 ing tlie full iiarticulars of each company's business, together with an analysis of each 
 >)ranch of insurance, with each company's name ; giving items, classilied from the 
 statements made by each company : 
 
 a. If the Superintendent, after a careful examination into the condition and 
 affairs and business of any company licensed to transact business in Canada, from 
 the annual or other statements ftirnished by such company to the Ministeror for any 
 other cause, deems it necessary and expedient to make a further examination into 
 tlie affairs of such company and so reports to tlie Minister, the Minister may, in his 
 discretion, instruct the Superintendent to visit the oflice of such company, to thor- 
 oughly inspect and examine into all its atfairs. and make all such further in<|uiries as 
 are necessary to ascertain its condition and ability to meet its engagements, and 
 whether it has complied with all the provisions of this Act cpplicable to its trans- 
 actions : 
 
 <i. The otticers or agents of sucli company shall cause their books to lie opened for 
 the inspection of the Superintendent, an<l shall otherwise facilitate such examination 
 so far as it is in their pow-er: and for that purpose the Superintendent may examine 
 under oath the oHicers or agents of such company relative to its business : 
 
 7. A report of all companies so visited by tlie Superintendent shall be entered in 
 
I H 
 
 DOMINION ENACTMENTS. 
 
 (05 
 
 11 book kept fDi'tliut imrposc. with iioti's luiil iiiciiinrandii sliowini; the conilitioii of 
 ciicli coiiiiiany iifler such iiivi'Hti);iiti()ii ; imd ;i spi-rial report sliall Ik? cDiiiiiiiinicgiti-il 
 in wriliiin to the MiiiisliT, stiitiiii^ the Siipcriiiti-iKlcnt's <i|)ini(>ii us to Its MtiiiidiiiK 
 !iii<l IliiJiiu'ial position, lind nil other matters desirahle to he iriade known to the 
 Minister : 
 
 H. If it appears to the SujHrintendent that the assets of any cninpany are insnlll- 
 eient to ju.> iiiy its conlinuaneeof Imsiness uiKh'r the require men Is of seetions seven, 
 ei^ht, nine i iid ten, or that it is unsafe for the puhlir to edeet insurance witli it, he 
 shall make a special rejxirt on the atl'airs of sinh eompiiiiy to the Minister; avd if 
 the Minister, after full consideration of the report, and after a reasonahle time has 
 heen jjiven to the company to lie liearil hy him, and upon sndi further inipiiry and 
 investigation as he sees proper to make, reports to the (iovernor in Council that he 
 afirees with the Superintendent in the opinion so expressed in his report, the (iov- 
 ernor in Council may, if he also concurs in such opinion, suspef i or cai.cel the 
 license of such company ; and such company shall, durinj^such suspension or caii- 
 eellation, he held to he unll<i'nsed, and unauthorized to ilo further husiness : 
 
 !). Every person who, after not ideation of tin- suspension or cancellinti of such 
 license in t he Citnaitii (iiizettr, delivers any policy of insurance, collects any premium 
 or transuets any business of insurance, on hehalf of such company, shall be liable to 
 the penalties pro\ ided for in the t wiMity-second section of this Act : 
 
 10. Once in every five years, or oftentr, at the discretion of the Minister, the 
 Su|)erintendent shall himself value, or ])rocure to be valued under his supervision, 
 tlie Canadian policies of life insurance of all companies licensed under this Act to 
 transact the business of life Insurance in Canada ; and such valuation shall he based 
 on the mortality table of the Institute of Actuaries of Great Hritain. and on a rate 
 of interest at four and one half per centum )>er annum, except in the case of bonus 
 additions or profits accrued or declared before the tweiity-einhth d.ay of April, one 
 thousand eifj;ht hundred and seventy-seven, and then valued on the basis of a rate of 
 ititerest other than that above mentioned, which, in any such valuation, shall eon- 
 linue to he valued on such other basis : 
 
 11. The Minister may, from time to time, instruct the Snperiiitcndenl to vi-it 
 the head ollice of atiy company licensed under this Act anil incorporated or lenally 
 forniod elsewhere than in Canada, and tf) examine into the (general condition and 
 all'airs of such company ; and if such company declines to permit such exaniinal ion, 
 or refuses to ^ive any information necessary for such purpose, in its possession (U- 
 conlrol, it-- license shall be withdrawn r 
 
 12. Every company now licensed, an<l every company hereafter licensed under 
 this Act, and every company transacting life Insurance business under the thirty- 
 second section of this Act, shall annually contribute a sum in proportion to the 
 >rross premiums received by it in ('anada during the previous year, towards defray- 
 ing the expenses of the ollice of the Superintendent :— which sum shall be paid upon 
 the deinand of the Superinteiident : 
 
 l.'i. The sum to be contributed annually by companies carryintc on the business 
 of lire or inland nu.rine insurance in respect exclusively of such business carried on 
 by them shall not exceed in all einht thousand dollars: 
 
 II. The Suiierinteiident, or any ollicer or clerk under him, shall not, directly or 
 inilirectly, be interested as a shareholder in any ius\uance company doin^ business 
 in Canada, or license<i under this Act : 
 
 1"). The Minister shall lay the Superintendent's annual report before Parliament 
 within thirty days after the commencement of each session thereof. 
 
 "!i\. For t/if /)}n-j)Of<c i>f ciim/hi!/ oiil t/ii- proii.iions of Ihix Act, the Stipvri ii- 
 tcndviit I)/ Insitruiici' /.v licrcbn (KiHntrixcd tin'l eiiijioirered to uddns.s tiny hii/iilriin 
 to any iiisiiraxif ruin/iiDiicn /iniiKi •! inider t/ii.t Act, or to tlic jiri'sidriit. innrwdtr, 
 iictiifiry or seci<t((ry tlitrtof in rvlut'on to its ((.sw/.s-. ini'Cfitnient.i, lidhiliticn, doings 
 or condit ions, or iiny otlu r matter cuniiccted with its business ur tr(tnsactions, and 
 
 45 
 
WW' 
 
 i 
 
 is I 
 
 70(i 
 
 INSURANCK LAW OF CANADA. 
 
 il s/i't/l hr llir iliih/ of (I III/ '•(iiii/ifiiu/ so iiilil rrsftiil In priiiii jillji n/ili/ in irritiiii/ In 
 mil/ siicli iiK/iiirii'n.' 
 
 I'ltovisiuNs i{i:i,AiiN(i ID r.ii'i: in^iiian( i;. 
 
 20. 'Pile provisions of HL't;! ions Iwniilysi'.vcii Id foilyljirci' Iticluslvc apply only 
 lo lifu insurance conipiinics itnil to ol.hiT insiiriiMi(! companies currying on life uml 
 other inHuraiiuc, only in so far as relates l,o the life Insurance l)u--in(!ss of such <iini 
 panics. 
 
 C'OMII I'KINH ON I'OI.IIICS. 
 
 27, No condition, st ipulal ion or proviso uiodifyiiiK r)r iinpairinjj; I he elVect of anv 
 policy or ceil iticale of life insurance issneil after the llisl day of .laiiu.iiy, one thou 
 Hand elKht hundred and einlily six, liy any company doinn hiisiness uitliin (lanada 
 under the authority of I he I'arliauient of Canada shall he ^ood or valid unless sucdi 
 condition, stipulation or proviso is set out in full on the face or hack of the pr)licy. 
 
 UH. No policy or cert illcate shall contain or have (■lulorscd upon it any condition 
 providiiiK that such policy or coitillcate shall he avoided liy reason of any statement 
 contained iii the, application therefor lieiiiK mit rui-. unless su(di condition is limited 
 to cases ill whiidi such statement is material to the conlract. 
 
 UHa. M'li're hi iini/ ronlrdcl of lift Insitrinici' eiili'ml info irltli inii/ roni/iiiiii/ 
 /li'ftimil to rtirri/ on hiiHinin.i In (.'(iiimlii iinilir lliv /irorlsioiin of llii.i Ail, Hir iii/i' of 
 t/ii' jirrsitii. irhoHi' lifi' in insiiml iHi/ivin irroiu diisIi/ In ii in/ sidlfnitnl or irn rrnnli/ 
 inililr fur llir /in r/iosiH of llii' runlriii', snrli ronlriirl slmll nul In- iiiolilnl hi/ niisoii 
 (mil/ of llir <ii/<- liiliii/ olliiT llion iis nhiliil or iriirni nlid. If II o/i/inirn llnil siirli 
 sliihinrnl or iiuirriinli/ inix nnnlr in. f/iioil fiiilli iiiiil irllliiinl iiiii/ I iilrnlion In 
 ilifiiir ; hill III!' '/tirsiin inllllnl lo ririirrr on. .iiirli ronlriirl .hIiiiII mil hr i nlillril lo 
 rrrnrrr inorr lliiin iiii iiinniiiil irlilrli hnir.t llir .iiiiiir rilllii In llir sum lliiil siirli /irr- 
 son. il^oiilfl ollirrirlsr hr rn/lllril In rrrnrrr its llir /irriiil ii.in /o'n/irr In llir slnlrtl iif/r 
 of Mli.rll /irrsiin hrnrs In Hir /irriniii in /irn/irr In llir iirliiiil iii/r i>f siirli /irrsnn, llir 
 nlillril ili/r mill llir iirliiiil iii/r liri ii{/ holli lilL'rii lis ill llir iliilr nf llir rnnlrnrl ; hiil In 
 no riisr nliiill flir iininii nl rrrrlriihir r.rrrril llii mniiii ill sliilnl or Iniliriilnl In lln 
 rnnlrnrl.'' 
 
 ■J. l''or the purposes iif this suliseclion the woid ■■premium" means the iiel 
 aiilillal premium ralculaled on llie liasis preserihed ,y this Act. 
 
 (The amendiun Act pro\ ides thai this section shall apply to coiilr.icis of life 
 iiisuranci' existiii);r at I lu' I imr of I he pa>siu(^ of the Act. :i:lrd .Inly, Is.sj, or I In !■(• 
 after enlered intol. 
 
 Fnrfrllnri iiml Urnfiriil nf l.irriisrs. 
 
 '2\i. W'heiii'ver sal i -r.-iiiory proof lias lii'i'ii furnished lo the Minislcrol aii> iin 
 dlspui ed claim upon a compiuiy. .irisin;^ on any policy of llle insuraiwi' in Canada, 
 rem lining unpaid for llii' ^pace of sixty days after liecomiMH iliie, or ol a disputed 
 claim re 11 lain in;.; unpaid after liiial judL^nient in a regular course (d' l.i w and tender 
 of a h'Hal vjiiid di'-"hari;i' made lo tlw a(.;ent of sindi i'omp;iiiy, llie Miniler may 
 wit hdraw I III' license of such company. 
 
 ' .SiMM.inn '.!'>» in new. Itri |ir"vi''iii!i« :iri' alin'i:<l i(l"iilii'iil willi iIiuhc I'liiiliiiTjcil in :i »iiiiiliir 
 sliiliili! ill fiiri'e ill HkiSIiiIi' cif ,\i'w ^ nrk , iiiid it in lii-lii'ViMJ Ijii.y will pnive iiHidill iiml will fiialilo 
 Hill .Sii|iiiriiiliiiii|iiiii III i^k, willi'itit liiiliilily iif rid'iiiiil. iiiiinirliinl |i:irli<'iiliii'.'< :iii'l liifiiriii.ili'iii nut 
 liilliorl" in all fiiisto.H iiviiilalilii. 
 
 -' 'I'lio iiriivi.'<iciii!i of Hnnliiiii 2.S\ iin- ;ilni'ifl i'li'iilii-iil willi lliiiHOdf 'he Unhirifi ."himic immjii iIks 
 
 4111110 Kidijiint. (.'iisiiH urn nul iinl<nnwn wlier iiii>;inii^f> hiive diiiiii"! nil linliilily iiielor |ii)li.'i(',< in 
 
 the ii|i|iliiv'i.tiiiii for wlileli llin ukk liii" lliniiiidi iiiiulviTlenaii lu'cii iniini'invitulv ^lalml, iliniiidi Imji- 
 
 liilv Hindi lllHll,^ aril riiri', it viir.v InrKu iniijoril.v nl ii|iii,iii(',» dciiliiiK i'i|iiiiiil,ly willi llioir iMilii'.y- 
 
 lioldurn iinilor lliu nniidiliniiH providud Inr in Itiii Hcclinii, 
 
f^l'"!? 
 
 DOMINION KNACTMENT8. 
 
 707 
 
 IImi-c 
 
 II.V Ull 
 lll.'lll,'!. 
 
 -Illlll'll 
 
 ■lIlllT 
 
 iri.iy 
 
 tini;ir 
 I'lialili) 
 ion iiul 
 
 ;iO. Siicli liiTMM' inity III' I'i'iicwimI if uilhiii lliirly ilayw ul'l.cr .-^iicli u il Inlrfiw.-il 
 such uii<lis|mli'cl cljiiriis or liiiiU judKinriit s upiiii <pr iiu'iinsl I he cuiiiii.'iiiy arc ii.'iiil iind 
 Hiilislicd. 
 
 ;{|. When llii'liccM>c of a coiiipiuiy ciiiryiiiy; urilhc luisiiicss nl life iusuraiicc 
 has liiM'ii wit hdiawii liy I he Miiiislci' under any of I hc^ furi'^oiut; scci Idus <il' I his Act , 
 such license' uiay hi' leuewed if, wil lilii I liirty days after such wll lidiawal, such coui 
 pauv COUI plies will) the re(|uirellieii|s of I his Act In file sal islael inn of I he Mill inter. 
 
 ( 'oitt/ttmicH ('rtfslHt/ In lilt Hlfsi llrss (tiitf liilnl^tf nt' I >i'jntHitn. 
 
 :i'J. Ill I he ciise of any eoiiil y which, previously lollii' I weiily ci;i:lilh d;iy of 
 
 April, ill the year one thousand einhl liuudred and seveiil y seven, was licensi'd lo 
 tiansacl the Imsiiiess of life insurance in ('aiiada, and which eea-icd to I raiisacl such 
 Imsiness liefore I he thirty tirst day of March, one thousand eij;lil hundri'd and 
 .seventy ei^ht, hiiviiiK lie fun; that, date nivn written notice to that ell'ect, to the Min- 
 ist.er, I he preiniuins ihn- or to liecoine diii- on policicH act ually issued hefore t he last 
 ineiit ioiied date, may cont iniic to he collci!ted, and the claims arixiuK f hereon may he 
 paid, .iiid all husiiiess appertainiiiK therelomay lie transacted, and all proceedings 
 app.'ilainiin; t heii'io, (liMier .'it law oi' in c(|uily, may he continued or commenied 
 anil prosecuted: and Ihedepmil at present in the hands of ihe .Minister shall he 
 dealt with under the law as it exisfed previously to the llrsi menfiimed date, as if 
 I his Act had iiol lieeii passi'd.' 
 
 :$;{. When any company licensed under this Act desires to discontinue Imsiness 
 and to have its assets in Canada released, and nivcs written notice to lliiil cll'ect, to 
 the .Minister, it may, willi the consent of the policy holders, procure the transfer of 
 Its outstanding iiollcies in Canada lo some companv or lonipanies liceiiseil under 
 this Act. in (I.inad.i, or may ohl.iin the siiriender of the policies, as hir as is prac 
 ticilile : 
 
 ■1. The I riislecs nia,y employ any port inn of I he asset h \ r^si ci| in t hini lor the pur 
 pose of etl'eit inn suih t ransler or surrender : 
 
 :i, 'I'he company shall llle willi Ihe .Miiiist(tr /i lisi of all Canadian policy holders 
 w liosi' piilieies have heeii so transferied or have lieeii surrendered, .iml jiKo a list of 
 those which have not heiui tra,nsferrcd or suricndered : 
 
 I. The riiiiip.iny -li.ill, .at Ihe same time, pnolish in the ('niiinlii (iii-illi- a notice, 
 t hat il will apply to t he Minister for a. release of its asset s and seeiiril ies on a certain 
 da\ not less than t luce iiioiit lis after the dati'of the not ice. ain! c.'ijlin^ iipmi ils 
 ( 'an;id lan policy holders oppo-.iiiif such release to lili' I heir o|ipiisil inn with the .Min 
 i-.ier on or liefore I he (lav so named : 
 
 .">. \ fter t hilt d.iy, upon t he applirMt ion for release licin;f made, if I he M iiiister, 
 uilhlhi' eoiiciirreiici' of t he 'I'l-casiiry Ho.ird, issatislled that such t ransfcr or siir 
 r'ender has heen elleiied. he may direct, that ii porti<iuof the assets held liy the 
 I rustei's, or sceuril ies held liy the .Minister, shall lie retained, siilllcicnt in ainonnl lo 
 cover I he full iM|iiilahlc lei .uiri'iider value nl sinh puliiic ~ i iiii ludiiiL^ lioniis addi 
 I ions anil accrued piolii si, as have not hecii I i.insfeircil or ^ in leudereil, or in respect 
 to which opposil inn his liccn lllid. .11 id m.i> nrdi'r Ihe rcinainiirj assets or seen rit ies 
 afnresaiil to he rcle.iseil and t ran^feri'cd or p.aid over lo I he ennipaiiy : 
 
 (1. 'I'he port ion retained shall hetendercd in t he manner hereinafter descnlied in 
 the ,1 foref.il id policy holders inn iitlii, accorilin>{ to the iiforesaid values of their 
 respect ive policies : and on I he iiceeptanci' of the amount so leiidercil. such policies 
 shiill I lierehy lie deeuieil lo he cancelled ; hut If such Inidcr is refused liv iiii v pulley. 
 Iinlder, Iheamoiiiil so I endei-ed ni;iv he paid over tnllie eninpiiny. a lid I lie p'llicy 
 shiill eniitiniie in tnree : iiml such policy holder shall mil hi' h.irrcd rrniii ;iny rci-nurse 
 
 I .'^('(1 li'llia- t nun lie .Mini<tiu- nf .lii-licis iliili^il Olhovii, ITlli Dnri'iiilier, |s'.i|, i.i iliii .Si'i'ichiry of 
 thi) '!'ri'!i.itirv llniinl, m n lliiiini'i'lii'iil iMithnil iiilc Iiih. I'n., iin rrprnilin'iMl in (Im Ili'purl nf Hid 
 Hiiiii'riiilianlimt nf liiKiiriun'ii (bHI, |i. xx.xvii). 
 
708 
 
 INSURANCE LAW OF CANADA. 
 
 lie liiis. I'ithfr in law or ineipiity, against thccompaiiy touonipel the fulHlmeiit of its 
 contraLt uikUt sucli policy : 
 
 7. 'Pile surrender valurN aliove mentioned shall be <lcterriiined liy the Sniierin- 
 tendent on v:l:w; hasis state<l in the tweiity-liftli section of this Aet, and he shall col- 
 lect from the company the expenses of such valuation at the rate of three cents for 
 each policy or hoiius addition and shall pay the same to the ^Minister before the lat- 
 ter sliall liand over the securities : 
 
 8. Nolhiiii; lierein contained shall prevent any policy-holder from makiiifi; sjii'cial 
 arrangements will) the company whereby his jiolicy may be eontiimed in force; and, 
 on iji'odf beiiijj: Ki^'"'i of such arraiiRement, such policy may be omitted or removeil 
 from the aliove mentioned lists of policies, and this Act shall thereafter not apply iii 
 respect of such jiolicy. 
 
 ;J4. The tender referred to in the next precedinj:; section shall be made in the fol- 
 lowing; manner :— 
 
 (a.) A list and notice in the form D in the schedule to this Act, or to the like 
 ell'ect, shall be published in the Cawiild (i'(i,-fftr for at least thirty days previously to 
 the day named in such notice ; 
 
 (b.) The eoinpany shall also cause the said list and notice to be published in such 
 newspajiers in Canada and for such length of time as the Minister determines ; 
 
 (c.) A notice in the form K in the schedule to this Act, or to the like efl'ect, shall 
 be sent by mail (jiostiiaid or franked* from the oHice of the Superintendent to each of 
 the policy hohlers named in the said list, whose addi'ess is known to him, and such 
 notice shall be deposited in some postoHice in Canada at least thirty days jireviously 
 to the day named therein, which shall be the same day as that named in the list and 
 notice above nientioiied ; 
 
 (f/.) Any i)olicy-liolder who does not sifrnify in writinij; to the Superintendent his 
 acceptance of the amount so tendered, on or before the day named in the said notice, 
 shall he deemed to have ri'fused the same ; but the Minister may. at any time prior 
 to the iiayment over to the company of the amount so refused, allow any policy- 
 holder to signify his acceiilance of such amount, which acceptance, so allowed, 
 shall have the same ellect as if made on or before the day named in the said notice. 
 
 2. Ill tliia anil the iic.vt prccedhuj .section tlie irord ' policiz-fioldcr' iiiiiiiis llie 
 pi'VHon towlioin tlic polln/is insiieil anif irit/i irliom t/ii; rontrnit J'ov imsiiranri' is 
 iiiiuli', and iiK hides the ansifpiee o/sxirh person.^ 
 
 ;I5. In coi iputiiiK or estimatinii the reserve necessary to be held in order to 
 cover its liability to policy-holders in Canada, each company may employ any of the 
 standard tables of mortality as used by it in the construction of its tables, but there 
 shall he set apart and credited to such reserve in each yearoul of the interest earned 
 in the year, a sum ecpial to four and one-half per cent, per annum on the amount of 
 the rcsi'i've as at the end of the precediiiK year, together with such further additions 
 from jireniinins received duriim the year, if any, as shall lie necessary to brinn the 
 reserve up to the standard provided by subsection ten of section twenty-live of this 
 Act ; hut if it appears to the Suiierintendent that the reserve as computed by the 
 company falls below that above provided for, he shall report the same to the Minis- 
 ter, \iiio may thereupon direct the .Superintendent to compute, in- to iirocure to be 
 computed iindei- his supervision, the reserve on the basis therein mentioned, and the 
 amount so computed, if it dillers materially from the lelurn made by the company, 
 may be substituted in the annual slaleinent of assets and liabililies; and in such 
 case the coni])any shall furnish to the Superintendent, on application, the full par- 
 ticulars of each of its policies necessary for such computation, and shall pay to the 
 Superintendent an amount at the rate of three cents for each policy or bonus addi- 
 tion so computed, which amount he shall pay over to the Minister. 
 
 ' The object of PubBcotion two ndded to flection thirty-four is to remove im oxistim? doubt w to 
 the |ier«oD iiitoiided by the cxiitession " tmlicy-holdor" in timt and the ne.\t preceding section. 
 
mmm 
 
 DOMINION ENACTMENTS. 
 
 709 
 
 ■J.. Any I'oiupany iusioail of itself computing or estimating t lie reserve above 
 niciicioned, may require tlio .same to bo computed by the Superintendent on the basis 
 stated in the twenty tifth sect ion of this Act, on payment of a like amount as is men- 
 tioned in the next preceding subsection : 
 
 :i. Provided always, that in the case of any bonus addition or other prolitson the 
 policies of any company, accrued or <leclarod before the twenty-eighth day of April, 
 one thousand eight lunidred and seventy seven, and which have been heretofore 
 valued on the basis of a rate of interest other than that above mentioned, such com- 
 pany may coinjiute or have the same computed on sucli other basis: and provided 
 also, that in the case of any company which has heretofore based its compulation or 
 estimate of its reserve necessary to cover its liability to i)olicy-liolders in Canada 
 (other than the reserve to cover the bonus additions or other profits in the last jiro- 
 viso mentioned) on a rate of interest of live per centum per annum, the basis or com- 
 pulation or estimate mentioned in the twenty-lifth section and in this section, shall 
 not ai)ply until the twenty-eighth (hiy of April, one thousand eight hundred and 
 eighty seven, but such company may, until such date, compute such reserve, or 
 have the same computed, at a rate of interest not exceeding Hve per centum per 
 annum. 
 
 Ml-rf.M, Otl ASSKSSMI'INT I.IFK r.\St'R.\.X(K COMI'.VNI tCS. 
 
 ;J«. No company shall carry on witliin Canada any t)Usiness of life insurance 
 by promising to pay on the death of a member of such company, a sum of money 
 solely from the proceeds of assessments or diu^s collected or to be collected from the 
 members thereof for thati)urpose without being licensed or registered under this 
 Act, exce])t that, in the case of any contract entered into, or any certificate of mem- 
 bershij) or policy of insurance issueil befoi-e the t went ieth day of .Inly, one thousand 
 eight hundred and eighty-live, by any company carrying on such business, assess- 
 inenls may be made and coUectiul, and claims paid, and all business connected 
 therewith transacted without any penalty l)eing incurred. 
 
 ;17. Any company incor|)(irate(l or legally formed within Canada which transacts 
 l)usiness of the nat\ire desciibed in the next preceding section may, at the discretion 
 of the Minister, on report of the Superintemlcnt approved by the Treasury Hoard, be 
 exempted from the operation of the foregoing provisions of this Act, except rho.se of 
 sections twenty-live, twenty-seven, twenty-eight, twenty-nine, tliirtyand thirty-one, 
 and be pi'rmilled to transact the business of life insurance' on tin- conditions speci- 
 lied in the live sections next following. 
 
 JI8, Companies tobes'i exempted shall register their titles or corporate names 
 in the ollice of the Superintendent ; they shall also make attested returns of iheir 
 condition and alVairs at such times and in such form, and attested in such manner, 
 as are prescribed by the .Minister-, and the Superintendent shall imlude snili returns 
 in his annual rei)orl ; ami any failure to make such returns, when calleil f(U- by the 
 Sui)erint<'iideiit, shall sui>Ject such company, and any ollicer thereof, In thi' penalties 
 nuMitioneil in the Iwenty-lirst section of this Act : 
 
 i. The registration of any such company shall cease to be valid on I he thirty lirvt 
 day of .March in each ye.ir, but shall be renewable from year to year, in the discre- 
 tion of the Minister. 
 
 ;J1). The provisions of this section shall apply to corporations or assoiiaiinns 
 iin'orporated or legally formed elsewhere than in Canada lor the purpose of cariying 
 on the busiru'ss of life insurance upon the cn-operalive or assessfncnt plan ; 
 
 \i. .\ny s\uh coiporalion or associiticni m.iy be licensed by the Minister, uiicler 
 the provisions of this Act, to transa<'t business in t'tuiada upon depositing \\ It li him 
 fifty t honsand dollais, and thereafter shall ha\i' the i'i>iht to transact business so 
 long as it continues to pay its losses Id t he full limil nanie<l in its cert illcates or poll 
 cies, ami has complied with all t he reiinireuienis of this .Vet ,ind nf th<' .'superintendenl 
 of Insuraiu'C : 
 
 4 
 
710 
 
 INSURANCE LAW OF CANADA. 
 
 :). In addition to sncli di'ijosit of fifty tliousand dollars, the Minister, upon the 
 report of llie Siiix'rintendent, approved liy tlie Treasiii-y Hoard, may, from time to 
 time, rei|uire sueli other and furtlier deposit as is recommended in such report and 
 so approved, to be made by sncli companies or deposited witli truste(>s to he named 
 by the Minister, upon such trusts as are determined by tlie Uovernor in Council : 
 
 4. Death claims shall be a tirst cliarj^c on all moneys realized from assessments, 
 and no deduction sliall be made from any such death claims on any account whatso- 
 ever : 
 
 "). Xo |)ortion of any moneys received from assessments for death claims shall he 
 used for any e.\])ense whatever ; and every notice of any assessments shall truly spe- 
 cify the cause and purpose thereof: 
 
 (i. Every application, policy and certilicate, issued or used by any such company 
 in Canada, shall have printed thereon in a conspicuous place, in ink of a colour dif- 
 ferent from that of the ink used in the instrument, and in good-sized type, the fol 
 losving words : 
 
 •'This ass<icialion is not re(|uired by law to maintain the reserve which is re- 
 quired of ordinary life insurance companies'' : 
 
 7. I'^very certilicate and poli<y shall contain a i)romise to pay the whole amount 
 therein mentioned, out of the death fund of the association and out of any moneys 
 realized from assessments to be made for that purpose, and every such association 
 8hall be bound forthwith and from time to time, to make a>-sessmenls to an a'liount 
 ade(|uate with Its other available fumls, to pay all obligations created under any 
 such certilicate or i)olicy witlioul deduction or abatement : 
 
 5. 'I'lie condition embodied in the next pi'eeediiiK subsection shall be inserted in 
 every policy or certilicate issued or delivei'ed l)y any s\nh company to any ])erson 
 insured in Canada : 
 
 !). In every policy issued by a company licensed in accordance with lliis section 
 of this Act in favor of a resident of Canada, a clause shall either be embodied therein 
 or endorsed thereon, to the ell'ect that an action to enforce the obligation of such 
 policy may be validly taken into any court of comi)etent .jurisdict ion in the province 
 wherein the policyhoUler resides tn- last resided before his decease, and such jiolicy 
 shall not contain any provision inconsistent with such clause. 
 
 I(t. Xo ci)iii/)((iif/ ir/iic/i Ix <i ufliiifi::<fl lit iismin' or iissiitrn to uni/ of i/s inriiilnrn 
 II ci'rfiiiii annuHji, lifliir hiinii'iliiifi- or ihjrrri'il. irlietliir for fi'fr or for ii term of 
 1/riirs, or inii/ iniloirmriit irliiilrrrr. .s/iiill l>i rlii/lli/r for liniisr iis ini ii.-i.iissiiinit 
 ronipiiiiy iniiler tltr forri/ouKj prorlalon^ oj' l/iis Art. 
 
 II. Xo company shnll tw ilij/ililr for /icensr iis iin nnseKSiiieiif roni/inin/ : ' 
 
 ^||.) If II iH'ir compnnii, until ii lias rrveirril iit Iriist Jin liunilri'il iipplinilioiis 
 for ini'nilier.sliip riillini/ for an iiuioiiiil of insnriiurr not Iras l/iiin lirr hiinilnil 
 tliouaii ml iliilliirs, llir prornrinii iif nlilrli iiji/iliriilion.s sliiill not In ilniiiril n riolii- 
 tioii of III r /trorislons of snilon lirrnli/liro oi' this All ; nr 
 
 ill.) If II roinjtiiiiji iilmiilji iiii/iii/ril in biixinrHn, inilisn in liiin iil liiisl lirr liiin- 
 {Iriil ininihrr.s or poliri/liiilili'r.i holili nij poliriea for ill leiisl llie .iiini ofjirr liiinilreil 
 t/ioiimi ml iliilliirs. 
 
 to. 'I'lie i)rovisions contained in subsectio?is f<inr, live, six. si-ven, elRht, ten and 
 eleven of the next preceding section shall also apply to any company (not beini; ~uih 
 a company, society or association, as is rebM-red to in section forty three of this Act) 
 
 ' !«'ubaoctions ton and eleven, wincli iiiive lieen leldcil to scetion tliiriy-nine linvo reference to 
 life onmiianii'? wliieli do tmsincss uri the iiMsessnienl plan. The fir.-t iif tlic.ie, siibfcclion ten, ex- 
 plieilly prciviiios liint a enmpiin.v :iutlioriy.('c| to tnuism't annuity or enduwmi nl business shall not ho 
 cliiiihle for reifintnition a<< an assessment eoni|iaiiy, such liranches nt' huaine«s lieinn admitt il, by 
 coinpelont ii\ilhorilie.i on assessauni insurance, lo be un.'iuilahle to e'Mnpanies uf that elai^'^. Siih- 
 fCetioii eleven iii ellVcl provides that an asscssnionl ?oeie;y -hall n'lt einnincnee busine.s.s initil n 
 con,iiiilerahle nienihershlp has been assured to it. The importance of such a provi,«ii)n, havinn 
 'egard to the iiatiiro of tho busine.ss, is solfevident. 
 
DOMINION ENACTMENTS. 
 
 711 
 
 ,fi 
 
 'l A 
 
 inccirporaltMl ii\ Canada and carrying on the hu.sinfss of life hnnranco ujjon I hi' co- 
 openitis'o oi- assessment |)hin. 
 
 41. 'I'he words "assessment system" shall he prnited in Iar.i;e type at the head 
 of every jjoliey and every a|)plieatlon for the same, and also In every eircular and 
 advertisement Issned or nsed in Canaila in eonneetion with the hnsiness of a com- 
 jiany to whieh any of the provisions of the live sections next preceding apply. 
 
 ■12. ICvery director, manager, iigent or other ollicer of any such company as is 
 hereinhefore lastly nu-nt loncd, which carries on business without being licensed or 
 registered ; and 
 
 {!).) Kvcry person wlio transacts any business of insurance on behalf of any such 
 company which so carries on business, without being registered or licensed : and 
 
 (c.) Kvery such company which neglects to print Ihi' words "assessment system"' 
 as jirovided by the next preceding section ; and 
 
 ((I.) Kvery director, manager, agent or otlicr olllcei' <)f such company and every 
 other person who transacts business on behalf of any such con\pany ami win) circu- 
 lates or uses any application, policy, certltlcale, ciriiilar m- adveitlsement ou which 
 the Words "assessment system" are not printed as liereinh(;fore provided, shall be 
 liable to the i)eualtles mentioned In the twenty-second section of this Act. 
 
 4.'{. Nothing contained in this Act shall ap))ly to any society or association of 
 persons for fraternal, benevolent, industrial or religious ])uiposes, among which pur- 
 poses Is the insurance of the lives of the members thereof exclusively; or to any 
 association for the purpo:Je of life insurance formed in connection with such society 
 or organization and exclusively from its members, and which Insures the lives of 
 such members exclusively : 
 
 li. Any society or association which is declared liy this section to be exemiit 
 from the application of thi.s Act, may, nevertheless, a)iply to the Minister to be 
 allowed to avail Itself of the provisions of the seven sections next preceding, and 
 npmi such .ippllcatliiu being assented to, such society or assocl.-itlon shall cease to be 
 so excn.pl by \lrlue of this section.' 
 
 r'KOVI.SIONS HlilAlINC TO I'llii: \MI INI. AM) MAIilNl: IN-^IHA.M 1). 
 
 II. The provisions of sect Ions forty li\e to forty clgl" Inclusive, apply only to 
 lire and Inland mai'Itu' Insuranci.' companies and to olh'r insurance companies 
 cai'rving on tire and other Insuraiu'e or inlaml marliu- and other Insurance. In so far 
 as relates to the lire or in l.ind marine Insurance business of such cou) panics. 
 
 Fiirhllii re mill h'l ikh'ii/ nf l.irinsis. 
 
 \~t. Wliemncr any company fails to make the dej)oslts under this .\il at the 
 time re(|uireil, or whenever «rlllen notice has been served on the .Mlnistei' of .iTiy 
 undisputed claim arising from lo^s in-nn'd against In Canada renuiinlng unp.ilil for 
 the space of sixty ilajs aft el' it becomi' . due, or x'i a disputed claim remaining un- 
 paid after llnal . judgment in a regular co\irsf of lav\ and tender id a legal valid (lis 
 charge, the license of such company uia\ be \\ llhilrawo by the .Minister. 
 
 ■I<(. Such license maybe I'eucw ■ d. .uid the company may aualn liausacl busi- 
 ness, If, wit hi u sKl V d;i\ s after not Ice lo I he .Minister of t he failure of I he '■ompany 
 to |>ay any uudlspntcd claim, or the .■uuonni of any llnal Jnd'/uu'nt as provided In 
 the next pi'cci ding section, undisputed clulm-. (U- llnal Judgments upon or against 
 t he companv In ( '.'inada ,n-c paid and -atlslied. 
 
 ' See Kc'Kiiiii v. .^(iii'lelnn, ih/.'-.i § § 'Jil ,V 3.'n, pii. Ci ,V f'.'i.'i ; luid Idlers frciin llio I)c|nily .Mliji.^lpr 
 of.Tuslico anil llic .Sii|icrlnteinliinl mI rri.^iininoe, iliifni Olniwii.Hih miil l.")tli .liuiiiiuy. lH.SIl,'.','lh .Inly, 
 hlin, Till .biiiiiiuy, li-'il, Mild I'.'lli Miiv, l.tH. rivpeolivoly, in ri. " i)(l,ltVlliiw.«' Friil. .Ace. /Vss. iif 
 Aiiierioii," " CoveniMit Met. Itcnclit Assi. nl Illinuiii." " Ni)r'li\voii|urn Mii.i. Aid Ass.," " I'ref. ,\I is. 
 Milt. ViH'. Ass. of Anu'iML-ii, ' iinil tliu "l'..S. ,\l:ifl, iionin-. .\sn. of ("iiiiin'il llUilis, lowiii" ns repro- 
 ilueed in tlie Keimrt ii; tliu Siiporinlpniknt nf F iBiiriiiii'o (ISDl .) Sen also fuol mile iniKi' 'ii,»i'//i'i. 
 
 ' If '11 
 
 i I 
 
 A 
 
71: 
 
 INSURANCE LAW OF CANADA. 
 
 Companies Ccdm'iu/ to dn liusinrss a nil Release of Deposit n. 
 
 47. W'lieii any conipiny lias ceasud to (raiisai-t l)n-.in('ss in Canada, and has 
 giviMi written notice to that eH'ect to the .Miriislcr, it sliall insure, on belialf of its 
 Canadian policy-holders, all its outstanding risks, in some company or companies 
 licensed in Canada, or obtain the surrender of the policies; and its securities shall 
 not he delivered to the company until the same is done to the satisfaction of the 
 Minisler : 
 
 '1. Ujjon making application for its securities, the company shall tile with the 
 Minister a list of all Canadian policyholders who have not been so reinsured, or "ho 
 have not surrendered their policies; and it shall at the same time jiublish in the 
 Camtdii Gazette a. notice thai it has ai)plied to the .Minister for the release of its 
 sccuriti's on a certain day, not less than three months after the date of the nolice 
 and callinij; ui)on its Canadian jiolioy-holders oppoing such release to llle their opjjo- 
 sition with the .Minister on or before the day so named; and after that day, if the 
 Minister, with the concuiriMice of the Treasury Hoard, is satlslied that the comiiany 
 has am|)le assets to meet its liabilities to I'.iiiidian i)olicyholders, he may order 
 thai all Ihe securities be released to it or that a sulHcient an\i>unt of them here 
 tallied to cover Ihe value of all risks outstanding or respecting which uiiposition has 
 been tiled, and that the remainder be released ; and therefore, from tiini! to time, as 
 such risks laiise, or j'.roof is adduced that they have been satislied, further amoiinis 
 may be released on the authority aforesaid.' 
 
 .\. When a company has ceased to transact business in Canada after the notice 
 hereby re(|iiired, ami lis license has in conseciueiice been withdrawn, such company 
 may. nevertheless, |)ay the losses arising upon policies not reinsured or surrendered, 
 as if such license had not been withdrawn. 
 
 I'liti-; roi.iciKs. 
 
 +**. Xo tire policy shall be issued for or extend over a longer [leriod Ihan three 
 years. 
 
 i.vsi'u.wii-: uriiHii riiw i.ii-K, iihk oh inland makink. 
 
 -I1>. Xo comiiany or person shall issue any policy other than a life, lire, or inland 
 marine insurance iiolicy, or receive any premium in respect thereof, or carry on any 
 business of insurance other than life, lire, or inland mirine insur.mce, without lirst 
 obtaining ii /leeiise from Ihe Minister to carry on such business in Canada ; the 
 Treasury Hoard shall determine in each case what deposit shall be rei|uired lo be 
 made with Ihe Miuisier, and Ihe seel ions of this Act which shall apply to such com- 
 pany or person.'^ 
 
 'J. The Treasury Hoard, iiiiou the report of the Superintendent, may revoke any 
 such license if sullicieni cause theii'for be shown by such report. 
 
 :t. .\ny person receiving such license shall make aniiuiil statements under oath 
 of such business at the same time and in the same foi'in and manner as a conipaiiy 
 Iransacliug the same business would under the provisions ot' this .Vrl be rei|uired lo 
 make the same. 
 
 -I. The Suiierinteudent shall li.ive Ihe same powers with regard to a [lerson re 
 ceiving a license as an^ conferred on him by the Act with regard to insurance com- 
 panies, and .such pei'.son shall eonti'ibute towards the expenses of the oltlce of the 
 
 ' Proceedings for the relci.fe of the iloposits iiii lor seolion forfy-^evoii li:ivo lioen shorteneil, 
 only llie ooncurrenoo nf tlu' Treasury lioard lieini? now re.i'iireil, tliiit of the (iovoriior (ioneriil in 
 Council being lu'rciifter ininooossiiry 
 
 ' liiider llio forty-nintli fcotion, us iinicnded. ii lleonsu is necessary in every cii.sc ooveieil tlu'ie- 
 liy, anil such deposit iis the Treiisury Hoitid sliill ilutcrmino must )) • miide before sueli license is 
 Krunti'il. 
 
 An order liy the (iovornor (Icneriil in Council ig no lonner necessary for llio wna of a license 
 under lliis section, the direction of tlio Trewury Hoard being siilllcient for tlio purpose. Delays, 
 hitherto unavoidable, will in confoiiuonce oi the ehaiiKo be very greatly diminished. 
 
DOMINION ENACTMENTS. 
 
 713 
 
 Superintendent a sum in ijroporl ioTi to tlie Rross premiums received in Ciinadii 
 during tlio previous year. 
 
 ."). I'.viTv eompiiuy or person carrying on any sneli huslness without olitaininj^ 
 sueii lieeusf, or after siu!li license is revoited, or neglecting or refusing to make the 
 statements recpiired, and every i)ersoii who delivers any i)olicy or Insurance or col 
 lects any premium on behalf of such company or person, shall respectively incur the 
 penalties mentioned in tlie twenty-lirst au<l twenty-second sections of this Act. 
 
 0. This section shall not apply to companies carrying on in Canada ocean marine 
 insurance business exclusively. 
 
 
 SCHEDl'LK. 
 
 I''(1UM A. 
 DKTAII.S or YKAHI.V STATKMKNT -I, III-: 1 Nslli ANCK. 
 
 A list of the slociiholders. with the anumni subscribed for, the amount paid 
 thereon, and the residence of each stockholder. 
 
 I'l-o/iiiij/ or Assfts lirlil In/ liic Cinn/xin!/. ypirifj/inn Assrts «s jitr f.rth/ir AtriiiinLi. 
 
 The value (as nearly as may be) of the real estate held by the company. 
 
 The amount secured by way of loan on real estate, whether by mortgages, bonds 
 or any other security, distinguishing Ijetween these having first or second lien ou 
 such real estate. 
 
 The amount of loans secured Ijy bonds or stock or other collaterals. 
 
 The aiu(junl of loans, as above, on which interest has not been i)al(l within one 
 year previous to such statement, with a schedule thereof. 
 
 The amount of loai\s made In cash to policy-holders on the company's i)olicies 
 assigned as collaterals. 
 
 I'renilum notes, loans or liens on policies in force, the reserve on each policy 
 being in excess of all indebtedness tliereon. 
 
 Par and market values of Canadian and other stocks and securities owned by 
 the company, specifying in detail the amount, number of shares, and the p.ir and 
 tuarket value of each kind. 
 
 .\ mount of cash at hea<l otlice. 
 
 Amount of casli in banks, with details, 
 
 Hills receivable. 
 
 Agents' ledger balances. 
 
 Oilier A.ssiix. 
 Interest due and .lecrned. 
 l{enls iluc ami acirueil. 
 
 Due from other C(nnpaiiies for losses or claims on policies of the company rein- 
 sured. 
 
 .\el amount of uncollected and deferred premiums. 
 
 Com muted commissions. 
 
 All other property owneil by the eoiup.iny, with details. 
 
 /.iiihil!/ irs. 
 
 .Net present valiu' of .-ill out st anding ))oliries In I'orei', with mode o! ioiiii)Utal Ion 
 or eslimal ion, deduci iiig those reinsured. 
 
 Premium obligations In excess of net values of their policies. 
 
 Claims forde.ilh losses and m.itured endowmi'uts, and annuity claims, due and 
 unpaid, or In process of ,id' \slment. or adjusted but not due, (jr leslsled. 
 
 Dividends to slocUholders. and div ideiids of surplus or other |)rolits to policy- 
 holders, due and unpaid. 
 
 Amount <liu' on account of oHlce expenses. 
 
714 
 
 INSURANCE LAW OF CANADA. 
 
 Amount of loans. 
 
 Amount of all otlicr claims apiinst the coniimny. 
 
 Iiiroiiii: 
 
 Amount of cash promiums reci'lviMl, h^ss reinsurance. Premium notes, loans oi- 
 lions taken in pari payment for i)remiums; and premiums i)ai(l l)y dividends, in- 
 iludiufj; reconverted additions, and by surrendered policies. 
 
 Cash received for annuities. 
 
 Amount of interest received. 
 
 Amount received for rents. 
 
 Xet amount received for prolits on bonds, stocks and other i)rcperty actually 
 sold. 
 
 All other income in detail. 
 
 Prtiniinn Xn/c AvcDunt, 
 
 Premium notes, loans or liens on hand at elate of last i)revious statemsnl. 
 Additions and deductions in detail durinj; the year. 
 Balance, note as.sets at date. 
 
 ExpeiidUurf. 
 
 Total amount actually paid for losses and matured endowments. 
 C'asli paid to animitanls and for surrendered ])i)licies. 
 The same voided by lapse. 
 
 Cash surrender values, iuchidiuK reconverted additions applied in payment of 
 premiums. 
 
 Dividends pai<l to policy-holders, or applied in i)ayment of pi'cmiums. 
 
 Premium notes, loans or liens used in payment of divideiuis to jiolicy holders. 
 
 Cash paid stockholders lor interest or dividends. 
 
 Cash paid for commissions, salaries and other expenses of ollieialM. 
 
 Cash paid for taxes, licenses, foes or lines. 
 
 All other expenditures in detail. 
 
 E.iliihil (if Po/icii'S. 
 
 \uml)er an<l amount of policies and additions in full at the end of the previous 
 yeai . 
 
 Xew |)olicies and changes. 
 
 Policies terminated, and the miinnei' of termination. 
 
 N'umber and amount of policies in force at date of statement. 
 
 Ueinsuranees. 
 
 FORM B. 
 
 i)i;r.\ii.s oi- ANMTAi, srAri:Mi:\fs -Kiiti-; and rxi.AXi) makim-; isshuanci;. 
 
 A list of the stockholders, with the amount subscrioed for, the amount paid 
 thereon, and the residence of each stockholder. 
 
 7'lir J'rii/irrf!/ or AKsitft held hi/ (lie Coiiipniiij, s/iecifi/iiif/. — 
 
 The value (as nearly as may be) of the real estate held by such company ; 
 
 The amount of cash on hand and deposited in l)anks to the credit of the com- 
 pany — specifvinn- in what banks the same are deposited, with amotints separately ; 
 
 The amount of cash in the hands of a.ifents ; 
 
 The amount of loans secured by bonds and mort^iaj^es constituting either a tirst 
 or second lien on real estate, in separate schedules : 
 
 The amo\int of loans on which interest has not been paid within one year pre- 
 vious to such statement, with a schedule thereof ; 
 
T'^prii 
 
 DOMINION ENACTMENTS. 
 
 715 
 
 Tlic amounts due tliu company for whieli judumtMils have been obtained ; 
 
 The amount of Canadiiin .stiieks held by tlie company, and of any other .stocks 
 owned l)y the comi)any, speeifyiiifj; in detiiil tlie amount, number of shares, and par 
 and market value of each kind of stock owned by the company absolutely ; 
 
 The amount of stocks lield as collateral secirity for loans, with the amount 
 loaned on each kind of stock, its par and market value : 
 
 The amount of assessments on stock and premium notes, paid and unpaid ; 
 
 The amount of interest actually due and unpaid; also the amount of interest 
 accrued and unpaid ; 
 
 T'he amount of premium notes on liand on which policies are issued, with 
 amount paid thereon; also bills receivable held by the company and considered 
 K >od, the amounts of each class separately, and the amounts on each class overdue ; 
 
 The amount of all other property be oiifiiiiK to the company, with a detail thereof. 
 
 Tliv l.inbililiia nf t/ic Coiiiiiiimj. .i/icci/i/hit/, — 
 
 'I'he amount of losses due and yet unitaid ; 
 
 Amount of losses adjusted, but not due ; 
 
 Amount of losses incurred durinj; the year, includiiifl those claimed, not yet ad- 
 .justed, and of those reported to the company upon which no action has been taken — 
 the amounts of each class se!)arately, earryinji out t he totals in one sum : 
 
 Amount of claims (or losses resisted by the company. distinRuishiuK those in 
 suit ; 
 
 Amount of dividends declared and due, and remaiiunjj; unpaid ; 
 
 .Vinount of dividend.s iledared, but not yet due ; 
 
 Amount of money borrowed, and security ttiven for paynu'iit thereof— stating 
 each loan separately, and the interest paid therefor ; 
 
 The amount of unearned tire premiums ; 
 
 Amount of unearned inland marine premiums : 
 
 Amount received for murine (ocean) liremiums, not marked oil'; 
 
 Amount of all other claims attainst the company, with a detailed statement 
 thereof ; 
 
 AggroKate amount of all unpaid losses, claims and liabilities whatsoever, exce|)t 
 capital stock, 
 
 Iticoiiic of /III' Coiii/iii III/, s/iiril'i/i iiij. — 
 
 Amount of cash inemiums received, less reinsurance; 
 Amount of notes received for premiums, less reinsurance ; 
 Amount of interest money received ; 
 Ann)uiit of income received from all other sources. 
 
 E.vpiiiil it II rr (if flic (^11111/111111/, .s/ifcifi/iii;/,— 
 
 Amount paid for losses which occurred prior to the (irst day of .lanuary last, 
 deducting savings and salvage, which lossi^s were estimated in the last statement 
 at !? 
 
 -Vmount paid for losses which occurred during I he year, deducting savings and 
 salvage ; 
 
 Total amount acluiilly paid during the year for losses in each l)rat;cli, in separate 
 columns ; 
 
 .\mount and rate of dividends piiiil during the year: 
 
 Amount of expenses )iaid during the year, including commissions and fees to 
 agents ami olllcers of tlu^ comp.iny ; 
 
 ■Vmount of all ot her p ly incuts .-uid expenditures, wit h details 1 hereof. 
 
 MisrclliDifitiis. 
 Gross amount of risks taken during the year, original and renewal, in eacli 
 
716 
 
 INSURANCE LAW OF CANADA. 
 
 I>ranch of Iho coiiiimiiy's Imsinoss Hcpiinitdy— deducting iimi)mit of reinsuriiiii'e 
 cfj'octed theri'ou in uaeh bniiich si'i)iinitely ; 
 
 And amount of ri.sk.n in forcr iit end of tlii' vcar in cai'li brancli of the company's 
 Imsiness, deducting n'insuraiifi' ; and sjiowiiif^ at foot, in .si'i)aratt' colunins, tlio not 
 amount of risks Ilii'U in force. 
 
 I'OU.M C. 
 
 Form of /)ec/i(riill(iii In (iccoinpainj f/ir Sftifi iiirnt. 
 
 l'ro\ int'c of 
 Counlv of 
 
 Socretarv of 
 
 President, and 
 
 Company lieinn duly .sworn, depose and say, and eacli for himself says, tliat (liey 
 are the above deseril)ed ollicers of tlu' said eonii)any, and tliat on the 
 day of hist all the above described assets were the absolnte l)roperty 
 
 of the said uonipany, free and clear from any liens or claims thei'eon, except as above 
 staled, and that the forcKoinj; st.ilement, with the schedules and exi)lanations here- 
 unto annexed and by them subscribed, are a full and corn ct txhibit of all the liabili- 
 ties, and of the income aiul expenditure, and of the geneval condition and all'airs of 
 the said company, on the said day of last, and for the 
 
 year ending on that day, according to the best of their information, knowledg(! and 
 
 belief, respectively. 
 
 Sigtititurcs. 
 Subscribed and swoi n to before me, this day of 
 
 A.I). IS 
 
 KOHM I). 
 
 In the matter of the (/iccc inacrt niinte of III f compuny). 
 
 Notice is hereby given that the Minister of Finance has, pursuant to the thirty- 
 third ami thirty-fourth sections of " The In sun nice Act," directed assets to be re- 
 tained, suHicient in amount to cover the full ecpiitable and surrender value of the 
 policies in the above comjiany (including bonus ailditious and accrued protlts) which 
 have not been transferred or surrendered or in respect of which opposition h.is been 
 tiled as iirovided by the said thirty-third section : and the tissets so retained are 
 hereby tendered to the aforesaid pnlicyholders f)ro rota according to the aforesaid 
 values of iheir respective policies. A list of such i)olicy-holders and of the amounts 
 tendered to them respe<tively is hereinunder given, and notice is hereby given that 
 any ])oli<y-holder not signifying in writing to the Superintendent of Insurance his 
 acceptance of the amount hereby tendered to him on or before the day of 
 
 , A.D. IH , shall be deemed to have refused the same, and the amount 
 tendered may, purs\iant to the said Act, be paid over to the company. 
 
 List of policy-holders and amounts tendered : 
 
 Name. 
 
 Aililres.s S(i far a? 
 
 Amount and number 
 of policies. 
 
 Amount 
 tendered. 
 
 Dated at Ottawa, this 
 A.I). l.S . 
 
 (Signed,) 
 
 day of 
 
 (Signed,) 
 
 Mlniiler of Fimnice, 
 
 Canada . 
 
 Superinli ndinl of I iisnrai)cc. 
 
DOMINION ENACTMENTS. 717 
 
 KOKM K. 
 
 Oi'i'K F-: oi- nil': Sri'i:Fii\ii:Ni)i:\'r oi- Insikanch, 
 
 DKPMCr.MDNT OK T-'l.VA NCK, 
 
 Ottinvii. IS . 
 
 Ill llii' nmlter of l)ie Oifi')' iiisfrf the ■tiiiiir of Ihr roiiipii in/.). 
 
 You art' licrcliy iiotilit'd Unit llie Minister i>r I''iiiani'i' 1ms, purs ii ant to the I liirly- 
 tliini si'ctiiiu of " 7'//c //i.siovMKV .1(7," directed assets to lie retained siillicienl in 
 amount to cover tlie full ei|uital)Ic net surrender value of I lie jiidicies in the above 
 company, including lionus addit ions and acciiied piolits wliicli liave not lieeii Iraiis- 
 ferred or surrendered, or in respect lo wliicli opposition lias been lileil as provided 
 by t lie said tliiily-tliird section. 'I'lie assets so retained are tendered lo the afore- 
 said policyholders /ini riihi according to the aforesaid values of their respeclive 
 policies. 
 
 The amount hereby tendered U> you, and the policy or policies in respect of 
 wlilch the same is tendered, are niveii below, and you are hereby notilied that iiiilesH 
 on or before tlie day of .\.D., hS , you 
 
 sif^nify in writiny; to the .Sui)eriiiteiidenl of Insurance your acceptance of I he 
 amount lU'reby tendered, you sliall be deemed lo have refused the same, and the 
 amouiil tendered may, pursuant to the said .Vet, be paid over to the company. 
 
 Yours. &c., 
 
 (SiKiied,) 
 
 Superintendeiil of Insurance. 
 
 Name. 
 
 Nliniber and amount of policy. Amount tendered. 
 
 EXTR.VCT FRO.M TIIK RRPKaM:1) .STATl'TK HI VIC. 
 CHAP. IX. 
 
 {Tki'-ti' srcllimx 'U'e ri'fcrriil hi in c/inisr -I, .svc. /'' ol thf I iifiiira iicf .\>f.)' 
 
 4. Upon the insolvency of any company, the court haviiii.; .jiirisdiclion in the 
 jirovinee (or silting in the district if such province be the Province of tjuebee) where 
 the chief agency in Cana<la of such company is situated, shall a))point an assi>j;iiee 
 or assignees, who shall forthwith call upon tlie company lo furnish a statemenl of 
 all its outstandiiiji policies in ('anada, and iijion all policy-holders to lile their 
 claims ; and upon the liling of the claims before the assignees, the parties interested 
 sliall have the same right of contestation, and the assignee shall have the same 
 powers in respect thereof, subject to the same right of appealing from their decision 
 to the same tribunals, as is provided for in similar cases by the Insolvent .\ct of 
 IHt)!); and in case of any lire insurance company becoming insolvent, the parties 
 insured shall be entitled to claim for a part of the piemium jiaid luopm-tionate to 
 the unexpired period of their iiolicies respectively, and such return pnuniiim shall 
 rank with .judgments obtained and claims accnieil, in the distribution of the assets ; 
 and in the case of a life insurance company the assignee or assignees may insure all 
 outstanding Canadian i)olicies with some company licensed to transact business in 
 Canada, advertising for tenders to that etl'ect ; and if the amount of the de|)osit be 
 not enough so to reinsure all policies to the full amount, and to meet all .judgments 
 against the company, and claim.s accrued, the assignees may insure them for such a 
 percentage of the risk.s as the amount at their disposal may admit of, such reinsur- 
 ance ranking pro raid with judgments and claims accrued ; iin<l the eourl having 
 jurisdiction, as above provided, may order a sullicient aiiiount of the securities to 
 
 ' Supra'page 699. 
 
 A 
 
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 IMAGE EVALUATION 
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 Corporation 
 
 23 WEST MAIN STREET 
 
 WEBSTER, NY. 14S80 
 
 (716) 872.4S03 
 
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 UL i 
 
 718 
 
 INSURANCE LAW OF CANADA. 
 
 be sold to meet such reinsui-Mice. If the assignees are unable to reinsure in full or 
 in part all outstanding Canadian policies as a whole, they shall appoint a competent 
 actuary, and shall ascertain the reinsurance value of each policy according to the 
 tables which on the report of the Treasury Board may be sanctioned by the (Jovernor 
 in Council for that purpose, and upon the completion of the schedule to be prepared 
 by the assignees, of all .judgments against the company, and of all claims for rein- 
 surance or for surrender (>f the policy as aforesaid, the court having jurisdiction, as 
 above provided, shall cause the securities held by the Ileceiver General tor such 
 company, or any part of them, to be sold in such manner and after such notice and 
 formalities as the court may appoint, and the proceeds thereof, after paying the 
 expenses incurred, shall be distributed j>ro rat'i amongst the claimants according to 
 such schedule, and the balance, if any, shall be surrendere<l to the company. But if 
 any loss shall be sustaineil or any claim shall arise after the statement of outstand- 
 ing policies has been obtained from the company, as hereinbefore providcMl, and 
 l)efore the llnal order of the court for the distribution of the proceeds of the securi- 
 I ies, or if the proceed" of the securities shall not he sulticient to cover in full all 
 claims recorded in e .-hedule, the policy-holders shall not be barred from %ny 
 recourse they may .le cither in law or ecjuity against the company issuing the 
 policy, other than tha"^ for a share in the distribution of the proceeds of the securi- 
 ties held for sncii i oi il.u'.v l:y th'' Receiver General. 
 
 5. W''. r, ar.y t'o*i ,, as ^'cased to transact business in Canada, and has 
 
 given '\\<s iiolicc icini'.' . iliis Act to that etTect, before its securities can be 
 
 given '.(p to it, it mnst in .,..( ni behalf of its Canadian policyholders, all outstand- 
 ing risks iu some company c companies licensed in Canada, or obtain the surrender 
 of the policies. Upon making application for its securities, the company must llle 
 with the .Minister of Kinance a list of all Canadian policy-hohlers who have not 
 been so insured or have not surrendered their policies, and it must at the same time 
 publish in the Ciniiida (liizelle a notice that it has applied to Government for the 
 release of its securities on a certain day, not less than thirty days after the date of 
 the notice, and c 'ling upon its Canadian policy-holders opposing such release to tile 
 their oppositicm with the .MinistiT of Finance on or before the day so named : and 
 after that day, if the Treasury Board is satisfied that the company has ample assets 
 to meet its liabilities, all the securities may be released to it by an Order of the 
 (iovernor in Council, or a sullicicnt amo\int of them maybe retaim>d to covi-r the 
 value of all risks respecting which opposition has been tiled, and the remainder may 
 be released, and thereafter, from time to tinu-, as such ojjposing risks nuiy lai)so or 
 proof may be atlduced that they have been satislled, further releases may be made 
 on the authority iil'oresaid ; and after a comi)any has ceased to lrans:icl business in 
 Canada after the notice hereby rec|uired, and Its license has in conseiiueiice been 
 Withdrawn, such company may nevertheless continue to rect ive the premiums 
 coming due on policies not reinsured or surrendi'red, and nniy pay the losses arising 
 thereon, as if such license had not been withdrawn. 
 
 ACT I'AS.SKI) BY TllK DO.MIMOX PAUl.IAMENT, .IS .-><» VUTOIM ' 
 
 ClIAI'. .\X. 
 
 An Act further toanu'ud the Insurance .Vet. (Assented to 2'2nd .Inly, ISti.")*. 
 
 1. (This section has been inserted nii)>ra page 702, s. 2(1, ss. 1 & 7). 
 
 '2. The words "annual statement" in the section substituted by section eight 
 of cli.iptcr twenty of the Statntc. of ISIM for sectimi twenty one of 7Vi»' Itimintiirf 
 Art shall, in the case of companies incorporated or legally formed elsewhere than in 
 
DOMINION ENACTMENTS. 
 
 719 
 
 ■ r 
 
 Ciintulii, lie deemed to Include I)otli the statement of tlie Canada liu.sineHM and the 
 stfitement of tlie general business provided for in the subsection hereby substituted 
 for s\ibsection one of section twenty of The Insurance Act, as amended by chapter 
 twenty of the Statutes of 1H04. 
 
 I*. The renewals of licenses under The Insurance Act for the year now current 
 are hereby confirmed, and any penalties incurred with respect to the statements 
 of Reneral business required tc^be tiled in )>ursuance of the said Act arc hereby 
 remitted. 
 
 4. Notwithstanding anything in The lusurtince Act contained, subsection two 
 of section thirty-nine thereof shall apply to companies incorporated or legally formed 
 in Canada for the purpose of carrying on the business of life Insurance on the assess- 
 ment, plan ; Provided, that this section shall not interfere with the renewal of certi- 
 ficates of registration heretofore granted. 
 
 5. (This section has been inserted supra page (JiW, s. i, ss. ii».' 
 
 ACT PASSKD BY DOMINIO.N PARl-IAMENT, .->S-.-,!» VIC, CHAI'. \l\. (I«t.j». 
 
 An Act to authorize the Treasury Board to exempt certain societies from the 
 operation of tlie Insurance Act. 
 
 This Act consists of a single section, and is as follows :— 
 
 " 1. In any case to wliich section forty-three of the Insurance Act rloes not apply, 
 the Treasury Hoard may exempt from the provisions of the said Act any society or 
 organization of persons for fraternal, benevolent, Industrial or religious purposes, 
 
 ' The now subsection one of seolion twenty, cniiotcd by suction one of this AC, differs fnun 
 the repealed subseotiun by the nililition of the word* in itulios, the object of which is to make it 
 rieiir thiit ail oompanies, incorporated elsewhere than in Canada, must tilo staluiuunts of their 
 general business in the offloe of the superintendent, even though they are not re<ptired by law lo 
 t'uroish statements of such general business to the novorninont of the country where their head 
 offlcos are situate. 
 
 The subsection sovoii of section twenty, which section one of this Act repeals, ro(|uired Iho 
 statements oftlie Keneral business nf companies incorporated or foriiied elsewhere than in Canada as 
 well as their statements of Canadian l>usiness to bo filed ill the oHloo of the superintendent unt 
 later than the first day ot' .March in each year- As will be observed, the new subsection extends 
 the time forfilin« the statements of general l)U8ines< so tliat such Keniral staleinenls neeil not be 
 tiled earlier than the first day of May, nor shall thiy bo filed later than the iMb day ofJune. Some 
 of the Itrifisb oompanios found it absolutely impossible to ilepo>il their stalcinonts at so cirly a 
 ilateastho first of Mjirch, but they will have no cliihculty in com, dyinii with the reiiuiremonfs of 
 the amended subscctimi suvoii. 
 
 The second section id' the Aci was rendered necessary liy Iho fact th:it in the case of companii"' 
 other than Canadian eompanu-s, there will hereafter be two s alononts dcliverilili' at different 
 times, and the i)t).iect of the section is lo iiiike it clear that di'luult in the dcliveiy of oilhcr would 
 rondiT a oomiiany liable to llie ponulty iirovided fir in section twioiiv-"iio of tlic Act 
 
 As jilroiily stated some companies were unable, notwithstanding' their otio )St cllorl.', to comply 
 with ih" provisions id' the statute roKaidinn the clelivery of general statements, as it stood pri^ir to 
 the amendment, ami penalties bav inn been in-urr^d by ihci-i, llie third sect oti was enacted to 
 relieve them from such ponallio* aid confirm the renew. ils of their licenses. 
 
 The fourth section of the .Act Intro luces an im|i .rurit clninijc ronarJiint the lioonsin,? of Cana- 
 dian Assessment bif'o Coin|)iinios. Heretofore «uch c Hiip:uiie< have received certificates of rcKis- 
 tration and have boon pcraiitte.l to carry on the business of life insnrinccon Iho assessment |ilan 
 without iiKikinK any d«|iosit wilb tho Receiver Uen'Ml. The efleci of this section is to rc'iuire a 
 deposit ot «iVI,iiOi) from Canadian comiunies, as well as iitliors. before the issue of a license: and 
 hereafter no cmnpany of any kind can be licensed under the Insurance Act .vithoat mnkinic a 
 doposil I'ho section does not, Imwiner, interfere with the renew. il of certificates of registralion 
 granted before tho '22iid .July, l-'t'i, the ilale llie .\ct under c msideralion was assented to. 
 
 Tho fifth section of the Act, \v ich wiis added in the Senate, needs no coiniuunt. 
 
720 
 
 INSURANCE LAW OF CANADA, 
 
 'I 
 
 aiiionK which purposes is the granting of life, accident, siclcnexs or diaability insur- 
 ance to the members thereof exclusively— or any association for the purpose of life, 
 accident, sickness or dis'tbility insurance— or any one or more of such kinds of ins\ir- 
 ance, formed In connection with such society or organization and exclusively from 
 its members, and which insures such n)embers exclusively,— upon its being estab- 
 lished to the satisfaction of the Treasury Board that the occupation of the members 
 of such society or association is of such a hazardous nature that they are either 
 wholly unable to obtain insurance in the licensed insurance companies or are able to 
 obtain it only to a limited extent, and upon the payment of very high premium." 
 
 Under it the Treasury Board have authority to exempt from the operation of 
 the Insurance Act, any society formed for fraternal, benevolent, industrial or reli- 
 gious purposes among which is the granting of insurance to the members thereof as 
 mentioned in the section, upon satisfactory evidence being furnished that the occu- 
 pation of the members of such society is of such a hazardous nature that they can- 
 not obtain insurance from the regular licensed companies, or can only obtain such 
 insurance at very high premiums and to a limited amount. It may be mentioned 
 that any application for exemption under the Act must be suppr"'-:' by satisfactory 
 proof in the form of aHldavits or statutory declarations, showii g the nature and 
 objects of the society, verifying its constitution, by-laws and proposed form of con- 
 tract, and proving the hazardous nature of the employment of the members, an<l 
 their inability to obtain insurance, etc., as in the Act set forth. 
 
 t!J; 
 
QUEBEC ENACTMENTS. 
 
 t 1 r 
 
 CIVIL CODK OF LOWER CANAUA.-Tm.i; Fiirii. 
 
 Of //isK/YKicr.— Chapter First. 
 
 Gkxkkai, Phovisions. 
 
 SIXTIO.N r. 
 
 2168. Insurance is ii contnict wlierel))' one parly, called the insurer or uiiiier- 
 writer, undertakes, for a valuahlc consideration, to indemnify the other, called the 
 insured, or his representatives, against loss or liahilily from certain risks or perils 
 to which Iheolijectof the insurance may be exposed, or from the happening of a 
 certain event. 
 
 21<Mt. The consideration or price which tlie insured obliges himself to pay for the 
 insurance is called the premium. It. does not l)elonjj; to the insurer until the risk 
 begins, whether he has received it or not. 
 
 2170. Marine insurance is always a commercial contract : other insurances arc 
 not l)y their nature coinmeic'al, l(Ut they are so when made for a premiuin by per- 
 NOUS carrying on the busine . of in>urers ; subject to the except ioti contained in i lie 
 next following article. 
 
 2171. Mutual insurance is not commercial. It is governed by special staluli's, 
 and by the general rules contained in this title, in so far as they are applicable and 
 not inconsistent with such statutes. 
 
 2172. .VU persons capable of contracting may insure objects in which they have 
 an interest, and which are snl)jcct to risk. 
 
 2t7;t. Incorporeal things, as well as corporeal, and also human life and health, 
 may be the object of insurrtiice. 
 
 2171. .V (terson has an insurable interest in the object insured whenever he may 
 sutler direct and imnu'ili.ite loss by tin' destruction oi' injury of it. 
 
 2175. The interest insured must exist at the time of the loss unless the policy 
 contains the stipulation of lost or not lost. 
 
 This rule is subject to cei't:iia exceptions in life insurance. 
 
 2l7tt. Insurance may lie made against all losses by inevitable accident, or irre- 
 sistible fonu', or by events over which the insured has no control ; subject l,o Ihi- 
 geiu'ral rules relating to illeg.al and immoral contracts. 
 
 2177. The insurer may etl'cct a re-insurance, and the insured may insure the sol 
 vency of the llrst insurer. 
 
 217H. In case of loss the insured must, with reasonable diligence, give mil ice 
 thereof to the insurer; ami he nnist conform to such special recpiirenienis as may be 
 rontnined in the policy with respect to notice and preliminary proof of his claim 
 unless they are waived by tlie insurer. 
 
 If it be impossible for the insured to give noti 'c or to make the preliminary 
 proof, within the delay specilled in the policy, hu Ih entitled to a reasonable e.xteusioii 
 of time. 
 
 46 
 
If ■■- 
 
 722 
 
 INSURANCE LAW OF CANADA. 
 
 2470. In.surancc is divided with respect to l(« object iind the nature of the risks. 
 Into tliree principal kinds :— 
 1. Marine insurance ; 
 '1. Fire insurance ; 
 :<. Life insurance. 
 
 iJWO. The contract of insurance is usually witneHsad by an instrument called a 
 policy of insurance. 
 
 The policy either declares the value of the thing insured, and is then called a 
 valued policy, or it contains no declaration of value, and is then called an open 
 policy. 
 
 Wager or gaming policies, in the object of which the insured has no insurable 
 interest, are illegal. 
 
 24X1. The acceptance of an application for insurance constitutes a valid agree- 
 ment to insure, unless the insurer is required by law to contract in another form 
 exclusively. 
 
 'ilH2. I'olicies of insurance may be transferred by indorsement and delivery, or 
 by delivery alone, subject to the conditions contained in them. Hut marine policies 
 and flre iMlicies can be transferred only to persons having an insurable interest in 
 the object of the policy. 
 
 248H. In the absence of consent or privity on the part of the insurer, the simple 
 transfer of the thing insured does not transfer t'le policy. 
 
 The insurance is thereby terminated, subject to the provisions contained in 
 article 2.570.' 
 
 2484. The announcements and clauses which are essential or usual policies of 
 insurance, are declared in articles hereinafter contained relating respei lively to the 
 dittcrent kinds of insurance. 
 
 SECTION II. 
 
 24W. The insured is obliged to represent the insurer fully and fairly every fact 
 which shows the nature and extent of the risk, and which may prevent the under, 
 taking of it, or allVct the rate of premium. 
 
 24«((. The insured is not obliged to represent facts known to the insurer, or 
 which from their public character and notoriety he is presumed to know ; nor is he 
 obliged to declare facts covered by warranty express or implied, except in answer to 
 inquiries made by the insurer. 
 
 2457. Misrepresent »llons or cDncealmcnt cither by error or design, of a fact of a 
 nature to diminish the appreciation of the risk or change the obji-ct of it, is a cau.sc 
 of nullity. The contract may in such case be annulled although the loss has not in 
 any degree arisen from the fuel misrepresented or concealed. 
 
 2458. Fraudulent misrepresentation or cont'calment on the part either of tlie 
 insurer or of the insured is in all ca.scs a cau.se of nullity of the contract in favor of 
 the liinocenl. party. 
 
 2IS0. The oliligallon of the insured with respect to misrepresentation is satisdcd 
 when the fact is sulistantially as represented an<i there is no materlul concealment. 
 
 SI.CTIOX III. 
 
 2liK(. Warranties and conditions are a part of the contract and must be true if 
 allirmative. and if promissory must be complied with ; otherwise the contract may 
 bo aiin<illi-d, notwithstanding the good faith of the insured. Tliey are either express 
 or im])lied. 
 
 24ltl. An express warranty Is a stipulation or condition expressed in the policy. 
 or so referred to in it as to make part of the policy. Implied warranties will be 
 designated in the following chapters relating to dillerent kinds of insurance : 
 
 
 ' Infrn ji. 729. 
 
 \\\>: 
 
 - m 
 
 
■ 
 
 QUBBBC ENACTMENTS. 
 
 728 
 
 
 CHAPTER II. OK MAKINK IXSUUANCK. 
 
 SKtTION I. 
 
 This chapler is iiistMled as many of its provisions are iipplicnitlu to flrc ami life 
 contracts.' 
 
 2192. The policy of nmrine insiiriiiicc contains : 
 
 The mime of tlie insurod or of liis ii^ent ; 
 
 A description of tlie ol).ject insured, of llie voyage, of the commencement and 
 termination of the risli, and of tlie perils insured against ; 
 
 The natne of the ship and master, except when the insurance is on ii sliip or sliips 
 generally ; 
 
 The premium ; 
 
 The amount insuied ; 
 
 The .subscription of the insurer, with its date. 
 
 It also contains such other clauses and announcements as the parties may a^ree 
 upon. 
 
 'iW.i. Insurance may be made on ships, on ^oods. on freight, on liottomry and 
 respondentia loans, on profits and commissions, on premiums of insurance, and on 
 all other things a;)precial)le in money and exposed to the risl<s of navigation, with 
 the exception of seamen's wages, upon which invnrance cannot l)e legally made, and 
 Buliject to the general rules relating to unlawful and immoral contracts. 
 
 i4l>4. Insurance uiay he made for any kind of voyage or transport by sea, river or 
 canal navigation, and either for the whole voyage or for a limited time. 
 
 2195. The risk of loss or damage of t he thing insured by perils of the sea is essen- 
 tial to the contract of marine insurance. 
 
 The risks usually speciH"d in the policy are tempest and shipwreck, stranding, 
 collision, unavoidable change of the ship's course, or of her voyage, or of the sliI]) it- 
 self, Hrc, jettison, plunder, piracy, capture, reprisal and other casualties of war, 
 detention l)y order of a sovtreii^n power, barratry of the master and mariners, and 
 generally all other perils itiul chances of navigation by which loss or damage may 
 ari^ic. The parties may limit or extend the risks by special agreement. 
 
 •i4!K>. If the lime of the commencement and termination of the risk be not speci- 
 fied in the policy, it is regulated acfM)rding to article 2.")!IS.'' 
 
 2197. Marine policies in cases of iloubtful meaning are construed by the estuli- 
 lished and known usage of the trade to which the policy relates ; such usage is held 
 to be a part of the policy when it is not otherwise expressly provided. 
 
 2I9H. An insurance made after the loss or the.-irrival of the object of it, is null, 
 if at the time of insuring, tlie insuretl had a knowledge of the loss, or the insurer 
 of the arrival. Such Uuowledgi' is presumcil where information niinht have been 
 received in the usual caurse and al I lie usual rale of transmission. 
 
 SKCTION II. > 
 
 2I!>!I. The priiuipil obligations of the insured relate : 
 To the premium ; 
 
 To representation and ciiiu'ealincnt ; 
 To warranties and conditions : 
 
 To abandonment, which is treated in the fifth section. 
 
 2")tKl. The insured is obliged to pay the amount or rate of premium agreed upon, 
 according to the terms of the contract. 
 
 If the time of payment be not specilled, it is payable without delay. 
 
 ' C. C. a'KW and 2M5, iiiAn i-p. "'-".• A 7;". " /"/"i l<- 731. 
 
724 
 
 INSURANCE LAW OP CANADA. 
 
 2501. In the following canes the pruniiuni is not (iue, luul if it have been paid it 
 may he recovered biicli, the contract bcinj^ void. 
 
 1. When the risk insured aKiiinst does not o-cnr, either by reason of the entire 
 bieiikin;; up of the voyiiKe before the departure of the ship, or for other causes, even 
 those arising without fraud from the act of liie insured ; 
 
 2. When ther-j is a want of insuraltlo interest, or any other course of nullity, 
 without fraud on the part of the irisured. 
 
 The insurer in these eases is entitled to one half percent, on the sum insured, 
 for his indemniticaiion, unless the policy is illegal, or rendered null by fraud, misre- 
 presentation or concealment on his part. 
 
 If the policy be illegal tliere is no right of action for the premium, and none to 
 recover it back if it have been paid. 
 
 2502. The preceding article applies when the risk occurs for part only of the value 
 Insured for the iion payment or return of a proportional part of tlie premium, accord- 
 ing to circumstances and the discretion of the court. 
 
 2.")IKI. The rules concerning representation, and the effect of misrepresentation or 
 concealment, are declared in chapter one, section two. 
 
 '2'M. The general rules relating to warranties are containe<l in chapter one, sec- 
 tion three. 
 
 2r)0."). It is ail implied waiTanty in every contract of marine insurance that the 
 ship shall be seaworthy at the time of sailing. She Is seaworlhy when she is in a 
 tit state, as to repairs, et|uipinents, crew, and in all other respects, to undertake the 
 voyage. 
 
 2.t(N). In insurance for a ship-owner it is an implied warranty that the ship sliall 
 be properly documented and conducted according to the laws and treaties of the 
 country to which she belongs, and to the law of nations. 
 
 SK( TION III. 
 
 2.">ti7. The prini'ipal obligation of the Insurer is to pay to the insured all losses 
 suH'ercd by him by reason of any of the risks insured against, accor ling to the terms 
 of the contract. His liability is subject to tlie rules contained in the foregoing sec- 
 tion and to the rules and conditions hereinafter <leclared. 
 
 2.")()S. The insurer is not liable for any losses sull'ered after a <leviation or change 
 of the risk made without Ills consent, by elianging, contrary to the establ'shcd 
 usage, the ship's course or the voyage, or the ship itself, by the order of the insured, 
 unless the deviation or change is of necessity, or for the purpose of saving human 
 life. The iiisuieris nevertheless entitled to the premium if the risk hascominenceil. 
 
 2.")(l!». The insurer is not liable for loss or <lamaKe arising from intrinsic defect in 
 the thing, or caused by the culpable act or gross negligence of the Insured. 
 
 2.51(1. The insurer Is not liable for any loss by barratry of the master or mariners 
 unless there is an agreement to the contrary. 
 
 2511. Barratry is any act of wilful misconduct by the master or mariners whereiiy 
 loss is caused to tlie owners or freighters. 
 
 2.")12. The insurer is not liable for the ordinary charges known as petty averages, 
 such as pilotage, towage, tonnage, anchorage, clearance, or duties imposed upon the 
 ship or cargo. 
 
 25i;i. The limitation of the insurer's liability, for particular average under a cer- 
 tain amount and for the loss or damage of certain articles enumerated In the com- 
 mon inemorandinn of warranty to be free from average, is regulated by the terms of 
 8uch memorandum contained in the policy. If there be no memorandum of war- 
 ranty, the general rules declared in this title apply. 
 
 2.'il 1. A contract of insurance made fraudulently on the part of the insuret' for a 
 sum exceeding the value of the object of it, may be annulled by the insurer, who in 
 such case is entitled to one half per cent, upon the amount insured. 
 
 I if t ', 
 
 .Si 
 
QDEBEC ENACTMENTS. 
 
 725 
 
 ■J . 
 
 251n. If in the case spei-irtcd in tlie lust pruuudin^t nrtiele tliere be no fraud, (lie 
 rontract is valid to the amount of tlie value of the object insured. 
 
 The insurer is not entitled to the full preniiuni upon the luiiount insured in 
 4»xcess of the value, but to one half per cent. only. 
 
 'SM. If there be several contracts of insurance elFeeted witliout fraud upon the 
 same object, and against the same risks, and the tlrst (contract insures the full value 
 of the object, it alone can be enforced. The subse(|uent insurers are free from lia- 
 bility and are bound to return the premium, reserviuK a half per cent. 
 
 Subject nevertheless to such s|)ecial aKreements and conilit ions as may be con- 
 tained in the policy of insurance. 
 
 i")17. When in the case specified in the last precpding article the total value of 
 the object is not insured by the first contract, the subseijuent insuiers are liable for 
 the surplus accordiUK to the date of their respective contracts ; subject to the same 
 restriction. 
 
 2".<S. If the subse(|uenl insurance be fraudulent on the i)art of the insured, he is 
 obliged to pay the whole premium on such insurance, but is not entitled to recoxer 
 anything upon it. 
 
 2."»l!t. When there is a partial loss of an object insured by several insurances to 
 an amount not exceeding its full value, the insurers are liable for it. rateably in pro- 
 portion to the sums for which they have respectively insured 
 
 2.i2(t. When the insurance is made scparatel.v upon p>od8 to be laden in ditTercnt 
 ships, if all the noods be placed in one of the ships or in any nuinlH>r of them less 
 than the whole, the iusur.^r is liable only for the sum insured on the ^oods, which 
 under the contract were to be placed in such ship or ships, although all the ships 
 specified in the contract be lost. He is entille<l nevertheless to one half percent, 
 of premium upon the remainder of the total amount insured. 
 
 SIH'TION IV, 
 
 2.521. Loss for which the insurer is liable is either total or partial. 
 
 2522. Total loss may be either absolute or constructive. It is absolute when the 
 thin>r insured is wholly destroyed or lost. It is constructive when by reason of any 
 event insured afifiiiist, the tliiii)? thouizh not wholly destroyed or lost becomes of 
 little or no value to the insured, or the voyage and adventure are lost or rendered 
 not worth pvirsuiiiR. 
 
 Hefore the insured can claim for a constructive total loss he must make an aban 
 donment as deeliired in thi' following section. 
 
 2.">2:f. All losses not included within the meaning of the last preceilin;; article are 
 part ial losses. 
 
 2.521. When a loss by collision occurs by a fortuitous event without cither parly 
 bein;; in fault, it falls upon the injured ship without recourse against the other, iind 
 is a loss by the perils of the sea for which the insurer is liable \in<lerllic jjencral 
 terms of the policy. 
 
 2.525. When the c'ollision is caused by the fault of the master ur mariners of one 
 of the ships, the party in fault is liable to the other, and if the insured ship be the 
 one injured by the fault of the master or mariners of the other, the insurer Is liable 
 under the fjeneral clause, but if the Injury be caused by the fault of the master or 
 mariners of the insured ship, the insuier is not liiilile. If the fault anionnt-i to bar- 
 ratry it is subject, in so fai' as the insurer is concerned, to the jirovNion cdnt-.ineil 
 in article 2510.1 
 
 2.52(i. If the cause of the collision be unknown or if is impossible to determine by 
 whose fault it was caused, the damatres are borne in eipial portions by both sbips ; 
 the insurer is liable in such cause utnler the general clause. 
 
 2527. Kxtraordiiiary expenses necessarily incurred for the sole benelil of >ome 
 particular interest as for the ship alone or for the caru'o alone, and ilamajies sus- 
 taiiuvl by the shif) alone or the carffo alone, and not voluntarily suH'ered for the 
 
 ii 
 
 ■' 
 
 ' Siijira |i. 721. 
 
726 
 
 INSURANCE LAW OF CANADA. 
 
 lonimon sHfety, aro part iciiliir Hveriit?e losses for whicli the insurer is liiil)le to tlie 
 iiis\ired uiidt^r tlie general terms of the policy, when these losses are caused l)y the 
 jierils of the sea. 
 
 •ir>2H. Loss hy salvage is a loss liy the perils of the sea for which the insurer is 
 liiil)le under the general terms of the policy. Special rules relating to salvage are 
 contained in the Merchant Shipping Act, 1854. 
 
 i.ViU. The rules concerning loss by average contribution are contained in the 
 sixth section of this chapter. 
 
 25:«). When in the course of the voyage the ship Ijccomes disabled from com- 
 pleting it, the master is liound to procure another vessel for conveying th(! cargo to 
 the place of destination, if it can be done with advantage to the parties intereste<l ; 
 and in such case the liability of the insur»?r continues after the cargo is transhipped 
 for that pi.rpose. 
 
 i-jiU. The insurer is also liable in the case provided in the last preceding article 
 for damages, expenses of discharging, storage, reshipment, freight and all other 
 costs not exceeding the amount insured. 
 
 25:V2. If in the case provided in article :i5;{(l the master be unal)le ti> procure an- 
 other vessel within a reasonable time for conveying the cargo to its destination, the 
 assured may make an alumdonment of it. 
 
 U'h^i. In insurance by an open policy the value of the ship is held to t)e that 
 which slie bears at the port whei-e the voyage l)egiDN, including whatever adds to 
 her permanent value or is necessary to prepare her for the voyage, an<l also the 
 costs of insurance. 
 
 ioIU. The value of the goods insured l»y open policy is established by the invoice, 
 or if tlittl cannot be done is estiniate<l according to their market price at the time of 
 landing: all charges and expenses incurred up to that time, together with the pre- 
 mium of Insurance, are included. 
 
 iSHi"). The amount for which the uisarer is lial)le on a partial loss is ascertained 
 by comparing the gross produce of the damaged sales with the gross proibice of the 
 sound sales, and applying the percentage of dillerence to the value of the goods as 
 specilleil in the policy, or established in the manner provided in the last preceding 
 article. 
 
 2Stt>. The insured is bound when he makes claim for any loss, to declai'e, if 
 thereunto re(piired, all other insurances elfected by him on the thing insured, an<l 
 also the loans taken i>y him on bottomry and respondentia. 
 
 lie cannot claim payment for the loss until such declaration is made, when so 
 re<|uired, and if the declaration he false and fraudulent he loses his right to recover. 
 
 'iihil. The insurefl is bound to do in good faith all in his power between the time 
 of loss and the abandonment to .save the ellects insured. His acts and those of his 
 agentsdone for that purpose are for the l)enetitof the insurerand at his expense and 
 risk. 
 
 SKITION V. 
 
 iiktH. The insured may make an at)and(>nmenti to the insurerof the thing insured 
 in all cases of its constructive loss, and may thereu|K)n recover as for a total loss. 
 Without abandonment he is entitled in such cases to recover as for a partial loss 
 only. 
 
 •>'i\\K An al>andonment cannot be partial or conditi(mal. It extends, however, 
 only to the pr<)i)erty actually at risk at the time of the loss. 
 
 2540. If dillerent things or cla.sses of things be insured by the same policy and 
 separately valued, the right to abandon may exist in respect to a part separately 
 valued, as well as in respect to all. 
 
 L'.Vll. The abandonment must be made within a reasonable time after the assured 
 has received intelligence of the loss. 
 
 If from the uncertainty of the intelligence or the nature of the lo.ss further in- 
 (piiry and investigation be reipiired to enable the insured to determine whether he 
 
 ^- 
 
QUEBEC ENACTMENTS. 
 
 727 
 
 
 will abandon or not, reasonable delay for that purpose is allowed accordinK to cir- 
 cuinstanceM. 
 
 2542. If the insured fail to abandon within a ri'a>onable time, as provldofi in the 
 last preceding; article, he is held to have waived the right to do so and can only re- 
 rover as for a partial loss. 
 
 2543. The abandonment is made by a notice piven by the insured to the insurer 
 of the loss, and that he abandons to the latter all his interest in the thinj? itisiired. 
 
 2541. The notice of abandonment must be ex]>licit and must contain a statement 
 of the grounds of abandonment. These grounds ni'.i>ii exist and i>e suftit-ient at the 
 time of the notice. 
 
 2iJ4ij. Abandonment on the ground of the ship being disabled l)y stranding can- 
 not be made if she can be raised and put in a condition to contintie her voyage to the 
 place of destination. 
 
 In such cise the insured has his recourse against the insurer for the expense and 
 loss occasi(>ne<l by the stranding. 
 
 2.54(1. If a ship has not been heard of within a reasonable time after sailing, or 
 after the reception of the last intelligence of her, she is presuined to have foundered 
 at sea, and the insured may nuike ati abandonment and recovery for a constructive 
 total loss. The time necessary for raising such presumption is determined liy the 
 court according to the circumstances of the case. 
 
 2.547. Al)andonnient made and accepted is e(|uivalent to transfer, and the thing 
 abandoned with the rights pertaining to it becomes from tlie time of abandoiiinent 
 the property of the insurer. 
 
 The acceptance may be either express or imjilled. 
 
 2.5tH. On an accepte<l al)andonnient of the ship, the freight earned after the loss 
 belongs to the insurer of the ship ; that earned previously to the loss belongs to tlie 
 ship-owner or to the insurer on freight to whom it is abaniloned. 
 
 2.54!). Abandonment made upon sullicieut ground and accei)ted, is l)inding on 
 both parties. It cannot be defeated i)y any subsequent event, or revoked otherwise 
 than by mutual consent. 
 
 2550. If the insurer refuse to accei)t a valid abandonment, he is liable as for an 
 absolute total loss, deduc'ting from the amount any proceeds of the thing abandoned 
 which have been applied to the benefit of the insured. 
 
 SIXTIOX VI. 
 
 2.551. In the absence of special agreement l>etween the parties, average coiitril)u- 
 tions are regulated by the following articles of this section, and, when these do not 
 apply, by the u-^age of trade. 
 
 The insurer is bound to reimburse the insured the amount of hi^ contribution 
 not exceeding the sum insured. 
 
 2.552. Contribution by the ship and fr('i;j;lit ami by the goods whether saved or 
 lost, rateably and according to their respective values, is niach^ for clamages volun- 
 tarily sustained and extraoidiniiry expenses incurred, for t^he commoTi safety of the 
 ship and cargo. 
 
 These are called general or gross average losses, and jire as follows ; — 
 
 1. Money or other tilings given as a compensation to pirates to ratisoii! the ship 
 and cargo, or as salvage to recaptors ; 
 
 2. Loss by jettison ; 
 
 ;i. Masts, cables, anchors, or other furniture of the ship, cut away, destroyed or 
 abandoned ; 
 
 4. Damages caused by jettison to the goods which remain In the ship or to the 
 ship itself ; 
 
 5. The wages and maintenance of seamen, during the detention of the ship in 
 the course of her voyage, by a sovereign power, and during the necessary repairs of 
 injuries of u nature to give rise to average contribution : 
 
 5) 
 
 i 
 
 ; 
 
 ? 
 
 ■ 
 
 r 
 
 i 
 
 
 : 1 
 
 ;i 
 
728 
 
 INSURANCE LAW uF CANADA. 
 
 I ''■■•: 
 
 tl. The expense of iiiiliidiiiK. to liKliteii the ship and enitble lier to enter n port of 
 refiigL" or river, vvlien slie is coinpelled to do so l»y storm or !)>• the pursuit of im 
 enemy : 
 
 7. lioss and expenses iirisinx from I lie voluntary Htrandin(;of die ship for the 
 purpose of escikping total loss or (rupture. 
 
 And in Keneriil nil damiiKos voluntarily Milt'er.'d and extraordinary expenses 
 incurred for the common safety of the ship and car^o from the time of loading 
 and departure of the ship to the time of her arrival and dischar|j;e at the port of 
 desliniition. 
 
 i"i5:{. .lettison K'vcs rise to coiitriltution only when it is made in imminent peril 
 and is necessary for the preservation of the ship and carno. 
 
 It may he of llie car^o, or of tlie provisions, tackle or furniture of the shi|). 
 
 •J.'Mt. Jettison must We llrst made of things thi least necessary, the mostweiKhty 
 and of the least value. 
 
 2.">.V>. The ship's warlike stores and provisions, and the clothes of the crew, do 
 not contrilmte, l)\it the value of those lo-^l hy jettison is paid liy contril>ution upon 
 other ell'ects f?' nerally. 
 
 The haRKfine of passenxcrs does not coutrihute. If lost it is paid by contribution 
 in wliich it shares. 
 
 S)M. (ioods for which there is no bill of lading or acknowludf{ment liy the mas- 
 ter, or which are put on board contrary to the charier-party, are not paid for by con- 
 tribulioii if last by jettison. They contribute if saved. 
 
 2."i7. tJoods carried on deck, which are lost or daina>(ed by jettison, are not paid 
 for by contribution, unless they were so carried in conformity with an established 
 usajre and course of trade. They contribute it s;ived. 
 
 i'j.Vi. In case of average contrilmtion the ship and freifibt are estimated at their 
 value at the jwrt of ('iseharne. 
 
 The tjoods lost as well as those saved are estimated in like manner, dcductiiiR 
 freight, duties and other char^fes. 
 
 2.V)!». Xotwithstandinj; the rule of valuation contained in the last preceding 
 article, the amount which the insurer is liable to reimburse to the assured for liis 
 contribution is regulated by t.e value which the ship or ^oods Itear acconliiijjc to 
 articles 2-iXi aiul i^<I,' or by the sum s|)ecitled in the valued policy, anti not by their 
 C'liitrlbution value. 
 
 ■J.VH). No contribution is made for particular average losses. They are borne by 
 theoivnerof the thinj; which has suH'ered the dama;j;e or occasioned the expense: 
 saviiiy; bis recoarso aj^ainsl the insurer as declared in article :i.j27.'- 
 
 ■J.'itll. If the ship l)e not saved by the jettison, no contribution takes place, and 
 the jioods saved are not held to contribute for those lost or damaged thereby. 
 
 -.■iti^. If the ship be saved by the jettison and continues her voyage, but be after- 
 wards lost, the goods saved are subject to (Mulribution at their actual value, deduct- 
 ing the costs i,f salvage. 
 
 ■i")(i;t The goods jettisoned do not in any case contribute to the payment of losses 
 happening afterwards to the goods saved. The cargo does not contribute to the pay- 
 ment of the ship when lost or rendered until for navigation. 
 
 ^."hM. In case of the loss of goods jmt into ligliters to enable the ship to enter into 
 a imrtor river, the ship and her whole cargo are subject to contribution, but if the 
 siiip be lost with the goods remaining on board, the .-roods in the lighters are not 
 subject to contribution, although tliey arrive safelv in jjurt. 
 
 i'lti."! It is the duty of the master on his arrival at the llrst port to make his 
 declaration and protests in the customary form, and also together with some of his 
 crew to make oath that the loss or expense sustained was for the safety of the ship 
 and crew. The neglect to do so does not, however, all'ect the rights of the parties 
 intcested. 
 
 'liUM. The owners and master have a privilege and right of retention upon the 
 
 Supi'a |i "*'• '■ /''■ p. 725. 
 
QUEBEC ENACTMENTS. 
 
 729 
 
 goods oil lioard tlit- sliip or tlieii |)ric'u for tliu amount of coutribution for which 
 these are liiilile. 
 
 iVIT. If lifter the eoiitribiitioii the goods jettisoned 1)6 recovered l>y tlie owner, 
 he is Itound to repay to tlie muster imd other interested parties, tlie anxxint of llie 
 contriltution reeeived by him, deducting tliercfrom tlie amount of damage sutlered 
 by ilie goods and the costs of salvage. 
 
 CllAPTKH TIIIHD. 
 
 Of Fire fiisiininci: 
 
 2.">(W. Insuniiici' lujiiinst loss by (iie is regulated by the provisions contained in 
 the (Irst cliapler of this title, and is subject also to the rules rontained in the second 
 chapter, when these can be made to apply and are not inconsistent with the articles 
 contained in this chapter. 
 
 2.">tl!). A tire jiolicy contains the name of the party in whose favour it is made ; 
 
 A description or sulHcient designation of the object of the insurance and of the 
 nature of the interest of the insured ; A declaration of the amouir i overed by the 
 insurance, of the amount or rate of the premium, and of the nature, i onimencement 
 and diirati'in of the risl< ; 
 
 Tlie subscription of the insurer with lis date ; 
 
 .Such oilier announcements and conditions as the p.irties ir ■ lawful; \ agree npua. 
 
 2.')70. liepresei't.itions not contained in the policy or niiiu^; a pari of it, iire not 
 admitted ro c.'itrol its construction or ell'cct. 
 
 2.")71. riie iiilerest of an insurer against loss by (ire may be that ol t-i owner, or 
 of a creditor, or any other interest appreciable iu money in fhe ;liih^; insured : but 
 liu' nature of the interest must l)e sjiecified, 
 
 2572. It is an implied warranty on the part of the insured that his li'scription of 
 the object of the insurance shall be such as to shew truly under what class of risks 
 it falls according to the proposals and conditions of the policy. 
 
 2."i7;{. An insurance u])on ellccts indeterminately as being in f; certain place is not 
 limited to the jiarticular ellecls which are there at the time of iiisi.wUg, but attaches 
 to all those falling within the <lcscription contained in the policy which are in the 
 place at the lime of the loss ; unless a dill'erent intention is indicated in the policy. 
 
 2.574. Any alteration in the use or condition of the thing insured from those to 
 which it is limited l)y the policy, made without the consent of the insurer, by nie:ins 
 within the control of the insured and which increases the lisk, is a cause of nullity 
 of the policy. 
 
 If the alteration do not increase the risk, the jiolicy is not atl'ected by it. 
 
 2.")7."). The sum insured does not constitute any proof of the value of the nbjeci of 
 th" insuranci ; such value must be established in the niatiner reipiired by the condi- 
 tions of the policy and the general rules of proof, unless there is a special valuation 
 in the policy. 
 
 2")7(). The insurance is rendcre(l void by the transfer of interest in the object of 
 it from the insured to a third perso.i, unless such transfer is with the consent or 
 privity of the insurer. 
 
 Tlie insured has in all cases a right to assign the policy with the thing insured, 
 .subject to the conditions therein contained tas amended by article (i271, H. S. Q., 
 1,SS8>. 
 
 2577. A transfer of interest liy one to another of several jiartners or owners of 
 undivided properly who ari' jointly insured, does not avoid the policy. 
 
 2.578. The insurer is liable for losses caused l)y the insured otherwise tlian liy fraud 
 or gross negligence. 
 
 257!' The insurer is also liable for losses caused by the fault of the servants of the 
 insured committed without his knowledge or consent. 
 
 2.5H0. The insurer is liable for all losses which are the immediate conse(|iiencc of 
 
V' 
 
 
 B <- 
 
 730 
 
 INSUnANCE LAV OF CANADA. 
 
 lire or burning from wlmtever cause it may ariwe, including damage to the things 
 insured HutFered in their removal or by tlie means used for extinguishing the flre ; 
 subject to the special exceptions contained in the policy. 
 
 2581. The insurer is not liable for losses caused merely by excesaive heat in a 
 furnace, stove or other usual means of communicating warmth when there is no- 
 actual burning or ignition of the thing insured. 
 
 25X2. In case of loss by fire the insurer is liable for the whole amount of the loss 
 not exceeding the sum insured, without deduction or average. 
 
 2.T.s;{. When by the terms of the policy a delay is given for the payment of the 
 renewed premium, the insurance continues, and if a loss occur within the delay, the 
 insurer is liable, deducting the amount of the premium due. 
 
 2."),S4. The insurer on paying the loss is entitled to a transfer of the rights of the 
 insured against the persons by whose fault the flre or loss was caused. 
 
 CHAPTER FOURTH. 
 
 ^ ! 
 
 0/ Life Iiisurnnre. 
 
 2.iS.5. Life insurance is regulated by the provisions contained in the first chapter 
 of (his title, and is subject also to the rules contained in the second chapter when 
 these can be made to apply and are not inconsistent with the articles contained in 
 this chapter. 
 
 Articles 2")7(i ' and 2.58;» apply to contracts of life insurance. 
 
 2.tS(). Tiife insurance is subject also to the rules containeil in articles 1002, ItXKl, 
 UXVI, I!H)5, liHXi, relating to the persons upon whose life it may be effected. 
 
 Tlif nrtirli's alture referred to arc asfolloirs ;- - 
 
 l!M)i;. 'rill- rent ni'iv hi' upon the life of the person who constitutes it, or who re- 
 ceives it, or upon tlic life of a third iierson who has no right to the enjoyment of it. 
 
 lltIK!. It mav be constituted upon one life or ui)on several lives. But if it be for 
 more than ninety nine years or throe successive lives, and allect real estate, it be- 
 comes extinct thereafter as provided in article 31K). 
 
 (Article :«HI is as follows :— 
 
 It Is nevertheless competent for the parties to stipulate, in the title creating these 
 rents, that they shall only be redeemed at a certain time agreed upon, which cannot 
 exceed thirty years; every stipulation extending this term being null with regard 
 to the excess.) 
 
 liHlt. It may be constituted for the benefit of a person other than the one who 
 gives the consideration. 
 
 1!K1."). A life-rent constituted upon the life or" a person who is dead at the time of 
 the contract produces no eliect, and the consideration paid for it may be recovered 
 back. 
 
 liMK!. [The rule declared in the last preceding article applies efpially when the 
 person u|)on whose life the rent is constituted is, without the knowledge of the 
 parties, dangerously ill of a malady of which he dies within twenty days after the 
 <lalc of the contract.) 
 
 2.")H7. A life policy contains :— The name or sulHcient designation of the party in 
 whose favour it is made, and of the person whose life is insured ; 
 
 A declaration c)f tlit; amount of the insurance, of the amount or rate of premium, 
 and of tlie como' iicement and duration of the risk ; 
 
 The subscription of the insurer, with its date ; 
 
 Such other announcements aad conditions as the parties may lawfully agree 
 upon. 
 
 2r)S8. The declaration in the policy of the age and condition of health of the jier- 
 son upon whose life the insurance is made, constitutes a warranty upon the correct- 
 ness of which the contract depends. 
 
 Nevertheless in the absence of fraud the warranty that the peijon is in good 
 
 ' Siii)i;i p, 72* ■. 
 
QUEBEC ENACTMENTS. 
 
 781 
 
 health is to be construed liberally and not us meaninR that ho is free from all liillnn- 
 ity or disorder. 
 
 2nHl In life insunineo the sum insured may be made payable upon the death of 
 the person upon whose life it is effected, or upon his survivinK ii spceitied perind, or 
 periodically so lonjr as he shall live, or otherwise contingent upon the continuance or 
 determi nation of life. 
 
 :i.J9(l. The insured must have iin insurable interest in the life upon « liich the 
 insurance is eU'ected. 
 
