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A 
 
 DIG-EST 
 
 OF THE 
 
 LAW OF INSURANCE: 
 
 BEING AN ANALYSIS OF 
 
 FIRE, MARINE, LIFE AND ACCIDENT INSURANCE CASES, 
 
 ADJUDICATED IN THE COUKTS OF ENGLAND, IRELAND, SCOTLAND, THE UNITED STATES 
 
 OF AMEEICA AND CANADA, COMMENCING WITH THE EAELIEST EEPOETED 
 
 ADJUDICATIONS AND CONTINUED TO THE PEESENT TIME. 
 
 BY 
 
 OLIVER B. SANSUM, 
 
 COUNSBLOE AT LAW, CHICAGO, ILL. 
 (Late of the Island of Barbados, British West Indies.) 
 
 CHICAGO : 
 CALLAGHAN AND COMPANY, 
 
 LAW PUBLISEEB8. 
 1876. 
 
13 /'753^ 
 
 Entered according to Act of Congress in the year one thousand eight hundred and Beventy-Biz, hy 
 
 OLIVER B. SANSUM, 
 
 In the office of the Lihranan of Congress at Washington, S, C. 
 
 MADISON, WIS.: 
 
 ATWOOn A OULTSB, BTEBEOTyPSSS AHS PBINTXBB. 
 
PEEFACE. 
 
 The following pages contain an analysis of cases adjudicated in Great Britain, 
 tlie United States and Canada, upon contracts of insurance. 
 
 The questions adjudged in each case have been separated — the thing adjudged 
 placed among things of the same class. 
 
 I recognize the fact that, classification or arrangement, must ever remain one 
 of the most important requisites of a digest. This part of the work has received 
 my careful attention. 
 
 In determining the place for the question, its general name or root, the judg- 
 ment given and the thing carried up for special examination, have been kept 
 steadily in view, in the order mentioned. To illustrate: If the question came 
 up on a motion to arrest the judgment, founded upon the plaintiff's insufficient ' 
 declaration, and the court arrested it, the question properly belongs to 
 " Pleading," (the root). " What is not sufficient," (the foundation of the judg- 
 ment). " Of declaration, complaint, bill or petition," (the declaration being the 
 thing carried up for special examination). Or, if a loss occurred before delivery 
 of the policy, followed by a refusal to recognize the claim, on the ground that 
 there was no contract to insure, — but the court adjudged that there was a com- 
 pleted contract, — the question is placed under " Contract" (the root,) " Complete," 
 (the foundation of the judgment,) for the thing adjudged is, whether there was a 
 completed contract, between the parties, at the time the loss happened. 
 
 A great many of the titles are, of themselves, suggestive, alike, to the profes- 
 sional and non-professional reader. " Non-occupancy," " Keeping and Storing," 
 " Repugnant Stipulations," " Theft and Robbery," " Wife's Policy," etc. — these 
 suggest the questions placed under them. 
 
 In almost all cases, the facts, upon which the question was raised, have been 
 stated — an advantage to judges and lawyers who are far from large libraries. 
 It also enables the working lawyer to determine, at a glance, whether the case 
 adjudged will support that which is to be adjudged; and, in not a few instances, 
 the reasons of the court are set forth. 
 
iv PREFACE. 
 
 I have attempted to present tlie whole of each thing adjudged, separated from 
 others, putting each where it can be, as I believe, most readily found. 
 
 My hope is that the work will, in no small degree, lessen the labors of my 
 professional brethren and cast additional light along the way of that respectable 
 and responsible class, to whom is confided "the business of insurance," — the 
 
 hand-maid of commerce. 
 
 THE AUTHOR. 
 
TABLE OF CASES. 
 
 A. 
 
 Abbott «. Broome, 1 Caines, 292, 26, 1256, 1436 
 
 «. Hampden Mutnal Fire Ins. Co., 30 Me., 
 
 414, 98 
 
 ■». Howard, Hayes, 381, 1309 
 
 V. Bebor, 3 Johns. C, 39, 25, 1099 
 
 v. Shawmut Mutual Fire Ins. Co., 3 Al- 
 len, 313, 130, 1089, 1383 
 Abel c. Potts, 3 Esp., 343, 483 
 Abitbol V. Bristow, 6 Taunt., 464; 2 Marsh., 
 157, 114 
 Acer V. Merchants Ins. Co., 57 Barb., 68, 
 
 38, 865 
 
 Acey v. Fernie, 7 Mee. & TV., 151, 944 
 
 Adam v. Murray, Faculty Dec. 1801 to 1807, 
 
 p: 360, 255, 1444 
 
 Adams v. Delaware Ins. Co., 3 Binn., 387, 
 
 10 
 
 V. Mackenzie, 13 C. B. (N. S.), 443; 9 Jur. 
 
 . (N. S.), 849 ; 33 L. J. C. P., 93 ; 11 W. 
 R.,343; 7L. T. (N. S.),711, 1498 
 
 n. Pennsylvania Ins. Co., 1 Rawle, 97, 
 
 580 
 
 V. Pittsburg Ins. Co., 76 Penn. St., 411, 
 
 1086 
 
 v. Rockingham Mutual Fire Ins. Co., 39 
 
 Me., 393, 98 
 B. Sanders, 4 C. & P., 35; 3 Moo. & M., 
 
 373, 88, 898 
 
 9. Warren Ins. Co., 22 Pick., 163, 
 
 259, 396, 587 
 Adamson v. Scottish Provincial Ins. Co., 6 C. 
 
 C. S. (3d ser.), 443; 40 Scot. Jur., 217, 
 
 380 
 Adderly v. American Mut. Ins. Co., Tan. C. C, 
 
 126, 1364 
 
 Addison v. Duguid, Faculty Dec. 1793 to 1796, 
 
 p. 83; id., 1796 to 1801, p. 64, 1461 
 
 V. Kentucky Ins. Co., 7 B. Mon., 470, 
 
 671 
 
 jEtna Fire Ins. Co. v. Tyler, 16 Wend., 385 ; 13 
 
 id.. 507. 387, 712. 863. 1132 
 
 -lEtna Ins. Co. v. Burns, 5 Ins. L. J., 69, 
 
 494, 827 
 
 V. Grube, 6 Minn., 82, 133, 1481 
 
 V. Harvey, 11 Wis., 394, 1317 
 
 «. Maguire, 51 111., 343, 83, 93, 1073, 1223 
 
 1). Miers, 5 Sneed, 139, 694 
 
 V. Phelps, 27 111., 71, 745, 957 
 
 ■». Stevens, 48 111., 31, 141, 1140 
 
 v. Stivers, 47 111., 86, 1020 
 
 ^tna Life Ins. Co. ■». France, 5 Ins. L. J., 257; 
 
 8 Chi. Leg. News, 203, 790, 1394 
 
 Mtaa, Live Stock Ins. Co. v. Olmstead, 21 
 
 Mich., 246, 473 
 
 African Merchants, Company of, v. British and 
 
 and Foreign M. Ins. Co., 8 L. R. Ex., 
 
 154; 43 L. J. Ex., 60; 21 W. R., 484, 
 
 418 
 Aguilar v. Rodgers, 7 Term, 421, 1230 
 
 Ahearne v. Harney, 3 Irish Eq., 479, 1281 
 
 Ainsworth v. Backus, 5 Hun. (N. Y.), 414, 
 Akin V. Mississippi Mai'ine and Fire Ins. Co., 
 
 16 Martin (La.), 661, 430, 1473 
 
 Albany City Fire Ins. Co. v. Keating, 46 111., 
 
 394, 977, 1335 
 
 Albert Average Ass'n Co., In re, Blyth's Case, 
 
 13 L. R. Eq., 529, 310 
 
 Alchorne v. Saville, 4 L. J. Chan., 47 ; 6 Moore, 
 
 202, n., 56 
 
 Alcock V. Royal Exchange Aas. Co., 13 Q. B., 
 
 292, 486, 1151 
 
 Alderman ■». West of Scotland Ins. Co., 5 U. 
 
 C, 37, 115 
 
 Aldrich v. Equitable Safety Ins. Co., 1 W. & 
 
 M., 272, 70, 180, 1283 
 
 Aldridge v. Bell, 1 Starkie, 498, 23 
 
 Alexander v. Baltimore Ins. Co., 4 Cranch, 
 
 370, 1039 
 V. Campbell, 41 L. J. Ch., 478; 27 L. T. 
 
 (N. S.), 417, 136, 183 
 V. Germania Fire Ins. Co., 3 Hun. (N. Y.), 
 
 655; 5 N. Y. S. C, 308; 13 Alb. L. J., 
 
 247, 460 
 V. Muirhead, 2 Dessaus. Eq., 162, 377 
 
VI 
 
 TABLE OF CASES. 
 
 Alexandre v. Sun Mut. Ins. Co., 51 N. Y., 253, 
 
 281 
 Allan «. Smith, 2 C. C. S., 309 ; 1 id., 34, 1505 
 
 v. Young, Faculty Dec. 1801 to 1807, p. 
 
 248, 239 
 
 Allegheny Ins. Co. «. Ransom, 69 Fenn. St., 
 
 496, 55 
 
 Allegre ®. Maryland Ins. Co., 6 H. & J., 408; 
 
 2 G. & J., 136, 58, 135, 536, 682, 1115 
 
 ■». Maryland Ins. Co., 2 G. & J., 136, 
 
 1240 
 
 ®. Maryland Ins. Co., 8 id., 190, 286 
 
 Allen ■B. Charlestown Mutual Fire Ins. Co., 5 
 Gray, 384, 1201, 1379 
 
 V. Commercial Ins. Co, 1 Gray, 154, 1422 
 
 0. Franklin Fire Ins. Co., 9 How. Pr., 501, 
 
 103 
 
 ■». Hudson River Ins. Co., 19 Barb., 442, 
 
 36 
 
 e. Hynd, 8 S. & D., 612, 1291 
 
 V. Massasoit Ins. Co., 99 Mass., 160, 658 
 
 V. Mercantile Mut. Ins. Co., 44 N. Y., 487 ; 
 
 46 Barb., 643, 578 
 
 V. Morrison, 3 M. & R., 70 1314 
 
 B. Mutual Fire Ins. Co., 2 Md., Ill, 
 
 664, 693 
 
 ». Sugrue, 8 B. & C, 561; 7 L. J. K. B., 
 
 53, 1418 
 
 V. Vennont Mutual Fire Ins. Co., 12 Vt., 
 
 366, 463 
 
 Alliance Marine Ass. Co. ». Louisiana State 
 Ins. Co., 8 La. (O. S.), 1, 566 
 
 Allison V. Bristol Marine Ins. Co., 9 L. R. C. P., 
 559 ; 43 L. J. C. P., 311 ; 31 W. R, 734; 
 30 L. T. (N. S.), 877 ; 42 L. J. C. P., 334 ; 
 
 601 
 
 V. Corn Exchange Ins. Co., 57 N. Y., 87, 
 
 299 
 Alsop t. Coit, 13 Mass., 40, 54 
 
 ». Commercial Ins. Co., 1 Sumn., 451 
 
 .815, 1461 
 
 American Horse Ins. Co. ■». Patterson, 28 Ind., 
 
 17, 328, 963 
 
 Alston V. Campbell, 4 Bro. P. C, 476, 714 
 
 ». Mechanics Mut. Ins. Co., 4 Hill, 339 ; 
 
 1 id., 510, 489 
 
 American Central Ins. Co. ». McLanathan, 11 
 
 Kan., 533, 403, 473, 1035 
 
 American Ins. Co. v. Bryan, 26 Wend., 563 ; 1 
 
 Hill, 35, 195, 1869 
 
 B. Dunham, 12 Wend., 463; 15 id., 9; 2 
 
 Hall, 455, 195 
 
 v. Francia, 9 Penn. St., 390, 13, 400, 428, 
 
 787, 1488, 1483 
 
 v. Gallagher, 5 Ins. L. J., 200, 100 
 
 V. Gilbert, 27 Mich., 429, 568 
 
 American Ins. Co v. Griswold, 14 Wend., 399, 
 
 391, 450 
 
 ». Insley, 7 Penn. St., 223, 54, 68, 
 
 1152, 1157 
 
 V. Ogden, 15 Wend., 533, 6, 1264 
 
 ■». Ogden, 20 Wend., 387, 842, 1265 
 
 0. Padfield, 8 Chi. Leg. News, 138, 820 
 
 V. Schmidt. 19 Iowa, 502, 1053 
 
 American Life Ins. Co. v. Rosenagle, 77 Penn. 
 
 St., 507, 400, 520, 521, 539 
 
 American Life & Health Ins. Co. v. Robert- 
 
 shaw, 36 Penn. St., 189, 6^5 
 
 Ames «. New York Union Ins. Co., 14 N. Y., 
 
 253, 457, 761, 1210 
 
 Amesbury v. Bowditch Fire Ins. Co., 6 Gray, 
 
 596, 765 
 
 Amicable Society v. Balland, 4 Bli. N. R., 194; 
 
 2 Dow & C, 1, 393 
 
 Anchor Ass. Co. In re, 5 L. R. Ch., 682, 841 
 Anchor Life Ins. Co. «, Pease, 44 How. Pr., 
 
 385, ■ 1085 
 
 Anderson v. Dowling, 11 Irish Eq. R., 590, 
 
 743 
 V. Fitzgerald, 4 H. L. Cas., 484; 17 Jur., 
 
 995; 3 Ir. C. L. R., 475; 1 id., 251, 
 
 1298 
 V. Forth Mut. Ins. Co., 7 C. 0. S., 268; 17 
 
 Scot. Jur., 133, 
 
 ■». Morice, 10 L. R. C. P., 58, 609, 
 
 705, 1247 
 ■», Pacific Fire & Marine Ins. Co., 7 L. R. 
 
 C. P., 65 ; 20 W. R„ 280 ; 36 L. T. (N. 
 
 8.), 130, 1530 
 v. Pacific Fire & Marine Ins. Co., 21 L. 
 
 T. (N. S.}, 408, 
 
 ■». Pitcher, 3 B. & P., 164 ; 3 Esp., 134, 
 
 371, 1893 
 v. Royal Exchange Ass. Co., 7 East, 35 ; 3 
 
 Smith, 48, 23 
 - — V. Thornton, 8 Exch., 425, 793, 903 
 ■». Wallis, 2 Mau. «& Sel., 340; 3 Camp., 
 
 440, 1439 
 
 Andes Ins. Co. «. Shipman, 77 111., 189, 
 
 288, 468, 533 
 Andree ». Fletcher, 2 Term, 161 ; 3 id., 266, 
 
 1181 
 Andrews v. Ellison, 6 Moore, 199, 
 
 V. Essex Fire & Marine Ins. Co., 3 Mason, 
 
 6, 624, 1180 
 
 «. Marine Ins. Co., 9 Johns, 33, 351 
 
 V. Mellish, 5 Taunt., 496, 432 
 
 ■». Ocean Ins. Co., 10 Rob. (La.), 333, 
 
 1030 
 
 V. Union Mutual Fire Ins. Co., 37 Me. 
 
 256, 285 
 
 Angell D. Hartford Fire Ins. Co., 59 N. Y., 171, 
 
 883 
 
TABLE OF CASE3. 
 
 VI 1 
 
 Angelrodt v. Delaware Ins. Co., 31 Mo., 593, 
 
 93 
 
 Annapolis Railroad v. Baltimore Fire Ins. Co., 
 
 32 Md., 37, 1005 
 
 Annen v. Woodman, 3 Taunt., 299, 1233 
 
 Anon, 1 Johns. 312, 381 
 
 1 Johns., 315, 719 
 
 1 Ld. Raymond, 480, 719 
 
 Skin., 327, 70 
 
 Skin., 404, 1537 
 
 Anson «. Winnesheik Ins. Co., 33 Iowa, 84, 
 
 471 
 Anthony v. -.Etna Ins. Co., 1 Abb. Cir. C, 343, 
 
 1013 
 
 V. Moline, 5 Taunt., 711, 1051 
 
 Appleby «. Aster Fire Ins. Co., 54 N. Y., 353, 
 
 655, 1455 
 
 V. Fireman's Fund Ins. Co., 45 Barb., 454, 
 
 655 
 Appleton Mutual Fire Ins. Co. v. Jesser, 5 Al- 
 len, 446, 154 
 Aranzamendi v. Louisiana Ins. Co., 2 La. (O. 
 S.), 432, 1510 
 Arcangelo v. Thompson, 2 Camp., 620, 
 
 118, 1527 
 
 Archer v. Merchants & Manufacturers Ins. 
 
 Co., 43 Mo., 434, 163, 1215 
 
 Archibald v. Laird, Faculty Dec. 1787 to 1792, 
 
 p. 395; id. 1793 to 1796, p. 143, 1489 
 
 ■». Mercantile Ins. Co., 3 Pick., 70, 1027 
 
 V. Mutual Life Ins. Co., 38 Wis., 543, 
 
 61, 1533 
 
 Arkansas Ins. Co. v. Bostick, 27 Ark., 539 
 
 330 
 
 Armet v. Innes, 4 Moore, 150, 437 
 
 Armroyd v. Union Ins. Co., 2 Binn., 394, 
 
 269 
 
 V. Union Ins. Co., 3 Binn., 437, 575 
 
 Armstrong v. Turquand, 9 Ir. C. L. R., 32, 
 
 458, 961 
 
 Arnet v. Mechanics Mut. Ins. Co., 23 Wis., 
 
 516, 768, 978 
 
 Arnold v. United Ins. Co., 1 Johns. C, 363, 
 
 811 
 Arthur Average Ass., In re Ex parte Hargrave, 
 
 10 L. R. Ch., 543, 1446, 1463 
 
 Ashland Mut. Ins. Co. v. Housinger, 10 Ohio 
 
 St., 10, 283 
 
 Ashley ■». Ashley, 3 Sim., 149, 167, 183 
 
 — ^ V. Pratt, 16 Mee. & W., 471 ; 1 Exch., 357 ; 
 
 17 L. J. Ex., 135, 447 
 
 Ash-worth v. Builders Mutual Fire Ins. Co., 
 
 113 Mass., 432, 491, 825 
 
 Aspinwall v. Meyer, 2 Sandf., 180, 1055 
 
 Associated Firemen's Ins. Co.s. Assum, 5 Md., 
 
 165, I486 
 
 Astor V. Union Ins. Co., 7 Cow., 203, 488, 
 
 818, 1061, 1494, 1495 
 
 Athonseum Life Ass. Soc, In re. Ex parte 
 
 Prince of Wales Life Ins. Co., 3 Dl-. 
 
 G. & J., 660; 5 Jur. (N. 8.), 558; 38 L. 
 
 J. Ch., 335, 
 Atherton v. Brown, 14 Mass., 153, 1515 
 
 ■». Phoenix Ins. Co., 109 Mass., 33, 708 
 
 Atkins e. Boylston Fire & Marine Ins. Co., 5 
 
 Met., 439, 1371 
 
 Atkinson B.Abbott, 11 East., 135; 1 Camp., 
 
 535, 631 
 
 V. Great Western Ins. Co., 4 Daly, 1, 
 
 393 
 
 V. Gylby, 31 L. J. Ch., 848, 167 
 
 Atlantic Fire Ins. Co. v. Goodall, 29 N. H., 182, 
 
 808 
 Atlantic Ins. Co. ■». Lunar, 1 Sandf. Ch., 91, 
 
 449, 1469 
 V. Storrow, 1 Edw. Ch., 621 ; 5 Paige Ch., 
 
 285, 1328 
 
 V. Wright. 33 111., 463, 467, 977, 1117 
 
 Atlantic Mut. Ins. Co. v. Bird, 2 Bos., 195, 
 
 575 
 
 V. Fitzpatrick, 3 Gray, 279, 154, 1052 
 
 — V. Goodall, 35 N. H., 328, 868 
 
 Atlantic Mutual Fire Ins. Co. v. Concklin, 6 
 
 Gray, 73, 1318 
 
 «. Sanders, 36 N. H., 252, 816 
 
 ■». Young, 38 N. H., 451, 61, 957 
 
 Attorney General v. Cleobury, 4 Exch., 65 ; 18 
 
 L. J. Ex., 395, 1314 
 
 Atty «. Lindo, 4 B. & P., 236, 593 
 
 Atwood V. Union Mutual Fire Ins. Co., 28 N. 
 
 H., 334, 390 
 
 Aubert «. Gray, 3 B. & S., 163; 9 Jur. (N. S.), 
 
 714; 33 L. J. Q. B., 50; 11 W. R., 27; 
 
 7 L. T. (N. S.), 469, 145 
 
 ■». Jacobs, Wightwick, 118, 1474 
 
 Audenreid v. Mercantile Mut. Ins. Co., 60 N. 
 
 Y., 483, 417 
 
 Audley v. Duff, 3 B. & P., Ill, 1338 
 
 Audubon v. Excelsior Ins. Co., 27 N. Y., 216, 
 
 315, 1225 
 Augusta Insurance and Banking Co. v. Abbott, 
 
 13 Md., 348, 359, 439, 563, 1199 
 
 Aurora Fire Ins. Co. «. Eddy, 49 111., 106, 
 
 1519 
 
 V. Eddy, 55 111., 213, 467, 506, 1387, 1521 
 
 V. Johnson, 46 Ind., 315, 
 
 207, 334, 544, 744, 776, 797, 964, 1149 
 Austin V. Drewe, 6 Taunt., 436 ; Holt, N. P., 
 126; 2 Marsh., 130; 4 Camp., 360, 
 
 1030 
 
 Australian Agricultural Co. 8. Saunders, 10 L. 
 
 R. C. P., 668, 877 
 
Vlll 
 
 TABLE OF CASES. 
 
 Aveson ». Kinnaird, 6 East, 188, 516 
 
 Ayer «. New England Mutual Life Ins. Co., 
 
 109 Mass., 430, 934 
 
 Ayres v. Hartford Fire Ins. Co., 17 Iowa, 176, 
 
 470, 727, 1087, 1105, 1387 
 
 V. Hartford Ins. Co., 21 Iowa, 193, 
 
 486, 832, 1884 
 
 V. Home Ins. Co., 21 Iowa, 185, 471, 486 
 
 Azeria v. Insurance Go. of Pennsylvania, 8 
 
 Wash. C. C, 177, 540 
 
 B. 
 
 Babbitt v. Sun Mut. Ins. Co., 33 La. An., 314, 
 
 15, 1018 
 Babcock n. Montgomery County Mut. Ins. Co., 
 
 4 N. Y., 326 ; 6 Barb., 637, 285 
 
 Badger v. American Popular Life Ins. Co., 103 
 
 Mass., 244, 372 
 
 V. Ocean Ins. Co., 23 Pick., 347, 1422 
 
 Baer v. Phoenix Ins. Co., 4 Bush., 242, 877 
 Bailey v. ^toa Ins. Co., 10 Allen, 286, 707 
 
 V. Hope Ins. Co., 56 Me., 474, 
 
 755, 1138 
 
 v. South Carolina Ins. Co., 2 Brev., 354, 
 
 1157, 1277 
 Bain v. Case, 8 C. &. P., 496; Moo. & M., 262, 
 
 488 
 
 V. Globe Ins. Co., 9 How. Pr., 448, 
 
 1282 
 ■». Kippen, Faculty Dec. 1781 to 1787, p. 
 
 196, 1489 
 
 Bainbridge «. Neilson, 10 East, 329 ; 1 Camp., 
 
 237, 1429 
 
 Baines v. Ewing, 1 L. R. Ex., 330 ; 4 H. & C, 
 
 511 ; 35 L. J. Ex., 194; 14 W. R., 782; 
 
 14 L. T. (N. 8.), 733, 1087 
 
 V. Holland, 10 Exch., 803, 295 
 
 ■». Woodfall, 6 C. B. (N. S.), 657; 28 L. J. 
 
 C. P., 338; 6 Jur. (N. S.), 19, 1217 
 Baker ii. Cotter, 45 Me., 236, 1070 
 ». Home Life Ins. Co., 2 Hun. (N. T.), 403 ; 
 
 4 N. T. S. C, 583, 490, 1394 
 B. Langhorn, 6 Taunt, 519 ; 4 Camp., 396 ; 
 
 3 Marsh., 215, 1290 
 
 V. Ludlow, 2 Johns. C, 390, 298 
 
 «. Manufacturers Ins. Co., 13 Gray, 603, 
 
 849 
 V. Scottish Sea Ins. Co., 17 C. C. S., 417; 
 
 37 Scot. Jur., 178, 969 
 V. Scottish Sea Ins. Co., 18 C. C. S., 691 ; 
 
 28 Scot. Jur., 393, 580 
 
 ' «. Towry, 1 Starkie, 436, 
 
 Baker v. Union Life Ins. Co., 43 N. Y. (4 Hand) 
 
 283; 6 Abb. Pr. (N. S.), 144; 37 How. 
 
 Pr., 136, 931 
 
 V. Young, 47 Mo., 453, 1533 
 
 Bakewell v. United States Ins. Co., 3 Johns. C, 
 
 346, 1494 
 
 Baldwin ■». Chouteau Ins. Co., 56 Mo., 151, 
 
 327 
 v. New York Life Insurance and Trust 
 
 Co., 3 Bos., 530, 1367 
 
 Ballard v. Merchants Ins. Co., 9 La. (O. 8.), 
 
 258, 563 
 
 Baltimore Fire Ins. Co. v. Loney, 20 Md., 20, 
 
 453, 871, 1011 
 Baltimore Ins. Co. ■». M'Fadon, 4 H. & J., 31, 
 
 166. 456 
 
 V. Mc Gowan, 16 Md., 47, 708 
 
 V. Taylor, 3 H. & J., 198, 197, 300 
 
 Bamberger c. Commercial Credit Mut. Ass. 
 
 Co., 15 C. B., 676; 1 Jur. (N. 8.), 500, 
 
 953 
 Bank of South Carolina v. Bicknell, 1 CliflE'., 
 
 85, 1335 
 
 Bank of United States v. Deveaux, 5 Crauch, 
 
 61. 743 
 
 Banting v. Niagara District Mut. Ins. Co., 25 
 
 U. C. Q. B., 431, 1144 
 
 Barber v. Fleming, 5 L. R. Q. B., 59; 39 L. J. 
 
 Q. B.,25; 18W. R.,254, 601 
 
 V. Fletcher, 1 Doug., 305, 833, 1199 
 
 Barclay v. Cousins, 3 East, 544, 1099 
 
 ■». Stirling, 5 Mau. & Sel., 6, 603 
 
 Barelli v. Hagan, 13 La. (O. 8.), 580, 617 
 
 Bargett «. Orient Mut. Ins. Co., 3 Bos., 385, 
 
 1309, 1503 
 Baring v. Christie, 5 East, 398, 647 
 
 V. Clagett, 3 B. & P., 301, 1373 
 
 V. Royal Exchange Ass. Co., 5 East, 99, 
 
 814, 1273 
 
 V. Vaux, 3 Camp., 541, 680 
 
 Barker v. Baltimore & Ohio R. R. Co.,.23 Ohio 
 
 St., 45, 609 
 
 V. Blakes, 9 East, 283, 32, 633, 809 
 
 V. Janson, 3 L. R. C. P., 303; 37 L. J. C. 
 
 P., 105; 17 L. T. (N. S.), 473; 10 W. 
 
 R., 399, 1476 
 
 ■». Marine Ins. Co., 2 Mason, 369, 701 
 
 V. North British Ins. Co., 9 S. & D., 869; 
 
 6 id., 83; 3 Scot. Jur., 567, 928 
 
 ■». Phoenix Ins. Co., 8 Johns., 307, 
 
 3, 388, 807, 1110 
 Barlow v. Leckie, 4 Moore, 8, ggo 
 
 V. Mcintosh, 12 I!ast, 311, 648 
 
 V. Ocean Ins. Co., 4 Met., 270, 88, 273 
 
 Barnes «. Piedmont & Arlington Life Ins. Co., 
 
 5 Ins. L. J., 141, 346 
 
TABLE OF CASES. 
 
 IS 
 
 Barnes v. Union Mutual Fire Ins. Co., 45 N. 
 
 H., 21, 61, 157, 832 
 
 V. Union Mutual Fire Ins. Co., 51 Me., 110, 
 
 1246, 1486 
 Barnewall v. Church, 1 Caines, 217, 
 
 1013, 1242 
 
 Barney v. Maryland Ins. Co., 5 H. & J., 139, 
 
 10, 12, 113, 223 
 
 Barre Boot Co. v. Milford Mutual Fire Ins. 
 
 Co., 7 Allen, 42, 662 
 
 Barrett v. Jermy, 3 Exch., 535 ; 18 L. J. Ex., 215, 
 
 967 
 
 «. Union Ins. Co., 7 Cush., 175, 
 
 60, 854, 1176 
 
 Bsiron v. Fitzgerald, 9 L. J. (N. S.) C. P., 153 ; 
 
 6 Bing. (N. C), 201 ; 4 Jur., 88, 485 
 Bairow o. Bell, 4 B. & C, 736 ; 7 D. & R., 244 ; 
 
 1324 
 Barry v. Equitable Life Ass. Soc, 59 N. Y., 
 
 587; 14 Abb. Pi-. (N. S.), 385, n, 
 
 1534 
 
 a Louisiana Ins. Co., 11 Martin (La.), 680, 
 
 194, 487 
 
 ». Mutual Life Ins. Co., 49 How. Pr., 504, 
 
 1534 
 Barteau v. Phoenix Mutual Life Ins. Co., 1 
 
 Hun. (N. T.), 430; 3 N. T. S. C, 576, 
 
 1294 
 Bartholomew v. Merchants Ins. Co., 25 Iowa, 
 
 507, 471, 477 
 
 Bartlet ®. Walter, 13 Mass., 367, 691 
 
 Bartlett ®. Pentland, 10 B. & C, 760; 8 L.J. 
 
 K. B., 264, 897 
 ■». Union Mutual Fire Ins. Co., 46 Me., 
 
 500, 766, 1114 
 
 Barton v. Anthony, 1 Wash. C. C, 317, 
 
 1164 
 
 V. Home Ins. Co., 43 Mo., 156, 730 
 
 Barzillai v. Lewis, 3 Doug., 126, 817, 1273 
 
 Basch V. Humboldt Mutual Fire Ins. Co., 35 
 
 N. J., 429, 901, 1115, 1136 
 
 Bashford ». Cann, 33 Beav., 109, 1351 
 
 Batchelor v. Albany City Ins. Co., 6 Abb. Pr. 
 
 (N. S.), 240; 1 Sweeney, 346; 37 How. 
 
 Pr., 399, 1163 
 
 v. People's Fire Ins. Co., 40 Conn., 56, 
 
 360 
 
 Bates v. Commercial Ins. Co., 1 Cin. Sup. Ct., 
 523, 872, 1386 
 
 V. Commercial Ins. Co., Z Cin. Sup. Ct., 
 
 195. 1390 
 
 V. Equitable Ins. Co., 10 Wall., 33, 706 
 
 V. Grabham, Holt K. B., 469 ; 2 Salk., 444, 
 
 1174 
 
 Bates V. Hewitt, 4 F. & F., 1023; 3 L. R. Q. B., 
 595; 15 W. R., 1173; 36 L. J. Q. B., 
 382, 263,483 
 
 Batre ». Louisiana Ins. Co., 13 La. (O.S.),577, 
 
 234 
 Battaile v. Merchants Ins. Co., 3 Rob. (La.), 
 
 384, 271, 857 
 
 Battles V. York County Mutual Fire Ins. Co., 
 
 41 Me., 208, 670, 801 
 
 Baubie «. Mtaa, Ins. Co., 2 Dil. Cir. Ct., 156, 
 
 1067 
 Bauduy d. Union Ins. Co., 2 "Wash. C. C, 391, 
 
 994 
 Baxendale «. Harding, 4 H. & N.,445; 28 L. 
 
 J. Ex., 236, 653 
 
 Baxter v. Chelsea Mutual Fire Ins. Co., 1 Al- 
 len, 294, 1085 
 
 V. Massasoit Ins. Co., 13 Allen, 320, 
 
 914 
 
 V. New England Ins. Co., 3 Mason, 96, 
 
 1340 
 Bayard v. Massachusetts Fire and Marine Ins. 
 
 Co., 4 Mason, 256, 810 
 
 Bay State Mutual Fire Ins. Co. v. Sawyer, 13 
 
 Cush., 64, 1055 
 
 Bayles e. Hillsborough Ins. Co., 27 N. J., 163, 
 
 77 
 Bayley v. Onondaga County Mutual Ins. Co., 
 
 6 Hill, 476, 362 
 
 Bazett V. Meyer, 5 Taunt, 824, 630 
 
 Beacon Fire and Life Ins. Co. v. Gibb, 1 
 
 Moore P. C. C. (N. S.), 73; 9 Jur. (N. 
 
 S.), 185 ; 7 L. T. (N. S.), 574; 11 W. R., 
 
 194, 740 
 
 Beadle «. Chenango County Mutual Ins. Co., 
 
 3 Hill, 161, 933 
 
 Beal V. Park Fire Ins. Co., 16 Wis., 241, 469 
 Beale «. Pettet, 1 Wash. C. C, 241, 10G4 
 
 BealsB. Home Ins. Co., 36 N. Y., 522; 36 
 
 Barb., 614, 1159 
 
 Bean v. Atlantic and St. Lawrence R. R. Co., 
 
 58 Me., 82, 1344 
 
 V. Stupart, 1 Doug., 11, 1243 
 
 Beams v. Columbian Ins. Co., 48 Barb., 445, 
 
 435, 1100 
 Beaston v. Hawarth, 6 Term, 532, 411 
 
 Beatty v. Lycoming County Ins. Co., 52 Penn., 
 
 St., 456, 501 
 
 - — v. Lycoming County Mutual Ins. Co., 66 
 
 Penn. St., 9, 834, 1131 
 
 Bebee v. Hartford Mutual Ins. Co., 35 Conn., 
 
 51, 252, 1080 
 
 Beck V. Germania Ins. Co., 23 La. An., 510, 
 
 557 
 Beckett v. West of England Marine Ins. Co., 
 
 25 L. T. (N. S.), 739, 185 
 
 Beckwith «. Bullen, 8 El. & Bl., 683; 4 Jur. 
 
 (N. S.), 558 ; 37 L. J. Q. B., 63, 1291 
 1). Sydebotham, 1 Camp., 116, 253, 524 
 
TABLE OF CASES. 
 
 Bedell e. Commercial Mut. Ins. Co., 3 Bos., 
 
 147, 511 
 
 Bedford Commercial Ins. Co. v. Parker, 3 
 
 Pick., 1, 608, 616 
 
 Beemer «. Anchor Ins. Co., 16 TJ. C. Q. B., 485, 
 
 79 
 
 ■». Ahearne, 13 Irish Eq., 376, 1354 
 
 s. Ansley, 16 East, 141, 115 
 
 ■». Bell, 3 Camp., 475, 353, 989 
 
 V. Beveridge, 4 Ball., 273; 1 Binn, 
 
 63 n, 3 
 
 V. Broomfield, 15 East, 364, 683 
 
 V. Carstairs, 14 East, 374; 3 Camp., 543, 
 
 518, 814 
 
 ®. Columbian Ins. Co., 3 Johns., 98, 
 
 376, 618 
 
 V. Firemen Ins. Co., 3 Bob. (La.), 433, 
 
 101 
 
 ®. Fireman's Ins. Co., 5 Eob. (La.), 446, 
 
 563, 499, 1017 
 
 V. Gilson, 1 B. & P., 345, 630 
 
 V. Hobson, 8 Camp., 372; 16 East, 240, 
 
 310 
 
 V. Humphries, 3 Starkie, 345, 718, 
 
 1095 
 
 ■». Jansen, 1 Mau. & Sel., 201, 115 
 
 ■». Marine Ins. Co., 8 S. & R., 98, 356, 
 
 1302 
 
 «. Nixon, Holt N. P., 433, 13 
 
 V. Beid, 1 Mau. & Sel., 736, 814 
 
 V. Western Marine and Fire Ins. Co. 3 
 
 Bob. (La.), 438, 101 
 
 v. Western Marine and Fire Ins. Co., 5 
 
 Bob. (La.), 433, 499, 563, 1017 
 
 Bellatty v. Thomaston Ins. Co.; 61 Me., 414, 
 
 801 
 
 Belleville Mut. Ins. Co. v. Van Winkle, 12 N. 
 
 J. Eq., 333, 345 
 
 Benedict v. Ocean Ins. Co., 31 N. Y., 389; 1 
 
 Daly, 8, 863 
 
 Benham v. United Guarantee & L. Ass. Co., 7 
 
 Exch., 744; 16 Jur., 691 ; 21 L. J., 317, 
 
 1526 
 
 Benjameni). Saratoga County Mutual Ins. Co., 
 
 17 N. Y., 415, 862, 1336 
 
 Benner v. Equitable Safety Ins. Co., 6 Allen, 
 
 223, 1341 
 
 Bennett v. City Ins. Co., 115 Mass., 241, 
 
 1169 
 Benson v. Chapman, 3 H. L. Cas., 696 ; 5 C. 
 B.,330; 8 id., 950; 6 M. & G., 792, 
 
 24, 581, 1313, 1443 
 
 Bentaloe v. Pratt, Wall. C. C, 58, 1468 
 
 Bentley v. Columbia Ins. Co., 17 N. Y., 431 ; 
 
 19 Barb., 595, 1084 
 
 Berens v. Ruckfer, 1 W. Bl., 313, 230 
 
 Bergson v. Builders Ins. Co., 38 Cal., 541, 
 
 163, 166, 941 
 
 Berkshire Mut. lus. Co. ■». Sturgis, 13 Graj-, 
 
 177, 1394 
 
 Bermon i>. Woodbridee, 3 Doug., 781, 
 
 1333 
 
 1379 
 
 Bernardi v. Motteux, 3 Dong., 575, 
 
 Bersch v. Sinnissippi Ins. Co., 28 Ind, 64, 
 
 105S 
 Bersche v. Globe Mut. Ins. Co., 31 Mo., 546, 
 
 IIM 
 
 V. St. Louis Mutual Fire & Marine Ins. 
 
 Co., 31 Mo., 555, 674, 1161 
 
 Berthoud v. Atlantic Marine & Fire Ins.. Co., 
 
 13 La. (O. S.), 539, 347 
 
 V. Bichmond, Faculty Dec, 1801 to 1807, 
 
 p. 144, 381 
 
 Best -It. New York Life Ins. Co., 3 Cin. Sup. 
 
 Ct., 339, 1191 
 
 Betham v. Fernie, 4 Ir. C. L. B., 92, 
 
 1281 
 Bethune v. Neilson, 3 Caines, 139, 896 
 
 Bevan v. Bank of United States, 4 Whart., 
 
 301, 615 
 
 Bevin v. Connecticut Mutual Life Ins. Co., 2'i 
 
 Conn., 344, 496 
 
 Biays v. Chesapeake Ins. Co., 7 Cianch, 415, . 
 
 1059, 1501 
 Bibend «. London & Liverpool Fire & Life 
 
 Ins. Co., 30 Cal., 78, 178 
 
 Biccard v. Sheppard, 14 Moore P. C. C, 471 ; 
 
 10 W. B., 136; 5 L. T. (N. S.), 504, 
 
 1368 
 Bicknell v. Lancaster Ins. Co., 58 N. Y., 677 ; 
 
 1 N. Y. S. C, 315, 38 
 
 Bidwell V. Astor Mut. Ins. Co., 16 N. Y., 263, 
 
 1107 
 V. Northwestern Ins. Co., 19 N. Y., 170 ; 
 
 34 id., 303, 46* 
 «. St. Louis Floating Dock Ins. Co., 40 
 
 Mo., 43, 349 
 
 Bigelow V. Libby, 117 Mass., 359, 
 
 1321 
 Bigler v. New York Central Ins. Co., 30 N. Y., 
 
 403; 30 Barb., 635, 853 
 
 Bignold V. Audland, 9 L. J. (N. 8.) Ch., 266, 
 
 731 
 Bilbrough v. Metropolis Ins. Co., 5 Duer, 587, 
 
 286, 1133 
 Billings «. Tolland County Mut. Ins. Co., 20 
 
 Conn., 139, 1458 
 
 Billow V. Western Marine & Fire Ins. Co., 1 
 
 La. An., 57, 1500 
 
 Bilson V. Manufacturers Ins. Co., 7 Am. L. 
 
 Reg., 661, 96, 17J 
 
TABLE OF CASES). 
 
 XI 
 
 Bird V. Appleton, 8 Term, 562, 221, 631, 646 
 liirdsey v. City Fire Ins. Co., 26 Conn., 165, 
 
 161 
 Birmingham v. Empire Ins. Co., 43 Barb., 457, 
 
 707, 1324, 1875 
 
 Bishop V. Pentland, 7 B. & C, 219 ; 1 M. & R. 
 
 49, llJo 
 
 Bisset v. Royal Exchange Ass. Co., 1 S. & D., 
 
 175, 1163 
 
 Bixby «. Franklin Ins. Co. 8 Pick., 86, 
 
 248 
 Bize 0. Dickason, 1 Term, 285, 1395 
 
 Blaauwpot «. Da Costa, 1 Eden, 180, 1353 
 
 Black «. Enterprise Ins. Co., 33 Ind., 233, 
 
 69, 968 
 ■». Marine Ins. Co., 11 Johns., 387, 228 
 
 v. Winneshiek Ins. Co., 81 Wis., 74, 
 
 764 
 
 Blackburne v. Thompson, 15 East, 81 ; 3 Camp., 
 
 61, 633 
 
 Blackenhagen v. London Ass. Co., 1 Camp., 
 
 454, 413 
 
 Blackett v. Royal Exchange Ass. Co., 2 Tyrw., 
 
 266; 1 L. J. (N. S.), 101*; 3 Cromp. & 
 
 J., 244, 1453, 1496 
 
 Blackhurst v. Cockell, 3 Term, 860, 778 
 
 Blackstone v. Allemania Fire Ins. Co., 56 N. 
 
 T., 104; 4 Daly, 399, 1185 
 
 Blaeser v. Milwaukee Mechanics Mut. Ins. 
 
 Co., 37 Wis., 81, 150, 1335 
 
 Blagg V. PhcBnix Ins. Co., 3 Wash. C. C, 5, 
 
 510 
 Blagge V. New York Ins. Co., 1 Caines, 549, 
 
 811 
 Blake v. Exchange Mut. Ins. Co., 12 Gray, 
 265, 91, 834, 1000, 1118, 1310, 1491 
 Blakeley «. Phcenix Ins. Co., 20 Wis., 205, 
 
 1142 
 
 Blanchard v. Atlantic Mutual Fire Ins. Co., 
 
 83 N. H., 9, 77, 936 
 
 V. Dyer, 21 Me., Ill, 77 
 
 V. Equitable Safety Ins. Co., 13 Allen, 
 
 386, 328 
 
 V. Waite, 28 Me., 51, 823, 718 
 
 Blanque v. Peytavin, 4 Martin (La.), 458, 
 
 1271 
 
 Blocks. Columbian Ins. Co., 42 N. Y. (8 Hand), 
 
 393; 3 Rob., 296, 991 
 
 Blood ®. Howard Fire Ins. Co., 12 Cush., 472, 
 
 288, 1458 
 
 Blossom «. Lycoming Fire Ins. Co., 5 Ins. L." 
 
 J., 303, 1126 
 
 Blyth ®. Shepherd, 9 M. & W.,. 763; 11 L. J. 
 
 Ex., 393; 6 Jur., 489, 979 
 
 Boardman v. Merrimac Mutual Fire Ins. Co., 
 
 8 Cush., 588, 650 
 
 Boardman v. New Hampshire Mutual Fire 
 
 Ins. Co., 80 N. H., 551 1196, 1206i 
 
 Boatmans Fire & Marine Ins. Co. v. Parker, 23 
 
 Ohio St., 85, 545 
 
 Boatwright v. .^tna Ins. Co., 1 Strob., 381, 
 
 659 
 Bobbitt V. Liverpool, London & Globe Ins. 
 
 Co., 66 N. C, 70, 795, 957 
 
 Bodine v. Exchange Fire Ins. Co., 51 N. Y., 
 
 117, 1079 
 
 Bodle V. Chenango County Mut. Ins. Co., 3 N. 
 
 Y., 58, 737, 1137 
 
 Boehm v. Bell, 8 Term 154, 1234 
 
 ®. Combe, 3 Man. & Sel., 173, 193 
 
 V. Williamsburg Ins. Co., 35 N. Y, 131, 
 
 910 
 Boggs V. American Ins. Co., 30 Mo., 68, 265 
 Bohlen «. Delaware Ins. Co., 4 Binn., 430, 
 
 17 
 Bohringer v. Empire Mutual Life Ins. Co., 3 
 
 N. Y., S. C, 610, 1490 
 
 Boland v. Whitman, 33 Ind., 64, 1058 
 
 Bold V. Rotheram, 8 Q. B., 797; 15 L. J. Q. B., 
 
 274; 10 Jur., 878, 434 
 
 Bolland v. Disney, 3 Russ., 351, 893 
 
 Bolton ■». Gladstone, 5 East, 155, 814 
 
 Bond V. Brig " Cora," 2 Wash. C. C, 80, 435 
 
 ». Gonsales, Holt K. B.,469;3 Salk.,445, 
 
 437 
 
 ■». Insurance Co., 9 Phila., 149, 1533 
 
 V. Nutt, Cowper, 601 ; 1 Doug., 867, n., 
 
 1386 
 Bondrett «. Hentigg, Holt N. P., 149, 1030 
 Bonham v. Iowa Central Ins. Co., 25 Iowa, 
 
 328, 40, 558, 1313 
 
 Bonner v. Home Ins. Co., 18 Wis., 677, 
 
 125, 303, 534, 588, 543 
 Boon «. ^tna Ins. Co., 40 Conn., 575 ; 12 Blatch., 
 
 24, 780 
 
 Boos V. World Mutual Life Ins. Co., 4 Hun. 
 
 (N. Y.), 133 ; 6 N. Y. S. C, 364, 376 
 Boot & Shoe Manufacturers Ins. Co. v. Mel- 
 rose Soc, 117 Mass., 199, 153 
 Booth V. Gair, 15 C. B. (N. S.), 291 ; 9 Jur. (N. 
 
 S.), 1326; 33 L. J. C. P., 99; 12 W. R., 
 
 105, 1504 
 
 1). Hodgson, 6 Term, 405, 366 
 
 ■». Wonderly, 35 N. J., 250, 1094 
 
 Borden v. Hingham Mutual Fire Ins. Co., 18 
 
 Pick., 538, . 1464 
 
 Bordes v. Hallet, 1 Caines, 444, 615 
 
 Borradaile v. Hunter, 5 M. & G., 639 ; 13 L. J. 
 
 C. P., 335 ; 7 Jur., 448, 1359 
 
 Bosley v. Chesapeake Ins. Co., 3 G. & J., 450, 
 
 5 
 Bostick V. Maxey, 5 Sneed, 173, 1058 
 
Xll 
 
 TABLE OF CASES. 
 
 Boston, The Schooner, 1 Sumn., 338, 435 
 
 Boston & Salem Ice Co. v. Royal Ins. Co., 13 
 
 Allen, 381, 713 
 
 Bostwlck «. Bass, 99 Mass., 469, 188 
 
 Bothwick D. LangmuJr, 15 S. & D., 1306, 
 
 1309 
 Bottomly o. Bovlll, 5 B. & C, 210; 7 D. & R., 
 
 703;4L.J. K. B., 337, 412 
 
 Bouillon V. Lupton, 15 C. B. (N. S.), 113; 10 
 
 Jur. (N. 8.), 433; 33 L. J. C. P., 37; 11 
 
 W. R., 96S; 8 L. T. (N. S.), 575 ; 3 F. & 
 
 r., 736, 1338, 1355 
 
 Bousfield V. Barnes, 4 Camp., 338, 1475 
 
 Bowden v. Vaughan, 10 East, 415, 1300 
 
 Bowen v. Hope Ins. Co., 30 Pick., 375, 
 
 190, 1236 
 Bowditch Mutual Fire Ins. Co. v. Buffum, 3 
 
 Gray, 550, 55 
 
 V. Winslow, 8 Gray, 38 ; 3 id., 415, 668 
 
 Bowery Fire Ins. Co. v. New York Fire Ins. 
 
 Co., 17 Wend., 359, 336, 263, 1184 
 
 Bowker v. Smith, Faculty Bee. 1808 to 1810, p. 
 
 571, 343 
 
 Bowman v. Agricultural Ins. Co., 3 N. Y. 8. 
 
 C, 261 ; 59 N. Y., 531, 501, 913 
 
 V. Franklin Fire Ins. Co., 40 Md., 630, 
 
 670, 1486 
 
 «. Pacific Ins. Co., 37 Mo., 153, 389 
 
 Bowne v. Shaw, 1 Caines, 489, 625 
 
 Bowring v. Elmsley, 7 Term, 316, n., 1335 
 
 Boyce «. Moore, 3 Call., 196, 787 
 
 Boyd «. Dubois, 3 Camp., 133, 1021 
 
 Boyfleld v. Brown, 3 Strange, 1065, 1418 
 
 Boyle V. Franklin Fire Ins. Co., 7 W. & S., 76, 
 
 187 
 ■». North Carolina Ins. Co., 7 Jones' Law, 
 
 373, 836, 1111 
 
 Boynton v. Clinton & Essex Mut. Ins. Co., 16 
 
 Barb., 354, 73, 156, 1004, 1113 
 v. Farmers Mutual Fire Ins. Co., 43 Vt, 
 
 356, 108 
 V. Middlesex Mutual Fire Ins. Co., 4 Met., 
 
 312, 765 
 
 Braden v. Louisiana State Ins. Co., 1 La. (O. 
 
 S.), 330, 1389 
 
 Bradford v. Boylston Fire & Marine Ins. Co., 
 
 11 Pick., 163, 480 
 
 ffl. Levy, R. & M., 331 ; 2 C. & P., 137, 1032 
 
 Bradhurat v. Columbian Ins. Co., 9 Johns., 9, 
 
 607, 611, 848 
 Bradley ■». Mutual Benefit Life Ins. Co., 45 N. 
 
 Y., 422 ; 3 Lans., 341, 393, 533 
 
 D. Nash-ville Ins. Co., 8 La. An. 708, 
 
 184 
 
 V Potomac Fire Ins. Co., 83 Md., 108, 
 
 935 
 
 Bradlie v. Maryland Ins. Co., 12 Pet., 378, 
 
 1435 
 Bradstreet v. Neptune Ins. Co., 3 Sumn., 600, 
 
 1375 
 Brady «. Northwestern Ins. Co., 11 Mich., 435, 
 
 1161 
 
 B. Western Ass. Co., 17 TJ. C. C. P., 597, 
 
 770 
 Bragdon v. Appleton Mutual Fire Ins. Co., 43 
 
 Me., 259, 917, 831 
 Bragg V. Anderson, 4 Taunt, 339, 445 
 V. New England Fire Ins. Co., 35 N. H., 
 
 289, 108 
 
 Braik v. Douglas, 4 Myl. & Cr., 320, 994 
 
 Bramhall v. Sun Mut. Ins. Co., 104 Mass., 510, 
 
 1448 
 Bramstein v. Crescent Mut. Ins. Co., 24 La. 
 
 An., 589, 325, 400 
 
 Brandon v Curling, 4 East, 410, 366 
 
 Brannin «. Mercer County Ins. Co., 23 N. J., 
 
 93, 157 
 
 Branton v. Taddy, 1 Taunt., 6, 1461 
 
 Braunstein «. Accidental Death Ins. Co., 1 B. 
 
 & S., 783; 8 Jur. (N. S.), 506; 31 L. 
 
 J. Q.B., 17; 5 L. T. (N. S.), 550, 
 
 138, 1131 
 Brazier v. Clap, 5 Mass., 1, 437 
 
 Breasted v. Farmers Loan & Trust Co., 4 Hill., 
 
 73; 8 N. Y., 399, 1350 
 
 Breed v. Eaton, 10 Mass., 33, 423 
 
 Brennan a. Security Life Ins. Co., 4 Daly, 396, 
 
 792 
 Brewer- ■». Chelsea Mutual Fire Ins. Co., 14 
 
 Gray, 203, 840, 1492 
 
 D. Union Ins. Co., 12 Mass., 170, 1436 
 
 Brichta v. New York La Fayette Ins. Co., 3 
 
 Hall, 373, 180, 726 
 
 Bridge «. Niagara Ins. Co., 1 Hall (N. Y.), 
 
 247, 66 
 
 — - V. Niagara Ins. Co., 1 Hall (N. Y.), 433, 
 
 891 
 Bridges v. Hunter, 1 Mau. & Sel., 15, 338 
 
 Briggs V. Merchant Traders, Ass. Co., 13 Q. 
 
 B., 167; 18 L. J. Q. B., 178, 698 
 ■». North American Ins. Co., 58 N. Y., 
 
 446, 548 
 11. North British and Mercantile Ins. Co., 
 
 66 Barb., 335, 548 
 
 V. Peoples Ins. Co., 66 Barb., 830, 548 
 
 Brine v. Featherstone, 4 Taunt., 869, 798 
 
 Brinley v. National Ins. Co., 11 Met., 195, 
 
 1160 
 Brioso 11. Pacific Mut. Ins. Co., 4 Daly, 346, 
 
 818, 1169, 1365 
 British American Ins, Co. v. Joseph, 9 L. C.,' 
 
 448, 1024 
 
TABLE OF CASES. 
 
 xm 
 
 British Equitable Ins. Co. ». Great Western 
 Kailway Co., 38 L. J. Cli., 132, 314; 17 
 W. K., 48 ; 19 L. T. (N. S.), 476 ; 20 id., 
 422, 163, 1303 
 
 Britton v. Mutual Benefit Life Ins. Co., 3 N. 
 T. S. C, 220, 442, 791 
 
 ■». Royal Ins. Co., 4 F. & F., 905, 553 
 
 Brockelbank ®. Sugrue, 1 M. & Rob., 102; 5 
 C. & P., 21; 1 B. & Ad., 81; 8 L. J. 
 K. B., 371, 358, 683, 1078 
 
 Bromley, In re. Ex parte Wilkinson, 13 Sim., 
 475, 172 
 
 V. Hesseltine, 1 Camp., 75, 630 
 
 ■ ®. Williams, 32 Beav., 177 ; 32 L. J.Cli., 716 ; 
 
 11 W. R, 392 ; 8 L. T. (N. S.), 78, 74 
 
 Brook v. Louisiana State Ins. Co., 16 Martin 
 (La.), 640, 681 j 17 id., 530, 1473, 1512 
 
 Brookes v. Oriental Ins. Co., 7 Pick., 259, 
 
 608, 611, 843, 889, 1027, 1034, 1497 
 
 Brooks o. MacDonnell, 1 Tou. & Col.,500, 1350 
 
 Broomfield v. Southern Ins. Co., 5 L. R. Ex., 
 
 192; 39 L. J. Ex., 186; 22 L. T. (N. 
 
 S.), 371; 18W. R, 810, 212 
 
 Brotherstun ®. Barber, 5 Mau. & Sel., 418, 
 
 1430 
 Bi-ough «. Higgins, 2 Grattan, 408, 721 
 
 V. Whitmore, 4 Term, 206, 1009 
 
 Brouwer n. Appleby, 1 Sandf., 158, 1054, 1055 
 
 V. Hill, 1 Sandf, 629, 1054, 1055 
 
 Brown v. Carstairs, 3 Camp., 161, 1042 
 V. Cattaraugus Mut. Ins. Co., 18 N. Y., 
 
 385, 304, 459, 862 
 v. Commonwealth Mut. Ins. Co., 41 Penn. 
 
 St., 187, 669 
 
 V. Crooke, 4 N. T., 51, 1055 
 
 ■». Donnell, 49 Me., 421, 274, 568 
 
 ■». Freeman, 4 DeG. & S., 444, 1350 
 
 •». Girard, 4 Teates, 115, 786, 1247 
 
 V. Gore District Mutual Fire Ins. Co., 10 
 
 U. C. Q. B., 353, 1384 
 
 V. Hall, Faculty Dec. 1808 to 1810, p. 550, 
 
 699 
 
 D. Hartford Ins. Co., 3 Day, 58, 300 
 
 V. Hartford Fire Ins. Co., 117 Mass., 479, 
 
 234 
 V. Kings County Fire Ins. Co., 31 How. 
 
 Pr., 508, 1133, 1148 
 
 T. Neilson, 1 Caines, 525, 1061, 1062 
 
 ■». Peoples Mut. Ins. Co., 11 Cush., 280, 
 
 667 
 
 e. Phoenix Ins. Co., 4 Binn. 445, 20, 1410 
 
 V. Quincy Ins. Co., 105 Mass., 396, 1466 
 
 V. Railway Passenger Ass. Co., 45 Mo., 
 
 221, 46, 720 
 
 V. Roger Williams Ins. Co., 5 R. I., 394; 
 
 7 id., 301, 141, 773 
 
 Brown v. Royal Ins. Co., 1 El. & El., 853 ; 5 Jur. 
 (N. S.), 1255; 28 L. J. Q. B., 275, 
 
 1163 
 V. Savannah Mut. Ins. Co., 24 Ga., 97, 
 
 775 
 
 V. Smith, 1 Dow., 349, 18 
 
 ■». Stopyleton, 4 Bing., 119, 617 
 
 «. St. Nicholas Ins. Co., 2 J. & Sp., 231, 
 
 1156 
 V. Tayleur, 4 A. •& E., 241 ; 5 L. J. (N. S.) 
 
 K. B., 57; 5N. &M.,472, 414 
 
 ■». Tierney, 1 Taunt., 517, 680 
 
 V. Union Ins. Co., 4 Day, 179, 1271 
 
 V. Vigne, 12 Bast, 283, 1043 
 
 ■». Williams, 28 Me., 252, 1383 
 
 Browne ■». Insurance Co. of Pennsylvania, 4 
 
 Yeates, 119, 1371 
 
 Browning «. Provincial Ins. Co. of Canada, 
 
 5 L. R. P. C, 263 ; 38 L. T. (N. S.), 853 ; 
 
 31 W. R., 587, 73, 765 
 
 Bruce «. Garden, 5 L. R. Ch., 32; 39 L. J. 
 
 Ch., 334; 18 W. R, 384; 8 L. R. 
 
 Eq., 430, 1352 
 o. Jones, 1 H. & C, 769 ; 32 L. J. Ex., 132 ; 
 
 9 Jur. (N. S.), 638 ; 11 W. R, 871 ; 7 L. 
 
 T. (N. S.), 748, 1475 
 
 Brugnot v. Louisiana State Ins. Co., 13 La. (O. 
 
 S.), 336, 976 
 
 Bryant v. Commonwealth Ins. Co., 6 Pick., 
 
 131, 9, 80, 1437, 1451 
 
 V. Commonwealth Ins. Co., 13 Pick., 543, 
 
 784, 815, 1422 
 
 V. Ocean Ins. Co., 23 Pick., 200, 491 
 
 ■». Poughkeepsie Ins. Co., 17 N. Y., 300 ; 
 
 21 Barb., 154, 1213 
 
 •Bryce v. Lorillard Fire Ins. Co., 55 N. Y.,240; 
 
 3 J. & Sp.,'394; 46 How. Pr., 498, 
 
 403 
 
 Buchanan v. Hunter-Blair, Faculty Dec. 1778 
 
 to 1781, p. 166, 1489 
 
 V. Ocean Ins. Co., 6 Cow., 316, 
 
 701, 1460, 1497 
 Buck V. Chesapeake Ins. Co., 1 Pet., 151, 1204 
 Buckbee v. United States Annuity and Trust 
 
 Co., 18 Barb., 541, 913 
 
 Bucker v. London Ass. Co., 3 B. & P., 482 ; 3 
 
 Coper, 390, 1043 
 
 Buckley v. Garrett, 47 Penn. St., 204, 4C3 
 
 Budd V. Union Ins. Co., 4 McCord, 1, 
 
 720, 1441 
 Bufe V. Turner, 6 Taunt., 338; 2 Marsh., 46, 
 
 237 
 Buffalo City Bank v. Northwestern Ins. Co., 
 
 30 N. Y., 251, 34 
 
 Buffalo Steam Engine Works v. Sun Mut. Ins. 
 
 Co., 17 -N. Y., 401, 160 
 
XIV 
 
 TABLE OF CA"SES. 
 
 BufiFuin V. Fayette Mutual Fire Ins. Co., 3 
 Allen, 360, 340 
 
 ■». Bowditch Mutual Fire las. Co., 10 
 
 Cash., 540, 1490 
 
 Buell v. Connecticut Mutual Life Ins. Co., 5 
 
 Ins. L. J., 374 J 8 CUi. Leg. News, 203, 
 
 1300, 1525 
 
 Bulkley ®. Derby Fishing Co., 1 Conn., 571, 
 
 67, 626 
 
 ■ 11. Protection Ins. Co., 3 Paine, 83, 
 
 406, 1205 
 
 ■ ■». Star, 2 Day, 553, 734 
 
 Bullard v. Roger Williams Ins. Co., 1 Curtis, 
 
 148, 14, 1013, 1350, 1436 
 
 Bumstead n. Dividend Mut. Ins. Co., 13 N. Y., 
 
 81, 1143 
 
 Bunten v. Orient Mut. Ins. Co., 3 K.eyes, 667; 
 
 8 Bos., 448 ; 1 Abb. Dec, 257, 1168 
 Burbank e. McClure, 54 N. H., 339, 381 
 v. Rockingham Mutual Fire Ins. Co., 24 
 
 N. H., 550, 108, 867 
 
 Burger v. Farmers Mut. Ins. Co., 71 Penn. St., 
 
 433, 99 
 
 Burges v. Wickham, 3 B. & S.,669; 33 L. J. 
 
 Q. B., 17, 1255 
 
 Burgess®. Alliance Ins. Co., 10 Allen, 221, 
 
 286, 883 
 Burgher v. Columbian Ins. Co., 17 Barb., 274, 
 
 50, 112, 995 
 Burke ®. Brig M. P. Rich, 1 Cliff, 509, 701 
 Burnett v. Eufaula Home Ins. Co., 46 Ala., 11, 
 
 1387 
 
 D. Kensington, 7 Term., 310; 1 £sp., 416, 
 
 1325 
 Burns n. Collins, 64 Me., 215, 188 
 
 Burr n. Broadway Ins. Co., 16 N. T., 267, 
 
 510, 681 
 Burridge v. Row, 1 Tou. & Col. C. C, 183; 11 
 
 L. J. Ch., 369; 13 id., 173, 700 
 
 Burrill d. Chenango Mut. Ins. Co., Edm. S. C. 
 
 (N. T.), 233, 1483 
 
 Burritt v. Saratoga County Mutual Fire Ins. 
 
 Co., 5 Hill, 188, 83 
 
 Burroughs «. State Life Ass. Co., 97 Mass., 359, 
 
 61 
 Burrows v. Turner, 34 Wend., 376, 53 
 
 Burt D. Peoples' Mutual Fire Ins. Co., 3 Gray, 
 
 397, 8.54 
 
 Burton d. Gore District Mut. Ins. Co., 14 U. C. 
 
 Q. B., 343, 64, 861 
 n. Gore District Mutual Fire Ins. Co., 12 
 
 Grant Ch., 158, 160 
 
 Busch t. Insurance Co., 6 Phila., 253, 1110 
 Bnsh>. Westchester Fire Ins. Co., 3 N. T. S. 
 
 C, 629; 5 Ins. L. J., 207, 
 
 1069, 1084, 1138 
 
 Bushnan v. Morgan, 5 Sim., C35, 720 
 Busk V. Bell, 16 East, 3, 648 
 ®. Royal Exchange Ass. Co., 2 B. & A., 
 
 73, 1155, 1268 
 
 Busteed v. West of England Ins. Co., 5 Irish 
 
 Ch., 553, 929 
 
 Butler v. Allnutt, 1 Starkie, 222, 630 
 
 v. Fox, 7 C. B., 970, 224 
 
 v. Wildman, 3 B. & A., 398, 297, 1020 
 
 Butman o. Hobbs, 35 Me., 327, 149 
 
 Byrne b. Louisiana State Ins. Co., 19 Martin 
 
 (La.), 126, 430 
 
 V. Rising Sun Ins. Co., 20 Ind., 103, 
 
 1134 
 Byrnes v. Alexander, 1 Brev., 313, 243 
 
 D. National Ins. Co., 1 Cow., 265, 
 
 842,893 
 
 c. 
 
 Caballero d. Home Mut. Ins. Co., 15 La. An., 
 317, 548 
 
 Cabot v. Given, 45 Me., 144, 1070 
 
 Cahill- ffl. Andes Ins. Co., 5 Biss., 34, 
 
 909, 1234 
 Calbreath v. Gracy, 1 Wash. C. C, 319, 
 
 810, 1375 
 Caldwell c. Dawson, 5 Exch., 1 ; 14 Jur., 316, 
 
 1314 
 
 v. St. Louis Perpetual Ins. Co., 1 La. An., 
 
 85, 228, 1320 
 
 Calhoun v. Insurance Co. of Pennsylvania, 1 
 
 Binn., 293, 813 
 
 Callaghan o. Atlantic Ins. Co., 1 Edw. Ch., 64, 
 
 318 
 Callender b. Insurance Co. of North America, 
 
 5 Binn., 535, 539 
 Callow D. Kelson, 10 W. R., 193, 896 
 Calvert v. Bovill, 7 Term, 533, 1280 
 r>. Hamilton Mut. Ins. Co., 1 Allen, 308, 
 
 85,664 
 
 Camberling 11. McCall, 3 Teates, 381 ; 2 Dall., 
 
 380; 3. id., 477, 80 
 
 Cambridge v. Anderton, 3 B. & C, 691 ; 1 C. 
 
 6 P., 313; 4 D. & R., 203; R. & M., 
 60; 3L. J.K. B., 141, 1417 
 
 Camden v. Anderson, 5 Term, 709, 70 
 v. Anderson, 6 Term, 723 ; 1 B. & P., 373, 
 
 6-16 
 
 D. Cowley, 1 W. Bl., 417, 524 
 
 D. Eddie, 1 H. Bl., 31, 1463 
 
 Cameron e. Monarch Ass. Co., 7 U. C. C. P. 
 212, mi 
 
TABLE OF CASES. 
 
 XV 
 
 Cameron e. Times and Beacon Fire Ins. Co., 7 
 
 V. C. C. P., 234, 1144 
 
 Cammack «. Lewis, 15 Wall., 643, 47, 333 
 
 Campbell c. Aberdeen Fire and Life Ins. Co., 
 
 3 C. C. S. (N. S.), 1010, 969 
 
 ■ V. -Staia Ins. Co., Cochran, 31, 860 
 
 ■ c. Allan, Faculty Dec. 1796 to 1801, p. 
 
 853, 1895 
 0. American Popular Life Ins. Co., 1 Mc- 
 
 Axthur, 346, 1186 
 
 ' V. Charter Oak Fire and Marine Ins. Co., 
 
 7 Allen, 45, n., 663 
 o. Charter Oak Fire and Marine Ins. Co., 
 
 10 Allen, 313, 747, 1455 
 
 e. Christie, 3 Starkie, 57, 120 
 
 V. Hamilton Mut Ins. Co., 51 Me., 69, 
 
 670 
 
 V. Inness, 4 B. & A., 424, 645 
 
 «. International Life Ass. Soc, 4 Bos., 
 
 298, - 913 
 
 ■ V. Merchants and Farmers Mutual Fire 
 
 Ins. Co., 37 N. H., 35, 465 
 V. Monmouth Mutual Fire Ins. Co., 59 
 
 Me., 430, 883, 1158 
 e. New England Life Ins. Co., 98 Mass., 
 
 381, 37, 133, 533, 793, 1296 
 
 . «. Rickards, 5 B. & Ad., 840 ; 8 L. J. K. B.. 
 
 304, 534, 530 
 
 B. Williamson, 3 Bay., 337, 430, 783, 786 
 
 Cannell, v. Phoenix Ins. Co., 59 Me., 583, 
 
 528,838 
 Capen e. Washington Ins. Co., 13 Cush., 517, 
 
 1266 
 Cardwell o. Republic Ins. Co., 7 Chi. Leg. 
 
 News, 382, 980 
 
 Carpenter c. American Ins. Co^ 1 Story, 57, 
 
 790 
 V. Mutual Safety Ins. Co., 4 Sand. Ch., 
 
 408, 737 
 o. Providence Washington Ins. Co., 16 
 
 Pet, 495 ; 4 How., 185, 853, 1175 
 
 Carr e. Royal Exchange AlSS. Co., 5 B. & S., 
 
 433; 10 Jur. (N. S.), 316; 33 L. J. Q. 
 
 B., 63 ; 10 L. T. (N. S.), 365 ; 12 W. R., 
 
 127, 1511 
 e. Monteflore, 5 B. «& S., 408; 10 Jur. (N. 
 
 S.), 312, 1069; 33 L. J. Q. B., 57, 256; 
 
 13 W. R, 870, 126; 11 L. T. (N. S.), 
 
 157; 10 id., 294, 605 
 
 Carraway o. Merchants Mut. Ins. Co., 26 La. 
 
 An., 298, 774 
 
 Carrere e. Union Ins. Co., 3 H. & J., 324, 813 
 Carrington o. Commercial Fire and Marine 
 
 Ins. Co., 1 Bos., 152, 75 
 B. Merchants Ins. Co., 6 Pet,. 495. 637 
 
 Carroll e. Boston Marine Ins. Co., 8 Mass., 515, 
 
 707 
 
 V. Charter Oak Ins. Co., 38 Barb., 402 ; 40 
 
 id., 292; 1 Abb. Dec, 310, 
 
 180, 461, 865 
 V. New Orleans, J. & G. N. R R. Co., 26 
 
 La. An., 447, 1347 
 
 Carrugi «. Atlantic Fire Ins. Co., 40 Ga., 135, 
 
 876, 1077 
 Carruthers e. Gray, 15 East, 35; 3 Camp., 142, 
 
 119, 439, 1155 
 
 B. Shedden, 6 Taunt, IS; 1 Marsh., 416, 
 
 503, 695 
 
 B. Sydebotham, 4 Mau. & Sel., 77, 
 
 948, 1324 
 Carson b. Marine Ins. Co., 2 Wash. C. C, 468, 
 
 383 
 Carstairs b. AUnutt, 3 Camp., 497, 369 
 
 Carter b. Boehm, 3 Burr., 1905; 1 W. Bl., 593, 
 
 253 
 B. Humboldt Fire Ins. Co., 12 Iowa, 287, 
 
 181, 694, 974 
 B. Humboldt Fire Ins. Co., 17 Iowa, 456. 
 
 1521 
 
 T. Rockett, 8 Paige Ch., 487, 802 
 
 B. United Ins. Co., 1 Johns. Ch., 463, 740 
 
 Carver Company b. Manufacturers Ins. Co., 6 
 
 Gray, 214, 331, 1186 
 
 Cary b. Nagel, 2 Biss., 244, 1054 
 
 Case B. Davidson, 5 Mau. & Sel., 79 ; 3 B. «& B., 
 
 379, 603 
 
 B. Hartford Fire Ins. Co., 13 111., 676, 
 
 481, 1193 
 Casey b. Goldsmid, 4 L. C, 107, 87 
 
 Cashan b. Northwestern National Ins. Co., 5 
 
 Blss., 476, 834, 1185 
 
 Casler b. Connecticut Mutual Life Ins. Co., 23 
 
 N. Y., 437, 1366 
 
 Cassacia e. Phoenix Ins. Co., 38 Cal., 628, 975 
 Cassedy b. Louisiana State Ins. Co., 18 Martin 
 
 (La.), 421, 3 
 
 Castelli b. Buddington, 1 El. & Bl., 66 ; id.. 879, 
 
 71, 82, 1291 
 Caston B. Monmouth Mut Fire Ins. Co., 54 
 
 Me., 170, 465, 832, 973 
 
 Catlett B. Pacific Ins. Co., 1 Paine, 594, 
 
 744, 1436, 1515 
 
 B. Pacific Ins. Co., 1 Wend., 561 ; 4 id., 75, 
 
 64, 407, 782, 808, 1112 
 Catlin B. Springfield Fire and Marine Ins. Co., 
 
 1 Sumn., 434, 949, 1157, 1520 
 
 Catoir b. American Life Insurance and Trust 
 
 Co., 33 N. J., 487, 935 
 
 Cator B. Great Western Ins. Co., 8 L. R. C. P., 
 
 552; 43 L. J. C. P., 266; 29 L. T. (N. 
 
 8.), 186, 1496 
 
XVI 
 
 TABLE OF CASES. 
 
 Catron v. Tennessee Ins. Co., 6 Humph., 176, 
 
 336, 553 
 
 Catterall v. Taylor, 9 L. J. C. P., 205, 415 
 
 Cazalett v. St. Barbe, 1 Term, 187, 379 
 
 Gaze v. Baltimore Ins. Co., 7 Cranch, 358, 574 
 
 Cazenove v. British Equitable Ass. Co., 6 C. 
 
 B. (N. S.), 437; 5 Jur. (N. S.), 1309; 
 
 28 L. J. C. P., 359; 39 id. 160; 6 Jur. 
 
 (N. S.), 826 ; 8 W. R., 343, 1398 
 
 Center v. American Ins. Co., 7 Cow., 564; 4 
 
 Wend., 46, 6, 80, 586, 603, 780, 1438 
 
 Cerf V. Home Ins. Co., 44 Cal., 330, 
 
 454, 749 
 
 Chaffee n. Cattaraugus Mut. Ins. Co., 18 N. T., 
 
 376, 84 
 
 Chalmers v. Bell, 3 B. & P., 604, 646 
 
 Chamberlain v. New Hampshire Fire Ins. Co., 
 
 55 N. H., 349, 61, 829 
 
 Chamberlin v. McCall, 2 Teates, 281 ; 2 Dall., 
 
 380; 3 id., 477, 80 
 
 Champlin v. Railway Passenger Ass. Co., 6 
 
 Lans., 71, 43, 1148 
 
 Chandler v. Worcester Mutual Fire Ins. Co., 3 
 
 Cush., 338, 568 
 
 Chapin u. Fellowes, 36 Conn., 132, 1520 
 
 Chapman v. Frazer, Park on Ins., 318 ; Marsh. 
 
 on Ins., 653, 1331 
 
 Chapman v. Pole, 22 L. T. (N. S.), 306, 553 
 
 v. Republic Life Ins. Co., 7 Chi. Leg. 
 
 News, 186, 1362 
 
 Charleston Ins. Co. v. Potter, 3 Dessaus. Eq., 6, 
 
 741 
 
 Charleston Insurance and Trust Co. n. Comer, 
 
 3 Gill, 410, 378, 590, 599 
 
 V. Neve, 3 McMullen, 337, 113, 158, 1146 
 
 Charter Oak Life Ins. Co. v. Brant, 47 Mo.,.419, 
 
 1533 
 Chase «. Eagle Ins. Co., 5 Pick., 51, 376, 437 
 
 V. Hamilton Ins. Co., 30 N. T., 52; 22 
 
 Barb., 537, 336 
 
 V. Washington Mut. Ins. Co., 12 Barb., 
 
 595, 690, 738, 1198 
 
 Chattock V. Shawe, 1 M. & Rob., 498, 1305 
 Chaurand v. Angerstein, Peakes. N. P. C, 61, 
 
 534 
 Cheriot v. Barker, 2 Johns., 347. 576 
 
 Chesapeake Ins. Co. v. Allegre, 2 G. & J., 164, 
 
 360 
 
 V. Stark, 6 Cranch, 268, 1, 34, 1311 
 
 Chickering v. Globe Mutual Life Ins. Co., 116 
 
 Mass., 331, 915 
 
 Child V. Sun Mut. Ins. Co., 3 Sandf., 76, 1421 
 
 ■». Sun Mut., Ins. Co., 3 Sandf, 26, 
 
 441, 523, 1120, 1418, 1449 
 
 Chisholm v. National Capitol Life Ins. Co., 
 
 52 Mo., 213, 686 
 
 Chitty V. Selwin, 2 Atk., 359, 735 
 
 Chope v. Reynolds, 5 C. B. (N. S.), 643; 5 Jur. 
 
 (N. S.;, 833; 28 L. J. C. P., 194; 7 W. 
 
 R., 308, 1008 
 
 Chowne V. Baylis, 31 Beav., 351, 173 
 
 Christie s. North British Ins. Co., 3 C. C. S., 
 
 360, 353 
 
 Christian n. Coombe, 2 Esp., 489, 88 
 
 Christie n. Secretan, 8 Term, 193, 810, 1373 
 
 Church -D. Teasdale, 1 Brev., 255, 541 
 
 V. Hubbart, 2 Cranch, 165, 488, 635, 753 
 
 V. Marine Ins. Co., 1 Mason, 341, 1420 
 
 Cincinnati, Hamilton and Dayton R. R. Co. u. 
 
 Spratt, 2 Duvall, 4, 1346 
 
 Cincinnati Ins. Co. «. Bakewell, 4 B. Mon., 541, 
 
 7,29 
 
 V. Dnffleld, 6 Ohio St. 300, 31 
 
 V. May, 20 Ohio, 311, 528, 1059, 1353 
 
 V. Rieman, 1 Disney, 396, 1394 
 
 Cincinnati Mut. Ass. Co.,t. Rosenthal, 55 111., 
 85, 1317 
 
 Cinquellars s. Equitable Ins. Co., 15 U. C. Q. 
 B., 143, 346, 1144 
 
 City Bank v. Adams, 45 Me., 455, 187 
 
 City Fire Ins. Co. v. Carrugi, 41 Ga., 660, 
 
 481, 965, 1061, 1333 
 City Fire Ins. Co v. Corlies, 21 Wend., 367, 
 
 545, 728 750, 1014 
 
 D. Mark, 45 HI., 483, 39 
 
 Citizens Ins. Co. v. Glasgow, 9 Mo., 406, 
 
 4, 380, 546 
 
 v. Marsh, 41 Penn. St, 386, 302, 1147 
 
 B. McLaughlin, 53 Penn. St., 485, 
 
 1214, 1450 
 
 «. Doll, 35 Md., 89, 162, 709, 1119 
 
 Citizens Mutual Fire Ins. Co. ■». Sortwell, 8 
 
 Allen, 217, 10^0 
 
 Clamageran u. Banks, 18 Martin (La.), 551, 35 
 
 Clapham b. Cologan, 3 Camp., 382, 123, 1519 
 
 v. Langton, 5 B. & S., 739 ; 3 P. & P., 626 ; 
 
 34 L. J. Q. B., 46 ; 13 W. R., 1011 ; 10 
 L. T. (N. S.;, 875, H55 
 
 Clapp v. Union Mut. Ins. Co., 37 N. H., 148, 
 
 349 
 Clark v. Blything, 2 B. & C, 354; 3 D. & R 
 489; 3 L. J. KB., 7, 1330 
 
 7). Durand, 12 Wis., 323, 1347 
 
 v. Hamilton Mut Ins. Co., 9 Gray, 148, 
 
 148,846 
 ®. Manufacturers Ins. Co., 8 How., 235; 2 
 
 W. &M.,472, 106f,12S7 
 D. Massachusetts Fire and Marine Ins. 
 
 Co., 2 Pick., 104, 579 
 
 B. Middleton, 19 Mo., 53, 1057, 1319 
 
 n. New England Mutual Fire Ins. Co., 6 
 
 Gush., 343, 837, 866, 1^ 
 
TABLE OF CASES. 
 
 xvii 
 
 Clark t. Ocean lus. Co., 16 Pick., 289, 
 
 587, 1470 
 
 V. Phoenix Ins. Co., 86 Cal., 168, 
 
 117, 125. 558 
 
 e. Protection Ins. Co., 1 Story, 109, 711 
 
 V. Union Mutual Fire Ins. Co., 40 N. H., 
 
 833, 86, 465 
 
 c. Washington Ins. Co., 100 Mass., 509, 
 
 193 
 
 V. Western Ass. Co., 25 U. C. Q. B., 209, 
 
 716, 977 
 
 «. Wilson, 103 Mass., 219, 1342 
 
 Clarke o. Firemen's Ins. Co., 18 La. (O. S.), 431, 
 
 717, 1001 
 Clarkson «. Phoenix Ins. Co., 9 Johns., 1, 1437 
 
 V. Young, 23 L. T. OH. S.), 41, 260 
 
 Clary v. Protection Ins. Co., 1 Wright, 228, 
 
 1011 
 
 Clason e. Smith, 3 Wash. C. C, 156, 1198 
 
 aay c. Harrison, 10 B. & C, 99; 5 M. & R, 
 
 17; 8L. J. K. B.,90, 710 
 
 Clay Fire and Marine Ins. Co. o. Beck, 5 Ins. 
 
 L. J., 289, 673 
 
 c. Huron Salt and Lumber Co., 31 Mich., 
 
 346, 70, 117, 1319, 1375 
 
 V. Wusterhausen, 7 Chi. Leg. News, 358, 
 
 965 
 
 Clayton o. Owen, 31 Beav., 285; 8 Jur. (N. S.), 
 
 1117; 31 L. J. Ch.,825; IOW.R.,770; 
 
 6 L. T. (N. S.), 862, 1461 
 
 Clement c. Phoenix Ins. Co., 6 Blatch., 481, 
 
 264, 777 
 Clendenning v. Church, 3 Caines, 141, 1460 
 Cleveland «. Clap, 5 Mass., 201, 1339 
 
 e. Fettyplace, 3 Mass., 391, 981 
 
 e. Union Ins. Co., 8 Mass., 808, 1150 
 
 CliflFordo. Hunter, Moo. & M., 103; 3 C. & P., 
 16, 1263 
 
 c. Thomaston Mut Ins. Co., 50 Me., 197, 
 
 1062 
 
 aift V. Schwabe, 3 C. B., 437; 2 C. & K., 134; 
 
 17 L. J. C. P., 3, 1860 
 
 Clinton e. Hope Ins. Co., 45 N. Y., 454; 51 
 
 Barb., 647, 103, 307, 1337 
 
 Clippinger c. Missouri Valley Life Ins. Co., 8 
 
 Chi. Leg. News, 155, 1190 
 
 Cluflf o. Mutual Benefit Life Ins. Co., 13 Allen, 
 
 308, 393 
 
 V. Mutual Benefit Life Ins. Co., 99 Mass., 
 
 817, 893 
 
 Cobb V. Insurance Co. of North America, 11 
 
 Kan., 93, 82, 875 
 
 V. Lime Rock Fire and Marine Ins. Co., 
 
 58 Me., 826, 1101, 1452 
 
 «. New England Mutual Marine Ins. Co., 
 
 6 Gray, 192, 67,135,982,1251 
 
 B 
 
 Cochrane v. Gilkison, 16 C. C. S., 548, 1251 
 
 •Cockerill o. Cincinnati Slut. Ins. Co., 16 Ohio, 
 
 148, 888 
 
 Cockey v. Atkinson, 2 B. & A., 460, 185 
 
 Cocking 0. Fraser, 4 Boug., 295, 1503 
 
 CoeyB. Smith, 22 C. C. S., 955; 33 Scot. Jur., 
 
 403, 1036 
 
 Coflfey t>. Home Life Ins. Co., 3 J. & Sp., 314; 
 
 44 How. Pr., 481, 1360 
 
 Coggeshall v. American Ins. Co., 3 Wend., 283, 
 
 293 
 
 Cohen ■». Charleston Ins. Co., Dud. Ap. (S. C), 
 
 147, 35 
 
 V. Hannam, 5 Taunt., 101, 114 
 
 V. Hinkley, 2 Camp., 51 ; 1 Taunt, 249, 
 
 1064 
 
 «. New York Mutual Life Ins. Co., 50 N. 
 
 Y., 610, 58, 905 
 
 Coit e. Commercial Ins. Co., 7 Johns., 385, 
 
 1494 
 
 f). Smith, 3 Johns. C, 16, 1013 
 
 Colby «. Hunter, 1 Moo. & M., 81 ; 3 C. & P., 
 7, 680 
 
 Cole 9. Commercial Ins. Co., 13 Gray, 519, 
 
 193 
 
 V. Louisiana Ins. Co., 14 Martin (La.), 165, 
 
 Sal, 1473 
 
 V. Union Mut. Ins. Co., 13 Gray, 501, 193 
 
 0. Union Mut. Ins. Co., note to, 13 Gray, 
 
 519, 193 
 
 Coles V. Iowa State Mut. Ins. Co., 18 Iowa, 
 425, 1217 
 
 Coles ». Marine Ins. Co., 3 Wash. C. C, 159, 
 
 1024 
 
 CoUedge o. Harfy, 6 Exchr, 205; 20 L. J. Ex., 
 
 146. 810 
 
 Collett V. Morrison, 21 L. J. Ch., 878; 9 Hare, 
 
 162, 1331 
 
 Collins V. Charlestown Mutual Fire Ins. Co., 
 
 10 Gray, 155, 360, 1203 
 
 s. Insurance Co., 7 Phila., 201, 844 
 
 o. New York Central R. R. Co., 5 Hun., 
 
 (N. Y.), 503, 1338 
 
 V Steamer Fort Wayne, 1 Bond, 476, 759 
 
 Cologan V. London Ass. Co., 5 Man. & Sel., 
 
 447, 1408 
 
 Colquhoun v. New York Firemen Ins. Co., 15 
 
 Johns., 353, 643 
 
 Colt e. Phoenix Fire Ins. Co., 54 N. Y., 595, 
 
 101 
 
 Columbia Ins. Co. s. Cooper. 50 Penn. St, 331, 
 
 249, 464, 797, 1079 
 
 V, Masonheimer, 76 Penn. St., 138, 1217 
 
 V. Stone, 3 Allen, 885, 1221 
 
 Columbian Book Co. v. De Gtolyer, 115 Mass., 
 67, 188 
 
xvm 
 
 TABLE OF CASES. 
 
 Columbian Ins. Co. v. Ashby, 4 Pet., 139, 26 
 
 V. Bean, 113 Mass., 541, 1385 
 
 V. Caflett, 12 Wheat, 383, 
 
 116, 290, 489, 576, 1405 
 
 V. Lawrence, 3 Pet., 25, 375, 688, 1110 
 
 V. Lawrence, 10 Pet, 507, 
 
 235, 375, 1133, 1147, 1334 
 Columbus Ins. Co. n. Walsh, 18 Mo., 229, 
 
 1319, 1392 
 Comber v. Anderson, 1 Camp., 523, 1094 
 
 Combs V. Hanuibal Ins. Co., 43 Mo., 148. 466 
 Comegys v. Vasse, 1 Pet, 193, 177 
 
 Commercial Ins. Co. v. Hallock, 27 N. J., 645, 
 
 321 
 
 «. Hnchberger, 52 111., 464, 821, 1140 
 
 o. Ives, 56 111., 402, 506,1080 
 
 V. Mehlman, 48 111., 313, 224, 652, 748, 951 
 
 V. Eobinson, 64 III., 265, 545, 1145 
 
 B. Spankneble, 53 111., 58, 
 
 39, 110, 829, 1387 
 
 v. Treasury Bank, 81 111., 253, 961 
 
 Commercial Mut Ins. Co. ■». McLoon, 14 Al- 
 len, 351, 950 
 Commercial Mutual Marine Ins. Co. v. Union 
 Mut Ins. Co., 19 How., 318; 2 Curtis, 
 534, 314, 881, 1006, 1823 
 Commercial Union Ins. Co. v. Lister, 9 L. K 
 Ch., 483 ; 48 L. J. Ch., 601, 72 
 Commonwealth v. Hide and Leather Ins. Co., 
 113 Mass., 136, 
 
 53, 387, 650, 993, 1213, 1491 
 
 V. Massachusetts Mut Ins. Co., 112 Mass., 
 
 116, 153, 805 
 
 V. Mechanics Mut Ins. Co., 112 Mass., 192, 
 
 158, 154 
 
 V. Monitor Mut Fire Ins. Co., 112 Mass., 
 
 150, 804 
 
 V. National Ins. Co., 113 Mass., 514, 
 
 1281 
 
 v. Shoe and Leather Dealers Ins. Co., 112 
 
 Mass., 131, 1284 
 
 V. Unity Mutual Life Ass. Co., 117 Mass., 
 
 837, 55 
 
 Commonwealth Ins. Co. v. Berger, 42 Penn. 
 
 St, 285, 754 
 
 V. Chase, 20 Pick., 142, 34 
 
 V. Cropper, 21 Md., 311, 279, 444 
 
 V. Globe Ins. Co., 35 Penn. St, 475 1182 
 
 e. Monninger, 18 Ind., 353, 
 
 311, 521, 797 
 
 ■». Bennett, 87 Penn. St., 205, 384 
 
 «. Sennett, 41 Penn. St., 161, 838, 1141 
 
 Concord Union Mntual Fire Ins. Co. n Wood- 
 bury, 45 Me., 447, 803. 1343 
 Cone fl. Niagara Ins. Co., 3 N. T. S. C, 38; 60 
 N. T., 619. 59, 716. 837, 1337 
 
 Connecticut Mutual Life Ins. Co. e. Burroughs, 
 
 34 Conn., 305, 166 
 n. New York and New Hayen R. R. Co., 
 
 25 Conn., 265, 1342 
 
 D. Siegel, 9 Bush., 450, 964, 1140 
 
 Connell v. Massie, 2 L. J. (N. S.) K. B., 160, 
 
 1431 
 Conover v. Mntual Ins. Co., 1 N. T., 290; 3 
 
 Denio, 254; How. App. Cas., 604, 
 
 65, 103, 1067 
 Consolidated Fire Ins. Co. v. Cashow, 41 Md., 
 
 59, 62, 901, 1185, 1210 
 
 Constable a. Noble, 2 Taunt., 4(», 987 
 
 Constant v. Insurance Co., 3 Wall. Jr., 313, 
 
 1083 
 Continental Ins. Co. v. Lippold, 3 Neb., 391, 
 
 1125 
 
 ». Mansfield, 45 Miss., 311, 959, 1283 
 
 V. Kasey, 25 Grattan, 268, 477, 801 
 
 v. Horton, 28 Mich., 173, 481, 875 
 
 Continental Life Ins. Co. v. Palmer, 5 Ins. L. 
 
 J., 305, 1532 
 
 ■». Willets, 24 Mich., 268, 1090 
 
 Converse o. Citizens Mut Ins. Co., 10 Cush., 
 
 37, 691 
 
 Conway v. Gray, 10 East, 536, 1031 
 
 Conway Fire Ins. Co. «. SewaU, 54 Me^ 352, 
 
 950 
 Conway Tool Co. v. Hudson River Ins. Co., 13 
 
 Cush., 144, _ 401,854 
 
 Cook 9. Black, 1 Hare, 390; 11 L. J. Ch., 368, 
 
 172 
 
 0. Commercial Ins. Co., 11 Johns., 40 195 
 
 «. Greenock Mut Ins. Co., 5 C. C. S. 246 ; 
 
 15 Scot Jut., 611, 1268 
 V. Scottish Equitable Life Ass. Soc^ 26 
 
 L. T. (N. S.), 571, 723 
 Coolidge ». Blake, 15 Mass., 429, 270 
 V. Gloucester Mutual Ins. Co., 15 Mass., 
 
 341, 587 
 
 V. Gray, 8 Mass., 527, 442 
 
 V. New York Firemen Ins. Co., 14 Johns., 
 
 308, 218, 811, 814 
 
 Coon V. Swan., 30 Vt, 6, 519, 1328 
 
 Cooper ». Farmers Ins. Co., 50 Penn. St., 290, 
 
 669, 1177 
 V. Massachusetts Life Ins. Co., 102 Mass^ 
 
 227, 1359 
 
 V. Pacific Mut Ins. Co., 7 Nev., 116, 
 
 330,1226 
 Copeland e. Mercantile Ins. Co., 6 Pick., 198, 
 
 104,561 
 V. New England Marine Ins. Co^ 2 Met., 
 
 432, 1266 
 
 Copelin V. Insurance Co., 9 WalL, 461 ; 1 Wool. 
 
 C.C.,278; 46Ma,211. 32 
 
TABLE OF CASES. 
 
 XIX 
 
 Corcoran v. Gurney, 1 El. & Bl., 456, ISSS 
 
 c. Gurney, 23 L. J. Q. B., 113 ; 1 El. & Bl , 
 
 456; 17 Jur., 1153, 1335 
 
 Cormack «. Gladstone, 11 East, 347, 446 
 
 Cornell e. Le Roy, 9 Wend., 163, 
 
 833, 949, 1133 
 
 «. Hope Ins. Co., 15 Martin (La.), 333, 
 
 373 
 
 c. Milwaukee Mutual Fire Ins. Co., 18 
 
 Wis., 387, 837 
 
 Corp o. United Ins. Co., 8 Johns., 278, 1035 
 Cort 0. Delaware Ins. Co., 2 Wash. C. C, 375, 
 
 483, 1420 
 Cory «. Boylston Ins. Co., 107 Mass., 140, 
 
 386, 849, 1059, 1496 
 
 tvPatton, 7 L.R Q. B, 304; 20 W. R, 364; 
 
 26 L. T. (N. S.>, 161; 41 L. J. Q. B., 
 195n; 9 L. R. Q. B.,577; 23W.R,46; 
 30 L. T. (N. S.), 758; 43 L. J. Q. B. 
 181, 254 
 
 Cotton States Life Ins. Co. e. Scurry, 50 Ga., 
 48, 347 
 
 Coster o. Phoenix Ins. Co., 2 Wash. C. C, 51, 
 
 1208 
 
 Coston 0. Alleghaey County Mut Ins. Co., 1 
 
 Penn. St., 323 
 
 Conch V. City Fire Ins. Co., 38 Conn., 181, 856 
 
 Coulon e. Bowne, 1 Caines, 288, 299 
 
 Oiuntv Life Ass. Co., In re, 5 L. R. Ch., 288; 
 
 39 L. J. Ch., 471 ; 23 L. T. (N. S.),537; 
 
 18 W. R, 390, 390 
 
 CouTsin c. Pennsylvania Ins. Co., 46 Penn. St, 
 
 323, 769,1380 
 
 Court o. Martineau, 3 Doug., 161, 354 
 
 Courteen c. Touse, 1 Camp., 43, 543 
 
 Conrtenay o. Wright, 3 GifF., 337; 6 Jur. (N. 
 
 S.), 1383; 9 W. R, 153, 1333 
 
 Courtnay e. Mississippi Marine and Fire Ins. 
 
 Co., 13 La. (O. S.), 233, 1041 
 
 Courtney c. New York City Ins. Co., 38 Barh., 
 
 116, 180 
 
 Cousins o. Nantes, 3 Taunt, 518, 236,960 
 
 Covington e. Roberts, 5 B. & P., 378, 613 
 
 Cowie c. Barber, 4 Camp., 100, 645 
 
 o. Barber, 4 Mau. & Sel., 16, 1234 
 
 Cox t). ^tna Ins. Co., 39 Ind., 586, 
 
 309,1466,1536 
 
 c. Charleston Ins. Co., 8 Rich^ 331, 
 
 947,1467 
 
 e. Parry, 1 Term, 464, 899, 1463 
 
 Crafts r. Union Mutual Fire Ins. Co., 36 N. 
 H., 44, 819 
 
 V. ilurgatroyd, 4 Teates, 161, 1478 
 
 e. Spence, Faculty Dec. 1792 to 1796, p. 
 
 207, . 1327 
 r. United Ins. Co., 6 Johns., 226, 4, 1025 
 
 Craig V. United States Ins. Co., Pet C. C, 410, 
 
 640 
 Crane «. Evansville Ins. Co., 13 Ind., 446, 957 
 Cranston v. Philadelphia Ins. Co., 5 Blnn., 538, 
 
 1389 
 Craufurd o. Hunter, 8 Term, 13, 953 
 
 Crawford e. St Lawrence County Ins. Co., 8 
 
 U. C. Q. B., 135, 15, 715 
 
 Cray o. Hartford Fire Ins. Co., 1 Blatch., 280, 
 
 771 
 Crichton o. Martin, 11 Scot Jur., 608, 200 
 
 Crocker v. People's Mutual Fire Ins. Co., 8 
 
 Cush., 79, 535 
 
 Crofts s. Marshall, 7 C. & P., 597, 529 
 
 Croghan «. Underwriters Agency, 58 Ga., 109, 
 127, 351, 889, 1195 
 Crockatt v. Ford, 25 L. J. Ch., 552, 779 
 
 Crombie v. Portsmouth Fire Ins. Co., 26 N. 
 
 H., 389, 1007 
 
 Cromie v. Kentucky and Louisville Mut Ins. 
 
 Co., 15 B. Mon.„ 432, 676 
 
 Cromwell v. Brooklyn Fire Ins. Co., 44 N. T., 
 
 42; 39 Barb., 227, 164 
 
 0. Charleston Trust Ins., Co., 2 Rich., 512. 
 
 744 
 Crosby v. Franklin Ins. Co., 5 Gray, 504, 
 
 1007 
 Cross c. Shutliffe, 2 Bay, 220, 444 
 
 Croudson «. Leonard, 4 Cranch, 434, 1271 
 
 Crousillat o. Ball, 3 Teates, 375; 4 Dall., 294, 
 3,111,300.409,786 
 Crowly V. Cohen, 8 B. & Ad., 478; 1 L. J. (N. 
 
 S.) K. B., 158. 92, 696 
 
 Crowningshield t>. New York Ins. Co., 3 
 
 Johns. C, 142, 440 
 
 Cruder o. Philadelphia Ins. Co., 3 Wash. C. 
 
 C, 263, 339, 406 
 
 Cruikshank «. Brouwer, 11 Barb., 228, 1388 
 
 «. Janson, 3 Taunt, 301, 293 
 
 CucuUu V. Louisiana State Ins. Co., 17 Mar- 
 tin (La.), 464. 642, 649, 1278 
 
 0. Orleans Ins. Co., 18 Martin (La,), 11, 
 
 1484 
 
 Cudworth c. South Carolina Ins. Co., 4 Rich., 
 
 416, 541.787,1268 
 
 Cullen V. Butler, 1 Starkie, 110; 5 Mau. & Sel., 
 
 461 ; 4 Camp., 289, 113, 115,1032 
 
 Cumberland Bone Co. v. Andes Ins. Co., 64 
 
 Me., 466, 693 
 
 Cumberland Valley Mutual Protection Ins. 
 
 Co., V. Douglas, 58 Penn. St, 419, 
 
 829 
 
 c. Mitchell, 48 Penn. St, 374, 
 
 132,249,363,678,676 
 
 «. Schell, 29 Penn. St, 81, 
 
 463,1047,1124,1473,1521 
 
XX 
 
 TABLE OF CASES. 
 
 Cummings v. Cheshire County Mat. Ins. Co., 
 
 55 N. H., 457, 362 
 
 e. Hildreth, 117 Mass., 309, 805 
 
 V. Sawyer, 117 Mass., 30, 805 
 
 Cummins v. Agricultural Ins. Co., 5 Hun. (N. 
 
 T.), 554, 824 
 
 Cunard «. Hyde, El. Bl. & EL, 670; 27 L. J. 
 
 Q. B., 408; 5 Jur. (N. S.), 40; 2 El. & 
 
 EI., 1; 29 L. J. Q. B., 6; 6 Jur, (N. 
 
 S.), 14, 646 
 
 Cunningham v. Craigie, Bell's Ses. Cas., 243, 
 
 268 
 Curcier c. Philadelphia Ins. Co., 5 S. & B., 
 
 113, 27, 377 
 
 Cnrtin v. Jellicoe, 13 Irish Ch., 180, 896 
 
 Curell o. Mississippi Marine and Fire Ins. 
 
 Co., 3 La. (O. S.), 353; 9 id., 164, 
 
 1240 
 Currie v. Bombay Native Ins. Co., 3 L. R. P. 
 
 C, 72; 6 Moore P. C. C. (N. 8.), 802; 
 
 39 L. J. P. C, 1 ; 22 L. T. (N . S.), 317 ; 
 
 18 W. R., 296, 600 
 
 Currier v. Continental Life Ins. Co., 53 N. H., 
 
 538, 917 
 
 Cony v. Commonwealth Ins. Co., 10 Pick., 
 
 535, 375,376,385, 1379 
 
 Curtis V. Home Ins. Co., 1 Biss., 485, 
 
 689,769,800 
 Cashing o. Thompson, 34 Me., 496, 1343 
 
 Cushman v. Korthwestern Ins. Co., 34 Me., 
 
 487, 1465,1471 
 V. United States Life Ins. Co, 4 Hun. (N. 
 
 T.), 783, 181,479, 517, 793, 830 
 
 D. 
 
 Dabhert e. Travelers Ins. Co., 3 Cin. Sup. Ct, 
 
 98, 515 
 
 Dabney e. New England Mutual Marine Ins. 
 
 Co., 14 Allen, 300, 611 
 
 Da Costa v. Firth, 4 Burr., 1966, 1333 
 
 ». Newnham, 2 Term, 407, 609, 844, 1035 
 
 V. Scandret, 2 P. Wms., 170, 1231 
 
 Dadmon Manfacturing Co. v. Worcester Mat. 
 
 Ins. Co:, 11 Met., 429, 96 
 
 Dafoe V. Johnstown District Mat. Ins. Co., 7 
 
 U. C. C. P., 55, 860 
 
 D'Agnilar v. Tobin, Holt N. P., 185, 371, 430 
 
 «. Tobin, 2 Marsh., 265, 817 
 
 Dalby v. India and London Life Ass. Co., 15 
 
 C. B., 365; 4 Deg. & S., 462; 24 L. J. 
 
 C. P., 3, 687 
 Dalgleish t>. Brooke, 15 East, 295, 1049, 1230 
 v. Buchanan, 16 C. C. 8., 332; 26 Scot. 
 
 Jnr., 160, 728 
 
 Dalgleish v. Hodgson, 7 Bing., 496; 5 M. & P, 
 
 407; 9 L. J. C. P., 138, 1281 
 
 Dallam v. Insurance Co., 6 Phila., 15, 
 
 410, 1243, 12.58 
 Ddlrymple v. Johnston, Faculty Dec. 1775 to 
 
 1777, p. 477, 617 
 
 Dalzell V. Mair, 1 Camp., 533, 903 
 
 Daniel v. Bubinson, Batt^, 650, 969 
 
 Daniels u. Atlantic Mat. Ins. Co., 34 N. Y., 
 
 447; 8 Bos., 266, 570 
 
 ^ V. Harris, 10 L. R C. P., 1, 1268 
 
 T. Hudson River Fire Ins. Co., 12 Cosh., 
 
 416, 131, 377, 523, 498, 1199 
 
 V. Meinhard, 58 Ga., 859, 188 
 
 Darby ©.Newton, 6 Taunt, 544; 2 Marsh., 253, 
 
 794 
 Darrah v. Bayard, 3 Teates, 152, 1285 
 
 Date o. Gore District Mutual Fire Ins. Co^ 
 
 14 U. C. C. P., 502, 1484 
 «. Gore District Mutual Fire Ins. Co., 14 
 
 U. C. C. P., 549. 1485 
 V. Gore District Mutual Fire Ins. Co^ 15 
 
 U. C. C. P., 175, 654 
 
 Davega v. Crescent Mat. Ins. Co., 7 La. An., 
 
 228, 1177 
 
 Davenport v. New England Matnal Fire Ins. 
 
 Co., 6 Cush., 340, 666 
 
 Davenport, City of, v. Peoria Marine and Fire 
 
 Ins. Co., 17 Iowa, 276, 828 
 
 Davern v. Merchants Ins. Co., 7 La. An., 344, 
 
 1456 
 David e. Hartford Fire Ins. Co., 13 Iowa, 69, 
 
 860 
 Davidson v. Burnand, 4 L. R. C. P., 117; 38 L. 
 
 J. C. P., 73; 19 L. T. (N. S.), 782; 17 
 
 W. R., 121, 1023, 1356 
 
 V. Case, 2 B. & B., 379 ; 5 Man. & Sel., 79, 
 
 603 
 
 e. Willasey, 1 Mau. & Sel., 313, 592 
 
 Davies ». Wilkinson, 6 L. J. C. P., 121, 1286 
 Davis V. Boardman. 12 Mass., 80, 53, 300 
 
 a. Davis, 49 Me., 282, 80 
 
 V. Home Ins. Co., 24 U. C. Q. B., 364, 
 
 710 
 V. Qaincy Mutual Fire Ins. Co., 10 Allen, 
 
 113, 105 
 0. Western Massachusetts Ins. Co., 8 R. I., 
 
 277, 378 
 
 Davy V. Hallett, 3 Caines, 16, 30, 586, 1468 
 
 V. Milford, 15 East, 559, 13 
 
 Dawes p. North River Ins. Co., 7 Cow., 462, 
 
 1126 
 Dawson a. Atty, 7 East, 367, 633 
 
 1>. On, 24 C. C. S., 566 ; 34 Scot Jnr., 289. 
 
 898 
 11. Wrench, 3 Exch., 359; 18 L. J. Ex, 
 
 320, 900, 979 
 
TABLE OF CASES. 
 
 XXI 
 
 Day e. Charter Oak Fire and Marine Ins. Co., 
 51 Me., 91, 14S6 
 
 f . Couway Ins. Co., 52 Me., 60 85 
 
 V. Mutual Benefit Life Ins. Co., 1 Mac- 
 
 Artliur, 41, 794 
 
 e. Mutual Benefit Life Ins. Co., 1 Mac- 
 
 -Vithur, 598, 981, 1139 
 
 c. Orient Mutual Ins. Co., 1 Daly, 13, 
 
 1100 
 
 Dayton Ins. Co. o. Kelly, 24 Ohio St, 345, 
 
 872, 885, 918, 950, 978, 1072, 1187,1492 
 
 Dean c. .S;tna Life Ins. Co., 3 Hun. (N. T.) 
 
 358 ; 4 N. Y. S. C, 497, 511, 516, 912, 
 
 1107 
 
 V. American Mutual Life Ins. Co., 4 
 
 Allen, 96, 1359 
 
 o. Dicker, 3 Strange, 1250, 1414 
 
 c. Hornby, 3 El. & Bl., 180; 23 L. J. Q. 
 
 B., 129; 18 Jur.,G35, 17,221 
 
 Deblois «. Ocean Ins. Co., 16 Pick., 303, 433, 
 
 1251 
 DeBoUfe c. Pennsylvania Ins. Co., 4 Wliart., 68, 
 
 68,849 
 
 DcCosta V. Edmunds, 2 Chitty, 237 ; 4 Camp., 
 
 142, 260, 396 
 
 «. Scandret, 3 P. Wms., 170, 246 
 
 Decrow v. "Waldo Mutual Ins. Co., 43 Me., 
 
 460, 1273 
 
 DeCuadra o. Swann, 16 C. B. (JT. S.), 772, 
 
 595 
 Dederer o. Delaware Ins. Co., 2 Wash. C. C, 
 
 61, 201 
 
 Defflis c. Parry, 3 B. & P., 3, 630 
 
 DeForest r. Fulton Fire Ins. Co., 1 Hall, 84, 
 
 387, 1449 
 De Gaminde e. Pigou, 4 Taunt, 246, 903 
 
 D'Eguino v. Bewicke, 2 H. Bl., 551, 369 
 
 De Groot v. Fulton Fire Ins. Co., 4 Rob. (N. 
 
 T.), 504, 1069 
 
 De nahn o. Hartley, 1 Term, 343; 2 id., 186, 
 
 1392 1527, 1573 
 Deidericks o. Commercial Ins. Co., 10 Johns., 
 
 234, 1511 
 Deitz V. Mound City Mutual Fire & Life Ins. 
 
 Co., 88 Mo., 85. 859 
 
 Delahy p. Memphis Ins. Co., 8 Humph., 684, 
 ^ 249 
 
 Delaney c. Stoddnrt, 1 Term, 22, 431 
 
 Delano «. American Ins. Co., 42 Barb., 143, 
 
 1338 
 0. Bedford Marine Ins. Co., 10 Mass., 348, 
 
 1426 
 Delavigne r. United Stales Ins. Co., 1 Johns. 
 C 310, 1337 
 
 Delaware Ins. Co. o. Archer, 3 Rawle, 216, 
 
 1008 
 
 Delaware Ins. Co. v. Delaunie, 3 Binn., 295, 
 
 53 
 
 e. Hogan, 2 Wash. C. C, 4, 1166 
 
 0. Winter, 88 Penn. St., 176, 
 
 283, 783, 1508 
 Delonguemare i'. Tradcsmens Ins. Co., 2 Hall, 
 
 589, 131, 719, 1201 
 
 De Longuemere v. New York Fire Ins. Co., 
 
 10 Johns., 202, 128, 586 
 e. New York Fire Ins. Co., 10 Johns., 
 
 120, 126, 256 
 
 Delver o. Barnes, 1 Taunt, 48, 140, 1181 
 
 De Mattos v. Nortli, 3 L. E. Ex., 185; 37 L J. 
 
 Ex., 116 ; 18 L. T. (N. S.), 797, 1462 
 V. Saunders, 7 L. R. C. P., 570; 20 W. R, 
 
 801 ; 27, L. T. (N. S.), 120, 1391, 1325 
 Demill «. Hartford Fire Ins. Co., 4 Allen (N. 
 
 B.), 341, 361, 954 
 
 Denison t>. Modigliani, 5 Term, 580, 420 
 
 Dennis r. Ludlow, 3 Caines, 111, 1060, 1236 
 Dennison e. Thomaston, Mut Ins. Co., 23 Me., 
 
 135, 1303 
 
 Dennistoun «. Lillie, 3 Bli., 303, 1197 
 
 Denny v. Conway Stock & Mutual Fire Ins. 
 
 Co., 13 Gray, 493, 308 
 
 Denoon o. Home & Colonial Ass. Co., 7 L. R. 
 
 C. P., 341; 41 L. J. C. P., 162; 26 L. 
 
 T. (N. S), 628, 1480 
 
 Dent 0. Smitli, 4 L. R. Q. B., 414, 610 
 
 Depaba v. Ludlow, 1 Com., 360, 718 
 
 De Pau e. Ocean Ins. Co., 5 Cow., 63, 8. 88 
 
 0. Jones, 1 Brev, 437, 945, 1494 
 
 De Peau o. Russel, 1 Brev., 441, 
 
 271, 720, 1030 
 De Peyster v. Sun Mut Ins. Co., 19 N. Y., 272 ; 
 
 17 Barb., 306, 441, 1506 
 
 Deraismes v. Merchants Mut Ins. Co., 1 N. Y., 
 
 371, 1054 
 
 Dermani v. Home Mut Ins. C, 26 La. An., 69, 
 
 1386 
 De Ronge t. Elliott, 23 N. J. Eq., 486, 
 
 1533 
 Derrick «. Lamar Ins. Co., 7 Chi. Leg. News., 
 
 198, 233 
 
 Desborough r. Curlewis, 3 You. & Coll., 175, 
 
 955 
 
 V. Harris, 5 De G., M. & G., 439, 
 
 721, 723 
 
 e. Rawlins 3 Myl. & Cr., 515, 519 
 
 Deshon e. Merchants Ins. Co., 11 Met, 199, 
 
 12ol 
 Desilyer v. State Mut. Ins. Co., 38 Penn. St., 
 
 130, 1130 
 
 De Symons e. Johnston, 5 B. & P., 77, 
 
 953 
 De Tastet o. Taylor, 4 Taunt, 233, 628 
 
XXll 
 
 TABLE OF CASES. 
 
 De Vanx «. Astell, 4 Jnr., 1135, 966, 979 
 
 u. Astell, 10 L. J. C. P., 46, 966 
 
 B. Janson, 8 L. J. (N. S), C. P., 284; 5 
 
 Bing., (N. C), 519; 3 Jnr., eTS, 
 
 594,983 
 
 B. Steel, 6 Blng., N. C, 358 ; 8 Scott, 637, 
 
 703 
 
 Deveanx v. Salvador, 4 A. & E., 420; 5 L. J. 
 
 (N. S.) K. B., 134; 6 N. & M., 713, 
 
 230 
 
 Devendorf 1!. Beardsley, 23 Barb., 656, 1096 
 
 Devine u. Home Ins. Co., 32 Wis., 471, 830 
 
 Dewees v. Manhattan Ins. Co., 34 K. J., 244, 
 
 954, 963, 963, 1456, 1528 
 
 J). Manhattan Ins. Co., 35 N. J., 366, 
 
 1456 
 
 De Wolf V. Archangel Maritime Bank & Ins. 
 
 Co., 9 L. K. Q. B., 451 ; 43 L. J. Q. B., 
 
 147; 22W.R, 801, 418 
 8. New York Firemens Ins. Co., 20 Johns., 
 
 214; 2 Cow., 56, 259,808 
 c. State Mutual Fire & Marine Ins. Co., 
 
 6 Duer, 191, 586 
 
 Day V. PougUkeepsie Mut. Ins. Co., 23 Barb., 
 
 633, 178 
 
 Dhegetoft v. London Ass. Co., Hos., 83; 4 
 
 Bro. P. C. 436, 741 
 
 Dick B. Barrel!, 2 Strange, 1248, 985 
 
 Dickeson v. Jardine, 3 L. R. C. P., 639 ; 37 L. 
 
 J. C. P., 321; 18 L. T. (N. 8.). 717; 
 
 16 W. R., 1169, 58 
 
 Dickey v. American Ins. Co., 3 Wend., 658, 
 
 8.1437 
 
 B. Baltimore Ins. Co., 7 Cranch. 327, 183 
 
 v. New York Ins. C, 4 Cow., 222, 
 
 19, 758 
 
 D. United Ins. Co., 11 Johns., 358, 1014 
 
 Dickinson v. Phillips, 1 Barb., 454, 174 
 
 Dickson «. Equitable Ins. Co., 18 U. C. Q. B., 
 
 246, 554 
 
 n. Lodge, 1 Starkie, 226., 180, 207, 503 
 
 Diehl V. Adams County Mut. Ins. Co., 58 Penn. 
 
 SL, 443, 112, 271, 474 
 
 DUlard e. Manhattan Life Ins. Co., 44 6a., 
 
 119, 908 
 
 Dinning c. Phoenix Ins. Co., 68 III., 414, 888 
 Disbrow v. Jones, Harring. (Mich.) Ch., 48, 
 
 1345 
 Dittmer v. Germania Ins. Co., 33 La. An., 
 
 458, 659 
 
 Dix v. Mercantile Ins. Co, 22 111., 273^ 1390 
 
 D. Union Ins. Co., 23 Mo., 57, 1034 
 
 Dixon V. Reed, 5 B. & A., 597 ; 1 D. & R, 207, 
 
 1442 
 V. Sadler, 5 Mee. & W., 405; 8 id., 895; 
 
 9 L. J. (N. 8.) Ex., 48; 11 id., 435, 
 
 1156 
 
 Dixon B. Slansfleld, 10 C. B., 398, 758 
 
 Dobson v. Land, 8 Hare, 216; 4 DeG. & 8., 
 
 575, 804 
 
 T. Sotheby, 1 Moo. & M., 90, 1523 
 
 Dodge v. Bartol, 5 Me., 286, 897 
 
 B. Essex Ins. Co., 13 Gray, 65, 1040, 1177 
 
 V. Union Marine Ins. Co., 17 Mass., 471, 
 
 618. 1037 
 Dodge County Mut. Ins. Co. v. Rogers, 12 Wis., 
 
 337, 658, 1492 
 
 Dohn B. Farmers Joint Stock Ins. Co., 5 Lans., 
 
 275, - 131, 690, 1123 
 
 Dole B. Merchants Mut. Ins. Co., 51 Me., 465, 
 
 220 
 B. New England Mutual Marine Ins. Co., 
 
 2 CliS., 394, 213 
 B. New England Mutual Marine Ins. Co., 
 
 6 Allen, 378, 220 
 
 DomeH v. Young, 1 C. & M., 465, 1401 
 
 Domingo b. Merchants Mntnal Ins. Co., 19 
 
 La, An., 479, 947 
 
 Donald b. Life Ins. Co., 4 So. Car., 821 , 940 
 Donaldson b. Manchester Ins. Co., 14 C. C. S., 
 
 601, 234, 877 
 
 B. Thompson, 1 Camp., 429, 1280 
 
 Donath b. Insurance Company of North Amer- 
 ica, 4 Dall., 463, 1405 
 Donnell b. Columbian Ins. Co., 2 Snmn., 866, 
 
 899, 1063, 1271, 1499 
 Dormay b. Borradaile, 10 Beav., 335; 16 L. J. 
 
 Ch., 337; 5 C. B., 380; 11 Jur. 231, 
 
 380 
 Dom B. Germania Ins. Co., 8 Chi. Leg. News, 
 
 156, 134 
 
 Dorr B. New England Marine Ins. Co., 4 Mass., 
 
 221, 1408, 1409 
 
 B. New England Ins. Co., 11 Mass., 1, 1408 
 
 B. Pacific Ins. Co., 7 Wheat., 581, 266 
 
 B. Union Ins. Co., 8 Mass., 494; id., 502, 
 
 10,16 
 Douglas B. Scougall, 4 Dow., 269, 1361 
 
 Douglass B. Murphy, 16 U. C. Q. B., 113, 
 
 380,390 
 Douville B. Stm Mut. Ins. Co., 12 La. An, 
 
 259, 348 
 
 Dow B. Hope Ins. Co, 1 Hall (N. Y.), 166, 
 
 1009 
 
 B. Smith, 1 Caines, 32, 87 
 
 B. Whetten, 8 Wend, 160, 506, 1009 
 
 Dowdall B. Allen, 19 L. J. Q. B., 41, 968 
 B. Hallett, 14 Jur., 309; 19 L. J. Q. B., 
 
 37, 368 
 
 Dowell B. Moon, 4 Camp, 166, 367 
 
 Dowker b. Canada Life Ins. Co., 24 U. C. Q. 
 
 B., 591, 1231, 1463 
 
 Downs B. Hammond, 47 Ind., 131, 958 
 
TABLE OF CASES. 
 
 xxiu 
 
 Dows v. Howard Ins. Co., 5 Bob. (N. Y.), 
 
 473, 1512 
 
 Dowson c. Orr, 34 C. C. S., 566; 34 Scot. Jur., 
 
 289, 898 
 
 Doyle c. Anderson, 1 A. & E., 635; 4 N. & M., 
 
 873. 278 
 
 e. Dallas, 1 M. & Rob., 48, 1401 
 
 V. Phoenix Ins. Co., 44 Cal., 264, 959 
 
 e. Powell, 4 B. & Ad., 267; 1 N. & M, 
 
 678, 1043 
 
 Drake v. Farmers Mut. Ins. Co., 3 Grant's 
 
 Ch., 325, 838 
 0. Marryat, 1 B. & C, 474; 3 D. & R., 
 
 696, 485 
 
 Draper c. Charter Oak Fire Ins. Co., 2 Allen, 
 
 569, 667 
 «i Commercial Ins.<to., 21 N. T., 378; 4 
 
 Duer, 234, 1350 
 
 Dreher v. -Stoa Ins. Co., 18 Mo., 128, 
 
 1389 
 Driggi c. Albany Ins. Co., 10 Barb., 440, 
 
 299 
 Drinkwater c. London Ass. Corporation, 2 
 
 Wils., 363, 731 
 
 DriscoU o. BoviU, 1 B. & P., 313, 433 
 
 0. Passmoi«, 1 B. & P., 200, 433 
 
 Drj-sdale v. Piggott, 8 DeG. M. & G., 546; 2 
 
 Jur. (X. S.), 1078; 25 L. J. Ch., 878, 
 
 1332 
 Dacat e. Chicago (city of), 10 Wall^ 410, 
 
 1363 
 Dackett ». Williams, 4 Tyrw., 240; 3 Cromp. 
 
 & M., 348; 3 L. J. (N. S.) Ex., 141, 
 
 1298 
 Dados «. Citizens Mut Ins. Co., 33 La. An., 
 
 333, 859 
 
 Dudgeon v. Pembroke, 1 Q.B. D. Ex. Ch., 96; 
 
 9 L. R Q. B., 581 ; 43 L. J. Q. B., 230; 
 
 33 W. R., 914; 31 L. T. (N. S.), 31, 
 
 785,1344 
 Dnerhagen e. United States Ins. Co., 3 S. & 
 
 R, 309, 409 
 
 Dufaur v. Professional Life Ins. Co., 25 Beav., 
 
 599 ; 4 Jur. (N. S.), 841 ; 27 L. J. Ch., 
 
 817, 158 
 
 DuflFv. Mackenzie, 3 C. B. (N. S.), 16; 3 Jur. 
 
 (N. S.), 1035 ; 26 L. J. C. P., 313, 1510 
 Dugaet«. Rhinelander, 1 Caines Cas., 36, 
 
 325,806 
 1. Rhinelander, 2 Johns. C, 476 ; 1 id., 360 ; 
 
 1 Caines Cos., 26, 361 
 
 Domas o. Jones, 4 Mass., 647, 995 
 
 t. United States Ins. Co., 12 S. & R, 437, 
 
 1473 
 Duncan e. Chamberlayne, 11 Siin., 123 175 
 
 Duncan v. Great Western Ins. Co., 42* N. T.(3 
 
 Keyes), 894; 1 Abb. Dec, 563; 5 Bos., 
 
 378, n. ; 19 How. Pr., 312, 103 
 
 V. Koch, Wall. C. C, 38, 16 
 
 o. Sun Fire Ins. Co., 6 Wend., 488, 
 
 304, 1215 
 
 V. Sun Mut Ins. Co., 13 La. An., 486, 
 
 997 
 Dunham «. Commercial Ins. Co., 11 Johns., 
 
 315, 611, 843 
 
 Dunlop e. ^tna Ins. Co., 3 U. C. C. P., 252, 
 
 961 
 0. Allan, Faculty, Dec. 1781 to 1787, p. 
 
 371, 1003 
 
 Dunmore v. Allan, Faculty, Dec. 1781 to 1787, 
 
 p. 433, 371 
 
 Dunning v. Merchants Mutual Marine Ins. 
 
 Co., 57 Me., 108, 588, 786, 1398 
 
 Dupeyre v. Western Marine & Fire Ins. Co., 
 
 3 Rob. (La.), 457, 1259 
 
 Dapin e. Mutual Ins. Co., 5 La. An., 483, 731 
 Dupuy V. United States Ins. Co., 3 Johns. C, 
 
 183, 1437 
 
 Dnrand o. Thouron, 1 Porter (Ala.), 338, 695 
 Durar v. Hudson County Mut. Ins. Co., 34 N. 
 
 J., 171, 166, 169 
 
 Durrell v. Bederly, Holt N. P., 283, 265 
 
 Dutilh 0. Gatliff, 4 Dall., 446, 1404 
 
 Dutton V. New England Mutual Fire Ins. Co., 
 
 29 N. H., 153, 67.1 
 V. "Vermont Mutual Fire Ins. Co., 17 Vt, 
 
 369, 772. 1330 
 
 Duval e. Commercial Ins. Co., 10 Johns., 378, 
 
 218 
 Dyer c. Piscataqua Fire & Marine Ins. Co., 
 
 58 Me., 118, 973, 102a 
 
 Dyson o. Rowcroft, 3 R & P., 474, 1570 
 
 E. 
 
 Eadie o. Slimmon, 36 N. T., 9, 1534 
 
 Eagan «. Mutual Ins. Co., 5 Denio, 336, 666 
 Eager «. Atlas Ins. Co., 14 Pick., 141, 90 
 
 Eagle Ins. Co. v. La Fayette Ins. Co., 9 InU., 
 
 443, 770. 1183 
 
 Earl o. Shaw, 1 Johns. C, 314, 16, 180 
 
 Earle c. Harris, 1 Doug., 357, 1236 
 
 «. Rowcroft, 8 East, 136, 199 
 
 f). Westchester Fire Ins. Co., 39 Mich., 
 
 414, 522 
 
 Eastabrook «. Union Mutual Life Ins. Co., 54 
 
 Me., 234, 1357 
 
 Eastern Railroad «. Relief Fire Ins. Co., 98 
 
 Mass., 420, 1130, 1308 
 
XXIV 
 
 TABLE OF CASES. 
 
 Eastern Railroad v. Eelief Fire Ins. Co., 105 
 
 Mass., 570, 1123 
 
 Eastman v. Carroll County Mutual Fire Ins. 
 
 Co., 45 Me., 307, 161 
 
 Ebsworth v. Alliance Mut. Ins. Co., 8 L. R. C. 
 
 P., 596; 43 L. J. C. P., 805; 29 L. T. 
 
 (N. S.), 479, 564 
 
 Eclectic Life Ins, Co. v. Pahrenkrug, 08 111., 
 
 463, 1073, 1081, 1310 
 
 Eclipse Ins. Co. v. Schoemer, 2 Cin. Sup. Ct., 
 
 474, 652 
 
 Eddy V. Tennessee Marine Fire Ins. Co., 21 
 
 Mo., 487, 405 
 
 Eddy St. Foundry «. Camden Stock & Mut. 
 
 Ins. Co., 1 CliflF., 300, 1003 
 V. Farmers Mutual Fire Ins. Co., 5 R. I., 
 
 426, 308, 1001 
 
 Eden ®. Parkison, 2 Doug., 732, 809 
 
 Edes c. Hamilton Mut. Ins. Co., 3 Allen, 362, 
 
 668 
 Edgar v. Bumstead, 1 Camp., 411, 1394 
 
 V. Fowler, 3 East, 222, 365 
 
 Edge V. Duke, 18 L. J. Ch., 183, 945 
 
 Edington v. Mutual Life Ins. Co., 5 Hun. (N. 
 
 Y.), 1, 130, 518, 519, 788 
 
 Edmands «. Mutual Safety Fire Ins. Co., 1 
 
 Allen, 311, 068 
 
 Edmonstone v. Jackson, Faculty Dec. 1778 to 
 
 1781, p. 195, ■ 1432 
 
 Edwards «. Baltimore Fire Ins. Co., 3 Gill., 
 
 176, 889, 840, 1111, 1145 
 
 V. Footner, 1 Camp., 530, 1197 
 
 V. Lycoming County Mut. Ins. Co., 75 
 
 Penn. St., 378, 836 
 v. Martin, 1 L. R. Eq., 121; 13 L. T. (N. 
 
 S.), 236, 173 
 V. St. Louis Perpetual Ins. Co., 7 Mo., 
 
 382, 348 
 
 Egan V. Mutual Ins. Co., 5 Denio, 326, 
 
 283, 305 
 Ela V. French, 11 N. H., 356, 390 
 
 Elbers v. United Ins. Co., 16 Johns., 129, 
 
 812, 1328 
 Elkin V. Janson, 13 Mee. & W., 655 ; 14 L. J. 
 (N. a.) Ex., 201 ; 9 Jur., 353, 246 
 
 Ellery v. Merchants Ins. Co., 3 Pick., 46, 
 
 1326 
 
 V. New England Ins. Co., 8 Pick., 14, 
 
 443 
 
 Ellicott V. United States Ins Co., 8 G. & J., 
 
 166, 62 
 
 V. Alliance Ins. Co., 14 Gray, 318, 1441 
 
 Elliott V. Anderson, Faculty Dec, 1781 to 1787, 
 p. 843, 945 
 
 V. Hamilton Mut. Ins. Co., 13 Gray, 139, 
 
 1207, 1213 
 
 Elliott «. Lycoming County Ins. Co., 66 Penn. 
 
 St., 32, 857, 899, 1493 
 V. Royal Exchange Ass. Co., 2 L. E. Ex., 
 
 237; 16 L. T. (N. S.), 399; 15 W. R., 
 
 907; 36 L. J. Ex., 129, 188 
 V. Wilson, 4 Bro. P. C, 470; Faculty Dec. 
 
 1775 to 1777, p. 208, 411 
 
 Ellis V. Albany City Fire Ins. Co., 50 N. Y., 
 
 402; 4Lans., 433, 815 
 
 V. Kreutzinger, 27 Mo., 311, 759 
 
 V. Lafone, 8 Exch., 546; 17 Jur., 213; 23 
 
 L. J. Ex., 134, 403, 698 
 
 EUmaker v. Franklin Fire Ins. Co., 5 penn. 
 
 St., 183; 6 W. & S., 439, 
 
 S8i 1010 
 Elstnera. Equitable Ins. Co., 1 Disney, 413, 
 
 ^ 288, 493 
 Elting V. Scott, 2 Johns., 157, 
 
 295. 516, 1250, 1303 
 Elton V. Brogden, 2 Strange, 1264, 433 
 V. Larkins, 8 Bing., 198; 1 M. &i Scott, 
 
 333 ; 5 U. & P., 86, 385, 263, 541 
 
 Ely V. Ely, 8 Chi. Leg. News, 161, 1346 
 
 ■». Hallett, 2 Gaines, 57, 791 
 
 Embree v. Shideler, 36 Ind., 423, 155 
 
 Emerick «. Coakley, 35 Md., 188, 1533 
 
 Emery v. Piscataqua Fire and Marine Ins. Co., 
 
 53 Me., 322, 464 
 
 Eminence Mut. Ins. Co. v. Jesse, 1 Met. (Ky.), 
 
 623, 1383 
 
 Emmet v. Reed, 8 N. T., 31 2 ; 4 Sandf , 239, . 
 
 304 
 Emmott «. Slater Mutual Fire Ins. Co., 7 R 
 
 I., 562, 1317 
 
 England v. Tredegar, 35 Beav., 256, 779 
 
 English Ass. Co. In re Holdichs Case, 43, L. 
 
 J. Ch., 613: 14 L. R. Eq., 73; 20 W. 
 
 R., 567 ; 26 L. T. (N. S.), 415, 384 
 
 English and Irish Church and University Ass. 
 
 Soc, In re, 11 W. R., 681 ; 1 H. & M., 
 
 25; 8L.T. (N. S.),734, 894 
 
 Ennis v. Harmony Fire Ins. Co., 3 Bos., 516, 
 
 60 
 «. London Ass. Co., 19 C. B. (N. S.), 130; 
 
 11 Jur. (N. S.), 546 ; 84 L. J. C. P., 299 '; 
 
 13W.R.,863, 894 
 
 Entwisle v. Ellis, 3 H. & N., 549 ; 27 L. J. Ex., 
 
 105, 1511 
 
 Equitable Ins. Co. v. Cooper, 60 111., 509, 
 
 100 
 
 V. Hearne, 30 Wall., 494, ngg 
 
 Equitable Fire Ins. Co. v. Quin, 11 L. C, 170 
 
 390 
 
 Ervin v. New York Central Ins. Co , 3 N Y 
 S. C, 213, 531 
 
 Estes v. World Mutual Life Ins. Co., 6 Hnn 
 (N.Y.),849, 30^ 
 
TABLE OP CASES; 
 
 XXV 
 
 Etches !). Aldan, 1 M. & R., 157 ; 6 L. J. K. B., 
 
 65, 591 
 
 Eareka Ins. Co. v. Parks, 1 Cin. Sup. Ct., 574, 
 
 756 
 «. Robinson, 56 Penn. St., 356, 
 
 387, 456, 517, 527, 857 
 
 Evans V. Bignold, 4 L. R. Q. B., 633; 30 L. T. 
 
 (N. S.), 659, 1463 
 
 V. Columbian Ins. Co., 44 N. Y., 146, 547 
 
 v. Commercial Mut. Ins. Co., 6 R. I., 47, 
 
 378, 893 
 
 V. Hooper, 1 Q. B. D., 45, 79 
 
 V. Trimountaiff Mutual Fire Ins. Co., 9 
 
 Allen, 339, 664 
 V. United States Life Ins. Co., 3 Hun. (N. 
 
 T.), 587 ; 6 N. Y. S. C, 331, 932 
 
 Everard v. Hollingsworth, 3 B. & P., Ill, 
 
 1239 
 Everett v. Desborough, 5 Bing., 503 ; 3 M. & P., 
 
 190 ; 7 L. J. C. P., 223, 788, 1308 
 e. London Ass. Co., 19 C. B. (N. S.), 126; 
 
 s. c, 11 Jur. (N. S.), 546 ; 34 L. J. C. P., 
 
 399; 13W. R., 862, 649 
 
 Evers v. Life Association, 59 Mo., 439, 518 
 Evertli v. Blackbourne, 2 Starkie, 58 ; 6 Mau. & 
 
 Sel., 153, 211 
 
 V. Hannam, 6 Taunt., 875 ; 2 Marsh., 73, 
 
 303 
 
 V. Smith, 3 Mau. & Sel., 378, 583 
 
 v. Tunno, 1 Stark., 508; 1 B. & A., 142, 
 
 1064 
 
 Ewer D. Washington Ins. Co., 16 Pick., 502, 
 
 490 
 
 Excelsior Fire Ins. Co. v. Royal Ins. Co., 55 
 K. Y., 343 ; 7 Lans., 138, 317, 830 
 Ever V. Glover, 16 East, 218; 3 Camp., 376, 
 
 1100 
 
 ■ V. Marine Ins. Co.. 6 Whart., 247, 191 
 
 D. Palsgrave, 2 Camp., 605, 485 
 
 F. 
 
 Fabbri v. Mercantile Mut. Ins. Co., 6 Lans., 
 
 446; 64 Barb., 85, 305 
 
 B. Phoenix Ins. Co., 55 N. Y., 129, 305 
 
 Fabyan v. Union Mutual Fire Ins. Co., 33 N. 
 
 H., 203, 656, 856 
 
 Fair «. Manhattan Ins. Co., 113 Mass., 330, 
 
 1000, 1164 
 Fairchild d. Liverpool and London Ins. Co., 
 
 51 N. Y., 65 ; 48 Barb., 420, 559 
 
 Fairlie ■b. Christie, 7 Taunt., 416 ; H.ilt N. P., 
 
 331; 1 Moore, 114, 130 
 
 Falls V. Conway Mutual Fire Ins. Co., 7 Allen, 
 
 46, 668 
 
 Falkner v. Ritchie, 2 Mau. & Sel., 204, 
 
 390, 1430 
 
 Family Endowment Soc. In re, 5 L. R. Ch., 
 
 118; 31 L. T. (N. S.), 775, 841 
 
 Faris v. ITewburyport Marine Ins. Co., 3 Mass., 
 
 476, 1469 
 
 Farmers and Mechanics Ins. Co. v. Simmons, 
 
 30 Penn. St. 399, 135, 748 
 
 Farmers and Merchants Ins. Co. v. Chesnut, 
 
 50 111., Ill, 332, 1073 
 
 ■». Harrah, 47 Ind., 336, 1317 
 
 ■». Smith, 63 111., 187, 374 
 
 Farmers Insurance and Loan Co. «. Snyder, 
 16 Wend., 481; 13 id., 93, 799 
 
 Farmers Loan and Trust Co. v. Harmony Fire 
 and Marine Ins. Co., 51 Barb., 33 ; 41 
 N. Y. (2 Hand), 519, 999 
 
 Farmers Mut. Ins. Co. v. Graybill, 74 Penn. 
 St., 17, 106, 283, 1104 
 
 s. Marshall, 29 Vt., 23, 1001 
 
 V Taylor, 73 Penn. St., 342, 870, 1071 
 
 Farnworth v. Hyde, 2 L. R. C. P., 304; 13 Jur. 
 
 (N. S.), 997 ; 35 L. J. C. P., 250 ; 36 id., 
 
 33; 15 L. T. (N. S.), 395; 15 W. R., 
 
 340; 18 C. B. (N. S.), 835; 11 Jur. (N. 
 
 S.), 349; 34 L. J. 0. P., 207; 13 W. R, 
 
 613; 12 L. T. (N. S.), 231, 142.t 
 
 Farrow «. Commonwealth Ins. Co., 18 Pick., 
 
 63, " 67 ' 
 
 Faudel v. Phcenix Ins. Co., 4 S. & R., 39, 1377 
 
 Faugier v. Hallet, 3 Johns. C, 333, 88 
 
 Faulkner e. Augusta Ins. Co., 3 McMullen, 158, 
 
 58 
 
 ■». Central Fire Ins. Co. of N. B., 1 Kerr, 
 
 279, 750 
 
 Fawcns«. Sarsfleld, 6 El. & Bl., 193; 3 Jur. 
 (N. S.), 665; 25 L. J. Q. B., 249, 1246 
 Fay V. Alliance Ins. Co., 16 Gray, 455, 
 
 91, 374, 1049 
 Fayette Mutual Fire Ins. Co. ■». Fuller, 8 Al- 
 len, 27, 152 
 Fayle ®. Bourdillion, 3 Taunt., 546, 637 
 Fayles v. National Ins. Co., 49 Mo., 380, 1074 
 Feeny v. People's Fire Ins. Co., 3 Rob. (N. Y.), 
 599, 398, 972 
 Feise v. Aguilar, 3 Taunt., 506, 1474 
 
 V. Bell, 4 Taunt., 4, 628 
 
 V. Newnham, 16 East. 197, 633 
 
 «. Parkinson, 4 Taunt., 640, 1230 
 
 V. Waters, 3 Taunt., 349, 643 
 
 Fell V. Lutwidge, Barn. Ch,, 319, 897 
 
 Fellowes v. Madison Ins. Co., 3 Disney, 138, 
 
 1177 
 Felton V. Brooks, 4 Cush., 303, ' 1340 
 Fenn v. Craig, 3 You. & Coll., 316, 74 
 V. Edmonds, 5 Hare, H14, 721, 722 
 
XXVI 
 
 TABLE OF CASES. 
 
 Fenn v. New Orleans Ins. Co., 53 Ga., 578, 695 
 Fenwick v. Robinson, 3 C. & P., 333, 844 
 
 Ferebee ». North Carolina Home Ins. Co., 68 
 
 N. C, 11, 937 
 
 Ferguson v. Phoenix Ins. Co , 5 Biun., 544, 
 
 1028 
 Fernandez v. Great Western Ins. Co., 48 N. Y., 
 
 571 ; 3 Bob., 457, 408 
 ®. Merchants Mut. Ins. Co., 17 La. An., 
 
 131, 1370 
 
 Fernie «. Maguire, 6 Irish Eq., 137, 737 
 
 Ferree d. Oxford Ins. Co., 67 Penn. St., 373; 8 
 
 Phila., 512, 179 
 
 Ferrer ». Home Mut. Ins. Co., 47 Cal. 416, 
 
 127, 823, 952 
 Ferrier v. Sandieman, Faculty Dec, 1808 to 
 
 1810, p. 373, 1419 
 
 Ferriss v. North America Fire Ins. Co., 1 Hill, 
 
 71, 50, 555 
 
 Fiedler v. New York Ins. Co., 6 Duer, 282, 
 
 578, 1438 
 Field 1!. Citizens Ins. Co., 11 Mo., 50, 581 
 V. Insurance Co. of North America, 3 
 
 Md., 244, 379, 1258 
 
 Fifield B. Insurance Co. of Pennsylvania, 47 
 
 Penn. St., 166, 230 
 
 Finley ®. Lycoming Ins. Co., 30 Penn. St., 811, 
 
 98. 474 
 Finney ®. Bedford Commercial Ins. Co., 8 
 
 Met., 348, 136, 491 
 
 e. Fairhaven Ins. Co., 5 Met., 192, 1091 
 
 V. Warren Ins. Co., 1 Met., 16, 996, 1229 
 
 Fire Association v. Williamson, 26 Penn. St., 
 
 196, 1485 
 
 Fire and Marine Ins. Co. of Wheeling v. Mor- 
 rison, 11 Leigh, 354, 714, 1346 
 Firemens Benevolent Ass'n v. Lounsberry, 31 
 
 111., 511, 1364 
 
 Firemens Fund Ins. Co. v. Congregation of 
 
 Rodeph Sholem, 8 Chi. Leg. News, 
 
 178, 69, 550 
 
 Firemens Ins. Co. v. Crandall, 33 Ala., 9, 
 
 1135 
 
 v. Fitzhugh, 4 B. Mon., 16, 890 
 
 V. Powell, 13 B. Mon., 311, 
 
 91, 298, 739, 1045, 1153 
 First Baptist Church o. Brooklyn Fire Ins. 
 
 Co., 19 N. Y.,, 305 ; 18 Barb., 69, 
 
 337,884,1333 
 V. Brooklyn Fire Ins. Co., 28 N. Y., 153; 
 
 23 How. Pr., 448, 337, 511 
 
 First Baptist Society «. Hillsborough Ins. Co., 
 
 19 N. H., 580, 869 
 
 First Congregational Church v. Western Ass. 
 
 Co., 36 U. C. Q. B., 175, 284 
 
 First National Bank v. Insurance Co. of North 
 America, 50 N. Y., 45 ; 5 Lans., 203, 
 
 1517 
 
 Fish V. Liverpool, London and Globe Ins. Co., 
 44 N. Y., 538, 356, 883 
 
 Fisher v. Cochran, 5 Tyrw., 496; 4 id., 434; 1 
 C. M. & R., 809 ; 2 Cromp. & M., 581 ; 
 
 3 L. J. (N. S.) Ex., 185 ; 4 id., 338, 
 
 1338 
 V. Liverpool Marine Ins. Co., 8 L. K. Q. 
 
 B., 469 ; 9 id., 418 ; 43 L. J. Q. B., 334; 
 
 43 id., 114; 33 W. R., 13, 951; 38 L. 
 
 T. (N. S.), 867; 30id., 501, 353 
 
 V. Ogle, 1 Camp., 418, 1380 
 
 Fisk V. Masterman, 8 Mee. & W., 165; 10 L. J. 
 
 Ex., 306, 1331 
 
 Fiske V. New England Ins. Co., 15 Pick., 310, 
 
 337, 350 
 Fitch V. American Popular Life Ins. Co., 3 N. 
 
 Y. S. C.,247; 59 N. Y., 557, 
 
 794, 1303 
 Fitchburg Railroad v. Charleston Mutual Fire 
 
 Ins. Co., 7 Gray, 64, 1000 
 
 Fitton V. Accidental Death Ins. Co., 17 C. B. 
 
 (N. S.), 133 ; 34 L. J. C. P., 28, 43 
 Fitzherbert v. Mather, 1 Term, 12, 347 
 
 Fitzpatrick v. Mutual Benevolent Life Ins. 
 
 Ass'n, 35 La An., 443, 933 
 
 Fitzsimmons v. City Fire Ins. Co., 18 Wis., 
 
 334, 966, 1848 
 
 V. Newport Ins. Co., 4 Cranch, 185, 
 
 1374 
 Flanagan v. Camdea Mut. Ins. Co., 35 N. J., 
 
 506, 49, 77 
 
 Flanigen v. Washington Ins. Co., 7 Penn. St., 
 
 306, 374, 947 
 
 Fleming v. Insurance Co., 13 Penn. St., 891, 
 
 68,509,1236 
 
 ■». Smith, 1 H. L. Cas., 513, 23 
 
 ■». Smith, 8 C. C. S., 627; 18 Scot. Jur., 
 
 319, 33 
 
 V. Marine Ins. Co., 3 W. & S., 144, 
 
 787, 1064 
 «. Marine Ins. Co., 4 Whart., 59, 
 
 815, 1063, 1064 
 
 Fletcher fl. Alexander, 3 L. R. C. P., 375; 37 
 
 L. J. C. P., 193; 18 L. T. (N. S.), 432; 
 
 16 W. R., 803, 619 
 
 ■». Commonwealth Ins. Co., 18 Pick., 419, 
 
 248,373 
 
 !). Inglis, 2 B. & A., 315, 1020 
 
 V. St. Louis Marine Ins. Co., 18 Mo., 193, 
 
 444,1046 
 Flindt V. Scott, 5 Taunt., 674; 15 East, 525, 
 
 639 
 V. Waters, 15 East, 360, 30 
 
TABLE OF CASES. 
 
 xxvn 
 
 Flinn ®. He.idlam, 9 B. & C, 693 ; 7 L. J. K. 
 
 B., 307, 798 
 
 «. Tobin, Moo. & M., 367, 798 
 
 Flint V. Flemyng, 1 B. & Ad., 45; 8 L. J. K. 
 
 B., 350, 591 
 
 ■». Ohio Ins. Co., 8 Oliio, 501, 936 
 
 Flynn c. Merchants Mutual Ins. Co., 17 La. 
 
 An., 135, 149, 400, 974 
 D. North America Life Ins. Co., 115 Mass., 
 
 449, 76 
 Fogg 0. Griffin, 3 Allen, 1, 512,. 972 
 V. Middlesex Mutual Fire Ins. Co., 10 
 
 Cush., 337, 705 
 
 V. Pew, 10 Gray, 409, 1056 
 
 Foley V. Moline, 5 Taunt, 430 ; 1 Marsh., 117, 
 
 250 
 
 B. Tabor, 2 F. & F., 663, 258 
 
 V. United Fire and Marine Ins. Co., 5 L. 
 
 E. C. P., 155; 39 L. J. C. P., 206; 22 
 
 L. T. (N. S.), 108 ; 18 "W. R., 437, 596 
 Folsom v. Belknap County Mutual Fire Ins. 
 
 Co., 38 N. H., 331, 77 
 V. Merchants Mutual Ins. Co., 38 Me., 
 
 414, 436, 565, 703 
 D. Merchants Mut. Ins. Co., 8 Blatch, 170; 
 
 9 id., 201; 18 "Wall., 237. 777 
 
 Fontaine v. Columbian Ins. Co., 9 Johns., 30, 
 
 784, 1013 
 
 o. Phoenix Ins. Co., 10 Johns., 58, 1257 
 
 V. Phoenix Ins. Co., 11 Johns., 393, 642 
 
 Foot V. Mtaa. Life Ins. Co., 4 Daly, 285, 
 
 1295 
 Forbes v. Agawam Mutual Fire Ins. Co., 9 
 
 Cush., 470, 476, 854 
 v. American Mutual Life Ins. Co., 15 
 
 Gray, 249, 950, 1310, 1393 
 
 V. Aspinwall, 13 East, 333, 1479 
 
 ■». Church, 3 Johns. C, 158, 
 
 398, 1337, 1488 
 
 ■». Cowie, 1 Camp., 520, 1011 
 
 v. Edinburg Life Ass. Co., 10 8. & D., 451 ; 
 
 4 Scot. Jur., 385, 1097, 1300, 1309 
 
 «. Manufacturers Ins. Co., 1 Gray, 371, 
 
 58, 1440, 1470 
 Forbush v. Western Massachusetts Ins. Co., 4 
 
 Gray, 337, 281 
 
 Ford V. Buckeye Ins. Co., 6 Bush, 133, 1817 
 
 «. Ryan, 4 Ir. Ch., S43, 896 
 
 Foreshaw v. Chabert, 3 B. & B., 158; 6 Moore, 
 
 369, 121, 1263 
 
 Forgay v. Atlantic Mut. Ins. Co., 3 Rob. (N. 
 
 Y.), 79, 565 
 
 Fort V. Lee, 8 Taunt, 381, 250 
 
 Fosdick V. Norwich Ins. Co., 3 Day, 108, 
 
 178, 1099 
 Foster v. Alvez, 3 Bing. (N. C), 896, 824 
 
 Foster «. Christie, 11 East, 205, 1031 
 11. Equitable Mutual Fire Ins. Co., 2 Gray, 
 
 316, 156, 1340 
 
 «. Hoyt, 3 Johns. C, 327, 1287 
 
 V. Jackson Marine Ins. Co., Edw. S. C. 
 
 (N. Y.), 290, 438, 1143 
 V. Mentor Life Ass. Co., 3 El. & Bl., 48; 
 
 18 Jur., 827 ; 23 L. J. Q. B., 145, 
 
 264, 1450 
 
 V. Reeve, 5 L. J. K. B., 73, 1419 
 
 V. Steele, 3 Bing. (N. C), 892 ; 6 L. J. (N. S.) 
 
 C. P., 265, 824 
 
 V. United States Ins. Co., 11 Pick., 85, 
 
 563, 995, 1095 
 
 V. Van Reed, 5 Hun. (N. Y.), 321, 1338 
 
 ■». Wilmer, 2 Strange, 1249, 436 
 
 Fourdiner v. Hartford Fire Ins. Co., 15 U. C. 
 
 C. P., 403, 310, 654 
 
 Fowkes V. Manchester & London Life Ass. 
 
 Co., 3 F. & F., 440; 3 B. & S., 917; 
 
 32 L. J. Q. B., 153; 11 W. R.. 623; 8 
 
 L. T. (N. S.) 309, 1308 
 
 Fowler V. ^tna Fire Ins. Co., 6 Cow., 673, 
 
 530, 1519 
 
 V. ^tna Fire Ins. Co., 7 Wend., 270, 
 
 818, 1449 
 
 V. Atlantic Mut. Ins. Co., 8 Bos., 332, 51 
 
 V. English & Scottish Marine Ins. Co., 18 
 
 C. B. (N. 8.), 818; 11 Jur. (N. S.), 411 ; 
 
 34 L. J. C. P., 253; 13 W. R., 658; 13 
 
 L. T. (N. S.), 381, , 323 
 
 V. Mutual Life Ins. Co., 4 Lans., 302, 678 
 
 V. New York Indemnity Ins. Co., 36 N. 
 
 Y.,422; 23 Barb., 143, 956 
 V. Scottish Equitable Life Ass. Co., 38 L. 
 
 J. Ch., 335 ; 4 Jur. (N. 8.), 1169, 1179 
 Fowley ■». Palmer, 5 Gray, 549, 803 
 
 Fox V. Conway Fire Ins. Co., 53 Me , 107 , 
 
 973, 1121 
 
 0. Phoenix Ins. Co., 52 Me., 333, 870 
 
 Foy V. .^tna Ins. Co., 3 Allen (N. B.), 29 830 
 
 «. Bell, 3 Taunt, 493, 1285 
 
 Francis v. Butler Mutual Fire Ins. Co., 7 R. I.,» 
 
 159, 157 
 V. Ocean Ins. Co., 6 Cow., 404; 2 Wend. 
 
 64, 521, 535. 638, 753, 850, 1112, 1276 
 
 V. Somerville Mut. Ins. Co., 35 N. J., 78, 
 
 655, 1129 
 Franco v. Natusch, 6 Tyrw.. 401, 
 
 847, 1255, 1465 
 Franklin ®. Atlantic Ins. Co., 43 Mo., 456, 466 
 
 V. National Ins. Co., 43 Mo., 491, 93, 95 
 
 Franklin Fire Ins. Co. v. Brock, 57 Penn. St., 
 
 74, 1459 
 
 V. Chicago Ice Co., 36 Md., 103, 
 
 134, 1116, 1380 
 
XXVUl 
 
 TABLE OF CASES. 
 
 Franklin Fire Ins. Co. v. Coates, 14 Md., 285, 
 
 262, 693, 1108 
 D. Findlay, 6 Whart., 483, 101, 124 
 
 V. Hamill, 6 Gill., 87; 5 Md.,170, 
 
 683, 973 
 
 c. Hewitt, 3 B. Mon., 231, 1173 
 
 V. Massey, 33 Penn. St., 221 49, 1071 
 
 V. Updegraff, 43 Penn. St., 350, 
 
 377, 555, 833, 1129, 1131, 1145, 1214 
 Franklin Ins. Co. «. Cobb, 3 Cin. Sup. Ct., 87, 
 
 1028, 1059, 1267 
 
 V. Culver, 6 Ind., 137, 556, 733 
 
 Louisville and Arkansas Packet Co., 9 
 
 Bush., 590, 1317 
 
 ■». McCrea, 4 Greene, 229, 129, 738 
 
 Franklin Life Ins. Co. v. Haazard, 41 Ind., 116, 
 
 700 
 
 Franklin Marine and Fire Ins. Co. v. Drake, 
 
 3 B. Mon., 47, 717, 873 
 
 Fraternal Mutual Life Ins. Co. v. Applegate, 
 
 7 Ohio St., 292, 514, 1221 
 
 Frazer v. Galloway, Faculty Dec. 1808 to 1810, 
 
 p. 298, 1077 
 
 Frederick County Mut. Ins. Co. v. Deford, 38 
 
 Md., 404, 498, 503, 1124, 1210 
 
 Freeland o. Glover, 7 East, 457; 6 Esp., 14; 3 
 
 Smith, 43, 254 
 
 V. "Walker, 4 Taunt., 478, 628 
 
 Freeman v. Fulton Fire Ins. Co., 88 Barb., 
 347; 14 Abb. Pr., 398, 956 
 
 Prieres.Woodhouse, Holt N.P.,572, 
 
 357, 1061 
 French v. Backhouse, 5 Burr., 3737, 718, 1095 
 
 V. Connelly, 2 Anst, 454, 735 
 
 v. Hope Ins. Co., 16 Pick., 397, 1099 
 
 «. Patten, 1 Camp., 72, 180 b. ; 9 East, 351, 
 
 121, 1313 
 
 V. Royal Exchange Ass. Co., 7 Irish Ch., 
 
 o23; 6 id., 523, 730 
 
 Frichette c. State Mutual Fire and Marine 
 
 Ins. Co., 3 Bos., 190, 1014 
 
 Fried d. Royal Ins. Co., 50 N. Y., 343 ; 47 Barb., 
 
 137, 315, 391 
 
 Friedlander d. London Ass. Co., 4 B. & Ad., 
 
 193 ; 1 Nev. & Man., 31, 541 
 
 «. London Ass. Co., 1 M. & Rob., 171, 
 
 403, 453 
 Friend v. Gloucester Ins. Co.. 113 Mass., 326, 
 
 393 
 Frierson o. Brenham, 5 La. An., 540, 566 
 
 Priesmith v. Agawam Mutual Fire Ins. Co., 
 10 Cush., 587, 667, 791, 1332 
 
 Frink i>. Hampden Ins. Co., 45 Barb., 384 ; 31 
 How. Pr., 30 ; 1 Abb. Pr. (N. S.}, 343, 
 
 59 
 
 Frisbie «. Fayette Mutual Ins. Co., 27 Penn. 
 
 St., 335, 1521 
 
 Froelich v. Atlas Life Ins. Co., 47 Mo., 406, 
 
 921 
 
 Frost V. Saratoga County Mut. Ins. Co., 5 
 
 Denio, 154, 454, 1051 
 
 Frothingham v. Prince, 3 Mass,, 563, 390 
 
 Fallam v. New York Union Ins. Co., 7 Gray, 
 
 61, 771 
 Puller V. Alexander, 1 Brev., 149, 820 
 V. Boston Mutual Fire Ins. Co., 4 Met., 
 
 206, 1470 
 V. Kennebec Mutual Ins. Co., 31 Me., 
 
 325, 1399 
 
 V. McCall, 1 Yeales, 464; 2 Dall., 219, 19 
 
 V. Madison Mutual Ins. Co., 36 Wis., 599, 
 
 671 
 Fulton V. Lancaster Ins. Co., 7 Ohio, 2d part, 5, 
 
 1150 
 Fulton Ins. Co. v. Goodman, 32 Ala., 108, 
 
 7, 37, 535, 1060, 1441 
 
 B. Milner, 23 Ala., 430, 810, 1450 
 
 Furtado v. Rodgers, 3 B. & P., 191, 867, 1333 
 
 G. 
 
 Gabay s. Lloyd, 3 B. & C, 793 ; 5 D. & R, 641 , 
 3 L. J. K. B., 116, 1031 
 
 Gahagan v. Union Mutual Fire Ins. Co., 43 N. 
 H., 176, 670 
 
 Gahn v. Broome, 1 Johns. C, 120, 385 
 
 Gairdner if. Milne, 20 C. C. 8., 565, 214 
 
 ■». Senhonse, 3 Taunt., 16, 411 
 
 Gale V. Belknap County Ins. Co., 41 N. H., 
 170, 868 
 
 V. Lewis, 9 Q. B., 730; 16 L. J. Q. B., 119, 
 
 1077 
 Galloway v. Craig, 23 C. C. S., 13; 32 id., 1311, 
 
 1531 
 Gamba v. Le Mesnricr, 4 East, 407, 365 
 
 Gambles®. Ocean Marine Ins. Co., 1 Ex. D. 8 
 
 1044 
 Gambs «. Covenant Mutual Life Ins. Co., 50 
 
 Mo., 44, ig29 
 
 Gammon v. Beverly, 8 Taunt., 119; 1 Moore, 
 
 563, 89 
 
 Gamwell v. Merchants and Farmers Mut. Ins. 
 
 Co., 13 Cush., 167, 376,838 
 
 Gandy v. Adelaide Marine Ins. Co., 6 L. R. Q. 
 
 B., 746 ; 40 L. J. Q. B., 239, zm 
 
 Garcelon v. Hampden Fire Ins. Co., 50 Me 
 
 580, 151^ 
 
 Gardere v. Columbian Ins. Co., 7 Johns., 514, 
 
 478, 782, 1058 
 Gardiner v. Crosedale, 1 W. Bl. 198; 2 Burr 
 
 904 97^ 
 
TABLE OF CASES. 
 
 XXIX 
 
 0. Piscataquis Mutual Fire Ins. Co., 38 
 
 Me., 439, 94,658 
 
 r. Smith, IJohns. C, 141, 1406 
 
 Gardner «. Hamilton Ins. Co., 33 N. T., 421, 
 
 838 
 
 «. Salvador, 1 M. & Rob., 116 , 783 
 
 Garner e. Moore, 34 L. J. Ch., 687; 8 Drew, 
 
 277, 1094 
 
 Garness o. Heinke, 40 L. J. Ch., 306, 59 
 
 Garrels e. Kensington, 8 Term, 330, 814 
 
 Garrellc. Hanna,5H. & J., 412, 997 
 
 GaiTett r. Provincial Ins. Co., 20 U. C. Q. B., 
 
 300, 1519 
 
 Garrignes t. Coxe, 1 Binn., 593, 
 
 269,1015,1251 
 Garrison o. Memphis Ins. Co., 19 How., 312, 
 
 734 
 Gasner v. Metropolitan Ins. Co., 13 Minn., 483, 
 
 1457 
 Gatayes c. Flather, 34 Beav., 387, 167 
 
 Gates c. Madison County Mut. Ins. Co., 3 N. 
 
 T., 43, 264 
 c. Madison County Mutual Ins. Co., 5 N. 
 
 T., 469; 3 Barb., 73, 
 
 85,1152,1457,1458 
 
 V. Smith, 4 Edw. Ch., 703. 104, 731 
 
 Gaty r. Phcenix Ins. Co., 30 Mo., 56, 1514 
 
 Gavin o. Glen, Faculty Dec. 1781 to 1787, p. 
 
 419, 1433 
 
 Gay v. Union Mutual Life Ins. Co., 9 Blatch., 
 
 143, 678, 1356 
 
 Gaylord c. Lamar Fire Ins. Co., 40 Mo., 13, 
 
 40, 1374 
 Gaytes f>. Hibbard, 5 Biss., 99, 453 
 
 Gazzam c. Cincinnati Ins. Co., 6 Ohio, 71, 
 
 819,1019,1267,1496 
 Geach c. Ingall, 14 Mee. & W., 95; 15 L. J. 
 
 Ex., 37; 9 Jur., 691, 1308 
 
 Gree V. Cheshire County Mut. Ins. Co., 55 N. 
 
 H., 65. 856 
 
 Geib r. International Ins. Co., 1 Dil. Cir. C, 
 
 443, 505,551,673,863,1063 
 
 Geis c. Bechtner, 12 Minn., 279, 189 
 
 Gelsek o. Crescent Mut. Ins. Co., 19 La. An., 
 
 297, 1018 
 
 General Interest Ins. Co. c. Raggles, 13 Wheat., 
 
 408; 4 Mason, 74, 851 
 
 General Mut Ins. Co. r. Sherwood, 14 How., 
 
 351; 1 Blatch., 251, 327,230 
 
 General Provincial Life Ass. Co., In re. Ex 
 
 parte Daintrec, 18 W. R , 396 , 794 
 Georgia Home Ins. Co. o. Jones, 49 Miss., 80, 
 
 398.695 
 Georgia Insurance and Trust Co. «. Dawson, 3 
 
 Gill, 865. 1153 
 
 Georgia Masonic Mutual Life Ins. Co. v. Gib- 
 son, 52 Ga., 640, 538, 927 
 
 V. Whitman, 53 Ga., 419, 383 
 
 Gterhauser v. North British and Mercantile 
 Ins. Co., 6Nev., 15, 558 
 
 V. North British and Mercantile Ins. Co., 
 
 7 Nev., 174. 357,403,485,558 
 
 German Mutual Fire Ins. Co. r>. Franck, 23 
 Ind., 364. 805 
 
 Gcrmania Fire Ins. Co. «. Curran, 8 Kan., 9. 
 69,835,952,1135,1140 
 
 V. Sherlock, 35 Ohio St., 33, 202 , 1 154 
 
 Germond v. Home Ins. Co., 3 Hun. (N. Y ), 
 540; 5N. T. S. C, 120, 1389 
 
 Gcrnon «. Royal Exchange Ass. Co., 6 Taunt., 
 383; 2 Marsh., 88; Holt, N. P., 49, 
 
 17, 1399 
 
 Gerrish «. German Ins. Co., 55 N. H., 355, 
 
 737 
 
 Getchel v. ^tna Ins. Co., 14 Allen, 325, 1009 
 
 Geyer v. Aguilar, 7 Term, 681, 1273 
 
 Gibbs «. Queen Fire Ins. Co., 5 L. J., 235, 1283 
 
 Gibson V. American Mut Ins. Co., 37 N. T., 
 580, 531,1120 
 
 o. Bradford, 4 El. & Bl., 586; 1 Jur. (N. 
 
 S.), 520 ; 34 L. J. Q. B., 159. 1035 
 
 V. Farmers and Merchants Ins. Co., 1 
 
 Cin. Sup. Ct, 410, 288 
 
 o. Overbury, 10 L. J. Ex., 219, 760 
 
 V. Service, 5 Taunt, 483 ; 1 Marsh., 119, 
 
 645 
 
 e. Winter, 5 B. & Ad., 96 ; 2 N. & M., 737, 
 
 895 
 Gilbert c. American Ins. Co., 30 Mich., 400, 
 
 1312 
 V. Galloway, Faculty Dec. 1810 to 1813, 
 
 p. 294, 215 
 
 V. National Ins. Co., 12 Ir. L. R., 143, 
 
 953, 1378 
 o. North AmericEin Ins. Co.. 28 Wend., 
 
 43, 102,1120,1493 
 
 0. Phoenix Ins. Co., 36 Barb., 872 , 853 
 
 Giles V. Eagle Ins. Co., 2 Met, 140, 608, 890 
 Gilfert v. Hallet, 2 Johns. C, 296, 426 , 1407 
 Gillespie «. British American Fire and Life 
 
 Ass. Co., 7 U. C. Q. B., 108, 1151 
 V. Commercial Mutual Mai-ine Ins. Co., 
 
 13 Gray, 201, 12S3 
 0. Douglass, Faculty Dec. 1801 to 1807, p. 
 
 351, 340 
 
 Gilliat o. Pawtncket Mutual Fire Ins. Co., 8 
 
 R I., 383, 457, 839, 153G 
 
 Gillilan v. Sun Mut Ins. Co., 41 N. T. ( 3 
 
 Hand), 376, 895 
 
 Girard Fire and Marine Ins. Co. v. Stephen- 
 son, 37 Penn. St, 298 388, 1199 
 
XXX 
 
 TABLE OF CASES. 
 
 Girard Ins. Co. v. Field, 45 Penn. St., 129, 
 
 187 
 Gist V. Mason, 1 Term, 88, 823 
 
 Gladstone v. Clay, 1 Man. & Sel., 418, 604 
 
 V. King, 1 Mau. & Sel., 35, 247 
 
 Gledstanes «. Royal Exchange Ass. Co., 5 B. 
 & S., 797; 11 Jur. (N. S.), 108; 34 L. 
 J. Q. B., 80; 13 W. R., 71; 11 L. T. 
 (N. S.), 305, 333 
 
 Glendale Woolen Co. ■». Protection Ins. Co., 21 
 Conn., 19, 1452, 1518 
 
 Glen v. Hope Mutual Life Ins. Co., 56 N. T., 
 379; 1 N. Y. S. O., 463, 1337 
 
 c. Lewis, 8 Exch., 607; 22 L. J. Ex., 228; 
 
 17 Jur , 842, 1516 
 
 Glennie v. Edmunds, 4 Taunt, 775, 1290 
 
 o. London Ass. Co., 2 Mau. & Sel., 371, 
 
 1503 
 
 Glens Falls Ins. Co. v. Judge of Circuit Court 
 
 of Jackson County, 21 Mich., 577, 
 
 1192 
 
 Glidden®. Manufacturers Ins. Co., 1 Sumn., 
 
 232, 405 
 
 Globe Ins. Co. In re, Ex parte Braine, 2 Edw. 
 
 Ch., 625, 1284 
 
 1). Boyle, 21 Ohio, St., 119; 1 Cin. Sup. 
 
 Ct., 444, 563, 499, 1115, 1172 
 
 V. Sherlock, 25 Ohio St.. 50, 1329, 1449 
 
 Globe Mutual Life Ins. Co. v. Reals, 48 How. 
 
 Pr., 502, 734 
 
 Gloucester Ins. Co. v. Younger, 2 Curtis, 322, 
 
 28,32,745,1059 
 
 Gloucester Manufacturing Co. d. Howard Fire 
 
 Ins. Co., 5 Gray, 497, 1069, 1518 
 
 Glover b. Black, 3 Burr., 1394; 1 W. Bl., 396. 
 
 399, 405, 422, 286 
 
 Glynn v. Locke, 2 Con. & Law., 21 ; 5 Irish 
 
 Eq. R., 61, 723 
 
 Goddard n. Monitor Ins. Co., 108 Mass., 56, 
 
 342 
 Goddart v. Garrett, 2 Vern., 269, 735 
 
 Godinv. London Ass. Co., 1 Burr., 489; 1 W. 
 Bl., 103, 453 
 
 Godsall 0. Boldero, 9 East, 73, 706 
 
 Goetzman v. Connecticut Mutual Life Ins. 
 Co., 3 Hun. (N. Y.;, 515; 5N. Y.S. 
 C, 572. 393 
 
 Goicoechea v. Louisiana State Ins. Co., 18 Mar- 
 tin (La.), 51, 1272 
 Goit «. National Protection Ins. Co., 25 Barb., 
 189, 180, 901, 1068, 1220 
 Goix B. Knox, 1 Johns. C, 337, 1013 
 
 e. Low, 1 Johns. C, 341, 814 
 
 e. Low, 2 Johns. C, 480, 1376 
 
 Gtoldschmidt v. Whitmore, 3 Taunt, 608, 198 
 «. Lyon, 4 Taunt, 534, 534, 1290 
 
 Goldsmid «. Gillies, 4 Taunt, 803, 13 
 
 Goldstime v. Osborn, 2 C. & P., 550, 135 
 
 Goodall V. New England Mutual Fire Ins. Co., 
 
 35 N. H., 169, 68, 867 
 
 Gooden v. Amoskeag Fire Ins. Co., 20 N. H., 
 
 73, 773 
 
 Goodfellow V. Times & Beacon Ins. Co., 17 
 
 U. C. Q. B., 411, 354 
 
 Goodson D. Brooke, 4 Camp., 163, 1078 
 
 Gookin v. New England Mutual Ins. Co., 13 
 
 Gray, 506, 193 
 
 Goold v. Shaw, 1 Johns. C, 293, 8, 1421 
 
 v. United Ins. Co., 2 Caines, 73, 811 
 
 Goran v. Sweeting, 2 Saund., 205, 96S 
 
 Gordon v. Massachusetts Fire and Marine Ins. 
 Co., 3 Pick., 249, 
 
 9, 14, 713, 782, 785, 1398 
 
 V. American Ins. Co., 4 Denio, 360, 
 
 577 
 
 V. Bowne, 2 Johns., 150, 14, 1418 
 
 1. Morley, 2 Strange, 1265, 370 
 
 o. Remington, 1 Camp., 123, 1021 
 
 Goss o. Withers, 3 Burr., 683 ; 3 Ld. Kenyon, 
 
 325, 1410 
 
 Gottlieb D. Cranch, 4 DeG. M. & G., 440; 23 
 
 L. J. Ch., 913; 17 Jur., 704, 1349 
 
 Gottsman v. Insurance Co., 56 Penn. St, 210, 
 
 usr, 
 
 Gould fl. Citizens Ins. Co., 13 Mo., 534 783 
 c.Louisana Mut Ins. Co., 20 La. An., 
 
 259, 1503 
 v. York County Mutual Fire Ins. Co., 47 
 
 Me., 403, 133, 894, 1485 
 
 Goulstone v. Royal Ins. Co., 1 F. & F., 376, 
 
 553, 698 
 Gourdon v. Insurance Company of North 
 
 America, 3 Yeates, 337, 76, 165 
 
 1285 
 Gourock Rope Works Co. v. Flemming, 5 C. 
 
 0. 8. (3d ser.), 501, 448 
 
 (Jove «. Farmers Mutual Fire Ins. Co., 48 N. 
 
 H., 41 1158 
 
 Goyon c. Pleasants, 8 Wash. C. C, 241, 425 
 Gracie v. Bowne, 3 Caines, 30, 754 
 
 V. Marine Ins. Co., 8 Cranch, 75, 1039 
 
 V. New York Ins. Co., 8 Johns., 337, 
 
 1408 
 
 V. New York Ins. Co., 13 Johns., 161, 
 
 144 
 Grady v. American Central Ins. Co., 60 Mo., 
 
 116. 1081 
 
 Graff o. Simons, 58 111 , 440, 1057 
 
 Graham ii. Barras, 5 B. & Ad., 1011 ; 5 N. & 
 
 M., 125, 352, 1239 
 
 «. Commercial Ins. Co., 11 Johns., 353, 
 
 427 
 
TABLE OP CASES. 
 
 XXXI 
 
 Graham o. Firemans Ins. Ck>., 2 Disney, 255, 
 
 78 
 
 f>. Greneral Mut. Ins. Co., 6 La. An., 482, 
 
 242 
 
 V. Ledda, 17 La. An., 45, 30 
 
 e. Pennsylvania Ins. Co., 3 Wash. C. C, 
 
 113, 640, 731 
 
 c. Russell, 2 Marsh., 561, 1286 
 
 Grainger v. Martin, 2 B. & S., 456; 8 Jur. (N. 
 
 S.), 995 ; 31 L. J. Q. R, 186 ; 4 B. & S., 
 
 9 ; 11 W. R, 758 ; 8 L. T. (N. S.), 796, 
 
 1443 
 Granger o. Howard Ins. Co., 5 Wend., 200, 
 
 112 
 Grant v. ^tna Ins. Co., 15 Moore P. C. C, 516 ; 
 
 8 Jur. (N. S.), 705; 10 W. R, 772; 6 
 
 L. T. (N. S.), 73S. 1520 
 
 o. De La Cour, 1 Taunt., 468, 1041 
 
 V. Hill, 4 Taunt:. 380, 1349 
 
 1>. Howard Ins. Co., 5 Hill, 10, 122 
 
 V. King, 4 Esp., 175, 439 
 
 V. Lexington Ins. Co., 5 Ind., 23, 
 
 1050, 1241 
 V. Parkinson, 3 Doug., 16 ; 6 Term, 483 n. ; 
 
 3 B. & P., 85 n., 1475 
 
 e. Paxton, 1 Taunt, 467, 1041 
 
 V. Koyal Exchange Ass. Co., 5 Man & Sel., 
 
 439, 1292 
 
 Graves v. Boston Marine Ins. Co., 2 Cranch, 
 
 215, 994, 1175 
 
 e. Hampden Fire Ins. Co., 10 Allen, 281, 
 
 1341 
 
 c. Marine Ins. Co., 2 Caines, 339, 604 
 
 V. Niagara District Mut Ins. Co., 25 U. 
 
 C.Q.B., 127, 1144 
 c. Washington Marine Ins. Co., 12 Allen, 
 
 391, 1114, 1312, 1398 
 
 Gray e. Lloyd, 4 Taunt, 136, 644 
 
 V. Murray, 3 Johns. Ch., 167, 362, 1093 
 
 o. Sims, 3 Wash. C. C, 276, 641, 1226 
 
 V. Swan, 1 H. & J., 142, 1278 
 
 Great Falls Mutual Fire Ins. Oo. o. Harvey, 45 
 
 N. H., 292, 804 
 
 Great Indian Peninsula Railway Co. v. Saun- 
 ders, 1 B. & S., 41 ; 7 Jur. (N. S.>, 823 ; 
 
 30 L. J. Q. B., 218 ; 4 L. T. (N. S.), 240 ; 
 
 2 B. & 8., 266; 31 L. J. Q. B., 206; 9 
 
 Jur. (N. S.), 198; 10 W. R, 520; 6 L. 
 
 T. (N. S.), 297, 1504 
 
 Great Western Ins. Co. o. Staaden, 26 HI., 360, 
 
 113, 1117 
 Greely c. Tremont Ins. Oo^ 9 Cash, 415, 
 
 608,1439 
 Green v. Brown, 2 StrMge, 1109, 1064 
 V. Elmslie Peakes, N. P. C^ 378, 220 
 
 Green c. Merchants Ins. Co., 10 Pick., 402, 
 
 242, 256, 480 
 
 V. Pacific Mut. Ins. Co., 9 Allen, 217, 
 
 1410 
 V. Royal Exchange Ass. Co, 6 Taunt, 68 ; 
 
 1 Marsh., 447, 379, 590 
 
 c. Young, 2 Ld. Raym., 840, 447 
 
 Greenfield v. Massachusetts Mutual Life Ins. 
 
 Co., 47 N. T., 430, 66, 111, 975, 1483 
 Greenleaf e. St Louis Ins. Co., 37 Mo., 25, 
 
 1048 
 Green wald o. Insurance Co., 3 Phila., 333, 
 
 545 
 Greenwell o. Nicholson, 1 Jur., 285, 265 
 
 Gregory c. Christy, 3 Doug., 419, 1003 
 
 Gregson v. Gilbert, 3 Doug., 233, 1030 
 
 Grenier v. Monarch Ins. Co., 7 L. C. Jur., 100, 
 
 553 
 Grevemeyer o. Southern Mutual Fire Ins. Co., 
 
 62 Penn. St, 340, 99 
 
 Grey e. Swan, 1 H. & J., 143, 54 
 
 Griffith V. Insurance Co. of North America, 5 
 
 Binn., 464, 808 
 
 Grigg c. Scott, Holt N. P., 129; 4 Camp., 339, 
 
 643 
 Grim «. Phoenix Ins. Co., 13 Johns., 451, 1150 
 Griswold o. New York Ins. Co., 1 Johns., 205 ; 
 
 3 id., 321, 33, 576 
 
 V. Union Mut Ins. Co., 3 Blatch., 231, 
 
 1468 
 Groning e. Crockett, 3 Camp., 83, 631 
 
 Grosvenor v. Atlantic Fire Ins. Co., 17 N. Y., 
 
 391 ; 5 Duer, 517 ; 1 Bos., 469, 160 
 Grousset v. Sea Ins. Co., 24 Wend., 210, 202 
 Grubbs v. State of Indiana, 24 Ind., 295, 1323 
 Guardians of Carrick on Shannon s. Guarantee 
 
 Society, 2 Ir. C. L. R, 422, 284, 961 
 Guerlain v. Columbian Ins. Co., 7 Johns., 527, 
 
 1503 
 Guernsey e. American Ins. Co., 17 Minn., 104, 
 
 484, 1178 
 Guma «. Hope Ins. Co., 16 La. An., 415, 821 
 Gumey c. Rawlins, 6 L. J. (N. S.) Ex., 7; 3 
 
 Mee. & W., 87, 71 
 
 Guthrie o. Armstrong, 5 B. & .A., 628; 1 D. & 
 
 R, 248, 359 
 
 H. 
 
 Hackney v. Allegheny County Mut Ins. Co., 
 4 Penn. St, 185, 492, 1054 
 
 Haddow «. Parry, 3 Taunt, 303, 207 
 
 Hadkinson o. Robinson, 3 B. & P., 388, 1429 
 Hadley e. New Hampshire Fire Ins. Co., 55 
 N. H., 110, 61, 654, 869 
 
XXXll 
 
 TABI4E OF OASES. 
 
 Haff c. Marine Ins. Co., 4 Johns., 133; An- 
 thon's N. P., 33, 1143 
 
 V. Marine Ins. Co., 8 Johns., 164, 
 
 168, 1143 
 nagan o. Ocean Ins. Co., 10 Rob. (La.), 333, 
 
 1029 
 Hagar v. New England Mutual Marine Ins. 
 Co., 59 Me., 460, 1016, 1034, 1497 
 
 Hagedorn v. Bazett, 2 Mau. & Sel., 100, 
 
 640 
 
 0. Bell, 1 Mau. & Sel., 450, 634 
 
 B. Oliverson, 2 Mau. & Sel., 485, 684 
 
 ®. Keid, 1 Mau. & Sel., 567; 3 Camp., 377, 
 
 654 
 
 n. Whitmore, 1 Starkie, 157, 1030 
 
 Hahn®. Corbett, 2 Bing., 205; 9 Moore, 393; 
 
 3 L. J. C. P., 253, 1157 
 
 Haigh V. De La Conr, 3 Camp., 319, 552 
 
 Hale ». Mechanics Mut. Ins. Co., 6 Gray, 169, 
 
 160, 855 
 
 B. Mercantile Marine Ins. Co., 6 Pick., 
 
 173, 443 
 
 V. Union Mut. Fire Ins. Co., 33 N. H., 
 
 295, 157 
 
 v. Washington Ins. Co., 2 Story, 176, 
 
 337 
 
 Haley v. Dorchester Mutual Fire Ins. Co., 12 
 
 Gray, 545, 91, 824, 1007, 1491 
 
 B. Dorchester Mutual Fire Ins. Co., 1 
 
 Allen, 536, 834 
 
 Halford V. Kymer, 10 B. & C, 724; 8 L. J. K. 
 
 B., 311, 700 
 
 Halhead s. Young, 6 El. & Bl., 312; 3 Jur. 
 
 (N". S.), 970; 25 L. J. Q. B., 290, 
 
 990 
 Hall B. Brown, 2 Dow, 367, 1487 
 
 V. Dorchester Ins. Co., Ill Mass., 53, 
 
 169 
 
 ®. Franklin Ins. Co., 9 Pick., 466, 
 
 9, 428, 780, 1431 
 
 «. Insurance Co. of North America, 58 
 
 N. T., 293, 1313 
 
 V. Janson, 4 El. & Bl., 500 ; 1 Jur. (N. S.), 
 
 571; 34L. J. Q.B.,77, 1454 
 
 D. Molineux, 6 East, 385 n., 1293 
 
 ■». Ocean Ins. Co., 31 Pick., 472, 
 
 1015, 1439 
 
 v. People's Mutual Fire Ins. Co., 6 Gray, 
 
 185, 85, 1302, 1491 
 
 V. Railroad Companies, 18 Wall., 367, 
 
 231 
 
 0. Rising Sun Ins. Co., 1 Disney, 808, 
 
 1509 
 HaUet D. Columbian Ins. Co., 8 Johns., 272, 
 
 301 
 c. Jenks, 1 Caines Gas., 43, 806 
 
 Hallet n. Jenks, 3 Cranch, 310, 625 
 
 T. Peyton, 1 Caines Gas., 28, 5, 1420 
 
 V. Wigram, 9 C. B. 580; 19 L. J. C. P., 
 
 28i, 613 
 v. Dowdall, 21 L. J. Q. B., 98; 18 Q. B., 2; 
 
 16 Jur., 462, 368 
 
 v. Phcenix Ins. Co., 2 Wash. C. C, 279, 
 
 719 
 Hallock v. Commercial Ins. Co., 26 N. J., 268, 
 
 331 
 Halton D. Provincial Ins. Co., 7 U. C. C. P., 
 
 555, 80 
 
 Hambro ti. Hall and London Fire Ins. Co., 3 
 
 H. & N., 789 ; 28 L. J. Ex., 62, 359 
 Hamilton o. Baldwin, 15 Beav., 233, 305 
 <c. Crawford, Faculty Dec, 1781 to 1787, 
 
 p. 451, 1006. 
 '0. Lycoming Mut Ins. Co., 5 Penn. St., 
 
 339, 333 
 
 D. Mendes, 3 Burr., 1198 ; 1 W. Bl., 276, 
 
 1428 
 
 V. Montreal Ins. Co., 23 U. C. Q. B., 437, 
 
 1145 
 
 ■». Mutual Life Ins. Co., 9 Blatch., 234, 
 
 904 
 
 V. Phoenix Ins. Co., 106 Mass., 395, 140 
 
 v. Sheddon, 8 Mee. «& W., 49; 7 L. J. (N. 
 
 S.), Ex. 1, 419 
 
 Hamilton MuL Ins. Co. «. Hobart, 2 Gray, 543, 
 
 1052 
 Hammond n. American Mutual Life Ins. Co., 
 
 10 Gray, 306, 914 
 
 B. Reid, 4 B. & A., 73, 414 
 
 Hanan v. Louisiana Mut. Ins. Co., 15 La. An., 
 
 301, 1433 
 
 Hancock v. Franklin Ins. Co., 107 Mass., 113, 
 
 400 
 
 v. Macnamara, 2 Irish Eq., 486, 736 
 
 Hancox v. Fishing Ins. Co., 3 Smnn., 183, 
 
 1415, 1449 
 Hand v. Williamsburg City Fire Ins. Co., 57 
 
 N. T., 41, 690, 863 
 
 Hanover Ins. Co. c. Mannasson, 29 Mich., 816, 
 
 553 
 Hanse v. New Orleans Marine and Fire Ins. 
 
 Co., 10 La. (O. S.), 1, 58, 604, 733 
 
 Hardie v. St. Louis Mutual Life Ins. Co., 36 
 
 La. An., 342, 335 
 Hardy -o. Innes, 6 Moore, 567, 140 
 e. Union Mutual Fire Ins. Co., 4 Allen 
 
 217. 866 
 Hare v. Barstow, 8 Jur., 928, 1005, 1453 
 V. Travis, 7 B. & C, 14; 9 D. & R., 748; 
 
 5 L. J. K B., 348, 435 
 
 Harkins s. Quincy Mutual Fire Ins. Co., 16 
 
 Gray, 591, ugg 
 
TABLE OF CASES. 
 
 XXXlll 
 
 Harman v. Vanhatton, 3 Vern., 717," 
 
 273, 1357 
 
 V. Kingston, 3 Camp., 150, 1467 
 
 V. Vaux, 3 Camp., 429, 1323 
 
 Hannony Fire and Marine Ins. Co. v. Hazle- 
 
 liurst, 30 Md., 380, 1087 
 
 Harper v. Albany Mut. Ins. Co., 17 N. T., 194, 
 
 1212 
 
 «. New Tork City Ins. Co., 23 N. T., 441 ; 
 
 1 Bos., 520, 1311, 1212 
 
 0. Phoenix Life Ins. Co., 18 Mo., 109, 
 
 816 
 
 V. Phoenix Life Ins. Co., 19 Mo., 506, 
 
 394 
 
 Harratt v. Wise, 9 B. & C, 713; 4 M. & R., 
 
 531 ; 7 L. J. K. B., 309, 310 
 
 Harris «. Columbiana County Mut. Ins. Co., 
 
 18 Ohio, 116, 738 
 
 c. Columbiana Mut. Ins. Co., 4 Ohio St, 
 
 285, 658 
 
 «. Eagle Fire Ins. Co., 5 Johns., 368, 
 
 389, 1463 
 
 V. Equitable Life Ass. Soc, 3 Hun. (N. 
 
 T.), 734; 6 K. Y. S. C, 108; 13 Alb. 
 L. J., 348, 933, 1324 
 
 B. Gaspee Fire and Marine Ins. Co., 9 R. 
 
 I., 307, 269, 1329 
 
 B. Mercantile Ins. Co., 17 How. Pr., 188, 
 
 103 
 
 V. Ohio Ins. Co., 5 Ohio, 466; Wright, 
 
 544, 857 
 
 V. Phoenix Ins. Co., 35 Conn., 310, 
 
 543, 762 
 
 V. Protection Ins. Co., Wright, 548, 
 
 385, 733 
 
 V. Scaramanga, 7 L. R. C. P., 481 ; 41 L. 
 
 J. C. P., 170; 30 W. R., 777; 26 L. T. 
 (N. S.), 797, 620 
 
 V. York Mut. Ins. Co., 50 Penn. St., 341, 
 
 692, 729 
 
 Harrison v. Bank of Australasia, 7 L. R. Ex., 
 
 39 ; 41 L. J. Ex., 36 ; 20 W. R., 385 ; 25 
 
 L. T. (N. S.), 944, 610 
 
 V. City Fire Ins. Co., 9 Allen, 331, 835 
 
 v. Douglas, 3 A. & E., 396; 6 N. & M., 
 
 180, 269, 899 
 
 e. Ellis, 7 El. & Bl., 465; 3 Jur. (N. S.), 
 
 908; 36 L. J. Q. B., 339, 990 
 
 V. Universal Marine Ins. Co., 3 F. & F., 
 
 190, 1023 
 
 narrower v. Hutchinson, 5 L. R. Q. B., 584; 39 
 L. J. Q. B., 339; 33 L. T. (N. S.), 684; 
 10 B. & 8., 469 ; 4 L. R. Q. B., 533, 
 
 243 
 Hart «. Delaware Ins. Co., 2 Wash. C. C, 346, 
 
 585, 1421, 1468 
 C 
 
 Hart B. Western Railroad Co., 13 Met., 99, 
 
 1338, 1348 
 Hartford Fire Ins. Co. v. Ross, 33Ind., 179, 
 
 1390 
 
 •». Van Duzor, 49 111., 489, 
 
 206, 821, 1481 
 
 B. Walsh, 54 111., 164, 
 
 826, 1387, 1483 
 
 s. Webster, 69 111., 392, 494 
 
 B. Wilcox, 57 111., 180, 888 
 
 Hartford Ins. Co. b. Farrish, 5 Ins. L. J., 46, 
 
 823, 1073 
 
 B. Hadden, 28 111., 260, 117, 720 
 
 Hartford Live Stock Ins. Co. b. Matthews, 103 
 
 Mass., 231, 1318, 1391 
 
 Hartford Protection Ins. Co. b. Harmer, 2 Ohio 
 
 St., 453, 365, 379, 468, 694, 1115, 1199, 
 
 1453, 1525 
 
 Hartley b. Buggin, 3 Doug., 39, 417 
 
 Hartman b. Keystone Ins. Co., 21 Penn. St., 
 
 466, 248, 528, 1361 
 
 Hartshorn b. Shoe & Leather Dealers Ins. Co., 
 
 15 Gray, 240, 341 
 
 Hartshorne b. Union Mut. Ins. Co., 36 N. Y., 
 
 173; 5 Bos., 538, 65,315 
 
 Harvey b. Beckwith, 13 W. R., 819, 896; 10 L. 
 
 T. (N. S.), 633, 739, 1103 
 
 Hashagan b. Manlove, 42 Ind., 330, 958 
 
 Haskell b. Monmouth Fire Ins. Co., 53 Me., 
 
 138, 169 
 
 Haskins b. Hamilton Mut. Ins. Co., 5 Gray, 
 
 433, 824, 973, 1160 
 
 Hastie B. DePeyster, 3 Caines, 190, 6., 1186 
 Hathaway v. Sun Mut. Ins. Co., 8 Bos., 33, 
 
 618, 1365 
 B. Trenton Mutual Life & Fire Ins. Co., 
 
 11 Cush., 448, 1365 
 
 Hathorn b. Germania Ins. Co., 55 Barb., 38, 
 
 1320 
 Hatton B. Beacon Ins. Co., 16 U. C. Q. B., 316, 
 
 861 
 
 B. Provincial Ins. Co., 7 U. C. C. P., 555 
 
 80 
 Haughton b. Empire Mut. Ins. Co., 1 L. R. 
 
 Ex., 206 ; 4 H. & C, 41 ; 12 Jur. (N. S.), 
 
 376 ; 35 L. J. Ex., 117 ; 14 W. R., 645 ; 
 
 15 L. T. (N. 8.), 80, 984 
 
 B. Etvbank, 4 Camp. 88, 953, 1077 
 
 Haverhill Fire Ins. Co. b. Presoolt, 42 N. H., 
 
 547, 1316 
 
 Havelock v. Hancill, 3 Term, 277, 199 
 
 B. Rockwood, 8 Term, 268, 1038 
 
 Haven b. Gray, 12 Mason, 71, 1007 
 
 B. Holland, 3 Mass., 230, 440 
 
 Hawes b. New England Mutual Marine Ins. 
 
 Co., 3 Curtis, 239, 533 
 
XXXIV 
 
 TABLE OF CAbES. 
 
 Hawkes v Dodge Co. Mnt. Ins. Co., 11 Wis., 
 
 188, 675, 830 
 
 Hawkins v. Coulthurst, 13 W. R, 835, 391 
 
 V. Woodgate, 7 Beav., 565, 128 
 
 Hawortli v. Britisli American Ass. Co., 6 V. C. 
 C. P., 60, 817 
 
 Haymau «. Parish, 3 Camp., 149, 115, 118 
 
 Hayuer v. American Popular Life Ins. Co., 3 
 J. &Sp., 366; 4 id., 311, 918 
 
 Hayward v. Blake, 12 Mass., 177, 808 
 
 V. Cain, 105 Mass., 213, 1342 
 
 1!. Liverpool & London Ins. Co., 42* N. 
 
 Y. (3 Keyes), 456 ; 2 Abb. Dec. 349 ; 7 
 Bos., 385; 5 Abb. Pr. (N. 8.), 143, 
 
 547 
 
 «. National Ins. Co., 52 Mo., 181, 873 
 
 V. New England Mutual Fire Ins. Co., 10 
 
 Cush., 444, 666 
 
 Haywood •». Rodgers, 4 Bast, 590; 1 Smith, 
 298, 254 
 
 Hazard e. Franklin Mut. Ins. Co.. 7 R. I., 429, 
 
 99, 475 
 
 V. New England Marine Ins. Co., 8 Pet., 
 
 557;lSumn., 218, 1024,1201 
 
 Headi). Providence Ins. Co., 3 Cranch, 127, 
 
 1060, 1318, 1446 
 Heald v. Builders Mut. Ins. Co., Ill Mass., 38 
 
 702 
 Healey v. Imperial Fire Ins. Co., 5 Nev., 368, 
 
 860 
 Heard v. Holman, 18 W. R., 745 ; 11 Jur., (N. 
 S.), 544 ; 13 L. T. (N. S.), 455, 338 
 
 Hearing, Succession of, 36 La. An., 836, 
 
 1531 
 
 Hearne ■». Edmunds, 1 B. & B., 388 ; 4 Moore, 
 
 15, 1336 
 
 v. Marine Ins. Co., 30 Wall., 489, 
 
 406, 1451 
 Heath «. Franklin Ins. Co., 1 Cush., 357, 
 
 403, 1113 
 
 Heaton «. Manhattan Fire Ins. Co., 7 R. I., 
 
 503, 108, 916 
 
 Hebdon «. West, 3 B. & S., 579; 9 Jur. (N. S.), 
 
 749 ; 33 L. J. C. B., 85 ; 11 W. R., 423 ; 
 
 9 L. T. (N. S.), 854, 700 
 
 HeadburgB. Pearson, 7 Taunt., 154; Holt N. 
 
 P., 349 ; 2 Marsh., 433, 1503 
 
 Hedley v. Nashville Ins. Co., 6 Rich., 130, 
 
 7,35 
 Heebner v. Eagle Ins. Co., 10 Gray, 131, 
 
 3, 755, 843, 848, 1497 
 
 Heiman n. Phoenix Mutual Life Ins. Co., 17 
 
 Minn., 153, 350 
 
 Heller «. Crawford, 37 Ind., 379, 364, 512, 978 
 
 Helme v. Philadelphia Life Ins. Co., 61 Penn. 
 
 St., 107, 916 
 
 Hemmenway v. Bradford, 14 Mass., 121, 901 
 
 V. Eaton, 13 Mass., 108, 1436 
 
 Henchman v. Offley, 3 Doug., 135; 2 H. BL, 
 
 345, n., 385, 1393 
 
 Henderson v. Felters, Faculty Dec. 1810 to 
 
 1813, p. 518, 533 
 V. Lothian, Faculty Dec. 1796 to 1801, p. 
 
 438, 1281 
 V. Western Marine & Fire Ins. Co., 10 
 
 Rob. (La,), 164, 518, 547, 1153 
 
 Hendricks v. Australasian Ins. Co., 9 L. R. C. 
 
 P., 46'); 43 L. J. C. P., 188; 30 L. T. 
 
 (N. S.), 419 ; 33 W. R., 947, 630 
 
 V. Commercial Ins. Co., 8 Johns., 1, 1331 
 
 Heneker o. British American Aas. Co., 13 IT. 
 
 C. C. P., 99, 660, 971 
 V. British American Ass. Co., 14 IT. C. C. 
 
 P., 57, 653, 660 
 
 Hening v. United States Ins. Co., 3 Dil. Cir. 
 
 C, 36, 754, 883, 887, 1004 
 
 Hennessy, Ex parte, 1 Con. & Law., 559 ; 3 Dr. 
 
 & War., 555 ; 5 Irish Eq., 359, 176 
 Henning v. United States Ins. Co., 47 Mo., 435, 
 
 113 
 Henrickson v. Margetson, 3 East, 544, n., 
 
 1099 
 Henry v. Agricultural Ins. Co., 11 Grant's Oh., 
 
 135, 354 
 
 ■». Staniforth, 4 Camp., 270, 645, 1280 
 
 Henry Ewbank, The Ship, 1 Sumn., 400, 425 
 Henshaw v. Marine Ins. Co., 3 Caines, 374, 
 
 390, 1034, 1487 
 
 V. Mutual Safety Ins. Co., 2 Blatch., 99 
 
 561, 949 
 Henson v. Blackwell, 4 Hare, 434; 14 L.J 
 
 Ch., 339, 1351 
 
 Hentig v. Staniforth, 5 Mau. & Sel., 132, 
 
 648, 1330 
 Henty v. Staniforth, 1 Starkie, 354, 643, 1339 
 Herbert v. Champion, 1 Camp., 134, 89 
 
 V. Hallet, 3 Johns. C, 93, 577 
 
 Herckenrath v. American Mut. Ins. Co., 3 
 
 Barb. Cli., 63, 758 
 
 Hercules Ins. Co. ■». Hunter, 14 C. C. S., 147, 
 
 ]43 
 
 V. Hunter, 14 C. C. 8., 1137, 384, 534, 541 
 
 •». Hunter, 15 C. C. S., '800, 553 
 
 Herkimer County Mut. Ins. Co. v. Puller, 14 
 
 Barb., 373; 7 How. Pr., 310, 154 
 
 Herman v. Western Marine and Fire Ins. Co., 
 
 18 La. (O. S.), 516, 423 
 
 Hernandez v. New York Mut. Ins. Co., 6 
 
 Blatch., 336, 1501 
 
 ■B. Sun Mut. Ins. Co., 6 id., 817, 1309 
 
 Herrick v. Union Mutual Fire Ins. Co., 48 Me., 
 
 558, 828 
 
TABLE OF CASES. 
 
 XXXV 
 
 HciTon «. Peoria Marine and Fire Ins. Co., 28 
 
 111., 235, 833, 847, 1241 
 
 HerecyD.AIerrimack County Mutual Fire Ins. 
 
 Co., 37 N. H., 149, 481 
 
 Ilcrvey v. Mutual Fire Ins. Co., 11 U. C. C. P., 
 
 304, 654 
 
 Ilcselton V. Allnutt, 1 Mau. & Sel., 46, 435 
 Hestcrberg v. Equitable Life Ins. Co., 1 Cin. 
 
 Sup. Ct., 483, 1285 
 
 Heyliger v. New York Piremens Ins. Co., 11 
 
 Johns., 85, 607 
 
 Hibbert v. Martin, 1 Camp., 538, 1331 
 
 V. Carter, 1 Terra., 745, 697, 805 
 
 B. Halliday, 3 Taunt., 438, 420 
 
 «. Pigou, 3 Doug., 234, 371 
 
 nibernia Ins. Co. r>. O'Connor, 29 Mich., 341, 
 
 « 116, 372, 1124 
 
 Hickey e. Anchor Ins. Co., 18 TJ. C. Q. B., 
 
 433, 761 
 
 Ilickie V. Rodocanachi, 4 H. & K., 455 ; 5 Jur. 
 
 (N. S.)550; 28 L.J. Ex., 273; 7W.ll., 
 
 545, 603 
 
 Hickman v. Long Island Ins. Co., Edm. S. C. 
 
 (N. Y.), 374, 554 
 
 Hicks 0. Fitzsimmons, 1 "Wash. C. C, 279, 
 
 1034 
 
 Hidden v. Slater Mutual Fire Ins. Co., 3 Cliff., 
 
 2G6, 707 
 
 Hide V. Bruce, 3 Doug., 213, 1526 
 
 Higbie o. Guardian Mutual Life Ins. Co., 53 
 
 N. Y., 603, 531, 536, 796, 1303 
 Higgins V. Livermore, 14 Mass., 106, 1515 
 V. Siirgcnt, 3 B. & C, 348; 3 D. & R., 
 
 613, 730 
 
 HigginsMi ». Ball, 13 Mass., 06, 9, 400, 712 
 
 V. Gray, 8 Mass., 385, 300 
 
 V. Pomeroy, 11 Mass., 104, ■ 206 
 
 Hill V. Cumberland Valley Mutual Protection 
 
 Co., 59 Penn. St., 474, 106 
 
 ■». La Fayette Ins. Co., 3 Mich., 476, 249 
 
 V. Patten, 8 East, 373; 1 Camp., 72, 1313 
 
 ®. Reed, 16 Barb., 280, 398 
 
 V. Secretan, 1 B. & P., 315, 695 
 
 Ilillier n. Allegheny County Mutual Ins. Co., 
 
 3 Penn. St., 470, 1194, 1289 
 
 Hills V. London A^s. Cor., 5 Mee & W., 569; 
 
 9 L. J. (N. S.) Ex., 35, 613 
 
 Ilillvard v. Mutual Benefit Life Ins. Co., 35 N. 
 
 J., 415, 67, 905 
 
 Hiniely r. South Carolina Ins. Co., 1 Mills 
 
 Const. Kep., 153, 337 
 
 ®. Stewart, 1 Brev., 209, 1147 
 
 Hincku. Home Ins. Co., 19 La. An., 537, 
 
 1473 
 
 Uincken v. Mutual Benefit Life Ins. Co., 50 N. 
 
 Y., 657, 1120 
 
 Hinckley b. Walton, 3 Taunt., 131, 644 
 
 Himnan v. Hartford Fire Ins. Co., 36 Wis., 
 
 159, 1377, 1486 
 
 Hitchcock ®, Northwestern Ins. Co., 36 N. Y., 
 
 68, 173 
 
 Hoarc v. Bremridge, 8 L. 11. Ch., 32; 43 L. J. 
 
 Ch., 1 ; 37 L. T. (N. S.), 593, 743 
 Hobart v. Norton, 8 Pick., 150, 437, 1487 
 Hobbs V. Hannam,3 Camp., 93, 302, 1348 
 B. Henning, 17 C. B. (N. S.), 701 ; 11 Jur. 
 
 (N. S.), 233; 34 L.J. C. P., 117; 13 W. 
 
 R., 431 ; 13 L. T. (N. S.), 305, 636 
 
 B. Manhattan Ins. Co., 50 Me., 417, 
 
 1189 
 
 B. Memjihis Ins. Co., 1 Sneed, 444, 
 
 63,1390 
 Hobby B. Dana, 17 Barb., Ill, 655 
 
 Hobsou ». Wellington Fire Ins. Co., 6 U. C. Q. 
 
 B., 356, 1459 
 
 B. Western Ass. Co., 19 U. C. Q. B., 314, 
 
 1126 
 Hodgkins b. Montgomery County Mut. Ins. 
 
 Co., 34 Barb.,. 313, 461, 1110 
 
 Hodgson B. Glover, 6 East, 316, 1098 
 
 B. Malcolm, 5 B. & P., 336, 1031 
 
 B. Marine Ins. Co., 5 Cranch, 100, 
 
 308, 561, 706, 901, 963 
 B. Mississippi Ins. Co., 3 La. (O. S.), 
 
 341, 589 
 
 B. Richardson, 1 W. Bl., 463, 353 
 
 Hodsdon b. Guardian Life Ins. Co., 97 Mass., 
 
 144, 914 
 
 Hodson B. Observer Life Ass. Soc.j 8 El. & Bl., 
 
 40 ; 3 Jur. (N. S.), 1135 ; 26 L. J. Q. B., 
 
 303, 1463 
 
 B. Richardson, 3 Burr., 1477, 301 
 
 Hoffman b. ..Etna Ins. Co., 33 N". Y., 405 ; 1 
 
 Rob., 501; ]9 Abb. Pr., 335, 
 
 103, 1139 
 
 B. Banks, 41 Ind., 1, 1317 
 
 0. Marshall, 2 Bing. (N. C), 383; 5 L. J. 
 
 (I<.S.)C.P.,70, 1337 
 B. Western Marine and Fire Ins. Co., 1 
 
 La. An., 316, 
 
 149, 384, 518, 557, 850, 1163 
 Hogan B. Delaware Ins. Co., 1 Wash. C. C, 
 
 419, 488 
 
 Hogle B. Guardian Life Ins. Co., 4 Abb. Pr. 
 
 (N. S.), 346; 6 Rob. (N. Y.), 567, 
 
 60, 819 
 Holabird v. Insurance Co., 3 Dil. Cir. C, 166, n., 
 
 845, 1533 
 Holbrook b. American Fire Ins. Co., 1 Curtis 
 
 C. C, 193, 103, 853 
 
 B. American Ins. Co., 6 Paige, 320, 
 
 1384 
 
 \ 
 
XXXVl 
 
 TABLE OF CASES. 
 
 Holdsworth ®. Wise, 7 B. & C.,794; 1 M. ifc 
 R., 673 ; 6 L. J. K B., 134, 1369, 1417 
 Holland ■b. Russell, 1 B. & S., 434; 30 L. J. Q. 
 B., 308; 7 Jur. (N. S.), 843; 4 L. T. 
 (N. S.), 547; 4 B. & S., 14; 33 L. J. Q. 
 B., 297 ; 11 W. R., 757 ; 8 L. T. (N. S.), 
 468, • 1395 
 
 V. Smith, 6 Esp., 11, 1333 
 
 Hollingwortli «. Broderick, 7 A. & B., 40; 1 
 Jur., 430; 8 L. J. (N. S.) Q. B., 80; 3 
 N. & P., 608, 1234, 1269 
 
 V. Broderick, 4 A. & B., 646; 6 N. & M., 
 
 240, 377 
 
 Hollingsworth v. Germania Fire Ins. Co., 45 
 Ga., 294, 1323 
 
 Holloman v. Life Ins. Co., 1 Woods, 674, 
 
 454, 801, 845, 1301 
 
 Holmes v. Charlestown Mutual Fire Ins. Co., 
 
 10 Met., 211, 1470 
 
 ■». United Ins. Co., 2 Johns. C, 339, 
 
 894, 1237 
 Holtzman v. Franklin Ins. Co., 4 Cranch C. C, 
 395, 1193 
 
 Home Ins. Co. ■». Cohen, 20 Grattan, 813, 
 
 1118 
 
 V. Curtis, 5 Ins. L. J., 120; 33 Mich., 403, 
 
 359, 976, 1193, 1233 
 
 ■». Davis, 39 Mich., 238, 1193 
 
 V. Duke, 43 Ind., 418, 958 
 
 «. Favorite, 46 111., 263, 309, 736, 978 
 
 V. Heck, 65 111. Ill, 
 
 306, 691, 1233, 1324 
 
 V. Northwestern Packet Co., 32 Iowa., 233 
 
 745, 1313, 1330 
 
 V. Stanchfield, 3 Abb. Cir. C, 1 ; 1 Dil. Cir. 
 
 C, 434, 740 
 
 i). Western Transportation Co., 51 N. Y., 
 
 93; 4 Rob., 257; 33 How. Pr.,103, 
 
 231 
 Home Life Ins. Co. v. Pierce, 5 Ins. L. J., 290, 
 
 934, 1061, 1074 
 
 Home Mutual Fire Ins. Co. b. Garfield, 60 111., 
 
 134, 398, 467, 1160 
 
 V. Hauslein, 60 111., 531, 163, 1390 
 
 Homer v. Dorr, 10 Mass., 36, 490 
 
 Hone V. Mutual Safety Ins. Co., 1 Sandf., 137 ; 
 2N.T.,335, 1184,1451 
 
 Honnick v. Phoenix Ins. Co., 33 Mo., 83, 301 
 Honore v. Lamar Fire Ins. Co., 51 111., 409, 
 
 1339 
 
 Hood V. Manhattan Fire Ins. Co., 11 N. Y., 532 ; 
 
 3 Duer., 191, 399 
 
 V. Nesbitt, 1 Yeates, 114; 3 Dall., 137, 
 
 419 
 
 V. Poughkeepsie Ins. Co., 83 N. Y., 619, 
 
 337 
 
 Hooper v. Accidental Death Ins. Co., 5 H. & 
 K, 557; 7 Jur. (N. S.), 73; 39 L. J. 
 Ex., 484; 5 H. & N., 546; 29 L. J. 
 Ex., 340; 8 W. R., 616, 47 
 
 D. Hudson River Fire Ins. Co., 17 K. Y., 
 
 434; 15 Barb., 413, 58 
 
 V. Lusby, 4 Camp., 66, 1095 
 
 Hope Ins. Co. «. Lonergan, 48 111., 49, 831 
 Hope Mut. Ins. Co. ■». Brolaskey, 35 Penn. St., 
 283, 1374 
 
 Hore V. Whitmore, Cowper, 784, 1238 
 
 Horn B. Amicable Mutual Life Ins. Co., 64 
 Barb., 81, 1303, 1306 
 
 «. Anglo Australian Life Ins. Co., 30 L. 
 
 J. Ch., 511; 7 Jur. (N. 8), 673; 9 W. 
 
 R., 359 ; 4 L. T. (N. S.), 143, 1359 
 
 Horncastle v. Suart, 7 East, 399, 593 
 
 Horneyer v. Lushington, 15 East, 46; 3 Camp., 
 
 85, 648,989,1230 
 
 Horwitz ®. Equitable Mut. Ins. Co., 40 Mo., 
 
 557, 874 
 
 Hosack V. Rogers, 6 Paige Ch., 415, 30 
 
 Hoskins v. Pickersgill, 3 Doug., 222, 
 
 817 
 
 Hotchkiss V. Commercial Mut. Ins. Co., 1 
 
 Rob. (N. Y.), 489, 1500 
 
 ®. Germania Fire Ins. Co., 5 Hun.(N. Y.), 
 
 90, 123, 533. 1069 
 
 Hough V. City Fire Ins. Co., 29 Conn., 10, 
 
 505, 838, 1070, 1379 
 
 V. People's Fire Ins. Co., 86 Md., 398, 
 
 453 
 
 Houghton v. Manufacturers Ins. Co., 8 Met., 
 
 114, 307 
 
 Houghton & Gribble, Ex parte, 17 Ves. Jun., 
 
 251. 699 
 
 Houstman ». Thornton, Holt JS". P., 242 
 
 „ ' ' 1419 
 
 Houston ». New England Ins. Cf ., 5 Pick., 89 ; 
 
 443, 480 
 
 Houstoun v. Robertson, Holt N. P., 88- 3 
 
 Marsh., 138; 6 Taunt, 448 ; 4 Camp., 
 
 ^*^' 1290 
 
 ». Bordenave, 6 Taunt., 451; 2 Marsh., 
 
 „ ^f^' 1290 
 
 Hovey n. American Mut. Ins. Co., 2 Duer., 554, 
 
 XT *n , o . 490,834,978 
 
 How ». Allen, 1 Sandf., 171, io54 
 
 Howes B. Union Ins. Co., 16 La. An., 235, 
 
 1465 
 Howard, Sir Robert's Case, Holt K. B., 195 
 
 1373 
 Howard v. Albany Ins. Co., 3 Denio, 801, 
 
 1388 
 V. Aster Mut. Ins. Co., 5 Bos. 38 
 
 1036 
 
TABLE OF CASES. 
 
 xxxvii 
 
 Howard v. City Fire Ins. Co., 4 Denio, 502, 
 
 479, 540, 1141 
 
 V. Continental Life Ins. Co., 48 Cal., 229, 
 
 941 
 
 D. Franlilin Marine and Fire Ins. Co., 9 
 
 How. Pr., 45, 1208 
 
 ■». Great Western Ins Co., 109 Mass., 384, 
 
 880 
 
 V. Kentucky and Louisville Mut. Ins. Co., 
 
 13 B. Mon., 282, 87 
 
 V. Orient Mut. Ins. Co., 2 Rob. (N. Y.), 
 
 539, 1265, 1292 
 
 Howard Fire Ins. Co. v. Bruner, 23 Penn. St., 
 
 50, 462, 506 
 
 Howard Fire and Marine Ins. Co. •». Cormicli, 
 
 24 111., 455, 467, 1241, 1483 
 
 Howard Ins. Co. v. Scribner, 5 Hill., 298, 450 
 
 Howell V. Baltimore Equitable Soc, 16 Md, , 
 
 377, 658 
 
 V. Cincinnati Ins. Co., 7 Ohio, 1st pt., 376, 
 
 1150 
 
 D. Knickerbocker Life Ins. Co., 44 N. Y., 
 
 276; 3 Rob., 233; 19 Abb. Pr.,317. 
 
 355,911 
 
 V. Protection Ins. Co., 7 Ohio, 1st pt., 284, 
 
 1037 
 
 Howes V. Union Ins. Co., 16 La. An., 335, 
 
 1465 
 
 Hoxie o. Home Ins. Co., 33 Conn., 21 , 481 , 535 
 
 o. Home Ins. Co., 33 Conn., 471, 142, 517 
 
 V. Pacific Mut. Ins. Co., 7 Allen, 211, 
 
 1243 
 
 Hoxsie V. Providence Mutual Fire Ins. Co., 6 
 
 R. L,517, 99,1456,1472 
 Hoyt V. Gilman, 8 Mass., 335, 243, 819, 1232 
 B. Mutual Benefit Life Ins. Co., 98 Mass., 
 
 539, 341 
 
 V. New York Life Ins. Co., 3 Bos., 440, 
 
 634 
 
 Hubbard ». Glover, 8 Camp., 313, 1200 
 
 V. Hartford Fire Ins. Co., 33 Iowa, 325, 
 
 40,328 
 
 V. Jackson, 4 Taunt, 169, 1314 
 
 Huchberger «. Home Ins. Co., 5 Biss., 106, 
 
 81,554 
 
 V. Merchants Fire Ins. Co., 4 Biss., 265 , 
 
 148,554 
 
 Huckins v. People's Mutual Fire Ins. Co., 31 
 
 N. H., 238, 538. 543, 1010, 1148, 1466 
 
 Huckman v. Fernie, 3 Mee. & "W., 505; 7 L. 
 
 J. (N. S.) Ex., 163; 2 Jur.,444, 
 
 793, 1310 
 
 Hucks V. Thornton, Holt N. P., 80 , 197, 1353 
 
 Hudson «. Guestier, 6 Cranch, 281, 753 
 
 v. Harrison, 3 B. & B., 97; 3 Moore. 388, 
 
 20 
 
 Hudson V. Williamson, 3 Brev., 342, 1359 
 
 Hugg V. Augusta Insurance & Banking Co., 
 
 7 How., 595 ; Tan. Dec, 159, 390, 585 
 Hughes 0. Mercantile Mut. Ins. Co., 10 Abb. 
 
 Pr. (N. S.), 37; 41 How. Pr., 353, 
 
 129 
 ■». Mercantile Mut. Ins. Co., 55 N. Y., 265 ; 
 
 44 How. Pr., 351, 338 
 
 V. Tindall, 18 C. B , 98, 475 
 
 «. Union Ins. Co., 3 Wheat., 159, 439 
 
 V. Union Ins. Co., 8 Wheat., 294, 
 
 48, 594 
 Huguenin v. Rayley, 6 Taunt., 186, 363 
 
 Hull V. Cooper, 14 East, 479, 446 
 
 HuUman «. Whitmore, 3 Mau., & Sel., 337, 
 
 633 
 Humphrey v. Arabin, L & G. temp. Plunk., 
 
 318, 1354 
 
 Humphreys v. Union Ins. Co , 3 Mason, 429, 
 
 18, 843, 1501 
 Hunt V. Hudson River Ins. Co., 2 Duer, 481, 
 
 950 
 ■». Royal Exchange Ass. Co., 5 Mau & 
 
 Sel., 47, 22, 1429, 1430 
 
 V. Simonds, 19 Mo., 583, 5ft 
 
 Hunter ». General Mut. Ins. Co., 11 La. An.', 
 
 139, 616 
 
 V. Potts, 4 Camp., 203, 1030 
 
 V. Wright, 10 B. & C, 714; 8 L. J. K. B., 
 
 259, 1234 
 
 Huntley s. Merrill, 33 Barb., 626, 1318 
 
 Hurlbert v. Pacific Ins. Co., 2 Sumn., 471, 
 
 1283 
 Hurry v Royal Exchange Ass. Co., 3 B. & P , 
 
 430; 3Esp., 389, 1042 
 V. Royal Exchange Ass. Co., 3 B. & P., 
 
 308, 893 
 
 Hurten v. Phoenix Ins. Co., 1 Wash. C C. 
 
 400, 15, 1405 
 
 Hutchins v. Cleveland Mut. Ins. Co., 11 Ohio 
 
 St., 477, 671 
 
 Hutchinson v. National Loan Ass. Soc, 7 C. C. 
 
 S., 467; 17 Scot. Jur., 353, 134 
 
 V. Read, 4 Exch., 761 ; 19 L. J. Ex., 322, 
 
 960 
 
 1). Western Ins. Co., 21 Mo., 97, 873 
 
 V. Wright, 25 Beav., 444; 4 Jur. (N. S.), 
 
 749; 27 L. J. Ch., 834;, 111, 676 
 
 Huth ®. New York Mut. Ins. Co , 8 Bos., 538, 
 
 571 
 Hutton V. American Ins. Co., 7 Hill, 321 ; 24 
 
 Wend., 380, 191 
 
 V. Waterloo Life Ins. Co., 1 F. & F., 735, 
 
 795 
 Hyde v. Goodnow, 3 N. Y., 266, 755, 1318 
 
 1). Insurance Co., 3 Dil. Cir. C, 525, 
 
 1192 
 
XXXVlll 
 
 TABLE OF CASES. 
 
 Hyde v. Louisiana State Ins. Co., 14 Martin 
 (La)," 410, 7,^1,1028 
 
 1. Lynde, 4 N. T., 387, 1051 
 
 ■». Mississippi Marine & Fire Ins. Co., 10 
 
 La. (O. a.)), 543, 335 
 
 Hygum -0. MX112. Ins. Co., 11 Iowa, 21, 860 
 Hynds t. Mchenectady County Mut. Ins. Co., 
 UN. T., 554; 16 Bart., 119, 
 
 750, 1113, 1128 
 
 I. 
 
 Ide s. Phoenix Ins. Co., 2 Biss., 333, 
 
 882, 1066 
 Idle "0. Royal Exchange Ass. Co., 8 Taunt., 
 755; 3 Moore, 115, 590, 604 
 
 Illinois Central Ins. Co. t. "Wolf, 37 111., 354, 
 
 903 
 Illinois Fire Ins. Co. d. Stanton, 57 111., 354, 
 
 69, 805, 965, 1073 
 
 Illinois Mutual Fire Ins. Co. v. Andes Ins. 
 
 Co., 67 111., 362. 1186 
 
 c. Fix, 53 111, 151, 162 
 
 0. Marseilles Manufacturing Co., 6 111., 
 
 236, 309, 718, 964. 974, 1374, 1391 
 
 u. O'Neil, 18 111 , 89. 494, 873 
 
 Illinois Mut. Ins. Co. -o. Malloy, 50 111., 419, 
 
 859 
 
 Imperial Fire Ins. Co. v. Murray, 73 Penn. St., 
 
 13, 693, 797 1071, 1115 
 
 Independent Mut. Ins. Co. ■». Agnew, 34 Penn. 
 
 St., 96; 3 Phila.. 193, 1396 
 
 India & London Life Ass. Co. v. Dalby, 4 De 
 
 G. & S , 462, 706 
 
 Indiana Mut. Fire Ins. Co. n. Chamberlain, 
 
 8 Blackf., 150, 757 
 
 ■». Coquillard, 3 Ind., 645, 1057 
 
 ■». Routledge, 7 Ind., 25, 767 
 
 Indiana Mut. Ins. Co.b. Conner, 5 Ind., 170, 
 
 1052 
 Indianapolis Ins. Co. «. Mason, 11 Ind., 171, 
 
 1500 
 Inglis «. Vaux. 3 Camp., 437, 1043 
 
 Ingraham s. South Carolina Ins. Co., 3 Brev., 
 533 242 
 
 Ingram ». Agnew, 15 East, 517, 648 
 
 Ingrams ■». Mutual Ass. Soc, 1 Rob. (Va.), 661, 
 
 670 
 Inland Ins. Co. ®. Stauffer, 83 Penn. St., 397, 
 
 838, 878 
 Inman 0. Western Fire Ins. Co., 12 Wend., 452 
 
 835 
 
 Innes to. Alliance Mut. Ins. Co., 1 Sandf., 310, 
 
 845 
 Insurance Co. i>. Bailey, 13 Wall., 616, 740 
 
 B. Baring, 20 Wall., 159, 206, 688 
 
 ■». Boykin, 12 Wall., 433, 1106 
 
 ■». C. D. Jr„ 1 Woods, 73, 1337 
 
 ■». Chase, 5 Wall., 509, 688 
 
 %. City of New Orleans, 1 Wood, 85, 
 
 325, 1363 
 
 rt. Connor, 17 Penn. St., 136, 310 
 
 ■!). Colt, 20 Wall., 560, 314, 881, 909 
 
 ■». Dunham, 11 Wall., 1, 745 
 
 v. Dunn, 19 Wall., 214, 1188 
 
 1. Fogarty, 19 Wall., 640, 1505 
 
 n. Folsom, 18 Wall., 237; 8 Blatch., 170; 
 
 9 id., 201, 873, 777, 845, 1311 
 
 V. Francis, 11 Wall., 210, 1189 
 
 B. Harris, 3 Phila., 186, 631 
 
 v. Johnson, 33 Penn. St., 72, 343 
 
 «. Lyman, 15 Wall., 664, 240, 488 
 
 «. Mahone, 21 Wall., 152, 
 
 504, 510, 530 
 
 v. Mordecai, 23 How., Ill, 585 
 
 «. Morse, 30 Wall., 445 ; 49 How. Pr., 314, 
 
 1188, 1191 
 
 B. Mosely, 8 Wall., 397, 515 
 
 ■e. Piaggo, 16 Wall., 378 , 28, 205, 681 
 
 v. Rupp, 29 Penn. St., 526, 386 
 
 B. Sea, 21 Wall., 158, 206 
 
 B. Scaver, 19 Wall, 531 , 393 
 
 B. Seitz, 4 W. & 8., 273, 1483 
 
 B. Slaughter, 12 Wall., 404, 750 
 
 B. Th wing, 13 Wall .,672, 880 
 
 B. Transportation Co., 12 Wall., 194; 6 
 
 Blatch., 241 ; 34 Conn., 561, 297 
 
 B. Trask, 8 Phila., 32, 169 
 
 B. Tweed, 7 Wall., 44,; 94, 547 
 
 B. Updegraff, 31 Penn. St., 513, 
 
 714, 1343 
 
 B. Webster, 6 Wall., 139, 1318 
 
 B. Weide, 9 Wall., 677, 520 
 
 B. Weide, 11 Wall., 439, 478 
 
 B. Wilkinson, 13 Wall., 223; 2 Dil. Cir. 
 
 C, 570. 504, 1065, 1165 
 
 V. Weides, 14 Wall., 375, 
 
 521, 543, 554, 1143 
 
 B. Wright, 1 Wall., 456, 398, 313 
 
 Insurance Co. of North America b. Hope, 58 
 I"-. 75, 822, 1162 
 
 B. Jones, 2 Binn., 547, 573, 608 
 
 B. McDowell, 50 111., 130, 81, 117,'552, 
 
 557, C74, 838, 874, 1047, 1118, 1303, 1526 
 
 Insurance Co. of Pennsylvania b. Duval 8 S 
 
 & R., 138, ' 1497 
 
 B. Phoenix Ins. Co., 71 Penn. St., 31, 
 
 105 
 
TABLE OF CASES 
 
 XXXIX 
 
 International Life Ass. Soc. In re, Ex parte 
 
 Mclver, 5 L. B. C!h., 434, 758 
 
 International Life Ass. Soc and Hercules Ins. 
 
 Co. In re, Ex parte Blood, 9 L. R. Eq., 
 
 816; 39 L. J. Ch. 295; 18 W. R., 370; 
 
 22 L. T. (N. S.), 467, 841 
 
 lonides o. Harford, 5 H. & N., 944; 29 L. J. 
 
 Ex., 36, 998 
 e. Pacific Fire and Marine Ins. Co., 6 L. 
 
 R Q. B., 674; 25 L. T. (N. S.), 490; 21 
 
 W. R, 23; 26 L. T. (N. S.), 788; 7 L. 
 
 R Q. B., 517; 41 L. J. Q. B., 190, 
 
 403, 499, 994 
 V. Pender, 9 L. R Q. B., 531 ; 43 L. J. Q. 
 
 B., 227; 22 W. R, 884; 30 L. T. (N. 
 
 S.), 547, 569 
 
 e. Universal Marine Jns. Co., 14 C. B. (N. 
 
 S.), 259; 32 L. J. C. P., 170; 11 W. R, 
 
 858 ; 8 L. T. (X. S.), 705, 222 
 
 Iowa State Ins. Co. v. Prdssee, 11 Iowa, 115, 
 
 153 
 Irving e. Excelsior Ins. Co., 1 Bos., 507, 992 
 
 c. Harrison, 3 L. J. Ch., 48, 742 
 
 V. Richardson, 2 B. & Ad., 193; 1 M. & 
 
 Rob., 153, 1349 
 
 Irwin c. National Ins. Co., 2 Disney, 68, 272 
 
 V. Sea Ins. Co., 22 Wend., 380, 1201 
 
 Isaacs c. Royal Ins. Co., 5 L. R Ex., 296; 39 
 
 L. J. Ex, 189; 18 W. R, 982; 23 L.T. 
 
 (N. S.), 681, 1373 
 
 J. 
 
 Jacob, In re. 4 De G. & S.. 534, 1 350 
 
 e. Jansen, 3 Taunt, 534, 627 
 
 Jacobs c. Eagle Mutual Fire Ins. Co., 7 Allen, 
 
 133," 668, 1389 
 V. Equitable Ins. Co., 18 U. C. Q. B., 14, 
 
 373; 17 id., 35; 19 id., 350; id., 257; 
 
 863 
 e. National Life Ins. Co., 1 Mac Arthur, 
 
 484, 973 
 «. National Life Ins. Co., 1 Mac Arthur, 
 
 632, 116, 519. 1067, 1361 
 
 Jackson «. iStna Ins. Co., 16 B. Mon., 343, 
 
 110, 457, 1215. 1385 
 c. Farmers Mutual Fire Ins. Co., 5 Gray. 
 
 53, 67, 674, 866 
 «. Forester, 1 E1.& El., 463 ; 5 Jur. (N. 8.), 
 
 £47; 28 L. J. Q. B., 166; 1 El. & El., 
 
 468 ; 5 Jnr. (N. 8.), 1347 ; 29 L. J Q. B.. 
 
 8; 7 W. R, 578, 163 
 
 Jackson o. New York Ins. Co., 2 Johns. C.,'193, 
 476, 811 
 
 ». Massachusetts Mutual Fire Ins. Co , 
 
 23 Pick., 418, 105, 866 
 
 0. Union Mutual Ins. Co., 8 L. R. C. P., 
 
 572; 23 W. R, 79 ; 10 L. R C. P.. 125, 
 
 601 
 James River Ins. Co. v. Merritt 47 Ala., 387, 
 
 466, 507. 
 
 Jameson v. Royal Ina. Co., 7 Irish R Law., 
 
 126, 1023, 1149 
 
 Jenney «. Columbian Ins. Co., 10 Wheat., 411, 
 
 266 
 
 Janson v. Solarte, 2 Tou. & Coll., 137; 6 L. J. 
 
 (N. S.) Ex. in Eq.. 75, 137, 681 
 
 Jardine t>. Leathley, 3 B. & 8, 700; 3 F. & F., 
 
 80 ; 9 Jur. (N. S.), 1035 ; 11 W. R, 432, 
 
 37 L. T. (N. S.), 783. 35 
 
 Jarman v. Coape, 13 East, 394; 2 Camp., 613, 
 
 1049 
 Jarrett e. Ward. 1 Camp., 263, 420 
 
 Jarvis v. Connecticut Mutual Life Ins. Co., 8 
 Chi. Leg. ^ews, 227, 
 
 734, 1358, 1361 
 Jefferies v. Legendra, Holt K. B., 465; Show., 
 320; Carth., 216, 369 
 
 Jefferson Ins. Co. o. Cotheal, 7 Wend., 72, 
 
 59, 131, 525, 1538 
 
 Jeffries o. Economical Mutual Life Ins. Co., 
 
 22 Wall., 47, 790 
 
 Jell o. Pratt, 2 Starkie, 67, 897 
 
 Jellinghaus o. New York Ins. Co., 4 Sandf., 
 
 18 ; 8 Bos., 281 ; 6 Duer, 1, 1088 
 
 Jenkins f>. Heycock, 8 Moore P. C. C, 351 ; 5 
 
 Moore Ind. App., 361, 1245 
 
 V. Power, 6 31au. & Sel., 283, 648 
 
 V. Quincy Mutual Fire Ins. Co., 7 Gray, 
 
 370. 491, 790 
 
 Jennings v. Chenango County Mut Ins. Co., 3 
 
 Denio, 75, 130 
 
 e. Insurance Co. of Pennsylvania, 4 Binn., 
 
 244, 311 
 
 Jessel «. Williamsburg Ins. Co., 3 Hill, 88, 
 
 74 
 
 Jewett o. Home Ins. Co., 39 Iowa, .'>62, 860 
 
 Job V. Langton, 6 El. & Bl., 779; 3 Jur. (N. 
 
 S.), 109 ; 36 L. J. Q. B., 97, 613 
 
 Joel V. Harvey, 5 W. R, 488; 39 L. T. (N. 8.), 
 
 75, 1013 
 
 Johnson v. Berkshire Mutual Fire Ins. Co., 4 
 
 Allen, 388, 1148 
 
 V. Columbian Ins. Co., 7 Johns., 315, 
 
 899, 1113 
 
 V. Ocean Ins. Co., 10 Rob. (La.), 334, 
 
 1029 
 V. Phoenix Ins. Co., 112 Mass., 49, 1186 
 
xl 
 
 TABLE OF CASES. 
 
 Johnson v. Phoenix Ins. Co., 1 Wash. C. C, 378, 
 
 241 
 
 •». Sheddon, 2 East, 581, 893 
 
 V. "Ward, 6 Esp., 47, 481, 513 
 
 «. West of Scotland Ins. Co., 7 C. C. S., 
 
 52, 1023 
 
 Johnston v. Graham, 14 U. C. C. P., 9, 274 
 
 V. Ludlow, 1 Gaines Cas., XXIX, 625 
 
 ■». Ludlow, 2 Johns. C, 481, 
 
 688, 806, 1276 
 
 D. Sutton, 1 Doug., 254, 646 
 
 Johnstone v. Niagara, 18 TJ. C. C. P., 331, 
 
 1090 
 
 Joliflfe V. Madison Mut. Ins. Co., 39 Wis., Ill, 
 
 926 
 
 Jolly B. Baltimore Equit-able Society, 1 H. & 
 G., 295, 378 
 
 Jones B. Alliance Mut. Ins. Co., 1 Sandf., 310, 
 
 266 
 
 V. Consolidated Investment Ass. Co., 26 
 
 Beav., 256; 5 Jur. (N. S.), 214; 28 L. 
 J. Ch.,-66, 158 
 
 V. Firemen's Fund Ins Co., 51 N. T., 
 
 318, ■ 661 
 
 v. Insurance Co., 2 Wall. Jr., 278, 1264 
 
 c. Insurance Company of North Ameri- 
 ca, 4 Dall., 247, 599 
 
 v. Keene, 2 M. & R., 348, 569 
 
 V. Maine Mut. Ins. Co., 18 Me., 155, 870 
 
 v. Mechanics Fire Ins. Co., 36 N. J., 29, 
 
 81,532,555,1124,1141 
 
 11. Neptune Marine Ins. Co., 7 L. R. Q. B., 
 
 702; 41 L. J. Q. B., 370; 27 L. T. (N. 
 S.), 308, 990 
 
 V. Nicholson, 10 Exch., 28; 23 L. J. Ex., 
 
 330, 200 
 
 «. Provincial Ins. Co., 3 C. B. (N. S.), 65 ; 
 
 3 Jur. (N. S.), 1004; 26 L.J. Q. B., 
 272, 1306 
 
 v. Provincial Ins. Co., 16 U. C. Q. B., 477, 
 
 888 
 
 V. Schmall, 1 Term, 130 n., 1022 
 
 V. Sisson, 6 Gray, 288, 1056 
 
 V. St. Joseph Fire and Marine Ins. Co., 55 
 
 . Mo., 342, 126, 1482 
 
 Jones Manufacturing Co. v. Manufacturers Mu- 
 tual Fire Ins. Co., 8 Cush., 82, 
 
 845,1206 
 
 Jordaine v. Cornwall, 1 Starkie, 6, 1429 
 
 Jordan v. Warren Ins. Co., 1 Story, 342, 598 
 
 Joyce v. Kennard, 7 L. R. Q. B., 78; 41 L. J. 
 
 Q. B., 17; 25 L. T. (N. S.), 982; 20 
 
 W. R., 233, 284 
 
 V. Maine Ins. Co., 45 Me., 168, 662, 828 
 
 V. Realm Marine Ins. Co., 7 L. R. Q. B., 
 
 580; 41 L. J. Q. B., 356; 27 L. T. (N. 
 8.), 144, 984 
 
 Jube o. Brooklyn Fire Ins. Co., 28 Barb., 412, 
 
 1143 
 Judah ». Randal, 2 Caines Cas., 324, 1437 
 
 Juhel V. Church, 2 Johns. C, 333, 1098 
 
 Jumel «. Marine Ins. Co., 7 Johns., 412, 
 
 607, 1036, 1407 
 
 K. 
 
 Kahl V. Jansen, 4 Taunt., 565, 513 
 
 Kane v. Columbian Ins. Co., 2 Johns., 265, 
 
 441 
 
 V. Commercial Ins. Co., 8 Johns., 229, 90 
 
 V. Reserve Mutual Life Ins. Co., 9 Phila., 
 
 234, 685 
 
 Kanes v. Knightly. Skin., 54, 495 
 
 Kansas Ins. Co. v. Berry, 8 Kans., 159, 
 
 484, 538, 822, 1149, 1381 
 Katheman v. General Mutual Ins. Co., 12 La. 
 
 An., 35, 589, 1473 
 
 Kavanagh ®. Waldron, 3 Jo. & Lat., 214, 1349 
 Keane s. Branden, 12 La. An., 20, 275 
 
 Keeler v. Firemens Ins. Co., 3 Hill, 250, 947 
 
 V. Niagara Fire Ins. Co., 16 Wis., 523, 
 
 469, 1105 
 Keeley v. Insurance Co., 1 Phila., 175, 726 
 Keenan v. Dubuque Mutual Fire Ins. Co., 18 
 
 Iowa, 375, 458, 1087 
 v. Missouri State Mutual Ins. Co., 12 Iowa, 
 
 126, 458, 1074, 1146 
 
 Keeny v. Home Ins. Co., 3 N. T. S. C, 478, 
 
 1388 
 Keim v. Home Mutual Ins. Co., 42 Mo., 38, 
 
 325, 774 
 Keith v. Globe Ins. Co., 52 111., 518, 
 
 252, 1157, 1172 
 V. Quincy Mutual Fire Ins. Co., 10 Allen, 
 
 228, 825 
 V. Thompson, Faculty Dec, 1792 to 1796, 
 
 p. 428, 1286 
 
 Keir d. Andrake, 6 Taunt., 499, 630 
 
 Kellar v. Merchants Ins. Co., 7 La. An., 29, 
 
 1346 
 Keller v. Equitable Ins. Co., 28 Ind„ 170, 
 
 1053 
 
 V. Gaylor, 40 Conn., 343, 204 
 
 Kellner B. Le Mesurier, 4 East, 396; 1 Smith, 
 
 73, 119, 30a 
 
 Kelly V. Commonwealth Ins. Co., 10 Bos., 83, 
 
 358, 511, 884 
 
 D. Home Ins. Co., 97 Mass., 288, 1455 
 
 e. Indemnity Ins. Co., 38 N. T., 323, 376 
 
 0. Solari, 11 L. J. Ex., 10, 944 
 
 V. Worcester Mut. Ins. Co., 97 Mass., 284, 
 
 747 
 
TABLE OP CASES. 
 
 xli 
 
 Kelley c. "Walton, 3 Cainp., 155, 22 
 
 Kelsall e. Tyler, 11 Exch., 513; 25 L. J. Ex., 
 
 153, 186 
 
 Kelsey «. Universal Life Ins. Co., 35 Conn., 
 
 225, 130, 514 
 
 Kemble o. Bowne, 1 Caines, 75, 183, 261 
 
 V. Rhinelander, 3 Johns. C, 130, 626 
 
 Kemp V. Halliday, 6 R & S., 723 ; 1 L. K. Q. B., 
 
 520; 13 Jur. (N. S.), 583; 35 L. J. Q. 
 
 B., 156; 14 W. R, 697; 14 L. T. (N. 
 
 S.), 763, 1433, 1443 
 
 «. Vigne, 1 Term, 304, 411 
 
 Kendall c. Holland Purchase Ins. Co , 3 N. Y. 
 
 S. C, 373, 527, 831 
 
 Kendrick v. Delafleld, 2 Caines, 67, 194 
 
 Kennebec County v. Augusta Insurance and 
 
 Banking Co., 6 Giay, 204, 330 
 
 Kennedy t>. New York Life Ins. Co., 10 La. 
 
 An., 809, 335, 1473 
 e. St Lawrence County Mut. Ins. Co., 10 
 
 Barb., 285, 83 
 
 Kenney v. Clarkson, 1 Johns., 385, 401, 689 
 Kenniston v. Merrimack County Mut Ins. Co., 
 
 14 N. H., 341, 285 
 
 Kensington c. Inglis, 8 East, 273, 
 
 522, 633, 1314 
 Kent V. Liverpool and London Ins. Co., 26 
 
 Ind., 294, 1011 
 
 V. Manufacturers Ins.Co., 18 Pick., 19, 
 
 451 
 Kenton Ins. Co. «. Shea, 6 Bush., 174, 873 
 Kentucky and Louisville Ins. Co. «. Southard, 
 
 8 B. Mbn., 634, 494, 964, 1206, 1529 
 Kentucky Farmers Mut Ins. Co. e. Mathers, 
 
 7 Bush., 23, 758 
 
 Kentucky Mut Ins Co. c. Jenckq, 5 Ind., 96, 
 
 327 
 Kerman v. Howard, 23 Wis., 108, 1530 
 Kern v. Groning, 1 Brev., 506, 609 
 «. South St Louis Mut Ins. Co., 40 Mo., 
 
 19, 534, 657 
 
 Kernahan c. National Ass. Co., 10 Ir. L. R., 
 
 819, 778 
 
 Kemochan c. New Tork Bowery Ins. Co., 17 
 
 N. Y., 438; 5 Duer., 1, 
 
 248, 1103, 1336 
 
 Kerr r. Farlie, 1 S. & D., 384. 1489 
 
 c. Quaker City Ins. Co.. 33 Mo., 158, 
 
 1498 
 
 o. Rew, 5 Myl. & Cr., 154, 449 
 
 Kerrs Policy, In re, 38 L. J. Ch., 539; 17 W. 
 
 R, 989 ; 8 L. R Eq., 831, 1333 
 
 Ketchum c. Protection Ins. Co., 1 Allen N. B., 
 
 136, 73, 559, 760, 771, 954, 955, 
 
 973, 979, 1136 
 
 Kett V. Robinson, 4 Ir. C. L. R, 186, 1281 
 
 Kettell V. Alliance Ins. Co., 10 Gray, 144, 
 
 1507 
 
 V. Wiggin, 13 Mass., 68, 40S 
 
 Kewley v. Ryan, 2 H. BI., 343, 435 
 
 Key V. Young, Faculty Dec, 1781 to 1787, p. 
 
 196, 239 
 
 Keyser e. Scott, 4 Taunt., 660, 1050 
 
 Kibbe «. Hamilton Mut. Ins. Co., 11 Gray, 103, 
 
 1382 
 Kidston v. Empire Marine Ins. Co., 2 L. R. 
 
 C. P., 357; 36 L. J. C. P., 15'-.; 16 L. 
 
 T. (N. S.), 119; 15 W. R, 769; 1 L. R 
 
 C. P., 535; 12 Jur. (N. S.), 665; 15 
 
 W. R., 63 ; 15 L. T. (N. S.), 12 ; 35 L. 
 
 J. C. P., 250, 596 
 
 Kill f). Hollister, 1 Wils., 129, 135 
 
 Killips V. Putnam Fire Ins. Co., 28 Wis., 472, 
 
 764, 1125, 1134 
 Kimball o. ^tna Ins. Co., 9 Allen, 540, 828 
 
 e. Hamilton Fire Ins. Co., 8 Bos., 495, 
 
 80 
 
 c. Howard Fire Ins. Co., 8 Gray, 33, 855 
 
 King V. Accumulative Life Fund Co., 3 C..B. 
 
 (N. S.), 151 ; 3 Jur: (N. ST), 1264, 8 
 e. Delaware Ins. Co., 6 Cranch, 71; 3 
 
 Wash. C. C, 300, 576, 1311 
 e. Enterprise Ins. Co., 45 Ind., 43, 
 
 537, 541, 964, 977, 978, 1180, 1225, 1453 
 
 «. Glover, 5 B. & P., 206, 1460 
 
 c. Hartford Ins. Co., 1 Conn., 833, 
 
 27, 7S1, 1050, 1051 
 
 V. Hartford Ins. Co., 1 Cunn., 422, 10 
 
 V. Middleton Ins. Co., 1 Conn., 184, 
 
 1050, 1398 
 
 0. Preston, 11 La. An., 95, 1347 
 
 e. State Mutual Fire Ins. Co., 7 Cush., 1, 
 
 1310 
 c. Walker, 2 H. & C, 384; 33 L. J. Ex., 
 
 167; 3 H. & C, 209; 11 Jur. (N. S), 
 
 43; 33 L. J. Ex., 325, 8 
 
 e. Western Ass. Co., 7 U. C. C. P., 300, 
 
 1444 
 Kingsford z. Marshall, 8 Bing., 458; 1 M. & 
 
 Scott 657, 1326 
 
 Kingsley v. New England Mutual Fire Ins. 
 
 Co., 8 Cush., 393, 67, 517, 834, 846 
 
 Kinston c. Girard, 4 Dall., 275, 404 
 
 1>. Knibbs, 1 Camp., 508 n., 438 
 
 Kinlock r. Campbell, Faculty Dec, 1814 to 
 
 1815, p. 421, 344 
 o. Duguid, Faculty Dec, 1812 to 1814, p. 
 
 108, 795 
 
 Kinsman c. New York Mut Ins. Co., 5 Bos., 
 
 460, 815 
 
 Kip V. In re Mutual Fire Ins. Co., 4 Edw. Ch., 
 
 86, 710 
 
xlii 
 
 TABLE OF CASES. 
 
 Kirbj' V. Smith, 1. B. & A., 073. 238 
 
 Kirk V. Bennet, Faculty Dec, 1813 to 1814, p. 
 33, 1286 
 
 Klein V. Franklin Ins. Co., 13 Penn. St., 247, 
 
 374, 683 
 Kl ingender v. Bond, 14 East, 484, 632, 635 
 
 V. Home and Colonial Ins. Co., 15 L. T. 
 
 (N. S.), 16, 584 
 
 Kleinwort v. Shepard, 1 El. & El., 447; 5 Jur. 
 
 (N. S.), 863; 28 L. J. Q. B., 147; 7 W. 
 
 R., 337, 223 
 
 Klett ». Delaware Ins. Co., 23 Penn. St., 263, 
 
 1495 
 
 Knickerbocker Life Ins. Co. v. Barker, 55 111., 
 
 341, 964 
 
 1). Hoeske, 33 Md., 317, 733 
 
 V. Weitz, 99 Mass., 157, 1532 
 
 Knight V. Cambridge, 3 Ld. Raymond, 1349 ; 1 
 Strange, 581 ; 8 Mood., 230, 130 
 
 V. Faith, 15 Q. B., 649 ; 19 L. J. Q. B., 509 ; 
 
 14 Jur., 1114, 14 
 
 Knightly v. Burdet, 3 Vern., 11, 735 
 
 Knill o. Hooper, 3 H. & N., 377 ; 36 L, J. Ex., 
 
 377, 1243 
 
 Knorr v. Home Ins. Co., 35 Wis., 143, 1189 
 
 Knowles ». Haughton, 11 Ves. Jr., 168, 743 
 
 Knox B. Turner, 39 L. J. Ch., 307, 750; 9 L. R. 
 
 Eq., 155 ; 31 L. T. (N. S.}, 701 ; 5 L. R. 
 
 Ch., 515; 33 L. T. (N. 8.), 337; 18 W. 
 
 R., 376, 873, 1353 
 
 V. "Wood, 1 Camp., 543, 703 
 
 Koebel v. Saunders, 17 C. B. (N. S.), 71 ; 10 
 Jur. (N. S.), 920; 33 L. J. C. P., 310; 
 13 W. R., 1106; 10 L. T. (N. S.), 695, 
 
 1371 
 Kolgers v. Guardian Life Ins. Co., 2 Lans., 480; 
 58 Barb., 185; 9 Abb. Pr. (N. S.), 91, 
 
 933 
 
 0. Guardian Life Ins. Co., 57 N. T., 638; 
 
 10 Abb. Pr. (N. S.), 176, 143 
 
 Kohn D. Insurance Co. of North America, 6 
 
 Binn., 319 ; 1 Wash. C. C, 93, 158, 240 
 
 o. New Orleans Ins. Co., 13 La. (O. S.), 
 
 348, 1017 
 
 Koontz 0. Hannibal Savings and Ins. Co., 43 
 Mo., 126, 1484 
 
 Korn V. Mutual Ass. Soc, 6 Cranch, 192, 
 
 153, 1447 
 Koster v. Eason, 2 Mau. & Sel., 112, 1291 
 
 V. Innes, R. &. M., 333, 1434 
 
 ■». Reed, 6 B. & S., 19, 1418 
 
 Kreutz v. Niagara District Mutual Fire Ins. 
 
 Co., 16 U. C. C. P, 131, 159 
 
 Bj-urabhaar ®. Marine Ins. Co., 1 8. & R., 281, 
 
 31 
 Eugler, Succession of, 23 La. An., 455, 1530 
 
 Kuntz V. Niagara District Mutual Fire Ins. 
 
 Co., 16 U. C. C. P., 593, 1457 
 
 Kunzze v. American Exchange Fire Ins. Co., 
 
 41 N. Y. (3 Hand.), 413; 3 Rob., 443, 
 
 1194 
 Kynaston v. Liddell, 8 Moore, 328, 140 
 
 L. 
 
 Lackey d. Georgia Home Ins. Co., 43 Ga., 456, 
 
 859 
 Ladbroke ®. Lee, 4 DeG. & 8., 106, 214 
 
 Lafayette Ins. Co. v. French, 18 How., 404, 36 
 Laidlaw v. Liverpool and London Ins. Co., 13 
 
 Grant Ch., 337, 331 
 
 Laing ®. Glover, 5 Taunt., 49, 369 
 
 V. United Ins. Co., 2 Johns. C, 487, 1376 
 
 Laird v. Robertson, 4 Bro. P. C, 488, 131 
 
 Lake v. Brutton, 8 DeG., M. & G., 440; 3 Jur. 
 
 (N. S.), 839 ; 25 l! J. Ch., 843, 1333 
 
 ■». Columbus Ins. Co., 13 Ohio, 48, 1336 
 
 Lamar Ins. Co. v. McGlashen, 54 111., 513, 893 
 Lamatt v. Hudson River Ins. Co., 17 N. T., 
 
 199 n., 489 
 
 Lamb v. Lamb, 7 Chi. Leg. News, 411, 1315 
 Lambe v. Smith, Faculty Dec, 1814 to 1815, p. 
 
 320, 255 
 
 Lambert ■b. Liddard, 5 Taunt., 480; Marsh., 
 
 149, 445 
 
 Lampkin «. Ontario Marine and Fire Ins. Co., 
 
 13 U. C. Q. B., 578, 839 
 
 V. Western Ass. Co., 13 U. C. Q. B., 361, 
 
 760 
 Lancey e. Phoenix Fire Ins. Co., 56 Me., 562, 
 
 77, 503 
 Landis v. Home Mutual Fire Ins. Co., 56 Mo., 
 
 591, 767,1233 
 
 Lane v. Maine Mutual Fire Ins. Co., 13 Me., 
 
 44, 101, 1008, 1481 
 V. Nixon, 1 L. R. C. P., 412; 12 Jur. (N. 
 
 8.), 392 ; 35 L. J. C. P., 343 ; 14 W. R. 
 
 641, 1369 
 
 Lang V. Anderdon, 3 B. & C, 495; 1 C. & P., 
 
 171, 480; 5 D. & R., 393; 3 L. J. K. 
 
 B., 63, 1337 
 
 Langdale v. Mason, 1 Marsh, on Ins., 688, 731 
 Langdon v. Equitable Ins. Co., 1 Hall (N. T.) 
 
 335; 6 Wend., 633, -jgo 
 
 Langel ■b. Mutual Ins. Co., 17 U. C. Q. B., 524, 
 
 1138 
 Langhorn v. AUnutt, 4 Taunt., 511, 445 
 
 V. Cologan, 4 Taunt., 330, 120, 1333 
 
 V. Hardy, 4 Taunt., 638, 605 
 
TABLE OF CASES. 
 
 xliii 
 
 Lapeer County Ins. Co. v. Doyle, 30 Mich., 159, 
 
 374 
 
 Lapene v. Sun Mut Ins. Co., 8 La. An., 1, 
 
 1253 
 
 Lapham v. Atlas Ins. Co., 24 Pick., 1, 
 
 443, 523, 1449 
 
 Lappin «. Charter Oak Fire and Marine Ins. 
 
 Co., 58 Barb., 325, 1388 
 
 Lapsley v. United States Ins. Co., 4 Binn., 502, 
 
 1433 
 
 Laroche v. Oswln, 12 East, 181, 437 
 
 La Societe ». Morris, 24 La. An., 347, 
 
 139, 923, 1109 
 
 Lattomus c. Farmers Mutual Fire Ins. Co., 3 
 
 Houst., 254, 1453 
 
 Laurent v. Chatham Ins. Co., 1 Hall (N. T.), 
 
 40, 383 
 
 Lavabre v Fletcher, 1 Dong., 284, 823 
 
 D. Wilson, 1 Doug., 284, 417 
 
 Law t>. Goddard, 13 Mass., 113, 296 
 
 V. Hollingsworth, 7 Term, 160, 948 
 
 V. London Indisputable Life Policy Co., 
 
 1 Jur. (N. S.), 178; 34 L. J. Ch., 196; 
 
 1 Kay. & J., 323, 687 
 
 V. Warren, Drury, 31 ; 6 Ir. Eq., 299, 
 
 1174 
 
 Lawless c. Tennessee Marine and Fire Ins. Co., 
 Hunt's Mer. Mag., Feb., 1853, p. 205, 
 
 1516 
 Lawrence v. Aberdein, 5 B & A., 107, 1031 
 
 V. Holyoke Ins. Co., 11 Allen, 387, 161 
 
 ti. Nelson, 31 N. T., 158; 4 Bos., 340, 
 
 1287 
 
 V. New York Ins. Co., 3 Johns. C, 217, 
 
 892 
 
 V. Ocean Ins. Co., 11 Johns., 345 n., 
 
 536, 1143 
 
 e. Ocean Ins. Co., 11 Johns., 340, 
 
 434, 1119 
 
 V. Sebor, 2 Caines, 203, 497, 561, 1436 
 
 0. St. Marks Fire Ins. Co., 43 Barb., 479, 
 
 690 
 
 V. Sydebotham, 6 East, 45 ; 3 Smith, 314, 
 
 420 
 
 c. Van Home, 1 Caines. 276, 388, 689 
 
 Lawton o. Sun Mut. Ins. Co., 3 Cush., 500, 
 
 196, 890 
 Lazare v. Phoenix Ins. Co., 8 U. C. C. P., 136, 
 
 483 
 
 Lazarus v. Commonwealth Ins. Co., 5 Pick., 
 
 76, 179 
 
 e. Commonwealth Ins. Co., 19 Pick., 81, 
 
 181, 691 
 
 Lea V. Hinton, 19 Beav., 334; 5 DeG. M. & G., 
 
 825, 1332 
 
 Leadbetter s. JEtna Ins. Co., 13 Me., 265, 371 
 
 Leatham v. Teny, 3 B. & P., 478. 600 
 
 Lealliers «. Farmers Mutual Fire Ins. Co., 24 
 
 N. H., 359, 1383 
 
 Leathley v. Hunter, 7 Bing., 517 ; 10 B. «S: C, 
 
 858; 1 Tyrw., 355; 8 L. J. K. B., 274; 
 
 9 L. J. Ex., 118 ; 5 M. & P., 457, 437 
 
 Leavitt v. Western Marine and Fire Ins. Co., 7 
 
 Bob. (La.), 351, 858 
 
 Le Clieminaut v. Pearson, 4 Taunt., 367, 
 
 628, 1380 
 Le Cras v. Hughes, 3 Doug., 81, 618, 696 
 
 Lee, Ex parte, 13 Ves. Jr., 64, 365 
 
 «. Boardman, 3 Mass., 237, 1408 
 
 «. Fraternal Mut. Ins. Co., 1 Handy, 217, 
 
 57, 63, 1181 
 
 v. Guardian Life Ins. Co., 5 Ins. L. J.. 26, 
 
 475 
 
 ■». Howard Mutual Fire Ins. Co., 11 Cush., 
 
 334, 1201 
 
 V. Howard Fire Ins. Co., 3 Gray, 583, 
 
 1455, 1516 
 
 v. Southern Ins. Co., 5 L. R. C. P., 397 ; 
 
 39 L. J. C. P., 218; 18 W. R., 863; 33 
 L.T. (N. S.),443, 600 
 
 Leeds v. Mechanics Ins. Co., 8 N. T., 351, 
 
 1078, 1307 
 Lees V. Smith, 7 Term, 338, 366 
 
 Leevin v. Cormac, 4 Taunt., 483 n, 638 
 
 Le Feuvre v. Sullivan, 10 Moore P. C. C, 1, 
 
 1G7 
 Lefevre v. Boyle, 1 L. J. (N.S.) K B., 199, 
 
 1393 
 
 V. Boyle, 3 B & Ad., 877, 63 
 
 Leftwitch c. St. Louis Perpetual Ins. Co., 5 
 La. An., 706, 817 
 
 Leggett V. JGtna Ins. Co., 10 Rich., 302, 753 
 Leiber v. Liverpool, London and Globe Ins. 
 Co., 6 Bush., 639, 1370 
 
 Leigh V. Adams, 35 L. T. (N. S.), 566, 244 
 
 «. Knickerbocker Life Ins. Co., 26 La. 
 
 An., 436, 923 
 
 V. Mather, 1 Esp., 412, 418 
 
 Le Mesurier v. jT'aughan, 6 East., 383 ; 2 Smith, 
 
 492, 1293, 1519 
 
 Lemcke v. Vaughan, 2 L. J. C. P., 44; 7 D «fc 
 
 R., 336, 632, 635 
 
 Lemon v. Phcenix Mutual Life Ins. Co., 38 
 
 Conn., 394, 166 
 
 Leonarda v. Phoenix Ass. Co., 2 Rob. (La.), 131, 
 
 1037 
 Lenox v. United Ins. Co., 3 Johns. C, 178, 
 
 394, 621 
 
 v. United Ins. Co., 3 Johns. C, 234, 81 
 
 Lepeyre «. Thompson, 7 La. An., 218, 171 
 
 Le Pypre v. Farr, 2 Vern., 716, 1479 
 
 Le Roy v. Grouverneur, 1 Johns. C, 226, 
 
 607, 1501 
 
xliv 
 
 TABLE OP CASES. 
 
 Le Roy «. Market Fire Ins. Co., 39 N. Y., 90, 
 
 304, 402 
 
 V. M.arket Ins. Co., 4'5 N. T., 80, 304 
 
 i>. Park Ins. Co., 39 N. Y., 56, 311 
 
 V. United Ins. Co., 7 Johns., 344, 
 
 383, 807 
 
 Leslie a. Knickerbocker Life Ins. Co., 2 Hun. 
 
 (N. Y.), 616 ; 5 N. Y. S. C, 193, 913 
 
 ■». Linn, Faculty Dec. 1781 to 1787, p. 173, 
 
 214 
 
 Lester v. Scott, Faculty Dec. 1808 to 1810, p. 
 
 403, 503 
 
 Levi 0. Allnutt, 15 East, 267, 221 
 
 V. Barnes, Holt N. P., 412, 216 
 
 Levin v. Newnham, 4 Taunt., 722, 1051 
 
 Levy B. Brooklyn Fire Ins. Co., 25 Wend., 
 
 687, 1164 
 
 V. Baillie, 7 Bing., 349; 5 M. & P., 208, 
 
 817 
 
 t). Merrill, 4 Me., 180, 455, 1016, 1278 
 
 V. Vaughan, 4 Taunt., 387, 1050 
 
 Lewis V. Eagle Ins. Co., 10 Gray, 508, 793 
 
 V. Irving Fire Ins. Co., 15 Abb. Pv. (N. S.), 
 
 308, n., 1163 
 
 V. Monmouth Mutual Fire Ins. Co., 52 
 
 Me., 492, 1107 
 
 V. Phcenix Mutual Life Ins. Co., 39 Conn., 
 
 100, 686, 1283 
 
 V. Rucker, 2 Burr., 1167, 389 
 
 v. Springfield Fire and Marine Ins. Co., 
 
 10 Gray, 159, 550 
 
 «. Thatcher, 15 Mass., 481, 1515 
 
 V. Williams, 1 Hall (N. Y.), 430, 608 
 
 Lexington Ins. Co. v. Paver, 16 Ohio, 324, 
 
 149, 257, 1482 
 
 Liberty Hall Ass. Co. v. Housatonic Mut. Ins. 
 
 Co., 7 Gray, 261, 477, 501, 1491 
 
 Liddle B. Market Ins. Co., 29 N.Y., 184; 4 Bos. 
 
 179, 663 
 
 Lidgett V. Secretan, 5 L. R. C. P., 412; 6 id., 
 
 616; 39 L. J. C. P., 196; 40 id., 257; 
 
 18 W. R., 692; 19 id,, 1088; 22 L. T. 
 
 (N. S.), 272 ; 24 id., 942, 1043, 1470 
 
 Liebenstein v. JEtna Ins. Co., 45 111., 303, 
 
 1005 
 
 V. Baltic Fire Ins. Co., 45 111., 301, 1009 
 
 V. Metropolitan Ins. Co., 45 111., 305, 1009 
 
 Life Ins. Co. V. Francisco, 17 Wall., 672, 
 
 1063, 1205, 1301 
 
 V. Terry, 15 Wall., 580; 1 Dill. Cir. C, 
 
 403, 1355 
 
 Lightbody v. North America Ins. Co., 33 
 
 Wend., 18, 358, 525, 981, 1068 
 
 Lilly V. Ewer, 1 Dong., 72, 871 
 
 Lime Rock Fire and Marine Ins. Co. v. Treat, 
 
 58 Me. 415. 273 
 
 Lincoln v. Hope Ins. Co., 8 Gray, 32, 
 
 1440 
 
 Lindauer v. Delaware Mutual Safety Ins. Co., 
 
 13 Ark., 461, 347, 401, 529, 889 
 
 Lindsay v. Barmcotte, 13 C. C. S., 718 ; 23 Scot. 
 
 Jur., 815, 1833 
 
 V. Leathley, 3 P. & P., 902, 786, 1443 
 
 V. Janson, 4 H. & N., 699; 28 L. J. Ex., 
 
 315, 438 
 
 «. Union Mutual Fire Ins. Co., 3 R. I., 
 
 157, 378 
 
 Linford v. Provincial Horse and Cattle Ins. 
 
 Co., 34 Beav., 291 ; 10 Jur. (N. S.), 1066 ; 
 
 11 L. T. (N. S.), 330, 1088 
 
 Liotard ®. Graves, 3 Caines, 226, 1093 
 
 Lippincott v, Insurance Co., 3 La. (O. S.), 546, 
 
 1173 
 
 V. Louisiana Ins. Co., 3 La. (0. S.), 399, 
 
 410, 493 
 
 Liscom V. Boston Mutual Fire Ins. Co., 9 Met., 
 
 305, 866 
 
 Lishman v. !N'orlli£rn Marine Ins. Co., 8 L. R. 
 
 C. P., 316; 10 id., 179; 42 L. J. C. P., 
 
 108; 21 W. R., 386; 28 L. T. (N. S.), 
 
 165, 354 
 
 Litchfield v. Dyer, 46 Me., 31, 364 
 
 Littledale v. Dixon, 4 B. & P., 151, 263 
 
 Livermore v. Newbupyport Marine Ins. Co., 
 
 1 Mass., 264,. 24 
 
 T: Newburypoit Marine Ins. Co., 3 Mass., 
 
 233. 1384 
 
 Liverpool Ins. Co. v. Hunt., 11 La. An., 633, 
 
 94 
 
 ■». State of Massachusetts, 10 Wall., 566, 
 
 1863 
 
 Liverpool, London and Globe Ins.Co. ».Creigh- 
 
 ton, 51 Ga., 95, 135, 1371 
 
 Livingston v. Columbian Ins. Co., 3 Johns;, 
 
 49, 603, 1407 
 
 V. Delafleld, 3 Caines, 49, 337, 1063 
 
 V. Delafleld, 1 Johns., 532, 376, 511, 818 
 
 V. Hastie, 3 Johns. C, 393, 36, 28 
 
 «. Maryland Ins. Co., 6 Cranch, 274, 
 
 36, 806, 1449, 1454 
 
 V. Maryland Ins. Co., 7 Cranch, 506, 
 
 235, 1304 
 
 Livie V. Janson, 13 East., 648, 147 
 
 Lloyd^». Fleming, 7 L. R. Q. B., 299; 41 L. J. 
 
 Q. B., 93 ; 30 W. R., 296 ; 25 L. T. (N. 
 
 S.), 824, 63 
 
 Locke V. North American Ins. Co., 13 Mass., 
 
 61, 691 
 
 Lockett V. Firemens Ins. Co., 10 Rob. (La.), 
 
 332, 1029 
 
 V. Merchants Ins. Co., 10 Rob. (La.), 839, 
 
 436, 1018 
 
TABLE OF CASES. 
 
 xlv 
 
 Lockwond v. Atlantic Mut. Ins. Co., 47 Mo., 
 
 50, 590 
 
 V. Sangamo Ins. Co., 46 Mo., 71, 
 
 7, 1268, 1473 
 
 Lockyer o. Offley, 1 Term, 252, 1048 
 
 Lodwicks V. Ohio Ins. Co., 5 Ohio, 433, 1150 
 
 Loehner v. Home Mut. Ins. Co., 17 Mo., 347 ; 
 
 19 id., 638, 520, 671, 1883, 1484 
 
 Lomas e. British American Ass. Co. 22, U. C. 
 
 Q. B., 310, 660, 971 
 
 London and Norh western Railway Co. v. Glyn, 
 
 1 El. & El., 652; 5 Jur. (N. S.), 1004; 
 
 28 L. J. Q. B., 188, 994 
 
 London Ass. Co., ». Sainsbury, 8 Dong., 245, 
 
 79 
 
 London Investment Co. ■». Monteflore, 9 L. T. 
 
 (N. S.), 688, ., 57 
 
 London Miirine Ins. Assn., In re Smith's case, 
 
 4 L. R. Ch., 611, 352 
 
 Long V. Allen, 4 Doug., 277, 1230 
 
 V. Duff, 3 B. & P., 209, 261, 370 
 
 Longhurst v. Star Ins. Co., 19 la., 364, 
 
 471, 767 
 
 Long Pond Mutual Fire Ins. Co. ■». Houghton, 
 
 6 Gray, 77, 154, 1056 
 
 Loomis 0. Eagle Life Ins. Co., 6 Gray, 396, 
 
 685 
 
 V. Shaw, 2 Johns. C, 36, 1099 
 
 Looney v. Looney, 116 Mass., 283, 126, 802 
 
 Loraine v. Thomlinson, 2 Doug., 585, 1238 
 
 Lord V. Dall, 13 Mass., 115, 684, 686 
 
 V. Neptune Ins. Co., 10 Gray, 109. 
 
 580, 1499 
 
 v. Robinson, 6 L. J. K B., 213, 988 
 
 Lorent v. South Carolina Ins. Co., 1 N. & Mc C, 
 
 505, 145 
 
 Lorillard Fire Ins. Co. s. McCulloch, 21 Ohio 
 
 St., 176, 676 
 
 Loring v. Manufacturers Ins. Co., 8 Gray, 28, 
 
 97 
 
 D. Neptune Ins. Co., 20 Pick., 411, 88 
 
 V. Proctor, 26 Me., 18, 323 
 
 Losh V. Douglass, 20 C. C. 8., 58, 214 
 
 V. Martin, 19 C. C. S., 101, 89 
 
 Lothian v. Henderson, 3 B. & P., 499, 1279 
 Lothrop V. Greenfield Stock and Mut. Ins. Co., 3 
 Allen. 82, 152 
 
 Loud V. Citizens Mut. Ins. Co., 3 Gray, 231, 
 
 132 
 
 Louisville 3Iarine and Fire Ins. Co. v. Bland, 
 
 D Dana, 143, 94, 384, 1510 
 
 Louisiana Mut. Ins. Co. «. New Orleans Ins. 
 
 Co., 13 La. An., 246, 793 
 
 Louisville R. R. Co. v. Letaon, 2 How., 497, 
 
 743 
 
 Lounsbury «. Protection Ins. Co., 8 Conn., 459, 
 
 949, 950, 104d, 1143, 1458 
 
 Lovejoy v. Augusta Mutual Fire Ins. Co., 45 
 
 Me., 472, 1485 
 
 Lovell V. McMillan, Faculty Dec, 1808 to 1810^ 
 
 p. 341, 1034 
 
 Lovering v. Mercantile Ins. Co., 12 Pick., 348, 
 
 11, 27, 34, 626, 1408, 1460 
 
 Low V. Davy, 5 Binn., 595; 3 S. & R., 553, 
 
 1037 
 
 Lowell ®. Middlesex Mutual Fire Ins. Co., 8 
 
 Cush., 137, 1381 
 
 Lowry v. Bordieu, 2 Doug., 468, 1233 
 
 Lozans v. Janson, 2E1. & El., 160; 5 Jur. (N- 
 
 S.), 1401; 23 L. J. Q. B., 337; 7 W. R., 
 
 654, 1413 
 
 Lubbock V. Potts, 7 East, 449, 647 
 
 V. Rowcroft, 5 Esp., 50, 11 
 
 Lucas V. Jefferson Ins. Co., 6 Cow., 635, 
 
 1335 
 
 Luce V. Dorchester Mut. Ins. Co., 105 Mass., 
 
 297, 523, 527, 1464 
 
 V. Dorchester Mutual Fire Ins. Co., 110 
 
 Mass., 361, 825 
 
 Lucena v. Crawford, 3 B. & P., 75 ; 5 id., 270, 
 
 696 
 Luciani d. American Fire Ins. Co., 3 Whart., 
 167, 48 
 
 Luckie v. Bushby, 13 C. B., 864, 1293 
 
 Ludlow V. Bowne, 1 Johns., 2, 807 
 
 Ludlow V. Columbian Ins. Co., 1 Johns., 385, 
 
 1431 
 
 D. Union Ins. Co., 2 8. & R., 119, 
 
 813, 846 
 Ludwig V. Jersey City Ins. Co., 48 N. Y., 379, 
 
 355 
 
 Luling V. Atlantic Mut. Ins. Co., 51 N. T., 307 ; 
 
 45 Barb., 5 10 ; 50 id., 520 : 30 How. Pr., 
 
 69, 623 
 
 Lungstrass u. German Ins. Co.. 48 Mo., 201, 
 
 326 
 
 V. German Ins. Co., 57 Mo., 107, 
 
 1074 
 Lycoming County Ins. Co. ■». Schollenberger, 
 44 Penn. St., 259, 
 
 116, 377, 915, 1124, 1129 
 
 «. SchreflBer, 42 Penn. St., 188 ; 44 id., 269, 
 
 37, 517, 838, 1141 
 
 Lycoming Fire Ins. Co. v. Dunmore, 75 III., 
 
 14, 1118 
 
 Lycoming Ins. Co. v. Mitchell, 48 Penn. St., 
 
 867, 1406 
 
 ■». Rubin, 8 Chi. Leg. News, 150, 
 
 798, 816, 1089, 1143 
 
 e. Slockbower, 26 Penn. St., 199, 
 
 445, 1473 
 
 V. Updegraflf, 40 Penn. St., 811, 
 
 1004, 1131 
 
xlvi 
 
 TABLE OF CASES. 
 
 Lycoming Mut. Ins. Co. v. Sailer, 67 Penn. St , 
 
 108, 601 
 Lyman v. Bonney, 101 Mass., 562, 51 
 V. State Mutual Fire Ins. Co., 14 Allen, 
 
 339, 527, 656, 1321 
 
 Lynch v. Dalzell, 4 Bro. P. C, 431 ; Marsh on 
 
 Ins., 698, 710 
 
 ■». Dunsford, 14 East, 494, 246 
 
 0. Hamilton, 3 Taunt., 87, 246 
 
 Lynn v. Burgoyne, 13 B. Mon., 399, 373 
 
 Lynskey e. Asylum Life Ass. Co., 9 Ir. L.R., 
 
 299, 775 
 
 Lyon V. Commercial Ins. Co., 3 Bob. (La.), 
 
 266, 265, 662 
 
 V. M'Klew, 1 C. C. S., 47, 1354 
 
 Lysons v. Barrow, 5 L. J. (N. S.), C. P., 102, 
 
 54 
 
 M. 
 
 McAllister v. New England Life Ins. Co., 101 
 
 Mass, 558, 915 
 
 V. Pennsylvania Ins. Co., 28 Mo., 214, 187 
 
 1). Tennessee Fire and Marine Ins. Co., 17 
 
 Mo., 306, 649 
 
 McAndrews v. Bell, 1 Esp., 373, 239 
 
 McBride v. Marine Ins. Co., 7 Johns., 431, 
 
 147, 383 
 
 V. Republic Fire Ins. Co., 30 Wis., 662, 
 
 252, 469, 507, 1109 
 McCall V. Marine Ins. Co., 8 Cranch, 59, 145 
 McCalmont «. Murgatroyd, 3 Yeates, 27, 17 
 McCann u. -.Etna Ins. Co., 3 Neb., 198, 
 
 351, 1111 
 McCargo v. New Orleans Ins. Co., 10 Rob. 
 
 (La.), 202, 1039 
 
 v. Merchants Ins. Co., 10 Rob. (La.), 349, 
 
 1039 
 
 V. Merchants Ins. Co., 10 Rob. (La.), 334, 
 
 1018 
 McCarty ». Commercial Ins. Co., 17 La. (O. S.), 
 
 365, 709, 710 
 
 McCloskee v. Glascow and Clyde Marine Ins. 
 
 Co., 6 C. C. S., 3, 1249 
 
 McClure v. Lancashire Ins. Co., 6 Irish Jur. 
 
 (N. S.), 63, 1195 
 
 V. Mutual Life Ins. Co., 55 N. T., 651, 
 
 678 
 McColI v. Sun Mut. Ins. Co., 50 N. T., 832; 44 
 
 How. Pr., 453; 3 J. & Sp., 310, 399 
 McComas v. Covenant Mutual Life Ins. Co., 
 
 56 Mo., 573, 63, 746, 1108 
 
 McConnell v. Delaware Mutual Ins. Co., 18 
 
 111., 228, 170 
 
 McConochie v. Sun Mutual Ins. Co., 26 N. T., 
 
 477; 3 Bos., 99, 4 
 
 McCorkell v. Murison, 9 C. C. S., 149; 19 Scot. 
 
 Jur., 658, 1425 
 
 M'Corthy v. Abel, 5 East. 388; 1 Smith, 534, 
 
 1439 
 McCready v. Woodhull, 34 Barb., 80, 1095 
 McCulloch 0. Eagle Ins. Co., 1 Pick., 278, 
 
 839 
 
 0. Indiana Mutual Fire Ins. Co., 8 Blackf., 
 
 50, 670 
 
 T. Norwood, 58 N. Y., 563; 4 J. & Sp., 
 
 180, 1377 
 
 V. Royal Exchange Ass. Co., 3 Camp., 
 
 406, 1334 
 
 ■». Talladega Ins. Co., 46 Ala., 376, 
 
 680, 978, 1076 
 McDermott v. United States Ins. CoT, 3 S. & R. 
 604, 140 
 
 McDonald o. Black, 30 Ohio, 185, 1344 
 
 McDonell v. Beacon Fire Ins. Co., 7 U. C. C. P., 
 311, 878 
 
 McDonnell n. Carr, 1 Hayes & Jones, 356, 928 
 
 ■». Carr, Hayes, 875, 224 
 
 McDowell V. General Mutual Ins. Co., 7 La. 
 
 An., 684, 946 
 
 McEwan v. Guthridge, 13 Moore P. C. C. 304 ; 
 
 8 W. R., 265, 749 
 
 McEwen v. Montgomery County Mutual Ins. 
 
 Co., 5 111., 101, 863 
 
 V. Western Ins. Co., 1 Mich. N. P. (Brown), 
 
 118, 1389 
 
 McEvers v. Lawrence, HoflF. Ch., 172, 734, 885 
 McParland v. -.Etna Ins. Co., 6 W. Va., 437, 
 
 466, 773, 774 
 
 D. Peabody Ins. Co., 6 W. Va., 425, 
 
 466, 773, 1390 
 
 McFarlane v. Giannacopulo, 3 H. &N., 860; 
 
 28 L. J. Ex., 72, 898 
 
 McPaul V. Montreal Inland Ins. Co., 3 TJ. C. 
 
 Q- B., 59, 116, 840 
 
 McPee V. South Carolina Ins. Co., 3 McCord, 
 
 503. 145, 270, 457, 983 
 
 M'Gaw V. Ocean Ins. Co., 23 Pick., 405, 
 
 573, 579 
 
 McGivney v. PhcEnix Fire Ins. Co., 1 Wend., 
 
 85> 689 
 
 McGowan c. Charter Oak Life Ins. Co., 4 Am. 
 
 L. Rec, 559, 930 
 
 McGregor v. Horsefall, 3 Mee. & W., 320; 7 L. 
 
 J. (N. S.) Ex., 71 ; 2 Jur., 357, 378 
 
 McHugh V. Imperial Fire Ins. Co., 48 How. 
 
 Pr., 330, 1176 
 
 Mclntire v. Norwich Ins. Co., 103 Mass., 330, 
 
 1375 
 D. Bowne, 1 Johns., 329, 195 
 
TABLE or CASES. 
 
 xlvii 
 
 M'lver V. Henderson, 4 Mau. & Sel., 576, 
 
 1411 
 McKee v. Phoenix Life Ins. Co., 28 Mo., 383, 
 
 449 
 M'Kellar d. Henderson, Faculty Dec., 1810 to 
 1812, p. 15, 1263 
 
 McKibbin v. Peck, 89 N. T., 262, 
 
 , 575 
 
 M'Kim V. Phoenix Ins. Co., 2 Wash. C. C, 89, 
 
 1477 
 
 M'Kurdy e. North British Ins. Co., 20 C. C. 8., 
 
 . 463; 80 Scot. Jur., 235, 879 
 
 McLachlan v. iEtna Ins. Co., 4 Allen N. B., 
 
 173, 360, 878 
 
 M'Lanahan o. Universal Ins. Co., 1 Pet., 170, 
 
 241, 375, 980, 1205, 1256 
 
 McLaren <o. Hartford Fire Ins. Co., 5 N. T., 
 
 151 ; Edm. S. C, 210, 96 
 
 McLaughlin «. Atlantic Ins. Co., 57 Me., 170, 
 
 1512 
 
 e. "Washington County Mut. Ins. Co., 23 
 
 Wend., 525, 719, 1127 
 
 M'Laws V. United Kingdom Temp, and Gen- 
 eral Prov. Institution, 23 C. C. S., 550; 
 33 Scot. Jur., 286, 379 
 
 McLean c. Republic Fire Ins. Co., 3 Lans., 
 421. 1221 
 
 McLellan v. Maine Fire and Marine Ins. Co., 
 12 Mass., 246, 808 
 
 McLoon V. Commercial Mutual Ins. Co., 100 
 Mass., 472, 1513 
 
 M'Loghlin e. Royal Exchange Ins. Co., 9 Ir. 
 L., 510, 224 
 
 McMahon o. Portsmouth Mutual Fire Ins. Co., 
 22 N. H., 15, 867 
 
 McMaster v. Insurance Co. of North America, 
 55 N. T., 222; 64 Barb., 536, 
 
 486, 1140 
 
 D. Shoolbred, 1 Esp., 237, 1424 
 
 McMasters o. Westchester County Mutual Ins. 
 Co., 25 Wend., 379, 1112, 1132 
 
 M'Millan c. Union Ins. Co., Rice, 248, 
 
 946 
 
 McQuaig V. Quaker City Ins. Co., 18 U. C. Q. 
 
 B.. 130. 386 
 
 c. Unity Fire Ins. Co., 9 U. C. C. P., 85, 
 
 558 
 
 McSwiney c. Royal Exchange Ass. Co., 14 Q. 
 
 B., 634; 19 L. J. Q. B., 222 ; 18 id., 193, 
 
 698, 1098 
 
 Maanss v. Henderson, 1 East, 835, 
 
 1097, 1290 
 
 Macdonald o. Law Union Fire and Life Ins. 
 
 Co., 9 L. R. Q. B., 328; 43 L. J. Q. B., 
 
 131; 22 W. R.. 630; 80 L. T. (N. S.), 
 
 545, 794 
 
 Macdougle e. Royal Exchange Ass. Co., 1 
 
 Starkie, 130; 4 Camp., 283; 4 Mau. & 
 
 Sel., 503, 1326 
 
 Macdowall v. Fraser, 1 Doug., 260, 1197 
 
 Mackay «. Rhiuelander, 1 Johns. C, 408, 
 
 796 
 Mackenzie d. Coulson, 8 L. R. Eq., 368, 
 
 1179 
 
 V. Shedden, 2 Camp., 431, 592 
 
 B. Whitworth, 10 L. R. Ex., 142 ; 1 Ex. D., 
 
 36, 717 
 
 Mackie v. European Ass. Co., 17 W. R., 987 ; 
 
 21 L. T. (N. S.), 102, 333 
 
 o. Pleasants, 2 Binn., 363, 808 
 
 Mackintosh v. Marshall, 11 Mee. & W., 116 ; 
 
 12 L. J. Ex., 337, 482 
 
 MacNair v. Coulter, 4 Bro. P. C, 450, 
 
 1474 
 Macomber v. Cambridge Mutual Fire Ins. Co., 
 
 8 Cush., 133, 787 
 
 9. Howard Fire Ins. Co., 7 Gray, 257, 
 
 747 
 Macy V. Whaling Ins. Co., 9 Met., 354, 286, 
 
 451, 1449, 1454 
 
 «. Mutual Marine Ins. Co., 12 Gray 497, 
 
 1267 
 Madison Ins. Co. e. Fellowes, 1 Disney, 217 ; 3 
 
 id., 128, 493, 763, 901 
 
 Madsden v. Phoenix Ins. Co., 1 So. Car., 24, 
 
 1118 
 Maggrath v. Church, 1 Caines, 196, 606, 618 
 Magnus v. Butlemer, 21 L. J. C. P. 119 ; 11 C. 
 
 B., 876; 16 Jur. 480, 1032,1327 
 
 Maher «. Hibernian Ins. Co., 6 Hun., (N. T.), 
 
 853, 460, 972, 1521 
 
 Mahony ®. National Widows Life Ass. Fund, 
 
 6 L. R. C. P., 253 ; 40 L. J. C. P. 203 ; 
 
 24 L. T. (N. S.;, 548; 19 W. R., 722, 
 
 681 
 Maine Mutual Marine Ins. Co. v. Swanton, 49 
 
 Me., 448, 1057, 1170 
 
 Malleable Iron Works c. Phoenix Ins. Co., 25 
 
 Conn., 465, 1080 
 
 Mallory v. Commercial Ins. Co., 9 Bos., 101 ; 
 
 18 How. Pr., 395, 848 
 
 c. Travelers Ins. Co., 47 N. T., 52, 
 
 42, 206, 684, 1302, 1361 
 Man V. Shiffner, 2 East, 523, 759, 1290 
 
 Manby v. Gresham Life Ass. Co., 29 Beav. 439 ; 
 
 31 L. J. Chan., 94 ; 7 Jur. (N. S.), 383 ; 
 
 4 L. T. (N. S.), 347 ; 9 W. R. 547, 743 
 Manchester and London Life Ass., In re, 5 L. 
 
 R Ch., 640; 9 L. R. Eq., 643; 39 L. 
 
 J. Ch., 595; 23 L. T. (N. S.), 382; 18 
 
 W. R., 1185, 841 
 
 Manfleld v. Maitland, 4 B. & A., 583. 573 
 
xlviii 
 
 TABLE OF CASES. 
 
 Manhattan Ins. Co. v. Barker, 7 Heiskell, 503, 
 
 1381 
 
 V. Stein, 5 Bush, 653, 859, 1109, 1386 
 
 V. Webster, 59 Penn. St., 227, 993 
 
 Manhattan Life Ins. Co. v. Warrick, 20 Grat- 
 
 tan, 614, 908 
 
 Manistee, The, 5 Biss., 381, 81 
 
 Manley v. Insurance Co. of North America, 
 
 1 Lans., 20, 104, 180, 650, 690 
 
 Manlove o. Bender, 39 Ind., 371, 958 
 
 V. Burger, 38 Ind., 211, 78, 1053, 1058 
 
 ■». Naw, 39 Ind., 289, 958 
 
 V. Naylor, 38 Ind., 424, 958 
 
 Mann v. Forrester, 4 Camp., 60, 213 
 V. Herkimer County Mutual Ins. Co., 
 
 4 Hill, 187, 75 
 
 V. Western Ins. Co., 19 U. C. Q. B., 190, 
 
 1138 
 Manning v. Gist, 3 Doug., 74, 370 
 V. Irving, 1 C. B., 168 ; 3 id., 784 ; 6 id. 391 ; 
 
 1 H. L. Cas., 287, 1417 
 
 ®. Newnham, 3 Doug., 130; 3 Camp, 624n., 
 
 1400, 1510 
 Mansur ®. Kew England Mutual Marine Ins. 
 
 Co., 12 Gray, 520, 1040 
 
 Marblehead Mutual Fire Ins. Co. v. Hayward, 
 
 3 Gray, 208, 154 
 
 Marblehead Mutual Ins. Co. v. Underwood, 3 
 
 Gray, 310, 851 
 
 Marcardier v. Chesapeake Ins. Co., 8 Cranch, 
 
 39, 200, 1431 
 
 Marchesseau v. Merchants Ins. Co., 1 Kob. 
 
 (La.), 438, 384, 556 
 
 Marco ». Liverpool and London Ins. Co., 35 
 
 N. T., 664, 399 
 
 Marcy v. Merchants Mut. Ins. Co., 19 La. An., 
 
 388, 731 
 
 V. Sun Ins. Co., 14 La. An., 262, 1063 
 
 v. Sun. Mut. Ins. Co., 11 La. An., 748, 
 
 494, 1243 
 Mariatigne v. Louisiana Ins. Co., 8 La. (O. S.), 
 
 65, 1041 
 
 Marine Fire Ins. Co. ■». Burnett, 39 Tex., 433, 
 
 1244. 
 Marine Ins. Co. v. Hodgson, 6 Cranch, 206, 
 
 539, 972 
 
 V. Hodgson, 7 Cranch, 333, 740 
 
 ■». Tucker, 3 Cranch, 357, 980, 1405 
 
 11. Stras, 1 Mumf., 408, 787, 1333 
 
 V. United Ins. Co., 9 Johns., 186, 
 
 574 
 
 s. Wilson, 3 Cranch, 187, 267 
 
 ■». Young, 1 Cranch, 333, 48 
 
 Marion v. Great Republic Ins. Co., 35 Mo., 
 
 148, 556 
 
 Mark v. JBtna Ins. Co., 29 Ind., 890, 350 
 
 Markey v. Mutual Benefit Life Ins. Co., 103 
 
 Mass., 78, 341, 1096 
 
 Marks v. Hamilton, 7 Exch., 323; 21 L. J. Ex., 
 
 109; 16 Jur., 152, 715 
 
 V. Hope Mut. Life Ins. Co., 117 Mass., 
 
 528. 342 
 
 V. Louisiana State Marine and Fire Ins. 
 
 Co., 3 Bob. (La.), 454, 580 
 
 V. Nashville Marine and Fire Ins. Co., 6 
 
 La. An., 136, 10, 1039, 1349 
 
 Marland v. Royal Ins. Co., 71 Penn. St., 393, 
 
 . 934 
 
 Marquis of Queensbuiy v. Scottish Union 
 
 Ins. Co., 1 C. C. S., 1213, 1333 
 
 Marrigney d. Home Mut. Ins. Co., 13 La. An., 
 
 338, 871, 1253, 1386 
 
 Marsden v. City and County Ass. Co , 1 L. B. 
 
 C. P., 232; 13 Jur. (N. S.), 76; -85 L. 
 
 J. C. P., 60; 1 H. & R., 53; 13 L. T. 
 
 (N. 8.), 465 ; 14 W. R., 106, 298, 833 
 
 V. Reid, 3 East, 573, 446 
 
 Marsh i>. Miur, 1 Brev., 134, 262, 487, 1030 
 
 v. Northwestern National Ins. Co., 3 
 
 Biss., 351, 910, 1319 
 
 «. Robinson, 4 Esp., 98, 79,710 
 
 Marshall v. Columbian Mutual Fire Ins. Co., 
 27 N. H., 157, 133, 308 
 
 ■». Delaware Ins. Co., 4 Cranch, 302; 3 
 
 Wash. C. C, 54, 18 
 
 o. Emperor Life Ass. Soc, 6 B. & S., 886; 
 
 1 L. R. Q. B., 35 ; 13 Jur. (N. S.), 293 ; 
 35 L. J. Q. B., 89; 13 L. T. (N. 8.), 
 281, 207 
 
 V. Nashville Mutual Fire Ins. Co., 1 
 
 Hump., 99, 1371 
 
 V. Parker, 3 Camp., 69, 1240, 1410 
 
 B. Union Ins. Co., 3 Wash. C. C, 357, 
 
 251 
 Martin «. Crokatt, 14 East, 446, 13 
 ■». Delaware Ins. Co., 2 Wash. C. C, 354, 
 
 ^. ^. , 416 
 ■». Fishing Ins. Co., 30 Pick., 389, 
 
 713, 983, 1107, 1848, 1519 
 
 V. Franklin Fire Ins. Co., 15 Am. L. Reg. 
 
 (N. 8.), 229, 67 
 V. Franklin Fire Ins. Co., 5 Ins. L. J., 
 
 144, 63 
 v. Penobscot Mutual Fire Ins. Co., 53 
 
 Me., 419, 1319 
 
 D. Salem Marine Ins. Co., 3 Mass., 420, 
 
 _,., „ „ , „ 1026 
 V. Sitwell, Holt K. B., 25; Show., 156, 
 
 1393 
 
 Travelers Ins. Co., 1 P. & F., 505, 44 
 
 Martine o. International Life Ins. Co., 53 N. 
 