 He lias an insurable interest in the life : 
 
 1. Of himself; 
 
 2. Of any person upon whom he depends wholly or in part for support or educa- 
 tion ; 
 
 :i. Of any jicrson under legal obligation to him for the payment of money, or res- 
 pecting property or services which deatli or illness might defeat or prevent the per- 
 formance of ; 
 
 4. Of any person upon wliose life any estate or Interest vested in the insured de- 
 pends. 
 
 '2'>',)l. A policy of itisnrance on life or heal'h may pass by transfer, will, or succes- 
 sion, to any person, wliether he has an insurable interest or not in the life rif the per- 
 son insured. 
 
 iiil2. Tlie measure of the interest insured is the sum fixed in tlie policy, except in 
 cases of insurance by crcb'tors oi in other like cases in which the interest is suscept- 
 ible of exact pecuniary measurement. 
 
 In these cases the sum lixed is reduced to the actual interest. 
 
 'SAi'S. Insurance ed'ected Ijy a person on his own life is void if he die by the hands 
 of justice, l)y duelling, or by suicide. 
 
 'J.lilH. If the time of the risk do not appear from the contract, it runs, with vesjiect 
 to the ship and freight, from the day she sails until she is ancliored or moored in the 
 place of her destination. With respect to the cargo, it runs from tlie time the goods 
 are shipped until their delivery ashore.' 
 
 REVISED STATUTES OF QUEBEC. 1H,SS. 
 TiTi.i.; IV. I'AUT II. 
 
 SECTIO.V XVII. 
 
 Taxes T'pon Com mere id I Corjionifioni^. 
 
 lim. In order to provide for the exigencies of the public service, every one 
 of the following companies and corporations doing business in the province, 
 namely ■ * * * * 
 
 Every insurance company accepting risks and transacting tin' business of insur- 
 ance therein, • ♦ « ♦ 
 
 Shall, annually, pay the several taxes mentioned and specified in article II l.'i, 
 which taxes are hereby imposed upon each of such commercial corporations, re- 
 spectively. 
 
 UK. In this section the following words and expressions have the meaning and 
 application indicated in tliis article ;<>*** 
 
 " Insurance company " comprises life, fire, ocean, inlatul marine, guarantee and 
 accident insurance companies, but does not include inulual insurance conipanicM 
 organized under 'he laws of this province : « * ♦ • 
 
 " Mead Ollice " means the most important odice or place of l)nsiness, in the I'ro- 
 vince of t^ueliec, of any commercial corpoiation. 
 
 11 1"). The annual laxes imirosed upon and payable l;y thecommercial corporations 
 mentioned and specilled in article lU.'i shall be as follows : • • « • 
 
 I: 
 
 ''ii 
 
 I i 
 
 ' Suiim p, 723. 
 
i 
 
 KM^ 
 
 m. 
 
 mi 
 
 !•: 
 
 HI 
 
 m 
 
 h 
 
 732 
 
 INSURANCE LAW OF CANADA. 
 
 II. —Insurance Companies. 
 
 (a) An in.suriince compiiny carrying on the busincsts of one kind of insurance 
 only, five liiiiidred dollars ; 
 
 (/)) An insurance company carrying on tlie business of two or more liinds of in- 
 surance at tlie same lime, five hundred dollars for the first kind of insurance, and 
 an additional sum of fifty dollars for each kind of insurance beyond one ; 
 
 (c) Com])anies known a'^ plate-glass insurance companies shall each pay a tax of 
 one-tenth of 1 percent, upon the amount of their paid-up capital ; 
 
 ill) An additional tax of §1()0 for each ofHce or place of business in the cities of 
 Montreal and Quebec, and of five doliars for each otiice or place of business estab- 
 lished in any other place ; 
 
 ((') Kvery person acting as ii broker for marine insurance companies, which do 
 not carry on the business of insurance in the province and and have no oflice or 
 place of business I herein, shall pay a princii)al tax of two hundred dollars and an 
 additional tax of fifty dollars for each of his ofiices or places of business. 
 
 1140. Such taxes shall be payable on the flr.st juridical day of the month of July 
 in each year. 
 
 1117. The total amount of the taxes imposed upon any commercial corporation 
 coming under this section shall be payable annually to the collector of provincial 
 revenue of the revenue district in which the commercial corporation b.as its head 
 oflice. 
 
 1148. On or before the first day of May in each year, every commercial cor- 
 poration doing business in the province sliall, without awaiting any notice or de- 
 mand to that eirect from the Government, forward in duplicate to the Provincial 
 Treasurer a detailed statement in which shall bo set forth, in so far as re(|uire(i, in 
 view of the collection of such taxes, l)y tliat part of article 114.5 referring to each 
 class of commercial corporations, the name of the corporation, its nature, the 
 amount of its capital paid up, the number and situation of each and all of its ofiices 
 places of business, agencies. 
 
 *«*#*■ 
 
 At the same date in each year, every person acting as a broker for one or more 
 marine instirance companies, which do not carry on the business i f insurance in 
 this province iind have no ollice or jjliice of business therein, shall make a report of 
 till' i\uniber anil the sit.iation of his ofiices or places of busini'ss, as well as the name 
 and nature of each company for which he transacts the l)usiaess of insurance. 
 ***** 
 
 lllll. lOvery commercial corporation carrying on business in the Province of 
 Quebec, and every broU«>r acting for the niarine insurance companies described in 
 the preceding article, who neglects to conform to the provisions of s\ich article, 
 shall ij/si) fiirto be liable to a fine of ten dollars per day for each day during which 
 such negligence continues, counting from the day such taxes become due until the 
 statements rerpiired l)y the said preceding article are forwarded to the Provincial 
 Treasurer. Every such commercial company and every such broker who shall 
 make an incomplete or incorrect statement, shiill be deeme<l not to have made a 
 
 icport. 
 
 « » » * « 
 
 ll'il. Kvery annual tax imposed by this section, which is not jtald, may be re- 
 covered with legal interest thereon from the date upon which such tax becaine <lue, 
 by an action brought in his own nanu'. on behalf of Iler Majesty, by the collector of 
 jirovincial revenue of the district in which such tax was payable. 
 
 The fine imposed l)y articles 114i) and * * * shall be recoverable in the same 
 manner. 
 
 2. Al! actions for the recovery of such taxes shall be brought in the judicial dis- 
 trict in which they are payalile, either before the Circuit t'onrt or the Superior 
 
y 
 
 QUEBEC ENACTMENTS. 
 
 733 
 
 Court, according to the competence of the court with reference to the niiiount 
 claimed. 
 
 3. Costs sliall not be adjudged apcainst the collector of provincial revenue in any 
 action instituted by him under this section : but, on the recommendation of the 
 court, the I'rovincial Treasurer may, in his discretion, pay to the commercial cor- 
 poration, in favour of which judgment has been rendered, the costs to which he may 
 deem it equitably entitled. 
 
 ,! 
 
 REVISED STATUTES OF QUEBEC, 188,s. 
 
 By 5S Victoria, Chapter ;U, "An Act respecting Benevolent and Mutual Benefit 
 Associations an<l Mutual Insurance (.'omi)anies," assented to 21st December, ISit."), the 
 following section and articles are added after article H'Mii of the Uevised Statutes ; - 
 
 Trn.K XI., Chaptkh hi., Sixtiox xviiik. 
 
 iti;Ni:voLi;xT and MfTi'Ai. ukxki-it assoi [atioxs anp MrriAi, insi'hanci-: 
 
 LOMl'A.MES.l 
 
 ."):!7i")((, Xo foreign mutual benefit and aid association or mutual insuraiu-e com- 
 pany, which is not already, iinder the laws of Canada, obliged to make a deposit 
 with the FederaUiovi'mment, or which does not come under articles ryJtM to ."fciT;"), 
 inclusively, of these Revised Statutes, is allowed to carry on any business in the 
 province, unless it has obtained an authorization from the Lieutenant (iovernor in 
 Council. 
 
 .537.">6. Such authorization is given upon petition, if the .association or coniiiany: 
 
 1. J'ublishes a notice of such application in the Qnchrc OjHria/ (lii~rtte during 
 one month, and in a newspaper published in French and in one published in Knglish 
 in the locality in which tlu^ cliief ollice is to be established ; 
 
 2. Deposits in the ollice of the Provincial Secretary a copy of its cluirter, articles 
 of association or other deed constituting the same as a corporation, certiticd liv the 
 oilier having the custody of the original ; 
 
 :i. Estalilishes that it is so constituted as to carry on t^ the olilivjatioiis whicli it 
 nuiy contract : 
 
 ■I. Deposits in the odice of the I^rovincial Secretary a power of attorney con^-ti- 
 tuting a jhief agent in the province for the purpose of receiving srrvices in an.\ suit 
 or i>rocef ding against it, and declaring where the principal ollice of the association 
 oi'compi.ny i'. to be established. 
 
 "iIlTi) ■. 'iiie liieutenant-Covernor in Council may, acconliiig to circumstances, 
 before granting the authorization, recpiire the association or company to (lefioslt, 
 with the I'rovincial Treasurer, such sum of money as he ni;iy deem riecessarv to 
 guarantee the carrying out of the engagements entered Into in t his province : which 
 sum mav be increased or ilimini.shcd, from time to time, by the I.leutenant-Ciovernor 
 in Council, as circumstances may re(|ulre. 
 
 Such deposit shall bear interest at the rate of three i)er cent per annum in 
 favour of the association or company. 
 
 TiM'Ml. Notice of the granting of such authorization shall be |)ubllshed bv the 
 Provincial Secretary in the Qiirliiv l)(liriii/ (i'(i~rU<\ according to the form of the 
 
 schedule .\ : and from the date of such pul)llcatioM and of the deposit in the oilit f 
 
 the i)rothonotary of the Superior Court of the district In wliifli the principal ollice 
 of the asso'dation or company is to be situated, of a copy of the Quibec Djfiriiil 
 liitzetti' containing such notice, siu-h association or company may (;otnrneni'e 
 business. 
 
 I ! 
 
 'Tho Revised Sliitutes of Quebec (1883), art. ."ifl:;! ei Hcr/., contain further |)rovi8iong regulating 
 the formation of mutual fire, etc., insurance oomiianies and tbelr inspection, etc. 
 
 1 ' 
 
i)i! ; ■: 
 
 784 
 
 INSURANCE LAW OP CANADA, 
 
 On receipt of such copy of the Quebec Offlcinl (inzette, the prothonotary shall 
 transcribe the notice in a register kept for that purpose. 
 
 6a75c. Whenever any such association or company changes its chief af;ent or the 
 location of its chief office, it shall forward to the Provincial Secretary a copy of the 
 new power of attorney concerning the same, and notice thereof must be given in the 
 Quebec Official (iazette. 
 
 A copy of such Gazette must be deposited and the notice be transcribed in the 
 manner prescribed by the preceding article. 
 
 aXiof. Any person doing business for any association or company falling within 
 the provisions of article 5;{75(/, which has not complied with the formalities retniired 
 before it could commence business in the province, or which has not complied with 
 the provisions of article oXlnc, is liable to a fine not »'xceeding one hundred dollars 
 for each otlence, and in default of payment, imprisonment not exceeding three 
 months. 
 
 ii;i7.")f/. Prosecution under this section shall be governed by the provisions of 
 Part LVIII. of the Criminal Code, X'^L 
 
 SCHEDULE A. 
 
 KOKM MKNTIONED IN ARTICLE SXlitd. 
 
 The (»irt»i*) association or company has been duly authorized to carry on l)usi- 
 
 ness in the province of Quebec. 
 
 Its principal place of business in the province is in {name of the city, town, *p.) 
 Its principal agent for the purpose of receiving services in actions or proceedings 
 
 against it is {name and resilience of the agent.) 
 
 Provmcial Secretary. 
 
 Title XI. -Chapter III.— Section XIX. 
 
 Payment of Dividends by Certain Insurance Companies. 
 
 .WTti. If the managers, directors or trustees of any Hre, life, marine or other 
 insurance company, incorporated by the Legislature of Canada, or of this province, 
 knowingly and wilfully declare and i)ay any dividend or bonus out of the paid-up 
 ciipitivl of the company, when the company is insolvent, or which would render it 
 insolvent, or which would diminish the amotint of its capital stock, such managers, 
 directors or trustees, who are present when such dividend or bonus is declared and 
 which is afterwards paifl, shall be jointly and severally liable for all the debts of the 
 company then existing, and for all thereafter contracted while siu-h managers, 
 directors or trustees respi'ctively remain in ollice ; but if any of them object to the 
 declaration of such dividend or bonus, or to the pajment of the .^ame, and at any 
 time before the lime tlxed for the payment thereof, tile a written statement of such 
 objection in the olllce of the I'ompany, and also in the registry ollice of the division 
 or county where the company is situate, such managers, directors or trustees shall 
 be exempt from such liability. (".S.C, c. Oil, s. 1. 
 
 By ii« Victoria, Chapter Ito above refer'- (I to, the following section and articles as 
 amendeil by •)<• Victoria, Chapter 15, are added after 5:i7(i of llic said Revised 
 Statutes : 
 
 Si:( TlON XlXrt. 
 
 I'AVMKNTS OF AID OP ASSISTANC'E IIV M,'Tl'AI. All) AN't) MENEKIT ASSOCIATIOVS. 
 
 XWn. In mutual aid and benellt associations constitute<l under articles .'KMttI to 
 3HU, or under a special charter, or carrying on business under the authnrl/ation of 
 the Licutenanttiovernor In Council, as provided by article ri:t7r)f», the aiil or assist- 
 ance paid tt» sick members cannot exceed the amount to be raised for that purpose, 
 after deducting the costs of management chargeable to that service. 
 
QUEBEC ENACTMENTS. 
 
 786 
 
 5:{766. The members of the commiitoe of iniinagement or board of director.s of 
 the association are jointly and severally responsible for any payment made in con- 
 travention of the preceding article, and may be condemned to reimburse to the 
 association any sum so paid upon suit brought by any member of such asssociation 
 
 »•♦♦*» 
 
 5. This Act and the laws thereby amended apply as well to associations and com- 
 panies now doing business as to those that may be hereafter formed. 
 
 (2.) Associations and companies falling under the provisions of article 5;J7.t»t are 
 granted a delay of two years, from the coming into force of this Act, to comply " i(h 
 the provisions of this Act. 
 
 0. This Act shall come into force on the day of its sanction. 
 
 iS^ 
 
 il 
 
t 1 
 
 I 
 
 oj^TARio enactme:nts. 
 
 60 VIC, c. 36. 
 
 AN ACT TO CONSOLIDATE AND AMEND THE ACTS Rp:SPECTINC! 
 
 INSURANCE. 
 
 Shout titli;, s. 1. 
 
 IXlKHI'ltKTAI'IDN, h. L'. 
 iNCOKrOKAl'KtX : 
 
 lU Of .loitit Stofk Insurance Com- 
 pan it's, ss. ;t-7. 
 
 (2) Of Mutual Jiiid Cjisli .Mutual I'ire 
 Insurance Companies, ss. S-l!l. 
 
 Share or Stock Capital in .Mutual or 
 Cash Mutual Fire Insurance Couj- 
 paiiies, Conversion of such com- 
 jjanies Into .hjiiit Stock Companies, 
 ss. 20-2!). 
 
 (11) Of Friendly Societies, ss. :!()-H!>. 
 Cii.vxcE OF Nami; oh 1Ii;.\i> Oikk k 
 
 IN I'KOVINCIAI. I.NSritANCK Cl)l(l>01iA- 
 TIOXS, s. 10. 
 
 (JovEUNMKxr I)i;i'()siTs, ss. 11-.V2. 
 
 '.IlKNSI.NO oy IXslliAXCK CoM I'AX I KS, 
 
 .i. r,\i. 
 
 KWilSTUATKIX l>K IxsritANCi: COKl'dliA- 
 
 Tio.xs, ss. i>{M. 
 
 InsUKANCK C'oMI'A.NY HlOlilSTKH : 
 
 What Corporations registered there- 
 on, ss. .")"-!!. 
 FiiiKXin.Y SociKTY llKiiisriiH : 
 What Corporations rejiistered there- 
 on, ss. ()()•;). 
 I*Roii:i;i)ix(is TO HicdisTUY : Dimiation 
 
 OK HKdISTRY, ss. (il-7U. 
 EviDl'.Nt'E OK KKIIISTKV A.NO OK (ri'llKR 
 
 MATTKHs; xoric'Ks UNDKii riii-: Acr, 
 ss. 71-7.^. 
 
 SUSI'KXSIOX OK CAXClCI.I.AriOX OK Hi)- 
 
 (ilsTllY ; Al'i'llAl.s, ss. 7t)-S4. 
 
 U X K K ti I S T K H E I) Coltl'Oll ATIOXS DIS- 
 
 yrAi.iKiEi); .\ssi;ssme.nt iNsruANci:, 
 
 I'KXAl.riKs, SS. 8.")-S(i. 
 BOOK.S OK RwilSTEHEI) COHl'OIt ATIl>XS : 
 
 Periodical Audit. Investments. Fi- 
 lumcial .Statements, ss. S7-t)7. 
 PoWKUs OK I)lHK( TODS. (.\.ll I'rovincial 
 
 Insurance Cos.), ss. !)S-U).'). 
 MiTTfAi. AND Cash Mfri'Ai, FiHio I.\- 
 suuAXit; C"oMi'AMi;s : 
 Their internal uianay:enient, ss. I(l(i- 
 111: 1. Admission and withdrawal 
 of Members, ss. I(i7111 : 2. Gener.il 
 Meetings, ss. 112-ll(i: :t. Directors, 
 <|ualili<-ations, idi'ctiou, etc., ss. 117- 
 120; 4. I'remium notes and assess- 
 ments, ss. 127-111. 
 Gkxkbai, Provisioxs kki.atixi! to Cox- 
 tracts ok IxsfKAXCK, ss. 142-110. 
 
 IXSl'HAXCi: OK rilK I'KlfSOX : 1. (iKNKHAI. 
 PHOVtSIOXS AlM'I.lfAHI.M fO AI.I. Ix- 
 
 siKKRS, SS. 147-101. 2. Al)l)lTio:>Ai. 
 PnovisioNs AiM'i.u A1II.I-: ro Fiuendi.v 
 
 SoiIKTIKS OXl.Y, ss. 102-10."). 
 
 l'"iRi-; IxsuRA.Nci-: : CiK.vkrai. Provi- 
 sions, ss. 100-7. 2. .SiAri'TORV cox- 
 
 DiriONS AND PROVISIONS lilll.AIIXC 
 
 TIIKRIM'O, ss, 108-173. 
 iNVKsTKiATlOX OK l'"lRt:s, ss, 171-."). 
 iNSl'Kl IIOX OK iNSniAXCI-; COMI'AXIKS 
 
 i.KKXsKi) HY Tiiic I'Rovixci;, ss, 17()-1H:j, 
 
 Vol.l-NTAHY I.lyllMAI'lOX OK ProVIN- 
 
 IIAI. IXSl.'liAXCI-: Co.Ml'AXIKS, s. 1,S4. 
 Vol.fXTARY lilgflDATloX OK FrIKNDI.Y 
 
 SorlKTiKs OR Fi'XDs ; .X.mai.hamatiox 
 
 OK MltAXCMKS OK I.ODIiKS, s. Hi"), 
 
 CoMi'fl.soRV Liyl'iDAilox ok Pkovin- 
 ciAi, IxsruAxci-: Corkouatioxs, ss. 
 hSOliJ."). 
 
 Costs; Pkioritiks, s, 100, 
 
 Fi;i:s I'AYAiii.i; uxdkr rHi; Acr, s. 1!»7. 
 
 Ri;i'KAi.iX(i Ci.AUsi;, s. 1!)S. 
 
 HEK M.V.I E.STY, hy and with the advice and consent of the Lenislallve Assem- 
 bly of the Province of Ontario, eiwiets as follows : — 
 
 i. This Act may be cited as The Ontario Insuriiiice Act, 1.S07. R. S. O. l.^h", c. 
 107, 8. 1. 
 
UNTARIO KNACTMENTS. 
 
 787 
 
 2. W'lu'iv iIk- following wonls iirul i'.\prcs.sion>s ii'spi'ctively occur iti this Act, or 
 in Mie Mclicdules lu-reto. tliey sliivll be construeil in tlio manner licrciniifter nu'iition- 
 ed, unless ii coi'tniry intention appciirs : — 
 
 (1) " I'rovinco " (iiiil " [.fnisliiture "' incim respectively the I'roviiice anil liCi^islii- 
 ture of Ontario. H. S. (). 1KS7, c. Uu, s. _' (I), .m V. c. ;«t, s. :.'. 
 
 {2) " Foreign .lurisdictioii " inelu<ies any jurisdiction ot her than that of (Ontario. 
 
 (M) "This Act" includes any Act aniendint; or consolidaliiiK this present Act, or 
 incorporiileii therewilli. 
 
 tl) ■• rile Minister'' means the memhei of (he Kxeciitive Council under who>e 
 direction this Act is adniinist.Mc 1. Tl. v i ). I'^-^T, c. Iii7, s. :i cJ). 
 
 (."il ■■ Inspector " means t'le Inspect .ir oi' iM^nrince lor the I'rovincc. .m V. c. :is), 
 s, •> (■>) ; 11. S. O. 1KS7, c. Ki", s. -J. CO. 
 
 (ti) " Koj.;i.stry '" as ajiplied to insurance, (Mvporations or or.Li.xiiizat ions means re- 
 gistration on thij Insurance Company Hcnister, or on the Friendly Society H^gister, 
 jiccordlng as tlie matter pertains to an insurance compmy or ,i friendly society res- 
 pect iv.ly ; an<l " Uegistry " includes exte?ision or renewal of re.ijistry. 'vt V. c. ■V.K s. 
 ■ICM; oS V. c. 3J. s. -^i-l). 
 
 (7l " Registry tJllicer" or " Registrar" or " Insur.mci' l{egistrar" means the Ins- 
 pector of Insurancii or the Registrar of Friendly Societies according as th ■ malfer 
 pertains to in insurance eouipaiiy or to a friendly society respectively. 
 
 (Sl "Registered" eorporitiou or per-^on means ,i co'-poralion or person duly re- 
 gistered orile<Mned to Uf so registered under this Act; and " unre dstered "' corpora- 
 tion or person inchnles any e.irporal ion oi' jjerson not so registered or not decni'il lo 
 he so registered for the kin<l or chaiacier of iiisuraiuie transacted or undertik-ii, or 
 oll'ered to lie undertaken ortrinsiicted, whether such corporation or person was n"MM' 
 duly registere.l for that, purjiose, or, having heeti so registered, Io-.t such I'egistiy 
 through non-renewal, suspension, revocation or cancellation. .Vi V, c. :! •, s. ;i. nir. 
 
 (i)) " Municipality" has the same meiuingas in Tlf M:i nir! n il [rt. I'.S.O. H-;7, 
 .'. I(i7. s. 2(101. 
 
 (10) ""(^oMipaoy" means , and includes any orp ir.ition. or any soeiciy or ass icia- 
 tion, inciirporiUed or unincoi-piraled, or any partnership, or any uuderuriter that 
 nnd-'rlJikes ov eli'eets lor valua,hle consideration, or agrees or oilers o lo undertake 
 or eirect, in tln' I'rovinee, any cont ract of iiisuranc;' within t:ie inieiit of this Act. 
 !{. S. (>. IssT. c. !il7, s. -1 (}i. 
 
 (Ill '■ l'i'.)vinciar'coni!)a!iv oi " I'r.ivincial'' corporation means a coiuiMiiy or liily 
 iileor)) oraled by (he I'rovinee and operati'd under the Act or instr.im"nl iiy virtu, • of 
 which the eomp i riy or hxly hecame so incorporated, ("f. It. S. O. 1HS7. c. I('(7, s. 1. isi. 
 
 (IJl "Oaiiadian ' company or "t.Unadian" corporation means a. company or 
 I) >dy incorporate I hy the Dominion of (Jan.id.i ;ind opi'r.ited under th • .V''l or inslru- 
 inent hy virtue of which the company oi' hody l)ec un' so incorporate 1. t'f. R. S. (I. 
 1,S,S7, e. 1(17, s. •! (il), 
 
 lIU) "Society" or " I'"riendly .'< i ■iety " includes any corp )ration. soi'ieiy, associ- 
 ation, or fraternity, henevoleni, inutuil, p'ovi lent, industrial, or e o upeiat ive, or 
 the like, wliicli (not being a I'orporiition wit hin th" intent of sections ."17 lo .")i) of tin-. 
 Act or reipiiied by 1 lu I') be liciised for the tran>a'-tion of insuranc) iindert ike^ ,ir 
 eirects for valu.ihle consideration, or agrees or oilers so to undertake, or etlecl, with 
 any person in the I'rovinee. any i'c)ntract ot insur.Tice, 
 
 (i() Provided that where the corpor.ttion is not organized exclusively for pur- 
 poses of such contracts, then "society " means cuily th.it branch, or ile- 
 parlinent, or division of the corporation which has such contracts in 
 chargi' ; and for purposes of such coui I'acis 1 here shall be kept disi inct 
 and separate funds, hooks, ai counts and vouchers, "m \', c. ;ii), s. 2 ( !</ 1, 
 
 •47 
 
788 
 
 INSURANCE LAW OF CANADA. 
 
 (',.. 
 
 (6) Provided also, that where two or more lodges or branches (by whatever 
 name known) of a society, though separately incorporated, are under 
 the flnancial or administrative control of a central governinR body 
 within the Province, or a duly authorized Provincial representative 
 of the society, then such governing body, if incorporated, or such 
 Provincial representative of the society may, in the discretion of the 
 Registrar, bo dealt with as the society for any or all purposes of this 
 Act. 55 v. c. :«l, s. 2 (46). 
 
 ((') Provided also, that, in the case of a friendly society incorporated else- 
 where than in Ontario, the central governing or controlling body 
 within the Province, if incorporated by virtue of the law of the 
 Province, may, in the discretion of the Hegistrar, be dealt with as 
 the society for any or all purposes of this Act. 55 V. c. HO, s. 2 (4r). 
 
 (14) The word "Lodge" includes a primary subordinate division (by whatever 
 name knowi)) of a friendly society. Sti V. c. 32, a. 1 (5). 
 
 (15) "Branch" means any number of the members of a corporation under the 
 control of a central body, having (within the intent of sul)section :tO of this section) 
 a separate insurance fund .ulministered by themselves, or by a committee of oHicers 
 appointed by themselves . 
 
 Provided that, in the corporations mentioned in subsections 2 and 4 of sec- 
 tion tK), "branch" shall include the conmiittee or persons having, 
 under the authority of the respective Acts of Canada, the manage- 
 ment of the benefit and insurance funds, or gratuity fiinds re.spect- 
 ively. .55 V. c. :«), s. 2 (5). 
 
 (16) The expression " trade or labor union or trade or labor organization" means 
 such an organization of wage earners of a particular trade or industrial calling as is 
 primarily constituted and is actually operated bona fide for the regulation of the 
 wages and hours of labor as between employers an<l employed; but shall not be 
 deemed to includt; cooperative associations or societies within the meaning of 
 chapter \m of the Revised Statutes of Ontario, 1887. m V. c. 32, s. 1 (2); .58 V. c. 34, 
 s. 1 (8). 
 
 (17) "Collector" includes ever;- officer, agent or person receiving pay, however 
 remunerated, who by himself or l)y any deputy or substitute collects premiums, 
 fees, assessments or other moneys for an insurance corporation. .55 V. c 3i), s. 2 (17). 
 
 (18) "Directors" include the board or committee (by whatever name known) 
 having the management of the insurance corporation. 
 
 "Ollicer" extends to any trustee, director, manager, treasurer, secretary or 
 member of the boani or committee of management of a corporation, or lo any person 
 appointed l)y the corporation to sue and be sued in its behalf. 55 V. c. 3it, s. 2 (lit). 
 
 (19» "Rules" means and includes provisions of the constitution and rules or 
 regulations, or resolutions or by-laws in force for the time being. .55 \'. c. 3it, s. 2 (101. 
 
 (2(1) "Head ofllce" means the place where the chief executive oflicors of an 
 insuranci' corporation transact its Imsiiiess. 55 \. c. 3!t, s 2 (201. 
 
 (21) "Chief Agency" means the principal o'tice or place of business in Ontario 
 of an extra-])rovincial corporation undertaking insurance in Ontario. ()5 \'ic. 3. 3!), 
 s. 2 (21). 
 
 (22) As applied to any instrument, "written" means and includes an instru- 
 ment written or printed, or jjartly written and pan ly printed ; and " sealeil " means 
 an instrument under corporate or other seal. R. S. O. 1HS7, c. Ili7, s. 2 (7); .55 V. c. 3it, 
 s. 2 (it)- 
 
 (2;i) " C'ontract" means and ini'luiles any contract or agreement sealed, written 
 or oral, the subject matter of which is within the intent of subsection 35 of this 
 Hcction. R. S. 6. 1887, c. I(t7, s. 2 ((b; 55 V. c. 3!), s. 2 (8). 
 
 (24) " Policy includes any contract of insurance within the meaning of this Act. 
 58 V. c. 3-1, s 1 (5). 
 
 (25) The expression " oiler to undertake contracts " shall, both as to the corpora- 
 
ONTARIO ENACTMENTS. 
 
 739 
 
 tion iind the person iictins? or purporting to act in itn Ijclmlf, include any setting up 
 of a -sign or inscription containing tlic name of tlie corporation, or any distribution 
 or publication of any proposal, circular, card, advertisement, printed form, or like 
 document in the name of the corporation, or any written or oral solicitation in the 
 corporation's behalf, or any collecting or taking premiums of insurance. H. S. (). 1S<?. 
 c. 107, s. 2 (5) ; -» V. c. :n), s. 1 (4) ; 58 V. c. ;«. s. 2 (1). 
 
 (2(i) " Maturity" of an insurance contract means the happening of an event, or 
 the expiration of the term at which the benefit under tin contract accrues due. .V! 
 V. c. 39, s. 1 (2) : 55 V. c. »», s. 2 (15). 
 
 (27) "Premium" includes any valuable consideration given or promised for in- 
 surance. .55 v. c. ;J'J, s. 2 (7). 
 
 (28) "Premium note " means an instrument given as consideration for lire nr 
 livestock insurance, whereby the maker undertakes to pay such sum or sums as 
 may be legally deniauded by the insurer, the aggregate of such sums not t'> exceed 
 an aniount specilied in the instrument. 
 
 (2i)) " Insurance corporation," or "corporation " simply, includes any corporation 
 which undertakes, or oilers to undertake a contract of insurance within the meaning 
 of sub-sectiou 35, and also includes any continuously existent twdy which undertakes 
 or offers to undertake such contract, and which, though not actually incori)orated, 
 is nevertheless legally entitled to sue and be sued in the name of any officer thereof. 
 or of a public otlicer. .55 V. c. :«), s. 2 (IM). .58 V. c. 31, s. 2 (3). 
 
 (30) "Insurance fund" or " insurance funds " as applied to any friendly society 
 within the meaning of sub-section 13 of this section, or as ai)plied to any corporation 
 not incorporated exclusively for the transaction of insurance, includes all moneys, 
 securities for money, and assets appropriated by the constitution, by-hiws or rules of 
 the society to the payment of insurance liabilities or appropriated for the manage 
 ment of the insurance branch or department or division of the society, or otherwise 
 legally available for insurance liabilities. .5.5. V. c. 30, s. 2 (I3». 
 
 The expression " insurance fund" or " insurance funds" shall n<>l be deemed to 
 include any fund or funds of a trade or labor union or orgaui/iation ai)propriatcd to 
 or applicable for the voluntary assistance of wage earners, unemployed or n|ion 
 strike. .50 V. c. 32, s. 1 (3). 
 
 (31) "The insurer" means the corporation undertakingtlie contract of insurance 
 or of reinsuraiu'e, as the case may be. 55 V. c. .'lit, s. 2 (13). 
 
 (32) "The assured" means the i)erson whose i)roperty. life, safety, health, lidel- 
 ity or insurable interest is insured. 55 \. c. 3!), s. 2 (13). 
 
 (Itt) "Nominee" when used with reference to annuities on lives means a de- 
 signated person on whose life another's annuity depends. 
 
 (31) "Maximum ' means the largest sum which, under the contracl, the licnclil 
 may reach, but may not in any event exceed. .50 V. c. 3!), s. 2 (11). 
 
 (35) " Insurance" includes the following, whether the contract be one of piiinary 
 insurance, or of reinsurance, and whether the premium payable be a sum cerlaiii. or 
 consist of sums uncertain or variable in time, nuiidteror amount. .55 V. c. 3!), s. 2 (12>. 
 <(0 Insurance against cleath, sickness, liilirniily, casualty, accident, disaliil- 
 ity, or any cliaMne of plivsical or mental condition. 55 \ . c. 3!i, ^.•l{\'lii) 
 (/<) Insurance .igaiiist linaiicial loss; oi' against loss of work, emplovinnit. 
 practi<'e, custom, wages, rents, prolits, income or revenue. .55 \'. c. 
 3i). s. 2(126). 
 ((•) Insurance of propertv against any loss or injury from any cause wlialso- 
 over, whether the obligation of the insurer is 'to iiulemuify liy a 
 money payment, or by restoring or reinstating the property insured. 
 .55 V. c. 3!), s. 2 (l'2c). 
 ((/) (.'ontracts of endowment, assessment-endowment, tontine, semi-tontine, 
 lifetime benelits, annuities on lives, or contracts of invest ment in- 
 volving tontine or survivorship principles for the benelit of persisting 
 membei's ; or any contract of investment involving life contingencies. 
 .V) V. c. 3i), s. 2(12'/). 
 
m 
 
 740 
 
 INSURANCE LAW OF CANADA. 
 
 11 :: 
 
 I''' 
 
 pi; 
 
 (<) Any contract nincic on considemtion of a preininni ami liaseil nn the ex 
 pcctancy of life; or any contract made on wucli cnn><iilerati()n ami 
 liiivini; for its sul).ject tlie life, safety, health, fidelity or iiiMir.'ilile In- 
 terest (if any i)ersoii, whether the henefit under the contnicl is iirini 
 arily payuhle to the asHured or to a donee, firantee or nsslnnee, or to 
 trustees, jruardians, orrei)resentatives, or lo(or In trust for* any hene- 
 liclary, or to the assured hy way of indemnity or Insurance a^i.-iinst 
 any llahlllty Incurred hy him hy or through I lie death or injury of any 
 lierson. So v. c. Hit, h. 2 (lJ<t. 
 (/» Any investnicTit contract under which lapses or paymi'iits made hy dN- 
 coutlnuluu; memliers or investors accrue to the lienelit of jicr--lsi Ini^ 
 memliers or Investors, except wliere a corporation mther ihan an 
 insurance corporation) Is expressly authorized to nndertil'd' suidi 
 colli ract hy a statute In force In Ontai'lo. "-5 V. c. ■V.K s. 2 \- i]'2i' ). 
 (f/) lienerally any contract In the nature of any of tlie forei;olnn whercliv tlic 
 lienelit under the contract accrues payahle on and afti'r' ili^' occur- 
 rence of some contlnfient event. 55 V. c. 'Mi, s 2 (l-f/*- 
 CIO) "Insurance of the person" includes insurance a;;alnsl diMih. sickness, 
 iiilirinlly, casualty, accident, disaliility, or against any diamre of pliysic:il or menl.il 
 condition : or any contract of Insurance having for lis su'ijcct the life, hialtli. 'nfciy 
 oi' physical or mental conilltion of a person. .j5 V. c. :V,l, s. ."(5 (1(. 
 
 (37) " Kndowment insurance" Includes any contract of Insurance wliiih con- 
 tains an undertaking to pay an ascertained or ascertainahle sum at a llxerl fulnif- 
 date, provided the assured Is then alive. An undertaking to pav s!vh su'ti on the 
 assured reaching his expectancy or expectation of lifi' siiall lie deemed to he enlow- 
 ment insurance. r>i'< V. c. :t2, s. 1 (4). 
 
 (liTa) "AsscssmenI liiswrauce" or " In.snrance on the ;ls^cs^menl system" 
 Includes any Com raci in which the premium, not being .i premium note within lln» 
 meaning of suhsection 2S of this section, consists of sums nncerlain or vaiialile In 
 time, numher (U- amount ; and also any contract whereliy the lienelit is in any man- 
 ner or degree made d(?pendent upon the collection of sums levied upon persons hold 
 jng similar contracts, or upon memhers of the contracting <'orporatlon : 
 
 I'rovldcd, thai any assessment insurance undertaken or traiis;\cted under the 
 authority of the liisnraiirc Ai-I af ('(DkiiIii shall he deemed assessmeril insiii.uu'e 
 for purposes of lliis .\c!. .55 \'. c. Hi), s, 2 (11). 
 
 C^X) " I'n'netil ' Includes all henellt, honns and insurance moncx s payahle liy the 
 insurer under the contract: and " heneficiary " Incluih's every person entitled lo 
 such moneys, and the executors, administrators and assigns of any person so en 
 titled. 55 V. c. :W. s. 2(1(1). 
 
 (:t!t) In insurance of the person the hiisliand, wife, chlMren, grandchildren and 
 motlicr of the assured shall constllule a class which may he known .as '' prcferrctl 
 lieneliciaries." and all other lieiicliciarleN ma\ Ik; known as " ordinary l)enelicii\i i's." 
 (1(1) In such insurance the jilirase "legal heirs" or "lawful lieirs ' sliall mean 
 ami iochide all the lawful surviving children of the assured, and also the wife or 
 husliaml if surviving tlie assured ; or wliere the assureii died witliout lawful surviv- 
 ing i-hildren and unmarried, It shall mean those )ierson' entitled to take according 
 to the .Statuie of Distriliutions. 
 
 (II) " Beneticiary for value" means a beneliclary for a vahiable consideration 
 other than marriage. 
 
 (42) "Mutual insurance" means, in the case of lire or live stock insnranci', in- 
 surance given in consideration of a premium note or undertaking with or without 
 an immediate cash payment thereon: and "mutual company'' means a company 
 empowered solely to transact such insurance. R.. K O. ISS7, c. HIT, s. 2 (11). 
 
 (415) " Insurance on the cash plan" means insurance given for a money consider- 
 ation without premium note. 
 
 Wi|;: 
 .ill' 
 
H 
 
 ONTARIO ENACTMENTS. 
 
 741 
 
 (41) "Casli nuituiil compiiiiy" iiit'itri.s a i.'oiiijiaiiy cirpiiiizt'd Id triiiisiut iiiutu.il 
 insiiriiiife, liiit fiiipowiTcil to umlertiikc ((mtracts of iiisuriuie'i' on Ixitli tlii' cuhIi 
 plan ivnd the prciiiiiiin iioli- or iiiiituiil pliiii. li. S. O. !M.<(, o. I(i7, •■. '^ (1-). 
 
 (45) "MornlK'r" as applied to any iiiiitual or casliiiiutiial company transacting 
 Are or live stock insurance means a policylioUler on the premium note plan, but as 
 to those inntual or cash-mutual companies which in terms of this Act have joint 
 stock capital. "menilKr" include-, where the context si reciuires, any holder of one 
 or more shares of such cajiital. (!. S. O. ISMT. c. Ki", s, 2 (I h. 
 
 ( llil " Iidand marine insnruiice" means marine insurance i". respect of suhjccls 
 of insurance at i-isU aiiove I he harliour of Montrcii! H. .S. (). ISST. c. IliT, s. :i ( l;ti. 
 
 ( I7» ■' (iuaranti'c insurance" includes contracts where a coruoration, linn or 
 person, not heiiiK the jjrantor, undertakes to insure i he validity of title, or not heim; 
 the debtor undertakes to insure the payment of mom., due or to hecome due. 
 
 (4H) "Actuarial liabilities" means the liabilities chargeable ai;aiiist an insurance 
 coriioration in respect of its insunince contract', prior to their matnrily. m \'. c. i«i, 
 s. -Jdll.. 
 
 ".Vctuarial solvency" means the solvency of an insurance coi'poration when lis 
 actuarial liabililies arc charKcd or liealcd as present, liiibilltlcs. ")."> \'. c. '.V,). s. 2 (Idl. 
 
 "Solvent." as applied to a friendly society not undc>rlaUinj^ endowment iusui- 
 anee or annuit;es, means a so('iety respecting which it has been made lo appear to 
 tlie Insurance Hcjiistrar that the society has no present liabilities apart from actu- 
 arial liabilili-s, or has immediately realizable assets ade(iuate to dischiin.ro its 
 present actual li.ibililies. ,");". V. c. 3i), s. :i (Iti); a*! V. c. ;i2, s. 10 (J). 
 
 (lib "Account " includes Iravellinir exjienses or bills of costs. ,")S V . c. Itt, s. 1 ((ii. 
 
 (50) " Ueceiver" includes iiiteiim receiver. 5H V. c. 'M, s. 1 ("i. 
 
 (."lit " ("onlriliutory " includes .-iny person who (either in his own rifjlit or as 
 liable for or representing another) is liouiiil lo contribute to the assets of a cor- 
 poration for the payment of ilsdebls. t'f. ,")S V. c. :il. s. I (iI). 
 
 (aii) " Ilstale" includes estate and ellects. .")S \'. c. Ml. s. 1 (:t), 
 
 (53) "Creditor" includes every person entitled to claim under a matured policy 
 or under a policy having; a fixed surrender value ; and, in the case of a coiporation 
 re<piired by law or departmental reLtul.ition lo maintain an ascerlained or ascertain 
 alile reserve to meet its actuarial liabilities umler unmatured policies, "ciedilor" 
 also includes any person holdinji (u- entitled lo claim uiidi>r such an unmatured 
 l)olicy. .")S v. c. .'{I, s. 1 (I). 
 
 (54) " Due application " includes such information, evidence and material as the 
 Ue^i'-nar shall reipiire lo be furnished : and also the prepayment to the Provincial 
 Treasurer of the fees hereinaflei' prescribed in respect of any applicil ion. ceri ilicai e 
 or document recpiired or issue<l by virtue of this Act. 55 V. c. 3!i. s. li iiiJi. 
 
 (."i5) ' I' poll piMof" as applied to aiiv matter connected with the reicistry of a 
 corporation or peison. or with the reiiistral ion of any matter or tiling reipiiri'd by 
 this Act to be rcf^istercd, means upon proof to the satisfaction of the licLilslrar. .Vi 
 V. c. :!!(, s. -J: {-Si). 
 
 (5()) "Appeal" includes eveiy .judicial revision oi' i'e\ lew of a .judmneiil. deci- 
 sion, order, direction, ileK'rirHiiai ion, finding or conviction, and also includes every 
 ca.'-e st.ated or reserved, and every removal of pi'occcdiiiijs by way of cerlioraii or 
 otherwise. .X V. e. 31, s. \> ( I). 
 
 >* 
 
 |:;! 
 
 I.MdUl'onATlO.V l)K JOI.N'T SI'DCK (DM I'AM IvS. 
 
 ;*.—(!) The Lieutenant-Governor in Council may. on the written recommend.ilion 
 of the Inspector, ajiproved by the Minister, grant by letters patent under the Great 
 Seal, a charier to any number of persons, not less than live, conslilutinj; such per- 
 sons and others (beiny; shareholders in the Joint stock company (hereby created) a 
 body corporate .and politic for the purpose of UMdcrlakiii;; and tiansactinu; any kind 
 of insuiaiu-c for which a, joint stock company may be licensed under this Act. I{. S. 
 »). l.sH", c. KiT, s. 4 (1). 
 
5'"' 
 
 742 
 
 INSURANCE LAW OF CANADA. 
 
 el) ApplJL'iiiits for iiu'orporation uiidur this section sixill iiiiinediatcly prior to 
 till' iictiml application, pul)Iisli in iit Ifa.st four consecutivt- i-siics of tlic (Jiihirut 
 <l<t::illi\ notifc of tlicir intontion to apply, and shall if so rciiuircd pu)>lisli also else- 
 wImmc notice of sucli intention. K. S. (). 1SS7, c. l.J7, s. 0. 
 
 (U) The notice r«(|uirc'd l)y the next preceiling sulisi'ction shall set ont tlie full 
 naint s and additions of the a|)plicants, and tlieir residenccs'and occupations; shall 
 state the proposed corporate name of the company, the liind of insurance projiosed 
 to be transacted, the place where the head olHce of the company is to l)e, the amount 
 of capital stock, the nundier of shares into which the capital is to he divided, and 
 the amount of eacli share. R. S. O., 1887, c. ir)7, s. ((. 
 
 (|y The applicants shall deliver to the Inspector the application for incorporation, 
 tojicther with proof that public notice has been duly niveti thereof ; shall also deliver 
 copies of the proposed by-laws of the cor()oration and such other material as under 
 this Act is rcipiired of a company applying for license, including the Provincial 
 Treasurer's receipts for all necessary fees, and thereupon the Inspector shall make 
 his report to tlie .Minister. U. S. O. 1887, c, lt>7. ss. I. (i. 
 
 4.— -Vll letters patent issued to applicants for incorporation under section '.\ sliall 
 lip expressed to take ellect on and from the ilay of the date of the inilial license 
 issued to the applicant company under this Act ; also the incorporation shall be 
 expressed in the letters |)atent to t)e for the transaction of such kind or kinds of 
 insurance as shall be authorized by the Provincial license from time to time issued 
 to tlie said company. (). C, :ilst .Inly, 18S<». 
 
 ."i.— (1» The allairs of every company incorporated under section :{ shall be man- 
 awed by a bo ird of not less than live nor more than fifteen directors. R. S. O. 1887, 
 c. 107, s. .-1(1); .55 v., c. :«), s. (i;! (1). 
 
 Ci) The first live of tlie persons named in the charter of incorporation shall t)e 
 dire<'lovs of the company unlll replaced by others duly elected or appointed or named 
 in their stead. R. S. (). 18S7. c. I(i7, s. r> cJ). 
 
 (H) The after directors of the company sliall be elected by the shareholders in 
 Heneral meetinprof the company assembled, at sudi times, in such wise, and for such 
 term, not exceeding two years, as the by-laws of the comiiany may prescribe. R. S. 
 O. 1H87, c. 1(17. s. .-iCi). 
 
 O.— (1) The capital stock of the company incorporated under section I shall be as 
 follows : — 
 
 If the company undertakes fire, or tire and inland marine, or accident, or life, or 
 life and accident, or guarantee, or suretysliip insurance, tlie cajiital stock shall lie 
 not less than .*!.■)( ll),(K 10, with liberty to increase tlie same to !?I.(KK),(HM> witli the assent 
 of the liientenant-tiovernor in Council ; and before applyinj; for license the company 
 shall furnish to the Inspector satisfactory evidence that of the said capital stock at 
 least .*;:i()ll,(KH) has been subscribed for and taken up hiiiiii Jiih; and that «:«),0(H) of the 
 said subscribed stock has been paid into some chartered bank of Canada. R. .S. O. 
 1887, c. 1()7, s. (1). 
 
 (2) If the company undertakes livestock insurance, with or without insurance 
 on vehicles, the capital s'ock shall be at least iS^M^OOf), with liberty to increase the 
 same as in tlie first sub-section to ^J.jOO.flDIi, of which, as in said sub-section .^lijO.ddO 
 shall be shown to have been snbscrilied, and .S1.5.(I00 to have been jiaid into some 
 chartered bank of Canada. H. S. O. 1887, c. I(i7, s. (i (■>). 
 
 y'.i) If the company (being other than as in the jireceding or followinj< sub sec- 
 tions) undertakes insurance against any Icjss of or damage to property by accidental 
 causes, including exjilosions or liy reason of larceny, houselireaking or burglary, the 
 capital stock shall be at least 310ll,(HI(), with liberty to increase the same as in the 
 lirsl subsection to>i2!H),i)iM), of which, as in said suli-sec-tioii. ^"■(»,(KKt shall be shown 
 to have been subscribed, and $11,(KH) to have been paid into some chartered bank of 
 
ONTARIO ENACTMENTS. 
 
 743 
 
 t'aimda. U. S. O. 1hh7, c 107, h. (I CJ) ; cf. 57 V. c. IW (O) ; M V. c. 78 M)i ; 54, r. V. (.•. 
 IIH(I)) ; :W V. c. ori (I)) ; 13 V. c. 102 (D) ; 52 V. c. !I7 (D) ; 55 V. t:. (W (I)). 
 
 (4) I' the coiiipiiny uriilcrtiikcs liicyck' or voliiole iiisnraiicc, or pliitc k'ii»» insur- 
 ance, tlie capital stock simll be at tlie least ?!l25,(Km, witli IUktIv to increase the same 
 as in ilie tirst suli section to $1(KM1H), of m liich first mentioned sum *12,(itJ() at the 
 least .-.hall l>u sliown to have lieen sul>scribe(l, and $tl,(l(l(» iit the least to have l)cen 
 paid into some chartered hank of Canada. H. S. O. c. Iti7, s. (! (2>. 
 
 7.— The corporate powers of any company, whethei' incorporated under this A('t 
 or under any special Act, sliall he forfeited liy nonuser durin;; three years after the 
 date of incorporation ; or if, after a coinp.iny has undertaken contracts within the 
 intent of this Act, such company discontinues Itusiness for one year ; or if itH licenHc 
 remains suspended for om- year; or if its license is lerminated otherwise than hy 
 mere ellluxion of time aiul is not renewed within the period of sixty days : and there- 
 upon the company's corporate l)OWer.i sliall ipsit fintu cease and determine, except 
 for the sole purpose of windiuj^c upitsatlairs ; and in any action or proceedin^i; where 
 such non-user is alleged, proof of user shall lie mion the corporation ; and the lli^h 
 Court, upon the petition of the Atlorney-tieneral, or of any person interested, may 
 by decree limit the lime within whi<'h the company shall settle and close ilsaccounLsi, 
 aiul may for I his specitic purpose, or for the purpose of licpii<latioii j^enerally, appoint 
 a receiver. 
 
 .':) 
 
 ifj 
 
 I'OKMATKIN AMI 1 NCdHI'OK AI'KIX (IK Ml'irAl, AMI CASIt-.M r I I'M, |-|UI-; I NST li A NCK 
 
 <().\ll'AMi:s. 
 
 H. Ten freeholders in any municipality or association of municipalities may call 
 a ine(!tinK of the freeholders thereof to consult whether it is expedient to establish 
 therein ii tire insurance company upon the mutual or cash-mutual iiriiicijile. I'.S.O. 
 1S87, c. 1()7, s. S. 
 
 O. The meetini;; shall lie called by advertisement, nientionin^ the time and place 
 and object of tlie meeting;; and the advertisement shall be )iublislied once in tlie 
 Onlari'ii Oasii/e. and for three weeks in one or more of the newspapers piilillslicd in 
 the county. H. S. O. iss?, c. 11)7, s. «». 
 
 I<). If thirty freeholders of the municipality are present at the meeting, and a 
 majority of llieiii determine that it is exp('i(i'tto cHtablish .i iiiutual or a cash - 
 mutual fire insurance comiiaiiy, they may elect three persons from among them to 
 open and keei) "■ sub'-cription-liook, in which owners of property, movable or im- 
 movable, williiii the province of Oiit.irio, may sign their names, and enti-r the sum 
 for which they shall respectively bind themselves to ellect insurance with the com- 
 pany. \i. S. O. 1,S87, c. 11)7, s. in. 
 
 11. Where seventy-live or more persons, lieing owners of movable or imniovable 
 property in the Province of Ontario, have signed their names in the subscrijit ion- 
 book and bound theniseives to ellect insurance in the company, which, in the aggre- 
 gate, shall amount to $l.")(l,(liK» at le.isl, a meeting shall be called as hereinafter pro- 
 vide<l. H. .S. O. 1.SS7. c. I(i7, s. II. 
 
 112. (1) As soon as convenii'nl after the siibsci'iptioii book has been ciMiipleted 
 in manner aforesaid, any ten of the subscribers thereto may call the (irst meeting 
 of the company at such rime and i)laci' within the municipality as they may deter- 
 mine : such meeting shall be called by sending a printed notice by mail, addressed 
 to every siil)scriber at his iio-t-ollicc address, at least ten days before the day of the 
 meeting, and by advertisement in one or more jiapers ,inblislied in the county in 
 which the iminicipality is situated. K. .S. O. 1S«7, c. I(i7, s. 12(1). 
 
 (2) The said notice and advertisement shall contain the object of the meeting, 
 and the time and place at which it is to be held. K. S. O. 1HS7, c. U>7, s. 12 (2». 
 
744 
 
 INSURANCE LAW 01-" CANADA. 
 
 I ;l. (1) Al sucli iiu't'tiiin (iiicliidinir any in'ci'ssary or rcasoiiiil)!!' ailiiiniiiiiii'iii 
 of 1 111' same) tlii' iiaiiio and vlylc of llu' coiuiiany. inclndinu: I lie appi'il.ilions " lilt- " 
 and '■ mutual," shall In- adopted, and a sccn'laiy nil inlrrini appoiiilcd, and a lio ud 
 of diri'ctors clcclcd as luTtMnafrcr pi-o\ idrd, and t!ic place nained at wliicli tU, 'lead 
 ollicf of rlie conipaiiy shall he locateil. |{. S. (). IS-<7, c. Ki". s. i:! (1 ). 
 
 i'l) 'Co constitute a valid nu'clin^; for I lie i)uiposes of the first suh-scction, at least 
 t wenty-five of the afoi'csaid suhsciihers must lie present. I{. S. (). I>'S7, c. I)i7, s. IH c^). 
 
 Ch In case of a country or towiiHliip the head ollice may l)e in any city, town or 
 village «ithii\ the houndaries of tlie country or township or ad.fareni theri'lo. I!. .S O. 
 ISS7, c. iti7. s. i;{ (H). 
 
 II. Copies of the mi tin I as of tlie said si' vera! meetings, of the rcsolui ions adopt - 
 in;r I he name or style, and ihepliv" of tlie lie.'id ollice of the company, and of t in- 
 subscription hook and the names of the directors fleeted sliall thereupon he made: 
 and all such doeiuncnts ccrtilicd as corieet uiuler the hainis of tlic chnirnian and 
 secretary, shall he tiled in the ollice of the Heiiist rAr of Deeds foithe rci^jsi ly divisimi 
 « herein the head otiice of the company is situate, it. .S. O. ISS7, c. Iti7. ss. 1 1, 2 (l."i) 
 
 15. (1) t'pou t he lllinL; of said documents, uil h I he cerlillcale, the suhscriiiers 
 ahn\ c men I ioned, find all otluT persons thereafter elleel in.; insurance in t he eouipauN , 
 (snc h sul>seril)ers or persons lieiiiLT insured on the premium note plan), shall liecouie 
 memUers of the company and shall he .i body I'orporate liy and under the name so 
 adopted. U. S. (). 1SH7. e. li>7, s. 1. (U; s. 2 (lit. 
 
 CJ) Itnt the corpor.ate powers of the company shall as provided liy section 7 he 
 fcu'feited hy non v. er (u- diseonlinuanec of husini'ss, or l)y suspension (U' cancellation 
 ol license, w hich section shall in all re<peels apply ;is well louintiial and cash inntnal 
 companies as to joint stocU ci>mpanies. U. S. (). 1SS7. <•. 1('.7, s. l.") i-i). 
 
 I O. -As soon as con vcn lent alter' the mecl irii.; men I ioned in seel ion bi, the secre- 
 tary 11(1 hi/rriiii shall call a meet in;:; of the hoard ol directors, for I he election of n 
 pii'sidenl ami vice president from .iniongsl t lieniseUcs, for the appointment ol a 
 sceietary, ireasuri'r or mananer, and the transact ion of such other huslncss as may 
 he liron^ht liefore them. I{, S. I). ISS7, c. Ili7. s. Il>. 
 
 17. Viler the company has iHcd in iheolli.'c of the HeKi>-li'i"' of Deeds the docu 
 inents mcnlione<l in section 11, and hefoi-i' (he c(nnpany sh.ill trausael or he entiilod 
 to tiansact any insnraiiee liusim'-s. the ehairinan and secretary shall tr.insudt or dc" 
 liver like copies (duly eertitied hy (hem tohe true copies and ondor-.c<t by the KeKi^-trar 
 or D.'puty ll.'nist rar of Deeds as liavinc; been duly tiled) to the Inspector of Insurance 
 a( his ollice in Toronto, accom|)anied by a Htatomont signed by the chairman and 
 svcrelary, ■ntiufi the kind , and iharaeler of tlie risks intended to be tal;en by the 
 company. Hint is to say, whether the biisiiu'ss to be ti-,uisacli'il is the insnr.ince of 
 farm ,;nil isol ited bi'ildin.iis .-ind property, or of mercantile, iminiifaclnriiij; and other 
 ha/ardoiis and cMra hazardous properties, or of bo' h : also whether I he company 
 li.'is been oruanlzed and iicorporale 1 as a mutual or as a cash inulni! company. 
 li. S. O. 1SS7, e. (17, s. 71 : s. :i (l."i». 
 
 IH. Tpon ( he reccl|)l of such ci'rl died copies and of I he aforesaid st .'it (Mi-eiil by 
 the Inspector, he shall proeocjd to asci-rt dn whether the proceedings for the coipor.i- 
 llnii of the company have been taken in aeeorilance with the law in that behalf, and 
 whether the subscriptions aw hoiiii li'lr, nivi hy persons possessing .'roperty to in 
 sure, and whether ( he proposed name is I he same as that of any existin.; c'ompany, 
 or may be easily, conl'oninled therewith, and he may recpiire the declaration of any 
 pei'-ioii or persons upon o.illi to be tiled with him, tmichinsj; any matleis concern inn 
 which he iscalK'd upon In make iiKpiiry. U, S. O. IS'^T, e. Iil7, s. IS. 
 
 H». If, upcMi examination, the Inspector shall lliid thai the salil subscriptions 
 have been made in L^ood f.iilh by persons out 'I led to make the same, and that the 
 
 I 
 
 V\ 
 
<l. 
 
 \^ 
 
 ONTARIO ENACTMENTS. 
 
 746 
 
 |iii>|Mi^('(l iKinii' is -.iilist'actorv, .ind llmt the coiupiiiiy 1ms cr)!)!])!!)'!! with iliis Acl in 
 ri'.s|nM't of (Icposli, jiml ill all olluT rt'siiccls, tlu- Minister in.iy I licmipon is'-iic a 
 lii'ciisi' nMiliT his li:iiiil and seal scttiiiji fni'lh llmt the conipiiny is tliereliy lic-eiised to 
 tr.in-''i the kind nf Imsiness spec i lied in I lie license, tor the term therein nlsn speci- 
 lii-d, lint not exceeding; I welve inuiil hs Iriiin the date (if issue : lint .siicli license may 
 fiMiii I iiiie Id time lie renewed as lierein.ifter jviinided. H. S. (). 1SS7, e. Ill", s. Ml. 
 
 -maim: (pK SIIUK lAI'ITAI, IN MITIAI. (lit ( \s|IM(rr\l lllti: INSIHANl to CIIM- 
 
 i'AMi:s; I'owKKsidX oi' Mrri'Ai, (II! cAsiiMf riAi. I.N ID .loixr srocK 
 CdMI' \Mi:s. 
 
 ilo. Any miilr.iil iir casliiuiit iial lire iiisiiianee cDiiipany, ineiirpdrated under 
 Ihi^ iir .111) runner .\ct, may with the prior assent of the laenteiiaiil (.lovernor in 
 ( 'iHincil, raise a sh.ire nr .stock capital of not less than j81(HI,(KKI, and may with the like 
 assent increa-e I he s.nne from lime to lime lo a sum not ( xeeeding %>rilMl,l!(KI: I'lovided 
 Ihal the simie pnlilie luilice as lint prescribed liy seetiini 1) Ipis liecii .iriven liy the 
 i-iiiiipuiy (if its inieiit i.iii to raise, or to increase siu'li cnpit;il. li S. O. ISST. c. Hi?, s. Mil. 
 
 21. I'A'ery subscriber sh ill, on ailotnieiit of one or more shares |o him, become 
 a member of the (dmpaiiy : vith all ineidenlal ri^lils, jiriviieKe.s and liabilities, 
 
 i;. s. (1. i>,s7, c. iiiv, .s. :\\. 
 
 '2'2. The shares shall be personal estate, and shall be I raiisferable, but no trans- 
 fer shall be valid unless made on the bonks of the companv ; and, until fully paid 
 ilji. Oil share shall be Iraiisferable without the consenl of the bo icd of diii-clors, nor 
 .shall any transfer be valid while any call pn'vionsly made niniiins imp.iid ; and the 
 (• impany shall have .a lien on the shares of any slniieliolder for unpaid ealN or other 
 debts due by him lo the companv, and for any oblii;alion held \i\ the company 
 aLCainst him: and afti'iaiiy call, debt or oblimilion becomes due, t he company may, 
 upon one nioiil lis nol ice to the shareholder, his executors or ad mi nisi lalnrs, sell his 
 hI 111 res or a siillicieiil poilion thereof to pay the lall, debt or oblif^al ion, and tran.sfer 
 the shares so sold to the purchaser. I!, ,s;. (). ls,s7. ,-. HIT, s. ;tL'. 
 
 t!:<. The compaiM may. also .ifter defaiill made in the payment (if any cmII upon 
 any share for one month, tiiid afler notice havin;,; been lirst p;iveii as in the next pre- 
 cediii:.; section meiit ioiied, decl.ire the share and all sums previously pjiid thereon 
 forfeited nllie companv , and ihe company may sell or re issue I'orfeiled slcnes on 
 -.ii'li terms ,is they think til fo i' beiietit of I Ik in puny. I!. S. ( I. IsST. e. IliT, s. :t:i. 
 
 'JH, — .Afler *>10il,''iHl of I he stock or share capital has been /loaa //'/<■ siili-,cribcd, 
 and ten per cent iitii p.'iid i hereon into I lie funds of the eoinpany, the eomp.iny may 
 make iiiHiiraiice for preminms pa.vable wholly in cash; but no insurance on the 
 wholly cash principle simll iiiaki^ ( ue insured a member o,' the eoiii|iany, or make 
 him liiible to coiil ribiite or pay any sum lo I he companx , or lo its fninb, or lo any 
 olher member thereof, beyond the cash premium agreed upon, or ^;i\l• him any 
 riLrhl III piiiiicii aie in I lie |iiollis or ..iir|p|iis funds of ih,' eompan.N , but I lie i ompany 
 shall not transMct .•in\ business wholly on iliee.ish jiriiieiple willmul lli--l |irociiiin>c 
 II liceii.'.e from I he .M iiiisier piirsiiani lolhis.\il. I!, .s;. O. H.-'T, e. Ill", ■■. :il. 
 
 !!.">. 'I'lie net ,'iiiniial |ir()lils ,'iud ^tiiis of I lie eoni|itiiiy mil ilK iiidliiLi I herein ail.v 
 premiiiiii notes or niiderlakiiijis shall be applied, in the lirst pljice. to p;iy u dividend 
 on I lie share capiial, not exceediii;; Ihe rale of ten percenium per aniiiim, and the 
 .surplus, if any, shall lie applied in the mi'iiner provideil by the liyliuvs of Ihe com- 
 pany. U. .S. I). ISS7, c, 1117, s, :i,"i, 
 
 \m.- After the share capital lias been Hubseribed as aforesaid, at leasl I wo I liirds 
 of Ihe iiersons lo be eleclcd diieclors of the company in iiddilion lo I he (|ii.i|ill(a 
 tioiis reipiired by sect ion 117 ot this Ael, shall lie liolders of share.-, of I lie cMpital 
 
746 
 
 INSURANCE LAW OF CANADA. 
 
 stock to the amount of Sl.lHKI upon wh!?h all calls have bueii duly paid; the other 
 one-third of the director.-i to l)e elected slii\ll possess at least tlic <|ualilicatiotis re- 
 quired by section 117. R. S. O. c. 167, s. :W. 
 
 27.— The board of direi-lors of any company which shall raise a share or stock 
 capital under this Act, may make such by-laws, subject to the provisions of this Act, 
 and not inconsistent witli or contrary to law, as may be necessary to carry out the 
 ob.jects and intentions of tliis Act, and to give etl'ect to tlie provisions thereof ; and 
 m ly rescind, alter, vary, or add to the same from time to time. R. S. O. 1S87. 
 c. 11)7, s. M. 
 
 3K. -Any mutual or cash-mutual tire insurance company heretofore incorporated 
 or orf^iinizcd, or wliicli m:iy be hereafter incorporated or orj^anized, uiuler any of the 
 laws of this Province, haviim surplus assets, aside from premium notes or under- 
 takin,u;s, sulHcieiit to reinsure all its outstanding risks, after having given notice 
 once a week for four weeks of their intention, and of the meeting hereinafter pro- 
 vided for, in the Ontario (inzette and in a newspaper published in the county where 
 the company is located, with the consent of two-thirds of the members present at 
 any regular annual meeting, and of two-thirds of the suVjscribers of share or stock 
 capital, or at any special general meeting called for the purjiose or with the consent 
 in writing of two-thirds of the members of the company, and the consent also of 
 three-fourths of the directors, and of two-thirds of the subscribers to the share or 
 stock <'apit:il, may. as jirovided in section ;i of this Act, be formed into a Joint stock 
 company after application having been made in terms of tlie said section: iind 
 every member of such company, on the day of the said annual or special meeting, 
 or the date of the written consent, shall be entitled to priority in s\ibscribing to the 
 capital stock of the coui|)any, for one month after the opening of the books of sub- 
 scription to the capit.il slock, in propi)Vtion to llu^ amount of insurance held by s\uh 
 members on unexpired risks in force on the day of the annual or sjiecial meeting, or 
 the date of the written consent. H. S. (). tSS7, c. Iti7. s. -JS. 
 
 UO. - Any company which may bi' foiined under the provision of the last preced- 
 ing section shall be answerable for all the liabilities of the comi)any from which it 
 has been formed, and may be sued therefor by or under its m'w corporate name, and 
 the assets, real and persoiuil, of the old company shall pass to and become vested in 
 the new company. H. S. O. 1H><7, c. I(i7, s. ;t!(. 
 
 liNCOlil'OnAMIDN UK l-l(! IINDI. V SOCIKII lis. 
 
 :«>. (1) Xo coiiiij.iny, society, association or organiz.ation ineoi'porated after the 
 tenth day of .March, 1S!N), under the Hevised .Statute respecting Ileiievolent, I'ro- 
 videiit and other Societies, or uiuler any .Vet amending oi' consolidating the same, 
 shall have authority to undertake or cH'ect for valuaiile consideration, or to agree or 
 oll'ei' so to undertake or ed'ect any contract of insurance within the meaning of sec 
 tioii "J of this .Vet : and any (lersou who in contravention of this section acts or \n\v 
 ports to act for any such corporatimi in any sr-h contract or oiler shall be guilty of 
 an olVeiice punishable as enacted in section .'^.-) of this Act. ."ill V. c. Ml), s. il. 
 
 {'1\ .\o company, society, association or organization incorporated under the He 
 \ i>cd Slalnle respecting lienevolent. Provident and other .Socii'l ies on or bcfcji-i' the 
 tenth day of March, l.**!)!), and not authorized by its original ccrtillcate or dec.aiatioii 
 of inc'orpiu'ation to undertake such contracts as menlioneil in the next preceding 
 sub-section shall by virtui' of section II) of the said K( vised .Statute, or otheru isc, 
 have authority to change or e.vtend the purpo.se.s of the corporation soils to inclinle 
 the iindeitaking of such contracts. .'tM \'. c. Hi), s. I), prurigo. 
 
 .'il. — If any body duly incorporated to undertake such contracts by virtue of any 
 prior enact meat of the l'rovitic(' or to be incorporated by virtue of sect ions Hit to :i.s 
 inclusive of ihi-- .Vet docs not go into actual ojieratioii within two years after incur 
 
Tn!!l 
 
 ONTARIO ENACTMENTS. 
 
 747 
 
 ill 
 
 poration, or, for two consecutive years does not use its forpimite powers for the pur. 
 poses or forthecliief purposes set fortli in tlie declaration or in tlie application for 
 incorporation, such non-user shall i/iso fticfo worlc a forfeiture of the corporate 
 powers except so far as necessary for winding up tlic corporation : and in any action 
 or proceeding where such non-user is allc:J!ed, proof of user shall lie upon the cor- 
 poration. R. S. O. 1HS7, c. 172, s. 1 ; 55 V. c. :«), s. «:i (1 1 ; 5i> V. c. 112, s. 2 (I). 
 
 82. (1) If after a reasonal)le tinu> has been siven to the corporation to he 
 heard, it ai)pears to the Lieutenant-Governor in Council that any body incorporated 
 under the sections or enactments referred to in sections :i(l an<l :)1 is using its cor- 
 porate powers for any fraudulent or any unlawful purpose, it shall be lawful for the 
 Lieutenant-Governor in Council to suspend foi- a limited pariod, or to revoke the 
 said corporate powers, and on any revocation the corporate powers shall I/isd/i/c/o 
 absolutely cease and determine, except for the sole purpose of winding up the all'airs 
 of the corporation ; and the High Court upon the petition of fie Attorney General, 
 or of any person interested, may. by jucigment or oiiler limit the time within which 
 the ctu'poralion shall settle and close ii> accounts, and may for this specified i)Ui 
 pose, or for the purpose of li(|nid;ition generally, appoint a receiver. .55 \'. c. ;i((, 
 s. 10 (1). 
 
 (2) Notice of any suspension or revocation of corporale powers as aforesaid shall 
 be given in the Ontario (uizi-ffr, and also elsewhere if the Lieutenant Governor in 
 Council so determine. 53 V. c. Hi), s. 1(1 (2). 
 
 (15) If during the suspension, or after the revocation of its corporate powers, any 
 director, olHcer, agent, employee, or other jierson acting or purporting (o act in lie- 
 half of the body theretofore incorporated, undertakes any contract of insurance 
 within the meaning of this .-Vet, he shall be guilty of an ollence i)iinisliable as enacted 
 in section H5 of this .Vet. .>( \'. c. :i!), s. 11(1). 
 
 •'tH. -(I) Where a friendly society registered under this Act has its head office 
 elsewhere than in the Province of Ontario, thetiraiid or other I'rovincial body, or 
 the lodges or a inajority of the lodges silualed in the Province may file with the 
 Insurance Registrar an application or applications for Provincial incorporation, .set- 
 ting forth the facts of the case and the [U'oposed corporate name, and head oHiee, and 
 the purposes and rules of the society ; also naming those persons who are to be its 
 first trustees or managing otlicers. and slating the mode in which their successors 
 are to be elected: also fiirriislilng such other inforiiiiUion as the Keglsirar rei|iiires. 
 .5<1 V. c. :i2, s. 2(1). 
 
 (2) I'p in due apjilical ion made I lie liegi-^l r.ir may name ,i day for t he hearing of 
 the applicat ion. and such public not ice of the hearing sh.ill bi> given in I he ()n/iirii) 
 (litzrllf and otherwise as the Registrar sliall direct. .5(i \', c. ;i2. s. 2 i2l. 
 
 (ID If, uiion the hearing, it appears to the liegistrar that such incorporation 
 ought to be granted, he shall Imve authority to cert ify in duiilic.ate, or in as many 
 parts as may be i(M|uiied, under his liaml and the seal nl hisoflice, that he linds 
 entitle<l to incorporation under the name and for the purposes specilieil in i he ccri i- 
 ficate, tlu' persons mcnlioned therein. 5li V. c. :)2. s. 2 (H). 
 
 (1) One of the original parts of the I'ertilicale shall be tiled in tlieollicc of the 
 Provincial Registrar, togeilur with sii' h other cloeuiiiiiil-. as the Insurance Regis- 
 trar shall by his certificate reipiire to lie fiU'd : and ficiiii the day of such (lliiig \\w 
 persons mentioned in the Insurance UegisiiMi's certificate ;ind their associates and 
 successors shall thencel'or\\ard be a body corporate and polilic. and shall have the 
 powers, rights and immunities vested by law in such boilics. ,"iii \'. c. :t2, s. 2 ( l». 
 
 (5) I'poii due application the Insurance Uegi^tr.ir sh.ill have authority to admit 
 to registry as a friendly s icicty the body so incorporated, .itl \'. c. :!2, s. 2 (5). 
 
 •,\.\, Where if is in the opinion of the Iiisuraiee I'egisi rai' necessary or expe<lient 
 that an auxiliary, or local or siiliordiiiate liod> or branch of a registered society 
 should be separately iiu'orporafed, or sep.irately registered, or both, or that two or 
 
 J!,- 
 
 ■'■■'J' 
 
Pi' 
 
 
 I ■&. 
 
 
 748 
 
 INSURANCE LAW OF CANADA. 
 
 more sociutii's sliould be ini'orporrtti'il or rt'Kixti'rcil as (jiin sociolj', llii^ Insurance 
 HcjjUtrar uiiiy cJirect the like proeeeiiinifs to Ix? taken as in tlie lu-xt preceding sec- 
 tion enacted, and tin; lilinji ol lii.s eertilicate in tlie olliee of the Provincial iJegistrar 
 sli.ill liave Hie .same elVcct as tlierein enacted: also upon due application the body «o 
 incorporated may be refj;islered. "x! V. c. Mli, s. ;i. 
 
 ;$."» Any unincorpuralediod^ic or body coul rolled l)y a rcLjistored society, and 
 o|>cr,ilL'd under tlie uiiibMin rules prescribed by the said society, and not contrary to 
 law. may, tliruu^th tlie society, make application to the Insurance Ueuiistrar for in- 
 corporation ; if upon liue application it appears to him that incorporation out;ht to 
 be j;raiited, he may cerlify the same under his hand and the seal of his olliee ; and 
 the liliiiji of his certilieate in the olliee of the Provincial liegistrar shall have the 
 same ellect as enacted in seclimi 'Xi. od \'. c. .>:i, s. 1(1). 
 
 :m. (1) The olli ers of any superaiimial ion or benelii fund authorized by sub- 
 section 7 of section ")() I of I'/ir I'liDSnIithtliil MunicifMl .1(7, lHi)2, or by sub-section 
 I:i of section -t!)(i thereof, or established by virtue of any prior or amendiu}^ munici- 
 pal .Vet, or by virtue of any .Vet authori'/.in;^ the establishment of a benelit fund for 
 p)lieiMiieii or lireni'ii, and the ollieers of any benclil fund established by virtue of 
 section IS of chapter 14.') of the Revised .Stat utes, ISST, may upon like proceedings 
 taken as enacted in section lii hereof, become iiiiin|)orated with the same limitations 
 (d' corporate powers ; and tlie body so incorporated may, upon {lne application, be 
 adniiited to rejjistry. ."id V. c. ;iJ, s. .">. 
 
 cil The provisions recited in tin,' next precedinu: subsection shall be deemed to 
 include any provision amendiiifi. revising or consolidatinji the said provisions re- 
 spectively. 
 
 ;{". Where a friendly society has its head oHice in Ontario, and tlii' society or 
 the lo(ljj,es of the society were, on the tenth day of .March, ISlHl, and also on the 
 thirlylirst day of December. \X\)'l. in actual and active operation, anr. thouuli the 
 soi iety, bciiiii at the lirst mentioned date entitled to incorporal ion, <lid not on oi' 
 beloro that date take out incorporati(Ui, the Heiiist rar of Friendly Societies, U|K)n 
 proid of the facts, shall have authority to issue a certiticate of incorporation as in 
 section ;W hereof enacted, and the lilinj^ of such eertiliuate in the olliee of the Pro- 
 vincial Ile]L?islrar shall have the same eirect as therein jirovided ; upon due applica- 
 tion the so;:iety so inc.jrported miy b'j rejijistered. 5:! V. c. 'M, s. (i. 
 
 US. il) I'lioii like proccediiiLts taken as eiiaeteil in sectimi MH, incorpm'al ion may 
 be granted in either of the two followini; cases : - 
 
 (n) Where any trade or labor union. or traile or labor orpin izatioii proposes 
 to uinlcrlake contracts with its own nipuibers exclusively, for any of 
 the insurance benelits enumerated in ami |ierinitled by sulisectioii 
 :) of sect ion dli, or contracts to furnish tools or to pay uneinplovcd or 
 snperaiinuati(m benelits to the said members. 57 V. e. IS, s li (la) ; 
 r)S V. e. :il. s. 1 (Si. 
 ill) Where any organization of persons resi<lent in Ontario, consistinn of not 
 less than twenlyllve members, and luananed and operateil ivs a 
 friendly society under rules conformiim to this Act, jiroposes to eon- 
 tract with its own members exclusively for sick benelits, not exceed- 
 in.ii' lixe <lollars per we(d< and a fiiiieral benelit of not more than one 
 hundred dollars, or either ol such benelits. 57 V. c. IS, s. 2 (I/*). 
 (2) Tlu> body so incorporaled may, ujioii due ,'ipplieation, he iidmitted to registry 
 as a friendly society ; but unless and until so registered, the enrporatioii shall not 
 undertake, nor airree or oiler to undertake, any contract iiisurinji the said or other 
 Insurance benelits. .")7 V. c, IS, s. 2(2). 
 
 ;H>. Where any society, association. iinl(Hi. ornanizalioii or lodiie already incor- 
 
 JL 
 
"1^ 
 
 ONTARIO ENACTMENTS. 
 
 749 
 
 poi'iitL-d iindi'i- iv prior Act of tins I'roviiu'e hi'coiiu's iiicoi'iiomtcd niiilcr this Act, sncli 
 prior iucorpiiralion sliall be (Ifoiucd to liavc boen iiicrgi'd in .nid siipcrsi'dcd liv tin; 
 said later incorporation, 'tl \'. c. IH, ■<. ;{. 
 
 CIIA.VCK OF NAMl: (Hi Ot UKAll 1 )l-l-li i:. 
 
 (.1// I'roihwiiil J niiii tiiiici' (.'<jr/>(ir<itiiiiis,\ 
 
 to. (1) Wlicrc an insnrancc corporation willuii tlie Icfjisial ivc aulliority of tla> 
 T'r )vincy is desirous of adoptin^ia name dillcrcnl fi-om Iliat l)y wliicli it was incor 
 porated. or wlici'ci in tlic opinion of tlic Insurance Hcjj;isir,ir tlic name liy wiiicli the 
 corporation was incorporated may lie easily confounded with that of any olln !■ e\ 
 isling corpor.ition, or is otherwise on public Krouuds ol>jectiouable, llie Lienteiiant 
 (iovernor in Council, upon the iccominendiition of the said Ki'ijist rar, appi-oved liy 
 the Minister, may cha i^e the name of the corporation to some othei' name to be set 
 forth in the Order-in-Conncil ; but no such change of name shall all'ect the i-iuhls or 
 oblijjations of the corp(U-ali()n : and all procecdin;;s which mijihl have been contin- 
 ued or commenced by or ajiainst the cori)oration by its former name may be i oniiii- 
 lied or cduinienccd by or a;;ainst the corporation under its now uamo. ");') V. c. :!i'. 
 s. :i4(l) ; H. S. (). is,><7. <•. KIT, s. 115. 
 
 tlil The head o(^icl^ of a coiporatiou may be i-hanLTccl upon the like iircjcediire. 
 
 r..s V. c. :u, H. r, tiii, 
 
 C.'i) 0( any such chauji'e oi ......le or head office, such public mil Ice sliall be .:iven 
 
 in the Onhtrin (iif.cl/r and otherwise as the KeLiisl I'ar shall direct. ."j-"> \'. c. 'V-K --. lit 
 (2); 58 V. c. ;<1, s. .") (7). 
 
 (;()vi;KNMt'.:sT iii:i'ostis. 
 
 41. (1) K.xcept nuitn.'il lire insui'ance conipanies licensed oidy for the insiiiwnei- 
 of farm bnildintrs and of Kolalcd risks (such ris|.;s beiu'.; ot her I ban mercant ilc and 
 manu'iU'turintr risks) every company ap))lyinir for a I'rovincial license to transact in 
 sui-ance shall, before the ori'.;inal issue or the renewal of the license, in- of re.'i-liy, 
 lod}i;c with the Minister the initial or i he ivucwal deposits respectively ImIow ^faieil. 
 and the said deposits shall be made in cash oi' in deposit receipts of chailcied banks 
 of Canada, or in thestoek or bonds of the no'idnion of Canad.i or of this I'roviuce. or 
 in deposit recLupts or terminable debentures of any corporation in the obliiiation^ of 
 which trustees may under ihe lav of this Province invest triisi m neys : I'lovidcd 
 that this section in so far as it altei's the ainouni of tiie deiiosii reiinired by statutes 
 heretofore in force shall not ajiply to siu'li comiianies as have heretofore reported to 
 the Department of Insurance, bnl shall, from the pas'^inir of ihU Aei. apply to all 
 other comiianies rhereafter licensed. It. S. ( ). IS.sT. e. KiV, s. ill c 1 1 : ."i| \'. c. .i7. v. -j, 
 
 (i;i The inilia,! deposit to be made by any corporation lialile to make ilep:'--il be- 
 fore the oriKiual or iuilial rejjistry shall be the sum appointed ior sueh eiii-]ioral ien 
 in sub-section 1 of this section. K. S. (). lf*S7, c lti7, s. IP (l'i. 
 
 (H) liefore the annual renewal of re).'istry theamoiiiii of ilepo^j, ie(|nired of any 
 .such eorporalion .shall on or before the lirst day of duly in each year he re .idjus'ted 
 in terms of the next following two suh-seci ions. U. S. (). I.s,s7, e. pi7, ,,,. |ii dj). 
 
 |4) If on the precediim :ilst day of December in any ye.ir the corporation's total 
 contint;ent liability or amount at risk does mit exceed .Sli.lKKI.OiHl : 
 
 id) Then every Joint stock lire' or lire .iiid inland marine insurance compan> . 
 and every life or life and accident comp.iuy, and (■\ cry y;'i'"'antee and 
 surety company sliall keep on deposit w ith 1 he .Minister, if a J'rovin 
 cial or Canadian company, S2ri,(NH), and if a foreign company, $iili,niiii. 
 U. H. O. W87, c. 11)7, s. 40 (1). 
 (h) Every accidciitcompany, if I'rovincial or Canadian, shall keep on deposit 
 with the Minister ?20,(K1(), and if a joint stock foreign company, $1(1,- 
 (XJU. H. S. O. 1887, c. 1(!7, s. 40 (4). 
 
 lull 
 
 I 
 
 i I 
 
Ill 
 
 750 
 
 INSURANCE LAW OF CANADA. 
 
 (c) Kvery Provincial iiiutual lin-, or (ire mid inland nmrini' coiiipaiiy, insuring 
 mercantile and manulacturinK risk.s, shall kyt'p on deposit willi tlie 
 Minister ••?I((,<HH), and every I'roviiicia! ?asli mutual lire,oreash mutual 
 Are and inland marine company, ^l(),0(«t. R. S. O. 1887, c. 107, s. 1(1 1 1). 
 (fh Kvery live-stock insurance company shall keep on deposit as aforesaid, if 
 rrovinclal or Canadian, sl(),0(M), and if foreign ,ioiiit, stock, ?2").<)()(t. 
 |{. S. O. ISM7, c. I(i7, s. JO (H. 
 (<■) Every insurance company within the intent of suli-sect ion '.i of section tl 
 shall keep on deposit, as aforesaid, if Provincial or Canadian, 311I,0(H(, 
 and if foreign Joint stock »!2(),0(KI. It. S. O. 1.887, c.'l(»7, s. 4(1 (1). 
 (/) Kvery insurance company within tiie intent of sulisection 4 of section (i 
 sliall keep on dejiosit as aforesaid, if Provincial or Canadian, $5,(K)0, 
 and if foreign joint stock, §1(»,()()0. 
 ((/) Every foreign company doing only (lie business of re-insuring (Ire risks 
 undertaken by companies standing registered under this Act shall 
 keep on deposit, as aforesaid, icilO,(KK). 
 (h) Kvery noiiprovincial friendly society within tlie intent of sub-section tiof 
 section W. sliall keep on deposit ?."i.O(Xt. 
 (5) If on the jireceding :ilst day of Dpcemher in any year, the corporation's total 
 contingent liability, or the amount of insurance in force (insured or reinsured) ex- 
 ceeds §2,0(I0,()()(), then for each additional •^1,()00,(HH» or fraction thereof, the corpora- 
 tions enumerated in the next preceding subsection shall respectively keej) on deposit, 
 with the Minister. I)y way of additional security, a sum equal to onetifth of the ini- 
 tial deposit, and the additional deposit shall l)e either in cash or securities as afore- 
 said. K. S. (). 1887, c. I(i7, s. 10 (.5). 
 
 42.— (1) Securities of the Dominion of Canada, or securities issued by any of the 
 Provinces of Canada, shall be accepted at their market value at the time when they 
 arc deposited. K. S. (). 1887, c. I(i7, s. 41 (1). 
 
 (2) The other securities above specided shall be accepted at such valuation and 
 on such conditions as the Minister may direct, and (lie Inspector shall under (he 
 name of each company keep a record of the securities deposited on its account, nam- 
 ing in detail the several securities, their par value, and the value at which they are 
 received as deposit. K. S. (). 1887, c. 107, s. 41. s. ."hi (."<). 
 
 Cfl If the market value of any of the securities which have been deposited by any 
 company declines below (he valui; ,it which tliey were (leposiicd, the Minis(er may, 
 from (ime (o (ime, call upon the corpcn'adon to make a furtlier deposit, so that the 
 market value of all the securities deiiosited by any coinpany sliall be eipial to (he 
 ainouiU which they are re(|uire(l to deposit by this Act. K. S. (), I,s,S7. c. 1()7, s, 41 (:i). 
 
 (1) Where any securily, oliligatioii or covenant, or any interest in any real or 
 personal estate, ed'ects, or property, is given, or transferred to, made with, or vested 
 in the Minister, by virtue of his ollice, such security, obligiition or covenant, and 
 any rights of action in respect thereto, and all the estate, right, or interest of the 
 said .Minister in respect of such real or iiersonal estate, ellects oi' properly iipon the 
 death, resignation or removal Iroin ollice of the .Minister from time to time, and as 
 often as the case happens and the appointment of a successor lakes place, shall (sub- 
 ject to the same trusts as the sanie were i'es|ioct iviMy subject lol, vest in the succeed- 
 ing .Minister by virtue of this Ait, and shall and iiiiiy be proceeded on by any action 
 Oi- ill any other manner, or may be assigned, transferred or discharged, in the nanii! 
 of such succeeding Minister, as the same might have been (iroceeded on, assigned, 
 tr 'i.sferred or discharged by the Minister to. with or in whom they were (Irst given. 
 '. ■ -Tisfirred. made, or vested if he had continued to liold odlce. 11. S. (). 1887, e. 1(17, 
 .- -.1.':). 
 
 '■">( Kvery such security, obligation, covenant or interest in real or personal 
 .• . ;e, ed'ects and iiroperly may in like nianner as in the last secdoii mentioned be 
 proceeded on, assigned, transferred or discharged by and in the name of any uieni- 
 
ONTARIO ENACTMENTS. 
 
 751 
 
 biTottlie Kxt'cutive ('oiiiicil of Onliirio, iictinn under the .authority of section .'< of 
 Tin' Act ri'Kitecli III/ tilt; Kiecntirr Council. R. S. O. 1SH7, c. Uu, s. 11 (5). 
 
 (()) Sahsi'ction 1 of this section sliiilj apply lo every security, ohjii^iitioii or cove- 
 nant, and every interest in re.'U or personal estate, ell'ects or properly (.riven or trans- 
 ferred to, made witli, or vested in any former .Minister, by virtue or on account of 
 his otiice, and shall transfer all tlie interest, rifrlits and estate of the former .Minis- 
 ter to the present Minister, to be vested in him by virtues of his dHJce and subject to 
 tiie provisions of tliis Act. U. S. O. 1KS7, c. I(i7. s. 11 ((i). 
 
 (7) Where any company desires to substitute other securities within the intent 
 of section 11 for securities deposited wiih the .Minister, the Minister, if he thinks lit, 
 may permit the Hul)stitution to he made. I{. .S. (). ISS7, c. Il)7, s. 11 (7i. 
 
 4;l.— (1) .\ clejiosit of any amount not falliiifi below .'5."),0IH) may voluntarily be 
 »nade l)y any registered friendly society ; an insurance company may also volun- 
 tarily make a deposit in excess of (iie amount re(piired by sect Inn 11, and such fur- 
 ther deposit by the company shall be dealt with !>.■, if the same had been i)art of its 
 oriRinal deposit. Cf. K. S. O. 1S.'!7, c. 107, s. i-.'. 
 
 (2) .-Ml such voluntary deposits shall be made in the form prescribed by sub-sec- 
 tion 1 of section II, and no part of such voluntary depo>^its shall be withdrawn 
 except with the sanction of the Minister: Provided the interest upon the securities 
 forming; the deposit shall be handed over to the deposit in^ corparalion. H. .S. O. 
 1HH7. c. 1()7. s. V>. 
 
 44.— A company haviuR made a deposit under this Act shall he entitled to with- 
 draw the deposit, with the sanction of the Lieutenant-Governor in Council, when- 
 ever it is made to appear to the satisfaction of the I.ieutenant-tlovernor in Council 
 that the company is carrying on its business of insurance under license from the 
 Dominion of Camuhi. Cf. H. S. O. 1.S.S7, c. 1117, s. l:t. 
 
 45.— If from the animal statements, or oilier examination of the all'airs and con- 
 dition of any company, it appears that the re-insurance vatin' of all its risks out- 
 standing in Ontario, togethei' with any other liabllitie>( in Ontario, e.xceeds its 
 assets in Ontario, (including;' ihe (lep.>sit in the hands of the Miiiisien then the com- 
 pany shall he called upon liy the .Minister lo make good the dellciency .'it once, and 
 on failure so to do its license may be suspended or may lie cancelled, and in case of 
 cancellation, if a I'rovincial corporal ion. ils eorpnrale powers shall thereupon cease 
 and determine, except for Ihe purpose of windiu'.; up its all'airs as provided in sec- 
 tiod 7. I{. .S. O. l.'^'^7, I-. 11)7. s. II. 
 
 ■HI.— lOxcept in ca'-es with respect to which it may l)c otherwise pro\ided by the 
 T.ieutenant-fiovernor in Council, so long as any company's deposit is unimpaired 
 and no notice of any llnal judgment or order to the (•(uitrary is served upon the 
 Minister, Ihe interest ui)on I lie securities forming the dejxisit shall be h.iniled over 
 to the company. H. ,^. (). Iss7. c. Ii'i7, s. 1."). 
 
 17. Where n company fails lo niaki' the 'deposits under this Act ill Ihe lime 
 rciiuired, or where written notice has been served on the .Minisleiof an iitidisputed 
 claim ai'ising from loss insured against in Ontario remaining unpaid for the space of 
 sixty days after being due. or of a disjmted claim after linal judgment in a regular 
 course of law ami tender of a legal valid discharge being unpaid, so that 1 1"- amount 
 of securities i-epi'eseiil iiig the deposit, of the company is liable lo be reduced by sale 
 or administration of any iiorlion thereof, the license of the comi)aiiy ina> be sus- 
 pended, or may be cancelled ; but in case of sus)pension under this or the |)ieredirig 
 section the license may be revived, and the emnpaiiy may again transact business, 
 if within sixty days aller notice to the .Mini ter of Ihe company's failure to pay any 
 undisputed claim, or the aniounl of any linal judgment as provided in this section, 
 such undisputed claims or linal judgments upon or against the company in Ontario 
 
 ii 
 
 ■m 
 
jii::; 
 
 752 
 
 INSURANCE LAW OF CANADA. 
 
 
 
 
 iiri! paid 11 111 :ili'-lii'<l. iiiid llic I'lHiipaiiyV dt'iiosil is ?io loniji'r liiil)lo tci lie reduced 
 below the aiiiimiit i'e(|iiired by this Act. K. S. (). 1,SS7, e. KiT, ». Ki. 
 
 4H.— The securities depoHitecl with tlie Minister sliall be subleet tn adiiiinJHtni- 
 lioii Hilly ill respect of any contnict wliich falls \\ itiilii the intent of section 'J., and 
 which further liiis for iis subject some property in the I'rovinee, or property in 
 li.iiisit to or from the I'rovinci', or the lil'i', safety, health, Hdelity, or insurable 
 iiilerest of some resident of the I'r c irr-o. or wiieie the c-ontr.ict itself makes the 
 |i:iyiiieiii thereiiieler primiir..j ,.a_.a)a' ij ...juie residcnl of the I'rovinee. M.S. (). 
 1SS7, c. KiT. s. 17. 
 
 4(>. hIi I'lider an ordi'r of llic llii^h ("inrt any coiiiii my shalMie liable to liave 
 its <le|i'.>sii ill the li.inds of I he. Minister adiii'iilstered in manner heii'iiiafler nii'ii- 
 tioiied upon the failure of the comp.iny to pay any niulisiinted cliiiin arising iinder 
 any contract wit'.dn llie intent of section JS for the space of si.\ty days after lieinj; 
 due, or, if disputed, after llnal judgment and tinder of a lejial valid discliarne, and 
 tin either case) after notice tliereof to Liie Minister, mid to the rnsnraiice Uef^istrar. 
 in case of such administration, the whole deposit nf the company, held liy the 
 .Minister, shall, .liter tin- costs of iid mini si ration have been piox ided for. lie deemi'd 
 to be assets for i he holders of such contracts, whose rij;ht,s as anionic themselves 
 shall be determined a^ pio\ ided for in sub-sect ion I of section l!lL'. K. .■^. U. IKST, 
 c. IC'7. s. |,s (I I. 
 
 (Jl In any case wli-ie a. el.iim .iccriiiiiii on the oecnrrcnce of any event is by the 
 terms of the ooinr.ict pay.'ible on proof nf siieh contract, without any st i|iiilal('d 
 delay, the notice reipiired under this •miction shall not be .:;;iveii until after the lapse 
 of sixty days from the time when the claim becomes due. 1{. .S. O. 1SS7, c. Hi". 
 s. 4S (2). 
 
 ~iO. (ll Hefori' the applieatioii is made to ttic said Oouii for the administratiim 
 of a company's deposit at least ten days' notice in writ. inn of such intended applica- 
 tioii, sett inir out the (.'rounds thereof, shall be served on the .Minister, and also upon 
 the Insurance l!e>;isirar ; and the notice shall desij^nate sittiiiur of the Coiirl to 
 which ai)|ilicatioii is proposed to be m.ade, and shall state ihi' day nanied for the 
 heariii;;- of the .same. U. S. O. l.-<^s7, e. 1117, s. 111. 
 
 (2) If ail order for adniioislration is ermiled, the company sh.ili lie deemed In 
 have thereby become unrepisiered. In the casi- of a Provincial company, the u iinl 
 in^; up of the coni])aiiy shrill be deemed to have comineiiced under section !.s7 a> 
 from the date of the adniinistrat ion order. In the case of a foreiv.n or extra- 
 i'rovineial company, npoii motion of any person interested in the adminisiral ion or 
 of the Insurance H.'.iiistrar, t he .M-ister in Ordinary sli.ill a|iiioint a. eompeteni and 
 otherwise suitable person to be administrator, and in respect of the adininisi r.il ion 
 the said Master shall have l he lil;e powi isaiid duties as in the ease of a reeei\ ershiji 
 under this .\ct. oo \'. c. :ii), s. X], 
 
 51. Where a company has ceased to transact busines>; in Ontario, and lias 
 given w rii ten noliee to that edect to the Minister and to the Insurance Ue(j;ist rar, it 
 shall reinsure all such oiUslandiii.ij; contracts as are within the intent of section Isi 
 ill some company or coinpanies re,!.cislered to do business in Oiitaiio, or obtain a dis- 
 charfie of such contracts, ,ind its securities shall not be ilelivered to 1 he coiiijiany 
 until such reinsurance is cll'ected to llie salisfiiction of the .Minister. li. .S. O. 1,SS7, 
 c. 1()7, s. 51. 
 
 5'J. rpon making fipplieation for its securities the company shall (lie with Hie 
 Insurance Heiristrar a list of all contrac ts within section IS « hicli have not been so 
 re-insured or have not been discharged ; and it slijill at the same time publish in I he 
 Od^u'io (■•'((2f'//« a notice thai it. has applied to the I,ieuteiiant (ioveriior in Coiincil 
 for the release of its securities onacert.iin day, not less tlian three months after 
 
1 ! 
 
 i ( ' 
 
 uNTARTO ENACTMENTS. 
 
 7.V3 
 
 the date of tlie notice, mid culliii^t uiioii all cliiiumiits, contiDH''"! or iict ,iiil, opposinj; 
 the release to tile tlioir op|)osition with the Iiisniiuicc ReglNtiat' on or ticfon- tin ilay 
 so naiiu'd; and aftei' that day, if the Minister Is satisfied that the conipan.v lia> 
 ftini)le assets to meet its liahillties iiniler section IS, all the seeuiitles rnaylie icleased 
 to the company l)y nn order of the Lieiitenantdovernnr in Council, of a siidli lent 
 amount of then! may he retained to cover tlie claims Hied, and the 7-einain(h>r inn> 
 he released, and thereafter from time to time as such opposiii); claims lapse, or proof 
 is adduced that they luive heen satistied, further releases maybe made on the author 
 ity aforesaid, t'f. It, S. (). IKSY, c. 1()7, s, rrl. 
 
 
 has 
 
 •ar, it 
 
 >u IS 
 
 I liis- 
 
 ipain 
 
 ISST, 
 
 i,iii:nsin(; ok iNstnAXci: roMi-AXiiis. 
 
 5:i.— (I) All insurance corporations not heing the companies wltliin ih,. intent of 
 section i)!», and not heinf; friendly societies within the intent of secljo'i (id. shall, 
 hefore hecominji entitled to registry, olitein a license from the Minister, 
 
 (J) Ajiplicants for license shall llle with the Insurance l^j^isirar the documents 
 mentioned in sections i! and 17, .and also the documents hereinafter retiuired of an 
 ajiiJlicaut for registry; ami shall hefore license comply with the provisions of section 
 II relating to deposits, 
 
 Cfl As soon as the company api>lying for license has deposited the secniities 
 hereinl)ofore mentioned, and has otherwise conformed to the re(|Uiremenls of this 
 Act, the Minister may issue the lii;ense. H, S, O. ISS", c, 1(17, s. .is. 
 
 (I) The li<-ense shall he in such form as may he from time to time determined by 
 the Minister, and shall specify the business to be carried oii by the company: and 
 shall expire on the thirtieth day of .luue in each year, but shall be renc'wahie from 
 year to year. .V record of the licenses and supplementary licenses as they are issued 
 or renewed shall be ke))I in the ollice of the Insuranci Iteglstrar. It. .S. (). |s.s7, 
 c. 1()7, s. 57 ; s. .Vi (.")•; s. (10 CJ). 
 
 (.■)» liicensees under this section shall be entitled to be ri'gistered as provided in 
 sect ion ."jH. 
 
 ((i) Where a company desires to e.\tend its business to some other branch of in 
 surance within the intent of this Act. and has complied with the law in respect of 
 additional deposit and t)lherwise, the .Minister may, on the report of the Insuram e 
 Uegistrar, issue to the company a supplementary license authorizing it to nnch riake 
 such other branch of business. R. S. O. 1SS7, :i. 1(17. s. fit) (1), 
 
 (7) The provisions herein enacted as to the continuance, renewal, suspension and 
 cancellation of licenses shall ei|ually a|)ply to supiilementary licenses. 1{. S. (). Is.s7, 
 c. Kill, s. (id (Ml. 
 
 (S) .\lthoiigh a comp.my has ceased to transact b\isiness in Onl.-irio after the 
 notice by this Act rcipiired, and its license has in consequence been withdrawn, the 
 company shall nevertheless pay the losses arising from policies not re in>iired or 
 surrendered as If the license had not been withdrawn. It. .S. (J. Is,s7. c. I(i7. >. (il. 
 
 Ht;(ilSI'I!ATI()N lit' INSCIiA.VCt: lOlil'Dli ATIONS. 
 
 54. .\fter the Mist day of December, I.sit2, no insurance other than a^ enacted by 
 and for the purposes of Tlir l.iinil TilUs Art, and other than contracts of guarantee 
 undertaken by a company standing registereil under Tin' Lonii Curjioi-iitidns .Irf, 
 shall be transacted or undertaken in Ontario except by a corporal ion <lnly registered 
 as herein provided. ;)."> \'. c. :i!l, s. -i. 
 
 Provided that nosuperannuation or insurance or annuity fund, mainiged or con- 
 trolled by the Government of the Dominion of Ciinada for the oenelit of the civil 
 .service thereof shall recpiire to be registered, od V, c. 'M, s, 10 (8). 
 
 BB. Two registers shall he opened and kept as follows :— 
 
 (1) A register of the corporations enumerated in sections .")S and o'.t; this register' 
 
 48 
 
1 
 
 ft 
 
 764 
 
 INSURANCE LAW OF CANADA. 
 
 whicli 1 <a'- be known as "The Insurance Conipiiny iiegister," slmll be kept in the 
 oHIlc and under direction of the Inspector of Insurance, ."m V. c. 3i», h. 4 (1). 
 
 (•J» A rcKister of friendly societies authorized hereunder by certillcate of registry 
 to undertake insurance contracts, or contracts in tlie nature of insurance ; tliis re^- 
 i.ster, wliich may be known as '" Tlie Friendly Society Hcxister," sliail l)e kc|)t in 
 the oHice and under t lie direction of the Registrar of Friendly .Societies, who may 
 be tlie Inspector of Insurance, or such other person as the Lieutenant-Governor in 
 Council shall apjHjint ; and such assistants may, by the same authority, be appointe<l 
 a.s from time to time the ca.se reiiuires ; Provided, the (irst Registrar of Friendly So- 
 cieties shall be the Inspector of Insurance, oo V. c. 8!», s. 4 V>>, s. 11 (1». 
 
 (H» In this Act "Registrar" or " Insurance Registrar" means the Inspector of In- 
 .surance or the Registrar of Friendly Societies, according as the matter pertains to 
 an Insurance compauy or to a friendly society respectively. 
 
 .■»«. (1> The duty of determining and- distinguishing those corporations wliicli 
 under this Act are recpiired to be registered and are IcjjiHy entitled to registry, and 
 of granting registry accordingly, shall devolve upon the Insurance Registrar subject 
 to appeal as hereinafter provided. Ho V. c. UK, s. 7 (1), s. 11 (;i). 
 