 Y., 339; 63 Barb., 181; 5 Lans., 535i 
 
 905 
 
TABLE OF CASES. 
 
 xlix 
 
 Martineau v. Kitching, 7 L. R. Q. B., 436; 41 
 
 L. J. Q. B., 237, 1353 
 
 Martz v. Detroit Fire and Marine Ins. Co., 28 
 
 Mich., 201, 189 
 
 Marx c. National Marine and Fire Ins. Co., 25 
 
 La. An., 39, 348, 358 
 
 Maryland Fire Ins. Co. «. Wliiteford, 31 Md., 
 
 219, 1153 
 
 Maryland Ins. Co. v. Bathurst, 5 Gt. & J., 159, 
 
 35, 113, 484, 540, 779, 1017, 1108 
 
 e. Bosley, 9 G. & J., 337, 1509 
 
 «. Bossiere, 9 G. & J. 121, 308,400,986 
 
 V. Graham, 3 H. & J., 63, 68 
 
 e. LeRoy, 7 Cranch, 36, 416 
 
 0. Kuden, 6 Cranch, 338, 15, 307, 361 
 
 V. Woods, 6 Cranch, 29, 39, 209 
 
 Mason o. Agricultural Ins. Co., 16 TJ. C. C. P., 
 
 493, 553 
 
 V. Franklin Fire Ins. Co., 13 G. & J., 468, 
 
 1011 
 B. Harvey, 8 Exch., 819; 23 L. J. Ex., 
 
 336, 1131 
 B. Louisiana State Ins. Co., 1 Eob. (La.) 
 
 193, 821 
 
 e. Sainsbury, 3 Doug., 61, 1348 
 
 Masters o. Madison County Mutual Ins. Co. 
 
 11 Barb., 624, 85, 103, 672 
 
 Matthews v. General Mut. Ins. Co., 9 La. An., 
 
 590, 89 
 V. Howord Ins. Co., 11 N". Y., 9; 13 
 
 Barb., 234, 230, 1150 
 «. Queen City Ins. Co., 3 Cin. Sup. Ct., 
 
 109, 563, 1456 
 
 Matthie v. Potts, 3 B. & P., 33, 114 
 
 Mauran v. Insurance Cos., 6 Wall., 1, 217 
 
 Mavor v. Simeon, 3 Taunt., 497, n., 79 
 
 Mavro v. Ocean Marine Ins. Co., 9 L. R C. P., 
 
 595; 43 L. J. C. P., 339; 31 L. T. (N. 
 
 S.), 186 ; 10 L. R. C. P., 414, . 620 
 Maxwell v. Crown, 1 S. & D., 403, 660 
 
 v. Robinson, 1 Johns., 333, 440 
 
 May V. Buckeye Mut. Ins. Co., 35 Wis., 291, 
 
 301, 506, 1533 
 
 V. Christie, Holt N. P., 67, 233 
 
 V. Delaware Ins. Co., 19 Penn. St., 313, 
 
 891 
 Mayall v. Mitford, 6 A. & E., 670; 1 N. & P., 
 
 733;W. W. &D., 310, 1533 
 
 Maydew v. Forrester, 5 Taunt, 615, 315 
 
 o. Scott, 3 Camp., 305, 1050 
 
 Mayer v. Mutual Life Ins. Co., 38 la., 304, 926 
 
 Mayhew v. Phoenix Ins. Co., 33 Mich., 105, 
 
 335 
 
 Maynard e. Rhode, 1 C. & P., 360; 8 L. J. K. 
 
 B., 64, 1307 
 
 Mayne v. Walter, 3 Dong., 79, 810 
 
 D 
 
 Mayo V. Maine Fire and Marine Ins. Co., 4 
 
 Mass., 374, 578 
 0. Maine Fire and Marine Ins. Co., 13 
 
 Mass., 259, 389 
 
 0. Pew, 101 Mass., 555, 914 
 
 Mayor of New York «. Brooklyn Fire Ins. 
 
 Co., 43* N. Y. (4 Keyes), 465; 3 Abb. 
 
 Dec, 351 ; 41 Barb., 331, 489, 975 
 v. Exchange Fire Ins. Co., 42* N. Y. (3 
 
 Keyes), 436; 9 Bos., 424; 3 Abb. Dec, 
 
 361;34How. Pr., 103, 497 
 V. Hamilton Fire Ins. Co., 39 N. Y., 45; 
 
 10 Bos., 537, 763 
 
 Meagher «. .ffltna Ins. Co., 19 V. C. Q. B., 530, 
 
 971 
 
 c. ^tna Ins. Co., 30 U. C. Q. B., 607, 
 
 757, 1444 
 
 ■». Home Ins. Co., 10 U. C. C. P., 313, 
 
 970 
 Mead «. Davidson, 3 A. & E., 303 ; 4 L J. (N. 
 
 S.),K.B.,193;4N. &M.,701, 
 
 778, 1077 
 
 V. Northwestern Ins. Co., 7 N. Y., 530, 
 
 533, 1454 
 v. Westchester Fire Ins. Co., 3 Hun. (N. 
 
 Y.), 608, 339 
 
 Meadowcraft v. Standard Ins. Co., 61 Penn. 
 
 St., 91, 1001, 1078 
 
 Mechanics Fire Ins. Co. v. Nichols, 16 N. J., 
 
 410, 815, 819, 1144 
 
 Mechler v Phoenix Ins. Co., 38 Wis., 665, 
 
 469 
 Mecke v. Life Ins. Co., 8 Phila., 6, 1394 
 Medical and Invalid Life Ass. Co., In re (Spen- 
 cer's Case), 6 L. R. Ch., 363, 841 
 (Griffith's Case), 6 L. R. Ch., 374; 40 L. 
 
 J. Ch., 464; 24 L. T. (N. S.), 455; 19 
 
 W. R.,491, 841 
 
 Meech v. Philadelphia Ins. Co., 3 Whart., 473, 
 
 585 
 
 ®. Robinson, 4 Whart., 360, 613 
 
 Meeker v. Klemm, 11 La. An., 104, 618 
 
 Meema v. Niagara Dist. Ins. Co., 33 U. C. Q. 
 
 B., 214, C73 
 
 Meigs V. Mutual Marine Ins. Co., 2 Cush., 439, 
 
 1044, 1451 
 Meister o. The People, 31 Mich., 99, 
 
 113, 151 
 Melcher e. Ocean Ins. Co., 59 Me., 317, 503 
 
 V. Ocean Ins. Co., 60 Me., 77, 386 
 
 Mellen v. Hamilton Fire Ins. Co., 17 N. Y., 
 
 609; 5Duer,101, 160,853 
 
 n. National Ins. Co., 1 Hall (N. Y.), 452, 
 
 571 
 Mellish ■B. Andrews, 2 Mau. db Sol., 27; 15 
 
 East, 4; 16 id., 313, 15,433 
 
TABLE OF CASES. 
 
 Hellish V. Allnutt, 3 Mau.&Sel., 106, 
 
 605, 899 
 
 D. Bell, 15 East, 4, 1483 
 
 c. Staniforth, b Taunt., 499, 1050 
 
 Mellon 71. Bucks, 17 Martin (La.), 371, 783 
 J). Louisiana State Ins. Co., 17 Martin, 
 
 (La.), 563 ; 18 id., 424, 35 
 
 Melvill V. Stewart, 3 Faculty Dec, 254, 1046 
 Mennett o. Bonham, 15 East, 477, 629 
 
 Menzies «. North British Ins. Co., 9 C. C. S. 
 
 (N. S.), 694, 383 
 
 Mercantile Marine Ins. Co. v. Titherington, 5 
 
 B. & S., 765; 11 Jur. (N. S.), 63; 34 L. 
 
 J. Q. B., 11; 13 W. R., 141; 11 L. T. 
 
 (N. S.), 340, 1373 
 
 Mercantile Mut. Ins. Co. v. Calebs, 20 N. Y., 
 
 173, 1336 
 
 — — v. State Mutual Fire and Marine Ins. Co., 
 
 25 Barb., 319, 281 
 
 Merchants Ins. Co. v. Algeo, 31 Penn. St., 446, 
 
 1520 
 
 v. Algeo, 31 Penn. St., 330, 409, 1226 
 
 B. Clapp, 11 Pick., 56, 982, 1244 
 
 ®. Edmond, 17 Grat., 138, 297, 626 
 
 ®. Mazange, 22 Ala., 168, 695 
 
 ■». Morrison, 63 111., 343, 1267 
 
 v. Paige, 60 lU., 448, 778 
 
 Merchants and Manufacturers Ins. Co. v. Cur- 
 ran, 45 Mo., 142, 1490 
 
 V. Shillito, 15 Ohio St., 559, 395 
 
 ■». Washington Mut. Ins. Co., 1 Handy, 
 
 181, 408, 1459 
 
 Merchants and Tradesmens Ass. Soc, In re, 9 
 
 L. R. Eq., 694 ; 18 W. R., 725 ; 22 L. T. 
 
 (N. S.), 264, 840 
 
 Merchants Mut. Ins. Co. d. Blandin, 24 La. An., 
 
 112, 1364 
 
 v. Butler, 20 Md., 41, 574 
 
 V. Lacroix, 35 Tex., 249, 775 
 
 v. New Orleans Ins. Co., 24 La. An., 305, 
 
 1183 
 
 V. Sweet, 6 Wis., 670, 1270 
 
 D. Underwood, 1 Sandf., 474, 1216 
 
 «. Wilson, 2 Md., 217, 533, 535, 850, 1065 
 
 Merriam u. Middlesex Mutual Fire Ins. Co., 
 
 21 Pick., 162, 656 
 
 Merrick «. Germania Fire Ins. Co., 54 Penn. 
 
 St., 277, 560 
 
 V. Provincial Ins. Co., 14 U. C. Q. B., 439, 
 
 1457 
 Merrill v. Boyleston Fire and Marine Ins. Co., 
 
 3 Allen, 247, 1488 
 1). Farmers and Mechanics Mutual Fire 
 
 Ins. Co., 48 Me., 385, 161 
 
 — n. New England Life Ins. Co., 103 Mass., 
 
 345, 93 
 
 Merritt v. Niagara District Ins. Co., 18 U. C. 
 
 Q. B., 529, 861 
 
 Mershon v. National Ins. Co., 34 Iowa, 87, 
 
 181, 458, 1313 
 
 Messonier v. Union Ins. Co., 1 N. & MoC, 155, 
 
 11,202 
 
 Metcalfe v. Parry, 4 Camp., 123, 369, 446 
 
 Mey V. South Carolina Ins. Co., 3 Brev., 339, 
 
 184 
 
 Meyer «. Gregson, 3 Doug., 403, 1338 
 
 Michael v. Gillespy, 3 C. B. (N. S.), 627; 3 
 
 Jur. (N. S.), 1219; 26 L. J. C. P., 306, 
 
 361, 593 
 
 V. Mutual Ins. Co., 10 La. An., 737, 
 
 903, 965, 1283 
 
 V. Tredwin, 17 C. B., 551 ; 25 L. J. C. P., 
 
 83, 1244 
 
 Michigan State Ins. Co. v. Lewis, 30 Mich., 
 
 41, 473, 673 
 
 Mickey v. Burlington Ins. Co., 35 Iowa, 174, 
 
 769, 1154, 1313 
 
 Mickles v. Rochester City Bank, 11 Paige Ch., 
 
 118, 1839 
 
 Middlewood v. Blakes, 7 Term, 163, 412 
 
 Miles 7). Connecticut Mutual Life Ins. Co., 3 
 
 Gray, 580, 130 
 
 Millaudon «. Atlantic Ins. Co., 8 La. (O. S.), 
 
 558, 139, 993 
 
 D. New Orleans Ins. Co., 11 Martin (La.), 
 
 603, 197 
 
 V. New Orleans Ins. Co., 4 La. An., 15, 
 
 1029 
 
 ■». Western Marine and Fire Ins. Co., 9 
 
 La. (O. S.), 37, 1467 
 
 Miller v. Aldrich, 31 Mich., 408, 803 
 
 V. De Peyster, 3 Caines, 301, 1095 
 
 V. Eagle Life and Health Ins. Co., 3E. D. 
 
 Smith, 268, 1464 
 
 V. Life Ins. Co., 12 Wall., 385, 900 
 
 a. Mutual Benefit Life Ins. Co., 31 Iowa, 
 
 216, , 471, 477, 794 
 
 V. Mutual Benefit Ins. Co., 34 Iowa, 222, 
 
 816 
 n. Phoenix Ins. Co., 27 Iowa, 303, 
 
 1075 
 
 V. Russell, 1 Bay., 309, 430, 1252 
 
 0. South Carolina Ins. Co., 2 McCord, 336, 
 
 786, 1259 
 
 e. Tate, 12 La. An., 160, 375 
 
 «. Tetherington, 7 H. & N., 954; 8 Jur. 
 
 (N. S.), 1039; 81 L. J. Ex., 363; 10 W. 
 
 R., 356; 9 L. T. (N. B.), 231 ; 6 H. & 
 
 N., 278; 7 Jur. (N. S.), 214; 30 L. J. 
 
 Ex., 217 ; 3 L. T. (N. 8.), 893, 397 
 V. Western Farmers Ins. Co., 1 Handy, 
 
 808, 653 
 
TABLE OF CASES. 
 
 li 
 
 Miller c. Woodfall, 8 El. &B1., 493; 4 Jur. (N. 
 
 S.), 303 ; 27 L. J. Q. B., 120, 81 
 
 Milles c. Fletcher, 1 Doug., 231, 13, 1411 
 
 Milligan v. Equitable Ins. Co., 16 U. C. Q. B., 
 
 314, 715 
 Milliken v. Kidd, 5 Ir. Eq., 396, 1354 
 Mills v. Albion Ins. Co., 6 S. •& D., 409; 5 id., 
 
 930, 887 
 
 V. Albion Ins. Co., 4 C. C. S., 575, 887 
 
 o. Campbell, 2 You. & Coll., 389, 
 
 449,954 
 
 e. Farmers Ins. Co., 37 Iowa, 400, 1002 
 
 V. Insurance Co., 5 Phila., 28, 754 
 
 Miltenberger o. Beacom, 9 Penn. St, 198, 
 
 362, 509 
 Milward v. Hibbert, 3 A. & E., 120; 11 L. J. 
 
 (N. S.) Q. B., 137 ; 6 Jur., 706, 396 
 Miner c. Judson, 3 Hun. (N. T.), 441 ; 3 Lans., 
 
 300; 5K Y. S. C.,46, 273 
 
 e. Phoenix Ins. Co., 27 Wis., 693, 469 
 
 Minett o. Anderson, Peakes N. P., 277, 1448 
 
 V. Forrester, 4 Taunt, 541 n, 1290 
 
 Minturn v. Columbian Ins. Co., 10 Johns., 75, 
 
 90 
 
 o. Manufacturers Ins. Co., 10 Gray, 501, 
 
 996 
 
 f). "Warren Ins. Co., 3 Allen, 86, 571 
 
 Minzeslieiner €. Continental Ins. Co., 5 J. & 
 
 Sp. (N. Y.), 333, 1493 
 
 Mississippi Mut Ins. Co. s. Ingram, 84 Miss., 
 
 315, 388 
 Mississippi Valley Life Ins. Co. o. Neyland, 9 
 
 Bush, 480, 517, 919 
 
 Mitchell «. Edie, 1 Term, 608, 13, 22 
 
 c. Gray, 1 S. & D., 398, 1333 
 
 o. Home Ins. Co., 33 Iowa, 431, 
 
 379, 534, 694, 840, 1314 
 f>. Lycoming Mutual Ins. Co., 51 Penn. 
 
 St., 403, 869, 1089 
 e. New England Marine Ins. Co., 6 Pick., 
 
 117, 1063 
 
 V. Union Life Ins. Co., 45 Me., 104, 
 
 686, 1241 
 Mittlebcrger v. British American Ass. Co., 3 
 
 TJ. C. Q. B., 439, 961 
 
 Mix «. Hotchkiss, 14 Conn., 31. 803 
 
 Moadingcr v. Mechanics Fire Ins. Co., 3 Hall, 
 
 490, 1006 
 
 Mobile Dock and Ins. Co. «. McMillan, 81 
 
 Ala., 711, 539, 8S6, 1330 
 
 Moehring v. Mitchell, 1 Barb. Ch., 264; How. 
 
 App. Cas , 502, 401 
 
 Mohawk, Propellor, 8 Wall., 153, 578 
 
 Moir e. Royal Exchange Ass. Co., 6 Taunt, 
 
 241; 4 Camp., 84; 1 Marsh., 570; 3 
 
 Mau. & Sel., 461, 1239 
 
 Moliere v. Pennsylvania Fire Ins. Co., 5 
 
 Rawle, 343, 463, 1173 
 
 Monadnock Railroad Co. «. Manufacturers 
 
 Ins. Co., 113 Mass., 77, 1010 
 
 Monitor Ins. Co. v. Buffum, 115 Mass., 843, 
 
 363 
 Monitor Mutual Fire Ins. Co. o. Young, 111 
 
 Mass., 587, 802 
 
 Monk o. Union Mutual Life Ins. Co., 6 Rob. 
 
 (N. Y.), 455, 1295 
 
 Monmouth County Fire Ins. Co. v. Hutchin- 
 son, 21 N. J. Eq., 107. 1329 
 Monmouth Mutual Fire Ins. Co. v. Lowell, 59 
 
 Me., 504, 155 
 
 Monongahela Ins. Co. «. Chester, 43 Penn. St., 
 
 491, 1015 
 
 Monteath e. Crosse, Faculty Dec, 1787 to 1792, 
 
 p. 87, 371 
 
 Montgomery v. Egginton, 8 Term, 363, 592 
 
 ». Firemens Ins. Co., 16 B. IVfon., 437, 
 
 801, 548 
 Monticello, Propellor, o. MoUison, 17 How., 
 
 153, 1324 
 
 Montoya v. London Ass. Co., 6 Exch., 451 ; 31 
 
 L. J. Ex., 354, 1023 
 
 Montreal Ass. Co. v. McGillvray, 18 Moore P. 
 
 C. C, 87, 353 
 
 Moody V. jEtna Ins. Co., 3 Thompson, (N. S.), 
 
 173, 1337 
 
 V. Surridge, 3 Esp., 638, 1494 
 
 c. Webster, 3 Pick., 434, 318 
 
 Moore «. Atlantic Mut Ins. Co., 56 Mo., 843, 
 
 1074 
 
 c. Perpetual Ins. Co., 16 Mo., 98, 1020 
 
 0. Protection Ins. Co., 39 Me., 97, 
 
 543, 555, 753. 1047, 1141 
 V. Taylor, 1 A. & E., 35 ; 3 L. J. (N. S.) K. 
 
 B., 132; 3 N. & M., 406,823, 1005 
 «. Woolsey, 4 El. & Bl., 243 ; 34 L. J. Q. 
 
 B., 140; 1 Jur. (N. S.), 468, 159, 1131 
 Moran o. Joues, 7 El. & Bl., 533 ; 3 Jur. (N. 8.), 
 
 663; 36 L. J. Q. B., 187, 609 
 
 Morck «. Abel, 3 B. & P., 35, 1333 
 
 Mordecai o. Firemens Ins. Co., 13 Rich., 512, 
 
 784 
 Mordy e. Jones, 4 B. & C, 393; 3 L. J. K. B., 
 
 350; 6D. &R.,479, 582 
 
 Morean o. United States Ins. Co., 1 Wheat., 
 
 219; 3 Wash. C. C., 256, 1501 
 
 Morel e. Mississippi Valley Life Ins. Co., 4 
 
 Bush, 535, 1147 
 
 Morgan v. Insurance Co. of North America, 4 
 
 Dall., 455, 576 
 
 V. Oswald, 3 Taunt, 554, 431, 637 
 
 V. Price, 4 Ex. Ch., 615 ; 19 L. J. Ex., 201, 
 
 677 
 
lii 
 
 TABLE OF CASES. 
 
 Morland «. Isaac, 30 Beav., 389 ; 1 Jur. (N. 
 
 S.), 989 ; 34 L. J. Ch., 753, 1331 
 
 Morrell v. Irving Fire Ins. Co., 33 N. Y., 439; 
 
 3 Am. L. Reg. (N. 8.), 404, 1159 
 
 Morris «. Summerl, 3 Wash. C. C, 203, 374 
 Morrison v. Bartolomeo, 5 C. C. S. (3d ser.), 
 
 848, 1355 
 V. Muspratt, 4 Bing., 59; 5 L. J. C. P., 63 ; 
 
 12 Moore, 231, 1311 
 V. Tennessee Marine and Fire Ins. Co., 18 
 
 Mo., 262, 714, 1374 
 V. Universal Marine Ins. Co , 8 L. R. Ex., 
 
 197; 42 L. J. Ex., 115; 31 W. R., 774; 
 
 8 L. R. Ex., 40; 42 L. J. Ex., 17; 21 
 
 W. R., 196; 27 L. T. (N. S.), 791, 363 
 Morocco Land and Trading Co v. Fray, 11 
 
 Jur. (N. 8.), 76; 13 W. R., 310; 11 L. 
 
 T., 618, 742 
 
 Morse v. Buffalo Fire and Marine Ins. Co., 30 
 
 Wis., 534, 391, 753 
 
 Mortimer v. Broadwood, 17 W. R., 653 ; 20 L. 
 
 T. (N. S.), 398, 1463 
 
 Moses V. Brooklyn Life Ins. Co., 50 Ga., 196, 
 
 881 
 
 V. Columbian Ins. Co., 6 Johns., 319, 
 
 1397 
 
 V. Delaware Ins. Co., 1 Wash. C. C, 385, 
 
 241 
 
 «. Pratt, 4 Camp., 397, 592, 1234 
 
 ■». 8un Mut. Ins. Co., 1 Duer, 159, 
 
 1026, 1036, 1246 
 Moss V. Byrom, 6 Term, 379, 199 
 
 1). Smith, 9 C. B., 94; 19 L. J. C. P., 335; 
 
 14 Jur., 1008, 583 
 
 Motley V. Manufacturers Ins. Co., 29 Me., 337, 
 
 61 
 Motteux V. London Ass. Co., 1 Atk., 545, 
 
 430, 741, 1174 
 
 Mound City Ins. Co. ■». Curran, 43 Mo., 874, 
 
 273 
 
 Mound City Life Ins. Co. b. Huth, 49 Ala., 
 529, 1077, 1091 
 
 Mound City Mutual Life Ins. Co. v. Twining, 
 12 Kan., 475, 937 
 
 Mount V. Larkins, 8 Bing., 108 ; 1 L. J. (N. 8.) 
 C. P., 30, 417 
 
 ■». Harrison, 4 Bing., 388; 1 M. & P., 14 
 
 591 
 
 V. Waite, 7 Johns., 434, 1337 
 
 Mount Vernon Manufacturing Co. ■». Summit 
 County Mutual Fire Ins. Co., 10 Ohio 
 St., 847, 99 
 
 Moxon V. Atkins, 8 Camp., 200, 437 
 
 Mowry v. Charleston Ins. Co., 6 Rich., 146, 
 
 1399 
 
 V, Home Life Ins. Co., 9 R. I., 846, 
 
 378, 632, 686, 1072, 1472 
 
 Mueller v. Putnam Fire Ins. Co., 45 Mo., 84, 
 
 974, 1149 
 
 Muhleman v. National Ins. Co., 6 W. Va., 508, 
 
 940 
 
 Muir v. United Ins. Co., 1 Caines, 49, 8 
 
 Muller V. Thompson, 8 Camp., 610, 
 
 631, 1063, 1530 
 
 Mullet v. Shedden, 13 East., 304, 1411 
 
 Mulliner v. Guardian Mutual Life Ins. Co., 1 
 
 N. T. 8. C, 448, S13 
 
 Mulrey v. Shawmut Mut. Ins. Co., 4 Allen, 116, 
 
 340, 934 
 
 Mulry V. Mohawk Valley Ins. Co., 5 Gray, 541, 
 
 537, 972 
 
 Mulvey v. Gore District Mut. Ins. Co., 25 U. C. 
 
 Q. B., 434, 1144 
 
 Mumford v. Church, 1 Johns. C, 147, 5 
 
 V. Hallett, 1 Johns., 433, 1099, 1468 
 
 V. Phoenix Ins. Co., 7 Johns., 449, 
 
 143 
 
 Murden v. South Carolina Ins. Co., 1 Mills' 
 
 Const, 96, 433, 1514 
 
 Murdock v. Chenango County Mut. Ins. Co., 2 
 
 N. Y., 210, 74, 130, 304, 654 
 
 Murgatroyd v. Crawford, 3 Yeates, 430; 3 
 
 Dall., 491, 809 
 
 Murray v. Alsop, 3 Johns. C, 47, 1196 
 
 «. Columbian Ins. Co., 4 Johns., 443, 
 
 986 
 
 V. Columbian IilBJ Co., 11 Johns., 302, 
 
 111, 385, 995 
 
 V. Harmony Fire and Marine Ins. Co., 
 
 58 Barb., 9, 219 
 
 V. Insurance Co. of Pennsylyania, 2 Wash. 
 
 C.-O., 186, 1477 
 
 V. United States Ins. Co., 2 Johns. C, 169, 
 
 1515 
 
 ■». United States Ins. Co., 3 Johns. C, 263, 
 
 36 
 
 Murrison v. Gibbon, Faculty Dec, 1810 to 
 
 1813, p. 148, 344 
 
 Murphrey v. Old Dominion Ins. Co., 5 Ins. L. 
 
 J., 397, 716 
 
 Murphy v. Boll, 4 Bing., 567; 6 L. J. C. P., 
 
 118; IM. &P., 498, 365 
 
 V. Harris, Batty, 306, 775 
 
 D. People's Equitable Mutual Fire Ins. 
 
 Co., 7 Allen, 339, 668, 976 
 
 ■». Mutual Benefit Life and Fire Ins. Co., 
 
 6 La. An., 518, 1804 
 
 Mussey v. Atlas Mut. Ins. Co., 14 N. Y., 79, 
 
 853 
 Mutual Ass. Co. v. Mahon, 5 Call, 517, 
 
 716, 1339 
 
 Mutual Ass. Soo. v. Korn, 7 Cranch, 896, 
 
 804 
 
TABLE OF CASES. 
 
 liii 
 
 Mutual Benefit Life Ins. Co. o. Atwood, 24 
 Gratl., 497, 908, 1530 
 
 0. Cannon, 48 Ind., 364, 
 
 135, 513, 820, 951, 977, 1297 
 
 V. Davis, 12 N. Y., 569, 1446 
 
 V. French, 2 Cin. Sup. Ct, 321, 918 
 
 • V. Holterhoff, 3 Cin. Sup. Ct., 379, 725 
 
 V. Jarvis, 23 Conn., 148, 1052 
 
 V. Miller, 39 Ind., 475, 309, 1397, 1538 
 
 S.Newton, 33 Wall., 33; 3 Dill. Cir. C, 
 
 154, 1189 
 
 e. Robertson, 59 111., 133, 933, 1538 
 
 V. Kuse, 8 Ga., 534, 938 
 
 B. Tisdale, 5 Ins. L. J. 137, 536 
 
 0. Wise, 34 Md., 582, 
 
 261, 846, 1191, 1296, 1303 
 Mutual Fire Ins. Co. v. Dcale, 18 Md., 26, 
 
 49, 1206 
 Mutual Life Ins. Co. c. Wager, 27 Barb., 354, 
 
 1303 
 
 0. Young, 5 Ins. L. J., 17, 336 
 
 Mutual Marine Ins. Co. v. Munro, 7 Gray, 246, 
 
 1470 
 
 Mutual Protection Ins. Co. v. Hamilton, 5 
 
 Sneed, 269, 171 
 
 Mutual Safety Ins. Co. b. Cohen, 3 Gill., 459, 
 
 1399 
 
 v. Hone, 3 N. Y., 235; 1 Sandf., 137, 
 
 1184, 1451 
 Myers v. Girard Ins. Co., 26 Penn. St., 193, 
 
 830,1358 
 
 ®. Keystone Mutual Life Ins. Co., 37 Penn. 
 
 St., 268, 62, 344, 372 
 
 N. 
 
 Nantes v. Thompson, 2 East, 385, 953 
 
 Napier o. Wood, 4 C. C. S., 19, 1033 
 
 Nash V. Union Mut. Ins. Co., 43 Me., 343, 
 
 935 
 Natchez Ins. Co. v. Buckner, 5 Miss., 63, 
 
 1478 
 
 B. Stanton, 10 Miss., 840, 431 
 
 National Bank of Scotland s. Forbes, 21 C. C. 
 
 8., 79, 1391 
 
 National Banking and Ins. Co. «. Knaup, 55 
 
 Mo., 154, 307, 1341 
 
 National Firths. Co. ®. Crane, 16 Md., 360, 
 
 169, 542, 870 
 National Ins. Co. o. Chamber of Commerce, 
 
 69 111., 23, 135, 745 
 e. Irwin, 1 Disney, 372, 480 
 
 National Life Ins. Co. v. Jones, 1 N. Y. S. C, 
 466, 1394 
 
 V. Minch, 53 N. Y., 144; 6 Lans., 100, 
 
 1391 
 
 National Mut. Ins. Co. ■». Pursell, 10 Allen, 
 
 331, 103 
 
 National Provincial Life Ass. Soc, In re 
 
 Fleming's Case, 6 L. R. Ch., 893, 
 
 841 
 
 National Traders Bank v. Ocean Ins. Co., 63 
 
 Me., 519, 1173 
 
 Nave B. Home Mutual Ins. Co., 37 Mo., 430, 
 
 550 
 
 Navone «. Haddon, 9 C. B., 30; 19 L. J. C. P., 
 
 61, 1504 
 
 Naylor v. Taylor, Moo. & M., 305, 310 
 
 V. Taylor, 9 B. & C, 718; 4 M. & R., 536, 
 
 11,310 
 
 Neal V. Erving, 1 Eap., 61, 1077 
 
 Neely v. Onondaga Counly Mut. Ins. Co., 7 
 
 Hill, 49, 474, 1493 
 
 Neilson v. Columbian Ins. Co., 3 Caines, 108, 
 
 1501 
 
 ■». Columbian Ins. Co., 1 Johns., 301, 
 
 406 
 
 V. Commercial Ins. Co., 3 Duer, 455, 
 
 94, 1209 
 Nelson v. Belmont, 31 N. Y., 36; 5 Duer, 310, 
 
 616 
 
 V. Louisiana Ins. Co., 17 Martin (La.), 
 
 389, 1061, 1494 
 
 ■». Salvador, Moo. & M., 309, 1338 
 
 V. Sufifolk Ins. Co., 8 Cush., 477, 227 
 
 Neptune Ins. Co. v. Robinson, 11 G. & J., 256, 
 
 353 
 Nesbitt V Berridge, 9 L. T. (N. S.), 588, 1352 
 
 V. Lushington, 4 Term, 783, 115, 1032 
 
 Nevada, State of, v. Cohn, 9 Nev., 179, 150 
 Neve V. Columbia Ins. Co., 2 McMullen, 220, 
 
 858 
 Nevins v. Rockingham Mutual Fire Ins. Co., 
 
 25 N. H., 22, 68, 719, 767 
 
 Neville v. Merchants and Manufacturers Ins. 
 
 Co., 19 Ohio, 453 ; 17 id., 193, 34r, 
 Newburyport Marine Ins. Co. v. Oliver, 8 
 
 Mass., 403, 139 
 
 Newby ®. Reed, 1 W. Bl., 416, 453 
 
 New Castle Fire Ins. Co. ». Macmorran, 3 
 
 Dow., 355, 1516 
 
 Newcomb v. Cincinnati Ins. Co., 22 Ohio St., 
 
 382, 1344 
 
 Newell V. Norton, 3 Wall., 357, 1334 
 
 New England Fire and Marine Ins. Co. v. 
 
 Schettler, 38 111., 166, 873, 1073 
 
 D. Wetmore, 33 111., 221, 78, 158, 270, 
 
 651, 665, 694 
 
liv 
 
 TABLE OF CASES. 
 
 New England Ins. Co. ®. Robinson, 35 Ind., 
 
 536, 337, 886, 1109 
 
 New England Life Ins. Co. ■». Hasbrook, 33 
 
 Ind., 447, 886, 919 
 
 New England Mutual Eire Ins. Co. v. Bel- 
 knap, 9 Cush., 140, 152, 1055 
 
 V. Butler, 34 Me., 451, 804, 1057 
 
 Newhall v. Union Mutual Fire Ins. Co., 53 
 
 Me., 180, 651, 675 
 
 New Hampshire Mutual Fire Ins. Co. v. 
 
 Hunt, .SO N. H., 319, 113, 957 
 
 «. Rand, 34 N. H., 428, 804, 1056 
 
 New Hampshire Savings Bank v. Union 
 
 Mutual Fire Ins. Co., 38 N. H., 332. 
 
 77 
 Newlin v. Insurance Company of North 
 
 America, 30 Penn. St., 313; 5 Penn. 
 
 L. J., 116, 1511 
 Newman v. Home Ins. Co., 20 Minn., 432, 74 
 «. Niagara District Mut. Ins. Co., 35 U. 
 
 C. Q. B., 435, 1164 
 V. Springfield Fire and Marine Ins. Co., 
 
 17 Minn., 138, 
 
 63, 311, 833, 1075, 1083 
 Newmark v. Liverpool and London Ins. Co., 
 
 30 Mo., 160, 1141, 1370 
 
 New Orleans Mut. Ins. Co. v. New Orleans & 
 
 Jackson R'y Co., 30 La. An., 303, 
 
 231 
 Newson v. Douglass, 7 H. & J., 417, 
 
 484, 509, 566, 719, 997 
 Newton e. Insurance Co., 2 Dill. C. C, 154, 
 
 515 
 New York Belting Co. v. Washington Fire 
 Ins. Co., 10 Bos., 438, 1517 
 
 New York Central Ins. Co. v. National Pro- 
 tection Ins. Co., 14 N. Y., 85 ; 30 Barb., 
 468, 1096 
 
 V. Watson, 33 Mich., 486, 858 
 
 New York Equitable Ins. Co. ■». Langdou, 6 
 Wend., 633 ; 1 Hall, 226, . 288 
 
 New York Fire Ins. Co. s. Delavan, 8 Paige 
 Ch., 419, 740 
 
 New York Marine and Fire Ins. Co. ®. Rob- 
 erts, 4 Duer, 141, 299, 1232 
 New York Firemens' Ins. Co. v. DeWolf, 2 
 Cow., 56; 20 Johns., 214, 1376 
 
 V. Lawrence, 14 Johns., 46, 434 
 
 D. Walden, 13 Johns., 513, 376 
 
 New York Gas Light Co. v. Mechanics Fire 
 
 Ins. Co., 3 Hall, 108, 489, 1006 
 
 New York Ice Co. v. Northwestern Ins. Co., 
 
 31 Barb., 73; 30 How. Pr., 434, 
 
 1176 
 e. Northwestern Ins. Co., 23 N.Y., 357; 
 
 32 Barb., 534; 11 Abb. Pr., 419; 12 
 id., 414 ; 30 How. Pr., 434, 139 
 
 New York Ins. Co. v. Robinson, 1 Johns., 616, 
 
 1416 
 
 V. Roulet, 34 Wend., 505, 1336 
 
 ■». Thomas, 3 Johns. C, 1, 488, 1331 
 
 New York Life Ins. Co. ■». Best, 33 Ohio St., 
 
 105, 1191 
 
 V. Clopton, 7 Bush, 179, 907 
 
 ■». Flack, 3 Md., 841, 
 
 169, 182, 374, 819 
 
 V. Graham, 2 Duv., 506, 830, 846 
 
 ■». Hendren, 24 Grat., 536, 125, 908 
 
 New York State Marine Ins. Co. v. Protection 
 
 Ins. Co., 1 Story, 458, 1183 
 
 Niagara District Ins. Co. ■». Lewis, 13 U. C. C. 
 
 P., 133, Ilia 
 
 Niagara Fire Ins. Co. v. De Graff, 13 Mich., 
 
 134, 1314 
 
 Niblo v. North American Fire Ins. Co., 1 
 
 Sandf., 551, 383 
 
 Nichols V. Fayette Mutual Fire Ins. Co., 1 
 
 Allen, 63, 866, 1464, 1471, 1491 
 
 Nicholson v. Mercantile Marine Ins. Co., 106 
 
 Mass., 399, 409 
 
 ■». Power, 30 L. T. (N. S.), 580, 246 
 
 Nickells v. Maine Fire and Marine Ins. Co., 
 11 Mass., 253, 843 
 
 Nicolet V. Insurance Co., 3 La. (O. S.), 366, 
 
 388 
 
 Nicoll a. American Ins. Co., 3 W. & M., 539, 
 
 306, 398, 1198, 1537 
 
 Nielson v. De La Cour, 3 Esp., 619, 415 
 
 Nightingale v. State Mutual Life Ins. Co., 5 
 
 R. I., 38, 55, 1366 
 
 Nimick •». Mutual Benefit Life Ins. Co., 3 
 
 Brewster, 503, 1360 
 
 Noad V. Provincial Ins. Co., 18 U. C. Q. B., 
 
 584, 955, 970 
 
 Noble V. Klennoway, 3 Doug., 510, 
 
 1046, 1450 
 Nonnen v. Reid, 16 East, 176, 983 
 
 Noonan v. Hartford Fire Ins. Co., 21 Mo., 81, 
 
 1145, 1493 
 Norcross v. Insurance Co., 17 Penn. St., 439, 
 
 713 
 
 Norris v. Insurance Co. of North America, 3 
 
 Yeates, 84, 256, 308 
 
 North America Fire Ins. Go. c. Throop, 22 
 
 Mich., 146, 237 
 
 9. Zaenger, 63 111., 464, 826, 1141 
 
 North America Ins. Co. v. Whipple, 3 Biss., 
 418, 1167 
 
 North American Life and Accident Ins. Co. 
 V. Burroughs, 69 Penn. St., 43, 
 
 43, 1115, 1524 
 
 North America Life Ins. Co. ■». Wilson, 111 
 
 Mass., 542, 1394 
 
TABLE OF CASES. 
 
 Iv 
 
 North Berwick Co. «. New England Fire and 
 Marine Ins. Co., 53 Me., 336, 356 
 
 Nortli British Ins. Co. v. Hallett, 7 Jur. (N. S.), 
 1263; 9W. R., 880, 173 
 
 V. Tummock, 3 C. C. S. (N. S.), 1 ; 37 Scot. 
 
 Jur., 1, 1174 
 
 North British and Mercantile Ins. Co. ■». Mof- 
 fatt, 7 L. R. C. P., 35; 41 L. J. C. P., 
 1 ; 25 L. T. (N. S.), 663; 20 "W. R., 114, 
 
 728 
 
 Norwich and New York Transportation Co. 
 D. Western Massachusetts Ins. Co., 34 
 Conn., 561; 6 Blatch., 241; 12 Wall., 
 194, 1106 
 
 Norwich Fire Ins. Co. v. Boomer, 53 111.. 443, 
 349, 803, 839, 874, 1345 
 
 Norwich Ins. Co. v. Thojnpson, 1 Scot. Jur., 
 393, 1287 
 
 Norwood, Ex parte, 3 Biss., 504, 1185 
 
 Norwood B. Guerdon, 60 111., 353, 171 
 
 D. Resolute Fire Ins. Co., 4 J. & Sp. (N. 
 
 Y.), 553, 1185 
 
 Notman d. Anchor Ass. Co., 4 C. B. (N. S.), 
 476; 4 Jtir. (N. S.), 713; 27 L. J. C. 
 P., 375, 1368 
 
 Noyes v. Hartford Fire Ins. Co., 54 N. Y., 668, 
 
 38 
 
 V. Washington Ins. Co., 30 Vt., 659, 
 
 1108 
 
 Nute D. Hamilton Mutual Ins. Co., 6 Gray, 174, 
 
 763 
 
 Nutt e. Bourdieu, 1 Term, 323, 203 
 
 Nye V. Ayres, 1 E. D. Smith, 533, 1287 
 
 North Carolina Life Ins. Co. v. Powell, 71 N. 
 C, 389, 1389 
 
 North of England Oil Cake Co. v. Archangel 
 Maritime Ins. Co., 10 L. R Q. B., 349, 
 
 998 
 
 North of England Steamship Ins. Co,s. Arm- 
 strong, 5 L. R. Q. B., 344; 39 L. J. Q. 
 B., 81 ; 31 L. T. (N. S.), 822 ; 18 W. R., 
 520, 1476 
 
 North River Ins. Co. n. Lawrence, 3 Wend., 
 483, 1446 
 
 Northrup «. Mississippi Valley Ins. Co., 47 
 Mo., 435, 326, 357, 974 
 
 V. Railway Passengers Ass. Co., 43 N. Y. 
 
 (4 Hand.), 516; 3 Lans., 166, 
 
 1445 
 
 Northwestern Insurance Co. v. Atkins, 3 Bush, 
 328, 1104 
 
 Northwestern Iron Co. ®. Mtaa Ins. Co., 86 
 Wis., 78, 117, 363, 396 
 
 V. -,Etna Ins. Co., 23 Wis., 160; 31 id., 458, 
 
 887 
 
 Norton V. Lexington Ins. Co., 16 111,, 235, 33 
 
 Norton v. Phoenix Mutual Life Ins. Co., 36 
 Conn., 503, 372 
 
 B. Rensselaer Ins. Co., 7 Cow., 645, 
 
 1127 
 NorviUe v. St Barbe, 5 B. & P., 434, 294 
 
 o. 
 
 Oakman v. City Ins. Co., 9 R. J., 356, 963 
 V. Dorchester Mutual Ins. Co., 98 Mass., 
 
 57, 67, 693 
 
 Ohermeyer v. Globe Mutual Ins. Co., 43 Mo., 
 
 573, 874 
 
 O'Brien «. Commercial Fire Ins. Co., 6. J. & 
 
 Sp., 517, 732, 827 
 
 Ocean Insurance Co. ■». Carrington, 3 Conn., 
 
 357, 343 
 
 V. Fields, 2 Story, 59, 734, 789 
 
 «. Francis, 2 Wend., 64; 6 Cow., 404, 
 
 218, 1276 
 
 V. Polleys, 13 Pet., 157, 744, 1393 
 
 O'Connor ®. Hartford Fire .Ins. Co., 31 Wis., 
 
 160, 1105, 1139 
 
 Oddy V. Bovill, 2 East., 473, 1273 
 
 Odiorne v. New England Mutual Marine Ins. 
 
 Co., 101 Mass., 551, 1101 
 
 Odlin V. Insurance Co. of Pennsylvania 2 
 
 Wash, C. C, 312, 143 
 
 Ogden V. Ash, 1 Dall., 163, 1064 
 
 V. Columbian Ins. Co., 10 Johns., 373, 
 
 5, 1465 
 
 V. East River Ins. Co., 50 N. Y., 388, 
 
 380 
 
 ■». General Mutual Ins. Co., 3 Duer, 304, 
 
 578 
 
 V. Montreal Ins. Co., 4 U. C. C. P., 497, 
 
 1334 
 V. Mutual Ins. Co., 35 N. Y., 418; 4 Bos., 
 
 447; 8 id., 348, 1337 
 B. New York Firemens Ins. Co., 18 Johns., 
 
 35, 34 
 V. New York Firemans Ins. Co., 12 Johns., 
 
 114, 1338 
 
 V. New York Ins. Co., 10 Johns., 177, 
 
 5,34 
 O'Hara v. Carpenter. 83 Mich., 410, 1461 
 
 Ohde V. Northwestern Life Ins. Co., 40 Iowa, 
 
 357, 926 
 
 Ohl V. Eagle Ins. Co., 4 Mason, 173, 488, 689 
 Oldden v. McChesney, 5 S. & R., 71, 308 
 
 Oldman v. Bewlcke, 8 H. Bl., 577, n., 1137 
 Oliver v. Maryland Ins. Co. 7 Cranch, 487, 
 
 416 
 
Ivi 
 
 TABLE OF CASES. 
 
 Oliver v. Mutual Commercial Marine Ins. Co., 
 3 Curtis, 277, 845, 1166 
 
 V. Newburyport Marine Ins. Co., 3 Mass., 
 
 37, 1408 
 
 Olivera v. Union Ins. Co., 3 Wheat, 183, 
 
 34, 148 
 
 Oliverson v. Brightman, 1 C. & K., 360 ; 8 Q. B., 
 
 781 ; 15 L. J. Q. B., 374; 10 Jur., 175, 
 
 395 
 Olmstead v. Iowa Mut. Ins. Co., 34 Iowa, 503, 
 
 675 
 O'Niel V. Buffalo Tire Ins. Co., 3 N. Y., 133, 
 
 133, 1183, 1458, 1530 
 Oom V. Bruce, 13 East., 335, 1230 
 
 V. Taylor, 3 Camp., 204, 1050 
 
 Oppenheim v. Fry, 3 B. & 8., 875; 11 W. R., 
 
 735; 8 L. T. (N. S.), 385; 5 B. & B., 
 
 348; 33 L. J. Q. B., 367; 13 W. R., 
 
 831 ; 10 L. T. (N. S.), 539, 1512 
 
 Orchard v. JEtna Ins. Co., 5 TJ. C. C. P., 445, 
 
 79 
 O'Reilly v. Gonne, 4 Camp., 349, 431 
 
 V. Guardian Life Ins. Co., 60 N. Y., 169 ; 
 
 1 Hun., 460; 3 N. Y. S. C, 487, 
 
 911, 1110 
 
 V. Royal Exchange Ass. Co., 4 Camp., 
 
 346, 431 
 
 Orient Mut. Ins. Co. v. Wright, 23 How., 401, 
 
 385 
 Oriental Bank e. Tremont Ins. Co., 4 Met., 1; 
 
 719 
 Orrell v. Hampden Fire Ins. Co., 13 Gray, 431, 
 
 1885 
 Orrok «. Commonwealth Ins. Co., 21 Pick., 
 456, 483, 781, 843, 1312, 1439 
 
 Osacar v. Louisiana State Ins. Co., 17 Martin 
 (La.). 386, 719, 1045 
 
 Osgood V. DeGroot, 36 N. Y., 348, 1284 
 
 Osser V. Provincial Ins. Co., 13 U. C. C. P., 141, 
 
 878 
 
 Oswell V. Vigne, 15 East, 70, 648 
 
 Ougier v. Jennings, 1 Camp., 505, n., 438 
 
 Overton v. St. Louis Mutual Life Ins. Co., 39 
 
 Mo , 133, 394 
 
 Owen V. Farmers' Joint Stock Ins. Co., 57 
 
 Barb , 518 ; 10 Abb. Pr. (N. S), 166. n., 
 
 66, 673, 1133 
 
 Owens V. Holland Purchase Ins. Co., 56 N. 
 
 Y., 565 ; 1 N. Y. S. C, 285, 805, 461 
 
 P. 
 
 Pacific Ins. Co. d. Catlett, 4 Wend., 75 ; 1 id., 
 
 561, 995 
 
 V. Soule, 7 Wall., 433, 1863 
 
 Pacific Mail Steamship Co v. Great Western 
 Ins. Co., 65 Barb., 334, 1287 
 
 Pacific Mut. Ins. Co. ■». Guse, 49 Mo., 329, 
 
 155 
 
 Packard s. Agawam Mutual Fire Ins. Co. 2 
 
 Gray, '334, 667 
 
 Padclford v. Boardman, 4 Mass., 548, 
 
 608, 611 
 
 V. Providence Mutual Fire Ins. Co., 3 R. 
 
 L, 103, 134, 651 
 
 Paddock v. Commercial Ins. Co., 3 Allen 93, 
 786, 1027, 1370, 1445 
 
 V. Commercial Ins. Co., 104 Mass , 521, 
 
 843, 1313, 1497 
 
 V. Franklin Ins. Co., 11 Pick., 337, 
 
 386, 777, 1247, 1366 
 Page 7). Fry, 2 B. & P., 240; 3 Esp., 185, 
 
 119 
 Paine v. Agricultural Ins. Co., 5 N. Y. S. C, 
 
 619, 827, 1164 
 
 Palm V. Medina County Mutual Fire Ins. Co., 
 
 30 Ohio, 539, 339, 738, 1072 
 
 Palmer v. Blackburn, 1 Bing., 61 ; 7 Moore, 
 
 339, 379, 591 
 V. Penning, 9 Bing., 460; 2 M. & Scott, 
 
 634, 417 
 V. Marshall, 8 Bing., 79, 317; 1 L. J. (N. 
 
 S.), C. P., 19, 184, 417 
 V. Naylor, 10 Exch., 883; 8 id., 739; 23 L. 
 
 J. Ex., 328 ; 2 W. R., 621, 1413 
 
 ■». Pratt, 2 Bing., 185; 9 Moore, 358, 703 
 
 V. Warren Ins. Co., 1 Story, 360, 291 
 
 Palyart v. Leckie, 6 Mau. & Sel., 290, 1234 
 Paradise v. Sun Mut. Ins. Co., 6 La. An., 596, 
 
 194, 540, 563, 604 
 Parage «. Dale, 3 Johns. C, 156, 19 
 
 Pai-fltt V. Thompson, 11 Mee. & W., 393 ; 14 L. 
 
 J- Ex., 73, 1346, 1483 
 
 Park V. Hammond, 6 Taunt., 495; 4 Camp., 
 
 344; 2 Marsh., 189; Holt N. P., 80, 
 
 184 
 Parken v. Royal Exchange Ass. Co., 8 C. C. S., 
 
 365; 18 Scot. Jur., 147, 757 
 
 Parker v. Amazon Ins. Co., 34 Wis., 363, 
 
 518, 558, 1110 
 B. Arctic Fire Ins. Co., 1 N. Y. S C 397 • 
 
 59 N. Y., 1, ' 356 
 
 V. Beasley, 2 Mau. & Sel., 423, 1386 
 
 r>. Bridgeport Ins. Co., 10 Gray, 302, 
 
 1205 
 
 V. Eagle Fire Ins. Co., 9 Gray, 152, 1100 
 
 V. Jones, 13 Mass., 173, 296 
 
 ®. Potts, 3 Dow, 23, 1260 
 
 0. Union Ins. Co., 15 La. An., 688, 1347 
 
 Parkes v. Bott, 9 Sim., 388; 8 L. J. (N. S ) Ch 
 ^*' 1531 
 
TABLE OF CASES. 
 
 Ivii 
 
 Parkhurst v. Gloucester Fishing Ins. Co., 100 
 Mass., 301, 193 
 
 Parlcin «. Diclc, 11 East, 503; 2 Camp., 231, 
 
 647 
 
 0. Tunno, 2 Camp., 59 ; 11 East, 22, 
 
 418 
 Parks v. General Interest Ass. Co., 5 Pick., 84, 
 
 726 
 
 Parmelee v. Hoffman Fire Ins. Co., 54 N. Y., 
 
 198. 1140 
 
 Parmeter v. Cousins, 2 Camp., 235, 988 
 
 V. Todhunter, 1 Camp., 541, 13, 211 
 
 Parr e. Anderson, 6 East, 202, 817 
 
 Pariy v. Aberdein, 9 B. & C, 411; 4 M. & R., 
 
 843, 1418 
 
 ■». Asliley, 3 Sim., 97, 204 
 
 Parsons ». Bignold, 15 L. J-. Ch., 379; 18 Sim., 
 518, 1178 
 
 •0. Manufacturers Ins. Co., 16 Gray, 463, 
 
 436,587,599 
 
 T. Scott, 2 Taunt, 363, 1428 
 
 Partridge b. Life Ins. Co., 1 Dill. C. C, 139, 
 
 304 
 Patapsco Ins. Co. s. Briscoe, 7 G. & J., 293, 
 
 1473 
 
 «. Coulter, 3 Pet., 222, 1099, 1152 
 
 B. Smith, 6 H. & J., 166, 272, 789, 896. 
 
 V. Southgate, 5 Pet., 604, 3, 1397 
 
 Patch V. Phoenix Mutual Life Ins. Co., 44 Vt., 
 481, 986 
 
 Paterson v. Powell, 2 L. J. (N. S.) C. P., 13, 
 
 1335 
 
 B. Powell, 9 Bing., 330; 3 M. & Scott, 399, 
 
 1462 
 Patrick «. Commercial Ins. Co., 11 Johns., 14; 
 
 679, 818 
 
 B. Commercial Ins. Co., 11 Johns., 9, 
 
 1437 
 
 D. Eames, 3 Camp., 441, 1478 
 
 ®. Excelsior Life Ins. Co., 4 Hun. (E. Y.), 
 
 263, 1356 
 
 V. Farmers Ins. Co., 43 N. H., 631, 
 
 773, 839 
 
 V. nq,llet, 1 Johns., 341, 1250, 1257 
 
 n. Hallett 3 Johns. C, 76, 815, 1257 
 
 V. Ludlow, 3 Johns. C, 10, 183, 420 
 
 Pai-tridge v. Life Ins. Co., 1 Dill. C. C, 139, 
 
 304 
 
 Patten «. Merchants and Farmers Mutual Fire 
 
 Ins. Co., 38 N. H., 338, 669 
 
 B. Merchants and Farmers Mutual Fire 
 
 Ins. Co., 40 N. H., 375, 465 
 
 Patterson v. Continental Ins. Co., 18 U. C. Q. 
 
 B., 9, 229 
 
 V. Duguid, Bell's 8es. Cas., 281, 
 
 259 
 
 Patterson v. Harris, 1 B. & S., 836 ; 7 Jur. (N. 
 S.), 1276; 30 L. J. Q. B., 354; 3 B. & 
 S., 814; 9 Jur. (N. S.), 173, 186 
 
 o. Marine Ins. Co., 5 H. & J., 417, 147 
 
 V. Ritchie, 4 Mau. & Sel., 308, 1430 
 
 V. Triumph Ins. Co., 64 Mo., 500, 
 
 68, 141, 1114 
 
 Pattison v. Mills, 2 Bli. (N. R.), 519 ; 1 Dow & 
 
 C, 842, 834, 756, 1320 
 
 Pawson V. Watson, Cowper, 785 ; 1 Doug., 11, 
 
 n., 1206 
 
 Peabody v. Washington County Mut. Ins. Co., 
 
 20 Barb., 339, 66 
 
 Peacock v. New York Life Ins. Co., 30 K. Y., 
 
 293; 1 Bos., 338, 1301 
 
 Pear.son v. Amicable Ass. Co., 27 Beav., 239, 
 
 171 
 
 «. Commercial Union Ins. Co., 15 C. B. 
 
 (N. S.),304; 10 Jur. (N. S.),517; 33 L. 
 J. C. P., 85 ; 12 W. R, 351 ; 9 L. T. (N. 
 S.), 442; 8 L. R. C. P., 548; 42 L. J. C. 
 P., 164; 22 W. R., 100; 29 L. T. (1^. 
 S.), 279, 1033 
 
 Peck V. Nashville Fire and Marine Ins. Co., 6 
 La. An., 148, 1428 
 
 V. New London County Mut. Ins. Co., 33 
 
 Conn., 584, 505, 1070 
 
 Pechner v. Phoenix Ins. Co., 6 Lans., 411, 
 
 865, 1190 
 Pedder v. Mosely, 81 Beav., 159, 172 
 
 Peddle v. Quebec Fire Ass. Co., Stuart, 174, 
 
 388 
 Peele v. Merchants Ins. Co., 3 Mason, 27, 
 
 745, 1436 
 
 n. Northcote, 7 Taunt., 478; 1 Moore, 178, 
 
 1290 
 
 V. Suffolk Ins. Co., 7 Pick., 354, 39 
 
 Peirce v. Oceen Ins. Co., 18 Pick., 88, 
 
 1432 
 Pelly V. Royal Exchange Ass. Co., 1 Burr, 341, 
 
 1003 
 Penly v. Beacon Ins. Co., 7 Grant's Ch., 130, 
 
 331, 768 
 Pennebaker v. Tomlinson, 1 Tenn. Ch., 598, 
 
 102, 181, 1378 
 Pcnnell «. Chandler, 7 Chi. Leg. News, 227, 
 
 768, 1109 
 
 Penniman v. Tucker, 11 Mass., 66, 1053 
 
 Pennsylvania Ins. Co., v. Bowmaii, 44 Penn. 
 
 St., 89, 181 
 
 ■». Gottsman, 48 Penn. St., 151, 660 
 
 Penny v. New York Ins. Co., 8 Caines, 155, 
 
 385 
 
 Penson ®. Lee, 3 B. & P., 330, 1239 
 
 Pentz V. Receivers of .^Ina Ins. Co., 9 Paige, 
 
 Ch., 568; 3 Edw. Ch., 841, 1839 
 
Iviii 
 
 TABLE OF CASES. 
 
 Penzant ». National Ins. Co., 15 Wend., 453, 
 
 ■ 8,843,1438 
 People, The, v. Beigler, Hill & D., 133, 151, 180 
 
 V. Chapman, 5 Hun. (N. Y.), 323, 399 
 
 V. Liverpool, London & Globe Ins. Co., 2 
 
 N. Y. S. C, 268, 66, 261, 765 
 
 V. Hughes, 39 Cal., 257, 150 
 
 Peoples Equitable Mutual Fire Ins. Co. v. 
 
 Arthur, 7 Gray, 267, 154, 954 
 
 V. Babbitt, 7 AUen, 235, 154 
 
 Peoples Fire Ins. Co. v. Heart, 24 Ohio St., 
 
 331, 718 
 
 Peoples Mutual Fire Ins. Co. v. Allen, 10 Gray, 
 
 297, 153 
 
 0. Clark, 13 Gray, 165, 116, 398 
 
 Peoples Ins. Co. v. Straehle, 2 Cin. Sup. Ct., 
 
 186, 109, 1344 
 
 V. Spencer, 58 Penn. St., 853, 
 
 49, 374, 464, 582 
 Peopleston v. Kitchen, 3 Wash. C. C, 138, 
 
 259, 375 
 Peoria Marine and Fire Ins. Co. v. Anapow, 
 
 45 111., 86; 51 id., 283, 879 
 
 «. Botto,47Ill.,516, 1283 
 
 V. Frost, 37 111., 333, 78, 831 
 
 V. Hall, 13 Mich., 303, 471. 763, 798 
 
 •». Hervey, 84 111., 46, 361 
 
 V. Lewis, 18 111., 553, 
 
 885, 964, 976, 1008, 1117, 1526 
 
 '0. Perkins. 16 Mich., 380, 86, 973, 1003 
 
 ■». Walser, 33 Ind., 73, 
 
 271, 359, 851, 957, 976 
 
 v. Whitehill, 25 111., 466, 49, 775, 977 
 
 ». Wilson, 5 Minn., 53, 1194 
 
 Peppin V. Solomons, 5 Term, 496, 119 
 
 Perchard v. Whitmore, 3 B. & P., 155, n., 119 
 Percival o. Maine Mut. Ins. Co., 33 Me., 343, 
 
 377, 1206 
 Perkins «. Augusta Insurance and Banking 
 
 Co., 10 Gray, 312, 435, 480, 537 
 
 v. Equitable Ins. Co., 4 Allen (N. B.), 563, 
 
 364 
 ». New England Marine Ins. Co., 13 
 
 Mass., 315, 1015 
 
 V. Proud, 63 Barb., 430, 1338 
 
 B. Washington Ins. Co., 4 Cow., 645 ; 6 
 
 Johns. Ch., 485, 317, 883, 1067 
 
 Peron v. Frone, 1 Barn., K. B., 304, 118 
 
 Perrin i). Protection Ins. Co., 11 Ohio, 147, 
 
 1150, 1154 
 Perrins v. Marine and General Travelers Ins. 
 
 Co., 3 El. & El., 317; 6 Jur. (N. S.), 
 
 69; 29 L. J. Q. B., 17; 1 L. T. (N. S.), 
 
 27; 6 Jut. (N. S.), 627; 2 El. & El., 
 
 324; 29 L. J. Q. B., 243; 8 W. R., 568, 
 
 1525 
 
 Perrott v. Shearer, 17 Mich., 48, 1345 
 
 Perry v. Lorillard Fire Ins. Co., 6 Lans., 301, 
 
 96 
 
 V. Merchants Ins. Co., 25 Ala., 355 63 
 
 V. Newcastle Fire Ins. Co., 8 U. 0. Q. B., 
 
 363, 373, 1396 
 
 «. Ohio Ins. Co., 5 Ohio, 305, 848, 1019 
 
 ■». Provident Life Ins. Co., 99 Mass., 162, 
 
 1872 
 
 V. Provident Life Ins. Co., 103 Mass., 242, 
 
 1373 
 
 Perry County Mutual Ins. Co. v. Stewart, 19 
 
 Penn. St., 45, 123, 377, 713 
 
 Peters v. Delaware Ins. Co., 5 S. & E., 473, 
 
 453 
 ■». Phoenix Ins. Co., 3 S. & R., 25, 
 
 1252, 1438 
 
 V. Warren Ins. Co., 14 Pet., 99 ; 3 Sumn., 
 
 889; 1 Story, 463, 337 
 
 Peterson v. Mississippi Valley Ins. Co., 24 
 
 Iowa, 494, 1003 
 
 Petries v. Atchinson, 3 C. C. S., 511 ; 13 Scot. 
 
 Jur., 236, 215 
 
 Pettegrew v. Pringle, 3 B. & Ad., 514, 
 
 1239 
 Pettingill v. Hinks, 9 Gray, 169, 187 
 
 Petty V. Willson, 4 L. R. Ch., 574; 17 W. E., 
 
 778, 304 
 
 Peyton «. Hallet, 1 Caines, 363, 478 
 
 Phadenhauer «. Germania Life Ins. Co., 7 
 
 Heiskell, 567, 1357 
 
 Phelps V. Auldjo, 2 Camp., 350, 431 
 
 V. Gebhard Fire Ins. Co., 9 Bos., 404, 993 
 
 Philadelphia Ins. Co. v Mills, 44 Penn. St., 241, 
 
 754 
 
 «. Washington Ins. Co., 23 Penn. St., 350, 
 
 481, 1181 
 Philadelphia Life Ins. Co. c. American Life 
 
 and Health Ins. Co., 33 Penn. St., 65, 
 
 1183 
 Philadelphia Safe Deposit Co.*. Fame Ins. 
 
 Co., 9 Phila., 292, 165 
 
 Philbrook v. New England Mut. Ins. Co., 37 
 
 Me., 137, 308, 475, 870 
 
 Phillips V. Barber, 5 B. & A., 161, 1030 
 
 V. Champion, 6 Taunt., 3; 1 Marsh., 402, 
 
 1046 
 V. Eastwood, L. & G. temp. Sugdem., 270, 
 
 305 
 
 ®. Headlam, 2 B. & Ad., 380, 947 
 
 «. Irvine, 13 L. J. C. P., 145; 7 M. & G., 
 
 835; 8Scott. N. R.,3, 443 
 s. Knox County Mut. Ins. Co., 20 Ohio 
 
 174, 703 
 «. Louisiana Equitable Ins. Co., 36 La. 
 
 •^•. 404, 1357, 1359 
 
TABLE OF CASES. 
 
 Hx 
 
 Phillips V. Merrimack Mutual Fire Ins. Co., 10 
 Cush., 350, 60, 105 
 
 s. Nairne, 4 C. B., 343; 16 L.J. C. P., 
 
 194; llJur.,455, 1443 
 
 e. Perry County Ins. Co., 7 Phila.,673, 
 
 387 
 V. Protection Ins. Co., 14 Mo., 280, 
 
 544, 835, 1117 
 
 V. St Louis Perpetual Ins. Co., 11 La. An., 
 
 459. 30, 783, 843, 1018, 1443 
 
 Philpott c. Swann, 11 C. B. (N. S.), 270; 7 Jur. 
 
 (N. S.), 1291; 30 L. J. C. P., 358; 5 L. 
 
 T. (N. S.), 183, 583 
 
 Phtenix Fire Ins. Co. «. Cochran, 51 Penn. St., 
 
 143, 293, 1152 
 
 V. Gurnee, 1 Paige, 278, 1168 
 
 o. Philip, 13 Wend., 81, 525, 530 
 
 Phoenix Ins. Co. v. Favorite, 49 HI., 259, 
 
 726, 1009 
 
 V. Figuet, 7 Johns., 384, 1283 
 
 e. Hamilton, 14 Wall., 504, 73, 726 
 
 V. Hoflfheimer, 46 Miss., 645, 
 
 739, 1174 
 
 c. Lawrence, 4 Met. (Ky.), 9, 
 
 102, 110, 457, 665, 1484 
 
 V. McLoon, 100 Mass., 475, 1471 
 
 V. Mitchell, 67 111., 43, 1380 
 
 «. Manday. 5 Cold.. 547, 557, 976 
 
 s. Pratt, 3 Binn., 308, 812 
 
 «. Taylor, 5 Minn., 493, lia5, 1216 
 
 Phoenix Life Ass. Co., In re, 31 L. J. Ch., 749; 
 
 2 Johns. & H., 441, 1447 
 e. Sheridan, 8 H. L. Ca., 745; 7 Jur. (N. 
 
 S.), 174; 31 L. J. Q. B., 91; 3 L. T. 
 
 (N. S.), 564; 3 El. & El., 763, 942 
 
 Phyn 0. Royal Exchange Ass. Co., 7 Term, 
 
 505. 203, 412 
 
 Pierce c. Columbia Ins. Co., 14 Allen, 320, 
 
 1508 
 
 V. Empire Ins. Co., 63 Barb., 636, 1381 
 
 V. Nashua Fire Ins. Co., 50 N. II., 297, 
 
 334, 1385 
 
 o. Ocean Ins. Co., 18 Pick., 83, 9 
 
 o. Travelers Life Ins. Co., 34 Wis., 389, 
 
 1357 
 Pieschell v. Allnutt, 4 Taunt., 793, 629 
 
 Pike V. Merchants Mut. Ins. Co., 26 La. An., 
 
 392. 1019 
 c. Merchants Mut. Ins. Co., 26 La. An., 
 
 505. 709 
 
 Pillans V. Dalgeruo, Faculty Dec, 1808 to 1810, 
 
 p.l, 9^ 
 
 Pirn o. Reid, 6 M. & G., 1; 6 Scott N. R., 
 
 982; 13 L. J. C. P., 299, 120,389 
 
 V. Lewis, 2 F. & F., 778, 258 
 
 Pindar «. Continental Ins. Co., 38 N. T., 364, 
 
 747 
 
 Pindar v. Kings Connty Ins. Co., 36 N. T., 648, 
 
 1212 
 V. Resolute Fire Ins. Co., 47 N. Y., 114; 
 
 38 id., 364, 531 
 
 Pine e. Vanuxem, 3 Teates, 30, 801 
 
 Pinkham «. Morang, 40 Me., 587, 1883 
 
 Pino V. Merchants Mut. Ins. Co., 19 La. An., 
 
 214, 496, 922, 974 
 
 Pipon V. Cope, 1 Camp., 434, 115 
 
 Pirie v. Anderson, 4 Taunt.. 6.53, 485 
 
 «. Steele, 8 C. & P., 200; 2 M. & Rob., 49, 
 
 844 
 Pitney v. Glens Falls Ins. Co., 61 Barb., 335, 
 
 103, 534, 865, 993, 1127 
 Pitt V. Berkshire Life Ins. Co., 100 Mass., 500, 
 
 934 
 Plahto 9. Merchants and Manufacturers Ins. 
 
 Co., 33 Mo., 348, 349 
 
 Planche v. Fletcher, 1 Doug., 251, 933 
 
 Plant V. Eufaula Home Ins. Co., 41 Ga., 130, 
 
 1372 
 Plantamour v. Staples, 3 Doug., 1 ; 1 Term, 
 
 611 n., 1031, 1033 
 
 Planters Mut. Ins. Co. ■». Deford, 38 Md., 383, 
 
 486, 4fl8, 503, 557, 1134 
 
 9. Lyons, 38 Tex., 253, 876 
 
 Piatt V. Gore Distiict Fire Ins. Co., 9 U. C. C. 
 
 P., 405, 1136 
 
 Pleasants v. Maryland Ins. Co., 8 Cranch, 56, 
 
 1468 
 Plumb o. Cattaraugus Ins. Co., 18 N.T., 392, 
 
 459 
 Pohalski o. Mutual Life Ins. Co., 45 How. Pr., 
 
 504; 4 J. & Sp., 334; 56 N. Y., 640, 
 
 1366 
 Poingdestre v. Royal Exchange Ass. Co., R. & 
 
 M., 378. 843 
 
 Pointer v. Merchants Mut. Ins. Co., 20 La. 
 
 An.. 100. 1253 
 
 Pole «. Fitzgerald, Willes, 641; 4 Bro. P. C, 
 
 439, 703, 1041 
 Pollard V. Bell, 8 Term, 434, 331, 1515 
 V. Somerset Mutual Fire Ins. Co., 42 Me., 
 
 221, 107 
 
 Polleys V. Ocean Ins. Co., 14 Me., 141, 517 
 Pollock V. Donaldson, 3 Dall., 510, 293 
 
 Pomeroy v. Manhattan Life Ins. Co., 40 111., 
 
 398, 755, 1533 
 
 Pond o. King, 1 Wils., 191, 1410 
 
 V. Smith, 4 Conn., 397, 642 
 
 Pontifex V. Bignold, 3 M. & G., 63; 3 Scott N. 
 
 R., 890, 569 
 
 Pontz e. Louisiana State Ins. Co., 16 Martin 
 
 (La.), 80, 730 
 
 Poole D. Adams, 33 L. J. Ch., 639; 12 W R., 
 
 683; lOL. T. (N.S.),287, 1353 
 
Ix 
 
 TABLE OF CASES. 
 
 Poole v. Protection Ins. Co., 14 Conn., 47, 
 
 1508 
 
 Portage County Mut. Ins. Co. v. Stukey, 18 
 
 Ohio, 455, 773 
 
 ■». West, 6 Ohio St., 509, 771 
 
 Portsmouth Ins. Co. v. Brazee, 16 Ohio, 81, 
 
 14, 382, 1344 
 Post «. ^tna Ins. Co., 43 Barb., 351, 
 
 319, 738, 884, 1106 
 
 0. Hampshire Mutual Fire Ins. Co., 13 
 
 Met., 555, 281 
 
 o. Phoenix Ins. Co., 10 Johns., 80, 
 
 42y, 1408, 1480 
 Potter V. Campbell, 16 W. R.", 399, 597 
 
 V. Ocean Ins. Co., 3 Sumn., 27. 606, 844 
 
 V. Ontario Mut. Ins. Co., 5 Hill, 147, 8C4 
 
 V. Providence Washington Ins. Co., 4 
 
 Mason, 208, 606 
 
 V. Rankin, 6 L. R. Eng. & Ir. App., 83 ; 
 
 42 L.J. C.P., 169; 5 L. R.C.P., 341; 
 3 id., 562; 22 L. T. (N. S.), 347; 18 id., 
 712; 18 W. R., 607; 16 id., 1049; 13 
 L. J. C. P., 147 ; 37 id , 257, 31, 597 
 
 0. Spilman, 117 Mass., 322, 55 
 
 V. Suffolk Ins Co., 2 Sumn., 197, 1013 
 
 Potts V. Bell, 8 Term, 548; 2 Esp., 712, 646 
 
 V. Boyle, Faculty Dec, 1808 to 1810, p. 
 
 679, 1256 
 
 Pouverin v. Louisiana State Ins. Co., 4 Rob. 
 
 (La.), 2.S4, 69, 436 
 
 Powell jj. Gudgeon, 5 Mau. & Sel., 431, 1031 
 
 V. Hyde, 5 El. & Bl., 607; 2 Jur. (N. S.), 
 
 87; 25 L. J. Q. B., 65, 222 
 
 Power V. Butcher, 10 B. & C, 329; 8 L. J. K. 
 
 B., 217, 54 
 
 V. City Fire Ins. Co., 8 Phila., 566, 1205 
 
 «. Ocean Ins. Co., 19 La. (O. S.), 38, 110 
 
 V. Whitmore, 4 Mau. & Sel., 141, 613, 623 
 
 Powles 0. Innes, 11 Mee. & W., 10; 12 L. J. 
 
 Ex., 163, 710 
 
 Prall J). Mutual Protection Life Ins. Co., 5 
 
 Daly, 298, 373 
 
 Pratt B. New York Central Ins. Co., 55 N. Y., 
 
 505; 64 Barb., 589, 356, 1104 
 
 V. Union Mut. Ins.Co., 9 Bos., 97, 315 
 
 Prescott V. Union Ins. Co., 1 Whart., 398, 1257 
 Preston v. Greenwood, 4 Doug., 28, 1003 
 
 Price V. Bell, 1 Bast, 663, 221 
 
 V. Dupeau, 1 Brev., 452, 793 
 
 ». Noble, 4 Taunt., 128, 617 
 
 V. Phoenix Mutual Life Ins. Co., 17 Minn., 
 
 497, 63, 788, 847, 1196, 1197, 1305 
 
 Prieger v. Exchange Mut. Ins. Co., 6 Wis., 89, 
 
 1523 
 
 Priest «. Citizens Mutual Fire Ins. Co., 3 Allen, 
 
 602, 1107 
 
 Prince ®. Equitable Safety Ins. Co., 12 Gray, 
 
 527, 283 
 
 Prince v. Ocean Ins. Co., 40 Me., 481, 1399 
 
 Prince of Wales Ass. Co. v. Palmer, 25 Beav., 
 
 605, 736 
 
 Prince of Wales Life Ass. Co. v. Harding, El. 
 
 Bl. & El., 183 ; 4 Jur., (N.8.), 851 ; 276 
 
 L. J. Q. B., 297, 332 
 
 Pringle v. Hartley, 3 Atk., 195, 742, 903 
 
 Pritchai-d b. Merchants and Traders Mutual 
 
 Life Ins. Co., 3 C. B. (N. S.), 622; 4 
 
 Jur. (N. S.), 307; 37 L. J. C. P., 169, 
 
 943 
 Prichet v. Insurance Co. of North America, 3 
 Yeates, 458, 1473 
 
 Protection Ins.Co. v. Hall, 15 B. Mon., 411, 
 
 365, 556, 694 
 
 B. Pherson, 5 Ind., 417, 1137 
 
 v. Wilson, 6 Ohio St., 558, 69, 1001 
 
 Proudfoot V. Montefiore, 3 L. R. Q. B., 511 ; 15 
 
 W. R., 930; 36 L. J. Q. B., 335; 16 L. 
 
 T. (N. S.), 5S5, 245 
 
 Providence Life Ins. Co. v. Martin, 33 Md., 
 
 310, 43, 534, 884 
 
 Providence and Worcester R. R. v. Yonkers 
 
 ■; Ins. Co., 10 R. I., 74, 1004 
 
 Provident Life Ins. Co. v. Baum, 39 Ind., 336, 
 
 840 
 
 T. Fennel, 49 111., 180, 1525 
 
 Provincial Ins. Co. v. Mtna Ins. Co., 16 U. C. 
 Q. B., 135, 775 
 
 ■». Lapsley, 15 Gray, 263 , 1318 
 
 V. Leduc, 22 W. R., 929; 31 L. T. (N. S.), 
 
 43; 43 L.J. P. C, 49, 1103 
 
 Prows ®. Ohio Valley Ins. Co., 3 Cin. Sup. Ct., 
 
 14, 675 
 
 Pryce «. Security Ins. Co., 29 Wis., 270. 1320 
 
 Puller V. Glover, 13 East, 134, 593 
 
 ■». Halliday, 13 East, 494, £93 
 
 ». Staniforth, 11 East, 333, 593 
 
 Pupke V. Resolute Fire Ins. Co., 17 Wis., 378, 
 
 163 
 
 Putnam v. Mercantile Marine Ins. Co., 5 Met., 
 
 386. 691 
 
 Q. 
 
 Quebec Fire Ass. Co. «. St Louis, 7 Moore P. 
 
 C. C, 286, 1330 
 
 Quebec Marine Ins. Co. ■». Commercial Bank 
 
 of Canada, 3 L. R. P. C, 234; 7 Moore 
 
 P. C. C. (N.B.),1; 39 L. J. P. C, 53; 
 
 18 W. R., 769; 33 L. T. (N. 8.), 559, 
 
 1263 
 
TABLE OF CASES. 
 
 Ixi 
 
 Queen ®. Union Ins. Co., 2 Wash. C. C, 331, 
 
 1420 
 Queen of Spain v. Parr, 39 L. J. Ch., 73, 
 
 216 
 
 Quigley «. Mutual Life Ins. Co., 4 Am. Law 
 
 Rec, 559, 168 
 
 Quinn v. National Ass. Co., 1 Jones & Carey, 
 
 316, 525, 683, 801, 1203 
 
 Raber v. Jones, 40 Ind., 436, 732, 958 
 
 RadclifTi). Coster, Hoff. Ch, 98, 141 , 1328 
 
 RadcliflFe «. United Ins. Co., 9 Johns., 38, 
 
 208, 223 
 
 V. United Ins. Co., 7 Johns., 277, 
 
 208, 1276 
 Rafel «. Nashville Fire Ins. Co., 7 La. An., 
 
 244, 1010 
 
 RafiFerty o. New Brunswick Fire Ins. Co., 18 
 
 N. J., 480, 757 
 
 Railway Passengers Ass. Co. ■». Burwell, 44 
 
 Ind., 460, 46,836 
 
 0. Warner, 1 N. T. S. C, 31 Add., 400, 
 
 543 
 Raine o. Bell, 9 East, 195 , 431 
 
 Rainsford v. Royal Ins. Co., 1 J. & Sp., 453 ; 
 
 53N. Y., 636, 1365 
 
 Ralli V. Janson, 6 El. & Bl., 433; 3 Jnr. (N. S.}, 
 
 566; 25 L.J. Q;B., 300, 1504 
 8. Universal Marine Ins. Co., 4 DeC, F. 
 
 & J., 1; 81 L. J. Ch., 313; 8 Jur. (N. 
 
 S.), 495; 10 W. R., 378; 6 L. T. (N. 
 
 S.), 34, 1476 
 
 Ralston u. North British Ins. Co., 10 Scot. Jur., 
 
 53, 1309 
 
 v. Union Ins. Co., 4 Binn., 386, 19 
 
 Ramsay Woolen Cloth Co. v. Mutual Fire Ins. 
 
 Co., 11 U. C. Q. B., 516, 970, 861 
 
 Ramstrom v. Bell, 5 Mau. & Sel., 267 , 1314 
 Randall v. Cockran, 1 Ves., 98, 1331, 1353 
 Rankin v. Andes Ins. Co., 47 Vt., 144, 717 
 
 Bann ■». Home Ins. Co., 59 N. Y., 387 , 133 
 Rapp V. AUnutt, 15 East, 601 , 1814 
 
 Rathbone v. City Fire Ins. Co., 31 Conn., 193, 
 
 463,1114 
 Rawlins v. Desborough, 8 C. & P., 331 ; 3 M. 
 
 & Rob., 338, 265, 513, 735 
 
 Rawlinson v. Janson, 13 Bast, 223, 632 
 
 Rawls v. American Mutual Life Ins. Co., 27 
 
 N.Y.,283; 36 Barb., 357, 
 
 479,536, 684,1528 
 
 Rayner «. Godmond, 5 B. & A., 225, 1334 
 
 J). Ritson, 6B. & S., 888, 681 
 
 Read v. Bonham, 3 B, & B., 147 ; 6 Moore, 397, 
 
 1400 
 
 ■». Isaacs, 6 Moore, 437, .277 
 
 ». Mutual Safety Ins. Co., 3 Sandf., 54, 
 
 707, 1339 
 Real Estate Mutual Fire Ins. Co. v. Roessle, 1 
 
 Gray, 336, 340 
 
 Reaper City Ins. Co. v. Brennan, 58 111., 158, 
 
 40 
 
 V. Jones, 62 111., 458 , 468 
 
 Redfleld ®. Holland Purchase Ins. Co., 56 N. 
 
 Y., 354, 333,689,1323 
 
 Redman v. Loudon, 3 Camp., 503 ; 5 Taunt., 
 
 463; 1 Marsh., 136, 413 
 ■». Wilson, 14 Mee. & W., 476 ; 9 Jur., 714; 
 
 14L. J. Ex., 333, 1156 
 
 Redmond v. Smith, 7 M. & G., 457; 8 Scott N. 
 
 R., 350; 13 L. J. C. P., 159; 8 Jur. 711, 
 
 • 967, 1334 
 
 Reed v. Baird, Faculty Dec, 1808 to 1810, p. 
 
 688, 1186 
 
 D. Cole, 3 Burr., 1513, 111 
 
 V. Commercial Ins. Co., 3 Johns., 353, 
 
 211, 436 
 
 V. Pacific Ins. Co., 1 Met., 166, 75 
 
 Reeve v. Phoenix Ins. Co., 33 La. An., 319, 
 
 748 
 Reichard v. Manhattan Lifie Ins. Co., 31 Mo., 
 
 518, 735, 770 
 
 Reid V. Allan, 4 Exch., 336; 19 L. J. Ex., 39; 
 
 13 Jur., 1082, 968 
 
 V. Harvey, 4 Dow., 97, 248 
 
 V. McMillan, Faculty Dec, 1812 to 1814, 
 
 p. 407, 244 
 v. Piedmont & Arlington Life Ins. Co., 
 
 58 Mo., 421, 538, 830 
 
 Reimer v. Ringrose, 6 Exch., 363 ; 30 L. J. Ex., 
 
 175, 1505 
 
 Reis ■». Scottish Equitable Life Ass. Co., 3 H. 
 
 & N., 19; 3 Jur. (N. S.), 417; 26 L. J. 
 
 Ex., 279, 495 
 
 Regnier v. Louisiana State Fire and Marine 
 
 Ins. Co., 12 La. (O. S.), 336, 
 
 149, 553 
 
 Rex V. Gillson, 1 Taunt., 95; R.& R. C. C , 138, 
 
 150 
 
 V. Insurance Co., 3 Phila., 357, 387 
 
 Reyner v. Hall, 4 Taunt., 735, 333, 1051 
 
 V. Pearson, 4 Taunt., 663, 1051 
 
 Reynolds v. Accidental Ins. Co., 18 W. R. 1141 ; 
 
 33 L. T. (N. 8.), 820, 43 
 V. Commerce Fire Ins. Co., 47 N. Y., 
 
 597, 497, 664 
 ■». Mutual Fire Ins. Co., 34 Md., 280, 99 
 
Ixii 
 
 TABLE OF CASES. 
 
 Reynolds v. Ocean Ins. Co., 1 Met., 160, 
 
 28 
 
 V. Ocean Ins. Co., 23 Peck., 191, 1, 10, 
 
 376, 608, 890, 1439 
 
 Rhand b. Bobb, Faculty Dec, 1801 to 1807, p. 
 
 433, 1477 
 
 Rhind «. Wilkinson, 2 Taunt., 237, 119, 485, 
 
 697 
 
 Rliinelander v. Insurance Co. of Pennsylvania, 
 
 4Cranch,29, 25,1406 
 
 Rhodes e. Hunter, 2 H. & B., 581, 209 
 
 «. Railway Passengers Ins. Co., 5 Lans., 
 
 71, 46, 318 
 
 Rice V. Homer, 12 Mass., 230, 296, 1156 
 
 • V. New England Marine Ins. Co., 4 Pick., 
 
 489, 796 
 
 V. Provincial Ins. Co., 7 U. C. C. P., 548, 
 
 553, 715 
 
 V. Tower, 1 Gray, 426, 101, 650 
 
 Rich V. Parker, 7 Term, 705; 2 Esp., 615, 
 
 • 813 
 
 Richards v. Cowell, 3 Keb., 174, 966 
 V. Liverpool & London Ins. Co., 25 TJ. C. 
 
 Q. B., 400, 72 
 
 V. Marine Ins. Co., 3 Johns., 307, 985 
 
 V. Protection Ins. Co., 30 Me., 273, 377, 
 
 748 
 Richardson v. Anderson, 1 Camp. 43 n., 
 
 1077 
 V. Canada Farmers Mut. Ins. Co., 16 U. C. 
 
 C. P., 430, 676, 1143 
 
 V. London Assurance Co., 4 Camp., 94, 
 
 1043 
 
 e. Maine Ins. Co , 46 Me., 394, 1087 
 
 V. North Missouri Ins. Co., 57 Mo., 413, 
 
 951 
 • V. Stodart, Faculty Dec, 1781 to 1787, p. 
 
 299, 1432 
 
 Richmondville Seminary e. Hamilton Mut. 
 
 Ins. Co., 14 Gray, 459, 86, 91, 480 
 
 Rickards «. Murdock, 10 B. & C, 537 ; 8 L. J. 
 
 K. B., 210, 239, 534 
 
 Rickman i>. Carstairs, 5 B. & Ad., 651 ; 2 N. & 
 
 M., 560; 3 L. J. (N. S.), K. B. 28; 2 N. 
 
 & M., 562, 988, 1479 
 
 Riddlesbarger v. Hartford Ins. Co., 7 "Wall., 
 
 386, 770 
 
 Rider v. Ocean Ins. Co., 20 Pick., 259, 112, 
 
 527, 691, 1226 
 Ridsdale v. Newnham, i Camp., Ill ; 3 Man. 
 
 & Sel., 456, 1239 
 
 V. Shedden, 4 Camp., 107, 1237, 1314 
 
 Biggin V. Patapsco Ins. Co., 7 H. & J., 279, 
 300,374,410,429,1150 
 Riley «. Delafield, 7 Johns., 523, 
 
 570 
 
 Riley v. Hartford Ins. Co., 2 Conn., 368, 
 
 466, 600 
 
 fl. Ocean Ins. Co., 11 Rob. (La.), 255, 
 
 287, 1498 
 Ripley v. ^tna Ins. Co., 30 N. T., 136; 29 
 
 Barb., 552, 771 
 
 V. Astor Ins. Co., 17 How. Pr., 444, 
 
 60, 387, 76D 
 
 V. Insurance Co., 16 Wall., 386, 44 
 
 Rippstein v. St. Louis Mutual Life Ins. Co., 57 
 
 Mo., 86, 36, 58, 1108 
 
 Rising Sun Ins. Co. v. Slaughter, 30 Ind., 320, 
 
 951, 1316 
 Risley, Succession of, 11 Rob. (La.), 298, 
 
 175 
 Ritchie v. United States Ins. Co., 5 S. & R, 501, 
 
 1428, 1438 
 
 «. St. Barbe, 4 Taunt, 768, 119 
 
 Ritt V. Washington Fire and Marine Ins. Co., 
 
 41 Barb., 353, 336 
 
 Ritter v. Sun Mut. Ins. Co., 40 Mo., 40, 847 
 Rix ». Mutual Ins. Co., 30 N. H., 198, 
 
 283, 832, 916 
 Roach v. New York and Erie Ins. Co., 30 N. 
 
 Y., 546, 771 
 
 Robbins v. New York Ins. Co., 1 Hall, (N. Y.), 
 
 825, 571 
 
 Robert v. New England Life Ins. Co., 1 Disney, 
 
 355, 937 
 v. Traders Ins. Co., 17 Wend., 631; 9 
 
 Wend., 474, 177, 1335 
 V. Chenango County Mut. Ins. Co., 3 Hill, 
 
 501, 804 
 
 Robertson v. Atlantic Mut. Ins. Co., 5 J. & Sp. 
 
 (N. Y.), 442, 587 
 
 V. Carruthers, 2 Starkie, 571, 1400 
 
 V. Clarke, 1 Bing., 445 ; 8 Moore, 633, 
 
 780 
 V. Columbian Ins. Co., 8 Johns., 491, 
 
 407, 1338 
 
 V. Ewer, 1 Term, 127, 1037 
 
 V. French, 4 East, 130; 4 Esp., 246, 
 
 989 
 
 V. Hamilton, 14 East, 522, 697 
 
 V. Majorlbanks, 3 Starkie, 573, 1478 
 
 v. United States Ins. Co., 3 Johns. C, 251, 
 
 310 
 Robinson d. Clifford, 3 Wash. C. C, 1, 483 
 
 V. Commonwealth Ins. Co., 3 Sumn., 320, 
 
 1306 
 
 V. Corn Exchange Ins. Co., 1 Abb. Pr. (N. 
 
 S.),186; lRob.(N. Y.), 14, 53 
 
 V. Georges Ins. Co., 17 Me., 131, 
 
 139, 784 
 
 V. International Life Ass. Soc, 43 N. Y. 
 
 (3 Hand.), 54; 53 Barb., 450, 904 
 
TABLE OP CASES. 
 
 Ixiii 
 
 Robinson v. Jones, 8 Mass., 536, 421, 1277 
 
 V. Manufacturers Ins. Co., 1 Met., 143, 
 
 286, 588 
 
 o. Marine Ins. Co., 2 Johns., 89, 426 
 
 «. Mercer County Mut. Ins. Co., 27 N. J , 
 
 134, 661 
 
 «. Morris, 5 Taunt., 720, 645 
 
 e. Tobin, 1 Starliie, 336, 358 
 
 V. Touray, 1 Man. & Sel., 217; 3 Camp., 
 
 158, 1292 
 
 ». United Ins. Co., 1 Johns., 592, 52 
 
 Roche V. Ladd, 1 Allen, 436, 1316 
 
 Rockford Ins. Co. ■». Nels(\p, 65 111., 415, 
 
 113, 279, 458, 468, 682, 694, 1378 
 Rockingham Mutual Fire Ins. Co. o. Bosher, 
 
 39 Me., 253, 1843 
 
 Rockwell V. Mutual Life Ins. Co., 20 Wis., 335 ; 
 
 21 id., 548; 27 id., 372, 925, 1810 
 
 Rodi V. Rutgers Fire Ins. Co., 6 Bos., 23, 
 
 956 
 
 Rodocanachi c. Elliott, 8 L. R. C. P., 649; 42 
 L. J. C. P., 247; 21 W. R., 810; 28 L. 
 T. (N.S.),840; 9 L. R. C. P., 518; 43 
 L. J. C. P., 255; 81 L. T. (N. S.), 239, 
 
 1414 
 
 Roe V. Columbus Ins. Co., 17 Mo., 301, 549 
 
 Roehner «. Knickerbocker Life Ins. Co., 4 
 Daly. 512, 932 
 
 Rogers v. Charter Oak Life Ins. Co., 41 Conn., 
 97 343 
 
 e. Hosack, 18 Wend., 319, 30 
 
 V. Mechanics Ins. Co., 1 Story, 603 ; 2 id., 
 
 173, 383, 483. 615 
 
 V. Nashville Marine and Fire Ins. Co., 9 
 
 La. An., 537, 604 
 
 v. Niagara Ins. Co., 2 Hall (N. Y.), 86, 
 
 266 
 
 V. Niagara Ins. Co., 2 Hall (N. Y.), 559, 
 
 126 
 
 v. Traders Ins. Co., 6 Paige Ch., 583, 
 
 51, 75, 758, 759, 851, 1106 
 
 Roget V. Thurston, 2 Johns, C, 248, 404 
 
 Rohl «. Parr, 1 Esp., 444, 1030 
 
 Rohrbach v. -.Etna Ins. Co., 1 N. Y. S. C, 339, 
 
 690 
 
 Rolker v. Great Western Ins. Co., 42 N. Y. (3 
 Keyes), 17; 4 Abb. Dec, 76; 8 Bos., 
 222; 2 Sweeney, 275, 561 
 
 Rollins V. Columbian Mutual Fire Ins. Co., 
 25 N. H., 200, 61, 108 
 
 Roots 0. Cincinnati Ins. Co., 1 Disney, 138, 
 
 498 
 
 Roper 0. Lendon, 1 E1.& El., 825; 5 Jur. (N. 
 S.), 491 ; 28 L. J. Q. B., 260; 7 W. R., 
 441, 136, 837 
 
 Koscow V. Corson, 8 Taunt., 684, 198 
 
 Rose «. Medical Invalid Life Ass. Soc, 11 C. 
 
 C. S., 151, 345 ; 20 Scot. Jur., 534, 
 
 353, 535 
 Rosenheim v. American Ins. Co., 33 Mo., 230, 
 
 262, 1270 
 Rosetto V. Gurney, 11 C. B., 176; 20 L. J. C. 
 
 P., 257; 15 Jur., 1177, 1443 
 Ross «. Bradshaw, 1 W. Bl., 312, 1305 
 V. Commercial Union Ass. Co., 26 U. C. 
 
 Q. B.,522, 559 
 V. Commercial Union Ass. Co., 26 U. C. 
 
 Q. B., 559, 64, 510 
 
 ■». Hunter, 4 Term, 33, 199, 847 
 
 Rossifer v. Trafalgar Life Ass. Ass., 37 Bev., 
 
 377, 1083 
 
 Rotch V. Edie, 6 Term, 413, 1023 
 
 Roth V. City Ins. Co., 6 McLean, 334, 
 
 50 i, 1067 
 Rothwell «. Cooke, 1 B. & P., 173, 1229 
 
 Roumage v. Mechanics Fire Ins. Co., 18 N. 
 
 J., 110, 271, 1136 
 
 Rouse V. Insurance Company, 3 Wall. Jr., 367, 
 
 1256 
 Rousset 0. Insurance Company of North 
 
 America, 1 Binn., 439, 165 
 
 Routh V. Thompson, 13 East, 374; 11 id., 438, 
 
 697 
 Routledge «. Burrell, 1 H. Bl., 254, 
 
 271, 310, 1137 
 Roux V. Salvador, 1 Ring. N. C, 526 ; 1 Scott, 
 
 491; 1 Hodges, 49; 4 L. J. (N. S.), 
 
 C. P., 156; 3 Bing., N. C, 266; 4 
 
 Scott, 1; 3 Hodges, 209; 7 L. J. (N. 
 
 S.) Ex., 328, 1337, 1510 
 
 Rowley c. Empire Ins. Co., 86 N. Y., 550; 43* 
 
 N. Y. (3 Keyes), 557; 4 Abb. Dec, 
 
 131, 460, 863, 1068 
 
 Roxburgh «. Thompson, 22 C. C. S.,,1187, 
 
 804 
 Ruan V. Gardner, 1 Wash. C. C, 145, 1418 
 Rucker v. Allnutt, 15 East., 378, 447 
 
 V. Ansley, 5 Man. «& Sel., 25, 634 
 
 «. London Ass. Co., 2 B. & P., 432 n., 1046 
 
 ■». Lunt, 3 F. & F., 959, 216 
 
 D. Green, 15 East, 288, 1483 
 
 V. Palgrave, 1 Taunt, 419 ; 1 Camp., 557, 
 
 899. 
 Buckmaw v. Merchants Louisville Ins. Co., 5 
 
 Duer, 342, 28, 780, 784, 1026 
 
 Rugely «. Sun Mut. Ins. Co., 7 La. An., 279, 
 
 1259, 1433 
 Ruggles D. Chapman, 1 Hun. (N. Y.), 824; 2 
 
 N. Y. S. C, 600; 59 N. Y., 163, 399 
 Rundell v. Moore, 3 Johns. C, 36., 1093 
 
 Ruppert V. Union Mutual Life Ins. Co., 7 
 
 Rob. (N. Y.), 155, 75 
 
Ixiv 
 
 TABLE OF CASES. 
 
 Euse 11. Mutual Benefit Life Ins. Co , 23 N. 
 Y., 516; 36 Barb., 556; 24 N. Y., 653, 
 756, 931, 956 
 Euss V. Waldo Mut. Ins. Co., 53 Me , 187, 
 
 174, 249 
 
 Eussell's Policy. In re, 15 L. E. Eq., 26; 37 
 
 L. T. (N. 8.), 706, 173 
 
 Eussell V. Bangley, 4 B. & A., 396, 897 
 
 V. De Grand, 15 Mass., 35, 364 
 
 V. Dunskey, 6 Moore, 333, 89 
 
 ■». Meti-opolitan Ins. Co., 51 N. Y., 650, 
 
 531 
 
 «. New England Marine Ins. Co., 4 Mass., 
 
 82, 994 
 
 v. State Ins. Co., 55 Mo., 585, 118, 875 
 
 V. St. Nicholas Fire Ins. Co., 51 N. Y., 
 
 643, 531 
 
 V. Thornton, 4 H. & N., 788 ; 29 L. J. Ex., 
 
 9 ; 6 H. & N., 140; 30 L. J. Ex., 69 ; 6 
 Jur. (N. S.), 1080; 8 W. R, 615, 345 
 
 V. Union Ins. Co., 4 Dall., 431, 
 
 688, 1404 
 
 Eyan v. World Mutual Life Ins. Co., 41 Conn., 
 
 168, 493, 815, 1086 
 
 Eyder v. Commonwealth Ins. Co., 52 Barb., 
 
 447, 1160 
 
 V. Phoenix Ins. Co., 98 Mass., 185, 855 
 
 s. 
 
 Sadlers Co. ■». Badcock, 3 Alk., 654, 710 
 
 Sage V. Middletown Ins. Co., 5 Day, 409, 
 
 537, 1050 
 
 ■B. Middletown Ins. Co., 1 Conn., 239, 
 
 1050 
 Saidlier v. Church, 1 Caines, 397, n., 34 
 
 Sale V. Sun Mutual Ins. Co., 3 Rob. (N. Y.), 
 603, 891 
 
 Salisbury v. St. Louis Marine Ins. Co., 23 Mo., 
 553, 434 
 
 Saloucci «. Woodmass, 3 Dong., 345, 1373 
 Saltus V. Commercial Ins. Co., 10 Johns., 487, 
 
 516, 1397 
 
 v. Ocean Ins. Co., 13 Johns., 107, 
 
 385, 586 
 
 V. Ocean Ins. Co., 14 Johns., 138, 
 
 577, 607, 1503 
 
 ■». United Ins. Co , 15 Johns , 533, 
 
 144, 366 
 Salucci V. Johnson, 4 Doug., 334, 1379 
 
 Salvador «. Hopkins, 3 Burr., 1707, 357 
 
 Salvia v. James, 6 East., 571, 943 
 
 Samble v. Mechanics Fire Ins. Co., 1 Hall (N. 
 
 Y.), 560, 1163 
 
 Samuel v. Eoyal Exchange Ass. Co., 8 B. & C, 
 
 119; 6 L J. KB, 315, 1416 
 
 Sanborn v. Firemans Ins. Co., 16 Gray, 448, 
 
 537, 885, 1070 
 Sanders ®. Hillsborough Ins. Co., 44 N. H., 238, 
 
 68, 283, 562 
 Sanderson v. M'Cullom, 4 Moore, 5, 133 
 
 V. Symonds, 1 B. & B., 436 ; 4 Moore, 43, 
 
 131 
 
 Sandford v. Mechanics Mutual Fire Ins. Co , 
 
 12 Cush., 541, 183, 650 
 
 V. Trust Fire Ins. Co., 11 Paige Ch., 547, 
 
 338 
 Sands Ale Brewing Co., In re, 3 Biss., 175, 
 
 803 
 
 Sands v. New York Life Ins. Co.^ 50 N. Y., 
 
 626; 59 Barb., 556, ' 904 
 
 B. St. John, 36 Barb., 628, 1321 
 
 Sansom «. Ball, 4 Dall., 459, 614, 688 
 
 Sarah Ann, The Brig, 2 Sumn, 206, 780 
 
 Sarquy v. Hobson, 2 B. & C, 7 ; 4 Bing., 131 ; 
 
 3 D. & R., 193 ; 13 Moore, 474, 1031 
 
 Sarsfield v. Metropolitan Ins. Co., 61 Barb., 
 
 479; 43 How. Pr., 97, 655 
 
 Satterthwait v. Mutual Beneficial Ins. Ass., 14 
 
 Penn. St., 393, 357, 805 
 
 Saunders v. Frost, 5 Pick., 259, 803 
 
 Saurez v. Sun Mut. Ins. Co., 3 Sandf., 483, 6 
 
 Savage s. Corn Exchange Ins. Co., 36 N. Y., 
 
 655 ; 4 Bos., 1, 389 
 
 V. Howard Ins. Co., 53 N. Y., 503; 43 
 
 How. Pr., 463 ; 44 id., 40, 96 
 
 V. Pleasants, 5 Binn., 403, 31 
 
 Sawtell V. London, 5 Taunt., 359; 1 Marsh, 
 
 99> 238 
 
 Sawyer v. Coasters Mut. Ins. Co., 6 Gray, 321, 
 
 793, 1514 
 
 ■». Dodge County Mut. Ins. Co., 37 Wis , 
 
 503, 1001 
 
 V. Freeman, 35 Me., 543, 718 
 
 V. Maine Fire and Marine Ins. Co., 13 
 
 Mass., 391, 1397 
 
 Sayles v. Northwestern Ins. Co., 2 Curtis, 610, 
 
 1317 
 
 Scanlon v. Sceals, 5 Ir. L. E., 139; 6 id., 367; 
 
 13 id., 71, 1297 
 
 V. Union Fire Ins. Co. , 4 Biss., 511. 103 
 
 Scatchard «. Equitable Fire Ins. Co., 8 U. C. 
 
 C. P., 415, 715 
 
 SchaflFer v. Baltimore Marine Ins. Co., 33 Md., 
 
 109, 345 
 
 V. Kirk, 49 111 , 251, 375 
 
 V. Missouri Home Ins. Co., 46 Mo., 348, 
 
 345 
 
TABLE OF CASES. 
 
 Ixv 
 
 Schoetzel v. Germantown Fai-mers Mut. Ins. 
 
 Co, 32 Wis., 412, 127 
 
 Schaible ■» Washington Life Ins Co., 9 Pliila , 
 
 136, 538, 800 
 
 Sclienck «. Mercer County Mutual Fire Ins. 
 
 Co., 24 N. J., 447, 378, 523, 838, 869, 
 
 SchieflEelin v. New York Ins. Co., 9 Johns., 22, 
 
 218 
 
 Schmidt v. New York Union Mutual Fire Ins 
 
 Co., 1 Gray, 529, 148 
 
 V. Peoria Marine and Fire Ins. Co., 41 
 
 111., 295, 494, 529, 1521 
 
 V. United States Ins. Co., 1 Johns., 249, 
 
 1407 
 Schneider v. Provident Life Ins. Co., 24 Wis., 
 28, 43 
 
 Schnakoneg v. Andrews, 5 Taunt, 716, 
 
 1051 
 
 School District n. ^tna Ins. Co., 54 Me., 505 ; 
 
 63 id., 380, 1385 
 
 Schroeder v. Keystone Ins. Co., 2 Phila., 286, 
 
 773 
 
 D. Stock and Mut. Ins. Co., 46 Mo., 174, 
 
 778, 801, 1207 
 
 V. Thompson, 7 Taunt, 463 ; 1 Moore, 163, 
 
 433 
 
 o. Vaux, 15 East, 53; 3 Camp., 84 n., 
 
 631, 1320 
 Schnltz V. Merchants Ins. Co., 57 Mo., 331, 
 
 820, 951, 1529 
 
 v. Ohio Ins. Co., 1 B. Mon., 336, 1060 
 
 «. Pacific Ins. Co., 14 Fla., 73, 
 
 823, 1370, 1481 
 
 Schwartz «. Germania Life Ins. Co., 18 Minn., 
 
 448, 351 
 
 V. Insurance Co. of North America, 6 
 
 Binn., 378, 813 
 
 v. Insurance Co. of North America, 3 
 
 Wash. C. C, 117, 810 
 
 ». United States Ins. Co., 3 Wash. C. C, 
 
 170, 1331 
 
 Scoles D. Universal Life Ins. Co., 42 Cal., 523, 
 
 823, 1297 
 
 Scott V. Aveiy, 8 Ex., 487 ; 5 H. L. Cas., 811 ; 3 
 
 Jur. (N. S.), 815 ; 35 L. J. Ex., 308 ; 22 
 
 id., 157, 387, 1S7 
 
 v. Bourdillion, 5 B. & P.', 213, 1494 
 
 0. Home Ins. Co., 1 Bil. C. C, 105, 
 
 148 
 
 D. Insurance Co., 9 Phila., 366, 963 
 
 ; V. Irving, 1 B. & Ad., 605, 897 
 
 '■ v. Mcintosh, 3 Dow.. 322, 56 
 
 V. Miller, 7 8. & D., 5«; 5 Scot. Jur., 94, 
 
 537 
 
 V. Niagara District Ins. Co., 25 U. C. Q. 
 
 B.. 119, 991, 1112, 1131, 1144 
 
 E ■ 
 
 Scott «. Phoenix Ass. Co., Stuart, 354, 
 
 1133 
 
 V. Phoenix Ins. Co., Stuart 152, 137 
 
 V. Quebec Fire Ass. Co., Stuart, 147, 
 
 1534 
 
 «. Roosc, 3 Ir, Eq., 170, 1333 
 
 ^ 9. Sea Ins. Co., 3 C. C. S., 467, 537 
 
 B. Thompson, 4 B. & P., 181, 434 
 
 Scottish Amicable Life Ass. Soc. v. Fuller, 3 
 
 Ir. Eq., 53, 743 
 
 Scottish Marine Ins. Co. v. Turner, 4 H. L. 
 
 Cas., 811; 1 MacG. H. L. Cas., 334 ; 17 
 
 Jur., 631, 581 
 ■». Turner, 15 C. C. S., 38; 13 id., 653, 989; 
 
 23 Scot. Jur., 294, 455, 530, 581 
 
 Scougall ». Young, Faculty Dec, 1796 to 1801, 
 
 p. 166, 243 
 
 Scriba v. Insurance Co. of North America, 3 
 
 Wash. C. C, 107, 986 
 
 Scripture v. Lowell Mutual Fire Ins. Co., 10 
 
 Cush., 356, 1157 
 
 Scurry v. Cotton States Life Ins. Co., 51 Ga., 
 
 634, 487 
 
 Sea Fire and Life Ins. Co., In re. Ex parte 
 
 Grefenwood, 3 Sm. & G., 95, 
 Sea Ins. Co. v. Fowler, 31 Wend., 600, 848 
 s Gavin, 2 Dow. & C, 129; 4 Bli. (N. S.), 
 
 578; 5 8. & D., 525; 2 Scot Jur., 239, 
 
 445,679 
 
 Seabrook ». Underwriters' Agency, 43 Ga.,583; 
 
 49 id., 563, 346 
 
 Seagrave «. Union Marine Ins. Co., 1 L, R. C. 
 
 P., 305 ; 1 H. & R., 302 ; 12 Jur. (N. 
 
 S.), 358; 35 L. J. C. P., 173; 14 W. R., 
 
 690; 14L. T. (N. S.),479, 704 
 
 Seaman a. Fonereau, 2 Strange, 1183, 240 
 
 Seamans v. Loring, 1 Mason, 127, 
 
 64, 183, 560, 565, 701 
 Seavey v. Central Mutual Ins. Co., Ill Mass., 
 
 540, 1007 
 
 Seccomb v. Provincial Ins. Co., 10 Allen, 305, 
 
 409, 1453 
 Security Fire Ins. Co. v. Kentucky, Marine 
 
 and Fire Ins. Co., 7 Bush., 81, 885 
 Security Ins. Co. v. Bronger, 6 Bush., 146, 
 
 552, 816 
 
 V. Fay, 22 Mich., 467, 551, 858 
 
 Security Life Ins. Co. d. Gober, 50 Ga., 404, 
 
 93% 
 Sellar v. Mc Vicar, 4 B. & P., 23, 987 
 
 Semmes «. Insurance Cos., 13 Wall., 158 ; 36 
 
 Conn., 543, 761 
 
 Senat v. Porter, 7 Term, 158, 787 
 
 Seton ». Delaware Ins. Co., 3 Wash., C. C. 175, 
 
 1436 
 V. Low, 1 Johns., C. 1, 626 
 
Ixvi 
 
 TABLE OF CASES. 
 
 Settle V. St. Louis Perpetual Ins. Co., 7 Mo., 
 379, 417 
 
 Severence v. Continental Ins. Co., 5 Biss., 156, 
 
 1176 
 
 Sewell v. Royal Exchange Ins. Co., 4 Taunt., 
 8S6, 364, 639 
 
 V. United States Ins. Co., 11 Pick., 90, 
 
 1439 
 
 Sexton v. Montgomery County Mut. Ins. Co., 
 
 9 Barb., 191, 376, 864, 1089, 1113 
 
 Shader v. Railway Passengers Ass. Co., 3 Hun. 
 
 (N. T.), 424; 5 N. T. S. C, 643, 724 
 
 Shandi). Blackie, 21 C. C. S., 878; 31 Scot. 
 
 Jur., 486, 1384 
 
 Shannon v. Nugent, Hayes, 536, 687 
 
 Sharps. Gladstone, 7 East, 24; 3 Smith, 399, 
 
 600 
 
 ■». Whipple, 1 Bos., 557, 1288 
 
 Shaw «. Jeltaa, Ins. Co., 49 Mo., 578, 
 
 275 
 
 V. Berkshire Life Ins. Co., 108 Mass., 254, 
 
 934 
 
 ■5. Robherds, 6 A. & E., 75; 6 L.J. (N. S.), 
 
 K B., 106 ; 1 N. & P., 379, 653, 1149 
 Shawe v. Felton, 3 Bast, 109, 1475 
 
 ShawmutMut. Ins. Co.«. Stevens, 9 Allen, 332, 
 
 1089 
 
 Shawmut Sugar Co. v. Hampden Mut. Ins. Co. 
 
 12 Gray, 540, 562 
 
 Shear v. Phoenix Mutual Life Ins. Co., 4 Hun. 
 
 (N. Y.), 800, 913 
 
 Shearer v. Louisiana Ins. Co., 14 La. An., 809, 
 
 566 
 
 Shearman v. Niagai'a Fire Ins. Co., 46 N". T., 
 
 536 ; 3 Sweeney, 470 ; 40 How. Pr., 393, 
 
 1379, 1384 
 
 Shedden ®. Logan, Faculty Dec, 1781 to 1787, 
 
 p. 530, 847 
 
 Shee B. Clarkson, 13 East, 507, 1286 
 
 Sheldon v. Atlantic Fire and Marine Ins. Co., 
 
 36 N. Y., 460, 910 
 
 D. Connecticut Mutual Life Ins. Co., 35 
 
 Conn., 307, 917 
 
 V. Hartford Fire Ins. Co., 33 Conn., 285, 
 
 308, 1196 
 
 Shepbard v. Union Mutual Fire Ins. Co., 38 
 
 N. H., 232, 108, 65/5, 1385 
 
 Shepherd v. Chewter, 1 Camp., 274, 89 
 
 Sheridan v. Phoenix Life Ass. Co., El. Bl. & 
 
 EL, 156 ; 4 Jur. (N.S.), 831 ; 27 L. J. Q. 
 
 B.,337;7 W, R., 106, 943 
 
 Sheriff n. Potts, 5 Esp., 96, 418 
 
 Sherlock v. Globe Ins. Co., 1 Cin. Sup. Ct, 
 
 193, 24, 1154, 1352, 1474 
 
 Sherwood v. Buggies, 3 Sandf., 55, 1370 
 
 Shiff B. Ins. Co., 1 La. (O. 8.), 805, 891 
 
 Shiff e. Louisiana State Ins. Co., 18 Martin 
 
 (La.), 628, 632 
 
 Shiffner v. Gordon, 12 East, 396, 647 
 
 Shilling V. Accidental Death Ins. Co., 1 F- & 
 
 F., 116; 3 H. & N., 43; 36 L. J. Ex., 
 
 366; 37 id., 16, 700 
 
 Shirley v. Wilkinson, 3 Doug., 41 ; 1 id., 306, 
 
 n., 338 
 
 Shoemaker v. Glens Falls Ins. Co., 60 Barb., 
 
 84, 307, 666 
 
 ■». Smith, 2 Binn., 239, 1093 
 
 Shotwell V. Jefferson Ins. Co., 5 Bos., 347, 
 
 385, 1339 
 Shroudenbeck v. Phoenix Ins. Co., 15 Wis., 
 
 632, 189 
 
 Shurtleff v. Phoenix Ins. Co., 57 Me., 137, 
 
 856 
 Sibbald v. Hill, 2 Dow, 263 ; Faculty, Dec, 
 
 1808 to 1810, p. 303, 796 
 
 Siflken v. Allnut, 1 Mau. & Sel., 39, 633, 798 
 
 1>. Glover, 4 Taunt., 717, 638, 639 
 
 V. Lee, 5 B. & P., 484, 1379 
 
 Sillem B. Thornton, 3 El. & Bl., 868; 18 Jur., 
 
 748, 659 
 
 Silloway v. Neptune Ins. Co., 12 Gray, 73, 
 
 7,184,359,428,692,1507 
 Silva V. Linder, 2 Marsh, 437, 734 
 
 V. Low. 1 Johns. C, 184, 1256 
 
 Silverthorne v. Gillespie, 9 U. C. Q. B., 414, 
 
 1074 
 Simeon v. Bazett, 2 Mau. & Sel., 94, 
 
 634 
 
 Simeral v. Dubuque Mut Ins. Co., 18 Iowa, 
 
 319, 100,309,398 
 
 Simond v. Boydell, 1 Doug., 268, 1330 
 
 SimondS D. Hodgson, 3 B. & Ad., 50; 1 L.J. 
 
 (N.8.)K:.B.,51, 211 
 
 V. White, 3 L. J. K. B., 159 632 
 
 Simonton v. Liverpool, London and Globe Ins. 
 
 Co., 51 Ga., 76, 1195 
 
 Simpson v. Accidental Death Ins. Co., 2 C. B. 
 
 (N. S.), 357; 3 Jur. (N. S.), 1079; 26 
 
 L. J. C. P.. 289, 943 
 
 ®. Chai-leston Fire and Marine Ins. Co, 
 
 Dud. Ap. (8. 0, 239, 145 
 
 V. Mountain, 4 L. J. (N. 8.) Ch., 331, 
 
 205 
 
 O.Pennsylvania Fire Ins. Co.,38Penn. 
 
 St., 250, 857 
 
 v. Scottish Union Fire and Life Ins. Co., 
 
 9 Jur. (N. 8.), 71 1 ; 1 H. & M., 618 ; 33 
 L. J. Ch., 329, 56 
 
 B. Walker, 3 L. J. (N. 8.) Ch., 55, 1333 
 
 Sims V. Gurney, 4 Binn., 513, 609 
 
 V. State Ins. Co., 47 Mo., 54, 
 
 556, 920, 1105, 1203 
 
TABLE OP CASES. 
 
 Ixvii 
 
 Sinclair v. Maritime Passenger Ins. Co., 3 El. 
 
 & El., 478; 7 Jur. (N. S.), 367; 30 L. 
 
 J. Q. B., 77; 4 L. T. (N. S.), 15 ; 9 W. 
 
 K, 343, 45 
 
 Singleton ». Boone County Mut. Ins. Co., 45 
 
 Mo., 250, 92 
 
 Sinnissippi Ins. Co. e. Taft, 26 Ind., 240, 155 
 
 o. Farris, 26 Iml., 342, 155 
 
 V. Wheeler, 26 Ind., 336, 155 
 
 Siordett «. Hall, 4 Bing., 606, 1031 
 
 Siter o. Morrs, 13 Pean. St, 218, 286 
 
 Skidmore o. Desdoity, 3 Johns. C, 77, 649 
 
 Skipper e. Grant, 10 C. B. (N. S.), 237, 143 
 
 Slater o. Hayward Rubber Co., 26 Conn., 128, 
 
 614 
 
 Sleeper o. Union Ins. Co., 61 Me., 267, 565 
 
 Sleght o. Rhinelander, 1 Johns., 193; 3 id., 
 
 533, 500, 899, 1537 
 
 Sloat t). Royal Ins. Co., 49 Penn. St, 14, 869 
 Sloker e. Harris, 3 Mass., 409, 408 
 
 Slocum V. United States Ins. Co., 1 Johns. C, 
 
 152, 5 
 
 Small o. Gibson, 4 H. L. Cas., 353; 20 L. J. Q. 
 
 B., 153; 15 Jut., 335; 16 Q. B., 138, 
 
 141; 19 L. J. Q. B., 147; 14 Jur., 368, 
 
 1344 
 Smith o. Accident Ins. Co., 5 L. R Ex., 303; 
 
 39 L. J. Ex., 211; 18 W. R., 1107; 23 
 
 L. T. (N. S.), 861, 45 
 
 V. JGtna Life Ins. Co., 49 N. Y., 311, 1306 
 
 0. Bell, 3 Caines Cas., 153, 1436 
 
 e. Bissett, Faculty Dec, 1808 to 1810, p. 
 
 617, 255, 1249 
 B. Bowditch Mutual Fire Ins. Co., 6 Cnsh., 
 
 448, 1381 
 c. Cash Mutual Fire Ins. Co., 34 Penn. 
 
 St, 320, 476 
 
 c. Columbia Ins. Co., 17 Penn. St, 253, 
 
 668, 803 
 
 0. Delaware Ins. Co., 3 Wash. C. C, 127, 
 
 641 
 
 f). Delaware Ins. Co., 3 S. & R., 74, 638 
 
 V. Drake, Faculty Dec. 1808 to 1810, p. 
 
 344, 57 
 
 e. Dreever, 2 C. C. S., 494, 1425 
 
 c. Empire Ins. Co., 35 Barb., 497, 
 
 1085,1485 
 9. Farmers Mutual Fire Ins. Co., 19 Ohio 
 
 St, 387, 672 
 c.Flemming, 12 C. C. S., 138; 23 Scot. 
 
 Jur., 7, 1325,1477 
 
 o. Glens Falls Ins. Co., 66 Barb., 556, 47 
 
 o. Haverhill Mutual Fire Ins. Co., 1 
 
 Allen, 297, 1130 
 V. Kerr, 7 C. C. S. (3d ser.), 863; 41 Scot 
 
 Jur., 465, 1531 
 
 Smith B. Lascelles, 2 Term, 187, 276, 1450 
 
 V. Macneil, 2 Dow, 538, 485 
 
 «. Mechanics and Traders Ins. Co., 32 K. 
 
 Y., 399; 29 How. Pr., 384, 663, 1521 
 v. Mississippi Marine and Fire Ins. Co., 
 
 11 La. (O. S.), 142, 397 
 v. Mobile Navigation Ins. Co., 30 Ala., 
 
 167. 1453 
 V. Monmouth Mutual Fire Ins. Co., 50 
 
 Me., 96, • 107, 174 
 
 «. Mutual Life Ins. Co., 14 Allen, 336, 744 
 
 o. Newburyport Mut. Ins. Co., 4 Mass., 
 
 668, 34, 373 
 c. Reynolds, 1 H. & N., 221 ; 25 L. J. Ex., 
 
 337, 1462 
 
 •». Robertson, 2 Dow, 474, 29 
 
 0. Robinson, Hayes, 125, 1415 
 
 B. Saratoga County Mutual Fire Ins. Co., 
 
 1 Hill, 497; 3 id., 508, 178 
 
 «. Scott, 4 Taunt, 126, 228 
 
 <D. Surridge, 4 Esp., 25, 433 
 
 V. Touro, 14 Mass., 112, 1027 
 
 V. Universal Ins. Co., 6 Wheat, 176, 146 
 
 c. Williams, 3 Caines Cas., 110, 707 
 
 Snapp ». Firemans Ins. Co., 2 Handy, 353, 
 
 1498 
 o. Merchants and Manufacturers Ins. Co., 
 
 8 Ohio St, 458, 1035 
 
 Snell ■0. Delaware Ins. Co., 4 Dall., 430; 1 
 
 Wash. C. C, 509, 383 
 
 Snethen v. Memphis Ins. Co., 3 La. An., 474, 
 
 1249 
 Snow fl. Columbian Ins. Co., 48 N. Y., 624, 
 
 434 
 Snowden v. Phcenix Ins. Co., 3 Binn., 457, 
 
 428 
 Soares v. Thornton, 7 Taunt, 627; 1 Moore, 
 
 373, 198 
 
 Sohier i>. Norwich Fire Ins. Co., 11 Allen, 336. 
 
 899, 1015 
 Solicitors General Life Ass. Soc. ®. Lamb, 2 
 
 DgGt., J. & S., 251 ; 10 Jur. (N. S.), 
 
 739; 33 L. J. Ch., 436; 12 W. R, 941; 
 
 10 L. T. (N. S.), 702, 1351 
 
 Solly c. Whitmore, 5 B. & A., 45, 414 
 
 Solmes o. Rutgers Fire Ins. Co., 43* N. Y. (3 
 
 Keyes), 416; 4 Abb. Dec, 279; 8 Bos., 
 
 578 ; 5 Abb. Pr. (N. S.), 201, 65 
 
 Solvency Mutual Guarantee Soc, In re Haw- 
 thorne's Case, 10 W. R., 572; 6 L. T. 
 
 (N. S.), 574, 1318 
 
 Somers d. Athenaeum, 9 L. C, 61, 508 
 
 Somerset Ins. Co. v. McAnally, 46 Penn. St, 
 
 41, 675 
 
 Somes 0. Equitable Safety Ins. Co., 13 Gray, 
 
 531, ' 563,1888 
 
Ixv'iii 
 
 TABLE OF CASES. 
 
 Somes e. Sugrue, 4 C. & P., 276, 1400 
 
 Sorbe v. Merchants Ins. Co., 6 La. (O. S.), 185, 
 
 982 
 South Australasian Ins. Co. v. Randall, 3 L. R. 
 
 P. C, 101 ; 6 Moore P. C. C. (N. S.), 
 
 341 ; 33 L. T. (N. S.), 843, 727 
 
 Southard o. Railway Passengers Ass. Co., 34 
 
 Conn., 574, 45 
 
 Southcombe v. Merriman, 1 C. & M., 286, 725 
 Southern Insurance and Trust Co. v. Lewis, 43 
 
 Ga., 587, 467, 652, 820, 1143, 1378 
 Southern Life Ins. Co. v. Wilkinson, 53 Ga., 
 
 535, 133, 510, 520, 539, 682, 1301 
 
 Soye V. Merchants Ins. Co., 6 La. An., 761, 
 
 830 
 Sparkes o. Marshall, 3 Bing. N. C, 761; 3 
 
 Scott., 172; 2 Hodges, 44, 715 
 
 Sparrow «. Caruthers, 2 Strange, 1236, 1044 
 Spaulding v. New York Life Ins. Co., 61 Me., 
 
 329, 1092 
 
 Spence «. Union Marine Ins. Co.,3 L. R. C. P., 
 
 427; 37 L. J. C. P., 169; 16 W. R., 
 
 1010; 18 L. T. (N. S), 632, 1431 
 
 Sperry ®. Delaware Ins. Co., 2 Wasli. C. C, 243, 
 
 251, 1152, 1275 
 
 Speyer «. New York Ins. Co., 3 Johns., 88, 
 
 1427 
 Spitta V. Woodman, 3 Taunt, 416, 
 
 114, 605, 627 
 
 Spitzer v. St. Marks Ins. Co., 6 Duer, 6, 1195 
 
 Spooner v. Rowland, 4 Allen, 485 , 187 
 
 Spratley v. Hartford Ins. Co., 1 Dill. C. C, 392, 
 
 59, 1006, 1106 
 
 ■». Mutual Benefit Life Ins. Co., 7 Chi. Leg. 
 
 News, 51, 756,1321 
 
 Spring 0. South Carolina Ins. Co., 8 Wheat., 
 
 368, 313,530 
 
 Springfield Fire and Marine Ins. Co. v. Allen, 
 
 43 N. Y. (4 Hand), 309, 1875 
 
 Spring Garden Mut. Ins. Co. v. Evans, 9 Md., 
 
 1, 1111 
 
 Sprott V. Ross, 16 S. & D., 1145, 733 
 
 Spruill V. North Carolina Mutual Life Ins. 
 
 Co., 1 Jones' Law, 126, 730 
 
 St. John V. American Mutual Fire and Marine 
 
 Ins. Co., 11 N. Y., 516; 1 Duer., 371, 
 
 547 
 9. American Mutual Life Ins. Co., 18 N. 
 
 Y., 31 ; 3 Duer., 419, 
 
 .■59, 183, 718, 818, 1460, 1463 
 
 St. Louis Ins. Co. o. Glasgow, 8 Mo., 713, 
 
 958, 1154, 1514 
 D. Eyle, 11 Mo., 378, 
 
 118, 834, 840, 1116, 1126 
 
 St. Louis Mutual Fire Ins. Co. d. Boeckler, 19 
 
 Mo., 135, 153 
 
 St. Louis Mutual Life Ins, Co. a. Graves, 6 
 Bush., 268, 533, 678, 847, 1359 
 
 V. Kennedy, 6 Bush., 450, 350 
 
 V. Grigsby, 10 Bush, 310, 920 
 
 St. Nicholas Ins. Co. n. Mercantile Mut. Ins. 
 
 Co., 5 Bos., 238, 1451 
 
 St. Patrick Ins. Co. v. Brebener, 8 S. & D., 51, 
 
 757 
 Stacey v. Franklin Fire Ins. Co., 3 W. & S.. 
 
 506, 478, 869 
 
 Stagg V. Insurance Co., 10 Wall., 589, 1091 
 
 ■». United States Ins Co., 3 Johns. C, 34, 
 
 1416 
 Stainbank v. Fenning, 11 C. B., 51, 704 
 
 V. Shepard, 13 C. B., 418, 704 
 
 Stamma v. Brown, 3 Strange, 1173, 303 
 
 Standard Oil Co. v. Triumph Ins. Co., 6 N. Y., 
 
 8. C, 300, 1216 
 
 Staniforth v. Coombe, 5 Taunt., 726, 637 
 
 Stanley v. Western Ins. Co., 3 L. R. Ex., 71 ; 
 
 37 L. J. Ex., 73 ; 16 W. R., 369, 549 
 Stanton v. Natchez Ins. Co., 6 Miss., 744, 1478 
 Starbuck v. New England Marine Ins. Co., 19 
 
 Pick., 198, 1366 
 
 Stark i). Chesapeake Ins. Co., 7 Cranch,430, 
 
 235 
 Starkweather d. Cleveland Ins. Co., 3 Abb. 
 
 C. C, 67, 180 
 
 Stark County Mutual Ins. Co. «. Hurd, 19 
 
 Ohio, 149, 858 
 
 State Ins. Co. Ex parte, 18 Wall., 417, 1189 
 State Fire Ins. Co. In re, 1 DeG. J. & S., 684; 
 
 33 L. J. Ch., 123, 758 
 
 State Mutual Fire Ins. Co. v. Arthur, 30 Penn. 
 
 St., 315, 474, 664 
 
 V. Roberts, 31 Penn. St., 438, 161 
 
 Statham v. New York Life Ins. Co., 45 Miss., 
 
 581, 366, 908, 952 
 
 Stebbins v. Globe Ins. Co., 2 Hall, 632, 
 
 85, 131, 1198, 1451 
 Steel V. Lacy, 3 Taunt., 285, 1262 
 
 Steele v. Franklin Fire Ins. Co., 17 Penn. St., 
 
 290, 565, 850, 1343 
 
 Steinback v. Columbian Ins. Co., 3 Caines, 129, 
 
 1487 
 
 V. Insurance Co., 13 Wall., 183, 1211 
 
 V. Lafayette Ins. Co., 54 N. Y., 90, 
 
 500, 1313 
 
 ■». Ogden, 3 Caines, 1, 195 
 
 V. Rhinelander, 3 Johns. C.,268, 1227 
 
 Steinmetz 0. Franklin Fire Ins. Co., 6 Phila., 
 
 '^^> 1455 
 
 v. United States Ins. Co., 2 S. & R., 203, 
 
 ' S67 
 Stephens v. Australasian Ins. Co., 8 L. R C P 
 
 18; 42 L. J. C. P., 13, ' " 98^' 
 
TABLE OF CASES. 
 
 Ixix 
 
 Stephens v. Illinois Mut. Ins. Co., 43 111., 327, ' 
 
 714 
 
 Stephenson v. Pacific Mut. Ins. Co., 7 Allen 
 
 232, 781 
 
 V. Piscataqua Fire and Marine Ins., 54 
 
 Me., 55, 
 135, 386, 484, 498, 563, 781, 1248, 1478 
 Stevens o. Columbian Ins. Co., 3 Caines, 43, 
 
 586 
 
 jj. Commercial Mutual Ins. Co., 26 N. Y., 
 
 397; 6 Duer, 594, 408 
 
 V. Phoenix Ins. Co., 41 N. T., (2 Hand.), 
 
 149; 24 How. Pr., 517, 1188 
 
 Stevenson e. Cotton, 8 C. C. S., 872; 18 Scot. 
 
 Jur., 465, 1354 
 
 c. London and Lancashire Ins. Co., 26 U. 
 
 C. Q. B., 648, * 717 
 
 V. Snow, 3 Burr., 1237; 1 W. Bl., 315, 
 
 1229 
 Sterling v. Mercantile Mut. Ins. Co., 32 Penn. 
 St., 75, 962, 1056 
 
 Stetson V. Insurance Co., 3 Phila., 380, 
 
 112, 1107 
 
 0. Insurance Co., 4 Phila., 8, 106, 1289 
 
 s. Massachusetts Mutual Fire Ins. Co., 
 
 4 Mass., 330, 104, 796 
 
 Steward v. Phoenix Fire Ins. Co., 5 Hun. (N. 
 
 T.). 261, 306 
 
 Stewart v. Aberdein, 4 Mee. & W., 211 ; 7 L. J. 
 
 (N. 8.). Ex., 292, 896 
 
 v. Bell, 5 B. & A., 238, 1008 
 
 V. Dunlop, 4 Bro. P. C, 483 n., 247 
 
 V. Greenock Marine Ins. Co., 2 H. L. Cas., 
 
 159; 1 Macq. H. L. Cas., 382; 8 C. C. 
 S., 323; 18 Scot. Jur., 151, 602,1416 
 
 V. Greenock Mutual Ins. Co., 6 C. C. S., 
 
 359, 1444 
 
 V. Morrison, Faculty Dec, 1778 to 1781, 
 
 p. 103, 239 
 
 «. Steele, 11 L. J. C. P., 155; 5 Scott. N. 
 
 R., 927, 1038 
 
 v. Tennessee Marine and Fire Ins. Co., 1 
 
 Humph., 243, 2U2, 421 
 
 V. West Indian & Pacific Steamship Co., 
 
 43 L. J. Q. B., 84 ; 31 W. R, 381 ; 27 L. 
 T. (N. S.), 820; 8 L. R Q. B., .362; 21 
 
 W. K , 953 ; 28 L. T. (N. S.), 742, 
 
 614 
 
 V. Western Marine and Fire Ins. Co., 11 
 
 La. (O. S.), 53, 892 
 
 ®. Wilson, 13 Mee. & W., 11 ; 13 L. J. Ex., 
 
 27, 1263 
 
 Stillwell V. Staples, 19 N. Y., 401 ; 6 Duer, 63, 
 
 64,726 
 
 Stimpson v. Monmouth Mutual Fire Ins. Co., 
 47 Me., 379 61, 833 
 
 Stirling v. Vaughan, 11 East., 619 ; 3 Camp., 
 
 225, 118,696 
 
 Stitt V. Warden, 3 Esp., 610, 418 
 
 Stockdale v. Dunlop, 6 Mee. & W., 234; 9 L. 
 
 J. (N. S.) , Ex., 83 ; 4 Jur., 681, 704 
 Stocker v. Harris, 3 Mass., 409, 408 
 
 Stokes V. Coflfey, 8 Bush., 533, 1329, 1530 
 
 —!— V. Cox, 1 H. & N., 533 ; 3 Jur. (N. S.), 45 ; 
 
 26 L. J. Ex., 113, 653 
 
 Stokoe V. Cowan, 29 Beav., 637; 7 Jur. (N. S.), 
 
 901 ; 30 L. J. Ch., 883; 9 W. B., 801 ; 
 
 4 L. T. (N. S.). 695, 167 
 Stone V. Aberdeen Marine Ins. Co., 11 C. C. S., 
 
 1041, 356,778,1256 
 
 V. Marine Ins. Co., 1 Ex. D., 81, 
 
 415, 1235 
 
 ■». National Ins. Co., 19 Pick., 34, 196 
 
 «. United States Casualty Ins. Co., 34 N. 
 
 J., 371, 42, 1534 
 
 Stooke V. Stooke, 35 Bear., 396, 204 
 
 Storer v. Eaton . 50 Me., 219 , 375 
 
 V. Elliot Fire Ins. Co., 45 Me., 175, 502 
 
 V. Gray, 2 Mass., 565, 1407 
 
 Stormont v. Waterloo Life and Casualty Ass. 
 
 Soc, 1 F. & F., 33, 1360 
 
 Story ®. Strettel, 1 Dall. 13, 536, 1436 
 
 Stout V. City Fire Ins. Co., 13 Iowa, 371, 
 
 694, 767, 1531 
 Stover «. Insurance Co., 3 Phila., 38, 1038 
 Stowes. Querner, 5 L. R. Ex., 155; 39 L. J. 
 
 Ex., 60; 18 W. R., 466; 23 L. T. (N. 
 
 S ), 29, 538 
 
 Strachan v. M'Dougle, 13 S. i& D., 954, 175 
 Street v. Augusta Ins. Co., 12 Rich., 13, 230 
 Stringer ®. English & Scottish Marine Ins. Co., 
 
 5 L. R. Q. B., 599; 18 W. R., 1201 ; 22 
 L. T. (N. S.), 802; 10 B. & S., 770; 4 
 L. RQ. B.,676, 1402 
 
 Stringham v. St. Nicholas Ins. Co., 43*, N. Y. 
 (3 Keyes), 280; 4 Abb. Dec, 315; 37 
 How., Pr. 365, 1084 
 
 Strohn v. Hartford Fire Ins! Co., 37 Wis., 
 
 648, 70, 73, 350, 502 
 
 V. Hartford Fire Ins. Co., 37 Wis., 625, 
 
 350 
 Strong V. Firemens Ins. Co., 11 Johns., 323, 
 
 87 
 
 «. Harvey, 3 Bing,304; 4 L. J. C. P., 57; 
 
 11 Moore, 73, 58, 114, 1364 
 
 ■». Manufacturers Ins. Co., 10 Pick., 40, 
 
 101, 387, 713, 1374 
 
 V. Martin, 1 C. C. S., 1245, 200 
 
 V. Natally, 4 B. & P., 16 , 987 
 
 V. Rule, 3 Bing., 315 ; 4 L. J. C. P., 73 ; 11 
 
 Moore, 86, 114 
 
 V. Sun Mutual Ins. Co., 31 N. Y., 108, 
 
 547 
 
Ixx 
 
 TABLE OF CASES. 
 
 Stnrge ®. Rahn, 4 Exch., 646 ; 19 L. J. Ex., 
 
 119, 960 
 
 Sturges «. Bush., 3 Day, 452, 11«, 642 
 
 Sturm B. Atlantic Mutual Ins. Co., 6 J. & Sp. 
 
 (N. Y.), 281, 66, 376, 515, 533, 
 
 712, 1157, 1251, 1312, 1469 
 
 V. Williams, 6 J. & Sp. (N. Y.), 335, 
 
 479, 527 
 Suart v. Powell, 1 B. & Ad., 266 ; 8 L. J. K. B., 
 
 391, 1354 
 
 Suckley v. Delafield, 2 Calnes, 231, 
 
 194, 625, 1301 
 Suffolk Fire Ins. Co. v. Boyden, 9 Allen, 123, 
 
 1341 
 Sullivan v. Cotton States Life Ins. Co., 43 G-a., 
 
 423, 495, 939 
 V. Massachusetts Mutual Fire Ins. Co., 2 
 
 Mass., 318, 300 
 
 Summers «. United States Insurance and Trust 
 
 Co., 13 La. An., 504, 69, 1018 
 
 Sun Fire Office v. "Wright, 3 Nev. & Man., 819 ; 
 
 1 A. & E., 621, 382 
 
 Sun Ins. Co. «. Earle, 29 Mich., 406, 
 
 522 
 Sun Mutual Ins. Co. v. Hall, 104 Mass., 507, 
 
 363 
 
 ®. "Wright, 33 How., 412, 335 
 
 Sunderland Marine Ins. Co. v. Kearney, 16 Q. 
 
 B., 925; 20 L. J. Q. B., 417; 15 Jur., 
 
 1006, 50, 73, 953 
 
 Supple V. Cann, 9 Ir. C. L. R, 1, 
 
 939, 1321 
 Susquehanna Ins. Co. v. Ferrine, 7 "W. & S., 
 
 348, 1086 
 
 Sussex County Ins. Co. ®. "Woodruff, 26 N. J., 
 
 541, 261, 455, 521, 973, 1328 
 
 Sutherland v. Pratt, 11 Mee. <fc "W., 296; 12 L. 
 
 J. Ex., 335; 13 id., 246, 778, 967 
 ■». Pratt, 12 Mee. & W., 16; 13 L. J. Ex., 
 
 246; 7 Jur., 261, 71 
 V. Sun Fire Office, 14 C. C. S., 775 ; Stuart, 
 
 710 ; 24 Scot. Jur., 440, 1163 
 
 Sutherlin v. Underwriters' Agency, 53 Ga., 443, 
 
 127,368,442 
 Suydam v. Columbus Ins. Co., 18 Ohio, 459, 
 
 888 
 V. Marine Ins. Co., 1 Johns., 182 ; 3 id., 
 
 139, 4, 892 
 
 Swanscot Machine Co. v. Partridge, 25 N. H., 
 
 369, 153, 187, 1389 
 
 Swan V. Union ^Ins. Co., 3 "Wheat, 168, 
 
 200 
 Sweeney v. Franklin Fire Ins. Co., 20 Penn. 
 
 St., 337, 703 
 
 Swete V. Fairlie, 6 C. & P., 1, 1311 
 
 Sweeting d. Pearce, 7 C. B. (N. S.), 449; 9 id., 
 
 534; 39 L. J. C. P., 265; 30 id., 109.; 
 
 "W. R., 343 ; 5 L. T. (N. S.), 79, 898 
 
 Swick V. Home Life Ins. Co., 2 Dil. Cir. C, 160, 
 
 279, 683, 734, 701 
 
 Swift V. Massachusetts Mutual Life Ins. Co., 3 
 
 N. Y. S. C, 303; 5 Ins. L. J., 53, 
 
 514, 801 
 V. Mercantile Mut. Ins. Co., 113 Mass., 
 
 287, 996 
 ■». Vermont Mutual Fire Ins. Co., 18 "V"t., 
 
 305, 1880 
 
 Swinnerton ■». Columbian Ins. Co., 37 N. Y., 
 
 174; 9 Bos., 361, 219,373 
 
 Swords V. Blake, 3 Edw. Ch., 112, 1288 
 
 Syers «. Bridge, 2 Doug., 527, 294 
 
 Sykes v. Perry County Mutual Fire Ins. Co., 
 
 34 Penn. St., 79, 657 
 
 Symers «. Glasgow Ins. Co., 19 Scot. Jur., 49, 
 
 364, 1491 
 Symonds v. Union Ins. Co., 4 Dall., 417 ; 1 
 
 Wash. 0. C, 382, 1403 
 
 T. 
 
 Tabbs «. Bendelack, 4 Esp., 108; 3 B. & P., 207 
 
 n., 225 
 
 Tait V. Levi, 14 East, 481, 414 
 
 Talamon v. Home and Citizens Mut. Ins. Co., 
 
 16 La. An., 426, 1193 
 
 Talcot V. Commercial Ins. Co., 2 Johns., 121, 
 
 1246 
 
 V. Commercial Ins. Co., 2 Johns., 467, 
 
 818 
 
 V. Marine Ins. Co., 3 Johns., 130, 1119 
 
 Tallman v. Atlantic Fire and Marine Ins. Co., 
 
 43 N. Y. (8 Keyes), 87; 4 Abb. Dec, 
 
 345; 29 How. Pr., 71, 991- 
 
 Tanner v. Beimett, R. & M., 183, 1424 
 
 Tarleton «. Staniforth, 5 Term, 695 ; 1 B. «& P., 
 
 471; 3 Anst. 707, 943 
 
 Tasker v. Cunninghame, 1 Bli., 87, 987 
 
 Tate B. Citizens Mutual Fire Ins. Co., 13 Gray, 
 
 79, 76 
 
 V. Protection Ins. Co., 20 Conn., 481, 197 
 
 Tatham v. Commerce Ins. Co., 4 Hun. (N. Y.J, 
 
 136, i38ij 
 
 «. Hodgson, 6 Term., 656, 1032 
 
 Taunton Copper Co. «. Merchants Ins. Co., 23 
 
 Pick., 108, 395 
 
 Tayloe v. Merchants las. Co., 9 How., 390, 
 
 813, 737, 1105 
 
TABLE OF CASES. 
 
 Ixxi 
 
 Taylor «. iEtaa Life Ins. Co., 13 Gray, 434, 
 
 1121, 1367 
 e. Curtis, Holt N. P., 193; 3 Marsh, 309; 
 
 6 Taunt., 608 ; 4 Camp., 337, 612 
 
 V. Dean, 22 Beav., 429, 739 
 
 e. Dewar, 5 B. & S., 58; 33 L. J. Q. B., 
 
 141; 12 W. R., 579; 10 L. T. (N. S.), 
 
 267;10Jur. (N. S.) 361, 329 
 e. Dunbar, 4 L. R. C. P., 206; 38 L. J. C. 
 
 P., 178;17W. R.,882. 1033 
 
 V. Germania Ins. Co., 2 Dil. C. C, 283, 
 
 1067 
 
 ». Lowell , 3 Mass. , 331, 981 
 
 0. Roger Williams Ins. Co., 51 N. H., 50, 
 
 1134 
 
 B. Wilson, 15 East, 334, 1488 
 
 Teasdale ». Charleston Ins.'Co., 3 Brev., 190, 
 
 1434 
 Tebbets v. Hamilton Mut. Ins. Co., 1 Allen, 
 
 805, 85 
 
 Tebbetts v. Hamilton Mut. Ins. Co., 3 Allen, 
 
 569, 112, 491 
 
 Teerpenning v. Corn Exchange Ins. Co., 43 N. 
 
 T. (4 Hand.), 379, ' 536 
 
 Tiegumouth & General Mutual Ship Ass'n v, 
 
 Martin's Claim, 17 L. R. Eq., 148; 41 
 
 L. J. Ch., 679 ; 36 L. T. (N. S.), 684, 
 
 93 
 
 Tenet v. Phoenix Ins. Co., 7 Johns., 363 ; 407 
 Tennant v. Henderson, 1 Dow, 324, 423 
 
 Tennessee Fire and Marine Ins. Co. v. Scott, 
 14 Mo., 46, 405 
 
 Tesson v, Atlantic Mut. Ins. Co,, 40 Mo., 33, 
 
 741 
 Teutonia Life Ins. Co. v. Anderson, 77 111., 383, 
 
 903, 924 
 
 V. Beck, 7 Chi. Leg. News, 190, 509, 822 
 
 v. Mueller, 77 111., 23 126, 902 
 
 Thatcher v. Bellows, 13 Mass, 111, 270 
 
 Thayer v. Agricultural Ins. Co., 5 Hun. (N. 
 
 T.), 566, 476, 834 
 
 V. Middlesex Mutual Fire Ins. Co., 10 
 
 Pick., 336, 340, 531 
 
 Thelluson v. Fletcher, 1 Esp., 73 ; 1 Doug., 315, 
 
 1433 
 
 ». Shedden, 5 B. & P., S38, 485 
 
 Thellusson v. Bewick, 1 Esp., 77, 383 
 
 c. Ferguson, 1 Doug., 360, 435, 1337 
 
 Theobald v. Railway Passengers Ass. Co., 10 
 
 Exch., 45 ; 23 L. J. Ex., 349, 44 
 
 Thomas v. Achilles, 16 Barb., 491, 153 
 
 V. Rockland Ins. Co., 45 Me., 116, 12 
 
 V. Royal Exchange Ass. Co., 1 Price, 195, 
 
 447 
 
 Thompson v. American Tontine Life Ins. Co., 
 
 46 N. T., 674, . 909 
 
 Thompson v. Buchanan, 4 Bro. P. C, 483, 
 
 253 
 
 V. Hopper, 6 El. & Bl., 173; 2 Jnr. (N. S.), 
 
 608; 25 L. J. Q. B., 340; 6 El. & Bl., 
 937 ; 3 Jur. (N. S.), 133 ; 26 L. J. Q. B., 
 18; El. Bl. & El., 1038; 5 Jur. (N. 
 S.), 93 ; 27 L. J. Q. B., 441, 1345 
 
 -. V. Irving, 7 Mee & W., 367; 5 Jur., 103, 
 
 635 
 
 V. Mississippi Marine and Fire Ins. Co., 3 
 
 La. (O. 8.), 228, 144, 302, 639, 1410 
 
 V. Montreal Ins. Co., 6 U. C. Q. B., 319, 
 
 388, 961, 1024 
 
 V. Read, 12 S. & R., 440, 147 
 
 D.Reynolds, 7 El. & Bl., 173; 3 Jur, (N. 
 
 8.), 464; 26 L. J. Q. B., 93, 220 
 
 V. Rowcrofl, 4 East, 34, 603 
 
 V. Royal Exchange Ass. Co., 1 Mau. & 
 
 8el., 30, 213 
 
 V, Royal Exchange Ins. Co., 16 East, 314, 
 
 1503 
 
 ®. Shepperd, 7 S. & D., 783, 1287 
 
 V. Bpeirs, 13 Sim., 469, 175 
 
 V. St. Louis Mutual Life Ins. Co., 52 Mo., 
 
 469, 921 
 
 V. Taylor, 6 Term, 478, 593 
 
 ■». Whitmore, 3 Taunt., 337, 1030 
 
 Thomson a. Bissett, 4 C. U. 8., 670, 946 
 
 ■». Murison, 6 C. C. S., 1130; 16 Scot. Jur., 
 
 491, 1337 
 
 v. Redman, 13 L. J. Ex , 310, 954 
 
 Thorndike v. Bordman, 4 Pick., 471, 
 
 443 
 Thorne v. Travelers Ins. Co., 5 Ins. L. J., 169, 
 
 1316 
 
 Thornley v. Hebson, 3 B. & A , 51 3, 1433 
 
 Thornton v. Enterprise Ins. Co., 71 Penn. St. 
 
 234 1342 
 
 ■». Knight, 16 Sim., 509, 743 
 
 V. Lance, 4 Camp., 231. 369 
 
 V, United States Ins. Co., 12 Me., 150, 
 
 621 
 
 V. Western Reserve Fire Ins. Co., 31 
 
 Penn. St., 529, 1318 
 
 'Throop V. North American Ins. Co., 19 Mich., 
 
 433, 959 
 
 Thurston v. Columbian Ins. Co., 3 Caines, 89 S, 
 
 201, 406 
 
 V. Koch, 4 Dall., 848, 368 
 
 V. Murray, 3 Binn., 336, 538 
 
 Thurtell v. Beaumont, 8 Moore, 612 ; 1 Bing., 
 
 339; 3 L. J. C. P., 4, 150 
 
 Thwing V. Great Western Ins. Co., 103 Mass., 
 
 401, 880 
 
 V. Great Western Ins. Co., Ill Mass., 93, 
 
 753, 1114 
 
Ixxii 
 
 TABLE OF CASES. 
 
 Thwing V. Washington Ins. Co., 10 Grray, 443, 
 
 6, 588, 1471 
 Tidmarsli v. Washington Fire and Marine Ins. 
 
 Co., 4 Mason, 439, 845 
 
 Tidswell v. Ankerstein, Peake's N. P., 204, 
 
 687 
 Tiflft V Phoenix Mutual Life Ins. Co., 6 Lans., 
 
 198, 338 
 
 Tillou V. Kingston Mut. Ins. Co., 5 N. Y., 405 ; 
 
 7 Barb., 570, 156 
 
 Tilton V. Hamilton Fire Ins. Co., 14 How. Pr., 
 
 363; 1 Bos., 367, 1369 
 
 ■». Tremont Mut. Ins. Co., 13 Gray, 519 n., 
 
 192 
 Times Fire Ins. Co. v. Hawke, 1 F. & F., 406 ; 
 
 5 H. & N., 935; 28 L. J. Ex., 317, 
 
 1161 
 Times Life Ass. and Guarantee Co., In re, 5 L. 
 
 R.Ch.,381, 841 
 
 Tippecanoe Township v. Manlove, 39 Ind., 
 
 249, 958 
 
 Tittemore v. Vermont Mutual Fire Ins. Co., 
 
 30 Vt., 546, 107 
 
 Tobin«. Harford, 17 C. B. (N. S), 538; 34 L. 
 
 J. C. P., 37; 10 Jnr. (N. S.), 850; 12 
 
 W. R, 1063; 10 L. T. (N. S.), 817; 13 
 
 C. B. (N. S.), 791; 9 Jur. (N. S.), 992; 
 
 32 L. J. C. P., 134; 11 W. R., 436; 8 
 
 L. T. (N. S.), 31, 1479 
 
 Todd «. Ritchie, 1 Btarkie, 190, 203 
 
 V. Beid, 4 B. & A., 310, 1390 
 
 Toledo Fire and Marine Ins. Co.s. Speares, 16 
 
 Ind., 53, 397 
 
 Tolman v. Manufacturers Ins. Co., 1 Cush., 73, 
 
 164 
 Tom V. Smith, 3 Caines, 245, 1097 
 
 Tomlinson v. Monmouth Mutual Life Ins. Co., 
 
 47 Me., 333, 98 
 
 Tonge «. Kennett, 10 La. An., 800, 275 
 
 ■». Watts, 2 Strange, 1251, 573 
 
 Tooley v. Railway Passenger Ass. Co., 3 Biss., 
 
 399, 41 
 
 Toppan V. Atkinson, 3 Mass., 365, 995 
 
 Toulmin v. Anderson, 1 Taunt, 227, 643 
 
 V. Inglia, 1 Camp, 431, 198 
 
 Towle V. National Guardian Ass. See, 30 L. 
 
 J. Ch., 900; 7 Jur. (N. S.), 618; 10 W. 
 
 R.,49; 5L.T. (N.S.), 193, 794 
 
 Towne V. Fitchburg Mutual Fire Ins. Co., 7 
 
 Allen, 51, 668 
 
 Townsend ». Merchants Ins. Co., 4 J. «& Sp., 
 
 173; 45 How. Pr., 501 ; 56 N. T., 655,' 
 
 509, 517 
 
 V. Narragansett Ins. Co., 4 J. & Sp., 170; 
 
 46 How. Pr., 40; 56 N. Y., 655, 
 
 517 
 
 Townsend v. Northwestern Ins. Co., 18 N. Y., 
 
 168, 123, 650 
 
 B. Phillips, 2 Root, 400, 12,13 
 
 Ti-aders Ins. Co. v. Roberts, 9 Wend., 404, 156 
 
 ■». Robert, 9 Wend., 474; 17 id., 631, 
 
 177, 1335 
 Traill v. Baring, 4 DeG. J. & S., 318; 10 Jur. 
 
 (N. S.), 377; 13 W. R., 678; 10 L. T. 
 
 (N. S.), 315; 4 Giff., 485, 10 Jur. (N. 
 
 S.), 87; 33 L. J. Ch., 531; 13 W. R., 
 
 334; 9 L. T. (N. S.), 708, 795 
 
 Train v. Holland Purchase Ins. Co., 1 Hun. 
 
 (N. Y.), 527; 3 N. Y. S. C, 777; 5 Ins. 
 
 L. J., 177, 339 
 
 Trask v. State Fire and Marine Ins. Co., 29 
 
 Penn. St., 198, 835 
 
 Treadway « Hamilton Mut. Ins. Co., 29 Conn., 
 
 68, 97 
 
 Treadwell v. Union Ins. Co., 6 Cow., 270, 
 
 779, 1350, 1357 
 Treat v. Union Ins. Co., 56 Me., 331, 1348 
 
 Tredwin v. Holman, 1 H. & C, 72; 8 Jnr. (N. 
 
 1080; 31 L. J. Ex., 398; 10 W. R., 652; 
 
 7 L. J. (N. S.), 137, 188 
 
 Tredegar v. Windus, 19 L. R. Eq., 607, 736 
 Trench v. Chenango County Mut. Ins. Co., 7 
 
 Hill, 123, 84 
 
 Trenton Mutual Life and Fire Ins. Co. v. 
 
 McKelway, 12 N. J. Eq , 133, 803 
 
 V. Johnson, 24 N. J., 576, 685, 846 
 
 Trew V. Railway Passengers Ass. Co., 6 H. & 
 
 N., 839; 7 Jur. (N.S.), 878; 30 L.J. 
 
 Ex., 317 ; 9 W. R., 671 ; 4 L. T. (N. S ), 
 
 833, 44 
 
 Trimble's Lyndics «. New Orleans Ins. Co., 
 
 3 Martin (La ), 394, 1384 
 
 Tripp «. Pacific Mut. Ins. Co., 7 Allen, 230, 
 
 1289 
 Triston v Hardy, 14 Beav., 232, 1851 
 
 Trott v. City Ins. Co., 1 Cliff., 439, 134 
 
 Trough's Estate, 8 Phila., 214, 177 
 
 Troy Fire Ins. Co. v. Carpenter, 4 Wis., 20, 
 
 534, 902, 951, 1125, 1155 
 Trull V. Roxbury Mut. Ins. Co., 3 Cush , 263, 
 
 1160 
 
 Trumbull v. Portage County Mut. Ins. Co., 13 
 
 Ohio, 305, 109 
 
 Trumbull County Mutual Fire Ins. Co. v. 
 
 Horner, 17 Ohio, 407, 1057 
 
 Truscott V. Christie, 2 B. & B., 320; 5 Moore, 
 
 33. 591 
 
 Tucker v DeLonguemare, 1 Johns., 20, 642 
 
 V. Provincial Ins. Co., 7 Grant Ch , 123, 
 
 1088 
 V. United Marine and Fire Ins. Co., 12 
 188, 1036 
 
TABLE OF CASES. 
 
 Ixxiii 
 
 Tuckerman «. Home Ins. Co., 9 R. I., 414, 
 
 719, 819 
 0. Kew England Mutual Marine Ins. Co., 
 
 13 Cush., 554, 1507 
 
 TuUoch 0. Boyd, Holt N. P., 487; 7 Taunt., 
 
 473; 1 Moore, 174, 510,645 
 
 Tunno o. Edwards, 18 East , 488, 1395 
 
 Turley v. North American Ins. Co , 35 Wend , 
 
 374, 1133 
 
 Turnbull v Woolfe, 3 Giff , 91, 458 
 
 Turner v. Burrows, 5 Wend., -541 ; 8 id., 144, 
 
 348, 489, 995 
 
 V. Protection Ins Co., 25 Me , 515, 430 
 
 V. Quincy Mut Ins. Co , 109 Mass., 568, 
 
 67, 1085 
 
 V. Stetts, 38 Ala , 420, 49 
 
 Turpin v. Bilton. 5 M & G , 455 ; 6 Scott, N. 
 
 R., 447; 7 Jur., 950; 13 L. J. C. P., 
 
 167, 315 
 
 Twemlow v. Oswin, 3 Camp., 85, 1419 
 
 Two Catherines, 2 Mason, 319, 1342 
 
 Tyler o. New Amsterdam Fire Ins. Co., 4 Rob. 
 
 (N.Y), 151, 339 
 
 Tyrie v. Fletcher, Cowper, 666, 1333 
 
 Tyson v. Gurney, 3 Term, 477, 810 
 
 u. 
 
 Uhde V. Walters, 3 Camp., 16, 446 
 
 Underbill v. Agawam Mutual Fire Ins. Co., 6 
 
 Cush., 440, 533, 1113, 1526 
 
 Underwood v. Farmers Joint Stock Ins. Co., 
 
 57 N. Y., 500; 48 How. Pr., 367, 
 
 1133 
 
 V. Robinson, 4 Camp., 138, 783 
 
 Underwriters Agency v. Sutherlin, 46 Ga , 652, 
 
 308 
 Unger v. Peoples Fire Ins. Co., 4 Daly, 96, 
 
 554 
 Union Bank v. Union Ins. Co., Dud. Ap. (So. 
 
 Car.), 171, 622 
 
 Union Central Life Ins. Co., «. Thomas, 46 
 
 Ind., 44, 512, 1316 
 
 Union Ins. Co. v. Caldwell, Dud. Ap. (So. Car.), 
 
 263, 379 
 
 e. Groom, 4 Bush., 389, 830, 1019 
 
 e. Hoge, 21 How., 35; 17 How. Pr., 127, 
 
 1447 
 ■ e. Stoney, Harper, 235; 3 McCord, 387; 
 
 4 id., 511, 250 
 V. Tyseni 3 Hill, 118, " 190, 436 
 
 Union Mutual Fire Ins. Co. v. Keyser, 33 N. 
 
 H., 313, 1070 
 
 Union Mutual Life Ins Co, v. McMillen, 24 
 
 Ohio St., 67, 987, 1319 
 
 United Ins. Co. v. Scott, 1 Johns., 106, 51 
 United Life, Fire and Marine Ins. Co. v. Foote, 
 
 33 Ohio St., 340, 548 
 
 United Life Ins. Co. v. Insurance Co. of North 
 
 America, 43 Ind., 588, 1083 
 
 United Ports and General Ins. Co., In re 
 
 Evens' Claim, 16 L. R. Eq., 354; 29 
 
 L. T. (N. S.), 33, 841 
 
 United States Fire and Marine Ins. Co. v. 
 
 Kimberly, 34 Md., 334 , 1047, 1531 
 United States Ins. Co. ®. Lenox, 1 Johns. C, 
 
 377; 3 id., 443, 603 
 
 United States, The, «. Amedy, 11 Wheat, 393, 
 
 150, 298 
 
 V. The Paul Shaerman, Pet. C. C, 98, 
 
 423 
 
 c. Wilder, 3 Sumn., 308, 615 
 
 Universal Non Tariff Fire Ins. Co., In re 
 
 Forbes' Claim, 19 L. R. Eq., 485 , 473 
 Unthank v. Travelers Ins. Co., 4 Biss., 357, 
 
 1133 
 Upton V. Salem Commercial Ins. Co., 8 Met., 
 
 605, 376, 1044 
 
 Urquhart v. Australian Ins. Co., 5 Scot. Jur., . 
 
 348, 376 
 
 V. Barnard, 1 Taunt., 450, 445 
 
 Usher v. Noble, 13 East, 639, 893 
 
 Usparicha v. Noble, 13 East, 333, 633 
 
 Utica Ins. Co. v American Mut. Ins. Co., 16 
 
 Barb., 171, 453 
 
 V. 
 
 Vairin v. Canal Ins. Co., 10 Ohio, 333, 481 
 
 Vale e. Phcenix Ins. Co., 1 Wash. C. C, 283, 
 
 341 
 
 Vallance c. Dewar, 1 Camp., 503, 438 
 
 Vallezjo e. Wheeler, Loflt, 631 ; Cowper, 143, 
 
 197 
 
 Valton V. National Life Fund Ass'n, 20 N. Y., 
 33; 22 Barb., 9; 40 N. Y. (1 Keycs), 
 21; 4 Abb. Dec, 437; 17 Abb. Pr., 
 368, 65, 479, 683, 791 
 
 Van Allen v. Farmers Joint Stock Ins. Co.. 4 
 Hun. (N. Y.), 413, 1490 
 
 Van Buren v. St. Joseph County Village Ins. 
 Co., 28 Mich., 398, 671 
 
 Vance v. Forster, 3 Craw. & Dix., 118, 384 
 
Ixxiv 
 
 TABLE OF CASES. 
 
 Vandegraff ». Medlock, 3 Porter (Ala.), 389, 
 
 1384 
 Vandenheuvel «. United Ins. Co., 1 Johns., 406, 
 
 611, 1397 
 
 V. United States Ins. Co., 3 Jolins. C, 
 
 127, 811, 1371 
 
 V. United States Ins. Co., 3 Johns. Ch., 
 
 453, 1376 
 
 Vandervoort o. Smith, 3 Gaines, 155, 488 
 
 Van Deusen b. Charter Oak Ins. Co., 1 A'ob. 
 Pr. (N. S.), 349; 1 Bob. (N. T.), 55, 
 1183, 1384 
 Vandyck v. Whitmore, 1 East, 475, 647 
 
 Vandycke ®. Hewitt, 1 East, 96. 1334 
 
 Vanharthals v. Halbed, 1 East, 486 n., 647 
 Van Inwagen v. City of Chicago, 61 111., 31, 
 
 1319, 1364 
 Van Natta v. Sun Mut. Ins. Co., 3 Sandf., 490, 
 
 717 
 
 Van Tuyl v. Westchester Fire Ins. Co., 55 N. 
 
 Y., 657, 1168 
 
 Van Valkenbui-gh v. Astor Mut. Ins. Co., 1 
 
 Bos., 61, 1357 
 
 0. Lenox Fire Ins. Co., 51 N. Y., 465, 
 
 1093, 1319 
 
 Van Zandt v. Mutual Benefit Life Ins. Co., 55 
 
 N. Y., 169, 1356 
 
 Varet v. New York Ins. Co., 7 Paige Ch., 560, 
 
 1836 
 Vase o. Ball, 3 Yeates, 178; 2 Dall., 370, 
 
 1377 
 Vaughan v. Vanderstegen, 3 Drew, 289, 178 
 Viall V. Genesee Mut. Ins. Co., 19 Barb., 440, 
 
 156, 455, 674 
 Victorin e. Cleeve, 3 Strange, 1350, 370 
 
 Viele V. Uermania Ins. Co., 26 Iowa, 9, 
 
 377, 497, 665, 1075, 1215 
 Vigers v. Ocean Ins. Co., 13 La. (O. S.), 363, 
 
 144 
 Vigoreaux v. Lime Rock Ins. Co., 59 Me., 457, 
 
 797 
 Violett V. Allnut, 3 Taunt., 419, 983 
 
 Visger v. Prescott, 5 Esp., 184, 1410 
 
 Vogel ». Peoples Mutual Fire Ins. Co., 9 Gray, 
 
 23, 954, 1384 
 
 Von Bories v. United Life, Fire and Marine 
 
 Ins. Co., 8 Bush., 133, 873 
 
 Von Lindcnau v. Disborrough, 3 C. & P., 
 
 358, 7 L. J. K. B., 43; 3 M. «& R., 45 \ 
 
 8 B. & C, 586, 686, 1307 
 
 Von Tunglen v. BuBois, 3 Camp., 151, 809 
 Vos V. Robinson, 9 Johns., 192, 407, 1113 
 
 ■». United Ins. Co., 1 Caines Cas. VII, 
 
 209 
 
 V. United Ins. Co., 3 Johns. C, 469 
 
 806 
 
 Vose V. Eagle Life and Health Ins. Co., 6 
 Cush., 43, 533, 1295 
 
 V. Hamilton Mut. Ins. Co., 39 Barb., 303, 
 
 86C 
 
 w. 
 
 Waddell v. Columbian Ins. Co., 10 Johns., 61, 
 
 1437 
 Waddipgton v. United Ins. Co., 17 Johns., 28, 
 
 1328 
 Wadsworth v. Davis, 13 Ohio St., 123, 234 
 
 V. Pacific Ins. Co., 4 Wend., 34, 
 
 373, 395, 889, 1503 
 
 Wagdell V. Provincial Ins. Co., 31 U. C. Q. B., 
 
 612, 754 
 
 Wainewright v. Bland, 1 M. & Rob., 481 ; 6 
 
 Tyrw., 417; 1 Mee. & W., 32; 5 L. J. 
 
 (N. S.) Ex., 147, 1197, 1462 
 
 Wainhouse v. Cowie, 4 Taunt., 178, 644 
 
 Wake V. Atty, 4 Taunt, 493, 255 
 
 Wakefield v. Martin, 3 Mass., 538, 177 
 
 Walden v. LeRoy, 2 Caines, 263, 607 
 
 V. Louisana Ins. Co., 12 La. (O. S.), 134, 
 
 337, 264 
 
 9. Kew York Fire Ins. Co., 13 Johns., 
 
 128, 359 
 
 Waldron «. Coombe, 3 Taunt., 163, 485, 893 
 Wales V. China Mut. Ins. Co., 8 Allen, 380, 
 
 1041 
 Walker «. Boston Ins. Co., 14 Gray, 388, 
 
 889, 1293 
 
 V. Firemens Ins. Co., 3 Handy, 356, 
 
 997 
 
 ■». Maitland, 5 B. & A., 171, llo5 
 
 ■». Metropolitan Ins. Co., 56 Me , 371, 
 
 334, 1114 
 
 V. Protection Ins. Co., 29 Me., 817, 
 
 14, 1372 
 
 V. Provincial Ins. Co., 7 Grant's Ch., 137; 
 
 8 id., 217, 354 
 
 V. United States Ins. Co., 11 8. & R., 61, 
 
 609, 1416 
 
 D. Western Ass. Co., 18 U. C. Q B., 19, 
 
 1119 
 
 Wall «. East River Mut. Ins. Co., 7 N. Y., 
 
 370; 3Duer., 264, mis' 
 
 V. Howard Ins. Co., 51 Me., 32, 551 
 
 V. Homo Ins. Co., 36 N. Y., 157; 8 Bos., 
 
 597, 931 
 
 Wallace v. De Pan, 1 Brev., 252. 1359 
 
TABLE OF CASES. 
 
 Ixxv 
 
 Wallace v. Insurance Co., 4 La. (O. S.), S89, 
 
 1162, 1466 
 
 e. Ohio Ins. Co., 4 Ohio, 234, 1498 
 
 V. Telfair, 2 Term, 188 n., 276 
 
 Waller v. Louisiana Ins. Co., 9 Martin (La.), 
 
 276, 1063 
 
 Wallerstein v. Columbian Ins. Co., 44 N. Y., 
 
 204 ; 3 Rob. (N. T.), 528, 1507 
 
 Wallingford «. Home Mutual Fire and Marine 
 
 Ins. Co., 30 Mo., 46, 348 
 
 Wain V. Thompson, 9 S. & R., 115, 1098 
 
 Walsh V. .aima Life Ins. Co., 30 Iowa, 183, 
 
 509, 499, 1367 
 
 ■». Frank, 19 Ark., 270, 276 
 
 V. Washington Marine Ins. Co., 32 N. T., 
 
 427; 3 Rob. (N. T.), 203, 
 
 65, 479, 523, 1120, 1850 
 Walters v. Washington Ins. Co., 1 Cole, 404, 
 
 166, 182, 188, 966 
 Walthew v. Mavrojanl, 5 L. R. Ex., 116; 22 
 
 L. T. (N. S.), 310, 613 
 
 Walton V. Louisiana State Marine and Fire 
 
 Ins. Co., 2 Rob. (La.), 563, 859 
 
 D. Bethune, 2 Brev., 453, 1273 
 
 Want V. Blunt, 12 East, 183, 943 
 
 Waples V. Eames, 3 Strange, 1243, 1448 
 
 Ward V. Law Property Ass. and Trust Soc, 4 
 
 W. R., 605, 835 
 
 V. Wood, 13 Mass., 539, 66, 203, 442 
 
 Warder v. Horton, 4 Binn., 539, 813 
 
 Warin v. Scott, 4 Taunt., 605, 644 
 
 Waring v. Indemnify Fire Ins. Co., 45 N. Y., 
 
 606, 65, 993 
 
 Warner v. Middlesex Mut. Ass. Co., 31 Conn., 
 
 444, 1383 
 v. Peoria Fire and Marine Co., 14 Wis., 
 
 318, 1081, 1118 
 
 ■». Beem, 36 lowji, 385, 1053 
 
 Warre v. Miller, 4 B. & C, 538 ; 1 C. & P., 237 ; 
 
 7D.&R., 1; 4L. J. K. B., 8, 983 
 Warren v. Davenport Fire Ins. Co., 31 la., 464, 
 
 403 
 
 v. Franklin Ins. Co., 104 Mass., 518, 
 
 623, 1284, 1453 
 
 ®. Manufacturers Ins. Co., 13 Pick., 518, 
 
 1351 
 
 v. Ocean Ins. Co., 16 Me., 439, 126, 323 
 
 V. United States Ins. Co., 3 Johns. C, 
 
 233, 1343 
 
 Warwick v. Scott, 4 Camp., 63, 369 
 
 Washington County Mut. Ins. Co. v. Dawes, 6 
 
 Gray, 376, 484, 1315 
 
 V. Chamberlain, 16 Gray, 165, 846 
 
 Washington Fire Ins. Co. v. Davison, 80 Md., 
 
 91, 523. 535, 651, 871, 1074, 1459 
 
 . v. Kelly 32 Md., 431, 39, 109, 1345 
 
 Washington Ins. Co. v. Hayes, 17 Ohio St., 
 
 433, 109, 858 
 
 ■». Grant, 3 Penn. L. J., 308, 165 
 
 «. Reed, 30 Ohio, 199, 1019 
 
 ■». White, 103 Mass., 238, 193 
 
 Washington Life Ins. Co. v. Haney, 10 Kan., 
 
 635, 183, 516, 539 
 e. Lawrence, 53 Barb., 307; 41 N. Y. (8 
 
 Hand), 620, 177 
 
 Washington Marine Ins. Co. v. Herckenrath, 
 
 3 Rob. (N. Y.), 335, 270 
 
 Washington Mut. Ins. Co. v. Merchants and 
 
 Manufacturers Ins. Co., 5 Ohio St., 
 
 450, 1460 
 
 Washington Union Ins. Co. v. Wilson, 7 Wis., 
 
 169, 149 
 
 Wass V. Maine Mutual Marine Ins. Co., 61 
 
 Me., 537, 334 
 Watchorn v. Langford, 3 Camp., 423, 1011 
 Waters v. Allen, 5 Hill, 421, 1229 
 V. Merchants Louisville Ins. Co., 11 Pet., 
 
 213; 1 McLean, 275, 
 
 193, 194, 544, 660, 962, 1153 
 ■». Monarch Fire Ins. Co., 5 El. & Bl., 
 
 870 ; 2 Jur. (N. S.), 375 ; 25 L, J. Q. B., 
 
 102, 727 
 
 Watkins v. Durand, 1 Porter (Ala.), 251, 
 
 695 
 Watson V. Clark, 1 Dow, 836, 1253 
 
 ■». Delafield, 2 Caines, 224; 2 Johns., 536, 
 
 241 
 V. Insurance Co. of North America, 1 
 
 Binn,47; 4Dall., 283. 11 
 V. Insurance Co. of North America, 3 
 
 Wash. C. C, 1, 1478 
 «. Insurance Co. of North America, 2 
 
 Wash. C. C, 480, 536, 539, 1247 
 V. Insurance Co. of North America, 2 
 
 Wash. C. C, 152, 267 
 
 V. Mainwaring, 4 Taunt., 763, 1305 
 
 V. Marine Ins. Co., 7 Johns., 57, 
 
 388, 607, 680 
 V. Swann, 11 C. B. (N. S.), 756; 31 L. J. 
 
 C. P., 210, 567 
 Watt v. Morris, 1 Dow, 33, 1260 
 T. Ritchie, Faculty Dec, 1781 to 1787, p. 
 
 43, 053 
 
 Way V. Modigliani, 2 Term, 30, 989 
 
 Webb V. National Fire Ins. Co., 2 Sandf., 497, 
 
 999, 1006 
 
 V. Protection Ins. Co., 14 Mo., 8, 1371 
 
 V. Protection Ins. Co., 6 Ohio, 456, 
 
 283, 1019, 1037 
 
 V. Thompson, 1 B. & P., 5, 370 
 
 Weber v. Morris and Essex R. R. Co., 35 N. J., 
 
 409, 82, 1343 
 
Ixxvi 
 
 TABLE OF CASES. 
 
 Webster v. De Taslet, 7 Term, 157, 704 
 
 V. Phoenix lus. Co., 30 Wis., 67, 
 
 875 
 
 -D. Forster, 1 Esp., 407, 239 
 
 Wedderburn v. Bell, 1 Camp., 1, 1262 
 
 Weed V. Mutual Benefit Life Ins. Co., 3 J. & 
 
 Sp. (N. Y.), 386, 1360 
 
 s. Schenectady Ins. Co., 7 Lans. 453, 
 
 306, 978, 1168 
 Weide b. Germania Ins. Co., 1 Dil. C. C, 441, 
 
 36, 551 
 Weir V. Aberdeen, 2 B. & A., 320, 
 
 1254 
 Woisenberger v. Harmony Ins. Co., 56 Penn. 
 St., 442, 492 
 
 Weld ». Foster, 5 L. J. C. P., 13, 
 
 966 
 
 Willard e. Millers and Manufacturers Ins. Co., 
 
 24 Mo., 561; 30 id., 35, 589 
 
 Wellcome v. Peoples Equitable Mutual Fire 
 
 Ins. Co., 2 Gray, 480, 1180 
 
 Welles V. Boston Ins. Co., 6 Pick., 183, 
 
 1009, 1015 
 
 V. Gray, 10 Mass., 42, 450, 783 
 
 Wells ». Archer, 10 S. & R, 412, 759 
 
 V. Hopwood, 3 B. & Ad., 20, 1324 
 
 V. Pacific Ins. Co., 44 Cal., 397, 331 
 
 0. Philadelphia Ins. Co., 9 S. & R., 103, 
 
 452 
 Welts V. Connecticut Mutual Life Ins. Co., 48 
 N. T., 34, 789, 1015 
 
 West V. Old Colony Ins. Co., 9 Allen, 316, 
 
 1000 
 
 II. Reid, 2 Hare, 249 ; 12 L. J. Ch., 345, 
 
 175 
 
 West Branch Ins. Co. s. Helfenstein, 40 Penn. 
 
 St., 289, 105, 181, 833 
 
 Westbury v. Aberdein, 2 Mee. & W., 267 ; 6 
 
 L. J. (N. S.) Ex , 83 ; 1 Jur., 201, 238 
 
 Western v. Genesee Mut. Ins. Co., 12 N. Y., 
 
 258, 755, 1447 
 
 Western Ins. Co. v. Croppen, 33 Penn. St., 351, 
 
 279 
 
 Western Massachusetts Ins. Co. «. Duffey, 3 
 
 Kan., 347, 273, 339, 953 
 
 D. Riker, 10 Mich., 379, 1389 
 
 V. Transportation Co., 13 Wall., 301, 
 
 383 
 Westfall T. Hudson River Ins. Co., 13 N. Y., 
 389 ; 3 Duer, 490, 746 
 
 Westlake v. St. Lawrence County Mut. Ins. Co., 
 14 Barb., 206, 536, 864, 1108 
 
 Weston V. Ernes, 1 Taunt., 115, 495 
 
 Westropp v. Bruce, Batty, 155, 514 
 
 Westwood V. Bell, Holt N. P., 123, 
 
 213 
 
 Wetherell v. City Fire Ins. Co., 16 Gray, 276, 
 
 656 
 Wetmore v. Mutual Ai^l and Benevolent Life 
 Ins. Co., 33 La< An., 770, 
 
 1373 
 
 Westmore ads. , 6 Esp., 109, 1002 
 
 Wheeler u. New York Mut. Ins. Co., 3 J. & 
 
 Sp. (N. Y.),247, 1100 
 
 Wheelton ». Hardisty, 27 L. J. C. P., 241 ; 5 Jur. 
 
 (N. S.), 14, 1198 
 
 ■». Hardisty 8 El. & 31., 233; 26 L. J. Q. 
 
 B., 265, 507 
 
 Whipple v. North British and Mercantile Ins. 
 
 Co., 5 Ins. L. J., 71, 89 
 
 Whitaker v. Farmers Union Ins. Co., 29 Barb., 
 
 313, 319 
 
 White V. British Empire Mutual Life Ass. Co., 
 
 7 L. R Eq., 394, 158 
 
 D. Brown, 3 Cush., 413, 1340 
 
 =■ V. Hudson River Ins. Co., 7 How. Pr., 
 
 341 ; 15 id., 388, 713 
 
 V. " Mary Ann," The, 6 Cal., 463, 
 
 1348 
 
 V. Mutual Fire Ass. Co., 8 Gray, 566, 
 
 86, 498, 650 
 
 V. Republic Fire Ins. Co., 57 Me., 91, 
 
 1193 
 
 Whitehead v. Price, 3 C. M. &R, 447; 5 Tyrw., 
 
 835;lGale, 151-, 967,1534 
 
 ■\Vhitehurst «. North Carolina Mut. Ins. Co., 7 
 
 Jones' Law, 433, 886 
 
 V. Fayetteville Mut. Ins. Co., 6 Jones' 
 
 Law, 353, 1149, 1370 
 
 Whiting V. Independent Mut. Ins. Co., 15 Md., 
 
 297, 452, 1345 
 
 Whitley v. Piedmont and Arlington Life Ins. 
 
 Co., 71 N. C, 480, 940 
 
 Whitman v. Mason, 40 Ind., 189, 958 
 
 V Meissner, 34 Ind., 487, 1053 
 
 Whitmarsh v. Conway Fire Ins. Co., 16 Gray, 
 359, 1213 
 
 V. Charter Oak Ins. Co., 2 Allen, 581, 
 
 747 
 
 Whitney's. American Ins. Co., 3 Cow., 210; 
 
 5 id., 713, 1468, 1469 
 
 0. Haven, 13 Mass., 173, 437, 490 
 
 V. New York Firemen Ins. Co., 18 Johns., 
 
 308, 603 
 
 V. Ocean Ins. Co., 14 La. (O. S.), 485, 
 
 946 
 Whiton V. Albany City Ins. Co., 109 Mass., 24, 
 
 480, 849 
 
 «. Old Colony Ins. Co., 3 Met., 1, 
 
 286 
 
 Whittier v. Hartford Fire Ins. Co., 55 N. H., 
 
 141. llJ>x 
 
TABLE OF CASES. 
 
 Ixxvii 
 
 Whittingham a. Thornburgh, 3 Vern., 306 ; Pr. 
 
 In. Ch., 20, 1331 
 
 Whitwells. Harrison, 2 Exch., 127; 18 L. J. 
 
 Ex., 463, 1044 
 
 «. Putnam Fire InS. Co., 6 Lans., 166, 
 
 865 
 
 Wiggln e. Amory, 13 Mass., 118, 405 
 
 V. American Ins. Co., 18 Pick., 158, 164 
 
 V. Amory, 14 Mass., 1, 419 
 
 e. Mercantile Ins. Co., 7 Pick., 371, 285 
 
 V. Suffolk Ins. Co., 18 Pick., 145, 
 
 164, 451 
 WiglJtman®. "Western Marine and Fire Ins. 
 
 Co., 8 Kob. (La.) 442, 149, 1134, 1524 
 Wilbraham u. Wartnaby, 8 L. J. K. B., 355, 
 
 640 
 Wilbur i;. Bowditch Mutual Fire Ins. Co., 10 
 
 Gush., 446, 667 
 
 Wilcocks v. Union Ins. Co., 2 Binn., 574, 
 
 196, 812 
 Wilkes V. Peoples Fire Ins. Co., 19 N. T., 184, 
 
 713 
 Wilkie V. Geddes, 3 Dow, 57, 1361 
 
 Wilkins v. Tobacco Ins. Co., 1 Cin. Sup. Ct., 
 
 349, 1101, 1231 
 
 v. Tobacco Ins. Co., 3 Cin. Sup. Ct., 204, 
 
 1110 
 Wilkinson v. Clay, 6 Taunt., 110, 895 
 B. Connecticut Mutual Life Ins. Co., 30 
 
 la., 119, 1304 
 
 e. Coverdale, 1 Esp., 75, 49 
 
 V. Hyde, 3 C. B. (N. S.). 30; 4 Jur. (N. S.), 
 
 482; 37 L. J. C. P., 116, 1511 
 
 V. Lindo, 10 L. J. Ex., 94, 967 
 
 Willard v. Millers and Manufacturers Ins. Co., 
 
 34 Mo., 561 ; 30 id., 33, 499, 589 
 
 WiUets V. Sun Mut Ins. Co., 45 N. T., 45, 
 
 315 
 Williams B. Albany City Ins. Co., 19 Mich., 
 
 451, 938 
 
 V. Babcock, 25 Barb., 109, 273 
 
 V. Cheney, 8 Gray, 306, 1315 
 
 ■». Cole, 16 Me., 307, 1016 
 
 v. Corson, 5 Ins. L. J., 313, 304 
 
 v. Crescent Mut. Ins. Co., 15 La. An , 651 
 
 871 
 
 V. Delafield, 3 Caines, 339, 706 
 
 «. Firemens Fund Ins. Co., 54 N. T , 569, 
 
 751 
 V. Insurance Co. of North America, 1 
 
 Hilt., 345, 711, 818 
 V. Insurance Co. of North America, 9 
 
 How. Pr., 365, 956 
 
 e. Kennebec Ins. Co., 81 Me., 455, 1509 
 
 «. London Ass. Co., 1 Mau. & Sel., 318, 
 
 617 
 
 Williams «. Marshall, 6 Taunt., 390 ; 7 id., 468 ; 
 
 1 Moore, 168; 3 Marsh, 92, 645 
 V. Mechanics and Traders Ins. Co., 54 N. 
 
 Y., 577, 975 
 V. New England Fire Ins. Co., 29 Me., 
 
 465, 766 
 V. New England Mut. Ins. Co., 31 Me., 
 
 319, 199, 1153, 1521 
 
 0. Ocean Ins. Co., 3 Met., 303, 60, 1288 
 
 V. Peoples Fire Ins. Co., 57 N. Y., 374, 
 
 661, 751 
 
 V. Phoenix Ins. Co., 61 Me., 67, 555 
 
 V. Kepublic Ins, Co., 19 Mich., 469, 988 
 
 v. Boger Williams Ins. Co., 107 Mass., 
 
 377, 403 
 
 ■». Shee, 3 Camp., 469, 423 
 
 ■». Smith, 3 Caines, 1, 1013 
 
 ■». Smith, 3 Caines, 13, 309, 388, 573, 711 
 
 V. Suffolk Ins. Co., 13 Pet., 415, 637 
 
 V. Thorp, 3 Sim., 257, 175 
 
 «. Vermont Mut. Ins. Co., 30 Vt., 333, 
 
 772 
 -^v. Washington Life Ins. Co., 31 Iowa, 541, 
 
 938 
 Williamson v. Gore District Mut. Ins. Co., 36 
 
 U. C. Q. B., 145, 1467 
 
 o. Innes, 8 Bing., 83 n; 1 M. & Rob., 88, 
 
 184, 594, 
 «. Niagara District Ins. Co., 14 U. C. C. 
 
 P., 15, 955, 970 
 
 n. Tunno, 1 Brer., 151, 1378 
 
 Willis 9. Cooke, 5 El. & Bl., 631; 1 Jur. (N. 
 
 S.), 1164; 35 L. J. Q. B., 16, 583 
 
 V. Glover, 4 B. & P., 14, 338 
 
 Wills D. Wells, 8 Taunt., 364, 390 
 
 Wilmot B.Wilson, 3 C. C. S., 815; 13 Scot. 
 
 Jur., 337, 214 
 
 Wilson V. JEtna Ins. Co., 37 Vt., 99, 773 
 
 V. Conway Fire Ins. Co., 4 K. I., 141, 
 
 1071, 1086 
 
 V. Creighton, 3 Doug., 133, 1290 
 
 V. Forster, 6 Taunt., 35; 1 Marsh., 425, 
 
 1428 
 B.Genesee Mut. Ins. Co., 14 N. Y., 418; 
 
 16 Barb., 511, 1078 
 
 B. General Mut. Ins. Co., 12 Cush., 360, 
 
 194 
 
 V. Hampden Fire Ins. Co., 4 R. I., 159, 
 
 850, 1378 
 B.Herkimer County Mut. Ins. Co., 6 N. 
 
 Y., 58. 83 
 
 B. Hill, 3 Met., 66, 60, 1340 
 
 V. Jones, 1 L. R. Ex., 193 ; 4 H. & C, 221 ; 
 
 36 L. J. Ex., 78 ; 14 W. R., 499 ; 14 L. 
 
 T. (N. 8.), 65; 2 L. R. Ex., 139; 15 W. 
 
 R., 435 ; 15 L. T. (N. S.), 669, 186 
 
Ixxviii 
 
 TABLE OF CASES. 
 
 Wilson V. Lynch, 1 Hud. & B., 336, 398, 969 
 
 V. Martin, 11 Exch., 684 ; 25 L. J. Ex., 217, 
 
 699 
 
 V. Marryat, 8 Term, 36; 1 R & P., 430, 
 
 226, 631 
 V. Nelson, 5 B. & S., 334 ; 10 Jur. (S. S.J, 
 
 1044; 33 L. J. Q. B., 220; 12 W. R., 
 
 795 ; 10 L. T. (N. S.), 523, 1467 
 V. Rankin, 6 B. & S., 208, 221 ; 11 Jur. (N. 
 
 S.), 173; 34 L. J. Q. B., 62; 13 W. R., 
 
 104; 12 L. T. (N. S.), 20; 35 L. J. Q. 
 
 B., 203; 14 W. R., 198; 13 L. T. (N. 
 
 S.), 564; 1 L. R. Q. B., 162, 785 
 V. Royal Exchange Ass. Co., 2 Camp., 
 
 623, 703, 1503 
 
 V. Smith, 3 Burr., 1550; 1 W. Bl., 507, 
 
 1502 
 
 '0. Trumbull Mutual Eire Ins. Co., 19 
 
 Penn. St., 372, 154 
 
 V. United Ins. Co., 14 Johns., 227, 147 
 
 V. Wordie, Faculty Dec, 1781 to 1787, p. 
 
 207, 1476 
 
 Winans v. Allemania Ins. Co., 38 Wis., 342, 
 
 470 
 Winchester v. Stebbins, 16 Gray, 52, 1531 
 
 Windus ®. Tredegai-, 15 L. T. (N. S.), 108, 212 
 Wing V. Harvey, 23 L. J Ch., 511 ; 5 DeG. M. 
 & Or., 265 ; 18 Jur., 394, 1367 
 
 Winn V. Columbian Ins. Co., 12 Pick., 279, 
 
 785, 1409, 1439 
 Winneshiek Ins. Co. 7). Holzgrafe, 53 111., 516, 
 
 349, 1087 
 V. Schuyler, 60 111., 465, 
 
 39, 82, 374, 746, 1118 
 
 Winter v. Delaware Mutual Safety Ins. Co., 30 
 
 Penn. St., 334, 429 
 
 V. Easum, 2 DeG, J. & S., 272, 1534 
 
 B. Haldimand, 2 B. & Ad., 649 ; 9 L. J. K. 
 
 B., 318, 582 
 
 Winthrop v. Union Ins. Co., 2 Wash., C. C. 7, 
 
 399, 432, 539, 1451 
 
 Wise «. St. Louis Mutual Ins. Co., 23 Mo., 80, 
 
 78 
 Witherlee ®. Ocean Ins. Co., 24 Pick., 67, 
 
 277 
 WitUerell v. Maine Ins. Co., 49 Maine, 200, 
 
 344, 464, 535, 1370 
 
 Witt V. Amiss, 7 Jur. (N. S.), 499 ; 4 L. T. (N. 
 
 8.), 283, 622 
 
 Wittingham v. Thornborough, Fin.,20 ; 2 Vern., 
 
 206, 365 
 
 Wolcott V. Eagle Ins. Co., 4 Pick., 429, 
 
 285, 396, 1478 
 
 Wolfs. National Marine and Fire Ins. Co., 20 
 
 La. An., 583, 484 
 
 e. Goodhue Fire Ins. Co., 43 Barb., 400, 
 
 555 
 
 Wolfe V. Horncastle, 1 B. & P., 316, 696 
 
 s. Howard Ins. Co., 1 Sandf, 124; 7 N.T., 
 
 583, 389 
 
 ■». Security Ins. Co., 39 N. Y., 49, 59 
 
 Wolroth V. St Lawrence County Mut Ins. Co., 
 
 10 U. C. Q. B., 525, 1384 
 
 Wood V. Dwarris, 11 Exch., 493 ; 25 L. J. Ex., 
 
 129, 508 
 
 V. Hartford Fire Ins. Co., J3 Conn., 533, 
 
 651, 1516, 1528 
 
 V. Howard Ins. Co., 18 Wend., 646, 
 
 399 
 
 ■». New England Mut. Ins. Co., 14 Mass., 
 
 31, 190, 296 
 
 V. Northwestern Ins. Co., 46 N. T., 431, 
 
 52, 751 
 
 V. Phoenix Mutual Life Ins. Co., 22 La. 
 
 An., 617, 174 
 
 V. Pleasants, 3 Wash. C. C, 201, 
 
 425, 1025, 1060 
 
 «. Poughkeepsie Ins. Co., 32 N. T., 619, 
 
 337 
 
 ■». Rutland Mutual Fire Ins. Co., 31 Vt., 
 
 552, 357, 996 
 
 Woodbury Savings Bank v. Charter Oak Ins. 
 
 Co., 29 Conn.,. 374, 76 
 
 V. Charter Oak Ins. Co., 31 Conn., 517, 
 
 762, 1171 
 
 Woodfin V. Asherville Mutual Ins. Co., 6 Jones 
 
 Law, 558, 836, 927 
 
 Woodruff v. Columbus Ins. Co., 5 La. An., 
 
 697, 886, 1180 
 
 —■ — V. Commercial Mutual Ins. Co., 2 Hilt., 
 
 122, 1195 
 
 V. Commercial Mutual Ins. Co., 2 HilL, 
 
 130, 1164 
 
 Woods v. Atlantic Mutual Ins. Co., 50 Mo., 
 112, 375 
 
 Woodworth v. Insurance Co., 5 Wall., 87, 
 
 1335 
 
 Wooldridge v. Boydell, 1 Doug., 16, 987 
 
 Woolf B. Claggett, 3 Esp., 257, 422 
 
 Woolmer v. Mulman, 1 W. Bl., 427, 813 
 
 Wooster v. Page, 54 N. H., 125, 187 
 
 Worcester, City of, v. Worcester Mut. Fire 
 
 Ins. Co., 9 Gray, 27, 1527 
 
 Worcester Bank c. Hartford Fire Ins. Co., 11 
 
 Cush.^2e5, 854 
 
 Work V. Merchants and Farmers Mutual Fire 
 
 Ins. Co., 11 Gush., 271, 75 
 
 Workman v. Louisiana Ins. Co., 2 La. (O. S.), 
 
 507, 1001 
 
 Works t). Farmers Ins. Co., 57 Me., 281. 
 
 833 
 
 World Mutual Life Ins. Co. o. Schultz, 5 Ins. 
 
 L. J., 34, 1304 
 
TABLE OF CASES. 
 
 Ixxix 
 
 Worsley e. Wood, 6 Term, 710; 2 H. Bl., 
 574, 271 
 
 Worthington v. Bearse, 12 Allen, 883, 
 
 105 
 
 e. Charter Oak Life Ins. Co., 41 Conn., 
 
 873, 907 
 
 Wright t). Barnard, 3 Esp., 700, 486 
 
 V. Hartford Fire Ins. Co., 86 Wis., 523, 
 
 822, 1134 
 
 V. Orient Mut. Ins. Co., 6 Bos., 269, 
 
 1357 
 
 V. Shiflfner, 11 East, 515; 2 Camp., 347, 
 
 1237 
 
 «. Ward, 34 L. T. (N. S.), 439, 139 
 
 c. Welbie, 1 Chitty, 49, 364, 1483 
 
 Wttstum 0. City Fire Ins. Co., 15 Wis., 138, 
 
 836 
 
 Wyman v. Peoples Equity Ins. Co., 1 Allen, 
 
 301, 1129, 1377 
 
 Wynne v. Liverpool, London and Globe Ins. 
 
 Co., 71 N. C, 121, 125, 1203 
 
 Xenos e. Fox, 4 L. R. C. P., 65; 3 id., 630; 38 
 L. J. C. P., 851 ; 16 W. R, 1053 ; 17 id., 
 893, 1033 
 
 V. Wickham, 3 L. R Eng. & Ir. App., 396 ; 
 
 14 C. B. (K. S.), 861; 16 L. T. (N. S.), 
 800; 16 W. R, 38; 36 L. J. C. P., 313; 
 13 C. B. (N. 8.), 381; 14 id., 435; 9 
 Jnr. (N. S), 471; 10 id., 339; 11 W. 
 R, 1067; 83 L. J. C. P.. 13. 
 
 1092, 1224 
 
 Y. 
 
 Yates 0. Whyte, 4 Bing. (H . C), 272 ; 7 l! J. (N. 
 
 S.)'C. P., 116, 1348 
 
 Teaton v. Fry, 5 Cranch., 335, 291 
 
 Yclton e. Smith, Faculty Dec, 1801 to 1807, p. 
 
 7, 669 
 
 York County Mutual Fire Ins. Co. v. Bowden, 
 
 57 Me., 286, 155 
 
 0. Knight, 48 Me., 75, 1320 
 
 V. Turner, 53 Me., 235, 154 
 
 Young 0. Deas, Faculty Dec, 1796 to 1801, p. 
 
 140, 1477 
 
 o. Eagle Fire Ins. Co., 14 Gray, 150, 
 
 97, 161 
 V. Pacific Mut. Ins. Co., 3 J. & Sp. (N. 
 
 Y.),321, 848 
 V. Turing, 2 M. & G., 593 ; 2 Scot N. R, 
 
 753, 1401 
 c. Washington County Mut Ins. Co., 14 
 
 Barb., 545, 1148 
 
 Yonkers Ins. Co. v. Hoffman Fire Ins. Co., 6 
 
 Rob. (N. Y.), 816, 501, 1184 
 
 z. 
 
 Zacharie v. Orleans Ins. Co., 17 Martin (La.), 
 637, 1045 
 
 Zallee v. La Clede Mutual Fire and Marine 
 Ins. Co., 44 Mo., 530. 140 
 
 Zeno V. Louisiana State Ins. Co., 2 La. (O. 8.), 
 533, 1373 
 
 Zino e. Louisiaaa Ins. Co., 18 Martin (La.), 63, 
 
 1378 
 
 V. Westmore, 6 Esp., 109, 1002 
 
A DIGEST 
 
 OF 
 
 THE LIV OF INSUEANCE. 
 
 ABANDONMENT. 
 
 (SeeFBEiQHT; JIastek or Ship ; Total Loss.) 
 
 I. Who may make. 
 II. What is sufficiknt. 
 
 III. IS NOT SUFFICIENT. 
 
 IV. JUSTIFIES. 
 
 V. DOES NOT JUSTIFY. 
 
 VI. When necessaby. 
 
 VII. NOT NECESSARY. 
 
 ■ VIII. IN TIME. 
 
 IX. NOT IN TIME. 
 
 X. What -waives the kight. 
 XI. does not waive the kight. 
 
 XII. When conclusive. 
 
 XIII. What it carries. 
 
 XIV. IS AN acceptance of. 
 XV. IS not an acceptance of. 
 
 XVI. Genekally. 
 
 I. "Who mat make. 
 
 1. The person insured for whom it may con- 
 cern, loss payable to himself, is authorized, 
 prima facie, to abandon in case of loss for 
 himself and for those for whom the insurance 
 was effected. Beynoldx «. Ocean Ins. Go., 23 
 Pick., 191. 
 
 2. The agent who makes insurance for his 
 principal has authority to abandon to the in- 
 surers without a formal letter of attorney ; and 
 a deed of cession is unimportant, because it is 
 not essential to the rights of either party. 
 Chesapeake Ing. Co. v. Stark, 6 Cranch, 368. 
 
 3. There was not any evidence of a formal 
 
 1 
 
 abandonment; but the person who held the 
 policy called on insurers and made a demand 
 as for a total loss. Insurers asked him if the 
 policy was indorsed, or if he had a power of 
 attorney; he answered in the negative; and 
 insurers told him the matter must lie over 
 till he obtained authority. The person who 
 made the demand was the same who effected 
 the insurance. Held, he was authorized to 
 abandon, and demand for a total loss was an 
 abandonment. Gaaaedy v. Louisiana State Ins. 
 Co., 18 Martin (La.), 431. 
 
 II. "What is sufficient. 
 
 1. The master's protest, made before the 
 American consul, contained the following 
 clause: " I, the said consul, at the request of 
 the said master, Joseph Seward, do hereby in- 
 timate, declare and make known to the under- 
 writers of the said schooner Francis, and to 
 the underwriters upon her cargo, that the said 
 master for himself, and in behalf of the own- 
 ers of said schooner and cargo, doth abandon, 
 cede, and leave to them, the said underwriters, 
 and to each and every of them, all his, the 
 said master's, and theirs, the said owners, 
 right, title, interest, profit, property, claim, de- 
 mand and produce of and in the said schooner 
 Francis and her cargo, and to the tackle, ap- 
 parel and furniture of said schooner, and that 
 the aforesaid master doth claim on behalf as 
 aforesaid reimbursement for the same as a 
 total loss." This was forwarded to the insur- 
 ers May 4th, and the insurers said that further 
 
 1 
 
ABANDONMENT. 
 
 What is not sufficient. 
 
 proof of loss would receive immediate atten- 
 tion. On the 5th, further proofs of the loss 
 and a statement of it were forwarded to the 
 underwriters ; the protest was sent by the in- 
 sured to their insurers. Held, if it had been 
 communicated from the master directly with- 
 out authority shown by him to make abandon- 
 ment, it would have been invalid; but when 
 the insured sent the protest which contained 
 a notice of abandonment made by the direc- 
 tion of the master, they then adopted his act 
 and it became a valid abandonment Patcupaco 
 Ins. Co. «. Boutli.gate, 5 Pet., 604. 
 
 2. The goods were seized by the French 
 government, of which insured had notice Au- 
 gust, 1793. Tellow fever soon after made its 
 appearance in Philadelphia, and insured re- 
 tired with his family to the country, Septem- 
 ber 10th. After the pestilence abated, he, in 
 common with other citizens, returned to Phil, 
 adelphia November 19th, and then went on a 
 business journey to South Carolina Januaty 
 2lBt following. In a letter to his insurers he 
 stated that he " meant to abandon." Held, it 
 was sufScient if the plaintiff made out that he 
 meant to abandon; whether the abandonment 
 was in time was a question for the jury, who 
 were to decide whether it was made within a 
 reasonable time. BeU ®. Beoeridge, 4 Dall., 
 272; 1 Binn., 52n. 
 
 3. All that the law requires to give validity 
 to an abandonment is an unequivocal deter- 
 mination and offer to abandon, together with 
 the particular cause upon which it is ground- 
 ed, and the requisite documents. Proof of in- 
 terest and loss may be delivered at any time 
 after the abandonment. Barker «. Phmnix Ins. 
 Co., 8 Johns., 307. 
 
 4. The letter of abandonment stated: "Hav- 
 ing received information of the condemnation 
 of the ship at Humboldt, Cal., I hereby aban- 
 don all in said vessel insured by policy of the 
 Eagle Ins. Co., No. 105, dated July 15, 1850, 
 for |5,000, and claim as for a total loss." Held, 
 a.sufBcient abandonment. Heefmer v. Eagle 
 Ins. Co., 10 Gray, 131. 
 
 5. The broker who effects the policy is the 
 agent of both parties, and a notice of aban- 
 donment to him is suflicient. Crousillat «. Ball, 
 STeates, 375; 4 Dall., 294. 
 
 6. The " Wilmington," while navigating the 
 Mississippi, exploded one of her boilers; she 
 was partially destroyed, and many lives lost. 
 She was towed to the port of St. Louis, where 
 
 the insurers kept their principal oflSce. In- 
 sured abandoned her at St. Louis, and stated 
 as cause for abandonment, "the destruction 
 of the Wilmington by the late disaster." Held, 
 a sufficient assignment of the true cause. Citi- 
 zens' Ins. Co. V. Glasgow, 9 Mo., 406. 
 
 III. What is not sufficient. 
 
 1. On cargo to port or ports at Cuba, thence 
 to the home port, free from loss which might 
 arise in consequence of a seizure, or detention 
 for or on account of illicit or prohibited trade. 
 Persons pretending to exercise authority pre- 
 vented vessel from entering the port of destina- 
 tion. She attempted to make another Cuban 
 port but was driven, by bad weather, into Port 
 Bepublican, in the island of Hispaniola, at 
 which persons pretending to have authority- 
 took out the cargo, against the will of the 
 master, who was forced to sell it there at a 
 great loss. Insured abandoned and stated as 
 the ground of abandonment, that the master 
 was not permitted to enter the port of destina- 
 tion. Held, a denial of entry at the port of 
 destination without any seizure or arrest by 
 government is not a loss within the policy; . 
 that the cause assigned being insufficient, the 
 insured was bound by it, and could not be 
 permitted to urge a subsequent cause without 
 making a new abandonment on that ground. 
 Buydam v. Marine Ins. Co., 1 Johns., 182. 
 
 2. If the causes assigned for breaking up 
 the voyage are not sufficient to authorize it, 
 the insurer is not liable for loss on ship, car- 
 go, or freight. Craig v. United Irts. Co., 6 
 Johns., 226. 
 
 3. The notice of abandonment stated: "The 
 vessel has been compelled to seek the port of 
 Savannah, in distress, where she arrived, we 
 hear, with several feet of water in her hold. 
 The cargo was landed and found very serious- 
 ly damaged." Held, the notice of abandon- 
 ment was insufficient, for it ought to have 
 stated truly, not only the grounds of abandon- 
 ment, but they should have been set forth with 
 such particularity that the underwriter could 
 have determined from it whether he was or 
 was not bound to accept the abandonment 
 McConochie ®. Sim Mut. Ins. Co., 26 N. Y., 
 477; reversing 8. C, 3 Bos., 99. 
 
 4. Insured offered to abandon in the follow- 
 ing words: "I observe by the Boston news- 
 
ABANDONMENT. 
 
 What justifies. 
 
 paper of January 29th, that the ship General 
 Smith, insured in your office per policy 7661, 
 ■was driven ashore in a heavy gale of wind De- 
 cember 6th, and bv a Cli&rleston paper of Jan- 
 uary 26th, that on the IStli slie was not got off. 
 In so dangerous a situation as Helvoet Boads, 
 it is to be feared a total loss lias ensued ; I 
 therefore, as a measure of precaution both for 
 your interest and my own, abandon to you and 
 claim for a total loss." Held, mere stranding 
 is not cause for abandonment, nor does immi- 
 nent danger of being wrecked justify an aban- 
 donment and recovery for a total loss. The 
 danger must not only be imminent, but the 
 loss must be in the highest degree probable. 
 Bosley v. Oliesapeake Ins. Co., 3 G. & J., 450. 
 
 IV. "What justifies. 
 
 1. On cargo. Ship was taken by a British 
 privateer and carried into New Providence. 
 Insured abandoned as soon as intelligence of 
 the capture reached them. She was liberated 
 before the abandonment was made, but the 
 liberation was unknown to either party. Held, 
 the abandonment was properly made ; that it 
 fixed the rights of the parties conclusively. 
 Slocum V. United Ins. Go., 1 Johns. C, 152 ; 
 Mumford -o. Church., id., 147 ; both of which 
 cases have been overruled; Hallett v. Peyton, 
 1 Gaines C, 28. 
 
 2. Two policies, one on ship and one on 
 freight, at and from Charleston to Liverpool. 
 Ship was ready for sea April 3d, set sail the 
 next day, and when about half way between 
 the city and the bar, was compelled by head- 
 winds to anchor at Rebellion Roads, and was 
 there detained till April 10th, when an embar- 
 go became effectual against her. April 20th 
 she was abandoned to the Insurers. Seld, the 
 embargo was a justifiable cause of abandon- 
 ment. Ogden v. JV. T. Ins. Co., 10 Johns., 
 
 177. 
 
 3. "Warranted not to abandon in case of 
 capture or detention until six months after 
 notice thereof delivered to the company." 
 ffeld, it did not extend to a case of condemn- 
 ation, but limited the right of the insured to 
 abandon in cases of capture and detention. 
 Offden V. Oohimbian Ins. Co., 10 Johns., 273. 
 
 4. The master's inability to procure the 
 necessary money to make repairs may be a 
 valid cause for abandonment, though the ves- 
 sel is not damaged to one-half her value, and is | 
 
 not at tlie port of destination. American Ins. 
 Co. V. Ogden, 15 Wend., 533. 
 
 5. In order to defeat the right to abandon, 
 the insurers must be able, at the port of neces- 
 sily,to defray all expenses of placing her in 
 staiu quo. They have no right to split the re- 
 pairs into parts, making her seaworthy only 
 at that port, and the residue at the port of des- 
 tination or elsewhere. Center v. Amiriean Ins. 
 Co., 7 Cow., 564; affirmed, 4 Wend., 46. 
 
 6. Ship was very badly damaged at the port 
 of Havana. Surveyors were appointed, and 
 they reported it would cost |9,900 to make full 
 repairs, a sum greatly exceeding a moiety -of 
 her value; but that partial repairs, sufficient 
 to enable her to proceed to New York, might 
 be made for $960. These were made, but at 
 an expense of $2,170, a sum greatly exceeding 
 the estimate. She proceeded to New York 
 with a light cargo, and insured offered to 
 abandon on the ground that the damage ex- 
 ceeded one-half her value. She was sold for 
 $8,000, and repaired there at an expense of less 
 than half her value (after deducting one-third 
 new for old.) Seld, making partial repairs at 
 the port of distress, to enable the vessel to pro- 
 ceed to one where she might be fully repaired, 
 were expenses in the nature of salvage, for the 
 benefit of all concerned, and did not impair 
 the owner's right to abandon. Saurez v. Sun 
 Mut. Ins. Co., 2 Sand., 482. 
 
 7. Master's letter stated, ship had been sur- 
 veyed and condemned on the ground that ex- 
 penae of repairs would not warrant making 
 them. Insured forwarded the letter to insur- 
 ers and offered an abandonment, which was 
 refused. Within thirty days thereafter the 
 master arrived and insured exhibited his pro- 
 test and the survey, and claimed a total loss. 
 The protest stated she had sprung a leak in a 
 heavy sea, and was kept free with great diffi- 
 culty ; that she came to anchor ; was surveyed 
 and declared incapable of proceeding unless re- 
 caulked and recoppered ; that the expense of 
 doing that, With other incidental charges, 
 would have exceeded her value. Held, a suffi- 
 cient abandonment. Thwir.g v. Washington 
 Ins. Co., 10 Gray, 443. 
 
 8. The survey and other papers relating to 
 the loss were delivered to insurers within a 
 few days after insured received notice of the 
 loss ; and insured made claim for a total loss. 
 Edd, an abandonment need not be in writing; 
 an oral abandonment was sufficient if insured 
 
 3 
 
ABANDONMENT. 
 
 What does not justify. 
 
 distinctly indicated to insurers that there was 
 a total loss by the peril insured against. Sil- 
 loway ». Neptwne Ins. Co., 13 Gray, 73. 
 
 9. To authorize an abandonment there must 
 be at the time of the abandonment, or at least 
 of the last previous intelligence, a total loss, 
 actual or constructive. It is the settled doc- 
 trine in the United States, if the abandonment 
 be justified by the facts at the time, the rights 
 of the parties are fixed, and will not be changed 
 by subsequent events independently of their 
 own acts or consents, and if the expense of 
 repairing an injury witliin the policy exceed 
 half the value of the vessel insured, the in- 
 sured may abandon and recover as for a total 
 loss. Oineinnati Ins. Co. v. Bakewell, 4 B. 
 Mon., 541. 
 
 10. The repairs exceeded one-half the value 
 of the vessel. Held, sufficient to justify an 
 abandonment. Eedley v. Nashville Ins. Go., 6 
 Rich., 130. 
 
 11. Ship struck a snag and sunk. Held, if 
 her condition was such as to produce in the 
 minds of practical and reasonable men the 
 opinion that she could not be raised and re- 
 paired at a cost of less than half her value at 
 the port of repairs, insured could abandon as 
 for a constructive total loss ; and, the fact that 
 she was afterwards raised and repaired at a 
 cost less than that did not take away the right. 
 Fulton Ins. Oo. v. Goodman, 33 Ala., 108. 
 
 13. If the boat after it was sunk was not 
 worth half as much as it would have been 
 afloat, free from the injuries that caused the 
 sinking, insured had the right to abandon as 
 for a total loss. Lockwood «. Sangamo Ins. 
 Co., 46 Mo., 71. 
 
 1 3. It is laid down by Mabshall, Pakk 
 and Lord Mansfield, that " if the voyage be 
 lost or not worth prosecuting, if the salvage be 
 high and further expense necessary, and if 
 the insurer will not, at all events undertake to 
 pay that expense, the insured may abandon." 
 Hyde v. Louisiana State Ins. Co., 14 Martin 
 (La.), 410. 
 
 14. Ship was surveyed in port near the 
 Cape of Good Hope, October 18, 1859, of 
 which the master advised the ship's husband 
 at Liverpool, and directed him to give insur- 
 ers notice. November 18th following, master 
 wrote ship's husband, describing damage. 
 That it was the opinion of the surveyors she 
 could not go home with partial repairs, and 
 that after complete ropairs, she would not be 
 
 4 
 
 worth the expense of repairing. This letter 
 was forwarded to insurers November 24th. 
 The master executed a notarial act of aban- 
 donment, and sold her December 9th follow- 
 ing. On the 20th he again wrote the ship's 
 husband, stating that it was for the interest of 
 all concerned to abandon and sell her without 
 repairs ; that he had sold her, and requested 
 notice thereof to be given insurers, which was 
 accordingly done. She was not in fact worth 
 the expense of repairing. Held, sufficient no- 
 tice of abandonment to create a constructive 
 total loss, and that it was made in time. King 
 V. Walker, 3 H. & C. 309; 11 Jur. (N. 8.), 43; 
 33 L. J. Ex., 395; 13 W. R., 233; reversing 
 S. C, 2 H. & C, 384; 33 L. J. Ex., 167. 
 
 Y. "What does not justify. 
 
 1. Information of capture and recapture 
 and arrival at Plymouth, where recapturers 
 libelled as salvors. Held, did not confer the 
 right to abandon. Muirv. United Ins. Oo., 1 
 Caines, 49. 
 
 2. The insured on ship cannot abandon her 
 and recover for a total loss,if she can be repaired 
 for less than one-half her value ; and the fact 
 that the voyage has been broken up, because 
 the cargo was not in a condition to await re- 
 pairs, does not aid the right to abandon ship. 
 Goold V. Shaw, 1 Johns. C, 393. 
 
 3. A technical total loss had occurred, and 
 the insured abandoned immediately on hear- 
 ing of the disaster; but she was then in safe- 
 ty, on her voyage home, the master having 
 caused her to be repaired. Held, the right to 
 abandon and recover for a total loss was di- 
 vested. Dickey v. American Ins. Co., 3 Wend., 
 658. 
 
 4. If the vessel had completed her voyage 
 and reached the port of destination in a re- 
 pairable state where the owners reside, an 
 abandonment cannot be made. Peneant v. Na- 
 tional Ins. Co., 15 Wend., 453. 
 
 5. Assuming that the facts were such as 
 would have conferred the right upon insured 
 to abandon, yet after the vessel was repaired 
 and successfully pursuing the voyage, the 
 right to abandon ceases, and the recovery, if 
 any, must be for a partial loss only. Hepau e. 
 Ocean Ins. Co., 5 Cow., 63. 
 
 6. Valued policy, which insured to the 
 amount valued; ship was captured and recap. 
 
ABANDONMENT. 
 
 10 
 
 What does not justify. 
 
 tured, and an abandonment made to foreign 
 insurers, who accepted it and paid a total 
 loss. Afterwards insured oflFered to abandon 
 to insurers in the United States. Held, the 
 first abandonment left him nothing to aban- 
 don here. Higginson v. Ball, 13 Mass., 96. 
 
 7. Where the insured is not in a position to 
 make an abandonment, he must recover, if at 
 all, for a partial loss ; and he cannot abandon 
 after the vessel has been surveyed and sold 
 for account of whom it may concern. Gor- 
 don v. Mass. Fire & Marine Ins. Co., 2 Pick., 
 249. 
 
 8. The expense of saving the goods and 
 sending them on to the port of destination 
 would have been less than fifty per cent, of 
 the invoice value. Held, the master was not 
 authorized to sell them at the port of necessi- 
 ty, and his sale conferred no right to abandon. 
 Bryant v. Oommonwealth Ins. Co., 6 Pick., 131. 
 
 9. Imminent danger of total loss gives no 
 right to abandon, and if ship arrives at a place 
 where her repairs will cost less than fifty per 
 cent, of her value, the abandonment cannot be 
 enforced. Hall v. Franklin Ins. Co., 9 Pick., 
 466. 
 
 1 0. Where a vessel reaches a port of dis- 
 tress, and she is sold by the master, a part 
 owner, without consulting insurers, and a 
 claim for total loss is made upon the insur- 
 ers — they being credited with the proceeds of 
 the sale and charged with the full value of the 
 vessel ; and this action was brought averring 
 the interest to be in the master and the other 
 owners jointly. Seld, the master could not 
 set up his own unauthorized act as the foun- 
 dation of the claim ; that no distinction could 
 be made between his rights and the other part 
 owners ; that the master could not make an 
 effectual abandonment, because the sale hud 
 passed his interest in the vessel; and the other 
 part owners by joining in the claim, and by 
 giving credit for the proceeds of the sale, had 
 ratified it, and so disqualified themselves to 
 abandon; that the ow^ners were not warranted 
 by the condemnation and sale of the vessel to 
 make an abandonment; and that the master 
 did not, under the circumstances, become the 
 agent of the insurer, so as to throw on the in- 
 surer the responsibility of'the unauthorized 
 sale. Pierce v. Ocean Ins. Co., 18 Pick., 83. 
 
 11. Vessel stranded. Insurers refused 
 abandonment, but took possession, got her off, 
 repaired, and offered to restore her within a 
 
 reasonable time. Insured made no objection 
 on account of the incompleteness of the re- 
 pairs, though deficiencies in the repairs were 
 afterwards discovered. Held, this did not 
 make the abandonment effectual. Reynolds v. 
 Ocean Ins. Co., 22 Pick., 191. 
 
 1 2. Policy provided, " In case of capture or 
 restraint, assured is not to abandon until the 
 property is condemned, nor until it shall have 
 been proved to have been ninety days under 
 detention." It was seized and detained for 
 more than ninety days, and insured then 
 abandoned ; but at the time the abandonment 
 was offered, the property had been restored to 
 the agent of insured. Held, the abandonment 
 was ineffectual. Borr v. Union Ins. Co., 8 
 Mass., 502. 
 
 1 3. Vessel was captured and an abandon- 
 ment made, when the insurer supposed the 
 loss continued total, but was after the final ac- 
 quittal and order for, yet before actual restitu- 
 tion. Held, the abandonment was too late. 
 Adams «. Belaware Ins. Co., 3 Binn., 287. 
 
 14. Ship was cast upon the rocks at Hell 
 Gate, and there remained up to the time of 
 abandonment without increase of danger. The 
 chances were in favor of getting her off, 
 though good judges doubted the success of 
 the experiment. Held, the master was bound 
 to make the experiment, and, until its results 
 were known, there could be no right to 
 abandon. King v. Hartford Ins. Co., 1 Conn., 
 422. 
 
 1 5. Seizure and appropriation by a foreign 
 power of a vessel insured,without sentence of 
 condemnation, gives no right to abandon. 
 Bavney v. Maryland Ins. Co., 5 H. & J., 139. 
 
 16. On schooner, her stores and passage 
 money. 8he was driven into Key West where 
 she was libelled by her passengers to refund 
 the passage money, on the ground that she was 
 not seaworthy at the commencement of the 
 voyage. The district court decreed against 
 the vessel, and she was sold to satisfy the de- 
 cree. Held,, insured could not abandon, be- 
 cause the thing insured was taken out of the 
 conti-ol of insured by an act not insured 
 against (citing Rice «. Homer, 12 Mass., 
 230). But he was entitled to recover for the - 
 expense of repairing the vessel. Marks v. 
 NiishmlU Marine and Fire Ins. Co., 6 La. An., 
 126. 
 
 17. Ship was captured July 15th, carried 
 into Sierra Leone the 26th, and restored Au- 
 
 S 
 
11 
 
 ABANDONMENT. 
 
 12 
 
 When necessary. 
 
 gust 4th. She had permission to remain four 
 months on the coast to trade. Hdd, no ground 
 for abandonment. Messonierv. Union Ins. Co., 
 1 N. & McC, 155. 
 
 18. Stipulated: "In case of capture, in- 
 sured shall not abandon till condemnation. 
 She was warned by the British authorities not 
 to prosecute the trade further, but this was 
 unauthorized by the law of nations. Held, 
 that a fear of seizure did not authorize an 
 abandonment of the voyage. Measonier v. 
 Union Ins. Co., 1 N. & McO., 155. 
 
 19. On goods to Naples, Leghorn or Mes- 
 sina, with liberty to touch at Gibraltar or 
 any other port in the Mediterranean. She 
 arrived at Minorca and found Messina in the 
 possession of, or blockaded by the French. 
 Insured oflFered an abandonment. Held, not 
 sufficient to warrant abandonment. iMbioek 
 V. Boweroft, 5 Esp., 50. 
 
 20. On goods from Liverpool to any port in 
 the river Platte. Policy was made after those 
 ports were advertised blockaded. Ship sailed 
 after they were advertised, and was taken by a 
 Brazillian frigate in the river Platte, and sent to 
 Rio for adjudication; but the master and crew 
 rescued her, navigated her to Liverpool; land- 
 ed and warehoused the cargo. Insured aban- 
 doned before they heard of the rescue, and 
 the jury found specially that the master did 
 not intend to violate the blockade. Held, the 
 abandonment could not be sustained, because 
 the right to abandon was to be governed by 
 the facts as they existed at the time it was of- 
 fered. Naylor «. Taylor, 9 B. & C, 718; 4 M. 
 & B., 536. 
 
 YI. When necessaet. 
 
 1. If insured declares for a total loss, but 
 has never abandoned, the jury may estimate 
 the spes reeuperandi, and find for the balance. 
 Watson V. Ins. Co. of North America, 1 Binn., 
 47; 4Dall., 283. 
 
 2. If a total loss is claimed, and the proof 
 shows, at most, a constructive total loss, the 
 insured must make a sufficient and valid 
 abandonment before he can recover for it. 
 Lowering ■b. Mercantile Ins. Co., 12 Pick., 348. 
 
 3. On ship, from Spain to the United States 
 (valued). Cargoconsistedpartly of wine; the 
 deck load was in the long-boat amidships. 
 She sprung her mainmast-, sustained other sea 
 damage on the voyage, and put into St. 
 
 a 
 
 Thomas. Surveyors estimated cost of re- 
 pairs would be nearly $1,400, and that her 
 value after repairs would be about $1,000. 
 She was sold, and brought $460. Held, in- 
 sured might have abandoned and recovered, 
 for a total loss ; but, without abandonment, he 
 must recover for a partial loss only. Ameri- 
 can Ins. Co. V. Francia, 9 Penn. St., 390. 
 
 4. Although the policy stipulates against 
 captures, yet if the capture and condemnation 
 be contrary to the law of nations and without 
 fault of master, owner or mariners, the prop- 
 erty cannot be considered ■ as finally lost, for 
 they may call on the government to demand 
 and obtain satisfaction of the nation (G. B.) 
 whose subjects have committed the injury, or 
 upon the government itself to make repara- 
 tion for not protecting the owners in their 
 just rights, or for not obtaining redress from 
 those who committed the injuiy; and, there- 
 fore, before recovery can be had for a techni- 
 cal total loss, the insured must abandon. Tovm- 
 send V. Phillips, 2 Boot, 400. 
 
 5. If there is spes reeuperandi, insured must 
 abandon before he can recover as for a total 
 loss. Barney «. Maryland Ins. Co., 5 H. & J., 
 139. 
 
 (>. Ship was abandoned at sea by the mas- 
 ter and crew, in December, and was taken by 
 the crew of another vessel, who brought Ijer 
 into Boston, and libelled her for salvage, 
 where she was sold at auction, and the pro- 
 ceeda carried into court. The salvors were 
 paid; the balance of proceeds, $1,043.96,, was 
 paid to her owners, and a balance of $31.23, 
 proceeds of the cargo, was paid to the same. 
 Insurers were notified by telegraph of her ar- 
 rival in Boston in possession of salvors, who 
 found her abandoned at sea, and asked for In- 
 sti-uctions ; five days thereafter, B. wrote to in- 
 surers, reiterating the Information contained 
 in the telegram, and requesting an answer; 
 and, after she was libelled by the salvors, in- 
 formation thereof was sent to insurers, and 
 they were asked to give directions, all which 
 was done in behalf of insured, but insurers 
 paid no attention to it. Held, insured could 
 not recover for an actual nor for a construct- 
 ive total loss, for there was no abandonment; 
 but they were entitled to recover for a par- 
 tial loss. Thomas v. Boekland Ins. Co., 45 Me., 
 116. 
 
 7. The cargo was insured by a valued poli- 
 cy. It was confiscated and sold by the ene- 
 
13 
 
 ABANDONMENT. 
 
 14 
 
 Wlien not necessary. 
 
 my, but the enemy permitted the foreign con- 
 signee to retain the amount of his advances 
 from the proceeds; no abandonment was 
 made. Held, the insured had his option to 
 make it a total or a partial loss, and that he 
 had, by a failure to abandon, elected the latter. 
 Goldsmid v. OilUes, 4 Taunt., 803. 
 
 8i The insured cannot recover for an alleged 
 total loss, unless he proves that the property 
 was consumed by Are, or sunk in the ocean or 
 the like, or he must show an abandonment of 
 the subject insured. Town»end v. PhilUpt, 3 
 Boot, 400; Milks i>. Fletcher, 1 Doug., 231; 
 Mitchell V. Sdie, 1 Term, 608. 
 
 9. There must be an abandonment of freight 
 if the cargo exists, although the ship is inca- 
 pable of prosecuting the voyage. Parmeter v. 
 Todhunter, 1 Camp., 541. 
 
 10. A vessel was driven into a port where 
 there was no dock to make repairs. She was 
 surveyed and it was judged expedient to break 
 her up and sell her as old timber. Held, an 
 abandonment was necessary before insurers 
 could be called upon to pay a total loss. Bell 
 ». Nixon, Holt, N. P., 423. 
 
 1 ] . Ship was obliged to put into a port of 
 safety. The insured did not abandon, but ap- 
 plied to insurers for instructions how to pro- 
 ceed, upon an estimate of repairs, who de- 
 clined to interfere. Insured directed a sale of 
 the ship and cargo for the benefit of all con- 
 cerned, which, after payment of salvage, left 
 a balance against the insured of £30. Held, he 
 could not recover for a total loss, because no 
 abandonment had been made. Martin n. Cro- 
 katt, 14 East, 446. 
 
 1 2. " On flax, warranted free from par- 
 ticular average." Ship was wrecked off Rye, 
 and all hands perished. Part of it floated on 
 shore in a loose state, mixed with a little 
 sand, and injured. Part was gotten out of the 
 hold — about a ton; that which floated ashore 
 was sold on the spot, the net proceeds amount- 
 ing to £11. No abandonment was made. Held, 
 where the thing exists in specie there must be 
 an abandonment to constitute a total loss; 
 that as to the flax totally lost, the insurers 
 were liable without abandonment; but as to 
 that which existed in specie, they were not 
 liable. Davy v. Milford, 15 East, 559. 
 
 13. A time policy — one year, ending Sep- 
 tember 23d. Ship' was stranded, got ofl", 
 brought into Santa Croix harbor, September 
 16th, where she remained till the middle of 
 
 October, during which time she was kept free of 
 water and cargo discharged into other vessels. 
 She was then beached, surveyed, and found 
 so much damaged that necessary repairs could 
 not be made, there being no dock, workmen 
 or materials; nor could she have been taken to 
 any port where repairs could have been pru- 
 dently made. Master, a part owner, sold her , 
 for benefit of whom it might concern. No- 
 tice of abandoment was not given. Held, not 
 an absolute total loss, and that it was not a 
 technical total loss because an abandonment 
 had not been made. Knight v. Faith, 15 Q. B., 
 649; 19 L. J., Q. B., 509; 14 Jur., 1114. 
 
 YII. "When not neoessaet. 
 
 1. Ship was sold at a port of distress on 
 the ground that when repaired, she would be 
 worth less than the cost of repairs. -Held, if 
 the injuries sustained by perils of the sea 
 were so great that they could not be repaired, 
 so as to make her seaworthy, except at an ex- 
 pense exceeding her value when repaired, then 
 it was a case of actual total loss and an aban- 
 donment was not necessary. Bullard v. Roger 
 Williams Ins. Co., 1 Curtis, 148. 
 
 2. Where a vessel has not been heard of for 
 a time long enough to raise a presumption of 
 her loss, an abandonment is not necessary. 
 Gordon e. Bowne, 2 Johns., 150. 
 
 3. Where the property is destroyed or the 
 title legally divested by a lawful sale, an aban- 
 donment is not necessary. Gordon e. Mass. 
 Fire and Marine Ins. Go., 2 Pick., 249. 
 
 4. The jury were instructed that a vessel on 
 the high seas might be considered as totally 
 lost, if by the violence of the wind and waves 
 she became a wreck and was incapable of be- 
 ing saved and brought into port. The jury 
 found an actual total loss. Held, an abandon- 
 ment was not necessary, for the obvious reason 
 that there was nothing to abandon. Walker v. 
 Protection Ins. Co., 29 Me, 317. 
 
 5. The boat was sunk and the whole cargo 
 damaged. Cargo was speedily sent to New Or- 
 leans, and there sold without notice to or in- 
 terference by the insured. Held, no abandon- 
 ment was necessary. Portsmouth Ins. Go. v. 
 Brazee, 16 Ohio, 81. 
 
 6. On seventy-flve hogsheads of sugar from 
 New Orleans to Cincinnati, dated April 19, 
 1861. The boat was passing Helena, Ark., 
 when a mob fired a cannon across her boW| 
 
 7 
 
15 
 
 ABANDONMENT. 
 
 16 
 
 When in time. 
 
 compelled her to land, and took possession of 
 vessel and cargo. Twelve days thereafter the 
 state seceded. The plaintiffs were residents 
 of Cincinnati. Communication between New 
 Orleans and Cincinnati ceased and was not 
 reopened until the spring of 1863. A demand 
 for payment, as for a, total loss, was made 
 early in 1864, and this action was commenced 
 in February of that year. Meld, an abandon- 
 ment in legal form would at all times have 
 been an idle ceremony, and would have been 
 of no benefit to the insurers (citing MuUett 
 e. Sheddon, 13 East, 804 ; Mellish v. Andrews, 
 15 id., 3); that the demand for payment, as 
 for a total loss amounted to an abandonment 
 (citing Cas^edy v. Louisiana Ins. Co., 18 Mar- 
 tin, La., 422). Babbitt v. Sun Mut. Ins. Co., 2D 
 La. An., 314. 
 
 7. Insured received intelligence January 
 8th, that ship's papers were taken by Swedish 
 government, December 7th, preceding; notice 
 of abandonment was not given till January 
 17th. The goods were finally seized and un- 
 laden by the Swedish government, April 30th, 
 following. England was not then at war with 
 Sweden. Held, a hostile capture that notice 
 of abandonment was not necessary. Mellish 
 V. Andrews, 15 East, 13. 
 
 8. Policy to mortgagee. The ship was 
 wrecked, and the mortgagor refused to incur 
 any expense about saving her. Insurers sent 
 their agent, who took charge of her, had her 
 pumped out and hauled off, and she remained 
 in his custo.dy at the time of the trial. No 
 abandonment was made, ffeld, the insured 
 was entitled to recover the sum insured. 
 Cramford v. St. Lawrence Ins. Co., 8 U. C. Q. 
 B., 135. 
 
 Vlli. When in time. 
 
 1. Insured received notice of the capture 
 on the 22d, andf wrote on the 25th, offering to 
 abandon to the insurers, which was received 
 in the course of mail and acted upon. 
 Held, the court did not err in reftising to tell 
 the jury that insured had not elected to aban- 
 don in a reasonable time. Mwryland Ins. Co. 
 v. Ruden, 6 Cranch, 838. 
 
 2. Insured received notice of the capture, 
 July 30th. August 5th, an abandonment was 
 offered. Held, the abandonment was in time. 
 Hurtin V. Phoenix Ins. Co., 1 Wash. C. C, 400. 
 
 8 
 
 3. On cargo. Ship was taken by a French 
 privateer and carried into Cape St. Francois, 
 and acquitted, of which insured was advised 
 by letter received at Baltimore between April 
 21st and 28th, in which his correspondent 
 wrote : " I am sorry to say the government 
 will take her cargo, for which they propose 
 bills on France drawn by the colony at forty 
 days' sight." There was no definite informa- 
 tion till June 10th, as to whether the cargo 
 had been taken when the colony's draft for 
 $12,462.03, at forty days' sight on Paris was 
 received. Insured abandoned June 20th. 
 Held, the information contained in the first 
 letter did not make it incumbent upon insured 
 to abandon immediately; that the abandon- 
 ment was in time under all the circumstances 
 of the case. Duncan v. Koch, Wall. C. C, 33. 
 
 4. On ship. She was captured, December 
 26, 1796. Insured was on board at the time. 
 The policy was assigned prior to her sailing. 
 On the 11th of February, 1797, sentence of 
 condemnation was pronounced, from which 
 an appeal was prosecuted, and October 6, 1797, 
 the papers proving the condemnation were re- 
 ceived, and an abandonment made. Held, the 
 abandonment was made within a reasonable 
 time. MJarl v. Shaw, 1 Johns. C, 314. 
 
 5. Ship insured to China; she was captured 
 by a British cruiser for supposed breach /Of 
 blockade,_ carried into Canton and detained; 
 afterwards taken to Calcutta, libelled and con- 
 demned. Insured knew of her detentio^ at 
 Canton, and six months afterwards on notice 
 of condemnation, he immediately abandoned. 
 Held, the abandonment was timely. Dim a. 
 Union Ins. Co., 8 Mass., 494. 
 
 6. Where the insured receives information 
 of a disaster to the ship, but is in a state of 
 uncertainty as to her actual condition, and 
 waits for more definite information arid then 
 abandons, the abandonment is timely. Mey- 
 nolds «. Ocean Ins. Co., 22 Pick., 191. 
 
 7. On cargo ; prime cost $1,400, fitted for a 
 French market, captured, carried into Port au 
 Prince, and compelled to sell cargo, which 
 produced less than $900; with which master 
 purchased 5,000 pounds coffee which arrived, 
 in Wilmington. Insured and insurer with- 
 drew from Philadelphia to avoid contagion 
 of yellow fever. About a month after the ves- 
 sel arrived at Wilmington, insured abandoned, 
 and afterwards the coffee was sold for $1,131. 
 Arbiti-ators appointed by both parties were of 
 
ABANDONMENT. 
 
 18 
 
 When not in time. 
 
 opinion that insured could not claim for a 
 total loss. Held, the delay in making the 
 abandonment was not such as affected the 
 right to abandon, and tlie insured could re- 
 cover for a total loss. M'Calmont v. Murga- 
 troyd, 3 Teates, 27. 
 
 8. The vessel insured was captured Decem- 
 ber 7th, and no abandonment made until Sep- 
 tember 10th, following ; it was then made on 
 the ground of condemnation. Held, although 
 the insured might have abandoned on receiv- 
 ing information of the capture, his failure to 
 do so did not prevent him from making an 
 efiectual abandonment when the loss became 
 absolutely total by condemflation. BoMen v. 
 Ddawwre Inn. Go.., 4 Binn., 430. 
 
 9. A part of the cargo was unshipped and 
 examined December 21st, but no complete in- 
 formation of the extent of the damage was 
 obtained till January 7th, when an abandon-, 
 ment was made. Held, it was made in a rea- 
 sonable time. Oernon v. Royal Ex. Ass. Co., 6 
 Taunt., 383; 8. 0., 1 Holt, N. P., 49; 2 Marsh., 
 88. 
 
 10. Ship waa captured by pirates in the 
 Straits of Magellan, January, 1852, recaptured 
 by an English war steamer and taken to Val- 
 paraiso. Intelligence of these reached insured 
 about the end of April, 1852. Abandonment 
 made April 80, 1852. Seld, the abandonment 
 was timely. The abandonment stated the 
 cause of loss, that she had been condemned as 
 prize which was inaccurate; but it was held, 
 that did not vitiate the abandonment. Dean 
 V. Homhy, 3 El. & Bl., 180 ; 23 L. J. Q. B., 129 ; 
 18 Jur., 625. 
 
 11. At and from Liverpool to the coast of 
 Africa, thence to the West Indies and America. 
 Soon after her arrival on the coast, the crew 
 mutinied and attempted to carry the ship into 
 an enemy's port; but none of them being able 
 to navigate her, they applied to the boatswain 
 for assistance, who pretended that he was 
 ready to assist them and undertook the task ; 
 but he took her to Barbados, where she was 
 boarded and taken possession of by a ship of 
 war. The government agent took charge of 
 her, and, without waiting for orders, disposed 
 of the cargo and stores. The government 
 agent advised the owners of what had oc- 
 curred, and afterwards, on the master's arrival 
 at Barbados, he found her with nothing but 
 her rigging, advised the owners of her condi- 
 tion, recommended a sale, and she was subse- 
 
 quently sold; but before that was done, the 
 owners offered to abandon, which was refused. 
 Held, they were entitled to abandon ; that it 
 waa in time, and the sale was not a waiver of 
 the abandonment. Brown ii. Smith, 1 Dow, 
 349. 
 
 IX. "When not in time. 
 
 1. A neutral vessel, while prosecuting the 
 voyage insured, was captured by a belligerent 
 cruiser, carried into port and libelled as prize 
 of war. July 9th a final sentence was pro- 
 nounced in her favor, and on the 19th, about 
 1 P. M., restitution was made. The insured 
 received information of the capture July 17th, 
 and an offer to abandon was made July 19th. 
 Held, the real state of the facts at the time the 
 abandonment was made, and not the real state 
 of information, determined the rights of the 
 parties : and when a final decree of restitution 
 was rendered, from which no appeal was taken, 
 the peril was over; after which there was no 
 danger of a total loss, and therefore the insur- 
 ers were not liable. Marshall v. Delaware Ins. 
 Co., 4 Cranch, 203; affirming, S. O., 2 Wash., 
 C. C, 54. 
 
 2. She put into Lisbon for repairs; they 
 were made, but exceeded half her value. They 
 were paid by money obtained on bottomry. 
 She proceeded on her voyage and arrived, 
 four days before her arrival, insured offered to 
 abandon. He had no previous knowledge of 
 the disaster. She was sold to satisfy the bot- 
 tomry bond. Held, the existence of a total 
 loss must continue up to the time of abandon- 
 ment; that when the loss ceases to be total, 
 the right to abandon is at an end (citing 
 Rhinelander v. Ins. Co., 4 Cranch, 29 ; Marshall 
 V. Delaware Ins. Co., 4 id., 203 ; Wood v. Lin- 
 coin Ins. Co., 6 Mass., 479 ; Adams v. Delaware 
 Ins. Co., 3 Binn., 287 ; Jumel v. Marine Ins. Co., 
 7 Johns., 412). Humphreys v. Union Ins. Co., 
 3 Mason, 429. 
 
 3. On brig from New York to Trinidad, 
 thence to St. Thomas, valued at $4,000, the 
 sum insured. She left Trinidad in ballast, 
 was captured by a French privateer, and three 
 days after, recaptured by an American frigate, 
 who carried her to St. Kitts, where she ar- 
 rived, December 15th. The agent of the 
 United States ships, and hel' master agreed 
 that one-third of her gross appraised value 
 should be paid as salvage. He borrowed 
 
 9 
 
19 
 
 ABANDONMENT. 
 
 20 
 
 When not in time. 
 
 money on a bottomry bond, paid the salvage, 
 and offered her at auction for the benefit of 
 all concerned. The master bought her in at 
 $4,000. There was no offer to abandon before 
 her surrender by the salvors. Held, the right 
 to abandon did not exist after she arrived at 
 St. Kitts ; that there could be no recovery be- 
 yond the amount of salvage and expenses. 
 Parage v. Dale, 3 Johns. C, 156. 
 
 4. March 7, 1819, ship put into Port Louis, 
 Isle of France, in distress, took out the cargo, 
 repaired at an expense exceeding half her 
 value, and sailed June 28th for a port in Hol- 
 land. She arrived at Antwerp, October 1st. 
 But insured abandoned, July 6th. Held, when 
 the injury was repaired on which the right to 
 abandon was founded, and the vessel was in 
 every respect as capable of performing the 
 voyage as before damage, the right to abandon 
 ceased, and the recovery must be for a partial 
 loss only. Dickey v. New York Ini. Co., 4 
 Cow., 332. 
 
 6. On cargo. She met with very heavy 
 weather, and it was so much damaged it be- 
 came necessary to sell at a port of distress. 
 Held, the voyage was lost; that the insured 
 might have claimed for a total loss, but could 
 recover only an average loss, because he did 
 not abandon until nearly four months after he 
 received notice of the disaster. Fuller v. Ma- 
 Call, 1 Teates, 464; 2 Dall., 219. 
 
 6. Vessel insured from Philadelphia to Ba- 
 tavia, thence to Cowes and a market, " with 
 liberty," etc. She left Cowes, April 16th 
 for Antwerp, and a market; she struck .i 
 sand bank near Campvere and was greatly 
 damaged ; but was got off, caulked at Camp- 
 vere, and by great exertions reached the point 
 of destination, where she was surveyed and 
 found irreparable for want of requisite docks. 
 Being wholly unseaworthy to go anywhere, 
 she was sold, and the master purchased her at 
 a fair sale for less than one-sixth the amount 
 she was valued at in the policy, and below the 
 amount necessary to repair her. He navi- 
 gated her, with great danger, to London, and 
 repaired her for less than fifty per cent, of her 
 valuation. After she was repaired, but before 
 insured knew of it, or of her arrival at Lon- 
 don, he abandoned. Seld, the abandon- 
 ment was not timely, but that insurers were 
 liable for a partial loss, which must include 
 the expense of getting her to London. Bah- 
 ton v. Union Ins. Co., 4 Binn., 386. 
 10 
 
 7. In case of capture, detention or arrest, 
 though the loss is at first total, it may be ren- 
 dered partial by subsequent events. The in- 
 sured must, in a convenient and short time, 
 signify his election to abandon, and if he does 
 not, and the loss does not continue total, but 
 subsequent events make it partial, then the 
 insured shall not, by abandonment, convert 
 the partial into a total loss, but shall recover 
 for the partial loss only. Yet if the property 
 is never restored, he shall recover for a total 
 loss. Drown v. Phemix Ing. Co., 4 Binn., 445. 
 8. On cargo, from Philadelphia to Ant- 
 werp, stipulated : " Not to abandon in less than 
 sixty days after advice of capture or detention, 
 illicit trade prohibited." October 16th she 
 was captured, carried into Plymouth, and re- 
 stored on the 20th, with permission to pursue 
 voyage. Arrived in Flushing Roads and cast 
 anchor October 30th, but being reported from 
 England, a guard was put and kept on board 
 until she departed. Permission to enter Ant- 
 werp was refused; she was ordered to leave 
 the Roads. She sailed for Rotterdam, aud was 
 captured the day after by a British brig and 
 carried into the Downs, and again restored 
 and permitted to proceed to Rotterdam, De- 
 cember 24th, on payment of captors' expenses. 
 Master was in London December 29th to ob- 
 tain advice and assistance, when she was 
 obliged, in consequence of a gale, to cut her 
 cables and run to Margate Roads. January 
 10th she proceeded for Westgate Bay, encoun- 
 tering a gale, suffered damage to hull, was 
 saved from shipwreck by aid from shore, at 
 an expense of £886. She went to Ramsgate 
 for repairs and was damaged by collision — 
 the master remaining in London to obtain ad- 
 vances to pay salvage and repairs. In Febru- 
 ary master heard of the Holland decree for- 
 bidding entry of all vessels that had been in 
 England. He therefore took the ship to 
 London February 33d, deposited the cargo, 
 obtaining advances from the bailees, made re- 
 pairs and satisfied salvage. Insured heard of 
 the first capture December 1, 1807, and on 
 May 20th, abandoned, on the ground that the 
 cargo was discharged in Eugland and voyage 
 broken up. Held, going to anchor at Flush- 
 ing was not a deviation, because the fort at 
 Flushing commanded the passage of the 
 Scheldt, and it was necessary to report there; 
 that insurers could not be permitted to 
 avail themselves of an exemption on the 
 
21 
 
 ABANDONMENT. 
 
 22 
 
 When not in time. 
 
 ground of illicit trade, because that was the 
 consequence of a peril insured against, viz., 
 the capture and carrying into England ; and 
 that the voyage having been stopped by the 
 actual force of the government at Flushing, 
 insured might have abandoned and claimed 
 for a total loss, but that the abandonment when 
 made wiis not timely, hence, he must recover 
 for a partial loss only. Hdd, al»o, that when 
 she was stopped at Flushing, she ought to 
 have proceeded to a "near port" with the in- 
 tention of prosecuting her original voyage 
 as soon as the danger should be over; that 
 her sailing from Flushing to Rotterdam was 
 not within the policy, and that insurers 
 were liable only for such losses as occurred 
 prior to that time. Savage v. PUasaittt, 5 Binn., 
 403. 
 
 9. On cargo. Philadelphia to Qotten- 
 burgh, free from loss for seizure in port or 
 by illicit or prohibited trade. Encountered 
 heavy weather, ship became leaky and reached 
 quarantine at Gottenburgh December 8th. 
 Here the master heard of the decree of Den- 
 mark prohibiting the entry of vessels having 
 colonial produce. The cargo was ginger and 
 coffee. In consequence of the decree, it was 
 not practicable to proceed to Eckenford, and 
 permission was asked to land the cargo at 
 Gottenburgh, which was refused on account 
 of the decree of Sweden. January 5, 1811, she 
 ran for Leith, arrived there on the 10th, and 
 went into dock for repairs; discharged cargo, 
 leaving a part of it at Leith to pay expenses, 
 but finding no place where she could land the 
 balance, sailed for Philadelphia April 4th 
 and arrived there May 18th. Insured com- 
 municated these facts to insurer April 4th, but 
 did not abandon till May 21st Cargo was 
 sold in Philadelphia and insured claimed for 
 a loss, charging the cargo with the freight 
 ffeld, the abandonment was not timely, and 
 that insured was not entitled to recover for a 
 total loss. Krumbhaar «. Marine Iiu. Go^ 1 S. 
 & R. 281. 
 
 10. " On cargo, warranted free from aver- 
 age, unless general, or otherwise specially 
 agreed." Stipulated: " In case of particular 
 average on flour, occasioned by the ship being 
 stranded, to pay so much thereof as shall ex- 
 ceed five per cent" She was bound to St 
 John's, Newfoundland; arrived at Cork in 
 distress November 16th, and that portion of 
 the cargo which had not been thrown over- 
 
 board was landed and warehoused December 
 8th. An abandonment was offered the 18th. 
 Held, the abandonment was not in time. 
 Hunt «. Royal Sxehange Ass. Co., 5 Mau. & 
 Sel., 47. 
 
 1 1 . On wheat warranted free from average. 
 In proceeding from Waterford, ship struck a 
 rock in the river, filled, and was run ashore to 
 prevent sinking. For four weeks she was en- 
 tirely submerged at high water ; and during 
 low water the cargo was removed. All of it 
 was damaged, some to such an extent that it 
 was thrown into the sea, and some was kiln 
 dried. Twenty-one days after the accident, an 
 abandonment was offered, but refused. Held, 
 the abandonment was not timely. But a new 
 trial was awarded for the purpose of giving 
 the assured an opportunity to prove that the 
 abandonment was, in fact, offered sixteen days 
 prior. Anderson v. Boyai Exchange Ass. Co., 
 7 East, 85; 3 Smith, 48. 
 
 1 2. The ship was arrested August 17th, sent 
 to Bristol, where she arrived August SOth, 
 where she was detained till October Sth, but 
 no abandonment was made till October 14tb. 
 Hdd, it was out of time. Barker v. Blokes, 9 
 East, 283. 
 
 13. On cargo from a port in the United 
 States to a port in Ireland. Insured learned 
 February 11, 1808, that the ship, when ready 
 to sail, December 23, 1807, bad been detained 
 by the American embargo; but did not aban- 
 don till June 11th. Held, too late. Kelly c. 
 Walton, 2 Camp., 155. 
 
 14. An American privateer stripped her of 
 her stores and rigging and took away some of 
 her sailors, and set her at liberty, after detain- 
 ing her a few days. She bore away for 
 Charleston and arrived there February 18, 
 1783, at which place she was put into the 
 hands of a part owner, who sold the cargo, 
 but remitted no part of the proceeds. He gave 
 the insurers credit for the amount on his 
 books, and became insolvent During three 
 years no abandonment was made. Held, the 
 insured had waived their right to a total loss. 
 MiteheU c. Edie, 1 Term, 608. 
 
 15. Ship arrived at Kinsale November 24th. 
 Her second survey was made December 14th, 
 when it was found expense of repairs would 
 exceed value of ship. Notice of abandonment 
 to insurers January 6th. Communication be- 
 tween Kinsale and London, where insurers re- 
 sided, could have been made in four or five 
 
 11 
 
23 
 
 ABANDONMENT. 
 
 24 
 
 What waives the right. 
 
 days, ffeld, the notice of abandonment was 
 too late. Aldridge v. SeU, 1 Starkie, 498. 
 
 IB. On ship for twelve months from Au- 
 gust, 1841. May 31, 1842, she was wrecked 
 on a reef off the Mauritius, having been previ- 
 ously disabled in a storm, was floated off and 
 towed to Port St. Louis the same day, where 
 she was afterwards repaired at an expense of 
 £3,000, to defray which the master bottomed 
 her for £5,382, including commissions and 
 other expenses. On her arrival at London, in- 
 sured refused to receive her or to pay the bond. 
 She was accordingly sold by the holders of 
 the bond, and brought £2,800, after which an 
 abandonment was offered and refused. Held, 
 the abandonment was not timely, therefore an 
 action for a total loss could not be maintained. 
 Fleming v. Smith, 8 C. 0. 8., 627 ; 18 Scot. Jur., 
 319. 
 
 17. On ship for twelve months from August 
 18, 1841, valued at £6,000. April 12, 1842, she 
 sailed from Port Adelaide to Bombay, and on 
 May 18th she encountered very tempestuous 
 weather and was driven into the Mauritius, 
 where she arrived May 31st in a greatly dam- 
 aged condition. She was repaired, and money 
 to pay for the repairs was procured on bottom- 
 ry. She took a cargo of sugars and arrived in 
 England March 27, 1843,where, with her freight 
 earned, she was not equal in value to the sum 
 secured by the bottomry bond, £4,536. She 
 was then abandoned to her insurers March 30, 
 1843. In a letter written by the vessel's agents 
 received by insured November 13, 1842, it was 
 stated that she would proceed to Bombay 
 when repaired ; that they had advertised for a 
 loan of $20,000 to be secured by bottomiy; 
 that no offers had been made, but that parties 
 were ready to advance the money required, 
 provided she proceeded from the Mauritius 
 direct to England, and that they had offered 
 her a cargo of sugar at current rates of freight 
 for England. Held, insured had failed to 
 abandon in time, and in so doing, had treated 
 the loss as partial and not total; that when the 
 owners of a ship insured receive intelligence 
 that she is capable of being repaired and is 
 lying in port, they must then abandon, and 
 failing to do so then, they cannot claim for a 
 total loss, and abandon after she is repaired. 
 Fleming v. Smith, 1 H. L. Cas., 513. 
 
 18. On leaving Pernambuco, she struck 
 a rock and was obliged to put back for repairs, 
 yrhich were continued for a long time, and 
 12 
 
 when completed, exceeded the value of ship 
 and freight. The master not being able to 
 procure money to pay for them, pledged ship, 
 cargo and freight in a bottomry bond, obtained 
 the money and discharged the debts. She ar- 
 rived at the port of destination, delivered car- 
 go and earned freight. Ko abandonment was 
 offered until after the repairs were made. 
 Held, the abandonment ought to have been 
 offered before the repairs were made; that the 
 master having elected to repair, his acts were 
 the acts of the owner, and an abandonment 
 offered after repairs made came too late. Ben- 
 son V. Ghapman, 2 H. L. Cas., 696. 
 
 X. "What waives the eight. 
 
 1. Ship was abandoned but afterwards got 
 into port, was repaired and sent on another 
 voyage. Held, a waiver of the abandonment 
 Saidlier v. Church, 1 Caines, 297 n. 
 
 2. After an abandonment made, insured 
 caused the vessel to be sold and bought in by 
 their agent on their own account, and em- 
 ployed her on another voyage. Held, a waiver 
 of the abandonment. Ogden v. New York Int. 
 Co., 10 Johns., 177. 
 
 3. If the property insured is abandoned and 
 sold for the benefit of whom it may concern, 
 and the insured purchase it at the sale, that 
 waives a prior abandonment. Ogden v. New 
 York Firemen Ins. Oo., 12 Johns., 25. 
 
 4. The insured must elect to abandon with- 
 out unnecessary delay; if an unnecessary de- 
 lay is proved, that is a waiver of the right to 
 abandon. Livermore v. Newburyport Marine 
 Ins. Co., 1 Mass., 264. A delay of thirty days is 
 unnecessary, and takes away the right. Hid. 
 
 5. Tlie plaintifl' declared for an absolute 
 total loss ; but there was no proof of abandon- 
 ment. Held, insurers could by their conduct, 
 waive the right to insist upon the abandon- 
 ment; that an absolute refusal to pay the loss, 
 founded upon reasons other than a failure to 
 abandon, will estop insurer from insisting up- 
 on a neglect to abandon ; that a claim for a 
 total loss is equivalent to an abandonment 
 (citing Patapsco Ins. Co. v. Southgate, 5 Pet., 
 604 ; Cassedy v. La. State Ins. Co., 18 Martin, 
 421 ; 2 Parsons on Insurance, 172-176 ; Thwing 
 t>. Washington Ins. Co., 10 Gray, 443 ; Ports- 
 mouth Ins. Co. v. Brazee, 16 Ohio, 81). Sher- 
 lock «. Olole Inn. Co., 1 Cin. Sup. Ct.; 193 ; 8. G., 
 25 Ohio St., 50. 
 
25 
 
 ABANDONMENT. 
 
 26 
 
 What does not waive the right. 
 
 6. In the course of her voyage, she was in- 
 jured by perils of tlie sea, and forced to a port 
 of distress. Two surveys were made under 
 the direction of the admiralty. Cargo landed, 
 and from the injury which both had received, 
 the difficulty of repairing, the impediments 
 resulting from the laws of the place, as well 
 as the opinions of the surveyors, the master 
 treated the voyage as broken up, sold the ship, 
 which was purchased by the supercargo, a 
 part owner, on behalf of the owners, who 
 affirmed the purchase, and sold her for tlieir 
 own benefit, after she returned to the home port. 
 Meld, it was a waiver of the abandonment and 
 claim for total loss ; that iosured could recover 
 for an average loss only. Abbott v. Sebor, 3 
 Johns. C, 39. And on a policy " upon profits 
 of the cargo," it was Jield, that the established 
 rule in respect to ships and cargo should ap- 
 ply in determining whether there was a tech- 
 nical total loss of the profits. Ibid. 
 
 XL "What does not waive the eight. 
 
 1. Ship was taken by a British armed ves- 
 sel, carried into Bermuda February 12th, and 
 libelled as prize of war. Intelligence of the 
 taking reached the insured February 26th, and 
 an abandonment was offered the 28th. Ship 
 and cargo were acquitted April 20, 1805, but 
 an appeal was taken from the decree so far as 
 it affected the cargo. Held, the right to aban- 
 don was complete when she was taken ; and 
 at the time the abandonment was offered, the 
 loss continued total; that the existing facts at 
 the time the abandonment was offered fixed 
 the rights of the parties, hence the release and 
 return of ship and cargo did not deprive in- 
 sured of the right to recover of insurer for a 
 total loss. Bhinelander o. Imuranct Go. of 
 Perm., 4 Cranch, 29. 
 
 2. Insured addressed a letter to insurers in 
 which they stated they desired to take every 
 measure they might judge best for " our mu- 
 tual interest, without prejudice to our rights." 
 Insurers examined the letter and indorsed it, 
 "Read and approved;" and returned it to in- 
 sured. Hdld, insured asked permission of in- 
 surers to keep their right to abandon in abey- 
 ance, and the indorsement granted that per- 
 mission, which was to continue while the 
 property continued in its then situation, unless 
 sooner determined by one of the parties; that 
 insurers had the right to require insured to 
 
 elect to abandon or to waive the right, and 
 until they did so, the original permission con- 
 tinued in force. Livingston v. Maryland Ina. 
 Co., 6 Cranch, 274. 
 
 3. On the outward voyage, she put into 
 Hampton Roads for shelter, and was driven 
 ashore, above high water mark. The survey- 
 ors recommended a sale for the benefit of all 
 concerned, and insured abandoned. She was 
 advertised for sale. An agent of insurers ar- 
 rived at the port of distress and offered to sup- 
 ply money to one of the owners, and to an 
 agent of insured to get the vessel off. He 
 stated that he had come to the place to adopt 
 such measures as might be to the interest of 
 the insurers, and to aid the owners of the ves- 
 sel in getting her off. He forbade the sale 
 which was then advertised in the newspapers 
 of Norfolk ; but one of the owners refused to 
 accept the offer or to allow the sale to be post- 
 poned. Held, it would have been error for the 
 court to have told the jury that they ought to 
 infer a revocation of the abandonment; that 
 whether the insured or their agents intended 
 to act for the benefit of the owners and not for 
 the underwriters, was a question of intention 
 to be decided by the jury upon the circum- 
 stances of the case. Columbian Ins. Co. ■». 
 Asliby, 4 Pet., 139. 
 
 4. Ship was sold for benefit of all con- 
 cerned, and purchased by one of the owners 
 for account of insured who would not affirm 
 the purchase. Held, no waiver of the aban- 
 donment. Abbott V. Broome, 1 Cainfes, 292. 
 
 5. Capture by a friend, or carrying into a 
 port of a neutral by a belligerent for adjudica- 
 tion, as contradistinguished from capture by 
 an enemy, is a ground of abandonment, and is 
 prima facie a total loss ; and the fact that the 
 property has been restored before abandonment 
 does not affect the right to recover unless the 
 insured had knowledge of the restoration. 
 Murray v. United Ins. Co., 2 Johns. C, 268. 
 
 6. Abandonment was made at a time subse- 
 quent to the release of the property abandoned, 
 but neither party knew of the release. After- 
 wards it arrived at the port of destination in 
 safety ; was then tendered to insurers who re- 
 fused it; was put in store, kept sixty days and 
 sold for the benefit of the insurers. Held, not 
 a waiver of the abandonment. Livingston v. 
 Hastie, 3 Johns. C, 298. 
 
 7. The vessel was redelivered to insured by 
 order of the prize court upon his giving bond 
 
 31 
 
27 
 
 ABANDONMENT. 
 
 28 
 
 When condusive. 
 
 to return her or pay her value in case of con- 
 demnation. Held, no determination of the 
 hostile detention. Lovering v. Mercantile Ins. 
 Co. 12 Pick., 348. And an acceptance of her 
 is not a waiver of the abandonment; for if 
 the abandonment was valid the person who 
 accepts her is the agent of the insurer. 
 Ibid. 
 
 8. On ship from Philadelphia to Kingston 
 and a port in the island of Cuba. She was 
 seized in Jamaica and abandoned, but the in- 
 surer refused to accept. She wont from Ja- 
 maica to St. Jago de Cuba, and thence to 
 Trinidad (Cuba), where she took cargo on 
 account of insured, and tlien returned to 
 Philadelphia. Insured offered her to insurers, 
 who again refused, and she was sold at pub- 
 lic auction for their benefit, upon notice to 
 them — they had consented, that insurance 
 should be made upon her home voyage. 
 Held, no waiver of the abandonment, that 
 after abandonment, if that be legal, the in- 
 sured is agent for the insurer in respect to the 
 property abandoned. Curcier v. Philadelphia 
 Ins. Co., 5 S. & R., 113. 
 
 9. Ship was cast upon the rocks at Hell 
 Gate, and greatly damaged. Owner aban- 
 doned, and insurers authorized him to bring 
 lier into the Connecticut river if practicable, 
 and to do whatever should be needful without 
 militating against the abandoment. Held, the 
 agreement did not waive his rights under tlie 
 abandonment. Xing v. Hartford Fire Ins. Co., 
 1 Conn., 333. 
 
 10. She was mortgaged by insured, and 
 he offered to abandon to insurers, who 
 knew she was mortgaged. They made no 
 objection to the abandonment on that ground. 
 The mortgagee assented to the abandonment. 
 Held, insurers could not object that the aban- 
 donment was invalid, on the ground that the 
 mortgagor had no authority to make it; for it 
 was immaterial whether it was in writing or 
 a mere oral offer, and though the mortgagee 
 proceeded against the boat under the mortgage 
 and foreclosed it, that was not a revocation 
 of the abandonment, so far as the mortgagor 
 was concerned. Fulton Ins. Co. v. Ooodman, 
 32 Ala., 108. 
 
 11. On freight. She was not worth repair- 
 ing at the port of lading, and owners aban- 
 doned to insurers of ship and insurers of 
 freight. Held, as the owner was not under 
 any obligation to repair in order to earn 
 
 14 
 
 freight, but was justified in abandoning her 
 to insurers of ship, the loss of freight arose 
 from a sea peril, and not from the insured's 
 act of abandonment; for to hold otherwise 
 would be to render inoperative all policies un 
 freight, unless the insured elected to repair 
 the ship. Potter v. Rankin, 6 L. R. !Eng. & 
 Ir., App., 83; affirming 8. C, 42 L. J. C. P., 
 169; 5 L. R. C. P., 341; 22 L. T. (N. S.), 347; 
 18 W. R., 607; 39 L. J. C. P., 147; reversing 
 S. C, 3 L. R. C. P., 562; -37 L. J. C. P., 257; 18 
 L. T. (N. S.), 712; 16 W. R., 1049. 
 
 XII. When conclusive. 
 
 1. Insurers had accepted the abandonment. 
 Held, the court had no right to charge that 
 insured had not the right to abandon. Ins. 
 Co. V. Piaggo, 16 Wall., 378. 
 
 2. Insm-ers took possession of the vessel, 
 repaired and offered to return her to insured 
 on his paying a portion of the expense of 
 repairs. Held, it was an acceptance of the 
 abandonment, notwithstanding insurer's de- 
 claration to the contrary. Gloiuxster Ins. Co. 
 «. Younger, 2 Curtis, 322. 
 
 3. On cargo. Ship was captured. Insured 
 received information of it, December 30lh. 
 Released, Januaiy 15th. Abandonment made 
 January 21st. Neither party knew of the re- 
 lease when the abandonment was made. Held, 
 the abandonment was effectual, notwithsand- 
 ing the property afterwards arrived in safety 
 at the port of destination. I/ivingaton v. 
 Hastie, 3 Johns. C, 293. 
 
 4. Ship was driven into a port of distress 
 where partial repairs were made, and being 
 unable to procure the necessary funds to com- 
 plete them, coupled with the fact that the 
 cargo was in such a damaged condition, that 
 the further prosecution of the voyage was not 
 worth the attempt, the master sold her before 
 abandonment was made. Held, the doctrine 
 that where a total loss is claimed on the ground 
 that the ship was innavigable, the insurers 
 may defeat an abandonment by electing to 
 make necessary repairs, has been rejected by 
 the courts of New York in the case of Center 
 V. American Ins. Co., 7 Cow., 564; 4 Wend., 
 45; also, by Story J., in Peele v. Merchants' 
 Ins. Co., 3 Mason, 29, because the right to 
 abandon is not a shifting right, dependent 
 upon the will of both parties. Hence, where 
 it has once rightfliUy attached, insured can- 
 
29 
 
 ABANDONMENT, 
 
 30 
 
 What it carries. 
 
 not be prevented from exercising it, nor can 
 that right he defeated by any act or offer on 
 the part of insurers. Buehman v. Merchants^ 
 Louisville Ins. Co., 5 Duer, 343. 
 
 6. The insurer ■who refuses to accept aban- 
 donment, but taljes possession for the purpose 
 of removing, repairing and restoring ship to 
 owner, must use diligence and dispatch. A 
 want of it -will operate as an acceptance of the 
 abandonment, although the repairs are after- 
 wards made with reasonable dispatch. iJey- 
 nolds V. Ocean Ins. Co., 1 Met., 160. And, a 
 clause in the policy, which provides : " That the 
 acts of the insurer in recovering, saving and 
 preserving property insured, in case of dis- 
 aster, shall nut be considered as an acceptance 
 of an abandonment," does not affect insurer's 
 liability in such a case. Ibid. 
 
 6. If insured persist in his abandonment, 
 and insurer expressly or impliedly accept it, 
 insured may recover for a total loss ; and tak- 
 ing possession without qualification or reser- 
 vation, necessarily implies and constitutes an 
 acceptance of a previous offer to abandon. 
 Cincinnati Ins. Co. v. Bakeaell, 4 B. Mon, 
 541. 
 
 7. The insured reftised to repair the ship, 
 and offered to abandon. Held, insurer may 
 repair her within a reasonable time and restore 
 her to insured, if the repairs cost less than 
 One-half her value; but if the restoration was 
 not made within a reasonable time, insurer 
 forfeited his right to return her to the owner, 
 and he must be treated as having accepted the 
 abandonment Feele v. Suffolk Ins. Co., 7 
 Pick., 254. 
 
 8. On cargo of wine, valued at £25 per 
 pipe, to Bristol, Liverpool and Dublin, all or 
 either, including the risk of craft. She was 
 wrecked near Bristol, and three-fourths of the 
 cargo so much damaged as to make it impru- 
 dent to delay a sale of it till sent to the ports 
 of Dublin or Liverpool. The day after the 
 accident, insurers met and ordered insured to 
 do the best for all parties; arid', on that day a 
 notice of abandonment was delivered. More 
 than two months afterwards, some of the in- 
 surers interfered, and forbade a sale of the 
 damaged wine. Held, not having repudiated 
 the abandonment, Insurers must be presumed 
 to have acquiesced. Hudson v. Harrison, 3 
 B. &B., 97; 3 Moore, 288. 
 
 9. On ship, at and from Halifax to Ply- 
 mouth. Captured on the voyage September 
 
 16, 1805. October 18, 1805, the owners re- 
 ceived intelligence of the capture, and offered 
 to abandon on the following day. The mas- 
 ter's protest was sent to insurers October 19tli. 
 It was referred to two of their number Octo- 
 ber 21st, who returned it to the insurance bro- 
 kers October 24th, saying they were satisfied. 
 On the same day the owner received intelli- 
 gence of her recapture; some of the under- 
 writers settled for a total loss, and took charge 
 of the vessel without prejudice. She reached 
 the port of destination and earned freight. 
 Held, the insurers had acquiesced in the aban- 
 donment and claim for total loss, hence they 
 could not be permitted to say it was not total. 
 Smith V. Bobertson, 2 Dow, 474. 
 
 XIII. What it caeeies. 
 
 1. Ship owner insured his vessel and freight 
 with different insurers. She was captured. 
 He abandoned to the insurer of vessel, and 
 then to insurers of freight; after which, in- 
 surers of ship paid fifty per cent, of the claim, 
 and for the balance assigned their rights in 
 the res to insured. Held, insured on freight 
 was entitled to recover the freight to which 
 the insurers on ship would have been entitled. 
 Davy V. Hallett, 3 Caines, 16. 
 
 2. An abandonment of the ship does not 
 affect the remedy of the insured on freight for 
 loss of it. Center v. American Ins. Co., 7 
 Cow., 564; affirmed, 4 Wend., 46. 
 
 3. By the act of abandonment the spes reeu- 
 perandi is completely gone from the insured, 
 and passes to the insurer. Bogers v. Hosaek, 
 18 Wend., 319. And this is so, notwithstand- 
 ing that the insurer has not paid the loss. 
 Ibid. 
 
 4. An abandonment rightfully made, though 
 not accepteJ, vests the spes recuperandi in the 
 insurers; but the insured have an equitable 
 lien as against other debts of the same rank 
 for the payment of the claim. Hosaek v. Bog- 
 ers, 6 Paige Ch., 415. 
 
 5. If the total amount insured by all the 
 policies does not equal the value of the thing 
 insured, the owner is his own insurer for the 
 difference, and is entitled to a pro rata share 
 in the proceeds of the salvage. Phillips v. 
 St. Louis Perpetual Ins. Co., 11 La. An., 459. 
 
 6. The goods were shipped by G. & Co., 
 and by them insured. A disaster occurred in 
 the course of the voyage, and the master 
 
 15 
 
31 
 
 ABANDONMENT. 
 
 32 
 
 What is an acceptance of. 
 
 abandoned vessel and cargo to insurers, whose 
 agent took possession of, and sold the cargo 
 at private sale; afterwards confirmed by in- 
 sured. Seld, the abandonment passed a valid 
 title to insurers, and therefore the purchase 
 from insurers' agent must be upheld. 6ra- 
 Tiam V. Ledda, 17 La. An., 45. 
 
 7. On steamboat valued at $20,000, insured 
 for $15,000. She was sunk in the Mississippi 
 and abandoned to the insurers, who raised 
 her, and realized $3,000, after paying all 
 charges and expenses. Insured brought this 
 action to recover one fourth of that sum, their 
 uninsured proportion of the net salvage. The 
 policy stipulated : " In case of abandonment, 
 the insured shall assign and set over to this 
 company all their interest in and to said 
 steamboat and every part thereof, free of all 
 claims and charges whatsoever." Held, they 
 were entitled to recover, for the abandonment 
 did not carry that portion of the interest of 
 which the owners were their own insurers. 
 Cincinnati Ins. Co. ■». Buffield, 6 Ohio St., 200. 
 
 8. Ship owner insured ship and freight, and 
 loaded her on his own account. She was strand- 
 ed twenty miles from destination. He aban- 
 doned her to insurers of ship. At his own ex- 
 pense conveyed part of the cargo by lighters 
 to port of destination, and at his own expense 
 got the ship off with the balance of the cargo, 
 and took her to destination. Held, the aban- 
 donees of ship were entitled to an allowance 
 for the carriage of that part of the cargo from 
 the place of stranding to its destination, to be 
 estimated at the current rate of freight. Mil- 
 ler V. Woodfall, 8 El. & Bl., 493; 8. C, 4 Jur. 
 (N. S.), 302; 27 L. J. Q. B., 120. 
 
 XIV. "What is as acceptance of. 
 
 1. On steamboat, stipulated : "In case of loss, 
 the party insured shall use every practical effort 
 for the safeguard and recovery of said steam- 
 boat, if recovered, cause the same to be forth- 
 with repaired, and in case of neglect or refusal 
 on the part of insured to adopt prompt and effi- 
 cient measures for the safeguard and recovery 
 thereof, insurers are hereby authorized to in- 
 terpose and recover the said steamboat, and to 
 cause the same to be repaired for account of 
 insured, to the charges of which the said in- 
 surance company will contribute in propor- 
 tion as the sum herein insured bears to the 
 agreed value." She struck a snag in the Mis- 
 10 
 
 souri river and sank. Insured gave notice of 
 an abandonment which was refused ; but in- 
 surers took possession for the purpose of rais- 
 ing and repairing her and returning her to in- 
 sured. They raised, repaired, and tendered 
 her at the home port May 9, 1866. The acci- 
 dent occurred November 3, 1865. Had she 
 been tendered earlier in the season, so as to 
 have been put into the spring trade, she would 
 have been worth $5,000 more than when ten- 
 dered. It would have cost $5,000 more than 
 was expended upon her to make good the 
 deficiencies. As, tendered she was worth 
 $12,000; when injured, she was worth $25,000. 
 Held, the right to take possession of the 
 vessel was accorded that insurers might 
 make indemnity for the loss; they had no 
 right to take possession for the purpose of 
 making partial repairs, that did not amount 
 to indemnity ; they were bound to make com- 
 plete repairs, without unnecessary delay; and 
 in holding possession longer than was neces- 
 sary, they held as owners and not as insurers ; 
 that a failure to return her within a reason- 
 able time was an acceptance of the abandon- 
 ment (citing Peele «. Suffolk Ins. Co., 7 
 Pick., 254; Reynolds «. Ocean Ins. Co., 22 
 id., 191; Norton v. Lexington Marine, Life 
 and Fire Ins. Co., 16 111., 235). Therefore the 
 insurers were liable for a total loss notwith- 
 standing insured had no right to abandon 
 when he offered to do so (affirming S. C, 
 Wool, C. C, 278). Copelin v. Int. Co., 9 Wall., 
 461; 5. (7., 46 Mo., 211. 
 
 2. An abandonment was made by the mas- 
 ter, and the owners demanded payment for a 
 total loss. Insurers authorized efforts to be 
 made to get her off at their expense, ordered 
 her to be stripped and the rigging stored, and 
 contracted with others to get her off. She was 
 brought to Gloucester, repaired, and tendered 
 to the owners. Held, insurers' acts made the 
 abandonment valid. Oloucester Ins. Co. v. 
 Younger, 2 Curtis, 322. 
 
 3. Stipulated : " In case of loss or misfor- 
 tune, it shall be the duty of insured to use 
 every practicable effort for the safeguard 
 and recovery of the schooner; and if recov- 
 ered, to cause the same to be forthwith re- 
 paired; and in case of neglect or refusal on 
 the part of insured, to adopt prompt and 
 efficient measures for that purpose, then in- 
 surers are authorized to interpose and recover 
 the said schooner and cause the same to be re- 
 
33 
 
 ABANDONMENT. 
 
 34: 
 
 What is not an acceptance of — Generally. 
 
 paired for account of insured to the charges 
 of which the insurance Company will contri- 
 bute," etc. She was wrecked with a cargo of 
 stone coal and pig iron, November 27, 1850, 
 near False Presque Isle, an uninhabited coast 
 one hundred and fifty miles or more to the 
 nearest settlement, with no means at hand for 
 getting her ofiF. Insured abandoned February 
 86, 1851, stating as the cause that she had four 
 or five feet of water in her hold, that all efforts 
 tu pump her out had proved unsuccessful, that 
 she was hard upon the rocks and boulders in 
 an exposed condition, and would doubtless go 
 to pieces as soon as the ice should disappear 
 in the spring. Insurers refused the abandon- 
 ment, and employed wreckers in the spring 
 who discTiarged her cargo in two days, towed 
 her into harbor, where she sunk in about eight 
 feet of water. She was again raised, taken 
 away and repairs completed August 7th fol- 
 lowing, at an expense of |2,800. What her 
 value was after repairs were made did not ap- 
 pear. She was then tendered to insured who 
 refused her. Seld, considering all the circum- 
 stances of the case, the abandonment was in 
 time. And though it was not timely, if in- 
 surers took her to repair under the authority 
 conferred in the policy and failed to return 
 her in a reasonable time, they must be held to 
 have retained her under the abandonment, and 
 the retention would be an acceptance of the 
 abandonment. Hence insured was entitled to 
 recover as for a total loss. Norton v. Lecing- 
 ington Ins. Co., 16 111., 235. 
 
 XV. "What is not ah acceptance of. 
 
 1. The agent of insurer superintended the 
 unloading of the ship in order to repair 
 her. Held, not to be construed into an ac- 
 ceptance of an abandonment. O-riswold «. 
 New York Ins. Co., 1 Johns., 205; S. C, 3 
 id., 321. 
 
 2. On ship, stipulated: "Insurer shall not 
 be liable for partial loss unless it amounts to 
 fifty per cent. ; nor shall insured abandon for 
 damage merely, unless the damage, under an 
 adjustment as of a partial loss shall exceed 
 half the amount insured." She was stranded, 
 an abandonment oflfered and refused. Insurer, 
 ■against the will of insured, got her off, repaired 
 and delivered her to insured, within a reas- 
 onable time. Held, insurer was justified and he 
 
 2 
 
 was entitled to recover of insured the expenses 
 for saving and repairing the ship. Common' 
 wealth Ins. Co. v. Cluise, 20 Pick., 142. 
 
 XVI. Gexeeallt. 
 
 1. On Goods, fcom Philadelphia for LaGui- 
 ra, she was captured by a British privateer 
 and carried into Ourracoa. April 29th the 
 master made protest. The ship and goods 
 being still in possession of the captors and by 
 them detained, an abandonment was offered 
 June 13th. Held, the capture gave the right 
 to abandon, but the judgment was reversed 
 because the special verdict did not find whether 
 it was offered in due time. Chesapeake Ins. 
 Co. «. Stark, 6 Cranch, 268. 
 
 2. The claim was for a technical total loss. 
 Held, the loss must continue total up to the 
 time of abandonment ; but it was not necessa- 
 ry that it should be known as existing at that 
 time; but it must actually exist, of which 
 affirmative or negative proof may be given at 
 the trial. Olivera v. Union Ins. Co., 3 Wheat., 
 183; Smith v. Newhuryport Mut. Ins. Co., 4 
 Mass., 668, 
 
 3. The right to abandon may be waived. 
 Abbott V.Broome,! Gaines, 392. 
 
 4. A clause in the policy which restrains- 
 the insured from abandoning for detention 
 only, till after notice^Bud' proof of such deten- 
 tion for ninety days, postpones the right to 
 abandon for the term named ; and the insured 
 cannot abandon until he has received intel- 
 ligence and proof that the detention has con- 
 tinued for the term of ninety days. Lovering 
 V. Mercantile Ins. Co., 12 Pick., 348. And a 
 premature offer to abandon may in conse- 
 quence of the acts of the parties, operate as a 
 continuing notice of abandonment, which will 
 become effectiial so soon as the assured has 
 the right to abandon. Ibid. 
 
 5. Vessel and cai'go were insured by other 
 companies, and the freight list by these de- 
 fendants. She was wrecked, and vessel, cargo 
 and freight were abandoned. Insurers of 
 freight list accepted the abandonment Seld, 
 they could not be heard to say the loss was 
 not total, nor that it was not a case for aban- 
 donment, but were bound to pay the whole 
 sum insured. Bvffalo City Bank v. North- 
 western Ins. Co., 30 N. Y., 251. 
 
 6. An abandonment rightfliUy made reverts 
 
 17 
 
35 
 
 ABATEMENT. 
 
 36 
 
 Matter in — Pleadrng in — Waiver of. 
 
 back to the time of the loss. Clamageran v. 
 Banks, 18 Martin (La.), 551. 
 
 7. The party who abandons must have the 
 property in the ship (citing Knight b. Faith, 
 15 Q. B., 649). Jardine v. Leathey, 3 B. & S., 
 700; a. C, 3 F. & F., 80; 9 Jur. (N. 8.), 1035; 
 11 W. R., 432; 7 L. T. (N. 8.), 783. 
 
 8. The rule in the United States in respect 
 to the right to recover for a total loss founded 
 upon an abandonment differs with the rule in 
 England. In the United 8tates the right to 
 recover for a total loss is complete if the cause, 
 the basis of the abandonment, is sufficient and 
 continues at the time the abandonment is 
 offered. Maryland Ins. Co. v. Bathurst, 5 G. 
 & J., 159. 
 
 9. Notice of the vessel's condition was not 
 given prior to the lime an abandonment was 
 oflered. Held, no defense to the action. Go- 
 hen V. Charleston Ins. Co., Dud. Ap. (8. C), 
 147 ; Sedley v. Nashmlle Ins. Co., 6 Rich., 130. 
 
 1 0. Ship was forced into Savannah and was 
 there found incapable of prosecuting her in- 
 tended voyage ; and no conveyance being found 
 for cargo, it was sold. Held, the insured could 
 not recover for a total loss unless an abandon- 
 ment was offered within a reasonable time, of 
 which the jury were the judges. Mellon v. 
 Louisiana State Ins. Co., 17 Martin (La.), 563 ; 
 8. C. 18 id., 424. 
 
 ABATEMENT. 
 
 L Mattek is abatement cannot be 
 
 HEARD TJNDEB A PLEA IN BAR. 
 
 IL Pleading in bab waives matter of 
 
 abatement. 
 in. Waiver of. 
 
 I. Matter in abatement cannot be 
 
 HEAED UNDER A PLEA IN BAR. 
 
 1. Stipulated: "The insured shall, if re- 
 quired, submit to an examination under oath, 
 and exhibit his books of accounts, etc., and 
 until such proofs, declarations and certificates 
 are produced and examination and apprizal 
 permitted, the loss shall not be payable." Held 
 if the insured refused to be examined, that was 
 matter that ought to have been pleaded in 
 abatement, because it would have established, 
 18 
 
 if true, no present cause of action. Weide v. 
 Germania Ins. Co., 1 Dil. C. C, 441. 
 
 2. The nominal plaintiff was not an alien 
 enemy ; but the person for whose benefit the 
 insurance was made was a citizen of Ham- 
 burgh, which became hostile after the making 
 of the policy. Insured pleaded the general 
 issue only. Held, the defendant could not un- 
 der a plea in bar show a defense which was 
 merely personal and which might be removed 
 in the future. JFU-ndt v. Waters, 15 East, 260. 
 
 IL Pleading in bak waives matter 
 OP abatement. 
 
 1. The defendant pleaded to the jurisdiction 
 stating that it appeared for that purpose only; 
 but in the same answer denied the material 
 allegations contained in the plaintiff^s peti- 
 tion. Held, setting up a defense in bar waived 
 the matter of abatement. Mippstein v. St. 
 Louis Mutual Life Ins. Co., 57 Mo., 86. 
 
 III. Waiver of. 
 
 1. The defendant was sued in the state of 
 Ohio by the name of The President, Directors 
 and Company of the La Fayette Insurance 
 Company. A certified copy of the judgment 
 was taken to Indiana where an action was 
 commenced against the defendant by the 
 name of The La Fayette Insurance Company. 
 The declaration described the judgment cor- 
 rectly and then averred that it was recovered 
 against the defendant by the name of the 
 president, directors, etc. Held, the judgment 
 bound the defendant, though it was called by 
 a wrong name. The mistake should have 
 been pleaded in abatement. La Fayette Ins. Co. 
 V. French, 18 How., 404. 
 
 2. " Loss payable within sixty days after 
 notice and proof." The general insurance act, 
 under which insurers were incorporated, pro- 
 vided, suits at law may be prosecuted foi 
 losses, if payment is withheld more than two 
 months after due. The proofs were made 
 July 24th, and this action commenced No- 
 vember 10th. Held, the loss became due 
 when the proofs were delivered and payable 
 two months thereafter, hence the action was 
 not premature. AlUn v. Hudson River Ins 
 Co., 10 Barb., 442. 
 
37 
 
 ABSOLUTE OWNER. 
 
 38 
 
 Who is. 
 
 3. Policy to C, upon his life, payable to 
 him, his executors, administrators ancl as- 
 signs, for the benefit of the plaintifiF, who did 
 not sue as administratrix, but for her own use. 
 Upon the third trial it appeared that she was 
 the wife of the brother of the deceased. Held, 
 she had the equitable interest in the policy, 
 though not the title to support an action at 
 law; tliat defendant by repeatedly contesting 
 her claim upon the merits had waived the 
 right to suggest at the third trial a defect ap- 
 parent upon the writ and declaration. Gamp- 
 bell «. New England Life Im. Co., 98 Mass., 381. 
 
 4. The action was in the name of the as- 
 signee. The case had been tried once with- 
 out objection to his bringing the suit. Seld, 
 defendant could not object on that ground on 
 the second trial, for it was in the nature of a 
 plea in abatement, and must be treated as 
 waived. Lycoming County Ins. Co. v. Seh/rtf- 
 fler, U Penn. St, 269. 
 
 ABSOLUTE OWNER. 
 
 (See iNomLBKANOB ; Insurablk Intbrbbt; Titm.) 
 
 I. Who is. 
 
 II. NOT. 
 
 I. "Who is. 
 
 1. Stipulated : " If insured is not the sole 
 and unconditional owner of the property, or 
 if said property be a building or buildings, 
 tlie land on which said building or buildings 
 stand, by a sole and unconditional ownership 
 and title, and it is not so expressed in the writ- 
 ten portion of the policy, thfen it shall be 
 void." The policy was written : " $1,400 on 
 their frame cotton gin bouse, $600 on press 
 and gin, and $3,000 on cotton seed and cotton 
 lint, all in the gin house. The insurance on 
 the gin house is intended to cover plaintiffs' 
 interest on account of repairs." Insured were 
 partners in the business of cotton growing, 
 operating a plantation not their property, but 
 for which they were to furnish supplies and 
 stock to the amount of $10,000. The imple- 
 ments and stock on the plantation were to re- 
 main, and be used, and whatever else might 
 be required, insured were to furnish ; but the 
 owner was to make all permanent improve- 
 ments. The proceeds of the crop were to be 
 
 applied, first, to reimburse plaintiffs all ad- 
 vances. The net proceeds equally between 
 insured and owner; and stock and imple- 
 ments equally at the end of one year. Jlfld, 
 plaintiffs were either partners or tenants in 
 common with tlie owner, in respect to the 
 cotton; that it appearing plaintiffs were enti- 
 tled to all of the proceeds of the cotton, be- 
 cause they had expended more than its value, 
 they were the sole and unconditional owners 
 as to it; that tliey were not sole owners as to 
 any other part of the property, and therefore 
 not entitled to recover as to it. Noyes v. Mart- 
 ford Fire Ins. Co., 54 N. Y., 668. 
 
 2. P., the owner of the mill, agreed to sell 
 it, and make a conveyance upon payment and 
 performance of certain conditions. The con- 
 tractee took possession, bought machinery and 
 put it in the mill, and executed certain chat- 
 tel mortgages upon it Insured purchased at 
 a receiver's sale, and took possession. Seld, 
 he could insure the property ; that the insurer 
 did not stand in the position of creditor, and 
 could not question his title; that though the 
 insured bought tlie property for another per- 
 son, that was no defense to the action, because 
 he held the legal title against the whole world 
 except the beneficiaries. BickneU o. Lancaster 
 Ins. Co., 58 N. T., 677; 8. C, 1 N. Y. (S. C), 
 215. 
 
 3. Plaintiff held a contract for a deed from 
 B., and had made several payments thereon. 
 He contracted to sell to C, who obtained the 
 deed from B. without -plaintiff's consent or 
 knowledge. He procured this policy, exhib- 
 iting to the defendants his contract with C. 
 Held, his right in the property was not condi- 
 tional, but absolute, to the extent of his own- 
 ership or equitable title (citing Chase v. Ham- 
 ilton Mutual Ins. Co., 23 Barb., 527; Tyler ». 
 ^tna Ins. Co., 12 Wend., 507; S. C, 16 id., 
 385). Acer v. MercJtants' Int. Co., 57 Barb., 68. 
 
 4. Stipulated: "If the interest be a lease- 
 hold interest or other interest not absolute, it 
 must.be so represented to the company and 
 expressed in the policy in writing, otlierwise 
 the policy shall be void." Insured had mort- 
 gaged the property, of which insurers had no 
 notice. Held, the mortgagee's claim did not 
 vest in him the estate in the lands mortgaged ; 
 but was in the nature of a debt, and the mort- 
 gagor's estate was not a leasehold, but an ab- 
 solute interest, and therefore it was not neces- 
 sary to communicate to insurers the fact that 
 
 19 
 
39 
 
 ACCIDENT. 
 
 "40 
 
 What IB. 
 
 tlie subject was mortgaged. Washington Fire 
 Ins. Oo. v: Kelly, 38 Md., 421. 
 
 5. The declaration averred that insured was 
 the owner. Held, an averment of an estate in 
 fee, and a deed of conveyance to insured sup- 
 ported it; that insured was not bound to show 
 title in his grantor. Winneshiek Ins. Oo. «. 
 Schueller, 60 111., 465. For actual possession 
 accompanied with claim to the fee raises the 
 presumption of an estate in fee (citing Mason 
 •D. Park, 4 111., 533; Brooks e. Bruin, 18 111., 
 539). Ibid. 
 
 6. Policy to Morris upon goods in store. 
 They were sold to Myers and the policy as- 
 signed, to which insurers assented. Morris, 
 one of the firm of G. & M., had taken them 
 for a debt due the firm. They were not mixed 
 with the stock of the firm, but were carried to 
 a separate store insured in Morris' name, and 
 subsequently sold to Myers. Held, when they 
 were sold and the policy assigned, Myers took 
 a complete and absolute title to the goods; 
 and as to Morris' interest in them prior to the 
 sale to Myers, it was unnecessary to inquire, 
 for insurers' contract was in substance, though 
 not in form, a new agreement with Myers (cit- 
 ing Tillou V. Kingston Mutual Ins. Co., 7 
 Barb., 573; S. C, 5 N. Y., 405; Traders' Ins. 
 Co. 1). Kobert, 9 Wend., 404: Charleston Ins. 
 Co. ». Neve, 2 McMullen, 237). City Fire Ins. 
 Oo. V. Mark, 45 111., 483, 
 
 7. Stipulated : " If the premises are held by 
 lease or upon leased grounds, or the interest 
 of the insured is not an absolute ownership, 
 it must be stated in writing with the ti-ue title 
 of the insured." Insured was a married wo- 
 man; but evidence was given to show that 
 the agents of insurer were informed of that 
 fact when they issued the policy. Seld, she 
 had an estate absolute. Seld, also, if that were 
 not so, the neglect of the agent to set forth the 
 nature of her estate would estop insurer to ob- 
 ject to the claim on that ground. Oommercial 
 Ins. Oo. V. Spankneble, 52 III., 53. And the 
 fact that G. held a deed of trust which con- 
 veyed the legal estate to him was no violation 
 of the condition, because the contract itself 
 stipulated that the loss, if any, should be paid 
 to G., trustee, as his interest may appear. Ibid. 
 
 8. The premises were sold under a decree 
 of foreclosure August 2, 1862. The purchas- 
 ers assigned the certificate of sale to the 
 plaintifiEs; the debtor had the right to redeem 
 within fltteen months ; the purchasers of the 
 
 20 
 
 certificate procured this policy September 5, 
 1863. The fire occurred October 9th follow- 
 ing, and no redemption was ever made or 
 offered. A deed was executed to the pur- 
 chaser December 3, 1863. Held, the deed 
 operated by relation, and the title passed abso- 
 lutely from the day of sale. Oaylord n. Lamar 
 Fire Ins. Oo., 40 Mo., 13. 
 
 9. The policy was on storehouse $200, and 
 on goods $800. Insured represented it as un- 
 incumbered, and that the title was good. 
 Meld, no misrepresentation, though insured 
 had not paid all of the purchase money ; if he 
 was in possession by virtue of his purchase, 
 he was the absolute owner. Bonham «. Iowa 
 Central Ins. Co., 25 Iowa, 328. 
 
 J 0. Stipulated to be void unless insured is 
 the sole and unconditional owner. He had 
 made a chattel mortgage upon the property 
 insured. Held, no breach of the stipulation. 
 Hubia/rd v. Sartford Fire Ins. Co., 33 Iowa, 
 325 
 
 II. Who is not. 
 
 1 . Stipulated : " If the property to be insured 
 be held in trust or on commission, or be a 
 leasehold Interest or an equity of redemption, 
 or if the interest of the insured be any other 
 than the entire, unconditional and sole owner, 
 ship of the property, for the use and benefit 
 of the insured, it must be so represented to the 
 company, and so expressed in the written part 
 of this policy, otherwise the policy shall be 
 void." At the time the insurance was effected, 
 the property had been sold on a judgment and 
 execution, but the time for redemption had 
 not expired. Seld, the nondisclosure of the 
 sale avoided the policy. Reaper City Ins. Oo. 
 V. Srennan, 58" 111., 158. 
 
 ACCIDENT. 
 
 I. What is. 
 
 II. NOT. 
 
 III. CONSTBUCTION. 
 
 IV. Geneballt. 
 
 I. "What is. 
 
 1. Stipulated: "The company shall not be 
 liable for loss except when actually received 
 
41 
 
 ACCIDENT. 
 
 42 
 
 What is. 
 
 by the insured -while actually traveling in a 
 puhlic conveyance provided hy common car- 
 riers for the transporting of passengers in the 
 United States or in the Dominion of Canadii, 
 and in compliance with all rules and regula- 
 tions of such carriers, and not neglecting to 
 use due dilligence for self protection;" In- 
 sured took the train at Chicago, and arrived 
 at Kankakee about seven o'clock. The prac- 
 tice was for the train to stop at the station, 
 and pass on to the coal bin, provided it was 
 intended to proceed beyond Kankakee. In- 
 sured got out of tlie car, and the train remained 
 at the station several minutes. After it had 
 taken water, the conductor signaled with his 
 light, and insured started to overtake it. He 
 grasped the rail, and fell between two passen- 
 ger cars, and was instantly killed. Held, the 
 insurer was liable for injuries received by the 
 insured while necessarily getting on or off the 
 train aa a traveler upon it; that whether he 
 was a traveler would depend on whether his 
 journey terminated at Kankakee; the fact that 
 he had bought a ticket for Kankakee only, and 
 that the conductor had taken it up, and he had 
 not purchased a ticket at Kankakee for a point 
 beyond, was not conclusive ; and if he were a 
 passenger proceeding beyond Kankakee, he 
 was not bound to remain inside the car all 
 the time, but might leave it and return to it; 
 he was bound to observe only such rules as 
 a general traveler might be presumed, and 
 ought to know; any other rule of law would 
 be a snare upon travelers ; but it was his duty 
 to use such care as a prudent man would ob- 
 serve under the same circumstances; and it' 
 would be natural for a prudent man intending' 
 to go further on the train, to make an effort to ' 
 'regain his place on it while the train was in 
 motion. Tooley v. Baihoay Passengers Ass. Co., 
 3 Biss., 399. 
 
 2. Against personal injuries or death by 
 accident. Deceased left the house on Sunday ; 
 was lasl seen alive on that day walking toward 
 a railroad bridge across a stream emptying into 
 the sound. This bridge was used by pedes- 
 trians to cross the stream, and the body was 
 found in the pond not far from the bridge. 
 There was a wound upon the head of deceased, 
 and a break in his hat, corresponding to the 
 wound. Held, though both might have been 
 made while deceased was in the water, or fall- 
 ing in, yet it was evidence for the juiy to find 
 that the death was caused by. accident, and 
 
 there was no presumption in law that he com- 
 mitted suicide. Mallory v. Travelers Ins. Go., 
 47 N. Y., 52. 
 
 3. Insurance against accident while trav- 
 eling by public or private conveyances. In- 
 sured ran and jumped upon the step of an om- 
 nibus, intending to get into it while it was in 
 motion. He slipped, fell and was injured. 
 Held, a loss within the policy. CJiampUn o. 
 Raihjoay. Passengers Ass. Co., 6 Lans., 71. 
 
 4. Accident policy stipulated: "The in- 
 sured is required to use all due diligence for his 
 personal safety and protection." He was hav- 
 ing a barn erected, and while standing upon a 
 joist in the second story it broke, he fell, and 
 was killed. Held, no defense to the action. 
 Stone V. U. S. Casualty Ins. Co., 34 N. J., 371. 
 
 5. Stipulated: "Not liable, unless injury 
 and death shall be caused solely by accident." 
 The person insured went out to assist in get- 
 ting in hay. Shortly before dinner he returned 
 in great pain, and said that while pitching hay 
 the fork handle slipped through his hands and 
 struck him on the bowels. This produced 
 peritonitis, from which he died. Held, an ac- 
 cidental death. North American Life and Ac- 
 cident Ins. Co. V. Burroughs, 69 Penn. St., 43. 
 
 6. Against loss of life in the sum of $2,000, 
 " To be paid within ninety days after sufficient 
 proof that insured has sustained personal in- 
 jury caused by any accident within the mean- 
 ing of this policy, and the conditions hereto 
 annexed." One of the conditions provided 
 that " No claim should be made in respect of 
 any injury unless the same shall be caused by 
 some outward and visible means. This insur- 
 ance siiall not extend to any injury caused by 
 his willfully exposing himself to any unilo- 
 cessary danger or peril." He was insured as 
 a locomotive engineer, and while in the dis- 
 charge of his duty, backing an engine on a 
 down grade with a car in. front, he directed 
 the fireman to manage the engine and he went 
 over the tender into the car to set the brakes 
 for the purpose of checking the speed of the 
 car. In doing so he slipped, fell between the 
 car and tender, and was instantly killed. The 
 speed was about eight miles an hour. Held, 
 an accident within the meaning of the policy. 
 Proeidence Life Ins. Co.v. Martin, 32 Md., 310. 
 
 7. Policy against injuries by accident. 
 Stipulated : " Not liable for any injury 
 which shall happen by his willfully and wan- 
 tonly exposing himself to any unnecessary 
 
 21 
 
43 
 
 ACCIDENT. 
 
 44 
 
 What is not. 
 
 danger or peril. luBured attempted to get on 
 a train of cars while they were in slow motion, 
 fell under them and was killed. Held, the 
 court erred in ordering the plaintiff to be non- 
 suited. Schneider v. Provident Life Ins. Go., 
 24 "Wis., 28. 
 
 8. Stipulated : " It does not insure against 
 death or disability arising from Jiernia, or any 
 other disease or cause arising within the sys- 
 tem of the assured, before or at the time, or 
 following such accidental injury, whether 
 causing death or disability directly or jointly, 
 ■with such accidental injury." He accident- 
 ally fell with violence on the floor, and there- 
 by became ruptured in the bowels, and afflict- 
 ed with strangulated Jiemia in the abdomen, 
 whereupon a surgical operation was necessa- 
 rily performed for the purpose of relieving 
 him, from which he died. Seld, a loss 
 within the policy. Vittvn v. Accidental Death 
 Ins. Co., 11 C. B.(N. S.), 122; 8. C, 34 L.J. 
 C. P., 28. 
 
 9. Stipulated: "No claim shall be paya- 
 ble in respect of death by accident, unless the 
 same shall be occasioned by some external or 
 material cause, operating upon the insured 
 person." He went to bathe in a pool one foot 
 deep, became insensible and fell face down- 
 wards and soon after found, water escaped 
 from his lungs in a manner which proved 
 that he had breathed after falling in the 
 water. The immediate cause of death was 
 suffocation by water ; but that would not have 
 taken place had he been capable of helping 
 himself; and, his inability to help himself 
 was the consequence of his insensibility. 
 Seld, an accidental death. Reynolds v. Acci- 
 dental Ins. Oo., 18 W. K.,1141; 22 L. T. (N. S.), 
 820. . 
 
 10. Against death, or personal injury 
 caused by accident. Stipulated: "No claim 
 shall be allowed, unless caused by outward 
 visible means, of which satisfactory proof can 
 be furnished the directors." Deceased left his 
 lodgings, Monday, 7 o'clock, P. M., having ex- 
 pressed an intention to bathe before his return 
 to London. His clothes were found on the steps 
 uf a bathing machine, and, about six weeks 
 thereafter, a body was found on the Essex 
 coast, which his relatives deposed was the 
 body of the person insured ; but the jury found 
 that it was the body of " a person unknown." 
 Held, assuming that he died from drowning, 
 it was death by accident; and it was a ques- 
 
 22 
 
 tion of fact for the jur)' to determine, whether 
 death was caused by drowning or by natural 
 causes (overruling, S. C, 5 H. & N., 211 ; 29 
 L. J. Ex., 218 ; 8 W. K., 191). Trew v. Railway 
 Passenger Ass. Co., 6 H. & N., 839; 7 Jur. 
 (N. S.), 878; 30 L. J. Ex., 317; 9 W. R., 671; 
 4 L. T. (N. S.), 833. 
 
 11. Against injuiy from accident or vi- 
 olence: "Provided, the injury shall be oc- 
 casioned by any exterual or material cause, 
 operating upon the person of the insured." 
 Held, an injury caused by lifting a heavy 
 burden, which sprained the muscles of his 
 back was within the policy. Martin v. Tram- 
 elei-B Ins. Go., 1 F. & F., 505. 
 
 12. £1,000 payable to legal representa- 
 tives in event of death happening to insured 
 from railway accident while traveling in any 
 class carriage on any line of railway in G. 
 B. or I., or a proportionate part to insured 
 in case of his sustaining any personal injury, 
 by reason of such accident. He traveled in a 
 railway carriage to point of destination ; train 
 stopped; stepped out with due care, but 
 slipped off the iron step and sustained injury. 
 Held, a railway accident within the meaning 
 of the contract. Held, also, the damage was 
 not to be estimated by the proportion that the 
 injury bore to the amount payable in case of 
 death. Held, also, he was not entitled to re- 
 cover for loss of time or loss of profits, but for 
 all expense and suffering caused by the injury. 
 Theobald v. Railway Passenger Ass. Co., 10 
 Exchr., 45; 23 L. J. Ex., 249. 
 
 II. What is not. 
 
 1. Stipulated: "The company shall not be 
 liable unless death shall be caused by an 
 accident while the insured is traveling by 
 public or private conveyance." He left the 
 steamboat to walk to his residence, about 
 eight miles distant; and, while proceeding, 
 was injured by accident from which he died. 
 Held, traveling on foot was not traveling by 
 public or private conveyance, therefore the 
 company was not liable. Ripley v. Jns. Co., 16 
 Wall., 336. 
 
 2, Policy against death or injury, by vio- 
 lent or accidental means, stipulated : " It shall 
 not extend to any injury of which there is not 
 visible sign, and no claim shall be made if 
 the. injury is caused by over exertion or lift- 
 ing, except in cases of perilous necessity; noi 
 
45 
 
 ACCIDENT. 
 
 46 
 
 Constiuotion — GreneraUy. 
 
 of unnecesssary exposure to danger or peril ; 
 and the party insured is required to use due 
 diligence for personal safety and protection." 
 Insured went by train to Kewcastle, where he 
 had an engagement to meet a person next 
 morning at eight o'clock at the depot, at 
 ■which time ilie train would start. He failed 
 to find the person at one depot, but was in- 
 formed that there was another depot. He 
 jumped ofif the train, felt no shock, and 
 walked briskly to the other depot, where ho 
 found the person he was in search of. Dur- 
 ing the day he felt pain about the knee joint, 
 and on application to a physician was ex- 
 amined, and a partially developed rupture 
 was found in his right loin. Held, the injury 
 did not result from any accident within the 
 meaning of the contract, for running or jump- 
 ing are not accidents. Southard ■o. Railway 
 Passenger Ass. Go., 34 Conn., 574. 
 
 3. "Against accidents, all forms of cuts, 
 stabs, tears, bruises, concussions, crushings, 
 when accidentally occurring from material or 
 external cause, operating upon the person of 
 the insured, where such accidental injury is 
 the direct and sole cause of death or disa- 
 bility; but it does not insure against death or 
 disablity arising from gout, hernia, erysipelas 
 or any other disease or secondary cause or 
 causes, arising within the system of the in- 
 sured, before, or at the time of, or follow- 
 ing such accidental injury." While washing 
 his feet, the earthenware pan was accidently 
 broken, his fool slipped against the broken 
 side, and he received a cut under the ankle. 
 Five days thereafter, erysipelas set in, and he 
 died within a week from the time the acci- 
 dent occurred. Seld, this was a secondary 
 cause of death, which was excepted by the 
 terms of the contract. Kblly, C. B., dissent- 
 ing. Smith V. Accident Int. Co., 5 L. R. Ex., 
 302; 39 L. J. Ex., 211; 18 W. R.. 1107; 22 L. 
 T. (N. S.), 861. 
 
 4. Against accidents. He was sunstruck, 
 from the eflFects of which he died. Held, his 
 death must be attributed to natural causes, 
 and not to accident Sinclair v. Maritime Pas- 
 sengers Ins. Co., 3 El. & El., 478; 8. C, 7 Jur. 
 (N. S.), 367 ; 30 L. J Q. B., 77 ; 4 L. T. (N. S.), 15 ; 
 9 W. R. 342. 
 
 III. CONSTEUCTION. 
 
 1. Stipulated: "The company will be liable 
 
 for death caused by accident, while traveling 
 by public or private conveyance, provided for 
 the transportation of passengers." Insured 
 was an engineer on the Pacific railroad, en- 
 gaged in running trains, of which insurer had 
 notice at the time the ticket was sold. He 
 was accidentally killed while in that employ- 
 ment upon a locomotive engine. Seld, as he 
 was not insured as a passenger and traveler, 
 but against accidents without regard to the 
 capacity in which he was acting, the rea- 
 sonable inference should be, that the ticket 
 was intended to cover the accident by- which 
 he met his death ; if the meaning was doubt- 
 ful, the construction must be for the plaintiff, 
 for the promisor could not have failed to 
 apprehend that the promisee labored under 
 the impression that he was insured while en- 
 gaged in his business. Brown v. Railway Pas- 
 senger Ass. Co., 45 Mo., 221. 
 
 IV. Geneeallt. 
 
 1. Stipulated: "Defendant is liable only 
 for loss of time, from the time of the accident 
 and injury which totally disables and iire- 
 vents all kinds of business by reason of 
 bodily injuries effected during the term of 
 the policy, through violent or accidontal 
 means." Insured was injured September 
 2d, he continued at his labor from day to day 
 till the 18th., when the injury became so 
 painful that he was unable to work, and did 
 not reiume work till the middle of November ; 
 but between the 2d and 18th of September his 
 heel was caught in the stairs, where he was at 
 work, his knee was wrenched, and the former 
 injury so aggravated that he became totally 
 disabled from September 18th. Seld, before 
 insured could recover, it must appear there 
 was a total disability caused by an accident 
 within the term insured. Rhodes v. Railway 
 Passenger Ass. Co., 5 Lans., 71. 
 
 2. Stipulated : " No claim shall be made 
 under this policy in respect of any injury un- 
 less the same shall be caused by some outward 
 or visible means, of which proof satisfactory can 
 be furnished." Held, not a condition prece- 
 dent, for it was sufficient to make the proof 
 upon the trial of the cause. Railway Pas- 
 senger Ass. Co. «. Burwell, 44 Ind., 460. 
 
 3. Stipulated: " In case such accident shall 
 not cause death immediately, but shall wholly 
 disable him from following his usual business, 
 
 23 
 
i7 
 
 ACCORD AND- SATISFACTION— ACTION. 
 
 48 
 
 Pom of. 
 
 occupation or pursuits, the company will pay 
 a compensation in money, £5 per week, dur- 
 ing the continuance of such disability." He 
 sprained his ankle, was confined to his bed- 
 room, and prevented from passing his ac- 
 counts as registrar, and from attending at 
 various places which he was required to 
 attend, to complete purchases for his clients. 
 Held, he was wholly disabled from following 
 his usual business, occupation or pursuits. 
 Hooper t. Accidental Death Ins. Co.,5 H. & N., 
 557 ; 29 L. J. Ex., 484 ; 7 Jur. (N. S.;, 73 ; affirm- 
 ing S. 0., 5 H. & N., 546; 29 L. J. Ex., 340; 8 
 W. K., 616. 
 
 ACCORD AND SATISFACTION. 
 
 1. The widow received $1,000 from the as- 
 aigne* of a policy, and afterwards she took out 
 letters of administration and sued for the bal-. 
 ance. Held, the receipt of what was paid her 
 in her own right, before any administration, 
 could not affect her rights as administratrix. 
 Cammackv. Lewis, 15 Wall., 643. 
 
 ACCOUNT BOOKS. 
 
 (See EvmBKCB, IX aitd XVI; Pkoots ot Losb, Vn.) 
 
 ACCOUNT STATED. 
 
 1. The defendant's president adjusted the 
 loss, and promised to send insured a check 
 for the amount. This action was brought 
 upon the policy. The court refused to allow 
 plaiutiff to amend and proceed upon the new 
 promise. Held, error, for, stating an account 
 is in the nature of a new promise (citing 
 Holmes v. D'Camp, 1 Johns., 34; Chitty on 
 Con., 648). To sustain an action upon an ac- 
 count stated, it is sufficient to prove that the 
 defendant admitted that a certain sum was 
 due. Smith v. Qlens Falls Ins. Go., 66 Barb., 
 556. 
 24 
 
 ACTION. 
 
 (See Abatement; Ahendmeitts ; Contract; Jubis- 
 diction; Luotation of Actions ; Fleasing.} 
 
 I. FOKM OF. 
 
 II. Pakties. 
 
 (a) Misjoinder. 
 
 (b) Necessary parties. 
 
 III. What confers right of. 
 
 IV. DOBS NOT CONFER RIGHT OF. 
 
 V. When it accrues. 
 VI. Who mat or must stxe. 
 
 (a) Of the assignee, payee, mortgagee, 
 
 or trustee. 
 
 (b) Of the principal, or an undisclosed 
 
 principal and personal represen- 
 tatives of insured. 
 
 (c) Who may join. 
 
 (d) Who need not join. 
 VII. Who cannot sitb. 
 
 VIII. When prematdrb. 
 
 IX. NOT premature. 
 
 X. Separate causes of. 
 
 I. FoEM OF. 
 
 1. Assumpsit cannot be maintained upon a 
 policy under seal, nor is the defect cured by 
 verdict. Marine Ins. Co. v. Toung, 1 Cranch, 
 332. 
 
 2. The action was debt The writ and dec- 
 laration claimed $2,(X)0. Seld, in the action 
 of debt, the writ and judgment must conform 
 in amount; but the jury had a right to find 
 for the plaintiff less than the sum claimed by 
 the writ and declaration, and the plaintiff 
 could enter a remittitur for the difference. 
 Hughes v. Union Ins. Go., 8 Wheat., 294. 
 
 3. A sealed policy was made. It expired, 
 and an agreement was made to renew it for 
 another term; but the agreement was not 
 under seal ; it was a mere receipt for the pre- 
 mium. Held, covenant was not the proper 
 form of action. Luciani v. American Fire 
 Ins. Go., 2 Whart., 167. 
 
 4. Policy to W., a sealed instrument, for the 
 term of one year, and for any future time for 
 which a premium should be paid and in- 
 dorsed. It was assigned to plaintiff, and re- 
 newed from time to time for five or six years 
 to the plaintiff, who paid the premiums, which 
 were regularly indorsed. Held, an actioa of 
 
49 
 
 ACTION. 
 
 60 
 
 Parties. 
 
 debt in the name of the plaintiff was proper. 
 Franklin Fire Ins. Co. v. Maaey, 33 Penn. St, 
 231. 
 
 5. Debt on a policy to recover for a stock of 
 barley, malt and bops. Held, the action would 
 lie. Peoples Ins. Go. «. Spencer, 53 Penn. St., 
 853. 
 
 6. Policy under seal for a term. It did not 
 provide for continuing it in force after the 
 term should expire, but the parties agreed to 
 renew it for another term. Held, a parol con- 
 ti-act. Mutual Fire Ins. Co. «. Deale, 18 Md., 26. 
 
 7. Debt upon a policy of insurance under 
 seal, which was renewed at the expiration of 
 term, for another year, for a new considera- 
 tion. Held, debt was not the right form. 
 Flanagan v. Camden Mut. Ins. Co., 35 N. J., 
 506. 
 
 8. The defendant sold goods to the plaintiff 
 on credit, and it was agreed between them that 
 the goods should be manufactured, and that 
 the defendant should hold the manufactured 
 article, and sell it in discharge of the plain- 
 tiff's indebtedness, and that defendant should 
 insure the goods in his own name, for the ben- 
 efit of the plaintiff and himself. They were 
 insured, but the policy stipulated : " Property 
 held in trust or on commission shall be in- 
 sured as such, otherwise the policy will not 
 cover it." The insurer paid the defendant for 
 his own goods, but refused to pay for what 
 were held in trust. Held, if neither the plain- 
 tiff nor defendant could have recovered upon 
 the policy, then an action for money had and 
 received could not be maintained against the 
 defendant Turner v. Stetis, 38 Ala., 430. 
 
 9. Debt on a policy of insurance in which 
 there was an averment of total loss. Held, the 
 plaintiff could recover for a partial loss. Peo- 
 ria Marine and Fire Ins. Co. v. Whitehill, 35 
 111., 466. 
 
 1 0. Case wiU lie against a party who under- 
 takes to have insurance effected for another, 
 if the party so undertaking takes steps for 
 that purpose, but does it so negligently that 
 the insured receives no benefit from it, not- 
 withstanding there is no consideration for the 
 service. Wilkinson v. Cocerdale, 1 Esp., 75. 
 
 11. The instrument in suit covenanted to 
 apply the capital funds of the company to the 
 payment of the loss, which was averred to 
 Lave happened. There was also an averment 
 in the declaration that the loss was total, and 
 the Tcrdict was for the sum insured. Held, 
 
 debt Was maintainable upon it. Sunderland 
 Marine Ins. Co. v. Kearney, 16 Q. B., 925; 
 30 L. J. Q. B., 417 ; 15 Jur., 1006. 
 
 II. Pakttes. 
 
 (a) Misjomder. 
 
 1. Policy to E. and F. The former assigned 
 to the latter, to which insurers assented. Held, 
 an action in their joint names could not be 
 sustained. Ferriss v. North American Fire 
 Ins. Co., 1 Hill., 71. 
 
 2. Policy to one will not permit others to 
 join in the action. Burgher v. ColumMan Ins. 
 Co., 17 Barb., 374. 
 
 3. The Prat Mut. Ins. Co. entered into a 
 contract with the U. S. Life Ins. Co., by which 
 the former transferred to the latter all its prop- 
 erty and effects, and agreed to transact all its 
 business in its own name, but for the exclu- 
 sive profit of the latter, and in all things to be 
 under the control of, and do its business 
 through the agents of the latter. The plaintiff' 
 made application for a policy on the life of 
 her husband, which was appi-oved by the U. S. 
 Life Ins. Co., and granted in the name of, and as 
 made by, the Frat Mut. Ins. Co. Another policy 
 was made and delivered by the U. S. Life Ins. 
 Co., upon the same life, for same amount, and 
 on the same terms, to the Frat Mut Ins. Co., 
 by way of reinsurance. The plaintiff brought 
 suit against the Frat Mut Ins. Co., the U. S. 
 Life Ins. Co., and certain stockholders who 
 were alleged to be indebted for capital stock, 
 claiming a joint judgment against them all, 
 upon the policy made by the Frat Mut Ins. 
 Co. A default and judgment was entered 
 against the Frat. Mut. Ins. Co., and execution 
 issued thereon foi the whole amount claimed, 
 which company assigned to the plaintiff the 
 policy of reinsurance iVom the U. S. Life Ins. 
 Co. The plaintiff, in a supplemental bill, set 
 up the assignment, and claimed judgment 
 against the TJ. S. Life Ins. Co. Held, when 
 one is authorized to act for another, for his 
 exclusive benefit, though the contract is in the 
 name of the agent only, an action may be 
 brought against the principal himself, wholly 
 disregarding the agent; or the action maybe 
 brought against the agent alone, at the option 
 of the party, who has the right to elect which 
 person he may sue. But he must elect, and 
 cannot make both liable in the same action, 
 
 25 
 
51 
 
 ACTION. 
 
 52 
 
 What confers right of. 
 
 fbr they are not joint contractors. Lee v. 
 FraUrnal Mut. Ins. Co., 1 Handy, 217. 
 
 (b) Necessary parties. 
 
 4. Twenty-two persons were separate in- 
 surers on a ship from New York to Savannah 
 and thence to Kingston, Jamaica. These paid 
 a total loss on the vessel, which was captured 
 on the voyage. Others insured the cargo and 
 freight, and these also paid a total loss on 
 them. The cargo being abandoned sold for 
 $9,727, which was expended by the master for 
 repairs, expenses and disbursements at Jamai- 
 ca. She proceeded on another voyage and 
 earned freight. Held, each underwriter was 
 interested separately, and not jointly, in the 
 proportion which his subscription bore to the 
 value of the subject That appointing a com- 
 mon agent, to manage the subject, did not 
 make the insurers copartners; and that an ac- 
 tion brought by them severally, for a propor- 
 tion of the proceeds of the cargo, necessarily 
 applied for repairs and expenses to prosecute 
 the voyage, could be maintained. United Ins. 
 Go. 0. Scott, 1 Johns., 106. 
 
 5. The owner mortgaged the property for 
 its full value, and the policy was made " for 
 account of whom it might concern." The mort- 
 gagees were the legal owners at the time of 
 the loss. Held,, they w^ere the only necessary 
 parties to the suit; that the mortgagor was not 
 a necessary party. Rogers v. Traders Ins. Co., 
 6 Paige Ch., 583. 
 
 6. F. brought his action to recover on the 
 ground that the interest of the promisees had 
 been extinguished. Held, it was necessary to 
 make them parties, especially as it was not 
 alleged that their interests had been extin- 
 guished or transferred to the plaintiff by any 
 act done by them, or with their knowledge or 
 assent. Fowler c. Atlantie Mvt. Itis. Co, 8 Bos., 
 332. 
 
 7. Bill in equity may be maintained against 
 officers of a mutual insurance company who 
 have the funds of the company to pay claims, 
 but apply them to their own uses ; but the com- 
 pany must be made a party. Lyman «. Bon- 
 ney, 101 Mass., 563. 
 
 III. What confees eight of. 
 
 1. If the insurer accepts the abandonment 
 and pays the claim, and the property is pur- 
 
 chased of the captors by a person acting for 
 the insured, and the proceeds are invested in 
 goods and they are sent to the insured, the iu- 
 surers may affirm the act and maintain trover 
 for the property. Solinson v. United Ins. Co., 
 1 Johns., 593. 
 
 2. Ship owned by two persons in different 
 proportions ; one of them agreed to keep the 
 vessel insiu-ed. He insured her without men- 
 tioning for whose account. A loss happened 
 and insurer paid him the sum insured. Held, 
 he was liable to his coowner for his interest 
 Burrows d. Turner, 34 Wend., 276. 
 
 3. Insured contracted to sell the property 
 January 1, 1862, upon condition that C. should 
 perform certain agreements, among which 
 were payment of the expense of insurance, 
 taxes and assessments. Under this agreement, 
 G. entered into possession, and this policy 
 was made December 13, 1863, stipulating: 
 " Claims against this company by the assignee 
 or mortgagee, or other persons holding this 
 policy as collateral security, shall not be pay. 
 able until payment of such portion of the 
 debt shall have been enforced as can be col- 
 lected out of the original security, and this 
 company shall only be held liable to pay such 
 sum, not exceeding the sum insured, as can 
 not be collected out of such primary sectu'ity." 
 The premises were consumed November 29, 
 1866. Held, the policj was for the beuefit of 
 0. ; that it was not collateral security, hence 
 the stipulation recited had no effect upon the 
 rights of the parties; that insured had an in- 
 surable interest, sufficient to maintain the ac- 
 tion in his own name. Wood v. Northwestern 
 Ins. Co., 46 N. T., 431. 
 
 4. Policy to H. & B. stipulated: "Any 
 transfer or termination of the interest of in- 
 sured by sale or otherwise, without insurers 
 consent, shall render it void." The entire stock 
 in trade was sold under execution, and bought 
 by the plaintiff, who, without stating what he 
 had done, asked insurers to transfer the policy 
 to him, which they did by indorsing: "The 
 interest of H. & B. in the within policy is as- 
 signed to H.," and H. & B. executed an assign- 
 ment to H. Held, had a loss occurred between 
 the sale and the assignment, no recovery could 
 have been had, for, the parties insured would 
 have suffered no loss, yet Uie policy continued 
 to be a valid subsisting contract; and had H. 
 & B. subsequently purchased the same or 
 other goods and brought them into the store, 
 
53 
 
 ACTION. 
 
 64 
 
 What does not confer right of. 
 
 thej' would have been protected by the policy ; 
 that when it was assigned to the plain lift" with 
 the company's consent, he took the place of 
 H. & B., and it then attached to his goods, for 
 the loss of which the company must answer. 
 Hooper «. Hudson, Biver Fire Ins. Co., 17 N. 
 Y., 434; S. C, 15 Barb., 413. 
 
 5. Plaintiffs shipped a quantity of corn at 
 Buffalo for New York, ou boats owned by S., 
 who insured it with the defendants. It was 
 sunk in the Hudson river. The defendants 
 intervened and saved a portion, and sold it for 
 the gix>ss sum of $3,326.37 ; "but the expense 
 of saving, together with tlie freight and other 
 charges, amounted to $76ft.a3, leaving in the 
 defendants' hands net proceeds, $1,556.83. S. 
 recovered of defendants, on his policy, the 
 whole value of the corn, less the net proceeds. 
 Held, plaintiff was entitled to recover the net 
 proceeds and interest from the time demand 
 made. Robinson v. Corn Exchange Ins. Co., 
 1 Abb. Pr. (N. S.), 186; ;(5. C, 1 Rob. (N. Y.), 
 
 14- 
 
 6. Policy to " D. or as agent." It was in- 
 tended to be for the benefit of D. and another 
 joint owner. Held, D. could recover the whole 
 amount of the loss in his own name. Davis 
 V. Boardman, 12 Mass., 80. 
 
 7. " On any property for which they may 
 be liable in freight buildings or yards in 
 Charlestown." Insured were common car- 
 riers. They had certain goods for transporta. 
 tion over the Vermont & M. R. R. or over the 
 Cheshire & S. R R. These roads had entered 
 into an agreement with insured to indemnify 
 insured for any loss of or damage to any and 
 all goods and freight of every description 
 while in transit over tlie road of insured, or in 
 its depSts or upon its premises. Held, not- 
 withstanding the V. & M. R. R. as well as the 
 C. & S. R. R. were liable under their contracts 
 with insured for the loss of the goods, insurers 
 were still bound to respond to insured under 
 the policy. Gomrnonwealth v. Hide & Leather 
 Ins. Go., 112 Mass., 136. 
 
 8. The owner of cargo is personally liable 
 for his contribution in general average, not- 
 withstanding that he has abandtmed to his in- 
 surers. Delaware In*. Co. «. Delaunie, 3 Binn., 
 S95. 
 
 9. The policy under seal, in the name of an 
 agent, was intended to cover the interests of 
 both owners ; but one of them disclaimed au- 
 thority to make the insurance. Held, that did 
 
 not defeat the right of covenantee to recover 
 to the extent of the other owner's half inter- 
 est. American Ins. Go. v. Insley, 7 Penn. St. 
 233. 
 
 10. Plaintiffs were ordered to ship and fully 
 insure certain goods on account of Swan et al. 
 Plaintiffs shipped, insured as directed, and re- 
 tained the policy. They were captured. Held, 
 the plaintiffs, as holders of the policy, must 
 have recourse to the insurers in the first in- 
 stance. Grey v. Swan, 1 H. & J., 143. 
 
 11. A broker made insurance as agent, and 
 covenanted in the policy to pay the premium 
 to the insurers. He became bankrupt. Held, 
 his assignee was entitled to recover of the in- 
 sured the premium for which the bankrupt be- 
 came debtor to the insurers, notwithstanding 
 the broker had not paid the insurers. Power 
 V. Butcher, 10 B. & C, 339 ; 8 L. J. K. B., 217. 
 
 12. Stipulated: " Neither the directors who 
 signed the policy, nor the insured, nor the 
 holder of it, shall, as members of the society, 
 be liable for any loss, except under the articles 
 establishing the society." The action was 
 against the directors who executed the policy, 
 with averments that tiie funds of the society 
 were sufBcient to satisfy the loss. Held, the ac- 
 tion was properly brought against them. An- 
 drews V. Ellison, 6 J. B. Hoore, 199. The stat- 
 ute of 14 Q«o. HI, ch. 48, § 2, which requires 
 the name of the person for whose benefit the 
 policy is made to be inserted, applies only to 
 cases between insured and insurer, and does 
 not preclude an executor from recovering 
 Irom a party who received money upon a 
 policy which did not conform to the statute. 
 Lysons e. Barrow, 5 L. J., C. P., 102. 
 
 IV. What does not conpee eight of. 
 
 1 . Insurance, if effected by the agent, pursu- 
 ant to instructions from his principal, would 
 have been void. Held, the principal could 
 not maintain an action against the agent for 
 not procuring it according to instructions. 
 Alsop 0. Goit, 12 Mass. 40. 
 
 2. Policy to B., payable, in case of loss, to 
 S., mortgagee. There was no written evi- 
 dence that insured had assigned the policy ; 
 but there was evidence that the defendant 
 brought the policy to the ofHce of the plaint- 
 iff, and that he agreed to pay the assessments 
 that might be laid upon it, and that itremained 
 there till suit was brought upon it for the as- 
 
 27 
 
55 
 
 ACTION. 
 
 66 
 
 Wliat does not confer right of. 
 
 sessments. Seld, the plaintiff could not re- 
 cover. Bowditch Mut. Fire Int. Co. «. Buffom, 
 2 Gray, 550. 
 
 3. The plaintiff procured a nonforfeitable 
 policy upon his own life, payable to S., which 
 called for the payment of five annual premi- 
 ums only; all were paid except the last S. 
 knew nothing of the transaction. The plaint- 
 iff retained possession of the policy and had 
 it at the trial of this cause. Before the last 
 payment became due, he applied to the com- 
 pany to make the policy payable to himself 
 or his legal representatives, which was re- 
 fused, unless the consent of 8. could be ob- 
 tained, but S. refused consent. Held, the court 
 had no power to compel S. to give that con- 
 sent or to assign the policy. Potter v. Spil- 
 man, 117 Mass., 323. 
 
 4. Policy on life of A. for the sole use of 
 his wife, payable to him and them, on condi- 
 tion it should not bo assigned except for the 
 benefit of the wife and children of insured, if 
 there were any; but might be assigned to 
 any person, with the assent of an oflBcer of 
 the company; and in case insured should die 
 without making a valid assignment, or with- 
 out wife or children surviving, then the 
 amount insured should be added to the per- 
 manent funds of the society. He made an as- 
 signment of one half of the policy to B., and 
 died without wife or children surviving. Seld, 
 his administrator was not entitled to recover 
 the half not assigned. Commonwealth v. Unity 
 Mut. Life Aa$. Co., 117 Mass., 337. 
 
 6. Valued policy on vessel for one-third her 
 value. Insurers paid a total loss, and were 
 subrogated to all the rights of insured, who 
 brought this action to recover his proportion 
 of the wreck. Insurers had made examina- 
 tion and determined it was not worth the risk 
 of attempting to raise it. Held, they were not 
 liable, for they were not bound to look after 
 the interest of the insured. Allegheny Ins. Co. 
 e. Ransom, 69 Penn. Bt, 496. 
 
 6. Stipulated : " In any and all such cases, 
 this policy shall be void and all payments 
 thereon forfeited ; but, in case of forfeiture, 
 the party interested shall have the benefit of 
 such equitable adjustment as may from time 
 to time be provided for by the board of di- 
 rectors." Held, the court could not interfere 
 with the directors' discretion without doing 
 violence to the contract Niglaingale c. State 
 Mut. Life Ins. Co., 5 K. I., 38. 
 28 
 
 7. An action does not lie against officers of 
 insurance companies who have combined and 
 confederated to refuse to take insurance on a 
 steamboat. Hunt v.Simonds, 18 Mo., 583. 
 
 8. Insurance against the consequences of 
 militia ballots. A militia ballot was illegally 
 conducted, in consequence of which every 
 man liable to the ballot was actually drawn. 
 Held, as it was not a legal proceeding, it im- 
 posed no obligations upon anybody; hence the 
 insurer was discharged, notwithstanding the 
 insured served in person (reversing, S. O. in 
 in Court of Session). Scott v. Mcintosh, 2 
 Dow, 322. 
 
 9. F. W. & M., trustees and directors of a 
 flre insurance company, executed a policy to 
 indemnify A. B. 0, for loss by fire, whereby 
 they ordered, directed and appointed the di- 
 rectors, for the time being, to pay the loss 
 which A. B. C. should sustain in consequence 
 of flre. Held, covenant would not lie upon 
 the instrument ; that neither the parties who 
 executed it nor the directors for the time be- 
 ing, were liable at law. Alehome t. Smille, 6 
 J. B. Moore, 202, n. ; 4 L. J. Ch., 47. 
 
 10. The lessee agreed to insure the premises 
 against flre, and effected a policy upon them. 
 They were destroyed by flre, and the lessor 
 informed the secretary of the agreement, who 
 said that the company regarded the destruc- 
 tion of the houses with some suspicion. The 
 lessor thereupon informed the secretary that 
 he claimed the benefit of the policy, either 
 the money, or to have it expended in rebuild- 
 ing the premises, and that he would rely upon 
 the company's refusal to pay the lessee. It 
 was also alleged by the complainant that the 
 company's secretary assented and, notwith- 
 standing that assent, compromised with the 
 lessee, and obtained a discharge from him of 
 all liability under the policy. The plaintiff 
 rebuilt the premises, and claimed payment of 
 the money in respect of such rebuilding. 
 Held, on demurrer, for want of equity there 
 was not a sufficient request within 14 Geo. Ill, 
 ch. 78, sec. 83; that, had there been one, the 
 plaintiff could not rebuild and charge the 
 company with the expense; and that the rem- 
 edy, if any, was by mandamus. Simpson «. 
 Scottish Union Fire & Life Ins. Co., 9 Jur. (N. 
 S.), 711 ; 1 H. & M., 618; 32 L. J. Ch., 329. 
 
 11. The policy was assigned, a loss oc- 
 curred, and the assignee applied for payment 
 of the insurance money, which was refused 
 
57' 
 
 ACnON. 
 
 5Sr 
 
 When it accrues — Who may or must sue. 
 
 unless he ■would procure an attachment, which 
 he did. Payment was then refused until the 
 attachment should be withdrawn, which was 
 done, the plaintiff's clerk taking with him to 
 defendant's notice of the withdrawal. He- 
 was accompanied by tlie person insured, and 
 the assignee's clerk. Thereupon insurers drew 
 their check to the order of insured, and deliv- 
 ered it to him. He received the money, and 
 refused to pay. any of it over to the assignee. 
 Held, it was a question of fact for the jury to 
 determine whether insurers had made any 
 promise to the assignee. Also, held, that the 
 action could not be maintained in the absence 
 of such a promise. The jury found there was 
 no such promise, hence the action could not 
 be maintained. London Investment Go. e. 
 Montefiore, 9 L. T. (N. S.), 688. 
 
 12. The debtors of S. assigned a policy to 
 him, and agreed to pay the premiums. An 
 order was made to wind up the company, and 
 the assignee filed this bill, praying that the 
 assignors be compelled to pay to him the 
 amount of premiums when they should fall 
 due in the future. Held, upon demurrer to 
 tlie bill, it must be dismissed. OamUt v. 
 Heinke, 40 L. J. Ch., 306. 
 
 13. A broker procured a policy on cargo. 
 It arrived safely, but the consignor stopped it 
 in the hands of the carrier, and the broker 
 brought this action against the consignor for 
 the premium. Held, he could not maintain it. 
 Smith V. Drake, Faculty Decs., 1808 to 1810, 
 p. 244. 
 
 V. Whek it acceues. 
 
 1. Policy to a wife upon the life of her hus- 
 l)and, a resident of the state of Georgia. 
 Thirteen annual premiums had been paid upon 
 it, when the civil war interrupted all inter- 
 course between the northern and southern 
 states, and the annual premiums during the 
 interruption were not paid; but so soon as 
 communication was restored, they were ten- 
 dered with interest and refused ; and during 
 her husband's lifetime she brought this action 
 to compel the company to receive the premi- 
 ums, or to repay all that she had paid, with 
 interest. Held, the court had jurisdiction to 
 ■determine and settle the rights of the parties 
 (citing Baylies B.'Payson, 5 Allen, 473; Ball 
 •c. Coggs, Brown's Pari. Rep., 296; Buxton v. 
 
 Lester, 8 Atk., 388; 2 Story Eq. Jur., 826). 
 Cohen V. Mut. Life Tna. Co., 50 N. Y., 610. 
 
 2. Goods jettisoned must be paid for by the 
 insurer, and the insured need not demand con- 
 tribution from the persons benefited by the 
 jettison. Forbes v. Manufacturers' Ins. Co., 1 
 Gray, 871. 
 
 3. Stipulated: "The loss shall be paid 
 ninety days after proof and adjustment." Held, 
 it applied only to the case of an amicable 
 adjustment; when that cannot be made, the 
 insured is absolved from the stipulation, and 
 his right of action accrues immediately.* Al- 
 legre v. Maryland Ins. Co., 6 H. & J., 408; 
 affirmed, 2 G. & J., 136. 
 
 4. The insured is not bound to wait for the 
 adjustment of the general average, nor to de- 
 mand contribution of those who are bound by 
 law to contribute. Faulkner v. Augusta Ins. 
 Co., 2 McMuUen, 158. 
 
 5. Insured are not bound to await the pay- 
 ment of the contributions to a general average ; 
 they have the right to sue their insurers di- 
 rectly. Hanse «. JTew Orleans Ins. Co., 10 La. 
 (O. S.), 1. 
 
 6. Wagner Stat, 294, sec. 28, authorizes suits 
 to be brought against a corporation in the 
 county where the cause of action accrued, and 
 this was brought upon a life policy. He died 
 in the county of Gasconade. Held, the cause 
 of action accrued in that county. Hippstein 
 v. St. Louis Mut. Life Ins. Co., 57 Mo., 86. 
 
 7. By the terms of the policy, losses were 
 to be paid three months after adjustment made 
 by a committee ; but they refused to adjust the 
 loss. Held, the insured had a right to sue. 
 Strong v. Harvey, 3 Bing., 804 ; 4 L. J. C. P., 57 ; 
 11 Moore, 73. 
 
 8. Risk of jettison included. They were 
 jettisoned, and insured was entitled to contri- 
 bution. He sued his insurers without having 
 first collected the contributions. Held, insured 
 were entitled to recover the sum insured, and 
 the insurers were entitled to stand in the place 
 of the insured and take the contributions. 
 Dickenson v. Jardine, 3 L. R. C. P, 639 ; 37 L. J. 
 C.P.,321; 18L.T.(N. S.),717; 16W.R.,1169. 
 
 YI. Who mat oe must sue. 
 
 (a) Of the assignee, payee, mortgagee, 
 
 or trustee. 
 
 1. It seems that after the loss occurred, in 
 
 29 
 
59 
 
 ACTION. 
 
 60 
 
 Who may or must sue. 
 
 sured gave an order to his creditor for its 
 payment. Held, the creditor became the as- 
 signee, and inasmuch as the statute law of the 
 state required all actions to be brought by the 
 real party in interest, the creditor was the 
 proper person to bring the suit. Bpratley v. 
 Hartford Ins. Go., 1 Dil. 0. C, 392. 
 
 2. Policy to H. & D., or whom it may con- 
 cern, loss payable to H. & D. Held, they 
 could maintain the action. J^erion Ins. Co. 
 V. Ootheal, 7 Wend., 72. 
 
 3. A policy subsisting upon one's life may 
 be assigned by the person whose life is in- 
 sured, to a trustee, for the benefit of his wife. 
 After his death the money belongs to her, and 
 may be recovered in her own name, or, where 
 the trust is expressed, in that of the trustee. 
 8t. John r). American Mut. Life Ins. Co., 13 
 N. T., 31; 2Duer, 410. ' 
 
 4. On goods. Insured sold them to S., who 
 transferred them to the wife of B. E. assigned 
 all his rights in the policy to his wife, to 
 which insurers assented. Held, the wife 
 could recover for a loss of the goods, because 
 her rights in the goods and in the policy were 
 united by the transfer of both. Wolfe v. Se- 
 curity Ins. Co., 89 N. Y., 49. 
 
 5. Policy to H. upon property owned by 
 him, loss payable to P. as collateral. Held, 
 F. could maintain the action (citing Grosvenor 
 V. Atlantic Fire Ins. Co., 17 N. T., 391). 
 JFrinJc v. Hampden Ins. Co., 45 Barb., 384; 8. 
 C, 31 How. Pr., 30; 1 Abb. Pr. (N. S.), 843. 
 
 6. Policy to Palmer, " Loss, if any, payable 
 to Cone, as his interest may appear." The 
 property had been sold under execution, and 
 Cone held the sheriff's certificate. Palmer 
 and Cone agreed that in case Cone secured 
 title to the premises, and Palmer's wife should 
 execute a release. Cone would discharge cer- 
 tain incumbrances, and indemnify Palmer 
 against the payment of a certain bond for 
 $4,000. Held, Cone was the proper person to 
 bring the action, and Palmer's interest was 
 sufficient to sustain it. Gone v. Niagara Fire 
 Ins. Go., 8 N. T. S. C, 38. 
 
 7. Policy to P., loss, if any, payable to C. 
 Held, C. was the proper person to sue upon it 
 (citing Clinton o. Hope Ins. Co., 45 N. T., 544). 
 Cone V. Niagara Fire Ins. Co., 60 N. Y., 619 ; 
 8. C, 3 N. Y. S. C, 33. 
 
 8. W. procured insurance on his life by a 
 policy payable to the plaintiff, by which de- 
 fendants agreed " to pay to the assured, his ex- 
 
 ecutors, etc.," the sum insured. Held, the 
 word, " his," following the word, " assured," 
 means the person who is to receive the benefit 
 of the insurance, for it cannot be intended 
 that the word " assured," was used in respect 
 to the deceased. Hogle d. Chuardian Life Ins. 
 Co., 4 Abb. Pr. (N. S.), 346 ; 8. C, 6 Bob. (N. 
 Y.), 567. But if this were not so, the plaintiff, 
 being the real party in interest could maintain 
 the action. Code, sec. 111. Ibid. 
 
 9. Policy to mortgagor, loss, if any, payable 
 to mortgagee. Held, tlie mortgage being un- 
 satisfied, the mortgagee was the only person 
 who could maintain the action. Sipley v. 
 Attorlns. Co., 17 How. Pr.,444. 
 
 10. Policy to E. " on his dwelling house, 
 loss, if any, payable to B, mortgagee." There 
 was no averment in the complaint that B. had 
 been paid his debt. Held, B. had an absolute 
 right to recover ; that payment to E. without 
 consent of B. would not discharge the insurer 
 so long as the mortgage remained unsatisfied; 
 hence B. was a necessary party to the action. 
 E?inis D. Harmony Fire Ins. Co., 9 Bos., 516. 
 
 11. A policy to A., for whom it might con- 
 cern, stated on the back of it,"for A. B. & C, 
 each one third, payable to A. in case of loss," 
 all sums due insurers to be first deducted. 
 Held, A. B. & C. might sue jointly. Williams 
 f>. Ocean Ins. Co., 2 Met, 803. 
 
 12. The assignee of the policy brought this 
 suit. The company had consented to the as- 
 signment, and the original insured had sold 
 the property to the assignee. Held, he could 
 maintain the action, for the sale of the prop- 
 erty, and the consent of insurers to the assign, 
 ment established a new valid contract be- 
 tween insurer and assignee. Wilson v. Hill, 
 8 Met., 66. 
 
 13. It seems that a mortgagee to whom the 
 claim is to be paid in case of loss, upon the 
 express promise of the insurer to pay it to 
 him may in his own name maintain the ac- 
 tion. Barrett o. ITnion Ins. Co., 7 Cush., 175. 
 
 14. Insured assigned his policy, which was 
 assented to by the president of the insurer. 
 ffeJd, the assignee could maintain an action 
 upon it in his own name. Phillips v. Merri- 
 mack Fire Ins. Co., 10 Cush., 350. 
 
 15. B. was mortgagee of the property in- 
 sured. He procured the policy in the name 
 of the general owner, paying the premium 
 himself, the loss being made payable to him 
 to the extent of his mortgage interest, which 
 
61 
 
 ACTION. 
 
 62 
 
 Who may or must sue. 
 
 exceeded the sum insured. Held, he could 
 maintain the action. Hadky v. Nea Bamp- 
 shire Fire Ins. Co., 55 N. H,, 110 ; CJiamberlain 
 V. Same, id., 249. 
 
 16. Policy upon the life of the husband for 
 the use of Ijis wife and children by which in- 
 surers agreed to pay sum insured to the in- 
 sured, his executors, administrators and as- 
 signs. Insured and wife assigned it to M., who 
 assigned it to the plaintiff with the insurer's 
 consent for a valuable consideration. Held, 
 the plaintiff had the right to maintain the ac- 
 tion in his own name. Hwrougha «. StcUe 
 Life Ass. Co., 97 Mass., 3o9 ; Arhcibald o. Ma- 
 tual Life Ins. Co., 88 Wis.^ 543. 
 
 17. The act of incorporation granted di- 
 rectors power to make necessary and conven- 
 ient by-laws. They provided that a mortga- 
 gee who had the policy assigned to him might 
 by consent of the directors have it ratified 
 and confirmed for his benefit. Held, the by- 
 law was valid; also, the assignment having 
 been made and ratified, and loss claimed, the 
 action for it must be brought in the name of 
 the assignee. SoUins v. Columbian Hut. Fire 
 Ins. Co., 25 N. H., 200). But if the policy 
 was given in pledge, without a transfer of an 
 interest in the subject insured, the insured is 
 the proper person to bring the suit. Ibid. 
 
 18. Payable to the company or their treas- 
 urer. jff«i(i, not a promise in the alternative; 
 but, whether it was or not, it was a contract 
 with the company, in whom the right of ac- 
 tion existed. Atlantic Mut. Fire Ins. Co. o. 
 Young, 38 N. H., 451. 
 
 19. The plaintiffs were the trustees of a 
 voluntary association. The realty was mort- 
 gaged to them as trustees. Held, the right of 
 action was in them. Barnes «. Union Mut. 
 Fire Ins. Co., 45 N. H., 21. 
 
 no. If the mortgagor has the policy made 
 " payable to " a person described as mort- 
 gagee, the mortgagee may ratify the act, and 
 bring the action in his own name; and bring- 
 ing the action ratifies the act. Motley v. Man- 
 ufacturers' In*. Co., 29 Me., 337. 
 
 21. The policy was assigned, the company 
 ratified the assignment, and the assignee gave 
 a new premium note for the premium. Held, 
 the assignee could maintain the action in his 
 own name. Stimpson v. Monmouth Mut. Fire 
 Im. Co., 47 Me., 379. 
 
 22. An assignment of the policy, after a loss 
 has occurred, passes the whole interest; and 
 
 the assignee can maintain an action on it in 
 his own name, under the statute of 1828, or 
 under the code. Perry o. Merchants Ins. Co., 
 25 Ala., 355. 
 
 2i{. Policy upon the life of tlie husband for 
 the use of the wife. Held, she could main- 
 tain the action, notwithstanding there was an 
 executor. Myers «. Keystone Mut. Life Ins. 
 Co., 27 Penn. St., 268. , 
 
 24. Policy, under seal, to A. Subsequently 
 indorsed, " Loss, if any, payable to B." Held, 
 the action was well brought in the name of A. 
 (S. C. N. J.) Martin ». Franklin Fire Ins. Co., 
 5 Ins. L. J., 144. 
 
 25. Plaintiff declared upon a writing, under 
 seal, by which defendant gnaranlied to the 
 bearer the sum of $5,000 on April 30, 1834, on 
 presenting such writing at the defendant's 
 oflBce. The averments necessary to show that 
 plaintiff presented, etc., were made. Beld, 
 the plaintiff could sue on it, though he was 
 not the party to whom it was issued. (This 
 is hardly an insurance case, though against 
 an insurance company.) Bllicott «. United 
 States Ins. Co., 8 G. & J., 166. 
 
 26. Policy reinsuring the Fulton Co., for 
 which a receiver was appointed who sold the 
 effects, debts and demands of said company, 
 including this claim for reinsurance. Beld, 
 the purchaser of the claim could maintain 
 the action. Consolidated Fire Ins. Co. v. 
 Cashow, 41 Md., 59. 
 
 27. The policy covenanted to pay the bus- 
 band, his executors, administrators or assigns, 
 but the consideration was expressed as paid 
 for the use and benefit of the wife. Beld, the 
 recital in the policy made it manifest that the 
 insurance was effected by the husltaud for tlie 
 benefit of the wife ; he therefore became the 
 trustee of an express trust for her, the benefi- 
 ciary; the statute which allows a trustee to 
 sue in his own name did not preclude the 
 beneficiary from prosecuting the suit without 
 joining the trustee; as the wife was the real 
 party in interest, she had the right to bring 
 the suit, for a recovery by her would bar an- 
 other action brought by the trustee. MeComas 
 V. Covenant Mut. Life Ins. Co., 56 Mo., 573. 
 
 28. Policy of reinsurance issued to John 
 Vattier and others, for their sole use, in trust 
 for the Fraternal Mut Ins. Co., which com- 
 pany assigned their rights to the plaintiff. 
 Beld, the beneficiary, the Fraternal Mut. Ins. 
 Co., was entitled in fact to the fruits of the 
 
 31 
 
ACTION, 
 
 64 
 
 Who may or must sue. 
 
 policy, and therefore the proper party under 
 the code to sue, if. no assignment had been 
 made by it; but that the assignment divested 
 the Fraternal Mut. Ins. Oo. of all interest, and 
 cast it upon the plaintiff; hence she was the 
 proper person to sue. Lee v. Fraternal Mut. 
 Ins. Co., 1 Handy, 317. 
 
 29. Policy to Hobbs and Henley, "On 
 Block of groceries, not assignable except by 
 consent of insurer." Hobbs assigned all his 
 interest in the stock to Henley, his partner. 
 The stock was afterwards consumed by fire. 
 Held, Henley could recover for that which had 
 not been assigned by Hobbg, and for that 
 assigned, if the insurer assented to the assign- 
 ment. Hohhs ». Mempldg Int. Co., 1 Sneed, 444. 
 
 30. Policy on the life of the husband for 
 Uie benefit of the wife — stipulated: "In case 
 of the death of the wife before the decease of 
 the husband, the sum insured shall be paya- 
 ble to their children, or to their guardian if 
 linder age. Held, the action was well brought 
 in the name of a guardian ad litem; it was 
 unnecessary to have a general guardian ap- 
 pointed for the purpose. Price «. Phmnix 
 Mut. Life Ins. Co., 17 Minn., 497. 
 
 31. Policy to 8., indorsed by insurer's 
 agent, " Payable in case of loss to N., to the ex- 
 tent of his claim," who brought this suit to 
 recover the amount insured. Seld, the in- 
 dorsement had the same force and effect as if 
 made at the time the policy was made; and 
 as the pleadings showed that plaintiffs claim 
 against S. exceeded the sum insured, IT. was 
 entitled to maintain the action in his own 
 name. Hewman ■». Springfield Fire and Marine 
 Im. Co., 17 Minn., 123. 
 
 32. Policy upon the life of A., executed by 
 three trustees of the company. A. assigned 
 it to B., and died. The trustees paid the 
 loss by check on the company's bankers, and 
 the assignee acknowledged the receipt of the 
 money from the trustees. The trustees brought 
 this action to recover the money back, alleg- 
 ing that the policy was procured by fraud. 
 Held, the action was well brought in the name 
 of the trustees. Lefevre v. Boyle, 3 B. & Ad., 
 877. 
 
 33i After the loss occurred, the policy was 
 sissigned. Held, the assignee was entitled to 
 maintain the action in his own name. See 31 
 and 83, Vict, c, 88. Lloyd v. Fleming, 7 L. R. 
 Q. B., 399 ; 41 L. J., 93 ; 30 W. R., 296 ; 25 L. T. 
 (N. 8.), 24. ' 
 
 33. 
 
 34. Stipulated : " In case the policy shall 
 be assigned the directors may confirm it to 
 the assignee." Insured assigned all his inter- 
 est in the property and policy to the mortg.i- 
 gee. The debt was less than the sum insured. 
 Held, the mortgagee was entitled to maintain 
 the action in his own name. Burton v. Core 
 Bistrict Mut. Ins. Co., 14 U. C. Q. B., 342. 
 
 35. Policy to A., assigned to B., with con- 
 sent of insurer's agent, who indorsed an agree- 
 ment that the policy should stand for the ben- 
 efit of B., and entered the transaction in a 
 book kept by him, and communicated it to 
 the head office in Montreal. The secretary 
 suggested a new policy, and that the unearned 
 premium should be credited upon it. B. paid 
 an additional premium to cover increase of 
 risk. Held, the assignee could maintain the 
 action. Ross v. Commercial Union Asa. Co., 
 26 U. C. Q. B., 559. 
 
 (b) Of the principal, or an undis- 
 closed jpri/novpal, the insured a/nd 
 his personal representati/oes. 
 
 36. There was no warranty or representa- 
 tion that the property was American. Held, 
 any foreigner who had authorized the insur^ 
 ance to be made could receive the benefits of 
 it. Seamens v. Loring, 1 Mason, 127. 
 
 37. Policy on account of the owners. Held, 
 the action was properly brought in the name of 
 two persons who effected it to cover their own 
 individual interest in the adventure, notwith- 
 standing another person was interested in the 
 adventure when the voyage commenced ; that 
 as between themselves and their insurer their 
 rights could, not be affected by the acts of 
 another person interested in the subject in- 
 sured. Gatlett V. Pacific Ins. Co., 1 Wend., 561 ; 
 affirmed, 4 id., 75. 
 
 38. Where one acting as agent, although 
 without actual authority, makes a contract for 
 the benefit of another, the latter may at any 
 time afterwards, so long as the contract con- 
 tinues in force, upon being apprised of its ex- 
 istence, adopt the act of the agent, and so en- 
 title himself to all the advantages of the con- 
 tract, as fully as if it had been originally made 
 by his express authority. Stillwell v. Stacks, 
 19N.Y.,401; 5. C, 6 Duer, 63. 
 
 39. Insured mortgaged the property and 
 assigned the policy. Held, the action waa 
 
65 
 
 ACTION. 
 
 Who ma^ or must sue. 
 
 rightly brought in the name of insured. Con- 
 over o. ifut. Ins. Go., 3 Denio, 254; aflSrmed, 
 1 N. T., 290; How. App. Cas., 604. 
 
 40. Policy on the life of S., who entered 
 into copartnership with V. and M., and agreed, 
 in case of the death of S. during the continu- 
 ance of the partnership, the money secured by 
 tlie policy should become the absolute prop- 
 erly of V. and M., if S. should remain unmar- 
 ried until his death. Heid, upon the happen- 
 ing of the contingency, the right to the money 
 due upon the policy vested absolutely in V. 
 and M., and they were authorized to sue in 
 their own names. Valton v. National Loan 
 Fund Ass. Co., 20 N. Y., 32 ; S. C, 22 Barb., 9 ; 
 40 N. T. (1 Keyes), 21; 4 Abb. Dec., 437; 17 
 Abb. Prac., 268. 
 
 41. On account of whom it may concern. 
 Held, the person in whose name the contract 
 was made could maintain the action. Waiish x>. 
 Washington Ins. Co., 32 N. Y., 427; 8. C, 3 
 Bob., 202. 
 
 42. Open policy to I., D. & Co. " This pol- 
 icy to be deemed continuous, unless otherwise 
 directed by either party, thirty days notice 
 being given to the insured to enable the risks 
 to terminate, etc." Insurers sent blank certifi- 
 cates to I., D. & Co., to describe the risks 
 embraced in the policy to be reissued to per- 
 sons who should be insured. Hdd, when the 
 certificate was filled up and delivered, it be- 
 came a valid contract of insurance in favor of 
 the holder of it who could sue in his own 
 name upon it Hartshome o. Union Mut. Ins. 
 Co., 36 N. Y., 172; S. 0., 5 Bos., 588. 
 
 43. The policy in the name of the husband, 
 was returned to insurer, with a statement that 
 the property belonged to the wife, and tliat she 
 wanted the loss made payable to Mary En- 
 twistle. Insurer's secretary made the loss 
 payable as requested. Held, the contract was 
 with the wife, and the company liable for the 
 loss of the premises. Solmes v. Rutgers Fire 
 Ins. Co., 42 N. Y. (3 Keyes), 416; 8. C.,4 Abb. 
 Dec, 279; reversing S. C, 8 Bos., 578, and 5 
 Abb. Pr. (N. S.;, 201. 
 
 44. Policy to A., the owner, " On property 
 sold but not removed." Subsequently A. sold 
 it to B., holding it for him without charge, 
 and it was burned. Held, A. could maintain 
 the action as trustee for B. Waring v. Indem- 
 nUy Fire Ins. Co., 45 N. Y., 606. 
 
 45. Life policy payable to insured, his ex- 
 ecutors, administrators and assigns, two-thirds ' 
 
 3 
 
 thereof being for the express benefit of the 
 wife, and one-third for the mother. Held, the 
 representatives of the deceased were the trust- 
 ees of an express trust, and the proper parties 
 to maintain the suit within the meaning of 
 sec. 113 of the code. Greenfieldv. Massachusetts 
 Mut. Lift Ins. Co., 47 N. Y., 430. And the 
 beneficiaries being made parties defendant, 
 upon insurer's, motion they are estopped to 
 object that the joinder was improper. IHd. 
 
 46. Policy to B. " On account of F., or 
 whomsoever it may concern." B. broughtthe 
 action in his own name, alleging the interest 
 in P, and C. Held, the action could be main- 
 tained, the principal having ratified the act of 
 B. Bridge v. Niagara Ins. Co., 1 Hall (K. 
 Y.), 247. 
 
 47. The trustees of an asylum, in pursuance 
 of an act of the legislature, conveyed the 
 property to The People, and the defendant in- 
 sured it. Held, the people could maintain the 
 action for a loss. The People «. Liverpool, Lon- 
 don and Globe Ins. Co., 2 N. Y. (S. C), 268. 
 
 48. Policy to R. assigned by him to P., who 
 assigned it to plaintiff. The complaint did 
 not show that either P. or the plaintiff had any 
 interest in the property. The action was 
 brought in the name of the insured and the 
 last assignee. Held, R. could maintain the 
 action, but it must be dismissed as to the last 
 assignee (under the code, judgment may be 
 given for or against one or more of several 
 plaintifis). Peitbody v. Washington County Mut. 
 Ins. Co., 20 Barb., 339. 
 
 49. Policy to A., " Loss, if any, payable to 
 W., L., B., and the insured, as their interest 
 shall appear." Held, the action was well 
 brought in the name of the insured, and no 
 valid objection could be made for the want of 
 parties; it will be presumed the others have 
 no interest in it. Owens v. Farmers' Joint 
 Stock Ins. Co., 57 Barb., 518; 10 Abb. Pr. (N. 
 S.), 166 n. 
 
 50. On account of whom it may concern. 
 Held, the person to whom the policy was 
 issued could maintain an action upon it, for 
 (he benefit of all persons interested. Sturm v. 
 Atlantic Mut. Int. Co., 6 J. & Sp. (N. Y.), 281. 
 
 51. "On ship for whom it might concern." 
 Insured averred in the declaration that it was 
 made for himself and I. S. in certain propor- 
 tions. Held, the action was well brought by 
 the insured alone. Ward v. Wood, 13 Mass., 539. 
 
 52. On ship to C. and L. for the owners, 
 
 33 
 
67 
 
 ACTION. 
 
 68 
 
 Who may or must sue. 
 
 payable to C. and L. Held, the suit was well 
 brought in the name of the owner with the 
 consent of C. and L. Fa/rrow «. Commonwealth 
 Ins. Co., 18 Pick., 53. 
 
 53. Owner had the property insured and 
 assigned policy to purchaser, with insurer's 
 assent. Purchaser reconveyed by mortgage 
 to the insured, and reassigned the policy to 
 him with insurer's consent, "To hold as col- 
 lateral security for the performance of condi- 
 
 • tions of mortgage." Held, the original in- 
 sured could sue in his own name. Kingsley 
 •B. Neu) England Mut. Fire Ina. Co., 8 Gush., 393. 
 
 54. Loss, if any, payable to L. to the extent 
 of $400. Held, the action could be maintained 
 
 .in the name of insured with the consent of L. 
 Jackson n. Farmers' Mut. Fire Ins, Co., 5 
 Gray, 52. 
 
 55. A mutual company made the policy to 
 A. "for account of whom it might concern." 
 The act of incorporation did not limit the 
 corporation to insurances for persons in inter- 
 est. Held, the owners, for whose benefit the 
 contract was made, could adopt it as their 
 own and sue upon it in their own names. 
 Cobb V. Neu> England Mut. Marine Ins. Co., 
 6 Gray, 192. 
 
 56. A. and B. owned certain realty as co- 
 partners. A. died. Held, B. could maintain 
 the action in his own name upon a policy 
 made to A. and B. Oakman v. Dorchester Ins. 
 Co., 98 Mass., 57. 
 
 57. Policy to T., "Loss, if any, payable to 
 B., as mortgagee." The action was brought 
 in the name of T., with the assent of B. 
 Held, it could be maintained in his name. 
 Turner v. Quiney Ins. Co., 109 Mass., 568. 
 
 58. Policy to a trustee for the benefit of the 
 daughters of the insured. Held, the daughters 
 could maintain the action in their own name. 
 Hillya/rd v. Mut. Benefit Life Ins. Co., 85 N. J., 
 415. 
 
 59. Policy to A., indorsed: "Loss if any, 
 payable to V., as mortgagee." A. brought the 
 action. Held, he could maintain it. S. C. of 
 N. J. Martin v. Franklin Fire Ins. Co., 15 
 Amer. Law Reg., N. S., 229. 
 
 60. Policy on ship to three persons, but 
 only two were owners. Held, sufficient to 
 maintain the action. BulkUy v. Derby Fish- 
 ing Co., 1 Conn., 571. 
 
 61. Mortgagors can maintain the action 
 though the policy be made payable to the 
 mortgagee if it appears that the mortgagees 
 
 34 
 
 have consented to the bringing of the action. 
 Patte^'son d. Triumph Ins. Co., 64 Me., 500. 
 
 62. A sealed policy in favor of a person 
 named *' and as well in his own name as for and 
 in the name and names of all and every other 
 person and persons to whom the property in- 
 snred does, may or shall appertain," must be 
 sued in the name of the covenantee. DeBolle 
 V. PenTisyhania Ins. Co., 4 Wharton, 68 ; Amer- 
 ican Ins. Go. «. Insley, 7 Penn. St., 223. 
 
 63. The consignor may maintain the ac- 
 tion, it being left to the jury to say whether he 
 or the consignee was the owner. Fleming o. 
 Ins. Co., 12 Penn. St., 391. 
 
 64. A sealed policy declared that W. and H. 
 for account of T. G., did make insurance and 
 caused themselves and each of them to be in- 
 sured, etc. Held, the action was well brought 
 in the name of T. G. Maryland Ins. Co. v. 
 Graham, 3 H. & J., 62. 
 
 65. After loss, the assignee of the claim has 
 the right to institute and prosecute the suit in 
 the name of the assignor, and without any 
 other authority than that implied in the as- 
 signment; the assignment being coupled with 
 an interest cannot be revoked, and although 
 the policy states that in case of loss it shall 
 be payable to a person named, the action js 
 properly brought in the name of the insured. 
 Nevins v. Rockingham Mut. Fire Ins. Co., 25 
 N. H., 23. 
 
 66. The agent of a disclosed principal re- 
 quested insurance upon the property of his 
 principal. The policy recited the fact of his 
 agency, that he had become a member of the 
 insurance company, and insured him, his suc- 
 cessors and assigns, on the building and fixed 
 machinery of his principal. Held, the action 
 was rightly brought in his name. GoodaU v. 
 New England Mut Fire Ins. Co., 25 N. H., 
 169. 
 
 67. The property had been sold to W., of 
 which the defendants had notice. W. mort- 
 gaged it back. Held, the right to sue in the 
 name of the plaintiff was not affected by the 
 transfer. Sanders v. Hillsborough Ins. Co., 44 
 N. H., 288. 
 
 68. R. & Co. sold goods to P., on a credit 
 of four months, consigned to G. M. & Co. 
 Their agent made insurance in his name for 
 account of G. M. & Co. The agent in behalf 
 of his principals agreed to take a half interest 
 in the adventure, the purchase money to be 
 paid by a promissory note to mature when 
 
69 
 
 ACTION. 
 
 70 
 
 Who may or must sue. 
 
 the purchaser's debt for the goods should be- 
 come due. He assigned tlie policy, but the 
 note was never executed, G-. M. & Co. became 
 insolvent and the goods were lost by perils of 
 the sea. Held, the consignee had an insurable 
 interest in the goods ; the assignment of the 
 policy by the person with whom it was made 
 was valid; the plaintiff had a right to main- 
 tain the action ; the sale of one-half the inter- 
 est in the adventure was never completed; 
 and therefore the insurer was liable for the 
 whole amount insured. Pouverin v. Louisiana 
 State Ins. Co., i Rob. (La.), 334. 
 
 69. The policy had been assigned, but the 
 assignor brought the suit 'Seld, it was proper 
 to receive parol testimony to show that the 
 purposes of the assignment had been satisfied. 
 Summers v. United States Ins. and Trust Go., 
 13 La. An., 504. 
 
 70. Insurers made a policy to W. & Co., for 
 whom it might concern, it being understood 
 between the parties that W. & Co. should act 
 as agents fqr insurers. L. & Co., forwarding 
 merchants, applied to W. & Co. for insurance 
 upon property which they were forwarding to 
 K. & R., which was granted and indorsed 
 upon tbe policy by W. & Co. Seld, the suit 
 was well brought in the name of W. & Co., 
 for the use of K. & R. Protection Ins. Co. v. 
 Wilson, 6 Ohio St., 553. 
 
 71. Policy to a mortgagor: " Loss, if any, 
 to be paid to McClellan, mortgagee." ffeld, 
 the contract was with the mortgagor, and the 
 action properly brought in his name for the 
 use of the beneficiary. Illinois Fire Ins. Co. 
 V. Stanton, 57 111., 354. 
 
 78. A religious corporation may maintain 
 an action in its own name. Rev. Stat. 1874, p. 
 292, sees. 35 and 41 (111., S. C.) Mremen's 
 Fund Ins. Co. v. Congregation of Bodeph Sho- 
 lem, 8 Chi. Leg. News, 178. 
 
 73. Note executed payable to A. B., agent 
 of the Enterprise Ins. Co. The consideration 
 of the not« was the contract to insure the 
 maker of it. Held, the insurance company 
 was the proper party to sue on it Black v. 
 Enterprise Ins. Co., 33 Ind., 233. 
 
 74. The insurer contracted to make the loss 
 good to insui-ed, his executors, administrators, 
 etc., and insured died before the contract 
 ripened into a claim. Held, the action was 
 properly brought in the name of his adminis- 
 tratrix. Qermanialns. Co. v. Curran, 8 Kan., 9. 
 
 75. C. claimed of insurers the benefit of an 
 
 oral agreement to insure tobacco owned and 
 held by him in store. He settled with insurers, 
 and receipted " without prejudice to the claims 
 of other persons for whom I hold property in 
 store." Held, the plaintiff's who were owners 
 of some of the property in store, could sue 
 without joining him, for he was to be regarded 
 as if he had been a mere nominal party from 
 the beginning. Strohn o. Hartford Fire Ins. 
 Co., 33 Wis., 648. 
 
 76. Policy to H. S. & L. & Co. "Loss, if 
 any, payable to S., as his interest may appear." 
 Held, the action could be maintained by the 
 insured, the rights of insured were not de- 
 pendent on his having an insurable interest 
 in the property, hence no proof in respect to 
 his. interest was necessary. Clay Fire & Mor- 
 rine Ins. Co. v. Huron Salt & Lamber Co., 31 
 Mich., 346. 
 
 77. J. S. insured for himself and those who 
 should have goods upon the ship ; and A. B. 
 brought an action against him with an aver- 
 ment that he had goods upon the ship. Held, 
 the action was well brought. Anon. Skin., 327. 
 
 78. ToJMark Healy, "on account of whom 
 it concerns, loss payable to his order." He 
 was the owner of the ship which was at Bre. 
 men. A. advanced $23,000 in specie and four 
 boxes' of opium to the master, for her to pro- 
 ceed to Sumatra, purchase cargo there, and re- 
 turn with it to Eprope, the adventure to be ori 
 the joint account of Mark and A. The cargo 
 was to be consigned to A., he paying half the 
 freight named. Mark was to make insurance 
 on ship and cargo, and deposit the policy in 
 the hands of M., the agent of A., as collateral 
 security for his half the purchase cost of cargo. 
 Mark made insurance on cargo and freight, 
 but by mistake failed to make any on the ship. 
 The policy prohibited an assignment of it 
 without previous consent in writing. Held-, 
 A. could maintain an action on the policy in 
 his own name, for the terms distinctly ap- 
 prised the insurer that Mark intended to 
 secure by the policy any interests of others as 
 well as his own (citing Farron o. Common- 
 wealth Ins. Co., 18 Pick., 53 ; Jefferson Ins. 
 Co.*. Cotheal, 7 Wend., 73; Cooke v. Batch- 
 elor, 3 Bos. & Pul., 149; Sargent u. Morris, 3 
 Barn., & Aid., 277 ; Hurlburt v. Pacific Ins. 
 Co., 2 Sumn., 471). Aldrich v. Equitable Safety 
 /ns. Co., 1 W. & M., 273. 
 
 79. The life of T. S. was insured, and after 
 his death, letters testamentary were granted at 
 
 35 
 
n 
 
 ACnON. 
 
 72 
 
 Who may or must sue. 
 
 Exeter, where he died. The defendants were 
 commorant and resident in London, and all 
 the funds of the company were located, situ- 
 ated, and fixed in London. Held, the execu- 
 tors under the Exeter probate could recover 
 under the policy. Chirney v. Bawlins, 6 L. J. 
 (N. S.) Ex., 7 ; 2 Mee. & W., 87. 
 
 80. The consignees of goods pledged the 
 ■bills of lading as security for certain bills of 
 exchange by the pledgee accepted for the ac- 
 commodation of the consignees, and the pol- 
 icy, made in the name of the consignee, was 
 deposited with the pledgee, who brought suit 
 in his own name. Held, he could maintain 
 the action. Sutherland v. Pratt, 13 Mee. & 
 W., 16; 13 L. J. Ex., 246; 7 Jur., 361. 
 
 81. The defendant pleaded the bankruptcy 
 of the plaintiff before action brought. Rep- 
 lication, transfer of goods, and an assign- 
 ment of policy to r. before bankruptcy, with 
 an averment that plaintiff sued as trustee for 
 F. Rejoinder that the goods were landed, and 
 the right to the return premium was not trans- 
 ferred before bankruptcy. Held, bad upon de- 
 nurrer, because the plaintiff was entitled to 
 sue in his own name as trustee for the cause 
 of action in which he had no beneficial inter- 
 est at the time of his bankruptcy. Castelli v. 
 Boddington, 1 El. & Bl., 66; 8. C, affirmed, 
 id., 879. 
 
 82. The defendant issued a certificate to 
 Joel Leduc, " $7,000 on 1063 ban-els of flour 
 from Montreal to St. John's, Newfoundland, 
 subject to all conditions, provisions, and ex- 
 ceptions contained in the policy of the com- 
 pany, copies of which are printed upon the 
 back of this certificate." It was the custom 
 of the company to treat this as a provisional 
 receipt, to issue a policy when required, in the 
 name of the person insured, for himself and 
 for every other person or persons interested. 
 The property was deliverable under the bills 
 of lading to appellant. Leduc debited him 
 with the cost, commission, expenses, and in- 
 surance premium, transmitting to him the bills 
 of lading, and drew on him for the whole 
 amount, which draft was accepted and paid. 
 Held, an undisclosed principal may sue smA 
 be sued upon mercantile contracts made by 
 the agent in the agent's name, subject to any 
 defenses or equities which may exist against 
 .the agent; that the Code of Lower Canada did 
 not affect this right; that if this were not so, 
 the certificate must be construed with refer- 
 
 86 
 
 ence to the proved usage of insurers, which 
 entitled the insured to a policy in his own 
 name, for the benefit of others interested. 
 Broymig b. Provincial Ins. Co. of Canada, 5 
 L. R. P. C, 263; 28 L. T. (N. 8.), 853; 21 W. 
 R., 587. 
 
 83. Mortgagor made insurance, assigned 
 policy with insurer's consent to mortgagee, 
 and brought this action for the use of the 
 mortgagee. The defendant demurred on the 
 ground that plaintiff had not any interest, and 
 having none he could not sue as trustee for 
 another. Held, the demurrer must be over- 
 ruled. Richardt d. Liverpool and London Im. 
 Co., 35 U. C. Q. B., 400. 
 
 84. Insurers of a building burned by the 
 negligence of a third party paid the loss. It 
 was admitted that the value of the building 
 greatly exceeded all the insurance made upon 
 it. The insured brought an action against the 
 wrong doer, and the insurers sought to restrain 
 him from compromising with the wrong doer, 
 or controlling the action. Held, insured was 
 entitled to be master of the action, and to 
 compromise it bona fide. Commercial Union 
 Asa. Co. V. Lister, 9 L. R. Ch., 483; 43 L.J. 
 Ch., 601. 
 
 85. The policy provided that the loss, if 
 any, shall be paid to the order of a person 
 other than the insured. Held, it did not pre- 
 clude the insured from maintaining the action 
 in his own name; nor was it necessary in 
 order to maintain it, to aver an order to pay it 
 to the insured. Ketchum v. Protection Ins. Co., 
 1 Allen (N. B), 136. 
 
 (c) WTw may join. 
 
 86. H. and C. were partners, and kept their 
 consignments of grain in an elevator which 
 belonged to a railroad company, whose ser- 
 vants had entire charge and care of it. H. 
 retired from the firm July, 1867, but no notice 
 of the dissolution was published. C. was to 
 be allowed to carry on the business in the 
 partnership name until the end of the year, 
 and this policy was written in the name of H. 
 and C. on grain, their own or held by them in 
 trust or on commission or sold and not deliv- 
 ered. Held, H. was a nominal partner, held 
 ont to the world by his own consent, as a 
 member of the firm of H. and C. ; that while 
 it is true a nominal partner is only adversely 
 held such to subject him to liability, and not 
 
73 
 
 ACTION. 
 
 74 
 
 Who cannot sue. 
 
 for the purpose of giving him the benefits 
 and advantages of a partner, yet his liability 
 as such entities him in the absence of any at- 
 tempt to defraud, to join with the other mem- 
 bers of the firm in efiecting insurance on the 
 property of the concern; that it does not al- 
 ■waj's require either the legal or beneficial in- 
 terest in the property to entitle a party other- 
 wise connected with it to effect a valid insur- 
 ance upon it; and in the case of a nominal 
 partnership, the legal interest of the business 
 is in the firm, while the beneficial interest is 
 in the member or members for whose use it is 
 carried on; hence the action was rightly 
 brought in the name of the firm. PJicenix 
 Ina. Co. V. Hamilton, 14 Wall., 504. 
 
 87. Where the policy is assigned as collat- 
 eral, with the consent of the insurer, the as- 
 signor and assignee may sue jointly under 
 the New York code. Boynton o. Clinton and 
 Essex Mut. Ins. Co., 16 Barb., 254. 
 
 88. The plaintiff alleged an oral contract, 
 to insure him for the benefit of himself and 
 others, who might have tobacco in store and 
 to be stored in his warehouse, and he averred: 
 " That the defendjmt agreed to execute and de- 
 liver an open policy of insurance to cover his 
 interest and that of all persons having tobacco 
 in store in his warehouse, in the usual form 
 of policies being made by defendants at that 
 time, to add to or to take from the amounts in- 
 sured, as said stock should increase or dimin- 
 ish, at the option of plaintiff or other par- 
 ties interested." Held, insured and all the 
 other parties interested could maintain an ac- 
 tion in their joint names. Strohn v. Hartford 
 Fire Ins. Co., 33 Wis., 648. 
 
 89. A sealed policy to Kearney, " .as owner, 
 agent, or otherwise." Held, it was a covenant 
 to pay the persons who were interested in that 
 subject matter and ft)r whom the policy was 
 effected — a designation which could not be 
 mistaken — which was as good as the actual 
 name of the individual ; and therefore the 
 covenantee as well as the person for whose 
 benefit the policy was procured, might join in 
 an action of debt. Sunderland Marine Ins. 
 Co. n. Kearney, 16 Q. B., 935; 20 L. J. Q. B., 
 417; 15 Jur., 1006. 
 
 90. By the rules of a shipping insurance 
 club, its affairs were to be managed by the 
 members, assisted by the secretary and treas- 
 urer. A finance committee were to sign 
 all checks and see that the funds were duly 
 
 appropriated. The plaintiff sued seven of 
 tlie members, the secretary and treasurer, for 
 the loss of his sliip, there being no finance 
 committee-. Held, not an improper joinder. 
 Bromley v. Williams, 82 Beav., 177; 33 L. J. 
 Ch., 716; 11 W. R., 393; 8 L. T. (N. S.), 78. 
 
 (d) Who need not join or he joined. 
 
 91. S. was indebted to N., $5,000, February 
 1, 1870. He agreed to mortgage certain prop- 
 erty to secure the debt, but by mistake of the 
 scrivener the description in the mortgage was 
 not that of the property intended. A policy 
 was made, and by its terms was made payable 
 in case of loss to N., to the extent of his 
 claim. This action was brought to reform 
 the mortgage. Held, insurers were not a 
 necessary party to the action, for they had no 
 interest in the matter. Newman v. Home Ins. 
 Co., 20 Minn., 422. 
 
 92. The trustees of the company, not inter- 
 ested in the profits, liable to be sued alone in 
 an action on the policy, were made sole 
 plaintiffs in this bill, brought against third 
 persons, praying that a certain policy should 
 be delivered up and cancelled. The share- 
 holders of the company, so far as known, 
 were made party defendants, and as to other 
 shareholders, it was alleged their names could 
 not be ascertained. Held, in equity it is suflS- 
 ciont that all persons interested in the subject 
 of the suit should be before the court, either 
 as plaintiffs or defendants, that the sharehold- 
 ers might be made either plaintiffs or defend- 
 ants; and as to persons whose names were 
 unknown, the plaintiffs were not bound to do 
 that which was Impossible; that is, to bring 
 unknown persons before the court. Fenn «. 
 Craig, 3 Yon. & Coll., 216. 
 
 YII. "Who cannot sue. 
 
 1. Two persons were insured jointly; the 
 action was brought in their joint names. One 
 of them had no interest in the loss. Held, the 
 action could not be maintained. Mwdodc «. 
 Chenango County Mutual Fire Ins. Co., 2 N. Y., 
 210. 
 
 2. The assignee of the policy cannot main- 
 tain the action in his own name. Jessel v. 
 Williamaburgh Ins. Co., 3 Hill, 88. 
 
 3. The assignee of a chose in action cannot 
 sue in chancery in the name of his assignor; 
 
 37 
 
75 
 
 ACTION. 
 
 76 
 
 Who cannot sue. 
 
 the suit must be brought in the name of the 
 real party in interest. Rogers «. Traders Ins. 
 Co., 6 Paige Ch., 583. 
 
 4. Policy provided: "If the property in- 
 sured shall be alienated by sale or otherwise, 
 the policy shall be void; but the alienee hav- 
 ing the policy assigned to him, may have it 
 confirmed to his use, upon application to the 
 directors, vfith their consent, within thirty 
 days next after alienation." Meld, the condi- 
 tion having been observed, the assignor could 
 not maintain an action on it ; that it became 
 an obligation directly to the assignee himself, 
 and he alone must sue on it. Mann v. Herki- 
 mer County Mut. Ins. Co., 4 Hill, 187. 
 
 5. The A. Mut. Ins. Co., of A., issued to 
 plaintiflFs their policy, also other policies to 
 other persons, nineteen in all. While these 
 policies were in force, the Com. Fire and Ma- 
 rine Ins. Co. agreed to reinsure the former 
 upon all the policies issued, " Loss, if any, 
 payable to the assured, upon the same terms 
 and conditions, and for the same time stated 
 in the several original policies." Held, the 
 word " assured," in the contract, meant the 
 party reinsured, and not the plaintifiTs ; hence 
 they had no right to maintain the action upon 
 the contract. Carrington v. Commercial Fire 
 and Marine Ins. Co., 1 Bos., 153. 
 
 6. Policy " for the sole and separate use of 
 his three children named, to be paid to the 
 said insured, their executors, administrators 
 or assigns." The insured devised the policy, 
 and his executors brought this action. Held, 
 they could not maintain the action, for the 
 children were entitled to the fund in question. 
 Buppert 7). Union Mutual Life Ins. Co., 7 Rob. 
 (N. T.), 155. 
 
 7. One who procures insurance in his own 
 name for another, or for account of whom it 
 may concern, cannot maintain an action in 
 his own name upon the policy, if his author- 
 ity is disavowed or revoked before action is 
 brought, unless the policy authorizes him to 
 sue, or he has a lien or other interest which 
 the other party cannot defeat. Meed v. Pacific 
 Ins. Co., 1 Met. 166. 
 
 ' 8. A policy was made to insure Austin & 
 Co. There was no such firm, it having been 
 dissolved by the death of one partner. Held, 
 the heif of the deceased partner could not join 
 the surviving partner in an action upon the 
 policy. Woi'k v. MercJiants and Farmers Mu- 
 tual Fire, Ins. Co., 11 Cush., 271. 
 38 
 
 9. Policy to M. & J. on their stock of tools. 
 After it was made, and before the property 
 was injured, J. conveyed all his interest in 
 the property to M., and the suit was brought 
 by M. in his own name. Held, he could not 
 maintain the action in his own name alone, 
 without showing that insurer had notice of 
 the transfer, and consented to an assignment. 
 Tate v. Ciiisens Mutual Fire Ins. Co., 13 Gray, 
 79. 
 
 10. Action by P. upon a policy, under seal, 
 on the life of R. The application was signed 
 by R. for P. The original premium was paid 
 by P. for R., and P. paid all the other premi- 
 ums; but the promise and agreement was 
 made to and with R. and his representatives, 
 and stipulated that the insurer would pay the 
 sum insured to P. and his representatives. 
 Held, that R., and not P., was the covenantee; 
 hence, the action was not well brought in the 
 name of P. Flynn b. North America Life 
 Ins. Co.y 1 15 Mass., 449. 
 
 11. An assignment of a policy of insurance 
 does not pass the right of action to the as- 
 signee; at law, the suit must not be in the 
 name of the assignee, unless that is authorized 
 by statute. Gourdon v. Insurance Co. of North 
 America, 3 Yeates, 327. 
 
 12. Policy to 8. upon certain property de- 
 scribed as his; loss, if any, payable to W. 
 Held, W. was a mere appointee, and that 
 the action brought in W.'s name could not be 
 maintained, and evidence tending to show 
 that it was the intention of the parties to in- 
 sure W. was not admissible, for it was a con- 
 tract with S., and not one with W. ; nor was 
 the ruling in conflict with the case of Peck v. 
 New London Ins. Co., 22 Conn., 575. Wood- 
 bury Savings Bank v. Cha/rter Oak Ins. Co., 39 
 Conn., 374. 
 
 13. B. applied and obtained insurance on 
 his stock July 5th. He mortgaged it August 
 11th, and assigned the policy to the mort- 
 gagee, indorsing the assignment on the 
 policy, to which the insurers assented. But 
 the charter provided, " Whenever the property 
 shall be alienated, by sale or otherwise, the 
 policy shall be void; but it may be surren- 
 dered to the directors, who may assent to 
 the assignment, and ratify and confirm it for 
 the assignee." Two of the directors signed 
 the company's consent to the assignment, but 
 the charter provided, " The board of directors 
 shall consist of not less than five members, a 
 
7T 
 
 ACTION. 
 
 78 
 
 Who cannot sue. 
 
 majority to constitute a quorum." Held, 
 the mortgage was not an alienation of the 
 property.; that the assignee of the policy did 
 not become a member of the company, hence, 
 the suit was improperly brought in his name. 
 FoU&m V. Belknap Gountff Mutual Fire Ins. 
 Co., 30 N. H., 231. 
 
 14. Policy to Gr.; loss, if any, payable to B. 
 Held, the action could not be maintained in 
 the name of B. Blanchard i>. AtlaiUie Mutual 
 Fire In*. Go., 33 N. H., 9 ; New Hampshire 
 Savings Bank e. Union Mutual Fire Ins. Co., 
 88 id., 232. 
 
 1 5. The assignees of a policy brought this 
 action in their own names. They were mort- 
 gagees of the premises insured, and held the 
 assignment with the insurers' assent. Held, a 
 demurrer to the declaration must be sustained. 
 Flanagan v. Camden Mut. Ins. Co., 25 N. J., 
 506. 
 
 16. Covenant, The policy had been as- 
 signed to plaintiff as collateral security, but 
 the assignment was not under seal; there had 
 been no transfer or assignment of the property 
 insured. Held, assignee could not maintain 
 the action, because the original contract was 
 its foundation. Bayles e. HilUborough Ins. 
 Co., 27 N. J., 168. 
 
 17. Four persons procured insurance to be 
 made to them jointly. The suit was brought 
 in the name of one. Held, one could not main- 
 tain the action. Blanehard v. Dyer, 21 Me., 
 111. 
 
 1 8. L. made insurance in his own name, 
 and subsequently sold one-half of the property 
 to P., and formed a copartnership with him, 
 in the name of L. & C!o. The policy eirpired 
 by its own terms, and was continued for a 
 term of three years for L. & Co. Held, the 
 contract was with L. and P., for that which 
 was made with L. alone had, by its own terms, 
 ceased to exist. Laneey v. Phoenix Ins. Co., 56 
 Me., 563. 
 
 1 9. Policy to W. and L., for $900, on their 
 mortgage interest in a boarding house. It 
 was subsequently renewed for $600 in favor of 
 Stewart & Scroggs, to whom the policy had 
 been, by insurer's consent, assigned, and who 
 
 ' were the assignees of the mortgage. Held, the 
 action was properly brought in the name of 
 W. & L., for the use of the assignees. It is 
 not true that the insured must, in every case, 
 have an interest in the property at the time of 
 the loss ; the assignee could not maintain the 
 
 action in his own name, unless authorized by 
 the act incorporating tlie insurance company, 
 or by the general law (citing Granger «. 
 Howard Ins. Co., 5 Wend., 200). JVew England 
 Fire and Marine Ins. Go. v. Wetmore, 32 111., 231 . 
 
 20. It was alleged that the property insured 
 had been burned by the negligence of the de- 
 fendants, who were in possession of, and using 
 the Logansport, Peoria & Burlington Kailroad. 
 The insurers paid the claim for the loss, and 
 brought this action in their own name. Held, 
 the insurers could not recover in their own 
 name. Peoria Fire and Marine Ins. Co. v. 
 Frost, 37 111., 333. 
 
 21. Action for an assessment upon a premi 
 um note. The company had become insolv- 
 ent and a receiver appointed, who brought the 
 action. Held, he could not maintain it unless 
 authorized by the statute, or by an order of the 
 court from which he received his appointment ; 
 and in the absence of proof of these, the action 
 must be brought in the name of the corpora- 
 tion (citing, Teager v. Wallace, 44 Penn. St., 
 294; Newell «. Fisher, 24 Miss., 392; Kerr on 
 Receivers, 392). Manlove v. Burger, 38 Ind., 21 1. 
 
 22. A policy to A. stipulated: "This 
 policy will cover any other shipment only 
 when specially applied for and accepted by 
 indorsement hereon." A. made a shipment of 
 goods, the property of E., from St. Louis to 
 Council Bluffs, and insurer indorsed the risk 
 upon the policy. Held, an insurance made by 
 a person in his own name, without indicating 
 in the policy that another is interested, cannot 
 be applied to cover any interest but that of the 
 person insured. As this action was not insti- 
 tuted by the person in whose name the con- 
 tract was made, it could not be ascertained 
 whether the person insured had such an inter- 
 est in the goods as would enable him to main- 
 tain an action for their loss. Wise v. St. Louis 
 Mut. Ins. Co., 23 Mo., 80. 
 
 2i). The petition set forth the execution 
 and delivery of an open policy to insure 
 " John Bond, in such sums as might be speci- 
 fied by application, mutually agreed upon, 
 and indorsed upon said policy, against all 
 perils of the river, etc." Insurers indorsed a 
 risk, and made the loss payable to the plaint- 
 iffs. Held, the plaintiffs could not recover 
 without averring and proving, that this insur- 
 ance was made to cover the interests of the 
 plaintiffs. Oraham v. Fireman's Ins. Co., 2 
 Disney, 255. 
 
79 
 
 ACTION. 
 
 8a 
 
 When premature. 
 
 24. Insurer cannot maintain an action 
 against the ■wrongdoer in his own name, 
 though he has paid the loss. London Axi. 
 Co. v. Sainabury, 3 Doug., 345. 
 
 25. Policy in the name of Elizabetli Marsh 
 and son. Action in the name of the son only. 
 Averment, the plaintiff was solely interested. 
 Held, proof of a sole interest could not be 
 given. Marsh v. Robinson, 4 Esp., 98. 
 
 26. The insured procured the broker to 
 effect policies to himself, the premiums of 
 which were to cover a balance due from the 
 broker to the insured, and the premiums were 
 credited in account. The policies were de- 
 posited with the insured to enable him to 
 procure payment of losses. Held, the insured 
 was a party to the contract, otherwise, he 
 could not sue on the loss. The case was com- 
 promised. Maiior V. Simeon, 3 Taunt., 497 n. 
 
 27. Two persons purchased a ship. She 
 was registered in their names. Two others 
 became part owners in her, but there was no 
 transfer to them. Her freight was insured at 
 £5,000 valued, in the names of three of the 
 part owners. Held, the four had not such a 
 legal title to the ship as would enable them 
 to maintain an action for the loss of freight. 
 Camden v. Anderson, 5 Term, 709 ; 6 id., 723. 
 
 28. The action was brought to recover con- 
 tributions in the name of the manager of a 
 mutual insurance association, who signed in 
 behalf of the members. Held, on demurrer, 
 the manager had no authority to sue, for an 
 incorporated company could not authorize 
 its manager to sue; that the consideration 
 did not pass between the manager and the 
 person insured, therefore, the demurrer must 
 be sustained. Evans v. Hooper, 1 Q. B. D., 45. 
 
 29. The assignee of a policy of insurance 
 cannot maintain an action in his own name, 
 although the agreement is to pay insured and 
 his assigns. Beemer v. Anchor Ina. Co., 16 U. 
 C. Q. B., 485. 
 
 .SO. On freight insured to the master who 
 wns also part owner. " Loss, if any, payable 
 to A., who had advanced cash to the master 
 against the freight." Held, A. could not main- 
 tain the action in his own name. Orehwrd s. 
 ^tna Ins. Co., 5 U. C. C. P. 445. 
 
 VIII. When peematiteb. 
 
 1. Stipulated : " The loss shall be paid three 
 40 
 
 months after proof thereof is made." Held,\iie 
 commencement of, a suit before that time 
 elapsed was premature. Chamberlain v. Mo- 
 Call, 2 Yeates, 381 ; 2 Dall., 280 ; 3 id., 477. 
 
 2. By the terms of the policy, the insurer 
 was to have notice of an average loss, sixty 
 days before he should be liable to pay it. 
 Held, an action brought within sixty days 
 was premature. Bryant v. Commonwealth Ins. 
 Co., 6 Pick., 131. 
 
 3. January 20, 1858, the proofs were pre- 
 sented, which were additional to those fur- 
 nished November 19, 1856. Held, if the defects 
 in those furnished November 19, 1856, were 
 not waived, then the action was prematurely 
 brought Januaiy 23, 1858. Kimball v. Hamil- 
 ton, Fire Ins. Co., 8 Bos., 495. And if the com- 
 pany upon receiving the first proofs warned 
 the insured that they were not proofs, that he 
 must look to their sufficiency himself, then 
 there is no evidence of waiver. Ibid. 
 
 4. Stipulated : " Said loss or damage to be 
 paid within sixty days atler due notice and 
 proof thereof, in conformity to the conditions 
 annexed to this policy." At the time the 
 writ was served no preliminary proof had 
 been made, but it was subsequently done. 
 Held, insured could not recover. Danis v. 
 Ba/eis, 49 Me., 282. 
 
 5. The plaintiff commenced his action be- 
 fore sixty days had elapsed from the time he 
 delivered his preliminary proofs of loss. The 
 policy stipulated, that the loss should not be 
 payable until sixty days after delivery of 
 preliminary proof. Held, he must submit to 
 a nonsuit, for the action was premature. Hal- 
 ton v. Provincial Ins. Co., 7 U. C. C. P., 555. 
 
 6. Stipulated : " The capital stock, and other 
 securities, funds and property of the com- 
 pany, shall alone be liable to answer, and 
 make good all claims and demands upon the 
 company, and no director, officer or share- 
 holder shall be individually or personally 
 liable." The directors dissolved the com- 
 pany and transferred its shares and property ; 
 to another, who were to assume their lia-' 
 bilities. The insured brought this action' 
 against his insurers, charging them with a' 
 wrongful transfer and alienation of the property 
 •whereby he lost his money, profits, etc. Held, 
 until the event happens by which the money 
 becomes payable under the contract, no action 
 would lie; for it does not follow that when the 
 money shall be due it will not be paid. King 
 
81 
 
 ACrnON— AD DAMNUM. 
 
 82 
 
 When not piematuie — Separate causes of. 
 
 0. AccamtUatiM Life H^ind Go., 3 0. B. (N. S.), 
 151; «. C, 3 Jur. (N. S.) 1364. 
 
 IX. When not peematuke. 
 
 1. Stipulated: "The claim shall not be 
 payable until sixty days after due notice and 
 proof of loss." Insured presented proofe, 
 March 13th, and on the 22d following, sub- 
 mitted to an examination under oath. This 
 action was commenced May 16th. Held, tlie 
 right to sue accrued sixty days from March 
 13th. The insurer could not extend indefi- 
 nitely the time of payment by requiring in- 
 sured to submit to an examination. Such- 
 berger «. Some Int. Go., 5 Bissell, 106. 
 
 8. The libellant had not paid the loss at 
 the time the libel was filed against the wrong- 
 doer. Held, the company's liability to pay 
 the loss conferred an equitable right to what- 
 ever might remain of the property iitjured, 
 and the abandonment takes efiect by relation 
 (citing, The brig Ann C. Pratt, 1 Curtis, 340). 
 The owner and insurer, in respect to the 
 property insured, are to be considered as one 
 person. The Manittee, 5 Bissell, 3S1. 
 
 3. On goods, " Loss to be paid within thirty 
 days after proof thereof." Held, the right of 
 action acci-ued thirty days after the master's 
 protest, the usual form of bill of lading and in- 
 voice were presented to insurer. Lenox v. 
 United Ins. Go., 3 Johns. C, 334. 
 
 4. Insured furnished bills of purchases 
 AprU 3, 1871, butrefused to show what property 
 was and what was not inventoried by the gov- 
 ernment of the United States. Demand for it 
 was made July 20, 1871. and refbsal given 
 the following day. This action was com- 
 menced four days thereafter. Held, insurers 
 must promptly make their olyections to prooA ; 
 they canuot be permitted to remain silent until 
 the loss is due, and then raise objections, for 
 that would be allowing them to escape pay- 
 ment, by taking advantage of their own wrong 
 (citing Peacock o. New York Ins. C!o.,l Bos.,. 
 838). Jonet v. Meehanies Fire Int. Go., 36 N. 
 J., 29. 
 
 5. The insurers had the right to determine 
 within thirty days whether they would re- 
 build, and the loss was payable within sixty 
 days after proof made. The suits were brought 
 within ninety days after loss. Held, they were 
 not prematurely brought. Insurance Go. of 
 iTorth America r. McDowell, 50111., 120. ' 
 
 6. If the insurer peremptorily refuses to pay 
 the claim, the insured is not bound to wait 
 sixty days before commencing suit. uStna 
 Ins. Go. V. Maguire, 51 111., 342. 
 
 7. The preliminary proofs of loss were flir- 
 nished May llth (loss payable sixty days 
 after proof of loss), and sometime thereafter 
 insured was required to submit, under the 
 terms of the policy, to a personal examination. 
 The suit was commenced August 23d, follow- 
 ing. Held, it was not prematurely brought. 
 Winneshiek Ins. Go. ». Schwller, 60 111., 465. 
 
 8. Stipulated : " The loss shall not be pay. 
 able till sixty days after proof thereof." Proofs 
 were made January 6, 1869, and on February 
 19th, following, insurer denied all liability 
 under the policy, and refused to pay the loss 
 or any part of it, on the ground that the cir- 
 cumstances attending the fire were such as to 
 justify the refusal. Held, when the company 
 denied all liability for the loss, and refused to 
 pay it, placing its denial and refusal upon 
 grounds other than the failure to give notice, 
 or to furnish proofs, all necessity for notice 
 and proofs were waived, and it also waived 
 the right to claim the sixty days delay, for it 
 could not be permitted to deny all liability 
 under the contract, and at the same time claim 
 all the benefits of the stipulation, which pro- 
 vided for the time and mode of payment. 
 Gohb 0. Inmranee Co. of North America, 11 
 Ean.,93. 
 
 X. Sepaeate cattses of. 
 
 1. In a case where there are two separate 
 causes of action totally distinct from each 
 other, though arising upon the same instru. 
 ment, an action may be brought upon each of 
 them. Oastelli v. BoddingUm, 1 E. &B., 66; 
 8. G. affirmed, id., 879. 
 
 AD DAMNUM. 
 
 1. An action was brought in the name of 
 the owner for the use of his insurer, but the 
 declaration concluded to the damage of the 
 "insurance company." Held, a declaration 
 without an ad damnum, under which nothing 
 but nominal damages can be recovered. But 
 plaintiff was allowed to amend. Weber v. 
 Morris & Essex iS. S., 35 N. J., 409. 
 
 41 
 
83 
 
 ADJACENT BUILDINGS. 
 
 84 
 
 When they must be disclosed. 
 
 ADJACENT BUILDINGS. 
 
 (See Afflicatiok ; Sstoppel ; Prtsciph, and Aqsnt ; 
 Ebpbesehtatioms.) 
 
 I. When they must be disclosed. 
 
 II. NEED NOT BE DISCLOSED. 
 
 I. When they must be disclosed. 
 
 1. Condition annexed required a description 
 of the property insured, its relative situation as 
 to other buildings, and distance from each if 
 less than ten rods. Insured did not state all of 
 the build ings within ten rods of that containing 
 the goods insured. Held, a concealment which 
 avoided the policy. Wilson v. Herkimer Oo. 
 Mut. Ins. Oo., 6 N. Y., 53; Kennedy o. 8t. 
 Lawrence Oo. Mut. Ins. Co., 10 Barb., 285. 
 
 2. The plaintiflf was required by the terms 
 of the contract to state the relative situation of 
 the store as to other buildings, distance from 
 each if less than ten rods. He mentioned five 
 buildings as standing within that distance. 
 Held, this was an agreement that there were 
 no buildings within ten rods of the build- 
 ing insured other than those mentioned, and 
 this being found untrue, he could not recover, 
 because his agreement amounted to a warran- 
 ty; hence whether the fact misrepresented or 
 concealed was material to the risk was a ques- 
 tion not in the case. Burritt v. Saratoga 
 County Mut. Ins. Co., 5 Hill, 188. 
 
 3. Policy insured |750 on stock, and $750 
 on machinery (and it seems it was also on the 
 building," a paper mill). "Reference being 
 had to the application of insured for a more 
 particular description, and the conditions an- 
 nexed as forming part of this policy, etc." 
 The conditions annexed required all applica- 
 tions to be in writing, according to the printed 
 forms prepared by the "company, " Which 
 must state, among others, of what materials it 
 is composed, its dimensions, number of chim- 
 neys, etc., how constructed, and for what occu- 
 pied; its relative situation from other build- 
 ings, distance from each, if less than ten rods." 
 Held, the application was part of the contract, 
 and was a warranty that it truly indicated or 
 described all buildings within less than ten 
 rods from the paper mill ; that the application 
 having omitted all mention of a plough shop 
 and dwelling house within ten rods of the 
 
 mill, the policy was void as to the paper mill 
 only ; that the warranty was limited to the pa- 
 per mill only, and did not include personal 
 property, whether machinery or stock. Trench 
 V. Chenango County Mut. Ins. Co., 7 Hill, 133. 
 
 4. Stipulated : " The application is part of 
 the contract." Insured was required to an- 
 swer these questions : Relative situation as to 
 other buildings ; distance from each within ten 
 rods ; for what purpose occupied." To which 
 insured replied: "In the middle of a block; 
 three storeSj one grocery, one hardware and 
 stove store, one tin shop; Mansion House 
 across the street, about six rods, cabinet shop 
 three rods, harness shop five rods, grocery and 
 dwelling house six rods, wagon shop and 
 blacksmith shop about eight rods, two small 
 houses from four to eight rods, new building 
 to be used for tin shop about three rods, one 
 stone house and one barn about four rods." 
 Following these were the printed words, "All 
 of the exposures within ten rods are men- 
 tioned." A wooden building within ten rods 
 of the premises insured was not mentioned-. 
 Held, the application constituted a warranty 
 that all the buildings within ten rods of that 
 insured were mentioned; that whether the 
 building not mentioned constituted an expos- 
 ure was immaterial, and ought not to have 
 been submitted as a question of fact to the 
 jury. CTiaffee v. Cattaraugus Mut. Ira. Co., 
 18 N. T., 376; Brown v. Same, id., 385. 
 
 5, In the application, this question was pro- 
 pounded: "What is the distance of said 
 building from other buildings within one 
 hundred feet, and how are such other build- 
 ings constructed and occupied? Annex a 
 ground plan to the application." Answer: 
 " See diagram." A description of the neigh- 
 boring property was marked on the diagram, 
 bat three carpenters' shops were not men- 
 tioned nor indicated. The jury found spe- 
 cially that these were not material to the 
 risk. The by-laws, a part of the contract, pro- 
 vided: "Unless the applicant shall make a 
 correct description of and statement of all 
 facts required' or inquired for in the applica- 
 tion, and also all other facts material in refer- 
 ence to the insurance or to the risk or to the 
 value of the property, the policy shall be void." 
 Held, it was void, because the application did 
 not make a correct description of and state- 
 ment of all facts required or inquired for in 
 the application. Tehiet v. Hamilton Mut. Ins- 
 
85 
 
 ADJACENT BUILDINGS. 
 
 When they need not be disclosed. 
 
 Co., 1 Allen, 305 ; Calvert v. Hamilton Mut. 
 Im. Co., Id., 308. 
 
 6. It was stated in the application there is 
 no building within 800 feet of the mill except 
 the stock house. The mill was described as 
 " a wooden four-story paper mill, 50 by 70 
 feet." There was a salt box, 24 by 18 feet, 14 
 feet high, and beyond that there was a brick 
 bleach house, 20 by 80 feet, which was not the 
 stock house, and which was witliin 800 feet 
 of the mill. Held, the warranty was broken. 
 J)ay V. Conway Im. Co., 52 Me., 60. 
 
 II. "When they need not be disclosed. 
 
 1. Ailer the policy was made other build- 
 ings were erected near that insured, whereby 
 the risk was increased. Held, in the absence 
 of a stipulation prohibiting such erection, it 
 was no defense to the action. Stebbins v. Globe 
 Ins. Co., 2 Hall, 632. 
 
 2. In the application insured was asked: 
 How bounded, and distance from other build- 
 ings, if less than ten rods ? Insured described 
 the buildings insured as his, and gave the dis- 
 tance to the nearest buildings in each direc- 
 tion, and as to buildings more remote, but 
 within ten rods (though material to the risk), 
 no statement was made. Held, no conceal- 
 ment Gates V. Madison County Mut. Ins. Co., 
 5 N.Y.,469; 3 Barb., 73. 
 
 3. The agent and surveyor of the insurer in 
 the absence of the insured inspected tlie prem- 
 ises and made a sui-vey, and the agent made 
 put the application, in which he omitted to 
 mention all the buildings within ten rods of 
 the premises insured. Held, the failure of the 
 company's agent to state all the buildings was 
 no defense to the action. Masters «. Madison 
 County Mut. Ins. Co., 11 Barb., 624. 
 
 4. The application required insured to state 
 Ihe relative situation as to other buildings. 
 He answered: "Dwelling about four feet 
 distant one side, about fifteen feet to a small 
 dwelling and storehouse." There were other 
 buildings, not disclosed, a few feet further 
 from the buildings insured. Held, no defense 
 to the action. Hall v. People's Mutual Fire 
 Ins. Co., 6 Gray, 185. 
 
 5. The application stated: "No other 
 buildings within four rods." There were, 
 within that distance, a hog house and hen 
 house, three and a half feet high in rear and 
 eiz in front, covered with boards, but neither 
 
 shingled nor battened. The hogs were sepa- 
 rated from the fowls by a board partition. 
 Held, they were not buildings. White v. Mu- 
 tual Fire Ass. Co., 8 Gray, 566. 
 
 6. Insured was asked to state the distance 
 and direction from each other and from other 
 buildings that were within 150 feet from the 
 buildings insured, also the purpose for which 
 occupied. There was a rough structure, forty- 
 five feet long by eighteen feet high within 
 fifty feet of the property insured, used by car- 
 penters employed to erect the building in- 
 sured, of which nothing was said. Held, the ' 
 omission did not afifect the policy unless the 
 materials usually deposited in it, or the use to 
 which it was applied would have increased 
 the premium had it been made known to the 
 insurer. Biohmondville Seminary v. Hamilton 
 Mut. Ins. Co., 14 Gray, 439. 
 
 7. Insured was required to state in the ap- 
 plication the relative position of the premises 
 as to other buildings ; distance, if less than 
 six rods ; and for what purposes occupied. 
 To which answer was made : " East, eight feet, 
 dwelling house ; east, thirty-two feet, another 
 house ; west and nearly adjoining, a similiir 
 tenement; next west, a street; north of out- 
 building, a street, and across it, buildings ; 
 south, street, about sixty feet. Held, the court 
 rightly refused to instruct, as matter of law, 
 that the existence of a livery stable, painter's 
 and carpenter's shop, were material to the risk. 
 Clark v. Union Mutual Fire Ins. Co., 40 N. H., 
 333. 
 
 8. The application contained this question: 
 " Describe all other buildings and how occu- 
 pied, and all other exposures to fii-c, their dis- 
 tance from the risk and from each other 
 within one hundred feet." Answer : " North, 
 nothing within one hundred and twenty feet ; 
 east, thirty feet to a small building; south, 
 ninety feet to cross street ; west, sixty-six feet 
 to brick hotel across street." Held, the answer 
 did not assume to describe all the buildings 
 within one hundred and fifty feet, and in ac- 
 cepting the application the company treated 
 the answers as sufiScient. Peoria Marine Fire 
 Ins. Co. V. Perkins, 16 Mich., 380. 
 
 9. The policy required insured to state the 
 relative situation of the building insured to 
 other buildings, the distance from each, if less 
 than ten rods, and the purposes for which 
 such other buildings were occupied. Held, 
 no implied agreement that the relative situa- 
 
 43 
 
87 
 
 ADJUSTMENT. 
 
 Conclusive — Not conclusive. 
 
 tipn of the building insured with reference to 
 other adjacent buildings should remain the 
 same during the continuance of the policy. 
 The insured was not responsible for the acts 
 of persons who owned adjoining land. Hovo- 
 ard V. Kentucky and Louisville Mut. Ins. Co., 
 13 B. Mon., 282. 
 
 10, Policy described 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 first 
 class store, which would and did communi- 
 cate with the building insured. Meld, valid, 
 although there was between the house and 
 stone building, a brick building covered with 
 shingles, communicating with both by doors ; 
 there being no proof that the omission to 
 mention in the description the communicating 
 doors was fraudulent, and it being proved 
 that the loss was not caused by the connecting 
 buildings. Casey v. Ooldsmid, 4 L. C, 107. 
 
 ADJUSTMENT. 
 
 (See Saicageb ; Genebal Avebaqe ; Onb-thibd New 
 FOB Old; Pabticulab Atebaob and Pabtiai 
 
 liOSB.) 
 I. CONCLDBIVE. 
 
 II. Not conclusive. 
 
 III. BuIjE fob DETBKMINnfG AMOTOIT OP LOSS. 
 
 I. Conclusive. 
 
 1. An adjustment cannot be opened except 
 for fraud or mistake of facts not known. 
 (Dm V. Smith, 1 Caines, 32.) But the English 
 cases treat an adjustment as prima facie evi- 
 dence only against the insurer, and decide 
 that it may be impeached for fraud, mistake 
 in law, or material fact. (See note a, p. 36.) 
 
 2. A general average made at a foreign port 
 upon which the insured has been obliged to 
 pay, entitles him to recover fi-om his insurer, 
 though the principles upon which it was ad- 
 justed may have been different from those of 
 the home port. Strong v. Firemm^s Ins. Co., 
 11 Johns., 323. 
 
 3. When a general average is fairly settled 
 at a foreign port and the insured obliged to 
 
 44 
 
 pay his portion of it, he may recover that 
 from his insurer, though the settlement at the 
 home port would have been different. Bepau 
 v.. Ocean Ins. Co., 5 Cow., 63. 
 
 4. General average was adjusted at the port 
 of destination according to the laws and 
 usages of that port, and insured paid his con- 
 ti'ibutory portion. Held, he was entitled to 
 recover it of his insurer, although the adjust- 
 ment was made upon principles different from 
 thos«! which prevailed at the port where the 
 policy was niade. Loriny v. Neptune Ins. Co., 
 20 Pick., 411. 
 
 5. Insurers agreed to pay the mortgagee of 
 a ship a sum of money in compromise of his 
 claim against her, and delivered to him their 
 promissory note for that amount. Held, they 
 could not defend an action on the note, on the 
 ground that the owner's fraud caused the loss 
 of the vessel, and that they did not discover 
 the fact till after the note was made. Barlow 
 0. Ocean Ins. Co., 4 Met, 270. 
 
 6. The bill of lading, condemnation of the 
 vessel, and other papers, were laid before in- 
 surer, and the policy was adjusted. The de- 
 fendant sought to open this adjustment by 
 showing that the protest afterwards received 
 vai-ied considerably from the condemnation. 
 Held, the adjustment was conclusive. OAnV 
 tian v. Coombe, 2 Esp., 489. 
 
 7. The policy was indorsed: "Adjusted the 
 general and particular averages at £30 9s. per 
 cent." Hdd, evidence of an adjustment, but 
 not of satisfaction ; and the insured was not al- 
 lowed to show that some of the sumsvrere too 
 small. Adams v. Saunders, 4 C. & P., 25 ; Moa 
 & M., 373. 
 
 II. Not conclusive. 
 
 1. An adjustment of loss indorsed on the 
 policy and signed by the insurer is not con- 
 elusive. The insurer may show that it was 
 made on the misrepresentation of the insured, 
 and whether from design or mistake, is 
 immaterial. Vaugier v. Hallet, 2 Johns. C, 
 233. 
 
 2, " It is hereby agreed between J. L. 
 Whipple, owner of stock and supplies in stone 
 woolen mill, situate Cavendish, Vt., and 
 burned NT)vember 11, 1873, and the represent- 
 atives of the various companies insuring the 
 same, to fix the loss and damage on the same 
 
89 
 
 ADJUSTMENT. 
 
 90 
 
 Rvile for determining the amount of loss. 
 
 as follows: Card room, $1,341.07; spinning 
 room, $15.00; weave room, $1,399.50; finish- 
 ing room, $7,357.85; subject to terms and con- 
 ditions of several policies." Held, not an 
 agreement that there was any thing due, but 
 the companies will pay the loss as fixed, if 
 tinder the terms and condicious of the policies 
 the plaintiff is entitled to payment. (S. C. R. 
 I.) Whipple V. IfoHh British <fe Mercantile Ins. 
 Co., 5 Ins. L. J., 71. 
 
 3. An adjustment made in ignorance of 
 frauds practiced by insured, which would 
 avoid the policy, is not binding upon the in- 
 surer. Mathews v. General Mut. ln». Co., 9 La. 
 An., 590. 
 
 4. An adjustment is an admission resting 
 on the truth of certain facts stated; but the 
 insurer is at liberty, until he has paid the 
 money, to avail himself of any defense which 
 the facts or the law of the case furnish. Her- 
 bert V. Champion, 1 Camp., 134 ; Sliepherd ®. 
 Chewtw, id., 274. 
 
 5. On cargo; she was captured, and an 
 abandonment made ; but she was recaptured, 
 and all the insurers except one settled for a 
 salvage loss. That one Indorsed the policy, 
 "Adjusted £33 per cent, until account of pro- 
 ceeds of goods can be made up, when a final 
 loss is to be paid, same as other underwriters ; 
 if that exceeds £33 per cent., insurer to pay 
 the excess, and if less, insured is to return the 
 difference." Held, it was not an absolute ad- 
 justment, and the plaintiff could not recover 
 .without showing an account of the proceeds 
 of the goods. Gammon v. Beoerely, 8 Taunt., 
 119; S. C, 1 Moore, 5C3. 
 
 6. Policy indorsed :" Settled a particular av- 
 erage loss by plunder £54 lis. lOd. per cent." 
 Held, parol evidence was admissible to show 
 an agreement between the parties, that if other 
 insurers paid a less sum, the surplus should 
 be refunded. Russell v. Daaakey, 6 Moore, 
 233. 
 
 7. She was represented as M 1. After the 
 loss insurers asserted that she was not as rep- 
 resented. They subsequently adjusted the 
 loss at £87 8s. 6d. per cent. The brokers claimed 
 to retain the money in satisfaction of a debt 
 due to them by the person in whose name the 
 policy was made, and this action was brought 
 by the undisclosed principal against insurers. 
 Held, insurers could set up the mistepresenta- 
 tion as a defense to the action. Loshv. Martin, 
 19 C. C. S., 101. 
 
 III. KULE rOE DETEBMINING THE 
 AMOUNT OF LOSS. 
 
 1. On goat skins at and from Coringa to 
 New York, each skin valued at fifty cents — 
 $15,000. It contained the usual printed clause 
 as to prior insurance. A prior insurance of 
 $22,000 was made by an open policy. She 
 sailed with a cargo which, including the goat 
 skins, amounted to $19,020, which, with tlie 
 charges and premium of insurance, made an 
 interest of $22,000 and upwards. Part of the 
 cargo consisted of 58,629 goat skins ; cost at 
 Coringa $5,831. The loss was by capture. 
 Held, the prior insurance of $22,000 must first 
 be deducted, and these insurers made respon- 
 sible for the residue only. The prior insur- 
 ance being under an open policy, upon cargo 
 generally, and this being on goat skins specifi- 
 cally, at fifty cents each ; to give effect to both, 
 the first ought to be considered as attaching, 
 in the first instance, upon that part of the 
 cai'go not covered by the second, in order to 
 leave ailment for the latter. In estimating the 
 loss under the open policy, the goat skins were 
 to be taken at their prime cost, ten cents a 
 piece, and under this policy, it being valued, at 
 fifty cents each. These insurers must answer 
 for the difference between the sum valued on 
 each and that covered by the open policy at 
 forty cents each. Kane v. Commercial Ins. Co., 
 8 Johns., 229 ; Minturn v. Columbian Ins. Co., 
 10 id., 75. 
 
 2. In adjusting a partial loss on a ship re- 
 paired, the value of the old materials used arc 
 to be first deducted from the gross repairs, and 
 one-third new for old taken from that bnlance. 
 Eager v. Atlas Ins. Co., 14 Pick., 141. And a 
 usage at a particular place, to deduct one-third 
 new for old from the gross repairs, cannot 
 be received to control the general principle, 
 the policy being silent as to any such general 
 usag6. Ibid. 
 
 3. " On stock." There were two other pol- 
 icies, "on stock manufactured and unmanu- 
 factured." Held, the rule of adjustment is, to 
 ascertain the amount of stock manufactured 
 and unmanufactured separately covered at the 
 time of the loss, and then apportion it; ac the 
 value of the entire stock is to the sum insured, 
 so would be the amount of the unmanufac- 
 tured to the amount sought. Say $2,100 is 
 the stock : manufactured, $1,500 ; unmanufac- 
 tui-ed, $600. The amount insm-ed ou both, 
 
 4S 
 
91 
 
 ADMINISTRATION. 
 
 92 
 
 Administrator controls policy. 
 
 $700. 2,100: 700:: 600. Blake v. Exchange Mut 
 Ins. Go., 12 Gray, 265. 
 
 4. Stipulated : " When property is insured 
 by this company solely, three-fourths of the 
 value only will be taken, and in cases of loss, 
 this company will be liable to pay three- 
 fourths of the value at the time of the loss. 
 In case of loss or damage to property on 
 which double insurance subsists, the company 
 shall be liable to pay only such proportion 
 thereof as the sum insured by this company 
 bears to the whole amount insured, such 
 amount not to exceed three-fourths of the ac- 
 tual value at the time of the loss." This in- 
 surer's policy was for $2,000, and there was 
 other insurance for $3,000. Held, this insurer 
 was liable for two-fifths of three-fourths of the 
 value of the property. Haley e. Dorchester 
 Mutual Fire Ins. Co., 12 Gray, 545. 
 
 5. The application stated: " $9,000 already 
 ■insured, $8,000 wanted in other companies." 
 Held, insurer's liability was to be calculated 
 by the insurance actually made, not that 
 which the insured intended but did not make. 
 Bichmondmlle Seminary ®. Hamilton Mut. Ins. 
 Co., 14 Gray, 459. 
 
 6. On freight $12,500, valued at $25,000. A 
 part of the freight was earned, and a part lost, 
 the vessel being consumed by fire before the 
 whole cargo was delivered. Held, the meas- 
 ure of damage was in proportion as the 
 
 ' amount of the entire valuation named in the 
 policy bore to the freight actually lost. Fay 
 B. Alliance Ins. Co., 16 Gray, 455. 
 
 7. She was insured for |4,000, valued at 
 $18,000. She grounded, and a large amount 
 of money, exceeding $10,000, was expended in 
 getting her oflf. Held, insurer was bound to 
 pay in proportion as the sum insured bore to 
 the whole value. Firemen's Ins. Go. v. Powell, 
 13 B. Mon., 311. 
 
 8. Stipulated : " In all cases of plurality of 
 insurances on the same subject, this company 
 shall be liable for such ratable proportion of 
 the loss, as the sum insured by this company 
 shall bear to the whole amount insured." In- 
 sured had another policy on the same, and on 
 goods on storage. Held, the other policy was 
 to be applied first to the goods on storage, 
 and anything that remained after covering 
 them fully was to be treated as other insur- 
 ance, to be added to the policy in suit, when 
 the whole amount inieured on the goods de- 
 'scribed in this policy would appear; and upon 
 
 46 
 
 that sum this company was liable in propor- 
 tion as the amount insured by it should bear 
 to the sum ascertained. Angelrodt v. Delaware 
 Ins. Co., 31 Mo., 593. 
 
 9. Stipulated: "In case of total loss, not 
 liable to pay more than two-thirds the actual 
 value of the building, nor more than one-half 
 the value of personal property. Partial losses 
 are paid in full, not exceeding the amount in- 
 sured, provided the insured has on hand the 
 lowest amount stated in the application." 
 Held, the liability of insurer was to be gov- 
 erned by the actual value at the time of the 
 loss, whether the subject was personal prop- 
 erty or buildings ; the ordinary import of the 
 words total loss, and partial loss, were subject 
 to such modifications as might be necessary 
 to the ascertainment of the actual understand- 
 ing and intention of the parties, and were not 
 to receive a construction which would in case 
 of partial loss give insured a sum larger in 
 proportion than he would have if the loss 
 were total. 'Singleton v. Boone County Mut. 
 Ins. Co., 45 Mo., 250. 
 
 10. Time policy for twelve months "on 
 goods," on board thirty boats named, between 
 L. and M., backwards and forwards, with lib- 
 erty to discharge at all places, limited to £3,000 
 on each boat. Held, it continued throughout 
 the year upon all goods afloat at any one time 
 up to the amount limited; and insured was 
 entitled to recover in proportion as the sum 
 insured bore to the whole value of goods afloat 
 at the time of the loss. Crowley v. Cohen, 3 B. 
 & Ad., 478; 1 L. J. (N. S.), K. B., 158. 
 
 ADMINISTRATION. 
 
 1. Stipulated: "If this policy or any inter- 
 est therein shall be assigned without the writ, 
 ten consent of this company it shall be void." 
 It was sent by insured to his uncle in Massa- 
 chusetts, and pledged for a loan of $700. In- 
 sured instructed his parents that they as his 
 heirs could draw the money and pay the debt, 
 " which will leave you $1,800." Insured died 
 in Chicago, 111., October, 1868, and D. was 
 there appointed administrator of the estate. 
 The plaintiff was appointed in January, 1869, 
 administrator in Massachusetts. Held, the ad- 
 ministrator in Massachusetts was entitled to 
 control the policy and collect the money. 
 
93 
 
 ADMIRALTY— AGREEMENTS Op COUNSEL. 
 
 M 
 
 Miscellaneous. 
 
 Merrill v. Nea England Life Ira. Co., 103 Mass., 
 245. 
 
 ADMIRALTY. 
 
 (See JCBisDicnoN.) 
 
 ADMISSIONS. 
 
 (See Stisiehcic; Plbadiiio, V and YI; Prancipu. Aim 
 AeBHT; Fboots ov Lo88.) 
 
 I. What AMOcirr to. 
 II. What ake conclusive. 
 
 I. What amouht to. 
 
 1. Policy to A., loss, if any, payable to B. 
 Held, an admission that B. had an interest in 
 the contract and was to receive the benefit of 
 it. franklin v. National In». Co., 43 Mo., 491. 
 
 2. The printed portion of the policy provided 
 that no risks would be taken on distilleries 
 and steam saw mills; but this policy was on 
 a frame distillery building, and a saw mill 
 attached, which had never been used or occu- 
 pied as a distillery nor as a saw mill. The gen- 
 eral agent, after it was reported to him in the 
 following month, directed the local agent to 
 cancel it. Held, an attempt to cancel was an 
 admission that it was a policy capable of being 
 cancelled, an acknowledgment that it was a 
 subsisting risk. jStna Ins. Co. v. Maguire, 
 61 111., 342. 
 
 3. No stamped policy had been delivered. 
 A notice of the loss was given, the claim ad- 
 mitted, the amount ordered to be drawn, and 
 an entry to that effect made in the minute 
 book of the association, but the money had 
 not been taken by the assured at the time the 
 order to wind up was made. The oflBcial 
 liquidater now rejected the claim, because 
 there had been no stamped policy. Held, the 
 acknowledgment of the claim on the books of 
 the association was sufficient to' establish the 
 relation of debtor and creditor. Teignmouth 
 & General Mutual Ship Aseoeiation v. Mwrtin't 
 claim, 14 L. R. Eq., 148; 41 L. J. (a., 679; 26 
 L. T. (N. S.), 684. 
 
 II. What are conclusive. 
 
 A person who has effected insurance with a 
 company in its corporate capacity, and has 
 received ttom the corporation the amount of 
 his loss, cannot be permitted to deny the cor- 
 porate existence of the company when suit is 
 brought against the insured for restitution. 
 Liverpool Ins. Co. v. Hunt, 11 La. An., 623. 
 
 ADVANCED FREIGHT. 
 
 (See I'BEieHT.) 
 
 AGREED CASE. 
 
 (See CouBT and Jubt, I.) 
 
 1. Case submitted upon an agreed state of 
 facts. Held, the court could only determine 
 the question of law upon the facts agreed ; that 
 it had no power to send the cause to a jury 
 for them to determine facts that were doubt- 
 ful upon the face of the submission. Neilion 
 ■B. Commercial Ins. Co., 3 Duer, 455. 
 
 2. A judgment not warranted by the agreed 
 facts must be set aside. Louisville Marine & 
 Fire Ins. Go. v. Bland, 9 Dana, 143. 
 
 3. In a case presented for decision upon 
 facts agreed, no facts pertinent to the issue are 
 presumed to exist, which do not appear in the 
 statement. Oai-diner v. Piscataquix Mutual 
 Fire Ins. Co., 38 Me., 439. 
 
 AGREEMENTS OF COUNSEL. 
 
 1. The cause was tried below without a jury, 
 but in the court's opinion or reasons for judg- 
 ment, the judge below quoted some portions 
 of the evidence, and the counsel in the su- 
 preme court agreed that as to certain parts of 
 the opinion so given, it presented a correct 
 statement of the case. Held, the court would 
 act upon the agreement so made by counsel, 
 and give to it the effect that it would have 
 been entitled to receive if it had been made in 
 the court below. Insurance Co. v, Tweed, 7 
 Wall., 44. 
 
 41. 
 
95 
 
 AGENT — ALIENATION. 
 
 96 
 
 What is. 
 
 2. Tlie attorneys agreed that the insurer 
 might withdraw the answer and file a demurrer 
 to the petition, on condition that if tlie -de- 
 murrer should be overruled final judgment 
 should be entered. Held, the court properly 
 refused an application to withdraw the de- 
 murrer and stipulations, and to file an answer 
 to the merits, for a party cannot be allowed to 
 make an express agreement and refuse to be 
 bound by it when it proves disadvantageous. 
 FranMin v. National Ins. Go., 43 Mo., 491. 
 
 AGENT. 
 
 (See Prdtoipai, and Agskt.) 
 
 ALCOHOLIC DRINKS. 
 
 (See Intemfxbahcs.) 
 
 ALIEN. 
 
 (See CmzENa.) 
 
 ALIENATION. 
 
 (See Cohcealught; Sstoppbi.; Ikccbbbakoks ; Ih- 
 SUBABLB Isttsbkst; Fbihoipai. and Agsnt; Pol- 
 icy; Title.) 
 
 . I. What is. 
 
 II. NOT. 
 
 (a) Of Leoy. 
 
 (b) Of aale of part, incumbrances, agree- 
 
 ments to sell arid deaih of insured. 
 
 I. What is. 
 
 1. Stipulated; "To be void incase of any 
 transfer or termination of the interest of the 
 insured by sale or otherwise." Insured 
 mortgaged the property to C. and assigned the 
 policy to mortgagee. Subsequently insured 
 conveyed his equity of redemption to the 
 mortgagee. Insurer had notice of the assign- 
 ment of the policy, but did not know of the con- 
 48 
 
 veyance. Held, an approval of the assignment 
 of the policy to the mortgagee did not dispense 
 with any condition of the contract as to 
 change of ownership of the subject insured, 
 hence there could be no recovery either at the 
 suit of the mortgagee or of the insured. Bil- 
 son 9. Manufacturers'' Ins. Co., 7 Am. Law 
 Reg., 661. 
 
 2. The premises were sold by a master in 
 chancery under a decree of foreclosure, and 
 payment of part of the purchase money 
 was made. Held, the mortgagor ceased to 
 have an insurable interest, though the decree 
 was not enrolled and no deed executed. Mc- 
 Laren V. Hartford Fire Int. Co., 5 N. Y., 151; 
 8. C, Edm. S. C, 310. 
 
 3. Stipulated : " If the property shall bo sold 
 or transferred, or any change takes place in the 
 title or possession, either by legal process or 
 judicial decree, or voluntary transfer or con- 
 veyance, then, and in every such case this 
 policy shall be void." Insured was subse- 
 quently, and within the term insured declared 
 a bankrupt, by which all his property passed 
 by the usual assignment to the assignee. 
 Held, insurers were released. Perry x. Loril- 
 lard Fire Ins. Co., 6 Lans., 201. 
 
 4. Stipulated : " If the property be sold or 
 transferred, or any change takes place in the 
 title or possession, whether by legal process 
 or judicial decree, voluntary transfer or con- 
 veyance, without consent of this company 
 indorsed hereon, the policy shall be void." 
 The executrix conveyed the property, and 
 took back a mortgage for a large portion 
 of the purchase money. Held, insurers were 
 released. Savage «. Howard Ins. Co., 53 N. 
 Y., 502; 8. C, 43 How. Pr., 463; 44 id., 40. 
 
 5. The insured assigned all their property, 
 including the subject insured, to trustees to 
 sell it, and pay debts secured by the assign- 
 ment. The property insured was sold under 
 an interlocutory decree, and the assignees 
 afterwards executed a deed to the purchasers. 
 Held, insured retained neither a legal nor 
 equitable estate; that they had nothing at 
 risk. Dadmun Manufacturing Co. v. Worces- 
 ter Mutual Fire Ins. Co., 11 Met., 429. 
 
 6. A. made insurance upon a mill. Stipu- 
 lated : " It shall be void in case insured shall 
 convey either in whole or in part; but it might 
 be continued for the benefit of purchaser with 
 the company's assent, to be evidenced by a 
 certificate of the fact, or by indorsement on 
 
97 
 
 ALIENATION. 
 
 98 
 
 What is. 
 
 the policy." About a month thereafter in- 
 sured indorsed upon the policy: " In case of 
 loss, pay the within to L., to secure his mort- 
 gage ;" to which the company assented. In- 
 surers subsequently granted insured another 
 policy on the same property, " Being three- 
 tenths of the wooden steam saw-mill, etc. ; in 
 case of loss, pay $1,000 to Sawyer to cover 
 mortgage." Insured then indorsed: "Hav- 
 ing sold the within named property to H., 
 I hereby assign and transfer to him the with- 
 in policy," and insured then conveyed to H. 
 by quitclaimr all his interest in the property, 
 to which insurer assented. Hel^, this assent 
 did not protect the first policy, and no re- 
 covery could be had upon it. Loring v. Man- 
 ufacturers' Ins. Co., 8 Gray, 28. 
 
 7. Stipulated : When any property insured 
 by this company shall be taken possession of 
 by a mortgagee or in any way alienated, the 
 policy shall be void. Proceedings were com- 
 menced in bankruptcy by the debtor, and an 
 assignment made in pursuance thereof. Held, 
 an alienation. Toung v. Eagle Fire Ins. Co., 
 14 Gray, 150. 
 
 8. Stipulated: The by-laws shall be a 
 part of the contract. They provided that the 
 application should be a part of it, and that 
 the policy should be void " Unless the true 
 title and interest of the insured and all incum- 
 brances on the property are stated in the ap- 
 plication, and unless the applicant has made 
 a true statement of all facts inquired for in 
 the application." In answer to inquiries, he 
 said : " It is owned by me, and incumbered 
 to several persons about $6,000." He had in 
 fact mortgaged it to several persons to the 
 amount of $13,000, and had conveyed all his 
 legal interest to his brother, by deed absolute, 
 all of which were upon record. The mort- 
 gages beyond |6,000 and the deed were made 
 without consideration for the purpose of de- 
 frauding his creditors. Held, the convey- 
 ances were good as between the parties, that 
 he had no title or insurable interest, and the 
 fact that the deed to his brother was placed on 
 record without the knowledge or consent of 
 the brother was immaterial. Treadway v. 
 Hamilton Mut. Ins. Go., 39 Conn., 68. 
 
 9. The company's charter provided, that if 
 insured should alienate the property the poli- 
 cy would be void. Held, when insured, upon 
 his own application, was decreed a bankrupt, 
 and his assignee in bankruptcy was appoint- 
 
 ed, the property was alienated. Held, also, 
 when insured, by deed absolute, conveyed the 
 property, although his grantee gave him an 
 unsealed agreement to reconvey upon payment 
 of a sum specified, the property was alienated. 
 Adams «. Rockingham Mutual Fire Ins. Go., 89 
 Me., 392. 
 
 to. Insured had erected a house on land of 
 his wife and her son. She had a one-third 
 life estate in the land, and her son had the 
 residue; she joined with her husband in a 
 conveyance, conditioned that the grantee 
 should pay her during her life $50 annually, 
 and a failure to make the payment should 
 vitiate the deed. To secure payment of $500, 
 the grantee reconveyed by mortgage to her 
 husband; but the grantee took possession, and 
 afterwards a loss occurred. Held, a freehold 
 estate vested in the grantee, which could not 
 fail for a breach of condition, unless reentry 
 were made by the person to be benefited by 
 the breach ; that the mortgage did not restore 
 the insured to his former estate; thai his es- 
 tate in the house was essentially changed: 
 that the house became part of the realty and 
 was subjected to the principles applicable to 
 that species of property, and the policy was 
 void. Abbott v. Hampden Fire Ins. Go., 30 
 Me., 414. 
 
 11. The policy prohibited any alienation 
 of the property insured. Insured made a 
 mortgage which was recorded, and in which 
 the premises insured were included. The 
 record of a deed from insured was produced 
 by insurer. The insured then put in evidence 
 a bond of defeasance, from the grantee in the 
 deed to insured, but this had not been re- 
 corded. Held, the deed of insured constituted 
 An alienation, because the deed of defeasance 
 was not recorded, hence the policy was void. 
 Tomlinson v. Monmouth Mutual Fire Ins. Go., 
 47 Me., 332. 
 
 12. Policy to F. & 8. as partners stipulated : 
 " If property insured by this corporation shall 
 be alienated by sale or otherwise, the policy 
 shall thenceforth be void, and be surrendered 
 to the directors to be cancelled." F. sold all 
 his interest in it to S., of which insurer had 
 not any notice. Held, the policy was void. 
 Finley v. Lycoming Ins. Go., 30 Penn. St., 311. 
 
 13. Insured sold the property, and pur- 
 chaser gave a judgment bond for purchase 
 money, upon which judgment was entered. 
 Held, insured had no interest in the loss. 
 
 49 
 
99 
 
 ALIENATION, 
 
 100 
 
 What is. 
 
 Orevemeyer v. Southern Mutual fire Ins. Co., 
 63 Penn. St., 340. 
 
 14. The act of incorporation provided: 
 " When any property insured by this company 
 shall be alienated by sale or otherwise, the 
 policy shall therefrom be void and shall be 
 surrendered to the directors to be cancelled." 
 Insured conveyed the premises and assigned 
 the policy. Seld, it was void ; that evidence 
 tending to show a custom on the part of the 
 insurers to permit such transfers to be made 
 was immaterial. Burger v. Farmers^ Mut. Int. 
 Co., 71 Penn. St., 433. 
 
 15. A mortgagor procured insurance and 
 assigned the policy to the mortgagee, to which 
 the company assented. The charter provided : 
 " An alienation of the property insured, by 
 sale or otherwise, shall render the policy, ipg6 
 facto, void, unless ratified and confirmed to 
 the alienee." The mortgagor quitclaimed all 
 his interest to the mortgagee, but this was 
 never ratified by the insurer. Held, the policy 
 was void. Hoxsie v. Providence Mut. IrmfGo. 
 R. I., 517 ; Hasa/rd v. Franhlin Mut. Mi 
 7 id., 439. IjL 
 
 1 6. Insured, in a mutual comganWwii' 
 premium note for the policy, wS j f aM rwards, 
 upon his own application, declared a bank- 
 rupt and obtained his discharge. Held, he 
 was released from all liability upon the pre- 
 mium note: the contract thereupon ceased to 
 be mutual, and insurer became released, not- 
 withstanding interest was paid upon the pre- 
 mium note after the maker became bankrupt. 
 Beynolds ii. Mutual Fire Ins. Co., 34 Md., 380. 
 
 17. On fixed and movable machinery. A 
 decree of court was made directing a master 
 to sell it, which was obeyed, and, subsequently, 
 the sale vpas set aside, but before it was set 
 aside the loss occurred. Held, the rights of 
 insured under the policy were suspended dur- 
 ring the interval of sale and revocation, hence 
 no recoveiy could be had against insurers. 
 Mount Vernon Manuf. Co. v. Summit County 
 Mutual Fire Ins. Co., 10 Ohio St., 347. 
 
 18. The policy stipulated it should be void 
 if the property should be conveyed or sold 
 ■without the consent of the insurer indorsed 
 upon the policy. It was sold, and the pur- 
 chaser asked the insurer's agent if he would 
 consent to the sale and indorse it upon the 
 policy. . The agent told purchaser to bring the 
 policy and he would make the necessary in- 
 dorsement on it. The purchaser neglected to 
 
 50 
 
 do so, and the indorsement was not made at 
 the time of the fire. Held, insurer was not 
 liable. This case is to be distinguished from 
 that of the Illinois Ins. Co. v. Stanton, 57 111., 
 354. In that case no purchase was made at 
 the time the agent promised to indorse consent 
 to the sale; and, relying upon his promise, 
 the purchasers completed the purchase and 
 took possession of the property. Equitable 
 Ins. Go. ■». Cooper, 60 111., 509. 
 
 19. The policy required all assignments to 
 be made within ten days after the sale of the 
 property, and the policy to be sent to tlie com- 
 pany's office with fifty cents as a recording 
 fee, and a new installment note signed by the 
 assignee. The charter provided that the 
 grantee having the policy assigned to him 
 may have the same ratified for his use upon 
 application to the directors and with their 
 consent, within thirty days after alienation.' 
 Insured conveyed the property March 35, 
 1873, and indorsed the policy to tlie plaintiif, 
 in the presence of the company's agent, June 
 26th, following. The plaintiff alleged thatthe 
 assignee agreed, in the presence of the com- 
 
 Hjaiiy's agent, to pay the installment notes, and 
 Llufjpk policy was delivered to the company's 
 agent for the necessary indorsements to he 
 made. Held, the facts alleged do not show a 
 complete assignment of the policy approved 
 by the company, as provided by the charter 
 and conditions of the contract. The assign, 
 ment was not made within thirty days after 
 alienation; hence a demurrer to the complaint 
 was sustained. (S. C. Ind.) American Ins. Co. 
 V. OallagTier, 5 Ins. L. J., 300. 
 
 20. Defendant pleaded that before the hap- 
 pening of the loss, insured sold and alienated 
 the property insured, without the knowledge 
 and consent of the insurer, and that the grantee 
 or alienee thereof did not, within thirty days 
 thereafter or at any time thereafter, have the 
 policy ratified and confirmed to the grantee 
 by the directors, nor give security to insurer, 
 as required by the provisions of the insurers' 
 act of incorporation, etc. Held, a good plea. 
 Simeral v. Dubuque Mutual Fire Ins. Co., 18 
 Iowa, 819. 
 
 21. On steamboat, on account of whom it 
 may concern, valued at $20,000. The day 
 after it was made, the plaintiff, by a notarial 
 act, transferred all his right, title and interest 
 in the boat for $18,000, payment by indorsed 
 notes, at six, twelve and eighteen months. 
 
101 
 
 ALIENATION. 
 
 102 
 
 What is not. 
 
 The policy did not prohibit an assignment of 
 it nor a sale of the boat. Held, before the 
 plaintiff c raid recover, he must show that the 
 defendants knew that there was an agreement 
 to sell the boat, and that a contingent interest 
 was really intended to be insured. BeU v. 
 Firemen's Ins. Go., 3 Hob. (La.), 423; Same i). 
 Western Marine & Fire Ins. Co., id. 428. 
 
 II. "What is not. 
 
 (a) Of levy. 
 
 1. The sheriff levied an execution, put up 
 the window shutters and closed the doors, but 
 the goods remained in the store. Held, no 
 alienation. Franklin Fire Ins. Oo. v. Findlay, 
 6 Whart., 483. 
 
 2. Any sale or alienation was prohibited. 
 Stipulated: "The commencement of foreclose- 
 ure proceedings, or the levy of an execution, 
 shall be deemed an alienation." A mechanic's 
 lien was filed and perfected on the building, 
 followed by judgment and execution, under 
 which the sheriff adverti-sed and adjourned 
 sale to April 10th ; but a Are occurred on, the 
 8th. Held, not an alienation. Colt v. Phoenix 
 Fire Ins. Co., 54 N. Y., 595. 
 
 3. The policy prohibited sale or conveyance 
 of the property insured, in whole or in part. 
 Held, a sale made by the sheriff, after levy of 
 an execution, was not within the prohibition, 
 for that referred to voluntary sale. Strong v. 
 Manufacturers' Ins. Co., 10 Pick., 40. 
 
 4. Neither a mortgage upon personal prop- 
 erty nor the levy of an execution, without 
 change of possession, is an alienation. Sice 
 V. Tower, 1 Gray, 426. 
 
 5. On store and goods therein. Stipulated: 
 " When the property shall be alienated by sale 
 or otherwise, the policy shall be thereupon 
 void." D. hired the store of plaintiff, pur- 
 chased the goods, put his son in possession, 
 and held it for six or seven months. Insured 
 made another agrement with D., namely : to 
 pay the debts and receive the dues of the store, 
 and to allow D. a certain sum for his services. 
 Insured continued to hold exclusive posses- 
 sion of the property until the Are occurred, 
 which happened within the term insured. 
 Held, no alienation of the store. Lane v. 
 Maine Mutual Fire Ins. Go., 12 Me., 44. 
 
 6. Policy to L. & Co. ; $300 on frame store- 
 house, and $1,200 on stock of goods therein. 
 
 The storehouse belonged to L., no^6 Jj.&.Co. 
 L. & Co. made a conveyance of the goo'ds to 
 C. & Y., in trust, to pay the debts of L. & Co. 
 There was an execution against L. & Co., 
 levied upcm the goods, but they were in pos- 
 session of L. & Co. at the time the fire oc- 
 curred. Held, the fact that the storehouse be- 
 longed to L., and not to L. & Co., did not 
 avoid the policy on the goods; the levy of 
 the execution did not affect the plaintiff's 
 right to recover, for the actual possession was 
 still in L. & Co., and they had the same inter- 
 est and the same power to preserve the goods 
 that they would have had if no execution had 
 been levied. Phoenix Ins. Go. «. Lawrence, 4 
 Met. (Ky.), 9. 
 
 7. Stipulated: The levy of an execution shall 
 be deemed an alienation of the property. Held, 
 a levy which did not divest the title was not 
 within the exception. Pennebaker c. Tomlirv- 
 son, 1 Tenn. Ch., 598. 
 
 (b) Of sale of paH, mcwmbrcmces, 
 agreements to sell, and death of 
 vnswred. 
 
 8. Stipulated: "If the said property shall 
 be sold or conveyed, or if this policy shall 
 be assigned without the consent of the com- 
 pany obtained in writing hereon, then, and in 
 every such case, this policy shall be null and 
 void." Held, in order to avoid the policy, the 
 insured must sell the whole of his interest in 
 the property ; so long as he held any interest 
 in it, the policy was binding. Seanlon v. 
 Union Fire Ins. Co., 4 Bissell, 511. 
 
 9. A conveyance of property by way of se- 
 curity for debt is treated as a mortgage, what- 
 ever form tlie parties may have adopted to 
 effect that object. A conditional sale, with 
 right of repurchase, the sole consideration be- 
 ing a debt due from the grantor to the grantees, 
 the parties intending to give and take security 
 for the debt, is not an alienation. Holbrook v. 
 American Ins. Co., 1 Curtis C. C, 193. 
 
 10. Insured made a deed conveying the fee 
 to N., which was recorded ; but it was placed 
 in the hands of H., to remain until certain 
 controversies shpuld be settled. Held, record- 
 ing the deed was only prima facie evidence of 
 delivery; but this was rebutted, hence there 
 was no alienation. Gilbert v. North American 
 Ins. Co., 28 Wend., 43. 
 
 11. Insured made a mortgage to secure a 
 
 51 
 
103 
 
 ALIENATION. 
 
 104 
 
 What is not. 
 
 debt. Held, not an alienation. Oonover v. 
 Mut. Ink. Co., 1 N. T., 290; 8. C, How. App. 
 Caa., 604 ; 3 Denio, 254. 
 
 1 2. Policy to H. P. & Co. " On stock of mer- 
 chandise, their own or held by them in trust, 
 on commission, or sold but not delivered, to 
 be void 'if the said property shall be sold or 
 conveyed." 8., one of the partners retired 
 from the business, selling out his interest to 
 H. & P. Held, not such a sale or conveyance 
 as was prohibited. Herman v. ^tiM Ins. Co., 
 32 N. Y., 405; 8. C, 1 Rob., 501; 19 Abb. 
 Prac, 325. 
 
 13. On ship, for account of whom it may 
 concern. The plaintiffs were owners at the 
 time the policy attached, April 1st, and on the 
 16th and 18th of the same month, she encoun- 
 tered storms and suffered injury. The master 
 and crew, by great exertion, kept her afloat till 
 May 5th ; when she was about to sink, they 
 abandoned her. One fourth interest in the 
 ship was sold April 34th. Held, the loss oc- 
 curred prior to the sale, hence insurers were 
 liable for the whole sum insured. Duncan v. 
 Great Western Ins. Co., 42 N. Y. (3 Keyes), 394; 
 8. C, 1 Abb. Dec, 563; 5 Bos., 378, note; 19 
 How. Pr., 313. 
 
 14. Stipulated: "To be void if the proper- 
 ty insured shall be sold or assigned." The 
 guardian of the infant heirs contracted to sell 
 some of the property, so soon as requisite au- 
 thority could be obtained, and gave the vendee 
 possession as tenant. The Are occurred be- 
 fore the contract of sale was consummated. 
 Held, no sale within the meaning of the 
 policy. Clinton v. Hope Ins. Co., 45 N. Y., 
 454; S. C, 51 Barb., 647. 
 
 1 5. An agreement to sell and convey is not 
 an alienation. Masters v. Madison County Mut. 
 Ins. Co, 11 Barb., 634. 
 
 16. Insured had agreed to sell the property 
 (wool) insured, and to apply the price of it 
 against a debt held by the purchaser against 
 the seller. Held, that until the wool was 
 weighed and something done to pass the 
 property, the interest of the insured was not 
 divested. Pitney v. Glens Falls Ins. Co., 61 
 Barb., 335. 
 
 17. The owners of certain machinery made 
 a chattel mortgage upon it, and afterwards 
 procured this policy without giving any 
 notice of it to insurers. Held, no defense to 
 action. Allen v. Franklin Fire Ins. Co, 9 
 How. Pr. 501. 
 
 18. The parties insured the property and 
 applied for partition which was ordered. A 
 sale was made, but before it was confirmed, 
 and before the conveyances were made, the 
 buildings were consumed. Held, not an aliena- 
 tion. Gates V. Smith, 4 Edw. Ch., 702. 
 
 1 9. " To be void, if the property shall he 
 sold or ti-ansferred." Insured conveyed an 
 undivided one-half of his interest in his con- 
 tract of purchase, to which the company was 
 not asked to assent. Held, he could recover to 
 the extent of his undivided one-half interest. 
 Manley v. Insurance Co. of North America, 1 
 Lans., 20. 
 
 20. Insured conveyed an undivided half of 
 the premises, reserving a term of seven years. 
 The grantee reconveyed his interest by mort- 
 gage to the grantor, who demised for the term 
 reserved. Held, not an alienation within the 
 meaning of the policy. Stetson v. Massachusetts 
 Mutual Fire Ins. Co., 4 Mass., 330. 
 
 21. She was owned by C, the master, A. 
 and B., one quarter each. C. effected insur- 
 ance in his own name for account of whom it 
 might concern. He gave authority to P. to 
 sell his interest, and subsequently he and A. 
 authorized P. and the master to sell their 
 respective shares after the outward cargo 
 should be delivered. A bill of sale of the 
 two quarters of C. and B. was made by P. 
 alone to the master, for himself and A., and 
 bills were drawn by the master upon A. in 
 favor of C. and B. for the purchase money, 
 which were protested for nonacceptance. She 
 was lost after the sale and within the term 
 insured. Held, the subsequent instructions 
 revoked the former authority which was given 
 to P. alone ; that the sale, being in the name of 
 P. only, was insufficient ; that the master, being 
 one of the parties autJiorized to sell, could not 
 be purchaser; therefore, nothing passed by the 
 sale ; that as A. never ratified the sale, it was 
 entirely invalid; hence, the ownership of the 
 vessel at the time of the loss was the same as 
 at the date of the policy. Oopeland v. Mercan- 
 tile Ins. Co., 6 Pick., 198. 
 
 22. Stipulated : " Where any mansion, 
 house, or other building, shall be alienated 
 by sale or otherwise, the policy shall there- 
 upon be ipso facto, void." Held, not to in- 
 clude a conveyance by mortgage. And that 
 this limitation is necessary to give effect to 
 the 20th rule of the by-law, which provides: 
 " Where any estate mortgaged shall he taken 
 
 62 
 
ifin 
 
 ALIENATION. 
 
 106 
 
 What is not. 
 
 possession of by the mortagee, for breach of 
 the condition expressed in the mortgage deed, 
 or on any bond of defeasance, the policy 
 shall tJieteupon be absolutely void, unless the 
 policy shall be transferred to the mortgagee 
 with the consent of the president." Jackson 
 a-MatiachuaetU Mutual JPire Tns. Co., S3 Pick., 
 418. 
 
 23. A by-law of a mutual company re- 
 quired the assent of its directors to an aliena- 
 tion of the property insured. The insured 
 made an agreement to convey, assigned the 
 policy, and gave possession of the premises 
 to his covenantee. Sdd, the consent of the 
 directors was not necessary. PWfltp* c. Mer- 
 rintaek MtOual Fire Ins. Co., 10 Gush., 350. 
 
 84. On a mortgagee's interest, stipulated: 
 " In case of payment of any loss to a mort- 
 gagee -whose interest only is insured, the 
 party so paid shall at tlie time of payment 
 assign to the company so much of his interest 
 in the mortgage as may not be necessary to 
 extinguish the balance of the debt due there- 
 on." Insured agreed to quitclaim to S. on 
 request, if made within three years, all his 
 rights against the property, and the benefit 
 of the insurance to her, for the sum of $150, 
 payable in one year; but this agreement -n-.-is 
 not made known to the insurer. Held, not an 
 agreement on the psurt of S ; she had the right 
 to pay or neglect to pay the $150, and take 
 the conveyance; it was a mere executory con- 
 tract, and until she tendered the money, she 
 had neither a legal nor an equitable right to 
 the property; hence, it was no alienation. 
 Daei* v. Qaineif Mutual Fire In*. Co., 10 Allen, 
 113. 
 
 25. The mortgagor of a vessel sold his 
 interest, and stipulated to pay off the mort- 
 gage. He failed to comply with the stipula- 
 tion, and the title was reconveyed to him. 
 Held, no defense to an action upon the policy. 
 WorthingUm e. Bearse, 12 Allen, 382. 
 
 26. On frame building and merchandise — 
 prohibited any sale or transfer of the property. 
 Insured sold all the goods which were on the 
 lower floor, and admitted the purchaser to pos- 
 session, keeping possession of those on the 
 upper floor. Held, he could recover for loss 
 of the building and the goods not sold. We»t 
 Branch Ing. Co. r. Helfen»tein,^Fean. St., 289. 
 
 27. Stipulated: "If insured property shall 
 be alienated by sale or otherwise, or be trans- 
 ferred by any change of partnership or o-ftner- 
 
 sliip, the policy shall be void." Insured con- 
 tracted U> sell, and received part of tlie pur- 
 chase money, but no conveyance was made. 
 Held, not a violation of the condition. Hill 
 r. Gwrdterland VaUey Mutual Protection Co., 
 59 Penn. St, 474. 
 
 28. Policy to G. B. Forney. Action by his 
 administrator. The premises were sold by 
 order of the orphan's court, January 8, 1870 ; 
 the order of sale was returnable February 14th, 
 but the premises were destroyed February 7th. 
 The sale was confirmed and deed made April 
 1st Held, no alienation, for the loss occurred 
 between the sale and the confirmation, and 
 the legal title was then in the heirs of the 
 deceased. Farmert' Mutual Ins. Co. v. Graybill, 
 74 Penn. St, 17. 
 
 29. The assignment ofa portion of the mort. 
 gage debt does not defeat a policy in favor of 
 mortgagee. Bex v. Ins. Cos., 2 Phila., 357. 
 
 30. On vessel in the name of S., for account 
 of whom it might concern. T. was owner at 
 the time the policy was made, but F. had 
 agreed to purchase. T. afterwards conveyed 
 to F., and took a mortgage to secure the un- 
 paid purchase money. Held, the legal title 
 was in the vendor; that the formal change of 
 title did not afliect the insurable interest of T. 
 (citing Stetson v. Massachusetts Mutual Fire 
 Ins. Co, 4 Mass^ 330; Howard Ins. Co. v. 
 Burner, 23 Penn. St, 50). Stetson v. Ins. Co., 4 
 Phila., 8. 
 
 31. Policy made Novemlier 15, 1848. In- 
 sured mortgaged the premises December 27th 
 following, and assigned the policy to the mort- 
 gagee. In March, 1850, he conveyed an undi- 
 vided half to G., subject to the mortgage ; to all 
 of which insurers assented, and in February, 
 1852, insured and G. quitclaimed their interest 
 in the premises to the mortgagee who con- 
 tracted by bond to convey the premises to 
 W. and S, in case they should perform certain 
 conditions, and then the mortgagee also con- 
 tracted to reconvey to insured and G. in case 
 W. and S. should fail to perform the conditions. 
 W. and S. entered into possession, failed to ful- 
 fill the conditions, and forfeited all claim to a 
 conveyance from the mortgagee ; but they re- 
 mained as tenants of insured and G., to whom 
 they paid rent Insurers were notified of the 
 occupancy, and assented. The property was 
 consumed by fire February 5, 1853, and the 
 mortgagee in fulfillment of his agreement to 
 insured and G., reconveyed the premises to 
 
 S3 
 
107 
 
 ALIENATION. 
 
 108 
 
 What is not. 
 
 them February 28, 1853. Held, not an aliena- 
 tion ; the rights of the mortgagee were equally 
 entitled to protection, whether the action was 
 in his own name or that of his assignor after 
 notice of and assent to the assignment. Pol- 
 lard v. Somerset Mutual Fire Ins. Co., 42 Maine, 
 231. 
 
 32. Insured gave a deed of the property to 
 P., who gave back a defeasance. Seld, the 
 two instruments together made a mortgage, 
 and that a mortgage was not an alienation, 
 although the defeasance was not recorded at 
 the time it was made ; but the evidence showed 
 that it was recorded before the rights of any 
 third party attached. Smith v. Monmouth Mu- 
 tual Fire Ins. Co., 50 Maine, 96. 
 
 33. The contract provided that it should be 
 binding if the insured had title in fee simple 
 unincumbered to the land upon which the 
 buildings insured stood; that it should be void 
 if he had not such title, unless the title that he 
 did have, and incumbrances, were expressed 
 upon the policy, and in the application made 
 for it ; also, when any house or building insured 
 shall be alienated by sale or otherwise, the 
 policy shall be void; but that the alienee 
 might have it transferred to him with the con- 
 sent of the company. The plaintiff conveyed 
 to P. by deed of warranty, and P. conveyed to 
 the plaintiff at the same date by deed of war- 
 ranty, conditioned to be void if P. or his rep- 
 resentatives should pay plaintiff $2,000 within 
 three years and allow plaintiff to hold peace- 
 able possession until payment should be made. 
 P. never made any payment up to the time the 
 Are occurred, which was more than four years 
 after the date of the transaction. Held, both 
 deeds were to be regarded as one transaction, 
 hence there was no alienation. Tittemore b. 
 Vermont Mutual Fire Ins. Co., 20 Vt., 545. 
 
 34. The policy prohibited any sale or as- 
 signment of the property insured, but pro- 
 vided: "The grantee, if the policy shall be 
 assigned to him, may have the same ratified 
 and confirmed, upon application to the direct- 
 ors, with their consent, within thirty days next 
 after alienation." The property was sold, and 
 the policy assigned to the grantee, November 
 11, 1865. On the 19th the premises were con- 
 sumed by fire, and on the 20th the grantee and 
 assignee notified insurers of the sale and as- 
 signment, and asked for a ratification and con- 
 firmation of the policy to him, which was 
 refused. Held, the sale and assignment did not 
 
 54 
 
 render the policy void, for the parties to the 
 conveyance and assignment had the right to 
 assume that the company would ratify and 
 confirm the assignment to the grantee upon 
 the conditions specified, provided he was a 
 proper person to be admitted as a member of 
 the company, and the company could not ar- 
 bitrarily refuse to ratify the sale and confirm 
 the policy ; that in order to justify a refusal to 
 ratify and confirm, the insurers must give evi- 
 dence that the grantee was not a fit and proper 
 person to be admitted as a member. Boynton 
 V. Farmers' Mutual Fire Ins. Co., 43 Vt, 256. 
 85. Stipulated : " If said property shall be 
 sold or conveyed, this policy shall be null and 
 void." The policy was to a mortgagee, and 
 subsequently one of the part owners of the 
 property released his equity of redemption in 
 favor of the mortgagee. Held, the stipulation 
 did not embrace a conveyance made to insured 
 increasing his interest. Heaton v. Manhattan 
 Ins. Co., 7 R. I., 503. 
 
 36. Policy provided, if the property insured 
 should be alienated, by sale or otherwise, it 
 should be void. Held, the death of the in- 
 sured was not alienation. Burbank v. Bock- 
 ingha/m Mutual Fire Ins. Co., 24 N. H., 550. 
 
 37. Act of incorporation prohibited an 
 alienation of the subject insured, unless the 
 policy was assigned to the alienee with the 
 assent of the insurer. Held, a mortgage was 
 not an alienation within the meaning uf the 
 prohibition. Boiling v. Columbian Mutiud Fire 
 Ins. Co., 25 N. H., 200. 
 
 38. The insurer, by memorandum upon the 
 policy, agreed to pay it to the mortgagee in 
 case of loss. The mortgage was afterwards 
 foreclosed. Held, the foreclosure was not an 
 alienation, and an action could be maintaiaed 
 in the name of insured for the loss. Bragg v. 
 Neho England Fire Ins. Co., 25 N. H., 289. 
 
 39. The charter prohibited any alienation 
 of the property. A mortgage was made by 
 the insured upon it, to which the company 
 was never required to assent. Held, no alien- 
 ation. STiepherd v. Union Mutual Fire Ins. 
 Co., 38 N. H., 233. 
 
 40. Stipulated : " If the property shall be 
 sold or conveyed, or this policy assigned 
 without the consent of the company obtained 
 in writing thereon, then it shall be void." 
 Also, " If the interest in the property insured 
 be a leasehold, or other interest not absolute, 
 it must be so represented to the company and 
 
109 
 
 ALIENATION. 
 
 110 
 
 What is not. 
 
 expressed in the policy." Insured had mort- 
 gaged the property, and had agreed to sell 
 their equity, the purchaser to assume the 
 mortgage. A part of the consideration was 
 paid, but the deed was not made, nor was pos- 
 session delivered when the fire occurred. Af- 
 ter the fire, the grantors agreed to collect the 
 insurance money for the benefit of the pur- 
 chaser. The deed was executed and deliv- 
 ered. Held, insurers were liable for the loss, 
 for the stipulations were to be construed 
 strictly, and nothing but an absolute sale or 
 conveyance would avoid the policy. Wash- 
 ington Fire Ins. Co. v. Kelly, 32 Md., 421. 
 
 41. Insured made a contract to convey, but 
 the property was burned before the deeds 
 were executed. Seld, not an alienation. Trum- 
 bull e. Portage County Mut. Ins. Co., 12 Ohio, 
 305. 
 
 42. Stipulated: "If the property shall be 
 sold or conveyed, the policy shall be void." 
 The insured mortgaged and then insured the 
 goods and assigned the policy to the mort- 
 gagee, to which insurers assented. The mort- 
 gagor then delivered possession to the mort- 
 gagee, who removed them, and obtained in- 
 surer's consent to their removal. Meld, not a 
 sale and conveyance. Washington Ins. Go. «. 
 Hayes, 17 Ohio St, 432. 
 
 43. S. erected a building, and procured in- 
 surance upon it. He subsequently agreed to 
 exchange with F,, for certain lands, each to 
 give an unincumbered title. Deeds were made 
 and delivered in eserow, until F. could dis- 
 charge a mortgage then outstanding against 
 his lands; but S. got possession of the deed 
 of F., had it recorded, and returned it to 
 the custodian. The property was burned 
 before the exchange could be perfected. Held, 
 the recording of the deed of F. did not make 
 it a conveyance to S., for F. had the right to 
 compel the record of it to bo cancelled ; that 
 the only effect of recording the deed was to 
 prevent F. from further incumbering the 
 lands; that the transactions did not amount 
 to a sale of the interest of S. People's Ins. Co. 
 
 ! 0. Straehle, 2 Gin. Sup. Ct, 186. 
 1 44. Insured made a deed of the goods in- 
 ' sured to C. and Y., for them to sell and pay 
 debts of insured. The evidence conflicted as 
 to whether the deed was delivered ; but there 
 •was no transfer of possession. The policy 
 prohibited " any transfer of the interest of the 
 insured by sale or otherwise." Held, the 
 
 malting and delivery of the deed, witliout 
 change of possession, did not transfer the in- 
 terest which insured had in the goods. Phm- 
 nix Ins. Co. •». Lawrence, 4 Met (Ky.), 9. 
 
 45. H. & H. purchased from insured, 40,000 
 shoulders, in bulk, to be paid for, cash on 
 delivery. The vendors ascertained that they 
 had not tliat number in the condition required 
 by contract, but they had shoulders that were 
 being smoked. The vendor and vendee agreed 
 that the deficiency should be made up from 
 tlie smoked shoulders. The vendees employed 
 an inspector to inspect them, and tJie should- 
 ers were weighed and inspected ten or fifteen 
 days before they were ccmsumed by the fire in 
 question. The vendees had advanced, by way 
 of accommodation, and not of obligation, to 
 the vendors, $17,000, about one-half of tha 
 cost of the whole. Held, evidence was admis- 
 sible to show that it was the understanding and 
 intention of the parties that the ownership and 
 risk should remain with the vendors and un- 
 der the protection of their insurance, until 
 payment and delivery, for when the insurers 
 set up the conti'act of sale as a defense to the 
 policy, they must abide by the nature and 
 
 ■ effect of the contract of sale as it existed be- 
 tween the parties who made it Jackson v. 
 JEtna Ins. Co., 16 B. Men., 343. 
 
 46. On steam boiler and connections, vats, 
 tubs, etc., and on building, separate sums on 
 each, prohibited any sale, alienation, transfer, 
 conveyance or change of title in the property 
 insured. The husband of insured sold and 
 delivered the boiler. HM, the prohibition 
 referred to the realty, and not to the personal 
 property; the sale or ti-ansfer of the boiler 
 did not affect the right of tbe insured to re- 
 cover for the property not sold. Commercial 
 Ins. Co. V. Spankneble, 52 111., 58. And a sale 
 made by the husband, without the consent or 
 procurement of the wife, could not affect her 
 rights. Ihid. 
 
 47. Policy on bar room furniture, etc., for 
 one year from December 2, 1837. Insured 
 sold to F., who kept possession about six 
 months, and (iien F. failing to par for the 
 property, insured took possession of the 
 goods and premises and retained it to the 
 time of the loss, which was within the term 
 insured. Held, insurers were liable. Power 
 0. Ocean Ins. Co., 19 La. (O. S.), 28. 
 
 48. Tlie members of a mutual society en- 
 gaged to contribute to the losses of each ; but 
 
 55 
 
Ill 
 
 ALLEGATA ET PROBATA. 
 
 112 
 
 Variance. 
 
 they were required to prove property of £500 
 in a ship, and give six months notice of in- 
 tention to withdraw from membership. The 
 plaintiif showed that ho had the requisite 
 pioperty, and the loss; that he had disposed 
 of the ship before the loss, but had agreed to 
 pay the pui chaser £500 if she was lost within 
 three months. Hdd, he could recover. Seed 
 f>. Cole, 3 Burr., 1513. 
 
 49. One of the rules of the company pro- 
 vided that, " Ships sold shall be off risk from 
 the date of transfer, provided notice in wri- 
 ting shall be given ten days after such trans- 
 fer, neglecting to do so, only to be off risk 
 when such notice is given to the secretary." 
 The owner transferred her absolutely in form, 
 but he was still liable for the debt which the 
 transfer was intended to secure. Mdd, the in- 
 sured was entitled to recover. HtUcAinson v. 
 WrigM, 25 Beav., 444; 4 Jnr. (K. S.), 749; 37 
 L. J. Ch., 834. 
 
 ALLEGATA ET PEOBATA. 
 
 (See EynjENCi; ; Lixitatiosof AcnoFs; Plsasiko; 
 Befokkation oy Wbttihg.) 
 
 I. Vabiaitcb. 
 
 II. No TAKIAUCB. 
 
 Yaeiakce. 
 
 1. If the insured declares for a loss by cap- 
 ture, he cannot recover upon proof that it was 
 caused by barratry, for insurer is presumed 
 not prepared to answer barratry. GrmtsiUat 
 V. BaM, 3 Teates, 375; 4 Dall., 394. 
 
 2. Under a general averment of interest in 
 the entire thing, the insured shall recover in 
 proportion to the quantum of interest proved 
 upon the trial. Murray u. Columbian Ins. Co., 
 11 Johns., 302. 
 
 3. The plaintiff cannot, upon the trial, sus- 
 tain a recovery upon an account stated, if his 
 cause of action is founded upon what is 
 known as a temporary policy under the Mas- 
 sachusetts statute. Qreenfidd v. MoMaefmnetts 
 Mutual Life Ini. Co., 47 N. Y., 430. 
 
 4. The plaintiff averred that he was inter- 
 56 
 
 ested in the property, but it appeared that the 
 policy had been assigned. Held, he could not 
 maintain the action witiiout averring that he 
 purchased the property before the loss. Gran 
 ger v. Howard Ins. Go., S Wend., 800. 
 
 5. Plaintiff averred a joint loss on a joint 
 interest, but the proof was a separate insur- 
 ance. Held, the variance was fatal. Burgher 
 V. Columiiian Ins. Co., 17 Barb., 374. 
 
 6. The averment of interest must be truly 
 stated in the declaration according to the fact, 
 viz^ that the policy was made for the use of 
 the plaintiff and two others, and that they 
 were jointly interested at the time it was made 
 and at the time the loss occurred. Bider v. 
 Ocean Ins. Co., 20 Pick., 359. 
 
 7. Insured offered to show that she was in- 
 duced to accept the policy (one of the condi- 
 tions of which defeated her right to recover), 
 by the fraud of the defendants and their 
 officers. Held, if she was induced to take the 
 contract by fraud, she might repudiate it, and 
 have her remedy against the party by whom 
 she was defrauded ; but she could not sue upon 
 the contract and recover by proving fraud. 
 TOibetts V. Hamilton Mut. Ins. Co., 3 Allen, 
 569. 
 
 8. Insurer pleaded that insured had altered 
 the buildings, and insured traversed the plea. 
 Held, evidence of waiver was inadmissible. 
 DieM V. Adams County Mut. Ins. Co., 58 Penn. 
 St, 443. 
 
 9. A policy to two persons jointly cannot 
 be given in evidence under a count setting up 
 a sole interest in one. Stetsm v. Insurance Co.., 
 3 Phila., 380. 
 
 10. Unless the pleadings disclose the plain- 
 tiff's intention to recover fbr an interest other 
 than his own, he cannot do so, notwithstand- 
 ing that the policy is for account of whom it 
 may concern. Charleston Insurance & Trust 
 Co. V. Comer, 3 Gill., 410. 
 
 11. The plaintiffs averred in their declara- 
 tion that the defendant, " In consideration that 
 the said company had accepted the assign- 
 ment of a certain policy to the defendants, had 
 there and then promised to pay all assessments, 
 etc." But the contract introduced to sustain 
 this allegation, stated, "that the policy having 
 been assigned to us in consideration thereof, 
 we hereby promise to pay to said company 
 all assessments," etc. Held, the consideration 
 set forth in the declaration was an acceptance 
 of the assignment, while the proof was an aa- 
 
113 
 
 ALLEGATA ET PROBATA. 
 
 114 
 
 Variance. 
 
 signmeut itself, and not the acceptance of it, 
 which was a material variance. New Hamp- 
 thire Mutual Fire Ins. Co. v. Sunt, 30 N. H., 
 319. 
 
 1 2. If the action is for a total loss founded 
 upon an abandonment, it must be based upon 
 Uie cause assigned in the notice of aband- 
 onment. Maryland Ins. Co. v. Sathurst, 5 G. 
 & J., 159. 
 
 1 H. The insured may recover for a partial 
 loss, though he declares for a total. Barney v. 
 Marsland Ins. Co., 5 H. & J., 139. 
 
 14. The petition set forth an absolute agree- 
 ment to insure, independent of any policy or 
 other prior transaction. But insured offered 
 parol proof to show that the written policy 
 was modified by consent and agreement of the 
 parties. Held, under the pleadings, it was 
 not competent to graft the verbal on the writ- 
 ten agreement Senning v. United States Ins. 
 Co., 47 Mo., 435. 
 
 15. The indictment charged A. and B. with 
 burning the premises. The evidence was 
 clear that if they were guilty at all, it was by 
 way of procurement Seld, a fatal variance ; 
 the accused could not be convicted unless they 
 were present at the burning. Meister v. The 
 People, 31 Mich., 99. 
 
 16. The policy was to Nicholas Staaden, 
 but the magistrate's certificate described in 
 the declaration was made to C. Staaden. There 
 was no averment that C. Staaden and Nicho- 
 las Staaden were one and the same person. 
 Held, the declaration did not agree with the 
 proof, and therefore the judgment must be re- 
 versed with leave to amend. Oreat Western 
 Ins. Co. V. Staaden, 26 111., 360. 
 
 17. The policy was made subject to certain 
 conditions annexed, some of which were con- 
 ditions precedent Hdd, the policy and the 
 conditions constituted an entire contract, and 
 the legal effect of the whole should have been 
 set out in the declaration, and failing so to do, 
 the contract was not admissible in evidence 
 against the insurer. Sockford Ins. Co. v. Net- 
 ion, 65 111., 415. 
 
 18. At and from Gottenberg, to her first 
 port of discharge in the Baltic not higher than 
 Riga, beginning the adventure from the load- 
 ing thereof. Insurances had been made upon 
 the same from London to Gottenberg only, by 
 the same insurer, who knew that he was insur- 
 ing the same goods in the second policy that 
 were mentioned in the first The insured 
 
 alleged in his declaration that the goods were 
 laden at Gottenberg. They were not dis- 
 charged from the ship at Gottenberg, but 
 continued on board from the lading there- 
 of at London until they were captured after 
 she left Gottenberg. Held, the plaintiff must 
 be nonsuited. Spitta v. Woodman, 3 Taunt, 
 416. 
 
 19. The interest averred in the declaration 
 must be truly stated, and if there be two 
 counts, one averring an interest 'in A. and the 
 other an interest in B., and the proof is that 
 A. and B. are jointly interested, the variance 
 is fatal. Colien v. Sannam, 5 Taunt., 101. 
 
 20. The plaintiff averred that after the 
 loading of the cargo the ship was lost But, 
 the proof was that, before she had one half 
 her cargo on, she was driven from her moor- 
 ings and lost. Held, the variance was fatal. 
 Abitbol «. Bristow, 6 Taunt, 464; S. C, 3 
 Marsh., 157. 
 
 21. Where one has separate demands 
 against several persons for unequal sums, an 
 ofi'er of one sum for the debts of all does not 
 support a plea which states that a certain 
 portion of the sum was tendered for the debt 
 of one. Strong v. Harvey, 3 Bing., 304; 4 L. 
 J. C. P., 57; il Moore, 73. 
 
 22. Certain regulations of the association 
 were indorsed on the back of the policy and 
 were declared to be a part of it. Hdd, the 
 regulations as well as the i>olicy must be set 
 out in the declaration. Strong v. BtHe, 3 Bing., 
 315: 4 L. J. C. P., 73; 11 Moore, 86. 
 
 23. The declaration averred: "That the 
 goods were seized in a forcible and hostile 
 manner by certain persons, enemies of our 
 lord the king, to the plaintiff unknown." She 
 arrived at a port near Campeachy, put the 
 goods into a launch with a view to running 
 them ashore in the night at Campeachy. They 
 were seized by two Spanish brigs — the land- 
 ing being illegal by the laws of Spain. Hdd, 
 the proof did not support the averment. Mat- 
 thie D. Potts, 3 B. & P., 23. 
 
 24. Loss alleged by the barratry of the 
 mariners and by the perils of the seas. The 
 acts of barratry were taking on board smug- 
 gled goods, for which she was seized but re- 
 stored upon the owners' petition. While she 
 was under seizure she suffered damage by col- 
 lision. Hdd, when the ship was under seizure, 
 the owner ceased to have any property in her, 
 for, if the seizure was pro justa catisa, the 
 
 57 
 
115 
 
 ALLEGATA ET PROBATA.. 
 
 116 
 
 No variance. 
 
 property immediately vested in the crown. 
 Pipon u. Cope, 1 Camp., 434. 
 
 25. If the plaintiff declare for a loss by 
 " perils of the seas," he cannot recover if the 
 proof shows a loss merely barrati-ous, as a 
 fraudulent sale or the like; but, if the barra- 
 trous conduct be the cause of a loss by perils 
 of the seas, the declaration is supported. Say- 
 man V. Pariah, 3 Camp., 149. 
 
 26. The ship insured, mistaken for a 
 French privateer, was fired into and immedi- 
 ately sank, and it was alleged in the declara- 
 tion a loss by perils of the sea. Held, a vari- 
 ance. Oullen v. Butler, 4 Camp., 389 ; 5 Mau. 
 & Sel., 461 ; 1 Stark., 110. 
 
 27. The loss was alleged to be "with force 
 and in a violent and piratical manner attack- 
 ed, boarded, seized and taken by certain pi- 
 rates, to the plaintiff unknown." She was 
 forced by stress of weather into Elly harbor, 
 Ireland, and there happening to be a great 
 scarcity of corn there, she was boarded by a 
 great number of persons who took control of 
 her and weighed anchor, by which she drifted ' 
 upon a reef where she was stranded. Some 
 of the corn was thrown overboard and other 
 part damaged, ffdd, the proof did not sup- 
 port the declaration. Neabittti. Lushington, 4 
 Term, 783. 
 
 28. The declaration averred the interest in 
 John Bell, and that the policy was made for 
 the benefit and on account of John Bell. The 
 persons really interested were John Bell and 
 his brother William. Seld, a substantial va- 
 riance. Bell V. Ansley, 16 Bast, 141. 
 
 29. The plaintiffs averred that they were 
 the persons residing in great Britain, who 
 received the orders for and executed the in- 
 surance. Hdd, although without such an 
 averment the court might have been bound 
 only to see that they answered to any one of 
 the descriptions specified in the act, the 
 plaintiffs had now limited themselves to that 
 precise description and were bound to prove 
 it. Bell V. Janson, 1 Mau. & Sel., 201. 
 
 30. The declaration alleged that the affida- 
 vits of three persons who were present at the 
 flre were delivered to insurers as required by 
 the terms of the policy. The plaintiff proved 
 delivery of one affidavit only. Seld, insured 
 must submit to a nonsuit. Alderman v. West 
 of Scotland Ins. Co., 5 U. C, 87. 
 
 31. The plaintiff averred performance of 
 condition requiring proof of loss to be made 
 
 58 
 
 within certain time and in a particular man- 
 ner. Seld, evidence of waiver could not be 
 received; compliance, not waiver, must be 
 proved. MeFaul v. Montreal Inland Itui, Co., 
 2 U. C. Q. B., 59. 
 
 II. No VAEIANCE. 
 
 1. It is not necessary to aver an abandon- 
 ment and notice thereof, for these are mere 
 pieces of evidence to establish a total loss 
 and are admissible as such under an aver- 
 ment of " total loss." Columbian Ins. Co. v. 
 Catlett, 12 Wheat., 383. 
 
 2. The declaration stated the consideration 
 to be the payment of certain premiums quar- 
 terly. The policy stated the consideration: 
 " Of said premiums and of the statements and 
 declarations made in the application for the 
 policy. The application was not set out in 
 the declaration. Seld, no variance (citing 
 Pillman v. Fuller, 13 Mich., 113; Forbes v. 
 Insurance Co., 15 Gray, 249 ; Campbell «. New 
 England Ins. Co.. 98 Mass., 381 ; 1 Chitty PL, 
 299; Life and Fire Ins. Co. e. Johnson, 24 N. 
 J., 576; New York Life Ins. Co. t. Graham, 2 
 Duvall, 506). Jacobs v. National Life Ins. Co., 
 1 McArthur, 633. 
 
 3. The declaration alleged: " Defendant, in 
 consideration of having received the policy, 
 agreed to pay his proportion of any losses 
 and expenses, not exceeding a certain sum, 
 while the defendant was a member of the 
 company." Seld, the plaintiff was entitled 
 to recover any sum duly assessed within the 
 sum named, and that the policy was evidence 
 under the allegation. People's Mutual Fire 
 Ins. Co. V. Cla/rk, 12 Gray, 165. 
 
 4. It is not necessary to allege or prove a 
 special demand when the suit is an action of 
 account. Sturges v. Bush, 5 Day, 453. 
 
 5. The declaration averred performance of 
 all conditions precedent, but the proof showed 
 a waiver of performance. Seld, an amend- 
 ment could be allowed after verdict. Lycom- 
 ing County Ins. Co. v. ShoUenberger, 44 Fenn. 
 St., 259. 
 
 6. The contract was in the name of O'Con- 
 nor, but the evidence showed that plaintiff 
 was known by the name of Connor as well as 
 that of O'Connor. Seld, no variance. Si- 
 bemia Ins. Co. v. O'Connor, 29 Mich., 241. 
 
 7. The pleader alleged the making of the 
 policy at, to wit, Bay City, Michigan. The 
 
117 
 
 ALLEGATA ET PROBATA. 
 
 118 
 
 No yariauce. 
 
 instrument produced appeared to liave been 
 executed in the state of Illinois. Seld, the 
 variance was immaterial. Clay Fire and Ma- 
 rine Ins. Go. V. Huron SeUt atid Lumber Co., 31 
 Mich., 346. 
 
 8. Policy to mortgagee on his interest in 
 two wooden dwellings, owned by D. W. 
 Young, situated on lots 1 and 3 of the original 
 town of Aurora. The mortgage proved the 
 situation to be lots 1, 2 and 3, instead of 1 and 
 3. Seld, the declaration did not profess to de- 
 scribe the mortgage, but intended only to 
 identify the loss, and therefore there was no 
 variance. Harford Ins. Co. v. Hodden, 28 
 111., 260. 
 
 9. The defendant was declared against as 
 the Insurance Company of North America. 
 The policy read : " The president and direct- 
 ors of the Ins. Co. of North America." Held, 
 the averment was the legal effect of the words 
 of the contract and therefore no variance. In- 
 surtmce Co. of North Atnerica v. McDowell, 50 
 111., 120. 
 
 10. Action upon a parol contract to insure. 
 Upon the trial defendant gave evidence that it 
 was made subject to the conditions of the 
 usual printed policy, and the plaintiff was 
 allowed to give evidence to show that it was 
 agreed between the parties that the property 
 should be shipped on deck, notwithstanding 
 the printed conditions of the policies required 
 a special indorsement for that purpose. Held, 
 no variance. NorthtBestem Iron Co. v. JEtna 
 Ins. Co., 26 Wis., 78. 
 
 1 1. The complaint alleged an unconditional 
 contract on the part of the defendant for a con- 
 sideration specified to insure property named 
 against loss by fire for a time stated, and a loss 
 by fire within that time, and a failure to pay 
 notwithstanding plaintiff*s request Held, 
 good cause of action. Clark e. Phcenix Ins. 
 Co., 36 Cal., 168. But upon producing the 
 contract, it appeared that loss by theft at or 
 after a fire, and damage by fire, caused by 
 means of or during an invasion, insurrection, 
 riot, civil commotion, or military or usurped 
 power were excepted. Hdd, the contract was 
 not admissible under the cause of action 
 alleged, but that the plaintiff had the right, by 
 leave of court, to amend the complaint at the 
 trial. Ibid. 
 
 12. Under a general averment of perform- 
 ance, the insured may give evidence tending 
 to establish a waiver of formal defects in pre- 
 
 liminary proofs. St. Louis Ins. Co. v. Kyle, 
 11 Mo., 278. 
 
 13. Stipulated: "A particular account of 
 the loss must bo delivered to the company 
 within thirty days tbereafter," which was not 
 done. Held, the insured might, without alleg- 
 ing tlie fact in the petition, prove that defend- 
 ant had treated the stipulation as of no im- 
 portance, and had waived a perform.ince of it. 
 This would be equivalent to proof of actual 
 performance without any special averment. 
 RuaseU <o. State Ins. Co., 55 Mo., 585. 
 
 14. The plaintiff insured in his own name, 
 in trust for another, and he brought his action 
 upon the policy generally, without setting 
 forth the capacity in which he sued. The evi- 
 dence showed that three persons had a joint 
 interest in the subject insured, and that one of 
 them authorized the plaintifi' to insure his in- 
 terest. Held, the evidence supported the de- 
 claration. Peron v. Frone, 1 Barn. K. B., 304. 
 
 1 5. The plaintiffs were denominated in the 
 policy the trustees of K., P. & Co. Held, suf- 
 ficient, for it might be considered their usual 
 style and firm name. Hibbert v. Martin, 1 
 Camp., 538. 
 
 16. The declaration averred the loss by the 
 perils of the seas. The defense was that the 
 captain sailed in a foul wind contrary to the 
 pilot's directions ; that he disobeyed the pilot's 
 instructions, though informed of the conse> 
 quences ; that an anchor was put out to stop 
 her going ashore, and that the captain cut the 
 cable, and allowed her to drift on the rocks. 
 Held, barratrous, but not merely so, and the 
 loss was well averred by perils of the seas. 
 Hayman v. ParisJi, 2 Camp., 149. 
 
 17. The subject insured was captured by 
 naval and army forces acting conjointly, and 
 the interest was averred in the flag and gen- 
 eral ofiScers, commanders, and other ofttcei-s, 
 seamen, marines, and soldiers. Held, the in- 
 terest was well averred. Sterling v.Vaughan, 
 2 Camp., 225; S. C, 11 East, 619. 
 
 18. Ship was captured and condemned, and 
 the loss was averred by capture; but it ap- 
 peared that the capture was the result of an 
 agreement between her master and the captain 
 of the privateer. Held, the averment of loss 
 was sufficient, notwithstanding the barratrous 
 conduct of the master. Arcangdo v. Thompson, 
 2 Camp., 620. 
 
 19. It was averred that the ship was arrest- 
 ed by persons exercising the powers of gov- 
 
 59 
 
119 
 
 ALTERATION OF INSTRUMENTS. 
 
 120 
 
 Material. 
 
 ernment, and that the cargo was then and there 
 by said persons seized, detained and confis- 
 cated. Held, it was sustained by proof that 
 they were forcibly taken possession of by offi- 
 cers of the government. Carruihers v. Qray, 
 3 Camp., 142; 15 East, 35. 
 
 20. The declaration averred that P. and N. 
 were interested, and that the insurance was 
 made for P. and N. The evidence showed 
 that N. had become a partner after the insur- 
 ance was made, and as such was interested iu 
 the goods at the time of the loss. BeM, the 
 interest was well averred. PercJuM'd o. Whit- 
 more, 2 B. & P., 155 n. 
 
 21. The declaration averred that Messrs. H., 
 at the time of effecting T,he policy, and at the 
 time of the loss, were interested in the subject 
 insured ; but, it appeared that Messrs. H., be- 
 fore the policy was made, had admitted an- 
 other mercantile house to an interest in the 
 subject insured. Meld, no variance. Page v. 
 Fry, a B. & P., 240; 3 Esp., 185. 
 
 22. It was alleged in the declaration that at 
 the respective times of effecting the policy, 
 and of the loss, the plaintiff was interested in 
 the ship and freight respectively. Held, the 
 allegation of interest at the time of making the 
 policy was immaterial, and not to be proved. 
 Rhind v. Wilkinson, 2 Taunt., 237. 
 
 23. It was averred in the declaration that 
 the plaintiff, together with E. M., was inter- 
 ested in the ship. Insured executed a bill of 
 sale to E. M., Dec. 7, but prior to that time he 
 was the sole owner. Registration was not 
 completed till the 19th. Held, the averment 
 was good. Ritchie ». 8t. Ba/rbe, 4 Taunt., 768. 
 
 24. If the ship insured was foreign when 
 the policy was underwritten, and the loss hap- 
 pened, no interest need be averred in- the 
 declaration ; it is sufficient to state the fact that 
 she was foreign. Eellner v. Le Mesuirer, 4 
 East, 396; 1 Smith, 72. 
 
 26. It was alleged in the declaration that 
 she sailed after the making of the policy. The 
 proof was that she sailed before it was made. 
 Held, the averment did not arise out of the 
 contract, and that omitting it, the declaration 
 would be perfect. Peppin v. Solomons, 5 Term, 
 496. 
 
 26. Declaration alleged delivery of a partic- 
 ular account of the loss, which was traversed 
 specially. Upon the ti-ial, to support the 
 plaintiff's case, he was allowed to put in a 
 correspondence between the parties from 
 60 
 
 which the jury might infer that the insurer 
 had waived the condition. Pirn v. Reid, 6 M. 
 i& G., 1 ; 6 Scott, N. R.,983; 12 L. J. C. P., 299. 
 27. "Barratry of the master and all other 
 perils and misfortunes which shall happen to 
 the prejudice of the ship." The breach alleged 
 was that by the fraud and negligence of the 
 master she was totally lost. Held, the aver- 
 ment supported a loss by barratry. Knight v. 
 Cambridge, 2 Ld. Bay., 1349 ; 1 Strange, 581 ; 
 8 Mood., 230. 
 
 ALTERATION OP INSTRUMENTS. 
 I. Material. 
 
 II. IliIMATEBIAIi. 
 
 I. Mateeial. 
 
 1. The defendant subscribed the usual 
 printed form of policy, upon ship and cargo, 
 (but the ship was not named) at and from Lon- 
 don to any port or ports in the Baltic. "Words 
 descriptive of the specific subject of insurance 
 were not inserted, nor any value declared, nor 
 any sum mentioned ; 100 hhds. of fine sugar, 
 60 hhds. molasses and 20 tons of fustic, were 
 afterwai-ds inserted, and the policy was sub- 
 scribed by several underwriters. The defend- 
 ant had never consented to the alteration. 
 Held, the defendant was not liable on the pol- 
 icy. Langh»rn r>. Cologan, 4 Taunt., 330. 
 
 2. After subscription, insured struck out the 
 date when the ships were warranted to sail, 
 and inserted in the memorandum a later date, 
 intending to get the time enlarged, to which all 
 the insurers did not assent. Held, the policy 
 was destroyed, and that for a ship which 
 sailed prior to the date stricken out and lost, 
 there could be no recovery. Fairlie v. 
 Christie, 7 Taunt., 416 ; 8. C, Holt, N. P., 381 ; 
 1 Moore, 117. 
 
 3. The policy was altered by inserting the 
 words, " or Weymouth," aiter " Portsmouth," 
 to which some of the insurers consented. 
 Held, no recovery could be had against an in- 
 surer who had not consented to the alteration, 
 although upon being informed of the altera- 
 tion after the loss, he said he would not take ad- 
 vantage of it. Campbell ■o. Christie, 2 Stark., 57 
 
 4. A policy was altered, as to the subject 
 
121 
 
 ALTERATIONS AND REPAIRS. 
 
 122 
 
 MisceUaneous. 
 
 matter, after it had attached, but was not re- 
 stamped. Held, it was not a valid instrument. 
 French «. PaMen, 1 Camp., 72, 180 b ; 8. C, 9 
 East, 351. 
 
 5. Policy from Cuba to Liverpool, with 
 liberty on that voyage to proceed to, touch and 
 stay at any port or places whatever, and with 
 leave to discharge or take in cargo at any 
 ports or places she might touch. After sub- 
 scription, the words, " with leave to call off 
 Jamaica," were interpolated, to which all as- 
 sented except the defendant, who was absent 
 and therefore not applied to. She sailed with 
 ten men, eight to navigate to Liverpool, and 
 two to Jamaica, being unable to procure a full 
 crew for Liverpool. She touched at Jamaica 
 to land the two and get others in their stead, 
 and was lost on the way home. Held, the al- 
 teration was material and the policy avoided. 
 Foi-eshaw v. Chawbert, 3 B. & B., 158; 6 Moore, 
 3G9. 
 
 6. She was insured for a voyage from Vir- 
 ginia to Rotterdam, with leave to call at a 
 port in Dngland, but after some of the under- 
 writers had signed, a memorandum was in- 
 dorsed changing the point of destination tu 
 Hull. Hull was not a place in the course be- 
 tween Virginia and Rotterdam. Seld, all the 
 insurers were released except those who signed 
 the indorsement. Reversing interlocutors of 
 Scotch court. Laird v. Mobertson, 4 Bro. P. 
 C, 488. 
 
 II. Immaterial. 
 
 1. On ship at and from L., to her port or 
 ports of discharge, and loading in Africa and 
 African islands, and during h6r stay there to 
 sell, barter, exchange, load and unload, and at 
 and from thence to L., or final port of dis- 
 charge in United Kingdom, with liberty to 
 sail and touch at any ports, etc. He inserted 
 the words " to trade," immediately after the 
 words, " during her stay," to which some of 
 the insurers assented, but one of them refused 
 to pay a loss under the policy. Held, as the 
 policy originally stood, she had aright to sell, 
 barter and exchange, load and unload, etc., 
 which words were descriptive of trading, 
 hence, the words introduced by insured were 
 immaterial, and did not affect its validity. 
 Sanderson v. 8ymondi, 1 B. & B., 436 ; 4 Moore 
 43. 
 
 2. " On the Three Sisters from Cadiz and 
 
 Seville to Liverpool." After it was signed tlie 
 insured inserted, " Tres Hermanas," after the 
 word, " Sisters," and, "both or eithei," after 
 the word, " Seville." Held, it did not affect the 
 policy, for the legal operation of the instru- 
 ment was not affected by the insertions. Clap- 
 liwtn V. Cologan, 3 Camp., 383. 
 
 3. On ship, Liverpool to Africa, and during 
 stay there, with liberty to sell, barter and ex- 
 change goods at all or any of the ports she 
 might call at and. proceed to. After the words, 
 " stay there," insured inserted, " sell, barter 
 and exchange goods and trade." Held, the al 
 teration was not material. Sanderton v. M(t 
 Cullom, 4 Moore, 5. 
 
 ALTERATIONS AND REPAIRS. 
 
 (See KBPBuaBNTATioHs ; Use and Occupation.) 
 
 1. Stipulated: "Not to be used or appro- 
 priated for carrying on. any trade, business or 
 vocation specified in the memorandum," in 
 which was mentioned, " houses, building or re- 
 pairing." Held, insured had the right to make 
 ordinary or necessary repairs, unless they 
 increased the risk, of which the jury were the 
 judges. Chant v. Howard Ins. Co., 5 Hill, 10. 
 
 2. " To be void if the building shall be used 
 for any trade or purpose denominated haz- 
 ardous or extra hazardous, or for storing any 
 articles denominated hazardous or extra haz- 
 ardous." The application described the 
 premises " Occupied by G. as a private dwel- 
 ling." The conditions annexed declared, 
 houses, building or repairing are insurable 
 only at special rates ; and oils and turpentine, 
 were by the same conditions denominated 
 hazardous and extra hazardous. The buila- 
 ing was consumed by fire while being re- 
 paired and painted; oils and turpentine being 
 in it for that purpose. Held, the risk of ordi- 
 nary repairs was covered by the policy ; that 
 introducing oil and turpentine for the purpose 
 mentioned was not storing them, within the 
 intention of the parties. O'Neil ®. Buffalo 
 Fire Ins. Go., 3 If. Y., 122. 
 
 3. In the application, insured stated : " The 
 works are in good condition, and there is a 
 forcing pump designed expressly for protec- 
 tion against fire, at all times in good condi- 
 tion for use." Insured interrupted the sup. 
 
 61 
 
123 
 
 AMENDMENTS. 
 
 124 
 
 At and after trial. 
 
 ply of water for several days, while a new 
 stone bulk head was being substituted in 
 place of a wooden one which was badly de- 
 cayed. A wooden bulk head might have been 
 put in in one day. The fire occurred while the 
 repairs were being made, and at the time the 
 forcing pump could not be used for want of 
 Water. Held, diverting the water and dis- 
 abling the pump did not avoid the policy if the 
 repairs were made without unnecessary delay. 
 Tovmsend v. Northwestern Ins. Oo., 18 N. T., 
 168. 
 
 4. Stipulated: "The working of carpen- 
 ters, roofers, tinsmiths, etc., in building, alter- 
 ing or repairing the premises, will vitiate the 
 policy unless permission be given in writing, 
 except in dwelling houses only, where five 
 days in every one year are allowed for inci- 
 dental repairs." Insured procured a carpen- 
 ter's and mechanic's risk for two months, and 
 made extensive repairs. The work was dis- 
 continued and after the two months had ex- 
 pired, insured commenced further repairs, 
 takirig oflF decayed and putting on new siding. 
 This had progressed about three days when 
 the house was destroyed by an incendiary. 
 Reld, incidental repairs, and as it had not ex- 
 ceeded five days, insurers were liable. Sann 
 c. Borne Ins. Co., 59 N. T., 387. 
 
 5. Stipulated : " To be void in case repairs 
 or additions shall be made without insurer's 
 consent indorsed on the policy." The agent 
 who accepted the risk, made and delivered 
 the policy, knew that additions and altera- 
 tions were being made some time after he de- 
 livered the policy, but he made no objec- 
 tion to their continuance. Beld, evidence to 
 show that the condition was waived. Hoteh- 
 kiss V. ffermania Fire Ins. Co., 5 Hun. (N. T.), 
 90. 
 
 6. The insurer defended on the ground that 
 the building had been altered. Held, insured 
 might prove that the alteration was contem- 
 plated and insurer informed of it at the time 
 the policy was made; and if the alteration 
 did not conform to the intention, that would 
 not affect the policy, unless the risk was 
 thereby increased. Perry County Ins. Co. v. 
 Steioart, 19 Penn. St., 45. 
 
 7. Tenant told the owner he desired to 
 make some alterations, in order to adapt the 
 bouse to his business. Policy prohibited al- 
 terations by the insured. Held, it was proper 
 to leave to the jury the question, whether ma- 
 
 terial alterations were contemplated by both 
 parties. Padelford v. Providence Mutual Fire 
 Ires. Co., 3 R. I., 102. 
 
 8. " On a stone building with a stone addi. 
 tion on one side and a frame addition on the 
 other side." Insured took out eighteen feet of 
 the frame addition and carried it to the other 
 end of the frame addition, thereby separating 
 the stone building from the frame addition. 
 The policy did not prohibit alt€rations or re- 
 pairs. Held, the right to repair and alter 
 buildings is incident to the ownership, and 
 such repairs and alterations which do not 
 change the risk or increase it may be made 
 without affecting the validity of the policy 
 (Welker, J., N. D. Ohio). Dom v. Cfermania 
 Ins. Co., 8 Chi. Leg. News, 156. 
 
 9. Stipulated: "The working of carpen- 
 ters, roofers, tinsmiths, gas fitters, plumbers 
 or other mechanics, in building, altering or 
 repairing the premises without permission in 
 writing shall vitiate the policy." Insured kept 
 a carpenter or two around the building the year 
 through, constantly making repairs to keep 
 the building in a thorough condition. Held, it 
 did not affect the right of insured to recover, 
 for it could not be understood as prohibiting 
 the casual patching up of the building. 
 FrarMin Fire Ins. Co. v. Chicago Ice Co., 36 
 Md., 102. 
 
 AMBIGtJITY. 
 
 iSee Etxdehce, III, c) 
 
 AMENDMENTS. 
 
 I. At and after trial. 
 II. After judgment. 
 
 III. New parties. 
 
 IV. Generally. 
 
 I. At A21D APTEE TRIAL. 
 
 1. Under the act of 1806, the declaration 
 may be amended after the counsel have ar- 
 gued the case. Franklin Fire Ins. Oo. s. J'i»- 
 lay, 6 Whart., 483. 
 
 2. The plaintiff omitted to set forth in her 
 
125 
 
 AMENDMENTS. 
 
 126 
 
 After judgment — Generally. 
 
 pleadings one of the conditions of tlie con- 
 tract. Held, proper for tlie court to allow an 
 amendment on tlio trial by inserting tlie omit- 
 ted condition. Ifeio Tork Ltfe Ins. Co. e. 
 Hendren, 24 Grat, 636. 
 
 3. The plaintiff was permitted to amend on 
 the trial. Seld, it conld not be reviewed in 
 this court. Fartnera and Mechanic Ins. Co. 
 V. Simmom, 30 Penn. St, 299. 
 
 4. Defendant introduced the application, 
 proved its execution by plaintiff and moved 
 that " plaintiff be called." The court permit- 
 ted plaintiff to amend by setting out the ap- 
 plication and making it a part of the com- 
 plaint, ffeld, the amendmennt put the case 
 in the same plight and condition it would 
 have been in had the matter introduced by 
 the amendment been set out in the complaint 
 when it was originally filed. Wynne v. Liv- 
 erpool, London and Olohe Ins. Co., 71 N. C, 
 121. 
 
 5. The sheriff's return showed service Sept. 
 32, 1872, on the president by reading and deliv- 
 ering a copy thereof to him on that day. Judg- 
 ment was rendered November 19, by default. 
 The court allowed the sheriff to amend the 
 return by which it appeared that the oflScer 
 delivered to and left with the president a copy 
 of the writ. The record showed that de- 
 fendant's counsel was present when the 
 amendment was made. Meld, no error 
 (citing O'Conner «. Wilson, 57 III., 226). 
 National Ins. Co. v. Clumber of Commerce, 69 
 111., 22. 
 
 6. Any variance between the pleading and 
 the instrument filed, whether it be matter of 
 description or legal effect may be amended at 
 any time, as of course, before judgment, and 
 is no ground for a continuance (citing 2 G. 
 & H., 104, sec. 78; Maxwell o. Day, 45 Ind., 
 509). Mutual Benefit Life Int. Co. t. Cannon, 
 48 Ind., 264. 
 
 7. The conditions of the policy were not 
 set up in the complaint, and the policy was 
 objected to for that cause. Held, the court did 
 not err in allowing the insured to amend up- 
 on the trial, and to make the policy and its 
 conditions a part of the complaint. Bonner 
 V. Home Ins. Co., 13 Wis., 677. 
 
 8. There was a material variance between 
 the allegations and the proof of fact at the 
 trial. Heid, the court had the power to allow 
 plaintiff to amend at the trial. Clark v. Phm- 
 nix Ins. Co., 36 Cal., 168. 
 
 II. AfTEE JITDGMEKT. 
 
 1 . The defendant pleaded four pleas in bar. 
 The plaintiff took issue on three, and demurred 
 to the fourth, and there was judgment upon 
 the demurrer for the defendant. The plaintiff 
 went to ti'ial on the three pleas, taking no no- 
 tice of the judgment. Seld, the judgment up- 
 on the demurrer covered the whole case, and 
 the plaintiffs were compelled to submit to a 
 judgment against them. But after three terms 
 had elapsed, the plaintiff asked to be allowed 
 to reply to the fourth plea on the ground that 
 the omission was caused by mistake of coun- 
 sel. Granted upon payment of costs. Sogers 
 V. Niagara Ins. Co., 2 Hall (N. Y.), 559. 
 
 2. The circuit court has power to amend 
 the record nunc pi'o tunc after the cause has 
 been appealed to the supreme court (citing 
 De Kalb Co. v. Hixon, 44 Mo., 341). Jones v. 
 St. Joavph Fire & Marine Ins. Co., 55 Mo., 342. 
 
 III. New pakties. 
 
 1, Where several plaintiffs joined in an ac- 
 tion on a contract made to one, and a verdict 
 was rendered for the defendant, the court will 
 grant leave upon a motion for a new trial to 
 amend by striking out the names of all the 
 plaintiffs except his in whose name the con- 
 tract was made, and allow the action to pro- 
 ceed in the name of one. Finney v. Bedford 
 Commercial Ins. Co., 8 Met., 848. 
 
 2. The action was commenced in the name 
 of the administrator. A demurrer was sus- 
 tained for want of proper parties, and the court 
 gave leave to dismiss as to the administrator, 
 and to substitute widow and heirs. Heild, au- 
 thorized (sec. 1, ch. 1, R. S., 1874). Teatonia 
 Life Ins. Co. v. Mueller, 77 111., 22. 
 
 lY. Genekallt. 
 
 1. After the auditor made his report, au 
 amended declaration was filed. Held, the 
 court would infer that leave had been given to 
 file it. Looney v. Looney, 116 Mass., 283. 
 
 2. Insured obtained leave to amend the de- 
 clai-ation by making additional counts, de- 
 scribing the same contract, except as to the 
 date. Hdd, amendments are allowed if con- 
 sistent with the original declaration, and this 
 was within the rule. Warren v. Ocean Ins. Co., 
 16 Me., 439. 
 
 63 
 
127 
 
 ANIMALS— APPEALS. 
 
 128 
 
 Miscellaneous. 
 
 3. The complaint was originally ex delicto. 
 The plaintiff moved to amend and add a count 
 ex contractu. Held, no amendment setting 
 forth a new and separate cause of action can 
 be allowed under the code (sec. 3480). Groghan 
 V. Wnderariters^ Agency, 53 Ga., 109. 
 
 4. The obligee's names were by mistake 
 omitted in the attachment bond, ffeld, it was 
 competent to insert their names in the blank 
 left for that purpose. Sutherlin v. Underuyrit- 
 ert' Agency, 53 Ga., 442. 
 
 5. After judgment by default, the defendant 
 obtained an order to set it aside, and leave to 
 answer. The plaintiff appealed from the 
 order, and it was reversed with leave to make 
 application to amend. Sduetsel v. Oermantoum 
 Farmers Mut. Ins. Co., 33 Wis., 413. 
 
 6. The court refused to permit the defend- 
 ant to amend the answer, but the amendment 
 tendered no new issues; all the matter of de- 
 fense set forth in it was admissible under the 
 other pleadings. Held, no error. Ferrer «. 
 Home Mviual Ins. Co., 47 Cal., 416. 
 
 7. Policies of .insurance were effected on 
 goods alleged to have been purchased and 
 shipped, and actions had been brought on the 
 policies for an alleged loss. The insurers 
 filed this bill of discovery, charging that the 
 goods had not been purchased; afterwards 
 obtained leave to amend the bill upon a sug- 
 gestion that the firm had not sufiicient capital 
 to make the purchase. Held, the permission 
 to amend in that respect did not authorize 
 insurers to raise inquiries as to the general 
 solvency of insured, nor as to their dealings 
 and transactions from the commencement 
 of their partnership. Jamon c. Solarte, 3 
 Ton. & Coll., 137; 6 L. J. (N. S.), Ex. in Eq.. 
 75. 
 
 8. The defendant pleaded an opening made 
 between the premises insured and the build- 
 ing adjoining. At the trial, it appeared that 
 defendant had misdescrihed the opening, but 
 it also appeared that the alteration did not 
 contribute to the loss. Held, it was not error 
 to refuse an amendment to the plea. McKen- 
 eie V. Times & Beacon Ins. Co., 17 U. C. (Q. B ), 
 
 ANNUITANT AND ANNUITEE. 
 
 The grantee of an annuity effected a policy 
 on the grantor's life, at his own expense. The 
 grantor had the right to redeem on payment of 
 £3,500. The grantee covenanted to assign any 
 policy which might be effected in respect of 
 the annuity, but the grantor did not covenant 
 to keep the policy in force. The policy be- 
 came valuable. The grantor gave notice and 
 declared his election to take it, and a surren- 
 der of the policy was threatened. This bill 
 was filed to compel an assignment of the pol- 
 icy. Held, the grantee had the right to de- 
 cline to keep the policy in force, but had no 
 right to surrender it for his own profit. Hawk- 
 ins f). Woodgate, 7 Beav., 565. 
 
 ANSWERS. 
 
 (See ArPMCATioN; Incuxbbahciis ; Siceitesb, Dis- 
 ease ob Ekplotmest or Physician; Titlb; Eip. 
 BsaENTATioKs; Wasbanties.) 
 
 ANIMALS. 
 
 (See CoNBTECCTioN, V: Poiior.VIU add IX.) 
 64 
 
 APPEALS. 
 
 1. Plaintiffs brought this suit to recover 
 $4,000 for the loss of certain property insured 
 by defendants. It was stated in the complaint 
 that a certain clause in the policy descriptive 
 of the subject insured was inserttd by mistake, 
 that the defendants, taking advantage of that 
 clause, had refused to pay the loss. The 
 plaintiffs prayed a recovery of the $4,000, and, 
 if necessary, to reform the policy by striking 
 out the clause in question. The court dis- 
 missed the complaint. Plaintifls then discov- 
 ered that a new suit would be barred by one 
 of the provisions of the policy, more than 
 twelve months having elapsed since the loss 
 occurred. Plaintiffs then moved to amend 
 the order of dismissal by inserting leave to 
 file a complaint at law in the same action, 
 which motion was granted. This order was 
 appealed to the general term, where it was re 
 versed, and the plaintiffs appealed from that 
 reversal to this court Held, there was no pro- 
 vision in the law authorizing such an appeal. 
 
129 
 
 APPEARANCE— APPLICATION. 
 
 130 
 
 What matters stated are warranties. 
 
 Ifeie York lee Co. v. Nortkaestem Ins. Co., 38 
 K. T., 357; s. c, 32 Barb., 534; 11 Abb. Pr., 
 419; 20 How. Pr., 424; 13 Abb. Pr., 414. 
 
 8. Aa order was made at special term, de- 
 Dying a motion to strike from tlie complaint 
 certain allegations not relevant, ffeld, no ap- 
 peal would lie from it (citing Crucible Co. 
 D. Steelworks, 9 Abb. Pr. (N. S.), 185. See 
 Tanton «. Groh, 8 id., 385, and note where the 
 authorities on this subject are collated). Siighea 
 V. MereantUe Mut. Ins. Go., 10 id., 37 ; 41 How. 
 Pr., 253. 
 
 APPEARANCE. 
 
 "What it waives. 
 
 1. If the corporation appears specially and 
 moves to dismiss on the ground that service 
 cannot be made on a foreign corporation, and 
 then demurs, the validity of the notice upon 
 the agent is waived. Franklin Ins. Co. v. 
 MeCrea, 4 Greene, 329. 
 
 2. The citation was addressed to "W. B. 
 Morris & Co., Agents. They appeared by at- 
 torney and filed a denial. Held, the defect 
 was cured by the answer. La Soeiete, etc., o. 
 Morris, 24 La. An., 347. 
 
 APPLICATION. 
 
 I. What matters stated are warbanties. 
 
 n. ABB NOT WARRANTIES. 
 
 I. "What matters stated are wab- 
 
 EANTIES. 
 
 1. The application, being partof the policy, 
 stated: "There is one stove in the building; 
 pipe passes through the window at the side of 
 the building; there will however be a stone 
 chimney built, and the pipe will pass into it 
 at the side." Sdd, a warranty that the chim- 
 ney should be built within a reasonable time,, 
 and a violation of it avoided the policy. And 
 though the secretary indorsed, "Consent is 
 given that the within policy remains good, 
 notwithstanding the stove has been removed," I 
 5 
 
 that was no waiver of the warranty. Mur- 
 doek v. Chenango County Mutual Fire Ins. Co., 
 a N. Y., 310. 
 
 2. Policy made the application and descrip- 
 tion therein part of the contract, ndd, the 
 statements in the application were warranties, 
 and anything therein not literally accurate 
 avoided the policy. Held, also, as the appli- 
 cation described the mill as a grist mill, the 
 use of a turning lathe and work bench in it 
 for purposes other than necessary repairs 
 avoided the policy. Held, also, the descrip- 
 tion of the location of the mill with reference 
 to other buildings was also incorrect, and that 
 it avoided the policy. Jennings v. Chenango 
 County Mut. Ins. Co., 3 Denio, 75. 
 
 3. The policy was founded upon a printed 
 and written application. The representations 
 contained in the latter were warranted as true. 
 Held, the policy was admissible in evidence 
 without the application. Edington v. Mviual 
 Life Ins. Co., 5 Hun. (N. Y.), 1. 
 
 4. Statements in an application " upon the 
 faith of which " the policy is made, stipu- 
 lated: "If they shall he found untrue in any 
 respect, the policy shall be void." Held, the 
 statements in the application were warranties, 
 and if untrue, although upon a point imma- 
 terial, the policy was void. Miles v. Connecti- 
 cut Mut. Ins. Co., 3 Gray, 580. 
 
 5. The application required an answer to 
 the following interrogatory : " How are the 
 several stores occupied ? State fully, giving 
 the tenants and the nature of the . business 
 done by each." Answer. " See plan." C. 
 and S. occupied a part of the buildings as a 
 machine shop and another part with wood 
 work, connected with their business. The 
 plan did not disclose these facts. Held, in- 
 surer was not liable, because the policy re- 
 quired a full and correct description as to all 
 matters inquired about. Abbott v. Shawmut 
 Mutual Fire Ins. Co., 3 Allen, 213. 
 
 6. Stipulated : " The statements in the ap- 
 plication for this policy, and on the faith of 
 which it is issued, are in all respects true and 
 without the suppression of any fact relating 
 to the health and circumstances of the in- 
 sured aflfecting the interests of this company." 
 Held, the statements and declarations made in 
 the application were warranties of the facts 
 stated, and must be proved true in all particu- 
 lars. KeUey v. Universal Life Ins. Co., 35 
 Conn., 335. 
 
 65 
 
131 
 
 APPLICATION. 
 
 133 
 
 What are not ■warrantiea. 
 
 II. What are not waeeanties. 
 
 1. Insurer's agent made an examination of 
 tlie buildings, and reported to the company. 
 The policy referred to that report. Held, it 
 ■was to be regarded as a description of the 
 premises, and not a warranty. Delenguemere 
 V. Tradesmen's Ins. Go., 2 Hall, 589. 
 
 2. An application for insurance by letter, 
 Ti-ith a diagram of the situation of buildings 
 surrounding that to be insured, was referred to 
 generally in the policy, but not expressly made 
 a part of it. Held, not a warranty. Stebbina 
 ®. Globe Ins. Co., 3 Hall, 632. 
 
 3. The application was not referred to in 
 the policy. Held, the statements in it were 
 not warranties. Jeferson Ins. Co. v. Cotheal, 
 7 Wend., 72. 
 
 4. The policy required the insured to set 
 forth in the application whether the property 
 was incumbered, and to what amount; also 
 whether insured had an estate less than fee, 
 and its nature. The application was silent as 
 to these points. Held, no defense to the action. 
 Bohn v. Farmers Joint Stock Ins. Co., 5 Lans., 
 275. 
 
 6. Neither the policy nor the application 
 warranted the truth of the answers made to 
 the several interrogatories set forth in it. Held, 
 the statements in the application were not war- 
 ranties, they were nothing but representations. 
 Cushman v. United States Life Ins. Co., 4 Hun. 
 (N. Y.), 783. 
 
 6. Policy made subject to terms and condi- 
 tions annexed, but no reference was made to 
 the application. Held, the answers in the ap- 
 plication were not warranties, and that the 
 answer in it, " There are in each room casks 
 kept "full of water constantly," was a represen- 
 tation merely, and neglect of insured's servants 
 to keep them constantly full of water did not 
 avoid the policy. Daniels v. Hudson River 
 Fire Ins. Co., 13 Cush., 416. 
 
 7. Insurance on goods. Insured in their 
 application, which was mnde part of the pol- 
 icy, answered, as to how the buildings were 
 warmed and how the stovepipes were secured : 
 " Counting-room warmed with coal stove, one 
 stove; funnel and pipe well secured. No 
 lights used in the building evenings." Held, 
 it did not bind the insured to keep the funnel 
 and stove secure while in use. Held, also, 
 the insurer was liable for a fire made in a 
 stove which was in an unsafe condition at the 
 
 66 
 
 time, contrary to the expressed directions of 
 the insured. Loud v. Citizens Mut. Ins. Co., 2 
 Gray, 221. 
 
 8. Policy upon the life, of C, payable to 
 him, his executors, administrators and assigns 
 for the benefit of the plaintiff, his brother's 
 wife, upon condition that: "If any of the 
 statements made by, or in behalf of, or with 
 the knowledge of the insured, to the company 
 as the basis of or the negotiations for the con- 
 tract, shall be found in any respect untrue, 
 then it shall be void." The application asked 
 whether he then or ever had bronchitis, con- 
 sumption, coughs prolonged, disease of the 
 lungs, spitting of blood? To which he an- 
 swered, " No." He was then asked whether 
 he ever had any serious illness, local disease 
 or personal injury; if so, of what nature and 
 when? To which he answered, "No." There 
 was the following question in the application : 
 " Are you aware that any fraudulent or untrue 
 answers or any concealment of facts or non- 
 compliance with the terms and conditions of 
 the policy will vitiate the insurance?" An- 
 swer : " Yes." Held, the statements in the ap- 
 plication were not warranties, for there were 
 no words to indicate that such was the inten- 
 tion of the parties ; they were representations ; 
 and it was a question for the jury to determine 
 whether the facts in proof were so far incon- 
 sistent with the answers in the application 
 as to establish a material misrepresentation. 
 Campbell v. New England Life Ins. Co., 98 
 Mass., 381 ; Southern Life Ins. Co. v. Wilkinson, 
 53 Ga., 535. 
 
 9. Stipulated: "Reference being had to the 
 application of the said M. & B., which forms 
 a part of the policy, for a more particular de- 
 scription of the property insured." Held, 
 matters stated in the application were descrip- 
 tion merely and not warranties. Cumberland 
 VaUey Mutual Protection Co. v. Mitchell, 48 
 Penn. St., 874. 
 
 10. The application must represent truly, 
 whatever is material to the risk; but if it was 
 written by an agent of insurer, and he was 
 aware of facts material to the risk and did 
 not set them forth in it, his knowledge will 
 estop insurer from insisting upon the conceal- 
 ment. Marshall v. Columbian Mutual Fire 
 Ins. Co., 27 N. H., 157. 
 
 11. The application stated that neither cot- 
 ton, nor woolen waste, nor rags, were kept in 
 or near the property insured. At the time of 
 
133 
 
 AKBITRATION AND AWARD. 
 
 134 
 
 "When the agreement to arbitrate is not binding. 
 
 the fire there was about 1,500 lbs. rags in the 
 store, taken in from time to time. Seld, no 
 breach of the contract, because it did not ap- 
 pear affirmatively that they were in the prem- 
 ises at the time the policy was made. Oould 
 V. York Gouwty Mutual Fire Im. Co., 47 Me., 403. 
 
 1 2, Insured agreed in the application that 
 "The matters stated therein are a just and 
 true exposition of all the facts and circum- 
 stances in regard to the condition, situation 
 and value of the property to be insured, so far 
 as the same are known to the applicant and 
 material to the risk." The policy stipulated: 
 " If it were made upon a survey and descrip- 
 tion of tlie property insured, such survey and 
 description shall be taken and deemed to be a 
 part of such policy, and a warranty on the 
 part of the insured." The application signed 
 by insured contained a survey and description 
 of the property. Held, the statements con- 
 tained in the application were not absolute 
 warranties ; the variances in the value and de- 
 scriptions were questions for the jury, and the 
 burden was upon insurers to establish the 
 materiality of the statements. uStna Ins. Co. 
 V. Gruie, 6 Minn., 83. 
 
 13. The policy was "issued and accepted 
 upon condition that if any of the statements or 
 declarations made in the application, upon the 
 faith of which the policy is issued, shall be 
 found in any respect untrue, then the policy 
 shall be void." The application directed the 
 applicant to answer each of the questions " to 
 the best of your knowledge and belief, briefly 
 but explicitly," and immediately preceding 
 the applicant's signature the application 
 stated : " The answers to the foregoing questions 
 shall form the basis of the contract, and any 
 willfully untrue or fraudulent answers shall 
 render the policy void." The policy stipulated 
 that all answers were true. Held, insurers 
 could not be allowed to require one degree of 
 truthfulness in the application and another in 
 the policy, for that were to impute to them 
 dishonesty, which the law would not presume, 
 and if proven, would not uphold ; therefore, an 
 instruction which required the plaintiflf to 
 show that the statements mentioned in the ap- 
 plication, whether warranties or representa- 
 tions, were substantially true, and that a mis- 
 statement, unless willful and fraudulent, 
 would not avoid the policy, correctly stated 
 the law. Washington Life Ins. Co. v. Haney, 
 10 Kan., 525. 
 
 14. The policy was founded upon a decla- 
 ration which stated, that the party had no 
 disease or symptoms of disease, was then in 
 good health and ordinarily enjoyed good 
 health, that no material circumstances or in- 
 formation touching the health or habits of 
 the life proposed, with which insurers ought 
 to be made acquainted, were withheld. Held, 
 it imported a warranty only to the effect, that 
 the declarant, according to her own knowl- 
 edge and reasonable belief, had been free from 
 disease or symptoms of disease material to 
 the risk. It did not import a warranty against 
 latent disease discoverable only by a post 
 mortem examination, or symptoms disclosed 
 subsequently to the making of the declara- 
 tion. Hutchinson v. National Xoan Ass. 8oe., 
 7 C. C. S., 467; 17 Scott Jur., 253. 
 
 ARBITRATION AND AWARD. 
 
 I. When the agkebment to abbitkatb 
 
 IS not binding. 
 II. When it is a condition pkkcedbnt. 
 
 III. What is a waiver of the agreement. 
 
 IV. When the award is conclusive. 
 
 V. not conclusive. 
 
 I. When the agreement to aebiteate 
 IS not binding. 
 
 1. One of the by-laws provided: " Any dif- 
 ference or dispute in reference to any loss 
 sustained or alleged to be sustained shall be 
 referred to, and be determined by, referees 
 mutually chosen by the insured and the di- 
 rectors, and no policy holder shall be entitled 
 to maintain the action until he shall have 
 made the offer to refer." Held, the stipula- 
 tion was void, because it goes to the root of 
 the action, and was not confined to the mode 
 of settling the amount of the damage; it was 
 an attempt to oust the courts of their jurisdic- 
 tion, by preventing the suffering party from 
 appealing to them. TroU ®. City Ins. Co., 1 
 Cliff., 439. 
 
 2. Stipulated: " That noTiolder of any policy 
 shall be entitled to maintain any action there- 
 on until he shall first have offered to submit 
 his claim to said referees, mutually to be 
 chosen by the insured and the directors of 
 
 67 
 
136 
 
 ARBITRATION AND AWARD. 
 
 136 
 
 When the agreement to arbitrate is not binding. 
 
 said company." JTeW, void, as against public 
 policy ; but even if that were not so, insurers 
 waived their right to arbitration, because they 
 had proceeded to take possession of the vessel 
 for the purpose of making repairs. Cobb v. 
 Neto England Mutual Marine Ins. Co., 6 Gray, 
 192. 
 
 3. Stipulated : " In case any dispute shall 
 arise in relation to auy alleged loss, it shall 
 be referred to referees,, to be mutually chosen 
 by the parties, and no policy holder shall 
 maintain any action thereon until he shall 
 have offered to submit his claim to arbitra- 
 tion." Held, the stipulation was void, for the 
 parties cannot entirely close access to the 
 courts of law. The, law, and not the contract, 
 
 ■prescribes the 'remedy; and parties have no 
 more right to enter into stipulations against 
 a resort to the courts than they have to pro- 
 vide a remedy prohibited by law. Such stip- 
 ulations are repugnant to the rest of the con- 
 tract, because they assume to divest the coui'ts 
 of their jurisdiction (citing Livingston v. 
 Ealli, 5 El. & Bl., 132; Scott «. Avery, L. «& 
 Eq., 536; 36 Eng. L. & Eq., 386). StepTienson 
 V, Piseaia^a Fired: Marine Ins. Co., 54 Me., 55. 
 
 4. The agreement in the policy to arbitrate 
 does not oust the courts of their jurisdiction. 
 Allegre «. Maryland Ins. Co., 6 H. & J., 408 ; 
 affirmed, 3 G. & J., 136. 
 
 5. Stipulated : " In case of any difference of 
 opinion as to the amount of loss or damage, 
 such difference shall be submitted to the judg- 
 ment of two disinterested and competent 
 men mutually chosen, who may select a third, 
 whose award shall be conclusive and binding 
 upon both parties. The plaintiffi refused to 
 submit to arbitrators. Held, it was not a con- 
 dition precedent, and plaintiff was entitled to 
 maintain the action. Liverpool, London & 
 Globe Ins. Co. v. Oreighton, 51 Ga., 95. 
 
 6. An agreement to arbitrate, where no ref- 
 erence has been made, cannot oust the courts 
 of their jurisdiction. Kill v. Holliater, 1 Wils., 
 129. 
 
 7. Policy provided : " If any difference shall 
 arise on any claim, it shall be immediately 
 submitted, to arbitration, and no compensation 
 shall be payable till after an award determin- 
 ing the amount." The company denied all 
 liability. Held, the action could be main- 
 tained though there had been no submission. 
 Goldstone v. Osborne, 2 C. & P., 550. 
 
 8. Stipulated: "In case any difference or 
 68. 
 
 dispute shall arise between the insured and 
 the company, touching any loss or damage, or 
 otherwise in respect of any insurance, such 
 difference shall be submitted to the judgment 
 and determination of two indifferent persons 
 as arbitrators, one to be chosen by the com- 
 pany and the other by the insured, and these 
 shall nominate a third person to be an arbi- 
 trator with them, and the award in writing of 
 any two of the three so chosen shall be con- 
 clusive and binding on all parties." Held, 
 this condition was collateral to the agreement 
 to pay, hence insured was not bound to await 
 a reference; that there was a distinction be- 
 tween this and the case of 8coU v. Avery, 5 H. 
 L. Cas., 811. Moper v. Lendon, 1 El. & El., 825; 
 s. c, 5,Jur. (N. S.), 491; 28 L. J. Q. B., 260; 7 
 W. R., 441. 
 
 9. Plaintiff brought suit as administrator 
 upon a policy upon the life of the intestate. 
 The rules, made part of the policy, provided 
 that every matter in dispute between insurer 
 and any member thereof, or person claiming 
 on account of any such member, shall be re- 
 ferred to and decided by arbitrators, appointed 
 in pursuance of a certain rule. Held, the 
 claim on the policy was not a dispute "be- 
 tween the company and any member thereof, 
 or person claiming on account of any such 
 member," for, an executor does not claim on 
 account of a member, but on his own account. 
 Kelsall V. TyUr, 11 Exchr., 518 ; 35 L. J. Ex., 
 153. 
 
 10. One of the rules of a mutual company 
 provided that disputes should be referred to 
 arbitrators, and that obtaining the decision of 
 such arbitrators should be a condition prece- 
 dent to the right of any member to maintain 
 an action. Held, where the question between 
 the parties was one of law, the plaintiff was 
 not bound to submit to arbitration before com- 
 mencing his suit. Mwmndev v. Campbell, 41 
 L. J. Ch. 478 ; 37 L. T. (N. 8.), 417. 
 
 11. Condition in policy that in case there 
 be any dispute between the parties, it may be 
 referred to arbitrators indifferently chosen, 
 whose award in writing shall be conclusive and 
 binding on all parties. Held, the word " may " 
 is distinct from " shall ; " the one imperative, 
 the other permissive. Words of common par- 
 lance are not to be construed as legal phrase- 
 ology; submission must be always volun- 
 tary; nobody but the parties can name the ar- 
 biters; and it is the duty of the courts to re- 
 
13T 
 
 ARBITRATION AND AWARD. 
 
 138 
 
 When it is a condition precedent. 
 
 tain the administration of justice. Seott v. 
 Phomix Ins. Go., Stuart, 152. 
 
 II. "When it is a condition peece- 
 
 DENT. 
 
 1. On aliip, stipulated: "All rules and regu- 
 latiuQS of the association shall he binding on 
 both parties as fully as if they were inserted 
 in the policy." The rules provided that. loss 
 or damage should be ascertained and settled 
 by a committee; that the claimant, if he 
 agreed to accept that settlement in satisfaction 
 of his claim, should be entitled to demand 
 and sue for it, but not before; that if any 
 difference should arise between the committee 
 and a claimant, relating to any claim, arbitra- 
 tors should be selected, from certain persons 
 named in the rules, who should settle the mat- 
 ters in dispute according to the rules, and no 
 suit should be maintained, at law or in equity, 
 until the matters in dispute should have been 
 referred to and decided by the arbitrators, and 
 then only for such sum as the arbitrators 
 should award ; and that obtaining the decision 
 of the arbitrators, on the matters and claim 
 in dispute, should be condition precedent to 
 
 " the right of any member to maintain an ac- 
 tion. Plea, that before action brought, the 
 committee ascertained and settled the sum 
 which should be paid for the loss; that in- 
 sured was not satisfied with the settlement; 
 that the defendant and the committee had al- 
 ways been ready and willing to refer the mat- 
 ters in difference to arbitration, and to have 
 the loss ascertained and settled by arbitrators 
 according to the Intention of said rule, but 
 that the insured was not ready and willing to 
 do so, and that the loss had not been settled. 
 Held, the arbitration clause was legal, and that 
 a settlement by arbitrators was a condition 
 precedent to any right of action. Seott v. 
 Avery, 8 Exch., 487; affirmed, 5 H. L. Cas., 
 811; 2 Jur. (N. S.), 815; 25 L. J. Ex., 308; 33 
 id., 157, 287. 
 
 2. Stipulated : " In case of difference of 
 opinion as to the amount of compensation 
 payable in any case, the question shall be re- 
 ferred to the arbitration of a person to be 
 named by the secretary, for the time being, of 
 the matter of the rolls. Held, a plea, stating 
 that the amount of compensation was the 
 matter in dispute and difference between the 
 parties ; that the defendants had always been I 
 
 ready and willing to refer the claim to arbitra- 
 tion in the manner mentioned; that it had 
 never been settled and arbitrated, was good. 
 Braunstein v. Accidental Death Ins. Co., 1 B. 
 & 8., 782; 8. c, 8 Jur. (N. S.), 506; 31 L. J. Q; 
 B.,17; 5 L. T. (N. S.), 550. 
 
 3. Stipulated: "Insured shall, within fif- 
 teen days after a loss, send in particulars of it, 
 which loss or damage, after the same shall be 
 adjusted, shall immediately be paid in money, 
 or the insurers shall have the right to reinstate 
 the premises. In case any difference shall 
 arise touching any loss or damage, it shall be 
 submitted to arbitrators, whose award in writ- 
 ing shall be binding upon all parties. Held, 
 no action could be maintained until the loss 
 had been adjusted in the manner pointed out 
 by the contract. EUiott v. Royal Ex. Ass. Go., 
 2 L. R. Ex., 337; 16 L. T. (N. S.), 399; 15 W. 
 R.. 907; 36 L. J. Ex., 129. 
 
 4. Stipulated: "All average claims and 
 claims of abandonment shall be settled con- 
 formably to the custom of Lloyd's or the 
 Royal Exchange, by a professional average 
 stater. But should the committee or tlie 
 assured be dissatisfied with the adjustment, 
 they may refer the same to two professional 
 average staters, or to two other competent 
 persons, with power to such to appoint an 
 umpire, and the award of any two of such 
 persons shall be final, and all other cases of 
 dispute, of whatever nature, shall be deferred 
 in like manner, * * * and no action at 
 law shall be brought until the arbitrators have 
 given their decision." Held, an action for a 
 total loss could not be sustained until the 
 claim had been adjusted by arbitraticm in pur- 
 suance of the stipulation. Tredwen «. Holman, 
 1 H. & C, 73; 8 Jur. (N. S.), 1080; 31 L. J. 
 Ex., 398; 10 W. R., 653; 7 L. T. (N. 8.); 137. 
 
 5. Action on a policy made by a mutual as- 
 sociation. Stipulated: "In case of its becom- 
 ing necessary to make any payment in respect 
 of any loss or damage happening to any ship 
 insured, the amount to be borne and paid by 
 each member of the association shall, upon 
 each and every such occasion, be assessed and 
 proportioned by the committee "upon and 
 amongst the members of the association liable 
 to contributethereto." The defendant pleaded 
 that by the regulations annexed to the policy 
 a committee was to be appointed to audit the 
 accounts, settle claims, and order payment by 
 the manager's draft; that the manager should 
 
 69 
 
139 
 
 ARBITRATION AND AWARD. 
 
 140 
 
 What is a waiver of the agreement — When the award is conclusive. 
 
 have full power to settle all claims ; that the 
 claim in question had not been settled in the 
 manner provided ; also, that all average claims 
 should be adjusted by a professional average 
 stater, according to the usage at Lloyd's ; that 
 the plaintiff's claim was an average claim; 
 that it had never been adjusted as provided 
 for, and that tlie plaintiff had never been ready 
 nor willing to have it adjusted. Held, a good 
 plea. Wright «. Wa/rd, 24 L. T. (N. S.), 439. 
 
 III. What is a waivek of the ageee- 
 
 MENT. 
 
 1. The policy provided for a reference to 
 arbitrators in case of disputes arising under it. 
 There was no offer to refer to arbitrators. 
 Seld, the action could be maintained. Robin- 
 son V. Georges Ins. Co., 17 Me., 131. 
 
 2. Insurers refused to pay tbe claim, and 
 made no offer to arbitrate. Held, a waiver of 
 the condition requiring a submission to arbi- 
 trators. MiUmidon v. Atlantic Ins. Co., 8 La. 
 (O. S.), 558. 
 
 IV. "WheK the AWAED is COirCLUSITE. 
 
 1. Insurance on freight from Teneriffe to 
 Jamaica. She was captured by a French pri- 
 vateer and recaptured by a British ship, and 
 carried into Antigua; but on her way there, 
 was damaged by getting on rocks. She was 
 libelled for salvage; one-half the proceeds 
 decreed to salvors and the other half, less 
 costs and expenses, to the master, " for the use 
 of owners and all concerned." He retained 
 freight pro rata itineris. Insured, having 
 abandoned, claimed as for a total loss, which 
 was denied, and the right to abandon was sub- 
 mitted to arbitrators, who made their award 
 as for a total loss. Held, it was not necessary 
 to disclose to the arbitrators that a part of the 
 freight money had been received by the mas- 
 ter. Newtmryport Marine Ins. Oo. v. Oliver, 8 
 Mass., 403. 
 
 2. The case was submitted to arbitration 
 under the direction of the ship's husband, who 
 had insured her for whom it might concern. 
 He owned a little more than one-half. Held, 
 as he could have maintained the action in his 
 own name, and it appeared that he had kept 
 her insured for himself and the others jointly 
 
 70 
 
 for five or six years, without interference by 
 the other owners, that was sufficient to author- 
 ize a settlement by arbitration or otherwise, 
 and therefore the arbitration was a bar to this 
 suit. Hamilton v. Phamix Ins. Co.. 106 Mass., 
 895. 
 
 3. The parties agreed in writing to refer the 
 matter . in dispute to three persons named, 
 whose decision should be final, and these in- 
 dorsed on the submission as follows : " Having 
 examined all tbe evidence offered by the par- 
 ties, we are of opinion that proof has not been 
 produced sufficient to establish a claim against 
 the U. S. Ins. Co.," etc. Held, final and con- 
 clusive. MeDermoU v. United States Ins. Co., 
 3 8. & R., 604. 
 
 4. The charter provided that the damages 
 should be determined by the award of impar- 
 tial men, and the policy stipulated: "The 
 damages shall be ascertained by the examina- 
 tion and appraisal by disinterested appraisers 
 mutually agreed upon, whose detailed report 
 in writing shall form a part of the proof to be 
 furnished by the claimants." Appraisers were 
 appointed who assessed the damages. Held, 
 it was not a submission to arbitration, and 
 therefore it was not necessary that the persons 
 who assessed the damages should be sworn; 
 that their report without oath was binding 
 upon both parties. Zallee v. Ladede Mutual 
 Fire and Mmine Ins. Go., 44 Mo., 530. 
 
 5. The action was referred to an arbitrator 
 who made his award without stating the proof 
 or the ground upon which he proceeded. Held, 
 the court could not say that he had mistaken 
 the law. BeUoer ». Bamies, 1 Taunt., 48. 
 
 6. A verdict was found for plaintiff subject 
 to the further finding of an arbitrator as to the 
 amount of the loss, who awarded £41 15s. lOd. 
 per cent. It afterwards appeared that the 
 property, on its arrival at the port of delivery, 
 brought nearly as much as it would have 
 brought had it received no iiyury. HM, if 
 the sale were fair and h(ma ^fide, the award 
 must stand. (It was bought at the point of 
 distress on speculation.) Ha/rdy «. Innes, 6 
 Moore, 567. 
 
 7. An arbitrator under a consolidation rule 
 awarded tjie aggregate sura due the insured 
 from the insurers jointly. Held, the court 
 would not refer it again, for the arbitrator to 
 state what sum each insurer should pay, with- 
 out the consent of all the parties. Kynastm 
 n. Liddel, 8 Moore, 223. 
 
141 
 
 ARRESTS, RESTRAINTS AND DETAINMENTS. 
 
 142 
 
 What is a loss by. 
 
 Y. When the awaed is not conclu- 
 sive. 
 
 1. An award of the commissioners under 
 the French treaty of 1821 was made, where 
 both parties appeared and litigated their 
 claims. Held, not conclusive. Sadcliffe v. 
 Coster Hofif. Ch, 98. 
 
 2. B. mortgaged his stock of goods to A., 
 and a policy was made, " Loss, if any, pay- 
 able to A." The defendant pleaded that B. 
 and the insurers submitted themselves to the 
 arbitration of certain persons named, who 
 made an award. HfM, making the loss pay- 
 able to A. was in legal effect an assignment of 
 the policy to him; that his rights could not 
 be affected by an award made under a sub- 
 mission to which he was not a party. Srotcn 
 c. Riger WiUiams Ins. Go., 5 R. I., 394. 
 
 3. Insured agreed with insurer's adjuster to 
 submit the question of damages to a third per- 
 son, the adjuster promising to pay the cash so 
 soon as a letter could go from Saco, Maine, to 
 Cincinnati, and return. The referee awarded 
 $4,000. Held, not such a submission and 
 award as wa,<i binding upon the parties, hence 
 the action was well brought upon the policy. 
 Patterson v. Triumph Ins. Co., 64 Maine, 500. 
 
 4. Stipulated : " If a difference of opinion 
 shall arise between the parties hereto as to the 
 amount of loss or damage, the subject shall be 
 referred to two disinterested and competent 
 men, each party to select one, and in case of 
 disagreement, they shall elect a third, who 
 shall ascertain, estimate and appraise the loss 
 or damage, and their award, in writing, shall 
 be binding on the parties." Insurer's agent 
 requested a third person to select persons to 
 make the necessary appraisals for each pai-ty. 
 B. and P. were selected, and they, with in- 
 surer's agent, made an appraisal of the dam- 
 age, and it was signed by insurer's agent and 
 R. Seld, it was not binding upon the in- 
 sured, .^tna Ins. Co. v. Steoens, 48 111., 31. 
 
 5. The submission to arbitrators gave them 
 power " to award and determine what was the 
 total sum of money which ought to be paid to 
 the plaintiff, under or by virtue of the said 
 policies or any of them, in respect of loss or 
 damage occasioned by the said Are, to or in 
 the said chattels or things particularized in 
 certain schedules." The arbitrators found the 
 loss or damage sustained, and then declared 
 that the whole salvage or proceeds of the sal- 
 
 vage belonged absolutely to the plaintiff. 
 Held, the arbitrators exceeded their jurisdic- 
 tion. Skipper v. Grant, 10 C. B. (N. S.), 237. 
 
 6. The claim was submitted to arbitrators, 
 who found for the insured. Insurers brought 
 a writ of suspension, alleging that they had 
 discovered fraud on the part of the insured. 
 Held, if there were fraud, the contract must 
 fall, and the arbitration must go with it. Her- 
 cules Ins. Co. V. Hunter, 14 0. C. S., 147. 
 
 ARGUMENTS OP COUNSEL, 
 
 1, It was proved that defendant issued a cer- 
 tain pamphlet, but it was not offered in evi- 
 dence. Held, plaintiff's counsel should not 
 have been permitted to read from it while 
 making his argument to the jury. Koelg&rs v. 
 Guardian Life Ins. Co., 57 N. Y., 638; s. c.,10 
 Abb. Pr. (N. S.), 176. 
 
 2. Insured offered the master's protest as 
 evidence in the case, and it was excluded ; but 
 the counsel for insured in his address to the 
 jury attempted to state some of its ci^ntents, to 
 ■which insurer objected, and the court allowed 
 him to proceed, on the ground that protests 
 usually set forth the particulars of the casual- 
 ty; that insured was entitled to any fair infer- 
 ence from the general character of the paper 
 and the refusal of the insurers to have it read, 
 and the counsel was permitted to say " If that 
 document could have been offered in evidence, 
 it would have explained the particulars of the 
 casualty, and would have furnished a satis- 
 factory explanation of the fact that when the 
 vessel was examined at Bermuda she had six 
 broken knees." Held, error sufficient to re- 
 quire a new trial. Hoxie «. Home, Ins. Co., 83 
 Conn., 471. 
 
 ARRESTS, RESTRAINTS AND DE- 
 TAINMENTS. 
 
 (See Cinvwa asd Seizubx ; Illicit Tbade ; Foliot.) 
 
 I. What is a loss bt. 
 
 11. NOT A LOSS BT. 
 
 ;I. "What is a loss by. 
 
 1, Against unlawful arrests, restraints and 
 
 71 
 
143 
 
 ARRESTS, RESTRAINTS AND DETAINMENTS. 
 
 144 
 
 What is a loss by. 
 
 detainments of kings, etc. She was neutral, 
 •with a neutral cargo on board, laden and 
 sailed on her voyage before the institution of 
 the blockade. She made an attempt to get 
 out to sea, but was ordered back by the block- 
 ading squadron, and an abandonment was 
 offered immediately. Held, having been laden 
 before the institution of the blockade, the re- 
 straint was unlawful, and therefore a loss 
 within the terms of the policy. Olivera «. 
 Union Ins. Co., 3 Wheat., 183. 
 
 2. From Philadelphia to Havana. She 
 cleared December 21st, and, while detained by 
 head winds, an embargo was laid December 
 22d and promulgated on the 24th. She was 
 arrested and prevented from proceeding. She 
 returned to port, and an abandonment was of- 
 fered. ITeZfi, a domestic embargo amounts to 
 an arrest, restraint or detainment by the gov- 
 ernment, and, as the policy was general, a do- 
 mestic embargo, equally with a foreign one, 
 was a peril within the words of the policy; a 
 contract to indemnify against loss arising 
 from an embargo which the government of 
 the parties may at any future time impose, is 
 not against the policy of the law, therefore 
 the insured was entitled to recover for a total 
 loss. Odlin v. Insurance Co. of Pennsylvania, 2 
 Wash. C. C, 812. 
 
 3. Stipulated : " Free from seizure for or on 
 account of any prohibited or illicit trade." 
 An English cruiser compelled her to go into 
 the outer road of Plymouth, detaining her six 
 hours'. She arrived at the port of destination, 
 was seized under the Berlin decree and con- 
 demned, because the master had made a false 
 declaration before an offlqer of the port, stat- 
 ing he had not been in England. Held, the 
 loss did not fall within the exception ; that it 
 was within "arrests and detainments of 
 princes." JSfumford v. Phmiix Ins. Co., 7 
 Johns., 449. 
 
 4. " On cargo, warranted not to abandon for 
 capture until condemnation, or until six 
 months detention after advice received." 
 Sailed May 10, 1807. She was boarded by 
 an English privateer June 10, carried to 
 Portsmouth and released. She arrived in 
 Flushing roads, where an armed force came 
 on board, who ascertained that she had been 
 captured and carried into England. She 
 reached Antwerp, the armed force being kept 
 on board, and, by permission, cargo was 
 landed August 25, and sold in June, 1810. 
 
 72 
 
 Insured abandoned July 13, 1810, immediately 
 after receiving information of the sale. Held, 
 the loss was total by arrest, restraint, or de- 
 tainment. Oraeie v. New Tork Ins. Co., 13 
 Johns., 161. 
 
 5. On cargo of American brig from Sandy 
 Hook to a port of discharge in Sweden or 
 Russia: "With liberty to call and wait at 
 Gothenburgh for orders." She had taken her 
 cargo at the Spanish Main and arrived off 
 Sandy Hook, but detained there to avoid the 
 operation of an embargo. She commenced 
 the voyage, and, on July 24th, being at anchor 
 in Wingo Sound, the master heard of the de- 
 claration of war between England and the 
 United States, and, to avoid capture, he took a 
 pilot for Gothenburg, where he arrived July 
 26th. Having grounded, it was necessary 
 to take her cargo out and repair; she was 
 ready for sea in September, but tbe certainty 
 of capture made it impossible to pursue the 
 voyage, which was abandoned. She was sold 
 and the cargo stored in April, 1813, and an 
 abandonment made March following. Held, 
 the loss was total, within the risk of restraint 
 of princes or men of war. Saltus v. United 
 Ins. Co., 15 Johns., 523. 
 
 6. Upon ship, warranted free from any 
 charge, damage or loss which may arise from 
 having been engaged in any illicit or prohib. 
 ited trade at any time whatsoever. She had 
 goods contraband, the goods themselves, ac- 
 cording to the law of the port of destination, 
 became forfeited, but no penalty was to be in^ 
 flicted on the vessel which caiTied them. The ' 
 government, however, seized and confiscated 
 her. Held, her arrest and detention were un- 
 lawful, as much so as if she had entered the 
 port with goods that might have been legally 
 carried there. Thompson d. Mississippi Marine 
 and Fire Ins. Co., 2 La. (O. S.), 228. 
 
 7. On cargo. New Orleans to Tampico, 
 against perils of the sea, arrests, restraints and 
 detainments of all kings, princes or people 
 of whatever nation. She was boarded off the 
 bar at Tampico, and ordered away by the 
 French blockading squadron. Held, a restraint 
 within the meaning of the policy, and insni-ed 
 had a right to abandon and recover (citing 
 Olivera v. Union Ins. Co., 3 Wheat., 183). Yi- 
 gers v. Ocean Ins. Co., 12 La. (O. 8.), 362. 
 
 8. On slaves, against certain perils enumer- 
 ated, including arrests, restraints and detain- 
 ments of all kings, princes or people, of what 
 
143 
 
 ARRESTS, RESTRAINTS AND DETAINMENTS. 
 
 144 
 
 What is not a loss by. 
 
 nation, condition or quality soever. Slie was 
 driven ont of her course, sprung a lealt, and 
 was unable to reach any port in the United 
 States. Running short of provisions, she 
 bore away for Bermuda, and came to anchor 
 in Port Hamilton, where she was seized by 
 the officers of customs. While so detained, a 
 writ of hai>etu c<frpus was served upon the 
 master, who was compelled to deliver the 
 slaves to the oflBcer, and they were liberated 
 by order of court. HeM, a loss within the 
 policy. Simpson v. Charleston Fire and Ma- 
 rine ins. Co., Dud. Ap. (So. Car.), 239. 
 
 9. Against perils of the seas, arrests, re- 
 straints and detainments at apd from Charles- 
 ton. The cargo was laden April 4th, the date 
 of the policy. Held, arrests, restraints and 
 detainments included a domestic embargo. 
 LorerU «. South Carolina Ins. Co., 1 N. & McC, 
 505. 
 
 10. On cargo, including risk of restraints, 
 detainments, etc. She put into New York for 
 repairs, was unable to procure money to make 
 them, and the cargo was sold for that purpose. 
 An abandonment was offered and refused, but 
 an embargo was laid about that time upon all 
 vessels in port Held, they were entitled to 
 recover for a total loss. McFee v. South Caro- 
 lina Ins. Co., 2 McCord, 503. 
 
 11. "Against arrests, restraints, detain- 
 ments, etc." The plaintiffs were Spaniards 
 domiciled in Spain. She arrived at Corunna, 
 where an embargo was laid upon all ships, 
 and she was taken possession of by the gov- 
 ernment and employed for the purpose' of 
 taking troops to Malaga, the cargo having 
 been previously taken out by the authorities 
 and stored at Malaga, ffeld, a loss within 
 the policy ; that there is a marked distinction 
 between an embargo in a time when there is 
 peace between the countries of insured and 
 insurer, and an embargo caused by hostilities 
 existing or expected. Aiibert v. Oray, 3 B. & 
 S., 163 ; B. c, 9 Jut. (N. S.), 714 : 33 L. J. Q. B., 
 60 ; 11 W. R., 27 ; 7 L. T. (N. S.), 469. 
 
 II. What is not a loss bt. 
 
 1. The policy was against the usual risks, 
 except that the word " unlawful " was printed 
 before arrests, so that it read, " unlawftal ar- 
 rests, restraints and detainments of all kings, 
 princes, etc." Hdd, the word " unlawful " qual- 
 ified restraints and detainments as well as ar- 
 
 rests ; hence, a detainment by a force lawfully 
 blockading a port was exempted by the terms 
 of the policy. McGall v. Marine Ins. Co., 8 
 Cranch, 59. 
 
 2. On cargo consisting chiefly of munitions 
 of war. Insured abandoned and declared in 
 the action for a total less of the voyage by a 
 restraint of Spanish authorities. She was 
 proceeding to Talacuta, where a boat was sent 
 ashore for information; the crew of it were 
 made prisoners. She put to sea and fell in with 
 a fleet of six sail, under command of Gen. Mi na, 
 with troops for the bar of St. Ander. She 
 kept company with the fleet, expecting to sell 
 her cargo to the general, and arrived off tlie 
 bar April 28th. The cargo was sold, to be deliv- 
 ered as it should be wanted, from time to time, 
 by July 1st. While the master was on shore, 
 a Spanish frigate and two armed schooners 
 were discovered, and she immediately got 
 under way to escape them, which was accom- 
 plished after a four hours' chase. She subse- 
 quently returned to St. Ander and took the 
 master on board. Needing repairs, she pro- 
 ceeded to the Balize, made them, and sailed 
 again for St. Ander, where she arrived June 
 23d, but found the place in Uie possession of 
 the royalists; in consequence of this, she did 
 not approach the shore, but returned to New 
 York with her original cargo, arriving there 
 July 23d. Held, the insurers did not under- 
 take that the voyage should be performed 
 without delay, or that the perils instued 
 against should not occur; they undertook 
 only for losses caused by the perils insured 
 against; and if a peril acted upon the subject, 
 yet if it were removed before any loss took 
 place, insured could not abandon for a total 
 loss; that she resumed her voyage after the 
 restraint censed, and there was nothing to 
 show that the object of the voyage was de- 
 feated by the temporary restraint and delay 
 caused by the effort which was made to avoid 
 capture ; the real cause of the loss of the voy- 
 age was that St. Ander was again occupied 
 by the royalists, who would have seized the 
 vessel and confiscated the property, bad she 
 attempted to trade there, therefore the voyage 
 was broken up from fear of loss by seizure, 
 and not because of a restraint within the 
 meaning of the policy (citing Hadkinson v. 
 Robinson, 3 B. & P., 388; Xubbock v. Row- 
 croft, 5 Esp., 6t).) Smith v. Universal Ins. Co., 
 6 Wheat., 176. 
 
 73 
 
147 
 
 ARSON AND INCENDIARISM. 
 
 148 
 
 Character of proof required. 
 
 3. The expenses of the crew while the ship 
 is embargoed are not charges against ship, 
 nor are they allowable in general arorage, but 
 are special charges against the freight Mc- 
 Bride v. Marine Ins. Co., 7 Johns., 431. 
 
 4. " Warranted free from British and Amer- 
 ican capture and detention, but the usual sea 
 risks, to continue during capture and after 
 liberation." She was stopped at the mouth 
 of the Chesapeake and warned baclt. She 
 returned to the port of lading, Norfolk, and 
 abandoned the voyage. Hdd, the loss was 
 vrithin the exception. Wilson «. United Ins. 
 Co., 14 Johns., 237. 
 
 5. On goods " against all unlawful arrests, 
 restraints and detainments, etc." She was de- 
 tained and driven away from an intermediate 
 port by a British frigate, which with other 
 vessels was blockading the intermediate port 
 But the blockade was lawful, hence the re- 
 straint was lawful, and the loss not within the 
 policy. Thompson v. Bead, 12 S. and R., 440. 
 
 6. On ship and on cargo, two policies, in- 
 cluding unlawful arrests, restraints and de- 
 tainments, etc., but the word " unlawful " was 
 omitted in policy on cargo. She was boarded 
 by boats from a British squadron, the master 
 was ordered with his papers to the ship of the 
 commodore, which order he obeyed, and was 
 then ordered to proceed to the port from 
 jvhence he came, upon penalty of being seized 
 and condemned, which order he obeyed. Held, 
 not an arrest and detention by princes nor a 
 capture by enemies. Patterson v. Marine Ins. 
 Co., 5 H. & J., 417. 
 
 7. She was warranted free from American 
 condemnation. She slipped away in the night 
 but got ashore, was seized next day and con- 
 demned for breach of the embargo. Held 
 the ultimate total loss was by a peril excepted ; 
 that the insured could neither recover for the 
 total loss nor for the previous loss caused by 
 stranding. Livie n. Janson, 12 East, 648. 
 
 ARSON AND INCENDIARISM. 
 
 I. ChABACTER of proof REqUTRKD. 
 
 II. What must be proved. 
 
 III. Acts and declarations of accused. 
 
 IV. Employment op counsel by insurers. 
 
 74 
 
 I. Chaeacteh of peoof eequieed. 
 
 1. If the defense is that the insured set fire 
 to the premises, it must be made out by a pre- 
 ponderance of evidence; if the evidence is 
 evenly balanced, or the jury is in doubt as to 
 what the truth is on that point there is not a 
 preponderance of evidence. Huehierger v. 
 Merchants Fire Ins. Co., 4 Bissell, 265. 
 
 2. If the insurer defends on the ground that 
 the property was burned by the insured, the 
 insurer is not bound to give proof of the fact 
 sufficient to exclude all doubt but the evi- 
 dence must be such as clearly satisfies tlie 
 jury of the truth of the fact; and confessions 
 extorted from the insui-ed are to be entirely 
 disregarded; nothing but free and voluntary 
 confessions should be relied upon by the jury. 
 Scott s. Home Ins. Co., 1 Dil. C. C, 105. 
 
 3. The defense relied on was that the fire 
 was caused by the willful and fraudulent act 
 of the insured. The court refused to instruct 
 that the jury must be satisfied of the truth of 
 this defense beyond a reasonable doubt hut 
 did instruct if 'he jury as reasonable men, 
 were satisfied of the truth of it that would be 
 sufficient hut that they must be satisfied of it 
 as reasonable men before they could find in 
 favor of insurer. Schmidt ■». JTew York Union 
 Mutual Fire Ins. Co., 1 Gray, 529. 
 
 4. After the policy was made and delivered, 
 several attempts were made by incendiaries 
 to burn the property. Held, immaterial. Clark 
 V. Hamilton Mut. Ins. Co., 9 Gray, 148. 
 
 5. The defendant pleaded: "The premises 
 were burned either through the gross care- 
 lessness of the person insured, or fraudulently 
 by design on his part The court instructed the 
 jury that the defendant was bound to prove 
 beyond a reasonable doubt the allegation stated 
 in the plea, and defined such doubt to be: 
 " That if felt by an intelligent conscientious 
 and reasonable man would occasion mental 
 distress if disregarded by him, or such a sub- 
 stantial doubt as would hold in suspense the 
 judgment of an intelligent reasonable, con- 
 scientious man." The jury returned into 
 court saying that there was some doubt in 
 the minds of the jurors whether this was to 
 be treated as a civil or criminal matter; 
 whereupon the court instructed them: "Tou 
 must be satisfied of the truth of the matter 
 alleged in the plea, beyond any reasonable 
 doubt" Held, the instruction was correct 
 
149 
 
 ARSON AND INCENDIARISM. 
 
 150 
 
 What must be proved. 
 
 (citing Thurtell o. Beaumout, 1 Bing., 339; 
 Thayer v. Boyle, 30 Me., 475). Sutman «. 
 Hobba, 85 Me.. 237. 
 
 6. The evidence may be insuflScient to con- 
 vict, if the assured were on trial for arson, and 
 yet strong enough to prevent recovery on the 
 policy. Beffnier ». Louisiana State Fire <fi 
 Marine Int. Co., 12 La. (O. S.), 336. 
 
 7. The defendants introduced evidence tend- 
 ing to show that the fire was caused by the 
 firaud of tlie insured. Held, it was not neces- 
 sary that the evidence should be strong enough 
 to sustain a case of arson. WiglUman v. West- 
 ern ifariM (t i'Vre Ins. Co., 8 Rob. (La.), 442 ; 
 Hoffman «. Western Ma/rine & Fire Ins. Co., 1 
 La. An., 216. 
 
 8. About the time the fire occurred insured 
 had a cab in attendance and was ready to de- 
 part with boxes and trunks and the store look- 
 ing glass. Held, where a criminal charge is 
 to be proved by circumstantial evidence, the 
 proof ought not only to be consistent witli the 
 guilt of the person accused, but inconsistent 
 with any other rational conclusion, and al- 
 thoagh this was a civil and not a criminal 
 proceeding, the rule is the same. Flynn e. 
 Merchants' In*. Co., 17 La. An., 135. 
 
 9. The defendant pleaded that the insured 
 fraudulently caused his boat to be burned; 
 and the court instructed the jury not to find a 
 verdict for the insurer on that plea, unless the 
 evidence satisfied them of the fact beyond a 
 reasonable doubt Held, the instruction was 
 substantially this, " that if the jury after hear- 
 ing all the evidence relative to that plea, re- 
 mained doubtful in their minds whether the 
 insured burned the boat, it would be their 
 duty to acquit him of the charge, and this 
 violated no rule of law. Leseington Int. Co. v. 
 Paver, 16 Ohio, 334. 
 
 10. The defendant asked the court to in- 
 struct: " If the weight of testimony shows 
 that the fire was set by the plaintiffs or one of 
 them, the defendant is entitled to a verdict, 
 ■which the court refused, but instructed : " The 
 defense set up constitutes a criminal offense, 
 and although this is a civil action, yet from 
 the nature of the defen.se, it being what wouM 
 constitute a crime, the jury must be satisfied 
 from the evidence, beyond a reasonable doubt" 
 Held, error, for in all civil cases, a mere pre- 
 ponderance of evidence on either side is suf- 
 ficient Washington Union Ins. Co. v. Wilson, 
 7 Wis., 169. 
 
 11. Evidence was given tending to show 
 that the plaintiff had willfully caused the fire. 
 Held, it was error to tell the jury, before they 
 could find against the plaintiff, they must be 
 satisfied beyond a reasonable doubt that he 
 fired the premises, or procured them to be 
 fired and burned. It was sufficient if the evi- 
 dence prepondei'ated in favor of the defendant 
 Blaeser v. Milwaukee Mechanics Mutual Ins. 
 Co., 37 Wis., 31. 
 
 12. Upon an indictment charging defend- 
 ant with arson for the purpose of defrauding 
 an insurance company, no proof was offered 
 of the due incorporation of tlie insurance com- 
 panj', or of their compliance with the laws of 
 tlie state. Held, the issuance of the policy by its 
 agents de facto was sufficient. The People v. 
 Hughes, 29 Gal., 257. 
 
 13. The defendant was prosecuted for arson ; 
 and whether he was over insured became a 
 material question. Held, the amount and place 
 of insurance might be proved without pro- 
 ducing the policies. State of Nevada a. Cohn, 
 9 Nev., 179. 
 
 14. In order to make out a defense that in- 
 sured caused the premises to be burned, the 
 same evidence must be adduced as would be 
 required to convict upon an indictment for 
 arson ; and the jury must be as fully satisfied 
 that the crime charged is made out as would 
 warrant a finding of guilt on a criminal in- 
 dictment Thurtell e. Beaumont, 8 Moore, 612 ; 
 IBing., 339; 2L. J. C. P.,4. 
 
 13. Upon an indictment on 43 Cteo. Ill, ch. 
 58, sec. 1, for feloniously burning house, witli 
 intent to defraud the insurers. Hdd, an un- 
 stamped memorandum indorsed on a stamped 
 policy, by deed, was not admissible against 
 the prisoner. See v. GKUson, 1 Taunt., 95 ; R. 
 & R. C. C, 138. 
 
 IL What must be pkoted. 
 
 1. On an indictment for destroying a vessel 
 with an intent to iigure the insurers, it is not 
 necessary to prove the exist«nce of a legal cor- 
 poration authorized to insure, or a compliance 
 on the part of the corporation with the terms 
 of its charter, or the validity of the policy. It 
 is sufficient to show that the business of in- 
 surance was conducted by officers defaeto,aiii 
 that the policy was executed. United Staiet 
 e. Amedg, 11 Wheat., 892. 
 
 2. The prisoners were indicted foi burning 
 
 75 
 
151 
 
 ASSESSMENTS. 
 
 152 
 
 VaUd. 
 
 property with intent to defraud certain insur- 
 ance companies. It appeared the policies 
 were sent with printed signatures to an agent 
 at Chicago, who countersigned and delivered 
 them. No direct evidence of his agency and 
 authority was produced, but the court allowed 
 evidence tending to show that his principals 
 had recognized him as their agent. Held, the 
 evidence was insufficient to carry the case to 
 tlie jury, for the statute embraces nothing but 
 property actually insured. It follows, a valid 
 insurance must be established or the attempt 
 to .convict fails. Meitter e. The People, 31 
 Mich., 99. 
 
 III. Acts akd declaeations of the 
 
 ACCUSED. 
 
 1. The person charged with the crime of 
 arson, consulted with and employed a lawyer 
 immediately after the flre to prepare the pa- 
 pers necessary to perfect the claim, and the 
 lawyer stated the loss and gave notice in the 
 same of the prisoner. Held, evidence to go 
 to the jury, leaving to them the question 
 whether the lawyer had authority to act. The 
 People e. Beigler, Hill & D., 133. 
 
 2. Indictment for burning property with 
 intent to defraud insurance companies. Held, 
 conversations among the accused tending to 
 show a purpose or conspiracy existing, made 
 a long time prior to the fire, are admissible. 
 Meister d. The People, 31 Mich., 99. 
 
 IV. Emplotment op counsel by in- 
 
 SUEEES. 
 
 1. It is not proper to entrust the adminis- 
 tration of criminal justice to any one who will 
 be tempted to use it for private ends. The 
 employment of counsel by private parties to 
 aid in the prosecution tends to this. Hence 
 the employment of counsel by insurance com- 
 panies to assist in the prosecution of persons 
 charged with burning property to defraud the 
 companies is unlawful. Meister v. The People, 
 81 Mich., 99. 
 
 ASSESSMENTS. 
 
 I. Valh). 
 
 II. Invalid. 
 
 76 
 
 I. Yalid. 
 
 1. Though it be true that the insured has 
 forfeited his rights under the contract of in- 
 surance, it does not follow that his obligation 
 to contribute according to the rules of the so- 
 ciety has ceased. Korn v. Mutual Ass. Soe., 6 
 Cranch, 193. 
 
 2. A mutual insurance company need not, 
 after every loss, compute the assessments upon 
 deposit notes requisite to meet each loss ; but 
 a rule may be adopted, that will approximate 
 as nearly as is practicable and reasonable. 
 New England Mutual Fire Ins. Co. o. Belknap^ 
 9 Cush., 140. 
 
 'i. The assessment was based upon a com- 
 putation of losses from month to month, and 
 included losses chargeable upon each policy 
 for the month in which the assessment ex- 
 pired, but excluded those in the month in 
 which it began. Held, valid assessment Peo- 
 ple's Mut. Ins. Oo. ■». Allen, 10 Gray, 297. 
 
 4. Stipulated: "If assured shall neglect, 
 for the term of thirty days to pay his premi- 
 um note or any assessment thereon when re- 
 quested to do so by mail or otherwise, the policy 
 shall be void." Held, if insurers deposited in 
 the postofflce within the time mentioned a 
 prepaid notice of the assessments, with a re- 
 quest for payment of the same, addressed to 
 insured af the place where insured property 
 was situated, that was all they were bound to 
 do, and a failure to pay the premium released 
 insurers. Nor could he avoid his part of the 
 contract by change of residence without no- 
 tice to the insurers. Lothrop v. Greenfield 
 Stock and Mut. Ins. Co., 2 Allen, 82. 
 
 5. The ratio for each month was accurately 
 obtained ; the computations were substantially 
 accurate ; the sums raised were necessary and 
 proper; the assessments were approximately 
 just and equal upon all the members. Held, 
 valid assessment, notwitlistanding all out- 
 standing policies had been canceled, and the 
 meeting at which the assessment was laid was 
 called by the president only. Fayette Mutual 
 Fire Ins. Oo. ■». Fuller, 8 Allen, 27. 
 
 6. Before insurers appointed any agent in 
 the state, they issued a policy of insurance 
 upon property within it; but subsequently 
 they appointed an agent and complied with 
 the law. Held, insured was liable for the as- 
 sessment. National Mut. Ins. Co. ■». Pursell, 
 10 Allen, 281. 
 
153 
 
 ASSESSMENTS. 
 
 154 
 
 InTalid. 
 
 7. Neither the insolvency of tlie corpora- 
 tion nor the cancellation of its policies will 
 release the members from liability for all 
 losses that occurred while they were members. 
 C07nmoHtDeaUh v. JUassachtuetts Mut. Int. Co., 
 113 Mass., 116; Same v. Mechanic*' Mut. In». 
 Co., id., 192. 
 
 8. A member of a mutual company suffered 
 a total loss, received the amount and surrend- 
 ered the policy. But the company retained 
 the premium note. Hdd, insured must pay 
 assessments for losses incurred during the full 
 term of the jjolicy. Boot and 8?ioe Manufoe- 
 turert' Ins. Go. e. Melrose Soc, 117 Mass., 199. 
 
 9. The insured is liable ibr all assessments 
 lawfully made upon his premium note during 
 the entire period mentioned in the policy, as 
 well after as before the loss. Swamscot Ma- 
 chine Go. V. Partridge, 25 N. H., 869. 
 
 10. Assessments may be made against a 
 policy after it has expired, for losses which 
 occurred while it was in force ; and the com- 
 pany is entitled to retain the premium note 
 imtil all assessments are paid. A failure to 
 pay, within the time required by the charter, 
 gives a right to recover the amount of the 
 premium note. St. Louis Mutual Fire Ins. Co. 
 v. Bceckler, 19 Mo., 135. 
 
 11. The forfeiture of a policy made by a 
 mutual insurance company does not release 
 tlie insured from assessments made against 
 his premium note. loica State Ins. Go. v. Pros- 
 tee, 11 Iowa, 115. 
 
 II. Invalid. 
 
 1. Under the Insurance Act of April, 1849, 
 a mutual insurance company could not divide 
 its risks into two classes, and assess for losses 
 only the premium notes in the class to which 
 the particular note was assigned. Thomas v. 
 AehiUei, 16 Barb., 491. 
 
 2. In making assessments upon premium 
 notes, the directors of a mutual insurance 
 company do not act judicially. And where 
 the company is liable for a claim and have 
 not the money to pay it, the directors are to 
 ascertain who were the members, at the time 
 the loss occurred, and to assess upon each in 
 proportion as the amount which his deposit 
 note bears to all the deposit notes. They have 
 no right to consider the length of time any 
 person has been a member. If they omit to 
 assess any persons who were liable fur their 
 
 proportion of the loss, or include previous as- 
 sessments, troja which the parties had been 
 released, tlie assessment is invalid. Herkimer 
 County Mut. Ins. Go. v. Puller, 14 Barb., 373 ; 
 7 How. Pr., 810. 
 
 3. In an action brought to recover assess- 
 ments upon a deposit note, the plaintiff must 
 prove that the assessments were made .in pursu- 
 ance of the act of incorporation and by-laws. 
 Atlantic Mut. Ins. Go. v. I'its^^rick, 2 Gray, 
 279. 
 
 4. Some of the. members liable to assess- 
 ment were intentionally omitted. Held, it in- 
 validated the assessment. Marblehead Mutual 
 Fire Ins. Co. v. Hayward, 8 Gray, 208. 
 
 5. An assessment against members of a mu- 
 tual insurance company for losses and ex- 
 penses which accrued before some of them 
 were members is void as to those who were 
 not members. Long Pond Mutuai Fire Ins. 
 Co. V. Houghton, 6 Gray, 77. 
 
 6. The assessment was made against a part 
 of the members onlj', in proportion to their 
 premiums and deposits. Held, an illegal as- 
 sessment. People's Fguitable Mutual Fire 
 Ins. Go. V. Arthur, 7 Gray, 267. 
 
 7. An assessment not made according tu 
 the terms prescribed by the by-laws is invalid. 
 Applelon Mutual Fire Ins. Co. v. Jesser, S Al- 
 len, 446. 
 
 8. An assessment for an amount greater 
 than was necessary to enable the company to 
 meet existing claims is invalid. People's 
 Equitable Mutual Fire Ins. Co. v. Babbitt, 
 7 Allen, 235. 
 
 9. An assessment for the purpose of reftind- 
 ing unearned premiums is void. Common- 
 wealth t. Mechanics' Mut. Ins. Go., 112 Mass., 
 192. 
 
 10. A member of a mutual company sold 
 his insured stock. Held, he was not liable to 
 be assessed for loss that occurred after the 
 ■sale, because his policy ceased when the sale 
 was perfected. Wilson v. Trumbull Mutual 
 Fire Ins. Co., 19 Penn. St., 372. 
 
 11. A mutual insurance company has no 
 right to assess a premium note for losses that 
 occurred after the policy was canceled, nor 
 for losses anticipated upon a supposed failure 
 of others to contribute their proportion of 
 losses. Torh Gouaty Mutual Fire Ins. Go. v. 
 Turner, 53 Me., 225. 
 
 18. The assessment was made to cover not 
 only existing losses, but an estimate for bad 
 
 77 
 
155 
 
 ASSIGNEE (RIGHTS OP). 
 
 156 
 
 When rights of assignee cannot be afiected by acts of assignor. 
 
 debts, neld, it was illegal. _ York County Mu- 
 tual Fire Ins. Co. d. Bowden, 57 Me., 286., 
 
 13. The charter provided: "The directors 
 shall settle and determine losses and damages 
 to be paid by the several members thereof, 
 and their respective proportions of such loss." 
 A majority of the directors assessed a sum not 
 exceeding $18,000 to pay losses, and appointed 
 a minority committee to make the assessment, 
 who made it for a less sum. Held, the as- 
 sessment was illegal because it was not fixed 
 by a majority of the directors. Monmouth 
 Mutual Fire Inn. Co. ■e. Loicell,59 Me., 504. 
 
 14. Refusal to pay an assessment made to 
 cover the expenses of the company, as well as 
 the losses sustained, gives no right of action 
 upon the premium note ; for the power to as- 
 sess is* limited to the amount of losses unpaid 
 at the time of making the assessment. Sivr- 
 nitiippi Ins. Go. v. Tafi, 26 Ind., 240; Same v. 
 Wheeler, id., 336; Same v. Farris, id., 342. 
 
 15. The complaint showed on its face that 
 neither the receiver nor the court to which he 
 reported had examined the claims against the 
 company, nor had they determined upon the 
 validity of the claims, ffeld, the amount of 
 claims which the receiver or the court will 
 allow as just demands against the company, 
 together with any indebtedness previously al- 
 lowed by the directors, must be ascertained 
 before an assessment is made, and the com- 
 plaint must show the time covered by tie 
 policy, and that the losses for which the as- 
 sessments were made occurred during that 
 time. Mnibree v. Shideler, 36 Ind., 423. 
 
 16. Assessment upon a premium note. 
 Held, recovery could not be had without 
 proof of the losses and expenses which au- 
 thorized it. Pacijie Mut. Ins. Co. v. Ouse, 49 
 Mo., 329. 
 
 ASSIGNEE (RIGHTS OP). 
 
 (See Action; AssiasMEKT or Policy; Scbbooatioii.) 
 
 I. When kights of assignee cannot be 
 
 AFFECTED BT ACTS OF ASSIGNOR. 
 
 II. When rights of assignee are af- 
 fected BY acts of A6BI0N0R. 
 
 III. Generally. 
 78 
 
 I. "When eights of assignee cannot 
 
 BE AEFECTED BY ACTS OF ASSIGNOB. 
 
 ' 1. Copartners insured against fire, subject 
 to the condition: "When property shall be 
 alienated by sale or otherwise, the policy 
 shall be void." Held, a conveyance by one 
 partner of his interest in the properly insured 
 to his copartners avoided the policy unless in- 
 surers assented to it; but if the policy was 
 assigned with the assent of the insurers, the 
 assignee could recover in the name of the in- 
 sured. (Overruled, 17 N. T., 391.) Tillou 
 e. Kingston Mut. Ins. Co., 5 N. Y., 405 ; 7 Barb., 
 570. 
 
 2. Other insurance was prohibited unless 
 made with the company's consent. Insured 
 assigned the policy, which was ratified by in- 
 surer, and subsequently the assignor made 
 other insurance to which insurers never con- 
 sented. Held, the assignee might still recover 
 in the name of the assignor. (Overruled, 17 
 N. T., 391.) Traders' Ins. Co. v. Robert, 9 
 Wend., 404 
 
 3. An assignment of a policy protects the 
 assignee to the extent of his interest, provided 
 the insurer consents to it; and the assignor's 
 alienation cannot affect the assignee's rights 
 Boynton v. Clinton and Essejt Mut. Ins. Co., 16 
 Barb., 254. 
 
 4. The assignors of the policy made other 
 insurance upon the same after the assign- 
 ment of the policy, of which the insurer had 
 no notice, contrary to the terms of the policy; 
 but the insurer consented to the assign- 
 ment Held, it was not in the power of the 
 assignors to do anything to impair the va. 
 lidity of the policy in the hands of their as- 
 signees. (Overruled, 17 N. T., 391.) VuM o. 
 Genesee Mut. Ins. Co., 19 Barb., 440. 
 
 5. An assignment by the mortgagor of the 
 policy made by a mutual company, assented 
 to by the insurer, the assignee promising to 
 pay all future assessments on the policy. Held, 
 it constituted a new contract between the as- 
 signee and insurer, and an alienation of the 
 mortgagor's equity of redemption could not 
 affect the rights of the assignee, nor could his 
 right be affected by other insurance made 
 upon the property by the alienee. Foster c. 
 Equitable Mut. Ins. Co., 2 Gray, 216. 
 
 6. The by-laws were a part of the contract, 
 which was to be suspended if insured neglect- 
 ed to pay his assessment for ten days after de- 
 
15T 
 
 ASSIGNEE (RIGHTS OF). 
 
 153 
 
 When rights of assignee cannot be affected by acts of assignor. 
 
 mand. He neglected to pay it for fourteen 
 months, and then sold the property and as- 
 signed the policy, to which insurers assented, 
 but never gave any notice to the assignee that 
 previous assessments were overdue. Seld, in- 
 surers could not set up the nonpayment to de- 
 feat the assignee's rights. Sale v. Union Mu- 
 itMii Fira Ins. Co., 33 N. H., 395; Bamei e. 
 Union Mutual Fire Jna. Co., 45 id., 31. 
 
 7. Stipulated: "If any assessment required 
 by the directors is not paid within thirty days 
 after notice, the delinquent's policy shall cease 
 and determine." But the by-laws provided, 
 "Any policy payable to a mortgagee shall 
 continue so payable, uotwitl^tanding an alien- 
 ation by the mortgagor made subsequently to 
 the insurance, and the mortgagee shall pay 
 any and all assessments on the property, pro- 
 vided the original insured shall not pay the 
 same on demand." Held, a failure by the 
 mortgagor to pay an assessment made against 
 him did not affect the right of the mortgagee 
 to whom the policy was made payable in case 
 of loss. Franeig v. Butler Mutual Fire Ins. 
 Co., 7 R. I., 159. 
 
 8. Stipulated : " Any member of this com- 
 pany who shall have been assessed for the 
 payment of any loss or damage by fire, neg- 
 lecting or refusing to pay such assessment for 
 thirty days after notice of the same, shall for- 
 feit the policy, provided the premium note or 
 notes deposited with the company, after pay- 
 ing any losses or expenses which may have 
 accrued thereon, shall be given up on de- 
 mand." It was assigned January 13, 1855, to 
 which insurers consented March 5th. The 
 premium note was surrendered to the makers 
 and a new not« taken from the assignees. Bat 
 an assessment had been made October 3d pre- 
 ceding, notice of which was given the as- 
 signors May 17th, but it was not paid. The 
 premises were consumed January 4, 1856. 
 Seld, the assignees were not subject to tlie 
 pennlties or forfeitures caused by the fault 
 or omission of their assignors who ceased to 
 be members of the company when insurers 
 ratified the assignment and accepted the 
 second premium note. Brannin v. Mereer 
 Count}/ Ins. Co., 28 N. J., 92. 
 
 9. The subject insured was sold and the 
 policy assigned, to which insurers consented. 
 ffeld, no act of tbe assignor could impair the 
 rights of the assignee (citing Tillou v. King- 
 ston Mutual Ins. Co., 6 N. Y., 405). Neu 
 
 England Fire and Marine Ins. Co. v. Wetmore, 
 33 111., 281. 
 
 10. Insured confessed judgment and as- 
 signed the policy as collateral, to whicli in- 
 surer assented. Insured subsequently obtain- 
 ed other insurance contraiy to the conditions 
 of the policy. Held, the assignment made the 
 policy an insurance to the assignee, whose 
 rights could not be defeated by the fraud of 
 the insured committed subsequently to the as 
 signment. Charleston Insurance and Trust Co. 
 v. Neve, 3 McMuHen, 237. 
 
 11. "To be void if the insured shall commit 
 suicide, except the policy shall have been 
 legally assigned." Held, the word " legally " 
 was not used in a technical sense as opposed 
 to the word equitable; that in ordinary par- 
 lance the word " legal " means lawful ; hence, 
 if the policy was validly and effectually as- 
 signed, the insurer was liable notwithstand- 
 ing the person insured destroyed himself. 
 Dtifaur c. Professional Life Ins. Co., 35 Beav., 
 599 ; 4 Jur. (N. S.), 841 ; 37 L. J. Ch., 817. 
 
 12. "To be void, if the insured shall die 
 by his own hand, unless it shall have been 
 assigned for a valuable consideration six 
 months before death." He wntle a letter 
 authorizing the plaintiff to hold the policy, in 
 case of death or otherwise, " For any notes of 
 hand or bills of exchange you may havo 
 cashed for me." Held, a good assignment of 
 the policy, and that it covered all notes of 
 hand or bills which the plaintiff had cashed. 
 Jones V. Consolidated Investment Ass. Co., 26 
 Beav., 356 ; 5 Jur. (N. S), 314 ; 38 L. J. Ch., 66. 
 
 13. " To be void, in case insured shall die 
 by his own hand, except to the extent of any 
 bona fide interest therein, which, at the time 
 of such death, shall be vested in any other 
 person or persons for a suiBcient pecuniary 
 consideration." Insurers advanced money to 
 insured on bond and mortgage, and took the 
 policy (their own) as collateral. Held, a third 
 party would have been within the exception ; 
 that in respect of tlie money advanced, insurers 
 occupied the place of third parties, hence, it 
 was valid to the amount of their debt, not- 
 withstanding insured killed himself. White 
 V. British Empire Mutual Life Ins. Co., 7 L. R. 
 Eq. Gas., 394. 
 
 14. Stipulated: "Insurer shall not be liable 
 if the insured shall die by dueling or by his 
 own hands, or by the hands of justice, exceiit 
 the policy is made to protect the bona fide 
 
 79 
 
159 
 
 ASSIGNEE (RIGHTS OF). 
 
 160 
 
 When rights of assignee are affected by acts of assignor. 
 
 interest of another person under an actual 
 assignment for a valuable consideration in 
 money or by way of security or indemnity, or 
 by virtue of any legal or equitable lien by 
 ■way of security for money," The defendant 
 pleaded, that the insured died by his own 
 hands, and the plaintiiF replied, that before 
 the death of the assured, K. acquired a bona 
 fide interest in the policy by actual assign- 
 meirt, aa security for money. Held, bad, be- 
 cause it did not aver an assignment by deed. 
 But there was a further replication, that be- 
 fore the death, K. acquired a bonafide interest 
 in the policy by virtue of an equitable lien as 
 a security for money, upon which replication 
 issue was taken; and it appeared that the de- 
 ceased, before his marriage, had made' a bond 
 conditioned to secure £5,000 to his wife ; that 
 not being able to do that, an agreement was 
 made by which, inter alia, the deceased was to 
 insure his life for tlie benefit of his wife, she to 
 pay the premiums out of her separate income, 
 in pursuance ot which this policy was made 
 and delivered to K. for the benefit of the wife 
 with an intention to assign it regularly, but 
 which was never in fact done; that the policy 
 remained with K. as trustee ; that insurers at 
 the proper time had notice of all the forego- 
 ing facts. Seld, this was sufficient to sup- 
 port the issue on the part of the plaintiff. 
 Moore v. WooUey, 4 El. & Bl., 343; s. c, 34 L. 
 J. (Q. B), 40; 1 Jur. (N; S.), 468. 
 