 (2) For pnrpo.ses of his duties under this Act, or under any other Act relating to 
 insurance, the Registrar may require to be made, and nuiy take and receive atllda- 
 vits and depositions, and may examine witnesses upon oath ; and the Registrar sliall 
 have the same power to summons officers of corporations, receivers and liquidators 
 and other persons to attend as witnesses, to enforce their attendance, and to c()mi)el 
 them to produce books and documents and to give evidence as any court has in 
 civil cases, .w V. c :«!», s. 7 Ci) ; .58 V. c. M, s. a (4), s. .5. 
 
 I.NSfUA.NClO C'OMl^AXY KKIilSTEIi : WII.VT (OKl'OHATIONS MAY HE KKtilSTEBi;!) 
 
 THEKEOX. 
 
 o7. Insurance companies wliich, at the passing of this Act, stand duly registered 
 as such shall be adnii.ssible to registry on the Insurance Company Register. 
 
 58. (1) Insurance licensees of the Province of Ontario shall be entitled on the 
 issue or tlie renewal of their licenses to be registered, without additional charge, 
 upon the Insurance Company Register, and the fact of such registration shall before 
 delivery over of the license, original or renewed, be endorsed thereon. .5.5 V. c. :i!(, s. 
 5(1). 
 
 CD Suspension or cancellation or nonrenewal of the license issued under this 
 Act shall, /jAso /((c/o, and without notice from the Insurance Registrar, operate in 
 the respective cases as suspension or cancellation of registry. 55 V. c. HO, s. 5 (:i). 
 
 5». (1) Insurance licensees of the Dominion of Caiia<la may, upon due applica- 
 tion and 111)011 proof of such license sulisisting, be registered on the Insurance Com- 
 pany Register. .5.5 V. c. ."«), s. li (1) : 5S V. c. :ti, s. H (H). 
 
 (2l For purposes of this Act such licensees shall include corponitions authoiized 
 l)y any instrument or document issued prior to the Kttli day of April. ISil."), under or by 
 virtue of section ;i.S of 'I'/ic Iiisunincc Act tjf Ctinuihi, or Issued upon t lie security of 
 a substantial deposit under section Hi) of said Act, or issued under other iiiovisions 
 thereof upon such security; and every licensee licensed under or by virtue of The 
 IiiKiifd nee Art of Viin(t(lit shall lie deemed to be a corporation for the purposes of 
 registration under this section. 55 V. c. ;U). s. (i (2) ; .5H A', c. .H4, s. H (H). 
 
 (I{) Where a corporation licensed orauthorized under section li'Jof Thr Jiisitraiice 
 Act of ('n)iaila is registered under this Act, every jiollcy and certillcate issued and 
 used in Ontario shall conform and be subject to '.lie provisions of the said section ; 
 and upon any contravention of the said seil ion the corporation shall be liable to have 
 its registry under this Act suspended or cancelled. .55 V. c. HI), s. 41 (i). 
 
 (4) .Suspension or cancellation of the authorization of a corporation under 77ie 
 
ONTAUIO ENACTMENTS. 
 
 755 
 
 liiMiiranre Act of Cniiiiriii Hliall, i/ino faf/o, and without iiotici' from tlie Ileffistriir, 
 operate in tlie re-^pectivi' caso as .MispiMi.-.ioii or I'lincelliilloii of rt-nislry iinclcr lliis 
 Act. .v. V. c. :K», s. t((:it. 
 
 I'lvivided, that wlimi, after sucli suspension of authori/atlon uncier T/if Tn.iiir- 
 aiire Acf of ('iiitndii, the corporation luis under llic said Act heeii permitted to revive 
 its authori^cation, tlie Hcxistrar may jrrant a revivor of registry and issue his certill- 
 cate of I lie same, "ki \'. c. :ti>, s, (> (:t). 
 
 (5) I'orporalions, companies or insurers wilhin tin- intent of section :i un. or '.i'l of 
 '/'/!)■ /iisiiriinci- Art of ('afiinlii, nuiy, upon due ap|)lication, lie admitted to ic(^istry 
 as if licensed under the said Act. .")<i \'. c. ■i'l. s. II) (.">), 
 
 ((1» I'pon due application of any underwriter of the estalilishuient or society 
 known as F^loyd's, and more particularly descrihod in an Act passed hy the Parlia- 
 ment of the United Kingdom in the rhirty-fourtli and thirty-fifth years of Her Ma- 
 Jesty'.s reijjn, and chaptered 21. or upon due appli(!ivt ion of Hiiy such underwriter's 
 hrokcr, or broker's aK*'nt, such niulerwritcr, liroker or a'.^cnt may he registered for 
 the undertakinK aiul transaction of marine insurance. 5)) \'. c. H2, s. 10 (.-)>. 
 
 (7) For purposes of the two next preceding; sulj-sections, the term of annual re- 
 gistry shall coniineiice and end at the respecive dales hereinafter prescribed in the 
 case of insurance licensees of the Dominion of I'auada. i)!i V. c. ;{2, s. Ill |.")). 
 
 iiirance 
 
 led and 
 
 iection ; 
 
 to have 
 
 fkii:n"D1.v sociktv iii:iii.sTi;ii : wiia r ( ohpokations may nt; ukiiistkkki) tiii;iiI';()x. 
 
 «0. — In addition to friendly societies standing duly registered as such at the 
 passing of this Act, the following shall be admissible to registry on the Friendly 
 Society Ilegister : 
 
 (1) Societies from time to time incorporated by virtue of secti(uis H:t, :il, 'M, :t7 
 and :IH of this Act. 
 
 (2) Any corporation not provided for elsewhere herein which has, by virtue of an 
 Act of the Parliament of C'anada. an insurance and provident society or association, 
 or an insurance or guarantee fund in connect ion with t he corporation, may upon due 
 application for registry under this Act, be registered on the Friendly Society Register, 
 ill") V. c. :«», s. !( (2) ; ;>! V. c. HI, s. ."> (1». 
 
 i;t) Any lawfully incorjiarated trades union in Ontario whicli, under the aiilluirity 
 of the incorporating Act, has an insurance or beiiclit fund for the benelir of its own 
 members exclusively, shall, upon due aiiplication for registry hereunder be entitle<l 
 to be registered on the Friendly Society Hegister. ."m V. c. -H). s. !) i;ii. 
 
 Provided, that where any hotia /hie trade union or labor organization jirovilesby 
 jt8 constitution, by-laws or rules for the assistance, relief or support of its members, 
 the Hogistrar may, by writing, under his hand and the seal of his ollicc, declare the 
 oruanization exempt from tlie operation of this Act ;and such certilicate sh.ill remain 
 valid until by like writing revoked : and the organization so exem))tcrl shall not be 
 .subject toany penalty imposed by this Act. .">.") \'. c. :i(), s. !l (I!) : ."ili V. c :i2. s. 10 (7)_ 
 
 (4) Any corporation in Ontario which at the i)assing ot this Act has uiiilei- aii- 
 thority of an Act of Canada created a fund I'oi' jjaying a gi-aluity on the hapjiening of 
 death, sickness, inllrmity, casualty, accident, disability or any change of physical or 
 mental condition, shall, upon due application for registry hereunder, be entitled to 
 be registered on the Friendly Society Hegister. "m \'. c. '-V.K s. 1) (t). 
 
 (.")) Any association of the civil servants or employees of the Dominion of Canada, 
 incorporated by virtue of an .\cl of the Parliament of Canada may, ni)on due applic.'i- 
 lion, be admitted to registry. ">li V. c. ;!2. s. 10 (7). 
 
 (0) When and so long as any other Province of Canada by virtue of recijirocal law 
 admits to that Province lupon the like terms as in this section siieciliedl friendly so- 
 cieties incorporated by Ontario, the friendly societies of such Province may be ad- 
 mitted to registry upon due application and compliance with section II as io de- 
 posit : 
 
 mi 
 
 . i 
 
 i 
 
756 
 
 INSURANCE LAW OF CANADA. 
 
 I'ldviilcil ilml noappliciint under lliisHiili sfctimi sli;il) Im^ ndiiiiKsihlc ti rfKi--ti'y, 
 initial or ii'iu'weil,- - 
 
 {(1) I'll less the tipplldint IhkIv Ims fni- I lie live years next prrcccliiiK il-- applii-ii- 
 lion foiiliimoiixly lit'cii in iicl uai iind Mit i\ e opnal ion as a solvent 
 corporal ion in lliat I'lovincc of Canada under the law of which it was 
 Incorporated; also tliat at tlie I iine of its applical ion it is mt in a 
 condition of actual or iicMcudinn insoh ency. 
 
 ill) If it undertakes insnrancc, or insurance benefit contracts with persons 
 other than its o« n inend)ers; or 
 
 ir) If it insures or indenmilieM aj^ainst contingencies other than sickness, 
 disahilily, ord<'alh : oi funeral expenses ; or if the sum or sunis in- 
 sured on the life of any one ptu-son exceed in all .sCt.tKHl; or 
 
 ('/) If it undertakes any endowment insuranei', or any endowments what- 
 ever ; or if it undertakes any aniniilies « hat soever on lives; or 
 undertakes investment liond m tout ine, or semi tontine, or mairiaue 
 aid <onlracts ; ur 
 
 ((■) If the corporation lias in iiood slandiiiL: upon its hooks less than live hun 
 drcd nuMidiers ; or 
 
 (/'i If the corporation is in efTect the properly of its ollicers (U' collectors, or 
 lielonnH to any private proiirietary ; oi- if the eorpm-alion is conducted 
 as a trading or mercantile venture, or for imrpo.ses of commercial 
 irain ; or if the fun<ls of I he corporation are in I he control of persons 
 holdinj; ollice for life, or if the fuiuls are imt in the elVeetive eontiol 
 of the persons insured ; and 
 
 (;/) lidess the applicant hody (when the aliplicatioii is made after the :tlM h 
 day of June. ISit.S) provides for its contracts upon lives to at least the 
 extent of collecting from its nu'inbers premiums respectively not less 
 than those .-et out in Schedule A to this Act, and is collectinn in ad- 
 dition to the said prenunms such further sum as is rcasoiiahly sulli- 
 cient to provide for the expenses of management. 
 
 On proof of the forcLroinj; ami on production of the ee?tilicate of rctristry of th" 
 proper ollicer (d its o« u Province- if re^;istr.\ is ri'(|uired hy the law of that I'rovince 
 --the society shall he entitled to rej^istry under this Act, and from year to yi'ar the 
 society shall show that it is then in jjrood standin^r under the law of its own 
 Provinc(^ 
 
 HI. (1) Any incorporated company staudinf? registered under this Act, having 
 not less than twentytive ollicers, employees or servants, instead of takin;;- private 
 sureties or the bonds of a guarantee company, may, by arrangement with its em- 
 ployees, contract to insure thi'ir lidelity by means of a guarantee fuinl provided as 
 ma.v be agreed oul of the sala Mes or wages of such ollicers, employees or servants, 
 the whole to be conducted under rules and a form or forms of contfact approved in 
 writing by the Insurance Uegistrar, which may from tinu' to time be aiTiended 
 under his direction or with his assent in writing, aiul such lules and forms, original 
 and amended, shall from time to time be tiled and indexed in the odice of the I'ro- 
 vincial Uegistrar. .5S V. c. ;tl, s. 10 (I). 
 
 (2» The said company may upon due aiiplication be ai'initled to registry upon 
 the Friendly Society Hegister, and may from time to time upon due application so 
 made renew its registry, but unless and until so n-gistered, ami unless it stands 
 registered, the said company shall not uiuU'rtake. nor agree or oiler to undertake, 
 any tout ract by this section authorized, or within the intent of this Act, and the 
 term of registry shall he as provided under section (i!» of this Act. 58 V. c. ;tl, s. 10(2). 
 
 (3) The fees payable to the Provincial Treasurer in respect of the said registry 
 shall be the same as provided in sub-division 1 of division III. of section li)7 of the 
 Act, except that as to the certiflcate of registry (original or renewed), the fee shall 
 be ?10. 5« V. c. :14. s. 10 (:t). 
 
nrn 
 
 ONTARIO RN\CrMENTS. 
 
 757 
 
 I 
 
 (12 Till' followiiij; sliail imt In- cntillfd tn rc^iinti'i- iis ii fiieiully soi'ii'ty ; - 
 
 (U Any corpoiiitiim within llic ini-uiiini; of Hcctioiis .".S ,tiict T)!!, dp liii-iiscd or re- 
 
 iiuiri'd liy l;i\v tn In- liccnsci' for \\\i- transact ion of Imsini'ss us ,in insuntinc i-orpora- 
 
 tion. 55 V. c. :«», H. IcJ) <i. 
 
 (2) Any <or|ioriition. I'XL'tfpl iis cimcli'd in sni) si'ition I of section (i(l, li.iviny; 
 clmrjif of, or nmniiKi<iK. "i" <liHtril)ulin;; cliMrii \ . or Ki'^'lnii ics, or don.itions nnly. 
 55 Vic. c, ;MI, s. 4 CJ) '». 
 
 I'rovidt'd, lliat wlicn- licfoi i in- lllli day of Mjircli, 1S!I1. a corporation <!s in- 
 cor|>or,itcil under '/'lir Ail rin)iirli>i(i llinvrolinl, l'roriilf)il iiml o/hir Sorli firs, for 
 tlic purpose of Itcslowinj.; uratuilics al <li'atli or on tin- liappi'iiinu; of sickness, 
 inllrniity. eustnilty. .lecidenl, disaliility. or any clianv'e of physical nr menial ci.n<li 
 lion, and il is in the opinion of I In- Ue^'istrar desiraMe that sieli payincnis slionld 
 he made matter of coniractnal ohlij^'alion. tin' corporation may for lliis pnipu>c 
 
 jimernl ils const it uti ir rnli-s as sliall he directed hy I he Uc),'isirai' nmler liis hand 
 
 and the seal of his ollici' ; and if, « illun the time limited in the HcKiHirar's direc 
 tion, tin- corporal i(»n tiles in tin- ollice of tile Provincial Ue>;istrar, the said direction, 
 and a declaration, verilled hy I lie oat li of its. secretary, or other proper olllcer, setting 
 out the amendments so directed and made in llii' c(msiiiulion or rules with the 
 date (.f the said amendment ; then, upon proof of such lilin^', I he He;.'istr.ir may 
 admit the corporation to registry as a friendly sociel\. 55 \'. ( . :!!i, s. I {-Jit : "i.s \'. 
 c. :U, s. .U-1). 
 
 l'r>iviiled also, ill any case of donlil where the hiinii Jii/i- intention of a society is 
 ot atlbid charitahle aid or relief, and not to en-ale t-il her any contractual rifiht in 
 tin- memht-rs or any contractual ohlipition ajiainst the .society, upon the HO(-iety 
 niakin;;such intention apparent in ils rules ami puhlications (hy such aniendnient, 
 if necessary, as the Heuislrar shall direct), the lU-^istrar may hy wriliiiK, under his 
 hand and the seal of his ollice, declare the (ULtani/ation r xempi from I he operation 
 of this Act, ami such certilicale shall remain valid lint il liy like writliit; revoked, 
 and the society so exempted shall not he siiliject to any penalty imposed hylhis 
 Act. 5(> V. c. -.fl. s. 10(1). 
 
 (3) Any corporalit i undertaking or olVeriny: to undeilake iiisiirame other than 
 contnu-ts of insurance made exclusively with its own memhers ajiainst sickness, 
 accident, disahilily. iiilirmity, or old ane. or for uiorluary or funeral henelits, or con- 
 tracts for the lidelity of ollicers, servants, or employees of the corporation (includin;f 
 hranches or suhdivisions thereof), or for a sum or for collective sums not exceeding 
 ^:!,(Mill in all, payalile at tin- ileal h ■>( the assured. 
 
 I'rovided. that upon proof of a friendlv society duly iiicorpoi'.iled. ortj;aniv.(-d and 
 operated under the law of Ontario or of Canida hefoie t he eleventh day of .March. 
 1S!H). that the society was ,it the said d.iU- transact ini: exclusively wlih ils ineml>i'is 
 endovvment insurance in l)ntario. Iimiti liilr. and has so continued up to the dale of 
 application for re;j,isliy, the l!efj;istrar shall have authority to admit the society to 
 rej^islry as a friendly society transactiiifr I'lidownient insiiraiKc accoiilinji lo the 
 terms of the- certilicate of retjistry. 55 \'. c. :iil, s. ( C'C ii). 
 
 I'rovided, al.so, thai contracts enlcierl into hel'ore tin- I'ourleeiilh day of .\pril, 
 lS!t2, sliall nol h.-rehy he inv.ilidaled. 55 V. c. :«l, s. I rlC li\. 
 
 ( I) .\ny coiporation in whieli the persons insured numlii-r less tliaii : \miiI y live : 
 or in which the insurance fund is used as a tradinu: or mercantile veni inc. or for 
 purposes of commercial or iiri\at(- ;;ain: or any soi iety or.iranized on the lod<;e 
 system, the insurance funds of wliii-h are Ik-UI oilier than as trust funds for ihe 
 niemhei-s insured hy the society. 55 V. c. M'.i. s. I ciDi. 
 
 fl:i. -(I) No friendly society heretofore admitted to registry as heinij; then wKliin 
 the intent of The Art rriprrfini/ linicvoli'iit, Proriilrnf ani/ other Sorirtiin, and 
 also within the intent of Tlir Inxnranrr Cor jiiirnt Inns Art, />'■'*.', shall he ileemi-d to 
 he iiianaj?ed and operated according; to the true intent of the said Acts, unless the 
 jiersoiis insured in or hy the society exercise-, eillu-r directly or through reprc-senia 
 
WW 
 
 758 
 
 INSURANCE LAW OF CANADA. 
 
 lives elocUMl for ii term not exoeediriK three years, eft'ective control over the in.sur- 
 iince fiiixlH ot the society; and no corporation whatsoever, wherein the persons, wlio 
 by virtue of tlieir olHce liave tlie disposition, control or possession of the insurance 
 funds hold such oHice for life, shall be eligible for registry as a friendly society under 
 this Act. .55 V. c. at, s. 8 {•>). 
 
 Provided that, where a corporation otherwise entitled to registry under this 
 Act, is, in the opinion of the Registrar, debarred by reason of some particular clause 
 or clauses in the rules of the corporation, tlie corporation or the executive board 
 tiiereof (by whatever name known*, may, under the direction of the Registrar, 
 amend its rules in like manner as provided in subsection 2 of section (i2 of this Act ; 
 and thereupon the Registrar may admit the corporation to registry as a frieni.iy 
 society. Tw V. c. :{9, s. H (2); .W V. c. M, s. :((5l. 
 
 (2) No society applyin/j; for registry or renewal of registry by virtue of its incin-- 
 poration under anv Act of Ontario shall be deemed to l>e entitled to be registered on 
 the Friendly Society Regis'er unless its head otiice is situated and maintained in 
 Ontario, and unless the secretary and treasurer are boiiti Jiiic residents of the Pro- 
 vince. This subsection shall take ed'eci (,ii, from and after the 1st day of .lanuary, 
 isy.5. .5(! V. c. H2, s. 10 ((}); iW \'. c. :t4, s. 'i (li>. 
 
 phocekhixcs tij kkcistkv: nrnATiox of itiaiisTKV. 
 
 0-4.— (1) Application of any insurance corporation for initial registry under this 
 -Vrt, shall be made according to a form to be supplied by the Registrar on requesi, 
 and the applicant shall deliver to the R""i;-,ti-ar at his oHlce the application, duly 
 completed, together with such evidence as ,he form l)y its terms rei|uires, and the 
 api)licant shall furnish such information, material and evidence, or k'vc such public 
 notice of the ap])lication as the Registrar shall direct: in (he case, of corporations 
 transacting or undertaking, or od'ering to undertake or transact insurance in On- 
 tario at the Mth day of April, 1S!)2, such corporation shall have made due applica- 
 tion for initial registry on r ; before the MOth day of .lune, 1H(I2. .55 V. c. H!), s. 12 (1). 
 
 Provided tliat the material required of a friendly society by this subsection 
 shall incbnle duplicate certitied coi)ios of the constitution, laws, rules and regula- 
 tions of the society, and also of Ontario branches thereof, which documents shall be 
 tilcil with the Reiiistrar, as shall also all amendments thereto made from time to 
 time thereafter. ."> \. c. :«t. s. 12(1). 
 
 (2) On sutlicient cause shown and upon payment to the Provincial Treasury of 
 the fee hereiiuifter prescribed, tlu' Registrar may by writing under his hand and the 
 seal of hisotlice extend the time for the delivery of an application, or for the prose- 
 cution or completion of an application already delivered or tendered. .Vi \' . c. :fll, 
 s. 12(2). 
 
 0.">. - The aitplicant corporation not being a corporation within the intent of 
 .sections TvS and .")!) of this ,Vct, shall further ileliver to the Registrar a statement in 
 such form as is r('<|uired by the said ollicer of the tinancial condition and all'airs of 
 the corporation on the :!lst day of December then next preceding, or up to the usual 
 balai •' g day of the corporation, if such balancing day is not more than twelve 
 nionl -. oefore the tiling of the statement, and such statement showing the corpora- 
 tion to be solvent shall l)e signed by tlu' president and secretary or other proper 
 oltlcers of the corporation, and shall be veritled by their oath. •">■"» \'. c. :«•, s. |;t. 
 
 «H.— (1, Where any corporation applying for initial registry has its head ollicu 
 elsewhere than in Ontario, its appllcati<m fen' registry shall be accompanied by a 
 power of attoriu'y from the i orporation to an agent resident in Ontario ; the jHiwer 
 of attorney shall be under the seal of tiie corporation, and be signed by the presidents 
 and secretary or other proper ollicers thereof in t he presence of a witm'ss, who shall 
 make oath or altlrmation as to the due execution thereof ; and the ollicial positions 
 in the corporation heltl l>y the ollicers signing such power of attorney shall be sworn 
 
w 
 
 ONTARIO ENACTMENTS. 
 
 769 
 
 i i 
 
 o or ftfflrniefl by some person cognizant of tlic facts necessary in that behalf. R. S. O. 
 1887, c. Ki", s. 58 (1) ; 55 V. c. :«), s. 14 (1). 
 
 (2) The power of attorney shall declare at what place in the I'lovlnce tlie chief 
 agency of the corporation is or is to be established, and shall expressly authorize such 
 attorney to receive service of process in all .actions and proceedings aKaiii.-t tl c cor- 
 poration in the Province for any lial)ilities incurred by tiie corporation therein, and 
 also to receive froni the Registrar all notices which the law retpiires to be given, or 
 whicli it is thought advisable to give, and shall declare that service of process for or 
 in respect of such liabilities, and receipt of such notices at such otHc^- or chief agency, 
 or personally, on or by such attorney at the place wlierc such chief agency is estab- 
 lished, shall bo legal and binding on the corporation to all intents ami purjioseH 
 whatsoever. .55 V. c. :«), s. 14 (2) : H. S. <). ISST, c. 1()7, s. 5:1 (2). 
 
 (3) The power of attorney, duly executed, shall be tiled by the Registrar in his 
 oftice. .55 V. c. :«>, s. 14 Ci). 
 
 fl7.— Whenever the corporation changes its chief agent or chief agency in the 
 Province, the corporation shall tile with the Registrar a power of attorney as he rein- 
 before mentioned, containing any such change or changes in siich respect, and con- 
 taining a similar declaration as to service of process and notices as hereinbefore men- 
 tioned ; and every corporation shall at the time of making the suuiinary or annual 
 statement hereinafter provided for, declare that, in its charter, act of incorporation, 
 deed of settlement, or instrument of association, and in its constitution or rules 
 made thereuiuler, no amendment or cli.-inge has been made allccting its insurance 
 contracts undertaken or to be undertaken ; or if such change made, specifying 
 dearly the change, and that no change lias been made in the chief agent or chief 
 agency without in either case such amendment or change having been duly notilied 
 to the Registrar. .55 V. c. .i9, s. l(i ; R. S. O. 1SK7, c. 1()7, s. 5:5 (:!). 
 
 «H.— (I) Afler the power of attoriu'y is liled as aforesaid, any process in any 
 action or proceeding against the corporation tVtr liabilities incurred in the Province 
 may be validly served on the corporation at its chief agency, and all proceedings 
 may bo bad thereon to Judgment and execnitiou in the same manner and with the 
 same force and ellccl as in the proceedings in a civil action in the I'rovince ; Pro- 
 vided thai nothing herein contained shall render invalid service in any other mode 
 in which the corpor.ition may be lawfuiiy served. .55 V. c. Hit, s. 17 (I) ; R. S. (). IH'^7, 
 c. 107, s. 51 111. 
 
 (2) If the power of attorney becomes invalid or ineU'ectiial from any reasnii. or if 
 other service cannot be ctlected, the Court or a .Indgc nmy order substittilional ser- 
 vice of any process or proceeding to be made by stich publication as is deemed re- 
 quisite to be made in the premises, for at least three we<'ks, in at least one news- 
 paper, and such puldication shall be held to be due service ui)on the ((U puratinn of 
 such process or proceeding. .55 \'. c. lilt, s. I" l2l. 
 
 (Jt) Where, at ov afler the lllh <lay of .\pril, I.sil2, a friendly sdcicly having its 
 head ollice elsewhere than in Ontario bad or has in the chaige, possession, custody 
 or power of ollicers or .agents, resident in Ontario, a reserve fund or funds for the 
 s(a'urity or assist.i.ive of meinliers of i he society, stich fund or funds shall be deemed 
 to be a fund held in trust for ini;mbers in the jiirisdiitimi of the said ollicers lU" 
 agents, and the said olliiers (U' agents shall be tieemeil and shall confiime to be 
 trustees of the said fund or fuiuls until other trustees thereof resident in Ontario 
 are appointed by compeleiil aulliority; and such trust tnnd nr funds or as much 
 thereof ,is from lime to l ime rein.iiiis unexpended shall be invested as eu.icti'd in 
 s<'clion i)2 of 1) 's Act. .")5 V. c. ;«t, s. 17 l.'t). 
 
 H»>. (1> On the Insuram'e Conipan.v Register, or on the Kriemlly .Society Register, 
 a .ne case ma; be. the Registrar shall cause to be entered the n.ime of every cor- 
 poration which from t ime to 1 inu' he shall tiiiii legally eid it IimI to regit ry, together 
 with the date of the commencement of registry; also the term for which, in tlK; 
 
 !M 
 
 '! 
 

 iGO 
 
 INSURANCE LAW UF CANADA. 
 
 iihsiMK't' of suspension, revociition or canci'lliition, llio registry is to puilure ; wliicli 
 tt'riii sliiill l)i'j;iii as from tlie date of tlie saiil coinnu'iicciiicnt and shall end not later 
 than the :<(llli day of .lune then next eiisiiinij;, I'XL'cpl in tliei'ase of tlic corporations 
 mentioned in section nil of this Act, and in the saiil ex('ei)ted corporations the tern) 
 of rctcistry shall not exceed twelve montlis : he shall also cause lo be entered llie 
 place where the liead ollice and the chief agency, if any, of the eorporation are sitii- 
 ateil, and if llicre is a chief agi^ncy, the name and address of the chief agent ; also the 
 kind of character of insurance for which the corporation is registered ; also if during 
 the I erm the registry has been suspen<h'd, or revived, or revoked, or eancellf-d, tlte 
 ilati' and authority for such suspension, revivor, revocation or cancellation. ."> V. e. 
 :«), s. 18 (I) ; 5S V. c. ;14, s. 5 (H». 
 
 (2i To all cori)orations registered as above, the Hegistrar shall issue under his 
 hand and the sea! of his ollice a cei tilic:ile of registry or of renewed registry, as the 
 case may he. setting forth that it has been made to appear to him that the corpora- 
 tion is entitled to registry as an insurance company or friendly society (as tin- case 
 may he) un<ler this Act, and that the corporation is accordingly registered for the 
 term aiul for the purposes stated in the cei'tilkvite. .m \'. c. :VX s. \X (l'i. 
 
 "<>. (I) In the case of t' ose corporations mentioned in section ")!! of this Act. 
 which receive from time to time a license or other docunu'ut of authority under 'I'lir 
 /iisitrtnici' Art of Cantitla, the corporation shall annually after its tirst registration 
 hereunder present to the Registrar the then subsist ing document of authority, 
 within thirty days after the date thereof, and ui)on due presentat ion of the same, 
 and upon payment to th<' Provincial Treasurer of the fee hereinafter prescribed, may 
 be admiMcd to registry hereuntler. or lo i-enewal of registry, as the case may be. and 
 in default of registry or of renewal of registry within the said thirty days, the cor- 
 p<uatioii >hall be deemed lo be \inregistered. .V> V. c. :<!>, s. Ill (1) ; .■>.•< \'. c. H4, s. 5 (I). 
 
 Provided that such |)resenlation may be dispensed with on the Registrar receiv- 
 ing from the proper otlicer of the Dominion of Canada notice that such license or 
 document of authority has in fact issued to the corporation named in the notice and 
 authorizes the transaction of insurance of the kind and for the term specilied in the 
 notice. 55 V. c. :«). s. liMlt. 
 
 (2) The suspension or can<'ellMt ion or nonri'newal of such document of authority 
 i'-sue(l under '/'/ir Insurn iia Act nf Cinidihi. or issued by any Province of Canada to 
 an insurance corporation standing registerc(l in Ontario, shall in the respective 
 ca.ses operate (/>.s« yV/(7(( as a suspension oi' cinccllal ion of registry under this .\et, 
 but registry so suspended nniy be revived as provided in this .Vet. 55 \'. c. :!!i. s. I'Jci). 
 
 7 1. hi the case ol all corporations other than those in the section 5!) mentioned, 
 any eertilicate of registry issued under this Act not being an interim or an extended 
 certilicate, shall, unless sooner siisi)endeil or cancelled, remain valid until the then 
 next issuing thirlietli day of June ini'lusive. when, if the corporation has fll(>d the 
 sunnnary statement re(|uired by sei'tion !(l. and the annual statement prescribed in 
 section 111), as the case may be. and also properly certitied copies of all amendments 
 to its const itulion. laws, rules and regulations maih' since t he next preceding sum 
 mary or annual statement, and has ollierwise complii'd with the law. the corpora 
 (ion shall be entilleii to a eertilieati' of renewed registry, and so on every succeeding 
 thirtieth day of .)une thereafter. 55 V. c. :«». s. -Jb. 
 
 71!. — Upon |U'ih;' that a corpornticni has by accident or un.ivoidable cause been 
 jirevenled from full; complying with the iiiovisjons of this Act within the time 
 herein prescribed, aid upon payment to the Provincial Treasurer of the fei' herein- 
 after enacted, the Registrar may by writing under liis hand and (he seal of his 
 ollice, grant for a ('me limited therein an interim certideale of registry, or may by 
 such writing extend for a limited time the duration of a subsisting cert ideate of 
 registry ; but in default in either case of renewal of registry before the e\pii> of the 
 ( ime so limited I he corporation shall be deemed lo be unregistered. 55 \'. c. ;tll, s. 21 . 
 
ONTARIO EXACTMENTS. 
 
 761 
 
 7.'J.— N'o foriinration sliall l)i! registered under a name identical with that under 
 whicli any otiier existing corponition is registered, or so nearly reseini)liiig sncli 
 name as to he likely, nor shall he registered under any other name, likely in the 
 opinion of the Registrar, to deceive the members or the puhlic as to its Identity : 
 and no registered corporation slmll be registered under a new or a dill'erenl name 
 except upon proof thai such a new or ditl'crenl name is aulhorized by law. ."m \'. c. 
 ;«», s. liH. 
 
 m 
 
 i :i! 
 
 ■en 
 me 
 'iii- 
 his 
 
 I'.V 
 of 
 hi- 
 
 I'llOOK OK ItKIIISI in- AND (IK Ul'llKIt M AT IK US I NOIKKS INIIKH IIIK A< T. 
 
 74.— (1) The Hegistrar shall cause to be iiubli>.hed in the (Jiildiin (la-:itti\ in 
 March of each year, a list of the corporations which stand registered al the date of 
 the list : also if, in the interval between two published lists of registered corpora 
 lions, a new corporal ion is registered, or the registry of any corporal ion i.>,sus))e tided 
 or cancelled, or if a suspcikUhI regist ry is revived, he shall cause notice thereof to be 
 published in the Ontario (liir.ettc. Tm \. c. :{!l, s. 2() (1) 
 
 i'Z) A list or notice i)ublished in the Oiilnrio (luzittf over the name of the Regis- 
 trar, shall, without further proof, be received in any t^ourl and liefore all .luslices of 
 the I'eace and others as /irinia J'licir evidence of the facts set forth in such published 
 list or notice. .V) V. c, :!!>, s. ai [2). 
 
 (It) All coi)ies of returns, reports or other olliclal publicatioiis of the Registrar 
 purporting to be printed by the I'rinter to the frown, or Ihel'rinler to the I-egis 
 lative Assembly, or to lie printed by order of the liCgislativc .Vssembly, shall, with- 
 out further proof, be admitted as evidence of smdi piil)licat ion and i>rinting, and as 
 true copies of the original documents delivered to be printed and published. .V) V. 
 c. :«), s. :!() (:)). 
 
 (1) The seal or signature of the Regisiiar shall be admissible in eviilence with- 
 out furthei' proof of its authenticity ; or of the odicial character of the person sign- 
 ing. 5.-. V. c. :«), s. 2(i(l). 
 
 (.5) A certilicale under the hand of the Registr.ir and the seal of Ids ollice, that 
 on a stated day the corponition nv person inentioiicd therein stood registered, or 
 did not stand registered within the meaning of this .Vet, or that the registry of any 
 corporation or person was originally granti'd, or was renewed, or was suspended, or 
 was revived, or was revokeil, or was cancelled on a stated ilay, shall be /irhiiii fiicir 
 e\ ideiico in any court or elsewhere of the fads alleged in the certilicale. ■")."> \'. c.:i!l. 
 s. 2'i (.")». 
 
 (dl I'lvi'iy certilicale of registry granleil under this Act shall specify the llrst 
 day. and also the hist dav of the lerin for which the corporation or person is revis- 
 leied : and the corporation or per.son so regislereil shall be deemed to lie registei-ed 
 from the commencement of the tirsi d.iy to the end of the last day so sjiecilled. ."i-'i 
 \ic. c. ;lil, s, 2.T (lit 
 
 (7i Copies of or extracts from any book, record, instrument or document in the 
 ollii'c of the Registrar cert ilied by him to be true copies or extracts and sealed with 
 the seal of his ollice, shall be held to be autheiil ic, and shall be itriiuii I'lirir evidence 
 of the same legal elVecl as the original in any t'ouit or elsewhere. R, S. (». 1.SS7, 
 c. KiT, s. j.'ii): .Vi \'. c. ;!ii, s. ;ii!(7i. 
 
 (Ml Kor purposi's of this seclion Itegistiar shall Include the Depuly or Assist.iiit 
 Registrar. .Vi \'. c. :«•. s. -Jii im. 
 
 (ih In the case of any documenl . by I his .\ct or by .iny of I he Acl s ment Inncd in 
 schedule hereto, reipiired to be llled in the ollice of I lie I'rox iiicial Rigisiiar, a icr 
 tilleale of II ling shall he /iriiiiti t'ncir evidence of the liling if signeil or purport iiig 
 to be signed bv the Deputy or .VssistanI I'roviiicial Registrar, or by the acting 
 Deputy or assistant. .JS \' . c. Itl. s. ') {S), 
 
 dm The books, accounts ami docnmiMits of the corporal ion. and entries in llie 
 books of its ollicers or receiver or liipiidalor, are iirii»(i jdrif evidence of the mat- 
 ters to which the entries relate as against the corporation, or any of its branches, or 
 
762 
 
 INSURANCE LAW OP CANADA. 
 
 lodges, or ii.« between any of the branelies, lodges or their respective nicinbers, or iw 
 between contributories or alleged contribiitories. 5(( V. c. H4, s. 5 (8). 
 
 (11) All by-laws of the corporation shall be reduced to writing, and shall have 
 alHxed thereto the connnon seal of the corporation, and any copy or extract there- 
 from, certilled under the signature of the presiding olllcer, secretary or manager, 
 shall be prima facie evidence in all civil Courts of Justice in Ontario of such 
 by-laws or extracts from them, and that the same were duly maile and are in force ; 
 and in any civil action or proceeding it shall not be necessary to give any evidence to 
 prove the seal of the cor|, oration, and documents purporting to be sealed with the 
 seal of the corporation, attested by the presiding otlicer, secretary or manager 
 thereof, shall be held priina facie to have been duly sealed with the seal of the cor- 
 poration. R. S. O. 18H7, c. Iti'J, 8. 75. Sec also 87 V. c. 50 (1).), s. i). 
 
 7o.— S\ibject to Statutory conditiim 2:) of section KtH, delivery of any written 
 notice to any insurance corporation for any purpose of this Act, whore the mode 
 thereof is not otherwise expressly provided, may be by letter delivered at the chief 
 ollice of the corporal ion in Ontario, or by rcLiistered post letter addressed to the cor- 
 l)oration, its manager, or agent at such chief ollice, or by such written notice given 
 in any other manner to an a\ithorized agent of the cori)oration, 55 V. c. :)!», s. 4;{. 
 
 srsl'K.VSION on <AX<l;i.l.ATI()\ OK HKCISI'UV : AI'l'KM.S. 
 
 70. —(1) The happening of any of the following events shall ipso faclo, and, 
 without notice from the Registrar, cancel tlie registry of the corporation concerned. 
 ('() The repeal or the expiry without renewal of its charter, instrument of 
 association, cir deed of settlement, or of its Act or Acts of incorpora- 
 tion ; or 
 (/>) 'I'he revocation of its corporate powers; or 
 
 (f) The cancelliitioii, or the expiry without renewal of license or other docu- 
 ment of authority liy which the corporation was authorized to exer- 
 cise its corporate powers for the transaction of insurance ; or 
 
 (d) The passing of a resolut ion by the coi'poration for its winding up ; or 
 
 (e) The making of an onler l)y any I'oiirt for the winding iij) of the corpora- 
 
 tion. 
 
 And upon i)roof that any of the said events has happened the Registrar, after 
 notice to the corporation in cases where any dispute is likely to arise, shall cause 
 the proper entry to be made upon the register. .V) X. c. :t!t, s. li) U). 
 
 (2) The happening of any of the following events shall ipxi) facto, h\\k\ without 
 notice from the Hegistrar, suspeml the registry of the corporations concerned : - 
 
 (a) The suspension of any of the Acts, instrunu'iits or documents mentioned 
 in thi'lirsl and third subdivisions of the next preceding subsection ; 
 Or Oi) the suspension of the corporate i)owersof the corporation ; 
 
 And upon proof that any of the said events has happened, the Registrar, after 
 notioe to the corporation in cases where any dispute is likely to arise, shall catise 
 the proper entry to be inaiU' upon the register. ."i5 \'. c. :tll, s. I!» Vl). 
 
 (li) Where the happening of any of the events in the two next pieccding sub- 
 sections mentioneil is disputed liy written notice deliverfcl to the liegistrarat his 
 ollice, he shall clecide liolli as to the facts and as to the law, ai\d render his decision 
 in writitiL.', subject, however, to appeal as in section "M enacted. .V> V, c. Ii!l, s. lit (It). 
 
 l'ro\i«U'd nevertheless that notice of the hai)pening of such event, if published 
 by competent authority in the oltlciaWi'((;«7/<" of ilie Province, territory. Dominion, 
 country or State by which the coiporatiou was incorporated, licensed or emiMJWercd 
 to transact insuraiu'e, or in the On tar in <la,:rf/i\ or an otlicial notice otherwise given 
 l>y the Province, territory. Dominion, country or State to the Registrar shall be siif- 
 llcient authority to the Registrar for the enli'ies on the reg ster hereinbefore men- 
 tioned, 55 V. c. Ill», s. 111 (H). 
 
ONTARIO ENACTMENTS. 
 
 763 
 
 (H When any corporation incorponitod by or in virtue of a statute of Ontario 
 ceases to be registered the Registrar shall .t^ive a notice of the fact to the Master, "i") 
 V. c. :«), s. »!»(1). 
 
 (5* In this section an<l .subse(|uent sections "Master" shall mean the Master in 
 Ordinary In the case of a corpoiatlon having its head ollice at Toronto or in tlie 
 county of York ; and in the case of a corporation having its head ()flic(> In any other 
 county, shall mean the Local Master, or the officer acting as Local ^Master in such 
 county. .").i V. c. :«•, s. 4i» (.5). 
 
 77.— (1) Whore the Registrar de(^ides In any disputed case that a corporation is 
 or is not legally entitled to registry, or lo renewal of registry, or where he suspends, 
 revives or cancels the registry of a corporation, the Registrar, except as othei'wise 
 herein provided, shall render his decision In writing, and shall cause a copy of his 
 decision, cerlilled under the seal of his office lo be delivered by registered post or 
 otherwise to the corporation at Us head ollice or chief agency in Ontario. 5.5V. c. 
 :10, s. ,tO(1i. 
 
 (2) A certified cojjy of any such decision of the fjeuislrar may be had on applica- 
 tion at his office, aiul uixui payment to the Provincial Treasurer of the fee herein- 
 after prescribed, ."u \'. c. :{il, s. .50 (:<). 
 
 (."() The adidavlts and depositions re'ieived or taken by the Registrar In any dis- 
 puted case shall be filed In his ollice. 'm V. c. :«•, s. 50 (;i). 
 
 (1) The evidence and proceedings In any matter before the Registrar may be re- 
 ported by a stenographic writer who has taketi an oath before the Registrar to faith- 
 fully report the same. .55 V. c. :i!>, s. .5(1 (1). 
 
 7H.— (1) LTpon the decision of the Registrar that the corporation is or Is not en- 
 titled to registry, or upon any suspension, revivor or cancellation of registry by him, 
 an appeal m.iy be bad to a Divisional t.'onrt of the High Court, the ajipellant having 
 first given security for costs, in an amount to be delermhu'd by the Court or a. Judge 
 thereof, orby (iencral Rules, as hereinafter provided for. Two clear days" pre\ ions 
 notice of the application to llx the amount of such security shall be driven to the Re- 
 gistrar at his ol1ic<'. 55 V. c. Mit, s. 51 (1). 
 
 (2) No api)eal shall be allowed uidess notice thereof iu writing is given lo the 
 liegislrar wit hiu one month after the judgment complained of; nor unless, uitliin 
 two months after the .ju<lgment complained of, the appellant gives projier security 
 as aforesaid that be will eflectually prosecute his appeal and pay such co>ts !ind 
 damages as may be awarded In case the Judguu'iit appeaU'd from Is in whole or in 
 part aflirmed. At least ten days' notice of any subse<pu'nt proceeding on the appeal 
 shall be given in writing to the Registrar at his oflice. .50 V. v. :!2, s. 10 (51) : .5S \'. c. 
 :U, s. (It!)). 
 
 (.'() r[)on the production of final .judgnuMit, on appeal, If au}', admllf ing t lie cor- 
 poration to registry, or disallowing registry granted, or reversing the suspension. 
 revivor or cancellation of registry, the Hegistrar slmll cause the i)roper entry to be 
 made on the register together with a minute of the Jtnlginenl authorizing such 
 entry, and the IJegistiar shall lhereui)oi\ grant a certlticate of reglst ry or cancel the 
 registry granted according to the tenor of such .judgment. 55 V. c. :ill, s. 51 dh. 
 
 (I) The .Judges of t he Supi'eme I'oiiri of .ludicit ure nauu!d In section l:t5 of '/'/ic 
 .1 n(Hc(iliiri' Art. ISU.j. may make rules or orders as to the I'or'in of appeals nndi'r this 
 section and the trying thereof and otherwise relating thereto. .55 \'. c. :t!l, s. 51 (|i. 
 
 70.— (1) ITpon proof tliat any registry or cert ill cat i' of registry has been olilalned 
 by fraud oi' mistake, or that a corporation exist- for an illegal purpose, is insnlMMil 
 or Is on the verge of insolvency, or has, In ternis of sect Ions SO and SI, made default 
 of payment, or has wilfully, and after notice from the Hcgisti'ar, (contravened any of 
 the provisions of this Act, or has ceased toexist, the registry of the eoi'por:ition may 
 be suspended or cancelled by the Hegistrar; but such s\ispensiou or eaiuellal ion 
 shall be appealable as hereinafter provided. .55 \'. c. :t!t. s, 25 (I) ; ,50 V. c. 1(2, s, 10 (M. 
 
 i ' 1 
 
if 
 
 (64 
 
 INSURANCE LAW OF CANADA. 
 
 (2) Oil the sUHix'iisioii or caiicclliit.ioii of the re^islry of any corporation, except 
 as herein otlierwise enacted, tlie Itegisliar sliall, by reucistercd post or otherwise, 
 cause notice tliereof in uritinji ninier liis hand to lie delivered to the liead otlice or 
 chief agency of t lie corporation in Ontario; and from tlie date of sucli delivery the 
 corporation shall be deemed to be unregisteri'd, but, in the case of suspension of 
 registry only whilst such suspension lasts ; and from and after such delivery the 
 iMirporalion shall withdraw every olt'er to undertake contracts, and shall absolutely 
 ceasi' to undertake contracts, but without iire.jndice to any liability actually incurred 
 by such corporation which may be enforced against the s,iiiie as if such susi)eiisioii 
 or cancellation hail not taken place. oK V. c. 'MK s. :!.') (2). 
 
 HO. — Kvery lawful claim against .in insurance corporation under any contract 
 within the meaning of section li .shall become legally payable on the expiration of 
 sixty diiys after reasonably sulHcient proof has been furnished to the corporation of 
 the happening of the event on which such claim was by saiil contract to accrue, and, 
 where property was insured, after like proof of such additional matters as the law 
 requires; and any ruli's, "Oii'litions, or sti|)ulatioiis to the contrary shall as against 
 the assured be void ; b-r i he insurance corporation may in its discretion p.iy the 
 claim at any tii le bet' r ;piratioii of the sixty days. .Vi V. c. H!l, s. 42 ; It. S. O. 
 
 IHM7, c. 1()7, s. 111. 
 
 HI.— (1) Any iiisuiii ice c irporatiou shall be liable to have its registry suspended 
 by the Registrar upon the I'ailuri' of the corporation to pay an niidisi)uted claim, or 
 an insurance conti. I I f r thi! spa'e of sixty days after being legally jiayable, or if 
 disputed, after linal judgii. tain- ■ t of a legal valid disehiirge, and (in either 
 ease) after notice supported Ir, anilivil ' f tlv corporation's defaiill delivered to the 
 Hegistiar. ."> V. c. Illl, s. 14 (U; 5S V. c. :il, s. (i ((i). 
 
 (2l Where the registry of a corporation has been suspended under the preceding 
 sub-section, but the corporation within sixty days after the notice Ihereiii provided 
 has fully jiaid all undisputed claims and liiial Judgments upon or against the cor 
 poration, the Registrar, unoii proof of the facts, may revive the registry of the cor- 
 poration and issm> his ecrtili.ate of such revivor. .■).") V. c. .'(!), s. 1 1 (2) ; ."iS v. c. Ill, 
 s. I> (7). 
 
 (.'() If within the sixty days mentioned in the next preceding subsection, the 
 corporation has not fully paid all undisputed claims and liiial judgments, the Re- 
 gistrar, upon proof of the fact, shall cancel the registry of the ccn'iioration. ."),"> \'. c. 
 ;«», s. 44 (:i>. 
 
 (4) If the enactment under or by virtue of which the corporation was incoriiorated, 
 or l-.y which the contracts of the corporation are regulated, prescribes payment of un- 
 disputed claims and tiiial .judgments within less than sixty days, this section shall 
 not be dei'iiied to extend the time so ])rescribed for payment, nor to extend the right 
 of the corporation to revivor of registry hereunder beyond the lime limited liy ihc 
 said enactment. .").") \'. c. ;t!i, s. 11 (I). 
 
 ' '"* ' 
 
 H2. — The Registrar, or any person aulhori/ed under his hand and seal, shall 
 
 have at any t ime within reasonable liusiuess hours of every day, except Suinlays and 
 
 holidays, access to all such books, securities, and documents of a corpoi/ition as ic 
 
 hlDc to the corporation's coiit racts ; and any otlicer (U' person in charge, )ios>ession. 
 
 custody or control of such liooks. securities or papers refusing or neglecting to atl'ord 
 
 such access, shall be guilty of an ollence, punishable as for an oU'eiice against section 
 
 S."). and, if registered, the corporation shall be liable to have its registry suspended : 
 
 nd, on "onlinued refusal or neglect to allbrd such .iccess, shall be liable to have its 
 
 r, gist ry cancelled, o.") V". c. :«), s. I.") ; ."iS \". c. :tl, s. (i (S). 
 
 k:|.- (I) If it is established to the satisfaction of the Registrar that the accounts 
 of any corporation (including therein any bodv registered under this .Vet) have been 
 materially and wilfully falsilicd, or t hat for eighteen consecutive muiiths there has 
 
ONTARIO ENACTMENTS. 
 
 765 
 
 ii^ 
 
 liei'ii no hoiKi lidc iiudit of the books and accounts ; or if tliere i.s lilcd in tlie oltice of 
 till! Ki'tristrar a rci|ui.sition for audit hcariiijj; tlic .sif>;iiatnrcs, addresses and occu)ia 
 tlons of al least twi-nty-llvc persons beiiiK members of tlie corporation or claimants 
 or persons enl illed to claim or having; insurable interest under contracts of the cor- 
 poration, and smli reiiuisition alleges in a sullicieiitly particular manner to the sat is- 
 faction of the Heuistrar, specilic fraudulent or ille^ral acts, or repudiation of conlracrs 
 or insolvency, the Uefiistrar may nondnate a competent acconntiint, whoshull, under 
 the directions of the Ke{j;istrar, make a special audit- of the books and accounts and 
 report thereupon to the Retcistrar in writing, verilied upon oath, "m \". c. ;^il, s. :«> 
 (1): .">8 V. c. :U, s. 5 (It)). 
 
 (■>) For puiposes of this Act a special atiditor shall be sullicicntly accredited, if he 
 deliver lo the secretary or to fiiix ollicer of such corporation, a written r.tatement 
 unch'i' the hand and seal of the i{ejj;istrar, lo I lu' effect that the lienistrar has nomin- 
 ated such auditor lo audit the books and accounts. .")j \'. c. :iil, s. ;jl((2) ; ."iS \'. c. ;{|, 
 s. .")(10K 
 
 Ci) The expense of sucli special audit shall be boine by such corporation, and I he 
 auditor's account therefor, when approved in writin;j; by t he Rcfristrar, shall be con- 
 clusive ami shall lie payable by the coi-poraf ion forthwith. 5."> \'. c. ;ill, s. ;ii) ch ; oS 
 V. c. :il, s. .-)(10). 
 
 Provided nevertliidess that where an audit is re((Uested as in subsecliim 1, ili,. 
 l)i'rsons so reipiestin;; it shall, toiiellier with theii' re<|Uisilion, deposit with the Re- 
 liistrar iiroper security for the costs of the audit in a sum not exceeding .S'Joo as lie 
 shall determine ; and where the fads allcKed in the rei|uisition appear to the Regis- 
 Irar to have been partly or wholly disiiroved by the audit, he may pay the costs 
 lliereof partly or wholly out of tlie deposit, ."i V. c. ;fl), s 30 (;t) ; ■O.S \'. c. HI, s. i) (10). 
 
 (4) All books, securities, vouchers and docunicnis relatinu; to the contracts or 
 funds of the corporation (or of the registered branch or lodLre undertakiii'.^ contracts) 
 shall be deemed to be included in the auiiil prescribed by this section. .V) \'. c. ;ill, 
 s. :iu (4) : .")(> V. c. :v>. s. lo (ih ; ."is \\ c. :!(, s. 5 dO). 
 
 (.")) When any corporalioii within the ineanii. ; of siiii section 1 throu-;h any 
 trustee, ollicer, emjiloyee, a.t;ent, or aM<lilor haviiij:; in his custody, (lossessiiiii or 
 power, its funds, books or vouchers, refuses to have the same duly audited as jiro- 
 vi(h'(l by section (HI, and by this section, or obstructs an auditor in the performance 
 of his duties, tliR Registrar upon jiroof of the fact may suspend or cancel the rej;istry 
 of such corporation: but such suspension or cancellation shall be appivilalile as 
 hereinbefore provided, ri'i V^. c. HO, s. HO (lit ; ,5S \'. c. HI, s. Ti (lot. 
 
 (()) Kvery trustee, ilirector, odieer, manager, ai^ei-.t, collector, auditor or employee 
 of the corporal ion, or of any brini-h or lods^e whal soever of the corpDi-at ion, who 
 knowingly makes or publishes, or assists to make or publish, any wilfully false 
 statement of its tinancial allairs, or who makes or assists to make any untrue entry 
 in any book of r<'cord, entry or account, or who refuses or ne>;lects to make any 
 proper entry therein, or to exhibit the books, vouchers, securities and docunieiils, or 
 to allow the same to be inspected or auilited either for the general purposes of ihe 
 corporation or for tlie purposes of this .\cl.aud extracts to be taken therefiom, 
 shall be guilly of an olVense, ami upon summary conviclion thereof before my 
 Police Magistrate or Justice of the Peace having .jurisdiclion where the otl'eiice was 
 committed, shall be imiirison-'d in the ("entral I'rison.or in any goal of Ihe Pro\ ince, 
 with or without hard l.ibour, foi' a period not exceeding l uclve nionlhs. .V) V. HI), s. 
 HO (5). 
 
 HI. (1) If the report made by the special auditor appears to the Registrar lo 
 disclo.se fraudulent or illegal acts on the part of such corpiiration as mentioned in 
 Mubsection 1 of section Kt, or a repudiation of its contracts, or insolveiioy, the 
 Registrar shall notify the corporation accordingly, and furnish it with a copy of the 
 special auditor's report, ulluwing two weeks for a statement to bo Illed with the 
 Registrar in reply. oH V. c. HO, n. HI (1) ; 58 V. c. ;M, s. 5 (10). 
 
 IM 
 
irfli: 
 
 766 
 
 INSURANCK LAW OF CANADA. 
 
 
 (2) Upon C'onsidei'iitioii of tlie special auditor's n-porl uiul of the stiiteinent of 
 Kiich >;orporiitioii, in reply, and of sncli further evidence, <lociuiientary or oral, as he 
 may reciuire, the Hejiistrar shall render his decision in writin;;, and may thereby 
 continue, or suspend, or cancel the registry of the corporation; but such decision 
 shall be appealable, as hereinbefore provided. 53 V. c. 110, s. :U (2) ; 5S V. c. 'M, a. 5 
 <l(h. 
 
 (;<» The evidence maybe jj;iven under oath, which oath the Registrar may ad- 
 iriinistcr. .V) V. c. :i!l, s. M, (.'ft; oS V. c. HI, s. 5 (1.0). 
 
 t'NRE(ilSTEHKI) COKI'OUATIONS DIsylT AI.IKIEI> ; AS.SK9SMENT I.VSI-M! ANCi: ; 
 
 I'KXAI.TIIOS. 
 
 H."i. — (1) After the Mist day of Oeccmber, 1S!)2. no person or persons, or body cor 
 porate or unincorporated, other than a corporation standing registered under this 
 Act and person duly authorized by law and by such registered corporation to act in 
 ils behalf, shall undertake or etl'ect, or oHer to undertake or ellect any contract of 
 insurance. 55 V. c. :«), s. 27 (I) : .5.S V. c. lit, s. 5 (9). 
 
 (2» If any promoter, organizer, oflicebearer, manager, director, olHcer, collector, 
 agent, employee, or person whatsoever, other than as enacted in the ne.tt preceding 
 subsection, undertakes or effects, or agrees or offers to undertake or effect any con- 
 tract of insurance, he shall be guilty of an oU'encc, and upon suniniary conviction 
 thereof before any I'olice Magistrate or Justice of the Peace having .iuris<iiction 
 where the oflence was committed, shall be liable to a penalty not exceeding ^^200 
 and costs, and not less than §20 and costs, and in defatdt of payment the ollender 
 ..hall be imprisontd with or without hard lal)or for a term not exceeding twelve 
 months and not less than three months, on V. c. 3i), s. 27 (2). 
 
 Ch In any trial or cause or proceeding under this Act the burden of proving 
 regisiry shall be upon the corporation or person charged. 55 V. c. Hit, s. 27 (5). 
 
 (1) Every application, contract, or other instrument of such insurance, and every 
 circidar. advertisement or |)ublication soliciting insurance issue<l or used in Ontario 
 for purposes of assessment insurance shall bear the words "Assessment System" 
 printed or stamped in large type at the head thereof ; any contravention of this sub- 
 section shall constitute an oU'ence and shall be punishable as for an offence against 
 sub section 2 of this section. ."i5 V. c. :«t, s. 2 (II;. 
 
 (5) Any one may be prosecutor or complainant under this Act; and one-halt of 
 any line imposed by virtue of this Act shall, when received, belong to Her iMaje,sty 
 for the use of the Province, and the other half shall belong to the prosecutor or com- 
 plainant. 55 V. c. Hi), s. 27 (H). 
 
 (()) Any person convicted under this Act who gives notice of appeal against the 
 decision of the C(jnvicting justice shall be reipiired before lieinir released from cus- 
 (o<ly to give to the .justice satisfactory security lor the amount of the penalty, costs 
 of cDUviction, and appeal, and the appeal shall be to a Divisional Court of the High 
 Court, n:, V. c. *), s. 27 ( I) : 5S V. c. ;U. s. 5 (!l). 
 
 (7) All inrormation or complaints for the proscciiti(m of od'enccs under this .\ct 
 shall be laid ov made in writing within one year after the commission of llie offence. 
 .M v. c. :V,), s. 27 (ti). 
 
 H«.--Kvery olVencc committed by a cijrporation, or by the insuiancc branch of a 
 corporation against this Act shall be deeiiu'd to have been also committed by every 
 odicer of the same bouml by virtue of his ollice or otherwise to fuKll any duty 
 whereof such otl'ence is a breach, or if there be no such olllcer, then by every member 
 of the committee of management of the same, tiidess sueli meml)er be i)roved to have 
 been ignorant of his duty, or to have attempted to prevent the commission of such 
 offence : and every default umler this Act constituting an od'ence constitutes, if con- 
 tinued, a new offence in every week during which the default continues. 55 V. c. 
 ;«), s. tiO. 
 
ONTARIO ENACTMENTS. 
 
 767 
 
 liooKs : im;i(I(ii)Iiai. .vrnii' : i.n\kst.mi:n is : kinavc iai. siATi-.MK.srs. 
 {For npfcidl uHilil sfc section S.I). 
 
 H7. -Every logistered corporation cxcopt the corporiitions nioiitinnod in sub- 
 si'i'tioiis 1 1111(1 2 of ML'Ction ")!», shall kci'p such ii cliissiliciition of it>- cDiitracls. and 
 such register and books of account as may from time to lime he directed or author- 
 ized by the He^istrar ; and if it appears at any time to liim tliat siuli lM)oks are not 
 kei>t in such business-like way as to make at any time a j)roper showing of tlie 
 allairs and standing of tin- corporation, he shall llierenpon nominate a competent 
 accountant to proceed, under liis <lirectioiis, lo aiulit sucii books and to give 8uch 
 instructions as will enable the odicers of the corporation to keep tliem correctly 
 thereafter; the exi)eiise of the accountant shall be burne by the corporation to wliicli 
 he is sent, and shall not exceed $5 per day and necessary I ravelling; expenses; ami 
 the account f o • such audit and instructions shall, when approved under the hand of 
 the UcKistrar. be payable by the corporation forthwith, .m \'. c. :«l, s. 2S (1). 
 
 HM.— Where the corporation has a share or stock capital, the books re(|uired by 
 section H" to be kept shall include a stock ri'^ister, in which a register of the trans- 
 fers of stock shall be accurately kept, and it shall at all reasonable limes be open to 
 the examination of any shareholder and the Registrar. The entries in such register 
 shall iuclude the following particulars : the register numbers of the shares transfer- 
 red ; the amount of subscribed stock transferred ; the amount heretofore paid up on 
 such stock ; the names and addresses of the transferor and the transferee ; the date 
 of the transfer and the date of confirmation or disallowance by the l)oard. H. .S. (). 
 18K7, c. Itl7, s. 11)1. 
 
 «0.— In the case of insurance companies reciuired to make deposit with the I'ro- 
 vince there shall be kept a policy register recording separately the contracts for 
 which the said deposit is answerable under section 1M. 1{. S. t). ISS", c. 107, s. 102. 
 
 OO.— (I) It shall be the duty of the olHcers of every registered insurance cor|)ora- 
 tion to have at least once in every year a l)ona lide and businesslike audit of its 
 books of record and account l)y at least two competent auditors. 
 
 (2> III Provincial corporations every auditor shall be a ([ualitied accountant, not 
 holding, nor liaviiig, for at least two years prior to his becoming auditor, held any 
 other ollice or employment under the corporal ion : and an auditor need not be a 
 member of the corporal ion. 
 
 I'rovided that the directors or executive ollicers may lor incapacity, miscondnct 
 or negligence, on a two-thirds majority, suspend any amlitor. such suspension to 
 remain in force until lln^ next general meeting of the corporation. 
 
 I'rovided also, that if any auditorship becomes vacant between the general 
 meetings of tlie corporation t lie boanl of directors or the executive ollicers may till 
 the vacancy until the next general meeting, "m \'. c. Mil, s. 2il. 
 
 (it) In Provincial companies the auditors .-.liall be aiimially chosen, and their 
 remiuieralion delermiiied by members in general iiieeliMg assembled. 
 
 Ol. — Kvery I'rovincial corporation shall furnish to each member annually a 
 summary statement showing as the result of such audit oi audits the corporation's 
 actual assets, liabilities, receipts and expenditures, and the state of the insurance 
 fund or funds, and a copy of such summary statement signed and certilled by the 
 auditors shall be liled in the ollice of the Registrar with the statement icM|uire<l by 
 section itC. 55 V, c. :«), s. '_'!). 
 
 Provided that a registered friendly society, insl'sul of fuinisliiiig such summaiy 
 statement to each member individually, may deliver to each lodge or local branch, 
 for the information and use of the members thereof, tit least ten copies of the sum 
 mary statement ; of which also at least one copy shall be kept posted up in a place 
 accessible and convenient to the members generally, there to remain posted until at 
 

 ,..., . ^, 
 
 
 768 
 
 INSURANCE LAW OF CANADA. 
 
 least oiii" '111). itli aftiT till' iiDHtiiii! of tlie next suei'iH'diti;^' stiiti'iiient ; iilso one copy 
 111' tlif siiiil s'imiu:iry st.itcnunt, slwill be kept on ii'coni and sli.ill lie niailc iicccssilili' 
 Id tlu" nu'Miln IS LtiMiiTiilly. •">") V. i'. it!>, n. liH (1). 
 
 Provided also lliat if the socii'ty has an olli 'ial newspaper ur JDurnal, and a copy 
 111' the same is sent to each nieinl)er, pulilieation of tlie snnnnary statement tlieiein 
 .sliall Ue siilll.'ient. 
 
 »a.— (ll 'I'll" surplns insurance funds of a Provincial corporation, or branch or 
 lo l>;e thereof sha'l in the name of the corporal inn, hrancli or lod^e lie invested in 
 securities which are a first charge on land held in fee simple or shall he invested iit 
 the public securities of Canada or of any of the Provinces of Canada, or (such securi- 
 ties beinsi in other respects reasonable and i)roper) in terndnatinj^ debentures of any 
 municipal corporatiim, or in the lerminatiiiK dehentnres of any society or company 
 incorporated under the Ucvised .statute resiiectint; UnildiuK .Societies ; or in ter- 
 miuatinj; debentures of any society, or coini);iny in which under the law of the Pro- 
 vince trustees may invest trust funds; or shall remain deposited (whelher with or 
 without interest) in the name of the corporation in a post ollice saviniis bank or in 
 any chartered bank of Canada, or in any building society or loan company in Onta- 
 rio by any Act of Ontario, or of the Djiniuion of Canada duly aiilhorized to receive 
 deposlLs. o,". V. c. H.l, s. 2!t (2). II. S. O. l.SST, c. 107, s. !«. 
 
 Provided that where the constitution or rules of the corpoiation, branch or 
 lodjjie prescribe the secni'ities in whidi the funds of the corporation, branch or lod^e 
 shall be invested nothiun' herein contained shall h"? deemed to enlarge the jiower of 
 investment by the said constitution or rules conferred. 
 
 (2» Subject to the by-laws or constitution any corpoi'ation standing registered 
 >inder this .Vet ,,r any branch or lody,'' thereof, may hold ahsohitcly to its own use 
 and beuelit such real estate as is necessary for the acconnuodation of the corpora- 
 tion, branch or lodse in relation to the transaction of its business, and such re.'.l 
 estate as bein« mortgaged or hypothecated to it, is aciiuircd by it for the protection 
 of its investnioils, and may from time to time, sell, mortgage, leasi' or otherwise 
 dispose of the same: but the corporation, branch or lodge shall sell any real estate 
 aci|nired in satisfaction of any debt within seven years after it lias been so acipiiicd, 
 otherwise it shall be forfeited to Her Majesty for the uses of the Province. ]{. S. O. 
 1.SS7, c. 11)7, s. !)."). 
 
 (8) Xo insurance corporation, or branch or lodge thereof, shall contract with any 
 of its auditors, trustees, directors, or executive ollicers for any loan or credit, or bor- 
 rowing of money, ami every such attempted loan or borrowing is hereby absolutely 
 prohibited, .m V. c. :«), s. a) CO as added by .'iS V. e. :il, s. ."i (111). U.S. O. lm\ 
 c. 11)7, s. ill). 
 
 ( I) Where, in any insurance corporation or branch or lodge thereof, (if organized 
 with branches or lodges), the trustees, directors or managing board (by whatever 
 name known) or the executive or managing committee make such an investment of 
 any of the corporation's money as is not authorized by law, or where the board or 
 committee lend any of the corporation's money, or transfer the beneticial ownership 
 in any of the corpoi'ation's property or assets to any member of the board or com- 
 mittee, or to any auditor, ti'ustee, director, or executive ofJicev of the corporation, 
 till the members of the board or committee (as the case may be) who voted in favor 
 of or assented to the said investment or loan or transfer shall as for a breach of trust 
 be personally liable .jointly and severally to repay or ro'orc (as may be directed) the 
 money, propei'ty or assets so invested or loaned or ti'ansferred, together with inter- 
 est, and also with costs, if the Court shall so determine. Actions may at any time 
 be brought bj* any member of the corporation in tlie name of himself and his fellow- 
 members generally without designating Ids fellow-memberK individually; and all 
 trustees, directors or members of the board or committee may be made defendans, 
 and the proof shall he on any such defendant that he did not vote for or assent to 
 the said investment, loan or transfer. If, in the opinion of the Court, the plaintill' 
 
 *il,. 
 
i^^A^dMUMIiH 
 
 11 
 
 ONTARIO ENACTMENTS. 
 
 769 
 
 
 has proveil the invoMtiiH>nt or loan or transfer illcjiiil. \n' sliall he (Mititlol to lii> comn 
 out of the fiiiid-i of thi! cDrpDr.itiiiii ; ami the ciiriioriitioii, or the rctfivcr ur csliitc 
 tlieroof, shill have the rij^lit to recover over unaiiist the (lefeixhiiits personally or 
 from sui'li of tlieni as tlie ('ourt may (letermhie. ."m V. e. :«», s. :ii) di; .".s V. ,-, :!|. 
 
 H. 5(1(1). 
 
 tl.'l. — Kvery ollicer or ot lier jierson appointeil or elected loany olhcc in anywise 
 concern iim the receipt, safe kecpinii' or proper application of money >liall fiirnish 
 security to tlie sallsfacti m of the directors for the .just ami faithful execniion nl 
 the duties of liis odiee according;' to the rules of the corporal ion, and any person 
 entrusted with the performanee of any other service; may lie reipiired l)y the diii'ct- 
 ors to furnish similar security, and the securities so furnished and then suhsisiinv; 
 shall he produced to the auditors as part of the annual audit hereinhefore pre- 
 scribed. U\ the ease of J'rovincial iifsurauce companies the security Kiveii iiy the 
 troasurir or other ollicer having charge of the money of the company shall in no 
 case be less than 8i,tli)l>. H. S. O. ISS7, c. I(>7, s, !I7: cf, c. Kill, s, 2(t. 
 
 !M. — All real and pei'sonal estate, moneys, propel I y and ellects, and all titles, 
 securities, instruments and evidences, and all rijihts ami claims of oj- l)eloiiv;in,L;' to 
 the corporal ion, branch or lodue shall be vested in the lorporatioii. branch or lodtre. 
 The books used l)y any .auditor, ollicer, collector or a^ent for \erifyinti or for recon!- 
 iiiK moneys received for the corporation, branch or lod^e sliall lie the pi'operly of the 
 corpoiation, branch or lodge: nor shall the foregoinu' jiersons or any solicitcu', coun- 
 sel or other person whatsoever h.ive in tnese or in any other of the books of 
 account or record of the corporation any ownership or proprietary right, or any i iuhl 
 of lien whatsoever: and any person who in contravention of this secticui, with- 
 draws, withholils or detains any of the said books from the possession or control of 
 the directors, or executive ollic(;rs, or from I he receiver or lii|uidator of tin- coi pnra- 
 tion, branch or lodge shall be guilty of an oH'isnce and the procedure and penally 
 shall be as in the case of an fiU'eiice against seclion s") of this Act. .Vi V. c. :i'.l. s. :;ii 
 (1): 5(1 V. c. :{;i, s. in (!»: .-.s V. c. :U, s. ."> doi; lm|(. :is.it c. («i, s. in. 
 
 !>.■>. -If a person .-ippiinted or elected t ) an oltici' and bi'ing enlriistcd v\itli:inl 
 having ill his possession books, moneys, .securities, documeiUs or other prop'-iiy or 
 ed'ecls belonging to the corpor.itioii, branch or lodge, or relating thereto, dies, 
 re-dgns, va atcs, or becoiiies iucapaidlated by mental or physical debility, nr he- 
 comes biukriipt o" insolvent, his legal representative or other person or persons 
 having them in possession or custody, shall within (ifteeu days after the decease or 
 the resignation, incapacity or the b lukruptcy or insolveir^v, deliver all such pro- 
 perty and elleots belonging to the corporation branch or lodge to such person or 
 persons as the directors or executive o'licers appoint. (T. I{. S. ()., ISS7, c. Kilt, s. 1(1. 
 
 OO, — (1) It shall be the duty of the presiding ollicer, the secretary and the 
 treasurer of every registered insurance corpir.uion except those meiitioneil in sub 
 sections 1 and 2 of section •")!!, to prepare jiml lile annually with the Registrar as 
 prescribed by sub-sect ions (:f and h of tills section, .ici-ording to a printed form I o be 
 supplied on application, a sworn statement of the liuancial condition and allairs of 
 the corpor.itioa for the purposes of this .Vet: and any corporation refusing or 
 neglecting to tile the statement by this section required, or to make prompt and 
 e.KpllcIt answer to an.ven(|uiries at any time put by the Registrar touching the cor- 
 poration's contracts or linances shall oe liable to suspension or cancellation of 
 registry, 5.") V. c. S!», s. 17 (1); .->(i V, c. :«, s. Id (U), 
 
 Prcvidfid a friendly society may include in its annual st itemont to the Hegistiar 
 a valuation, made by a coinpetsnt actuary, and veritie I by his oath, of any or all of 
 the contingent liabilities of the society ; and tlii^ I{.?gistrar may in his annual re|)ort 
 publish an abstract of such valuation as part of the statement. 'y> V. c. 3!), s. :.':i (Ii. 
 
 (2) The statement required by the preceding subsection may be sworn to befof; 
 
 49 
 
 m 
 
 If 
 
 s 
 
 I i 
 
 t i 
 
r' 
 
 770 
 
 INSURANCE LAW OF CANADA. 
 
 Bij,'i!;ii' 
 
 iff .% •. 
 
 
 the Registrar or Assisiiint HckIhI riir. or iiisy Justice of tlic Podce, Notary I'lililic or 
 CoiniiiiHsioticr of tlie Hiwl' Court for taking iilliciavits, and every siicli person i» 
 lierehy autliori/ed to admiiiisler any onlli recpiired iiiid4T thin Act, for purposes of 
 any document required or permitted to l)e tiled by tills Act. 3o V. c. :)9, s. 47 (2). 
 
 {'•U In the ease of I'rovincial licensees registered on the Insurance Company 
 liegister, the Ktatemcnt ni'Mitioned in section 1 shall l)e jirepared annually on t lie 
 lirst day of January, or within one month thereafter, and shall he Hied with the 
 lU'fiistrar on or hefore the lirst day of February then next ensuing. 
 
 (I) In the case of cor|)orations registered on the Friendly Society IJegister, the 
 statement mentioned in subsection 1 shall be prepared annuall. on the lirst day of 
 •lanuary or within one month thereafter, and shall be Hied with the Registrar on or 
 hefore the first day of March then next ensuing. 
 
 (5) Together witli the ^statement mentioned in subsection 1, the corporation 
 shall lile with the Registrar a cert i tied copy of the summary statement re(|uired by 
 section fil. m V. c. :«», s. 47 CD. 
 
 »»7.— (1) From the statements filed with him as aforesaid, the Registrar shall 
 each year cause to he prepared, printeil and distributed, a report for the ollicial year 
 ending ;Ust December, aiul such report shall include a list of registered insurance 
 corporalion.s brought up to its actual dale of |)ublication. 
 
 ci) The Registrar shall not in any initial or renewal certificate of registry, or 
 other publication, or otherwi.se vouch for the linancial basis, or for the actual or 
 actuarial .solvency or standing of any insurance corporation ; nor shall the printing 
 of a (torporation's annual statement in the Registrar's report operate or be anywise 
 construed as a warranty of such basis, or of such solvency or standing. y>a V. c. :tit, 
 
 s. tia\. 
 
 J'OWKKS OF DIUI'UroltS— CENKUAI. I'KOVISK iNs. 
 
 {All Provincial Inmiranci' Com/xiniea.) 
 
 I»H.— Sections iHI to 10.") iiuilusive shall apply to all I'rovincial corpi^rations 
 registered on the Insurance Company Register. R. S. (). IXfu, c. 1(57, s. 88. 
 
 »1». -The board of directors may from time to time apjioint a manager, secre- 
 tary, treasurer, and such other ollicers, agents or assistants as to tliein seem neces- 
 ,<;ary ; presciilie their duties, fix their comi)cnsati<>ns or allowances; take such 
 security from them as is reipiired by this .Vet for tile faithful performance of their 
 respective duties, and remove them and ap|ioint others instead. The board may also, 
 suVi.ject to the provisions of this Act, adopt a tal)le of rales, premiums or iiremium 
 notes, as the case may be, and vary such table from time to time, and determine 
 the amount of ti>e contract to be undertaken; they may hold their meetings 
 monthly, or oftener if necessary, for transacting the business of the corporation, 
 and they shall keep a record of their pi'oceedings in a book to be known as the 
 Minute Book of the corporation, wherein shall also be entered the transactions of 
 all general meetings of the corporation. R. S. O. 1887, c. I(i7, s. Hi). 
 
 U)0.— (1> The board nuiy from time to time make and prescribe sucli by-laws as 
 to them appear needful and proper respecting the funds and property of tlie com- 
 jiany, the duty of the officers, agents and assistants tliereof, the eflectual carrying 
 out of the objects contemplated by this Act. llie holding of the annual meeting, and 
 all such other matters as appertain to the business of the comjiany, and are not con- 
 trary to law, and may from time to time alter and amend the said l)ylaws, except in 
 cases with regard to which it is provided that any such bylaws shall not be repealed, 
 or where the repeal would alt'ect the rights of others than the memlicrs of the com- 
 pany, in any of which cases such by-law shall not be repealed. R. .S. (). 1887, c. 107, 
 s. !H)(li. 
 
 (2) Every by-law of the board sliall bediily entered in the minute book, and unle.ss 
 
*" mtMiitwiim'^mmm 
 
 ONTARIO ENACTMENTS. 
 
 771 
 
 leces- 
 
 such 
 
 their 
 
 al«o, 
 
 ■mium 
 
 L-iiiini' 
 
 !lin,u;s 
 
 atimi, 
 
 lis the 
 
 ions of 
 
 , unless 
 
 .mil inilil aiuciicli'd or annulli'il \y\, tin- Imard.or hya ^^'neiMl rneotiiij; of tlie iii'inhers, 
 shall 111' ileeineil to he a hylaw of tlie company. Cf. U. S. O. 1HS7, e. Iil7, s. !M) (2>. 
 
 (;l) Tiicre shall he tlleil with the Insiiranee UeKislrur copu's of all bylaws 
 that in.iy from time to time he passed hy the enmpany or the hoard U. S. C). lK>t7, 
 e. 1(17. N. !MI CI). 
 
 lol. The hoard shall superintend and have tin- management of tln' fnnds and 
 propi-rl V of the loiiipany, lud of all mailers relal in ; thereto, Hinl not ollierw Ise pro 
 vided for. U. S. <). lHs7. e. 107, s. ill. 
 
 lOU.— The hoard may make arninjJCeiiuMits with any other company reiiistered 
 to trans let linsiness in the Province for the re insurance of risks, on such conditions 
 with respect to tin' piynuuit of premiums I hereon as inay he axreed hetween Ihem. 
 K. .S. (). 1SS7. c. 1(17, s.'llii. 
 
 JO;*.— tl» The hoard may issue dehenturcs or jiromissory i\oles in favor of any 
 pi-rson, lirm, huildin;; society, hankini^ or other company, for the loan of money, and 
 may horrow nioiu'y therefrom on such dehenlures or promissory notes for any term 
 not exeeedinir twelve nio'iths, and on such conditions as they think proper, and may 
 renew the same from time to time for any such term, tin- whole of the assets, in- 
 liudinu premium notes of tlie company, heinn held liahle to pay the same at matur- 
 ity, hilt no such debenture or promissory note shall he fora less sum than sgKMt. K. 
 S. O. 1SH7, c. 1()7, s. Ill (1). 
 
 (2) .\ll I he debentures and promissory notes al anyone lime out standing!; shall 
 not exceed one-fourth of the aniouiil remaining unpaid upon the same premium 
 notes. R. S. (). 1SS7, c. I(i7, s. ill c.'l. 
 
 1(» I.— The treasurer of the company or otlier ollicer haviii'; cdiarRo of the money 
 of the company shall K've security to the satisfaction of the board of directors in a 
 sum of not less than «i2,(KHI for the faithful di.scharKe of his duties. U. S. O. 1HH7, 
 c. 1(17, s. 97. 
 
 10.5. — .\t !iny annual meeting of the members or shareholders of a company, or 
 at any special K*'neral meetinfj thereof, if such purpose was clearly expressed in the 
 notice of tlie special f^eneral meeting, it shall be lawful to enact liy-laws or pass re 
 solutions for the remuneration of the directors of the comiiany, and cojiies of such 
 by-laws or resolutions shall, within one week after their passiny:, lie tiled with tlie 
 Insurance Kenistrar. 1(1 V. e. If), s. > ; R. .S. O. 1.S.S7, c. 1(17, s. OS. 
 
 MiircAi. A.vi) cAsii-Mirn-Ai, rini-: i.vsi'hanik cii.mi'axiks ; rnKin i.ntkhnai. 
 
 .\iA.\Aiii:Mi;xr. 
 
 ion. —Sections 1(17 to 111 inclusive, sliall apply only to mutual and ca-li-mutual 
 lire insurance companies. R. .S. O. ls,s7, c. 1(17, s. (11. 
 
 /. Arlniifisioii mill irit/nlraicd/ of mi'iiihrrn. 
 
 107. — Till' company may insure on the premium note plan any jiroperty within 
 the scope of the coiniiany's license, and I lie make:- of the iiremiuin note shall as from 
 the date of the acceptance of the risk by the company he a member of the com|)any, 
 and shall b^ entitled to the like rights, and be subject to the like liabilities as other 
 members of the company. Cf. R. S. (). 1S,S7, c. 1(17, s. (m. 
 
 I OH. — In a cash -mutual company the premium note shall, subject to .section 111, 
 be lialile for claims arising; aKainsI the coiniiany generally. R. S. O. 1SS7, c. 1(17, s. (Ki. 
 
 lOO.— Ko member of the conijiany shall lie liable in respect of any loss or other 
 elaini or demand ajiainst the company, otherwise than upon and to the extent of the 
 amount unjiaid upon his premium note or undertakin;,. R. S. O. 1S.S7, c. U>7, s. (17. 
 
i< 
 
 til 
 
 772 
 
 INSURANCE LAW OF CANADA. 
 
 I U>. — Any mcnilM'r of till' couipaiiy may, with tliccoiisi'iit of llic iliri-ctors, witli- 
 (Iniw tlR'i'i'fi'oiii upon such tiTii-s as llu^ ilirectors may lawfully n'(|uiiv. 15. S. S. ISS", 
 c. lt)7, s. (is. 
 
 i k 1. -The purly insni'i'rt sliall, if insurcii a,i;aiiist llic on llic premium iiolf plan, 
 ln' liable to pay liis piopoitiou of the losses, cxpensi^s and reserve of the company to 
 ihe time of eaneellin;; the policy, anil on payment of his proportion of ail assess- 
 ments tiien jiayahle ami to hecome payalile in respect of losses and cx|)eiises, ami re- 
 serve up lo such period, shall he eutiLled to a return of his premium nole or under- 
 lakiufr. 1{. S. (). 1HS7, c. 1(>7, s. 11:!, !i. li!l. 
 
 .'. (iincnil .][ri'/iii(is.—{Afiiliiiil (tii'', ('ttxh MuIikiI Fire I ii'dini iifi' Cinii/iinilr.'iA 
 
 I lil.— A meeliuKof Ihe memhers for the election of ilirei-lors shall he held in 
 every year, within two mouths afier Ihe lliirly lirsl day of Deceinher in each year, 
 al such linu' .-ind place as may lu prescrihe<l hy I he hy-laws of Ihe cnmpany. I{. S. (). 
 ISST, c. IC.T, s. (HI. 
 
 I l.'t. .\l animal meeting's jirior to the eleclion of directors the slalemenl men 
 I ioued in section ill for ihe year emliuK on the previous I hirly-lirsl day of Decemher, 
 shall he presented and read. U. S. t). 1SS7. c. I('(7, s. 70. 
 
 111. Notice of any annual or special meetinu; of the iuenihi'r> of Ihe company 
 shall he published in one or mort^ newspapers for at least two weeks previotis lo Ihe 
 da> of Ihe meeting!, and the board of <lirectors may convene at any time a (general 
 uieetiu<_of the company upon any urn'cnt occasion, ,u:iviuf< notice thereof as herein 
 I)rovided. 1{. .'^. O. 1S,S7, c. I(i7. s. 71. 
 
 I l."». (I) Mach mendier of lhecompan.\ shall Ih" eulitled al all ineel iri;^- of iln' 
 company, to the miiuher of voles pi'oporl ioued to Ihe amoniit of Insurance by liiui 
 held, accordiun to the following scale, that is losay. for any snin under .•^l,."i(!(), one 
 vote: from ■'^l..")(M) lo .'?:l,IHH), two voles; from .s!;!.(Hlll lo .'^li.iHKI. three votes; ami one 
 vote for every addiliouiil i^ii.lilH); but no member shall be cut it led to vote while in 
 arrear for any assessment or instalmi'ul or llxed |)aymenl due by him to the com 
 
 
 pany. 
 
 1{. .S. (). 1.SS7. c. Iti' 
 
 (•J> Where a policy on the premium note plan is made to I wo or more [lersons, 
 Ihe person whose name stands llrst on the re^tistcr of policy-holders, and no ol her. 
 shall be entitled to vole. .Vi \'. e. :«), s. (i:t iH part. 
 
 IIO. No applicant for insurance shall bi 
 
 nipeteiit to vole or otherwi 
 
 taU 
 
 pail in Ihe company's proceed inns until his application has been acceptc'l by I he 
 board of directors. W. S. (). l.s,S7. c. I(i7, s. 7:t. 
 
 ■ I. Direi'tiirs, <^ii'i/ilii'<itii)ii, Eln-liitii, fic. -{Miiliinl n nd ('nn/iMiiliinl Fin' liisiir- 
 
 miff ( '(iiii/iii iiii'K.) 
 
 117. The ilirectcu's shall be meudiers of the company and insuri'd therein, for 
 he amount of li^SIMI at least, and. where the company has 
 
 the time tliev hold olliee, 
 
 a share capital, I wot birds of the directors shall have the furl her i|ualillcat ion meu- 
 tionei' in section 2ll of this Act. H. S. O. 1S.S7, e. KIS, s. 71. 
 
 1 IH.— (1) The boaril of directors shall consist of six, nim', twelve or llfleen 
 directors, as hIuiII be <lel,erinined l)y resolution passed lit the meeting held under 
 section lit, or at an annual meeting of the company, or at a special Ki'ii''i'id meet inn 
 called for the purpose of such determination and election, U. .S. t). 1.SS7, c. 1(17, 
 H. 75(1). 
 
 (2) The miniber of direelors coiistitiitlnn such board may from time to time be 
 Inereaseil or decreiiHed, if so decided at ii Hi)eciiil neiieral meeliiiK of ilie company 
 
 W,'' ■ 
 
mtmmtuKiB 
 
 ONTARIO ENACTMENTS. 
 
 773 
 
 n\ 
 
 ■(■nllt'il foi' tlie purposo, or at iiii iiniiual meetinji, if notii'c in wriliriL: of tin' iiilcntion 
 to inovt" ;i fOHolutioii for tluil. piirposi- iit siicli aiiiuml mt'ctiii^c is jjivi'n to the stM'i't' 
 Iiii'V of tlic coiiipjiiiy at li-ast otic iiiontli hcfore tin- lioliliiivc of the iiifi'tliiu;; l)nl I In- 
 iiici-cascd or (Iccrcased iiiinilit'i- of diivilofs shall In any surli case he six, njni', 
 I wchi' or tifli'cn as afort'siiid. I{. S. (). 1SS7, r, lliT, s. 7") (2). 
 
 i n>. A i-opy of tlui rcsolnlion spccilii'd in tlii' last prt'ct'diiifj; section, lo^;cllicr 
 with a list of the directors elecled thereunder, liolli docninciits liclnn duly cci'l ided 
 under the hands of the chairman and seeiclary of the annual rueeliui; or special 
 Heiu-ral iiu'etinji aforesaid, shall lie tiled in the otiice of tlie Insurance He^islrar. 
 I!. S. (). IHs7, c. 1(17, s. 7ti. 
 
 I— O, Of the directors eUu'led, as liereiidieldic lirovided, oiu- third sliall retire 
 annually in rotation, and at. the lirst meeting of Ih" directors, or as soon thereafter 
 as ))()ssihli', it shall he determined hy lot which of thein shall hold olliee for oiU', two 
 or three years respectively, and the delernnnalion shall he cidcred of record as part 
 of I he minutes of the said lirst meeting- I!. S. O. 1.SS7. c. 1(17, s. 77. 
 
 I'JI. -At every anninil nicclin.n of thi' comviany thereafter, one-third of the 
 total numhi-r of directors shall lie eleeteil foi'a period of three years, to till the places 
 of the retiring lueudicrs, who sluill lie elif^ihle for re ch-ction. I{. tS. (). I,ss7. 
 c. 1(17, H. 7S. 
 
 I--. The manager of i he coni|iaii\ may lie a director of the coinpauy, anil may 
 lie p^iid an annual salary, under a liy law passed as enacted in section 105. I!. ,s. ( ). 
 |Hs7. c. 1(17, s. 7!i. 
 
 I12:t. .Noajicnl, or paid olticer, or the lianUer of the company, or person in the 
 cniployinent of the company, other Ih^in the m.uia.Ljer. shall lie eli(,'ilile to lie elected 
 as a dirvetor, or shall lie allowed to intcrfei-e in the elecl ion of directors for the com- 
 pany. Provided nothinj;' lii-rein <'onlained shall prevent a director from receiving 
 a|iplicati(>ns for insurance, or from takinif to his own use the customary application, 
 survey, or policy fee, lint the said fee sliall not exceed SI. 50 for any one application 
 or policy. I{. S. (). 1S,S7. c. I(i7, s. SO; ."ill V. c. ;il s. !) (I). 
 
 I'JI. (I) The plection of directors shall he held and made hy such menihers of 
 the comiiany as attend for that purpose in (heir proper persons. I{. .s;. (». I,SS7, c. 
 1(17. s. SI. 
 
 (li) The election of directors shall lie hy h.illol. I!. S. (). 1SS7. e. Iii7, s. Sl'. 
 
 CI) Ifal any such elect ion I wo or more niemhers haveanci|Ual nuniher of votes, 
 in such manner that a less uumlier of persons I hau the wliole uunilicr to lie elected 
 .appear lo have lieen chosen directors hy a luajorily of voti's, then the said niemhers 
 of the company shall proceed lo elect liy liallut, until it is determined which of the 
 persons s(i hii\in>i an ei|ual numlicr of \oles shall he the direclor or dircctnrs, mi iis 
 lo compli'le the whole numher of di rectors lo he elecled, and I he directors >\\:\\i at 
 Ihi'ir lirst meeliiiK after any such I'lect ion. (iroceed to elect hy liallol, anmiej; iliem 
 selves, a president and \lre presidclil , .ind ill such elcil ion I he secniary shall pre 
 side. |{. .S. (). lSs7. e. 1117. s. s:t. 
 
 (Ii 111 case .in elecl ion of direclors is not made on I he day on which il oiinht lo 
 lia\ e heeii made, I he company sliall not for that en use he dissolved, hut the elect ion 
 nuiy he held on a suhseipient day, ill a meel iiiu to he c illed liy I he direclors, (ir as 
 otherwise provided hy the hylaws of the eomp.iny, and in such c;ise I lie direilius 
 shall continue to hold olliee until iheir successors ,ire elcried. 1{,.S. (). ls.s7. c, |ii7, 
 s. S5. 
 
 la.". If a \acaney haiMieiis ainoujx Ihe direclors during tlie term for which 
 they have heeti elected, hy deal h, lesijiiml ion, ce.isinn' to have Ihi' necessary ipnili 
 llcfilioo under seclion 117 of this Acl, iusohencx, or !iy lieiiij; ahseiil without 
 
 » 
 
 I, 
 
 
 :l . 
 
 ! t\ 
 
 il 
 
 n 
 
774 
 
 INSURANCE LAW OP CANADA. 
 
 previous leave of the hoard, from the board for three reguhir ineetinfis in .succi'ssion, 
 (wliich shall, i)>fio facfo, create such vacancy) the vacancy, in the case (if a Itoard 
 limited to six directors, shall be filled up, and in the case of a board limited lo a 
 number of directors exceeding .six, may be tilled up, until the next annual meeting, 
 by any j)erson duly (lualified, to be nominated by a majority of the remaining 
 directors, and as soon as maybe after the vacancy occurs, and at the next annual 
 meeting the vacancy shall be Hlled for the portion of the term still unexi)ired. 
 K. S. O. 1H87, c. 107, s. H4. 
 
 12«. — (1) Three directors shall constitute a (luorum for the transaction of busi- 
 ness, and in the case of an eqinility of votes at any meeting of the board, the ques- 
 tion sh:ill pass in the negative. R. S. O. 1KS7, c. 1()7, s. SO. 
 
 (2) A director disagreeing with the majority of tlie Iward at a meeting, may 
 have his dissent recorded, with his reason.s therefor. H. S. O. ISH7, ( . 107, s. M7. 
 
 1. Pri'iiihiin Xoiufi (inil Assismneiils. (Mufmtl nnd (hisliMnluiil Firi' Iiisin-iinie 
 
 Coiiijxniii'.s.) 
 
 127.— (1) The company may accept the i)remium note or the undcrtjiking of the 
 assured for assuiMn<'e, and may undertal^e contracts in consideration thereof, said 
 notes or undertakings to Ije assessed for the losses, expenses and reserve of the 
 company in the manner hereinafter provided. H. S. O. 1H.S7, c. 108, s. 122. 
 
 (2) Where tlic preniium note or undertaking is maile upon a sheet or page 
 which contains otlier matter, the premium note or undertaking shall be so entitled 
 in conspicuous type, and shall be separated from such other matter by a Iilank space 
 of at least an incli wide cari'ied across the sheet or page, and if surli oilier matter 
 reiiuires, or is intended to receive the assent of the maker of tlie i)rcmiuni note or 
 undertaking, such assent shall be evidence<l l)y a signature wholly distiiut fi-om the 
 signature to the premium note oi' undertaking, and any viol.ition of this section 
 shall render the ]n'emium note or umlertaking al)solntely null and void; but the 
 notice required l)y section 1158 of this Act to be emliodied in or endorsed upon the 
 premium note shall not be deemed to be "other matter" within the meaning of this 
 siil)-section. .">;? V. c. -14, s. 1, .">(! V. c. ;52, s. <l, (2). 
 
 lUH. The rate to be cliarged or taken by wmv of premium note for insuring lirst- 
 class isolated non-hazardous properly shall not be less t han one <lolIar per one hun- 
 dred dollars per atuium, and the minimum rate of insurance upon mlier pi-opcrty 
 shall be increased relatively wi(h the increased risk, ac(;ording to the imliirc of siu'li 
 l)r()per\v, provided that premium notes of not less than JSl per •~sl(lll per annum may 
 be charged or taken w hen and so long as the gross au\ount at risk exceeds .s2,OI)i),- 
 (HlO, and the total assets of the company do not fall below two per centum of the 
 gross aminint at risk, or so long as the company keeps on deposit with the Provin- 
 lial Treasurer the full amount recjuired of new companies licensed after tlu'coni- 
 mencemeiit of this Act, K. .S. O. 1887. c. 107, s. 1(1!). 
 
 1211. (1) Tlu' directors may demaml in cash a part or tlrst paymciil of the 
 premium, <ir premium note oi- undertaking at the time that application lor insurance 
 is made, and such lirst payment shall be ci-editi'd upon said premium note or under- 
 taking or against fnlure assessments, but not more than sixty jier cenlnm of any 
 premium or premium note or undertaking shall be paid in c.isli al Ihe lime of such 
 application or of ell'ecting the insurance. K. S. (). 1887, c. Ki", s. 12;i ; ."iii \'. c :t2. s. 
 !» Ct). 
 
 (2) Instead of requiring the whole of the Hrst jiayment to be made in cash at the 
 lime of insuring, the directors may make the said sum payable in annual inslal- 
 ments, the tlrst of wliich shall be payable ou the day of insuring, and lliiM-e maiuing 
 instalmenis shall lie rc'-iiectively payable on the llrst day of each subsequeiil year of 
 the term of insurance. The said annu.il instalments may be known anil de.-ciibed 
 as " the Hist inr sffaiiil, iir (rs llir cise iikii/ lit) llxed payment." 
 
If 
 
 ■H 
 
 ONTARIO ENACTMENTS. 
 
 776 
 
 Provided that non-payment of any of the tixed payments siibseiinent to the lirst 
 shall not forfeit the insurance nnless thirty days' notice of the tlxed payment due, 
 or to become due, has been mailed to the person by wlioni the lixed payment is pay- 
 able, directed to his post ollice adrlress as given in his original application, or other- 
 wise in writing to the company. '>2 Vic c. 14, s. 2. 
 
 I:lO.— All premium notes or nnderlakings bclonnin^: to the company shall be 
 assessed under the direction of the board of directors, at such intervals from their 
 respective dates, for sucli sums as the directors determine, and for such further 
 sums as they thinl< necessary and as are authoi-ized by this Act for losses, expenses, 
 an<i reserve, during the currency of the policies for « hicli said notes or undertakings 
 weit! given, and in respect of which they arc liable to assessment : and every niendier 
 of the company, or person who has given a i)remiiim note or undertaking shall pay 
 the sums from time to time payable by him to the company during the continuance 
 of his policy in accordance with the assessment and the assessment shall become 
 payable in thirty days after notice thereof has been mailed to the member, or person 
 who has given the premium notr> or undertaking, directed to his post odice address, 
 as given in his original application, or otherwise in writing to the comiian,\. It. S. O. 
 1S87, c. 107, s. 12-1. 
 
 l;*l.-— If thi! assessment on the i)remiuMi note or undertaking upon a pnli( y is 
 not paid within thirty days after notice mailed as in section l:f()enacteil, the contract 
 of insurance, for which the assessment has been made shall \m- null and void as res- 
 pects all claim for 1osm>s occurring during the time of non-payment : but thecoiitract 
 shall be revived when the assessment has been paid, unle."s the secretary gives no- 
 tice to the contrary to the assessed party in the mamier in this Act provided, but 
 nothing herein contained shall relieve the assured from his liability to pay the assess- 
 ment or any snbseipuMit assessments, nor shall the assured parly be entitled to re- 
 cover the amount of loss or damage which happens to i)roperty insured undei- the 
 contract while the assessment remains due and unpaid, unless the boiird of directors 
 in their discretion decide otherwise. H. S. (). 1SS7. e. I(i7. s. 12.") : .ht \'. c. 1), s. '■'•. 
 
 132.— A notice of assessment upon any |>remium note or iindertakinu- maileil as 
 aforesaid shall be deemed sndlcient if it embodies the register munber of tic eon- 
 tract, thi^ period over which the assessment extends, the amount of the assessment, 
 the time when and the place where payable. It. S (1. Iss". c. Ki". s, I2ti. 
 
 l;j;l. Subject to the luovisions of section 12S, the assessment upon piemium 
 notes or uinlertakiiigs shall always be in proportion tn the amount of tlie miio or 
 undertakingH. H. S. O. lsS7, c. 1(17. s. 127 ; .")2 \'. c. Ml. s. 2. 
 
 " Provided that where any company alteis its premium note rati', lint sl ill holds 
 in respect of sul)sisling contracts ))remium notes of the piicu- rati', it shall be hiwful 
 for the company, as bet ween the respective premium notes so diU'ering in rale, to 
 make and levy such dillereiitlal assessinei\ts as will in lisksof the same amount . and 
 of the sailU' class of ha/ard. equalize the cost of insurance to the niaki is ol the res- 
 pective premium notes." r)2 \'. c. .11, s. I. 
 
 I.'J 1. — If. for I hirt y (la\ - aft ii' not Iceof assessnienl mailed ,-is aft)resaiil, a member 
 or other l>erson w ho has given a preminni note or undertaking I'cfnses or neglects to 
 pay the assessiuent, the company may sue forand recover the same with costs of 
 suit, and such proceeding shall not bea waivei-of Mri\ lorleiture incurred liv such 
 mill-payment. It. .S. (). lS.s7. c. I(i7. >. I2S. 
 
 I."{.">. Where an assessment is made on iin.x premium note or undcilakiiiL; :;lven 
 to the company for a risk taken liy t he companv, or as a considcrat ion for aiiv policy 
 of insurance issued, or to be issued by the company, and an action is broiinht to re- 
 cover the a.ssessincni. the eertillcate of the secretary of the company, specifying the 
 assessment and the amount <lue to the cumpany on thi' note or undertaking b\ means 
 
 
776 
 
 INSURANCE LAW OF CANADA. 
 
 thiTi'of, sliiiU be taken iind rueoived as prima facie evidence thereof in any Court in 
 this I'rovince. R. S. O. 1SS7, c. ItiT, s. 129. 
 
 l:t«.— (1> The company may form a reserve fund, to consist of all moneys which 
 ivuiain on hand at the end of eai-li year, after payment of the ordinary expenses and 
 losses of the company, and for that purpose the board of directors may levy an annual 
 assessment not exceeding ten per centum on the premium notes or undertakings 
 held by the company, and the reserve fund may from time to time be applied by the 
 directors to pay oil" such liabilities of the company as may not be jirovided for out of 
 till- ordinary receipts for the same or any succeeding year. R. S. O. 1887, c. 1(57, 
 s. l:«l(l». 
 
 (2> The reserve fund shall be invested as provided by section 92. Cf. R. S. O. 1887, 
 c. I(i7. s. i:iO (2» : .55 V. c :i!t. s. (i:! (U. 
 
 I. "17. (Il If there is a loss on propeity insured bj the company, the board of 
 directors may retain the amount of the premium note o!' undertaking given for in- 
 surance thereot until the time has e.\pireii for which insurance has been made, and 
 at the expiration of said time the Insured shall have the right to demand and receive 
 such part of the retained sum as has not been assessed for. R. S. O. 1HS7, c. 1(17, 
 s. i:il. 
 
 (2) On the expiration of forty days after the term of insurance ended, the pre- 
 mium note or undertaking given for the term sliall be absolutely null and void, 
 except as to lirst i)a.\ment or lixed payments remaining unpaid, and except as to 
 lawful assessnienls of which written iu)tice pursuant to sections IHO and llil has been 
 given to the maker of the premium note or undertaking during the eurrency of the 
 poliry or within the said period of forty days, and on the expiration of the said 
 perioil llie premium note or uiulertaking shall, upon application therefor, be given 
 up to the maker thereof, provided all liabilities with which the lu'cmium note or 
 undertaking is chargeable as aforesaid have been paid. Sti V. c. 44, s. I. 
 
 i;i*». (1) Any action cogni/able in a Division Court upon or for any premium 
 note or uiulertaking, or any sum assessed or to bo assessed thereon, may be entered 
 and tried and determined in the cotirt tor the <livision wherein the head ollice of 
 any agency of the company is situate. R. S. O. 1SS7, c. 107, s. l;t;{. 
 
 Provided always, that the provisions of this section shall not app.ly to or include 
 iinv sutli premium note or undertak ng, nor any sum assessed thereon, unless within 
 the body of such note or undertaking or across the face thereof, there was at tin; 
 titiM' of the making or entering into the .same, printed in conspicuous type, and in 
 ink of a color dillerenl from any other in or on such note the words following: "Any 
 action which may be brouglit or commenced in a division court in respect or on 
 account of this note oi- underlakin.r, or any sum to be assessed thereon, nuiy be 
 brought and commenced against the mak(>r liereof in tin' Division Court for the 
 tlivision wiierein the In'ad olllcc or any agency of the company is situate." 4(1 
 V. c, :i.-., s. 1. 
 
 (2l Where, in any Division Court suit or proci'ciling, a decision is rendered which, 
 in etl'ccl or in terms, renders invalid any general assessnumt made by a mutual in- 
 surance <'ompan\, such ilecision shall he appealable, notwilhstanding the sum in 
 dispute upon the appeal is less than $111(1, and all the provisions contained in sections 
 148 to liVl, both inclusive, of Thr Dirisioii (\iiir/n Ac/ shall apjily lo such appeal, 
 .■)2 \", <•. :!l, s. :t, 
 
 l;l!». No premium note or uiulertaking shall cri'ate .i lien iipmi lamls on which 
 the insured (iroperty is situate. 
 