 15. Insured assigned the policy to the 
 plaintiff, and it was confirmed to him by the 
 company. A loss occurred, and tlie company 
 pleaded that the policy was made upon con- 
 dition to be void in case of a change of occu- 
 pancy, unless notice of the change should be 
 given to insurers within ten days after it 
 should take place, and their consent obtained ; 
 that the company had insured the premises as 
 a tavern, and tiiat the use had been changed 
 to a store without insurers consent. Plaintiff 
 replied, that the change of occupancy took 
 place before he accepted the assignment, and 
 that he never had any knowledge of the 
 change. Held, a good replication. Kreutz ». 
 Niagara Mutual Fire Ins. Go., 16 U. C. C. P., 
 131. 
 
 16. Stipulated: "In case of subsequent in- 
 surance on the property insured, notice must 
 be given to the company, that it may be in- 
 dorsed on the policy or otherwise acknowl- 
 edged in writing, and on default thereof such 
 
 80 
 
 policy shall be void." Insured mortgaged the 
 property and assigned the policy, to which the 
 company consented. Subsequently the mort- 
 gagor effected other insurance, of which in- 
 surers never had notice till after the fire. 
 Held, the mortgagor could not, by making 
 other insurance, destroy the rights of the mort> 
 gagee. Burton s. Oore District Mutual Fire 
 Ins. Co., 13 Grant Ch., 158 
 
 II. Whek eights of assignee abb af- 
 
 FECTED BY ACTS OF ASSIGNOE. 
 
 1. Policy to A., loss, if any, payable to B., 
 mortgagee. Stipulated : " The transfer or ter- 
 mination of the interest of the insured in the 
 policy or property by sale or otherwise, with- 
 oxA the company's consent in writing, shall 
 render it void." Insured conveyed the prop- 
 erty about a month before the loss occurred. 
 Held, insurers were released; that so far as 
 Traders' Ins. Co. v. Robert, 9 "Wend., 404; s.c, 
 17 id., 631 ; and Tillon u. Kingston Mut. Ins. 
 Co., 5 N. T., 406, conflict with this, they are 
 overruled. Choitenor d. Atlantic Fire Ins. Co., 
 17 N. Y., 891; reversing s. c, 5 Duer, 517; 1 
 Bos., 469 ; Buffalo Steam Engine Works v. Bun 
 Mut. Ins. Co., 17 N. Y., 401. 
 
 2. Policy to B. stipulated against further 
 insurance, unless notice of it shall be giveai' 
 and consented to by the company. B. assigned 
 to M., to which insurer conseuted. Other in- 
 surance had been made prior to the assign- 
 ment, of which insurer had no notice. Held, 
 no contract when the fire occurred. Mellen v. 
 Hamilton Fire Ins. Co., 17 N. Y., 609; s. c, 5 
 Duer, 101. 
 
 3. Policy to S. and C, payable in case of 
 loss to J. J. assigned to plaintiff, and insurer 
 assented. fieM, plaintiff could recover what- 
 ever the persons originally insured might have 
 been entitled to receive in case of loss; the 
 original contract with S. and G. subsisted, and 
 their interest was insured ; the plaintiff must 
 claim in their right and not in his own ; and 
 if, by any act of S. and C, the policy became 
 void, the right of the plaintiff was gone. Hale 
 0. Mechanics Mut. Ins. Co., 6 Gray, 169. 
 
 4. Insured required insurer to make the 
 policy payable, in case of loss, to M. It pro- 
 hibited any alienation of the property insured. 
 Insured instituted proceedings in insolven- 
 cy, and, in pursuance thereof, made an as- 
 signment of all his property. . Held, M. could 
 
ner 
 
 ASSIGNEE (RIGHTS OF); 
 
 162 
 
 When lights of assignee axe affected by acts of assignor. 
 
 not recover anything, for the property had 
 been alienated ; whatever defeated the rights 
 of the insared, was equally fatal to the rights 
 of M, Young v. Eagle Fire Im. Go., 14 Gray, 
 150. 
 
 5. Stipulated: "When any property shall 
 be alienated by sale or otherwise the policy 
 shall be void." Insared mortgaged it and as- 
 signed the policy, to which insurers consented ; 
 but the insured subsequently conveyed the 
 property to a third party. Meli, the rights of 
 the assignee must be controlled by the acts of 
 the insured, hence the policy was void. Laxo- 
 renee «. Holyokt Ins. Co., 11 Allen, 387. 
 
 6. Insared represented his buildings free 
 from incumbrance, and guarantied a lien on 
 them to insurer, who issued a policy. Subse- 
 quently insured transferred the property and 
 the policy to the plaintiff, with insurer's con- 
 sent, but insured did not have title at the time 
 the policy was issued. Held, the policy was 
 void. Insurer's consent to the transfer did not 
 give any rights to the assignee. Eastman c. 
 Carroll County Mutual Fire Ins. Co., 45 Me., 
 807; MerriU v. Fartners and Mechanics Mu- 
 tual Fire Ira. Co.,^ id., 285. 
 
 7. A. made insurance upon certain property, 
 and assigned the policy with insurer's consent, 
 to B.: but after the assignment, A. conveyed 
 all his interest in the property insured to Ives. 
 Held, if insared had no interest in the prop- 
 erty insured at the time the loss occurred, no 
 recovery could be had upon it, for the benefit 
 of the assignee; and it was immaterial that 
 the conveyance made by the insured was as 
 against his creditors fraudulent. Birdsey «. 
 Cit!/ Fire Ins.Go., 26 Conn., 165. 
 
 8. Stipulated: "If insured or his assigns 
 shall make any other insurance on the prop- 
 erty, and shall not, with reasonable diligence 
 give notice thereof to the secretary, and have 
 the same indorsed on the policy, it shall cease." 
 The policy was subsequently assigned to B., 
 to which insurers assented, and insured after- 
 wards obtained other insurance without in- 
 surer's consent. Held, if insured, or any other 
 person to whom he assigned the contract, vio- 
 lated any of its conditions, no recovery could 
 be had. The contraiy would strike out all the 
 conditions of the contract, and make tjie lia- 
 bility absolute. State Mutual Fire Ins. Co. e. 
 Roberts, 31 Penn. St, 438. 
 
 9. The policy was void for breach of one of 
 its conditions, of which insurers were ignorant 
 
 6 
 
 when they consented to its assignment. Held, 
 the assignee acquired no rights under it. Cit- 
 izens Fire Ins. Co. v. Doll, 35 Md., 89. 
 
 10. F. being indebted to M. executed his 
 promissory notes for the debt and a mortgage 
 upon his brewery as collateral security, and 
 assigned his policy on it to M.,.to which in- 
 surer assented. Insurer offered to prove that 
 F. set fire to the premises. Held, there is a 
 distinction between acts done by the insured 
 for the purpose of discharging a liability and 
 others, which, by the terms of the contract, 
 were to be done or omitted, in order to con- 
 tinue and keep in force the contract; there 
 was also a distinction between a case where 
 there is an absolute sale of tlie property in- 
 sured leaving no interest in the insured, and 
 an assignment of the policy to the purchaser 
 with the company's consent, and another case, 
 where there is no sale, but a mere incum- 
 brance as security for the payment of the debt ; 
 for in the former, the assignor of the policy 
 ceases to have any interest in the subject in- 
 sured, and therefore ceases to be a substantial 
 party to the policy; in the latter, he is still the 
 owner, and is interested in the subject insured ; 
 for the surplus, if any, in the event of a loss, 
 is payable to him, and therefore the evidence 
 was admissible. lUinois Mutual Fire Ins. Co. 
 V. Fix, 53 111., 151 ; Some Mutual Fire Ins. Co. 
 0. Hauslein, 60 id., 521. 
 
 11. The policy was assigned after the loss. 
 Held, the assignee could have no greater or 
 superior rights than the assignor; that he took 
 the assignment subject to insurer's right to set- 
 off and all other equities. Archer v. Mer- 
 chants' and Manufadarers' Ins. Co., 43 Mo., 
 434. 
 
 12. The premium was not paid, but it was 
 the practice to give thirty days' credit In- 
 sured assigned the policy, and insurer notified 
 insured that the policy would be treated as 
 canceled on a day named, unless the premium 
 should be paid before that time. It was not 
 paid within the time named ; and the property 
 was burned shortly after. Held, the rights of 
 the assignee were no better than those of his 
 assignor Cbut the case did not show that the 
 company had consented to tlie assignment). 
 Bergson «. Builders' Ins. Co., 38 Cal., 541. 
 
 13. Policy to W. «fc Co., stipulated: "All 
 fraud or false swearing shall cause a forfeiture 
 of all claims on the insurers." A short time 
 after the policy was made, W. & Co. assigned 
 
 81 
 
163 
 
 ASSIGNEE (RIGHTS OF). 
 
 164 
 
 Generally. 
 
 it to the plaintiflf. W. & Co. made prelimi- 
 nary proofs of loss, cliiiming property on 
 hand at the time of the fire, $33,000. The de- 
 feudant offered to prove that W. & Co., in fur- 
 nishing preliminary proof and bills of pur- 
 chase, were guilty of fraud, which the court 
 refused to admit. Held, error ; for if the vio- 
 lation was such as to defeat the party origin- 
 ally insured, it must have a like effect against 
 his assignee. Pupke v. Besolute Fire Ins. Co., 
 17 Wis., 378. 
 
 14. Policy to A. upon his own life, by him 
 assigned. The court found, as matter of fact, 
 a fraudulent concealment on the part of A. in 
 effecting the policy. Seld, the assignees could 
 not recover, for they were subject to all the 
 equities which could be invoked against the 
 person insured. Brititli Equitable Int. Co. 
 «. Oreat Western Bailaay Co., 38 L. J. Ch., 
 314; 17 W.E. 48 j 19 L. .T. (N. S.),476; 20 
 id., 422. 
 
 15. " To be void if the insured shall commit 
 suicide; but if any third party shall have ac- 
 quired a boTM fide interest, by assignment or 
 by legal or equitable lien for a valuable con- 
 sideration, or as security for money, the in- 
 surance shall nevertheless, to the extent of 
 9uch interest, be valid and of full effect." In- 
 sured was domiciled at Valparaiso; he de- 
 clared himself a bankrupt, which of itself, 
 according to the law of that place, ceded all 
 his property to the court, and thereupon it be- 
 came vested by operation of law in the «sm- 
 bano or ofScial nbtairy of the court. After- 
 wards insured committed suicide. At a meet- 
 
 , ing of his creditors after his death, plaintiffs 
 were appointed asislgnees of his estate, and by 
 operation of law, all the rights of the eseri- 
 bano passed to them. Held, the plaintiffs were 
 not third parties having a bona fide interest by 
 assignment, nor did they have any legal or 
 equitable lien for a valuable consideration, or 
 as security for money within the meaning of 
 the exception. Jaekion «. Forster, 1 El. & El., 
 463; s. c, 5 Jur. (N. &.), 547; 28 L. J. Q. B., 
 166; affirmed, 1 El. & El., 468; 5 Jur. (N. B.), 
 1247; 39 L. J. Q. B., 8; 7 TV. R., 578. 
 
 III. Geneeallt, 
 
 1. B. contracted with 0. to make a deed of 
 
 the premises, and C. erected a house and made 
 
 a parol agreement to E., promising to give 
 
 title so soon as his vendor made one to him. 
 
 82 
 
 E. took possession, and agreed to insure to 
 protect his vendor's lien for the unpaid pur 
 chase money. He did so, and a fire occurred. 
 Insurers were notified not to pay the claim to 
 the insured, but they disregarded the notice 
 and paid him. Held, an equitable assignment 
 with notice to the creditor, and they must pay 
 it again to the equitable assignee. Cromwell 
 V. Brooklyn fire Ins. Co., 4A N. Y., 42; s. c, 
 39 Barb., 227. 
 
 25. A mortgagee received an assignment of 
 the policy as collateral, with the consent of 
 insurer, and afterwards insured conveyed a 
 moiety in fee to a third person, who demised 
 the same for a term of five years, at nominal 
 rent, with covenant to repair. Held, the mort- 
 gagee was entitled to recover of the insurer 
 his mortgage debt, but no more. Boynton v. 
 Clinton and Essex Mut. Ins. Co., 16 Barb,, 254. 
 
 3. The insurers had the right to rebuild. 
 They subsequently assented to an assignment 
 of the policy to secure a debt. Held, they still 
 had the right to rebuild. Tolman v. Manufac- 
 turers' Ins. Co., 1 Cush., 73. 
 
 4. Stipulated: "All sums due from the in- 
 sured to insurer when the loss becomes due 
 shall be deducted from it, and all sums com- 
 ing due shall be paid or satisfactorily se- 
 cured." Insured gave insurer a bottomry 
 bond on the vessel with sureties. Subse- 
 quently insurer made another policy on an- 
 other vessel, for the same person, with like 
 provisions, prohibiting an assignment without 
 insurer's consent, which was assigned to the 
 plaintiff with insurer's consent. Held, in set- 
 tling a loss on the first policy, insurer must 
 deduct all premium notes due, whether giveu 
 before or after the assignments of the second 
 policy; also they must deduct the balance of 
 the loss from the sum due on the bottomry 
 bond, and that they had the right to set off 
 the remaining balance due on the bond, 
 against the assignee's'claim made under the 
 second policy, without resorting to the vessel 
 bottomried or to the sureties on the bond. 
 Wiffsin V. Suffolk Ins. Co., 18 Pick, 145; Wig. 
 gin V. American Ins. Co., id., 158. 
 
 5. Where the assignment is merely equit- 
 able, the obligor may set off against the as- 
 signee all the equities to which he was en. 
 titled against the assignor; subject to this 
 limitation : if the assignee cajls upon the ob- 
 ligor to know whether the whole money is 
 due, and the obligor is silent as to any claim 
 
165 
 
 ASSIGNEE (EIGHTS OF). 
 
 166 
 
 GeneraUy. 
 
 he has against the obligee, he shall never after 
 open his mouth against the demand of the 
 assignee. Gourdon v. Insurance Co. of North 
 America, 3 feates, 327 ; Mousset t. Innuranee 
 Co. of North America, 1 Binn., 429. 
 
 6. On ship : " For account of whom it may- 
 concern ; loss, if any, payable to insured or 
 order." Stipulated : " No assignment of the 
 policy to be valid unless consent of the insur- 
 ers be first obtained." Insured mortgaged the 
 ship to B., covenanted to keep her insured, 
 and assigned the policy in blank, and deliv- 
 ered it to B. as collateral. Held, B. was en- 
 titled to recover in preference to creditors who 
 attached after the transfer was made, for the 
 transaction was an equitable assignment of 
 any demand that might accrue under the 
 policy. Inturanee Co. of Pennsylvania v. 
 Fhcenix Ins. Co., 71 Penn. St., 31. 
 
 7. The defendants contracted to reifnsure 
 the Enterprise Ins. Co. Stipulated: "Losses, 
 if any, are to be payable pro rata to the En- 
 terprise Ins. Co. at such times and in such 
 manner as the latter company may pay." 
 Held, the stipulation could have no applica- 
 tion where, as in this case, the reinsured have 
 made a general assignment for the benefit of 
 their creditors. The language must be con- 
 strued to mean as the Enterprise Co. m.ay be 
 liable to pay. Philadelphia Safe Deposit Co. 
 ». Fame Ins. Co., 9 Phila., 292. 
 
 8. Stipulated : In case the policy shall be 
 assigned or transferred, the assignee shall be 
 responsible for the amount of the unpaid 
 premium. 'HeCd, it gave no right of action 
 against the assignee of the policy. Wa,shing- 
 ton Ins. Co. v. Grant, 2 Penn. L. J., 308. 
 
 9. Policy upon the life of the husband, pay- 
 able to the wife, and in case the husband 
 should survive, then the loss to be paid to her 
 children. For a valuable consideration, she 
 mad« an absolute assignment of the policy, 
 and died during her husband's lifetime, leav- 
 ing children surviving. Meld, her interest in 
 the policy was defeated by her death during 
 the lifetime of her husband ; the interest she 
 had in the policy was contingent; it never be- 
 came absolute, because the contingency never 
 happened and never could happen, for the 
 money was payable to her in case she sur- 
 vived her husband ; and in case her husband 
 survived, the money became payable, by the 
 express provisions of the contract, to her chil- 
 dren ; the premium paid upon the policy by 
 
 the assignee should be paid back to him, and 
 the remainder paid to the guardians of the 
 clijldren of the deceased. Connecticut Mutual 
 Life Ins. Co. v. Burroughs, 34 Gonn., 305. 
 
 10. A. procured a policy on his own life, • 
 and surrendered it for one in all respects sim- 
 ilar, which was made payable to B., to whom 
 A. was engaged to be married. , It was depos- 
 ited with C. for B.'s benefit. A. afterwards 
 obtained it without the knowledge or consent 
 of B., and surrendered it to insurer for another 
 policy similar in all respects, except it was 
 made to D., to whom A. was indebted, and 
 was intended as security for that indebted- 
 ness. D. paid one premium upon it. A.'s 
 health was so much impaired that he could 
 not have passed the required medical examin- 
 ation for a new policy. Held, the policy de- 
 posited for B. with 0. was an executed gift; 
 that the consideration for the last policy was 
 the surrender of the second, and B. was enti- 
 tled to the benefits of the third policy, and to a. 
 decree ordering the avails of it to be paid to, 
 her, minus the premium paid by D. Lemon v. 
 Phoini^ Mutual Life Ins. Co., 38 Conn., 294. 
 
 1 1 . The charter required the assignee of a 
 policy to give satisfactory security for so 
 much of the premium as should be unpaid. 
 Held, it was not necessary to give his own 
 note; that having the note of his assignor 
 was sufficient, if that Was satisfactory' to the 
 company. Durar o. Hudson County Ins. Co., 
 24 N. J., 171. 
 
 1 2. The insurer having fixed and just claims 
 against the insured may set them off against 
 the demand of the insured, and this, notwith- 
 standing the policy was assigned. Baltimore 
 Ins. Co. V. McFadon, 4,11. & J., 31. 
 
 13. If the garnishee has notice of the as- 
 signment of the debt and fails to set it up in 
 his answer, he cannot resist the subsequent 
 claim of the assignee; and on the other hand, 
 having shown such assignment, he cannot be 
 charged as garnishee, Walters v. Washington 
 Ins. Co., 1 Cole, 404. 
 
 14. When there is no transfer of the prop- 
 erty, an assignment of the policy is an equita- 
 ble assignment of a contingent right to the 
 money, which becomes vested when the loss 
 happens, unless prohibited by the terms of the 
 policyi Bergson v. Builders. Ins. Co., 38 Cal., 
 541. But the assignee takes the policy sub- 
 ject to all rights, equities and liabilities exist- 
 ing betweeq the insurer and the insured. Ibid. 
 
16T 
 
 ASSIGNMENT OF POLIGT. 
 
 16S 
 
 What is an aaaignment. 
 
 1 5. When deceased was in extremis he as- 
 signed two policies, amounting to £800, to his 
 mother. He was then in embarrassed circum- 
 stances. Held, they were within I & II Vict., 
 oh. 110, sec. 13, and the assignment was void 
 as against creditors. Stokoe v. Oowan, 29 Bear., 
 637.; 7 Jur. (N. S.), 901; 30 L. J. Ch., 888; 9 
 W. R., 801 ; 4 L. T. (N. S.}, 695. 
 
 16. The policy was made and assigned, but 
 it was agreed between the assured and the 
 company that one-third of the annual premi- 
 ums should be deferred until death, and that 
 sum should be a charge against the sum in- 
 sured. Held, the assignor was bound to dis- 
 charge the policy from the incumbrance. 
 Oatwyei v. flather, 34 Beav., 387. , 
 
 17. Policy upon life of A., who deposited 
 it with B. as security for a debt. Notice of 
 the deposit was not given to the insurers. He 
 falsely represented to them that he had lost it, 
 and procured, them to issue to him a dupli- 
 cate, which he assigned by deed to his wife, 
 who had previously procured a separation de 
 Mens. Held,, if the wife took the assignment 
 honajide, for a valuable consideration, and 
 without notice that the policy had been de- 
 posited with B., then her rights were superior 
 to those of B. ; but if otherwise, they must be 
 postponed and take under the rights of B. 
 Le F&wure «. SuUmantXQ Moore's P. C. C, 1. 
 
 18..^. insured his life and assigned the 
 policy to. B. for a nominal consideration. B.'s 
 executor sold and assigned it to D. for a valu- 
 able consideration, and D.'s executors, agreed 
 to sell it to E. Held, the executors of D. had a 
 good title to the policy and E. must complete 
 the purchase. Ashley v. AsMey, 3 Sim., 149. 
 
 19. A bond was given to an insurance com- 
 pany to secure the repayment of a lo»n. The 
 borrower insured his life as furtlier security, 
 and the bond, provided for the payment of the 
 premium and for keeping the policy in force. 
 The- company was dissolved and its effects, 
 including the bond and policy, were trans- 
 ferred to another company. The premiums 
 were not paid to that otlxer company and the 
 policy was allowed to lapse. The surety died 
 and the, assignee of the company claimed as 
 creditors against Ms estate for the amount of 
 premiums unpaid. Held, they could not en- 
 force it for the premiums unpaid; but they 
 had a good claim against the estate of the 
 surety quoad the amount secured by the bond. 
 Atkinson v. Gylbj/t 31 L. J. Ch., 848. / 
 
 84 
 
 ASSIGNMENT OP POLICY. 
 
 (See Action.; Assiskeb, BiOHr op; Constbuotioh; 
 Iiibi;kabi.s Ihtsbbst; Folict.) 
 
 I. What is an assignmbht. 
 
 II. NOT. 
 
 III. IT CABBIES. 
 
 IV. VITIATES THE POLICY. 
 
 V. When insubees cannot ukge as a de- 
 fense. 
 VI. Generally. 
 
 I. What is as assignment. 
 
 1. B. held a policy on his life ; May 5, 1873, 
 he was adjudged insane and a guardian ap- 
 pointed; October 11th following he assigned- 
 it to L., of which insurers had notice ; Decem- 
 ber 22d, following, he was declared sane and 
 the guardian discharged. Two days thereaf- 
 ter he saw L., asked her if she still had the 
 policy and said he was glad he had given it 
 to her, for he wanted her to have it. He died 
 March 1st, following. The company paid the 
 claim to- L. Held, in contemplation of law 
 every man is sane until proved otherwise; 
 that the inquisition of lunacy rebutted that 
 presumption,'8nd prima fade established the 
 insanity of B. and his incapacity to contract 
 until restored by the judgment of the same 
 court; hence an assignment made before he 
 was restored by judgment of court and while 
 a guardian had charge of the lunatic's affairs 
 was void; that after he was restored by judg- 
 ment of court, he was again capable to con- 
 tract, and if while he was so capable, he said 
 to L. that he had given the policy to her and 
 that he then intended her or wanted her to 
 have it, this would be a ratification of the for- 
 mer gift and a gift in presenti, and she would 
 be entitled to the proceeds thereof. U. S. C. 
 C. Ohio. Quigly v. Mutual Life' Ins. Co., 4 
 Amer. Law Record, 559. 
 
 2. Policy to H., payable, in case of loss, to 
 the Cape Ann Savings Bank. P., an attorney 
 at law, held claims against H. amounting to 
 $500, and H. gave P. an order on the insurers 
 for any sum which should be left after satisfy- 
 ing the savings bank, of which the insurers 
 had notice; but they paid the balance to H., 
 disregarding the order. Held, a valid assign- 
 ment; the payment to H. was no defense to 
 
169 
 
 ASSIGNMENT OF POLICY. 
 
 170 
 
 What is an assignment. 
 
 the action BaU e. Dorehuter Mut. Ira. Co., 
 Ill Mass., 53. 
 
 3. The policy prohibited any assignment of 
 it. It was indorsed in blanic and handed to 
 B., and insurers adjusted the claim with him. 
 Hdd, an attaching creditor of insured had no 
 lights against the fund ; that no one but the 
 insurance company could tike advantage of 
 the violation of the condition. Itisurance Go. 
 V. Traik, 8 Phila., 32. 
 
 4. G. conveyed to H. 100 acres of land with 
 buildings thereon, for which he received four 
 notes, $100 each, payable in one, two, three 
 and four years, with interest from December 
 80, 1847, signed by H., and secured by mort- 
 gage on the same premises. H. procured insu- 
 rance September 31, 1849, and the property was 
 consumed by fire November 23d, following. 
 
 . G. notified insurer that he held the mortgage, 
 and stated the amount, which he claimed was 
 equitably due, and H. subsequently, in writing, 
 requested insurers to pay G. the sum of $150 
 on account of his claim under the policy. 
 Insurers never paid the amount requested, but 
 without the consent of G., redelivered the order 
 to H., and G. subsequently sold and trans- 
 ferred all his right, title and interest in the 
 notes to Sarah, who subsequently sold and 
 assigned them to Chadwick, who notified 
 insurer that the mortgage had never been 
 paid, and that he held a lien on it by virtue of 
 the statute. Insurer denied all liability, and 
 Oliadwick subsequently assigned all his rights 
 to H. Held, the assignment was valid, and a 
 payment made by the insurer to the mort- 
 gagee was no defense to an action brought by 
 the mortgagor. HaikeU o. Ifonmouth Fire Ins. 
 Co., 53 Me., 128. 
 
 5. The delivery of an assignment by the 
 assignor to the representative of the assignee, 
 vests the title in the assignee, and is good 
 against all persons except the creditors of the 
 assignor. JVeto York Life Int. Go. r. FUuk, 3 
 Hd., 341. 
 
 6. Policy to A. " Loss, if any, payable to 
 B." Held, an assignment to B., with the assent 
 of the company. National Ins. Co. e. Crane, 
 16 Md., 260. 
 
 7. The directors of a company had knowl- 
 edge that an agent consented to an assignment 
 of the policy, and recorded it upon their reg- 
 ister book. Held, the assignment was valid. 
 Ditrar o. Hudson County Ins. Co., 24 N. J., 171. 
 
 8. The claim was paid, but upon subse- 
 
 quent information, it appeared that insured 
 had committed a fraud upon insurer, who 
 charged him with procuring the premises to 
 be fired, and with secreting the goods alleged 
 to have been lost; and under threat of pros- 
 ecution, he assigned all his stock in trade to 
 an agent of insurer, to take charge of, sell, and 
 account for the proceeds ; and if it should ap- 
 pear that the alleged fraud was not verified, 
 the proceeds were to be paid over to insured, 
 less expenses ; and on the other hand, if it 
 should appear that the loss and payment was 
 procured by the fraud of the insured, then the 
 proceeds were to remain the property of in- 
 surer. About four months after, a creditor 
 filed this bill to set the assignment aside, and 
 for an account of the goods sold. Held, if 
 insured, by false and fraudulent representa- 
 tions, procured payment of the loss, he could 
 be compelled to refund the money; the evi- 
 dence sustained the allegations in the bill; 
 the assignment was valid and could not be 
 impeached by a creditor. MeConneU c. Dela- 
 ware Mut. Ins. Co., 18 111., 228. 
 
 9. Policy to a wife. She indorsed her name 
 on it in blank. Her husband pledged it as 
 collateral security. The pledgee called at the 
 office of the agent of insurer, and inquired 
 whether the premium, to become due in a 
 few days, had been provided for by the 
 pledgor. He was told by the bookkeeper of 
 insurer's agent that a part of the premium had 
 been paid, and that the husband intended to 
 pay the residue next week. Relying upon 
 this statement, the pledgee failed to pay the 
 premium on the day it was due. The money 
 to which the clerk referred had been deposited 
 by the husband for the purpose of securing a 
 new policy in case the pledgee should fail to 
 pay the premium ; but of this the clerk was 
 ignorant. Subsequently, upon the husband's 
 application, insurer issued another policy, in- 
 suring the same sum, for the same annual pre- 
 mium, in favor of the wife. The pledgee, upon 
 receiving information that the policy had 
 lapsed for nonpayment of premium, tendered 
 it to insurer's agent, who refused it. Held, the 
 pledgee was entitled to be paid the amount ut 
 his debt from the money accruing to the wilb 
 under the new policy ; the pledgee was entitled 
 to the same interest in it that he had in the 
 old policy; the wife's indorsement and sur- 
 render of possession to her husband, clothed 
 him with all necessary evidence of a power to 
 
 85 
 
171 
 
 ASSIGNMENT OF POLICY. 
 
 IT? 
 
 What is an assignment. 
 
 pledge the instrument and fill up her blank 
 assignment; and having done so, she could 
 not be permitted to deny her husband's right 
 to assign it. Norwood v. Guerdon, 60 111., 253. 
 
 10. At the time the policy was executed, 
 an order, written on the back of it by the in- 
 sured, which the insurer recognized, to pay 
 whatever might become due on it to D., who 
 presented the claim after the loss occurred. 
 Insurer's president said the papers were cor- 
 rect, and the company would pay the claim. 
 The secretary made the same agreement. An 
 attachment was levied on the avails of the 
 policy the same day, in behalf of insurer's 
 president. Held, the order indorsed upon the 
 policy to pay the claim to D., and the recogni- 
 tion of it by the company, was a valid assign- 
 ment of the money to D. ; the company was 
 therefore bound by its promise to pay the money 
 to B. ; the attaching creditor could not avail 
 himself of his position and the information he 
 had acquired to defeat the payment by seizing 
 the fund for his own benefit. Lapeyre v. 
 Thompson, 7 La. An., 218. 
 
 11. Life policy to H., payable to him, his 
 executors, administrators and assigns, within 
 sixty days after due proof of death. He wrote 
 upon it: "I hereby make over this policy of 
 insurance on my life to H. E. G., a colored 
 woman," and signed and sealed it. The ad- 
 ministrator claimed the money. Held, the 
 assignee was entitled to the money. Mutual 
 Protection Ins. Co. v. Samilton, 5 Sneed, 269. 
 
 12. Policy on the life of T., payable to hi? 
 executors, administrators, or assigns. Three 
 months thereafter, he assigned it to two trus- 
 tees, for the benefit of his father, mother and 
 sisters. In this assignment there was an 
 irrevocable power of attorney to the trustees. 
 ITeld, the trustees were entitled to the fund. 
 Pearson v. Amicable Ass. Co., 27 Beav., 229. 
 
 13. N. effected a policy on his life for £500, 
 and subsequently transferred it to trustees for 
 the benefit of his infant son, provided he should 
 attain the age of twenty-five years; but if he 
 should die under that age, and N. should think 
 proper to pay the premiums on the same, then 
 the trustees were to transfer the same to Eliza- 
 beth, or N. might if he pleased sell the policy. 
 Notice of the transfer was given to insurers. 
 Two years thereafter N. deposited the policy 
 as security with his bankers for a balance, ac- 
 cojnpanied with a memorandum of deposit. 
 The infant died in his eleventh year, and after 
 
 86 
 
 his decease, N. assigned the policy to the 
 plaintiffs to secure a large bfilance. Held, the 
 assignment to the banker was a sale pro tanto, 
 hence plaintiffs were not entitled to the pro- 
 ceeds of the policy. Pedder i>, Mosely, 31 
 Beav., 159. 
 
 14. A clerk robbed his employers of money, 
 and upon discovery, assigned certain policies 
 and lands for the amount. He was afterwards 
 prosecuted by his employers, convicted and 
 sentenced to penal servitude for fourteen years. 
 He gave notice to the company of this as- 
 signment, but subsequently made one to an- 
 other person, and delivered possession of the 
 policies to him. Meld, tlie debt was a good 
 consideration for the first assignment, and the 
 first assignee became entitled to the money. 
 Ohovme a. Baylis, 31 Beav., 351. 
 
 15. A debtor effected insurance on his life, 
 and stipulated: "If the policy shall he as- 
 signed loTM fide, the assignee shall have the 
 benefit of it, so far as his interest extends, 
 though the insured shall commit suicide." 
 The debtor deposited the policy with his cred- 
 itor, and accompanied it with a letter in which 
 he promised to assign it to the creditor when 
 requested, as security for the debt Insurers 
 had no notice of the deposit nor of any inten- 
 tion to assign. The debtor committed snicide. 
 Held, the effect of the transaction gave the 
 creditor all that an assignment could have 
 given, which equity would enforce, and that 
 notice to the insurers of the assignment was 
 not necessary. CooAu. ^tocfc, 1 Hare, 390; 11 
 L. J. Ch., 268. 
 
 16. The life was insured by a mutual insur- 
 ance company, and the policy was deposited 
 by a creditor as security for the debt of the 
 insured, but no express notice of the deposit 
 was given to the insurer, and the insured be- 
 came a bankrupt. Held, the assignee in bank- 
 ruptcy was entitled to all the benefits of it 
 In re Bromley, Ex parte Wilkinson, IS Sim., 
 475. 
 
 17. The policies were deposited with cer- 
 tain bankers, but notice was not given insur- 
 ers. Held, they remained in the bankrupt's 
 order and disposition, and his assignees were 
 entitled to the proceeds, notwithstanding the 
 secretaries of the companies had been casually 
 made aware of the deposit Edwards n. Mair- 
 tin, 1 L. R. Eq., 121 ; 13 L. T. (N. S.), 236. 
 
 18. The policy was assigned to trustees for 
 the benefit of the wife, and notice of the assign- 
 
173 
 
 ASSIGNMENT OF POLICY. 
 
 174 
 
 What is not an assignment. 
 
 ineut given to a resident director, who it seems 
 never sent any report of the assigameat to the 
 principal office. The truster became bank- 
 rupt Htld, the trustees, and not the assigns 
 in bankruptcy, were entitled to the money. 
 North British /«.». Co. v. HaUet, 7 Jur. (N. S.), 
 1263; 9W. R., 880. 
 
 19. A. effected a policy on his life, and 
 mortgaged it lo B. without notice to insurers. 
 A. became bankrupt, and after he died, B.'s so- 
 licitor gave notice to the company that this 
 and other policies were mortgaged. Subse- 
 quently notice of the bankruptcy was given to 
 the company. Seld, B. was entitled to prior- 
 ity over the general creditors (citing Stewart 
 V. Cockerell, 8 L. R Eq., 607; In re Webb's 
 Policy, 15 W. B., 539). In re RmadVi Policy, 
 15 L. R. Eq., 26; 27 L. T. (N. S.), 706. 
 
 11. "What is not ah assigjoient. 
 
 1. On ship— stipulated: "The interest of 
 the insured in this policy or the property 
 hereby insured is not assignable without the 
 consent of this corporation in writing." In- 
 sured executed a bill of sale and the vendee 
 executed to him anotlier bill of sale, to be void 
 on payment of $4,000 at a certain time named. 
 There was no assignment of the policy, but it 
 was left as collateral for the debt, and after the 
 loss, it was assigned to the vendees. Posses- 
 sion of the vessel was given to tlie vendees, and 
 insurers never had any notice of the transac- 
 tion. Held, no breach of the condition. Hitch- 
 cock V. Northwestern Ins. Co., 26 N. T., 68. 
 
 2. P. was indebted to D. $3,500, for which 
 he drew drafts on C. in favor of D., to secure 
 the payment of \f hich he gave security upon 
 the schooner " Eliza Jane " (of which he was 
 master and owner), with an agreement that he 
 would insure her, pay the premium and trans- 
 mit the policy to D. She was insured for the 
 amount, " loss, if any, payable to G.," of which 
 P. advised D., saying that Q-. would hold the 
 insurance, if collected, subject to the order of 
 : D. On the voyage, she jettisoned a part of 
 her cargo and put into Charleston in distress. 
 The cost of repairing amounted to about 
 $4,000, to pay which a part of the cargo was 
 sold and a bottomry bond executed for the 
 balance. She arrived at the port of destina- 
 tion with a small part of the cargo, and was 
 sold to satisfy the bond. P. delivered the pol- 
 
 icy to another creditor to collect of the insur- 
 ei's, pay bis debt, and account to G. for the 
 balance, if any. Hdd, the words, " loss, if any, 
 payable to G.," gave him authority which was 
 revocable; that P. had the right to transfer his 
 interest in the policy as he should see fit, and 
 that there was not an equitable assignment to 
 D. Dickinson ii. Phillips, 1 Barb., 454. 
 
 3. The policy prohibited an assignment of 
 it Insured caused an assignment to be writ^ 
 ten on the back of it and sent it to the com- 
 pany for ratification, with instructions to de- 
 liver it to the assignee named; but the com- 
 pany refused to ratify, and returned it to in- 
 sured. Held, an attempt to assign,, but not an 
 assignment Smith v. Monmouth Mutual Fire 
 Ins. Co., 50 Me., 96. 
 
 4. The policy was indorsed: "In case of 
 loss pay to Angler," signed by insured, and it 
 was left with Angler for collection. HM, no 
 assignment. Buss «. Waldo Mut. Ins. Co., 52 
 Me., 187. 
 
 5. Action on a life policy. Bes judicata 
 was pleaded. Three parties claimed the 
 money. Suit was instituted by one against 
 insurer at its domicile in Hartford, Conn., 
 and judgment was there given against the 
 company. The plaintiff here had possession 
 of the policy and sued upon it Held, posses- 
 sion was not conclusive proof of a right to re- 
 cover the insurance money, for it was merely 
 the evidence of a contract not negotiable; the 
 right to the money might be assigned de hoi- s 
 the instrument Wood v. Phanix Mutual Life 
 Ins. Co., 22 La. An.., 617. 
 
 6. Bisley insured his life for one year 
 for $5,000. He died within the term. On the 
 back of the policy he indorsed, at different 
 dates, four several assignments each for 
 $1,000: One in favor of M.,one in favor of 
 his brother H, and two in favor of Benjamin 
 J. Leedom. One of the assignments in favor 
 of Leedom and one of the others in favQr of 
 H. had never been approved by insurer, nor 
 had any notice been given to insurer in re- 
 spect of them ; but as to the other two, insurer 
 had approved them. The policy remained in 
 the possession of insured up to the time of his 
 death. Held, under the code, the assignment 
 of a debt vests in the assignee only an in- 
 choate right; that in respect to third per- 
 sons the assignor is not divested until notice 
 is given to the debtor (citing Cox v. White, 3 
 La. (O. 8.) 422; Carlin s. Dumartrait, 17 
 
 87 
 
175 
 
 ASSIGNMENT OF POLICY. 
 
 176 
 
 What it carries. 
 
 Martin (La.), 21 ; Bainbridge v. Clay, 16 id., 
 56.) Succession of Risley, 11 Rob. (La.), 398. 
 
 7. A. procured a policy on his own life and 
 deposited it with his creditors, to secure a 
 promissory note of £1,000. Insurers never 
 had notice of the deposit; alter his death a 
 creditor arrested the fund in the hands of in- 
 surer. Held, the arrestment was diligence 
 effectual under the law of Scotland ; that the 
 nnintimated assignation in competition with 
 the arrestment was ineffectual, therefore the 
 rights of the arrester were superior to those 
 of the assignee. Straahan v. McDougU, 13 
 S. & D., 954. 
 
 8. D. assigned the policy on his life to a 
 trustee, to secure a debt due to W. Boon after, 
 the solicitor of W. caused a memorandum to 
 be made in the insurance office directing all 
 letters to be sent to the solicitor. The premi- 
 ums were thereafter paid by the solicitor for 
 W. i but the company had not any notice for 
 
 ■ whom the solicitor acted. D. became bank- 
 rupt, and during his life the solicitor of W. 
 paid the premiums, and after Ws death, his 
 executors continued to pay the premium. 
 Held, the policy was within the order and dis- 
 position of the bankrupt but that the executors 
 of W. had a lien upon the policy for the premi- 
 ums paid by W. and his estate with interest. 
 West V. Beid, 2 Hare, 249; 12 L. J. Ch., 245. 
 0. A life policy assigned as security for a 
 debt. The assignor became bankrupt, but no- 
 tice of the assignment had not been given to 
 the insurer. The company's charter made 
 every person insured, a partner in the com- 
 pany. Held, notice to one partner was notice 
 to the whole partnership ; that an assignment 
 of a policy by one of the assured was a fact of 
 which the partnership or company was bound 
 to take notice. Duncan ii. Ohaniberlayne, 11 
 Sim., 123 ; reversed, Thompaon v. Speirs, 13 
 id., 469.) In which case it was held, "It 
 would be idle to say that because the assured 
 happens to be a member of the company in a 
 legal sense any act which he does with refer- 
 ence to his own particular pplicy is to be taken 
 to be a partnership act, so as to affect the whole 
 body with notice of it." 
 
 10. The policy was assigned but notice 
 thereof was not given to insurers. Held, the 
 assignment was void as against his assignees 
 in bankruptcy. Williams v. Thorp, 2 Sim., 257. 
 
 11. The bankrupt had been local agent of 
 a life insurance company in Cork, whose 
 
 88 
 
 principal place of business was in DiMin. 
 He insured his life in the company and as- 
 signed the policy in December, 1839, to the 
 National Bank, in which assignment, he cov- 
 enanted to pay the premium and continued to 
 do so to the time of his death. Notice of the 
 assignment was never sent to the company; 
 but the manager of the bank gave a pro forma 
 verbal notice to the agent, that is, the insured, 
 who afterwards became bankrupt, and died. 
 Held, the insurance must be considered a 
 transaction between the principal office in 
 Dublin and the insured ; that while the notice 
 of an assignment to an agent would have 
 been sufficient in ordinary cases, it was not 
 in this case where the agent to whom the no. 
 tice was given was the person insured, and 
 therefore the assignee in bankruptcy was en- 
 titled to the avails of the policy. Sx parte 
 Hennessy, 1 Con. & Law, 559 ; B. c, 5 Irish 
 Eq., 259; 2 Dr. & War., 555. 
 
 III. "What it cabbies. 
 
 1. Prior to the year 1803, V. was an under- 
 writer on various vessels and cargoes, the 
 property of citizens of the United States, 
 which were captured and carried into the 
 ports of Spain and her dependencies; aban- 
 donments were made thereof to V. by the 
 owners and he had paid the losses arising 
 therefrom prior to the year 1802. S. became 
 assignee in bankruptcy of the effects of V. 
 The certificate of the discharge of V. in bank- 
 ruptcy bore date May 28, 1803, and in the 
 year 1824, the assignee received from the treas- 
 ury of the United States $8,846.14, as an award 
 on account of the losses and capture men- 
 tioned. In the return of V. to the commis- 
 sioners in bankruptcy, his claim against Spain 
 for spoliations was not in his schedule, but 
 claims against France and Great Britain were. 
 Held, the award of the commissioners pre- 
 sented no bar to the action of V., for by the 
 act of abandonment, insured renounced and 
 yielded up to the underwriter all his right, 
 title and claims to whatever might be saved, 
 leaving to the underwriter the privilege to 
 make the most of it for his own benefit; that 
 the right of V. in the award vested at the time 
 of his bankruptcy, though the award was not 
 declared till long after, and the assignment in 
 bankruptcy carried the interest of V. in the 
 award to his assignee, therefore V. was not 
 
177 
 
 ASSIGNMENT OP POLICY. 
 
 178 
 
 When it vitdates the policy. 
 
 entitled to any part of the award. Oomegyt s. 
 Yasie, 1 Pel., 193. 
 
 2. B. made insurance on his life, and sub- 
 sequently promised to marry R., to whom he 
 assigned the policy, and notified insurers, but 
 not being able to pay the premiums, he subse- 
 quently procured his uncle to promise to pay 
 them, who agreed to do so, provided the policy 
 should be for the benefit of B.'s mother and 
 sisters. B. applied to R for the policy, telling 
 her it had expired. She sent it to him, and 
 he sent it to his uncle. The company de- 
 clined to transfer it except by a reassignment 
 R. thereupon executed an assignment to B., 
 without asking the reason wdiy he wished it 
 Hdd, R. had no title to the money payable 
 under the policy, Wtuhington Life Ins. Co. v. 
 Lamrenee, 53 Barb., 307 ; 8. c, aflSrmed, 41 N. 
 T. (3 Hand), 620. 
 
 3. An assignment of- the policy as collater- 
 al carries nothing but a defeasible right for the 
 time being, which is divested whenever the 
 debt is paid. Robert e. Traders Ins. Co., 17 
 Wend., 631; 8 c, 9 id., 474. 
 
 4. An assignment of the policy vests an 
 equitable interest in the assignee without no- 
 tice to |the insurers, and a creditor cannot at- 
 tach it Wak^idd e. Martin, 3 Mass., 558. 
 
 6. A life insurance policy in favor of the 
 life insured was assigned to H., in trust, for 
 the benefit of assignor's children. It was 
 never delivered to H., but deposited in the 
 safe of a firm of which assignor was a mem- 
 ber, where it was found after his death. He 
 was solvent when he made the assignment, 
 but insolvent when he died, ffeld, his cred- 
 itors had no right to any portion of the fond 
 (citing Larkin v. McMullin, 49 Penn. St, 29; 
 Ck)ates «. Gerlach, 44 id., 43; Mullen v. Wil- 
 son, id., 413). But the court directed the 
 amount of premium paid to keep the policy 
 alive, after the assignor became insolvent, to 
 be taken from the sum insured and given 
 to the creditors. Trough"* Estate, 8 Phila., 
 214. 
 
 6. An assignment of a policy, upon a stock 
 of goods effected in the name of the assignor, 
 as security for a debt due by assignor to as- 
 signee with an agreement that in case of loss 
 the assignee shall collect the money and ap- 
 ply it on the debt, confers a lien upon the 
 amount due, to the extent of the debt, so soon 
 as the loss occurs, as against the assignor and 
 all persons asserting claim thereto through 
 
 him; such an assignment need not be in 
 writing, provided the policy be delivered to 
 the assignee and the assignee need not have 
 any interest in the property insured. Bibend 
 v.LoTWion and Liverpool Fire and Life Ins. Co., 
 30 Cal., 78. 
 
 7. A solicitor and his client agreed that to 
 secure costs, a certain policy should be depos- 
 ited with the solicitor, which was done, and 
 afterwards he made advances, and took an as- 
 signment to secure them. The assignment 
 was silent as to costs. Held, the possession 
 under the deposit was merged in the assign- 
 ment and that the policy became a security 
 for advances only. Yaughan v. Yanderstegen, 
 2 Drew., 289. 
 
 8. J. B. assigned a policy upon his life, in 
 trust, for the benefit of his sister and her chil- 
 dren, if she or they should outlive him. He 
 delivered the assignment to one of the trustees, 
 but retained possession of the policy. Notice 
 of the assignment was not given to the in- 
 surer, and afterwards J. B., for a considera- 
 tion, surrendered ths policy and a bonus de- 
 clared upon it. to the company. This bill wi^s 
 filed by the surviving trustee to have the value 
 of the policy replaced. Held, upon delivery 
 of the assignment nothing remained to be 
 done to give effect to it, hence J. B. must give 
 security for the whole value of the policy. 
 Forteseae o. Bamett, 3 Myl. & K., 36. 
 
 IV. When it vitiates the fouct. 
 
 1. Assignment of the policy was prohibited. 
 It was assigned, but the property insured was 
 not included in the assignment Held, insur- 
 ers were discharged. Smith v. Saratoga Mutual 
 Fire Ins. Co., 1 Hill, 497; 3 id., 508. 
 
 8. Policy to <J. & R., on personal property, 
 stipulated: "If the same or any interest 
 therein shall be assigned without the compa- 
 ny's assent in writing indorsed hereon, it shall 
 be thenceforth null, and the assignment of the 
 interest of the insured in this policy, or any 
 claim thereunder, whether subsequent or pri- 
 or to loss or damage, without the company's 
 consent, shall render the policy void and of 
 no effect March 17th, G. made a general as- 
 signment to T. and R. ; and about four months 
 after, the loss occurred. Held, a violation of 
 the condition. Dey v. Poughke^sie Mut. Ins 
 Co., 23 Barb., 623. 
 
179 
 
 ASSIGNMENT OF POLICY, 
 
 180 
 
 When insurers cannot urge as a defense. 
 
 3. Stipulated: " It shall be void if pledged 
 or transferred without insurer's consent." 
 
 I Held, to be construed strictly, and nothing but 
 an eflFectual transfer or pledge will come with- 
 in it; and a general assignment, " including 
 all policies of insurance " did not pass one 
 which was in the hands of the insiu'ed's agent 
 who had a lien upon it; but where the insured 
 assigned his effects, including his insurance 
 policies in trust, to pay his debts and the sur- 
 plus if any to himself." Held, the insured 
 must show, that there was a surplus, before 
 he could recover. Lazarus v. Commonwealth 
 Ins. Co., 5 Pick., 76. 
 
 4. Stipulated : " Not to be assigned with- 
 out the consent of the company indorsed," 
 which stipulation was violated. Held, in- 
 surers were released. Ferree v. Oxford, Ins. Co,, 
 67 Penn. St, 373; s. c, 8 Phila.,513. 
 
 T. "When insueees CAiraroT uege as 
 
 A DEFENSE. 
 
 I. Policy to A. for one year. Stipulated: 
 " To be void in case of a total or partial assign- 
 ment of the policy, unless made with insurers' 
 consent in writing indorsed. The risk not 
 being changed, the policy may be continued 
 for such further time as might be agreed upon, 
 the premium for its renewal being paid, and 
 its payment indorsed or a receipt giveh." A 
 blank assignment printed upon the policy was 
 filled up by the insured September 13, 1856, 
 by which he assigned all his title and interest 
 in the policy to C, the mortgagee of the,' 
 premises insured. March 14, 1857, insurers', 
 agent received the premium from C. and re- 
 newed the policy by indorsing a ^receipt for: 
 the premium immediately under the assign- 
 ment mentioned. Held, the jury had the right 
 to find that when the agent renewed the policy, 
 be knew of the assignment, and that was a suf- 
 ficient consent to bind the defendant. Bilson 
 e. Manufacturers Ins. Co., 7 Am. Law Reg., 
 661. 
 
 2. Stipulated : " To be void if assigned, trans- 
 ferred or pledged without insurer's previous 
 written consent." The policy was made in the, 
 name of H., or account of whom it may con- 
 cern, loss payable to the order of H. The in- 
 surance was made by the express wishes and, 
 authority of the plaintiff to cover his interest 
 in the property insured. Held, the plaintifl's 
 rights arose under the original insurance, not 
 90 
 
 under any assignment, and therefore the con- 
 ditions stipulating against an assignment did 
 not affect the rights of the parties. Aldrieh v. 
 Equitable Safety Ins. Co.. 1 W. & M., 273. 
 
 3. The policy prohibited an assignment un- 
 less made with the insurers' consent. Hdd, an 
 assignment under the bankrupt law to the 
 oflScial assignee in bankruptcy did not affect 
 the validity of the policy (citing Wilkinson b. 
 Wilkinson, 10 Eng. C, 258), Starkueather 
 ■0. CleeOand Ins. Co., 3 Abb. Cir. C. 67. 
 
 4. An assignment of the policy does not 
 affect it unless prohibited by its terms. Marl 
 V. Shaw,, 1 Johns. C, 314 
 
 5. Stipulated : " The interest of the insured 
 in this policy is not assignable." Insured 
 made a general assignment to pay creditors. 
 Held, no breach of the condition. The People 
 V. Beigler, Hill & D., 133. 
 
 6. All assignment of the policy, or any in- 
 terest in it, was forbidden, whether made prior 
 or subsequent to the loss. The plaintiff as- 
 signed his claim after the loss occurred. Held, 
 no defense to the action. Goit v. National 
 Protection Ins. Co., 35 Barb., 189 ; Courtney v. 
 Nm York City Ins. Co., 38 id., 116. 
 
 7. An assignment of the claim after loss 
 does not affect the rights of the parties. 
 Briektav. Nma York La Fayette Ins. Co., 3 
 Hall, 372. 
 
 8. Stipulated: "Not to be assigned, trans- 
 ferred, or sold, either before or after a loss, 
 without the company's consent expressed by 
 indorsement" Held, an assignment of a claim 
 against the company, made after the loss had 
 occurred, was not prohibited, and if it were, 
 the prohibition would be illegal and void. 
 CarroU 1^ Charter Oak Int. Co., 38 Barb., 403; 
 s. G., 40 id., 393; 1 Abb. Dec, 316. 
 
 9. "To be void if the policy shall be as- 
 signed, either before or after a loss, without 
 the consent of the company." The policy was 
 assigned ,generally, and presented to insurers^ 
 agent for approval, who refused to approve an 
 assignment, except as to that portion of the 
 property not consumed by the fire. Held, no 
 defense to the action. Manley ®. Insurance 
 Co. of North America, 1 Laus., 20. 
 
 1 0. Policy upon steamboat, valued at double 
 the sum insured, procured by an agent for the 
 plaintiff, payable in case of loss to the agent, 
 — stipulated: "To be void in the case of its 
 being assigned, transferred, or pledged, with- 
 out the consent, in writing, of the insurer." 
 
181 
 
 ASSURED OR INSURED— AT AND FROM. 
 
 182 
 
 Miscellaneous. 
 
 The agent, at the time the policy was procuretl 
 and at tlie time the vessel was lost, was a cred- 
 itor of the plaintiff; and the policy remained 
 in his hands until after the loss. Before the 
 loss happened the insured made a general 
 assignment of all his property, including the 
 steamboat, other yessels, choses in action and 
 policies of insurance, in trust, to pay some of 
 his creditors in full, and others pro rata, or in 
 full, the surplus, if any, to the use of the in- 
 sured. Insurers never assented to the assign- 
 ment ; but after payment in full to his credit- 
 ors there was a surplus, without resorting to 
 the amount claimed under this policy. Held, 
 the assignment included only*Such policies as 
 the insured could legally assign, and this was 
 not such a one. Lasarus v. Commonwealth 
 Ins. Co., 19 Pick., 81. 
 
 1 1 . Stipulated : " Neither the policy nor any 
 claim thereunder shall be assigned, either 
 prior or subsequent to a loss, except by the 
 company's consent manifested in writing. 
 After the loss occurred, assured assigned his 
 claim. Seld, the condition was void and null 
 so far as it attempted to prohibit an assign- 
 ment of a chose in action. West Braru^ Ins. 
 Co. V. Hdfenstein, 40 Penn. St., 289. 
 
 12. The policy by its terms prohibited an 
 assignment, unless approved and indorsed 
 thereon by the secretary or other authorized 
 o£5cer. The president assented to the assign- 
 ment, which was written on a separate piece 
 of paper, and attached to the policy by a wafer. 
 Held, an indorsement within the meaning of 
 the policy. Pennsylcania Ins. Co. «. Bowman, 
 44 Penn. St, 89. 
 
 13. The policy may be assigned after loss. 
 Carter e. Humboldt Ins. Co., 12 Iowa, 287. 
 
 14. Stipulated: "If this policy shall be 
 assigned either before or after a loss without 
 the consent of the company indorsed hereon, 
 it shaU be void." An assignment was made 
 shortly after the fire occurred. Hdd, no de- 
 fense to the action. Pennebaher v. TotiMnson, 
 1 Tenn. Ch., 598. 
 
 15. The policy prohibited any assignment 
 of it before or after the loss, but it was made 
 loss, if any, payable to the plaintiff. Hdd, he 
 could recover on it Mershon p. National Ins. 
 Co., 34 Iowa, 87. 
 
 16. The policy stipulated that it should not 
 be assigned without the consent of the com- 
 pany indorsed upon it Held, it did not 
 prevent an assignment after the loss oc- 
 
 curred. Walters <o. Washington In*. Co., 1 
 Cole, 404. 
 
 17. "Payment to be made to the legal rep- 
 resentatives of the insured, but if assigned, 
 notice to be given to the company." Held, 
 not a limitation upon the power to assign; 
 that to pay to the legal representatives was 
 designed to meet a case where the insured 
 should die without having made an assign- 
 ment of the policy; and that thereasons which 
 require the assent of fire insurers to as:3ign- 
 ments of fire policies have no force in policies 
 upon human life. New York Life Ins. Co. v. 
 Flack, 3 Md., 341. 
 
 1 8. A rule of the company provided that if 
 the vessel should be mortgaged or assigned, 
 the mortgagee must become personally liable 
 to pay premiums, or the jmlicy would be void. 
 Insured assigned the policy. Held, no breach 
 of the rule, for the assignment of the policy 
 was not an assignment of the vessel. Alexan- 
 der V. CampbtO, 41 L. J. Ch., 478 ; 27 L. T. (N. 
 8.), 417. 
 
 VI. Geneeallt. 
 
 1. A written promise to pay a stmt of mon- 
 ey upon the happening of a contingency is a 
 subject of transfer for value. St. Jo7m v. 
 American Mutual Life Ins. Co., 13 N. T. 31 ; 
 2 Duer, 419; Ashley v. Ashley, 3 Sim., 149. 
 
 2. All contracts for the payment of money, 
 whether expressed or implied, are assignable 
 under the Maryland statute of 1829, ch. 51. 
 New York Life Ins. Co. o. FlaOc, 3 Md., 341. 
 
 ASSURED OR INSURED. 
 
 The person to whom flie insurance money 
 was made payable "in case of loss," was not 
 the person insured. Held, he comes not with- 
 in the terms, assured or insured. Sandford «. 
 Mechanics Mutual Fire Ins. Co~12 Gush- 541. 
 
 AT AND FROM. 
 
 (See Potior.) 
 
 1. "At and fh>m." Held, if the vessel be 
 abroad in a foreign port or expected to arrive 
 at such port in the course of her voyage, the 
 
 91 
 
183 
 
 AT AND FROM. 
 
 -i84 
 
 Miscellaneous. 
 
 policy attaches from the time she arrives at 
 that port; if she has been a long time at that 
 port, the policy attaches from the time prepa- 
 rations are commenced for the voyage insured ; 
 if the party insured acquired ownership sub- 
 sequent to that time, but before the date of the 
 policy, then the policy attaches from the time 
 ownership was acquired. If the ship is at 
 home in port, the policy attaches from its date 
 (citing Smith v. Sleinbach, 3 Caines C, 158; 
 Garrigues «. Coxe, 1 Binn., 592; Chitty v. 
 Selwyn, 2 Atk., 359; Camden v. Conley, 1 W. 
 Blk., 417; 1 Marsh Ins., 362; Bird b. Appleton, 
 8 Term, 562; Bell v. Bell, 3 Camp., 475; Hull 
 ■B. Cooper, 14 East, 479 ; Horneyer v. Lushing- 
 ton, 15 id., 46; Annan v. Woodman, 3 Taunt., 
 299; Patrick v. Ludlow, 3 Johns. C, 10; 
 Kemble v. Bowne, 1 Caines, 75 ; Gladstone v. 
 Clay, 1 Mau. & Sel., 418; Forbes v. Wilson, 1 
 Marsh Ins., 155). Seamans 'b. Loring, 1 Mason, 
 127. 
 
 2.-At'and from Barbados, and at and from 
 thence to Trinidad, and at and from Trinidad 
 back to New, York. She proceeded to Barba- 
 dos, thence to port of Spain, Trinidad, the only 
 port of entry in the island, took in a part of Jier 
 return cai'go, and sa,iled thence for the port of 
 fiyslop, in the same island, for the residue. 
 She was lost before she reached Hyslop. Heldy 
 " at and from an island is not the same as at 
 and from a port; that at and from an island 
 must be intended as a license to use the differ- 
 •ent ports of tlie island, for the purpose of ob- 
 taining the return cargOj therefore she had 
 liberty to go to other ports in the island for 
 the purpose of completing the cargo, and to 
 return to port of Spain for her clearance (cit- 
 ing Camden b. Conley, 1 W. Black., 417 ; Bond 
 c. Nutt, Cowp., 601 ; Thelluson «. Ferguson, 
 •1 Doug., 360). Biokey v. Baltimore Ins. Qo., 
 7 Cranch, 327. 
 
 3. " At and from " means from the moment 
 the ship arrives %t the port whence the policy 
 is to attach ; but where the ship has been ip. 
 that port long prior to effecting the insurance 
 the risk dpes not commence till some act is 
 done towards equipping her for the voyage, or 
 until the day on which she is stated to have 
 been in safety in that port. Kemble v. Bowne, 
 1 Caines, 75. 
 
 4. A policy " at and from " takes effect from 
 the time the goods are put on board. Patrick 
 V. LvMow, 3 Johns. C, 10. 
 
 6. Policy on cargo at and from Portsmouth. 
 93 
 
 It had been previously laden at Newburyport. 
 Held, no representation that the cargo was 
 laden at Portsmouth, for there was no stipula- 
 tion that the risk was to begin on taking in 
 the cargo, nor was it laden subsequently to her 
 departure from the designated port. Silloway 
 «. Neptune Ins. Co., 12 Gray, 73. 
 
 6. Insurer refused to write the policy at and 
 from Amsterdam ; but accepted the risk and 
 made the policy "from Amsterdam only." 
 Vessels of her tonnage could not take a full 
 cargo at Amsterdam. She took in part there 
 and passed over the shoals into the Texel, 
 where she took the remainder from a lighter. 
 The wind being adverse, she remained about 
 eight days, during which she sustained dam- 
 age in a heavy gale. Held, the policy attached 
 so soon as she sailed from Amsterdam, though 
 she was to take the balance of her cargo in the 
 Texel. Uey ■o. South Oa/rolina Ins. Oo.,3 Brev., 
 329. 
 
 7. On schooner at and from New Orleans 
 to Havana, from thence to Burita and back to 
 New Orleans. She arrived at Havana and 
 was there lost in port. Seld, the word 
 "thence" is not a term of exclusion or of lim- 
 itation, but descriptive of the voyage; and al- 
 though the word " at " is used to fix the insur- 
 ance in port at commencement of the voyage, 
 still the word " at " is not necessary to cover 
 the risk while the vessel is at an intermediate 
 port within the voyage insured. BradUy v. 
 Nashville Ins. Co., 3 La. An., 708. 
 
 8. Defendant was' instructed to insure goods 
 on board the Pearl from Gibraltar to Dublin. 
 He knew the goods were laden at Malaga. 
 Held, the real neglect of the broker consisted 
 in his failure to state to the insurer that the 
 goods were lad«n at Malaga, because a policy 
 on goods to commence "from the loading 
 thereof" at a place named does not cover 
 goods laden at another place. Pa/rk v. Ha/m- 
 mond, 6 Taunt., 495; s. c, 4 Camp., 344; 2 
 Marsh., 189 ; 1 Holt N. P., 80. 
 
 9. The policy attaches during the vessel's 
 stay at the home port, if it reads "at and 
 from." Palmer v. Marshall, 8 Bing., 79; 1 L. 
 J. (N. S.), C. P., 19; 8 Bing., S17; 1 M. & S., 
 161, 454. 
 
 10. On freight " at and from Algoa," Held, 
 it attached when she was ready to begin to 
 take in the home cargo. WiUiamiion v. Innes, 
 8 Bing., 82 n.; 1 M. & Rob., 88. 
 
 H. Time policy, "At and from St. Mi- 
 
185~ 
 
 ATLANTIC .CABLE — ATTACHMENT AND GARNISHMENT. 
 
 186r 
 
 MisceUameous. 
 
 (Gael's, to any port or ports whatsoever and 
 "wheresoever." She arrived at the island of 
 Graciosa, came to anchor in an open road- 
 stead and remained there for twelve days 
 taking on cargo. A storm came on, she 
 put to sea, remained at sea six days, re- 
 turned and took on cargo for six days longer, 
 when another storm came on, she put to 
 sea again and was totally lost. The open 
 roadstead was the usual place for loading 
 goods at that island. Held, a loss within the 
 policy, for the roadstead was a port within the 
 meaning of the parties. Cockejf v. Atkinson, 2 
 B. & A., 460. 
 
 12. She was chartered from Liverpool to 
 Lagos, there to discharge and reload for the 
 TJ. K. for a lump sum as freight, payable half 
 before sailing out and the other half on deliv- 
 ery of the cargo at home ; and this policy was 
 on freight at and from Lagos to U. K., to com- 
 mence from the loading of the said goods or 
 merchandise on board the said vessel as above. 
 She discharged the greater portion of her 
 cargo outside the bar, and was taken in tow 
 by a tug. In crossing the bar she struck, 
 drifted upon the beach, and was abandoned. 
 No part of the homeward cargo had been put 
 on board. Held, the contract prohibited any 
 liability against insurers until the goods were 
 actually on board. Beckett v. Wett of England 
 Afarine Ins. Co., 25 L. T. (N. S.), 739. 
 
 ATLANTIC CABLE. 
 
 1. "At and from Ireland to Newfoundland, 
 to commence with the lading of the cable on 
 board, and to continue till it be laid in one 
 continuous length between Ireland and New- 
 foundland, and until one hundred words shall 
 have been transmitted each way. Valued at 
 £300 on the Atlantic cable, value say on twen- 
 ty shares at £10 per share." Opposite the 
 peril clause was written in the margin : " It is 
 hereby understood and agreed, that this poli- 
 cy, in addition to all perils and casualties 
 hereby specified, shall cover every risk and 
 contingency attending the conveyance and 
 successful laying of the cable." The attempt 
 to lay the cable failed, by breaking, whilst it 
 was being hauled in to remedy defective insu- 
 lation. Held, the policy was not on the cable 
 merely, but on the adventure, that is, the suc- 
 cessful laying of it between Ireland and New- 
 
 foundland; that the loss was total, notwith- 
 standing one-half of the cable was saved. 
 Wihon v. Jones, 1 L, R. Ex., 193 ; 4 H..& C, 
 231; 36 L. J. Ex., 78; 14 "W. K., 499; 14 L. T.. 
 (N. S.}, 65; affirmed in Ex. Cha., 2 L. E. Ex., 
 139 ; 15 W. R., 435 ; 15 L. T. (N. S.), 669. 
 
 2. " On one £1,000 share in the Atlantic 
 Telegraph Co., valued at £1,100, to cover and 
 include the successful working of the cable 
 when laid, and all and every danger, accident 
 and risk that may be incurred on sea, or on. 
 land, in all or any boat, ship and craft whatso- 
 ever and wheresover, until the final, complete 
 and successful laying of the Atlantic tele- 
 graph cable, from shore to shore ; but not liable 
 unless cl^im amounts to three per cent." The 
 cable was laid from the Irish to the North 
 American coast, but during a previous ineffec- 
 tual attempt to lay it a portion was lost by, 
 perils of the sea, anil on the second attempt, in 
 which more cable was lost, a quantity of su. 
 perfluous cable was carried to meet contingen- 
 cies. A- failure to sufficiently protect the 
 copper wire from the chemical action of the. 
 sea water, and not any mechanical action of 
 the sea, prevented electrical communication. 
 Held, the loss caused by the chemical action 
 of the sea was not a charge against the in- 
 surer; that the portion of the cable lost was 
 to be estimated at the cost of that substituted; 
 that as to the portion carried to provide 
 against accident, the value of it was to be as- 
 certained by determining whether coiling 
 it in the hold of the vessel, or other circum- 
 stances, had depreciated its marketable value; 
 that it was to be taken into account at its mar- 
 ketable value ; that the whole value of the 
 cable that ever was exposed to peril, includ- 
 ing that portion lost, must be ascertained ac- 
 cording to its cost when shipped free on 
 board, and the actual loss compared with it, 
 for the purpose of ascertaining whether the 
 loss amounted to less than three per cent, on 
 the whole value. If it did riot amount to 
 three per cent., the insurer was not liable. 
 Patterson v. Harris, 1 B. & 8., 336 ; s. c, 7 
 Jur. (N. 8.), 1276; 30 L. J. Q. B., 354; 2 B. & 
 8., 814; 9 Jur. (N. 8.), 173. 
 
 ATTACHMENT AND GARNISHMENT. 
 
 I. Wheit the action wrLL lie. 
 
 II. IT WILL NOT LIB. 
 
187 
 
 ATTACHMENT AND GARNISHMENT. 
 
 188 
 
 When the action will lie — When the action will not lie. 
 
 I. When the action will lie. 
 
 1. A sum fixed by arbitrators, as due from 
 the insurer, is liable to attachment at a suit of 
 the creditor. BoyU v. FrdrMin, Fire Int. Co., 
 7 W. & S., 76. 
 
 2. An insurance company is liable to gar- 
 nishment, though the claim is unliquidated. 
 Oirardlns. Co. c. Field, 45 Penn. St., 129. 
 
 3. Trustee process will lie where a loss has 
 been sustained, and a vote passed by the in- 
 surance company to pay it. Bwamscot Ma- 
 chine Co. e. Partridge, 25 N. H., 369. 
 
 4. On household furniture exempt from at- 
 tachment; a loss occurred, for which the com- 
 pany was liable. Hdd, trustee process will 
 lie against the fund, for when the property 
 was consumed, it ceased to be household furni- 
 ture in the possession of the debtor; nor was 
 it household furniture of the debtor in the 
 hands of the insurance company. Wooiter c. 
 Page, 54 N. H., 125. 
 
 5. " For whom it may concern." A part of 
 the claim belonged to a person not named in 
 the policy. Beld, it was subject to attach- 
 ment in a suit against him. City Baitk «. 
 Adams, 43 Me., 455. 
 
 6. Process of garnishement may be made 
 upon the authorized agent of a foreign insur- 
 ance company, he being a chief or managing 
 officer within the meaning of sec. 36, art. I of 
 the attachment act. McAllister v. Pennsyl- 
 vania Ins. Co., 28 Mo. 214. 
 
 11. When the action will not lie. 
 
 1. Insurers were summoned as trustees. In 
 their answer they expressly declared that they 
 never waived nor intended to waive the benefit 
 of the conditions requiring a particular ac- 
 count of the loss. Held, answers of the 
 trustees were to be taken as true, and, there- 
 fore, they must be discharged. PettengiU e. 
 Einks, 9 Gray, 169. 
 
 2. Trustee process was made upon the in- 
 surer's secretary in Boston, in the A. M., Jan- 
 uary 18, 1861. About three hours thereafter 
 the vice p^resident settled the claim at Wor- 
 cester, forty-five miles from Boston, and de- 
 livered to insured a sight draft negotiable. 
 Hdd, it was a negotiable promissory not« of 
 the company payable at sight, and was a dis- 
 charge of the company's liability. Spooner v. 
 Rowland, 4 Allen, 485. I 
 
 94 
 
 3. The court is bound, by the statute, to 
 take the statement of the defendants as true 
 in a case where the proceedings are founded 
 upon trustee process. Bostwick v. Bass, 99 
 Mass., 469. 
 
 4. Neither the corporation nor the receivers 
 can be charged by trustee process after re- 
 ceivers are appointed and an injunction issued 
 under Gen. Stats., ch. 58, sec. 6. Columbian 
 Book Co. V. DeGolyer, 115 Mass., 67. 
 
 5. Mortgagor procured insurance; the mort- 
 gagee assigned the mortgage to the plamti£ 
 The property was damaged by fire. The com- 
 pany's agent gave insured a draft on the com- 
 pany for the loss, which was transferred by 
 insured before the statutory notice of a claim 
 of lien was received by the insurer. Held, the 
 trustee must be discharged. Bums «. Collins, 
 64 Me., 213. 
 
 6. Gramishement was served upon defend- 
 ants. They answered, denying that they had 
 money or effects of the principal debtor. A 
 subsequent writ was issued, but before service 
 the debt on which the money was to become 
 due had been assigned to another creditor of 
 the principal debtor. The defendant answered 
 the first writ by denying all indebtednss, to 
 which there was neither objection nor tra- 
 verse. In answer to the second writ they 
 brought into court the sum of |800. Held, the 
 first writ was functus officio, and the inter- 
 mediate assignment gave to the assignee a 
 right to the fund, superior to that of the 
 creditors, whose garnishments were sued out 
 subsequent to the assignment Daniels v. Mein- 
 hard, 53 Ga., 839. 
 
 7. The rights of a garnishee are to be care- 
 fully protected. He is to be charged upon his 
 contract only as it exists between himself and 
 his creditor, and he is never to be placed in a 
 situation where he can be compelled to pay 
 the debt twice, nor be unnecessarily exposed 
 to litigation and expense. The assignee of an 
 uunegotiable debt must give notice to' the 
 garnishee of the assignment, in time to en- 
 able him to show the assignment in his an- 
 swer, or at least before judgment is rendered 
 against him. Walters v. Washington Ins. Co., 
 1 C!ole, 404. 
 
 8. Stipulated: "Insurer shall have a right 
 to replace the articles damaged or lost, or to 
 take the goods at their appraised value, and 
 be at liberty to repab the premises insured." 
 Held, insurers were not liable to garnishee 
 
189 
 
 ATTORNEY- AT-LAW— AT SEA. 
 
 190 
 
 At sea — Not at sea. 
 
 process, so long as their right to election re- 
 mained open. Marti «. Detroit Fire and Ma- 
 rine In». Co.. 28 Mich., 201. 
 
 9. Garnishee summons served May 26, 1866. 
 The garnishee had made a contract of insur- 
 ance with the debtor upon certain property 
 trhich had b3en consumed before service of 
 process, but neither notice nor proofs of loss 
 had been made. An adjustment of the claim 
 was determined between the parties at $3,500, 
 a part of which was paid by the garnishee 
 to certain mortgagees, and the balance as- 
 signed by insured after service of process. 
 Seld, at the time of service of the summons 
 there was nothing absolutely due Cram the 
 garnishee to the debtor, therefore, the gar- 
 nishee was discharged. Qei» «. Bechtner, 12 
 Minn- 279. 
 
 ATTOKNETS-AT-LAW. 
 
 1. An attomey-at-law appeared before a 
 justice of the peace, and made defense for the 
 defendant, a corporation, and took an appeal 
 from the judgment rendered, Seld, error to 
 to dismiss the appeal on the ground that no 
 authority to take it had been shown, for the 
 court will presume that the attorney had 
 authority. Shroudenieek v. Phanix Ins. Co., 
 15 Wis^ 632. 
 
 AT SEA. 
 
 I. At sea. 
 II. Not at sea. 
 
 I. At sea. 
 
 1, Policy for twelve csdendar months — 
 stipulated: "That should the vessel be at sea 
 at the expiration of the term, the risk to be 
 continued under the policy at an agreed pre- 
 mium until arrival at port of discharge." 
 The vessel was in a British port at the time 
 the year expired, carried there against the 
 will of her master; a loss occurred after- 
 wards in the ftirther prosecution of the voy- 
 age. Held, being on the voyage, which had 
 been commenced within the time of the origi- 
 
 nal risk, the policy continued to protect her 
 after the expiratiDn of the year, although she 
 was not then literally at sea. Wood v. Neui 
 England Marine Ins. Co., 14 Mass., 31. 
 
 3. On ship for a term, but stipulated: " If 
 at sea when the term expires, the risk to con- 
 tinue until her arrival in port." Before the 
 year expired she was at Bangor, Wales, ready 
 tor sea. She dropped down seven or eight 
 miles, intending to proceed to Boston, but 
 head winds prevented and she came to anchor 
 in the straits and remained there till after the 
 term expired. Held, she was " at sea " within 
 the meaning of the term. And in the same 
 case where another policy by another insurer 
 provided that the risk should continue if she 
 was " on a passage " when the term expired, it 
 was held, she was " on a, passage." Bowen v. 
 Hope Int. Co., 20 Pick., 275. 
 
 3. " On ship at and from October 7, 1837, at 
 noon, one year. If at sea at the expiration of 
 the year, the risk to continue at the same rate 
 of premium until her arrival at port of desti- 
 nation in the V. S." She sailed for Cowes and 
 a market, with directions to wait there for in- 
 structions, at which place she arrived and re- 
 ceived instructions to discharge at Rotterdam, 
 where she arrived September 20, 1838. Dis- 
 charged cargo the 27th, but being unable to 
 get a return freight for the U. 8., the master 
 determined to go to Newcastle-upon-Tyne. 
 She finished taking in ballast October 4th, and 
 had all her papers except a clearance, which 
 she was to procure at Helvoetslnys. She drop- 
 ped into the river Maese the 5th at 4:30 P. M., 
 but could not get down because the wind was 
 ahead. Had it not been so, she would have 
 gone t» sea immediately; nor did she sail till 
 the 8th, being prevented by head winds and a 
 heavy sea. She reached Helvoetsluys on the 
 10th, took her clearance, proceeded to New- 
 castle where she took cargo, sailed December 
 1st for New York, and was damaged on the 
 voyage. Held, she was at sea within the mean- 
 ing of the policy at the expiration of the year, 
 (citing Bowen v. Hope Ins. Co., 20 Pick., 27oJ, 
 therefore the insurers were liable for the loss. 
 Union Im. Co. v. Ty»en, 3 Hill, 118. 
 
 11. Not at sea. 
 
 1. Term policy one year commencing Jan- 
 uary 21, 1835. Stipulated: " If at sea at the ex- 
 pirationof the term, the risk to continue at the 
 
m 
 
 AtTTHORITT — BAREATRT. 
 
 193 
 
 Where the policy includes. 
 
 same rate of premium until her arrival at the 
 port of destination." Eight months after it com- 
 menced she sailed from New York for St. Barts, 
 Curacoa and Maracaibo, with cargo for both 
 places, to return to New York. On her pass- 
 age to St. Barts she sustained damage and put 
 into St. Thomas for repairs ; completed them 
 and sailed December 4th ; arrived at Curacoa 
 on the 8th ; discharged cargo and sailed for St. 
 Thomas in ballast December 20th, intending 
 to take cargo of coffee engaged conditionally 
 at that place, to carry it to Philadelphia. She 
 did not reach St. Thomas in time for the 
 cargo, and it was sent to Philadelphia by an- 
 other vessel. January 9, 18B6, she was found 
 leaking badly at St. Thomas, and it became 
 necessary to strip her bottom and copper it; 
 the repairs were completed January 13th, at 
 which time there was half of her cargo en- 
 gaged. On the 25th she commenced taking it 
 in, finished it, and sailed for New York on the 
 31st, on which passage she was lost. Held, 
 she was not at sea within the terms or intent 
 of the parties when the term expired. Sutton 
 «: American Ins. Co., 7 Hill, 321 ; affirming s. 
 c, 24 Wend., 330. 
 
 2. " On vessel for twelve months, ending 
 November 10, 1838, with liberty of the globe ; 
 and, if at sea at the expiration of the term the 
 risk to continue at the same rate of premium, 
 until her arrival at port of destination in the 
 United States." October 9, 1838, she sailed 
 from Rio for Jersey, in the British channel, for 
 orders. November 10th she was at sea on the 
 voyage to Jersey, and while still at sea in De- 
 cember following, slie received damage, 
 which was repaired at Falmouth, whence she 
 sailed for Altona, where she took a cargo and 
 sailed June 28, 1839, for New Orleans. Held, 
 the stipulation made the owners absolute mas- 
 ters of all the movements of the brig, for and 
 during the term of one year; that the risk 
 could be prolonged only on her bsing at sea 
 on her voyage to her port of final destination. 
 JByre v. Marine Ins. Co., 6 Whart., 247. 
 
 3. *' On ship, one year from May 20, 1854, at 
 noon. If at sea at the end of the year, then to 
 continue at a, pro rata premium until she ar- 
 rives at her port of destination." She arrived 
 at the Chincha Islands April 7, 1855. There 
 was no harbor there, but she came to anchor 
 between two of the islands and took in her 
 cargo by boats, as sea and wind would permit. 
 She sailed June 14th, obtained her clearance 
 
 96 - 
 
 at Callao, and was lost on the voyage Septem- 
 ber 30, 1855. Held, she was not at sea at the 
 end of the year, and therefore the policy ex. 
 pired at the end of the year. Oole t. Union 
 Mut. Ins. Co., 12 Gray, 501; Oookint.Neu) 
 Bngland Mut. Ins. Co., id., 506; Tilton v. 
 Trenwnt Mut. Ins. Co., id., 519, note*; Cole v. 
 Commercial Mut. Ins. Co., id., notef. 
 
 4. Stipulated: "If on a passage at the end 
 of the term, the risk shall continue until she 
 arrives at the port of destination." She loaded 
 at and sailed from the Chincha Islands forEu- 
 rope, but was obliged to call at Callao to get 
 her clearance, there being no port of entry at 
 the Islands. While at Callao the term expired, 
 and she was lost on the voyage. Seld, not on 
 a passage when the term expired. WasAingtm 
 Ins. Co. V. White, 108 Mass., 288. 
 
 AUTHORITY. 
 
 (See PBIKOtPAI, AND AezHT.) 
 
 AVERAGE. 
 
 GiniKAi. Avxkaoe; Pabtiottlab AvSBAaa; 
 Wahbantbd Fbxe rBou Atesaoe.) 
 
 AWABJp. 
 
 (See Abbitbation and Awabd.) 
 
 BARRATRY. 
 
 (See Captube aito Seizdbe; Dkttatiok; Illicit 
 Tbadb; Masteb of Ship ; NEnTBAi,iTr; Policy; 
 Pboxolate Cause or Loss ; Theft ahd Robdsbt.) 
 
 I. WhBEE the POLICT DfCLUDES. 
 II- DOES NOT INCLUDE. 
 
 III. What is. 
 
 IV. NOT. 
 
 I. "WhEEE the POLICT INCLUDES.. 
 
 1. " On schooner, to be insured in the man- 
 ner prescribed in the by-laws, subject to all 
 the restraints and liabilities therein set forth." 
 
193 
 
 BARRATRY. 
 
 194 
 
 Where the policy does not include — What is. 
 
 Stipulated: " Kot in any case, to be held to 
 pay for any loss or damage in conseqqeqce of 
 restraint, seizure or detention by any legal or 
 illegal power whatsoever, or for any damage, 
 accident or loss which may happen to any 
 vessel while she may be under such restraint, 
 detention or seizure, ffeld, it included a loss 
 by barratry, notwithstanding insured was 
 owner of the schooner. Parkhurst v. Glouces- 
 ter Fishing Ins. Co., 100 Mass., 301. 
 
 2. F. was owner. He mortgaged her to one 
 to secure certain indebtedness to several par- 
 ties. Subsequently he made a bill of sale ab- 
 solute and delivered it to plaintiif, the mort- 
 gagee, who registered her in his own name. 
 It was agreed between the pai'ties whose 
 debts she secured, that the plaintiff should 
 procure insurance upon her for the benefit of 
 the creditors, and the policy stipulated that 
 insurer " shall not be liable for a loss caused 
 by the barratry of the master, if the master is 
 owner." F. retained possession and control, 
 victualed, manned and sailed her at his own 
 expense ; but the master fraudulently ran her 
 ashore and slie was totally lost Held, F. was 
 the owner pro hac vice; hence, insurers were 
 liable for a loss by barratry. Clark v. Wash- 
 ington Int. Co., 100 Mass., 509. 
 
 3. From London by land carriage to Har- 
 wich, thence by packet to Gottenberg. Held, 
 it included every species of fraud committed 
 by the wagoner or servants, from the time 
 they were put into the charge of the carrier. 
 Soehm V. Combe, 3 Man. & Sel., 172. 
 
 II. Whebk the policy does not in- 
 clude. 
 
 1. A policy on boat, etc., does not include a 
 loss by fire, caused by the barratry of master 
 and crew (the policy was silent as to barratry). 
 Waters «. Merchants Louisville Ins. Co., 11 Pet., 
 213. 
 
 2. Stipulated: "The perils assumed are of 
 the seas, pirates, rovers, assaulting thieves, 
 jettisons, barratry of the master and marines, 
 unless the assured be owner or part owner of 
 the vessel." The plaintiff declared for a loss 
 caused by the barratrous act of the master and 
 crew. Insurers answered that the insured 
 were part owners of the vessel at the time of 
 the alleged loss. Held, a good answer. Mar- 
 ris o. Mercantile Ins. Go., 17 How. Pr., 188. 
 
 3. The master for the voyage was part 
 
 7 
 
 o\?Jier, and the policy was made for the benefit 
 of all the owners. The loss was caused by the 
 master's barratrous conduct. Held, insurers 
 were discharged, for the master of a ship who 
 is part owner cannot commit an act of barra- 
 try against the other part owners. Wilson <j. 
 General Mut. Ins. Co., 12 Gush., 360. , 
 
 4. Policy on cargo, loss averred by the bar- 
 ratry of the master. Held, insurer might show 
 that the master was owner, contrary to the 
 terms of a public bill of sale ; if he was owner 
 in fact'.loss by barratry could not be sustained. 
 Barry v. Louisiana Ins. Co., 11 Martin (La.), 
 630. 
 
 5. On ship, cargo and freight, m^de in the 
 name of " A., B. & Co., for account of whom it 
 might concern, loss by barratry not taken if 
 insured be an owner of the vessel." Held, 
 whether the master's act was barratrous or 
 not must depend on whether the policy was 
 made for the vessel's owner, and that must be 
 ascertained by determining the intentions of 
 the parties ; if the intention was to insure for 
 the owners, then the defense of barratry would 
 be valid, notwithstanding the policy was not 
 in the name qt the owner; and, if it was intend, 
 ed to cover the interest of the owner and of the 
 persons named in the policy, the contract be- 
 ing indivisible, the defense of barratry would 
 be valid. Paradise v. Sun Mut. Ins. Co., 6 
 La. An., 596. 
 
 III. "What is. 
 
 1 . A fire caused intentionally, by the direct 
 act and agency of the master and crew, for ^ 
 barratrous purpose. Held, not a loss by flrCj 
 but by barratry. Waters e. Merchants Louis- 
 ville Ins. Co., 11 Pet., 313 ; s. c, 1 McLean, 37o. 
 
 2. Where the loss is alleged to be by barra^ 
 try, it is not necessary to prove affirmatively 
 that the fraud was committed for the benefit 
 of the master. If the master commits a fraud- 
 ulent act in his character as master, it is bar- 
 ratry. Kendrick v. DeUifleld, 3 Caines, 67. 
 
 3. Taking on board a trunk of merchandise 
 and ten barrels of gunpowder, without the 
 knowledge of the owner, is barratry by the 
 master, and is no defense where the policies 
 include barratry. Suddey v. DeUtfield, 3 
 Caines, 221. 
 
 4. 1 QStired sought to recover for loss by barra- 
 try. Held, he need not prove that the master 
 was not a part owner. If that beiriiedupr 
 
 97 
 
195 
 
 BARRATRT. 
 
 196 
 
 What is. 
 
 as a defense, the onus is upon insurer. The 
 fraudulent sale of the vessel by the master, 
 and a purchase by him, does not constitute 
 such an ownership so as to make his barra- 
 trous acts' the acts of an owner. Steinbaek v. 
 Ogden, 3 Caines, 1. 
 
 6. On ship from New York to Trinidad, 
 thence to New York, with liberty to stop and 
 trade at Curacoa. Insured was owner. He 
 chartered the vessel to two others, excepting a 
 portion of the caibin, etc., the master and crew 
 to assist in handling cargo, ship owner to pay 
 them. The master agreed with the charterers 
 to deviate, they paying him $100 for it. There 
 was a deviation and a loss by capture. Held, 
 the charterers were not owners pro Jtae vice; 
 that the act of the master was barratry, and 
 the insurers were liable. M'Intyre v. Bowne, 
 1 Johns., 229. 
 
 6. On cargo, from St. Jago de Cuba to New 
 Orleans, thence to New York. Vessel and 
 cargo belonged to insured. Master was con- 
 signee. He fraudulently converted some of 
 the cargo to his own use and absconded. Seld, 
 it was a loss by barratry. Nor could the bar- 
 ratrous act be referred to the master in his 
 character as consignee, the act was properly 
 imputable to him as master. Cook d. Oommer- 
 cial Ins. Co., 11 Johns., 40. 
 
 7. One policy on vessel, another on freight, 
 and a third on cargo. The whole of the cargo 
 consisted of lawful goods admissible in the 
 port of destination : " Warranted free from 
 loss in consequence of seizure or detentioii 
 for or on account of any illicit or prohibited 
 trade, or any trade in articles contraband of 
 war." At the port of destination there was 
 found a quantity of tobaccOj «igars, and other 
 articles, the property of the master, which had 
 been clandestinely taken on board by the cook 
 and master, and of which the owners and 
 supercargo had no knowledge. The ship and 
 cargo were seized for this breach of the law, 
 and heavy expenses incurred by insured to 
 effect their liberation. Beld, the warranty did 
 not interfere with or alter the clause insuring 
 against the barratry of the master. American 
 Ins. Co. V. Dunham, 12 Wend., 463 ; affirmed, 
 15 id., 9; s. c, 2 Hall, 455. 
 
 8. Barratry covers a fraudulent or felonious 
 embezzlement or stealing of the cargo by the 
 master or crew. American Ins. Co. ■». Bryan, 
 26 Wend., 563 ; b. c, 1 Hill., 25. 
 
 9. Stealing of the cargo by the mariners 
 
 (not petty thefts) is barratry; and a policy up- 
 on the mate's adventure against barratry cov- 
 ers a loss by the theft of- the mariners; and 
 where the mate took a bill of lading, and had 
 the proceeds in dollars in his trunk, kept in 
 the cabin, afterwards removed it to the steer- 
 age (there being no negligence proven), the 
 trunk was opened and the dollars stolen by 
 the cook and steward. Held, the insurer was 
 liable. Stone c. National Ins. Co., 19 Pick., 34. 
 
 10. The acts of the master and mariners to 
 constitute barratry must be willful, not acci- 
 dental, nor caused by negligence, unless the 
 negligence be such as amounts to evidence of 
 fraud; they must be done for a fraudulent pur- 
 pose, contrary to the duties of the master and 
 mariners ; but they need not be done with an 
 intent to promote the interests of the master 
 or mariners. In general the motive for such 
 acts is immaterial. If the master sell or dis- 
 pose of any part of the ship's tackle, apparel, 
 furniture, outfits, or supplies, to obtain money 
 for his own use, or fraudulently converts to his 
 own use money furnished by the owners for 
 the purchase of supplies, it is embezzlement, 
 and, so far as they interrupt or defeat the pur- 
 pose of the voyage, constitute barratary ; and 
 if the acts are committed while the master is 
 in a state of intoxication, it is barratry not- 
 withstanding. Lawton v. Sim Mut. Ins. Co., 
 2 Cush., 500. 
 
 11 . If the policy warrants the property 
 neutral, but at the same time insures against 
 loss by barratry, the insurer is liable if the 
 barratrous acts of the master destroyed the 
 neutral character of the property insured. 
 And an unlawful rescue is an act of barratry ; 
 and if auTDsufflcifintJuEce is put on board in 
 consequence of a promise made by the neutral 
 crew, a rescue by them is unlawful. But the 
 captor must put a sufficient force on b3ard, 
 and a failure to do so may be considered as 
 an abandonment of the captured vessel, unless 
 the neutral has promised to navigate her to 
 the port of destination. Barratry is the will- 
 ful breach of law to the prejudice of the own- 
 ers, and it is not necessary that the master 
 acted from motives of self interest. Wilcocks 
 n. Union Ins. Co., 2 Binn., 574. 
 
 1 2. Policy included loss by barratry of the 
 mariners. First mate and master died on the 
 voyage, and the duties of master devolved up- 
 on the second mate, who took the vessel on a 
 slave trading voyage to the coast of Africa, for 
 
197 
 
 BARRATRY. 
 
 198 
 
 What is. 
 
 which she was not insured. Ho subsequently 
 converted her to his own use. Held, the sec- 
 ond mate was a mariner, though he had addi- 
 tional duties cast upon him in consequence of 
 the death of tlie master and first mate. Tate 
 r. Protection Ins. Co., 30 Conn., 481. 
 
 13. Vessel and cargo condemned as contra- 
 band. Neitlier insurer nor insured knew of 
 any contraband article, but some were put on 
 board secretly by the captain. Held, barratry 
 and the insurer was liable. Baltimore Ins. Co. 
 c. Taylor, 3 H. & J., 198, 
 
 14. The owner insured her freight, and as- 
 signed it and his policy thereon to the com- 
 plainant. He then sold the 'Vessel to another 
 person, who took passage on her for the voy- 
 age, and while he was on her, the master and 
 crew ran away with and disposed of brig and 
 cargo in fraud of the shippers and owners. 
 Held, the presence of the owner did not change 
 the offense ; that it was an act of barratry, for 
 which the insurer was liable. MiUaudnn v. 
 Neui OrleaM Ins. Co., 11 Martin (La.), 603. 
 
 1 5. On goods from London to Seville, loss 
 by barratry included. She was chartered by 
 the owner to I), for that particular voyage ; she 
 called at Guernsey with owner's consent and 
 knowledge, and took brandy in evasion of 
 the duties, but of that the charterer was igno- 
 rant She encountered heavy weather and 
 was driven back to Dartmouth, where she was 
 repaired, and proceeded on the voyage, but 
 was again damaged and unable to continue it, 
 and was obliged to put into Helford; in con- 
 sequence of the damage to the ship, the cargo 
 was spoiled. Held, the deviation was the vol- 
 untary, illegal, fraudulent act of the master ; 
 that D. was owner of the vessel pro hoe nice; 
 and the deviation being without his knowl- 
 edge or consent, the master's act was barratry, 
 for which insurers were liable. VaUezjo «. 
 Wheeler, Lofft, 631 ; Cowp., 143. 
 
 16. "Liberty to chase, capture, and man 
 prizes." She had on board some Spanish 
 prisoners who, by means unknown, were let 
 loose. They murdered the mate, confined the 
 master and all the sailors except one, who ap- 
 peared to be a confederate of the mutineers, 
 subsequently put master and sailors, except 
 the one man mentioned, on shore, and ran 
 away with the vessel. Held, evidence of loss 
 by barratry. Hvuiks v. Thornton, Holt, N. P., 30. 
 
 1 7. Insured declared for a loss caused by 
 the barratrous and fraudulent conduct of the 
 
 master, who carried the ship and cargo to a 
 place which subjected them to capture and 
 seizure, where they were condemned as ene- 
 my's property. Held, the sentence did not 
 disprove the allegation that the loss was 
 caused by the master's barratrous conduct. 
 Ooldsehmidt o. Whitmore, 8 Taunt., 508. 
 
 18. S. agreed, February 30, 1816, with F., 
 the master of the brig Josie, that he should 
 immediately take a cargo named and proceed 
 to Figueras and there deliver according to 
 bills of lading, and with all dispatch sail di- 
 rect to Pernau, and there take cargo men- 
 tioned and sail therewith direct to Oporto, 
 deliver cargo and end voyage. After she took 
 her cargo at London, she proceeded to sea 
 under the command of Gouvea. F. remained 
 in England. She arrived at Figueras March 
 26, proceeded in ballast to Pernau, took her 
 cargo, sailed for Oporto and put into Deal to 
 repair a leak. While she lay at Deal, the 
 owner came on board and assumed the man- 
 agement, and willfully ran her ashore, the 
 master Gouvea being privy to and concurring 
 in it, and she was lost. Held, it was a loss by 
 barratry, notwithstanding the owner of the 
 vessel committed the wrong. Soares v. Thorn- 
 ton, 7 Taunt., 637; s. c, 1 Moore, 373. 
 
 19. The vessel put into port to repair,' and 
 while there the master procured forged papers 
 giving her a false name. He was absent from 
 her for a time much longer than neces.sary to 
 complete repairs, and ran away with her to 
 the Azores. Held, the delay at the port of 
 distress was not deviation; that it was a loss 
 by barratry, and the act of barratry com- 
 menced with the delay. Roacow c. Corson, 8 
 Taunt, 684. 
 
 20. The loss was alleged to be by barratry. 
 Three Spanish prisoners were received on 
 board and allowed free use of the ship; but 
 they joined the seamen in a mutiny, and ran 
 away with and put her ashore. Held, insurers 
 were liable. Toulmin v. Inglis, 1 Camp., 421. 
 
 21. The master unlawfully traded at D'El- 
 mira, a Dutch settlement Holland was then 
 at war with Great Britain. She was captured 
 by an English frigate, and condemned for 
 trading with the enemy. She had no instruc- 
 tions to go there; but the master had instruc- 
 tion generally to make the best purchases 
 with dispatch. Held, the master's conduct 
 was barratrous, for which the insurers were 
 liable ; and, in the absence of express orders 
 
 99 
 
199 
 
 BARRATRY. 
 
 200 
 
 What is not. 
 
 to the contrary, obedience to the laws of the 
 land is impliedly directed; and an act done by 
 the master, in violation of the laws of the 
 land, is a breach of the implied orders of his 
 owners. Earle v. IloweToft,S'East, 126. Fraud 
 is barratry, though negligence might not be. 
 Ibid, note. 
 
 22. She was insured "in any lawful trade," 
 and barratry was one of the 'risks assumed. 
 The master smuggled certain goods, for which 
 she was seized ; and,i in order to procure res- 
 titution, insured expended £408. Held, the 
 words " lawful trade " were restricted to the 
 trade in which the master was directed by the 
 owners to employ her, and the insnrers were 
 liable. Hmeloek v. Hancill, 'A Term, 277. 
 
 23. On goods from Jamaica to New Or- 
 leans. The person who acted as master navi- 
 gated her to the mouth of the Mississippi, 
 dropped anchor, w«nt up the river to New 
 Orleans in the sliip's boat, returned to her, 
 stood awa3' and she was never afterwards heard 
 of. Held, prima fade evidence to establish a 
 claim for loss by barratry. Boss ». Hunter, 4 
 Term, 33. 
 
 24. In order to quiet the apprehensions of 
 the sailors and induce them to enter, the mas- 
 ter agreed to and did procure letters of marque, 
 but with no intention of cruising or making 
 reprisals. There was no certificate of clear- 
 ance, without which the letter of marque, by 
 38 Geo. Ill, ch. 66, sec. 15, was declared 
 void. The master was instructed to proceed 
 with all expedition and deliver his cargo 
 agi'eeably to the charter party; but, a few 
 days after she 'bailed, they fell in with an 
 American sh'ip, which they boarded, plun- 
 dered and released. Subsequently, she cap- 
 tured a vessel of the enemy, sent her into Ber- 
 muda, followed her and libeled her in the 
 name of the master and owners. The ship 
 insured was driven ashore at Bermuda and 
 lost. Held, taking void letters of marque did 
 not affect the policy ; the conduct of the mas- 
 ter was barratrous, for which insurers were 
 liable, and the loss was therefore within the 
 policy. Moss v. Byrom, 6 Term, 379. 
 
 25. The master was part owner. He fraud- 
 ulently sold ship and cargo, and fraudulently 
 applied the proceeds to his own use. Held, 
 though the act was done by the master who 
 was part owner of the ship, that did not 
 make it the less a fraud ; for, if the master, 
 who is part owner, commits barratry, that is 
 
 100 
 
 fraud on the other part owners. If he were 
 the sole owner, bis act would not be barratry. 
 JoTiei «. Nicholton, 10 Exchr., 28; 33 L. J. Ex., 
 330. 
 
 26. £800 on ship for a term, in the name 
 of 8., a part owner and master, valued at 
 £1,200. ''As well in his own name as in 
 the name of every other person to whom 
 the same doth, may or shall appertain, in- 
 cluding loss caused by the barratry of the 
 master." S. owned ff and the pursuer owned 
 fi of the vessel. Defenders answered that 
 the loss was caused by the criminal act of 
 S., the master and part owner. Hdd, by the 
 law of Scotland, the pursuer could maintain 
 the action for her proportion, of the loss. Part 
 owners are not copartners. This case was re- 
 ferred to Sir Wm. Follett, who gave three 
 different opinions on it. The judgment is 
 founded upon his last opinion. CricMon i. 
 Martin, 11 Scot. Jur., 603; s. c, Strong v. 
 Martin, 1 C. C. 8., 1345. 
 
 TV. "What is not. 
 
 1. The master fraudulently broke up the 
 voyage and sold the cargo, which was con- 
 ceded to be barratrous if he was in a situation 
 to commit that offense. He was the general 
 owner of ship, but had let her to the insured 
 on freight for the voyage, who loaded her with 
 their own goods. He had possession and 
 command of the ship. Held, the charter par- 
 ty .was a mere affreightment sounding in 
 covenant; 4he freighter was not clothed with 
 the character or legal responsibility of owner- 
 ship, and consequently the master was incapa- 
 ble of committing barratry. Mareardierv. 
 Oheiaptake Ins. Co., 8 Cranch, 39; s. c, 1 
 Wheat., 228 n. 
 
 2. At and from New York to Port au 
 Prince, thence back to New York. She was 
 chartered to Gillespie forthe voyage and on her 
 arriyal at Port au Prince, with the knowledge 
 and acquiescence of the master, she was 
 stripped by Gillespie of her sails and a consid- 
 erable part of her rigging. On lier return voy- 
 age she was sunk by him ; but whether it was 
 done with the knowledge of the master did 
 not appear. Held, admitting the act at Port 
 au Prince to be barratry, the insured could 
 not recover unless it produced the loss. 
 iSwan V. Union Ina. Co., 8 Wheat., 168. 
 
201 
 
 BARRATRY. 
 
 202 
 
 What is not. 
 
 3. Ship was captured by the British on the 
 ground that war had been, or soon would be 
 declared between G. B. and the U. S. The 
 whole of the crew except master, mate, and a 
 boy were taken out and she was ordered to Hal- 
 ifax. An attempt to rescue her before she 
 reached Halifax was made, and after a hard 
 contest, the eflfort was relinquished. She was 
 libeled and condemned at Halifax as lawful 
 prize of war. An abandonment was made. 
 The insured declared for a loss by barratry. 
 Held, to make the act of the master barrati-ous 
 it must be fraudulent, and to the injury of the 
 owners; fraudulent means a criminal viola- 
 tion of the duty he owes to the'Owners ; it was 
 not necessary that the act should be for the 
 master's interest, but if it be to his interest, 
 that is evidence of fraud. If the question 
 turned on the fraud, it is necessary to look at 
 the motives and intentions which influenced 
 the act; if his motives were to benefit the 
 owner, it was not fraud, and therefore was not 
 barratrous, «. g., a willful deviation for the ben- 
 efit of the owner is not barratry; but if it is 
 done to benefit the master it is (citing Phyn 
 ■B. Royal Exchange Ass. Co., 7 Term, 505). 
 It does not follow that every illegal act is a 
 criminal one, e. g., an ignorant breach of 
 blockade or an ignorant violation of a foreign 
 ordinance, though illegal, are not criminal. 
 The illegal act may be prima facie evidence 
 of fraud, yet it may be rebutted by evidence. 
 Bederer v. Delaware Ins. Co.j 2 Wash. C. C, 61. 
 
 4. If the owner of ship is informed that the 
 master is pursuing a voyage other than that 
 insured and makes no objection to it, and the 
 master ultimately runs away with the ship, 
 sells her, and embezzles the money, that is not 
 barratry. Thurston v. GolvmMan Ing. Go., 3 
 Caines, 89 h. 
 
 5. The owner let the ship by charter party 
 to the master for a period of four months. He 
 covenanted to victual and man her at his own 
 cost. The insured shipped goods by her for 
 St. Thomas, but the master took them to Porto 
 Rico and sold them. Held, the master was 
 pro hae 'Dice owner and his conduct did not 
 amount to barratry; that the rule applies as 
 well to the innocent owner of cargo as to the 
 ship owner. Eallet v. Columbian Ins. Go., 8 
 Johns., 272. 
 
 6. Plundering British vessels of their car- 
 goes instead of sending them into port for ad- 
 judication, it appeai-ing that the master was 
 
 authorized to do so by the owners, is not bar- 
 rati-y. Ward v. Wood, 13 Mass., 539. 
 
 7. On steamboat including risk of barratry. 
 Owner was master. He assigned the policy 
 to R. Master took a barrel of turpentine, 
 placed it in front of the furnace, and used it 
 for the purpose of increasing steam, that he 
 might race her against another boat Held, 
 not barratry, for that can never occur when the 
 act is consented to by the owner. Gitizens 
 Ins. Go. ■». Marsh, 41 Penn. St., 380. 
 
 8. On steamboat against fire only. Stip- 
 ulated: "Not liable for losses caused by 
 barratry." A fire resulted from collision with 
 another steamboat, alleged to have been 
 caused by the willful misconduct of the pilot. 
 Held, the onus was upon insurer to make out 
 the defense of barratry. Mere error on the 
 part of the pilot was not barratry. Barratry 
 consists of some fraudulent act intended to in- 
 jure the owners or of a willful violation of 
 known positive law in the navigation or man- 
 agement of the vessel. Germania Ins. Go. v. 
 Sherlock, 25 Ohio St, 33. 
 
 9. The crew deserted the vessel. Seld, not 
 barratry. Messonier v. Union Ins. Co., 1 N. 
 & McC, 155. 
 
 10. Insurer assumed the risk of barratry. 
 Held, a loss attributed to the master's failure 
 to repair the boat or re-ship the cargo, was 
 not barratry. Stewart v. Tennessee Marine and 
 Fire Ins. Go., 1 Humph., 243. 
 
 11. After the vessel had left Quebec with 
 her home cargo on . board, she sprung a leak 
 and put into Gaspie; but before a survey was 
 made the master with crowbars broke up her 
 ceiling and end bows to procure her con- 
 demnation. Held, it was not barratry. Todd 
 V. Ritchie, 1 Starkie, 190. 
 
 12. The charterer sent smuggled goods on 
 board, for which ship was seized and con- 
 demned. Held, the acts of the charterer 
 were the acts of the owner ; that it was not a 
 case of barratry but a loss caused by the own- 
 er. Hobbs v.Hannam, 3 Camp.j.93. 
 
 1 3. Ship was condemned for violating the 
 blockade imposed by Swed,en upon Norway. 
 The policy was from Jutland to Leith. Tlie 
 master swore she was bound for Leith, but she 
 had been driven by a current nearer to the 
 coast of Norway than he intended to have 
 gone, and that he did not intend to go into 
 any port of Norway; that when he was taken, 
 he was steering direct for Leith. Held, the 
 
 101 
 
203 
 
 BELLIGERENT — BEQUESTS. 
 
 204 
 
 What passea. 
 
 evidence was insufficient to establislj a loss by 
 barratry. Everth v. Hannam, 6 Taunt., 375 ; 2 
 Marsh., 72. 
 
 14. On goods. The master, by direction 
 of the owners of the ship, deviated ; and in- 
 sured claimed that his conduct was barratrous 
 as against them. Held, not barratry, notwith- 
 standing the owner might be liable for the 
 misbehavior of the master. Nutt v. Bourdieu, 
 1 Term, 323. 
 
 15. There is no barratry unless the conduct 
 of the master and mariners partake of a 
 fraudulent pui-pose. Phyn v. Boyal Ex. Asa. 
 Co., 7 Term, 505. 
 
 16. From Falmouth to Marseilles; but be- 
 fore she sailed was advertised to take goods 
 for Genoa, Leghorn and Naples. The plaint- 
 iff's agent was told that she was to go to those 
 ports first, and then come back to Marseilles; 
 but he insisted that she was bound to go di- 
 rectly to Marseilles, for that was the bargain ; 
 that he would not alter his insurance. She 
 passed Marseilles, delivered her cai-go at the 
 other ports, and on return for Marseilles was 
 lost. Held, this was not barratry, because the 
 master was acting consistent with his duty to 
 the owners. Stamma v. Brown, 2 Strange, 1173. 
 
 BELLIGERENT. 
 
 See Caftube and Seizube; Citizens; Ili.ioit 
 
 TBASE; NEDTBAI.ITr AND I^ATIONAL CHARACTER; 
 
 Sentehoe or Condemnation.) 
 
 BEQUESTS. 
 
 L What PASSES. 
 
 II. DOES NOT PASS. 
 
 I. What passes. 
 
 1. The wife's life was insured for the bene- 
 fit of the husband, and the policy provided 
 that if she survived him, the money should be 
 paid to their children. She survived, but they 
 had no children; and by his will he be- 
 queathed to her all the residue of his estate, 
 both real and personal, without restraint abso- 
 lutely. Seld, the testator's interest in the 
 102 
 
 policy passed to the wife in her lifetime by 
 the residuary clause of the will, and after her 
 death to her representatives; that the will 
 operated upon the interest of the testator, and 
 upon the death of the widow, the insurance 
 money became payable to the executors of 
 the testator as assets of the estate. Keller v. 
 Gaylor, 40 Conn., 343. 
 
 2. The testator procured a policy on his 
 own life for the benefit of himself, to be paid 
 to his personal representatives; and he be- 
 queathed to his wife all his " Stock in trade, 
 and any money that I may die possessed of, 
 or which may be due and owing to me at the 
 time of my decease." Seld, the money re- 
 ceivable under the policy passed to the wife. 
 Petty V. WUUon, 4 L.'R. Ch., 574; 17 W. R., 
 778. 
 
 3. On the life of A., payable to his execu- 
 tors, administrators and assigns. He made a 
 valid nuncupative will, by which he be- 
 queathed his personalty and the proceeds of 
 the policy to- his widow, having previously 
 transferred a part of the policy to secure cer- 
 tain debts. Held, the widow was entitled to 
 the proceeds, minus the amount assigned 
 Tenn. WilUa-ms v. Oor»on, 5 Ins. L. J., 313. 
 
 4. The testator charged his real estate with 
 an annuity to his widow, devised the realty in 
 fee to A., and appointed her his executrix. At 
 the death of the testator, there was a policy of 
 insurance upon the house, which was renewed 
 by A., and shortly after, the house burned. 
 The testator had no other real estate but that 
 upon which the house stood. Held, the re- 
 newal must be considered as made by A. in 
 her character as executrix; the proceeds of 
 the policy could not be considered as part of 
 the testator's general personal estate, but were 
 subject to the trust, for the benefit of the par- 
 ties interested in the realty, for they were 
 substituted for the property charged. Parry 
 ■0. Ashley, 3 Sim., 97. 
 
 5. The testator bequeathed a house and £300 
 lawful money to his daughter, and the re- 
 mainder of all his moneys, in whatever it may 
 be, in bonds, consols, or anything else, to his 
 wife. Seld, the bequest to his wife included 
 a policy upon the testator's life. Stooke v. 
 Stooke, 35 Beav., 396. 
 
 6. Policies of insurance were eflfected as se- 
 curity for an annuity. Either party had the 
 right to determine the annuity. The grantee 
 bequeathed, among other things, "All out- 
 
205 
 
 BILLS — BILLS OP EXCEPTIONS. 
 
 206. 
 
 Miscellaneous. 
 
 standing debts owing." Held, tlie will was 
 sufficient to include general policies of insur- 
 ance, and that they would pass under the 
 words debentures or debts." Phillips «. JEast- 
 wood, L. & G., temp. Sugden, 370. 
 
 II. What dobs not pass. 
 
 1. The grantee of an annuity effected an 
 insurance in the name of a trustee, upon the 
 Jife of the grantor. The testatrix, being en- 
 titled to the annuity and policy, bequeathed 
 as follows : " I give likewise to the said Wil- 
 hemena, Madame T.'s annuity and the sum of 
 £1,000." The testatrix died in 1848, and 
 Madame T. in 1849, and the trustee received 
 £978 in respect of the policy. Held, the policy 
 did not pass under the words of the bequest. 
 Hamilton v. Baldwin, 15 Beav., 332. 
 
 2. M. E. granted a redeemable annuity to S. 
 during his own life. S. effected an insurance 
 on the life of M. E., but S. was a mere trustee 
 for Susannah, and he executed a declaration 
 of trust accordingly. Susannah being en- 
 titled to half the annuity and the policy be- 
 queathed her moiety "£500 now secured on 
 the estate of Marsham Elwin, and by a policy 
 of insurance on his life in the Equitable." 
 Held, the bonuses which had been added to 
 the policy did not pass under this bequest. 
 Simpson v. Mountain, 4 L. J. (N. S.) Ch., 221. 
 
 BILLS. 
 
 (See Fbouibsobt Ncnxs.) 
 
 BILL OF EXCEPTIONS. 
 
 ' 1. A certain instruction given was assigned 
 as error; but the bill of exceptions did not 
 show that evidence had not been given suflB- 
 cient to warrant the submission of the ques- 
 tion. Held, the error assigned was not sup- 
 ported. Insurance Oo. v. Piaggo, 16 Wall., 378. 
 2. Nothing appeared in the record, except 
 the pleadings, the verdict and judgment, and 
 three bills of exceptions taken to the rulings 
 
 of the court, for refiising to give certain in- 
 structions ; none of the evidence was in the 
 bill of exceptions, nor any certificate as ti> 
 what the evidence tended to prove. Held, no 
 error could be supported upon the instruc- 
 tions refused. Insurance Co. v. Baring, 20 
 Wall., 159. 
 
 3. There was nothing in the record to show 
 what was excepted to, but at the end of the 
 bill of exceptions immediately preceding the 
 signature of the judge, these words were writ- 
 ten, " exceptions allowed." Held, if they 
 amounted to anything, they covered the whole 
 record ; that the exceptions should have pre- 
 sented specifically and distinctly the ruling 
 objected to, and failing to do so, the judgment 
 would be aflSrmed. " liisUratice Co. e. Sea, 21 
 Wall., 158. 
 
 4. Exceptions to be relied on must be taken 
 and notified at the trial ; if not then taken they 
 cannot be settled correctly from recollection, 
 or by the observations and oaths of bystand-. 
 ers; but when taken at the trial, the court 
 will allow them to be reduced to form after- 
 wards. Nicoll «. American Ins. Co., 3 W. &M., 
 529. 
 
 5. The court charged the jury: "If the 
 condition of the deceased at the time of his 
 death was such that he could not distinguish 
 right from wrong, and did not know that he 
 was doing an act which would produce death, 
 then he was an involuntary agent, and the re- 
 sult of an involuntary act, which produced 
 death, was accidental death. Held, no excej)^ 
 tion hkving been taken to the charge, the 
 court would not review it. Malhry v. Trav- 
 elers Ins. Co., 47 N. Y., 52. 
 
 6. The affidavits to support a motion to re- 
 move a cause from the state to the federal 
 court must be preserved in the bill of excep- 
 tions; if that is not done, this court cannot re- 
 view the action of the court below. HaHford 
 Fire Ins. Oo. v. Vandusor, 49 111., 489. 
 
 7. The petition and afBdavit for an order to 
 remove the cause from the state to the federal 
 court must be inserted in the bill of excep- 
 tions, or the supreme court will refuse to no- 
 tice any error founded upon the refusal of the 
 court to transfer. Home Ins. Oo. ■». Heck, 65 
 111., 111. 
 
 8. Afladavits in support of a motion are not 
 part of the record, unless made so by bill of 
 exceptions, nor will the court regard them as 
 a part of the record, though the clerk has cop- 
 
 103 
 
207 
 
 BILLS OF LADING— BLOCKADE. 
 
 208 
 
 What is a breach of. 
 
 ied them into it ; nor will the court regard a 
 paper professing to be a bill of exceptions, 
 unless the record shows that the judge signed 
 it (citing Taylor v. Fletcher, 15 Ind., 80 ; In- 
 dianapolis R. R. Co. V. Wyatt, 16 id., 204; 
 Round «. The State, 14 id., 493 ; Thompson ®. 
 White, 18 id., 373 ; Whiteside v. Adams, 26 
 id., 250; Haddon «. Haddon, 43id., 378; Kes- 
 ler V. Myers, 41 id., 543). Aurora Fire Ins. Co. 
 «. Johnson, 46 Ind., 315. 
 
 9. A motion to strike out pleading does not 
 become a part of the record unless preserved 
 by bill of exceptions. National Banking and 
 Insurance Go. v. Knaup, 55 Mo., 154. 
 
 BILLS OF LADING. 
 
 1. A bill of lading which states the proper- 
 ty to belong to R. and another does not pre- 
 vent R. from showing that he was the only 
 person interested in the goods. Maryland 
 Ins. Co. ■». Budai, 6 Ci"anch, 338. 
 
 2. The bill of lading contained these words: 
 " Contents unknown." Held, it was not evi- 
 dence of any property in the consignees. 
 Haddow v. Parry, 3 Taunt., 303. 
 
 3. The bill- of lading was tendered in evi- 
 dence as proof that the goods were shipped. 
 Held, inadmissible, because it was only the 
 declaration of the master. Dickson v. Ledge, 
 1 Stark., 180. 
 
 BILL OF PAETICULAKS. 
 
 The defendant pleaded that certain ques- 
 tions and answers propounded by the defend- 
 ant to the deceased were the basis of the con- 
 tract among which was, "Whether the de- 
 ceased ever had been afflicted with, or had 
 any symptoms of any complaint," to which 
 the answer was, "Never;" that the answer 
 was untrue in this, that he had symptoms of 
 disease of the stomach. Held, the defendant 
 must deliver to the plaintiff particulars of the 
 symptoms of the disease of the stomach. 
 Marsliall v. Emperor Life Ass. Sac., 6 B. & S., 
 886; s. c, 1 L. R. Q. B.,35; 12 Jur. (N. S.), 
 293; 35 L. J. Q. B., 89; 13 L. T. (N. S.), 281. 
 104. 
 
 BLOCKADE. 
 
 (See Captdbe and Seizdbe; Ituoir Toadk; Njeit- 
 TBAI.ITY AXD Natiohai. Chasactkb; Ssntemce or 
 
 CONDEHNATION.) 
 
 I. What is a breach of. 
 
 II. NOT A BBBACH OF. 
 
 I. What is a breach or. 
 
 1. If the insurer is to take no risk arising 
 from blockade, he must be discharged from 
 every risk that arises in consequence of it; 
 and whether the belligerent was strictly jusli- 
 fiable in condemning the property for viola- 
 tion of blockade is immaterial. The disper- 
 sion of a blockading fleet by storm does not 
 suspend the blockade, provided the fleet uses 
 due diligence to resume its station. Raddiffe 
 D. United Ins. Co., 1 Johns., 38. But if a 
 storm drives a neutral, in spite of himself, 
 within the confines of a blockaded port, he is 
 excusable, and is not subject to forfeiture. Ibid. 
 
 2. Stipulated : " Insurers take no risk of 
 blockaded ports." Held, admitting the cap- 
 ture and condemnation to have been illegal, 
 from the want of due pi-oof of notice, yet if 
 the loss arose by reason of the port of desti- 
 nation being blockaded, it falls within the 
 exception. Radeliffe «. United Ins. Co., 9 
 Johns., 277. 
 
 3. The order for insurance stated: "She 
 will sail under Spanish colors." She was pro- 
 vided with them as well as with Spanish 
 papers, to deceive the cruisers of Great Brit- 
 
 jiJD, with whom the United States were at war. 
 She was bpnnd for St. Bartholomew, from 
 New Haven; was examined by Commodore 
 Oliver, to whom the master denied hearing of 
 the blockade until he had taken in his whole 
 cai'go. A British privateer captured her, and 
 she was condemned for breach of blockade. 
 Held, if the goods were purchased and depos- 
 ited in warehouse before notice of the block- 
 ade, that conferred no riglit to ship them. The 
 rule is this: The cargo on board the ship or 
 in lighters for the ship, for the purpose of 
 being conveyed to her, may be exported, 
 but notliing else. Olddeu «. MeChemey, 5 S. 
 & R, 71. 
 
 4. Ship sailed from Liverpool February 
 18th, for Buenos Ayres, but put into Lockin- 
 dale in distress on the 20th. The master went 
 
209 
 
 BOTTOMRY AND RESPONDENTIA. 
 
 210 
 
 When bottomry does not affect msurer of ship. 
 
 overland to Greenock, for a carpenter and 
 some men, being absent four or five days. 
 Two or three days after his return, she sailed 
 for the port of destination, which was block- 
 aded, notice of which was published in the 
 London Gazette, February 18th. Seld, wheth- 
 er the master had notice of the blockade ought 
 to have been submitted to tlie jury. Rhodes «. 
 Hunter, 2 Hud. & B., 581. 
 
 11. "What is not a beeach of. 
 
 1. A vessel may sail for a blockaded port 
 known to be blockaded, until she is warned 
 off by the blockading squadron, and is not 
 bound to inquire elsewhere than of the block- 
 ading force. " Warranted neutral, proof of 
 which to be made in the United States only, 
 from Baltimore to LaGuira, with liberty of 
 one other neighboring port, and at and from 
 them or either of them to Baltimore." Cura- 
 coa had been blockaded, of which notice had 
 been given to the United States, before she 
 sailed. She arrived atLaUuira, sailed, and 
 was captured about thirty miles from Amster- 
 dam in Curacoa. It seems the master omitted 
 to inquire at LaGuira or Bonaire, respecting 
 the blockade of Amsterdam ; but he intended, 
 in case he should Und Amsterdam blockaded, 
 to sail for some other port. Held, the omis- 
 sion to inquire at LaGuira did not discharge 
 the insurer; nor was the intention to sail for 
 another port, if Amsterdam were blockaded, 
 to be deemed a deviation, for she had the 
 right to go to Amsterdam. Maryland Ins. 
 Co. o. Woods, 6 Cranch, 39. 
 
 2. Ship and cargo insured against seizure 
 and condemnation, sailed for a port under- 
 stood to be blockaded, taken while the inten- 
 tion to break the blockade existed, and con- 
 demned as lawful prize. Held, the insurers 
 were liable. Vos v. United Ins. Co., 1 Gaines 
 Gas., 7. 
 
 3. A neutral is entitled to enter, unless there 
 is an actual existing blockade. There must be 
 a blockade de facto; nor is he bound to see 
 whether the blockading sqnadron still retains 
 the animus retertendi; nor is notice given by 
 a British frigate or ship of the line, several 
 leagues from the port and several days before 
 entry, of any consequence. Williams v. Smith, 
 2 Gaines, 13. 
 
 4. Sailing for a port blockaded is no con- 
 travention of the law of nations, for she may 
 
 sail for the purpose of ascertaining whether 
 the blockade is continued. Naylor «. Taylor, 
 9B. &C., 718; 4 M. & R., 526. 
 
 5. Ship sailed for a port blockaded and was 
 captured. Hdd, the question for the jury to 
 determine was, whether, when she came in 
 sight of the blockading squadron, the master 
 ought to have ascertained if it were such or 
 not, and ought not to have pursued her voyage 
 without gaining that information. If a pru- 
 dent man would not have inquired whether 
 that were the blockading squadron, then the 
 insurer was liable. Naylor v. Taylor, 1 H. & 
 M., 205. 
 
 6. At and from Liverpool to Buenos Ayres. 
 She sailed on the voyage February 4th, but 
 put in to Lochendale for repairs, and sailed 
 thence March 12th. The port of destination 
 was blockaded and notice thereof published 
 February 18th. Tliis policy was made on the 
 22d, following. Held, the voyage was not il- 
 legal ; for she sailed before notice of the block- 
 ade was published; and whether the master 
 had actual notice of it when she sailed from 
 Lochendale was a question of fact fur the 
 jury, and they having found that he had not 
 such notice, the insurers were liable for the 
 loss. Harratt v. Wise, 4 M. «& R, 521 ; 9 B. & 
 G.,713; 7 L. J. K. B., 309. 
 
 BOTTOMRY AND RESPONDENTIA. 
 
 1. Most be insured eo nomine. — Ship 
 owned by a British subject, bottomried by the 
 master, the lender made insurance without 
 disclosing that the interest insured was 
 founded upon.^ bottomry bond. Held, it was 
 a special interest, and the policy lieing in gen- 
 eral terms did not cover it. Sobertson v. 
 United Ins. Co., 2 Johns. C., 251.. And the fact 
 that the bond contained the words "grants, 
 bargains and sells," did not make the trans- 
 action a sale, because the master, in his ca- 
 pacity as such, could not do more than 
 pledge her. Ibid. 
 
 2. When bottomry does not affect insurer 
 of ship. — Master made a bottomry bond, to 
 secure money required to pay for repairs to 
 the ship to enable her to return to the home 
 port. Held, the insurers of ship were not lia- 
 ble to pay the bottomry bond ; that the limit 
 
 105 
 
211 
 
 BONUS — BROKER. 
 
 212 
 
 Miscellaneous. 
 
 of their liability was the amount of repairs. 
 Beed v. Commercial Ins. Co., 3 Johns., 336. 
 
 3. WTiat the bond must state. — The con- 
 tract of bottomry must be in writing, specify 
 the sum lent with the stipulated marine inter- 
 est, and the voyage proposed, with the dura- 
 tion of the risk, which the lender is to run. 
 Jennings v. Tiisurance Co. of Pennsylvania, 4 
 Binu., 344. And see certain papers in this 
 case which do not constitute a contract of bot- 
 tomry. 
 
 4. When not insurable at all. — The 
 plaintiff's interest was founded on a bottomry 
 bond, given to him and one Hilton jointly. 
 The statute, 6 George I, ch. 18, sec. 12, pro- 
 hibited the lending of money by two jointly 
 on bottomry, as well as joint insurances by 
 two. Held, an insurance made upon such an 
 interest was void, although the lenders were 
 general partners in trade. Everth «. Black- 
 burn, 2 Starkie, 58; 6 Mau. & Sel., 152. 
 
 5. Who may make the bond. — The master 
 and some of the crew, with all the ship's pa- 
 pers, were carried off by the enemy. Held, 
 the mate had the right to hypothecate the ship 
 or sell a part of the cargo for the purpose of 
 raising money to pay salvage. Parmeter v. 
 Todhunter, 1 Camp., 541. 
 
 6. What is a good description. — The mas- 
 ter bound himself and the vessel for the re- 
 payment of a sum of money borrowed to re- 
 pair her in a foreign port, with twelve per 
 cent, bottomry premium, eight days after my 
 arrival in Loudon. Lender made insurance 
 "on bottomry," and It was so described in the 
 policy. Held, " after his arrival " must be 
 construed " after his arrival with the ship in 
 the port of London " ; that it did not mean 
 whether she do or do not arrive in London; 
 therefore the Interest insured was well des- 
 cribed (reversing s. c, 7 L. J. 0. P., 239 ; 3 M. 
 & P., 385 ; 6 Bing., 114). Bimonds v. Hodgson, 
 1 L. J. (N. S.), K. B., 51 ; 3 B. & Ad., 50. 
 
 7. There mnst be total destruction of the 
 thing. — On bottomry. She was very badly 
 damaged at sea, and narrowly escaped found- 
 ering, but was carried into Falmouth by a 
 King's ship. It would have cost £3,200 to re- 
 pair her; after which her value would not 
 have exceeded £2,000. Held, the question was 
 not whether, had the policy been on the ship, 
 the insured could have recovered for a total 
 loss. An insurance on bottomry gave no right 
 to the insured to recover, if the ship continued 
 
 106 
 
 to exist as a ship; nothing short of a total 
 destruction of her as a ship would make in- 
 surer liable. Thompson v. Royal Ex. Ass. Co., 
 1 Mau. & Sel., 30. 
 
 8. Action. — On a bottomry bond condition- 
 ed inter alia, " or in case of the loss of the said 
 ship or vessel, such an average as by custom 
 shall have become due on the salvage, or if on 
 the said voyage the said ship or vessel shall 
 be utterly lost, cast away, or destroyed." 
 There was a constructive total loss, and the 
 proceeds of the ship by decree in admiralty, 
 in favor of the bondholder, "were paid into 
 court. They were insufficient to satisfy the 
 bond. In an action by the bondholder against 
 insurers : Held, a constructive total loss was 
 not a loss of the bond ; that nothing but an 
 absolute total loss will discharge a bottomry 
 bond, hence the insured could not recover. 
 Broomfield v. Southern Ins. Co., 5 L. R. Ex., 
 192; 39 L. J. Ex., 186; 22 L. T. (N. 8.), 371; 18 
 W. R., 810. 
 
 BONUS. 
 
 (See BEQUBST8.) 
 
 W. insured his life in 1812, and the policy 
 lapsed for nonpayment of premium in 1816. 
 In 1817, the company issued to him another 
 policy for the same amount, and at the same 
 rate of premium as the first, upon which pre- 
 miums were paid until his death, in 1854. 
 This bill was brought to compel the company 
 to make good all bonuses falling due from 
 1812 to 1817. Held, there was a total absence 
 of proof to support the plaintiff's case. Win- 
 diis B. Tredegaa; 15 L. T. (N. S.), 108. 
 
 BOOKS AND BOOKS OF ACCOUNTS. 
 
 (See EviDENOB and Proof o» Loss.) 
 
 BROKER. 
 
 (See Fbihcipai. akd AesHT.) 
 
 I. His lien. 
 II. His liabilitt. 
 III. Broeebage. 
 
213 
 
 BROKER. 
 
 214 
 
 His lien. 
 
 I. His lien. 
 
 1. An insurance broker is entitled to a lien 
 npon the policy for the premium paid by him 
 for his principal, and though he parts with the 
 possession, the lien revives when the policy 
 comes again into his hands, unless the man- 
 ner of surrendering possession manifests an 
 intention of abandoning the lien ; but in the 
 case of other liens upon the policy, if it is as- 
 signed bona fide for a valuable consideration 
 while out of possession of the person who ac- 
 quired the lien, it does not revive after its re- 
 turn. Spring v. South Carolina Ttis. Co., 8 
 Wheat. 268. 
 
 S. A broker who receives premiums and 
 pays losses has a lien on the policies and 
 abandonments in his hands, for a general bal- 
 ance due him by the insurer. Moody v. Web- 
 tter, 3 Pick., 424. And where the insurer 
 became bankrupt, and the broker did not pre- 
 sent his claim under the commission, but 
 retained the policies and abandonments, and 
 remuneration was afterwards awarded and 
 paid under the treaty with Spain of February, 
 1819. Held, the broker had a lien on that 
 money. Ibid. 
 
 3. A. employed B. to effect policies of in- 
 surance; B., unknown to A., employed C, 
 who applied to defendant, an insurance broker, 
 for insurance, who had no reason to suppose 
 that C. was not the principal; the broker 
 effected policies in his own name as agent; 
 but C. was indebted to the insurance broker 
 for a balance in account, who refused to de- 
 liver the policies until paid the balance. Held, 
 the broker had a lien upon the policies for C.'s 
 debt Westwood v. BeU, Holt N. P., 122. 
 
 4. W. & L. directed the defendants to pro- 
 cure a policy on the cargo, without mention- 
 ing to whom it belonged, and W. & L. were 
 debited by the defendant with the premiums. 
 They received £680 from the insurers, and 
 were creditors of W. & L. to the amount of 
 £lffj. Held, in the absence of notice that the 
 policy was not for W. & L., the defendants 
 had a lien npon it for their general balance. 
 Mann v. Forretter, 4 Camp., 60. 
 
 5. £6,000 was borrowed in the name of B. 
 to build certain ships, to be repaid £1,000 per 
 annum. By deed, the interest of B. to the ex- 
 tent of three-fourths the shares in the ships 
 was assigned to M. & W. in trust as security 
 for the loan. B. covenanted to keep them in- 
 
 sured from perils of the seas, war, fire or oth- 
 erwise, and to assign the policies to M. & W. 
 M. <fc W. were to hold any money whicli 
 might arise from any sale or any contract of 
 insurance and were to repay the loan out of it 
 as far as it would go, and any surplus was to 
 be paid to B. A., the broker, who had notice 
 of the assignment, procured the ships to be 
 insured for B. He was told by B. that the 
 trustees had effected insurance in respect of 
 their trust. B. was indebted to the broker for 
 premiums on all the policies and £100 cash 
 advanced. One ship, insured for £1,000, was 
 lost, and the broker claimed the right to retain 
 his general balance from the moneys recovered 
 for her loss. Held, he was not entitled to a 
 lien upon the policy for the whole balance 
 due him, but that he was entitled to a lien 
 upon each policy for the money paid by him 
 in respect of each premium. Ladbroke v. Lee, 
 4 DeG. & S., 106. 
 
 6. M. employed L. & I. to get insurance made 
 for him. The policy was made in their names. 
 A loss occurred, and the underwriter gave his 
 acceptance in favor of L. & I. for their claim, 
 but transmitted it to M., the policy having 
 been delivered to him. L. & I. indorsed the 
 acceptance to IS.. Held, L. & I. had a lien on 
 the policy for the balance due them by M. 
 Leslie v. Linn, Faculty Dec, 1781 to 1787, p. 173. 
 
 7. B. effected certain policies through D. & 
 Co. It was alleged that D. & Co. knew that 
 B. was acting as an agent merely. Meld, D. 
 & Co. had a lien upon the policies for the pre- 
 miums; but as to premiums due upon other 
 policies, they had no lien. Losh v. Douglass, 
 20 C. C. S., 58. 
 
 8. A. purchased a cargo of wheat for his 
 principal, shipped it, drew for the money, and 
 employed B., a broker to insure it B. retained 
 the policy. The principal became bankrupt 
 and his estate was sequestrated before the dratl 
 became due. Held, the possession of the 
 broker was the possession of the factor A., who 
 was entitled to a lien on the policy for a spe- 
 cial and general balance due by the principal 
 to A. Oairdner v. Milne, 20 C. C. S., 565. 
 
 9. Policy in the name of R. D. for the bene- 
 fit of J. M. The broker who effected it re- 
 tained it, and J. M. became bankrupt He 
 was indeted to R. D. upon a general balance. 
 Held, R. D. had a lien upon the policy for his 
 general balance. Wilmot o. Wilson, 3 C. C. S, 
 815; 13 Scot Jur., 337. 
 
 107 
 
215 
 
 BUILDINGS — CAPTAIN. 
 
 216 
 
 Miscellaneous. 
 
 II. His liability. 
 
 1. The brokers omitted to disclose the con- 
 tents of certain letters which were material, 
 and the insurers defended successfully against 
 the actions brought by Insured. Held, insured 
 could recover against the brokers. Maydem v. 
 Forregter, 5 Taunt., 615. 
 
 2. The plaintiff sued defendant for a failure 
 to effect an insurance in pursuance of his re- 
 tainer. Defendant had contracted with an in- 
 surance company for the insurance, and ob- 
 tained what purported to be a copy of the 
 policy. A stamped policy was afterward sub- 
 scribed, but not delivered. The company's 
 practice was to retain the policies until they 
 were wanted. A demand was made by the 
 plaintiff^ after the loss, for the policy, to which 
 the defendant gave an evasive answer. Held, 
 it was for the jury to say whether the broker 
 had procured the policy to be executed within 
 a reasonable time. Twrpin v. Bilton, 5 H. & 
 G., 455; Scott, N. B., 447; 7 Jur., 950; 12 L. 
 J. C. P., 167. 
 
 3. Certain persons effected insurance for 
 the master on his effects. She deviated, and 
 he advised them of the fact, and said in his 
 letter: "Tou will, of course, make the neces- 
 sary insurance in consequence of this altera- 
 tion of the voyage." Ship and crew were lost. 
 Held, it was the duty of the defenders to 
 have had the insurance renewed as soon as 
 they were advised of the change. Petrieg «. 
 Atchison, 3 C. C. S., 511 ; 13 Scot. Jur., 226. 
 
 4. An insurance broker was employed to 
 procure £1,000 insurance on ship and cargo. 
 He informed his principal he could get 
 but£250— fl50byM. and£100byN. They 
 initiated the slip or application for those 
 sums. The broker sent a policy to each, but, 
 as N. wag out of town, his signature was not 
 affixed, and when it was tendered to him on 
 his return, he refused to execute it because the 
 vessel was reported lost. Held, the broker 
 was liable for the sum mentioned in that poli- 
 cy, for, the insurance having been effected, he 
 was bound to produce a policy to his employ- 
 er. OUbert «. Qailoviay, Faculty Dec, 181o4o 
 1812, p. 294. 
 
 III. Bkokeeage. 
 
 1. The essence of usage is uniformity; and 
 where it appeared that brokers' commissions 
 108 
 
 were not uniformly allowed : Held, brokerage 
 could not be claimed of insurers as a matter 
 of right, unless there was an Implied contract 
 between the parties. Levi d. Bar?ieg, Holt N. 
 P., 412. 
 
 2. The action was by insurance brokers to 
 recover premiums. The defendant claimed 
 that as to £12 8«. lOd., the plaintiff had not paid 
 it, for the insurer had allowed it to him as a 
 discount on the premium. Held, evidence 
 was admissible to show a custom in such 
 cases for the broker to have the benefit of the 
 discount. Bueker v. Imnt, 8 F. & F., 959. 
 
 3. The discount usually allowed by insur- 
 ance companies on punctual payment of the 
 premiums is, in the absence of an agreement 
 to the contrary, the property of the principal, 
 and does not belong to the broker. Queen of 
 Spain, V. Pa/rr, 39 L. J. Ch., 73. 
 
 BUILDINGS. 
 
 (See Adiacest Bitildikss; Altebatioitb aks Bi- 
 
 FAIBS.) 
 
 BURDEN OF PROOF. 
 
 (See OiruB Fbobahsl) 
 
 BURNING BY DESIGN. 
 
 (See Absos and Incensiabisk.) 
 
 CAMPHENE. 
 
 (See Keeping asd Stoeing FsoHiBrrED Aetiolib; 
 EEPnauAHT STrpni.ATioNs ; Use abd Ocoufatioii.) 
 
 CANCELLATION. 
 
 (See Bescibsioh.) 
 
 CAPTAIN. 
 
 (See Mabteb op Ship.) 
 
21T 
 
 GAPTUEE AND SEIZURE. 
 
 218 
 
 What is loss by. 
 
 CAPTTJUE AND SEIZURE. 
 
 (See Assists, Kestbahtts and DxTAnmHTS ; 
 B1.0CKADS; iLucn Trade; Nbutbai.itt akd 37a- 
 TioNAi, Character; Ssktencs or Cohdexsation.) 
 
 I. What is ix)ss by. 
 
 II. KOT LOSS BT. 
 
 I. What is loss by. 
 
 1. Free from loss or expense by capture, 
 seizure or detention, or the consequences of 
 any attempt thereat. She was seized by the 
 ofScers and crew of the steamer Music, be- 
 longing to the Confederate States, two or three 
 miles inside the bar at the mouth of the 
 Mississippi, on her way to New Orleans. 
 Held, capture is to be deemed lawful when 
 made by a declared enemy, lawfully commis- 
 sioned, and according to the laws of war; 
 and in the case of a capture under a com- 
 mission from an organized' government, it is 
 not necessary that the commission should 
 issue from a perfectly lawful government; it 
 is snflScient if the government was one in fact: 
 that is, one exercising the supreme power of 
 the country over which its jurisdiction ex- 
 tended; while the eleven states, either sever- 
 ally or in coi;jiinction, had no authority for 
 these proceedings, still it could not be denied 
 that, by the use of unlawful and unconstitu- 
 tional means, a government in fact was erected 
 with sufficient resources of men and money 
 to carry on a war of unexampled dimensions, 
 exercising many belligerent rights conceded 
 or acquiesced in by the supreme government; 
 that it was in the possession of many of the 
 highest attributes of government, and was to 
 be regarded as the ruling or supreme power 
 of the country, hence captures under its com- 
 mission were among those excepted by the 
 warranty of the insured (citing Dole v. New 
 Eng. Mut. Ins. Ckj., 6 Allen, 373; Fifleld e. 
 Insurance Co., 47 Penn. St., 166; Dole v. Mer- 
 chant's Marine Ins. Co., 51 Me., 465). Mauran 
 V. Insurance Companieg, 6 Wall., 1. 
 
 2. On ship (warranted free from capture, 
 seizure or detention), against perils of the sea, 
 fire, enemies, pirates, assailing thieves, re- 
 straints and detainments. It was executed 
 before the revolt of the southern states. She 
 was taken by n confederate privateer and 
 burned. Held, it was not a loss by pirates or 
 
 assailing thieves; that it was a loss by capture 
 within the meaning of the law of insurance ; 
 therefore, insurers were not liable. Dole v. 
 New JSngland Mutual Marine Int. Co., 2 Cliff., 
 394. 
 
 3. " On goods, against the dangers of the seas 
 only, from New York to Bremen. In case of 
 capture or detention, the risk to continue dur- 
 ing or after capture or detention." The vessel 
 was stranded, the goods put into lighters, and 
 there seized by order of the government. 
 Held, the loss of the voyage was occasioned 
 by seizure, which prevented the cargo from 
 being sent to its destination in another vessel. 
 Si^iefelin v. New York Int. Co., 9 Johns., 33. 
 
 4. Ship was boarded by an armed launch, 
 and a prize master and a prize crew put on 
 board, about two leagues from land, and about 
 four leagues from the port of destination. She 
 was taken into Fort Passage, kept at quaran- 
 tine for eight days, when her hatches were 
 sealed by the French consul, and her super- 
 cargo and master were ordered to the port of 
 destination. A French crew were put on 
 board, who navigated her to Bayonne, at 
 which place the cargo was sequestered and 
 landed. The policy provided : " No risk in 
 port taken, but sea risk." Held, it was not a 
 seizure in port; that it was a loss by capture. 
 Duval e. Commercial Int. Co., 10 Johns., 378. 
 
 5. Policy excepted claim for loss " by the 
 British or Americans, the usual sea risk to 
 continue during capture." She was captured 
 and moored in a dangerous and exposed situ- 
 ation in the Bay of Gibraltar, and while in 
 that situation was greatly injured by collision. 
 Held, the loss was occasioned by capture, and 
 not within the policy. Coolidge v. Nea> York 
 Firement Int. Co., 14 Johns., 808. 
 
 6. The right of the insured to recover for a 
 total loss is not affected by the neglect of the 
 supercargo to put in a claim and defend the 
 capture. Ocean Int. Co. «. Prancit, 3 Wend., 64. 
 
 7. Against perils of the seas, men of war, 
 pirates, rovers, arrest, restraints, detainments, 
 etc. " Warranted free from loss or expense 
 arising from capture, seizure or detention, or 
 the consequences of any attempt thereat." She 
 was lying at Norfolk for repairs, was there 
 seized by a large body of men professing to 
 act by authority of the state of Virginia, filled 
 with stone, towed into the channel and sunk, 
 to prevent ingress or egress of vessels of war. 
 Hdd, a question of fact for the jury to deter- 
 
 109 
 
219 
 
 CAPTURE AND SEIZURE. 
 
 220 
 
 What is loss by. 
 
 mine, whether the seizure was an act of war 
 on the part of those engaged in hostilities 
 against the United States, or whether It was 
 the act of a mob merely. Smnnerton v. Colum- 
 hian Ins. Co., 37 N. T., 174 ; s. c, 9 Bos., 361. 
 8. On schooner, against absolute or techni- 
 cal total loss. " Warranted free from loss or 
 claim on account of capture, seizure, detention 
 or destruction by, or arising from, any belliger- 
 ent nation, or from any seceding or revolting 
 States of the Union, or from any guerrilla 
 party, or by or from any oflScer, civil or mili- 
 tary, or other persons claiming to act in their 
 name, or under their authority, or in their be- 
 half." The usual perils were assumed, includ- 
 ing loss by " pirates, rovers, assailing thieves, 
 barratry of the master and mariners, and all 
 other losses and perils, etc." She sailed from 
 New York for New Orleans and arrived. The 
 United States authorities told the master they 
 wanted his vessel to take a load of timber to 
 Santiago; that he should have what the Wash- 
 ington rates were. The quartermaster depart- 
 ment loaded her with timber. She sailed 
 May 27, 1865, and arrived June 3d, next. She 
 was discharged and towed alongside another 
 vessel; about 700 colored troops were trans- 
 ferred to her to be taken over the bar. She 
 proceeded across the bar, entered the harbor, 
 but struck. The anchor was let go; the mas- 
 ter remarked to the mate; "She's all right 
 and can be saved at daylight." One of the 
 army oflScers gave orders to pay out ten fath- 
 oms of chain ; the captain objected ; the officer 
 told him that unless he obeyed orders, they 
 would tie him and throw him overboard. 
 During all the time until she was lost the 
 master was not permitted to have any control. 
 Insured claimed of the government of the 
 United States payment for the vessel, and re- 
 ceived $16,000 or $17,000, very nearly her 
 whole value. Held, the forcible taking was 
 not within the exception, but that it ceased to 
 operate as a total loss; hence, there was 
 neither an absolute nor a technical total loss, 
 because the government of tlxe United States 
 had made good nearly the whole of it. Mur- 
 ray V. Harmony Fire and Marine Ins. Go., 58 
 Barb., 9. 
 
 9. The risks assumed were of " the sea, fire, 
 enemies, pirates, assailing thieves, restraints, 
 and detainments of all kings, princes, or peo- 
 ple, etc., barratry of the master (unless insured 
 . be owner of the vessel), and of the mariners, 
 JIO 
 
 and all other losses and misfortunes which 
 have or shall come, etc. Warranted free from 
 capture, seizure or detention, or the conse- 
 quences of any attempt thereat, any stipula- 
 tions in the policy to the contrary notwith- 
 standing." An armed steamer claiming to 
 act under the Confederate States displayed 
 the flag of the United States, deceiving the 
 officers of the ship. Semmes, a citizen of the 
 state of Maryland, which had not seceded, was 
 her commander. He with his crew boarded 
 the ship insured, after plundering her of some 
 sails, spars, provisions and other articles, 
 burned her. Held, not a loss by pirates, but 
 by capture, which was excepted from the risks 
 enumerated. Dole v. New England Mutual 
 Marine Ins. Co., 6 Allen, 373. 
 
 J (). On ship. " Loss by capture, seizure, or 
 detention, or the consequences of any attempt 
 thereat excepted." She was captured by a pri- 
 vateer in commission under the government of 
 the Confederate States. Held, a loss by capture. 
 Fifield o. Ins. Go. of Pennsyloania, 47 Penn. 
 St., 166. 
 
 11. "Against perils of the seas, enemies, 
 pirates, assailing thieves, restraints, detain- 
 ments of all princes, kings, or people, etc. 
 Warranted free from capture, seizure, or de- 
 tention, or the consequences of any attempt 
 thereat, any stipulation in this policy to the 
 contrary notwithstanding." She was taken 
 by a confederate cruiser. Held, if the words 
 capture or seizure embrace a taking by pirates, 
 and the taking was an act of piracy, then the 
 insurers were not liable. Held, also, the words 
 capture and seizure in their general significa. 
 tion were broad enough to embrace a taking by 
 pirates also ; though the taking was piratical, it 
 was also belligerent, for war in fact existed at 
 the time of the loss, and each of the hostile 
 forces represented a government de fado; that 
 though it was a civil war, the capture was not 
 less a capture for that reason. Dole ». Mer- 
 cliants Mutual Marine Ins. Go., 51 Me., 465. 
 
 1 2. Against capture only. She was driven 
 on the French coast, and there captured by the 
 enemy. . Held, a loss by capture, and not by 
 perils of the sea. Qreen v. BlmsUe, Peake's N. 
 P. C, 878. 
 
 13. She was captured; a peril insured 
 against Insured paid captors a sum of 
 money to compromise the matter. Hdd, if 
 the compromise was bona fide, insurers were 
 liable for it. B&rens v. Sucker, 1 W. Bl., 313. 
 
221 
 
 CAPTURE AND SEIZUEE. 
 
 222 
 
 What is not 1ob8 by. 
 
 1 4. She was condemned for nayigating con- 
 trary to the ordinance of the belligerent cap- 
 tors to which ordinance the neutral had never 
 assented by treaty or otherwise. Held, a court 
 of admiralty must proceed according to the 
 law of nations, and such ti'eaties as pai'ticular 
 states have agi'eed shall be engrafted on that 
 Ifiw; that an ordinance is ex parte merely, to 
 which no other state is a party ; that it was 
 not competent for one nation to add to the law 
 of nations by its own arbitrary ordinances 
 without the concurrence of other nations, and 
 that the ordinance in question was invalid; 
 that the capture founded on it was unlawful, 
 and did not release the insurer. Pollard v. 
 Bell, 8 Teim, 434; Bird v. Appleton, id., *562; 
 Price V. Bell, 1 East, 663. 
 
 15. "Warranted free from confiscation by 
 the government in the ship's port or ports of 
 discharge." She came to anchor in the roads 
 of Pillau, was boarded by two boats, one with 
 Prussian soldiers, the other with French ma- 
 rines, who disputed the possession of each. 
 They took her into Pillau to ascertain their 
 claims, where her cargo was taken onl and 
 condemned as prize to the French captors. 
 Seld, not a confiscation in the ship's port of 
 discharge ; that it was a capture by the French. 
 leni V. AUnutt, 15 East, 267. 
 
 16. On ship for a year ending April 21, 
 1853. On her home voyage, she was captured 
 by pirates, December, 1851, and was recap- 
 tured January, 1853, by an English war steam- 
 er, and carried to Valparaiso. Information 
 of all reached owner, at one time, end of 
 April, 1852, who abandoned on the 30th, stat- 
 ins as the grounds of abandonment condem- 
 nation as prize to Her Majesty's steamer. She 
 was sent home by the recaptors, met with bad 
 weather, put into Fayal, and sold by the prize 
 master, but her condition did not authorize 
 the sale, ffeld, there was a total loss by the 
 seizure. Be/m v. Hornby, 3 El. & B., 180; 23 
 L. J. Q.B., 139; 18 Jur., 623. 
 
 17. "On cargo, warranted free from capture, 
 seizure, and detention, and all the consequences 
 thereof or any attempt thereat, and free from 
 all consequences of, hostilities, riots, or com- 
 motions." She went ashore off Cape Hatteras. 
 Confederate officers came out to her and took 
 the captain and his papers on shore, and de- 
 tained him and crew as prisoners; 150 bags 
 of coffee, part of the cargo, were saved, and 
 1,000 bags more might have been taken out 
 
 before she broke up, if the confederate author, 
 ities had not interfered. Held, insurers were 
 not liable for that which was and might have 
 been saved, because it was a loss within the 
 exception, a consequence of hostilities; that 
 as to the cargo which could have been saved, 
 insurers were liable, because that was a loss 
 by perils of the sea. lonides e. Universal Ma- 
 rine Ins. Co., 14 C. B. (N. S.), 259; s. c, 32 
 L. J. C. P., 170; 11 W. R., 858; 8 L. T. (N. S.), 
 705. 
 
 18. Against such risks only as are excluded 
 by the clause, " Warranted free from capture, 
 seizure or detention, or the consequences of 
 any attempt thereof." Stipulated: "Insurers 
 shall pay a total loss thirty days after receipt 
 of official news of capture or embargo, with- 
 out waiting for condemnation." She was de- 
 tained by an embargo in a Danish port, after 
 the breaking out of hostilities between Den- 
 mark and Germany. Held, insured's right to 
 claim for a total loss rested on the expiration 
 of thirty daysafler receipt of ofBcial informii- 
 tion, notwithstanding the vessel was never 
 actually taken out of the possession of the 
 master, and was, after action brought, restored 
 and arrived safely at the port of destination. 
 bowler V. English and Scottish Marine Ins. Co., 
 18 C. B. (N. S.), 818; s. c, 11 Jur. (N. S.), 411 ; 
 34 L. J. C. P., 253; 13 W. R., 658; 13 L. T. (N. 
 S.), 381. 
 
 19. On goods against perils "Of the seas, 
 men of war, fire, enemies, pirates, rovers, 
 thieves, letters of mart and countermart, sur- 
 prisals, takings at sea, arrests, restraints and 
 of all other perils, losses and misfortunes; 
 warranted free from seizure and the conse- 
 quences of any attempt thereof." She was in- 
 tentionally fired into by a Russian fort on the 
 left bank of the Danube, and sunk while she 
 had a British fiag flying. There were no hos- 
 tilities between England and Russia ; there was 
 war between Turkey and Russia, and the com- 
 mander of the fort declared that he mistook 
 the British for the Turkish flag. Held, an 
 illegal seizure or attempt to seize, for which 
 insurers were exempt by the terms of the 
 warranty. Powell v. Hyde, 5 El. & Bl., 607; 
 B. c, 3 Jur. (N. 8.), 87; 35 L. J. Q. B., 65. 
 
 II. What is not loss by. 
 
 I. " All risk of a blockaded port excepted, 
 but if turned away, to proceed to a port not 
 
 111 
 
223 
 
 CABGO— CHANGE OF VENUE, 
 
 224 
 
 Miscellaneous. 
 
 blockaded." On the coast of Portugal, off the 
 port of St. Mary'Sj about two leagues from 
 shore, while bound to St. Lucas, she was cap- 
 tured by a British cruiser. Held, the excep- 
 tion relieved the insurer from loss by capture, 
 whether legal or illegal. Baddiffe ®. United 
 Im. Co., 7 Johns., 38. 
 
 2. On ship from New York to Bremen, or 
 a port of discharge in the North Sea or Baltic, 
 p,gainat capture only: "Warranted American 
 property, and free from seizure in river, port 
 or place, under jurisdiction of Napoleon or of 
 any power under his control or in alliance 
 with him." She was taken on the coast of 
 Holland by two French privateers, carried 
 to Amsterdam and condemned. The cap- 
 ture was within the jurisdiction of Holland, 
 and Holland was in alliance with Napoleon. 
 Held, the term seizure was synonymous 
 with capture, that although the insurer as- 
 sumed the risk of capture generally, he ex- 
 empted himself when made under any of 
 the circumstances mentioned in the warran- 
 ty; and the capture having been made with- 
 in the exception, as to place, insurer was 
 discharged. Black «. Marine Ins. Oo., 11 
 Johns., 387. 
 
 3. Warranted not to abandon "in case of 
 capture, until condemned. Seld, it means a 
 capture y«r« belli and a judicial condemnation 
 in a prize court of competent jurisdiction. 
 Bavney v. Maryland Ins. Co., 5 H. & J., 139. 
 The vessel was captured and detained by her 
 captors, and without any judicial proceedings 
 taken into the service of the French govern- 
 ment. Held, the insured could not recover. 
 Hid. 
 
 4. " Warranted free from capture and seiz- 
 ure, and the consequences of any attempt 
 thereat." The emigrants assaulted the captain 
 and crew, took forcible possession of the vessel, 
 and carried her away. Held, a loss by seizure, 
 and, therefore, within the exception, for which 
 the insurer was not liable. Kleinwort v.Shep- 
 ard, 1 Bl. & El., 447 ; 5 Jur. (N. S.), 863; 28 L. 
 J.Q. B., 147;7W. R.227. 
 
 CARGO. 
 
 (SeeCoxsTBtronoN; Csok Loads; Polict.) 
 
 CARRIERS. 
 
 (See CousoN Cabbibbs.) 
 
 CAUSA PROXIMA. 
 
 (Seo Pboxdute Gauss or Loss.) 
 
 CHANGE OP RISK. 
 
 (See Bbtuuon; Incbease ob CHANas of BisSk) 
 
 CHANGE OP VENUE. 
 
 1. The defendant claimed a change of venue, 
 predicating the right upon the prejudice of the 
 judge before whom the cause was pending. 
 Held, the judge had the ijower to fix a time in 
 vacation for the trial of the cause; the rule in 
 this r&spect is not the same in civil as it is in 
 criminal cases (citing JBJx parte Skeen, 41 Ind., 
 418). Aurora Fire Ins. Oo. o. Johnson, 46 Ind., 
 315. 
 
 2. The insurer, a body corporate, applied 
 for change of venue. The affidavit was sworn 
 by the secretary. Held, sufficient, for the word 
 person or persons, includes bodies corporate 
 and politic as well as natural persons (Scales 
 Stat., 728, ch. 90, sec. 29). Oormaereial Ins. Go., 
 B. Mehlman, 48 111., 313. 
 
 3. Motion for a change of venue. The affi- 
 davit stated the cause of -action arose in Lon- 
 don and not elsewhere; but the declaration 
 showed that the statement was incorrect. 
 Held, the court would test the affidavit by 
 the declaration, and the motion was refused. 
 Butler V. Fox, 7 C. B., 970. 
 
 4. Affidavit for change of venue stated that 
 a view of the premises was necessary. Held, 
 insufficient ; the reason why a view was neces- 
 sary should have been stated. M 'LougMin v. 
 Royal FxeJutnge Ass. Co., 9 Irish Law, 510. 
 
 5. An affidavit was filed, setting forth, that 
 it was material to the defense that a view of 
 the premises should be had by the jurors, 
 who should be summoned to try the action. 
 Held, cause for change of venue (citing 
 Hodinott v. Cox, 8 East, 268). McDonald 
 V. Oarr, Hayes, 875. 
 
 112 
 
225 
 
 CITIZENS — COLLISION. 
 
 226 
 
 Who are, and who are not — When insurers are Hable for. 
 
 CITIZENS. 
 
 I. Who are. 
 
 II. HOT. 
 
 I. Who ABE. 
 
 1. Warranted American property, proof of 
 ■which to be required In the United States only. 
 She was captured; an abandonment offered 
 and refused. The record of plaintlflf s natu- 
 ralization was offered to prove his citizenship, 
 but failed to show he had made a declaration 
 of his intention to become tf citizen, nor did 
 it show that he resided within the limits and 
 under the jurisdiction of the United States at 
 any time between June 18, 1798, and April 14, 
 1802, nor did it show that he continued to re- 
 side therein, so as to be entitled to the benefit 
 of the act of March 26, 1804. Held, the rec- 
 ord of citizenship was sufficient. Stark v. 
 CTi£sa/peake Int. Co., 7 Cranch, 420. 
 
 2. B. emigrated from Spain to the United 
 States In time of peace. Held, if he was bona 
 fide domiciled with the intention of indefinite 
 residence, he Is as to all foreign countries a 
 citizen of the United States, and when the 
 domicile was fixed and ascertained, the char- 
 acter of his trade was immaterial. Livingston 
 D. Maryland Iiis. Co., 7 Cranch, 506. 
 
 3. A native subject of Great Britain domi- 
 ciled in America, for the purposes of com- 
 merce, acquires the rights of an American 
 citizen so far as they relate to commerce. 
 Duguet v. Rhinelander, 1 Caines Gas., 25. 
 
 4. On ship. " Warranted American prop- 
 erty." The plaintiff had married an English 
 woman three years before the policy was 
 made, and resided in Liverpool, being a na- 
 tive American. The vessel was American 
 built, purchased in America, of an American. 
 The plaintiff intended to go with his family 
 to America and reside there in the future. 
 Held, persons resident in a country carrying 
 on trade, by which they and the country are 
 benefited, are the subjects of that country by 
 the law of nations, hence she was not Ameri- 
 can property, and the warranty was broken. 
 Tabhs V. Bendelafk,i Esp., 108; 3 B. & P., 
 307, n. 
 
 5. A natural born subject of England may 
 be a citizen of America for the purposes of 
 commerce, and as such entitled, under the 
 
 treaty then existing, to all the advantages of 
 an American citizen, and a temporary resi- 
 dence in England could not deprive him of 
 any of the rights which his American citizen- 
 ship conferred. Wilson ■». Marryat, 8 Term, 
 316; 1 B. & P., 430. 
 
 II. "Who ABE NOT. 
 
 A corporate body is not a citizen of the 
 United States, within the 14th amendment. 
 Insurance Go. v. City of New Orleans, 1 Woods, 
 85. 
 
 COLLISION. 
 
 I. When insubbbs are liable foe. 
 
 II. NOT LIABLE FOB. 
 
 I. "When insubebs aee liable foe. 
 
 1. On ship for one year against loss by 
 perils of the sea. She sailed from Hamburg 
 in ballast, intending to take a cargo of Iron at 
 Gottenburgh for the United States. In pro- 
 ceeding down the Elbe she collided with the 
 galliot, called the Prau Anna, and sunk her, 
 for which she was libeled at Hamburg. She 
 lost her jib boom, bowsprit, and sustained 
 other damage to the amount of $800, includ- 
 ing expense in defending the libel. The gal- 
 liot, her cargo and freight, amounted to $6,000, 
 including the expense of prosecuting the 
 libel. The marine court at Hamburg decreed 
 that the collision was not the result of care- 
 lessness on either side, and that, therefore, ac- 
 cording to the marine law of Hamburg, the 
 loss sustained by both parties was to be con- 
 sidered a general average, to be borne equally 
 by each party, the result of which was, the 
 insured were compelled to pay $3,600 to satis- 
 fy the decree. Held, a loss by collision with- 
 out any fault on either side is a loss by the 
 perils of the sea, within the protection of the 
 policy. Hild, also, insurers were liable only 
 for losses arising, not from causes remotely 
 connected with the peril, but for those only 
 which were the proximate cause; that the 
 question was. What, in just sense, was the 
 proximate cause of this loss? That the col- 
 lision was the proximate cause of the Io.ss, 
 and the contribution a consequence of tho 
 
 118 
 
227 
 
 COLLISION. 
 
 228 
 
 When insurers are liable for. 
 
 collision, not a cause; that the maxim cav,sa 
 proxima non remota ipectatur is not without 
 limitations ; that it has been constantly quali- 
 fied and constantly applied only in a modified, 
 practical sense to the perils insured against; 
 that in all foreign voyages the underwriters 
 necessarily contemplate that the vessel in- 
 sured may be subjected to the operation of 
 the laws of foreign ports, which may in some 
 cases impose burdens or confer benefits diflfer- 
 ent from our own laws, and therefore insurers 
 were liable for the amount paid by the in- 
 sured faffirming s. c, 3 Sumn., 389 ; s. c, 1 
 Story, 463). Peters u. Warren Ins. Go., 14 
 Pet., 99. 
 
 2. Time policy on ship. Through the 
 fault or mistake of the mate and crew she 
 came in collision with the bark Ritchie, both 
 vessels were damaged seriously. The ship in- 
 sured was libeled by the Kitchie, and to pre- 
 vent prosecution the master compromised the 
 damages, £738, by payment of £382, and this 
 was a proceeding in admiralty to recover of in- 
 surers the money paid and cost of her repairs. 
 Held, whether the money paid for damage to 
 the other vessel was fixed by a proceeding 
 m rem or paid without any process or pro- 
 ceedings was of no importance, for the loss 
 paid by the master for damages to the bark 
 was a loss within the policy, and the insurers 
 were liable for it. Sale v. Washington Ins. 
 Co., S Story, 176 ; denied, General Mut. Ins. 
 Co. V. Slierwood, 14 How., 351. 
 
 3. On ship for a term, against the perils of 
 the sea and other customary perils. She col- 
 lided with an another vessel and both were 
 greatly damaged. She was libeled and in- 
 sured were decreed to pay £2,500 to the own- 
 ers of the other vessel. Insurers paid their 
 proportion of the expenses of repairing the 
 ship insured. Held, the policy sweeps within 
 its inclosure every peril incident to the voyage 
 however strange or unexpected unless there 
 be special exception; that the insurer was li- 
 able for damage done to the other vessel not- 
 withstanding it was caused by the negligence 
 of the master and mariners. Nelson v. Suf- 
 folk Ins. Co., 8 Gush., 477. 
 
 4. The ship insured was decreed to make 
 good certain damages inflicted by her upon 
 another vessel. Held, her insurers were li- 
 able for them, including fees of counsel and 
 commissions of an agent if fairly and proper- 
 ly incurred in defending the suit brought 
 
 114 
 
 against her (citing Nelson v. Suffolk Ins. Co., 
 18 Cush., 477; Walker «. Boston Ins. Co., 14 
 Gray, 288). Blanehavrd v. Equitable Safety 
 Ins. Co., 12 Allen, 386. 
 
 5. On steamer taking certain risks men- 
 tioned, " and all other perils, losses, and mis- 
 fortunes which shall come to the damage of 
 the said boat, according to the general laws of 
 insurance." In consequence of the negli- 
 gence of the navigators of another steamer, 
 the vessel insured ran foul of the other and 
 the vessel insured was greatly damaged. Held, 
 a loss within the policy. Caldwell v. St. Louis 
 Perpetual Ins. Co., 1 La. An., 85. 
 
 6. She was run down through the gross 
 negligence of the oflScers and crew of another 
 vessel. Held, a loss by perils of the sea. 
 Smith V. Scott, 4 Taunt., 126. 
 
 7. Loss by collision was one of the perils 
 insured against. She collided with another 
 vessel, and was arrested in admiralty for the 
 damages. The owners and managers of the 
 company agreed that she should be released 
 on payment of the amount of damage which 
 the other ship had received by the collision, 
 and the costs of the proceedings in admiralty ; 
 and in case of dispute as to the amount of 
 damages, it should be settled by an arbitrator. 
 It was so referred, and a sum was allowed for 
 collision, and a separate sum for detention 
 while the damages were being repaired. 
 Held, insurers were liable for both items. 
 Heaa-d v. Holman, 13 W. R., 745; 11 Jur. (N. S.), 
 544; 12L.T. (N. S.),455. 
 
 8. " On ship including the risk of running 
 down or doing damage to any other vessel the 
 same as the Indem. Co.'s policy." The clause 
 in that policy was as follows: "If the ship 
 by negligence shall run down any vessel and 
 the insured shall tliereby become liable to pay 
 and shall pay any sum not exceeding the val 
 ue of the ship or vessel insured and her freight, 
 by or in pursuance of any judgment of any 
 court of law or equity, insurers shall pay such 
 proportion of three-fourths of the sum paid as 
 the sum hereby, insured shall bear to the val- 
 ue of the ship or vessel hereby insured and 
 her freight." Tlie vessel insured ran down 
 another vessel and she was sold under a 
 decree in admiralty, and tlie proceeds paid 
 over to satisfy the damages. She was of 
 greater value than £3,000. Held, the insurers 
 were bound to make good three-fourths of the 
 amount paid, namely, £2,110. Thimpson v. 
 
229 
 
 COMMON CARRIERS. 
 
 230 
 
 Liability of. 
 
 if«yn#Ms, 7 El. & Bl., 173; s. c, 3 Jur. (N. S.), 
 464; 26 L. J. Q. B., 93. 
 
 9. SUe was lost by collision with a schooner 
 on Lake Michigan. Plea; she ought to have 
 kept out of the way of the schooner; that tlie 
 law presumes the fault hers. Replication ; the 
 collision was not caused by the want of ordi- 
 niiry skill and care in navigating her. Re- 
 joinder; she was sailing in American waters 
 at the time of the loss, under American colors; 
 that defendants are an American company; 
 that by the law of America the schooner was 
 justified in keeping her course ; and the steam- 
 er, the vessel lost, should have kept away, yet 
 she did not do so, as she migiit easily have 
 done; that by reason of said facts, the said 
 collision did occur from want of ordinary 
 care and skill in navigating said steamer. 
 Surrejoinder; the said steamer was not lost 
 by want of ordinary care and skill in navigat- 
 ing said steamer, as alleged in said rejoinder. 
 Held, a good surrejoinder. Patterson, «. Con- 
 tinental Ins. Co., 18 U. C. Q. B., 9. 
 
 II. When otsueees aee not liable foe. 
 
 1. On ship for one year, to expire October 
 17, 1844. She was bound for New York; had 
 skillful and experienced master and mates, 
 and a competent crew. In the afternoon of 
 March 19th a licensed pilot boarded her and 
 took command ; she was close hauled. In at- 
 tempting to go about, she missed stays, and in 
 the act of wearing ship the rigging became 
 entangled, and while the crew were attending 
 to it, a schooner ran close up. Confused by 
 her sudden appearance, the mate erroneously 
 ordered the helm hard down and luffed her up ; 
 she ran into and sunk the schooner, doing dam- 
 age to herself about $300. She was condemned 
 in admiralty for the damage to the schooner and 
 cargo. The owners of the ship insured sought 
 to recover of their insurers, who had been 
 seasonably notified of the proceedings in ad- 
 miralty, and had been requested to unite in 
 the defense or take such other steps as they 
 might deem proper. This case was tried be- 
 fore Betts and Nelson, JJ., who gave judg- 
 ment against the insurance company. Held, 
 the damages sustained by the schooner and her 
 cargo were not within tlie meaning of the 
 contract, and the judgment below (1 Blatch, 
 331} was therefore reversed. QeneriU Mut. 
 
 Ins. Co. V. Sherwood, 14 How., 851 ; 1 Blatch, 
 251. 
 
 2. A vessel insured ran foul of another, and, 
 without doing any iiyury to herself, greatly 
 damaged the other. The policy was against 
 loss by perils of the sea; and the insured was 
 compelled to pay the damage on the ground 
 that it was caused by the negligence of the 
 officers and crew of the ship insured. Held, 
 the loss was not within the policy. Matfiews 
 «. Howard Ins. Co., 11 N. T., 9 ; reversing s. c, 
 13 Barb., 334. 
 
 3. Insurers of ship were held liable for 
 damage to the vessel insured, by collision at 
 sea, notwithstanding it was caused by the 
 negligence of the master and crew of the ves- 
 sel insured, for collision is a peril of the sea; 
 but for damages done to the other vessel by 
 the vessel insured, no recovery was allowed. 
 Street v. Augusta Ins. Co., 13 Rich., 13. 
 
 4. Ship insured came into collision with 
 another vessel ; damage to both. The question 
 of fault was referred to arbitrators, who de- 
 cided the damages to both should be ascer- 
 tained and the sum divided, each paying one- 
 half. While the ship insured was detained, 
 an additional expense for crew and provisions 
 was incurred. Held, the insurer was not liable 
 for the additional expense. DeVeatixv. Sal- 
 vador, 4 A. & E., 430; 5 L. J. (N. S.), K. B., 
 134; 6 N.&M., 713. 
 
 5. " On ship and freight for twelve months, 
 including damages caused to any other vessel, 
 by collision, for which insured might be held 
 liable." She ran down the Magyar, which 
 went down with the master and crew, some of 
 whom were lost, and the owners were com- 
 pelled to answer in damages to the personal 
 representatives. Held, not a loss within the 
 policy. Taylor v. Dewar, 5 B. & S., 58 ; a. c, 
 33 L. J. Q. B., 141 ; 12 W. R., 579 ; 10 L. T. (N. 
 S.), 267; 10 Jur. (N. S.), 361. 
 
 COMMON CARRIERS. 
 
 LlABILITT OF. 
 
 1. The plaintiff sued the common carrier 
 for the use of certain insurance companies to 
 recover the value of goods accidentally burned 
 while they were being transported. Held, as 
 against the carrier, no defense was admissible 
 
 115 
 
231 
 
 COMPROMISE OR SETTLEMENT. 
 
 232 
 
 Condusive. 
 
 except sudh causes of loss as the common law 
 recognized or those causes which the parties 
 expressly stipulate against; that in relation toi 
 loss not caused by any excepted perils, the; 
 law raises against the carrier, however inno-i 
 cent may have been his conduct, a conclusivei 
 presumption of misconduct. Hall v. Bailroadi 
 Oompaniet, 13 Wall., 367. 
 
 2. Insurers of a cargo of wheat, damaged' 
 on the voyage, took possession of it with the| 
 carrier's consent, "For account of whom it 
 might concern." By consent of all parties.i 
 insm-ere' agent took entire charge of the cargo,' 
 separated the damaged from the undamaged,' 
 and sold it for the best price that could be ob- 
 tained, and stored the residue. In the spring, 
 by consent of all parties, the carrier took the 
 sound wheat, put it on another boat, and car- 
 ried it to tlie consignees. Insurers paid in- 
 sured the amount of the net loss, $1,846.75. 
 Held, acceptance of the property at the point 
 of distress did not release the carrier from his 
 -liability, and there being no evidfence to show 
 that the damage resulted from any cause that 
 would excuse the carrier, insurers were en- 
 titled to recover. Home Ins. Co. v. Western 
 Transp. Co., 51 N. T., 93 ; s. c, 4 Rob., 257 ; 83 
 How. Pr., 103. 
 
 3. The defendant, a common carrier, took 
 57 bales of cotton at Osyka, Miss., to trans- 
 port them to New Orleans, for whicli it gave 
 a bill of lading which stipulated : " But it 
 does not insure against risk by fire." The 
 cotton was entirely consumed by fire, on the 
 the train, and insurer thereof paid the insured 
 and brought this suit to recover, on the ground 
 that tlie loss was caused by the negligence of 
 the carrier. Seld, before the carrier could be 
 made liable it must appear that the loss was 
 caused by the carrier's fault or negligence, 
 and the carrier must be held liable for ordi- 
 nary negligence. N'eio Orleans Mut. Ins. Go. 
 V. Nea Orleans and Jackson B. R. Co., 20 La. 
 An., 302. 
 
 COMPROMISE OR SETTLEMENT. 
 
 I. Not coNCLusiTE. 
 
 II. CONCLUSITE. 
 
 I. Not coNCLtrsivE. 
 1. A. owed R. |70, and he took a policy on 
 116 
 
 his own life for $3,000, for seven years. But 
 B. agreed to pay the premiums, and A. died 
 intestate seven months after the policy was 
 issued, leaving a widow and children. B. 
 produced A.'s note to him for $3,000, con- 
 fessed that it was given without considera- 
 tion, and produced A-'s assignment of the 
 policy to him. Among A.'s papers there was 
 one in which B. agreed to pay to the wife 
 of A., his heirs and assigns, one-third of the 
 full amount of the policy, provided he should 
 collect it from the insurance company. B. 
 received the whole sum insured, and paid the 
 wife one-third, less some small deductions, 
 which she accepted, in ignorance of the full 
 extent of her rights, largely influenced by the 
 advice of her late husband's friends, and »f. 
 terwards she took out letters of administra- 
 tion and sued B. for the balance of the amount 
 received. Seld, 3. was bound to account to 
 A.'s estate for the'vrhole sum, less the amount 
 of premiums or any just setoflf; that she was 
 not concluded by her receipt of the one-thu^}. 
 Oammaek v. Leieis, 15 Wall., 643. 
 
 2. "1,500— say |500 on dwelling house, 
 $600 on barn and $400 on the produce there- 
 in." The bam and its contents were destroyed. 
 The .insurer admitted a liability for the pro- 
 duce, but denied liability for the bam, on the 
 ground that insured's interest was not abso- 
 lute. Insurer paid $400 on the loss of the 
 produce, and took a receipt, in which the in- 
 sured declared that the $400 was taken in full 
 satisfaction for the loss sustained on the poli- 
 cy, "canceling $1,500 on said policy." EM, 
 the plaintifi was entitled to recover, for there 
 was no consideration for the discharge in re- 
 spect to the insurance on the barn. Sedfield 
 ■v. Holland Purchase Ins. Co., 56 N. T., 354. 
 
 3. Insurer and the insured agreed upon an 
 amount to be paid for the loss, and insurer, in 
 writing, admitted that the proof of loss had 
 been received and accepted, and the loss 
 would be paid in 90 days from March 11, 
 1867. The fire occurred in February, 1867. 
 Held, if the claim was disputed and insured 
 and insurer agreed upon a sum less than that 
 claimed, and insurer promised to pay it, the 
 promise was not nudum pactum, for it was a 
 case of compromise. Farmers and Merchants 
 Ins. Go. V. Ohesnut, 50 111., 111. 
 
 4. Appellant sustained a loss of $4,568, 
 against which he held a policy of the Lamar 
 Ins. Co. for $3,500. The People's Ins. Co. had 
 
233 
 
 COMPROMISE AND SETTLEMENT. 
 
 234: 
 
 Not condusive. 
 
 reinsured the Lamar Co. The vice president 
 of " The People's " induced iusured to sell 
 Ilia claim against the Lamar Co. to him for 
 $712, the compromise being procured by the 
 coucvirrence of the officers of tlie Lamar and 
 People's Ins. Cos. Subsequently it appeared 
 that the resources of the Lamar Co. were 
 much larger than they were represented to be 
 at the time tlie compromise was eftected. 
 Held, insured was entitled to prove his claim 
 against the Lamar Co., making the vice presi- 
 dent of the People's Ins. Co. a party defend- 
 ant 111. S. C. Derrick o. Zamar Ins. Go., 7 
 Chi. Leg. News, 19S. 
 
 5. " Warranted free of capture in port" 
 Insured received a letter announcing her cap- 
 ture, stating it to have been in port Insui-er 
 and insured adjusted; the former returned 
 and the latter received the premium back. 
 But it afterwards appeared that the capture 
 was "not in port Meld, the adjustment and 
 repayment of the premium did not preclude 
 the insured from recovering upon the policy. 
 Jieyner c. HaU, 4 Taunt, 735. 
 
 6. On cargo, at fifteen guineas per cent, 
 two to be returned on arrival. She was seized 
 by the Dutch government and liberated upon 
 bond made by the insured. The cargo was 
 condemned and the insured satisfied his bond ; 
 but before sentence of condemnation, tlie bro- 
 ker of the insured applied to the insurer for 
 the return premium, the ship having arrived 
 home. The initials of the insurer were put to 
 the policy in the usual way, to signify that it 
 had been adjusted. Beld, it was a question 
 for the jury to determine whetlier the whole 
 adventure was closed by the acceptance of the 
 return premium, or whether it was received 
 witli a reservation that the insured should be 
 liable if the bond were put in force. May «. 
 CArM<J«,HoltN.P.,67. 
 
 7. Policy to D. on goods his own, in trust, 
 or on commission. P. deposited wheat in the 
 warehouse of D., in which D. had a large 
 quantity of goods. D. preferred a claim for 
 the goods of P. along with his own, which 
 was rejected. He then made an amended 
 claim, limiting it to his own goods, and was 
 paid for them, granting a receipt as follows: 
 "Being their proportion of a claim made by 
 me for loss by fire." This action was brought 
 to recover the value of P.'s wheat Held, the 
 rights of the parties were vested when the fire 
 occurred; payment to D. did not discharge in- 1 
 
 surers of their liability for the goods of P. ; 
 that though D. had the right to receive pay- 
 ment and discharge claims, that right was 
 confined to an actual payment, and he had not 
 power to discharge a claim for which no pay- 
 ment had been made. Donaldson v. Manches- 
 ter Ins. Go., 14 C. C. S., 601. 
 
 11. Conclusive. 
 
 1. Policy to B. & C, copartners. After a 
 loss occurred, B. surrendered the policy to de- 
 fendant for a sum of money to him paid in 
 satisfaction and compromise of all claims 
 under it, he giving a receipt and discharge in 
 tlie name of the firm. B. divided the money 
 with his copartner. Held, the insured could 
 not avail themselves of the fraud of defend- 
 ant's agent who procured the compromise, so 
 long as they retained the money paid for it 
 Brotcn v. Hartford Fire las. Go., 117 Mass., 
 479. 
 
 2. The insured settled with the vmderwriter 
 for a partial loss, and surrendered the policy. 
 A claim was then pending against her in ad- 
 miralty for salvage, which, if successful, would 
 increase the loss, but nothing was said about 
 it in the settlement It was afterwards ad- 
 judged against the insured. Held, insured 
 could not recovtjT it from insurer. Batre v. 
 Louisiana Ins. Go., 13 La. (O. S.), 577. 
 
 3. The charter provided : " Each member 
 shall have his premium note surrendered at 
 the expiration of the term insured, upon pay- 
 ment of his share of losses and expenses, or 
 upon alienation of the property, and like pay- 
 ment of his share of losses and expenses, or 
 upon payment of the whole of the premium 
 note and surrender of the policy. The direct- 
 ors were authorized to superintend the con- 
 cerns of the company. Held, they had author- 
 ity to compromise a suit brought to recover 
 assessments. Wadsworthv. Davis, 13 Ohio St, 
 123. 
 
 4. Insurer's adjuster offered the sum of $500 
 to settle the claim without going into details. 
 Insured declined, and expostulated with the 
 adjuster, who said that insured would have t( i 
 make out his proofs and present his claims at 
 the office in Cincinnati ; that they would be 
 referred to him, and that he would then ad- 
 here to the present offer ; that if iusured should 
 be finally dissatisfied, he had his legal remedy. 
 Insured accepted the offer, and brought this 
 
 117 
 
235 
 
 CONCEALMENT. 
 
 236 
 
 What is. 
 
 bill to set the compromise aside. Held, how- 
 ever unwise this hasty settlement might )>e, it 
 it was not the result of abuse of confidence, 
 nor was it an actionable fraud, therefore it 
 could not be set aside. Mayhew v. Phoenix 
 Ina. Go., 33 Mich., 105. 
 
 CONCEALMENT. 
 
 (See iKonKBBANOES ; Wabbanty.) 
 
 I. What is. 
 
 (a) Of the interest of insured. 
 
 (b) Of attempts or rumored attempts to 
 
 destroy ths property. 
 
 (c) As to time of sailing. 
 
 (A) As to information of loss, damage, 
 
 etc. 
 (e) Of occupation. 
 IL What is not. 
 
 (a) Of the interest of insured. 
 
 (b) Of time of sailing. 
 
 (c) As to information of loss, da/mage, 
 
 or danger apprehended. 
 
 (d) As to matters with which insurers 
 
 are presumed to he acquainted. 
 
 (e) Qf express or implied wa/rranties. 
 
 (f ) As to loading. 
 
 (g) Of the refusal of other insurers to 
 
 accept the risk. 
 
 III. What is not material. 
 
 IV. QtTBSTIONS FOB THE JDKT. 
 
 V. Generally. 
 
 I. "What is. 
 
 (a) Cf the mtereat of insv/red. 
 
 1. If the nature of the interest of insured 
 might influence the insurer to demand a 
 higher rate of premium or not to insure at all, 
 it is material to the risk, and failure to dis- 
 close it, or misrepresentation in respect of it, 
 avoids the policy. Columbian Ins. Go. v. Law- 
 rence, 10 Pet., 507. 
 
 2. G., R. & F. were authorized by the defend- 
 ant to effect binding risks at Buffalo, on vessels, 
 steamboats, propellers, and their cargoes, the 
 policies to be forwarded on receipt of applica- 
 tion, unless insurers elected to decline, agents 
 to receive a commission of ten per cent, on the 
 
 118 
 
 premiums. R., one of the parties above named, 
 was part owner of a steamboat, and an appli- 
 cation was made and forwarded to defendants 
 for a policy upon her, in the name of Francis 
 Handel in behalf of himself and other own- 
 ers, but it nowhere disclosed that one of their 
 agents was a part owner of the vessel. Held, 
 if the interest of R. was purposely withheld 
 from the knowledge of the defendants, the 
 policy was void, for the intended and willful 
 concealment, though immaterial, was in law a 
 fraudulent concealment. Bitt v. Washington 
 Marine and Fire Ins. Co., 41 Barb., 353. 
 
 3. N. was the owner of one undivided half 
 of the premises insured. He effected a policy 
 in .his own name, for his own benefit, to the 
 amount of $15,000. He did not disclose his 
 interest. Held, tlie contract was void. Catron 
 v. Tennessee Marine and Fire Ins. Co., 6 
 Humph., 176. 
 
 4. Whether the policy is a wagering 
 policy must be determined by the policy 
 itself. Words must be inserted in it which 
 will enable the underwriter to know that it is 
 a wagering policy, and these cannot be sup- 
 plied by the plaintiff's declaration filed in the 
 cause. Cousins s. Nantes, 3 Taunt., 513. 
 
 (b) Of attempts, or rumored attem^U, 
 to destroy the property. 
 
 ft. The plaintiffs obtained reinsurance, but 
 did not inform reinsurers that the character 
 of the owner of the property was bad; that 
 there had been difficulties in respect to his 
 losses, and that he was in bad repute among 
 insurance companies. They had this infor- 
 mation, however, at the time the reinsurance 
 policy was effected. Held, a fatal conceal- 
 ment. Bowery Fire In*. Co. ii. New York Fire 
 Ins. Go., 17 Wend., 359. 
 
 6. The insured was inquired of concerning 
 attempts at incendiarism, to which he gave 
 negative answers. But the proof showed that 
 attempts had been made, of which he had no- 
 tice, to fire the premises. Held, it was error 
 for the court to assume that an attempt to fire 
 the building might be a circumstance not ma- 
 terial to the risk ; for a fact thus specially in- 
 quired about of such vital importance is to be 
 considered material as a matter of law ; that it 
 was the duty of the court to tell the jury, " If 
 the insured knew that an attempt had been 
 made to burn the premises, and failed to dis- 
 
237 
 
 CONCEALMENT. 
 
 238 
 
 What is. 
 
 close the fact to the insurer's agent, then the 
 insured is not entitled to recover. North 
 Ameriean Fire Ins. Go. v. Throop, 33 Mich., 146. 
 
 7. If tiie insured was induced to procure 
 the insurance because of a rumored attempt to 
 fire the premises, it must be disclosed, and a 
 failure in that respect renders the policy void. 
 Waiden t>. Louisiana Ins. Co-, 12 La. (O. S.), 134. 
 
 8. An adjacent boatbuilder's shop took fire, 
 and after it was put out, the plaintiff, by extra- 
 ordiuarj- conveyance, gave instructions tu 
 procure insurance, hut said nothing about the 
 fire which had occurred. Within a few days 
 thereafter another fire took place in the boat- 
 builder's establishment, and 'the premises in- 
 sured were consumed. The jury found that 
 the fire which occurred in the boatbuilder's 
 establishment prior to the making of the pol- 
 icy ought to have been communicated. Held, 
 insured could not recover. Bufe o. Turner, 6 
 Taunt, 338; 2 Marshy 46. 
 
 (e) As to time of sailing. 
 
 9. Ship sailed September 25th; insured 
 knew October 3d that she had sailed. Held, as 
 she had been out forty-five days between Ja- 
 maica and New York, the date of her sailing 
 was material, and should have been disclosed. 
 Livingston v. Deh^ield, 8 Caines, 49. 
 
 1 0. The ti -ne that a vessel sailed is not or- 
 dinarily a fact material to be made known ; 
 but where there has been a severe storm im- 
 mediately after her sailing, known to the in- 
 sured and unknown to the insurer, or where 
 she is a missing ship, the time of sailing be- 
 comes material, and a failure to disclose it 
 avoids the policy. FisJce v. New EngUuid 
 Ins. Go-, 15 Pick., 310. 
 
 11. Insured was asked, when she was ex- 
 pected to sail ? To which he replied, she had 
 sailed from Charleston six weeks before. He 
 then had two letters written by the master; 
 both of them informed him she was ready to 
 sail. RdUL, a material concealment Himely 
 t. South Carolina Ins. Co., 1 Mills Const, 
 153. 
 
 12. From Bristol to Port Mahon, witli lib- 
 erty to touch at Gibraltar, was made on ship, 
 but ought to have been made on goods. The 
 insured discovered his mistake and wrote to 
 the broker, requesting him to have it rec- 
 tified, and added: "The Sophia you allude 
 to is the ship on which you effected the insur- 
 
 ance ; I chartered the brig, and she was to 
 have gone to Falmouth, as I understood, to 
 join convoy ; but I suppose the wind was con- 
 trary, and she could not fetch the port." Beld, 
 the facts mentioned in the letter ought to have 
 been disclosed to the insurer before the altera- 
 tion was made. Sawtell v. Loudon, 5 Taunt, 
 859; 1 Marsh., 99. 
 
 1 3. The shippers wrote a letter dated No- 
 vember 30th, received December 13th, which 
 stated that she would sail December 1st, and 
 if she should not arrive, to make insurance as 
 low as possible. Held, the contents of tlie let- 
 ter ought to have been communicated to the 
 insurers. WiUes c. Glover, 4 B. & P., 14. 
 
 14. This ship and another, the " Fruiter," 
 sailed from Malaga October 10th. Insurers 
 knew that the latter had arrived at London, 
 but the insured knew that the master of the 
 "Fruiter" had seen the ship insured oft 
 Oporto October 21st, when they then parted 
 company in a gale, which fact was not com- 
 municated to the insvuers. The jury found 
 for the insured. Beld, the case should be sub- 
 mitted to a second jury. Westburjf v. Aberdein, 
 2 Mee. &W., 267; 6 L. J. (N. S.) Ex., 83; 1 
 Jur., 201. 
 
 1 5. When the policy was effected, insured 
 had two letters from their correspondents at 
 port of lading. One, October 11th, stated, we 
 are loading the wines on the Stag, Wilson, 
 master, who pretends to sail after to-morrow. 
 The other, October 13th, inclosed the bills of 
 lading, which were signed "with convoy." 
 Held, a failure to disclose their contents was a 
 fatal concealment Bridges o. Hunter, 1 Mau. 
 & Sel., 15. 
 
 16. There were letters to insured, in which 
 it was stated she would sail in all August. 
 Held, it was material, and should have been 
 communicated to insurer, if it appeared that 
 the fleet usually sailed by August 1st, Shir- 
 ley V. Wilkinson, 8 Doug., 41 ; 1 id., 806 n. 
 
 17. She sailed from Elsineur July 26th, 
 and six hours thereafter her owner left in an- 
 other vessel. He met with rough weather on 
 his passage, and on his arrival procured in- 
 surance. He stated to insurers that she was all 
 well at Elsineur July 26th. Held, the fact that 
 she had sailed before the owner was material, 
 and should have been communicated. Kirby 
 ». Smith, 1 B. & A., 672. 
 
 18. The plaintiff did not make the insur- 
 ance till after the arrival of another ship 
 
 119 
 
239 
 
 CONCEALMENT. 
 
 240 
 
 What is. 
 
 which had sailed with the ship insured. Held, 
 a fatal concealment. McAndrews v. Bell, 1 
 Esp , 373; Webster «. Forater, id., 407. 
 
 19. Goods were shipped at Sydney for 
 England. The shipper sent a letter by another 
 vessel, which sailed afterwards, requesting tlie 
 person to whom it was addressed to wait thirty 
 days after its arrival, and then insure them. 
 After that time had elapsed, the letter was 
 given to a broker to make the insurance. He 
 stated when she sailed and when the letter was 
 written, but he did not state when it was re- 
 ceived in England, nor the instruction to 
 wait thirty days after its receipt before making 
 insurance. Beld, the concealment was fatal. 
 Hickards «. Murdoch, 10 B. & C, 527; 8 L. J. 
 K. B., 310. 
 
 20. The broker who procured the insurance 
 represented that she was expected to load be- 
 tween the 13th and 30th of September. The 
 consignee had written, she was completely 
 laden on the 11th, and ready to sail on the 
 13th. Held, the failiu-e to state that she was 
 ready to sail on the 13th was a fatal conceal- 
 ment, for, if that had been stated, the insurer 
 would have understood that she was a missing 
 ship. Stewart v. Morriion, Faculty Dec, 1778 
 to 1781, p. 102. 
 
 21. A. was directed by letter to procure in- 
 surance on ship and cargo from Elsineur to 
 Leith. The order stated that the master pro- 
 posed to sail that evening. It was received 
 by A. on the 26th. He procured the policy on 
 the 37th, mentioning that he had received the 
 order the day before; that she was to sail im- 
 mediately after the order was written ; but he 
 did not give the date of the order. Held, in- 
 surers were released, for the date was a mate- 
 rial matter which ought to have lieen commu- 
 nicated. Key V. Young, Faculty Dec, 1781 to 
 1787, p. 196. 
 
 22. She sailed from Dundee for London, 
 March 5, 1801. Another ship — "Duchess of 
 Athold" — sailed two days later, and arrived. 
 The brokers who procured this policy were 
 informed of these facts, and that her owners 
 had reason to believe she had been captured. 
 Held, a failure to disclose them to insurers vi- 
 tiated the policy. Allan v. Young, Faculty 
 Dec, 1801 to 1807, p. 248. 
 
 23. The Fanny brought information that 
 the Ohio would sail about twelve hours after 
 the Fanny, and instructions for insurance, " if 
 she does not arrive soon." This information ' 
 
 120 
 
 was not disclosed to insurers. Held, the policy 
 was void. Oilligpie v. Dovglatt, Faculty Dec, 
 1801 to 1807, p. 251. 
 
 (d) As to information of loss, dam- 
 age, etc. 
 
 24. The insured claimed the right to re- 
 recover upon a parol agreement to insure, 
 made December 31st. The policy was not 
 executed and delivered until January 15th. 
 The vessel was lost January 8th. Held, it was 
 the duty of insured to disclose the fact of the 
 loss before the policy was delivered, for then 
 no fraud would have been practiced, and no 
 question as to its validity could have been 
 raised had it been delivered after a disclosure of 
 the loss ; and, had the company refused to de- 
 liver the policy, insured could then have stood 
 upon their parol contract if they had one; 
 there was no necessity to procure the policy 
 by a fraudulent concealment of a material 
 fact, and, having taken the policy, they were 
 bound by its terms, and could not be permit- 
 ted to show by parol that the contract was 
 made before the loss occurred, because that 
 would vary the terms of the policy in a mat- 
 ter material. Insurance Company t. Lyman, 15 
 Wall., 664. 
 
 25. On cargo from Newport to Port Pass- 
 age: "Warranted the property of insured, a 
 citizen of the United States." She was cap. 
 tured and condemned on the ground that part 
 of the cargo — cocoa, tobacco, indigOj etc. — 
 had been purchased at La Guira and Porto 
 Cabello and carried to Charleston, where it 
 remained in the ship, duties bonded, with 
 which she cleared for Passage, carrying the 
 original Spanish papers, showing the origin 
 of that part of the cargo condemned for non- 
 landing at Charleston. Held, insured ought 
 to have informed the insurer of the nonland- 
 ing; that the nature of the cargo did not make 
 it necessary for insurer to inquire as to that 
 fact. Kohne v. Inswrmee Go. of North Amer- 
 ica, 6 Binn., 319; 8. c, 1 Wash. C. C, 93, 158. 
 
 26. If a party who has secret information 
 of a loss, procures insurance without disclos- 
 ing it, the policy is void, because the fraud is 
 manifest; and if he knows that his agent is 
 about to procure the insurance, and withholds 
 the information, it is no less a fraud, though 
 the insurance be procured by his agent, who 
 was ignorant of the loss. His own knowledge 
 
241 
 
 CONCEALMENT. 
 
 242 
 
 What is. 
 
 in such a case infects the act of his agent to 
 the same extent which it would do if the act 
 were his own, for the maxim is, qui faeit per 
 aiium faeit per se. McLanahan «. Universal 
 Ills. Co., 1 Pet., 170. And where the order for 
 insurance is given, and information afterwards 
 reaches the applicant, material to the risk or 
 of the loss, it must be communicated, with 
 reasonable diligence, to the person who has 
 the order to insure, so as to prevent comple- 
 tion of the contract; and a failure to do so 
 avoids the contract Hid. 
 
 27. An effort was made to make insurance 
 at Newburn, but on account of apprehensions 
 against the vessel's safety entertained there, 
 the risk was refused. The owner wrote to his 
 agent at Philadelphia to get insurance there, 
 but stated nothing about the apprehensions 
 which prevailed at Newburn. Held, he could 
 not recover. Vale v. PAcmix Ins. Co., 1 Wash. 
 C. C, 283. 
 
 28. If the insured conceals material facts 
 that are within his knowledge, he cannot re- 
 cover on the policy ; if he knew of, or heard 
 of the loss before he ordered the insurance, 
 they are material facts which should have 
 been stated. Johnson v. Pheenix, Ins. Go., 1 
 Wash. C. C, 378. 
 
 29. The insured had received information 
 that a hurricane had occurred at Charleston 
 after the vessel sailed. Insurers knew that 
 severe gales had prevailed on the coast of Car- 
 olina. Held, the plaintiff's information was 
 particular and the defendant's general; that 
 if there was any difference between the partic- 
 ular and general information, the insured 
 should have communicated it to the insurers. 
 Moses o. Delatcare Ins. Oo., 1 Wash. C. C, 385. 
 
 30. The owner having sent orders from a 
 foreign country to insure, afterwards arrived 
 in the neighborhood of the port to which his 
 orders were transmitted, and on board a vessel 
 which carried one of the orders. He then had 
 reason to believe that the insurance had not 
 been made, and knew that the ship had been 
 lost. Held, he was bound to give notice to 
 his agent of the loss, by the same mail which 
 he knew would carry his order to insure. 
 Watson V. Ddt^kM, 2 Caines, 234; aflSrmed, 2 
 Johns., 626. 
 
 31. Insured received information that all 
 vessels entering the Jade, Elbe or Weser 
 should be confiscated, which information he 
 failed to give to the insurers. Held, the policy 
 
 was void ; withholding that information was 
 fraudulent; hence, plaintiff was not entitled 
 even to any return premium. Hoyt v. Oilman, 
 8 Mass., 836. 
 
 32. A person directed insurance to be made 
 at a distant place on a risk commenced. Held, 
 he was bound to transmit intelligence of tlie 
 loss by the earliest, most expeditious and 
 usual route of mercantile communication; 
 but the omission to send it by unusual and 
 exti-aordinaiy means, by which it might possi- 
 bly arrive before the policy was effected, will 
 not vitiate the contract. Gfreen v. Merchants 
 Ins. Go., 10 Pick., 402. 
 
 33. Policy in the name of B. for D., on 
 cargo. D. wrote a letter at Savannah Decem- 
 ber 24, 1798, to B., at Charleston, directing 
 him to insure. The letter was postmarked the 
 25th. The mail was not closed till 6 o'clock 
 on that evening, nor was there any mail stage 
 thence till the next morning. Intelligence of 
 the loss reached Savannah about 12 noon on 
 the 25th, and notice of it was given at the 
 ofiSce of D. about 1 o'clock, he being absent 
 in the country. His clerks were in the city, 
 and the loss was generally known in Savannah 
 at 1 o'clock on that day. Held, a finding of 
 the jury in favor of the plaintiff was contrary 
 to the weight of evidence, for the absence of 
 the plaintiff from his place of business did 
 not make it less the duty of his clerks to 
 countermand the order for insurance. Byrnes 
 «. Alexander, 1 Brev., 213. 
 
 34. The master had an affray with the 
 natives on the coast of Africa on a former 
 voyage, who threatened to cut him off if he 
 ever came to the coast again. This was not 
 communicated to the insurers, and a verdict 
 was rendered for them. Held, the court would 
 not set it aside. Ingrdham v. Sovth Garolina 
 Ins. Go., 3 Brev., 522. 
 
 35. It was rumored that the vessel had been 
 lost. Insured heard of these rumors, but 
 doubting their truth, he failed to communicate 
 them to insurer when he applied for the policy. 
 HM, a concealment of material facts, which 
 avoided the policy. Oroiham v. General Mui. 
 Ins. Co., 6 La. An., 432. 
 
 36. On bone and bone ash at and from 
 Buenos Ayres, and port or ports of lading in 
 that province, to port or ports of call and dis- 
 charge in the U. E. She sailed from Buenos 
 Ayres to Laguna, in the province, a place 
 where a trade in hides, bone, etc., was carried 
 
 121 
 
243 
 
 CONCEALMENT. 
 
 244 
 
 What is. 
 
 on, but clearances were never issued there. 
 She failed to get a cargo at Laguna, and sailed 
 again for Bueuos Ayres, but was lost before 
 she reached there. Insurer did not know that 
 Laguna was a port in the province of Buenos 
 Ayres, nordidheknow of the intenti<m to send 
 her there, but plaintiff knew that the master 
 had decided to load at Laguna. Sdd, Laguna 
 was a port within the meaning of the policy; 
 that the failure to inform insurer of the mas- 
 ter's intention to load at Laguna was a con- 
 cealment which avoided the policy, for the 
 words of the policy and application implied 
 that it was uncertain whether the vessel would 
 proceed to one or several ports, whereas in- 
 sured had certain information that she would 
 proceed to Laguna to load there. It also ap- 
 peared that other insurers had refused to take 
 the risk from Buenos Ayres to Laguna, thence 
 to the U. K. at the rate of premium accepted 
 by this insurer. HaoTmoer n. Hutchinson, 5 L. 
 K. Q. B., 584; 39 L. J. Q. B., 229; 32 L. T. 
 (N. S.), 684; reversing s. c, 4 L. R. Q. B., 
 533. 
 
 37. On goods and merchandise from George- 
 town, South Carolina, to St. Thomas, with lib- 
 erty to call at Charleston and join convoy. 
 She was captured and condemned on the 
 ground that she sailed from Georgetown with 
 the intention to land part of the cargo at 
 Charleston. Held, a fatal concealment which 
 released insurers. Cunningham v. Oraigie, 
 Bell's Ses. Cas., 268. 
 
 38. A merchant of St. Petersburgh requested 
 his correspondent at Leith to procure insur- 
 ance. She sustained injury which was known 
 by tlie merchant before the next mail left St 
 Petersburgh, but he did not communicate the 
 fact to his correspondent at Leith. Had he 
 done so, that information would have reached 
 his correspondent as soon as the order to in- 
 sure. Held, a fatal concealment SeougaU v. 
 Tmmg, Faculty Dec, 1796 to laOl, p. 166. 
 
 39. The broker was informed that she was 
 seen five or six hours before a heavy gale came 
 on in such a situation that she must have 
 reached a port in that time or have been lost 
 in the storm, of which nothing was disclosed 
 when application was made for the policy. 
 Held, a fatal concealment. Bawker v. Smith, 
 Faculty Dec, 1808 to 1810, p. 571. 
 
 40. Two vessels, the Margaret and the 
 Hunter, sailed in company from Arbroath. 
 Captain B. arrived there and stated he had I 
 
 123 
 
 been told by a Norwegian pilot tliat two ships 
 had been taken by a French privateer oft the 
 coast of Norway, one of which had been burnt, 
 but he doubted the truth of the story. If it 
 were true, he supposed they were the Thomas 
 and the Jupiter, two vessels which had sailed 
 in company with him. The pui-suer heard 
 this and ordered his agents at Aberdeen to 
 procure further insurance upon the Margaret 
 The Margaret and the Hunter were taken two 
 days after they sailed, and the Margaret was 
 burnt, but not exactly in the situation de- 
 scribed by Captain B. Held, the information 
 given by Captain B. should have been dis- 
 closed, and therefore the policy was void. 
 Murriton v. Cfibbon, Faculty Dec, 1810 to 1812, 
 p. 148. 
 
 41. On fruit She was a prize going home 
 for condemnation, but of this nothing was 
 said to insurers. Held, a fatal concealment 
 Meid V. McMillan, Faculty Dec, 1813 to 1814, 
 p. 407. 
 
 42. She sailed from London for Dundee, 
 February 35, 1810. Another sailed the same 
 day, and arrived March 6th. Another sailed 
 March 2d, and arrived March 7th. The Edin- 
 burgh and Leith Telegraph News of March 
 7th, published the capture of a schooner off 
 the mouth of the Tees, on the 2d, by a French 
 lugger-rigged privateer. Insured procured 
 this policy March 10th, which was written 
 •' lost or not lost" Held, insured should have 
 disclosed what he had seen published, because 
 it was a circumstance which induced him to 
 procure the policy; therefore the policy was 
 void. Kirdoch d. Campbett, Faculty Dec, 1814 
 to 1815, p. 421. 
 
 43. An anonymous letter reached Lloyds, 
 in which it was stated that the owners of the 
 Candida intended to lose her on the next 
 voyage. This letter was openly affixed to a 
 board at Lloyds, of which fact the plaintiff 
 had knowledge, and he had this shipment on 
 that vessel indorsed upon his policy without 
 giving any notice to insurers of the anony- 
 mous communication. Held, a concealment 
 which vitiated the contract Leigh e. Adams, 
 25 L. T. (N. S.), 566. 
 
 44. The plaintiff, resident at Liverpool, em- 
 ployed A. to buy madder at Smyrna, and to 
 ship it for him. A. purchased a cargo and 
 advised its shipment January 12th, inclosing 
 shipping documents on the 19th. She sailed 
 on the 33d, and was stranded in the course of 
 
245 
 
 C0NCEAL3IENT. 
 
 246 
 
 What is. 
 
 that day. The cargo became a total loss, of 
 ■which notice was given to the agent tlie next 
 day, who advised his principal of the loss on 
 the 26th, the first post day after the loss, which 
 letter did not reach insured until long after 
 he had made insurance. The agent purposely 
 abstained from sending notice of the loss by 
 telegraph, in order to enable the plaintiff to 
 make insurance. Seld, the plaintiff was af- 
 fected by the knowledge of his agent; that 
 the intentional concealment of the agent was 
 a defense to the action. Proudfoot v. Monte- 
 fore, 2 L. R- Q. B., 511; 15 ^V. R, 930; 36 L. 
 J. Q. B., 223; 16 L. T. (N. S.), 585. 
 
 45. The owners of ship directed the plaint- 
 iff to cause insurance to be made upon her 
 for a year, and he instructed H., an insurance 
 broker, to procure it. He applied for insur- 
 ance, January loth. The plaintiff received a 
 letter from the master on that day, informing 
 him that she had been aground, sustained 
 damage, and had arrived at Carthagena in a 
 sinking condition. The plaintiff communi- 
 cated this information to the broker, who 
 failed to disclose it to insurer, and on the 16th 
 the defendant accepted a risk of dE3,000. Find- 
 ing that notice of the accident had not ap- 
 peared, the plaintiff sent an extract from the 
 master's letter to Lloyds, which was the first 
 information insurer received of it. He wrote 
 the broker: "Understanding that the ship has 
 be€n on shore, I do not consider my risk com- 
 mences until she has been surveyed and re- 
 paired." H. gave no reply. In the books of 
 insurer he remained debited with the premium 
 until after she was subsequently lost, but she 
 had been previously surveyed and repaired 
 at Carthagena, and made perfectly seaworthy 
 for any kind of voyage, April 23d. She was 
 wrecked and totally lost, October 9, 1857. Held, 
 the failure to disclose the information con- 
 veyed in the master's letter was a fatal con- 
 cealment, which avoided the policy; Uiat the 
 defendant's letter to the broker did not estab- 
 lish a new contract, because there was no evi- 
 dence of an acceptance of the terms men- 
 tioned. Ru»»ea o. Thornton, 4 H. & N., 788; 
 29 L. J. Ex., 9; affirmed, 6 H. & N., 140; 80 
 L. J. Ex., 69 ; 6 Jur. (N. S.), 1080 ; 8 W. R, 615. 
 
 46. Insurer agreed to insure freight of ship 
 Pedro Ferrar from Cuba to tlie United King- 
 dom. At the time of procuring this agree- 
 ment, the plaintiff had notice that a British 
 barge, laden with copper ore, was reported 
 
 ashore at Iragua; but of this, nothing was 
 said to insurer. When the policy was de- 
 manded, insurer delivered it under protest, 
 saying, "I sign a policy of Don Pedro Ferrar 
 under protest, and am determined to resist 
 any claim that may be made under it, to the 
 best of my ability." It appeared that the 
 master's letter had advised the insured that 
 she was the only ship taking copper at the 
 time of lading. MM, a concealment of a 
 material fact, which vitiated the contract. 
 NidioUon v. Power, 20 L. T. (N. S.), 580. 
 
 47. The plaintiff's agent received a letter 
 which stated, " I was in company with the 
 ship Davj- at twelve at night, lost sight of her 
 all at once. The captain spoke to me the day 
 before, stating that she was leaky, and the 
 next day we had a hard gale." This was not 
 communicated to insurers. Vessel was lost 
 by capture. Held, a fatal concealment. Sea- 
 man V. fonerean, 2 Strange, 1183. 
 
 48. The broker who procured the insurance 
 saw a notice at Lloyd's which stated that an- 
 other vessel had fallen in with her off the Sal- 
 vages on the 27th; that she was deep and 
 leaky. Held, a failure to communicate this to 
 the insurer avoided this policy notwithstand- 
 ing the notice was absolutely false. Lynch v. 
 Dumford, 14 East, 494; LyneA v. Hamilton, 3 
 Taunt, 37. 
 
 49. At the time the policy was made the 
 insured had intelligence which indicated that 
 she was a missing ship. Held, a new trial 
 would be granted, as the jury's special finding 
 seemed to be imperfect. Mkin v. Jansen, 13 
 Mee. &W., 655; 14 L. J. (N. S), Ex. 201; 9 
 Jut., 353. 
 
 50. The insured heard that a ship described 
 like his was taken, but he made the insurance 
 without giving any information to the insurers 
 of what he had heard. Insurers brought this 
 bill to have the policy surrendered and it was 
 so decreed, but the insurers were ordered to 
 refund the premium less the costs of suit. De 
 Costa V. Scandret, 2 P. Wms., 170. 
 
 51. In her port of lading she was driven 
 on a rock, but got off without any apparent 
 damage. The master wrote to her owners, but 
 did not mention the accident. They received 
 his letter October 5th, and effected insurance 
 on her for the voyage October 25th. She ar- 
 rived at her port of discharge, and it was then 
 discovered that the accident had caused some 
 damage. Held, it was the master's duty to 
 
247 
 
 CONCEALMENT. 
 
 248, 
 
 What is not. 
 
 communicate the accident to her owners; that 
 the damage which she received was by impli- 
 cation excepted from the risk, and that there 
 could be no return premium. Gladstone v. 
 King, 1 Mau. & Sel., 35. 
 
 62. She sailed on the morning of Septem- 
 ber 16th, and the shipper advised by letter the 
 lading of the vessel, and in it stated "The 
 consignee may insure if he likes." About six 
 o'clock that evening the shipper heard that 
 she was lost On the 17th he knew the fact. 
 The post which took his letter of advice did 
 not leave till one o'clock P. M. of the 17th. 
 The insurance was made on the 21st. Held, 
 the shipper was the consignee's agent, that 
 he had full opportunity to send information of 
 the loss.before the mail departed, and it was 
 bis duty to do so; his negligence was the neg- 
 ligence of his principal. Fitsherbert d. Mather, 
 1 Term, 12. 
 
 53. The master of the Henrietta, after her ar- 
 rival at Greenock, metE., an intimate acquaint- 
 ance of A., and told him of the loss of A.'s 
 ship, who desired it might be concealed. The 
 same day B. held a conversation with the clerk 
 of A., in which B, asked the clerk whether 
 there was an insurance made upon A.'s ship, 
 or for her account A. subsequently instructed 
 the clerk to have insurance effected upon the 
 vessel ; but it did not appear that any of the 
 conversation which took place between B. 
 and the clerk was made known to A. Seld, 
 the policy was void, because the court was sat- 
 isfied if the Henrietta had not arrived in the 
 road off Greenock the day preceding and had 
 not brought intelligence that the ship was ta- 
 ken, the insurance would not have been made. 
 Stewart a. Bunlop, 4 Bro. P. C, 483, n. 
 
 54. " On goods from Lisbon to the Clyde, 
 premium 10 guineas per cent, to return 5 
 guineas per cent for convoy and arrival." 
 Shippers advised " She is a charming little 
 schooner, a prize going home for condemna- 
 tion, and Will be ready for sea in two or three 
 days, with or without convoy, for which she 
 shall not wait a single day; we have deter- 
 mined on running with the Nancy." Another 
 letter stated, " There being no convoy at pres- 
 ent appointed for Britain, the Nancy intends 
 to run it; however, should any partial convoy 
 offer, she will naturally take the benefit of it" 
 The consignees ordered insurance; quoted in 
 the order some of the language of the letters 
 mentioned, but said nothing about a prize 
 
 124 
 
 going home for condemnation, or that she was 
 a running ship. She was captured by a Span- 
 ish privateer. Held, the general understand- 
 ing of the sentence " to return five per cent, 
 for convoy and arrival " is that vessels so in- 
 sured would sail with convoy, though some 
 might possibly sail without; that the sentence 
 quoted led the insurer to believe that he was 
 taking the risk upon a vessel which might sail 
 with convoy, whereas the insured knew that 
 the risk was on a vessel which would not sail 
 with convoy, therefore insurers were dis, 
 charged. Beid v. Haroey, 4 Dow, 97. 
 
 (e) Of occupation. 
 
 55. On the life of the insured who died the 
 day after it was made. In the printed appli- 
 cation in answer to a question upon that sub- 
 ject, he stated he was a farmer. The con- 
 ditions of the policy provided that any untrue 
 or fraudulent allegation made in effecting the 
 insurance should render the policy void. 
 Held, if the insured was a slave taker by 
 occupation , the policy was void. Hartman v. 
 Keystone Ins. Go., 21 Penn. St., 466. 
 
 II. "What is not. 
 
 (a) Of the interest vnswred. 
 
 1. The mortgagor agreed with the mortga- 
 gee, that the latter should procure insurance, 
 and the former pay the premiums. The mort- 
 gagee procured insurance in his own name, 
 and said nothing about the agreement HetA, 
 no concealment Kemoehan, v. New York 
 Bowery Ins. Co., 17 N. Y., 428; s. c, 5 Dner, 1. 
 
 2. It is sufficient if the insured has an in- 
 surable interest; and it is not necessary that 
 the part owner of the vessel should disclose 
 to the insurer that he is part owner. Turner 
 v. Burrows, 5 Wend., 541 ; affirmed, 8 id., 144. 
 
 3. It is not necessary, unless questioned by 
 the insurer, to disclose the fact, that a person 
 is interested in the ship whose name does not 
 appear upon tlie custom house documents or 
 bill of sale. Bixhy v FranHin Ins. Co., 8 
 Pick., 86. 
 
 4. A failure to disclose to the insurer that 
 the buildings are upon land not owned by the 
 insured is no defense to the action, unless tlie 
 policy by its terms requires that fact to be 
 made known. Fletcher v. CommonweaUh Ins. 
 Co., 18 Pick., 419. 
 
249 
 
 CONCEALMENT. 
 
 250 
 
 What is not. 
 
 6. The master sailed her on shares, manned, 
 yictnaled and paid half her port charges, and 
 so continued until she was lost. jffeW, though 
 he was owner pro hac vice, it was not necessary 
 to disclose the fact to the insurer. JSuss v. 
 Waido Mut. Ira. Go., 53 Me., 187. 
 
 6. The assignee of a policy is not bound to 
 state incumbrances against the property when 
 it is ratified to him. Cumberland VaUey Mit- 
 tual Protection Co. v. Mitchell, 48 Penn. St., 
 374. 
 
 7. A part of the property insured had been 
 levied on by the insured for rent in arrear, 
 sold and bought in by him. Held, it was not 
 necessary to disclose these ^acts to the insurer. 
 Cdumbia Ins. Co. «. Cooper, 50 Penn. St., 831. 
 
 8. M. held a judgment against H., who set 
 off to the judgment creditor the- property de- 
 scribed, subject to two mortgages, $36 and $23. 
 He made application for insurance, stated that 
 it was his property, and mentioned the in- 
 cumbrances. He mortgaged the premises for 
 $175, and assigned the policy to secure it, to 
 which insurer consented. Held, the execution 
 creditor had the whole title and estate in him, 
 subject to the debtor's right to redeem ; that the 
 omission to state that his estate was subject to 
 that right was no defense to the action. Clapp 
 V. Union Mut. Ins. Co., 27 N. H., 143. 
 
 9. At the time the policy was made, certain 
 litigation in reference to the property in- 
 sured was pending between persons not par- 
 ties to the policy, but insured failed to disclose 
 the fact to insurers. Hdd, no defense to the 
 action, mil v. La Fayette Ins. Co., 2 Mich., 
 476. 
 
 10. The insured was the chattel mortgagee 
 of the property described in the policy; but 
 the nature of his interest was not disclosed. 
 The policy provided "That the company 
 would not be liable for loss or damage to prop- 
 erty owned by any other party, unless the in- 
 terest of such party he stated on this policy." 
 Held, it was unnecessary for insured to state 
 the nature of his interest in the property in- 
 sured. Norwich Fire Int. Co. v. Boomer, 52 
 111., 443. 
 
 11. Insured did not disclose that there was 
 a mortgage on the property. Held, it was not 
 material to the risk, hence a disclosure of it 
 was not necessary. Delahy v. Memphis Ins. Co., 
 8 Humph., 684. 
 
 18. Two separate policies on vessel and 
 cargo, from Charleston to Marseilles, thence 
 
 to Havana. She was laden at Havana but 
 touched at Charleston. It appeared by the 
 manifest that the goods were shipped in the 
 names of Spaniards. Spain and her colonies 
 were at war. Setd, a foilure to disclose these 
 facts vitiated the policy. Union Ins. Co. v. 
 Sttmey, Harper, 235; s. c, 3 McCord, 387. 
 But this case was tried the third time, when 
 the former decisions were overruled, and the 
 plaintiif was permitted to recover, b. c, 4 
 McCord, 511. 
 
 (b) Of time of sailing. 
 
 13. Ship sailed from Boston November 19, 
 1831. She was insured March 13, 1833, at and 
 from Boston to Smyrna, and at and from 
 tlience back to Boston ; she was never heard 
 of afterwards ; nor was she out of time when 
 the insurance was effected. Ten days after 
 she left Boston a severe storm occurred there ; 
 and one underwriter refused to take a risk on 
 her on being told she had sailed before the 
 atorm. Held, the time of her sailing was not 
 material to the risk, and the failure to com- 
 municate it to the insurer did not affect the 
 policy. Fiske v. New Sngland Ins. Co., 15 
 Pick., 310. . 
 
 14. The broker knew that the ship had 
 sailed on her voyage, but did not communi- 
 cate the fact to the insurer. Held, as a gen- 
 eral rule it was not necessary; but there 
 might be circumstances which would render 
 it material, as if she were a missing ship, or 
 out of time. Foley v. Moline, 5 Taunt., 430; s. 
 c.,1 Marshy 117. 
 
 15. On ship at and from her port of dis- 
 charge, lost or not lost. She had sailed five 
 days before the policy was made, of which in- 
 sured had notice. Held, no concealment. 
 Fort V. Lee, 3 Taunt., 381. 
 
 (c) As to information of loss, damr- 
 age, or danger apprehended. 
 
 16. The policy was made after a loss had 
 happened, at a time when it was unknown to 
 the insured. The master took measures to 
 prevent the loss being known, for the avowed 
 purpose of enabling the owner to effect in- 
 surance, and in consequence, information of 
 the loss had not reached the parties at the 
 time the policy was made. Hdd, the insured, 
 having acted in good faith, was not to suffer 
 
 US 
 
251 
 
 CONCEALMENT. 
 
 252 
 
 What is not. 
 
 for the fraudulent conduct of the master. Af- 
 firming s. c, 4 Mason, 74. General Interest 
 Im. Go. V. Rugglei, 12 Wheat., 408. 
 
 1 7. The master was instructed to go to 
 Hamburg, if he could obtain permission from 
 tlie cruising vessel at the entrance of the 
 Eyder, but not to attempt it unless he was 
 well assured that the blockade of the Elbe 
 was raised. Held, if the instructions to the 
 master were contrary to the rules estab- 
 lished by the English courts of admiralty, 
 they should have been communicated to the 
 insurers, notwithstanding such rules were not 
 authorized by the law of nations ; but it was 
 also lield, these instructions were not contrary 
 to those rules. Sperry v. Delaware In». Go., 2 
 Wash. C. C, 243. 
 
 18. Pour policies, on ship, freight, cargo; 
 the fourth on additional cargo, consisting 
 principally of goods brought by a Spaniard 
 from Cadiz to New York, and entered for ex- 
 portation for the benefit of drawback. They 
 were sold by the Spaniard, and the purchaser 
 sold them to insured, which was not disclosed 
 to insurer. Held, if a taint attached to a part 
 of the cargo, it pervaded the whole; but before 
 the concealment could avoid the policy it 
 must appear to have been material to the risk, 
 and if known would have increased the pre- 
 mium ; that we are all very wise in finding 
 out causes which have led to particular re- 
 sults, after the results are seen, and are apt to 
 give weight and consequence to circum- 
 stances which would have passed unnoticed, 
 but for the results ; hence, if the insured pur- 
 chased the goods bona fide, that made them 
 neutral and they were not liable to condem- 
 nation. Marshall v. Union Ini. Go., 2 Wash. 
 C. C, 357. 
 
 19. Loss by stranding, March 26, 2 A. M., 
 about ninety miles from New York. Two part 
 owners effected insurance for themselves, and 
 the other part owner (the master), April 9th, fol- 
 lowing. Those who effected the insurance 
 knew nothing of the loss. The master was in- 
 j ured so that he could not attend to business for 
 two or three days after it occurred. Held, there 
 was not anything like gross negligence in not 
 communicating with his partuers at such a 
 crisis ■which would look like design or justify 
 the inference of fraud ; that the policy was 
 valid. Andrews v. Marine Ins. Go., 9 Johns., 82. 
 20. Insured told the company's agent thdt 
 the premises had been on fire two or three 
 136 
 
 times, and he could not account for the 
 causes ; the agent failed to communicate these 
 facts to the insurer. The asent was author- 
 ized to accept applications and receive pre- 
 miums, but was not empowered to issue poll- 
 cies. Held, it was suflScient if insured com- 
 municated to the agent all the facts in respect 
 to the fires that had been suppressed and his 
 apprehensions in regard to them, and he was 
 not chargeable with the agent's failure to 
 communicate them to the insurer. Bebee v. 
 Hartford Mutual Fire Ins. Co., 25 Conn., 51. 
 
 21. Policy effected April 20th. Vessel lost 
 on the 17th. The master had addressed a let- 
 ter to the plaintiff, posted it at Richmond on 
 tliat day, which must have arrived at Balti- 
 more post office April 20th, between 3 and 4 
 o'clock, and if called for, would have been 
 delivered at 7 o'clock of that morning. In- 
 sured resided at Baltimore, but he did not 
 call at the post office for letters between the 
 19lh and the 24th. Hdd, he was under no 
 obligation to go to the post office, nor had he 
 any cause to expect information, in the ab- 
 sence of proof upon that point; nor was he 
 bound to use all accessible means of informa- 
 tion to ascertain the condition of the prop- 
 erty up to the time of making the insurance. 
 Neptune Ins. Go. v. Sobinson, 11 G. & J., 256. 
 
 22. The property insured was at West Point, 
 Mississippi. It appeared, that one of the per- 
 sons in interest, who had tlie custody of the 
 property, was obnoxious to the people of that 
 vicinity. Held, it was not necessary to dis- 
 close the popularity or unpopularity of in- 
 sured; for insurers were presumed to know 
 of the disturbed condition of that part of the 
 country. HeitA «. Globe Ins. Co., 52 111., 518. 
 
 23. The court instructed, if there was any 
 danger from incendiarism, fairly and reason- 
 ably to be apprehended, known to the insured, 
 it was their duty to inform insurer's agent of 
 it, and a failure to do so would relieve the 
 insurer; but the court added, "The danger 
 must be really and substantially one that neces- 
 sarily enhanced the risk, and one which a man 
 of ordinary prudence and caution wouldregard, 
 not mere idle talk or reports." Held, no error. 
 McBride v. Republic Fire Ins. Co., 30 Wis., 562. 
 
 24. The master wrote his owners, that the 
 merchants at Malaga would not ship on Eng- 
 lish ships unless they had a convoy; that they 
 were shipping on Spanish ships; that there 
 was great danger in going from Gibraltar, the 
 
253 
 
 CONCEALMENT, 
 
 254 
 
 What is not. 
 
 place where the letter was written, to Malaga. 
 Insurance wiis made for £600 at 25 gs., on ship 
 fix^m Gibraltar to Malaga, thence to Leith, 
 with liberty to call at Gibraltar. The policy 
 was in the common form, but it stated : " La.st 
 advices were firom Gibraltar of September 28, 
 1778; that she had arrived there the day be- 
 fore and had a cargo to discliarge," In the 
 evening of the day in which the insurance 
 was effected at Glasgow, November 20, 1778, 
 the insured received intelligence from the 
 master, advising of her sailing from Gibraltar, 
 and that she was captured off Malaga by a 
 French privateer, October 9th, and carried 
 into Almeira, which intelligence was imme- 
 diately communicated to the insurers, who 
 declined to recognize the claim on the ground, 
 that the master's letter, which was written at 
 Gibraltar, onght to have been communicated 
 to them. Held, it was not necessary for the 
 insured to communicate the statement;^ made 
 in the letter. Beversing the interlocutor of 
 the court of sessions and affirming the decree 
 of tlie judge admiral. Thompson v. Buchanan, 
 4 Bio. P. C, 483. 
 
 25. Policy made May 9, 1760, against "The 
 loss of Fort Marlborough, from being de- 
 stroyed by, taken by, or surrendered unto any 
 European enemy, between October 1, 1759, 
 and Oct. 1, 1760." It was taken by the French 
 within the year. The insured did not com- 
 municate to the insurer an anticipated attack 
 by the French, nor the insufficiency of the 
 furt to resist; but it seems both these circum- 
 stances were commonly known among all the 
 merchants of London. Held, no concealment 
 Carter v. Boehm,Z Burr., 1905; 1 W. HI., 593. 
 
 26. The owner of a ship received a letter 
 from her master, written on her arrival at the 
 foreign port showing thai she must remain 
 there for repairs beyond the time necessary to 
 take in her cargo. Heid, not necessary to 
 communicate that fact to the insurer unless 
 the information was particularly called for. 
 BedcitMt o. SifdOotham, 1 Camp., 116. 
 
 27. The insured is not bound to communi- 
 cite to the insurer sensations and apprehen- 
 sions, but he is bound to communicate mate- 
 rial facts. BM r. Bell, 8 Camp., 475. 
 
 2S. A letter written by tlie commander con- 
 taining information as to the loss of the 
 master and several of the crew, showing that 
 the ship was short handed, and that it was im- 
 possible to procure seamen. Another letter, 
 
 referring to the former, written about two 
 monUis after, stated that he expected to sail at 
 tlie end of the next month. The last letter 
 was exhibited to the insurers. Held, tliere 
 was no concealment, because the second re- 
 ferred to the first, and the insurers ought to 
 have called for it Iceland v. Glover, 7 East, 
 457; 6 Esp., 14; 3 Smith, 426. 
 
 29. Two prizes, ship and brig, were taken 
 off the coast of Ireland to be carried into 
 Liverpool. The owners ordered insurance 
 on them in London. A part owner sent an 
 express to his broker, mentioning the arrival 
 of one, and expressed great fear about the 
 otber, and ordered further insurance on her. 
 He inclosed a letter to be sent to the insurers, 
 dated Saturday. The broker received the ex- 
 press OB Tuesday, and had her insured on 
 Wednesday. The nonarrival of Sunday night 
 could not have been known in London till 
 Wednesday noon, alter tie plaintiff had sub- 
 scribed the policy. On Tuesday the broker 
 entered in Lloyd's books the arrival of the 
 brig and the non-arrival of the otlier. But the 
 broker did not communicate to the insurers 
 tl\e information he had received. Held, tlie 
 policy was not void, and that there conld be 
 DO return of premium. Court v. Martineau, 3 
 Bong., 161. 
 
 .HO. The insured had received a letter from 
 the master, stating that he had been obliged 
 to have a survey of the ship at Trinidad, on 
 account of her bad character. The survey 
 ■sccompanied the letter, but it gave the ship a 
 good character. Hdd, it was not necessary to 
 communicate the contents of the master's 
 letter or the fact of the survey to the in- 
 surer. Haywood v. Sodgere, 4 East, 590; 1 
 Smith, 298. 
 
 31. Insurers agreed to accept the risk, 
 March 11th. Insured demanded the policy 
 (m the 17th. She was lost on the 16th, of 
 which insured had notice, but said nothing 
 about it when he demanded the policy. Held, 
 the contract was complete when tlie risk was 
 accepted; that a material fact coming to the 
 knowledge of the insured between that date 
 and the date of the policy, need not be com- 
 municated. Lishman r. Jforthern Marine /fi«. 
 Co., 8 L. R C. P., 216; 42 L. J. C. P., 108; 21 
 W. R, 386; 28 L. T. (N. S.), 165; affirmed, 10 
 L. R C. P., 179; OoTj/ 0. Patton,"', L. R Q. B., 
 804; 30 W. R, 364; 26 L. T. (N. S.), 161; 41 
 L. J. Q. B., 195 n. ; affirmed, 9 L. R Q. B., 577 ; 
 
 127 
 
255 
 
 CONCEALMENT. 
 
 256 
 
 What is not. 
 
 43 L. J. Q. B., 181; 33 W. R., 46; 30 L. T. (N. 
 S.;, 758. 
 
 32. The broker received instructions to in- 
 sure by letter, dated Sunderland, October 18th, 
 and effected the policy October 15th, but did 
 not complete it till the 17th. He left his 
 house about 10 o'clock, taking the policy with 
 him, prepared for the underwriters to execute, 
 went to the Royal Exchange, and the insurer 
 signed it there about 11 o'clock. He then 
 proceeded to the Coal Exchange, at which his 
 business letters were usually directed. When 
 he arrived there he found a letter, which had 
 arrived by tliat morning's post, dated the 15th, 
 announcing tlie sliip's loss. Held, it was a 
 question for the jury to determine, whetlier 
 the broker had a right to iiresume he had 
 possession of all the information on which he 
 was to eflfect the policy, and the jury having 
 found that fact for the insured, the insurer 
 must be held liable for the loss. Wake v. 
 Mty, 4 Taunt, 493. 
 
 33. While going into Fort Moraut, she 
 touched and sustained damage. The master 
 wrote his owners tliat lie expected to make 
 repairs and be ready to sail by the 25th of 
 July. But tlie fact of the damage was not 
 reported to underwriters. Beld,, no conceal- 
 ment. Adama ■». Murray/, Faculty Deo., 1801 
 to 1807, p. 360. 
 
 34. She had suffered damage before the 
 policy was made, but nothing was said about 
 it when the application for the policy was 
 made. Held, no concealment. Smith v. Bis- 
 aett. Faculty Dec, 1808 to 1810, p. 617. 
 
 35. Master wrote: "Timber is scarce, and 
 cargo not all ready, but I will be as expeditious 
 as possible ; other ships are oflering to wait 
 six weeks for their cargoes. Will suflFer some 
 detention from being obliged to lie beyond the 
 bar, in order to complete my cargo." This was 
 not communicated to insurers. Held, not a 
 concealment. Lambe v. Smith, Faculty Dec, 
 1814 to 1815, p. 220. 
 
 36. The policy was effected at Leith, be- 
 tween 12 and 1 o'clock, December 5th. Let- 
 ters received at Leith at 11 A. M., contained 
 intelligence of her loss at the mouth of the 
 Tees, on the day preceding — one of them, ad- 
 dressed to a person who, immediately on re- 
 ceiving it, sent word to the broker tliat he 
 wished to see him ; but no meeting took place 
 between them until between 2 aud 3 P. M. ; 
 the other was addressed to the broker, but it 
 
 128 
 
 remained in the post oflSce till 4 P. M., lie 
 failing to call for it. Held, not suficient to 
 affect the policy unless the delay in sending 
 to the post ofSce for the letter was wrongful. 
 Stotie V. Aberdeen, Mut. Ins. Go., 11 C. C. S., 
 1041. 
 
 (d) As to matters with which insurers 
 are jpresumed, to he acqwivnted. 
 
 37. " On ship to the port of Sisal, liberty to 
 proceed t» one other port in that province not 
 southward of," etc. Sisal, Silam and other 
 places on that coast were merely open roads; 
 and vessels had to lie at anchor some miles 
 from shore, to land and take in cargoes by the 
 aid of boats. Held, insured was not boimd to 
 inform the insurer of these facts; that the 
 insurer was presumed to know them, and the 
 word port in the policy must betaken in refer, 
 ence to the subject matter, and though it 
 usually meant a harbor, yet when applied to 
 Sisal and other trading places on that coast, it 
 meant an open roadstead. lie Longumere c. 
 New York Fire Int. Co., 10 Johns., 120; id., 
 126. 
 
 38. Insurers directed a policy on the same 
 property to be canceled because of a rumored 
 attempt to bum the buildings, and soon after- 
 wards A. effected this insurance. Held, he was 
 not bound to disclose the attempt to burn the 
 premises, because the insurers knew of it. 
 Fish v. Liverpool, London and Globe Ins. Co., 
 44 N. T., 538. 
 
 39. Silence of the insured as to facts already 
 known to the insurer, no inquiry being made 
 on the subject, though material to the risk, 
 does not affect tlie policy. Oreen v. Merchants 
 Ins. Go., 10 Pick., 402. 
 
 40. The insured are not bound to commu- 
 nicate what the insurers are bound to know; 
 and they are bound to know of a usage or cus- 
 tom which prevails at the place where the 
 policy attaches, whether at home or abroad. 
 Norris e. Insurance Company of North Amer- 
 ica, 8 Yeates, 84. 
 
 41. The act of incorporation made it the 
 duty of the company to appoint a surveyor to 
 " examine, survey and take the correct descriii- 
 tion and dimensions of all property to be in- 
 sured, to set a valuation thereon, to take into 
 consideration the exposure and liability of the 
 property to damage by fire, to fix the pre- 
 mium and determine the oouditions of the 
 
257 
 
 (X)NCEALMENT. 
 
 258 
 
 What IS aol. 
 
 insurance," Held, it -was the company's duty 
 to ascertain all facts material to the risk; that 
 the insured were not to suffer from the com- 
 pany's failure to do so, and the omission of the 
 insured to mention that there was a corn kiln 
 attached to the property did not avoid the 
 policy, though the premium on that account 
 would have heen much higher. Satterthwaite 
 V. Mutual Ben^ieM Z/w. Aat., 14 Penn. St., 393. 
 
 42. She was built on what is known as the 
 hull of a keel-boat. That fact was not dis- 
 closed to the insurer, but the evidence showed 
 that boats of this class were not unfrequently 
 constructed in this manner. Held, insured 
 had the right to suppose that the insurers 
 were acquainted with tlie manner of con- 
 strucUng boats of this class. Lexington Ins. 
 Co. V. Pacer, 16 Ohio, 324. 
 
 43. One of the walls settled, and it was 
 necessary to replace it temporarily with wood. 
 The insured stated the buUding was in good 
 repair; but the agent knew that the wall was 
 temporarily replaced with ■'wood. Held, not 
 such a misrepresentation as would avoid the 
 policy. OerhaVier v. North British and Mer- 
 cantile Ins. Co., 7 Xev., 174. 
 
 44. The question was whether the agree- 
 ment to detain the ship in India for a year 
 longer than the time provided for by the char- 
 ter party, ought to have been disclosed to in- 
 surers. It appeared th at the charter party was 
 in the printed form and of very long standing, 
 and that to prolong the ship's stay for a year 
 was very common ; that the words of the pol- 
 icy, without limitation of time or place, were 
 adapted to that usage. fleW, the usage was to 
 be treated as though it were expressly insexted 
 in the policy. Salvadar v. Hopkins, 3 Burr., 
 1707. 
 
 45. Intelligence in Lloyd's Lists need not 
 be given to the insurer; because it was a mat- 
 ter that by fair inquiry and due diligence he 
 might have learned, from ordinary sources of 
 information. latere e. Woodhovse, Holt N. 
 P,572. 
 
 46. Concealment cannot be established, un- 
 less the fact concealed was known to the in- 
 sured and not known to the insurer. That in 
 order to establish knowledge of the fact 
 against the insurer, it is not essential that he 
 should have had actual knowledge; it is 
 enough if he had the means of knowing the 
 fact, and it was within his jrawer to ascertain 
 it Then if he did not choose to ascertain it, 
 
 9 
 
 the fact was within his knowledge. Foley v. 
 T<aor, 3 F. & F., 668. 
 
 47. "To be void if the assured shall omit 
 to communicate any matter material to be 
 made known to the insurer." Held, this 
 meant matter not only material but also un- 
 known to the insurers; that it did not apply 
 to that which might be presumed was known 
 to them or their agents. Pim «. Lewis, 2 F. & 
 F., 778. 
 
 48. She was registered at Lloyd's as A 1, 
 for seven years, but in order to retain her class, 
 it was necessary for her to be examined in the 
 fourth year, and if the examination should be 
 satisfactory, then she would be entitled to be 
 initialed in the register H F; if not satisfac- 
 tory, to be degraded ; and if the owner should 
 refuse to permit examination, or it was not 
 made from any other cause, her name should 
 be stricken out of the register. In October, 
 1869, her owner declined to have her exam- 
 ined, and during the same month, application 
 was made to the defendants to insure her for 
 twelve montlis. They examined the register, 
 directed applicant's attention to her name, in- 
 quired whether that was the vessel he wanted 
 to insure, to which he replied, yes. A rate 
 was then given, based upon the fact that she 
 was A 1, and about two weeks thereafter Uie 
 risk was accepted upon the rate named. The 
 day following her name was struck out of 
 Lloyd's Register, of which plaintiff had no- 
 tice the following day, and about one week 
 tliereafier, the defendant's copy of the register 
 was amended by striking her name from it 
 About five weeks thereafter she was lost. 
 Held, the insurer ought to have known that 
 her continuance in the class depended on 
 whether the usual survey had been made, and 
 that knowledge ought to have put him upon 
 inquiry as to whether she had been or was 
 about to be surveyed. The fact that insured 
 had determined not to continue her on the 
 register and had declined U> keep her regis- 
 tered was not material. Gandy v. Adelaide 
 Mut. Ins. Co., 6 L. R. Q. B., 746; s. c, 40 L. J. 
 Q. B., 239. 
 
 49. The master wrote owners that he had 
 doubts about there being water enough on the 
 bar to let her out Insurers procured the pol- 
 icy, but said nothing about the master's 
 doubts. Held, no concealment, for insurers 
 were presumed to know the depth of water in 
 the harbor; and insured were not bound to 
 
 129 
 
259 
 
 CONCEALMENT, 
 
 260 
 
 What is not. 
 
 communicate anything which insurers were 
 presumed to know. Patterson v. Duguid, 
 Bell's Ses. Cas., 281. 
 
 (e) Of express or impUed warranties. 
 
 50. If the insured is not asked about the 
 age of the vessel, a failure to disclose the fact 
 that she is old is no concealment. Piipleston 
 V. Kitchen, 3 Wash. C. C, 138. 
 
 51. The policy warranted against J)arratTy, 
 and the law by implication creates a warran- 
 ty against unseaworthiness. Seld, the in- 
 sured was not bound to disclose that the res- 
 sel is unseaworthy — nor circumstances which 
 would show that the master might commit 
 barratry — for these were risks with which 
 the insurer is not concerned. Walden v. JSfeu) 
 York Fire Ins. Co., 13 Johns., 128. 
 
 52. The insured is not bound to communi- 
 cate to the insurer anything with respect to a 
 fact in regard to which there is an expressed 
 or implied warranty. DeWolf v. New York 
 Firemen Ins. Go., 20 Johns., 214. 
 
 53. The warranty of seaworthiness is im- 
 plied, hence the insured were not required to 
 disclose any fact pertaining to her seaworthi- 
 ness. Silloway v. Neptune Ins. Co., 12 Gray, 
 73. 
 
 54. The agent of insured was asked, "What 
 is the condition of the Orb, as to seaworthi- 
 ness?" Hdd, there was no obligation resting 
 upon insured or his agents to disclose the fact 
 thjt insured would not load her with lumber, 
 unless he could get it insured, nor was it 
 necessary for them to disclose the fact thit 
 the marine reports at Baltimore had set her 
 down as unseaworthy (citing Kuggles t. Gen- 
 eral Interest Ins. Co., 4 Mason, 74 ; 3 Kent, 280). 
 Augusta Ins. Co. v. Alibott, 12 Md., 348. 
 
 (f) As to loading. 
 
 55. The insured on freight need not dis- 
 close to insurer that there is a stipulation in 
 the charter party that the vessel shall carry- 
 timber under, and on deck. Adams v. War- 
 ren Ins. Co., 22 Pick., 163. 
 
 56. The insured made a general order for 
 insurance on the vessel. She took a cargo of 
 live stock for the voyage, of which nothing 
 was said to insurers. The defendant offered 
 evidence tending to prove that an order for in- 
 surance on cargo would not cover Mve stock, 
 
 130 
 
 and prayed the court to instruct, " That if the 
 jury should find that according to mercantile 
 usage and understanding a general order for 
 insurance on vessel was not considered as 
 comprehending a vessel employed in trans- 
 porting live stock or animals, the insured was 
 not entitled to recover." Held, no error in re- 
 jecting the prayer : to have granted it would 
 have authorized the jury to find a fact upon 
 which there was no evidence in the case. 
 Evidence that an order for cargo would not, 
 according to custom, cover live stock, is 
 not evidence that a general policy on vessel 
 was void, because the underwriters were not 
 apprised of her owner's intention to employ 
 her in the transportation of live stock. As a 
 general rule, it is not the duty of him who 
 seeks insurance on his vessel to disclose to the 
 underwriters the nature or condition of the 
 cargo which he intends to transport. If the 
 underwriters desire information on that sub- 
 ject, it is their duty to ask for it. Chesapeake 
 Ins. Co. V. Allegro, 2 G. & J., 164. 
 
 57. Oil of vitriol stowed on deck fore and 
 aft. Some were thrown overboard, ffeld, un- 
 necessary to show that insurers were told that 
 they would be stowed on deck. De Costa v. 
 Edmunds, 3 Chitty, 227; 4 Camp., 142. 
 
 58. The defendants pleaded that the fact 
 that she was to carry a deckload and did cany 
 it was not disclosed. HeUd, not a conceal- 
 ment of a material act. Clarkson «. Totmy, 
 22 L. T. (N. 8.), 41. 
 
 (g) Of the refusal of other insurers to 
 accept the risk. 
 
 59. Insured had made application to an in- 
 surance agent at Baltimore, for a policy upou 
 his life, which was forwarded to New York 
 and returned to the agent. The proof showed 
 that the agent informed insured that his com- 
 pany had some rules about the relative height 
 and weight of persons, and advised insured to 
 witlidraw the application, because his weight 
 did not correspond to his height by forty 
 pounds, to which he assented, but he did not 
 know and had no means of knowing that the 
 application had been forwarded to New York. 
 In answer to a question propounded by the 
 insurers upon another application to them, he 
 said that no company had declined to insure 
 his life. Held, the court was right in refusing 
 to instruct the jury that a failure to disclose 
 
261 
 
 CONCEALMENT. 
 
 262 
 
 What is not material — Questions for the jury exclusively. 
 
 the facts connected with the application which 
 was withdrawn defeated the plaintifiT's right 
 to recover, because the proper question for the 
 jury to determine in respect to this subject 
 was whether any company had declined to 
 insure the life of the insured. - Mutual Benefit 
 Life Ins. Oo. f>. Wise, 34 Md., 582. 
 
 III. "What is not material. 
 
 1. It is not necessary to disclose to the in- 
 surer how long a ship has been in port prior 
 to making the insurance. Ketnble o. Bourne, 
 1 Gaines, 75. 
 
 2. Insured need not disclose to the insurer 
 the time that he immigrated, nor the date of 
 his nattiralization. Duguet «. Bhinelander, 3 
 Johns. C, 476. 
 
 3. The ship was foreign built, of which the 
 insured was not informed. Beld, no conceal- 
 ment Xowyc. 2)u#, 2B.&P., 203. 
 
 IV. Questions pob the juet excltt- 
 
 SIVELT. 
 
 1. The insured was the subject of a bellig- 
 erent, but had resided four years in the United 
 States. Evidence was given tending to show 
 that a belligerent not named was interested in 
 the cargo. Held, whether it was material to 
 the risk to inform the insurer of the belliger- 
 ent's interest was a subject for the considera- 
 tion of the jury. ilaryXand Ins. Co. e. Buden, 
 6 Cranch, 338. 
 
 8. No questions were asked or propounded 
 in respect of the risk; but it appeared tbat 
 carpenters were engaged making repairs. 
 Held, it was a question for the jury to deter- 
 mine whether there was any intent to fraudu- 
 lently conceal that fact. People v. The Liter- 
 pool, London £ GUM Int. Co., 3 N. Y. (S. C), 
 268. 
 
 3. Insured did not disclose the nature of his 
 interest, which was that of a mortgagee. The 
 policy was written, " On his woolen manufac- 
 tory and machinery therein." Held, a ques- 
 tion for the jury and not for the court, to de- 
 termine whether this failure was material. 
 Sussex County In*. Co. r. Woodruff, 26 N. J., 
 641. 
 
 4. She sailed from Newbem, North Caro- 
 lina, for Curacoa and Jamaica, but sold her 
 cargo at Curacoa, and pat into Aux Cayes, 
 without going to Jamaica, where the plaintiffs' 
 
 agent shipped on her a lot of wine, upon 
 which plaintiffs effected this insurance. The 
 French authorities had, by proclamation, 
 about thiiee months prior, prohibited American 
 vessels from entering any port in the British 
 West Indies, and subsequently before she 
 sailed, by another proclamation, declared all 
 vessels of neutral powers destined to tlie Brit- 
 ish Windward or Lcewai-d Islands, in posses- 
 sion of British or emigrants, subject to capture 
 or condemnation. Held, whetlier insured con- 
 cealed from the insurers notice of the proclam- 
 ations, or knowledge that she was destined for 
 one of the prohibited islands, was a question 
 for the jury. Marsh v. Muir, 1 Brev., 134. 
 
 5. C, one of the insured shipped, on the steam- 
 er Belfast, at the port of New Orleans for Mem- 
 phis, a stock of goods, and took passage in her. 
 Four days tliereafter, 150 miles below Mem- 
 phis, she ran aground and so remained until 
 the day after, when C embarked in another 
 vessel and arrived at Memphis the following 
 day, from which place he telegraphed to his 
 firm at St. Louis: "Insure $7,000 New Or- 
 leans to Memphis." An indorsement was 
 then made upon their open policy in accord- 
 ance with the order. Held, a question of fact 
 for tlie jury to determine whether the failure 
 to disclose the vessel's condition was material 
 or not. Boaenheim «. American Ins. Co., 83 Mo., 
 230. 
 
 6. Stipulated: "If any person shall insure 
 his or their buildings or goods, and shall cause 
 the same to be described in the policy, oth- 
 erwise than as they really are, so as the same 
 be charged ut a lower premium than is here- 
 in proposed, such insurance shall be of no 
 force." The interest of insured was that of 
 material men, for lumber supplied the builder. 
 Held, whether the failure to disclose the nature 
 of their interest was material was a question 
 for Uie jury. Franklin Fire Ins. Go. o. Goates, 
 14 Md., 285. 
 
 7. Tlie plaintiff purchased and refitted the 
 confederate steamer Georgia. He effected in- 
 surance on her in Liverpool, and wrote to his 
 brokers in London to procure another policy. 
 She was insured by the name of the Georgia, 
 but the fact that she had been " The confeder- 
 ate steamer Georgia," was not disclosed. She 
 was captured by a United States cruiser. Held, 
 if the underwriter knew the fact, it was not 
 necessary to disclose it. The court left it to 
 the jury to find whether the insurer had the 
 
 131 
 
263 
 
 CONCEALMENT. 
 
 264 
 
 Generally. 
 
 means of knowledge in liis possession. Ver- 
 dict for the defendant. Bates v. Heaitt, 4 F. 
 & F., 1023 ; 8. c, 2 L. R. Q. B., 595 ; 15 W. R., 
 1172; 36 L.J. Q.B., 282. 
 
 8. Before the policy was made, insured re- 
 ceived from his captain a letter announcing 
 the day he intended to sail. Held, it was a 
 question for the jury to say whether the letter 
 was material, and if so, whether the disclosure 
 of it was rendered unnecessary by information 
 announced in Lloyd's List nine days before 
 the policy was effected. Elton v. Larkins, 8 
 Bing., 198; 5 C. & P., 86 and 385; 1 M. & S., 
 323. 
 
 9. The policy required a declaration of the 
 state of the health of the insured, and it was to 
 be valid if the statement were free from all 
 reservation and misrepresentation. The de- 
 claration described the insured as resident at 
 Fisherton Anger. She was in fact a prisoner 
 in the county jail there. Held, a-question of 
 fact for the jury to determine whether the im- 
 prisonment was material. Sugtienin -o. Bay- 
 ley, 6 Taunt., 186. 
 
 10. At and from Barbados to Liverpool. A 
 letter was exhibited to the insurers stating, 
 "The Cumberland we expect will have taken 
 her departure from Barbados November 26. 
 The Barton sailed on the 24th, and arrived at 
 XiVerpool, Sunday last, January 5, but she is 
 coppered, and a remarkably fleet vessel." In- 
 sured knew that another vessel, the Agreeable, 
 a fast sailing coppered vessel, which left Bar- 
 bados November 29, had arrived at Liverpool 
 January 5, but nothing was said of that fact. 
 Held, it was for the jury to say how far the 
 failure to mention this circumstance was ma- 
 terial. They found that it was not material. 
 Littledale v. Dixon, 4 B. & P., 151. 
 
 1 1. B. Co. delivered to M. Co. their applica- 
 tion for reinsurance upon the life of a person 
 insured by B. Co. All the questions touching 
 his health, past and present, were unanswered, 
 but reference as to them was made to the 
 original application delivered by the person 
 insured to the B. Co.. copies of which were 
 annexed to the application made by B. Co. 
 The policy delivered by the M. Co. recited: 
 " That it should be void if the declaration made 
 by the insured was untrue." The health of 
 the person insured had materially changed for 
 the worse, but this was unknown to the B. Co. 
 when the application for reinsurance was 
 made. Held, the verdict should be for the de- 
 
 132 
 
 fendauts if the jury believed that the intention 
 of the parties was that the person insured was 
 in good health at the time the reinsurance was 
 made ; and, that it should be for the plaintiff 
 if the parties intended that he was in good 
 health at the time the original policy was 
 made. Foster v. Mentor Life Ass. Co., 3 El. & 
 Bl., 48; 23 L. J. Q. B., 145. 
 
 1 2. The day before the policy was made, an 
 application was presented to another com- 
 pany for insurance upon this vessel, which was 
 declined because she appeared overdue by 
 Lloyd's List. She was announced as lost in 
 the Morning Chronicle of the 14th. This ap- 
 plication being made at Dundee on the same 
 day: Held, a question of fact whether failing 
 to disclose matter contained in Lloyd's List 
 was material. Symers v. Glasgow Ins. Co., 19 
 Scot. Jur., 49. 
 
 1 3. Plaintiff stated in his application that 
 the building was owned by himself and P., 
 and used by them as a mill. It was in pos- 
 session of a tenant under a lease for five years, 
 and mortgaged for its full value. A line of 
 railway had been laid tmt through the land, 
 for which plaintiff had claimed damages, al- 
 leging that it rendered the mill of no value. 
 None of these facts were disclosed to insurers. 
 Held, a question for the jury whetber the non- 
 disclosure was material, there being nothing 
 in the policy requiring such matters to be dis- 
 closed. Perkins v. Equitable Ins. Co., 4 Allen 
 (N. B.), 562. 
 
 V. Geneeally. 
 
 1 . The agent of the carrier had nirtice of 
 the loss at Cincinnati, August 2d. This insur- 
 ance was made by the consignee in New York 
 on the 8th. Held, notice of the loss to the 
 agent of the carrier was not notice to the in- 
 sured. Clement t. PTimnix Ins. Co., 6 Blatch., 
 481. 
 
 2. If there is no warranty, but a suppression 
 of facts is relied upon to defeat the action, 
 that which is suppressed must have been ma- 
 terial to the risk, and the question of its ma- 
 teriality should be left to the jury. Gates s. 
 Madison County Mut. Ins. Co., 2 N. T., 43. 
 
 3. Everything material to the risk must be 
 disclosed, and any failure in that respect, 
 though it were the result of a mistake, avoids 
 the policy. Bowery Ins. Co. v. New York Fire 
 Ins. Co., 17 Wend., 359; Walden v. Louisiana 
 Ins. Co., 12 La. (O. S.), 134. 
 
265 
 
 CONDEMNED FOR BEING UNSOUND OR ROTTEN. 
 
 266 
 
 Survey. 
 
 4. The doctrine of concealment is not ap- 
 plied to fire insurance to the same extent that 
 it is to marine. The insured in a fire policy 
 is not bound to communicate every fact mate- 
 rial to the risk. He must not misrepresent or 
 designedly conceal any material fact; he 
 must answer in good faith aU questions ; and, 
 unless the fact not communicated could not, 
 with reasonable diligence, be discovered by 
 the insurer, or anticipated as a foundation for 
 a specific inquiry, it is not a concealment. 
 Hartford Protection Ins. Go. v. ffarmer. 2 Ohio 
 St, 453. 
 
 5. Whether a fact concealed was material, 
 is to be ascertained by determining whether a 
 knowledge of it would have enhanced the pre- 
 mium. Boggs v. American Int. Co., 30 Mo., 63. 
 
 6. The insured must communicate to the 
 insurer every fact calculated to influence in- 
 surer in fixing the value of the subject in- 
 sured. Protection Ins. Co. e. Hall, 15 B. Mon., 
 411. 
 
 7. Neither the owner nor lessee of premises 
 insured is bound to disclose the names or pur- 
 suits of the tenants or subtenants, nor is the 
 insured on goods bound to disclose the mnn- 
 ner in which the building is occupied, unless 
 required so to do. Lyon o. Commercial Ins. 
 Co., a Rob. (La.), 266. 
 
 8. Rumors and reports which have gath- 
 ered, no one knows how, need not be com- 
 municated to the insurer; but intelligence, 
 properly so called, as understood by mercan- 
 tile men, ought to be disclosed when known. 
 DurreU v. Bederly, Holt (N. P.), 283. 
 
 9. It was held in this case, that the person 
 whose life was insured for the benefit of an- 
 other must truly answer all questions put to 
 him; if he answered any of them falsely, the 
 policy was vitiated, or not being distinctly in- 
 terrogated as to his habits, he studiously con- 
 ceals them flrom the insurer, the policy would 
 be void. Rawlins e. Desborough, 2 M. & Rob., 
 328; s. c, 8 C. & P., 321. 
 
 10. Plea: the policy was effected by means 
 of false and fraudulent suppression of certain 
 facts. The jury negatived the fraud. Neither 
 insured nor the person who procured the pol- 
 icy knew of the existence of the facts. Held, 
 the issue was properly found for the plaintiff, 
 because unless the information not disclosed 
 was within the knowledge of insured, it was 
 not fraudulently suppressed. Qreenteell e. 
 Ifieholson, 1 Jur., 385. 
 
 CONDEMNED FOR BEING UNSOUND 
 OR ROTTEN. 
 
 (See Seawobthiness.) 
 I. StJRVBT. 
 
 (a) W/ien conclusive. 
 
 (b) not conelvsive. 
 
 I. SuKVET. 
 
 (a) When conchiswe. 
 
 1. Stipulated: "If the above vessel upon a 
 survey shall be declared unseaworthy by reas- 
 on of her being unsound or rotten or incapa- 
 ble of prosecuting her voyage on account of 
 her being unsound or rotten, then insurers 
 shall not be bound to pay their subscription 
 on this policy." The special verdict found 
 she was condemned because the surveyors 
 found her as in the sentence stated, viz : in a 
 very leaky state and in a very decayed condi- 
 tion, and that she was altogether unworthy of 
 being repaired, and ought to be condemned, 
 because she was unsafe and unfit ever to go to 
 sea again. Held, the parties, by their conti-act, 
 made their rights to depend on the fact of the 
 survey rather than the truth of it; any irregu- 
 larity found in it was attributable to the agents 
 of the insured, for the surveyors were volun- 
 tarily selected by tlie master, and therefore it 
 must be regarded as a regular survey, and 
 sufiBcient to discharge the insurers. Dorr v. 
 Pacific Ins. Co., 7 Wheat., 581 ; Janney ®. Co- 
 lumbian, Ins. Co., 10 id., 411. 
 
 2. A survey made in a port of necessity by 
 ship masters appointed by the U. 8. consul 
 with the consent of the master, will be deemed 
 a regular survey. Innes o. Alliance Mut. Ins. 
 Co., 1 Sand., 310. 
 
 S. Stipulated : " If the vessel upon a regu- 
 lar survey shall be declared unseaworthy, by 
 reason of her being declared unsound or rot- 
 ten, then the insurers shall not be liable." 
 The defendants pleaded that a survey was 
 held at the port of necessity; that the survey- 
 ors declared that she was so rotten and un- 
 sound as to render her unseaworthy and in- 
 capable of performing the voyage. Held, a 
 good plea. Rogers «. Niagara Ins. Co., 3 
 Hall N. Y., 86. 
 
 4. Stipulated: " If the vessel, after a regular 
 
 isa 
 
267 
 
 CONDEMNED FOR BEING UNSOUND OR ROTTEN. 
 
 268 
 
 Survey. 
 
 survey, shall be condemned for being unsound 
 or rotten, insurers slial! not be bound." Sur- 
 veyors reported " Her slern, apron, bends, and 
 the most part of her timbers decayed, also a 
 Considerable part of her planks, from which 
 circumstances, in our opinion, to make her a 
 good, strong, staunch and seaworthy vessel, it 
 would cost a great deal more than she would 
 be wortli when finished." Held, the insurers 
 were not liable. Steiiimetz v. United States 
 Ins. Co., 2 S. & R., 293. 
 
 (b) When not concluswe. 
 
 5. Stipulated : " If the above vessel, after a 
 regular survey, shall be condemned for being 
 unsound or rotten, the underwriters shall not 
 be bound to pay their subscription on this 
 policy." Plea: "That a regular survey was 
 held, and she was condemned for being un- 
 sound to that degree as not to be worthy to be 
 repaired and rendered fit and able to perform 
 the voyage." James Hunter and Paul Proby 
 certified : " We find, on a minute examination 
 of the hull, that without going into an exten- 
 sive repair, the intended voyage cannot be 
 prosecuted, and considering the heavy expense 
 that must necessarily attend such a measure, 
 and which, in our opinion, would exceed the 
 value of the vessel when completed, we are 
 clearly of opinion that the vessel and her ma- 
 terials in their present state should be imme- 
 diately sold on account of those concerned." 
 Held, the report of the surveyors was not con- 
 clusive evidence that she was unsound and rot 
 ten. Marine Ins. Co. v. Wilson, 3 Cranch, 187. 
 
 6. Stipulated : " If she shall be condemned 
 as unsound or rotten, the underwriters shall 
 not be liable." She encountered heavy weath- 
 er, in which she was very much strained and 
 made a great deal of water ; was surveyed, and 
 the survey stated that she was found unsound 
 and rotten, and that in her shattered and 
 strained condition, and for want of proper 
 docks at the port of distress, the repairs would 
 cost more than she was worth; she was ac- 
 cordingly sold. Held, the survey was not evi- 
 dence that she was sold because she was rotten ; 
 and it was no evidence that she was unsea- 
 worthy when the voyage commenced. Watson 
 V. Ins. Co. of North America, 2 Wash. C. C, 153. 
 
 7. " Warranted, if the vessel upon a regular 
 survey shall be declared unseaworfUy, by rea- 
 son of her being unsound, rotten, or incapable 
 
 134 
 
 of prosecuting her voyage on account of her 
 being unsound or rotten, the insurers shall not 
 be bound." She made port Antonio, after ex- 
 periencing violent storms. Three persons 
 surveyed her and stated, under oath, tliat her 
 timbers fore and aft were rotten; that the 
 oakum had worked out of the wood ends for- 
 ward, the foremast sprung, main cross trees, 
 main transom, rudder head, deck knees and 
 ceiling in general, were rotten, her flying jib, 
 fore-sail, top-sail, and all other sails, with the 
 hulk, not sufScient to proceed on the intended 
 voyage; that she was not worthy necessary 
 repairs, and ought to be sold for the benefit of 
 all concerned. Held, the condemnation did 
 not proceed on the single ground that she was 
 unsound and rotten; that it was connected 
 with the defects and circumstances, and was 
 therefore not conclusive; and that proof de 
 hora the survey was admissible for the pur- 
 pose of showing that she was not condemned 
 on account of rottenness and defects in her 
 hulk and timbers, but because the injuries 
 she had received were such as to render it im- 
 possible to repair her. Overrules same case, 4 
 Johns., 133. Haff v. Marine Ins. Co., 8 Johns., 
 163. 
 
 8. At and from Cape St. Francois to Phila- 
 delphia. Stipulated : " If, after a regular sur- 
 vey, she shall be condemned for being un- 
 sound or rotten, the underwriters shall not be 
 bound to pay their subscription on this poli- 
 cy." She arrived at Cape St. Francois Octo- 
 ber 12th, and sailed on the voyage November 
 10, 1801. On the next day, having encountered 
 no bad weather, she sprung a leak, put back, 
 and arrived on the 15th. The cargo was 
 taken out, four streaks were taken from her 
 waist, from stem to stern, on both Bides. Sur- 
 veyors reported, " They were in a bad situa- 
 tion at the load water line as well as the ribs 
 and timbers, which had been eaten by rats, 
 and were totally unfit to receive the nails to 
 be used in replacing the planks." Anotiier 
 survey was held, and they reported that they 
 found the plank and timbers "very inferior; 
 that upon finding this, they thought it useless 
 to continue ripping, having already seen sufS- 
 cient to prove that the brig was in so bad a 
 state that the necessary repairs would exceed 
 her value when repaired." She was con- 
 demned and sold for account of all concerned. 
 Meld, unless the survey showed that she was 
 unsound or rotten, the plaintiff was not barred 
 
269 
 
 CONDITION PRECEDENT. 
 
 270 
 
 What satisfies — What does not satisfy. 
 
 by the stipulation. GanHguea «, Coxe, 1 Binn., 
 593. 
 
 9. On brig, stipulated : " If, after a regular 
 survej-, she should lie condemned for being 
 unsound or rotten, insurer shall not be 
 bound," etc. She was surveyed at Antigua, 
 and it was certified that her injuries were 
 caused by storm as well as by decay. Held, 
 the survey was not conclusive evidence that 
 she was condemned for being "unsound or 
 rotten." Armroyd v. Union Ins. Co., 3 Binn., 
 
 CONDITION PRECEDENT. 
 
 (See Fboofs 07 Loss.) 
 I. What is not. 
 
 II. SATISFIES. 
 
 III. DOES NOT SATISFY. 
 
 I. "What is not. 
 
 On ship, stipulated: "All chain cables to 
 be properly tested, ships to be subject to sur- 
 vey by the committee or their inspector at 
 specified times, and, in case of noncompli- 
 ance with orders to repair, the parties neg- 
 lecting to be uninsured." Held, testing the 
 chain cable was not a condition precedent, 
 but was only a direction to the committee. 
 Harrison v. Douglas, 3 A. & £., 396; 6 N. & 
 M., 180. 
 
 II. What satisfies. 
 
 1. Policy to a mortgagee stipulated: "To 
 be paid whenever, and as soon as his lien upon 
 said property, by virtue of said mortgage, is 
 established by decree of court, or otherwise. 
 Held, it was sufficient for him to establish a 
 lien upon a portion of the mortgaged proper, 
 ty equal in value to tlie whole amount insured. 
 Harris v. Ompet Fire and Marine Ins. Co., 9 
 RI.,207. 
 
 a. The policy stipulated that in case the in- 
 sured is mortgagee, he or they shall assign to 
 the company the mortgage upon the premises 
 insured, together with the debt secured there- 
 
 by, or so much thereof as will be sufficient to 
 pay said loss, and a refusal to execute such 
 an assignment shall operate to discharge tliis 
 company from all liability under this con- 
 tract Held, an assignment made and deliver- 
 ed, to which no objection was made, satisfied 
 the condition. New England Fire and Marine 
 Ins. Co. V. Wetmore, 33 UK, 331. 
 
 3. According to the usages of the trade, a 
 license to land the cargo was to be procured 
 by the shipper before she reached her port of 
 destination ; but she never reached the port of 
 destination. Held, procuring the license was 
 not necessary to enable the insured to recover. 
 MeFee v. South Carolina Ins. Co., 2 McCord, 
 508. 
 
 III. "What does not satisfy. 
 
 1. Stipulated : " In case of loss, payment to 
 be made in thirty days after notice and proof 
 thereof." There was not any evidence tending 
 to show a compliance with this condition. 
 Held, no recovery could be had. Washington 
 Mut. Ins. Co. V. Hvrckenrath, 3 Rob. (N. T.), 
 335. 
 
 2. Stipulated: "In case of capture, insured 
 shall claim and prosecute as Spanish prop- 
 erty until condemnation or acquittal, and in- 
 surers will contribute to expenses consequent." 
 She was captured and condemned, but insured 
 failed to prosecute an appeal from the decree. 
 Held, the insured could not recover. Thatcher 
 v. BeUows, 13 Mass., 111. 
 
 3. On ship and cargo, stipulated : " In case 
 of capture the insured agrees to claim and 
 prosecute for the property as Spanish, until 
 acquittal or condemnation, before a high court 
 of admiralty." She was captured, but no 
 claim or prosecution was made, on the ground 
 that to do so was immoral and illegal, as tend- 
 ing to produce perjury and subornation of 
 perjury. Held, if any part of the contract 
 was illegal the whole was, and the insurer was 
 discharged. Coolidge v. Blake, 15 Mass., 439. 
 
 4. A condition of the policy required in- 
 sured to procure from a notary public, magis- 
 trate, or clergyman most contiguous to the 
 fire, a certificate setting forth the character of 
 the insured and the amount of the loss. The 
 two magistrates nearest the fire refused to give 
 the certificate, but the next nearest gave it. 
 Held, the condition was not satisfied. Lead- 
 
 133 
 
271 
 
 COSIDERATION. 
 
 What is sufficient — What is not sufficient. 
 
 tetter v. ^tna Inn. Co., 13 Me., 265; Boumage 
 V. MeeKanicg Fire Ins. Co., 13 N. J., 110. 
 
 5. Stipulated : " If alterations shall be made, 
 insured must apply to an oflScer of the com- 
 X>auy who shall examine the premises,.and if 
 the hazard shall be increased the premium 
 shall be increased. But if the hazard be not 
 increased the officers shall certify, 'Altered, 
 but not endangered.' " Seld, insured could 
 not prove that an alteration had not increased 
 the risk, without showing the examination and 
 certificate. DieM v. Adams Co. Mut. Ins. Co., 
 58 Penn. St., 443. 
 
 6. Tlie policy required insured to make 
 preliminary proof as to whether any and what 
 other insurance had been made by insured 
 upon the same property. Insured failed to 
 make such proof prior to commencement of 
 the action. Held, he could not recover. Bat- 
 taile V. Merchants Ins. Co., 3 Rob. (La.), 384. 
 
 7. .Stipulated: " No abandonment shall take 
 place, in case of capture or detention by the 
 British, until condemned, and the proceedings 
 of the court and sentence of condemnation 
 produced. And in case of capture or deten- 
 tion by any other power, the like documents 
 shall be produced, unless satisfactory reasons 
 can be given that they cannot be obtained." 
 Held, an abandonment for ' capture by the 
 British or any other power, could not be made 
 until condemnation. De Peau v. Russell, 1 
 Brev.,441. 
 
 8. Stipulated: "The crew shall not be less 
 than six hands and a pilot ; the master and 
 crew so soon as practicable, after any disaster, 
 shall repair to the nearest convenient magis- 
 trate or notary, and there make a protest, set- 
 ting forth the cause of the disaster as near as 
 practicable, and the extent of the damage." 
 Held, a binding condition upon insured, and 
 must be performed to entitle him to recover 
 (citing 3 Kent's Com., 6th ed., 876). Peoria 
 Marine and Fire Ins. Co. v. WaZser, 22 Ind., 
 73. 
 
 9. Conditioned that insured should procure 
 from the minister and church wardens a certi- 
 ficate of the loss, and the character of the in- 
 sured. Held, valid, and is precedent to any 
 right of action. Boutledge v. Burrell, 1 H. 
 Black, 254; Worsley o. Wood, 6 Term, 710; 
 8. c, 3 H. Black, 574. 
 
 10. Conditioned that insured should pro- 
 cure from the nearest magistrate a certificate 
 of his loss. HM, valid, and is precedent to 
 
 136 
 
 any right of action. Cornell v. Hope Ins. Co., 
 15 Martin (La.), 233. 
 
 CONSIDERATION. 
 
 I. What is sdfpicient. 
 
 II. NOT SUFFICIENT 
 
 III. Failtjke or. 
 
 IV. When the want op, cannot be tjboeix 
 V. When a consideration is not needed. 
 
 I. What is sufficient. 
 
 1 . The compromise of a doubtful claim or 
 defense is a suiBcient consideration for a 
 promise. Barlow v. Ocean Ins. Co., 4 Met, 270. 
 
 2. G. applied for in.surance upon cargo for 
 himself and others without stating whom. 6. 
 procured 8. to execute with him a promissory 
 note for the premium. S. had no interest in 
 the cargo. Q. and two others were the owners 
 of it. Held, G. was the agent of the other own- 
 ers in effecting the insurance; that insurers 
 elected whom they would have for their debtor, 
 and having elected, they must recover upon the 
 note or not at all. Patapsco Itis. Co. d. Smith, 
 6 H. & J., 166. 
 
 3. The consideration for the premium note 
 was the making and delivering to the defend- 
 ant of a policy of insurance, which by its 
 terms insurers had the right at any time to 
 cancel by giving proper notice of their inten- 
 tion so to do. Held, a good consideration, 
 notwithstanding the parties agreed that the 
 policy might he rescinded at any time. JVa- 
 tional Ins. Co. «. Irwin, 1 Disney, 480; Incin 
 «. National Ins. Co., 3 id., 68 
 
 II. "What is not sufficient. 
 
 1. A. insured his property and gave a note 
 signed in the name of his firm for the premi- 
 um. Held, the firm was not bound. Lime 
 Pock Fire and Marine Ins. Co. «. Treat, 58 Me., 
 415. 
 
 2. Action upon premium notes. The prop- 
 erty mentioned in the policy for which they 
 were given had been alienated, and the secre- 
 tary made an indorsement that it should cover 
 other property. It was provided in the charter 
 that an alienation of property should render 
 
273 
 
 CONSIGNOR AND CONSIGNEE. 
 
 274 
 
 Rights and duties of. 
 
 the policy void unless the directors' consent 
 should he ohtained, certified by the secretary, 
 permitting an assignment to the alienee. Held, 
 the secretary had no authority to make any 
 contract of insurance other than in the man- 
 ner prescribed in the charter and by-laws, and 
 this indorsement was utterly void, that the 
 premium note was without consideration and 
 void. Mound City Ins. Co. o. Cvrran, 43 Mo., 
 374. 
 
 3. Defendant gave his promissory note as 
 the consideration for a policy. The charter, a 
 part of the contract, provided tliat any sale of 
 the property insured should render the policy 
 void. Insured sold the property. HM, the 
 policy was void, and no recovery could be 
 had upon the note. Miner v. Jvdson, 3 Hun. 
 (N. T.), 441 ; s. c, 3 Lans., 300 ; 5 N. T. S. C, 
 46. 
 
 4. The company issued the policy a month 
 and a half before it was authorized to com- 
 mence business, and received the premium 
 note as the consideration therefor. Held, the 
 policy was issued without authority, and there 
 was no consideration for the note. WiUiams 
 «. Babeoek, 25 Barb., 109. 
 
 6. The defendant produced a paper as fol- 
 lows: "In consideration of the payment by 
 the Hartford Ins. Co. of |1,000, I hereby waive 
 all claims I may have against the Western 
 Mass. Ins. Co., under any policies issued pre- 
 vious to July 9, 1860. Owss Duffet." The 
 agent of the Western Mass. was also agent of 
 the Hartford Ins. Co., in which insured had a 
 policy for the same amount that he claimed 
 against the Western Mass. Ins. Co., $1,000, 
 upon one and the same stock of goods. J9r«2d, 
 if he had a claim upon the Hartford Co., the 
 payment of it was no legal consideration for 
 a release of the claim against the Western 
 Mass.; that the jury, upon the facts proven, 
 were the judges whether there was a want of 
 consideration for the release. Wetiem Mass. 
 Ins. Co. t). Bvffey, 2 Kan., 347. 
 
 6. The plaintiff charged that defendant had 
 promised and agreed to deliver up a bottomry 
 bond, on plaintifi^s making up the difference 
 between the sum recovered by the lender, of 
 his insurer on the ship, and tlie amount named 
 iu the bond. HM, nitdum pactum, a mere vol- 
 untary offer on condition that the money 
 should be then paid, which was not complied 
 with. Harman v. VanhatUm, 2 Vern., Sd 
 part, 717. 
 
 III. Failure of. 
 
 The receiver of an insolvent insurance 
 company brought suit upon a note payable in 
 annual instalments of four dollars and twenty 
 cents each. The company was authorized to 
 insure on the mutual plan, taking a note for 
 the premium, or, on the stock plan, by taking 
 the premium in cash. Held, the considera- 
 tion failed when the company became in- 
 solvent Farmers and Merchants Ins. Co. «. 
 Smith, 63 111., 187. 
 
 IV. "When want of, cannot be ukged. 
 
 The defendant made a promissory note to 
 the Commercial Mutual Marine Ins. Co., who 
 indorsed it, " Colh'l Mut. Mar. Ins. Co., by 
 Greo. H. Folger, President." It was negotiated 
 to the plaintiffs to secure the note of another 
 person, given in payment of bank stock, trans- 
 ferred to the insurance company. The maker 
 insisted that soon after the note was given, the 
 company was found insolvent; that he sur- 
 rendered his policy and demanded a return of 
 the note. Held, no defense to the action if the 
 plaintiffs were ignorant of the insolvency of 
 the company. Brown «. Donndl, 49 Me., 431. 
 
 Y. When a consideration is not 
 
 NEEDED. 
 
 Declaration charged the defendant, an in- 
 surance broker, with misfeasance; but there 
 was not any averment of a consideration for 
 the broker's undertaking. Held, if one under- 
 take to do an act gratuitously, he is liable for 
 misfeasance ; hence a consideration need not 
 be averred. Johnston c. Graham, 14 U. 0. 0. 
 P., 9. 
 
 CONSIGNOR AND CONSIGNEE. 
 
 Eights and DtrnES of. 
 
 1. If one merchant is in the habit of effect- 
 ing insurances for his correspondent, and neg- 
 lects when directed to do so, he becomes the 
 insurer and is entitled to the premium. Mom 
 V. Summ&rl, 3 Wasa. C. C, 303. 
 
 137 
 
275 
 
 CONSIGNOR AND CONSIGNEE. 
 
 276 
 
 Rights and duties of. 
 
 2. The plaintiffs admitted that it was their 
 duty to obtain insurance on the cargo of the 
 defendant accoixling to instructions. Held, if 
 the cargo had been lost, they would have heen 
 liable to the defendant in damages to tlie 
 amount which they should have effected ; but 
 their failure to insure gave not to them any 
 right to the premium, for the reason that no 
 contract of insurance had been made. Storer 
 ■D. Eaton, 50 Me., 219. 
 
 3. Consignors ordered consignee to insure, 
 and insurance was made in the name of con- 
 signee. Held, if consignee accepts a consign- 
 ment with instructions to insure for consignor, 
 it is his duty to do so ; and if he neglects, and 
 a loss occurs, he is liable to his consignor for 
 the value. The consignee had the right to 
 insure to the full value of the property con- 
 signed, and the policy will inure to the bene- 
 fit of his principal ; the consignee being treated 
 as a trustee, may recover the full amount in- 
 sured. Shaw V. ^tna Ina. Co., 49 Mo., 578. 
 
 4. A factor for hire is not obliged to effect 
 insurance on the property consigned to him. 
 Schmfler v. Kirk, 49 111., 251. 
 
 5. To recover against a consignee who has 
 failed to insure goods in his possession, the 
 evidence upon which the duty is founded 
 must be most conclusive. Tonge «. Kennett, 
 10 La. An., 800. 
 
 6. An agent who has been intrusted to in- 
 sure goods cannot take the risk himself and 
 recover from his principal the premium for 
 insurance, notwithstanding his failure to obey 
 the instructions of his principal would render 
 him liable for the loss. £eane n. Brandin, 12 
 La. An., 20. 
 
 7. The factors of the plaintiff effected in- 
 surance on their stock of tobacco at the rate 
 of one-eighth of one per cent, per month, and 
 charged their principal at the rate of one- 
 fourth per mouth. Held, the factors were in- 
 surers of their principal, and the policies by 
 them obtained were to be treated as reinsur- 
 ance for their own benefit. Miller v. Tate, 12 
 La. An., 160. 
 
 8. The defendant, a merchant of Arkansas, 
 ordered goods of the plaintiff, a merchant of 
 St. Louis. They were shipped upon a steam- 
 boat and the usual advices and bill of lading 
 were sent. The goods were lost in the Missis- 
 
 sippi, before they reached their destination. 
 The plaintiff was not specially ordered to in- 
 sure. The defendant had, on twelve prior oc- 
 casions, ordered goods from the plaintiff, 
 which had been sent to him by steamboat; he 
 had never ordered them insured, and plaints 
 iff had never charged him anything for 
 insuring them. It was not the custom in 
 St. Louis for merchants to insure goods so 
 ordered. One witness testified that he had 
 purchased plantation supplies in St. Louis, 
 gave no instructions to insure; that he was 
 charged with insurance, and he believed it 
 was the custom in New Orleans and Louis- 
 ville and other western cities, to charge the 
 premium for insurance without any order to 
 insure. Another witness testified that most 
 of the shipments made to the defendant by 
 merchants in cities other than St. Louis were 
 insured by the shippers. Held, an instruction 
 based upon the evidence given in relation to 
 the custom to insure at places other than St. 
 Louis was erroneous, and though there was a 
 general custom to insure, the dealings be- 
 tween the parties must control their rights. 
 WaUhv. Frank, 19 Ark., 270. 
 
 9. If the consignee accept a consignment, 
 accompanied by instructions to insure, and 
 he fails to insure, he is liable for the loss, be. 
 cause he cannot accept as to a part and reject 
 as to the rest. Smith v. Laicelles, 2 Term, 187 ; 
 Wallace v. Telfair, id., 188 n. 
 
 10. A. was indebted to B., £850. A. re- 
 sided abroad and B. in London. A. pledged 
 his interest in certain goods and freight to B., 
 as security for the debt, and directed B. to 
 procure insurance on them and freight, in- 
 closing the bills of lading to B. Held, the 
 defendant was bound to make the insurance 
 or give notice of his dissent. Smith «. Las- 
 celles, 2 Term, 187. 
 
 H. The consignees made advances to the 
 shippers, £1.^0, and insured the consignment 
 for £510, being £27 more than the invoice. 
 The goods were damaged on the voyage. The 
 consignees failed to have the necessary survey 
 made ; in consequence of that failure insurers 
 defended successfully. Held, the consignees 
 were liable to the consignors for the sum in- 
 sured, less the advances. (Trguhart v. AiMtra- 
 lian Co., 5 Scot. Jur., 348. 
 
 138 
 
277 
 
 CONSOLIDATION OF ACTIONS — CONSTRUCTION. 
 
 2T8 
 
 Consolidation allowed; denied — Answers to questions in application. 
 
 CONSOLIDATION OF ACTIONS. 
 
 (See Action.) 
 
 I. Consolidation aixowed. 
 
 II. DENIED. 
 
 I. Consolidation aij,owed. 
 
 1. Where there are two causes against dif- 
 ferent defendants, but by the same plaintiff, 
 pending at the same term, the court can, with- 
 out consent uf defendants, order them to be 
 cousolidated, unless one of the defendants 
 has a defense different from the other or evi- 
 dence that tlie other has not Wiitierlee v. 
 Ocean In». Co., 24 Pick., 67. 
 
 2. Four companies contracted under one 
 policy, which stipulated that each acted for 
 itself, and tliat each would be liable for one- 
 fourth the whole amount insured. Four sep- 
 arate actions were commenced upon the ctm- 
 tract, and they were consolidated, which was 
 afBrmed by a divided court Vide v. Oer- 
 mania Ins. Co., 36 Ii>wa, 9. 
 
 3. Forty-eighl actions by the same plaintiff, 
 on the same policy of insurance, for the same 
 loss, were consolidated. HoUingaworth o. 
 Brodnck, 4 A. & E., 646; 6 N. & M., 240. 
 
 4. Thirty-eight causes by one plaintiff, 
 against different underwriters. There had 
 been a consolidation rule to abide the determi- 
 nation of the court in Reed c. Bonham, 6 Moore, 
 897, where the question was whether notice of 
 abandonment had been given in due time. 
 This application was made to open the rule, 
 upon affidavit that the plaintiff had received 
 three letters from the master relating to the 
 sale and condition of the ship previous to his 
 arrival in London. Edd, tlie rule must not 
 be opened. £ead o. Isaa^i, 6 Moore, 437. 
 
 n. Consolidation denied. 
 
 1. Insurers and insured stipulated that all 
 actions against all the insurers should be de- 
 termined by the decision which might be 
 made in one of them. The court set aside 
 the stipulation, on the ground that it was 
 founded in mistake, because the cases were 
 materially different. Mexandtr v. Muirhead, 
 2 Dessans. llq., 163. 
 
 2. Several actions were brought upon the 
 same policy against separate insurers. Held, 
 
 the court would not order them consolidated 
 without the plaintiff's consent. Doyle v. An- 
 derson, 1 A. & E., 635 ; 4 N. & M., 873. 
 
 3. Two actions were brought against dif- 
 ferent defendants by the same plaintiff. Seld, 
 the court would not consolidate them upon 
 defendants' motion unless the plaintiff would 
 consent McGregor e. Horstfail, 3 Mee. & W., 
 320; 7 L. J. (N. S.), Ex., 71 ; 2 Jur., 257. 
 
 CONSTRUCTION. 
 
 I. 
 
 Answers to questions in applica- 
 
 
 tion. 
 
 II. 
 
 BOILEB CLAUSE. 
 
 IIL 
 
 Bauaoeb. 
 
 IV. 
 
 LiGHTNINO. 
 
 V. 
 
 Mekch-indise, pkopertt, cargo and 
 
 
 FREIGHT. 
 
 VI. 
 
 Night watchman and night work. 
 
 VII. 
 
 Uss, occupation or employment. 
 
 Tin. 
 
 Voyage or voyages insured. 
 
 TX. 
 
 "War risks. 
 
 X. 
 
 EVPBSSIO UNIUS EST EXCLUSIO ALTER- 
 
 
 lUS. 
 
 XI. 
 
 Generally. 
 
 I. Answeks to questions in appli- 
 cation. 
 
 1. Stipulated: "The answers in the appli- 
 cation shall be the basis of the contract, and 
 the same are wsirranted to be full, correct and 
 true, and no circumstances are concealed, 
 withheld or unmentioncd in relation to the 
 past or present state of health, habits of life 
 or condition of the said party whose life is to 
 be insured which may render an insurance 
 on his life more than usually hazardous, or 
 ■which may affect unfavorably his prospects 
 of life; and if the forgoing answers and state- 
 ments be not in all respects, full true and cor- 
 rect, the policy shall be void." Held, there 
 was a distinction between untruthful answers 
 to specific questions, and the mere failure to 
 make full answers. To defeat the policy, Uie 
 failure must relate to some circumstance 
 which might make the insurance unusually 
 hazardous, or which might affect . unfavor- 
 ably his prospects of life. An untruthful or 
 incorrect answer to a specific question reu- 
 
 139 
 
279 
 
 CONSTRUCTION. 
 
 280 
 
 Boiler clause — Damages. 
 
 dered the policyabsolutely void, though made 
 in relation to a matter not material to the 
 risk. Swick v. Home Life Itis. Co., 3 Di\. Cir. 
 C, 160. 
 
 2. The only expressions found in the appli- 
 cation upon the question of title were in an- 
 swer to whether the title was a warranty deed 
 or a bond, to which insured answered, " W. D.," 
 but in answer to another question, " Is your 
 property incumbered? the word " None," was 
 written. Held, they did not import that the 
 insured had a warranty deed or that her prop- 
 erty was not incumbered. Bodcford Ing. 
 Co. f). Nehon, 65 111., 415. And if the title was 
 warranted to be by warranty deed, that was 
 not to be construed as a title in fee, for a war- 
 ranty deed may pass an estate for a term of 
 years, or a life estate, or no estate whatever; 
 because it conveys the estate of the grantor 
 and he may have none at all. Ibid. 
 
 II. BOILEE CLAUSE. 
 
 1. The company was not to be liable for 
 any breakage or derangement of the engine or 
 any bursting of the boiler, or for the effects of 
 fire from any cause connected with the opera- 
 tion of repairs to engine or boiler, unless the 
 damage should be occasioned and the repairs 
 rendered necessary by stranding or sinking of 
 the vessel after her engine and boiler should 
 have been put in successful operation. Held, 
 if the immediate or proximate cause of the 
 loss was stranding, insurer was liable, not- 
 withstanding the breakage of the machinery 
 made it necessary to run her ashore, and she 
 ■was stranded (citing Western Ins. Co. v. Crop- 
 per, 33 Penn. St., 351). OommoTuneaUh Ins. 
 Oo. n. Cropper, 31 Md., 311. 
 
 2. On steamTioat tackle, machinery, etc., 
 stipulated : " Not liable for any breakage or 
 derangement of the enginej nor bursting of the 
 boiler; nor any parts thereof." A feed cock 
 bursted and a bolt was broken out of the 
 stripping box, which censed her to leak and, 
 to prevent sinking, she was run ashore and 
 lost. Held, insurers were relieved from lia^ 
 bilify for broken or dera,nged machineryt but 
 they were not exempt from liability for a 
 total loss, though caused by the breakage of 
 the machinery. Western Ins. Oo. «. Cropper, 
 33 Penn. St., 351. 
 
 3. Stipulated : " Not liable for any partial 
 loss or particular average, unless such loss or 
 
 140 
 
 average shall amount to ten per cent., nor in 
 case of partial loss shall they be liable for the 
 bursting of boilers or the breaking of engines 
 unless occasioned by external violence." 
 Held, in ascertaining the amount of damage 
 for the purpose of determining whether in- 
 sured had the right to abandon and claim for 
 a total loss, the engine and boilers must be ex- 
 eluded from the estimate, if the damage wad 
 caused by the bursting of a boiler not pro- 
 duced by external violence. Gitisem Ins. Oo, 
 V. Glasgow, 9 Mo., 406. 
 
 III. Damares. 
 
 1. $3,000 on certain goods, stipulated: "In 
 case of loss, insured shall not recover on this 
 policy any greater proportion of the loss or 
 damage sustained than the amount hereby in- 
 sured shall bear to the whole amount insured 
 on said property." Insured held other poli- 
 cies on the same property to the amount of 
 $47,000, but they covered a large amount nf 
 other property owned by the insured. The 
 value of the entire property destroyed was 
 $88,000. The value of the property covered 
 by defendant's policy was $16,000. Held, each 
 parcel should be deemed insured for fj of its 
 value ; that the parcel covered by the defend- 
 ant's policy, being worth $16,000, and it being 
 insured only for $3,000, it was insured for ^ 
 of its value ; therefore, there was no over in- 
 surance, and consequently no occasion for an 
 apportionment. Ogden s. East Siver Ins. Go., 
 50 N. T., 888. 
 
 2. $8,000 on brig, valued at $10,000, for one 
 year. Stipulated : " In case of loss or misfor- 
 tune, it shall be lawful and necessary for the 
 insured, their factors, servants and assigns, to 
 sue, labor and travel, in and about the defense, 
 safeguard and recovery of the said vessel, or 
 any^part thereof, without prejudice to the in- 
 surance made by said policy, and to the 
 charges thereof the company will contribute 
 according to the rale and quantity of the sum 
 insured by said policy." She was driven 
 ashore, lost her fore foot, and commenced tj 
 leak badly. Cargo being discharged, it was 
 found necessary to make extensive repairs. 
 Her proportion of the expenses of unloading, 
 taking care of the cargo, and ascertaining 
 the nature and extent of the damage, amounted 
 to the sum of $581.16. Partial repairs $8,769.74. 
 Complete repairs at the port of destination 
 
281 
 
 CONSTRUCTION. 
 
 less one-third new for old, $4,574.41. Held, 
 insurers were liable for eight-tenths of the 
 repairs not exceeding $8,000, and eight-tenths 
 of the vessel's proportion of the general aver- 
 age. Alexandre v. Snn Mut. Ins. Co., 51 N. 
 Y., 253. 
 
 3. The contract recited : " The real property 
 above specified is herein estimated at two- 
 thirds of its cash value. Such estimate, how- 
 ever, is not to be conclusive on tlie company. 
 In case of loss, the company shall only be 
 obliged to pay as if they had only insured 
 two-thirds of the cash value of said property." 
 Held, the insurer could' not be made liable for 
 the full value of the property, though it was 
 less than the sum insured. Sgan v. Mut. 
 Ins. Co., 5 Denio, 326. 
 
 4. The plaintiflF underwrote certain policies 
 on the ship Great Republic, tJien lying at New 
 York, also on her freight and cargo thence to 
 Liverpool. They applied to defendant's agent 
 for reinsurance in the following words: "Re- 
 insurance is wanted by the M. M. Ins. Co. for 
 f , on cargo on board the ship Great Re- 
 public, at and from New York to Liverpool, 
 ex. 50,000, not to ex. 15,000. This policy is to 
 be subject to such risks, valuations and condi- 
 tions as are or may be taken by the M. M. Ins. 
 Co., and payments of loss to be made at the 
 same time." Defendant's agents underwrote 
 the word " binding," and a£5xed their signa- 
 tures to it. Insurers had less than $50,000 at 
 risk on the cargo, but they had risks on ship 
 and freight, which, together with the risks on 
 cargo amounted to $65,000. The words " ex. 
 50,000, not to ex. 15,000 " were admitted to 
 mean on tlie excess of risks insurers might 
 have over $50,000, not to exceed $15,000. Held, 
 in determining whether the defendant was 
 liable, the risks taken by plaintiff on the ship 
 and her feight were not to be considered. 
 Mercantile Mut. Ins. Co. «. State Mutual Fire 
 and Marine In». Co., 25 Barb., 319. 
 
 5. The policy limited the insurance to three- 
 fourths of the value of the property insured. 
 Held, the damages must be limited to three- 
 fourths the value. Post v. Hampshire Mut. 
 Ins. Co., 12 Met, 553. 
 
 6. The policy was to be void if other insur- 
 ance was then upon the same property. Stip- 
 ulated: "And in case of any other insurance 
 upon the same, whether prior or subsequent, 
 the insured shall not, in case of loss or dam- 
 age, be entitled to recover any greater propor- 
 
 tion than the amount hereby insured bears to 
 the whole amount insured." At the time the 
 policy was made there was other insurance 
 upon the same : 2,000 in the People's Ins. Co., 
 of which notice was given and indorsed upon 
 this defendant's policy. The People's policy 
 prohibited any other insurance unless notice 
 were given of it; and insured did not give no- 
 tice to the People's Company of this policy. 
 Held, the consent given in this policy to other 
 insurance by the People's Company was not a 
 warranty that the People's policy should con- 
 tinue during the period covered by defendant's 
 policy ; as there was no other valid insurance 
 upon the property at the time of the loss, the 
 defendant was liable for the whole, as it did 
 not exceed the sum insured. Forbuahv. Wes- 
 tern Mass. Ins. Co., 4 Gray, 337. 
 
 7. On Ship. Stipulated: "Insurers shall 
 not be liable for any loss or expense in replac- 
 ing the copper now on the bottom of said 
 vessel, or any part thereof, should the same be 
 removed for any cause whatever; but shall be 
 liable for the loss and expense that may happen 
 after she shall have been new coppered." Held, 
 the construction must be contra the insurers ; 
 they should not be liable for a new suit of 
 copper, although that on the vessel at the com- 
 mencement of the risk should be destroyed by 
 perils insured against; but it was not to be 
 construed into an agreement that the vessel 
 should be recoppered at the expense of in- 
 sured. Prince v. Equitable Safety Ins. Co., 12 
 Gray, 527. 
 
 8. Stipulated: "In case of partial loss to 
 drygoods, cutlery, or other hardware, it shall 
 be ascertained by a separation of the damaged 
 from the undamaged portion, etc." Held, it 
 had no application to a case where there was 
 a loss of the voyage caused by sea perils, if 
 there were no means to tranship the goods to 
 the port of destination. Delaware Ins. Co. ■b. 
 WinUr, 38 Penn. St, 176. 
 
 9. The members subscribed a resolution 
 which stated : " The subscribers agree, tliat to 
 avoid all doubt and difficulty in case a loss 
 should occur to our respective property by 
 fire, we will claim and receive three-fourths 
 only of the amount of actual loss, provided 
 that three-fourths of the amount, as aforesaid, 
 does not amount to more than three-fourths Of 
 the sum insured." In the case before the 
 court, three-fourths of the actual loss amounted 
 to more than three-fourths of the sum insured. 
 
 141 
 
283 
 
 CONSTRUCTION. 
 
 284 
 
 Held, insured was entitled to recover the 
 Tvliole sum insured. Farmers MrU. Ins. Go. t. 
 Qrayhill, 74 Penn. St., 17. 
 
 10. Insurance on a number of buildings, 
 separate sums on each, and a sum on hay and 
 grain therein. Hdd, insured must recover for 
 the hay and grain to the amount limited upon 
 it, whether it was in one or all of the build- 
 ings. Mix V. Mutual Ins. Go., 20 N. H., 198. 
 
 11. To a mortgagee on his interest. Stipu- 
 lated : " Liable only for two-thirds the actual 
 value of the property insured." Held, the 
 limitation did not apply to the valuation of 
 the mortgagee's interest, but to the actual val- 
 ue of the properly. Sanders v. Hillsborough 
 Ins. Go., U K. H., 238. 
 
 12. Insured proposed to abandon the boat 
 for a total loss, but were prevented, because 
 insurers agreed to pay their proportion of the 
 costs of repairs. Held, insurers were not 
 bound to pay the whole expense of repairs. 
 Weib «>. Protection Ins. Go., 6 Ohio, 456. 
 
 13. $2,500 on stock, damage to be estimated 
 according to the true and actual value of the 
 property at the time the same shall happen, 
 and to be paid within ninety days after notice 
 and proof thereof, made by insured, at the 
 rate of two-thirds the actual cash value. 
 There was another policy for the same 
 amount on the same goods. Held, insurer was 
 liable for all losses not exceeding the sum of 
 $2,500, providing that was within two-thirds 
 of the value of the entire stock of goods. 
 AsMaTid Mut. Ins. Co. v. Housinger, 10 Ohio 
 St., 10. 
 
 14. The by-laws provided that each mem- 
 ber should pay one dollar and ten cents on the 
 death of a member, and the president should 
 draw his draft on the treasurer payable in six- 
 ty days after receiving notice of the death, for 
 the sum of one dollar for each member in the 
 class or classes to which the deceased member 
 belonged, and that the treasurer should 
 promptly, at maturity of said draft, pay the 
 sum specified to the person authorized to re- 
 ceive the same. The ■plaintiflF alleged that 
 when her husband died, there were 3,477 mem- 
 bers on the rolls of the company. The de- 
 fendant alleged that only 1,747 members had 
 responded to their assessments. HeUd, the 
 company's liability was not limited to their 
 number of members who should pay the as- 
 sessments. Georgia Masonic Mutual Idfe Ins. 
 Go. v. Whitman, 52 Ga., 419. 
 
 143 
 
 15. "To cover and include all bosses, dam- 
 ages and accidents, amounting to £20 or up- 
 wards in each craft, to goods carried by J. & 
 Son, as lightermen, or delivered to them, to 
 be water-borne either in their own or other 
 craft, for which J. & Son may be responsible 
 or liable to the owners thereof, or others in- 
 terested." Several underwriters subscribed 
 different sums, amounting to £2,000, the de- 
 fendant's policy being £100. Insured had in 
 all craft afloat goods of the value of £20,000. 
 An accident occurred to one barge, and her 
 cargo was damaged £1,100, for which insured 
 was lible to the owners. Held, insurers were 
 liable for the whole loss in proportion as the 
 sum insured bore to it ; the fact that there was 
 a larger amount at risk than was insured was 
 immaterial. Joyce r. Kenna/rd, 7 L. R. Q. B., 
 78; 41 L. J. Q. B., 17; 20 W. R, 233; 25 L. T. 
 (N. S.), 932. 
 
 16. The defendants contracted, " With the 
 vice guardians, or the vice guardians for the 
 time being, for and on behalf of the Carrick- 
 on-Shannon-Union, tliat during the employ- 
 ment of C. as collector of poor rate, the de- 
 fendants would pay to the persons for the time 
 being constituting the vice guardians, all such 
 loss not exceeding £500 as the vice guardians 
 and the persons for the time being constitut- 
 ing the vice guardians might sustain from any 
 act of fraud or dishonesty committed by C." 
 The vice guardians were removed and the 
 guardians reinstated, who brought assumpsit 
 upon the agreement, C. having made default 
 in paying over the poor rates collected- EM, 
 the defendant's liability was limited to the 
 time during which the vice guardians held 
 office. Quxvrdians of Garrick- on -Shannon- 
 Union V. Guarantee Society, 2 Ir. C. L. B., 423. 
 
 17. $2,000 on building, and $2,000 on furni- 
 ture. Stipulated: " In case of loss, insured 
 shall be entitled to recover only such proportion 
 as the amount insured shall bear to the whole 
 amount hereby insured." There was other in- 
 surance, $2,000 on building and furniture. 
 The loss was $1,050 on building, and $878 on 
 furniture. Held, defendant was liable for two- 
 thirds of the whole loss. First Gmigregaiion- 
 al Ghurch of Toronto v. Western Ass. Co., 26 U. 
 C. Q. B., 175. 
 
 IV. LiQHTHING. 
 1. A special clause: "Liable for fii* by 
 
285 
 
 CONSTRUCTION. 
 
 286 
 
 Merchandise, property, cargo and freight — Night watchman and night work. 
 
 lightning." The building was rent and torn 
 to pieces by lightning witliout being burned. 
 Held, insurers were not liable for that damage. 
 Babeofk o. Montgomery County Mut. Ins. Co., 
 4N.T.,326; 6 Barb., 637. 
 
 8. Against loss caused by, by reason of, or 
 by means of fire. Sdd, it did not include 
 loss by lightning unaccompanied by combus- 
 tion, but if the building was set on fire by 
 lightning, then it was within the policy. 
 KeanUton v. Mer. Mitt. Ins. Co., 14 N. H., 
 341. 
 
 3. The by-laws attached to the policy stipu- 
 lated : " The company will be liable for losses 
 on property burned or damaged by lightning." 
 It was struck by lightning and greatly dam- 
 aged and shattered in its timbers and material, 
 to the amount of |1,000. Held, the insurer 
 was not liable. Andreies v. Union MutucU Fire 
 Ins. Co., 37 Me., 256. 
 
 V. Mekchakdise, peopebtt, caego 
 
 AND FREIGHT. 
 
 1. On cargo. Held, it did not cover a sum 
 of money paid by him for the use of the ves- 
 sel during an embargo. Penny v. JTeio York 
 Ins. Co., 3 Caines, 155. 
 
 2. On cargo from Cagliari to St. Peters- 
 burgh. She was bound from New York to 
 Cagliari, thence to St. Petersburgh. Held, the 
 policy attached on the goods that she took at 
 Cagliari, but not on goods she had brought 
 there ; that taking the latter from her hold and 
 restowing them was immaterial. Murray v. 
 Columbian Ins. Co., 11 Johns , 302. 
 
 3. On cargo and freight. Held, mules and 
 feed laden for their subsistence during the 
 voyage were not included. Wolcott v. Eagle 
 Ins. Co., 4 Pick., 429. 
 
 4. "Cargo or freight." Hdd, it covered 
 ship owner's goods in his own vessel, and coin 
 (and the freight of it) put on board by the ship 
 owner to be invested in merchandise. Wol- 
 cott f>. Eagle Ins. Co., 4 Pick. 429. 
 
 5. Cargo of lumber and other articles 
 shipped by a merchant and consigned to the 
 master, he paying freight, three-fifths of 
 the lumber, and for the other articles a sum 
 of money ; the ship owner effected insurance, 
 " On property on board." Held, it covered 
 his three-fifths of the lumber, but not the 
 freight on the other articles. Wiggin v. Mer- 
 cantile Ins. Co., 7 Pick., 271. 
 
 6. " On cargo of a whaling ship." Held, it 
 covered oil and other articles, the ordinary 
 products of the voyage. Paddock v, Franklin 
 Ins. Co., 11 Pick., 227. 
 
 7. Insurance on property on board. Held, 
 that the term property included current bank 
 bills. Whiton v. Old Colony Ins. Co., 2 Met., 1. 
 
 8. The word " cargo " is one of large import 
 and means the lading of a ship of whatever it 
 consists. Maey v. Whaling Ins. Co., 9 Met., 354. 
 
 9. Insurance on freight on board, means 
 freight of the vessel. Robinson v. Manufactur- 
 ers Ir.a. Co., 1 Met., 143. 
 
 10. " On merchandise." Held, a mast and 
 boom in store for sale, and a small railroad 
 car, were merchandise. Burgees v. Alliance Ins. 
 Co., 10 Allen, 221. 
 
 11. "On property." Held, it included 
 property kept for use, as well as property for 
 sale. Burgess v. Alliance Ins. Co., 10 Allen, 221. 
 
 12. "On merchandise generally, and with- 
 out exception, their own or held by them in 
 trust or on consignment." Held, it included 
 furniture, wearing apparel and books. Siter 
 v. Moms, 13 Penn. St, 218. 
 
 13. On cargo. Held, it did not cover live 
 stock. An insurance on lire stock must bo 
 specific. Mlegre v. Maryland Ins. Co., 8 G. & 
 J., 190. 
 
 14. " On goods." Held, it did not cover 
 repondentia interest. Qlover v. Black, 3 Burr., 
 1394; 6. c, 1 W. BL, 396, 399, 405, 422. 
 
 VI. Night watchman and night 
 
 WOEK. 
 
 1. In the application, this question was 
 asked : " During what hours is the factory 
 worked?" Answer: "We run the cards, 
 picker, drawing frames and speeder, day and 
 night; tie rest twelve hours daily. We 
 only intend running nights till we get more 
 cards, which are making. Shall not run 
 nights over four months." Held, an agree, 
 ment to cease night work when the cards 
 should be obtained, and that period shall not, 
 at the utmost, exceed four months. Bilbrough 
 v. Metropolis Ins. Co., o Duer, 587. 
 
 2. The policy was based upon a written 
 application in the form of questions and 
 answers. To the question, whether the mill 
 was left alone at any time after the watchman 
 goes off duty in the morning, it was answered, 
 '* Only at meal times, and on the Sabbath, and 
 
 143 
 
287 
 
 CONSTRUCTION. 
 
 288 
 
 Use, occupation or employment. 
 
 other days when the mill does not run. "To 
 another question, whether there is a watch- 
 man in the mill during the night, it was 
 answered, " There is a watchman in the mill 
 nights." Held, taking all the questions and 
 answers together, it was not intended that 
 any portion of the Sabbath was to be violated 
 by service labor; the answer, "There is a 
 watchman nights," was not to be construed to 
 mean every night. Bipley v. Aator Ins. Co., 
 17 How. Pr., 444. 
 
 3. Policy founded upon a written survey in 
 the form of questions and answers, among 
 which were the following : " Is there a watch- 
 man in the mill during the night?" " Is there 
 also a good watch clock ?" Ans. " There is a 
 watchman nights." " No clock." " The bell 
 is struck every hour from 8 P. M. till it rings 
 for work in the morning." " Is the mill left 
 alone at any time after the watchman goes off 
 duty in the morning till he returns to his 
 charge in the evening?" Ans. " Only at meal 
 times, and on the Sabbath day, and other days 
 when the mill dees not run." No watchman 
 was in the factory from twelve o'clock Satur- 
 day night till twelve o'clock Sunday night, 
 and the fire occurred while he was not there. 
 Seld, the questions and answers taken together 
 were warranties ; that both parties must have 
 understood the questions and answers to refer 
 to every night ; that parol evidence could not 
 be received to show that insurer's agent at the 
 time the policy was made, knew that a watch- 
 man was not kept -in the factory from twelve 
 o'clock Saturday night till twelve o'clock 
 Sunday night. Ripley v. ^tna Int. Co., 30 N. 
 Y., 136; s. c, 29 Barb., 553. 
 
 4. Insured sent a policy for this company 
 to make another exactly like it. It provided, 
 " Two watchmen employed, one of whom shall 
 be on duty at all times," but in a subsequent 
 part, these words were written: "One watch- 
 man waived," — which words were omitted 
 in this policy. She took fire at Cairo, while 
 her watchmen were at supper at their board- 
 ing house on the bank of the river. No cook- 
 ing was done on board, and it was the custom 
 for watchmen to eat their meals away from the 
 boats when lying in port. Held, it was proper 
 to let the jury determine from the evidence 
 whether one watchman was waived; that it 
 was also proper to submit to the jury whether 
 one watchman was on duty at the time of the 
 loss, for the jury were to determine whether 
 
 144 
 
 when the watchman went on shore to get his 
 supper, there was in fact such a departure 
 from duty, as was contemplated by the parties. 
 Oibion •». Farmers and Merchants Ins. Co., 1 
 Cin. Sup. Ct., 410. 
 
 5. Stipulated: "Watchman to be on the 
 premises constantly during the time, until Sep- 
 tember 1, 1873." The watchman went into the 
 ofiice at about 11 o'clock at night, where he 
 fell asleep and remained until he discovered 
 the premises on fire. The buildings insured 
 were about one hundred and eighty feet from 
 the office, which was not insured. Held, a sub- 
 stantial compliance with the stipulation. An- 
 des Ins. Co. «. Bhipman, 77 111., 189. 
 
 VII. Use, occupation oe employment. 
 
 1. The policy prohibited the carrying on of 
 any business hazardous or extra hazardous 
 enumerated, or storing goodshazardous or ex- 
 tra hazardous, also enumerated. The trade of 
 a grocer was not among the trades enumerated. 
 HeiA, his business was neither hazardous nor 
 extra hazardous, for the expression of one is 
 the exclusion of all others. Nem YorTc Equit- 
 able Ins. Co. V. Langdon, 6 Wend., 623; affirm- 
 ing B. c, 1 Hall, 226. 
 
 2. Application for insurance stated : " Build- 
 ing is fastened up, and only used for the ptu:- 
 pose of the meeting of the band during two 
 evenings of the week, on the second floor." 
 Held, a warranty of the then existing situation, 
 but it was not to be extended by construction; 
 that it was not intended that the building 
 should remain fastened up and unoccupied 
 during the entire term of the policy. Blood v. 
 Howard Fire Ins. Co., 13 Cush., 472. 
 
 3. Insured was required to state in the ap- 
 plication the nearest buildings, how occupied, 
 and of what materials. To which he answered : 
 " Shop for carpenter on the west, distance 25 
 feet, not much used; no otlier buildings with- 
 in 200 feet on the same side of the street. One 
 frame building on the other side of the street, 
 distance 80 feet." There was a stove, for heat- 
 ing, in the carpenter shop. Held, no defense 
 to the action. Girard Fire and Marine Ins. 
 Co. u. StepTienson, 37 Penn. St., 293. 
 
 4. The policy described it as " a warehouse," 
 and stipulated : " No policy shall be construed 
 to extend to any house or shop where any 
 trade or business is carried on requiring the 
 use of fire-heat, unless the same be mentioned 
 
289 
 
 CONSTRUCTION. 
 
 290 
 
 Voyage or voyages insured. 
 
 in the policy, and a proportionable deposit 
 paid, to be agreed upon with the directors." 
 The plaintiffs' tenant erected fumances in the 
 premises, by which he carried on the manu- 
 facture of candy, in the cellar, second and 
 tliird stories, using fire heat in all. While 
 thus used it was consumed by fire. Held, the 
 description and the stipulation taken together 
 prohibited the use of fire heat in the process 
 of, or for the purpose of manufacturing any 
 article of commerce. BUtner <o. EquitaMe Ins. 
 Co., 1 Disney, 412. 
 
 5. Stipulated: "If there shall be kept or 
 stored therein any articles denominated haz- 
 ardous or extra hazardous, or included in the 
 memorandum of special rates, so long as the 
 same shall be appropriated, these presents 
 shall cease;" also: " No greater amount than 
 25 lbs. of gunpowder shall be placed at any 
 time in the building described in this policy." 
 Insured kept from four to six pounds of pow- 
 der in his store. Gunpowder was included in 
 the memorandum of special rates. Held, the 
 two clauses will harmonize if one be under- 
 stood as modifying the other ; tlie general was to 
 be controlled by the special clause, for, to give 
 a preponderating importance to the general 
 provision would interpolate a material qualifi- 
 cation upon the special clause; that keeping 
 less than 25 lbs. of powder did not affect the 
 right of the insured to recover. Bmoman e. 
 Padfielm. Co.,21 Mo., 152. 
 
 6. Stipulated : " The insured shall describe 
 the building in which goods insured are de- 
 posited; also state whether any hazardous 
 trade is carried on therein, or any hazardous 
 goods are deposited therein ; and if any per- 
 son shall insure his goods or buildings and 
 cause them to be described otherwise tlian 
 they really are, to the prejudice of Oie in- 
 surers, the policy shall be void." Held, lim- 
 ited to the time the insurance was effected; 
 that a business might be introduced, more haz- 
 ardous than that carried on at the time the 
 policy was made, and be no violation of the 
 condition. Pirn e. Seid, 6 M. & G., 1 ; 6 Scott, 
 N. R., 983; 12 L. J. C. P., 299. 
 
 YIII. Voyage oe voyages instjeed. 
 
 1. $10,000 on cargo at and from Alexandria 
 
 to St Thomas and two other ports in the West 
 
 Indies, and back to her port of discharge in 
 
 the United States, and shall so continue until 
 
 10 
 
 the goods shall be safely landed. Held, it was 
 an insurance upon every successive cargo 
 taken in the course of the voyage out and home, 
 and so covered a return cargo purchased with 
 the prcfceeds of the sales of the outward cargo ; 
 and the fact that a portion of the original 
 cargo had been safely landed at an interme- 
 diate port, before the loss, was immaterial. 
 Columbian, Ins. Co. •». Catlett, 12 Wheat., 383. 
 
 2. On the freight of the bark Margaret 
 Hugg, at and from Baltimore to Rio and back 
 to Havana or Matanzas. She put into Nassau 
 in distress on her return voyage, laden with 
 jerked beef, part of which had been jettisoned ; 
 the balance was so badly damaged that some 
 of it was necessarily thrown into the sea, and 
 the smaller part landed and sold because it 
 was unfit for reshipment. Held, the policy 
 was not for one entire voyage from Baltimore 
 out and home, therefore the insurers were not 
 entitled to credit for freight earned upon the 
 voyage from Baltimore to Rio. Hugg v. Aii- 
 gusta Iiisurance and Banking Co., 7 How., 595 ; 
 8. c, Tan. Dec, 159. 
 
 3. Time policy, to expire May 1, 1839, at 
 noon, "excluding during the term all ports 
 and places in Mexico and Texas, also the 
 West Indies from July 15th to October 15th." 
 During the term she went from Boston to St. 
 Josephs, Florida; thence to Havana and 
 thence to New York. September 13th, she 
 sailed from New York for St. Jago de Cuba; 
 arrived there October 1st; sailed thence on 
 her return voyage to New York, October 25th, 
 and was wrecked December 15th, in Long 
 Island Sound. Held, the language was sub- 
 ject to various interpretations; it might be 
 construed to prevent the vessel from being 
 employed in any voyages from Mexico, Texas 
 or the West Indies between July 15th and Oc- 
 tober 15tli, which would release the insurers; 
 or it might be construed. as permitting such 
 voyages to and from Mexico, Texas and the 
 West Indies during the excluded period, but 
 exonerating the insurers for losses in the 
 course thereof, which would discharge the in- 
 surers from tills loss; or it might be consti'ued 
 as exempting insurers from all risks and 
 losses in ports and places in Mexico, Texas 
 and the West Indies between July 15th and 
 October 15th ; and, if such a construction were 
 placed on it, the present loss would be within 
 the policy ; where there is any ambiguity in 
 the words used, they are to be construed most 
 
 145 
 
291 
 
 CONSTRUCTION. 
 
 292 
 
 Voyage or voyages insured. 
 
 strongly against the party for whose benefit 
 they were introduced, for iierba cha/rtarum for- 
 tius aceipiunter contra proferentem, and there- 
 fore the loss was within the policy. Palmer v. 
 Warren Im. Co., 1 Story, 360. 
 
 4. "At and from Tobago to one or more 
 ports in the West Indies, and at and from 
 thence to Norfolk, against all risks ; blockaded 
 ports and Eispaniola excepted." ^he sailed 
 from Tobago for Curacoa, then blockaded in 
 fact ; but when she sailed the blockade was 
 not known at Tobago, nor was it known to 
 the master until he was warned off by a Brit- 
 ish ship of war. He then made for Norfolk, 
 but was captured on the voyage by a Prench 
 privateer. Held, the exception took a partic- 
 ular risk out of the policy, which but for the 
 exception would have been within it; and a 
 voyage to Hispaniola was not insured; had 
 she sailed for Hispaniola the voyage would 
 have been entirely at the risk of the insured, 
 for it was a place specified and particularly 
 excluded ; but the same reasoning could not 
 apply to blockaded ports, for the "risk of a 
 blockaded port excepted," was the risk in- 
 curred by breaking the blockade ; hence sail- 
 ing from Tobago for Curacoa, with knowl- 
 edge that it was blockaded, would have in- 
 curred that risk; but sailing for it in igno- 
 rance of its blockade was not within the ex- 
 ception, for insurer had no objection to Cur- 
 acoa, other than what might arise from its 
 being blockaded ; the dangers of the blockade 
 were the particular dangers which induced 
 the exception ; the exception therefore ought 
 not to be extended beyond the danger con- 
 templated. Teaton v. Fry, 5 Cranch, 335. 
 
 5. "Upon all kinds of lawful goods and 
 merchandises, laden or to be laden, etc., be- 
 ginning the adventure from and immediately 
 after the loading thereof, from July 10, 1820, 
 and so to continue until they shall be safely 
 landed on January 10, 1827, at noon." Held, 
 it covered a trading voyage, which did not 
 end at the first port made by the vessel; that 
 it was equivalent to a trading voyage ex- 
 pressed, with liberty to touch and trade at 
 such ports on the globe as the insured might 
 choose, subject to the accustomed and usual 
 mode of transacting business at the several 
 places she might visit; and that however 
 often the goods might be changed, the policy 
 attached to all of them, and included goods 
 lost in their passage from the shore to the ves- 
 
 146 
 
 sel, in the lighter of the insured, if these were 
 procured with the proceeds of goods upon 
 which the policy had attached. OoggeahaU v. 
 American Int. Go., 8 Wend., 283. 
 
 6. On ship at and from New Orleans, Cam- 
 peachy and Havana, for a period of six cal- 
 endar months. Held, it was not an insurance 
 from New Orleans to Campeachy and Havana 
 and back to these several places; but it was 
 an insurance for six months on a trading 
 voyage or voyages, at and from either of tho 
 ports named, without restriction, for six 
 months; and that the vessel having arrived at 
 Havana when the limitation of time was not 
 reached, the policy covered a loss on a voyage 
 from Havana to New York. Or<rm%et ». Sea 
 Ins. Go., 24 Wend., 210. 
 
 7. Upon ship and her outfits. Stipulated : 
 " No vessel shall sail from the harbor of Glou- 
 cester on any voyage east of Cape Sable after 
 November 10th next, at noon, or on a trip to 
 Georges after November 15th next, at noon; 
 nor shall any vessel sail on any voyage what- 
 ever after November 25th next, at the risk of 
 this company." She sailed from Gloucester 
 November 13th, on a voyage to Eastport, for 
 the purpose of procuring bait for a fishing 
 voyage, and when within one hundred miles 
 thereof, she was driven ashore near Penobscot 
 Bay, about twenty -five miles from the coast of 
 Maine. Held, if she was pursuing a voyage 
 east of Cape Sable, she was not protected by 
 the policy; the word voyage did not neces- 
 sarily mean route, though often used in that 
 sense. It meant enterprise. If she left Glou- 
 cester with a purpose of going on a voyage 
 east of Cape Sable, liable to be defeated on her 
 going to Eastport, then the plaintiflEs could 
 not recover; and in order to recover, the 
 plaintiffs must show that the vessel was not 
 on a prohibited voyage. Friend v. Oloucetter 
 Im. Co., 113 Mass., 326. 
 
 8. Time policy, six months from September 
 8, 1794, " Beginning the adventure from the 
 loading thereof on the said vessel and so shall 
 continue and endure till March 8, 1795, and to 
 continue at the same rate of premium till her 
 next arrival at Pliiladelphia. To be valued as 
 interest shall appear. Warranted American 
 property." She loaded at Hamburg Septem- 
 ber 8, 1794, with a cargo valued at $5,333, and 
 sailed for Philadelphia. On her passage, Sep- 
 tember 14th, she was stopped by a Freneli 
 privateer, carried into Dunkirk, where the 
 
293 
 
 CONSTRUCTION. 
 
 2.94 
 
 Voyage or voyages insured. 
 
 supercargo was permitted to sell the cargo on 
 account of tke owners. There she tools a 
 small cargo valued at $1,500, and sailed for 
 Hamburg, but was carried into F.almouth by 
 a British privateer, and after sustaining an 
 average loss of £90, was released and reached 
 Hamburg towards the end of October. There 
 she took cargo valued at $3,500 and sailed for 
 Philadelphia, where she arrived February, 
 1791. JET^d, insurers were entitled to recover 
 premium on the value of the different cargoes 
 for the time they were respectively on board, 
 less the average loss. FoUock e. Donaidson, 3 
 Ball., 510. 
 
 9. Two policies each $5,000. One on oil in 
 bulk or barrels on board good barges, trading 
 between the wells on Oil Creek, Allegheny 
 River, and Pittsburgh. The other on the 
 same, between Oil City and Pittsburgh. The 
 wells on Oil Creek were above Oil City, which 
 was at the mouth of Oil Creek. A quantity 
 of oil put into a barge at the wells was car- 
 ried to Oil City, where more oil in bulk was 
 added, making 743 barrels in the hold in bulk, 
 and forty barrels were put on deck. Also 140 
 barrels of oil were put on a steamboat, and the 
 barge was towed by the steamboat to Forsyth's 
 Landing near Pittsburgh, where the oil in 
 barrels was taken from the barge, and that on 
 the deck of the steamer transhipped to the 
 deck of the barge for the purpose of being 
 landed. The steamer then departed, leaving 
 the barge safely moored. Next morning she 
 was submerged at the stern, five barrels from 
 the deck lost, and all the oil in the hold gone. 
 There was some evidence of an injury on the 
 side of the barge, as if some floating object 
 had struck her. Held, insured were entitled 
 to recover on both policies; that the points 
 mentioned were descriptive of the barges and 
 not of the freight; that the risk attached 
 wherever the petroleum was taken on board 
 between the points mentioned. Phcenix In*. 
 Co. V. Cochran, 51 Penn. St., 143. 
 
 10. At and from Jamaica to London. She 
 was at anchor at Port Maria, Jamaica, a very 
 hazardous station ; and as soon as completely 
 loaded, sailed for Port Antonio, the Jamaica 
 rendezvous for convoy, intending to remain 
 there for convoy, but was lost between Port 
 Maria and Port Antonio. Held, the policy 
 protected her from port to port. Gruickshank 
 V. Janion, 3 Taunt., 301. 
 
 11. Liberty to cruise six weeks means six 
 
 weeks successively from the commencement 
 of the cruise. Syers v. Bridge, 3 Doug., 527. 
 
 12." From Cape of Good Hope, Botany Bay, 
 Port Jackson, or all ports and places in New- 
 South Wales, New Holland, Van Dieman's 
 Land or the islands adjacent, and all or any 
 ports and places backwards and forwards or 
 in any other manner beyond Cape Horn, all 
 or any islands and all ports and places in the 
 East Indies, Persia, China or on the northwest 
 coast of America; and to and from all ports 
 and places of whatsoever denomination wher- 
 ever, after her departure from the Cape of 
 Good Hope, and at all times whatsoever until 
 her safe arrival and discharge at Canton, with 
 leave to sell and resell, barter, exchange and 
 reSxchange property, and to load or unload 
 in part or whole at all, every or any port or 
 place, without inquiry into the regularity of 
 her proceedings, to continue and endure dur- 
 ing her abode there until she shall be arrived 
 as above, with leave to touch and trade at all, 
 any or every, ports and places in the East In- 
 dies, Persia, China, and at all ports and places 
 of whatever denomination or in whatever lati- 
 tude or longitude, either on her outward or 
 homeward bound voyage." She was licensed 
 by tjie East India company from England to 
 the Cape, thence to the Pacific Ocean, and 
 thence to the northwest coast of America, to 
 trade and traffic there ; thence to Japan, Corea 
 and Canton, and to return to England ; to be 
 in force three years. She was lost in the 
 Pacific Ocean after she had abandoned all in- 
 tention of proceeding to Canton. Seld, the 
 insured was entitled to recover. Norville v. 
 St. Barbe, 5 B. & P., 434. 
 
 1 3. On goods from L., to a great many places 
 in China, or to all or any other port or ports 
 or places in China, East Indies or the Indian 
 and China seas, the Gulf of Siam or seas adja- 
 cent. Canton, Manilla and Singapore, with leave 
 for the ship or any vessel or vessels, on board 
 which the interest may be transhipped, etc." 
 At the time she sailed, her destination was un- 
 certain, because England and China were at 
 war. She was badly damaged off the Cape 
 of Good Hope and took in much water, which 
 damaged the cargo very considerably. An- 
 other ship was sent to Hong Kong to take the 
 cargo, there being no warehouses there ; and 
 while this was being done, the vessel into 
 which the cargo was transhipped, broke from 
 her moorings, was driven ashore, and the 
 
 147 
 
295 
 
 CONSTRUCTION. 
 
 296 
 
 War risks. 
 
 goods lost. Held, the only question was, 
 " With what intention was the transhipment 
 made at Hong Kong." OUverson v. Briglitman, 
 1 0. & K., 360 ; s. c. (upon the same state of 
 facts, it was hdd, that the insurers were liable), 
 3 Q. B., 781; 15 L. J. (N. 8.), Q. B., 374; 10 
 Jur., 875. 
 
 14. "At and from New Torls to Quebec, 
 during her stay there, and thence to the U. K., 
 warranted to sail from Quebec on or before 
 November 1, 1853." She sailed from New 
 Yorls for Quebec, October 15th, and was lost 
 before she arrived there. Plea: That during 
 the whole of November 1, 1853, she was at sea 
 safely proceeding from New Torli to Quebec ; 
 that she did not awive at Quebec before No- 
 vember 1, 1853 ; that she was not lost by any 
 perils in the policy insured against before 
 November 1, 1853 ; that slie was lost several 
 days thereafter, and that the time of her sail- 
 ing from New York for Quebec was not at 
 that season of the year reasonably sufficient 
 to enable her to fulfill the warranty of sailing 
 from Quebec, November 1st. Held, it should 
 be construed, warranted to sail from Quebec 
 on or before November 1, 1853, if she arrives 
 there by that time; that unless such a con- 
 struction was placed on it, there would be no 
 insurance whatever between New York and 
 Quebec; tliat any other construction would 
 make the warranty read, " To sail from New 
 York in such time as to arrive at Quebec 
 November 1, 1853." Baines ii. Holland, 10 
 Exchr., 803. 
 
 IX. Wak EISKS. 
 
 1. If the policy does not warrant the prop- 
 erty neutral, and the national character of the 
 ship is not warranted, the insui-er assumes 
 belligerent as well as neutral risks. Biting v. 
 Scott, 3 Johns., 157. 
 
 2. On cargo at and from Boston to every 
 port or place to which she might proceed, 
 taking the usual risks, stipulated: "The 
 Diana is cleared for Rio Janeiro and north- 
 west coast; has goods contraband of war, and 
 has no register; this insurance is not against 
 illicit trade with the Spaniards, but is under, 
 stood to cover the property under whatever 
 papers she may sail." Being bound to Lima, 
 she arrived oflf Callao, and before traffic took 
 place the government took possession of her, 
 unloaded the cargo and sold it, placing the 
 
 148 
 
 proceeds in the treasury until the king of 
 Spain's pleasure should be known. Held, the 
 loss was not within the policy. Higgintcm u. 
 PoTneroy, 11 Mass., 104. 
 
 3. On goods and on commissions as con- 
 signee. The insurers were exempted from 
 " all loss and expense that may arise from the 
 ordinary dangers and perils of the seas." HM, 
 the exemption took away all risks except cap- 
 tures, arrests, detentions, etc. ; and that a loss 
 in consequence of thick weather, in which 
 she was cast away and went to pieces, was not 
 within the policy, although she had previously 
 been boarded by a British sloop of war, who 
 had taken out part of her crew, put a prize- 
 master and nine men on board, and ordered 
 her to Halifax, to which port -she was bound 
 when lost. Law v. Goddard, 13 Mass., 113. 
 
 4. On ship and cargo from Boston to port 
 or ports in Europe — stipulated: "The in- 
 surers, in case of restraint, are exempted from 
 plunder, waste and expense, and from capture 
 and condemnation, by all powers; but they 
 agree to take the dangers of the seas and the 
 perils in the policy not excepted, even while 
 detained and afterwards." On the passage 
 out, she suffered sea damage to three-fourths 
 her value, aad one-fourth her cargo was 
 thrown overboard to preserve lives of crew, 
 ship and balance of cargo, and she was forced 
 to put into France, where ship and cargo were 
 seized by the government. Held, the capture 
 was within the exception, and the insurers 
 were liable for so much of the cargo only as 
 was thrown overboard Jtice v. Homer, 12 
 Mass., 330. 
 
 5. Policy taking the usual risks does not 
 include the risk of condemnation for a breach 
 of the trade laws of a foreign country, unless 
 the voyage be to a place where no legal trade 
 can be carried on, in which case the risk of 
 condemnation will be presumed to have been 
 within the intentions of the parties. Parker n. 
 Jonm, 13 Mass., 173. 
 
 6. The policy excepted loss " arising from 
 the existing laws or regulations of any bel- 
 ligerent powers restricting neutral commerce." 
 Held, the insurer was liable for a loss caused 
 by violating the decree of a belligerent power 
 made after the execution of tlie policy. Wood 
 V. New England Marine Ins. Co., H Mass., 31. 
 
 7. Policy to E. on a cargo of coffee, dated 
 December 34, 1860, from Rio to Richmond, or 
 some other Atlantic port in the ITnited States- 
 
297 
 
 CONSTRUCTION. 
 
 298 
 
 Expressio unius est exdudo alteiius — Generally. 
 
 Tlie owners of the ship, insurers and insured, 
 were all citizens of Virginia. She was cap- 
 tured and condemned by the United States as 
 a lawful prize, on the ground that it was 
 enemies' properly. Held, a loss within the 
 policy. MercUanti Jns. Co. v. Edmond, 17 
 Grattan, 138. 
 
 S. So long as insuring the property of a 
 foreigner is not contrary to the law of Eng- 
 land, the person who insures it must be con- 
 sidered as putting himself in the same situa- 
 tion as the foreigner; and if the insurer has 
 undertaken to iudemni^ the insured against 
 loss by enemies, that must mean enemies of 
 the state of which the insured was a member. 
 BuOer v. Wildman, 3 B. & A., 398. 
 
 X. EXPKESSIO TTNITTS EST EXCLUSIO AL- 
 TEEItrS. 
 
 1. " On steamer, her hull, boilers, machinery, 
 tackle, furniture, etc., against loss that shall 
 happen by fire, other than fire happening by 
 mesins of any invasion, insurrection, or civil 
 commotion, or any military or usurped 
 power." She collided with a schooner, in 
 consequence of which she rapidly filled with 
 water, and within ten or fifteen minutes the 
 water reached the floor of the furnace, and the 
 steam thereby generated forced the fire out, 
 which communicated with the wood work 
 and spread rapidly, so that all her upper 
 works and the combustible freight were 
 wrapped in flames, and continued to burn half 
 or three quarters of an hour, when she reeled 
 over and sunk in twenty fathoms of water. 
 Frnm the effects of the collision alone she 
 would not have sunk below her promenade 
 deck, and could have been towed to a place of 
 safety, where vessel, machinery, tackle and 
 furniture could have been repaired and re- 
 stored to former condition for the sum of 
 $15,000, towage included. The submergence 
 was the result of the fire, which burned off her 
 light upper works, liberated the light freight 
 and reduced her floating capacity. The loss 
 by fire was ascertained. Hdd, a loss by flre, 
 the result of any cause other than those ex- 
 cepted, was within the terms of the contract; 
 that the insurers were liable for the damage 
 caused by fire only (aflflrming s. c, 6 filatch., 
 241 ; 34 Conn., 561). Iniurance Go. o. Trant- 
 portation Co., 12 Wall., 194. 
 2. Stlt, grain of all kinds, Indian meal, 
 
 fruits, cheese, dried fish, vegetables, roots, and 
 all other articles perishable in their own na- 
 ture were warranted free from average, unless 
 general. Hdd, Oie expression dried fish, im. 
 plies that other fish were not to be included ; 
 for ei^ressio unius exclugio est aUerius. Baker 
 V. LuxOoa, 2 Johns. C, 290. 
 
 3. Against the perils of the rivers, fire, 
 pirates, assailing thieves, etc. A number of 
 causes of loss were then excepted, but loss by 
 grounding was not one of them. The boat 
 grounded on a bar in the Mississippi river. 
 Meld, as grounding was not among the ex- 
 cepted causes of loss, it was within the policy. 
 Firemen's Ins. Co. v. PoweZl, 13 B. Mon., 311. 
 
 4. " On plate glass, against damage from any 
 cause except fire, breakage during removal, al- 
 teration orrepair of premises." A flre occurred 
 on the adjoining premises, slightly damaging 
 the rear of these. Whilst the plaintiff and his 
 neighbors were removing his stock to a place 
 of safety, a mob, attracted by the fire, tore 
 down the shutters and broke the windows for 
 the purpose of plunder. Held, the loss was 
 not within the exception. Marsden v. City and 
 County Ass. Co., 1 L. R. C. P., 232; s. c, 13 
 Jur. (N. S.). 70; 35 L. J. C. P., 60; 1 H. & R., 
 53; 14 W. R., 106; 13 L. T. (N. S.), 465. 
 
 XI. Geneeajllt. 
 
 1. For Geo. P. Strass and others, of Rich- 
 mond. Held, it did not necessarily imply that 
 the persons not named were uf Richmond. 
 Hodgson c. Marine Ins. Co., 5 Cranch, 100. 
 
 2. " Person or persons " include bodies 
 corporate and bodies politic, as well as nat- 
 ural persons. United States c. Amedy, 11 
 Wheat., 392. 
 
 3. In construing a policy, the rule is that 
 the language shall be taken most strongly 
 against the insurer, for it is signed by him 
 and not by the insured, and all its exceptions 
 and reservations are of the insurer. Insurant 
 Companies c. Wright, 1 Wall., 456. 
 
 4. In construing answers or representations 
 made by the insured, if the words used are am- 
 biguous, so as to lead to different conclusions, 
 that wliich is most favorable to the insured 
 must be adopted, because the insurer could 
 have removed all doubt by requiring further 
 explanations. Nieoll o. American Ins. Co., 3 
 W. & M., 529. 
 
 5. A representation that insured is a natu- 
 
 149 
 
299 
 
 CONSTRUCTION. 
 
 300 
 
 Generally. 
 
 ralized citizen since the year 1784 means he 
 ■was naturalized not after the year 1784. Cou- 
 lon V. Bowne, 1 Caines, 388. 
 
 6. Policy on a barque on the stocks, near a 
 ship, in a ship yard. Timbers not united to 
 the keel or structure thereon, completely pre- 
 pared for and intended to be used in its frame 
 work, lying in the yard in a place proper and 
 convenient for that purpose, and valueless for 
 any other, vpere burned. Held, they were not 
 insured. Hood «. Manhattan Ins. Co., 11 N. 
 Y., 533;2Duer, 191. 
 
 7. On cargo by steamers generally cannot 
 be limited to steamers in which the insured was 
 interested, although when the policy was eflfeot- 
 ed, such only were contemplated. New York 
 Marine and Fire Ins. Oo. ». Bobtrts, 4 Du er, 141 
 
 8. $1,800 on grist mill and $700 on ma- 
 chinery. Renewed generally for $3,500. Held, 
 it should be construed largely for the benefit of 
 insured, and that it applied to both the mill 
 and machinery in the aggregate. Driggs v. 
 Albany Ins. Co., 10 Barb., 440. 
 
 9. On canal boat one year. "Not liable for 
 damage caused by ice." She was moored and 
 frozen in at the canal basin at Oswego. In 
 the spring, after the ice broke away in the 
 river, it jammed, which caused an overflow of 
 water; the stern of the boat became loosened, 
 while the bow remained fast in the ice. She 
 was twisted and injured. Held, a loss by ice, 
 for which insurers were exempt. Allison v. 
 Corn Exhange Ins. Co., 57 N. Y., 87. 
 
 10. On stock of ready made clothing, in- 
 dorsed " This policy is transferred to the 
 frame building owned by M., on the east 
 side of Whitehall street, etc." Held, it was 
 not, by the transfer, made an insurance on the 
 building, but attached to ready made stock in 
 that building. Marco v. Liverpool and Lon- 
 don Ins. Co., 35 N. Y., 664. 
 
 11. The by-laws of a mutual insurance 
 company provided that upon alienation of the 
 subject Insured, the msured may surrender the 
 policy and receive a sum not exceeding his 
 deposit money. " All deposit money not de- 
 manded in a year from the expiration of the 
 policy shall be deemed forfeited and become 
 the>property of the society." Held, npoa sur- 
 rcnder of policy, insured shall receive so much 
 of his deposit money as was not liable to legal 
 appropriation by the company. Also, the 
 limitation of time did not mean in a year 
 from the time the risk was terminated by alien- 
 
 150 
 
 ation ; it meant in a year from the expiration 
 of the policy byeflSux of time. Sullimn v. 
 Maaaachuaetts Mutital Fire Ins. Co., % Mass., 
 318. 
 
 12. Insured and one of the insurers agreed 
 to be bound by the final judgment to be ren- 
 dered in an action then pending against one 
 of the insurers. A verdict rendered in favor 
 of the insured during the pendency of review, 
 was compromised. Held, the compromise was 
 not a final judgment. Higginson v. Gray, 8 
 Mass., 385. 
 
 13. On ship and cargo. Stipulated: "Should 
 this vessel and cargo be insured in England, 
 this policy is to be canceled." Held, insurer 
 was liable for the cargo, there being no other 
 insurance on it, although there was insurance 
 in England upon the vessel. Davis v. Board- 
 man, 13 Mass., 80. 
 
 14. Policies of Insurance shall be construed 
 according to the intention of the parties, and 
 not according to the strict literal meaning of 
 the words. CroiMiZZai ®. 5(iZJ, 8 Yeates, 875j 
 4 Dall., 394. 
 
 15. Stipulated: "If insured shall have made 
 any other assurance prior in date to this pol- 
 icy, then the said assurers shall be answcra- 
 ble only for so much as the amount of such 
 prior assurance may be deficient towards fully 
 covering the premises hereby assured." The 
 plaintiflFs made other insurance of the same 
 date, but it was prior in time to defendant's 
 policy. Held, prior in date was equivalent to 
 prior in time, hence it was competent for the 
 defendants to aver and prove the precise time 
 of execution. Brown v. Hartford Ins. Co, 3 
 Day, 58. 
 
 16. If the insurers intended that no prop- 
 erty should be put on board but such as was 
 neutral, they shoiild have insisted upon a rep- 
 resentation to that effect, or expressly war- 
 ranted in regard to it. Baltimore Ins. Oo. v. 
 Taylor, 8 H. c& J., 198. 
 
 1 7. In construing a policy of insurance, the 
 court should give it a fair and liberal interpre- 
 tation, such as under all the circumstances of 
 the case appears most consonant to the inten- 
 tion of the parties. Biggin v. Pat-apseo Ins. 
 Co., 7 fl. & J., 379. 
 
 18. There is not any principle of law which 
 allows the understanding of one of the parties 
 to determine the meaning of the contract; the 
 rule is sometimes applied in cases of ambigu- 
 ity, that words are to be construed most 
 
301 
 
 CONSTRUCTIVE TOTAL LOSS - CONTINUANCE. 
 
 303 
 
 Miscellaneous. 
 
 strongly against the party using them ; that is 
 founded upon a principle of iioncsty and 
 good faith that when a promise or stipulation 
 is susceptible of two meanings, it should be 
 construed and eflectuated in that sense in 
 which the party making it know, or had 
 reason to believe, it was understood and re- 
 ceived by the other parJ^y. Montgomery «. 
 FiremerCi Ins. Co., 16 B. Mon., 427. 
 
 19. "On a lot of brushes for one month 
 laden on the flat boat Rough and Ready, witli 
 privilege of trading up and down the Missis- 
 sippi and Ohio rivers, and with further priv- 
 ilege of continuing the policy for one or more 
 mouths upon payment of premium, excluding 
 from this risk all loss or damage arising from 
 fire or ice." It was renewed January 20th for 
 one month, indorsed: "The within policy is 
 renewed for one month, as hereinafter stated, 
 for the sum of $4,000 on brushes within de- 
 scribed, it being understood that insured is 
 not entitled to claim for any loss or damage 
 arising from ice, etc." It was again renewed 
 for the sum of " |3,000 on brushes within de- 
 scribed, $45 premium for one month." The 
 goods were destroyed by Are. Held, upon the 
 first renewal, ice only was excepted; by the 
 last renewal the original policy and not the 
 second renewal was continued; the original 
 policy excluded fire and ice, consequently in- 
 surer was not liable for loss by fire. Honnick 
 D. Plumix Ins. Co., 22 Mo., 82. 
 
 20. Stipulated: "The company will be 
 responsible for the accuracy of surveys and 
 valuations made by its agents." Held, the 
 word, " survey," could not be limited to mat- 
 ters of measurement or description, for " sur- 
 vey," as here used, has acquired in insurance 
 business a meaning which includes what is 
 commonly called the application (citing 
 Crlendale Manufacturing Co. «. Protection Ins. 
 Co., 21 Conn., 19). May «. Buckeye Ins. Go., 
 25 Wis., 291. 
 
 21. It was agreed that all should be bound 
 by the verdict given in one case. There was 
 a verdict for the plaintiff and a new trial 
 awarded. Held, it meant a verdict.that should 
 stand. Hodson v. RlcTMrdson, 3 Burr., 1477. 
 
 22. Policy to an agent upon a ship " at and 
 from Lisbon to Cadiz and at and from thence 
 to Flushing; to return eight per cent, if she 
 sailed from Cadiz with convoy for England, 
 and two per cent, more for convoy from Eng- 
 land to Flushing, or ten per cent, if with con- 
 
 voy for the voyage and arrived." Held, the 
 stipulation for return premium should be 
 read: To return ten per cent, if the ship sails 
 with convoy for the voyage and arrives ; if 
 from Cadiz with convoy for England, eight 
 per cent. ; and two per cent, more for convoy 
 from England to Flushing. In this mode of 
 arranging the provisions, respecting the re- 
 turn of premium, the word arrive is naturally, 
 in point of construction, carried forward and 
 united successively with each branch of these 
 provisions, and operates plainly as a con- 
 dition equally affecting them all. Kellner v. 
 Le Mesurier, 4 East, 396 ; 1 Smith, 72. 
 
 23. The proposal for reinsurance stated 
 "Valued at £6,000; insured only for £4,000." 
 Insurances in other oflSces, £1,500; Adelaide, 
 £500; Australasia, £350 ; Netherlands, £500; 
 India, £1,250. P.LCo." 2?«M, the words " in- 
 sured only for £4,000 " must be construed as the 
 amount of insurance made by the original 
 insurance, and not a representation that all 
 the insurance amounted to only £4,000. An- 
 derson 9. Pacific Fire and Marine Ins. Co., 21 
 L. T. N. S. P. C, 408. 
 
 CONSTRUCTIVE TOTAL LOSS. 
 
 (See Total Loss.) 
 
 CONTRABAND OF WAR. 
 
 (See iLuciT Tbass.) 
 
 CONTINUANCE. 
 
 1. The defendant moved for a continuance, 
 alleging that a commission to take depositions 
 had not been returned, though due diligence 
 had been used in forwarding it. Held, the ap- 
 plication for a continuance was properly over- 
 ruled, because the affidavit did not state that 
 the testimony sought would be procured with- 
 in a reasonable time. Thompson, v. Missis- 
 sippi Marine and Fire Ins. Co., 2 La. (0. S.), 
 228. 
 
 2. Upon the trial, insured obtained leave to 
 
 151- 
 
COS 
 
 CONTRACT. 
 
 304 
 
 What is paxt. 
 
 amend by inserting the policy and its con- 
 ditions in his complaint. Insurers moved 
 for time to file a new answer, and made affida- 
 vit that the amendment was a surprise, and in 
 consequence thereof, tliey were not prepared 
 ■with evidence to meet the new allegations. 
 But the insurer's answers, on file in the cause, 
 ■were applicable to the cause of action exlii- 
 bited by the amended complaint. Held, the 
 motion to continue was properly overruled. 
 Bonner v. Home Ins. Co., 13 Wis., 677. 
 
 I. 
 
 II. 
 
 III. 
 
 IV. 
 
 V. 
 
 VI. 
 
 VII. 
 
 VIII. 
 
 IX. 
 
 X. 
 
 XI. 
 
 XII. 
 
 XIII. 
 
 XIV. 
 
 CONTRACT. 
 
 What is part. 
 
 NOT PAKT. 
 COiTPLBTE. 
 
 not complhte. 
 Modification ob substitution. 
 Execution and delitebt. 
 New promise. 
 Continuing. 
 Ratification and adoption (pro and 
 
 eon). 
 Lawful. 
 Unlawtul. 
 Effect of wab. 
 When several. 
 When joint. 
 
 I. What is paet. 
 
 1, The plaintiff had been the local agent of 
 the defendant in the city of St. Louis, and had 
 served under a letter written by the company, 
 which stated, "Your status is this: Tou are 
 there working up a business for yourself, and 
 are to be paid the highest commissions we pay 
 to any agent." Held, the plaintiff might show 
 by parol the highest commissions or best 
 terms paid by the defendant to any of its 
 agents who performed duties similar to those 
 jierformed by the plaintiff; but a usage, among 
 other insurance companies doing business in 
 St. Louis, to pay commissions on renewal 
 premiums or the commuted value thereof for 
 the time the policy or policies were in force, 
 to agents after they ceased to act as agents, 
 was inadmissible, for the letter established the 
 contract, which could not be construed in 1 
 153 
 
 parts, but must be taken altogether. Partridge 
 V. Life Ins. Co., 1 Dil. Cir. C, 139. 
 
 2. The policy was printed on one-half of 
 the sheet, and conditions were printed on the 
 other half, but no reference was made to them 
 in the policy. Hdd, they were part of the 
 policy, and a violation of any of them avoided 
 the policy. Boierit v. Chenango Oounly Mvt. 
 Lis. Co., 3 Hill, 501. 
 
 3. Conditions in the proposals for insurance, 
 attached to and referred to in the policy, are 
 part of the contract. Duncan v. Sun Fire Ins. 
 Co., 6 Wend., 488. 
 
 4. A paper purporting to be conditions of 
 insurance annexed to a policy is prima facie 
 a part of it, although no express reference is 
 made in the policy to it; and where theap. 
 plication is signed by the insured, and the 
 policy refers to it as » part thereof, it is a part 
 of the contract. Murdoch v. Chenango County 
 Mut. Ins. Co., 3 N. Y., 210. 
 
 5. Suit upon a note made as security for 
 dealers, under an agreement that it should be 
 paid in premiums for insurance, which the 
 maker might procure for his friends or for 
 himself. Held, the receiver could not repudi- 
 ate that agreement, though made without a 
 formal vote of the directors. Emmet v. Seed, 
 8N. Y., 312; 4 Sand., 229. 
 
 6. Policy founded upon an application ex- 
 pressed to be the application of the insured. 
 Seld, tlie plaintiff must enforce the contract 
 with the application as part of it. Brown v. 
 Cattaraugus Mut. Ins. Co., 18 N. Y., 385. 
 
 7. Policy made subject to condition and 
 survey. Seld, they all made one contract. 
 XeiJoy V. Market Fire Ins. Co., 39 N. Y, 90. 
 
 8. The policy was made subject to survey 
 No. 280, filed in the office of the Park Ins. Co. 
 The issue was, whether the paper put in evi- 
 dence as that survey was designed or intended 
 as the paper mentioned and described in the 
 policy. The court instructed the jury that 
 they should determine, as a question of fact, 
 whether the minds of the parties met as to the 
 survey in question ; that though their minds 
 did not meet on that question, the plaintifi 
 was still entitled to recover on the policy. 
 ffeld, error. ZeBoff v. Market Ins. Co., 45 N. 
 Y., 80; s. c, 39 N. Y., 90. 
 
 9. Application for insurance not to exceed 
 $10,000 gold on cargo " Valparaiso to New 
 York." On wool, valued at 18 cents^per pound 
 until otherwise agreed; ores, etc., valued at 
 
305 
 
 CONTRACT. 
 
 306 
 
 What is part. 
 
 invoice cost and fifteen per cent, added, priv- 
 ilege to load not exceeding twenty-flve per 
 cent, registered ores. She was hurned with 
 cargo on board, |56,253. Applications had 
 heen made to other companies, prior to the 
 making of this, for other insurances, which 
 amounted in all to about $160,000. All of 
 defendant's policies provided: "If insured 
 shall have made any other insurances upon 
 the premises aforesaid, prior in date to this 
 policy, then this company shall be answera- 
 ble only for so much as the amount of such 
 prior insurance may be deficient towards fully 
 covering the premises hereby insured, and 
 shall return the premium upon so much of 
 the sum insured as they shall by such prior 
 insurance be exonerated from, etc." Held, ev- 
 idence was admissible to show that in effect- 
 ing insurance upon property of this character, 
 where the precise value was not known, appli- 
 cations were made to different companies for 
 different suras, amounting in the aggregate to 
 the value of the property supposed to be at 
 risk, which were accepted and made binding 
 until the exact value of the property could be 
 ascertained, and when ascertained, apportioned 
 among the different companies, who had made 
 tlie risk binding, in proportion as the amount 
 taken by each company should bear to the 
 whole estimated amount, and hence insured 
 were entitled to a policy for $3,688.72, and a 
 judgment therefor with interest. Fahlri v. 
 Phmnix Ins. Co., 55 N. T., 129; Fa^bri v. Mer- 
 cantile Mut. Ins. Co., 6 Lans., 446; s. c, 64 
 Barb., 85. 
 
 10. The application stated : " The applicant 
 hereby covenants and agrees, that the forego- 
 ing valuation, description and survey are true 
 and correct. They are submitted as his war- 
 ranty, and tlie basis of the desired insurance." 
 The only reference in the policy to the appli- 
 cation was in these words: " On the following 
 property as described in the application." 
 Held, the description was adopted and nothing 
 else; that there was no warranty as to value. 
 Owens V. Holland Purchase Ins., Oo., 56 N. Y., 
 565; s.c-lN.Y. S. C, 285. 
 
 H. Stipulated: "Reference being had to 
 the application of the said E., for a more par- 
 ticular description, and forming part of this 
 policy." Held, the application was part of the 
 contract. Bgan v. Mutual Ins. Co., 5 Denio, 
 326. 
 
 12. On his flouring mill. Stipulated: 
 
 "When a policy is made and issued upon 
 a survey and description of certain property, 
 such a survey and description shall be deemed 
 to be a part and portion of such policy and 
 a warranty on the part of the insured." It re- 
 ferred to survey No. 18,611, filed in the office 
 of the People's Ins. Co. The defendant offered 
 to prove that the risk was taken by a person 
 connected with the latter company; that it 
 was shown to the secretary of the defendant 
 who was requested to issue a policy upon it, 
 which was accordingly done. It was con- 
 ceded that the defendant did not expect to 
 connect the plaintiff with the survey. Held, 
 it was error to exclude the evidence tendered. 
 Stewa/rd v. Phcenix Fire Ins. Co., 5 Hun. (N. 
 T.), 261. 
 
 13. The husband made an application and 
 acted for the wife in procuring the execution 
 of the policy upon his own life, which was 
 delivered to the defendant's agent, remaining 
 in his hands for about two months. The agent 
 made known this fact to defendant, who in- 
 structed him to retain it until he should be 
 furnished by the plaintiff with a certificate of 
 the good health of her husband. Such a cer- 
 tificate was sent, and upon the trial was offered 
 as against the plaintiff, and rejected. The de- 
 fendant also offered to prove that the cer- 
 tificate was false, because the husband, at the 
 time it was made, suffered from ulceration of 
 the lungs. Held, error, for the policy was 
 procured by the husband in compliance with 
 a condition made by the defendant. The wife 
 ratified the husband's acts, and by accepting 
 the policy and bringing suit upon it, made 
 them her own. She could not affirm in part 
 and repudiate in part. She could not claim 
 to enforce the policy as valid and ignore the 
 instrumentalities by which it was obtained 
 (citing Baker v. Union Mutual Life Ins. Co., 
 43 N. Y., 288; National Life Ins. Co. «. Minch, 
 53N. Y., 149; Blwell «. Chamberlain, 31 N. 
 Y., 619 ; Graves «. Spier, 58 Barb., 349 ; Swift v. 
 Massachusetts Mutual Life Ins. Co., 12 Al. 
 L. J., 363). Estes «. World Mutual Life Ins. 
 Co., 6 Hun. (N. Y.), 349.) 
 
 14, R. procured insurance on his property. 
 After his decease the policy expired. His 
 executrix applied to the agent, who had issued 
 it, to insure the estate of R., a certain amount 
 upon the factory and a certain amount upon 
 movable machinery therein, "subject to a 
 survey on file in this office." Held, tlie ovigi- 
 
 153 
 
3or 
 
 GONTRACT. 
 
 308 
 
 What is part. 
 
 nal survey upon which the former policy 
 ■was issued was no part of this contract, ex- 
 cept for the purpose of identifying the prop- 
 erty insured. Clinton v. Hope Ins. Co., 45 N. 
 y., 454; B.C., 51 Barb., 647. 
 
 15. The policy referred to the application 
 for a more particular description of the sub- 
 ject insured. Held, the application was part 
 of the contract. Shoemaker v. Glens Falls Ins. 
 Co., 60 Barb., 84. 
 
 1 6. Stipulated : " The application must con- 
 tain a full and true exposition of all facts and 
 circumstances in regard to condition, sitd- 
 ation, value and risk of the property, so far 
 as known to insured." The application re- 
 quired an examination of the mill every thirty 
 minutes after work should be discontinued. 
 It was stated that the mill was worked from 
 5 A. M. to 8 : 30 P. M. ; sometimes extra work 
 will be done in the night. Held, the apx)lica- 
 tion was part of the contract, the answers 
 contained in it were representations, and so 
 far as they were material to the risk, must be 
 substantially true; and so far as they were 
 executory, there must be a substantial com- 
 pliance; that the court was bound, as matter 
 of law, to require an examination of the mill 
 every thirty minutes after the work ceased; 
 but when it ceased was a question of fact for 
 the jury. Houghton v. Manufacturers Mut. 
 Ins. Co., 8 Met., 114. 
 
 17. The policy referred to a survey, con- 
 sisting of questions and answers. Held, the 
 whole survey was incorporated into the pol- 
 icy, and they constituted one entire contract. 
 Sheldon v. Ha/rtford Fire Ins. Co., 22 Conn., 235. 
 
 18. If the policy refers to the application 
 as part thereof, it is a part of the contract. 
 Philirook v. New England Mutual Fire Ins. Co., 
 87 Me., 137. 
 
 ■ 19. If the charter and by-laws are referred 
 to as part of the policy, they are binding 
 upon all parties. Marshall v. Columbian Mii- 
 tual Fire Ins. Co., 27 N. H., 157. 
 
 20. The written instructions to insure re- 
 quired insurance, $12,000 on goods and cash, 
 from Port de Paix to Philadelphia. The pol- 
 icy was made to insure goods and merchan- 
 dise, and it stipulated: "Beginning the ad- 
 venture from and immediately following the 
 loading thereof at Port de Paix." Held, the 
 written instructions or memorandum should 
 control and explain the expressions in tlie 
 formal policy, and the mistake therein must 
 154 
 
 be rectified thereby. Norris v. Insurance Co. 
 of North America, 3 Yeates, 84. 
 
 21. The order for insurance, if adopted, 
 forms a part of the policy, and is to be resort, 
 ed to when construing llie policy. Maryland 
 Ins. Co. ». Bossiere, 9 G. & J., 121. 
 
 22. The action was founded upon a certifi- 
 cate of insurance, subject to the conditions of 
 policy No. 780, which policy was not pro- 
 duced. Held, insurer could not recover with- 
 out producing it. Underwriters Agency v. 
 SutJierlin, 46 Ga., 652. 
 
 23. Stipulated: "When a policy is issued 
 upon a survey and description of the prop- 
 erty, such survey and description shall be 
 taken and deemed to be a part and portion of 
 such policy, and a warranty on the part of the 
 insured and the said applicant hereby coven, 
 ants and agrees that the foregoing is a full, 
 just and true exposition of all the facts and 
 circumstances, conditions, situation and value 
 of the property to be insured, so far as the 
 same are known to the applicant and material 
 to the risk." Held, the survey was a part of 
 the contract and a warranty on the part of the 
 insured; but there must be a substantial 
 breach of the warranty before the action could 
 be defeated. Cox v. j^tnalns. Co., 29 Ind., 586. 
 
 24. The policy on its face referred to the 
 application in which certain declarations 
 were made respecting the life proposed. Held, 
 the policy and the application constituted the 
 contract between the parties. Mutual Benefit 
 Life Ins. Co. ■». Miller, 89 Ind., 475. 
 
 25. If the act of incorporation makes the 
 charter a part of the contract and the insured 
 a member of the company, the insured cannot 
 plead ignorance of its provisions. Illinois 
 Mutual Fire Ins. Co. «. Marseilles Manf. Co., 
 6 111., 236. , 
 
 26. The action was founded upon a certifi- 
 cate of insurance which referred to a policy by 
 number, but it was never made. Held, if it 
 was the usage and custom of the insurei; to re- 
 fer to a policy which had no existence, and in 
 accordance therewith, insurer was to make 
 and deliver one if required, then the rights of 
 the parties were to be governed by the same 
 terms and conditions as the instrument would 
 contain if in existence, and these were to be 
 ascertained by the uniform and settled custom 
 of the company without change of any of its 
 terms and conditions. Home Ins. Go. « 
 FawriU, 46 111., 263. 
 
309 
 
 CONTRACT. 
 
 310 
 
 What is not part. 
 
 27. The insured (by a mutual insurance 
 company) is bound to take notice of the com- 
 pany's act of incorporation, its provisions, 
 and the by-laws made under it. Simei-al 
 V. Dvbuque Mutual Fire Ins. Go., 18 Iowa, 
 319. 
 
 28. The insurer cannot be allowed to repu- 
 diate a custom in reference to which he is pre- 
 sumed to have contracted, and under which 
 the insured had a right to expect his loss, if 
 any, would be adjusted and settled; nor was 
 it necessary that the usage should extend to 
 the whole state. If it was generally known in 
 tlie port, city or town where the policy was 
 made, it was binding upbn the parties. Ful- 
 ton ins. Co. V. Milner, 33 Ala., 430. 
 
 29. Conditions of insurance in a separate 
 paper without stamp, seal or signature, were 
 referred to in the policy. Held, they were 
 binding upon the insured. Boutledge v. Bur- 
 rdl, 1 H. Black., 354. 
 
 30. On goods at and from Gottenberg to 
 any port in the Baltic, beginning the adven- 
 ture from the loading thereof; but declared 
 that it was in continuation of other policies 
 specified, and these were on tlie same goods at 
 and from Norfolk, Virginia, at which place 
 "the goods were laden. Held, the words of ref- 
 -erence to the other policies, in effect, intro- 
 duced them into that on which the action was 
 brought for veria rdata inesse videntur. Sell 
 V. Hobson, 3 Camp., 373; 16 East, 340. 
 
 31. She was insured subject to certain 
 rules, one of which was that ships insured 
 were not to sail from any port on the east 
 coast of Great Britain to any port in the Belts 
 between December 30th and February 15th. 
 She left Newcastle-upon-Tyne February 8th 
 for, and was lost in, the Baltic, February 14th. 
 Held, the rule was a warranty that she should 
 not sail within the period mentioned, towards 
 any port in the Belts ; the word " to " meant 
 towards and not arriving at. Colledge -o. Earty, 
 6 Exch., 305; 30 L. J. Ex., 146. 
 
 32. B. & Co., by letter, authorized the man- 
 agers of a mutual marine insurance company 
 to insure ship in the association, and under- 
 took to abide by the rules and regulations 
 thereof, by which each insurer became liable 
 to contribute to the losses in certain propor- 
 tions. In pursuance of the authority con- 
 ferred by the letter, a stamped policy was 
 issued, but it did not refer to the rules and 
 regulations. Held, insured were liable as 
 
 conti-ibutories. In re Albert Average Au'n, 
 Blyth's Case, 13 L. R. Eq. Cas., 539. 
 
 33. The policy referred to the application 
 and made it part of the contract. The policy 
 stipulated that if the interest of the insured in 
 the property was not absolute, it should be 
 void, unless truly represented and stated in 
 the policy. Insured had mortgaged the prop- 
 erty, which was not mentioned in the policy, 
 but was stated in the application. Held, a suf- 
 ficient compliance with the condition, for the 
 application was part of the policy. Fourdiner 
 V. Hartford Fire Ins. Co., 15 U. C. C. P., 403. 
 
 II. What is not paet. 
 
 1. The policy was sent to insured with a 
 paper called a survey, which he was requested 
 to sign and return, but he retained both. Held, 
 the policy was not delivered upon condition 
 that the survey should be executed, nor was it 
 any part of the contract. LeRoy v. Park Ins. 
 Co., 39 N. Y., 56. 
 
 2. A corporator insured his property in the 
 corporation, and gave his note for the premi- 
 um. In his absence a by-law was created, 
 which provided that if a note given for deposit 
 on any policy, and the interest thereof, to be 
 paid semi-annually, be at any time three 
 months in arrear, the policy shall be sus- 
 pended and of no effect, until the interest be 
 paid. Held, it applied to policies made and 
 notes given after its enactment. Insurance 
 Co. V. Connor, 17 Penn. St., 136. 
 
 3. The application signed by the insured 
 stated : '' If any untrue answer has been givea 
 to any of the foregoing interrogatories where- 
 by the said company has been deceived as to 
 the character of the risk, then said policy is 
 to be void and of no effect." The policy re- 
 ferred to the application for a more particular 
 description of the property insured, but the 
 application was not made part of the com- 
 plaint nor filed with it. Held, the application 
 was not a part of the policy, nor were the 
 statements in' it to be regarded as wan'anties 
 (citing Trench r. Chenango County Ins. Co., 7 
 Hill, 133;. Commonwealth Ins. Co. v. Mon- 
 ninger, 18 Ind., 353. 
 
 4. An application was expressly referred to 
 in the policy, but it appeared that none had 
 been made. Held, not error for the court to 
 instruct the jury that the policy was the 
 whole contract between the parties. Mewman 
 
 153 
 
311 
 
 CONTRACT. 
 
 312 
 
 What is complete. 
 
 e. Springfield Fire and Marine Ins. Co., 17 
 Minn., 123. 
 
 5. Tlie policy provided, tliat if an appli- 
 cation or survey be referred to, it shall be 
 considered a part of the conti'act, and a war- 
 ranty on the part of the insured; but there 
 were no words of reference in the policy to 
 any survey. The complaint alleged an agree- 
 ment to insure, founded on an application. 
 Held, the application was no part of the con- 
 tract. Weed V. Schenectady Ins. Co., 7 Lans., 453. 
 
 6. Policy was renewed, " Upon condition 
 that the application upon which this policy 
 was originally predicated shall continue valid 
 and in full force." The application and the 
 policy was " made in reference to a survey on 
 file in this oflSce," produced by insurer but was 
 addressed to another company, signed by the 
 president of that other company, who deliv- 
 ered it to this company and procured the 
 original policy and this renewal. There was 
 no evidence that the application was made 
 with the knowledge of insured. Held, in- 
 sured was not bound by tlie statements con- 
 tained in the application, for it was the act of 
 a third person, nor did the condition in the 
 certificate of renewal enlarge the effect of the 
 original reference in the policy. Denny v. 
 Conway Stock and Mutual Pire Ins. Co., 13 
 Gray, 493. 
 
 7. Insured stated, "There had not been 
 any material alteration in or about the prop- 
 erty to be insured since the last application 
 was made." But the sums insured by this 
 policy were on different property, for amounts 
 different to those mentioned in the Inst appli- 
 cation. Held, insured did not adopt, nor 
 could insurers have supposed that they in- 
 tended to adopt in the new policy, the state- 
 ments of values mentioned in the former. 
 Bddy Street FouTidry «. Farmers Mutual Fire 
 Ins. Co., 5 R. I., 426. 
 
 III. What is complete, 
 
 1. Complainant applied to defendant's 
 agent for insurance upon dwelling house, 
 $8,000, one year, and desired the agent to 
 write the application for him, and to state in 
 it the cause which prevented complainant 
 from signing it. Complainant desired the 
 agent to send the company's answer to him. 
 The agent made it November 35th, complying 
 with complainant's request. The company 
 156 
 
 replied, the risk would be taken at seventy 
 cents premium; and the agent, on receipt of 
 the company's answer, wrote complainant, 
 giving the company's terms, and added, 
 " Should you desire to effect the insurance, 
 send your check to my order for $57, and the 
 business is concluded." This was written 
 December 2d, but, being misdirected, did not 
 reach complainant till December 30th. He 
 mailed a letter next day assenting to the 
 terms, inclosing his check for $57, to the 
 agent's order, and requested him to deposit 
 the policy in a bank named, for safe keeping. 
 This did not reach the agent till December 
 31st, who then refused to effect the insurance, 
 on the ground that the complainant's accept- 
 ance came too late (a part of the dwelling 
 having been consumed by fire December 33d). 
 Held, the offer, under the circumstances 
 stated, prescribing the terms of insurance, 
 was intended and was to be deemed a valid 
 undertaking on the part of the company that 
 they would be bound according to the terms 
 tendered, if an answer should be transmitted 
 in due course of mail accepting them, which 
 could not be withdrawn unless the withdrawal 
 reached the party to whom it was addressed 
 before his letter of reply announcing the ac- 
 ceptance had been transmitted; that on the 
 acceptance of the terms proposed, transmitted 
 by due course of mail to the company, the 
 minds of both parties met on the subject in 
 the mode contemplated at the time of enter- 
 ing upon the negotiations, and the contract be- 
 came complete. The party to whom the pro- 
 posal was addressed had a right to regard it 
 as a continuing offer until it reached him and 
 was in due time accepted or rejected. Tayloe 
 V. Mmxhants Ins. Co., 9 How., 390. 
 
 2. Open running policy on 5,000 bags of 
 coffee from Rio to a port or ports of the United 
 States. The premium was acknowledged as 
 paid at the rate of one and a half per cent. ; 
 but it stipulated for an additional premium if 
 shipped by vessels lower than A 3, or by for- 
 eign vessels, and for a return of one quarter 
 per cent, if shipped direct to an Atlantic port; 
 " The premium on risks to be fixed at the time 
 of indorsement, and such clauses to apply as 
 the company may insert, as the risks are suc- 
 cessively reported." Neither party knew that 
 the coffee was shipped or on what vessels it 
 had or might be shipped. The shipments 
 were to be reported to the insurer as soon as 
 
313 
 
 CONTRACT. 
 
 314 
 
 What is complete. 
 
 insured received advices. Meld, the premium 
 ■was fixed, except In the case of a foreign ves- 
 sel, or one rating lower than A 2 ; that there 
 was no question in the- case but to determine 
 the rating of this vessel upon which this 
 shipment was made ; the word rating means 
 tlie determination of the relative state or con- 
 dition of vessels in regard to their Insurable 
 qualities; that as there was nothing in the 
 language of the policy Itself to Indicate the 
 source to which the parties were to look for 
 the determination of the rating of the vessels, 
 the question was like any other, of value, 
 quantity or quality, to be decided by refer- 
 ence to all the sources qf information which 
 would enable the jury to fix the fact correctly ; 
 that the parties were not confined to the rate 
 or classification on the register of the insurer ; 
 and that the usage, for the Insured, up(m 
 questions of this kind, to be governed by the 
 insurer's register could ajiply only to a vessel 
 that had an actual rating upon the books of 
 the company of a date so recent as to be rec- 
 ognized by insurers as a valid rating; there- 
 fore, as the vessel in question had no rating 
 upon insurer's register, it was not any evi- 
 dence of her rating. Insurance Companies v. 
 Wright, 1 Wall., 456. 
 
 3. The company had its principal place of 
 business at Philadelphia, but N. & H. were 
 its agents in Hartford, Conn. They proposed 
 to C. to insure certain premises of his, and he 
 tliereupon made an application to insure 
 $10,375 from August 26, 1870, for a term of 
 five years, at a fixed consideration. The agents 
 agreed to give him credit for the premium till 
 October 1st next, and that the policy should be 
 retained by N. & H. for C, for his conveni- 
 ence, tin October 1st. The premises were de- 
 stroyed by fire September 20th, at which time 
 no policy had been made. The company had 
 no knowledge of the negotiations for the con- 
 tract to Insure till after the fire ; but, after the 
 fire, the agents filled up a blank policy, con- 
 sulted with their principals, and refused to 
 deliver it. The premium was tendered and 
 refused. Held, credit for the premium did not 
 impair the prellminaiy contract; and the 
 agents were authorized to do after the fire 
 what they had previously stipulated to do on 
 behalf of the company; the relations of the 
 parties and the obligations of the company 
 were not changed by the neglect of the 
 agents ; the insured had a right to sue upon 
 
 the policy to recover for the loss ; and, upon 
 failure of tlie company to produce the policy 
 upon the trial, to give evidence of its contents 
 (citing Kohne v. Insurance Co., 1 Wash. C. C, 
 93; Lightbody v. North Amer. Ins. Co., 23 
 Wend., 18 ; City of Davenport «. Peoria F. & 
 M. Ins. Co., 17 Iowa, 376). Insurance Co. v. 
 Colt, 20 Wall., 560. 
 
 4. The complainants made insurance upon 
 the ship Great Republic for a large amount, 
 and they directed S. to propose to the respond- 
 ents for reinsurance to the amount of $10,000 
 for six months, from December 24, 1853, at 
 noon, subject to the same risks, valuations 
 and conditions, at three per cent. The re- 
 spondent's president declined to take it at 
 three per cent., but said he would take it at 
 three and half per cent. S. stated he was not 
 authorized to agree for that rate. This oc- 
 curred December 24th ; and Monday, the 26th, 
 S. received inftructions to agree to the rate 
 asked. This day was observed by merchants, 
 bankers and insurers as a holiday; but S. 
 went to respondent's office, saw the president 
 about it, the rate was changed upon the appli- 
 cation to three and a half per cent., and he 
 assented to the terms, but informed S. that 
 no business was being done at the office that 
 day ; that it would be attended to the next day ; 
 the application was received and retained by 
 the president. Seld, there was an agreement 
 to reifnsure according to the terms contained 
 in the proposal; that when one of the parties 
 either accepted a continuing offer, or renewed 
 a proposal made by the other, a binding con- 
 tract was completed; the statement made 
 by the president, that he would attend to it 
 next day, could not be Interpreted to mean 
 that he had not made a contract for a policy, 
 because he had already made a contract to 
 execute one next day in due form to carry the 
 agreement Into effect. Commercial Mutual 
 Marine Ins. Co. v. Union Mut. Ins. Co., 19 
 How., 318; affirming a. c, 3 Curtis, 534. 
 
 5. The plaintiffs were in the habit of send- 
 ing plates of their work to be bound by F. at 
 his place of business, 10 Spruce street, and of 
 procuring Insurance upon them for the short 
 time required to bind and return them. About 
 two months prior to the present occasion, they 
 sent certain sets of their works to this binder, 
 and procured a policy upon them from the 
 defendants for $1,000 for one month. Tliey 
 afterwards sent to F's place of business five 
 
 157 
 
315' 
 
 CONTRACT. 
 
 316 
 
 What is complete. 
 
 other sets of their works to be bound, and im- 
 mediately dispatched a messenger to defend- 
 ants to procure insurance upon them for a 
 month. He stated to defendants' secretary 
 the purpose of his errand in a manner suffi- 
 ciently precise to embrace all the terms of the 
 insurance, except the rate of premium. Kefer- 
 ence was made to the former policy on other 
 sets; the secretary said the company would 
 insure the property, and would send the policy 
 to the owners on the following Monday. This 
 conversation occurred Saturday afternoon. 
 Held, an agreement to insure presently, and to 
 furnish written evidence of the contract as soon 
 as it could be prepared conveniently; that as 
 nothing was said about the premium, it was 
 a fair inference of fact that it was to be the 
 same as that cliarged in the prior policy, and 
 was a debt against the owners of the property, 
 for which credit was given until the policy 
 should be delivered. Audubon, v. Excdsior 
 Im. Oo., 37 N. T., 316. 
 
 6. Defendants appointed D. & Co. as their 
 agents at Appalachicola. The custom at that 
 place was to obtain from persons engaged in 
 the business of insurance, a certificate to cover 
 shipments of cotton from various points to 
 the person named, who kept a book in which 
 he entei-ed all shipments with their value of 
 the description specified in the certificate, and 
 at the end of each month to exhibit the book 
 to insurer, who fixed the premium. Ship- 
 ments were rarely known, either to consignee 
 or insured, until arrival of the vessel. D. & 
 Co. made a certificate of insurance to the 
 plaintiff to cover all cotton shipped by or for 
 account of persons named, at a fixed valuation 
 per bale. While the certificate was in force, 
 but before the shipment was reported by in- 
 sured to the agent, a steamboat with 184 bales 
 of cotton, $9,200, consigned to the plaintiff for 
 account of persons named in the certificate, 
 was consumed by fire. Held, insurers were 
 bound to take notice of the mode of doing the 
 business of insurance at Appalachicola; that 
 in a controversy not between the agent and 
 the insured, the knowledge of the agent was 
 the knowledge of the insurer; that if the 
 agents violated private instructions, that was 
 no defense to the action. Hartshome v. Union 
 Mut. Ins. On., 36 N. Y., 173; 8. c, 5 Bos., 538; 
 Pratt V. Union Mut. Ins. Oo., 9 id., 97. 
 
 7. The loss was not covered by the policy, 
 but insured called on the defendant and de- 
 •158 
 
 sired to know where the property was. De- 
 fendant's agent replied, it was in Washington, 
 the point of destination. Insured denied that 
 it was there, and offered to abandon it, on the 
 ground that the vessel had sprung a leak, and 
 was propably frozen in at the mouth of the 
 Potomac. Defendant's agent told him to find 
 the property, have it inspected, sold at auc- 
 tion, do the best he could with it, return to 
 the company, and it would pay the deficiency. 
 Insured found it, and did with it as requested, 
 but the company refused to pay, on the 
 ground that they were not liable for goods 
 shipped on deck. Held, the plaintiff was en- 
 titled to recover on the new agreement; that 
 it was properly a question for the jury to de- 
 termine whether the defendants made that 
 new agreement after their attention had been 
 drawn to the fact that the property was laden 
 on deck. Willets v. Sun Mut. Ins. Oo., 45 N. 
 T.. 45. 
 
 8. M. was the agent of several companies, 
 including the defendant. P. applied to him 
 to insure a quantity of cotton for. a certain 
 time, at a stipulated rate of premium, and for 
 a certain amount, leaving it to him to deter- 
 mine the companies and the amount in each. 
 The agent entered |6,100 of the whole sum 
 upon his register for the defendant, credited 
 the premium to the defendant, which was re- 
 ported, and paid over before loss. Held, a 
 valid contract. Ellis v. Albany Oity Fire Ins. 
 Go., 50 N. Y., 403; 4 Lans., 438. 
 
 9. Plaintiff made application to defendant's 
 agent, for a policy on the life of her husband; 
 paid the premium and took a receipt, in 
 which it was stipulated that the application 
 should be forwarded to the principal office 
 for acceptance ; if accepted, a policy to be is- 
 sued ; if declined, the premium to be returned, 
 but if death should occur before tlie princi- 
 pal's decision shall have been received, the 
 sum insured to be paid. The application was 
 accepted, and a policy sent to the agent who 
 refused to deliver it, because the health of the 
 person insured had declined. The second 
 premium became due, it was tendered and re- 
 fused, and the person insured died soon after. 
 Held, the only contingency on which the con- 
 tract could fail was the r^ection of the appli- 
 cation by the principal; that contingency did 
 not happen, hence the contract was complete. 
 Fried v. Royal Ins. Co., 50 N. Y., 243; s. c, 47 
 Barb., 127. 
 
317 
 
 CONTRACT. 
 
 818 
 
 What is complete. 
 
 10. Plaintiffs' agent having executed their 
 policy insuring certain buildings, machinery 
 and fixtures, was ordered by them to cancel 
 it. Whereupon he instructed his clerk to 
 make application to defendant's agents to 
 reinsure the risk. They made a policy in the 
 name of the owner covering the risk described 
 in plaintiffs' policy, and delivered it to the 
 clerk of plaintiffs' agent, who made an un- 
 successful effort to find the owner, and to de- 
 liver it. The premises were consumed two 
 days after defendant's policy was issued. The 
 day after the fire occurred defendant's agents 
 received the premium. The owner made 
 proof of loss and sent them to the plaintiffs, 
 claiming that the policy made by the defend- 
 ant was without authority from her, and that 
 the plaintiffs' agent in procuring it had no 
 authority so to do. Held, not a contract to re- 
 Insure, but one of original insurance, and up- 
 on which the plaintiffs, as assignee of the 
 owner, were entitled to recover. ExceUior Fire 
 Int. Go. v. Boyal Ins. Co., 55 N. Y., 343 ; s. c, 
 7 Lans., 138. 
 
 11. Insurers appointed R. to make agree- 
 ments to insure property at Savannah, to re- 
 ceive the premium, transmit it; and the ap- 
 plication to be binding, provided insurers 
 should accept the premium when tlie applica- 
 tion should be presented for their delibera- 
 tion. E. received a premium, delivered his 
 receipt for it January 5; 1820. The loss oc- 
 curred on the morning of the 11th, before he 
 had transmitted the application. Held, in- 
 svu-crs were bound to pay the loss unless they 
 could show proper objections to the rate or 
 the risk; that if both of these were unobjec- 
 tionable, and the policy would have been is- 
 sued but for the happening of the loss, the 
 court would compel them to recognize the 
 rate and to be satisfied with the risk. Perkins 
 V. Washington Ins. Co., 4 Cow., 645; revers- 
 ing s. c, 6 Johns. C, 485. 
 
 ] 2. The insured sent his ship with a cargo 
 to Gibraltar ; she was to proceed thence on a 
 trading voyage to the Pacific, going first up 
 the Mediterranean, not furtlier than Marseilles, 
 for the purpose of obtaining a change of cargo, 
 or for some other object necessary to the suc- 
 cess of the voyage. He made application for 
 insurance, in writing, as follows: " On ship 
 Nancy, James Selby, master, at and from the 
 port of Gibraltar Cwhere she now is), to a port 
 in the Mediterranean, not higher than Mar- 
 
 seilles, at and from thence to Sonsonate, in 
 the province of Guatemala, Pacific Ocean, 
 with liberty to use Guayaquil. Property war- 
 ranted American, to be proved in Philadel- 
 phia only. $15,000 on her profits. Valued at 
 $30,000." This application was made Novem- 
 ber 12th, and marked " Binding," by the de- 
 fendant's president. Insured was to send his 
 notes for the premium. On the 15th of the 
 same month, before the policy was made, and 
 before the notes were delivered, information 
 was received by both parties that she acci- 
 dentally took fire at Gibraltar, September 19th 
 preceding, and was entirely destroyed. Held, 
 a completed contract, but that the words 
 " Where she now is," was a warranty that she 
 was safe at Gibraltar at the time the applica- 
 tion was made, and this being untrue, no re- 
 covery could be had. Callaghan <o. Atlantic 
 Ins. Co., 1 Edw. C, 64. 
 
 13. September 2, 1869, defendant's agent, 
 French, resided at Auburn, at which place 
 plaintiff resided. On his way to the cars he 
 met French, and paid him the premium for 
 insurance against accidents. The agent 
 promised to make the policy as soon as he 
 reached his otfice. On that day the plaint- 
 iff sprained his knee. The agent refused to 
 deliver the policy. All the policies were sub- 
 ject to the condition that immediate notice 
 should be given in writing of any accident or 
 injury, with full particulars of it, and satisfac- 
 tory proof within seven months thereafter. 
 Held, insured was entitled to a policy, and a 
 court of equity would decree payment of the 
 amount agreed, if plaintiff could prove per- 
 formance of the conditions contained in the 
 usual policy. Rhodes v. Railway Passenger 
 Ins. Co., 5 Lans., 71. 
 
 14. March 28, plaintiff applied to defend- 
 ant's agent for insurance, who accepted the 
 risk, and delivered a receipt for the premium, 
 in which it was stated the policy should take 
 effect at noon of that day. The premium was 
 not paid, but the agent agreed that the plaint- 
 iff might send it to him when convenient. The 
 property was destroyed April 7th. Insured 
 sent the premium to the agent immediately 
 after the fire, said nothing about the loss, and 
 the agent, not having heard of if, sent the pre- 
 mium and application to defendants, who, 
 without any notice of the loss, made and sent 
 a policy to the agent to be delivered to the 
 plaintiff; but subsequently, on hearing of the 
 
 159 
 
319 
 
 CONTRACT. 
 
 320 
 
 What is complete. 
 
 loss, directed him not to deliver it. Seld, de- 
 fendant could not be permitted to say that the 
 policy would have been valid from March 
 28th if no Are had occurred, and also 1o insist 
 that it was not valid because of the Are April 
 7th; that the plaintiflF was under no legal or 
 moral obligation to inform the defendant of 
 the Are before or at the time the premium was 
 paid; that he was entitled to have his applica- 
 tion acted upon after tlie fire in precisely the 
 same manner as if no Are had occurred. Whit- 
 aher v. Farmera Union Int. Co., 29 Barb., 312. 
 16. Policy for sixty days, to expire March 
 24, 1863, noon. The plaintiff had an inter- 
 view with defendant's agent February 37th, 
 who then inquired whether plaintiff desired 
 to have this and another insurance on the 
 same property, in another company, renewed 
 when they should expire, both being to expire 
 at the same time, to which plaintiff replied 
 that he required them to be renewed for sixty 
 days. In the afternoon of March 24th, the 
 agent was asiied by plaintiff whether he had 
 renewed these policies. The agent inquired 
 when they expired, and the plaintiff told him 
 they had expired that day, and the agent stated 
 he would go right over and do it. This con- 
 versation occurred, not in the agent's place of 
 business, but in a neighboring store. Nothing 
 was said about the premium, but the evidence 
 disclosed the fact that this agent had previ- 
 ously renewed several insurances for the plaint- 
 iff in the same way. The agent was a banker, 
 and plaintiff kept his bank account witli liim, 
 and he had on former occasions debited plaint- 
 iff in account with the necessary amount of 
 premium, without anj' check for it. Held, the 
 evidence was sufficient to establish a contract 
 to renew the insurance for sixty days, notwith- 
 standing all policies and renewal certificates, 
 supplied by the company to the agent, de- 
 clared the3' should not be valid till counter- 
 signed by the agent. Post v. JEtna Ins. Co., 
 43 Barb., 351. 
 
 16. $30,000 on property on board vessel or 
 vessels to, at, and from, all ports or places as 
 per indorsements to be made hereon (certain 
 perils enumerated taken), also: "Against all 
 other losses or misfortunes to which insurers 
 are liable according to the rules and customs 
 of insurance in Boston." P. & B. were insur- 
 ers' agents at Boston. The plaintiffs applied 
 to B. for insurance on 400 bales of cotton. New 
 Orleans to Boston, 115 on brig " Keying," and 
 160 
 
 285 bales in store at New Orleans. B. charged 
 " one-eighth of one per cent, for the risk of 
 fire on shore until shipped from date of stor- 
 age " in addition to marine premium. B. sub- 
 sequently altered the risk on shore by adding 
 the words "thirty days." Held, if P. & B., as 
 partners in business, were authorized to act 
 for defendants, either might exercise the au- 
 thority thus conferred ; the alteration of the 
 risk on shore to thirty days was material, and 
 not having been consented to by one of the 
 parlies, could not be taken into consideration 
 in determining their rights. It was compe- 
 tent for the parties before a breach of the con- 
 tract, to vary, change, or enlarge their engage- 
 ments and liabilities under it ; and what the 
 parties could do themselves could be done by 
 their agents properly authorized; that an 
 omission to indorse the risk upon the policy 
 before the loss did not affect plaintiffs' right 
 to recover, for the subject was well described, 
 the premium agreed upon, the place of storage 
 satisfactorily described ; the only thing to be 
 ascertained when the bills of lading or invoice 
 should come to hand was the value. Kenne- 
 bec Co. V. Augusta Ins. & Banking Co., 6 
 Gray, 204. 
 
 1 7. " Lost or not lost, on cotton gins and 
 bandings (m board of any steamer or steamers 
 at and from New York to New Orleans; all 
 sums placed at risls under this policy are to 
 be indorsed liereon, and this policy is to be 
 closed in twelve months if not sooner filled.' 
 Dated June 14, 1858. The shipment of 16 cot- 
 ton gins was made at New York, August 25 
 and 26, 1853, and the bill of lading was re- 
 ceived at Boston on the 27th. The ship and 
 contents were burned on the evening of the 
 26th. In the afternoon of the 27th, the plaint- 
 iffs requested defendants to indorse the ship- 
 raent, which was refused on the ground that 
 the property had been lost before the applica- 
 tion was made. Held, the construction which 
 the defendants claimed to put upon the con- 
 tract would enable them to say, liaving re- 
 ceived the price for insuring £25,000 on any 
 gins, to be shipped in any steamer, from New 
 York to New Orleans, within a year, we will 
 insure only such as it is our pleasure to insure ; 
 such a construction would defeat the inten- 
 tions of the parties; if the insured, acting in 
 good faith, intended to have the shipment cov- 
 ered by the policy, and within a reasonable 
 time after the shipment, notified insurer of his 
 
321 
 
 CONTRACT. 
 
 322 
 
 What is complete. 
 
 election, insurer could not refuse to indorse, 
 notwithstanding, between shipment and no- 
 tice, intelligence of the disaster had been re- 
 ceived (citing Kewly v. Ryan, 3 H. Black., 343 ; 
 Crawford ». Hunter, 8 Term, 16, note; Harmon 
 9. Kingston, 3 Camp., 150). Garver Gomp''yv. 
 Manufacturert Int. Go., 6 Gray, 214. 
 
 1 8, B. was authorized by defendant to re- 
 ceive proposals for insurance and premiums 
 upon risks accepted, but not to make contracts. 
 His duty was to forward applications to the 
 principal oflSce, and when accepted, the poli- 
 cies were made and sent to him to deliver. 
 PlaintiflF applied to him for |1,200 insurance 
 to commence March 12, 1855, at noon, at which 
 time the policy of another company, for the 
 same sum would expire. B. made a survey of 
 the building, told him what the premium 
 would be, and plaintiff offered to pay the pre- 
 mium, but B. stated that it could remain with 
 the plaintiff, a banker, because B. kept an ac- 
 count with him ; that when the policy should 
 reach him he would go and take the money. 
 The company deferred acting on the applica- 
 tion till March 13th, at which time they made 
 a policy and transmitted it to B. for him to 
 deliver it to insured. The property was de- 
 stroyed on the morning of March 13, ten hours 
 before the policy was executed. It ought to 
 have reached B. March 14, but owing to falls 
 of snow, it did not arrive until the 16th, at 
 which time insurers telegraphed B. not to de- 
 liver it. B. accepted the premium when it 
 was tendered, but refused to deliver the policy. 
 It was stipulated in the policy that no insur- 
 ance should be binding until payment of pre- 
 mium. Held, a completed contract when the 
 insurers signified their acceptance of the offer; 
 and it was unnecessary for a knowledge of the 
 acceptance to have reached the other party. Hal- 
 lock V. Commereial Ins. Co., 26 N. J., 268 ; affirm- 
 ed. Commercial Ins. Co. v. HaUock, 27 N. J., 645. 
 
 1 9. Plaintiff applied to defendant's agent 
 for insurance on an academy, paid requisite 
 proportion of premium and executed note for 
 residue, and had the survey made. Secretary 
 of company wrote agent to require plaintiff to 
 substitute earthenware collar in place of sheet 
 iron, and to have the trustees of academy, 
 who held the title, assent to the insurance, 
 saying, that being certified that these were 
 done, he would send the policy. All were 
 performed, and the agent was requested to 
 call for the Uustees' consent, which he prom- 
 
 11 
 
 ised to do but neglected, and the building was 
 consumed before he got it. Held, the con- 
 tract to Insure was complete from the time 
 plaintiff gave notice that he had complied 
 with all the conditions mentioned, Hamilton 
 V. Lycoming Mut. Ins. Co., 5 Penn. St., 339. 
 
 20. On brig from Havana to a port of 
 dischai'ge in the TJ. S. It was subsequently 
 indorsed, " The brig herein named, with 
 cargo,' has liberty to proceed from Havana to 
 Matanzas to finish loading, and the risk to be 
 continued at and from thence to her port of 
 discharge in the U. 8. Cargo valued at the 
 same for which the sum of $40 is added to 
 note 3,427." The vessel was lost while going 
 from Havana to Matanzas. Held, it was a 
 contract binding upon the corporation al- 
 though it was not recorded upon the record 
 book of tlie corporation. Warren v. Ocean Ins. 
 Co., 16 Me., 439. 
 
 21. The constitution and by-laws of the 
 company provided: "All policies sliall be 
 printed in the common form, contain the 
 names of the stockholders, and the secretary 
 shall have full authority to use their names 
 and sign for each member ; and every policy 
 so signed shall be as binding on all the associ- 
 ates the same as if each had affixed his own 
 signature. Premiums less than $20 to be paid 
 in cash, and all sums over that by note, if the 
 secretary shall so determine." L., one of the 
 plaintiffs, applied for insurance in behalf of 
 all the owners of a schooner. The president 
 and secretary agreed to take $2,000 on her at 
 ten per cent, for one year, commencing Octo- 
 ber 35, 1839, lost or not lost. L. signed the 
 company's terms on the proposition book. A 
 policy was made and recorded, and upon 
 application for it, L. said he would leave the 
 policy, as he had no authority to sign the 
 names of the other owners to the note for the 
 premium, but would take it, get it signed and 
 return it in a few days. About December 6th, 
 the president met L. on the wharf and told 
 him to go up to the office and settle that busi- 
 ness, meaning the note. L. said he would 
 call another time. The loss of the vessel 
 became known December 9th. L. called at 
 the office on the 11th, and mentioned the loss, 
 and then offered the note and demanded the 
 policy, which was refused. Held, the parties 
 could consent that the writing should be the 
 evidence of their agreement, though it be left 
 in the hands of one or the other without any 
 
 161 
 
323 
 
 CONTRACT. 
 
 324 
 
 What is complete. 
 
 formal delivei-y of it by either to the other; 
 and if it was customary for policies, when 
 made, to remain in the office of insurer, and 
 still be obligatory, and such had been the case 
 in question, or the agent of the insurer had 
 declared the risk was taken ; or if there had 
 been no loss the premium would have been 
 recovered ; a jury might, from these or any of 
 them, conclude, that the parties intended to 
 constitute a binding contract; not giving the 
 note for the premium might appear unim- 
 portant, for that would be only a reiteration 
 of the promise to pay, which was contained 
 or fully implied in the proposal for insurance. 
 Loring «. Proctor, 26 Me., 18. This cause was 
 again heard under another title upon the 
 same state of lacts and it was held,, the plaintiff 
 was entitled to recover. MancJiard v.Waite, 28 
 Me., 51. 
 
 22. Insurer's agents, residing at Portland, 
 had authority to make any contract of insur- 
 ance, in behalf of the company, which the 
 company itself was competent to make. It 
 w^as the custom at Portland to accept build- 
 er's risks, and afterwards to issue a policy 
 upon what is called a permanent risk The 
 plaintiflf applied to the agent for a builder's 
 risk, $3,500, and reqeusted the agent to keep 
 the property insured, which the agent agreed 
 to do, and he made an entry thereof in the 
 blotter; afterwards, when the builder's risk 
 had terminated, the risk was continued as a 
 permanent yearly risk, commencing July 1, 
 1866. No specific rate of premium was agreed 
 upon ; but the agent was directed to retain the 
 proper'amount of premium from a claim the 
 plaintiff had against the company, which the 
 agent agreed to do, and in settling the claim 
 subsequently to the loss, retained the pre- 
 mium; but the company declined to recog- 
 nize the act and directed the agent to pay the 
 amount retained from the claim. No policy 
 was issued at the time the loss occurred, but 
 the common ' practice was to make policies 
 subsequently to the acceptance of risks, and to 
 treat them as commencing from the time of 
 enrering them in the blotter. Seld, if the 
 plaintiff and the defendant's agents under- 
 stood that an insurance was effected, the pre- 
 payment of the premium was unnecessary, for 
 that was an advantage the company might 
 waive; that an agreement to insure without 
 fixing the rate of premium was an agreement to 
 insure at the customary rates; and all the 
 162 
 
 essential terms of a contract were fixed and 
 complete (citing Audubon «. Excelsior Ins. 
 Co., 27 N. Y., 216). Walker v. Metropolitan 
 Ins. Oo., 56 Me., 371. 
 
 23. The defendants issued an open running 
 policy to H., " for account of whom it may 
 concern, loss, if any, payable to him, lost or 
 not lost, $50,000 on property on board ves- 
 sel or vessels at and from port or ports in 
 the United States and foreign countries to 
 other ports in the United States and foreign 
 countries, with such other risks as may be 
 agreed, as per indorsement hereon accepted 
 by this company." Insurer gave certain 
 blank certificates to H.. for him to fill and 
 sigU' them for the company, and authorized 
 him to indorse the risks and receive the pre- 
 miums therefor. He indorsed a risk and gave 
 a certificate in favor of the plaintiff; $600 on 
 cargo, hay, on board schooner "Julia," at 
 and from Dover, N. B., to Boston. Held, " as 
 per indorsement hereon accepted by the com- 
 pany," indicated that the risk was to he 
 agreed upon, and was to be regarded as ac- 
 cepted by the company by indorsement; the 
 contract was complete when the premium was 
 paid and the risk agreed upon as per indorse- 
 ment. Waas 0. Maine Mutual Marine Ins. Co., 
 61 Me., 537. 
 
 24. Insurer's agent knew that P. had 
 bought out the interest of his partner, and 
 that he was sole owner of the property in- 
 sured. P. delivered the old policy to the in- 
 surer's agent, and told him he wanted the 
 property insured. The agent had it renewed, 
 and delivered the policy and renewal to P., 
 who never looked at them till after the fire 
 occurred. Eeld, under the circumstances of 
 the case a jury would have the right to find that 
 insurer made a new and valid contract with 
 the plaintiff. Pierce v. NasTiua Fire Ins. Go., 
 50 N. H., 297. 
 
 25. She was insured for one month, but 
 struck a rock in the Arkansas river and was 
 obliged to put into Little Rock for repairs. A 
 second policy, by the same insurer, was made 
 upon her while she was undergoing repairs, 
 conditioned, that the damages sustained by 
 grounding on the rock should be repaired and 
 the vessel made as good as she was prior to 
 the accident. Before the repairs were com- 
 pleted the water rose suddenly and she be- 
 came a total loss. Held, the condition did not 
 postpone the risk until the repairs were com- 
 
325 
 
 CONTRACT. 
 
 326 
 
 What is complete. 
 
 pleted. Hyel/e «. Mississippi Ma/rine and Fire 
 Ins. Co., 10 La. (O. S.), 543. 
 
 26. The agent of a foreign insurance com- 
 pany received the_ premium for a life poUcJr, 
 and in the receipt stipulated, that it should be 
 exchanged for the policy within thirty days, 
 if the application should not be rejected by the 
 parent office. Insurer did not rgect the ap- 
 plication within thirty days, but awaited a 
 certificate from a Louisville physician. About 
 four months after, the person whose life was 
 proposed died, and then insurers directed 
 their agent to retain premium pro rata for 
 thirty days, and to return the balance to the 
 representatives of the deceased. JTeld, it was 
 insurer's duty to forward the rejection within 
 thirty days after receiving notice of receipt of 
 the premium ; the premium was for an insu- 
 rance for twelve months, unless rsgected by 
 the company within thirty days, and not an 
 agreement to insure for thirty days, with the 
 right to refund unearned premium. Ken- 
 I V. Neuo York Life Ins. Oo., 10 La. An,, 
 
 27. It was the custom between insurer and 
 insured to consider all cotton consigned to a 
 merchant as covered by his open policy, un- 
 less the contrary was expressed in the bill of 
 lading. Held, where no such reservation was 
 expressed in the bill of lading, insurer was 
 bound for all cotton so consigned. Bramatein 
 V. Crescent Mut. Ins. Co., 34 La. An., 589. 
 
 28. "On such property, in such sums, to 
 and from such ports or places, and by such 
 good and seaworthy steamboats or other river 
 craft as may be approved by this company 
 and entered in the book attached to this pol- 
 icy; no risk shall be binding until so ap- 
 proved and entered." Insured received no- 
 tice April 6th, that a shipment had been made 
 April 3d, from Montgomery, Ala., to New Or- 
 leans, on the steamer "Benefit" He pre- 
 sented the invoices to a clerk in insurer's 
 office on the 9th, and the goods were properly 
 described by indorsement; date of shipment, 
 sura insured, destination, rate of insurance 
 and amount of premium being stated. She 
 was lost on-the 7th, of which insurer had no- 
 tice, but neither the clerk nor insured knew 
 of it. Held, the contract became complete 
 when the entry was made in the book at- 
 tached to the policy. Marx v. National Ma- 
 rine and Fire Ins. Go., 25 La. An., 89. 
 
 29. -Application was made and accepted, 
 
 February 9th, to lake effect from noon of that 
 day, and policy was made, but it remained in 
 the hands of insurers. Five days after, the 
 premises were consumed ; and insured paid the 
 premium and took the policy without dis- 
 closing the fact. Held, a completed contract, 
 and insured was under no legal or moral ob- 
 ligation to notify the company of the loss. 
 Keim v. Home Mut. Ins. Co., 42 Mo., 38. 
 
 30. In favor of the St. Louis Museum, etc. 
 The property was sold under a deed of trust 
 and plaintiffs purchased it. The policy was 
 taken by the purchaser to an insurance 
 broker, who was told of the sale, and he gave 
 the company notice of it, and applied for in- 
 surance upon the same property in favor of 
 the purchasers, and at the same time delivered 
 up the policy. The insurers returned it in- 
 dorsed : " Loss, if any, payable to A." The 
 purchasers subsequently sold the property and 
 sent the policy to insurer's office requesting that 
 it might be changed to cover " chairs, benches 
 and furnaces, the property upon which it had 
 been issued having been sold." The presi- 
 dent indorsed : " This policy is hereby 
 changed to cover chairs, benches and furnaces 
 instead of museum collection which is re- 
 moved." Held, in the absence of explicit pro- 
 hibition in the charter and by-laws, corpora- 
 tions have the right to make parol contracts 
 (citing Angell & Ames on Corporations, sec. 
 240). That the act of insurer was an engage- 
 ment to retain the unearned premium, regard 
 the policy as valid, and pay the loss to the 
 parties designated. Northrup v. Mississippi 
 Valley Ins. Co., 47 Mo., 435. 
 
 31. The company's agent applied for in- 
 surance upon his own property, which was 
 granted and a policy sent. But the agent, be- 
 ing dissatisfied with the rate of premium, re- 
 turned it to the company for a reduction, 
 which was made, and it again reached his 
 hands November 6th, on which day he charged 
 himself in account with the premium. The 
 company transmitted, with the policy, an ac- 
 count showing several charges against the 
 agent, in which was the premium for the pol- 
 icy on the agent's property. The practice 
 was to make remittances at the en-d of every 
 month, less the commissions. On the morn- 
 ing of the 7th, the property was destroyed by 
 fire. Held, notice of the acceptance of the 
 policy was not required; and nonremittance 
 of the premium did not give the company the 
 
 163 
 
327 
 
 CONTRACT. 
 
 828 
 
 What is complete. 
 
 right to say that the policy was not in force. 
 Lungstrasi v. German Ins. Co., 48 Mo., 301. 
 
 32. Defendant's agent solicited plaintiff to 
 make application for insurance January 10, 
 1871, ■which was accepted from noon of that 
 day. The policy remained in the hands of the 
 company till March 27th, following, at which 
 time insured paid the premium and took the 
 policy, but said nothing of the fact that the 
 property had been destroyed by fire on the 
 preceding day. The company delivered the 
 policy in ignorance of that fact. When the 
 application was made, insured said he could 
 not pay the premium at that time, and the 
 agent told him it would make no difference, 
 he would take his note for it at one, two, or 
 six months. Plaintiff declined giving his 
 note, said he would have the money in a short 
 time and pay the premium in cash. SeUd, 
 the plaintiff had the right to rely on the 
 agreement, and was not bound to voluntarily 
 inform the company of the Are. Baldwin v. 
 Chouteau Ins. Co., 56 Mo., 151. 
 
 33. Application made by the husband for 
 a policy on his life in favor of his wife was 
 completed September 27, 1850. It was agreed 
 that the premium should be credited against 
 the husband's bill for advertising for the com- 
 pany. The company's books showed an ap- 
 proval of the application. A policy issued Oc- 
 tober 2, 1850, was sent to the agent, and by him 
 received October 5th. The husband had been 
 taken sick in the meantime, September 29th. 
 He died October 4th. The agent returned 
 the policy to the company. Held, the com- 
 pany's acceptance completed the contract, for 
 the proposal was a continuing offer up to 
 the time the answer was sent, and then the 
 acceptance made the contract complete (citing 
 Frith v. Lawrence under the title of Mactiers, 
 Adm'r, «. Frith, 6 Wend., 103; Kohne v. Ins. 
 Co. of N. A., 1 Wash. C. C, 93; Adams v. 
 Lindsell, 1 Barn. & Aid., 681; 2 Kent Com., 
 477 and note; Tayloe v. Merchants Ins. Co., 9 
 How., 390). Kentucky Mul. Ins. Co. v. Jenka, 
 5 Ind., 96. 
 
 34. A. applied to insurer's agent to insure 
 against loss by fire the sum of $1,000 for one 
 year. The proposal was forwarded to the 
 principal, who accepted it. It was agreed 
 that the policy should be delivered when 
 called for and the premium should be paid 
 within five days; but before that time expired, 
 the building was consumed by Are. Held, a 
 
 164 
 
 completed contract. New England Ins. Co. n. 
 Bobinson, 25 Ind., 586. 
 
 35. The jury found specially that the con- 
 tract was made March 9th i that the premium 
 was paid March 14th; that the horse was 
 first diseased March 13th, and died March 
 14th, before the policy issued. It provided 
 that the company should not be responsible 
 for animals diseased " at the time of insur- 
 ance." Held, the special finding supported a 
 general verdict for the insured, for the con- 
 tract of insurance may be complete without 
 evidence of it in writing (citing New England 
 Ins. Co. V. Bobinson, 25 Ind., 536). American 
 Horse Ins. Co. v. Patterson, 28 Ind., 17. 
 
 36. Insured applied to insurer's agent for 
 insurance. The amount, premium and term 
 were agreed upon, with the understandmg 
 that the agent was to see the building, and if 
 it should be found as represented, the policy 
 should take effect from noon of that day, 
 March 20th, and that the agent should call in 
 the evening and state his conclusion. He exam, 
 ined it and gave notice that the risk was ac. 
 cepted. It was consumed by fire on the night 
 of March 20th, and on the following morning 
 the agent's clerk issued the policy, all parties 
 being ignorant of the fire. Held, the insurei 
 was liable for the loss. City of Davenport v. 
 Peoria Marine and Fire Ins. Co., 17 lov-a, 276. 
 
 37. A. applied to the authorized agent of as 
 insurance company to insure property from 
 December 18th, and it was agreed that the pol 
 icy should issue on that day. It was made tm 
 that day but not issued till the 22d. Held, a 
 binding contract from the 18th. Hubbard e. 
 Hartford Fire Ins. Co., 33 Iowa, 325. 
 
 38. Insured alleged that on July 1, 1860, he 
 made application to insurers through their 
 agent for insurance to the amount of $1,000, 
 for the tenn of one year from that date, upon 
 his stock of saddlery, harness, saddlery hard- 
 ware, whips, and a great variety of other goods 
 such as are usually kept for sale in a whole- 
 sale and retail saddle and harness manufac- 
 tory, and agreed to pay $47.50 as premium 
 therefor within one month from that date; that 
 the agent acting for insurer agreed to make 
 out and deliver within one montli to insured 
 a policy of insurance on said goods ; that it 
 should datefrom July 1,1860; that the said 
 agent had authority to contract to make in- 
 surance for insurer; that July 9th the property 
 was consumed by fire; that the same was the 
 
329 
 
 CONTRACT. 
 
 330 
 
 What is complete. 
 
 property of insured ; that on or about July 35, 
 1S60, insured tendered the premium and de- 
 manded the pulicy, which was refused. Held, 
 it disclosed a cause of action; if the com- 
 plaint was insuflScient, that did not affect Uie 
 plaintiff's right to recover, for it was the duty 
 of insurer to require the pleading to be made 
 definite and certain, hence insured was entitled 
 to recover. Western Man. Ins. Co. o. Ih^ey, 
 2 Kan., 347. 
 
 39. Insured applied to insurer's agent for 
 insurance on stock of " goods and groceries." 
 The sum insured was fixed, deposit note made 
 and delivered, the per centum paid to agent 
 who passed it to the credit of the insurer, and 
 forwarded it to his principal. The property 
 was destroyed before the application reached 
 the principal. Meld, the contract was com- 
 plete when the insured did all that was to be 
 done on his part, although the agent had no 
 power to issue the policy. Palm n. Medina 
 County Mutual Fire Ins. Co., 20 Ohio, 529. 
 
 40. May 1, 1868, insured took from insurer 
 an open, or what is sometimes called a run- 
 ning policy, to continue for one year, insur- 
 ing goods "Lost or not lost; shipments to be 
 reported and indorsed." It was proven that 
 insured had not reported all their risks; that 
 one shipment was insured in another com- 
 pany, not by the procurement, however, of the 
 insured, but by the consignors of that ship- 
 ment April 1, 1869, insured ordered tobacco 
 from Louisville for Fort Smith. They re- 
 ceived the invoice April 11th, and reported the 
 shipment on the 12th, to insurers' agent, who 
 sent the application to insurers' secretary, who 
 rejected it on the 14th, because he had heard 
 the tobacco had been burned on the 10th. It 
 appeared that insured was asked by insurers' 
 agent whether the risk should be indorsed 
 from Louisville or from Memphis only, and 
 insured replied he would be satisfied to have 
 it taken from Memphis, and it was so indorsed 
 upon tlie policy. She reached Memphis in 
 safety, entered the Arkansas river, struck a 
 snag forty miles below Little Rock, sank, and 
 was burned to the water's edge. HeW, insurers 
 could make themselves responsible for a loss 
 that had already happened even though it were 
 total ; and that their intention so to do was 
 evidenced by the words " lost or not lost," 
 found in the policy; that under such a policy 
 the contract was not completed until the de- 
 sire to insure was made, and until made, the 
 
 contract was inchoate ; tliat when the desire 
 to insure was made to insurers' acting and ac- 
 credited agent, and the premium agreed upon 
 and charged to insured, then the contract be- 
 came complete; the failure to report all ship- 
 ments to insurers did not work a forfeiture.of 
 the policy, because there was no agreement 
 between the parties that insured should report 
 all shipments; and a failure to perform an im- 
 plied duty does not avoid a contract; and as 
 the contract itself did not fix a penalty for the 
 failure to report all shipments, the law will 
 not arbitrarily say the failure ipso facto created 
 a forfeiture. Arkansas Ins. Co. s. Boatick, 
 27 Ark., 539. 
 
 41. The plaintiff introduced evidence tend- 
 ing to prove an application made to defend- 
 ant's agent for a policy on the life of plaintifi^s 
 husband, and the payment of $50 on account 
 of the first year's premium, provided the de- 
 fendant should conclude to make the policy. 
 The application was received by defendant, a 
 policy made and foi-warded to the agent for 
 deliveiy, but it did not reach his hands until 
 after the death of plaintiff's husband. Held, a 
 valid contract; for the moment the company 
 concluded to take the insurance, the $50 paid 
 to the agent became tlie property of the com- 
 pany absolutely, and the plaintiff became en- 
 titled to a policy, hence it was error to non- 
 suit the plaintiff. Cooper v. Pacific Mut. Ins. 
 Co., 7 Nev., 116. 
 
 42. An open or running marine policy to 
 insure " The various sums to be indorsed on it 
 upon treasure, bullion and bonds laden or to 
 be laden on seaworthy steamships, steam- 
 \ essels or propellers, beginning tlie adventure 
 upon said treasure, bullion and bonds from 
 and immediately after tlie loading thereof at 
 certain ports named, risks applicable hereto to 
 be reported to this company for indorsement 
 as soon as known to the insured; to cover 
 treasure and bullion shipped by W. F. & Co. 
 at their risk, by reason of their assuming the 
 responsibility of assurance thereon.'' A ves- 
 sel was lost with treasure shipped by W. F. & 
 Co.; advices of it were on the vessel and 
 lost with her, but duplicate advices sent by 
 the following steamer, were reported and in- 
 dorsed upon the pol icy to the amount of $6,158 ; 
 but while the vessel was en route, a messenger 
 or servant of W. P. & Co., in the course of his 
 business, as such, received from passengers ou 
 board, $7,342.50, to be carried by W. F. & Co., 
 
 165 
 
331 
 
 CONTRACT. 
 
 332 
 
 What is complete. 
 
 and for which he gave ^liipper's receipts 
 against all perils; while the vessel lay at the 
 port of departure, the messenger received 
 $2,657.50, for which he gaye similar receipts, 
 and notified the local agent of W. P. & Co. of 
 the possession of these sums, in order that 
 they might be embraced in his letter of ad- 
 vice ; but the local agent forgot and omitted to 
 do su, and gave notice only of the sum first 
 mentioned. So soon as the messenger arrived, 
 application was made for these sums to be in- 
 dorsad on the policy, but insurer refused. 
 Held, the policy commenced when the treasure 
 was actually on board at one of the specified 
 ports in the possession of the messenger of 
 insured for transportation ; it was immaterial 
 whether it was taken on board at one of the 
 ports named or some other place in the course 
 of the voyage ; it was the duty of insured to 
 report to insurer the amount of the shipment 
 so soon as the fact was known to insured, by 
 whatever method information was obtained; 
 the insured wsis not at liberty to await advices 
 from their agent, if they obtained the informa- 
 tion from other sources; advices of any ship- 
 ment from the agent were not required by the 
 policy; the company was liable notwith- 
 standing the loss had occurred and was 
 known to the parties before the indorse- 
 ment was made. WelU v. Pacific Ins. Co., 44 
 Cal., 397. 
 
 43. The agent made and delivered a receipt 
 for the premium to insure £500 for one 
 year, subject to the approval of the parent 
 office, but to he a binding contract for at least 
 twenty-one days, within which time the ap- 
 plication was to be submitted and approved 
 or rejected. It was dated October 27th. The 
 property was consumed December 1st, at 
 which time no policy had been sent to the 
 agent; but insured had applied to him for it, 
 and, relying upon the fact that he had not re- 
 ceived notice of its rejection, he replied that 
 the risk had been taken. After the loss, the 
 company insisted that it had not been accepted. 
 Seld, the company was bound to make the 
 loss good. Penly v. Beacon Ins. Co., 7 Grant 
 Ch., 130. 
 
 44. The policy was not made at the time 
 the fire occurred, and insurers refused to make 
 it because it appeared the building had cost 
 but $3,837, including materials valued at $130 
 to be used in finishing, and $335 the value of 
 a veranda. Held, no defense to the action. 
 
 ■166 
 
 Laidlaw v. Liverpool a-nd London Ins. Co., 13 
 Grant Oh., 337. 
 
 45. Insurers accepted a risk on freight, 
 March 11th. She was lost the 16th. Insured 
 demanded a stamped policy on the 17th, but 
 he did not communicate the loss to insurers, 
 and then, for the first time, they required to 
 be informed as to the amount insured upon 
 the hull: and, in the policy they inserted: 
 " Hull warranted not insured for more than 
 £3,700, after March 20th." There was an ad- 
 ditional insurance of £500 in a club company, 
 which was to expire March 20th, to be con- 
 tinued from year to year, unless ten days' no- 
 tice should be given of ah intention to discon- 
 tinue it; and in the absence of notice to that 
 efiect, all policies were to be treated as re- 
 newed on the day of their expiration. Held, 
 the warranty was complied with, for there 
 could be no continuation of that policy, the 
 vessel being lost before it expu'ed ; that the 
 risk being accepted March 11th, insurers were 
 bound by the terms then entered into, and 
 could not insert additional terms for their 
 own benefit (citing Cory d. Patton, 7 L. R. Q. 
 B., 304). Lishman d. Northern Maritime Ins. 
 Co., 8 L. R. C. P.. 316; 43 L. J. C. P., 108; 31 
 W. R., 386; 38 L. T. (N. S.), 165; affirmed, 10 
 L. R. C. P., 179. 
 
 46. The registered deed of settlement pro- 
 vided: " The common seal shall not be affixed 
 to any policies except by order of three di- 
 rectors, signed by them, and countersigned by 
 the manager." Another section provided: 
 "Every policy shall be given under the hand 
 of not less than three of the directors, and 
 sealed with the common seal." Held, a policy 
 executed and sealed with the common seal, 
 signed by tliree directors, one of whom was 
 manager, was valid, notwithstanding there 
 was no previous order for it, signed by three 
 directors and countersigned by the manager ; 
 the simple omission of a formality, or va- 
 riation from a form required by the deed of 
 settlement, could not make the contract a nul- 
 lity. Prince ofWales Life Ass. Co. v. Harding, 
 El. Bl. & El., 183; 8. c, 4 Jur. (N. S.), 851; 27 
 L. J. Q. B., 297. 
 
 47. W. was authorized to accept or reject 
 applications in behalf of defendant. He ac- 
 cepted the risk and received the premium; 
 but the plaintiflF supposed that W. was the 
 agent of another company, and upon re- 
 ceiving a receipt for the premium, wrote. 
 
333 
 
 CONTRACT. 
 
 331 
 
 What is not complete. 
 
 that he did not want to change, if the 
 old office was willing to take the insurance; 
 that he knew nothing about the defendant 
 company, and should require to be made 
 satisfied of its respectability and stand- 
 ing before he consented. The premises 
 were consumed by fire five days thereafter. 
 Held, a completed contract. Madde v. Euro- 
 pean Ass. Co., 17 \V. R., 987; 21 L. T. (N. S.), 
 103. 
 
 48. Defendants made a policy to reinsure 
 plaiDtifi°s : " All sums which they might have 
 at risk above £5,000, taken by the plaintiffs' 
 agents on goods in any ship (of a certain class) 
 flrom Calcutta to London, to be thereafter de- 
 clared." From time to time, as plaintiffs re- 
 ceived the names of the ships and the partic- 
 ulars of the amount of excess on each, they 
 declared the names and amounts to defend- 
 ants, and indorsements were made to corre- 
 spond, upon the policy. March 16, 1860, there 
 remained upon this policy £5,000 unappro- 
 priated. On the same day a telegram, dated 
 Calcutta, March 10th, arrived in London, 
 which stated, " Ship Red Gauntlet burned and 
 scuttled, some cargo will be saved." On 
 March 17th, plaintiffs appropriated the re- 
 maining £5,000 to other ships. On the 19th 
 of March, the defendants extended the policy 
 £10,000, and on March 21st the plaintiffs re- 
 ceived instructions from their Calcutta agent, 
 that there was an excess of risk on the Red 
 Gauntlet, of which the defendants were imme- 
 diately notified, and were informed that the 
 amount of the risk in excess of £5,000 would be 
 indorsed upon the policy as of the 19th of 
 March. March 26th, full particulars from Cal- 
 cutta were received, and plaintiffs indorsed the 
 excess and made a declaration thereof to the 
 defendants. March 24th, the defendants ex- 
 tended the policy £20,000. Sdd, the fact that 
 the accident to the Red Gauntlet was known 
 at the time the policy was extended (March 
 19, 1860) did not affect the plaintiffs' right to 
 recover, because it was not known to either 
 party that she was one of the ships on which 
 any risk had been taken. That the words, 
 " to be declared," did not give the defendants 
 the right to reject the risk when declared, for 
 it meant, as soon as an excess over £5,000 has 
 been taken by the plaintiffs, they will declare 
 the name of the ship to which they will ap- 
 ply the defendants' policy. Okdttanes v. Roy- 
 al Exchange As». Co., 5 B. & S., 797; s. c, 11 
 
 Jur. (K S.), 108; 34 L. J. Q. E., 30; 13 W. R., 
 71; 11 L. T. (N. S.), 305. 
 
 49. The insurers were resident in London, 
 but had an agent in Glasgow with whom C. 
 and D. made an insurance upon a vessel and 
 took from the agent an agreement for a policy. 
 There was no exception in it suspending the 
 policy while the vessel should be at sea. The 
 agent transmitted the order for the policy to 
 his principals, who sent a policy to him, 
 which contained a clause exempting insurer 
 from claim while the vessel should be at sea. 
 It was not demanded by, nor was it delivered 
 or shown to insured, who renewed the policy 
 through the same agent at the end of tlie year. 
 The memorandum of renewal refeiTcd to the 
 specific policy then in the agent's office in 
 Glasgow. It was neither demanded by, de- 
 liveied nor shown to insured; and soon after 
 she was destroyed by fire at sea. Held, the 
 memorandum delivered to the insured was the 
 contract between the parties; that the policy 
 was not the contract, because it did not con- 
 form to the original agreement, and because 
 the insured was never informed as to the ex- 
 emption, and therefore insured never adopted 
 the policy; also, the renewal had reference to 
 the original agreement, and insurers were 
 bound to execute it conformably to the stipu- 
 lation of the original agreement. Pattiaon v. 
 MiUs, 2 Bli. (N. S.), 519; 1 Dow & C, 342. 
 
 IV. "What is not complete. 
 
 1. " On coffee, laden or to be laden on board 
 good vessel or vessels from Rio Janerio to any 
 port in the United States, to add an additional 
 premium if by vessels lower than A. 2, or by 
 foreign vessels. Having been paid the con- 
 sideration of this insurance by the insured or 
 his assigns at and after, at the rate of one and 
 a half per cent, the premium on risks to be 
 fixed at the time of indorsement, and such 
 clauses to apply as the company may insert 
 as the risks are successively reported." The 
 practice was for the agent at Philadelphia to 
 indorse the risks, transmitting the indorsement 
 to his principals in New York, they to name 
 the premium and communicate it to insured. 
 Insured applied to the agent to indorse a ship- 
 ment on the " Mary " from Rio to New Orleans, 
 which was communicated to the company, for 
 it to fix the premium. At first the company 
 declined the application, on account of the 
 
 167 
 
333 
 
 CONTRACT. 
 
 336 
 
 What is not complete. 
 
 alleged inferior character of the vessel ; but, as 
 irsured insisted npon his right to have her in- 
 sured within the terms of the policy, the com- 
 pany fixed the premium at ten per cent, gen- 
 erally, or two and a half per cent, against total 
 loss only. This rate of premium insured re- 
 fused to pay, and she was lost on the voyage. 
 Held, when goods were laden upon vessels 
 classed below A. 2, a mere declaration thereof 
 was not enough to complete the contract; that 
 the additional premium which insurer re- 
 served the right to fix at the time the risk was 
 declared must be paid or secured by the in- 
 sured, or the contract was not complete in re- 
 spect to it. Orient Mut. Ins. Co. ■o. Wright, 23 
 How., 401 ; Sun Mut. Ins. Co. v. Wright, id., 
 412. 
 
 2. June 5, 1867, T. made application to in- 
 surer's agent at San Francisco for a policy on 
 his life for $5,000, and delivered to him his 
 promissory note for $99.30, the amount of the 
 first quarterly premium. The agent gave him 
 a receipt for that sum as the first quarterly 
 premium, the policy to take eflFect from that 
 date, provided the application should be ac- 
 cepted ; the premium to be refunded in case it 
 sliould be rejected. The agent transmitted the 
 application by steamer to his principals at 
 New York, the time for transmission being 
 from twenty-three to thirty days. A policy 
 dated April 5th, reciting payment of the pre- 
 mium, was sent to the agent at San Francisco 
 for insured, together with two receipts signed 
 by the oflBcers in New Tork to be counter- 
 signed by the agent, dated April 6th and July 
 6th, respectively, purporting to be receipts for 
 two quarterly premiums commencing at their 
 respective dates. They were countersigned by 
 the agent and the stamps canceled. The pol- 
 icy stipulated: "If the said premiums shall 
 not be paid on or before the days above men- 
 tioned for the payment thereof, the said com- 
 pany shall not be liable for the sum insured, 
 or any part thereof." A clerk in the office of 
 the agent at San Francisco wrot« ^ letter Au- 
 gust Sth, advising T. that the policy had ar- 
 rived, and inquiring whether it should be sent 
 to his address at Vallejo, or whether he would 
 call for it, which letter was found among the 
 eflTects of T. after his decease. Y. was shot 
 August 21, 1867, conveyed to a hospital, and 
 remained there until he died, September 20th 
 following. The agent tore the seal and presi- 
 dent's signature from the policy October 81st. 
 168 
 
 Payment of the claim was refused. Held, the 
 policy transmitted was not in accordance with 
 the terms of the receipt. The indispensable 
 element of the consent of one of the parties 
 did not exist. Hence there was no contract 
 (reversing s. c, 3 Sawyer, 325; S. C. TJ. S). 
 Mutual Life Ins. Co. v. Young, 5 Ins. L. J., 17. 
 
 3. B., an insurance broker, accustomed to 
 procure risks for defendant, examined plaint- 
 iffs premises and forwarded to the defendant 
 a written and printed application, signed by 
 the plaintifif, wliich stipulated that "Any mis- 
 representation or suppression of material facts 
 shall destroy the applicant's claim for dam- 
 age or loss, and the company shall not be 
 bound for any act done, or statement made to 
 or by any agent or other person not contained 
 in this application." Defendant's president, 
 on receiving the application, replied: "The 
 risk will be taken at two per cent., and if the 
 plaintiff wishes the insurance at that rate, 
 send a new application." B. told plaintiff 
 that he thought there must be some mistake 
 about it; that the risk would be taken at a 
 lower rate. Plaintiff' signed a new applica- 
 tion, dated October 18, 1854, a mere copy of 
 the former, in which insurance was asked on 
 a stone dwelling house. It was transmitted 
 to defendant and declined immediately after 
 received. The premium was paid to B. No- 
 vember 1st, and the house was burned the fol- 
 lowing day. (The case does not show when the 
 application was transmitted.) The premises 
 were a stone building with a wooden kitchen, 
 12x14 feet, one story, attached. Held,, the de- 
 fendant proposed to insure a stone house, 
 which was accepted by the plaintiff; that as 
 the house was part wood and part stone, the 
 proposition did not embrace it (dissenting, 
 Strong and Allen, JJ.). Chase d. Hamilton 
 Ins. Co., 20 N. Y., 52; s. c, 22 Barb., 527. 
 
 4. Policy one year from July 21, 1845. 
 Stipulated: "It may be continued for such 
 further time as may be agreed on, provided 
 the premium therefor is paid and indorsed ; " 
 also, " No insurance, whether original or con- 
 tinued, shall be considered binding, until the 
 actual payment of the premium." The pre- 
 mium was paid for the year ending July 21, 
 
 1847, and for the year ending July 31, 1848. 
 The premises were consumed September 10, 
 
 1848. The plaintiff offered to prove that while 
 the original policy was in force, a verbal 
 agreement was made between the parties, that 
 
337 
 
 CONTRACT. 
 
 338 
 
 What is not complete. 
 
 until notice to the contrary should be given 
 by one party to the other, the defendant should 
 i-enew the policy from year to year ■without 
 further notice, and deliver a certilicate of re- 
 newal, and that the plaintiff should pay the 
 premium therefor on demand ; that it was the 
 usage for the defendant to make such verbal 
 agreements, and to pay losses in pursuance 
 thereof; that the defendant renewed the 
 policy for 1846 and 1847, and delivered the 
 renewal certificates, and that plaintiff, within 
 a few days after their delivery, paid the pre- 
 mium in pursuance of that verbal agreement. 
 ffeld, the evidence was admissible; that it was 
 not obnoxious to the rule which prohibits 
 parol testimony to vary a written instrument, 
 for a proviso in a policy already executed and 
 delivered, declaring that premiums must be 
 paid in advance, has no effect, except to im- 
 part convenient information to persons who 
 wish to be insured ; that it had no effect upon 
 a delivered perfect contract, nor could it pre- 
 vent the parties from making such future 
 contract as they pleased ; that for any renewal 
 or continuation of the policy it was competent, 
 for the parties to make a parol agreement to 
 waive the cash premium, and to substitute 
 therefor a promise to pay on demand at a 
 future day. First Baptist Church v. Brooklyn 
 Fire Ins. Co., 19 N. T., 305; 8. c, 18 Barb., 69. 
 But upon another trial it was proved that in- 
 surers declined to renew the policy July 21, 
 1847, unless insured would pay an enhanced 
 rate of premium, which they did. Held, if the 
 premium was varied, a new assent of the 
 parties to the agreement for an indefinite re- 
 newal must be established, because a change 
 of the premium was a refusal to continue the 
 risk for an indefinite period, s. c, 28 N. Y., 
 153 ; 8. c, 23 How. Prac., 448. 
 
 6- Stipulated: "Not to be binding until 
 after the payment of the premium." B., of 
 his own motion, filled up two policies in the 
 name of the plaintiff, for two companies of 
 which he was agent. Plaintiff being absent 
 from the city, the agent left them with plaint- 
 iff's clerk, with instructions that when the 
 plaintiff returned he should pay the premium 
 if the policies should be accepted, or return 
 them if he chose. Evidence was given to 
 show that the agent was accustomed to waive 
 the condition of the prepayment of the pre- 
 miums. H^d, so long as the policies were 
 unaccepted they had no subsisting force, be- 
 
 cause the company had no right of action for 
 the premium. The ackhowledgment of the 
 receipt of premium, like the instrument, was 
 provisional, to take effect when acceptance 
 should be signified. Wood v. Pouglikeepsie 
 Ins. Co., 83 N. Y., 619. 
 
 6. The Bowditch Mut. Ins. Co. made the 
 policy for a term of five years. That com- 
 pany, the Essex Mutual and the Lawrence 
 Mutual were consolidated and incorporated 
 by the name of the Hamilton Mut Ins. Co., 
 conditioned not to take effect until it shall be 
 accepted by the members of said corporations 
 respectively, at a meeting called for that pur- 
 pose. Meld, the plaintiff could not recover 
 against this defendant unless he proved an 
 acceptance of the act consolidating the three 
 companies. Gardner v. Hamilton Ins. Co., 83 
 N. Y., 431. 
 
 7. Policy " On the good bark called the Em- 
 press, or by whatever other name or names the 
 vessel is, or shall be named or called." The 
 plaintiff claimed to recover for the loss of the 
 bai-k St. Mary. Held, that unless the evidence 
 showed that the insurer intended to take the 
 risk on the bark St Mary, no contract existed, 
 because the minds of the parties did not 
 meet Hughes v. Mercantile Mut. In*. Co., 55 
 N. Y., 265; reversing s. c, 44 How. Pr., 351. 
 
 8. President of an insurance company 
 agreed orally to insure certain sums upon 
 certain property, for a time specified, at a cer- 
 tain rate of premium, and on the following 
 day he made memorandum thereof upon the 
 company's books. A few days thereafter, one 
 of the owners saw company's surveyor and 
 told him the risk was to be differently appor- 
 tioned. The surveyor requested one of the 
 owners to go and settle the apportionment, 
 and a few days before the fire occurred, he 
 told one of the owners to go that afternoon 
 and settle it, or the company would not con- 
 sider itself liable for any loss. Nothing fur- 
 ther was done; no policy issued and no pre- 
 mium paid when the property was consumed. 
 Held, not a consummated cantract, because 
 there was no implied agreement, for a credit 
 of the premium beyond the time necessary to 
 prepare the policy, and the neglect to pay the 
 premium after called upon to consummate the 
 contract was an abandonment of the agree- 
 ment Sandford v. Trust Fire Ins. Co., 11 
 Paige, 547. 
 
 9. An agent authorized to solicit and make 
 
 169 
 
339 
 
 CONTEACT. 
 
 340 
 
 What is not complete. 
 
 contracts for insurances agreed to furnish a 
 policy in which there should be a special 
 provision, Tliat if at the end of three years the 
 plaintiff desired to terminate the policy, the 
 company would repay the amount of premi- 
 ums, without interest. A policy was offered 
 which did not contain that provision. Held, 
 no contract. Tifft v. Phcenix Mviual Life Ins. 
 Co., 6 Lans., 198. 
 
 10. Plaintiff had a policy in the Andes Ins. 
 Co. He made application to defendant's 
 agents to cancel that policy, obtain what re- 
 turn premium they could get, and to credit it 
 to him for insurance in another company. 
 The Andes refused to pay the return premium, 
 of which plaintiff was informed; but it seems 
 the agents applied to defendant for a policy, 
 and one was sent, but it did not arrive until 
 after the loss, and it stipulated: ''If the pre- 
 mium shall not have been paid, such insu- 
 rance shall be void." He made preliminary 
 proof of loss, and claimed against the Andes 
 Company. Held, no contract with the defend- 
 ant. Train v. Holland Purehaie Ins. Co., 1 
 Hun. (N.T.), 537; s. c, 3 N. T. S. C, 777; 
 reversed, directing the court to refer it to a 
 jury. Ct. of App. 5 Ins. L. J., 177. 
 
 11. F. applied to defendant's agent to in- 
 sure his house. The agent knew that F. 
 owned and resided tlie year previous in a 
 house on the Cornwall road, but at the time 
 the applicatiou was made, insured had 
 ceased to reside there, and then owned and 
 resided in another house. Held, no contract, 
 for the minds of the parties never met. Mead o. 
 WestcTuster Fire Ins. Co., 3 Hun. (N. T.), 608. 
 
 1 2. The person who made application for in- 
 surance testified that the risk was taken, $2,500 
 at two per cent. Held, i n the absence of evidence 
 to show ths time for which the insurance was 
 made, no recovery could be had. Tyler n.New 
 Amsterdam Fire Ins. Co., 4 Kob. (N. T.), 151. 
 
 13. December 29, 1830, plaintiff wrote from 
 Kennebunk, Maine, asking defendants on 
 what terms they would insure brig Hesper 
 and cargo from Martinico to United States. 
 January 1st, defendants answered, two and a 
 half per cent., which was received by plaintiff 
 January 3d, on which day he replied, request- 
 ing a policy on the terms mentioned. But in 
 the meantime, January 3d, defendants wrote 
 plaintiff, declining to take the risk. Held, 
 not a completed contract. MeCulloeh v. Eagle 
 Ins. Co, 1 Pick., 378. 
 
 170 
 
 14. Owner of property made oral applica- 
 tion for insurance ; the company sent an ap- 
 plication and premium note for him to sign. 
 He signed and delivered them to his agent 
 (who was the postmaster) to transmit to the 
 company; but before they were transmitted, 
 the property burned. Held, not a completed 
 contract, because the papers were within the 
 control of the princ'.pal. Thayer v. Middlesex 
 Mut. Ins. Co., 10 Pick., 326. 
 
 15. Where a person makes application to a 
 mutual insurance company for insurance, and 
 the policy is made but he refuses to accept it, 
 no action will lie against him for the premium, 
 because the contract was nat completed ; and 
 it is immaterial that the rate of premium was 
 agreed upon by the parties. Real Estate Mu- 
 tual Fire Ins. Co. v. Boessle, 1 Gray, 336. 
 
 16. Policy to Gerrish, dated March 1, 1857, 
 subject to by-laws, payable in case of loss to 
 Brewer, mortgagee. The by-laws provided: 
 " Before the policy shall be delivered, the per- 
 son insured shall pay such premium and give 
 such note for deposit as the president and 
 directors shall from time to time determine." 
 December 11, 1854, Gerrish, being present and 
 a director, the directors voted: "Premiums 
 on all policies shall be payable within thirty 
 days from date of policy, and if not paid 
 within sixty days, the policy shall be consid- 
 ered canceled." This policy was never deliv- 
 ered, and no deposit note or premium was 
 paid or delivered at the time the fire occurred, 
 June 9, 1857. G. hatl formerly procured other 
 policies upon property which he owned, and 
 this was renewed in pursuance of an oral 
 agreement between the defendant's president 
 and G. August 11, 1857, an assessment was 
 laid for the loss, and G., who was largely in- 
 Eured on other risks, paid his proportion. 
 Held, the effect of the by-law was, that the 
 contract should not be completed nor the pol- 
 icy take effect until the premium was paid 
 and premium note delivered. Brewer «. CfieU 
 sea Mutual Fire Ins. Co., 14 Gray, 203 ; Bucffum 
 D. Fayette Mutual Fire Ins. Co., 8 Allen, 360; 
 Mulrey v. ShawmiU Mut. Ins. Co., 4 id., 116. 
 
 17. "On property lost or not lost on board 
 vessel or vessels, steamboat or steamboats, ox 
 land carriage, at and from ports or places to 
 ports or places." All sums at risk under this 
 policy to be indorsed hereon, and valued at 
 the sum indorsed, at such per cent, as shall be 
 written against each indorsement. On Mon- 
 
341 
 
 CONTRACT. 
 
 342 
 
 What is not complete. 
 
 da3', March 33d, insured told his accountant 
 and bookkeeper tliat goods were coming, and 
 it would be necessary to get an indorsement 
 on the policy. He omitted to do so that even- 
 ing, and the next morning as soon as he 
 reached the store he took the policy, carried 
 it to insurer's oflSce, and requested an indorse- 
 ment of $4,000 on goods from Philadelphia. 
 The insurer's clerk said the steamer was lost 
 xrith all on board, ffeld, all indorsements 
 ■were to have the concurrence and sanction of 
 both parties; it was a mere inchoate contract, 
 practically a new and separate insurance on 
 each successive parcel of goods, as they were 
 indorsed on the policy and a rate of premium 
 agreed upon. Hartshorn c. STtoe and Leather 
 Dealers Ins. Co., 15 Gray, 240. 
 
 18. The agent of insurer testified, that he 
 oflFered the policy to insured, who said he 
 could not pay for it; but the wife of the de- 
 ceased, the plaintiff, testified that the agent 
 said he had bronght the policy, and the de- 
 ceased told the agent to go to B., who would 
 pay him the premium, and that the agent 
 agreed to do so. The agent did not go to B., 
 but returned the policy to the general agent. 
 A few days thereafter it was discovered that 
 the agent had not called upon B. for the pre- 
 mium. Plaintiff sent it to the general agent 
 who refused it The deceased was ill at the 
 time the policy was offered, and died in about 
 two months thereafter. Held, an arrangement 
 between the deceased and B. on the one hand 
 with the agent that the premium should be 
 paid by, and the policy delivered to B., and a 
 failure of the agent to call on B. for the pre- 
 mium were not equivalent to an actual pay- 
 ment and delivery. Hofft v. Mutjial Benefit 
 Life Ins. Co., 98 Mass., 539. 
 
 19. The question was whether there was a 
 delivery of the policy, either actual or con- 
 structive. The plaintiff testified, referring to 
 the agent : " He came in, said to my husband, 
 'I have brought your policy;' my husband 
 said he 'was very glad of it; ' took it, looked 
 at it, passed it to me and said, ' here, Eliza, is 
 your policy;' I took it, glanced it over; my 
 husband said to the agent ' I am not feeling 
 well enough to attend to this business to-day, 
 but I have made arrangements with Mr. Banks 
 to do it for me ; ' the agent said he would go ; 
 I passed him the paper as he n)se to go out of 
 the room, and he went over there, or said he 
 would go, to Mr. Banks." Held, there was no 
 
 evidence that the agent intended, or that the 
 deceased or his wife understood that the pol- 
 icy became her property by reason of what 
 occurred at that interview ; and a verdict and 
 judgment founded thereon, was not warranted. 
 Markey v. Mutual Benefit Life Ins. Co., 103 
 Mass., 78. 
 
 20. A person not authorized applied in the 
 owner's name for insurance upon a building, 
 " occupied as a machine shop." It was in 
 fact occupied as an organ factoi-y, the risk of 
 which was greater than a machine shop. In- 
 surers had no knowledge of its occupancy; 
 but insured accepted the policy and paid the 
 premium. Held, the contract was void, for the 
 minds of the parties never met upon the sub- 
 ject matter of insurance. Ooddard v. Monitor 
 Ins. Co., 108 Mass., 56. 
 
 21. A. made application for a policy on his 
 life, $5,000. The agent accepted the premium 
 and delivered a receipt providing for the de- 
 livery of a policy within thirty days from 
 date, or if the application shoald be rejected, 
 to return the premium on demand; no liabil- 
 ity being assumed by the company " unless 
 the said risk is approved and a policy issued 
 at the home oflSce at New York." The com- 
 pany approved the application and sent a pol- 
 icy to the agent. A died six days after the 
 payment of the premium and before delivery 
 of the policy. Held, the receipt was not a 
 present insurance for thirty days or until a 
 policy should be furnished. It was not an 
 absolute agreement to insure or to make and 
 deliver a policy. There was no liability until 
 delivery of a policy to the person insured. 
 Marks v. Hope Mutual Life Ins. Co., 117 Mass., . 
 528. 
 
 22. Action on premium note; the maker 
 had requested insurance on 26 horses and 20 
 oxen. The company replied that the risk 
 would be taken at fifteen per cent. ; or, at ten 
 per cent., if the stock were warranted safe 
 December 7th, and that no partial loss would 
 be paid under ten per cent. The maker re- 
 plied accepting the terms, and ordered a policy 
 on 26 horses valued at $2,200, and on 20 oxen 
 valued at $800. The company sent a policy 
 for 46 head of horses and oxen valued at $8,000. 
 The maker of the note returned it and de- 
 manded his premium note, which was refused. 
 Held, no recovery could be had. Ocean Ins. 
 Co. V. Carrington, 8 Conn., 357. 
 
 23. Defendant's agent casually meeting C, 
 
 171 
 
34a 
 
 CONTRACT. 
 
 844 
 
 What is not complete. 
 
 asked him to insure his life. C. replied that 
 he was on a trip to New Tork, intending to 
 be absent ten or twelve weeks, and could not 
 attend to it at that time; but, upon being 
 pressed, he signed an application and submit- 
 ted to a medical examination. It was agreed 
 that when the policy should be received, it 
 should be sent by mail to the address of C. at 
 New Tork, who was to send the premium or 
 to return the policy; the policy to take effect 
 wlien the premium should be paid. The de- 
 fendant accepted the application and the pol- 
 icy was sent to the address of C. at New York, 
 ■where it was not called for, and was returned 
 to the agent, who then sent it to another place 
 where he expected it would reach the hands 
 of C. ; but C. died two days before it was mailed 
 for the last place. Held, not a completed con- 
 tract. Rogers v. Cha/rter Oak Life Ins. Co., 41 
 Conn., 97. 
 
 24. W. was appointed agent and surveyor 
 with authority to receive applications for in- 
 surance and the cash payment to be made 
 thereon. He received $25, October 9, 1851, as 
 cash premium for insurance upon property 
 specified. There was conflicting evidence as 
 to whether he had mailed the application; but 
 the company proved that it had never been re- 
 ceived. The loss took place six months after 
 the agent received the premium. Held, the 
 company was chargeable with having received 
 the proposal because the agent was authorized 
 to receive it; but the company's failure to re- 
 ject it did not amount to an acceptance ; that 
 the plaintiff had the power to correct the de- 
 lay, because the failure to accept ought to have 
 been treated by him as a rejection ; for a pro- 
 posal not answered remains a proposal for a 
 reasonable time, and is then treated as with- 
 drawn. Inturatiee Co. v. Johnson, 33 Penn. St., 
 72. 
 
 25. Policy to wife on the life of husband. 
 He concluded to increase the amount, $2,000, 
 to $5,000, to which the agents assented, fixing 
 the premium at $101, one-half cash and one- 
 half premium notes, at twelve months with in- 
 terest, to surrender the old when the new pol- 
 icy should be Issued. The new policy was 
 sent by insurers to their agents, who sent 
 it to the husband, stating that the whole 
 premium must be paid in cash, requesting 
 him to return the policy if he could not accede 
 to the terms. He retained the policy, and died 
 about four months after, not having remitted 
 
 172 
 
 the balance of cash, $3.57, nor any reply to 
 the agent's letter, ffeld, the proposal of in- 
 sured was not accepted; that a counterpro- 
 posal, in the shape of a new policy, was sent to 
 him, and his assent to this, according to its 
 terms, was necessary to make a completed con- 
 tract. He was told that the whole of the pre- 
 mium must be paid in cash; there was no 
 final delivery until he complied with the pro- 
 posal ; that retaining the new policy did not 
 prove an acceptance of it, so long as .anything 
 else remained undone which he was required 
 to do. Myers t. Keystone Mutual Life Ins. Co., 
 27 Penn St., 268. 
 
 26. A policy was made and transmitted to 
 the general agent, founded upon an applica- 
 tion made by the deceased upon her life in 
 favor of her husband. The general agent re- 
 tained the policy for the insured to pay the 
 premium in the autumn. It was sent by the 
 agent to a person residing near the insured, 
 who was to take the premium and deliver the 
 policy. It reached the hands of that person 
 November 6th, and the party insured died the 
 following day, before any offer to deliver was 
 made. Held, not a completed conti-acL Col- 
 lins V. Insurance Co., 7 Phila., 201. 
 
 27. A party cannot be bound by a paper 
 which does not on its face purport to have 
 been made by him, or in his behalf, unless it 
 be shown that he has in some way adopted it 
 as his own, or agreed to be bound by it; and 
 it is error for the court to instruct the jury to 
 assume that the party is bound by the paper. 
 WitJierdl v. Maine Ins. Co., 49 Me., 200. 
 
 28. Stipulated : " No shipments to be con- 
 sidered insured until approved and indorsed on 
 this policy by this company. Indorsements val- 
 ued at the same, provided they do not vary from 
 the cost more than — per cent., beginning the 
 adventure from and immediately after the load- 
 ing thereof, etc." The course of dealing, be- 
 tween the parties, had been to have the goods 
 indorsed and afterwards on the day of sailing, 
 or shortly thereafter, for insured to furnish 
 insurer with an invoice showing the value, 
 then to complete the indorsement by writing 
 that in and the rate. November 8th, insured 
 applied to indorse a shipment of soap, etc., per 
 steamer "Kingfisher,"' which was done; the 
 next day a second application was made to in- 
 dorse bacon, which was done ; but it was writ- 
 ten upon the same line as the previous indorse- 
 ment, so that when the value of the soap was 
 
315 
 
 CONTRACT. 
 
 346 
 
 What is not complete. 
 
 written, the whole read, " Soap in boxes and 
 bacon, $510," which was the value of the soap 
 only ; and, after the vessel was over due, it was 
 discovered tliat no value had been extended 
 for the bacon. Held, the neglect of the plaint- 
 iff to furnish the value of the bacon before 
 the loss of the vessel was highly probable, did 
 not authorize him then to have it indorsed, 
 and, therefore, insurer was not liable. 8ch<x- 
 fer «. Baltimore Marine Ins. Co., 33 Md., 109. 
 29. Complainant applied to defendant for 
 insurance — $1,500 on his factory, fixtures 
 and stock therein — March 16, 1849. Defend- 
 ant's secretary accepted the offer at three per 
 cent., to which complainabt assented by letter; 
 but it miscarried ; and, subsequently, complain- 
 ant saw the spcretary, mentioned the fact tliat 
 he had sent the letter, requested a policy, and 
 offered to pay the premium. The secretary 
 replied that he did not know then how much 
 the balance would be ; that complainant might 
 send it at any time, and also assured complain- 
 ant that his property was then insured ; that 
 he would make out his policy and send it 
 right away. It was made April 18th, and on 
 the 20th the secretary inclosed a premium 
 note to complainant, requesting him to sign 
 and remit it with $7.30 cash, promising to 
 send the policy. The note was one of the 
 usual printed blanks, requiring complainant 
 to procure a surety for its payment. The 
 letter and n:)te were deposited in the post 
 office at Belleville April 21st ; and on the 22d, 
 before the note could be returned, the premises 
 were consumed by fira. Complainant ten- 
 dered the note and the money after the fire, 
 but they were refused. Held, not a completed 
 contract, because the act of incorporation pro- 
 vided that " Every person who shall become a 
 member by effecting insurance shall, before 
 he receives the policy, deposit his premium 
 note for such a sum as may be determined by 
 tlie directors;" that there was no contract 
 until tlie deposit of the note. Bellecille Mitt. 
 Ins. Co. c. Van WiTMe, 13 N. J. Eq., 333. 
 
 30. Open policy on such sums and property, 
 from such places, and on board such vessels, 
 as shall be mutually agreed upon between the 
 parties, and indorsed hereon. Insured applied 
 for $3,000 insurance on 10,987 bushels of com. 
 Insurer's secretary wrote that " The market 
 value, which was twenty-one cents per bushel, 
 and five per cent w.is insurer's rule, but that 
 it might stand insured until Monday, when 
 
 we shall be glad to see you upon the subject." 
 The cargo was lost on Sunday. Held, not a 
 completed contract ; that there was no accept- 
 ance of the modification of the value to be 
 insured. Neville <o. Merchants and Manvfac- 
 turers Ins. Co., 19 Ohio, 453; overrulins s. c, 
 17 id., 193. 
 
 31. The intestate agreed to pay $50 for an 
 insurance of $5,000 on his life for six months. 
 No policy was issued. Plaintiff alleged paj'- 
 ment of $45. Held, no cause of action. S. C. 
 N. C. Barnes «. Piedmont and Arlington Life 
 Ins. Co., 5 Ins. L. J., 141. 
 
 3 2. The agent of the owner of a lot of cotton 
 wrote to the company's agent, requesting him 
 to find Oliver Cromwell, and get particulars as 
 to how he would ship two lots of cotton, one of 
 fifty and the other of sixty bales, and to insure 
 them from Albany to Apalachicola, and to send 
 bills to him and he would remit by express. 
 The company's agent found Cromwell, ascer- 
 tained that sixty bales were on the steamer 
 White Rose, at Albany; that she would leave 
 next morning, and that the fifty bales would 
 go in one of tlie agent's " boxes." The com- 
 pany's, agent acknowledged the receipt of the 
 letter written by the owner's agent, and stated 
 how the cotton was shipped. About ten days 
 thereafter the steamer White Bose sunk in 
 Hell Gate, on her way to Apalachicola, and 
 the cotton was damaged $9,500. A few days 
 thereafter, the owner's agent saw the com- 
 pany's agent, and offered to pay the premium, 
 who refused it on the ground that the prop- 
 erty was not insured, because he was not in 
 the habit of advancing insurance premiums 
 for persons who ordered insurance. Held, a 
 case of fraud on the part of the company's 
 agent; that his principal was bound for the 
 care, diligence, fidelity and fraud of his agent 
 in the transaction. Seabrook t>. Vndei-tDrilers 
 Agency, 43 6a., 583. But upon a further hear- 
 ing of this cause, it appeared that the com- 
 pany's agent was also agent at the same place 
 for several other insurance companies, and 
 there was no proof to show for which of the 
 companies he was acting at the time he did 
 the acts from which the fraud was to be in- 
 ferred. Held, that without such evidence the 
 plaintiff could not maintain the action, s. c, 
 49 Ga., 563. 
 
 33. The plaintiff had signed an application 
 for a policy, in which there was a statement 
 that, " Only the home officers of the company, 
 
 173 
 
347 
 
 CONTRACT. 
 
 348 
 
 What is not complete. 
 
 in Macon, Ga., have authority to determine 
 whether or not the policy shall issue on appli- 
 cation." The agent gave a receipt for the 
 premium, "to be binding on the company 
 until the policy is received." The company 
 issued a policy for |5,000, sent it to the agent, 
 ■who went to deliver it, but found the insured 
 so drunk tliat he said nothing to him about it, 
 and returned it to the company, who marked 
 it "Canceled, rejected by the applicant." 
 There was no money paid, but the applicant 
 had given his note to the agent for the pre- 
 mium. Held, the company was not liable. 
 Cotton States Life Ins. Co. v. Scurry, 50 Ga., 48. 
 34. The defendant ordered the insurance, 
 the policy was made in due form, but he 
 never called for it and it was never delivered. 
 Held, the plaintiff could not recover the pre- 
 mium, unless the law or usage of the place 
 ■where the policy was ordered made it a com- 
 pleted contract and bound the company in 
 case of loss. Lindauer ®. Delaware Mutual 
 Safety Ins. Co., 13 Ark., 461. 
 
 35.' Application made February 7th, for in- 
 surance on ship. The secretary marked the 
 rate of premium, which was consented to by 
 the insured, and the policy was made. The 
 agent of the insured was expressly informed 
 that the policy would not be delivered until 
 payment of premium. Before the premium 
 was paid, and while the policy was in the 
 possession of the insurer, the ship was de- 
 stroyed by fire, at her dock. Held, not a com- 
 pleted contract. Berthovd c. Atlantic Ma/rine 
 and Fire Ins. Co., 13 La. (O. S.), 539. 
 
 36. "On goods and merchandise, to be 
 laden on board vessels, as interest may ap- 
 pear, adding ten per cent to invoices. Risks 
 to attach from time of shipment, which are to 
 be reported to insurers on receipt of invoices, 
 forindorsement." It was subsequently modi- 
 fied by indorsing: "This policy shall cover 
 merchandise to the address of insured from 
 European ports to New Orleans iiia Boston or 
 New York." Insurer's agent was informed 
 that certain goods would go by the Arctic. 
 The agent replied, "All right; but we will be 
 compelled to wait the receipt of the invoice 
 to indorse this on the policy." The purchas- 
 ers of the goods it seems embarked on the 
 Arctic. No bill of lading was ever taken for 
 the goods, nor was there any evidence that 
 the merchandise had been shipped as a part 
 of the cargo of that vessel. The company 
 174 
 
 refused to indorse the value of the goods on 
 the policy, and refused to pay the loss. Held, 
 by the terms of the contract, insured was 
 bound to present to insurer an invoice of the 
 goods and pay or secure the premium, and un- 
 til that was done, the contract was incomplete. 
 Douville V. Sun Mut. In*. Co., 12 La. An., 259. 
 
 37. The application provided it should not 
 be binding, " Until the first preiuium shall be 
 received by said company or some authorized 
 agent thereof, during the lifetime of the per- 
 son whose life is insured, such person being 
 still in good assurable condition;" and the 
 policy provided : " Not binding until counter- 
 signed by J. R. P., agent at New Orleans, and 
 the advance premium paid." Before the 
 policy was received by the agent at New 
 Orleans, the person proposed died. HtUd, not 
 a completed contract. Hardie v. St. Louis 
 Mutual Life Ins. Co., 26 La. An., 242. 
 
 38. " On shipments by good vessels for the 
 period of six months, from St. Louis to port 
 or ports on the western waters, and from the 
 same to St. Louis, or from Atlantic ports ma 
 New Orleans to St. Louis. Indorsements on 
 this policy to be evidence of property at the 
 risk of the company under the same." Goods 
 were shipped, consigned to the insured, but 
 lost before notice of the shipment The com- 
 pany refused to indorse the risk after notice 
 of the loss. Held, they were not bonnd to do 
 so under the terms of the contract. Mdwa/rds 
 V. St. Louis Perpetual Ins. Co., 7 Mo., 382. 
 
 39. Plaintiff made application for insur- 
 ance upon certain premises to an agent author- 
 ized to receive and forward it, who suggested 
 the rate of premium at nine per cent. Insured 
 also signed a blank premium note, and they 
 were forwarded to insurer's principal place 
 of business. The company made a policy at 
 the rate of fifteen per cent, sent it to the agent 
 and instructed him that he might return it 
 without charge if insured deemed the rate too 
 high. The agent was absent, but returned be- 
 fore the premises were burned; no demand 
 was made for the policy, nor was any offer 
 made to pay any portion of the premium in 
 cash. The company's charter required ten 
 per cent on the premium note to be paid 
 before any policy should be binding. Held, a 
 mere proposition which had not been assented 
 to. WaUinsford v. Home Mutual Fire and 
 Marine Ins. Co., 30 Mo., 46. 
 40. Policy to G. as agent, " in such sums, 
 
349 
 
 CONTRACT. 
 
 850 
 
 What is not complete. 
 
 from and to such places, on board such vessels 
 as shall be specified by the application and 
 mutually agreed upon and written on this 
 policy." Shipment was made September 1st, 
 and lost early on the 3d. In the afternoon of 
 tliat day, application was made for insurance 
 on them, but insured did not have the policy 
 with him at that time. The secretary entered 
 the application on his cargo book, and told 
 insured to bring his policy that the risk might 
 be indorsed (the practice was to pay premiums 
 at the end of every month). Immediately 
 after G. left the oflSce of the company, the 
 secretary took up the evening paper and saw 
 a notice of the loss. He •addressed a note to 
 G., slating that the goods were not insured, 
 and subsequently refused to indorse the risk 
 on the policy. -HeM, not a completed contract. 
 Plahto V. Merchants and Manufacturers Int. 
 Co., 38 Mo., 348. 
 
 41. " On steamboat ; loss, if any, payable to 
 B. & W." The person insured signed the note, 
 and directed his agent to deliver the policy to 
 B. & W., provided they indorsed the premium 
 note. They retained the policy and refused to 
 indorse the note. Held, B. & "W. were not en- 
 titled to recover. Bidwdl v. St. Louis Floating 
 Sock /?w. Co., 40 Mo., 43. 
 
 42. Insurer's agent solicited the complain- 
 ant to insure his property, the sum to be in- 
 sured was agreed upon, cash premium paid, 
 and a premium note made and delivered, for 
 the balance, and an application signed by 
 complainant, which, among other things, pro- 
 vided: "The policy is to bear date and take 
 effect at noon of the day this application is 
 approved." It was dated December 4, 1866. 
 The receipt given by the agent for the pre- 
 mium note stated that tlie cash and note were 
 to be returned if a policy is not issued. Held, 
 not a contract to insure. Winneshiek Ins. Co. 
 V. Hotegrafe, 53 111., 516. 
 
 43. A running policy on cargo stipulated 
 that it should not " cover loss or damage which 
 had accrued at the time of indorsement, 
 caused by gale, explosion, fire or otherwise, 
 which occurrence might be kni<wn to the ap- 
 plicant, the public or the company at the 
 time application was made to indorse, whether 
 such property was kuown to be involved or 
 not, without such contingency is expressly 
 provided for in this policy in writing." In- 
 surer made an indorsement upon the policy, 
 embracing certain property; but the name of 
 
 the vessel was not declared, for neither party 
 knew at that time what vessel would take the 
 goods; both parties knew that the steamboat 
 Carter had exploded her boilers and was lost. 
 The goods were on her, but neither party 
 knew the fact at the time. Held, they were 
 not covered by the policy. Mark v. .^tna 
 Ins. Go., 29 Ind., 390. 
 
 44. Stipulated : " Not binding until coun> 
 tersigned, etc., and advance premium paid." 
 At the time the insured made his application, 
 he executed two promissory notes, one due ou 
 the delivery of the policy for the cash premi- 
 um and the other in a year after date for the 
 deferred premium. The policy was made and 
 delivered to tlie local agent, but the insured 
 was taken very ill and the local agent never 
 delivered it. Held, the only question in the 
 case was, whether the note payable on the de- 
 livery of the policy was taken in payment of 
 the cash premium, of which fact the evidencic 
 was insuflScient, therefore there was no con- 
 summated contract. St. Louis Mutual Life 
 Ins. Go. 1). Kennedy, 6 Bush., 450. 
 
 45. The evidence showed that the time for 
 which the insurance was to run had not been 
 fixed by the parties. Held, an incomplete 
 contract. Strohn v. Hartford Fire Ins. Co., 37 
 Wis., 625. 
 
 46. Defendant received an application, 
 July 15, 1869, for insurance upon the life of 
 its agent at St. Paul, for the benefit of his 
 wife. A policy was made and transmitted to 
 the Minnesota agent, by whom it was receievetl 
 August 3, 1869. The applicant left the state 
 August 10th, for a temporary absence, leaving 
 his minor son in charge of his business. The 
 general agent delivered the policy to F., who 
 carried it to the store of the applicant, told 
 the boy that about $100 was to be paid in cash 
 and a note executed for the same sum. The 
 boy signed the note in behalf of his father, 
 but said that he could not pay the money. 
 The agenttook the policy and the note, say- 
 ing that he would keep them until the appli- 
 cant should return, and he would wait for Uio 
 money. The applicant died before his return. 
 Held, not a completed contract. Heiman v. 
 Plusnix Mutual Life Ins. Co., 17 Minn., 153. 
 
 47. September 1, 1870, plaintiff applied to 
 defendant's agent for a policy on the life of 
 her husband. One was offered, dated Sep- 
 tember 5th, requiring the premium to be paid 
 annually. She refused to receive it; and by 
 
 175 
 
351 
 
 CONTRACT. 
 
 352 
 
 What is not complete. 
 
 agreement, it was returned, a new policy 
 made, making the premium payable semi-an- 
 nually, which was received by insurer's agent 
 October 25, 1870. Her husband was taken ill 
 October 13th, and died on the 29th. She de- 
 manded the policy and tendered the premium 
 October 25th, which the agent refused, on the 
 ground that her husband was not in good 
 health. Held, when plaintiff refused to re- 
 ceive the first policy the parties stood exactly 
 where they would have been had insurer nev- 
 er accepted plaintiff's application. The sec- 
 ond policy was never delivered or offered to 
 be delivered ; there was nothing to show any 
 binding acceptance of plaintiff's last proposi- 
 tion; and insurers had a right to withhold the 
 second policy for any reason to themselves 
 satisfactory. Schwartz v. Qermania Life Ins. 
 Co., 18 Minn., 448. 
 
 48. The complaint alleged that complain- 
 ant was the holder of a policy issued by de- 
 fendant ; that about two weeks before it ex- 
 pired, defendant's agent agreed to renew it ; 
 that he failed to do so notwithstanding plaintiff 
 had in the hands of his agent money to pay the 
 premium. Held, no cause of action. CrogJian 
 V. New York Underwriters Agency, 53 Ga., 109. 
 
 49. Plaintiff applied to defendant's agent 
 at Nebraska City, October 11, 1865, for insur- 
 ance on the steamer " Sunset," which was then 
 lying at the wharf in St. Louis. The agent 
 said he could not issue a policy, hut would 
 take an application and send it to the general 
 agent of the company. She was lost while on 
 her way up the Missouri river, on the 17th. 
 No application had been written. On the 23d 
 plaintiff tendered the premium to insurer's 
 agent, which was refused. Plaintiff testified 
 that the agent made an oral contract to insure. 
 Held, the action could not be maintained 
 without conclusive proof that the contract 
 was made; if it was left in doubt upon the 
 whole evidence, the suit must be dismissed 
 (citing Nevill r>. Merchants and Manuf. Ins. 
 Co., 19 Ohio, 452). McCann v. JEtna Ins. Go., 
 3 Neb., 198. 
 
 50. H. applied to the Montreal Ass. Co., 
 through M., their manager and agent, to in- 
 sure the premises against fire, but being un- 
 able to pay the premium, the manager took 
 his promissory note for it, payable in twelve 
 days, and promised to deliver the policy. The 
 particulars of the contract were entered in 
 the books of the company. The note became 
 176 
 
 due and was dishonored, at which time no 
 policy had been issued, and the entry of in- 
 surance was erased from the company's books. 
 The premises were destroyed by fire about 
 four months thereafter. The statute incor- 
 porating the company provided, that all poli- 
 cies should be subscribed by three directors, 
 countersigned by the secretary and manager, 
 and sealed with the company's seal, and a by- 
 law to the same effect was passed. Held, the 
 acts of the manager were vitra vires and void. 
 Query : " Is a verbal contract of insurance 
 good under the law of Lower Canada?" 
 Montreal Ass. Go. v. McOiUvray, 13 Moore P. 
 C. C, 87. 
 
 61. She took the cargo at Leghorn, August 
 10th, put into Genoa on the 13th, and remained 
 there until January 5th following. The policy 
 was made on the 20th. Held, Genoa was im- 
 plied as the port of lading, and in the absence 
 of evidence to show that the underwriters had 
 notice of the loading at Leghorn, and the sub- 
 sequent delay, the policy was void. Hodgson 
 B. RicJw/rdson, 1 W. Bl., 463. 
 
 52. A rule, binding upon both parties, pro- 
 vided that vessels might sail after the time 
 limited, on payment of additional premium, 
 regulated by certain rates; and by another 
 rule, the insured was bound to give his ac- 
 ceptance for the premium. A neglect to give 
 it subjected him to a penally. Held, insured 
 could not, after a loss, elect to submit to the 
 penalty, pay the extra premium and have the 
 benefit of an extension of the date for sailing. 
 Graham v. Barras, 5 B. & Ad., 1011 ; 3 N. & M., 
 125. 
 
 53. 8. agreed to become a member, and to 
 be bound to contribute to the losses of other 
 members. The risk was accepted by the as- 
 sociation, on the ship of S., but no stamped 
 policy was issued. Held, no evidence of a 
 binding mutual contract, because there was 
 no stamped policy according to 35 Geo. Ill, ch. 
 63. In re London Mut. Ins. Go.. Smith's Gase, 
 4 L. R. Chan., 611. 
 
 54. Defendants authorized E. & Co., at Lon- 
 don, to accept risks and receive premiums. 
 Plaintiff instruced B. to procure insnrace 
 on steel rails. He prepared a memorandum 
 slip containing the particulars. It was in- 
 itialed by E. & Co. on behalf of defendants, and 
 a copy transmitted to defendants by E. & Co. 
 the same day. The premium and stamp duty 
 were paid to E. & Co. The defendants neg- 
 
353 
 
 CONTRACT. 
 
 354: 
 
 Modification or substitution. 
 
 looted to del iver a stamped policy. Seld, there 
 could be no recovery under 30 Vict, ch. 23, 
 sees. 7 and 9, because there had been no policy 
 made. Fisher «. Liverpool Marine Ins. Co.^ 8 
 L.J.RQ.B.,468; 42 L. J. Q. B., 224 ; 22 W. R., 
 13 ; 28 L. T. (N. S.), 867 ; affirmed, 9 L. R. Q. B., 
 418; 43 L. J. Q. B., 114; 22 W. R., 951 ; 30 L. 
 T. (N. S,), 501. 
 
 55. "On ship Martha of Saltcoats;" but 
 there was not any vessel of that name. In- 
 sured owned a vessel registered by the name 
 "Elizabeth and Pegy of Saltcoats," which 
 had been formerly called the " Martha of Salt- 
 coats." Meld, insurers were released. Watt o. 
 Ritchie, Faculty Dec, 1781 to 1787, p. 43. 
 
 56. Insured applied to insurer's agent, at 
 Edinburgh, to insure £2,000 on his wire mill ; 
 he then applied to the secretary of the de- 
 fendant to take £3,000. The secretary agreed 
 to take it at the same rate of premium which 
 should be made by the other company, and to 
 make and deliver a policy so soon as that of 
 the London company should come down; 
 that in the mean time he would be held in- 
 sured. The premium was offered, but he was 
 told it was unnecessary. The London com- 
 pany paid the loss, but this defendant refused. 
 EM, the evidence did not establish a contract, 
 for everything was dependent until the other 
 company should fix the rate of premium. 
 Christie o. North British Ins. Co., 3 C. C. S., 
 360. 
 
 57. R. proposed to effect an insurance on 
 his life for £1,500. Insurers addressed a letter 
 to R., informing him of their acceptance, 
 stating, "The policy will be issued on pay- 
 ment £354, 123. If the above sum is not paid 
 within fifteen days from date, a second medi- 
 cal examination will be necessary." This 
 letter was inclosed to their agent, who with- 
 held it, because R. had been taken ill. The 
 premium was tendered to the agent, who re- 
 fused it, and it was then deposited in bank for 
 the company. Held, the letter of acceptance 
 did not complete the contract until R. had an 
 
 I opportunity to assent to its terms. The case 
 was one of a proposal on one side, and a 
 counter proposal on the other without ac- 
 ceptance, and, therefore, not a completed con- 
 tract. Rose V. Medical Invalid Life Ass. Boe., 
 11 C. C. S., 151 S. C. Ibid, 345; 20 Scot. Jur., 
 534. 
 
 58. Application was made to insurers' agent 
 at Racine, to insure cargo of wheat from Ra- 
 
 12 
 
 cine to Cape Vincent. The agent agreed to 
 take the risk, subject to the approval of tlie 
 board at Toronto, to whom he submitted it, 
 and from whom he received instructions to 
 send the money, and policy would be issued. 
 He gave an interim receipt for the premium, 
 and was credited with the amount in the 
 books of the insured; but upon sending for 
 the money it was not paid because the cai-go 
 owners' accountant was absent, and before the 
 premium was paid the cargo was lost. The 
 company then refused to make the policy or 
 take the premium. Held, the plaintiffs could 
 not recover, for the risk was accepted condi- 
 tionally upon payment of the premium, and as 
 that was not made before the loss happened 
 the company had the right to reject the appli- 
 cation. Walker v. Provincial Ins. Co., 7 Grant's 
 Oh., 137; affirmed, 8 id., 217. 
 
 59. An agent authorized to accept premi- 
 ums and contract for the delivery of policies,, 
 accepted a risk subject to the approval of the 
 board of directors, and received the premium. 
 A letter was directed to the applicant, at his 
 post office address, within two weeks after the 
 date of the application, notifying him of the 
 rejection of his application. He omitted to 
 go to the post office, and did not receive the 
 letter until after the premises were consumed. 
 Held, the company was not liable, notwith' 
 standing the premium had not been refunded 
 to the applicant. Henry v. AgricuMural Ins. 
 Co., 11 Grant's Ch., 125. 
 
 60. " Received from J. G. & Co. $14 premi- 
 um for an insurance, $2,000 on properly de- 
 scribed, subject to the approval of the board 
 at K. The said party to be considered insured 
 for twenty-one days from date, within which 
 time the determination of the board will be 
 notified. If approved a policy will be deliv- 
 ered, otherwise the amount received will be 
 refunded, less the premium for the time so in- 
 sured." Held, not an agreement to insure for 
 twenty-one days. The company might within 
 that time reject the risk and give notice, and 
 their liability would cease from the time no- 
 tice given. OoodfdUm e. Times & Beacon Ins. 
 Co., 17 U. C. Q. B., 411. 
 
 Y. Modification oe substitution. 
 
 1. The plaintiff was permitted to prove that 
 at the time the policy was made, and at the 
 time a subsequent annual premium was paid, 
 
 177 
 
355 
 
 CONTRACT. 
 
 356 
 
 Modification or substitution. 
 
 it was understood and agreed by the com- 
 pany and the insured that if anything should 
 happen to prevent insured from paying the 
 premium at any time it should become due, 
 the policy should not thereby be forfeited ac- 
 cording to its terms, but that the insured 
 should have the right to pay the premium 
 •within a reasonable time, and that the policy 
 should continue in force notwithstanding the 
 nonpayment. It was also proved that it was 
 the custom or usage of the insurer in dealing 
 with persons whose lives it had insured, to 
 allow the insured some days of grace within 
 which to pay the annual premium. Held, the 
 agreement or understanding made at the time 
 the policy was delivered was inadmissible, be. 
 cause it was cotemporaneous with the writing 
 itself; that the custom or usage of the defend- 
 ant was also inadmissible, because a custom 
 or usage cannot be received to control a plain 
 and unambiguous contract; but the evidence 
 of the agreement, made subsequently to the de- 
 livery of the policy, was admissible and bind- 
 ing upon the parties, because they had a right 
 to modify the original writing by subsequent 
 parol agreement. Howell v. Knickerbocker Life 
 Ins. Co., 44 N. Y., 376; 6. c, 3 Rob., 233; 19 
 Abb. Prac, 317. 
 
 2. " On goods on the first floor of No. 39 
 Centre Street, New York." Before the policy 
 expired, insured removed them to the story 
 above in same building, and insurers, with 
 notice of that fact, renewed the policy and re- 
 ceived the consideration therefor. The re- 
 newal receipt recited : " On stock, premises 89 
 Centre Street, New York," referring to the 
 policy by number, and continued it in force 
 for one year. Held, the delivery of the re- 
 newal receipt and acceptance of the consider- 
 ation, with notice that the goods had been 
 removed, led the insured to understand that 
 the goods were insured at the place where 
 they were, and not at a place where they were 
 not; that to suppose otherwise, would be to 
 impute to the insurers a fraudulent intention, 
 not justified by the case; that the conduct of 
 insurers was equivalent to an indorsement on 
 the policy showing the location of the goods, 
 or a parol assent to the change of location, 
 which was a modification of tlie former con- 
 tract. Ludwig v. Jersey City Ins. Co., 48 N. 
 Y., 379. 
 
 3. Policy to the mortgagor; loss, if any, 
 payable to the mortgagee. Stipulated: "To 
 
 178 
 
 be void in case of any sale, transfer or change 
 of title in the property insured or any part of 
 it." The mortgage was foreclosed, and the 
 mortgagee became the purchaser. Heid, in- 
 sured had the right to prove that insurers 
 agreed, after the sale, to allow the policy to 
 stand as security for the interest of insured, 
 and that the proper entries should be made to 
 effect that purpose in the books of the com- 
 pany; and, that if such an agreement was 
 proven, then the company was estopped from 
 insisting upon a breach of the condition. 
 Pratt B. New York Central Ins. Co., 55 N. Y., 
 505; s. c, 64 Barb., 889. 
 
 4. Stipulated: "Any increase of risk shall 
 avoid the policy, unless consented to by the 
 company, and nothing but a specific agree- 
 ment indorsed on the policy shall be a waiver 
 of any of its conditions." Held, a party can- 
 not take away the right to make a new con- 
 tract, or modify the old. Hence it was com- 
 petent for the defendant to waive any of the 
 conditions mentioned in the policy. Parker t. 
 Arctic Fire Ins. Co., 1 N. Y. (8. C), 397. 
 
 5. At and from Philadelphia to Cork, and 
 back to Philadelphia. She was obliged to go 
 to Limerick. Insurers, for a consideration, 
 indorsed upon the policy, " Engaged to see the 
 said ship from Limerick instead of Cork, 
 back to Philadelphia." Held, the policy and 
 the indorsement must be read togetlier, and 
 Limerick must be substituted in the place of 
 Cork, and insurers were liable for a loss at 
 Limerick. BeO, v. Marine Ins. Co., 8 S. & R., 98. 
 
 6. Two policies ; one on merchandise in the 
 storehouse, and another on a factory and other 
 buildings, about 80 feet from the storehouse. 
 In the application and survey, insured stated 
 that the factory was worked usually from fi : 30 
 A. M. to 13: 80 P. M., and from 1 to 7 P. M., in 
 summer ; and from 6 : 45 A. M. to 12 : 15 P. M., 
 and 1 to 7 P. M., in winter. After August 1st 
 the mill was worked all night, and on October 
 19th application was made to defendant's 
 agent for permission to work all night, which 
 he gave November 1st, for a consideration of 
 114.38. They were burned on the following 
 day. Held, insurers were liable. Worth Ber- 
 wick Co. n. New England Fire arui Marina 
 Ins. Co., 53 Me., 336. 
 
 7. W. <fc J. insured their stock in their flrnv 
 name. After the death of J., the business was 
 continued by "W., who continued to pnrchasd 
 goods for the stock. The insured offered evi- 
 
S5T 
 
 CONTRACT. 
 
 358 
 
 Execation and delivery. 
 
 deuce to prove that D, was the general agent 
 of the insurers; that he was authorized to do 
 all acts, in the prosecutioa of their business, 
 which could legally be intrusted to an agent; 
 that D. delivered tlie policy and collected the 
 premium ; Uiat immediately after the death of 
 J., W. inquired of D. whether any change in 
 the form of the policy, or any new policy, or 
 any other step would be necessary to make the 
 policy available to W. during the remainder 
 of the term; that D. stated, no change nor 
 further action on the part of W. was necessary ; 
 4hat D. agreed the policy should cover the 
 interest of W.; that assessments were after- 
 wards regularly made upon the policy by the 
 company, which were paid; and tliat the 
 company, after the death of J., authorized W. 
 to make further insurance upon the stock. 
 Held, the evidence was admissible to prove a 
 substitution of W., upon sufficient considera- 
 tion, in place of W. & J.; that W. was there- 
 fore entitled to recover in his own name upon 
 the contract (citing Groodall v. New England 
 Marine and Fire Ins. Co., 35 N. H., 169; Peck 
 ». New Loudon County Mut Ins. Co., 23 Conn., 
 575; Benjamin «. Saratoga County Mutual 
 Eire Ins. Co., 17 N. Y., 415). Wood «. Mutland 
 MiUuai Fire Ins. Co., 31 Vt., 553. 
 
 8. The secretary indorsed: "Loss, if any, 
 payable to A.;" and the president indorsed: 
 "This policy is hereby changed to cover 
 chairs and benches, instead of the museum 
 collection, which is removed." Ileld, a valid 
 contract Northrup v. Mississippi Valley Ins. 
 Co., 47 Mo., 435. 
 
 9. " On such property, in such sums, to and 
 from such ports or places, and by such good 
 and seaworthy steamboats, or other river craft 
 as may be approved by this company, and 
 entered in the book attached to this policy." 
 No risk binding until sa entered and Ap- 
 proved. Pour days after the policy was made, 
 insured made an application, signed by in- 
 sured and the secretary of the company, to 
 cover goods " for whom it may concern," on 
 all shipments addressed to the insured on any 
 seaworthy vessel on the Mississippi and Ohio 
 rivers and their tributaries, provided the risk 
 by any one boat shall not exceed $5,000, in- 
 sured to give promi^t notice to insurer of every 
 shipment so soon as he receives notice by bill 
 of lading or otherwise." Held, the open policy 
 covered all shipments from the time they were 
 entered in the book attached to it; and the ' 
 
 application was an additional agreement by 
 which goods on certain rivers, not exceeding 
 a certain amount, were covered without in- 
 dorsement or entry in the book annexed to the 
 open policy. Mai-os v. National Marine and 
 Fire Ins. Go., 25 La. An., 39. 
 
 10. On the profits of goods valued at £500; 
 but it was altered and written in the margin : 
 " On his share of the goods, say one-fifth, 
 valued at £1,000." Eeld, it was not necessary 
 for the plaintiff to make any averment in the 
 declaration as to the original agreement, or to 
 state the marginal memorandum, for all was 
 in fieri, and the whole constituted but one 
 agreement Robinson v. Tohin, 1 Starkie, 386. 
 
 1 1, On ship from Liverpool to Quebec. 
 Being detained after the time intended for sail- 
 ing, it was indorsed : " The Hebe being un- 
 avoidably detained beyond the intended time 
 of sailing for Qjiebec, the voyage is changed, 
 and the vessel proceeds from London to St 
 Johns, New Brunswick, at and from thence 
 back to London; and in consideration of one 
 guinea per cent additional, the underwriters 
 agree to continue on the risk until the vessel 
 should be arrived back in London, or her port 
 of discharge in the United Kingdom." Held, 
 it did not require .a new stamp. Brockeliank 
 o. Sugrue, 1 B. & Ad., 81 ; 8 L. J. K. B., 371 ; 5 
 C. &P., 21; 1 Moo. & R., 102. 
 
 VI. Execution xsd delivery. 
 
 1. H. was the acknowledged agent of the 
 defendant. He employed another person to 
 deliver the policy and receive the premium, 
 which was done after the fire. Heid, the de- 
 livery was the defendant's; that receiving the 
 premium before or after the fire could not 
 affect the rights of the parties. Kelley e. CVwi- 
 monweaUh Ins. Go., 10 Bos., 83. 
 
 2. The insured may receive from insurer's 
 agent the policy, after the loss has occurred, 
 notwithstanding insured knows of the loss, 
 and of the insurer's intention to dispute the 
 claim, and to revoke the agent's authority; 
 nor IS the insured bound to inform the agent 
 of any of those facts before he takes the policy. 
 LigMbody c. North American Ins. Go., 23 
 Wend., 18. 
 
 3. There was a blank for the president's sig- 
 nature, and another for the signature of the sec- 
 retary ; immediately preceding these, the policy 
 provided, that it should not be valid till coun- 
 
 179 
 
369 
 
 CONTRACT. 
 
 360 
 
 New promise. 
 
 tersigned by A. Andrews, agent Neither the 
 president nor secretary affixed their signatures, 
 but Andrews countersigned it. HeM, it was 
 invalid because it lacked the signature of the 
 president and secretary, for it was like a case 
 of a promissory note, witnessed by the agent 
 but not signed by the principal. Peoria Ma- 
 rine and Fire Ins. Co. v. Walter, 22 Ind., 73. 
 
 4. There was evidence tending to show that 
 insured and insurer's agents agreed that the 
 latter should retain the policy until C, the 
 mortgagee, should call for it. The premium 
 was paid by a promissory note of insured to 
 insurer's agents. The premises were con- 
 sumed before C. called for the policy. Held, 
 an actual manual delivery was not necessary. 
 If the agents of insured agreed to retain it 
 for a third party, the delivery was complete, 
 though the third party had not called for it. 
 Home Ins. Co. v. Gurtes, S. C. Mich., 5 ; Ins. 
 L. J., 120. 
 
 5. The defendant constituted flfleen persons 
 named '* HU true and lawful attorneys, jointly 
 and severally for him, and in his name, to sign 
 and underwrite all such policies of insurance 
 as they, his said attorneys, should jointly and 
 severally think proper." This policy was 
 signed by only four of the persons named. 
 Seld, the power was given to any or all of 
 them, and the execution was therefore suffi- 
 cient. Outhrie v. Armstrong, 5 B. & A., 628 ; 
 1 D. & R , 248. 
 
 6. The policy was signed at the company's 
 office by fliree de facto directors, and sealed 
 with what purported to be the company's seal. 
 Beld, a binding policy upon the comjjany. 
 County Life A»t. Co., In re Briton Ass. 
 Soc's Case, 5 L. R. Ch., 288; s. c, 39 L. J. 
 Oh., 471 ; 22 L. T. (N. S.), 537 ; 18 W. R., 390. 
 
 7. The Hull and London Fire Ins. Co., reg- 
 istered under 7 and 8 Vict., ch. 110, had power 
 to transact all the brhnchcs of business apper- 
 taining to all marine insurance. The com- 
 pany had a seal with its name upon it The 
 directors appointed an agent to issue marine 
 policies, which were made in the name of the 
 Hull and London Marine Ins. Co. They were 
 signed by the agent and stamped, " Hull and 
 London Marine Ins. Co." Held, the defend- 
 ant was not liable under these policies even 
 for losses adjusted. HoTnbro v. HvU and Lon- 
 don Fire Ins. Co., 3 H. & N., 789 ; 28 L. J. 
 Ex., 62. 
 
 8. The policy was sent by insurer's agent, 
 180 
 
 to a broker for delivery. Held, it was deliv- 
 ered when it passed from the agent's custody. 
 MeLacMan n. .JEtna Ins. Co., 4 Allen, N. B., 
 178. 
 
 YII. New pbomise. 
 
 1. Two partners applied for insurance, and 
 stated, that they owned the land on which the 
 building stood. One of them held the title to 
 the land, but one-half its cost had been de- 
 bited to the other on the books of the con- 
 cern. The partnership was afterwards dis-- 
 solved and that owner's interest in the assets 
 transferred to his copartner, to whom, with 
 notice of all the facts, insurer agreed, that the 
 policy should "stand good." HM, insurer 
 was liable for the loss. Collins «. CJiarlestown 
 Mutual Fire Ins. Co., 10 Gray, 155. 
 
 2. Policy to A. The property was sold to 
 B., who carried the policy to the broker 
 through whom it was originally issued, told 
 him he had purchased, and requested him to 
 hare the policy so indorsed as to protect his 
 interest The broker indorsed, in pencil, 
 "Privilege to use kerosene oil for lights. 
 Loss, if any, payable to Chas. Batchelor. 
 Transfer." It was then forwarded to insurers 
 and the secretary repeated the same words in 
 the body of the policy and signed them, affix- 
 ing the stamp required for a new contract, but 
 he omitted the word, "Transfer." The prem- 
 ises were wholly consumed by fire, and' insur- 
 ers refused to pay anything. Hdd, insurers 
 must be considered as returning the policy 
 with an intention that it should be delivered 
 to the person who held the interest; they 
 must have anticipated he would hold it as an 
 indemnity to himself, otherwise their conduct 
 was a deception and a snare; hence, the 
 plaintiff was entitled to recover the sum in- 
 sured. Batchelor e. People's Fire Ins. Co., 40 
 Conn., 56. 
 
 3. The premises were insured to B., the 
 owner, who sold to S. The policy was asr 
 signed, and insurers consented and then re- 
 newed it from the date of its expiration for 
 one year, by a paper as follows : " By this certi 
 licate, the Peoria Marine and Fire Ins. Co., ia 
 consideration of $45 to them paid by the 
 holder of policy No. 723, the receipt whereof 
 is hereby acknowledged, do hereby consent to 
 the continuance of the risk originally insured 
 in policy No. 723, from Octibtr 23, 1859, to 
 
361 
 
 CONTRACT. 
 
 362 
 
 Continuing — Ratification smd adoption (pro and con.). 
 
 October 22, 18C0, the original application to 
 remain in full force and virtue." HeliL, this 
 paper was a contract with S. on the terms of 
 the original policy ; that it neither continued 
 the original policy nor revived it; tliat it was 
 a new agreement with 6., on which she could 
 maintain assumpsit in her own name (citing 
 Hodges c. Eastman, 12 Vermont, 358 ; Flana- 
 gan e. Camden Mut. Ins. Co., 25 N. J., 506). Peo- 
 ria Marins and Fire Ins. Go. e. Hervey, 34 
 111., 46. 
 
 4. PlaintiflF declared upon a policy to A., 
 assigned to plaintiff, with defendant's consent, 
 for the consideration that the defendant was 
 released from all liability to A., and that plaint- 
 iff had imdertal^en and promised defendant 
 to perform all the conditions in the policy 
 contained, and of the assignment of the prop- 
 erty insured from A. to plaintiff, lleld, not a 
 sufficient consideration to support a promise 
 from defendant to plaintiff; but the payment 
 of a renewal premium by plaintiff to the in- 
 surer would support a new promise to insure 
 the assignee. DemiU c. Hartford Fire Ins. 
 Co., 4 Allen (N. B.), 341. 
 
 VIII. CoumnirNG. 
 
 1. On freight, from January 24th to March 
 1, 1852. Stipulated, that the committee, unless 
 they receive ten days' notice to the contrary, 
 shall renew each policy on its expiration, ex- 
 cept in cases where it may be deemed expedi- 
 ent not to renew the same, when the committee 
 shall cause similar notice to be given to the 
 parties. Held, in the absence of notice by 
 eitlier party, the contract was a continuing 
 policy. Michael c. OiUespy, 2 C. B. (N. S.), 
 627; 8. C. 3 Jur. (N. S.), 1219; 26 L. J. O. P., 
 306. 
 
 2. Defendant, a mutual company, insured 
 A., his heirs, administrators, executors and 
 assigns on certain property, real and personal, 
 separate sums on each. A. sold the realty to 
 B., and assigned the policy to him, to which 
 insurers assented. A. removed the personal 
 property from the premises, and B. placed 
 similar personal properly in the premises, of 
 equal value and character. Held, insurers 
 were liable to B. for all property within the 
 description mentioned in the policy, not ex- 
 ceeding the sum insured, for the sale and as- 
 signment of the policy, consented to by in- 
 surers, constituted a new conti-act to insure B. 
 
 on his furniture. Cummings «. Cheshire County 
 Mut. Ins. Co., 55 N. H., 457. 
 
 IX. Ratification and adoption {pro 
 and con.). 
 
 1. To constitute a confirmation, the party 
 confirming must be fully apprised of his 
 rights (citing Cann v. Cann, 1 P. Wms., 723; 
 Roche o. O'Brien, 1 Ball & B., 330). Cray v. 
 Murray, 3 Johns. Ch., 167. 
 
 2. The owner of property insured without 
 his authority, may adopt the act of the person 
 procuring the insurance after the loss occurs, 
 and he who effects the insurance and receives 
 the money holds it for the benefit of the 
 owner. MiUeriberger s. Beacom, 9 Penn. St, 
 198. 
 
 3. Bond by an insurance agent, for the faith- 
 ful performance of his duties "to the said 
 directors, their successors or assigns." Seld, 
 it was a bond to the company, who could sue 
 upon it in their corporate name, nor was it 
 necessary to aver that it was made by the 
 name and description of the directors, etc. 
 Bayley v. Onondaga County Mut. Ins. Co., 6 
 Hill, 476. 
 
 4. She arrived at a port of disti-ess, with 
 her cargo in a damaged condition, which was 
 sold and an abandonment made. Insurers 
 paid a total loss. The master transmitted the 
 proceeds to a creditor of the ship owners, who 
 received them with notice that they were the 
 property of insurers. Insurers first brought suit 
 against tlie ship owners, summoning the cred- 
 itor as trustee, and afterwards, but before 
 judgment in the trustee process, commenced 
 this action against the creditor directly. Seld, 
 the bringing of the action against the ship 
 owner did not confirm the appropriation of 
 the funds; hence plaintiffs were entitled to re- 
 cover. Sun Mut. Ins. Co. v. Hall, 104 Mass., 507. 
 
 5. B. accepted a policy which recited that 
 he had paid a cash premium and delivered his 
 deposit note for a like amount; but he did 
 not read the policy, and the person who pro- 
 cured it signed the name of B. to the note. 
 Held, accepting the policy ratified the making 
 of the note. Monitor Ins. Go. o. Buffwm, 115 
 Mass., 343. 
 
 6. Insured assigned the policy and sold the 
 property insured to the assignee, to all of 
 which insurers assented, and the assignee 
 then gave a new note for the premium. All 
 
 181 
 
363 
 
 CONTRACT. 
 
 364 
 
 Lawful — Unlawful. 
 
 the assessments made from that time were reg- 
 nlarly made against and paid by the assignee. 
 The assignor had stated in the application 
 that there were no incumbrances on the prop- 
 erty insared. The property was incumbered. 
 Held, if the company ratified the policy to the 
 asiiignee with knowledge of the incumbrances, 
 they were bound by tlie ratification, and the 
 knowledge of the agent was the knowledge of 
 the principal. Receiving payment of assess- 
 ments was evidence of ratification. Cumber- 
 land Valley Mutual Protection Go. v. Mitchell, 
 48 Penn. St., 374. 
 
 7. The defendant denied the agent's author- 
 ity to make the contract. Seld, insured had 
 the right to prove tliat insurer retained the 
 premium, and if that was the fact it amounted 
 to a ratification of the agent's ' agreement. 
 Northuiestern Iron Co. v. .Mtna Ins. Go., 26 
 Wis., 78. 
 
 8. October 8, 1870, plaintiff instructed his 
 brokers to insure £5,000 on ship, and £5,000 on 
 freight. October lOlh he telegraphed, "There 
 is a paragraph in the Mercury stating, ' a ves- 
 sel is ashore on the North Breaker, but whether 
 it is the Cambria or the Cameo is uncertain.' 
 Can you find out at Lloyd's ? Let me know 
 by wire before acting." The broker tried to 
 ascertain but failed. He accordingly proceed- 
 ed to have the risk covered on the 12th, but 
 did not convey to the insurers the information 
 he had received. On the same day of the 
 grounding of the Cambria, the vessel insured, 
 appeared in Lloyd's list of losses, of which the 
 defendants had notice. Subsequently, on the 
 14th or 15th, the policy was delivered. Held, 
 the insurers were bound to elect within a rea^ 
 sonable time after they became aware of the 
 concealment, whether they would afiirm the 
 contract, but the election must be made by ex- 
 press words or acts ; that the party defrauded 
 may keep the question open so long as he does 
 nothing to affirm the contract; that lapse of 
 time, without rescinding, is evidence of deter- 
 mination to affirm, and when the lapse of time 
 is great, it is conclusive evidence of that fact. 
 But delivering the policy, after insurers re- 
 ceived information of the loss, was not evi- 
 dence tliat they affirmed the contract ; hence, 
 insurers were entitled to judgment. Morrison 
 ». Universal Marine Ins. Co., 8 L. R. Ex., 197 ; 
 43 L. J. Ex., 115; 21 W. R., 774; reversing 8 
 L. R. Ex., 40; 43 L. J. Ex., 17; 21 W. R., 196; 
 27 L. T. (N. S.), 791. 
 
 182 
 
 X. Lawful. 
 
 1. She was an alien ship, and could not 
 trade with England except by license; was 
 chartered to bring a cargo from Archangel to 
 London, and captured in the port of Arch- 
 angel. Held, the policy was valid because it 
 did not follow that the master would have per- 
 formed the voyage without obtaining license. 
 Seitdl B. Royal Exchange Ass. Go., 4 Taunt, 
 856. 
 
 2. " To any port or ports in the Baltic," 
 some of which were hostile and at war with 
 Great Britain. Held, the law would imply an 
 exception in favor of those ports that were not 
 hostile, and the policy was therefore upon its 
 face lawful. Wright v. Welbie, 1 Chitty, 49. 
 
 XI. TJlTLA-vrFTrL. 
 
 1. On ship from Boston to port of discharge 
 in Europe, stipulated: " No exceptions are to 
 be taken on account of ports interdicted by the 
 laws of the United States." In an action to 
 recover the premium on a promissory note : 
 Held, the defendant could prove that the voy- 
 age was intended and made to a port so inter- 
 dicted, and that this was an unlawful contract 
 and sufficient to avoid the note. Russd v. De 
 Orand, 15 Mass., 35. 
 
 2. The defendant made a premium note 
 payable to the order of the company, who in- 
 dorsed it to the plaintiff, a director of the com- 
 pany. The note and assignment was made 
 and delivered in New York. Held, by the 
 laws of the state of New York the transfer was 
 not legal, and as the plaintiff' was a director of 
 the company, he was bound to know that the 
 transfer was in violation of law ; and the de- 
 fendant, being a creditor of the company, had 
 a right to contest the transfer. Litchfield v. 
 Dyer, 46 Me., 81. 
 
 3. The insured signed the application and 
 executed the note on Sunday; the papers were 
 post dated, but there was no evidence to show 
 that they subsequently ratified the contract. 
 Held, the contract was void, and no recovery 
 could be had upon the premium notes. Hd- 
 ler V. Crawford, 37 Ind., 279. 
 
 4. T. and others procured a policy on the 
 life of H. for one year; but they had no inter- 
 est in his life. The insured agreed with M. 
 to subscribe first, and in case H. died within 
 the year, he was to lose nothing, but was to 
 
865 
 
 CONTRACT. 
 
 366 
 
 Effect of war. 
 
 sliare whatever should be gained from the 
 other subscribers. Upon the credit of M.'s 
 subscription, several others subscribed. H. 
 died four months after. Held, the policy must 
 be delivered up and the premium repaid. A. 
 D. 1690. Witiingham o. Thombormghy Fin., 20 ; 
 6. c, 3 Vera., 306; affirmed, H. L. C. 
 
 5. 19th Q«J. II, ch. 37, sec. 1, provided no 
 assurance shall be made on any goods to be 
 
 .taken on board of any ship, "interest or no 
 interest, or without further proof of interest 
 than the policy, or by way of gaining or wa- 
 gering or without benefit of salvage to the as- 
 surer." This policy stipulated : " The goods 
 insured were and should be valued at five 
 tierces of coffee valued at £27 per tierce, say 
 £135, and the policy to be deemed sufficient 
 proof of interest" MM, a void policy. 
 Murphy v. BeU, 4 Bing., 567 ; 6 L. J. C. P., 118 ; 
 1 M. & P., 493. 
 
 6. Claim under a policy of insurance on be- 
 half of French subjects. She was captured 
 by a British ship after hostilities had com- 
 menced. The policy was made by a subject 
 of Great Britain. Held, a subject of Great 
 Britain shall not enter into an insurance that 
 will have the effect of protecting the property 
 of the subjects of a country in hostility with 
 Great Britain. Ex parte Lee, 13 Ves. Jr., 64. 
 
 7. Reinsurances illegal by the statute, 19 
 Geo. II, ch. 37, for which no premium had 
 been paid by the broker; but he had credited 
 insurers with it in account Held, the insurer 
 could not recover against the broker. Edgar 
 e. Fowler, 3 East, 333. 
 
 8. Against capture from San Domingo to 
 Dunkirk. The policy was made September 
 18th, and she commenced to take her cargo 
 October 18th. The insured were French sub- 
 jects. France and England remained at 
 peace till the February following. She re- 
 mained with her cargo at San Domingo till 
 September following, when she was captured 
 by British frigates and condemned as prize to 
 tlie British force. Held, a contract to indem- 
 nify the enemy against the reprisals of a bel- 
 ligerent is invalid. Oamba e. Le Mesurier, 4 
 East, 407. 
 
 9. On cargo purchased on account of cer- 
 tain Frenchmen ; shipped for their benefit on 
 an American ship, before and actually ex- 
 ported after the declaration of hostilities be- 
 tween Great Britain and France, effected by a 
 British subject under orders from the French 
 
 subject. Tlie insurer was a British subject. 
 She was captured. Held, the insurance could 
 not extend to cover any loss by capture made 
 by his majesty and his subjects during the ex- 
 istence of hostilities between the respective 
 countries of the insured and the insurer. 
 Brandon, v. Curling, 4 East, 410 ; 1 Smith, 85. 
 
 10. A., B. and C. were partners in making 
 insurance upon ships — contrary to 6 Geo. I, 
 ch. 18, sec. 12, but they agreed that the poli- 
 cies should be underwritten in the name of A. 
 only, several of which were made and the pre- 
 miums paid to certain insurance brokers. 
 Held, an action against the brokers for the 
 premiums could not be maintained. Booth v. 
 Hodgion, 6 Term, 405. 
 
 11. A Company of ship owners agreed to 
 insure each others' ships and q^enanted sev- 
 erally to pay a certain sum inMse of loss, in 
 proportion to their respective shares; but in 
 case any should be insolvent, all the others 
 were to be responsible. Held, void under 6 
 Geo. I, ch. 18, sec. 13. Lees v. Smith, 7 T«rm, 
 338. 
 
 XII. Effect of wae. 
 
 1. The breaking out of war does not dis- 
 solve the contract of insurance. Saltus o. 
 United Ins. Go., 15 Johns., 523. 
 
 2. If an ante bellum contract is dissolved at 
 all, it is because its performance is inconsist- 
 ent with the duties and allegiance the parties 
 owe their respective countries, and involves 
 some violation or infringement of these ; but 
 if the contract has been partly executed by 
 one party, by parting with money or other 
 valuable things for the promise that the other 
 will perform his part of the engagement, in- 
 tervening war does not destroy the contract. 
 Statham v! New York Life Int. Co., 45 Miss., 
 581. 
 
 3. Ship insured from Bayonne to Mart- 
 inique, thence to Bayonne. She was at Mart- 
 inique when that place was captured by the 
 British ; was seized and taken as a prize. The 
 insured was a French subject, resident in 
 France, but there was peace between that na- 
 tion and Great Britain when the policy was 
 effected. His Mjyesty granted a license to 
 Alves, Rebello & Co., authorizing them to re- 
 ceive the money insured. Held, it wa,i not 
 lawful for a British subject to insure an enemy 
 from capture made by his own government, 
 
 183 
 
367 
 
 CONTRIBUTION — CONVOY. 
 
 368 
 
 MieceUaneous. 
 
 for the law infers that the contract cohtainsan 
 exception as to captures made by the govern- 
 ment of his country, and an express insurance 
 against such capture would be abrogated by 
 the law of England. Hdd, also, that during 
 war, all commercial intercourse with the 
 enemy is illegal at common law. It follows 
 that whatever contract tends to protect ene- 
 mies' property from the calamities of war, 
 though effected antecedent to the war, is never- 
 theless illegal. Purtado v. Bodgert, 3 B. & P., 
 191. 
 
 XIII. "Whek severai,. 
 
 1. Stipulated: " The insurers will contrib- 
 ute each one according to the rate and quan- 
 tity of the ^n therein assured. Yalued at 
 £3,300, iusurBg £3,000." There were seventy- 
 two subscribers, but no sums were written op- 
 posite to any of their names. The articles 
 of association stipulated, " When a loss hap- 
 pens and any of the members are insolvent, 
 the insured shall have no claim for their share 
 of the contribution upon the other parties to 
 the policy." Held, a valid contract in the 
 same manner as if the policy were subscribed 
 ]>y a number of individuals. DoueU v. Moon, 
 4 Camp., 166. 
 
 XIV. "When johtt. 
 
 1. The defendants were shareholders, one 
 of them a director in the company, which 
 issued a policy, signed by the directors and 
 purported on its face to have been made be- 
 tween the company and the insured. It stip- 
 ulated that the capital stock and funds of the 
 company should alone be liable to make good 
 all demands that might accrue to the insured ; 
 that no proprietor of the company should be 
 subject or liable or in anywise charged by 
 reason of the policy, beyond the amount of 
 his or her shares in the capital stock. It was 
 then averred that " the defendants promised 
 to perform and fulfill all things in the policy 
 mentioned on their part as such insurers, and 
 that the defendants then and there became and 
 were insurers to the plaintiff and duly sub- 
 scribed the policy; that although the capital 
 stock and funds of the company were and are 
 sufficient to pay the loss, payment had not 
 been made." The action was against the 
 184 
 
 subscribers of the pi>licy. The defendants 
 separated; one pleaded nonaasumpsit and 
 others demurred generally. Held, the decla- 
 ration disclosed a joint contract by all the de- 
 fendants, and the demurrer admitted the 
 promise aveiTed, namely, that the capital 
 stock should be applied to payment of the 
 loss. JIaUett v. Dmadall, 21 L. J. Q. B., 98; 18 
 Q. B., 2; 16 Jur., 462; affirming Drnxdall v. 
 Hallat, 19 li. J. Q. B., 37; 14 Jur., 309.) 
 
 2. Fonr companies tranj^acting business by 
 the name of the Undei-writers Agency, con- 
 tracted under one policy with plaintiff to in- 
 sure certain property, stipulating: "That 
 nothing herein shall be construed as creating 
 any joint liability on the part of the above 
 named companies or either of them, but that 
 such companies shall only be regarded as 
 severally liable for the amount insured by 
 each" (one-fourth). Held, the contract was 
 Joint, with a stipulation, in terms, for the lia- 
 bility of each couyjany, and it was within the 
 power of the jury to so mould their verdict, 
 under the provisions of the code, as to conform 
 to the express stipulation of the contract. 
 Sutherlin v. Underwriters Ageney, 53 Ga., 442. 
 
 CONTRIBUTION. 
 
 (See Gkherai, Ateiusb.) 
 
 Among co-insueebs. 
 
 Several underwriters made insurance upon 
 cai'go, two of whom paid judgments rendered 
 against them for the whole loss. Held, they 
 could maintain actions against their co- 
 insurers for contribution. Thurston, v. Koch, 
 4 Ball., 348. 
 
 CONVOY. 
 
 I. What satisfies the wakbantt. 
 
 II. DOES HOT SATISFT THE WABBANTT. 
 
 I. What satisfies the "waeeautt. 
 
 1. "On ship from London to Naples, war- 
 ranted to depart with convoy." She departed 
 
369 
 
 CONVOY. 
 
 370 
 
 What does not satisfy the ■warranty. 
 
 •with convoy, but was separated from it by 
 stress of weather in the Downs, driven into 
 Foy, waited there for convoy, sailed expecting 
 to meet it, she went on, did not meet convoy, 
 and was captured by a French man.of-war. 
 Seld, the warranty was satisfied. Jefferies «. 
 Ltgendra, 1 Holt K. B., 465; Show., 330; 
 Garth., 216. 
 
 2. She sailed with convoy, but was driven 
 back to port by heavy weather. She sailed again 
 without waiting for next convoy and without 
 joining convoy from any other port. Held, the 
 requirements of the statute were like the com- 
 mon case of warranty, to sail with convoy; 
 that if she sailed with convoy on the voyage, 
 she complied with the requisitions of the 
 statute, and if for some necessary cause she 
 was honestly obliged to leave her convoy, the 
 insurer could not complain. Laing o. fftooer, 
 5 Taunt, 49. 
 
 3. On a voyage from A. to C, warranted to 
 depart with convoy for the voyage. Convoy 
 was appointed to B., a port in the course to 
 and near C. She was captured between B. 
 and C. Eddi it was proper to leave to the 
 jury the question whether there was not a 
 sufficient convoy, within the meaning of the 
 policy. D'Eguino v. Banidce, 2 H. Black., 551. 
 
 4. " Warranted to sail with convoy," to be 
 allowed to sail from loading port direct to a 
 rendezvous to join convoy, on condition that 
 in case of capture while so sailing, a deduc- 
 tion should be made of £15 per cent, from the 
 sum insured or the loss sustained. Held, she 
 might sail without convoy for the rendezvous, 
 although there were convoy between the load- 
 ing port and the rendezvous. Warwiek «. 
 8eott, 4 Camp., 63. 
 
 5. The defense was that she had been guilty 
 of a breach of the convoy act. She sailed 
 without convoy and was capttired. The own- 
 er's son was on board. Held, to vitiate the 
 policy, it must be shown that the insured was 
 privy to or instrumental in causing her to sail 
 without convoy, and where the conduct of the 
 agent is set up as a defense, it must be shown 
 he had authority for that purpose ; and this 
 must be proven, notwithstanding the sailing 
 without convoy was directed by the master or 
 supercargo. Carstairs v. AUnutt, 3 Camp., 
 497; Metcalfv. Parry, 4 id., 123. 
 
 6. The court will presume the ship com- 
 plied with the provisions of the convoy act. 
 Thornton v. Lance, 4 Camp., 231. 
 
 7. She was Spanish built, purchased at 
 Hamburg by a British subject, the plaintiff. 
 She was not registered. Her master applied 
 to the admiralty for a license to go to Leg- 
 horn and Naples without convoy, which was 
 granted, to Naples only. He sailed for Leg- 
 horn, and was captured off that place by a 
 French privateer. HtUd, a register was not 
 necessary; that she might therefore proceed 
 without convoy. Long v. /Hgf, 2 B. & P., 
 209. 
 
 8. "Warranted to sail with convoy for the 
 voyage." The commander sent a ship to 
 bring up the merchantmen for Tortola, but 
 the ship sent did not form a part of the con- 
 voy for the remainder of the voyage, and the 
 ship insured was lost before she joined the 
 commander of the convoy. HM, warranty 
 was satisfied. Manning v. Oist, 8 Doug., 74. 
 
 9. Warranted to depart with convoy from 
 Fleckery. She sailed for Fleckery, arrived, 
 and waited two months for convoy. In tlie 
 morning at nine, three men of war with a 
 merchant fleet in convoy stood off Fleckery, 
 and signaled ships to come out The convoy 
 sailed gently on, and the ship insured with 
 others got out about twelve o'clock. The con- 
 voy was then about two leagues ahead. It 
 was blowing a gale, and by six in the after- 
 noon she came up to the fleet, but could not 
 get sailing orders. She was taken by a French 
 privateer. Held, the warranty was observed. 
 Yietorin v. Cleeve, 2 Strange, 1250. 
 
 10. Wai-ranted to depart with convoy. One 
 was appointed for that trade at Spithead. She 
 tried to take one on the Downs, but failing, 
 she sailed for Spithead, and was taken on her 
 way. SeW, the warranty was observed. Gfor- 
 don V. Morley, 2 Strange, 1265. 
 
 II. What does not satisfy the wae- 
 EAimr. 
 
 1. "Warranted to depart with convoy." 
 She sailed from Spithead, the rendezvous, in 
 company with convoy. The master left tlie 
 ship for the purpose of getting sailing instruc 
 tions from the admiral ; but he was drowned, 
 and never was seen again. Hdd, the warranty 
 to depart with convoy required proof of sail- 
 ing orders; that without them the master 
 could not answer signals, nor know where to 
 rendezvous in case of storm. WOib e. Tlump- 
 
 «on,lB. &P.,5. 
 
 185 
 
371 
 
 COUNTERSIGNING POLICY. 
 
 372 
 
 Miscellaneous. 
 
 2. Warranted to sail with convoy, means 
 sailing with convoy for the voyage. Lilly v. 
 Ewer, 1 Doug., 73. 
 
 3. " Warranted to depart with convoy." 
 The convoy left before she reached the rendez- 
 vous, and she put herself under the admiral's 
 command, as he was going to England. The 
 captain of the " Glorieaux " took her under 
 his protection, but he had no orders from the 
 admiral, and she was captured. Held, the 
 warranty was not satisfied. Hiblert v. Pigou, 
 3 Doug., 224. 
 
 4. Ships sailing from foreign ports are not 
 within tlie convoy act, unless there were per- 
 sons at those ports authorized to grant con- 
 voys or licenses; and proof that convoys were 
 appointed from those ports is not sufficient. 
 It must be shown that persons were there 
 legally authorized by the admiralty to ap- 
 point convoys. jyAu-gilar v. Tobin, Holt N. 
 P., 185. 
 
 5. Warranted to depart with convoy. She 
 did not obtain sailing instructions before leav- 
 ing the rendezvous; they might have been 
 obtained by proper endeavor. Held, the war- 
 ranty was broken. Andei-son v. Pitcher, 2 B. 
 & P., 164; 3 Esp., 124. 
 
 6. " Warranted to sail with convoy." The 
 convoy sailed July 25th, but the ship insured 
 did not sail till the 27th, nor did she reach the 
 rendezvous, Bluefields, till tlie 29th ; but she 
 
 , came up with the convoy, August 20th, re- 
 ceived sailing orders and continued with tlie 
 fleet till September 17th, when a gale separated 
 them, and she was captured by the enemy. 
 Held, the warranty was not observed, hence 
 Insurers were released. Bmumore o. Allan, 
 Faculty Dec, 1781 to 1787, p. 432. 
 
 7. Warranted to sail with convoy on or 
 before the 1st of August, 1782. Bluefields 
 was the appointed place of rendezvous; but 
 she remained at Savannah-La-Mar, a distance 
 of several miles from Bluefields, but within 
 call by signal. While there the master re- 
 ceived orders by signal to sail, to which he 
 gave obedience, but she was prevented by a sud- 
 den calm from joining convoy till August 29th. 
 She remained in company with it till Septem- 
 ber 16th, when the fleet was dispersed by a 
 severe storm, and she was afterwards captured. 
 Held, she did not sail with convoy, hence the 
 insurers were released. MonUath %. Orosse, 
 Faculty Dec, 1787 to 1792, p. 87. 
 
 1S6 
 
 COUNTERSIGNING POLICY. 
 
 (See Contract, VI.) 
 
 1. Stipulated : " Not to be in force till coun 
 tersigned by B. at Boston." B. was the per- 
 son insured, and insurers' agent. After his 
 death, the policy was found among his papers, 
 but it had never been countersigned. Held, in 
 the absence of proof to show that the condi- 
 tion was waived, no recovery could be had 
 upon it. Badger v. American Popular Life 
 Ins. Co., 103 Mass., 244; Prall n. Mutual Pro- 
 tection Life Ins. Co., 5 Daly, 298. 
 
 2. Not valid until countersigned by an agent 
 named. Held, the policy might become efiect- 
 ual without countersigning, provided it was 
 the intention of the parties to treat it as exe- 
 cuted, and to dispense with Uiat condition. 
 Myers v. Keystone Mutual Life Ins. Co., 27 
 Penn. St., 268. ' 
 
 3. N. was for many years local agent of 
 insurer, and his wife held a policy upon his 
 life. Renewal certificates for premiums fall- 
 ing due upon policies issued in his district 
 were sent to him for him to receive the money 
 and remit to the company; all of them con- 
 tained a printed notice that they were not 
 valid until payment of the premium and coun- 
 tersigned by N. as agent The premium was 
 paid in 1866, but the renewal receipt was not 
 countersigned by N. as agent. He died in 
 1867, and after his death the renewal receipt 
 for the premium due for 1867 was found 
 among his papers, but it was not counter- 
 signed. Held, the fact that the certificate was 
 not countersigned did not rebut the presump- 
 tion that the premium was paid. Norton s. 
 PTusnix Mutual Life Ins. Co.. 36 Conn., 503. 
 
 4. If the policy or renewal receipt with the 
 agent's name written upon them were deliv- 
 ered as completed instruments, neither the 
 agent nor his principal can afterwards object 
 that they were not countersigned. Hibemia 
 Ins. Co. V. O'Connor, 29 Mich., 241. 
 
 5. Action on a promissory note, executed 
 in consideration of a policy for $6,000 on the 
 steamer John Drennon, for one year. The 
 instrument delivered was signed by the presi- 
 dent of the company, but stipulated not to be 
 valid till countersigned by John Burgoyne, at 
 Cincinnati. It never was countersigned by 
 him. Held, it was not a valid policy, and was 
 
373 
 
 COURT AND JURY. 
 
 3T4 
 
 Questions for the court. 
 
 no consideriktion for the note. Lj/nn v. Bur- 
 goyne, 13 R Mon., 399. 
 
 6. The act of incorporation provided: 
 " Policies signed by the president and coun- 
 tersigned by the secretary, but not otherwise, 
 shall be valid and binding on the company." 
 This policy was not signed by the president, 
 but it was countersigned by the secretary. 
 Edd, it was not valid, but tlie company could 
 be compelled to execute a valid policy. Perry 
 e. New Castle Fire Ins. Co., 8 U. C. Q. B., 363. 
 
 COURT AND JURY. 
 
 I. Questions for the coitrt. 
 
 II. JUKT. 
 
 I. Questions fob the couet. 
 
 1. The circuit court has no right to order a 
 peremptory nonsuit, against the will of the 
 plaintiff; but the defendant may move the 
 court to instruct the jury that the evidence 
 given for the plaintiff is not sn£Bcient to war- 
 rant a verdict in his favor. Such a motion is 
 not addressed to the discretion of the court, 
 and presents a question of law for the consid- 
 eration of the supreme court (affirming s. c, 
 8 Blatch., 170; 9 id., 201). Inmranee Co. v. 
 Folsom, 18 Wall., 237. 
 
 2. "Free firom average unless general." 
 ffeld, if these words had, by a long course of 
 commercial usage, acquired a precise and 
 definite meaning among commercial men, it 
 would be the duty of the court to give them 
 that meaning. Wadsworth v. Pacific Ins. Co., 
 4 Wend., 84. 
 
 3. The court is bound to take judicial no- 
 tice of things which are public history, and 
 affect the people generally. Swinnerton o. 
 Columbian Ins. Co., 37 N. Y., 174; s. c, 9 Bos., 
 361. 
 
 4. When the facts are agreed by the parties, 
 or found by the jury, the question is then one 
 of law for the court to decide. Smith v. 2feu>- 
 buryport Marine Ins. Co., i Mass., 668. 
 
 5. Whether a fact concealed is material is 
 a question for the jurj'; but if the evidence of 
 it is agreed upon by the parties, it is then a 
 question for the court. Fletcher b. Common- 
 xceaUh Ins. Co., 18 Pick., 419. 
 
 6. If all the evidence offered for the purpose 
 of establishing any given fact, with all the in- 
 ferences which can be drawn from it, is not 
 sufficient in law to establish the fact, it is the 
 duty of the court to refuse to submit the ques- 
 tion to the jury fciting Parks «. Ross, 11 How., 
 363). Fay «. Alliance Ins. Co., 16 Gray, 455. 
 
 7. State laws and regulations, incorporated 
 by implication into a public act of congress, 
 need not be pleaded, and therefore need no 
 proof, because the court will take judicial 
 notice of them. Flanigen v. Washington Ins. 
 Co., 7 Penn. St, 306. 
 
 8. Whether the preliminary proof is admis- 
 sible is for the court. The jury are to deter- 
 mine the authenticity of the papers. Klein v. 
 Franklin Ins. Co., 13 Penn. St., 347. 
 
 9. There were two barrels of whisky near 
 the still, and thirty barrels stored in the cellar. 
 JIdd, it was proper for the court to tell the 
 jury that this was an incident of the business 
 of distilling. PeopWs Ins. Co. v. Spencer, 53 
 Penn. St., 353. 
 
 10. Where no testimony is offered of a fact, 
 or the evidence is so vague and indefinite that 
 by no rational inference can the fact, attempt- 
 ed to be proved, be adduced, it is the duty of 
 tlie court to instruct the jury that the infer- 
 ence of fact cannot be drawn from the evidence 
 given. Riggin v. Patapsco Ins. Co., 7 H. & J., 
 279. 
 
 11. The force of the testimony given is for 
 the jury, and the court below ought to grant 
 a new trial if the evidence given calls for a 
 finding different from that made by the jury; 
 but it is not for the appellate court to correct 
 the verdict 2few York Life Ins. Co. v. Flacky 
 3 Md., 341. 
 
 12. If certain facts are found, then the ques- 
 tion upon them is a matter of law for the 
 court, and it is not error for the court to in- 
 struct the jury that certain facts establish a 
 certain proposition of law. Winneshiek Ins. 
 Co. V. SehueUer, 60 111., 465. 
 
 1 3. The word " six " was illegibly written, 
 the s having the appearance of an o. The 
 court left it to the jury for them to find whether 
 the word was six or oix. Held, error. It was 
 the duty of the court to determine the matter 
 from the context and inspection. Lapeer 
 County Ins. Co. «. Doyle, 30 Mich., 159. 
 
 14. If the facts are admitted, the supreme 
 court must pass on their legal effect It ia 
 only when they are disputed or there is evi 
 
 187 
 
375 
 
 COURT Am) JURY. 
 
 376 
 
 Questions for the jury. 
 
 deuce tending to sustain tlie claim of each 
 party that the finding of the trial court is con- 
 clusive against the loser. Woods v. Atlantic 
 Mutual Ins. Co., 50 Mo., 112. 
 
 II. Questions foe the juet. 
 
 1 . Whether there ■was a competent crew for 
 the voyage, at what time such crew should be 
 on board, the proper pilot ground, the course, 
 the usage of trade in relation to the master 
 and crew being on board when she breaks 
 ground for the voyage, are questions of fact 
 for the consideration of the jury exclusively ; 
 and the court cannot solve them without arro- 
 gating the rights and privileges of a jury. 
 Whether the ship was seaworthy when she 
 broke ground, or her laying oflf and on after 
 her departure, waiting for the master to come 
 on board, or the insured omitted to communi- 
 cate to his agent, with due and reasonable dil- 
 igence, his knowledge of the loss of the ship, 
 and whether a failure to mention the time of 
 the vessel's sailing was a fact material to be 
 made known to the insurer, were questions in 
 the cause ; but the court instructed the jury, 
 " That upon the whole evidence in the case the 
 plaintiffs are not entitled to recover, and the 
 verdict of the jury ought to be for the defend- 
 ants." Keld, this was withdrawing from the 
 proper consideration of the jury matters of 
 fact in controversy between the parties, and 
 therefore the judgment should be reversed. 
 M'lxmdhan, v. Universal Ins. Co., 1 Pet., 170. 
 
 2. Whether the premium would have been 
 higher had the property been differently de- 
 scribed, or whether a representation was ma- 
 terial, are questions for the jury. Columbian 
 Ins. Co. V. Lawrence, 2 Pet., 25. 
 
 3. Whether a misdescription had any effect 
 upon the premium is a question of fact for the 
 jury, Columbian Ins. Co. v. Lawrence, 10 Pet., 
 507. 
 
 4. It is a question of fact for the jury to de- 
 termine whether tlie vessel was seaworthy at 
 the commencement of the voyage. Popleston 
 «. Kitchen, 3 Wash. C. C, 138. 
 
 5. Warranty depending on matter of fact is 
 a question for the jury. Denis v. Ludlow, 2 
 Caines, 111 ; Oim^ v. Commonwealth Ins. Co., 
 10 Pick., 535. 
 
 6. On the day the policy was made, a vessel 
 arrived with inforiration that the ship insured 
 sailed about October 3d. The broker who 
 
 188 
 
 made the insurance stated that she was ex. 
 pected to sail about the 1st. Held, it was a 
 question for the jury to determine whether 
 the concealment was material. Livingston v. 
 Delajidd, 1 Johns., 522. 
 
 7. The jury are to determine whether the 
 insurer accepted or refused the abandonment. 
 Bell V. Columbian Ins. Co., 2 Johns., 98. 
 
 8. What facts are material and necessary to 
 be communicated to the insurer is not a ques- 
 tion for the court, but for the jury. Wew York 
 Fireman's Ins. Co. v. Walden, 12 Johns., 513. 
 
 9. Insured offered his books of accounts. 
 They were admitted without objection, and 
 the only question was whether they had been 
 fraudulently altered. Seld, it was a question 
 for the jury. Kelly v. Indemnity Ins. Co., 38 
 N. Y., 322. 
 
 10. A question of concealment must be sub- 
 mitted to the jury. Sexton v Montgomery Mut. 
 Ins. Co., 9 Barb., 191. 
 
 11. The defendant interposed an equitable 
 defense. Held, it was nevertheless a case tri- 
 able by jury. Sturm v. Atlantic Mut. Ins. Co., 
 6 J. & Sp. (N. Y.), 281. 
 
 1 2. The defendants defended on the ground 
 that certain questions propounded in the ap- 
 plication had been falsely answered. Heid, a 
 question for the jury. Boos v. World Mutual 
 Life Ins. Co., 4 Hun. (N. Y.) 133; a. c, 6 N. 
 Y. S. C, 364. 
 
 13. Whether a vessel is so much out of 
 trim as to be unseaworthy at the commence- 
 ment of the voyage is a question for the jury. 
 Chase v. Eagle Ins. Co., 5 Pick., 51. 
 
 14. Whether an abandonment is timely is a 
 mixed question of law and fact for the jury. 
 Reynolds v. Ocean Itis. Co., 22 Pick., 191. 
 
 1 5. Whether alterations or additions to a 
 a building insured increased the risk, is a 
 question of fact for the jury. Curry v. Com. 
 monwealth Ins. Co., 10 Pick., 535. 
 
 1 6. Where the whole cargo in a literal and 
 strict sense is not discharged at one port, and 
 the vessel proceeds to another with a small 
 portion of the cargo, the question, whether she 
 was substantially discharged at the first port, 
 must be left to the jury. Upton v. Salem Com- 
 mercial Ins. Co., 8 Met., 605. 
 
 17. Whether the risk has been increased is 
 a question for the jury. Oamwelln. Merchants 
 and Farmers Mut. Ins. Co., 12 Gush., 167. 
 
 1 8. Wliether the word '• room," among man- 
 ufacturers, was understood as one loft or story 
 
377 
 
 COURT AND JURY. 
 
 S78 
 
 Questions for the jury. 
 
 divided by partitions with doors in them, was 
 a question of fact for the jury, and the jury 
 could find that it was so understood, notwith- 
 standing it was not so known among persons 
 engaged in the business of insurance. Daniels 
 V. Hudson River Fire Ins. Go., 13 Cush., 416. 
 
 19. Whether there has been any increase of 
 risk is a question of fact lor the jury. Rich- 
 ards V. Protection, Ins. Go., 30 Me., 273. 
 
 20. The insured warranted to keep a watch 
 while manufacturing starch. Held, whether 
 a suitable watch under the circumstances was 
 kept, was a question for the jury. Percival 
 c. Maine Mut. Ina. Go., 33 Me., 242. 
 
 21. Whether the right to abandon has been 
 waived may sometimes be a question of law 
 purely ; and at others, a mixed question of law 
 and fact; when it is a question of law merely, 
 the court will decide it; and if it is a ques- 
 tion of law and fact, the court will leave it to 
 tlie jury upon proper instructions. Gureier v. 
 FhOadelpMalns. Co., 5 S. & R., 113. 
 
 22. The insured is not obliged to apply to 
 the insurer to have the insured premises ex- 
 amined to ascertain whether an alteration has 
 increased the risk ; he may take the risk of that 
 question before the jury. Perry Gounty Mut. 
 Ins. Co. V. Steuart, 19 Penn. St., 45. 
 
 23. " On merchandise, in a three story 
 building on the corner of Third street and 
 Sugar alley, with liberty to erect a brick 
 building on the back of the lot adjoining the 
 above named building in the rear." Held, a 
 question of fact for the jury to determine 
 whether the goods were in the building de- 
 scribed. Franklin Fire In^. Go. v. Updegraff, 
 43 Penn. St., 350. 
 
 24. There was evidence tending to show a 
 waiver of one of the conditions. Held, the 
 jury was to say whether it was suflScient. Ly- 
 coming County Ins. Co. o. ScJiollenberger, 44 
 Penn. St, 259. ■ 
 
 25. The insured was required to state the 
 distance and direction from each other, and 
 from other buildings within four rods of the 
 premises insured, to which they replied : " A 
 small shed twenty -two feet from Oie mill, and a 
 small building where cotton waste is now kept ; 
 both are to be moved fifteen rods." The ap- 
 plication warranted the description to be cor- 
 rect, so far as regards the risk and value of 
 the property insured. Held, insured were en- 
 titled to a reasonable time to remove the shed 
 and building, of which the jury were the ex- 
 
 clusive judges. Lindsey v. Union Mutual 
 Fire Ins. Co., 3 R. I., 157. 
 
 26. Stipulated: "Not to be liable for any 
 partial loss on bar or sheet iron, etc., unless 
 the same shall amount to twenty per cent, on 
 the aggregate value." The policy was written 
 on 808 bundles of rods. Hdd, the court could 
 not determine, as matter of law, whether bun- 
 dles of rods were bar iron within the pro- 
 viso — this was a question of fact for the jury . 
 Evans ii. Commercial Mui. Ins. Co., 6 R. I., 47. 
 
 27. The case belonged to a class in which 
 the circumstances of reasonable notice would 
 seldom be the same. Hdd, tlic court wtis 
 right in leaving the question to be decided by 
 the jury. Davis v. Western Massachusetts Iiis. 
 Co., 8 R. I., 277. 
 
 28. The court refused to charge, " If the in- 
 sured did not have an interest in his uncle's 
 life equal to the sum insured, the policy was 
 void, and that the plaintiff's only interest in 
 the life of his uncle was the amount of his 
 uncle's debt to him, and. that he could in no 
 event recover a greater sura than that." Held, 
 it was for the jury to say whether, by a fair 
 and honest estimate, the plaintiff had an inter- 
 est in his uncle's life, to the amount insured. 
 Mowry o. Home Life Ins. Co., 9 R. I., 346. 
 
 29. The policy required that notice of al- 
 terations which tended to increase the risk, 
 should be given within twenty days. Held, if 
 alterations were made, and no notice given, it 
 was for the jury to say whether the risk was 
 thereby increased. Sehenek v. Mercer County 
 Muttial Fire Ins. Co., 24 N. J., 447. 
 
 30. WTiether the risk is increased by alter- 
 ations or additions to the building insured, is 
 a question of fact for tlie jury. Jolly «. Balti- 
 more Fq. Society, 1 H. & G., 295. 
 
 31. Though the plaintiff's proof is uncon- 
 tradicted by any witness, the court cannot 
 assume that the jury will find tlie facts accord- 
 ing to that proof; nor has the court any right 
 to instruct them to find according to the 
 uncontroverted proof, for the jury have the 
 power to refuse their credit to testimony, and 
 the court has not the power to control them 
 in the exercise of that admitted right. Charles- 
 ton Insurance and Trust Co. f>. Comer, 2 Gill, 
 410. 
 
 .={2. The court had not the right to assume 
 a question of fact which is to be inferred 
 from the evidence, though the jury would have 
 found the fact aa assumed by the court. Field 
 
 18? 
 
379 
 
 COVENANTOR AND COVENANTEE — CREDITORS. 
 
 380 
 
 Miscellaneous. 
 
 t. Insurance Company of North America, 3 
 Md., 244. 
 
 33. The only question in the case -waa, 
 whether she was seaworthy. Held, a question 
 of fact which the court rightly submitted to 
 the jury. Union Ing. Co. o. Caldwell, Dud. 
 Ap. S. C, 863. 
 
 34. The premises insured had been on fire, 
 but it was not so stated to the insurer. Seld, it 
 was a question for the jury, whether that fact 
 ought to have been made known, and it was 
 proper for the court to tell the jury to consider 
 the true cause of the fire, and not the suspicions 
 and belief of the insured as to its cause. Sort- 
 ford Protection Ins. Co. v. Harmtr, 8 Ohio St., 
 452. 
 
 35. It is the duty of the court to leave the 
 question of insurable interest to the jury, for 
 them to determine it, under proper instruc- 
 tions. Mitchell <D. Home Irvt. Co., 38 Iowa, 421. 
 
 36. When the master has broken up the 
 voyage and sold the ship, it ought to be left to 
 the jury to say, whether a prudent man would 
 have sold or repaired and proceeded with her 
 to earn what she could. Qreen v. Boyal Bx- 
 ehange Ass. Co., 6 Taunt, 68; s. c, 1 Marsh., 
 447. 
 
 37. Where a usage of custom was claimed to 
 exist, it was held proper for the jury to decide 
 the question upon the evidence given pro and 
 eon. Palmer v. Blackburn, 1 Bing., 62; 7 
 Moore, 339. 
 
 38. The jury found that there was an aver- 
 age loss. Held, the court was precluded to 
 say there was a total loss. Cazalet v. 8t. Barbe, 
 1 Term, 187. 
 
 39. Insurers claimed the right to defend on 
 the ground that the claim of insured was 
 fraudulent by false swearing. Held, two is- 
 sues of fact: First. Whether there was fraud 
 in the claim for the loss. Second. Whether 
 the claim was supported by the false swear- 
 ing of the pursuer. M'Kurdff d. N'orth Brit- 
 ish Ins. Co., 20 0. C. S., 468 ; 30 Scot. Jur., 235. 
 
 40. The defenders averred fraud in the dec- 
 laration, proposal and corroborative reports. 
 Held, an issue of fact must be allowed. 
 M'Lavis V. United Kingdom Temp, and Generat 
 Prov. Institution, 23 C. C. S., 559; 33 Scot 
 Jur., 286, 
 
 41. The person proposed stated that he had 
 not snflfered from any disease or disorder tend- 
 ing to shorten life ; that he was not aware of 
 any circumstances touching his health or hab- 
 
 190 
 
 its rendering insurance on his life more than 
 Usually hazardous, or with which the direct, 
 ors ought to be made acquainted. Dr. D., of 
 Aberdeen, his medical attendant, had attended 
 him five or six years before. Held, the issue 
 must be, whether Dr. D. was his ordinary 
 medical attendant, and that as such, he attend- 
 ed the party insured during an illness five or 
 six years prior to the making of the declara- 
 tion^ whether insured ever suffered from any 
 disease or disorder tending to shorten life, and 
 whether insured wrongfully failed to disclose 
 facts material to the risk. Adamson c. Scottish 
 Provincial Ins. Co., 6 C. C. S. (3d ser.),442; 40 
 Scot Jur., 217. 
 
 COVENANTOR AND COVENANTEE. 
 
 (See SuictDS.) 
 
 1 . A. covenanted to do and perform all such 
 matters and things as should be requisite for 
 continuing and keeping the policy in force; 
 but he threw himself into the Thames and was 
 drowned. Held, the covenant could not bs 
 construed negatively, hence it was not broken 
 by the act of suicide, though that forfeited 
 the covenantee's rights under the policy. 
 Dormny v. Borradaile, 10 Beav., 335 • 16 L. J. 
 Chan., 337; 5 C. B., 380; 11 Jur., 231. 
 
 2. Lessee covenanted to insure the premises 
 in the lessor's name, the money to be expended 
 in the erection of new buildings. Held, a cov- 
 enant running with the land, and an action 
 would lie on it against the assignee of the 
 lease. Douglass d. Murphy, 16 V. C. Q. B., 1 13. 
 
 CREDITOES. 
 
 (See SuBBOOATioK.) 
 
 Eights 
 
 OF. 
 
 1. The owner of personal properly mort- 
 gaged it to B., and procured insurance pay- 
 able, in case of loss, to B., as interest might 
 appear. B. subsequently pnrcha.sed an undi- 
 vided half of the property, surrendering the 
 debt in part payment, and entered into part- 
 nership with the insnred, using the property 
 in the business. HeU, after a loss, the credit. 
 
381 
 
 CREW — DAMAGES. 
 
 382 
 
 What are not — What must be considered in estimating. 
 
 ore of the firm could reach the fnndB in the 
 hands of insurers in preference to the creditors 
 of either partner, notwithstanding' there had 
 been no assignment of the policy. Burbank v. 
 McClver, 54 N. H., 339. 
 
 2. The broker's estate was sequestrated, but 
 he had received certain preminms for certain 
 underwriters on policies effected by him. 
 Held, the underwriters were preferred credit- 
 ors. Bertram v. Bichmond, Faculty Dec, 1801 
 to 1807, p. 144. 
 
 CREW. 
 
 (See Babbatbt; Seaxbn; Ssawokthihbss.] 
 
 CUSTOM. 
 
 (See TJeAeE ash Cubtok.) 
 
 DAMAGES. 
 
 (See AsjusTKsm; Fbbisht; Gehbbai. Ateragb; 
 PABTICCI.AB ATBBAai ; Fabtiai. I«ss.) 
 
 I. 
 
 What abb wot. 
 
 n. 
 
 MUST BE COKSIDEBED IH ESTI- 
 
 
 XATl^O. 
 
 in. 
 
 inrST BB KECEIVED TO REDtTCB, 
 
 IV. 
 
 MUST NOT BE KECEIVED TO KE- 
 
 
 DUCE. 
 
 V. 
 
 Whtcn the sum nrsuKED is the meas- 
 
 
 ure of. 
 
 VI. 
 
 THE MEA8UKE OF, EXCEEDS THE 
 
 
 SUM INSURED. 
 
 vn. 
 
 VALUED POLICY IS MEASURE OP. 
 
 VIII. 
 
 THE VALUE OP THE PROPERTT IS 
 
 
 THE MEASURE OP. 
 
 IX. 
 
 •WAGES AND PROVISIONS ABE 
 
 
 PART OP. 
 
 X. 
 
 NOT LIMITED TO AMOUAT CLAIMED 
 
 
 IN PBELIMINABY PROOFS. 
 
 XI. 
 
 Generally. 
 
 I. What ake hot. 
 
 1, In ascertaining value of goods under an 
 open policy, a charge for purchasing is not 
 part of the damages. Anon., 1 Johns., 312. 
 
 2. The intrinsic value of a building is tlio 
 measure of damages. What it is worth to re- 
 move to other premises (the 'lease of the land 
 being about to expire) is not to be considered. 
 Laurent v. Chatham Ing. Go., 1 Hall (N. T.), 40. 
 
 3. On property described as his buildings. 
 He was tenant for a year. Held, his damages 
 must be limited to the value of the unexpired 
 term ; that loss by interruption of his busi- 
 ness in consequence of the fire must not bo 
 considered. Ifiblo v. North American Fire 
 Ins. Go., 1 Sand., 551. 
 
 4. The policy was underwitten in Septem- 
 ber, 1791, from Havre to Ostend. Exchango 
 was then twenty-four pence on the French 
 crown of three livres. Soon after, the loss h&p- 
 pened. Part of the cargo was saved and sold 
 at three months credit Exchange had fallen 
 from twenty-four to fifteen, at which rate in- 
 surers were ready to pay. Held, insurers had 
 nothing to do with the rise or fall. TlieUusson 
 V. BetDtek, 1 Esp., 77. 
 
 5. The market value at the port of destiua- 
 tion is no guide in ascertaining the damages. 
 Portsmouth Ins. Go. v. Brasee, 16 Ohio, 81. 
 
 6. On his interest in the Ship Inn and 
 offices. They were destroyed, and the arbi- 
 trator allowed for the loss which insured had 
 sustained by not being able to occupy the 
 premises. Held, error, for though profits are 
 insurable, they must be insured as profits. 
 Sun Fire Office Go. «. Wright, 3 Nev. & Man., 
 819; 1 A.&E., 621. 
 
 7. On buildings. Held, insurers were ntjt 
 liable for damages suffered in consequence 
 of nonoccupancy while repairs were being 
 made, nor for extra wages insured were com- 
 pelled to pay in consequence of nonoccupancy 
 during the period. Meneies ®. North British 
 Ins. Co., 9 C. C. S. (N. S.), 694. 
 
 II. What must be coitsideekd in esti- 
 mating. 
 
 1. Stipulated : " Loss or damage shall be 
 estimated according to the true and actual 
 cash value at the time the loss shall happen." 
 Insured offered to prove the actual cash value 
 before the injuiy, from which the damage 
 caused by collision might have been deducted, 
 and thus the cash value of the property when 
 the fire attacked it might have been ascer- 
 tained ; but the plaintiff in error objected, and 
 the evidence was excluded. Held, tliere was 
 
 191 
 
383 
 
 DAMAGES. 
 
 384 
 
 Wliat must be received to reduce. 
 
 then only oue way to establish the cash value, 
 and that was by ascertaining the cost of restor- 
 ing the vessel to the condition in which she 
 was before tlie fire. Western Massachusetts 
 Ins. Co. ■». Transportation Go., 12 Wall., 201. 
 
 2. If goods are jettisoned, their value must 
 be estimated by the prime cost or original 
 value. If the ship has arrived at her port of 
 destination, the value at that port governs. 
 Rogers v. Mechanics Ins. Co., 1 Story, 603 ; 2 
 id., 173. 
 
 3. The prime cost of a vessel is not conclu- 
 sive evidence of her value. The insured may 
 prove and recover her actual value. Snell v. 
 Delaware Ins. Co., 4 Dall., 430; s. c, 1 Wash. 
 C. C, 509. 
 
 4. Open policy on goods. Seld, the price 
 fixed in the invoice was not the value for 
 which insurer was liable, because that would 
 subject him to ex parte evidence ; that neither 
 prime nor invoice coat were proper evidence 
 to determine the indemnity; the market price 
 of the property insured at tlie time and place 
 of export was the measure of indemnity. Oar- 
 son v. Marine Ins. Co., 2 Wash. C. C, 468. 
 
 5. The goods were captured. Insured, 
 under an open policy, was entitled to recover 
 prime cost, with the usual charges added. 
 LeBoy v. United Ins. Co., 7 Johns., 344. 
 
 6. Where an abandonment is made, and the 
 property is sold, the expense of selling and 
 wharfage is to be deducted from the gross sale. 
 M^ Bride v. Ma/rine Ins. Co., 7 Johns., 431. 
 
 7. Policy for a sum expressed in dollars, on 
 property in Cuba. Held, in estimating the 
 damages, the loss must be ascertained in the 
 currency of the place where the loss occurred, 
 and its equivalent in tlie country where the 
 action was brought. Burgess v. Alliance Ins. 
 Co., 10 Allen, 221. 
 
 8. The actual damage caused by fire, not 
 exceeding the sum insured, is the measure or 
 the insurer's liability. Ellmaker v. Franklin 
 Fire Ins. Co., 5 Penn. St., 183; s. c, 6 Watta 
 & B., 439. 
 
 9. Stipulated : " The said loss or damage to 
 be estimated according to the true actual cash 
 value of the said property at the time the loss 
 shall happen." Held, error to instruct the 
 jury that, "The value as estimated in the 
 manufacture of each machine, and before it 
 was tried in the field, would be the stand- 
 ard of valuation." The true rule was, what 
 \hey were worth at the time the fire haOf 
 
 193 
 
 pened, and this must be ascertained by testi- 
 mony. Commonwealth Ins. Co. v. Bennett, 37 
 Penn. St., 205. 
 
 10. The market value of the thing insured 
 at the time and place the risk commenced, is 
 the value of the insurable interest. And if 
 purchased near that time and place, the cost 
 to the insured is the most satisfactory, though 
 it is not the only criterion. Marehesseau v. 
 Merchants Ins. Co., 1 Bob. (La.), 438. 
 
 11. The insurer is bound for the value at 
 the time of tlie loss; if the goods are damaged, 
 the difierence between their sound and dam- 
 aged value. Hoffman v. Western Marine and 
 Fire Ins. Co., 1 La, An., 216. 
 
 12. The premium is a part of the value in- 
 sured, and is to be added to the cost and 
 charges of the goods when ascertaining the 
 amount of loss, in case the policy is not valued. 
 Louisville Marine and Fire Ins. Co. v. Bland, 9 
 Dana, 143. 
 
 13. Action for loss on machinery. Held, 
 the jury must consider the state and con- 
 dition of the machinery at the time of the 
 fire, and what it would have cost to replace 
 it. And in doing that, they may try what 
 would be the entire expense of new machinery, 
 and then inquire whether the mill would be 
 better and how much better, with the new 
 than with the old as it stood at the time of the 
 fire ; and whatever it would be better should 
 be deducted from the entire expense of the 
 new. Vance v. Forster, 2 Can. & D., 118. 
 
 14. The intrinsic or marketable worth of 
 the subject insured is the rule for estimating 
 its worth. The actual value of the property 
 insured and destroyed is the true criterion; 
 not the sum named in the policy. Hercules 
 Ins. Co. V. Hunter, 14 C. C. S., 1137. 
 
 15. An order was made to wind up the 
 company. Held, the policy holder was en- 
 titled to prove what a solvent insurance office, 
 with the same extent of proprietary capital as 
 the company in liquidation, would require 
 him to pay for a policy of the same amount, 
 with the same conditions and the same rate 
 of premium. In re English Ass. Co., Holdich's 
 Case, 42 L. J. Ch., 612; 14 L. R. Eq., 72; 20 W. 
 
 R.,567; 26 L. T. (N. S.), 415. 
 
 III. What must be keceived to eb- 
 
 DTTCE. 
 
 1. If the cargo is forwarded from the point 
 
385 
 
 DAMAGES. 
 
 386 
 
 What must not be received to reduce — When ilie sum insured is the measure of. 
 
 of distress, insurers of freight are liable for 
 the sum insured, minus the pro rata freight to 
 that puint. Saltiia v. Ocean Ins. Co., 12 Jolins., 
 107. 
 
 2. A policy to S., 'who agreed to sell to B., 
 gave him possession and received $1,500 of 
 the purchase money. Held, insured could nut 
 recover beyond tlie unpaid purchase money. 
 Shotteell f). J^erion, Int. Co., 5 Bos., 347. 
 
 3. Policy provided: " The insurer shall not 
 be liable for more tlian the sum insured, in 
 any case whatever." A partial loss had been 
 paid, but afterwards the property was totally 
 destroyed. Seld, insurer was entitled to de- 
 duct from the sum insured any prior partial 
 loss paid under the same policy. Curry v. 
 CommoniceaMh Ins. Co., 10 Pick., 535. 
 
 4. The building was destroyed by Are. The 
 insurers elected to rebuild, and a plan, differ- 
 ing in some respects from the old one, was 
 adopted. Hdd, it was error to instruct the 
 jury that no deduction was to be made from 
 the expense of rebuilding, although the new 
 was more durable than the old building, and 
 for some purposes more valuable. Brinley r>. 
 Nalumal Ins. Co., 11 Met., 195. 
 
 5. When there is suit upon one of several 
 policies contributing ratably, the measure of 
 damage is, in proportion as the amount of 
 that policy bears to the whole loss, if it is less 
 than the aggregate amount insured. Harris v. 
 Protection Ins. Co., Wright, 548. 
 
 6. £6,000 on goods from Bengal to London, 
 on ship or ships which should sail between 
 September 1, 1779, and June 1, 1780. Another 
 insurance, £4,000, was made on goods to sail 
 between February 1st and December 31, 1780. 
 Groods were laden on two ships, and insured 
 made a declaration that he shipped goods to 
 the amount of £4,889, under the first policy, and 
 £1,100 under the second. Both vessels sailed 
 and arrived in the channel together, but the 
 first was afterwards lost. Held, insurers must 
 have credit for salvage to the amount of 
 £1,100. HenOiman e. Offtet/, 3 Doug., 135. 
 
 TV. What must not be beceived to 
 
 BEDUCE. 
 
 1. In an action on an open pdlicy on goods, 
 the insured is entitled to recover their invoice 
 price without any deduction for drawback. 
 Oahn V. Broome, 1 Johns. C, 120. 
 
 8 Freight duties or charges are not to be con- 
 13 
 
 sldered in determining a partial loss on goods. 
 Cory V. Boylston Ins. Co., 107, Mass., 140. 
 
 3. A committee was appointed by the presi- 
 dent, in accordance with the provisions of the 
 act of incorporation, to inquire into the loss, 
 to ascertain the sum to which insured was en- 
 titled, and to provide for the payment of it. 
 They reported. Held, the plaintiff was not 
 limited in his recovery to the amount reported. 
 Insurance Co. v. Rupp, 29 Penn. St, 526. 
 
 4. In case of sale from necessity, the salvage 
 becomes the property of insurers ; but insured 
 is entitled to recover the full amount of his 
 claim, irrespective of the amount of the sal- 
 vage. Btephenson v. Piscataqua Fire and Ma- 
 rine Ins. Co., 54 Me., 55. 
 
 5. She was chartered from New York to 
 San Francisco, thence to Callao, thence to the 
 Chincha Islands, there to take a cargo of 
 guano for Hamburgh or Rotterdam, and the 
 ship owner insured, " lost or not lost," several 
 suras, respectively, on charter, primage and 
 property on board, from New York to San 
 Francisco. She sailed under the charter party 
 and was wrecked between New York and San 
 Francisco. The plaintiff had also chartered 
 her to others from New York to San Francisco, 
 and had made insurance on that charter, of 
 which the defendants here had knowledge 
 when they made this policy. Held, the inter- 
 est of insured in the guano charter com- 
 menced when the ship sailed from New York ; 
 and the fact that she was chartered from New 
 York to San Francisco and insured by another 
 policy was no defense to the plaintifl^s action. 
 Melcfier v. Ocean Ins. Co., 60 Me., 77. 
 
 6. In case of loss, the damage shall be esti- 
 mated according to the true and actual cash 
 value of the said property at the time the 
 same shall happen. Held, a general depres- 
 sion in the value of steamers generally, caused 
 by circumstances which might be temporary 
 only, must not be considered by the jury in 
 determining the value of tlie vessel. McQuaig 
 ■0. Quaker City Ins. Co., 18 U. C. Q. B., 130. 
 
 Y. Whek the sum insubed is the 
 
 MEASURE OF. 
 
 1. Commission merchants insured, "On 
 goods as well the property of the insured as 
 that held by them in trust or on commission." 
 Held, they could recover the entire value of 
 all the goods so held at the time of the loss, 
 
 19a 
 
Bsr 
 
 DAMAGES. 
 
 388 
 
 When the measure of, exceeds the sum insured — When valued jwhcgr is measure of. 
 
 not exceeding the sum insured. DeForest v. 
 Fulton Fire Ins. Go., 1 Hall, 84. 
 
 2. The policy did not stipulate that the in- 
 sured must disclose the exact state of his title. 
 He had possession under a contract for a deed, 
 hut had not paid all the purchase money. 
 Held, he could recover the sum insured if that 
 did not exceed the actual value of the prop- 
 erty lost. .Mtna In». Co. v. Tyler, 16 Wend., 
 385; aflBiming 12 id., 507. 
 
 3. The mortgagor's equity of redemption 
 was sold on execution, but he had the legal 
 right to redeem. IleW, he could recover the 
 whole sum insured, not exceeding however 
 the value of the property. Strong v. Manu- 
 facturers Im. Go., 10 Pick., 40. 
 
 4. $8,350 on all or either of the freight 
 buildings at Charlestown. Insured owned 
 several freight buildings, one of which was 
 burned, and was of the value of $50,000. Beld, 
 ■insurers were liable for the whole amount in- 
 sured. Commonwealth v. Hide and Leather 
 Ins. Co., 113 Mass., 136. 
 
 5. The wreck was sold under an attachment 
 and the proceeds brought into court, which, 
 with all the insurance, did not amount to the 
 whole value of the subject insured. Held, in- 
 surers were liable for the whole amount of 
 policy, without credit for any portion of the 
 wreck. Eureka Ins. Co. c. Bobinson, 56 Penn. 
 St., 256. 
 
 6. A mortgage was given pMtly in payment 
 of the land, and partly to secure advances 
 made for building, and the mortgagee insured. 
 Held, the mortgagee could recover the whole 
 amount of the loss, and could not be driven 
 to seek his remedy against the land for any 
 part of it. Bex v. Insurance Companies, 3 
 Phila., 357. 
 
 7. Stipulated: "In all cases of other in- 
 surance, the insured shall not be entitled to 
 demand or recover on this policy, any greater 
 portion of the loss or damage than the amount 
 hereby insured shall bear to the whole amount 
 insured on said property." The amount in- 
 sured by this policy was $2,666.66, and by an- 
 other company $1,000. The value of the 
 property lost was $4,000. Held, the insured 
 was entitled to receive the whole amount of 
 the policy (citing Richmondville Seminary v. 
 Hamilton Ins. Co., 14 Gray, 459; Haley v. 
 DorchBstor Ins. Co., 1 Allen, 536 ; iEtna Ins. 
 Co. V. Tyler, 16 Wend., 385). Phillips v. Perry 
 County Ins. Co., 7 Phila., 673 
 
 194 
 
 8. Insurer contracted to make good all loss 
 or damage not exceeding the sum insnred. 
 The value at risk and the loss exceeded the 
 sum Insnred. Held, insurer was liable for the 
 sum insured. Mississippi Mut. Ins. Co. v. 
 Ingram, 84 Miss., 215. 
 
 9. Cotton was stored in several warehouses 
 and insured for $20,000. Cotton to the value of 
 $17,846 in one warehouse was burned. There 
 was also cotton in the other warehouses, value 
 in all $39,000. Held, the insured should re- 
 cover the full value of the cotton lost, and 
 could not be limited to the proportion which 
 the whole value at risk bore to the whole 
 amount insured. Nicolet v. Insurance Co., 3 
 La. (O. S.), 366. 
 
 10. If the amount lost exceeds the sum in- 
 sured, the insurer is liable for the whole 
 amount insnred. Peddie v. Quebec Fire Ass. 
 Co., Stuart, 174. 
 
 1 1 . The value of the stock was £3,850- The 
 whole amount of damage was £397, and the 
 whole amount insured was £100. Edd, in- 
 sured was entitled to recover the sum insnred. 
 Thompson «. Montreal Ins. Co., 6 XJ. C. Q. B., 
 319. 
 
 YI. When the measuee of, exceeds 
 
 THE SUM INSTJEED. 
 
 1. The insured may recover in excess of the 
 sum insured, namely, for expenses incurred for 
 the preservation of the thing insured, iato- 
 rence «. Van Home, 1 Caines, 276. 
 
 2. The insurer is liable beyond the sum in- 
 snred for the expenses of labor and travel for, 
 in and about the recovery of the property in- 
 sured. Watson n. Marine Ins. Co., 7 Johns., 
 58. 
 
 3. Where the ship is driven by perils of the 
 sea into a port of distress and general average 
 charges attach to the cargo, the insurer on 
 cargo must pay them in addition to a total 
 loss if there is one. Barker •. Pluenix Ins. 
 Co., 8 Johns., 307. 
 
 VII. "When valued policy is meas- 
 ure OF. 
 
 1. She was bottomried, and after abandon 
 ment, sold to satisfy the bond. Held, insured 
 could recover the amount valued in the pol- 
 icy less the amount tor which she sold. Wil- 
 liams V. Smith. 2 Caines, 13 
 
389 
 
 DAMAGES. 
 
 390 
 
 When the value of the property is the measure of — When wages and provisions are part of. 
 
 2. Tlie inssured is entitled to recover accord- 
 ing to the valuation agreed upon by the par- 
 ties, if there be any, and not according to cost 
 at manufactory or prime cost Harris «. Bogle 
 Fire Ins. Co., 5 Johns., 368. 
 
 3. $9,000 on ship valued at $18,000; the in- 
 sured made no representation as to his share 
 in the vessel ; he was in fact owner of but one- 
 third; hut claimed the sum insured on the 
 ground that he intended to insure the premi- 
 um as well as the value of his interest in the 
 ship. There was a total loss. Held, he was 
 entitled to recover the whole amount insured. 
 Mago ». Mains Fir«<md Marine Ins. Co., 12 
 Hass., 239. 
 
 4. Ship insured for $18,000, valued for 
 $18,000, came in collision with another vessel 
 to which slie did damage $10,000. Her own 
 repairs cost $8,000, besides expenses in gen- 
 eral average. Her damaged value was $6,000. 
 Etid, insurer's liability for damage to the 
 other vessel could not he disputed ; and must 
 he estimated upon the same basis of value as 
 was the ship-owner's liability to the injured 
 vessel, niunely, the value of the ship at the 
 point of time immediately preceding the eol- 
 lisicn and not her value after she was dam- 
 aged by the collision. Walker e. Boston Int. 
 COn 1* Gray. 288. 
 
 5. On cargo valued. The goods were dam- 
 aged. Held, the measure of damage, as be- 
 tween insurer and insured, was to ascertain 
 the damage per cent on the property dam- 
 aged, and apply that proportion to the valua- 
 tion named in the policy. Leuiis e. Rueker, 2 
 Bnrr., 1167. 
 
 Vlil. When the valtje of the peop- 
 
 EETY IS THE MEASUEE OF. 
 
 1. The insured is entitled to the value of 
 the goods at the place of 'destruction and it is 
 irrelevant to inquire whether the customs du- 
 ties were paid or bond given for them. Wolfe 
 V. Howard Ins. Co., 1 Sand., 124; 7 N. T., 583. 
 
 2. Tlie carrier insured the goods against 
 loss or damage which he might sustain on ac- 
 count of himself or others. Held, the value 
 of the property was the measure of damage. 
 Savage c. Corn Sxdiange Ins. Co., 36 N. T., 
 655; s. c, 4Bos., 1. 
 
 3. Defendant agreed to insure certain books, 
 but failed to do so. Held, the plaintiff's meas- 
 
 ure of damage, in tlie absence of evidence of 
 usage to the contrary, was the value of the 
 books. Sla v. French, 11 N. H., 356. 
 
 4. The value of the goods at the time of tlie 
 loss is the basis upon which the insurer's lia- 
 bility for damage is founded ; but where the 
 charter provided that the directors shall de- 
 termine the amount to be insured, which shall 
 not exceed the value of one-half the property: 
 Held, the liability of the insurer was limited 
 to one-half the actual value of the property 
 destroyed. Atwood v. TTnion Mutual Fire Ins. 
 Co., 28 N. H., 234. 
 
 5. Trover to recover the value of a policy 
 of insurance, effected by a bankrupt on the 
 life of one Lateward for £3,000. The bank- 
 rupt was indebted to the defendant and as- 
 signed the policy to him. The company paid 
 to the bankrupt £679 15s., in the presence of 
 the defendant, and the policy was thereupon 
 delivered and canceled. The money was paid" 
 merely as a gift or gratuity, and not as any- 
 thing due on the policy as a valid instrument. 
 The company had determined that they were 
 not liable upon the policy, and the bankrupt 
 and defendant both admitted that they had no 
 claim upon the insurance company. Hdd, as 
 the payment was made voluntarily upon an 
 instrument admitted to be invalid the defend- 
 ant was not liable except for the value of the 
 parchment WiUs v. WeOs, 8 Taunt, 264. 
 
 6. The actual market value of the goods at 
 the time of the loss is the measure of damage. 
 Equitable Fire Ins. Co. «. Qain, 11 L. C, 170. 
 
 7. The lessee covenanted to insure, and as- 
 signed the lease. The lessor brought this ac- 
 tion to recover for a failure to insure. Held, 
 the value of the buildings destroyed was the 
 measure of damage. Douglass c. Murphy, 16 
 U. C. Q. B., 113. 
 
 IX. When wages and peovisions are 
 
 PART OF. 
 
 1. Wages and provisions from time vessel 
 is obliged to bear away to a port of necessity, 
 in consequence of injuries received, arc re- 
 coverable under a policy on the ship. Hen- 
 shaiB V. Marine Ins. Co., 2 Caines, 274. 
 
 2. If insured pay seamen's wages, insurers 
 must reimburse insured, if enough for tliat 
 purpose is saved from the wreck abandoned. 
 Frothinaham o. Prince, 3 Mass., 563. 
 
 105 
 
391 
 
 DEATH. 
 
 392 
 
 By the hands of justice — While violating law. 
 
 X. When not limited to amount 
 
 CLAIMED IN PEELIMINAET PBOOFS. 
 
 The recovery of the insured is not limited 
 to the amount which he claims in his state- 
 ment of loss, if a settlement is not made in 
 pursuance of that statement. American Ins. 
 Go. V. OrimoU, 14 Wend., 399. 
 
 XI. Geneeally. 
 
 1. The defendant failed to issue the policy 
 according to the contract. Held, liable as 
 upon a conti-act of insurance, at all events for 
 damages for not delivering the policy. Fried 
 ■B. Boyal Ins. Co., 50 N. T., 243; s. c, 47 Barb., 
 127. 
 
 2. The court was authorized by statute to 
 award damages if the appeal was frivolous. 
 Held, the court would not exercise the power 
 unless satisfied that the appeal was taken for 
 sinister and improper motives. Morse v. Buf- 
 falo Fire and Marine Ins. Co., 30 Wis., 584. 
 
 3. Defendant assigned a policy on his life, 
 and covenanted not to do anything to avoid it. 
 He went to Europe without the company's 
 consent, by which the policy was avoided. 
 Hdd, the measure of damage was the value of 
 the policy at the time of the breach, regard- 
 ing the fact that defendant had covenanted to 
 pay, and would pay the necessary premiums to 
 keep it in force. Hamkins «. Covithurst, 12 W. 
 R., 825. 
 
 DEATH, 
 
 (See Suicide.) 
 
 I. Bt the hands op Justice. 
 II. While violatihg law. 
 
 I. Bt the hands of justice. 
 
 The person whose life was insured commit- 
 ted forgery, for which he was apprehended, 
 convicted and suffered death. He was de- 
 clared a bankrupt before he was apprehended, 
 and all his effects, including the policy, 
 passed to an assignee. Beld, if the risk had 
 been expressly insured against, the contract 
 could not be sustained, because it would be 
 void upon the plainest principles of public 
 policy, for to hold it valid would remove one 
 196 
 
 of those restraints which operate in the minds 
 of men against the commission of crime 
 (reversing Bolland •». Disney, 3 Buss., 351). 
 AmieaMe Society v. Bolland, 4Bli. (N. B.), 194. 
 
 II. While violating law. 
 
 1. The policy stipulated that it should not 
 extend to a case of death caused by dueling, 
 fighting, or other breach of the law on the 
 part of the insured, or by his willfully expos- 
 ing himself to any unnecessary danger or 
 peril. The person whose life was insured 
 was driving a match on a race course, on the 
 event of which a large sum of money was 
 wagered. ITie two sulkies came in collision. 
 The person whose life was insured jumped 
 out upon his feet uninjured, he spoke to his 
 mare, she slackened her speed, he started to 
 cateh her and ran about twenty feet by her 
 side ; she was pressed in towards him by the 
 driver of the other sulky, and he was entangled 
 in the reins, thrown down and dragged along 
 a few feet, until his head struck a stone with 
 great force, from which he died the following 
 morning. The statute law of the state de- 
 clared racing, trotting, running or pacing any 
 horse for a wager, a misdemeanor, and sub- 
 jected the parses to a fine not exceeding f 500. 
 Seld, if he had died the moment he was 
 thrown from the sulky, his death would have 
 been caused by a violation of the law, though 
 the driver of the other sulky may have disre- 
 garded the rules of the course and may have 
 intentionally sought to run tlie deceased off 
 the track ; the fact that the deceased was clear 
 from the sulky, harness and reins, upright 
 and uninjured and spoke to the mare to stop, 
 and then started forward to get hold of the 
 lines to stop her, was not a new force or cause 
 intervening between the original cause and 
 the injury sufficient to take the case out of 
 the exception. Insurance Go. v. Beaver, 19 
 Wall., 531. 
 
 2. Stipulated : " In case the insured shall 
 die by the hands of justice, or in the known 
 violation of any law of the state he is permit- 
 ted to visit, the policy shall be void." The 
 plaintiff insisted, whether the deceased came 
 to his death in known violation of the law, 
 was a question for the jury; also, whether the 
 death of the insured was a reasonable, rightful 
 or excusable result of any known violation of 
 law by him, was a question for the jury; but 
 
393 
 
 DECK LOADS. 
 
 394 
 
 When shaJl not be contributed for. 
 
 tlie court refused to submit Oie question. HelA, 
 error. Bradley v. Muiuai Betufit Life Ins. Co., 
 45 N. Y., 433; s. c, 3 Lans., 341; see Clufft. 
 Mutual Ben^ Life Tns. Go., 99 Mass., 317. 
 
 3. Stipulated: " If the insured shall die by 
 suicide, or in consequence of the violation of 
 any law, the policy shall be void." He was 
 killed by H. immediately after he had com- 
 mitted adultery with the wife of H. Held, 
 though the act of adultery was a violation of 
 law, the insured did not die in consequence 
 of it, if the offense had been completed, for in 
 that case it could not be said, that at the time 
 he was killed, he was violating any law or 
 even committing a trespass. Cfoetzman, v. Con- 
 necticut Mutual Life Ins. Co., 3 Hun. (N. Y.), 
 515; s. c, 5 N. Y. S. C, 573. 
 
 4. '■ In case the insured shall die by his own 
 hand, * * or in the known violation of 
 any law of the United States, or of the said 
 provinces, or of any other country, this policy 
 shall be null and of no effect" He was killed 
 by a pistol shot from the hands of Cox while 
 attempting to take with force the horses of 
 Cox, under claim of collecting a debt Held, 
 if he committed an assault upon Cox, but had 
 ceased, and was not threatening to renew it at 
 the time he was shot, he was not killed while 
 engaged in a known violation of the law. 
 Glufv. Muiuai Benefit Life Ins. Go., 13 Allen, 
 308. 
 
 5. The deceased was killed while attempt- 
 ing to take properly and hold it for a debt due 
 him by the owner. Held, the material ques- 
 tion to be submitted to the jury, on this point, 
 was, whether he took it with a felonious in- 
 tent, not whether he took it with tlie knowl- 
 edge that he was violating the civil law of the 
 state. Cluffv. Mutual Benefit Life Ins. Co., 99 
 Mass., 317. 
 
 6. Stipulated: "If the said H. shall die in 
 the known violation of any law of this state, 
 then in such case this policy shall be void." 
 H. & W. quarreled. H. drew a pistol and 
 
 ' snapped it at W., who thereupon drew a re- 
 volver and advanced upon him. H. then 
 struck W. with his pistol, and W. shot at H. and 
 missed. H. fled into a store and got behind an 
 " offset " formed by a stairway, picked up a 
 stick of wood and held it in a threatening atti- 
 tude, but did not advance, nor attempt to use 
 it. W. pursued H., fired a second shot and 
 killed him. Held, W. was guilty of a crime, 
 for there was no evidence tending to show that ' 
 
 the killing was in self-defense ; H. had aban- 
 doned tlic conflict, that having the stick of 
 wood in his hand at the time he was slain did 
 not extenuate the guilt of W.; if H. had then 
 killed W. when the latter pursued, he would 
 have been excused by the common law as well 
 as by the statute of Missouri, for his act would 
 have been se defisndendo, hence insurers were 
 liable. Harper c. PTiomix Life Ins. Co., 19 Mo., 
 506 ; Overton v. 8t. Louis Mutual Life Ins. Co., 
 39 id., 123. 
 
 DECK LOADS. 
 
 (See Cabqo; Fouct.) 
 I. When shai.i, not be comtribiited foe. 
 
 II. INSURER IS T.TART.g. -eOR. 
 
 III. NOT LIABLE FOB. 
 
 I. "When shaix not be contributed 
 
 FOE. 
 
 1. Goods on deck are not insured, unless 
 expressly mentioned in the policy. They are 
 not considered as part of the cargo, in which 
 other shippers are interested ; and the owners 
 of cargo under deck ought not therefore to 
 contribute to tlie jettison of goods on deck. 
 Lenox o. United Ins. Co., 3 Johns. C, 178. 
 
 8, On cotton, barratry of the master and 
 mariners being a risk assumed. Ninety bales 
 of cotton were stowed upon deck. Before she 
 sailed, a merchant in Charleston, one of the 
 agents of the vessel, observed where the cotton 
 was being stowed, opposed it, and insisted 
 that it should be sent by another vessel, and 
 not stowed on deck. He advised the master 
 of the responsibility; told him that as he had 
 signed clean bills of lading, he was bound 
 to cai-ry it under deck, or provide extra insur- 
 ance for it if he carried it on deck; that the 
 insurance made on a clean bill of lading would 
 not cover it on deck. Notwithstanding these 
 remonstrances, the captain persisted, and tliis 
 cotton was jettisoned on the voyage. Edd, 
 the act of the master was not barratrous; nor 
 was the cotton protected by the policy, be- 
 cause it did not appear that it was the custom 
 to carry such goods on deck, or that they were 
 so carried with the consent of the insurer, 
 hence there could be no contribution for it in 
 
 197 
 
395 
 
 DECK LOADS. 
 
 396 
 
 When insurer is liable for — When insurer is not liable for. 
 
 general average, and tlie shipper's remedy was 
 against the master or his principal. Atkinson 
 v. Cheat Western Ins. Co., 4 Daly, 1. 
 
 II. "When insubee is liable foe. 
 
 1. Insurer of cargo is liable for a loss of 
 bides from the deck of a lighter used to send 
 the cargo from the ship at quarantine to the 
 depot at Brooklyn, where, by the usual course 
 of trade, goods were thus transhipped for the 
 purpose of landing. Wadsworth v. Pacific 
 Ins. Co., 4 Wend., 34. 
 
 2. On goods, in general terms, does not in- 
 clude property laden on deck ; to cover them 
 the risk must be" expressly taken. Taunton 
 Copper Co. v. Merchants Ins. Co., 22 Pick., 108. 
 But if the policy is on property specifically 
 named, which is usually carried on deck for 
 its own safety and the safety of the ship, the 
 insurer is presumed to know that it is carried 
 on deck; and it will be presumed that the 
 parties intended to insure it as on deck. Ibid. 
 But that usage must be settled in the trade to 
 which the policy relates, and not contrary to 
 any principle of law, nor inconsistent with 
 the terms of the policy. And to make the 
 usage effectual against the insurer, it is not 
 enough to prove the usage to carry such goods 
 on deck ; but to establish the intention of the 
 insurer to take the particular risk, the insured 
 must go further, and prove that insurers have 
 paid losses on such goods carried on deck, and 
 insured under a general policy. Ihid. 
 
 3. On tallow oil, from Cincinnati to Balti- 
 more, thence by vessel to New York. It was 
 stowed on the deck of a steamer at Baltimore 
 bound for New York, and was on the voyage 
 necessarily jettisoned. The court found 
 specially that it was stowed on deck in ac- 
 cordance with a usage of long standing. Held, 
 the loss was covered by the policy. M&rchants 
 & Manufacturers Ins. Co. v. Shillito, 15 Ohio 
 St., 559. 
 
 4. Action upon a parol contract to insure. 
 The defendant proved it was made subject to 
 the terms and conditions of the written poli- 
 cies, which required a special indorsfiment for 
 gooda on deck. The goods lost were stowed 
 on deck. Held, a parol contract is subject to 
 those terms and conditions of the usual policy 
 only so far as in the nature of things they can 
 be applied; hence, it was proper to admit evi- 
 
 198 
 
 dence for the purpose of showing whether it 
 was the intention of both parties that the sub- 
 ject insured should be laden on deck. North- 
 western Iron Go. v. JEtna Ins. Co., 26 Wis., 78. 
 
 5. On 40 carboys of viti-iol on deck. Dur- 
 ing a heavy sea some of them were broken 
 and fire ensued, when the whole were thrown 
 overboard. Held, if there was a usage to carry 
 vitriol on deck, the insurers were bound to 
 take notice of it; if there was not such a usage 
 the insurers were not liable. De Costa v. Ed- 
 munds, 4 Camp., 143; 2 Chitty, 237. 
 
 6. Insured on ship paid a general average 
 for pigs jettisoned which were on deck, and 
 the defendant pleaded that they were deck 
 load for which the other interests were not 
 bound to contribute. Held, the mere fact of 
 stowing them on deck would not relieve the 
 insurer of liability, inasmuch as they may 
 have been placed there in accordance with the 
 usage of the trade, so as not to impede the 
 navigation or in any way increase the risk. 
 MiTmard v. Hihbert. 3 A. & E.{N.S.), 120; 11 
 L. J. (N. S.), Q. B., 137; 6 Jur., 706. 
 
 III. "When imtsueee is not liable foe. 
 
 1. Goods laden on deck are not covered by. 
 a policy on cargo and ft-eight. Wolcott v. 
 Eagle Ins. Co., 4 Pick., 429. 
 
 a. "On freight." EM, it covered only 
 freight on goods which would have been un- 
 der deck, the policy not being valued. Adams 
 ■€. Warren Ins. Co., 22 Pick., 163. 
 
 3. 160 barrels of flour were shipped at 
 Georgetown for Portsmouth, for wjiich the 
 master signed bills of lading in the usual 
 form, by which it appeared that 30 barrels 
 were to go under deck at 35 cents per barrel 
 and 140 on deck at half that price. In com- 
 ing over Nantucket shoal, in bad weather 
 and heavy sea, she struck and was in such 
 danger that to preserve the lives of the crew 
 and for the safety of ship and cargo, the 
 deck load and 30 barrels from the hold were 
 jettisoned, whereby the vessel and the rest of 
 the cargo were saved. Held, it was proper for 
 the defendants to prove the general usage for 
 the owner of goods on deck to bear the whole 
 loss of deck loads necessarily thrown over- 
 board; by the general law jettison from the 
 deck presents no case for contribution, and this 
 has been recognized in New York and Mas- 
 
39T 
 
 DECLARATIONS — DEMTJERER. 
 
 398 
 
 Miscellaneous. 
 
 sachusetts; when the owoer is not liable to 
 contribute, the same reason relieves the insur- 
 rer. Dodge v. Bartol, 5 Me., 286. 
 
 4. " On cargo lost or not lost." It was 
 laden under deck ; but there was other prop- 
 erty laden on deck not insured, which was 
 jettisoned, tor which insured was compelled 
 to contribute in general average. Insured 
 averred that the cargo carried upon deck was 
 there carried in accordance with usage and 
 castom. Insurer replied a usuage and cus- 
 tom not to consider insurer of cargo under 
 deck in any wise liable to make contribution 
 for or on account of deck cargo jettisoned. 
 Insured demurred. Hdd, 'the demurrer must 
 be overruled. Toledo Fire and Marine Ins. 
 Co. V. Speares, 16 Ind., 52. 
 
 5. The policy was made on the written ap- 
 plication of insured, but no mention was 
 made of any of the goods being on deck. 
 There were ninety barrels molasses, four 
 bogheads and one tierce of sugar on deck, 
 which were lost by perils of the sea. Held, 
 that insurers were not liable. Smith v. Mis- 
 sissippi Marine and Fire Ins. Co., 11 La. (O. 
 S.), 142. 
 
 6. Plea: " The goodsjettisoned consisted of 
 timber stowed upon deck; that the contract 
 of Insurance was made at Liverpool ; that ac- 
 cording to a well known and approved usage 
 and custom, insurers were not liable to pay or 
 contribute on account of the jettison of tim- 
 ber stowed upon deck, of which usage and 
 custom the parties at the time of making tlie 
 contract had notice," Held, good pleas ; that it 
 was no answer to them to reply a custom of 
 trade among shippers of timber, to carry tim- 
 ber upon deck. Miller v. Titherington, 7 H. 
 & N., 954 ; 8 Jur. (N. S.), 1039 ; 31 L. J. Ex., 
 363; 10 W. R, 356; 9 L. T. (N. S.), 231. Af- 
 firming 8. c, 6 H. & N., 278; 7 Jur. (N. S.), 
 214; 30 L. J. Ex., 217; 3 L. T. (N. 8.), 893. 
 
 DECLARATIONS. 
 
 (See Evtdince; Plsasino.) 
 
 DELAY. 
 
 (See DZTLA.TIOK.) 
 
 DEMAND. 
 
 1 . Action upon promissory note, payable in 
 such portions and at such times as the directs 
 ors may, agreeably to their charter and by- 
 laws, require. The plaintiff became assignee 
 of the effects of the insolvent company. Held, 
 payable on demand. Held, also, the assign- 
 ment and a demand by the assignee was suf- 
 ficient ground for action. Hill v. Seed, 16 
 Barb., 280. 
 
 2. Exhibiting a bill to a debtor asking him 
 to pay it, and his refusal, are sufficient evi- 
 dence of a demand. People's Mutual Fire 
 Ins. Go. V. Clark, 12 (Jray, 165. 
 
 DEMURRER. 
 
 '(SeeFLBADiNO.) 
 
 1. Every fact which can be legally inferred 
 from the evidence is admitted by a demurrer 
 to it Forbes v. Church, 3 Johns. C, 158. 
 
 2. The court held that the demurrer was 
 put in solely for delay, refused to give leave 
 to answer, and ordered the damages to be as- 
 sessed in the usual manner. Feeny v. People's 
 Fire Ins. Co., 2 Rob. (N. T.), 599. 
 
 3. The court will not, upon motion, decide 
 whether a plea be good or ill, that must be 
 done by demurrer. Wilson v. Lynch, 1 Hud. 
 & B., 836. 
 
 4. The defendant demurred to the declara- 
 tion and filed a plea to it. Hdd, he could 
 not assign error upon the court's failure to 
 sustain his demurrer. Home Mutual Fire 
 Ins. Co. v. Garfield, 60 111., 124. 
 
 B. If the answer sets up a complete defense 
 to the action and the plaintiff demurs, and 
 there is judgment upon the demurrer for the 
 defendant, and the plaintiff refuses to plead 
 over, that is an end of the case. Simeral v. 
 Dubuque Mutual Fire Ins. Co., 18 Iowa., 319. 
 
 6. To the first special plea there was a de- 
 murrer. A second special plea was filed and 
 no replication made to it. The cause pro- 
 ceeded to trial, yerdict and judgment. Held, 
 the demurrer and special pleas must be re- 
 garded as waived by mutual consent. Georgia 
 Home Ins. Co. o. Jones, 49 Miss., 80. 
 
 199 
 
399 
 
 DEPOSIT WITH INSURANCE DEPARTMENT— DEPOSITIONS. 
 
 400 
 
 Miscellaneous. 
 
 DEPOSIT WTTH INSURANCE DEPART- 
 MENT. 
 
 1. Securities deposited by life insurance 
 company with the superintendent of the insur- 
 ance department of the state of New York. 
 Held, a special fund for the security of policy 
 holders primarily; that the superintendent 
 was at liberty to hold the securities and en- 
 force or dispose of them under proceedings 
 authorized by court, and was not bound to 
 pass them over to a receiver appointed for the 
 benefit of general creditors. Buggies v. Chap- 
 man, 1 Hun. (N. T.), 324; 8. c, 2 N. T. S. C, 
 600. 
 
 a. Two classes of insurance are provided for 
 by law. One by unregistered policies pro- 
 tected by a deposit of $100,000 securities in the 
 insurance department, the other by registered 
 policies and annuity bonds secured by an ad- 
 ditional deposit of securities, not less than 
 $25,000. When the company is found to be 
 in a condition unfit for the transaction of busi- 
 ness, the securities for the protection of un- 
 registered policies are to be distributed under 
 a decree of the supreme court. The securities 
 for the protection of the registered policies and 
 annuity bonds are to be sold by the superin- 
 tendent of the insurance department, the pro- 
 ceeds to be paid over to the receiver who is to 
 apply them to the satisfaction of the regis- 
 tered policies and annuity bonds, and the sur- 
 plus, if any, to the debts of the company. The 
 Peo^ V. Chapman, 5 Hun. (N. Y.), 223. 
 
 DEPOSITIONS. 
 
 (See Etidxncb.) 
 
 1. If all the interrogatories are not answered 
 by the witness the deposition cannot be read. 
 Winthrop v. Union Ins. Co., 3 Wash. C. C, 7. 
 
 2. Commission to examine witnesses cannot 
 issue except upon a case pending, and issue 
 joined upon the pleadings. Wood v. Howard 
 Ins. Co., 18 Wend., 646. 
 
 3. A commission to take evidence was 
 awarded after trial and appeal. HM, error. 
 McColl V. Sun, Mut. Ins. Co., 50 N. Y., 333; 44 
 How. Pr., 453; 2 J. & 8p., 310. 
 
 4. One party in his cross interrogatories 
 200 
 
 drew out the declarations of tlio opposite party 
 material to the issues. The answers were re- 
 sponsive to the questions. Held, the opposite 
 party had the right to read the questions and 
 answers as evidence in the cause. Railway 
 Passengers Ass. Co. v. Warner, 1 N. Y. B. C, 21 
 Add. 
 
 5. The president of an insurance company, 
 as such, is bound to answer all questions pro 
 pounded under general statutes (ch. 139, sec 
 46), which are relevant; but he is not bound to 
 answer questions as to facts which he could 
 only state as a witness on the stand, or in a 
 deposition; nor has a party any right to inter- 
 rogate bis adversary but once ; but by a liberal 
 construction of the statute the court may allow 
 interrogatories to be amended or new ones to 
 be filed. Hancock v. Franklin Int. Co., 107 
 Mass., 113. 
 