 140.— Any eash-niutual Are insurance loiiipany registered under this .\ct may 
 cll'ect any insurance niion the cash preiniuni principle, for a (leriod not exceeding 
 three years, on farm and other non-liMzardoiis pro|)erty, and for one year or less on 
 any other class of property, bill the .■imonnl of cash insurances in one year shall be 
 
^ 
 
 '■5 
 
 ONTARIO ENACTMENTS. 
 
 777 
 
 limiti'd, so that the cash priMiiiums received thereon during any one year shall not 
 be in excess of one-lmlf of tlie iinionnt still paya'ile in respect of premium notes or 
 UM(lei'tiikinjj;s on hand on Mh" thirtylirst diiy of Dcceniher of the previous year, 
 according tr) the statement made uiidersoction iM5, and all the property and assets of 
 (he c<)m;)any, includinfi; premium notes and undertakings, shall lie liahle for all 
 losses which may arise under insurances for cash premiums, by any such con)pany. 
 U. S. O. ISST. c. 107, s. i:i."). 
 
 14 1.— (Il No execution shall issue against a mutual or cash-mutual company 
 upon a .judjiMient until after the expiration of sixty days from the recovery thereof, 
 but this section shall not apply to any .judgineut recovered on any policy or under- 
 taking of the company issued or given wliere more than sixty per centum of the 
 premium, or piemium note, or undertaking, was paid in cash at the time of the in- 
 surance or the application therefor. R. S. O. 1KS7, c. 1(>7, s. l:il) (1); 58 V. c. :tl, 
 ,s. U (2). 
 
 (2) A .ludgc in chambers, or a Master in chambers, shall upon the recovery of a 
 judgment against; tlii' company, upon the application of the poison in whose favor 
 the same has been recovered, upon notice to the company, iiic|Uire into the facts, and 
 if he shall certify that more than sixty per ceiitiiiu of the pfeniium note, or under- 
 taking, was paid in cash at Hie time of the insuraiiee, or upon the ajiplication there- 
 foi', execution may be forthwith issued upon such judgment, K. S. (). ISS7, c. 11)7. 
 s. mU2); .")S v.. c. ;)l, s. 11 i-l). 
 
 CKNKIiAI. I'HOVISIONS l(l;i. ATIXl! I'd lOXTItACI S dl' TN'SfUANC I). 
 
 145i. Sections 
 generally. 
 
 I l;t to IK) inclusive shall apply to coiitra<'ts of insurance 
 
 l-t.;l. — When the suliject matter of any insurance contract is inoperty, or an 
 insurable interest within the jurisdiction of Ontario, or is a person domiciled or 
 resident therein, any iMilicy, ceitillcate, iTiterim receipt, or writing evidencing the 
 contract sliall, if signed, lountcrsigned, issued or delivered o\er in Ontario, or com 
 niitted to the post otlice or to any carrier, messenger or agent, to be delivered or 
 handed over to the assured, his assign or agent in Ontario, be deemed to evidence a 
 contract made therein, ami the contract shall be c:onstrued according to the law 
 thereof, aiul all moneys payable under the contract shall be paid af the olllce of the 
 chief odicer or agent in Ontario of the insuring corporation, in lawful mmu'y of 
 Canada, and this section shall have ell'ect not wilhst andiiig any .igreement, condi 
 (inn or stipulat ion to the contrary. .")ii V. c. H2, s. Il)(l). 
 
 144.— (1) Where any insurance contract inaile by any corporation whatsoever, 
 within the intent of section :i of this Act is evidenced by a si'aled or written iiistru 
 miMit, all the terms and C()n<lil ions of the contr.act shall be set nut by (Ik- corpora 
 t ion in full on t he face or l)ack of t he instrument forniing or evidencing t lie cont raci, 
 and unless so set out, no (enn of, or condidon, siipulation. warran(y or proviso, 
 modifying or impairing the ell'ect of any such contract made or renewed after the 
 coininencement of this .\ct shall be good ami valid, or admissible in evidence to the 
 luejudice of the assureil or bi'ueliciary. •">- \'. c. M2, s. I. 5") \'. e. UK, s. 'Xi ill. 
 
 I'l'ovided that nothing herein contained shall exclude thi' proposal or applica 
 lion of the assured from being cansiilered with the <'ontract. and the court shall 
 <lelermine how far the insurer was induced to enter into the contiail liy any 
 material misre|>i'esentat iiui coiiiaiued in tlie said applicatiim nr propnsal, .">s \'. ,•. 
 :il.s. 5(101. 
 
 Provided also, that a registiMcd frieinliy society may instead of setting out the 
 complete contract in the ccrtiticatc or other Inst runu'iit of contract, indicate therein 
 by partiiulai' ri'ferenres those articles (U' (irovisioiis of the constitutiDU. liy laws or 
 rules which contain all the material terms of the contra t not In the instruin< iil of 
 
 uj 
 
 lli: 
 
 f 
 
 i 
 

 778 
 
 INSURANCE LAW OF CANADA. 
 
 coiitrnct itself set out, and the society shall at or prior to (he delivery over of such 
 instrument of eontriict deliver also to the assured a copy of tlie constitution, by- 
 laws and riiles therein referred to. 
 
 Provided also, that nothinfj; in sub-sections 1, 2 and a of this section contained 
 .shall be deemed to impair the effect of the provisions contained in sections KiH to 173 
 inclusive, or the effect of the jirovisions contained in .section 54 of an Act passed in 
 the fifty-second year of Her Majesty, and chaptered liS." Tw V. c. Hi), s. Xi (1). 
 
 (2) No contract of insurance made or renewed after the commencement of thi.s 
 Act shall contain, or have endorsed upon it, or l)e made subject to any term, condi- 
 tion, stipulation, warranty or proviso, i)rovidinjj; that such contract shall be avoided 
 by reason of any statement in the a])plication therefor, or inducing the enteriiif? 
 into of the contract by the corporation, unles.s such term, condition, stiptilation, 
 warranty or proviso is limited to cases in which such statement is nuiterial to the 
 contract, aiul no contract within the intent of .section 2 of this Act, shall be avoided 
 by reason of the inaccuracy of any such statement, unless it be material to the con- 
 tract. .52 V. c. :«. s. 5. 5.5 V. c. H9, .•-. '.» (2). 
 
 (■i) The c|uestion of materiality in any contract of insur^mce whatsoever shall be 
 a question of fact for the jury, or for t lie Court if there be no jury, and no admission, 
 term, condition, stipulation, warranty or i)roviso to the contrary, contained in the 
 application or proposal for insurance, or in the instrument of contract, or in any 
 agreement or documenl relating thereto sliall have any force or validity. .55 V. c. 
 :w, s. :t:( (,S). 
 
 145.— (U After any loss or damage to insured jiroperty the insurer has. l>y a 
 duly accredited agent an immediate right of entry and access sufficient to survey 
 and examine the property, and make an estimate of the loss or damage, but the 
 insurer is not entitled to the dispo.sition, control, occupation, or jjossession of the 
 insured property, or of the remains or salvage thereof, unless the insurer under- 
 takes reinstalemcnl, or accepts abindoiiincnt uf the |)roperty. 55 \'. c. !i!l, s. .'iH (1). 
 
 (2) After loss or damage to insured property, it is the d\ity of the ass\ired when, 
 and as soon as practicable, to secure the insiued property from damage, or from 
 furtliei' 'lamage, and to separate as far as reasonably may be, the damaged from the 
 uiidamaged property, and to notify the insurer when such separation has been 
 made, and thereupon the insurer shall be entitled to entry aiul access s\i(Hcient to 
 nuike an appraisenu'iit oi' particular estimate of the loss or damage. 
 
 Provided I hat at any time afier the loss or damage the insurer and the assured 
 may under a term of the contract of insui'ance or by special agreemeni make a 
 joint survey, examination, estimate, or appraisement of the loss or damagi', in 
 which case the insurer shall be deemed to have waived all right to make a separate 
 survey, examination, estimate or appraisement thereof. .55 \'. c. Hil, s. :U (I). 
 
 1-40.— (1) In case of several actions being brought for insurjinee money, the 
 Court shall consolidate or otherwise deal therewilh so that theic shall be but one 
 action for and in respect of the shares of all the persons ent illed under a i)olic\. 
 
 (2) If an action is brought for the share of one or more infants entitled, and the 
 other infants entitled, or the trustees, executors, or guardians ei\titled to recei»-e 
 payments of the snares of such other infants, shall be made pai'ties to the action, and 
 the I'ighlsofall the infants shall l)e ilealt with ami determined in one action. The 
 persons ent i I led to receive the shares of the infiinis may join with any adult persiuis 
 claiming sliares in the policy. In all actions wlieri' sevral persons are inleroled in 
 the money, the Court or .ludge shall ap|)ortion among the parlies entitled any sum 
 directed to be paid, and shall give all neees.sary directions and relief. li. ,*>. O. ISsT, 
 c. l;»(',, m. HI. 
 
 (il) li; any action commenced in a Division or County Court for any insurance or 
 benetlt alleged to be payable to the assured or any benellciai'y. assignee, representa- 
 tive or guardian, when the insuratu'cor l)enellt claimed is in the nature of an annu- 
 ity or other perio^'ical or recurring payment, so thai the prescnl or capitalized value 
 
|liHI.-llllWIJ.IIHU.».WlHHII! 
 
 .mfmmwi'^mtim 
 
 i^Bi 
 
 ^ 
 
 ONTARIO ENACTMENTS. 
 
 779 
 
 m 
 
 ill 
 
 of the insurance orl)tMielil amounts or may amonnt toasum beyond llie ,juriH(liction 
 of the Court in whieli tlie action is bi'ounht rlie defendantmay file witli tlie Registrar 
 or Local Registrar of the High Court the allidavit setting out such facts, and there- 
 after upon the application of the defendant the action shall be removable into the 
 High Court of Justice. Cf. .")2 V. c. 31, s. :t. 
 
 I: 
 
 fS 
 
 INSUUANfl-; OF THI': I'KllSON. 
 
 1. (rnierul prorinioiin applwahle In all losurevs. 
 
 147.— Sections IIH to 10.5, inclusive, shall apply to insurance of the person within 
 the meaning of sub section Ht of section 2.' 
 
 14H.-(I) In any insurance of the person, where the money payable by way of 
 premiums, diiesorassessments (not beingthe Initial premiums, <lues orassessments>, 
 under jiny contract whatsoever, is un])aid, any of the persons hereinafter mentioned 
 may within thirty days from and including the first day on which the money is due, 
 by register<'d letter or otherwise, pay, deliver or tender to the company at its head 
 oflice, or iit its chief agency in Ontario, or to the company's collector or authorized 
 agent, the sum in default. On payment, delivery or tender as aforesaid by the as- 
 sured, or by any of the benetieiaries under the contract, the contract shall be deemed 
 to have been ipsoj'iicto revived or renewed, and any stipulation or agreement to the 
 contrary shall, as against the assured or his benetieiaries, be utterly void, the thirty 
 days hereinbefore mentioned shall run concurrently with the period of grace or 
 credit (if any) allowed by the insurer for the payment of a premi\im or of an instal- 
 ment of premium, and nothing herein contained shall be deemed to extend th.) period 
 of grace of credit beyond the total of thirty days. This subsection shall not be 
 deemed to extend the time allowed for the payment of contributio.iis or assessments 
 by section Hi.") of this Act. 50 V. c. Wl, s. 10 (li». 
 
 (;i) Notwithstanding any stipulation or agreement to the contrary, any action or 
 proceeding against the insurer for tin; recovery of any claim under or by virtue of a 
 contract of ins\irance of the person nniy be commenced at any lime within the term 
 of one year next after the happening oi the event insured against or within the 
 further term of six months, by leave of a .lodge of the High Court, or the Master in 
 Chambers upon its being shown to his satisfaction that there was a reasiina'ile ex- 
 cuse for not commencing the a(!tion or proceeding within the first meiitinned term. 
 51) V. c. .'CJ, s. It) (12). 
 
 14l».-(l) Where the ;ige of a person is material to any contract and such age is 
 given erroneously in any statement or warranty made for purjioses of the contract, 
 such contract shall not be avoided by reason only of the age being other t!.an as 
 stated or warranted, if it shall a])pear that such statenu'ut or warranty was made in 
 good faith find without any intention to deceive, l)ut the person enlilled to recover 
 on such conlnict shall not be entitled to re(!ovcr more than an amount whiih bears 
 the same ratio to the sum that suih person would i it he i- wise be ent itled to rccnver ;is. 
 the premium proper to the stated age of siuh jierson bears to the premium proper 
 to the actual age of s(n'h person, the said stated age and the actual .age being lioth 
 taken as at the date of the contract. 52 V. c. ;!2, s. (i (I) ; .")5 V. c. :ii). s. HI (1). 
 
 Provided that in no case shall the amount i-eccivable exceed the amount stated 
 or iiulicated in the contract. 55 V. c. ;t!», s. Hid). 
 
 Provided, also, that whore the application forami cunt r.ict of iusur.iiK'e expressly 
 limit the insurable .ige, and where the actual age of the ai)i)liiaiil for ins\irance tit 
 the date of his applicat ion excee<ls the age so limited, |!u' coiit ract shall, during the 
 lifetime of the assni-ed and not later than the yi^ars from the date of (he contract, be 
 voidable at the discretion of the insurer v\ithin thirty days after the error in age 
 comes to the knowledge of t he insurer. .")S \'. c, .'!(. s. 5(11 ». 
 
 I It is ovideiitly (iwitig tii ii plericid error tliiit Mib.<cctioii .'i|, iristeiiil of 'V\ liiiH liccn refcrrcil to. 
 
 il 
 
 if- 
 
780 
 
 INSURANCE LAW OF CANADA. 
 
 '«; 
 
 (2) For purposes of tliu next preccditiy; sul)se(:tion the word " prcniiuin " sliall 
 nii'iiii till- net m\miiil premium iis shown in or lU'diiced from the Ilm. Tiildes of tlie 
 Institute of Actuaries of (ireiil Britain, the rate of interest heiiip; taken at 1.^ per 
 oent per annum. 52 V. e. ,il, m. :{ ; 5.5 V. e. :«). s. :H :2) ; 5(i V. c. :)•-', s. 10 (1(1). 
 
 (;i> If tlie error in age includes a fractional part of a year exceedinR a half year, 
 .sneli frai'Iioiiiil part sliall be compute<l as a whole year, liut if tlie fractional part 
 does not exceed a half year it shall he wholly disrejiarded in the computation. 52 N'. 
 c. :>■>, s. (i (i) ; ."i V. c. ;«l, s. -M (:t). 
 
 (4) When liy the terms and for the pin-poses of the contract, I he ajie of the person 
 in respect of whose a^e the contract is taken to he urealer than the actual a^e of 
 such person, the numherof years added to such a^;e shall, for purposes of the calcula- 
 tion provided for iiy this section, bo added tc the true age of such person, .52 V, c. 
 :12. s. () (2) ; 55 V. c. ":!7, s. .14 (-1). 
 
 (5) Where atiy error is discovered in respect of luiy coiit ract of insurance, or of the 
 premium or premiums jiaid or to be |iaid upon sucli contract, nothing herein con- 
 tained shall he construed in any wa> to prevent at any time before the maturity of 
 the contract an adjustment bet ween the insurer and the assured of the amount or 
 Jimouiits payable in respect of .-iny insurance ellected, or of I he premium or preniiunis 
 paid or to be paid. 55 V. c. .'tit, s. ;)l (5). 
 
 l."H). -(1) In any insurance of the iierson, except an annuity on life, it is neces- 
 sary for the validity of the contract that the benellciary under the contract (being 
 other than the assured, or the jiarent, or hoita Jiilc donee, grantee or assignee of the 
 assured, or a person eut itied under the will of the assured, or by operation of law), 
 have had at tin; date of the contract a pecuniary interest in the duration of the life 
 or other subject insured, jirovided that any otherwise lawful contract of annuity 
 upon life shall not require for its validity that the annuitant has or at any time hail 
 an insurable interest in the life of the nominee. .55 V. c. liil, s. 1)5 (2). 
 
 (2) No corpora(ion shall insure or pay on the death of .a child under 10 years of 
 age, any sum of money which added to any sum payable on the death of such child 
 by any other insuring corporation exceed the following amounts respectively, that 
 is to .say :— 
 
 If any such child dies under the age of 2 years, .SH2 
 
 10 
 IS 
 5() 
 Sli 
 i)2 
 110 
 12!) 
 117 
 
 " " " (i 
 
 7 
 
 tt (i ti v^ 
 
 tl <1 I, j) 
 
 " !0 
 
 Provided (hat nothing in this section contained shall apply to such insurances 
 on I he lives of children under ien years of age as were in force on the fourteenth day 
 of ,\pril. 1S|)2, or ajiply to insuraiu'e on the lives of children of any age where the 
 person all'ecliiig the insurance has a pecuniary interest in the life of (be assured. 
 
 oT) V. c. :«), s. :t5(;(). 
 
 (H) Where the age of the assured is at the date of the con(rac(, less than ten 
 years, and the insuring corporation has knowingly, or without sullicieut encpiiry, en- 
 tered into any contract prohibited by the next priu'eding subsec(ion, the preniiunis 
 ])aid thereupon shall be recoverable from the corporation by the person or persons 
 paying the same logether with legal interest thereon. 55 V, '.VJ. s. .15 (1). 
 
 (4) Kvery corporation uiidertakiiig orelleeliiig insurances on the lives of ehililren 
 under ten years of age shall print subsections 1, 2, li, I iind 5 of this section in con- 
 s])icuons type upon every circularsolicit ing. and upon every .ipiilieat i(>n for, and every 
 instrument of contract of. such insurance ; and any corit raven lion of this subsection 
 shall be punishable as for an ollence against section 8,5, the iirecedings and jicnalty 
 
■it 
 Hi' .'lis 
 
 ONTARIO ENACTMENTS. 
 
 781 
 
 u 
 
 cniicted ill which section sliiill e<niiilly aiiply to iiii (dleiice (•()tiiiiiillf(l jij,'iiinst lliis 
 silhst'cljoii. .V) V. I'. ;{!•, s. li.'i (.")). 
 
 I'i'()\ i(h'il tliat iiisti'iiil of priiiliiij; tlit- iiiiittt>r rei|iiii't'il l)y Iliis suljscctiou, I lie 
 cornpauv iiiiiy with tlic coiiscnt in writirijr of tlic lnsui'aiu'i' Ucfri,<|,-,i|. ppjut i,,. stamp 
 till- following woi'ds in lieu llici'i'of :— " Any insurance uiKU-rtaki'ii or ollcrcd to he 
 uncU-rtakcn in the Province of Ontario in respect of t lie lives of children under ten 
 years of iiKc is suhjeet to the restrictions enacted l)y sul)-sections 1 and 5 (inclusive) 
 of section loO of Thi: Ontario Insurancr Art, /.v.'C" 5»1 V. c. :W, s. 1(1 1 1 1 1. 
 
 (5) fn respectof insurances heretofore or hereafter effected on the lives of persons 
 under twenty-one years of awe, wiiere such insurance has been ellectcd hy a |)arent 
 upon th(> life of his (diild, such insurance shall not he deemed to lie invalid In reason 
 oidy of the |)areiil's want of pecuniary intt>rest in the life of the child. ."),') V. c. :!!•, 
 s. :<;) ((U. 
 
 ((ii In respei't of insiira,nee heretofore or hereafter, liy any person not of the full 
 afije of twenty one years hnt of the aire of lift ecu of years lU' ui)wards edected upon his 
 own life, for either his own l)enelit or for the henetit of his father, mother, hrother 
 or sister, the .issured shall not by reason only of his ininoiity. lie dcenied incom|)e- 
 tent to contract for such insnraucB or for the surreiKier of such insurance, or to ^live 
 a valid disch.irire for any lieiielit aciruin^. or for money payable un<lcr the contract. 
 .").") \'. c. :«», s. :i.") (7». 
 
 l.M.-d) Hvery pei'son of the full aije of l wenfyone years shall bi? deemed (o 
 have an uidimitcd insurable interest in his own life ami may ellecl hniin Jiilr at his 
 own charge in-ur,vnce or insuiances of his own person for the whole term of life, or 
 any shorter term for the sole or partitil benefit- of himself, oi- his esl.-ite or any oilii-r 
 person, persons or corpoiation wh.itsoe\'er, w;iet hersuch ot her beneliciary has or has 
 not an insurable interest in the life of the assuml. 'I'he insurance money may be 
 made payable to any person either for his own use or as trustee feu- a'lotber person. 
 
 (2) If the policy was elleeted and premiums paid by the assured with intcni to 
 defraud his creditors, the creditors sliall be eiililled to receive out of the sum se- 
 cured ,-in amount. e(pial to the premiums so paid. It. .S. (),, IS.sT, e. \'M, w. 'I'l. 
 
 (:i) 'I'he assured may dcsiLriiate or ascertain the beneticiary liy the contract ol in 
 Nurance or liy instrument in wi'i tint; attached to or endorsed on, or identifying (lie 
 said contract by nnnilier or otiieru ise, and may by tli • said contract or liy the above 
 mentioned, or other like instrument apportion the insui-aiue moue> . or liy like in 
 strmnent from time to time reapfiorlion the s.une, or alter or revoke the benelils. oi- 
 trusts or a(hl or substitute new beneficiaries, or trustees, or (li\erl llie iiisiir.ince 
 money windly or in part to himself or his estate, provided that (he assured shall not 
 alter, or revoke, or divert the benelit of any person who is a beneliciary for \alue; 
 nor shall t he assured diveri the benefit of .i person who is of the cl.iss of preferred 
 beneficiaries to a person not of the said class or to the assured himself, or to his 
 estate. 5!) V. c. l.'i. s. -1 cii. 
 
 (1) This section applies not only to any future conti'act of iiisiirance. and loanv 
 ileclaratiou made on or relaliiiK '" any sueli contract, but also to any contract of 
 insurance heretofore issued and declaration heretofore made. 
 
 (.")) Nothing contained in this Act shall be lield or construed to restrict or inter- 
 fere with the ri,t;ht of any person to eU'ecf or assinn a policy for the benefit of any 
 one or more beneficiaries, in any other mode allowed by law. K. .s!. (). |ss7 .c. i:i(i, s. 2;). 
 
 ((i) If one or more of the beiielieiaries die in the lifetime of the assured, iiid no 
 apportionment or otlier disposition is subseipiently made by the assured, the insur- 
 ance shall he for the benefit of the surviviiii? beneficiary or benetl<iaries in eipial 
 shares if more than one; and if all the beneficiaries die in the lifetime of the as- 
 sured, the benefit of the contract and the insurance tnoney shall form part of the 
 estate of the assured. IX. S. O. 1HH7, c. VM, s. )>. 
 
 (7) Until the insurer has received the orij;inal or a copy of any declaration, 
 apportionment, will or otlier instrument or disposition in writing iit!ectin« tlie in- 
 
 % 5i! 
 
782 
 
 INSURANCE LAW OF CANADA. 
 
 P' 
 
 snniiicp moneys or any portion thereof, or of any appointment or any revocation of a 
 tnistee, tlie insurer may ileal with ami ol)tain a vall<i discliarf^e from the assured, 
 or (as in tlie resi)ective case may l)e) with and from liis lieneflciaries (such lienedci- 
 ■irles not Ijeinj; persons uruler incapacity), or witli and from liis trustees, executors, 
 administrators or assigns in tlie same manner and witii tlie lilte ellect as if such 
 declaration, apportionment, disposition, appointment or revocation had not l)een 
 made. .511 V. c. t"), s. o. 
 
 I.lii.— In every contract of insurance against accident or casualty, or disability, 
 total <u' partial, the event insured against shall be deemed to include any bodily 
 injury occasioned by external force or agency, and either happening without the 
 direct intent of the person injured, or happening as the indirect result of his inten- 
 tional act, such act not amounting to voluntary or ni'gligeut exposure to unneces- 
 sary danger, and no term, condition, stipulation, warranty or proviso of tlie contract 
 varying the aforesaid obligation or liability of the corporation shall as against the 
 assured have any force or validitj'. 55 V. c. Ml), s. ISli. 
 
 15;J. — (1) Where the event has happened on the occurrence of which any benefit 
 or insurance money is payable under the contract, but the amount payable is 
 matter of dispute, tlie amount payable by the insurer to the beneficiary sliall prima 
 I'acir be the maximum amount stated or indicated in the contract, and it shall lie 
 on the insurer to prove the contrary. .55 V. c. ;W, s. 11 (1). 
 
 el) If, when a claim accrues under a contract, the insurer otfers the claimant a 
 less sum than the maximum named in the contract, and either oilers no expl.mation, 
 or alleges as a reason for not paying the maximum, that the insurer's general con- 
 tract fund, or some other fund is insullicient, the claitnant shall, on written notice 
 to tlie insurer, be entitled as of right, to inspect personally or by agent, all books 
 anil documents ridating to the contract funds generally, or the fund alleged to be 
 insullicient. 55 V. c. Hi), s. 4(! (1). 
 
 (:t) It the insurer refuses or neglects to atl'ord the claimant a reasonable oppor- 
 tunity of inspection as in the last sub-section provided, the claimant may tile with 
 the Insurance Kegislrar, an allidavit. to llie etl'ect that he rightfully claims under a 
 certain contract of the insurer, giving particulars sufflcieiit to identify the contract, 
 or if roiiuireil, producing the contract, and that the insurer has refused or neglected 
 to aH'oril him opiiortunity of inspection as aforesaid, thereupon the Insurance 
 Registrar may, under his hand and seal, give the claimant or his agent an order to 
 inspect on a day named ; and neglect or refusal thereafter to allbrd him an oppor- 
 tunity of inspection, shall bo an oU'ence, punishable as an olVence or oll'ences com- 
 mitted against section S5. the proceedings and penalty enacted in which section 
 shall eijually apply in tiie case of an olleiice against this section. .55 V. c. H!), s. 4li (2). 
 
 l.'>4.— (1) When the insurance money becomes due and payable, it shall be paid 
 within the time ])ri'scvibed by section 80, and according to the terms of the policy or 
 of any declaration or instrument as aforesaid, and shall, in ihe case of preferred 
 benellciaries, be free from the claims of any creditors of the assured except as in 
 section 151 provided. U. S. O. 1SS7, c. 13.5, s. 10(1). 
 
 VI) Where the insurance money or part thereof is for the benelit, in whole or in 
 part, of infants, and the infants are mentioned as a class and not by their indi- 
 vidual names, the money shall not be payable to the infants until reasonable proof 
 is furnished to the insurer of the number, names and ages of the infanta entitled. 
 U. S. O. 1SS7, c. 130, s. 10 CD. 
 
 \Tiii.—(\) The insured may, by the policy or by his will, or by any writing 
 under his hand, appoint a trustee or trustees of the money payable under the con- 
 tract of insurance, and may from time to time revoke such ap|)ointment in like 
 manner, and ajjpoint a new trustee or new trustees, and for the investment of the 
 moneys payable under the contract. Payment made to such trustee or trustees 
 shall ilischarge the corporation. R. S. O. 1887, c. l.'Ki, s. 11. 
 
BB 
 
 Mi 
 
 ONTARIO ENACTMENTS. 
 
 788 
 
 V-) U no trustee is named in the eoiitnict of insurance, or appointed as men- 
 tioned in sul)-section 1, to reeeive tlie sliares to wliicli infants are entitled, tlieir 
 shares may l)e paid to I lie executors of the last will and testament of the assured, 
 or to a Kuardian of tlie infants duly appointed by one of the Surroi;ate Courts of this 
 Province or by the High Court, or to a trustee ajjpointed by I he last named Court, 
 upon the application of the wife, or of the infants or their guardian, and such pay- 
 ment shall be a good discharge to the insurance corporation. 
 
 (;j) A guardian appointed under subsection 2 shall give security to the satisfac- 
 tion of the Court or Judge for tlie faithful performance of his duty as guardian, and 
 for the proper application of the money whicli he may receive. 
 
 Provided that where any insurance money not exceeding §:{,(HH) is payalile to the 
 wife and children of the assured, and souu- or all of the children are infants, the 
 Court or Judge shall have discretion to appoint the widow of the assured, being the 
 mother of such infants, as their guardian without security. 
 
 (4) Where probate is sought in respect of a will for the sole purpose of obtaining 
 insurance miney. the fees payable on an appointment of a guardian or representa- 
 tive shall be .as follows : 
 
 Where the insurance money does not exceed .*il,OI)0, Jijil : where the insurance 
 money exceeds .Ijil.OtHt, but does not exceed 4i2,OI)(), §(! ; where the insurance money 
 exceeds $2,000, but does not exceed .^;),UIK), :§H ; and such fees shall be regulated in 
 the manner prescribed by section 09 of Tlir Siirruj/iifr Coitrtu Act. Cf. I{. S. (). IbST, 
 c. VM, s. 14. 
 
 (.")) Subject to the express terms of the trust instrument (if any), any trustee 
 named as provided for in subsections 1, 2 and U, and any executor or guardian may 
 invest the money received in any security in which trustees under the law of the 
 Province may invest trust funds, and may from time to time alter, vary and trans- 
 pose the investments and apply all or part of the annual income arising from the 
 share or presumptive share of eacli of the infants, in or towards his or her mainten- 
 ance and education, in such manner as the trustee, executor or guardian thinks fit, 
 and may also advance to and for any of the infants, notwithstanding his or her 
 minority, tlie whole or any i)art of the share of the infant of and in the money, foi' 
 the advancement or preferment in tlie world, or on the marriage, of such infant. 
 K. S. O. 1887, c. lao, 9. i:{. 
 
 15«.— (1) Where under acontract made or bylaw deemed to be made in Ontario 
 or a contract issued by an insurance corporation having its head oflicc in Ontario, 
 the insurance money is payable to the representative of a jierson who at his deaili 
 was domiciled or resident in a foreign jurisdiction, and no person has become his 
 personal representative in Ontario, the money may, on the expiration of two months 
 after such death, be i>aid to the personal representative appointed by the Court of 
 the foreign jurisdiction, jirovided it appears upon the probate or leltcrs of adminis- 
 tration, or other like document of such court, or iiy a certilicale of the .Judge, under 
 the seal of the Court, that it has been shewn to the satisfaction of the Court thai 
 the deceased at the time of his death was domiciled or resident at some place witliin 
 the jurisdiction of such Court. R. S. O. 1887, c. Ui7, s. l:t7 (U: .51 V. c. 2.'), s. 1. 
 
 (2) When the contract of such insurance provides that the insurance mom y ni.ay 
 be paid to the personal representative appointed by the Court of the jurisdiction in 
 which the deceased was resident or domiciled at the time of his death, the money 
 may be paid to such representative accordingly at any time after the <le,ilh aforesaid 
 or according to the terms of the policy. 51 V. c. '_'."), s. 1. 
 
 (li) W^here under a contract made or by law deemed to be made, in Ontario the 
 insurance money is jiayilble to the representatives of a person who at the time of his 
 death was domiciled or resident in a foreign jurisdiction and died intestate, the 
 money may after the expiration of three months after such death, if no person has 
 become his pc-rsonal representative in Ontario be iiaid to the person or persons en- 
 titled according to the law of the foi-eigii jurisdiction to receive the money and give 
 
784 
 
 INSURANCE LAW OF CANADA. 
 
 !i (li.scliiii-!.'!' for tlie siiinc as if mucIi iiioiiuy wen- l>y llii- Icriiis of the contract p.'iMilile 
 in sncli lorcif^ri .jurisiiict imi. '<'! W c. .'i'J, s, 7. 
 
 (1) Wluii .1 It'sl.itor domiciled or ifsidciil in it lorci'.'ii jurisdict ion ili>poscs of tin; 
 iiisuriincc money l)y ii will, valid a'cordiiiK to the law of that jni-i.-dii't ion, then such 
 money may lie paid at any I line after death, or according to t he terms of the crintract 
 in that liehalf, to the person or persons entitled un(h'r such will to receive and niveii 
 valid <lischar;j;e for money payable in such fori'i^cn .jurisdiction, .'ij \'. c. ICt, s. 7. 
 
 (.■)) Where it appears upon any h'Ueis of guardianship or other like document, 
 relal in;,? to persons under iui apacily, issued or to he issued by a ("ourl in a foreijiu 
 jurisdiclion, or liy a ccrlilicair of the .ludj^e under the seal of such (.'ouil, that it has 
 been sln'wn to t he sat isfactiiin of such Court t hat the assured at 1 he mat ur it v of the 
 jiolicy was dondcileil or resident witliiu its .jurisdiclion, and where securily to the 
 satisfaction of llie Court has lieen niven liy llie ^suardian or other like ollici-r ap- 
 pointed by the said letters or document, then the lli^rh Court upon application for 
 the appointment of the said guiirdiaii or like ollicer as trustee under tliis seit ion, 
 nuiy dispense with the KiviiiK of security, provided it has also been shown that the 
 iiifanlM or other beiicliciarics iiiuler incapacity re-'ide « ithin the .jurisdiction of the 
 foreign Court, and that tlie proposed tiustee is a lit and proper person, and that the 
 security has, in accordance with the jiraclicc- of such foreiu;u Court , been .ijiven in 
 rc>|jccl of ami for the due apjilic.il ion and account of the moiu-y pay.ible under the 
 policy. ")() \'. c. ■VI, s. 7; .")!! V. c. in, s. I ci). 
 
 ((1) This section applies to policies heretofore issued as well ,is to policies to be 
 issue<l lieieafter, and whether the death has occurred liefnre the passiM,u;of this Act 
 or not. R. S. O. ISS7, c. I(>7, s. l:i7 tJl. 
 
 1.T7. Ml) If there is no trustee, executor, or guardian compi'tcnt to receive the 
 share of any infaci in the instirance money, and the insurer admits the claim or any 
 part thereof, the insurer at any time aftet the expiration of two moidhs from the 
 date of its admission of the claim or part thereof, may obtain an order fioiii the lliuh 
 (."ourt of the jiayment of the share of the infant into Court, and in sucli case the costs 
 of till- application sliall be paid out of the share (\iniess the Court otherwise directs), 
 aiul the residue shall be paid into Court pursuant to the order, and such payment 
 shall be a sullicie"! discharj;e to the insurer for the money (laid ; and the money 
 shall be dealt with as the Court may ilirect. H. S. O. 1SS7, c. l;«i, h. I.T (I). 
 
 (2) If the insurer does not within sixty days from the time that the claim is ad- 
 mitted, either pay the same to some person competent to receive the money under 
 this Act, or iKiy the same into the llinh Court, the said ("ourl may ujion apjilieilion 
 made by some one competent to receivi' the said money or by some other person on 
 behalf of the infant, order the insurance mcuu'y, or any iiart thereof, to be paid to 
 an.v trustee, executor, or guardian eompelent to ri^ceive the shuic. or to be paid into 
 ("ourt to be dealt with as the Court may ilirect, ami aiiv such payment shall lieajiood 
 diseharjie to the insurer. R. S. O. I8S7, c. i:i(i, s. 1.") (2». 
 
 {'A) The Court may order the costs of the applicvtion, and any costs incidental to 
 cstablishin.u: the authority of the party api)lyin.u; for the order, to be paid out of such 
 moneys, or by the insurer, or otherwise, as may seem .just, and the Court may also 
 order the costs of, and incidental to, obtaininj^ out of Court moneys voluntarily paiil 
 in by an insurer, to be paid out of siudi moneys. R. .S. O. ISS7, c. Hi), s. I."i (H). 
 
 I.5H.— (1) If a ijursoii who has heretofore ellected, or who hereafter ellects, a 
 insurance for the benetit of .iny juvferred beni'liciary or benelieiaries, wheiher sni 
 benellt appears by the terms of the policy or by endorsement thereon, or l)y an in 
 striiineut referring to and identifying; the pol'^y, linds himself unable to coidinue to 
 meet the premiums, he may surrender the policy to the instirer, and accept in lien 
 thereof a paid up policy for such sum as the premiums paid would repre.sent, |)ayable 
 at death or at the endowment aKe or otherwise, as the ease may be, in the same 
 manner as the money insured by the original policy if not surrendered would have 
 been payable ; and the company may accept the surrender and grant the paid up 
 
ONTARIO KNACTMENTS. 
 
 785 
 
 to 
 
 U'll 
 IsO 
 
 lid 
 
 l>olicy. iiotwitlislniuiiiiK any ilei'liiriitioii iir (liroclioii in favor of any prcfcircd lione- 
 llciiiry or lu'nfliciaiii'N. U. S. (). 1SH7. c. i:«l, s. 1(1. 
 
 {-) Tlic assurccl may, froai time to time, Ixiirow from tlic insuri'r, or from any 
 otlu-r corporation, company or person, on tlic sccnrity of the policy. Mich ..Miiis as 
 may lie ncccss.iry and Hliall be applied to keep tlie poli(;y in force, and on snch terms 
 and conditions as may l>e aKree<l on ; and the sums so borrowed, toKetlier with such 
 lawfnl interest thereon as may be agreed, shall, so lonj; as the contract remains in 
 force, be a (Irst lien on the contract anil on all moneys payable thereunder, notwith- 
 standing any declaration or direction in favor of any pr-eferred l)enelieiury or bene 
 liciaries. U. S. O. l.S,S7, c. bid, ..i. 17. 
 
 Cb Where all the beneliciaries, whether preferred or ordinary, are of full age, 
 they and the assured may surrender the contract of insurance, or assign the same, 
 either absolutely or by way of .security. K. S. O. 1SH7, c. VM, s. :il ; i31 V. c. )12, s. 4 ; 
 
 Ki y. c. :«», s. s. 
 
 (() Where l>y any contract of insurance or by the declaration endorsed upon or 
 attached to or identifying l)y its number or otherwise, any contract of insurance 
 (whether such ileclaration lias heretofore been or shall hereafter be made), it is pro- 
 vide<l that tlie contract shall be for the benelit of a person, and in the event of the 
 death of such person for the benetil. of another per.son, such lirst mentioned person 
 shall, if living, be deemed for the purposes of subsection ;i of this section, tlie person 
 entitled to be benefited under such contract. R. S. O. 1H87, c. i:»(. s. 23 ; .");< V. e. lid, 
 s. 7 (1). 
 
 (.1) This section shall apply not only to any future contract of insin-ance, and to 
 any declaration made or relating to any stich contract, but also to any contract of 
 inaurance heretofore is.sued and declaration heretofore made. W V'. c. 31), s. 7 (2). 
 
 150.— (1) Where a person (hereinafter called the assured) efTects insurance on 
 his or her own life, and either by the contract of insurance, or by instrument in 
 writing attached to or endorsed on, or identifying the said contract by number or 
 otherwise, decli-reu (in, insurance money or a portion of the principal or interest 
 thereof to be for the benefit of the husband, wife, children, grandchildren or mother 
 of the assured, then such contract shall (subject to the right of the assured to appor- 
 tion or alter as hereinafter enacted) create a trust in favor of the said beneficiary or 
 beneficiaries, according to the intent so expressed or declared, and so long as any ob- 
 ,iect of the trust remains, the money payable under the contract shall not be subject 
 to the control of the assured, or of his or her creditors, or form part of Ills or her 
 estate, when the sum secured by the contract beconjcs payable ; but this shall not be 
 held to interfere with any pledge of the policy to any pei-son prior to such declaration, 
 H. S. O. 1887, c. VM), 8 5 ; Xi V. c. Hit, s. 4, and s. .5 ; .5(5 V. e. 32, s. 8(1) (2) ; 59 V. c. 
 45, s. 2. 
 
 (2) The husbainl, w' !e, children, grandchildren and mother of liie assured shall 
 constitute a class which may bo known as "preferred beneficiaries," and all other 
 beneficiaries may be known as "ordinary beneliciaries." 
 
 (3) In the case of a policy or written contract of life insurance effected before 
 marriage, a declaration under this section shall be, and shall be deemed to be as 
 valid and efTectual as if such policy or contract had been efiected after marriage. .51} 
 V. c. 30, 8. 2. 
 
 (4) Wlien a contract of life insurance is elFected by an unmarried man, for the 
 benefit of his future wife, or future wife and children, but the contract does not 
 designate by name, or otherwise clearly ascertain a specific person as such intended 
 wife, the contract (not being witliin the intent of subsection 5 or (i hereofi shall be 
 con.strued as jirovided in sub-section 7. 53 V. c. 3!>, s. 3 (1). 
 
 (5) When a contract is ert'ccted as in sub-section 4, but at the maturity of the 
 con true . the assured is still unmarried, or is a widower without issue, the insur- 
 ance money shall fall into, and become part of the estate of the assured. RJ V. e. 
 40, s 3 (2). 
 
 60 
 
 ■n- 
 
 ;^^; 
 
Is ^ 
 
 1' 
 
 786 
 
 INSURANCE LAW OF CANADA. 
 
 1 4 
 
 ((!) When ii fontract of lifi' iiisiiriiiici> is ('(IV-cIimI by iin iiiiiniirrit^il inivii, for the 
 lieiioflt of his future wife, or future wife ami children, and tlie intench-d wife is 
 designated l>y name, or is otherwise eU'arly ascertained in tlie eontraet, hut the 
 inlended marriage does not, lake jilaee, all questions arising on such contract shall 
 lie determined as if this Act had not heeii passed. 5:! \'. c. ;<!•, s. H Ci). 
 
 (7) Where two or more benelieiaries are designated or ascertained l)\it no 
 ai>|i(irlionmenl as among them is made, all the said heneticiaricK shall he held to 
 share ennally in the same, and where it is stated in the policy or declaration that 
 the insurance is for the lienellt of the wife and children generally, or of the children 
 generally, without specifying the names of the children, the word " children " shall 
 he held to mean all the children issue of the assured, living at the maturity of the 
 I)()licy, whether hy his then or any former wife, and the xvife to henelit iiy the policy 
 shall he the wife living at the maturity thereof. K. S. O. 18h7, c. l:t(l, s. 7 (1). 
 
 (S) If one or more of the preferred benelieiaries in whose favour the apportion- 
 ment lias been made, die in the lifetime of the insured, the assured may, by an 
 instrunu'ul in writing, attached to or endorsed on or referring to anil identifying 
 (he policy of insurance, by nnnd)er or olherwise, declare that the share foi-nierly 
 apportioned to the jterson so dying shall be for the beneiit of such other person or 
 jicrsons as he may name in that behalf, not being other than one or more of the 
 class of preferred benelieiaries, and in default of any such <leclanition, the share of 
 the person so dying shall be for the beneiit of the survivors of such preferred bene- 
 lieiaries in e()ual shares. U. S. t). 1S87. l: VM>, s. S ; ■")!» V, c. I."), s. I (:i). 
 
 (it) This section ap)>lies not only to any future conlracl of insurance, and to any 
 declaration made on or relating to aTiy such contract, but also to any contract of 
 insurance heretofore issued and declaration heretofore made. H. S. (). lSh7, e. i:{(i, 
 sees. 1, -J, b : 51) V. c. :itl, sees, 'l, I, .5 ; M V. c. ;12, sects. .S (I I. {■!) ; T)!) V. c. I."), s. I. 
 
 HIO.--(l) The assured may, by an instrument in writing attached to or en- 
 dorsed on, or identifying the policy by its number or otherwise, vary a policy or 
 declaration or an apportionment previously made, ho as lo I'csli'ict or extend, trans- 
 fer or limit, the bem;lits of the jiolicy to the wife alone or to the chihiren, or to one 
 or more of them, or lo the mother or any other preferred buneliciary of the assured, 
 as a benelieiary or sole benelleiary, although the |)olicy is extn-essed or declared to 
 he for the beneiit of the wife an<l children, or of the wife alone, or of the child or 
 children alone, or of the mother, or such other prefei-red beiu'llciary, or for the 
 beneiit of the wife for life, and of the children after her death, or for the beneiit of 
 the wife, and in case of her death during the life of the assured, then for Ihe child 
 or children, or any of them, or for the beneiit of any one or more of the above- 
 nu'iitioned persons for life, and, after his or their decease, for Ihe beneiit, of any one 
 or more of the survivors ; or, although a prior deelaralion was so resti'icted ; and he 
 may also a|)portion the insurance money among Ihe persons so ipt ended to he 
 benelited : and may, from time to lime, hy instrunu'nl in writing attached to or 
 endorsed on the policy, or referring to the same, alter the ap|iortionmenl as he 
 deems projier; he may also, by his will mak(( or alter Ihe apportionment of the 
 insurance money ; and an ap|)ortionmen! made oraltered by his « ill, shall jirevail 
 over any other made before the dale of the will, except so far as such other appor- 
 tionment has been acted on before notice of the appoint nu'nt hy will ; and whatever 
 the ass\ired may, under this section, do by an instrument in writing attached to or 
 irnlorsed on or identifying the policy, or a particular policy or policies, hy number 
 »ir otherwise, he may also do hy a will identifying the policy or a part iitular policy 
 or policies by i\umber or otherwise, .'ill \'. e. I.j. s. 2 (U. 
 
 (2) " Apportion " or " apporlionnu'iit " in this section Includes and aulhori/es 
 any division, subdivision, reapportionmeul, or dispoHilion of insuratu'c moneys or 
 benelits among any of the class of persons who under this tiv any amending Act are 
 jieriions included in the class of preferred benelieiaries; and also includes and 
 authorizes any disposition of the said moneys or henefltH such as partly or wholly to 
 
liWililiHiM 
 
 mmmmmmm 
 
 Hi 
 
 ONTARIO ENACTMENTS. 
 
 787 
 
 III; 
 
 lo 
 
 or 
 
 tin- 
 
 )f 
 
 lild 
 
 iive- 
 
 OIU! 
 
 lie 
 
 1)0 
 
 or 
 
 he 
 
 tlio 
 
 'Villi 
 
 ijior- 
 -ver 
 
 lo 111' 
 
 iliur 
 jlii'V 
 
 ri/us 
 
 •s or 
 
 1 are 
 
 iin(i 
 
 Iv to 
 
 divest the right or to enlarge ordiiiiiiilsh (he interest of a heneficiiiry or henelieiiiries 
 uciiuired under iiiiy prior disposition of the .said moneys or lienelits, or such as to 
 suliHtitute one lieiiellciary of the said class for any other or others, or all others, or 
 conversely. 511 \'. e. I.'i, s. 2 (21. 
 
 Provided that the assured shall not hy virtue of the preceding suliseclions he 
 .iithorized to divert the said moneys, or lienelits from all of the said class to n person 
 not of the said class, or to the assured himself, or lo his cslate: or to divert the said 
 in.surance moneys or henefits, or any part thereof, hnin the original heneliciary 
 when the policy expressly slates that the l)enetlciai\ was a heneliciary for value. 
 5!) V. e. 15, H. -1 en. 
 
 ('^) Where it, is proved to the sal isfaclioii of tjie executive of .i regislereil friendly 
 society that any lieuellciary under an insuraiKe certilieate orconlracl of the society 
 is leading a criminal or an iniinoral life, then, and notwithstanding anything con- 
 tained in this, or any other Act of the Province, it shall he C( mpeteni dr ,c as- 
 sured, with the conseiil of the said executive, to declare either hy eiidois ii nt on 
 the certilieate oi- contract, or liy other writing, that all right, tit It- and interest of the 
 said lieuellciary in or to the lienelit under Ihe certilieate is forfeited and annulled; 
 and Ihereiipon llu .said right, title and interest shall lie forfeited and annulled 
 accordingly ; and the assured liy a like writing may then or tliereafler from time to 
 time make a new appropriat ion in accordance with the lawful rules of the society, 
 and may reappropri.atc the IkuicIU; and tin- right of the assureil in this liehalf shall 
 he in addition to his rights under this or other Acts of Ihe I'lovinee. ."w \'. c. IH, 
 
 8.4(1). 
 
 (t) Where the contract is made by an insurer other tli.iii as meiilinncd in siili 
 section .'I, then upon petition, and upon thr like facts as in the said siihsection 
 proved to the satist"aclioii of a .ludge of the High Court the .ludge may make an 
 order annulling the, henelil ami granting such other relief a^ under Ihe cireiiin 
 stances appears proper. 
 
 (.")) This section applies not only to any future contract of insiiiMiice, and to any 
 declaration made on or rcl.it ing lo iuiy such contract, Imt als'j to. my contract here- 
 tofoii" issued, and diH^laralion heretofore male, ."i" V. c. iH, s. I (:i»; oi) V. e. 1."), 
 s. -1 »:!). 
 
 Mil. til The assured may, in writ ing, reipiire the iii'-urer to pay the lion uses oi- 
 pro tits, or portions thereof, accruing under the contract of insurance, to the assured, 
 or to ajiply the sann^ in reduction of the annual premiuins payable hy tin? assured, in 
 Huch way as he may direct ; or to add the said liouusi's or prolits tii Ihe lienetit : and 
 the insurer shall pay or apply such honuses or prolits as the assured directs; and 
 according to Ihe rales and rules estahlished hy Ihe insurer: l'r<ivided always t hat 
 the insurer shall not lie obliged to pay or a) iply such bonuses or prolils in any other 
 manner than as lawfully si ijiiilateil in t he I'oiit lacl or t he .ipplical ion therefor. This 
 sc! lion aiiplies lo contracts iii;ide iH'fore the llh day of .Maieli, is.s], ,iiid lo bonuses 
 and prolits then declared in rcHpcet of such policies, as well as to policies thcii'aftcr 
 made and hereafter to he made. li. S, (). 1S.S7, c, IHli. s. IS. 
 
 (2) .Any contract of insurance may be surrendered or assigned : 
 
 id) Where the policy is for I he lienelit of children only, ,ind the children sur 
 viving are all of the full age of luenlyi)iie years, if I he as'-nrcd and 
 all such surviving children agree to so snri'cndcr or jissign ; in' 
 1^1 Where the policy is for the henetlt of both a wife and children, and the 
 surviving children are all of the full age of twenty-one years, if the 
 assured, and his then wife (if any) and all such surviving children 
 agree to so surrender or assign ; or 
 ((') Where the policy is for the benelit of a wife only, or of a wife and cliil 
 dren, and there are no ehililrcn living, if the assured and his then 
 wife agree to so Hurrender or assign. U. S. O. ISST. c. Illit, s. 7 ('2i. 
 
 
788 
 
 INSURANCE LAW OF CANADA. 
 
 -'. Additiorud provisions, applicable to Friendly Societifs only. 
 
 mil. — The additioiiid provisions contained in sections 163 to Ui.") inclnsivc sluilt 
 apply only to friendly societies registered as such under this Act. 
 
 10;i. — (1) A copy of all rules of a friendly society I'elating to its insurance con- 
 tracts and to the management and application of the insurance funds shall be 
 delivered hy the society to every person on demand, on tender of twenty-live cents. 
 55 V. c. ;«),s. ;«(!); 
 
 (2) If any officer or agent of a society, with intent to mislead or defraud, Olives 
 to any person a copy of rules other than the rules then in force, on the pretence that 
 the same are tlie rules then in force, he shall he guilty of an oll'ence; and shall, upon 
 summary conviction thereof before any Police Magistrate or .lustice of the Peace 
 having j\irisdiction where the ollence was connnitted, be liable as for an oll'ence 
 committed against section 85 of this Act. .i5 Vic. c. Hi>, s. H2 (2). 
 
 (H) Any x-evision of or amendment to the rules of a corporation directed in terms 
 of this Act by the Insurance Registrar to be made and made accordingly or purjiort- 
 ing to be so made alid certified l>y the said Registrar as conformable to his direc- 
 tion, or as assented to by him wlien assent in writing sulHces without direction, 
 shall so certified be transferred to the ottice of the Provincial Registrar, there lo be 
 filed and indexed, and the rules so certilied shall, notwithstanding the declaialion 
 or other instrument tiled under any general or special Act, be final and conclusive 
 evidence of the rules in force on, from and after the date of the said certificate until 
 any subsequent revision or amendment in like manner certified and filed, and so 
 from time to time; and until so revised or amended and the revision or amendment 
 is so certified, tlie prior c-rtiticd rules shall be l)inding and obligatory upon all mem- 
 bers of the corporation. 58 V. c. ;!4, s. 4 (1). 
 
 (4) Where at any time doubt arises as to what are the subsisting rules of the 
 corporation, the Insurance Registrar may hear and determine the ((uestion, and his 
 certificate tiled as in the ne.xt preceding 8ub-.seci.ion shall have the same effect as 
 therein enacted. 58 V. c. H4, s. 4 (2). 
 
 104.— (1) The liabilities of any member of a friendly society under his contract 
 shall at any date be limited to the assessments, fees and dues of which at tiiat date 
 notice luis been actually given by the society. 55 V. c. ;«», s. It!) (1). 
 
 Provided that the society with the assent in writing of the Registrar of Friendly 
 Societies may from time to time make other provision by its rules for the absolute 
 severance of a memlier and the determination of his liability ; and sucli otlier rules 
 together with the written assent, shall be transferred to the office of the Provincial 
 Registrar, there to be liled and indexed ; and on, from and after the day of the said 
 assent, the said rules shall be binding and obligatory upon all the membei-s until 
 superseded by other provisior in like manner filed. 
 
 IVovided also that in no case shall the period over which the said assessments, 
 fees and dues extend exceed twelve months. 58 V. c. 31, s. (I (5). 
 
 (2) Hy paying or tendering paynu'nt of said assessments, fees and dues, and 
 giving notice thereupon of bis withdrawal by a writing delivered, or by registered 
 letter to the society, any member shall become thereliy rclea.sed from all further 
 liability under his contract. 55 V. c. Hit, s. Hi) (2). 
 
 HI5.— (1) No forfeiture or sus|)eiision shall be incurred by any member of a 
 friendly society, or iierson insured I herein, by reason of any default in i)aying any 
 contributions or assessment, except such as are payable at fixed dates, until after 
 notice to the member stating the amount due by him, and apprising him that in 
 case of default of payment by him within a reasoiiai)lo time, not being less than 
 thirty days, to the proper ollicer, to be specified in such notice, his interest or benefit 
 will lie forfeited or suspended, and until after default has been inaile by him in 
 paying his contribution or assessinenl in accordance with such notice. " Fixed 
 
 ■,;'A ' :L'ja.-OijaL ' <« 
 
ONTARIi) ENACTMENTS. 
 
 789 
 
 date" in this .siilvsecl ion shall include any nund)ered day, or any Monday, Tuasday, 
 (or as the rase may hf), numbered, alternate, or rccurrinj?. of a stated month or 
 months. 
 
 For any purpose of this Act or of the rules of the society notice may etrectually 
 be fiiven it written or printed notice is delivered, or by registered j) ist prepaid w sen^ 
 to the member, or left at his last known place of abode or of business, by or in 
 behalf of the society. 
 
 Provided also that where under the rules or l)y-laws of the society a defaulting 
 mendier is entitled to be reinstated on payment of arri'ars, after a stated number of 
 daysdefault, this section shall not in any wise op(MMte to prejuiiice the rights of 
 such member. ,55 V. c. 30, s. 40 (1), 
 
 (2) When the benelft of the contract is stipulated to be suspended or reduced or 
 forfeited for any other reason than fm- nonpayment of premium moneys, or money 
 in the nature thereof, no such additional condition suspending, reducing or forfeit- 
 ing the benefit shall be valid, unless it is lield by the Court, or .Indge before whom a 
 (luestion relating to the contract is tried, to be just, and reasonable under the 
 circumstances of the case, such decision to be subject to review nr appeal. 
 
 Provided that in any contract of which total abstinence from intoxicating 
 lii|Uor.s is made an express condition, such condition shall be deemed to be just 
 and reasonable. nH V. e. HO, s. 40 (2). 
 
 lONTIiAirs ()|- l-IKK I. NSC DA. Nil;. 
 
 /. (ieneriil pvovisumx. (All Fiit- Iiisurdnce Cuinixinies.) 
 
 too. — Kvery company license<l and registered for the transaction of lire insurance 
 may, within the limits prescribed by the license an(i registry, insure or reinsure 
 dwelling houses, stores, shops and other buildings, household furniture, mer- 
 clnindises, machinery, live stock, farm prod\n'e. and other commodities, against 
 damage or loss by lire or lightning, whethei' the same happens by accident or any 
 other means, except tliat of design on the jiart of the assured or by the invasion of 
 an enemy, or by insurrection. R. S. t). IS'^7, c. lliT, s. lOS. 
 
 1<I7.—(1) t'ontracts of lire insurance shall not exceed the term of three years ; 
 and the insurance of nu'rcanlile and manufact\iriiig risks slwill, if on the cash 
 system, be for ti^rms not exceeding one year. H. S. (). 1SS7, e. KiT, s. KKi. 
 
 Provided that contracts of lire insurance by any mutual or cash nmtual lire 
 insurance cmnpany may be for any term not exceeding four years. ">•_' \'. c. HO, s. I, 
 (2) Any contract tliat may be made for one year or any shorter period on the 
 premium note system, or for three years or any shortei- period on the cash system 
 may be renewed at the direction of the board of directors by renewal reeeip instead 
 of policy, on tlie insured jiaying the rei|uired preniium, or in I he ease of a contract 
 on the premium note system liy giving a new |)rePMium note or undertaking; and 
 any cash payments or premium notes f(ir renewal nnisl be made at the I'ud i)( I lie 
 year, or other period for which the premium note wa^ granted, otherwise the policy 
 shall be null and void. 1{. S. (). 1SS7, !•. HIT, s. liiT : ."iii V. c. IL'. s. i) dl. 
 
 -'. Sliifidiiri/ ('iiikIIHoiis and l'i'(iri.sii)iis liildliiiii '/'/ii'rrfii. 
 
 (Hlii(li)iff III/ fin' liisiirii iici' ruii/riiclfi irliii/Hiiriir in Dnhirin.) 
 
 H\H. The conditions set forth in this section shall, as against the insurer, be 
 deemed to be part of every contiael , (whet her se.ded, written or oral,) of tire iiisiir 
 ance hereafter entered into or renew eil or otherwise in force in Ontario with respect 
 to any pro|ierty therein or in transit I herefrom or thereto, and sliall be prinleil on 
 every sncli policy with the heading Slithilnrii ('niiililiniis, .iiid no stipul.ition to the 
 contrary, or providing lor any variation, aihlit ion or omission, shall be binding on 
 the assured unless evidenced In the manner prescribed by sections Kilt ami 170. i{. S. 
 O. iHrtT, c. H17, s, 114. 
 
790 
 
 INSURANCE LAW OF CANADA. 
 
 SlutiUonj Conditions. 
 
 (1) If any person or i)ersoiis insures In's or their buildings or goods, and causes 
 tlie 8a'ne to be descriljod otlierwise tliau as tliey really are, to tlie prejudice of the 
 compatiy, or misrepresents or omits to communicate any circumstance which is ma- 
 terial to be made Ifuown to the company, in order to enable it to ju<lge of the risk it 
 underrakes, sucli insunince shall be of no force in respect to the property in reganl 
 to which the misrepresentation or omission is made. H. 8. (). I8S7, e. Iti", s. Ill (1). 
 
 (2) After application for insurance it shall l)e deemed that any ))olicy sent to the 
 assured is intended to be in accordance with the terms of the application, unless the 
 company i)oints out, in writing, the particulars wherein the policy dill'ers from the 
 ai)plication. R. S. O. 18S7, c. KiT, s. Ill VI). 
 
 (.1) Any change material to the risk, and within th(^ control or knowledge of the 
 assured, shall void the policy as to the part ad'ected thereby, \iidess the change is 
 jiromptly notified in writing to the company or its local agent; and the com|)any 
 when .so notilied may return the premium for the unexpired period and cancel the 
 policy, or may demand in writing an ailditional premium, which the ass\ired shall, 
 if he desires the continuance of I hi" policy, forthwith |)ay to the company : and if he 
 neglects to make such payment forthwith aft :'r receiving such demand, the policy 
 shall be no longer in force. U. S. O. 1.SS7, c. KiT, s. 114 (8). 
 
 (■1) If the pi-oiierty ins\ired is assigned without a wi-ittcii ))ermissi m endorsed 
 hereon by an agentof the company duly authorized forsuch purpose, the policy shall 
 hereby become void; but this condition does not apply to change of title by succes- 
 sion or by the operation of the law, or by reason of death. H. S. O. 18S7, c. HIT. 
 8. Ill (1). 
 
 (5) Where property insured is only |)artially damaged, no abandonment of the 
 same will be allowed unless b\ the consent of the company or its agent ; and in case 
 of removal of property to escape conllagrat ion, the company will contribute to the 
 loss and expenses attending such ac-t of salvage proportionately to the respective 
 interests of the company or companies and the assured. R. S. O. 18S7, c. 107, 
 8. UM')). 
 
 (()) Money, books of account, securities for money, and evidences of debt or title 
 are not insured. R. S. O. 1887, c. 1(17, a. IM ((>). 
 
 (7) Plate, plate glass, plated ware, jewelry, medals, paintings, sculptures, curios- 
 ities, scientitic and musical instruments, bullion, works of art, articles of vertu, 
 frescoes, clocks, watches, trinkets and mirrors are not insured unless mentioned in 
 the policy. R. S. O. 1887, c. 1(17, s. Ill (7>. 
 
 (8) The comjiany Is not liable for loss if there is any prior insurance in any other 
 company, unless the company's assent thereto appears herein or is endorsed hereon, 
 nor if any subseciuent insurance is etrected by any other company, unless and until 
 the company assents thereto, or unless the company does not dissent 'n writing 
 within two weeks after recei- ing written notice of the intention or desire to ert'ect 
 the subse(iuent insurance, or i oes not dissent in writing after that time and before 
 the subse<pient or further insurance is elTccted. R. S. O. 1887, c. 1(17, s. 114 (8). 
 
 (0) In the event of any other Insurance on the property herein described, having 
 been assented to as aforesaid, thei\ this company shall, if such other insurance re- 
 mains in force, on the hajjpening of any loss or damage, oidy be liable for the pay- 
 ment of a ratable proportion of such loss or damage without reference to the dates 
 of the different policies. R. S. O. 1887, c. 1(17, s. 114 (D). 
 
 (10) The company is not liable for the losses following, that is to say : 
 
 (n) For the loss of property owned by any other party than the assured, un- 
 less tlie interest of the assured is stated in or upon the policy. R. S. O. 
 1887, c. 1(17, s. 114 (!(•)(«). 
 (b) For loss caused by Invasion, insurrection, riot, civil commotion, military 
 or usurped power. R. S. O. 18K7, c. 107. s. 114 (101 (h). 
 
ONTAKIO ENACTMENTS. 
 
 791 
 
 in- 
 O. 
 
 (r) WluTo the insurance is upon buildings or their contenlss— for loss cau.-sed 
 l)y the want of good and substantial brick or stone chininoys ; or by 
 ashes or embers beinj^ deposited, witli the knowledf^e and consent of 
 the assured, in wooden vessels; or by stoves or stovepipes beiiitr, to 
 llie Iviiowledne of the assured, in an unsafe condition or improperly 
 secured. K. S. O. ISST, c. I(i7, s. lit (10) (c). 
 
 01} For loss or damage to jioods destroyed or damaged while undergoing any 
 process in or by which tlie application of fire heat is necessary. |{. iS. 
 O. 1887, e. 107, s. 111(101 (</.) 
 
 (c) For loss or damage occurring to buildings or to their contiMits while the 
 buildings are l)eing repaired by carpenters, .joiners, plasterers or 
 other workmen, and in conse(|ueiiee thereof, uidess permission to 
 execute such repairs has been previously granted in writing, signed 
 by a duly .authorized agent of the comjyany. Hut in dwelling houses 
 (ifl;een days are allowed in each yi^ar for incidi'Utal repairs, without 
 such permission. U. S. O. 1S()7, c. 107, s. 114 (f). 
 
 (/) l''or loss or damage occurring while pi'lroleum, or rock-e.irth or coal oil. 
 caniphene, gasoline, burning llnid, benzine, naphtha or iiny licpiid 
 prod\icts tliereof, or any of their constituent part.s (reliiiedcoal oil for 
 ligliling puri)oses only, not exceeding live gallons in (pianl'ty, or 
 Inbricatiiig oil not l)eing crude pelroleuin nor oil of less si)eci(ic grav- 
 ilv than re(|nired by law for illuminating purposijs. not exceeding 
 live gallons in (plant ity. excepted), or more than tneiity-llve pounds' 
 weight of gunpowder is or are stored or kept in I he l)nildiiig insured 
 or containing the properly insured, uidess ptn-inission is given in 
 writing l)y the company. U. S. O. ias7, c. 107, s. Ill 10 (/). 
 
 (11) The company will make good loss caused by the explosion of coal gas in a 
 btiilding not forming part of gas works, and loss by lire caused by any other explo- 
 sion or by lightning. R. S. O. 1887, c. 1«7, s. 114 (11). 
 
 (I'J) Proof of loss must be made by the assured, although tht; loss be payable to a 
 third parly. H. S. (). 18,S7, c. I(i7, s. Ill (12). 
 
 (i:t) Any person entitlecl to make a claim under this policy is to observe tlie fol 
 lowing directions : 
 
 Ui) He is forthwith after loss to give notice in writing to the company. I{. 
 
 y. (). 1887, c. 107, s. 114(i:ha. 
 {b) Me is to deliver, as soon after as practicable, I'.s particular an account of 
 the loss as the nature of the case permits. R. S. O. 18H7, c. 107, s. 
 114 (l:i) h. 
 (c) lie is also to furnish therewith a statutory declaration, declaring : — 
 (I) That the said account is. just and true. 
 
 ,2) When and how the lire originale<l, so far as the declarant knows or 
 believes. 
 
 (3) That the fire was not caused by his wilful act or neglect, procure- 
 
 ment, means or contrivance. 
 
 (4) The amount of other insurances. 
 
 (5) All liens, and encumbrances on the sut).ject of insuriinco. 
 
 (0) The place where the propi'iiy insured, if )novable, was dei>osited at 
 the time of the lire. R. "s. (). 1S87, c. 107, s. 114 (i:i) i: 
 ill) He is in support of his claims, if reipiired and if practicable, to pixxluce 
 books of account, warehouse receipts and stock lists, and furnish 
 invoices and other vouchers ; to furidsh copies of the written portion 
 of all policies ; to separate as far as reasonably may be the daniageit 
 from the undamaged goods, and to exhibit for examination all that 
 remains of the property whiuh was covered by the policy. H. S. U. 
 1887, C.167, 8. 114 (13) d. 
 
792 
 
 INSURANCE LAW OF CANADA. 
 
 • 
 
 (p) He is to product', if rc'i|iiirc(l, a ciM-liliciiti' iukIit tlip Imnd of a miidistratc, 
 
 notary i)iil)lie, coiimiissioner for lakiiij; adidavits, or municipal dork, 
 
 residing ii> tiic vicinity in wliicli tlie tire liappcncd, and not coiicornod 
 
 in tlio loss or related to tlie assured or sntlerers, utating tliat lie has 
 
 examined the circumstances attending the (ire, loss or damaj^e 
 
 alleged, that he is ac(|uainted with the cliaracter and circumstances 
 
 of the assured or claimant, and t hat he verily helieves that the assured 
 
 has hy misfortune and without fraud or evil practice sustained loss 
 
 and damage on the sulijecl assured to the amount cerlided. H. S. O. 
 
 I^i85. c. 1()7. s. 114 (l;i)c. 
 
 (II) The above proofs of loss may lie made hy theanent of the assured, in case of 
 
 the absence or inability of the assured himself to make the same, such absence or 
 
 inability beiiiij; satisfactorily accounted for. K. S. O. 1HS7, c. Uii, s. Ill (II). 
 
 (15) Any frau<l or false statement in a statutory declaration, in relation to any of 
 the above partic\ilars, shall vitiate the claim. U. S. O. 1887, e. Ili8, s. Ill (!•")). 
 
 (16) If any dill'erence arises as to the value of the property insured, of the pro- 
 perty saved, or of amount of the loss, such value and amount and the i)roportion 
 thereof (it any) to be paid by the company, shall, whether the ritcht to recover on 
 the policy is disputed or not, and independently of all other tpiestions be submitted 
 to the arbitration of some person to be chosen by both parties, or if they cannot 
 agree on one person, tliei\ to two ( erst)ns, one to be chosen by the jiarty assured 
 and the other by the company, and a third to be appointed by the persons so 
 chosen, or on their failinji to auree, then by the Cotinty .ludKe of the county wlierein 
 the loss has happened ; and such reference shall be subject to the provisions of the 
 laws applicable to refei'ences in actions ; and the award shall, if the company is In 
 other respects liable, be conclusive as to tlie amount of the loss and projiortion to be 
 paid by the compiiny : where the fidl amount of the claim is awarded the costs 
 shall follow the event: aiul in other cases all <|uest:ons of costs shall be in the 
 discretion of the arbitrators, 
 
 (17) The loss shall not be payable until sixty days .'ifler the completion of the 
 proofs of loss, unless otherwise i)rovi(le<l for by the contract of insurance. R. S. O. 
 1887. c. 1((7, s. lU (17). 
 
 (18) The company, instead of making pavmeiit, may rejjair. rebuild or replace, 
 within a reasonable time, the property damaged or lost, f^ivini; notice of their inten- 
 tion within lifteen days after receipt of the proofs herein reipiired. It. S. t). IMS7, c. 
 1(17, s. Ill (18). 
 
 (lib The insurance may be terminated by the company by LriviuK notice to that 
 cH'ect, aiul, if nil the cash )»lan, by tendering therewith a ratable prop ution of the 
 premium for the unexpired term, calculated from the termination of the notice; in 
 the case of personal service of the notice, live ilays' notice. exeludiuK Sunday, shall 
 be K'ven. .Notice maybe given by any company having an agency in Oiitiirio by 
 registered letter addressed to the .assured at his last iiost ollite address not illed to 
 
 the company, and where 
 
 no a(l(tie> 
 
 lotilled, then to the (lOst otlite of the agency 
 
 from which the application was receiverl. and where such notice is by letter, then 
 seven days from the arrival at iiiiy post odiee in Ontario shall be deemed f^nud 
 notice; and the policy shall cease .after such tender anil notice aforesaid, and the 
 expiration of the live or seven days as the case may '"^- l^- i^- C- '''^•'^"' ''■ '''"> •'*• " ' 
 (lit). 
 
 {(I) The insurance, if for cash, may also be terminated by the assured by niviiif,' 
 written notice to that elleet to the company or its authorized a,a;enl, in which case 
 the company may retain the customary short lale for the lime the insurance has 
 been in force, .and shall repay to the assured the balance of the premium paid. 
 R. S. O. 1887, c. 107, s. Ill (]<))(,. 
 
 (UO) No condition of the policy, either in whole or in part, shall be deemed to 
 have been waived by the company, unless the waiver is clearly exi)ressed in writing, 
 signed by an aKent of the company. R. .S. O. 1887, c. 1(17, s. 11 1 CJI)). 
 
ONTARIO ENACTMENTS. 
 
 793 
 
 (21) An orticer or iigc'iit of the conipany, who asMinies on behalf of the company 
 to enter into iiny written aj^reeinent relating to any matter conneeted witli the 
 Insurance, shall bo deemed prima facie to be the a^eiit of liie comijanv for the pur- 
 pose. U. S. O. 1S87, c. 107, s. Ill (21). 
 
 (tJl) Rvery action or (iroceedin;? against tiie company for tlie recovery of any 
 claim under or liy virtue of tliis policy, shall be al)solutely barred, unless com- 
 nieiK'eil within tlu' term of one year next aftei tlie loss or damage occurs. R, S. O. 
 1877, c. HV2. .Sdiedule H. S. O. 1HS7, c. 11)7. s. lU (22). 
 
 (2:{) Any written notice to a eoni|)any for any purpos(> of tlu; st.ilutory condi- 
 tions, where tlu; mode thereof is not expressly provideil, may be liy letter delivere<l 
 at the head ollice of the company in Ontario, or by registered post letter addressed 
 to the com|)auy, its manager or i(gent,at such head ollice. or by such written 
 notice given in any other manner to an authorized agent of the eoniiiany. .">() V., c. 
 2(i, s. lit. 
 
 lOO. — If the insurer desires to vary the said conditions, or to omit any of them, 
 or to add new conditions, tliere shall be added on the instrument of contract con- 
 taining the printed statutory coiidil ions words to the following ell'ect. printed in 
 conspicuous type and in ink of a diU'erent colour. I{. S. (). I.s,s7, e. 1(>7, s. 11.). 
 
 he 
 
 111 
 
 iiK 
 se 
 as 
 d. 
 
 to 
 
 g'. 
 
 i'<trlatii)iis ill Conilillons. 
 
 " This policy is issued on the above Statutory Conditions with the following 
 variations and ad<iitions : 
 
 " These variations (itr «x llif case 111111/ he) are, liy virtue of the Ontario Statute 
 in that behalf, in force so far as, by (lie Court or .ludge befon- whom a ipiestion is 
 tried relating thereto, th y shall be held to be just and reasonable to be exacted by 
 the company." li. S. (). 1SS7. c. 1()7, s. 11,"). 
 
 170. — \o such variation, addition or omission, shall, unless the same is dis- 
 tinctly indicated and set forth in the maniu'r or to the ed'ect aforesaid, be legal and 
 binding on the assured; and wo (|uesliou shall be considered as to whel her any 
 such variation, addition or omission is, under the circnmstaiu'es, just and reason- 
 able, but on the contrary, the iiolicy shall, as against the insurer, be subject to the 
 stat\itory conditions only, unless the variations, additions or omissions are dis- 
 tinctly indicated and set forth in the manner or to the eiVect aforesaid. I{. S. i). 
 1S87, c, l(i7, s. 110. 
 
 Provided it shall be optioi'al with the insurers to pay or allow claims which are 
 void under the :tril, thi! llh. or the Slh Statutory Condition, in case Ihi' said in- 
 surers think tit to waive the objections nu'titioned in the said conditions. H. S. O. 
 1.S.S7, c. I(i7, s. 112. 
 
 171. -In case a policy is entered into or renewed conlainin'j: or including any 
 condition otherthan orditl'erent from the conditions si't forlli in siciion Itis ot ibis 
 Act, if the said condition so eonlaiiu'd or included is held, by the Courl or .ludge, 
 before whom a <pu^stion relating thereto is Iried, (o be not just and reasonable, su<'h 
 condilion shall be null and void, H. S. (). 1SS7. c. li>7, s, 117. 
 
 17a. — (1) Whire, by reason of necessity, .iccidcnl or misiaUi'. the conditions of 
 any contract of lire insurance on prope.-ty in this l*rovii\ce as to the proof to be given 
 to the insurance company after the occurrence of a lire have not been stiielly com 
 plied with; or where after a statement or jiroot of loss has been given in good faith 
 by or on behalf of the assured, in pursmmce of any proviso or condilion of such eon- 
 tracl, the company, through lis agent or otherwise, objects to the loss upon other 
 grounds than for imperfect conn)liance with such conditions or docs ni.l within a 
 reasonable lime after receiving s\ich si alement or proof notify the assured in writing 
 that such statement or proof is objected to. and what are the particulars in which 
 the same is alleged to be defective, aiul -so from time to time; or where, for any 
 
794 
 
 INSURANCE LAW OF CANADA. 
 
 oilier reason, the Court or .ludjic before whom ;i i|neslioii relating to such insurance 
 Is tried or iiKinii'ed into, considers it iiieiinital'le that the insurance should he deemed 
 void or forfeited by reason of imperfect complianee with such conditions- no objec- 
 tion to the sullieiency of such statement or proof or amended or s\ipplemental state- 
 ment or proof (as the ease may be) shall, in any of such cases be allowed as a 
 discharge of the liability of the company oti such contract of insurance wherever 
 entered into. K. S. (). 1887, c. 1()7, s. 118. 
 
 (2) If iti .any action or proceedinjj; upon a contract of lire insurance, the assured, 
 beinjj; plaint ill' in such action or proceeding, has in the opinion of the Court or .ludj^e, 
 wilfully neglected or \niri'asonably refused to furnish necessary information respect- 
 ing the property for which the insurance money is claimed, and if as a conse(|uence 
 of such neglect or refusal, the defendant company has been at expense in obtaining 
 information or evidence, the Court or .Judge may, in disposing of costs, take into 
 consideration the expense so incurred by the defendant conii)any. '>2 V. c. HI, s. 1. 
 
 I7;i.— A decision of a Court or Judge under this Act shall be subject to review 
 or appeal to the same extent as a docision by sucli Court or .Judge in other cases. 
 K. S. O. lSKl,c. 107,8. Hi). 
 
 iNVi:sii(iAiin.\ (II' i'iiii:s. 
 
 174. (ly Any .Justice of the IVace, or any one having lawful a\ithority to ad- 
 minister an oath or allirniatiori in any legal proceeding, may examine on oath or 
 solemn atlirmation any ])arty or person who comes before him to give evidence 
 touching any loss by lire in which any tire insurance coinjiany is interested, and may 
 adniiiMster any oath or atlirmation reciuired under this Act. ]\. S. (). 1887, c. U)7, 
 s. 120(1). 
 
 (2) On receiving a written recpiest from any odicer or agent of an insurance com- 
 pany with .security for the expenses of an investigation, any .Justice of the Peace 
 nniy at once ])roceed to hold an investigation as to the origin or ca\ise of any fire 
 that hius happened within his county or district, and as to the persons, if any, profit- 
 ing thereby. R. S. O. IHXl, c. I(i7, s. 120 (2). 
 
 (3) The Justice of the I'eace shall have power to send for per.sons and papers, and 
 to examine all persons that appear before him on solemn oath or aflirmation ; and he 
 shall keep a record of all such proceedings, and of all matters received in evidence 
 before him. R. S. (). 1887, c. 107, s. 120 (3) ; .58 V. c. 34, s. 11 (1), 
 
 (4) Any director or otlicer of the insurance company, or the assured, or any per- 
 son claiming utider the policy, or any person prejudicially afFected by any of the 
 evidence so far received, shall have the right to attend personally and by counsel, 
 the investigations or proceedings as party thereto, and to call, examine, cro.ss- 
 examine or re-examine witnesses, as the case may be. 08 V. c. U4, s. 11 (1). 
 
 (o) \o director or offlcer of the insurance company, nor any otiier person inter- 
 ested as hereinbefore mentioned, shall act as magistrate or coroner in any lire inves- 
 tigation ; nor shall he act for tlie magistrate or coroner as clerk, reporter or other- 
 wise, in taking down or recording the depositions or evidence. .58 V. c. 114, s. 11 (1). 
 
 (0) The two next preceding sub-sections shall equally apply to all fire investiga- 
 tions lield by coroner.s or Provincial Coroners under any law of the Province. .58 
 V. c. 34, s. 11 (1). 
 
 (7) J''or purposes of any investigation held under this last section the I'rovincial 
 Coroner or a Justice of the Peace may summon and bring before him any person 
 whom he deems capable of giving information or evidence touching or concerning 
 the fire, and may examine such persons on oath; and he shall reduce such examina- 
 tions to writing, and return the same to the clerk of the peace for the district or 
 county within which they have been taken, and the fees payable to a Justice of the 
 Peace in respect of such investigation shall be as herein enacted tor a Provincial 
 Coroner. 54 V. c. 37, s. 1 (u). 
 
I! 
 
 ONTARIO ENACTMENTS. 
 
 795 
 
 17.~». (I) It sliall 1)0 lawful for the LitMiti'iimit-CJovcnior in Coiincil toiipiinint 
 from lime to timo, under tlu' Grout Sciil, Provincial Coroners, ciidi of whom shall 1h? 
 by virt\U' of his apiKiintment both a coroner and a .justice of the peace for every 
 county and part of Ontario, for purposes of holdini; tire investigations. 51 \'. c. 'M, 
 s. I (II. 
 
 (2) The fees payable to a Provincial Coroner shall be as enacted by section 7 of 
 chapter 217 of the Revised Statutes of Ontario, 1HS7. .">l V. c. :{7, s. 1 (2). 
 
 {'•i) Before any Provincial Otroner shall enter on any investign'ion under this 
 Act, he sha'l obtain the consent in writinu; of either t he Attorney-Geneial or County 
 Attorney for the county wherein the invest ligation is iiroposed to be lield. ."il V. c. 
 :t7, s. I CO. 
 
 (4) This section shall be coListrued as one with cliapters sn, s:t and 217 of the He 
 vised Statutes of Ontario, 1S.S7. 
 
 (5) l''or purposes of any investigation under section 171 of this sect ion the .lustice 
 of the Peace or the Provincial Coroner shall have the same power an<l authority to 
 rocpiire and compel the attendance of witnesses and the production of documents 
 and the giving of evidence as a .lustice of the Peace has under articles 5S(), .jSl, .582, 
 5S;i oSl and oS,") of the Criminal Code. lSi)2. 
 
 iNsi'Ki rioN OK inschanci-; i ()MI'a\ii:s i.i(i:\si:i) iiv tiii-: I'HdviNCE. 
 
 luial 
 rson 
 iiiiig 
 lina- 
 liter 
 the 
 liciai 
 
 17(1. (ll The l.ieuleniuil-tiovernor in Council may appoint an ollieer to be 
 called the Inspector of Insuran(-e, who shall act under the insi I'uctions of the .Minis- 
 ter, and his duty shall be ti> examine and report to the Minister from time to lime 
 u])on all matters conueclcd with insurance, as carried on l)y the companies licensed 
 by the Province under this Act. U. S. O. IX'*~, c. 1(17, s. 1:{S (1). 
 
 (2) The salary of the Inspector shall be such sum ijci- annum as the I.egislal ure 
 .shall from time to time determine; and it shall be lawful to provide from time to 
 time such assistance as may be found necessary. I{. S. O. 1HM7, c. I(i7, s. Kis (2). 
 
 177. — The Ins))ector shall keep on tile the various documenls renuired by this 
 Act to be tiled in his ollice, and shall keep a record of all licenses issued by the Min- 
 ister. U. S. O. 1897, c. 1(17, s. i:«». 
 
 178.— (1) The Inspector of Insurance shall, personally or by deputy, visit the 
 head ortlce of every such company in Ontario at least once in every year, and shall 
 carefully examine the statement of the company as to iis <'onditi(in and all'airs, and 
 I'eport thereon to the Minister as to all matteis rei|uiring his attention and decision. 
 R. S. O. 1887, c. I(i7, s. 110(1). 
 
 (2) In order to facilitate the inspection of an insui'ance company's books and 
 papers, the company may be required by the Inspector to produce, and thereupon 
 the comi)any shall produce the said books and papers at the county town of the 
 county in which the head ollice of the Insuran'.'e company is situated, or at such 
 other convenient iilace as the Inspector may direct. The oHicer or ollicers of the 
 company who have custody of the books shall br entitled to be paid by ihe company 
 for the actual expenses of such attendance. U. .S. (). 1887, c. 1()7, s. 1 hi. 
 
 (U) The Inspector shall from such exannnation pfi'p:i''t' '""1 'i^y '>efore the Minis- 
 ter an annual report of the condition of every company's business, as ascertained 
 from such inspection, and such report shall be published forthwith after the com- 
 pletion ( hereof. K. S. O. I8m7, c. 107, s. 1 10 (2). 
 
 (I) It shall be the duty of the ollicers or agent of the company to cause their books 
 to be open for the examination of the Inspector, and otherwise to facilitate the 
 examination so far as may be in their power ; and the Inspector or deputy aforesaid 
 shall lia\ e power to examine under oath any ollieer or agent of the company relative 
 to its business. H. S. O. I8«7, c. I(i7, s. I II (U. 
 
 (.5) A rejiort of all companies so visited shall be enterc<l in a book kept for that 
 purpose, with notes and niemoraiida, showing the condition of each company ; and, 
 
796 
 
 INSURANCE LAW OF CANADA. 
 
 where a Hpceial examination lias been made, a special written report sliall be com- 
 municated to the Minister, statiiif^ the Inspector's opinion of tlie condition and finan- 
 cial standinK of tlie company, and all other matters deslrahle to be made known to 
 the Minister. H. S. (). lS,S7,'c. I(i7, s. 141 (2). 
 
 <(>) Kvery director, ollieer, mananer, at^ent, collector, auditor or em|)loyee of a 
 coini)any who knowingly makes or assists to make any untrue entry in any of the 
 company's hooks, or who refuses or ncKlects to make any proper entry therein, or to 
 exhii)it the same or allow the same to be ins])ectt'd and extracts to be taken there" 
 from shall be j^uilty of an oU'ence, anil the proc 'dure and penalty shall bo as enacted 
 in .su])section (> of section S'A of this Airt. 
 
 170.— (li If it appears to the Inspector that the assetsof any company are insuf- 
 ficient to. justify its contimiance of business, or that the company is unsafe for the 
 pul)lic toed'ect insurance with, he shall make a special report of the all'airs of the 
 company to the Miidster. H. S. O. 1«87, c. 107, s. llli (1). 
 
 (2) After full consideration of the report and a reasonable time bcinn ^i\ en to the 
 company to be heard, and if, after sucli further inipiiry and inve3ti}i;alion (if any) as 
 he may see proper to make, the Minister rejjorts to the Lieutenant-Governor in 
 Council that he agtri-es with the Inspector in the oi)inion expressed in his report, 
 then, if the Lieutenanttiovernor in (lounc^il also concurs in such opinion, an Order 
 may issue, suspending or cancelling; tlie license of the company, and prohibiting the 
 company from doiiiK any further business, and thereafter it shall not l)e lawful for 
 the com|)any to do any further business in Ontario until the susjiension or proiiibi- 
 tion is removed by the Lieutenant-dovernor in Council. R. S. 0. 1M87, c. 147, s. 143 (2). 
 
 180.— Notice of the suspension or cancelling of any license and prohibition from 
 doinj; any further business, shall l)e published in the Onliirio Gazette; and there- 
 after any person transacting a;!y business in behalf of the company, except for wind- 
 ing up its ad'airs ])nrsuant to section 7. shall be deemed to have contravened section 
 .S."), and shall be liable for each oH'encc to the penalty enacted in the said section. 
 K. S. O. 1887, c. 1(17, s. 144. 
 
 IHl.— Whenever the affairs of any insurance company doing bu.-iness in Ontario 
 appear to re(|uire the same, the Inspector of Insurance, with the approval of the 
 Minister, may, at the expense of the company, have abstracts prepared of its l)ooks 
 and vouchers and a valuation made of the assets and liabilities ; and the certificate 
 of the Inspector a|)|)roved of by the Minister, shall 1)0 conclusive as to the expenses 
 to be paid by the company in respect thereof. R. S. O. 1887, c. 107, s. 147. 
 
 IH2.— The Inspector of Insurance, or any officer under hirn, shall not be Inter- 
 ested as shareholders, directly or indirectly, with any insurance com])any doing 
 business in Ontario. R. S. O. 1887, c. 107. s. 1 18. 
 
 1H:J.— (1) Towards defraying the expenses of the office of the Inspectoi', a sum 
 not exceeding iSlt.OtK) shall be annually contributeil l)y the comjianles reiiuired to be 
 licensed by the Province under this Act. 1!. 8. O. 1887, c. 107, s. 1 1!) (1). 
 
 (2) The amount to be annually contribute(H)y the insurance companies undi^r the 
 provisions of the last preceding subsection shall be assessed pro rata and based on 
 the gross amount at risk as shown by tlie books of the several companies on the Hist 
 day of December next preceding. R. S. O. 1887, c. 107, s. 14!) (2». 
 
 (3) All sums under this Act payable to the Provincial Treasiiry shall be so paid 
 before the Issue of the license, and, in any disputeil case, the Minister's certitlcate, or 
 approval of an account certiffed by the Inspector, sliall as to the amount so payable 
 by each oi- any company be held conclusive. R. S. O. 1887, c. 107, s. 149 (li). 
 
 VOLUNTARY LIQUIDATION OK I'KOVINCIAI, INSITHANC'K COMrANIES. 
 
 IS4.— (1) When a Provincial Insurance Company other than a Dominion licensee 
 proposes to go into voluntary liquidation, at least one month's notice in advance 
 
ONTAUIO ENACTMENTS. 
 
 797 
 
 tor- 
 ling 
 
 be 
 
 sliiill lie nivpii to tlu' MinixtiT and lotlu' Insurance Ufuistrai, iinii like notice sliali 
 also tie p\il)lislu'(i liy tlie company in two consecutive issues of tlie Oiitiirlu (iaziile, 
 and in sonh'otlier newspajier sliotlld tlie Hejiistrar so recpiire : and I lie notice shall 
 state the date at which contracts shall cease to be taken by the company, also the 
 name and address of the company's li(|uidator. or tin- intention of the company to 
 apply on a stated day for the appointment of a licjuidator. R. S. (). ISH7, c. HI", s. 
 151. 
 
 (2) At the winding up of a Provincial Mutual or Cash-.Mulnal l''ire Insuriitice 
 Company, after notice has been given as re(|uired by subsection I, it shall be l.iwful 
 for the directors of said company to re-insure out of the reserve or surplus funds the 
 unexpired contracts for which premiums or premium notes have been taken. H. S. O. 
 1«K7, c. 1()7, s. l.-)2(l). 
 
 (M) The said reinsurance shall be .Hected in some company registered to transact 
 V)usiness in the Province and api)rove(l by the Minister. R. S. O. 1HH7, e. 1(17, 
 «. 152 (2) 
 
 (4) When any company is wound up each per.son contracted with on the cash 
 plan shall be entitled to a refuiul from the company tor the nneirned proportion of 
 the casli premium calculated from the date at which the com|)any, according to the 
 notice in sub-section 1, ceased to undertake contracts ; but this shall not destroy or 
 defeat any other remedy such person may have against the company in respect 
 thereof or for any other cause. R. S O. 1.S87, c. 1()7, .s. 1511. 
 
 (5) livery receiver (including therein every liriuidator or assignee) of a Provincial 
 Insurance Conii)any other than a I)omii\ion licensee, shall, forthwith, give such 
 bonds or .securities for his fidelity as would be reipiired of a receiver under section 
 188 ; and in case of dispute or doubt, the Master-in-Ordinary upon motion of any 
 creditor or person interested, or of the Insurance Registrar, sliall conclusively deter- 
 mine the kind and amount of such bonds or securities. The bonds or securities given 
 by any receiver shall be made and deposited as enacted in subsection 9 of the said 
 section. 
 
 (fi) Every liciuidator or receiver under this section shall (until the affairs of the 
 company are wound up and the accounts are finally closed) within seven (hiys after 
 the close of each month, file with the Court or other authority aiipointing him, and 
 also with the Insurance Registrar, detailed schedules showing, in such form as may 
 be required, receipts and expenditures, al.so assets and liabilities, and he shall, when- 
 ever by the authority appointing him, or by the Insurance Registrar so reipiired to 
 do, exhibit the company's books and vouchers, and furnish such other information 
 respecting the company's afTairs as may be reipiired ; and any receiver, assignee or 
 liquidator refusing or neglecting to furnish such Information, shall, for each ofl'ence, 
 be subject to a penalty of not less than ^.tI) nor more than .'?2(H), to be recovered on 
 behalf of Her Majesty for the use of this Province : and he shall in addition render 
 himself liable to be dismissed or removed. R. S. O. 1887, c. Ifi7, s. 151. 
 
 ■the 
 
 on 
 
 :{lsl 
 
 usee 
 mce 
 
 VOLUNTARY LIQUIDATIO.V OF I'lUIO.SDI.V .SII(IKTII-;S, OH Ol' Till': I NSt'UANCK KI'.Nns 
 THKKEOF : DISSOLUTION HV A SOCIKTV OK IT.S SfHOHl)I.\.V'rK ll.iANCIIRS OH 
 LODGES ; AMAI.tiAMATION OK llH.VNCIl KS OH I.()l)(iK.S. 
 
 185.— (1) Any registered friendly society (being a Provincial corporation), or any 
 insurance fund thereof, may be voluntarily wound up after resolution (hereinafter 
 called the winding-up resolution) passed in that behalf in a general meeting, ordinary 
 or special, after at least one month's notice of such intended resolution. Such resolu- 
 tion may be assented to and filed as provided in subsection H of section 1()3, and, 
 after snch assent and filing, the resolution shall have the same legal efJ'ect as therein 
 enacted. Such resolution nuiy provide for the transfer of the liabilities and assets of 
 the society or of Mie fund to some other corporation. 
 
II 
 
 798 
 
 INSURANCE LAW OF CANADA. 
 
 (2) Where then' are assets to be realized, dislributi'd. disposed of or dealt witti, 
 the wliidiiiK-np risoliition shall appoint a eoiiipeleiit and otherwise snllahle person 
 as licpiidator, and shall fix the anionnt of his bonds (wliieh shall be of sultieient 
 amount for the jmrposes of lii|uidation), and shall slate the amount and form of Ills 
 compensation. I'nless otherwise provided in the winding up I'esolntion, the then 
 exeeulive ollieers (otlier Ihan sneh one, if any, of the number as is appointed licinida- 
 lor) shall aet as a committee of inspeet Ion and shall andit the liiinidator's accounts 
 at least once a mouth until his accounts are closed, and shall certify their audit. 
 
 (H) I'reliminary to any winding up or transfer under this section, there shall be 
 (lied with the Insurance Kegistrar a st;itement made by one or more of the executive 
 olHcerH of the society or fnnd, declarinn, upon oath, the facts and cinniinslances of 
 the case, and annexing to the statement as exhibits a true copy of the winding-up 
 resolution, and also a tinancial statement sliowinj; in such form as shall be re(|uired 
 the liabilities and assets of the society or of the fund : such otliei- information then 
 ami from time to time duriii)^ the winding up shiill be furnished as the Insurance 
 Uegistrar shall reipiire, and the provisions of subsections ."> aiul (i of section IMI shall 
 eipially apjdy to a li(iuidator under this section. 
 
 (1) Where, in such a s<tciely as mentioned in sul)section 1, endowment or expect- 
 ancy insurance is transacted and there exists an endowment fund separate and dis- 
 tinct from tlie life insurance fund, then, by a resolution passed by a majority of tlie 
 persons assembled In a general meeting, ordinary or s])ecial, after at least one 
 month's notice of such intended resolution, the society may determiiu' that the en- 
 dowment or expectancy insui-iiiue shall be discontinued, and that the endowment or 
 expectancy fuiul shall tic distributed pro rata among the meml)ors then in good 
 staiKling (contril)ulors to such fund) according to the total contribution of each such 
 member to the fund. After the resolution lias lieen assented to and liled, as pro- 
 vided in snli-section I, the executive ollieers of the society may proceed to ascertain 
 the persons legally entitleil to raid< upon the fund, and may distribute the fund 
 among those so entitled: and such distribution shall discharge the society and all 
 ex"cutive ollieers thereof from all further or other liability in respect of such fund 
 and in respect of endowment or expect :incy contracts undertaken by the society. 
 
 (.5) In such case as mentioned in subsection 4, it' all the members interested in 
 the endowment or expectaiu-y fund are also interested as liolilers of life insurance 
 contracts, then the general meeting of the majority of the ineml)crs present thereat, 
 insteail of determining that the endowment or expectancy fund shall be distributed, 
 may determine that such fund shall be converted into, or merged in a life insurance 
 fund; anil after the said resolution has been assented to and filed as provided in 
 subsection 1, the endowment or exiiectancy fund shall be deemed to have l)ecome 
 and U) be a life insuraiu'c fund. 
 
 ((!> After the passing of such a resolution as mentioned in sulisection 1 or stib- 
 aection .5, it shall be unlawful for the society thereafter to undertake or transact any 
 endowment or expectancy insurance whatsoever. 
 
 (7) If the registered society shall at any time revoke the warrant or charter under 
 which a subordinate branch or lodge is opei'ated (whether such branch or lodge is 
 incorporated or not) such revocation shall be certilied in duplicate by the presiding 
 ollicer and the secretary of the society under the seal t 'lereof ; om- of the said dupli- 
 cates shall be Hied with the Kegistrar of Friendly Societies, the other with the Pro- 
 vincial IJegislrar ; and this certillcate from the tiling thereof in the ollice of the Pro- 
 vincial Uegistrar, shall, ip.to tacfo, operate to dissolve the subordinate branch or 
 lodge, and to vest its property, assets, funds and elTects in the in-esiding oflicer and 
 the secretary of the registered .society and their successors in oHice, as trn^tees for 
 the creditor.s and persons benellcially entitled; an,! the surjilus (if any) after the 
 liabilities are satistied, shall vest in the registered society to its owi; use absolutely. 
 50 V. c. ;«, 8. I U). 
 
 (H) A registere<l society organized on the lodge jilan may by a general or special 
 by-law or bylaws provide for the amalgamation of two or more of its subordinate 
 
1 
 
 ONTARIO EJ^ACTMENTS. 
 
 799 
 
 branches or lod^^es, niiil for tliu Irniisfer of Us liiihilitios mid assets to the new or 
 «•ontimlill^; hraiich or lo(i>j;e. 
 
 (it) In any winilinK np, transferor ilissohition under tliis seetion.or under sect inn 
 IS4, If donl)ts, dillienlties or disputes arise as to any matter wliatsoever, the Insurance 
 UeKislrar or the li(|Uid itor, or any of tlu' eoniinitlec of inspect ion. or any person in- 
 terested in tin- tsti'ie may apply to llie Masteriii-Ordinary wli) sliall tinally dispose 
 of tlie matter; and '.lie said Master may on the motion of any of the said persons 
 remove the liipiidator anil appoint another lii|uidator, or do any other matter or 
 Miinii which the Master njinht do in the windin^^-up lie^iin or proceeding; under .soc- 
 tions 1H(! to liM) of this Act ; or upon the motion of the said pisrsons or of tlie said 
 committee, tlu; said Master may liy order remove into his ollice the winding up, 
 transfer or dissolution which shall thereafler proceed as if hcHun or proceedinji 
 under tin? said sections. 
 
 (1(1) The diiiation of any windinir-up under this section shall not he prolonged 
 beyond the jieriod mi-ntion-d in subsection I of section 1!)1. all the provisions of 
 which snlisfctioii shall e(iually a|)ply to a li(|uidator under this section, 
 
 (II) Kor iiurposcs of any motion or other procoedinn under this section or section 
 IHI, it shall be snfHcient to entitle the proceeding? as in the matter of this Act and of 
 the Insni'ance corporation or fund c )ncernod : and at least two clear days' notice of 
 motion shall he ;;iv<'n unless otherwise directed by t he said .Master. 
 
 COMlH'I.SOnV I.K^l lUAI'IO.V OK J N.SIM! .\.\( K ( (MU'Oli ATIONS. 
 
 1H<I. (1) Sections 1S7 to I9(i inclusive shall apply to Provincial insurance cor- 
 porations other than those beiiip; wound up under sections IHl ami 18."), and other 
 than licensees of the Dominion of Canada within the meaniuff of s<'ction .")!). oO V, 
 c. :«», s. ."i2(l). 
 
 Provided that where the corporatiini is not constituted exclusively or cliielly for 
 insurance i)urposes, and the insurance hnuich and fund are compli'tely severable 
 from every other branch and fund of the corporation, then the word '•corporation " 
 for purposes of si^ctions 1H7 to liKi incbisive, means only the in-.uraiu'e branch of the 
 corporation, 55 V. e. 'M, s. (i (10). 
 
 (2) To .such corporations the said sections shall equally ajnily where the accounts, 
 account books, and ins\irance fund are in the charge, custody, possession or power 
 of two or more pei-sons : and in such case the words "receiver'' ami "interim 
 receiver" shall include all of siu'h persons unless and until other appointment or 
 other disposition of the matter is made by tlie Court. 55 V. c. :ii), s. 52 {-). 
 
 (3) The wiinlinii up of any cin'poration under this .\ct shall be dci'ined to com- 
 mence at the betiinnin;:; of the ilay on which the corporation became unregistered in 
 tei'ms of section 7ti ; and when the corporation is constituted for the transaction of 
 insurance exclusively, its corporate powers shall ipso facto cease and <ietermine 
 except for the sole purpose of winding up its atl'airs, 58 V. c. 31, s. (10). 
 
 (1) After the date of the comniencenn-nt of the winding np. any transfer of 
 shares unless n)ade by authority of the IIi,L?h (\)urt. or any alter.ition in the status 
 of members of the corporation shall l)e void ; and no suit, action or other proceeding 
 shall l)e proceeded with or cdinmenced aj^ainst the corporation except by leave of the 
 Court ami sub.jcct to such terms as the Court inipo-ics; anil every attachment, 
 sequestration, distress or execution put in force aj^ainst the estate of the corpora- 
 tion shall be void, 58 V. c. 31, s. (i (10). 
 
 (5) All contracts of employment entered into by the corporation shall I/jmo fucfo 
 cease and detevmine at the commencement of the winding up. 58 V, c, 31, s. (i (10). 
 
 ((!) In any wimlintj; up under this Act all the funds, assets and iiropcrty of the 
 liquidating corporation or any liquidating bra ich or lodge thereof shall be deemed 
 general assets of the liquidating corporation, branch or lodge, respectively, for the 
 payment of all debts of the corporation, branch or lodge respectively, and are not to 
 be applied to the payment of any particular debts, preferentially or exclusively, 
 except as otherwise herein expressly enacted. .58 \'. c. 31, s. (i (10). 
 

 800 
 
 INSURANCE LAW OF CANADA. 
 
 IS", (li I'pon llie li.ippi'iiing of iitiy of tlii' evoiits niciitioiu'd in .siilisectioii 1 
 iif scriiDii 7(i, or upoM iioti:'!' jjiveii by tlie Insuriiiico ItL'^istrar of the oorponil ion's 
 iTKisli'v lii'inn ciiiiet'lliMl, or where a corporation after the Hist Dfcomlier, 1H1I2, 
 iie'.j:li'rls to re^iister or renew its registry, the Ireanurer or other oflieor of the (tor 
 poratioii in Oiilario liaviiiL; in his ehartte, eustody. possession or power llie aeconnts, 
 aeconni hooks and insurance fninls of tlie corporation sliall i/i.si> fdtio anil dnrinn 
 the pendeniy of an action or appeal if any, liecoinc interim receivci- for the corpcua- 
 tiin and an ollieer of the lli.nh C'ourt snhject to its (!ontrol and direction, ami shall 
 so remain unless and until other appointment or other dispositio i of the matters is 
 made liy the Court, "m V. c. Hi), s. M (I). 
 