 6> Where the commission is directed to two 
 persons, either may execute it, and filing cross 
 interrogatories waives notice. American Ins. 
 Co. V. Francia, 9 Penn. St., 390. 
 
 7. A deposition will not be rejected because 
 the witness refers to papers not produced, if it 
 appear they were received long before the 
 deposition was taken, and were of such a char- 
 acter as would not probably be preserved, or 
 were not in the power of the witness or the 
 party. American Life Iris. Co. c. BosenaqU, 
 77 Penn. St., 507. 
 
 8. The authority given to commissioners to 
 take testimony must be strictly pursued, and 
 if the commission is directed to one person 
 and another executes it, the evidence is inad- 
 missible. Maryland In*. Co. v. Bossiere, 9 Gt. 
 & J., 121. 
 
 9. The deposition of a witness was excluded 
 on the groimd that evidence bad not been 
 given to show that due diligence had been 
 used to produce the witness. Held, the ojurt 
 did not err. Flynn v. Merchavis Mut. Ins. Co., 
 17La. An., 135. 
 
 1 U. A party who obtains a commission to 
 take the testimony of witnesses named is not 
 bound to take the testimony of all those named 
 in the commission ; a failure to do so is not 
 a grotmd for excluding the testimony of the 
 witnesses examined. Sramsiein v. Orescent 
 Mut. Ins. Co., 24 La. An., 589. 
 
 11. The deposition was taken in Philadel- 
 phia. The statute required notice to be given 
 of an intention to take, stating the time and 
 place ; and for every twenty miles three days. 
 
401 
 
 DETENTION — DESCRIPTION. 
 
 402 
 
 Miscellaneous. 
 
 and one additional day. The distance, com- 
 puted by the water route, showed that the 
 time was not sufficient; but measured by the 
 usual direct laud routes it was sufficient. The 
 water route was the most usual and expedi- 
 tious. Held, that the notice was sufficient. 
 Lindauerv. Delaware Mutual Safety Ina. Co., 13 
 Ark., 461. 
 
 DETENTION. 
 
 jAbbests; Sbstkaihtb abd Dstahhibhts.) 
 
 DESCENT. 
 
 (See BsquESTS ; WiFB'a PoucT.) 
 
 A married woman made insurance on the 
 life of her husband in her own name and for 
 her own use, payable to her children in case 
 she should die before her husband. Husband, 
 wife and child perished at sea. Held, whether 
 the wife had iiower to make a will -was not a 
 question in the case, for there was no power 
 reserved in the policy authorizing her to dis- 
 pose of the money by will or otherwise ; that 
 the insurance money was the property of the 
 representatives of the husband who were on- 
 titled to his personal estate. 3foehring v. 
 MitcheU, 1 Barb. C, 264; affirmed, How- App. 
 Cas., 502. 
 
 DESCRIPTION. 
 
 (See CoKSTBnonoii; Poliot.) 
 
 1. The holder of a bottomry bond must in- 
 sure it specifically. Kenney v. Clarkson, 1 
 Johns., 385. 
 
 2. The survey made part of the contract, 
 described the premises, and the policy, in 
 terms, warranted tliat description. Held, error 
 to direct the jury to determine whether tlie 
 
 fact that the premises did not correspond with 
 the description was material to the risk. Le 
 Soy V. Market Fire Ins. Go., 39 N. Y., 90. 
 
 3. On merchandise contained in section 
 lettered " C," Patorson stores, South Front, 
 below Pine street, Philadelphia. At the time 
 of issuing the policy, and the time of the fire, 
 the merchandise was in a section of the same 
 building designated by letter "A." Held, in- 
 surers were not liable ; that the maxim falsa 
 demonstratio non nocet could not be invoked 
 unless there was left in the description, after 
 casting out that which was false, enough to 
 clearly point out the place of deposit. Bryce 
 V. Lorillard Fire Ins. Co.,m N. T., 340 ; s. c, 
 3 J. & Sp., 394; 46 How. Pr., 498. 
 
 4. The policy was on a building " Situate 
 at the corner of Charles street and Western 
 avenue. A cabinetmaker's shop is in the 
 building." Held, the words, "A cabinet- 
 maker's shop is in the building," might be 
 rejected, and the policy would attach upon 
 the building the parties intended to insure, 
 though it had no cabinetmaker's shop in it. 
 Heath v. Franklin Ins. Co., 1 Cush., 357. 
 
 5. To L. and S., as mortgagees ; loss pay- 
 able to "W., the plaintiff. They assigned the 
 mortgage and indorsed the notes to him, some 
 of which had matured at the time of the loss, 
 and were unpaid. L. and S., being absolutely 
 liable to pay those which had matured, and 
 liable as indorsers upon those which had not 
 matured, procured this policy : " To be void in 
 case the interest of insured is not truly stated 
 in the policy ; also, if the interest of insured 
 be any other than the entire and uncon- 
 ditional sole ownership, it must be expressed 
 in writing in tie policy, otherwise it shall be 
 void. Held, the interest was sufficiently de- 
 scribed. Williams v. Roger Williams Ins. Co., 
 107 Mass., 377. 
 
 6. Stockholders of a corporation procured 
 insurance " On their private stock, contained 
 in a one story saw mill," etc. They averred 
 that the term, " private stock," meant capital 
 stock of insured in the body corporate. Held, 
 sufficient. Warren v. Davenport Fire Ins. Co., 
 31 Iowa, 464. 
 
 7. " $2,000 on his two-story frame dwelling, 
 occupied by him, situate on southwest corner 
 of Second and Vine streets, Leavenworth, 
 Kansas, and $300 on frame barn in rear of 
 same." The agent of insurer knew the 
 premises for which insured sought insurance ; 
 
 201 
 
403 
 
 DEVIATION. 
 
 404 
 
 What is. 
 
 that they were situated on the southwest cor- 
 ner of Elm and Second streets, and that neither 
 party intended to cover property on the corner 
 of Vine and Second streets. Held, not a case 
 of an entire misdescription, for insured did not 
 occupy the huildings on the corner of Second 
 and Vine streets, and therefore it was unneces- 
 sary to have the instrument reformed, because, 
 if either from the face of the instrument or 
 from extrinsic facts, the true and the false de- 
 scription could be made to appear, that which 
 was false must be rejected (citing 1 Greenl. 
 Ev., sec. 301). Heldr, also, no repugnance ap- 
 peared on the face of the instrument. Apply- 
 plying it to the subject insured, the true and 
 the false description appeared, and that which 
 was false must be rejected (citing Loomis d. 
 Jackson, 19 Johns., 449; 2 Hill on Beal Prop- 
 erty, 358). American Central Ins. Oo. v. Me- 
 Lanathan, 11 Kan., 533. 
 
 8. The premises were described in the pol- 
 icy as " A brick building." One of the walls 
 had previously settled, and was replaced with 
 wood. Insurer's agent had notice of the 
 fact. Beld, no misdescription. Oerhauser v. 
 North British and Mercantile Ins. Co., 7 Nev., 
 174. 
 
 9. On goods in the dwelling-house of the 
 insured. He had but one room, in which he 
 lived. ileM, not a misdescription. Friedlander 
 V. London Ass. Co., 1 M. & Rob., 171. 
 
 10. "Lost or not lost, fiom Montevideo to 
 Havre on £450 freight advanced." She was 
 chartered at the rate of £250 per month from 
 Houtevideo to Havre, freight to be paid at the 
 port of discharge after deducting £250, which 
 it was stated the captain had received on ac- 
 count of that charter partj'. Held, no mis- 
 description of the interest of the insured. Ellis 
 •B. Lafone, 8 Exchr., 546; 17 Jur., 313; 22 L. J. 
 Ex., 124. 
 
 11. The plaintiff s clerk asked defendant's 
 manager to insure hides on board the Socrates. 
 Two ships were named in the register, one 
 name immediately following the other, the 
 first Socrates and the second Socrate. The 
 manager directed the clerk's atttention lo the 
 first, and asked him if tliat was the ship. He 
 replied, he thought so, and the policy was 
 made. The hides were shipped on board 
 the Socrate, and lost. Held, insurers were 
 not liable. lonides v. Pacific Fire and Ma- 
 rine Ins. Co., 6 L. R. Q. B., 674; 35 L. T. (N. 
 S.), 400. 
 
 202 
 
 II. 
 
 DEVIATION. 
 
 (See Babbatbt; Constbuctiok; Poiict.) 
 
 I. What is. 
 
 (a) Capture. 
 
 (b) Change of master. 
 
 (c) Departure from the voyage. 
 
 (d) Delay. 
 
 (e) Making and securing prize. 
 
 (f ) Mismanagement or negligence. 
 
 (g) Obeying orders ship of war. 
 (h) Bexcue. 
 
 (i) To avoid perils not insured. 
 (j) To procure medicines. 
 (k) Toaing. 
 (1) Trading. 
 (m) Transhipment. 
 What is not. 
 
 (a) Attempts to save life. 
 
 (b) Necessary deviation. 
 
 (c) Involuntary deviation. 
 
 (d) Intention to deviate. 
 
 (e) Custom and usage. 
 (f) 
 (g) 
 
 Construction. 
 
 I. What is. 
 
 (a) Captv/re. 
 
 1. She was carried out of her course into a 
 port of the captor. Held, if she remained 
 there longer than was necessary to prepare for 
 her voyage, it was a deviation. Kingston! v. 
 Qirard, 4 Dall., 275. 
 
 2. On ship: "French risks excepted;" she 
 was captured by a French privateer, detained 
 four days, recaptured by a British frigate and 
 condemned as French property. Held, the 
 detention was equivalent to a deviation, which 
 discharged the insurer. Boget v. Thurston, 2 
 Johns. Ca., 248. 
 
 3. Ship insured from port of lading in 
 France to United States. In coming out of 
 Bayonne she struck the bar, and was carried 
 back to repair. Most of the cargo was un- 
 laden and carried by land to passage, in Spain, 
 whither she afterwards went and took it on 
 boai-d and sailed for the United States. Held, 
 not a deviation. Held, also, taking a letter of 
 marque did not avoid the policy; but taking 
 possession of a prize and exchanging the 
 
405 
 
 DEVIATION. 
 
 406 
 
 What is. 
 
 men, was a deviation which discharged the 
 insurer. Wiggin v. Amory, 13 Mass., 118. 
 
 (b) Chanye of master. 
 
 4. Stipulated: "Should the vessel insured 
 change masters or owners, notice shall be 
 given to insurers without delay, when insurers 
 may end the adventure, if they so elect, by 
 returning a pro rata premium." She was sold 
 and the policy transferred to the plaintiffs, 
 with the understanding that Scott, one of the 
 plaintiffs, should take charge of her as master, 
 of which insurer's agent was notified, and he 
 made no objection; but, is consequence of 
 sickness in the family of Scott, another person 
 was put in as master, and she was lost on the 
 first trip. Insurer was not informed of the 
 substitution. Held, it was a change of risk 
 without consent of insurers, analagous to a 
 deviation which discharged insurers. Tennes- 
 see Marine and Fire Ins. Co. v. Scott, 14 Mo., 
 46; Eddy e. Tennessee Marine and Fire Ins. 
 Co., 21 id., 587. 
 
 (c) Departure from voyage. 
 
 5. On schooner, from New Castle, Maine, 
 to her port of discharge in Martinique, at and 
 from thence to her port of discharge in U. S. 
 She sailed on the voyage, but instead of going 
 to Martinique, went to Mariegalaute, where 
 she arrived July 14th, took a cargo and departed 
 upon the home voyage without going to Mar- 
 tinique. She arrived oft" and touched at St 
 Eustatia August nth, and was lost September 
 12th, in Bootli's Bay, while proceeding towards 
 Damariscotta, her port of destination. After 
 it was ascertained that she had touched at St. 
 Eustatia, insurers indorsed : " It is now under- 
 stood that the within insured TC-ssel h.ns been 
 to St. Eustatia, and sailed thence for Boston, 
 about twenty-five days since, which deviation 
 sliall not prejudice the within insurance. 
 B.M, it cured the deviation to St. Eustatia and 
 nothing else. It did not cure the deviation to 
 Mariegalante. The return voyage was from SL 
 Eustatia to Boston, whereas in fact she wi»s lost 
 on a voyage to Damariscotta ; and, the demur- 
 rer to the evidence was sustained. Olidden o. 
 Manufacturers Ins. Co., 1 Sumn., 233. 
 
 6. She was insured " to a port in Cuba, and 
 at and from thence to a port of advice and dis- 
 charge in Europe." She arrived at St. Jago 
 
 de Cuba, discharged her cargo, and sailed 
 thence to Manzanillo, another port in Cuba, 
 where she took cargo and sailed for Europe, 
 and was lost on the voyage. Held, insurers 
 were discharged, because going from St. Jago 
 de Cuba to Manzanillo was a deviation. 
 Heame v. Marine Ins. Co., 20 Wall., 483. 
 
 7. From St. Lucia to New York, with lib- 
 erty to touch and trade at St. Kits. She lost 
 some of her men, took her cargo, and went to 
 St. Bartholomews to get others, and on her re- 
 turn was damaged by collision exceeding fifty 
 per cent, of her value. Held, the deviation 
 was not justifiable, because she ought to have 
 been fitted for the voyage at the time of her 
 departure. Cruder v. Philadelphia Ins. Co., 
 2 Wash. C. C, 339; s. c, id., 262. 
 
 8. From Oorocoke in North Carolina, to St. 
 Bartholomews or St. Thomas, in the West In- 
 dies, and at and from thence to Tobasco. She 
 went to St. Bartholomews and thence to St. 
 Thomas. Held, it was a deviation, unless it 
 was justified by usage; but the usage must be 
 so certain and uniform as to raise the pre- 
 sumption that it was generally known as the 
 law of that trade, JBulhley v. Protection Ins. 
 Co., 2 Paine, 83. 
 
 9. If the insured knows that the master is 
 pursuing a voyage other than that insured, 
 and does not disapprove of it, it is not barra- 
 try but deviation. Thurston t. Columbian Ins. 
 Co., 3 Caines, 89. 
 
 10. On cargo from New York to Madeira, 
 stipulated free from average, etc. Heavy 
 weather prevented her getting into Madeira 
 alter she was in sight of it, nor could she get 
 into Lisbon. The master considered it pru- 
 dent to run for the Cape de Verd islands. 
 At Mogadore she might have obtained pro- 
 visions, but not repairs. Held, evidence of 
 a deviation, for she might have returned to 
 Madeira. There was no adequate or justifia- 
 ble cause for breaking up the voyage. Neil- 
 son V. Columbian Ins. Co., 1 Johns., 301. 
 
 11. Ship insured from New York to Bor- 
 deaux. She was warned by British ships at 
 the mouth of the Garonne not to enter 
 any port subject to French influence, was 
 told to go to England or Malta, or return 
 to America. Being short of water she laid her 
 course for England, but sprung a leak, and 
 was compelled, for her preservation, to put 
 into L'Orient, and was there seized by the 
 French government Held tJie uorts of France 
 
407 
 
 DEVIATIOlf. 
 
 408 
 
 What is. 
 
 ■were not to be considered closed to lier; that 
 "near open port" was to be understood in a 
 geographical sense; that none of the English 
 ports were to be considered in respect to Bor- 
 deaux as a "near port;" tliat her attempt to 
 make an English port was a deviation which 
 released the insurer. Tenet v. Phcenix Im. Go., 
 7 Johns., 363. 
 
 12. On ship from New York to TeneriflFc. 
 For two per cent, additional, she had liberty 
 to go from Tenerlffe to the Isle of May, and 
 Bona Yista, and at and from thence to Kew 
 York. One per cent, to be returned if she did 
 not go to Bona Vista, and the risk should be 
 safely ended. She was refused entry at Tener- 
 iffe, unless she would perform a quarantine of 
 forty days. Refusing that, she proceeded to 
 Madeira, the nearest port at which her cargo 
 could be landed, sold it, proceeded to the Isle 
 of May, took a cargo for New York, and sus- 
 tained sea damage on the home voyage. Meld, 
 going to Madeira was a deviation. Bobertson 
 V. Cohmbian Ins. Co., 8 Johns., 491. 
 
 13. The voyage insured was at and from 
 Port Plata to New York. She was lost in 
 going from Port Plata to Susa, to which 
 place she had a permit from the government 
 to go, to take mahogony, but would have 
 been obliged to return to Port Plata for her 
 clearance. Susa is a bay or open road four 
 leagues east of La Plata, and dangerous when 
 the wind is in a certain direction ; but it was 
 included in the district of Port Plata, which 
 extended one hundred miles along the north 
 coast of Spanish San Domingo. KM, a de- 
 viation which avoided the policy. Yo% «. 
 Robinson, 9 Johns., 193. 
 
 14. Term policy on ship, warranted not to 
 use ports in Texas, except Galveston, nor for- 
 eign ports or places in the Oulf of Mexico. 
 For an additional premium, she had permis- 
 sion to use the port of La Guna for one voy- 
 age. She sailed from Boston, November 9th, 
 to take a cargo of logwood from La Guna to 
 the Mediterranean. She proceeded to Mar- 
 tinique, sailed thence for La Guna, but did 
 not enter, because the custom house officers 
 would not allow her until she had paid her 
 tonnage duties, it not being a port of entry. 
 She sailed thence to Sisal for that purpose, 
 intending to return to La Guna and take the 
 cargo, but was driven ashore at Sisal and lost. 
 Held, going to Sisal was a deviation which 
 released the insurers. Stetms v. GommereicU 
 
 ao4 
 
 Mut. Ins. Co., 26 N. Y., 397; s. c, 6 Duer, 
 594. 
 
 15. On ship, "At and from New York to 
 Havana." She went on a trip to Elizabeth- 
 port, sixteen miles from New York, to test 
 her engines and to take in coal, returned to 
 New York, sailed for Havana, and was burned 
 on the voyage, ffeld, a deviation which re- 
 leased the insurers. Fernandez v. Great WeO- 
 errn Ins. Go. 48 N. Y., 571 ; a. c, 3 Rob., 457. 
 
 1 6. Ship, cargo and freight insured from 
 Boston to tlie Canaries, at and from thence to 
 any port or ports in Spanish America^ and at 
 and from thence to her port of discharge in 
 the United States. She anchored at the Cana- 
 ries, sailed thence to Vera Cruz, landed cargo, 
 took another, with which she sailed for Ha- 
 vana, on which passage she was captured and 
 subsequently condemned. Held, the voyage to 
 Havana was a deviation. Stacker v. ILanris, 3 
 Mass., 409. 
 
 17. On ship, from Gibraltar to United 
 States, with liberty to proceed to Cape de 
 Verd Islands for salt. On her arrival at the 
 Isle of May, many vessels were there, and she 
 must have waited four or five weeks for her 
 turn. On the proposal of the governor, she 
 went to two otlier of the islands, and brought 
 him a cargo of provisions, he engaging that 
 on her return, she should be immediately dis- 
 patched; and by this means she was expe- 
 dited sooner tlian she otherwise would have 
 been. After taking her cargo she was captured 
 and condemned. Held, when she arrived at 
 one of the islands where salt was to have been 
 obtained, she could not proceed thence to an- 
 other for the purpose of earning freight; that 
 doing so was a deviation which avoided the 
 policy. KetUll v. Wiggin, 13 Mass., 68. 
 
 18." From New York to Buenos Ayres and 
 Montevideo, one or both, and thence to ports 
 of discharge in the United States. Liberty to 
 deviate by going to port or ports in Europe, 
 by paying an equitable premium therefor." 
 Hdd, the liberty was to be taken and enjoyed 
 in subordination to the principle that the port 
 or ports she might visit should be only those 
 properly in the course of the voyage described 
 and in pursuance of the general purposes of 
 the adventure, embraced within the termini, 
 designated in the policy (citing Arnorld on 
 Ins., vol. 1, 369-380; Phil, on Ins., vol. 1, § 
 1007 ; Stocker «. Harris, 3 Mass., 409 ; Bottom- 
 ley e. Bovill, 5B.&C.,2]0; Solly «. Whitmore. 
 
409 
 
 DEVIATION. 
 
 410 
 
 What is. 
 
 5 B. & A.., 45; Keltell v. Wiggin, 13 Mass., 68). 
 SeceonU) v. Provincial Ins. Co., 10 Allen, 305. 
 
 19. On freight, Boston to Charleston, S. C, 
 at and from thence to a port on the north side 
 of Cuba, with liberty of a second port tliereon, 
 and at and from thence to a port of discharge 
 in the United States north of Hatteras. She 
 arrived at flarana, sailed thence for Cien- 
 ftiegos, took a cargo and sailed for Boston and 
 ■was lost. Held, the words, " with liberty of a 
 second port thereon," limited her to a second 
 port on the north side of the island ; and in- 
 surers were discharged when she took a sec- 
 ond port on the south side. Nicholson o. Mer- 
 cantiU Marine Ins. Go., 106 Mass., 399. 
 
 20. If there is a voluntary departure, with- 
 out necessity or reasonable cause, from the 
 regular and usual course of the voyage, the 
 insurers are discharged. Crousillat o. JBaU, 3 
 Teates, 875; 4 Dall., 894. And it is imma- 
 terial that the loss was the consequence of 
 deviation, for the policy ceases when the de- 
 viation begins. Ibid. 
 
 21. "On cargo to Bremen, with liberty to 
 enter a Dutch port when informed on arriving 
 on that coast that it can be done with safety." 
 Off the coast of Holland, she fell in with two 
 Dutch lx>ats, from whom she received infor- 
 mation Uiat Amsterdam was not blockaded, 
 and that she might proceed there free from 
 molestation by British cruisers. She made for 
 the Texel, and when near the first buoy, was 
 captured and subsequently condemned, ffeld, 
 the information did not have any tendency to 
 prove there was safety except from British 
 cruisers, and that the departure from the 
 course to Bremen was a deviation which dis- 
 charged tlie insurers. Duerhagen v. United 
 States Ins. Go., 2 S. & R., 809. 
 
 22. "On ice, Freeport to Nashville, to be 
 brought to Pittsburgh by sweeps, to be towed 
 thence by steamboat." The pilot navigated 
 the boats past Pittsburgh, intending to land 
 three miles below, but not for the purpose of 
 escaping any danger. The cargo was lost be- 
 tween Pittsburgh and the landing. Held, a 
 change of the voyage by insured which released 
 the insurers. Merchants Ins. Co. v. Algeo, 33 
 Penn. St., 330. 
 
 23. On steamer for the term of three 
 months, to be used between Philadelphia and 
 Baltimore, via canal, Chesapeake Bay and ita 
 tributaries; also to use the port of Beaufort 
 and Newbern, through the Chesapeake and 
 
 Albemarle canal. HeM, a voyage from Balti- 
 more to Washington was not authorized, and 
 it released tiie insurers. Dallam v. Insurance 
 Co., 6 Phila., 15. 
 
 84. The mere apprehension of danger does 
 not justify a deviation, it must be founded on 
 reasonable evidence; the peril apprehended 
 must be such that if encountered, loss or seri- 
 ous iiyury would be the necessary conse- 
 quence. Siggin v. Patapsco Ins. Co., 7 H. «fc 
 J., 379. 
 
 25. Term policy upon the schooner " Vo- 
 lant," " trading between New Orleans and any 
 port in the West Indies, United States, or Gulf 
 of Mexico, except Rio Grande or Brazos 
 of San Jago." She sailed from New Orleans 
 to Matanzas, proceeded thence to Savannah, 
 on which voyage she was lost by perils of the 
 sea, within the term mentioned in the policy. 
 Held, the port of New Orleans was one of the 
 termini of the voyages insured, and that a 
 voyage between a port in the West Indies and 
 a port in the United States was not a trading 
 between New Orleans and any port in West 
 Indies, United States, or Quit of Mexico. 
 Lippincott c. Insurance Co., 3 La. (O. S.). 399. 
 
 26. The broker was instructed to insure 
 fourteen hogsheads of tobacco by the Kings- 
 ton from Carron to Hull, with liberty to call 
 as usual. These were written in the broker's 
 books for the perusal of the underwriters ac- 
 cording to the practice at Glasgow; and the 
 insurance was made "beginning the adven- 
 ture on tlie said tobacco at and from the loading 
 thereof on board said Kingston at Carron 
 wharf, and to continue and endure until said 
 Kingston, being allowed liberty to call at 
 Leith, shall arrive at Hull and tliere be safely 
 delivered." The insured did not know that 
 the allowance to call at Leith was substituted 
 in the policy for the more general term " as 
 usual," as mentioned in their instructions to 
 the broker. The premium charged was equal 
 to, if not higher, than that which was usually 
 given for the same voyage in cases where it 
 was understood or expressed in the policy that - 
 the vessel might touch at customary ports. 
 She did not call at Leith, but put into Mor- 
 rison's Haven, and was lost after she left it 
 and had resumed her course to Hull. Intelli- 
 gence of the loss reached insured February 
 14th, when they ascertained for the first time 
 that the policy did not accord with their in- 
 structions; but it appeared that the broker 
 
 205 
 
411 
 
 DEVIATION. 
 
 413 
 
 What is. 
 
 understood that by the term, "touching as 
 usual," was meant a liberty to stop at Leith, 
 and nowhere else. The Lord of the court of 
 session decreed payment of the several suras 
 insured by the underwriters; but the court 
 here reversed that judgment, and ordered that 
 the insured was entitled to a return of the pre- 
 mium and nothing more. Elliott v. Wilson, 4 
 Bro. P. C, 470; s. c, Faculty Dec, 1775 to 
 1777, p. 208. 
 
 27. From London to Trinidad or the Span- 
 ish Mainj with leave to call at all or any of 
 the West India Islands or settlements, Ja- 
 maica and San Domingo excepted. She 
 touched at Demarara and ran down in sight 
 of Tobago, St. Vincent and St. Lucia success- 
 ively, and then touched at Martinique, but 
 finding no marltet there, she sailed for St. 
 Thomas, running by St. Kits at night, and 
 ■was lost the following day. Held, the liberty 
 granted must be confined to any island in the 
 course of the voyage insured; that is, from 
 London to Trinidad, or the Spanish Main. 
 Gairdner v. Senhouae, 3 Taunt., 16. 
 
 28. On money expended for reclaiming ship 
 and cargo valued at the sum thereafter to be 
 declared, loss to be paid in case she does not 
 arrive at Marseilles, without further proof of 
 interest than this policy, warranted free from 
 average and without benefit of salvage. The 
 loss was averred by capture. She was taken 
 by a Spanish privateer, restored, and in a con- 
 dition to pursue her voyage, but was lost on 
 another voyage. Sekl, after she was restored 
 she was bound to proceed on the voyage, and 
 a failure to do so was a deviation, lience the 
 loss was not by capture. Kemp v. Vigne, 1 
 Term, 304. 
 
 29. The voyage described in the policy was 
 from F. to G. and back to L. and 0. She ar- 
 rived at G., took in cargo for L. and C, but 
 without going to L., she put into C. and was 
 there stranded and lost. Held, a deviation. 
 BeatBon v. Hwmorth, 6 Term., 532. 
 
 30. " At and from London to Jamaica." 
 She sailed with directions to touch at Cape 
 St. Nicholas Mole and to laud stores there. 
 The course of the voyage to Jamaica and Cape 
 St. Nicholas Mole was the same up to a cer- 
 tain point, from which there were three 
 coui'ses, one to the southward of San Domingo, 
 another still further south of that, and another 
 to the north of San Domingo. Those to the 
 south of San Domingo were most safe and 
 
 206 
 
 usual, especially in time of peace ; that on the 
 north was the shortest but more difficult navi- 
 gation. She was captured on the north side 
 of S^n Domingo before she turned otf for Cape 
 St. Nicholas Mole. Held, insurer had the 
 right to expect that the most expeditious course 
 would be pursued; the instructions given 
 to the master to call at Cape St. Nicholas 
 Mole took that discretion from him which re- 
 leased the insurers. Middlewood v. Blakeg, 7 
 Term, 162. 
 
 31. She deviated from the voyage insured, 
 which was attributed to the ignorance of the 
 master. Held, insurers were released. Phyn 
 ®. Royal Exchange Ass. Co., 7 Term, 505. 
 
 32. From London to New South Wales, 
 thence to all ports and places in the East . 
 Indies or South America, with liberty on that 
 voyage to sail to, touch and stay at any ports 
 or places whatsoever ; to take in and discharge 
 passengers at all ports and places in the chan- 
 nel, Cork, Maderia, Cape of Good Hope, St. 
 Helena and wheresoever she might proceed 
 to, as well on this as on the other side of the 
 Capes of Good Hope and Horn, and for all 
 purposes whatsoever to trade and sail forwards 
 and backwards and backwards and forwards. 
 She arrived at New South Wales and pror 
 ceeded to New Zealand, intending to return 
 to New South Wales and then to proceed to 
 the East Indies. She arrived at New Zealand, 
 and in working out of the harbor missed stays 
 and was lost. New Zealand was in the course 
 of the voyoge from New South Wales to 
 South America, but not in the course from 
 New South Wales to the East Indies. Held, 
 she was not within the terms of the policy; 
 that in order to bring the loss within the terms 
 of the policy, the ship, at the time of the loss, 
 must have been on a voyage from New South 
 Wales to South America, or from New South 
 Wales to the East Indies, or sailing back- 
 wards and forwards upon some intermediate 
 voyage, with a view and for the purpose of 
 accomplishing avoyage either to South Amer- 
 ica or to the East Indies. Bottomley «. Bovill, 
 5 B. & C, 210 ; 4 L. J. K. B., 237 ; 7 D. & R., 702. 
 
 33. "On goods from London to Revel." 
 She sailed from the Nore under convoy for 
 the Sound ; arrived there and proceeded No- 
 vember 15th towards Revel. Two days after, 
 she learned that an embargo 'had been laid on 
 all British ships in the ports of Russia; in 
 consequence of which she returned to Copen- 
 
413 
 
 DEVIATION. 
 
 414 
 
 What is. 
 
 hagen roads and layoff Gottenburg, a friendly 
 port, for six days. November SOlh she sailed 
 ■with the fleet for England, and was lost. Hdd, 
 falling back for England in the manner she 
 did discharged the insurers. Blaekenhagen v. 
 London Asa. Co., 1 Camp., 454. 
 , 34. She was prevented from entering the 
 port of destination, because it was in the 
 hands of the enemy, and was ordered away 
 without being able to unload any part of her 
 cargo or to make needed repairs. She then 
 made the nearest place of safety, took water 
 and proceeded to a port of discharge, at which 
 place it was ascertained, for the first time, that 
 the cargo was badly damaged by sea water. 
 She encountered very heavy weather before 
 and after she was turned away from the port 
 of destination. Held-, from the moment she 
 put off from the port of destination the in- 
 surers were discharged; and that there was 
 no means of ascertaining whether the damage 
 to the cargo happened before or after the de- 
 viation. Pa/rkin v. Turmo, 3 Camp., 59; 11 
 East, 22. 
 
 35. On goods from London to Bcrbice, the 
 words " at sea " were inserted after the clause, 
 " from the loading thereof aboard the said 
 ship." Liberty was given to join and sail with 
 convoy. When the policy was written, a letter 
 was exhibited to insurers, written by the mas- 
 ter, " at sea, between Barbados and Berbice." 
 She had touched at Madeira, put off, took on 
 cargo there, and sailed ; but, when the policy 
 was made, she was between Berbice and Bar- 
 bados. EM, the policy attached at London, 
 and touching at Madeira was a deviatioa 
 which released the insurers. Redman «. 
 Londm, 3 Camp., 508; s. C, 5 Taunt., 463; 1 
 Mai-sh., 136. 
 
 36. From Para to New York, with leave to 
 call at any of the windward and leeward 
 islands on the passage, to discharge, exchange 
 and take on the whole or any part of any car- 
 go at any ports or places, particularly at all or 
 any of the windward or leeward islands. She 
 arrived at Barbados, where she discharged 
 cargo and took in a quantity of sugar with 
 which she sailed for New York, intending to 
 call at St. Bartholomew and St. Thomas, two 
 of tiie leeward islands. After she passed St. 
 Bartholomew and St. Thomas, she was lost 
 off Savannah. She had called at the two is- 
 lands for the purpose of getting information 
 as to the state of the markets. Held, calling 
 
 at the two islands for the purpose of ascer- 
 taining the state of the markets was a pur- 
 pose entirely unconnected with the voyage, 
 and was therefore a deviation which dis- 
 charged the insurer. Hammond v. Reid, 4 B. 
 & A., 73. 
 
 37. She was insured from Hull to her port 
 or ports of loading in the Baltic and Gulf of 
 Finland, with liberty to proceed to, touch and 
 stay at any port or ports whatsoever for any 
 purpose, particularly at Elsinore. She dis- 
 charged some cargo at Elsinore, also at Dant- 
 zic, and was proceeding to Pillan to deliver 
 the remainder of her cargo, when in sight of 
 the latter place she was lost by perils of the 
 sea. Held, the liberty to toucli at any port, for 
 all purposes, meant purposes connected with 
 the voyage, which was from Hull to a port of 
 lading in the Baltic. If she had gone to 
 Elsinore or Dantzic, to see if she could get a 
 cargo, that would have been a purpose con- 
 nected with the voyage; but she sailed to 
 these ports to deliver cargo, a purpose wholly 
 unconnected with the voyage insured, which 
 was a deviation and avoided the policy. Sol- 
 ly V. Whitmore, 5 B. & A., 45. 
 
 38. On ship at and from her port of lading 
 in North America to Liverpool. She took on 
 part of her cargo at K., New Brunswick, 
 sailed for B., seven miles distant, same bay, 
 completed her cargo, returned to K. for pro- 
 visions, sailed on the voyage and was lost. 
 Neither E. nor K. had a custom house, but 
 were on creeks which opened into the bay. 
 Held, K. was her port of lading; and going to 
 B. was a deviation that avoided the policy. 
 Brown v. Tayleur, 4 A. & E., 241 ; 5 L. J. (N. 
 S.)K. B., 57; 5N. &M.,473. 
 
 39. To ports on the coast of Spain, inclnd- 
 ing Tarragona, but not higher up the Medi'er- 
 r."inean. The master intended to go into Tar- 
 ragona but a current carried her beyond it, in 
 the night, and being ignorant of the coast he 
 mistook Barcelona for Tarragona. She was 
 captured while entering Barcelona, which was 
 then in possession of the French army. Held, 
 a deviation which resulted from the ignorance 
 of the master, which discharged the insurers. 
 Tait V. Levi, 14 East, 481. 
 
 40. From London to Preston. The jury 
 found that she was driven into Liverpool by 
 stress of weather. There was a bill of lading 
 for Liverpool, which stated, that she wa;-. 
 bound for Liverpool; one of the ship's 
 
 207 
 
415 
 
 DEVIATION. 
 
 416 
 
 What is. 
 
 advertising bills directed "Application to be 
 made for freight or passage to D., agent for 
 the Liverpool traders." Held, the case ought 
 to be sent to another jury. Gaiterall v. Taylor, 
 9 L. J. C. P., 205. 
 
 41. From Liverpool to any of the -wind- 
 ward or leeward islands. She arrived at Do- 
 minica, and soon after went to Guadaloupe 
 where she was captured. Held, insurers were 
 released. NieUon v. De La' Cour, 2 Esp., 
 619. 
 
 42. " On hull and machinery, being a rein- 
 surance subject to the same clauses and con- 
 ditions as the original, from Liverpool to 
 Philadelphia and United Kingdom." In- 
 dorsed, " It is hereby agreed to allow the ves- 
 sel to proceed to Baltimore instead of Phila- 
 delphia." At the time she sailed, her destina- 
 tion beyond Baltimore was not fixed. She took 
 a cargo of wheat at Baltimore for Antwerp and 
 sailed, her destination beyond Antwerp not 
 being fixed. January 1st she arrived at Ant- 
 werp; January 2d plaintifis having learned 
 that she had sailed from Baltimore to Ant- 
 werp, procured the policy to be indorsed, 
 " In consideration of an additional premium 
 of f per cent, being paid hereon, and which 
 we acknowledge to have received, it is here- 
 by agreed to allow the vessel to go to Ant- 
 werp." She sailed January 7th from Antwerp 
 for Leith, on which voyage sh<! was totally 
 lost. Held, the agreement to allow the vessel 
 to go to Antwerp gave her the right to go 
 there or to the United Kingdom ; possibly, first 
 to the United Kingdom, and afterwards to 
 Antwerp, but it did not permit her to go to 
 Antwerp and sail thence to the United King- 
 dom, Stone V. Marine Ins. Co., 1 Ex. D., 81. 
 
 (d) Delay. 
 
 43. "With liberty of touching at the Cape 
 de Verd Islands on her outward passage for 
 stock, and to take in water." She arrived at 
 the island of Pogo May 7th, and took in four 
 bullocks and four jackasses, water and other 
 provisions. Master unstowed the dry goods 
 and broke open two bales and took out forty 
 pieces from each for trade. She remained 
 there till May 24th. The court instructed the 
 jury that taking in the jackasses did not 
 avoid the policy, unless the risk was thereby 
 increased. Held, error, because the insurers' 
 liability did not depend upon any supposed 
 
 20S 
 
 ■ increase of risk, but wholly on a departure 
 from the voyage; the consequence of a de- 
 parture was immaterial, because the depart- 
 ure of itself discharged insurers ; that neces- 
 sity alone sanctions deviation but the devia- 
 tion must be strictly commensurate with the 
 via major which is the cause of it. Maryland 
 Ins. Go. V. LeBoy, 7 Cranch, 26. 
 
 44. " At and from Baltimore to Barcelona 
 and at and from Barcelona back to Balti- 
 more." She arrived at Barcelona July 25th, 
 remained there forty days at quarantine, went 
 up to the city aud remained there until Jan- 
 uary 8th, following. She then proceeded to 
 Salou for the principal part of her cargo 
 which she took, and sailed for Baltimore, but 
 was lost on the voyage. Her delay was caused 
 by the master's apprehension of danger in re- 
 spect to the dispute between Great Britain 
 and the United States about the Chesapeake 
 frigate. Held, insurers were discharged, be- 
 cause it appeared from the evidence that after 
 all fear from British cruisers had ceased Nov- 
 ember 28th, she was ready for sea and cleared 
 for Salou December 1st, but when in the act of 
 sailing, information was given that the Al- 
 gerine cruisers were out capturing American 
 vessels, the master was therefore advised to re- 
 main in port awaiting other intelligence, and 
 did not sail for Salou till January 8, which 
 was an insuflScient excuse for the delay. 
 Oliver v. Maryland Ins. Co., 7 Cranch, 487. 
 
 45. She was permitted to go to Coro in addi- 
 tion to the voyage insured ; but before arrival 
 at Coro, she put into Aruba and waited there 
 eight days to take a supercargo. Held, the 
 insurers were released. Martin «. Delaware 
 Ins. Oo., 2 Wash. C. C, 254. 
 
 46. On steamboat, her tackle, etc., at and 
 from Philadelphia to New York, with liberty 
 to touch and stay at any ports and places if 
 thereunto obliged by stress of weather or 
 other unavoidable accident. She stopped at 
 Chester, an interjacent port, to repair a defect 
 in the steam chimney which existed and vvas 
 known to her owners prior to her departure 
 from Philadelphia, and was there consumed 
 by fire. Held, insurers were discharged, for 
 she had not the right to touch and stay at 
 Chester, except compelled by stress of 
 weather or other unavoidable accident. The 
 purpose for which she stopped was not ren- 
 dered necessary by anything that occurred 
 after the commencement of the voyage or by 
 
417 
 
 DEVIATION. 
 
 418 
 
 What is. 
 
 any of the perils insored against Audenr^ 
 r. MertMtiSe Mut. Int. Co., 60 :N^. Y.. 483. 
 
 47. On a royage from St Louis to Jfew 
 Orleans. She stopped for twentf-foor hours 
 to transfer cargo from another steamboat, 
 aground in the Mississippi, to the shore. 
 HM, a deviation -vrhich released the insurers. 
 Utttte c Sf. LotUt Perpetual In*. Ge., T Ho., 
 ST9. 
 
 48. "Where the policy attaches at the port 
 of lading, and she does not sail for nearly 
 four months afterwards. Btid, the delay, un- 
 accounted for, discharged the insurer. Paimer 
 t. JTanJiaU, $ Bing., 79; 1 L. J. (X. S.X C. P^ 
 19; 8 Bing., 317. 
 
 49. On freight at and Crom Singapore and 
 BataTia, both or either to her port of discharge 
 in Europe, with liberty to sail to, touch and 
 stay, etc She sailed from London in Sep- 
 tember, 1833, was detained by the master, for 
 his own purposes, at Van Diemens Land, did 
 not arrive at Singapore till March 30, 1S35, 
 and sailed thence, on the voyage insured. 
 Hay 3d. S^ the insurer w^as discharged. 
 Movitt e. XarAaiw, S Bing., lOS ; 1 L. J. (N. &) 
 C. P., 20. 
 
 50. On a yacht, subscribed January SSth. 
 She was not fitted out till Hay following, and 
 did not sail till the 17th. Hdd, the insurers 
 were discharged. Palnwr r. Fmniag, 9 Bing., 
 460; 2 M. & Scott, 624. 
 
 51. Admitting that necessity compels the 
 substitnion of a voyage for that insured, it is, 
 nevertheless, incumbent on the insured to 
 pursue the voyage of necessity directly, in the 
 shortest and most expeditious manner; and, 
 in this case there was a failure so to do, which 
 avoided the policy. Larabre b-WUmk, 1 Doug., 
 284. 
 
 52. She was insured from coast of Africa 
 to West Indies, with liberty to exchange goods 
 and slaves. She stayed at the coast of Africa 
 for several months as a receiving ship for slaves 
 which were afterwards traasfened tu other 
 ships for the West Indies. She stayed there 
 seven months beyond the usual time of vessels 
 engaged in that trade. Hdd, a deviation. 
 HartJfy •. Bugjiit, 3 Dong., 39. 
 
 53. " At and from Liverpool to west coast 
 of Africiv during her stay and trade there, 
 and back to a port in the Fnited Kingdom, 
 she being held covered at ISs. 4d. per cent 
 per month, if longer than twelve months out" 
 She sailed in July, 1869, and arrived out in 
 
 14 
 
 September following. She took cargo and 
 left, taking in more cargo at different places. 
 She was at Gabenda, an open roadstead, with 
 hatches battened ready to sail, November 24, 
 1869. On the 33th, the Robert Jones struck on 
 the rocks and was got off, but sunk a short 
 distance from the ship insured. Her cargo 
 was purchased by the plaintiffs, and saved by 
 the crew of ship insured, for which purpose, 
 and no other, the ship insured was detained. 
 Held, a deviation, because the delay was not 
 for any of the purposes of the voyage. Gom- 
 paujf of African Merchants v. Pritiah and 
 Foreign Marine Ina. Go., 8 L. R Ex., 154; 43 
 L. J. Ex., 60; 21 W. K, 484. 
 
 54. At and from Montreal to Monte Video. 
 Effected July 13th. She did not arrive at 
 Montreal till August 30th. No question was 
 asked by the underwriter where the ship then 
 was, nor was information offered by the in- 
 sured on that subject when the policy was 
 made. Held, there is an implied understand- 
 ing that the risk was to commence in a reason- 
 able time, unless the policy contained express 
 provision on the subject, hence, insurers were 
 discharged. J)e Woffie v. Archangel Mctritime 
 Pank and Ins. Co., 9 L. R Q. B., 451; 43 L. J. 
 Q.B.,U7; 23W.R,801. 
 
 55. On ship and cargo. At and from 
 GtK>rgia to Jamaica, and until moored twenty- 
 four hours in safety. Held, a stay at Mon- 
 tego Bay for nearly a month discharged the 
 insurers. ZagA e. Mather, 1 Esp., 413. 
 
 56. With liberty to touch and stay at any 
 port on her passage. She was driven by stress 
 of weather to Dublin, where, she remained ten 
 days, and while there broke bulk. JBis^ in- 
 surers were released. Stitt t. WardeU, 3 Esp., 
 610. 
 
 57. From Guernsey to Gibraltar, with liberty 
 to discharge goods at Lisbon. She discharged 
 part cargo at Lisbon, and took other in its 
 place. Held, liberty to discharge gave her no 
 right to take any cargo. Sheriff o. Pottt, 5 
 Esp., 96. 
 
 58. At and from Liverpool to any port or 
 ports, place or places of loading and trade, on 
 the coast of Africa and African islands, dur- 
 ing her stay and trade there, and at and from 
 thence to her port or ports of discharge in the 
 United Kingdom, backwards and forwards, and 
 forwards and backwards, with liberty in that 
 voyage, to proceed, sail to, and stay, at any 
 ports or places whatsoever; and with liberty 
 
 S09 
 
419 
 
 DEVIATION. 
 
 420 
 
 What is. 
 
 to tranship on board any vessel or craft, and 
 to be used as a tender in any other ship or 
 vessel in the same employ. She arrived at 
 Benin, stayed there thirteen months, taking 
 goods from a vessel in the same employ, at 
 the mouth of the river to Camaroones, and 
 putting them on board another vessel in the 
 same employ. She took cargo and was lost 
 on the home voyage. Held, she was not 
 acting as ship's tender; that her employ- 
 ment amounted to a deviation. Hamilton n. 
 Bheddon, 3 Mee. & W., 49; 7 L. J. (N. S.) 
 Ex., 1. 
 
 (e) Making cmd securing prise. 
 
 59. Ship captured, carried to Halifas, 
 libeled and condemed as prize. Before she 
 sailed on her homeward voyage, the master 
 applied for, and obtained from the American 
 minister, a commission and letter of marque, 
 and increased his armament from four to four- 
 teen guns, and his crew from thirty to seventy 
 men. The consignees, as well as the super- 
 cargo, were consulted as to all the proceedings 
 and they advised the taking of the commis- 
 sion, which was for defense only. About 
 three or four days from France, a brig was 
 seen standing for the ship insured. Slie was 
 taken possession of by the ship insured and 
 sent into France, where she was condemned. 
 The time consumed in taking and manning 
 the brig was about two or three hours. Held, 
 a deviation. Held, alio, the acts of the master 
 were not barratrous, and insurers were dis- 
 charged. Wiggin v. Amory, 14 Mass., 1. 
 
 60. On ship to Fayal and return to Phila- 
 delphia. She arrived at Fayal, and sailed in 
 pursuit of the sloop Fly, with which the mas- 
 ter and her mariners had fled. She was to 
 receive £100 sterling in case the sloop was 
 recaptured, tlie money to be for the joint ben- 
 efit of the master and his owners. Held, 
 though the master stipulated to receive a part 
 of the compensation which must have de- 
 pended on the pleasure of his owners, there 
 was not any fraud or criminal conduct in the 
 transaction ; hence, his conduct was not barra- 
 trous, but a deviation, which discharged the 
 insurer. Hood ». Neeibitt, 1 Teates, 114; 2 
 Ball., 137. 
 
 61. On a fishing voyage, with liberty to 
 chase, capture and man any prize or prizes. 
 She was fitted out as a whaler, with thirty-two 
 
 210 
 
 guns and ninety-six men. Off St. Bias, a brig 
 was observed taking in cargo, to sail in a few- 
 days. The ship insured hauled off to the 
 Maria Islands, about fifty-five miles north, 
 west of the bay, where she lay off and on for 
 nine days. After the vessel had finished her 
 loading and put to sea, they took her as prize 
 to Port Jackson. Held, the plaintiff must 
 suffer a nonsuit, though she lay, while waiting 
 for the prize to come out, within the limits of 
 her fishing ground. Hibbert v. EaUidAiy, 2 
 Taunt., 438. 
 
 62. She took a letter of marque, and was 
 afterwards captured. Meld, the insurers were 
 discharged. Denison «. Modigliani, 5 Term, 
 580. 
 
 6.S. " On ship on a fishing voyage, with 
 leave to cruise for, chase, capture, man, and 
 see into port any ship or ships of tie ene- 
 mies," etc. After she left Rio, in the begin- 
 ning of August, she captured a merchant 
 vessel, which was very leaky, and took her to 
 St. Catherines and remained there a month, 
 took the cargo out, reloaded it, and repaired 
 the prize, and remained with her while all 
 this was being done. Held, a deviation. Jar- 
 ratt V. Ward, 1 Camp., 363. 
 
 64. On ship "With or without letters of 
 marque, valued at £6,000, and on slaves and 
 goods, as interest may appear, at and from 
 Liverpool to the coast of Africa, during her 
 stay and trade there, at and from thence to her 
 port or ports of sale, discharge, and final des- 
 tination in the British and foreign West In- 
 dies and America, with leave to chase, capture 
 and man prizes." Held, liberty to chase, cap- 
 ture and man, cannot be extended beyond what 
 was necessary for those acts ; that convoying 
 the prize afterwards did not arise out of that 
 liberty; that slackening of sail for the purpose 
 of convoying the prize was a deviation which 
 annulled the policy. Lawrence v. Sydebotham, 
 6 East, 45; 2 Smith, 214. 
 
 (f) MismMnagement or negligence. 
 
 65. On cargo on board a flatboat. A col- 
 lision occurred between a steamboat and 
 the fiatboat, which caused her to leak. The 
 master made her fast to the side of a steam- 
 boat, and she was towed along until she sank 
 and the cargo was totally lost. Held, prose- 
 cuting the balance of the voyage between 
 Vicksburg and New Orleans, after the injury 
 
421 
 
 DEVIATION, 
 
 422 
 
 What is. 
 
 occurred, was a deviation. Steteart v. Tennes- 
 see Marine and Fire Int. Co., 1 Humph., 342. 
 
 66. On cargo, laden upon a steamboat, from 
 Grand Gulf, Miss., to New Orleans, La. She 
 took a brig in tow at Natchez, made fast to 
 her starboard side ; was compelled to stop, be- 
 cause the weather was such she could not 
 make headway with the brig. Wliile under 
 way with her, in a heavy gale and chopping 
 sea, steamer commenced leaking and filled 
 very rapidly; in consequence, she was run 
 ashore. Hdd, a deviation which discharged 
 insurers and rendered the carrier liable to the 
 shipper. Natcheelns. Co. v., Stanton, 10 Miss., 
 340. 
 
 (g) Obeyvwy orders, ship of war. 
 
 67. While she was taking in her cargo, a 
 ship of war ordered her to sea to examine a 
 strange sail in the oflSng, bearing enemies' 
 colors, which order she obeyed without force, 
 threats or remonstrance, and returned to port. 
 Held, if a degree of irresistible force had been 
 exercised, or which the master, as a good sub- 
 ject, should not have resisted, the deviation 
 would have been excused; but, in the absence 
 of all such evidence, insurers were released. 
 PMpa V. Auldjo, 2 Camp., 350. 
 
 (h) MeSGiie. 
 
 68. On ship and freight from New London 
 to Martinico, and at and from thence \o a port 
 of discharge in the United States. She loaded 
 at Martinico, sailed for United States, was 
 captured by a British ship of war a prize mas- 
 ter was put on board, from whom she was 
 rescued by her master and crew ; but she was 
 aiterwards retaken by another British vessel 
 and carried to Gibraltar, libeled and con- 
 demned as a prize. Held, the crew of a neu- 
 tral vessel cannot determine for themselves 
 that an arrest made by a belligerent is without 
 color of right. The neutral must submit and 
 rely upon the justice of the tribunals of the 
 belligerent nation to restore him to his rights. 
 Hdd, also, a rescue of a neutral vessel detained 
 by a belligerent for an alleged violation of 
 neutrality is a good cause of condemnation, 
 and that a loss from this cause is not within 
 this policy. Itobimon v. Jones, 8 Mass., 586. 
 
 (i) To avoid perils not vnsv/red. 
 
 69. From Liverpool to Savannah. She ar- 
 rived off Savannah and put away for Amelia 
 Island to avoid seizure under the npnimporta- 
 tion law of the United States. Held, a devia- 
 tion to avoid a peril not insured against. 
 Breed o. Baton, 10 Mass., 23. 
 
 70. "Warranted against any capture after 
 December 1st." Held, putting into a foreign 
 port to avoid the consequences of too late an 
 arrival in the United States was a deviation. 
 Murden v. South Carolina Ins. Co., 1 Mills 
 Const., 96. 
 
 (j) To froov/re medicmes. 
 
 71. She put into Plymouth, out of the regu- 
 lar coui'se of the voyage, for the purpose of 
 getting medical assistance for the master and 
 mate ; but it also appeared that the ship's sur- 
 geon was not provided with proper instru- 
 ments and medicines. Held, the deviation 
 was not justified. Woolf v. Claggett, 3 Esp., 
 257. 
 
 (k) Towing. 
 
 72. On steamboat for six months, with lib- 
 erty to navigate the Mississippi and such trib- 
 utaries as are suitable to her class. At Natchez, 
 she took the brig Augusta in tow, bound for 
 New Orleans. At Fort Adams, she completed 
 her loading; the brig took some cargo, and 
 she again took the brig in tow, made fast to 
 her starbo.ird side. Encountered heavy weath- 
 er, and both steamer and brig pitched and 
 sti-ained excessively; she commenced filling 
 very rapidly. She was grounded to prevent 
 sinking, and was afterwards abandoned. Held, 
 the business of towing ships is entirely sepiu 
 rate and distinct from all things connected 
 with or incidental to the navigation of the 
 river by steamboats, or the transportation of 
 freight and passengers ; insured could not be 
 permitted to subject insurer to risks not as- 
 sumed in his contract, hence insurers were 
 discharged. Herman v. Western Marine and 
 Fire Ins. Co., 13 La (O. S.), 516. 
 
 (1) Trading. 
 
 73. Liberty to touch at a place gives no 
 
 211 
 
423 
 
 DEVIATION. 
 
 424 
 
 What is not. 
 
 right to trade there, and trading is a deviation. 
 United States «. The Paul Sharman, Pet. C. 
 a, 91 
 
 74. On ship from Liverpool to the coast of 
 Africa and the African Islands, during her 
 stay and trade there, thence to Liverpool, with 
 liberty to exchange goods with other ships. 
 It was represented "That we purchase no 
 slaves, nor does the ship go to the West Indies ; 
 we barter the produce and manufacture of this 
 country for the produce of Africa, dye woods, 
 etc." She took in a quantity of barwood and 
 ivory at Gaboon, with which she proceeded to 
 Callibar, where she met the George, into 
 which she put all her ivory and spare bar- 
 wood, and received from the George all that 
 then remained of her outward cago, the inten- 
 tion being to exert both ships to dispatch the 
 George with a full cargo before the ship in- 
 sured began to trade on her own account. 
 The fact of mutttal or combined trading was 
 not communicated to the insurers. Held, it 
 was a deviation which avoided the contract. 
 Tennant v. Hendenon, 1 Dow, 324. 
 
 75. At and from London to Berbice, " With 
 liberty to touch and stay at any ports and 
 places whatsoever and wheresoever, for all 
 purposns whatsoever." She sailed with a fleet 
 under convoy, arrived off Madeira, began to 
 land the goods which she had for that place. 
 The convoy sailed without her and she was 
 captured. Held, the liberty in the policy must 
 be construed in reference to the main scope 
 of the voyage insured, and putting into Ma- 
 deira and staying there, for the purposes of 
 trade, was a deviation. Williams v. Shee, 3 
 
 »_ Camp., 469. 
 
 76. On ship at and from Liverpool to the 
 coast of Africa and the African islands, and 
 thence back to Liverpool, with liberty to ex- 
 change goods with other ships and to proceed 
 and sail, to touch and stay at any ports what- 
 soever and wheresoever, without being deemed 
 a deviation. She traded with another ship 
 and they acted as mutual tenders to each 
 other. Held, the policy was vitiated, for it 
 did not allow trade and niuttial tender. Hen- 
 derson V. FeUers, Faculty Dec, 1810 to 1813 
 p. 518. 
 
 (m) Transhipment. 
 
 77. On merchandise from St. Louis to 
 Council Bluffs. In endeavoring to round a 
 
 213 
 
 point above St. Josephs, she was canght in an 
 eddy, forced towards the river bank, her cabin 
 broken, her chimneys came in contact with a 
 tree and were broken off; one of them entire- 
 ]y lost. She could not then make steam 
 enough to proceed with the cai;go and was 
 obliged to return to St. Josephs where there 
 was ample storage room for the cargo. It 
 would have taken twelve days to have made 
 the trip to St. Louis, make repairs and return 
 to St. Josephs, or to have procured the chim- 
 neys from St. Louis and put them on at St. 
 Josephs. She contracted with another steamer 
 to carry the goods forward, transhipped them, 
 and this latter vessel was, by a peril of the 
 river, sunk, so that a part of the goods insured 
 were lost. Held, the detention necessary to 
 make repairs would not have been sufficient 
 to break up the voyage, so as to make it the 
 master's duty to tranship; the first boat was 
 not justified in putting the goods into another 
 bottom ; hence the transhipment was made at 
 the risk of the carrier and therefore released 
 the insurers. Salisbury v. St. Louis Ma/rint 
 Ins: Co., 23 Mo.. 553. 
 
 78. " On goods from Liverpool to any port, 
 ports or places on the Canton river on the 
 coast of China or islands adjacent, inclusive 
 of Manilla, with liberty to wait at any port or 
 place until the intended port or place of dis- 
 charge can be entered, including risk of craft 
 until she shall arrive at her final port or place 
 of discharge, and until the same be there dis' 
 charged and safely landed with liberty," etc. 
 The whole of the goods, except four bales, 
 were franshipped to the James Lang at Hong 
 Kong. Held, there was no authority for tran- 
 shipping the goods, because the vessel in 
 which they were insured was still seawortliy 
 at Hong Kong; and as there was no intention 
 to return them to the ship in which they were 
 insured, that was a departure from the pur- 
 pose of the voyage which released the in- 
 surers. Bold v. Rotheram, 8 Q. B., 797; 15 L. 
 J. Q. B., 274; lOJur.,878. 
 
 II. "What is not. 
 
 (a) Of attempts to save Ufe. 
 
 1. If the object of the deviation be to save 
 the life of man, the humanity of the motive 
 and the morality of the act give it a strong 
 claim to indulgence ; but, after that object is 
 
425 
 
 DEVIATION. 
 
 426 
 
 What is not. 
 
 efifected, if the delay be continued or the risk 
 increased by adding to the cargo or diminish- 
 ing the crew, or by any other means, for the 
 purpose of saving property, it is a deviation 
 and the insurers are discharged. Bond «. Brig 
 Cora, a Wash. C. C, 80. 
 
 2. A delay to save the crew of a wrecked 
 and sinking ship, whose lives are in jeopardy, 
 is not a deviation. TItf Botton, 1 Sumn., 338 ; 
 Tlie Henry JEtcbank, id., 400. 
 
 3. She was passing by Gibraltar when the 
 captain's wife was on deck to look at the rock, 
 turning to go down into the cabin, she missed 
 lier footing and fell a distance of six feet 
 She was in the third montlv of pregnancy. 
 The vessel was brought to anchor, a boat sent 
 asliore for a physician, and the vessel re- 
 mained there eleven days. While she so re- 
 mained, some little cargo was taken in. Held, 
 where the olyect of the departure from the 
 course is to carry relief to mariners or pas- 
 sengers destitute or suffering on board other 
 vessels, it is justifiable ; the rule is not confined 
 to such cases, and it can make no difference 
 whether the object of the departure is to alle- 
 viate the distress and administer to the ne- 
 cessities of persons lawfully on board, or 
 strangers suffering from disasters sustained 
 by the loss or wreck of another vessel, for the 
 dictates of humanity are as forcible in the one 
 as in the other case, and it would be strange 
 if the law recognized any discrimination be- 
 tween them. Perking c. Augusta Insurance 
 and Banking Co., 10 Gray, 312. 
 
 (b) Of necessary deviation. 
 
 4. She put into Havana, having run short 
 of water. Held, it would not be a deviation 
 if the want of water fairly existed, and a suf- 
 ficient quantity for the ordinary voyage had 
 been taken at the port of departure. Wood «. 
 PUasanU, 3 Wash. C. C, 201. 
 
 ^ 5. On goods at and from Guadaloupe to a 
 port in France, on the Atlantic. Instead of 
 going direct she stopped at Santos, which was 
 proved to be the safest and most usual route 
 in time of war. Hdd, if she went there with 
 an honest intention to avoid British cruisers 
 
 ; and remained no longer than was necessary, 
 the deviation was excused. Ooyon c. Pleat- 
 ants, 3 Wash. C. C, 241. 
 
 6. At and from New York, with liberty to 
 touch at two ports on the north side of Cuba; 
 
 the adventure to continue till the goods are 
 safely landed at Barracoa. She remained 
 there from June 26th till October 30th, without 
 being able to sell the whole cargo. Held, the 
 stay did not amount to a deviation. Oilvert v. 
 Hallet, 2 Johns. C, 297. 
 
 7. Surinam to New York. The master do- 
 termined to take the leeward passage, touched 
 at Demerara to get the protection of a British 
 convoy then about to sail. After coming to 
 anchor, a gale of wind drove him to sea. He 
 continued on the voyage without convoy, and 
 was. captured by a French privateer. Held, 
 no deviation, because it appeared he acted 
 bona fide to avoid French privateers cruising 
 in the windward passage. Patrick v. Ludlow, 
 3 Johns. Ch., 10. 
 
 8. "On ship, against sea risks only, from 
 New Orleans to Cape St. Nicholas Mole, 
 thence to Port Republican, Cape St. Francois, 
 or SL Thomas." She met with heavy weather 
 and commenced leaking; when within seventy 
 miles of the Mole, in sight of it, a British 
 cruiser turned her away because it was block> 
 aded. She then made for St. Thomas, but 
 stress of weather drove her to Jamaica, where 
 she was condemned as not wortb repairing. 
 Held, necessity excused the deviation; that 
 insurers were liable. Bobinson v. Marine Ins. 
 Co., 2 Johns., 89. 
 
 9. The master took the Sound instead of the 
 Narrows to the Hook, the latter being the 
 least dangerous and most usual route. HeH, 
 not a deviation, because there were several 
 British ships off Sandy Hook, and there was 
 much apprehension of danger from them; to 
 avoid them was a prudent exercise of discre- 
 tion. Beede «. Commercial Ins. Co., 3 Johns., 
 353. 
 
 10. Several policies on the Radius and her 
 cargo from New York to St Sebastian or Pas- 
 sage ; if turned off, or the captain thinks it 
 prudent not to enter, liberty to proceed to 
 Tonningen: "Warranted American, and not 
 to abandon, if detained or captured, till six 
 months after notice, unless previously con- 
 demned, nor if refused admittance or turned 
 away, but may proceed to any other near open 
 port." She was pursued by a British cruiser, 
 and for the purpose of evading her, she at- 
 tempted to fetch San Antonio ; but on account 
 of the wind and tide she failed, and came to 
 anchor about half a league off San AntDnio ; 
 St Sebastian being about twenty leagues 
 
 213 
 
427 
 
 DEVIATION. 
 
 428 
 
 What is not. 
 
 further. She was seized by the authorities of 
 the port, who took out her cargo and never 
 restored it ; and she remained there until the 
 place was taken by the Bnglish and Spanish 
 forces. The vessel was taken by an English 
 frigate to Corrunna as prize of war. Held, go- 
 ing to San Antonio was not deviation under 
 the circumstances. Post t. Phmnix Ins. Co., 
 10 Johns., 80. 
 
 1 1. On cargo, from Carlsham to St. Peters- 
 burgh. After taking a pilot for St. Peters- 
 burgh, it was thought prudent to get into the 
 Bay of Bevel; but it was found impossible- to 
 do so before night, so she bore away for Port 
 Baltic, oflF which she came to anchor Novem- 
 ber 33d. Upon inquiry, it was found impossi- 
 ble to get into Cronstadt, and she proceeded 
 for Revel, about twenty-five miles distant, and 
 got aground on a shoal off Surp Point, where 
 she filled with water. Held, no deviation, be- 
 cause the master acted hona fide. Q-raham v. 
 Commercial Int. Co., 11 Johns., 353. 
 
 12. Ship sailed November 26, 1802, with 
 Vineyard Pilot. Captain intended to stop at 
 Vineyard to put off his wife and pilot. In- 
 sured knew of the captain's intentions, but 
 insurers did not. There were two routes to 
 the port of destination — South Channel and 
 the Vineyard Sound. The evidence was con- 
 flicting as to which was the usual route. Held, 
 the question of fact to be ascertained was, 
 whether either of the routes had so far ac- 
 quired an ascendency over the other as to ob- 
 tain the character of the usual route ; that the 
 master was bound to pursue the usual route, 
 unless necessity required him to take the other. 
 Braeier v. Clap, 5 Mass., 1. 
 
 13. Imminent danger of capture justifies a 
 delay in sailing; and if viewed as a deviation, 
 is justified, when it is done to avoid a peril in- 
 sured against Whitney b. Haven, 13 Mass., 172. 
 
 14. On goods, from one port to another, 
 with liberty to call at an intermediate port. 
 She discharged her deck load at the interme- 
 diate, and from necessity put into another 
 port, where she took another deck load; 
 neither delay nor change of risk occurred. 
 Held, no deviation. Cftoae v. Eagle Ins. Co., 
 5 Pick., 51. 
 
 15. The master intended to deviate by put- 
 ting into an intermediate port; but the evi- 
 dence showed that necessity was the imme- 
 diate cause of putting in. Held, no deviation. 
 Hoba/rt v. Norton, 8 Pick., 159. ' 
 
 2U 
 
 1 6. If the vessel makes a port of necessity, 
 a voyage thence to a port suitable for making 
 repairs is a voyage of necessity, and is pro- 
 tected by the policy. Hall v. FranMin Ins. 
 Co., 9 Pick., 466. 
 
 1 7. She sailed from Portsmouth in the fore- 
 noon, March 5th, bound to Gruayama. In the 
 evening she encountered strong gales and 
 heavy seas, and about midnight, tacked and 
 ran into Gloucester in distress, aniving there 
 early in the morning of the 6th. Her owners 
 resided at Newburyport, and they ordered her 
 to the latter place, where she arrived in the 
 afternoon of the 7th, and where needful re- 
 pairs were made. Held, the master was not 
 bound to remain at Gloucester to make the 
 needed repairs; if, in the exercise of good 
 judgment, sound discretion, and good faith, 
 he deemed it expedient for the interest of all 
 concerned to go to an adjoining port, where 
 the vessel could be refitted with greater con- 
 venience and less expense, he might do so; 
 but inasmuch as the insurers had paid for 
 those repairs, they were now estopped to say 
 that the vessel had deviated before they were 
 made. Silloway v. Neptune Zn«. Co., 13 
 Gray, 73. 
 
 18. On ship from Philadelphia to Amster- 
 dam, with liberty to proceed to a near port of 
 discharge if she should be turned away. Was 
 boarded by a British cruiser, and ordered not to 
 proceed to any place at war with Great Britain, 
 or which was closed against British ships, hut 
 that she might proceed to Great Britain or 
 Ireland for directions. The master put into 
 Falmouth, and in consequence of head winds, 
 remained there some time, and, hearing of the 
 Milan decree, waited four months for a convoy, 
 and sailed for the Downs, intending to proceed 
 to London or Amsterdam. A gale drove him 
 into the Downs, where she was totally lost. 
 Held, the stay at Falmoutli was justifiable; 
 that his intention to put into the Downs before 
 he left Falmouth was an intention to deviate 
 and not deviation; hence, the insurer was 
 liable. Bnowden v. Phomix Ins. Co., 3 Binn., 
 457. 
 
 19. Where the vessel has a deck load, the 
 master is not bound to sacrifice it before devi- 
 ating for a port of necessity. American Ins. 
 Co. V. Francia, 9 Penn. St., 390. 
 
 20. " On ship and cargo from Baltimore to 
 Portland, Oregon. She was compelled to put 
 into Rio for repairs, where they were made, 
 
429 
 
 DEVIATION. 
 
 430 
 
 What is not. 
 
 and the master, being unable to procure 
 money, executed a bottomry and respondentia 
 bond on ship and cargo, will) interest at fifty- 
 six per cent., conditioned that she should call 
 at San Francisco and pay the bond. She 
 sailed from Rio, encountered a tempest, in 
 ■which she was greatly damaged, and com- 
 pelled to return, where she was condemned 
 and sold. Held, there was no change of ulti- 
 mate destination; hence, the risk continued 
 until an actual departure from the route; 
 therefore, insurers were not released. Winter 
 c. Delaware Mutual Safet;/ Ins. Co., 80 Penn. 
 St., 334. 
 
 2 1. A deviation is a voluntary departure, 
 without necessity or cause, trova the usual 
 course of the voyage ; but the master may de- 
 part from tlie regular and usual course of the 
 voyage to save either ship or cargo from a 
 peril, though it is not insured against, if 
 necessity or reasonable cause impels him so 
 to do. The insurer tacitly assents to all 
 reasonable efforts that the master may make 
 for the property insured, and consequently 
 authorizes the usual means of avoiding urgent 
 danger, whether it be from a peril insured 
 against or not Biggin v. Patapseo Ins. Co., 7 
 H. & J., 279. 
 
 22. "At and from Baltimore to Boston." 
 The cargo was laden November 19th, but she 
 did not sail until December 23d. Held, unless 
 the delay proceeded from causes which justi- 
 fied or excused it, insurers must be discharged. 
 The actual causes of delay were questions of 
 fact for the jury, the legal sufficiency of such 
 causes were to be determined by the court 
 Proceedings in admiralty for the recovery of 
 debts due for repairs would not be a sufficient 
 excuse; but inability to obtain a crew would 
 excuse. Augusta Ins. Go. v. Abbott, 12 Md., 348. 
 
 23. On freight from Havana to St. Peters- 
 burg. She met with rough weather and a 
 heavy, short sea, soon after leaving port, and 
 commenced leaking so badly that it required 
 three thousand strokes of the pump per hour 
 to keep her free. When about twelve days 
 out, the crew represented that they were ex- 
 hausted by their labors at the pump, and re- 
 quired the master to make a port He could 
 have run into Boston, but was afraid that a 
 southwest wind which prevailed would drive 
 the fog into the bay, and he ran into Portland. 
 Held, the master must necessarily be the prin- 
 cipal judge of the degree of peril to which his 
 
 vessel is exposed, and of her ability to proceed 
 to a nearer or more distant port, and of the 
 facilities of repairing her at different ports; 
 that his decisions respecting these matters, 
 made in good faith, must be satisfactory to all 
 interested, although he should err in judg- 
 ment; there was no testimony in the case 
 tending to prove that in selecting Portland as 
 a port of necessity he was acting in bad faith, 
 and therefore the deviation was justified. 
 Turner v. Protection Ins. Co., 25 Me., 515. 
 
 24. She sustained damages during a gale, 
 and it became necessary for her to seek a port 
 of repair out of the voyage Insured. Held, no 
 deviation. Akin v. Mississippi Marine and 
 Fire Ins. Co., 16 Martin (La.), 661. 
 
 25. From New Orleans to Clai-k's Landing 
 on the Rio Brazos. She arrived off the mouth 
 of the river and took a pilots sind under his 
 directions attempted to enter, but grounded, 
 floated off and made considerable water. 
 There was not sufficient depth of water to en- 
 able her to pass the bar. She put into Galves- 
 ton Bay, the neai-est port to her destination. 
 Held, to authorize a deviation there must be a 
 necessity for it; but tliat necessity is not in all 
 cases to be tested by the result; it is sufficient 
 if, under the circumstances of the case, there 
 was justifiable ground for the master to devi- 
 ate. Byrne v. Louisiana State Ins. Co., 19 
 Martin (La.), 126. 
 
 26. She deviated. Held, if it was caused by 
 stress of weather, or unavoidable accidents, or 
 with a view to avoid an enemy, it was no de- 
 fense to the action. Miller v. Bussell, 1 Bay., 309. 
 
 27. Stress of weather drove her from her 
 convoy, and compelled her to bear away for 
 another port She was captured while out of 
 the course to her destined port. Held, no de- 
 fense to the action. Campbell v. Williamson, 2 
 Bay., 237. 
 
 28. If there is danger of proceeding on tho 
 voyage, and the ship needs repairs and goes 
 to the nearest place for them, that is no devia. 
 tion. Motteux ». London Ass. Co., 1 Atk., 545. 
 
 29. A vessel insured may always do what- 
 ever would be expedient if uninsured. What- 
 ever is necessary for the safety of tlie ship may 
 be done, provided it be not excluded by the 
 terms of the policy. D'Aguilar v. Tobin, Holt 
 N. P., 185. 
 
 30. " From Archangel to London." Under 
 stress of weather, and in order to refit, she put 
 back to Archangel. There were other ports 
 
 815 
 
431 
 
 DEVIATION. 
 
 432 
 
 What is not. 
 
 nearer to the place where she received the 
 damage; the jury were of opinion that Arch- 
 angel was the most proper place for making 
 the repairs. Held, no deviation. Morgan v. 
 Omnald, 3 Taunt., 554. 
 
 31. "Warranted free ofcapture and seizure, 
 and the consequences thereof in port La 
 Guayra." She began to take in her cargo 
 there May 16th; was about half loaded when 
 the Spanish patriots advanced upon the 
 place, and she was forced by the magistrates 
 there, to take on board a great number of per- 
 sons as passengers who were afraid of being 
 massacred. She cut her cables July 7th, and 
 proceeded to sea under the protection of an 
 English ship of war bound to St. Thomas ; but 
 being too light she fell to leeward, and for the 
 purpose of repairing her helm and complet- 
 ing her homeward cargo, she put into Jacmel 
 and was wrecked. Held, to avoid a loss by 
 capture and seizure in port for which the in- 
 surers would not have been liable, she cut 
 her cables and put to sea, which discharged 
 the insurers. (O'Reilly n. Royal Exchange 
 Ass. Co., 4 Camp., 346.) But in a policy upon 
 freight which contained no warranty against 
 seizure in port, it was luid, putting to sea to 
 prevent a loss by seizure in port for which in- 
 surer would have been liable, did not dis- 
 charge the insurers. O'Reilly t. Oonne, 4 
 Camp., 249. 
 
 32. Whenever a ship is driven by stress of 
 weather from her own port into another, that 
 shall not be treated as a deviation. Delany 
 v. Stoddart, 1 Term, 22. 
 
 33. On ship and freight from her ports on 
 the coast of Spain to London, with liberty to 
 touch and stay at any port or place whatever. 
 She was compelled to put into Gibraltar for 
 provisions ; and, while taking them in, specie 
 was taken as freight. Held, it was proper for 
 the jury to find whether the going to Gibral- 
 tar was a necessity in order to obtain a proper 
 stock of provisions, and whether the stay 
 there was longer than was necessary for that 
 purpose ; the taking of the specie did not, per 
 se, vary the risk. Saine d. Bell, 9 East, 105. 
 
 34. From London to the ship's port or 
 ports of discharge in the Baltic, with liberty to 
 touch at any port or ports for orders or any 
 other purpose, and to touch and stay at any 
 ports or places whatsoever or wheresoever. 
 She touched at Carlsham for orders and was 
 directed to proceed to Swinemimde, a 
 
 216 
 
 Prussian port, higher up in the Baltic, for 
 orders, off which she arrived and lay off and 
 on. The master was instructed to return to 
 Carlsham because it was unsafe to land at 
 Swinemunde. She arrived at Carlsham, hav- 
 ing sustained heavy sea damage, and was 
 obliged to procure repairs at Cvlsham; 
 while there, her papers and cargo were seized. 
 Held, no deviation. Mellish d. Andrews, 2 
 Man. & Sel., 37; affirmed, Andrews o. MeUish, 
 5 Taunt., 496 ; see Mdlish v. Andrews, 15 East, 
 4; 16 id., 313. 
 
 (c) Of irvo6lwnia/ry deviation. 
 
 35. " At and from New York to the Cape 
 of Good Hope, with liberty to proceed to and 
 trade at the Isle of France, and any other port 
 or ports in the Indian Seas, and at and from 
 the ports she may go to and back to New 
 York, with liberty to touch and trade as usual 
 on the outward and homeward voyages." She 
 touched at the Isle of France and Trincomala, 
 proceeded to Madras and sold part of her 
 cargo, thence to Tranquebar, where she took 
 in cargo and proceeded to Batavia, sold every- 
 thing except goods taken at Tranquebar ; in- 
 vested proceeds in cargo there and sailed. 
 After she sailed, all the officers died ; but be- 
 fore the captain died, he directed one of the 
 seamen, ignorant of navigation, to take the 
 ship to the Isle of France and deliver her to 
 the consul, where she arrived and was dis- 
 patched under command of a British sub- 
 ject for New York, but was lost on the voy- 
 age. Held, no deviation; if the consnl acted 
 irregularly, the rights of the insured could not 
 he prejudiced thereby. Winthrop %. Union 
 Ins. Co., 2 Wash. C. C, 7. 
 
 36. On ship at and from Boston to SL 
 Thomas and a market in the West Indies, and 
 at and from thence to port of discharge in U. 
 8. She arrived at St Thomas, discharged a 
 third of her cargo, received a quantity of 
 mackerel for ballast, necessary for her safety; 
 she proceeded, and when off Ponce, Porto 
 Rico, was compelled by the government to 
 enter that port, although there was no market 
 there for the cargo, where she landed some of 
 the mackerel to secure payment of port dues. 
 She proceeded to Guayama, a port of the same 
 island, sold part of her cargo, took part of her 
 return cargo, returned to Ponce, sold balance 
 
 ' of outward cargo, and completed return cargo. 
 
433 
 
 DEVIATION. 
 
 434 
 
 What is not. 
 
 She was lost on the homeward voyage. Meld, 
 no deviation. Debloit v. Ocean Ins. Co., 16 
 Piclt., 303. 
 
 37. Ship laden for an American port to re- 
 turn with a cargo of timber, entered the port 
 daring an embargo under which she was per- 
 mitted to return with cargo on board or to 
 discharge it, and return in ballast. She dis- 
 charged cargo, and remained there eighteen 
 months until the embargo was taken off, then 
 shipped her homeward cargo, and was lost 
 upon the voyage. Seld, the insurers were 
 liable. Schroder v. Thompson, 7 Tuunt, 463 ; 
 1 Moore, 163. 
 
 38. From Bristol to Newfoundland. The 
 crew opposed the master's directions, and com- 
 pelled him to put back. Meld, not a devia- 
 tion. £Uon V. Brogden, 2 Strange, 1264. 
 
 39. At and from Pillau to London, dated 
 May 15, 1800. She had arrived at Pillau, May 
 13th, in need of repairs, which were made, but 
 she was not ready to take in the cargo till 
 June 27th. Meld, the delay was not voluntary, 
 therefore the policy was valid. Smith v. Sur- 
 ridge, 4 Esp., 25. 
 
 40. She was about to sail from Lisbon to 
 Madeira, then to Saffi in ballast, then back to 
 Lisbon with a cargo of wheat. The broker 
 was directed to make three insurances, one on 
 the ship, for the round voyage; one on the 
 freight, Irom Lisbon to Madeira, and one on 
 freigbt from Saffi to Lisbon. The broker 
 stated that he had received intelligence of her 
 arrival at Madeira; that she was about to pro- 
 ceed on her voyage immediately, and insur- 
 ance was made on the voyage from Saffl to 
 Lisbon. She arrived at Madeira, where the 
 crew became alarmed by a report that there 
 were Moorish cruisers off Saffl. They quitted 
 the ship and refused to return unless the mas- 
 ter would sail immediately for Lisbon. Under 
 these circumstances she sailed for Lisbon, and 
 on her arrival there, charterers insisted on her 
 
 I going to SaflB, which was done ; on her return 
 from Saffi to Lisbon she was captured. Meld, 
 the representation was true, that subsequent 
 events not brought about by the misconduct of 
 the insured would not discharge the insurer ; 
 that the insurer knew that all was executory, 
 and th.1t an alteration might arise which might 
 increase the risk. DriscoU v. Passmore, 1 B. 
 & P., 200; BriseoU v. Bovill, id., 313. 
 
 41, On goods from A. to B., against sea and 
 fire risks only. The king's ship carried her 
 
 out of the course of her voyage, and afterwards 
 released her, when she proceeded on the voy- 
 age and sustained loss. Meld, a deviation 
 never puts an end to the insurance unless it 
 be the voluntary act of those who have the 
 management of the ship. Scott v. Tlwmpson, 
 4 B. & P., 181. 
 
 (d) Of intention to deviate. 
 
 42. Prom New York to Gottenburg, thence 
 to one port in the Baltic. At Gottenburg she 
 elected St. Petersburg, and sailed, but was 
 driven back by stress of weather to Carlsham, 
 where she was compelled to winter. There 
 she determined to go to Stockholm instead of 
 St. Petersburg, and sailed, but before she 
 reached the point to turn off for Stockholm, 
 and while on a course to both places, the loss 
 occurred. Meld, she was not bound to elect at 
 New York the Baltic port; that it was a mere 
 intention to deviate from the voyage to St 
 Petersburg; that intention to deviate is not de- 
 viation, hence insurers were liable. Lawrence 
 V. Ocean Ins. Co., 11 Johns., 240. 
 
 43. If the vessel is lost, the insurer is lia- 
 ble, notwithstanding there was an intention 
 to deviate: provided, the loss occurs before 
 she has arrived at the dividing point. Aji in- 
 tention to deviate is not deviation. New Tork 
 Firemen's Ins. Go. v. Lawrence, 14 Johns., 46. 
 
 44. Term policy, warranted not to use cer- 
 tain ports, including ports in British North 
 America, between August 15th and May 15th. 
 September 20th she sailed from Boston, bound 
 for Lingan, Cape Breton, for the purpose of 
 taking a cargo of coal. She was lost on the 
 coast, wilhin sight of Louisburg light, about 
 fifty miles from the port of Lingan. Meld, 
 the intention to enter a prohibited port was 
 no breach of the warranty ; that sailing along 
 the coast of the North American British Prov- 
 inces was not prohibited, hence the insurers 
 were liable. Snow v. Columbian Ins. Co., 48 
 N. Y., 624. 
 
 45. Time policy, on the bark Cora, prohib- 
 ited from using the river Min, in China. She 
 sailed from Shanghai to New Chang, at the 
 mouth of the river Lian Ho, in northern 
 China. In entering the river she was dam- 
 aged, but not to such an extent as to make her 
 unseaworthy. She took a cargo for Fu-chau- 
 fu, a port on the river Min, and sailed, but 
 sustained more serious injury at the mouth of 
 
 217 
 
435 
 
 DEVIATION. 
 
 436 
 
 What is not. 
 
 the river Lian Ho. She arrived at Pagado, 
 tea miles above Blimpai Pass, on the river 
 Min, at which place a sui-vey was held, and it 
 was decided to dismantle and sell her. It 
 was admitted that all of her injuries were re- 
 ceived prior to her entering the river Min. 
 Held, insurers were liable, because she sus- 
 tained the damages before she entered the 
 waters prohibited. Beams v. ColwnAian Ins. 
 Co., 48 Barb., 445. 
 
 46. An intention to deviate does not avoid 
 the policy, and if the loss occurs before the 
 intention is carried into effect, the insurer is 
 liable. TMlusson v. Fergusgon, 1 Doug., 360. 
 
 47. On goods from Heliogoland to Memel, 
 with liberty to touch at any ports, and seek, 
 join and exchange convoys. She sailed, with 
 orders to go to Gottenburg, there to ascertain 
 ■whether she should proceed to Ahbolt or 
 Memel. While she was in the track for 
 Memel or Anbolt, before she reached the 
 point to turn off for Gottenburg, she was cap- 
 tured. Hdd, there was an inception of the 
 voyage insured under, a fluctuating purpose ; 
 that the master's orders amounted to an unex- 
 ecuted intention to deviate, which did not dis- 
 charge the insurers. Heselton v. Allnutt, 1 
 Mau. & Sel., 46. 
 
 48. The master sailed with an intention to 
 touch at a place not permitted by the policy; 
 but before he turned off she was lost. Held, 
 an intention to deviate is not deviation, and 
 does not affect the policy. Kewley v. Ryan, 2 
 H. Black., 343. 
 
 49. On cargo from Liverpool to London. 
 She took cargo for Southampton as well as 
 London, intending to go first to Southamp- 
 ton. She sustained great damage before she 
 reached the dividing point, and in pumping 
 the water seemed to hold the goods insured 
 (pearl ash) in solution ; but there was no heavy 
 weather after she turned off for Southampton, 
 nor was there any after she left Southampton 
 for London. The loss was sixty per cent, on 
 the pearlash. Reld, the insurer was liable for 
 the damage which occurred before she devi- 
 ated. Hare v. Trcmis, 7 B. & C, 14; 5 L. J. 
 K. B., 348; 9 D. & R., 748. 
 
 50. From Carolina to Lisbon, thence to 
 Bristol. The master took in salt for Fal- 
 mouth, intending to deliver it there before 
 she went to Bristol, but the ship was taken in 
 the direct line to both, before she reached tlie 
 point to turn off for Falmouth. Held, an in- 
 
 S18 
 
 tention to deviate is not deviation, hence the 
 insurers were liable, foster v. Wilmer, 2 
 Strange, 1349. 
 
 (e) Of custom or usage. 
 
 51. Stipulated: " If at sea at the expiration 
 of the year, the risk to continue at the same 
 rate of pi-emium until her arrival at port of 
 destination In the United States." She was in 
 the river Maese before the year expired, wait- 
 ing to sail, but was prevented by head winds 
 and a heavy sea. She proceeded to Newcastle, 
 took a cargo for the United States, and was 
 damaged on the voyage. Seld, going to New- 
 castle was not such a deviation as would dis- 
 charge the insurer, if the master was governed 
 by the exigencies of the trade in which she 
 was engaged. Union. Ins. Co. v. Tysen, 3 Hill, 
 118. 
 
 52. From Callao to the Chincha Islands, 
 and from thence to New York. She loaded 
 with guano and returned to Callao for her 
 clearance, and sailed thence on the home 
 voyage, upon which she was lost Hdd, if her 
 return to Callao was warranted by the usage 
 and custom, it was no deviation. Parsons v. 
 Uanufactwrers Ins. Co., 16 Gray, 463. 
 
 53. For a fishing voyage to the Banks and 
 back to a port of discharge in the United 
 States. Two of the crew left the vessel at the 
 port of departure, but she sailed with a suffi- 
 cient crew ; two additional men were needed 
 for the purposes of fishing. She proceeded to 
 Isle-au-Haut for the purpose of completing 
 the fishing crew, conforming to a usage in 
 that respect. HeM, no deviation. FoUom i>. 
 Merchants Ins. Co., 38 Me., 414. 
 
 54. On cargo from New Orleans to Vera 
 Cruz. She sailed from one of the basins in 
 that city, from the lake end of the Pontchar- 
 train railroad, passed through Lake Borgne, 
 calling at bay St. Louis for the purpose of 
 procuring a pilot to conduct vessel through 
 Pass Christian. if«i<?, no deviation. Pouverin 
 V. Louisiana State Ins. Co., 4 Rob. (La.), 234. 
 
 55. On slaves from Richmond to New Or- 
 leans. She stopped at different places in de- 
 scending the river to take cargo and passen- 
 gers, but this was in accordance with usage. 
 Held, no deviation. Lockett o. Merchants Ins. 
 Co., 10 Rob. (La.), 339. 
 
 56. The commodore signaled ships, await- 
 ing convoy, to prepare for sailing, and about 
 
437 
 
 DEVIATION. 
 
 438 
 
 "What is not. 
 
 an hour after he signaled them to weigh an- 
 chor; before the last signal was given a boat 
 came alongside the ship, insured with eleven 
 small boxes and two parcels of indigo, which 
 were taken on board about the time the last 
 signal was given. She got under way and 
 was amongst the foremost of the fleet, about 
 seventy^ix sail. Held^ it did not afl'ect the 
 policy. Laroche v. Oswin, 13 East, 131. 
 
 57. On the William Galley from Bremen to 
 London, " "Warranted to depart with convoy." 
 She sailed with convoy to the Elbe, thence to 
 the Texel, where she found a squadron of 
 English men of war, from which she was sep- 
 arated by heavy weather and was subsequently 
 captured. Held, the voyage ought to be ac- 
 cording to usage, and as there was no convoy 
 direct for ships from Bremen to London, her 
 going to the Elbe was no deviation. Bond ». 
 Gonsales. Holt K. B., 469 ; 2 Salk., 445. 
 
 58. " At and from her loading port or ports 
 in Amelia Island," which lies near the mouth 
 of the river St. Marys. There was no port 
 there. She took in her cargo at Tiger Island, 
 paid the duties, obtained her clearance at 
 Amelia Island, and was lost on her way home ; 
 but it was proved that the loading was accord- 
 ing to custom, ffeld, the loss was within the 
 policy. Moxon v. Atkins, 3 Camp., 200. 
 
 59. " From London to New South "Wales, 
 thence to the ship's loading port or ports in 
 the East Indies, Persia, China or elsewhere, 
 forwards and backwards and backwards and 
 forwards, as well on the other as on this side 
 of the Cape of Good Hope, in ports and at 
 sea, at all times and in all places, on all 
 services, until her safe arrival at her final 
 port of discharge in Great Britain ; and that 
 it should be lawful for her in the voyage in- 
 sured, to proceed and sail to, and touch and 
 stay at, any ports or places whatsoever, etc." 
 She carried convicts to New South Wales, pro- 
 ceeded in ballast to Batavia, took iron there, 
 discharged it at Soorabaya, and took a full 
 cargo of rice there for the Mauritius, where it 
 was ascertained she had sustained serious in- 
 jury in the course of the voyage, ffeld, as it 
 was proved that the mode of trading was usu.il 
 in voyages of that description, there was no 
 deviation. Armet v. Innei, 4 Moore, 150; 
 Leathley v. Hunter, 7 Bing., 517; s. c, 10 B. & 
 C, 858; 8 L. J. (K. B.), 274; affirmed, 9 L. J. 
 Ex., 118 ; 8. c, 5 M. & P., 457; 1 Tyrw., 355. 
 
 60. "On ship, freight and cargo, lost or not 
 
 lost, from Newfoundland to one port of dis- 
 charge in Portugal, or to any port of discharge 
 in the U.K." She was employed in fishing 
 until October 13th, off the banks, took in her 
 cargo, sailed for England December 22d, and 
 foundered. The established usage sliowed 
 that ships in the Newfoundland trade, after 
 their arrival on the coast, were either em- 
 ployed in banking, that is fishing on the 
 banks, or upon an intermediate voyage to 
 some of the adjacent settlements, till they 
 begin to take in their homeward cargo ; and 
 that during banking or the intermediate voy- 
 age, the custom was to cover the ship by a 
 separate insurance. Held, the custom must 
 be presumed to be equally in the knowledge 
 of both parties, that the employment of the 
 ship in banking was no deviation. Vallanee 
 V. Bmar, 1 Camp., 503; Ou^rierB. Jennings, id., 
 505, n. ; Kingston v. JSnibbs, id., 508, n. 
 
 61. "On ship from Swan River to Mauri tins, 
 and for thirty days after arrival." January 
 14, 1857, she came to anchor off Port Louis, 
 at the Bell Buoy, about a quarter of a mile 
 from shore, where the master awaited the ar- 
 rival of money to discharge a bottomry bond. 
 On the 28th a change of weather was signaled 
 from the shore, and while she was putting out 
 to sea, she struck a coral reef and became a 
 total wreck. It was usual for vessels to anchor 
 at the Belle Buoy whether about to enter Port 
 Louis or not, but it was dangerous to remain 
 there during the hurricane months — Decem- 
 ber to April. Held, whether a vessel has ar- 
 rived within a harbor is purely a question of 
 fact, for it involved an inquiry as to time and 
 place. The jury found that she had arrived at 
 the Mauritius, hence the insurers were liable. 
 LiT^myo. Janson, 4 H. & N., 699; 28 L.J. 
 Ex., 315. 
 
 (f) Of delay at port ofsailmg. 
 
 62. She was delayed at the port of lading. 
 Held, whether that was a deviation was a ques- 
 tion for the jury, who were to say whether it 
 was done in good faith and sound discretion, 
 and by necessity, or for a reasonable cause. 
 Foster s. Jackson Marine Ins. Go., Edm. S. 0. 
 N. Y., 290. 
 
 63. "Whether the ship remained an unrea- 
 sonable time at a particular place is a ques- 
 tion of fact for the jury. Bain v. Case, 3 0. & 
 P.,496iMoo. &M., 262. 
 
 219 
 
439 
 
 DEVIATION. 
 
 440 
 
 What is not. 
 
 64. After the master had obtained his man- 
 ifest and custom house clearances, goods of 
 the insured were put on board by the packer. 
 Held, no defense to the policy. Carruthers u. 
 Gray, 15 East, 35; 3 Camp., 142. 
 
 65. The policy was effected in August, 1789, 
 but she did not sail until the 'iMarch follow- 
 ing. Held, mere lapse of time between the 
 sailing and the underwriting was not of itself 
 sufficient to avoid the policy, but was subject 
 to explanation; and whether there was an 
 abandonment of the original adventure was to 
 be decided by the jury, from all the existing 
 circumstances. OrarU n. King, 4 Esp., 175. 
 
 (g) Of construction. 
 
 66. It was represented that she would stop 
 at Matanzas to know if there were any men-of- 
 war off Havana, and the policy was made on 
 ship and freight " At and from Teneriffe to Ha- 
 vana, and at and from thence to New York, 
 with liberty to slop at Matanzas." She put 
 into Matanzas to avoid British cruisers, who 
 were then off Havana, and while there she 
 unladed her cargo, under order from the 
 Spanish authorities, proceeded to Havaua, 
 whence she sailed for New York, and was lost 
 by perils of the seas. Seld, there was no suffi- 
 cient excuse for discharging the cargo ; but 
 unlading it there caused no delay, and there- 
 fore did not amount to a deviation, for the 
 stopping and delay at Matanzas was permitted 
 by the policy. Hughes v. Union. Ins. Co. 3 
 Wheat, 159. 
 
 67. When different ports are to be visited 
 for the purpose of selling the cargo, the owner 
 has the right to limit the price to a reasonable 
 extent, and a delay, lona fde, for the purpose 
 of procuring the price does not constitute a 
 deviation. Columbian Ins. Co. ti. Catlett, 12 
 Wheat, 383. 
 
 68. She had been detained a long time at 
 Bayonne to obtain leave to unload her outward 
 and take in homeward cargo. The master ap- 
 plied to the American minister and obtained 
 from him a letter of marque, increased his 
 armament from four to fourteen guns, and his 
 crew from twenty-five to seventy men, for pur- 
 poses of defense only. She sailed for the 
 United States, and when three days out, a 
 vessel was seen standing for her. She made 
 an attempt to avoid her, but as the two ap- 
 proached near to each other, the master ascer- ' 
 
 220 
 
 tained that the supposed enemy had but a 
 small. force. He, therefore, wore ship and 
 demanded a surrender, which was immediately 
 made and sent her to France as a prize, where 
 she arrived and was subsequently condemned. 
 The ship insured was afterwards captured, 
 carried into Halifax and condemned as prize 
 of war. Held, if when she wore round to at- 
 tack the other, it was for the purpose of self 
 defense, to intimidate the enemy and to repel 
 a meditated attack before she should herself 
 bo disabled, then the act was not a deviation; 
 but, if it was wholly unnecessary, and not 
 done in self defense, but for the mere pur. 
 pose of making a prize, then it was a 
 deviation; if the capture was made in self 
 defense, the master had a right to take pos- 
 session of the prize; and, if without weak- 
 ening his own crew, he could man her, then 
 he had a right to do so, and a delay for that 
 purpose was not a deviation, for the right to 
 capture drew to it all the incidents necessary 
 to make the capture effectual. Haven v. Hol- 
 land, 2 Mason, 230. 
 
 69. A memorandum indorsed, "The ship 
 having returned to the Isle of France from 
 Calcutta, and from thence proceeded again to 
 the coast of India, it is agreed that, in con- 
 sideration of an additional premium of ten 
 per cent, received, the same shall not preju- 
 dice this insurance." Held, it covered all pre- 
 vious deviations. Crovmingshidd ». Neui Twli 
 Ins. Co., 3 Johns. C, 142. 
 
 70. On vessel from " New York to Barba- 
 dos and a market." Held, the vessel might 
 go, ionajide, from island to island until her 
 cargo was disposed of. Maxwell v. Bobimon, 
 1 Johns., 333. 
 
 71. On ship and cargo. New York to An- 
 tigua, thence to Curacoa. There was the usual 
 memorandum, as to corn, meal, etc. One of 
 the owners was supercargo and consignee. 
 In very bad weather, while attempting to beat 
 up to the island, she sprung her fore mast, 
 and ran to Santa Croix, the nearest port of 
 safety, to refit, where she arrived December 
 22d. It was necessary to procure a new mast. 
 The corn, damaged by sea water, was very 
 much heated, which, with meal, flour and 
 some onions, more than one-half the cargo 
 were sold there without any delay, bringing 
 gross $3,000. The disbursements for repaird 
 were $408. She sailed January 5th for Cur- 
 acoa. The reason assigned for not going to 
 
Ml 
 
 DEVIATION. 
 
 442 
 
 What is not 
 
 Antigua was, that it was impracticable with 
 that vessel to beat np against the winds and 
 currents which then prevailed. She was cap- 
 tured, carried to Jamaica with the remnant 
 of tlie cargo, and all was then condemned ou 
 the ground of a breach of the blockade at 
 Curacoa. The master knew nothing of a block- 
 ade in fact; there were some rumors to that 
 effect, which were not credited. Held, going 
 directly from Santa Croix to Curocoa was not 
 a deviation ; thai she was not bound to go to 
 all the ports mentioned; that she might pro- 
 ceed directly to any one of them. Meld, also, 
 that selling the cargo at Santa Croix occa- 
 sioned no delay, and that it was the duty of 
 master not to keep the corn on board imd 
 allow it to spoil. Kane v. Columbian Ins. Co., 
 2 Johns., 265. 
 
 72. At and from Santa Martha on the Main 
 to New York, with liberty to touch at two 
 other ports. Insurers subsequently agreed for 
 an additional premium : " The brig may have 
 the privilege of performing a voyage from 
 Santa Martha to Chagres and back to Cartba- 
 gena; " also for an additional premium, " Said 
 brig, or any other vessel or vessels, may use 
 three additional ports from the Spanish Main 
 to New York." She touched and stayed, dis- 
 charging and taking in cargo, at Kio Hacha, 
 Santa Martha, Carthagena, Chagres, again at 
 Carthagena, Savoniila, then again at Rio 
 Hacha, whence she sailed for the home port. 
 Held, the privilege to visit three additional 
 ports did not mean ports on the homeward 
 voyage after leaving the Spanish Main, hence 
 there was no deviation. DePeyiter v. Sun 
 Mut. Ins. Co., 19 N. T., 272 ; a. c, 17 Barb., 306. 
 
 73. "At and from Warren, July 30, 1843, at 
 noon, on a whaling voyage, and to continue 
 during her stay and cruising and until her re- 
 turn to Warren, with liberty to stop at all 
 ports and places for trade, riifreshments and 
 recruits." Held, liberty to stop at ports, etc., 
 did not deprive her of the right to enter bays 
 or touch and stay at islands for the proper 
 purpose of a whaling voyage, nor did it limit 
 her to the taking of whales only; that if in 
 the usual course of a whaling voyage, sea ele- 
 phants were taken, then the policy-gave the 
 right to take them in the manner usually pur- 
 sued. Child V. Sun Mut. Ins. Co., 3 Sand., 86. 
 
 74. " On cargo, from Boston to port of dis- 
 charge in Europe, against all risk of every 
 name and nature, bad debts and illicit trade 
 
 excepted." She escaped the British blockade 
 of Holland, and went so far up the Maese that 
 she might have gone to Rotterdam. But the 
 master being informed he would not be per- 
 mitted to land his cargo there or in any part 
 in Holland, proceeded for Gottenburg to ascer- 
 tain whether he could sell the cargo there, or 
 to what market in the north of Europe it 
 would be best to carry it. He left Gottenbnrg 
 for a market in the Baltic, and was captured 
 by a Danish privateer and libeled as a prize in 
 Copenhagen. Held, that getting into Holland 
 must be understood as getting in for the sale 
 and delivery of the cargo. Held, also, when 
 property is insured to a port of discharge, the 
 insured has a right to obtain advice at the 
 port of arrival respecting the markets, and 
 may proceed thence to such port as promises 
 the best sales, and is not obliged to discharge 
 his cargo at the first port he makes. Coolidgt 
 D. Gray, 8 Mass., 527. 
 
 75. Liberty to cruise and capture does not 
 carry with it liberty to convoy ; but if it ap- 
 pears that she did not go out of her way to 
 convoy, and that she was not delayed thereby, 
 and that the risk was not increased by the act 
 of convoying, there is no deviation. Ward b. 
 Wood, 13 Mass., 539. 
 
 76. "On ship and cargo from Boston to 
 port or ports beyond Cape of Good Hope, one 
 or more times to the same port for the purpose 
 of selling outward and procuring return cargo, 
 and at and from thence to port of discharge 
 in Europe or United States." She went to 
 Cochin China with gold coin only, with 
 which she could not trade ; thence to Manilla, 
 and having sold the gold there for silver, re- 
 turned to Cochin China and purchased about 
 one-eighth cargo. Finding she could not 
 complete the cargo there, she went to Batavia, 
 where she found sugar scarce and dear; but 
 she might have proceeded to Samarang, and 
 there completed her lading. A law of Java 
 prevented her going to Samarang with sugar 
 brought from Cochin China, so it was sold at 
 Batavia, to enable her to go to Samarang, at 
 which place she procured a cargo and sailed 
 for a port of discharge in Europe. Held, that 
 neither going to Manilla and returning to 
 Cochin China, nor the transactions at Java, 
 constituted a deviation. Thomdike v. Sord- 
 man, 4 Kck., 471. 
 
 77. Ship insured to "Kingston and a mar- 
 ket in Jamaica." She sailed with orders to 
 
 221 
 
M3 
 
 DEVIATION. 
 
 444 
 
 Wbat is not. 
 
 proceed to Jamaica, and when off the east end 
 of the island, if in season, to fulfill a contract 
 to deliver goods at Port Maria, to proceed 
 there direct, but otherwise to proceed to 
 Kingston, and there sell so much of the cargo 
 as should be salable, and then go with the 
 residue to Port Maria. She went to Port 
 Maria but not to Kingston, and on her return 
 voyage was lost. Held, no deviation ; that the 
 sailing orders were not material to be com- 
 municated to the insurer. Houston v. New 
 England Ins. Co., 5 Pick., 89. 
 
 78. On goods from Boston to Terceira, and 
 at and from thence to port of discharge in the 
 United States, with one quarter of one per 
 cent, to be added to the premium for every 
 other port used in the Western Islands. She 
 went directly to Graciosa, one of the Western 
 Islands, and was lost. Held, no deviation. 
 Hale V. Mereantile Mar. Ins. Go., 6 Pick., 172, 
 
 79. At and from Boston to all ports and 
 places on the globe, and until her return to 
 Boston, not exceeding two years. She arrived 
 in Boston Bay, below the harbor, within the 
 two years, and the owner ordered her into 
 Salem for repairs. Subsequently, while being 
 hauled on a marine railway, to be repaired 
 partly on land, she was damaged by the vio- 
 lence of the wind. Held, the loss was covered 
 by the policy; that putting into Salem was 
 not a deviation. Ellery v. New England Int. 
 Co., 8 Pick., 14. 
 
 80. On ship from a foreign port to a port of 
 discharge in the United Stat«s. She called at 
 Savannah to ascertain the state of the market, 
 made some repairs and sailed for Boston; but 
 before she sailed, she took a deck load of forty 
 bales of cotton for Boston. Held, the master 
 had a right to stop at Savannah, to obtain 
 necessary repairs and supplies, or to make in- 
 quiries as to the state of the market, and to 
 form his judgment deliberately, whether he 
 would discharge there or proceed to another 
 port; that taking a deck load of cotton would 
 not discharge the insurer, unless the risk was 
 thereby increased, or the voyage thereby de- 
 layed. In determining whether the risk was 
 increased, the jury were to take all the advan- 
 tages and disadvantages into consideration; 
 that the policy was not vacated, though the 
 risk was increased in one particular if it was 
 diminished in another in an equal or greater 
 degree. Lapliam v. Atlas Int. Co., 24 Pick., 1. 
 
 81. "On vessel from Baltimore to New 
 
 York via Chesapeake and Delaware canal to 
 Delaware Bay, and from thence by sea to New 
 York." On lier return to Baltimore, insurers 
 indorsed the policy: " It is hereby understood 
 that the policy shall cover $2,500 on steamer 
 E. J. D., from Baltimore to New York, at one 
 and a half per cent., subject to steamboat 
 clause. On vessel valued at $6,000." It was 
 proved that the steamboat clause, referred to, 
 exempted the company from loss by breakage 
 or derangement of the engine, or bursting of 
 the boiler or any of the parts thereof, or for the 
 effects of fire from any cause connected with 
 the operation of repairs to the engine or boiler, 
 unless occasioned and made necessary by 
 stranding or sinking after the engine or boiler 
 should have been put in successful operation. 
 She went down the Chesapeake Bay to the 
 Atlantic. Held, the effect of the indorsement 
 was a new contract subject to the terms and 
 stipulations mentioned in the policy, except so" 
 far as they were varied by the words of the in- 
 dorsement, that the indorsement described 
 merely the terminus a gw> and the terminus 
 ad quern, without restricting the voyage to any 
 particular route ; she was not bound to pro- 
 ceed by the way of the Delaware and Chesa- 
 peake canal, and there was therefore no devia- 
 tion. Commonwealth Ins. Co. r. Cropper, 21 
 Md., 311. 
 
 8a. From Charleston to the Cape de Verds, 
 thence to the coast of Africa. She proceeded 
 directly to the coast of Africa. Held, no devi- 
 ation. Cross v. Shutliffe, 2 Bay., 220. 
 
 83. "On such shipments as maybe made 
 and indorsed hereon from Lexington, or any 
 landing on the Missouri, to St Louis, Pitts- 
 burg, etc." The shipment was made from 
 Dover and Waverly per steamboat Amelia to 
 St. Louis. It was transhipped at Jefferson 
 City to the Kit Carson, who brought it to St. 
 Louis, at which place it was burned before it 
 passed from the possession of the carrier. The 
 policy gave permission to reship at all times 
 and places. Held, the reshipment was not a 
 deviation under the contract. Fletcher d. 8t. 
 Louis Mar. Ins. Co., 18 Mo., 193. 
 
 84. At and from Leith to Shetland, and 
 from thence to Barcelona, at and from thence 
 and two other ports in Spain to a port in Great 
 Britain, and it shall be lawful for the said ship 
 in this voyage to proceed and sail to and touch 
 and stay at any ports and places whatsoever, 
 without prejudice to this insurance. She 
 
U5 
 
 DEVIATION. 
 
 446 
 
 What is not. 
 
 sailed trova Leitii, took a cargo of fish in Ler- 
 wick Bay, and arrived off Barcelona when 
 there was a contagious fever at that place, 
 ■which prevented her entering the port. She 
 was therefore directed to proceed to Tarragona 
 to discharge cargo, and from thence to Saloe, 
 round the head of land about ten miles fi-om 
 Tarragona, there to take her home cargo. 
 She arrived at Tarragona, discharged cargo, 
 proceeded thence and cast anchor off Saloe 
 and commenced loading nuts and brandy. 
 She was moored in the roadstead, the usual 
 station for vessels of her burthen, and while 
 there a very heavy gale drove eveiy vessel 
 ashore, and they were all wrecked. Saloe was 
 frequented as a port, and usually designated 
 as such, and the Spanish nation considered it 
 such, and conferred upon it the dignities and 
 privileges of a port Held, affirming the de- 
 cision of the court of session, that she was 
 protected by the policy at the time of the loss. 
 Sea Ins. Co. v. Gavin, 2 Dow. & C, 129 ; 4 Bli. 
 (N. S.), 578. 
 
 85. She had liberty to touch at the Cape de 
 Yerds. She took in some cargo at Buena 
 Vista, where she touched. A letter was offered 
 and admitted, which showed that insurer 
 granted permission to touch for the purpose 
 of loading salt. Seld, the letter was admissi- 
 ble to explain the permission, and taking both 
 together, there was no deviation. Urquhart v. 
 Barnard, 1 Taunt, 450. 
 
 86. At and from Martinique, and all or any 
 of the West India Islands to London. She 
 sailed from Martinique for San Domingo, took 
 in her cargo there, sailed thence for London, 
 and was captured. Held, the insurer was lia- 
 ble. Bragg v. Anderson, 4 Taunt, 229. 
 
 87. "At and from Pernambuco or any other 
 port or ports on the coast of the Brazils to 
 London." Held, if she could not get a cargo 
 at P., she might go to any other port or ports 
 till she got one, and she was not restricted 
 to those ports that were in the direct course 
 from P. to L. Lamhert o. Liddiird, 5 Taunt, 480. 
 s. c, 1 Marsh., 149. 
 
 88. She had liberty to touch and stay at all 
 ports for all purposes whatsoever. She sailed 
 for Carlsham, at which place she arrived and 
 stayed two months. She sailed for Swine- 
 mnnde, where she was afterwards captured. 
 Hdd, no deviation. Langhom o. AUnutt, 4 
 Taunt, 511. 
 
 89. "To any port in the Baltic." She was 
 
 destined to Revel, and taken while in the Gulf 
 of Finland. Held, it was competent for plaint- 
 iff to prove that " the Baltic " is nomen generale, 
 comprehending in common understanding the 
 gulfs and inlets which communicate with the 
 sea ; that if the Gulf of Finland was considered 
 within the Baltic, the insurers were liable. 
 UJide V. WaMers, 3 Oamp., 16. 
 
 90. At and from Antigua to England, with 
 liberty to touch at all or any of the West India 
 islands, Jamaica included. Held, she might 
 touch witbiout any regard to their geographi- 
 cal order, that she might go from island to 
 island for the purpose of seeking freight 
 Metcalfe v. Parry, 4 Camp., 123. 
 
 91. At and from Liverpool to Palermo, 
 Messina, Naples, and Leghorn, "provided 
 the French should not be at Leghorn." She 
 cleared for Naples only, and was captured in 
 the Bay of Biscay. Held, she was at liberty 
 to drop any of the places named; that if she 
 went to more than one, she must take Uiem in 
 the order named in the policy; that sailing for 
 Naples only, was a voyage within the policy. 
 Marsden ®. Beid, 3 East, 572. 
 
 92. At and from Stockholm to New York. 
 She had a cargo of sheep; but understanding 
 that she was to touch at Elsinore, sufficient 
 provender was not taken for the voyage ; she 
 touched at Elsinore for convoy and to pay 
 sound dues, where sufficient provender was 
 put on board, before the sound dues could be 
 paid. Putting in the provender did not cause 
 any detention. Held, the omission to take 
 enough provender affected the safety of the 
 cargo only, and as it was laid in without de- 
 laying the voyage, there was no deviation. 
 Gormack v. Gladstone, 11 East, 347. 
 
 93. On goods from H. to B. She was not 
 at H. when it was made, but she arrived at H. 
 some days after, and took in the cargo for B., 
 sailed on the voyage and was lost Held, it 
 has never been understood that the ship must 
 be at the place at the very time of making the 
 insurance; tlie insurer had a right to expect 
 that she was there, or would soon be there, 
 and the jury were to determine whether the 
 intervening period materially changed the 
 risk. Hull <o. Cooper, 14 East, 479. 
 
 94. " From London to any port or place or 
 places in the Baltic, backwards and forwards, 
 with leave to touch and stay at any ports and 
 places, for all purposes whatsoever." Held, 
 she might wait at any port for information as 
 
 223 
 
447 
 
 DISCOVEET. 
 
 448 
 
 Miscellaneous. 
 
 to what port in the Baltic she might safely 
 proceed to discharge her cargo, nor was that 
 liberty abridged by subsequent special " leave 
 given to wait for information off any ports and 
 places." Mucker v. Allnutt, 15 East, 278. 
 
 95. From "Helstone tv Cork, with liberty 
 to touch and stay at any port or place." She 
 hailed a fishing boat near Coverack Cove, and 
 sent a man ashore to Coverack for a barrel of 
 flsh, and to ascertain whether insured was 
 there. The wind was ahead; she put into 
 Gauves Lake in Mount's Bay, and lay there to 
 a single anchor for the night. Supercargo 
 sent a letter ashore by one of the crew, and in- 
 sured came aboard the next day, the master 
 and supercargo going ashore to transact some 
 business. She put to sea, and very soon after 
 took fire and was burned. Held, no deviation. 
 Thomas v. Royal Exchange Ass. Co., 1 Price, 
 195. 
 
 96. If the ship deviates, the insurers are dis- 
 charged at the commencement of the devia- 
 tion ; but, for any loss within the policy which 
 occurred prior to the deviation, they are lia- 
 ble. Oreen v. Toung, 2 Ld. Raym., 840. 
 
 97. " On ship at and from Liverpool to 
 porta and places in China and Manilla, all or 
 any, during the ship's stay there for any pur- 
 poses, and from thence to her port or ports of 
 calling and discharge in the United King- 
 dom, with liberty to call and stay at all or 
 any ports or places on either side of or at the 
 Cape of Good Hope." She sailed from Liv- 
 erpool to Lintin (in China) and Manilla. She 
 was prevented from entering Lintin, but per- 
 mitted to go to Tongkoo, a place in sight of 
 Lintin, discharged part of cargo, proceeded to 
 Manilla, discharged the remainder there, and 
 took 230 chests of opium for Tongkoo and 
 sailed, intending to seek freight at Manilla 
 for the United Kingdom, but was lost before 
 she reached Manilla. Held, no deviation; 
 that the word " thence" referred to ports and 
 places in China and Manilla, and that it did 
 not refer to Manilla only; that the policy 
 should be read to ports or places in China or 
 Manilla, all or any, during the ship's stay 
 there, and from the ports and places in China 
 and Manilla to her ports of calling and dis- 
 charge in the United Kingdom. Held, also, 
 the sailing to Tongkoo to procure freight, 
 for a purpose connected with the homeward 
 voyage, was sailing within the liberty given 
 by the policy. Ashley ii. Pratt, 16 Mees. & 
 
 S34 
 
 "W., 471 ; afllrmed, 1 Exch., 257; 17 L. J. Ex., 
 135. 
 
 98. On a voyage from London to Bombay, 
 thence to China, thence to any port of dis- 
 charge in England, with liberty to touch, stay 
 and trade at any port on this or the other side 
 of the Cape of Good Hope. She sailed from 
 London, Januaiy 29, 1842, arrived at Bombay, 
 June 8d following, unloaded, and found that 
 she needed repairs. Her mainmast was taken 
 out June 24th and repairs completed Septem- 
 ber 2d. She was not advertised till that day. 
 Owing to a large number of vessels, seventy 
 or eighty, seeking freight at Bombay, the 
 scarcity of produce and the depressed state of 
 trade, the rate of freight was extremely low. 
 She was a " seeking ship," and the master, a 
 part owner, abandoned the original intention 
 of proceeding to China and waited at Bom- 
 bay for a cargo at a remunerating rate of 
 freight, with which she commenced loading 
 January 10, 1843, and sailed March 2d follow, 
 ing. She sufferedl sea damage in April, and 
 was obliged to put into the Mauritius, where 
 she was found unworthy of repairs. She was 
 thereupon abandoned. Held, the detention of . 
 the ship for a reasonable time, for the pur- ' 
 poses of the adventure, was lawful ; what was 
 a reasonable time, for that purpose, must be 
 determined, not by any arbitrary rule, but by 
 the circumstances of the particular case; the 
 delay in this case did not amount to a devia- 
 tion, nor was it sufficient to vitiate the policy. 
 Phillips V. Irving, 13 L. J. C. P., 145; 7 M. & 
 G., 325; 8 Scott (N. R.), 3. 
 
 99. On cargo from Cronstadt to Leith. She 
 towed the Agincourt out of the ice into Revel. 
 Held, a question of fact whether it was a de- 
 viation, and whether the defender undertook 
 the obligation with knowledge that she had 
 performed the service. Churock Hope Work 
 Co. V. Vlemming, 5 C. C. S. (3d ser.), 501. 
 
 DISCOVERY. 
 
 1. This was a bill for discovery; but there 
 was no allegation that the complainants were 
 not able to prove their case at law without the 
 benefit of the discovery sought. Held, it was 
 not necessary to so allege, for a defendant 
 may file his bill for the purpose of rebutting 
 
4A9 DIVORCE— DOUBLE INSURANCE OR PRIOR INSURANCE CLAUSE. 450 
 
 MisceUaneous. 
 
 the evidunce necessary to sustain the plaint- 
 iff's action, and is entitled to discovery for 
 the purpose of attack on the case of his ad- 
 versary. AiUmiie Ins. Go. v. Lunar, 1 Sand. 
 Oh., 91. 
 
 2. The bill charged that since the loss of 
 the ship, the Brazilian government had paid 
 the insured for the goods lost, according to a 
 contract subsisting between assured and the 
 Brazilian government, and prayed a discovery 
 as to the contract and as to the moneys paid, 
 to which there was a demurrer, which was 
 overruled. MiUs v. Campbell, 2 You. & Coll., 
 389. 
 
 3. The bill stated that the defendant B. ef- 
 fected in his own name, with the complainants, 
 a policy of insurance upon certain cargo in a 
 certain ship, and that K. claimed all benefit to 
 be derived from the policy; that B. and K. 
 had produced certain papers in support of a 
 claim for the full amount insured. It alleged 
 fraud, and prayed a discovery against B. and 
 K. The action at law was in the name of B., 
 but the interest was alleged in K. Held, K. 
 was not a party to the action though he was 
 interested in it; and that a bill of discovery 
 would not lie against a person not a party to 
 the record though he were interested in the 
 action. Kerr v. Sew, 5 Myl. & Cr., 154. 
 
 DIVORCE. 
 
 (See IHBUBABLX Iktzbest; Wipe's Policy.) 
 
 Policy made upon the life of A. for the use 
 of his wife. She applied for and obtained a 
 divorce on the ground of desertion, and in- 
 surer refused to receive the premiums. She 
 brought suit to recover all that had been paid 
 and damages, to which the defendant de- 
 murred. Held, the demurrer must be over- 
 ruled. McKee a. PTiwnix Life Im. Co., 28 Mo., 
 383. 
 
 DOCUMENTS. 
 
 Captdbb akd Sziztbs; Stidsnoe; Illicit 
 Tbasb.) 
 
 DOMICILE. 
 
 (See CmzEKS.) 
 
 DOUBLE INSURANCE OR PRIOR IN- 
 SURANCE CLAUSE. 
 
 (See Othsb Inscbasob.) 
 
 1. One of two companies insured $1,000 on 
 fixtures and $3,000 on stock. At the time of the 
 loss thei-e was stock, $2,996.25, and on it there 
 was a loss of $2,094.01 . The fixtures were worth 
 $9,894.91, and there was a loss of $5,918.76 on 
 them. Held, it was not double insurance; 
 that insured was entitled to recover of the first 
 insurer without regard to the second policy. 
 Hoteard Ins. Co. v. Seribner, 5 Hill, 298. 
 
 2. Time policy, $20,000, on lawful goods 
 and merchandise laden or to be laden, upon 
 all voyages in ports, rivers and at sea, with 
 liberty to touch and trade, etc. " If prior in- 
 surance, then this insurer to be answerable for 
 so much only as shall be deficient towards 
 trilly covering the premises insured." Held, 
 it was in the nature of a new insurance upon 
 the new cargo or goods remaining at risk 
 every time the cargo was increased or dimin- 
 ished, otherwise than by the perils insured 
 against) but the total amount for which this 
 insurer was liable during the whole term was 
 $20,000, exclusive of general average or other 
 expenses incurred for the benefit of the in- 
 surer in preserving or attempting to recover 
 the property insured ; e. g., if one-half of first 
 cargo was lost by perils insured against and 
 the insurer became liable to pay $10,000 on 
 that account, upon the next change of cargo, 
 this insurer would insure to the extent of the 
 other half of the original subscription. 
 Ameriean Ins. Co. d. Oriswold, 14 Wend., 399. 
 Nor can such an insurer claim contribution 
 from subsequent insurers, although there was 
 ailment for all the policies at the time they 
 were subscribed. Ibid. 
 
 3. Policy in the names of A., B. & C, on 
 merchandise owned by them. A. owned five- 
 eighths, B. two-eights, and C. one-eighth. A. 
 afterwards effected insurance in his name 
 alone. Held, A. had a right to appropriate the 
 several policies so as to cover the property in- 
 sured to the whole concern, and that the in- 
 surer was not entitled to any allowance based 
 upon the policy made to A. alone. Welles v. 
 Gray, 10 Mass., 42. 
 
 4. On ship, at and from Boston to Charles- 
 ton, etc., stipulated : " In case of other insur- 
 ance prior in date, this insurer shall be charge- 
 
 IS 
 
451 
 
 DOUBLE INSURANCE OR PRIOR INSURANCE CLAUSE. 
 
 452 
 
 Miscellaaeous. 
 
 able only for so much as the amount of the 
 prior insurance may be deficient towards fully 
 covering the property at risk." At the mak- 
 ing of this, there was another policy upon the 
 ship, fully insuring lier, which, by its terms, 
 expired two days afterwards. Held, this pol- 
 icy attached when the elder expired. Kent v. 
 Manufacturers Ins. Co., 18 Pick., 19. 
 
 5. In case of a double insurance, the insured 
 may elect to consider each insurer as liable 
 for a proportionate share of the loss, and re- 
 cover accordingly; or he may require the 
 whole of either; in which latter case, the in- 
 surer who pays the loss will have a remedy 
 against the other for contribution. Wiggin v. 
 Suffolk Ins. Co., 18 Pick., 145. And if the in- 
 sured begins an action against both, and one 
 brings into court his proportion of the loss, 
 and the insured takes it out of court, that is 
 evidence, prima fade, of his election. Ibid. 
 
 6. Policy for |10,000 on the cargo and catch- 
 ings of a ship on a whaling voyage, com- 
 mencing May 1 , 1841, stipulated : " The insurer 
 shall be liable only for so much of the loss as 
 prior insurance shall be deficient towards 
 fully covering the property at risk." August 1, 
 1839, $30,000 was insured on her, which was 
 canceled May 20, 1843. August?, 1839, $7,500 
 was insured on the ship, and $7,500 on her 
 outfits. On the 7th of June, 1843, she was 
 lost by stranding. Intelligence of the loss re- 
 ceived November 10, 1842, and an abandon- 
 ment immediately tendered. Held, the prior 
 policy could not be canceled without the con- 
 sent of this insurer, because to do so was to 
 throw upon him new responsibilities and ad- 
 ditional burdens, and it was immaterial that 
 the first policy was canceled prior to a loss ; 
 that as between the parties to this suit, for the 
 purpose of ascertaining what this insurer 
 shall pay, the first policy was to be treated as 
 in full force. Macy v. Whaling Ins. Co., 9 
 Met., 354. 
 
 7. Two policies, differing in one respect, 
 namely : one made June 6, 1808, and the other 
 June 8, 1808 ; both provided : " If said insured 
 shall have made any other insurance upon the 
 premises aforesaid, prior in date to this policy, 
 then insurers shall be answerable only for so 
 much as the amount of such prior insurance 
 may be deficient in covering the premises 
 hereby insured." The cargo shipped did not, 
 in value, exceed the sum named in the policy 
 dated June 6th. Heiil, double insurance ; and 
 
 that the makers of the second policy were not 
 liable. Peters v. Delaware Ins. Go., 5 8. & R., 
 473. 
 
 8. Two policies upon the same property by 
 different persons, each for the benefit of differ- 
 ent persons. Held, not double insurance, and 
 not affected by the clause known as " prior in- 
 surance." Wells n. Philaddphia Ins. Co., 9 8. 
 & R., 103. 
 
 9. On ship, $7,300. Stipulated: "If in- 
 sured shall have made any further insurance 
 upon the premises aforesaid, prior in date to 
 this policy, then this company shall be an- 
 swerable only for so much of the amount as 
 such prior insurance may be deficient towards 
 fully covering the premises hereby insured, 
 without any deduction for the insolvency of 
 any or all of the underwriters." She was in- 
 sured by two other policies, one for $7,800, 
 and one for $7,400 ; one made before, and the 
 other after this policy; valued in all, $22,000. 
 Held, this second insurer was not exempt from 
 liability; the insured was entitled to recover 
 AWtr of the amount of the partial loss. Whit- 
 ing V. Independent Mut. Ins. Co., 15 Md., 297. 
 
 10. Policies to H. C. & Co.; loss, if any, 
 payable to the Baltimore Warehouse Co., who 
 had made large advances on the goods insured. 
 There were two other policies to the Balti- 
 more Warehouse Co., direct, on goods their 
 own or held in trust. Held, the policies sued 
 on, having been made payable to the ware- 
 house company, must be considered as on the 
 same interest, in the same subject, and against 
 the same risks, as the policies issued direct to 
 Warehouse Co,, and are bound to contribute 
 their respective proportions of the loss. 
 Hough V. PeopW-t Fire Ins. Co., 36 Md., 898. 
 
 10, Plaintiff had double insurance. Hdd, 
 he was entitled to judgment on both policies, 
 but not to satisfaction upon both; that he 
 might have satisfaction from either, leaving 
 the other to pursue his coinsnrer. Neuhy v. 
 Reed, 1 W. Bl., 416. 
 
 11. On goods from tlie Sound to London. 
 They were shipped by M. who indorsed the 
 bills of lading to T. the real plaintiff, who' 
 directed insurance upon the whole, to cover 
 his advances; there was other insurance 
 made by A., a creditor of the shipper. The 
 shipper promised to send the bills of lading 
 to his creditor but never did so. Held, if T. 
 was not to have the benefit of both policies, it 
 was not a case of double insurance ; that as- 
 
453 
 
 DUE AND PAYABLE — ESTOPPEL. 
 
 454 
 
 What is. 
 
 signing tlie bills of lading to T. did not carry- 
 to him the interest which was insured by A; 
 that T. could never come against A's insurers 
 for his own use, and therefore T. was entitled 
 to recover the whole amount insured by him. 
 Ch>din 0. London, Aa». Co., I. Burr., 489; 1 W. 
 Bl., 103. 
 
 DUE AND PAYABLE. 
 
 (See Action.) 
 
 1. Payable at such times as the directors of 
 said company may, agreeably to their act of 
 incorporation, require. Sdd, it was due 
 when the directors required payment to be 
 made, for that which was uncertain then be- 
 came fixed and certain. Qaytes v. Sibbard^ 
 5 Biss., 99. 
 
 2. Where the amount due upon a policy is 
 fixed by a resolution of the company, and the 
 money is declared to be payable in sixty days 
 thereafter. Seld, the money became due then, 
 and payable sixty days thereafter. Utica 
 Ins. Co. V. American Mutual Ins. Co., 16 Barb., 
 171. 
 
 3. The preliminary proofs were furnished 
 and demand made for payment Insurers 
 admitted the loss, but disputed the amount of 
 their liability. Mdd, the condition as to the 
 time of payment was thereby waived, and the 
 sum, for which insurers became bound, was 
 then due, and interest commenced to run from 
 that time. BaUimore Ins. Co. v. Loney, 20 
 Md.,20. 
 
 DWELLING HOUSE. 
 
 (SseDBSoBiPTiON; Nonocotjpanot; Usb and Ocon- 
 
 PATIOH.) 
 
 1. The conditions required that houses and 
 places where goods are deposited and kept 
 shall be truly and accurately described, and 
 for a failure to do so, the policy to be void. 
 This policy was written " on goods in a dwell- 
 ing house." Insured occupied but one room 
 as a lodger. Hdd, no misdescription. Fried- 
 lander «. London Ass. Co., 1 M. & Rob., 171. 
 
 2. The owner of a store and his clerk 
 slept in a small room back of the store. Held, 
 
 the premises were not a dwelling and the in- 
 sured could not, under permission given in 
 the policy to light dwellings with kerosene, 
 keep a lamp burning during the night after 
 the gas was turned oflF. Cerf »• Borne Ins. Co., 
 U Cal., 820. 
 
 ESTOPPEL. 
 
 (See BviDBNcs ; Pbincifai. and Assnt.) 
 
 L What is. 
 
 (a) Of the acts and conduct of the princi- 
 
 pal. 
 
 (b) Cy tJie acts and conduct of the agent. 
 
 II. What is not. 
 
 (a) Of the acts and conduct of the princi- 
 
 pal. 
 
 (b) Of the acts and conduct of the agent. 
 
 I. What is. 
 
 (a) Of the acts and conduct of the 
 jprmcipal. 
 
 1. The issue was whether the person in- 
 sured was in good health at the time the pol- 
 icy was made. Certificates, made by the com-- 
 pany's physcians, certifying the examination 
 and the good health of the person insured, 
 were introduced on behalf of the plaintiff. 
 Held, the defendant was estopped from deny- 
 ing their suflSciency unless the defendant 
 could show that the physicians were deceived 
 by false statements or by suppression of facts 
 which could not have been discovered upon 
 the usual examination. Solloman o. Life Ins. 
 Co., 1 Woods, 674. 
 
 2. Insured warranted that there were no 
 buildings within ten rods of the premises in. 
 sured, which was not true in fact Insurers 
 were informed that the application did not 
 ftiUy describe all buildings within that dis- 
 tance, and after this knowledge, insurers con- 
 tinued to make assessments against the policy 
 and to collect them, ffeld, insurers must be 
 estopped to say that the policy was never 
 valid. Frost c. Saratoga 3fut. Ins. Co., 5 
 DeAio, 154. 
 
 3. Stipulated: "If the mill or machinery 
 be run or operated within the term insured, 
 
 227 
 
455 
 
 ESTOPPEL. 
 
 456 
 
 What is. 
 
 the policy shall be void." Shortly after it 
 wus made, a lathe was run in a machine shop 
 in the basement; but, after insurers had knowl- 
 edge of the fact, and after they had rejected 
 this claim, they made an assessment on the 
 premium note, for general losses, and collected 
 it. Meld, they were estopped to say that the 
 contract was void, for they were not at liberty 
 to declare themselves entitled to enforce the 
 plaintiff's part, and also insist that it was 
 void immediately after it was made; having 
 taken its fruits, they must not be relieved 
 from its obligations. (See Frost v. Saratoga 
 Mut. Ins. Co., 5 Denio, 154.) ViaU v. Genesee 
 Mut. Tns. Co., 19 Barb., 440. 
 
 4. The goods were shipped in the name of 
 J. Q-., who became insurer of them. They 
 were the property of L. P. & Co., but the 
 agreement to insure distinctly recognized the 
 fact of ownership. Seld, no defense to an 
 action brought for a loss by capture. Levff v. 
 Merrill, 4 Me., 180. The vessel belonged to 
 G., the insurer of the cargo. She had on 
 board articles contraband of war. Vessel and 
 cargo were captured. Seld, they must have 
 been received with the privity of the owner or 
 the master appointed by him, and this was no 
 defense to the action. Ibid. 
 
 5. J. was the secretary of the company. It 
 was his duty to attend to the execution and 
 delivery of policies; and to him application 
 was made for the purpose of ascertaining 
 where a lost policy was, in order to determine 
 what form of action should be instituted. J. 
 stated that he had sent the policy to plaintiff 
 either by mail or by private hand. Seld, on the 
 question whether there had been an execution 
 and legal delivery of the instrument, the dec- 
 laration of J. was conclusive against the com- 
 pany (citing Chapman v. Searle, 3 Pick., 38; 
 Harding ®. Carter, 1 Park on Ins., 7th ed., 4; 
 First Baptist Church v. Brooklyn Fire Ins. 
 Co., 18 Barb., 69). Sussex County Ins. Co. v. 
 Woodruff, 26 N. J., 541. 
 
 6. Stipulated: "The aggregate amount in- 
 sured in this and other companies shall not 
 exceed two-thirds the estimated cash value. 
 There was other insurance exceeding that 
 limit, but the company had notice of it, and 
 did not elect to cancel the policy. Seld, the 
 condition was waived. Lycoming Ins. Co. v. 
 Sloahbower, 26 Penn. St., 199. 
 
 7. The evidence tended to show that after 
 insurers had notice that a condition of the 
 
 2S8 
 
 policy had been violated, they continued to 
 treat it as an existing contract. Seld, it was 
 proper to tell the juiy insurers could not set 
 up the violated condition in discharge of 
 their contract if they treated it as existing; 
 for though knowledge was not equivalent to 
 notice, the knowledge was followed by a 
 recognition of the contract which dispensed 
 with the necessity of proving notice. Eureka 
 Ins. Co. V. Robinson, 56 Penn. St., 256. 
 
 8. On cargo from B. to A., in the island of 
 Cuba, warranted American. She cleared for 
 C, South America, but sailed for A., in Cuba. 
 She had a regular clearance for C, bills of 
 lading, invoice and manifest of the cargo, and 
 afladavit to prove property, letter of instruc- 
 tions, passport, voyage and sea letter, in all 
 of which the voyage was described as from B. 
 to C, South America. There was a loss by 
 capture. Seld, if the insurer, at the time of 
 making the policy, knew that the brig had 
 cleared for C, in South America, and had on 
 board the documents describing the voyage as 
 from B. to C, then the cleai-ance for 0. and 
 the documents mentioned could not affect the 
 right of the insured to recover. Baltimore 
 Ins. Co. V. M'Fadon, 4 H. & J., 31. But if the 
 master was to leave her at A., and proceed to 
 a port within the French territory, and there 
 to sell or dispose of the cargo, and there pur- 
 chase return cargo, with intent to carry it as 
 return cargo, the insured could not recover. 
 Ibid. 
 
 9. G. procured a policy August 4, 1857, for 
 six years ; and in June, 1858, mortgaged the 
 property to B., at which time insurers inserted 
 in the body of the policy, " In case of loss pay- 
 able to D." In November, 1860, G. conveyed 
 absolutely to D.; in August, 1861, D. conveyed 
 to B., and by separate instrument, assigned his 
 interest in the policy to B, who conveyed ab- 
 solutely in August, 1862, to H., and by a sep- 
 arate instrument, assigned his interest in the 
 policy to H., at which time insurers received 
 notice of all the conveyances and assignments, 
 and indorsed their consent to said assign- 
 ments. Seld, G. had a right to recover for the 
 use of H., notwithstanding a by-law of the 
 company prohibited an assignment of the pol- 
 icy or of the property insured, " unless con- 
 sented to by ^the company in writing," and 
 notwithstanding the same by-law prohibited 
 any transfer or termination of the interest 
 of the insured, by sa!e or otherwise, without 
 
45T 
 
 ESTOPPEL. 
 
 458 
 
 What is. 
 
 such consent Oilliat «. Pawtucket Mutual 
 Fire Ina. Go., 8 R. I., 283. 
 
 10. It is the duty of the insurer when fully 
 apprised of the subject expected and intended 
 to be insured, so to frame the policy as to 
 cover the intended subject and to fhrnish the 
 expected indemnity against loss upon that 
 subject And if the description given by the 
 applicant, though sufficient by its comprehen- 
 siveness to cover all the property of the kind 
 and in the situation described, and which it 
 may be his right and interest to insure, yet 
 by the usage of insurance or by the effect of a 
 condition annexed to the policy, may be sub- 
 ject, for want of particular words, to a restric- 
 tion by which a portion of the property may 
 be excluded, good faith requires the insurer to 
 apprise the applicant of the ambiguity or 
 otlier defect, or by inquiry ascertain the real 
 intention. Per MARSHAUi, C. J. ; Jackson v. 
 .^tna Ins. Co., 16 B. Mon., 243. 
 
 1 1. On cargo per the Swedish ship Crown 
 Prince, ii-om Charleston to Portsmouth. The 
 revenue laws of Great Britain prohibited the 
 importation of all produce grown in foreign 
 countries, unless carried in British bottoms, 
 or in vessels of the country where produced. 
 This was cotton, a product of the United States. 
 She was lost by perils of the sea. ffeld 
 the defendants undertook to insure a voyage 
 which they must have known was prohibited 
 by the laws of Great Britain, and whatever 
 the risks of that voyage, they undertook them 
 and cannot be heard to say that the voyage 
 was illegal. McFee v. South Carolina Ins. Co., 
 2 McCord, 503. 
 
 12. The policy prohibited the keeping of 
 certain articles in stock. Insurer knew that 
 such articles were embraced in the stock in- 
 sured and were kept by insured for sale as 
 part of their regular business. Seld, the pro- 
 hibition was waived (citing Bryant v. Pough- 
 keepsie Mut Ins. Co., 21 Barb., 154; Delon- 
 guemere v. Tradesmen's Ins. Co., 3 Hall, 589 ; 
 Moore v. Protection Ins. Co., 29 Me., 92; Leg- 
 gett «. jEtna Ins. Co., 10 Rich. Law, 203). 
 Phanix Int. Go. v. Lawrence, 4 Met (Ky.), 9. 
 
 13. The policy was burned, and insurer on 
 request furnished a copy not sealed ; but upon 
 the trial, insurer claimed the right to show 
 that the original policy was under seal. Held, 
 by furnishing the copy insurer impliedly said 
 it was 8 true copy, and was therefore estopped 
 
 to say upon the trial it was not; to permit tliat 
 would be to aid insm-er to successfully per- 
 petrate a fraud. Boekford Ins. Co. v. kelson, 
 65 111., 415. 
 
 14. Stipulated: " Any use of the premises 
 increasing the hazard shall annul the policy ' 
 so long as the same shall be so used." Seld, 
 if subsequently to a violation of the condition, 
 with a full knowledge thereof, the company 
 treated the contract as continuing and sub- 
 sisting, that will operate as a waiver of the 
 violation. Keenan «. Missouri State Mut. 
 Ins. Co., 13 Iowa, 126 ; Same d. Ihibuque Mu- 
 tual Fire Ins. Co., 13 Iowa, 375. 
 
 15. If the insurer receives the premiums 
 with full knowledge oi facts constituting a 
 breach o£ one of the conditions of the policy, 
 the right to insist that the policy is forfeited, 
 for that cause, is gone. Merslwn v. National 
 Ins. Co., 34 Iowa, 87. 
 
 16. The defendant had become a member 
 of the association, signed an undertaking to 
 be bound by the rules of it, and insured his 
 ship in it He asked for a copy-af the rules, 
 but they were not given. He stated that his 
 ship was mortgaged ; but he was not informed, 
 that by the rules of the association a member 
 was not entitled to recover on a mortgaged 
 ship, unless the mortgagee covenanted to pay 
 to the association all sums which might be- 
 come due from the mortgagor. This bill 
 prayed the court to declare, that the plaintiff 
 was not, under the circumstances, bound by 
 the rules of the association; also, to declare, 
 that he was entitled to be paid the loss. The 
 defendant demurred for want equity. HeJd, 
 the demurrer must be overruled. TurnbuU v. 
 Woolfe, 8 Giff., 91. 
 
 17. Stipulated: "In case the said assured 
 has been guilty of fraud in obtaining the 
 policy, it shall be void, and all moneys paid 
 m respect of it shall be forfeited to the com- 
 pany ; " who pleaded, that at the time of 
 effecting the policy, the person insured was 
 suffering from paralysis, the result of an acci- 
 dent, all knowledge of which, insured and tlie 
 company's agent withheld and concealed. 
 The plaintiff replied, that after the company 
 had knowledge of the facts stated in the plea, 
 they accepted a second premium, and thereby 
 elected to affirm the contract Held, the repli- 
 cation was a good answer to the plea. Arm- 
 strong «. Turquand, 9 Ir. C. L. R., 32. 
 
459 
 
 ESTOPPEL. 
 
 460 
 
 What is. 
 
 (b) Qf the acts and conduct of the 
 agent. 
 
 \ 8. The printed terms of the policy stipu- 
 lated: ''All applications for insurance shall 
 be in writing, and shall specify all incum- 
 hrances on the property, and shall be deemed 
 a part of the policy and a warranty by the 
 insured, whether he sign it or not." Insurer's 
 agent filled up the printed form of application, 
 sent it to the company, filled up one of a 
 number of blank policies which he had in 
 his possession, countersigned it, and delivered 
 it as the contract. There was an incumbrance 
 on the property of which no mention w^as 
 made in the application; but the agent had 
 verbal notice of its existence. Hdd, the de- 
 livery of the policy without the plaintiff's 
 written application was a waiver of the printed 
 condition ; that the defendants were estopped 
 to resist the claim on the gound that they bad 
 no written notice of the incumbrance, be- 
 cause the agent who made and delivered the 
 policy had verbal notice of it. Amet v. New 
 York Union Ins. Co., 14 K. Y., 253. 
 
 19. The contract warranted that buildings 
 other than those mentioned in the application, 
 were not .within ten rods of the building in- 
 sured; biit insured sought to show that the 
 insurer's agent who wrote the application, was 
 well acquainted with the premises and all the 
 buildings within the prescribed distance. 
 Held, if the doctrine of estoppel were invoked 
 to aid the insured, it would entirely revoke the 
 rule that parol evidence is not admissible to 
 contradict or vary a written contx-act, hence 
 the evidence was inadmissible. Brown v. Oat. 
 taraitgug Mut. Ins. Co., 18 N. Y., 385. The 
 following case was exactly like the former, 
 except there was no point made upon the trial 
 or upon this appeal, as to whether the agent 
 who filled out the application had authority 
 to write it. MM, the question of power be- 
 ing out of the case, it was the same as if an 
 individual insurer had assumed to make the 
 survey and measurements, fill up a blank 
 application, and represent to the applicants 
 that it was correct. In such a case he would 
 be estopped to deny what he had once asserted 
 as true. Plumb v. Cattaraugus Ins. Co., 18 N. 
 Y., 892. 
 
 20. On ship for account of A., loss, if any, 
 payable to B., warranted free from all liens. 
 She was mortgaged to B. There were two 
 
 230 
 
 other mortgages against her. Held, a breach 
 of the express warranty. Bidwell t. North- 
 western Ins. Co., 19 N. Y., 179. But upon a 
 second trial, it appeared that insured commu- 
 nicated to insurer's agent the existence of the 
 prior mortgages, and that the policy was 
 wanted to secure his interest as mortgagee. 
 Held, to allow the company to take the pre- 
 mium without taking the risk, would be to 
 encourage a fraud; hence insurers were 
 estopped, and insured had judgment b. c, 21 
 N. Y., 302. 
 
 21. The printed terms prohibited other in- 
 surance. The application stated: " I own the 
 property; there is no incum6rance." But 
 there was a mortgage, and other insurance 
 made by the mortgagee, of which insurer's 
 agent had notice. He presented a blank ap- 
 plication to insured, who signed it, and he 
 subsequently filled it up, falsely setting forth 
 there was neither incumbrance nor other in- 
 surance. Held, insurers were estopped to set 
 up the incumbrance or other insurance as a 
 defense to the action. Bovoley v. Empire Ins. 
 Co., 42 N. T. (3 Keyes), 557 ; s. c, 4 Abb. Dec, 
 131 ; 36 N. Y., 550 ; Maker o. Hibernian Ins. 
 Co., 6 Hun. (N. Y.), 353. 
 
 22. The application was prepared by the 
 company's agent, and signed by the insured. 
 In it this question was propounded: " Occu- 
 pation—For what purposes is the building 
 used, and how many tenants are there ? " An- 
 swer. "Dwelling." The policy stipulated: 
 " Any person other than the insured, who may 
 have procured this insurance, shall be deemed 
 to be the agent of the insured and not of this 
 company, in any transaction relating to this 
 insurance." The house was unoccupied at 
 the time of the insurance, and so remained 
 until it was consumed. Insurer's agent knew 
 that the premises were unoccupied at the time 
 he filled up the application. Held, the knowl- 
 edge of the agent was the knowledge of his 
 principal, who must be estopped to defend on 
 the groimd that the premises were unoccu- 
 pied. Alexander n, Oen-mania Fire Ins. Co., 2 
 Hun. (N. Y.), 655; s. c, 5 N. Y. S. C, 208; re- 
 versed, Ct. of App., 13 Alb. L. J., 247. 
 
 23. Defendant's agent authorized to receive 
 applications, filled out the application in 
 question by writing the answers of the plaint- 
 iff opposite the printed inquiries. Plaintiff 
 answered that the buildings, farm and personal 
 property were worth the sum of $14,000, but 
 
461 
 
 ESTOPPEL. 
 
 462 
 
 What is. 
 
 the agent wrote that the farm and buiUliogs 
 were worth $14,000. The plaiutilF signed the 
 application without discovering the mistake. 
 Held, the mistake was the defandant's, and 
 within the principle decided in Rowley «. 
 Empire Ins. Co., 36 N. Y., 550. Owens v. Hol- 
 land PurcKase Ins. Co., 56 N. T., 565 ; s. c, 1 
 N. Y. S. C, 285. 
 
 24. Stipulated : " If the applicant make any 
 misrepresentation, concealment, or misstate 
 his own interest in the property, the insurance 
 shall be void." The application signed by 
 insured stated: "The above property is owned 
 and occupied by me." The words, "owned 
 and occupied by me," were inserted by de- 
 fendant's agent, after plaintiff had informed 
 him as to the particular nature of his title 
 and interest, which was a contract for the 
 purchase of the land and for which a deed 
 was not demandable at the time the fire oc- 
 curred. Held, the knowledge of the agent 
 was the knowledge of his principal; hence, 
 insurers were estopped to defend on the 
 ground that the interest was misstated. Hodg- 
 kins T>. Montgomery County Mutual Ins. Co., 34 
 Barb., 213. 
 
 25. B. was defendants' agent, and by them 
 supplied with policies and renewal receipts 
 signed by the president and secretary, to be 
 filled up and by him issued, but not to be 
 valid till countersigned by B. Held, he had 
 general power to renew old and make new 
 policies, to receive notice of other insurances, 
 and his acceptance of a premium after he 
 had notice of a breach of one of the condi- 
 tions contained in the policy, was a waiver of 
 that condition. CarroU v. Charter Oc^ Ins. 
 Co., 40 Barb., 292; s. c, 38 id., 403; 1 Abb. 
 Dec, 816. 
 
 26. The policy prohibited any increase of 
 risk whatever, by any means whatever, within 
 the control of the insured, whether by occu- 
 pancy or otherwise. At the time of the fire, 
 there were stored in the same building with 
 the property insured (cider) about twenty-flve 
 barrels of native wine, prohibited by the pol- 
 icy. But it appeared the agent of the compa- 
 ny knew that the wine and cider were in the 
 building. Held, if insurer's agent had full 
 loiowledge that the wine was stored with the 
 cider, and that he had possession of the policy 
 and opportunity to indorse the fact upon it, 
 and failed to do so, then the defendant could 
 not set up the omission as a defense to the ac- 
 
 tion. Sathione v. Cits Fire Ins. Co.. 31 Conn., 
 193. 
 
 27. A sizing apparatus was in the premises, 
 which was not disclosed in the application. 
 Insurers subsequently sent an agent to exam- 
 ine tliem, and received the premium after they 
 were examined. Held, if the contract was ob- 
 tained by a fraudulent concealment, taking 
 the premium did not confirm it, unless the 
 agent had knowledge of the sizing apparatus, 
 and that question must be left to the jury. 
 AUen V. Vermont MvttuU Fire Ins. Co., 12 Vt., 
 366. 
 
 28. Insurers defended on the ground that 
 the property was misdescribed, and that the 
 rate of premium was thereby affected. Held, 
 it was proper to prove the statements made by 
 insured to the company's secretary, and that 
 the latter then wrote the description to suit 
 himself. Hence the misdescription, if there 
 were one, was no defense to the action. 
 Moliere v. Pennsylvania Ins. Co., 5 Rawle, 342. 
 
 29. The policy was based upon a survey 
 and description of the building; and among 
 the conditions annexed, a false description of 
 the building or its contents by the insured 
 should vitiate the policy. The description 
 and survey were made a part of the policy, and 
 a warranty on the part of the insured. The 
 application failed to disclose one mortgage for 
 $.5,000, and another for $1,000. It stated, the 
 works are operated by the proprietor, and 
 lighted by closed lamps. The proof showed 
 that an open light was generally used to light 
 up the others, and that the works were not ex- 
 clusively operated on account of the proprie- 
 tor; that he rented portions of the building, 
 and supplied steam power to the renters ; but 
 it was proved that a person, acting for insurers' 
 agents, surveyed the building, knew how it 
 was occupied, and that the insured signed the 
 application in blank, delivered it to this per- 
 son who afterwards filled it up from memory, 
 and it was not afterwards shown to the insured. 
 One of the insurers' agents testified that he 
 knew the building and as to how it was occu- 
 pied ; that he knew of the mortgage not men- 
 tioned in the policy or in the application. 
 Held, the application was not the act of the 
 insured, although he signed it ; that it was a 
 description by insurers' agents, and though it 
 were false, could not affect the plaintiff's right 
 to recover. Howwrd Fire Ins. Co. v. Brunner, 
 83Penn. St., 50. 
 
 231 
 
463 
 
 ESTOPPEL. 
 
 464 
 
 What is. 
 
 30. Insurers' agent examined the premises 
 and -wrote the description in the application 
 upon which the policy was issued. Insured 
 resided in the house, using a part of it as a 
 fancy, variety, confectionery store, mineral 
 water manufactory, and bath house. The ap- 
 plication did not state anything about an oven 
 and bakery, but there was one in the premises. 
 HM, an inadvertent omission te state facts 
 material to the risk did not avoid the policy, 
 unless the insured knew that the fact was ma- 
 terial. Nor would it avoid the policy if the 
 material matter was open to view, or insurers' 
 agent had notice of it. Cumberland Valley 
 MutuaZ Protection Co. v. Sehell, 29 Penn. St., 
 81. 
 
 31. Policy to B. & S., copartners, on a 
 woolen factory, assigned to F. & M., and ap- 
 proved by the company. Assigned by F. & 
 M. to P., and approved by the company. P. 
 assigned to H.. also approved by the company. 
 B. & S. paid the premiums regularly for eight 
 years, they dissolved, and S. conveyed to B. all 
 his interest in the premises insured, after which 
 B. paid the premiums regularly for seven 
 years. Stipulated: "Any person selling or 
 transferring the property or any part thereof, 
 this policy shall be void so far as relates to the 
 part sold, unless the policy be also transferred 
 to the purchaser, and the transfer accepted by 
 the president or secretaiy within twenty days 
 after sale, or before a fire happens, such assign- 
 ment to be indorsed on, or annexed to, such 
 policy." It was proved that the treasurer of 
 the company knew of the dissolution of the 
 firm of B. & 8., and of the sale by 8. to B., for 
 about seven years before the lire took place, 
 and that he continued to take, annually, the 
 premiums that became due from B. Seld, the 
 company was estopped to insist upon the for- 
 feiture. Buckley v. Garrett, 47 Penn. St., 204. 
 
 32. Certain questions set forth in a printed 
 application, among which was the following : 
 "What incumbrances on the property?" An- 
 swer, " None. The building and machinery 
 .are leased to J. Hughes, of Philadelphia." 
 The policy was made subject to the applica- 
 tion, which provided : " If any agent of this 
 company in the transaction of their business 
 shall assume to violate these conditions, such 
 violation shall be construed to be the act of 
 the insured, and shall render void this policy." 
 Held, evidence was admissible to show that 
 insured stated to the agent that there were 
 
 232 
 
 judgments against the real estate, but he sup- 
 posed they were not liens against the property 
 insured, as that was personal property; that 
 the agent stated he was of the same opinion, 
 and in filling up the answer as to whether there 
 were any incumbrances, the agent wrote the 
 word " None," after he had concurred in the 
 opinion expressed by insured. Hence, the 
 company could not treat the policy as void, on 
 the ground that the answer was untrue. Co- 
 lumbia Ins. Co. V. Cooper, 50 Penn. St., 331. 
 
 33. On stock of barley, malt and hops; 
 stipulated : " The risk shall not be increased 
 without consent of insurers." Insured used 
 the premises for the purpose of distilling whis- 
 ky, which was an increase of risk. Insurers' 
 agent examined the premises before the con- 
 tract was made. Held, a question of fact for 
 the jury to determine whether the agent ought 
 to have known from the examination he made, 
 or was told, that the premises would be used 
 for distilling, and if he did know it, the com- 
 pany must be held to have taken the risk with 
 their eyes open to the fact that distilling whis- 
 ky, as well as brewing ale, would be carried 
 on in the premises. People's Ins. Co. v. Spencer, 
 53 Penn. St., 353. 
 
 34. The court instructed the juiy that if the 
 agent saw fit to renew the policy after he ob- 
 tained accurate knowledge of the risk, the 
 company would be bound by the policy, not- 
 withstanding, the plaintiffs representations as 
 to distances were not correct. Held, a proper 
 instruction, because the agent's knowledge 
 and action was the knowledge and action of 
 the company. WitTierdl v. Maine Ins. Co., 49 
 Me., 200. 
 
 35. Policy to insured as the absolute owner 
 of the property; the fact was, he had nothing 
 but the interest of a mortgagee; but insurers' 
 agent was fully cognizant of the state of the 
 title and of the interest of insured. Held, the 
 neglect of the defendant's agent to describe 
 the interest properly would be corrected in a 
 court of chancery and the insurers held re- 
 sponsible, and the same rule must prevail at 
 law under the act of March 15, 1861, ch. 34, 
 sec. 2. Emery v. Piseatagva Fire and Marine 
 Ins. Co., 52 Me., 322. 
 
 36. The application for insurance was writ- 
 ten by the company's agent, who knew all the 
 facts about the ownership and occupancy. 
 The statute of 1861, ch. 34, sec. 2, provides 
 that an application so drawn shall be conclu- 
 
465 
 
 ESTOPPEL. 
 
 466 
 
 What is. 
 
 sive on the company. Held, a misdescription 
 in the application was no defense to the ac- 
 tion. Ciuton 0. Afonmmith Mutual JFire Ins. 
 Co., 54 Me., 170. 
 
 37. The insurer's agent wrote the applica- 
 tion, and insured signed it. A steam boiler 
 was in the building, a fact well known to the 
 agent, but he made no statement of it in the 
 application. The rules of the company pro- 
 hibited insurance on property in any building 
 in which there was a steam boiler. Beld, the 
 rules of the company could have no higher 
 effect than instructions or general regulations; 
 that the knowledge of the agent was the 
 knowledge of his principal; hence, the in- 
 surers were estopped to set up the failure to 
 state in the application the existence of the 
 steam boiler (citing Marshall c. Columbian 
 Ins. Co., 27 N. H., 157). GampbeU v. Mer- 
 chants and farmers Mvtual Fire Ins. Go., 37 
 N. H., 35. 
 
 38. Insured applied to L., defendant's 
 agent, for insurance, informed him that he 
 could not particularly describe his own or the 
 surrounding buildings, and agreed to pay L. 
 for going to make the necessary survey. L. 
 presented a blank application, which insured 
 signed. L. wrote what he considered neces- 
 sary in it, sent it to his principals, who made 
 a policy upon it, and forwarded it to insured. 
 The by-laws, part of the contract, made the 
 person taking the application the agent of in- 
 sured. Held, L. was still the agent of the in- 
 surers, and they were bound by his acts ; that 
 his neglect to incorporate in the application 
 any fact essential to the validity of the policy 
 could not be set up as a defense to the action. 
 Clark f}. Union MtUual Fire Ins. Co., 40 N. H., 
 333; Fatten v. Merchants and Farmers Mutual 
 Fire Ins. Co., id., 375. 
 
 39. The application described the property 
 as " A frame steam saw mill, situate, etc., boil- 
 er, engine, machinery and belting, contained 
 therein." There was a planing machine in 
 the building, on the same floor with the ma- 
 chinery proper, about twenty feet distant and 
 attached to it by belting and plainly visible. 
 Insurer pleaded that the presence of the plan- 
 ing machine was concealed ; that it was of a 
 class or kind of property for which a higher 
 rate of premium would have been charged. 
 Insured replied that the application was writ- 
 ten by the defendant's agent after an inspec- 
 tion of the property. Held, the replication 
 
 was- good. James River Ins. Co. v. Merritt,Vl 
 Ala., 387. 
 
 40. Insurer's agent agreed with A. for the 
 erection of a building upon land belonging to 
 the agent; and, in consideration thereof, 
 agreed to give A. title to certain realty. A. 
 entered into possession, erected a building 
 and insured it. The agent made the policy, 
 describing the building as owned by A. Held, 
 as the agent knew all the facts, the recital of 
 ownership would have estopped him to claim 
 title to the property, and therefore the compa- 
 ny could not take advantage of the fact that 
 the insured had not at the time of the loss the 
 legal estate. Southern Insurance and Trust 
 Co. v. Lewis, 43 Ga., 587. 
 
 41. " On a steam barrel factory, manufac- 
 tured barrels and materials for the same con- 
 tained therein." Stipulated : " Not liable for 
 damages occasioned by the use of camphene, 
 burning fluid, etc., unless otherwise specially 
 provided for." Insured had a barrel of ben- 
 zine in a building contiguous to the factory, 
 used by him for storing and painting empty 
 barrels. The fire originated in that building. 
 Held, the use of benzine could not be consid- 
 ered an incident to the subject insured, because 
 " materials for the manufacture of barrels " 
 necessarily include only such as are usually 
 or commonly required in the manufacture of 
 barrels. But if insurer's agent knew, at the 
 time the insurance was effected, that insured 
 were using paints and benzine in their busi- 
 ness, in the premises insured, tie company 
 must be charged with that knowledge, and 
 this was a question of fact. McFarland v. 
 Peabody Ins. Co., 6 W. Va., 425 ; Same v. ^tna 
 Fire and Marine Ins. Co., id., 437. 
 
 42. Stipulated: "The interest of the in- 
 sured in the property must he an entire, un- 
 conditional and sole ownership; if it be other 
 than that, it must be expressed in the written 
 portion of the policy." Held, insured had the 
 right to prove that after the policy was made, 
 but before it was delivered or the premium 
 paid, he Informed the company's agent that 
 he was only a part owner, that the property 
 was incumbered, and that the agent replied, 
 " It will make no difference ; that is all right." 
 If this was established, insurer would be es- 
 topped to set up the conditional interest as a 
 defense to the action. Franklin v. Atlantic 
 Ins. Co., 42 Mo., 456; Comis v. Hannibal Ins. 
 Co., 43 id., 148. 
 
467 
 
 ESTOPPEL. 
 
 468 
 
 What is. 
 
 43. Stipulated: "If the interest ia the 
 property insured be a leasehold interest, or 
 other interest not absolute, it must be so rep- 
 resented to the company and expressed in the 
 policy in writing, otherwise the insurance 
 shall be void," The insured was not the abso- 
 lute owner; the absofute title was held by 
 trustees for the use of his wife, which was not 
 stated in the policy; but the particulars of the 
 title were made known to the person to whom 
 the policy was entrusted for delivery and to 
 whom the premium was paid. Held, the com- 
 pany was estopped to contradict the descrip- 
 tion stated in the policy, for the error or mis- 
 take was the company's. Atlantic Int. Co. v. 
 WrigM, 23 111., 463. 
 
 44. The agent of insurer made the survey 
 and application ; and in the application, it was 
 stated that there was hut one tenant and that 
 the building was occupied for hardware only; 
 but the agent was fully informed as to its sit- 
 uation and occupancy. It was in fact occu- 
 pied for other purposes and by a number of 
 tenants. Hdd, the statement in the applica- 
 tion could not have misled the insurer, for he 
 was informed as to the facts ; that the agent's 
 information was information to the insurer. 
 Howard Fire and Marine Ins. Co. ■». Comick, 
 24 111., 455. 
 
 45. Insured stated to insurer's agent, that 
 machinery for making rope would be put into 
 the premises, which was done. It was insured 
 as a flax factory. Held, the description was 
 broad enough to embrace the manufacture of 
 rope; but if it was not, the company could 
 not defend on that ground if it appeared that 
 the agent told insured that the term "flax 
 factory " would embrace and permit the man- 
 ufacture of rope. Aurora Fire In». Co. ■». 
 Eddy,mi\\,'iiZ. 
 
 46. Stipulated: "If the interest in the real 
 estate be less than a fee, it must be stated in 
 the policy." The insured was asked what 
 his title was, and he said it was a fee simple. 
 The agent and the vice president of the com- 
 pany knew that he had made a mortgage 
 upon the premises to secure $10,000, and the 
 policy was made payable to the mortgagee. 
 Held, to permit the company to defend on 
 that ground would countenance the perpetra- 
 tion of a gross fraud. H(»ne Mutual Fire Ins. 
 Co. ■». Qa/rfid&, 60 111., 134. 
 
 47. Stipulated: "Gunpowder shall not be 
 kept on the premises without permission, and 
 
 234 
 
 nothing but a distinct agreement indorsed 
 upon the policy shall be considered as a wai> 
 ver of any condition or resti'iction mentioned 
 in it." At the time of the fire insured had on 
 hand a few pounds of gunpowder, kept wilh 
 the knowledge and express permission of in- 
 surer's agent, who renewed the policy, ac- 
 cepted the premium and remitted it to in- 
 surer. Held., the forfeiture was for the ex- 
 clusive benefit of insurer, who could waive 
 it if he pleased, and he could so do by writing 
 or verbally, by an agent authorized ; and that 
 this agent must be held as authorized to 
 waive it. Seaper City Ins. Co. v. Jones, 68 
 111., 458, 
 
 48. The agent of insurer made out the ap- 
 plication for the insurance. He had knowl- 
 edge of the title which insured then had. 
 Held, insurer was bound by all the statements 
 made in the application as to title and situa- 
 tion of property, unless it appeared that the 
 agent and the insured acted in collusion. 
 Bockford Ins. Co. e. Nehon, 63 111., 413. 
 
 49. The application was written by insur- 
 er°s agent, and insured signed it without 
 knowing its contents, the agent representing 
 that it was all right. It required a record to 
 be kept of the watchman's performance of 
 duty. The agent knew that no watch clock 
 was kept, and it was an established fact that 
 without one, a record of the watchman's per> 
 formance of duty could not be preserved. 
 Held, no defense to the action, for the insurer 
 must be deemed to have issued the policy 
 with full knowledge that no record of the 
 watchman's performance of duty would be 
 kept (citing Commercial Ins. Co. v. Span- 
 knable, 53 111., 55). Andes Ins. Co. c. Shipman, 
 77 111., 189. 
 
 60. The application contained an untrue 
 statement as to incumbrances upon the prop- 
 erty insured; but the agent of the company 
 knew what the incumbrances were, mis- 
 stated them, and insured signed the applica- 
 tion. Held, the insurer was estopped to urge 
 the untruth as a defense to the action, unless 
 there was collusion between insured and in- 
 surer's agent. Hartford Protection Int. Co. v. 
 Harmer, 3 Ohio St., 453. 
 
 51. H. solicited the plaintiflf to insure, ex- 
 amined the building, made a survey of it, 
 filled out and delivered a policy. Held, the 
 company could not defend on the ground that 
 there were openings in the walls, or that the 
 
469 
 
 ESTOPPEL. 
 
 470 
 
 What is. 
 
 premises were used for purposes prohibited 
 hy the terms of the policy, if the company's 
 agent might have seen the openings and 
 knew the uses to which the building was 
 put Beat V. Park Fire Ins. Oo^ 16 Wis., 
 241. 
 
 52. A. & B. as partners procured a policy 
 on their mill, etc. Stipulated: "If the prop- 
 erty insured shall be sold or conveyed without 
 the consent of this company obtained in wri- 
 ting hereon, it shall be void." A. sold his in- 
 terest to B., who desired to assign tlie policy 
 as security for a debt due by him to C. There- 
 upon B. called upon the agent of the com- 
 pany, informed him of the fact that he had 
 purchased his partner's interest, and of his in- 
 tention to assign the policy to secure the 'debt 
 to C. The agent wrote across the face of the 
 policy, " Loss, if any, payable to C, mort- 
 gagee." Seld, the forfeiture was waived and 
 the policy continued in force. Keeler o. Jfi- 
 agara Fire Int. Go., 16 Wis., 533. 
 
 53. Stipulated: "If the property be sold or 
 transferred, or any change takes place in the 
 title or possession by legal process, judicial 
 decree or voluntary transfer, this policy shall 
 be void." The policy was made to R. •' Loss, 
 if any, payable to H. & N., mortgagees." In- 
 surers' agent knew, when he renewed the pol- 
 icy, that the legal title had passed from R. to 
 the plaintiff. Held, insurers were estopped to 
 defend on the ground of alienation (citing 
 Viele V. Grcrmania Ins. Co., 36 Iowa, 9). Mi- 
 ner «. Phanix Ins. Co., %1 Wis., 693 ; Meehler 
 V. Phanix Ins. Co., 38 id., 665. 
 
 54. The application was filled up by the 
 
 company's agent, stating the title in the 
 
 plaintiff. Insurers offered a warranty deed, 
 
 which showed that the property was not in 
 
 the plaintiffs, but in McBride. The court 
 
 permitted proof, showing that the agent was 
 
 informed that the building was on the land of 
 
 McBride, "who furnished the store and the 
 
 capital, and that the plaintiff was to have half." 
 
 Held, if the agent was informed in regard to 
 
 the title, and he inserted in the application an 
 
 untruth in respect to it, the misrepresentation 
 
 could not affect the plaintifi^s right to recover. 
 
 McBride v. Republic Fire Ins. Co., 30 Wis., 562. 
 
 55. Stipulated : " Permission is granted to 
 
 light the premises with gasoline gas when the 
 
 generator is removed thirty feet from tlie 
 
 building." There was another clause in the 
 
 contract, as follows: "The generating, or 
 
 evaporating, or using within any building 
 where this policy may apply, or contiguous 
 thereto, of gasoline, benzine, naptha, or of any 
 substance for burning gas or vapor for light- 
 ing, other than the ordinary street gas or kero- 
 sene, is prohibited unless permitted in writing 
 hereon." The complaint alleged that the 
 building was lighted with gasoline, and the 
 generator was within thirty feet of the build- 
 ing, which facts were well known to defend- 
 ant's agent when the policy was made; that 
 insured was then engaged in removing the 
 burners and fixtures and putting lamps in 
 their places, for the purpose of lighting with 
 kerosene, and that the agent consented that 
 the premises might be lighted with gasoline 
 till the change could be effected. The prem- 
 ises were consumed before completing the 
 cliange. Held, it is the settled law of this 
 court that an agent of an insurance company, 
 authorized to take risks and issue policies 
 against fire, may waive, by parol, any condi- 
 tion in the policy issued by him. Winans o. 
 Allemania Ins. Co., 88 Wis., 343. 
 
 56. If the agent had authority only to re- 
 ceive and forward applications, parol evidence 
 is not admissible to show that he failed to take 
 down the applicant's statements correctly, or 
 that he changed them ; but, if the agent had 
 power to pass upon, and did pass upon, the 
 risk without submitting it to his principal, 
 and in stating the facts in the application, 
 failed to state them correctly, the applicant 
 being ignorant of the mistake, the insurer 
 would be estopped to object that he was mis- 
 led by the statements contained in the appli- 
 cation. Ayres v. Hartford Fire Ins. Co., 17 
 Iowa, 176. 
 
 57. The policy described the interest of the 
 insured as that of mortgagee. L. was insurer's 
 resident agent, and was fully authorized to take 
 risks and gram policies. He was informed 
 by the applicant of the nature of his interest, 
 that it was a mechanic's lien; but F. was the 
 partner of L., and F. drew up the application, 
 and in it described the interest of insured as 
 that of mortgagee. Insured signed the appli- 
 cation without reading it, and the policy was 
 issued, describing the interest of insured as 
 stated in the application. When the policy 
 was delivered, insured asked why it was so 
 described, and L. said that a mortgage and a 
 mechanic's lieu were the same. Held, the 
 mistake w/is the result of the agent's ignor- 
 
 233 
 
471 
 
 ESTOPPEL. 
 
 472 
 
 What is. 
 
 ance of the law, for which iasured could not 
 suflfer, and equity will relieve against the mis- 
 take of a party to a contract, in matter of law, 
 when it is produced hy his representations 
 (citing Evants o. Strode, 11 Ohio, 480; Drew 
 e. Clark, Cooke (Tenn.), 374). Longhurst v. 
 Star Ins. Co., 19 Iowa, 364. 
 
 58. The agent, who had power to accept 
 applications and issue policies, received an 
 application, but failed to state correctly the 
 facts pertaining to the title and interest of the 
 insured, and it was misdescribed in the policy. 
 Hdd, the misdescription was no defense to the 
 action. Ayers e. Home Inf. Co., 21 Iowa, 18D ; 
 Anson «. Winnegheik Inn. Co., 23 id., 84; Bar- 
 flwlorrmo v. Merchants Ins. Co., 25 id., 507. 
 
 59. The application was made part of the 
 contract, which stipulated: "Any untrue 
 statement contained in the application will 
 viti ate the policy." In it the person was repre- 
 sented as sober and temperate — that he had 
 always been so. Insurer's agent, in answer 
 to a question propounded in the application, 
 stated, that he was a fit person for insurance, 
 and recommended him for it The agent well 
 knew that the person insured was addicted to 
 the intemperate use of intoxicating liquors. 
 His death was caused by the intemperate use 
 of intoxicating liquors. Meld, although the 
 statements made in the application were un- 
 true, yet if the insurer was informed of, and 
 loiew the truth in that regard, and after such 
 knowledge received the application and pre- 
 mium and issued the policy, he must be held 
 liable; and the knowledge of the agent who 
 took the application was the knowledge of the 
 insurer. Miller e. MutuaZ Benefit Life Ins. Co., 
 31 Iowa, 216. 
 
 60. The policy prohibited keeping gun- 
 powder without permission written upon the 
 policy. Held, if the agent who issued the 
 policy knew that gunpower was kept and to 
 be kept, the contract was valid, whether per- 
 mission was indorsed or not, notwithstanding 
 a printed condition in the contract showing 
 the agent's authority was limited, for the com- 
 pany must be regarded as having known that 
 gunpowder was, and would be kept — the 
 knowledge of the agent being the knowledge 
 of the principal. It would be a fraud to per- 
 mit tlie company to make a policy which they 
 intended to treat as void in case any loss oc- 
 curred. Peoria Marine and Fire Ins. Co. e. 
 Hall, 12 Mich., 202. ^ 1 
 
 286 
 
 61. Applicant was required to state what, il 
 any, incumbrances were upon the property 
 insured; also the amount. He answered, "No." 
 There were then two mortgages upon it. The 
 company's agent admitted that he knew of 
 the mortgages, that he drew the application, 
 wrote the answers, requested insured to sign 
 it, and told insured it would not make any 
 difference if the mortgages were not men- 
 tioned. The application was made part of the 
 contract, and the answers were expressly made 
 warranties. Held, failure to disclose the mort- 
 gages was to be attributed either to the agent's 
 ignorance, negligence, or fraudulent pretense; 
 he was giving an indemnity when he knew he 
 was giving none; the va&x\nx,qv.i facit per 
 aliwm,faeit per se, applied ; that it was a fraud 
 on the insured to take the premium; hence 
 the insurers were estopped on that ground. 
 JEtna Life Stock Ins. Go. v. Olmstead, 21 
 Mich., 246. 
 
 62. Stipulated: "In all cases of application 
 for insurance, the applicant shall state the 
 whole amount of incumbrance on the prop- 
 erty, or the policy shall be void. There shall 
 be no waiver or evasion of the terms or condi- 
 tions of this policy, and no agent or servant 
 of this company has any power to waive or 
 dispense with any of the conditions printed or 
 contained in the application or in this policy, 
 except by the concurrence of the secretary in- 
 dorsed hereon or otherwise acknowledged in 
 writing by him. In case of any transfer or 
 termination of the interest of the insured, or 
 any part of his interest, by sale, contract or 
 otherwise, or any mortgage, lien or incum- 
 brance -shall attach thereto, or if the title shall 
 be in any way changed or affected after the 
 date of this policy, without such consent, it 
 shall be thenceforth void." Insured stated 
 the amount of a mortgage and the accumu- 
 lated interest to insurer's agent, who wrote the 
 answers to the questions propounded in the 
 application. In stating the amount of incum- 
 brance the agent wrote, " Yes, mortgage near 
 |5,300." The mortgage was for $5,325, with 
 seven years accumulated interest at seven per 
 cent, of which there had been only one hundred 
 dollars paid. Held, the question was not one of 
 waiver but was one of estoppel. Insured sim- 
 ply accepted such papers as were prepared by 
 defendant's agent, who had received all neces- 
 sary information to enable him to draw them 
 correctly, and the company must be deemed to 
 
473 
 
 ESTOPPEL. 
 
 474 
 
 What is not. 
 
 have acted with fliU notice of the facts, and 
 must not be allowed to urge the error or n-aud 
 of their agent as a defense to the action. 
 Michigan State Ins. Co. v. Leteia, 30 Mich., 41. 
 
 63. The fee of certain lands was in the 
 wife of insured, but he had erected upon them 
 a dwelling house, occupied by the family; and 
 he insured it in his own name. The contract 
 stipulated: •' If the interest of the insured is 
 not one of absolute ownership, and the nature 
 of the interest is not clearly defined in writing 
 hereon, then this policy shall be void." The 
 jury found specially, " That the true nature of 
 the interest of insured, and the exact condi- 
 tion of the title were stated by insured to in- 
 surer's agent, and that the agent told the 
 insured it would make no difference whether 
 the policy was made to him or to his wife." 
 HM, insured was entitled to recover, notwith- 
 standing his interest was different from that 
 described in the policy. American Central 
 Int. Co. «. McLanathan, 11 Kan., 533. 
 
 64. D. represented himself as an insurance 
 agent, solicited risks from all persons, and 
 effected insurances in several different offices, 
 taking the premiums, receiving the policies, 
 and paying over the premiums to the com- 
 panies, upon which the companies allowed 
 him a commission. He inspected the build- 
 ings, had &ee access to all parts, and commu- 
 nicated the particulars to the company. The 
 policy described the buildings as built of 
 brick, and slated. It however appeared upon 
 the trial, that one of them was not slated, that 
 the roof was of tar and felt, when the policy 
 was effected. Held, D. was not the agent of 
 the insured, but the agent of the insurers ; that 
 the misdescription was not material; but if it 
 was, the company could not take advantage of 
 it, for the mistake was the mistake of their 
 own agent In re the Unitertal Nontariff Fire 
 Int. Co., Forbe»' Claim, 19 L. R. Eq^ 485. 
 
 n. What is not. 
 
 (a) (?f the €Kt8 and conduct of the 
 jpnndpal. 
 
 1. Stipulated: "To be void in case the 
 property insured shall be alienated." Insured 
 conveyed the property, and subsequently with 
 knowledge of the conveyance, insurers ex. 
 acted payment of the deposit note. Held, this 
 did not revive the policy, for the insured was 
 
 liable upon the deposit note until surrender 
 of the policy. Neely v. Onondaga County Mut. 
 In». Co., 7 Hill, 49. 
 
 S. The policy prohibited any sale or trans- 
 fer of the property insured. A sale was made, 
 and insurers made assessments against tlie 
 policy after the sale, and collected them. 
 Held, no waiver of the condition, unless the 
 company knew of the change of ownership. 
 Finley «. Lyemning Ins. Co., 30 Penn. St, 311. 
 
 3. Defendants pleaded that the policy was 
 made upon condition, " If the interest in the 
 property insured was a leasehold or other in- 
 terest not absolute, it must be so stated in the 
 policy, otherwise it should be void ; that the 
 interest of the plaintiff was not absolute, and 
 was not so stated in the policy. To which 
 plaintiff replied, that he was seized of an ab- 
 solute estate in the premises in fee simple, in 
 right of his wife at tlie time the policy was 
 made, which was well known to defendants, 
 and truly described to them : that the descrip- 
 tion of his interest, as stt forth in tlie policy, 
 was made by the defendants, after tlie same 
 was disclosed to them ; witliout this, that the 
 condition mentioned in Uie plea was violated 
 or broken. The defendants rejoined reassert- 
 ing the breach of the condition. Held, the 
 issue tendered iti the replication was no an- 
 swer to the plea, for knowledge by insurer 
 that a warranty has been broken, at tlic time 
 it was made, does not relieve insured from 
 the consequences of the breach, nor change 
 the warranty. This case, the court S!xys, is 
 distinguishable from Howard Fire Ins. Co. v. 
 Bruner, 23 Penn. St., 50. State Mutual Fire 
 Ins. Go. V. Arthur, 30 Penn. St., 315. 
 
 4. The company defended on the ground 
 that the policy was forfeited by a violation of 
 one of its conditions. The insured offered to 
 prove that insurers assessed and collected the 
 assessment after the forfeiture. Held, a waiver 
 never occurs, unless the act relied on ought 
 in equity to estop the party. There was no 
 proof that the insurers had notice of the for- 
 feiture when they assessed and collected. 
 DiM f). Adams County Mut. Ins. Co., 58 
 Penn. 81^443. 
 
 5. The charter of the company provided 
 that the insured should be deemed a memljer 
 during the term mentioned in the policy. 
 Held, an assessment made and collected from 
 the insured durfcg the term, but subsequently 
 to the loss of the property insured, was not a 
 
 831 
 
475 
 
 ESTOPPEL. 
 
 476 
 
 What is not. 
 
 a waiver of a prior forfeiture. PMlbrook c. 
 New Snglmtd Uut. Ins. Co., 37 Me., 137. 
 
 6. One of the conditions of the policy was 
 violated and afterwards, but in ignorance of 
 that violation, insurers made assessments up- 
 on the premium note and collected them. 
 Held, they were not estopped from setting up 
 the condition and its violation as a defense to 
 the action. Hae<ird v. Franklin Mutxial Fire 
 Ins. Co., 7 R. I., 429. 
 
 7. Stipulated: "If the ship insured shall 
 be mortgaged for any debt, the insured shall 
 not have any claim for loss unless previously 
 to such loss the insured shall have delivered 
 to the secretary of the insurers an undertak- 
 ing in writing, of the mortgagee or assignee, 
 to pay all sums which might thereafter be- 
 come due from the insured to the insurers." 
 The defendant pleaded that she was mort- 
 gaged, and that plaintiff did not previously to 
 the loss deliver to insurers an undertaking of 
 the mortgagees to pay all moneys which might 
 thereafter become due to insurers in respect of 
 the ship. Replication: That defendants had 
 notice of the mortgage, and afterwards, with- 
 out requiring the undertaking, demanded and 
 received from the mortgagees all sums of 
 money which became due from the insured in 
 respect of the ship. Seld, the replication was 
 not sufficient, because it did not state matter 
 enough to establish a waiver of the condition. 
 Hughes ®. Tindall, 18 C. R, 98. 
 
 (b) Cy the acts and conduct of the 
 agent, 
 
 8. The policy was based upon certain de- 
 clarations contained in an application made 
 by the person for whose benefit the policy was 
 obtained. The plaintiff claimed that the ap- 
 plication was not filled up at the house ; that 
 when it was about to be signed, the solicitor 
 of the company put his hand over the paper 
 and directed where to sign, saying: "You are 
 to sign here. This is only a matter of form, 
 and your signing indicates only that you de- 
 sire to be insured." Held, if the answers 
 stated in the application were not substantially 
 true, the plaintiff" could not recover. U. S. 
 Dist. Ct., Cal. ; Lee v. Guardian Life Int. Co., 
 5 Ins. L. J., 26. 
 
 9. The referee found that the application 
 was made through H., an agent of the defend- 
 ant; that the policy was sent by mail to the 
 
 238 
 
 plaintiff; that the agent was informed the 
 tenant was about to move out of the premises, 
 and the house was about to be vacant, and 
 that insured had lost the policy; the agent 
 said he had a record of it at home, and there 
 would be no trouble about it. It did not ap- 
 pear that the agent had power to issue policies, 
 but it did appear he had authority to consent 
 to assignments, make surveys and take appli-, 
 cations. The policy provided: "No agent is 
 permitted to waive any stipulation or condi- 
 tion in the policy named." Held, notice to 
 the agent that the premises were about to 
 be vacant was not sufficient to estop the de- 
 fendant from defending on the ground of 
 nonoccupancy. Thayer v. Agricultural Ins. 
 Co., 5 Hun. (N. T.), 566. 
 
 10. Stipulated: "The company will not be 
 answerable for a loss arising from the use of 
 fires in buildings unprovided with good and 
 substantial stone or brick chimneys." The ap- 
 plication stated, "One chimney, one stove. 
 Stoves well secured; pipe passed through 
 crock, well secured." There was no chimney, 
 and the stovepipe was not secured by crocks. 
 The agent testified, he made the examination 
 and filled up the application; that he knew 
 there was no chimney in the building, nor 
 crock for the stovepipe. Held, the agent com- 
 mitted a fraud upon his principal, in which 
 the insured was pa/rticeps criminis; hence he 
 could not profit by the fraud. This case is 
 distinguishable from that of Howard Ins. Co. 
 s. Bruner, 23 Penn. St, 50, because in that case 
 the agent had authority to make the contract 
 and issue the policy; but in this, he had no 
 authority to do more than receive applications 
 and transmit them to his principals, who 
 founded their contracts upon bona fide appli- 
 cations. Smith v. Gash Mut. In*. Co., 24 Penn. 
 St, 320. 
 
 1 1. One person acted as agent for two com- 
 panies. Both issued policies on the same 
 property. HeUd, not- sufficient to waive com- 
 pliance with the by-law which required " sub- 
 sequent insurance " to have the consent of the 
 directors signified by statement in the policy, 
 or by indorsement signed by the secretary. 
 Forbes d. Agawam Mutual Fire Ins. Co., 9 
 Gush., 470. 
 
 12. Insured had signed a blank application 
 and transmitted it to insurers, for them to fill 
 in the answers stated in a former application. 
 Held, insured could not (in the absence of 
 
477 
 
 EVIDENCE. 
 
 478 
 
 Original and independent. 
 
 fraud) be allowed to contend that the applica- 
 tion was not tlieirs ; but the proper question for 
 the jury was, whether the insurers, in filling 
 in tlie blanks, had exceeded their authority. 
 Liberty HaU Ais. v. Sousatonie Mut. Ins. Co., 
 7 Gray, 261. 
 
 1 3. If the agent had only authority to so- 
 licit, procure and forward applications to 
 his principal, and they were subject to his 
 principal's acceptance or rejection, the prin- 
 cipal is not chargeable with notice of any 
 matter not stated in the application, though it 
 were communicated to the agent, unless the 
 agent communicated the fact omitted to his 
 principal. Bartholomeui v. Merchants Ins. Co.. 
 25 Iowa, 507; overruled hy Miller «. Mvtual 
 Benefit Life Ins. Co., 31 id., 216. 
 
 14. If the description of the property was 
 material to the risk, and it was misdescribed, 
 insured cannot recover, notwithstanding in- 
 surer's agent concurred. Continental Ins. Co. 
 V. Kasey, 25 Grattan, 268. 
 
 EVIDENCE. 
 
 (See SsTOPFEi.; Habtkb's Fbotzst; Pbircifai. utd 
 AexKT.) 
 
 I. ObIGISAL ASD nTDEPEKDENT. 
 
 II. The best must be pboduceix 
 
 III. Paeol. 
 
 (a) When admissible to vary writtng. 
 
 (b) inadmissible to vary writing. 
 
 (c) admissible to show part per- 
 
 formanr«. 
 
 (d) admissible to show intention. 
 
 (e) admissible to remove IcUent 
 
 ambiguity. 
 
 (f) admissible to estop, or correct 
 
 mistakes. 
 
 IV. Declabatioks. 
 
 (a) (>f the parties. 
 
 (b) agents. 
 
 (c) deceased persons. 
 
 (d) res gestcB. 
 
 V. Res EfTEB ALIOS ACT.*. 
 VI. CONFIDEHTIAI. COMjnjHICATIOHS. 
 
 VII. Hearsay. 
 
 VIII. ChABACTKB, BBPnTATION OR PKDI- 
 GBEE. 
 
 IX. CoirrENTS of books Ain> fafebb. 
 
 X. Opinions. 
 
 (a) When admissible. 
 
 (b) inadmissible. 
 
 XI. Immaterial and irrelevant. 
 XII. "Weight op evidence. 
 
 XIII. Withdrawing or striking out. 
 
 XIV. Objections to. 
 XV. Usage and custom. 
 
 XVI. Books, papers, letters and photo- 
 graphs. 
 XVII. Foreign Laws. 
 XVIII. Impeaching adversabt's, ob con- 
 tradicting TOUR OWN WTTNBSSEB. 
 XIX. Leading questions. 
 XX. Rbfrkshinq memory. 
 XXI. Reasons. 
 
 I. OeIGINAI ASD IKDEPENDEirr. 
 
 1. On stock of groceries. There was no 
 evidence as to the value of the goods, except 
 that given by the insured themselves. There 
 were no trustworthy books of accounts, and 
 insurers offered to show by witnesses engaged 
 in the same business at the same place, whose 
 annual sales were as large as those of the in- 
 sured ; that grocery merchants in that city, for 
 six years prior, had not carried or kept on 
 hand at any one time more than one-fifth of 
 their annual aggregate sales. Held, the evi- 
 dence was admissible. Insurance Co.v.Weide, 
 11 Wall., 439. 
 
 2. On a question of insurable interest, the 
 witness may testify that he saw the original 
 register jn the name of the owner, when the 
 ship was about to sail; also that goods were 
 bought by the insured, and that he saw them 
 go on board. Peyton v. Ballett, 1 Gaines, 363. 
 Reputation, domicile and employment of the 
 insured are admissible upon the question 
 whether the insured is an American citizen. 
 Ibid. 
 
 3. A copy of a sentence pronounced in ad- 
 mirally, under a seal of court, signed by the 
 actuary, the register being absent, with proof 
 of the seal and signature is sufficient. Oar- 
 dere v. Columbian Ins. Co., 7 Johns., 514. 
 
 4. Action for loss of goods. A witness was 
 introduced, who had been employed in the 
 store adjoining, in which were kept goods sim- 
 ilar t-o those lost. Both stores were of same 
 size, and an inventoiy had been taken of the 
 goods in that store. Held, it was proper to 
 
 S89 
 
479 
 
 EVIDENCE. 
 
 480 
 
 Original and independent. 
 
 show, as evidence for the defendant, the value 
 of the stock contained In the adjacent store. 
 Howard v. City Fire Ins. Co., 4 Denio, 503. 
 
 6. The defendants' agent had transmitted to 
 the company the papers upon whicli the policy 
 had been issued, among which was a state- 
 ment of his own as agent or attorney, in which 
 he stated that the insured did not in his opin- 
 ion have any practices or liabits which had, 
 or would impair his constitution or general 
 health. The defendants pleaded this in their 
 answer, and averred that it was false, and was 
 known to be so to the person insured, as well 
 as to the person for whose benefit the policy 
 was obtained. Held, it was proper to call the 
 defendants' agent as a witness for the plaintiff, 
 to sustain the statement. Bawls v. American 
 Mutual Life Ins. Co., 27 N. Y.,383; s. c.,36 
 Barb., 357. 
 
 6. The mast^ was asked to state what 
 caused the loss. Held, competent evidence. 
 Walsh V. Washington Marine Ins. Co., 32 N. 
 Y., 427 ; s. c, 3 Rob., 203. 
 
 7. The examining physician was asked 
 wliether he inquired of the person proposed 
 as to his pecuniary circumstances, what re- 
 sponse was given, and how far he deemed the 
 answer material in deciding to advise the ac- 
 ceptance of the risk. The question and an- 
 swer were excluded. Held, the evidence was 
 admissible, for the physician had the right to 
 say whether the pecuniary circumstances of 
 the life proposed were deemed by him mate- 
 rial, and whether he would have- advised the 
 acceptance of the risk if it had appeared that 
 the person proposed was not a man of means. 
 Valton v. Ifaiional Loan Fund Ass., 40* N. Y. 
 (1 Keyes), 31; s. c, 17 Abb. Prac.,.268; 4 Abb. 
 Dec, 437; 20 N. Y., 33; 33 Bnrb., 9. 
 
 8. The defendant offered to prove that the 
 witness sold a portion of the goods in ques- 
 tion, that he took bonds in payment, and on 
 that account charged forty per cent, more than 
 he would have charged for cash. Held, ad- 
 missible. Sturm V. Williams, 6 J. & Sp. (N. Y.), 
 325. 
 
 9. Plaintiff offered the policy, but did not 
 offer the application although it formed part 
 of the contract. Held, the policy was admis- 
 sible without the application. Cushman ®. 
 United States Life Ins. Co., 4 Hun. (N. Y.), 783. 
 
 10. Sailing orders are competent evidence 
 to prove the real destination of the ship, not- 
 withstanding they were not communicated to 
 
 the insurer. Houston v. Neuo England Ins Co., 
 5 Pick., 89. 
 
 11. Evidence that a newspaper, taken by 
 the insured, ought, in due course of mail, to 
 have been received before the policy was 
 effected ; that it was afterwards found on file 
 in its proper place, and contained the same 
 informaticm given in a letter of the insured 
 to his agent, is admissible, as tending to prove 
 that the insurer before executing the policy 
 received the same information that the agent 
 of the insured had ; and, held, if it was so re- 
 ceived, the circumstance that the letter was 
 not produced to the insurer was immaterial. 
 &reen «. Merelumts Ins. Co., 10 Pick., 403. 
 
 12. Evidence that the damage to blankets 
 was peculiar and different from damage by salt 
 water; that other blankets made by the same 
 manufacturer had given evidence of damage 
 in the same way was admissible for the insurer. 
 Bradford o. Boylston Fire and Marine Ins. Co., 
 11 Pick., 163. 
 
 13. Insured offered the certificate of a ma- 
 rine inspector and surveyor made in the course 
 of his business, for the purpose of showing 
 that the vessel was seaworthy before she left 
 her home port. The surveyor was called, who 
 identified the certificate, but said he had no 
 recollection of the examination ; that the state- 
 ments contained in the certificate were true 
 when he made them, otherwise they would not 
 have been made. Held, although the witness 
 had no independent and distinct recollection 
 of the facts therein stated, it was admissible 
 (citing Smith v. Johns, 3 Gray, 517; Critten. 
 don B. Roger, 8 id., 453). Perkins v. Augusta 
 Ins. and Banking Co., 10 id., 312. 
 
 14. A diagram of the premises, without 
 dale or signature, was accompanied by a let- 
 ter dated and signed, written by the insuied. 
 Held, admissible. BielimondmUe Seminaryt). 
 Hamilton Mut. Ins. Co., 14 Gray, 459. 
 
 1 5. Public documents are original evidence. 
 WJdton V. Albany City Ins. Co., 109 Mass., 24. 
 
 16. The insurer offered to prove an extra- 
 ordinary series of losses, under suspicious cir- 
 cumstances of other vessels, the property of 
 the same person, and mortgaged to insured. 
 Held, when knowledge, good faith or intent 
 are in issue, any other transactions from which 
 any inference respecting the quo animo may 
 be drawn are admissible; and where fraud is 
 within the issue, and is provable by various 
 circumstances, a wide latitude must be per- 
 
i81 
 
 EVIDENCE. 
 
 483 
 
 The best must be produced. 
 
 mitted in the admission of evidence (citing 
 Benham e. Gary, 11 Wend., 83), and, therefore, 
 the evidence tendered ought to have been ad- 
 mitted. Hoxie «. Home Ins. Co., 33 Conn., 21. 
 
 17. Surveys are admissible when proved 
 by the testimony of those who made them. 
 American Ins. Go. v. Francia, 9 Penn. 3t., 390. 
 
 18. Where the question was, whether the 
 reinsured had any interest in the property 
 reinsured, it was Tteld, the original policy was 
 admissible to prove that interest. Philadel- 
 phia Ins. Co. 0. Washington Ins. Co., 23 Penn. 
 St., 250. 
 
 1 9. The daughter of the plaintiff paid the 
 money for some of the articles insured, and 
 was present when others were purchased. 
 Held, a competent witness as to the value of 
 the goods burned. Continental Ins., Co., v. 
 Morton, 28 Mich., 173. 
 
 20. Invoices, bills of purchase, books of 
 account, amount of sales, inventories of stock, 
 taken immediately after the loss, are com- 
 petent evidence in a claim for damage sus- 
 tained in consequence of a removal of goods 
 from a store threatened by Are. Case v. Hart- 
 ford Fire Ins. Co., 13 111., 676. 
 
 21. The inquiry was as to a fraudulent 
 overvaluation. Held, it was competent to 
 prove, for what the insured offered to sell the 
 property. Hersey n. Merrimac County Mutual 
 Fire Ins. Co., 27 N. H., 149. 
 
 22. For the purpose of proving an insur- 
 able interest, the plaintiff offered a letter 
 written by his vendee, in which the vendor 
 was requested to insure in his own name, as 
 collateral security for the purchase money. 
 Held, original, independent evidence. Vairin 
 V. Canal Ins. Co., 10 Ohio, 223. 
 
 23. A bill of particulars of property was 
 made after the fire by the witness, her father 
 and mother, who put down all the missing 
 articles which they could then remember. 
 Held, it was admissible for the insured. City 
 Fire Ins. Co. c. Carru.gi, 41 6a., 660. 
 
 24. A copy of the searcher's report, taken 
 from the books of the custom house, was 
 offered as evidence of the goods on board. 
 Hdd, it was unnecessary to call the searcher 
 who actually searched the ship, for it was a 
 paper made by virtute of an act of parliament, 
 by an officer appointed for the purpose, and 
 lodged in the custom house as an official 
 document. Johnson v. Ward, 6 Esp., 47. 
 
 25. Stipulated: "The loss shall be adjusted 
 
 16 
 
 within three months after the capture of the 
 ship." Held, Lloyd's book, wherein the cap- 
 ture was mentioned, coupled with evidence, 
 that the defendant was a subscriber to Lloyd's, 
 a large underwriter, and was in the constant 
 habit of examining the book at Lloyd's, in 
 which captures were entered, was evidence 
 of notice of the loss. Abel e. Potts, 3 Esp., 242. 
 
 26. It became material to ascertain whether 
 the defendant knew, or had the means of 
 knowledge, that the vessel insured was " The 
 confederate steamer Georgia." He admitted 
 that he read the London Times. Heid, copies 
 of that paper containing articles on that sub- 
 ject were admissible against him. Bates v. 
 Hewitt, 4 P. & P., 1023; s. c, 2 L. R. Q. B., 
 595; 15 W. R, 1173; 36 L. J. Q. B., 282. 
 
 27. The plaintiff testified, he did not re- 
 member having entered any goods at any port 
 other than Toronto. Held, entries of goods at 
 the custom house at Toronto, made for the 
 insured, were competent evidence for the in- 
 surers. Lazare o. Phcenix Ins. Co., 8 IT. C. C. 
 P. 136. 
 
 28. The shipping list at Lloyd's stated the 
 time she sailed. Held, it was prima faeie 
 evidence against the underwriter, who must 
 be presumed to have a knowledge of its con- 
 tents, because he had access to it in the course 
 of his business. Mackintosh o. MarshaU, 11 
 Mee. & W., 116; 12 L. J. Ex., 337. But the 
 insured, in a letter ordering the insurance, 
 made an untrue statement as to the time of 
 her sailing, and the insurer, relying upon that, 
 did not examine the list. Held, the insurer 
 was not bound by the contents of the list; that 
 it was the duty of the judge, before whom the 
 case was tried, to have drawn the attention 
 of the jury to that point. Ibid. 
 
 II. The best must be peoduced. 
 
 1. For the purpose of proving that she was 
 sequestered at Para, in conformity with the 
 laws of Portugal, two edicts and the judgment 
 of sequestration, certified by the U. S. consul 
 at Lisbon, were produced and admitted in evi- 
 dence. Hdd, they were inadmissible, because 
 they were not verified by oath ; the consul was 
 not sworn ; he certified only that they were 
 truly copied from the originals; that to give 
 the certificate the force of testimony, it would 
 be necessary to show that the act of the consul 
 was one of those consular functions to which 
 
 241 
 
483 
 
 EVroENCE. 
 
 484 
 
 The best miist be produced. 
 
 the laws of this country attach fiill faith and 
 credit; that although consuls are oflScers 
 known to the law of nations, they are not en- 
 trusted with the power of authenticating the 
 laws of foreign nations; they can grant no 
 ofScial copies of them, and their certificates re- 
 specting a foreign law is not entitled to any 
 higher or different degree of credit than would 
 he accorded to their certificates of any other 
 fact. Church v. Htibbart, 3 Cranch, 165. 
 
 2. Foreign judgments are authenticated by 
 exemplification under the great seal, or by a 
 copy proved to be a true copy, or by the cer- 
 tificate of an officer authorized by law, which 
 certificate itself must be properly authenti- 
 cated ; but a certificate of the proceedings of a 
 foreign court, under the seal of a person who 
 styles himself the secretary of foreign affairs, 
 is not evidence. Church v. Subbart, 2 Cranch, 
 .i.65. 
 
 3. The property was neither measured nor 
 neighed when thrown overboard. Seld, it 
 was similar to cases of injury to sails, rigging 
 or spars, by tempest, or by cutting them away 
 in cases of jettison, the value of which was to 
 be ascertained by the jury by the exercise of 
 a sound discretion upon lawful evidence, ab- 
 solute certainty in cases of that sort being un- 
 attainable. Rogers v. Mechanics Ins. Co., 1 
 Story, 603; 2 id., 173. 
 
 4. A court of admiralty, upon the applica- 
 tion of the master, granted a warrant of sur- 
 vey. Held, a judicial proceeding, and the 
 warrant and report must be produced, or the 
 loss of the wan ant must be established under 
 a commission, in the manner usually adopted 
 for proving other facts, and not by a certifi- 
 cate of the clerk of the court; that the statute 
 or written law of another country must be 
 proved by the law itself, as written ; the un- 
 written law could be proved by witnesses ac- 
 quainted with it. Robinson v. Clifford, 3 
 Wash. 0. C, 1. 
 
 5. She put into a foreign port for repairs. 
 The American consul ordered a survey. Held, 
 the report of the surveyors was not evidence. 
 Cort V. Oelmcare Ins. Co., 2 Wash. C. C, 375. 
 
 6. It is not competent for the insured to 
 prove by the testimony of one surveyor the 
 declarations and opinions of another surveyor, 
 made while engaged about the survey. Orrok 
 V. Commonwealth Ins. Co., 31 Pick., 456. 
 
 7. The plaintiff offered to prove the contents 
 of a newspaper. Held, not admissible; the 
 
 243 
 
 proper way was to produce a copy of it identic 
 fied by a witness. Washington County Mutual 
 Ins. Co. V. Dawes, 6 Gray, 376. 
 
 8. The record of the proceedings of a for- 
 eign court of admiralty contained various 
 copies of documents, and recited that the 
 originals were found on board the vessel con- 
 demned, at the time of her capture. Hel^ the 
 record was not competent evidence of the ex- 
 istence of the original papers mentioned in it, 
 nor that they were on board at the time of her 
 capture. The original papers should have 
 been produced or the testimony of witnesses 
 procured who saw the papers on board. Mary- 
 land Ins. Co. v. Bathurst, 5 G. & J., 159. 
 
 9. The agent's disbursements for a vessel 
 cannot be proved by the sworn admissions of 
 the master ; he must be produced and exam- 
 ined like other witnesses. Neuson v. Douglas, 
 7 H. & J., 417. 
 
 1 0. Tlie insurer offered a copy of the report 
 of the surveyora. Held, inadmissible, for it 
 was nothing but a declaration or opinion ; the 
 seal of the American consul did not give it 
 the character of a deposition, nor did it make 
 the copy equal to the original. If defendants 
 wanted to avail themselves of the facts stated 
 in the survey, they should have taken the de- 
 position of the surveyors. Stephenson n. Pis- 
 eatagua Fire and Marine Ins. Co., 54 Me., 55. 
 
 11. On cargo. The plaintiff offered a doc 
 ument showing the value of the goods in New 
 Orleans, the port of destination. Held, it was 
 not legal evidence of their value. Wolf v. Na- 
 tional Marine and Fire Ins. Co., 20 La. An., 
 583. 
 
 1 2. Insured offered a duplicate of prelim- 
 inary proofs of loss, with an affidavit indorsed 
 thereon, in which it was stated that affiant 
 had mailed the original proofs postpaid to the 
 defendant. HM, not competent evidence. 
 Ouemsey v. American Ins. Co., 17 Minn., 104. 
 
 13. The plaintiff gave in evidence certain 
 papers, and the defendant offered duplicates. 
 Held, not error to exclude them. Kansas Ins. 
 Co. V. Berry, 8 Kan., 159. 
 
 14. A witness who testified upon a former 
 trial was absent from the state. Defendant 
 proved a correct transcript of former testimo- 
 ny; it was admitted that it was relevant and 
 material ; but the court refused to allow it to 
 be read. Held, no error, for the absence of 
 the witness from the state was not equivalent 
 to her death. This court refused to follow 
 
483 
 
 EVIDENCE. 
 
 486 
 
 Parol. 
 
 McGill «. Kaufman, 4 S. & R., 317. GerKauser 
 «. North British and Mercantile la*. Go., 1 
 Nev., 174. 
 
 15. The consignees wrote letters stating 
 that the master had writen to a house in Bre- 
 men that the deviation was caused by stress 
 of weather; no protest was produced, nor let- 
 ter from the master. Hdd, the court would 
 affirm the decision of the Court of Session, 
 notwithstanding the evidence would not have 
 been admitted in England. Smith v. MacNeil, 
 3 Dow, 538. (This case is imperfectly re- 
 ported and entitled to little weight.) 
 
 16. To render the outward or homeward 
 voyage legal, it was nefeessaty that there 
 should be a licenHC from the King in council. 
 The master swore Uiat there was a license but 
 that it was lost with the ship; he tlien stated 
 its content-s. Held, the parol evidence was not 
 admissible, because it was not doubted that a 
 register of the license was preserved, or that 
 the person who obtained it had a copy of it. 
 Bhind c. Wilkinson, 2 Tannt., 237. 
 
 17. The certificate of the British vice con- 
 sul at the Brazils, showing the amount for 
 which the goods were sold, was offered. Held, 
 it was inadmissible for the purpose of show- 
 ing the sale. Waldron t. Goombe, 8 Taunt., 
 162. 
 
 1 8. A ship's register was not admitted as 
 evidence of ownership. Pirie v. Anderson, 4 
 Taunt, 652. 
 
 19. The insured sought to recover in conse- 
 quence of a decree in the admiralty, fixing 
 certain salvage expenses. Held, he must pro- 
 dace the proceedings of that court. Thellti- 
 son e. Sheddea, 5 B. & P., 238. 
 
 SO. She was captured and the burden was 
 upon insured to show a license for the voyage. 
 Held, an examined copy of the order for the 
 license (the license put on board was lost), 
 and an examined copy of the license in the 
 secretary's office must be proved. JEyre v. 
 Palsgrave, 2 Camp., 605. 
 
 21. A certificate of damage made abroad 
 by Lloyd's agent is not evidence of the 
 amount of damage, though the insurer was a 
 subscriber to Lloyd's. Drake v. Marryatt, 1 
 B. & C. 474; 2 D. & R, 696. 
 
 82. The action was brought to recover pre- 
 miums paid upon the policy. Held, the pol- 
 icy was not admissible in evidence against 
 the defendant without producing the sub- 
 scribing witnesses. Barron e. Fitegerdld, 9 L. 
 
 J. (N. S.) C. P., 153; 6 Bing. (N. C), 201; 4 
 Jur., 88. 
 
 23. A witness referred to a document which 
 he identified and called a legalized copy of a 
 deposition by him, made before the British 
 consul eighteen months prior, and said that 
 any discrepancy between that and his present 
 testimony must be attributed to lapse of time. 
 Held, the document was not admissible. Al- 
 cock e. Royal Exchange Ass. Go., 13 Q. B., 292. 
 
 24. The notarial copy of her condemna- 
 tion was produced, in which was stated in 
 what respect she was defective and out of 
 repair. Held, inadmissible, for it was not un- 
 der tlie sanction of an oath. Wright v. Bar- 
 nard, 3 Esp., 700. 
 
 III. Pabol. 
 
 (a) When admissible to vary writvng. 
 
 1. The rule that parol testimony may not be 
 given to contradict a written contract is ap- 
 plied only in suits between the parties to the 
 instrument or their privies, but it does not ap- 
 ply to third persons. These may prove the 
 truth, however contradictory to the written 
 agreements of others (citing Badger o. Jones, 
 12 Pick., 371). JIfelUaster v. Innuranee Com- 
 pany of North America^ 55 N. Y., 222; s. C, 
 64 Barb., 536. 
 
 2. " On stock of hides and on tannery." 
 Subsequent insurance prohibited. At the trial, 
 another policy issued to insured by another 
 company, on hides and leather, was offered in 
 evidence. Held, insured could give evidence 
 to show that it was made by mistake of an 
 employe of the insurance company, because 
 this was a collateral fact and not to alter or 
 vary the terms of the instrument in suit. 
 Planters Mut. Ins. Co. v. Deford, 38 Md., 382. 
 
 3. Stipulated: " If the said property shall 
 be sold or conveyed or the interest of the par- 
 ties therein changed, this policy shall be null 
 and void." The insured executed an assign- 
 ment of his interest by writing absolute upon 
 its face. Held, the insured might give parol 
 evidence to show that the assignment was col- 
 lateral security for money to be advanced by 
 the assignee to the assignor. Held, also, a 
 mere nominal and not an actual change of in- 
 terest did not avoid the policy. Ayres v. The 
 Home Ins. Co., 21 Iowa, 185 ; Same v. Hartford 
 Ins. Co., id., 193. 
 
 243 
 
4:87 
 
 EVIDENCE. 
 
 488 
 
 Parol. 
 
 4. On cargo. She was registered in the 
 name of Nicholson. Brown was master. 
 Nicholson swore he bought her to accommo- 
 date Brown, who never reimbursed him ; that 
 lie never had any interest in her. But a bill 
 of sale was produced which showed that the 
 consideration was a promissory note made by 
 Brown to the order of Nicholson, indorsed 
 " and for that consideration all the title and in- 
 terest in the schooner was conveyed to Nich- 
 olson." HeM, the proof would have been 
 inadmissible if offered to affect the rights 
 of the parties to the instrument ; but the rule 
 did not apply to third parties; that the insurer 
 had the right to show that the deed was only 
 intended as a security to Nicholson for his 
 indorsement; he was not in fact the owner of 
 the vessel; that Brown was owner in fact. 
 Barry «, L&wigiana Ins. Co., 11 Martin (La.), 
 630. 
 
 5. The plaintiff assigned the policy to A., 
 who assigned it to B., who testified that he 
 had relinquished the assignment to him, and 
 that the rights under the policy had again 
 become vested in A. Seld, the plaintiffs 
 could show, by extrinsic proof, that A. had no 
 interest in the policy; that it was the prop- 
 erty of other persons at the time suit was 
 brought. Marsh v. Muir, 1 Brev., 134. 
 
 6. Action upon the following instrument : Re- 
 ceived of J. R. S., $375, same being in payment 
 of insurance in Cottton States Ins. Co. This 
 receipt being binding on said company until 
 policy is received. Defendant offered to prove 
 by the agent who made the receipt, that it was 
 the intention and understanding of the par- 
 ties that the premium should be returned if 
 the company refused to issue a policy, and 
 that the receipt should be binding until the 
 application for the policy should be acted on 
 by the company. Objection ; because one of 
 the contracting parties was dead, and because 
 the evidence offered would contradict the 
 writing. Seld, receipts for money may be 
 explained by parol (Code, § 8807) ; that this was 
 not the whole contract, therefore the rule that 
 parol evidence is inadmissible to affect the 
 writing did not apply (citing Code, § S757). 
 Scurry d. Cotton States Life Ins. Co., 51 Qa., 
 624. 
 
 (b) When inadndssile to va/ry vmting. 
 
 7. A policy was renewed January 15th. 
 244 
 
 The vessel was lost January 8th. Held, in- 
 sured could not be permitted to prove that the 
 contract was made December 31st preceding. 
 Insurance Co. v. Lyman, 15 Wall., 664. 
 
 8. On freight in the name of one person. 
 She was owned by insured and another, 
 proven by bill of sale and her register. In- 
 sured then offered to prove by parol that the 
 other person's name was inserted by mistake 
 in both documents. Seld, inadmissible, for a 
 bill of sale was indispensable. OKI v. Eagle 
 Ins. Co., 4 Mason, 172. 
 
 9. Stipulated: "If insurance shall have 
 been previously made on the property, this 
 shall be void as to all property covered by the 
 prior insurance, and a proper proportion of 
 the premium shall be returned." At the time 
 the policy was made, the president of the com- 
 pany signed a memorandum, which stated 
 that in case insurance on the property is made 
 in England, it shall supersede so much of this 
 insurauce, and one per cent, of the premium 
 shall be retained. Other or prior insurance 
 was made in England eight days after this. 
 Seld, the policy must be considered as the 
 only safe evidence of the intention ol the 
 parties, because the memorandum was ambig- 
 uous, for it might have been intended to refer 
 to the past, the present, or the future. Sogan 
 V. Delaware Ins. Co., 1 "Wash. C. C, 419. 
 
 10. Propositions asking the rate of insur- 
 ance for a voyage other than that mentioned 
 in the policy, which is clear and unambigu- 
 ous, are not evidence to show that the voyage 
 insured was to be restricted to that described 
 in the propositions. Vandercoort n. Smith, 2 
 Caines, 155. 
 
 11. Where the contract is consistent and 
 explicit, parol evidence, tending to show that 
 the policy was to be void in case of double 
 insurance, is not admissible ; and before parol 
 evidence can be received to remove a latent 
 ambiguity, the latent ambiguity must be made 
 out and shown to the court. New York Ins. 
 Co. o. Thomas, 3 Johns. C, 1. 
 
 1 2. Upon the question whether certain arti- 
 cles were free from average, evidence tending 
 to show that the agent of the insured repre- 
 sented, as a ground for taking the risk, that 
 the articles would be free from particular 
 average, was not admissible. Astor v. Union 
 Ins. Co., 7 Cow., 202. Nor could it be prov- 
 en that non-memorandum articles for the 
 same voyage obtained a higher rate of pre- 
 
489 
 
 EVIDENCE. 
 
 490 
 
 Parol. 
 
 miuDi than was charged for tlie goods insured. 
 Ibid. 
 
 13. If the policy is made for a person 
 named, and it is otherwise explicit, parol evi- 
 uence shall not be admitted to supply blank 
 places found in the policy. Turner v. Bur- 
 rows, 5 Wend., 541 ; affirmed, 8 id., 144. 
 
 14. The use of camphene was prohibited 
 by the policy, and insured was permitted to 
 prove an agreement, made by him with the 
 defendant's agent, cotemporaneoasly with the 
 execution of the policy, to use camphene as a 
 light, and that a portion of the premium paid 
 was for that privilege. Held, error ; for the 
 case could not be taken out of the rule which 
 prohibits parol evidence to vary the term of 
 a written contract ; hence the judgment must 
 be reversed. LamaU v. Hudson River Mut. 
 Ins. Go , 17 N. Y., 199, note. 
 
 15. The policy provided: "Which base- 
 ment is privileged as a cabinet shop." The 
 defendant had refused to insure, unless the 
 use of a fire place should be discontinued. 
 The plaintiff promised to discontinue it Held 
 (reversing the judgment of the court below, 
 1 Hill., 510), the promise of the plaintiff to 
 discontinue the use of the fire place was inad- 
 missible to control the legal effect of the pol- 
 icy. Alston c. Mechanics Mut. Ins. Co., 4 Hill., 
 329; lid., 510. 
 
 16. Insurers offered to prove verbal repre- 
 sentations by the agents of the insured, to 
 show that the value of the subject insured, in- 
 tended to be placed within the limits pre- 
 scribed by the policy, would not exceed a 
 given amount fleW, inadmissible to affect 
 the legal construction. Neva York Gas Light 
 Co. V. Mechanic': Fire Ins. Co., 2 Hall, 108. 
 
 1 7. The defendant offered to prove that at 
 the time policy was made, plaintiffs repre- 
 sented that the premises were in plaintiffs' pos- 
 session ; that they were not to be used for jubilee 
 exhibitions, and that no fire was on the prem- 
 ises, etc. Held, the evidence was inadmissible, 
 unless the drfendant could show that they 
 were fraudulently made, and then they were 
 not admissible unless set up in the answer as 
 an affirmative defense. Mayor of New York 
 V. Brooklyn Fire Ins. Co., 43 N. Y. (4 Keyes), 
 465; 8. c, 3 Abb. Dec., 251; 41 Barb., 331. 
 
 18. Policy on the joint lives of plaintiff 
 and his wife, payable to the survivor. Insur- 
 ers read in evidence the written application, 
 which stated that neither the parents, the 
 
 brothers nor the sisters of the wife ever had 
 consumption; but it was proved that several 
 of the brothers and sisters had died of cou- 
 sumptiou. The plaintiff offered to prove that 
 the agent of the insurers was told that they 
 understood one of the brothers of the wife 
 had died of consumption. Held, inadmissible. 
 Baker e. Some Life Ins. Co., 3 Hun. (N. Y.), 
 402; B. c.,4N.Y. S. C, 583. 
 
 19. The policy required insured to keep 
 and maintain a night watch on the premises. 
 Held, parol evidence could not be received to 
 show that the plaintiffs agreed that the person 
 performing duty as night watch should not 
 have the care of other premises at the same 
 time. Hovey v. American Mut. Ins. Co., 3 
 Duer, 554. 
 
 20. On cargo, from Boston to Archangel 
 and back to Boston. There was no return 
 cargo. It was proved to be a usage at Bostou 
 to return a part of the premium in all such 
 cases. Hdd, the usage could not be received 
 in opposition to the principle of law which 
 governed this case. Homer v. Dorr, 10 Mass., 
 26. 
 
 21. On ship and freight, procured by an 
 agent, who delivered to the broker a written 
 memorandum, stating that insured was owner 
 of one-half of both and that the policy was 
 to take effect if no insurance was made else- 
 where by the owner. Held, the memorandum 
 was not evidence to control the contract 
 Higginson v. Ball, 13 Mass., 96. 
 
 22. Statements made by insured, when the 
 policy is effected, as to the time the vessel was 
 to sail, and that the insurer said he would not 
 be bound unless she sailed as represented, are 
 not admissible to control the contract, not- 
 withstanding she did not sail until a month 
 after, and that the rate of premium, on similar 
 risks had, within that time, greatly increased. 
 Whitney v. Haven, 18 Mass., 172. 
 
 23. It was stated in the margin of a policy 
 that the ship was spoken on the 37th of 
 August. Evidence was tendered to prove that 
 a memorandum was left with the insurer, 
 wherein it was stated that she was spokeu 
 on the 20th, and that it was intended that 
 the policy should conform to that date; and 
 that " 27th " was inserted by mistake. HeM, 
 inadmissible. Ewer v. Washington Ins. Co., 16 
 Pick., 503. 
 
 24. Statements made by the insured at the 
 time the policy was made as to his intentions 
 
 245 
 
491 
 
 EVIDENCE. 
 
 492 
 
 Parol. 
 
 merely, are not representations that affect the 
 policy unless made fraudulently. Bryant v. 
 Ocean Ins. Co., 23 Pick., 200. 
 
 25. Policy insured a person named, and 
 upon it an action was brought by the insured 
 and others. Evidence was offered to prove 
 that the plaintiff owned the vessel at the time 
 the policy was made ; that the insured had 
 but a part interest in her; that the directors 
 knew of the ownership of the plaintiffs, and 
 agreed to insure for all the owners ; that it 
 was the intention of the parties in making the 
 policy as it was made, to cover the interest of 
 all the owners. Held, the evidence was inad- 
 missible. Finney v. Bedford Commercial Ins. 
 Co., 8 Met., 348. 
 
 26. Evidence tending to show that insurer's 
 agent authorized insured to make other insur- 
 ance, prohibited by the policies, was held inad- 
 missible. Conway Tool Co. ■». Miidion Siver 
 Ins. Co., 13 Cush., 144. 
 
 27. The application represented insured as 
 the owner of the property. He offered to 
 prove that the officers of the company knew 
 lie was not owner; that he applied orally for 
 insurance on his interest as mortgagee. Held, 
 inadmissible, because it would materially 
 vary the terms of the written agreement. Jen- 
 kins V. Quincy Mutual Fire Ins. Co., 7 Gray, 
 370. 
 
 28. The policy was founded upon a written 
 and printed application; and by the express 
 terms of the contract, the statements in it Were 
 warranted. Insured offered to prove that in- 
 surer's agent knew, of the facts, and that the 
 statements made in the application were not 
 correct. Held, the evidence was inadmissible. 
 Tebbetts v. Hamilton Mut. Ins. Co., 8 Allen, 569. 
 
 29. Insured offered to prove that he ex- 
 plained to the agent, who took the application 
 for the policy, the nature of his occupation of 
 both house and barn ; that they were used oc- 
 casionally while the plaintiff and his servants 
 were cultivating the farm, and at other times 
 unoccupied. The policy stipulated : " Build- 
 ings unoccupied are not covered by this policy 
 unless insured as such." Held, the evidence 
 was inadmissible. Ashworth v. Builders Mutual 
 Fire Ins. Co., 113 Mass., 433. 
 
 30. In an action upon a premium note, the 
 defendant offered to prove that at the time he 
 insured, the agents of the plaintiff said the 
 company was not insuring in Pittsburg or 
 other large cities. .&e2(2, inadmissible. Hack- 
 
 246 
 
 ney v. MlegJieny County Mut. Ins. Co., 4 Penn. 
 St., 185. 
 
 31. " On refined oil in barrels, contained in 
 the cellar under the office, and in the yard 
 attached to their premises, occupied as an oil 
 refinery and for storing oil. Lot in the ninth 
 ward, city of Pittsburg," etc. " This policy 
 does not attach to oil in the tanks." Also, 
 another policy : " On crude petroleum con- 
 taiued in three wooden tanks under ground." 
 Held, insured could not be permitted to prove 
 that the exception, " this policy does not at- 
 tach to oil in tanks," referred to the oil in the 
 tanks insured in the second policy. Weisen- 
 berger v. Harmony Ins. Co., 56 Penn. St., 442. 
 
 32. Policy issued upon certain statements 
 made in the application, all of which were 
 warranted true. The application required 
 applicant to state whether he ever had bron- 
 chitis, consumption, spitting of bloqd, or any 
 serious disease, which was answered: " None 
 of these." He was also required to slate 
 whether he had had any severe sickness or dis- 
 ease during the last seven years, to which was 
 answered: "No." The application also set 
 forth that he had not employed or consulted 
 any physician, and that no previous examin- 
 ation or application had been made for insur- 
 ance on his life, and that no company had 
 declined to issue a policy on it. The plaintiff 
 offered to prove, not that the answers set forth 
 in the application were true, but that different 
 answers were, in fact given, that they were un- 
 truly written by defendant's local agent, with- 
 out the knowledge or consent of the plaintiff, 
 or of the life insured. Held, inadmissible, be- 
 cause it cannot be supposed that the defendant 
 intended to clothe the agent with authority to 
 perpetrate a fraud upon his principal. When 
 an agent is apparently acting for his principal, 
 but is really acting for himself, or third per- 
 sons, and against his principal in respect to 
 that transaction, the relation of principal and 
 agent does not exist. Held, also, the fact that 
 the plaintiff signed the application without 
 readmg it, was no ground for admitting the 
 evidence. She was bound to know what she 
 signed, and her failure to ascertain the con- 
 tents of the application was inexcusable negli- 
 gence. By an v. World Mutual Life Ins. Co., 4t 
 Conn., 168. 
 
 33. Policy upon " a warehouse," described 
 as such, prohibited the employment of fire- 
 heat in the processes of or for the purposes of 
 
493 
 
 EVIDENCE. 
 
 494 
 
 Parol. 
 
 nianufacturiug any article of commerce. In- 
 sured offered to prove that at the time the 
 policy was made, insurer knew that the build- 
 ing was to be used for the purpose of manu- 
 facturing candy, and that fire-heat was essen- 
 tial for that purpose. Held, the evidence was 
 inadmissible, because its eifect would be to 
 change, or explain by parol, the clear and 
 significant description of the policy. Ehtner 
 v. Equitable Ins. Co., 1 Disney, 412. 
 
 34. " In case other insurance shall exist 
 upon the property insured, the policy shall be 
 void, unless consent is given in writing by in- 
 dorsement hereon." Hdd, it was not compe- 
 tent to prove that the insurance agent had no- 
 tice of the fact that other insurance existed at 
 the time he made the policy, for if the writ- 
 ing did not speak the agreement of the par- 
 ties, insured should have proceeded to have 
 it reformed. Madison Iru. Co. o. FeUovaea,! 
 Disney, 217. And this ruling is not in con- 
 flict with the case of Harris b. Ohio Ins. Co., 
 5 Ohio, 466. Ibid. 
 
 35. On schooner trading between New Or- 
 leans and any port in the West Indies, United 
 States, or Gulf of Mexico, except Eio Grand 
 or Brazos of San Jago. She was lost ou a 
 voyage between Matanzas, Cuba, and Savan- 
 na, Georgia. The plaintiff introduced his 
 written application to the defendant which 
 asked pei-mission to trade to any port in the 
 West Indies, Gulf of Mexico or United States. 
 Held, it was inadmissible to control the terms 
 of the policy. If through error or fraud the 
 contract was written contrary to the intention 
 of the parties, it was the duty of the party re- 
 lying on that fact to make it the basis of the 
 action. Lippineott v. Louisiana Ins. Co., 
 2 La. (O. S.), 399. 
 
 36. On a floating dock, called the " old dry 
 dock,'' stipulated : " This insurance is against 
 all risks." The dry dock received a ship, and 
 attempted to raise her by throwing off the 
 water with a pump attached to the engine of 
 the dock; but from a defect in the dock it- 
 self or a sudden leak, or the breaking of one 
 of the pumps, or some obstruction in tie val- 
 ves, the machinery became incompetent to 
 raise the dock. The ship was removed, and, 
 notwithstanding every reasonable exertion, 
 the dock sank. The fires were put out by the 
 water and everything went down and became 
 a total loss. Held, the defendants could nut 
 be permitted to prove a usage that harbor 
 
 risks and river risks were not included in the 
 policy, for the contract was against " all risks." 
 Marey v. Sun Mutual Ins. Co., 11 La. Au., 
 748. 
 
 37. The defendant offered to prove the 
 statement or representations of insured made 
 to insurer's surve3'or. The loss occurred 
 about six years after the survey. Held, inad> 
 missible. Kentucky and Louisville Ins. Co. v. 
 Southard, 8 B. Mon., 634. 
 
 38. Insured was permitted to prove that 
 when she received the policy, she told the 
 agent slie would leave the premises tempo- 
 rarilj'. The policy stipulated that it should 
 cease if the premises should become vacant. 
 Held, the evidence was inadmisible. Ct. of 
 App. Ky. .^tna Ins. Co. v. Buras, 5 Ins. L. J., 
 69. 
 
 39. Neither usage nor express agreement 
 can be admitted to explain, modify or cou- 
 trol a written contract. Illinois Mutual Fire 
 Ins. Co. V. emu, 13 Ills., 89. 
 
 40. The policy did not stipulate against 
 the use of an additional fire in the building, 
 but the insurer was permitted to prove, that 
 the insured promised verbally, that no other 
 fire than that in use at the time the policy 
 was made should be permitted in the build- 
 ing. Held, improper, for it was incorporating 
 a verbal agreement into the contract. Schmidt 
 V. Peoria Marine and Fire Ins. Co., 41 111., 295. 
 
 41. Stipulated: "To be void if the prem- 
 ises be vacated by removal of the owner or 
 occupant for a period of more than thirty days 
 without immediate notice to the company and 
 consent indorsed hereon." The house became 
 vacant January 12th, and was not occupied up 
 to the time of its destruction by fire February 
 13th. The plaintiff alleged that the agent told 
 him at the time the policy was made, it would 
 be unnecessary to give notice in case the 
 house became vacant. The court below in- 
 structed the jury that the failure to give the 
 notice would not affect tlie policy, if the de- 
 fendant or its agent waived such notice at the 
 time the policy was made, or at any other 
 time before the loss. Held, error ; for what was 
 said prior to or at the time the policy was 
 made was inadmissible to enlarge, modify or 
 contradict the words of the policy. Hartford 
 Fire Ins. Co. v. Webster, 69 111., 392. 
 
 42. The policy stipulated for an annual pre- 
 mium of $58.04, "to be paid on or before Oc- 
 tober 25th, in each and every year from the date 
 
 247 
 
495 
 
 EVIDENCE. 
 
 496 
 
 Parol. 
 
 of and during the continuance of this policy, 
 ■which annual payment is to be made in man- 
 ner following: an annual loan of $29, and a 
 cash semi-annual premium of $14.81, to be 
 paid on October 2oth and April 25tb, and 
 for these considerations the company agree 
 to pay the sum insured, the balance of the 
 year's premium, if any, and all notes or 
 credits for premiums thereon, and all other 
 indebtedness of the insured to the company 
 being first deducted." The agent stated that 
 a failure to pay promptly at the time named 
 in the policy would make no difference, pro- 
 vided payment was made in a short time after 
 it was due. The insured died May 7th, and July 
 20th, following, the agent addressed a letter to 
 the insured, calling attention to the fact that 
 the premium was in arrear since April 25th, and 
 requested a remittance without delay. Hdd, 
 neither the letter nor the agent's statements 
 could be received to control the stipulations 
 of the written contract. SvUivan v. Ootton 
 States Life Ins. Co., 43 Ga., 423. 
 
 43. A policy was written from Archangel 
 to Leghorn ; but the insurer sought to show 
 by parol that the adventure was to begin at 
 the Downs. Seld, the evidence was inadmis- 
 sible. Kaine» v. Knightly, Skin., 54. 
 
 44. The defendant proposed to prove that 
 at the time of effecting the policy, some of the 
 insurers objected to take the risk " on ship or 
 ships," and that the broker made certain state- 
 ments restraining the effect of the policy. 
 Held, inadmissible. Weston v. Ernes, 1 Taunt., 
 115. 
 
 45. Stipulated: "In case the insured shall 
 depart beyond the limits of Europe, the policy 
 shall cease and determine. Proviso: he shall 
 be at liberty to visit Tangiers or any other 
 port within the Mediterranean. Plea; he de- 
 parted beyond the limits of Europe otherwise 
 than by visiting Tangiers, or any other port 
 within the Mediterranean. Plaintiff sought 
 leave to reply on equitable grounds, namely, 
 that at the time the policy was made, it was 
 .igreed between the parties that he might visit 
 ports and places out of Europe. Held, it could 
 not be allowed ; that there was a plain dis- 
 tinction between this case and Wood v. Dwar- 
 ris, 11 Exchr., 493; 25 L.J. Ex., 217. Rets 
 V. Scottish Equitable Life Ass. Co., 2 H. & N., 
 19; 3 Jur. (N. S.), 417; 26 L. J. Ex., 279. 
 
 46. Policy effected in Glasgow with defend- 
 ers' agents, G. and B. A loss happened. The ' 
 
 248 
 
 policy showed an indorsement of £400 on ac- 
 count. The pursuers offered to prove that no 
 money was in fact paid, but that an arrange- 
 ment had been entered into by the agents of 
 the respective parties for the payment of that 
 sum. Held, the evidence was inadmissible, 
 there being no allegation of fraud on the part 
 of the defenders. Anderson d. Forth Marine 
 Ins. Co., 7 C. C. S., 268; 17 Scot. Jur., 133. 
 
 (c) When admissihle to show part 
 performance. 
 
 4tl. Life coinpany for an extra premium to 
 be paid annually on or before January 22d, per- 
 mitted life insured to pass by sea in decked 
 vessels from any port in the United States 
 north of latitude 36, to and from any port iu 
 North or South America (Chagres excepted), 
 and to reside in California and the country ad- 
 jacent. He went across the country -oia Vera 
 Cruz, remained there eight or ten days, tbeuce 
 through Mexico to the port of San Bias on tlio 
 Pacific, remained there three weeks, thence by 
 sea to San Francisco, where he resided for 
 about three years before he died. Held, evi- 
 dence was admissible to show that when the 
 policy was made, the company knew that he 
 intended to take the route which he did take; 
 and that after he resided in California, the com- 
 pany, with that knowledge, received the pre- 
 miums, thereby inducing the insured to be- 
 lieve that the breach of warranty, if any it was, 
 had been waived. Benin v. Oonnectimt Mutual 
 Life Ins. Co., 23 Conn., 244. 
 
 48. Stipulated: "Not binding until actual 
 payment of premium." Held, insurers may 
 waive the condition, and parol testimony is 
 admissible to establish the waiver. Pino v. 
 Merchants Mvt. Ins. Co., 19 La. An., 214. 
 
 49. The policy prohibited all increase of 
 risk, and the insured admitted that the risk 
 was increased; but proof was given to show 
 that the agent of the insurer consented, and 
 this proof consisted of the agent's declarations 
 which recognized the conditions of the con- 
 tract after he knew the risk was increased, 
 and his, admission that the contract was in 
 force after he had 'knowledge of the fact. 
 Held,\ht evidence was admissible; for the rule 
 which excludes parol testimony does not ap- 
 ply to evidence offered to prove that the coii- 
 tract has been discharged, or that part per- 
 formance of it has been dispensed with (cit- 
 ing Greenlears Ev., 302, 304; Stai-kie's Ev., 
 
rt97 
 
 EVIDENCE. 
 
 4P8 
 
 Parol. 
 
 574; Fleming «. Gilbert, 8 Johns., 598; Mer- 
 rill e. Ithaca & O. R. R. Co., 16 Wend., 586; 
 Phil. Ev., Cowen and Hill's and Edwards' 
 notes, 2d vol., 692, and note 505 ; Williams o. 
 Bank of U. S., 2 Pet., 96; Bevino. Connecticut 
 Mutual Life Ins. Co., 23 Conn., 244; Rath- 
 borne V. City Ins. Co., 31 id., 193). Ftete e. 
 Oermania Ins. Co., 36 Iowa, 9. 
 
 (d) When admissible to show inten- 
 tion. 
 
 50. If any doubt arise on a written contract, 
 the acts of the insured, although not known to 
 the insurer, may be admitted to show that the 
 intentions of the insured were different from 
 what afterwards he pretends they were. Law- 
 rence c. Sebor, 2 Caines, 203. 
 
 51. Policy in the name of the agents on ac- 
 count of the owners, ffeld, insured not being 
 named in the policy, extrinsic evidence was 
 admissible for the purpose of showing the 
 persons for whom the contract was made. 
 Oatlett V. Pacific Ins. Co., 1 Wend., 561. And 
 that the term " owners " was equivalent to 
 "whom it may concern." Ibid. And that it 
 was competent to show by extrinsic evidence 
 that the word " owners " was not intended to 
 embrace all the owners, but such of them 
 only as caused the insurance to be effected ; 
 that such evidence did not contradict the con- 
 tract, but made certain that which was uncer- 
 tain by the general phraseology of the policy. 
 Hid; aflSrmed, 4 Wend., 75. 
 
 52. Insured offered evidence to show that 
 defendants had insured the property for years, 
 and knew the purpose for which the building 
 was erected, the manner in which it was occu- 
 pied, the general character of its contents, and 
 the nature and extent of the risk. Held, ad- 
 missible for the purpose of showing that the 
 policy was intended to cover the hazards inci- 
 dent to the occupation of the building. Mayor 
 of New York v. Exchange Fire Ins. Co., 42 N. 
 
 'y. (3 Keyes), 436; 8. c, 9 Bo;3., 424; 3 Abb. 
 Dec, 261 ; 34 How. Pr., 103. 
 
 53. The language used to specify the pur- 
 poses for which the building insured might be 
 occupied was ambiguous. Held, it was proper 
 to give evidence tending to show that the in- 
 surers knew of the use and occupation, be- 
 cause that was a circumstance to be consid- 
 ered in determining the intention of the parties. 
 Reynolds v. Commerce Fire Ins. Co., 47 N.Y., 597. 
 
 54. On dwelling house and wood house. A 
 building had been erected, covered by one 
 roof, divided by a loose partition, two-tliirds 
 of which was used for wood, the other part as 
 a carriage house. Held, eVidence was admis- 
 sible to show that the whole building was 
 called by the tenants and neighbors, "The 
 wood house." White ». Mutual Fire Ass. Co., 
 8 Gray, 566. 
 
 55. Where insured represented that there 
 are in each room casks kept full of water: 
 Held, it was competent to prove, that in the 
 general use of language among manufacturers, 
 the whole of one loft or story appropriated to 
 a particular department was called a room, 
 although divided by partitions with doors in 
 them. Daniels v. Hudson Siver Fire Ins. Co., 
 12 Cush., 416. 
 
 56. Facts and circumstances delwrs the in- 
 strument are admissible, in order to discover 
 the intention of the parties. Stacey v. Frank- 
 lin Fire Ins. Co., 2 W. & S., 506. 
 
 57. Policy, "For whom it concerns." Held, 
 it was competent for the plaintiff to show who 
 had the insurable interest and the authority 
 the insured had for procuring the insurance, 
 and evidence of statements made by the owner 
 to the person who procured the insurance wos 
 admissible, because it tended to prove autlior- 
 ity to make the insurance. Stephenson v. Pis- 
 catagua Fire ainrf Marine Ins. Co., 54 Me., 55. 
 
 58. Insured in their application, stated: 
 " We want an insurance of $3,000, in addition 
 to $4,000 now in city companies." Held, the 
 language did not state clearly that the insur- 
 ance was in the interest of the plaintiffs or of 
 parties having liens upon the property; hence 
 evidence was admissible to show for whom 
 that insurance had been made. Planters Mut. 
 Ins. Co. ■». Deford, 38 Md., 382; Frederick 
 County Mut. Ins. Co. v. Same, id., 404. 
 
 59. Policy to J. on bulk sides, contained in 
 Magill & Lanes' brick pork house. Another 
 company made their policy in favor of Magill 
 & Lane, on bulk meat, hams, lard and mess 
 pork in tlie same building. Subsequently, 
 and while the former policy was in force, an 
 indorsement was made upon the second, as 
 follows: "The above risk is transferred to 
 sides and shoulders belonging to J." He!4, 
 parol testimony was admissible to show that 
 the property embraced by the second policy 
 was not to be insured by the first. Boots v. 
 Cincinnati Ins. Co., 1 Disney, 138. 
 
 249 
 
499 
 
 EVIDENCE. 
 
 500 
 
 Parol. 
 
 60. Policy to " Mrs. E. W. B, Executrix," 
 who was executrix of the will of her late hus- 
 band. The property insured had been devised 
 by him to herself and children. The person 
 who applied for the insurance handed to in- 
 surer's agent a slip of paper, upon which was 
 written: "Elizabeth W. Boyle, Executrix," 
 and stated : " It is wanted to cover the estate 
 of the late S. 8. Boyle." Held, upon an appli- 
 cation to reform the instrument, it was proper 
 to prove the conversation of the parties, both 
 at the time the policy was made and after the 
 loss occurred, for by that the court would be 
 informed whether the instrument was made 
 according to tlie intention of the parties. 
 Qlole Ins. Co. v. Boyle, 21 Ohio 8t., 119 ; af- 
 firming 8. c, 1 Cin. S. C, 444. 
 
 61. On account of whom it may concern. 
 Meld, evidence to show who was intended to 
 be benefited by the policy does not alter, vary 
 nor add to Ihe written conti-act. Bell v. West- 
 em Marine and Fire Ins. Co., 5 Rob. (La, 
 433 ; Same v. Firemen's Ins. Co., id., 446. 
 
 62. The person insured was prohibited by 
 the terms of the policy from passing south of 
 the 36th degree of north latitude in the Uni- 
 ted States, between June Ist and November 
 1st, without consent indorsed upon the policy. 
 October 2d the company's agent gave a receipt 
 for the extra premium required for a residence 
 in the prohibited territory, and October 10th 
 insurers issued the permit necessary to com- 
 ply with the terms of the policy, but it was 
 post dated November 1st. Seld, post dating 
 the permit did not prevent it from operating 
 according to the intention of the parties. 
 Walsh V. .Mtna Life Ins. Co., 30 Iowa, 133. 
 
 63. The memorandum or slip of paper 
 upon which the particulars of the risk were 
 written was del ivered to insurers and was ad- 
 mitted in evidence. Seld, while it was to be 
 regarded as a nullity, if ofiered for the pur- 
 pose of establishing a contract, it was still 
 admissible for many other purposes, one of 
 which was for the purpose of showing the in- 
 tention of the parties. lonides v. Pacific Fire 
 and Marine Ins. Go:, 6 L. R. Q. B., 674;' 25 L. 
 T. (N. S.), 490; affirmed in Ex. 7 L. R. Q. B., 
 517; 41 L. J. Q. B., 190; 21 W. R., 23; 26 L. T. 
 (N. S.), 738. 
 
 (e) When admdssible to remove latent 
 
 64. Warranted to sail with sea letter and 
 250 
 
 without a register. Hdd, parol evidence was 
 admissible to explain what was meant by the 
 term sea letter. Bleght n. Bhinelander 2 Johns., 
 532 ; reversing s. c, 1 id., 193. 
 
 65. On their three and a half story brick 
 building, slate roof, coped, occupied as a 
 patent cordage manufactory, situate No. west 
 corner of First and South Eighth streets, 
 Williamsburgh, etc., and on main shafting 
 and fixtures, $1,000; and on lignum vitse in the 
 cellar of said building, $1,000. The evidence 
 showed that at the time the insurance was 
 made, insured owned two brick buildings, each 
 on the opposite corners of South Eighth and 
 First streets, one of which was occupied as a 
 patent cordage factory, the other as a block 
 factory. Both were on westerly corners of 
 Eighth and First streets. The cord- 
 was the southwesterly corner, the 
 the northwesterly comer, 
 hich contained the lignum 
 fting was burned; the block fac- 
 tory was saved. The defendant contended 
 that the two letters "No.," preceding the 
 words "West corner of First and South 
 Eighth streets, were an abreviation of the 
 word north, and being so read, the block fac- 
 tory was the building insured. Held, a latent 
 ambiguity raised by extrinsic evidence, pre- 
 sented by the fact that there were two build- 
 ings on west corners of First and South Eighth 
 streets, alike in every respect except the cel- 
 lars, both the property of the insured ; hence 
 extrinsic evidence was admissible to remove 
 the ambiguity, and for that purpose it was 
 proper to prove what took place between the 
 person who made the application and took 
 the answers ; that the word " No." could not 
 be regarded as an abbreviation for either num- 
 ber or north. Biirr v. Broadway Ins. Co., 16 
 N. T., 267. 
 
 66. On stock of fancy goods, toys, and other 
 articles in his line of business. Held, evidence 
 was admissible to show whether fireworks 
 were in his line of business, but it was not 
 proper to call witnesses as experts to state 
 their opinions on the question. They must be 
 confined to the fact whether fireworks consti- 
 tuted a part of the trade. Steinbaeh v. La Fay- 
 ette Fire Ins. Co., 54 N. Y., 90. 
 
 67. The policy described the property in- 
 sured as in barn number one, and barn num- 
 ber two, now occupied by applicant Held, 
 it was competent to show, by extrinsic evi- 
 
SOI 
 
 EVIDENCE. 
 
 502 
 
 Parol. 
 
 dence, -what barns the parties intended sliould 
 be within the description. Bowman v. Agri- 
 cultural In». Go., 2 N. Y. S. C, 261. 
 
 68. The policy described the subject in- 
 sured, " contained in McHenry's yard, situa- 
 ted on the south side of Dickerson street, east of 
 Front street, between Mead and Arch streets, 
 Philadelphia," The street east of McHenry's 
 yard was known as Arch street. Tronl street 
 was immediately west of the yard, and Arch 
 sti-eet was about two miles north of McHen- 
 ry's yai-d, running parallel with Dickerson 
 street. Held, the intention of the parties, and 
 surrounding circumstances can always be 
 heard to identify the subject insured. Tonk- 
 eri Ins. Co. v. Hoffman Fire Iiis. Co., 6 Rob. 
 (N. T.), 316. 
 
 69. The policy was written, " From August 
 1, 1854 to August 1, 1854." It was indorsed : 
 "Date August 1, 1854. Expires August 1, 
 1859." Held, it was a question for the juiy to 
 determine by all the facts properly in proof, 
 at What time the policy was to expire, whether 
 in 1854 or 1859. Liberty Hall Association v. 
 Housatonie Mutual Ins. Co., 7 Gray, 261. 
 
 70. The policy contained no description of 
 the subject insured, but referred to an appli- 
 cation for that description, and the applica- 
 tion described it as "A stock of household and 
 kitchen furniture, owned by Daniel Beatty, 
 contained in a frame building owned by ap- 
 plicant and occupied as a boarding house and 
 grocery." The evidence showed that the 
 goods burned were owned by insured in a 
 bouse at Dancansville, Blair county. Held, 
 the court had not the right to say, as matter of 
 law, that the goods were not burned in the 
 house described in the application. Beatty v. 
 Lycoming County Ins. Co., 52 Penn. St., 456. 
 
 71. " On hay and grain in the hay house in 
 the meadow." There were two buildings in 
 the meadow in which hay was kept, one usu- 
 ally called " The hay house," and the other 
 " The barn." Held, evidence was admissible 
 to show which was intended, for an ambiguity 
 raised by extrinsic evidence may be removed 
 by proof of the same character. Lycoming 
 Mut. Ins. Co. V. Bailer, 67 Penn. St., 108. 
 
 72. Insured procured a policy upon goods 
 and merchandise contained in a building des- 
 ignated. Subsequently he procured another 
 policy upon a stock of merchandise in the 
 chambers of the same building. Held, a lat- 
 ent ambiguity, and evidence was admissible 
 
 to prove that the goods in the chambers were 
 not intended to be included in the first policy; 
 and that intention being proven, the defendant 
 here was held liable for the whole loss of 
 the goods in the chambers. Storer v. Elliot 
 Fire Ins. Co., 45 Me., 175. 
 
 73. If there is any uncertainty as to the 
 meaning of the language used, parol proof is 
 admissible to put the court in the place of the 
 parties and to ascertain their intentions (citing 
 1 Greenlears Ev., sec, 382). Lancey v. Phcenix 
 Fire Ins. Co., 56 Me., 563. 
 
 74. " On charter $650, on primage $3,650, 
 on property on board ship $1,500, at and from 
 New York to San Francisco. She was lost 
 on tlie outward voyage, and was then under 
 two charters, one requiring her to carry coal 
 and the other merchandise from New York to 
 San Francisco, and another to carry a cargo 
 of guano from Chincha Islands to Hamburg 
 or Rotterdam. Held, charter party was in- 
 sured ; that extrinsic evidence proved the ex- 
 istence of two charters, either of which an- 
 swered the call in the policy, and this was a 
 case of latent ambiguity, to remove which ex- 
 trinsio evidence was admissible. Melclier v. 
 Ocean Ins. Co.. 59 Me., 217. 
 
 75. D. & Co. applied for insurance on tan- 
 nery, and stated, " We propose an insurance 
 of $3,000 in addition to $4,000 on the same in 
 city companies, and $1,000 on bark in addi- 
 tion to $500 now on same." There was no in- 
 surance to D. & Co., but there was insurance 
 of $3,000 in the names of D. & A., as trustees, 
 who had a lien upon the property for pur- 
 chase money, and another for $500 on the 
 bark. Held, evidence was admissible to de- 
 termine whether it was the interest of D. & 
 Co., or that of D. & A., which was referred to 
 in the application. Planters Mutual Ins. Co. 
 n. Deford, 38 Md., 383 ; Frederick County Mu- 
 tual Ins. Co. V. Same, id., 404. 
 
 76. The complaint was founded upon an 
 oral agreement, to insure, and to execute and 
 deliver a policy on tobacco owned and held 
 by him in store. Held, such a policy would 
 be construed to protect the interest of persons 
 who had tobacco stored with insured ; that if 
 such would not be the unaided construction 
 of the words, they would be of such doubtful 
 meaning as to let in extrinsic evidence to 
 show for whose benefit the insurance was in- 
 tended. Strohn v. Hartford Fire Ins. Co., 33 
 
 Wis., 648. 
 
 351 
 
503 
 
 EVIDENCE. 
 
 604 
 
 Parol. 
 
 77. D. and W. were general partners under 
 the firm name of D. & Co., who, with three 
 others, were interested in a particular adven- 
 ture, of which D. & Co. had the control and 
 rnanagement. Insurance was made upon it 
 in the name of D. & Co. Held, the evidence 
 raised a latent ambiguity; hence, evidence 
 was admissible for the purpose of showing 
 whether the insurance made was for D. and 
 W. only, or for all who had an interest in the 
 adventure. Garruthers v. Shedden, 6 Taunt., 
 13; 8. c, 1 Marsh., 416. 
 
 78. The policy was effected in the name of 
 Gray, Wilson & Co., as agents; but the firm 
 who effected it was known as the house of 
 " Gray & Co." Held, proper to show that the 
 persons composing the firm of Gray, Wilson 
 & Co. also conducted business at another 
 place in the name of Gray & Co. Dickson v. 
 Lodge, 1 Starlc., 226. 
 
 70. On ship Minerva. Neither her mas- 
 ter's nor her owner's name was mentioned. 
 There were two ships of the same name. Held, 
 insured could not recover unless he could 
 prove that tlie ship lost was intended by both 
 parties as the ship insured. Lester v. Scott, 
 Faculty Dec, 1808 to 1810, p. 483. 
 
 ( f ) WAen admiss'iMe to estop, or cor- 
 rect mAstdkes. 
 
 80. On the life of the wife of the insured, 
 predicated upon an application, partly printed, 
 in which the following questions and answers 
 were inserted : " Has the party ever had any 
 serious illness, local disease or personal in 
 jury; if so, of what nature, and at what age?" 
 Answer — " No." And as to the ages of parents 
 when they died, these questions were inserted : 
 "Mother's age at death?" Ans. — "Forty." 
 "Cause of her death?" Ans. — "Fever." 
 The mother died at twenty-three, not of fever, 
 but of consumption. Held, the insured had 
 the right to prove that the application was 
 filled up by the company's agent; that in re- 
 ply to the questions quoted, he was told that 
 nothing was linown about the cause of the 
 mother's death, or her age when it occurred ; 
 that the wife was too young to know or re- 
 member anything about it, and the husband 
 had never known her; that there was an old 
 woman present when the application was 
 made, and the agent questioned her as to the 
 252 
 
 matters referred to, and from information ob- 
 tained from her, he filled in the answers, 
 which were untrue in fact. And it being so 
 proven, insurers must be estopped to insist 
 upon the untruth as a defense to the action. 
 Insurance Go. ■c. Wilkinson, 18 Wall., 222; s. c, 
 2 Dil. Cir. C, 570. 
 
 81. Evidence is admissible to show that the 
 answer, as written down by the company's 
 agent, when he took tlie application for insur- 
 ance, was not the answer given by the appli- 
 cant, notwithstanding the application was 
 signed by the applicant. Insurance Go. v. 
 JUnkone, 21 Wall., 152. 
 
 82. W., an agent for the company, accepted 
 the risk. The blank application was filled in 
 by W. and signed by insured, in which it was 
 stated that the distance between an adjacent 
 sawmill and the house insured was about fifty 
 feet; it was, in fact, five feet nearer. There 
 was nothing said in the application about the 
 occupancy of contiguous buildings, but it was 
 stated that buildings were on each side of the 
 dwelling house, from sixty to seventy feet. 
 The agent who filled up the application was 
 well acquainted with the risk and its sur- 
 roundings. Insured was an ignorant person, 
 but slightly acquainted with the English 
 language, and relied upon the agent to make 
 the description. The policy provided that it 
 was made and accepted in reference to the 
 proposals and conditions annexed. Held, if 
 the agent who made the survey was as well 
 acquainted with the premises as was the in- 
 sured, the latter was not responsible for con- 
 cealment or misrepresentation made with 
 reference to the premises. The employment 
 of the agent, and the circumstances under 
 which the survey was made, were matters of 
 of fact for the jury. Both v. City Ins. Go., 6 
 McLean, 324. 
 
 83. In the application signed, this question 
 was asked : " What incumbrances, liens and 
 mortgages are upon the property ? " Answer — 
 " None." There was, at the date of the policy, 
 a $3,000 mortgage on the property. Held, a 
 defense to the action ; but, insured had a right 
 to show that the company's agent filled up 
 the application in the absence of the plaintiff, 
 and that application and policy were brought 
 by the agent to insured, who signed without 
 reading it, being assured by the agent that it 
 was all right ; that the company's agent made 
 no inquiries about incumbrances, and insured 
 
505 
 
 EVIDENCE. 
 
 50G 
 
 Parol. 
 
 made no statement in respect to them. Oeib v. 
 InternatiofuU Ins. Co., I Bil. Cir. C, 443. 
 
 84. The application or slip delivered by 
 the insured to the insurer is not evidence to 
 show the intention of the parties different 
 from that expressed in the policy. Dow •». 
 Whetten, 8 Wend., 160. But it is proper for 
 the purpose of establishing a misrepresenta- 
 tion ; and in equity it may be used to correct 
 the policy. Ibid. 
 
 85. Policy stipulated for a perfect and un- 
 incumbered title; and if incumbered, to be 
 disclosed and specified in the policy. Two 
 persons made joint application to insurer's 
 agent for insurance upon a«building used as a 
 tannery, and the stock therein ; separate sums 
 on each. One was the owner of the building, 
 the other of the stock. Insurer's agent knew 
 the precise interest which each had in the 
 property. He accepted and approved the ap- 
 plication, and, at his own suggestion, filled 
 up a policy purporting to insure them as joint 
 owners of the tannery and stock. Held, it 
 was competent to prove that the persons in- 
 sured stated to the agent at the time the policy 
 was made, that one was the owner of the 
 building and the other of the stock, and that 
 the policy was made to both jointly at the 
 agent's suggestion; and, that the insured were 
 entitled to recover. I'eck v. New London Coun- 
 ty ittU. Inn. Co., 22 Conn., 584. 
 
 86. The application and policy described 
 the property insured as " his house," "and the 
 policy stipulated: "To be void if the interest 
 of the assured is not absolute." Insured had 
 nothing but an equitable estate. Seld, insured 
 had the right to prove that insurer's agent was 
 informed of the particulars of tlie title, and 
 that in filling out the application he used his 
 own language. Held, aho, the parol matter 
 was not merged in the writing, for if the 
 parol matter was true, then the writing was 
 not the contract; and it was admissible on the 
 ground that upon the statement of title, the in- 
 surer considered and described the property 
 as the property of the plaintiff. Hough v. City 
 Fire Ins. Co., 29 Conn., 10. 
 
 87. The application was made part of the 
 policy. It did not state certain mortgages 
 that were upon the property, nnr did it state 
 truly how the building was used or occupied. 
 Held, evidence was admissible to prove that 
 insurer's agent knew of the mortgages and as 
 to how the buildings were used and occupied; 
 
 that insured signed the application in blank, 
 and insurer's agent afterwards filled it up from 
 memory, and it was never afterwai-ds shown 
 to insured. Howard Ins. Co. v. Bniner, 23 
 Penn. St., 50. 
 
 88. The declarations of the insurer's agent 
 giving a construction to the written portion 
 of the policy are admissible, and the company 
 is estopped to contradict tliat construction. 
 Aurora Fire Ins. Co. v. Eddy, 55 III., 213. 
 
 89. One Holmes, familiar with the property 
 and title, had been asked by insured to get in- 
 surance upon it. He wrote about it to Folsom, 
 insurer's general agent, who issued policies 
 in ordinary cases. Folsom replied, " You make 
 out an application for Ives Bros, in the Com- 
 mercial, give a correct diagram and full de- 
 scription of the mill, etc., also how the fur- 
 nace is situated, and I will forward it to the 
 company for approval or rejection." Holmes 
 made the application, set forth the title as fee 
 simple without incumbrance, signed the name 
 of insured to it, sent it to Folsom, who trans- 
 mitted it to insurers, who issued the policy. 
 Insured had no estate but a bond for a deed. 
 Held, insured had the riglit to prove that he 
 never signed the application, and knew noth- 
 ing of its contents, and that Holmes was fa- 
 miliar with his title and the condition of the 
 property. Held, also, if Holmes did know the 
 condition of the property and the true state of 
 the title, insurer was estopped to contradict 
 the title stated in the application, because the 
 statements were the statements of insurer's 
 agent, notwithstanding, by the terms of the 
 policy. Holmes was to be regarded as the 
 agent of insured. Commercial Ins. Co. v. Ives, 
 56 111., 402. 
 
 90. The company agreed to be answerable 
 for mistakes in the survey made by its agents. 
 There was error in the application written by 
 insurer's agent. Held, evidence was admissi- 
 ble to show whether the agent, in filling out 
 the application, had accurately stated the an- 
 swers of the Insured. May v. Buckeye Mut. 
 Ins. Co., 25 Wis., 291. 
 
 9 1 . Insurer defended on the ground that the 
 title was misrepresented in the written appli- 
 cation ; but insured offered and was permitted 
 to prove that insurer's agent was informed as 
 to the exact state of the title ; that he wrote the 
 application and misstated the fact. Hdd, the 
 evidence was admissible for the purpose of 
 establishing a mistake in the application, 
 
 25-1 
 
507 
 
 EVIDENCE. 
 
 508 
 
 Parol. 
 
 ■which occurred through the carelessness or 
 fVand of the company's agent, and for which 
 insurers were answerable; for the mistake of 
 the agent is the mistake of the principal. Mcr 
 Bride d. Republic Fire Ins. Co., 30 Wis., 562. 
 
 92. The policy was written upon a steam 
 saw mill, boiler, engine, machinery and belt- 
 ing contained therein. There was in the saw 
 mill a planing machine. Insured offered 
 pr«of to show that insurers' agent was told 
 that the policy was required to cover the saw 
 mill and machinery; that the agent visited it 
 and inspected it; that he saw the planing ma- 
 chine, and made inquiries about it. Held, the 
 evidence was admissible ; that it was proper 
 for the jury to determine from it whether the 
 parties intended to insure the planing machine. 
 Jamei River Int. Go. n. Merritt, 47 Ala., 387. 
 
 93. The policy set out recited that, " It had 
 been issued upon a proposal whereby it was 
 declared that J. (the person whose life was in- 
 sured) had not had any fit or convulsion since 
 childhood, or any disease of the lungs or heart, 
 or any other disease or disorder tending to 
 shorten life." Defendant pleaded ; that said J., 
 since childhood, and before making the policy, 
 had epileptic fits, and also a disease tending 
 to shorten life, to wit, delirium tremeni. Held, 
 a good plea. But the plaintiff replied, equit- 
 ably, that plaintiff had been induced to effect 
 the policy in consequence of the defendant 
 nndertaking that all insurances should be un- 
 questionable except where fraud was prac- 
 ticed in obtaining them, and that no fraud had 
 been practiced by plaintiffs in obtaining this 
 policy. JETeM, a good replication ; and, that a 
 prospectus, issued by authority of the com- 
 pany, although it did not appear that plaintiff 
 had seen it before the policy was made, was 
 admissible to support the replication, if it 
 stated that all insurances should be unques- 
 tionable except for fraud ; for it was addressed 
 to all customers and applied to all Insurances. 
 WlieeUcm o. Eardisty, 8 El. & Bl., 232; 26 L. J. 
 Q. B., 265. 
 
 94. Plea that the policy was made upon the 
 express condition that if any statement or alle- 
 gation made in the declaration upon which 
 the policy was based were untrue, or if the 
 insurance should have been obtained through 
 any misrepresentation, concealment, or untrue 
 averment, then the policy should be null and 
 void. Averment; that the declaration did con- 
 tain false and untrue statements in this, that a 
 
 234 
 
 proposal to insure the same life had been made 
 to and accepted by the Commercial Assurance 
 Company, whereas in ti-uth and in fact, none 
 had been made or accepted. Replication upon 
 equitable grounds; thai before the policy was 
 entered into, defendants published to plaintiff 
 and others their intention to carry on the busi- 
 ness of insurance upon lives, and that the de- 
 fendants therein stated and represented to per- 
 sons who should effect insurance with them, and 
 to the plaintiff, that all insurance which shonld 
 be effected by such persons, or by the plaintiff 
 with the defendants, and among others, the 
 policy in the declaration mentioned should be 
 indisputable, except in cases of fraud; that 
 the policy was made to the defendants in con- 
 sequence of and in tlie faith, of that statement, 
 and by reason of the promises, it was in equity 
 indisputable except in cases of fraud; that the 
 alleged false and untrue statement in the plea 
 mentioned was not fraudulent, and that there 
 was not in the declaration and statement men- 
 tioned, any fraudulent allegation. Bejoinder 
 repeated substantially what was stated in the 
 plea, and continued, that the policy was made 
 upon the basis of the proposal and declaration 
 and not otherwise, and upon the condition in 
 the plea set forth; that at the time the policy 
 was made there was no promise or undertak- 
 ing by the defendants that the policy should 
 be indisputable, except in cases of fraud; nor 
 was there before the making of the policy any 
 such representation or statement, except what 
 was contained in the prospectuses to the pub- 
 lic, in which it was stated that all policies 
 effected with the society should be indisputa- 
 ble except in cases of fraud." Ileld, the re- 
 joinder was bad, that the court under the com- 
 mon law procedure act of 1854 would deal 
 with the policy as if the terms of the prospec- 
 tus had beeu embodied in it lliat the repli- 
 cation was a good, equitable answer to the 
 plea, and that the plaintiff was entitled to 
 judgment Wood v. I>marri%, H Exchr., 498; 
 25 L. J. Ex., 129. 
 
 95. The defendant's agent made and trans- 
 mitted a diagram of the buildings to the head 
 office. They were described in it as detached. 
 But they were connected with other build- 
 ings. JTeM, the plaintiff was entitled to show 
 that the company's agent visited the premises 
 and had full knowledge of their situation in 
 respect to adjacent buildings. Somers «. Mhe- 
 noeum Fire Ins. Co., 9 L. C, 61. 
 
509 
 
 EVIDENCE. 
 
 510 
 
 Declarations. 
 
 IV. Declakations. 
 
 ! (a) Of the parties. 
 
 1 . Offers of settlement are admissible, unless 
 it appeai-s that they were confidential over- 
 tures of pacification, or expressly stated to be 
 made without prejudice. Townttnd o. Mer- 
 chants IiM. Oo., 4 J. & Sp. (N. Y.), 172; s. c, 
 45 How. Pr., 501 ; s. c, affirmed, 56 N. Y., 655. 
 
 2. Where the question was, whether the 
 person insured, and who had recovered of his 
 insurer, intended to cover the interest of a 
 person not named, it was held, hin account 
 current, charging the person not named in 
 the policy with the premium, was evidence 
 against himself to prove the intention. Sfil- 
 Ufnberger v. Beaeom, 9 Penn. St., 108 ; Fleming 
 V. Insurance Co., 12 id.. 391. 
 
 - 3. Letters authorizing and directing a per- 
 son to effect insurance are admissible for the 
 purpose of proving that the person who ef- 
 fected it did so in tlie capacity of an agent. 
 Newson «. Douglast, 7 H. & J., 417. 
 
 4. It appeared that appellant had offered 
 appellee $500 for a settlement of the case, 
 proof of which was given before the jury. 
 Held, error; but as the court was satisfied 
 with the judgment, it would not reverse. 
 111. b. C. Teutonia Life Ins. Co. c. Beck, 7 
 Chi. Leg. News, 190. 
 
 5. Printed matter, containing the rules of 
 insurer, with respect to the transaction of its 
 business, distributed generally, is admissible 
 against the company; and, the fact, that the 
 policy holder was not aware of the ezislance 
 of such printed matter, at the time the cause 
 of action arose, is immaterial. Walshv.^tna 
 Life Ins. Co., 30 Iowa, 183. 
 
 6. Policy to the wife for the benefit of her- 
 self and child, stipulated: "The statements 
 and declarations of insured, made in the ap- 
 plication, are hereby made a part of this con- 
 tract, and if any of said declarations or state- 
 ments are found untrue, the policy shall be 
 void." The application stipulated : " The 
 above are true and fair answers to the fore- 
 going questions, and any untrue or fradulent 
 answers or suppression of facts, in regard to the 
 above named person's health, will render the 
 policy null and void." The suit was brought 
 by tlie widow and child jointly, and the de- 
 fendant offered to nrove certain admissions 
 
 made by the widow, which were rejected by 
 the court below. Held, error; for there is 
 nothing in sec. 8784 of the code which 
 changes the old rule governing this question. 
 If the parties have a joint interest in the 
 matter in suit, whether as plaintiffs or de- 
 fendants, an admission made by one is, in 
 general, evidence against all. Groeul. Ev., 1, 
 174; Phillips Ev., 1, 378. Southern Life Ins. 
 Co. V. Wilkinson, 53 Ga., 635. 
 
 7. A letter in which tlie writer speaks of a 
 ship as his own is not conclusive against him 
 as to ownership. Evidence may be given to 
 prove who were the owners. Tulloch v. Boyd, 
 1 Holt, N. P., 487 ; s. c, 7 Taumt., 472 ; 1 Moore, 
 174. 
 
 8. Action was brought for the use of R.,. ' 
 whose declarations were offered in evidence 
 in the cause, and rejected on the ground that 
 he could be called and sworn as a witness. 
 Held, error; for he was the real plaintiff in 
 the cause; hence, his delarations were admisj 
 
 I sible. Boss «. Commercial Union Ass. Co., 2(J 
 U. C. Q. B., 559. 
 
 (b) Of agents. 
 
 9. The plaintiff was allowed in the cross 
 examination of one of the defendant's wit- 
 nesses to ask, whether D., the general travel- 
 ing agent and supervisor of the defendant's 
 business in the southern states, did not, after 
 the death in question, and after he had made 
 an examination into the claim, express an 
 opinion that it should be paid. Held, the 
 opinion of an agent, based on past occur- 
 rences, ought not to have been received as the 
 admission of his principal (citing Packet Co. 
 o. Clough, 20 Wall., 528). Insurance Oo. v. 
 Mahone, 21 Wall., 152. 
 
 10. Testimony was given, that the master 
 had signed a bill of lading. An invoice was 
 produced for the voyage insured; but the tes- 
 tamentary declaration of the master, taken at 
 Chagres, dated the day after the invoice and 
 bill of lading, stated that there was no in- 
 voice or bill of lading made. Held, it was 
 admissible, for it was the declaration of the 
 plaintiff's agent in relation to the business 
 under his management, and was evidence 
 against the principal. Blagg v. PJuxnix Ins. 
 Co., 3 Wash. C. C, 5. The rule in the case of 
 Walton V. Shelly, 1 Term, 298, is not authority 
 in the United States. Ibid. 
 
 255 
 
511 
 
 EVIDENCE. 
 
 612 
 
 Declarations. 
 
 11. Evidence of what tlie broker said to 
 the insurer, when he delivered the order for 
 insurance, is admissible. Livingston ■o. Dela- 
 fleld, 1 Johns., 523. 
 
 1 2. The defendants alleged that by mutual 
 consent the policy was canceled; and it was 
 proved that the insured referred the insurers 
 to W., as a person who would settle the mat- 
 ter. Held, it was competent to prove conver- 
 sations subsequently had between W. and the 
 officers of the company on that subject, and 
 evidence that W. agreed to cancel the policy 
 at a particular time, was admissible. Bedell 
 V. Oommereial Mut. Ins. Co., 3 Bos., 147. 
 
 13. The defendant's agent employed C. as a 
 subagent to deliver the policy and receive the 
 premium. He was interested to earn his com- 
 missions as a broker, and sent to the plaintiff to 
 notify him that the policy was ready. The 
 plaintiff went to C.'s office to procure a change 
 in the policy, and found him unwell in an 
 adjoining office. C. directed another person 
 to receive the plaintiff^s communication, who 
 took the memorandum and put it in the pol- 
 icy, where it was seen by C. Held, all which 
 occurred between the parties at that time was 
 admissible against the defendant. Kelly v. 
 Commonwealth Ins. Co., 10 Bos., 83. 
 
 1 4. The plaintiff offered to prove that the 
 defendant's secretary acknowledged, the morn- 
 ing after the fire occurred, that the building 
 was insured at the time of the fire. Held, it 
 was not independent evidence, because it was 
 not res gestm; nor was it evidence contradict- 
 ing the secretary's statements, because upon 
 that point his statements were not material. 
 First Baptist Church «. Brooklyn Fire Ins. Co., 
 28 N. Y., 158; s. c, 23 How. Pr., 448. 
 
 15. Evidence was admitted tending to show 
 that defendant's agent admitted that proof of 
 loss had been received. Held, the admissions 
 of an asent are receivable only when they are 
 a part of ther«« gestae. If they do not accom- 
 pany the transactiou in which the agent is en- 
 gaged within tlie scope of his authority, they 
 are not admissible. These declarations were 
 narrations of a preceding fact. It was there- 
 fore error to receive them, and for this error 
 only the judgment was reversed. N. T. C. of 
 App. Dean v. .^tna Life Ins. Co., 5 Ins. L. 
 J., 185; s. c, 2 Hun. (N. T.), 358; 4 N. Y. S. 
 C, 497. 
 
 16. Action on a premium note. Defense: 
 " It was procured through false and fraudu- 
 
 2o6 
 
 lent representations." Proof: " D. was agent 
 to solicit risks, receive and transmit applica- 
 tions, take policies and deliver them, and to 
 receive cash, and premium notes, for which he 
 was paid a commission on the premiums re- 
 ceived. He solicited defendant to insure his 
 vessels, and assured him that the company's 
 capital was $300,000, all paid in, and invested 
 according to law. Relying upon these repre- 
 sentations, defendant made the applications, 
 accepted the policies, and delivered the pre- 
 mium notes." Held, evidence of the represen- 
 tations of D. were admissible; it was clearly 
 within the scope of his authority to answer 
 inquiries concerning the condition and prop- 
 erty of the corporation, and its ability to fulfill 
 contracts with those who were about tu accept 
 policies; and if defendants were injured by 
 his misconduct or fraud, they could resort for 
 redress to the persons who clothed him with 
 power to act in their behalf, and who received 
 the benefits resulting from his agency (citing 
 Poster s. Essex Bank, 17 Mass., 479 ; Fuller v. 
 Wilson, 3 Q. B., 58; Story on Agency, sec. 
 308). Fogg v. Oriffln, 2 Allen, 1. 
 
 1 7. The declaration of an agent made while 
 engaged in the transaction of the business of 
 the principal, and relating thereto, are admis- 
 sible in evidence (citing Hays v. Hynds, 28 
 Ind., 31). Heller v. Crawford, 37 Ind., 279. 
 
 18. A witness was permitted to testify that 
 G. said he was the agent of the insurance com- 
 pany; that he tendered the policy to G. and 
 demanded the repayment of the premium; 
 that G. refused the policy and refused to pay 
 tlie money; that G. said he had filed no certifi- 
 cate, as required by the statute, at the time the 
 policy was issued, but that one was after- 
 wards filed; that G. further stated that he 
 countersigned the policy. Held, whatever the 
 agent does in the lawful prosecution of the 
 business of the ag«ncy is the act of the prin- 
 cipal whom he represents ; and, when the acts 
 of the agent are admissible, his declarations 
 and admissions, respecting the subject matter, 
 will also bind the principal, if they are made 
 at the time ; but, the declarations or admissions 
 of an agent bind the principal only in regard 
 to a transaction /er»e< opus (citing 1 Greenleaf 
 Ev., sec. 113). Union Central Life Ins. Co. v. 
 Thomas, 46 Ind., 44. 
 
 19. The agent of the company, it seems, 
 made oral statements about the subject matter 
 in controversy. Held, his declarations were 
 
513 
 
 EVIDENCE. 
 
 514 
 
 Declarations. 
 
 admissible in evidence. Mutual Hen^ Life 
 Tn». Co. «. Cannon, 48 Ind., 364. 
 
 20. A witness testified: "I wrote the letter, 
 of which this is a copy, by direction of the 
 solicitor of the company." Htld, tlie drsifl 
 was evidence of an act done by the company, 
 and the answer to the letter was not admissi- 
 ble. Rawlins v. Deabormtgh, 8 C. & P., 321; s. 
 c, 2 M. & Bob., 328. 
 
 21. Tlie agent wrote letters to his principal 
 in which he rendered an account of the trans- 
 action performed for his principal. Beld, 
 they were not admissible as evidence against 
 the principal. Langhorn <o. JJinutt, 4 Taunt., 
 511 ; KaM c. Jansfn, id., 56S ; Reyner o. Pear- 
 ton, id., 663. 
 
 22. The defendant had moved to defer the 
 trial on an affidavit made by D., in which it 
 was stated tliat T>. subscribed the policy in 
 question for, and nn account of, the defendant. 
 Held, the affidavit was evidence upon the trial 
 for the plaintiff to support the execution of 
 the instrument; that the mere affidavit of an 
 agent would not be evidence of itself, but 
 when produced by the defendant and used for 
 the purpose of putting off the trial, he must 
 be presumed to adopt its contents. Johnson, 
 «. Ward, 6 Esp., 47. 
 
 (c) Of deceased persons. 
 
 23. The defendant offered to prove that the 
 plaintiff's husband, the person whose life was 
 insured, had declared, subsequently to the 
 making of the policy, that for several years 
 prior to his application he had been subject 
 to very severe headiiches, and that wlien so af- 
 flicted he used large quantities of laudanum. 
 Held, inadmissible, notwithstanding the de- 
 ceased died from an overdose of laudanum ^ 
 taken to relieve headache. Mvlliner t. Guar- 
 dian Mutual Life Ins. Co., 1 N. Y. S. C, 448. 
 
 24. Life policy assigned November 4, 1869. 
 Insured died March 21, 1871. The defendant 
 offered the acts and declarations of the in- 
 sured made prior to the effecting of the policy. 
 Held, not admissible, for this question has 
 been conclusively settled in this state and 
 cannot now be regarded as open to discussion 
 (citing Rawls v. American Mututal Life Ins. 
 Co., 27 N. Y., 383; Swift v. Massachusetts 
 Mutual Life Ins. Co., 2 N. Y. S. C, 303; Bliss 
 Life Ass., Sec. 363). Edington v. Mutual Life 
 In*. Co., 5 Hun. (N. Y.), 1. 
 
 17 
 
 25. Defendant offered the declarations of 
 the deceased made shortly before the issuing 
 of the policy to show the cause of the party's 
 lameness. Held, they were admissible (re- 
 versing s. c, 3 N. Y. S. C, 303). Swift «. Mass. 
 aehutetts Mutual Life Ins. Co., 5 Ins. L. J., 53. 
 
 26. The wife had made certain written 
 statements in the application ia respect to her 
 good health. The policy was made for the 
 benefit of tlie husband. Held, letters written 
 and declarations made by her to third persons 
 shortly before the application were evidence 
 against the plaintiff. Kdsey v. Universal Life 
 Ins. Co., 35 Conn., 235. 
 
 27. Policy on the life of A. (o his wife, for 
 her use and benefit. The application was 
 signed by her husband. The defendant, for 
 for the purpose of contradicting the state- 
 ments made in the application, offered to 
 prove certain declarations made by the hus- 
 band while he negotiated a surrender of the 
 policy. Held, inadmissible, unless the hus-- 
 band acted as the wife's agent in making the 
 surrender; that in absence of proof upon that 
 point, they were mere hearsay, and the fact 
 that the person who spoke the words was 
 dead did not affect the rule of law. frater- 
 nal Mutucd Life In*. Co. «. Applegate, 7 Ohio 
 St., 293. 
 
 28. " Warranted insured does not now ex- 
 ceed the age of fifty-nine years." Held, the 
 declarations of the person insured were not 
 evidence, nor could the declaration of in- 
 surer's agent, expressing himself satisfijed ia 
 respect to the age, be received. Weatropp «. 
 Sruee, Batty, 155. 
 
 (d) Jies gestw. 
 
 29. Policy against death by accident only, 
 stipulated : " Ko claim shall be made in re- 
 spect of an injury unless the same shall bd 
 caused by some outward and visible means, 
 of which proof satisfactory to the company 
 can be furnished." It was alleged that the 
 person whose life was insured, accidentally 
 fell down stairs, was severely injured and 
 died from the effects of the fall. Ko witness 
 saw him fall, but some days prior to his death 
 he told his wife and son that he had fallen, 
 down the back stairs and hurt himself very 
 badly, that he had hit the back of his head 
 in falling. Held, the evidence was admis- 
 sible and sufficient to make the insurer liable. 
 
 857 
 
515 
 
 EVIDENCE, 
 
 516 
 
 Res inter alios actse. 
 
 Dissenting, CliflEbrd and Nelson, JJ. Insur- 
 ance Go. v. Mosdy, 8 Wall., 397. 
 
 30. In coming from the room occupied by 
 the deceased, Bums said the man had shot 
 himself. The death of Burns was proved up- 
 on the trial. Held, following the reasons and 
 principles of the decision of the supreme 
 court in the case of Insurance Co. v. Mosely, 
 8 Wall., 337, the declaration of Burns was 
 part of the res gestm, and as such it was ad- 
 missible. Newton v. Insurance Co.. 2 Dil. Cir. 
 C, 154. 
 
 31. Duplicate receipts given by the receiv- 
 ing officer of the vessel, for the goods laden, 
 are part of the res gestts; and, upon proof of 
 his handwriting, are admissible for the pur- 
 pose of showing the number of cases taken on 
 board. Sturm v. Atlantic Mut. Ins. Go., 6 J. & 
 S. fN. T.), 281. 
 
 32. Policy against death by accident. In- 
 sured was at work in a foundry August 10th, 
 when he became suddenly sick, unable to 
 work, and so remained till October 9th, when 
 he died. Meld, it was competent to prove, for 
 the purpose of establishing an accidental in- 
 jury, that deceased stated to a physician, called 
 to prescribe for him, that he had received an 
 injury to his back and side by a fall, notwith- 
 standing the physician testified he conld not, 
 without the statements of deceased, have de- 
 termined the cause of his sickness (citing 
 Barber b. Merriam, 11 A.11en, 332; Fort n. 
 Brown, 46 Barb., 366). Dabbert v. Travelers 
 Im. Co.. 3 Cin. Sup. Ct., 98. 
 
 33. The defendant insured the life of 
 plaintiffs wife for the benefit of plaintiff. 
 The policy was made July 12, 1869. She died 
 April 13, 1870. A witness was called, who 
 testified that she knew the wifb for five years 
 next preceding her death; that about July 
 20, 1869, one of the witnesses' family died of 
 consumption, and the deceased wife referring 
 to tiiat death said : " This is the way I ex- 
 pect to go." The witness was then asked: 
 " What did the plaintiff's wife say was the 
 matter with her?" Rdd, the wife was not a 
 party to the record and therefore her declara- 
 tions could not be admitted on that gr<iund ; 
 that she was not a party in interest, and so 
 they were not admissible on that ground; 
 she was not her husband's agent and therefore 
 they were not admissible on that ground ; and 
 this case is to be distinguished from the case 
 of Aveson v. Lord Kinnaird, 6 East, 188, for 
 
 258 
 
 the declarations in that case were made be- 
 tween the making of the application and the 
 delivery of the contract. It is also to be dis- 
 tinguished from the case of Kelsey ■». Univers- 
 al Life Ins. Co., 35 Conn., 225; for in that case 
 the declarations tendered were made shortly 
 prior to the application; and in both cases 
 the declarations were considered so near the 
 application that they were regarded as res 
 gestx. Washington Life Ins. Go. t. Haney, 10 
 Kan., 525. 
 
 34. " On the life of a woman warranted in 
 good health." She was found in bed at 
 eleven o'clock in the day time shortly prior 
 to the issuing of the policy; she then stated 
 that she was " very poorly; that she had been 
 to Manchester the Tuesday before ; her hus- 
 band had been insuring her life ; that she was 
 not fit to go to Manchester; that it would be 
 ten days before the policy could be returned, 
 and she was afraid she could not live till it 
 was made and then her husband could not get 
 the money." Heid, the evidence was admis- 
 sible though the declarations were not made 
 to a physician. Aveson v. Kinnaird, 6 East, 
 188. 
 
 T. Ees inter alios act.*:. 
 
 1. Representations made to one insurer are 
 not evidence for another insurer upon the 
 same risk. EUing v. Scott, 2 Johns., 157. 
 
 2. The survey of a ship is not evidence in 
 chief for the insured upon the question of sea- 
 worthiness. Saltus V. Commercial Ins. Co., 10 
 Johns., 487. 
 
 3. Plaintiffs sought to recover back money 
 paid upon an accident policy to the admin, 
 istrators of H., and alleged that the policy 
 was issued in pursuance of a fraudulent com- 
 bination between the company's agent, the 
 defendant W., and L., after the deatli of H. 
 Held, tlie declarations of the agent, W. and 
 L. were not competent. Bailway Passengers 
 Ass. Co. V. Warner, 1 N. T. S. C, 21. Add. 
 
 4. The defendants offered to prove by en- 
 tries made in their books, that the policy was 
 canceled. Held, properly rejected, because 
 entries made by defendants in their own 
 books could not affect the plaintiff's rights. 
 Dean -e. JEtna Life Ins. Co., 2 Hun. (N. Y.), 
 358; B.C., 4N. Y. 8. C, 497. 
 
 5. The declarations of the administrator, 
 made prior to his appointment, are not admis- 
 
517 
 
 EVIDENCE. 
 
 618 
 
 Confidential coiumuiiications. 
 
 sible in an action brought by him. Cashman 
 r. ITitittd States Life Ins. Co., 4 Hun. (N. Y.), 
 783. 
 
 6. The defendants offered to show the quan- 
 tity of goods kept by other dealers at the same 
 time and in the same town. Helii, inadmissi- 
 ble (citing Phoenix Fire Ins. Co. e. Philip, 13 
 Wend., 81). Totonsend «. Merehantt Ins. Co., 
 4 J. & Sp., 173; s. c, 45 How. Pr., 501 ; Same 
 e. yarragansetf Ins. Co., 4 J. & Sp., 170; s. c, 
 46 How. Pr., 40. AfBrmed, 66 N. Y., 655. 
 
 7. The declarations of the purchaser and 
 mortgagee, though in possession of the prem- 
 ises at the time of the fire, are not admissible 
 against the insured. Kingsley c. New JSng- 
 iand Mutwa Fire Ins. Co., 8 Gush., 393. 
 
 8. Insurer, for the purpose of showing a 
 fraudulent loss, proved that insured had pro- 
 cured nine other ressels to be insured, eight 
 of which had been lost; and insured then ten- 
 dered proof that insurers of those eight vessels 
 had paid the claims, without raising any 
 question on the ground of fraud. IlelcU, in- 
 admissible. Hoxie V. Home Ins. Co., 33 Conn., 
 471. 
 
 9. S. was appointed by insurers to investi- 
 gate the loss. He made a report to the com- 
 pany, and appended to it an affidavit of the 
 plaintiff. Meld, neither the contents of the 
 affidavit nor of the report were evidence for 
 the plaintiff generally. Lgeoming Countg Ins. 
 Co. c. Sehre/ler, 44 Penn. St, 269. 
 
 10. Policy for account of plaintiff. The 
 defendant offered to prove the declarations of 
 W., made while he was in charge of the boat, 
 that he was an owner; also, his subsequent 
 declarations that he burned the boat, ffeld, 
 not admissible. Eureka Ins. Co. c. Sobinson, 
 5C Penn. St, 356. 
 
 11. The declaration of a stockholder, a 
 director of the company, not made while act- 
 ing in the business of the company, cannot be 
 received as evidence, because it does not come 
 from the agent of the company, but from a 
 person who was not acting in that character. 
 PoUeys o. Ocean Ins. Co., 14 Me., 141. 
 
 1 2. The insurance company offered a pam- 
 phlet, containing private instructions to 
 agents, for the purpose of showing that the 
 agent had not authority to act in the premises. 
 Held, inadmissible. Mississippi VaBey Life 
 Ins. Co. V. Nealand, 9 Bush., 430. 
 
 1 3. Two policies, payable to C. at a date men- 
 tioned in case he should live, but in the event 
 
 of his death prior to that time, then they were 
 payable to the plaintiff as trustee for certain 
 persons named as beneficiaries. Held, there 
 was no joint interest between C. and the bene- 
 ficiaries; tlierefore, the admissions and dec- 
 larations of C. were not admissible as evidence 
 in the cause. Svers v. Life Association, 59 
 Mo., 429. 
 
 14. A. made claim against the defendants 
 for loss of his own ; he also made proof of loss 
 in behalf of B. The defendants sought to in- 
 troduce in B.'s action against them the record 
 between them and A., for the purpose of show- 
 ing that he had made an excessive claim 
 against them in that case. Held, inadmissi- 
 ble, being res inter alios o^cs. Henderson v. 
 Western Fire and Marine Ins. Co., 10 Rob. 
 (La.), 164. 
 
 15. The auctioneer's account of sales is not 
 evidence of the damaged value of goods sold, 
 unless the sales were made with notice to in- 
 surers. Hoffman v. Western Fire and Marine 
 Ins. Co., 1 La. An., 316. 
 
 16. A representation was made to insurer, 
 whose name was written before defendants, 
 but not the first on tlie policy. Held, res inter 
 alios acttB. Bell v. Carstairs, 3 Camp., 543 ; 14 
 East, 374. 
 
 17. Policy to P. & S. referred to an appli- 
 cation, which stated that the property be- 
 longed to P. and A. (the husband of S). It 
 appeared that the agent who filled up the ap- 
 plication never made any inquiries about the 
 ownership, but assumed to fill it up on his 
 own knowledge, without consulting insured, 
 who never made any representations of any 
 kind about the ownership. The defendant 
 called the agent to identify the application, 
 and asked him whether the policy was issued 
 on it. Held, the evidence was inadmissible, 
 for he was not the agent of insured. Parker 
 e. Amaeon Ins. Co., 34 Wis., 363. 
 
 VI. CoMFTOiarriAL communications. 
 
 1. The defendant offered to prove by certain 
 physicians, who had attended the deceased in 
 a professional character, that he was affiicted 
 with numerous diseases, the knowledge of 
 which tliey obtained by their attendance on 
 him as physicians. Held, the evidence was 
 inadmissible, for the Revised Statutes, vol. 3, 
 406, sec. 73, prohibits a disclosure of " any in- 
 formation which the physician may have ac- 
 
 259 
 
519 
 
 EVIDENCE. 
 
 520 
 
 Hearsay — Of character, reputation, or pedigree — Contents of books and papers. 
 
 quired in attending any patient in a profes- 
 sional cliaracter, and which was necessary to 
 enable him to prescribe for such patient as a 
 physician, or to do any act for him as a sur- 
 geon (citing Coveney v. Tannabill, 1 Hill, 35 ; 
 Bobson v. Kent, 5 Esp., 53). Edington v. Mu- 
 tual Life Ins. Co., 5 Hun. (N. Y.), 1. 
 
 2. Communications from a party lo an at- 
 torney are not privileged, unless they are con- 
 fidential and made to him in his character as 
 an attorney. To establish the latter it must 
 appear that the attorney was acting for the 
 time being in the character of legal adviser, or 
 that the person who made them had good rea- 
 son to suppose he was acting as such when 
 they were made. Goon v. Swan, 30 Vt., 6. 
 
 3. This bill was against the insured and his 
 solicitor, alleging that the solicitor was pres- 
 ent at an interview between insurer and in- 
 sured, and it prayed that he should give cer- 
 tain information, or state what passed between 
 the parties at a time when he was present. He 
 answered that he was present at the time re- 
 ferred to as the solicitor, attorney, professional 
 and confidential adviser of the insured ; that 
 he acquired his information touching the 
 matters, solely from the fact that he was pres- 
 ent in the capacities mentioned, and that he 
 refused to answer on the ground that the com- 
 munications and information were privileged. 
 Held, his answer was insufficient. Desborough 
 V. Itavilin», 3 Myl. & Cr., 515. 
 
 YII. Heaesat. 
 
 A brother of the deceased, upon cross exam- 
 ination by defendant's counsel, testified as to 
 what he heard his brother say about his hav- 
 ing stayed away from home all night, in the 
 month of August, 1873. The plaintiflfs coun- 
 sel then asked : What did he say induced him 
 to do it? Held, the answer was admissible 
 although it was hearsay, ibr it was explana- 
 tory of that which had been inquired into by 
 the defendant. Jacobs v. National Life Ins. 
 Co., 1 MacArthur, 633. 
 