 VI) Kvery receiver (Includin.u; interim receiver) shall he sniiject to the summary 
 .jnrisdiclion of th(! ("onrt, in the same manner, and to tin-, same extent, as the ordi- 
 naiy ollicers ot the Court ant sidiject to its jurisdiction ; and the performance of his 
 duties may he <'()mpelled, .md all remedii's souj^ht or demanded for enforcinj^ any 
 claini lor a deht, privilej^e, mort;ia.?e, lien or rij^ht of property, upon, in or to any 
 elVecls or property, in the haii Is, possession or custody of a receiver, may Ixfohtained 
 hy an order of the Court on summary petition, and not hy action, suit, attachment, 
 seizure or other proceeding of any kind whatsoever ; and o'oedience hy the receiver 
 to such order may he enforced hy the Court under the penalty of imprisonment, as 
 for contempt of court . m- disohediencit thereto ; anil in the discrel ion of the Court he 
 may he; removeil, and with or without removal of the receiver, tlie Court may order 
 the aniounl of any daman*', loss or costs, ascertained to have been occasioned to the 
 estate! Iiy his misconduct, misfeasance, laches or neglect, to be; deducted from his 
 remuneration earned, or to be paid by him or his sureties. .")S V. c. Ill, s. (i (II). 
 
 C.i) Tlie interim receiver shall forthwith deposit in the chartered bank pre 
 scribed by rules Iti'i, 1(U and 1(15 of the t^jiisolidated Uules of Practice of the 
 Supreme Court of .ludicature, all moneys and securities for money in the ch.irj^e, 
 custody, possession or power of the corporation or of himself as otlicer of the cor- 
 poration, ami froTU time to time so deposit all further moneys and secutrities that 
 come into his possession or power as receiver, unless ami until otherwise ordered 
 by the ("ourt. .W V. c. :tit, s. 5:1 {2). 
 
 (1) On receiving from the interim receiver the moneys and securities for money 
 of the corporation, together with his written notice that by virtue of this Act, the 
 insurance corporation {iKimiiifi it) has become unregistered, and that he is interim 
 receiver for the same, the hank shall give the interim receiver a receipt for the 
 moneys, and a seiiarate receipt for the .securiti<'s, specifying each security, each 
 receipt being in triplicate ; and the said receipts shall acknowledge the moneys and 
 • he securities respectively to have been deposited by the interim receiver {luniihin 
 liim) to the credit of the unregistered insurance corporation iiiiiiiiinn tV), and as 
 subject to the order of the High ("ourt, and such moneys and securities when so 
 deposited shall be held to be deposited to the joint credit of the said imregislered 
 corporation and of the Accountant of the Supreme Court of .ludicature forOidario. 
 55 V. c. :t!t, s. ry,i (it) ; .-VS v. c. ;U, N. (i (12). 
 
 (5) The payment of interest on the moneys so deposited in the bank Hh all he 
 governed by the same rules as in the case of moin-y received hy the hank to the 
 credit of a cause. 55 V. c. liil, s. (i.'t (1). 
 
 ((I) Notice from the Insurance Registrar to any pi'i'sem or corporation (hat the 
 rcgisti'y of an insurance corporation has become unregistered, is sudicient notice 
 that the funds and securities of the unregistered corporation are subject solely to 
 the order of the High Court. ."vS V,, c. HI, s. (1 (11). 
 
 IHH. (I) .\f(er depositing llu' tnoncys and securities in the bank as rei|uire(l by 
 sub-sect ion H of section IS7, the interim I'eceiver shall foi thwilh 11 le an application in 
 the odice of the Master to the following ellect : 
 
ONTARIO ENACTMENTS. 
 
 801 
 
 Itiii' 
 
 I ice 
 I' t(i 
 
 l.y 
 ill 
 
 The Ontario I iiKiinincc Ait, ISUT. 
 
 Ill tlu' lliuli (lourl (if .hisliry, 
 
 III the matti-r of (ium;ic iif i-iir/iiinifioti), im nnri'Ki^ifercd iiisiii-.uwc coriHinilinii, 
 
 I, c;. I)., l>_v virtue, of 'I'/ir Oiitiirio Insufdiiri' .1(7, /A'',', (or of order iiiiKie llierc;- 
 miiler, IIS tilt ciu^r miiji III') interini receiver foi' the ulMiveiiiiined eorporiil ion, do on 
 the mounds net forlli in the ,•lnllex(^(l (lOidavit iippl.v lo tlie Court for eondriiiatioii of 
 nie in ni.v odiee of receiver (or for discharge of me from m.v olllee of receiver, iniurd- 
 iiifl IIS tlip iittrriin rrviivi'f nir/ilirn to l>e rinijiriiiiil or ill.ir/inri/ril), iind for an ap- 
 pointment of ii day on which my application shall he considered. 
 
 Dated at (liis dav ot IS 
 
 {'. I). 
 
 r,^ V. (•. ;«t, s. r.i (i». 
 
 (2) 'ro>;ether with the, forenoiiiK application the inlerim receiver shall tile in tlie 
 ollice of the Master one of each of the triiilieate receipts (^iveii hy I lie hanU as afore- 
 sjiid, and also an ailidavil to the folI(j\vin(f ell'ecl,the necessary varial ions heiiin 
 made where liy (literal ion of this .Vet, two or more piu'sons are made interim re- 
 ceiver, and join ill the allidavit, and the interim receiver shall forthw'Mi (Udiver 
 another of the triplicate receipts to the Accoiinlunl of the Supreme Court of Judi- 
 cature for Ontario, at ()s(,;oode Hall, Tor.iiilo. ."m V. c. Sit, s. "il Ci); TiS V. c. :il, s. ^^ 
 
 (i:t). 
 
 I'/ir Oii/iirio Iii.-iiiriiiice .1(7, is:i7. 
 
 In the IIikIi Court of .lustice, 
 
 III tlie matter of ((KOdc of t/u' ri)rj)iiriilioii} ;\.n unrenislered insiiraiice corpora- 
 tion and the application of C. 1)., interim receiver, liearing date I he day of 
 IH 
 
 I, ('. I)., hy virtue of llir (Inliirio / ii.iitriimr Art, /•>.''.', interim receiver iiiiniii ni/ 
 till' rorimriilioii) make oath and say : 
 
 1. 'I'liut the {niiiiiiiiij llir rorpnriitioii) ceased lo lie re(j;is|(>re(l under Tin Ihihirin 
 Inxurinire Act, /■>■''/, on I he day of IS , and that 
 
 thereupon liy virtue of the said Acl 1 hecame inlciini receiver for I he said corpora- 
 lioii. 
 
 :i. That when the said corporation so ceased to he renistiired, I held therein the 
 ollice of treasurer («/• us tlir riisr iiiiii/ /«( and I hat aK such ollicer I had in my nis 
 tody, ))Ossessi()ii or power the funds lorl/ii roriioriiti'ini liiirlni) I'liiuls sr/iuriilf inul 
 ili.ifliirt from llir finiils of Ilir iiisii rmicr liriiiir/i, lliiii siii/ insurance funds) of the 
 corporal ion. 
 
 It. Thai all Ihe moneys and secnrll ies for imine.N In ni.\' eiislmly, posM">si(in or 
 power whiui the said corporation ceased lo he renislered or sulise(|ueni ly and up lo 
 the lime of maUiiiL; deposit in the liaiiU as recpiired hy I he said \cl,aie fully and 
 truly set out in Ihe schedule A to I his my ailidavil ; also thai Ihe said depnsil 
 tliereof is correctly vouched for hy I he ban Us receipis he re I o annexed. 
 
 I. That the ol her assets of Ihe said corporation, including mone\s or secuill Ies 
 for money I hat liave (iniie into my chaise, euslody, possession or power since Ihe 
 lime of niaUiiiL; I he said deposit, are fully and truly sel on I in the schedule H lo this 
 my allidavit. 
 
 ."). Thai as treasurer {or utlirr nllici r, us llir riisr mii i/ hn it( ihe said Cnlpni illuii, 
 I l^ave seciirilies for llii' tailhfiil pel fiiniiance of niyihilies lo ihe corpor.'ii imi, as 
 follows : 
 
 (//()'(' s/iirlfi/ tlir srriiritiiS iiifiii : if honils, i/irr iitiiiiis iiiitl uihlrrssi s of llir 
 siirrlir.s II ml llir siiiiis in ir/iirli llo // iirr srrrriillfi lioniiil. 
 
 (I. That the said seciirilies are still in force and are now in i he ciislndy. posses- 
 sion or (lower of {lirrr i/irr llir iiiinir iiml mlilrrsy of llir riisloil iti n or hiiilii ). 
 
 7. That I have llled herewith an application in Ihe Master's ollice, prayiiiK the 
 
 51 
 
802 
 
 IN'-URANCE LAW OP CANADA. 
 
 Court to confirm iiie in my olHce us receiver (or to discharge me of my ofUce as 
 receiver, as the case nini/ h), and tliat the following are the material facts in sup- 
 port of the said applicat ion iliere state .shortly the material facts). 
 Sworn at ") 
 
 this day of 18 C Signature. 
 
 l)efore me, etc. J 
 
 5.''. v. c. 30, s. 54 (.3). 
 
 (4) Such aftidavit may he sworn to before any person duly authorized to admin- 
 ister oaths in any legal proceeding. Ho V. c. Hi), s. 'A (4). 
 
 (5) I'ntil the interim receiver is discharged of his otHce. or until new securities 
 are taken from him by order of the Court, the securities given by him to the cor- 
 poration and in force at the cesser of registry, shall continue in as full force and 
 validity as if llie corporation had contiimed to be registered. .55 V. c. 'M, a. HA {'>). 
 
 (tU On the tiling of the dooimonts specilied in this section, the Master shall issue 
 to the interim receiver his certificate of the tiling, and shall issue his order to the 
 person or persons having in his or their charge, custody, possession or power the 
 securities mentioned in the next preceding subsection, to deliver the same forth- 
 with at the Master's otlicc to be tiled, and on any refusal, neglect or delay to ol)ey the 
 order, such person or persons shall be liable to be committed for contempt of court, 
 as provided in sections 1K7 and liX). m V. c. Hit, s. .54 (ti). 
 
 (7) If no such securities as mentioned in sub-section "i, or if the existing securi- 
 ties are not in the opinion of the Master satisfactory or sutlicient, the Master nuiy 
 order the interim receiver within a time limiteil to give securities or to give other or 
 additional securities ; and on the inteiim receiver's default of compliance, the Mas- 
 ter may remove him and appoint another interim receiver. ."i5 V. c. IW, s. .54 (7). 
 
 (S) The Master may accept as the receiver's security the bond of any guariinteo 
 company duly registered \in<ler this Act. m V. e. 39, s. .")(i (3). 
 
 (!)) The bonds, giiarautce policies or other securities of every receiver umler this 
 Act are to he made lo t'.ie Insurance l!<'gislrar, and when ap))rnvc(l bv the .Master, 
 are to be transferred to the Insiiranie Hegisti'ar to be deposited and remain in the 
 .same custody as securities deimsitcd liy insmance companies iinder this Act. .5S V . 
 c. 34,s. ()(M). 
 
 (10) For till' purpose of holding the securities of rei.'civer, and all estate therein, 
 to the use of the unregi lered cor|)iiration, the lns\irance Hegistr.ir shall lie a cor- 
 poration sole, by the name of "Insurance Hegislrar for Ontario," and the said 
 Uegistrar as such corporation sole, shall have perpetual siu'cession, and may sue and 
 lie sued, may plead and be impleaded in any of Her .Majesty's Courts in this Pro- 
 vince. 5H V. c. 34, s. (!(14). 
 
 (11) All securities heretofcu'e made under this Act to any person or persons, other 
 than the Insurance Uegistrar and in force at the passing of this subsection, shall 
 forthwith bo assigned anil (ransferred to the Insurance Registrar, to be deposited 
 and remain in the same custody as ju'escribed by subsection !• of this section. .58 \'. 
 0. 34, s. (i (14). 
 
 IHO.- (1) The Master in and by the certillcate of tiling mentioned in subsection 
 (i of seel ion IHS, or by ('.'• parlr order or otherwise, m,iy appoiiil a iilace and a lime, 
 such time being not less than twenlyone days from the date of the certillcale or 
 order, at which time hi! will hear the applic.it ion of the interim receiver and will 
 conlirm the interim receiver in his ollice, or appnint another receiver, or malic such 
 other disposition of the matter as shall appear projier. .Vi V. c. 3!). s. ,"i."i (1). 
 
 (2» Public notice shall be given by the interim receiver of his application and of 
 the place and lime appninted by the Master for the hearing of the same; such notice 
 shall be published in I wo issues of Ihi: Ontario (lii::i'l/c, iuh\ once a week for two 
 weeks in a iievvsiiapcr published in the county where (he head ollice o>' chief ollice of 
 (he unregisteied corporation is situated, and a copy of the notice shall be delivered 
 
ONTARIO ENACTMENTS. 
 
 803 
 
 to .the Insurance Registrar at his oilice, at least ten (hiys before the day appointed 
 for the hearing of the application, and tlie notice shall he to the following eU'ect:— 
 
 hiluT 
 
 -iKill 
 ■ iiril 
 •.S V. 
 
 rt ion 
 I iiiit'. 
 \f 111' 
 will 
 such 
 
 lid of 
 
 |cil i('(> 
 
 ■ t wo 
 
 iCl' l)f 
 
 Icrcd 
 
 The Onliirio Insurance Act, is;c. 
 In the Iligli Court of Justice 
 
 In the matter of the {ntimimi the corporiitii)}i) an unregistered insurance 
 
 corporation. 
 
 Take Notick that C. O.. interim receiver of the said corporation, has filed in the 
 Master's otflce at an application to he conllrnied in his olHce (ot- 
 
 to he discharged of his otliccl as receiver, ami that the Master has appointed i/)lace, 
 tint/ and hour) for the hearing of the said application, at which place and time the 
 Master will make such disposition of tlic matter as shall appear proiier. 
 
 Dated at the C. I), 
 
 day of l.S . 
 
 .")3 V. c. ;fSt, s. iw (2». 
 
 f '*(>.— (I) If the iii'rsun or persons made interim receiver hv this Act or liy order 
 hcreuiidci', fail to cdinply with tlie provisions of s<>clion 1.S7 wilhiii ei;iht days after 
 hecdiniiig interim leceivei', tlieii the Insurance Kegistr.ir or any policy holder, or 
 certilicate holder, or any claimant or creditor may on motion, siippurted hy an atll- 
 davit declaring the facts, move the Master to issue his certilicate of default, and may 
 l;y the same or suiiseiiuent motion, move the Master to apjioint an interim receiver, 
 atnl to ajipoint a place and time for conliniiin.^- such interim receiver in his ollicc, or 
 i r disposing; of the mat ler otlierwi-c. and upon such motion or motions the Muster 
 niivy issue his certilicate of default, and may appoint an inteiim receiver aiul make 
 such further cirdcrs as seem necessarv or expedient for securing the property of the 
 corporation. .")."i \. e. :)!•, s. Til (1). 
 
 (:!) An iiitiM'im receiver appointed hy the .Master shall under the direction of the 
 Master, take immediate possession of the moneys and securities for moneys of the 
 corporation, ami shall ther.'afler perlorm all the duties re(pii.'ed of an interim 
 receiver hy this Act, and on default of iicrformance shall he liable to the i)enalties 
 imposed hy this .Vet. .").") V. c. It!), s. .")" Vl). 
 
 (It) t)n any noncompliance hy an interim receiver or hy any olllcer, agent or 
 employee of the corporation wilhaii\ provision of sections 1S7 and ISSoiwilh any 
 Older made, or summons ordlroclion issued hy the .Master under this .\cl, then 
 upon motion as enacted in sul)--.eclion I of this section, any of the persons therein 
 mentioned may niove tin' Master to issue his certitieate of the default, ami his 
 cert illcate shall ho coiudusive evidence of such ilefault for purposes of any proceedings 
 taken hy any of such persons, under sections W and ISS, or under suhsection .") of 
 this section, ."i.") V. e. :«), s. .")S It). 
 
 (I) .V motion to eommit such deriiultei- iii.iy on two clear days' notice he made 
 liefore a .ludiie of the High Court in Cham hers. .">.") V. c. ;t!), s. .")S (lii. 
 
 ("0 h'any jierson or persons madi' iiittrim receiver hy this Act or h\ oriler here- 
 under, receive from the Insuraiici- liegistiar notice under his lian<l and the seal of 
 his ollice directing such person or persons to comply with the provisions of section 
 IK7, or of section IHtt, and if the person or persons so uotilled shall not within ten 
 days after the notice delivered comply accordingly, such i)erHon or per.sons shall each 
 and every of them he guilty of an oU'eiiee, and upon Mimmary conviction thereof 
 hefore any f'olice .Magistrate or. Inst Ice of tlie Peace having lurisilict ion where the 
 olVence was commit tecl, he liahle to ii penally not exceeding .*i."il)n and costs and tnit 
 less than ••5101) and costs, and in default of payment the oHender shall he imprisoned 
 Willi or without hard lahoiii' for a term not exceeding three months and not less 
 than one month; and, on a second or any siihseipient conviction, he shall ho 
 imprisoned with hard lahour for a term not exceeding twelve muiilhs and not les.s 
 than three months. .Vi V. c. ItD, s. .")!)(h. 
 
:•(: ■ 1 
 
 804 
 
 INSURANCE LAW OF CANADA, 
 
 1^ 
 
 (d) All the provisions contained in sut)-s(.'ction.s :!, 1 and ti of section 85 slifill apply 
 cnually in tlie case of an ollence committed ni-der tlii.s section. 55 V. c. IJi), s. 59, (2). 
 
 (7) The provisions contained in section 74 .-.liall apply equally to evidence in .my 
 cause, matter, proceeding or trial, arising under or out of this section. .")5 V. c. '.VJ, 
 s. 55 (.S). 
 
 lOl.— (1) At the place and time appointed for hearinnthe application mentioned 
 in section ISH the Master may confirm the interim receiver in or dischartte him of liis 
 olHce, and may appoint ani'thcr person to be receiver, or with the consent in writinj^ 
 of the Insurance Uenistrar, may then or afterwards dispense with a receiver, and 
 generally, may nuike ihen or afterwards, such disposition of the mailer as will best 
 e.xpedite the beneficial realization of the assels, the discharge of the liabilities, ami 
 the distribution of Ihe surplus anions the persons entitled. Provided that, where 
 there is no receiver, the procedure shall, as nearly as may be, conform to the pro- 
 cedure herein prescribed for winding up with a receiver; and the assets shall be 
 realized and distributed by or under the direction of the Master amoiig the persons 
 entitled thereto, in the same way, as nearly as may be, as if the disiribulion were 
 beinf^ made by the receiver; a .ludne of the ilifih Court may n)ake an order directing 
 how the books, accounts and documents of Ihe corporation and of the receiver are 
 to be disposed of, and may order Ihat they be deposited in Court, or otherwise dealt 
 with as may he thought lit. I'rovided also Ihat in any case there shall not be more 
 than one receiver at any one time, except with the consent in writing of Ihe 
 In.surance Registrar. .")5 V. c. .'50, s. Hi) (1) ; .58 V. c. :!4, s. 7 (1). 
 
 ^2) The Master may appoint as receiver any trusts company approved by Ihe 
 Lieutenant-Governor in Council and accepted by the High Court as a trusts com- 
 pany. .55 y. c. Hit, s. .")(') (1). 
 
 (H) Subject to the provisions liereinafter contained, the Master shall decide upon 
 the security or securities to be given by the receiver, upon Ihc mode and amount of 
 his compensation ; shall 11 x Ihe limes for the submission and |iassingof his accounts ; 
 shall settle a<lverlisements deemed to be necessary ; shall determine what persons 
 are entitled to notice of any matter or proceeding, an<l the time, mode and form of 
 notice to be given; shall settle and determine h.sts of Uie debtors and the con- 
 tributories and tlie amounts which Ihey are resi)ectively liable to pny and contribute 
 to the assets of the estate ; and shall also set tie and ilet ermine the claims of creditors, 
 and the amounts to which they are respectively entitled, and all matters of sel-oll' 
 all'ecling or alleged to all'ect such lUbts. contribu; ions or cl.aims; sh.ill direct the 
 realization of assets, the discbarge of liahililii's and Ihe (list ribut ion of Ihe surplus; 
 and shall make such orders and issue sncli directions as shall best ellcctuali' Ihe 
 provisions of this .Vet ; and generally shall have all the powers which might be 
 exercised on any reference to him under a judgment or order of Ihe High Court. 
 Oniers and cerlilicates made by the Master under tliis Act, shall be appealable to a 
 .ludge of lh(! High Coui'l in like manner as othei* orders and certillcates of the 
 Master, and so far as not inconsistent with the provisions of this Ad, Ihe rules of 
 the Supreme Court of .ludicature shall apply to all proceedings under this .Act. 
 .55 V. e. ;i!», s. .51) cJ) (5) (lb; .58 V. c Ml. s. 7 Vl). 
 
 (I) In lixiug the receiver's reniuneratioM his eltiiieiu'v and expedil ion in u i riding 
 U|) shull be considered ; in no case shall the winditig up be prolonged beyond the 
 space of one year from the commencemenl. except for special and urgent cause 
 shown to the salisfai'tion of the Insurance Registrar, and when prolonged beyond 
 the saitl period for such cause so shown the Insurance Hegistrar by a consent in 
 writ ing shall limit a <lay for the llnal closing of the books and accounts ol the estale. 
 Whi'ii' ibe crediloi's arc subjected to deliiy or the estate to expense by any want of 
 care, diligence oi' cIlicicMcv in Ihe receivi r. Hic .Master or a .luilg.' in Chaud)ers on an 
 appeal from the .Masiir, on motion of Ihe lns\irance Ki'gislrar or of any creditor, 
 contributory or other pcrscui inlei'este.l in Ihe estate m;iv impose a line on the 
 receiver of not less than f-l) nor more than .?i!t)0 anil costs, which thereupon shall Ite 
 
'HI 
 
 ONTARIO ENACTMENTS. 
 
 805 
 
 ikIiiil; 
 il llu' 
 
 ■_\ 1111(1 
 'III ill 
 -tail', 
 ml iif 
 III! an 
 ilitor, 
 III the 
 :ill W 
 
 (leonu'd to be ;i fleht adjured ilue from tlic receiver to the estate, and execution may 
 issui^ fortliwitli or the amount may h<' ehai'^ed against any remuneration already 
 earned hy hut not yet paid to the reeeiver. 5JS V. c. 'M, s. 7 (2i. 
 
 (.")) Under the direction of the Master the reeeiver sliall as far as jiraetieahle, act 
 personally in all matters relatinf? to the estate, shall attend on eorrespondenee, give 
 notices, tile or copy ihjciiments, prei)are schedules, make calls on persons found or 
 aii.jiidired siihject tliereto, and shall personally perform such other duties and 
 services ill the receivership as shall from lime to time he proper and necessary in 
 the liiisiiiess of the receivership; jiud no costs shall lie paid or allowed for the per- 
 foriimice of duties or services which properly devoUe upon the receiver iiersoiially, 
 eitlur within tiic inleiit of this Act or hy vii'tue of any law or practice relating to 
 receivers in lorcc in t)ntarin. ."iS \', c. ;il, s. 7 (•>>. 
 
 l»i!.— (1» The advertisenienl for or notice to creditors or claimants shall he to 
 tlie eltect of the form in Schedule li. hereto. oS V. c. 'M, s. 7 C-i). 
 
 (2) Upon the (^viih'iice mentioned in sub-section 10 of section 71 of iliis Act, 
 (unless upon error shown to the satisfaction of the Master), and without tlie cre- 
 ditor or claimant liliiiir furl her or other proof or making any formal claim or giving 
 noliie, the receiver shall prepare each in duplicate the three several schedules next 
 liereiiiafler nicnt ioued with tlie amount for which or having relation to which each 
 creditor or claimant appears enlilU'il to rank on the assets. Upon the said several 
 amounts heing verilicd to the satisfaction of the Master, and in the absence of 
 coiiteslatioti by any person interested, or party, the creditor or claimaiil shall be 
 collocated and ranked accordingly. .")S \'. c. :U, s 7 i^i). 
 
 (■i) The lirst of the said three seheiiuici may be described as the Srhtiliile iif I're- 
 /Vrrril (^nulifiirK. This schedule sliall include the names, addresses and desiript ions 
 of the persons mentioned in subsection 7 of section lilli hereof, together with the 
 total amount to which, on the aforesaid evi<lcuce, (particular reference being made 
 to llie book and page, or as the case may bcl the said ))ersons .ire severally entitled, 
 together also with the .iniouut in respect of which they are seM'ially enli'led to 
 rank as preferred creditors. .'iS \'. e. lil, s. 7 (.t). 
 
 (Il The second (if the said sclieihiles UKiy be described as the Sr/ii'ihi/i- of 
 Oriliiiiir!/ CrK/i/iir-i. The schedule shall iuehuU' those preferred credilm ulio. in 
 resp ■el of .an unpreferreil ii sidiie, ,ire entitled to I'ank as ordinary credilor-^ ,iiid I lie 
 amount in eai h case of such residue; also all creditors entitled to claim iiiider 
 polii ii-s matured before the commencement of winding up, or under policies having 
 at that ihile a lixed surrender valiit>, or under policies iinmaluri'd at the comiin'iiei' 
 iiieiil (if the winding up. but secured by deposil under this .\ct, logcl her wit h the 
 following particulars in tlwMase of each policy, viz. : The number and (U'scriplion 
 of the policy, the dat'.' of issue land in the ease of any life insurance policy, llie airi' 
 of the assured at d.ste of is-.uei llie iiaiiic and address of the a-isurcd. and ol his 
 assignee, if any, the ainoiinl for \Uiicli the policy was issued and I lie value of the 
 policy or of the unearnerl pii'miums. a-^ I he case may he, taken as al I he cihomciici - 
 meiit of the winding up, and ill the c.ise of policies issued for .a ti'iin of years, the 
 date of the expiry of the term. The said second si hediile shall further inciiide 
 particulars of t he several obligal ions other than policies issued hy the corporation 
 and oulslanding at the eoniineucemenl of winding up, with the names of the 
 obligees aii'l payees, and I he \ aliie of the saiil obligations taken a> al I hat d.ile, and 
 .shall also include I he n.uiies and addresses, so far ii'- kuo"ii,of all other jmu'^oiis 
 eiilil led 111 rank upon tin' assets not being iiersons and claims falling uiiliin the 
 .scope of the lirsi and lliird of llnse schedule'-, ."iS \' . c. ;il, s. 7 (:i). 
 
 (.5) The said third schedule may be described as I he isclieiinle of !' mitdl unit a ml 
 I'nsiriireil I'd/irii.i, This schedule shall include all policies in force at the com 
 mencemeiil of winding up, but not falling wiihin the scope of the said second 
 schedule, and '-hall fiirnisli ih(> like particulars as therein metil ioued, except as lo 
 the value of the policy, and shall further show the <iggiei:;ale of the coiitrlbntiGiis 
 
til 
 
 806 
 
 INSURANCE LAW OF CANADA. 
 
 made liy the assured to (Ir- reserve or surplus fund, if any, of the corporation : and 
 in any distribution of any surplus assets the distriluuive share under any policy 
 shall he proportionatf to the said afigreKate of eontribution.s hy the assured, willi or 
 without interest thereon, as the ;\Iasler under the circumstances shall deem to he 
 .just; provided that when the rcKistry of the corporation was cancelled for insolvency 
 or impendinfj; insolvency, or where the Master is of opinion that the assets of the 
 estate are insutlicient or not more than sudicient to pay in full the claims eiil itled to 
 he ranked in the said (irsl and second schedules, the .Master may dispense with the 
 preparation of the said third schedule. .")S \'. c. :il, s. 7 (•!). 
 
 (•)) As soon as may he alter the comnieneenient of the winding up the receiver 
 shall prepare Scli'diilrs iif Itihhir.t ami Coiitrihu/orifx. The Sc/irdiilr of JMitors 
 shall show the names and addresses (so far as the addresses can he ascertained) of 
 all perHons actually indebted to the estate or ajiaiust whom the estate holds obliga- 
 tions or accounts accruing due with jiarticular.s of the same, aiul of the securities if 
 any held by the estate, reference being in every case made to the books, or other 
 evidentiary matter in the hands of the estate. Tlir Sr/irdiilf u/ Cuii/i'ilui/nrii's sliall 
 show the names and addresses (so fai' as the addresses can be ascertained) of all 
 members of the corporation and jiersons who ari! subject to call, or otherwise liable 
 to contribute to the assets of the esl.ite. and the extent of stiih liability, giving the 
 like reference to evidence. hX \'. c. HI. s. 7 C-U. 
 
 (7) The several schedules in this sub-sect ion meMtioned shall be prepared by the 
 receiver in triplicate ; oueof the trijilicates verilied by his oath shall be tiled in the 
 Master's oflice : another shall be delivered to the fnsuranee Registrar ; aiul the third 
 shall be kept in the receiver's ollice. and made accessible on demaiul to all persons 
 interestdl in the estate. r>S V. c. :il, s. 7 CO. 
 
 l»;l. (1) After the cxiiiiation of the time limited by the advc'rtisc ment for cre- 
 ditors or notice to claimants, the Master shall then proceed without delay to settle 
 and determine the list of creditors and the claims of alleged cre(lil(irs. and the 
 amounts to which those persons by him ad.juged to be creditors are respectively en- 
 titled: also to settle and determine the lists of deblors aiuI cont ribulnries and the 
 amounts they severally are liable to pay or contribute to the assets of the corpora- 
 tion ; also to settle and delerndne all matters of set-olVall'ecting or alleged to alTect 
 such claims against, or debts or J^ontrilmtiotis to the estate. The Master shall have 
 authority to disallow and excliule all claims of which notice was not given within 
 the time limited : and I liereafler he shall report directing a distri'ontion of the asset.s 
 among the persons entitled thereto, having reg.-inl on 1> to the chiims of which the 
 
 receiver had notice within the time limited : but it shall also In 
 
 Master to make an inli 
 
 npetetu for the 
 
 report or reports whenever deemed advisable : aiul. when 
 
 deemed necessary, to direct the iiayment of an interim dividend or interim divid- 
 ends. It shall not be neces.sary or advisable to procure an order for I he payment out 
 of court of any dividend declared by the Master's report, after the said report becomes 
 absolute or conllrnied by lajise of time or is allirmed on linal ai)peal as the case may 
 be. Such payment out shall be made by the .Vcconntant of the .Supreme t'onrt of 
 .Iiidicaliiri' up(in the prodnclioii of the report with a certilicate by the said .Master, 
 certifying the di te of the liliiig and that the said repoit has become absolute, or has 
 
 been alllrmed on linal ajipeal as the ci 
 
 'ly bi 
 
 r.s V. c. ;ii. 
 
 (3). 
 
 (2) Where, in tin 
 
 use of winding up a <'orporation under this Act, it appears 
 
 to the Master or to the Insuraiu'C liegislriir I hat any past or jiresent trustee, auditor, 
 direelor, nnmager, odicer, olllcial, receiver or liijuidator of the corporation has mis- 
 applied or retaiiu'd in his own haiulsor become liable or accountable for any money, 
 ,'issets, or properly of the corporal ion, or has been giilKy of ai.v misfeasance or breach 
 of trust or duty in rel.ition to the corporal inn, or whose conduct in the inanag<'mel\t 
 of the all'airs of the corpor.il ion has been siuh as in the ojiiidon of the Insurance 
 
 Uegislrar to rcipiire invest igation, tin' 
 
 Masl( 
 
 I he application of the Insurance 
 
 Uegistrar. iuid after at least ten days' notice servcil on (he person or on the se\eral 
 
mmutm 
 
 if 
 
 ONTARIO ENACTMENTS. 
 
 807 
 
 persons whoso conduct, or (k•illi^g^s are to be invesligfited. sliall, and is hereby au- 
 thorized and cniiiowerod, notvvithstanrliiif; that tlie oU'cncc is one for whioli the of- 
 fender is cJiniinally responsihje, to cxandiie intotlie conduct and dt'aiitiKs of tliesaid 
 person or persons, and report to tlie court liis conclusions upon the evidence ; and 
 wliere the Master by liis report linds as a fact tliat such default or misfeasance tias 
 been eonmutted, and ascertains the loss to the estate thereby, ascertains tlie person 
 or persons wlio committed the act or acts of default or misfeasance, or l)reach of 
 trust or duty, the Master by liis report may direct the said jieisoii or persons sever- 
 ally or Jointly, or jointly and severally to pay to lln' estate a certain smn or sums of 
 money with or without interest, and with costs, if any, occasioneil liy the (hd'aiill, 
 misfeasance or breach of trust or duly, or the ^Master may by his report disallnw any 
 account that such defaulter oi- misfeasant may have for his services or salary, and 
 tlie report of the Master when made shall b.' suli.iect to I he jirovisions of this Act as 
 to liliu};, contirmation and enforcement. M V. e. :!l, s. 7 t'U. 
 
 UM. ~(1) NVliere any report is made by the Master, he shall deliver out his report 
 to the receiver, and the receiver shall forthw ith lile the same in the Master's ollice, 
 or if the matter or iiroceeditifj; is in Toronto, or (lie county of York, then in the proper 
 ollice at Osjroode llali ; and tliereupon in tlie Diilnrio (l(i::tlli- anrl in a newspaper 
 issued at or nearest the place where the head ollii'e of the unreuislered corporation 
 is situate, the receiver shall ^;ive notice of the date nf fllinjj : the receiver shall also 
 forthwith deliver a copy of the report to the Insurance KcKisirar and noti<e of the 
 (hiy of lilinji : the receixcr shiill also keeii in his own otlke a copy of the report en- 
 dorsed with the date of liliiiLr, and make the same accessible on deiiiaiid to all persdiis 
 interested in the estate. ."iS V. c. 31, s. 7 (iti. 
 
 (2) Tpon any report of the Master (or tin? said report as amended on appeal, if 
 liny) liecominn- absolute under the rules of tlie Court, every per.son ascertained by 
 the report to be indebted in a specille<l sum to the estate of the corporation shall //wo 
 I'avht and witlioul further proeeediiiKs, and , is after final .judiiment be deemed and 
 be debtor to estate in the sum specilied. and thereafter tlie Master may under his 
 hand certify that by his report dated and Hied in on 
 
 the day nf IS isiip/i/i/iiii/ Ihr nrntisunj /iiirh'.cii/i(i:s) tVie 
 
 person nr jiersons named in the certilicale has or have been found iiuh'bled to the 
 estate of the unreuistered corporation (iiamiiiji' it) in the sum of .*! w ith 
 
 $ interest (if any) and 8 costs (if any). .iS \'. c. :t|, s. 7 CD. 
 
 A fee of J.5 cents sluill be paya'ile to a Local Master in respect of each certiticate 
 under this sulisection. 
 
 (M) Tlie receiver or t lie Insuran ■(■ Kenisi rar ihei'eiipon by prei'ipe or I'eipiisition 
 ilirected to the clerk of any Division Court or County Court, or lo the proper regis- 
 trar or his de|inty in tlie llijih Courl, may iei|uire the said certificate to be entered 
 as a Judgment of the Court, ami thereupon it shall be entered accordingly, and 
 thereafter the receiver oi' the Insurance I!".uistrai' may take any proi-eedings or 
 process for the enforcing , •mil colleetiuj,- Judgment that enuld lie had or taken lor the 
 like purpose upon any Judgment of the said ("Jourt. 
 
 (4) Wlii'ii the .Master finds that (•ertaiii eontrilmtories or other persons liable to 
 |)ay to the estiite any sum of money, da iiages or costs. resi(h' w ithin the county or 
 bailiwick of jiny sherill'. he nriy direct one writ of execution to issue, eomiii.indiiig 
 the sheiifl' to execute the said writ against ilie goo Is and chattels or lands and 
 tenements of each of the p "rsoiis named Ihertdn in respect of the sum of money, 
 damages or costs specilied as payable by each of the said persons resjiectivcly, and 
 Ihereupoii the slierill' shall proceed to execute the said writ of execntJon as he 
 would if separate writs of e.xeculioii for the sum of money, damages or costs lias 
 been issued .igainsl each of the said persons respectively. 5S \'., c. :{|, s. 7 i'-U. 
 
 (5) Any imrchase of assets of the nnregislereil or liipiidating corporation, or of 
 ■any member's right to rank on the assets, or of a member's di\i lend by any person 
 (lirecling, managing, auditing, or employed by tlie corporation within three yeai> 
 
808 
 
 INSURANCE LAW OF CANADA. 
 
 iifxt. before reeeiversliij) nr li(|ni(i!itioii, or any sneli imrcliu'ie liy any reeeiver, or 
 lii|ui(l,ttor or inspcetor of llie estiile is licrehy ahsolulely proliibited, and any pre- 
 tended i)urelia.se or assii;nnienl sneli as afoicsaid shall l)e utterly void. Tliis s\il)- 
 section sliall apply also to uny windinj; up of an insiiranee corporati(ni under- chap- 
 ter is:i of llie Hevised .Statutes of Ontario, l.-i.S7. or under any othei' Act of tlie Pro- 
 vince. 
 
 |}>.~«.— (1) 'I'lie hooUs. lin.mcial statements, sche<lules, ae<'0unts and voncliers of 
 ev('r,\ reeeiver under this Act sliall be accessible to llie Insurance Ue.«istrar, or to 
 liny person authorized under liis liand and seal, as enacti'd liy section SJ, and if any 
 receiver refuses or neKl<'t'ts to ad'ord sueli acci'ss, or if he mal<es a wilfully false 
 statement or untrue entry, he sliall be guillj' of an oirence as ajtainst sub-section 
 (i of seition S:i, all the provisions of which sub-section shall eipially ajiply in the case 
 of an ollenci' (•ominilted a).rainst this sub-sect ion. X> V. c. Mil. s. ."id i7) ; ."iS V. c. 151. s. 
 Till. 
 
 (lit I'nless an<l until otherwise ordered by tlie court, the receiver sliall forth- 
 with deposit ill the bank jnescribed by sub sect ion '.i of section Is7, to the credit of 
 the unre^tistered insurance corporation all moneys by him from time to time re- 
 ceived, and, ten (lays before the <lay appointeil for the passing- or taxation of any 
 account, or bill of costs, he shall deliver a eertilied copy of the account, or bill of 
 costs to the Insurance Ueijistrar at his oflice and obt.-iin his receipt therefor ; and 
 within live days after the passin;^ or taxation of any account or bill of costs, the 
 reeeiver shall in like manner deliver to the Insuranci' Ucnist rar it cert ilied copy of 
 the account of bill of costs as jiassed or taxed. A duiili(-ate of the account or bill of 
 costs to be passed or taxed shall by tin- pisrson renderin.^^ the same be supplied with- 
 out charn'c to the receiver to be by him certified and delivered to the liisnrance 
 Hojrislrar. ."m \'. e. :«•. s. nii (S) ; ."iS V. c. 'M. s. 7 (5). 
 
 i:it III case of default by any receiver in le.-ivin;.; or passing .-uiy a(-counl. or in 
 niakiiiji any deposit or payment, or of laches or iieuliiience in performinu; any other 
 (buy ilevolviiiK upon the receiver by virtue of his ollice under this .\et. or of an 
 ordei- or dire<-lioii of the courl, the Master eil licr without motion, or on motion by 
 the lnsni-aiic<' Ke^islrar or any person iiiteiestcd, may deal with the reeeiver as 
 provided in Consolidated Hole \S\, or may remove the receiver and appoint 
 another, or make such other (U-der as shall best ell'eetuale the purposes of this Act. 
 ."> V. c. :«», s, .")() (!b. 
 
 il) Where any insurance corporation, company, society or assoeitUion is beinf? 
 \\oinid up either under lhis.\ct,or under clia|)tei- ISl of the He'.iscd Statutes of 
 Ontario, ISS7. or other Act of the l'ro\ iiicc. the Iiisuranci> Heiiistrar shall be a com- 
 petent party for commcncinu; or prosecut iiiu; any action, matter or proi'cedinjr rela- 
 tive lo the estate of the coi-poration, or to a recei\cr or liiiuidator thereof, or to the 
 sureties of or securities ,!j,i\-en by eil her ; and to every such action, matter or pro- 
 ceeding otherwise taken, comiiHMiced or prosecuted and to every taxat ion, retaxa- 
 t ion, review or revision of costs allectinj:; ihi' estate. Die Insurance Hesistrar shall 
 be a comjietent and necessary party, .'iS \'. c. Ill, s. 7 l(ii. 
 
 (.")) Vacations in the HiRli Court shall not .-qiply to proceedings under sections 
 ISI to liMi of this .\cl ; and any proceed inj^s. reports or apjieals under the said set-tions 
 niav be broiiLclit, made and c.irried on in such vacations. 
 
 COSTS -. I'UtnlintDS. 
 
 U>0. (1) Kxcept by consent in writinii- of the Insurance Hejristiar no counsel or 
 soili ilor shall be emiiloyed to act for the receiver or ol hers at the expense of the 
 unregistered corporation or of its funds or estate, .")S V. c. 'M, s. S. 
 
 |2> A minute entered on the Master's book shall hav(> the same force as a fornuil 
 order or direction ; and except in special cases, no costs shall be allowed for at tend- 
 ing on or lakiiifront a formal order <ir direction. A copy of any minute eertilied 
 
ONTARIO ENACTMENTS. 
 
 809 
 
 uiidor tlio hiimi of tlic Master sliiill lie cDmpi'toiil evidence tliereif, and for everj 
 xiK'li cert iliciili' ii fee of 'M cent s sliiill tie p.iyalile. "iS V. e. :il, s. 7 (.'!). 
 
 (Hi 'riie Li)C!il Master or otlier local ollicer after taxinj^ any l>ill of c;ostH payalile 
 wholly or in part out of the estate shall forthwith tran.-init the same for revision to 
 the proper taxinji ollicer at Toronto, as directed by the Consolidated l{ules of \'i-nc- 
 tice in the case of bills of costs in actions where the amount is to t)e paid out of a 
 fund in court, all of which said r\ilcs shall, whore not inconsistent with this Act, 
 e(|ually apply tf, the costs of all mailers and pi'ocecdinirs in any receivership, li(iuida- 
 tioM, (M' wlndinu; up miller this Act as to the costs in actions or proceedini;s where 
 the amount is to be paid out of a fund in court. "iS \'. c. 'M, s. S. 
 
 (4) The costs of any matter or proceeding in the .Master's olticc under this Act 
 shall be on the t'ounty (.'ourt scale. 
 
 (.">) The taxeil costs of any action, matter or jiroceedinfr taken by the Insurance 
 Ucijist rar, or by tlie receiver with the written consent of the Insurance Het;istrar. 
 shall be paid out of the funds or estate of the corporation ; but, except with the said 
 consent, no costs shall \k' allowed out of the estate tor sejiarate, or other repre- 
 sentation of members or certilicale liolder-; of the corporal ion of any class of mem- 
 bers or certilicate holders; the costs of all other actions, matters or proceedinj;s, 
 shall be in the discretion of ihe Court, ("f. ."iS \'. c. :!l. s. S. 
 
 (ti> .\ll costs charjjled and exiienses projierly incurred in the iccciveiship and 
 winding; u)) of the corporation, includin.'j tlie remuneration of thi" receiver, shall Ik- 
 payaVilc out of the assets of the corporation in iiriorily to all other claims. ."iS \'. c, 
 :M,"s. S. 
 
 (7) Subject to the fore^oinf; provisions, the .Master in dislribulinn Ihe assets of 
 the corporal ion under this Act, shall ii.iy in priority to the cl.iims of the ordinary 
 or Kcneriil creililoi's, the salary or wa^es of all clerks and waije eainers in the em- 
 ployment of the corporation due at the date when the corpoial ion became un- 
 re,u;istered or within one month before, not exceeciinir three months' salary or 
 wages, and such persons shall be entitled to rank as ordinary or !.;eneral creditors 
 tor tlie residue of their claims. ."iS V, e. :{|, s. .s|. 
 
 
 [■■i:i:s. 
 
 U>7. — The fees by this section prescribed shall be payable to the I'lovincial 
 Tieasurer of Ontario, who shall cause to be delivered to the jierson niakini; the pay- 
 ment a receipt in duplicate therefor, "m Vic. c. liil, s. (i:^. 
 
 In the case of an application or other document or inslrument to be filed, 
 examined or deposited, Ihe fees shall be |iaid and the duplicate oT I hr I'r'ovincial 
 Treasury receipl Iheiel'or shall be delivered to the Insurance IJenisirar before the 
 aplillc.ition. or other document or inslrument is considered; in 1 he case of rejiiistry 
 oi- certilicates of rey;islry the fee shall be payable lu'lorc the ciiriinr.-il inn is 
 re)^istered. 
 
 The fees for incorporation of Joint stock companies under lliisAci shall be as 
 prescrilied by Ihe Lieutenant (iovernor-inCouncil liy order made in thai behalf. 
 
 l>lrlsii)ii 1. -Insiiril ace CiDiipdii ics l/innsid In/ llir I'riiil iii'i . 
 
 I. I'or recording; and lilinjj the docuinents reiiuircd by sections H, 17 . , "^ Pi (K) 
 
 •_'. I'or Ulinjj; power of attorney undei' sect ions titi, il7 . . . • •"> •"' 
 
 Apiilication for change of name or of head ollice Hi (»• 
 
 ;i. I''or initial license to do business : 
 
 .loint .Stock Company I'M' 'Hi 
 
 Cash Mutual (\impany 5(1 I Kt 
 
 Mutual -^'^ nil 
 
 4. For each annual renewal of license : 
 
 .loint Slock Company ."ilMM) 
 
 Cash Mutual Company i") tK) 
 
 Mutual 5iK) 
 
li,a, 
 
 810 
 
 INSURANCE LAW OF CANADA. 
 
 f). For each suppleinentixry license : 
 
 Initial 20 00 
 
 Kc'iiewal 10 00 
 
 (i. For (iliiij4 iiimuiil sliiteiiients : 
 
 .loiiit Slocl< Compiiuy Ti (M( 
 
 Casli Mutvml C'oiiipiiny 5 0() 
 
 ]{. y. O. IS,'", c. 1()7, s. (Y.i. 
 
 IHvixitin 1 1 .^Corimrations Constilitted by tliv /'rorinre. 
 
 1. IniiMuucli as insurance corporal ioiiM licensed by the Province are under the 
 provisions of this Act rei|uircd to pay annually to the Province license fees aiitl an 
 assessment, the said corporations shall without application and without additional 
 charge he entitled to he registered under this Act. 55 Vic. c. .'<!> s. (!:i (1). 
 
 V2) In the case of Ontario corporations rejiistered or applyitig for registry on the 
 Friendly Society Ue.nister, the fees shall he as follows : - 
 
 A.— t'oriKjratiims or incorporated hranches having in Ontario 5t)() nienihers or 
 less : 
 
 ((() Application for initial registry ,*:^ 2(H) 
 
 {,!)) Kxtension of time for niaUing application or deli\erinj.' docu- 
 ments 1 (K) 
 
 (c) Certificate of registry, original orrenewed li (Ki 
 
 {d) Interim cert ilicates or extension of certificates 2 00 
 
 (f) Uevivor of registry after suspension 2 00 
 
 (/) Change of name or of head ollice 4 00 
 
 .V) \'. c. :iSl, s. 02 ; 57 V. c. 18, s. 2 (:)>, 
 1!. --Corporations or incorporated hranches having in Ontario over olK) and not 
 moie than I.oOli nienil)ers : 
 
 u/» Ap|)licat ion for initial registry § H 1)0 
 
 (It) Extension of time for making application or delivering docu- 
 ments 2 (H) 
 
 (c) Certilicale of registry, original or renewed 10 00 
 
 ((/) Interim cerlilicate, or extension of certificate HO!) 
 
 If) Revivor of registry after suspension 03 
 
 (/) Change of name or of head ollice (i 00 
 
 C— Cori)orat ions or incorp(U'ated hranches having in Ontario over 1,500 and not 
 more than 2,5!H) members : 
 
 (a) Application for initial registry § 4 (K) 
 
 (6) Extension of time for making application or delivering docu- 
 ments 2 00 
 
 (c) Certificate of registry, original or renewed 15 (M) 
 
 id) Interim certificate, or extension of certificate 4 00 
 
 ((') Revivor of registry after suspension 8 00 
 
 (/) Change of name or of head ofiice 8 CO 
 
 D.~Corporalions 01' incori)orated branches having in Ontario more than 2,500 
 memhei's : 
 
 ill) Application for init ial registry S> S 00 
 
 (/)) Kxtension of tinte for making application or delivering docu- 
 ments 2 00 
 
 (c( Certi licat e of regist ry, original or renewed 25 01) 
 
 (rf) Interim certificate or extension of certificate 5 00 
 
 ie) Koviviir of registry after suspension 10 00 
 
 (/) Change of name or of head ofiice 10 tK) 
 
 55 V. c. 39, s. 02. 
 
] 
 
 ONTARIO ENACTMENTS. 
 
 811 
 
 Dirisiini TIT. — C'or/iornlion.t di'r'niiKj f/iiir /loirrr.ifrinii an Act of Canada ar from 
 a thiruininl of (luthorizdtion issued uniltr Ihr InsiirunfC Act of Canadn. 
 
 1. Ill the fiisc (if corporations derivinf? tlieir powers from a license or tlocuiiient 
 of aiilluirizatioii issiuHl ninXav Tlic Tiisiininri' Ac/ i>( C'luiada. t'xcepl corponitions 
 iiuludi'd ill section ;tS tlicrcof, tlie fees sliali W as follows : — 
 
 (a) Appliciitioii for initial legist ry S Ti (Kl 
 
 (/(I Kxlension of time lor iiialfinK aiiplication or delivering docu- 
 ments i; (to 
 
 ((■) Filing: power of attorney In case of extra-I'rovincial corporations. 5 (Kl 
 
 (rf) FiliiiL; cliani:;e of power of attorney 5 00 
 
 ((■) (.'ertilicate of registry, orifj;iiial or renew eil ITiO (K) 
 
 (/■) Interim cert i Meal e of reyistry, or extension of eertilicate Ti 00 
 
 (f/) Revivor of rejjistry after suspension i") <M) 
 
 2. Ii\ tlie case of corpnrations enipoweivd under section 3H of T/ic Insuranic Art 
 of Canada, tlu' fees shall lie as follows : — 
 
 ia) Application for initial registry S ,") 0(1 
 
 (/() Kxt elision of time for makiii)j: application or deli verlni; documents -J 00 
 (cl l''illiijj; power of at torney in case of extra provincial corporations. ."> 00 
 
 ('/) I''iliii;j eliaiif^e of power of attorney T) (Kl 
 
 0) ('ertilicate of registry, original or renewed 100 00 
 
 (,/'( Interim eertilicate of registry, or extension of eertilicate n 00 
 
 {</) Revivor of regisi ry after suspension \H) W 
 
 '■>. In the case of corporations, companies, insurers or underwriters undertaking 
 or transacting ocean marine insurance only. ,ind also incase of corporations, com- 
 panies, insurers and underwriters within the intent of seel ion H («) or section ;i2 of 
 'J'/ie Tyisiirancr Act of Canada found admissilile to registry under this Act, the fee 
 for eertilicate of registry, whether original or renewed, shall he §10.00. 'n V. e. !W, 
 s. (52; .W V. c. .S2, s. 10(16). 
 
 4. In the case of corporations mentioned in suh sections 2. 1 and o of section (Kt 
 of this Act, the fees shall he as in suljsection 2 A of Divi.tlnn II . of this section. 
 
 5. In the case of the ecrporations mentioned in suh-sectlon :i of section (ill of this 
 Act, the fees shall he as follows : — 
 
 (ft) Apiilication for init i:il registry !? 2 (Kl 
 
 di) lv\t elision of lime for making aiiplication or delivering document b I (HI 
 
 (c) I'Mliiig power of attorney in extra-provincial corporations 2 00 
 
 {d) Filing change of power of attorney 2 00 
 
 (f') Certificate of registry, original or renewed !< 00 
 
 (/) Interim eertilicate of registry, or extension of certificate 2 (X) 
 
 (J/) Revivor of registry after suspension H 00 
 
 iw V. c. :!!!, s. ()2 ; I5.S V. c. :U, s. !>. 
 
 IV.—Friendli/ Societies not included in either of tlie forcijoing Divisions. 
 
 In the case of extra-Provincial friendly societies, the fees shall he in respect of 
 powers of attorney as enacted in suhdivision 1 Division ///. and in other respects 
 shall he as in suhdivision 2 I) of Division II. of this section. ."> \ . c. ;W, s. ()2. \*'i V. 
 c. ;i2, s. U) (Hi). 
 
 Provided, that wlien the fee for any term of registry under any division of this 
 section exceeds .^10, the fee payahle for a eertilicate covering a period of six montliK 
 or undershall he one-half of the fee payahle for the full term. ."iS V, c. :it, s. !l. 
 
 Division V .—Miscellaneous. 
 
 Oniee copv of decision of Insurance Registrar .SI (K) 
 
 (Jertilicd cojiy of eertilicate of registry 1 <X) 
 
 Certilled copy of entry on register •"id 
 
 Copies of or extracts from documents tiled with or issued hy 
 
 the Insurance Registrar per folio of 100 w ords 10 
 
# 
 
 
 IMAGE EVALUATION 
 TEST TARGET (MT-3) 
 
 v 
 
 m 
 
 A 
 
 O 
 
 
 -*V*4?. 
 
 \o 
 
 y. 
 
 
 5^ 
 
 1.0 
 
 I.I 
 
 ilil.25 
 
 ." 512 |||,|2 2 
 
 U IIIIII.6 
 
 Photographic 
 
 Sciences 
 Corporation 
 
 23 WEST MAIN STREET 
 
 WEBSTER, NY. 14580 
 
 (716) 872-4503 
 

 t/i 
 
 •f^'-* 
 
\-i 
 
 812 
 
 INSURANCE LAW OF CANADA. 
 
 Ccrtiflcate of exemption from rejiistry, SSl.tHt; llliug of certificate of incorpora- 
 tion or any utlier separate dociiinent re(|uire(l liy tills Act to lie tiled In the ottice of 
 tlie Provincial Registrar, ^M. 55 V. c. :«», s. tii; M V. c. :«, s. I()(l«). 
 
 lOH.— (1) Tlie several Acts and parts of Acts spccilied in Schedule C" to this Act 
 are hereliy repealed. 
 
 (2) All Acts or parts of Acts inconsistent \s ith tills Act are liereby repealed. 
 
 (3) Subsection 17 of section Hi of chapter 1(17 of the IJevised Statutes of Ontario, 
 1H87, shall, notwithstandiii>j; anything herein contained, apply to contracts of Insur- 
 ance In force at the pa>siii>^ of this Act. 
 
 (1) Section i of -haptcr 157 of the Uevined Statutes of Ontario is hereby amended 
 by strikiiiR out In Hth and UtIi lines the followliif^ words: "And the liusiiiess of 
 insurance, other than as provided by section 4 of The Ontarin Iiisuraiirr Act." 
 
 MHEinilAi A. 
 
 (Nif, ,• I In III Si'riiiiii nil ('!).) 
 
 ?.'*'^^ 
 
 Nut level J'reii'.;. 
 
 rail life i.isurance of :#1,(HK). 
 
 P 
 
 IS 
 19 
 2() 
 21 
 22 
 2!^ 
 24 
 25 
 2(1 
 27 
 28 
 21) 
 iMi 
 
 ai 
 
 82 
 
 H 
 
 86 
 
 86 
 
 37 
 
 88 
 
 80 
 
 40 
 
 41 
 
 42 I 
 
 48 
 
 44 
 
 to 
 
 1(1 
 
 47 
 48 
 40 
 50 
 ol 
 fi2 
 
 54 
 
 r.5 
 
 Vearlv, 
 ii' advance. 
 
 !:!i 
 il X{\ 
 10.2(1 
 II).. 'in 
 l().!)l 
 II 2S 
 11. (HI 
 12.0:1 
 12.42 
 12.7(1 
 1:1.12 
 1:1 41) 
 i:i,«7 
 14 :<l 
 14.7(1 
 15.22 
 15.7:1 
 10. 25 
 1(1. S2 
 17 42 
 IK (15 
 \f<.-\ 
 1!» 12 
 2(1. l.H 
 20.!)7 
 21 SI 
 2*.7(» 
 2:1.(15 
 21 (i(i 
 
 27.:tl 
 2.S III 
 2!l.:t(! 
 :«) 72 
 
 ;t2.i7 
 :ki.71 
 :i5.;ii 
 : 15.(17 
 .la.iM 
 
 Kaifvefiiiy, 
 in ailvu; w. 
 
 5 (K) 
 5. l,S 
 5.:i(> 
 5.5:5 
 5.71 
 5.. Si) 
 (I 117 
 11.25 
 (i.4:l 
 (t.lH) 
 (1.7S 
 7.02 
 7.20 
 
 7 41 
 
 7. OS 
 7.01 
 S.21 
 S.51 
 S.Hl 
 11.10 
 
 Id 
 S2 
 10.17 
 
 10 .VI 
 
 11 111 
 1 1 IS 
 
 11 1)0 
 
 12 41 
 12.1)7 
 1:1. 81) 
 11.10 
 II .S2 
 !.■ 
 
 1:1 
 III 24 
 17.02 
 17 f*n 
 18.75 
 10. IM 
 
 IJuarlcrly, 
 In advance. 
 
 « 
 
 2.51 
 2.00 
 2.U0 
 2 78 
 2,87 
 2.06 
 8.05 
 8.14 
 8.28 
 8.82 
 3.41 
 8.68 
 3.02 
 8.74 
 8.80 
 3.08 
 
 4.i:i 
 4.28 
 4 48 
 4.57 
 4.73 
 4.08 
 6.11 
 6,32 
 6.68 
 677 
 0.01 
 (I 26 
 0.52 
 
 o.m 
 
 7,12 
 7.46 
 7.80 
 8 10 
 8.66 
 8.07 
 l).42 
 0.87 
 
 Monthly, 
 ill advance. 
 
 .SI 
 87 
 .!HI 
 
 <i;t 
 
 .!H) 
 
 .!H) 
 
 I .02 
 
 1.05 
 
 1.08 
 
 II 
 
 II 
 
 IS 
 
 1 
 1 
 I 
 
 1 21 
 I 25 
 1.21) 
 
 I :w 
 
 1:58 
 1 1:1 
 lis 
 1..-.:; 
 I .v.i 
 1 li.-) 
 I 71 
 
 1 !):i 
 2.01 
 
 2 0!) 
 2.1s 
 2 :i2 
 2 :is 
 
 2 41) 
 2.01 
 
 2.7;t 
 
 2 Wl 
 :i (Ki 
 
 ;).:m) 
 
 
ONTARIO ENACTMENTS. 
 
 813 
 
 SCHEDULE P. 
 
 Referred to in Section /W (/). 
 
 Ontario Insukanie Act, 1S97. 
 
 an unregistered insurance 
 
 In the High Conrt of Justice, 
 
 In the mutter of 
 corporiition. 
 
 Pui-suunt to the .judgment and direction of the Insurance Registrar herein, dated 
 the day of , li^ , revoking and cancelling tlie registration of 
 
 the aboved named corporation (or as the case uuiy tte). 
 
 The creditors and persons (otiiers than holders of unmatured policies or certificates 
 of the corporation) having claims against the said corporation arc, on or before the 
 day of , IH , to deliver or send by post, prepaid, to 
 
 , of , the ricceivcr of tlie al)ove 
 
 mentioned corporation, an aflldavit showing their christian names and surnames, 
 addresses and descriptions, the full particulars of their claims, a statement of their 
 accounts and the nature of the security, if any, held by them ; or, in default thereof, 
 they will be peremptorily excluded from the iHMiellt of the said Judgment and direc- 
 tion, and from all share in the assets of the estate; and the said creditors and 
 claimants, if so re(|uired by notice in writing from the said Receiver, are to come in 
 and prove their debts and claims and produce their securities, if any, before me at 
 my chambers at , on the day of 
 
 IH , at o'clock in the noon, l>eing the time appointed for 
 
 liearing and adjudicating upon debts and claims ; or, in default thereof, they will be 
 excluded from the benclit of any distrilmtlon of assets. 
 
 The status and rights of persons interested under unmatured policies of the 
 corporation shall, in the absence of contestation and without any clu'm made, be 
 determined by the books and records of the corporation, or of its ollicers ; a schedule 
 showing the said status and rights may be seen in the oltlce of the Receiver at the 
 above address. 
 
 Notices and letters respecting the estate or any alleged right or interest therein, 
 are to be addressed to the l{eceiver as above, and all letlcrs rei|uiring answer arc to 
 enclose a stamped and addressed envelope for reply. 
 
 Dated this day of , 18 . 
 
 Master. 
 
 58 V. c. 34, Schedule. 
 
:M: 
 
 814 
 
 INSURANCE LAW OF CANADA. 
 
 ! 1 
 
 
 SCHKDULE C. 
 
 Referred to in Section lOS, 
 
 Acts and Pakt.s ok Acts Ukpkai.kd. 
 
 Year and Chapter. 
 
 ISH- 
 
 K. & 0. 
 
 c. 
 
 lUfi. 
 
 18H7 U. S. 
 1H8S .-)! V. 
 
 (). 
 
 c. 
 25 
 
 1(17. 
 
 18S« 
 
 .il V. 
 
 c. 
 
 22 
 
 
 18S!I 
 
 52 V. 
 
 e. 
 
 :<o 
 
 
 Title or Short Title. 
 
 Kxtent 
 of repeal. 
 
 IRS1)52 V. c. 31. 
 lSSil.-)2 V. c. :I2. 
 lHOO."i.S V. c. :«». 
 1890 5H V. c. 44 
 
 1S!)1 54 V. 
 1H!»2 55 V. 
 lSi):t 5() V. 
 I8!)4 57 V. 
 1,S!»5 5S V. 
 
 c. 37. 
 
 c. ;«». 
 
 e. :i2. 
 c. 4S. 
 
 lS!Kt.->D V. c. 45. 
 
 An Act to secure to wivcH mid children the benefit ol 
 Life Insurance 
 
 The Ontario Insurance Act 
 
 An Act to amend the Act respectnig Insurance Con> 
 pimies 
 
 An Act to amend the Act to secure to wives and cliil 
 dren the henetit of Life Insurance 
 
 An Act to amend the Act respecting Insurance Con 
 
 j panics 
 
 .'An Act to amend Tlie Ontario Insurance Act 
 
 .'An Act respecting Contracts of Life Insurance 
 
 .lAn Act resj>ecting Contracts of Life Insurance. . . 
 
 . JAn Act to amend The Ontario Insurance Act 
 
 . |An Act to amend The Onlin-io Insurance Act 
 
 .The Insurance Corporal Ions .Vet, 1S!(2 
 
 An Act respecting t lie Insurance Law 
 
 .jAii Act respecting Hcnetlt Societies 
 
 .An Act respecting the Insurance Law 
 
 .lAn Act relating li> the law ol Insurance 
 
 ,The 
 
 whole 
 
 ll'he 
 
 whole 
 
 1 
 The 
 
 whole 
 
 The 
 
 whole 
 
 n.e 
 
 whole 
 
 •;iie 
 
 whole 
 
 riie 
 
 whole 
 
 The 
 
 whole 
 
 The 
 
 whole 
 
 i'l'he 
 
 whole 
 
 The 
 
 whole 
 
 :The 
 
 whole 
 
 The 
 
 whole 
 
 The 
 
 whole 
 
 jThe 
 
 whole 
 
 Since this work ha« been put in pross.ofTcrts have been miide by represitntiitivvs of the " Mutual 
 Fire riulerwriters' Afsociutiiiii of Ontario," to jiniond tlio Fn-iiirinico Act. Tlii-.v ilciiire intii- nlia 
 tliiit rcKiatMtiun under oath ul' all lire lo.<'.>09 be made ouinpulsory on munic'pnlitiu.'i, Kivinir pariicu- 
 lurs relatiuK to the insurances and losFe.«, rvtnrn.s for which should be uiado to llie "Ontario 
 Bureau of iStatlslios," for pul>l<calion ; and they also wish that the trial jud((L' Hhoulil ilispc.sc of all 
 questions of ma Itrialily under any in.-uriince contract, anil that these ijuc^tion." i.e n'>t left to the 
 .iury. 
 
 m 
 
:N0VA SCOTIA ENACTMENTS. 
 
 In Nova Scotiii under the Revised Statutes, (1884) cap. 78, sec. A), provision Is 
 made for annual returns of insurance companies to the Provincial Secretary. And 
 under ID Vic, cap. 57(\.S.), tlie formation of Mutual Fire Insurance Companies is 
 provided for. 
 
 NEW BRUNSWICK ENACTMP^NTS. 
 
 w^ 
 
 } 
 
 tho 
 
 55 Vic, Cap. 4. 
 
 All Act to imjiiise vertiiin 7V»,»r,s on certain iiicorjionitcil Coin/iiiiiiia mid Asaociii- 
 
 on 8. 
 
 (As amended tiii •*>' Vic, cap. ll,{X.Ii.) and hi/ W \'ic., ciI)k 
 
 Vic, cap. .:.'), (A'./y.) 
 
 {\. 1 1.) and 1)1/ Ml 
 
 1. In order to provide for the exigencies of llu" i)ublic hcrvice, tlu'ro shall he and 
 are hereby imposed upon the companies and ussociiilions hereiuiifter tiienlioned the 
 taxes hereinafter specillcally named, which taxes each of such incorporated com- 
 panies and associations respectively, sliall annually pay to the Itoccivcr (iencral for 
 the use of the province, 
 
 (2) Upon all companies accepting risks and carrying; on the husliicss of insurance 
 anainst lire, one per centum of the net premiums received hy each, lonethcr with an 
 addilioiwil sum of one hundred dollars to he paid liy each of the said companies 
 whose principal olllce t)r ornani/at ion is not within the province. (The words "net 
 premiums" in this sul>-sectioii are hereby declared to mean the ifi-oss premiums 
 received by each of tlic said companies upon its business within the pioviiice for the 
 year precedInK the llrst day of May of the year in which the lax is paid, less any 
 amount paiil for reinsurance within this province or upon the cancellation of any of 
 Its policies.) 
 
 (It) Upon all insurance companies and associations of .my kind having agencies 
 or accepMnu risks \ipon the lives of persons within the province, and transacting the 
 business of life or endowment Insurance therein as the sole object of their orKani/a- 
 tloii or as Incidental to other purposes of their orpiiil/at ion, whose principal ollice 
 and orpini/ation is not witliin the province, the sum of two hundred and lifly dol- 
 lars; ami of all similar companies or associations whose princi|ial ollice and or^an- 
 ixatlou is within Mie province, the sum of one hundred dollars. 
 
 (1) Upon all companies doin^ the business of accident and guarantee insurance 
 within the province the sum of twenty-live dollars ; and an additional sum of one 
 
 
 Mi 
 
 1 
 
 m 
 
 \}. 
 
 
 i 
 
 
 * 
 
 
 .^itL 
 
 kJm 
 

 
 816 
 
 INSURANCE LAW OF CANADA. 
 
 half of one per centum upon the premiums of insurance annually received liy each 
 company iu respect of its insurance in this province. 
 
 • « • » » 
 
 *2. Such taxes, as far as respects the corporations or associations mentioned in 
 su)>-8ections 1 to 11 inclusive, shall he payaitle by such corporations and associaticns. 
 semi-annually on the first juridical day in the months of June and Decemher in 
 each year, commencin^ on the llrst Juridical day of June followinfj; the passaj^e 
 hereof, on which day the first semi annual payment of the taxes aforesaid shall he 
 due and payable by such companies to the Hcceiver-deneral of the province. 
 
 3. On «;r before the first day of May in cat h year, every cor|)oration doin^ the 
 business of tire insurance or accident or guarantee insurance within the province, 
 shall, without awaiting any notice or demand to that effect from the Rcceiver- 
 (ieneral, forward to htm a detailed statement, in which shall be set forth the tfross 
 amount of the premiums received by such corporatioii in resnect of its fire, accident 
 and Kuarantec l)usiness within the province for the then last financial year, show 
 intJ also in the case of lire insurance corporations the amount paid by each such 
 corporation for reinsurance within the province or on the cancellation of any of its 
 policies. * » * In the case of life, tire, accident and guarantee companies doin^ 
 business within the province, each cf such companies shall «nnually at the same 
 date make a report to the Heceiver-liencral of the number and situation of its 
 agencies and of the names of its ajitetils at each agency, .vhich reports and returns by 
 this section re(|uire<l, shall In all cases be vcrilled under oath by the numager or 
 general agent within the province, then by the agent at the principal agency v hin 
 the province. 
 
 4. Every corporation or association whose duty it is to furnish a statement or 
 report to the Iteceiver-tiencral. as in the last |)receding section rei|uired, ncj;lecting 
 or refusing to make such statement or report, or making an incomplete or incorrect 
 statement or report, shall ipfo fiirto be liable to a line of ten dollars per day for 
 each day during which such neglect or refusal continues, counting from the day 
 when such return sliould have been made as rei|Uired iiy the preceding seel ion, 
 until such report or statement is forwarded to the Hecciver-Cieiieral. An incorrect 
 or incomplete statement shall be deemed not to be a report or statement within the 
 re(iuirements of this Act, 
 
 5. Kvery annual tax imposed by this Act shall on the date on which it becomes 
 due become a Crown debt, and if not paid on such date may be recovered with legal 
 interest thereon by an action brought in tlie name of Her Majesty by the Ueceiver- 
 tieneral of the province in any court of coinpclenl jurisdiction ; and all lines ini 
 posed by this .\ct shall he recoverable in the same matitit r. 
 
 (I. Costs shall not be awarded or adjudged against ller Majesty in atiy a lion 
 instituted in Her Majesty's name by the Ueceivertietieral under this Act. Iml on 
 the recommendation of the court the Ueceiver (ieneral may, in his <liscretion. psiy 
 to the party iti favour of which jitdgment has been renilered, the costs to which he 
 may deem such parly e(niitably entitled. 
 
 7. The taxes imposed by this Act shall form part of tin- revenue of the ])roviiice. 
 and any expenses incurred in carrying out this .\ct niiiy. from time to time, be paid 
 out of such revenue on the recoinmcndatioti of the Heceiver-Ucneral. 
 
 :« Vfr., Cap. i:i(X.H.) 
 
 Notwithstanding anything contained in the .Vet of \ssemlily, iV> N'ic, chap. I, 
 intituled; " An Act to impose certain taxes oti certain Incorporated ("ompanics and 
 A^i:^ocialions,'' the taxes imposed on all insnraiu'e companies as mentioned in the 
 said Act, shall lie payable on Ihe lirsl juridical ilay in the niotith of .Inne in each 
 year, and suih taxes shall be for the year following the date on which the same are 
 hereby initde payable. 
 
tioil 
 
 It 1)11 
 
 priy 
 
 I'll Ik- 
 
 )):li(l 
 
 |l|.. I, 
 
 anil 
 
 the. 
 
 [•lU'h 
 
 NEW BRUNSWICK ENACTMENTS. 817 
 
 .Vi Vic, Cai'. atN.H.). 
 
 .1/1 .1(7 lo iiiipiisi yV/.iv.t oil riTfiiiii I. iff lii.siirinin' .\(/<'>ifs. 
 (As (i:ietiilfil hi) ;'i:> I'ic, Ciij). ■!'/, (XJI.) 
 
 1. TluTi! .shall lie iinil is hcirhy imposed upon all Special or Travclliiiu' ' 'i-nts, 
 solicit inn ajiplicat ion fur insiiranee on hehalf of Life Iiisiiraiiee Conipaiiic!'. m \sso- 
 ••iatioiis of any kiixl (ioin.i< a linsine.H.s of Life or Knilownient Insurance, or on tielialf 
 of any Life Insurance ('iiin)iany or .V.ssociation to which the Imsiness of Fafe Insur- 
 ance is inciiient in ailililion to lit her purposes of its or(;ani/al ion, an annual tax or 
 license fee of one hnnilreil dolliirs, to lie paid to the Ueceivfi-t leneral, prii>r to such 
 anent or person etiLCULrinij; in such liusiness ; provided, however, that no person who 
 is a resii ,ii of the province at the time of the passing of this Act, and continues to 
 have a residence therein at the time of and diiriiiK such employment has an ollice or 
 li.xed place ot liusiness in the province, nor any person lieinjjt employed after the 
 pasisiuK of this .\ct, who shall have residi'd within the province t welve iniinlhs prior 
 to such employiiuMit, and has during such employment an ollice or llsed place of 
 business as aforesaid, shall lie suliject to the said tax. 
 
 2. The lax or license fee imposed liy this Act sliall, when collected, form part of 
 the revenue of the iiroviiiie, and the Iteceivertieneral may, out of I he proceeds 
 thereof, from lime to lime, on the order of the (uivernor-in Council, pay any ex- 
 penses incurred in carryinR out tlie provisions of tliis .Vet. 
 
 H. .Vny person lialile to the tax imposed liy seetion om- of this .Vet, who shall 
 ennane in the liusiness of solicit inw applications for insurance on liehalf of life insur- 
 Hiiee companies or associations a.s aforesaid, without having lirsl paid to the |{e- 
 ceiver-tieneral the ainonnt of the --aid ;ax, shall lie lialile to a penally of one hundred 
 dollars, and ten dollars additional for '-.v-ry day he so eiiKanes in such liusiness, 
 which penalty may lie rccoveri-d by .-ommary eonviclion, in the name of Her 
 Majesty, on Ihe infornuition of any person. All pemvlties when recovere<l shall be 
 by the •luslice forthwith paid ovci- to the iJei eiver-(!eneral. 
 
 I. .Vny atteiit or jierson paying llie tu\ aforesaid, shall receive a eerliticale under 
 the hand of Ihe Kecciver-General of Ihe payioent of the said l.-iv, and upon such 
 payment and the issue of such cert itlcale, not ice I hereof shall lie pulilished in 'he 
 Hityiil (liiziiti: The payment of such tax and issniuK of siich cert illcale shall entillu 
 the person mimed therein to prosecute Ihe said business for one year from the date 
 of such certillcate, but no lon^ter. 
 
 5, On Ihe hearing of any infornialion under this .Vet, proof of the fact of the 
 person cbarjied havint; soli-iled insurance as aforesaid, shall be /irimn luvir evi- 
 ilenci- of his vcnilt, and the onus shall be on him of provinu the payment of the said 
 tax. or that he comes within Ihe exception mentioned in section one of t his Act. 
 Tlie production of the certillcalc of the Heceiver-tieneral shall be evidence of pay- 
 ment of such tax. 
 
 (I. Any neiu'ral accent of a life insurance company or association whose territory 
 as such general afient includes New Mriinswick, and who resides outside thif* iiro- 
 vince, shall lie .subject to an annual tax or license fee of ten dollars, and not to the 
 tax or fee of one hundred dollars impoHcd liy section 1 oi this .Act. 
 
 7. On forwardinn to Ihe Heceiver (ieiierjil the report or statement of the 
 ajtencies, and the names of their agents or sub anenls, as rei|uired by chapter t, of 
 55111 X'ictoria, life insuraiu'e companies >*hall cause to be paid annually to the 
 Hecelver(ipiieral, the sum of two dollars for each a«ent and subagent, upon which 
 paynienl a license shall issue to each of such agenls or subaKents for whom Ihe 
 Nnid fee has been paid, and no person shall act as itKcnt or sub-aKent in soliciting 
 iiiHiirance for any life insurance company or association who is not so licen.sed witli- 
 out being subject to a peiuilty of ten dollars for every day he enganes in such liusi- 
 ness without license. 
 
 52 
 
 
818 
 
 INSURANCE LAW OF CANADA. 
 
 55 Vic, cap. 17 (N.B.) provides for the acceptance of "Policies of Guarantee 
 Companies a.s security for the faithful conduct of I'liblic OHIcers," 
 
 if . 
 
 At a moetiDg of the Board of Trade of .St. John, N.B., held on 7th September. 897, it wiu 
 resolved that the council bo asked to coiidider the ndTi!<Hbility of requeatltiK the Minister uf Agri- 
 culture to have a standard policy form prepared that will fairly protect both insurers and insured. 
 
 PRrNCE EDWAKD ISLAND ENACTMENTS. 
 
 ■0: 
 
 51 Vn:, CiiAi'. XII. 
 
 .1 II .1(7 to consolhliitf and a mend the serrnil Artx iiiror/xinilliii/ f/ir City uf 
 
 Charlotdtuirii. 
 
 I'.'i. Kvery life, marine or tire insurance company, or association estaljliiihetl in 
 the City of Charlott-etown, or having any branch oHice. aRcnt or agencies therein, 
 shall be assessed in respect of the real estal(! ami rnoval)le personal property owned 
 by saiil company or association in the same way as the other ratepayers of the City 
 of Charlottetown are assessed, and shall in iKhliiion thereto pay an annnal license 
 fee of lifty dollars each. If the same company or association is enmiged in more 
 than one branch of insurance business it shall pay a license fee for eacli l)riiiicli of 
 its business, at the rate above-mentioned for each. In cases wlieie assurance com- 
 panies are engaKcd in winding uji their Imsiness in the City of Charlottetown and 
 are issuing no new policies, they shall l*e exempt from such ad<lilional tax or license 
 fee, and shall only be assessed on their real and personal property. 
 
 71. The said annual tax or license fee of every cdiiip.iny, association or agency, 
 shall become due and payable on the first day of .June in each year, and the agent or 
 manager of any company or association which has not been incorporateil by the 
 l.egishUure of Prince Kdward Island, shall be personally lialile for the license fee 
 payable by the company or associatitni of which he is agent or manager, and also for 
 the rates and taxes payable in respect of the assessnu-nt on its real estate and 
 person!)! properly as if he had been assessed Iherefor personally, l)ut nothing 
 herein contained shall prevent the City Collector from enforcing the payment of the 
 license fee, rates and taxes due by any company ur association in manner herein- 
 after provided. 
 
 75. The annual tax or license lee payable by every such incorporated or joint 
 slock bank, life, marine or lire insurance company, or association, may be recovered 
 at the suit of, and in the name of the City Collec'lor in the City Court of said city, or 
 other court of competent jurisdiction. And proceedings for the recovery of any 
 such actual iax or license fee, shall be taken against any siicOi bank, company or 
 association in its corporate name, and any summons issued for the recovery of any 
 such annual tax or license fee, shall and may be served upon the cashier, secretary 
 or agent of such bank, eonij)any, or association, which service shall be good service 
 as against such bank, company or association. 
 
^if 
 
 i', 
 
 PRINCE EDWARD ISLAND ENACTMENTS. 
 
 57 Vic.CiiAP. :i, (I'.E.I.) 
 
 819 
 
 ipiiiiy or 
 siy of iviiy 
 J sccrel ary 
 |j(l Kervice 
 
 .'1)1 Act lo impose certain taxes on certain incor}wriite<l (.'oinpnnir.s unit Assucifi- 
 
 tions. 
 
 1 . Ill order lo provide for tlie exiKenvies of the public service there .sliall be ami 
 are hereby imposed upon the eoiiipaiiies and a.sHOCialions hcreiimfter iiientloneil, the 
 taxes hereiiiafler specitleally iiaiiied, wliieli taxes eacli it sueh liieorpDi-ated eom- 
 panies and assoeialioiis respectively, nhall annuady pay to t he Provincial Secretary 
 for the use of the Province. 
 
 (1) I'pon all companies accepting risks imd cairyiiin on 'he linsiness n' insur- 
 ance against lire in the Province, whose principal ollice or or>;anizalion is not within 
 the Provincr, the ; iiiu of one hundred dollars. 
 
 (l!) Upon all insurance companies and associations of uny kind having iiKencies 
 or accepting risks uiion the lives of persons within the Province and transacting the 
 business of life or endowment insurance therein as the sole object of their or^ianiza- 
 lion, or as incidental toother purposes of their oiniini/al ion. whose |irinclpal ollice 
 and orijanization is not within the province, the snni of oiu' hnndred anil lifty 
 dollars. 
 
 (:!) I'pon all companies doin)i the business of accident and guarantee insurance 
 within the Province, the sum of twenty-live dollai'H. 
 
 « * * * • 
 
 2. Such taxes as far as respects the corporations or nssocialions mi'nlioned in 
 sub-section 1 to 7 inclusive, shall be payable by such corporations and associations 
 senii-annually on the lirst .jiiridicjil day in (be nionlhs of .Imu" iind December in 
 each year, ciunmenciiiK on the lirst juridical day of .luiu' followinj; the passage 
 hereof, on which day the lirst semiannual payment of the t.ixes aforesaid shall be 
 due and payable by such companies to the Provincial Secretary of the I'rovince. 
 
 .'i. Kvery tax impo-ed by this Act shall, on the date on which it becomes due. 
 become a Crown debt, and if not paid on such dali', may be recovered with li'y:,il 
 iiilerest thereon, and full costs of suit by an iictiou broujflil in the name of Her 
 Majesty by the Pioviiuial ."secretary of Mie Proviiu'e, in the Supreme Court of .Judi- 
 cature of the Province every such action to be tried willioul a jury 
 
 4. Costs shiill not be awarded or adjudged attains! Her Majesty in any action 
 instituted in Her .Majesty's n.ime by the Provincial .Secrelary under this .Vet, but on 
 the reeomniendal ;<ui of the Court, the Provineiul .Secretary may, in his discretion, 
 pay lo the party in favour of w hich judKuu-nt has been renderc<l, the costs to which 
 he may deem such party eipiitably entitled. 
 
 .■j. The taxes imposed by this .-Vet shall form |)art of the levemie of the provinci'. 
 and any expenses incurred in carryini: oul this Act may. from lime to lime, be paid 
 (Uil of such revenue. 
 
 (HI \'ii ., CilAi'. ."), (P.K.I. I 
 
 .1/1 .1(7 rrspeiii III/ Sinili/ iiml Hiiatd nit i- ('om/iil iiles. 
 
 1. That whenever any bond, niulertakin);. recojinizaiice, or other obliuatinn is 
 by law or the charter, ordinaiucs, rules or re).;ulalious of any mnnicip.ilily, board, 
 body, or^rani/at ion. court, judj.re or pul>lic ollicer, re(|nired or permilte(l lo lie made, 
 Kiven, tendered or tilled with surely or sureties, jind whenever the performance of 
 any act, duty or oblijjalion, or the refraininn from any act is re<piired or permitted 
 to be RUnranteed. such bond, undertaking, obllKation. recounizance or giiaranlee, 
 may be exccnteil by a surety eompany i|iudille<l as hereinafter provided ; and such 
 execution by such com|)any of such bond, undertakinvr, obli^^alion, reco(?'iizanri' or 
 Ltuarantee, shall be in all respects a full and complete compliance with every rec|uire 
 metit of every law. charter, luvliiiance. rule or re>;ulalion. thai such bond, under- 
 takinfi, obligation, recognizance or ,i;uai'antee shall be exeeuteil by one surety or by 
 
 ^11 
 
820 
 
 INSURANCE LAW OF CANADA. 
 
 
 one or more siiretips, or thftt such sureties sluill lie residents or ho\ischoltlcrs, or 
 freeludders, or either or both, or possess any other quiililiciitioii, and all courts, 
 judjies, lieads of depart iiientimnts, hoards, bodies, municipalities, and public 
 ollicers of every cliaraeter may, if lliuy see tit, accept and treat sucli IkhkI, under- 
 titking, obli){ation, reeojiiiizaiice or Kiiarantce, wlien so executed by such company, 
 as conforniiiiK to and jnlly and completely complying with every stieh rec(uirenient 
 of every such law, charier, ordinance, rule or re);ulation. 
 
 'I. That such company to be i|ualilled to so act as surety or (i'l'iranlor must, 
 comply with the rdinirements of every law of this I'rovmce apiiliciible to such com- 
 pany <loinj? business therein, must be a\ilhorixed under the laws of the province or 
 state where incorporated, and under its charter to become secui'ily upon such bond, 
 undertaking;, oblipit ion, reco.i;niz;ince or K'"k'"'intee. must have a fully paid-up and 
 safely invested and unimpaired capital of at least two hundred and tlfty thousand 
 dollars, must have ^:ood available assets exceeding! its liabilities, which liahilitifs 
 for the purposes of this Act, shall be taken lo be its ca|)ital stock, its outstanding 
 debts and a premium reserve at the rate of lifty per centum of the current annual 
 premiums on each outstanding; bond, uiulertakiufi, recognizance and obligation, of 
 like character in force, must tile with the Provincial .Secretary a written application 
 t) be aulliorized to do business under lliis .\ct, an<l also « itli such ap|)lication, and 
 in each year Iheri'after. ii statement verified under oath, made up to December 
 thirty lirsl, precedinn, statin); the amount of its j)aid-up cash capital particularizinj; 
 each item of investment, the amount of premiums upon existiuf.^ bonds, under- 
 takings, reco);nizances and oblij;ations of like character in force upon which it is 
 suretv. the amount of li.'ibility for >inearned portion thereof estimated at the rate of 
 fifty per centum of the current annual premiums on each such bond, undertaking;, 
 rc'^.fiuizance and oliliuation in force, stating Jilso the amount of its outstanding; 
 obligations of all kinds, and such further facts as may be by the laws of this Pro- 
 vince reimired of such company in transact ing business I herein; nmst alsoapi)oint 
 an attorney in this Province upmi whom process of law can be served, which ,ip- 
 pointment shall continue until revoked or anoli.er attorney substituted, and tnust 
 Hie with the Provincial Secretary evidence of sucli appointment, whicli shall state 
 the residi'm'e and oflice of such attorney. 
 
 3. That the I'rovincial Secierary, upon due proof by any such company of its 
 possessing the (|ualitications in this Act spcifled. shall issue to such company a 
 cert ilicate setting forth that such comjiany has iiualilied and is authorized for the 
 ensuing year to do l)usiness under this .Vet, which said certificate shall be evidence 
 of such ipialification of such company, and of its aiithoiization to bei'ome and to be 
 accepted as sole surety on all bonds, iindertakings, recognizances and obligations 
 recpiired or permitted by law or the charter, ordinances, rules or regulations of any 
 municipality, board, body, organization o"- public oflicer. 
 
 4. That from and after the passage of this Act. the surety or the representative 
 of any surety, upon the lM>nd of any trustee, committee, guardian, assignee, receiver, 
 executor or administrator, or other liduciary, may apply by petition to the court 
 wherein said bond is directed to be tiled, or which may have jurisdiction of such 
 trustee, committee, guardian, assignee, receiver, executor or administrator, praying 
 to be relieved from further liability .is such surety, for the acts or omissions of the 
 trustee, committee, gmvrdian, assignee, receiver, executor or adminiHtrator or other 
 fiduciary, which may occur after the date of the order relieving uucli surety to be 
 granted as herein provided for and to require such trustee, committee, guardian, 
 assignee, executor or administrator, or other tt<luciary to show cause why he should 
 not account, anil said .surety be relieved from such further liability as aforesaid, and 
 said principal be recpiired to give a new bond : and thereupon, upon liling of said 
 petition, said court shall issue siich order returnalde at such time and place, and to 
 m served in such u manner as said court sliall direct, and may restrain such 
 trustee, committee, guardian, assignee, receiver, executor or administrator, or other 
 fiduciary, from acting except In such manner as it may direct to preserve the trust 
 
 10 
 
 hit 
 
 n 
 
KWUP^-^ 
 
 MANITOBA ENACTMENTS. 
 
 821 
 
 estate ; and upon the return of niu-Ii order to show cause if the principal in the liond 
 account in due forni of law, and llle a new Ixind duly approved, then said court 
 must inal<e an order releasing saiil surety, lilinK tlie petition as aforesaid, from 
 lial>ility upon llie Itond for ai\y subsetiucnt act or default of the principal ; and iii 
 default of said principal thus accounting and lilin^ sucli new bond, said court shall 
 make an order direclinn such trustee, committee, );uar<iian, assijjnee, receiver, 
 executor or udministrator, or llduciary, to account in due form .)f law within thirty 
 days, and that if the trust fund or estate shall he found or made gooii and paid over 
 or properly secured, such surety shall lie discharged from any and all further 
 lialiility as such for the suhsecpient acts or omissions of the trustee, committee 
 guardian, assij^nee, executor or administrator, or fiduciary, after the date of such 
 surety heint; so relieved or discharjicd, and discharf^inji such trustee, committee, 
 guardian, a9si;;nee, receiver, executor or a>lministrator or Ihluciary. 
 
 5. That any receiver, assignee, guardian, trustee, committee, executor, adminis- 
 trator or curator or other (iduciary re<|uired by law, or the order of any court or 
 .judge, to give a l)ond or otluT obligation as such, may includt^ as part of the la>vful 
 expense of executing his trust such reasonable sum paid a company authorized 
 under the laws of this Province, so to do, for becoming his surely on such Ixtiid aR 
 may be allowed by the court in which, or a Judge before whom, he is reipiired to 
 account, not exceeding one per centum per annum on the amount of such bond : 
 and in all actions and proceedings a party entitled to recover tlisbursements therein 
 shall l)e allowed, and may tax and recover .such sum paid such a company for 
 executing any bond, rccogriizance. undertaking, Htijjulation or other obligation 
 therein, not exceeding, however, one per cent, on the amount of the liability upon 
 such bond, recognizance, undertaking, stipulation or other obligation during each 
 year the same has been in force. 
 
 , I 
 
 M ANITOB A EN ACTM E N TS. 
 
 •sentative 
 receiver, 
 he court 
 >n of such 
 •, praying 
 ons of the 
 or other 
 rety to be 
 guardian, 
 he should 
 isaid, and 
 ig of said 
 ce, and to 
 rain such 
 or ot her 
 the truat 
 
 KKVIsKI) STATfTES (»K M.XNITOBA I.S!)1, CIIAI'TKlt 'ti). 
 
 An Act to .ifi'ure ■mii/itnii vitnditionit in /tulicics of Jire lii.iiiranvr. 
 
 1. This Act may be cited as "The Fire Insurance I'olicy Act." 
 •1. Where, l)y rea.son of necessity, accident or mistaki', the conditions of any con- 
 tract of lire insurance on property in this province, as to the proof to lie given to the 
 insurance company after the occurrence of a tire, have not l)eeii strictly (complied 
 with, or where, after a statement or proof of loss has lu'eii given in good faith or on 
 behalf of the insured, in iiursUiincc of any proviso or c(jndition of such contract, the 
 company, through its agent or otlierwise, objects to the loss upon other grounds 
 than for imperfect compliance with such conditions, or docs not, within a ri'asonable 
 time after receiving such statement or proof, notify tlie a.ssured in writing that such 
 statement or proof is objected to and what are the particulars in which the same is 
 alleged to be defective, and so from time to time, or where from any other reason the 
 court or judge before whom a<|uesti<)n ndatiiig to such insurance is tried or im|uired 
 into considers it inc<|uitable that the insurance should be deemed void or forfeited 
 by reason of imperfect compliance with such conditions, no objection to the suf- 
 ficiency of such statement or proof, or amended oi' supplemental statement or proof 
 
 i'il 
 
INSURANCE LAW OF CANADA. 
 
 i 
 
 1:- 
 
 ■ ■; 
 
 ■n 
 
 . j 
 
 (us tlitt iMKc nut}' bet, shall, in any of surh ciises, Ih' iillowod oh a diNcharfXe of the lia- 
 bilitv of lilt! I'onipiiny un sucli rontriiet of insurance wlicri'ver enleri'd into; l)nt tikis 
 Hfi'lidii shall nol apply where the (Ire has taken place before the seventeenth day of 
 July. In the year one thousand ei^ht hundred and eighty ei^hl. 
 
 :i. The conditions sel forth in the schedule A to this Act shall, as against the in- 
 surers, be deenie<l to be part of every policy of lire insurance which has been, since 
 the sixleeiith day of .Inly In the year one thousand ci^ht hundred and el^htyclKhl, 
 or which shall hereafter be, entered into or renewed or otherwise ir. force in Mani- 
 toba, with respect to any proi>erty therein, and shall be printed on ever;, ■.ucli policy 
 with the heading "Statutory Conditions." 
 
 4. If a company or other insurer desires to vary the said conditions, or to omit 
 any of them, or to add new conditions, there shall be added in conspicuous type, and 
 in ink of dlirereiit colour, words to the following ellect : - 
 
 " \'ari<itioiifi in Comlifions. 
 
 "This policy is Issued on the above statutory conditions, with the follow. r.g 
 variations and additions : - 
 
 " These variations ^oc rr.s the ntur iniii/ln') are, by virtue of the Manitoba statute 
 in that In-half, in force so far as by a court (^r .judtie before whom a iiuestion is tried 
 relatitiK thereto, the\ shall be held to be just and rejisonable to be enacted by the 
 conii)aiiy." 
 
 .">. .\o such variation, addition or omission shall, unless the same is distinctly 
 set forth in the manner or to the etfect aforesuid. be lef^al aiul binding on the in- 
 sured ; and no iiueslion shall be considered as to whether any such variation, addi- 
 tion or omission is, under the circumstances, just and reasonable, but. on the con- 
 trary, the policy shall, as ajiainst the insurers, be subject to the statutory conditions 
 only, iiuless the variations, additions or omissions arc distinctly indicated and set 
 forth in the manner or to the etlecl aforesaid. 
 
 (!. In case any policy is entered into or reiiesve<l containing or including any con- 
 dition other tlian or dillerent from Tie conditions si>t forth in schedule A to this Act, 
 if the said condition so contained or included is held by a court or a judge before 
 whom a (piestion relating thereto is tried to be not just and reasonable, such condi- 
 tion shall be mill and void. 
 
 7. A decision of a court or a judge under this Act shall be subject to review or 
 appeal to I lie same extent as a decision by such court or judge in other casus. 
 
 '■J 
 
 SCHEDULE. 
 The following is the schedule referred to in this Act :- 
 
 Siiii;i)Ui.K A. 
 
 Ik 
 
 Staftitor;/ Cnnlit 'o-im. 
 
 1. If any person or persons insure his or their laiildingR or goods and can.se 
 the same to be described otherwise than as Ihey really .re to the prejudice of the 
 company, or misrepresents or omits to con 'minica'e any circumstmice which is 
 material to be made known to the company, !.• order to enable it t<i judge of the risk 
 it unrlertakes, such insurance shall be of no foii i in respect to the property in regard 
 to which the misreprc^sentation or omission is made. 
 
 2. After application for insurance, it shall be deemed that iiny policy sent to the 
 assured Is intended to be in accordance w'tli the terms of the a;)plication, unless the 
 company points out, in writing the parti ;ulars, wherein the policy differs from the 
 application. 
 
 
 f-'f 
 
. 
 
 MANITOBA ENACTMENTS. 
 
 823 
 
 ."{. Any cliiin^c iiiiitcrial to tlio risk, iiiiil within tlio t'ontrol or IxDowIimI);)' of I lie 
 iissuri'd, sliall avoid tlie (wlicy lis to tlie purl liHt-cliMl tlu'r»'l)y, iiiilc^is tlic cliiiiiKe is 
 promptly iiotilii'd in writing:; to the company or its local aKcnt ; and the company, 
 when HO notilicil, may rcliirn the prcminm for the unexpired perio<l and cancel the 
 |>olicy, or niiiy demanit in writing; au additional prunnuni which the insured Hhail, if 
 he desires the continuance of the policy, forthwith pay to the company ; and if he 
 neglects to make such payment forthwith after receiving such demand, the poliiy 
 shall he no longer in force. 
 
 1. If the property insured is iisslnned without a written permission endorsed 
 hereon hy iin anent of the comi)any duly authorixcd for such purpose, the policy 
 shall therehy hecome void ; hut this condition dv)es not apply to cases where there is 
 a change of title hy succession, or by operation of the law, or hy rea..on of death. 
 
 ."). When properly insured is only imrtially damaged, no ahandonnieiit of the 
 same will he allowe<l unless hy tln^ consent of the company or its agent ; .ind in case 
 of the removal of property to cscajje tonllagratioii, the company will conliil i''i< to 
 the loss and expenses attending such act cf salvage, projiortionately to the respc i im- 
 interests of the coi!U)any or companies and the assured. 
 
 ti. Money, hooks of account, securities for money and evidences of deht or title 
 are not insured. 
 
 7. Plate, plated ware, jewelry, medals, paintings, sculi)tures, curiosit. ■ , scientitic 
 and musical instruments, Ijullion, works of art, articles of virtu, frescoes, clocks, 
 watches, trinkets, p|:''t' "i.iHs and mirrors, are not insured, unless mentioned in !l ■ 
 policy. 
 
 H. The company is not liahle for loss if there is any prior insurance iii any otlier 
 company, un.iss the company's assent thereto appears herein or is cixlorsed hercfiu, 
 nor if any suhsei|uent insurance is ell'ected in any other company, nnh'ss and uniil 
 the conijiany assents thereto, or unless the company does not dissent in writing 
 within two weeks after notice of the intention or desire to ell'ect the subse(|uent in- 
 surance has been mailed to it addressed to its principal ollice in Manitoba by regis 
 tered letter, or does not dissent in writing after that time and before the subse(|uent 
 or further insurance is ell'ected. 
 
 !». In the event of any other insurance on the property herein described having 
 been assented to as aforesaid, then this company shall, if such other insurance 
 remains in force, on the hap|)ening of any loss or damage, only be liable for the pay 
 ment of a ratable proportion of such loss or damage without reference to the dates 
 of the dilleront policies. 
 
 1(1. The comi)any is not liable for the lo.ss following, that is to say ; — 
 
 (r/t Ffu- loss of property owi ed by any other party than the assured, unless the 
 interest of the assured is stn.ted \>\ or upon the policy ; 
 
 (//) Kor loss caused by i.'ivasl.iii, iiisiirrect i>>n, riot, civil commotion, or military 
 or usur|)e<l power; 
 
 (ct Where the insurance is upon iMiililings i- their contents, for loss caused by 
 ashes or emliers being <iepositeil, with the knowledge and consent of the assured, in 
 wooden vessels; or by stoves or stove pipes being, to the knowledge of the assured, 
 in an unsafe condition or iiniiroiierly securi^d ; 
 
 ((/) For loss or damage to goods destroyed or damaged while undergoing any 
 process in or by which the application of tire heat is necessii''y ; 
 
 (•') For loss or damage occurring to buildings or their contents while the build- 
 ings are being repaired by carpenters, joiners, plasterers or other workmen, and in 
 c()nse(|uence thereof, unless permission to execute such repairs had been previously 
 granted in writing, signed by a duly authorized iigent of the company. Hat in dwel- 
 ling houses, tiftcen diys are allowed in each year for incidental repairs, witliout such 
 permission ; 
 
 (/) For loss or damage occurring while petroleum, rock, earth or coal oil, cam- 
 phine, gasoline, burning lliiid, benzine, naphtha orany litiuid products thereof, or any 
 of their constituent parts (reflned coal oil for lif^hting purposes only, notexceediuK 
 
 ll 
 
824 
 
 insura:;oe law of Canada. 
 
 (Ivo p;allonM in qunntity, excepU'rt), or nioro th.m twoiityllvo pounds weight of ku"- 
 powdtT, is or are stored or kept in tlie liuildin^ insured or coritainin^; the property 
 insured, unless i)erniissioi; is ^iven in writing l)y tlie company. 
 
 11. The eoinpany will nmUe good loss caused l)y the explosion of coal pis in n 
 building not forming jiiirl of jjiis works, and loss by lire caused l>y any other ex- 
 plosion or linhtninji. 
 
 12. Proof of loss must he made by the assured, althou;;h the loss he payable to a 
 third party. 
 
 V.i. .\ny person entitled to makeacl.iim under lliis policy is lool)serve the follow- 
 ing conditions, - 
 
 Ui) lie is, forthwith after loss, to uive notice in writing to the cn'.ipany : 
 
 {!>) lie is to deliver, as soon after w.irds as practical)le, as particular jin account of 
 the loss as the natur'' of the casi> permits ; 
 
 (r) lie is also to furnish therewith a statutory declaialion. dccliirinj^,— 
 
 (1) That the said .icconnt is just and true : 
 
 (2) When and bow the tire originated, so far as the declarant knows or 
 
 liclieves ; 
 (M) That the lire was not caused through his wilful act or neglect, jirocure- 
 
 ment, nn-ans or contrivance ; 
 (4) The amount of other insurance : 
 
 (."i> All liens and encumbrances on the subject of insurance ; 
 (II) The place where the ju'opcrty insureil, if movable, was deposited at the 
 time of the lire ; 
 
 (r/> lie is, in support of his claim, if reipiired and if practicable, to product- 
 books of account and furnish iiwoices and other voucliers, to furnish copies of the 
 writ ten portions of all polici 's, an<l to exhiltit for examination all lh.it remains of 
 the propi-rty which was covered by thi' policy : 
 
 (') lie Is to |)roduc<', if rciiuired, a cerlilicale under the hand of a niagist rate, 
 notary pul)lic. commissioner for taking adidavils or municipal cleik, residing in the 
 viciiiily in which the lire happcnei', and not concerned in the loss or related to the 
 assured or sulVerer, stal ing lliat be has examined the ciriMimstances attending the 
 lire, bus or damage alleged, that be is aciiuainted with the character and circum- 
 stances of the assured or claimant, and that he verily believes thai the assured has 
 by mlsfort\ine and without fr.iud or evil praetici- sustained loss and d.imagu on the 
 suljject assured to the amount certilied. 
 
 1 1. The above proofs of loss may be made by the agent of the assured, in ca.se of 
 the absence or inal>ility of the assured himself to make the same, such absence or 
 inability being satisfactorily accounted for. 
 
 b"). Any fraud or faNe statement in a statutory deidaratioii, in relation to any of 
 the above particulars, shall vitiate the claim. 
 
 1(1. If any dillerence arises as to the value of the property insured, of the prop- 
 erty saved or of the amount of the loss, such value an<i amount and the proportion 
 thereof, if any, to l)e paid by the company, sinill, whether the right to recover on the 
 p ilicy is disp\ited or not, and indepondeiitly of all other (pieslions, be sul>mltted to 
 tlie arbitration of some person to l)e chosen by butb parties, or, if they cannot agree 
 on one pi'rson, then to two persons, one to l)e chosen l)y the p.-irty assured and the 
 other by the com; any, and a tblnl to be appointed by the persons so chosen or, on 
 their failing to agree, then by the .judge of the county court of the .judicial division 
 wherein tlie loss has happened ; am' such reference sball bi- subject to the provisions 
 of tlie laws applicable to references in actions ; and the award shall, if the company 
 is in other resjiects liable, l)e conclusive as to the amount of the loss and proportion 
 to be iiaid by the company ; where the full amount of the claim is awarded the costs 
 shall follow the event, and in other cases all ouestions of costs sball be in the discre- 
 tion of the arbitrators. 
 
 17. The loss shall not be payable until days after completion of the proofs 
 
 of loss, unless otherwise provideil for by the contract of insurauct-. 
 
1 
 
 MANITOBA ENACTMENTS. 
 
 825 
 
 
 (Thf hlitiil: sliiilt hr fillrd in the case of )i)ii/ii(il miil rush iiiutuiil romi>niiii's 
 irilh thf xvorl "si.rli/," and in thr riisi' of nUifr roin/iinii'S iritli Ihr iioni "thirfi/." 
 
 IH. The coiniHViiy, instciul of m.'ikiiii: piiyiiieiit, iiiiiy repair, ri'l)iiil(l or ri-pliict' 
 witliiii a ri'aM)ii!il)li' time tin- propi-rty (laiiia>;iMl or lo.si, ijiviii^ nolici' of llicir iiili-n- 
 lion williiii llfti'fii (lays after tlie receipt of tlie proof liereiii rtipiired. 
 
 1(1. Tlie iiiMiraiu'e may l)e termiiiateil hy tlic company liy j;iviiijj; riotiee to tliat 
 eU'ecl, and, if on llieeash plan. In li'mlerini; therewith a ratable jiroportion of the 
 premium for the nnexpii'ed term, ealenlated from the termination of the notice ; in 
 the ease of personal service of tlie notice, live thiys' noti<'e, exclndinji Sunday, shall 
 lie jjiveii. Notice may he niveii liy any company havin<; an ajjency in Maiiitoha liy 
 rejiistered h'lter addressed to the assnred at Ills last ]iosl olliee adilress notilied to 
 the company, and where no address notilied, then to the post olliee of the .•;Kene.\ 
 from which application was received, and whi're such Molice is tty letter then ten 
 days from the arriv.il at any po^l olliee in .Manilolia shall he <lccnn'd jjood notice. 
 And the policy shall cciise after such render and noi ice a'oies,iid and the expirai ion 
 of ihe live or ti'ii days, as the case may lie. 
 
 :J(). No condition of Ihe policy, eil her in whole or in p.irt. shall lie deemed to 
 have been waived by the company, unless the waivei' is cleirly expresM'd in wriliiift, 
 sinned by an anent of Ihe company. 
 
 'Jl. .\iiy ollicer or atrcnl of ihc coniii.iny. who assumes on bch.ilf of the cojiipany 
 to enter iiilo any wrilleii ajireeineiil relallni: lo any mat I cr connecled with the in- 
 suiaiice, shall be deemed /irhiiii I'lii'lf In be Ihe a.^ii'nt of the coiniiany for Ihe 
 purpose. 
 
 'I'l. Kvery action or proeeedini; a^.iinst the eompan.\ for the recovery of any claim 
 under or by virtue of this policy shall be absolii tdy barred, unless commenced within 
 tlie term of one year next after Ihe loss or damage occurs, 
 
 S\. Any wiitlen notice to a coniptiny fur Ihe purpose of the statutory conditions, 
 where tlie moih' ihert'of is not ex|)ressly provided for, may be by letter <lelivered at 
 the liead olliee of the company in Manilolia, or by rejiisleri'cl posi letter addressed lo 
 the company, ils mananer or aj;iiit at such head olliee, or by such written notice 
 Hiven ill any other manner to an aulhorized ai;enl of the coinp.tny. 
 
 prop- 
 irlion 
 )n I he 
 d to 
 atzree 
 (I the 
 or, on 
 vision 
 isions 
 upany 
 ortion 
 eost.H 
 lisere- 
 
 proofH 
 
 TIIK .MANITOH.V INSlH.VNt'K .VCT, 
 
 lU'iiijj; Cli.ipter l:!of the Acts of the Legislative .Vssemlily of tlie iirovinceof Mani- 
 toba, IMM, asseuti'd lo lind .>r,ireh, ISIU. As amended by ."iS Vie., chapters 'IX and I'l, 
 and lit) \'ic,, chapter 111. 
 
 1, This .Vet may be <ili'd as "The M.initoba Insnranci' .Act," 
 
 iNii:i{iMn;iAriii.\, 
 
 Scflion .'. Where the words followiiiK (.cciir in this Act they shall be construed 
 in the man tier hereinafter mentioned, unless a contrary intention appears. 
 
 (f») " I'roviiiee " and " I.egislalnre " mean respectively the province and the 
 lenislaliire of Manitoba, 
 
 {li) "Treasurer" means the liv.isurer of the luovince or any member of Ihe 
 Kxeculive Council, lo whom from lime to time may be transferred, I'itlier for a 
 limited period, or otherwire, Ihe powers and diitii's which are liy this .\ct assigned 
 to the In'asnrer. 
 
 ((•) '■Company" means and includes any corpo.ation, or any society or as.socia- 
 lion, incorporated or niiincorporated, or any partnership or any underwriter, except 
 as provided by sect ion H, thai iinderlakes or ell'ecis for valuable consideration, or 
 RKree.s or oIl'iTs so to undertake orell'ecl, in the province, any eoutracl of indeinnity, 
 nnarantee, suretyship, insurance, endowment, tontine, or annuity on life, or any 
 
826 
 
 INSURANCE LAW OF CANADA. 
 
 ii' ■??': 
 
 like contract which accrues payable on and after the occurrence of some contingent 
 event. 
 
 (rf) The expression "ofTer to undertake any contract," shall include the setting 
 up of a sign or inscription containing tlie name of the company ; or the distribution 
 or publication of any proposal, circular, card, advertisement, printed form, or like 
 document in the name of the company, or any written or oral solicitation in the 
 company's l)ehalf. 
 
 (»•) " Contract " means and includes any contract or a;ii'cement, sealed, written 
 or oral, the subject-matter of which is within the intent of ijaragraph "c" hereof. 
 
 (/) "Written" a» npplied to any instrument, includes written or printed, or 
 partly written and partly printed. 
 
 (f/) " I'rovincial Company " moans a company incorporated by or under any Act 
 of the Ijegislaturi' of Manitoba. 
 
 (/() "Canadian Company" means a company incorporated or legally constituted 
 in the Dominion of Canada, other than a company included under paragraph "{/" 
 liereof. 
 
 {/) " Inland marine insurance" means marine insurance in res])cct of subjects of 
 insurance at risk in Canada above the harbour of Montreal. 
 
 (./) " Mutual insurance " means insurance ,i:iven in consi<lerati')n of a |jremiuni 
 note, or undertaking with or withoul an immediate cash payment thereon ; and 
 " Mutual Company" means a comiiany empowered solely to transact such insurance. 
 
 t/i') " Cash-Mutual Company ' means a company organized to transact nmtual 
 iiisui'ance, Ijut enii)owered to undertake contracts of insui-ance on both the cash 
 ])lan and the premium note or mutual plan. 
 
 Al'l'I.lrAllO.N <)l' ACT. 
 
 SecHoii ,i. The provisions of this Act shall not apply:— 
 
 (a) To a company licensed by the Dominion of Canaila except as to sections, 2, 4 
 to H (both inclusive), 2.") to ;jl (both inclusive). II and \ 1, and .")() to .">1 (both i";clnsive). 
 
 i.icKNsi:. 
 
 Srrtioti .'/. No com|)aiiy shall undertake or solicit, or agree or otl'ei' to undertake, 
 anv contract within the irileni of seel ion 2 of this Act. whether the contract be ori- 
 gin il or renewed; except tlu' rene\>al from time to time of life assurance policies: 
 or accept or igree or lu'gotiate for any premimn or other consideration for the con- 
 tract; or prosecute or maintain any action or proceeding in respect of the contract, 
 except such actions or proceedings as arise in winding-up the allairs of the company, 
 without llrst obtaining from the Irt'arurer, iuul holding a license or certiticate of 
 registration, or a renewal of such license c!i certiticate under the provisions of this 
 Act. 
 
 Siftiiiii ■'. The license or certilica'e of registr.ition shall li'' in such form as may 
 be from time to time determined by t hi' treasurer, and il sliall specify the l)usiness 
 to be carried on by the company : and shall expire on the thirtylli'st day of Decem- 
 ber in each year, Imt shall lie renewable from year to year. 
 
 Sfctioii I'l. So soon as a company applying foi' a license has deposited with the 
 treasurer the securities hereii'.after nentioneil, and has otherwise conformed to the 
 reipiirements of this Act, the Treasurer may issue the license. 
 
 (ii) Insurance licensees if the Dominion of Canada shall, upon due application 
 and upon proof of such Dominion license subsisting and upon otherwise conforming 
 to the provisions of this Act applicable to Dominion licensees, !»■ entitled to be regis- 
 tered under this Act. 
 
 Sn-lioii 7, Kvery company, on (Irst obtaiidng such license or certiticate of regis 
 (ration, shall forlhwitii give notice thereof in Ibe Mnnitolid (Itizittf and In at least 
 one newspaper in the city of Winnipeg, and shall continue the publication thereof 
 
MANITOBA ENACTMENTS. 
 
 827 
 
 once t'licli week for the s]>iice of four weeks ; and shall siv<5 the like notice for the 
 same period when the eonioany eeases to carry on business in Manitoba. 
 
 Section iS'. The treasurer shall cause to be published yearly in the Manitoba 
 Gazette a list of companies licensed or rcKislered under this Act, with the amount of 
 the deposit, if iviiy, made by e.ich company ; and upon a new company beiiiu licensed 
 or re)2;i8tere(l, or upon the license or certificate of a company bein^ withdrawn, he 
 shall publish a iiotici thereof in the Afiinilolxi (lazvltf for the s])ace of two weeks. 
 
 Sections ■'', ID, II, treat on ti.e sut),ject of deposit of securities with the Treasurer. 
 
 Srcfion IJ. A company havinu; made a deposit under this Act shall be entitled to 
 withdraw the deposit, with tlie sanction of the Lieutenant-Governor in Council, 
 whenever if is made to appe.'ir to the satisfaction of the I,ieutenant-(iovernor in 
 Council that the company is carryliip;on its IhisIiicss of insurance uuder license from 
 the Dominion of Canada. 
 
 Sectioiis 1-1 to .'/ refer to the administration and Insulliciency, etc., of securities. 
 
 1 
 
 the 
 the 
 
 ution 
 inin« 
 egis- 
 
 euls 
 least 
 t>reof 
 
 i)(K'imi;n'is ■!■() ]',i: kii.ed. 
 
 Sectio}! ..'•<. Hefore the issue of a license or certillcate of reu,isl rat ion. to a com- 
 pany not incorporated l)y proviiu'ial authority, the company shall lile in the ollice of 
 the treasurer : 
 
 (</) A cerlilled copy of the Act of incorporation, or other instiument of associa- 
 tion of the company ; 
 
 {!>) A power of attorney containing Ihe matters hereinafter mi'iitioned from tll(^ 
 company to its cliief otiicer or aicc it In the province, or some other person re-ident 
 and doing Ijusiuess in the province, under the seal, if any, of t he company, and signed 
 i)y the president and secretary or other proper ollicer thereof, in tlu' inesence of a 
 witness who shall moke oath or allirniation as to I hi' due execution tliereof, and the 
 odicial positions in the company held by the olllcers signinp; such power of attorney 
 shall be sworn to or aillrmed by some person cognizant of the facts necessary in that 
 behalf. Whenever tlie company has, by such iwwer of a'torney under the seal of 
 the company, thereof api)ointed a general agent for Canada and ha'< thereby author- 
 ized such general agent to a|)point chief olllcers or agents of the company in the 
 various iiroviiices of t'anada, t hen after tiling with the I'rov iiicial 'rreasurcr a dupli- 
 cate original of the said first mentioned docntneiit, powers of at torney executed by 
 the said general agent for Canada under his seal, in tlu' presence of awitiu!sswho 
 has by oath or aflirination duly verilled the execution thereof, shall l)e deetned sulli- 
 ciently executed l)y the company for all the i)urposes of this Act. 
 
 <c) In the case of comj)anies not liceiisied under " The Insurance .Vet of Cunada," 
 a Htatenient of the condition and atl'alrs )f the company on the thittyllrst <lay of 
 December then next prec'dlng, or up to the usual balancing day of the company tbiit 
 such day shall not be more th.in t welve months befoie the tiling of the statement >, 
 in such form as may be reiinlred by the treasurer. 
 
 Sir/io)i ~'i Sm'li power of attorney shall declare at \\ !iat place in the province 
 the chief agency, head ollice or olllce of the attorney of the company is, or is to be 
 established, and shall expres-^ly authorize the attorney to receive service of process 
 in all .actions, suits and proceedings ag.iinst the company in the province In respect 
 of any liiibilities incurred by the com|)any therein, and shall declare that service of 
 process for or in respect, of such liabilities at the chief agency, or pi'i'sonally mi the 
 attorney, at the jilace where such chief agency, head ollice or ollici' of the attorney is 
 established shall be legal and liindiiigon the company to nil intents and purposes 
 whatsoever. 
 
 Srr/ion S. Whenever a company licensed or registered under this Act changes 
 its chief agent, altorney, head odice or chief ngciu'y in Manitoba, the company shalt 
 file a ))ower of attorney as hereinbefore mentiom'd, specifying the change, anil con- 
 taining a similar declaration as to service of process as hereinbefore mentioned. 
 
 Section .W. Duplicates of such powers of attorney, didy verilled as aforesaid, 
 
828 
 
 INSURANCE LAW OF CANADA. 
 
 simll be nU'd by the compnny ot Winnipeg in the oHIce of the prothonotiiry of the 
 Court of yueen's Bencli. 
 
 nKCORI) TO UK KKI'l' IN TKIOASl-RV DKl'AHT.MKNT. 
 
 Section -"■>. 'I'here sliiill he kept in (lie oHiee of tiie treasiirer ti reeoril of the seve- 
 ral (locmnents tiled l)y every eoinpiiny iinder tliis Aet, and under the heading of the 
 company sliall be entered tlie securities deposited on its account witli the treasurer, 
 naming in detail the several secuiities. their par value, and value at wiiich they are 
 received as deposited ; and before the issue of a new license, or the renewal of a 
 license to 'a company, the requirements of the law shall be complied with by the 
 company, and tlie statement of its allairs must show that it is in a condition to meet 
 its liabilities ; and a record of tlie licenses and certilicales of registration as tliey are 
 issued or renewed shall also lie kept in the otiice of the treasurer. 
 
 Section ■!'). Kach company shall pay to the treasurer the following fees : ~ 
 (a) For recording and tiling in the oltice of the treasurer the documents required 
 by section 25, .So. 
 {I)) ih'cjhaled). 
 (r) (liejieolnl). 
 
 ill) For Initial license to do business, or renewal thereof,— 
 (1) In the case of a ))rovincial company, sSllH). 
 
 (J.) In the case of any other company, except as hereinafter specified, $200. 
 (/') For initial certilicate of registration or renewal thereof, $3K). 
 if) For initial license to do business, or certiticate of registration or renewal 
 thereof,— 
 
 (I) lu tlie case of an inland marine insurance company, or of an accident or 
 
 guarantee and surety company, S'Zii. 
 (2> In the case of licenses or certiticates heretofore or hereafter taken out 
 at a time in the calendar year later than the month of Ajiril, refunds 
 maybe made to the coinpanies by tlie I'rovincial Treasurer in such 
 proportions and according to such regulations as may be decided 
 upon ijy the Lieutenant-tiovernor in Council. 
 ((/) (Repealed). 
 
 SI:RVRK of PROl'HSS. 
 
 Section ■<!. After such certitied copies and imwer of attorney are tiled as afore- 
 said, any process in any action, suit or proceeding against the company, in resjicct 
 of any liabilities incurred in the province, may be served upon its attorney appointed 
 pursuant to section 2.") of this Act, and such service shall be deemed to be service on 
 the company. Provided, however, that nothingherein contained shall render iiivaliil 
 service in any other mode in which the company may be lawfully served. 
 
 Sections .ij to 'i<i refer to " ('liange of Name and Head Ollice," " Hooks to be kept 
 by Companies," and " Annual Statements." 
 
 Section U. Kvery company licensed to do business by the Dominion shall an- 
 nually tile with the treasurer on the lirst day of .January, or within three months 
 thereafter, a certified copy of its annual statement furnished the Insurance liranch 
 of the Department of Finance at Ottawa. 
 
 .Sections f.' and '/■< refer to " Cancellation of License." 
 
 Section 4'/. The suspension or canecilation or non-renewal of the license of any 
 company, under "The Insuraiu'e Aet of Canada," shall ipnoj'itcto in the respective 
 cases operate as a suspiMision or cancellation of registry under the Act without 
 notice from the treasurer ; provided that, if the com|)auy's li(^ense shall be revived 
 under " The Insurance Act of Canada," the Trea.surer shall, on proof of such revival 
 
MANITOBA ENACTMENTS. 
 
 829 
 
 
 and piiyment of the fee hereinbefore provided for, ^riuit said company a new ( i rtiti- 
 fate of rej;istration. 
 
 Srclioiis V' to }'■' refer to " Uiniidction." 
 
 I'KNAI.riKS. 
 
 Section ■'iH. Any director, otileer, agent, employee, or otiier person wlio. In 
 eontravention of section \ of this Act undertakes or ellects. or agrees or oilers to 
 undertake, or solicits any contract orcollectsany i)reMiium on behalf of any company, 
 without the company lieiiij; licensed or rcj^istered undi>r this Act, or if such license 
 or certilicate of registration lias l)een suspended or cancelled wjlhont renewal nr re- 
 vival thereof, shall be liable to a penalty of two liundred dollars for every such con- 
 travendon .if this Act. 
 
 SicflDii ■'/. Any violatio" of section :iSlo II of this Act shiill subject the lonipany 
 violating; same to a penall\ of two hundred dollars for every violalion. and lo an 
 a<lditional sum of one hun<Ired dollars for every month durinu; «liicli the coiiipaay 
 lieu'lects lo lile .such allidavils, slatntoiy declanii ions and statements as arc therein 
 renuired; if such penalties are not |)aid, the IJcnlenant tlovernor in Council may 
 order .such company's license or certilicate of re^isi latioii to be suspcnde(l, or ca'i- 
 celled, as may be <leemed expedient. 
 
 Sictiuii ■''..'. Any penalty imposed by this Act, when recoviM'ed, shall beloni; lothe 
 province of .Manitoba. 
 
 Sic/ioii •'•'. -Ml penalties imposed by this Act may be recovered by and before 
 any pulici" maitlstrate, or two Just ices of the peace; the information or complaint 
 shall be laid or made in writing w ithin one >ear from the connnissinn of the oU'ence. 
 and the pro\ isions of sei'tions Si!( to !M)!t, both inclusive, of the .\cl of the I'afli anient 
 of Canada, known as " The Criminal Code, I.'^!I2," and any amendmenls now or here- 
 after to be made to said sections of said Act, shall apply to the said proceedinj^s. 
 
 SrrliDii .'ij. This .Vet shall come into force on the thirty-lirst day of December, A. 
 1)., ISlll. 
 
 I'l.Aii-: (IK i'AVMi:.\r (tf i.iii: imu.k v. 
 
 Srrli'iiii ■'!■'. 'Pile moneys jiayablc under any poliry of life .issurani'e already isMicd 
 or that may hereafter be issued by acnuipany that hasalrcady obtained or may here- 
 afterobtaiu a license or certilicate of registration under the provisions of t his .\ct, 
 shall, in all cases be payable in tills jjrovince when the assured resides th 'rein, not- 
 withstandintr anythinu contained in any such policy or the fact that the head ollice 
 of the company is not within this inovinee. 
 
 I'pt 
 I an- 
 
 JltllH 
 
 Inch 
 
 any 
 Itive 
 Lout 
 Ived 
 lival 
 
 THK I-'OUKI(!.\' COHFOKATIONS ACT. 
 
 An .\rf Ri'spi'ftiufi CorfwrntiDiin i mor/ioftiti'd out of Mii iiilnlin, 
 
 Qeina; Chaptc; 2, of the .\cts of the I.e^i.^lalive .Assembly of the Province of 
 Manitoba, IK) Vie. 
 
 siKiKT riTi.i:. 
 1. This Act iiuiy lie cited as " The B'oreiRn Corporations Act." 
 
 !,!( i;nsi;s. 
 
 'i. Any company, institution or corporation duly incorporated under the hiws of 
 Great Britain or Ireland or of the Dominion of Canada, or of the late province of 
 Canada, or of aity of the provinces of Canada, or of any Stale of the United States of 
 
830 
 
 INSURANCE LAW OP CANADA. 
 
 ;^n 
 
 
 , i 
 
 isr 
 
 America, or of any oilier foreign state or country (inly iiiitliorizcd to carry out or 
 cHect any of the purposes or objents to wliicli the legislative authority of the Legisla- 
 ture of Manitoba extends, may obtain a license from the Lieutcnant-tiovernor in 
 Council aathorizinjj; it to carry on its business within the province of Manitoba on 
 compliance with the provisions of this Act, and said company, Institution or corpora- 
 tion shall thereupon have the same powers and privileges in Manitoba as if the same 
 were incorporated under the i)rovisions of a statute of the province of Manitoba; 
 Provided, however, that the Lieutenant-Governor in Council may restrict such license 
 in any manner that may seem desirable. 
 
 (2) This'section shall not apply to, or In any way allect any compan> , institution 
 or corporation incorporated and now existing or hereafter huorporated, the powers 
 and objects of which are the aciiuiring, purchasing, holding and receiving properly, 
 real or personal, for llie use or uses of any particular congre.i;ation or congregations, 
 or mission station or stations in connection with any church or religious denomina- 
 tion, or the lending of money on the security of real ov personal estate, and with or 
 without interest, for the purchase or erection of churclies. chapels, manses or person- 
 ages and buildings connected therewith for the use or uses of any particular congre- 
 gation or congregations, or mission station orstations, in connection with any church 
 or religious denomination ; and it shall not beneces>.ary for any such company, insti- 
 tution or corporation to obtain a license authorizing or enabling it to exercisi" the 
 powers or carry out the objects fur which It has been or may hereafter be, incorpor- 
 ated or any of them ; Provided, that if such couipany. inst it ution or corporation de- 
 sires to exercise any other powers than those mentioned in this sub-section, a license 
 shall be nei'cssary. 
 
 'A. Any insurance company incorporated as provided in the second section of this 
 Act, may, upon complying with the re.iulrenients of this Act. api)ly for and obtain a 
 license under the provisions of this Act, empowering it to purchase real estate, and 
 to loan and inve.st its moneys u])on the securities set forth in this Act, to the extent 
 liermitted by the Act or charter of corporation of the company. 
 
 •I. Any such license (jbtained by any such insurance company, within three 
 months after the seventh day of .Inly, in the year one tlions;ind eight hundred and 
 eighty-three, shall be deemed to have ratilied .uid conlirmed all previous acts of (he 
 company, and shall be construed as if such license had bien granted before sui b com- 
 pany invested any money in this province : saving, however, all Invi'stments which, 
 on the s;iid seventh day of -luly. had l)een i|aestioiied by proceedings commenced in 
 any court of law in this province. 
 
 IIOlfMKNTs TO IIK l-I1,l:l). 
 
 ."j. lU'fore the iss\H' of a license to any such comp.iny. institution or corpin-ation, 
 the company. Institution or corporation shall llle In I lie fillice of the Provincial Secre- 
 tary Ut) a certified copy of the iict of incorp(nation or other insinuuent of associal ion 
 of the company : I'd an atlidavit or statutory decliiriil ion that the sal<l company, in- 
 stitution or corporation is still in existence, iind legally authorized to transact busi- 
 ness under its Act of incorporation, or other instrument of association ; (c) a copy of 
 the last auditor's report ui)on the llnancesof the company, institution or corporation : 
 (ih a power of aliorney containing the matters hereinafter nu-ntioned from the 
 compatiy. instit\itlon or corporation to its chief ollicer or agent in the provini<^ oi- 
 some other ))cr.^on resident and doing business in the province, under the seal, if any, 
 of the company, institution or corporation, and sigiu'd by the president and secretary 
 or other proper oHicers thereof, in the presence of a witness, who shall make o.ith or 
 adirmation as to the due executUui thereof. The otiicial positions in the company, 
 institution or corporation, held by the otlicers signing such jwwer of attorney, shall 
 be establislu-d by the oath or allirinatioii of .some person cognizant of the fads, 
 
 ti. Such power of attorney shall declare at what place in the province the chief 
 agency, head ollice, or ollice of the attorney of the company, institution or corpor.i 
 
1 
 
 MANITOBA ENACTMEXTS. 
 
 831 
 
 lion is, or is to be established, mid shall expressly autliori/e the attorney to rect'lve 
 service of prooess in all actions, suits and proceedings against such company, insti- 
 tution or corporation in the province in respect of any liabilities incurred by the 
 company, institution or corporation therein, and shall declare that service (if process 
 at the chief a^^ency, or personally on the attorney at rhe place where such chief 
 agency, head ottice, or otHce of the attorney is established, shall be legal and binding 
 on such company, institution or corporation, to all intents and purposes whatsoever. 
 7. AVhenever a company, institution or corporation licensed under this Act, 
 changes its chief agent, attorney, head oflicc or chief asency in Manitoba, the com- 
 pany, institution or corporation, shall tile a power of attorney as hereinbefore men- 
 tioned, specifying the change, and containing a similar declaration as to service of 
 process as hereinbefore tnentioncd. 
 
 B 
 I't 
 
 
 Norrci-; ok i.icknsks. 
 
 ><. Rvery company, institution or corporation obtaininu; siicli license as aforesaid 
 shall forthwith give iiotice thereof in the Mintilohii Gdzrttc, and in al least (nic 
 newspaper in the municipality, city or place where the chief ajiiMicy, licid ollice. or 
 otilce of the attorney of the com|)any, institution oi' corporation is. or is to be evt.i- 
 Wished, of which tour insertions in said (licrl/f and newspaper respectively shall l)e 
 nnflieieut. and such notice shall state the name of the attorney so appointed as 
 aforesaid, and when a new attorney shall be appointed uiuler the pi'ovisions of thi> 
 .Vet the name of such new attorney, and the like notice shall be given when such 
 company, institution or corporation shall cease to carry on business within this 
 province. 
 
 lillAl, KSTATl:. 
 
 i). No company, institution or corporation, not incoi-poraled under the provisions 
 of the statutes of this province and not having obtaincil a license under this Act. ex- 
 cept those mentioned in subsection 2 of section J. of this Act, shall be capable of tak- 
 ing, holding or aciiuiriiig any real estate within Ibis province or of exercising Ilic 
 powers mentioned in section 11 of this .Vet. 
 
 10. Any such coni|)any, institution or corporation may, on obtaining a liccn-r 
 under this Act, hold in perpet\iity lands to the extent set forth in its license, or in 
 any order that may be made by the l.ieutenant-tJovcrnor in I'ouncil at any time 
 after the issue of the license. 'I'his section shall apply to lands heretofore or here 
 after acipiired . 
 
 11. Such {'onipany. institution or corporation licretofori' or liercafteM- licenscil 
 mav take and hold any mortgages of real estate and any railway, niusiicipal oi' other 
 Ik-ikIs i)f any kind whatsoever and on the security thereof may lend its money, 
 whether the bonds form a charge on real estate within the province or not, and may 
 bold such mortgage in its corporate nanu'. .uid may sell and transfer the same af its 
 pleasure and in all respect s shall have and Cii.joy the same powers ami privilcgi's 
 will regard to lending its inoney and transacting its business wiihiii the said 
 province as a private individual might have and en.joy. so far as m.iy be within its 
 corporate powers and within the competence of the legislature of .Manitoba to grant. 
 
 12. Any such company, institution or torporalion, heretofore or hereaftir 
 licensed as aforesaid, shall be capable of taking, holding and acipiiring in addition 
 to the land specitied in section II) hereof, all such lauds and tenements, real and 
 p.'rsonal estate, as may or shall have been honii title mortgaged i.) such company, 
 institut ion or corporal ion, by way of security for, or con \ eyed toil in satisfaition of 
 debts pivvlously contracted in the course of its business oi' pui'<'hased at .judicial 
 sales for such indebtedness, or aciiuired under tax sales or otherwise acipiired or 
 purchased for the purpose of avoiding a loss to the company, institution or coipor 
 ation in respect thereof, or of the owner thereof. This section shall apjily to lauds 
 
! 
 
 flh 
 
 882 
 
 INSURANCE LAW OF CANADA. 
 
 liiTftofort' or hereiifter iic<mirt'd liy any sudi coiiipiiny, institution or corporiitioii 
 luTi-tofore or hereafter licenstd as uforesalil. 
 
 m^i- 
 
 
 U ''u. 
 
 Fi:i:s. 
 
 I:t. Tlio fee for sucli license shall l)f such snni as may he tlxed hy the Lieutenant- 
 Uovernor in Council. 
 
 i;viiii:m I-: ok i.uk.nsk. 
 
 1 1. A ccrtillcate under the hiin<l of I In; I'rovincial Secretary of the issue of such 
 li(tense shall he received as /)y/;/ir( /Wc/i' evidence! in all courts of justice and other 
 triliiinals, that such license has hecn duly issui'd, and is in force ; and the I'rovincial 
 Secretary shall furnish such eertillcate to any person on payment of a fee of i>ne 
 dollar. 
 
 IIKVOIA I KiN OK l,l( KNSl:. 
 
 1">. The l-ieutenant Governor in I'ouncil may at any time revoke any license 
 granted under this Act or under any Act or Alts for which this Act has heen sub 
 stiluted on account of the violalinu liy any such comp.iny, institution oi' corporation 
 of any of the provisions of this Act. Any such license so revoked shall he null and 
 void as to any nuitter occurrinB .subsequent to »uch revocation. 
 
 A.NM AI, STATI'MllN'r. 
 
 l(i. Kvery company, institution or corporation licensed under this Act shall 
 annually transmit, on or before, the lifteenth day of March in each year, to the 
 J'rovineial Secretary, a stateiii.iit in ciuplicate, verified hy the oath of the principal 
 anenl for tlie pi-nvince of Manitoba, setliny: forth the capital stock of the company, 
 the amount of stock sui)scril)ed ami the amount paid in upon such stock, and as to 
 the business of the said company, institution or eor|)oralion in the province of 
 Manitolja, the aniount invested in mortKa^e, the estimated value of real estate 
 under mortgage, the number of acres of faim lands under mortfjage and such other 
 details as the said Provincial .Secretary may reiiuire ; and the said statement shall 
 he ma<le up to the end of the last preceding (iscal year of the company's business. 
 
 17. The Foreign Corporations Act, being chapter 21 of the Hevised Statutes of 
 Manitoba, and the .\cts amending the same, namely, chapter 4 of iV> Victoria and 
 chapter of .")(' N'ictoria, are hereby repealed. Licenses heretofore issued under the 
 provisions of tlie .said "The Foreign Corporations Act,'' or of any Actor Acts for 
 which the same was wholly or partially substituted, shall be held to be eontimied in 
 force as if ts.sued under this Act. 
 
 IS. This Act shall not apply to the corporation known as "The Governor and 
 Company of Adventurers of England trading into Hudson's Hay." 
 
 .')4 Vic, cap. 10(5 (Man.) provides for the " Incorporation of Mutual Hail Insur- 
 ance Companies," and 58 Vic, cap. H7 (Man.), .511 Vic, cap. U)(Man.) and (K) Vic, cap. 
 2;{ (Man.) provide for the establishment of a " Muniuipal Hail Insurance'" fund. 
 
 m. 
 
1 
 
 BRITISH COLUMBIA ENA(:TME:NTS 
 
 THE FIRE IXSURANCE POLICY ACT (B.C.) 
 
 Hoiiifc cliaptci' 12 of the StiitiUf's of ISiKJ, asaineiulcd by cliaprer22 of the Staliites 
 <;f l«)."i(H.C.). and by chuptur :iOof the Slatutcs of ISilt! (B.C.) 
 
 An .let fo siriirc i'liifofiii ('oiidifioiis in I'otlrien of Fire Insiirtt iicf, 
 
 1. This Act may liu cited as tlie " l''ire Insur-inee I'oliev Art, ISlCi." 
 
 2. \Vh(!re, t)y reason ot necessity, accident, or inislalvc, tlie londitions of any 
 contract of tire insurance on properly in tliis province, as to llie i)roof lo lie gi\cn to 
 the insurance company after tlie occnrrcnce of a tire, liave not lieen strict ly complied 
 witli, or where, after a statement or proof of loss has been given in jit'od faith, by or 
 on behalf of the assured in pursuance of any proviso or condition of such contract, 
 the company, through its a^enl or otherwise, objects to the loss upon ot'ier .mounds 
 tlian for imperfect compliance with such conditions, or does not, within a reasonable 
 timeaftcr receivinji such stalemeni or jn'oof, notify the assured in writiufr that such 
 statenu'iit ov proof is objeited to, and what are the particulars in which the same is 
 allcfied lo be defective and so from time to lime, or where for any other reason the 
 court or judtie. before whom a c(Uestion relating; to such insurance is tried or 
 in(|uircd into, considers it ine(piital)le that the insurance should be decimed voiil or 
 forfeited by reason of imperfect compliaiu-e with such conditions, no objection to the 
 sullicieiicy of such statement or proof, or amemU'd or supplemeiilal statement or 
 proof (as the case may be) shall, in any of such cases. l)e allowed as a discharjie of 
 the liability of the company on such contract of insurance wherever entercl into; 
 but this section shall not ap|)ly where the lire has taken place before the coming into 
 force of this Act. 
 
 H. The conditions set forth in the schedule of this Act shall, as againsl the 
 Insurers he deemed to be part of every contract, whelhei' sealed, written, or oral, of 
 lire insurance hereafter eiUere<l into or renewed or otherwise in force in British 
 Columbia with respect to any property I herein, or in transit llicrefrom or Iheielo, 
 and shall be ininted on every policy of lire insnranre, with the lie.idinii "Sialntory 
 Conditions." 
 
 I. If a (U)mpiiny or other insurer desires to vary the said conditions, or lo omit 
 any of them, or to add new conditions, tliei'c shall lie added on the policy in 
 conspicuous type, and in ink of dill'erent colour, words to the followiiiir eU'ect :— 
 
 V.Vlti.VI'IONS IN ( O.SDITIONS. 
 
 " This policy is issued on the above statutory conditions, with the followint? 
 variations and additions : 
 
 " Tliese variations (or as the case may be) are, by virtue of the Urilish Columbia 
 Statute in that behalf, in force so far as, by the court or .judge before whom a ipies- 
 tion is tried relating thereto, they shall be hehl to be .just and rensonaMe to he 
 exacted by the company." 
 
 53 
 
834 
 
 INSURANCE LAW OF CANADA. 
 
 i 
 
 w 
 
 5. No such viiriiit ion. addition or oiuis.sion sliiill, unle>is the miiik- is distinctly 
 indicated and set forth in the manner or to llie effect aforesaid, 1)8 le^al and binding; 
 on the assured ; and no ((uestion shall be considered as to whether any such vari 
 ation, addition or onnssion is, under the circumstances, just and reasonable, but, on 
 the contrary, the policy shall, as against the insurers, he subject to the statutory 
 conditions only, unless ^Kn variations, additions or onuKsions are distinctly indicated 
 and set fortli in the numner or to the etlect aforesaid. 
 
 (i. In case a policy is entered into or renewed containing or includinK any con- 
 dition otlier than or dillerent from the conditions set forth in the schedule to this 
 Act, if the said condition so contained or included is lield liy the court or judfic 
 l)efore whom a (piestion relating thereto is tried, to be not just and reasonable, such 
 condition shall be null and void. 
 
 7. A decision (jf a court or a jiulge under this Act shall be subject to review oi- 
 appeal to the Hanie e.vtent as a decision by such court or judge in other cases. 
 
 H. [licpiiilcilA 
 
 Srvtion 'i tif 'I'J Vict., till). .\\, is as folloirf! : " Section .'^ of the " l""ire Insurance 
 Policy Act. IWW," is hereby repealed and the said Act as amended hereby and by the 
 ■ Fire Insurance Policy Amendment Act, IKfti," shall come into force on the 1st day 
 of .Tulv, IWNi.") 
 
 SCHEUn.E. 
 
 (Six riKNs :! and (i.) 
 
 STATUTOIiV CONDiriO.VS. 
 
 I. If any person or persons insures his or their buildings or goods aiul causes the 
 same to be described otherwise than as tliey really are. to the i)rejudice of the com- 
 pany, or misrepresents or omits to communicate any circumstance which is material 
 to be made known to the comimny in order to iMiable it to judge of the risk it under- 
 takes, such insurance shall be of no forci in respect to the projicrty in regard to 
 which the niisre|)resentation or omission is nuide. 
 
 i. After application for insurance, it shall be deemed that any policy sent to tlie 
 assured is intended to be in accordance with the terms of the application, unless the 
 company points out in writing the particulars wherein the policy dill'ers from the 
 application. 
 
 ;t. Any change material to the risk, and within the control or knowledge of the 
 a.ssured. shall avoid the ])olicy as to the part aflected thereby, unless the change is 
 promi)tly notified in writing to the company or its local agent; and the comi)any 
 when so notilied may return the premiuni for the unexiiired i)erloi'. and cancel the 
 policy, or may demand in writing an additional prenuum, which the assured shall, 
 if he desires the continuance of the policy, forthwith pay to the company ; and if he 
 neglects to make such payment forthwith after receiving such deman , the policy 
 shall be no longer in force. 
 
 4. If thei)roperty insured is assigned without a written perndssion endorsed 
 hereon by an agent of the company duly authorized for such purpose, the policy 
 shall therel>y beconu' void ; but this condition does not apply to change of title by 
 succession, or by the operation of the law, or by reason of death. 
 
 5. When ])roperty insured is only partially danniged, no abandonment of the 
 same will be allowe<l uidess by the consent of the company or its agent : and in case 
 of the removal of property to escape conflagration, the comi)any will contrilmte to 
 the loss and expenses attending such act of salvage proi)ortionatcly to the respective 
 interests of the company or companies and the assured. 
 
 (I. Money, books of account, securities for money, and evidences of debt or title 
 are not insured. 
 
 m 
 
my 
 
 all. 
 Ill- 
 ulifv 
 
 the 
 
 CllSf 
 
 to 
 •tivf 
 
 title 
 
 BRITISH COLUMBIA ENACTMENTS. 
 
 835 
 
 7. Pliite, plate-Kliiss, plated ware, jewelry, inedaU, piiiiitiiiK^. sculptiireM, ciiriuHi- 
 ties, Ncientilic and iimsicivl iiiHtruiiieiits, l)iillioi», works of jirt, artlrles of virtu, 
 freHcoes, clocks, watches, trinkets, and mirrors are not insured unless mentioned in 
 the imlicy. 
 
 H. The company is not liable for loss if there is any prior insurance in any otlier 
 company, unless the company's assent thereto appears herein or is endorsed iiereoii, 
 nor if any suhsecpient insurance is ellected in any oMier company unless and until 
 the company assents thereto, or unless the company (li "s not dissent in writinvc 
 within two weeks after receiving written noti<'e of the intention or desire to 
 elFect the subsequent insurance, or does not dissent ii'. w-i Jhk after that time and 
 before the subse(|Uent or further insurance is elleeted. 
 
 0. In the event of any other insurance on the pn-perty herein describe<l having 
 Iwen assented to iis atores'iid, then this comjiany shall if such other insurance 
 remains in force, on the happening of any loss or damage, only be liable for the pay- 
 ment of a ratable proportion of such loss or damage without reference to the dales 
 at the diirerent policies. 
 
 10. The company is not liable for the losses following, that is to say :— 
 
 («» For loss of property owned by any other party than the assured, unless the 
 interest of the assured is stated in or ujion the policy. 
 
 (h) For loss caused by invasion, insurrection, riot, civil commotion, military or 
 usurped power. 
 
 (<■> Wherc! the insurance is upon buildings or their contents -for loss cause. i by 
 tilt want of good and substantial brick or stone chimneys, or by ashes or embers 
 being deposited, with the knowledge and consent of the assured, in wooden vessels ; 
 or by stoves or stove-pipes being to the knowledge of the assured in an unsafe con- 
 dition or improperly secured. 
 
 ('/) For loss or damage to goods destroyed or damaged while undergoing any 
 process in or l)y whicli the application of lire heat is necessary. 
 
 (('» For loss or dan\age occurring to buildings or their contents while the build- 
 ings are being repaired by carpenters. Joiners, plasterers or other workmen, and in 
 coiise(|ucnce thereof, unless permission to execute such repairs had l)een previously 
 granted in writing, signed by a duly authorised agent of the company. But in 
 dwelling houses tifteen days are allowed in each year for incidental repairs, withoiit 
 such permission. 
 
 ij) For loss or damage occurring while petroleum, rock, earth or coal oil. cam- 
 pheno, gasoline, burning fluid, benzine, naphtha, or any liquid products thereof, or 
 any of their constittient parts (relined coal oil for lighting purposes oidy, not exceed- 
 ing twenty gallons in quantity, or lubricating oil, not being crude petroleum nor oil 
 of less s])ecitlc gravity than required by law, for illuminating purposes, not exceed- 
 ing twenty gallons in quantity, excejited) or more than twenty-live pounds weight 
 of gunpowder is or are stored or kept in the building insured or containing the 
 property insured, unless iiermission is given in writing by the company. 
 
 U. The company will make good loss caused by the explosion of coal-gas in a 
 building not forming part of gas works, and loss by lire caused by any other ex 
 plosion or by lightning. 
 
 12. Proof of loss must be made by the assured, although the loss be payable to a 
 third party. 
 
 in. Any person entitled to make a claim under this policy is to observe the fol- 
 lowing directions : 
 
 (fi) He is forthwith after loss to give notice in writing to the company. 
 
 (6) He is to deliver as soon afterwards as practicable, as particular an account 
 of the loss a.s the nature of the case permits. 
 
 (c) lie is also to furnish therewith a statutory declaration, declaring : 
 
 (1) That the said account is just and true ; 
 
 (2) When and how the lire originated, so far as the declarant knows or believes ; 
 (Hi That the (ire wa.s not caused through his wilful act or neglect, procurement, 
 
 means or contrivance ; 
 
 ■II 
 
836 
 
 INSURANCE LAW OF CANADA. 
 
 ■f'.i 1 
 
 
 (I) Tlic iiiiiimiit of lit her iiiHUi-aiici's ; 
 
 (5) All liens mid I'litutiibniiiies on llic sijlijcci of iiisiiriiiii'e ; 
 
 <tl» Till' pliici" wlu-re ilu- proixTiy insiiri'd. If iiiovahle, was (lopoHitt'd u> I lie tinu' 
 of I ho lire. 
 
 ill) He is. in siipporl of his <liiiins, if reiiiiired mid if priictieahle, to produce 
 hooks of iiccouiit, Wiirctioiise n'reipis, and stork lists, and furnish invoices and 
 other vouchers, to furiiisli copies of the written part ion of all policies, to separate 
 as far as reasonalily ina.v he the datna'.ced from the nndaniMKed (joods. and to 
 exhibit for examination all that remains of the projiertv which was covered hy the 
 policy. 
 
 if) He is t I produce, if reiiuired, a I'ertitlcate under the hand of a government 
 aK<*"t'i maRistrate, notary 'pulilic. couimissioner for taking allidavits, or municipal 
 clerk, residinn in the vicinity in which the tire haiipeiied, and not concerned in the 
 loss or related to tne assured or HUllerers. statint; that he lias examined the circum- 
 stances at teiidiufi the lire, loss or dama;^e allcficd, that he is acc|naiiited wit li the 
 character and clreuiiistances of the a^-iired or claiiiiaut. and that he \'erily lieiicves 
 that the assurcil has hy misfortune and without fraud or evil practice, sustained 
 loss and damage on the snli.iect assured, to the amount certilied. 
 
 M. The aliove proofs of loss may he made liy the a>;ent of the assured, in ease of 
 tiie alisencc or inahility of the assured himself to make the same, such alisence or 
 inaliiiity lieinn satisfactorily accounted for. 
 
 l.i. .■\ny fraud or false statement in a statutory declaralinu in relation to any of 
 the .ihove particulars shall vitiate the claim. 
 
 1(). If any <liireience .arises as to the value of the properly insured, of the jiro- 
 perty saved, or aniounl of the loss, such value and aniouni and the proportion 
 thereof (if unyl lo In- jiaid liy tlu' coinpauy. shall, \\hellier the ri;.'ht to recover on 
 the policy is disputed or not, and i:idepeii<lently of all other c|uestions, lie suhniitted 
 to the arbitration of some person to be chosen by both parties, or if they cannot 
 ajjree on one person, then to two persons, one to be chosen by the jiarty assured, 
 and the other by the company, and a third to he appointed by the jiersous so chosen, 
 or on their failiujj; to a^rce. then by a judire of the Supreme Court of IJrilish 
 Columbia, or tin' county .iudjje of the county wherein the loss has happened : and 
 such reference shall lie subject to tin |)rovisi(ins of the laws aiipliciblo to references 
 in actions: and the award shall, if the company is in other respects liable, be con- 
 clusive as to the amount of the loss and pi-op(!rtioii to be paid by the company ; 
 wlieri! the full aniounl of the claim is awarded the costs shall follow the e\eiit ; and 
 in other cases, all ([uesticuis of costs shall be in the discretion of the arbitrators. 
 
 17. The loss sliall not be payable until thirty days after coiniiletion of the iiroofs 
 of loss, unless otherwise provided tor by the contract of insurance. 
 
 l.s. The company, instead of inakinji- payment, may rejiair, rebuild or rejilace, 
 within a reasonable time, the proiierty damaged or lost Lrivin^f notice of their 
 intention witliin tifleen days after the receipt of the proofs herein reijuircd. 
 
 IP. The insurance may be terminated by the company by i.civin,ir written notice 
 to that e/l'ect, and, if on the cash plan. In tendering therewith a liitable proportion 
 of the preiniuin for the unexpired term, calculated from the termination of the 
 notice ; live days' personal service of the notice, ex.-ludinK Sunday, shall be niven. 
 And the jiolicy shall cease after such tender and notice aforesaid, and the expiry of 
 the live days. 
 
 ill) The insurance, if for cash, may also be terminated by the assured by n'vinK 
 written notice to that ellect to the company, or its authorized a^ent, in which case 
 the company may retain tlie ciistoinai'y short, rate for the time the insurance has 
 been in force, and shall repay to the assured the balance of the premium paid. 
 
 20. No condition of the policy, either in whole or in part, shall be deemed to 
 have been waived liy the company, unless the waiver is clearly expressed in writ- 
 ing, signed by an agent of the company. 
 
 21. Any officer or a^ent of the company, who assum»!s on behalf of the company 
 
^ 
 
 KULES AND REaULATI0N3, ETC. 
 
 837 
 
 to enter into luiv wriltcii ii^reeiin-iit rt'latiniit lo any matter coiinecled with the 
 iii.siiriince. hIihII Im' ileeiiied priiiiii t'lirit lo lie the iiKeiit of tlie eanip.iiiy for the 
 imrpo.se. 
 
 -^. Kvery aeliiui or iiriM'eeiUiiK UKiiinst tlie eoiiipany for the recovery of any 
 (l«iiii uiuier or hy virtue of tlii> polity, chilli he iilisolutely liarred. iiiilo>*s coin- 
 iiieiicBd within the term of one year next after tin? loss or duiniiK*' oecurs. 
 
 it. Any written notiee to ii company for any pnrp<ise of thi' statutory conditions, 
 when the mode thereof is not expressly provided, may he hy letter deliwred at the 
 head olliii> of the eomp.iii\ in llrit ish t'olnmhii, or hy resist ere( I posi letter addressed 
 lo the lompaiiy, its manager or accent, at such head ollliee, oi' hy such written 
 notiee ^iven in any otiu'r manner to an authorized aKent of the eompany. 
 
 The AniendintJ Act, ."iS Vic, cap. lili, as amended hy .'lil \'ic.. cap. 20, cnntaiiis the 
 followiii'/ aitilit ional seetion : 
 
 4. Where the loss (if aiiy> under any policy has, with the consent of the com- 
 jiany. heen made payahle to sonn- person or persons or company otlier than tin- 
 assured as inortKaKee or inortnanees, said policv shall not he eancelled, altered, or 
 otlnTwise dealt with hy the company upon the aj)j>lication of the iissureil, and in 
 any ease not williout reasonahie notice to the said iiiort);a'.ree or niorliiatfees, 
 
 (f/l In cases where the loss undei' .my poliiy is with the lonsenl ot the company 
 niade payahle to a niorlifairee or mortiiafiees, proof of loss undiT any such policy 
 nuiy he made hy such morlffatfee or moi'tgajiees. 
 
 L'CS 
 
 )n- 
 
 IV ; 
 d 
 
 ee, 
 ;'ir 
 
 rof 
 
 lo 
 rit- 
 
 ny 
 
 KrLH.s AND i{K(;ri<.\Ti()\s i{i:(JAi{r)iN«; tiih acckptaxck 
 
 OF SKCTRITIKS OKKKIIKl) F()l{ DKPoSIT liV iN.^l'lf 
 AN<'K COMI'AXIK.S. kr.. &c. 
 
 The followiiif;' extracts from Orders in t'onncil, .Minutes ol ilie Treasury Hoard, 
 &c. (almost all of which have heen previously puhlished) are collected for conveni- 
 ence of reference : ' 
 
 Mmiiii/iiil Si i-iiriliis. "The lioanl I'c onimen<l Ih.il iriiiiiicipal hontls. uheii 
 accepted, may Ih- taken at '.Kl perci'nt.; and that Montreal ll.iiiiour iionds lie placei' 
 on the same footing."' H). C. 1st .Vpril. l.sTd.l 
 
 I'd rtii nliirs nf Srvn ril its tiffiriil lor Ihpoxil. "All applications for ihc ai ccpt 
 ance of houds or dehentures. whether as original deposits or in exchan;re for securi- 
 ties which the applicants desire to have rclca--ed. nmsl he ;iccompaiiied hy n state- 
 ment Liiviiin full particulars of the securities oll'eii'd for acceptance under the 
 following headintrs, viz. : - 
 
 "Date, date of maturity, place of payment of principal, rale of inverest, how 
 payahle, »'.('., yearly or lialf-vearly, date and place of p.iyment ot interest, market 
 value at time of ap|)licalion for acceiUance, and, if not ipioted in the market, the 
 price at whicli purchased hy the company and dale of such iiurchase. 
 
 '■ .\lso, as renards nniniciiialities whose l)onds or dehentures are ollered : 
 
 "The iiopulat i(Ui, assesseil value, rate of laxalion. .isseis, total deheniure in- 
 dehtedness, and all other liahilities, ineonie and expenditure for the last liscal year. 
 
 ' Report of Superinti-nflent ef Iiiiiuriincc fer 18!'6, piiiie 'J4. 
 
838 
 
 INSURANCE LAW OP CANADA. 
 
 iind any other (ieliiils in the possession of the company whidi would lie of assistance 
 in determining; the value of tiie securities otl'ered for acceptance. 
 
 "Tlie Hoard desire to be in possession of all possilile information in relation to 
 such securities in order that they may he in a position to fjive the matter proper con- 
 sideration." (T. U., Nov. il, 1S,SS.) 
 
 Railway lh;heiifuren.-'"V\w Hoard are of opinion that they cannot accept as a 
 deposit, the bonds of any railway company, unless giniranteed directly or indirectly 
 by liie (Canadian llovernmenl.' ( T. H., Oct. 27, lH!h».) 
 
 1,0(111 Cotnpanii's' Uotitls. — " Tl,e Hoard had under consideration a memorandum 
 from the Superintendent of Insurance with reference to the application of the Lr^nd 
 .Mortj;a>j;e Compiinie,,' Association of the province of Ontario to have the debentures 
 of loan companies accepted by the tiover-.iient as deposits on behalf of insuraiu'c 
 companies, in wliicli he reports that the said Association is composed of incorporated 
 loan companies or societies aulhori/ed to lend money on real estate in tin; province 
 of Ontario, and all such comi)anies or societies are eligible for membership uiwn 
 payment of certain fees ; that the loan conii)anies whi<'li compose the said Associa- 
 tion may be divided into the followinji elas.ses : 
 
 I. (.Jompanies incorporated under the provisions of the Statute of the province 
 of Canada, !) Victoria, cap. iK), consolidated in chapter ~i.\ of the Consolidated Statutes 
 of I'pper Canada, now included in chapter Hi!) of the last Hevised Statutes of On- 
 tario (18S7), and commonly known as the Unildinjj; Societies' .\ct. 
 
 II. Coinpanii's incorporated under the "Canada .loint Stock Companies' Act, 
 1S,S7,"' now known as the "Compaides' .\ct," beiufj; chai)tci' 1U> of th" Hevised 
 Statutes of Canada (ISSli). 
 
 HI. Companies incorixir-ated umler special Acts of the Lejiislat-nre of the pro- 
 vince of Canada or of the I'arliament of the Dominion of Canada. 
 
 I\'. Companies im'oiporated under the "Ontario .loint Stock Companies' Letters 
 I 'at cut .\cl, IS71," bciiiLt iliapter 151) of the former and cha|)tei' I.")7 of the last Hevised 
 .Statutes of Ontario. 
 
 \'. Companies incorporated under the KnuUsh Companies' Act, and licensed to 
 transact business in Canada under :f7 Victoria, chapter 1!), beinn cliapter 12."> of the 
 Hevised Statutes of Cainida. 
 
 'I'he Hoaril, after careful consideration of the report of the Superintendent of 
 Insurance as to the class of sejurities upon which the above companies can invest 
 llii'ir funds, and as to the borrowiiijj; iwwers of the said compaides, direct that the 
 debentures and debenture stock of such companies, belonninjjc to the said associa- 
 tion, as meet the re(iuiremcnts bereiinifler set forth, may be accepted as deposits on 
 behalf of insuraine companies, at such rate as the 'I'reasiiry Hoard may see lit to 
 plaii' u|)on them, i'.,.,, biiwever, to exceed the valiU' usually placed \ipon municipal 
 securities, viz., i)0 per ',\'nt. of the par value thereof when the market value is at 
 lea^t ei|ual to such par value, or !H) per cent, of the market value, when the market 
 value is less than the par vabie. 
 
 The rei|uirements above referred to are as follows :— 
 
 1. The company shall lave kept strictly within the jiowers in relation to borrow- 
 itiK and investment c, interred ujion it by the .Vet under which it is incorporated. 
 
 1. It shall have a paid-up capital of at least .•S.'iOO.Dlll), 
 
 ;i. It shall hive been In successful opeiiilion as a loan company for iml less than 
 ten years, 
 
 4. It shall have V reserve fund anionntinti to not less than 2.") per cent, of its 
 paid-up capital. 
 
 ■). Its stock shall have a market value of not less than par. 
 
 The Hoard also direct that every applicatimi on behalf of an in.surancp con\pany 
 forthe acceptance of any smdi debenture or debenture stock as herein above pro- 
 vided, shall form the subject of it s|)ecial reference to the Treasury Hoaril, and Ihiit 
 the company shall supjily, forthe information of the Hoard, all necessary particu- 
 lars, including iv statement of the borrowinn powers dud powers of investment of 
 
RULES AND REGULATIONS, ETC 
 
 839 
 
 the loiiti coinimny whose seciir.lii's iire oH't'rod as a deposit, and a statcnu'iit showiiiK 
 in detail tlu- nature of tlit^ Investments of such loan eonipany, all properly veri lied. 
 (T. 13., l(!lb <^' 'toiler, IWMO. 
 
 .V(» nssitniiife of (irrfptiince of lioiuts hi/ Ihc Tritisiii-ii Hoard. — " The Superin- 
 tendent asks tlie decision of the Board upon the following ((ueskion, viz. : 
 
 ■ Will the Hoard inform a conipany desirous of purehasinw eertain bonds or secu- 
 rities whether they will he acceptetl or not as adeposit in the event of their hein^ 
 
 purchased '.' 
 
 ,» ^t * * * 
 
 " Tlu! Hoard, after delilierai ion, are of opinion that they cannot nive any assur- 
 ance to any company tliat securities will or will not he accepte<l in the event of their 
 hcluK purchased." (T. H., 1st April, ISS!)). 
 
 Dr/iosil A'ccc/yj/.s. -" 'I'he Hoard direct that- deposit receipts he not accepted in 
 any case as a deposit on lieh.il!' of any company." (T. H.. 2.">th .lanuary, IHSS). 
 
 /{ini/,- Stoi/,-, A'c.—" litiwk slock or shares in any private conip!,'>y will init he 
 accepted." (O. C, 17th .lanuary, ISTd). 
 
 Jiii/islciril lionil.1 IIS yVyjo.si^s.-When registered bonds ,ire received as deposits 
 they must be registered in the name of t!ie Heeeiver (ieneral. Honds registered in 
 the name of a co>ni)any, accompanieil by an assigmnent in favour of the Ifeceiver 
 (ieneral, will not be ac'cepted. When registered bonds are intended to be \iseil as a 
 deiMisit, they sl'.mld, before being forwarded to this department, be registered thus 
 ■in the iianu' of "the Ueeeiver (ieneral of ('anada in trust Uir [iiiiiiu/ l/if niinii nt' 
 t/if i-oiii/i<iii!/\. being part of tin" deposit made by the company with said lU'ceiver 
 (ieneral in pursuance of the statutes of t'aiuvda in that behalf.'' ( T. H,, i:tth -Inly, ISitl). 
 
 i'ori'ijiii Mii.iiiripri/ Scniritirn. — ''Thv Hoard arc of opiidon that no municipal 
 securities other than Canadian should be accepted for deposit under the Insurance 
 Act." (T. H., i:tih .lanuary, IWtl). 
 
 Undortho lieiidiiKrlof " liOsSES OirrsTANDiND," the Suporintonilont of Iiisurancn has iniuio soino 
 cornniuiil (l{eiii)rl lor lH!t2) for llio inldnii.itiiiii (if iIkisd otiic(^r.« of lioonsbd ouiuiiaiiiux wliipso iluty it 
 is til pi'Ui'aru tlu' iininiiil stiileinonlf liir liin ili'iiartiiicnl. Obscrvaliciii liiiw iinivoil, he status, Ihal 
 the rc'iuireiiiuMls nf dm Insiiranco Act iro iml fully HMdcrstmid, or it niidcrstooil, arc disriwinlod, 
 and as II I'linsc'iiucnce, lliu statutury rotiirns an' treiiiU'iitly Vimiid tn bo inacisurate. anil iierljiiii.i in 
 nil iiarticular arc there itreali'i' inaii'iiracies than arr (o lio fmind ruKardiiiK the hisses imtslniidinK 
 at llifi cliiso of ilif ct.riunuiii's' year. Tlio iiiiicouracion are |irinui|ially ol tno kinds, lirslly, ulaims 
 for losses wliidh liiivd m^curriid hcl'oro the clos ' Ihi' year, and whirli should have bi'on reported 
 are tr(ii(uenlly omitted from the KlaliMuoni altoKCllior, and .suoli reasons as the followiiiK an; asiKned 
 forsucli omission, viz.. that suoli I'sses wrre not reported to the eompaiiy until altor the close of the 
 year, orlhal altlioii(?li they were retiortcMl and elaiins nnide tlicret'or, siieli claims wore not looked 
 upon lis valid claims, were not rccoKuized or I'dinilti'd as lialiillties, and were llierelore disreKiirded 
 in the coiniianies' statement. Such reasons are wholly iiisultlciont. The mere h.,;t that a loss had 
 not been reported, or was not known to a company at llio close of till' year, but which loss at the 
 time Ihc statement was prcfiarcd and sent to the leparliiient was known to have existnd at such 
 close, ulTonls but ii poor excuse lor asscrtinK that il did not exist. Au'iiin, 11 is not permissible for a 
 conipiiny to di-rcuard a oliiiii I'or a loss, upon llieu'ronnd that the company looked upon the claim 
 as invalid. The statute in Silicdulu A doliiics Ihc liabilities of a life coiiuiany, which are to be 
 reported, and lunoiiKSt them are included "Olaiins lor iloalli losse- and matured endowments and 
 annuity claims ihic and unpaid or in process of ailiiislmeni, or adjusted hut nol duv, "r rmiah-il." 
 In like nnumor schedulb Ii, includes iimotiK tlic liabilities of a tiro company which are to hu 
 reported, " Amount of claims lor losses rrnixird by the company, distinKiiisliinn those in suit," the 
 plain nieaniUB of which is, that every claim for a loss should be reported, even thoui,'h the campany 
 may have a gooil leijal defence to an action therefor. To adopt any other course would in elfect 
 constitute the ollioors of the companies' .iuducs and enable them by denyinK liability for all existinR 
 claims. Ill present a report sbowiuK no oulslandiiur losses, and that at a time when every claim 
 mifibt prove valid, notwilhstandiiiK the companies' denial of such validity. 
 
 Scoondly, claims for losses which should lie reported as'rosigted, in suit, or resisted, not in suit' 
 are nut infreipienlly reported as unadjusted but not r slated. A plausible explanation of such an 
 inaccuracy IS rarely found, but one sometimes olTcrod is, that at the close of the year the company 
 had not deoidod tu resist the claim. Such an excuse is wholly inadeipiate. The statute allows two 
 months within which to obtain full and nocurate information reiiarding suoh matters. 
 
 i^ 1 
 
AISALYTIOAL A^^D ALPHABET] CAl. TABLE. 
 
 I'ar, I'lim' 
 
 Abandonment, c. c. L. c TM 
 
 Of pi'i'tiiises I'fliovos coinpany. , .-Utt ml 
 Absence, pru.suiuption of death 
 
 from If.Xr? 57(> 
 
 Acceptance of note aw cusli for pro- 
 
 iniuiiHand soc Promiiini note*.. 74 101 
 Accident, lo^al presuinptiun is 
 
 .•igaiii.st intentional in.jiirv . . .IWio 5Si) 
 
 What it inclndeH, Onl. Ins. Act 782 
 
 Suicide or intentional injury. .. .:{<i5 .TM!) 
 
 do ■ :«ii) m) 
 
 do .mi ."iill 
 
 Accidental death (see Snicidel. 
 Condition ass to direct and positive 
 
 proof :«(5 nm 
 
 do 591 
 
 Construction of " occupation ".. .;{t»5 5H9 
 Dcatli by external, violent and aitci- 
 
 dental means IKm ")S,") 
 
 Deatli in violation of law ."Kio iVii 
 
 " Disahility," construed 'MH 5112 
 
 Excluding" " injury from disease, 
 
 etc." '. :i<i5 .")KS 
 
 Old age as a cause of disability. ."(1)5 .")il2 
 Pleas of voluntary exposnre'lo un- 
 necessary danger ;i()5 584 
 
 Proximate or sole cause IKio 58(i 
 
 Voluntary exposure, driving on 
 
 tracks in station yard :H(t5 583 
 
 "Any one accident" and "from (such 
 
 a date)" construed :ll>5 'M 
 
 Xolice of, (see Proofs of loss.i 
 
 'rickets, insurance by ltd 171 
 
 Hy ilaily newspaper coni])any. :i(i5 5ilH 
 
 By inliii'it ' .:t(i5 5!i:i 
 
 Kmployeis" liability :W)5 .">|l:t 
 
 Aci'idi"it insurance companies, capi 
 
 tal slock of, Ojit. In.s. Act 742 
 
 "Account," what it includes. Out, 
 
 Iji . Act 741 
 
 Actions, by and against insurance 
 
 comiianles ;W) (152 
 
 Defences, purely technical, not 
 
 favored by ccnnts , ,;\^', (i.-)2 
 
 Kvidence as' to origin of (ire, whei'e 
 
 no plea of arson ;\H~ (l.")ll 
 
 In .is-iigiu'c's Tuiine ;iitl ri(i2 
 
 My contractor :!t)4 ()(!2 
 
 Hv warehousemen in their own 
 
 'names :«»4 (H12 
 
 ICvideiH'e of breach of warranty as 
 
 to odier insurance 1105 (K!5 
 
 far. l'ii(/i> 
 Kvidence ollered. reasons nnist be 
 
 given in court l)elow :i87 t).")(i 
 
 Kvidence sni)porting contentions i I' 
 
 both parties :«)5 (HMi 
 
 Evidence to show mistake as to 
 
 day of nniturity of policy lilir) (i(i5 
 
 I3y foreign eomiiany cannot be main- 
 tained if Htat\ites have not been 
 
 complied with 417 <>>!) 
 
 By receiver for assessments ... ,421 '.!!):i 
 In accident insurance, clause as to 
 
 commencement of 1(77 (i25 
 
 In warranty by insurer againsi 
 
 wrong-doer causing loss ;(5:i i\C),^ 
 
 May be brought at once, where lia- 
 
 l)ility is absolutely denied... U)8 178 
 (And .see Limitation.) 
 l''or first prendnm, maintainable. 1()."> 175 
 
 On premium note 811 Kill 
 
 do Out. Ins. Act . 77(> 
 
 Time within which it must be 
 
 brought M):i 071 
 
 (And see liimitation.) 
 
 Where it may be brought H8I) <i5l 
 
 Where coinpany may be sum 
 
 mcaied in (Quebec :W1 (1.55 
 
 Where served ;Wi (r>li 
 
 American decisions on place of ac 
 
 lion :f8l) 1155 
 
 Application must be set out as jiart 
 
 of contract :ii'5 Ikili 
 
 Against lienelieitry of life policy, 
 
 bniden of iiroof as to forfeiture of 
 
 liolic; 
 
 :t!l5 
 
 Consolidation of :i!Nl 
 
 do :«ii 
 
 do Out, Ins. .Vit 
 
 (."see also .Toint Aclioii,) 
 
 Insiinity of assuri'd when making 
 application :!!'5 
 
 Measure of damages in lifi assur- 
 ance :«il 
 
 No actiiin can lie mainlainid after 
 accepting payment I'orloss. ..;)!) I 
 
 On lire iiisuranee policies, lules (if 
 evidence in l'. S :t!)l 
 
 On life insurance policies, niles of 
 evidi'iici' in I ', .S :t!)l 
 
 Plea of " mill i-sl I'drlinii" M8!l 
 
 Power of court lo set a^iile ver- 
 dict ;i88 
 
 Ouestions for the court and .inr.i :(i)l 
 
 (.Questions for the .jury in life a!sni_ 
 
 rtiiee :tli5 
 
 li(i5 
 Ii."i8 
 11112 
 778 
 
 lUill 
 li.i!) 
 
 i;i;:( 
 
 lilUI 
 
 iiiil 
 
 1)58 
 
 li.'iii 
 i;ii:i 
 
 litii) 
 
842 
 
 INSURANCiS LAW OF CANADA. 
 
 IK V 
 
 I'iir. Page 
 
 WageriiiK jiolicv, testimony of 
 
 fiKi'iit a<)5 (HJ4 
 
 (Sec iilsd Wiiut'i' or (iaining poli- 
 cies, d'oditor. ) 
 WluMi iiKjrtnii'jtff may sue iiloTie. H!14 (i()2 
 Wlii'ic iiiftiiils an- ciitilUMl to iiisnr- 
 
 aiR'c iiioiicN. Out. Ins. Ac 77H 
 
 I.iinilatioii oi' ( »iil . Ins. Act 77it 
 
 ilo Out. slat, coiid "(Kl 
 
 <lo li.C. do KJ7 
 
 do ' Man. do S25 
 
 (And sec liiinitation). 
 
 " Actuarial liabilities and 
 
 solvency," mcaiiinK of term. 
 Out. liiK. Act 711 
 
 Additional insurance, .u'cmiai 
 
 I'cmarUs on '. . . . I'S'.l 4;V( 
 
 liCKislalion coiiccniinj; lilNI l.")7 
 
 I'l-acliccof com|)aiiicscoMcci'nin(f.'JiHI |.")7 
 .Adinissiofi in declaration of loss 
 lield not sulIiciiMil jiroof of viola 
 
 lion of condition against :JS!) |.")7 
 
 Compound and spccilic policies. 
 lioutiiiK policies, limitation of lia 
 
 Inlily ;t(l:i J74 
 
 Coiicealmcnl of 27!) I(»4 
 
 l'"alse representation as to other in- 
 surance, refund of insiir.ance 
 inoni'V undei' threats of criminal 
 
 prosecution 2!tS Mi!) 
 
 Condition as 10, onl.v applies when' 
 the same |)ro)ierly and same in 
 
 leresls are invohcil :).");) ."iliil 
 
 Condition of average, concurrent in- 
 surance, coinsurance clause 'Jltl l.")7 
 (See Concurrent, Douhle ins.) 
 Kxpiiy of additional insurance in a 
 
 few days iloes not excuse ii . .2S!( l.")7 
 (ioods in waiehouse, suhsci|Uenl 
 marine insurance not held cover- 
 in;.' same risk L'lltl 170 
 
 In ahsenci' of stipu la I ion, no duly on 
 
 insured lo refer to it '.:iS!l lati 
 
 Contra under ,'^lat. Con :iiil) 157 
 
 Not ice of. wilhout oii.jcclion. ci|ni\a- 
 
 lent lo consent 2S! I !.">() 
 
 'io lilNl |.-(7 
 
 Sudicienl notice and defective no 
 lice :;!):{ Kid 
 
 Necessily of conselll liiKt ItCi 
 
 Vcrlial notice lo anient not sulli- 
 cient liil.") Ilili 
 
 No power in aiiciil lo waive not ice::i!l:t Hi'.' 
 
 Siihsljlul iim of amil her (lolicy with- 
 out incrcasiim amount , Unowlediie 
 of au'eni acting for all companies 
 inleicsted lilKi I(i7 
 
 Supreme Court ch'clareh over-insiii-- 
 ance musi he stopped •2f<U |.")ti 
 
 Owneis of dilt'erent interests in 
 ,saine properly may insure ... liXII liV) 
 
 Two policies each si iimlal injr a.cainst 
 1)1 her insurance l'S!» lali 
 
 Cnder slatutorv condition it iiuisl 
 l)e ileclarcd . . " 2iM) ■l.")7 
 
 \'oidalile policy miiv be invoked iis 
 hreai'li of con'dil ioi'i 2W» 15(1 
 
 \'(>idiil)le l)ul not void ovvinit to sliiil- 
 liir condition awiinst double insur- 
 ance, etc LtHl UW 
 
 do •Jil7 HW 
 
 Par. PagL- 
 
 Waiver of notice l)y insurer 2it;t l(i2 
 
 Where no policy" has been issued, 
 but conditio!! has been referred to 
 
 in interim receipt 295 Kit) 
 
 1 William IV., c. :i:! sec. 2:1 does .lol 
 iipply to insurance on jjoods. . . .2S!» 157 
 
 Without notice 271ft 101 
 
 Ktl'ected by and in favor of third 
 
 parlies 2i)l 1()5 
 
 Hy mortHiiKc creditor 2itl, Ki5 
 
 In mutual eonipany, by mortj.;ai.co 
 
 cl-eililor .." :i;V( 5:i5 
 
 I''ailure of agents to cancel as 
 
 instructed by comi)any :«)(( 472 
 
 \arious Ameiii'an decisions as to 
 insurance by inort^^aKOi', kno\i- 
 ledgt' of agents oi- company, in- 
 crease of risk, waived :t(ll 473 
 
 .Mr. Hodjicrs' article in Central haw 
 Journal :«l(l 472 
 
 Adjuster, false statements to (see 
 I'taiidulcut Claims). 
 I'uwer to waive (see Arbitration), 
 \\'!iiver l)y (set' I'roofs of l,ossl. 
 
 Admissibility of evidence 
 
 (see .-Vet ions). 
 
 Ag'e, crn 
 
 slat ion re.irardini^.. 
 
 2()S 
 
 ICrror in. Out. Ins. .Act 
 
 MisslalenienI of, under the Ins. 
 
 .Vet of Canada 
 
 .Xijc and condil ion of heall h. declara- 
 
 tion of, C. C. 1,. C 
 
 (.See also Warranties). 
 
 Agents, t heir ))0\\ ers and dut ies. .:)22 
 
 Inlerprelation of leiDi, Ins. .\ct. 
 of ( 'an 
 
 Dislinclion between poweis of niMi 
 eral and sp<'cial a.LCent :!22 
 
 In case of nmlual (■om|)anies have 
 less discretionary (lowers Ihaii in 
 slocU eoni|)anies ;t22 
 
 (ieneral aKcnts in ('anaia may aj) 
 |)oint local agents lo sign interim 
 receii)ts. etc. o22 
 
 Large powers in I', ."s :i22 
 
 truest ion of his remoteness all'ecling 
 his aulhorily :122 
 
 I'owers of secretary in Canada of 
 forei.Lcn company SO" 
 
 Noticeable tendency to extend 
 rather than i-estricl powers of 
 agents 1122 
 
 Iteceiil r. S. decisions upon 'XH\ 
 
 .Stat. Con. that ageni is presumed 
 authorised loacl for company . .:I22 
 
 Taking premiuui nole. held reason- 
 able presumption )ie had atitlioiil v 
 lo lake it :i22 
 
 Should receive monev oidy in i)av- 
 inenl " ;I2H 
 
 lOlI'ecl of crediting agent witli an nn 
 paid premium, and of agent issu- 
 ing receipt witliout receiving 
 money ;i22 
 
 .\nl liority of 47(» 
 
 do . . ! 47f' 
 
 do. ...■ 47f/ 
 
 Mind the company In all acts wiHiin 
 
 7(Mi 
 7:tO 
 
 lit:t 
 (!!)5 
 
 kh; 
 
 IHtl 
 
 4!M 
 l!)3 
 
 4! 15 
 
 157 
 
 4!Mi 
 517 
 
 l!)» 
 
 .-)()1 
 514 
 
 I! 14 
 77 
 70 
 7tt 
 
 M - 
 
M. 
 
 .. 77!> 
 
 IS. 
 
 . . 7(M> 
 
 ra- 
 
 
 
 
 ■1 vx, 
 ( 
 
 I l.")7 
 
 if 
 
 (I 
 
 ■>■! liW 
 II- 
 Iv 
 .-,(11 
 
 ;;s r>i4 
 
 •> 
 
 4114 
 
 rr 
 
 77 
 
 r 
 
 7il 
 
 ,1 
 
 7!l 
 
 11 
 
 
 ANALYTICAL AND ALPHABETICAL TABLE. 
 
 843 
 
 Pill'. I'UliP 
 
 sc'ciiH' <(! Imsiiu'ss ill jibsoiice of 
 notice of liiiiltfitioii M22 4!Mi 
 
 His liiiowlediie i.s tliiil of coiii- 
 
 piiiiy :tL':i ISM 
 
 rlo IT. !?. (U'clsions 'SM)a 'yJ.0 
 
 Kiiowlcilgi' of. II (iiiestion for tlie 
 
 .l>ii\ 
 
 :(!)4 tm 
 
 Kiiiiwlfiim' of lomii.iiiv lii'ld ill I'.S. 
 
 not to estop tlii'iii ." ;i:i2 I9.S 
 
 Knowledfie of varaiicy liS") |;tt 
 
 His kiKiwieiijie (pf insured's |)liysi( al 
 
 inliriiiily lield l>indin^ on eoiii- 
 
 paiiy -W .■)17 
 
 Kiiowled^io of, caniuit destroy war- 
 
 raiily ' .-IXiti VIS 
 
 (And see Wariaiilies. i 
 
 His l^iiowledfje of insolveiiey invoiced 
 
 to ieco\('r pieiiiiimis paid 'X'AU) "dJ 
 
 Staleiueni of, as to vaeainy liefoie 
 
 policy issiii's, .1 waiver. -iM M'l 
 
 (And sei- Waiiant ies.) 
 Coiiditioii lliat a^ent lillinj;; applica- 
 tion is auceiit for insured. :;.■)() ;t,")7 
 
 do ■ -2^2(1 \t2 
 
 do :t:i2 KM 
 
 do :fJ:i 4!I7 
 
 do -.VSA r.(i:{ 
 
 do :tit .■'>(iii 
 
 Stipulation on ordinary policies that 
 
 a;i'ent ads for insured, iield liindiii);: 
 
 on insured under liindin.u,' slip. 1 ISn l.'^l 
 liecont r. S. ilecislous ,is lo whether 
 
 person procurinic application is 
 
 ufieiit of iiisnre<l or company .'■i2'2 liHI 
 Provisions in ipoliry as to notice of 
 
 limitation of a^icMil's pouer- . .'.itl I'.Ni 
 Stipulation thai aijeni cannot waive 
 
 ciiiidilioiis as applietl lo nut ice of 
 
 loss :;(i,s (i(i4 
 
 Iiiiplieil power to tin ill lilanks ^If^ir |:tl 
 
 I'illin;:; np apiilieat ion, :(is Til I 
 
 'reslilyiuK ,is to extent of his 
 
 poxvers ;t!l4 (kil 
 
 Makiiiii' out aiiplicalion, not reco>; 
 
 iiized au'ent of the company . . .'.'dl lltS 
 Acliiij/ for Uolli insurer .iiid in 
 
 siireil :i'J2 ."itHI 
 
 Kdecl of errors, misdescripl ion and 
 
 concealment on jiart of a).;ciils in 
 
 tlllintr ii|> .-ipplicalions, etc., ellect 
 
 of \vron,u instruct ions loa.irent ;tJ.'t ."ilt 
 Making uronji iliapr.im, etc llSi 'M 
 
 Mistake in descriplioii of liuildinn'. 
 
 :»l| lUUI 
 Mislake as 'o articles covered liv 
 
 risk ,s;( pMi 
 
 Mi' reiireseiilalio.i as to paid up 
 
 ealiilal |J| (iii;i 
 
 Misilcscriptiou liy. insured must 
 
 evamine application and police ..'yi S,s 
 Misdescription liy him in policy, pre- 
 
 snme(l laull of company ,. i;71r( ;t!)7 
 Insertion of false answer li\ anent. 
 
 ellect of ■, . '.2H\r 130 
 
 False answers inst rted iind fitiiidu- 
 
 leiit or erroneous slatenienis made 
 
 l»y aKCtils, r. S. decisions . ;t;!(l(/ r-i-'l 
 Apiilieanl not reading \> hat he 
 
 siniiH H-J2 HIS 
 
 Parol contriicl made In ;i:i7 ."ill 
 
 >lo ■ 47r 70 
 
 I'iir. l\iu<: 
 
 Contract chaiin-ed liy tiarol state- 
 ments of ap'iits Itilki 5UI 
 
 Proof liy parol that ajjent maile mi.s- 
 takes or misieprcsenlat ions itJi; I!l7 
 
 Statements of. made .-ifter insuring;. 
 
 :«i.'i (Ki."> 
 
 Kvideiice of acts and dedaiations 
 of ;(!t."i li<i."» 
 
 Power to w.iivc lorfeitnre I7'( 7H 
 
 Power of general a;ient to waive 
 conilitions, ,iltliou)ili it is stipn 
 laled no .■ifjent can waive them. 
 
 ;i;«i(( .'lis 
 
 No waiverof condil i<iu unless sinned 
 hyaKcnl ■^-■^ l!« 
 
 Clause ill a]ipllcation iliat agents 
 cannot varv conditions, etc., 
 considered..'. :t21 .j(i,S 
 
 C. S. decisions on waiver liy. . . .:i:!l)'( ."dS 
 
 Cannot delcnale his authority... '.VS'l .'itll 
 
 Power to eniplov clerks, etc ;i-- "itKI 
 
 do :«!'• 'd-l 
 
 "lerk Kivinjf receipt for premium 
 
 •.\-2-2 I1I.-1 
 
 liiiikcr actin.ii' for afieiit and issniiiu; 
 interim receipt ^1— !"••."> 
 
 Broker's knouled.tre not communi- 
 cated 1(1 his principal the insured, 
 and concealed from insurer ...i'^:! I'JH 
 
 (ieneral agent no powciMo dclcj.ate 
 his functions, iuierim receipl is 
 sued liy solicit inn .ijicnt not liiiul- 
 ill).;'. ai;eiil no power of w.iivi'r ■i\i\ ."itW 
 
 Proof of loss nia_\ lie made liy. Onl. 
 
 Sl;u. Coil ' ' . . . 7i)2 
 
 do B.C. Stat Colld_ K«> 
 
 Local, niav receive proofs of loss. .;i7ii ii<t!t 
 
 Notice of loss to ■'>•!.: I!l-"i 
 
 do :f2s .'•ill 
 
 do mil •"i>'.i 
 
 His powers as lo proofs of loss. CS. 
 d( cisions ..'i:!!!.' 'fl'\ 
 
 (See Proofs <lf loss.) 
 
 Notice of cancellation of liindinu 
 slip lo l.idker for insiii-ed hcM 
 sullicieni 1 1"'" h^l 
 
 I'o \er <if. to accept iiolici nf r-iu 
 cellalion ■^■'<^' ■>\' 
 
 .Vcceplin^!,- uolc for premium ma.\ 
 sue on il in his o\\ II name S!l liil 
 
 .\ctii|M on erroneous telegram, lull 
 his acts held to Wind con;iiaii.\ . 
 as within scope of his employ 
 ineiii . •>-•> "i"7 
 
 Cannol ellect iuNnrance in his own 
 faMir ;f:ili "ill 
 
 Cannol waive forfeiture owing to 
 prciniuin not paid. 'l-- li'-') 
 
 (.\nd see Prcminn, Note. I 
 
 Petaining preuiiuin. waiver li\ i^lu ".'."i."! 
 
 Cannol waive pniduction ol inag'is 
 tiate's cert llicale M'J. (>1 1 
 
 -Vclin.u for un.uilhori/ed foreign 
 company, personally liahle . . ;i:i(l ."il" 
 
 (.\ lid see ("eli i licit c. Proofs of loss. I 
 
 .Assent lo assigiiincnt. . .'(.s ."il 1 
 
 (Anil see Transfer.) 
 
 •• ,\llornevs " in I.lovd's Policv held 
 to incaii " .\geiils'" '. '.i'SJ. ."i(Kt 
 
 Consent to renewal, after know led)j;e 
 of iiiisdeserl|)tioii 272o iltlH 
 
844 
 
 INSUR\NCE LAW OF CANADA. 
 
 Par. Piif/i' 
 
 CnNtoin of, totrivc cacli otliiT crcrlit 
 for prcniiiiiiis for rciiisuriiiu'cs. :i27 ")11 
 
 Directory provisions in cliiirtor <lo 
 not aUt'ft pi'rsons dcalinp: witli 
 the I'oinpiiny :i:iL' ."KM) 
 
 Kir.'Ct of oni|Uirv into iipplicMnt's 
 liiil)ils, etc -ISlh, 441 
 
 liiablo lo fonipiuiy for fiiilnri'. to 
 piincel as instnicti'il '.KM) 517 
 
 l.iiil)ility of liis l)on(lsini>ti IWl 5i5 
 
 Ovi'rrt'ihiltanci' i)y, applied 'ly court 
 on la|)sc(l policies :i(iO 57,s 
 
 Ncjficctinjj: lo deliver policy . .lI(iIS2 
 
 XefrlecliuK to forward application In 
 
 company 1((2 174 
 
 (See also Xft/ofi'oruin ijrstor). 
 
 I'owers as lo interim receipt, en- 
 dorsement as to steam power on 
 application Ill 17it 
 
 Privileged comninnicatioiis after 
 loss :>,tl 4!t."> 
 
 Questions arising Uetween them and 
 their principals, the insurance 
 compaTiies, as (o conmiission, ter- 
 mination of afjeucv, premiuiiiN, 
 etc ■ :«S .-)1I 
 
 Dismissed on winding-tip, cannot 
 elann dainafrcs '.Vlt 4il7 
 
 tiuestions of pavmenis of i)renuums, 
 r. S, cases .'. .•KKI .J17 
 
 Iteccipt for )ireminni dillerinn from 
 interim receipt jjiven 104 17") 
 
 Will"" ajicnt acts for liotli parties 
 without their knowledue. either 
 nuiy avoid 'A-l'l lit!) 
 
 Insurance procured hv i:i(l liMi 
 
 do '. V.Wf I'.HI 
 
 do VM mt 
 
 do l:tll.(/ lilKI 
 
 Musi declare Ins interest VMii 1!I7 
 
 (See also Assessment.! 
 do I'lerls.t 
 do .Medical oHieer.i 
 do I'remium luite.l 
 ilo Additiiuial insurance. l 
 
 Aid or assistance, payments of. 
 
 liv .Mutual Aid and Menelit .\ssii 
 
 ci'alions. I{. S. t/. 1S,S>< 7:!l 
 
 Alteration^ in thiu^ insured with 
 
 out consent of insurer, ('. ('. I.. ('. 72!l 
 (See also Change. Increase of risk, 
 l.ialiility.) 
 
 Amount payable, where it is a 
 
 matter in dispute. Out. Ins. Act. 7S2 
 
 Anfiflo-Saxon guilds, lustcuy of., i 4 
 
 Annual statements hy com- 
 panies under the Ins. .Vet of 
 
 '^■. .'.da 701 
 
 )reinM :ompanies under same 
 
 / - 702 
 
 ■»' 71S 
 
 1'o,' .,<■■<.< other llian life, lire cu' 
 
 iii'; !i<' ni,i»-!ne insurance iiiuier the 
 
 '. : u • •; 712 
 
 lull*- .•'su ranee under the same Act. ~\'-\ 
 in ar. .nt aland marine insurance 
 
 under t he same Act 711 
 
 To rcnislrar. Out. Ins. Act 7lilt 
 
 l{e(|uired in Manlloba S2S 
 
 do i<i->. 
 
 I'ar. I'ani' 
 
 Annuities, assurance of, to dehar 
 from rejiistration as .issessnuMit 
 company under the Ins. .\ct of 
 t'anada 7Ut 
 
 .Annuity insurance, t'. ('. li. C. (life- 
 rent) 7:(o 
 
 Action for, Ont, Ins. .\ct 77s 
 
 Sale of, with rijjhl in uraidorto re- 
 purchase H.'JH .")7:t 
 
 Annulment of policy, must be 
 
 demanded :\\U (i">!» 
 
 nSee Waiver, t'aneellalioii.l 
 "Appeal," what it iiu-ludes, Ont. 
 Ins. Act 711 
 
 Application of Insurance 
 
 Act of Canada ami uncon- 
 stitutionality of some of its provi- 
 sions ;it-;t.s (ir)-()S 
 
 Application, definition of term ."i2 H(i 
 
 Payment of premium and <lelivery of 
 policy II and -sv'/. 72 
 
 -Vcceptance makes valid coiitr.icl, 
 contract liy parol, policy not es- 
 sential, 11(1(1 fit/Ill in iiiintiiiiii suf- 
 iicient .. '.'..'. 41, 41«(, Wli 72 
 
 Law in l,>uel)ec and in Old l''raiu-c. lie 7:1 
 
 do in I'liinland iltl 74 
 
 do in France lU' 74 
 
 do in (ierniany 41/' 74 
 
 How company ?nay coiuracl 12 74 
 
 When parol contract will .-ind will 7.t 
 not hind company IK, l!t(( X\ 
 
 AVhen statutes do not e.xpressly ju-o 
 hihil parol II liS 
 
 Parol contract in the rnitedStates4r) 7."> 
 
 (iriswolds dellnilion of verbal a^;rec 
 nu'iil and parol contr.uM 4() 7() 
 
 IJecent Auu'ricau di'cisions on parol 
 contracts, contract in writing re- 
 formed by parol. i)rovision in 
 charter not applying to prelimin- 
 ary arraiiKenu'iits 47 7() 
 
 Preliminary oral contracts, co]n- 
 mencement of risk, payment of 
 premium not essential, authoiily 
 of a^-eiit. iisan'c I7(( 77 
 
 Whcii a parol contract is not in- 
 fcrrecl, actual acceptance and 
 liceru-c I7'> 7s 
 
 .V New York decision on parol con- 
 tracts 17c 70 
 
 A Kentucky decision on same suli- 
 .jeci, mikI aiicni's authority 47'/ 70 
 
 Copv of. attaclti'd lo policv . ."m SS 
 
 Klleet of acceptance of, (','('. I., (" . 722 
 
 Eiulorsenu'iil, as to ste.im power, 
 interim receipt Ill 170 
 
 Interim receipt not forwarded to 
 company 102 
 
 (Sec I uterim receipt.) 
 
 Plaint id' nniHt set out application in 
 an tiction as part of conlraci . .'■VX> 
 
 Policy must coid'orm to, and is pre- 
 sumed to ill) s(j unless attention is 
 calleil to ditlerence 112 
 
 Special survey report not forminii 
 jiart of ' IiriO 
 
 \\ hen it is a material issue liOl 
 
 Variaiu'O bet ween it and policy (see 
 .Statutory Conditions). 
 
 171 
 
 m{} 
 
 ISI 
 
 .-.III 
 (HtO 
 
 lis . i 
 
ANALYTICAL AND ALPllAIiETICAL TAIILK. 
 
 845 
 
 l'a«i> 
 
 no 
 
 7:) 
 74 
 74 
 74 
 74 
 75 
 
 75 
 
 7() 
 
 7(i 
 
 III 
 |«l.") (Kill 
 
 ['f- 
 
 \vi isi 
 
 15(1 5(il 
 Kill lUHl 
 Ice 
 
 l';ir. I'iiwc 
 Application due 741 
 
 " Apportionment" inciuiinji of 
 
 * term, Out. Ills. Act 7S<) 
 
 Provision in case of dentil of jiersons 
 entitled wliere no apjiort ioiinienl, 
 
 same Act 781 
 
 In ea.se of preferred beneiiciaries, 
 
 same Act 7M(! 
 
 Protection of insurer in paying in- 
 .suranee liefore notice of declara- 
 
 I ion, same .Vet. 7H1 
 
 Arbitration, a condition prece- 
 
 deiii :wi ii:w 
 
 ConsI ruction of clause of, no condi- 
 tion iireeedent :Wt tW5 
 
 Applical ion of rule reiiuirinj; a strict 
 const ruction to prevent a for- 
 feiture ."isl (ill! 
 
 Company lannot demand ajipraisal 
 and, at the stinii^ time, deny ]\; 
 
 biiil V. 
 
 C^ompany refusing to pay, hnl not 
 oll'eriiii; to submit to ailill ra- 
 tion . ' :isi li;«t 
 
 Clause is iiioperal Ive when no a.bi- 
 
 tralors are afii'ced upon :)8I ti^ilt 
 
 Kllect of instructions to appraisers 
 
 bcinj; on too narrow a Imsls. . .;tSI (ilii 
 Kllecl of appraisers not beiiiji dis- 
 interested :{S1 (ill' 
 
 Kuiliire of ai)|iraisenient caused bv 
 
 assured :tsl (ill 
 
 One appraiser ceasing to .act HSl (ill 
 
 In acciilcn; insurance :W( (i:i5 
 
 I.e;;islalivc enaclmeiils and .juris- 
 
 Ijrndeiice on -i^i) (Kil 
 
 Must be dcmaniled within ,i reason- 
 able (iine :t.>^l ()l(l 
 
 No arbitral ion in a tolal loss ItSd (i:!;") 
 
 Oral evidence as to appiaiseoiciit.HSl (ill 
 Waived by failure of company . . .:tsi (ilill 
 Waiver of, by deni.il of lial>ility .:!-l(i 511 
 I'owei of adjuster to waive .... :ts-j(ill 
 
 Hcference to, ,i waiver iti! 505 
 
 Si ipiilat ion mnsl be deliiiite MSI (ilill 
 
 To decide ainoiiiU of loss only, with- 
 out admiltin^ liability ..."... :!S1 (111 
 Umpire chosen aftei' appraisement 
 
 was bci.';nn :t,s| lit I 
 
 When St ipiil.u ion is revoc.ible . :i.sl ii|2 
 When there is no disafirei'ineiit as 
 to the aiiiounl or rcipu'st for sub. ^\'^\) 
 
 mission to , appraisers . . liSl (ild 
 
 When void as ouslinj;- the i-oiiils of 
 
 .inrisdiction -isl (ili!) 
 
 Where award doe.s not llnill rluht of 
 
 recovery ilSl (112 
 
 Where insured had the right of ac 
 
 tloii without appraisement MSI li4ll 
 
 Where the siipulatlon is not legally 
 
 elVeetiial to bar iU'lion Its'l (U(l 
 
 .\|>pr.ilscrs lees of ;iS2 (il2 
 
 .Vmerican ileelsions . . .MSI (|;{S 
 
 do on duty of ap- 
 
 I'lO-. I'ilui' 
 
 Dcfjrec of proof of. rci|iiired M,s.") (i.">M 
 
 Disilnction between arson and In- 
 
 cendlarisin M(i.'t 5S1 
 
 Evidence as to orljiln of lire where 
 
 no plea of arson ;t,s7 (i,")(i 
 
 (.See also Liability for losses!. 
 
 Ashes, division of loss M45 5.55 
 
 Assessment U|ioii net jirotlts of 
 
 agent 11(1 (iSl 
 
 .Assessments, action for, bv re- 
 ceiver ". , ..|21 (i!IM 
 
 Assessments under the Ins. Act of 
 
 Canada 71(1 
 
 •• Assi'ssmeni ins;!r:vnce," whai it 
 
 includes, Out. Ins. Act 710 
 
 "Assessment system," prlntln;j;- of 
 
 words, Out. Ins. .Vet 7ii() 
 
 .Assessments and premium notes, 
 
 same Ac! 771 
 
 .\ssessmenl of eoinpanies in i'.lvl SIP 
 
 .MSI ()Mil Assets, dispos.al of. In c.ise of com- 
 
 panies ceasiiiL; to ilo business 
 
 under (he Ins. ,\ei dl Canadti . 707 
 i)ist ribiuioii of, under (he Ins. Act 
 
 of Canada, In ease of insolvency of 
 
 company .."... 71S 
 
 .\ssels of company appe.uinji iiisiilll 
 
 (lent. Oik. Ins. Act 7ii!» 
 
 Assignee, aclion in name of MKI li()2 
 
 .\ppoinimen( of, in case of compan.N 
 
 bei ominji insolvent, Ins. .Vet lif 
 
 C;uiada 717 
 
 .Vssl)^nces to bankrupts. Insurance 
 
 by 1.5M 21 1 
 
 Assignment, traudnlentlv obtain 
 
 ed ;!!l.". (i(i.-i 
 
 Of life p(plleles. Out. Ins. Act 7sl 
 
 do In r. ,S . I7!» •2-J.l 
 
 (See also 'I'lansfer. Insmable inter 
 
 est, Prererrcd beneiiciaries.) 
 Surniider of coiitraei. Out. !.is. 
 
 .\i't 7s7 
 
 Of properly wilhonl written permis- 
 sion, OiU. .Stilt. Cond 7!l(l 
 
 do li.C. do .SMI 
 
 Assured, deadi of, abroad, forelun 
 
 law .... ^ 21(1 MP2 
 
 '■ .\ssiired " and '"insured." dciini- 
 
 tion of lerins I7ii 225 
 
 " .Vssured." meanine- of, (Int. Ins. 
 
 .Vet 7M1> 
 
 Attachment, (see Creditor.) 
 
 1!\ ^arnishnienl, payment lulo 
 
 eonil .' Ill) (i.S7 
 
 Of risU. date of M.52 .5(i5 
 
 Audit, .imniiil, Onl. Ins. ,\cl 7(17 
 
 Authority of Manager 7m kip 
 
 (.Vnd see Aijenls.) 
 
 It 
 
 Bank holding invalid ware- 
 house receipt, insurance by.(i7 IMI 
 
 pralsers M.S2 (ilM Bencflciary, deslgnalioii of. Out. 
 
 In case of diU'erences as to amount Ins. ,Vcl 7sl 
 
 of loss, Onl. slat, cond 7112 Chantic In. same .Vet ...!.... 7S1 
 
 do K.C. <lo ,'^:«i I .Vssured may vary, .same .Vet 7.S(( 
 
 Arson MiKI .5S1 ; I.eadinK ii erlminal or immoral life, 
 
 (.'rlmlniil charge of, as a bar to civil same .Vet 7S7 
 
 action to recover on ])oliey MII2 (1.5!) ' do Hid M08 
 
846 
 
 INSURANCE LAW OF CANADA. 
 
 |i 1 i;! 
 
 Par, Pajjf 
 Right to divest, without his coii- 
 
 a,.nt Sll» 4iK» 
 
 Surrender of policy without con.sent 
 
 of, and issue of new policy, (see 
 
 ['referred beneficiaries.) 
 
 " Assured " or ' insured " 17(i 22.5 
 
 Beneflciarv's rights aU'ected bv acts 
 
 of Insured 12« 1!W 
 
 " Heneticiarv for value," meaning of, 
 
 Ont. Ins. Act 740 
 
 BenetlciAry heirs, insurance by . . .l.">:i 214 
 (See Preferred benetleiaries.) 
 Benellciaries, infant, payment of 
 
 insurance money, Onl. Ins. Act... 782 
 "Benefit," wliat it includes, Ont. 
 
 Ins. Act 740 
 
 Benevolent and mutual benefit 
 
 associations and nuitual insurance 
 
 companies, H. S. Q. 18H8 7*1 
 
 Benevolent society, (see Mutual 
 
 insurance). 
 
 Bicycle insurance com- 
 
 Fianies, canital stock of, Ont. 
 ns. .Vet 74;i 
 
 Binding slip, (see Interim receipt.) 
 Blanks, agents' implied power to fill 
 
 in 284e 431 
 
 (See Agents.) 
 Board of Directors, general pro- 
 visions, Out. Ins. Act 770 
 
 (See also Directors, Discretion, E.x 
 grctia i)iiymcnt.) 
 
 Body as proof of injury. .;»t ooi 
 
 (Sec alsd I'roofs.) 
 
 Bonuses and profits, assured 
 
 may direct application of, Onl. 
 Ins". Act 787 
 
 Books, periodical audit, invest- 
 ments, liiianclal statement, Ont. 
 
 Ins, Act 707 
 
 To be kept by coin|)anies in Mani- 
 toba .■ 828 
 
 Borrower, insurance by 152 214 
 
 (Sec Creditor.) 
 
 '* Branch," meaning of, Ont. Ins. 
 
 Act 7;« 
 
 British Columbia, legislation on 
 
 preferred beneficiaries 241 310 
 
 Legislation on warranties 21)8 HU2 
 
 Valued policies in 01*' 04 
 
 (See also Proofs of loss. Creditor.) 
 British ('olumbia enactments 833 
 
 British Columbia, s^.atutory 
 conditions of fire insur- 
 ance contracts : 
 
 Actions, limitation of 837 
 
 Agent, proof of loss may be made by SW 
 Arbitration in case of diirerences as 
 
 to amount of loss 830 
 
 Assignment of property without 
 
 written permission 834 
 
 Change as to risk, when it shall 
 
 avoid policy, notice of change, etc 8,34 
 Chimneys, etc., liability where loss 
 
 is caused by detects in 835 
 
 Claim, directions to be observed on 
 
 making 8,'55 
 
 Explosion of coal gas, liability for 
 
 loss caused by 8;jo 
 
 Par. Pagfi 
 
 Fraud in proofs of loss vitiates claim 8;«> 
 (Junpowder, coal oil. etc., storage of 8.'i.i 
 Heat, loss caused oy goods being 
 
 sub.jected to 8;<5 
 
 Insurance terminable on notice- 830 
 
 Invasion, etc., liability in case of 8;t5 
 
 liiability, where none'attacl'.es 835 
 
 Lightning, liability for loss caused 
 
 ^ hy 835 
 
 Limitation of actions H37 
 
 Loss, when payable 8:W( 
 
 Loss, if payable to mortgagee ; policv 
 cannot be cancelled or changed 
 
 without not ice ,s37 
 
 Misrei)resentations or omissions 831 
 
 Money, .secui'ities, etc., not insured. 8:14 
 
 Mortgagee, if lo.ss iiayabie to 837 
 
 Xon-ownership, liability in case of. . 835 
 Oflicers of company, when deemed 
 
 agents .. ,mj(( 
 
 Partial damage, salvage 8.34 
 
 Plate, paintings, clocks, etc., not 
 
 insured unless mentioned 8;i5 
 
 Policy sent to be deemed as ap|ilied 
 for unless variance pointed out...8:t4 
 
 Prior or subseiiuent insurance ,S35 
 
 Proof of loss to be made by assured 835 
 Proofs of loss, fraud in, vitiates 
 
 claim ,vi;i(i 
 
 Proof of loss may be made by agent. 830 
 
 Reinstatement, right of ««( 
 
 Repairs by carpenters, etc., loss oc- 
 curring in consc(iuence of .SHo 
 
 Riot, invasion, etc , liabilitv in case 
 
 ^ of ; ,«;{.-) 
 
 Subse(|U('nl insui'ance ,s;C> 
 
 Termination of insurance oi notice. 83(1 
 
 AVaiver of conditions fi'M\ 
 
 Written notice, what constitutes it. 837 
 
 Broker (.sec Agent.) 
 
 Burden of proof, if doubtful as to 
 
 value construed against company 
 taking risk without en(|uiry. . .34'5 ."m3 
 (See also Proofs.) 
 
 Burgrlary insurance, (see Nature 
 
 ofConcract) 28 54 
 
 Conditions in 202 .370 
 
 Companies, cai)ital stock of, Ont. Ins. 
 
 Act 742 
 
 Business, classes of, that may or 
 may not be done together uiider 
 
 the Ins. Act of (Canada OSXi 
 
 By-laws, presumption that mem 
 hers of mutual company know 
 
 them ■. :M() Mli 
 
 By-laws of nmtual companies, Ont. 
 Ins. Act 740 
 
 C 
 
 Calls on stock after suspen- 
 sion of license (see winding- 
 up). 
 
 Canada, the Insurance Act of 005 
 
 Canadian company, interpreta- 
 tion of terra, Ins. Act of Can 005 
 
 Meaning of term, Ont. Ins. Act 737 
 
 do in Manitoba 820 
 
 Canadian insurance legisla- 
 tion. Dominion enactments 005 
 
ANALYTICAL AND ALPHABETICAL TABLE. 
 
 847 
 
 or 
 
 m\ 
 
 (10 r>i:< 
 
 nt. 
 71(1 
 
 ta- 
 
 (ii)5 
 7:i7 
 S2(i 
 
 «!I5 
 
 715 
 712 
 
 711 
 
 82(1 
 
 Par. Page 
 
 Canadiaiii policy, intfi-prutntion 
 
 of term, Iiis. Act. of Can (ii).") 
 
 Cancellation uf policies in mutual 
 companies, Ont. Ins. Act 772 
 
 Of policy, rinlit of, and niiinner. .'Hki ;17.") 
 