 YIII. Of chaeactee, eeputation oe 
 
 PEDIGEEE. 
 
 1. In determining whether the insured was 
 guilty of fraud in producing an overvaluation 
 of the property insured, his good character for 
 
 integrity is not admissible. Fowler v. JEJtna 
 Fire Ins. Co., 6 Cow., 673. 
 
 2. To prove a house is a brothel, general 
 reputation is not competent evidence. Loeh- 
 ner v. Home Mut. Ins. Co., 17 Mo., 347 ; 19 id., 
 638. 
 
 3. The nephew of the insured was exam- 
 ined for the purpose of establishing the dales 
 of the births of his uncles and aunts. Held, 
 the question was one of pedigree, and might 
 be established by general repute in the family, 
 to be proved by a surviving member of it; 
 hence it was error to reject the witness. Anm: 
 ican Life Ins. Co. v. Rotenagle, 77 Penn. St., 507. 
 
 4. A bible containing the registry of the 
 family in the possession of a daughter, the 
 registration being in the handwriting of a de- 
 ceased daughter, comes within the terms of 
 the code respecting the declarations of a de- 
 ceased person related by blood or marriage, 
 and is admissible as evidence upon questions 
 of pedigree, descent, relationship, birth, mar- 
 riage and death. That it is not in the hand- 
 writing of the father or mother presents no 
 valid objection. It is not conclusive evi- 
 dence, however, and may be weakened or 
 strengthened by other proof attending it. 
 Southern Life Ins. Co. v. Wilkinson, 53 Ga., 
 585. 
 
 IX. Contents of books and papees. 
 
 1. Evidence that a subscribing witness to a 
 deed has been diligently inquired for, that he 
 had gone to sea and had been absent four 
 years without being heard from, is sufficient 
 to admit secondary evidence of his handwrit- 
 ing. Spring v. South Carolina Ins. Co., 8 
 Wheat., 368. 
 
 2. A memorandum on the fly leaf of the 
 ledger of the insured, taken from inventories 
 destroyed by fire, was offered as evidence for 
 the insured. Held, the inventories would have 
 been admissible, and being lost, parol evidence 
 of their contents was admissible; hence, a 
 memorandum taken from them was good sec- 
 ondary evidence (citing Merrill «. Ithaca R. R. 
 Co., 16 Wend., 586; Guy v. Mead, 33 N. Y., 
 463). Insurance Co. v. Weide, 9 Wall., 677. 
 
 3. Insured offered the entry of footings 
 upon the fly leaf of a new ledger accompan- 
 ied by proof that they were correctly tran- 
 scribed from the inventory book or from the 
 fly leaf of an exhausted ledger, and they were 
 
621 
 
 EVIDENCE. 
 
 523 
 
 Opinions. 
 
 received. Held, it has frequently been de- 
 cided tliat as quantities and values are retain- 
 ed in the memory with great difiSculty, if the 
 •witness testifies that when the entry of ag- 
 gregate quantities or values was made, he 
 knew it was made correctly, tlie entry is ad- 
 missible. Insurance Companies c. Weide, 14 
 Wall., 375. 
 
 4. Where the seizing officer shows that all 
 papers taken from the vessel were delivered 
 to the court of vice admiralty, and the sworn 
 certificate of the registrar of tliat court shows 
 that he has returned copies of the papers and 
 proceedings in that court and the paper re- 
 quired is not among them", Hie presumption 
 is, that it is not in the court, and is sufficient 
 evidence of its loss to admit parol proof of its 
 contents. Francis c. Ocean Ins. Co., 6 Cow., 
 404. 
 
 5. Notice to the attorney of a corporation to 
 produce records is sufficient to admit evi- 
 dence to show an election of directors. Thay- 
 er V. Middlesex Mutual Fire Ins. Co., 10 Pick., 
 336. 
 
 6. Copy of a lost policy was offered, and 
 objection confined to a want of proof of loss 
 of original. Plaintiff testified: "The policy 
 had never come to his hands; he had search- 
 ed for it among his papers; it was not within 
 his custody or control." The secretary of the 
 company admitted that it was issued and sent, 
 but how it was sent he was unable to state. 
 Held, sufficient to establish the loss of the pol- 
 icy. Sussai County Ins. Co., v. Woodruff, 26 
 N.J.,541. 
 
 7. Insured was permitted to prove, that he 
 had sent by mail a notice of the loss to the 
 secretary of insurer, that he kept a copy of it 
 Hdd, he had a right to read the copy of the 
 notice to the jury without giving ijisurer 
 notice to produce the original (citing 3 Phil. 
 Ev., 544). Commonwealth Ins. Go. v. Monninger, 
 18 Ind., 353. 
 
 8. The pastor of a church in a foreign 
 country testified, that the church records of 
 marriages, births, etc., had been kept accord, 
 ing to law, and he was the proper custodian of 
 them, haying received them from his prcde- 
 cessor. HM, sworn extracts from the records 
 were admissible in evidence. American Life 
 Ins. Go. V. Bosenagle, 77 Penn. St., 507. 
 
 9. Stipulated : " If the insured shall have, or 
 shall hereafter make, any other insurance on 
 the property hereby insured without the con- 
 
 sent of this company written hereon ; then, and 
 in every such case, this policy shall be void." 
 Indorsed, " $4,000 additional insurance per- 
 mitted." There was $8,000 other insurance 
 made at that date, and the stock was incresised 
 by a knitting machine, and another policy for 
 $3,500 was effected. Insured claimed that 
 they notified insurers' agent by letter of this 
 subsequent i)olicy, to which no objection was 
 made by the company or its agent. The agent 
 denied receiving the letter. Meld, error to 
 allow a letter-press copy of the contents of 
 that letter to go to the jury until it was made 
 to appear, by proper proof, that the original 
 letter reached the hands of the agent ; showing 
 the original lett with a person, in the office 
 of the agent, unknown to the pei-son who de- 
 livered it, was not evidence sufficient to raise 
 a presumption that it reached the hands of 
 the agent. Sun Ins. Co. v. Barle, 39 Mich, 406 ; 
 Earle v. Westchester Fire Ins. Co., id., 414. 
 
 10. The witness testified, that he returned 
 the license to the person by whom it was 
 issued; he believed it had been thrown aside 
 with the waste papers of the office ; he did not 
 know what had become of it; he had searched 
 but could not recollect whether he found it or 
 not, did not tliink he found it; that hs kept a 
 memorandum book in which he made entries 
 of such papers; did not know where the book 
 was ; he gave it to tlie governor of the island 
 who was in the Bast Indies. Held, the evi- 
 dence was sufficient to let in proof of the con- 
 tents of the paper; that the absence of the 
 memorandum book did not affect that right, 
 for it was not evidence per se, but could only 
 have been used by the witness to refresh his 
 memory. Kensington v. Inglis, 8 East, 273. 
 
 X. Opinions. 
 (a) When admissMe. 
 
 1. The defendant's counsel offered to in- 
 quire of certain persons experienced in Uie 
 business of insurance, whether certain fact.s, 
 would have influenced the rate of premium, 
 had they been known by the insurer. Held, 
 the evidence was admissible. Haines v. Ni-te 
 England Mutual Marine Ins. Co, 2 Curtis, 239 . 
 
 2. A builder may be asked whether a house 
 composed of brick walls in front and re.ir, 
 with side walls of brick in the basement and 
 first story and above these wallB, joists filled 
 
 261 
 
623 
 
 EVIDENCE. 
 
 524 
 
 Opinions. 
 
 in with brick, is a brick house. Mead n. 
 Northwetlem Int. Co., 7 N. Y., 530. 
 
 3. The testimony of experienced navigators 
 ■was admitted as to the etfect, of rolling in 
 heavy seas, upon a ship laden with grain in 
 bulk, ndd, admissible. Waltkv.Wathington 
 Marine Ins. Co., 33 N. Y., 427 ; s. c, 3 Rob., 303. 
 
 4. The court cannot judicially say what is 
 meant by a whaling voyage, hence, evidence 
 of experts and persons versed in that par- 
 ticular branch of trade is admissible to prove 
 the general practice or course of the trade. 
 Child V. Sun Mutual Ins. Co., 3 Sand., 36. 
 
 5. The defendant asked a witness to state 
 what, in the usage of underwriters, is the 
 meaning of the term '' invoice, cost and five 
 per cent, added," also, " if the $313,000 was 
 intended by you, in making the insurance, to 
 be what was first stated in their application 
 as invoice cost, was it not, and five per cent, 
 added!" Held, the questions were proper, 
 and excluding the answers was error. Sturm 
 V. Williams, 6 J. & Sp. (N. Y.), 335. 
 
 6. Nautical witnesses may give their 
 opinions as to whetlicr a risk is, or is not in- 
 creased imder a given state of facts. Lapham 
 V. Atlas Ins. Co., 34 Pick., 1. 
 
 7. Upon a question whether the risk was 
 increased, it was proper to ask an expert 
 whether a partition increased the risk, or 
 created the necessity for another cask of 
 water. Daniels v. Hudson River Fire Ins. Co., 
 12 Cush., 416. 
 
 8. Whether insurer would have charged a 
 higher rate of premium, because the house was 
 unoccupied is a question within the x'eculiar 
 knowledge of persons versed in the business 
 of insurance, and was therefore admissible 
 (citing Merriam v. Middlesex Ins. Co., 21 Pick., 
 163; Webber n. Eastern R. R. Co., 3 Met., 147 ; 
 Mulry B, Mohawk Valley Ins. Co., 5 Gray, 
 541 ; McLanahan v. Universal Ins. Co., 1 Pet., 
 170; Hawes v. New England Ins. Co., 2 
 Curtis C. C, 229). Luce t. Dorchester Mut. Ins. 
 Co., 105 Mass., 297. 
 
 9. An experienced and practical fireman 
 can give his opinion whether the risk was in- 
 creased by certain alterations made. Schenck 
 «. Mercer County Mutual Fire Ins. Co., 24 N. 
 J., 447. 
 
 10. A person who has been engaged in the 
 business of life insurance may testify that the 
 business of a farmer was considered tlie least 
 hazardous occupation. Hartman v. Keystone 
 
 262 
 
 iTts. Co., 21 Penn. St., 466. And that slave 
 catching was much more hazardous than 
 farming, and that the insurer would not have 
 insured a person whose occupation was that 
 of a slave catcher. Ibid. 
 
 1 1. The witness was asked, " From your ex- 
 perience and knowledge as an insurance 
 agent, would the risk be increased or lessened 
 by the change of occupation from that of a 
 paint shop to a saloon ?" There was proof 
 that the building was rented for a saloon, and 
 that the lessees had commenced moving into 
 it the ordinary accompaniments of a saloon. 
 Held, the evidence was competent. MitcTiell 
 V. Home Ins. Co., 32 Iowa., 421. 
 
 1 2. The defendant asked an officer of an 
 insurance company who had been in the bus- 
 iness twelve years and was familiar with the 
 rales of insurance, whether in his opinion 
 the erection of the boiler, the location of the 
 engines, and the erection of a wooden shed 
 over the boiler, increased the hazard and re- 
 quired an additional premium. Held, error 
 to refuse to hear the witness' answer. Kern 
 V. South St. Louis Mut. Ins. Co., 40 Mo., 19. 
 
 13. Insurance brokers were permitted to 
 testify as to the general opinion and under- 
 standing of persons engaged in the trade, but 
 they knew not of any particular instance upon 
 which such opinion was founded. Held, ad- 
 missible. Camden v. Cowley, 1 W. Bl., 417. 
 
 14. Witnesses were called who testified as 
 to the state of the ship at a particular time. 
 Held, competent ship surveyors, who had never 
 seen her, might testify the condition in which 
 she was shown to have been was not seaworthy. 
 Bechuith v. Sydebotham, 1 Camp., 116. 
 
 15. A letter shown to the underwriter 
 stated, " She will sail in the month of Octo- 
 ber." Held, commercial men could testify 
 that sailing in the month of October was un- 
 derstood to mean she would sail " between 
 the 35th of that month and the 1st or 3d of the 
 month following." Chaurand xi. Angerstein, 
 Peakes N. P. C, 61. 
 
 16. The witness, an underwriter, was asked 
 whether the fact not mentioned to the insurer 
 was one which in his judgment was a fact 
 material to be communicated. HelH, the evi- 
 dence was proper, for it is impossible to nscer- 
 tain the materiality of matter not disclosed, 
 except by the testimony of skillful persons 
 conversant with the subject matter. Ricka/rds 
 ■B. Murdoch, 10 B. & C, 527; 8 L. J. K. E.,210; 
 
525 
 
 EVIDENCE. 
 
 526 
 
 Opinions. 
 
 disapproved, Campbell v. Sickards, 2 L. J. K. 
 B., 204;5B.&Ad., 840. 
 
 17. The opiuiou of the officers of an in- 
 surance company that the risk would not have 
 been taken had they been made acquainted 
 with certain facts, not disclosed to them, 
 when they accepted the risk is competent. 
 The declarations of the plaintiff to the insurers 
 when taking out the policy, describing the 
 nature and condition of the property, though 
 similar to the description made in the policy, 
 are admissible. And so, too, a letter written 
 by the insurer's agent, at the dictation of the 
 insured. Quinn c. If ational Assurance Go., 1 
 Jones & Carey, 316. 
 
 (b) When inadmissMe. 
 
 18. Insurers offered to prove that the secre- 
 tary would not have accepted the risk had he 
 known that certain alterations had been made 
 about the buildings. Hdd, inadmissible. Jef- 
 ferson Ills. Go. D. Gotheal, 7 Wend., 73. 
 
 19. The plaintiff introduced accounts of 
 stock in trade, purporting to have been made 
 in several consecutive years. The defendant 
 offered to prove, by persons skilled in hand- 
 writing, that the writing appeared to have been 
 done at one and the same time. Held, incom- 
 petent PJuenix Fire Ins. Co, v. Philip, 13 
 Wend., 81. 
 
 20. Evidence that the agent of the insurer 
 at the place where the buildings were would 
 not have insured them is not admissible. 
 Lightbody v. North Americaa Ins. Co., 23 
 Wend., 18. 
 
 21. Insurer's medical examiner was asked 
 by the plaintiff whether he believed the an- 
 swers by him made in his examination of the 
 person insured were correct at the time he 
 made them ; and, on the cross examination, the 
 witness was asked if he had known that the 
 person insured habitually indulged in tlie use 
 of intoxicating drinks to excess, would he 
 have regarded that as a habit or practice that 
 would impair health or constitution ? Held, 
 the question was incompetent, for the opinion 
 of the physician in certain cases, and under a 
 certain state of facts, was immaterial ; that their 
 opinions cannot be received except on matters 
 of science connected with their profession; 
 that the question called for the views of the 
 witness as to whether other persons would 
 have been influenced if certain specified facts 
 
 had existed. Baiels v. American Mutual Life 
 Tns. Co., 37 N. Y., 283 ; s. c, 36 Barb., 357. 
 • 22. The witness, a farmer, had been in the 
 store quite frequently, and was in it the day be- 
 fore the fire. Held, error to permit him to 
 testify to the amount of goods there was in the 
 store at the time of the lire, " according to his 
 estimate." Teerpenning v. Corn Exchange 
 Ins. Co., 43 N. T. (4 Hand), 279. 
 
 23. A physician, a casual acquaintance of 
 the person insured, was asked whether he 
 knew enough from what ho had seen, and 
 from the information received from the de- 
 ceased, to determine the character of certain 
 headaches with which the deceased had been 
 afSicted. He answered, that he had an im- 
 pression sufficient to satisfy his own mind 
 with regard to their cause, but not enough to 
 base a medical opinion. He was then asked 
 to state his impression. Held, inadmissible, 
 because it called for an opinion based upon 
 coiyecture ; that an opinion, to be admissible 
 as evidence, must be based upon' facts ob- 
 served by the witness, or proved by others, 
 or upon an hypothetical state of facts, perti- 
 nent to the issue, provided evidence has been 
 given tending to establish the hypothesis. 
 Higbie v. Guardian Mutual Life Ins. Co., 53 
 N. Y., 603. 
 
 24. Medical witness called by the plaintiff 
 and asked: "Assuming that a person had 
 that form of insanity which you denominate 
 melancholia, and had committed suicide, you 
 would attribute that suicide to the disease ? " 
 Answer: "Yes; I should atti-ibute it as the 
 result of insanity." Held, inadmissible, be- 
 cause the question did not call for facts and 
 information peculiarly within the knowledge 
 of an expert, but for the inference of the wit- 
 ness from a fact supposed, which inference 
 the jury were as capable to draw as the wit- 
 ness, if justified by the facts proven without 
 the opinion of the witness. Van Zandt v. 
 Mutual Benefit Life Ins. Co., 55 N. Y., 169. 
 
 25. A witness cannot testify in respect to 
 the value of property — a saw mill — which 
 he has never seen. He may, in some cases, 
 express an opinion, but he must state the facts 
 upon which his opinions are founded. West- 
 lake D. St. Lawrence County Mut. Ins. Co., 14 
 Barb., 206. 
 
 26. The defendant offered two witnesses to 
 testify as to the value of certain buildings, but 
 it appeared that neither had a sufficient 
 
 268 
 
527 
 
 EVIDENCE. 
 
 528 
 
 Opinions. 
 
 knowledge of the subject and of the facts to 
 render their opinion of any value. Held, 
 proper to exclude the evidence. Kendall ft 
 Holland Purchase Ins. Co., 2 N. Y. S. C, 375. 
 
 27. Tlie defend ant asked his agent: "Would 
 you have taken the risk at the amount and 
 valuation at which it was taken, if you had 
 known that the valuation was based in part 
 on Mexican bonds?" Held, inadmissible. 
 aturm «. Williams, 6 J. & Sp. (N. Y.), 325. 
 
 28. The opinion of a witness that the claim 
 against the Insurer is a legal one is not ad- 
 missible. Bider v. Ocean Ins. Co., 20 Pick., 
 259. 
 
 29. The defendant offered to prove by the 
 agents of certain insurance companies that 
 failure to occupy the building increased the 
 risk, and was material thereto. Held, inad- 
 missible, for the facts proposed to be proved 
 were as well within the knowledge of the jury 
 as of the witnesses, and were incompetent. 
 Mulry V. Mohawk Valley Ins. Co., 5 Gray, 541. 
 
 30. A nautical witness was asked to state 
 whether, if tlie foremast was sprung, tlie try- 
 sail split, and standing rigging sucli as to need 
 replacing at Gibraltar, the master would prob- 
 ably have known it. Held, inadmissible, be- 
 cause the information sought did not depend 
 on nautical skill. Perkins v. Augusta Insur- 
 ance and Banking Co., 10 Gray, 313. 
 
 31. The issue was whether the risk had 
 been increased, and witnesses were allowed to 
 testify that in their opinion it was increased. 
 Held, when the issue depends upon facts that 
 involve no peculiar science or information, 
 but are within the common knowledge of men, 
 opinions are not admissible. Lyman e. State 
 Mutual Fire Ins. Go., 14 Allen, 829. 
 
 32. The house was unoccupied at the time 
 of the loss, and so had been for some time 
 prior. Held, incompetent for witnesses to 
 state, as their opinions, that the nonoccu- 
 pancy increased the hazard, for it was a ques- 
 tion for the jury. Lwce v. Dorchester Mut. Ins. 
 Co., 105 Mass., 297. 
 
 33. The defendants called their secretary, 
 wlio testified that he had not any notice of the 
 additional insurance. He was then asked 
 whether, as executive officer of the company, 
 he would have consented to an additional in- 
 surance of $6,000, and if not, why. Held, 
 inadmissible. Hureka Ins. Co. v. Bobinson, 56 
 Penn. St., 256. 
 
 34. A witness was called and asked whether 
 264 
 
 or not a boat descending the river could be run 
 by a competent, sober pilot, if awake, to 
 the place where this boat was lost, without 
 criminal neglect aud fraud. Held, inadmissi- 
 ble. Cincinnati Ins. Co. v. May, 20 Ohio, 
 311. 
 
 35. Insurers called their secretary as an 
 expert in insurance, and offered to prove that 
 the prohibitory clause contained in their pol- 
 icy, respecting the employment of carpenters, 
 was generally understood in the office of the 
 insurers, to refer to the employment and work 
 of carpenters in erecting or adding. to build- 
 ings insured. Held, it was properly rejected, 
 for what was understood in the office of in- 
 surers, without proof that insured knew that 
 such was the understanding, was clearly inad- 
 missible. Washington Fire Ins. Co. v. Davison, 
 30 Md., 91. 
 
 36. The defendant sought to prove by a 
 person expert in the business of insurance, 
 that an unoccupied building is a much more 
 hazardous risk than one occupied. Held, it 
 was inadmissible (citing Joyce r>. Maine Ins. 
 Co., 45 Me., 108). Cannell v. Phoinii Ins. Co., 
 59 Me., 583. 
 
 37. The application required the applicant 
 to state the name of his own or family physi- 
 cian, or of the medical attendant who last ren- 
 dered him professional service, to which he 
 replied that he had none. The defendant 
 asked a medical witness to state the meaning 
 of the phrase " family physician." The ques- 
 tion was excluded. Held, the ruling of the 
 court was right, because the phrase had no 
 technical signification, and was not a subject 
 for the opinion of an expert. To the same 
 witness the question was propounded whether 
 at the time the application was made, the in- 
 sured was in good health and free from symp- 
 toms of disease. Held, inadmissible, because 
 the question called for a conclusion with no 
 facts for its foundation; facts should have 
 been elicited in order that it might appeal- 
 upon what ground the conclusion was predi- 
 cated. Beid «. Piedmont and Arlington Life 
 Ins. Co., 58 Mo., 421. ' 
 
 38. Two stores had been put into the build- 
 ing. At the time the fire occurred, no fire had 
 been in one of them for eight days past, and 
 as to the other, no fire had been in it for near- 
 ly two days. Held, insurance agents could 
 not be called as experts to testify as to whether 
 the risk had been increased by the stoves. 
 
529 
 
 EVIDENCE. 
 
 530 
 
 Immaterial ajid irreleyant. 
 
 Schmidt v. Peoria Fire and Marine Ins. Co., 
 41 111., 295. 
 
 39. A wltuess who is not an expert cannot 
 be permitted to give an opinion, unless he 
 states the facts upon which the opinion is 
 founded. SoutJiern Life Ins. Co. v. Wilkinson, 
 58 6a., 535. 
 
 40. A witness was allowed to state his 
 >opinion founded upon certain facts, " that by 
 
 the acceptance of the order the insurance was 
 completed and the company bound for the 
 loss, and the party who ordered it bound for 
 the premium." Held, it was deciding the very 
 matter in controversy, and therefore entirely 
 incompetent. Lindauer v. Selaware Mutual 
 Safety Ins. Co., 13 Ark., 461. 
 
 41. Except in matters of science and skill, 
 and some other special cases resting upon pe- 
 culiar circumstances, tlie understanding and 
 opinion of a witness is not to be received as 
 evidence, because a party might be rendered 
 accountable for the understanding of the wit- 
 ness contrary to the legal interpretation of the 
 contract (citing Gibson v. Williams, 4 Wend., 
 320; Kobinson v. Drummond, 24 Ala., 174; 
 Whetstone «. Bank of Montgomery, 9 id., 875). 
 Mobile Marine Dock and Ins. Co. v. McMillan, 
 31 Ala., 711. 
 
 42. How far fal.se statements affected the 
 validity of the contract, if any there were in 
 the application, is a question of law for the 
 court and not one about which a witness can 
 be permitted to testify; and, any statements 
 made by a witness tending to show that he 
 relied upon the statements made in the appli- 
 cation, and that he would not have issued the 
 policy had he known certain facts, not stated 
 in the application, were irrelevant. Washing- 
 ton Life Ins. Co. ■». Eaney, 10 Kan., 525. 
 
 43. "Perils of the seas " are to be construed 
 by the court, and where the question was 
 whether the loss was by leakage or by perils 
 of the sea, a witness could not be asked: 
 " Where the cargo has not been shifted nor the 
 casks damaged, the running out of the liquid, 
 is it in practice considered as leakage or as 
 loss by perils of the sea?" But it would have 
 been proper to ask: " Suppose the casks have 
 not been shifted nor damaged, but the liquid 
 escapes, to what do you attribute it?" Crofts 
 «. Man-shall, 7 C. & P., 597. 
 
 44. Agent was ordered to wait thirty days 
 after the arrival of a vessel named, and then 
 insure goods shipped by another, the latter 
 
 having sailed before the former. Held, in an 
 action against the agent for negligently mak- 
 ing the insurance, and failing to disclose to 
 Insurers the time the vessel sailed, it was not 
 competent for brokers and underwriters to 
 testify that the matter not disclosed was mate- 
 rial. Campbell v. Uickards, 5 B. & Ad., 840. 
 
 45. Insurers offered to prove that certain 
 matters not communicated were material to 
 the risk. Held, inadmissible, for it was noth- 
 ing but his individual opinion. The court de- 
 clined to decide whether what in his judgment 
 would have been the opinion of underwriters 
 generally as to the materiality of facts not dis- 
 closed. Scottish Mutual Ins. Co. n. Turner, 15 
 C. C. S., 33. 
 
 46. The issue was, whether circumstances 
 material to the risk were concealed or misrep- 
 resented. Held, it was not proper to ask the 
 broker: "If you had known that the vessel 
 sailed in September under charter party, the 
 freight of which was to be insured, would you 
 have communicated the fact to the underwrit- 
 ers, as in conformity with the practice of in- 
 surance brokers ?" What a man or class of 
 men would do is not material. Baker v. Scot- 
 tish Sea Ins. Co., 18 C. C. S., 691 ; 28 Scot. Jur., 
 293. 
 
 XI. Immaterial mud ieeelevant. 
 
 1. Stipulated to be void if the life insured 
 shall become so far intemperate as to impair 
 his health. A witness was offered to prove 
 that three months before the policy was issued, 
 he, acting for another insurance company, ex- 
 amined the perfeon insured ; that he gave it as 
 his opinion to that company that the deceased 
 was not insurable ; and he was also asked if 
 he was acquainted with the condition and state 
 of health of the person whose life was insured 
 at the time referred to. Held, the evidence 
 was not admissible, because it did not relate 
 to the time the policy was made, or to any 
 time subsequent to the issue of the policy. 
 Insurance Co. v. Mdhone, 21 Wall., 152. 
 
 2. Defendant offered to prove the value of 
 stock carried by the largest dealer in the city, 
 where the insured conducted his business, for 
 the purpose of raising a presumption against 
 the amount of loss claimed by the plaintiff. 
 Held, inadmissible. Phoenix Fire Ins. Co. v. 
 Philip, 13 Wend., 81. 
 
 3. The question between the parties waa 
 
 285 
 
631 
 
 EVIDENCE. 
 
 632 
 
 Iiumaterial and iirelevant. 
 
 whether the deceased had committed suicide, 
 or whether the cause of death was accidental. 
 Held, evidence that the deceased was an infidel 
 was immaterial. Gibson v. American Mutual 
 Ins. Co., 37 N. Y., 580. 
 
 4. Defendant called a police ofOcer as a 
 witness, and asked him what character of per- 
 sons frequented the plaintiffs house. Held, 
 inadmissible. JBussell v. 8t. NielwlasFire Ins. 
 Co., 51 N. Y., 643; Same v. Metropolitan Ins. 
 Co., id., 650. 
 
 5. " On merchandise, hazardous and not 
 hazardous." He had in the store at the time 
 of the fire, turpentine, which was classed in 
 the policy as extra hazardous; the keeping 
 of extra hazardous goods was prohibited. The 
 plaintliT ofifered to prove that a policy was 
 sent to the defendants, which insured such 
 goods as are usually kept in country stores, 
 and that defendants were requested to issue 
 their policy on the same stock in the same 
 store, and that in response to this request the 
 policy was delivered. Held, inadmissible, be- 
 cause immaterial so long as the defendant did 
 not accept the risk as offered, nor insert in 
 the policy permission to keep the prohibited 
 goods ; nor could the fact that insured did not 
 discover the defect in the policy in suit, till 
 after the fire occurred, aid the insured, for he 
 was bound to know what his contract was. 
 Pindar v. Besolute Fire Ins. Co., 47 N. Y., 114; 
 S. 0. 38 id., 864. 
 
 6. A nonprofessional was called to show 
 the mental condition of the mother of the in- 
 sured. Her acts and declarations were de- 
 tailed to him, and he was asked whether she 
 was rational or irrational. Held, immaterial, 
 because there was no representation as to the 
 sanity of the mother, nor was it alleged in the 
 answer that the insured inherited his mother's 
 disease. Higbie v. Qua/rdian Mutual Life Ins. 
 Co., 53 N. Y., 603. 
 
 7. A condition in the policy restricted the 
 right to recover not more than two-thirds of 
 the value of the premises insured. HM, error 
 to permit the plaintiff to prove that he did not 
 discover the restriction until after the fire 
 occurred. Erein v. New York Central Ins. 
 Co., 3 N. Y. S. C, 313. 
 
 8. It appeared that a paper had been drawn 
 and signed by one of defendants' witnesses, 
 and was ia possession of plaintiff's counsel. 
 Being produced, was examined by plaintiff's 
 counsel, who proposed to show by the witness 
 
 268 
 
 the circumstances under which he signed it. 
 Held, the witness having admitted the execu- 
 tion, evidence was not admissible to explain 
 it until it was put in evidence. HotcMiss v. 
 Germania Fire Ins. Co., 5 Hun. (N. Y.), 90. 
 
 9. The knowledge the insurer's agent has 
 of the health of the insured is immaterial upon 
 a question of misrepresentation or conceal- 
 ment. Vose V. Eagle Life and Health Int. Co., 
 6 Cush., 43. 
 
 10. Evidence was given tending to prove 
 that insured deposited ashes in wooden ves- 
 sels after date of policy, contrary to its stipu- 
 lations ; and insured called witnesses who tes- 
 tified, upon cross examination, that they had 
 never known ashes to be so deposited since 
 the house was built, in 1838. HeUd, evidence 
 could not be given by the insurer to prove 
 that in 1844, before the policy was made, 
 ashes were so deposited. UnderAill u. Ago:. 
 wam Mutual Eire Ins. Co., 6 Cush., 440. 
 
 11. Action to recover for a loss of malt, 
 hops, etc. Held, evidence that insured had 
 not taken a license from the government for 
 distilling whisky; that they effected insur- 
 ance in other companies as brewers and malt- 
 sters, without disclosing that they were distil- 
 lers, or that they made false representations to 
 the agents of other insurers, was immaterial 
 People's Ins. Co. «. Spencer, 53 Penn. St., 353. 
 
 1 2. The defendant offered to prove that the 
 person insured had, within two years, ob- 
 tained insurance to the amount of $30,000 on 
 his uncle's life, the person whose life was in. 
 sured. Held, not admissible. Mowry v. Home 
 Life Ins. Co., 9 R. I., 346. 
 
 13. A witness was called to testify to the 
 amount of stock carried by his firm in New- 
 ark, and the amount of his average sales, for 
 the purpose of raising the presumption, that 
 plaintiff's stock and sales were not in the usual 
 proportion. Held, inadmissible, for if such 
 evidence were competent, witness ought to 
 have been engaged in trade in tlie same place 
 with insured, Morristown ; therefore the case 
 of Insurance Co. •». Weide, 11 "Wall.,^439, was 
 not in point (citing Greenl. Bv., sec. 53, p. 448; 
 Koscoe's N. P. Bv., .SB, 88). Jones v. Me- 
 chanics Fire Int. Co., 38 N. J., 39. 
 
 14. The application, made part of tlie con. 
 tract, stated "- That the property had not been 
 a subject of litigation since in present hands." 
 Upon cross examination, defendant asked 
 plaintiff, " If he was present just previous to 
 
533 
 
 EVIDENCE. 
 
 534 
 
 Weight of evidence — Withdrawing or striking out — Objections to. 
 
 obtaining this insurance, when Crosby was 
 attached for contempt of court in running 
 this distilleiy. About how many times has 
 this distillery been seized by the government ?" 
 Held, not proper cross examination, because 
 the question did not tend to elicit any evidence 
 tending to show litigation. Andes Ins. Co. ■». 
 SJtipman, 77 111., 189. 
 
 15v Upon the question whether the insured 
 was sane, evidence of a rumor that, on the 
 night preceding his death, he had burned his 
 brother's livery stable, was admitted. Held, 
 the evidence was incompetent unless it also 
 appeared that the rumor was brought home to 
 the deceased. St. Louis Mutual Life Ins. Co. 
 «. Gra/cea, 6 Bush., 268. 
 
 XII. Weight of evidence. 
 
 1. Kegative testimony is ordinarily of less 
 weight than positive, but it is not to bo disre- 
 garded ; and where there is even nothing but 
 negative testimony on one side of an issue, 
 the court is bound to submit it to the jury. 
 Bradley <o. Mutual Benefit Life Ins. Co., 45 N. 
 T., 433; s. c, 3 Lans., 341. 
 
 2. Insured took the goods into his posses- 
 sion, allowing a long time to elapse before 
 making claim for damage. Held, if he af- 
 forded insurers no opportunity to examine 
 them, proof of his claim ought to be very 
 clear and satisfactory. MereharUt Mut. Ins. 
 Co. V. Wilson, 2 Md., 217. 
 
 3. Insured stated in his application that he 
 never had bronchitis. Two physicians, pro- 
 duced on the trial, testified they had attended 
 him for bronchitis ; but the plaintiff produced 
 negative testimony tending to show the con- 
 trary. The defendants requested Uie judge to 
 instruct the jury, "When a specific fact is 
 sworn to by a witness of fair fame, who is 
 uncontradicted by other testimony or circum- 
 stances, mere negative evidence will not war- 
 rant the jury in disregarding his testimony;" 
 which the court refused. Held, no error, for it 
 is not true, as matter of law, that negative evi- 
 dence may not be sufficient to counterbalance 
 positive testimony. OamvpbeU, v. New Mngland 
 Life Ins. Co., 98 Mass., 381. 
 
 XIII. "WlTHDEAWING OE STKIKING OUT. 
 
 1. Witness, on cross examination, gave an 
 answer not responsive to the question. Held, 
 
 the party who put the question had the right 
 to have the answer excluded. Bailway Pas- 
 sengers Ass. Co. V. Warner, 1 N. Y. 8. C, 31, A.d. 
 2. Plaintiff gave in evidence certain letters, 
 to which defendant objected. Overruled, and 
 exception was taken. Subsequently plaintiff 
 asked leave to withdraw that evidence from 
 the consideration of thu jury, to which defend- 
 ant objected, but the court permitted it to be 
 withdrawn. Held, no ground for complaint 
 (citing Boone v. Purnell, 38 Md., 607). Provi- 
 dence Life Ins. Co. «. Martin, 33 Md., 310. 
 
 XIY. Objections to. 
 
 1. A witness testified, as to the weight of 
 certain wool, from a copy of a memorandum. 
 The defendant's counsel continued the exaai- 
 ination of the witness on that and other sub- 
 jects, and then made a motion to strike out the 
 evidence as to the weights because he testified 
 fi'om the copy. Held, too late ; the objectiou 
 should have been made as soon as it was ascer- 
 tained that the witness testified from the copy 
 (citing Quin ». Lloyd, 41 N. Y., 349). Pitney 
 V. Olens Falls Ins. Co., 61 Barb., 335. 
 
 2. Tiie insured produced an. account of ex- 
 penditures on the machinery destroyed, which 
 had been recovered under a diligence granted 
 in the course of making up the record. The 
 insurer objected to its introduction. Held, it 
 was too late to object on the ground that it 
 was a confidential statement. Hercules Ins. 
 Co. V. Hunter, 14 C. C. S., 1137. 
 
 3. It was alleged in the record that the term 
 insured commenced December 20lh ; the con- 
 tract stated it commenced on the 30th. A 
 general objection was made to the introduc- 
 tion of the contract. Held, insurers could not 
 be permitted to i-aise a question of variance iu 
 the court above, for it was their duty to point 
 to the defect, and not leave the court to discover 
 it. Troy Fire Ins. Co. ■». Caxfienter, 4 Wis., 20. 
 
 4. Insured offered preliminary proots in 
 evidence, to which a general objection was 
 made. Held, when evidence is offered which 
 is competent for some purposes, the party ob- 
 jecting or desiring to limit its effect must dis- 
 tinctly state the grounds of objection. Bonner 
 V. Home Ins. Co., 13 Wis., 677. 
 
 5. If a party permit questions to be put 
 to a witness without objection, he takes 
 his chance of a favorable answer; and if tho 
 answer is adverse to his wishes, it is too late 
 
 267 
 
535 
 
 EVIDENCE. 
 
 636 
 
 Usage and custom — Books, papers, letters and photographs. 
 
 for him to object to it. Francis d. Ocean Ins. 
 Co., 6 Cow., 404. 
 
 6. If the evidence oifered and admitted was 
 incompetent, and no objection was made to it 
 at the trial below, the court above will not 
 consider the question. WitJicrM o. Maine 
 Ins. Co., 49 Me., 300. 
 
 7. An objection was made to certain evi- 
 dence offered and admitted, but no specific 
 ground of objection was stated. Held, no 
 error could be supported upon the question. 
 Bosenheim e. America Ins. Co., 33 Mo., 330. 
 
 8. Objection was made to certain evidence, 
 but the party complaining against it consented 
 that the objections might be reserved to the 
 argument of the case, to be then pursued if 
 they saw fit; hut they were not referred to 
 again at the trial. Held, they were waived. 
 Hoxie v. Home Ins. Oo., 33 Conn., 31. 
 
 9. The defendant objected to the compe- 
 tency of a witness on the ground of interest. 
 Held, the specific objection was a waiver of 
 every other ground of objection; in other 
 words, every cause of objection not specific- 
 ally stated was waived (citing Creagh v. Sav- 
 age, 9 Ala., 959). Fulton Insurance Co. v. 
 Goodman, 33 Ala., 108. 
 
 10. Witness was asked a question and an- 
 swered it; then defendant objected to the ques- 
 tion as leading. Held, objection came too 
 late, for a party cannot stand by and allow an 
 answer to be made, and object to the question 
 when the answer does not suit him. Wash- 
 ington Fire Int. Co. v. Davison, 30 Md., 91. 
 
 XV. Usage and custom. 
 
 1. "Whatever is common and usual under 
 given circumstances is evidence tending to 
 show what is reasonable. Crocker v. People's 
 Mutual Fire Ins. Co., 8 Cush., 79. 
 
 S. The practice of adding premiums to the 
 invoice value may be controlled or modified 
 by proof of a different custom, a knowledge 
 of which has been brought home to the party. 
 Merchants Mutual Ins. Co. v. Wilson, 3 Md., 
 317. And evidence that the insured had re- 
 ceived from a notary statements of losses, in 
 which no premium was added to the invoice 
 cost, was admissible for the purpose of bring- 
 ing that custom home to the insured. Ibid. 
 
 3. Evidence is admissible to show a uniform 
 and established us.ige for the vessel to have on 
 board a bill of lading and invoice of cargo, 
 268 
 
 sliowing its prime cost and value, and that 
 insurers were in the habit of demanding, and 
 the insured in the habit of delivering such 
 papers upon the settlement of partial losses 
 under valued policies. Allegre v. Maryland 
 Ins. Co., 6 H. & J., 408; affirmed, 2 G. & J., 
 136. 
 
 XYI. Books, papers, lettees, and 
 
 PHOTOGEAPHS. 
 
 1. The plaintiff offered and read in evi- 
 dence letters testamentary granted upon her 
 husband's estate, as evidence of the death of 
 her husband. Held, the court in granting the 
 letters never adjudicated that her husband was 
 dead, for death was not the res presented to it. 
 Shall letters testamentary issue was the res. 
 Upon that only the adjudication rests, hence 
 the letters testamentary were not admissible 
 for the purpose of proving the death of her 
 husband (S. C. U. S.). Mutual Benefit Life Ins. 
 Co. V. Tisddle, 5 Ins. L. J., 127. 
 
 2. The master made protest in Jamaica, and 
 it was admitted as original evidence. Insured 
 wrote letters to the master of tlie vessel in- 
 sured, giving him instructions. The master 
 testified that these were the only letters he re- 
 ceived from the insured. They were offered 
 and received because if they contained no or- 
 ders to purchase her, that tended to show that 
 he was never directed to purchase. Story v. 
 Streltel, 1 Dall., 13. 
 
 .S. Tlie survey is not evidence of any of the 
 facts stated in it. Watson v. Ins. Co. of North 
 America, 3 Wash. C. C, 480. 
 
 4. A paper produced upon notice, called for 
 and inspected on the trial, is evidence in the 
 case. A party will not be permitted to specu- 
 late through the forms of the law; and obtain 
 an inspection of a document without making 
 it evidence. Lawrence v. Van Home, 1 Caines, 
 276. 
 
 6. Letters called for by the insurer under a 
 rule of court, produced under oath, are anala. 
 gous to an answer in chancery, and the in- 
 sured is entitled to have the whole read and they 
 are prima facie evidence of the facts stated in 
 them. ■ Laicrenee v. Ocean Ins. Co., 11 Johns., 
 345 n. 
 
 6. A single entry in a memorandum book 
 was read by a witness who made it, also a let- 
 ter written by the plaintiffs, who demanded 
 the repayment of tlie money. The defendant 
 
537 
 
 EVIDENCE. 
 
 538 
 
 Books, papers, letteis and photographs. 
 
 admitted a proper demand for repayment. 
 Seld, it was proper to exclude the memoran- 
 dum book and the letter. Sailtnay Passengers 
 Asa. Co. V. Warner, I N. Y. S. C, 31 Ad. 
 
 7. Defendant offered to show that the agent 
 had been fUrnished with a book in which he 
 was to enter contracts made by him for de- 
 fendants, and that the contract in question had 
 not been entered. Seld, it was not evidence 
 that no contract had been made. Sanborn v. 
 Fireman's Ins. Co., 16 Gray, 448. 
 
 8. A paper signed by the witness, but not 
 written by him, recited that the repairs on tlie 
 bark were completed about November 10, 
 1855; and it described the condition of Uie 
 rudder case at the time the repairs were made. 
 He testified he had no recollection of the rud- 
 der case, nor any recollection of signing the 
 paper, but that seeing his signature to it, he 
 had no doubt that the facts were as stated in 
 the paper. He testified his memory was not 
 refreshed by seeing the paper. Held, the pa- 
 per was properly rejected. Parsons v. Manu- 
 faehirers Ins. Co., 16 Gray, 463. 
 
 9. The court has not the power to compel a 
 party to produce evidence against himself; 
 but will permit a party claiming the benefit of 
 a writing, in the possession of his. adversary , to 
 give notice that such writing is needed on the 
 trial, and if not produced after reasonable no- 
 tice, prove the contents thereof. Sage «. Mid- 
 dUhim Ins. Co., 5 Day, 409. 
 
 10. Copies of entries taken from books are 
 not admissible unless they come within sec. 
 284 of the Practice Act, 2 G. & H., 184, which 
 provides " That the deponent must state tliat he 
 has the legal custody of the books; that the 
 copies are full and true copies of the original 
 entries; that the original entries have re- 
 mained unaltered from their date to the best 
 of depooeut's knowledge and belief " (citing 
 Smith e. Ind. Bailroad Co., 12 Ind., 61). Kit^l 
 t. Enterprise Ins. Co., 45 Ind., 43. And every 
 entiy made in the books of a corporation is 
 not evidence for the corporation, though they 
 may be evidence against it. Ibid. 
 
 11. Insurers notified insured to produce his 
 ledger upon the trial. He brought it into 
 court and tendered it to defendants, upon con- 
 dition that if they examined it, it should be 
 put in evidence. The court ruled, " If defend- 
 ants examined it, the insured will have the 
 right to read it in evidence." Held, no error. 
 
 Huekins e. Pe.iple's Mutual Fire Ins. Co., SIN. 
 H., 23d. 
 
 12. A paper, exhibited by the insured to the 
 insurer as one of the preliminary proofs of 
 loss, is not evidence for any purpose, if it was 
 not of itself evidence between insurer and in- 
 sured. Thurston o. Murray, 3 Binn., 326. 
 
 13. The court admitted a photograph of the 
 deceased, taken very near the date of the pol- 
 icy. Held, it was competent evidence from 
 which the jury could judge of her apparent 
 bodily condition. Schaible v. Washingtm, Life 
 Ins. Co., 9 Phila., 136. 
 
 14. The defendant offered to prove the con- 
 tents of a forwarding book, kept by a railroad 
 company at a place whence the insured 
 claimed to have shipped a large quantity of 
 the goods ; but proof of the custom of the 
 company and of the general accuracy of the 
 book was not offered. Held, properly rejected. 
 Bonner v. Home Ins. Co., 13 Wis., 677. 
 
 1 5. Writings, tendered for the purpose of 
 proving handwriting by comparison, are inad- 
 missible unless submitted to the opposite party 
 before he announces that he is ready for trial. 
 Code, § 3840. Georgia Masonic MiUual life 
 Ins. Co. V. Gibson, 52 Ga., 640. 
 
 16. Preliminary proofs were made and 
 amended on two different occasions. Insured 
 demanded, in writing, copies of all papers in- 
 tended to be used at the trial ; and copies of 
 but one set of preliminary proofs were fur- 
 nished. Held, the others were not admissible. 
 See Code, sec. 369. Kansas Ins. Co. v. Berry, 
 8 Kan., 159. 
 
 17. Plea: The defendant did not become 
 an insurer as alleged. The main issue was, 
 whether a policy had been made. Defendants 
 were notified to produce tlie original, alleged 
 to be in their hands, and upon nonproduction 
 of it, the court admitted a document purport- 
 ing to be a copy, which the plaintiff had re- 
 ceived from the defendant's broker. The de- 
 fendant offered to put in proof, before the 
 copy was read to the jury, tending to show 
 that no stamped policy had been issued, which 
 the court refused, but left the question gener- 
 ally, upon all the evidence in the case, for the 
 jury to determine -whether there had been a 
 stamped policy duly executed. Held, no error ; 
 for to hold otherwise would be getting tlie 
 court to decide that which was peculiarly the 
 province of the jury. Stowe v. Quemer, 5 L. 
 
639 
 
 EVIDENCE. 
 
 640 
 
 Foreign laws — Impeaching adversaiy's, or contradictiiig your own witncBS. 
 
 R. Ex., 155; 39 L. J. Ex., 60; 18 W. B., 466; 
 22 L. T. (N. S.), 29. 
 
 18. Tbe defenders were employed to procure 
 insurance on the ship Earl of Dalhousie. In 
 consequence of the wording of the policy, the 
 insurers escaped liability. Tliis action was 
 brought against them to recover for neglect 
 of duty. Held, the pursuers must prove that 
 they were the owners of the ship, and pro- 
 duction of the ship's register, made in their 
 own names, was not, per se, evidence of the 
 fact. Scott «. Miller, 7 S. & D., 56; 5 Scot. 
 Jur., 94. 
 
 1 9. The insurers were required to produce 
 the policy which had been made by them on 
 tbe ship insured. They refused on the ground 
 that they liad not been paid the premium. 
 Held, they could not be compelled to give it 
 up till the premium was paid. Scott «. Sea 
 Ins. Uo., 3 C. C. S., 467. 
 
 XVII. Foreign laws. 
 
 It is not necessary to call a lawyer to prove 
 the law of a foreign country. Any person 
 who has been in a position, rendering it prob- 
 able that he would acquaint himself with the 
 law, is competent. American L^e Ins, Co. e. 
 Botmagle, 77 Fenn. St, 507. 
 
 XVIIL Impea-ohing adveesaet's, oe 
 
 CONTEADICTIKG YOtJE OWN WITNESS. 
 
 1. The plaintiff read some of the proceed- 
 ings in admiralty to prove the libel and con- 
 demnation; and the defendant then, to dis- 
 credit a witness sworn in this cause, selected 
 a deposition that had been read in the admi- 
 ralty court, and offered to read it. Seld, it was 
 inadmissible. Marine Ins. Co. c. Hodgson, 6 
 Cranch, 206. 
 
 2. Some of the witnesses had signed a pro- 
 test made at the Isle of Prance. Sdd, the 
 protest could be read to impeach them. Win- 
 fhrop 0. Union Ins. Co., 2 Wash. C. C, 7. 
 
 3. The plaintiffs read the report of the sur- 
 veyors, and the defendant read the deposition 
 of one of them. Held, the plaintiff had the 
 right to impeach the surveyor, notwithstand- 
 ing he had given in the report as evidence. 
 Watson V. Insurance Go. of Worth America, 2 
 Wash. C. C. 480. 
 
 4. The sentence of condemnation was read 
 by insured. It referred to an invoice found 
 
 270 
 
 on board at the time of the capture, and men- 
 tioned by the captain, a pan owner, in his an- 
 swer to the standing interrogatories. Seld, 
 the invoice was admissible, as well as the 
 standing interrogatories, for purposes of im- 
 peachment. Azuria v. Insurance Co. of Penn- 
 sylvania,_Z Wash. C. C, 177. 
 
 5. The credit of a witness may be im- 
 peached either by cross examination, by gen- 
 eral evidence affecting his character, or by 
 proof that he has before done or said that 
 which is inconsistent with his testimony given 
 on the trial. Howard v. City Fire Int. Co., 4 
 Denio, 503. 
 
 6. A witness obtained papers of value rela- 
 ting to the action, and refused to give thera up 
 till paid $16. Held, admissible, because it 
 affected his credibility. Railway Passengers 
 Ass. Co. V. Warner, 1 K. Y. S. C, 21 Ad. 
 
 7. The insured produced the sentence and 
 decree of condemnation to prove that by the 
 act of a foreign prize court, they had been de- 
 prived of all property in their ship. Tlie 
 sentence recited that " She was condemned 
 for attempting to enter the port of La Guira, 
 now a blockaded enemy's port, to land goods 
 for the use of the enemy." The insured of- 
 fered, and was permitted to prove, that at the 
 time mentioned in the sentence, the port of La 
 Guira was not blockaded. Held, the insured 
 was not to be deemed as offering the sentence 
 as evidence of the truth of the allegations on 
 which it was professedly founded. To sanc- 
 tion the objection to contradict the sentence, 
 would be judicially repealing the act of 1813, 
 and giving to sentences of foreign prize courts 
 that conclusiveness of which they were di- 
 vested by the act of 1813. Maryland Ins. Go. 
 v. Bathurst, 5 G. & J., 159. 
 
 8. The defendant sought to impeach a wit- 
 ness by showing he had made statements dif. 
 ferent from those by him testified on the trial, 
 but the witness was not interrogated as to the 
 i^ct of his having made such contradictory 
 statements. Held, admitting the impeaching 
 testimony was error. Paradise v. Sun Mut. 
 Ins. Co., 6 La. An., 596. 
 
 9. The master's protest was given in evi- 
 dence ftn- the plaintiff. A witness testified, by 
 deposition, that one of the persons who signed 
 the protest said the plaintiff had purposely 
 run the vessel ashore and burned her. The 
 court suppressed that evidence as heaisay. 
 Held, error, for it was competent evidence to 
 
541 
 
 EXAMINATION UNDER OATH. 
 
 5ii 
 
 When a failuie to submit to, is a defense to the action. 
 
 contradict the protest Church v. Teatdale, 1 
 Brev., 255. 
 
 10. One of the crew was examined as a 
 ■witness for the insurers. Held, his statements 
 made in the protest could be read in evidence 
 by the plaintiff as impeaching testimony. 
 Cudworth e. South Carolina Int. Co., 4 Kich., 
 416. Plaintiff took the deposition of a wit- 
 ness and read it upon the first trial. On the 
 second, he did not read it, but the defendant 
 read it. Held, the plaintiff had a right to im- 
 peach the witness. Ibid, 
 
 1 1 . A party may contradict his own wit- 
 ness, if he speaks to a material fact in the 
 case, against the interest of the party who 
 called him. But on a collateral fact, he can- 
 not be contradicted. FriecUander «. London 
 A>s. Co., 4 B. & Ad., 193; 1 Nev. & Man., 31. 
 Tlie plaintiff called a witness, who testified on 
 cross examination, that he fabricated an in- 
 voice for plaintiff, in the presence of his son 
 and his former shopman. Held, a material 
 point upon which plaintiff might contradict 
 him by calling the son and the shopman. Ibid. 
 
 18. A witness on cross examination was 
 asked whether he had not said, " That the un- 
 derwriters had not a leg to stand on," and he 
 denied. An offer was made to call a witness 
 to prove he had said so. Held, it did not 
 come within the rule relating to matter di- 
 rectly connected with the issue. Elton v. Lar- 
 kins, 8 Bing., 198; 1 M. & Scott, 323; 5 C. & 
 P., 86, 385. 
 
 13. Both parties put in evidence respecting 
 the character, proceedings and statements of 
 M., who acted under the insured in the man- 
 agement of the mill. Insurer now proposed 
 to call M. as a witness in the case. Held, the 
 evidence would not have been admitted, had 
 it been stated that M. was to be called as a 
 witness. HerctUes Ins. Co. v. Hunter, 14 C. C. 
 a, 1137. 
 
 XIX. Leading questions. 
 
 "Was the extra privilege referred to and 
 the cancellation entered upon your record on 
 the autliority of those two letters ? " Hdd, a 
 leading question, and all answer to it, beyond 
 the direct response, would be irresponsive. 
 Kiiig V. Enterprise Int. Co., 45 Ind., 43. 
 
 XX. Kefbeshing MEMOET. 
 
 1, A few days after the fire, the witness and 
 
 his father made from memoiy a memorandum 
 of what goods were in the store at the time of 
 the fire. The witness wrote what he recol- 
 lected on a slate, and his father transcribed it 
 upon paper, to which the fatlier added some 
 articles the witness had omitted. Held, the 
 witness could refer to the paper for the pur- 
 pose of refreshing his memory. Huekins v. 
 People's Mutual Fire Int. Co., 31 N. H., 238. 
 
 2. The witness was not released at the time 
 he gave his evidence, but before the trial was 
 over a release was granted. Held, it was 
 proper for the court to allow him to be reex- 
 amined, and for that purpose it was sufficient 
 to ask him if the testimony already given by 
 him was true. National Fire Ins. Co. o. Crane, 
 16 Md., 260. 
 
 3. The memory of witness was exhausted as 
 to the contents of a letter not produced. He 
 was then asked if it contained a particular 
 passage. ZTe^d, the question was proper. Cour- 
 teen v. Toute, 1 Camp., 43. 
 
 XXI. Keasons. 
 
 A witness testified that she asked a cer- 
 tain question, and she was then asked if there 
 was any particular reason in her mind for put- 
 ting the question. Held, competent. liailway 
 Passenger Ass. Co. v. Warner, 1 N. Y. 8.0^ 
 21 Add. 
 
 EXAMINATION UNDER OATH. 
 
 (See Pbooi"! of Loss.) 
 
 I. WhES a FArLTIRE TO SUBMIT TO, 18 A DB- 
 TESSE TO THE ACnOH. 
 
 II. When a pailuke to stibmit to, is ko db- 
 
 FENBE TO THE ACTION. 
 
 I. When a FAiLirEE to submit to, is a 
 defense to the action. 
 
 1 . The policy required insured, if required, 
 to submit to an examination under oath. In- 
 sured filed the ordinary proofs of loss, and 
 insurers sought examination of insured, but 
 were unable to find him, notwithstanding duo 
 diligence was used for that purpose. A cred- 
 itor attached the claim. Held, the creditor 
 stood in DO better position than the insured, 
 
 271 
 
643 
 
 EXECUTION — EXPLOSION. 
 
 544 
 
 When a loss within the policy. 
 
 and no recovery could be had. Harris v. 
 Phanix Ins. Oo., 35 Conn , 310. 
 
 2. Stipulated : " Insured shall, if required, 
 submit to an examination under oath by the 
 agent or attorney of the company, and answer 
 all questions as to his knowledge of anything 
 relating to the loss or damage, and subscribe 
 it if reduced to writing. Such an examina- 
 tion was demanded and part of it reduced to 
 writing, when it was adjourned for three 
 weeks, to be then completed, to which insured 
 consented. At the expiration of that time, he 
 refused to sign that which had been completed, 
 or to continue the examination. Held, the re- 
 fusal of insured was captious and unwar- 
 ranted ; that the court should have dismissed 
 the actions, because they were prematuiely 
 brought. Bonner v. Home Ins. Co., 13 Wis., 677. 
 
 II. When a failure to submit to, is 
 
 NO DEFENSE TO THE ACTION. 
 
 1. The policy bound insured to furnish 
 proofs of loss, and if required, to submit to an 
 examination under oath. Held, the examina- 
 tion contemplated related to matters pertinent 
 to the loss; that the amounts for which the 
 insured had settled with other insurers of the 
 same property were impertinent, and insured 
 were not bound to give any information con- 
 cerning them; if they made settlements with 
 some of the insurers for less than the sum in- 
 sured, no inference could "be drawn from that 
 fact that the claim was exaggerated, because a 
 compromise, proposed or accepted, is no evi- 
 dence of an admission as to the amount of the 
 debt. Insurance Companies v. Weides, 14 
 Wall., 375. 
 
 2. The contract conferred the right upon 
 the insurer to require the insured to submit 
 to an examination under oath, and answer all 
 questions touching any thing that related to 
 the loss or to the claim, and to subscribe it 
 after it shall be reduced to writing. Held, if 
 an examination was once made and com- 
 pleted, insured could not be required to sub. 
 mit to a further examination under oath, 
 although he promised a further and future 
 examination. Moore v. Protection Ins. Co., 29 
 Me., 97. 
 
 3. Stipulated: " Whenever required in writ- 
 ing, the insured shall produce their books of 
 accounts and other vouchers in support of 
 tjteir claim, etc.; also, if required, submit to 
 
 27a 
 
 an examination under oath. Held, if a de- 
 mand was made for books of accounts or for 
 an examination under oath, after the loss be- 
 came due or alter action brought, it was a 
 mere nullity. Aurora fire Ins. Co. n. Johnson, 
 46 lud., 315. 
 
 4. Insured presented a paper purporting to 
 be preliminary proofs, and insurers' agent 
 subsequently notified him, that he must pro- 
 duce his books and papers, and submit to an 
 examination under oath. The notice was 
 given June 19th, during a prevailing epi- 
 demic; insured, his wife and child being 
 then in a carriage proceeding to the steam- 
 boat which was about to leave tliat evening. 
 They went to Boston and its vicinity, and did 
 not return till September 12th. Held, the court 
 could not say, that there was or was not suf- 
 ficient excuse for his failure to appear and 
 submit to the examination. It was not in- 
 cumbent upon the plaintiff to comply under 
 every condition of circumstances ; that the 
 question was one of fact, and to some extent 
 of intention, for tlie jury. Phillips v. Protec- 
 tion Ins. Co., 14 Mo., 220. 
 
 EXECUTION. 
 
 (See Lktt of ExsccnoK.) 
 
 EXPERTS. 
 
 (See Etidbnob X.) 
 
 EXPLOSION. 
 
 I. When a loss ■within the policy. 
 
 II. NOT A LOSS WITHIN THE POLICY, 
 
 I. "When a loss within the polic^t. 
 
 1. The explosion was caused by fire. Held, 
 fire was the proximate cause of the loss. 
 Waters v. Merchants I/mismlU Ins. Co., 11 
 Pet., 213; 1 McLean, 275. 
 
 2. The municipal authorities bjew up a 
 building for the purpose of staying a confla. 
 
545 
 
 EXPLOSION. 
 
 546 
 
 When not a loss within the poUcy 
 
 gration. Held, a loss by Are and not by ex- 
 plosion. Citjf Fire Ins. Co. v. Corlies, 21 
 Wend., 367. 
 
 3. Stipulated : " Insurers shall not be lia- 
 ble for an explosion by gunpowder." The 
 building was blown up to prevent the spread 
 of fire. Held, a loss within the policy. 
 Oreentoald o. Insurance Co., 3 Philadelphia, 
 333. 
 
 4. Policy on steamboat. The risks assumed 
 were of, " The seas, rivers, fires, enemies, pi- 
 rates, rovers, assailing thieves, and all other 
 misfortunes which shall come," etc. Held, 
 it included a loss caused by the explosion of 
 her boilers. Perrin «. Proteelion Ins. Co., H 
 Ohio, 147. 
 
 6. Stipulated : " Not liable for damages oc- 
 casioned by the explosion of a steam boiler, 
 nor from damages resulting from such explo- 
 sion, nor explosions caused by gunpowder, 
 gas or other explosive substances." The fire 
 was caused by an emission of gas from oil in 
 process of distillation, which settled near the 
 floor and came in contact with the fire under 
 the stills. The fire extended into the receiv- 
 ing house, where gas and oil were ignited and 
 an explosion occurred. The ignited oil be- 
 spattered the works and they were consumed. 
 Held, the exemptions were confined to dam- 
 age by explosions, but insurers were liable for 
 losses by fire. Soatman's Fire and Marine 
 Int. Co. V. Parker, 23 Ohio St, 85. 
 
 6. Stipulated: "Not to be liable for any 
 loss or damage by fire caused by means of an 
 invasion. Insurrection, riot, civil commotion, 
 or military or usurped power, nor for any loss 
 cansed by the explosion of gunpowder, cam- 
 phene, or any explosive substance, or explo- 
 sion of any kind." An explosion occurred, 
 and fire ensued, by which the property in- 
 sured was consumed. Held, insurer was ex- 
 empted from losses cansed by explosion only; 
 but not from losses by fire cansed by explo- 
 sion. Commercial Ins. Co. v. Robinson, 64 111., 
 265. 
 
 7. " On steamboat, against perils of rivers, 
 fires, etc., and all other perils, losses, and mis- 
 fortunes which shall come to the hurt, etc., 
 according to the general laws of insurance." 
 Stipulated: "Not liable for any partial loss 
 or particular average, unless it shall amount 
 to ten per cent on the value of the boat; nor 
 in case of partial loss shall they be liable for 
 the bursting of boilers or breaking of engines 
 
 18 
 
 unless occasioned by external violence." She 
 left St Louis for New Orleans with a full cargo, 
 and when about six hundred miles out, near 
 Alexander's wood yard, while she was under 
 weigh, the middle boiler exploded, and the 
 two outside boilers were thrown overboard, 
 by which much damage was done to the en- 
 gine, hull and cabin furniture. Coals were 
 thrown out from the fhrnaces, which set fire 
 to the boat, and she commenced leaking very 
 badly. The steamboat " St. Louis " came 
 alongside, assisted in putting out the fire, 
 stopped tlie leaks, her cargo was readjusted, 
 and the " Wilmington " was towed back to St 
 Louis. Held, the explosion of Uie boiler was 
 one of the perils within the general terms of 
 the policy (citing Perrin «. Protection Ins. Co., 
 1 1 Ohio, 147). Held, also, the words external 
 violence were to be confined to coses of par- 
 tial loss only, and they had no application to 
 a case of total or of constructive total loss. 
 Citizens Ins. Co. v. Qlasgoa, 9 Mo., 406. 
 
 II. Whek not a loss -within the 
 
 POLICT. 
 
 1. Cotton stored in a warehouse was insure4 
 against fire, but stipulated : " Insurers ahaU 
 not be liable for loss or damage that may 
 happen by means of any invasion, inswrec-. 
 tion, riot or civil commotion, or any military 
 or usurped power, explosion, earthquake or 
 hurricane." In a warehouse directly across a 
 street fifty feet wide, an explosion ocQurredi 
 which threw down the walla of that ware- 
 house, and scattered combustible nivat^ia^s in 
 the street and an extensive coixfls^ration re-, 
 suited, in which the warehouse iix ^hich this 
 cotton was stored was entirely consumed. 
 The fire was not communicated to it directly 
 from the building in which the explosion 
 occurred, but from another building fired by 
 the explosion. Held, if the fire happened or 
 took place by means of the explosion, the ln> 
 surers were not liable; and to ascertain that 
 fact, it was necessary to determine whether 
 any new cause had Intervened between the 
 fact accomplished and the alleged cause ; for 
 if a new force or power had intervened, of 
 itself sufiScient to stand as cause of the misfor- 
 tune, the alleged cause must be considered too 
 remote. The fact that the fire was carried to 
 the cotton, after it had burned another build- 
 ing, supplied no new force or power, and 
 
 273 
 
547 
 
 EXPLOSION. 
 
 548 
 
 When not a loss within the policy. 
 
 therefore no new cause had intervened. The 
 Influence of the hreeze, moving in a direction 
 toward the warehouse, was not a new cause of 
 itself suflScient to stand as the cause of the 
 misfortune, and the insurer was discharged. 
 Insurance Co. v. Tweed, 7 Wall., 44. 
 
 2. Policy contained an exception against 
 loss occasioned hy explosion of steam holl- 
 ers. There was a holler in use which exploded 
 and fire ensued. Seld, the insurer was not li- 
 able. St. John V. American Mutual Fire and 
 Marine Ins. Co., 11 N. Y., 516; 1 Duer, 371. 
 
 3. Stipulated: "Insurers shall not be li- 
 able for any derangement or breakage of the 
 machinery or bursting of the boilers, unless 
 occasioned by stranding." The plaintiff al- 
 leged that, while she was on a voyage on 
 Lake Michigan the boilers thereof burst, and 
 the said body, tackle, furniture, of said propel- 
 ler, and the boilers were blown to pieces, and 
 she sank, was destroyed, and thereby, and n ot 
 otherwise, became and was totally lost. Jleld, 
 the exception covered not only the bursting 
 of the boilers, but all injuries directly pro- 
 duced by explosion. Strong v. Sun Mutual 
 Ins. Oo., 31 N. T., 103. 
 
 4. Stipulated : " Not liable for any loss or 
 damage by fire which shall happen or arise 
 from any foreign invasion, * * * or by 
 any explosion." One of the boilers exploded 
 and caused the fire. Held, insurers were not 
 liable. Hayward v. Liverpool and London 
 Ins. Go., 42 N. Y; 3 Keyes, 456; b. c, 2 Abb. 
 Dec, 349; 7 Bos., 385; 5 Abb. Pr. (N. S.), 142. 
 
 5. On ship, " Not liable for loss or damage 
 by the bursting of boilers, collapsing of flues, 
 or breakage of machinery, unless occasioned 
 by some unavoidable external cause, or fire 
 ensues; but any loss or damage occurring 
 subsequently to, and in consequence of Uie 
 bursting of boilers, etc., is covered by the 
 policy." The boiler bursted, steam escaped in- 
 to the body of the vessel, tearing off the fore- 
 quarter of her bow, through which water 
 came in. She filled and went down in 
 ten minutes. Held, the loss was immediate, 
 not subsequent to the bursting of the boiler, 
 hence, the insurers were not liable. Htjnt, J. 
 dissenting, whose opinion ought to be read. 
 Evansii. Columbian Ins. Co., 44 N. Y., 146. 
 
 6. Stipulated: "Not liable for loss by 
 lightning or explosion of any kind unless fire 
 ensues, and then for damage by fire only." 
 A vapor evolved from the material in process 
 
 274 
 
 of manufacture filled the room, came in con- 
 tact with a burning lamp, and an explosion oc- 
 curred, taking off the roof, tearing down a 
 large portion of the walls and doing great 
 damage to the machinery. A fire ensued, but 
 the damage by it was slight. Held, insurers 
 were liable for the damage caused by the fire, 
 but not for that caused by explosion. Briggs 
 D. North American Ins. Co., 53 N. Y., 446; 
 Sam^ «. North British and Mercantile Ins. Co., 
 66 Barb., 335 ; Same v. People's Ins. Co., id., 330. 
 
 7. Stipulated : " Not liable for any loss or 
 damage occasioned by or resulting from any 
 explosion whatsoever, whether of steam, gun- 
 powder, camphene, coal oil, gas, nitro-glycep- 
 ine, or any explosive article, or any sub- 
 stance, unless specially insured against, and a 
 special premium paid tlierefor." Insured had 
 special permission to rectify by steam not 
 generated in the building. A very inflam- 
 mable vapor was evolved from the process of 
 rectifying, which mixed readily with the at- 
 mosphere, and if brought in contact with 
 flame, would necessarily explode. This vapor 
 came in contact with two jets of gas, caused 
 an explosion and fire. Held, loss by fire^ 
 caused by explosion, was excepted. United 
 Life, fire and Marine Ins. Co. v. Foote, IIZ Ohio 
 St., 340. 
 
 8. The risks assumed were of rivers, fires, 
 enemies, pirates, assailing thieves, etc. Stipu- 
 lated : " Not liable for any loss or damage 
 which may arise from, or be occasioned by, 
 the said boat being unduly laden, nor from 
 any loss arising from the explosion of gun- 
 power, the bursting of the boilers, the collaps- 
 ing of flues, or breaking of tlie engine, or any 
 part thereof, except from unavoidable external 
 cause or causes. Her boilers exploded, un- 
 covered the fire bed, and brought the timbers 
 in contact with the fire. Held, insurer was 
 not liable for a loss by fire caused by the 
 bursting of the boilers. Montgomery -o. Fire- 
 men's Int. Co., 16 B. Mon., 427. 
 
 9. On a two story store for one year. A fire 
 broke out in a building about 200 feet distant, 
 in which there was a quantity of gunpowder, 
 which exploded and caused the walls of the 
 building insured to crack open, drove in the 
 windows and blinds, loosened the plastering 
 and slates, doing damage to the amount of 
 $950, hut the fire did not reach the building. 
 Held, insurers were not liable. CabeUero ». 
 Home Mutual Ins. Co., 15 La. An., 217. 
 
549 PALLING BUILDINGS — FALSE SWEARING, OR ATTEMPT AT FRAUD. 550 
 
 What is evidence of. 
 
 10. Stipulated: " Not liable for any damage 
 or loss arising from the bursting of boilers, col- 
 lapsing of flues, or breaking of engines, unless 
 fi-om unavoidable external cause, or from con- 
 sequences resulting therefrom." The boiler 
 burst and tore away the stanchions and sup- 
 ports of the upper deck, so that it fell down 
 into the flirnace and took Are, and she was 
 scuttled to arrest it. Held, insurers were not 
 liable, for the loss vras within the excepted 
 peril. Roe v. Golumbus Ins. Co., 17 Mo., 301 ; 
 MeAUister v. Tennessee Fire and Marine Ins. 
 Co., id., 306. 
 
 1 1. A gunpowder magazine, about a mile 
 distant, exploded from some cause unknown, 
 and damaged the premises which were insured 
 against loss by fire. Held, not a loss within the 
 policy. Everett o. London Ass. Co., 19 C. B. 
 (N. S.), Vm-, s. c, 11 Jur. (N. S.), 546; 34 L. J. 
 C.P.,299; 13W. R.,863. 
 
 12. Stipulated: " The company will not be 
 liable for loss or damage by explosion, except 
 for such loss or damage as shall arise by rea- 
 son of explosion by gas." Insured carried on 
 the business of extracting oil from shoddy, 
 which emitted an inflammable and explosive 
 vapor. It ignited, set fire to the premises, 
 then exploded, and caused a further fire. 
 There was damage by explosion as well as by 
 the fire. Held, the word " gas " meant ordinary 
 illuminating coal gas; that insurers were not 
 liable for any of the consequences of explo- 
 sion, unless it was an explosion of illuminat- 
 ing gas; that they were liable for all damages 
 caused by fire not the result of explosion, and 
 for all damages caused by exertions made to 
 extinguish the fire, whether spoiling goods by 
 water, throwing articles of furniture out of tlie 
 window, or the destruction of a neighboring 
 house by explosion, for the purpose of check- 
 ing the progress of the fire. Stanley v. Western 
 Ins. Co., 3 L. R Ex., 71 ; b. C, 37 L. J. Ex., 73; 
 16 W. B., 369. 
 
 FALLING OF BUILDINGS. 
 
 1. On goods contained in a granite store. 
 One of the walls gave way and half of the 
 store and the adjoining building fell. Before 
 the goods could be taken away a fire occurred, 
 in consequence of which the goods were 
 greatly damaged by fire and water. HM, a 
 
 loss within the policy. Lewis v. Springfield 
 Fire and Marine Ins. Co., 10 Gray, 159. 
 
 2. Stipulated : " If a building shall fall ex- 
 cept as the result of fire, the policy shall im- 
 mediately cease and determine." This was a 
 church building on posts or blocks, and w.-is 
 blown partly off the posts, greatly damaged, 
 rendered unfit for occupancy, and most, if not 
 all the movable furniture was taken out. 
 Some days thereafter it took fire and was 
 burned. Held, so long as the building re- 
 mained standing there could be no exemption 
 from liability under this clause of the policy, 
 no matter how greatly it may have been de- 
 preciated in value by wind or other causes, 
 111. S. C. JPVremen's Fund Ins. Co. ». Congre- 
 gation ofBod^h Skolem, 8 Chi. Leg. News, 178. 
 
 3. On building. The floors were heavily 
 loaded with meichandise, and by reason of the 
 overloading, or some defect of construction, it 
 fell; a fire ensued, and the fallen materials 
 were consumed. Held, the subject insured 
 had become a mere congeries of materials be- 
 fore the fire occurred, caused by a peril not 
 insured against; hence the flrp was not the 
 immediate cause of the loss. Name ®. Home 
 Mvt. Ins. Co., 37 Mo., 430. 
 
 FALSE SWEARING, OR ATTEMPT AT 
 FEAUD. 
 
 (See Fbaud.) 
 
 I. What is EvroENCE op. 
 II. NOT EvnosafCE OP. 
 
 I. What is evidence oe. 
 
 1. Under the defense of fraud properly- 
 pleaded: HM, if insured exhibited to the 
 company books of accounts containing false 
 entries as to the quantity and value of the 
 goods insured, for which claim was made, it 
 would be fraud or an attempt at fraud within 
 the meaning of the policy, and would defeat 
 recovery. Under a plea setting up the defense 
 of false swearing, it was held, false swearing 
 by the insured, either in the prelirainai-y 
 proofs or in the preliminary examination on 
 oath, in a matter material, with intent to mis- 
 lead the company, would work a forfeiture of 
 the policy; and the terms upon which the in 
 
 275 
 
551 
 
 FALSE SWEARING, OR ATTEMPT AT FRAUD. 
 
 552 
 
 What is evidence of. 
 
 snred had settled -with other compsnies who 
 had insured Ihe same property were material, 
 and a false statement in respect to them would 
 defeat the insured's right to recover. Weide v. 
 Germanialns.Oo. 1 Dil. Cir. C, 441. 
 
 2. Stipulated: "Any fraud or attempt at 
 fraud or false swearing by the insured shall 
 make this policy void." Seld, if insured, in 
 stating his loss in the preliminary proofs, 
 knowingly and falsely stated an over valuation 
 of the properly with a view to deceive the 
 company and to induce payment for more than 
 the value of the property lost, he could not re- 
 cover. Oeib V. International Ins. Co., 1 Dil. 
 Cir. C, 443. 
 
 3. Stipulated : " All fraud or false swearing 
 shall cause a forfeiture of all claims, and be a 
 full bar to all remedies on the policy." The 
 first jury found the damages at $2,000, the val- 
 ue of the goods being stated in the preliminary 
 proofs of loss at $2,400. The second jury 
 found a verdict (nearly three years after the 
 loss) for Jl.OfiO. Seld, the difference between 
 the amount claimed as lost, and that allowed 
 by the jury was so great that it raised the in- 
 ference that insured had attempted to defraud 
 insurers, and he thereby forfeited all his rights 
 under the policy. Wali v. Howard Ins. Co., 51 
 Me., 32. 
 
 4. Stipulated : " Any attempt at fraud on the 
 part of the insured shall cause a forfeiture of 
 all claims under this policy." Meld, if there 
 was any evidence tending to show that in- 
 sured, by not complying with the conditions 
 of the policy, attempted to defraud the insur- 
 ers, the court should have instructed that no 
 recovery could be had. Security Ins. Co. v. 
 Fay, 22 Mich., 467. 
 
 6. Policy made January 2d, on household 
 furniture, etc. Two days thereafter the hus- 
 band of insured took twenty-six pillows and 
 pillow slips from the house, put them in boxes 
 and sent them to Huron Station, Wayne 
 county, to one Baumeister, who forwarded 
 them to the plaintiff, but they were in her pos- 
 session wlien the Are took place on the 30th 
 of same month, and were included in the pre- 
 liminary proofs of loss. Upon the trial, for 
 the purpose of showing that they were not 
 fraudulently included in the claim, insured 
 was allowed to prove that insurer's agent said 
 to him, pnt in all the plaintiff had, that there 
 was a deduction to be made by the company 
 anyway; that the witness told the agent he 
 276 
 
 wanted to correct the proof; that the agent said 
 it will be time when you make the deduction 
 to fix that all right. HUd, the evidence was 
 not admissible, because it did not tend to 
 prove that the agent knew anything about the 
 goods that w^ere taken away. Hanover Fire 
 Ins. Co. ii. Mannatson, 29 Mich., 316. 
 
 6. A fraudulent over-valuation avoids the 
 policy. Hersey v. Merrimack County Mutual 
 Fire Ins. Co., 27 N. H., 149. 
 
 7. An over-valuation by the owner is a cir- 
 cumstance to be considered in connection with 
 others tending to show that the owner des- 
 troyed the property with the purpose of de- 
 frauding the company. Insurance Co. of North 
 America v. McDowell, 50 111., 120. 
 
 8. Stipulated: "Unless the interest of the 
 insured be truly stated, the policy shall he 
 void." In the preliminary proofs, the insured 
 stated that his title was exclusive and unin- 
 cumbered. The only title he had was incum- 
 bered by a lien for the whole consideration 
 which he had bid for the property at a decre- 
 tal sale, and it was also incumbered by his 
 wife's dower as widow of a former husband, 
 and none of the purchase money had been 
 paid. Held, he was guilty of voluntary fraud 
 and false swearing, in violation of an express 
 condition of the policy, hence the policy was 
 absolutely void. Seeurify Ins. Co. v. Bronger, 
 6 Bnsh., 146. 
 
 9. The loss by fire appeared very small, and 
 persons who first entered the store agreed that 
 it was almost empty. Insured persisted, how- 
 ever, in claiming a large amount as lost. Held, 
 these were circumstances sufficient to jirevent 
 a recovery. Regnier v. Louisiana State Mairint 
 and Fire Ins. Co., 12 La. (O. S.), 836. 
 
 10. The property insured was worth abcut 
 $8,000. It was represented as worth $12,000. 
 Held, a fraudulent over-valuation, which viti- 
 ates the contract. Catron c. Tennessee Ins. 
 Co., 6 Humph., 176. 
 
 11. On goods valued at £5,000. There was 
 a loss and the insurer had signed an adjust- 
 ment on invoices and bills of lading produced 
 by insured representing tlie above value; but 
 these were proved fictitious and tlie bills 
 of lading interlopated. There were goods 
 shipped and lost to the value £1,400, and no 
 more. Held, an intent to cheat the insurers 
 vitiated the contract. Haigh v. De La Cour, 
 3 Camp., 319. 
 
 1 2. Insured claimed for a loss amounting 
 
553 
 
 FALSE SWEARING, OR ATTEMPT AT FRAUD. 
 
 554 
 
 What is not evidence of. 
 
 to £418. The court instructed the jury tliat 
 although insured had not caused the fire, yet 
 if he made a fraudulent claim against the 
 company, he must fail in the action, because 
 he had attempted to perpetrate a fraud. C?iap- 
 man v. Pole, 23 L. T. (N. S.), 306. 
 
 13. Plea of fraud. Held, if the claim was 
 willfully false in a substantial respect, the de- 
 fendant was entitled to the verdict If there 
 was no fraud, the plaintiflf was entitled to a 
 verdict for the amount he had been damnified 
 by the fire. OouUtone v. Royal Ins. Co., 1 
 P. & F., 276; Britton v. Royal Ins. Co., 4 id., 
 905. 
 
 14. The jury rendered a vetdict of £300 for 
 loss of the mill, and £200 for loss of machine- 
 ry. Tlie plaintiff claimed the value of the 
 former was £600. Held, it was a question for 
 the jury to determine whether the valuation 
 was made iona fide or mate fide; that as the 
 verdict was for the claimant, the finding re- 
 pelled all presumption that the over-valuation 
 was 'mala fide. Rice e. Provincial Ins. Co., 7 
 V. C. C. P., 548. 
 
 1 5. The issue sent to trial was, whether the 
 insurance was effected by the defender on a 
 fraudulent over-valuation, with the intention 
 of destroying the same by fire. The jury 
 found that it was effected on a fraudulent 
 over-valuation, but not with the intention of 
 destroying the same by fire. Hdd, a verdict 
 for the defender. Hereulet Ins. Go. v. Hunter, 
 15 C. C. 8., 800. 
 
 16. Stipulated: "Claimant shall forfeit all 
 benefit under the policy, if there appears any 
 fraud in the claim by false swearing or other- 
 wise. Held, the court will reject the claim if 
 it is far in excess of the actual loss to the 
 knowledge of the insured. Grenier v. Monarch 
 Fire and Life Ass. Co., 7 L. C. Jur, 100. 
 
 17. R S. and wife conveyed to plaintiff and 
 wife the property insured, who gave a bond to 
 support R S. and wife during their lives. The 
 husband insured the property in his own 
 name, and in making proof of loss, he made 
 oath that he was the absolute owner at the 
 time of the loss. Held, false swearing, which 
 vitiated the policy. Mason o. Agricultural 
 Ins. Co., 16 U. C. C. P., 493. 
 
 18. |1,100 on buildings valued at £750. A 
 few days before this policy was made, he pro- 
 cured insurance on the same and a shed 
 worth $400, valuing them at $1,400. The jury 
 found a verdict for the plaintiff The evi- 
 
 dence as to their value conflicted. Plaintiff 
 did not explain the cause for the difference in 
 his valuations. Held, the evidence supported 
 a plea of fraudulent over- valuation, and a new 
 trial was granted. Dickson v. Squitable Iru. 
 Co., 18 U. C. Q. B., 346. 
 
 19. Insured claimed a loss of $15,989.18, 
 giving items, stating upon oath that there was 
 several thousand dollars worth of goods de- 
 stroyed by the fire, besides the above men- 
 tioned goods, the particular description of 
 which, "I cannot now give." The jury re- 
 turned a verdict for $12,043 and interest. The 
 court refused to instruct that the plaintiff 
 could not recover, if he had attempted to de- 
 fraud the insurer. Held, error. Phcenix Ins. 
 Co. V. Munday, 5 Cold., 547. 
 
 20. Suit on two policies both stipulated. 
 " If there shall be fraud in the claim made for 
 such loss or false declaring or aflSrming in the 
 proof thereof, the claimant shall forfeit all 
 beneflt under this policy." Held, whether 
 there was a violation of this provision was a 
 question for the jury; it was the duty of the 
 court to instruct if there was a false declara- 
 tion or affirmation made by the insured, the 
 finding must be for defendant Oerhauser ». 
 North British and Mercantile Ins. Co., 6 Nev., 
 15. 
 
 II. What is not evidence of. 
 
 1. If there is a material discrepancy be- 
 tween the statement of loss and the statement 
 testified to at the trial, it does not follow that 
 the claimant is guilty of fraud and false 
 swearing, for the statements made in the proof 
 of loss may have been honestly though erro- 
 neously made. Insurance Companies ®. Weides, 
 14 Wall., 375. 
 
 2. If the insured rendered a false account 
 of the amount of the loss for the purpose of 
 committing a fraud on the insurance company, 
 he cannot recover; but, if the account of the 
 loss was the result of mistake, without fraud 
 or intent to defraud, insured is entitled to re- 
 cover for the loss actually sustained. HueJt- 
 berger v. Merchants Fire Ins. Co., 4 Biss., 265. 
 
 3. The defense was that insured presented 
 and insisted upon a claim much greater than 
 was actually sustained. Hdd, the onus was 
 upon insurer to make out that insured know- 
 ingly and fraudulently claimed for a loss 
 greater than they had sustained. The law 
 
 277 
 
555 
 
 FALSE SWEARIKG, OR ATTEMPT AT FRAUD. 
 
 556 
 
 Wliat is not evidence of. 
 
 does not presume fraud. Tlie evidence to es- 
 tablish it must be direct and positive, or the 
 circumstaaces so strong, convincing and pre- 
 ponderating as to admit of no other rational 
 conclusion. HucTiberger v. Home Ins. Co., 5 
 Biss., 106. 
 
 4. Stipulated: "All attempt at fraud by- 
 false swearing or otherwise shall cause a for- 
 feiture of all claims under the policy." The 
 plaintiffs claimed a loss of $9,989.03, and so 
 testified at the trial. The referees found that 
 it amounted to $6,500 only. Held, the differ, 
 ence between the finding and the claim was 
 not even presumptive evidence of fraud. 
 Unger x. People's fire Int. Co., 4 Daly, 96. 
 
 5. If the over-valuation was by mistake or 
 inadvertance, the jury must find for such an 
 amount of loss as had actually occurred ; but, 
 if the over-valuation was knowingly made, 
 with a fraudulent Intent, the jury must find 
 against the plaintiff. Hickman v. Long Island 
 Ins. Co., Edm. S. C. (N. T.), 374. 
 
 6. The preliminary proofs stated the actual 
 value of the goods at the time of the fire, 
 $3,143; that the value of goods totally de- 
 stroyed amounted to 13,933.34, and the damage 
 to those not actually destroyed, amounted to 
 $107.43. The whole amount insured was 
 $3,000; $1,000 by, defendant, and $1,000 by 
 another company. The jury found a verdict 
 for 1413.37, which, in effect, was a finding 
 that the loss did not exceed $675.06. Held, 
 the difference between the loss stated in the 
 proofs and that found by the jury was not evi- 
 dence of an attempt at fraud, because the jury 
 were instructed if they believed that the in- 
 sured in making his claim intended to attempt 
 a fraud against insurers, to find a verdict 
 against him; and their finding in his favor 
 was an express negation of any attempt at 
 fraud on his part. Wolf v. Goodhue Fire Ins. 
 Co., 43 Barb., 400. 
 
 7. Stipulated: " All fraud or false swearing 
 shall cause a forfeiture of this insurance." 
 Held, this stipulation did not apply to the 
 original conception of tlie contract, for at that 
 time the least want of good faith on the part 
 of insured would, at common law, vitiate it; 
 hence the condition must be taken as appli- 
 cable to the preliminary proofs only, ferrist 
 V. North American Fire Ins. Co., 1 Hill, 71. 
 
 8. Insured made claim, but before suit was 
 brought, corrected the statement. Held, he 
 had the right to explain and correct, and these 
 
 278 
 
 did not in themselves establish fraud and 
 false swearing (citing Britton v. R. Ins. Co., 4 
 Fost. & Fin., 905). Jones v. Meclianics Fire 
 Ins. Co., 36 N. J., 39. 
 
 9. Insured stated the amount of his loss at 
 $2,800, making the necessary aflidavit in con- 
 nection with it. The jury rendered their ver- 
 diet for $1,853. Held, not evidence of fraud and 
 false swearing. Moore v. Protection Ins. Co., 
 29 Me., 97. 
 
 10. Two policies, one on stock for $1,000, 
 and one on furniture for $500. There were 
 two other policies on the stock; one for |1,000 
 and the other for $500. The claim was for 
 $3,500 on stock; the jury found a loss of 
 $1,750. Held, the difference was not so great 
 as to raise the presumption of fradulent in- 
 tent on the part of the insured. WiUiams v. 
 Phcenix Ins. Co., 61 Me., 67. 
 
 11. Stipulated: "All false swearing or fraud 
 shall work a forfeiture of all claims." Held, 
 the swearing must not only be false, but it 
 must be willfully and knowingly done, with 
 intent to cheat the company. FranUin Fire 
 Ins. Co. v. Updegraff, 43 Penn. St., 350. 
 
 12. The policy required insured to deliver 
 particlars of the loss — a bill of items. He 
 made one as follows : " One story frame house 
 $200, dry goods $1,000, groceries $150, queens- 
 ware $25, hardware $25— $1,400. The jury 
 gave a verdict for $1,200. Held, not evidence 
 that he was guilty of false swearing for he was 
 not guilty unless he knowingly exaggerated the 
 loss. FranUin Ins. Co. v. Cvlmr, 6 Ind., 137. 
 
 13. Stipulated: "In case of loss, insured 
 shall deliver a particular statement of it, veri- 
 fied by his oath; and any fraud or false 
 swearing shall cause a forfeiture of all claims 
 under this policy." Held, unless the false 
 swearing was done with an intention to de- 
 ceive the insurer, it did not affect the right of 
 insured to recover; also, tlie false statement 
 must be willfully made in respect to a matter 
 material. Marion n. Great Bepublie Ins. Co., 
 35 Mo., 148. 
 
 14. Where the jury have found that there 
 was no fraud, in fact, their finding cannot be 
 disturbed, notwithstanding insured, in mak- 
 ing proof of loss, included property not within 
 the policy. Sims v. State Ins. Co., 47 Mo , 54 
 
 15. In the preliminary proofs insured 
 claimed for 388 hides more than were found, 
 by the testimony upon the trial, to have been 
 in the premises. Held, if the error was with- 
 
557 
 
 FALSE SWEARING, OR ATTEMPT AT FRAUD. 
 
 558 
 
 What is not evidence of. 
 
 out intentioa to defraud, it did not affect the 
 right of insured to recover. Planters MtU. Ins. 
 Co. 0. J)<^^rd et al, S8 Hd., 382. 
 
 Iti. A small over-valuation, such as might 
 result from a difference of opinion will not 
 vitiate the policy; but if the over- valuation 
 was gross, knowingly made, it avoids the 
 policy. Protectioii Ins. Co. o. SaU^ 15 B. Mou., 
 411. 
 
 1 7. Stipulated : " If there shall he any fraud 
 or false swearing on the part of the insured, 
 the claimant shall forfeit all claim hy virtue 
 of this policy. The action was brought to re- 
 cover on a stock of goods for which the loss 
 was stated at $15,549. The jury found a ver- 
 dict for $8,000. Held, he was' entitled to judg- 
 ment, Marclusseau n., Merchants Ins. Co., 1 
 Rob. (La.), 438. 
 
 18. The policy was made to H. as agent, 
 and he swore to the statement of the loss, in 
 which he described it as his loss. Hdd, his 
 oath necessarily referred to the character in 
 which he acted and was recognized, when he 
 effected the insurance. Hmderson v. Western 
 Marine and Fire Ins. Co., 10 Rob. (La.), 164. 
 
 19. There was a large difference between 
 the amoimt claimed in the proofs of loss and 
 that proven at tlie trial. Meld, it was proper 
 for the court to tell the jury that they must de- 
 termine whether the difference was to be fairly 
 attributed to an intention to defraud, or the 
 result of innocent error. Hoffman v. Western 
 Marine and Fire Ins. Co., 1 La. An., 216. 
 
 20. Insured claimed $2,600 as the amount 
 of his loss. The jtiry rendered a verdict for 
 $1,800 and a remittitur was entered to the 
 amount of $800. Held, the difference be- 
 tween the finding of the jury and the amount 
 claimed was not necessarily evidence of fraud 
 and false swearing, nor did it impose on in- 
 sured any necessity to make to make any fur- 
 ther explanation of the discrepancy; that the 
 remittitur was the act of the attorney and not 
 of the insured. Seek e. Cfermania Ins. Co., 83 
 La. An., 510. 
 
 21. Insured made the application and in it 
 set a value upon the premises. Insurer's 
 agent made a survey of them, and the local 
 agent who issued the policies also made an 
 examination of them. Held, it was the agent's 
 duty to object to the valuation if it was too 
 high ; it was to be presumed that the agent 
 had some knowledge of the value of the prop- 
 erty and that though the valuation was higher 
 
 than it ought to have been, that would not of 
 itself vitiate the policy. The policy did not 
 stipulate against an over-valuation; an over- 
 valuation would not of itself avoid the policy. 
 Insurance Company of North America «. Me- 
 Douiell, 50 111., 120. 
 
 22. Stipulated: -'An over-valuation will 
 avoid the policy ; that in any event the com- 
 pany shall not be liable for over two-thirds of 
 the cash value of the buildings." There was 
 an over- valuation of $100. Tlie value of the 
 goods lost being $700 and the insurance upon 
 them $800. Held, it did not avoid the policy. 
 BoTiham v. Iowa Central Ins. Co., 2o Iowa, 828. 
 
 23. Proofs of loss made in the name of S. 
 & P. were written by insurer's agent, but it 
 appeared that the property really belonged to 
 the wife of S. Held, it was for the jury to say 
 whetlier the error was an innocent mistake, 
 and if it was, the plaintifi^s right to cover 
 could not be defeated on that ground. Par- 
 ker «. Amasum. Ins. Co., 34 Wis., 363. 
 
 24. Insurer defended on the ground of 
 fraud, in that insured claimed a much larger 
 .sum than was actually due. Held, the differ- 
 ence between the estimate of the loss and that 
 actually proved at the trial was not conclu- 
 sive; that if it could reasonably be accounted 
 for on the score of opinion, it was entitled to 
 no weight; before a jury would be justified in 
 convicting the insured of fraud and perjury, 
 they must 1)e satisfied there was a material 
 and intentional over-valuation on the part of 
 the insured (citing Moore c. Protection Ins 
 Co., 29 Me., 97). Clark c. Phmnix Ins. Co., 36 
 Cal., 168. 
 
 25. The jury found the cash value of the 
 furniture at the time of the fire, $3,000. Its 
 value in the proofs of loss was $6,000. Held, 
 not evidence of fraud unless there was proof 
 of a willful intent to defraud. 0«rhauser c. 
 North British and Mercantile Ins. Co., 7 Nev., 
 174. 
 
 26. Insured valued her, in his application, 
 at £6,000. There was other insurance for 
 £3,500, and this policy was for £1,000. The 
 evidence was conflicting upon the question of 
 value. Witnesses on one side put her at 
 £3,850, and on the other side she was said to 
 have been worth £5,500. Held, a question of 
 fact for the jury to determine. They found 
 for the plaintiff the sum insured, and he had 
 judgment for it M^Quaig o. Unity Ins. Co., 
 9U.C. C.P.,85. 
 
 279 
 
559 FLOATING POLICIES — FOR ACCOUXT OF WHOM IT MAT CONCERN. 560 
 
 Whose interestB shall be included. 
 
 27. Stipulated: "Insured shall deliver a 
 ■written account of the loss, the value of the 
 property damaged or destroyed, immediatly 
 after the fire, and shall verify the same ; and 
 if there shall appear any fraud or false state- 
 ment in such account of loss or damage, or if 
 such affidavits shall contain any untrue state- 
 ments, the policy shall he void." Plaintiff 
 stated in the affidavit that he was the absolute 
 owner of the buildings insured ; but the proof 
 showed that he did not have title to the lands. 
 Held, the condition referred to the account of 
 the loss, and not to the title. Moss v. Commer- 
 eial Union Ast. Oo., 26 U. C. Q. B., 558. 
 
 28. Plea: The plaintiff had sworn falsely 
 in the particular account of the loss. Held, 
 bad, because it did not appear before whom 
 the oath was made, when it was made, and in 
 what respect the particular statement was 
 false. KeUUvma v. PToteetion Ins. Oo. 1 Allen, 
 N.B.,130. 
 
 FLOATING POLICIES. 
 
 1, On merchandise, tn transitu, in all or 
 any of the brick or stone warehouses, in all 
 or any of the streets, yards or wharfs of the 
 cities of New York, Brooklyn or Jersey City. 
 Stipulated: "As to goods specifically in- 
 sured, the polic}' shall attach only on the value 
 which may exceed the specific insurance, 
 subject to average as follows: In case the 
 property aforesaid, in all the buildings, places 
 or limits mentioned, shall, at the breaking out 
 of any fire or fires, be collectively of greater 
 value than the sum insured, then this company 
 shall pay and make good such proportion 
 only of the loss or damage as tlie sum insured 
 shall beat- to the whole value insured." 
 Plaintiff had merchandise in a warehouse in 
 New York, |386,026 ; specific insurance there- 
 on, 1334,000, and there was a loss of $274,193. 
 Sdd, defendant was not liable to contribute to 
 any portion of the loss, because it did not ex- 
 ceed the whole amount specifically insured. 
 Fairchild n. Liverpool and London Ins. Go., 51 
 N. Y., 65 ; s. c, 48 Barb., 430. 
 
 2, $5,000 on stock of tools, steam engines, 
 etc., in tlie premises known as the Southworth 
 Foundry. Stipulated: " If at the happening 
 of any fire, instired shall have insurance under 
 
 280 
 
 a floating policy or policies not specific, but 
 covering goods generally in places not desig- 
 nated, and yet within the limits that include 
 tlie property herein insured, such policy, as 
 between the insured and this company, shall 
 be considered as covering any excess of sound 
 value of the subject insured, beyond the 
 amount covered by the specific insurances 
 thereon, and to determine the amount for 
 which this company is liable in case of loss, 
 such floating policies shall be considered an 
 insurance on the property to the extent of such 
 excess." There were other insurances on the 
 same subjects to the amount of $75,000. There 
 was also $10,000 in another company on ma- 
 chinery in the erecting shop of the foundryt 
 and further insurances, $50,000 on machinery 
 made and being made, intended for, and to be 
 placed in, a certain steamer, in various build- 
 ings upon the lot known as the Southworth 
 Foundry. Held, the stipulation did not limit 
 insurers' liability to the excess of loss not cov- 
 ered by the specific insurances. Hence in- 
 surers were bound to contribute ratably on 
 the property insured by tlie specific policies. 
 Merrickv.Qenrmania Fire Ins. Co., 54 Penn St, 
 277. 
 
 FOR ACCOUNT OF WHOM IT MAY 
 CONCERN. 
 
 I. Whose nrrKRHSTS shall be racLiTDED. 
 
 II. NOT BE INCLUDED. 
 
 I. "Whose inteeikts shaul be in- 
 cluded. 
 
 1. The policy was effected by L. & C. for 
 Leonard, "or whom the same may concern." 
 Held, it covered the interest of Leonard or of 
 any other person who had an interest in the 
 subject insured, and who had given authority 
 to make the insurance. Seamans v. Loring, 
 1 Mason, 127. 
 
 2. Time policy on a steam vessel, each voy- 
 age to bear its own average, made to the Nor- 
 wich & Worcester Railroad Co., for account of 
 whom it might concern, loss payable to H., 
 who it seems had no interest in the vessel 
 when the policy was made, but acquired his 
 
561 
 
 FOR ACCOUNT OF WHOM IT MAT CONCERN. 
 
 562 
 
 Whose interests shall be included. 
 
 interest before the loss. Held, a valid policy. 
 Renshaw c. Mutual SafUy Ina. Co., 3 Blatch., 99. 
 
 3. A general policy, "as well for the parties 
 nnined as for all and every other person and 
 persons to whom the vessel did or might ap- 
 pertain." It contained no warranty of neu- 
 trality. Held, it included property of belliger- 
 ents as well as the property of Americans ; if 
 insurer intended to take the risk of neutral 
 property only, an express warranty to that 
 effect should have been inserted. Hodgson v. 
 Marine Tm. Go., 5 Cran., 100. 
 
 4. When the policy reads, " Every other per- 
 son to whom the property doth, may, or shall 
 appertain, in whole or in part," it cannot be 
 confined to the person named, or to the amount 
 of his interest in joint property. latcrenee v. 
 5(*or, 2 Caines, *203. 
 
 5. " On account of whom it may concern, for 
 outward shipments and homewards, to be for 
 account of themselves, and to be consigned to 
 them for sale under invoice and bill of lading, 
 from a port covered by the policy." Plaint- 
 iff's correspondents made shipments of coffee 
 from the pan covered by the policy for sale 
 by them as factors, for account of the owner ; 
 and application was made to defendants to 
 indorse the risk, but it was refused. The 
 vessel was never heard of after she sailed. 
 Held, the policy should be read, on account 
 of whom it may concern for outward ship- 
 ments, and homeward shipments, consigned 
 to them by invoice and bill of lading, hence it 
 covered the shipment in question. Rolker v. 
 Great Western Int. Co., 43 N. T. (3 Keyes), 17; 
 s. c., 4 Abb. Dec., 76 ; 8 Bos., 233 ; 3 Sweeney, 
 275. 
 
 6. Policy to C. for the benefit of whom it 
 might concern. She was owned by fotir per- 
 sons, one of whom executed a sealed instru- 
 ment revoking the authority of 0. to claim in- 
 demnity on account of his interest. Held, 
 that did not prevent C. from recovering for 
 the interests of the other persons; and he 
 might recover for their interests averring that 
 the policy was made for one of the owners, 
 and that he was interested to the whole 
 amount insured. Copeland v. Mercantile Int. 
 Go., 6 Pick., 198. 
 
 7. When the person insured seeks to recover 
 for an interest which he alleges is covered by 
 the policy, he must show a previous direction 
 to insure or a ratification of his act, and ex- 
 trinsic evidence is admissible to show the in- 
 
 tention. Foster v. United States Int. Co., H 
 Pick., 85. 
 
 8. The by-laws provided, " None but mem- 
 bers of the company shall be insured; " but a 
 policy was granted to M. & C. " On account 
 of whom it may concern." The plaintiffs 
 were the owners of the vessel and her freight. 
 Held, the plaintiffs could recover in their 
 own names upon the contract (citing 2 Phil- 
 lips on Ins., 1958). Somes v. Equitable Safety 
 Ins. Co., 13 Gray., 531. 
 
 9. Policy to "P. E. Kingman and others of 
 Boston. In case of loss, payable to the Bhaw- 
 mut Sugar Refining Co." Kingman assigned 
 his interest in the policy to which insurers 
 assented. Held, the plaintiffs had the right to 
 prove, if they could, that they were one of the 
 contracting parties and had a beneficial inter- 
 est in the contract. SAaiemut Sugar Co. v. 
 Hampden Mut. Int. Co., 13 Gray, 540. 
 
 10. She was owned by J. C. Rogers who 
 was master; and the policy was made to S. 
 & B. " for account of whom it concerns," on 
 schooner Arbutus from Portland to Cardenas, 
 and at and from thence back to a port of dis- 
 charge in tlie United States, loss piiyable to S. 
 & B. The above is to cover their claim for 
 supplies furnished the vessel." Held, it was 
 not limited to the claim which S. & B. had 
 against the vessel for supplies furnished. 
 Stephenson v. Piseataqua Fire and Marine Ins. 
 Co., 54 lie., 55. 
 
 11. The plaintiffs declared upon a contract 
 to C, M. & B., in the name of " Sanders and 
 others." The contract offered in evidence 
 was made to " Sanders and otliers." Held, a 
 question of fact for the jury to determine 
 from all the evidence, whether the plaintiffs 
 were the- persons intended to be insured under 
 the name and style mentioned in tlie policy. 
 Sanders o. Hillsborough Ins. Co., 44 N. H., 338. 
 
 12. A. agreed to load her witli lumber, if 
 he could get insurance. F., the master, and 
 part owner, employed an agent to obtain it, 
 without express authority from A., nor did he 
 know that it was made till after the policy was 
 issued in the name of I., forwhom itconcerns. 
 A. adopted it and loaded the vessel. Held, a 
 question for the jury to determine whether 
 when policy was obtained it was intended to 
 cover tlie cargo of A. ; that tlie court erred in 
 withdrawing that question from jury. Augusta 
 Ina. and Banking Go. v. Abbott, 12 Md., 348. 
 
 13. To " Mrs. E. W. B., executrix " Held, 
 
 281 
 
563 
 
 FOR ACCOUNT OF V/HOM IT MAY CONCERN. 
 
 564 
 
 Whose interests shall not be included. 
 
 the addition " executrix " was equivalent to 
 the phrase, " for the benefit of the parties eu- 
 tilled to the estate of which insured is execu- 
 trix." aiohe Ins. Go. v. Boyle, 21 Ohio SL, 119 ; 
 affirming s. c, 1 Gin. S. C, 444. 
 
 14. Policy issued to M. & Co. Insurers 
 were afterwards told that the owners of the 
 premises were not doing business under that 
 name, and thereupon insurers indorsed : "Loss, 
 if any, payable to C. E. Mattliews and James 
 Marshal. Held, they could maintain an ac- 
 tion in their own name, for the benefit of all 
 the owners of the property. Matthews v. Queen 
 Gity Ins. Co., 3 Cin. S. C, 109. 
 
 15. The application stated that insurance 
 was required in the name of A., for account of 
 whom it may concern. Held, notice to insur- 
 ers that interests other than that of A. were in- 
 tended to be covered; if insurers wished to 
 know whose interests, they were bouud to in- 
 quire, and in such a case whether insurance 
 was intended for A.'s benefit as vendor, mort- 
 gagee or privileged creditor, or for the benefit 
 of A.'s debtor, the policy was sufficient. Bell 
 o. Western Marine and Fire Ins. Go., 5 Rob. 
 (La.), 423 ; Same v. Fireman's Ins. Go., id., 446. 
 
 16. Open policy to J. L. "On cotton for 
 account of whom it might concern." Cotton 
 was consigned to J. L. by mistake, who re- 
 ceived a bill of lading of it and was afterwards 
 directed by the owner to turn it over to R. B. 
 & Co., but before that was done the property 
 was lost. Held, the bill of lading was sufficient 
 evidence of the right of insured to receive the 
 cotton;- the letter requesting him to turn it 
 over to another house was not inconsistent 
 with the original consignment, and the policy 
 included the loss. Ballard v. Merchants Ins. 
 Co., 9 La. (0. S.), 358. 
 
 17. Policy to A., B. & Co., for account of 
 whom it may concern, on ship and freight. A., 
 B. & Co. had advanced their credit and cash 
 largely upon the expected earnings of the 
 vessel, and the owner assigned to them half 
 interest in the freight and all the cargo for 
 them to receive the proceeds, satisfy their ad- 
 vances, and pay over to him the balance, if 
 any. Held, whether the policy covered interests 
 of A., B. & Co., and the interests of the ship, 
 owner was a question of intention, to be ascer- 
 tained by the facts proven. Paradise v. Sun 
 MviuaX Ins. Go., 6 La. An., 696. 
 
 18. Insured were commission merchants, 
 receiving consignments from India, against 
 
 283 
 
 which they were in the habit of accepting 
 bills. They procured two policies, each for 
 £5,000 : " As well in their own names as for and 
 in the names of all and every person and per- 
 sons to whom the same doth, may or shall appcr> 
 tain, in part or in all, on cotton from Bombay 
 to London, by ship or ships." As insured re- 
 ceived advices of shipments, they indorsed 
 the value of the goods and names of the ves- 
 sels in the usual way upon the policies. A 
 shipment of 250 bales was made and drawn 
 against. The bill was negotiated through a 
 banker in India, with whom the shipping 
 documents were lodged as security, and was 
 subsequently accepted, "Against delivery of 
 shipping documents." The shipment was de- 
 clared upon the policies, and the plaintiffs 
 wrote the bank that they would hold the 
 amount insured at the bank's disposal, until 
 payment of the acceptance. She was lost at 
 sea June 11th. Insured paid their acceptance 
 November 24th, and received the bills of 
 lading. Held, plaintiffs had an equitable in- 
 terest in every part of the cotton, because of 
 their liability under their acceptance; that as 
 consignees they were entitled to insure the 
 whole of it in their own names, to its full 
 value, and were entitled to recover the whole 
 amoimt upon an averment of interest in them- 
 selves, holding the moneys so recovered and 
 not applied to their own lien, as trustees for 
 the benefit of the consignors. Fbgworth v. AU 
 liance Ma/rine Ins. Go., 8 L. R. C. P., 596 ; 43 
 L. J. C. P., 305; 29 L. T. (N. S.), 479. 
 
 II. Whose inteeests shajll not be 
 
 DfCLTJDED. 
 
 1. J. had funds in hand at Bergen, Norway, 
 which he desired to remit to L., at Boston. 
 The Fame and her cargo had been captured 
 and carried into Bergen, the cargo put into 
 government stores and the vessel stripped and 
 moored. J. purchased the cargo, reloaded it, 
 and she sailed about June 23, 1815, for Boston, 
 consigned to Loring & Curtis. The policy 
 was effected February 7, 1814, for " L. & C; 
 or whom it might concern." In the autumn 
 of 1814, tlie captor made a contract with J. to 
 sell the vessel to him. , Held, the policy in- 
 eluded nothing but the interest of J. The 
 captor could not take any of its benefits. At 
 the time the policy was made, neither J. nor 
 L. & C. had acquired any interest in the sub- 
 
565 
 
 FOR ACCOUNT OF WHOM IT MAY CONCERN. 
 
 566 
 
 Whose interests shall not be included. 
 
 ject insured ; a lack of interest at the time pol- 
 icy was made was not cured by an interest 
 acquired subsequently. Seamata v. Loring, 1 
 Mason, 127. 
 
 2. Policy to S. & T., "For account of whom 
 it might concern." Held, insurers agreed to 
 become liable to such pei-sons as S. & T. in- 
 tended and were authorized to insure, and 
 that entries in the books of S. & T., showing 
 the accounts of the parties interested, were 
 eviidence to prove that S. & T. were not the 
 parties insured. Forgayv. Atlantic Mut. Ins. 
 Co., 2 Eob. (N. T.), 79. 
 
 3. On the outfits of schooner P., on account 
 of whom it may concern, loss, if any, payable 
 to the insured. The insured supplied the ves- 
 sel with the outfits which were to be used on 
 the voyage. Held, it could not cover the in- 
 terests of the owner of the vessel ; that it cov- 
 ered the interests of the insured and notliing 
 beyond; as they had no legal insurable inter- 
 est in the subject, no recovery could be had. 
 Folsom V Merchants Ins. Co., 38 Me., 414. 
 
 4. A ship master, part owner, procured a 
 policy upon his interest " On account of whom 
 it may concern," loss, if any, payable to him- 
 self. Ship and all hands were lost on the 
 voyage. The plaintiff proved that the deceased 
 ship master said he would secure a loan, made 
 by the plaintifif to the deceased, by a policy on 
 the vessel; also that the deceased had said 
 that he had secured the plaintiff by procuring 
 a policy for his benefit. Held, inadmissible, 
 unless the plaintiff could show that when the 
 deceased effected the insurance, he acted as 
 the agent of the plaintiff in procuring it; the 
 declarations of the deceased were not suflS- 
 cient for that purpose. Sleeper v. Union Ins.- 
 Co., 61 Me., 267. 
 
 5. Upon a question whether insurance made 
 "For account of whom it may concern," was 
 intended to include property of particular per- 
 sons, evidence that it was generally known 
 tliat insured usually made insurance for the 
 benefit of all their customers is not sufBcient. 
 Steele v. Franklin Fire Ins.Go., 17 Penn. St. , 290. 
 
 6. " For whom it may concern " embraces 
 the interests of such person or persons as were 
 contemplated at the time the policy was made, 
 and not any and every person who might 
 chance to have an interest in the thing in- 
 sured; and where the policy does not contain 
 the words " for whom it may concern," or 
 words of similar import, none but the person 
 
 named in it can claim to be indemnified by it. 
 Newson v. Douglass, 7 H. & J., 417. 
 
 7. A. purchased a steamboat at sherifi^s 
 sale, used her as his own property for several 
 years, on his own account, and insured her 
 freight in his own name " for account of whom 
 it might concern." Held, the policy was lim- 
 ited to those wlio had an insurable interest in 
 the subject insured, and to the interests of 
 those who were in fact intended to be insured, 
 and tliese were those who had previously di- 
 rected or authorized, or subsequently adopted 
 in due season the insurance so made. Frier- 
 son v. Brenham, 5 La. An., 540. 
 
 8. Property shipped at New Orleans for 
 Liverpool was insured by owners in London, 
 about the time of sliipment; but owing to an 
 accident, it was rclauded and stored in New 
 Orleans, and tliere again insured by tlie cou- 
 signoi's, " on account of whom it may con- 
 cern." While so stored it was destroyed by 
 fire. The London insurers paid the claim, and 
 brought suit against the second insurers. 
 Held, the persons who aided in obtaining this 
 policy had no authority to act for the plaint- 
 iffs, nor were their acts sanctioned before the 
 loss; therefore, so far as plaintiffs were con- 
 cerned, the conti-act was null and void. Alli- 
 ance Marine Ass. Co. v. Louisiana State Ins. Co., 
 8 La. (O. S.), 1. 
 
 9. Policy in the name of D. L. S., " for ac- 
 count of whom it may concern, to cover all 
 shipments made to the address of insured^ 
 from the time of shipment, risks to be reported 
 as soon as known." Held, before insured can 
 recover, it must appear that the goods were 
 shipped to his address, or if addressed to 
 another person, that they were reported. 
 Shearer v. Louisiana Ins. Co., 14 La. An., 809. 
 
 1 0. " A." had a policy for himself, upon any 
 kind of goods and merchandise as interest 
 might appear. He was instructed to effect a 
 policy for £5,000 against jettison only, subject 
 to subsequent declaration ; and, being unable to 
 do so, he procured the risk to be indorsed upon 
 his policy, " On deck, against risk of jettison 
 only." The person for whose benefit the in- 
 surance was effected was the owner of a line 
 of steamboats, and according to the custom of 
 the trade, was liable to the owners for goods 
 shipped upon deck. They were jettisoned. 
 Held, the contract was not made by the plaiu^ 
 iff, nor did it purport to be made on his behalf, 
 for it was made by "A." on his own balialf; 
 
567 
 
 FOREIGN ADJUSTMENT — FRAUD. 
 
 668 
 
 Wtat is evidence of. 
 
 that no person can take the benefits of a 
 policy of insurance but those who were con- 
 templated at the time the policy was made ; 
 that " A." could not appropriate a part of his 
 own contract of insurance to the benefit of the 
 plaintiff, hence a plea denying that the policy 
 was made for the use and benefit or for ac- 
 count of the plaintiff was sustained, and the 
 defendant entitled to judgment. Wation n. 
 Swan, 11 C. B. (N. S.), 756; a. c, 31 L. J. C. 
 P., 210. 
 
 FOREIGN AD.TUSTMENT. 
 
 (See GsiTBBAi. Atebaox.) 
 
 FOREIGN JUDGMENT. 
 
 Action on a foreign judgment. Defendants 
 pleaded it was founded upon a policy of in- 
 surance which provided that in case of loss, 
 the same should be paid within sixty days 
 after proof and adjustment of the claim, and 
 averred that no proof or adjustment was ever 
 made. Replication ; defendant refused to pay 
 the claim, not for the want of such proof and 
 adjustment, but for other and different reasons 
 which the law, of the place where the judg 
 ment was obtained, regarded as a waiver of 
 proof of said loss and adjustment Held, a 
 bad replication, for the same defense was ad- 
 missible against the judgment record that 
 would have been against the policy, had it 
 been sued in Canada. WaydeU v. Provineiat 
 Ins. Go., 21 U. C. Q. B., 612. 
 
 FOREIGN SENTENCE. 
 
 (See SSHTEHCE OI- COHDBMHATIOIf.) 
 
 '284 
 
 FORFEITURE OF POLICY. 
 
 (See E8T0FPEL.) 
 
 FRAUD. 
 
 (See False SwBABrao.) 
 
 What is evidence of. 
 
 1. In an action for the loss, insurers have a 
 right to iwove gross misconduct of insured, on 
 the ground that crasta negligentia is proof of 
 fraud or equivalent to fraudulent purpose or 
 design, though such negligence consists. in 
 doing nothing; for the doing of nothing when 
 the slightest care would prevent great injury, 
 manifests a willingness differing little in char- 
 acter from fraudulent and criminal purpose 
 to commit the injury. Chandler v. Worcester 
 Mutual Fire Ins. Co., 3 Gush., 328. 
 
 2. The oflBcers of an insurance company are 
 not bound to know conclusively whether the 
 company is insolvent; yet if they neglect to 
 use proper care and diligence to ascertain the 
 condition of the company, and hold it out as 
 solvent, but by the use of proper care and dil- 
 igence might know it was insolvent, there is 
 good reason for holding them guilty of fraud. 
 Brown v. Donnell, 49 Maine, 421. 
 
 3. Stipulated : " The application shall be a 
 part of the policy, and a warranty by the in- 
 sured." Also, " any omission to make known 
 any fact material to the risk, or an over valu- 
 ation or misrepresentation, either in the wi-it- 
 ten application or otherwise, shall make the 
 policy void." Insured stated that his title was 
 an article of agreement, and he was asked 
 whether the property was incumbered, to 
 which he answered : " By mortgage, $4,000." 
 He was asked to state the whole value of the 
 property, including buildings. He answered: 
 " $8,000 or more." Held, the question of over 
 valuation was not one to be submitted to the 
 jury, for the statement of value was to be 
 treated as a warranty, and any substantial over 
 valuation was a breach of it. American Ins. 
 Co. 0. Gilbert, 27 Mich., 429. 
 
 4. Action for falsely representing the affairs 
 of an insurance company, whereby tlie plaint- 
 iff was induced to effect an insurance in it. 
 The declaration set forth several rules and 
 regulations of the company, and averred that 
 the defendant fraudulently represented that 
 these rules had been complied with, when 
 they knew the facts were otherwise. Plea: 
 " The rules and regulations had been com- 
 plied with sufficient for the maintenance of 
 
569 
 
 FREE FROM AVERAGE — FREIGHT. 
 
 570 
 
 What camiot be insured as freight. 
 
 the company, and such insurances as then had 
 been or thcreafiec might be eifected." Held, 
 bad. Pontifex v. Bignold, 3 M. & G. 63; 3 
 Scott (N. K.), 390. 
 
 5. TJie court left it for the jury to say, 
 ■whethex tlie valuations were excessive, and if 
 so, whether they were made with a fraudulent 
 intent ; and whether fraudulent or not, was it 
 material for the underwriter to know whether 
 the valuation was excessive. The jury an- 
 swered that the valuations were excessive, that 
 that there was not su£Scient evidence to show 
 that they were made witli fraudulent intent; 
 but whether fraudulent or not, it was material 
 for the underwriter to know Uiat they were ex- 
 cessive, and that the excessive valuation was 
 concealed. Held, the verdict of tlie jury, 
 which was for the defendant, should not be 
 disturbed. lonidea v. Pender. 9 L. R. Q. B., 
 531; 43 L.J. Q. B.,237; 23W.R,884; SOL. 
 T. (N. S.), 547. 
 
 6. The plaintiffs were assignees and held 
 tlie policy upon the life of the bankrupt as 
 part of his assets. They offered it for sale but 
 no purchaser could be found. The bankrupt 
 became suddenly ill, and tbe defendant and 
 his attorney procured tlie assignee to sell it to 
 the defendant for sixty guineas, without in- 
 forming the assignee of the bankrupt's ex- 
 treme illness. The policy was for the sum of 
 £999. Held, the defendent's conduct amount- 
 ed to a legal fraud, from which he could not 
 set up any title to the policy (citing Hill c. 
 Gray, 1 Starkie, 434; Turner v. Harvey, 1 
 Jack., leS). Jone» v. Keene, 2 M. & Bob., 348. 
 
 FREE FROM AVERAGE. 
 
 (SeeWAEBASTIS VbXK JTtOK AviBAes.) 
 
 FREE FROM CAPTURE. 
 
 (See Caftubx and Ssizubz.) 
 
 FREE FROM SEIZURE IN PORT. 
 
 (See Ix POBI.) 
 
 FROM. 
 
 (See At aitd Fboh.) 
 
 I. 
 
 II. 
 III. 
 
 IV. 
 
 V. 
 
 VI. 
 
 VII. 
 
 VIII. 
 
 IX. 
 
 X. 
 
 XI. 
 
 FREIGHT. 
 
 (See CoHSTBUonoH.) 
 
 What cannot be insubed as fbkiqht. 
 When pouct does not attach. 
 
 freight pko kata itinekis is 
 
 DUE. 
 FREIGHT PRO RATA ITENIBIS IS 
 NOT DUB. 
 
 What is not a loss of. 
 
 A TOTAL loss OF. 
 PARTIAL loss OP. 
 
 When insurers of ship shall hate 
 
 freight earned. 
 When insurers of ship shall not 
 
 have freight earned. 
 Abandonment. 
 
 ME.4SURE OF DAIfAGE. 
 
 I. What cannot be insured as 
 
 FKEIGHT. 
 
 1 . Ship was sold and registered in the name 
 of the vendee ; but he agreed that the vendor 
 should have the benefit of the freight for a 
 voyage previously contracted; the vendee in- 
 sured ship, and the vendor insured her freight 
 for the same voyage. Held, the vendor had 
 not the right to insure it as freight, without 
 disclosing the nature of his interest. Raey v. 
 BeUifiM, 7 Johns., 522. 
 
 2. On freight earned or not earned, $15;000, 
 valued at $25,000, from San Francisco to Kew 
 York. She was wrecked on the New Jersey 
 coast Insured abandoned to insurers. The 
 crew saved rigging sufficient in value to pay 
 their wages, also a part of the cargo the freight 
 on which was sufficient to pay their wages. 
 Held, insurers were liable for all expenses 
 properly chargeable against it after it was 
 abandoned; but wages earned prior to tlie 
 abandonment were not charges against freight. 
 Daniels v. Atlantic Mvt. Ins. Co., 24 N. Y., 
 447; 8. c, 8 Bos., 266. 
 
 3. Policy upon freight Insured was as- 
 signee of a certain charter party; the amount 
 to be paid by the charterers was not to become 
 
571 
 
 FREIGHT. 
 
 672 
 
 When the policy does not attaych — When freight pro rata intineris is due. 
 
 due until her safe arrival. Held, insured had 
 no interest in freight, as such ; that he could 
 not insure it eo nomine, but that an actual ad- 
 vance on account would be covered. Robhins 
 V. New York Ins. Co., 1 Hull (N. T.), 32.5. 
 
 4. " On freight, earned or not earned, valued 
 at $15,000, policy to be proof of interest, and 
 recoverable only upon total loss." The in- 
 sured were charterers. She took a cargo from 
 Whampoa to Bombay, the freight of which 
 amounted to $3,900. She took a return cargo 
 for Whampoa, on which the freight was $1,800. 
 The charterers were to pay about $3,100 a 
 month for her use. Held, the plaintiffs were 
 not entitled to recover, for the charterer can- 
 not insure freight eo nomine. Hutk v. JVeai 
 Fork Mut. Ins. Co., 8 Bos., 538; Mellen e. 
 National Ins. Co., 1 Hall (N, Y.), 453. 
 
 5. " $1,500 on prepaid freight, for account 
 of whom it may concern, valued at $1,500." 
 P. shipped the cargo, on which he paid $3,700 
 freight. Cost of cargo and freight amounted 
 to $3,800. He sold it to the plaintiff, freight 
 prepaid, for $4,350, and assigned the bill of 
 lading. Neither P. nor his assignee had any 
 interest in the vessel. She made a port of dis- 
 tress, was surveyed, condemned, and sold un- 
 der circumstances that would have authorized 
 insured on cargo to recover for a total loss of 
 it. An abandounient was offered and refused. 
 Held, insured was not intefested in the earn- 
 ings of the vessel, for they were not pledged 
 to him as security for money advanced, nor 
 had he any lien upon them for reimbursement 
 in case the contract of affreightment should 
 not be fulfilled ; the money advanced for the 
 freight of the cargo which belonged to him 
 was not an absolute payment of freight, for 
 it appeared by the bill of lading, notwith- 
 standing the prepayment, freight would not 
 be earned unless the cargo should be carried 
 and delivered at the port of destination ; there- 
 fore, if for any cause, not imputable to insured, 
 the carrier failed to deliver the cargo accord- 
 ing to the terms of the bill of lading, insured 
 might recover back the sum advanced (citing 
 Griggs V. Austin, 3 Pick., 30; Brown e. Harris, 
 3 Gray, 59). That the money advanced by in- 
 sured to the carrier was in the nature of a 
 conditional loan, and gave him no insurable 
 interest in freight to which the policy would 
 attach. Mintwm «. Wa/rren Ins. Co., 2 Allen, 
 
 m. 
 
 6. Insurers of freight are not liable for sea- 
 
 men's wages and provisions during an em- 
 bargo. Insurance Go. of North America v. 
 Jones, 3 Binn., 547. 
 
 7. The memorandum for charter stipulated: 
 " One-half the freight,to be paid at the unload- 
 ing and right delivery of the cargo, and the 
 balance by bill at four months on London;" 
 also,- " The captain to be supplied with cash 
 for the ship's use." The master drew a hill 
 for £319, which was paid, and she was lost on 
 her homeward voyage. Held, the freighters 
 had no insurable interest in freight, and that 
 the money advanced was not a part payment 
 of the freight. Manfidd v. Maitland, 4 B. & 
 A., 583. 
 
 II. When the policy does not attach. 
 
 On ship and freight, at and from Jamaica to 
 Bristol. The cargo was ready to go on board, 
 but a sudden tempest arose and she was lost. 
 Held, insured could not recover for loss of 
 freight, because none of the goods were actu- 
 ally on board. Tonge v. Watts, 3 Strange, 
 1251. 
 
 III. When freight peo eata itinebis 
 
 IS DUE. 
 
 1. Twenty thousand bushels of wheat were 
 shipped at Chicago, to be delivered by the pro- 
 peller at Buffalo, in good order and condition, 
 the dangers of navigation excepted. She 
 grounded on the St. Clair Flats November 
 7th, and in an effort to get off, burst her boiler, 
 sunk, and was compelled to suspend the voy- 
 age to make necessiiry repairs. The whole 
 cargo was damaged in consequence, except 
 1,100 bushels. Insurers accepted an abandon- 
 ment, and paid a total loss; they took posses, 
 siou of it and sold the damaged portion there 
 for $1,300, and delivery began the same day; 
 but hearing that the master intended to claim 
 freight, insurer's agent was directed to have 
 nothing further to do with it, unless the mas- 
 ter would relinquish his claim. The agent 
 and the master agreed, as the sale had been 
 completed, the freight should be left for after 
 consideration. 19,100 bushels were delivered 
 to the purchaser on the flats in a damaged 
 condition, and the residue, 1,100 bushels, were 
 carried by the propeller to Buffalo. The mas- 
 ter claimed freight pro rata for that delivered 
 on the flats, and freight in full for that deliv- 
 
573 
 
 FREIGHT. 
 
 674 
 
 When freight j»io rata itineris is not due. 
 
 cred in Buffalo. Held, insurers were subro- 
 gated to all the rights of tlie shipper, who 
 might have left the responsibilities of refitting 
 the vessel or procuring another to forward the 
 cargo to the port of destination, upon the mas- 
 ter ; .but they permitted no choice, -whether to 
 refit or to send the cargo on in another vessel ; 
 and it was too late for the insurance company 
 to countermand the order of sale, for the wheat 
 had been turned over to the insurer's agent, 
 ■who had sold it, which amounted to a rescis- 
 sion of the contract expressed in the bill of 
 lading that the acceptance was voluntary, and 
 therefore the master was entitled to freight 
 pro rata itineris on it, and full freight on that 
 carried to the port of destination. Propeller 
 Mohawk, 8 Wall., 153. 
 
 2. Insured was master, consignee and joint 
 owner of cargo. He sold cargo at port of 
 necessity, -where the voyage was broken up. 
 Meld, a reception by cargo owner at port of 
 necessity, and an earning of freight pro rata 
 itineris, and so establishes only a partial loss 
 of freight Williams r. Smith. 2 Caines, 13. 
 
 3. When goods are shipped and voyage 
 • commenced, the right of ship owner to full 
 'freight has attached ; and, in case of accidentor 
 
 detention, either by putting back or stopping 
 at an intermediate port, more or less distant 
 from the port of destination, the shipper has 
 no right to the goods without paying full 
 freight, if the ship can be refitted or another 
 procured within a reasonable time to transmit 
 the cargo. And if the shipper consents to re- 
 ceive the goods, the law raises a promise to pay 
 freight pro rata itineris, provided there has 
 been beneficial service rendered by the ship 
 to the cargo ; but there is none if (he cost of 
 transporting the goods from the place of de- 
 tention to the point of destination is equal to 
 the freight stipulated to be paid. M'Qaw <o. 
 Ocean Tns. Co., 23 Pick., 405. 
 
 4. " On freight from Callao to the Chincha 
 Islands, thence to Callao for a clearance, and 
 tlience to a port in Europe or the United 
 States." She sprang a leak and returned to 
 Callao, was unladen, and it was found neces- 
 sary to repair her at a cost exceeding her 
 value. For the want of money to make the 
 repairs she was sold. The shippers took the 
 cargo from the master and forwarded it by 
 other vessels. Held, where the ship is wrecked 
 or disabled, and the shipper himself, or by his 
 agent, prefers to take bis goods at an inter- 
 
 mediate port rather than to have them for- 
 warded to the port of destination, and tlieship 
 owner himself, or by his agents, choose to 
 deliver tliem to the shipper rather than to re- 
 ship them to the port of destination, it is a 
 case of freight earned pro rata itineris. Met- 
 chants MiU. Ins. Go. v. Butler, 20 Md., 41. 
 
 IV. When freight pro rata itin- 
 eris IS NOT DUE. 
 
 1. Plaintiffs were owners of ship and cargo, 
 and effected an insurance on the cargo from 
 Bordeaux to Kew York with defendants, 
 $11,000 and $10,000 by other underwriters. 
 $1,986 was uninsured. She was captured, car- 
 ried into Halifax, condemned and sold, and 
 plaintiffs abandoned to the underwriters, and 
 received payment as for a total loss. The sen- 
 tence of condemnation was reversed, and the 
 proceeds of the cargo paid over to insurers 
 thereof, in proportion to the sums by them re- 
 spectively underwritten. This suit was insti- 
 tuted to recover freight pro rata iteneris. Held, 
 as between insured and insurer of cargo, the 
 latter is in no case responsible for the pay- 
 ment of freight, whether there l>e or not an 
 abandonment of cargo; because freight is a 
 charge upon the cargo against which the in- 
 surer of cargo does not undertake to indemnify 
 the owner (citing Bailey v. Modigliani, Mat- 
 shall, 728). Held, oho, freight was not due 
 upon this cargo at Halifax, because there was 
 no voluntary acceptance of it there; that a 
 compulsory receipt of the proceeds from the 
 hands of the admiralty, after capture, con- 
 demnation, and ultimate restoration upon ap- 
 peal, was not a voluntary acceptance of cargo. 
 Caze V. Baltimore Ins. Co., 7 Cranch, 858. 
 
 2S. The insurers of cargo, after payinga total 
 loss, received the proceeds, it having been for- 
 warded from the point of distress for the best 
 interests of all concerned, and without preju- 
 dice to either party. Held, there must be a 
 voluntary and unconditional acceptance by 
 the cargo owner, at the intermediate port, to 
 form the basis of a new contract to pay freight 
 pro rata, and that this was a mere acceptance * 
 of the salvage, or the remains of the cargo. 
 Marine Ins. Co. v. United States Ins. Co.', 9 
 Johns., 186. 
 
 3. The cargo owner procured insurance. Tlie 
 goods were damaged and surrendered to in- 
 surers at a point short of the port of destina- 
 
 287 
 
575 
 
 FREIGHT. 
 
 6T6 
 
 What is not a loss of. 
 
 tion, and insurers paid a total loss. Held, the 
 fact that the cargo was insured, and that in- 
 surers had paid a total loss, gave the carriers 
 no right to recover freight. McKibbin v. Pet^, 
 39 N. Y., 262. 
 
 4. She was wrecked within thirty-five miles 
 of her port of destination. A part of her 
 cargo washed ashore and pi led on the beach. 
 All hands were lost. The owner and con- 
 signee of the cargo abandoned it to insurers, 
 who could not find any owner or part owner 
 of the vessel, nor any one in their behalf. 
 They contracted with a third person to deliver 
 the cargo saved at its port of destination for a 
 specific compensation, and it was forwarded 
 and sold. Held, the ship owner was not enti- 
 tled to freight pro rata, because the owner of 
 the goods did not elect to receive them at the 
 intermediate place; that the act of the insurer, 
 who had accepted tlie abandonment and paid 
 a total loss, could not be regarded as a volun- 
 tary acceptance, hence the insurer was enti- 
 tled to receive the whole amount of proceeds 
 less the expense of saving. Atlantic Mut. 
 In». Co. D. BirA. 3 Bos., 195. 
 
 5. On ship and cargo to one person — Phil- 
 adelphia to Barbados. The ship and cargo 
 were abandoned at a port of necessity. Held, 
 insured on ship had no right as against the 
 insurers of cargo to freight pro rata itineris. 
 Armroyd v. Union Ins. Co., 3 Binn., 437. 
 
 Y. What is not a loss of. 
 
 1. On freight, valued at |3,500, from Phila- 
 delphia to Surinam. She sailed August 7th 
 and arrived September 17th. The commander 
 of the British fort informed the master, that 
 the colony had been in possession of the 
 British forces about twenty days. The con- 
 signee was a passenger on the vessel. The 
 cargo was to be delivered to him on the pay. 
 ment of $25,310, in pursuance of a contract 
 between him and insured. The cargo was 
 tendered at the town of Paramanto, to be 
 paid for as soon as possible after the delivery. 
 The governor gave permission for her to pro- 
 ceed to the town, where she arrived on the 
 19th but the collector would not allow any- 
 thing to be landed, except provisions — about 
 one-eighth of the cargo. The master repeatedly 
 offered to deliver the cargo, but was refused 
 permission to land it. She returned with it 
 to Philadelphia, where an abandonment was 
 288 
 
 offered and refused. Held, the obtaining per- 
 mission to land tlie cargo should be con- 
 sidered as an obligation resting on the con- 
 signee; that the freight was therefore earned 
 and the insurer released. Morgan v. Iniurance 
 Co. (^ North America, 4 Dall., 455. 
 
 2. Tlie ship was wrecked and a large part 
 of the cargo saved. Shii) and cargo were the 
 property of the ship owner. Hdd, in point of 
 law it makes no difference whether the cargo 
 is or not owned by the ship owner; that in- 
 surers of cargo do not, in any event, whether 
 of abandonment with salvage or of partial 
 loss, undertake to indemnify the owner of 
 cargo for freiglit paid by him in order to get 
 possession of his cargo. Columbian Int. Co. 
 ■B. Gatlett, 12 Wheat., 383. 
 
 3. On freight. She sailed on the voyage 
 insured for the Isle of France, which was not 
 prohibited, nor was the place blockaded in 
 fact. She was warned off by a British ship 
 of war, and her papers so indorsed. The 
 master was informed by an officer of the ship 
 of war, that the Isle of France was blockaded, 
 and his vessel would be a good prize if she 
 proceeded thither. She then returned to 
 Philadelphia where she was prevented by an 
 embargo from prosecuting the voyage. Held, 
 the insurers were discharged. King s. Delaware 
 Ins. Co., 6 Cran., 71 ; affirming s. c, 3 Wash. 
 C. C, 300. 
 
 4. In going out, she grounded and became 
 leaky; the cargo was damaged and unladen. 
 She was repaired in a few days at an expense 
 of $150. Tlie flour was sold by insurers with 
 the ship owner's consent for about half its cost, 
 but more than double its freight. Held, the 
 insurers of freight were not liable, for the ship 
 owner had the right to insist upon carrying 
 the cargo or to be paid full freight. Oriswold 
 V. New York Ins. Co., 1 Johns., 205 ; 8. c. 3 id., 
 321. 
 
 5. On the freight of goods. Insured was 
 not the owner of the vessel, but had hired her 
 for the voyage and agreed to pay a certain 
 sum for freight on the delivery of the cargo. 
 He was the owner of the cargo. Held, the 
 charter party was a mere covenant to cany. 
 The cargo was not delivered ; no freight be- 
 came due from the insured to the ship owner. 
 He sustained no loss and his insurer was not 
 liable. Cheriot v. Barker, 2 Johns., 347. 
 
 6. Two policies, one on cargo, the other on 
 freight Insured owned both ship and cargo. 
 
577 
 
 FREIGHT. 
 
 578 
 
 What is not a loss of. 
 
 Policy on cargo was open, that on freight val- 
 ued. The cargo was rye flour and Indian 
 corn. She encountered very heavy weather, 
 in which it became necessary to cut away her 
 mainmast and fore-topmast; she heeled so 
 badly that it became necessary to throw over- 
 board a large portion of the cargo, and with 
 JQiy masts she reached Kewport, where all the 
 cargo was discharged, most of it greatly in- 
 jured, and some of it putrid. It was not in a 
 condition to bear transportation, required 
 great care to pi-eserve it, was sold and the 
 vessel repaired ; but she did not prosecute the 
 voyage. Sdd, the insurers on freight were 
 not liable, because the ship was seasonably 
 ready to prosecute the voyage and the freight 
 might have been earned. SaUut c. Ocean I»s. 
 Co., 14 Johns., 138. 
 
 7. On freight valued at $2,300, from New 
 York to Havana. She sailed January 20th ; 
 came to anchor in a small bay near Sandy 
 Hook and was driven ashore in a gale. Cargo 
 was taken out by the insured and brought 
 back to New York ; she was also brought 
 back in Qiree or four days; about five weeks 
 after she first sailed, she was repaired, but 
 her hull and spars were not in as good repair 
 as when she first put to sea. Soon after she 
 proceeded on a different voyage. Held, there 
 was not such an impediment as warranted her 
 in abandoning the voyage; that as between 
 the owner of the ship and the owner of the 
 cargo, no loss was total Where the cargo re- 
 mained or any part was saved and taken by 
 the owner for Ma use; that where the ship 
 owner delivers up the cargo to the shipper 
 while he has a right to retain it and earn 
 freight, he cannot call upon the insurer of 
 freight for the loss. Herbert «. HcMet, 3 
 Johns. Ca., 98. 
 
 8. Where the ship owner has made a valid 
 contract of affreightment and the ship is in 
 the proper place and ready to receive the car- 
 go, the ship owner has then an insurable in- 
 terest in freight; but if he insures it and the 
 policy provides, "beginning the adventure 
 upon the said freight ttom and immediately 
 after the loading thereof upon the said ves- 
 sel," the insurer is not liable for a loss of 
 freight until the goods are on board. Gordon 
 V. Ameriean Ins. Co.. 4 Denio, 360. 
 
 9. On freight, stipulated: "Not lobelia. 
 We for any partial loss whatever." She re- 
 turned to ^'ew York in distress, having jetti- 
 
 19 
 
 soned a part of her cargo, and another part 
 could not be reshipped in consequence of 
 damage. She was repaired and took another 
 cargo, the undamaged cargo having been sent 
 forwai-d in another vessel to the point of des- 
 tination. Hdd, insurer on freight was not lia- 
 ble for any loss of ft^ight. Ogden o. Chnerai 
 Mut. Ins. Oo.y 3 Duer, 204. 
 
 10. On freight. She was abandoned, but 
 the cargo was carried to the port of destina- 
 tion. Held, no loss of freight even though the 
 ship was rightfully abandoned (citing Scottish 
 Marine Ins. Co. «. Turner; 4 H. L. Cas., 311 ; 1 
 Macq. H. L. Cas., 834). Fiedler o. Ifew York 
 Ins. Co., 6 Duer, 282. 
 
 11. On freight, Cleveland to Ogdensburg. 
 She encoimtered a gale and was stranded on 
 the rocks at the entrance to the Welland 
 canal, November 25th. The cargo consisted 
 of wheat and flour. 1,500 bushels of wheat 
 were lost overboard, 1,026 were wet and very 
 much swollen, 3,474 bushels uninjured. All 
 the flour was wet and damaged. Part of the 
 cargo was put into lighters, part remained on 
 the vessel, and all taken to Buffalo. The ves- 
 sel was badly injured and could not be made 
 ready to resume her voyage till December 
 15th, when canal and river were frozen. No 
 vessel could have reached the port of destina- 
 tion till the following spring, nor could any 
 vessel have been procured that season to take 
 the cargo from the place of disaster to the 
 point of destination ; nor could it have been 
 forwarded by railway except at double the 
 original freight Cargo owners abandoned, 
 and insurers of cargo paid a total loss and re- 
 ceived the property. Held, a surrender of the 
 cargo without payment of freight, discharged 
 insurers of freight, for they could not law- 
 fully take it from the carrier, because he had 
 a right to keep it a reasonable time to repair his 
 vessel and complete the delivery, under the 
 contract of f^eightment. Allen, v. Mercantile 
 Mut. Ins. Go., 44 N. Y., 437; reversing 8. c, 
 46 Barb., 642. 
 
 12. On "freight." Held, it does not in- 
 clude loss of freight by detention of ship 
 caused by sea perils. The insurer does not 
 contract that freight shall be earned within 
 any stated time. If freight has been earned, 
 the insurer is discharged. Mayo «. Maine 
 Fire and Marine Ins. Co., 4 Mass., 374. 
 
 13. Freight insured from Richmond to 
 Nice. She put into Kennebnnk to repair. 
 
579 
 
 FREIGHT. 
 
 580 
 
 What 18 not a loss of. 
 
 Two months would have been required for 
 unloading, repairing and reloading. Owner 
 of cargo, tobacco, demanded that it should 
 be sent forward in another vessel, as other- 
 wise the object, which was to get the to- 
 bacco to a French market at the autumnal 
 coneours, would be defeated. Freight from 
 Kiennebunk would have been as high or high- 
 er as from Richmond. Ship owner declined 
 to hire another vessel; offered to repair his 
 own and proceed on the voyage. Shipper 
 demanded the tobacco to be delivered to him 
 or sent forward immediately, otherwise he 
 would abandon it to ship owner and look to 
 him for damages. Shipper also stated that 
 freight, if any were due, should be settled. 
 Ship owner delivered the tobacco, and the 
 shipper forwarded it in a vessel of his own. 
 Insured, upon freight, abandoned it to in- 
 surer. Seld, the ship owner might have de- 
 tained the cargo until repairs were made, and 
 that the insurer of freight was discharged. 
 Clark i>. Mdssaehusetts Fire and Marine Ins. 
 Co., 2 Pick., 104. 
 
 14. If tJie master can repair and proceed 
 in a reasonable time, he may retain the cargo, 
 though it be wet and damaged, carry it to its 
 place of destination, and earn full freight. If 
 be relinquishes that right, the insurers on 
 freight are not liable. WQaw v. Ocean Ins. 
 Co., 23 Pick., 405. 
 
 1 5. On freight from New York to Havre, 
 valued at $6,000. She sustained damage and 
 was obliged to put back and discharge the 
 cargo to make repairs. Owners of the cargo 
 declined to demand it, to cause it to be dried, 
 to require the ship owner to proceed, or to 
 give any directions on the subject. The mas- 
 ter sold the goods at auction and reflised to 
 pay over the proceeds unless freight was al- 
 lowed. Suit was brought and the ship own- 
 ers defended on the ground that freight was 
 due; but it was adjudged that none was due. 
 This action was brought to recover of insurers 
 of freight, for expenses incurred in defending 
 that action. It was conceded that the sale of 
 cargo in its damaged condition was for the 
 interest of the owners of vessel and cargo ; al- 
 so, that the ship obtained a higher rate of 
 freight on the new voyage than she would 
 have earned on the old, because freight had 
 risen. Held, the propriety of the sale of the 
 damaged cargo was a question solely between 
 the master and the cargo owner, with which 
 
 290 
 
 insurers of freight had no concern; if the 
 ship owners or the master, acting in their be- 
 half, sold the cargo while it remained in 
 specie, and might have gone to its deatina. 
 tion, they lost their freight not by any peril 
 insured against but by their voluntary prefer- 
 ence to abandon the voyage and employ the 
 vessel in another enterprise ; as there was no 
 plausible ground on which the plaintiffs, as 
 ship owners could contend that they had any ' 
 claim against the cargo owners by way of 
 lien, setoff, or otherwise, for the payment of 
 freight on the cargo sold at New York, insur- 
 ers of freight were not liable for any of the 
 expenses incurred in defending the suit 
 brought by the cargo owners. Lord v. Nep- 
 tune Int. Co., 10 Gray, 109. 
 
 16. On freight valued at $4,000 from Gib- 
 raltar to Bordeaux. She had on board 
 $20,000 in specie to purchase cargo, but could 
 procure none at Gibraltar. She was lost and 
 one keg of specie with her. Held, insurers 
 were not liable. Adanu v. PenneyUania Ins. 
 Co., 1 Rawle, 97. 
 
 1 7. On freight, stipulated : " The insured 
 shall not abandon in consequence ot the port of 
 destination being blockaded, but in such case, 
 shall have liberty to proceed to another port 
 not blockaded, and there end the voyage or 
 wait a reasonable time for the blockade of the 
 original port of destination to be raised." 
 She was prevented from landing her cargo by 
 a French vessel of war. She returned to New 
 Orleans about May 9th, where she remained 
 ten days, and then discharged cargo. Held, 
 she ought to have insisted on the payment of 
 her freight or have waited for the raising of 
 the blockade ; that a failure to do so released 
 the insurers. Marhs v. Louisiana State Ma- 
 rine and fire In*. Co., 3 Rob. (La.), 454. 
 
 1 8. " On the freight bill, from St. Louis to 
 New Orleans." She would have earned $1,790, 
 but struck a snag which caused her to leak 
 y&ff badly, and it became necessary to dis- 
 charge the cargo. She was taken back to St. 
 Louis and thoroughly repaired in two weeks. 
 Insurers consented that the policy should he 
 transferred to two other steamboats. There 
 was no consideration other than that paid for 
 the original insurance. They carried the cargo 
 to the point of destination. Held, an insur- 
 ance on the freight bill was an undertaking 
 that the vessel should earn freight; whether 
 the freight was lost or not. was to be deter- 
 
581 
 
 FREIGHT. 
 
 582 
 
 What is not a loss of. 
 
 luiaed by the facts of the case namely: tlie 
 time required to leflt the boat, the opportuni- 
 ties for transhipping, the kind of goods, 
 whether it was important for them to be car- 
 ried forward without delay, and these were so 
 ftilly proven that the court determined that 
 the master would not have had the right to 
 retain this cargo until he could refit and carry 
 it forward in his own boat; but the transfer 
 of the policy from the disabled boat to others 
 which completed the transportation, entirely 
 released insurers. Field t>. Gititens Ins. Co., 
 11 Mo., 50. 
 
 19. She was repaired at an expense largely 
 in excess of the value of ship and freight, and 
 tbe master gave a bottomry bond, charging 
 ship, freight and cargo for money to defray 
 expenses. She earned freight, which was paid 
 to the obligee named in the bond, and the ship 
 owner sued the insurers of freight for a total 
 loss of it. Seid, the payment of the freight 
 to the obligee named in tbe bond was, in law, 
 a payment to tbe ship owner; hence the in- 
 surer of freight was released. Benson e. Chap- 
 man, 3 H. L. Cas., 596; 5 C. B., .330; 8 C. B., 
 950; reversing s. &, 6 M. & G.. 793. 
 
 S!0. On freight She was greatly damaged. 
 Insurers of ship accepted an abandonment, 
 and paid a total loss on her; but she arrived 
 at the port of destination and earned freight 
 for the voyage, which was paid insurers of 
 ship. Held, the fact that the freight was paid 
 to the insurers of ship and not to her owners 
 made no difference, for the condition of the 
 policy that freight should be earned was 
 fulfilled, and therefore insurers of freight were 
 discharged. Seottuh Marine Ins. Co. o. Tur- 
 ner, 4 H. L. Cas., 311 ; 17 Jur., 631. 
 
 21. The ship was insured for £750, and her 
 freight for £1,500. She sustained damage in 
 the early part of the voyage, bat reached the 
 port of destination, having sustained ftirther 
 iigory on the last day out Insured on ship 
 abandoned. The caigo was delivered to tlie 
 consignees. The house of lords, in 4 H. L. 
 Cas., 159, adjudged that the freight earned be- 
 longed to insurers of ship, and this suit was 
 brought to recover from insurers of freight 
 the sum insured. Seld, no recovery could be 
 bad, for tbe cargo was delivered and the freight 
 paid (reversing 8. a, 13 C. C. S., 652, 989; 23 
 Scot Jur^ 294, 455). Scottish Marine Ins. Co. 
 «. Turner, 15 C. C. S., 33. 
 22. On freight She was iigured by perils 
 
 of the sea, and compelled to put in to a port of 
 necessity, where the whole of her cargo was 
 necessarily landed, and part could not be re- 
 shipped without danger of ignition unless it 
 were dried, and that would have detained her 
 six weeks, and have incurred an uxpense equal 
 to the freight. ' It was sold, and she proceeded 
 to port of destination with the balance. Sdd, 
 insurers of freight were not liable for the loss, 
 notwithstanding Uie master acted prudently. 
 Mordy «. Jonss, 4 B. & C, 893; 3 L. J. K. B., 
 250; 6D. &R.,479. 
 
 23. On specie and the returns thereof, in 
 any description of merchandise, with liberty 
 to declare and value thereafter, at and from 
 the river Plata to Canton and back. Insured 
 chartered her from Buenos Ayres to Canton 
 and back for $10,000, to pay in China what 
 erer might be necessary for port charges and 
 incidental expenses, not exceeding $2,000, the 
 balance thirty days after her arrival at Buenos 
 Ayres. These terms were not communicated 
 to insurer. Insured sent specie to an agent at 
 Canton who advanced the necessary port 
 charges and incidental expenses, and put in 
 goods for the return voyage on account of his 
 principal. Seid, the money advanced for ac- 
 count of the vessel at Canton could not be 
 treated as a part of the value of the merchan- 
 dise shipped there, because it was not, proper- 
 ly speaking, freight. Winter v. Haidiman, 2 
 B. & Ad.. 649; 9 L. J. K. B., 313. 
 
 24. " On passage money of emigrants sub- 
 ject to pay a loss pro rata, and to the clauses 
 and conditions of sees. 47 to 51 of Pass. Act 
 of 1852, compensation clause excepted, and 
 against these risks only." She was driven into 
 a port of distress where she necessarily re- 
 mained for six weeks to repair damages, and 
 while there, the passengers were maintained 
 by the insured at a cost exceeding tlie passage 
 money. She afterwards arrived at the port of 
 destination. Heid, insurers were not liable. 
 Willi* f>. Cooke, 5 El. & Bl., 641; s. c, 1 Jur. 
 (N. S.), 1164; 25 L. J. Q. B., 16. 
 
 25. " On freight from the Cape of €rood 
 Hope to Houdeklip Bay, there to load a cargu 
 of copper ore, and thence to Swansea" She 
 arrived at Hondeklip Bay. The whole Ciu-go 
 was ready ; she took a part of it, when a storm 
 came on and she was compelled to put to sea 
 with the loss of an anchor and damage to 
 windlass. She beat about the oflSng for some 
 time, and it was then deemed expedient to 
 
 291 
 
683 
 
 FREIGHT. 
 
 584 
 
 What is a total loss of. 
 
 Bail for St. Helena, where she failed to get an 
 additional anchor or the requisite repairs. A 
 portion of the outward cargo was still on 
 board. It was discharged at St. Helena, and 
 she sailed for Swansea. The repairs might 
 have been made at the Cape. The jury found 
 that the master acted throughout as a prudent 
 owner would have done. Held, if the repairs 
 could have been made at the Cape, one hun- 
 dred and eighty miles otf, and with them the 
 freight could have been earned, the proximate 
 cause of the loss was the course which the 
 master pursued; that the master's acts, though 
 prudent, could not cast the loss upon insurers 
 of freight. If he was not prevented by perils 
 of the sea from procuring the necessary re- 
 pairs, and earning of full freight, insurers 
 were not liable. PMlpott «. Swann, 11 C. B. 
 (N. S.), 270; s. c. 7 Jur. (N. S.), 1391; 30 L.J 
 0. P., 358; 5 L. T. (N. S.), 183. 
 
 26. Ship insured from Valparaiso to Eng- 
 land, valued at £13,000, and freight at £4,000. 
 She was compelled by stress of weather to 
 put back for repairs, where it was found 
 it would have cost to repair her more 
 than her entire earnings for the voj-age, but 
 less than her repaired value. The master sold 
 her. Sdd, if she could have been repaired so 
 as to earn freight, at an expense which a pru- 
 dent owner, uninsured, would have incurred, 
 the insurers must be discharged. Mos» v. 
 Smith, 9 C. B., 94 ; 19 L. J. (N. S.), C. P., 325 ; 14 
 Jur., 1003. 
 
 27. On freight. She was badly damaged, 
 and so much delayed that she could not take 
 in cargo prepared for her, and it was sent by 
 another vessel ; but she earned full freight by 
 carrying other goods. Held, there was no par- 
 tial loss of freight. Brocklebank 9. Sugrue, 
 1 Moo. & B., 103^ 1 B. & Ad., 81 ; 8 L. J. (K. 
 B.), 871. 
 
 28. On freight valued, from R. to U. K. 
 She was chartered out to R. to take a cargo 
 home. She arrived at R., was detained by 
 order of government for five weeks, and load- 
 ing prevented. The frost set in, which de- 
 tained her there until the spring. She then 
 procured a freight and returned home ; but the 
 expenses of detention exceeded the freight 
 earned. Held, the insurers were not liable. 
 Everth V. Smith, 2 Mau. & Sel., 278. 
 
 29. On freight on a cargo of coals from Rio 
 Janeiro to San Francisco. Damage by perils 
 of the sea compelled her to put into Monte- 
 
 393 
 
 video, where she was surveyed and found in- 
 capable of pursuing the voyage, and no vessel 
 could be procured to take the cargo. The 
 cost of warehousing would, in a few months, 
 have amounted to the value of the cargo. The 
 town was in a state of seige and revolution ; 
 therefore, it was unsafe to leave the cargo un- 
 warehoused. The master sold it, applied the 
 proceeds to the ship's purposes, and navigated 
 her home to Liverpool. Held, insurers of 
 freight were not liable for the loss of freight 
 on the cargo sold; that it was proper for the 
 court to direct the jury to determine whether 
 all the circumstances were such as to create 
 a constructive total loss of the vessel. The 
 jury found that they were not. Klingender 
 v. Home and Colonial Ins. Co., 15 L. T. (N. S.), 
 16. 
 
 yi. What is a total loss of. 
 
 1. On freight at and from Baltimore to Rio 
 Janeiro and hack to Havana or Matanzas. 
 The policy contained the usual memoran- 
 dum found in cargo policies, exempting in- 
 surers from claim for partial loss on articles 
 perishable in their own nature. About four 
 hundred tons of jerked beef were shipped at 
 Montevideo for Havana, freight payable at 
 the port of destination. A large part of it was 
 jettisoned on the voyage to lighten her oflf. 
 She put into Nassau with keel badly shattered, 
 rudder and forefoot broketk oflf, and eight feet 
 of water in the hold. The beef was so badly 
 damaged that the authorities at Nassau 
 ordered all of it, except about one hundred 
 and fifty tons, to be thrown Into the sea, which 
 was done ; and as to that which remained, it 
 was landed wet and heated, and the authorities 
 ordered the master to remove it with all possi- 
 ble speed. Her repairs would have exceeded 
 half her value, nor could they be made at 
 Nassau so as to make her competent to pro- 
 ceed with the cargo; nor could any other 
 vessel be procured to carry it forward. The 
 master sold it for $3,664.92, and the ship was 
 repaired temporarily and went home in bal- 
 last. Held, the exemption applied to freight; 
 and if the jerked beef was an article perisha- 
 ble in its own nature, the insurer of freight 
 was not liable, unless the sea damage to it at 
 the port of distress had destroyed its original 
 character as beef, or' that repairing the ship 
 or procuring another to carry it forward, 
 
585 
 
 FREIGHT. 
 
 586 
 
 What is a total loss of. 
 
 -would have necessarily caused sucli a retarda- 
 tioa of the voyage as would, ia all probability, 
 have caused a destruction of the beef before il 
 could have arrived at its destination, or that 
 when the ship would have been repaired, or 
 another procured, the condition of the beef 
 would have been such as to make it, hav- 
 ing proper regard for the health of the crew, 
 unsafe to reship and proceed with it on 
 the voyage. That in determining whether 
 another ship ought to have been procured to 
 carry it forward, regard must be had to the 
 freight which would have been paid therefor, 
 and unless one could have been procured at 
 an expense not exceeding the fleight to have 
 been earned by completing the voyage, the 
 insmer of freight would have no right to 
 require the master to procure one to carry 
 the cargo forward. That neither the inter- 
 ests of the cargo owner nor of the insurer 
 of the cargo were to be regarded in determin- 
 ing whether there was or not a total loss of 
 freight. Hugg o. Aagxuta Iniuraace and BanJc- 
 ing Co., 7 How., 595 ; s. c. Tan. Dec., 159. 
 
 8. $4,000 on freight of the barque Susan, 
 from Charleston to Kio Janeiro and back to 
 any port of discharge in the United States. 
 She arrived at Kio, discharged cargo, earned 
 freight and tOf)k a return cargo, but was com- 
 pelled to put back for repairs, where she was 
 condemned and sold as nnseaworthy. MdcL, 
 the policy was upon the freight of each voy- 
 age, and the insurers were not entitled to any 
 credit for the freight earned on the out voyage. 
 Ijisuranee Company c. Mordeeai, 23 How., 111. 
 
 3. On freight valued at |2,000. Philadel- 
 phia to Tampico,. thence to Laguna or Cam- 
 peachy, thence to Philadelphia or New York. 
 The charterer agreed to pay for her hire, 
 f 2,000 — on arrfval and delivery of cargo, $1,- 
 000 — on return home, $1,000. She was lost on 
 her outward voyage. Hdd, the insurer was 
 liable for the sum insured, because the policy 
 was for one entire sum out and home. Meech 
 «. Philadelphia Int. Co., 3 Whart, 473. 
 
 4. Kthe ship owner contracts with a third 
 person for freight, the risk commences and 
 the policy attaches as soon as the voyage be- 
 gins, although there is no careo taken in. 
 EaH t. Ddaware Int. Co., 3 Wash. G. C, 346. 
 
 5. Valued policy on freight, at and from 
 the home port to the outward port, and at and 
 from thence back to the home port, the freight 
 on the whole being valued at $2,000. She de- ' 
 
 livered her cargo at the out port and earned 
 freight $3,000, and took another amounting to 
 $3,000, but was captured on the home passage. 
 Seld, the valuation covered each voyage, auU 
 that the insured was entitled to the sums in- 
 sured without giving credit to the insurer for 
 the freight received. Davy e. HaUett, 3 
 Caines, 16. 
 
 6. On freight ; tlie ship was lost before the 
 voyage was ended. Insurers contended, that 
 as the insured would have been necessarily 
 put to the expense of wages and provisions, 
 had the vessel arrived safely, they were en- 
 titled to a deduction for the amount of wages 
 and provisions, not expended. Held, they 
 were not entitled to it, but must pay the gross 
 freight Stevens v. Columbian Ins. Co., 8 
 Caines, 43. 
 
 7. The cargo was all procured and ready to 
 he shipped ; the vessel had taken in a part of 
 it, was in the act of taking in the balance, 
 but was driven ashore in a gale. Held, in- 
 sured on freight was entitled to a total loss for 
 the amount valued in the policy. DeLongue- 
 mere o. New York Fire Ins. Co., 10 Johns., 203 ; 
 DeZonguemere v. Phasnix Ins. Co., id., 138. 
 
 8. While the master is bound to forward 
 the cargo by anotlicr vessel, if one can be 
 found, he is not bound to seek another unless 
 one can be found at tlie port of distress or at a 
 port contiguous. SaUus v. Ocean Ins. Co., 13 
 Johns., 107. And a vessel disabled at Kinsale, 
 the master was not bound to go to Cork where 
 he might have procured one. Ibid. 
 
 9. The right to recover for a technical 
 total loss of freight is subject to the same rule 
 which governs the right in the case of vessel 
 or cargo, namely, a loss exceeding one-half 
 the value. Center v. American Ins. Co., 7 Cow., 
 564; aflBrmed, 4 Wend., 46. 
 
 10. On freight The cargo was salt in 
 sacks; a large portion of it was washed out 
 by perils of the sea. Held, the contract of 
 insurance upon freight is, that the goods shall 
 arrive at the port of delivery, notwithstanding 
 the perils insured against; and if tbey are 
 washed out by perils of the sea, the insurer of 
 freight is liable. DeWolf c. State Mutual Fire 
 and Marine Ins. Co., 6 Duer, 191. 
 
 1 1. On freight She was stranded three or 
 four miles from the port of delivery, which 
 was then infected with yellow fever. The ex- 
 pense of delivering that portion of the cargo 
 saved exceeded the freight upon it The mas- 
 
 293 
 
687 
 
 FREIGHT. 
 
 588 
 
 What is a total loss of. 
 
 ter perished with the wreck, and an abandon- 
 ment was made to an agent acting in behalf 
 of the insurers, who saved and delivered some 
 of the cargo to the consignees. Held, a total 
 loss of freight. Mobertaon v. Atlantic Mut. Ins. 
 Co., 5 J. & Sp. (N. Y.), 442. 
 
 1 2. " On ship and freight, at and from Am- 
 sterdam to Philadelphia, each subject valued 
 separately." Ship suffered so much from bad 
 weather that she was obliged to go into an 
 English port to refit. Her repairs exceeded 
 half her value, and while she was refitting, in- 
 sured offered to abandon ship and freight to 
 insurers, who refused to accept an abandon- 
 ment of the freight, but accepted an abandou- 
 meat of the ship, and paid a total loss on her. 
 She pursued her voyage and delivered her 
 cargo in good order in Philadelphia, and 
 earned freight the same as If she had met with 
 no disaster. Held, insurers of freight were 
 liable for a total loss of it, to the amount val- 
 ued in the policy, notwithstanding it was 
 largely over-valued. Goolidge t. Gloucester 
 Momne Ins. Co., 15 Mass., 341. 
 
 13. Insured chartered a ship out and back, 
 for which he was to pay $750 for the out pass- 
 age and $750 for the return. She took a cargo 
 for which he was to receive $1,003 at the out 
 port; and he insured $1,000 on the freight 
 to the out port, and $500 from the out to the 
 home port; the freight being valued at $1,500 
 in the policy. Seld, he had an insurable in- 
 terest which was protected by the policy, and 
 was entitled to recover $1,000, notwithstanding 
 nothing became due from him to the ship 
 owner. Clark v. Ocean Ins. Co., 16 Pick., 289. 
 
 14. On freight of the brig Andes, from New 
 York to St. Johns, Florida, thence to Charles- 
 ton, for the use of the owners. They char- 
 tered her to persons who intended to ship 
 cargo. She left New York June 7, 1835, and 
 was never heard of. Held, instu-ed was enti- 
 tled to recover as for a total loss of freight 
 that would have been under deck. Adams v. 
 Warren, Ins. Co., 22 Pick., 168. 
 
 1 5. Insured chartered vessel, except cabin 
 and room for crew, from Palermo to New 
 York for $2,500, and $85 per diem demur- 
 rage. He insured freight at and from Ca- 
 diz to a port in Sicily, and at and from thence 
 to port of destination in the U. S. She had on 
 board a small quantity of goods on freight 
 for the port of destination, and was ready 
 to sail for Palermo, but was lost in the Bay 
 
 294 
 
 of Cadiz. Held, the whole freight from Cadiz 
 to Palermo and from Palermo to the U. 8. 
 was the entire subject of insurance ; that the 
 valuation was not so great as to raise a suspi- 
 cion of fraud ; that the insurers were not enti- 
 tled to have the policy opened, and mast pay 
 a total loss. Sobinson v. Manufadurtrs Ijis. 
 Co., 1 Met., 143. 
 
 16. On freightvalued at $25,000. She sprung 
 a leak, and it was impossible to procure re- 
 pairs. The cargo was transhipped for about 
 the same freight she would have earned upon 
 it, and it arrived safely at the port of destina- 
 tion. The loss of the vessel became construct- 
 ively total. Held, the safe delivery of the 
 cargo at the port of destination did not relieve 
 insurer of freight; for, as a general rule, if the 
 vessel is wholly lost by a peril insured against, 
 the power to earn freight is lost, and the insurer 
 becomes liable on his contract ; and the rule is 
 the same in cases of constructive as of actual 
 total loss; the right of the owner in cases of 
 constructive total loss to abandon his vessel, 
 and thereby lose the power of earning freight, 
 cannot be restricted or taken away by the ex- 
 istence of policies on the cargo and freight; 
 the insurers on freight must be presumed 
 to have taken, as one of the risks included in 
 their contract, a constiuctive total loss of the 
 vessel, and to have contemplated that by a 
 lawful abandonment and consequent vesting 
 of the ship's title in her insurers, the Inability 
 of the insured to receive freight. Thwing v. 
 Washington Ins. Co., 10 Gray, 443. 
 
 17. On ship and freight. She was badly 
 damaged by sea perils, and put into Nassau, 
 where the master left her and made his way 
 to the United States. After consulting with 
 the owners he returned to Nassau, where she 
 was condemned, and sold for $810 gold. Tern- 
 porary repairs were made at Nassau, and she 
 took a cargo of cotton for Liverpool; was 
 there repaired at an expense of $7,735, and 
 sold for $6,202, gold. Insured abandoned 
 to their insurers. £«id,they were entitled to 
 recover as for a total loss of ship and freight 
 Dunning v. Merchants Mutv^aL Marine Ins. Co., 
 57 Me., 108. 
 
 18. On brig and her freight, valued at $4,500 
 and $1,500. She made Kingston in distress. 
 It would have cost to repair her more than 
 she would have been worth when repaired, 
 and but one vessel could have been found in 
 which to tranship, and she could not have 
 
589 
 
 FBEIGHT. 
 
 590 
 
 What is a total loss of. 
 
 taken more than qne-half the cargo. Ship and 
 cargo were sold for benefit of all concerned, 
 and insured abandoned. Sold, no freight pro 
 rata was due ; that ship and freight were total 
 loss. CaUenderv. Insurance Company of Ifortk 
 America, 5 Binn., 525. 
 
 19. She was under contract of charter party 
 to load at Mobile for Liverpool, and her 
 freight was insured from New Orleans to Mo- 
 bile and from Mobile to Liverpool ; valued at 
 $5,000. Insurers were not apprised that she 
 was under charter party, nor did they make 
 any inquiries as to the fact. She was wrecked 
 before she took in any of her cargo. Sdd. 
 sailing under the charter party gave her own- 
 ers an insurable interest in her freight, which 
 commenced at the time she left New Orleans, 
 and insured were entitled to recover the whole 
 sum valued in the policy. Hodgson e. Miisia- 
 tippi Ins. Co., 8 La. (O. S.), 341. 
 
 2«. On merchandise, $3,750, and on freight 
 paid, $1,600. The defendant did not deny that 
 insured had paid the freight in advance. 
 Held, insured was not bound to prove that 
 he had paid it in advance, nor could insurer 
 escape liability on the ground that the freight 
 thus paid in advance might be recovered back 
 in consequence of the loss of the cargo. 
 Katheman e. Otneral Mat. Ins. Co., 12 La. An., 
 85. 
 
 21." Three thousand dollars upon the freight 
 list of the Cataract, St Louis to New Orleans, 
 against total loss only." She sustained injurj- 
 by one of the perils insured against, which 
 rendered imjiossible all further prosecution of 
 the voyage; nor could the cargo have been 
 sent forward at a less freight than the origi- 
 nal ; nor could she have been repaired in time 
 to prosecute the voyage. Held, insured was 
 entitled to recover if the vessel was prevented 
 from transporting the cargo by the perils in- 
 sured against; after the vessel is disabled 
 the freight that is or may be earned in respect 
 of the cargo does not affect the right of action 
 on the policy, but is to be regarded only in 
 adjusting the amount of it. Willard ti. MiU 
 Irrs and Manufacturers Ins. Co., 24 Mo., 561. 
 
 22. On fireight list valued at |6,000. She 
 became a total loss. There was no opportu- 
 nity to forward the goods to their destination 
 and no freight was earned. Held, the esti- 
 mated expense of carrying the cargo from the 
 place of loss to the port of destination was 
 not to be deducted or considered in determin- 
 
 ing the question of damage.s against in- 
 surer. Lockwood «. Atlantic Mut. Ins. Co., 47 
 Mo., 50. 
 
 23. On freight from M. to C, at and from 
 thence to B. She delivered her freight at C. 
 and took in cargo; but while proceeding with 
 her lading, was forcibly carried back to M. by 
 a ship of war, where she was detained for 
 some time, but subsequently restored. The 
 charterer allowed $1,200. C. being blockaded, 
 the voyage was broken up and abandoned. 
 Forty-seven days after the capture, the master 
 chartered her on another voyage from M. to 
 H. Held, the ship owner was not entitled to 
 full freight until the vessel ai-rived at B, the 
 port of destination ; that a ship cannot be re- 
 quired to await the restoration of peace or the 
 removal of an embargo, so as to allow her to 
 return to her original port of lading, nor to 
 wait an indefinite time for a cargo to her port 
 of destination; hence, insurers of freight were 
 liable for a total loss. Charleston Insurance and 
 Trust Co. e. Comer, 2 Gill, 410. But the in- 
 surer was entitled to credit for the freight re- 
 ceived from the charterer. Ibid. 
 
 24. " On freight." Held, if the vessel be- 
 came incapable of bringing the cargo home, 
 the master was bound to act as a prudent 
 owner would have acted, having regard to the 
 state of the ship, but without regard to whether 
 there was or not insurance on freight. Cfreen 
 V. Royal Exchange Ass. Co., 6 Taunt., 68 ; s. c, 
 1 Marsh., 447. 
 
 25. On freight and cargo. Quebec to Lon- 
 don. She sprung a leak, was aground on a 
 reef, and in imminent danger of being do. 
 stroyed. The master, acting under tlie advice 
 of a surveyor and a part owner, who was agent 
 for the other owners, sold her in that danger- 
 ous condition; but she was afterwards saved 
 and repaired by the purchasers, and carried a 
 cargo to London. Held^ a total loss of freight. 
 Idle 0. Royal Exchange Ass. Co., 8 Taunt, 755 ; 
 3 Moore, 115. 
 
 26. A. let his ship to carry goods and pas- 
 sengers, and agreed to make certain proposed 
 alterations, so that her capacity for carrying 
 passengers would be largely increased, and 
 that she should be found, on the usual mili- 
 tary survey, capable of accommodating a cer- 
 tain number. He commenced alterations, 
 received a part of the cargo, and shipped 
 water for one hundred invalids. She was then 
 disabled in a gale so that she could not per- 
 
 295 
 
591 
 
 FREIGHT. 
 
 592 
 
 What is a total loss of. 
 
 form the voyage. EM, the contract for freight 
 and passage was sufficient to render the in- 
 surers of freight liable for freight and passage 
 money. Truscott v. Christie, 2 B. & B., 320; 
 5 Moore, 33. 
 
 27. Open policy on freight. On the safe 
 arrival of the ship, freight would have been 
 paid, £3,068, which would have taken to earn 
 it, seamen's wages, pilotage, etc., £699. The 
 question disputed was, whether the insurer 
 should pay the larger sum or deduct the 
 smaller from the larger, and pay the balance. 
 Held, evidence was admissible to prove the 
 uniform custom in settling such losses, to pay 
 the gross freight; and the insurer was liable 
 for the gross sum. Palmer v. Blackburn, 1 
 Bing., 62; 7 Moore, 337. 
 
 28. On freight She was driven on shore 
 and imbedded eight feet in the sand above' 
 high water mark, very much strained and 
 damaged. One-third of the cargo was on 
 board and the rest engaged. She could not 
 have been got off except at great expense, 
 which no prudent person would have incurred. 
 She was sold, but the purchasers got her off 
 three months afterwards. Held, a total loss 
 of freight and no abandonment needed. Mount 
 
 V. Harrison, 4 Bing., 388; 1 M. & P., 14. 
 
 29. A. let the ship to freight and charter 
 to B. for a voyage at £100 a month; B. to 
 advance sailing charges on account. The 
 probable duration of the voyage was eight 
 months. C. insured B. £300 advances on sail- 
 ing charges ; and he also insured A. £400 on 
 freight. There was a total loss. Held, A. was 
 his own insurer for a moiety of the risk, and 
 the insurer was not entitled to treat A.'s policy 
 as effected on gross freight, and that A. was 
 therefore entitled to recover the whole sum 
 insured. Etches v. Alden, 1 M. & R., 157 ; 6 
 L. J. R. B., 65. 
 
 30. On freight, Madras to London. She 
 arrived at Madras roads November 30th, and 
 from then till December 5th, the crew were 
 employed discharging cargo. She had con- 
 tracted 122 tons of saltpetre, 90 tons of light 
 goods and 25 tons redwood, but was lost on 
 the 6th before taking them. Held, insured 
 was entitled to recover for freight to be earned 
 by carrying his own goods, as well as those 
 contracted for transportation. Flint v. Fie- 
 myng, 1 B. & Ad., 45 ; 8 L. J. K. B., 350. 
 
 31. On freight, London to Jamaica, liberty 
 to touch at Madeira, discharge and take on 
 
 S9e 
 
 goods there. She was char^red to take gooda 
 at London, proceed to Madeira, deliver some 
 cargo there and take in wine for Jamaica, for 
 £135, to be paid in wine at Madeira, £40 per 
 pipe. She arrived at Madeira, discharged and 
 took in part cargo; but a gale compelled her 
 to slip cables and put to sea, where she was 
 captured. HM., a total loss of freight Atty 
 D.iiVMto, 4B. &P., 236. 
 
 32. "On freight, valued, from Sheerness to 
 Charente and return to a port in the British 
 channel and London." She sailed under a 
 charter party in ballast to Charente, there to 
 take a cargo of brandy. She was kept under 
 an embargo for six months at Charente, then 
 seized and condemned, no cargo being on 
 board. Held, a total loss of freight. Macken- 
 zie V. Sheddon, 2 Camp., 431. 
 
 33. On freight. There was a charter party 
 for a complete cargo, freight to be paid at a 
 stipulated rate. Held, the charter party cre- 
 ated an interest on which the policy had at- 
 tached though no goods were put on board. 
 Moses V. Pratt, 4 Camp., 297. 
 
 34. She was chartered from Liverpool to 
 Jamaica, there to take a cargo for Liverpool 
 at current rates, and a policy was made upon 
 freight, valued at £4,000, from any port or 
 ports in Jamaica to port of discharge in IT. 
 E. She took in part of her cargo and wag 
 lost in a gale, the balance being on shore 
 ready for her to take. Held, a total loss of 
 sum insured. Davidson v. WiUasey, 1 Man. & 
 Sel., 313. 
 
 35. On freight, valued, £1,500. About one- 
 third of the cargo was on board, but the whole 
 was on the quay, ready to be shipped, when 
 she was lost. Held, the insurers must pay the 
 sum insured. Montgomery v. EgginUm, 8 
 Term, 362. 
 
 36. She was chartered from L. to T., to 
 take there a certain number of pipes of wine, 
 and to proceed to B., for which she was to be 
 paid a certain rate per pipe. She sailed upon 
 the voyage and was captured before arrival at 
 T. Held, the plaintiff was entitled to recover 
 of his insurer on freight. Thompson n. Tay- 
 lor, 6 Term, 478. 
 
 37. She was chartered from London to Do- 
 minica, and back to London, at a certain rate 
 for the outward cargo. The charterers were 
 to provide her a full cargo at Dominica for 
 London at current rates of freight. The own- 
 er insured freight at and from Dominica to 
 
593 
 
 FREIGHT. 
 
 594 
 
 What is a total loss of. 
 
 London. Before -any of the cargo -was taken 
 at Dominica she was captured. Hdd, the in- 
 surer was liable for the freight that would 
 have been earned on the homeward voyage. 
 Eorncoitle e. Swaii, 7 East, 399. 
 
 38. Foreign ship chartered to take cargo 
 from London to St. Petersburg to load there 
 and return to London, paying freight per ton, 
 stipulated: The charterer might' detain her 
 forty running days, to discharge and take in, 
 and if she should not be permitted to load, 
 charterer should pay £2,500 on her arrival at 
 London. Insurer agreed to pay charterer total 
 loss if she should not be allowed to load at 
 St. Petersburg for the chartered voyage. The 
 Russian government assumed that the cargo was 
 British, and refused permission to discharge 
 it Master immediately proceeded from St 
 Petersburg to Stockholm, disposed of it and 
 there took a Swedish cargo for London, and 
 earned freight Hdd, not allowing her to un- 
 load was a refusal to allow her to load at St 
 Petersburg, which made insurer liable for 
 total loss, within the meaning of the policy ; 
 that the intermediate voyage to Stockholm did 
 not relieve the charterer of his liability to pay 
 d£2,500, for which sum the insurer was liable; 
 but as the charterer was entitled to credit from 
 the master for the freight received from Stock- 
 holm to London, tJie insurer was also entitled 
 to the same credit from the insured, because 
 the contract was one of indemnity merely. 
 Puller «. StaniforA, 11 East, 232; PuOer v. 
 Glover, 12 East, 124. 
 
 89. A ship was chartered to take lead frcm 
 London to St Petersburg, and to land there 
 a cargo for London, with forty running days 
 to unload and load ; and, if she should not be 
 allowed to unload wifliin that time, she should 
 have the right to return to London or to any 
 port m England. The charterer agreed to pay 
 her £2,700, ".f she should not be allowed to un- 
 load; and, he insured the adventure. She 
 was not permitted to unload ; and, after wait- 
 ing forty days, the master took return cargo 
 for London upon the out cargo, and she earned 
 new freight MM, insured was entitled to 
 recover the sum insured without allowing 
 credit for the new freight earned upon the 
 home voyage. PuUer «. Bailiday, 12 East, 494. 
 
 40. On freight at and from Algoa Bay or 
 Table Bay, both or either, to London. She 
 had discharged all her outward cargo except 
 seven^ tons which was required for ballast 
 
 The homeward cargo was ready. She was 
 lost before she took in any homeward car- 
 go. HtUd, if she was in a condition to begin 
 to take in her home cargo the insurer was li- 
 able. WiUiamson e. Inntg, 1 H. & Bob., 88 ; 
 8. c, 8Bing.,80n. 
 
 'A\. " On ship, cargo, and freight, from 
 Calcutta, or any ports or places on the Coro- 
 mandel coast to any ports or places in Bour- 
 bon." The loss was averred on freight; that 
 while she was at Coringa to take ou a full 
 cargo which had been provided and would 
 have been put on board, she was by perils of 
 the sea broken, destroyed and rendered in- 
 capable to pursue the voyage. She arrived 
 on the coast of Ooromaudel leaking badly. 
 The Inaster was directed by the authorities to 
 take her up the river into a dock, as was cus- 
 tomary in that country, because the extent of 
 the defect could not be ascertained till she 
 was put into dock. She was accordingly 
 taken to Coringa and put into dry dock, 
 while her return cargo was being purchased ; 
 but before all her repairs were completed a 
 a full cargo of rice, bufialo horns and hides 
 was safely deposited for her in warehouses 
 seven miles from Coringa. Afterwards she 
 was reported ready for sea and could have 
 been got afloat in a couple of hours; but 
 the fastenings yielded, two ribs at the fastening 
 of the starboard forecable were broken, and 
 other serious injury resulted to the ship ; in 
 consequence it became necessary to dock her 
 afresh and repair the damages. The costs of 
 repairs would have amounted to more than 
 the vessel was worth ; no money upon bot- 
 tomry or otherwise could be borrowed for the 
 purpose of repairs, and a period of eight 
 months would have elapsed before the neces- 
 sary materials for repairs could have been 
 procured from other places. The authorities 
 at Coringa therefore directed an abandonment 
 of the vessel, and she was broken up and 
 sold. The cargo was conveyed to Bourbon 
 by another vessel, and over 6,000 rupees were 
 paid for the freight of it Held, she was dis- 
 abled and prevented from taking the cargo by 
 one of the perils insured against, while the 
 endeavor to get her out of the dock and into 
 the river was being made ; that the policy at- 
 tached ; the distance from the ship to the place 
 where the cargo was deposited was immater> 
 iaL Be Vaux e. Jansoa, 8 L. J. (N. S.), C. P., 
 284; 5 Bing. (N. C.),519; 8 Jur., 678. 
 
 297 
 
695 
 
 FREIGHT. 
 
 596 
 
 What ia a total loss of. 
 
 42. "Ou freight, from January 34th to 
 March 1, 1852." She was laden with coal for 
 Aden, where she could not have arrived until 
 long after March 1st She was compelled to 
 put into Cuxhavea February 8th with fifteen 
 feet of water in her hold. The coal was high- 
 ly impregnated with deliquescent salts, and 
 would have been extremely dangerous had it 
 been carried forward in that condition; and it 
 would have cost more than thrice its value to 
 free it from the salts. Insured abandoned, 
 and the ship proceeded on another voyage. 
 Sdd, a total loss. Michael n. Qillespie, 2 C. 
 B. (N". a.), 021; 8. c, 3 Jur. (N. S,), 1219; 26 
 L. J. C. P., 306. 
 
 43. " On cash on account of freight" The 
 declaration alleged the shipment and prepay- 
 ment of freight; that she encountered a storm 
 and sustained so much damage that she was 
 prevented from proceeding without being 
 repaired, which could not have been done ex- 
 cept at an expense greater than her value when 
 repaired, together with the freight she would 
 have earned on the voyage; that the master 
 was bbliged to, and did, abandon the voyage, 
 and that insured procured two other vessels to 
 carry the goods, at a rate of freight exceeding 
 the freight originally payable under the char- 
 ter parly. Seld, the plaintiff was entitled to 
 recover as for a total loss of the prepaid freight, 
 because the master was justified in abandon- 
 ing the voyage. DeOuadra e. Swann, 16 C. 
 B. (N. S.), 772. 
 
 44. Policy on chartered freight, valued at 
 £5,000, stipulated : " Insurers might sue and 
 labor for, in and about the preservation of the 
 property insured ;" and " Warranted free from 
 particular average." She w.is damaged in a 
 gale, and put into Rio, where she was found 
 unworthy of repairs, and the cargo was for- 
 warded by another vessel at a cost of £2,467 
 lis. lOd. The goods were delivered, and the 
 chartered freight paid to insured. Held, 
 freight pro rata itineris could not have been 
 claimed by the ship at Rio; hence there was 
 a total loss of freight; that the expenses in- 
 curred in forwarding the goods to destination 
 were charges within the suing and laboring 
 clause incurred for the benefit of insurers of 
 freight, to protect them against a total loss of 
 it, for which they would have been liable but 
 for the incurring of these expenses. The 
 court here repudiates the doctrine announced 
 by Kent, C. J., in Bradhurst v. Commercial Ins. 
 
 Co., 9 Johns., 17. Kidgton ®. Empire Marine 
 Ins. Co., 2 L. R. C. P., 357; 36 L. J. C. P., 156; 
 16 L. T. (N. S.), 119; 15 W. R., 769; affirming 
 s. c, 1 L. R. C. P., 535; 12 Jur. (N. S.), 665; 
 15 W. R., 63; 15 L. T. (N. S.), 12; 35 L. J. C. 
 P., 250. 
 
 45. "On chartered freight, at and from 
 Mauritius to rice ports, and at and from thence 
 to a port of 'discharge in the U. K., valued at 
 £1,150." She was about to proceed from Cal- 
 cutta to Mauritius, and was chartered to take 
 a cargo of rice from Mauritius to the U. K. 
 She arrived at Mauritius, and was lost while 
 discharging her cargo. Seld, the policy at- 
 tached when she arrived at Mauritius; hence 
 insurers were liable (citing Thompson v. Tay- 
 lor, 6 Term, 478; Barber v. Fleming, 5 L. 
 R. Q. B., 59). Foley u. United Fire and Marine 
 Ins. Co., 5 L. R. C. P., 155 ; 33 L. J. C. P., 306; 
 18 W. R., 437; 22 L. T. (N. S.), 108, Exch. 
 Cham. 
 
 46, While on a voyage from Glasgow to 
 New Zealand, with cargo and government 
 emigrants for Otago, she was chartered by M. 
 to proceed from Otago to Calcutta to load for 
 London; and this policy was written, "At and 
 from the Clyde to Southland, N. Z., while 
 there, and thence to Otago, and for thirty days 
 in port there after arrival, on homeward chart- 
 ered freight." She grounded at Bluff harbor. 
 Southland, April 23, 1863; the passengers and 
 their luggage were sent forward at the ex- 
 pense of the ship. She grounded again twice, 
 and did not get clear till July 1st, arriving at 
 Dunedin on the 4th. On being examined she 
 was found damaged to a very considerable ex- 
 tent, but not enough to prevent her, after mak- 
 ing temporary repairs, proceeding to Calcutta, 
 where she could undergo further examina- 
 tion and make complete repairs. She arrived 
 at Calcutta, June 7th following, when it was 
 found that the damages sustained at Bluff har- 
 bor were so great that they would cost to re- 
 pair them more than her value when repaired, 
 plus the homeward freight The charterer 
 had also stopped payment, and his agents at 
 Calcutta refused to load the ship. She was 
 detained at Calcutta until April 14th follow- 
 ing, when she became a total wreck in a cy. 
 clone which then occurred. Seld, the plaint- 
 iffs, not being bound to repair her, were re- 
 leased from the obligations of the charter 
 party; there was therefore no right or interest 
 in the owners in respect of freight which they 
 
S97 
 
 FREIGHT. 
 
 598 
 
 What is partial loss of. 
 
 could abandon to the insurers ; that the only 
 benefit that a notice of abandonment, under 
 such circumstances, could have conferred upon 
 insurei-s was, that tliey might have chartered 
 a vessel and have applied to the charterer to 
 let them bring the cargo home, taking their 
 chance of his acceptance, which he was not 
 bound to give, because he was entitled to the 
 vessel contracted for, and not obliged to take 
 another ; that this benefit was not a tangible 
 and appreciable right; that the circumstances 
 of the case were not such as to call upon the 
 insured to msike a further examination of the 
 vessel before she left New Zealand, with the 
 view to ascertain whether there was or not a 
 constructive total loss, and that notice of 
 abandonment having been given as soon as 
 the true condition of the vessel was ascer- 
 tained, it was suflScient Potter v. Rankin, 6 
 L. R. Eng. & Ir. App., 83; affirming s. c, 43 
 L. J. C. P., 169; 5 L. R C. P., 341 ; 23 L. T. 
 (N.S.), 347; 18 W. R., 607; 39 L.J. C. P., 147; 
 reversing s. c, 3 L. R C. P., 562; 37 L. J. C. 
 P., 257 ; 18 L. T. (N. S.), 713; 16 W. R., 1049 ; 
 Potter V. Campbell, 16 id., 399. 
 
 47. " On chartered freight, valued at£2,900." 
 She was to proceed with all convenient speed, 
 dangers of navigation excepted, " Liverpool to 
 Newport," to take a cargo of iron rails, thence 
 to San Fi-ancisco. She grounded in Carnar- 
 von Bay January 4, 1873, was got off, and re- 
 turned to Liverpool April 13th. The char- 
 terers threw up the charter February loth, and 
 hired another ship to carry the rails to San 
 Francisco. The jury found specially that the 
 time necessary to get her off and repair her 
 made it unreasonable for the charterers to 
 supply the agreed cargo at the end of that 
 time, and, in a commercial sense, put an 
 end to the enterprise entered npon by the 
 ship owners and the charterers. Held, the 
 charterers were absolved from loading the 
 vessel, hence the ship owner was entitled 
 to recover for the loss of freight Jackson 
 e. Union Mut. Ins. Co., 8 L. R. C. P., 573; 
 23 W. R,79; affirmed, 10 L. R C. P., 135. 
 
 VII. What is pabtial loss of. 
 
 1. "On freight from Teneriffo to Havana, 
 and at and from thence to New York, with 
 liberty to stop at Matanzas." On a second 
 policy by the same company, on the same sub- 
 
 ject, on the same voyage, there was no liberty 
 to stop or touch at Matanzas. She put into 
 Matanzas, June 3d, to avoid British cruisers, 
 then in sight, unloaded and delivered cai-go 
 there to the Spanish owners, who paid $7,000 
 as freight to Havana. Insured received it 
 " in full of all demands as freight or otherwise 
 under or by virtue of the aforesaid charter 
 party and cargo." At Havana she took a new 
 cargo belonging to persons in New York, con- 
 sisting of 120 boxes sugar, at a freight of $3.50 
 per box. She sprung a leak on the voyage, 
 and transhipped half of the cai-go to another 
 vessel, bound for Norfolk, where it was safely 
 landed. Held, the freight received at Matan- 
 zas did not prevent the insured from recover- 
 ing for a loss of freight from Havana to New 
 York. Hughes v. Union Ins. Co., 8 Wheat., 
 294. 
 
 2. On freight. New Orleans to Havre. She 
 took a cargo of cotton and tobacco, woods and 
 wax, the freight of which was nearly $10,000. 
 She was in tow of a steamboat, proceed- 
 ing toward the bar near the mouth of the 
 Mississippi; the current ran very rapidly, 
 which caused the ship to sheer and surge vio- 
 lently; the steamboat lost steerage way, the 
 ship took the ground and remained hard and 
 fast; the eddy current caused the steamboat to 
 swing round, and she drove stern foremost 
 upon the ship with great violence, and broke 
 in her larboard side. She commenced to leak 
 immediately, the water increased from six to 
 sixteen feet in the hold ; the cargo was tran- 
 shipped to steamboats and carried back to 
 New Orleans, to which place she was taken, 
 repaired and fitted for sea, and took a cargo 
 for England, all of which was done within 
 six weeks. The undamaged cargo, value 
 $3,310, was sent to Havre by another vessel ; 
 the damaged goods were soqI at New Orleans 
 under the advice of expert surveyors, and 
 brought $19,774.23. The whole cargo was in- 
 voiced at $71,000. The cotton in its wetted 
 condition, had it been reshipped, would have 
 been subject to spontaneous combustion, but 
 it might have been put in a condition for 
 reshipment, but that would have taken six 
 months. Held, the insurers of freight were 
 not liable for a total loss of it; but insured 
 were entitled to recover freight for the goods 
 physically lost (citing Anderson v. Wallis, 3 
 Mau. & Sel., 240; Everth v. Smith, id., 378 ; 
 Herbert e. Hallet, 3 Johns. C, 93; Griswold « 
 
 299 
 
599 
 
 FREIGHT. 
 
 600 
 
 What is paitial loss of. 
 
 N. T. Ins, Co., 3 Johns., 321 ; Saltus v. Ocean 
 Ins. Co., 14 id., 138; Whitney ®. N. T. Ins. Co., 
 18 id., 208; M'Gaw o. Ocean Ins. Co., 23 Pick., 
 405 ; Mordy v. Jones, 4 B. & C, 394). Jordan 
 V. Warren Ins. Co., 1 Story, 342. 
 
 3. On freight, at and from Bordeaux to the 
 United States, against perils of the seas, ar- 
 rests, re,straints, detainments of all Isings, 
 princes, etc. She sailed from Bordeaux No- 
 vember 17th ; and on the 20th, before she reach- 
 ed the mouth of the Garonne, was embargoed 
 by the French government, which was not 
 taken off untlljanuary 10th. During the em- 
 bargo, an expense was incurred for seamen's 
 wages, provisions and extra pilotage, $875. 
 She completed her voyage, and received 
 freight according to the original stipulation 
 between shipper and ship owner. Held, the 
 expense was an immediate consequence of the 
 embargo at Bordeaux; the injury was done 
 exclusively to the freight, and. in the absence 
 of any commercial usage to the contrary, the 
 Insurers of freight were liable for it. Jones 
 f). Insurance Go. of North America, 4 Dall., 247. 
 
 4. On freight. She took a cargo of guano 
 at the Chincha Islands for New York and 
 sailed. She sprung a leak and was compelled 
 to return to Callao for repairs. A part of the 
 cargo had been so much damaged by sea 
 water that it was in a semi-liquid state, utter- 
 ly worthless, and could not be kept in the ves- 
 sel. The cost of drying would have been 
 gi-eater than its value when dried; and it 
 was thrown overboard. The vessel could not 
 be repaired with the cargo on board. The 
 necessary appliances for unloading could 
 not be procured at Callao ; the balance was 
 therefore transhipped to another vessel bound 
 for England, and she was allowed fifty cents 
 per ton for the part transhipped. After repairs 
 were complete, the charterers consented that 
 she should go to the Islands and take another 
 cargo under the original charter; and in pur- 
 suance of that, she took one and delivered it 
 safely in New York. Hdd, insured on freight 
 was entitled to recover freight on the cargo 
 thrown overboard at Callao, but they were not 
 entitled to recover a total loss of freight for 
 the voyage. Pairsons v. Hanufaeturers Ins. 
 Co., 16 Gray, 463. 
 
 5. " On freight, laden or to be laden. 
 New Orleans to Gibraltar, with liberty to go 
 to Cape deVerds for salt, and back to the United 
 States. She delivered her cargo out, and with 
 
 300 
 
 the freight earned purchased part cargo of 
 wine, took some wine on freight for other per- 
 sons, and sailed for the Cape de Yerds to in- 
 vest balance of freight earnings in salt; 
 she was lost on the voyage. Held, the in- 
 surers were liable for the freight of the goods 
 on board and no more, altliough, had she 
 reached the Cape de Yerds and taken the salt 
 there, her freight would have been over 
 $2,000. Silejf V. Hartford Ins. Co., 2 Conn., 
 368. 
 
 6. The vessel was to proceed from M. to C. and 
 thence to B. ; and when the voyage should be 
 ended, the owners were to receive a gross sum ; 
 but she was forcibly taken away from C . be- 
 fore her lading was completed. Held, the 
 the charterer was not bound to pay full 
 freight. Clui/rleston Ins. & T. Co., v. Corner, 
 2 Gill, 410. 
 
 7. She grounded; an unsuccessful effort 
 was made to get her off. She was surveyed, 
 and the master was obliged to strip her and 
 save what he could. Subsequently, about ten 
 days after she grounded, ship and cargo were 
 sold. The cargo, and a large quantity of her 
 stores, were substantially uninjured, all of 
 which might have been forwarded to their 
 destination. The policies were against total 
 loss only. Held, as to the policy on cargo, no 
 recovery could be had ; but as to that on dis- 
 bursements, insured were entitled to recover, 
 because the vessel was rendered unable to earn 
 freight. Currie v. Bombay Natvoe Ins. Co., 3 L. 
 E. P. C, 72; 6 Moore P. C. C. (N. S.J, 302; 39 
 L. J. P. C, 1 ; 22 L. T. (N. S.), 317 ; 18 W. R., 
 296. 
 
 8. On ship, and on freight. She was de- 
 tained by embargo, and the respective sui> 
 jects insured were abandond. The insur- 
 ers on ship authorized the insured to act for 
 them, for the purpose of recovering tlie 
 freiglit She afterwards brought the cargo 
 home, and freight was paid upon it Held, the 
 insurers of freight were eiititlcd to recover it 
 from the insured. LeatJum v. Terry, 3 B. & 
 P., 478. 
 
 9. The owner of ship abandoned her to his 
 insurers, and he also abandoned freight to in- 
 surers of it; both paid total losses, but she 
 subsequently reached the port of destination 
 and earned freight, which was received by in- 
 sured. HeUd, the ship and freight were sal- 
 vage to the different insurers; and that in- 
 surers of freight were entitled to recover all 
 
601 
 
 FREIGHT. 
 
 602 
 
 When insurers of ship shall have freight earned. 
 
 that insured had collected, subject to any de- 
 ductions -which were properly a charge 
 against it. Sharp v. Oladatone, 7 East, 24; 3 
 Smith, 39. 
 
 10. " On freight, valued at the sum insured, 
 Cameroons to Liverpool." She was stianded 
 near Pwllheli, on the Welsh coast, where it 
 became necessary to land the cargo. She was 
 towed to the nearest port, Carnarvon, and 
 made thoroughly seaworthy; but the freight 
 was forwarded by railway to Liverpool at 
 ship's cost, £312 15s. Id. Insured received 
 freight according to bill of lading. Se!d, 
 insured was entitled to recover only that ex- 
 pense which was necessary. for the purpose 
 of earning freight. Lee e. Southern Ins. Co., 5 
 L. R. C. P., 397; 22 L. T. (N. S.), 443; 18 W. 
 R., 863; 39 L. J. C. P., 213. 
 
 11. "On chartered freight, at and from 
 Bombay to Howland's Island, while tliere, and 
 thence to any port In the United Kingdom." 
 She sailed from Bombay, in ballast, October 
 4, 1866, under charter to take a cargo of guano 
 from the island, intending to call at a port in 
 Kew Zealand for water, but she went ashore 
 on the coast of New Zealand, December 25th, 
 following, and was so much damaged that the 
 voyage was necessarily abandoned. Held, the 
 contract of affreightment gave the ship owner 
 an interest in freight, and the amount of loss 
 was recoverable under the policy. Barber e. 
 Fleming, 5 L. J. Q. B., 59 ; 39 id., 25 : 18 W. R., 
 254. 
 
 12. A. chartered his ship to B. — coals — 
 "Greenock to Bombay," at 42s. per ton, one- 
 half to be prepaid, and the remainder upon 
 right delivery of the cargo. The charterer 
 paid the one-half of the freight to the ship 
 owner, who procured this policy. She was 
 lost near Bombay ; about half the cargo was 
 lost, and the other half safely delivered to the 
 consignee.s free of freight. Held, insurers 
 were not liable for a total loss of the unpaid 
 freight, for the owner of the cargo could not 
 appropriate the whole amount prepaid to that 
 portion of the cargo which was actually deliv- 
 ered, but that it should be applied pro rata on 
 the cargo delivered; hence there was a loss of 
 one-half of the freight on the coals not deliv- 
 ered, for which insurers were liable, Allison 
 V. Bristol Marine Ins. Co., 9 L. R. C. P., 559 ; 
 43 L. J. C. P., 311 ; 21 W. R., 930 ; 30 L. T. (N. 
 S.), 877; reversing s. c, 42 L. J. C. P., 334. 
 
 YIII. "When insueees of ship shall 
 
 HAVE FEEIGHT EAKNED. 
 
 1. The ship was abandoned and the insurer 
 accepted it, but the voyage was afterwards 
 performed. Held, the freight earned was the 
 property of insurer of ship. United Irts. Co. 
 V. Lenox, 1 Johns., 377; 8. c. afSrmed, 2 id., 
 443. 
 
 2. If the cargo owner directs a sale of the 
 property at the port of necessity, receives the 
 net proceeds as the owner of the cargo, that is 
 a partial not a technical total loss of cargo, 
 and the ship is entitled to freight pro rata for 
 which the insurers on freight must receive 
 credit. Whitney v. Nem York Firemen's Ins. 
 Co., 18 Johns., 208. 
 
 3. The insured abandoned, and the insurer 
 adjusted as for a total loss of freight; but she 
 subsequently earned freight on the voyage. 
 Held, the insured must account to his insurer 
 for it, less the expenses against it. Barclay v. 
 Sterling, 5 Mau. & Sel., 6. 
 
 4. Ship and freight insured by separate in. 
 surers. She was captured and abandoned to 
 them severally, and they paid total losses ; she 
 was recaptured and earned freight, which was 
 paid to insured. Held, insurer of the ship was 
 entitled to the freight earned. Case v. David- 
 son, 5 Mau. & Sel., 79 ; 2 B. & B., 379. 
 
 6. A ship owner insured his ship with A. 
 and his freight with B., and received payment 
 from both as for total losses. He assigned his 
 interest in the ship to the insurers of it, and 
 agreed to account to them for it; and to in- 
 surers on freight he agreed to account for 
 freight. She arrived and earned freight, which 
 was received by insured. Held, he must pay 
 over the money received as freight, to the 
 insurers of freight. Thompson v. Boweroft, 4 
 East, 34. 
 
 6. On ship. She was badly damaged on the 
 voyage, but reached her destination and earned 
 freight. Insurers refused an abandonment. 
 The jury found she was not worth repairing. 
 Held, a total loss. But insurers of ship were 
 entitled to credit for the freight earned in pro- 
 portion as the value of the ship bore to the 
 amount insured on ship. Stetoart v. Oreenock 
 Marine Ins. Co., 8 C. C. S., 323; 18 Soot. Jur., 
 151. 
 
 SOI 
 
603 
 
 FROM THE LOADING. 
 
 604 
 
 Miscellaneous. 
 
 IX. "When insukees of ship shall 
 
 NOT HAVE FEEIGHT EARNED. 
 
 She was " chartered from Portsmouth to 
 Calcutta, one-third of the freight payable with- 
 in fourteen days after sailing, and the other 
 two-thirds within twenty-one days after dis- 
 charge at port of destination," and this policy 
 was made upon the ship for twelve months, 
 from August 13, 1857. About 700 miles be- 
 yond the Mauritius, she took fire, and put 
 back to the Mauritius, where she arrived in a 
 very badly damaged condition. An abandon- 
 ment was offered and accepted. The master 
 hired another vessel, completed the charter, 
 and received the baJance of freight at Cal- 
 cutta. Held, insurers of ship were not entitled 
 to any part of the freight collected, for the 
 master acted as the agent of the ship owner, in 
 taking steps to complete his contract and earn 
 freight (any thing in Stewart «. Greenock Ma- 
 rine Ins. Co., 2 H. of L. Cas., 159, in conflict 
 with this was mere dicta). Hickie v. Bodocan- 
 aeM, 4 H. & N., 455; 5 Jur. (N. S.), 550; 28 L. 
 J. Ex., 273; 7W.K.,545. 
 
 X. Ajbandonment of. 
 
 1. Ad. abandonment of ship to one insurer 
 does not prevent a recovery of freight from 
 another insurer. Livingston v. Columbian Ins. 
 Co., 3 Johns., 49. 
 
 2. Where the ship is driven back to her 
 port of lading, and is in such a condition that 
 she cannot be repaired for half her value, the 
 court will not presume that another vessel 
 could have been employed for a sum less than 
 that stipulated in the original charter party. 
 In such a case, there is no salvage on freight, 
 and therefore nothing to abandon in respect 
 to it, and no abandonment is necessary. Cen- 
 ter V. American Ins. Co., 7 Cow., 564 ; affirmed, 
 4 Wend., 45. 
 
 3. On hull and freight. New Orleans to San 
 Francisco. She was driven into Rio by stress 
 of weather, and compelled to make repairs 
 there ; while doing so, a gale came on in which 
 she was so badly damaged that she was con- 
 demned, sold, and the cargo reshipped by an- 
 other vessel for point of destination. Insured 
 abandoned immediately after intelligence 
 reached them. Insurer did not accept the 
 abandonment, but paid a total loss on the hull, 
 and made a payment on account of the freight 
 
 302 
 
 Held, an acceptance was unnecessary; insured 
 was entitled to recover for a total loss of freight 
 Sogers t. Nashville Marine and Fire Ins. Co., 9 
 La. An., 537 
 
 4. On freight. The master sold the ship 
 while she was in a dangerous position, but 
 the purchasers got her off, repaired, loaded, 
 and navigated her to the point of destination. 
 Held, if the master acted fairly for the benefit 
 of all concerned, in selling her, no abandon- 
 ment of freight was necessary. Idle v. Royal 
 Exchange Ass. Co., 8 Taunt., 755 ; s. c, 3 Moore, 
 115. 
 
 XL MeASUKE of DAMAGE. 
 
 On freight not valued. The ship owner was 
 owner of the cargo. She was lost on the voy* 
 age. Held, the usual and reasonable freight 
 for the voyage was the measure of damage. 
 Paradise v. Bun Mutual Ins. Co., 6 La. An., 596. 
 
 FROM THE LOADING. 
 
 1. On cargo from Vera Cruz to New York. 
 " Beginning the adventure from and immedi- 
 ately after the loading thereof, on board said 
 vessel at Vera Cruz, with liberty to touch and 
 trade at New Orleans or Havana. Held, it did 
 not cover a cargo taken at any place other 
 than Vera Cruz. Graves d. Marine Ins. Co., 
 2 Caines, 339. 
 
 2. On goods, at and from Pernambuco to 
 Maranham, thence to Liverpool, beginning 
 the adventure from the loading thereof where- 
 soever. She carried goods from Liverpool to 
 Pernambuco, disposed of the whole except 
 twenty-five cases, which were not unladen, 
 and she sailed with them for Maranham, with 
 other goods and specie, to be carried to Liver- 
 pool, and was lost between Pernambuco and 
 Maranham. Held, they were within the mean- 
 ing of the policy. Gladstone v. Clay, 1 Mau. 
 & Sel., 418. 
 
 3. On goods from Gottenburg to the ship's 
 port of discharge, " Beginning the adventure 
 from the loading thereof." They were laden 
 at Christiansand, in Norway. She arrived at 
 Gottenburg, August 2d. The goods were not 
 unladen, and no other cargo was taken at Got- 
 tenburg. Held, the loading must be subse- 
 quent to the ship's arrival at the port, and dur- 
 
605 
 
 GARNISHMENT — GENERAL AVERAGE. 
 
 60C 
 
 What are charges in. 
 
 ing the time she is at the port whence the voy- 
 age is to commence, ifellish v. Allnuit, 2 Mau. 
 & Sel., 106. 
 
 4. At and from Gottenburg to any port of 
 discharge in the Baltic, on cofifee and sugar, 
 beginning the adventure from the loading 
 thereof. The cargo was taken at London. 
 She arrived at Gottenburg, but it was not 
 taken out there. The insurer, at the time of 
 executing the policy, knew that fact. Held, the 
 policy did not cover the goods. Langhom v. 
 Hardy, 4 Taunt., 628; Spitta «. Woodman, 2 
 id., 416. 
 
 5. On ship D. H. and her cargo of guano, 
 at and fl-om port or ports in the river Platte to 
 the United Kingdom, " Beginning the adven- 
 ture upon the said goods and merchandises 
 from the loading thereof aboard the said ship 
 at as above." The cargo had been originally 
 loaded at Patagonia, but she made the river 
 Platte in a distressed condition, where, to en- 
 able repairs to be made, a portion of the cargo 
 was taken out, and reloaded when the repairs 
 were completed. At the time the policy was 
 made, insurers had notice that the cargo might 
 not have been taken in at the river Platte ; that 
 it was a Patagonian cargo, and that their de- 
 sire was to effect an insurance, though the ves- 
 sel had then gone over a considerable portion 
 of her voyage. Held, the court would look at 
 all the surrounding facts and circumstances 
 to ascertain what the intention of the parties 
 was, because the instrument was susceptible 
 of more meanings than one; hence the stipu- 
 lation for loading at the port of departure was 
 satisfied on the authority of Nonen c. Kettle- 
 well, 16 East, 176. Carr v. Monte/iore, 5 B. & 
 a, 408; B. c, 10 Jnr. (N. S.), 1069; 33 L. J. Q. 
 B., 356; 12 W. R., 870; 11 L. T. (N. 8.), 157; 
 affirming s. c, 10 Jur. (N. S.). 312; .S3 L. J. Q. 
 B., 57; 10 L. T. (N. 8.), 294; 12 W. R., 126. 
 
 GARNISHMENT. 
 
 (See Attacbkent and QissiemtesT.) 
 
 GENERAL AVERAGE. 
 
 I. What abb chabgbb is. 
 
 II. NOT CHARGES IIT. 
 
 III. SHALL NOT BB COHTRIBUTED FOR. 
 
 IV. What mtjbt contsibtjtb. 
 
 V. SHALL NOT CONTRIBCTB. 
 
 VI. CONTBIBUTORT VALUES. 
 
 VII. Adjustment. 
 
 (a) When conclusive. 
 
 (b) not conclueive. 
 
 (c) What law governs. 
 
 I. "What ake chaeges irr. 
 
 1. The wages, provisions and other expenses 
 of a voyage to a port of necessity, for the pur- 
 pose of making repairs, are charges in general 
 average ; the right to treat them as such does 
 not depend upon whether there are sev- 
 eral subjects on board the ship, but whether 
 there is a common sacrifice for the benefit of 
 all who are or may be interested in the suc- 
 cessful completion of the voyage; nor does 
 the fact that the vessel is insured under a time 
 policy affect the rights of the parties. Potter 
 V. Ocean Ins. Co., 3 Sumn., 27. 
 
 2. Term policy. She sailed from New 
 Providence for New Orleans with a cargo be- 
 longing to her owner ; but she encountered a 
 gale in which she was obliged to cut away 
 her masts and rigging, and was compelled to 
 go to New York for repairs, where it was 
 found the cost would exceed half her value. 
 The owner took the cargo out and sold it. 
 Held, the loss of the masts and rigging were 
 general average, to be apportioned against 
 ship and cargo separately, in the same manner 
 as if each belonged to separate owners; in- 
 surer of ship had a right to be credited against 
 the claim for total loss, with the cargo's con- 
 tribution, because the cargo owner was the in- 
 sured on ship. Potter v. Providence Washing- 
 ton Ins. Co., 4 Mason, 298. 
 
 3. On corn and other cargo. Stipulated: 
 " Salt, grain of all kinds, Indian meal and all 
 other articles perishable in their own nature, 
 are warranted free from average unless gen- 
 eral." It became necessary to cut away the 
 mainmast, and. in doing so, it splintered off be- 
 low the partners, tearing away the coat, and 
 admitted sea water to the cargo. Held, the 
 damage to the cargo caused by the sea water 
 was a charge in general average. Maggrath v. 
 Church, 1 Caines, 196. 
 
 4. If a vessel be obliged from sea damage 
 to bear away to a port of necessity to refit, the 
 wages and provisions of crew, from the mo- 
 ment she bears away until she sails again ou 
 
607 
 
 GENERAL AVERAGE. 
 
 608 
 
 What are charges in. 
 
 her original voyage, constitute a charge in 
 general average, and the owners of ship have 
 a right of action against owners of the cargo 
 for their proportion of the charge. Walden, v. 
 LeBoy, 2 Caines, 263. 
 
 5. Cargo jettisoned in a storm must be con- 
 tributed for in general average. LeRoy v. Gou- 
 vemeur, 1 Johns. C, 226. 
 
 6. Vessel and cargo were seized and con- 
 demned. Hdd, the expenses incurred in at- 
 tempting to procure a release of ship and 
 freight should be borne by each, according to 
 their respective proportions. Watson o. Ma- 
 rine Ins. Oo., 7 Johns., 58. 
 
 7. Where the vessel and cargo are captured 
 and abandoned, and a compromise is made 
 between the captors and the master, the ex- 
 penses incurred are general average against 
 vessel, freight and cargo. Jumel u. Marine 
 Ins. Co., 7 Johns., 412. 
 
 8. Ship drifted from her anchors, being in 
 danger of running foul of other vessels which 
 were adrift; and, for the purpose of saving life, 
 ship and cargo, her cables were cut and she 
 was run ashore, where she was greatly injured. 
 Seld, the damages caused by the stranding 
 were to be contributed for in general average. 
 Bradhurst et al. v. Columbian Ins. Co., 9 
 Johns., 9. 
 
 9. Vessel and cargo stranded near Shrews- 
 bury. All parties took measures to save the 
 property without prejudice to the rights of 
 either. The cargo was saved and brought in 
 sound state to point of destination (New York) 
 in lighters; but the vessel was totally lost, ex- 
 cept a few materials. Beld, the expenses were 
 incurred for the benefit of all, and constituted 
 general average charges against vessel, freight 
 and cargo. Heyliger v. Neva York FiremerCs 
 Ins. Co., 11 Johns., 85. 
 
 10. Part of the cargo was thrown overboard 
 for the preservation of ship and cargo, and 
 the residue greatly damaged; upon unloading 
 to repair, was found unfit to be reshipped, and 
 was sold. Held, so much of it as was thrown 
 overboard must be made good in general aver- 
 age. Saltus v. Ocean Ins. Co., 14 Johns., 138. 
 
 11. She was bound from New York to Mo- 
 bile, and was stranded near Mobile Point. 
 The cargo was put into lighters and forwarded 
 to Mobile. On their passage from the vessel 
 to Mobile, the defendant's goods were dam- 
 aged. Held, in adjusting the general average, 
 it was proper to take into account the loss 
 
 304 
 
 that had occurred to the defendant's goods, 
 which must be contributed for in general av- 
 erage. Leuiiii v. Williams, 1 Hall (N. Y.), 480. 
 
 12. If, in the course of a voyage, the ship is 
 damaged by winds and storms, and she seeks 
 a port to refit, the expenses consequent upon 
 putting in, including wages and provisions 
 for crew during the detention, are general av- 
 erage. Padelford v. Boardman, 4 Mass., 548. 
 
 t S. Vessel accideatally stranded in course of 
 voyage, but got oflF with cargo on board. Held, 
 expenses incurred were general average. Bed- 
 ford Commercial Ins. Co. v. Parker, 2 Pick., 1. 
 
 14. Repairs made abroad, strictly necessary 
 to enable ship to return, which are temporary 
 and of no permanent value to the ship, are 
 general average. Brookes v. Oriental Ins. Co., 
 7 Pick., 259. 
 
 15. A vessel at anchor, in imminent peril 
 of sinking at her anchors, or that she will 
 part her cables and drive on shore ; if her ca- 
 bles are cut and she is voluntarily run on shore, 
 as the best expedient for saving the lives and 
 property at risk, the expense of getting her off 
 is general average, and it is immaterial wheth- 
 er the cargo is again taken on board or the 
 voyage resumed. Reynolds d. Ocean Ins. Co., 
 22 Pick., 191. 
 
 16. The insurers on ship are liable for gen- 
 eral average, however small. CKles v. Eagle 
 Ins. Co., 2 Met., 140. And the hire of laborers 
 and others employed to assist in getting the 
 vessel off, also the loss on outfits sold to pro- 
 cure money to pay for assistance, are charges 
 in general average. Ibid. 
 
 17. The distinguishing character of a gen- 
 eral average loss is, that it is voluntarily in- 
 curred for the benefit of all, and the cutting 
 away of the masts, with consequent damage, 
 are general average charges, notwithstanding 
 she was in ballast and there was neither cargo 
 nor freight to contribute. Oreely r>. Tremont 
 Ins. Co., 9 Cush., 415. 
 
 1 8. Expenses for provisions and wages of 
 master and crew during an embargo are gen- 
 eral average. Insurance Company qf North 
 America e. Jortes, 2 Binn., 547. 
 
 19. In a violent gale, she carried away her 
 small bower and parted the cable of the other. 
 The master attempted to run her ashore ; she 
 struck on a shoal, mizzen and mainmast were 
 cut away, and she fetched up broadside on the 
 beach. HM, the damage to the hull sus- 
 tained on the breakers, as well as all the ex- 
 
609 
 
 GENERAL AVERAGE. 
 
 610 
 
 What are charges in. 
 
 penses which followed, were general average. 
 Stmt V. Chtrney, i Binn., 513. 
 
 20. Cahlcs, anchors and masts sacrificed 
 for the common benefit, while vessel was on a 
 reef, are charges in general average, notwith- 
 standing the sacrifice was ineflTectual to save 
 her from total loss. Walker v. United States 
 Ins. Co., 11 S. & R, 61. 
 
 21. Seamen's wages, and provisions for 
 thom, are items of charge in general average, 
 when the case is a proper one for general av- 
 erage (overruling Perry v. Ohio Ins. Co., 5 
 Ohio, 305; Gazzam v. Cincinnati Ins. Co., 6 
 Ohio, 71 ; Webb c. Protection Ins. Co., id., 456). 
 Barker v. Baltimore and Ohio B. S., 22 Ohio 
 St., 45. 
 
 22. Tlie expenses of the crew, for wages 
 and provisions, from the time she put away for 
 the port to refit, during her detention at port 
 while the repairs were being made, and every 
 other expense necessarily incurred during the 
 detention for the benefit of all concerned, are 
 subjects of general average, ffanse v. ilTew Or- 
 leans Marine €md Fire Ins. Go^ 10 La. (O. S.), 1. 
 
 23. She was captured. The plaintiflF paid 
 the expenses incurred by the capture, for the 
 benefit of all concerned in vessel and cargo. 
 EeJd, he was entitled to recover from the par- 
 ties interested. Kern «. droning, 1 Brev., 506. 
 
 84. The ship was obliged to go into port 
 for the benefit of all concerned. Held, the 
 wages and victuals of the crew, firom the day 
 it was resolved to seek a port to refit, till the 
 day of her departure from it, with all charges 
 of loading, unloading, anchorage, pilotage 
 and every other expense incurred by the neces- 
 sity, are general average. Ba Gosta v. Neuyn- 
 ham, 2 Term, 407. 
 
 25. She was bound from Liverpool for a 
 foreign port, there to load a return cargo, 
 freight payable on delivery of it at home. 
 She took in the outward cargo and sailed, but 
 was driven aground near the port of sailing. 
 The cargo was taken out, carried back to Liv- 
 erpool and warehoused. She was got ofiF, 
 taken back to Liverpool, repaired, received 
 the cargo and proceeded on the voyage. Hdd, 
 the saving of ship and cargo was one contin- 
 ued transaction, hence the expenses were gen- 
 eral average, to which ship, freight and cargo 
 must contribute. Moran «. JoTies, 7 El. & Bl., 
 52.1; 3 Jur. (N. 8.), 663; 26 L. J. Q. B., 187. 
 
 26. On gold in bars, on board the ship 
 Dutchman. The day alter the policy was 
 
 30 
 
 made, she was transferred from her English 
 owners tu a Russian citizen, of which neither 
 party had any notice She was stranded in 
 Turkish territory, within one hundred miles 
 of Constantinople, and within the jurisdiction 
 of that port The gold was taken out and de- 
 posited with the Russian consul ; and to enable 
 the consignees to obtain possession of it, they 
 were compellecl to deposit twenty per cent, of 
 its value, to answer average or salvage ex- 
 penses. It was admitted that the Russian 
 consul or court had authority to determine all 
 matters pertaining to ship and cargo ; and that 
 court did decide that this was a.case of sal- 
 vage and not of average, to the expenses of 
 which the cargo saved must contribute, in- 
 cluding the gold landed, before any operations 
 were commenced to save the cargo. A large 
 amount of the salvage was decreed against the 
 gold, which decree became final, because no 
 appeal was lodged within eight days. Had 
 the ship retained her English character, the 
 adjustment would have been according to the 
 law of England. Held, the loss was by perils 
 of the sea, for the money had been expended 
 to get possession of property placed in jeop- 
 ardy by a peril of the sea; that there was no 
 warranty that the ship should retain her na^ 
 tional character, hence the change of it was 
 no defense to Uie action. Bent «. Smith, 4 L. 
 R. Q. B., 414. 
 
 27. She sailed with a sufBcient stock of 
 coals for an ordinary voyage, encountered bad 
 weather, and was obliged to set the donkey 
 engine to work to keep her free. Without this 
 engine or ten additional men, she would not 
 have been seaworthy. The engine was kept 
 constantly at work, and the stock of coals 
 thereby became so greatly reduced that it be- 
 came necessary to consume some of her spare 
 spars and other wood, part of the ship's store.s. 
 She obtained coal from a passing vessel, put 
 into a port of distress for a further supply, and 
 upon reaching the Thames, the engine broke 
 down from overwork, while there was suffi- 
 cient fuel on board to keep it at work. 
 There was no seriojis danger in consequence 
 of the leak. Held, the spars and wood were 
 sacrificed for the general benefit, and were to 
 be contributed for in general average ; that the 
 coal and overwork of the donkey engine were 
 not. Harrison «. Bank of Australasia, 7 L. K. 
 Ex., 39; 41 L. J. Ex., 36; 20 W. R., 385; 35 L. 
 T. (N. S.), 944. 
 
 305 
 
611 
 
 GENERAL AVERAGE. 
 
 612 
 
 What are not charges in. 
 
 II. "What aee not chabges in. 
 
 1. Where a moiety in quantity and value of 
 the cargo is sold to relieve it from captors, the 
 loss is not general average. Varidenheuvel v. 
 United Ins. Go., 1 Johns., 406. 
 
 2. Where a ship's cables are cut for the pur- 
 pose of running her ashore tb save life and 
 property, if she is lost, it is not a case for gen- 
 eral average, though the cargo is saved, and it 
 is not bound to contribute for the loss of the 
 ship. Bradhurst v. Columbian Ins. Co., 9 
 Johns., 9. 
 
 3. On ship valued at $25,000, at and from 
 New York to Liverpool, and thence to a port 
 of discharge in the United States. On the 
 voyage out she sustained great injury, and was 
 obliged, after she had delivered her cargo at 
 Liverpool, to go into dock and repair, and was 
 detained from December 1st to March 24th, 
 for that purpose. While so detained, expenses 
 were incurred for wages and provisions of 
 master and crew. Held, the insurer on ship 
 was not liable for them, and that they were 
 not charges in general average. Dunham o. 
 Gommereial Ins. Co., 11 Johns., 315. 
 
 4. Repairs to a ship which seeks a port to 
 refit may be cither general average or partic- 
 ular average on sliip ; they are not general av- 
 erage unless caused by jettison. Padelfordv. 
 Boardman, 4 Mass., 548. 
 
 5. Commissions on repairs and expense of 
 survey made in a home port are not a charge 
 against the insurers. Brookes v. Oriental Ins. 
 Co., 7 Pick., 259. 
 
 6. She fell in with a ship in distress about 
 to sink, and in order to make room for the 
 passengers and crew, and while they were be- 
 ing taken in, a part of the cargo was thrown 
 overboard. Held, the destruction of a part of 
 the cargo was not a charge against the insur- 
 ers of ship or cargo. Daimey v. New England 
 Mutual Marine Ins. Co., 14 Allen, 300. 
 
 7. If the loss of the vessel has become in- 
 evitable, in consequence of the peril then 
 present, and the acts of the crew are intended 
 to alleviate instead of avoiding that conse- 
 quence, they are not in the nature of sacrifice; 
 therefore, if a vessel on a lee shore, in a heavy 
 gale, must go ashore at all events, but the 
 crew, for the purpose of saving their lives, 
 slip the anchors, put her before the wind to 
 run her ashore, and she is run ashore and lost, 
 
 306 
 
 it is not a loss for the preservation of prop- 
 erty, and gives no claim for general average, 
 Meech ». Robinson, 4 Whart., 360. 
 
 8. General ship, freighted by several mer- 
 chants, parted with convoy in a gale, was 
 attacked by an American privateer, which she 
 beat oflF, with loss of one man killed and four 
 wounded. Her hull and rigging were dam- 
 aged in the conflict, but she reached port and 
 delivered her cargo safely. Hdd, it was the 
 duty of the sailors to defend tlie ship in pro- 
 portion to their means, and within measures 
 of discretion; hence , the expenses of repair- 
 ing her and curing the sailors were not 
 charges in general average. Taylor v. Curtis 
 Holt N. P., 192; 2 Marsh., 819; 6 Taunt, 608; 
 4 Camp., 387. 
 
 9. A. shipped certain copper ore on B.'s ves- 
 sel, to be carried to Swansea. She encountered 
 a storm, sustained damage, and for the preser- 
 vation of ship and cargo, and to enable her to 
 complete the voyage, she put back for repairs' 
 and was repaired, the cost of which exceeded 
 the value of the ship when repaired. The 
 master was unable to raise money to pay for 
 them, except by selling a portion of the cop- 
 per ore, which he did, and carried the balance 
 to the port of destination. The difference be- 
 tween the proceeds at the port of distress, and 
 what the ore would have brought at the port 
 of destination, exceeded the value of the ship 
 when repaired. Held, not general average 
 HaUett V. Wigram, 9 C. B., 580; 19 L. J. C. P." 
 281. 
 
 10. In order to escape from a privateer, she 
 put on an unusual press of sail, in conse- 
 quence of which she was much strained, her 
 seams opened, and the main-mast-head car- 
 ried away; but she succeeded in her escape. 
 Held, particular average on ship, but no claim 
 in general average. Covington v. Roberts, 5 B. 
 & P., 878. 
 
 1 1. She was bound from London to Lisbon. 
 In sight of the English coast, the bowsprit 
 bitts gave way; she was then beating in a 
 heavy and dangerous sea. She put off and 
 came to anchor in Cowes roads that day, 
 where she remained four days ; repairs being 
 completed, she sailed on the voyage, but re- 
 turned the next day, being again driven back 
 by heavy weather, where she remained for two 
 weeks. Held, the wages of the master and 
 crew, the provisions consumed by them, the 
 repairs to the bowsprit bitts, and three coils 
 
613 
 
 GENERAL AVERAGE. 
 
 614 
 
 What shall not be contributed for — What must contribute. 
 
 of rope used in that respect, were not, nor 
 were any of them, charges in general average. 
 Power V. Wfiitmore, 4 Mau. & Sel., 141. 
 
 12. "Warranted free from average, except 
 general, or the sliip be stranded." She met 
 with very heavy weather, and made consid- 
 erable water. In pumping, wheat to the value 
 of £75 was pumped out Held, an average 
 loss only, for which insurer was not liable. 
 HiUs e. London Ast. Corp., 5 Mee. <fc W., 569 ; 9 
 L. J. (K S.), Ex., 25. 
 
 1 3. She sailed from Liverpool for St. Johns, 
 Kewfoundland, ran ashore on the coast of Ire- 
 land, and in order to get her off, it became 
 necessary to discharge the whole of the cargo, 
 which was put in store at Dublin. A chan- 
 nel was dug, and a steam tug employed to get 
 her off. She was taken to Liverpool for re- 
 pairs. The cargo was forwarded to its desti- 
 nation in another vessel, ffeld, all expenses 
 incurred for the purpose of getting the ship 
 off, after the cargo was-in safety, were a charge 
 against the ship alone, for which the insurer 
 of ship must respond, as in cases of particu- 
 lar average; that they were not charges in 
 general average. Job v. Langton, 6 El. & Bl., 
 778; 8. C, 3 Jur. (N. S.), 109; 26 L. J. Q. B., 
 97. 
 
 14. Ship laden with cargo was driven ashore 
 before she left port, October 5th ; cargo was 
 landed and warehoused in safety the 19th, 
 and remained under the control of the ship 
 owner. An unsuccessful attempt was made 
 to float her off up to November 24th, but was 
 renewed December 31st with success. She 
 was taken into port and repaired, took in the 
 cargo and proceeded to destination. Hdd, 
 the expense of floating her off was not general 
 average; hence, the ownei-s of cargo were 
 not bound to contribute to it WaUhew «. 
 Mavrojani, 5 L. K. Ex., 116; 22 L. T. (N. S.), 
 310. 
 
 15. Afire broke out in the forehold of a 
 ship lying at anchor, and all efforts to extin- 
 guish it by throwing water down the hatch- 
 ways and upon the cargo were unsuccessful. 
 A hole was cut in the vessel's side, and her fore 
 compartment filled with water, by which the 
 fire was extinguished. Had not this been 
 done, the cargo would have been destroyed 
 and the ship seriously damaged, if not totally 
 destroyed. A part of the cargo, damaged by 
 water, was shipped by bills of lading; "aver- 
 age, if any, to be adjusted according to British 
 
 custom." Held, the loss, according to the gen 
 eral law of England, was a subject of a general 
 average contribution; but according to cus- 
 tom, British average adjusters treat a loss 
 occasioned by water in the manner above de- 
 scribed, as special and not general ; therefore, 
 it was held that the parties, by their agree- 
 ment, made that custom a part of their con- 
 tract; hence, there could be no recovery for 
 contribution in general average as to it. Stew- 
 art o. West Indian and Pacific Steamship Go., 
 42 L. J. Q. B., 84; 21 W. R., 381 ; 27 L. T. (N. 
 S.),820; affirmed, 8 L. R. Q. B.,362; 21 W.R., 
 953; 28 L. T. (N. S.), 742. 
 
 III. What shaul not be conteibuted 
 
 FOE. 
 
 Goods on the deck of a propeller were on 
 fire, which placed vessel and cargo in immi- 
 nent peril. The goods were thrown overboard, 
 and the vessel and cargo thereby saved. Held, 
 there was no right to contribution in general 
 average for the goods thrown overboard, be- 
 cause, by reason of the fire, their destruction 
 was certain, and they were, therefore, of no 
 value when jettisoned; for the same reason, 
 they could not be regarded as voluntarily sac- 
 rificed, or as selected for that purpose, since 
 their own condition made it necessary that they 
 should at once be thrown overboard. Slater v. 
 Hayward Rubber Co., 26 Conn., 128. 
 
 IV. "What must conteibute. 
 
 1. On freight from Philadelphia to Batavia, 
 thence to Philadelphia. On her return, she 
 was captured by a French privateer, and 
 ordered to Guadaloupe. She was- afterwards 
 recaptured by a British man-of-war, cvried to 
 Martinique, and libeled for salvage. One- 
 half of the cargo was specifically delivered, 
 and $2,700 fixed for the salvage on ship. 
 Held, the insurers on freight were liable for 
 a general average for contribution against 
 freight. Sansom v. Ball, 4 Dall., 459. 
 
 2. A vessel, having on board a large amount 
 of specie, was stranded and ice-bound in a 
 situation of imminent peril; the specie was 
 carried over the ice by land to point of destin- 
 ation, and the vessel ultimately reached her 
 port with remainder of cargo. Held, the 
 owners of the specie were bound to contribute 
 for general average expenses incurred after 
 
 307 
 
615 
 
 GENERAL AVERAGE. 
 
 616 
 
 What must contribute. 
 
 the specie left the vessel. Bevan v. Bank of 
 United States, 4 Whart., 301. 
 
 3. Certain clothing, the property of the 
 United States, invoiced at $7,320, was laden at 
 Boston for New York. The vessel went 
 ashore on Blocls Island, and much expense 
 was incurred in saving property. They were 
 carried bacli to Boston ; but tlie store keeper 
 of the United States refused to sign any bond, 
 or to secure the payment of general average 
 contribution. Held, the government of the 
 United States had no right to be exempted 
 from the ordinary maritime lien, and tlierefore 
 the plaintiff could not maintain trover for tlie 
 goods. United States v. Wilder, 3 Sumn., 808. 
 
 4. The policy gave general permission to 
 labor for the safety of the property without 
 prejudice, etc. Held, insurer was liable to a 
 general average for expenses incurred in at- 
 tempts to recover the property. Bordes v. 
 Hallet, 1 Caines, 444. 
 
 5. On outfits, stipulated : " One-fourth of 
 the catching should replace the outfits con- 
 sumed, except that catching, shipped from 
 the Cape de Verds or this side, should be at 
 the risk of the insured, without diminution of 
 value." There was a large quantity of blubber, 
 equal to 6.i or 70 barrels of sperm oil in the 
 blubber room, when she encountered a violent 
 hurricane. The shifting boards gave way and 
 all the blubber rolled to leeward, and to pre- 
 vent her from sinking, it was thrown over- 
 board, and some of the masts cut away. She 
 put into the Mauritius for repairs. Held, the 
 construction of the word " outfits," in the ab- 
 sence of any technical meaning given it by 
 usage, was a matter of law for the court to de- 
 cide; blubber, or pieces of the flesh of the 
 whale, on deck or stored under deck, were 
 catchings, for they were things caught, in the 
 possession, custody, power and dominion of 
 the party, with a present capacity to use them 
 for his own purposes; the blubber was enti- 
 tled to and liable for contribution in cases of 
 jettison, and constituted a claim for general 
 average. Sogers v. Maehanics Ins. Co., 1 
 Story, 603 ; 3 id., 173. 
 
 6. She sailed from New Orleans to Havre, 
 with a cargo of cotton and $30,853 specie ; was 
 struck by lightning in the Gulf stream, and 
 found to be on fire in the hold. After at- 
 temping, without success, to extinguish it, a 
 vessel in sight was signaled, passengers and 
 baggage were transferred, and she was en- 
 
 308 
 
 gaged to keep company. At daylight the 
 fire appeared to be gaining. The master 
 concluded to make a port of distress, the 
 specie was transhipped to the other vessel, 
 and both bore away for Charleston, where 
 they arrived in three days. The fire did not 
 appear to decrease. Large quantities of 
 water were thrown into the ship at Charleston, 
 till she filled and sank to the upper deck. 
 The cargo was sold and the voyage aband- 
 oned. The specie was taken from the other 
 vessel and deposited in bank. Held, tha 
 specie was liable to contribute in general 
 average for the services of the other vessel, 
 the expenses at Charleston in sinking and 
 raising the vessel, for the damage to and ex- 
 penses incurred for the cargo. Dissenting, 
 Comstock and Clerke, J J. Nelson v. Belmont, 
 21 N. Y., 36 ; s. c, 5 Duer, 310. 
 
 7. Cargo owner saved a partof it at his own 
 expense. Insurers of ship afterwards em- 
 ployed men, who tried, without success, to get 
 ship off. At same time men employed by 
 cargo owner saved more cargo. The two par- 
 ties acted separately, though assisting each 
 other at times. Afterwards in.surers contracted 
 to pay 13,600 to D. if he would get ship off, 
 and owner agreed that insurers of ship might 
 offer D. $600 to save cargo, provided ship 
 should not be saved. D. got her off with 
 155 tons of cargo. Held, the 155 tons must 
 contribute in general average to the $2,600; 
 that the rest of the cargo should not contri"- 
 bute ; that the aid rendered by the owner's 
 men to the insurer's men, might be set off pro 
 tanto against claim for assisting to save the 
 other part of the cargo. Bedford Commercial 
 Ins. Co. V. Parker, 3 Pick., 1. 
 
 8, On slaves, Richmond to New Orleans, 
 " Solely against loss by drowning in conse- 
 quence of stranding or shipwreck otherwise of 
 the vessel, insurers being warranted against 
 all other risks, and especially against mutiny, 
 elopement, natural death, and the interference 
 of foreign governments on these subjects." 
 She was stranded near Abaco, and a portion 
 of the cargo was jettisoned for the purpose of 
 saving the crew, the slaves, and the remainder 
 of the cargo. Held, the insurers of. the slaves 
 were liable for their contribution in general 
 average, for the presumption is, that had the 
 jettison not been made, the cargo as well as 
 the slaves would have perished. Hunter v. 
 General Mut. Ins. Co., 11 La. An., 139. 
 
617 
 
 GENERAL AVERAGE. 
 
 618 
 
 What shall not contribute — Contributing yalues. 
 
 9. There was a jettison amounting to $3,290, 
 and tlie defendant had twelve slaves on board, 
 worth |6,000. Beld, the owner was bound to 
 contribute for them in general average. Ba- 
 i-elli V. Hagan, 18 La. (O. S.), 580. 
 
 10. Afler she was captured by a French pri- 
 vateer, the crew threw overboard guns, two 
 anchors, two cables, and other stores, from the 
 middle deck, for the preservation of the ship 
 and cargo. Beld, the cargo was bound to con- 
 tribute in general average. Price v. JVoftte, 
 4 Taunt, 123. 
 
 11. She was chartered, London to East In- 
 dies, to deliver outward and return with home 
 cargo into the Thames, citarterers to pay 
 freight for every ton of goods that should be 
 brought to London, so much per ton. Ship 
 was insured for the voyage out; on it she in- 
 curred an average loss, was repaired and rc- 
 tnrned to London with home cargo. There 
 were also expenses in general average in- 
 curred. Seld, the freight was bound to contri- 
 bute in general average. WiUianis v. London 
 Ass. Co., 1 Mau. & Sel., 318. 
 
 12. Ship and cargo were insured, but for 
 less ihan their value. She was wrecked, and 
 expenses were incurred exceeding the value of 
 what was saved. Held, owners of ship and 
 cargo must contribute to the expense pro rata, 
 for the amount uninsured, 1>ut the freight 
 must p-iy nothing, for none was earned. Dal- 
 rympU o. Johnston, Faculty Dec, 1775 to 1777, 
 p. 477. 
 
 V. What shall not contetbute. 
 
 Ship took a number of passengers for the 
 defendants, who shipped provisions and 
 victualing stores. Held, that only such stores 
 as are termed mereei, are liable to contribute 
 for average. Merces has never been held to 
 extend to provisions, but includes only the 
 cargo put on board for the puriioses of com- 
 merce. Brown v. Stapyleion, 4 Bing., 119. 
 
 YI. CoNTEiBTrrrNG values. 
 
 1. She was bound to Madeira, but driven 
 into Philadelphia, where the cargo was found 
 so badly damaged that the voyage was broken 
 up as not worth pursuing. Held, in settling 
 the general average, the fi^ight actually earned, 
 "wd nof what would have been due at Madeira, 
 
 was the contributory value of freight. Mag- 
 grath o. Ghureh, 1 Caines, 195. 
 
 2. Tlie contributory value upon a ship sold 
 at a foreign port is the amount she brings, 
 bonajide. Bell v. Columbian Ins. Co.,2 Johns., 
 98. 
 
 3. Freight was paid in advance. General 
 average expenses were incurred, but the vessel 
 was lost on the voyage. None of the cargo 
 was ever delivered at the point of destination. 
 Held, freight was not bound to contribute in 
 general average, for the general rule is, in the 
 absence of special agreement to the contrary, 
 freight paid in advance shall be recovered 
 back, if the cargo is not delivered at the point 
 of destination (citing Phelps b. Williamson, 5 
 Siindf., 578; Ogden c. N. T. Mut Ins. Co., 
 4 Bos., 447; Hall v. Jansen, 4 El. & Bl., 500). 
 Hathaway v. Sun Mut. Ins. Co., 8 Bos., 33. 
 
 4. The values and property to contribute in 
 general average ai^e the net sales of the cargo, 
 deducting the customary freight; the net salv- 
 age of the vessel and freight, deducting what 
 was paid the other ship to carry the cargo 
 forward. Dodge «. Union Marine Ins. Co., 
 17 Mass., 471. 
 
 5. The only question was, whether for the 
 purposes of contribution in general average, 
 the ship must be estimated at her actual value, 
 ascertained by appraisement, or at the valua- 
 tion agreed upon in the policy. Held, the 
 actual value is that which should govern the 
 rights of the parties. Meeker v. Klemm, 11 La. 
 An., 104. 
 
 6. Where there is an average loss, the 
 computation must be made on the real in- 
 terest on board. Not on the valuation men- 
 tioned in the policy. Le Crag v. Hughes, 3 
 Doug., 81. 
 
 7. She sailed with 3,000 tons of salt, ground- 
 ed on the Irish coast, threw overboard one- 
 half the cargo, was got off and brought to 
 Liverpool, where all, except about 100 tons 
 was found unfit to be forwarded, and nearly 
 worthless. The freighter had paid £1,250 in 
 advance for freight. Held, in cases of gen- 
 eral average, the things saved contribute, 
 not according to the prime cost, but accord- 
 ing to the price at which they may be sold at 
 the time of making tlie average. If, however, 
 after jettison, the remainder of the goods ai'c 
 totally lost, so that no benefit accrues to tho 
 owners of the property saved, no contributioa 
 can be claimed. In this case, tho value must 
 
 809 
 
619 
 
 GENERAL AVERAGE. 
 
 620 
 
 Adjustment of. 
 
 be determined by the value at Liverpool ; tliat 
 is to say, the goods jettisoned to be estimated 
 at their Liverpool value, and this was to be 
 ascertained by determining whether they were 
 in such a condition that they would, in all 
 probability, have arrived undamaged at the 
 place of adjustment; that as it was almost a 
 matter of certainty, the salt jettisoned could 
 not have reached the port of adjustment in a 
 sound stale, its contribuory value was what it 
 would have been worth had it arrived in an 
 unsound condition, instead of being jettisoned 
 (citing 1 Arnold on Ins, 3d ed, vol. 3, 809), 
 and that no attention was to be given to the 
 fact that the freighter had paid freight in ad- 
 vance. Fletcher r>. Alexander, 3 L. R. C. P., 
 375; 37 L. J. C. P., 193; 18 L. T. (N. S.), 433; 
 16 W. R., 803. 
 
 YII. Adjustment of. 
 
 (a) When concluawe. 
 
 I. " On rye, corn, etc., warranted free from 
 average unless general, or the ship be strand- 
 ed." In the margin the following words were 
 found : " To pay general average as per foreign 
 statement, if so made up. Warranted free 
 from particular average, unless the ship or 
 craft be stranded, sunk, or burned; but this 
 warranty not to exonerate the underwriters 
 from liability for special charges for mats, 
 warehousing, forwarding or otherwise, if 
 incurred, as well as partial loss arising 
 from transhipment." She encountered heavy 
 weather, and was compelled to put into two 
 ports for repairs, and in order to obtain 
 funds to put her in a condition to con- 
 tinue the voyage, the master hypothecated 
 ship, freight and cargo, for £3,818 10s. 5d. 
 Arrived at the port of destination (Bremen), 
 the consignees of cargo discharged the obli- 
 gation in order to obtain possession of their 
 property. The average was apportioned upon 
 cargo, £1,088 14s. lid., and upon ship and 
 freight, £1,185 lis. The ship was not able to 
 pay her proportion, and she was sold by order 
 of court at Bremen for £729 10s. 2d., leaving a 
 balance of £663 2s. lOd. A further or supple- 
 mental statement was made by the average- 
 stater, in which the deficit was stated to be 
 the amount the cargo had to pay as additional 
 bottomry debt, to the holders of the bonds. It 
 
 was admitted by both parties, that the aver- 
 age statement was correctly made by the law 
 of Breman. Held, insurers of cargo were 
 bound by the average statement, and were, 
 therefore, liable to insured for the whole de- 
 ficit. Harris v. Scaramanga, 7 L. R. C. P., 
 481 ; 41 L. J. C. P., 170; 20 W. R., 777; 26 L. 
 T. (N. S.), 797. 
 
 2. " On wheat, warranted free from average 
 unless general. General average as per for- 
 eign statement." She put into Constantinople. 
 The consular court there directed a survey. 
 One fifth of the wheat had been damaged. 
 The surveyors recommended the voyage 
 should end at Con.stantinoi)le; that the dam- 
 aged wheat should be sold there, and the un- 
 damaged wheat transhipped to port of desti- 
 nation. An order of court was accordingly 
 made, and an adjustment of average was 
 also made by order of court. The dam- 
 age the wheat had sustained was there 
 treated as general average ; but under the law 
 of England, it would not have been general 
 average. Held, insurers were bound by the 
 foreign average statement. Mavro -c. Oeerni 
 Marine Ins. Co., 9 L. R. C. P., 595; 43 L. J. C. 
 P., 339; 31 L. T. (N. 8.), 186; affirmed 10 L. 
 R. 0. P., 414. 
 
 3. " On sugars from Java to Holland, to 
 cover only the risks excepted by the clause, 
 ' warranted free from particular average,' un- 
 less the vessel be stranded, sunk or burned ; to 
 pay all claims and losses on Dutch terms, and 
 according to statement made up by official 
 dispaeheur in Holland." There was a policy 
 on the same goods effected in Holland, of 
 which these insurers had no notice, except 
 that which could be implied from the risks 
 taken. She took the ground, and the cargo 
 sustained damage. According to Dutch law, 
 it would not have amounted to stranding, but 
 it would have been held in England to be a 
 stranding. A Dutch diapacJieur stated the 
 particular average, which was made according 
 to the facts and governed by the law of Hol- 
 land. Held, a contract to pay all claims and 
 losses according to Dutch law; that if the 
 vessel were stranded, sunk or burned, and ac- 
 cording to Dutch law a claim for particular 
 average arose under that law, the insurers 
 were bound to pay it. Hendricks v. Australa, 
 sian Ins. Co., 9 L. R. C. P., 460; 43 L. J. C. P. 
 188; 23 W. R., 947; 30 L. T. (N. 8.), 419. 
 
 310 
 
621 
 
 GENERAL AVERAGE —GIFT. 
 
 622 
 
 Atijustment of, etc. 
 
 (b) Wh&n not conclusive. 
 
 4. She was bouod from Richmond to Bre- 
 men, hut put into Cuxhayen for the preserva- 
 tion of ship and cargo, at which place an ad- 
 justment of general average was made. The 
 adjuster took no notice of the expense for 
 wages and victualing the crew while she was 
 delayed, aud this action was brought to re- 
 cover it. Held, the adjustment was conclusive 
 between the consignees of cargo and ship 
 owner; but it was not conclusive between in- 
 sured and insurers of ship, for their rights 
 were to be measured by the actual amount of 
 the ship owner's loss, in order that he might 
 receive exact indemnity ; that he was bound 
 to account to insurer for what he had received 
 under the foreign adjustment, and was entitled 
 to recover any balance of his loss, to be de- 
 termined by the law of the place where the 
 contract was made; by which wages and 
 provisions of crew, from the time tlie ves- 
 sel put away for a port of distress, until she 
 sailed on her voyage again,^ were a charge in 
 gener&l average, for which the insurers of ship 
 must contribute their proper proportion. 
 Thornton v. United State* In*. Co^ 12 Me., 150. 
 
 (c) What law governs. 
 
 6. A contract of insurance, made in Kew 
 York, upon which a claim arises, is to be ad- 
 justed according to the principles and usages 
 of the place where the contract was made; 
 whether the loss be general or particular aver- 
 age, it must be governed by the law of New 
 York. Lenox e. United Ins. Co., 3 Johns. C, 
 178. 
 
 6. The adjustment of general average must 
 be governed by the law of the place where the 
 detention takes place. Insurarux Go. v. Harrit, 
 3 Phila., 136. 
 
 7. She put to sea and was obliged to return 
 to Charleston for repairs. She sailed again, 
 and arrived at Philadelphia, her port of des- 
 tination. By the custom of Philadelphia, 
 wages and provisions of crew were properly a 
 cbvge in general average. The policy was 
 to He settled according to the laws and usages 
 </ the ci^' of London, which excluded from 
 
 general average, wages and provisions of crew 
 while the vessel should be detained for repairs ; 
 and the same custom prevailed at Charleston. 
 Held, insurers were not liable in general aver- 
 age for expense of wages and provisions for 
 crew, while she was detained making repaira. 
 Union Bank v. Union Ins. Co., Dud. Ap. ^S. 
 C). 171. 
 
 8. The goods insured were compelled to 
 contribute in an adjustment of general aver- 
 age at tlie port of destination, for certain losses 
 sustained by the ship on her voyage. Held, if 
 the general average was not adjusted in ac- 
 cordance with the laws of the country where 
 the contract of insurance was made, it had no 
 binding efifect upon insurer. Shiff v. Louia^ 
 iana State Ins. Co., 18 Mart. (La.), 628. 
 
 9. She was bound on a voyage from London 
 to Lisbon. Held, the insurers had a right to 
 require the general average to be settled ac- 
 cording to the law of Eugland, where the con- 
 tract of insurance was made, unless, by a 
 usage adopted in England, the rules of settle, 
 ment at Lisbon were to be applied to policies 
 made in England. Power v. Whitmore, 4 
 Mau. & Sel., 141. 
 
 10. The place where the general aver.-ige 
 should be adjusted is that of the ship's de.stin- 
 ation, or where she delivers her cargo. The 
 master is not obliged to part with possession 
 of the goods until the sum contributable in 
 respect of them shall be paid or secured to 
 his satisfaction; and the adjustment is to be 
 governed according to the laws of the country 
 in which it is made. Simonds v. White, 2 L. J. 
 K B., 159. 
 
 GIFT. 
 
 (See BsqinsTs.) 
 
 The intestate had engaged to marry the de- 
 fendant, and she gave the policy to him on 
 her death bed. The jury found tbat it was a 
 gift Held, there was no distinction between 
 a policy of insurance and a bond or mortgage ; 
 all were the subject of a donatio mortis causa. 
 Witt «. Amis, 7 Jut. (N. S.), 499; 4 L. T. (N. 
 S.), 383. r 
 
 311 
 
623 
 
 GOLD COIN — ILLICIT TRADE. 
 
 624 
 
 Insurer is not liable for, etc. — What is not a breach of the wan-anty. 
 
 GOLD COIN. • 
 
 1. Stipulated: " The damages sliall be pay- 
 able in gold coin." Held, judgment must be 
 rendered in gold coin. Warren «. Franklin 
 Ins. Co., 104 Mass., 518. 
 
 2. Insurers accepted the premium in gold, 
 and agreed to pay losses in gold. Held, the 
 dividends due upon the policies were not pay- 
 able in gold, Luling v. Atlantic Mut. Ins. Co., 
 51 N. T., 207; 8. c, 45 Barb., 510; 50 id., 520; 
 30 How. Pr., 69. 
 
 GOODS IN TRUST. 
 
 Tbttbt on ComnsBioii ob CoNsisiriiBiiT.) 
 
 GUNPOWDER. 
 
 %snsa ASD STomHa; Befcgnaiit Stifoi-a- 
 Tiona.) 
 
 ILLEGAL CONTRACT. 
 
 (See CoiiTSA.aT.) 
 
 ILLEGAL VOYAGE. 
 
 (See Illicit Tiusx.) 
 
 ILLICIT TRADE. 
 
 I. Inbukek is not liable fob, unless 
 
 K18K EXPBES8LT TAKEN. 
 
 II. What is not a breach of the war- 
 
 KANTT. 
 
 III. What is hot proof of. 
 
 IV. What is illicit trade. 
 V. Construction. 
 
 I. Imsueee is not liable fob, unless 
 
 BISK EXPEES8LY TAKEN. 
 
 The application for insurance stated, " She 
 is bound for Kingston, Jamaica; if not allowed 
 to sell there, will proceed to Cuba." The pol- 
 312 
 
 icy delivered was silent upon this subject. 
 She sailed for Kingston, expecting to find that 
 port open to American vessels. Neither party 
 contemplated illicit trade ; but it was closed, 
 and she was seized and condemned for illicit 
 trade. Held, the underwriter is not liable for 
 loss arising from illicit trade, unless the pol- 
 icy be written with a full knowledge that the 
 object of voyage was illicit trade; that the 
 underwriter cannot be presumed to undertake 
 risks occasioned by the insured or his agent's 
 violation of law, notwithstanding the policy 
 is in general terms ; that when both parties 
 believed that the voyage was lawful, notice to 
 the insurer at the time the policy was made 
 that the vessel was bound on the voyage did 
 not raise any presumption that the insurer un- 
 dertook the risk of illicit trade. Andreas t. 
 Essex Vire and Marine Ins. Co., 3 Mason, 6. 
 
 II. What is not a breach of the 
 
 WAEBANTY. 
 
 1 . Two policies upon the cargo of the brig, 
 antine Aurora from New York to one or two 
 Portuguese ports on the coast of Brazil, at and 
 from thence to New York; stipulated: "In- 
 surers do not take the risk of illicit trade with 
 the Portuguese." She cleared for the Cape of 
 Good Hope. Insured was supercargo. She 
 arrived at Rio and was permitted to sell some 
 of the cargo. She sailed thence for Para on 
 the coast of Brazil, and came tn anchor about 
 five leagues from land. After she left Rio, her 
 destination was kept a secret, and it was as- 
 serted that she anchored oif Para for the pur- 
 pose of getting wood and water, which were 
 needed. Insured went ashore in a boat, assert- 
 ing that he left her for the purpose of procuring 
 a pilot to take her up for wood and water and 
 to sell the cargo, if permitted. He was ar- 
 rested and imprisoned, and she was taken by 
 a body of armed men and carried into Para. 
 Trade with Para was prohibited and ship and 
 cargo were condemned by the governor of 
 Para, on the ground of illicit trade. Sdd, a 
 seizure not justifiable under the laws and 
 regulations established by the crown of 
 Portugal, for the restriction of foreign com- 
 merce with its dependencies, was not with- 
 in the exception; but that every seizure so 
 justifiable, was within it, that, these laws 
 and regulations must be proved like other 
 facts before they could be received in a 
 
625 
 
 ILLICIT TRADE. 
 
 626 
 
 What is not a breach of the warranty. 
 
 court of justice. Church v. Hubhart, 3 Cran., 
 165. 
 
 2. A vessel, the property of citizens of the 
 United States in the year 1799, was driven by 
 distress into a French port and obliged to 
 land her cargo in order to make repairs. She 
 was prevented by the Fi"ench government from 
 reloading, and it was sold. The oflScers of 
 the government were to pay for it in thirty 
 days, but payment was not made, and she took 
 produce of that country in payment, sailed, 
 and was captured by a British frigate, carried 
 to Tortola and libeled as enemies' property, 
 and as property of American citizens trading 
 contrary to the laws of the United States. 
 Held, the case was not within the act of con- 
 gress of 1798, nsaally called the noninter- 
 course law ; that a vessel forced by stress of 
 weather into a French port and obliged to 
 land her cargo, and prevented by the authori- 
 ties from reloading and carrying it away, 
 was not bound to abandon the property and 
 seek redress at the hands of her governmeut; 
 if actual war had existed between France aud 
 the United States, the insured, being driven 
 by stress of weather into a French port and 
 being prevented by the authorities from tak- 
 ing his cargo away, might sell it and purchase 
 a new cargo without vitiating the policy, be- 
 cause it would not have been an intentional 
 offense. SaUet v. Jenks, 3 Cran., 210. 
 
 3. On goods, warranted against capture or 
 detention for or on account of any illicit trade 
 or trades in articles contraband of war. The 
 insurer knew that goods contraband of war 
 were to be carried in the ship, and made the 
 policy with that fact in view. Held, the war- 
 ranty extends in the understanding of the par- 
 ties to the goods of the insured. Bowne «. 
 ShcoB, 1 Caines, 489. And where it appears 
 that the insurer did not have notice that con- 
 traband goods would be carried, and tlie in- 
 sured is master of the ship and consignee of 
 the contraband goods, still the warranty is lim. 
 ited to the goods of the insured. Tbid 
 
 4. Warranty against illicit trade is not 
 broken if the master barratrously carry on 
 illicit trade. Saekley v. Delafield, 2 Caines, 223. 
 
 5. To constitute a breach of warranty 
 against illicit trade, the seizure must be for 
 an actual illicit, prohibited or contraband 
 trade. Johnston v. Ludlote, 1 Caines' Cas., 29. 
 
 6. " On goods and merchandise." Contra- 
 \iand goods were shipped. Held, a trade by a 
 
 neutral in goods contraband of war is lawful, 
 and it was not necessary to disclose to tlie in- 
 surer that a part of the cargo was contraband. 
 The presumption is that the neutral trades as 
 usual, without any regard to the accidental 
 circumstance of war abroad. Seton v. Low, 1 
 Johns. C, 1. 
 
 7. On cargo, from Surinam to a port of dis- 
 charge in the United States. She sailed ; was 
 captured the next day, libeled and con- 
 demned as lawful prize. The policy was for 
 account of Mackay, of Boston. Held, equiv- 
 alent to saying that the cargo was his prop- 
 erty; that the trade between Surinam and 
 Boston was not illegal; hence the plaintiff 
 was entitled to recover. KembU v. Bhine- 
 lander, 3 Johns. C, 130. 
 
 8. Ship entered the river La Plata on her 
 return voyage, the master being ignorant of 
 the war between the Brazils and Buenos 
 Ayres. She was taken by a Brazilian vessel 
 to Rio Janeiro, where prize proceedings were 
 instituted by the captors, and abandoned to 
 the insurers during their pendency. Held, the 
 capture was hostile; that the case did not 
 come within the perils excepted of illirit 
 trade, or trade in articles contraband of war, 
 and that she was not violating the belligerent 
 rights of Brazil, because she had no notice of 
 the blockade ; hence the insurers were liable. 
 Lovering v. Mercantile Ina. Co., 13 Pick., 348. 
 
 9. On ship, from New York to St. Barthol- 
 omew. "Warranted, furnished with a pass- 
 port from Admiral Sawyer, in the usual 
 form." She was taken by a British ship of 
 war, and condemned on the ground that the 
 license issued by the admiral was not author- 
 ized. The license was for a cargo of dry pro- 
 visions, but the cargo consisted of wet and 
 dry pi'ovisions. Held, if there was no other 
 form of license than that granted, and the 
 usage of merchants and understanding of the 
 parties was that such license was the only one 
 required, whatever might be the cargo, or that 
 the insurers knew what cargo was put on 
 board, insured would be entitled to recover. 
 BidMey v. Derby Fishing Co., 1 Conn., 571. 
 
 10. " Warranted against loss or damage aris- 
 ing from any illicit or prohibited trade, or 
 any trade in articles contraband of war." 
 The parties agreed that she was captured as 
 prize of war, being enemies' property. Held, 
 no defense could be rested on the warranty. 
 Merchants Ins. Co. v. Edmond, 17 Gratt, 138. 
 
 313. 
 
627 
 
 ILLICIT TRADE. 
 
 628 
 
 What is not a breach of the warranty. 
 
 11. The license granted gave a wider scope 
 tliiin tlie conditions stated in the orders of the 
 council, but the license did not refer to the 
 orders in council. Held, the license could 
 not be restricted by the orders in council. 
 Spitta V. Woodman, 2 Taunt., 416. 
 
 12. The statute, 42 Geo. Ill, ch. 77, has re- 
 pealed the statute requiring a license from the 
 South Sea Co. or the East India Co., for ships 
 passing through the straits of Magellan or 
 round Cape Horn for the purpose of trading 
 or fishing in the Pacific Ocean; hence a ship 
 might go there either for the sole purpose of 
 trade or the sole purpose of fishing. Jacob v. 
 Jansen, 3 Taunt, 534. 
 
 13. At and from St Petersburg to London, 
 with or without simulated papers or licenses, 
 on goods as interest might appear, to be there- 
 after declared and valued. M., S. & B., were 
 interested to the amount insured, which was 
 for their use and benefit and afterwards de- 
 clared by indorsement, that the interest was 
 in them and that the goods were valued at 
 £4,130. S. resided at Hamburg, B, at Glas- 
 gow, and M. at Gottenburg. They were part- 
 ners in trade. License to F. & Co., permitting 
 goods to be imported from any port in Russia, 
 Prussia or Benmark, to any port in the U. K. 
 Hamburg and Sweden were both in a state of 
 hostility with Great Britain. S, & M. were 
 alien enemies. The goods were consigned to 
 the insured. Held, it was the intention of the 
 government to encourage the importation of 
 these goods from Russia, Prussia and Den- 
 mark; that P. & Co. had a right to recover 
 the sum insured; and that no question could 
 be raised as to what they intended to do with 
 the money. Fayle v. Bourdillion, 3 Taunt., 
 646 ; Morgan n. Oswald, id., 554. 
 
 14. The license provided that the name of 
 the vessel, her tonnage and time of clearance 
 from port of loading should be indorsed on it 
 and an indorsement was made, as follows: 
 "The vessel for which this license is granted 
 is the Rostock ship, called America, Gunter 
 master, which cleared the port of Archangel 
 for the port of London, the 5th September, 
 1810.'' The master got his papers September 
 20th, new style, and sailed on the 22d. Sep- 
 tember 5, 1810, old style, was September 17th, 
 new style. Held, a substantial compliance 
 with the condition. Morgan v. Oswald, 3 
 Taunt., 554 
 
 1 5. A license to G., P. & Co., on behalf of 
 SU 
 
 themselves and others. Held, it could not bo 
 restrained to the grantees alone nor to British 
 subjects only. £'eige v. Bell, 4 Taunt, 4. 
 
 1 6. On cargo from London to Archangel. 
 It was the property of three persons, one a 
 British subject, the two others were neutrals 
 at tlie time of shipment; but before action 
 brought they became alien enemies. There 
 was a sufficient license. Held, the policy was 
 valid and a recovery could be maintained for 
 the j.oint interests of the three. Be TaMet v. 
 Taylor, 4 Taunt., 233. 
 
 17. The license permitted the licensee to 
 import direct from any port in Korway, 
 Sweden or Denmark without the Baltic, not 
 under blockade, or to sail in ballast from any 
 port north of the Scheldt to any port of Nor- 
 way, Sweden or Denmark, without the Baltic, 
 not under blockade, and in either case to im- 
 port from thence a cargo, etc. The policy 
 was from Jersey to port or ports in Norwaj', 
 there in port and back to London. She sailed 
 in ballast, and before she arrived in Christiana 
 was captured by a Danish privateer. Held, 
 the license authorized her to proceed from any 
 port of Great Britain, whether north or south 
 of the Scheldt. Le Cheminant n. Pearion, i 
 Taunt., 367. 
 
 18. The license was limited to a certain 
 day. The voyage was not completed at that 
 date. Held, it was incumbent on the person 
 claiming the protection of the license to 
 prove that the master had exercised due dili- 
 gence, or that there were special circumstances 
 not within his control, clear of fraud and 
 laches which protracted the voyage, and if 
 there was no default, the license protected the 
 adventure till its completion. Freeland v. 
 Walker, 4 Taunt., 478 ; Leeoin «. Gorman, id., 
 483 n.; Siffken v. Glover, id., 717. 
 
 19. She was intended to go to the Baltic, 
 but took a clearance to Gottenburg. The 
 license provided that she should proceed di- 
 rect to the port of discharge specified in her 
 clearance. She was detained twenty days by 
 adverse winds, and at Gottenburg she was fur- 
 ther detained by an embargo ; she was again 
 driven in Halmoe roads by stress of weather, 
 and detained there five days. The license ex- 
 pired June 3d, and she was captured on the 
 13th, in Pillau roads. Held, the liceaae pro. 
 tected the voyage, notwithstanding the ulti- 
 mate port of destination was not mentioned in 
 the clearance. Leevin v. Gormae, 4 Taunt, 483. 
 
629 
 
 ILLICIT TRADE. 
 
 630 
 
 What is not a bieach of the warranty. 
 
 80. She hionght goods enumerated in a 
 license from a hostile country, and other goods 
 not licensed, from the same. Held, the insur- 
 ance on the goods licensed was not thereby 
 vitiated. Pieaehea v. Allnutt, 4 Taunt, 792. 
 
 21. She was driven into a port of distress, 
 where her cargo was unladen that she might 
 be repaired, and it was burned in wai'chouse. 
 Another cargo of other goods was purchased 
 there, with which she sailed to complete the 
 voyage. Seld, it was protected by the license, 
 notwithstanding it was to expire long before 
 the cargo was taken in. Siffken v. G/Untr, 4 
 Taunt., 717. 
 
 82. A license was granted to G., F. & Co., to 
 export on behalf of themselves and others a 
 cargo from Loudon to Archangel, an enemy's 
 port, and to import thence in the. same ship a 
 cargo of such goods as were by law permitted 
 to be imported, notwithstanding that all the 
 documents which accompany the ship and 
 cargo may represent the same to be destined 
 to a neutral or hostile port. She arrived at 
 Archangel, and ship and cargo were seized 
 and detained by persons acting under author- 
 ity of the Emperor of Bussia. She was after- 
 wards released, but the cargo was condemned 
 on the ground that it was not taken on board 
 in a neutral or friendly, but in an enemy's 
 port, and that the papers which accompanied 
 il were fallacious. MM, the license sanctioned 
 the shipment, and therefore it was legal, and 
 that the insurance on it was Uierefore legal, 
 notwithstanding that in obtaining the li- 
 cense, the privy council did not know that 
 the application was in behalf of a hostile 
 trader; nor did that concealment vitiate tlie 
 license or policy. Flindt v. Scott, 5 Taunt, 
 674; overruling Mennettv. i?onAa7n, 15 Eait, 
 477; reversing Flindtv. Scott, 15 id., 525. 
 
 23. A license to sail in ballast from any 
 port north of the Scheldt to Archangel, or to 
 any other port of the White Sea, there to take 
 a cargo of goods permitted, and to import 
 them into the United Kingdom, makes it law- 
 ful for a vessel, which had sailed from Great 
 Britain to St. Petersburg with colonial -pro- 
 duce, to bring home a return cargo of the 
 goods specified. Stanifortk •v. Coonibe, 5 Taunt, 
 726. 
 
 24. A neutral is protected by the policy 
 against the confiscation of his own govern- 
 ment, made under the Berlin and Milan de- 
 crees, if the adventure was in ftirtherance of 
 
 the objects of British commerce. Bazett v. 
 Meyer, 5 Taunt, 824. 
 
 25. The exportation of gunpowder was pro- 
 hibited by proclamation, but the insured was 
 by license permitted to export 150 barrels. He 
 exported 300 barrels." Hdd, the insurer was 
 liable for the value of the quantity licensed. 
 Keir v. Andrade, 6 Taunt, 499. 
 
 26. A license was granted to A. and B., per- 
 mitting vessels bearing any flag to import 
 specified goods. Held, for the purpose of 
 showing the voyage was lawful, it was suffi- 
 cient to show that the license applied to the 
 ship and voyage in question without connect- 
 ing the insured with the persons to whom the 
 license was granted; and that when it ap- 
 peared that the custom house would not have 
 permitted (he entry to have been made unless 
 tlie time of the clearance was indorsed upon 
 the license (it being accidentally destroyed), 
 the presumption was that the time of the clear- 
 ance was indorsed. Butler v. Allnutt, 1 Stark., 
 222. 
 
 27. Goods, the produce of Holland, pur- 
 chased there during hostilities between Hol- 
 land and England, by a British agent resident 
 there, shipped for British subjects, were in- 
 sured in England. Held, the trade was legal 
 and the policy valid. Bell v. Oilton, 1 B. & 
 P., 345. 
 
 28. License to Bridge & Smith, their agents 
 or the bearers of their bills of lading, to im- 
 port certain goods within six months, provided 
 any person who shall claim the benefit of the 
 license, shall take and have the same upon 
 certain conditions. Goods were shipped by 
 J. Smith & Son under three bills of lad- 
 ing, included in another bill of lading made 
 for the whole cargo to Bridge & Smith. 
 Hdd, all the goods were protected by the 
 license. Defflis v. Parry, 8 B. & P., 3. 
 
 89. If an alien be resident in an enemy's 
 country, goods delivered for him at a neutral 
 or friendly port are not on that account 
 uninsurable. Bromley v. Hesseltine, 1 Camp., 
 75. 
 
 30. She sailed under convoy, but parted 
 company in a gale and was captured. By tlie 
 capitulation of Copenhagen, that place was to 
 be restored within six weeks from its surren- 
 der to the English arms; that period expired 
 October 19th, and the city was evacuated the 
 following day, but the intelligence had not 
 reached England before she sailed. Held, the 
 
 315 
 
631 
 
 ILLICIT TRADE. 
 
 632 
 
 What is not a breach of the warranty. 
 
 voyage was not illegal. Atkinson v. Abbott, 1 
 Camp., 535 ; 11 East, 135. 
 
 31. On a voyage to a Prussian port. No 
 declaration of war had been made against 
 Prussia, nor letters of marque and reprisals 
 issued, nor any act of hostility. Held, the 
 voyage was not illegid. Muller v. Thompson, 
 2 Camp., 610. 
 
 32. She had a license, to expire September 
 29th; but she sailed in the summer preceding 
 and was prevented by stress of weather from 
 reaching her destination before that date. 
 Seld, the license operated as a remission of 
 the king's rights of war till the adventure w.is 
 completed, and preserved the legal it}' of the 
 policy. OrorUng o. Crockett, 3 Camp., 83 n. 
 
 33. The license was to remain in force till 
 September 29th. She had her cargo on board 
 and was ready to sail before that day, but was 
 prevented by foul weather. Held, as the pol- 
 icy attached before the license expired, it was 
 exactly the same as if it had expired only the 
 day before she rea<:hed the port of destination. 
 Sehroeder v. Vaux, 3 Camp., 84, note; b. c, 15 
 East, 52. 
 
 34. "On cargo at and from Bordeaux to 
 Madeira, the East Indies and America, with 
 liberty to touch," etc. She proceeded to Ma- 
 deira and took goods that had been previously 
 shipped from London, for the purpose of pro- 
 ceeding with her whole cargo to the British 
 territories in the East Indies. She was cap- 
 tured after she left Madeira, with all her cargo. 
 Held, under the 13th article of the treaty be- 
 tween England and America, the intercourse 
 between America and the East Indies need 
 not be immediate and direct, but it might be 
 carried on circuitously by way of Europe. 
 Wilson V. Marryat, 8 Term, 36 ; 1 B. & P., 430. 
 
 35. On goods from Canton to Hamburg or 
 Copenhagen. She was loaded at London and 
 proceeded to the Mauritius, Bombay and Can- 
 ton, where the cargo was sold, the proceeds 
 were invested in cargo for Europe, and she 
 was captured. Held, the two voyages were 
 separate; that the homeward voyage could 
 not be affected by the illegality of the outward 
 voyage. Bird a. Appleton, 8 Term, 562. 
 
 36. " On goods on boaid the Hermon. Liv- 
 erpool to Messina and Naples." Prior to the 
 making of the policy, she was described by 
 the broker as American; but it was not so 
 represented when the policy was made. She 
 was American, but she had goods contraband 
 
 SIG 
 
 of war, and had no certificate of the fact, as 
 required by the treaty between the U. 8. and 
 Spain. She was captured and condemned 
 because she was not properly documented 
 Held, as she was not required by the policy td 
 be American, it was not necessaiy to docu- 
 ment her as such. Dawson v. Atty, 7 East, 
 307. 
 
 37. A policy was made in the name of a 
 British subject, as agent for the benefit of an 
 alien enemy ; and the adventure was protected 
 by the King's license. Held, the same policy 
 which allows the granting of licenses to au- 
 tliorize the trade, ought to give effect to the 
 ordinary means of indemnity by which that 
 trade might be best promoted and secured. 
 Trading with an alien enemy for specie and 
 goods, to be brought from the enemy's cotmtry 
 in his ships, to the British colonies, was au- 
 thorized by license. Held, an insurance upon 
 the enemy's ship, as well as on the goods and 
 specie, were protected by the license. Ken- 
 sington D. Inglis, 8 East, 273. 
 
 38. A neutral ship may lawfully carry ene- 
 my's property from its own to the enemy's 
 country. Barker d. Blokes, 9 East, 283. 
 
 39. A license was granted to export goods 
 to certain places, in the name of N. H., on be- 
 half of himself and other British merchants. 
 N. fl. had no property in the goods, but he 
 was proved to be the agent of the persons re- 
 ally interested. Held, suflScient to support a 
 policy on the goods. RawUnson v. Janson, 12 
 East, S23. 
 
 40. A native Spaniard, domiciled in Eng- 
 land during a war with Spain, was licensed 
 to ship goods In a neutral vessel to certain 
 ports in Spain. IfeW, the, license protected 
 goods his own or the property of his corres- 
 pondents, though they resided in the enemy's 
 country. Vsparicha n. Noble, 13 Ef-st, 232. 
 
 41. A person to whom the license was 
 granted was described as of London, but he 
 resided at Heligoland. Held, the license was 
 invalid. Mlingender v. Bond, 14 East, 484; 
 overruled, Lemcke v. VaugTian, 2 L. J. C. P., 
 44; 7 D. & R, 236. 
 
 42. The trade prosecuted was with places 
 which, by prior orders of council, were de- 
 clared to have ceased to be under the domin 
 ion of the enemy. Held, they were thereby 
 recognized as neutral, and by operation of law, 
 those places were open to trade as other places 
 not hostile, and insurance upon a voyage to 
 
633 
 
 ILLICIT TRADE. 
 
 634 
 
 What is not a breach of the warranty. 
 
 them or to any of tliem was valid. Blackburne 
 «. Thompsoii, 15 East, 81 ; 3 Camp., 61. 
 
 43. Stipulated: "The ship may carry sim- 
 ulated papers." She was condemned on the 
 ground principally that the simulation was 
 imperfect. Jleid, if the simulation was tlie 
 ground, or mainly conducive ground of con- 
 demnation, the insurer could not be dis- 
 charged, for he had agreed that she should 
 carry simulated papers. JBell v. Brootnfield, 15 
 East, 364. 
 
 44. A license to T. and others will protect 
 property shipped by a person for whom F. 
 and others were acting as agents, in procuring 
 the license and carrying on tlie adventure, 
 though that person was a foreigner, residing 
 in England under an alien license. F'eise v. 
 NewnhatH, 16 East, 197. 
 
 45. A license was granted, to expire Sep- 
 tember 29, 1810; extended to June 1, 1811. She 
 sailed on her home voyage October 13, 1810, 
 but was driven back to Archangel, discharged 
 and sold cargo, and laid up for the winter. 
 She did not sail till August, 1811. Sdd, it 
 appearing that the voyage was prosecuted with 
 all reasonable dispatch, the license protected 
 a policy made upon her home cargo in Au- 
 gust, 1811. Siffken v. AanvU, 1 Mau. & Sel., 
 
 39. 
 
 46. A license to H. S., a British merchant, 
 
 permitting a ve.ssel bearing any flag except 
 French, to proceed to enemy's port and take a 
 cargo to the United Kijgdom, is not confined 
 to H. S., but covers the goods of an alien 
 enemy, it appearing that the licensee acted on 
 behalf of the alien enemy in procuring the 
 license. Robinson -d. Toiiray, 3 Camp., 158; 
 Same v. Cheesewright, 1 Mau. & Sel., 230 ; Svll- 
 man r. Whitmort, 3 id., 337. 
 
 47. A British merchant obtained a license 
 in his own name, on behalf of himself and 
 other British merchants, to export on any ves- 
 sel bearing any flag except French, a specified 
 cargo, from London to any port in the Baltic, 
 not under blockade. She took a cargo, the 
 property of Hamburg merchants, and sailed 
 for Swinemunde, arrived, and was informed by 
 the commisary that it would be safer to land 
 at Rugenwold. On her voyage thither she 
 was captured by a French privateer. Ham- 
 burg was in the possession of the French 
 troops, but the Senate continued to exercise 
 the powers of civil government Hdd, the 
 possession -• Hamburg by the French did 
 
 not constitute Hamburg subjects the enemies 
 of England, and tliat the license protected the 
 policy upon the voyage insured. Hagedorn, v. 
 BeU, 1 Mau. & Sel., 450. 
 
 48. From London to any ports in the Baltic 
 or the Gulf of Finland, backwards and for- 
 wards, with liberty to touch, stay, discharge 
 and unload or tranship, etc., to carry and ex- 
 change simulated papers and clearances. The 
 interest was in Prussian subjects resident at 
 Colberg in Prussia, to whom tlie goods were 
 consigned. They were seized near Colberg by 
 persons exercising the powers of government 
 in Prussia, were sequestered and lost, " Because 
 she carried simulated clearances when all 
 commerce between England and the Baltic 
 ports was prohibited." Merchants, generally, 
 knew that goods for the Baltic were subject 
 to seizure, and by way of aflPording fH-otection 
 to such risks, trade was carried on in the 
 name of otliers; the perils which might result 
 from such a trade were contemplated by the 
 parties when the policy was made. Beld, the 
 exclusion of a risk occasioned by the act of 
 the government of the insured, is only an 
 implied exclusion, which may be rebutted by 
 circumstances; tliat the facts and circum- 
 stances in this case were sufficient to rebut 
 that implied exclusion, and, therefore, the in- 
 surer was liable. Simeon v. Baeett, 2 Man. & 
 Sel., 94. 
 
 49. Policy to A., as well in his own name 
 as for others, upon ship for tlie benefit of S., an 
 al ien enemy. A. procured a license for the voy- 
 age, and S. adopted the insurance two years 
 after by letter to insured. Held, the insurer 
 was liable upon an action brought by A. averr- 
 ing the interest in S. Hagedorn v. Oliverson, 
 3 Mau. & Sel., 485. 
 
 50. A license granted to J. H., on behalf of 
 himself and other British or neutral mer- 
 chants, in any vessel bearing any flag except 
 French, from place or places within certain 
 specified limits. Held, it protected a cargo in 
 which an alien enemy was interested, from a 
 hostile port. Hagedorn o. Beid, 1 Mau. & Sel., 
 
 567 ; 3 Camp., 377 ; Rueker v. Amity, 5 Mau. & 
 Sel., 25. 
 
 51. On goods. They were manufactured 
 within the kingdom of Prussia, and imported 
 in a Swedish ship for use in the United King- 
 dom. Held, no defense to tlie action, because 
 the goods, bristles and beer, were not enume- 
 rated in the 2d sec. of 8 & 4 Will. IV, ch. 54. 
 
 317 
 
635 
 
 ILLICIT TRADE. 
 
 636 
 
 What is not proof of illicit trade. 
 
 Thompson v. Irving, 7 Mee. & W., 367; 5 Jur., 
 103. 
 
 52. A license was granted to C. F. Hampe 
 of London, merchant, permitting any vessel 
 bearing any flag, except the Frencli, to talse a 
 cargo of British manufactured colonial pro- 
 duce, and such goods as were permitted to be 
 exported from Heligoland to any port in the 
 Baltic not under blockade; with liberty to 
 carry simulated papers, upon condition that 
 the name and tonnage of the vessel, name of 
 master and time of clearance from Heligoland, 
 should be indorsed upon the license, and a 
 certificate from the custom house at Heligo- 
 land should accompany the cargo, certifying 
 that the same was originally exported from 
 the 'U. K., to be in force for four months. 
 The indorsements were made as required, and 
 the customs certificate accompanied the cargo. 
 This policy was "from Heligoland to any 
 port or ports in the Baltic and Gulf of Fin- 
 land, against all risks. Including risks of 
 craft, with liberty to carry and exchange 
 real or simulated papers. On goods as shall 
 be declared and valued hereafter." By in- 
 dorsement, the goods were declared and val- 
 ued at £10,150, by Vrow Hendricka. The 
 plaintiff was a merchant, native and resident 
 of Hanover at the time the policy was ef- 
 fected, license granted, and loss. He had 
 imported the goods from British colonies; 
 they were at Heligoland, in possession of his 
 agents there, but having resolved to send some 
 of them to neutral ports in the Baltic, he em- 
 ployed C. F. Hampe, sent him to Heligoland 
 for that purpose, and Hampe was then on the 
 point of going to England to reside, and di- 
 rected his correspondent, Klingeuder, to effect 
 insurance to cover the adventure. Klingender 
 procured the license in Hampe's name and 
 made the insurance in his own. Held, fraud 
 was neither intended nor committed in the 
 description; that licenses of this description 
 were to have a liberal construction ; the ob- 
 ject of the license was to legalize the adven- 
 ture rather than to qualify Ihe party, and was 
 therefore ' sufficient to protect the policy 
 Lemche v. VavgTian, 3 L. J. C. P., 44; affirmed, 
 7 D. & R., 236 ; reversing Klingender v. Bond, 
 14 East, 484. 
 
 53. On goods from London to Hatamoras. 
 
 Plea: "They were contraband of war, were 
 
 shipped by the plaintiff for the purpose of 
 
 being sent to and imported into a state in 
 
 318 
 
 open hostilities to the United States, and were 
 liable to be seized by the cruisers of the Uni- 
 ted States as contraband of war; that the ship 
 Carried goods and papers which rendered her 
 liable to be seized by said cruisers, and that 
 the ship and goods were seized accordingly, 
 which is the loss complained of." BM, tlie 
 allegation that they were shipped for the pur- 
 pose of being sent to an enemy's port was an 
 allegation of mental process only, and insuffi- 
 cient of itself to establish that they were lia- 
 ble to seizure for a breach of neutrality; that 
 goods passing between neutrals, though of tlie 
 quality described as contraband of war, are 
 not seizable by a belligerent, unless it dis- 
 tinctly appears that the voyage was to an ene- 
 my's port; that "She was carrying papers 
 which made her liable to be seized, of which 
 the insurer was ignorant," was no defense, for 
 the defendant may have remained in igno- 
 ranee without fault on the part of the plaint- 
 iff, nobis v. Henning, 17 0. B. (N. S.), 791 ; 
 11 Jur. (N. 8.), 223; 34 L. J. C. P., 117; 13 W. 
 R., 431; 12 L.T. (N. S.), 205. 
 
 III. What is not peoof of illicii 
 
 TEADE. 
 
 1. Warranted free from loss which may 
 arise in consequence of a seizure or detention 
 of the property for, or on account of any illicil 
 or prohibited trade. It was alleged she had 
 on board mahogany of a larger size than was 
 permitted to be exported by the regulations of 
 the British settlement at Honduras. She was 
 seized for it, and while proceeding to Jamaica 
 under charge of the captor, both vessels were 
 lost. But the cargo was taken in for Liver- 
 pool. There was an express prohibition that 
 no vessel should be permitted to carry mahog- 
 any exceeding seventeeen inches to the United 
 States. Held, the trade was not illicit, and the 
 warranty was preserved. Ordham v. Pennsyl- 
 vania Ins. Co., 3 Wash. C: C, 113. 
 
 2. She proceeded to the Falkland Islands, 
 on a sealing voyage, and was there seized, 
 under an alleged authority, by the acting gov- 
 ernor, for fishing contrary to the law of Bue- 
 nos Ayres. But the American government had 
 theretofore and at that time asserted, through 
 the executive, that the Falkland Islands did 
 not constitute any part of the dominions 
 within the sovereignty of Buenos Ayres, and 
 that the seal fishing at those islands was a 
 
637 
 
 ILLICIT TRADE. 
 
 638 
 
 What is not pioof of illicit trade. 
 
 trade free and lawful to the citizens of the 
 United States, and beyond the power of the 
 government of Buenos Ayres to regulate, pro- 
 hibit or punish. The master had warning 
 that she would be seized if she engaged in it, 
 but she engaged in it after the warning, was 
 seized and condemned therefor. The master 
 acted hona fide, under a belief that he was 
 bound to do so as a matter of duty to tlie 
 owners and others interested in the voyage. 
 Held, when the executive branch of the gov- 
 ernment assumes a fact in regard to the sover- 
 eignty of any islaud or country, it is conclu- 
 sive on tlie judicial department, and it is not 
 in the province of the court to determine 
 whether the executive be right or wrong; 
 hence any inquiry on that point was immate- 
 rial ; a contrary rule would produce irrecon- 
 cilable differences between the executive and 
 judicial departments, upon questions of for- 
 eign jurisdiction; that the master was not to 
 be diverted from the objects of the voyage 
 and the exercise of rights which belonged in 
 common to the citizens of the United States, 
 by an unauthorized threat of seizure ; hence 
 insured were not bound to regard the threats 
 of any individual who might assume to exer- 
 cise power; and it was the master's duty to 
 prosecute the voyage and attain the objects of 
 it for the benefit of his owners, in the exercise 
 of a proper discretion ; hence, insurers were 
 liable for the loss. Affirming s. c, 3 Sumn., 
 270; WilUamt v. Suffolk Ins.Go^ 13 Pet., 415. 
 
 3. Warranted against seizure or detention 
 for or on account of any illicit or prohibited 
 trade. Held, unless there was an actual exis- 
 tence of either illicit trade or contraband pro- 
 ducing the loss, the insurer was liable; that 
 where the facts stated in the sentence of con- 
 demnation fail to support the conclusions of 
 the sentence, the underwriter could not be re- 
 lieved. Johmton v. Ludlow, 2 Johns. C, 481. 
 
 4. Where the policy warrants against any 
 damage, charge or loss which may arise in 
 consequence of a seizure or detention for or 
 on account of any illicit or prohibited trade. 
 Eeld, the seizure must be for an actual illicit 
 or prohibited trade, and the insurer must 
 prove the existence of a law condemning the 
 trade; a seizure and condemnation under pre- 
 text of such a trade is not sufficient if in fact 
 the trade is not illicit; both the seizure and 
 illicit trade must concur, and the illicit char- 
 acter of the trade is not proven by the fact of 
 
 seizure. Francis v. Ocean Ins. Co., 6 Cow., 
 404. And if the decree of condemnation does 
 not specify the grounds on which it is pro- 
 nounced, but alleges that it is for a breach of 
 some or one of tlie laws of navigation, it is 
 not prima facie evidence. Ibid; affirmed, 
 
 2 Wend., 64. 
 
 5. The policy excepted loss which might 
 arise in consequence of seizure or detention 
 for or on account of any illicit or prohibited 
 trade. She was seized oflf Cuxliaven, carried 
 to Hamburg, where the cargo was confiscated 
 by the Emperor Napoleon, ffeld, there must 
 be both a seizure and an illicit or prohibited 
 trade; that it must be a legal prohibition, 
 such as the prohibiting power had a right to 
 make ; that the insurer must prove that Ham- 
 burg, at the time of tlie decree, was within 
 the territory of the Emperor Napoleon, and 
 that the seizure was made in consequence of 
 a breach of it; of which there w.os not the 
 necessary proof. Smith v. Delaware Ins. Co., 
 
 3 S. & R., 74. 
 
 6. Warranted free from any charge, damage 
 or loss which may arise in consequence of 
 having been engaged in illicit or prohibited 
 trade at any time whatsoever. When the 
 policy was subscribed, it was publicly known 
 that Tampico, the port of destination, was in 
 the possession of the Spanish invading forces, 
 but was declared free for provisions, except 
 flour. Between the day she sailed and her ar- 
 rival at Tampico (twelve days) the Mexicans 
 had retaken the place, and exhibited Spanish 
 colors to decoy vessels laden with provisions. 
 She was seized, dismantled, the master and 
 crew imprisoned, and the cargo sold without 
 any judicial proceedings. By the Mexican 
 law, prohibited articles became forfeited to 
 the government, but the forfeiture of cargo 
 did not work a forfeiture of the ship. Upon 
 the master's release, he applied to the com- 
 mander-in-chief for restoration of his vessel, 
 hut was ordered, under pain of death, to dis- 
 continue further application. Held, whenever 
 violence is used and military authority exer- 
 cised in matters which, in all civilized 
 countries, are the attributes of the civil power, 
 a presumption is raised that the proceedings, 
 even in their result, are not such as would 
 have obtained the sanction of law; it was 
 necessary for tlie defendants to show that by 
 due course of legal proceedings the vessel 
 was condemned as contraband; that having 
 
 319 
 
639 
 
 ILLICIT TRADE. 
 