 Of bindinKslip 118<( 1H2 
 
 Of interim receipt, notice iieccs- 
 sury .... .... 107 177 
 
 Of risk neces.sarv under interim re- 
 ceipt '. Ill 170 
 
 (And .see Interim receipt, Annul- 
 ment ) 
 
 Of premium receipt, notice of re 
 ceived after tire IW ISl 
 
 Forfeit uro, declaration l>y company 
 to work Kl l.")8 
 
 Of registry, Ont. In.s. Act 7(>2 
 
 By consent of partner 'MWi: 'M) 
 
 Notice of, to broker of insured sutli- 
 cient llHr/ 182 
 
 (.See Ajjcnlst. 
 Capital, condition of, in middle 
 ages 7 
 
 In mutual Are insurance companies, 
 Ont. Ins. Act 
 
 Stock of companies, Ont. Ins. Act... 
 
 " Cash mutual company." 
 
 meaning of term, Ont. Ins. Act.. . . 
 
 do in Manitoba 
 
 Ceasingr business, duty of com- 
 pany, Ont. Ins. Act 
 
 Release of dejiosits under the Ins. 
 
 Act of Canada 707 
 
 do 712 
 
 do 718 
 
 Certificate that loss is not fraudu- 
 lent :{78 027 
 
 Of maKistrate (see Proofs of loss*. 
 
 Of physician (see Proofs of death). 
 
 Holders, right of, in distribution of 
 a.ssets in Alassachusetts 121 (MKl 
 
 Of license under the Foreign Cor 
 
 porations Act of Manitoba X'.V1 
 
 Change of goods ins'Ted :il!> .").")!) 
 
 Of ko(kIs (see also Substitution of 
 goods insured), 
 
 Of etl'ects insured 270f/ ;«!.") 
 
 Of name or of head olHce, Ont. Ins. 
 
 .Vet 710 ! 
 
 do do inMaiMtoba.. 82S | 
 
 As to risk, when it shall avoid policy, i 
 
 Notice of change, etc., Ont. Stat. i 
 
 Cond 7!Ht I 
 
 do do B.C. Stat. Con . . SH I 
 
 In the use of insured premises, in- 
 crease of risk, question for the 
 Jury ;«)1 (Mil 
 
 Of lieneftciary, under condition in 
 policy 2(}la ;)70 
 
 (See also .Vlteration, Liability.) 
 Charter, provisions of, as to form, 
 .seal, etc .")() 84 
 
 Cheque for premium unpaid.82 i.~)0 
 
 (See also Premium.) 
 
 Chief aKenoy, interpretation of 
 
 term, Ins. Act. of Can (105 
 
 Meaning of term, Ont. Ins. Act 7:is 
 
 Chief agent or otllce, change of, 
 
 R.S.Q.1888 734 
 
 (See also Agents). 
 
 Par. I'aur 
 
 Child adopted (see insurable In 
 
 terest). 
 
 Children, insurance for the benefit 
 of (see Preferred Hene(ieiaries). 
 Cliildren's lives, insunince of, Ont. 
 
 Ins. Act 7 
 
 Chimneys, etc., liability where 
 loss is cau.sed by defects' in, Ont. 
 
 Stat. Cond 7i)l 
 
 do do B.C. Stat. Cond.. 8:15 
 
 Churchwardens, insurance by.lS;} 214 
 
 Civil Code of Lower Canada 72 1 
 Civil service fund of Canada, 
 
 Ont. In.s. Act 7.-<i 
 
 Claim, when it must be made by 
 
 , '""i' IO;i (171 
 
 In Ontjirio by repicsentative under 
 foreign law 240 ;*)2 
 
 Of policy holders in case of insolv- 
 ency of company under the Ins. 
 Act of Canada 717 
 
 Directions to be observed on making, 
 
 Ont. Slat, ('ond 701 
 
 do do B.C. Stat. Cond. . 8;15 
 
 Kdect of non-payment of, Ont. Ins. 
 Act 7-,i 
 
 W hen legally payable. Ont. Ins. \ct. 7(M 
 
 Admitted, but not paid, payment 
 into court, Ont. Ins. Act. . .' 784 
 
 Where it is optional with the insurer 
 
 to pay cliiinis void under certain 
 
 stat\itory conditions of Ontario .. 70:{ 
 
 Classes Of business that may or 
 
 may not be done together under 
 
 the Ins. \v\ of ( '.inada (I'.Mi 
 
 Clerks, matter left to under clerks 
 to deal with, insure!' held t)Ound. . 
 
 lo:Vf 2:t!» 
 
 (See also Agents.) 
 
 Co-heirs, insurance by 158(( 218 
 
 Co-insurance clause (see Addi- 
 tional insurance) 201 l.'iO 
 
 Condilion of average 201 457 
 
 "Collector," meaning of term, Ont. 
 
 Ins. Act 7:1,-^ 
 
 Comity, law of (sec Koreign Com- 
 panies). 
 
 Common carriers, insurable in- 
 terest i>{ i;i(i,/ p.),s 
 
 Company, interpretation of term, 
 
 1ns. Act of C'iin 005 
 
 Meaning of, Onl. Ins. Act 7:17 
 
 do in Manitoba 825 
 
 (luaranteeing its own employees, 
 
 Onl. Ins. Act ~m 
 
 Ceasing to do business and release 
 of denosits under the Ins. Act of 
 
 Canada 707 
 
 do 712 
 
 do 718 
 
 Commencement of risk .... 47r' 77 
 
 do and termination, C. C. L. C. . 72:1 
 do 7:il 
 
 Community, polii'V forming an 
 asset of, widow entitled to one- 
 half 22(t 277 
 
 (Quebec legislation respecting life 
 assurance an<l community ... .2:19« 200 
 
 (And see Preferred beneliciaries.) 
 
848 
 
 INSURANCE LAW OF CANADA. 
 
 Compensation or set off . . . 75 uii 
 Compromise. oiVi'i' of. iit-i<i not a 
 
 WiiiviT of rif^lil to invoke ilcft ct in 
 
 proofs of los.s ;i72 (il I 
 
 (And Ni'C I'roofs of loss.) 
 
 Concealment, (sec Atliiilional In- 
 s\uanci' anil W'airanlies). 
 Of previous refusal ll;f ISl 
 
 Elleetof, t'. C. r.. (• It2 
 
 Concurrent insurance, (see au 
 
 iliticnial Insmanee.l 
 Apporlioninenl of Iohs :i!):i .|5il 
 
 Conditions, (sei- also .StiitiUory Con- 
 ditions, Wanaiilies.) 
 Of j)()li(,ies inilndiim sralutor.v con- 
 ditions and their varial ions' 'JKi :i;i!l 
 
 .lust :ind I'uasoinilile iSii ||(i 
 
 ilo 2!M |.-)S 
 
 do •2i'.) -.m 
 
 Of poliev, as to change of lienelici- 
 
 ai> ..■. :i(>l<( :{7(i 
 
 III small type, ealcnlated to elude 
 observation li.Vl :iX\ 
 
 As to direct and Jiositive proof. . .'.Hu> .")IMt 
 
 As to proportion of loss oidy to he 
 born by insurer ;)4.") 'v>n 
 
 As to alitniation of property not Just 
 or reasoinihle 'J.")!! :<i)ii 
 
 -Vs to time of payment of loss. . .258 :i."i!l 
 
 As to non-payment of premium note, 
 omission to till up lilaidc date.. •J.^ii :!.J7 
 
 .Vs to forfeiture for non-payment of 
 premium note, .just or reason- 
 aide •J.")7 1 1 sr(/ . :{."i7 
 
 Tliat aij;ent lie re,uarded as tineiit of 
 
 the appliciint ^.'iti :i")7 
 
 Where certain articles are i>rohi- 
 bited specially but are embraced 
 in Ke"t"'<'' ifescription of goods 
 insured iVir AM 
 
 Where "gunpowder" is iirohibited, 
 but "slock in trade" is allowecl, 
 is gunpowder part of slock in 
 trade '.laiic :l.i(i 
 
 To be construed voiitrn pritfcmitis 
 and written to prevail over print- 
 ed ^.Vic :i.~)(i 
 
 do -IM MA 
 
 do ■iy.\ :i5:{ 
 
 As to two-thirds liability Ilt.5 TiTm 
 
 That oidv two-thirds value can be 
 recovered :!i)I l.").s 
 
 Of average, co-insurance clause.. 2!)1 4.")7 
 
 Of which insured was unaware, 
 interim receipt 10.'^ 17.") 
 
 As to term for payment, waiver of, 
 etc ." lin ()71 
 
 As to pliice where suit may be 
 brought -105 (M) 
 
 Against ashes in lire policy not vio- 
 lated by deposit of cold ashes. . .'M'-> o'X\ 
 
 As to «|iuvntity of gunpowder al- 
 lowed 2.").") .S58 
 
 As to property " levied on " t&S '.TiTy 
 
 As to cancellation 2()(i H75 
 
 AVaiver of, cases where it occurs. .;i"ifl .5(10 
 
 Of life assurance policies, waiver 
 of 201 370 
 
 Of policy in New York 2()3 H73 
 
 Par. VastQ 
 Must be set otit in full on policy, 
 under Dominion and Ontario 
 
 -Vets ^.V^ and .svy/. 352 
 
 In i)olicy must conform to applica- 
 
 tlO.! 
 
 Of (jolicies 
 
 ceipt 
 
 do 
 
 Of policies read into binding sli| 
 
 'I" 1IS(( 
 
 Xondeliverv of policy a waiver 
 of '. iMa 
 
 read into interim 
 
 112 IHl 
 re- 
 in IHl 
 117 \H-> 
 lis l,S2 
 IS I 
 
 Of policies of ICng. Kire Ins. Cos. in 
 Quebec : 
 
 Description of property insured.. . 
 
 Change in risk ' 
 
 OwniTshi)) of proi)erty 
 
 PrepayinenI of prenuiim 
 
 I''if e heat 
 
 What policy does not cover 
 
 What property imist be particu- 
 larly si)ecilied 
 
 Other insurance 
 
 Option to cancel 
 
 Death or in.solvency of the insured. 
 
 Hemoval 
 
 Tr.-msfer of interest of iioiicy 
 
 Notice of proofs of loss " 
 
 Prolit not insured 
 
 Framhilent claims 
 
 Loss payable within (Ml days after 
 adjustment ". 
 
 Reinstatement 
 
 .Vbandonment 
 
 Over-viiliiatioti 
 
 Uemoval of property in case of 
 conllagrat ion ' 
 
 TropertN lost or stolen 
 
 Condition as to chimneys, etc 
 
 Otiicers or agents not personally 
 responsible ". 
 
 Limitation of action to 12 months.. 
 
 Arbitration 
 
 .Notices by insured to be in 
 writing 
 
 Knilorsements to be duly ap- 
 proved 
 
 Reports of comiiiiny"s ollicers or 
 agents upon losses to be confi- 
 dential 
 
 Waiver of conditions 2(10 3.")!) 
 
 Of till- insurance policies in use in 
 (ireat IJritain :- 
 
 M.iterial misdescription 
 
 .Subsei|Uent increase of risk 
 
 Remo\ al . . 
 
 What policy does not cover 
 
 Preniinm receipts 
 
 Alienation of property 
 
 Notice of proofs of loss 
 
 Fraudulent claims 
 
 Rcinstateinenl 
 
 Riglils of company In case of tire.. 
 
 Abandonment . . .." 
 
 Other insurances subject to aver- 
 age 
 
 Arbitration, 
 
 Forfeiture of premiums on void 
 
 policy 
 
 Subrogation and redress 2(!0o 3(10 
 
ANALYTICAL AND ALPHABETICAL TABLE. 
 
 849 
 
 <N) 
 
 300 
 
 Piir. Page 
 
 In hui-Kliiry j^uiiriintfc insurance :— 
 
 Corri'C't rei)resi'ntivtions 
 
 Fru\i<lulfnt cliiiuis. 
 
 Nature of interest 
 
 Alienation of property 
 
 Notiee and proof of loss 
 
 Precant ions for safety 
 
 Non -oecn|)ation 
 
 Heinstaleiiient 
 
 SutiroKation and redress 
 
 Itenewais 
 
 Cancellation 
 
 Material chanj^o of risk 
 
 Actions on policies _ 
 
 Limitation -t*- •*'•' 
 
 Of iKilieies under the Ins. Act of 
 
 Canada '<X' 
 
 Policy containing other than statu- _ 
 
 tory eonilitions, Ont. Inn. Act 793 
 
 Of i)olieieH in .Manitoba **22 
 
 Conduct of company, estoppel 
 
 as to limitation Wl 07!) 
 
 Conflict or ambigruity in con- 
 ditions, construction vontnt 
 priifffixlis (.see Conditions). . . .I2.")3 353 
 
 Consignee, insurance by 130/i 20(1 
 
 Consijinees and eommission mer- 
 chants insurance bv 130e 19!) 
 
 Consolidation of actions. Ont. 
 
 Ins. Act 778 
 
 Construction contra pro/cr- 
 
 rntes (see Conditions) 34.5 5.53 
 
 do 345 5.55 
 
 Written prevails over printed . . .'Ml 38tS 
 Of terms of policv, rule of " ejiisrlfin 
 l/niiris " ■ 'MH 379 
 
 Contestations on technical 
 grounds not favored by 
 
 courts 3S5 mz 
 
 Continuity of risk I33 203 
 
 Contra proferentes, construc- 
 tion of conditions (see Conditions) 
 
 2.5:1 353 
 
 do 255c 3.50 
 
 Contract, nature of, C."t\ L. C '?l 
 
 Who may insure, do .... 721 
 What niav l)e the object of insur- 
 ance. C C. I>. C 723 
 
 "Contract,' meaninp of term, Out. 
 
 Ins. Act 73S 
 
 Meaning of term, .Manitoba S2() 
 
 Itescission of, on account of misrep- 
 resentation by agent a.s to panl-up 
 
 capital 421 («I3 
 
 Where made 92 170 
 
 Made outside Ontario governed by 
 
 statutory conditions 251a 351 
 
 Of marriage, insurance under. . . .171 223 
 
 Deemed made in Ontario 777 
 
 Contractor, insurance on building 
 
 by .394 002 
 
 Contribution to expenses of otlice 
 
 of inspector, Ont. Ins. Act 796 
 
 By companies towards expenses of 
 office of superintendent under the 
 
 Ins. Act of Canada 705 
 
 do 712 
 
 " Contributory," whom it in- 
 cludes, Ont. Ins. Act 741 
 
 54 
 
 I'ar, Pane 
 
 Conversion of mutual into Joint 
 Slock companies, Ont . Ins. Act... 710 
 
 Corporate powers, forfeiture of, 
 
 Out. Ins. Act 743 
 
 do 744 
 
 do "to 
 
 "Corporation," meaning of term, 
 
 Ont. Ins. Act 739 
 
 May not enlarfie its powers btit may 
 
 incur lial)ilities 4!( H3 
 
 do I9rt S3 
 
 Costs, allowance for, if occasioned 
 by default of ))laintitr. Ont. Ins. 
 Act 794 
 
 Covenant to insure, etrcci of.i30 m\ 
 
 Credit, given for nreminm 72 1(10 
 
 do 73 KM) 
 
 (And see Premium note). 
 
 " Creditor," wliom it includes, Ont. 
 
 Ins. Act 711 
 
 Insurance V)y 107 it sii/. 220 
 
 Insurance by bondholder US 213 
 
 Insurance liy unsecured creditor, 
 ellect of, iHj/<ttii)riii>< i/islor. ■J.i)\ 245 
 
 Insurance by debtor to sei'ure, ellect 
 of, where "debt is afteiwards paid 
 otr 200 245 
 
 Insuring to cover expected out- 
 lays lS(i 231 
 
 Mortgage held discharged l)y pay- 
 ment of insurance money to nmrt- 
 g.igee, subrogation clause ISO 234 
 
 Payment by insurance company, 
 right of debtor to have mortgage 
 discharged 1!U 210 
 
 Insurance by mortgagee or hy))othe- 
 cary credi"tor '. 1S7 233 
 
 Insuraiu'c by mortgagee, other in- 
 surance 212 25() 
 
 Insuraiu'c by mortgagee, case of as- 
 signment by mortgagee without 
 transfer of policy, rights of mort- 
 gagor 197 242 
 
 Insurance by mortg.igee, property 
 must l)e worth the mortgage, or no 
 
 lo.ss I!H) 244 
 
 do (and see S 1!I8) 204 217 
 
 Insurance by mf)rtgagee, if liis secur- 
 ity is restoied he cannot recover 
 as" f(U- a loss 190 242 
 
 Insui'ance by ?ni)rtgagec. if after par- 
 tial loss enough remains to se<ure 
 miirtgnge no claim by m.irt- 
 gagee " . . .199 215 
 
 Insuraiu'e by mortgagee, where after 
 partial loss enough remains to 
 cover mortgage claim 204 247 
 
 Loss imyable to mortgagee, i)Osilion 
 of mortgagee towards insurer, as 
 to previous and subse<iuent acts of 
 
 insured 19H 213 
 
 do (and see S 19S) 203 24(1 
 
 Loss payable to mortgagee, efiect of 
 mortgage clause, provides only 
 against future acts and not for the 
 past 193 237 
 
 Policy in favor of, misrepre.sentalion 
 as to health 2Hlr( 409 
 
 Loss payable to mortgagee, efTect of 
 mortgage clause 103ff 23S 
 
850 
 
 INSURANCE LAW OF CANADA. 
 
 I'lir, I'ltgc 
 
 Loss payiibly to iiiortKaKee, fllect of 
 mort^iiKc ulau.se, sulirogat ion. 104 ZIO 
 
 do ll»r. 241 
 
 do 210 264 
 
 Los« payiible to inortjjfftRee, ditttiiic- 
 tioii lii'tweun loss piiyal)!*- to iiiort- 
 KaKue, .simply nuiiiiiiK him, and 
 loss to mortKU(.;ei' " an liis iiitcrest 
 may a|)pcar " 212n 258 
 
 Los.s payal)le to inortifajjee, review 
 of casen'.showiii); when poliey may 
 be dealt witli between insurer 
 and mortgagor without mortgn 
 gee's con.sent 258 212fr, 2126 263 
 
 Loss paya))le to mortgagee, his 
 rights restricted to second mort- 
 gage to cover which inuurauce had 
 been effected 191 ICJS 
 
 Loss payal>le to mortgagee, attempt- 
 ed con.solidatlon of mortgages. .lUl 235 
 
 Loss payal)le to mortgagee who 
 assigns mortgage and as.signee 
 makes no agrcev.-nt with insurer, 
 neither a.ssignoi nor assignee can 
 recover lllUt 2;16 
 
 Loss payable to mortgagee, held that 
 acts of insured might forfeit 
 policy 211 255 
 
 IjOSS payable to niortuagee, insurer 
 and mortgagor cannot deal wit}i 
 policy witliout his consent. . . .212a 258 
 
 Loss payable to mortgagee, apjiraise- 
 ment and award without mort- 
 gagee's consent, distinction be- 
 tween whole loss payable to mort- 
 gagee and loss pay.able "as inter- 
 est niay appear" . ." 2126 2f51 
 
 Covenant to insure in mortgage 
 deed operates as e!iultal)le assign- 
 ment of insurance wlien ell'ected 
 
 nn 240 
 
 Mortgagor has insurable interest, 
 even after ])arting with the pro- 
 perty 205 247 
 
 Hypothecary creditor held nr{io- 
 tioruiii iffxtor for debtor in collect- 
 ing more than debt from insurer, 
 and bound to account for it. . . .20() 248 
 
 Insurance by niortgagec, set tlenn-nt 
 by mortgagee with insurer for less 
 than loss, without mortgagor's 
 consent 2!>4 247 
 
 Mortgagee not bound to make proofs 
 
 of loss liJo 241 
 
 (See also Mortgage.) 
 
 Jn British Columbia, to whom loss is 
 payable, must be notitled of change 
 in policy, and mav give proofs of 
 loss 188 2;i4 
 
 Hound to account to debtor for in- 
 surance monevs received as sur- 
 j)lus over debt'in tiuebec 187 iXi 
 
 Not entitled to be indemnified from 
 two quarters 187 233 
 
 Paid by insurer, cannot collect from 
 debtor in Quel)oc 187 233 
 
 Position of, where lie is paid debt or 
 insurance money 187 233 
 
 In England, if paid, insurance money, 
 may recover debt but for beneflt 
 of insurers 187 233 
 
 Par. P»)fe 
 
 In Ontario, may recover 4)oth insur- 
 ance and debt 187 233 
 
 ETecting insurance on debtor's life 
 and charging premiums to debtor, 
 witliout hitter's knowledge 358 673 
 
 Who is paid may still collect and 
 keep insurance moneys in certain 
 cases 126 103 
 
 Who has received payment by insur- 
 ance money must discharge debtor 
 where premiums were paid by 
 debtor 1»4 240 
 
 Insuring for more than his claim. .86 102 
 
 do (See 
 
 also Insurable interest.) 
 
 Insurance by, in excess of debt. . .107 2*20 
 
 do 1076 221 
 
 do 177 22fl 
 
 Payment of debt not necessarily in- 
 tleninilication of creditor 107a 220 
 
 Payment of debt not terminating 
 life policy IM 229 
 
 Insurance must not be dispropor- 
 tionately in excess of debt 184 230 
 
 Loss payable as his interest may ap- 
 pear, condition that he must show 
 insurable interest, and cannot re- 
 cover more than debt, such condi- 
 tion may be invoked by insurer 
 only, not by creditor claiming ex- 
 cess paid as against debtor. . . .212c '263 
 
 Where debtor agrees to insure, l)ut 
 no stipulation that creditor shall 
 take benetit, or no assignment to 
 creditor of policy 21)2 245 
 
 Mortgagee in the absence of stipula- 
 tion lias no claim on insuraiK'e 
 money 21)2 246 
 
 Mav attach assured's interest in 
 policy 212?; 206 
 
 Credit(')r's interest in life and tire 
 policies 124 191 
 
 Cessation of interest in life 185 231 
 
 I'roofs of loss may lie nnule by cre- 
 ditor to whom loss is payalile . . 198 244 
 
 Crime (see Preferred beneficiaries). 
 
 Criminal prosecution threaten- 
 ed, refund of insuiiince moneys.2i)8 4011 
 
 Criminal charge, arson, as a i)ar 
 
 to civil cliiiiu 392 659 
 
 Cro'nrn's prerogrative See i)e- 
 
 Iiosit). 
 Curator, insurance by 153 214 
 
 Custom, as governing interprefa- 
 
 lion of iiolicies 207 386 
 
 Custom and usage, limitation 
 
 of evidence 304 061 
 
 It 
 
 Damage (see Market value). 
 By explosion (see Liability for loss.) 
 Measure of. recoverable, insurance 
 not to be deducted 308 667 
 
 Date of expiry of risk 352 564 
 
 Days of errace, Ont. ins. Act 779 
 
 Death, presumption of, from ab- 
 sence 368d 576 
 
ANALYTICAL AND ALPHABETICAL TABLE. 
 
 851 
 
 ■nf> 
 
 •205 
 
 191 
 231 
 
 244 
 
 W 214 
 
 )7 386 
 )4 061 
 
 .) 
 
 l8 6«7 
 
 h 564 
 
 779 
 
 576 
 
 I'ur, I'liKu 
 
 Of assured abroad, pftyiiieiit to for- 
 eign representative under Ontario 
 
 law 240 ;v':' 
 
 do do same Act 7K< 
 
 By hands of justice, etc 3>a ti45 
 
 Debentures and promissory 
 
 notes. Out. Ins. Act 771 
 
 Decisions (see Actions). 
 
 Declaration of age and condi- 
 tion of health in life policy, C. C. 
 L. C, (see Age) 7:J0 
 
 Defects in proofs of death, 
 
 company fraudulently misleading 
 
 plaintiff 4(M fWO 
 
 (See I'roofs. > 
 
 De facto directors, persons 
 
 falsely assuming to carry on busi- 
 ness 359 577 
 
 Defences (see Actions). 
 
 DeUnition of term '■ application "52 K(l 
 Of terms " assured " and " insured." 
 
 17fi 225 
 
 Of "policy" M m) 
 
 Of " premium " H) ti aeq. 99 
 
 Of " month " (8 129 
 
 Delay before action waived by 
 
 absolute repudiation of liability 108 178 
 (.■V.ud see Limitation.) 
 
 Delegation of payment, no 
 
 novation 281^/ 410 
 
 Delivery of policy ti9 u8 
 
 Consumination of agreement (i2 94 
 
 Constituting contract (see Foreign 
 
 Companies). 
 Not countersigned, escrow. (W el sei/. (Hi 
 
 What constitutes It (15 95 
 
 Not made, (ireniiuni not paid f)C 95 
 
 Not proved t)7 '.Hi 
 
 Non-deliverv a waiver of condil ions. 
 
 (•."(( iH) 
 Deposit of moneys in court, witli- 
 
 dniw.-vl ' ...:m titKI 
 
 I . bank, alleged prerogative of 
 
 Crown ill 085 
 
 Is the special pledge of Canadian 
 
 pi.licy-liolders Ill 0.^0 
 
 Of securities with the state lieas 
 
 urer, receiver entitled to dividends 
 
 thereon 417 (J89 
 
 Uniler the Ins. Act of Canada 098 
 
 For business otiier than life, tire or 
 
 inland marine insiiriuice 712 
 
 With government, Ont. Ins. .Vet 749 
 
 And license of mutual or assessment 
 
 life insurance companies under the 
 
 Ins. Act of Canada 709 
 
 In case of l)enevolent and mutual 
 
 benefit associations and mutual 
 
 insurance companies, Il.S.Q. 18S8. 73;i 
 Release of, under the Ins. Act of 
 
 Canada 707 
 
 do 712 
 
 do 718 
 
 Release of surplus securities under 
 
 the Ins. Act of Canada 099 
 
 Release of, Ont. Ins. Act 752 
 
 Interest on, under the Ins. Act of 
 
 Canada 699 
 
 I'ur. I'lim- 
 Rules and regulations of Treasury 
 Hoard, etc., regarding the accept- 
 ance of securities 8.17 
 
 Description of object insured 
 
 (see Warranties). 
 
 "Directors," meaning of, Ont. Ins. 
 
 Act 'W 
 
 Powers of, Ont. Ins. .-Vet 770 
 
 Remuneration of, Ont. Ins. Act 771 
 
 Of joint stocli companies, same 
 
 Act 742 
 
 Of mutual tire insurance companies, 744 
 Qualitlcation of. in nuitual com- 
 panies, Ont. Ins. Act 745 
 
 Qualification of and provisions re- 
 lating to, in mutual companies . . 772 
 
 Decide as to prolits payable :I57 572 
 
 (See also Kxiiratin payment.) 
 
 Directory provisions not bind 
 
 ing on insured 57 8il 
 
 Discretion of directors, linal as to 
 profits ;I57 572 
 
 Distribution of assets under 
 
 the Ins. Act of Canada in case of 
 insolvency of company 71K 
 
 Dividends, payment of. R.S.g. 18H8. 734 
 i'a)al)le (see Divisi))le surplus). 
 In mutual companies. Out. Ins. Act. 745 
 Declaration of. out of puid-up capital 
 of insolvent company (see Wind- 
 ing-up). 
 
 Divisible surplus, discretion of 
 actuary aiul directors 3.57 .572 
 
 Divisibility of risk 282rf 421 
 
 Documents to be iiled under 
 
 the Ins. Act of Canada 099 
 
 Before issue of license in Manitoba.. 8'/7 
 I'nder the Foreign Corporation .\ct 
 
 of Maniti>ba, .. KK) 
 
 " Doing business " in a territory, 
 when it does not come within the 
 meaning of the stitiite 117 ti88 
 
 Dominion enactments 09.': 
 
 Doininion and OiilMrio legislation as 
 to credilius bi'inir set out in full in 
 policy 2.)2 3.")2 
 
 Dominion legislation on wjirranties, 
 elc 2(iN .192 
 
 Dominion no power to .•lulhorize 
 contracts, except such as iire 
 sanctioned l)v Provincial legisla 
 tion ■ 32 01 
 
 Double insurance isee .Vdditional 
 
 and Concurrent insurancci. 
 C. C. L. C 725 
 
 "Due Application," what in- 
 cludes, Ont. Ins. Act 741 
 
 Duelling, death l)y, C. C. L. C 731 
 
 Duration of risk .->8f oo 
 
 And continuity of risk IIW 203 
 
 do of interest 150 216 
 
 Of Hre policies under the Ins. Act of 
 Canada 712 
 
 Of risk,C. C. L. C 723 
 
 do 731 
 
*4 
 
 852 
 
 INSURANCE LAW OF CANADA. 
 
 pjir. l*ii«c 
 
 I'; 
 
 Employer and Employee, 
 
 iiiNiiidlilc inlcnvsl Illl '.illt 
 
 Kiiij)li>ycrH' liiiliilily mi.j OIKt 
 
 I'lilicv rcsci vinx (■(iiilrol of Icxiil piii 
 
 ccctliii^s I,, ((iiiipiinv .'I!l(> (Hid 
 
 Encumbrance (mci". Warnintics). 
 
 Cipiic: .iliiiciil III' Ii7!l 1(11 
 
 (ScCllisO l''lJlll(lulclll ('IllhllH) 
 
 Endorsee on accommodation 
 
 bill, iiisiir.ililc iiiliTisl ol 177 LiLJd 
 
 "Endowment insurance," wlmi 
 
 il. iiii'ImlcH, ()ii(. Ins. Act 710 
 
 I'urliciimtiiiK plim, (sn- Divisil.'c 
 
 SlllplUH). 
 
 ICiidovvini'iil fiinil nl' I'ricriilly siicic- 
 I irs in cMHc of volniidiiv iiiiuiilii- 
 I ion, ()l,^. Ills. Act 7!'S 
 
 English Law of Insurance, 
 
 ( livil CikIc of I.owiT ('luiail: siiiil 
 to roiiliiiii K'""' sllliltliiil y of .. . . I Ml I.S7 
 Error, ( Imission of itrt ii'li's inli'iMUtil 
 
 to 111- iiisiiri'd .s;) |tui 
 
 Itrrt illcat ion of, in policy MICi lilil 
 
 Sulisciiplion, reel lllciil ion of :i!«MHi.M 
 
 .\m to lUiioiint of pi'i'iniiiin, luiniil 
 
 iiu'iil of iiiiilriK't HH 1(14 
 
 III poliry, (Icli'iii'c tliiil policy wuh 
 inli'mlcdlo issue fof n less iiiiioiinl 
 
 I liiin it rc.ul for :(.')2 Tilin 
 
 (Sec W'liniuil ics. I 
 
 Error in age :.< ns 
 
 l.cvjislalioii rc.^iirdiii^ ais ;tll2 
 
 Out. Ins. All 7711 
 
 (And sec Am'). 
 Escrow, delivery of policy nol conn 
 
 tersiniied. ... '. .' (in !l(i 
 
 "Estate" includes I'stiile iind 
 
 etieets, Out. Ins. .Act 711 
 
 Estimate of loss, (see MurUct 
 
 \Mliie.) 
 
 Estoppel .'IS to liniilalion Illl ii7!l 
 
 (And sec I jniiliil ion. I 
 
 Evidence (sec AetionH). 
 
 Ily p.'irol, adinil ted in cases of inis- 
 
 deseriplion liv aKciil 'J7I/( '.W! 
 
 Kiiles of, in mcI ioiiH on lire iiiHiirance 
 
 policies In r.S :tiM (iiid 
 
 do on life insurance 
 
 Iiolicies in (;. ,S. ;i!i| (Ui| 
 
 SnpportiiiK •■■itcntions of liotli 
 
 pari ics. ... :ii(.", ittiti 
 
 Mistake as t, day of inaturity of 
 
 policy '. ■.;ilt.-, (K!,-, 
 
 Excessive insurance of iiiraiii.s, 
 
 Out. Ins. .\et, 7,S0 
 
 Exemption of certain conipanlcH 
 
 under the Ins. .\el of Canaiia 7(Hl 
 
 do .^ 711 
 
 Of cerlairi soilcties from tlii- oper- 
 ation of the same Act .. 7I1( 
 
 Ex gratia paynieiil liy directors. ;ili| .''i7,H 
 Experts, Icstlfylnj; as to increjisc of 
 rif.U ;t((.l m) 
 
 Expiry of risk, on wiuti day . . .re' rm 
 
 Explosion (see Lialiililv for los.s.) 
 
 Of coal nas. Out. .Stat. Con 7I)1 
 
 do U. ('. do m;(5 
 
 Extension as uracc to pay preniinin, 
 
 loss wit hin Icriii 7;i pift 
 
 Extra premium, what, is . im) i(ir> 
 
 di 
 
 .1)1 HID 
 
 Failure to deposit, etiect of, Ont 
 
 _ '"«• '^'l 751 
 
 False statements in proof.s, de 
 
 llnil ion of , ;qi\ j;;)^ 
 
 In proofs of loss, and I''aise swi'ariiiK 
 
 (see l''raudiilcnl ( 'lainis.i 
 
 l''.ilse liiddcrs, insurance liy |."i| l'M 
 
 Fees pavahlc III I'rovinclal treasurer 
 
 Onl Ins. ,\c| ^,^, 
 
 I:.; al)le to treasurer in .M.irutolpa. . H'.'S 
 1 nder the I'-.d^n Corporations Acl, 
 •il Alanitoha nUli 
 
 Fidelity insuinnce, (see Nature 
 of Contiact .iiid (iiiarantiM- lii.sur- 
 
 _,. ■"'!".' ■» :«• dU 
 
 Fighting, death while, or violatin^l; 
 
 _. ''!•": ;tni CM 
 
 Firo insurance, origin of ti 7 
 
 IVovisions rclatiiif,Mo, C. C. I,. C ., . 7'Ji) 
 (ieueral piovisions rclaliiiK to eon 
 
 tracts of, Onl. Ins. Act 7,'^i^ 
 
 Conipanie.s, c.apilal stoeU of, Ont. 
 
 Ills. .\cl 7|._) 
 
 (See also l,i.ilii|i|y for I.osh.) 
 
 Fire Insurance Policy Act, 
 
 ( .Maniioli.'i) h"1 
 
 _, <H. C) '..'.'.['. .'.'.. m:i 
 
 Fire policies, duration of, under 
 
 I he Ins. .Act, of Canada ~\2 
 
 Firo Jind inland iiiariiie insurance, 
 iiro\ isioiis relaliiiK to, under the 
 
 Ills. .\cl of Can.ida 71| 
 
 l''ireani| iiilanil niarine iiisurai , de 
 
 tails of annual slaleinenlH under 
 the s.aine .\cl 71 | 
 
 First companies, format i.ui Of, 
 
 for ciniimercl.'il purposes anil 
 
 marine insnr.iiicc ,s 7 
 
 Foreign companies, secretary lu 
 
 ( 'aiiad.i ol, powers (d' HIUi ITiT 
 
 'I'lieir stains ill Caimila, eontract liy 
 llieii attents ii/tni r/;<'.s', pavnicnt 
 of preniiuiiis when eoinpany has 
 
 110 ollicc ill Camilla ! . . l(Mi d8;i 
 
 l.a« of ciimily |(|f| tw;» 
 
 Miisl Keep ollicc in Canada for re 
 ceipt of preminiiis, or cannot in 
 Mike forfeiture for iion paymeiil 
 
 of preniiunis ' kki (j.s;; 
 
 .\iiplicai ion for iusnrance In uii 
 
 licensed comiiany 117 (iKK 
 
 I.lclivery of policv Conslilutes coll 
 
 li"i''l' 117 (i.ss 
 
 What laws ^overi: policy |I7 (|,SH 
 
 Nol coniplyiiiK with statnles cannot 
 
 main lain action 117 dHi( 
 
 Wiudinsi up ill ('aiiada IIH lillO 
 
 Annual statenicntH reipiired under 
 
 the In.s. Act of Canada 7(l:i 
 
 Insiiraiice compauieH in ih(. United 
 Stales, their status, etc tl7 dH7 
 
 Foreign Corporations Act, 
 
 iManilulia hl1> 
 
I 
 
 ANAIiYTICAIi AND ALI'HAnKTrCAL TAHLK. 
 
 853 
 
 71'^ 
 
 71-' 
 711 
 
 I' 
 
 711 
 
 17 (WH 
 ■l 
 
 \- (iMK 
 (iSH 
 
 Is tillO 
 
 II 
 
 (1H7 
 
 H2» 
 
 l';u. IMK- 
 
 " Foroign jurisdiction." iikhh^ 
 
 iii;^ of liTin, < )iil. 111'.. An 7117 
 
 Foreign Law, (sn- ciaiin in om.) 
 Forest tiros, <()iwiiii(in ms lo :iiK iViii 
 Forfeiture, (irciuniiion i>.v rom 
 
 iiuiiv to work 77 Ul2 
 
 <1,; ,..H1 loH 
 
 'rt'iiipoiMiy violiillnii of (■(itidltioii 
 
 Nus|icn(ls risk 12H IIHI 
 
 Of pdlicy l>V luiio'-jiiici'. iclii'f nintil I 
 
 (•(I iiiriiiiis'i 2:17 2H7 
 
 I'li'vidiis ,11 rc|iliiiii'i' of priMiilimis | 
 
 lifter ili'fMiill iKil ii pnM'cdi'iil :illl ."ill j 
 Noil fi.rfcii iirt! cliuiNf, roiislriul Ion i 
 
 of •i'ti^i' ."'71) ' 
 
 liiirilcii of proof 'VXi IKl.". \ 
 
 l'"oifi'itiiii' 1111(1 ri'iicwnl of lIcrhHi's _ | 
 
 iiiidir till' Ins. All iif ('iiniiilii.7(Ki 711 
 Of rill piinilc powi'is, ( )n(. Ins. Acl . 7 i:i ; 
 
 ilo 711 
 
 ilo 7I(> 
 
 or Inni'lll ill frii'iiillv soricl V, iioilrc 
 
 hcfiiiT, Oiil. Ins. A'cI ' 7H.S 
 
 ( And •^iT Will TMiit Irs.) 
 Forms iciiniird ill coiinrrl ion willi 
 
 llii- iiiiiilliil sliilrnii'iils under I lie 
 
 Ins. Arl of ('iiiiiida 7I'I 
 
 Fraud, policy olilMined liy tiO PI 
 
 Nol presiii I unless over vuiiiiit ion 
 
 lie excesMve liW< K 
 
 l'";ilse suciiiint; \ il lilt inK''liiiin. , '2H2 II.S 
 (.See also p'riiiidnleiil Cliiims.) 
 Insolveiicv Hs iilleeliiiK lej^islry, 
 
 Oiil. Ins. .\el 7li:i 
 
 In p.'iyiiieiils of preininnis, smiie 
 
 Ael ■ 7.SI 
 
 111 proiifs of loss \ 11 iaies ehiini, Onl . 
 
 Sdil. Coiid ''■*- 
 
 do M.t'. 
 
 ■SI III. Ciiiid. ... .... h;)i1 
 
 <Alid see I'ro'ifs of loss.) 
 
 Fraudulent cancellation 
 
 I'iir I'uui. 
 
 Fraternal, ete., soeielies, exempt Ion 
 of, from t lie iiperiit ion of I lie Ins. .Ael 
 ■ if ('.iniidii . , ... 7ilt 
 
 FroiRht. iiisiinihle interc'sl in . liVi 'Jiri 
 
 " Friendly society," nieniiinK of 
 
 leriii, ( Int. Ins. \et 7:(7 
 
 Ineorpor.'ition ol, smiie .All .... 71(1 
 
 KeKister, Slime Ael I't^t 
 
 I •ill lit II I ion of memlier's liiiliilily 11 ml 
 
 ol her |iro\ isioiis, siiiiie .\il 7HH 
 
 Holes delivenilile on dem ind, siuih" 
 
 Ael 7«H 
 
 I.iipiidiilioii, voliiiilnry.Hiiinc y\el. . 7it7 
 I'lndinvnietit fund in ruse of voliiii 
 
 liiiy liipiid.'il inn, sume Ael. . .. 7lW 
 N'lilnes of lieiielliiiirics need nol lie 
 
 iliseiled 171 •dl't 
 
 Menelieiiirv leiidiiiL' iniiiiorjil life 'Jill HUM 
 Future wife, insnr.nH-e for lienelll 
 
 id'. Out. 111-. .\ct ... 7K.-. 
 
 (And see I'lelVrred lii'nellei.iries.i 
 
 Oaminf;'. or w.iirer polities . (ilr !i:< 
 (.See lllslliilllji' interest I. 
 
 General a^ent. niiiiioriiv to 
 
 ;i._oei for 11 reliiite of preiiiiiim H'.l.'i (Hi.'i 
 (See lllso ALtents.l 
 
 Oeneral meetings of iimiiimI 
 
 eolllplliii,.-,, ( lot . I MS. .Ael . 772 
 
 General proviHiona. leimiiiK lo 
 
 iii^iir.-iiK e, I '. ( '. 1.. ( ' . 721 
 
 Goods hold "ill trust or on enn 
 
 siellMlelll " :UII ."l.V.I 
 
 Government deposits. <>ni. Ins. 
 
 Ael , 7.10 
 
 Grace, len ' J" ]"';i 
 
 do 7.^ 21 
 
 I.OMs within lerni of e' MK' 
 
 ,1,, ;i.-.i .Mi2 
 
 of ' do 
 
 iis-imiiiieni I7!w '^^7 Guarantee contract in fnvor of 
 
 Fraudulent claims :!77 (i2ii 
 
 llllineelll o\ er \ ,il nil I ion doe-, not de 
 
 fi'lll reeovel V ;i7li (120 , 
 
 Over viiliiiition ., !t7H (1-27 i 
 
 Over esliiiuile ill prnol^ H7!Mi;t2 
 
 KlVeel ..f iii,idv..|lei\ee :I7!I (1:12 ' 
 
 .SiiHieieiil loestiililish fraud \i\ infer 
 
 ei :!7« 11211 
 
 Hre.iehes of warr.'inty iiinsi 'oeiii\e- 
 
 tiu'.iled when elaiiii is Hindi' :!7'.l (i;i2 
 Deliiiil Ion of false swe,iiiiiLC :i7'.Mi;il 
 
 l''alse HWearinu liiusi he m.it eiial lo , 
 
 work forfeit lire :i7!i (i:il j 
 
 do us III renewal id 11- I 
 
 eense lo feliiil liiplors. :i7!M'i:il 
 
 do Ms li> iwneiNhip.:i7!i (i:i2 
 
 Deeeil must lie to diiinatJi' 'd oliiin 
 
 IIIVh ;17« '!2H 
 
 Noil diseh lire of eiiiilinliraiiee :i7>i 1127 
 
 CoiieiMlii 111 of Ilo :i7ii (i:U 
 
 DIvisihililv . 2.'<i( IJJ , 
 
 einplnwr 27M I"} 
 
 ( liiiiriiiilee eoiilraels in (.'eiieral HI"! .li'l 
 
 ,1,, :illH Cill."! 
 
 "(iiiaiiiiitee ilisillilliee," ineiiiiintt of 
 
 teriii. Onl. Ins. .\el . .711 
 
 ( iiiaiaiilei' iiisii i .iiiee eoiiipa llies, 
 
 e.ipilal stoek of. Old. Ills. \el 712 
 
 ( I nil 'II 111 ee fund to insure the lidelilv 
 
 of II eompanv's own emplovees. 
 
 Onl. Ins. All' 7-"i'l 
 
 ( lirir.iiil ee eompaiiv'- lioial as seeiir 
 
 it V in ease of lM|iiidal ion of pnivin 
 
 eial liiHiirniiee inrporal ions In I )ii 
 
 lario . •■<'I2 
 
 I Iil.iiantee polieics as "sieiiiilv for 
 
 Ihe faithful eondiiel of piihlle oiil 
 
 eers" i New Itriinswiek >^^^ 
 
 Ciiaranlee and siiret v lompaiiies in 
 
 l>. K. 1 '. HI!) 
 
 Guardian, seenritv, hy Onl. Ins. 
 
 Ael .. 7H;t 
 
 l''nlse slatemelits In adjilslerhv lis- 
 
 siired's hiishand :i7iMi:tl l CrUnpOWdor. eondilioiis eoneern 
 
 {•'alse slaleineiit ill proofs ;i7i» (1"2 : Inu i.'i.'i .'UJ 
 
 l-'iirnishiiij: false voiieheis . ;i7!Ml;l2i l.oss hv explosion 2.)oi( :i.)l 
 
 Anieriean deeisions ;I7'.M1;11 | (joiil oil, ele., sloriiKe of, Out. Slut. 
 
 <See also .Addilioniil insiiraiiee, (limil, 
 
 'j'raiisfer). ' 
 
 7111 
 lio, M. C, Stat, Conil HMo 
 
854 
 
 INSURANCB LAW OF CANADA. 
 
 [Ji 'E 
 
 I'ar. Vanf 
 H 
 
 "Head Offloe," meauiiiK of term, 
 
 R. S. Q. 1888 731 
 
 do, Ont. Ins. Act 738 
 
 Health) material alteration in rink 
 an to health, etc., Vjefore tender of 
 
 premium 3o8a 575 
 
 Reprexentations as to (sec Warran- 
 ties). 
 Heat, loss caused by goods being 
 
 subjected to, Ont. Stat. Cond 791 
 
 do B.C. do 835 
 
 Heira, insurance by joint 158a 218 
 
 History of inanranoe i i 
 
 Researches as to antiquity of con- 
 tract '. 1 2 
 
 Insurance in parts of Asia 1 2 
 
 References in Talmud to insurance. 1 2 
 
 Insurance common in India many 
 centuries li.C 1 2 
 
 Insurance by Communes in Assyria 
 and the Klast 1 2 
 
 Insurance in China 1 2 
 
 Norman law, no trace of in.surance 
 contract in 2 3 
 
 Passages in Cicero's letters and 
 other writers do not warrant infer- 
 ences that Normans knew con- 
 tract 2 3 
 
 Reason for mistaken inferences. . . .3 3 
 
 Confusion of three elements of in- 
 surance comprising insurance con- 
 tract of today 3 3 
 
 Mutual insurance of Anglo-Saxon 
 guilds 4 4 
 
 Guilds common among Ancient 
 Greeks and Romans and Identical 
 with those of Anglo-Saxons of 
 later dale 4 4 
 
 First authentic traces of insurance. 5 4 
 
 Maritime ins\irance first to appear. 5 4 
 
 Introduced in Italy by liombunls in 
 13th century .....' 4 4 
 
 Lombards also introduced it into 
 England 5 4 
 
 Policies written elsewhere read, "to 
 be made according to the custom 
 of the Lombards of Lombard 
 street, London" 5 4 
 
 Custom of Fumes rc<|uiring town to 
 pay loss on house secretly burnt. 5 4 
 
 " Memorials of I,ondon," agreement 
 in 13()2 to keep liondon imiemni- 
 fied from tire in thatched houses. 5 4 
 
 Custom of Amsterdam and Chron- 
 icle of liruges 5 4 
 
 Scotch Act, R27, " The leave to mer- 
 chants to sure their gudes " 5 4 
 
 Ordonnances of Barcelona, Florence, 
 Genoa and Naples, Spain, Portugal 
 and Holland 5 5 
 
 Grant from Queen Flizabetli, 1574, 
 to make and register insurance in 
 London 5 5 
 
 43 Elizabeth, cap. 12 (1601), " An act 
 concerning matters of assurances 
 used among mercliants " 5 5 
 
 1314 Car., cap. 23 5 5 
 
 Earliest life assurance policy of 
 which particulars are possessed, 
 16th June, 1583 5 5 
 
 Par. Page 
 
 Marine underwriting in 1615 5 6 
 
 First appearance of legal works on 
 
 insurance 6 6 
 
 Condition of capital in Middle Ages.7 7 
 Articles of Hereditary Company, 
 1712, as to keeping money m 
 
 chest 7 6 
 
 Formation of first companies for 
 commercial purposes and marine 
 
 insurance 8 7 
 
 Origin of Are insurance 9 7 
 
 In Germany 9c 11 
 
 In United States 96 10 
 
 In France 9d 11 
 
 In other countries 9« 11 
 
 Origin of life assurance 10 11 
 
 In England 10 11 
 
 In United States 10a 12 
 
 In Germany 106 12 
 
 In France 10c 12 
 
 In other countries lOd 13 
 
 Accident insurance 11 13 
 
 In Great Britain 11 13 
 
 In United States 11a 13 
 
 In Germany 116 14 
 
 In France lie 14 
 
 In other countries lid 14 
 
 Agricultural insurance, hailstorm, 
 
 live stock 12 14 
 
 Division into tliree general groups. 13 15 
 
 Countries regulated by English law : 
 
 Great Britain 14 15 
 
 Canada 14a 15 
 
 United States 146 16 
 
 Countries regulated by French law : 
 
 France 15 16 
 
 Belgium 1.5a 16 
 
 Netherlands 166 16 
 
 Italy 15c 16 
 
 Spain Ifif/ 16 
 
 Portugal ISf 16 
 
 Greece and Koumania. . 15/ 17 
 
 Turkey and Egypt 15J7 17 
 
 Chili 15/1 17 
 
 Argentine Keimblic I5i 17 
 
 Uruguiiy and I'araguay 15; 17 
 
 Bra;cil. Mexico, Salvador, Nicar- 
 agua. Costa Rica, New (ireii- 
 ada, Venezuela, Peru, Bolivia, 
 llaytl, San Domingo, Guate- 
 mala and llDiiduras 15^ 18 
 
 Countries under (ieriiian law : 
 
 Germany 16 18 
 
 Prussia 16a 18 
 
 Other German States 166 19 
 
 Switzerland 16c 19 
 
 Austria-Hungary 16rf 20 
 
 Russia, Sweden, Norway and 
 
 Denmark ". .16< 20 
 
 .ilnsband and Wife, insurubic 
 
 interest \U t:t ,s«y/. 208 
 
 (Anil see Preferred benelleiaries.) 
 
 Hypothec on property does not i)ass 
 to the indemnity in hands of in- 
 
 sursr against lire ;153 567 
 
 Hypothec, insured not hound to 
 
 notify of, unless stipulated "145 557 
 
 Hypothecary creditor (see 
 
 Creditor). 
 

 7 
 
 
 7 
 
 
 11 
 
 
 10 
 
 
 11 
 
 
 11 
 
 » 
 
 11 
 
 t 
 
 11 
 
 . 
 
 12 
 
 ) 
 
 12 
 
 
 12 
 
 I 
 
 13 
 
 I 
 
 13 
 
 1 
 
 13 
 
 I 
 
 13 
 
 > 
 
 14 
 
 c 
 
 14 
 
 i 
 
 14 
 
 16 
 16 
 16 
 16 
 16 
 16 
 17 
 17 
 17 
 17 
 17 
 
 18 
 
 18 
 18 
 19 
 19 
 20 
 
 20 
 208 
 
 567 
 557 
 
 ANALYTICAL AND ALPHABETICAL TABLE. 
 
 855 
 
 Par. Page 
 1 
 
 Identity of goods insured . . 130;i 200 
 
 do IHl 202 
 
 do i:» 205 
 
 do 155/j 216 
 
 Of buildincc. extrinsic evidence in 
 
 admis8il)le HOI 0(iO 
 
 Of property :}49 559 
 
 niegal in'suranoe. (see Insnrnble 
 Interest). 
 
 Incendiarism, (see Arson.) 
 Incontestability, etrect of clause 
 
 of, (see Suicide). 
 Incorporation of joint stock com- 
 panies, Ont. Ins. Act 741 
 
 Of Friendly Societies, same Act 746 
 
 OfTrade Unions, etc., same Act 748 
 
 Increase of risk, wliat is 00 165 
 
 do 91 169 
 
 Testin)ony of experts 394 660 
 
 Occupancy of premises, question of 
 
 fact for the jury ;«>4 663 
 
 (See also Ijiubilily for Loss, Risk and 
 Warranties). 
 
 Infant beneficiaries, payment of 
 
 insurance money in case of, Ont. 
 
 Ins. Act ". 782 
 
 Infants, investment of shares of, 
 
 same Act 783 
 
 (And see I'referred hcneliciaries.) 
 
 "Inland marine insurance," 
 
 meaning of, Ont. Ins. Act 741 
 
 do in Alanitoha 826 
 
 Innkeepers, msurance liy 149 214 
 
 Insanity, cll'ect of, (see Suicide). 
 Insolvency 'of company, appoint- 
 ment of as.sigriee under the Ins. 
 
 Act of Canada 717 
 
 Of company, claims of policy holders 
 
 under the same Act ." 717 
 
 Distrihution of assets under the 
 
 same Act 718 
 
 Re-insurance in case of life instiraucc 
 
 comiianics under the same Act 717 
 
 As allectiiifi rejiistry 704 
 
 (Sec also Aneiiis anil 'I'ran.sfcrs.) 
 Insolvent companies, jjavment of 
 
 dividends hy, J{. S. Q. l.sss TM 
 
 Inspection of hooks of insurer liv 
 
 claimant, Out. Ins. Act ". 782 
 
 Of insurance companies licensed by 
 
 the province, Ont. Ins. Act 795 
 
 "Inspector," meaning of term, 
 
 same Act 737 
 
 Contribution to expenses of olHee ol, 
 
 Onl. Ins. Act 7i»6 
 
 Institute, insurable interest of. .144 211 
 Insurable intercut, general re- 
 
 m.-.rkson 119 ISO 
 
 InQuelR'c 1226 liH) 
 
 C. C. L.C "21 
 
 do 724 
 
 do 729 
 
 do 731 
 
 In Ontario I22n UK) 
 
 In United States must be pleailed 
 
 and iiroved 125 103 
 
 Griswold on 129 19(1 
 
 What is, mu^t be speeiOed 119 1S6 
 
 do 122 m 
 
 Par. Pago 
 Undercommon law not necessary. 125 193 
 
 In a life, who liave 124 ISW 
 
 do 1226 191 
 
 Insurance by person on his own life 
 for benettt of another who pays 
 
 premiums l"(M 219 
 
 Policy on one's own life payable to 
 
 another T 170 222 
 
 In one's own life, Ont. Ins. Act 781 
 
 In life, sullicient at time insurance 
 is eirected, though afterwards 
 ceasing, no claim by insured's 
 
 representatives 185 231 
 
 Father insuring his son, though 
 policy held illegal, yet as bet ween 
 the fat her and estate of son, father 
 
 could retain the money 3.58 .575 
 
 In son-in-law 358 .575 
 
 In a wife, names of parties inter- 
 ested, to be inserted ;f)8 .575 
 
 In life of adopted child 172 221^ 
 
 In life policy taken to cover ex- 
 pected outlays i86 2.31 
 
 Insurance eU'ected with intent to 
 
 murder 175 225 
 
 Friendly societies, name of l)ene- 
 
 ficiary need not be inserted . . . .174 225 
 Mutual benellt association, insur- 
 ance in favor of one with no inter- 
 est 182 228 
 
 Assignment to party with no 1(')8 221 
 
 do 17S<i 226 
 
 Where transfer of life policy to one 
 witho\it insurable intere>t is null, 
 transferor may recover instirance 
 
 money from transferee IHl '228 
 
 In Alaliama, assigru'c of life policy 
 
 must have insurable interest . llUb 227 
 In Illinois, benellciary or trans- 
 feree of life policy need have no 
 
 insurable interest.' 1. SO '227 
 
 do 1S2 228 
 
 Supreme (Jourt of Uiiitetl States 
 
 hold null transfer of life policy to 
 
 one without insurable interest .181 227 
 
 Transfer of life policy in Mississippi 
 
 to one withotil insurable interest 
 
 183 220 
 Insured cannot recover more than 
 
 his loss 110 187 
 
 In lire insurance, person with 
 limited interest may insure an<l 
 recover whole value, if policy 
 
 expresses this 119 187 
 
 Must be legal 121) 188 
 
 do 129 196 
 
 In tire policy must exist at time of 
 
 loss, not so in life policy 123 101 
 
 In geiu'ral particular interest lu'cd 
 
 not be stated VVUf 199 
 
 I'artU'snot bound to state unasked, 
 
 exact nature of inteiest ... . 193<f ■2i^9 
 Snecillcation of interest . . . 135 ft sfq 205 
 Tliere must be pecuniary interest 172 224 
 Person may Insure for'himself and 
 
 others 110 187 
 
 Under certain form of policy, person 
 with limited interest may insure 
 
 total value and recover IIO 187 
 
 Perfect title not necessary 1,'<6 206 
 
 Subseipiently aciiulreil 156 216 
 
^ii 
 
 856 
 
 INSURANCE LAW OP CANADA. 
 
 1^1 
 
 «'t 
 
 P:ir. Page 
 
 Necessary to support contract, Out. 
 
 Ins. Act 780 
 
 Decisions tend from strictness to 
 
 liherality 1*1 192 
 
 Doctrine of, not based on logical 
 
 princiijles 125 193 
 
 Action liy j-urvivinn partners Iti!) 221 
 
 Advances made on property l(iH 219 
 
 Banli lioldinK wareliouse receipt. i:jl 201 
 Hill of sHfle of ship, in.surance by part 
 
 owner lUO 207 
 
 By joint holders l.jH 218 
 
 Not ad'ected by colorable transfer of 
 
 niortRafi-e 142 210 
 
 Colorable lease to warehouseman 
 
 does not allect risk 1 13 211 
 
 (!!onnnon carriers .l'M)(l 108 
 
 ConiiH'nsation is not mere market 
 
 value of thiuKlost 119 188 
 
 (See also Market value.) 
 Of consignees and connnission mer- 
 chants i:(0<' 199 
 
 Dnralion of, subse(iueiitly accpiired 
 
 inli'i'cst 127 19") 
 
 Coiitinuil v and duration of 12S 190 
 
 Interrniition of 128 100 
 
 Claim liy iioslponed l)()nd holder, re- 
 
 insliili'nient, rent of mortgaged 
 
 preiiii^es 1 18 213 
 
 Creditor's interest need not be 
 
 exactly amoiinl of policy 12.5 191 
 
 Creditor may recover full amount of 
 
 insurance though his claim be less 
 
 125 194 
 Creditor's interest, life and lire. .121 192 
 Crediloi's interest extinguished on 
 
 p.iyment of debt a-* bi'tween 
 
 creditor and debtor 125 191 
 
 Creditor who is paid may still collect 
 
 ;uid keep insurance moneys in cr- 
 
 taiii (•■•iscs ' 125 191 
 
 ("If .judirmeni creilitor 13.'^ 207 
 
 I'npriviU'ged creditor, no interest 
 
 13S,f 207 
 (And see Creditoi.) 
 Kmplover and einplovee. as^imice 
 
 Itll 219 
 Kfpiitable interest sudicieiil . 1 III 207 
 
 do 103 219 
 
 I'^'.iudnlent cancellation of IraM-^fer 
 
 to oiu' having no insurable intiT- 
 
 est \-\H 227 
 
 In freiuhl l.")5 215 
 
 Cionds held in trust, deposited with 
 
 ndller 135 205 
 
 In goods furnished on board \ essel 
 
 1.57 217 
 Of holder of eiptity of redeujption 129 19(1 
 In thing not in existence or not yet 
 
 ac(|\iiLi'd b"i5^ 215 
 
 In prollts 155 215 
 
 In increaseil value 15."i(j 215 
 
 Ilnsband ,uid wife lll»7.s»v/. 208 
 
 (Anil see Preferred beneltciaries.) 
 Institute di'elaring himself ownerlU 211 
 If company ptiys parly who luis no 
 
 insurable interest lie may hold 121 293 
 Indemnitv .tgaiiisl loss on propertv 
 
 illegally held, etc ...120 188 
 
 Insurance by w.irehonseinan . . . . 130c 197 
 In prospect ive earnings 129 190 
 
 Par. r.igo 
 
 Identification of goods 
 
 131a, 132, i:« 201 
 
 Identity of goods insured i;i5 205 
 
 Of agent 130f 190 
 
 (And see Agents, Identity.) 
 Liability of owner to indemnify 
 
 neighbor 14/ 213 
 
 Lessor and lessee 145 211 
 
 Mortgagee, assignment 137 206 
 
 Mortgagor has, i-ven after he ha.s 
 sold propertv subject to mortgage 
 
 205 247 
 Merchandise on trust and connnis- 
 sion for which the assured are res- 
 ponsible Uiiifi 205 
 
 Insurable interest of Imrrower. . .1,52 214 
 Plndorser on accommodation bill 
 
 177 220 
 
 Innkeepers 149 214 
 
 Minois 102 218 
 
 [,'snfruciuary and institute . . . .141 211 
 
 Partners 1.50 218 
 
 do 170 225 
 
 Pawnbrokers 1.50 214 
 
 Stockholder 100 218 
 
 KaKse bidder 151 214 
 
 IJeiu'tlciary heirs, tutors, as- 
 signees of bankrupt estate, 
 churchwardens, trustees, etc. 1.53 214 
 
 ^'endor agreeing to sell 131 203 
 
 Sale with right of redemption. . . 317 4S9 
 Sti|)\ilation that policy shall be proof 
 
 of iiitert-st ". 121 180 
 
 Stipulation "inti'rest or no interest." 180 
 
 Substitution of goods 133 203 
 
 Stoppage in /raiislfK 13l(/ 205 
 
 <See aNo (Creditor). 
 
 Wager policy 178 220 
 
 do (and see Wager) 182 229 
 
 " Insurance." dednition of term, in 
 
 C. C. 1,. (^ 721 
 
 Principal kinds of, ('. C. L. C 722 
 
 What it includes. Out. Ins. .Vet 739 
 
 Of the person, what it includes. (Jul. 
 
 Ins. Act 740 
 
 Of I lu^ (lersou, geiu'ial provisions, 
 
 siime Act 770 
 
 Diil'ereut kinds of, (see .Nature of 
 
 eoiitraet). 
 Company, mcuiing of term, 1?. S. i)., 
 
 l.'<88 731 
 Corporntioi:, meaning of term, Out. 
 
 Ins. .\ct 739 
 
 Fimd, meaning of term, same .\ct . . . 739 
 ("iimijany Uegisli'r, do . , 754 
 
 .Moui'y. how jiayable, do . . . 782 
 
 Other th.in lite, lire or iidand marine 
 
 under the Ins. ,\et ofC.inada 712 
 
 On the cash plan, nu'aning of term. 
 
 Out. Ins. .\ct 740 
 
 Termiju\ble on notice. Out. Stat. 
 
 C(uiil 792 
 
 do n. C. Stat. Cond. 8;i0 
 By creditor, (see Creditor.) 
 Oi' goods held in trust or on consign- 
 ment 349 5,59 
 
 On joint account 1.58 218 
 
 By married women 141 <■/ .ici/. 208 
 
 (.And see I'referred benelhiiaries.) 
 
 Ilndei' conlrftct of nnirriage 171 223 
 
 MoiU'ys wliere payable 38(1 051 
 
ANALYTICAL AND ALPHABETICAL TABLE. 
 
 857 
 
 7.V.) 
 
 ild 
 
 77l» 
 
 :{1 
 
 7:«) 
 754 
 
 712 
 710 
 7! 12 
 
 21H 
 
 20H 
 
 22;t 
 (t,>» 
 
 I'ar. Vane 
 
 Policies are moviil)Ii> estate IT-i 224 
 
 Against loss to iiciglilx))' 147 213 
 
 Insurance Act of Canada ()!)5 
 
 Amui;il returns by companies 7Hl 
 
 Annual statements hy fore:;;n com- 
 panies ' 7(12 
 
 do . . . 71S 
 
 Ai)plicali()n of (ilHI 
 
 Application of moneys from assess- 
 ments ■ 710 
 
 Assurance of annuities to debar from 
 rcyiistration as assessment com- 
 pany 710 
 
 Classes of l)usiness that may or may 
 
 not lie (lone to;j;ether ". '. (i9(> 
 
 Companies ceasinjj to do business 
 
 and release of deposits 707 
 
 do 712 
 
 do 7|,s 
 
 Conditions on policies 700 
 
 l)ei)osits to be made before tlie issue 
 
 of license 09S 
 
 Oelailsof annual statements in fire 
 
 and inlanil marine insurance 711 
 
 Details of yearly stalemcnt, lift' in- 
 surance .' 7l;{ 
 
 Disposal of assets in case of com 
 
 panics ceasinv: to do business 707 
 
 Documents to be tiled Oil!) 
 
 Kxeni))tlun of certain eoni|)anics. . . . 70'J 
 
 do 711 
 
 Exemption of ocean marim- insur- 
 ance 713 
 
 do of certain societies 710 
 
 Expenses of oUice of siipcrintcndcnr. 70") 
 
 do 712 
 
 Fire policies, dtirat ion of 712 
 
 Forlciture and removal of li<'enses . 700 
 
 ilo 711 
 
 Hou reserv e shall be calculated .... "IW 
 IiisoImiu y of company, distribution 
 
 of assets ". 71S 
 
 riisurance other Ih.in life, lire o|- 
 
 inland marine 712 
 
 fiisunuK-e on deposits (iiii) 
 
 liitcrprelation of premitini 700 
 
 Licenses lillf! 
 
 liiceiise and deposits in case of 
 mutual or assessment life insur- 
 ance companies 70il 
 
 liimitalion of special Acts of Incor- 
 
 por.ilion 701 
 
 Limitallon of lime for prosecution 
 of companies In defauli under the 
 
 Act 701 
 
 Iiosses snslained after slatiinent of 
 
 outstandini; poliej'-s 71.S 
 
 Misstati'ment of ap- 7iKI 
 
 iMiilual or assessment life insurance 
 
 companies 70!) 
 
 Not ice of license 700 
 
 I'enall ies imposed upon compiinies. 70.! 
 I'enalties In c.ase of assessnieni com 
 
 panics 711 
 
 '• roliey holder " dellned 7(W 
 
 Power ot at loriiev to be tiled 700 
 
 Provisions relal in.u' to life insurance. 7011 
 ilo rel.il inuMo (ireaild inland 
 
 mnrine insurance 711 
 
 do in casoof eonipiinv becom- 
 ing insoUeut 717 
 
 far. I'iiuH 
 Publication of liiensod coniiianies.. . 701 
 
 Kclease of suri)lus secni'ities OilO 
 
 Service of comiianics with process . 700 
 Statements and rlocunients to be 
 
 lile<l (199 
 
 Superintendent and his duties 704 
 
 Surrender values 708 
 
 I'nconstllulionality of some of its 
 
 l)rovisions .' :j4 (i.j 
 
 What records must be kept at chief 
 
 "!^'''ley 702 
 
 Insured, (see Assure.l . ) 
 .VncI " .\ssurcd,"distincti(m between 
 
 terms 170 225 
 
 Must lake ordinary steps to prevent 
 
 loss ;{|,i 5 
 
 "Insurer."' nnsmiiiK of term, Out. 
 
 Ins. .\e| 7;{i) 
 
 Intemperance, (see Warranties). 
 
 Interest, assessment Miion. . . l(K) 009 
 <hi (lepiisits under the Ins. .Vet of 
 
 Can. Ida 099 
 
 Measure of, C. C. L. (' 7;il 
 
 t'n nionevs deposited bv receiver. 
 
 Out. Ins. Act .' ,S00 
 
 Puns on el.'iini from lime it Is din<, 
 or from time whi'u claimant co'.ild 
 
 give disch.-irjie 12.") I!i;{ 
 
 On insurance i laiuis :!!ll lu!) 
 
 On lite assuraiu'c el.ilm payable lor 
 wrongful withholdini; of monev 
 oidy :«)l ().->9 
 
 Interim receipt, insurance nmler 172 
 do 07 it fii'i/. 
 
 .Vol policies. 97 172 
 
 do 110 179 
 
 Delinition of s 
 
 Coiidiiionof which iiisnre<l was un- 
 
 auaie 1(« 17-") 
 
 Condil ii)ns (.. ordinary policies held 
 
 iiiit lo applx 11;! l.-^l 
 
 Held subject to ordinaiv conditions 
 
 of |)oiicy '. 117 1S2 
 
 t'onditions to be read into 97 173 
 
 .Stalutorvcoiidil ions are reail Into IIIO 177 
 
 do.. .' lOil 179 
 
 Terms of policv cannot enlarge or 
 
 var,\ it . .112 l.-^l 
 
 .Stipulation thai it is snbjeet locon- 
 
 dll ions 1)1' pnlieies 11 1 l.s| 
 
 \ot estjiblishine; pavment of pre 
 
 ininm ' 100 17:! 
 
 laidofsemenl on applicalion nn. 
 
 known to insured Ill 179 
 
 Fiitigat ion over 99 173 
 
 Agent neglect lug lo forward apiillca- 
 
 tion to comp.aiiy 10:; 174 
 
 .\gent negl<Mting'todeli\i'r policy 110 ]S:i 
 .Slip of polic\ held bindinii, no condi 
 
 lion as lo issue of policy. M.Jl .")71 
 
 My mntual conipan.v. 10.") 175 
 
 'Stating head ollice only may deter 
 
 mini' issue of p.)licy. |ueininni re 
 
 ceipl dilVerinL'- . ' . 104 175 
 
 Nolli-c of laneellat ion neccsHarv. 
 
 stanitory condition applied .. 107 177 
 To cancel nol ice must reach Insured, 
 
 where contract Is not repudiated 
 
 but merely put an end to Ill l.so 
 
858 
 
 INSDRANOB LAW OV CANADA. 
 
 
 S"l>' 
 
 Par. Page 
 Notification of cancellation before 
 
 loss necessary 108 178 
 
 Notice of cancellation received after 
 
 fire 113 181 
 
 Binding slip may be cancelled by 
 
 insurtr, it Ih subject ta terms of 
 
 insurer's ordinary policies 118 118a 183 
 Mere lapse of, not Lcrminating 
 
 risk... 101 173 
 
 Intimation to terminate risk must 
 
 be given 102 174 
 
 Insurer may terminate risk 115 182 
 
 (See also Additional in.suraii'^e and 
 
 Agents.) 
 
 Interpretation of policy, cus- 
 tom (see Construction) 267 386 
 
 Of premium under tiie ii; of 
 
 Canada . .700 
 
 Of various terms, Ont. i.if ^37 
 do _ in Man" !i25 
 Interruption of insumute in- 
 terest 15(1 210 
 
 Intestacy, (see Testucy,* 
 Invasion, etc., Hiihilitv ia eiiMi ^^ 
 
 Out. Srat. Cond 79(1 
 
 Lialtility in case of, B. C. Stat. Cond. 8Sr 
 Inventory, demand of, destroyed in 
 the lire, (see I'roofs of loss.) 
 
 Investigation of fires, Ont. Ins. 
 
 Act (see I 'roofs) 704 
 
 Investments, permissil)le, Ont. 
 
 Ins. Act 768 
 
 J 
 
 Joint action by insurer and in- 
 sured against wrong-doer causing 
 loss (see Actions) :Ki;i ,560 
 
 Joint owners, insurance by.... l.^S 218 
 
 Joint stock companies, j incor- 
 
 poiiitioii of, Oiil. Ins. Act 741 
 
 Jurisdiction of Parliament 
 
 and legislatures 32 64 
 
 Discussed in Supreme Court and 
 
 Privy (Council ;i6 60 
 
 ■lurisdiction in insurance ca.ses. .386 6,"i4 
 Jury (see Verdict). 
 
 Just and reasonable, condi- 
 tions must be ;i49 ,349 
 
 Condition di.scussed ;J23 504 
 
 ('Oiulitlon as to tran.sfer 259 3.59 
 
 Vfiriat ion 40;H 673 
 
 (See Conditions). 
 Justice, death l)y the hands of, C. 
 
 I'. I-. C 731 
 
 do Duelling or suicide ;183 645 
 
 K 
 
 Knowledgre of company, held 
 
 in U.S. not to estop them 322 498 
 
 (See also Agents, Waiver, War- 
 ranties). 
 
 Landlord and tenant, (see Lessor 
 
 and Lessee). 
 Lease, clause as to lessee paying 
 
 extra premiums .". 00 165 
 
 do 01 109 
 
 Pur. Page 
 
 Colorable, does not affect risk 143 211 
 
 Legal works on Insurance, first 
 
 appearance of 6 6 
 
 Proceedings, (see Actions.) 
 Representative, to whom the term 
 
 refers 379 632 
 
 Or lawful heirs, meaning of term, 
 Ont. Ins. Act 740 
 
 Legislation, Dominion enactments 695 
 
 Quebec 
 Ontario 
 Nova Scotia 
 New Brunswick 
 Manitoba 
 British Columbia 
 P. K. Island 
 
 Enactments 721 
 
 do 736 
 
 do 815 
 
 do 815 
 
 do 821 
 
 do xia 
 
 do 818 
 
 On preferred beneficiaries (see chap. 
 
 viii.) 
 Of Dominion and Ontario as to all 
 conditions being set out in full on 
 
 policy 2.52 352 
 
 On warranties 268 392 
 
 7 Qgrislature, powers of 32 64 
 
 .iVleaiiing of term, Ont. Ins. Act 737 
 
 'j in Manitoba 825 
 
 Lessor and Lessee, agreement to 
 
 insure 130 197 
 
 Insurable interest. ... 145 211 
 
 Levy on property insured, condition 
 held to apply to movables only. 265 375 
 
 Lex loci contractus 92 170 
 
 Place where I'.ction may be brought 
 
 386 654 
 (.\nd see Action.) 
 
 Liability in case of loss, C.C.L.C. . . 725 
 
 do 729 
 
 On premium notes, Ont. Ins. Act.. . . 771 
 Where none attaches, Ont. Stat. 
 
 Cond 790 
 
 do B. V. Stat, cond .S35 
 
 do Man. do 823 
 
 Burden of proof of suicide 395 665 
 
 AVHiere limited to two-thirds of 
 
 value 398 668 
 
 Denial of, (^ee I'roofs of Loss). 
 Liability for loss, division of loss on 
 
 ashes damaged by water 345 5,55 
 
 Two-thirds clause. ' 345 555 
 
 Property which may and may not 
 be insured, and property which 
 nuist be specially mentioned. . .345 653 
 
 Fault of servants of insured 345 5,52 
 
 Fraud or gro.ss negligence, causing 
 
 tire 34.1 551 
 
 Mow fire must occur, extent of dam- 
 age recoverable, etc 345 551 
 
 Covers whole loss to extent of sum 
 
 insured 345 5.5;j 
 
 I'avment ex yrnlin by directors. ..'161 578 
 " L/'hange " in lisk held to be synony- 
 mous with " increase" of risk. .345 5,56 
 Change in risk from vinegar factory 
 
 to tavern 345 556 
 
 Change in risk, insurance against 
 fire of a steamer in dock does not 
 cover it while moored in river, 
 
 locality of importance 3,")5 671 
 
 Increase of risk, steam thresher near 
 barn :W5 tm 
 
IV 
 
 ANALYTICAL AND ALPHABETICAL TABLE. 
 
 859 
 
 725 
 729 
 771 
 
 653 
 
 552 
 
 |5 551 
 
 55:} 
 
 578 
 
 556 
 
 . 55« 
 
 671 
 
 550 
 
 Far. Vage 
 Dangerous gas machine held in- 
 crease of risk 345 556 
 
 Identity of proporty iUi) 559 
 
 (And see Identity.) 
 
 Forest fires, condition as to 348 559 
 
 Damage by explosion, definition of 
 
 "gas" 347 558 
 
 liOss by removal or tlieft at a fire 34(i 557 
 Loss not total as long as part of 
 
 building remains 345 555 
 
 Increase of risk, illegal use of 
 
 building ;145 556 
 
 Liability for los.ses. Waiver of con- 
 ditions, subrogation, arson etc. 34i 505 
 (See also Loss). 
 
 Licenses under Ins. Acts 690 
 
 do 20 44 
 
 Interpretation of term in .same Act. .896 
 
 Notice of, under the .same Act 100 
 
 And deposits of mutual or assess- 
 ment life insurance companies 
 
 under the same Act 7()9 
 
 For business other than life, (Ire or 
 
 inland marine insurance 712 
 
 What is necessary to obtain one, in 
 case of l)enevolent and mutual 
 benefit associations and mutual 
 insurance companies. It. S. Q. 1888. 733 
 Provisions relating to, in Manitoba.. 826 
 Forfeiture and renewal of, under 
 
 the Ins. Act of Canada 7(16 
 
 do 711 
 
 Forfeiture of, by failure to depo.sit, 
 non-payment of claims, etc.. Out. 
 
 Ins. Act 751 
 
 Of company, suspension of, same Act 7!16 
 
 Cancellation of, in Manitoba 828 
 
 Hevocation of, do 832 
 
 liiccnsed companies, publication of, 
 
 under the Ins. Act of Canada 701 
 
 ■' Licensees," interpretation of term, 
 
 Ont. Ins. Act 764 
 
 Licensing of insurance companies, 
 same .'let 763 
 
 Lien for premium paid 207 248 
 
 Life insuranoe^ provisions relat- 
 ing to, under the Ins. Act of Can. . 706 
 Details of yearly stalement, under 
 
 the same Act 713 
 
 Provisions relating to, C. C. Ii. C 730 
 
 What policy contains, do .... 730 
 
 Life-rent do 7:10 
 
 Transfer of policy, do .... 731 
 
 How sum insured may lie made pay- 
 
 aljle, same Act ." 731 
 
 I'olicies, conditions of 201 :J70 
 
 Transfer of policy to another with- 
 out interest who pays premiums. . 
 
 104 105 21S 
 Trajisfer to one with no interest. .108 221 
 Payable to another with no interest. 
 
 170 222 
 Money not payable to |)arty causing 
 
 death feloniously 183 229 
 
 Policy is not an assurance for a 
 single year with privilege of re- 
 newal 360 662 
 
 Salvage premiums, reimbursement. 
 
 208 261 
 (.\nd see Warranties, Transfers, In- 
 surable interest.) 
 
 I'ar. Vafte 
 
 Lightning:, liability for loss caused bv, 
 Ont. Stat. Cond..'79l 
 do do Man. do .824 
 
 do do B.C. do ..836 
 
 Limitation of actions 403 671 
 
 Unaccepted tender not an interrup- 
 tion, maxim ruiitra non lalentem 
 
 not applicnl)le 403 076 
 
 ^^ S. decisions 404 676 
 
 When it begins to run 404 677 
 
 Waiver of 4(M 078 
 
 Payment to mortgagee not a waiver 
 
 404 679 
 Kules of law upon estoppel . . . .4(M 679 
 
 In accident insurance 404 077 
 
 In case of minor lieneflciaries. . .404 678 
 
 Ont. Ins. Act 779 
 
 Ont. Stat. Cond 793 
 
 Man. do 825 
 
 H.C. do 837 
 
 (See also Prescription.) 
 Of time for prosecution of com- 
 panies in defaiilt under the Ins. 
 
 Act of Canada 704 
 
 Limitation of prosecutions, Ont. Ins. 
 
 Act 706 
 
 Of special Acts of Incoiponilion 
 
 under the Ins. Act. of Canada... 704 
 Of menil 't's liability in friendly so- 
 cieties, ' Int. Ins. Act 788 
 
 As to place where suit may be 
 In-ought 405 680 
 
 Liquidation, voluntary, of provin- 
 cial insurance companies, Ont. 
 
 Ins Act 790 
 
 Voluntary, of friendly societies, 
 
 same Ai't " 797 
 
 CompulsDry, of provincial insurance 
 
 corponitioiis, same Act 799 
 
 Provisions relatintf to, in Manitol>a 829 
 
 Costs, priorities, Ont. Ins. Act 808 
 
 Live stock iMsunmce companies, 
 
 capital stock of, Ont. ins. .Xct 742 
 
 "Lloyd's" registralioii of, Ont. 
 
 Ins. .\ct 765 
 
 Loans on appropriateil |)olioles. (see 
 
 Prt'ft'ired (lenetlciaries.) 
 "Lodge," nieaiiinjrof, Ont. Ins. .-Vet 7:ih 
 Loss, (see Liability for loss, Market 
 value, N'()ti<'e. Proof of loss.) 
 
 Liability in case of, C. C. L. C 725 
 
 do .■ .^ 720 
 
 Duties of insured in case of,C.C.L.C. 726 
 do after. Ont. Ins. Act 778 
 
 Notic'c of, in Quebec, C. C. L. C 721 
 
 Proofs of, do 721 
 
 Nullity of insurance elFecled after, 
 
 sami' .Vet 72;} 
 
 I'artial, covered by several com- 
 panies, same Act 725 
 
 Sulirogation of insurer on payment 
 
 of, same Act 7:10 
 
 Insurer's right of entry after, Ont. 
 
 Ins. Act.. 778 
 
 When payable, Ont. Stat. Cond 792 
 
 do" H. C. do 836 
 
 Variation as to time of payment 268 XHi 
 Losses sustained after statement of 
 outstanding pollcie.". Ins. Act of 
 Caiuvda 718 
 
 I J 
 
860 
 
 INSURANCE LAW OP CANADA. 
 
 
 I'ar, Pago 
 (Jutstaiuliiij;. conunent of Superin- 
 tendent of insurance rc^iiirding 
 statements of 8;)9 
 
 " Lost or not lost," stipula- 
 tion 'Joft 170 
 
 Lost Policy, insurer payinK is suf- 
 (icienily indeinnilied l)y tlie de- 
 cree . . .' :ji5H/> 576 
 
 Magistrate's certificate (see 
 
 Proofs of loss). 
 
 Manager, .•uuhority of 7:f loo 
 
 (See AgenU. 
 
 Manitoba lenislation on preferred 
 
 l)ene(iciai-ies lM;) :m 
 
 Legislation on warranties, etc :i()S :ii)2 
 
 Insurance Aet H25 
 
 General enaetnients H21 
 
 Statutory eouditions of lire insur- 
 ance contracts : 
 
 Actions, limitation of 825 
 
 Aptent. pioof uf loss nniv lie 
 
 made by '. . .824 
 
 Arbitration in case of ditlcrences 
 
 as to amount of loss 824 
 
 AssiiTument of projierty without 
 
 written permission . .' 82U 
 
 CluinLC(Mis toiisk, when it sh.ill 
 avoid itolicv, notice of change, 
 
 ^ etc 823 
 
 Claim, directions to be observed 
 
 on makini; 824 
 
 Explosion of coal gas. liability 
 
 for loss caused by '. 821 
 
 l'"rau(! in proofs of loss vitiates 
 
 claim 824 
 
 Gunpow(lt!r,coal oil, etc., storage 
 
 of 823 
 
 Hoat, loss caused l)y goods being 
 
 subjected to ;-;23 
 
 Insurji-.ice terminable on notice. .'^25 
 Invasion, etc., liability in case of 823 
 Inability, where nonealtaches. . ,■^23 
 Lightning, liability for loss 
 
 caused by ' 824 
 
 Limitation of actions 82.5 
 
 Loss, when p.iy.able ,S24 
 
 Misrepresentations or omissions ,822 
 Money, securities, etc., not in- 
 sured 823 
 
 Non-owtuM'ship, liability in case 
 
 of ; .823 
 
 Oflicers of comi)any, when deem- 
 ed agents 82.5 
 
 Partial il.iniage, salvage 823 
 
 Plate, paintings, clocks, etc., not 
 
 insured unless menlione(l .... 823 
 I'olicy sent to t)e deemed as ap- 
 ])lied for unless vrtriance point- 
 ed out 822 
 
 Prior or subsequent insurance . .823 
 Proof of los.s to be made bv as- 
 sured ;.... 824 
 
 Proofs of loss, fraud in, vitiates 
 
 claim 824 
 
 Proof of loss may be made by 
 
 a.gent 824 
 
 Reinstatement, right of 825 
 
 I'lir. l':lg.. 
 
 Repairs by carpenter>, etc., loss 
 
 occurring in consciiucnce of. . . 823 
 Hiol, invasion, etc., liability in 
 
 case of 823 
 
 Stoves, etc., li.ibility where loss 
 
 is c/iuscd liy defects in .823 
 
 Subse(|Ueiit insurance .823 
 
 Termination of insurance on 
 
 not ice 825 
 
 Waiver of conditions .825 
 
 Written notice, what consti- 
 tutes it .825 
 
 Marine insurance, provisions appli- 
 cable to liie an(l life contracts, 
 
 C. C. L. (• 72;{ 
 
 Market value, price of goods in- 
 
 snre<l, as a criterion of value. . 345 .554 
 Value as a guide to estim.ite of loss 
 
 134/; 204 
 
 do as estimate of loss 1.5.5rt 215 
 
 do insured m.iy recover more 
 than market value of thing lost. II!) 1.S8 
 (And see Value.) 
 'Master." interpret.UiDn of term. 
 
 Out. Ins. Act m^i 
 
 Materiality of sluemenls in appli- 
 cation, Oni. In>. .\ct 778 
 
 (And sec Warranties.) 
 Maturity of policy, evidence to 
 
 show mistake 305 ()05 
 
 Meaning of tiM in, Onl. Ins. Act 73!) 
 
 "Maximum," meaning of, Ont. 
 
 Ins. Act 730 
 
 Named in contract shall prhmi J'liclc 
 
 be [jayable. Out. Ins. .\et 782 
 
 Measure of Inleresi. t'. C. L. C 731 
 
 Of dama,ues recovei'al)le 308 (i()7 
 
 (And sec Insiir.ibK' inleri'st.) 
 Medical olUccrs ccrtilicate final in 
 muliuil company as to disabilitv 
 
 33S 511 
 Oflicer, right of com]ianv to dismiss 
 
 328 51ti 
 "Member," me.ining of term, (1nt. 
 
 Ins. .\ct 711 
 
 Members of nmtual comiianies, 
 admission and withdrawal of, Ont. 
 
 Ins. Act 771 
 
 Members' liability, limit.ition of, in 
 friendly societies Out. Ins. Act... 7.88 
 
 Minors, insurance by 11)2 218 
 
 or lUleen years and upwards com- 
 petent to eti'ecl insurance on their 
 
 own lives. Onl. Ins. Act 781 
 
 Minister, interpi-elation of term... fi!l5 
 
 do Onl. In--. .\ct 737 
 
 Misdescription (see W.-inanliesl. 
 
 Misrepresentations, eiied oi. 
 
 U. ('. L. <' 722 
 
 ilo 724 
 
 Or oiidssioii, Out. .Stat, (.lond 7iK) 
 
 do H. C. do 834 
 
 (See also Slalulory conditions, War- 
 rant ies). 
 Hy agent as to paid-u|i capital . . . .421 (i!)3 
 Mistake as to articles covered bv 
 
 risk .83 l((0 
 
 In policy, (see Krror). 
 
 Mistakes in proofs of loss, ettect of 
 
 370 (lltt 
 
1 
 
 ANALYTICAL AND ALPHABETICAL TABLE. 
 
 861 
 
 111 
 
 tv 
 
 i:!s 511 
 iss 
 
 !2S .-)l(i 
 it. 
 711 
 
 lit. 
 ill 
 
 1 1 1 
 
 7SS 
 lii-i 21H 
 iiii- 
 u'ir 
 . 7S1 
 . (ill.") 
 ., 7:)7 
 
 I'Sl. 
 
 of. 
 .'■J.i 
 724 
 . 7i)0 
 .... H34 
 ,'iir- 
 
 m ()!);i 
 
 l.v 
 ..s:! liso 
 
 t of 
 ;!7(i (llil 
 
 I'.ir. V»ui' 
 
 iSl'i' Proofs of loss, Warranties.) 
 
 Misstatement of age uii(U-r the _ 
 
 Ins. -Vil of t'aiiiulii 7()ti 
 
 (See Ane.> 
 
 Money, scfuritii's, etc., not insured, 
 
 Ont. Stilt. Con 71)() 
 
 do H.C. " Wt4 
 
 "Month" iiicfiiin ■' c 11 1 (■ iid ar" 
 iiiontli 7S 121 
 
 Mortgage, (see WanantioH. Cred.) 
 
 Foreelosuiv of :tll4 (Kil 
 
 A clianue of tit le :MKi 4H4 
 
 By depiisit, life insiiriiiiee 2(M) 251 
 
 .Morliiii^e eliUise, elleet of 21t) 254 
 
 do 211 255 
 
 Clause in use li)2 2;t() 
 
 Xotice to secure priority 20it'/ 2.") I 
 
 Colox'iilile Iriinsfer of, does not d(!- 
 
 stroy insiir;il)le interest 112 210 
 
 Covenant to insure in deed, elVect 
 
 of l!ll 210 
 
 Held diseliarjfed liy payment of in- 
 
 insiiranee money to mortgagee, 
 
 (see Creditor). 
 
 .Mortfjaiie creditor, ell'ect of jiay- 
 
 nieiit of liis debt on his claim to 
 
 insurance moneys 12.j 194 
 
 Where second iiiortnaKce insures, 
 tirsl mortjiiif^ee may re(|uii'e money 
 
 to he spent ill rehnildiim- ;{45 .").")7 
 
 Ell'ect of vacancy on claim of. . . .2S5// l:!l 
 Transfer of his chiiiii held ei|uitahle. 
 
 assignee of iiolicy, etc 100 2;i5 
 
 .Suhi'oKation clause 1150 .")(il 
 
 Kinlit to ;;ive not ice of loss, etc. .'.iT.i (ilo 
 llypotliec does not jiass t'j tile in- 
 demnity in hands of insurer... .:i5:{ .5(i7 
 l,0ss p.iviilile to :115 4S,S 
 
 <lo ■ :u;i 4S7 
 
 (.•see Crcilitor, 'I'raiisfer.) 
 
 .Non coinmuiiicat ion of, not a Ijreach 
 of policy, in the ah.seiiee of stipu- 
 lation or fraud V.Uii 2;i9 
 
 .Mortjia.iice. in liritisli Coluinhia, 
 to \ylu)ni loss is pay.llile, niiisl lie 
 notilied of any chant;e in policy 
 and may makepioofsOf loss, .l.ss 2:!! 
 
 Or hypiif'ecary creditor, (see Creditor). 
 
 .Vctioi; liy. when claim exceeds 
 amoiinl of insurance Hill ()()2 
 
 .Mort;ta,tcor and inortKajiee. .action 
 hy :iil4 ()(i2 
 
 (.Viid see t" led it or.) 
 
 Mother and Husband, insnr 
 
 ance in favour of 2i;i 207 
 
 (St'e I'lclerred lieneflciaries. ) 
 Movable, insuiance claim held ..•|!)5 (KH 
 Insurance moneys are 17;t 224 
 
 Mutual insurance, history of. 4 a 
 
 Mejininnof term, Ont. Ins. .Vet 740 
 
 ilo in Manitoba S2() 
 
 Wliat is, p'lienil remarks ;i;t2 .527 
 
 rnil'orm I'onditions Act R. S. O., 
 1.S77, did nut apply to mutual com- 
 panies ii7»» :ii)8 
 
 Dislriliution of proceeds of mutual 
 lienelit certiticate, ehanne of hene- 
 llitiary :j:«) .541 
 
 Heceiit I'. S. decisions SIO M2 
 
 I'ur. Viii^e 
 
 Presumption that memhers know 
 by-laws ;U0 .54S 
 
 Non forfeitable policies, rights of 
 policy-holders in dividends :{40 i>43 
 
 No power to form branch organ- 
 izations ;ilO .544 
 
 Hates cliarged too low :i;i4 .510 
 
 Notes given in settlement of loss.:t;t5 .540 
 
 Waiver of right to arbitration by de- 
 nial of liability ',W> .511 
 
 (And see Arbitration and Proofs of 
 loss.) 
 
 Payment into court by benevolent 
 society :i;t7 .541 
 
 Phvsician's ccrtillcate liiial as to 
 disaliility :US 511 
 
 (And see I'roofs.) 
 
 Additional insurance by mortgage 
 creditor 'XKi .5;ri 
 
 (And see Creditor, Additional insur- 
 aiice.) 
 
 Non-delivery of jiroofs of loss ;i71 012 
 
 (.\nd see Proofs,) 
 
 Previous acceptance of premiums 
 after default, not a pre<:edeiit . .:tlO 544 
 
 False answers as to health in appli- 
 cai ion :i;j;! .5:15 
 
 (.Viid see Warranties.) 
 
 (ieneral law of ])artnersliip as to 
 prolit and loss governs, except 
 where charter |)rovides :140 544 
 
 Forfeiture denied for protection of 
 innocent third parties, invalidity 
 of policy cannot be set up as de- 
 fence in action for.issessments.IUO .544 
 
 .Apiilication of by-laws as to iioii- 
 susiiension of sick members . . .:(40 ,544 
 
 Ktl'ect i>f suspension of member on 
 riglits of his child :).52 504 
 
 Directors cannot add to or e.xtend 
 powers :!;!;{ 5155 
 
 (.\iid see Directors). 
 
 Questions of assessment, etc.. . . .:i:{2 520 
 
 Power of company to borrow . . .:t;i2 .5;iO 
 
 Initiation held necessary when re- 
 (|Uired bv constitution of lienevo- 
 lent society :t:)2 5H1 
 
 Assigniiient for costs by president of 
 company :ili2 5112 
 
 Heiii'volent society, doing liusincss 
 of accident insuiance without 
 license not conlined to mcmbcis 
 exclusively :i;{;l 5:fl 
 
 Iv\l)iil^ion of member of lieiievolent 
 society on c.c /iKrIr chai'ges :il<2 .531 
 
 Decisions inti'i'preting the Canadian 
 Statute l.iw, .5:{ \'ic., c. 11, s. 4 
 (Out.), held retids()ective. I'ire 
 Ins. Policy Act ajiplies to all 
 mutual companies .'Cill 5:12 
 
 ('onipanv not subject to rniform 
 ('ondit'ions Act, H. .S. O., c. l()2..:i:{:t 532 
 
 UenevoleiU society, case leading to 
 liassing of Ont. Ins. Corporations 
 .Vet, l.si)2 SKi .5:i;i 
 
 Ontario comiiany doing business in 
 t^iebec :i:« .5:14 
 
 Mutual or assessment life insurance 
 companies under the 1ns. Act of 
 Canada 700 
 
 1 ! 
 
862 
 
 INSURANCE LAW OF CANADA. 
 
 Par. Page 
 Aid and benefit associiitions, piiy- 
 ments of aid or assistance by, 
 
 R. S. Q. 1888 734 
 
 Associations, penalty for doing l>usi- 
 npss for one wiiicn lias not com- 
 plied with tiie formalities required, 
 
 K. S. Q. 1888 734 
 
 Insurance is not commercial, C. C. 
 
 L. C 721 
 
 Conversion of. Into joi^t stock com- 
 
 panieii',' Ont. Ins. Act 746 
 
 Interim receipt by nmtual company. 105 
 (And see Interim receipt J 
 Mutual company, liability for assess- 
 ments, etc 334 KW 
 
 Attachment of assessments 334 S!B 
 
 Meaning of term, Ont. Ins. Act 740 
 
 do In Manitoba 826 
 
 Agents have less discretionary pow- 
 ers than in stock companies — 322 4i)0 
 (And see Agents.) 
 
 Shares in, Out. Ins. Act 74.T 
 
 Divi(lends in, .same Act 74.5 
 
 Quallflcations of directors in, same 
 
 Act 745 
 
 (And see Director ., 
 
 By-laws of, same Act 746 
 
 Reserve fund oS, same Act 776 
 
 Mutual flre insurance companies, 
 formation and incorporation of, 
 
 same Act , 743 
 
 Capital in, same Act 74.5 
 
 Their internal management, .same 
 
 Act 771 
 
 Liability on premium notes, same 
 
 Act 771 
 
 (And see Premium notes.) 
 Mutual flro underwriters association 
 of Ontario, ellbrts to amend the 
 
 Insurance Act. . 814 
 
 " Municipality," meaning of term. 
 
 Out. Ins. Act 737 
 
 Murder, insurance effecti'd with in- 
 tent to 17.5 225 
 
 X 
 
 Nature of contract and the 
 different kinds of insur- 
 ance 17 21 
 
 Do, C. C. L.C 721 
 
 Early writers on the contract 17 21 
 
 Contract unknown to Rnman law, 
 
 its characteristics special 18 22 
 
 A conditional and aleatory con- 
 tract 10 22 
 
 Insurance in general Is a contract of 
 
 indemnity, life assurance Is not. .20 23 
 Use of terms " assurance " and " in- 
 surance " 21 24 
 
 Contract is consensual and bila- 
 teral 22 2.5 
 
 Scope of fire insurance 23 25 
 
 Insurance a commercial contract ex- 
 cept mutual insurance, general 
 
 remarks on (ire insurance 23f( 25 
 
 Chomagc and rent Insurance . . .23/* 27 
 Recent American decision on Insur- 
 ance of rent, value of American 
 holdings as applied to Canadian 
 coses 23c 28 
 
 Pur. PaKe 
 
 Leasehold policies 23rf 29 
 
 Reinstatement and abandonment. 24 30 
 
 Insured entitled to an expertise .24a 31 
 
 Scope of life assurance 26 31 
 
 Plans of life assurance most gener- 
 ally in use 26 31 
 
 Tontine and seml-tontine 26a 33 
 
 Joint lives, annuities, annuity appor- 
 tionment 256 35 
 
 Annuity fund for widows, etc , of 
 
 government employees 25c 'M 
 
 Indu.strial Insurance '25d 38 
 
 Death within certain time 26e 39 
 
 Non-forfeiture policy 2i5f 39 
 
 Insurance against the birth of is- 
 sue 25}; 40 
 
 Contracts of insurance companies 
 and beneficial societies distin- 
 guished 2.5A 41 
 
 Contracts of mutual lieneflt insur- 
 ance societies 25i 42 
 
 Assessment insurance 26j, 2.5fc 42 
 
 Licenses required 26 44 
 
 Exemptions under Sec. 43 Ins. Act 
 
 of Canada 26<i 45 
 
 Societies registered under Sec. 38 
 
 may make deposits 266 47 
 
 Accident insurance 27 47 
 
 Definitions of accident 27a 48 
 
 What the term "accident" in- 
 cludes 276 49 
 
 Exposure to danger 27c .51 
 
 Employers liability insurance 27(^ 52 
 (And see Enii)loyer.) 
 
 Elevator accident, carelessness 
 
 of employee 27f' .53 
 
 (And see Accident.) 
 
 Burglary insurance 28 54 
 
 Various other insurances 29 61 
 
 Plate HJass insuf.ince 29rt 61 
 
 Ne'.;ligeiic(' in replacing glass 296 61 
 
 Fidelity Insurance 30 62 
 
 Title insurance under Pennsyl- 
 vania Statute ."31 62 
 
 Neg^lect in saving property, a ques- 
 tion for the .jury 394 (HXl 
 
 NegOtiorum gestor, insurance 
 
 by 130rt. 197 
 
 do 130/ 200 
 
 do 1.54 215 
 
 (See Creditor). 
 
 New BranSWick legislation on 
 
 preferred beneliciaries 244 329 
 
 General enaetmeiits 8)5 
 
 Resolution f'. prepare a standard 
 policy form 818 
 
 New York Standard fire 
 
 jpolicy 203 373 
 
 Neiehbor, insurance against lo.ss 
 
 to 147 213 
 
 " Nominee," meaning of term, Ont. 
 
 Ins. .Vet .... 739 
 
 Non-payment of claims, cfTect 
 
 of. Ont. Ins. Act. 751 
 
 Non-ownership, liability in case 
 
 of, Ont. Stat. Cond 790 
 
 Liability in case of, B.C. Stat. Cond. 835 
 Note for premium unpaid.. 77 et sea. 102 
 Endorser on, insurable interest of.l77 226 
 (See Premium note.) 
 
29 
 , -M 
 ; 31 
 
 > ai 
 
 35 
 
 ANALYTICAL AND ALPHABETICAL TABLE. 
 
 39 
 
 41 
 
 53 
 54 
 
 r.i 
 
 HI 
 tU 
 
 (i2 
 
 t)2 
 
 . 739 
 [t 
 
 751 
 
 |c 
 790 
 835 
 102 
 22(5 
 
 Par. Vag» 
 Payment of premium by note to 
 
 agent 325 509 
 
 <lo 74 101 
 
 (Anrt see Agent.) 
 Notice of accident, a condition pre- 
 cedent 369 007 
 
 do wiiere delay prevented re- 
 covery 378 024 
 
 do no recovery if stipulation of 
 policy has not been complied with 
 
 370 025 
 do inaufflciency of, waived by re- 
 tention by company 376 625 
 
 Immediate', of accident held not 
 binding where assured had been 
 
 deliriouH 376 625 
 
 Necessary to cancel 206 375 
 
 Of cancellation of premium receipt 
 
 received after fire 113 181 
 
 Of termination must reach insured 
 where risk is not cancelled under 
 interim receipt, but merely put an 
 
 end to Ill 180 
 
 Of cancellation to broker of insured 
 
 sutticieut 118rt 184 
 
 Of death not given (i6 95 
 
 Of death insuflicieni, and not 
 waived by refusal to pay on other 
 
 grounds 375 617 
 
 And proof of death in accident insur- 
 ance, reasonable compliance... .376 624 
 
 Of loss ill guehec, C. C. L. C 721 
 
 Of lo.ss generally 368 (i03 
 
 Of loss to be given " forthwith " may 
 
 be posted 308 604 
 
 Of loss " forthwith " construed. 308 604-5 
 Of loss and statement waived by de- 
 nial of liability made before period 
 for furnishing proofs 'lad expired 
 
 375 (UH 
 And proofs of loss, waiver of, 
 
 308 ef seq. 004 
 
 Of premium due, eflect of 94 170 
 
 Of license un<ler the Ins. Act of 
 
 Canada 700 
 
 (And see Proofs.) 
 
 Nova Scotia Enactments hi5 
 
 do preferred lieneticiaries, 
 
 legislation concerning. . 242 320 
 
 Nullity of insurance otrected after 
 
 loss. C. C. L. C 723 
 
 Object of insurance, what mav be, 721 
 
 C. C. L. C 723 
 
 Ocean marine insurance, exemption 
 
 of, under tlie Ins. Act of Canada. 713 
 Occupancy of premises, increase of 
 risk, (itiestion of fact for the jury 
 
 394 t')03 
 (And see Vacancy.) 
 Occupation, change in, does not 
 
 aO'ect right of mortgagee 345 .").5(i 
 
 (And sec Creditor ) 
 
 Offer to undertake contracts,'' 
 
 meaning of, Out. Ins. Act 738 
 
 What it includes in Manitoba 8J0 
 
 " Officer," meaning of, Ont. Ins. Act 7;« 
 Ollicers of company, when deemed 
 
 agents, Ont. Stat. Cond 793 
 
 do 13. C. do 836 
 
 (And see Agents.) 
 
 868 
 
 Par' PaijB 
 .36.': .592 
 
 Old age, disability from 
 (And see Age.) 
 
 Ontario Fire Ins. Policy Act, 
 
 (1877) application of 40 70 
 
 Ontario ins. Act, applicable to all 
 insurance contracts in Ontario. 251 351 
 
 Ontario Insurance Act, The, 
 
 1897 730 
 
 Accident, what the term includes.. . 782 
 '"Account," do ... 741 
 
 Action where infants are entitled to 
 
 insurance money 778 
 
 Actions on premium notes 770 
 
 " Actuarial liabilities and solvency," 
 
 meaning of 741 
 
 Allowance for costs occasioned by 
 
 default of plaintifl' 794 
 
 Amount payable, where it is a mat- 
 ter of disnute 782 
 
 Annual audit 707 
 
 Ann '.al statement to registrar 769 
 
 Annuity, action for 778 
 
 " Appeal," what it includes 741 
 
 Appointment of trustees 782 
 
 " Apportionment," meaning of. . .. 780 
 do in case of preferred 
 
 beneficiaries 780 
 
 ■' Assessment insurance," what it 
 
 includes 740 
 
 " As.sessmenl system," printing of 
 
 words 7(56 
 
 Assets of company appearing in- 
 
 sutticient 7!M1 
 
 Assignment of life policies 781 
 
 " Assured," meaning of 7;i!) 
 
 " Beneficiary for value," meaning of 740 
 
 do designation of "81 
 
 ilo assured may vary 7S6 
 
 do leading a criminal or 
 
 immoral life 787 
 
 " Benefit," what it includes 740 
 
 Bonuses and profits, assured may 
 
 direct application of 787 
 
 Books; Periodical audit; Invest- 
 ments ; Financial statement^ 707 
 
 " Branch," mt^aning of 7:W 
 
 By-laws of mutual companies 740 
 
 "Canadian" company &c., meaning 
 
 of ; : 737 
 
 Capital stock of companies 742 
 
 Capital in mutual tire insurance com- 
 panies 745 
 
 " Cash-mutual company," meaning 
 
 of 741 
 
 Cli.ange of name or of head otlice . . 749 
 
 " Cliief agency," meaning of 7118 
 
 Chikireii's lives, insurance of 780 
 
 Civil .service fund of Canada 7.53 
 
 Claims, when legally payable 704 
 
 Claim, where admitted, but not 
 
 paid, payment info court 784 
 
 Claims, wliere payment is optional 793 
 
 " Collector," meaning of 738 
 
 "Company," meaning of 737 
 
 Company guaraiitecing its own em- 
 ployees 756 
 
 Consolidation of actions 778 
 
 "Contract," meaning of 738 
 
 Contracts to be deemed made in 
 Ontario 777 
 
864 
 
 INSURANCE LAW OF CANADA. 
 
 I'iir 
 urn 11(0, ni'iierivl 
 
 to 
 
 OontmetM of tin 
 ])r()viHi()ii>. 
 
 (.'oiilriliution from compiitiU's 
 I'XpeiiscH of o(I\ti' of liisjH'clor 
 
 •'Contributory," wlioin it iiicludL-.s. . 
 
 Coiivcr.sion of mutual into joiut 
 stock comiMiiiies 
 
 "Cor|ioriitioii," iiu'iiniu),' of 
 
 "("redilor," wlioui it Imluiliis 
 
 itiiy.s of nvin:e for piiyriK-iit of pro- 
 iniiini 
 
 Di'iitli of a.ssurc'il uhroiul, payment 
 to foreinn reprcse-ntiitivc 
 
 Uelienlures, etc 
 
 I)i"po.sil liy receiser 
 
 '• Dircitors," nieaniiiK of 
 
 Directors of .joint stock couipanies.. 
 (lo of niuiuiil lire insurance 
 
 conipiuiies 
 
 do powers of 
 
 (lo (]Uiililleutions of and pro- 
 visions relatiug to, in nnilual com- 
 panies 
 
 do rennineration of 
 
 Dividends in nmtual companies 
 
 " Due application," what it includes. 
 
 Duly of assured after loss 
 
 Duty of C'omiiany ceasinj; liusincss. 
 
 " Kiidownient insurance," wliut it 
 includes 
 
 EndowmeiU fund of friendly .socie- 
 ties, in case of voluntary li<iuid- 
 ation 
 
 Error in ajie 
 
 " Estate " Includes estate and elleet.H 
 
 Excessive ins\irance of infants 
 
 Fees payalilelo Provincial 'i'reastuer 
 
 " Eoreijin jurisdici ioi,.' nu'anin}; of. 
 
 Forfeiture of coriwrate powers 
 
 do 
 
 do 
 
 do of license by failure to de- 
 posit, non payment of claims, etc.. 
 
 Form.ition and incorporalion of 
 nmtual and casli-nmtual lire in- 
 s\n'aiice companies 
 
 l''raud and insolvency as alVecting 
 registry 
 
 Frauds in payments of piemium 
 
 " Friendly Sticiety," meaning of 
 
 do HcKister 
 
 do rules deliverable 
 
 on demand, and other provisions. . 
 
 Future wife, insurance for benelit of 
 
 GovermniMil deposits 
 
 "Guarantee insurance," meaning of 
 
 " Guardian, security by 
 
 " Mead ollice," meaning of 
 
 Incori)oration of .joint stock com- 
 panies 
 
 do of Friendly Societies. . 
 
 (lo of trade unions and 
 
 wage earners' societies 
 
 Infant beneliciaries, payment of in- 
 surance money in case of 
 
 " Inland nuirine insurance," mean- 
 ing of 
 
 Inspection of books of insurer by 
 
 claimant 
 
 do of insurance companies 
 licensed by the province 
 
 XII 
 
 7IN1 
 711 
 
 74« 
 7:«» 
 741 
 
 77il 
 
 IKi 
 
 771 
 SIX) 
 
 7:w 
 74a 
 
 711 
 7711 
 
 772 
 771 
 Tl.-) 
 741 
 778 
 ~o'i 
 
 740 
 
 7!»8 
 77!) 
 741 
 
 7Hlt 
 .Sllil 
 
 71*7 
 7i:i 
 741 
 74(i 
 
 751 
 
 74 H 
 
 7IW 
 781 
 
 7:t7 
 755 
 
 IHH 
 785 
 74i> 
 741 
 IKi 
 738 
 
 741 
 
 74(i 
 
 748 
 782 
 741 
 782 
 795 
 
 I'lir. PaRtf 
 
 " Inspector," meaning of 7:i7 
 
 Insurable interest necessary to sup- 
 port contract 780 
 
 Insurable interest in one's own life.. 781 
 
 •' Insurance," what it iticludes 7;i!» 
 
 " Insurance of I Ik- perso .," what it 
 
 in(,'ludes ".10 
 
 '■ Insurance on the cash plan," mean- 
 ing of 740 
 
 "Insurance corporation," meaning 
 
 of 7;«> 
 
 " insurance fund," meaning of 7.'ll) 
 
 Insurance t'ompany Wegister ..... 75-1 
 Insurance moiu-y, how ))ayable ... . 7.82 
 
 '• Insurer," meaning of. . ' 7.'W> 
 
 Insurer's right of entry after loss . . 778 
 Interpretalion of vaiious terms. ... 737 
 
 Invest igal ion of lires 71*4 
 
 In\ eslnient of shares of infanls 78;l 
 
 " Legal or lawful heirs," meaning.. 740 
 
 " Legislature, " meaning of 7117 
 
 "Licensees," inlerpretat ion of 751 
 
 Licensing of insurance companies.. . 75;t 
 
 Li mi tat ion of actions 770 
 
 div of prosecutions 7lMi 
 
 Li.|uidation, compulsory, of provin- 
 cial insurance corporations 700 
 
 do costs, piiorilies 808 
 
 do voluntary, of provincial 
 
 insurance companies 700 
 
 do of friendly 
 
 societies 707 
 
 " Lloyd's," registration of 7.55 
 
 " Lodge, " meaning of term 738 
 
 "Master," interpiitation of 703 
 
 Materiality of slalements in appli- 
 cation 778 
 
 " Maturity," meaning of 730 
 
 "Ma.ximum," do 730 
 
 do nanu'd in contract shall 
 
 /iriiiia I'lirir be i)ayable 782 
 
 " Member," meaning of 741 
 
 Members of mutual companies, ad- 
 
 nd.ssion and withdrawal of 771 
 
 " Minister," meaning of 737 
 
 Jlinois of lifteen years and upwards 
 compel cut to ellecl insuratice on 
 
 their own lives 781 
 
 "Municipality," meaning of 737 
 
 " Mutual company," do 740 
 
 do do shares in 745 
 
 do do cancellation of 
 
 policies ... 772 
 
 ■■ .\Iutual insurance," meaning of 740 
 
 .Mntual lire insurance companies, 
 
 their internal management 771 
 
 " Nominee," meaning of 739 
 
 " Oll'er lo nnderlake contracts,'' 
 
 meaning of 738 
 
 " Odicer," meaning of 738 
 
 Payment into court 784 
 
 Permissible investments 708 
 
 Person, insurance of the 770 
 
 " Policy," meaning of 738 
 
 Policy containing other than statu- 
 tory conditions 703 
 
 Powers and duties of registrar 754 
 
 Power to convert into paid-up policy. 78-1 
 " Preferred beneliciaries," what per- 
 sons may l)e known as 740 
 
 Preferred beneficiaries 785 
 
ANALYTICAL AND ALPHABETICAL TABLE, 
 
 8«-) 
 
 7/S 
 
 7:«> 
 7:«> 
 
 711 
 
 771 
 7:57 
 
 7!^1 
 
 7;n 
 
 740 
 745 
 
 tii 
 740 
 
 771 
 739 
 
 7;w 
 
 7:« 
 784 
 708 
 770 
 738 
 
 793 
 7.-14 
 
 784 
 
 740 
 
 785 
 
 "Premium," nu'iiiiiiiK of term 739 
 
 do (1.1 780 
 
 " Premium note, " ill) 739 
 
 I'reliiium mites mill iissessmciitM. . . . 774 
 I'roeeetlinns to ami duration of 
 
 rejiiHl ry "'"iH 
 
 Proof of' loss, if not niven tliroii^li 
 aecideiil, ete., or not olijceted to, 
 
 etc 793 
 
 Proof of reKiHli> and of other mat- 
 ters, notiees uiuler the Act 701 
 
 Properly wlii' h may lie insured 789 
 
 I'mtection of insurer in paying; in- 
 Kuranee before notiee of dechira- 
 
 tion 781 
 
 " Provinee," meaning of 737 
 
 " Pro. iiK'ial ' eompany, etc., do... 737 
 . Provision in case of deatli of persons 
 
 eiitilliMl u liere no apportionment.. 781 
 (jualilieation of directors in inutmil 
 
 eompanii's 745 
 
 " Receiver '" includes interim re- _ 
 
 ceiver 711 
 
 " Ret?istered " corporiiliou, meaniu).; 
 
 of 737 
 
 " Ke«istrar," do 737 
 
 Renisl ration of insurance corpoi-a- 
 
 tioiis 7.T.3 
 
 " Registry," meaning; of 737 
 
 Re-insurance of risks 771 
 
 Release of deposits 752 
 
 Renewing contracts of tire insur- 
 ance 789 
 
 " Rules," meaning of 738 
 
 "Sealed," do 7:18 
 
 Security to be furnished by em- _ 
 
 ployees 709 
 
 " Society," meaning of 737 
 
 "Solvent," do 741 
 
 Statement to be furnished to mem- 
 bers 707 
 
 Statutory conditions (see infrtt). 
 Sums insurable at ages less than 
 
 ten 780 
 
 Surrender or assignment of contract. 787 
 
 Suirogate fi'cs in certain cases 78.< 
 
 Suspending license of compimy 7iMi 
 
 Suspension of registry : .iiipejils 702 
 
 T> v. ■ of contracts invalid unless set 
 
 out in full 777 
 
 Terms of contracts of Arc insurance. 789 
 " Trade or Labor Pnion," etc.. mean- 
 ing of 73s 
 
 Transfer register 707 
 
 Treasurer to give .security 771 
 
 Unregistered corporations dis(|uali- 
 fled ; assessment insurance ; pen- 
 alties 7011 
 
 " Upon proof," meaning of 741 
 
 "AVritten," do 738 
 
 Ontario Statutory Conditions 
 
 of tire insurance contracts 789 
 
 Actions, limitation of 793 
 
 Agent, proof of loss may be made by 792 
 Arbitration in case of diirerences as _ 
 
 to amount of loss 792 
 
 Assignment of properly without 
 
 written permission 790 
 
 Change as to risk, wlien it shall 
 
 avoid policy, notiee of change, etc. 790 
 55 
 
 I'iu, !■ 
 t'himne\s, etc., lialiilily where loss 
 
 is canseil by defects in 
 
 (Maims, directions to lie observed on 
 
 making 
 
 Kxplosion of coal gas 
 
 Kiaud in proofs of loss vitiates claim 
 tiunpowdcr, coal oil. etc.. slor.ige of 
 Ileal, loss cansi'd by gooils being 
 
 sulijeiled to 
 
 Insurance terminable on notice 
 Invasi<iTi, etc., liabiliiy in case of . . 
 Liability, where none attaches 
 
 Lightning 
 
 Limitation of actions 
 
 Loss, when p.'iyable 
 
 Misrepi-esentat ion or omission. 
 .M<iney securities, etc., not insnrc(l . 
 Non-ownership, lialiilily in case of 
 Ollicers of company, when deemed 
 
 agents 
 
 Partial damage, salvage 
 
 Plate, p.iintings, dock.-, etc., not in 
 
 siired unless mentioiiid 
 
 Policy sent to be deeiii' I as applied 
 
 for unless variance iH.iiiled out. . . . 
 
 Prior or sulise(|iieiil iiisiirance 
 
 Pniof of loss by assured 
 
 do fraud in, vitiates 
 
 claim 
 
 do may be made by agent. 
 
 Reinstatement ' 
 
 Repairs liy carpenters, etc.. loss oc- 
 curring in coiise(|U(nce of 
 
 Riot, invasion, etc., liabilitv in case 
 
 of ; 
 
 Suliseipient insurance 
 
 Termination of insurance on notice. 
 Variations of statutory conditions in 
 
 Ontario " 
 
 Waiver of condition 
 
 Writlen notice, what constitutes 
 
 791 
 
 7111 
 791 
 7!I2 
 701 
 
 791 
 792 
 7!H> 
 790 
 791 
 793 
 792 
 790 
 79tl 
 700 
 
 79:{ 
 
 7!H> 
 
 71M> 
 
 7!K) 
 7iK> 
 
 791 
 
 792 
 792 
 792 
 
 791 
 
 7!H> 
 7iK* 
 792 
 
 703 
 792 
 7!t3 
 
 m 
 
 !)2 
 
 179 
 
 180 
 
 230 
 lllO 
 
 Open policy ra^r 
 
 do (ila 
 
 Other insurance, endorsement on 
 application unknown to in- 
 sured Ill 
 
 Interim receipt, where application 
 slates other insurance, company's 
 consent presumed ill 
 
 Siilistitution of the prior insurance 
 iis.sented lo, for ;iiuithei- not as- 
 si.nted to W.\ii 
 
 Insuiaiice bv separate interesl is 
 not 129 
 
 Violation of condition ly mort- 
 gagee " . . .212 2."i7 
 
 Kvidence of breach of warranty .39.1 iKm 
 
 (See .Vdditional insurance. Creditor.) 
 
 Over-estimate in proofs, (see 
 Fraudulent claims). 
 
 Over-insurance, c. c. L. c 725 
 
 (See Additional insurance, Fraudu- 
 lent Claims.) 
 
 over- valuation, fraud not )ire- 
 sumed unless it be excessive. . .((l/> il2 
 Contract may be annulled by in- 
 surer ." .... 724 
 
 do 72.T 
 
 (See also Fraudulent claims) 378 027 
 
866 
 
 INSURANOR LAW OF CANADA. 
 
 Piir. Vtmv 
 V 
 
 Paid-up policy, powi-r td convert 
 
 into, Ont. hiH. Ai't "SI 
 
 PareiltS. in.snnini'c for llit> Ix-nrdI, 
 of, (SCI' I'rcl'crrcil ItcncllcljiricH). 
 
 Parol tiKii'cnn'nl for renewal I"/" H'Ji 
 
 <lo do ■. S^ 
 
 ('tnitniclf. iiKcni'.s iiiilliorily 41r HI 
 
 Onlriiel.s, ellcet. of lit 75 
 
 do do lllf( Kt 
 
 Kvidence (d eHl!il)lisli iniHtiiUe and 
 
 rel'ortd error in policy •!•")- i>flll 
 
 Kvidence in coidrndiet ion of tcrins 
 
 of policy :«ll (MHI 
 
 (iSee also Kvidence) 
 
 SllliMeinienI inodillciition of cotilriict 
 
 by IS s:t 
 
 Deelaralion elleclinL; rinldn of lienc- 
 (Iciary, (nee Preferred lienellciaries). 
 
 Partner, inHiirance liv 15)1 2IK 
 
 do do ■ 17(1 2i;r. 
 
 Insuralile inli'rest of I(il( \l'l\ 
 
 Itctirin^ bnl retaining; Insiiralilit in- 
 tiM'csl, non <'i>nnn\inical ion of liis 
 ri'lirenn-nl \m<i 2;tS 
 
 Partial damages. SalvaRc, oni. 
 
 Mai. ('(>n<l 7H() 
 
 Salvage, II. ('. Stat. <'ond Kll 
 
 Payment, riace of !j:i 170 
 
 ilo of policy nionevM . 'Mtt't 571! 
 
 Of insiinince moneys, wlnMc inailc 
 
 ;i,S(t «5I 
 Of prcininni ami delivery of jiolicy, 
 
 (see also Application) II Ti i 
 
 Of pr.'miiim, nolice of due dale, | 
 
 ellecl of Ill 170 I 
 
 Of pi'cminin liv no(e 71 101 I 
 
 do d<> to iiKcnt SI nil I 
 
 do do a^enl may sne 1 
 
 in his own name S!l KiTi ' 
 
 (And see Ani'tits. I'reminm.) 1 
 
 Non piivim-nt of prcminm nme 77 '■ 
 
 ,t sni Id:; 1 
 
 Of los,,., eomliticm ,is to time of. .2.".S :(,">1» 
 do company need mil Hpeeify their t 
 
 ).!roninl foi' rcfnsinj; :i7(i (U;i 
 
 ■do insnrer need not wait foil period 
 allowed him liefore pavnH'nl :I7I 
 
 (dll I 
 do (see also I, imitation. I'rescrip- 1 
 
 tioM, Term for payment .) i 
 
 Of insurance inoney.H into conrl -Ml 2S:! 
 
 do :i."i(i 572 
 
 do. Ont. Ins. Act 7SI i 
 
 Of ilividemls, |{. S. Q. ISSS 7:M 
 
 /<,'.!■ iiriiliii hv Directors, (see Diree- I 
 
 tors) :«ll .".7S I 
 
 Paivnbrokers, insnrMnce \i\ . . iriti 21 1 
 Pecuniary interest, there must 
 
 he, to maki> insnralile interest. 172 221 
 (Ami see Insnralile interest.) 
 
 Penalties nnder the Ins. Act of _ 
 ('anada 70;t 
 
 In ease of <M)iitrav(>ntiori of the In.s. 
 Ai^t of ('anadn hy aKsessnnMit com- 
 panies 711 
 
 In rase of transac'thm of hnsinesH 
 other than life, lire or inland 
 marine iii.siirancc 7i:( 
 
 Tar. Vhk« 
 Kor doinji; ImsinesH for a rnntmd 
 a,<s(»Mati(>n which has not, com 
 plied with the formalitieH re 
 
 <l"i't'd. If. S. Q. ISSS 734 
 
 l'"or <loiriK huHini'.s.s In Manitoha 
 
 withont a license H20 
 
 Physician, privileged eommunl 
 
 ealloiiH :tl)5 (105 
 
 SlatenuMitH, (.see Proofs of death). 
 Pink clause, (see MortKiiKC clause). 
 
 Place of contract i)2 I7» 
 
 Where contract deemed to he made. 
 
 .11) (M» 
 
 Place of payment <)» I70 
 
 Of life policy in Alarnloita H'M 
 
 Plate e^lass insurance. ohlxI 
 
 mate cause of daniMLje, notice of 
 
 loss to aKCiil :i(H ."(H2 
 
 ('anital stoi-k of companies. Out'. hiH. 
 Act 7.i:< 
 
 Plate, p.'iintiiiKs. I'locliM. etc., not in 
 Mured unless im-ntioned. Out. ,stat. 
 
 cond 71)0 
 
 Do, M. ('. slat. con<l «Wi 
 
 Pleas, (see Aclions). 
 
 Policy, dellnitioMof .-,K S1» 
 
 Inlerprclfilion of, Ins. ,\c( (^an IHHI 
 
 do ('.('. I,. C 722 7a) 
 
 Meaning of lerm. Out. lus. Act 7:W 
 
 Wager or KamiriK, C. (!. I/. (' 722 
 
 Delivery of (it) OH 
 
 do what const ilules. . (1*) !),"> 
 
 do eorisunini.'it ion of uKree 
 
 men( i\2 IM 
 
 do (.See also Applh at ion. Ill ffsn/. 72 
 
 Not delivered 07 t)(| 
 
 do pri'minm not paid, no 
 
 not ii-e of di'iilh (1(1, ((7, (!7(( 05 
 
 Ohlained hy friind (HI \t\ 
 
 {{efornu'd hy parol 17 70 
 
 "Interest,"' wilder or n;ii,iiim-, open, 
 
 valued ."iS <■/ uni. SI) 
 
 What lirerlsU on house, etc., covers. ;!l!l .T>1) 
 Declanit inn 1).\ comp.inv to work f.)r 
 
 feilnrc of SI I5K 
 
 Marine, issiu'd mi roriii for lire 
 pnli(^y, use ol word "prcmiHes" 
 applied to vi ssi.| 25.V; :I55 
 l!redit(U' niav iitlaih assnred's in- 
 terest ill .' 2I2(/ 2(15 
 
 (lovers ell'ccts of siillii' description 
 suhstitntcd forlhose oii)j;|iiMlly in 
 
 place descrihcd 27(l(/ ;«)."> 
 
 ('oinponnd and specitlc, lloat lug ,'I0~ 171 
 Payahle to " assured" and not to 
 
 "insured" . . 17(1 225 
 
 Oil adopted child's life. (.Sci, hisur 
 
 ahlc interest ). 
 Death of assured iIii-oukIi crime of 
 wife, iiisuraiice moneys payahle to 
 
 asNii red's estate. . ,...,' 227 277 
 
 li'orfcitnre of, hy ignorance, relief 
 
 Ki-anted anainsl 2117 2H7 
 
 Non forfeitahle ;U() frW 
 
 .Speculative, on the lives of royal 
 
 personiiKcs (Il(/ Oil 
 
 Powei' lo convert policy in favor of 
 prefirred lieiiellciaiies into a paid- 
 up policy. Out. Ins. Act 7H'I 
 
 (And see ('referred lieneJiclarieN). 
 
H'JS) 
 
 
 .TiH Hit 
 . .. (MH» 
 
 n-i 721) 
 
 ... 7W 
 
 ... 72a 
 
 (U) IIH 
 
 (If) 1(5 
 
 Itl 
 Ti 
 IHI 
 
 Itfi 
 til 
 
 M'll, 
 
 n/. Sit 
 Hl'.t ."(.Jlt 
 
 .HI 
 Hit 
 
 ir)H 
 
 in- 
 
 idii 
 in 
 
 'lUii ;iitri 
 ,:«i2 174 
 
 to 
 17(1 225 
 
 i.r 
 t'l 
 .227 277 
 lOicf 
 2:17 2H7 
 ;ti(t 5t:» 
 
 DVal 
 
 .(!!(/ If» 
 ir of 
 aid 
 
 . 7H't 
 
 ANALYTIOAIi AND ALlMIAUKTICAIi TAIILE. 
 
 867 
 
 I'ur. I'litfc 
 
 ]']iiil(il'Hciiiviit widioiit reference, 
 merely net of in.sured, directory 
 
 only .". ilV Hit 
 
 <'iindll.lonH on, under IIk^ Ins. A<^t of 
 
 ('imiuliv "(Ml 
 
 IteHcripl ion and conditions. (!oin 
 
 ponent. piirls of ."ift HI 
 
 Must, contiiin nil ccnidltlonH set out 
 in fnll, nnder Onliirio and llonii 
 
 nion Acts 2.")2 c/ .v/v/. ;i.J2 
 
 (And see Warnmlies). 
 To lie deemed as applied for nidess 
 variance pointed ont, Onl. st. cond. 7110 
 
 Do, \i.i'. Htat,. cond XH 
 
 Must, conform to application, pre 
 snnied to do so, unless jitlentiou 
 
 is drawn to dill'er4'nei' 112 I HI 
 
 .Not cciuiitersiKneil. escrow . ,(IH /•/ mi/. IMi 
 
 Ihterini receipt, is not. 1 M' 1711 
 
 Transfer .pf. C. C. I, (' 722 72H 
 
 (Sec. also Insuralde interest loid 
 Transfer). 
 
 (!ancellal ion of 2lii; :i7ti 
 
 Of life (issuriince, lost :ill."i (i('i(> 
 
 Variance lii't ween it iind npplical ii>u. 
 (."see Slat ulory I'oudil ioiist. 
 " Policy-holder. " dillnilion i>f, 
 
 under the Ins. ,\ct of ('.•inadii 7IIH 
 
 Power ot attorney to lie lyicd 
 
 under I lie hi."^. .\ct of (iiiiiida 7(Kt 
 
 Pow^ers of directors, policy is 
 
 siu'd liy nn.tui liorizcd directors. :i."i(t .'"i77 
 ( And see I )ircctors.) 
 
 Powers of Parliament and he 
 
 Kislalures. :i2 il mi/, (il 
 
 Preferred beneficiaries, lenis 
 
 lat iou for t lie p|-otecl Ion nf , .21:1 2117 
 What persons uiav he known as, 
 
 Out.. Ins. Act .. :. 71(1 
 
 In (^nchec. how policy m.iy he taken 
 or appropriati'd, (handed or re 
 voked under' (^irehec leirislat ion, 
 and Kcnci'ally as to c'tl'eil ol sncli 
 appropriation, and as to conirniiii 
 
 Ity 2;tll(7 .111/- 2!i:i 
 
 Qindiec Iciiislat ion on 2.'l!i 2!t:; 
 
 licicnl chanjje in t^iiehec law .illow 
 irrn t I'ansfer' ol iippi'opiialeil pulley 
 hy Irisirreil .inil part ii's Ipi'ni'tiled, 
 (see .[ililiiiilii r/ ernilii) 
 In Ontni'lii, hou policy may he laUiri 
 or appropi-ialcci, chaiiL'cil or r'e 
 voked uridei' Ontario leL;is|al imi. 
 and neuerally .is to cll'cci of such 
 
 appropriat ion 2ltl illKI 
 
 Ont. Ins. Act . . 7<p 
 
 I,e)iislat ion in Nova .Scotia 212 H2(l 
 
 do New Itriinswick. 211 :i2!i 
 
 do Manitoha 2i:i .121 
 
 Ho ltritish('olunihia..2ll :i|ll 
 
 do I', i;. Island . 215 ;t;«! 
 
 Ont. Ins. Act, hi'ld retrospective as 
 
 lociirient policies 22M<f 2711 
 
 Assignment hv. with (loiiNent of as 
 sured, valid in some provinces, hut 
 
 not in guehee 2i:i 2(17 
 
 Triiusfer hy wife null in l^iiehec .221 27i"i 
 
 (Mill see Aililrni/ii li i-rrntin H71t 
 
 i'arol declaration eH'cct inii ri)j;lilH of 
 liunellclarv not. admis.sahle in evi 
 
 I'.ir. I'ii«i' 
 dence, parol declaration that policy 
 is for l>eiie(lt<(f n partieul.irwife.2H(( 2H(I 
 
 rolle^v for the henellt of mother, 
 policy suricrriler'cil after mar'ria«<' 
 arrd new policy ellected on heliaif 
 of wife, no power of r'evocation re 
 served and no roirsenf hy mot her. 
 
 2:m« 2KI 
 
 Insurairce hy wife orr hiishand's life, 
 predecease of wife and siiriender 
 of policy hy liiishaiid 2lf7 2H(l 
 
 Policy for the henelll of wife siirren 
 dereil wilhoiil her' consent, new 
 policy on helialf of hrothei' as se- 
 curity for dehl held invalid . . . .'S.V\ 'S'V) 
 
 I'ower to cipiivert into paid up policy 
 without coiiseni, of heneliciaries 
 and power- to horrow <ui policy. 2l(t :t(ll 
 
 .Si lire rider of policy hy t rilslee for- his 
 childi-eii and issue of new policy 
 piyalde to allot her hencllc-iary held 
 invalid as a diversion of linst 
 III mis 2:tH 2!»I 
 
 lOtVecl of deafn of henetlciary . . .:tll) l!HI 
 
 Kevocatioii of hcnetit lo wife who 
 has no vested ri^lit 22(lft 2711 
 
 l'olic\ payahic to wife and her e.\e 
 cutors or assi^ris, on predecease 
 of wife polii'V reverts lo estate, of 
 hushaml . ' 211 2(W 
 
 I'redei-ease of wife, rrew dii-er^tiori . 
 
 22H 27H 
 do . . 22.S/; ■.;7!) 
 
 I'ledecease of wife lo wlioirr payahle 
 causes policy to revert to insured, 
 second wife has no claim 2ll/(2(Ht 
 
 I'ledecease of dauulitcr to whom 
 hciiclll Is pjiyahlc causes policy lo 
 reverf to irrsirr-ed 2llc 2(111 
 
 Itinlil I o ( liaiiK"' henellciary wit lioiit, 
 consent 2;i.'"> (■/ ,s( 7. i;.s( 
 
 ('i)iiilit Ion of policy as lo ehaiiKc of 
 hciicllei,-iry . .2(l|(» :i7(l 
 
 I'enevolent society, chaiiL'e of lieiic 
 ticlary without notltlcation to 
 secielarv mid I'lidoisenieiit on cer 
 tillcatc- ■ 22H(/ 27H 
 
 Iteiievolerrl society, t estamiril ar-y 
 direct Ion,'., rijxlil ol society to limit 
 lii'iii-llri.irlc-^ to ci-i-taln class, siih 
 si ilir ion of ol hers hy will. . 22'<<- 27!t 
 
 l.o>^ payahle to wifi' or her children, 
 predecease of wiic and I wo child- 
 ren, one leaving issue, insuraucc 
 held pnyahli- to sur-vivlnn children 
 only, ..'. 21 l(( 2(W 
 
 Ity lau of insni'er- Interfcriim with 
 spirll of .\c'| for lii'iii'til of wives 
 and I'hililren in pl.'icin;^ deht on 
 
 appi-. ipr-i.-itcd nolicy 22(1^271 
 
 Appi-opriat ion iiy will, e\erri|)tion 
 
 froirr creditor's cl;iinrs 2.1(1 2H1 
 
 ( h.-iiiKc of appropriat ion hy will. 215 2t)!( 
 ('h.-iiilic of direclioii hy will where 
 polic\ is endorsed in fa\ia- of in 
 farri lienetlciar.N lielil invalid . 21(1270 
 
 lleclaration may he made piiiler Act, 
 hy will to take tillect irr priority to 
 arry lleclaration made hefore will, 
 liiit deelaiation hy will Is revok 
 ahiu ....; 225 27(1 
 
868 
 
 INSURANCE LAW OF CANADA. 
 
 I'ar. Page 
 
 Appropriation subject to testament- 
 ary directions, renuufiatiou of 
 executor and appointment of ad- 
 ministrator wlio claimed money 
 to l)e as marlccd and not mixed 
 
 Willi other funds of estate 220c 274 
 
 Interest of wife in husband's poiicj' 
 
 ceases in case of divorce 22:{ 27<l 
 
 Direction by will dividing benefit 
 among olliers than those for whose 
 benefit policy was originally ef- 
 fected or appropriatod lield in- 
 valid -sM 272 
 
 F'olicy forming an asset of tlie com- 
 munity, widow entitled to one- 
 half 221) 2/7 
 
 Benctit society, cliange of direction I 
 
 as to payment, rules of society in- 
 consistent with Out. Ins. Act,"lHi)7, ] 
 predecease of wife, rights of second i 
 
 wife and children 22.S 278 
 
 Creditors of assured have no claim 
 on appropriated policy, nor have 
 
 creditors of wife 222 276 
 
 I'olicy giving power of nomination 
 to assured and in default moneys 
 to go to widow and children, no 
 nomination by will moneys distri- 
 buted under provisions of policy 
 
 and not as residue 22()f' 275 
 
 Beneficial insurance certificate in 
 favour of "family," grandcliildreii 
 
 not entitled to benefit 2:11 2f<3 
 
 Death of assured througli crime of 
 wife, insurance moneys i)ayal)le to 
 
 assured's estate 227 277 
 
 Infant l)enetlciary, guardian ap- 
 pointed in a foreign state, security 
 
 retiuired 21(i/( 271 
 
 Benevolent society, certificate jiay- 
 al)le to legal heirs, exclusion of 
 
 second wife 217 271 
 
 I'olicy ai)proi)riated for l)enellt of 
 wife may be assigned by lieras her 
 separate estate during husbarKTs 
 lifetime, sul)ject to husl)and s 
 powers under (Ml Vic. c. lit! (().». .2111 272 
 I'olicy In favor of wifeand children 
 
 held Joint tenancy 22(l(/ 275 
 
 Policy for the benefit of children, 
 testamentary directions aflecting 
 policy, i|\iestion between guardian 
 of chiMren and executors under 
 
 will 21H 271 
 
 Hecpiesl of policy to wife held valid 
 declaration of trust under Onl. 
 Ins. Act, 1«)7, (K) Vic, c. :i(t, s. l,-)!l. 
 
 221 225 27(i 
 Insurances eirected in Ontario with 
 (Quebec <'onii)anies, transfer of 
 policies in Ontario governed by 
 law of Ontario, ap|)ro])riation by 
 liusband of policy eflected before 
 
 marriage 22l» 2H1 
 
 Interest ami rights of assured and of 
 beneficiaries, assigninenl of policy 
 to secure debt, evi<lence bv allida- 
 
 vit of loss of policy '. . . .22H(/ 280 
 
 I'olicy for the benefit of a sister, 
 change of l)eneflclary after mar- 
 riage without sister's consent, held 
 
 I'ar. Papf 
 that equity would consider that 
 done vvhicli ought to he done, and 
 would give relief accordingly.. .2;i5 284 
 Act 47 Vic. c. 20 (Ont,», Act to secure 
 to wives and children, etc., ap- 
 plies to insurance in societies in- 
 corporated under Benevolent So- 
 ciety's Act, U. S. Q., c, 107 2;« 282 
 
 Preliminary contract 47 70 
 
 do do 47rt 77 
 
 Preliminary notices and proofs not 
 necessarv where liability is de- 
 nied....". 108 178 
 
 (And see Proofs). 
 
 Premium 70 m 
 
 Interpretation of term, under the 
 
 Ins. Act of Canada 70ft 
 
 nelinition of, in ('. C. L. C 721 
 
 Meaning of. Out. 1ns. Act 7;i9 
 
 do do 780 
 
 Pavment of 7:1 1(K» 
 
 ■ do C. C. L. C 72» 
 
 Payment of, not held essential . .47a 77 
 
 Prepayment of 71. 72 100 
 
 Not paid, contract incomplete ()!J i>4 
 
 do do ....tU 95 
 
 do do ....m 05 
 
 Xonpayment of, through ignorance, 
 relief granted against forfeiture 
 
 237 287 
 Reception of, after fire, a waiver. 340 .5.5!? 
 Payment after loss to company 
 
 ignorant of loss, not valid 351 .5()2 
 
 Term of grace 77, 78 102 
 
 Loss within term of grace to pay. .73 100 
 do do . .351 5()2 
 
 Cheipie for unpaid 82 159 
 
 By error insullicient .S3 KiO 
 
 Ei-ror as toannulbnentof contract. 88 104 
 Set oil' against damages by fire. ...75 101 
 Dutv to rettirn with notice of can- 
 cellation 2<10 370 
 
 Notice of date of. ellect of 04 170 
 
 (living credit for 72 1(K> 
 
 Wlicre it is not due and must he 
 
 returned 85 W si'(i. 
 
 Kxira, what is DO, 04 
 
 Sail for first i)remium 105 
 
 Charged to l)roker by agent and 
 afterwards |)aid to ageni, ellect of 
 
 ,351 
 
 Policy containing acknowledgment 
 of, "effect of delivery of, wliere pay- 
 ment is not made 3;)0 50:2 
 
 Recovered l)y insured who had with- 
 out fraud coinniilled breach of 
 
 warranty 87 U» 
 
 Previous acceptance of, after default 
 
 not a binding precedent 310 314 
 
 Men for 207 »V ,scr/ 218 
 
 I'rauds in paynn-'iits of, Ont. Ins, 
 
 Act 781 
 
 Note, meaning of term, same Act . . 73(1 
 
 Note, accept.uice of, as cash. ....74 101 
 
 Pavnienfof premium by note... 74 lol 
 
 ■ do do ...325 mt 
 
 do do to 
 
 agent 81 101 
 
 do do to 
 
 agent, agent's riglit to sue on it in 
 his own name .^9 lO-t 
 
 102 
 105 
 170 
 
 .■•)03 
 
ANALYTICAL AND ALPHABETICAL TABLE. 
 
 869 
 
 w 
 
 Var. I'agp 
 
 Note paid to agent .S22 oOl 
 
 (lo iion-paymeut of 77 li sf(/'. 10:i 
 
 fio clo ory; ;j57 
 
 do Kfl'ect of lion paviiieiil of. . am ")(« 
 (lo Forfeiture for iion-iiaynieiit 
 ... , „ . ;{n«f 570 
 
 Action to colleet, defence that note 
 wa.s made liy wife to pay hus- 
 band's (iivniiuni, illecral niiih-r 
 
 ^C. C. L. t;. ]:>().) 2:i2 ''s-^ 
 
 Xote.s by .'iKeiit of Hailway Co 7(1 loT 
 
 -Notes and a.s.scssnuMit-, Out. Ins.Act 774 
 Prescription, proofs to be ma.le so 
 tliat (id days will elapse before 
 
 expiry of year limit li),") •■'41 
 
 And limitation of aetioiis, waiver 
 
 ,,«'''; ,.■■.•■■: 4();i(i71 
 
 (,\nd see Limitation). 
 
 Presumption of death from all- 
 
 Prmce Edward Island Enact- 
 ments (^|,y 
 
 Le;j,islal ion on preferred beiieli' ' 
 .eiaries ^|- .^.j,. 
 
 Prior or subse(|nent insurance, Out 
 
 ■•<f'V- '^'"'"' 7!)l) 
 
 ;^' »,,•■■■■,"• '"'• ■"'■•"'• '""'I- •^■''■'i 
 
 . l^i''-' .Vddilional ins., other iiis.i 
 
 PriVlleg-e, .Mort-a-e en ir has no 
 
 l)rivile,ireon msiiraiiee inoiievs .;ir.;} .-)(i7 
 (.\nd see ( rediloi). 
 Privileged eommnnh'at ions :m, ma 
 
 Proceedings (see Aeiionsi. 
 
 Profits, liisuranee against lossofllli I'l.'i 
 
 nisnranee of |-- .>[- 
 
 Claim of poliey holder to.'entireiv in " 
 
 discretion of directors. . ';i.-i7 ,-,7'> 
 
 (See Direcloi's). ' ' ' ' " 
 
 Promissory representations. 
 
 (see W arrant ics). 
 
 Proofs, of aceid , walverof i:isnlii- 
 
 cieiu V by rct.iition by companv HTli (LT. 
 Of (eat h, ccrlilieaK'of phv-,ieiaii.;iT(i (i:;i 
 (to Detecis 111, comp.-iin mis 
 
 It-iMliiiK plaintiO; (see l.imilalion 
 o| actions). 
 
 Of dealh, privilcu-ed eomiiuiiii- 
 • ■alioiis ..,.■- ,.,.- 
 
 Ol death (hroiiKh accident ;!7ii (i'| 
 
 'lo refusal of blanks . .::,•!!).-, ,1(1(1 
 Hiirdcn ol, (see also Suicide) 
 
 ofhS'i-tc'''''''"'^^''' ?;• 
 
 Of loss generally a,;; ,';,■;., 
 
 <lo I'liiiiishin^i'of iwti 11,11 
 
 do I'rovisions relation !(., li, c' s;t;i 
 do I'r.and in, vitiates claim, Om' 
 «tal. coiid ' -,,„ 
 
 '!" ,, 'I'' '!• C. st;il.eoMd. Kiil 
 
 <lo ( oncealment of eiunmbranee 
 
 do (see rraiidnlent Cl.iims I'l'vs- 
 criptioii), 
 
 do A condition preeedeiil to rittlit 
 
 , "'„'!<■''""■. :i7(M!22 
 
 ilo lo lie),'iven "as soon after loss 
 
 as possilile" const rued . , ;i(i!( ,;,|,i 
 
 do Such as "the nature and cir 
 euinstances of ihe case will admit " 
 
 .'Kill (107 
 
 Of, , ., ''■"■■ ''"K8 
 
 Ut loss, failure lo ^ive as i?eneral rule 
 iiivolv..s forfeiture,' exceptions 
 
 <lo Insurer must call alfentloii''to *'^^ 
 defects . , . ..-,. ,..,, 
 
 <1" I't'fectstoliH pointed out.MaiV 
 
 I'. Ins. I'ol. Act ... ■ M2I 
 
 <lo Assured must prove ' that 
 
 rei|Uirenients of iioliev have been 
 ••ompli.'d with ;jy, ^fn,. 
 
 'io .Maoist nUe's certiticale as to 
 lo.s.s (.see .Maj,'istrato's eerlilieal.'i 
 
 <lo ^"(Ii<iencyaiid insiiiliciency of 
 
 -lo InsunieieiK.y of, will not a^';!! '"'^ 
 wlieii suit was inevitable. . . :i7,i r,2i 
 
 do ^o inventory rcipiire.l of ^..ods 
 totally destroyed ay,; f;.,i 
 
 • lo (■inditions limitiim- period " 
 
 must be.strlctly complied wilhlo:! (i7a 
 'lo \an;uion of stalntorv con- 
 <lil"'ii^ .-IN to lime -raiilVd for 
 pavnienl alter proofs ,,)■ loss ;{7I filfi 
 
 • to Deluery to local ,.m,.|,t snlli- 
 
 p-n'^l''"', ■■„■■. ;i7() im 
 
 rrooi, ( omlition that it iniisi l,e 
 
 •liiect and positive held inop,.,.. 
 
 ative '.,,.. .-I),, 
 
 Proofs of loss, who may mak...:t7ll !iIO 
 IO hi. nijide by assured. Out. stat 
 
 • ond _||. 
 
 ,„ I'l"-,- 1 ,, , , "• <^- Ntat.Cond. ,s;i.-. 
 Ill liritish Columbia, may be made 
 
 •>v niortfia-ee lo whom loss is pav 
 
 ,"''"'■ .1S,>< ■>8( 
 
 .MortKap'e bound lo maki' l!,.", •ui 
 
 AclKMiby m<irm,it;ee ;i7,i ,1.,, 
 
 ■^ ay i)e marie liv beiieliciarv I'lS •'■"l 
 
 I y I bird parlies inlerested' .. liV:) ("ilr, 
 Musi be made by assured or his 
 
 aui'iit , . •j,,,i ,.ii- 
 
 M* , , , •loil (l(l;) 
 ay be made by awnt. Out. st.ii 
 '•"'ifl ■ -(,2 
 
 ,,r '. ,. , I'- »'• ^-lal. CO, id. ,s:!,l 
 Uant of noliee ;js.-, ,jryj 
 
 Who may .iilve notice ot loss :(;'•! ti'|'-, 
 
 .SiibMaiilially eonforminn- U) reiniiri'- 
 
 nienls of policy ;.;,. ^^.,>, 
 
 Recovery not limited lo amount 
 
 spec, lied in jn-oofs ij;,, (j.ij 
 
 Slalemenl .as to noii iicciipancv i>f 
 
 lii'il'liiiu • :i7ij ,i.,| 
 
 (And si-e \'aciiiiey, Warr.ani ics) 
 
 .No recovdv if lerins of poUev have 
 
 not i,e,'n coinplii'd with ;i7,; (i->t 
 
 If not nivei, Ihroii-h aiaaMeiil or not 
 
 ob.lecied lo, etc.. On,. |„s. Act 71);) 
 
 1 '• a\ due lo mistake of .assured ..;t7(; (i-'4 
 ^* '[''" opiiiK f MS, need as to value 
 
 ol slock is inadmissible ;i7,i o'ly 
 
 C^iuipaiiy has no rifihl to ilemand ,i 
 
 liriviite examinaiio,, ,jf assured 
 
 r^ 1 . . •!"'' (i28 
 
 IJemanil of iiiveiilorv desii'oved i,i 
 
 ,."'■.".'■'' . , " ■..,.:i7(i(i22 
 
 lo'laininu' "illioul obp'clion . :(7,i ,i,).> 
 
 U ilholilinLrof policy,w,iiver of .Mbf 2(T» 
 
 -A isl.akes in, ellecl of ;(7ii ,jm 
 
 .Should be furnish, Ml b.-fore acll.m 
 ean be maintained :)7,( ,j<w 
 
•J''.' ' 
 
 870 
 
 INSURANCE LAW OP CANADA. 
 
 % 
 
 Par. Page 
 
 Officer of 'company refn.sing to cer- 
 tify to plnintill'M :t7() 622 
 
 r>elivy caused hy insurer will not be 
 rcfiiirded UTti 022 
 
 Condition as to Imilder's certificate 
 
 :)72 015 
 
 Condition of limitation, when it is 
 not binding 'KW 073 
 
 Company insisting to examine as- 
 snred -nnder oath a waiver of 
 delay H70 023 
 
 ■When a long delay is not held nn- 
 rcas()nal)le 370 023 
 
 Evidence as to i)racti('.e of other 
 agents :«)4 001 
 
 Company leading assured to believe 
 that none would be re(|uired. . .370 023 
 
 Conduct of company leading to 
 delavs 37(! 023 
 
 AVai ver of :«!'.• OOrt 
 
 do 37.") 010 
 
 do 370 022 
 
 Mere silencu of company not a 
 waiver 370 ()23 
 
 llefiisiil to furnish blanks 37() 021 
 
 Assured nol relieved from making 
 Iiroofs, because company Wtas in- 
 formed of fraud 370 024 
 
 Non-delivery of, not waived by bonds 
 of appraisement 371 Oil 
 
 Waiver of nun-delivery or insufli- 
 cieiicy 371 012 
 
 Investigation before receipt of. is no 
 evidence of waiver 37t) 024 
 
 Waiver of defects and insulliciency, 
 American decisions 370 022 
 
 Waiver of limitation a (lucstion for 
 the jury 31»l 0(i3 
 
 Waiver of delav by statement of 
 agent ". 370 022 
 
 \Vaivei' of forfeiture, estoppel. . . .370 023 
 
 V.aiver' liv valuation and oiler by 
 conij)an>- 37*5 019 
 
 Insulliciency waived by ;t70 t)l.'2 
 
 Waiver by re(|Uesliug an inventory 
 destroyed in the the 370 022 
 
 HIglit to exact details befori' suit, 
 waived by refusal to enlerlain loss 
 
 375 Ills 
 
 Denying liabllitv on other grounds 
 
 370 022 
 do do 023 
 
 Proofs, preliminary nol re(|uired 
 
 where liability is (lenlcd lOS 
 
 do admlssibllit V of parol evidence 
 
 2S7f/ 139 
 Hy )iarol cannot vary written con- 
 tract, but, mav show it was not 
 made ' 322 197 
 
 Property wlilch mav be insured, 
 Onl. Ins. ,\ct ' 
 
 Prosecution of companies In de- 
 fault under the Ins. Act of Canada, 
 limitation of lime for 
 
 Province has exclusive. jurisdiction 
 over legislation regulating false 
 statements In applicat Ion etc. . . .37 
 
 Meaning of, Dnt. Ins. \ct 
 
 do In Manitoba 
 
 (Ami see Warranties). 
 
 7S9 
 
 OS 
 737 
 
 w2r) 
 
 P»r. Page 
 
 " Provincial" company &c., mean- 
 ing of, Ont. Ins. Act 737 
 
 Company, meaning of, in Manitoba. 826 
 
 Provincial Treasurer, fees pay- 
 able to, Ont. Ins. Act H09 
 
 Provisions relating to fire and 
 inland marine insurance under the 
 
 Ins. Act of Canada 711 
 
 Relating to life insurance under the 
 Ins. Act of Canada 7{XV 
 
 Publication of llcen.scd companies 
 under the Ins. ,-Vct of Canada 701 
 
 Quebec legislation 
 
 ties 
 
 Warran- 
 
 208 
 
 392 
 
 (.\nd see Warranties). 
 On Preferred bem-liciaries. (See 
 Preferred beneticlaries). 
 
 Quebec enactments on insur- 
 ance generally 
 
 Aliandonmeni 
 
 Acceptance of application, etl'ect of. . 
 
 Alterations in tiling Insured with- 
 out consent of insurer 
 
 Average contributions in marine in- 
 surance 
 
 My whom and upon what insurance 
 "may be ellVcted 
 
 Connnencement aiul termination of 
 
 risk 
 
 do do 
 
 Concealment, etVect of 
 
 Deatli by duelling 
 
 do the hands of .justice 
 
 Declaration of age and condition of 
 lu'alth 
 
 [)()nble insurance 
 
 Duration of risk 
 
 Duties of Insured in case of loss 
 
 How contract is witnessed 
 
 How sum of life Insurance may be 
 made payable 
 
 Insurable interest 
 
 do do 
 
 do do 
 
 do do in life jmlicy 
 
 Maliility in case of loss 
 
 do do do 
 
 lilfe policy, what it contains 
 
 Marine Insurance, iirovislons relat- 
 ing to 
 
 Measure of Interest 
 
 Misrepresentation and concealment, 
 ell'ect of 
 
 Nature of contract 
 
 Notice of loss 
 
 Nullity of Insurance ellected after 
 
 loss 
 
 Overvaluaticm 
 
 721 
 726 
 722 
 
 729 
 
 727 
 
 721 
 
 723 
 731 
 
 722 
 731 
 731 
 
 730 
 72;-, 
 723 
 721) 
 722 
 
 731 
 721 
 724 
 729 
 731 
 72.5 
 729 
 731) 
 
 723 
 731 
 
 Partial loss covered by several com- 
 panies . . .... 
 
 Preuiinin, pavmcnt of 
 
 Principal kinds of Insurance 
 
 Proofs of loss 
 
 Provisions relating to lire insurance, 
 do do life do 
 
 Uelnsiiraiice 
 
 Uenewal iiremium, delay given for 
 payment of 
 
 723 
 724 
 725 
 
 725 
 723 
 722 
 721 
 729 
 730 
 721 
 
 7.'k) 
 
ANALYTICAL AND ALPHABETICAL TABLE. 
 
 871 
 
 . 729 
 
 \ 727 
 e 
 
 . 721 
 if 
 
 . 723 
 
 7;tl 
 
 . 722 
 
 . T.n 
 
 T.il 
 f 
 
 . im 
 
 . 725 
 
 7;u 
 
 721 
 724 
 72!) 
 7:il 
 
 Kent (annuity) insurance tm 
 
 iiepreseiitiitions to be made bv in'- 
 Hurecl -J,,.} 
 
 c , <!<' (In (io 724 
 
 ouurogalion of insurer on paving tlie 
 
 loss •' " ~.jr. 
 
 Suicide, oll'ect of '. y-j^ 
 
 Transfer of policy -j'-m 
 
 ^ do do rT,7\ 
 
 Transfer of life policy ".['.'."" 731 
 
 do of object insured, e/l'ect of T>-> 
 
 v.. ''" ,. ''o do .. 72!) 
 
 VV ananties and conditions 72-> 
 
 ,„ ''" do 72jj 
 
 Warr.inty of "Rood liealth " to be 
 
 construed liberally 7'jn 
 
 K. S Q lSS8-l^.n,:volent and Mu'- 
 tua IJenefit Associations and Mu- 
 tual Insurance Companies 7;i;j 
 Cliiiiifre , if chief aKent or chief oilice'. 7:11 
 _ Head ollice, meaning' of teim. . T-ii 
 Insurance company." do 7-ji 
 Payments of aitl or assistance liy 
 Mutual Aid and lionelit Associa- 
 
 rions -,j, 
 
 Payment of diyidends. . 7-(4 
 
 Penalty for dolnrr liusiness ' for a 
 mutual assodation \y|iich has not 
 complied with the formalities re- 
 
 ipiired —H 
 
 Taxes upon conunercial corporal ions'. 7ai 
 
 li 
 
 Railway Co.. insurance a.'aitist 
 
 loss by lire throufrh s|)arks 1 |(i :jl:{ 
 
 Real estate. proyislonsrelatinKto 
 under the I'oreij,'!! Corporal ions 
 Acl (it Mamloba ,s;il 
 
 Rebate, claim for. I.y one' of two " 
 joint insurers (j.j (;^- 
 
 Of pi'cminm. aulliority of .'enera7 
 iifelit 
 
 Registry," meaning of, Ont. In.s. 
 
 Act, 
 
 737 
 
 Proof of, etc., Ont. Ins. Act 761 
 
 Suspension of, Ont. Ins. Act . 7(i2 
 
 Cancellation of, Ont. Ins. Act ' 7ta 
 
 .\(Iected by fraud and insolvencv. im 
 I roceediiiKs to and duration of, Ont. 
 
 /"^•■^'■f 7.58 
 
 Reinstatement 
 
 Out. Stat. coud. 
 
 j^-*'- <io .....'".■''.:.'." 
 
 (See ,ilso J{eyiyal». 
 
 Reinsurance, General remarks 
 
 , »f;"," 341 .t45 
 
 iiCKislatiye enactments, statutory 
 coiidiLions not applicable 342 .540 
 
 148 213 
 . .. 7l»2 
 . .. &Mi 
 
 C. C. I.. C 
 
 . 721 
 
 Ont. ins. Act '771 
 
 Xon-paytnent of note giyen for re- 
 
 insuiaiice premiums |13 (>8<i 
 
 In case of life insurance companies 
 
 liecomiiiKinsolyent. under the Ins. 
 
 Act of Ciinada 717 
 
 Iteceiit ['. .s. decisions ;{43 54t) 
 
 Coiiimeiicement of liability 34;) r>l\t 
 
 " ]''acultatiye "' or "oblij^atorv" letro- 
 
 ./•''^■*'""- , , : 311 .-,15 
 
 lieserye value calculated on reinsur- 
 ance value :j.,o -,,g 
 
 V alual ion ;{|.; 5 jjj 
 
 Oriirinal insurer may assent to ' 
 
 assignment 3)3 .5-t!) 
 
 .\o privity bet w.'cn original insured 
 and i-eiii>nrcr :{i).| Cifj^ 
 
 Release of deposits under the 
 
 Ins. Act (if Caiiiida. . . 707 
 
 '!" '.'■'.'... 712 
 
 '1" 71S 
 
 Ont. Ins, Act ■;-yj. 
 
 Release ot surplus securities under 
 
 the Ins .All of Cinada C,!)!) 
 
 Remarks of .judges ,m technical 
 
 Receipt, Interim, insnr.ince under "'''f'' 
 
 (an_d sec Interim recei|i| ) !I7 ,/ .s-rv. 17:i Removal, Loss bv, (see l.i.iliilitv f,,i' 
 Receiver, Action by, r,,,- as.sess- 1-ossl. 
 
 nienls 
 
 i li")2 
 
 • Cannot recover amount deposit... 
 
 with stale I reasurer |17 (i,S!) 
 
 I)eposit liy, Out. Ins, Act S(KI 
 
 Term includes interim receiver, tint. 
 
 , Ills. Act 74] 
 
 Synonymous niih liipiiiljitor jl.s n\)\ 
 
 Records iT. be U.'pl .'it chief agency 
 
 "I < ipany umler the Ins. Ai'tof i 
 
 Can.'ida 702 \ 
 
 Refusal, Ccuicealment of previous " I 
 
 (bee W arrant les). 
 Of claim. , IS a waiver of liinKatlon 
 
 „ „"'' P.'''""<''''Pf i'l'i elaiise l(i;{ 074 
 
 Registered," I'orporation, mean- 
 ing of term. Ont. Ins. Acl 737 
 
 •Registrar," meaning of, Ont. Ins! 
 
 •Vet 71)7 
 
 Powers and dul ies of, Ont. Ins. Act 7.54 
 Annual statement to, Ont. In.s. Act. 7lt!l 
 (And .>.ce Warranties. I. imitation). 
 Registration of iuHurance corpor- 
 ations, Ont. Ins. .Vet . . 7,')3 
 
 .121 ()ii;j Renewal lu'ld to be new contract. !i5 17(1 
 
 "" do 1-J7 \Ui 
 
 ( out inuaiice (d' original cnnl ra<'t . l.",(i 2lli 
 Of poliiy, agreement with agent, 
 burden of proof, (|Ucslion for the 
 
 , .i>'0 3!ll fili3 
 
 Premmm, delay given for payment 
 
 ,,;'i' ''•'•■''■<' 7;io 
 
 ot coniiacts of lire insurance, Ont . 
 
 lii«- Act 7,si) 
 
 iSee also .Vgentt. 
 Rent (iinniiity) insniance, C. C. I,. C. 7;«) 
 
 Insurance againsi loss of I til 212 
 
 Repairs by carpenters, etc., lo.ss 
 oc.iirring in consei|iieiice of, Ont. 
 
 slat. coTid 701 
 
 do li. (', Stat. eond. '.'.'.'.'.'.'.'..' KCt 
 
 Representation, false, as to other 
 
 insuraiirc, (m'c Ad.litional insnr 
 
 rancel. 
 
 (Sec also Warranties). 
 
 Repudiation of liability, per 
 
 mils iminedi.ite action 108 178 
 
 (And see I'roofs of loss). 
 
i 
 
 872 
 
 INSURANCE LAW OF CANADA. 
 
 
 I'lir. Piige 
 
 Researches as to auti(iuicy of in- 
 siiiiince ". 1 1 
 
 Reserve, how to be calculated 
 
 uikUt the Ins. Law of Canada 708 
 
 Fund of mutual companies, Out. Ins. 
 Act "70 
 
 "Residence" defined iS7/ 445 
 
 Rescission <>f contract on account 
 of nilsrepiesentatiou liy aueut as 
 
 to i)aldup capital 421 ti'.KS 
 
 (And see 'Warianties). 
 
 Retroactive etlect as to current 
 poli<'ies, of Act for protection of 
 wives and children -Mi 279 
 
 Returns, annual, hy conijjanies 
 
 un<ier the Ins. Act of Canada 701 
 
 Reversioners, see Sellers with 
 rii^lit of redenii)tion 101 21.S 
 
 Revival appl icat ion 54 87 
 
 Or rcinstatemiMit, couceahneiit of ill 
 health (See AVarranties) 281f/ 412 
 
 Right to profits, (see Divisible sur- 
 
 plllsl. 
 
 Rights of Uenetlciaiy, atFected by 
 
 acis of insured 12(i 1!),) 
 
 Riot, invasion, et<-., liability in case 
 
 of, Oiil . Stat, cond " 7i«) 
 
 do H. C. Stat, cond S;i5 
 
 Risk coverin<; articles erroneouslv 
 
 omitted Ki 100 
 
 Not adachinjr, premiiini must lie 
 
 relurncil Hit ct sti/. 1(>2 
 
 Moral iuid plivsical 2.'^2 410 
 
 DiviMliility of" 2f-:2 421 
 
 Dur.ilion of o>^r !HI 
 
 At taclmient of ;)52 505 
 
 Dale of expiry of 352 5t)4 
 
 Increased, wliat is 110 105 
 
 do lOit 
 
 Inciease of risk, cause of nullity ..'145 5.")2 
 <l(i by siihlettiiifi:.274(( (V .sr7 lOl 
 
 do cotton drieii in taniierv. 
 
 274c 402 
 do bazardoiis or extra liax- 
 
 ardoiis. spool factory, iiianufac- 
 
 tiire of excelsior '. 274(/ 102 
 
 Material alferalion in, before tender 
 
 of picniiiiin :t5H(( .575 
 
 Change in. (see Liabilily for loss. In- 
 
 (Ti'ase of risk, i 
 (Sec Warrant ic-.l 
 Roman law. No traces of insiirani e 
 
 in ... .2 :t 
 
 Royal personages, .speculative 
 
 policies (111 Olf/. OH 
 
 (See Wancri. 
 
 "Rules." iiieaninK of. Out. Ins. Act . 7;iS 
 t)f fiiendlv societies, deliverv of. etc. 
 
 Out. Ins. Act ! 7.'^.>< 
 
 And regulations repirdin^ I he 
 acceptance of securities olVered for 
 deposit by Insurance companies. HH7 
 
 Salary, InNuranee against loss of 
 
 140 2i;i 
 Sale of policy, tsee Transfer*. 
 Seal, provisions of, charter as to. .. .50 H\ I 
 
 Par. Piigo 
 Plea of want of, a fraud 51 85 
 
 "Sealed," meaning of, Out. Ins. 
 
 Act 7.18 . 
 
 Secretary in Canada of foreign co., 
 power of 80a. 1.57 
 
 Security to be furnished by employ- 
 ees. Out. Ins. Act 769 
 
 For costs 415 087 
 
 Securities, trust character of . . . .417 089 
 Kor deposit, rules and regulations of 
 Treasury Hoard, etc 837 
 
 Seizure, (see Creditor). 
 
 Sellers. insurabU; interest, (see In- 
 surable- interestt 134 203 
 
 AVitli ri;i;ht of redemption, insurance 
 by 101 218 
 
 Service (.see Actions). 
 
 Of companies with process under the 
 Ins. .\ct of Canada 7(K) 
 
 Of process in Manitoba 828 
 
 Set off ill conipcnsation 75 101 
 
 Shares in nmtiial coiii|ianies, Out. 
 Ins. Act 7-15 
 
 Short term insurance (see In 
 
 terim recci|its). 
 Silence does not operate assent un- 
 less it has ellect to mislead 47/> 78 
 
 (See Waiver, Warranties. Proofs.) 
 
 Slip of Policy. iSce interim re- 
 ceipt). 
 
 Small type, condition in, calcu- 
 lateil to elude oliseivation 251 .353 
 
 " Society ," meauing of. Out. Ins. 
 
 Act 737 
 
 Solemn declaration, afiidavits, 
 
 who may receive 385 053 
 
 "Solvent." meaning of. Out. Ins. 
 Act 741 
 
 Special Acts of Incorporation, 
 
 limilatiiiii of, under lln' Ins. Act 
 
 of C;iii.'ula 704 
 
 Speculative policies on lives of 
 
 royal personages Olr/ 93 
 
 (See Wager or gaming policy.) 
 
 Stamps on policies 402 070 
 
 Standard Fire Policy of New 
 
 York 2li3 373 
 
 Statements liy insured, prejudic- 
 ing lieiicliciary 120 105 
 
 In pamphlels biiiiliiigon conipiinv.. 
 
 3'."i8c 520 
 Anil dociiments to be fvled under 
 
 the Ins. Act of Canada 000 
 
 .Vmiual, fill Imsiness other than life, 
 
 lire or inland marine insurance, 
 
 under the Ins. .\ct of ('anada 712 
 
 Yearly, in life insurtinci', under the 
 
 Ins.' .Vcl of Canailii 713 
 
 Aiiuual, ill lire ami inland marine 
 
 insurance, iiinlcr the same Act... 714 
 .Vnmial, by foreign (iimpanies, re- 
 
 ipiireil under the saiiii' Act 702 
 
 To be fiicnislieii to member.s, Out. 
 
 Ins. ,\.ct 767 
 
 Of Losses on Island lug, coiunieiit of 
 
 Superintendent of Insnraiice 830 
 
ANALYTICAL AND ALPHABETICAL TABLE. 
 
 873 
 
 (45 
 
 "8 
 
 I'ar. PuKO 
 
 Statutory conditions- 
 
 Keiul into interini receipt.. 106 et seq. 176 
 i'art of every polity unless varied Li IH :ill 
 Misrepresentation or omission. . . 'Ml 
 roXwy deemed similar to application :«2 
 
 ClianRe of risk ;i,\-> 
 
 OhaiiKe of property m'' 
 
 Partial damage ' .-^i^ 
 
 Sal vaf;e ' \u~) 
 
 Money, securities, etc ..... -m') 
 
 Plate, paintings, cloclcs, etc. . ..'.,..'. 'm') 
 I nor or sul)se(|uent insurance 'M'i 
 
 Aon-ownership ;)(.{ 
 
 Riot, invasion, etc -{j-^ 
 
 Chimneys, ashes, stoves. . . .'. :i|;{ 
 
 I" irc heat applied ;j4;{ 
 
 Kepairs hy carpenters •{.)■{ 
 
 Cuniwwdcr, coal oil, eti' ... ;i44 
 
 li.Npiosion, lifrhtnlnfjc ' ;((( 
 
 Proof of loss wlien payaWe to other 
 
 than insured -ui 
 
 Ciaiins '_" !j| I 
 
 I'roof of loss hy aj^en t .....! Ij^-, 
 
 Fraud vilijiles'claim 
 
 Appraisement 
 
 lioss, when payable . 
 
 Heinstatenient 
 
 Insurance terminnhlo nn notice 
 
 nsurance terminable on 
 W aivei 
 
 Who is pritna focir i 
 Linn'tation of action 
 
 Notice 
 
 ^'arialiol)s. 
 0])tion will 
 
 .-iir, 
 
 :fl() 
 ;il(i 
 ■.m 
 
 I'Acnt ;U7 
 
 :i-l7 
 
 .■■ ,; :!17 
 
 low indicated ;j.|7 
 
 'usurer to waive condi- 
 
 .•il,S 
 
 ;m,s 
 
 tions ;!, 1 ;iri(l S 
 
 Oilier conditions 
 
 I'roof of loss not Kiven tJiVouKli acci- 
 dent, etc .ji^ 
 
 Allowance for costs '-uii 
 
 Ajipcal "nn ■(41 
 
 Ktlect of fiiilure to jiriiit ■",-,() .'joO 
 
 Vaiiiuice be! ween apjilication alid 
 policy .,,j^ jj^j. 
 
 Contract signed outside ' Onliirio 
 but governed by slatulorv condi- 
 tions ■ .)-] , ■,-, 
 
 Applicable to liotli insurer and" as- "' 
 
 ,.«'».'''^'l -'.V'c ;i.V' 
 
 Variations in ^Ki ;i,'iri 
 
 do must be indicated... m/ Im 
 do /triiiia fiirif unjust and 
 niu-ciisonabie -/jij ,vij() 
 
 'I" '!" <io i-).i .Wt 
 
 ao ilo do .-iTl (il(i 
 
 <io not projierlv printed.. 
 
 In Ontario. . . -o,, 
 
 In .Manitobii , ^!,:, 
 
 111 liiitish Coluinbiii ...!.. yjw 
 
 (Sec also Kcinsiirancet. 
 
 Steam power, eiidorscmcnt as ro 
 
 onaiiplic.il iiui forinterim recciptlll 17i| 
 
 Step-818ter or adopted child. (,See 
 
 insurable interest). , 
 
 Stipulation l hat com ract is ineoni- 
 plele until preininm is paid.. 6:). 64 04 
 l-ost or not lost " ijr^, 17, 
 
 Stock, 
 
 •'in 
 
 216 
 
 203 
 il5 
 
 Par. I'HKo 
 Stockholder, insurance by.. 160 -'18 
 atoppage in Iransitu, vendor's in- 
 
 siirable interest 134,/ -m 
 
 auDrogatlOn of insurer on navinir 
 
 the loss, C. C. h.C • 7;{0 
 
 ^'^^^Y-. ;:::ino5(!i 
 
 no in case of insurance by mort- 
 gage creditor if^) .>'\\ 
 
 Insurer's right to " " 187 "'« 
 
 . •'" .,:'<' lioS .^i.^ 
 
 in.surer without, still has action for 
 
 , d'l>"",'?,eS ;j5;^ .-,,.- 
 
 insurer is entitled to every right of 
 
 assured ;i,5;j .=i(i9 
 
 (See also Liabilitv for losses!. 
 
 Subsequent insurance, Om. 
 
 Stat, coiid. (sec additional ins.) . 7<)0 
 
 Subsequently acquired inter- 
 est..^ l,-55;, 
 
 ,y . '•" ,, . <lo l.i6 
 
 (See Insurable interest.) 
 
 Substituted g^oods i;j:j 
 
 Siibstiintion of goods in.sured! ! 'i.-,.V, 
 •" <io ;i4i) 
 
 do of ellects insured, of 
 
 «ajne description (see identity)27(i'( ;«)o 
 
 Suicide ;(^v|.j ,jj_- 
 
 .,','." , ,. ■ i,- • ■, • ■ • ■ ■ 3()5 .isi) 
 
 Kllect of, C. (.'. L. C 7'5i 
 
 Question of bona fide interesVof 
 
 third p,.irties ..,s;j y^O 
 
 liurden ol prool . . . 'j.s'j fin) 
 
 . !'" ^ . . : ii'i. (i(i,5 
 
 Anierican decisions as to e.vemption 
 of company from liabilitv . . :Ki 616 
 
 Not a crime within the law H,s4 6.-)! 
 
 I'.ttcct of clause of incontestabilit v 
 
 ouit lor premium [05 
 
 (Sec I'reminnis.) 
 Suits. (See Actions). 
 Sums Insiii able at ages less t !ian ten 
 Out. Ins.. Vet 
 
 S uperintendent . 
 
 term 
 
 And Inspeclois of In.surancej their 
 
 pnwi'i-- and duties 35 
 
 And his diilies under the ins. Act of 
 
 ( aiuKl.i 
 
 lO.vpenses of oilic 
 
 same Act 
 
 do 
 
 05 175 
 
 iiileriuetationof 
 
 of, under the 
 
 780 
 
 ()i)5 
 
 66 
 
 704 
 
 05n 170 
 
 cat 
 
 on, after siis 
 
 pension of 
 
 Supreme Court, too late to raise 
 
 there that legal representatives of 
 assured are not (larties 111/ litini, 
 (See Special Headings). 2K](i 
 
 Surety and guarantee companies in 
 
 Surplus. (.See 'nivj.^ 
 
 Surrender of policy. 
 
 ferrcd bencliciaricsL 
 As preventing further jxivmenl of 
 
 premiams ' .j;j7 
 
 ()f policy a u aiver of forfeiture! . 2:17 
 01 life policy obtained bv fraud. ;)21 
 
 705 
 712 
 
 ibic surplus). 
 (See I' 
 
 license. (,Sce Winding-up). 
 Irausferof, register. Out. Ins. Ac 
 
 Val 
 
 lie, not subject to arliitrary de 
 
 410 
 810 
 
 287 
 287 
 402 
 
 t., 767 
 
 sion of insuri^r 
 
 ci- 
 
 Valu 
 
 e unde.r the Ins. A 
 
 ;i.")8c 576 
 ct of Canada. 780 
 
p. ' 
 
 
 
 I ■ 
 
 ] 
 
 [H 
 
 i 
 
 874 
 
 INSURANCE LAW OF CANADA. 
 
 Tar. Page 
 
 Or assitrnment of contract, Ont. Ins. 
 Act. 787 
 
 SurrOKQite fees in certain cases, 
 Ont. Ins. Act IXi 
 
 Suspending license of company, 
 same Act 700 
 
 Suspension of liccn.se, calls on 
 slock after. (Sec Windinn-up). 
 Susjiensiou of member. (See Mu- 
 tual Insurance). 
 
 T 
 
 Taxes on companies in Quebec 7;il 
 
 do r. K. I SIH 
 
 do New Hruns- 
 
 wick 815 
 
 On life insurance at;ents in New 
 Mruiiswick H17 
 
 Technical defences (see Act ions). 
 
 Tenant Ims insurable interest to full 
 
 value of i>rcinises J 11(( -(it» 
 
 'I'cnants, insurance by joint \itSh 218 
 
 Term of grace, . . . . ' 77. 7.s ur2 
 
 Loss williin 7:< ll«) 
 
 do :ir)i M2 
 
 Term wbcn risk licgiiis and ends. iiSr IK) 
 For payment of loss, waivej- of, ex- 
 tension of term un.j\isl aiid un- 
 
 reasonal)le -iOH (i7l 
 
 For payment, may be limited Init can- 
 not lie extended beyond statutory 
 
 condition term 4()i< t)7r) 
 
 Terms " Assured" and "insnred" 
 
 mcanin;; of 171) -i") 
 
 Of contracts invalid unless set out in 
 
 full. Out. Ins. .Vet 777 
 
 Of cDulnu'ts of lire insurance, same 
 
 Acl_ 7Si) 
 
 Termination of insurance on 
 
 not ice. Ont. slat, cond 7il2 
 
 do 1!. (' Stat, cond 8;«i 
 
 Testacy & intestacy, Payment 
 
 acconliiiL; to foreifjiu law under 
 Ontario law 240 :t02 
 
 Testamentary' executors may 
 
 claim insurance moneys 17:1 22 
 
 Theft, (see Liability for loss). 
 Time within wliicii action must be 
 
 broujj;ht 40;t (i71 
 
 (See Linntation.) 
 Title insurance (see Nature of 
 
 coidract, etc) 31 ()2 
 
 Total loss (.see Liability for lo.ss). 
 Trade or Labor I'nion, etc., meaning 
 
 <)f term. Out. Ins. Act, 71W 
 
 I'uions, etc., incorporation of, same 
 
 Ad 748 
 
 Transfers, Legislation on, Stat. 
 I'on. in One, Man. & H. U., Law 
 
 in Quebec ;«« 470 
 
 General remarks, lej' loci contnicfus 
 
 Koverns ;«)4 477 
 
 Transfer of policy, C. C. L. C 722 
 
 do ' do 72!) 
 
 do life policy do 7:(1 
 
 do object iiisure<l do 722 
 
 <1o do 729 
 
 Assifiiu'e cannot recover, fraud 
 proved anainst assignor 378 020 
 
 Far. Png* 
 
 Annulment of 'M)a 004 
 
 Fraudulent cancellation of 17i)(t 227 
 
 Notice of, condition precedent to 
 
 8uit :t!)7 007 
 
 Sale to protect judicial surety and 
 
 subject to re transfer :U0 488 
 
 Sale with right of redemption, know- 
 ledge of agent, insurable interest 
 
 :tl7 480 
 (See Insurable interest.) 
 Alienation by iii.solvency, no trans- 
 fer to assignee obtained H18 4!)0 
 
 Of life policies ;{20 4!)1 
 
 Of life policy without consent of 
 beneliciarv, ell'ect rif death of bene- 
 
 ticiary...." ;tl!) 4!)0 
 
 Of life policy, executor caimot claim 
 until transferee's claim is settled 
 
 ;{2(l 4i)l 
 Incomplete, m-it'ier a will nordcclar- 
 
 ation of trust :!2() 41)1 
 
 Hv wife without husband's authnr- 
 
 itv 281;/ 414 
 
 A I'liattel mortgage is a "change of 
 title" avoiding policy, but it is not 
 
 a sale or transfer :ilU) 483 
 
 Of lire policy may be to one with in- 
 surable interest only, not so life 
 
 policy :«):t 470 
 
 Of Mre risk valid without company's 
 approval, rule conti'aryas to trans- 
 fer of object insured DCJ 177 
 
 Neglect of general agent to endorse 
 
 consent lib") 481 
 
 Absolute in form, but really only as 
 
 eollal eral securit y ". .... :«>•'") 481 
 
 Consent of company to and right to 
 
 uneariu'd jirendum Ifbo 483 
 
 By consent of insured, breach of con- 
 dition by original insured 30.") 183 
 
 Hi.ghts of' Iransferee as .iireeted by 
 sMlise(|\U'nt aels of iransl'eroi' in 
 
 breach of policy conditions 307 484 
 
 Of jiolicy to party with or without 
 insurable interest, in latter (!asc 
 transferee does not become the 
 
 insured 307 484 
 
 Sale of insured pi-operty, formeily 
 held to trnnsfer insurtince, rights 
 
 under assignment 307 484 
 
 Loss before actual transfer of posses- 
 sion, conveyance of land without 
 
 chattels insured 308 I8.'7 
 
 I'"rom partnership tolinuted liability 
 
 company, voids jiolicy 'M) 485 
 
 Assignee replacing fornu'r assignee 
 
 may collect insurance 310 485 
 
 Sale for taxes an<l redemi)tion does 
 
 not operate aliiMiation 311 48(5 
 
 Kights in co-partnership 312 480 
 
 Siiort ttu'm insurance, loss payable 
 
 to creditors, notice to agent 313 487 
 
 To creditors in trust, not an alien- 
 ation 313 487^ 
 
 Loss i)ayable, if any, to creditor. .313 487 
 
 (See Cre<litor. ) 
 
 Covenant to insure in mortgage, 
 
 operates eiiuilable assii:mnent.314 4 
 Loss before assent in writing, sale 
 
 by operation of law 315 488 
 
 Of life policy, to jiarty with no insur- 
 able interest " HSo 2'20 
 
 '> 
 
ANALYTICAL AND ALPHABETICAL TABLE. 
 
 876 
 
 m 
 
 m 4H7 
 
 tm 187 
 
 ilu 
 lilo 488 
 
 111"- 
 h,t 220 
 
 Vat. Payc 
 
 Of life policies, law in nonie of the 
 IJiiitfcl StiiteH dill'ercnt from thill 
 
 in Ciiniwlii 170 227 
 
 Of property, coii<lition as to, held not 
 
 Just or reasonahlc 2r)!t I!,")!! 
 
 Of policy governed by law of place 
 
 wlicre made 22it 2H1 
 
 Transfers, law jioverninK HH(i (iiw 
 
 (See Preferred beneliciaries). 
 
 Hejjister, Ont. Ins. Act 70? 
 
 "Treasurer," meaning of term in 
 
 Manltolia 825 
 
 To give security, Ont. Ins, Act . . .771 
 Trustees, etc.", insurance by . . . .15:1 214 
 
 Appointment of, Ont. Ins. Act 7H2 
 
 Tutors. Insurance by 15:t 214 
 
 Two-thirds lial)ility clause :i45 .m5 
 
 Of value, insurance limited to. . . .UllS (KiS 
 
 II 
 
 Unconstitutionality of certain 
 
 Dominion legislation 2)i.S :ii)2 
 
 Undertaking:, l<> provide for (see 
 
 Insuralili- interest.) 
 United States, law in, dlll'erent 
 
 from that in (lanada 17'.( 227 
 
 (And see Special headings). 
 Unjust and unreasonable eondil ions. 
 
 24il :tl9 
 do e.vlension of term foi' 
 
 payment of loss KKt (171 
 
 (S('e Conditions). 
 
 Unreg'iistered "'orporations dis- 
 
 (pialilicd, assessment insurance, 
 
 peiiallics. Out. Ins. Act KV) 
 
 "Upon proof," meaning of term, 
 sanu! .Act 741 
 
 Usage n,, 77 
 
 As to credit 47c 7!) 
 
 And ( iistom of trade considered in 
 I'onslruing condition of |)oli(y.2."i5c :i."i(') 
 
 Kllecl of, in intei'pretingcoiitraclslfl:! .'>ll( i WaiVer (sei 
 Usufruct, in case of, owner insur- 
 ing nmsl deduct usufruct 1 1 1(/ 211 
 
 I'sufruclnarv :iinl institute iiisur- 
 al)le inlere'sl of 144 211 
 
 (See Insnralile inti^rest). 
 
 V 
 
 Vacancy (see Warranties). 
 
 Condition as to .■121 ."iOS 
 
 Statement of age it as to, before 
 policy issued, a waivei' ;i."il) .■i(i2 
 
 A(pU'stion I'orthe.jniy 'ilH iMiH 
 
 Valuation of loss.'. . :'.iis (ics 
 
 Musi lie grossly e.xcessive to defeat 
 
 liability " -d^Ha. I4S 
 
 Value isee Market value.) 
 
 Sum assured does not prove . . ;U5 5."i;( 
 l)e[)ress|ou in values generally not 
 
 talvcn into account :tl.") 5.")5 
 
 Mai l^et price as a criterion of value., 
 
 :i45 .554 
 If doiibtlul, construction against 
 company and against claim r)f 
 
 overvalnai ion ^145 .5511 
 
 Of stoi'k, testimonv of merchnids.:!!)! (KM) 
 
 Valued policy . . . . ' .5Hf/ !tl) 
 
 do ■ (il !t2 
 
 do KHi 220 
 
 Far. Page 
 V^alued policies in Briti.sh Oolum 
 
 bia i;ic i)4 
 
 Variance in jiolicy and application 
 
 (see .Statutory conditions). 
 Variations (see statutory condi- 
 tions). 
 l'"n)m statutory conditions. 24(i rt srij 'XVi) 
 Of statutory conditions pritiiii fdcir, 
 
 un.just and unreasonable 24!) ',Wi 
 
 ilo 2.55 :i.5t 
 
 Of slatutiU'v conditions in Ontario.. 7!IH 
 do ■ do It.C. . . W« 
 (111 do Man. . . H22 
 Vehicle insurance compaides, capi- 
 tal slock ol Out. Ins. Act 74:i 
 
 Vendor agreeing to sell, insural)lc 
 
 interest of l;i4 20:i 
 
 I'npaid, compulsory purchase of 
 
 premises " VMh 'HW 
 
 With liglit of redemption, iiisur- 
 
 aiK- 'w Kil 21H 
 
 Vendor's in(erest after sale, right of 
 
 redeiiipl ion Ili4c 21)4 
 
 (.'■^ce Insurable int<'rest). 
 Verdict (see .Actions). 
 
 .Answer by .jury beyon.l proper 
 
 functions, ipialilieil answer 41)1 (i7(t 
 
 Violating law. death while :(S4 11.5(1 
 
 Di'.itli resulting when endeavoring 
 
 to escape ;iSI ()51 
 
 (.s^ee .Accident). 
 
 W 
 
 Wagor Ol' gaming policv .5S/; !H) 
 
 do ....'. " tile !):! 
 
 do 121 IS!) 
 
 do Mf^ii 22(i 
 
 do \X-1 22!) 
 
 Life lnsur;ince 170 222 
 
 Where no jiiMirahle interest 17^ 220 
 
 Test iiiionv of agent :!!>5 OO-l 
 
 Or ginning policies . . . . . .C. C. T,. C. 722 
 
 Vgenl. liiability for 
 
 lo^s. Proofs of los^. Warranties). 
 
 Of riglil lo cancel 100 17l> 
 
 Uy insurer, iiol asking (pieslioiis in 
 
 application I!':i'/ 2:i!t 
 
 .Special survey report, not forming 
 
 pint of applic.il ion ;t50 M\ 
 
 Of la|ise of life iiolicy by replying to 
 
 Ic'tteras to paid-up value, elc...:t.">0 5(i2 
 Of nol ill- of loss, etc., by denial of 
 
 liability ■ lOS 178 
 
 Deiii.il of li.ibilitv, a waiver of proofs 
 
 of loss or death :).")() .■i(i2 
 
 Insullicieni notice of death not 
 
 \\,ii\iil by refusal lo pay on other 
 
 grounds .;175 017 
 
 Of ri '111 to details before suit by re- 
 
 fiis.il to enleitiiin loss 1175 018 
 
 Of error in subscription by receipt 
 
 of dividend . . :,U) 008 
 
 Condition that it must be ('iidorsed 
 
 on policv, maintained bv Supreme 
 
 Court . .'. '. ;t72 014 
 
 Of limit.ition or prisscription clause,. 
 
 4o;i 07:1 
 Heci'ption of prciiiiiiiii after tire..li4i) .5.5!) 
 Solicitor or snperiiitendant cannot 
 
 waive, and terms of policy cannot 
 
 be waived before it is issued. .35(1 502 
 
876 
 
 INSURANCE LAW OF CANADA. 
 
 Par. P:iK<' 
 
 Proof of wiiivfr must show recogni- 
 tion of Viilidity of policy H5(( M'l 
 
 Hy stati'iiifiitM ill piinipliiets ;15S(; 570 
 
 Tiiliinj^ possession in iKHoriincc of 
 luciicli, not 11 wiiiver -iM 5(12 
 
 Of condition as to piiynient of prc- 
 
 niitini HI Itil 
 
 do non-delivery of policy a 
 
 waiver fi7(» 06 
 
 do under wliat circumstances 
 
 do as to eiicunihrances HoO 51)2 
 
 do Out. Stat, ("ond 7il2 
 
 do I5.C. do Sil) 
 
 By proccediiifj; to estimate loss. ...:io() 5(12 
 
 Of proofs of loss 'MTt (illi 
 
 do not by mere silence. . . .:t75 til.S 
 do does nut create liability to 
 
 pay before stipulated term :i7l (IKi 
 
 Noii-delivei'y or insuilicieiu y of 
 
 j)roofs of loss ;i71 ()I2 
 
 After ne^iotialin^i; witli otlier com- 
 panies as to ralable proportion of 
 
 loss H5() 5()I 
 
 By action of ad.justers :)o(l 5()2 
 
 do .■(75 (ilS 
 
 Loss of shi)) in i)rohibiteil i)lace, 
 
 abandonment :i50 5ti() 
 
 IVOiFi the ollect of war on insurance 
 
 coot raels ;ttl2 5.'^1 
 
 ("onl racts made ill view of 'M'2 5IS 
 
 Warehousemen, insurance by.i:ii>c ii»7 
 
 Insurance in their own names l>y.:i!)4 l)(>2 
 
 Coloral>le transaction as allecliuL; 
 insurable inliTcst 1 4M 211 
 
 Warehouse receipt held by bank, in- 
 surance on l:il 201 
 
 Kndoi'sed to bank, former holder no 
 insurable inlerest 1812(11 
 
 Assijinuu'iil of I'Md 201 
 
 Insured j:;oo(l.s held on warehouse 
 receipts, and "in trust or on con- 
 
 si;jninent '" lU!) 5.")il 
 
 IVcirrantieS, j-cpre.sentations and 
 
 conccaliiieni 2I>7 iiSS 
 
 Dominion and iirovincial le^cislation 
 re^'ardiiiK 2(IS :!i)2 
 
 Dominion le;.iislation reipiiriii^ refer- 
 ence in body of jjolicy, (constitu- 
 tionality of. ' 2Mla 410 
 
 I<enislation rei|uiritiK conditions to 
 l)e set out in full on policy 2(iS 392 
 
 Doniinion le>;islation reciuiriiiK sett- 
 ing; nut in full on policy, constitu- 
 tionalitv of '. 2Slf? 412 
 
 Lefiislat ioii requiriuf^ tluit they be 
 material 2(>S ;til2 
 
 Ije)j;islalion as to ernu- in a^e. . . .2US ;iil2 
 
 Quebec h'f^dslat ion, C.C.L.C 722 
 
 do do 724 
 
 do do 720 
 
 Ontario lej^islat ion 2(>S 3i)2 
 
 Uillerence between French and Knj;- 
 lish law 2(i7 384 
 
 RecerU C'anarlian and English 
 decisions, defhiinp; representations 
 and warranties 207 3S4 
 
 Distinction between warranties and 
 representations 2H,Sa 147 
 
 Directory provision not a warraiitv 
 
 o7 89 
 
 l':ir. I'iiKO 
 
 Misdescription by a}j;ent .50 HH 
 
 Statements declared to be, but(|uali- 
 
 tled by other stipulations 2SS((. 447 
 
 Though a warranty in name and 
 form, may not be con.strueil such.. 
 
 2S.'<6 
 
 Materiality in 2S2 110 
 
 What are ip"'^' '""■■* of materialilv 
 
 20'7 ;W4 
 truest ion of materiality depends on 
 whether prudent underwriter 
 would consider it, in makiiii^ con- 
 tract of li.viiiK iiremium 2S{ 42H 
 
 Kepresentation material iind untrue, 
 though not untrue to plaintill's 
 
 knowledge... 2SI6 410 
 
 Material alteration of risk before 
 
 j tender of pi'eniinni ',\'>H<i .575 
 
 j liiKht of siibro^tation material or not, 
 I if it allects ra.le of premium or not 
 I 2S4/( 429 
 I Xeces.sity of jiiviiiK all material in- 
 formation to insurer 2.sh/ 432 
 
 Limilation as to matevial to the con- 
 tract 27.S 404 
 
 Facts eiKpiired about ,vre material, 
 disclosures waived is admission of 
 
 immalerialily 2S4 428 
 
 Fad that <|uestion is asked held to 
 show answer is materialc. . . 2SS 4.52 
 
 Ciiiilrit 2SS 440 
 
 Questions waived or not asked, 
 ellect of 2S4r 4:iO 
 
 I'nanswered (piestion, use of ditto 
 
 niiirks 2Sb/ 412 
 
 Incompleteness in answer-^ to (|u<>s 
 tions in application, held waived 
 
 by insurer 2>iS/( 4 W 
 
 Indellnite or insullicient auswers207 386 
 Qneslions as to " habits" and " tem- 
 perate habits' 2.s7^'4U 
 
 Intenii)erate habits 281/" 413 
 
 Ai)plicaiit to pive all m.aterial infor- 
 mation, whether (|iieslioiied or not 
 
 281?> 429 
 
 English ruling as to false answer to 
 
 parol enipiiry 287/' 445 
 
 I'romissory represent it ions 288 440 
 
 Allirmalive or proniis ,ory 288?j 448 
 
 Froniissorv i'epresen;,ition as to ves- 
 sel navigating, words indicating 
 mere intent, not a warranty.. . .273 4(K) 
 I'romissory representation as to a 
 
 wiirchman 2.87c 439 
 
 Oral promissory representations .2.'<7 430 
 
 I'arol evidence admissible 28^i 440 
 
 Slatenieiits as to belief, promissory 
 
 represeiital ions 2.s7 43() 
 
 Statements "to best of knowlcige 
 
 and tielief" 2()7 384 
 
 Answers do do 
 
 belief 287/' 439 
 
 do 287/' 445 
 
 Statement to "best of ki\owledge 
 and lielief" does not cover state- 
 ment made "without knowledge." 
 
 287/> 44.3 
 Facts stated from the nature of 
 which insurer knows applicant is 
 only speaking from belief 2KSc 453 
 
 ' 
 
 »! i -J 
 

 ANALYTICAL AND ALPHABETICAL TABLE. 
 
 877 
 
 •no 
 
 429 
 
 ■UK) 
 
 a 
 
 :H7 ■i:«5 
 
 ;ss {W 
 
 I'V 
 
 (i7 :iH4 
 
 !7/' 4:!!) 
 i?/' 445 
 
 -h 443 
 of 
 
 I'i.r. Piijjf 
 
 What must l)e represented correctly 
 by assured 'HU :«0 
 
 Triitliful representations e.xacti'd.o;! 
 
 (iood faitli and true answers re- 
 «iuin'd 270 au:t 
 
 True dusiription an implied war- 
 ranty, insurance covers all etl'ects 
 falling within description, though 
 placed after policy issued .... 'lHUi H9!J 
 
 Omission in description of bnildin^; 
 
 272 :«)7 
 
 Where descrijjtiou of noods did not 
 imply Wiirrnnty 270^ 300 
 
 Description of locality, consent of 
 a^enr to renewal 272rt ;<97 
 
 I)escTii)tii)n of liuildinj^as "isolated." 
 
 272c ;«n» 
 
 do do " main 
 building" ... 275 403 
 
 Description of object insured, a tun 
 held not a building 27t) 403 
 
 .Misdescription of premises, agent's 
 fault, parol evidence 271ff 300 
 
 Misdescription by af.jent, insured 
 must examine jioliiv and applica- 
 tion ". .5(1 .S>S 
 
 Misdescription, added Hats, agent's 
 omission 272/) 308 
 
 Want of proof of misdescription .271 390 
 
 truest ion in application as to former 
 claim on insurance company, 
 answer by linn, not applicable to 
 claim bv former member indi- 
 vidnally' 2«7/ 445 
 
 False answer as to former insurance 
 in answer to verbal en(|uiry . . .2S7/' 445 
 
 Misrepresentation in ai)plication as 
 to value of property 2716 397 
 
 Misrepresentation as to incumbrance 
 made in ^ood faith 282 418 
 
 Coneeahnent and misrepresentation 
 encumbrances and title 282 415 
 
 Misrepresentat ion as to title, materi- 
 ality, etc ... 282 420 
 
 It is an implicil condition that there 
 is no misrepresentation or conceal- 
 uu'ut, whether fraudulent or 
 through mistake 283 425 
 
 Misrepresentation made to know- 
 ledtre of assure. I, no return of 
 premiums 287/' 443 
 
 I'ntrue statements voiding policy 
 tho\igh immaterial 287y' 444 
 
 Concealment of linancial embarras- 
 ment.nol iMKHiired into, insertion 
 of false answer by agent . . . .2'*4c 430 
 
 Concealment of a release aH'ecting 
 right of sulirogation 2SI6 42i( 
 
 Conccalnu'nt of previous ajiplication 
 to another agent of same companv 
 
 2()'7 387 
 
 Concealment of refusal of i>revious 
 applications 270a 404 
 
 Concealment of previous loss by tire 
 and previous refusal 27!)6 405 
 
 Coiu'caliiK lit of refusal on ai^count 
 of Ores and of danger of Incendiar- 
 ism 279c c/ siq 405 
 
 Question as to former rejection, 
 answers need be only according to 
 knowledge or reasonable means of 
 belief 287/' 444 
 
 fur. T..Kr 
 
 Concealment by error or design . .207 IM7 
 Concealment ot'planiuK machine etc. 
 
 28(1 108 
 Concealment of disease. . .28lr rl m 7. 410 
 do do untrue 
 
 an.swers made In good faith, 
 
 knowledge of agent 28b» 428 
 
 Representations us to health 281 W.) 
 
 "(iood health" to be ccmstrued 
 
 Jilierally, ('. C. L. (" TM 
 
 False answers as to <lisease and 
 
 medical attendance 287/ 441 
 
 Mutual insurance, false answers as 
 
 to health !«« SSa 
 
 Misstatements as to age and health 
 
 281c 413 
 Statement as to "soniul body" held 
 to be statement of opinion oidy 
 
 ■^XXr 45;j 
 Misstatement as to date of birth and 
 ofdisea.se 281c 410 
 
 Recent Knglish viev.s on conceal- 
 ment, broker's knowledge not com 
 nmnicated to his principal, the 
 insured 283 423 
 
 American views on concealment, 
 test of materiality 284 428 
 
 California law of concealment, con- 
 cealment of knowledge that barge 
 was probably lost 28Jf/ 432 
 
 .Stipulation as'to vacmcy 285 431 
 
 As to vacancy of house 324 .50H 
 
 do do temporary occu- 
 pation 345 niji', 
 
 do mere temporary absence is 
 not vacancy 28ti(( 430 
 
 E.xpectcd occupancy, {socmiprti, \'ii- 
 ram I/) " 2><l(i 437 
 
 Vacancy, knowledge of, by agent's 
 clerk lield sullicient 3:«lc ,523 
 
 American decisions on vacancy. 28(i 435 
 
 Use of word " warranty" not always 
 necessarily implies a" warranty .288 41() 
 
 Statement of what is neci's.vurily 
 matter of opinion is not war- 
 ranty 288(f 447 
 
 Infringement of, invoked by insured 
 to annul policy " 87 KKJ 
 
 Rights of beneficiary aU'ected by acts 
 and declarations of insured. ... 12() 195 
 
 Valuation must be grossly excessivi- 
 to defeat liability 28S(» 448 
 
 Hurden of proof of breach of 288 440 
 
 As to increase of risk, steam saw- 
 mill on adjoining land 274 400 
 
 Knowledge of agent, cannot destroy 
 ellect of warranty 284(i 428 
 
 .Vs to declaration of interest, Jire- 
 sumed renounced, if not invoked 
 by insured 270c 39ti 
 
 Etl'ect of agent's errors, etc 323 .^02 
 
 KtVect of omission of mention of 
 coal-oil shetl 323 .505 
 
 Parties ail iihiii, no unituiil mis- 
 take 323 .505 
 
 .Vction in, by insurei' against wron.:- 
 doer causing loss. 3.53 568 
 
 Special survey report not forndng 
 part of application 350 .501 
 
 As to policies being identical, condi- 
 tion precedent 277 403 
 
878 
 
 INSURANCE LAW OF CANADA. 
 
 I*iir. Pagi' 
 
 " Residence " defined iih the pliK'e 
 where appliciiiit is actually living 
 
 at date of proposal 2H7/' 445 
 
 Strict construction of conditions af- 
 fecting contract prior to loss ; but 
 more liberal construction of those 
 relating to matters after loss. 28Hr( 147 
 Just and reasonable variation. .2856 l;U 
 
 Recent American decisions 2SH 4 IK 
 
 Divisibility of ri.sk 2S2 421 
 
 Increase of risk by subletting. .274f( l((l 
 
 Grocer selling liipior by retail 2()il ;)il5 
 
 Waiver by negotiating with other 
 companies as to their ratable pro- 
 portion of loss ;triO oOl 
 
 Rules of construction of Supreme 
 
 Court of United States 2HHI) UH 
 
 Alabama Supreme Court rules us to 
 construction of warranties and 
 
 representations 2HH6 448 
 
 Rules of West Virginia Court of Ap- 
 peals as to warranties and mis- 
 representations 288c 451 
 
 Wife, insurable interest, husband 
 and wife 141 <7 .svf/. 2(IS 
 
 Claim under contract of marriage 
 against curator to husband's insol- 
 vent estate 171 22;i 
 
 Transfer by, without husband's au- 
 thority 281f/ 414 
 
 And children, insurance in favor 
 of 2i;t 2ti7 
 
 I'iir. I'ntfi' 
 
 And children, insurance for, under 
 contract of marriage, irregularly 
 notified to company 171 2211 
 
 And children, (see Preferred benefi- 
 ciaries.} 
 Winding-up of companies in 
 Canada 418 (WO 
 
 (Sec Li(|uidation,) 
 
 Distribution of deposit, although 
 winding-up proceedings are pend- 
 ing in England 414 B8(I 
 
 Authority of Master, insulHcient 
 security 41!» (102 
 
 Declaration of ilividend out of paid 
 111) capital of insolvent company 41!> (ilK4 
 
 Calls on stock after suspension of 
 license 421 fl»H 
 
 Of mutual corporation in Massa- 
 
 chuMtts 121 (>!i;i 
 
 Writs, (see Actions). 
 " Written," meaning of term. Out. 
 Ins. A.t 738 
 
 What it includes (.see Conditions 
 warrant ies 826 
 
 Clause prevails over printed . . . .25.ic iVUi 
 
 Notice, what constitutes, Ont. Stat. 
 
 Cond 7i»3 
 
 do H. C. Stat. Cond. .837 
 
 Yearly statement in life insurance 
 under the Ins. Act of Canada 713 
 
 END. 
 
ADDENDA ET ERRATA. 
 
 1, for 
 
 2, for ' 
 
 3, for ' 
 
 1, !Ul(l 
 
 2, re.id 
 
 Piifje 30 for " S ai f," read " 25 f." 
 
 (Ki, §a-), add "Tlu'reisan Inspector of Mutual Insurance Companies for 
 tlie Provincf of Quebec, whose ollice is in Montreal." 
 " 189 for second reference :i, read '.in. 
 
 23(t, S Wla, insert reference to foot note 2 at end of this parajjraph and in 
 foot note, and add after foot note "and see (Juerin and Man- 
 chester Ins. Co. R. .(. Q. a Q. K. W}." 
 237, S 102, middle of pa^c read " on behalf of owner or mortgagor." 
 " 254, S 2mil, for reference note read note 2. 
 
 2(W, S213, and pa^e 275, S 221, add: "Since this work went to press the 
 Quebec Legislature has passed an .\ct allowing the transfer 
 of an appropriated policy by the insured and parties henellted, 
 if of age." 
 
 ' infra g 22!V» " read " 2:i!)a.'" 
 ' infra S 2S26," read " § 2,S2." 
 do do do 
 
 ' j! S 374 and 155 " read " S S 2S2rt, 322, 323." 
 ' S S 21i»(( and 30,3 " read " S S 249(/, 25'J, ;«X)." 
 ' 15 Moore's P. C. Uep. 510." 
 " L. C. J." instead of " Q. C. J." 
 1, read " L. C, J." instead of "C. .1." 
 ." *!i' ^ '*""' '*"^®'" " •"'P'-'citic policies " insert reference t o foot note 1. 
 
 477, §:J04, add to foot note 5 : ca.se of Prentice v. .Steele, M. L. H. 5S. C. 
 2!»4, holding that assignment of a life policy is governed by the 
 law of place where assignment is made, and not of place where 
 policy was issued, or where it is payable. 
 " 4it4, reverse foot notes 1 and 2. 
 " 4!W, foot note 2, for " 1 U. S. ('." read •' 1 H. & G." 
 
 51(), S 32S, afte- 'to lake the account " insert reference to loot note 1 
 " 517, fori!3SII, read 330. 
 
 .5.5S, after "valid in all cases "insert reference to foot note 1 an.l after 
 •• cannot be recovered " insert reference to foot note .3. 
 " til)3, foot note 1, for " Rev." read "Rev. Leg." 
 
 " fill, last foot note, number this " 1 " before " Montreal, 3rd May, 1897." 
 " (il(i, insert as hciiding before " By the 17t h condition : " " 37 1. Time for pay- 
 
 menl of loss." 
 " C2(i, foot note 4, add as reference for Pacaud case, " 21 L. C. J. IIL" 
 " (i()7, S 398, after " should be allirmed " insert reference to foot note 3 
 " 075, g 403, for "Superior Court of Canada" read "Supreme Court of 
 Canada." 
 Ind.vr of cases, page XXIV., Pacaud v. Monarch Ins. Co., read page 408, instead 
 of 40. 
 
 277, foot note 2, for 
 
 341, 
 
 349, 
 
 357, 
 
 3.59, 
 
 439, 
 
 4()ti, 
 
 lOS, 
 
 do 
 do 
 do 
 
 Ir. 
 
 do 
 do 
 do