 640 
 
 What ia illicit trade. 
 
 failed to do so, the insured was entitled to re- 
 cover. Thompson ». Mississippi Fire and Ma- 
 rine Ins. Co., 2 La. (O. S.), 328. 
 
 7. She was Norwegian built, and was pur- 
 chased by insured of a subject of Denmark, a 
 hostile state. Insured had a license to pur- 
 chase of the enemy. She was chartered from 
 London to St. Michaels and back to London, 
 for a cargo of fruit at St. Michaels. She sailed 
 in ballast, with Danish papers, colors, master 
 and crew. On her arrival at St. Michaels, she 
 was refused entrance, and ordered to proceed 
 to Tercera, there to seek and obtain permission 
 to land at St. Michaels, which the master re- 
 fused to do, assigning as his reason that it 
 would violate his charter party, and asserted 
 that he would lie in the harbor during the 
 time stipulated for taking in the cargo ; where- 
 upon a Portuguese pilot, master and crew 
 were put on board, her master thrown into 
 prison, and the ship navigated to Tercera. 
 She was sequestered on the ground that she 
 had not British registration. Held, the seizure 
 was illegal, and the insured was entitled to 
 recover. SeuoeU v. Boyal Exehauge Ass. Go., 4 
 Taunt., 856. 
 
 8. The owners of certain arms and ammuni- 
 tion consigned them to D. & Co., at Madeira, 
 and they were insured from London to Ma- 
 deira, valued at £800. The shippers' intention 
 to ship was communicated to the consignee 
 prior to the ship's departure, and that inten- 
 tion was communicated by the consignee to 
 the governor at the port of destination, who 
 seized the goods on their arrival. By treaty 
 between Great Britain and Portugal, full re- 
 ciprocal liberty of commerce and navigation 
 was granted for all goods, except enemies' 
 property of either power, or contraband of 
 war, and certain goods, designated, were pro- 
 claimed contraband of war. The government 
 of Portugal had the right of preemption as to 
 goods imported, known as military and naval 
 stores, and required for their own use. The 
 shipment was made openly and described iu 
 the manifest. Held, the exception as to goods 
 contraband applied only to a time of war, and 
 insurer was liable for the loss, though the 
 seizure was accelerated by the agent of the 
 insured. Wilbraham v. Wa/rlnaby, 8 L. J. K. 
 
 .., 255. 
 
 IV. What is illicit teade. 
 1. "On freight from Norfolk to Cadiz, 
 
 property warranted free from all claims in 
 consequence of any restraints that may be im- 
 posed by the American government previous 
 to sailing. The ship has a Sidmouth license 
 on board." She was carried into Lynhaven 
 Bay by the British squadron, and the master 
 was informed that, the Chesapeake was then 
 blockaded ; thai he must take the ship back 
 to Norfolk. He was finally ordered to ascend 
 the James and to remain there, which he did. 
 About four months after, an abandonment was 
 tendered, of which the master was informed. 
 May 20th. The cargo was subsequently sold 
 by order of insurers, who were also insurers 
 of the freight. Held, the voyage was illegal 
 because she had a British license (citing The 
 Tanny, 9 Cranch, 181; The Aurora, 8 id., 203; 
 The Hiram, 1 Wheat., 440; The Ariadne, 2 id., 
 148). Craig v. United States Ins. Co., Pet C. 
 C, 410. 
 
 2. Time policy on goods. " Warranted free 
 from charge, damage or loss which may arise 
 in consequence of seizure or detention for or on 
 account of illicit or prohibited trade, or trade 
 in articles contraband of war." She cleared 
 for the Sandwich Islands and Canton, but 
 was bound Immediately to Valparaiso, in 
 Chili, with ulterior destination stated in her 
 sailing orders. Spain and the states of Chili 
 were in open hostility at the commencement 
 of the voyage. She arrived at Valparaiso and 
 transferred to an English brig sixteen casks 
 of powder and a large quantity of muskets; 
 she sailed thence and arrived at Coquiseto, ia 
 Chili, where she landed more powder and 
 sailed thence for Huasco, in Chili, having 
 sold and taken in cargo not contraband. She 
 arrived at Quilca and commenced to discharge 
 balance of cargo, when she was seized under 
 an alleged authority from the Spanish govern- 
 ment, and the cargo was confiscated. Held, 
 unless the seizure was legal and justifiable, 
 the exception did not release the insurer ; that 
 upon the facts stated, it was legal and justifia- 
 ble ; that having deposited or disposed of the 
 contraband goods before the seizure did not 
 relieve the insured from the consequences of 
 violating the warranty; and it was immate- 
 rial whether the proceedings against her for 
 adjudication were irregular. Carrington v. 
 Merchants Ins. Co., 8 Pet, 495. 
 
 3. On cargo from Baltimore to ITamburg, 
 loss by seizure or detention for or on account 
 of illicit or prohibited trade excepted. In. 
 
641 
 
 ILLICIT TRADE. 
 
 6-12 
 
 What is illicit trade. 
 
 sured were owners of ship. She reached 
 Heligoland and was cautioned by a British 
 vessel of war not to go to Toeuningen, as the 
 Eyder was blonkaded. She thereupon sailed 
 for Hamburg, and arrived at Cuxhaven Octo- 
 ber 22d, where she was seized, her papers ex- 
 amined by a custom house officer, and she was 
 taken to Hamburg, her cargo landed, part of 
 it sent to France in wagons, and the residue 
 sold in Hamburg. The French government 
 had possession of Hamburg and Cuxhaven, 
 and everything was done by persons repre- 
 senting the emperor. The French decree de- 
 clared colonial goods should not be admitted 
 unless accompanied with certificate of origin, 
 which she did not have. Insured received 
 notice of the seizure September 11th, but no 
 offer to abandon was made till June 9th fol- 
 lowing. In the interim there was a hope or 
 expectation that the cargo would be released. 
 Held, if she was not destined for Hamburg, 
 there never was an inception of the voyage in- 
 sured ; that to establish illicit trading, break- 
 ing bulk was not necessary for sailing, with- 
 out the certificate of origin rendered the trade 
 illicit and prohibited. Smith v. Delaware Ins. 
 Co., 3 Wash. C. C, 127. 
 
 4. Policy on two-thirds of a brig from Phil- 
 adelphia to Calcutta, thence to Philadelphia. 
 She sailed December 17th, and the nonimpor- 
 tation law took effect February 2d following. 
 Seld, if the traffic in which the ship was tn be 
 engaged was forbidden by law, a policy on the 
 ship for the voyage was void, because she 
 would be »n pari ddieto. Gray v. Sims, 3 
 Wash. C. C, 276. 
 
 6. Policy excepted loss from " seizure, de- 
 tention or account of illicit or prohibited trade 
 or contraband of war." The ship arrived at 
 Antigua and commenced loading September 
 12th; but she did not clear until October 8th. 
 September 4th a proclamation was made pro- 
 hibiting American vessels from taking sugars, 
 but it was not delivered at the custom house 
 until the 10th. She was regularly cleared 
 from the custom house, captured by the 
 French, recaptured by the British, and car- 
 ried into St. Kitta and restored on payment of 
 salvage; but the sugar was seized and con- 
 demned for a breach of the trade laws. Held, 
 notwithstanding the regular clearance from 
 Antigua, the trade was illicit and a breach of 
 the warranty. Ttieker v. De Longuemere, 1 
 Johns., 20. 
 
 21 
 
 6. On schooner valued at |6,000, from New 
 York to St. Bartholomew, and thence back to 
 New York, with liberty to touch and trade at 
 Martinique. July 7th she had on board 35 
 hogsheads of molasses, which, by the non- 
 intercourse law of the United States, forfeited 
 her to the U. S., if it was taken on board with 
 intent to import the same into the D. S. Held, 
 by taking return cargo, the court would pre- 
 sume it was intended that the goods were for 
 the home port ; and if the policy had been 
 confined to one port, no room would be left 
 for explanation; but as she was destined for 
 St. Bartholomew, an explanation might bo 
 given that the goods 'were intended for St. 
 Bartholomew. I'ontaine v. Phmnix Ins. Co., 
 11 Johns., 293. 
 
 7. " Warranted the vessel shall have a geu- 
 uine British license, and that the cargo shall 
 be in conformity with the license." The voy- 
 age was from Petersburg to Norfolk, and 
 from Norfolk to Lisbon (a voyage admitted to 
 be illegal). Held, any contract founded upon 
 an illegal voyage was void ; that the enemy's 
 license per se was a cause of forfeiture. Colgu- 
 houn V. New York Firemen's Ins. Co., 15 Johns., 
 353. 
 
 8. The plaintiff, as agent of N. and B., px- 
 ptirted from the United States to the province 
 of N. B., in the British Dominions, tJience to 
 the British West India Islands, a large quan- 
 tity of provisions, the property of N. and B., 
 contrary to the embargo laws, under an agree- 
 ment that after the property should arrive at 
 N. B., it was to be shipped to the Islands and 
 sold for the benefit of N. and B. It was trans- 
 ported in pursuance of this agreement, and 
 this action was brought to recover the pro- 
 ceeds. Held, the transaction was unlawful and 
 no action could be founded upon it. Stvrges 
 V. Bush, 5 Day, 453; Pond «. Smith, 4 Conn., 
 297. 
 
 9. The decree of the Mexican government 
 prohibited importing not only goods and mer- 
 chandise, the manufacture of Spain, but all 
 merchandise which may have been brought 
 from the ports of that country, no matter what 
 its origin or to whom it might belong. Held, 
 engaging in that trade was a violation of 
 this decree. GucuUu e. Louisiana State Ins. 
 Co., 17 Martin (La.), 464. 
 
 10. Cargo put on board September 20th. 
 Ship sailed October 3d. Order for insurance 
 made September 3d, and arrived October 5th. 
 
 321 
 
643 
 
 ILLICIT TKADE. 
 
 . 644 
 
 What is illicit trade. 
 
 License procured on the 7th, but the policy 
 •was not effected till November 20th. Held, 
 the voyage was illegal when it commenced, no 
 license having been then obtained, and that 
 tlie subsequent license did not make it lawful. 
 Senty v. Staniforth, 1 Stark., 254. 
 
 11. On ship from London to a port of dis- 
 charge in Holland or the Ems. She had a 
 license to sail in ballast, from London to Hol- 
 land, " notwithstanding anything contained in 
 his majesty's order of council," etc. She was 
 enemy's property. Held, the license did not 
 protect her, and the insurance was therefore 
 void. Grigg «. Scoit, Holt N. P., 129; s. c, 4 
 Camp., 339. 
 
 12. On ship and cargo, from the Cape of 
 Good Hope to Buenos Ayres. Three Spanish 
 officers, prisoners of war, on their parole, were 
 taken gratuitously for South America, to ap- 
 pear there before the officer in command, to 
 be exchanged by him for English prisoners. 
 They had concealed arms, and with four En- 
 glish sailors, overpowered the master and 
 crew, ran the ship aground and escaped. She 
 sailed in the first week of September, 1806, 
 without license from the South Sea Company, 
 and was burned to prevent capture. Held, 
 this was a trading within the limits of the 
 South Sea Company's charter, which was ille- 
 gal and the policy to protect it was therefore 
 void. Toulmin ®. Anderson, 1 Taunt., 327. 
 
 1 3. To support the policy a license was pro- 
 duced, permitting B. and Sons to import, from 
 any port in Holland, in six neutral ships, not 
 named, goods enumerated, the property of B. 
 and Sons, as might be specified in their bills 
 of lading. B. was the ship's broker, and he 
 appropriated the license to the ship which 
 brought this cargo as one of the six, and in- 
 sured repaid B. the proportion of the fees for 
 obtaining it. The consignors signed a general 
 bill of lading to B. for the goods and particu- 
 lar bills of lading to particular consignees. 
 Held, the license did not protect the goods, 
 therefore, the policy was not lawful. Feise 
 V. Waters, 2 Taunt., 249. 
 
 14. Sbe was licensed to sail without con- 
 voy, armed witli six carriage guns and twelve 
 men and boys. She had her full complement 
 in, and cleared for Maderia, but discharged 
 five men before she sailed. Four months after, 
 she sailed from the Downs for Portsmouth, 
 where she expected to have fonnd and joined 
 convoy, but was captured, two days later, off 
 
 322 
 
 Sboreham, with seven men only on board. 
 The statute provided that no clearance should 
 be given to any ship whicli was to sail with- 
 out convoy, unless a bond was given accord- 
 ing to the statute; no bond was given. Held, 
 the voyage was illegal, because it was in con- 
 travention of the statute, for she sailed with- 
 out convoy, under a license the terms of which 
 were not complied with. Hinckley v. Walton. 
 3 Taunt., 131. 
 
 16. The whole cargo consisted of British 
 manufactured goods, previously exported 
 from England to the Cape of Good Hope. An 
 agent of the East India Company, resident at 
 the Cape, confirmed a license granted by the 
 governor, authorizing the vessel to proceed to 
 the islands of Rodriguez and Bourbon. Held, 
 an illegal voyage, because it was the voyage 
 of a British ship carrying goods to the island 
 of Bourbon from the Cape, instead of direct 
 from Great Britain, contrary to 15 Car. II, ch. 7. 
 Oray v. Lloyd, 4 Taunt., 136. 
 
 1 6. By the statute, 43 Geo. Ill, ch. 57, all in- 
 surances on goods are void unless the ship 
 sailed with convoy, or had a sufficient license 
 to proceed without it. She was bound from 
 Hull to Palermo, Messina and Malta, or Malta, 
 Messina and Palermo, with leave to call at 
 Gibraltar. She had a license to sail without 
 convoy to Gibraltar only. She failed to ob- 
 tain convoy there, and was captured after she 
 departed from Gibraltar. Held, the shipper of 
 goods was privy to the sailing without a 
 license, for the master was the agent of the 
 shipper in respect to the goods, and the policy 
 was void. WainJumse v. Oowie, 4 Taunt., 178. 
 
 17. "Prom Portsmouth to Amsterdam, on 
 prize wines, interest in Van Eyck, a native of 
 Holland, domiciled at Amsterdam, but resi- 
 dent in England, under the King's licenne, 
 dated May 28, 1806, for the term of three 
 months." It was extended from time to time 
 until July, 1807, and on the 31st of that month, 
 a license was granted to B. & K., for them- 
 selves and other British merchants to export 
 prize wines. Held, the license to export pro- 
 tected only the property of British merchants; 
 that Van Eyck's residence in England having 
 terminated, he ceased to preserve the charac- 
 ter of a British merchant; hence the insurer 
 was discharged. Wcurin v. Scott, 4 Taunt., 
 605. 
 
 18. On American ship Washington, from 
 Congo River to Charleston. There was an 
 
645 
 
 ILLICIT TRADE. 
 
 6iQ 
 
 What is illicit trade. 
 
 agreement between her owners and the owners 
 of the ship Corydon, that the latter should, on 
 the coast of Africa, deliver to the former, 
 arms and gunpowder, which the Corydon had 
 taken for traffic on the African coast, which 
 agreement was carried oat. ffeld, it was a 
 fraudulent agreement, and therefore the policy 
 was void. Qibion «. Seniee, 5 Taunt, 433 ; s. 
 c, 1 Marsh., 119. 
 
 19. An importation from a hostile port by 
 an alien enemy, resident there, may be legal- 
 
 ■ ized by a license tn another person on behalf 
 of a British merchant, for a person not named ; 
 but tlie insured must prove by what authority 
 he applies the license to the adventure. It is 
 not enough to show that the ship's name was 
 indorsed on the license in the hostile port. 
 Robinson v. Morris, 5 Taunt, 720. 
 
 20. A license to export, limited to Septem- 
 ber 10th. She cleared at London on the 9th, 
 but did not get her clearance at Gravesend till 
 the 12tb. No evidence was given to account 
 for the delay. Beid, the plaintiff was not en- 
 titled to recover. WiUiams o. Marshall, 6 
 Taunt, 390; s. c, 1 Moore, 168; 7 Taunt, 468; 
 2 Marsh., 92; Talloeh v. Boyd, 7 Taunt, 473; 
 s. c, 1 Moore, 174; 1 Holt N. P., 487. 
 
 21. On goods at and from h/er ports of load- 
 ing in the river Platte to London. Held, ille- 
 gal voyage under 9 Ann., ch. 21. CotBte v. 
 Barber, 4 Camp., 100. 
 
 22. The order for insurance was made 
 September Sd. A license procured October 
 7th to remain in force six months. The pol- 
 icy was made November 20lh at and from 
 Riga to Great Britain. She commenced to 
 load September 10th, and sailed October 
 3d. ffeld^ an adventure which commenced 
 September 10th, was not legalized by a license 
 dated October 7th. Henry e. Staniforth, 4 
 Camp., 270. 
 
 23. On ship and cargo, from Virginia to 
 Great Britain. She was American built, but 
 owned by British subjects, and by them char- 
 tered to a British subject The cargo was the 
 produce of the United States. Held, the voy- 
 age was illegal, because the act was confined 
 to ships owned by Americans; that the im- 
 portation was illegal, because the register 
 act prevented an American built ship from 
 being considered as British ship. Campbell 
 V. Innes, 4 B. & A., 424. 
 
 24. Timber laden at a British port in North 
 America. She sailed after September 1st, and 
 
 before May 1st, viz : September 14th. Part of 
 the cargo was loaded and remained upon 
 deck contrary to the act 16 and 17 Vict, 
 ch. 107, sees. 170, 171 and 173. Held, though 
 the master violated the provisions of the 
 statute, the policy was valid, unless the in- 
 sured, at the time of effecting it, was privy to 
 the act of the master. Cunard «. Hyde, El. 
 B1.& El., 670; s. c, 27 L. J. Q. B., 408; 5 
 Jur. (N. S.), 40. The plea was afterward 
 amended, and it was averred that the insured 
 were privy to the illegal loading, and it was 
 held, that no recovery could be had upon the 
 policy. 8. c, 3 El. & El., 1 ; s. c. 29 L. J. Q. 
 B.,6;6 Jur.(N.S.),14. 
 
 25. Part of the cago, including the goods 
 insured, were prohibited under the act of 16 
 Geo. Ill, ch. 5 ; but there had been a procla- 
 mation by Sir Wm. Howe, allowing the entry 
 of such goods at New York. Held, the policy 
 was void. Johnston o. Sutton, 1 Doug., 354. 
 
 26. Swedish ship insured from a port in the 
 East Indies to Gottenburg. A portion of the 
 cargo was laden at a British port conti'ary to 
 thu navigation laws. Held, it was unlawful 
 and therefore no recovery could be had on it 
 Chalmers v. Bell, 3 B. & P., 604. 
 
 27. It is competent for insurers of ships 
 trading to the East Indies in contravention of 9 
 & 10 W., 3, to avail themselves of the illegal- 
 ity of such trading in an action brought on 
 the policies. Camden v. Anderson, 1 B. & P., 
 372; 6 Term, 723; 5 id., 709. 
 
 28. On goods from Rotterdam to Hull, 
 " with liberty to touch and stay," etc. She 
 was the property of subjects of Prussia; 
 captured by a French ship. The property was 
 purchased for insured by their agent at Rot- 
 terdam. Before the purchase of the goods at 
 the time the policy was subscribed, and be- 
 fore the ship's departure from Rotterdam, 
 hostilities had commenced and existed be- 
 tween the United Provinces and Great Britain. 
 Held, trading with an enemy without the 
 king's license was illegal. Fotts o. BeU, 8 
 Term, 548; reversing s. c, 2 Esp., 713. 
 
 29. She was insured at and from A. to B. 
 Her traffic at A. was unlawful. Held, the in- 
 sured could not recover for a loss happening 
 between A. & B. Bird v. AppeUon, 8 Term, 
 563. 
 
 30. Trading with an enemy's country is 
 illegal, and no insurance with respect to it 
 is valid, unless authorized by license, which 
 
 323 
 
647 
 
 ILLICIT TRADE. 
 
 648 
 
 "What is illicit trade. 
 
 the common law 'permits the sovereign to 
 grant; but whoever would draw to himself 
 the protection of a license must show a com- 
 pliance with its terms. In this case, the li- 
 cense required a bond conditioned that the 
 ■goods should be exported to the places pro- 
 posed and no other, which was never made. 
 Held, the license did not protect the voyage, 
 and it consequently was illegal, and the in- 
 surance void. Vandyck v. Whitmore, 1 East, 
 475 ; VanJia/rthals v. Halbed, id., 486 n. 
 
 31. "Warranted an American ship." The 
 treaty between France and America required 
 ships of either nation to be furnished with a 
 passport expressing the habitation of the 
 commander. She had one to G. D., com- 
 mander of the ship called the M. P., of the 
 town of P. Held, the town of P. was appli- 
 cable only to the ship, for it was the last ante- 
 cedent; hence it was not in accordance with 
 the treaty, and did not entitle the insured to 
 recover upon a policy made upon the ship. 
 Baring v. Ohristie, 5 East, 393. 
 
 32. The produce of the British West Indies 
 could not lawfully be shipped to Gibraltar. 
 The ship and a cargo of West India produce 
 were insured from Trinidad to Gibraltar and 
 lost in the outer road off Gibraltar. Held, the 
 insured could not recover for the loss of the 
 cargo or even the return premium, because 
 the voyage was illegal. Lubbock v. Potts, 7 
 East, 449. 
 
 33. " On cargo, as shall be hereafter speci- 
 fied." It consisted of hardware and naval 
 stores, the property of one person. The naval 
 stores were less than £600. The whole sum 
 was £10,000. The exportation of naval stores 
 was prohibited, and the ship in which they 
 were laden became forfeited, was captured, 
 recaptured and condemned. Held, it was an 
 illegal act to sail with such stores on board, 
 and the policy was void on the whole. Parkin 
 V. Dick, 11 East, 502; 8. c, 2 Camp., 221. 
 
 34. The king cannot, by license, sanction 
 the importation of enemy's property by 
 neutral ships, for that is forbidden by the laws 
 of the land. Shiffner n. Gordon, 12 East, 296. 
 
 35. A general license, dated three months 
 prior to the ship's sailing, directed to R. S. 
 and other British merchants, conditioned that 
 it should be delivered up when the ship should 
 enter any port in the United Kingdom, was 
 oflFered to support a policy on goods bound to 
 enemy's port. Held, it was not sufficient 
 
 324 
 
 unless evidence were given to account for its 
 possession, and to show a lawful user con- 
 necting the license with the particular ad- 
 venture. Barlow v. Melntoah, 12 East, 311. 
 
 36. She sailed from London with license, 
 carried simulated papers representing that 
 she sailed from Bergen in Norway. Sweden 
 was at war with Russia. She arrived at Got- 
 tenburg, proceeded to Riga, where her papers 
 were taken away, sent to St. Petersburg to be 
 examined, and her hatches sealed down. She 
 was condemned for having simulated papers. 
 Held, the loss was caused by an act of the 
 insured done without insurer's leave. Hor- 
 neyer t. LiahiTigton, 15 East, 46; 3 Camp., 85; 
 Omaell en. Vigne, 15 East, 70. 
 
 37. A license in admiralty described her as 
 bound on a voyage to Gibraltar. She sailed 
 with instructions to make the best of her way 
 to Paflermo without touching at Gibraltar, 
 unless ordered into the bay by cruisers. Held, 
 it was fraudulent and void, and did not protect 
 an insurance made upon cargo to Palermo, 
 though she did, in fact, go to Gibraltar, being 
 driven there by stress of weather against the 
 master's intentions. Ingham t, Agnem, 15 East, 
 517. 
 
 38. A license to import cargo, issued to 
 certain persons, will not warrant an importa- 
 tion by others, unless tho latter can connect 
 themselves with the parties licensed. Bu»k v. 
 Bell, 16 East, 8. 
 
 39. A license to a London merchant on be- 
 half of himself and other British and neutral 
 merchants, to export to the ports in the Baltic 
 not under blockade. The property belonged to 
 Russian subjects, was seized and confiscated 
 in a Russian port by commissioners appointed 
 by the Russian government. Held, the license 
 did not protect the property of Russian sub- 
 jects, but that it protected separate and dis- 
 tinct portions of the cargo, the property of 
 citizens of Hamburg. Hagedom v. Baeett, 2 
 Mau. & Sel., 100. 
 
 40. The license was procured three days 
 after the vessel sailed. Held, the voyage was 
 illegal. Hentig «. Staniforth, 5 Mau. & Sel., 
 122. 
 
 41. On cotton-wool in Spanish ships from 
 New Orleans to Great Britain, which country 
 and the United States were at war. Held, the 
 policy was void, and it was not any consider- 
 ation to support an action for the premium. 
 Jenkins v. Power, 6 Mau. & Sel., 382. 
 
6i9 
 
 INCREASE, OR CHANGE OF BISK. 
 
 650 
 
 Of matter that does not vitiate. 
 
 V. Construction. 
 
 1. "On all lawful goods against all risks." 
 Held, it included all goods which might be 
 lawttally exported from the United States, 
 though contraband of war and owned by a 
 suhject of one of the belligerents. Skidmore <o. 
 Veidoit]/, 2 Johns. C, 77. 
 
 2. Stipulated : " Free from any charge, 
 damage or loss, which may arise in conse- 
 quence of engaging or having been engaged 
 in illicit trade at any time whatsoever." Held, 
 insured took the risk of seizure for illicit trade 
 at any distance from shore, where by the law of 
 nations, such seizure could be rightfully made 
 (citing The Apollon, 9 Wheat, 362). OucuUu v. 
 Louaiana State Ins. Co., 17 Martin (La.), 464. 
 
 INCREASE, OR CHANGE OF RISK. 
 
 I. Of jiattek that does not vitiatb. 
 
 II. vttiatk. 
 
 III. Questions for the jury. 
 TV. Op the etidexck. 
 
 V. Of Construction. 
 VI. Of Waiver. 
 
 I. Of mattee that does not vitiate. 
 
 1. On a cotton factory. Stipulated: "If 
 the risk shall be increased in any manner 
 within the control of the insured, the policy 
 shall be void." There was a wooden bulk head 
 at the pond from which water to drive the 
 wheel and pump was supplied. Being de- 
 cayed and in bad condition, it was removed 
 by the insured, and one of stone, different in 
 size and form, substituted. Several days were 
 required for this work, and while the water 
 was diverted, the fire occtirred. The old bulk 
 head might have been taken out and replaced 
 by one of similar materials in one day. Held, 
 where there is no express provision in the 
 contract involving a relinquishment of the 
 right to perform the ordinary acts of owner- 
 ship, such as are usually exercised by owners 
 over their own property, or restricting the 
 party insured as to what he may do upon his 
 own property, he has the right to make any 
 repairs required to render the premises useful 
 
 for the purposes to which they are devoted ; that 
 the substitution of the new bulk head was re- 
 pairs, though the materials and size were not 
 the same as the old. Toumsend v. Northwest- 
 ern Ins. Co., 18 N. T., 168. 
 
 2. Stipulated: "To be void if the risk shall 
 be increased by any means whatever." The 
 dwelling house was occupied by Mrs. H. and 
 two children, and a number of other persons 
 resided with her as boarders, an average of 
 ten. Held, not evidence that the risk was in- 
 creased. ManUy o. Ins. Co. of North America, 
 1 Lans., 20. 
 
 3. A building insured as "A shoe manu- 
 factory." Held, the drawing of a lottery, with 
 the consent of insured, did not affect the pol- 
 icy. Boardman «. Merrimae Mutv/d Fire Ins. 
 Co., 8 Cu=ih., 583. 
 
 4. The acts of the lessees, though they in- 
 creased the hazard, are no defense to an action 
 brought by the insured for the loss, unless 
 they were done with the consent of the in- 
 sured. Sanford f>. Mechanics Mutual Fire Ins. 
 Co., 12 Gush., 541. 
 
 5. The policy prohibited using the building 
 for purposes other than those mentioned in 
 the application. The sheriff levied an execu. 
 tion, and sold part of the goods. Held, the 
 use of the building was within the control of 
 the insured; but the selling of the goods at 
 auction in it did not of itself enhance the risk. 
 .8»e« o. Tower, 1 Gray, 426. 
 
 6. The tenants of insured kept straw, which 
 materially increased the risk. Held, it did not 
 avoid the policy. White v. Mutual Fire Ass. 
 Co., 8 Gray, 566. 
 
 7. Stipulated: "If the situation or circum- 
 stances affecting the risk shall be so altered 
 or changed as to increase it, the policy 
 shall be void." A dummy engine had been 
 used near the premises insured as often as oc- 
 casion required. Held, subsequent use of the 
 engine, though it increased the risk, was not 
 to be deemed an alteration or change affecting 
 the policy. Commonwealth v. Hide and Leather 
 Ins. Co., 112 Mass., 136. 
 
 8. It was insured as a paper mill. The rag 
 cutter and duster were displaced, and a pair 
 of stones put in their place, and used for grind- 
 ing. In the conditions annexed, grist mills 
 were not among the risks enumerated hazard- 
 ous or extra hazardous, but they were in the 
 memorandum relating to special risks, among 
 which were paper mills. The jury found spe- 
 
 825 
 
651 
 
 INCREASE, OB CHANGE OF RISK. 
 
 652 
 
 Of matter that does not vitiate. 
 
 daily that using the stones for grinding did 
 not increase the hazard. Held, no defense to 
 the action. Wood v. Hartford Fire Ins. Oo., 
 13 Conn., 533. 
 
 9. The application stated there was one 
 stove in the house. At a subsequent time, 
 another was put in the place of an open fire. 
 Held, it did not appear that the risk was in- 
 creased. NewhcM V. Union Mutual Fire Ina. 
 Co., 53 Me., 180. 
 
 10. On a two story brick and frame build- 
 ing, " Used as a sulphuric acid factory." In- 
 sured erected a shed between two buildings, 
 for the purpose of protecting the necessary 
 apparatus and machinery. Held, if there was 
 evidence in the case tending to show that the 
 particular shed was a proper, usual, and neces- 
 sary protection for the machinery and appa- 
 ratus, the building of it did not affect the lia- 
 bility of insurer. Washington Fire Ins. Co. v. 
 Davison, 30 Md., 91. 
 
 11. The application described the premises 
 insured, as "A dwelling house with some 
 boarders." Held, it was a mere representa- 
 tion, and not an express warranty; and in- 
 sured were entitled to recover, notwithstand- 
 ing, at a time long prior to the fire, the prem- 
 ises were used for a purpose more hazardous 
 than at the time the policy was made (this 
 case admits that the New York cases are all 
 the other way ; Mead «. N. Y. Ins. Co., 7 N. 
 Y., 530; Murdock v. Chenango Mut. Ins. Co., 
 2 id., 310; Hannings v. Same, 3 Denio, 75). 
 JV«w England Fire and Marine Ins. Co. v.Wet- 
 more, 33 111., 331. 
 
 12. Alterations by the owner increasing the 
 risk were prohibited, unless an additional pre- 
 mium and deposit be settled and paid by an 
 agreement with the directors. Tenant erected 
 an addition to the house, which subsequently 
 took fire from a defect in the stove-pipe. No 
 consent or agreement had ever been obtained 
 by the directors to make the alteration. Held, 
 it was proper to tell the jury that the alteration 
 did not affect the right of the insured to re- 
 cover, if he was not aware of it, and it was not 
 communicated to him before the loss. Padel- 
 ford V. Providence Mutual Fire Ins. Co., 3 R. 
 I., 103. 
 
 13. Stipulated: "If the risk shall be in- 
 creased by the erection of buildings or by the 
 use or occupation of neighboring premises, it 
 shall be the duty of the insured to notify this 
 company thereof; and this company reserves 
 
 the right to terminate this insurance at any 
 time by giving notice of their intention to the 
 insured." Held, if the risk was increased, 
 and insurer had notice of the fact from any 
 person other than the insured, and neglected 
 to cancel it, the policy remained valid. 
 Eclipse Ins. Co. v. Schoemer, 3 Cin. Sup. Ct, 
 474. And the condition did not oblige the in- 
 sured to ascertain, at his peril, and notify the 
 company of the existence of facts which in- 
 creased the risk; that anything which did in- 
 crease it, of which he had not knowledge, and 
 could not by the lawful exercise of diligence 
 ascertain, did not affect his right to recover. 
 Ibid. 
 
 14. On brick tavern-house. Stipulated: "In 
 case the premises be altered, changed or used 
 for the purpose of carrying on or exercising 
 therein any trade, business or vocation in tho 
 conditions and by-laws annexed, so as to in- 
 crease the hazard, so long as the same shall 
 be appropriated, applied or used, this policy 
 shall cease, and be of no force or effect." 
 Insurers pleaded that the plaintiff had posses- 
 sion of the building next east and south, aud 
 adjoining the building insured; that the same 
 was used by the tenants of the insured, wiXh 
 his consent, for the purpose of manufacturing 
 laths and spokes, which increased the risk of 
 loss by fire to tho building- inrared. Held, the 
 plea was no answer to the action, for in the 
 absence of all stipulations in the contract on 
 the subject, the general maxim, sic utere tuo, vi 
 alienum non ladas, must govern the rights of 
 the parties. Miller v. Western Farmers Mut. 
 Ins. Co., 1 Handy, 308. 
 
 15. A shed was erected adjacent to the 
 premises insured, which increased the hazard. 
 The policy stipulated, if the risk should be 
 increased by the erection of buildings, or by 
 any other cause, the company might rescind 
 the contract. HOd, the increase of risk did 
 not vitiate the contract; the insurer ought to 
 have rescinded, if the risk was increased. 
 Commercial Ins. Co. «. MehJman, 48 111., 313. 
 
 1 6. The fact that carpenters are erecting a 
 building adjoining, and thereby increasing 
 the risk of that insured, does not affect the 
 policy. Southern Insurance and Trust Co. v. 
 Lewis, 43 Ga., 587. 
 
 1 7. " On buildings, part of the lower story 
 used as a stable, coach-house and boiler-house ; 
 no steam engine employed on the premises ; 
 the steam from said boiler being used fyx. 
 
653 
 
 INCREASE, OR CHANGE OF RISK, 
 
 654 
 
 Of matter that vitiates. 
 
 heating water and warming the shops. Melt- 
 ing tallow by steam in said boiler-house, and 
 the use of two pipe-stoves in said building are 
 allowed. Warranted tliat no oil be boiled nor 
 any process of japanning leather be carried 
 on therein, nor in any building ai^oiuing 
 thereto." Stipulated : " If, atter the insurauce 
 ghall have been effected, the risk shall be in- 
 creased by any alteration of circumstances, and 
 the same shall not be indorsed on the policy by 
 an agent of the company, and a higher pre- 
 mium paid if required, such insurance shall 
 be of no force." It was a special risk. After 
 the policy was effected, a steam engine was 
 put up into the stable, supplied with steam 
 from a boiler insured by the policy, of which 
 insurers had not any notice; but the jury 
 found specially that the risk was not increased. 
 Held, insured was not bound to give notice of 
 the alteration unless the risk was increased ; 
 that as it was found that no increase of risk 
 had occurred, the plaintiffs were entitled to 
 judgment (reversing s. c, p. 330). Stokes v. 
 Cox, 1 H. & N., 533; 3 Jur. (N. 8.), 45; 26 L. 
 J. Ex., tl3; Baxendaie v. Harding, 4 H. & N., 
 445; 28 L. J. Ex., 236. 
 
 . 18. "On granary, etc., and kiln for drying 
 corn, in use, communicating therewith." Stip- 
 ulated: "To be void, unless the buildings are 
 accurately described and the trades carried on 
 therein specified ; and any alteration or risk 
 of fire increased shall be noticed and in- 
 dorsed, or the policy shall be void." Insured 
 permitted bark to be dried in the kiln grates, 
 which was the cause of the flre. Held, no 
 violation of the contract, though a higher rate 
 of premium would have been charged for in- 
 suring the premises as a bark kiln. Shaw v. 
 Sobberds, 6 A. & E., 75; 1 N. & P., 279; 6 L. 
 J. (N. S.), K. B., 106. 
 
 19. The terms of the policy prohibited any 
 increase of risk within the control of the in- 
 sured. Insurer pleaded the risk was increased 
 by means within control of the insured. It 
 appeared that the tenant made alterations 
 which increased the risk. Heid, the plea was 
 not supported, for though the landlord had 
 the right to enter and determine the lease be- 
 cause of the alterations, he was not bound to 
 do so ; that tlie alterations could not affect the 
 rights of the insured, unless they were made 
 with his knowledge and consent. Heneker v. 
 British American Ass. Co., 14 U. C. C. P., 57. 
 
 20. The jury found that erecting a chimney 
 
 increased the risk, but that in other respects 
 It was diminished. Held, this case was dis- 
 tinguished from Meaoker v. British American 
 Ass. Co., 14 IT. C. C. P., 57 ; hence the verdict, 
 which was for the plaintiff, would not be dis- 
 turbed. Date V. Core District Mutual Fire 
 Imr. Co., 15 U. C. C. P., 175. 
 
 21. Stipulated: "Any increase of risk after 
 effecting the insurance shall avoid the policy, 
 and no policy shall take effect until payment 
 of premium." The application was made in 
 March, 1861, and accepted, not to take ef- 
 fect until certain alterations should be made 
 in the premises described. No steps were 
 taken to complete the contract, until January, 
 1863. The risk was increased after the appli- 
 cation was made, but before payment of pre- 
 mium or delivery of policy. Held, the risk 
 was increased before the insurance was ef- 
 fected, and was no defense to the action. 
 Fourdiner o. Hartford Fire Ins. Co., 15 U. C. 
 C. P., 403. 
 
 22. The plaintiff having purchased a mort- 
 gage on furniture and other personal property, 
 took possession of the same for the purpose 
 of foreclosure, and immediately leased the 
 property to P., who remained in possession as 
 tenant until the fire occurred. The policy 
 was made to P., the mortgagor, payable in 
 case of loss to H., the mortgagee. Held, if 
 the plaintiff acted in good faith, he would be 
 protected by the provisions of Gen. Stat., ch. 
 157, sec. 3, but insurers must be allowed to 
 deduct from the damages the difference be- 
 tween the premium charged and that which 
 would have been charged had the act of 
 taking possession been made known to insur- 
 ers. Hadley ®. New Hampshire Fire Ijm. Co., 
 55 N. H., 110.. 
 
 II. Of matter that titiates. 
 
 1. If the conditions annexed to a policy 
 prohibit any increase of risk by any means 
 within the control of the insured, he has no 
 right to erect buildings on his own premises 
 which increase it, and doing so voids the pol- 
 icy, Murdoch v. Chenango County Ins. Co., 3 
 N. Y., 210. 
 
 2. On merchandise, hazardous and not haz- 
 ardous, including cabinet ware. Stipulated; 
 " To be void if the premises shall be used for 
 carrying on any trade or occupation, or for 
 keeping therein certain articles prohibited, or 
 
 S27 
 
655 
 
 INCREASE, OR CHANGE OF RISK. 
 
 656 
 
 Of matter that vitiates. 
 
 if the risk shall be increased by means within 
 the control of the insured." Part of the prem- 
 ises was used for putting together and finish- 
 ing chairs, which required a number of work- 
 men, and the keeping of certain of the articles 
 prohibited, by which the risk was increased. 
 Held, insurers were released. Appleby v. Mtor 
 Fire Ins. Co., 54 N. Y., 253. 
 
 3. Policy stipulated that the buil.'.ings in- 
 sured should not be occupied so as to increase 
 the risk. Held (upon positive proof that the 
 use of the premises as a livery stable would in- 
 crease the rate of premium a half per cent.), 
 there was a material increase of risk. Hobby 
 v. Dana, 17 Barb., 111. 
 
 4. On goods — prohibiting any increase of 
 risk within the control of insured. He rented 
 part of the premises to other persons, who 
 used the same for purposes more hazardous 
 than the risk insured. Held, an increase of 
 risk within his control. Appleby v. Fireman's 
 Fund Ins. Co., 45 Barb., 454. 
 
 5. Insured described the property in his 
 application as a dwelling house, and it was in- 
 sured as such. Held, the description was a 
 warranty that the building was a dwelling 
 house, and used as such exclusively ; that oc- 
 cupying a portion of it as a billiard saloon, 
 restaurant and bar room was a breach of the 
 warranty, if the rate of pi-emium and hazard 
 was thereby increased. Sarsfield v. Metropoli- 
 tan Ins. Co., 61 Barb., 479; s. c, 42 How. 
 Pr., 97. 
 
 6. Stipulated: "If the risk has been changed, 
 either within itself, or by adjacent buildings, 
 insured shall give notice thereof in writing as 
 early as possible to the directors, and shall 
 pay such additional premium as they shall de- 
 termine." Insured erected a small addition to 
 the store, which he intended to use as a brew- 
 ery. Notice of it was not given to the com- 
 pany. A few days before the fire occurred, a 
 quantity of hay was placed in that addition, 
 from which a cow was fed. The hay took 
 fire. Held, the verdict must be set aside, for it 
 was clear that the risk had been increased. 
 Francis v. SomeniUe Mut. Ins. Go., 25 N. 
 J., 78. 
 
 7. The charter, being part of the contract, 
 provided : " If any alteration shall be made in 
 the building, whereby it is exposed to greater 
 hazard, the policy shall be void." The ten- 
 ants put in stores which increased the risk, 
 but did not cause the loss. Held, the policy 
 
 828 
 
 was void. Merriam, «. Middlesex Mutual Fire 
 Ins. Co., 21 Pick., 162. 
 
 8. On dwelling house. The policy prohib- 
 ited any occupation or use of the premises for 
 purposes deemed hazardous or extra hazard- 
 ous, specified in the memorandum. Sail 
 makers were designated in the memorandum 
 as hazardous, and confectionery and confec- 
 tionery manufacturers, as extra hazardous. 
 The property was subject to a mortgage. The 
 mortgagee took, possession for the purpose of 
 foreclosure, and let the upper part of the build- 
 ing for a sail loft; the sail makers put in their 
 tools, but had not commenced work when the 
 fire occurred. Held, the policy was void. 
 Wetherell v. City Fire Ins. Co., 16 Gray, 276. 
 
 9. Stipulated: "Whenever a building in- 
 sured shall be altered, enlarged, or appropri- 
 ated to any purposes other than th'jse herein 
 mentioned, or the risk otherwise increased, by 
 the act or with the knowledge or consent of 
 the insured, without the consent of the presi- 
 dent first obtained in writing, this policy 
 shall be void." Held, an alteration to the 
 buildings not incidental to their ordinary 
 uses, made by the tenant with the knowledge 
 of the insured, which increased the risk 
 though it did not cause the fire, avoided the 
 policy. Lyman v. State Mut. Fire Ins. Co., 14 
 Allen, 329. 
 
 10. Stipulated: " If the situation or circum- 
 stances affecting the risk be so altered or 
 changed by or with the advice, agency or con- 
 sent of the insured, so as to increase the risk 
 thereupon, the policy shall be void." Insured 
 erected a building on the adjoining lot which 
 increased the risk. Heid, the policy was void. 
 Allen V. Massasoit Ins. Co., 99 Mass., 160. 
 
 11. Seven stoves were set up, of which no- 
 tice was given to the insurers, who refused to 
 contmue the policy, or to accept an additional 
 deposit for an increase of the risk, as by the 
 terms of the contract they had the right to do. 
 Held, insurers must be discharged. Fabyan 
 V. Union Mutual Fire Ins. Co., 33 N. H., 203. 
 
 12. Policy to S. Stipulated: "If the risk 
 shall be increased by the insured or others, 
 cither by change of circumstances, or in any 
 other way, the policy shall be void, unless an 
 additional premium is paid." Held, parties 
 have a right to frame their contracts as they 
 please, and this was a valid stipulation, bind- 
 ing upon the insured. Shqaherd v. Union Mtt- 
 ttiai Fire Int. Co., 38 N. H., 232. 
 
657 
 
 INCREASE, OR CHANGE OF RISK. 
 
 658 
 
 Of matter that vitiates, 
 
 13. Stipulated: "If the risk shall be ma- 
 terially increased, notice thereof shall be given 
 to the insurer immediately, that tlie rate of 
 insurance may be increased, or the policy can- 
 celed, at the option of either party." Held, 
 if the risk was materially increased, and the 
 insured failed to give notice of it, the policy 
 became absolutely void. Kern, v. South St. 
 Louis AfiU. Im. Co., 40 Mo., 19. 
 
 14. Stipulated : " In case of any alteration, 
 etc., to the building insured, application must 
 be made to tlie secretary, or any agent, who 
 shall examine the premises, and certify his 
 opinion whether the hazard be thereby in- 
 creased." A steam engine was put up and 
 used in the premises for nearly a year, and for 
 the purpose of showing notice to the com- 
 pany, defendant's agent testified: "PlaintifiF 
 told me. when we were fixing the papers, he 
 contemplated putting an engine into the 
 mill. I told him to leave notice with D., 
 and I would come up. Some time after, D. 
 saw a boiler passing, and supposing it was 
 going into the mill, told the agent." Further 
 evidence was given to show that other persons 
 had talked with the agent about the boiler. 
 fi«W,the evidence was insuflScient to establish 
 notice; therefore, insurers were discharged. 
 Sykes c. Perry County Mutual Fire Ins. Go., 34 
 Penn. St, 79. 
 
 15. The policy provided: " It shall be the 
 duty of insured to give notice to the secretary 
 of any material and manifest increase of the 
 risk which may have happened without his 
 agency or consent, and insurers may agree 
 with insured for such an increase of premium 
 as they deem sufi3cient to cover such increase 
 of risk, or they may withdraw such insurance 
 altogether; and, if insured shall neglect to 
 give notice, or refuse to comply with the de- 
 cision of the officers of the company, this 
 policy shall, from that time, be void." A 
 blacksmith shop was erected on land adjoin- 
 ing the property insured, within ten or twelve 
 feet of its south side, used by the owner. 
 About six or eight montis thereafter, the 
 building insured was consumed by fire, origin, 
 ating in it, and the blacksmith shop was also 
 burned by fire communicated from the store. 
 About six months thereafter, insurers made an 
 assessment on the policy in suit for losses oc- 
 curring before the flre. HeU, erecting the 
 blacksmith shop Increased the risk and 
 avoided the policy; making and collecting 
 
 the assessment did not estop insurer from 
 treating the policy as void, because a confirm- 
 ation does not strengthen a void estate; when 
 a lease is ipso facto void by the condition, no 
 acceptance of rent afterwards can give it coun- 
 tenance (citing Finch v. Throckmorton, Cro. 
 Eliz., 221). Gardiner «. Piscataquis Mutual 
 Fire Ins. Co., 38 Me., 439. 
 
 16. On dwelling house. Stipulated: "When 
 any material alteration or repairs are »bout to 
 be made in the premises, which increase or 
 vary the risk, information shall be given in 
 writing to the office, and permission obtained 
 from the directors to make such alterations or 
 repairs, and in default thereof, any loss hap- 
 pening by reason of making such repairs shall 
 not be paid or demanded. Any hazardous 
 business, trade or occupation carried on on 
 the premises, which shall increase the risk, 
 shall in like manner be notified, and permis- 
 sion obtained to carry it on, and in default 
 thereof this policy shall be void." Held, any 
 increase of risk occasioned by an alteration or 
 occupation of the premises avoided the policy. 
 Howell V. Baltimore Equitable Society, 16 Mdj 
 377. 
 
 1 7. " On brick flouring mill, engine house, 
 steam engine, and machinery thereto belong- 
 ing." The by-laws w^ere made part of the 
 contract, and they stipulated: "If insured 
 shall alter or enlarge a building, or appropri- 
 ate it to purposes other than those mentioned 
 in the policy, so as to increase the risk, the 
 same shall, ipso facto, become void, unless 
 notice thereof shall be given insurer.'' In- 
 sured commenced to make repairs and con- 
 tinued them for about three months ; but they 
 were finished a few weeks before the firo 
 occurred. The third story of the mill had 
 been used, a few weeks prior to the loss, for 
 the manufacture of tubs and churns. Held, 
 instirers were released. Harris v. Columbian 
 Mut. Ins. Co., 4 Ohio St., 285. 
 
 18. Stipulated: "Every increase of risk 
 after the insurance is made, within the con- 
 trol of the insured, shall render the policy 
 void." Held, if there were evidence tending 
 to show that the risk had been increased with- 
 in the control of insured, the court was bound 
 to instruct the jury that the policy was void. 
 Dodge County Mut. Ins. Co. v. Rogers, 12 Wis., 
 337. 
 
 19. After the policy was taken, insured 
 permitted one of his neighbors to store, in 
 
 329 
 
659 
 
 INCREASE, OR CHANGE OF RISK. 
 
 GOO 
 
 ions for the jury. 
 
 tlie upper story of the building, a large 
 quantity of loose hay. Hay, pressed in 
 bales, was expressly named and classed as 
 hazardous, and the policy stipulated that the 
 risk and danger of fire should not in any 
 manner be increased. Notice was never given 
 to insurer of the storing of the hay. Held, it 
 was an increase of risk, notwithstanding the 
 specification of hazards did not so declare it. 
 Dittmer v. Oermania Ins. Co., 33 La. An., 458. 
 20. Stipulated: "If, after the insurance is 
 effected, the risk is increased by any means 
 within the control of the insured, or if such 
 buildings shall, with the assent of the in- 
 sured, be occupied in any way so as to render 
 the risk more hazardous than at the time of 
 insuring, the policy shall be void." Preced- 
 ing this stipulation, certain hazards and use 
 of the premises were prohibited, and the use 
 to which the premises were afterwards applied 
 was not mentioned in them. Hdd, the gen- 
 eral clause was not to be restricted by the pre- 
 vious specification, that any increase of risk 
 vitiated the contract. ' Boatwright v. u^tTia 
 Ins. Co., 1 Strob., 281. 
 
 21. A description of the building as it then 
 stood was annexed to the policy. Its value 
 was therein stated at £6,000, also, " that there 
 was on the roof a reservoir containing about 
 600 gallons of water, supplied by an artesian 
 well ; that a constant stream of water could 
 be maintained on the roof by working the 
 pump in the lower story; that all the windows 
 and doors were supplied with thick iron shut- 
 ters,- so that no wood work was exposed exter- 
 nally." A third story was added at a cost of 
 £1,000, and alterations were made in the roof 
 and other parts of the building. It was con- 
 sumed in the San Francisco conflagration. 
 Hdd, the description amounted to a warranty 
 that the insured would not voluntarily do 
 anything to vary that description, so as to in- 
 crease the risk; that at the time of the loss, 
 the building did not correspond with the de- 
 scription named in the policy, and insurers 
 were released. Sillmi v. Thornton, 3 El. & Bl., 
 868; 18 Jur., 748. 
 
 22. At the time the policy was made, the 
 premises were used as a store. They were 
 subsequently used as a printing office, which 
 increased the risk. Held, the policy was void. 
 Hemey v. Mutual Fire Im. Co., 11 U. C. C. P., 
 394. 
 
 23. The policy forbade any increase of risk 
 330 
 
 within the control of insured. He erected a 
 building adjoining that insured, and put into 
 it a steam boiler for the use of the premisesi, 
 thereby dispensing with the use of stoves, 
 etc. The jury found that it increased the 
 external and diminished the internal hazard, 
 and that the whole risk was thereby dimin- 
 ished. Held, the policy was void, because the 
 external risk was increased. Heneker v. Brit- 
 ish American Ass. Co., 13 U. 0. C. P., 99. 
 
 24. Defendant pleaded an increase of risk 
 cfintrary to a stipulation of the policy, upon 
 which issue was taken. It was proved that a 
 furnace had been taken out of the buildings, 
 an addition had been made to them, a boiler 
 placed in it in which steam was generated and 
 driven into the main building. The jury 
 found that the external risk was increased 
 and the internal diminished, and the altera- 
 tions had diminished the risk generally. 
 Heid, defendant was entitled to a verdict on 
 the plea on leave reserved. Lomas n. British 
 American Ats. Co., 23 U. C. Q. B., 310; s. c, 
 Heneker v. Same, 13 id. 99. 
 
 25. On cargo, at and from Leith toGotten- 
 burg, with liberty to seek and join convoy, 
 and to carry simulated papers and a British 
 license, and to sail under any flag; and iu 
 case of loss, capture, seizure or detention by 
 any power whatsoever, to pay the loss within 
 two months after receipt of advice of it by 
 insured. A British cruiser captured her by 
 mistake and took her back to Leith but restored 
 her within thirty days. Before she could pro- 
 cure convoy, Sweden declared war against 
 Great Britain, and all importation of colonial 
 produce in any ship was forbidden. Her 
 cargo consisted of sugar. She sailed again 
 with a new license, was captured and con- 
 demned as prize of war. Held, the second 
 sailing was a different voyage from thefiist; 
 the declaration of hostilities changed the 
 risk. Maxwell d. Brown, 1 8. & D., 403. 
 
 III. Questions foe the juey. 
 
 1. If the taking of gunpowder as cargo is 
 not justified by the usage of the trade, and 
 therefore not contemplated by the parties as 
 a risk, there might be great reason to contend 
 that if it increased the risk, the loss was not 
 covered by the policy. Wooers v. Merchants 
 Louisville Ins. Co., 11 Pet., 313. 
 
 2. On fire works and merchandise, hazard- 
 ous and extra hazardous (the classification 
 
661 
 
 INCREASE, OR CHANGE OF RISK. 
 
 662 
 
 Of evidence — Of construction. 
 
 of risks annexed designated flre works as 
 specially hazardous). Stipulated: "Whenever 
 any articles subject to legal restriction shall 
 he kept in quantities greater than the law al- 
 lows, or in a manner different from that pre- 
 scribed by law, unless the use or keeping is 
 specially provided for in the policy, it shall be 
 void." A city ordinance permitted fire works 
 to be kept for sale, but prohibited works of 
 brilliantly colored fires. About a week before 
 the fire occurred, insured purchased a quantity 
 of signal lights, orworks of brilliantly colored 
 fires, sold all except a few, which remained in 
 the store at the time of the fire. Held, the de- 
 fendant was entitled to have the question, 
 whether the risk was increased, submitted to 
 the jury. Jones v. Fireman's Fund Ins. Co., 
 51 N. Y., 318. 
 
 3. Stipulated; "If the premises be occu- 
 pied or used so as to increase the risk, the in- 
 surer shall have the right to terminate the pol- 
 icy by giving notice to that effect and refund- 
 ing a ratable proportion of the premium" 
 Also : " If the risk shall be increased by any 
 means within the control of the insured, the 
 policy shall be void." Seld, the only question 
 to be submitted to the jury was. Had the risk 
 been increased? Williams v. People's Fire 
 Ins. Co., 57 N. T., 274 
 
 4. Stipulated : " If the premises shall, at 
 any time when fire happens, be occupied in 
 whole or in part for purposes considered haz- 
 ardous, the policy shall be of no force or 
 effect." The property insured was, with in- 
 surer's consent, removed into another build- 
 ing, in which alterations were subsequently 
 made. Held, the true question which ought 
 to have been submitted to the jury was, 
 whether, at the time the fire happened, the 
 building containing the property insured, or 
 any part of it, was occupied for a purpose 
 more hazardous than when the removal took 
 place, so as to make the risk different in char- 
 acter from that contemplated by the parties ; 
 that it was error to instruct, " To defeat a re- 
 covery, the defendant should have satisfactori- 
 ly shown that the fire originated in the hazard- 
 ous use of the premises by the plaintiffs, with- 
 out their authority or acquiescence." Robinson 
 «. Mercer County Mut. Ins. Co., 27 N. J., 134. 
 
 5. Insured was inquired of, as to the occu- 
 pancy of the building, and was told that in- 
 surers would not insure, if gamblers occupied 
 a part of it. Held, it was for the jury to de- 
 
 cide whether there were gamblers in it, and 
 whether the risk was thereby increased. Lyon 
 V. Commercial Ins. Co., 2 Rob. (La.), 260. 
 
 lY. Of evidence. 
 
 1. Stipulated: "If, after assurance is 
 effected on any building or goods, or if the 
 risk be increased by the erection of buildings, 
 or by the use or occupation of neighboring 
 premises or otherwise, prompt notice tliereof 
 shall be given the company by the insured, or 
 if for any other cause the company shall so 
 elect, it shall have the right to terminate the 
 insurance." At the time the policy was made, 
 a small stable stood about thirty feet from the 
 insured premises, upon land owned by a 
 third party; but it was afterwards removed 
 fifteen feet nearer the insured premises. Evi- 
 dence of that removal was excluded from the 
 jury. The fire occurred in the insured prem- 
 ises, not attributable to the removal of the 
 stable. Held, the evidence was not admissi- 
 ble, because no offer was made to show that 
 the risk was increased. Joyce v. Maine Ins. 
 Co., 45 Me., 168. 
 
 2. The application for the renewal stated tliat 
 the application and deposit note on which the 
 policy was originally predicated should con- 
 tinue in force, and that the condition, situa- 
 tion, value and hazard of the risk had not 
 been materially altered. In the body of the 
 policy the application was referred to, and 
 warranted to contain a just, full and true ex- 
 position of all facts and circumstances per- 
 taining to the condition, situation, value and 
 risk of the property, so far as known to the 
 insured, and material to the risk. Held, evi- 
 dence tending to show that the risk had been 
 materially altered by a change in the occu- 
 pancy of the building was admissible, notwith- 
 standing the statute of 1861, ch. 152. Barre 
 Boot Co. 0. Milford Mutual Fire Ins. Co., 7 
 Allen, 43; CampbeU v. Charter Oak Fire and 
 Marine Ins. Co., id., 45, note. 
 
 V. Of coNSTEuonoN. 
 
 1. The risk was taken on the report of the 
 company's surveyor. Stipulated : " Insurance 
 on property out of the cities of New York 
 and Brooklyn must be made on the written 
 representations of the applicant, and all insur- 
 ances, original or renewed, shall be considered 
 as made under the orig inal representation, in 
 
 S51 
 
663 
 
 INCREASE, OR CHANGE OF RISK. 
 
 664 
 
 Of construction. 
 
 so far as it may not be varied by a new repre- 
 sentations in writing, which in all cases it shall 
 be incumbent on the party to make, where 
 the risk has been changed, either in itself or 
 by surrounding or adjacent buildings; and if 
 at or before the renewal of any policy the risk 
 has been increased by the erection of build- 
 ings, or by the use or occupation of the prem- 
 ises insured, or of the neighboring premises, 
 and the insured shall fail to give information 
 thereof, the policy or renewal shall be void." 
 After the policy was issued, a bakery was put 
 into the building. Held, the notice of change 
 or increase of risk was required only in cases 
 where the insurance had been made upon 
 written representations. Liddlco. Market Ins. 
 Co., 29 N. Y., 184; s. c, 4 Bos., 179. 
 
 2. On certain premises known as Smith's 
 carpet factorj', and on stock wrought and not 
 wrought, and in process of being wrought, in 
 the building." The printed conditions pro- 
 hibited the use of the premises for any pur- 
 pose hazardous or extra hazardous, and for 
 any purpose specified in the memorandum of 
 special rates. The purposes enumerated in 
 the special rates were, among others, wool 
 mills, wheel-wrights, and wool waste, and gen- 
 erally all mills and manufacturing establish- 
 ments requiring the use of fire heat, not be- 
 fore enumerated. Insured suspended the work 
 of carpet making, and put in thirteen hand 
 looms for weaving army blankets ; the looms 
 being made largely of the machinery used in 
 manufacturing carpets, and the premises were 
 used for making blankets. Seld, substituting 
 the making of blankets for carpets did not 
 affect the policy, for it was not such a change 
 or different use as was contemplated by the 
 contract; that there was no warranty that the 
 use of the premises stated in the policy should 
 be continued. Smith v. Mechanics and TraAen 
 Int. Co., 32 N. T., 399 ; b. c, 39 How. Prac, 384 
 
 .9. " On the brick and frame buildings, priv- 
 ilege to be occupied as hide, fat-melting, 
 slaughter and packing houses, stores and 
 dwellings, and for other extra hazardous pur- 
 poses." A classification of hazards annexed, 
 placed the risk described under the class spe- 
 cially hazardous. Any use or occupation of 
 the premises for purposes designated hazard- 
 ous, extra hazardous, or specially hazardous, 
 was prohibited except by consent in writing. 
 A part of the premises was used for distilling 
 purposes, a risk specially hazardous. Held, 
 333 
 
 the words, " Other extra hazardous purposes," 
 must be construed to mean purposes in the 
 same class of hazardous as the risk described. 
 Beyrwlds v. Commerce Fire Ins. Co., 47 N. T., 
 597. 
 
 4. Stipulated : " If, subsequent to the ap- 
 plication, any new facts shall exist, either by 
 change of any fact disclosed in the applica- 
 tion, the erection or alteration of any build- 
 ing, the canying on of any hazardous trade, 
 the deposit of any hazardous goods in or near 
 the property insured, by the assured or others, 
 which increases the risk, or which it would 
 have been necessary to state, had it existed at 
 the time the application was made, the policy 
 shall be void, unless written notice thereof 
 shall be given the directors and their written 
 consent obtained, signed by the secretary, and 
 an additional premium and deposit paid." 
 Eeld, if an alteration increased the risk, and it 
 came within the scope of the question asked, 
 though not in the judgment of others mate- 
 rial to the risk, it must be communicated, or 
 the policy is void. CaVoert v. Hamilton Mut. 
 Ins. Co., 1 Allen, 308; Evans u. Trimountain 
 Mut. Fire Ins. Co., 9 id., 329. 
 
 5. Stipulated: " In case the buildings shall 
 be used for the purpose of carrying on any 
 trade, etc., which shall increase the risk, as 
 described in the application and survey, the 
 policy shall be void, unless the same shall be 
 agreed to by insurers by indorsement upon 
 the policy." Held, the actual prior use of the 
 property, known to insurers, was not the 
 standard by which an increase of risk was to 
 be estimated. It was to be measured by the 
 description mentioned in the application. 
 State Mutual Fire Ins. Co. «. Arthur, 30 Penn. 
 St., 315. 
 
 6. The policy provided in case of any ma- 
 terial increase of risk to the property insured, 
 such must be notified to the company, and 
 written permission obtained therefor from the 
 secretary, for which such charge as may be 
 proper must be paid. Hdd, an additional 
 risk was not the same as material increase of 
 risk, for additional risk would not defeat the 
 right of the insured to recover, unless it was 
 material. Allen «. Mutual Fire Ins. Co., 3 
 Md., 111. 
 
 7. The policy stipulated that if the risk 
 shall be changed or increased, the contract 
 shall be void ; but further on, the contract pro- 
 ceeded to prohibit the use of the premises for 
 
665 
 
 INCUMBRANCES. 
 
 666 
 
 What vitiates. 
 
 certain purposes, and then proceeded : " Then 
 and from thenceforth so long as the same shall 
 be so appropriated, applied or used, these 
 presents shall cease and be of no force or 
 effect." The premises were used for a pur- 
 pose, increasing the hazard, but that use had 
 been discontinued before the Are. Held, when 
 the improper use of the premises ceased, then 
 the policy was in full force and effect (citing 
 Lonnsbury v. Protection Ins. Co., 8 Conn., 
 459 ; Joyce v. Maine Ins. Co., 45 Me , 168). 
 jyieu) England Fire and Marine Ins. Co. v.Wet- 
 more, 33 111., 321. 
 
 8. The policy forbade any use of the prem- 
 ises which might increase th« risk, and then 
 it proceeded in these words : " Then and 
 from thenceforth, so long as the same shall be 
 applied or used, these presents shall cease and 
 be of no force or effect." Held, the keeping 
 of any of the forbidden articles did not ren- 
 der the policy void absolutely, but merely sus- 
 pended it, while the premises were so used. 
 Phanix Ins. Co. v. Lawrence, 4 Met., Ky., 9. 
 
 YI. Of waiveb. 
 
 The insurer reserved the right to cancel for 
 an increase of risk, by paying to insured the 
 nnearned premium. The risk was increased, 
 insurer's agent had notice of it, and did not ex- 
 ercise the right to cancel. Held, the forfeiture 
 which resulted from the increase of risk was 
 thereby waived, and the waiver extended not 
 only to the breach that had occurred before 
 the notice, but to those resulting from a con- 
 tinuation of the increased risk. Viele v. Oer- 
 mainia Ina. Co., 26 Iowa, 9. 
 
 INCUMBRANCES. 
 
 (See EsTOFFXL ; Pbihcipal and Agent.) 
 
 I. What vitiates. 
 II. When rN'smiBBs connot hrgb, as a 
 
 DKFKNBE. 
 
 III. What are hot. 
 
 IV. Of ooNSTKucnoN. 
 
 I. What titiates. 
 
 1. The application, being part of the con- 
 tract, provided, " If the insured shall suffer any 
 
 judgment or decree, operating as a lien upon 
 said property, or any part thereof, to pass 
 against him, the policy shall be void unless 
 he shall represent the same in writing, stating 
 in whose favor, etc., and the directors shall 
 have the right to consent to the same or to 
 cancel the policy. The defendant offered to 
 prove that several judgments were rendered 
 against the insured after the making of the 
 policy, which became liens upon the prem- 
 ises, of which they were not notified. Held, 
 it was error to reject the evidence, for if it 
 was true, no recovery could be had upon the 
 policy. Eagan «. Mutual Ins. Co., 5 Denio, 
 336. 
 
 2. In the application, the following inquir- 
 ies were propounded : " Have you the title to 
 the premises ? Are they incumbered by mort- 
 gage or otherwise? If so, for what sum, to 
 whom, and what is the value of the property 
 tlius incumbered ?" Answers : " Yes ; no 
 incumbrance; estimated value, $4,000." To 
 which was added: "The applicant hereliy 
 covenants and agrees, that the foregoing is a 
 just, full, and true exposition of all the facts 
 and circumstances in regard to the condition, 
 situation, value, and risk of the property to 
 be insured, so far as the same are known to 
 the applicant and are material to the risk." 
 Held, an incumbrance existing on the prop- 
 erty made by the insured was material, and a 
 failure to disclose it was a breach of the con- 
 tract which released the insurers. Slwemaker 
 V. &len Falls Ins. Co., 60 Barb., 84. 
 
 3. If the insured answer that there is no in- 
 cumbrance on the building, it is a material 
 representation, and avoids the policy, if the 
 evidence shows it was unture. Davenport b. 
 New England Mut. Fire Ina. Co., 6 Cush., 340. 
 
 4. Insured was required to state in the 
 printed application his interest in the prop- 
 erty. Question : " Is the property incum- 
 bered ; if so, how much ? " Answer. " About 
 $3,000." It was in fact mortgaged for |4,000. 
 HM, the policy was void. Hayward ». New 
 England Mutual Fire /»«. (7o.. 10 Cush.,444. 
 
 6. By-law of mutual company provided, 
 "The policy shall be void, unless the true 
 title of the insured, be expressed in the appli- 
 cation." Insured was but a part owner of the 
 property. Held, the policy was void. Held, 
 also, where the application states, " There is 
 no incumbrance upon the property,." and the 
 fact is, it has been sold for taxes, the policy is 
 
 333 
 
667 
 
 INCUMBRANCES. 
 
 What vitiates. 
 
 void, notwithstanding insured has the right to 
 redeem ; for the law gives the purchaser a lien 
 for the price paid with ten per cent, interest 
 and costs. Wilbur v. Bonditch Mutual Fire 
 Ins. Co., 10 Gush., 446. And the fact that the 
 insured acted honafide is immaterial. Ibid. 
 
 6. Building and stock .in trade, insured for 
 separate sums in one policy, conditioned to be 
 void, if the estate was incumbered. There 
 was an incumbrance on some of the stock, and 
 all the realty. Held, the policy was void as to 
 both subjects. Frienmuth v. Agawan Mutual 
 Fire Iru. Co., 10 Gush , 587. 
 
 7. Stipulated: "To be void, if application 
 does not contain true statements of title, con- 
 dition, situation, value and risk." Question 
 in the application : " Is the property incum- 
 bered, to whom, and what amount?" Answer. 
 " About |4,000, to A. B." There was a mort- 
 gage on real and personal property, $3,600, to 
 A. B., and another on the realty to J. P., $1,100. 
 Held, the policy was void. Brown o. People's 
 Mvt. Ins. Co., 11 Gush., 280. 
 
 8. The application was made part of the 
 contract, and it provided unless the applicant 
 shall represent truly " his title and interest 
 tlierein, and also all incumbrances, and the 
 amount and nature thereof, this policy shall 
 be void." Held, it was void, because the prem- 
 ises were subject to a mortgage, although it 
 was made before, title acquired, and not re- 
 corded till after the insurers' lien attached. 
 Pankard ®. Agaujam Mutual Fire Ins. Co., 2 
 Gray, 334. 
 
 9. In answer to a question propounded in 
 the application, insured stated that there was 
 no incumbrance on the property. There was 
 an incumbrance on it. Held, a misrepresenta- 
 tion of a fact specifically inquired of by insurer 
 cannot be deemed immaterial, for insurer, by 
 inquiring, implies that he considers it material, 
 and in making the contract, he has a right to 
 judge what is material, and to prescribe the 
 terms on which he will treat (citing 1 Phil. 
 Ins., sec. 642). Hence, insurers were dis- 
 charged. Draper v. Charter Oak Fire Ins. Co., 
 2 Allen, 569. 
 
 10. On buildings. In the application they 
 were represented as valued at $7,000, and 
 mortgaged for $2,000. There was another 
 mortgage for $800, covering this and other 
 property. Insured assigned the policy to se- 
 cure the payment of the $2,000, and the com- 
 pany assented. Held, the failure to disclose 
 
 334 
 
 the $800 mortgage was a false statement in 
 answer to a direct question, rendering the pol- 
 icy invalid. Bowditeh Mutual Fire Ins. Co. 
 t. Winslow, 8 Gray, 38; s. c, 3 id, 415; Falis 
 V. Conway Mutual Fire Ins. Co., 7 Allen, 46; 
 Tovme v. Fitehburg Mutual Fire Ins. Co., 7 
 id., 51. 
 
 11. Stipulated: " All alienations and altera- 
 tions in the ownership, situation or state of 
 the property insured, in any material matter, 
 shall make void any policy covering such 
 property, unless consented to or approved by 
 the directors in writing within thirty days." 
 Insured made a mortgage and left the policy 
 with the secretary for the consent of the direct- 
 ors. It was not obtained, because he neglected 
 to sign the assignment of the policy. Hdd, 
 a violation of the contract. Fdmands v. Mu- 
 tual Safety Fire Int. Co., 1 Allen, 311 ; Edee v. 
 Hamilton Mutual Ins. Co., 3 id., 362. 
 
 12. In reply to a question in the applica- 
 tion, the applicant said : " There are two mort- 
 gages for $2,700 in all, one for $1,150. and the 
 second for $1,550. The first mortgage had ac- 
 cumulated interest, $300, which was not dis- 
 closed. Held, the policy was void. Jacobs v. 
 Eagle Mutual Fire Ins. Co., 7 Allen, 132. 
 
 13. The application was made a part of the 
 contract, and in it insured was asked whether 
 the property was incumbered. He replied: 
 " No." The answer alleged the property was 
 subject to a mortgage of $400, and plaintiff re- 
 plied that defendants had waived the right to 
 object to the claim on that ground, and were 
 estopped to deny their liability. Held, the 
 policy was void, notwithstanding the directors 
 had authorized the secretary to settle the claim 
 of plaintiff, and that the company had paid 
 two small sums to an attorney of plaintiff's 
 creditors, which sums were charged on tbe 
 company's books against the loss. Murphy i. 
 People's Equitable Mutual Fire Ins. Co., 7 Al- 
 len, 239. 
 
 14. The policy was made to insure the in- 
 terest of a mortgagee. The premises insured 
 were subject to prior mortgages held by him. 
 Held, they ought to have been disclosed; a 
 concealment of them avoided the policj'. 
 Smith V. Columbia Ins. Co., 17 Penn. St., 253. 
 
 15. Stipulated: "If an incumbrance shall 
 be exhibited upon the property insured snffl- 
 cient to reduce the real interest of the insured 
 in the same to a sum only equal to or below 
 the amount insured ; or if it shall be levied 
 
669 
 
 INCUMBRANCES. 
 
 6T0 
 
 What -vitiates. 
 
 upon or taken into custody or execution by 
 other process at law or equity, and insured 
 shall neglect to obtain consent of the company 
 thereto, the policy shall be void." Judgments 
 were subsequently entered against insured to 
 an amount very much greater than the value 
 of the property, of which insurers had not 
 any notice. Held, they were released. Brown 
 c. ComnumwealtA Mut. Ins. Co., 41 Penn. St. 187. 
 
 16. Stipulated: "To be void if the insured 
 shall fall to disclose the amount and nature 
 of all incumbrances, or fail to secure the con- 
 sent of the company to any incumbrances 
 that may be executed upon the property, or 
 any levy of execution upon it during' the life 
 of the policy. Held, the contract assumes 
 that the risk is increased whenever thu prop, 
 erty shall be incumbered or execution levied ; 
 that there is no question for the jury as to an 
 increase of tlie risk; that a levy of two exe- 
 cutions on the personal property amounting 
 to nearly $300 was a breach of the condition. 
 Penmylvomia Ins. Go. u. Oottsman, 48 Penn. 
 St., 151. 
 
 17. Stipulated: " The representations in the 
 application shall be a warranty on the part of 
 the insured. The statement as to incum- 
 brances was untrue in fact. Held, insured 
 could not prove that this occurred by his mis- 
 take. Cooper V. Farmers Ins. Co., 50 Penn. St., 
 299. 
 
 18. The application contained the follow- 
 ing question, answer and covenant: "Is the 
 property incumbered "by mortgage or other- 
 wise?" Answer; "No." The applicants cov- 
 enanted : " The facts stated in the application 
 are a true exposition of all facts and circum- 
 stances in regard to the condition, situation, 
 value and risk of the property to be insured, 
 so far as the same are known to the applicants, 
 and are material to the risk." Held, a failure 
 to disclose the existence of a mortgage fur 
 $5,000 was a material omission, which re- 
 leased the insurers. Fatten v. Merchants and 
 Farmers Mutual Fire Ins. Co., 38 N. H., 338. 
 
 19. The defendant made a policy upon the 
 plaintiff's dwelling house, at the instance of 
 a person in the habit of taking applications 
 and forwarding them to the company. The 
 plaintiff received the policy, application and 
 premium note, but never signed the two latter, 
 nor were they ever deliverd to the company, 
 nor was any premium ever paid. The appli- 
 cation represented the property as unincum- 
 
 bered. Held, the application was a part of the 
 contract, because the policy expressly referred 
 to it; that if the property insured was incnni- 
 bered, the policy was void. Qahagan v. Union 
 Mutual Fire Ins. Co., 48 N. H., 170. 
 
 20. Stipulated: "Any incumbrance upon 
 the property hereby insured, whetlier existing 
 at the time of issuing this policy, or imposed 
 subsequently, must be assented to by the com- 
 pany; otherwise the policy shall be void." 
 Held, a judgment lien was an incumbrance 
 which vitiated the policy. Bowman ». Frank- 
 lin Fire Ins. Co., 40 Md., 620. 
 
 21. Insurer's chai-ter provided that insu. 
 ranee might be made in cases where insured 
 had a title in fee simple unincumbered ; but 
 if insured has a less estate therein, or if the 
 property is incumbered, policies shall be void 
 unless the true title and incumbrances on the 
 same are expressed therein. The property 
 was incumbered by two mortgages. Held, the 
 policy was void. Battles v. York County Mut. 
 Fire Ins. Co., 41 Me., 308. 
 
 22. When the policy was made, there was 
 a subsisting mortgage on the property insured, 
 of which insurers had notice ; but the right 
 of redemption was seized on execution against 
 insured, and sold. Held, it was an incum- 
 brance upon the estate of insured, and was a 
 violation of a condition stated in the contract, 
 which prohibited any incumbrance by sale, 
 mortgage, assignment, bond or otherwise. 
 Campbell v. Hamilton Mut. Ins. Co., 51 Me., 69. 
 
 23. The charter of a mutual insurance 
 company provided tliat none but fee simple, 
 unincumbered estates should be insured. The 
 insured failed to pay certain assessu\ents. 
 This action was brought to recover tliem, but 
 it appeared that the estate was incumbered. 
 Held, the action could not be maintained, for 
 the policy was void. Ingram^ v. Mutual Ass. 
 Soc, 1 Rob. (Va.), 661. 
 
 24. The act of incorporation created a lien 
 against the property insured in favor of the 
 insurer; and it also provided that an aliena- 
 tion of the property should avoid the policy. 
 Held, a mortgage affected the lien and an- 
 nulled the policy, but the insured continued 
 liable upon the premium note until the policy 
 was surrendered. McCulloch v. Indiana Mu- 
 tual Fire Ins. Co., 8 Blackf., 50. 
 
 26. The charter required the nature and 
 extent of the estate to be disclosed, if it were 
 less than fee simple. The premises were in- 
 
671 
 
 INCUMBRANCES. 
 
 672 
 
 Wlien msureis cannot urge as a defense. 
 
 cumbered by mortgage, which was not dis- 
 closed. SeUd, the policy was void. Addison 
 V. Kentucky Ins. Co., 7 B. Mon., 410. 
 
 26. Policy founded upon an application in 
 Which insured was asked : " Bo you own the 
 land ? Is it unincumbered by mortgage or 
 otherwise ? " Insured answered : " Tes." In 
 order to secure the payment of a large sum 
 of money, he had executed a mortgage, which 
 had not been recorded when the policy was 
 made. Seld, an incumbrance, which avoided 
 the policy. Hutching v. Cleveland Mut. Ins. Co., 
 11 Ohio St, 477. 
 
 27. Charter declared policy void, if insured 
 should fail to state in the application, any In- 
 ctmibrance on the insured premises. There 
 was a deed of trust outstanding against the 
 premises. A memorandum upon the policy 
 stated insurer would not be bound by any 
 statement made to the agent not inserted in 
 the application. Seld, it was not competent 
 for insured to prove that he mentioned to the 
 agent the existence of the trust deed, and that 
 the agent told him it was so small it need not 
 be stated. Loehner n. Home Mut. Ins. Co., 17 
 Mo., 247; 19 id., 628. 
 
 28. Stipulated: "Property mortgaged to 
 the amount equal to, or exceeding one-half its 
 value, will not be insured; and any policy 
 issued or existing on property thus mortgaged, 
 shall be null and void." In the application, 
 he was asked what incumbrances were on the 
 property insured. He answered: "$4,000." 
 He stated that he was the owner of the land 
 upon which the buildings were; that Wake- 
 man was to hold $4,000 as collateral security, 
 to pay a certain mortgage. The property did 
 not exceed in value $9,400. There were in 
 fact, two mortgages, amounting to the sum of 
 $6,050. Hdd, the policy was void. Van 
 Buren v. St. Joseph County Village Ins. Co., 
 28 Mich., 398. 
 
 29. Policy issued upon an application 
 which was filled up by the company's agent 
 from statements made by the insured. The 
 policy prohibited any incumbrance after the 
 application shall have been made and sub- 
 scribed. Insured never read the policy, being 
 ignorant of the English language, but kept it 
 in his possession for about two years. He in- 
 cumbered the property, of which insurers had 
 not any notice. Held, he was not entitled to 
 recover. Fuller v. Madison Mut. Ins. Co., 36 
 Wis., 599. 
 
 386 
 
 30. Stipulated: "Policy issued upon in- 
 cumbered property shall be void, unless the ex- 
 istence of the incumbrance is expressed there- 
 in." Held, verbal notice of an incumbrance 
 could not be received to save the forfeiture of 
 the policy. Smith v. Farmers Mutual Fire 
 las. Co., 19 Ohio St., 287. 
 
 31. The defendant pleaded false representa- 
 tion as to title ; that plaintiff represented the 
 property as unincumbered, whereas it was 
 mortgaged for £94, which was established by 
 proof. Held, the policy was void under Con- 
 sol. Stat. U. C, ch. 52, sec. 27. Meema b. Ni- 
 agara DistHct Ins. Co., 22 U. C. (Q. B.), 214. 
 
 II. When insukees cjjtnot uege as 
 
 A DEFENSE. 
 
 1 . There was a sale of the property under a 
 mortgage prior to the making of the insur- 
 ance. The question inserted in the applica- 
 tion as to mortgages or incumbrances was not 
 answered. The application was made part of 
 the policy, and the insured covenanted that 
 the matters stated in it were a true exposition 
 of all the facts and circumstances in regard to 
 the situation, condition and value of the prop- 
 erty insured so far as known to him and ma- 
 terial to the risk. Under the Minnesota stat- 
 ute, the purchaser at the foreclosure sale did 
 not acquire title unless the mortgagor failed 
 for one year to redeem the property. Held, if 
 the application was filled up by the agent of 
 insurer and was not explained to insured, and 
 insured signed it without being apprised of its 
 contents, and no inquiries were made of in- 
 sured respecting incumbrances, then insurer 
 waived any right to have a disclosure of the 
 existence of the mortgage or incumbrance 
 upon the property. Oeib v. International Ins. 
 Co., 1 Dil. Cir. C, 443. 
 
 2. The son of insured made application for 
 the insurance, and informed insurer's agent 
 that there was a mortgage on the property. 
 Held, it was notice to insurer, though not 
 mentioned in the application which required 
 it to be stated therein. Masters v. Madison 
 County Mutual Ins. Co., 11 Barb., 624. 
 
 3. Stipulated: "Applications shall be in 
 writing, according to the printed forms pre- 
 pared by the company, and must specify 
 whether the property is incumbered, and if 
 so, by what and to what amount; also, any 
 misrepresentations or concealment touching 
 
673 
 
 INCUMBRANCES. 
 
 67-i 
 
 What are not. 
 
 the risk shall avoid the policy." The appli- 
 cation represented that the property was not 
 incumbered; but it was written by defend- 
 ant's agent, who signed the plaintiff's name 
 to it, and he knew that there was a mortgage 
 on the premises when he made a prior policy 
 upon the same premises, which he canceled, 
 and for which he gave this in exchange. Seld, 
 the incumbrance was no defense to the action. 
 HM, also, judgment liens not disclosed did 
 not affect the right of the plaintiff to recover. 
 Oieea v. farmers Joint Stock Ins. Co., 57 Barb., 
 518; s. a, 10 Abb. Pr. (N. S.), 166 n. 
 
 4. The insured did not warrant against in- 
 cumbrances; the property was%ubject to mort- 
 gage and large judgment liens and mechanics' 
 liens. iTeM, it was not error for the court to 
 refuse to instruct as matter of law that the 
 failure to disclose these avoided the policy, 
 for it was a question of fact whether or not 
 the concealment was willftal and fraudulent 
 Cumberland Valley Mutual Protection Co. v. 
 Mitchell, 48 Penn. St, 374. 
 
 5. Stipulated: "If the interest of insured 
 be othej than an entire, unconditional owner- 
 ship, for the use and benefit of insured, it 
 must be so represented and expressed in the 
 written part of this policy, otherwise it shall 
 \<e void." At the time the policy was made, 
 the premises were incumbered by mortgages. 
 Hdd, no violation of the condition (citing 
 Washington Fire Ins. Co. e. Kelly, 32 Md., 
 421; Bowman c. Franklin Fire Ins. Co., 40 id., 
 620 (Ct of App. Md.). Clay Fire and Marine 
 Ins. Co. e. Beck, 5 Ins. L. J., 289. 
 
 6. On certain property, subject to a mort- 
 gage. Stipulated: "If any proceedings for 
 the sale of the property insured shall be had, 
 commenced or taken without the company's 
 consent the policy shall be void." Held, 
 where insurance is taken npon mortgaged 
 property and the insurer is notified of the 
 mortgage, he must be held to understand 
 that proceedings maybe taken at any time 
 to foreclose when the mortgage is overdue. 
 The mere commencement of foreclosure pro- 
 ceedings cannot annnl the contract There is 
 no breach of the condition till a right to 
 make the sale has been acquired. Michigan 
 State las. Co. e. Lewis, 30 Mich., 41. 
 
 7. The policy provided that it should be 
 void if the premises were incumbered, unless 
 the true title of insured and the incumbrance 
 be expressed therein. In answer to a question 
 
 23 
 
 stated in the application, insured said : " In- 
 cumbered to the amount $ ." Seld, if 
 
 insurers desired to know the amount of incum- 
 brance, they ought to have withheld the policy, 
 for it would be unjust to presume insurers 
 guilty of so great a villainy as to issue a policy 
 they knew at the time was void and value- 
 less. Bersche v. St. Louis Mutual Fire and 
 Marine Tns. Co., 31 Mo., 555. 
 
 8. Certain persons, acting as agents for sev- 
 eral companies, issued policies upon mill 
 property, and made the loss, if any, payable 
 to certain persons, who held certain incum- 
 brances upon it Held, insurers could not 
 defend on the ground that the property was 
 incumbered without notice to them, contrary 
 to the stipulations in the policies, for it was 
 the duty of their agents to report the fact, and 
 afford their principals an opportunity to can- 
 cel if they desired. Inmaranee Co. of North 
 America v. McDowell, 5* 111., 120. 
 
 III. What aee not. 
 
 1. Stipulated: "In case an incumbrance 
 shall fall or be executed upon the property 
 insured, sufiScient to reduce the real interest 
 of the insured in the same to a sum only 
 equal to or below the amount insured, and the 
 insured shall neglect or fail to obtain the com- 
 pany's consent to it, the policy shall be void." 
 A mortgage was executed by the insured to 
 secure the mortgagee against liability upon 
 certain indorsements. Held, the real interest 
 of the insured in the property was not reduced 
 by the mortgage, and that therefore the insurer 
 was liable for the loss. Viall v. Genesee Mut. 
 Ins. Co., 19 Barb., 440. 
 
 2. Policy prohibited all incumbrances. In- 
 sured had given a deposit note for another 
 policy, and the company acquired a lien upon 
 the property for the premium. But insured 
 had increased the risk, contrary to the condi- 
 tions of the other policy. Held, the other 
 policy was void, and the lien fell with it; 
 therefore, tliere was no incumbrance. Jack- 
 son c. Farmers Mutual Fire Ins. Co., 5 Gray, 53. 
 
 3. Insured was asked to state whether there 
 was any incumbrance on the property. He re- 
 replied, "None," and covenanted that any 
 untrue answer should render the policy void. 
 There was a judgment, but it was limited, and 
 did not extend to the property insured. Held, 
 
 337 
 
675 
 
 INCUMBEANCES — INDEMNITT. 
 
 676 
 
 Of construction, etc. 
 
 no incumbrance. Somerset Ins. Co. v. McAn- 
 My, 46 Penn. St., 41. 
 
 4. An incumbrance, made after the policy, 
 does not affect it. Button v. Neiui England 
 Mutual Wire Ins. Co.y 29 N. H., 153. 
 
 5. Insured stated in tlie application that the 
 property was his, and that it was not incum- 
 bered. The legal title was in the insured, but 
 some years prior thereto he had made a bond 
 to convey the premises on certain conditions 
 specified. The bond, by its owq terms, had 
 expired before the application was made ; but 
 insured had waived performance of its condi- 
 tions, and the obligee had a subsisting equit- 
 able right under the bond, neld, it was not 
 an incumbrance. Newhall v. Union, Mutual 
 Fire Ins.Co., 52 Me., 180. 
 
 6. Stipulated : " If the policy, or any inter- 
 est therein, be assigned, unless this company 
 shall assent thereto by indorsement thereon, 
 it shall be null and void." Insured executed 
 a chattel mortgage on the property, and 
 promised to keep it insured for the benefit of 
 mortgagee. Eeld, not an assignment to which 
 the company's consent must be procured and 
 indorsed. Prows v. Ohio Valley Ins. Co., 3 
 Cin. 8. C, 14. 
 
 7. There was an outstanding incumbrance 
 by mortgage, but the mortgagee had accepted 
 the personal responsibility of another person, 
 and agreeid to treat the mortgage as paid, ffeld, 
 not an incumbrance within the terms of the 
 contract. Saiokes v. Dodge County Mutual 
 Ins. Co., 11 Wis., 188. 
 
 8. All incumbrances were prohibited. In- 
 sured executed a mortgage upon the property 
 insured, but it was not stamped nor delivered 
 when the loss occurred. Seld, not an incum- 
 brance. Olmstead v. Iowa Mutual Ins. Co., 24 
 Iowa, 503. 
 
 lY. Of CONSTEUCTION. 
 
 1. The policy provided : " Reference being 
 had to the application of H. & £., which 
 forms a part of the policy, for a more particu- 
 lar description of the property insured." In- 
 sured stated, in the application, in . reply 
 to a question, that there were no incum- 
 brances on the property. The records dis- 
 closed a number of judgment liens against 
 it. Eeld, the application was a part of the 
 policy, for the purposes of description only; 
 that ma-tters stated in it wete not warran- 
 338 
 
 ties; that whether insured willfully and 
 fraudulently concealed information touching 
 the incumbrances was a question of fact for 
 the jury, for fraud is not an inference of law, 
 but one of fact. Cumberland VdUey Mutual 
 Protection Go. v. Mitchell, 48 Penn. St., 374. 
 
 2. In the application, the following ques- 
 tions were propounded: "Is the property 
 owned or operated by the applicant?" Ans. 
 " Yes." " Is any other person interested in 
 the property ? If so, state the interest." Ans. 
 " No." " Incumbrance ; is there any on the 
 property?" Ans. "Held by contract." The 
 insured was in possession under a contract to 
 purchase, having paid only a part of the pur- 
 chase money. Held, the answers must be ta- 
 ken and construed together; that taken as a 
 whole they were true, for it was fairly to be 
 inferred that the property was incumbered by 
 a lien for the purchase money in favor of the 
 vendor. Lorilla/rd Fire Ins. Co. x. MeCulloch, 
 21 Ohio St., 176. 
 
 3. Plea that the policy was made upon con- 
 dition that if the insured should, after insur- 
 ance made, incumber the property, the policy 
 should be void ; that the policy was assigned, 
 and the assignee incumbered it. Held, the 
 plea was bad, for the incumbrance was not by 
 the insured. Richardson v. Canada Farmers 
 Mutual Ins.Co., 16 U. C. C. P., 430. 
 
 4. One of the rules of the company pro- 
 vided : " No vessel which is mortgaged shall 
 be insured, unless the mortgagee give a writ- 
 ten guaranty to the satisfaction of the com- 
 mittee, for the payment of all demands on said 
 vessel. Insured subsequently mortgaged her. 
 Held, the rule did not apply to mortgages 
 made subsequently to the date of the policy. 
 Hutchinson «. Wright, 25 Beav., 444; 4 Jnr. 
 CN. S.), 749 ; 27 L. J. Chan., 834. 
 
 INDEMNITY. 
 
 1. Where there are several policies upon the 
 same property, the insured can have but one 
 indemnity, and this he may recover from any 
 one of the insurers, if it does not exceed the 
 sum insured, and those who pay have the 
 right to recover contribution from those who 
 have not paid. Cromie v. Kentucky and Loui- 
 siana Mut. Ins. Co., 15 B. Mon., 433. 
 
677 
 
 INSANITY. 
 
 678 
 
 What is evidence of — What is not evidence of. 
 
 2. Declaration on a policy of Insurance 
 stated that J. S., before his bankruptcy, sub- 
 scribed the policy, and then averred the loss 
 on the ship Defiance, valued at £2,500. Plea : 
 that the plaintiff caused a certain other policy 
 to be made on the ship valued at £3,500; in 
 case of loss or average, the adjustment to be 
 made irrespective of any other insurance for 
 account of the plaintiffs upon the same ship, 
 upon the same interest, and upon the same 
 voyage, and that the insurers thereof had paid 
 the same to the plaiutiflEs, who accepted the 
 same as the agreed indemnity for the loss. Re- 
 plication de injuria. Held, the plea was good, 
 for the payment by one insurerwperated as a 
 satisfaction for the other. Held, also, the re- 
 plication was bad because the plea admits the 
 breach, but sets up, by way of defense, matter 
 ex post faeto, namely, satisfaction from other 
 parties. Morgan c. Price, 4 Exchr., 615 ; 19 L. 
 J. Ex., 201. 
 
 INSANITY. 
 
 (See Onus Probandi; Pbesumptions ; Suicide.) 
 
 I. What is evidence op. 
 
 n. HOT EVIDENCK OF. 
 
 I. What is ettdence of. 
 
 Upon the question of insanity, it ap- 
 peared that the person insured had performed 
 a great deal of overwork ; that his health had 
 failed, his spirits were depressed ; abandoned 
 his employment and became comparatively 
 idle; hswi pains in the head ; exhibited a great 
 deal of unusual reserve in social intercourse ; 
 was restless and unable to sleep ; his counte- 
 nance became alternately flushed and pale; 
 was jealous of his brother-in-law; his sense of 
 hearing was false, suggesting what was unreal ; 
 had a restless, wild appearance, starting and 
 looking suddenly from time to time, as if in 
 expectation or fear of something approaching; 
 supposed there was an attempt to poison him ; 
 apprehended an endeavor to arrest him ; and 
 that he labored under a belief that reports 
 
 pr^udicial to his character were in circula- 
 tion. Held, proper testimony to sustain the 
 issue of insanity. Oay v. Union Mutual Life 
 Ins. Co., 9 Blatch., 143. 
 
 II. What is not evidence of. 
 
 1. "To be void in case he should die by his 
 own hand." Up to a short time before he 
 killed himself, he was a genial, sociable, and 
 apparently happy man. Suddenly, he became 
 taciturn, absent minded, moody and unhappy, 
 with severe pains in the head, restless and 
 haggard in appearance, refusing to see per- 
 sons who called on him, saying that he could 
 not sufficiently collect his thoughts. It also 
 appeared that he was greatly embarrassed, 
 financially ; had appropriated moneys intrusted 
 to him for investment ; had committed forger, 
 ies, one of which had been detected ; and that 
 he could no longer prevent the discovery of 
 others. Held, an order of nonsuit was prop, 
 erly granted; the evidence showed that his 
 condition was the result of his dishonesty. 
 McGlure v. Mutnal Life Ins. Co., 55 N. Y., 651. 
 
 2. " To be void if insured shall die by his 
 own hand." It appeared that he had caused 
 his own death by the use of a pistol ; there 
 were indications that he had taken poison. 
 He left a letter addressed to his brother, in 
 which he said he had suffered a long time in 
 the fear of becoming insane, in consequence 
 of a disease with which he was afflicted, which 
 he had endeavored to cure, but had finally 
 given up all hope of doing so, and that he had 
 endeavored to put an end to his sufferings by 
 poison, which he had carried several days. 
 He was a Spiritualist, and the disease with 
 which he was afflicted tended to produce a 
 morbid mental condition, one of the precursors 
 of insanity. Immediately preceding his death, 
 he appeared to be somewhat excited; was 
 absent minded ; beyond this there was no evi- 
 dence tending to show mental aberration. 
 Held, the evidence was not sufficient to estab- 
 lish such a condition of insanity as would 
 entitle his representatives to recover. Fowler 
 0. Mutual Life Ins. Co., 4 Lans., 203. 
 
 3. Suicide is not prima facie evidence of 
 insanity. St. Louis Mutual Life Ins. Co. v. 
 Graves, 6 Bush., 268. 
 
679 
 
 IN PORT — INSPECTION OF BOOKS AND PAPERS. 
 
 630 
 
 "When vessel shall be deemed in port — When not deemed in port. 
 
 IN PORT. 
 
 I. When vesseI/ shall be deemed in pokt. 
 
 II. NOT IN POBX 
 
 I. "When vessel shall be deemed in 
 
 POET. 
 
 1. At and from Leith to Shetland, thence to 
 Barcelona, and at and from thence to two 
 other ports in Spain, and to a port in Great 
 Britain. A prevailing plague prevented dis- 
 charge of the cargo at Barcelona, and she was 
 ordered to Tarragona, where she unloaded 
 and proceeded to Bay of Saloe, about five 
 miles west of Tarragona, to take her home 
 cargo, where she was driven ashore and lost. 
 Edd, Saloe was a port within the meaning of 
 the policy. Sea Ins. Co. o. Oavin, 5 S. & D., 
 535; 2 Scot. Jur., 239; affirmed, 2 Dow. & C, 
 129; 4 Bli. (N. S.), 578. 
 
 2. On cargo, stipulated : "The insurers take 
 no risk in port, but sea risk." She was driven 
 ashore 200 yards high and dry above high 
 water mark. Two days afterwards, soldiers 
 from a French battery came on board and set 
 fire to ship and cargo, and both were con- 
 sumed. Held, insurers were not responsible 
 for the loss, because it was a loss in port, and 
 not by perils of the sea. Patrick v. Commercial 
 Ins. Co., 11 Johns., 14. 
 
 II. "When vessel shall be deemed 
 
 NOT IN POET. 
 
 1. On ship to Nantz, France: "Warranted 
 not to abandon in case of capture or detention 
 until six months after notice thereof, or until 
 condemnation, free from seizure or detention 
 in port, and not to abandon in consequence 
 of being turned away or having been carried 
 into any British port. Two British cruisers, 
 by indorsement on her register, forbade her 
 entering any French port." In a gale, in which 
 she cut away some spars, she made for Belle 
 Isle to take a pilot, and took one about a 
 league and a half from the principal fort. She 
 lay at anchor under the protection of the fort in 
 fear of being boarded by British cruisers which 
 were off each end of the island. She was 
 boarded by an armed boat from the port, and 
 carried within pistol shot of the fort and there 
 anchored on the ground that she had been 
 340 
 
 boarded by the English. She was dismantled 
 by the French. The cargo was delivered to 
 the consignees, upon security to abide the 
 event of the trial. 6,348 livres were expended 
 about the ship's business, 705 of which were 
 incurred by the captain's going to attend the 
 delivery of the cargo; all other charges were 
 fcr the ship. Held, she was not seized in port, 
 and the insurers were liable. Watson v. Ma- 
 rine Ins. Co., 7 Johns., 57. 
 
 2. " Warranted free from capture in port." 
 She was captured within the head lands at the 
 mouth of the river, but not within the limits 
 of any port. Held, the warranty did not ap- 
 ply. Baring v. Vaux, 2 Camp., 541. 
 
 3. " Warranted in port, October 19th." She 
 was "insured from Hamburg to Vigo. She 
 was in the port of Cuxhaven, about ninety 
 miles below and outside of the port of Ham- 
 burg October 19th. Hdd, insurer was not 
 liable for anything but the premium. CoWy v.- 
 Hunter, 1 Moo. & M., 81 ; 3 0. & P., 7. 
 
 4. " Warranted free of capture or seizure in 
 port or ports." She was bound for Pillau, the 
 entrance to which was made difficult by a 
 shifting bar on which the water was too 
 shallow to admit vessels deeply laden; out- 
 side of this bar was a station called Pillau 
 Roads, where it was usual for deeply laden 
 ships to come to and lighten, then to pass into 
 the harbor. She came to anchor in the roads. 
 The pilot would not permit anything to be 
 unloaded till her papers were examined and 
 approved in the custom house. While lying 
 in the roads she was captured. Held, the 
 meaning of the warranty was, that the insurer 
 should be discharged if the enemy got into 
 port by land and took her; that when she was 
 captured she was at sea. Sroan v. Tiemey, 1 
 Taunt., 517. 
 
 INSPECTION OF BOOKS AND PAPERS. 
 
 1. The books of a corporation ar« evidence 
 against it, and their production can be com- 
 pelled by siibpcena duces tecum. McCiUlough v. 
 Talladega Ins. Co., 46 Ala., 376. 
 
 2. The insurer has a right to the inspection 
 of everything relating to the transaction in 
 dispute. If there be any doubt as to the pur- 
 chase, shipment or value of the goods, or on 
 any question as to false papers, the insurer 
 
681 
 
 INSTRUCTIONS. 
 
 682 
 
 Miscellaneous. 
 
 has the right to inspect the hooks of the in- 
 sured in relation to those matters, but he has 
 not any right to inspect as to matters not con- 
 nected with the transaction. Janson ®. Solarte, 
 3 You. & Coll., 137; 6 L. J. (N. S.), E.x.Eq., 
 75. 
 
 3. The plaintiflF applied for an order to al- 
 low her to inspect the reports made to the 
 company by the friends of the insured in re- 
 spect of his health and habits, also the report 
 of the company's medical exsminer. Seld, 
 she was entitled to inspect them. Mdhony e. 
 National Widows Life Ass. Fund, 6 L. R. 0. 
 P., 253; 40 L. J. C. P., 203; 24 L. T. (N. S.), 
 548; 19W. R.,722. 
 
 4. The court made an order that the plaint- 
 iffs answer, on afBdavit, what documents were 
 in their possession or power relating to ship, 
 voyage and alleged loss. One of the plaintiffs 
 answered, scheduling certain documents, and 
 offered to grant inspection of them. As to 
 others, namely: letters between the master 
 and the insured, they refused to allow them to 
 be inspected, ffeld, under 14 and 15 Vict , ch. 
 99, sec. 6, insured must lay before insurer 
 everything that throws light upon the trans- 
 action. Bayner v. Ritson, 6 B. & 8., 888. 
 
 INSTRUCTIONS. 
 
 1. If no evidence has been given upon a 
 particular pointy the court must refuse an in- 
 struction relating to it. Insurance Co. v. 
 Piaggio, 16 Wall., 378. 
 
 2. Whether a written application had been 
 filed with the defendants, and by them with- 
 held from the jury, was submitted by the 
 court, who said, '• If you find that fact to be 
 true, it raises a presumption against the de- 
 fendants." Held, error that must reverse, be- 
 cause there was nothing in the case to warrant 
 the submission. Burr v. Broadway Ins. Co., 
 16 N. T., 267. 
 
 3. The court instructed the jury that the 
 plaintiff was entitled to recover the amount of 
 damage actually sustained by the ftre, if the 
 jury believed that the loss had not been re- 
 paired within the time stated in the policy, 
 
 or the money had not been paid. Held, error; 
 for that was assuming that the plaintiff had in 
 all other respects complied with the condi- 
 tions of the contract. Franklin Fire Ins. Co., 
 v. Hamill, 6 Gill, 87; 5 Md., 170. 
 
 4. The court submitted to the jury the ques- 
 tion whether the risk was materially increased, 
 because the vessel did not sail till after the 
 beginning of June. Held, error, because there 
 was no evidence upon which to found the in- 
 struction. Application for insurance on cargo. 
 She was laden with mules and asses. There 
 was conflicting evidence as to whether, in 
 mercantile understanding, the word " cargo " 
 included live stock. There was evidence given 
 in behalf of insured, that a cargo of mules and 
 asses was not more hazardous than any other 
 cargo. The court instructed the jury: " Th-at 
 insured was guilty of a concealment fatal to 
 the policy, provided the jury should believe 
 that the risk was materially increased by the 
 cargo being mules instead of a dead cargo." 
 Held, error ; for the court determined the ques- 
 tion of fact for the jury, thereby throwing out 
 of the case the testimony which tended to 
 show that the term "cargo" would, according to 
 mercantile understanding, include mules and 
 asses. AUegre o. Maryland Ins. Co.. 2 G. <& J., 
 136. 
 
 5. Where there is no prayer for special in- 
 struction, the judge is answerable only for 
 errors of commission. Klein v. Franklin Ins. 
 C'j., 13 Penn. St., 247. 
 
 6. The court below charged that a certain 
 portion of the testimony did not prove what 
 the defendant claimed for it. Held, the court 
 went beyond its powers. Southern Life Ins. 
 Co. D. Wilkinson, 53 Ga.^535. 
 
 7. Insurer asked forty-six instructions, many 
 of them of great length ; a large number were 
 refused. Held, if it appears that such were 
 given as were applicable to the case, the oth- 
 ers will not be considered. Boekford Ins. Co. 
 V. Nelson, 65 111., 415. 
 
 8. The court instructed the jury that if they 
 believed the testimony of a witness named, 
 they might find for the defendant Held, no 
 error, although there was other evidence in 
 the case conflicting with his. Quin v. Nii- 
 tional Ass. Co., 1 Jones & Carey, 316. 
 
 341 
 
683 
 
 INSURABLE INTEREST. 
 
 684 
 
 What codfeis. 
 
 INSURABLE INTEREST. 
 
 (See ALrEN ATioH ; Foe Accoukt op Whom it may Con- 
 cebn; In Tbust, ob os Cohsiskmbht, or on Com- 
 mission ; TiTLB ; Wipe's Poliot.) 
 
 I. 
 
 What confers. 
 
 
 (a) Life. 
 
 
 (b) Property. 
 
 II- 
 
 What dobs hot confeb. 
 
 
 (a) Life. 
 
 
 (b) Property. 
 
 III. 
 
 What divests. 
 
 
 (a) Life. 
 
 
 (b) Property. 
 
 IV. 
 
 What dobs not divest. 
 
 V. 
 
 intbbest must be disclosed. 
 
 VI- 
 
 need not be disclosed 
 
 VII. 
 
 Who cannot insube. 
 
 ^III. 
 
 " Inteeest or no intebest." 
 
 IX. 
 
 What proof is necessary. 
 
 X. 
 
 Evidence of. 
 
 I. What confees. 
 (a) lAfe. 
 
 1. Policy on the life of H., assigned to S 
 ■with the company's consent, as security for a 
 debt. Held, the assignee could recover the 
 whole sum insured, although the debt of H. 
 was a much smaller amount ; but if H. and S. 
 confederated together to procure the policy 
 for the benefit of S., who was not nor had not 
 agreed to become a creditor of H., with the 
 view of having the same assigned thereafter to 
 S., without consideration, and not as security 
 for a debt due, or to become due, or for any 
 other purpose, such a contrivance would viti- 
 ate the policy, and no recovery could be had 
 on it, for the law will not uphold a policy 
 made or fraudulently contrived to be made for 
 the benefit of a person who has no insurable 
 interest in the risk. Swick v. Home Life Ins. 
 Co., 2 Dil. Clr. C, 160. 
 
 2. 8. obtained a policy on his life for his 
 benefit. Held, he had a right to dispose of iJ 
 in any way or to any person he pleased, and 
 the fact that his assignees had no interest in 
 his life, was no defense to the action. Valton 
 V. National Life Fund As»., 20 N. T., 32; s. 
 c, 22 Barb., 9; 40 N. T. (1 Keyes), 21 ; 4 Abb. 
 Dec, 437; 17 Abb. Prac, 268. 
 
 842 
 
 3. The creditor insured the life of his 
 debtor, but the statute of limitations had run 
 against the debt. Held, he had an insurable 
 interest. Bawls n. American Mutual Life Int. 
 Co., 37 N. Y., 283; s. c, 36 Barb., 357. 
 
 4. Policy procured by M. on his own life; 
 premiums paid by him, '' Loss, if any, payable 
 to the plaintiff." Held, the question of insur- 
 able interest could not arise, for it was in 
 effect a policy to himself, assigned by him to 
 the plaintiff. Malloryv. Travelers Ins. Co., 47 
 N. Y., 53. 
 
 5. Prior to the issuing of the policy, an as- 
 sociation was formed of persons desirous of 
 going to California to engage in mining pur- 
 suits, for their joint benefit and at their joint 
 expense, under the name of the " Brothers' 
 Mining and Trading Company of New 
 Haven." A. became a member and paid his 
 share, $200. A ship was purchased, but she 
 proved unseaworthy, and another was bought 
 and A. paid his proportion of the purchase. 
 A. assigned all his interest in the association 
 to B, together with all his right in the moneys 
 advanced, and the fimds, assets and profits of 
 the company. A. effected insurance on the 
 life of B. for $1,000. Held, he had a valid 
 insurable interest in the life of B., and could 
 recover the sum insured. Hoyt v. New York 
 Life Ins. Co., 3 Bos, 440. 
 
 6. A single woman, dependent on her 
 brother for support and education, has an in- 
 surable interest in his life. Lord v. Dall, 12 
 Mass., lis. 
 
 7. F., at twenty years of age, worked in a 
 factory in Manchester, Conn., and resided 
 with his father, who with other children 
 worked in the same factory and received the 
 wages of all, which, with his own, constituted 
 the principal support of the family. The 
 father relinquished any claim to son's ser- 
 vices in order that he might join C. in a trad- 
 ing expedition to California. C. paid $300 
 for F.'s membership in the expedition, F. 
 agreeing to pay C. one half of his earnings. 
 The father supplied F. with an outfit and pro- 
 cured this policy on his life. Held, the father 
 who supports, educates and maintains his son 
 under 21 years of age, is entitled to his earn- 
 ings, and may maintain an action for them ; 
 that by relinquishing his right to the son's 
 earnings for him to enter into the adventure, 
 by necessary implication, the father acquired 
 an interest to a share of its benefits and ad- 
 
685 
 
 INSURABLE INTEREST. 
 
 686 
 
 What confers. 
 
 vantages; the nearness or remoteness of the 
 chance was immaterial, for the parties regu- 
 lated that by the rate of premium and the 
 sum insured; the only thing necessary to take 
 the case out of a wager policy was, that in- 
 sured had some interest in the life of tlie 
 cestHi quevie. Loomia v. Sagle Life and Sealth 
 In». Go., 6 Gray, S96. 
 
 8. Insured was a creditor of D. to the 
 amount of |140. A policy was effected on 
 the life of D., in the name of the creditor, for 
 $1,000; D. paid the premiums. Hdd, the 
 creditor was entitled to recover the whole 
 amount insured ; that the creditor was inter- 
 ested in the life of D. as debtor to the amount 
 of his debt, and as to the balance, he was in- 
 terested as trustee for the widow of D. Ameri- 
 can Life and HeaUh Ins. Co. c. BobertiTutw, 2C 
 Penn. St, 189. 
 
 9. The son has an insurable interest in the 
 life of his father. Kane o. Sesene Mutual Life 
 Jns. Co., 9 Phila., 234. 
 
 10. M. and the plaintiff, togetlier with cer- 
 tain other persons, entered into an association 
 for mining and trading in California. The 
 plaintiff owned one share in the enterprise, 
 advanced $600 as capital, and procured M. to 
 go out as his substitute; who died there, but 
 the assets of the company were divided in 
 California before his death. Prior to the de- 
 parture of M., the plaintiff effected insurance 
 on his life, for the use and benefit of the 
 plaintiff, to the amount of $500. and for the 
 benefit of the life insured other $500. Heid, 
 a valid contract; for, until the legislature 
 shall interfere, the courts will adhere to the 
 common law as they find it established ; hut, 
 if that were not so, still there was sufiScicnt 
 interest proven, for it was enough if an indi- 
 rect advantage might result to the insured by 
 a continuance of the life insured (citing Val- 
 ton e. National Life Ass'n. 20 N. T., 82; s. c, 
 Angel on Ins., 326, note). Trenton Mutual 
 Life and Fire Int. Co. v. Johnson, 24 N. J., 576. 
 
 11. The mere relationship of a brother is 
 not such an interest as will support a policy 
 of life insurance; the interest required to 
 make such a contract valid must be of a pe- 
 cuniaiy nature. A father, entitled to the 
 w.ages of his minor son, has an insurable in- 
 terest in the son's life. Loomis v. Bagle Life 
 Ins. Co., 6 Gray, 396. A sister, dependent 
 on her brother for education and support, has 
 an insurable interest in the brother's life. 
 
 Lord V. DaU, 12 Mass., 115; Lewis v. Phcenix 
 Mutual Life Ins. Co., 39 Conn., 100. 
 
 12. The person whose life was insured was 
 indebted to the plaintiff upon a promissory 
 note barred by the statute of limitations. 
 Held, it was still sufficient to sustain the 
 plaintiff's insurable interest in the life of his 
 debtor. Mowry v. Home Life Ins. Co., 9 R. I., 
 346. That if the plaintiff had an interest at 
 the commencement of the policy, it was not 
 necessary for that to continue up to the time 
 the suit was brought (citing Bawls ®. Ameri- 
 can Mutual Life Ins. Co., 36 Barb., 357). Ihid. 
 
 1 3. Policy to the father upon the life of his 
 minor son, who was about to proceed to Cali- 
 fornia, and to whom he made large advances. 
 Held, if the child be injured, the parent is 
 entitled to an action ; and the parent has a 
 pecuniary interest in the child's life, which 
 the law will protect and enforce, and which is 
 insurable. MitcheU v. Union Life Ins. Co., 45 
 Me., 104. 
 
 1 4. There was a contract of marriage exist- 
 ing between insured and C, upon whose life 
 a policy was made, payable to the insured. 
 The premium was paid by her. Held, the 
 policy was not void at common law; there 
 was nothing in the case to show that it was a 
 mere wager; that a valid contract of marriage 
 between the insured and the deceased was 
 sufficient interest to maintain the action. 
 Chisholm V. National Capitol Life Ins. Co., 53 
 Mo., 213. 
 
 15. A. was indebted to various persons, 
 £80,000. B. agreed to pay tlie creditors in 
 half yearly installments, so that the whole 
 would be discharged in five years. Insured 
 was a creditor who consented to the agree- 
 ment, and insured the life of B. to the amount 
 of his debt. Held, he had a right to insure it. 
 Von Lindenau v. Desborough, 3 C. & P., 353 ; 
 7 L. J. K. B., 42; 3 M. & R., 45; 8 B. & C.,586. 
 
 16. The Anchor Co. had insured A.'s life 
 in four separate policies, £3,000 in all, for the 
 use of W. The A. Co. reinsured £1,000. The 
 A. Co. and W. agreed that W. should deliver 
 up the A. Go.'s policies, in consideration of 
 an annuity granted by the A. Co. to W. ; but 
 one of the directors of the A. Co. continued, 
 for his own benefit, to pay the premiums upon 
 one of the reinsurance policies, and after 
 death the reinsured brought suit as trustee, to 
 recover the sum reinsured. Held, when the 
 A. Co. procured the reinsurance, it had an in- 
 
 343 
 
687 
 
 INSURABLE INTEREST. 
 
 What confers. 
 
 surable interest in tlie life reinsured, which 
 was to be measured by the interest at the 
 time of effecting the policy; and this was 
 not to be reduced, because at the time of death 
 that was less than at the time the policy was 
 effected ; that if there was an interest at the 
 time of issuing the policy, recovery could 
 be had in exact conformity with the words 
 of the contract itself. Dolby v. India and 
 London Life Aag. Co., 15 C. B., 363; see 
 this case, 4 De&. & S., 463; 24 L. J. C. 
 P., 3. 
 
 1 7. H. granted an annuity to the plaintiffs 
 late brother, which he bequeathed to persons 
 not parties to this insurance. The plaintiff 
 was the executor, and had been directed by 
 the deceased to make the insurance on the 
 life of H. Bdd, he had such an interest in 
 the life as would enable him to maintain the 
 action. Tidawdl «. Anleerttein, Peakes N. P. 
 C, 204. 
 
 18. B. purchased a legacy to which D. 
 would be entitled on attaining the age of 
 thirty. B. insured the life of D. for two years, 
 April 9, 1850. D. attained the age of thirty 
 years, January 16, 1853, and died January 22, 
 1852. The insurers resisted the claim, on the 
 ground that the plaintiff had ceased to have 
 any interest in the life of the person insured. 
 Held, policies on fire and marine risks are 
 contracts to indemnify against a loss which 
 the parties may sustain in consequence of the 
 perils contracted against; that the contract of 
 life insurance is not a contract of indemnity, 
 but an agreement for a certain consideration 
 from insured to insurer; that the latter will 
 pay to the former at the death of the person 
 named, a certain sum of money (citing Dalby 
 ■II. India and London Life Ass. Co., 15 C. B., 
 365). Law ®. London Indisputable Life Policy 
 Co., 1 Jur. (N. S.), 178; 24 L. J. Ch., 196; 1 
 Kay & J., 223. 
 
 19. Plaintiff effected a policy on the life of 
 A., his wife's daughter by a former husband. 
 The only interest proved was, that before 
 A. married and while a minor, she boarded 
 and lodged in his family, from 1816 to 1833. 
 There was not any averment of interest in 
 tlie declaration. Held, it was not necessary 
 to decide whether an insurance on life in 
 Ireland must be on interest; that the plaint- 
 iff was entitled to judgment. Shannon «. Jfa- 
 gera, Hayes, 536. 
 
 (b) Property. 
 
 20. The person for whose benefit the in- 
 surance was made was surety for the prop- 
 erty restored, pending the issue of an ap- 
 peal, taken by the captor, from the decree 
 of restitution. Held, he had an insurable in- 
 terest in it. Russell «. Union Ins. Co., 4 Dall., 
 421. 
 
 21. Insured advanced a sum of money to 
 the ship owner, in consideration of which he 
 had a right to fill up three-eighths of the ton- 
 nage of the ship for that voyage with goods of 
 his own or the property of others. He in- 
 sured " on freight advanced here, and which, 
 by agreement, is valued at $13,500." Held, he 
 had an insurable interest, and it was well 
 described. Sansom v. Ball, 4 Dall., 459. 
 
 22. Five persons, trustees of a religious 
 society, held the legal title to the church 
 building in trust for the society. One of the 
 trustees was the agent for two insurance com- 
 panies. He made this policy upon the build- 
 ing to A., one of the trustees; loss payable to 
 M., the treasurer of the society, who paid the 
 premium from his own private means. The 
 society was indebted to A. $15,000, and he was 
 indebted to M. to a large amount. Held, if he 
 insured the property with the assent of his 
 cotrustees, for the benefit of the cestui que 
 trust, insurers cannot complain that the char- 
 acter of the interest was not incorporated ia 
 the policy, unless that interest would have 
 had an influence on them not to underwrite at 
 all, or not to underwrite except at a higher 
 premium than that actually paid ; and whether 
 that would have enhanced the premium was a 
 question for the jury. Insurance Co. v. Chase, 
 5 "Wall., 509. 
 
 23. Advances made in a foreign port to 
 a vessel to equip and enable her to procure a 
 cargo for her port of destination, are prima 
 facie made on the vessel's credit, and as such 
 are a lien on the vessel, and give an insurable 
 interest in her to the lender. Insurance Co. v. 
 Baring, 20 Wall., 159. 
 
 24. A person in possession had a contract 
 for a deed for part of the premises and a deed 
 of another part, and he insured the whole. 
 Held, he had an insurable interest. Columbian 
 Ins. Co. V. Laierence, 2 Pet., 25. 
 
 25. Policy to one on freight. To establish 
 his right, he produced a bill of sale to himself 
 
 344 
 
689 
 
 IKSUKABLE INTEREST. 
 
 690 
 
 What confers. 
 
 and another, and her register to himself and 
 the same. Held, he was entitled to recover a 
 luoiety of her freight and not the whole. Ohi 
 e. SagU Ins. Co., 4 Mason, 173. 
 
 26. K. mortgaged the property to S., and it 
 -nas foreclosed. C. procured judgment against 
 K. The property was levied upon and bought 
 by C, and he insured it for one year, which 
 ■was subsequently renewed for another, with- 
 in which (eighteen months after the execu- 
 tion of the policy), the premises were burned. 
 Sdd, he had an interest which authorized 
 him to insure it Curtis v. Home Ins. Co., 1 
 Bissell, 485. 
 
 27. Under a general policy on goods, if the 
 insured have an interest in them, that is suffi- 
 cient, and it is immaterial whether it is a 
 distinct or an undivided share. Lawrence v. 
 Van H&rne, 1 Caines, 276. 
 
 28. One who purchases a ship, paying part 
 of the purchase money, has an insurable in- 
 terest in her, notwithstanding she is to re- 
 main in the name of the vendor till all of the 
 purchase money is paid. Ketiney v. Glarkson, 
 1 Johns., 385. 
 
 29. The insured purchased the property 
 and insured it, bat he had not paid all the 
 purchase monej', and was not to have a deed 
 of conveyance until all was paid. The 
 property was consumed before all was 
 paid. Hdd, he had an insurable interest 
 MeGivney o. Plumix Fire Ins. Co., 1 Wend., 
 85. 
 
 30. Insured was in possession of the land 
 on which the insured buildings were erected, 
 but his wife had the legal title, acquired from 
 J., to whom plaintiff had, at the same time, 
 conveyed the land without consideration, for 
 tlie purpose of having him reconvey to his 
 wife. It was verbally agreed between plaintiff 
 and his wife at the time the conveyance was 
 executed, that she should convey to him a life 
 estate. The conveyance was executed by the 
 wife, but insured remained in possession, cul- 
 tivated the land on his own account, and used 
 the proceeds in the support of his family. 
 Held, it vested in the wife a remainder, de- 
 pendent upon a precedent estate for life in the 
 husband, which gave to him an insurable in- 
 terest in the premises. Bedfield v. Holland 
 Purchase Int. Co., 56 N. Y., 354. 
 
 31. Plaintiff leased to B. certain premises, 
 with the right to purchase, at a price stated, 
 the term to commence April 1, 1861. B. paid 
 
 an installment of rent in advance, and, intend- 
 ing to make improvements, procured a policy 
 for $3,000, in the name of plaintiff. " Loss, 
 if any, payable to B.," which was intended for 
 the benefit of lessor and lessee, of which de- 
 fendants were fully notified. B. took posses- 
 sion, but made no improvements, and a loss 
 occurred to the amount of $3,100. B. assigned 
 his interest in the policy to plaintiff. Held, 
 the plaintiff was entitled to recover to the full 
 extent of tlie damage. Hand v. Williamshurgh 
 City Fire Ins. Co., 57 N. ¥., 41. 
 
 32. The only interest which the insured 
 had in the premises was an agreement made 
 by N., in which she admitted as due, the sum 
 of $700, and $35 per month, from July 14, 1863, 
 all of which she agreed should be a lien upon 
 her property. Insured afterwards intermar- 
 ried with N., and insured her property. Held, 
 a valid insurable interest. Bohrlach v. ^tna 
 Ins. Co., 1 N. Y. S. C, 839. 
 
 33. The property was insured to the plaint- 
 iff as owner. He had the equitable title. 
 Held, suflScient, so long as there was no mis- 
 representation or concealment, either as to tbo 
 title or incumbrances. Z>ohn d. Farmers 
 Joint Stock Ins. Co., 5 Lans., 375. 
 
 34. Common carriers have an insurable in- 
 terest in the goods they carry, whether they 
 carry by their own vessels or by vessels char- 
 tered. Chase D. Washington Mut. Ins. Co., 
 12 Barb., 595. 
 
 35. B. had a lease of the premises, and 
 agreed to pay the necessary premium to insure 
 them for the sum of $5,000. He subsequently 
 agreed to keep the premises insured for the 
 plaintiff, and effected this policy on "his 
 building, loss, if any, payable to plaintiff." 
 Held, the words " his building" did not war- 
 rant that he had title to the property ; that if 
 he had any insurable interest he could main- 
 tain the action to that extent; that his agree- 
 ment to keep the premises insured to the 
 amount of $5,000 gave him a right to recover 
 that sum. Lawrence v. St Marks Fire Ins. Co., 
 43 Barb., 479. 
 
 36. Insured contracted to purchase, and 
 the owner contracted with the insured to sell 
 the property. SOd, he had the right to insure 
 it Manley f>. Insurance Co. of North America, 
 1 Lans., 20. 
 
 3 7. A. borrowed money of B. to buy a cargo, 
 and assigned it to B., made an invoice of it 
 and took a bill of lading in B's name. B. was 
 
 345 
 
691 
 
 INSURABLE INTEREST. 
 
 692 
 
 What confers. 
 
 to take his debt from the proceeds, if sufficient, 
 and the surplus, if any, to be paid to A. In 
 case of loss, B. to receive the insurance, which 
 was made in A.'s name ; and in either case, if 
 B. should not be fully paid, A. was to be ac- 
 countable to B. for the balance, the assignment 
 and insurance being a pledge or security for 
 the debt, ndd, A. had an insurable interest 
 in the cargo, that he was entitled to recover, 
 though the nature of it was not made known 
 to insurer. Locke «. North American Ins. Co., 
 13 Mass., 61. 
 
 38. The hirer of a vessel who contracts with 
 the owner to make insurance has an insura^ 
 ble interest in her, which need not be disclosed 
 to insurer, unless questioned about it. Sartlet 
 V. WaUer, 13 Mass., 367. 
 
 39. The insured has an insurable interest 
 in the thing insured, notwithstanding he has 
 assigned It, in trust, for the payment of his 
 debts ; and that interest extends to the whole 
 value of the thing insured at the time of the 
 loss. Lazarus v. Commonwealth Ins. Co., 19 
 Pick., 81. 
 
 40. One of three persons who conti-act for 
 the purchase of a ship, paying part cash, giv- 
 ing their joint and several notes for the bal- 
 ance, and taking possession, has the right to 
 insure her for whom it may concern, loss, if 
 any, payable to the vendor; and the insured 
 may, in an action in his own name alone, re- 
 cover for a total or a partial loss. Rider d. 
 Ocean Ins. Co., 20 Pick., 259. 
 
 41. A commission merchant, to whom the 
 cargo is consigned for sale, has an insurable 
 interest in it to the extent of his expected 
 commissions. Putnam v. Mercantile Marine 
 Ins. Co., 5 Met., 386. 
 
 42. "On house, barn and furniture." In- 
 sured and his father transacted business to- 
 gether. The land on which the building 
 stood was in the name of the father. The 
 entire earnings of both, from labor, profits 
 and all other sources, were put into a com- 
 mon fund, from which each drew without 
 any particular account of contributions or re- 
 ceipts, and from this fund the building was 
 bought by the son, and removed to the land, 
 where it was burned. Held, it was joint prop- 
 erty; that the Insured had an equitable inter- 
 est in it, though it stood on the land of his 
 father; that he was entitled to recover one- 
 half of its value. Converse n. Citizens Mut. Ins. 
 Co., 10 Gush., 37. 
 
 346 
 
 43. PlaintiflEs hired the vessel and were to 
 pay owners for the round voyage $700, from 
 Portsmouth to Guayama and back to the 
 United States, agreeing to insure the freight 
 for that amount, which they did. Held, they 
 could maintain the action in their own names 
 for a total loss, if, during performance of the 
 voyage and before freight was due, she was 
 lost by perils insured against. SUlmoay v. 
 Neptune Ins. Co., 12 Gray, 73. 
 
 44. Policy to A. and E. on their frame 
 church building. The land was conveyed to 
 them three years before the date of the policy, 
 and they gave a bond for a deed of the land 
 to C, the treasurer of a religious society. The 
 society erected the building without any agree- 
 ment that they should hold it as personal 
 property, or that it might be removed; but 
 with an understanding that the land should 
 be held for and conveyed to them. Held, it 
 was a part of the realty, and A. and E. were 
 entitled to insure and to recover. Oahman v. 
 Dorchester Mutual Ins. Co., 98 Mass., 57. 
 
 45. A. made expenditures for his own ben- 
 efit ui)on.the house of the defendant, with the 
 defendant's approval. Held, he had an insur- 
 able interest in it. Looney «. Looney, 116 
 Mass., 283. 
 
 46. The wife purchased the property from 
 the executors of her father's estate. She had 
 issue of her husband, and he insured the prop, 
 erfy in his own name. Held, when the hus- 
 band effects insurance on houses in the posses- 
 sion of himself and wife, though the title be 
 in her alone, the law will presume that she 
 ratifies his act; and this, coupled with his 
 rights as tenant by the curtesy, will enable 
 him to maintain an action in his own name 
 upon the policy made in his own name. Har- 
 ris V. York Mut. Ins. Co., 50 Penn. St., 341. 
 
 47. " On frame coal-breaker, structure, 
 schutes, etc., trestle, engine and boiler-house, 
 and all wood work connected; on breaker, 
 engine, rollers, screens, belts, etc., and all 
 connected machinery. This to insure all their 
 working interest." Insured were lessees of 
 the premises, with the right to use the prop- 
 erty insured, with covenants to keep it in- 
 sured, and to maintain and keep it in good 
 order and condition. Held, the term " work- 
 ing interest" was not to be regarded as a tech- 
 nieal term, but to be treated as comprehending 
 the entire insurable interest which the plaint- 
 iflfs had in the property by virtue of their 
 
693 
 
 INSURABLE INTEREST. 
 
 694 
 
 What confers. 
 
 lease; that their insurable interest was there- 
 fore equal to the value of the property which 
 they were bound to replace, and was not lim- 
 ited to the value of its use. Imperial Fire 
 Ins. Co. «. Murray, 73 Penn. St., 13. 
 
 48. The C. B. Co. advanced to B. money 
 and machinery to the amount of $2,000; he 
 was to deliver a quantity of flsh scrap at Booth 
 Bay, to store it, ship it as wanted, and keep it 
 insured for the benefit of, and free of expense 
 to, the C. B. Co. This policy was obtained in 
 the name of that company, all the facts per- 
 taining to the transaction being stated to in- 
 surer's agent. B. obtained insurance iu an- 
 other company upon his owtt.interest. At the 
 time of the fire, none of the scrap had been 
 weighed nor separated, nor had any formal 
 delivery of it been made to the plaintiffs. Held, 
 plaintiffs had an insurable interest to the 
 amount insured, $3,000. Cumberland Bone Go. 
 V. Andes Ins. Co., 64 Me., 466. 
 
 49. A. held liens against the property, was 
 appointed trustee to sell it. He sold it; but 
 neither the purchase money was paid nor the 
 sale ratified. The charter conferred power to 
 insure any kind of pioperty, but its principal 
 object was to create a mutual company, and 
 make the premium notes liens on the land in- 
 sured. Held, the expression, any kind of 
 property, included personal property; and 
 hence the interest was sufficient to support the 
 policy. Allen v. Mutual Fire Ins. Co., 3 Md., 111. 
 
 50. Plaintiffs were lumber merchants. They 
 sold lumber to D. for him to erect two houses ; 
 but being unwilling to furnish it upon the credit 
 of D. alone, they and D. agreed that he should 
 insure for their benefit upon the lumber before 
 it was used, and on the houses as it was worked 
 into them. D. procured a policy in the name 
 of the plaintiffs, first upon the lumber, and 
 afterwards upon the two houses. They were 
 entirely destroyed by fire January 9th, before 
 they were finished. The agreement between 
 plaintiffs and D. was not made known to in- 
 surers, but the statute of the state conferred a 
 lien in favor of material men for supplies used 
 upon buildings. Held, the plaintiffs had an 
 insurable interest in the buildings, and the 
 subject was well described. Franklin Fire 
 Ins. Co. V. Coates, 14 Md., 385. 
 
 51. If the subject matter and nature of the 
 xisk are set forth in the policy, without any 
 representation as to the nature of the interest 
 of the insured, any insurable interest in the 
 
 property will enable the insured to recover. 
 Hartford Protection Ins. Co. v. Harmer, 3 Ohio 
 St., 453. 
 
 52. Builders who are to receive compensa- 
 tion upon the performance of work have an 
 insurable interest in it. Protection Ins. Co. v. 
 Hall, 15 B. Mon., 411. 
 
 53. The money to be collected on the pol- 
 icy was to be applied in satisfaction of certain 
 promissory notes secured by the property in- 
 sured. Held, the indorsers had such an inter- 
 est as would enable tliem t'> maintain the action 
 for their liability as assignors continued in 
 them an interest in the property insured. New 
 England Fire and Marine Ins. Co. ». Wetmore, 
 33 111., 331. 
 
 64. Wood was cut, hauled and piled on the 
 line of a railroad under an agreement that the 
 railroad company should take it and pay for 
 it, within a time named. When measured by 
 the railroad company, it was to be treated as 
 delivered and under the control of the rail- 
 road. Held, insured had a right to insure and 
 recover for it. Home Ins. Co. v. Heck, 65 111., 111. 
 
 55. The husband made a verbal gift of a lot 
 to his wife and abandoned her ; with her own 
 money she erected the house and occupied 
 the place as a homestead. Held, she had a 
 right to it, free from forced sale, to the extent 
 of $1,000; that equity would have restrained 
 tlie husband from dispossessing her, and 
 would have charged the property with all the 
 money expended by her upon it ; and there- 
 fore she had an ownei-ship which gave her an 
 insurable interest in the property. Rockford 
 Ins. Co. V. Nelson, 65 111., 415. 
 
 56. The interest of the assured was that of 
 a mechanic's lien. Held, an insurable interest. 
 Carter v. Humboldt Fire Ins. Co., 13 Iowa, 287 ; 
 Stout V. City Fire Ins. Co., id., 371. 
 
 57. T. erected the building. Held, evidence 
 of an insurable interest. Mitchell v. Home Ins. 
 Co., 33 Iowa, 431. 
 
 58. On a dwelling house. It was sold un- 
 der an execution against the owner and struck 
 off to insured, who neither paid any money 
 nor took a deed of it. An arrangement was 
 made by insured with the creditors; all facts 
 in relation to the title and interest of insured 
 were fully disclosed to insurer's agent, before 
 the risk was accepted. Held, a valid insurable 
 interest, sufficient to sustain the action for the 
 sum insured, .^tna Ins. Go. ®. Miers, 5 Sneed, 
 139. 
 
 847 
 
695 
 
 INSURABLE INTEREST. 
 
 696 
 
 What confeis. 
 
 59. The insured had possession of goods 
 and insured them. Seld, the owner might 
 adopt the contract. Durand v. Tlwuron, 1 
 Porter (Ala.), 238. Nor is it necessarj' that the 
 adaption sliould be made before loss. But it 
 must be made within a reasonable time. 
 Watkins is. Durand, id., 251. 
 
 60. A builder contracted with the lessee of 
 certain land to erect a building upon it for a 
 sum certain. He procured a decree in chan- 
 cery, making his lien paramount, and insured 
 the building. Held, he was entitled to pro- 
 vide against a contingency which might re- 
 sult to his prejudice, without making him 
 liable on the lessee's covenant to insure, and 
 that the policy did not enure to the lessor or 
 his assigns. Merdumts Ins. Co. v. Mazange, 
 22 Ala., 168. 
 
 61. The insured had an absolute interest in 
 three-fourths of 18,000 lbs. of cotton seed, and 
 was actual owner of two bales of cotton. 
 The cotton press was built by him; he bought 
 the castings and gin stand of others, and re- 
 paired the gin house. He was sub-lessee of 
 the premises, but his lessor sold to M. & 
 F., who took possession, but insured retained 
 his connection with the property until after 
 the fire, when he voluntarily left. Held, he 
 had an insurable interest. Georgia Home Int. 
 Co. V. Jones, 49 Miss., 80. 
 
 62. If the plaintiff had «ome interest in 
 any or all of the property insured, whether 
 slight or contingent, legal or equitable, fairly 
 represented or made known to the defendant 
 or its agent at the time tJie contract was made, 
 he can maintain the action. Fenn v. New Or- 
 leans Mutual Ins. Co., 53 Ga., 578. 
 
 63. A person who has several interests in a 
 cargo, viz : As partner in ^f , consignee of the 
 whole, and a lien on the whole for advances, 
 may protect them all by one insurance, with- 
 out expressing eithei' the number or nature of 
 interests. Oarruthers «. Shedden, 6 Taunt, 13 ; 
 8. c, 1 Marsh., 416. 
 
 64. D. consigned wool to S. in London, with 
 directions to S. to hold 16 bags of it for a 
 house in Halifax, and the remainder for H. 
 D. was indebted to H. £500, but H. gave no 
 orders for the goods. Held, H. had an insur- 
 able interest, and that D. was trustee for H. 
 Hill V. Seoretan, 1 B. & P., 315. 
 
 65. Bills of lading were sent to the ship- 
 per's general agent, to be delivered to the con- 
 signee, who refused to receive them or to ac- 
 
 348 
 
 cept the bills dtawn against the shipment. 
 The shipper's agent accepted the shipper's 
 draft for £300, and insured in his own 
 name, informed his principal, who approved 
 his conduct. Held, the insured was to be 
 considered as having received orders to insure 
 because his act was approved by his princi- 
 pal. Wolfe e. Homcasile, 1 B. & P., 316. 
 
 66. Certain commissioners were appointed 
 under 35 Geo. Ill, ch. 80, for the care, sale and 
 management of ships and cargoes, the proper- 
 ty of the subjects of the United Provinces, 
 brought into the ports of the United King- 
 dom, to be detained provisionally. Held, Ihe 
 commissioners had an insurable interest in 
 them, and they had a right to recover for a 
 loss which happened after proclamation to 
 make general reprisals against the Dutch. 
 Lucena o. Crawford, 3 B. & P., 75 ; Craufurd v. 
 Hunter, 8 "Term, 13; reversed, H. L,and a 
 venire de novo awarded, 5 B. & P., 370. But it 
 was afterwards tried in king's bench, the inter- 
 est being averred in the king, and judgment 
 given for plaintiff, which was subsequently 
 affirmed in the H. of L. (Ed.) 
 
 67. Common carriers on canal insured on 
 " goods and merchandise." Held, sufScient 
 to cover their interest: for, in general, it is 
 enough if the subject matter be rightly de- 
 scribed. Crowley v. Cohen, 3 B. & Ad., 478 ; 
 1 L. J. (N. S.), K. B., 158. 
 
 68. A squadron of ships of war, assisted by 
 land forces, captured two Spanish registered 
 ships. Held, under the prize act 19 Geo. Ill, 
 ch. 67, the officers and crew had an insurable 
 interest in them before condemnation. Le 
 Cras V. Hughes, 3 Doug., 81. 
 
 69. The captors had a present possession o£ 
 the ship and a right of property in her, subject 
 to be released by the crowff, before condemna- 
 tion, or by sentence of restoration. Held, the 
 captors had a right to insure. Stirling v. 
 Vaughan, 11 East, 619 ; s. c, 2 Camp., 225. 
 
 70. Policy to one as agent for himself and 
 others concerned. The subject was a prize 
 taken at Montevideo, when it was captured 
 by naval and army forces acting conjointly. 
 Held, the captors had an insurable interest 
 in her from the moment of capture. Stir- 
 ling V. Vaughan, 2 Camp., 225 ; s. c, 11 East, 
 619. 
 
 71. After proclamation of the king in coun- 
 cil, for the detention of Danish vessels, an 
 armed ship in the king's service, took posses- 
 
697 
 
 INSURABLE INTEREST. 
 
 698 
 
 What confers. 
 
 sion of the ship, which was afterwards insured 
 by order of the o£Bcers whose duty it was to 
 take care of the property. The interest was 
 averred in the king. Seld, by adopting the 
 act of possession, there was an insurable inter- 
 est in the king; and, by adopting the insur- 
 ance, that gave tlie king an interest in the 
 policy, sufficient to maintain the action. 
 South r. T/umpaon, IS East, 274; s. c, 11 East, 
 438. 
 
 7S. The Ross belonged to A., and the At- 
 lantic to F. ; both laden with West India pro- 
 duce for England were insured with their 
 cargoes and were captured. C. was author- 
 ized to obtain restitution, to presecute or com- 
 promise, to pay money, or appropriate cargo 
 for that purpose. Both ships and a part of 
 their cargoes were restored at Corunna for 
 the benefit of the owners of ships and cargoes 
 en masse. C. refitted both and drew upon A. 
 for all his expenses, which drafts were paid. 
 He consigned tlie Atlantic to A., and while 
 prepai-ing for her voyage, she was captured by 
 the French forces at Corunna. ffeld, A. had 
 an insurable interest and could recover the 
 sum insured. Robertson v. Hamilton, 14 East, 
 523. 
 
 73. The assured, an American, had no 
 beneficial interest in the ship. He was trus- 
 tee merely, holding the ownership to secure a 
 large sum of money advanced to her real 
 owner, an Englishman. The law of America 
 required the beneficial owner to make the 
 oath of ownership. Seld, the beneficial owner 
 had such an interest as would support the 
 policy. Shind o. Wilkinson, 3 Taunt., 237. 
 
 74. The indorsement and delivery of a bill 
 of lading to a creditor conveys, prima facie, all 
 the indorser's property in the goods; but if it 
 appears that it was intended to bind the net 
 proceeds, in case the goods should arrive, the 
 indorser retfiins a valid insurable interest. 
 HibheH v. Carter, 1 Term, 745. 
 
 75. Ship abandoned by her crew was taken 
 by salvors and brought into port, and owner, 
 upon application in adrairality, on entering 
 into recognizance for the salvage, obtained 
 possession of her with her cargo, and then 
 effected an insurance to cover "the average 
 expenses which he might have to pay in 
 respect to the claim of the salvors." The 
 amount of the salvage was ascertained by 
 agreement and paid by the insured. She was 
 totally lost Held, the insured had a lien on 
 
 the cargo for contribution, which gave him 
 an insurable interest in it, fur which he was 
 entitled to recover of his insurer. Briggs ». 
 Merchants and Traders Ass. Co., 13 Q. B., 167 ; 
 18 L. J. Q. B., 178; 13 Jur., 787. 
 
 76. Insured contracted to buy 6,000 bags of 
 rice, to arrive before the end of May, and 
 then contracted to sell them at an advance, 
 and insured "At and from Madras to London, 
 on profits on rice." She took in a part and 
 was ready to take balance, but was iqjured by 
 perils of the sea, prevented from performing 
 the voyage, and the rice on board was spoiled. 
 Held, he had an insurable interest. WSmT^ey 
 V. Royal Exchange Ass. Go., 14 Q. B., 634; 19 
 L. J. Q. B., 223; 18 L. J. Q. B., 193. 
 
 77. It appeared that the goods had been 
 concealed from his creditors. Held, he still 
 had an insurable interest in them. Qaulstone 
 o. Royal Ins. Co., 1 F. & F., 276. 
 
 78. Insured chartered her at Montevideo 
 for the Falkland Islands, thence to Santa Cruz 
 for a cargo of guano, thence for a port in 
 Europe. Freight £350 per month. £250 to be 
 paid when she sailed from the Falkland 
 Islands, balance at the port of discharge. She 
 arrived at the Falkland Islands and delivered 
 her cargo. The master received the £250 and 
 she proceeded to Santa Cruz, took in some 
 guano, returned to Montevideo and filled up 
 with hides. Before she sailed theuce, a new 
 agreement was made with the charterers, by 
 which she was to go to Havre at the same rate 
 of freight, commencing March 26th ; freight 
 to be paid at port of discharge, less £250, which 
 sum it was stated the master had received 
 on account of th.it charter party. The policy 
 was written, " Lost or not lost from Monte- 
 video to Havre on £450 freight advanced." 
 She was totally lost between Montevideo and 
 Havre. Held, the £250 was not a separate 
 sum to become due on her arrival at the 
 Falkland Islands; it was only a portion of 
 the entire sum payable at that place; and 
 the whole still remained at risk; the first 
 charter party was annulled, and the money 
 paid was a part of the entire sum to be paid 
 under the new charter party, which gave to 
 the insured a good insurable interest. Ellis 
 V. Lafone, 8 Exchr., 546; 17 Jur., 313; 22 L. J. 
 Ex., 124. 
 
 79. There was an agreement that the freight 
 should be liable for advances made by plaint- 
 ifls for the vessel, and for advances so made, 
 
 349 
 
699 
 
 INSURABLE INTEREST. 
 
 700 
 
 What does not confer. 
 
 the master drew upon M. & Co., the vessel's 
 consignees; but they refused to accept the 
 draft, and it was indorsed to G., who insured 
 as " advance on account of freight," for the 
 benefit of the indorsers who had cashed the 
 master's draft. Held, the insured had such an 
 interest as would support the policy, and that 
 it was correctly described " as advances on ac- 
 count of freight." Wilson v. Martin, 11 Exchr., 
 684; 25 L. J. Ex., 217. 
 
 80. A.n equitable interest is insurable, for 
 both trustee and cestui que trust have the right 
 to insure their interests separately. Ex parte 
 Houghton & Gribble, 17 Ves. Jun., 251. 
 
 81. She was captured by a noncommis- 
 sioned vessel, and insured by captors. Held, 
 they had an insurable interest in her. Telton 
 «. Smith, Faculty Dec. 1801 to 1807, p. 7. 
 
 82. £600 on freight, valued at £1,500, from 
 Odessa to London or New Castle, both or 
 either. She was chartered from Odessa to 
 Rotterdam, but war being declared, the master 
 was instructed to go to Hamburg or Bremen, 
 but to enter London or New Castle on his 
 passage, where he would find orders to dis- 
 charge at New Castle or to proceed to one of 
 tlie places mentioned. She was captured be- 
 fore she reached England. Hdd, insured had a 
 valid insurable interest as to a part of the voy- 
 age. Brown v. Hall, Faculty Dec, 1808 to 
 1810, p. 550. 
 
 II. "What does not confer. 
 (a) Life. 
 
 1. Policy on a life, payable to the executors, 
 etc. An assignment of the policy was prohibit- 
 ed. The insured paid the first premium, but 
 afterwards declined to keep the policy in 
 force, refused to p.iy the premium, and the pol- 
 icy lapsed. After the second premium became 
 due and the policy had lapsed for non-pay- 
 ment of it, insured assigned the policy to H., 
 and the insurer consented to the assignment. 
 H. was not a creditor of insured, and had no 
 insurable interest in the life insured. H., by 
 an agreement with the company, revived the 
 policy by paying the overdue premium. Held, 
 the forfeiture of the policy had been cured ; 
 but that a policy to H. upon the life of insured' 
 would have been absolutely void for want of 
 interest; that a purchase of the policy by and 
 assignment of it, with the consent of insurer, to 
 850 
 
 one who had no interest in the life insured, 
 was a mere wager, which rendered the pur- 
 chaser interested in the early death of the as- 
 sured, hence the law would not uphold the 
 purchase nor aid the purchaser to recover 
 (citing Stevens c.. Warren, 101 Mass., 564). 
 Franklin Life Ins. Co. i>. Hazzard,Al Ind., 116. 
 (But see St. John «. American Mutual Life 
 Ins. Co., 13 N. T., 31 ; Valton v. National Loan 
 Fund Life Ass. Co., 20 N. T., 32; Ashley d. 
 Ashley, 8 Sim., 149.) 
 
 2. Under the statute, 14 Geo. Ill, ch. 48, sec. 
 1, the party for whose benefit a policy is made 
 upon the life of another, must have a pecuni- 
 ary interest in that life. Held, a policy on the 
 life of the son for the father, without pecuniary 
 interest, was void. Halford v. Kymer, 10 B. & 
 C.,734;8L. J. (JK. B.), 311. 
 
 3. The son caused his father (a pauper) to 
 make the proposal for the policy, and imme- 
 diately thereafter to make a will bequeathing 
 to him the benefit of it. The premium was 
 paid by the son. The jui-y were instructed if 
 they believed it was procured by the son for 
 his own use and benefit, and in reality it was 
 his act and not his father's, they should find 
 for the defendant, under the statute, 14 Geo. 
 Ill, ch. 48, sec. 1. Bhillingv. Acciderdal Death 
 Ins. Co., 1 F. & F., 116; s. c. in Exch. Pleas, 2 
 H. & N., 42; 26 L. J. Ex., 266; 27 id., 16. 
 
 4. A. became indebted to a bank. P., one 
 of the partners, told him that during P.'s life, 
 he would never be called upon to pay the 
 money. Thereupon A. procured insurance 
 upon P.'s life, £5,000. The bank stopped pay- 
 ment after the decease of P., and A. collected 
 the money and paid it over to the bank. Prior 
 to the death of P., A.'s debt increased to 
 £6,000, and he procured additional insurance 
 £2,500 on the life of P., and this action was 
 brought to enforce payment. Held, he had no 
 insurable interest in the life of P., within the 
 meaning of 14 Geo. Ill, ch. 48, sec. 1 ; that 
 the payment of the £5,000 on the first policy 
 was under the same statute a bar to this action. 
 Hebdon v. West, 3 B. & S., 579 ; 9 Jur. (N. S.), 
 747; 82 L. J. Q. B., 85; 11 W. R., 422; 7 L. T. 
 (N. S.), 854. 
 
 (b) Property. 
 
 .5. A letter directing insurance to be made 
 recited: "$30,000, covering the premium on 
 brig Fame and cargo, at and from Bergen to 
 
701 
 
 INSURABLE INTEREST. 
 
 702 
 
 What does not conf ar. 
 
 Boston, -warranted to sail during the winter, 
 for account and risk of Leonard ; if you can 
 leave out the warranty without much affecting 
 the premium, it would be better." Held, there 
 was nothing in the letter indicating that Leon- 
 ard was acting as agent, and therefore it au- 
 thorized an insurance to be made for Leonard 
 only. Assuming that a mere prize agent, as 
 such, has, without any authority for that pur- 
 pose, a right to insure for the benefit of the 
 captors, still if the insurance made does not 
 appear to have been authorized by that agent, 
 the captors cannot avail themselves of it. Sea- 
 mans «. Loring. 1 Mason, 127. 
 
 6. The ship was badly damaged by perils 
 of the sea, so that she was not worth repair- 
 ing, and the master offered her cargo at public 
 auction ; but finding it could not be sold, ex- 
 cept at a great sacrifice, he bought it in to 
 prevent a loss,, shipped it in another vessel, 
 and advised his owners of the proceedings. 
 Held, he had no insurable interest in it. But 
 it seems the insurers had accepted an aban- 
 donment when it was known that the first 
 ship could not be repaired. Barker ii. Marine 
 ins. Co., 2 Mason, 369. 
 
 7. Tlie marshal seized the vessel under a 
 warrant from the district court, and she re- 
 mained in his custody until the case was dis- 
 posed of. He insure'd her, and taxed the ex- 
 pense as costs in the case. Held, he had no 
 right to effect the insurance, and the expense 
 was not properly chargeable against any of the 
 parties. Burke v. Brig M. P. Rich, 1 Cliff., 509. 
 
 8. Ship arrived at Newport with cargo, the 
 property of B. She needed repairs, which 
 were made to the amount of |9,0U5.30 ; he paid 
 it, and insurance was made from Newport to 
 Londonderry to him on ship t<» the amount of 
 18,500. She sailed March 7th from Newport, 
 and arrived near Londonderry. On her way 
 up she ran aground, and was not got oft till 
 April 12th. Upon survey made there, she was 
 sold and purchased by the captain, as agent of 
 the owner, for $2,200. She could not have 
 been repaired at Londonderry for less than 
 |8,200. EM, insured had no insurable inter- 
 est in the vessel, for he had no lien for tlie 
 money expended. Buchanan «. Ocean Ins Go., 
 6 Cow., 318. 
 
 9. The lessees of a farm for a term of years 
 covenanted to fodder the stock on the farm 
 with the hay that should grow thereon ; that 
 they would neither sell dispose of, carry 
 
 away, nor suffer to be carried away, any of the 
 hay without the consent of the lessors. They 
 made a bill of sale of the hay and straw, and 
 the purchaser took possession and procured 
 this policy to insure it. He knew of the con- 
 ditions of the lease. Held, the lessees had no 
 property in the hay which they could dispose 
 of by sale; that the plaintiff bad not an insur- 
 able interest sufficient to maintain the action. 
 Heald v. Builders Mut. In». Go., Ill Mass., 38. 
 
 10. The projectors of a corporation erected 
 a hotel upon land the property of the state, but 
 the company was never incorporated ; all of 
 the stockholders transferred their interests to 
 the creditors. A., the principal stockliolder, 
 was principal creditor, for labor and materials 
 used to erect the building. He had possession 
 of the hotel prior to the transfer, and entire 
 control of it afterwards, and insured it. Held, 
 the insured had not such an ipterust as would 
 authorize him to insure. Sweeny v. Franklin 
 Fire Ins. Go., 20 Penn. St., 337. 
 
 11. Policy to F. & Co. "For account of 
 whom it may concern, loss payable to them. 
 On the outfits of schooner Pilot fur a fishing 
 voyage to the Banks and back, to a port of dis 
 charge in the U. S." The schooner was 
 owned by P. The master obtained the outfits 
 from the store of F. & Co., and agreed to give 
 them the customary lien on tlie outfits and 
 voyage for their pay. She was stranded, badly 
 damaged, and sold with the outfits. Held, if 
 the outfits were sold unconditionally though 
 subject to a lieu, the seller waived the lien wheu 
 he surrendered them to the purchaser; the out- 
 fits would be worn out by use, s» that their 
 identity could not be preserved, and there was 
 no insurable interest in the seller after the own- 
 er of the vessel had entire possession of thera. 
 Folsom V. MercJiants Mvt. Ins. Co., 38 Me., 414. 
 
 1 2. Insured were sole stockholders of the 
 " Dayton Hydraulic Company." HeUd, they 
 had no insurable interest, in the property for 
 it belonged to the corporation. Philips i). Snote 
 Gounty Mut. Ins. Go., 20 Ohio, 174. 
 
 1 3. The person on whose account the in- 
 surance was made was interested in the ship, 
 but it did not appear that he was interested in 
 her voyage, nor was it averred in the declaration 
 that he was interested in it. Held, he could 
 not recover damages caused by a loss of the 
 voyage, though that had been been proved. 
 PoU V. FitzgeraU, Willes, 641 ; affirmed, 4 Bro 
 
 P. C, 439. 
 
 851 
 
703 
 
 INSURABLE INTEREST. 
 
 704 
 
 What does not confer. 
 
 14. K borrowed money of B., to secure 
 which, he drew hills in favor of P., on C's 
 agent in Calcutta, payable thirty days after 
 the arrival of the ship, and insured describing 
 his interest as " bills of exchange." Held, P. 
 had no insurable Interest. Palmer v. Pratt, 
 2Bing., 185; 9 Moore, 358. 
 
 15. "On bounty allowed by the French 
 government on the tonnage of the ship Le 
 Henri, valued at £800." The law of France 
 provided: " A vessel which shall have fished 
 either in the Pacific by doubling Cape Horn, 
 or by passing through the Straits of Magellan, 
 or to the south of Cape Horn at 63° of latitude 
 at the least, shall obtain, on return, a supple- 
 mental bounty, if she brings back as produce 
 of fishing, one half, at least, of her burden ; 
 or if she can prove in a navigation of sixteen 
 months at least, she caught half her burden 
 in the Atlantic, and then went into the Pacific 
 with the intention of catching in the seas be- 
 yond Cape Horn." She was prevented by 
 continued bad weather from taking any 
 whales, and was totally lost off the Island of 
 Lemas. Held, no insurable interest. DeVaux 
 V. Steele, 6 Bing. (N. C), 358; 8 Scott, 637. 
 
 1 6. A agreed with B. and C. to send two 
 ships annually to Jamaica, for which they 
 were to provide cargoes to be consigned to 
 him. He chartered a ship to proceed from 
 Bristol to St. Thomas, there to deliver her 
 outward cargo, proceed thence to Jamaica and 
 take a cargo consigned to him by B. and C; 
 and for guarantying the home cargo, he was 
 to receive a commission of twenty-seven per 
 cent, on the home freight. She was captured 
 between St. Thomas and Jamaica. Held, he 
 could not recover, because he had no insurable 
 interest when the loss happened. Knox v. 
 Wood,! Camp., 54-3. 
 
 1 7. Money was loaned to the master to be 
 repaid out of the freight. Held, the lender had 
 no insurable interest Wilson v. Boyal Ex- 
 change Ait. Oo., 2 Camp., 633. 
 
 18. The master borrowed money from a 
 merchant for necessary repairs and disburse- 
 ments, for which he drew bills on her owner 
 and executed an instrument which purported 
 to hypothecate vessel, cargo and freight. All 
 interest beyond the sum necessary to insure 
 and cover advances was forborne. The money 
 was made payable at all events ; master and 
 owner taking upon themselves the risk of 
 voyage, and subjecting the ship to seizure and 
 
 853 
 
 sale in admiralty in case the bills should be 
 dishonored. Held, the hypothecation could 
 not be enforced in admiralty, because the re- 
 payment of the money did not depend upon 
 the arrival of the vessel; and the lender had 
 no insurable interest in the ship. StainbaTik 
 V. Fenning, 11 C. B., 51 ; affirmed, Siainbank v. 
 Shepard, 13 id., 418. 
 
 1 9. The mate of a ship was to receive wages 
 at a certain rate per month, and three slaves 
 free of expense on her arrival. Held, he had 
 no insurable interest in the slaves. Webiter v. 
 De Ta»tet, 7 Term, 157. 
 
 20. S. agreed verbally with H. to purchase 
 200 tons of oil to arrive, 100 by the Antelope 
 and 100 by the Maria. S. insured oil and 
 profits thereon. The Antelope arrived and 
 delivered. The Maria was lost by perils of 
 the seas. Held, the contract with the seller 
 could not have been enforced, because it was 
 not in writing, and therefore S. had no insur- 
 able interest in the oil. StocMale v. Dunlop, 
 6 Mee. & W., 334; 9 L. J. (N. S.), Ex., 83; 4 
 Jur. 681. 
 
 21. A quantity of guano, the property of 
 D., shipped by S. at the suggestion of M., con- 
 signed to M. S. was named as the shipper in 
 the bill of lading. M. effected insurance, 
 £1,200, and S. made insurance upon it, £1,150; 
 at whicli latter sum it was valued. S. arrived 
 at the residence of M. in the evening, March 
 7th, infoi-med him what had been done, and 
 the following day, M. accepted a bill for the 
 value of the cargo. Subsequently, on the 
 same day, it was known that the vessel and 
 cargo were lost the night preceding. S. re- 
 fused to deliver his policy to M., and referred 
 him to his own insurers. M. brought suit 
 upon his policy, and recovered judgment, and 
 this action was brought by S. Held, if there 
 was a completed sale to M., the fact that 8. 
 held the shipping documents cast no liability 
 upon him for the loss; that to constitute an 
 interest insurable, it must appear that by the 
 proximate effect of the peril insured against 
 damage might result to the insured. Sea- 
 grave V. Vnion Marine Int. Go., 1 L. K. C. P., 
 305: 1 H. & R, 302; 12 Jur. (N. S.), 358; 35 
 L. J. C. P., 173; 14 W. R., 690; 14 L. T. (N. 
 S.), 479. 
 
 22. On cargo, at and from Rangoon, valued 
 at £5,500. She took on board 8,878 bags of 
 rice. An additional 400, in lighters along- 
 side, would have completed the cargo; she 
 
705 
 
 INSURABLE INTEREST. 
 
 706 
 
 What divests. 
 
 suddenly sprang a leak and went down with 
 the rice on board. The plaintiff had con- 
 tracted for the purchase of a full cargo of rice, 
 payment by seller's draft on purchasers at six 
 month's sight, with documents attached. 
 After she went down, the master signed bills 
 of lading for the rice that was on board. The 
 sellers drew upon the insured, and the drafts 
 were duly accepted and paid. Held, though 
 purchaser had the right to reject anything 
 that fell short of a full cargo, he was entitled 
 to elect to treat that which was on board as a 
 cargo, the title to which would pass to the 
 purchaser when the election was made, and 
 this election might be made after the vessel 
 went down, therefore insured had an interest 
 in the property lost, su£Scient to support the 
 policy. Anderson e. Morice, 10 L. R. C. P., 58. 
 Reversed in the exchequer chamber, on the 
 ground that the cargo was not at his risk un- 
 der &e contract of sale, until the loading was 
 complete, therefore he had not such an insur- 
 able interest as the law requires to make the 
 policy attach, s. c, id., 609. 
 
 IIL What divests. 
 
 (a) 
 
 /ite. 
 
 1. Bill, to have a policy delivered up and 
 canceled, and for an injunction to stay pro- 
 ceedings at law upon the policy, stated that 
 D., in behalf of the Anchor Insurance Com- 
 pany, agreed to effect an insurance with the 
 company on the life of the late Duke of Cam- 
 bridge for £1,000, for which sum the com- 
 pany's funds were liable within three months 
 after proof of the duke's death; that D. 
 effected the insurance on l«half of the An- 
 chor Company, as an indemnity in part 
 against certain insurance for £3,000 made by 
 the Anchor Company upon the same life in 
 favor of Wright; that the Anchor Company's 
 policies with Wright were canceled ; that the 
 interest of the Anchor Company in the life of 
 the duke bad entirely ceased from October 
 18, 1848, but that B. had kept the policy in 
 force from Uiat time till the death of the duke ; 
 and that he never had any insurable interest 
 in the life of the duke ; that the premiums 
 were not paid by the Anchor Company as 
 was supposed, but they were paid by D. out 
 of his own moneys. Held, the bill was good 
 Dpon its face, and that the demurrer must be 
 23 
 
 overruled. But see 8. c, wh ich went to a j udg. 
 ment against the insurer, 15 C. B., 365. India 
 and London Life Ass. Co. v. Baiby, i DcQ. & 
 S., 462. 
 
 2. Policy on the life of P., who died while 
 it was in force. P. was indebted to insured 
 in the sum insured, at the time of his death, 
 and died insolvent. After his death, his exec- 
 utors paid the debt to the insured. Held, the 
 payment of the debt by the executors was a 
 bar to the action. Godsall v. Boldero, 9 East, 73. 
 
 (b) Property. 
 
 3. Insured alienated the property before the 
 Are occurred, and the alienees, to maintain 
 their action against insurer, offered in evi- 
 dence an indorsement upon the policy, as fol- 
 lows: "For value received, in case of loss, 
 pay the within to Fogg and Hearsay." Held, 
 not su£9cient to enable them to maintain the 
 action. Fogg v. Middlesex Mutual Fire Ins. 
 Co., 10 Cush., 337. 
 
 4. The policy prohibited a sale of the prop- 
 erty. The insured sold it, and indorsed the 
 policy: "Payable, in case of loss, to E. C. 
 Bates." Insurer indorsed: " Consent is hereby 
 given to above indorsement." Held, neither a 
 knowledge of, nor a consent to the sale of the 
 goods insured was to be implied from the 
 indorsement ; also, when Bates purchased the 
 goods, and a loss of them afterwards occurred, 
 the loss was not the loss of the insured, and 
 the purchaser had no claim against the insurer 
 for the loss, and ho action could be sustained 
 upon the policy. Bates v. Equitable Ins. Co., 
 10 Wall., 33. 
 
 5. Policy to R., " Loss, if any, payable to 
 H., executor." R. held the premises under 
 a lease for ten years. Before the term ex- 
 pired, the lessee executed a mortgage of his 
 leasehold estate, and notice was given that he 
 had assigned his lease to the mortgagee, and 
 a request made that if the assignment would 
 invalidate the policy, to make a new one in 
 the name of tlie mortgagee. The defendants 
 suggested that insured should assign the 
 policy to the mortgagee, and to forward it 
 to the company's office for attestation. No 
 further attention was paid to the suggestion, 
 and about four months thereafter the premises 
 were consumed by fire. About ten months 
 before it occurred, the mortgagee of the lease 
 gave the notice i^equired by ch. 151, sees. 6, 7 
 
 853 
 
707 
 
 INSURABLE INTEREST. 
 
 708 
 
 What diyests. 
 
 and 8 of R. S. of Mass., of his intention to fore- 
 close the mortgage for breach of condition, 
 took possession, insured acting as his agent 
 to collect the rents, and so continued till the 
 time of the fire. Held, insured had parted 
 ■with his interest in the property before the 
 loss, and insurers were discharged. Hidden v. 
 Slater Mutual Fire Ins. Co., 3 Cliff., 26S. 
 
 6. She was bottomried to an amount exceed- 
 ing her value. Held, her owner had not an 
 insurable interest in her. Smith v. Williams, 
 3 Caines Cas., ItO. 
 
 7. The vessel was under bottomry for a cer- 
 tiiin amount. Held, as to that amount the in- 
 sured ceased to have any insurable interest, for 
 it was in effect a sale of his intererst pro tanto 
 (citing Watson ». Insurance Co. of N. A., 3 
 Wash. C. C, 1 ; Smith v. Williams, 3 Caines 
 Cas., 110; 1 Phil, on Ins., 113). Bead v. Mu- 
 tual Safety Ins. Go., 3 Sand., 54. 
 
 8. C. and B. agreed that B. should purchase 
 of C. certain land for a consideration, payable 
 in ten equal annual sums ; that upon making 
 those payments, a deed of conveyance should 
 be executed ; that if B. should fail to perform, 
 C. should have the right to declare the contract 
 void, and treat B. as a tenant holding over 
 without right, and might take possession and 
 expel B. He made default and was notified 
 by C. to surrender possession, with which he 
 complied. Held, all the insurable interest he 
 ever had terminated with his surrender. Bir- 
 mingham V. Empire Ins. Co., 43 Barb., 457. 
 
 9. On schooner to C. & S. They conveyed 
 her by regular bill of sale to W., who enrolled 
 her in his name. She was lost after the date 
 of the enrollment. Held, insured had no in- 
 terest at the time of the loss. Held, also, that 
 the parties could not be allowed to prove that 
 the conveyance was fraudulent, and that it was 
 intended as security to indemnify W. against 
 loss under a bond made by him in an action 
 of replevin against C. & S. Hence the con- 
 veyance must be deemed conclusive. Carroll 
 K. Boston Marine Ins. Co., 8 Mass., 515. 
 
 10. H. mortgaged to T. and sold his equity 
 to insured. T. foreclosed, and L. purchased. 
 To secure part of the purchase money, he gave 
 a new mortgage on the same premises and 
 sold his equity. Subsequently, T. sold the 
 premises by virtue of the power given in the 
 mortgage made by L. Held, insured could 
 not recover, for his interest was gone. Bailey 
 V. Mtna Ins. Co , 10 Allen, 386. 
 
 854 
 
 11." For account of whom it may concern. 
 To be void in case this policy or the interest 
 insured hereby shall be sold, assigned, trans- 
 ferred, or pledged, without the previous con- 
 sent in writing of the insurers." At the date 
 of the policy, the legal title was in F., to whom 
 she had been conveyed a short time before, 
 that she might take a British register and flag 
 to avoid the risk of Confederate cruisers; but 
 the equitable ownership remained in her 
 former owners. G. advanced money to them 
 to a large amount, and she was largely in debt 
 to him for repairs and advances. F., for the 
 purpose of securing G., mortgaged her to 0. 
 without consulting or notifying the equitable 
 owners. Held, fsital to the plaintifi^s right to 
 recover. Atherton v. PJusnix Ins. Co., 109 
 Mass., 33. 
 
 1 2. Policy under seal to J. & Sons, for one 
 year, to continue so long as the assured or 
 their assigns shall pay fhe premium, and the 
 company shall accept and receive it. The 
 firm of J. & Sons was composed of William, 
 John, and B. who withdrew from the firm 
 during the first year, and the plaintiffs W. & .7. 
 continued the business in the same firm name. 
 The day preceding the expiration of the policy, 
 the premium was paid for the ensuing year, 
 and receipted as ffbm J. & Sons, stipulating 
 in the receipt that " the policy should be' here- 
 by continued in force for another year." A 
 loss occurred about two months thereafter. 
 Held, William and John could not maintain 
 the action, for the renewal receipt was not a 
 new contract, it was a mere agreement to con- 
 tinue the policy for another year; whether the 
 agreement was a specialty or simple contract, 
 no action could be maintained upon it except 
 by the parties to whom it was made, for it 
 was a joint contract, and no one conld sue 
 alone upon it. Baltimore Fire Int. Co. v. Me- 
 Omtian, 16 Md., 47. 
 
 13. Policy made to F., D. & C. upon flour 
 mill, machinery and fixtures. Stipulated : " If 
 the property shall be sold or transferred, or 
 any change take place in the title or posses- 
 sion, whether by legal process or judicial 
 decree, voluntary transfer or conveyance, 
 it shall be void." The partnership capital 
 consisted of $5,231 by F., |11,275 by D., 
 $11,565 by C, and the mill property (the prop- 
 erty insured) by F. But it was never con- 
 veyed to the partnership, nor to any person in 
 trust for the partnership. Held, the title re- 
 
709 
 
 INSURABLE INTEREST. 
 
 no 
 
 What divests. 
 
 miiined in the individual member, subject to 
 the particular use and appropriatioa during 
 the continuance of the partnership, and npou 
 its dissolution the property was freed from 
 such use, hence the policy was void from the 
 begiuning. Oitiseng fire Ins. Go. «. DoU, 85 
 Md., 89. 
 
 14. Insured made a donatio inter vivos of the 
 property insured by deed. Held, it left him no 
 interest in it at the time of the loss, though there 
 was an understanding between the donor and 
 donee, that the former should receive and en- 
 joy the rents, and though it was proved that 
 he did continue to receive them. McCarty o. 
 Commereial Ins. Go., 17 La. (0« S), 365. 
 
 1 5. The assignee of H. and B. sold to D., 
 the creditor's interest in a steamer, payable, 
 cash, $5,000, and three acceptances, each 
 $1,666.66, payable in one, two and three 
 mouths from date, with vendor's privilege on 
 the steamer until final payment D. was to in- 
 sure her for $5,000, and to transfer the policy 
 to the assignee. D. failed to pay the premium, 
 and the assignee paid it, $957.75. The accept- 
 ances were protested for nonpayment. D. 
 fraudulently sold his interest in the steamer, 
 and she was tjiken by the United States mar- 
 shal for debts contracted since the sale, and 
 was to be sold April 22d. The foregoing facts 
 were presented in a letter to the president of 
 insurer, and he was requested to continue the 
 policy from its expiration, to cover the as- 
 signee's interest, to which insurer consented. 
 She was sold April 23d, and the proceeds dis- 
 tributed. The policy was to run until Novem- 
 ber 25th, but she was entirely lost September 
 23d. Btld, the marshal's sale divested the 
 privilege and interest of the assignee; the 
 assent of the insurer did not have the effect of 
 continuing the assignee's insurable interest; 
 the doctrine of estoppel in pais did not pre- 
 clude insurer from asserting the assignee's 
 want of insurable interest, for the assent of 
 insurer did not change the assignee's rights, 
 nor cause him to act so as to alter his previous 
 position; it did not create a right, nor did it 
 confer one which did not before exist; it was 
 a case where the parties were mistaken as to 
 the continued existence of the assignee's in- 
 surable interest after the marshal's sale, and 
 the assignee was therefore not entitled to re- 
 cover anything. Pike e. Merchants Mut. Itu. 
 Co., 26 La. An., 505. 
 
 16. The lessee of certain premises procured 
 insurance, and subsequently assigned the lease 
 and policy. Held, insurers were discharged, 
 for insured cannot recover unless he was jn- 
 texested in the property insured at the time 
 the policy was made, and when the loss oc- 
 curred. L!fn(^ V. Datsell, 4 Bro. P. C, 431; 
 Marsh, on Ins., 698; Sadlers' Go. «. Badcock, 2 
 Atk.,554; MeGarty v. Gommercial Ins. Go., 17 
 La.(0. S.),865; Kip, in re, 4 Edw. Ch., 86. 
 
 17. B. consigned a cargo of deals to A., 
 to be paid for by bill at three months, which 
 was duly accepted; and A. made insuranco 
 on them. She was sti-anded. The deals were 
 saved, but not worth sending forwai-d. On 
 hearing of the accident, the day before the 
 bill came due, he made an offer of abandon- 
 ment which was refused ; and B.'s agent 
 stopped the goods in transitii. Seld, A.'s 
 assignee in bankruptcy could not recover 
 on the policy, because, after the stoppage »7i 
 traTisitu, A. had no interest in the goods. Glat/ 
 V. Harrison, 10 B. & C, 99; 8 L. J. K. B., 90; 
 5 M. & R, 17. 
 
 18. Policy to Elizabeth Marsh & Son on 
 ship. Ship's register at the date of the policy 
 showed that she belonged to Cummings, Mc- 
 Master & Co. Held, insured could not recover, 
 for he had no legal evidence of ownership. 
 Marsh «. Mobinson, 4 Esp., 98. 
 
 19. Page & Chamberlain instructed a broker 
 to insure their two-thirds interest in a ship. 
 At the time of effecting the insurance. Page & 
 Chamberlain and Banks were interested, each 
 one-third. Before the loss. Page conveyed his 
 third to Banks, and Chamberlain <& Banks 
 continued owners till the time of the loss. 
 Banks insured two-thirds interest hi another 
 oflSce and received upon it a total loss. Held, 
 as to the interest of Page, no recovery could 
 be had upon it. Potcels v. Innes, 11 Mee. & 
 W., 10; 13 L. J. Ex., 163. 
 
 20. Insurer made a policy on goods for D., 
 who sold them to C, to whom the policy was 
 assigned with insurer's consent. C. sold tliem 
 to M., taking his notes in part payment, in- 
 dorsed by L., wiUi whom M. agreed, that the 
 goods should be sold and the proceeds, as re- 
 ceived, should be paid over to L. The policy 
 was again assigned to M. with insurer's con- 
 sent Held, on demurrer to the declaration, L. 
 had not any insurable interest Davis v. Home 
 Itu. Co., 24 U. C. Q. B., 364. 
 
 353 
 
711 
 
 INSURABLE INTEREST. 
 
 712 
 
 What does not divest. 
 
 IV. "What does not DrvTEST. 
 
 1. Time policy on ship. Another vessel 
 smuggled a chain cable subsequently purchas- 
 ed and put on board the ship insured. Eeld, the 
 insurance on the ship and cable was valid ; that 
 property forfeited for a breach of the revenue 
 laws does not vest in the government till after 
 seizure; that the infraction of the law in this 
 case was covered by a penalty ; the vessel re- 
 ceiving the smuggled goods was not liable to 
 forfeiture. A mere liability to forfeiture would 
 not avoid the contract of insurance or prevent 
 a recovery for a loss caused by an independent 
 peril. Clark v. Protection Ins. Co., 1 Story, 
 109. 
 
 2. She was bottomried, but the purchaser 
 had no notice of the fact. Held, he could 
 maintain his action. Williams v. Smith, 2 
 Caines, 13. 
 
 3. In August, 1850, W., the plaintiff, owned 
 one-eighth of the propeller, and D. owned 
 flve-sixteenths of her. W. and D. agreed in 
 writing that W. should sell, and D. should buy 
 the whole of W.'s interest, payable in two 
 equal sums, January 1st and February 1st. 
 D. agreed to give W. a bill of sale of his five- 
 sixteenths to secure his part of the agreement, 
 also to assign his policies on the steamer to 
 W., and to effect additional policies on her 
 and her freight, to the value of W.'s one-eighth, 
 $10,C00, and to assign them to W. D. agreed 
 if he should make default, then ail of his inter- 
 est should vest absolutely in W., and D. should 
 forfeit all rights. W. agreed to reconvey and 
 reassign so soon as D. should fulfill his part 
 of it. In June following, the plaintiff pro- 
 cured this policy on the freight of the steamer 
 for one year from April 26th, preceding: 
 " Loss, if any, payable to the plaintiff." She 
 was sold upon an execution issued against D., 
 at San Francisco, and subsequently lost, with 
 & full freight which would have been earned 
 but for the disaster. Held, the plaintiff was 
 entitled to recover, because there was no evi- 
 dence to warrant a jury in coming to the con- 
 clusion that D. had fully performed his part 
 of the agreement. Williams v. Insurance Co. 
 of North America, 1 Hilt., 345. 
 
 4. The policy did not require the insured to 
 disclose the exact state of his title. He in- 
 sured it as his property, had a contract for a 
 deed, and was in possession, but had not paid 
 all the purchase money. Held, he was entitled 
 ■ 356 
 
 to recover the amount insured, if it did not 
 exceed the value of the premises, ^tna Fire 
 Ins. Co. B. Tyler, 16 Wend., 385; s. c, 12 id 
 507. 
 
 5. " On his brick building on Washington 
 street, Brooklyn, $1,500; and $1,500 on his 
 engine and boilers therein contained." Stip- 
 ulated : " Property held in trust or on com- 
 mission must be insured as such; otherwise 
 the policy will not cover such properly." 
 The owner conveyed it to the insured in trust 
 to sell and pay debts, and insured took it all 
 into possession. Held, he was entitled to re- 
 cover the whole sum insured (citing Tyler o. 
 ^tna Ins. Co., 12 Wend., 507 ; Oil ver v. Green, 
 3 Mass., 133 ; Lawrence ». Van Horn, t Caines, 
 276; Crowley v. Cohen, 3 B. & Ad., 478; Car- 
 ruthers o. Shedden, 6 Taunt., 14; Kinney v. 
 Van Horn, 1 Johns., 385 ; Rising v. Burnett, 
 Marsh, on Ins., 730 ; Wolf v. Horncaslle, 1 B. 
 
 6 P., 315). White i. Hudson River Ins. Co., 
 
 7 How. Pr., 341 ; s. c, 15 id., 288. 
 
 6. Insured, the consignee, was to bear all 
 shipping expenses, to sell the property to the 
 best possible advantage, not below the invoice 
 price; the profits, if any, to be equally divided 
 between the shippers and the consignee, but 
 in case of a failure to sell, the consignee was 
 to return the goods to shippers free of all 
 charges, or pay the invoice price for them. 
 Held, iixe consignee had the right to insure 
 them. Sturm v. Atlantic Mut. Ins. Co., 6 J. & 
 Sp. (N. Y.), 281. 
 
 7. She was registered under the act of con- 
 gress, December 31, 1792, and sold to F., an 
 unnaturalized alien; but the title was taken 
 in the name of the plaintiff to preserve her 
 national character, and she was insured in the 
 name of the plaintiff, who mortgaged her to 
 F., and contracted to keep her insured. Held, 
 he had an insurable interest and could main- 
 tain the action. Wilkes v. People's Fire Ins. 
 Co., 19 N. Y., 184. 
 
 8. The owner of ship, mortgaged by him 
 for her full value, has an insurable interest in 
 her. Higginson v. Doll, 13 Mass., 96. 
 
 9. Ship valued ; insured " for whom it might 
 concern." Insured, the owner, made absolute 
 hill of sale of her to another person, July 1st, 
 and took back a memorandum, which pro- 
 vided that the proceeds of the vessel should be 
 appropriated as security, by the vendee, for 
 indorsing for the insured, and the balance, if 
 any, to be paid to a Creditor of the insured. 
 
713 
 
 INSURA.BLE INTEREST. 
 
 714 
 
 "What does not divest. 
 
 Afterwards additional property was transfer- 
 red, and the memorandum was exchanged for 
 a writing under seal, wherein it was coven- 
 anted that the proceeds of all the property 
 should be applied as before mentioned. A 
 loss happened. HeUd, there was still a subsist- 
 ing interest in the insured, protected by the 
 policy, since the debts on account of which 
 the transfer was made would still exist, ex- 
 cept so far as they should be discharged by 
 the proceeds of the property. Gordon, o. Mas- 
 saciiusetis Fire and Marine Ins. Co., 3 Pick., 
 249. 
 
 10. The mortgagor's equity of redemption 
 had been sold under an execution against 
 him, but he still had the right to redeem. Held, 
 he had an insurable interest. Strong v. Man- 
 ufacturers Ins. Co., 10 Pick., 40. 
 
 11. Insured procured a policy upon a ves- 
 sel to the amount of her value, payable to him ; 
 he, together with another person, had bought 
 her, and he indorsed the notes given by the 
 other person. No writing passed between the 
 parties. Before the loss, the other person sold 
 his proportion to the insured. Held, he was 
 entitled to recover tJie whole amount of loss 
 for his own use. Martin v. Wishing Ins. Co., 
 20 Pick., 389. 
 
 12. Insured bad made a contract to sell the 
 pn)perty insured, and had received an instal- 
 ment of the purchase money. Held, no de- 
 fense to the action. Boston and Salem Ice Co. 
 V. Royal Ins. Co., 12 Allen, 381. 
 
 13. Property insured against fire was sold 
 by insured, part of purchase money paid, and 
 the vendor (insured) and the vendee, agreed 
 that the vendor should retain possession of it 
 and the policies, till full payment made. It 
 was burned before payment, and a creditor 
 attached the claims against insurers. Held, 
 as between the parties to the sale, the possess- 
 ion was good; that as to the answers, the 
 goods were the property of insured to the ex- 
 tent of the unpaid purchase money. Norcross 
 V. Insurance Cos., 17 Penn. St., 429. 
 
 14. An agreement to sell real estate, pur- 
 chase money not received nor conveyance 
 made, does not divest the insured of his inter- 
 est nor of his right to recover of the insurer. 
 Perry County Ins. Co. u. Stewart, 19 Penn. 
 St., 45. 
 
 15. Insured agreed to convey the premises, 
 and received part of the purchase money. 
 The policy was in form an insurance upon 
 
 the building. Held, he was entitled to recover 
 to the extent of the unpaid purchase money, 
 notwithstanding the lot was sufficient to cover 
 the debt. Insurance Co. v. Updegraff, 21 Peun. 
 St., 518. 
 
 16. Policy upon a dwelling house, con- 
 veyed by insured, but no purchase money 
 paid. The grantee reconveyed it to a trustee 
 to secure the purchase money. Held, the con- 
 veyance and reconveyance were to be regarded 
 as one transaction; that the insured retained 
 an insurable interest in the property, and 
 could recover to the extent of that interest, not 
 exceeding the amount insured. Morrison v. 
 Tennessee Marine and Fire Ins. Co., 18 Mo., 
 263. 
 
 17. A, the owner, mortgaged to B. and in- 
 sured them, and then he sold to C. Insurer 
 consented to the sale and an assignment of the 
 policy. B. proceeded to foreclose, to which 
 
 A. and C. were made parties, and, by agree- 
 ment, A. and C. were to have two years from 
 the day of sale to redeem ; but the decree was 
 entered giving fifteen months to redeem, they 
 were sold and bid in by the agent of B., and 
 within the fifteen months were consumed by 
 fire. Held, under the agreement the relations 
 of mortgagor and mortgagee were continued ; 
 
 B. acquired no new estate under the purchase; 
 he had only a lien until the time to redeem 
 had expired ; A. was the mortgagor at the time 
 of the loss, and he had the right to insure and 
 recover the full value of the property insured. 
 Stephens v. Illinois Mut. Iris. Co., 43 111., 327. 
 
 1 8. Insured agreed to sell the property, but 
 a loss occurred before he executed the agree- 
 ment ; but he completed it after the loss. Held, 
 he had the right to recover for the loss. Fire 
 and Marine Ins. Co. of Wheeling v. Morrison, 
 11 Leigh, 354. 
 
 1 9. A. insured £800 upon his own ship, but 
 being greatly indebted to B., he deposited 
 with B. several securities, and also made an 
 absolute assignment of the ship to B. She 
 was afterwai-ds lost. Held, A. had a sufficient 
 interest in the ship, at the time of the loss, to 
 maintain the action, for the assignment, 
 though absolute, was nothing more than a 
 pledge or security for the debt. Interlocufers 
 of the Scotch court affirmed. Alston v. 
 Campbell, 4 Bro. P. C, 476. 
 
 20. An insolvent debtor, who had posses- 
 sion of the goods, though they have vested ia 
 the provisional assignee, has an insurable in- 
 
 357 
 
715 
 
 INSURABLE INTEREST. 
 
 Y16 
 
 What interest must be disclosed — What interest need not be disclosed. 
 
 terest in them. Marks x. Hamilton, 7 Exch., 
 323; 31 L. J. Ex., 109; 16 Jur., 153. 
 
 21. B. sold oats to A., to be shipped by J. 
 from Tonghal. B. afterwards advised A. that 
 J. had engaged transportation in the packet for 
 the oats on A.'s account, and A. insured them 
 per pacliet ; but the packet refused to touch at 
 Portsmouth, and B. sold the oats again and 
 delivered the bill of lading to O. The packet 
 ■was lost. By subsequent indorsement on the 
 policy, A. assigned the insurance to B. Held, 
 i^A. had an insurable interest at the time the 
 policy was effected, whatever change may 
 have taken place in the property, in the oats 
 since, could have no efiEect upon the policy, 
 for the insured might sue for the benefit of the 
 party to whom such property had passed. 
 Sparkes v. Marshall, 2 Bing. (N. C), 761; 3 
 Scott., 172; 3 Hodges, 44. 
 
 22. The owner of a mill entered into an 
 agreement with another person, by which the 
 expenses and profits of the mill were to be 
 shared equally by both ; and the mill was in- 
 sured in the name of the ower. Held, the 
 agreement did not affect the right of the in- 
 sured to recover upon the policy. Sice v. 
 Provincial Ins. Go., 7 U. C. C. P., 548. 
 
 23. On vessel. Mortgagee procured insur- 
 ance to protect his own interest, but she contin- 
 ued in the possession of the mortgagor. Held, 
 plaintiff was entitled to recover. Oravrford v. 
 St. Lawrence County Ins. Co., 8 U. C. Q. B., 
 135. 
 
 24. The owner of a vessel mortgaged her, 
 and she was subsequently levied on by the 
 sheriff by virtue of a writ of ji. fa., issued 
 against the mortgagor and sold. Held, noth- 
 ing passed by the sale to the purchaser, for the 
 mortgage carried all the mortgagor's legal 
 estate in her; that the statutes Vict., ch. 5, sec. 
 23, which declares that the registered owner 
 shall be deemed the owner, notwithstanding 
 he has mortgaged the vessel, did not apply, for 
 that statute was to be limited to registered 
 vessels, and this was not registered. Scat- 
 chard v. Equitable JFire Ins. Co., 8 U. C. C. P., 
 415. 
 
 25. The plaintiff had contracted to purchase 
 the property, but had failed to make his pay- 
 ments promptly. He was proceeding in 
 equity to compel the vendor to perform his 
 part of the contract. Held, plaintiff had an 
 insurable interest in the property. MiUigan 
 V. Hquitahle Ins. Co., 16 U. C. Q. B., 314. 
 
 358 
 
 26. Plaintiff effected insurance on 3,000 
 bushels of wheat in a certain warehouse, for 
 which he held the warehouseman's receipt. 
 The warehouseman had issued fraudulent 
 warehouse receipts for wheat he did not have, 
 but the jury found there were 2,000 bushels of 
 wheat in the warehouse at the time the loss 
 happened. Held, the plaintiff was entitled to 
 recover if there was wheat enough in the 
 warehouse corresponding with the description 
 in the warehouse receipt. The fraud of the 
 warehouseman could not be set up in answer 
 to the plaintiff's claim. Clark v. Western Ass. 
 Co., 35 V. C. Q. B., 309. 
 
 V. What inteeest must be disclosed. 
 
 1. M. devised certain property to his son B., 
 in trust for the use of O. and her children, and 
 in case she should die without children, then 
 in trust for his other children. The applica- 
 tion represented the premises as the property 
 absolutely of insured. ' Held, it was not the 
 absolute property of insured ; hence, the rep- 
 resentation was untrue and vitiated the policy. 
 TJ. S. Cir. C, East. Dist. N. C. Murphey v. 
 Old Dominion Ins. Co., 5 Ins. L. J., 397. 
 
 2. The holder of a leasehold interest cannot 
 insure it in a mutual company unless the in- 
 terest be specially disclosed. Mutual Ass. Co. 
 v. Malum., 5 Call, 517. 
 
 VI. What interest need not be dis- 
 
 closed. 
 
 1. Stipulated: "Any interest in the prop- 
 erty not absolute or that is less than a perfect 
 title must be specifically represented and ex- 
 pressed in the policy; otherwise it will be 
 void." At the time it was made, insured had 
 the right to redeem the premises from sale 
 theretofore made by the sheriff, and at the 
 time of the fire, though that right had 
 been lost, still there was the right to redeem 
 in judgment creditors, and thei-e were judg- 
 ment creditors ; and C, the payee of the policy, 
 had agreed with insured, if he acquired title, 
 he would discharge insured from certain per- 
 sonal liabilities. Held, insured was entitled 
 to recover. Cone v. Niagara Fire Ins. Co., 60 
 N. T., 619 ; 8. c, 3 N. Y. S. C, 33. 
 
 2. The plaintiff was a common carrier, and 
 the defendant issued its policy, " Upon cargo 
 from New York to Buffalo insuring him." 
 
717 
 
 INSURABLE INTEREST. 
 
 718 
 
 Who cannot insure — "Interest or no interest " — What proof is necessary — Evidence of. 
 
 His special interest was not disclosed. Held, 
 he was entitled to recover upon an aver- 
 ment that he was interested in tlie cargo to 
 the whole amouat, and became liable for the 
 same to the shippers thereof ; that the fact 
 that he had no interest to abandon was in favor 
 of the insurer, who could not be made liable 
 for a constructive total loss without abandon- 
 ment. Van NaUa «. Sun Mut. Ina. Co., 2 
 Sandf., 490. 
 
 3. Stipulated: "If the interest or propertj' 
 insured be leasehold, or that of mortgage or 
 any other interest, not in fee simple, in case of 
 real estate or not absolute as to personal prop- 
 erty, such must be made known and expressed 
 in the policy." At the time the policy was 
 made, the property was owned by the Essex 
 Mills Co., a body corporate, and was being 
 used by W., who was to have all the profits of 
 the business for two years. The policy was 
 made in the name of the Essex Hills Co. and 
 W. Seld, the condition did not apply to a 
 case where the united interests of the insured 
 wei-e not less than absolute. Rankin o. Andes 
 rn«. Co., 47 Vt., 144. 
 
 4. Policy to husband, " On household fur- 
 niture," the property of the wife. Held, ho 
 could insure it in his own name without dis- 
 closing his interest. Clarke «. Firerruin'g Ins. 
 Co., 18 La. (O. S.), 431 ; Franldin Marine and 
 Fire Ins. Co. v. Drake, 2 B. Mon., 47. 
 
 t 5. Policy on g<iods. The only interest that 
 insured had was that of an original insurer. 
 This policy was therefore one of reinsurance, 
 but that fact was not expressed. Held, no de- 
 fense to the action. Maekemie -ii.Whitworth, 10 
 L. R. Ex., 142; aflSrmed, 1 Ex. D., 36. 
 
 6. The premises were purchased as lot " A," 
 and the buildings were insured'as being upon 
 that lot; but upon examination, it was ascer- 
 tained they were upon lot B, having been put 
 there by mistake. Held, insured had an in- 
 surable interest in the buildings, for he was 
 entitled as against the owner of the land to 
 the value of the improvements, or a title to 
 the land on payment or tender of the value of 
 it Stevenson o. London and Lancashire F%re 
 Ins. Co., 26 U. C. Q. B., 648. 
 
 YII. Who cahnot insure. 
 
 1. One part owner of a vessel has no au- 
 thority as such to procure insurance for the 
 other part owners; and if he does, the others 
 
 must show that they authorized it, or that 
 thoy subsequently, and within proper time, 
 ratified it (citing Foster s. United States Ins. 
 Co., 11 Pick., 85; Finney «. Pairhaven Ins. 
 Co., 5 Met., 192). But signing a note for tlie 
 premium and commencing a suit to recover 
 for the loss by all the owners ratified the act 
 of the one. Blanehard v. Waite, 28 Me., 51. 
 
 2. The charterer of a vessel is not authorized 
 to insure her for the owner, nor has one part 
 owner as such, a right to insure her for another 
 part owner. Sawyer v. Freeman, 35 Me., 542. 
 
 3. The ship's husband has no authority to 
 insure the whole or any part of the vessel 
 without express authority of the owner. Tur- 
 ners V. BurroiDS, 8 Wend., 144 ; French v. Blaoh- 
 house, 5 Burrows, 2727 ; Bell v. Humphries, 2 
 Slarkie, 345. 
 
 YIII. Inteeest or no interest. 
 
 " Interest or no interest." Held, the insured 
 need not prove any interest under such»a 
 policy, nor could the insurer controvert that 
 question. Depaba v. Ludlow, 1 Com., 360. 
 
 IX. What proof is necessary. 
 
 1. When the insurance is upon the life of 
 a third person or the policy is held by a per- 
 son as assignee, it is necessary to prove an 
 insurable interest in the life. St. John v. 
 American Mutual Life Ins. Co., 13 N. T., 81 ; 
 2 Duer, 419. 
 
 2. Proof of an insurable interest must be 
 given at the ti-ial, and if possession is relied 
 upon for that purpose, in the absence of 
 proper title, it must be an actual occupancy. 
 niinois Mutual Fire Ins. Co. v. Mo/rseillce 
 Manuf. Co., 6 111., 236. 
 
 X. Evidence of. 
 
 1. The policy was upon property occupied 
 by insured. Held, under the code, the polioy 
 itself was sufficient proof of the insurable in- 
 terest. People's Fire Ins. Go. v. Heart, 24 
 Ohio St., 331. 
 
 2. On buildings. Stipulated: "The interest 
 of the insured shall be truly stated in the 
 policy, and set forth in the proofs of loss." 
 The record of the property showed that it 
 was in D., and not in the plaintiff. Held, 
 plaintiff had a right to prove that he bought 
 
 359 
 
ri9 
 
 INTEREST MONET AND USUET — INTERNATIONAL LAW. 
 
 720 
 
 Miscellaneous. 
 
 the property with his own money; that the 
 conveyance was made to D. for him to hold 
 the property for the plaintiff; that D. never 
 paid anything for it. Tuekerman «. Home In». 
 Co., 9 R. I., 414 
 
 INTEREST MONEY AND USURY. 
 
 1. The vessel was never heard of. Mdd, 
 interest commenced to run after one year and 
 thirty days from the time when she was last 
 beard from. Eallett v. Phmnix Ins. Co., 2 
 Wash. C. C, 379. 
 
 2. Interest may be allowed upon a partial 
 loss, if, under all the circumstances, the jury 
 consider it right. Anon., 1 Johns., 315. 
 
 3. Interest shall be recoverable from the 
 time the loss is payble by the terms of the 
 policy. DeUmguema/re v. Tradesman's Ins. Co., 
 2. Hall, 889. 
 
 4. If the preliminary proofs are so uncer- 
 tain and indefinite that insurers cannot, from 
 them ascertain the amount uf the loss, interest 
 ought not to be allowed. McLaughlin v. Wash- 
 ington County Mut. Ins. Co., 2.S Wend., 525. 
 
 5. When insurers have been always ready 
 to pay the claim, but have been prevented by 
 trustee process, interest cannot be allowed. 
 Oriental Bank v. Tremont Ins. Co., 4 Met., 1. 
 
 6. Interest is to be allowed from the time 
 the loss was due, not inpluding any amount 
 which the insurer was willing to pay, but re- 
 strained by trustee process. Nemins v. Rock- 
 ingham, Mutual Fire Ins. Co., 25 N. H., 22. 
 
 7. Interest is not always recoverable as a 
 matter of right; it should be left to the jury 
 to allow it or not, upon the question of dam- 
 ages. Neuiaon u. Douglass, 7 H. & J., 417. 
 
 8. She discharged part of her goods into 
 launches and was then compelled by a tem- 
 pest to put to sea with the balance of cargo, 
 and was never heard of. Hdd, interest did not 
 begin to run till a year after she was last 
 heard of. Osacar v. Louisiana State Ins. Co., 
 17 Martin (La.), 386. 
 
 9. The interest insured was that of a mort- 
 gage, and the insurer pleaded' that as to $345, 
 it was unlawful Interest, because it was usur- 
 ons, and that the whole of the interest money 
 became forfeited. Held, the demurrer to the 
 
 plea was properly sustained, for the statute 
 reads "that no incorporation shall hereafter 
 interpose the defense of usury in any action." 
 Hartford Ins. Co. v. Hodden, 28 111., 260. 
 
 10. The contract provided for the payment 
 of a sum certain upon the happening of a 
 certain contingencyi Held, when the contin- 
 gency occurred the obligation became abso- 
 lute, and the sum presently due, which it was 
 the duty of insurer to pay, and on refusal or 
 neglect to pay, interest thenceforth became 
 payable. Brown v. Bailway Passenger Ass. 
 Co., 45 Mo., 221. 
 
 11. The statute allows interest where the 
 delay is vexatious. Held, not necessary to ex- 
 plictly prove that the delay was vexatious; 
 the jury may infer it from all the facts in the 
 case. Brown v. Bailway Passenger Ass. Co., 
 45 Mo., 211 ; Loi^cwood d. Atlantic Mut. Ins. 
 Co., 47 Mo., 50. 
 
 12. The insurers admitted an average loss. 
 Insured refused it, claiming the right to 
 abandon and recover for a total loss. Held, 
 interest could not be allowed upon the aver- 
 age loss. DePeau v. Bussell, 1 &ev., 441; 
 Budd V. Union Ins. Co., 4 McCord, 1. 
 
 13. Interest is allowed bylaw upon mer- 
 cantile securities only, or where there has 
 been an express promise to pay it; and so, in 
 covenant loss payable six months after proof 
 of death, it was Jield, interest did not begin to 
 run six months after proof of death. Higgins 
 V. Sargent, 2 B. & C. 348; 3 D. & R., 613. 
 
 14. The claimant sought to recover interest 
 on the claim, but the policy was lost, which 
 caused the delay in making payment under it 
 Held, interest should not be allowed. Bush- 
 nan v. Morgan, 5 Sim., 635. 
 
 1 5. The trustees of certain policies filed a 
 bill to ascertain the rights of the different 
 claimants, whose conflicting interests pre- 
 vented the insurers from paying the claims. 
 Held, interest money could not be charged 
 against the insurers (overruling 8. C, 6 Irish 
 Ch., 523). French v. Boyal Exchange Ass. Co., 
 7 Irish Ch., 523. 
 
 INTERNATIONAL LAW. 
 
 (See Law ov Ki.tioiib.) 
 
 360 
 
721 
 
 INTERPLEADER, BILL OP. 
 
 r22 
 
 Miscellaneous, 
 
 INTERPLEADER, BILL OF. 
 
 1. Parties insured the property .ind applied 
 for partition. Sale was ordered and made, but 
 it was not confirmed, nor were the convey- 
 aaces made at the time the fire occurred. One 
 of the insured was the purchaser. Held, he 
 was entitled to the insurance money so soon 
 as the conveyance should be completed. Qates 
 V. Smith, 4 Edw. Ch., 703. 
 
 2. A building insured sustained damage by 
 fire. One person was entitled to a life estate 
 in it, and another to the reversion. iTeW, the ten- 
 ant for life, having repaired the damage at a 
 cost exceeding the fire damage due by the in- 
 surer, was entitled to the insurance money. 
 Brough c. Siggins, 2 Grattan, 408. 
 
 S. August 31, 1841, the life of S. was in- 
 sured, £3,999, for Margaret. She assigned the 
 policy to D. by way of security for a debt Mar- 
 garet became bankrupt November 38, 1843, 
 and S. died in July, 1843. D. applied for the 
 insurance money and brought an action on 
 the policy in the name of Margaret, against 
 the insurers. The bankrupt's assignee de- 
 clined to interfere or give consent to the pay- 
 ment of the money. Held, a proper case for 
 a bill of interpleader; that the assignment of 
 the policy to D. was by way of security, leav- 
 ing a possibility of an interest in the bank- 
 rupt which would have passed to her assignee, 
 and the case was therefore a proper one for 
 interpleader, ^enn t>. Edmonds, 5 Hare, 314; 
 overruled, Detborough o. Harris, 5 De G. M. & 
 G.,43S. 
 
 4. An action was commenced at law to re- 
 cover upon a life insurance policy, against the 
 surviving director, who executed it, and he 
 died pending the action. The insurance com- 
 pany filed a bill against the plaintiff and other 
 persons who claimed under the policy, pray- 
 ing that they might be compelled to inter- 
 plead. Held, the persontil representative of 
 the deceased defendant was a necessary party; 
 that where interest might be recovered at law, 
 the party seeking the interpleader must offer 
 to pay it, and the aflSdavit accompanying the 
 bill must state not only that the nominal 
 plaintiff docs not collude, but that he believes 
 the company which he represents does not 
 collude with either of the defendants. Big- 
 nold 0. AudUind, 9 L. J. (N. S.) Ch., 366. 
 
 5. Policy to H., payable three months after 
 
 the death of G. April 17, 1829, insurer received 
 notice of an assignment of the policy by way 
 of mortgage, the assignee being appointed the 
 attorney of H. to demand and sue for the mon- 
 eys that might become due under the policy, 
 and to discharge it. In 1834, H. became insol- 
 vent, and all his property was assigned to S. 
 G. died in 1853, when the policy and its accu- 
 mulations amounted to £4,635. August 15, 
 1853, H. gave notice to the company not to 
 pay any of the money to any person not au- 
 thorized by letter from him. An action at law 
 was commenced on the policy by the assignee 
 of the policy. The bill alleged that H. and S. 
 threatened to commence actions to recover 
 the money due. Held, in order to establish a 
 case for an interpleader, it must appear tliat 
 there were conflicting claims when the bill 
 was filed, not occasioned by the act of the 
 party seeking interpleader. Held, aUo, the 
 claim of H. to the policy was entirely out 
 of the case, for his beneficial interest had 
 passed to the provisional assignee, whose 
 claim was not adverse to that of the assignee 
 of the policy, for it was nothing but a claim 
 to take whatever should be left after the as- 
 signee of the policy should be satisfied. Held, 
 also, the assignee of the policy being only a 
 mortgagee, the company had no right to call 
 upon him and the provisi-mal assignee to in- 
 terplead. Deshorough o. Harris, 5 De G. M. & 
 G., 439, overruling i'Vnn t. Edmonds, 5 Hare, 
 314 
 
 6. The defendant had a branch office in 
 London, but its principal place of business 
 was in Edinburg, from which it issued a pol- 
 icy payable to the executors, administrators nr 
 assigns of the insured, at the oflHce of the com- 
 pany, in London. The executor and the equi- 
 table mortgagees presented conflicting claims 
 to the insurance money. The company com- 
 menced an action in the court of session, in 
 Scotland, compelling them to interplead, and 
 this action was brought in England to compel 
 the company to pay the money into court. 
 HM, the company, having admitted that they 
 had no interest in the money, must pay it into 
 court without being indemnified, notwitli- 
 standing the Scotch court might require it to 
 be paid therein. * Cook c. Scottish EguitMe 
 Life Ass. Society, 26 L. T. (N. S.). 571. 
 
 7. J. effected an insurance on life of A. for 
 £1,700, who afterwards effected another on his 
 own life for £433, in the same company, and 
 
 361 
 
723 INTERPRETATION — INTOXICATING DRINKS AND INTEMPERANCE. 724 
 
 Miscellaneous. 
 
 assigned both with certain other property to J. 
 in ti-ust. J. was to repay to himself certain sums 
 advanced by him for A., and other debts, the 
 surplus to be used as a provision for the 
 daughters of A. J. appointed C. and L. his 
 executors, and died leaving a will which re- 
 cited the assignment, bequeathed £1,300 to his 
 daughter, and made his widow residuary leg- 
 atee. The executors of J. claimed the amount 
 of both policies from the company. One 
 daughter and two sons of A. claimed part of 
 the policies. It appeared that one of J.'s ex- 
 ecutors had mortgaged the £1,700 policy to T., 
 who held it The administrator of A. served 
 notice on the company, with a copy of his 
 grant of administration. The executor of J. 
 commenced an action on the policy for £1,700. 
 The company filed this as a bill of inter- 
 pleader, and offered to pay, if a release from 
 the parties named should be delivered. MelcL, 
 as to the policy for £1,700, the company had 
 no right to look after the trusts, and therefore 
 the bill as an interpleader was improperly 
 filed and should be dismissed ; that as to the 
 £425 policy, the administrator of A. claimed 
 the money to pay the testator's debts, and the 
 executor of J. demanded it, therefore, as to it, 
 the bill was good as an interpleader. Qlynn 
 V. Locke, 2 Con. & Law., 21 ; s. c, 5 Irish Eq. 
 R., 61. 
 
 INTERPRETATION. 
 
 (See CoHBTBUcnoH.) 
 
 INTOXICATING DRINKS AND INTEM- 
 PERANCE. 
 
 1. The policy was predicated upon ques- 
 tions and answers in the application stated, 
 the former printed and the latter written, all 
 of which were warranted, by the terms of the 
 policy, to be true. These questions were 
 asked : " Have you ever been addicted to the 
 excessive use of any alcoholic stimulants or 
 opium ? Do you use habitually intoxicating 
 drinks as a beverage ? " To bith he answered 
 " no." Held, it was not a statement that he had 
 never been addicted to the use of intoxicating 
 liquors at all, but that he had never been ad- 
 362 
 
 dieted to the excessive or intemperate use of 
 them ; and the answers were not untrue, un- 
 less he had been addicted to an excessive or 
 intemperate use of alcoholic stimulants; the 
 occasional use of intoxicating liquors did not 
 make the answers untrue, nor would they be 
 rendered untrue by any use of intoxicating 
 drinks which did not make his habits thoKe 
 of a man not uniformly strictly sober and tem- 
 perate. Swick V. Home Ins. Go., 2 Dil. Cir. 0., 
 160. 
 
 2. Stipulated : " If the person insured shall 
 become so far intemperate as to impair his 
 health, the policy shall be void." Held, the 
 onus was upon the defendant to show that this 
 condition was violated. N. D. 111., per Hop- 
 kins, J. Jarvis v. Connecticut Mtitval Life 
 Ins. Co., 8 Chi. Leg. News, 227. 
 
 3. Policy against injury by accideats. 
 Stipulated : " No claim shall be made whin 
 the death or injury shall have happened while 
 the insured was, or in consequence of having 
 been, under the influence of intoxicating 
 drinks." He drank champagne and whisky 
 with one of his associates, but it did not ap- 
 pear that he was so far under the influence of 
 liquor as to indicate it in his conduct when he 
 sat down to dinner at 5 P. M. At dinner, 
 champagne and whisky were upon the table, 
 and he drank of both. While at dinner the 
 parties commenced talking about shooting; 
 the deceased said to one of his associates that 
 he might shoot at his ear for ten cents, aaid 
 soon after a shot was heard. On going into 
 the dining room deceased was found on his 
 knees on the floor in great pain. The ball had 
 struck the deceased in the abdomen, passed 
 through one lobe of the liver, and lodged 
 in the muscles of the spine. Held, the in- 
 tention of the stipulation was to require 
 insured to limit the use of intoxicating liquors 
 to such a degree that he would retain full con- 
 trol over his faculties ; if he unnecessarily ex- 
 posed himself to danger, either by his own act 
 or the act of others, while under the influence 
 of intoxicating liquors, insurers were not lia- 
 ble. BTiader «. Railway Passengers Ass. Co., 
 3 Hun. (N. Y.), 424; s. c, 5 N. Y. S. C, 648. 
 
 4. In the application, these questions were 
 asked : " Is the party sober and temperate ? " 
 Answer. "Yes." Question. "What is the 
 present state of the health of the party?" 
 Answer. " Very good." Held, if at the time 
 the policy was issued insured was temperate 
 
r2o 
 
 IN TRUST, ON CONSIGNMENT, OR ON COMMISSION. 
 
 726 
 
 Miscellaneous. 
 
 and in gcwd health, the representation was 
 verified j that his death was caused by intem- 
 perance was immaterial. Beicfiard v. Manhat- 
 tixn. Lift In». Co., 81 Mo., 518. 
 
 5. Policy founded upon representations and 
 declarations made in a written application, 
 stipulated : " To be void if any of the repre- 
 sentations are untrue." In the application it 
 was stated that he was sober and temperate, 
 and had always been so. The preliminary 
 proofs stated that he died of congestion of the 
 brain, caused by cold, derangement of the 
 excretory organs and overstimulation ; that he 
 was in the habit of using stimulants periodi- 
 cally j would go for months without liquor, 
 and never had delirium. The evidence estab- 
 lished the fact, that at the time he effected the 
 insurance he was addicted to the intemperalu 
 use of intoxicating liquor. Held, a verdict in 
 favor of the insured was clearly against the 
 weight of evidence, and must be set aside. 
 Mutual Benefit Life In>. Co. «. Solterhoff, 3 
 Cin. Sup. Ct., 379. 
 
 6. Stipulated: That the person insured 
 should be of sober and temperate habits, and 
 that he had made a declaration to that effect. 
 Plea, that he was not of sober and temperate 
 habits, but that he was of intemperate and 
 drunken habits, and so the policy was void. 
 Seld, to enable the defendant to defeat the 
 action, it was not nwjessary to show that he 
 was intemperate to such a degree as to injure 
 his health. Southeombe v. Mtrriman, 1 C. & 
 M., i286. 
 
 7. The party effecting an insurance must 
 communicate to the insurers every material 
 fact within his knowledge, which tends to 
 increase the hazard or to affect the question, 
 ■whether the life is a proper subject of insur- 
 ance ; if tlie person proposed is intemperate, 
 the person for whose benefit the policy is 
 made must communicate that fact, if it is 
 within his knowledge. Sawlint c. Deibor- 
 ough, 3 M. & Rob., 328. 
 
 m TRUST, ON CONSIGNMENT OR ON 
 COMMISSION. 
 
 (See IHBITSABLX Ihtkbist; Fouct.) 
 
 1. "Where a policy is applied for and 
 granted on a general stock of goods held on 
 
 trust or on consignment, it is not expected 
 that insurers should be informed as to the 
 ownership; and an omission to disclose the 
 ownership in sucli cases cannot be regarded 
 as an improper concealment. Phcenix Ins. 
 Co. V. Hamilton, U Wall., 504. 
 
 JS. Stipulated: '-Goods held in trust or on 
 commission must be insured as such." Held, 
 goods on commission upon which insured 
 had a lien for advances, were not covered by 
 the policy, because they were not specifically 
 insured as goods in trust. HHcJita v. 2i'ew York 
 La Fayette Ins. Co., 3 Hall, 373. 
 
 3. " On goods, the property of the insured, 
 or held by him in trust." Held, cloth, intrust- 
 ed to the insured for the porpose of being 
 manufactured into clothing, was within the 
 policy; nor was the amount of the loss to be 
 limited by the bailee's interest or lien for 
 charges. StUlweU v. Staples, 19 N. T., 401 ; 
 reversing s. c, 6 Duer, 63. 
 
 4. On goods, "by him held in trust," in- 
 sured represented that he was receiving goods 
 for sale on which he made advances; that the 
 consignors might not be able to repay tlie 
 advances, and that he wished to obtain insur- 
 ance to secure himself against loss by fire. 
 Held, the policy attached to goods consigned, 
 but that it covered only insured's interest in 
 them, and not the interest of the consignors. 
 Parks V. General Interest Ass. Co., 5 Pick., 34. 
 
 5. Property held by the tenant is " in trust," 
 and must be insured as such. Keeley v. In- 
 surance Go., 1 Phil., 175. 
 
 6. On hogs, cattle, and the product of the 
 same, and on salt, cooperage, and boxes, and 
 articles used in packing their own, or held by 
 them in trust or on commission, or sold but 
 not delivered, contained in their stone and 
 frame packing establishment, sheds and yardA 
 adjoining. The insured had goods on storage ; 
 they were not held for sale on commission. 
 Held, the words " in trust " were not to be con- 
 strued in a strict or technical sense, limiting 
 their operation to cases where the title to the 
 goods had been vested in a trustee ; they were- 
 to be regarded as covering goods not the 
 property of the insured, for goods held in 
 trust in the technical sense would be as much 
 the legal property of the insured as others 
 which belonged to them in their own right. 
 Home In*. Co. v. Favorite, 46 111., 363; Phmnix 
 Ins. Co. o. Favorite, 49 id., 359. 
 
 7. Stipulated: "Property held in trust or 
 
 S63 
 
r27 
 
 INVASION, KIOT, INSURRECTION, Etc. 
 
 798 
 
 Miscellaneous. 
 
 on commission must be insured as such, oth- 
 erwise it will not cover such property. By- 
 property held in trust, is intended property 
 held under a deed of trust, or under the ap- 
 pointment of a court, or held as collateral 
 security." Held, if the property was held 
 as security for debt, it would be protected, 
 but if held in trust secretly to defraud the 
 creditors of the real owner, it would not be 
 within it. Ayres 11. Sartford Fire Ini. Co., 17 
 Iowa, 176. 
 
 8. To A. & B. as corn and flour merchants. 
 " On corn and flour, the property of the i nsured, 
 or held by them in trust or on commission." 
 Held, it covered property which the plaintiffs 
 held as warehousemen, and which they were 
 not bound to insure, whether insured had liens 
 upon it for storage or not, for the goods of 
 customers were in trust, within the meaning 
 of the policy. Waters v. Monarch Ins. Co., 
 5 El. & Bl., 870; B. c, 2 Jnr. (N. 8.), 375; 25 
 L. J. Q. B., 102. 
 
 9. " On wheat, flour, sacks, etc. Goods held 
 in ti-ust or on commission must be insured as 
 such, otherwise the policy will not extend to 
 cover them." A part of the property destroyed 
 included wheat received by insured from farm- 
 ers, mixed indiscriminately, on which advances 
 li ad been made by i nsured. The farmer had the 
 right, by agreement with insured, to demand an 
 equal quantity of wheat of like quality, or mar- 
 ket price, on day of demand, and the insured 
 had the right to deliver wheat of like quality 
 and quantity, or pay the market price, ffeld, it 
 was not property held in trust, for an indeli- 
 ble incident of trust property is, that tlie 
 trustee can never make use of it for his own 
 benefit. Hence, insurers were liable for the 
 whole loss. Soutli Australian Ins. Go. n. Ban- 
 dell, 3 L. R. P. C, 101 ; 6 Moore P. O. C. (N. S.), 
 341; 23 L. T. (N. S.), 843. 
 
 10. " On merchandise, the insured's own, in 
 trust or on commission, for which they are 
 responsible in or on all the warehouses, vaults, 
 cellars, sheds, cranehouses, wharves, yards," 
 etc. Certain chests of tea were deposited in 
 bond, for which the warehousemen gave 
 wharfingers' warrants, deliverable to the per- 
 sons named therein, or their assigns, by in- 
 dorsement, upon payment of duty and ware- 
 house charges. The insured purchased the 
 teas from the importers, who indorsed the 
 warrants in blank, and delivered them to the 
 insured, who sold the teas to different persons ' 
 
 3a4 
 
 by sample, open credit three months, or cash 
 subject to discount, the sellers to pay all ware- 
 house charges up to the time the credit should 
 expire, and the purchasers to be liable for all 
 custom house duties. Each purchaser received 
 an invoice, stating the weights, marks, and 
 numbers of the chests, and the amount paya 
 ble. The sellers retained the warrants, and 
 were to do whatever was necessary to get the 
 teas cleared and delivered. The wharfingers 
 never received any notice of the sale, the in- 
 sured was not bound to insure, the purchasers 
 were not liable for any premiums paid for in- 
 surance, nor had the sellers charged the pur- 
 chasers with any such premiums. Insured 
 voluntarily paid to the purchasers the value 
 of tlie teas after they were consumed by fire. 
 Held, the words, " foi which they are responsi- 
 ble," controlled the rights of the parties; and 
 as the insured were not responsible to the pur- 
 chasers for loss by fire, it was not a loss with- 
 in the meaning of the policy. Jforth British 
 and Mercantile Ins. Co. ■». Moffatt, 7 L. R. C. P., 
 25 ; 8. c, 41 L. J. C. P., 1 ; 25 L. T. fN. 8.), 662; 
 20 W. EL, 114. 
 
 1 1. A coach builder effected insurance " On 
 his stock in trade, including goods in trust 
 and on commission." The pursuer sent his 
 carriage to the defender's premises for repairs, 
 where it was consumed by fire. Held, insured 
 was entitled to satisfiy his own loss first from 
 the money received of his insurers. Dal. 
 gleish v. Buchanan, 16 C. C. 8., 832; 26 8cot 
 Jur., 160. 
 
 "INVASION, RTOT, INSUERECTION, 
 CIVIL COMMOTION, MILITARY OR 
 USURPED POWER." 
 
 (See PoLicn . 
 
 1. Insurers were not to be liable for loss 
 caused by any usurped power. The authori- 
 ties blew up a building with gunpowder for 
 the purpose of arresting a conflagration. Held, 
 the loss was not within the exception, for that 
 applied only to a usurpation of the power of 
 government. Citg Fire Ins. Co. v. Corlies, 21 
 Wend., 367. 
 
 2. Stipulated: "No insurance against loss 
 by fire occasioned by mobs or riot." On Sun- 
 day, June 28, 1863, an organized military force 
 
729 
 
 INVASION, RIOT, INSURRECTION, Etc. 
 
 73a 
 
 MisceUaneous. 
 
 of Oxe Southern Confederacy advanced flrom 
 the borough of York to the borough of 
 "Wrightsville, to a bridge tlien across tlie Sus- 
 quehanna. The Union troops were on the 
 ■western side of the river. Tlie Confederates 
 attempted to cut off the retreat of the Union 
 troops ; and to frustrate that attempt, Are was 
 communicated to the bridge by oi"der of the 
 officer in command of tlie Union troops, tlie 
 fire extending to the property insured. Seld, 
 the Confederates were not a mob or rioters, 
 but a regularly organized public enemy ; Qiat 
 the act of burning the bridge was an act of 
 sovereignty executed by the regularly consti- 
 tuted authorities, and therefore not within the 
 saving clause of the policy. Harris v. York 
 Hut. Ins. Co., 50 Penn. St., 341. 
 
 3. Stipulated : " Insurer shall not be liable 
 to make good any lass or damage by fire 
 which may happen or take place by means of 
 any invasion or insurrection, riot or civil 
 commotion, or any military or usurped power." 
 The property was at a place occupied by the 
 forces of tlie United States. There was a 
 depot for military stores deposited in the City 
 Hall. Finding that the city could not be suc- 
 cessfully defended, and to prevent the stores 
 from falling into the hand of the enemy, the 
 commander ordered their destruction ; and the 
 City Hall was set on fire as a means of effect- 
 ing the purpose ; the fire communicated with 
 three buildings intermediate, before it reached 
 the building in which the goods insured were 
 stored. It was conceded that the setting fire 
 to the City Hall by the military power of the 
 United States was the proximate cause of the 
 loss, unless the attack of the enemy was to be 
 so regarded ; that the firing of the City Hall 
 was a lawful act, justified by necessity and 
 tlie motive which prompted it. Held, the fire 
 did not happen by means of the unlawful 
 attack of the enemy, nor by means of inva- 
 sion, insurrection, riot or civil commotion, for 
 although the attack of the enemy furnished 
 the motive for setting fire to the City Hall, it 
 was not the proximate cause of the fire; that 
 the act of the commander was lawful ; that 
 the policy did not except loss caused by tlie 
 lawful acts of the military authorities of the 
 government; the exception was confined to 
 unlawful acts by persons acting in hostility to 
 the government or in subversion of it ; hence 
 a fire caused by the lawful orders of the offi- 
 cer in command was not within the exception, 
 
 and the insurers were therefore liable for the 
 loss. Boon «. jEtna Fire Ins. Co., 40 Conn., 
 575. 
 
 4. Policy excepted loss of the life insured 
 " by means of invasion, insurrection, riot or 
 civil commotion, or of any militaiy or usurped 
 authority, or by the hands of justice." The 
 life insured was that of a slave who ran away, 
 and tlie regular patrol, in the discharge of 
 their proper duty in the district, endeavored 
 to apprehend him; but in his attempt to 
 escape, he was killed. Held, the loss was not 
 within any of the exceptions in the policy, 
 and the insurers were liable. Spruill v. North 
 Carolina Mutual Life Ins. Co., 1 Jones Law 
 (N. C), 126. 
 
 5. Stipulated: "Not liable for any loss or 
 damage which may happen by means of any 
 invasion, insurrection, riot or civil commo- 
 tion, or of any military or usurped power." 
 The national soldiers were overpowered and 
 compelled to surrender to the confederates, 
 and the latter held absolnre and exclusive 
 possession, at which time the property was 
 consumed by fire ; but as to the origin of the 
 fire, whether it occurred by the act of the 
 confederate soldiers, or was communicated 
 from their camp fires, there was doubt. There 
 was no evidence that the fire was authorized 
 by an order from the commander of the forces. 
 Held, to exonerate insurer, it was not neces- 
 sary to ascertain how or in what way the fire 
 originated, provided it was within the range 
 of one or more of the excepted causes ; the 
 real question was: "Did the fire happen by 
 reason of or in consequence of the military 
 and usurped power, and was that tlie proxi> 
 mate cause of the loss? If it was, the de- 
 fendant should be released ; if it was not, the 
 judgment should be for the insured. Barton 
 V. Home Ins. Co., 43 Mo., 156. 
 
 6. On cargo for Havre, to return ten per- 
 cent, in case no act of war took place between 
 France and Spain during the voyage. The 
 The French armies entered Spain April 8th; 
 and the vessel arrived at Havre on the 17th. 
 Held, invasion of Spain by the French armies 
 was an act of war. Pmitz v. Louisiana State 
 Ins. Co., 16 Miu-tin (La.}, 80. 
 
 7. Policy provided that the insurer should 
 not be liable to make good any loss by fire 
 which might happen by means of invasion, 
 insurrection riot, or civil commotion. The 
 evidence showed that the persons who set fire . 
 
 866 
 
731 
 
 INVOICES — JUDGMENT. 
 
 Miscellaneous. 
 
 to the premises were more than three, the fact 
 of a riot was established. Seld, insurer was 
 discharged, and it was not necessary to estab- 
 lish the fact of riot by the judgment of a com- 
 petent court in a criminal proceeding. Dupin 
 ■B. Mut. Ins. Co., 5 La. An., 482. 
 
 8. On ship ?7,000, valued at |40,000, "war- 
 ranted free from all claim from loss or dam- 
 age arising from or growing out of the col- 
 lision of foreign powers or of our government 
 with others." A fleet of United States vessels 
 of war had passed the forts below, and was 
 advancing up the river, the purpose of the 
 Confederate officers, then about to evacuate the 
 city, was to destroy all the cotton in New Or- 
 leans, whether in cotton presses or on ship- 
 board, and she was burned by order of the 
 confederate authorities. Seld, the destruc- 
 tion resulted from and grew out of the col- 
 lision between the United States and the Con- 
 federate power then in arms against the au- 
 thority of the United States and was a loss not 
 insured against. Marcy s. Merchants Mut. Ins. 
 Go., 19 La. An., 388. 
 
 9. Stipulated: "Not to be liable incase 
 the same shall be burned by any invasion of 
 foreign enemies, or any military or usurped 
 power whatsoever. A mob set fire to the 
 premises. Held, insurers were liable, for the 
 cause of the loss w^as not withitt the exception. 
 Driiikwater v. London Ass. Co., 2 Wils., 363. 
 
 1 0. Not liable for loss caused by civil com- 
 motion. A mob fired the premises. Held, a 
 loss by civil commotion. Langdale v. Mason, 
 Marsh. Ins., 688. 
 
 INVOICES. 
 
 (See BvmBHCB; Proops op Loss.) 
 
 1. In commercial cases, an invoice is prima 
 facie evidence of prime cost, and no more, if 
 it carries proof of its fairness, and is admissi- 
 ble as evidence in the cause. Oraham <o. Penn- 
 sylvania Ins. Co., 2 Wash. O. C, 113. 
 
 2. Stipulated : " Insured shall, if required, 
 produce his books of accounts and other 
 vouchers, and certified copies of all bills and 
 invoices, the originals of which have been 
 lost." Held, he was not bound to ask persons, 
 of whom he was in the habit of purchasing, 
 
 366 
 
 for new invoices. O'Brien v. Commercial Fire 
 Ins. Co., 6 J. & Sp. (N. Y.j, 517. 
 
 3. The policy required insured to produce 
 books of accounts and vouchers in support of 
 the claim. The books and papers of insured 
 were all burned in the fire, and insurer thtn 
 required insured to sign an instrument request, 
 ing the persons from whom he had purchased 
 goods to furnish the amounts of the invoices. 
 Held, the insured was not bound to do so. 
 Franklin Ins. Co. e. Culwr, 6 Ind., 137. 
 
 ISSUES. 
 
 (Se6 FLEAsnis.) 
 
 t. The jury must pass upon the issues that 
 the parties have seen fit to make. Harris n. 
 Protection Ins. Co., Wright, 548. 
 
 2. The insurer brought this action to re- 
 duce the policy, alleging concealments of ma- 
 terial facts and false representations. Held, 
 the issue must be whether, by misrepresen- 
 tation, or undue concealment or noustato- 
 ment of material facts as to the health or 
 habits of the deceased, the insurers were in- 
 duced to grant the policy. Sprett v. Boss, 10 
 S. & D., 1145. 
 
 JETTISON. 
 
 (See QsHEBAi. Atsb-vos.) 
 
 JUDGMENT. 
 
 (See iKcnuBBAin.'Ss; IiEvy or Exaonnox.) 
 
 I. Abbbst of. 
 
 II. No BElIAm>. 
 III. WHJLT is FENAIi. 
 
 I: Areest of, 
 
 When the judgment is arrested, no judg 
 meat can be properly entered for the defend- 
 ant; but the plaintiff is at liberty to begin de 
 novo. Baber v. Jones, 40 Ind., 4S6. 
 
733 
 
 JURAT— JURISDICTION, 
 
 734 
 
 Equity. 
 
 II. No KEMAND. 
 
 If the error is in the amount of tlie ver- 
 dict, and a proper sum can be ascertained by 
 calculation, the court will not remand the 
 case, but render such a judgment as ought to 
 have been given. Hanse v. New Orleant Ma- 
 rine and Fire Im. Co., 10 La. (O.S.), 1. 
 
 III. "What is final. 
 
 The court dismissed the action for mis- 
 joinder, and tlien allowed an amendment to 
 be made by the plaintiff, dismissing as to three 
 persons and proceeding to the other. Held, 
 upon applicalion to dismiss the writ of en-or 
 on tlie ground that there was no final judg- 
 nient,the application must be overruled. The 
 action was commenced by attachment, The 
 defendant appeared and pleaded. The court 
 dismissed the attachment for a defect in the 
 bond. Held, this was such a final judgment 
 as could be appealed from. Sutlierlin v. Un- 
 dei-v)riter'» Agency, 53 Ga., 443. 
 
 JURAT. 
 
 The defendant filed certain pleas, to which 
 was appended the following: " On this 7th 
 day of January, 1869, before me, the subscriber, 
 a justice of the peace of the state of Maryland, 
 in and for the city of Baltimore, personally 
 appeared the above named defendant and 
 made oatli in due form of law, that it is verily 
 believed that sufficient evidence will be fur- 
 nished at tlie trial of said cause to support the 
 same. G. F.Thompson, J. P." Held, the plea 
 must be stricken out. Kniekerhoeker Life Ins. 
 Co. V. Hoe»ke, 32 Md., 317. 
 
 JURISDICTION. 
 
 I. Equttt. 
 
 (a) WTten the court will entertain on ie- 
 
 Jialfof inturert. 
 
 (b) on lehalf ef insured. 
 
 (c) When the court will refuse to enter- 
 
 tain. 
 
 II. At law. 
 
 (a) What confers. 
 
 (b) WJien the court will decline. 
 
 (c) there is none. 
 III. Admibaltt. 
 
 I. Equht. 
 
 (a) Wh&n the court will entertain on 
 behalf of insurers. 
 
 1. Bill to set aside a judgment. It alleged 
 that the complainants were ignorant, at the 
 trial, of the defendant's fratidnlent acts and in- 
 tentions ; that since the trial, facts had been 
 discovered which would have defeated the 
 claim had they been given in evidence upon 
 the trial. Held, it was a proper case for the 
 interference of a court of equity. Ocean Ins. 
 Co. V. Fields, 2 Story, 59. 
 
 2. The insurers paid losses on several ship- 
 ments, to divere persons, and brought suit, by 
 bill in equity, to recover from the carriers. 
 Held, insurere had a right to resort to equity, 
 for the bill disclosed fifteen diflercnt contracts 
 of affreightment, adjusted by complainants, 
 and by joining them in one bill, much incon- 
 venience and vexation were prevented. 6arri- 
 son V. Memphis Ins. Co., 10 How., 312. 
 
 3. A court of equity, in a proper case, will 
 order a policy to be canceled. McEvers v. 
 Lawrence, Hoffm. Ch., 172. 
 
 4. The bill alleged that the policy was ob- 
 tained by the fraud of K., upon whose life it 
 was issued, in complicity with P., for the ben- 
 efit of the widow and children of R. The de- 
 fendants demurred. Held, the demurrer must 
 be overruled. Globe Mutual Life Ins. Co. v. 
 Reals, 48 How. Pr., 502. 
 
 5. Several insurers may join in equity in an 
 action for relief against an award. Bulkley n. 
 Starr, 3 Day, 553. 
 
 6. On representation of a loss, three insur- 
 ers paid their subscriptions, £600, into the 
 hands of a broker, who paid over £300 by au- 
 thority from them ; but the loss turned out to 
 be fraudulent, and one of the insurers brought 
 action against the broker to recover his £200. 
 Held, a court of law would not look into an 
 account to ascertain what each party was en- 
 titled to, hence there must be a joint action, 
 or the parties must go into equity. Silva v. 
 Linder, 2 Marsh., 437. 
 
 367 
 
735 
 
 JURISDICTION. 
 
 73f5 
 
 Equity. 
 
 7. Bill in equity by the underwriters of a 
 policy against whom actions at law had been 
 commenced. The bill charged fraud in value, 
 and a fraudulent loss ; prayed a discovery, and 
 that the policy might be declared void ; that 
 it might be canceled or the names of the com- 
 plainants stricken ofl'; also for a commission 
 to examine witnesses in Ireland, and an in- 
 junction to stay proceedings at law. To this 
 there was a demurrer, which was overruled. 
 French v. ConnoUy, 2 Anst., 454. 
 
 8. The defendant loaned £300 on a bottomry 
 bond, but had no interest in ship or cargo; 
 he msured £450 on the ship. She survived 
 the time limited in the bond, but was lost 
 within the time limited in the policy, and this 
 bill was brought to have the policy delivered 
 up and canceled. Held, the prayer of the bill 
 must be granted. Qoddart v. Oarrett, 2 Vern., 
 269. 
 
 9. The king granted a duty upon sea coal, 
 for his life, to Lord Townsend, who farmed 
 that duty, and the plaintiffs insured the farm- 
 ers of it: " That it should not determine before 
 Michaelmas, 1685, and that if if did, they would 
 pay defendants the several sums of money by 
 them subscribed, without abatement, and 
 without questioning what the defendants 
 might lose thereby, and without any farther 
 dispute, plea or pretense whatever." The king 
 died in February, 1684, and this bill suggested 
 that though the duty had expired by the de. 
 mise of the king, yet the payment of it had 
 not ceased, for by proclamation of the then 
 king, the duty was collected as in his brother's 
 lifetime ; that the insured were not damnified, 
 and therefore the insurers prayed to be relieved 
 against the policy. Held, by Jeffries, C. J., the 
 defendants must answer the bill. Kniglaly v. 
 Burdet, 3 Vern., 11. 
 
 10. Insurers made application to enjoin 
 proceedings on the ground that the material 
 facts for the plaintiff arose in the West Indies, 
 and for an application to examine witnesses 
 there. Held, it should be allowed. Chitty v. 
 Selwyn, 3 Atk., 359. 
 
 11. Bill brought by trustees not interested 
 in the profits, but they were liable to suit in 
 an action on the policy. The bill charged 
 fraud in effecting the insurance, and prayed to 
 have the policies delivered up to be canceled. 
 The shareholders were made party defendants 
 so far as they were known. The proceedings 
 were commenced before the life insured had 
 
 terminated. Held, upon demurrer to the bill, ' 
 the contract ought to be rescinded ; that the 
 plaintiffs occupied a better position than they 
 would after the death of the life insured. 
 Held, also, where the objection does not appear 
 upon the face of the instrument, it cannot be 
 said that the party complaining has the same 
 means of relief at law as in equity. Fenn o. 
 Craig, 3 You. & Coll., 316. 
 
 12. Policy on the life of Walter Palmer, 
 £13,000. William Palmer claimed the money 
 under an assignment of February 13, 1855, 
 nominally in discharge of a debt of £400. The 
 coroner's jury found that William feloniously 
 killed and murdered Walter. William was 
 convicted of the murder of one Cook, and 
 hanged. He was never tried for the murder 
 of Walter. Held, upon the proof given in the 
 case, Walter never had any interest in the 
 policy: that William had deliberately laid a 
 plan to defraud several insurance offices, 
 among them the plaintiffs, by procuring poli- 
 cies on the lives of persons, and then by his 
 own act precipitating the period at which 
 those insurances were to become claims; 
 hence the plaintiffs were entitled to have the 
 policy delivered to be canceled, because it was 
 obtained by fraudulent means for fraudulent 
 purposes. Prince of Wales Ass. Co. v. Palmer, 
 25 Beav., 005. 
 
 1 3. A plaintiff in equity filed his bill, stat- 
 ing that a policy had become void at law, and 
 claimed to have it treated valid in equity. The 
 bill was dismissed, and he then sued at law, 
 and this bill was brought to restrain the 
 action. Held, an injunction must be granted 
 to restrain the action at law. Tredegar v. 
 Windus, 19 L. R. Eq., 607. 
 
 14. A proposal was made to insure the life 
 of M. in the name of C, and to it was annexed 
 a declaration signed by M., declaring the con- 
 dition^ of his health. A receipt was given for 
 the premium, and an agreement made to issue 
 the policy; but this receipt was canceled and 
 a new one issued and forwarded to M. In- 
 surers alleged falsehood in tlie declaration of 
 M., and gave notice to both parties that they 
 would not issue the policy, and tendered the 
 premium to both, which was refused. Upon 
 an application for an injunction to restrain the 
 suit at law, the defendants contended that they 
 were not fettered by the terms of the proposal. 
 Held, in that case, an injunction must be grant- 
 
 . ed. Hancock v. Jfacnamara, 3 Irish Eq., 486. 
 
<3i 
 
 JURISDICTION. 
 
 738 
 
 Equity. 
 
 15. H. effected insurance on his life, and 
 assigned to H. in trust fqr J., a minor. The 
 deed eontained no declaration that trustee's 
 receipt should discharge the insurers, who 
 no\r refused to pay H., tbe executor of fl. He 
 threatened to proceed at law, and this hill was 
 broaght to restrain him. It was alleged that 
 he was attempting to obtain the money to 
 i^ply to his own use, in violation of the trust. 
 H«td, the court would let the case stand, upon 
 ccmditlon that the plainti^ bring the money 
 into court Femie b. Ma^ftiire, G Ir. £q. R.. 137. 
 
 (b) WJten tAe court will enteriain on 
 heAalf of insurad. 
 
 16. Admitting that the complaiuant had an 
 adequate remedy at law, and was not under 
 the necessity of resorting to a court of equity, 
 it does not follow that a court of chancery will 
 not entertain j1ui^diction. Where the appro- 
 priate, if not the oalj remedy before loss 
 would hare been in a court of equity, this 
 remedy is as appropriate i^er as before loss, 
 notwithstanding a count could have been 
 framed npon the agreement to insure, and an 
 action at law maintained upon it. And where 
 a court of equity would compel the deliver)- 
 of the policy, either before or after the loss, 
 the parties being properly in that court after 
 a loss, the court, in order to avoid delay and 
 expense, will pve such final relief as tiie cir- 
 cumstances of the case demand. Tagloe •. 
 Merchants In*. Co., 9 How., 390; Otrriih ». 
 Gtrman In*. Co., 55 N. H, 355. 
 
 17. The bill prayed the court to compel the 
 defendant to make a valid policy of insurance, 
 to which the defendant demurred. Held, the 
 demnrrer must be overruled, notwithstanding 
 insured had a complete remedy at iMr, for it 
 is now dte established doctrine that the in- 
 sured may res<irt to a court of equity to com- 
 pel Uie execution of a contract of insurance, 
 and being there, the court will decree com- 
 plete relief by compelling the payment of the 
 loss. CaroeiUer v. Mutual 5(^«*y Ins. Co^ 4 
 Sandf Ch., 408. 
 
 18. On dwelling house, store and goods 
 therein, to A. Subsequently B. purchased a 
 half interest in the goods only, to which in- 
 surer consented by indorsement. Htid, an 
 action at law could not be maintained npon it, 
 for there was no alignment ; hence, it was 
 rightfully prosecuted in chancery. Bc^ «. 
 Chaumso MvL Itu. Co^ 3 N. T., 53. 
 
 24 
 
 1 9. R was general agent of insurer for New 
 York and vicinity, with power to effect in- 
 surances and deliver policies. He employed 
 Bently at Albany to act as agent at that place for 
 the insurer under written instructions. Bentley 
 took an application for insurance on the car- 
 goes of a number of boi^ — Albany to Buff- 
 alo. A policy was made upon one of them, 
 but was returned to B. for correction, who de. 
 stroyed it Held, the insured must proceed in 
 equity. Chase n. Washiaffton Mut. Ins. Co., 12 
 Barb., 595. 
 
 20. Action to recover for loss of property, 
 alleged to have been insured under a parol 
 agreement made by defendant's agent Held, 
 where the action is for a specific performance, 
 the court will consider the agreeement which 
 ought to have been made as made, and will 
 decree the payment of the money which would 
 have been payable under it Post e. ^tna 
 Ins. Co., 43 Barb., 351. 
 
 21. The policy stipulated that the company 
 should not be liable for the loss till sixty days 
 after proof thereof. Before the sixty days 
 elapsed, this petition was filed to correct a 
 mistake in the policy, and for general relief, 
 to which there was a demurrer, and then there 
 was a supplemental bill filed, averring that 
 sixty days had elapsed, and praying complete 
 relief, to which there was a demurrer. Held, 
 although the matter presented belonged clear- 
 ly to a court of law, yet the court having taken 
 jurisdiction for one purpose, wiU retain flie 
 case for all piuposes (citing 1 Page Ch., 
 168; Story's Ev.. sees. 336, 389, affirming 
 the judgment of the court below). PranJUia 
 Ins. Co. v. MeCrea, 4 Greene, 229. 
 
 22. The insured applied to the insurer's 
 agent for insurance on his mill, and told him 
 the true condition of his title. The agent in- 
 formed him that he considered it unincum- 
 bered, his principals having previously in- 
 structed him to that affect He wrote it in the 
 application as unincumbered, the insured 
 signed it, and afterwards it was presented to 
 the company, who were informed of the con- 
 dition of the title, and they afterwards treated 
 the policy as valid, by making and collecting 
 assessments npon it Held, insurer led the in- 
 sured into a mistake; that being deprived of 
 his remedy at law, he had right to resort to a 
 court of chancery for relict Harris v. Colum- 
 biana Cowntji Mut. Ins. Co., 18 Ohio, 116. 
 
 23. Equity will decree the payment of a 
 
739 
 
 JTTRISDICnON. 
 
 740 
 
 Eqoify. 
 
 claim, where the insurer refases to issue a 
 policy according to a contract made with the 
 insurer's agent Palm v. Medina County Mut- 
 ual Fire Ins. Co., 20 Ohio, 529. 
 
 24. $4,000 on steamboat; other insurance 
 beyond $4,000, prohibited. Insured alleged 
 that the writing was not made according to the 
 agi-eement of the parties, because they had 
 agreed that she should be insured for $12,000, 
 including the sum insured by the respondents. 
 Held, insured had tlie right to resort to a court 
 of chancery to correct tlie mistake ; it was 
 enough to allege that the mistake existed, and 
 then appeal to the conscience of the respondent 
 for an admission of the fact ; and tlie fact be- 
 ing admitted, the court had jurisdiction to de- 
 cree such relief as the: complainant was entitled 
 to ; and the case being properly in court to 
 correct a mistake, the court would retain it for 
 all purposes and render complete relief. JFire- 
 meii's Ins. Co. v. Powell, 13 B. Mon., 311. 
 
 25. Where the parties are in a court of 
 equity for the purpose of reforming a writing, 
 the court will not only decree that the writing 
 be reformed, but will treat that which ought to 
 hare been done, as done and will decree com- 
 plete relief. Phanix Ins. Co. «. Bojfheimer, 46 
 Miss., 645. 
 
 26. Bill against the members of a mutual 
 insurance society, praying that the individual 
 members thereof should be compelled to contri- 
 bute to the payment of the loss. It appeared 
 that the persons constituting the society were 
 exceedingly numerous. Held, on demurrer, 
 that one member was entitled as against the 
 others, to have an account of what was due to 
 him, and to enforce contribution against the 
 others independently of any remedy by action 
 at law. Taylor v. Dean, 22 Bear., 429. 
 
 27. The complainant effected an insurance 
 with the association on his ship, by executing 
 the deed of settlement in conformity with the 
 rules, but a policy was not made. Held, 
 the complainant's remedy was in equity, to ob- 
 tain a declaration of his right to a specific 
 performance of the engagement entered into 
 by the committee. Harney v. Beekaifh, 12 W. 
 R.,819; affirmed, id., 898; 10 L.T. (N. 8.), 632. 
 
 (c) When tTis court will refuse to en- 
 tertain. 
 
 28. Bill in equity to deliver up and cancel 
 a policy. There was no allegation that in- 
 
 370 
 
 snred intended to assign it; but the bill did 
 allege that it was obtained by fraudulent rep- 
 resentations and fraudulent concealment. The 
 person whose life was insured had been dead 
 for some time and a suit at law was pending. 
 Held, it was proper to dismiss the bill without 
 prejudice, because the obligation to pay be- 
 came fixed, and the sums insured were a purely 
 legal demand ; hence, there was a perfect rem- 
 edy at law (citing Hipp «. Babin, 19 How., 
 271; Parker v. Lake Company, 2 Black, 545; 
 Boyce e. Grundy, 3 Pet, 210; Graves v. Insur- 
 ance Co., 2 Cranch, 215; 1 Stat at Large, 8S). 
 Insurance Co. e. Bailey, 13 Wall., 616. 
 
 29. Bill in equity to enjoin a judgment at 
 law against the insurer. It alleged that she 
 was represented to be about 250 tons burthen, 
 when she was in fact only 161 tons; and that 
 she was between six and seven years old, when 
 she was in fact nine and ten years uld. It was 
 also alleged, that these false representations 
 induced the complainants to agree to value 
 her in the policy at $10,000, when she was in 
 fact worth only 3,300. Held, if it was defense 
 at all it was one at law, not in equity, ifarine 
 Ins. Co., v. Hodgson, 7 Cranch, 332. 
 
 30. The policy contained a clause limiting 
 the time to one year in which suits could be 
 brought upon it. A bill was filed alleging 
 fraud, and a temporary injunction was granted 
 restraining the prosecution of the suit Held, 
 the injunction must be dissolved. Home Ins. 
 Co., V. Stanehfield, 2 Abb. Cir. C, 1; s. &, 1 
 Dil. Cir. C, 424. 
 
 31. The bill stated no other ground of 
 equitable relief but the assignment of the pol- 
 icy, and the refusal of the insurers to pay. 
 Held, The demand was properly cognizable at 
 law, and there was no good reason for coming 
 into a court of chancery. Carter v. United 
 Int. Co., 1 Johns. Ch., 463. 
 
 32. Stipulated: "Insurers shall, if they 
 see fit, within twenty days after proofs of loss 
 are received, elect to replace the goods de- 
 stroyed or damaged." Insured presented 
 proofs of loss, and commenced to move his 
 stock before the twenty days expired, and in- 
 surers brought this bill to prevent him flrom 
 doing so, and that they might take an inven- 
 tory of the goods. Held, they had no right to 
 an injunction. New York Fire Ins. Co. v. 
 Helavan, 8 Paige Ch., 419. 
 
 33. The agent of insured made a written «[>- 
 plication, viz : " $5,000 fire insurance-wanted 
 
741 
 
 JUEISDICnON. 
 
 7i-2 
 
 Equity. 
 
 for sismonQis, on a three or four stoiy brick 
 distUIeiy and machineiy; not mnningj no 
 fire about it; situated entirely detached, near- 
 est boilding being an office, one kandred 
 yards, on the bank of Mackinaw river, in the 
 town of Fomeyrille, Woodford county, 111. 
 Property valued at $33,000; privilege of 
 $5,000 other insurance. Gable end is frame. 
 December 16, 1858." The policy issued de- 
 scribed the premises: "His three or four 
 story brick building, and machinery in the 
 same; not running; no fire in or about it ; sit- 
 oated entirely detached, at," etc., etc. Seid, 
 there was nothing for a court of equity to re- 
 form; that the plaintiff could have leave to 
 proceed at law upon an amended petition. 
 Tesion «. Atlantie Mut. Iiu. Oo^ 40 Ho., 33. 
 
 34. Tlie complaint charged defendant with 
 gross fraud, misrepresentation and conceal- 
 ment, alleging that the policy was void; that 
 they had been fraudulently induced to pay the 
 claim, and prayed a discoveiy on oatii, and a 
 restoration of the money, ffeld, a court of 
 l;iw was the only proper tribunal for the de- 
 termination of questions of this sort. CharUs- 
 ion In*. Go. t. Potter, 3 Dessaus. Eq., 6. 
 
 33. Foreigners, copartners, fitted out a ship 
 from Ostend to China and return. D'Goneigh, 
 their agent, insured her and her cargo in Eng- 
 land, and took the i>olicy in his own name. She 
 called at Benoden, where the governor seized 
 her as an interloper, and disposed of ship and 
 cargo. The bill alleged that the policy was 
 taken in the name of D''6oneigIi, the complain- 
 ants' trustee, who reftised to let them sue in his 
 name; the facta happened abroad; their wit- 
 nesses were beyond seas, and they prayed dis- 
 covery and relief. Jleld, the demurrer to the 
 bin must be sustained. Dhegetoft v. London 
 Am. Co., Mos., 83; affinned, 4 Bro. P. C, 436. 
 
 36. The jHiIicy was in the name of a trustee. 
 Held, unless the trustee had refused to allow 
 his name to be used in an action at law, there 
 would be no gronnd for coming into equity. 
 MatUax v. LonAan Am. Co., 1 Atk., 545. 
 
 37. Insurer of ship brought a bill, suggest- 
 ing that the loss by capture was fraudulent, 
 and moved an injunction to stay proceedings 
 at law. There was an agreement in the law 
 coort to go to trial in one action and to be 
 bound by the event of that. The answer de- 
 nied aU fiund. Held, the insured should as- 
 sign 9SL his right in the ship and the benefits 
 of the decree made in admiralty, and upon 
 
 such assignment, the bill should be dismissed. 
 PringU e. Haritey, 3 Atk., 195. 
 
 38. The insurer filed this bill to have the 
 policy delivered up, on the ground that ship 
 was unseaworthy and had deviated. Meld, 
 equity would not interfere unless a case of 
 fraud was made out; and, in the absence of 
 fraud, the bill was dismissed. Thornton e. 
 Knight, 16 Sim., 509. 
 
 39. Profits of a partnership accruing upon 
 illegal insurances are not the subject of an ac- 
 count in equity. Knowlet v. Houghton, 11 
 Ves. Jr., 168. 
 
 40. Bill filed for an injunction to stay pro- 
 ceedings at law on a policy of insurance, and 
 for a commission to examine witnesses abroad, 
 but the money claimed was not brought into 
 court. Hdd, the proceedings at law would 
 not be stayed, unless the amonnt of the claim 
 was paid into court Ining e. Harrison, 3 L. 
 J. Ch., 48. 
 
 41. Plaintiffs proposed for insurance, which 
 was accepted, and a slip or application ini- 
 tialed by insurers. The plainti&' broker 
 knew the ship would be commanded by the 
 mate, and not by the master, but he did not 
 disclose that intention. The defendants made 
 no policy, and this was a bill in equity, to 
 have the slip stamped and used as the coo- 
 tracL Held, the court would not interfere. 
 Morocco Land and Trading Company v. Pry, 
 11 Jnr. (N. S.), 76 : 13 VT. R, 310; 11 L. T., 618. 
 
 42. The bill alleged that the policy was ef- 
 fected at an extra premium, and that by the 
 terms of the company's prospectus on reex- 
 amination from time to time, the suciety be- 
 ing satisfied of the removal of the cause for 
 charging the extra premium, would reduce iu 
 Hdd, it was a matter within the discretion of 
 the directors, whether they would rednce it or 
 not, and the court had no power to interfere, 
 though the insured had become thoroughly 
 healthy and sound. Manby «. Gresham Life 
 Ait. Co., 29 Beav., 439; 31 L. J. Ch., 94; 7 
 Jnr. (>'. S.), 383 ; 4 L. T. (N. S.), 347; 9 W. R, 
 547. 
 
 43. Bill filed to cancel a life policy, alleg- 
 ing that it bad been obtained by concealment 
 and misrepresentation. Held, although the 
 court had complete jurisdiction in such a 
 case, yet it would not interfere to withdraw 
 the case from jurisdiction of law courts. 
 Hoare v. Bremridge, 8 L. R. Ch., 23; s. c, 43 
 L. J. Chan^ 1 ; 27 L. T. (N. S.), 593. 
 
 371 
 
743 
 
 JURISDICTION. 
 
 744 
 
 At law. 
 
 44. The assignee brought suit upon the 
 policy in his own name, under 30 and 31 Vict., 
 ch.l44; the defendants filed this bill alleging 
 fraud in the assignor in effecting the policy, 
 and prayed to stay the action at law and can- 
 cel the policy. HM, the matter set up in the 
 bill was a good defense at law, hence no in- 
 junction would be granted. Scottish Amicable 
 Life Mb. 8oc. v. Puller, 2 Irish Eq., 53. 
 
 45. The bill stated facts amounting to a de- 
 fense at law, and prayed relief, which the 
 plaintiff was not at liberty to waive. Held, 
 the court would not grant an injunction to 
 stay proceedings at law. Anderson v. Bowling, 
 11 Irish Eq. R., 590. 
 
 II. At laav^. 
 
 (a) WJiat confers. 
 
 1. The parties were described in the decla- 
 ration as follows: " William Henderson Board- 
 man and Paschal Paoli Pope, both of Boston, 
 in the district of Mass., merchants and citi- 
 zens of the state of Mass., complain of the 
 Hope Ihs. Co., of Providence, a company 
 legally incorporated by the legislature of the 
 state of Rhode Island and Providence Planta- 
 tions, established in Providence in said dis- 
 trict." Held, the right of a corporation to liti- 
 gate in the courts of the U. S., rested upon the 
 citizenship of the members who composed the 
 body corporate; that a corporation, as such, 
 was not a citizen within the meaning of the 
 constitution. Held, also, the objection was not 
 too late, though it was not raised in the court 
 below. Hope Ins. Co. ■». Bomdman, 5 Cranch, 
 57; Bank of U. S. v. JDeceaiKc, id., 61; over- 
 ruled, Louisfoille B. R. Co. ■». Letson, 2 How., 497. 
 
 2. The cause, by agreement, was transferred 
 to the circuit court, in which the parties ap- 
 peared and went to trial without objection. 
 Held, no question of want of jurisdiction in 
 the court of common pleas could be raised, for 
 it is well settled, if the court has jurisdiction 
 of the subject matter, an appearance to the ac- 
 tion is a waiver of any objection to jurisdic- 
 tion (citing Bosley B. Parquar, 2 Blackf., 61; 
 Wilson v. Coles, id., 402; Clark u. The State, 4 
 Ind., 268; Mahon d. Mahon's Adm'r, 19 id., 
 324; McDougle v. Gates, 21 id., 65; Judah«. 
 Trustees of Vincennes University, 23 id., 272; 
 Cox 0. Pruitt, 25 id., 90; Smith v. Jeffries, id., 
 376; Garner «. Board, 27 id.. 328; Street v. 
 
 372 
 
 Chapman, 29 id., 142; Hamrick v. Danville, 
 etc., G. R. Co., 32 id., 347). Aurora Fire Int. 
 Go. V. JohnsoTi, 46 Ind., 315. 
 
 3. A corporation which has its office, and 
 does business, in the city of Charleston, is sub- 
 ject to the jurisdiction of the city court 
 Gromweil d. Charleston Insurance and Trust 
 Co., 3 Rich., 512. 
 
 (b) WTien the cov/rt will decUne. 
 
 4. A citizen of Alabama brought an actiou 
 in Massachusetts against the Mutual Life Ins. 
 Co. of New York, who had an agent in Massa. 
 chusetts ; and sought a restoration of his rights 
 in a policy of insurance which had lapsed for 
 nonpayment of premium. HeU, the court 
 would decline to exercise jurisdiction in the 
 case, and would refer the parties to the tribu- 
 nals of the state upon whose laws their relations 
 and rights peculiarly depended, where alone 
 they can be effectually and properly aJmiuis- 
 tered. Smith v. Mutual Life- Ins. Co., 14 
 Allen, 336. 
 
 (c) When there is none. 
 
 5. This was a writ of error from a state 
 court to the supreme court of the United States. 
 Held, in order to bring the present case witliin 
 the jurisdiction of this court, it must clearly 
 appear upon the face of the record, that in 
 respect to a law of the United States, a con- 
 struction was demanded in the state court and 
 decided contra the demand; if it appeared 
 that the construction sought was upheld by 
 the court, but thit the case was decided upon 
 other grounds, adversely' to the plaintiff in 
 error, then this court was without jurisdiction 
 to entertain the writ of error, and it must bs 
 dismissed. Ocean Ins. Co. o. Polleys, 13 Pet., 
 157. 
 
 6. If one removes to another state with the 
 avowed object of acquiring a right to sue in 
 the federal courts, it is not a fraud upon the 
 law, if his intention is to acquire a permanent 
 residence. The declaration must aver that he 
 is a citizen ; an averment that he is a resident 
 is not sufficient. Catlett v. Paeijic Ins. Co., 1 
 Paine, 594. 
 
 7. Default and judgment rendered Novem- 
 ber 19, 1872. On the 27th of same month, de- 
 fendant filed a motion, supported by affidavits 
 to set aside the judgment. The motion waa 
 continued to the next term, and was overrule'l 
 
745 
 
 JUEORS — KEEPING AND STORING PROHIBITED ARTICLES. 
 
 746 
 
 Miscellaneous. 
 
 January 17, 1873. Held, the court had no 
 power at the Januai'y term to vacate a judg- 
 ment rendered at the previous November term 
 (Pub. L. 1871, vol. 3, p. 344; citing Cook*. 
 Wood, 24 111., 295, wherein it was decided 
 that the court had no authority in a subse- 
 quent term to set aside a judgment rendered at 
 a prior term). National Ins. Go. v. Chamber of 
 Commerce, 69 111., 23. 
 
 III. Admiralty. 
 
 1. The insured commenced his action in 
 admiralty in personam, against his insurer, 
 upon a policy for the loss of a vessel called 
 the Albino. Held, the case was one witliin 
 the admiralty jurisdiction. Insurance Co. v. 
 Dunham, 11 Wall., 1. 
 
 2. Admiralty has jurisdiction in contracts 
 for marine insurance. Pexle «. Merchants Ins. 
 Co., 3 Mason, 27. 
 
 3. A policy of insurance is within the ju- 
 risdiction of the admiralty. Gloucester Ins. 
 Co. r>. Younger, 2 Curtis, 322. 
 
 4. This was an action at law to recover for 
 goods damaged and lost while they were in 
 the custody of the carrier, in a vessel navi- 
 gating the Mississippi. Held, the plaintiff 
 had his option, to proceed in admiralty or at 
 law; it did not come within that clause of the 
 constitution which excludes jurisdiction at 
 law and confines it to the admiralty forum. 
 Home Ins. Co. v. Northwestern Packet Co., 33 
 Iowa, 223. 
 
 JURORS. 
 
 (See CocBT xso Jcbt. 
 
 1 . The defendant's demurrer to the declara- 
 tion was overruled and judgment rendered. 
 The regular jury had been discharged, but 
 the court ordered the sheriff to summon a 
 jury, who assessed the damages. Held, upon 
 default a writ of inquiry may issue to have 
 the damages assessed, which may be executed 
 in term, or be directed to the sheriff to exe- 
 cute in vacation; and that executing it in the 
 presence of the court, taking a portion of the 
 regular panel or bystanders, was lawful. 
 .Mtna Ins. Go. d. Phelps, 27 111., 71. 
 2. A juror said that he had some prejudice 
 
 against insurance companies generally ; that it 
 was founded on his inability to comprehend 
 Uieir proceedings; but tliat his prejudice 
 would not affect his verdict Held, he was 
 not a competent juror, but the court would not 
 reverse the judgment, because satisfied that the 
 merits of the case are with tlie party prevail- 
 ing (citing Greenup «. Sloper, 8 111., 202). 
 Winnesheik Ins. Go. «. Sehueller, 60 111., 465. 
 
 3. The court refused to allow defendant to 
 ask a juror whether he had any opinion on 
 the question, whether a man is necessarily in- 
 sane who commits suicide. Held, an improper 
 question, because the opinion of a juror does 
 not in itself render him incompetent. It must 
 be such an opinion as might influence his 
 judgment McComas e. Covenant Mutual Life 
 Ins. Co., 56 Mo., 573 
 
 KEEPING AND STORING PROHIBITED 
 ARTICLES. 
 
 (See Repugnant Stipdlations.) 
 
 I. What is within the pkohibition. 
 II. NOT within the prohibitign. 
 
 1. What is within the prohibition. 
 
 1. Stipulated: "To be void in case tlie 
 premises containing the goods shall be appro- 
 priated, applied or used for the purpose of 
 storing or keeping any of the articles denom- 
 inated hazardous, or extra hazardous, cr in- 
 cluded in the memorandTim annexed, unless 
 permitted in writing, indorsed." The memo- 
 randum stated, if camphene is used in stores, 
 the risk will be subjected to an additional 
 charge of ten cents on each one hundred dol- 
 lars, and the premium for such use must be in- 
 dorsed on the policy. The store was lighted 
 with camphene until the fire occurred. Held, 
 the policy was void. Westfall o. Hudson Biver 
 Fire Ins. Co., 12 N. Y., 289 ; s. c, 2 Duer, 490. 
 
 2. On goods, hazardous and not hazardous. 
 These were enumerated in the .printed classifl- 
 cation annexed to the policy. Specially haz- 
 ardous and extra hazardous goods were also 
 enumerated in the same classification. Stipu- 
 lated: "To be void if any articles, goods or mer- 
 chandise, denominated extra hazardous or 
 specially hazardous, shall be kept, except as 
 
 373 
 
747 
 
 KEEPING AND STORING PROHIBITED ARTICLES. 
 
 748 
 
 What is within the prohibition. 
 
 herein specially provided for." Turpentine 
 was one of the articles denominated extra 
 hazardous. Insured kept about twenty gal- 
 lons of turpentine in stock. Held, fatal to a 
 recoveiy. Pindar v. Continental Int. Co., 38 
 N. T., 364. 
 
 3. " On stock in trade, described in the ap- 
 plication as dry goods, groceries, hardware, 
 crockery, glass, wooden wai-e, Britannia and 
 tin ware, stoves of various kinds, and various 
 other wares and merchandise." Stipulated: 
 " A use of the premises for keeping or storing 
 any articles denominated hazardous shall 
 avoid the policy." Rags were among those 
 denominated hazardous, and it was admitted 
 that insured had rags as a part of his stock in 
 trade in the premises insured. Held, insurers 
 had the right to suppose that nothing but the 
 artidles specially named in the application 
 would be kept or stored on the premises ; the 
 policy was void, notwithstanding a usage to 
 keep rags in stores of the same kind. Macom- 
 ber V. Howard Fire Ins. Co., 7 Gray, 257. 
 
 4. " On his two story frame building, occu- 
 pied by insured as a provision and grocery 
 store. Depositing, keeping or storing therein 
 any articles, goods or merchandise denomi- 
 nated hazardous, extra hazardous, or included 
 in the memorandum of special hazards, pro 
 hibited, except as herein specially provided 
 for." Permission was granted to keep and 
 sell burning fluid and gunpowder according 
 to law. Oil and sulphur, denominated haz- 
 ardous, and matches extra hazardous, were at 
 the time of the fire in the stock. If eld, a clear 
 violation of the contract. Whitmarsh v. Char- 
 ter Oak Ins. Co., 3 Allen, 581. 
 
 5. The memorandum of special hazards an- 
 nexed to the policy, prohibited the use of 
 burning fluid for lighting. The preliminary 
 proof stated that it was lighted with burning 
 fluid. Seld, a defense to the action. Camp- 
 bell v. Charter Oak Fire and Marine Ins. Co., 
 10 Allen, 213. 
 
 6. On building, stipulated: "If it shall be 
 unoccupied, or shall be used for the manufac- 
 ture of wool, cotton * * * or if occupied 
 or used for unlawful purposes * * * this 
 policy shall be void." It was occupied in 
 part for storing whisky, some of which was 
 sold in quantities from one glass to two gal- 
 lons without license. Held, insurers were dis- 
 charged. Kelly V. Worcester Mut. Ins. Co., 97 
 Mass., 284. 
 
 374 
 
 7. Stipulated: " Gunpowder, camphene, spir- 
 it gas, matches, etc., are not to be deposited, 
 used, kept or sold in any building insured or 
 containing any goods or merchandise insured.' 
 Held, a use of matches in the premises con- 
 taining the goods insured wouldnot avoid the 
 policy, unless the use was by authority ex- 
 pressed or implied of the insured. Mere 
 orders not to use them, if insured knew that 
 they were used, would not satisty the warranty. 
 The prohibition must have been enforced; 
 and if the use was habitual, the law imputed 
 to insured knowledge and permission. Farm- 
 ers and Mechanics Ins. Co. v. Simmons, 30 Penn. 
 St., 299. 
 
 8. On their i stock in trade, consisting of 
 nonhaz.irdous merchandise. Four classes of 
 risks were annexed — not hazardous, hazard- 
 ous, extra hazardous and special risks. There 
 were in the store three cans of oil, about a 
 barrel each, from which insured drew to sell, 
 also a barrel of oil and three boxes of glass, 
 all of which were in the class denominated 
 hazardous. Held, the description of the prop- 
 erty warranted it all of the class and character 
 described, which was in the nature of a con- 
 dition precedent, of which performance must 
 be shown before a recovery could be had. 
 Held, also, keeping for sale goods denominated 
 hazardous avoided the policy. Richards n. 
 Protection Ins. Co., 30 Me., 273. 
 
 9. Stipulated : " This policy shall be vitiated 
 by keeping gnnpower, saltpetre, fireworks, 
 naptha, benzine, camphene, or refined coal or 
 earth oils, or kerosene in quantities exceeding 
 five barrels." It was proved that insured kept 
 saltpetre in a keg on sale as merchandise. 
 Held, it avoided the policy, notwithstanding 
 insurers' agent knew that saltpetre was kept 
 in small quantities in other shops similar to 
 that insured. Commercial Int. Co. v. Mehlman, 
 48 111., 318. 
 
 10. Stipulated: "Petroleum, rock, earth, 
 coal, kerosene, or carbon oils of any descrip- 
 tion, whether crude or refined, benzine, benzoic, 
 naptha, camphene, spirit gas, burning fluid, tor 
 pentine, phosgene, or any other inflammable 
 liquid are not to be stored, used, kept, or 
 allowed on the above premises temporarily or 
 permanently, for sale or otherwise." Coal 
 oil was kept, stored, used, and allowed on the 
 premises after the policy was made and be- 
 fore the fire occurred. Held, insurers were re- 
 leased. Reeve v. Phoenix Int. Co., 23 La. An., 219. 
 
119 
 
 KEEPING AND STORING PROHIBITED ARTICLES. 
 
 730 
 
 What is not within the prohibition. 
 
 1 1. Stipulated : " If the insured shall keep 
 * * petroleum, naptha, gasoline, benzine, or 
 bensiiue varnish, or keep or use camphene, spir- 
 it gas, or any fluid or chemical oils, without 
 written permission in tl»e policy, then, and in 
 evety such case, it shall be void. Kerosene 
 oil may be used for lights in dwellings, and 
 kept for sale ia stores in quantities not exceed- 
 ing five barrels, to be drawn in daylight only." 
 Meld, the use of kerosene oil was prohibited 
 unless used as a light in a dwelling ; that if 
 the premises were not of that character, but 
 were a store, the keeping of a small lamp filled 
 with kerosene oil, left burning on the counter 
 in tlie store at night, after the gas was turned 
 ofi', as a protection against burglars, was a 
 yiolation of the terms of the policy, and made 
 it void. Cerf v. Some Ins. Co., 44 Cal., 320. 
 
 1 2. " On stock in trade of general merchan- 
 dise, including hazardous contained," etc. 
 Conditioned: "To be void if there shall be at 
 any time more than fifty-six pounds of gun- 
 powder on the premises, unless specifically 
 provided for in the policy." The fifteenth 
 condition specified certain goods as hazardous, 
 among which were turpentine, vitriol, gun- 
 powder, and lucifer matches. Plea, a quantity 
 of gunpowder exceeding fifty-six pounds was 
 on the premises before and at the time of the 
 fire. Replication: plaintiffs were dealers in 
 gunpowder, and dealt in it on the premises 
 described in the policy, of which insurers had 
 notice. Held, the replication was no answer 
 to the plea, for insurers, by the condition, re- 
 served to themselves the power of refusing to 
 allow more than fifty-six pounds of gunpow- 
 der upon the insured premises, hence the pol- 
 icy was void. MeExcan <o. Gvthridge, 13 Moore 
 P. CO., 304; 8W. K., 265. 
 
 13. On steamboat, against loss by fire only 
 (an ordinary fire insurance policy). Stipulated : 
 " If more than twenty pounds of gunpowder 
 shall be upon the premises at any time a loss 
 shall happen, such loss shall not be made 
 good." One package of gunpowder, about one 
 hundred pounds, was upon her at the time she 
 was destroyed. Held, the word " premises " re- 
 lated to the subject insured, and insurers were 
 released. Beacon Life and Fire Ins. Co. v. 
 Gibb, 1 Moore P. C. C. (N. S.), 73 ; 9 Jur. (N. S.), 
 185; 7 L. T. (N. S.}, 574; 11 W. R., 194. 
 
 14. Stipulated: "If there shall be at any 
 time more than twenty-five pounds of gun- 
 powder upon the premises, the policy shall be 
 
 void." Defendant pleaded a breach of the 
 condition, and plaintiff replied that the gun- 
 powder was placed upon the premises without 
 plaintifi^s privity; that they had used every 
 exertion, without success, to procure a vessel 
 to take it away, and that long before the fire 
 reached the premises it was thrown into the 
 harbor. Held, no answer to the plea; that de- 
 fendantwas discharged. Faulkner v. Central 
 Fire Ins. Co. qfNew Brunswick, 1 Kerr, 279. 
 
 11. What is hot within the peohi- 
 
 BITION. 
 
 1. Stipulated: " If gunpowder, phosphorus, 
 saltpetre, * * * are kept for sale, stored 
 or used on the premises in quantities exceeding 
 one barrel, without written permission in or in- 
 dorsed on this policy, it shall be void." Held, 
 the words, " In quantities exceeding one bar- 
 rel at any one time," related to all of the 
 articles specified, and a plea setting up, that 
 the insured did keep gunpowder on the prem- 
 ises, without written permission or permission 
 indorsed on the policy, was not sufScient to 
 show a violation of the condition, for it did 
 not appear that it was kept in quantities ex- 
 ceeding one barrel. Insurance Co. e. Slaughter, 
 12 Wall., 404. 
 
 2. Stipulated: "The premises shall not be 
 used for storing therein any articles specified 
 in the memorandum of hazards," among 
 which were oil and spirituous liquors. The 
 building was used as a retail grocery store, 
 in which was kept for sale a cask of oil, a 
 barrel of rum, a cask of Jamaica spirits, and 
 a pipe of gin. Held, not a storing within the 
 meaning of the policy. Langdon e. EquituMe 
 Ins. Co., 1 Hall (N. T.), 225 ; 6 Wend., 623. 
 
 3. Depositing gunpowder in a building for 
 the purpose of blowing it up, to arrest a con- 
 flagration, is not storing it within the mean- 
 ing of the policy. City Fire Ins. Co. v. Corlies, 
 21 Wend., 367. 
 
 4. Policy prohibited use of building for 
 storing or keeping therein certain articles 
 denominated hazardous. Held, a mere tem- 
 porary or casual deposit was not within the 
 prohibition. Hynds o. Schenectady County Mut. 
 Ins. Co., 11 N. Y., 554; 16 Barb., 119. 
 
 5. Stipulated : " Camphene, spirit gas, burn- 
 ing fluid, or any other inflammable liquid, 
 when used in stores, warehouses, or manu- 
 factories as a light, subjects the goods therein 
 
 875 
 
Vol 
 
 JS-jiJiruMU B.r*u biukunu rjttuH i nrxjiiu AitxiUJuaB — LiAijujiiS. 
 
 752 
 
 What is not within the prohibition, etc. 
 
 to an additional charge, and permission for 
 such use must be indorsed on the policy." 
 Held, the use of kerosene was not witliin the 
 exception, unless it was accompanied by a 
 finding, that it was inflammable, but as there 
 was no proof as to that fact, the court would 
 refuse to take judicial notice of its qualities. 
 Wood V. Northwestern Ins. Co., 46 N. Y., 421. 
 
 6. Stipulated : " To be void if the prem- 
 ises shall be used for the storing or keeping 
 therein " certain goods designated, among 
 which was crude petroleum. The plaintiff 
 kept upon a shelf in his room, a jug contain- 
 ing two or three quarts of crude petroleum, 
 for the purpose of applying it to remove a cu- 
 taneous disorder from his body. Held, this 
 was not storing or keeping, within the mean- 
 ing of the contract. WiUiamg v. Fireman's 
 Fund Ins. Co., 54 N. T., 569. 
 
 7. On merchandise. Stipulated: "If the 
 risk shall be increased by any means what- 
 ever, within the control of the insured, the 
 policy shall be void." Also, " The keeping of 
 petroleum for sale or storage, or its use for 
 lighting, prohibited." Insured kept a jug 
 containing crude petroleum, which he used 
 for the purpose of anointing his person. The 
 court refused to charge tliat if the keeping of 
 petroleum increased the risk, the plaintiff 
 could not recover. Held, error, for although 
 the plaintiff had the right to keep it for the pur- 
 pose named, he had not the right to do so if it 
 increased the hazard. Williams v. People's Fire 
 Ins. Co., 57 N. Y., 274. 
 
 8. Building insured " As a dwelling house," 
 prohibited from being used for purposes de- 
 nominated hazardous, or from storing in it 
 goods denominated hazardous. Spirituous 
 liquors and the trade of a tavern keeper were 
 classed in the proposals as hazardous. Held, 
 keeping a boarding house was not within the 
 prohibition. Held, also, keeping liquors in 
 the house, to be consumed by the family, or 
 to be sold to the boarders, was not within the 
 prohibition, for that was not storing them. 
 Uafferty o. New Brunswick Fire Ins. Co., 18 N. 
 J., 480. 
 
 9. On a stock in trade. The insured was 
 prohibited from appropriating, applying or 
 using the store for keeping or storing therein 
 hazardous goods. Cotton in bales was de- 
 nominated hazardous, and the defendant re- 
 quested the court to instruct that if the plaint- 
 iffs had in their stock, cotton in bales, at the 
 
 876 
 
 time of the flte, the action could not be main- 
 tained. Held, keeping in their stock in trade 
 a hazardous article was not appropriating, 
 applying or using the store for the keeping or 
 storing therein hazardous goods (citing New 
 York Eqitable Ins. Co. «. Langdon, 6 Wend., 
 28) ; that in order to constitute a breach of the 
 condition, the keeping must be the sole or 
 principal object of the deposit, or it must 
 appear that it increased the risk. Moore v. 
 Protection Ins. Go., 29 Me., 97. 
 
 10. Stipulated: " If gunpowder, camphene, 
 spirit gas, naptha, benzine or benzole, chemi. 
 cal, crude or refined earth oils are kept or 
 used on the premises without . consent, the 
 policy shall be void." Kerosene oil was used 
 to light the cabin and saloon of the boat. Sbe 
 was consumed by fii'e. Held, tbe maxim jws- 
 eitur a sociis applied; honce the meaning of 
 the general words shall be ascertained by re- 
 ferring to the preceding special words; that 
 the term refined coal or earth oils, as used in 
 this policy, must be construed to mean only 
 those articles or substances included in the 
 general description ; that as kerosene was not 
 within the general description, the use of it 
 was not prohibited, and there was no breach 
 of the warranty (citing Clinton o. Hope Ins. 
 Co., 45 N. Y., 454). Morse «. Buffalo Fire and 
 Marine Ins. Co., 30 Wis., 534. 
 
 11. Stipulated: "The keeping of gunpow- 
 der for sale or on storage shall render the 
 policy void." A quantity not exceeding two 
 kegs of gunpowder, was kept for retail, m 
 accordance with a custom in similar stores. 
 Held, the policy was valid. The storing or 
 vending of oil was prohibited, and then fol- 
 lowed these words: "So long as the same 
 shall be so appropriated, applied or used, 
 these presents shall cease and be of no force 
 or effect." The day before the fire, a barrel of 
 oil for painting was placed in a back room, in 
 which were some bunches of cotton yam. 
 Held, no defense to the action. Leggett «. 
 .^tna Ins. (Jo., 10 Rich., 202. 
 
 LACHES. 
 
 Application on the law side of the court to 
 set aside an agreement was refused and this 
 bill was filed more than three years after in- 
 surers had notice of plaintiff's claim and more 
 
733 
 
 LAWFUL CONTRACT— LEX LOCI COM-RACTUS. 
 
 754 
 
 Miscellaneous. 
 
 than two years after the respective counsel had 
 agreed upon the questions in issue Held, to 
 grant the relief asked would be to reward in- 
 attention and laches at the expense of Uie par- 
 ty who had been vigilant in invoking the as- 
 sistance of the court to secure his rights. 
 Tkuing v. Cheat Western Ins. Co., Ill Mass., 
 93. 
 
 LAWFUL CONTRACT. 
 
 (See CosTRAcT.) 
 
 LAW OF NATIONS. 
 
 1. The right of a nation to seize vessels at- 
 tempting an illicit trade is not confined to its 
 harbors or to the range of its batteries. Its 
 power to secure itself trova injury may be ex- 
 ercised beyond the limits of its territory, nor 
 is the right limited within any marked bound- 
 aries. Church e. Hvbbart, 3 Cranch, 165. 
 
 2. The jurisdiction of the French courts as 
 to seizures is not limited to those made with- 
 in two leagues of the coast ; a seizure made 
 beyond the limits of the territorial jurisdic- 
 tion for a breach of a municipal regulation is 
 authorized by the law of nations. Hudson 
 f). Guestier, 6 Cranch, 281. 
 
 3. The sovereign authority of any country 
 may arrest its own subjects or seize their prop- 
 erty upon the high seas. Frauds «. Ocean 
 Ins. Co., 6 Cow., 404. 
 
 LEVY OF EXECUTION. 
 
 1. Stipulated: "The policy shall cease at 
 and from the time the property shall be levied 
 on, or taken into possession or custody, under 
 any proceeding in law or equity." An execu- 
 tion was placed in the bands of the sheriff, 
 who went to the store where the goods were in 
 view, and made a memorandum of a levy and 
 gave notice thereof to the execution debtors, 
 but he did not take the goods into his custody 
 nor leave a watchman in charge of tltem, nor 
 was the actual possession of the insured dis- 
 turbed. Held, though that was a levy upon 
 the property, still it was not the levy contem- 
 
 plated by the parties, for the words, " taken 
 into possession or custody," define those 
 which precede, namely, "levied on." Com- 
 monwealth Ins. Co. V. Berger, 42 Penn. SL, 285. 
 
 2. Stipulated: "The policy shall cease, if 
 the property shall be levied on, or taken into 
 possession or custody, under an execution or 
 other proceeding at law or equity. Held, a 
 wrongful levy could not affect the rights of 
 the insured. Philadelphia Ins. Co. v. Mills, 44 
 Penn. St, 241. 
 
 3. Stipulated: "To be void if the prop- 
 erty shall be levied upon, or taken into custo- 
 dy by the law. Held, a wrongful levy was not 
 a violation of the condition. Mills «. Insur- 
 ance Co., 5 PhUa., 28. 
 
 LEX FORI. 
 
 1. If the contract alleged relates to general 
 commercial law, the federal courts, when their 
 power is judicially invoked, must determine 
 for themselves as to the power to make the 
 contract and its interpretation ; and, a decision 
 of the supreme court of the state, upim any 
 question involved in it, although entitled to 
 great respect and consideration, is not conclu- 
 sive upon the federal court (citing Butts v. 
 Muscatine, 8 Wall., 584; Bank «. Kelly, X 
 Black, 436; Gelpcke ». Dubuque, 1 Wall., 
 175; Lefengwell «. Warren, 2 Black, 599; 
 King o. Wilson, 1 Dil. Cir. C, 555). Hening 
 V. United States Ins. Co., 2 Dil. Cir. C, 26. 
 
 2. The corporation was created by the law 
 of Canada. Held, if the contract was made in 
 the state of New York, the law of that state 
 must govern the rights of the parties. But 
 upon demurrer to a replication filed in the 
 cause, the court held, whether a certain con- 
 dition in the contract contained was waived 
 or performed, was matter of proof which must 
 be controled by the law of the forum. Wag- 
 dell v. Provincial Ins. Co., 21 U. C. Q. B., 612. 
 
 LEX LOCI CONTRACTUS. 
 
 1. Coffee insured at 12 cents per pound, 
 from Jeremie to Baltimore or New York. 
 Held, the American and not the French stand- 
 ard of weight shall apply. Grade e. BiAone, 3 
 Caine?, 30. 
 
 877 
 
voo 
 
 iii!;^ ijlJUl UUlMItiiUlUD. 
 
 756 
 
 Miscellaneous. 
 
 2: The agent of an insurance company had 
 not authority to make contracts to insure, but 
 was authorized to receive applications for 
 insurance; and he received one and tlie pre- 
 mium note of the applicant from a person in 
 Ohio, and transmitted them to his principals 
 in New York, where they were received, ap- 
 proved and policy issued. Hdd, the contract 
 was made in New York, and not in Ohio; 
 and therefore not within the statute of Ohio 
 prohibiting such contracts; hence the pre- 
 mium note was valid. Hyde «. Ooodnow, 3 N. 
 Y., 206. 
 
 3. An application was made by residents in 
 Canada for insurance upon property there, 
 which was sent to the insurer in New York 
 for approval, and a policy issued upon it. 
 Hdd, it was a contract made in the state of 
 New York, to be performed there and gov- 
 erned by the laws of the state of New York. 
 Western v. Genesee Mut. Ins. Co., 12 N. Y., 258. 
 
 4. Policy made in another state, not to be 
 valid till countersigned by an agent named, in 
 the state of Massachusetts. Held, a contract 
 made in Massachusetts, and is governed by 
 the law of that state. Heebner n. Eagle Ins. 
 Co., 10 Gray, 131. 
 
 5. Insurer's agent issued and sent a policy, 
 dated at Portland, to insured upon property 
 in New Hampshire. Held, it was a contract 
 made in the state of Maine, and the law of 
 the state of Maine must govern the rights of 
 the parties. Bailey v. Hope Ins. Co., 56 Me., 474. 
 
 6. Stipulated: "This policy shall not be 
 binding till countersigned by T. L. Miller, at 
 Chicago." Miller countersigned it. It was 
 made in New York. Held, the contract was 
 executed in Illinois, and must be governed by 
 the laws of Illinois, and not by the laws of 
 New York. Pomeroy x. Manhattan Life Ins. 
 Co., 40 111., 398. 
 
 7. The defendant, who resided in Indiana, 
 had made application there to H., a resident 
 agent at the same place, for insurance on hay 
 from Aurora to New .Orleans, which was ac- 
 cepted, and policy -issued from the oflSce of 
 plaintiflf, in Cincinnati. The law of Indiana 
 provided that it should not be lawful for any 
 agent of any insurance company incorporated 
 by any other state, directly or indirectly, to 
 take risks or transact any business of insur- 
 ance in Indiana, without first procuring a cer- 
 tificate of authority from the auditor of the 
 Btate ; also, that foreign insurance companies 
 
 878 
 
 should not enforce any contract made by an 
 agent in Indiana, unless the agent had been 
 qualified by law to act as such agent. There 
 had been no compliance with the statute in 
 any respect. Held, the contract was made in 
 Ohio; that the statute of Indiana had no ap- 
 plication to the case (citing Mclntyre v. Parks, 
 3 Met., 207). Eureka Ins. Co. v. Parks, 1 Cin. 
 8. C, 574. 
 
 8. The contract was made between tlie 
 plaintiff and defendants in the state of Geor- 
 gia, but the policy, upon its face, appeared to 
 have been executed in the state of New Jersey. 
 Held, the lex fori governs as to the remedy, 
 but not as to its construction or the legal 
 rights flowing from it. These depend usually 
 upon the law of the place where the contract 
 is to be performed, although where there is 
 anything in the circumstances to show that 
 the parties had specially in view the law of 
 the place where the contract was made, the 
 latter will govern, although the performance 
 is to be elsewhere. Ruse v. Mutual Benefit Life 
 Ins. Co., 23 N. Y., 516; s. c, 26 Barb., 556; 24 
 N. Y., 653; see s. c, 8 Georgia, 534 
 
 9. The contract was to be performed in New 
 Jersey, where the statute of limitations created 
 a bar in six years from the time the action ac- 
 crued. The death occurred in September, 
 1863. The action was not brought until Feb- 
 ruary 17, 1873, and was barred by lapse of 
 time, by the statute of New Jersey. Held, the 
 bar was effectual in the courts of Kentucky. 
 Kentucky Ct. App. Spratley v. Mutual Benefit 
 Life Ins. Co., 7 Chi. Leg. News, 51. 
 
 10. Insurers, an English corporation, had 
 their principal place of business in London, 
 with an agent at Glasgow, authorized to make 
 insurance contracts for them and tn receive 
 the consideration. The agent accepted a risk 
 in general terms, on a ship, and delivered to 
 insured a memorandum, which stated the sum 
 insured and the property insured, and prom- 
 ised that a policy would be forthwith prepared 
 at the office in London, and would be delivered 
 to the insured or his order. Held, the con- 
 tract was made in Glasgow and not in London. 
 Pattison v. Mills, 3 Bli. (N. S.), 519; 1 Dow & 
 C, 343. 
 
 I'J. An Irish company established agencies 
 iJi Scotland, and set forth in their prospectus 
 that the contract commenced so soon as an 
 order should be accepted by their agents, and 
 that losses would be adjusted and promptly 
 
757 
 
 LICENSE — LIEN. 
 
 758 
 
 What divests — When there is none — When it exists. 
 
 paid by the agents in Scotland. Seld, the 
 law of Ireland was not to govern in respect to 
 the right of insui-ed to interest money. St. 
 Patrick Ina. Co. v. Srebener, 8 S. & D., 51. 
 
 12. The proposal was made in Edinburg 
 to the agents of an English company, on the 
 life of a Scotchman domiciled in Edinburg. 
 The policy was made in England and sent to 
 the agent, who delivered it in Edinburg. 
 Held, the Scotch court was the appropriate 
 forum to determine the rights of the parties. 
 Parken v. Royal Exchange Ass. Co., 8 C. C. S., 
 865; 18 Scot. Jur, 147. 
 
 13. The policy was executed in tlje United 
 States, and transmitted to the company's agent 
 at Montreal for delivery. Seld, the contract 
 was made in Canada, and the rights of the 
 parties must be governed by the law of Can- 
 ada. Meagher v. JEtna Ins. Co., 20 TJ. 0. Q. B., 
 607. 
 
 LICENSE. 
 
 (See Illicit Tkasb.) 
 
 LIBEKTY TO TOUCH AND STAY. 
 
 (See Illicit Tbase; Licesus; Tovch ash Stat.) 
 
 LIEN. 
 
 (See Bbokes.) 
 
 I. What DIVESTS. 
 II. When there is none. 
 III. IT exists. 
 
 I. What divests. 
 
 1. The charter of the company created a 
 lien against the property of insured. Held, the 
 lien expired with the death of insured, and 
 could not be enforced against his heirs unless 
 they ratified or confirmed the policy. Indiana 
 Mutual Fire Ins. Co. v. Chamberlain, 8 Blackf., 
 150. 
 
 2. The policy gave a lien to insurer upon 
 the premises insured, during the continuance 
 
 of the risk. The premises were sold and con- 
 veyed. Held, the sale destroyed the lien, if the 
 purchaser had no notice of it. Kentucky 
 Farmers Mut. Ins. Co. ■». Matliers, 7 Bush, 23. 
 
 II. When theee is none. 
 
 1. Where the expense of repairing sea dam- 
 age was defrayed by a sale of part of the cargo, 
 and the residue charged upon the remainder 
 of the cargo by a respondentia bond, it was 
 held, that no lien was thereby created on the 
 ship, and that it could not be considered as 
 conferring any right upon the ship owner to 
 abandon. Dickey v. New York Ins. Co., 4 Cow., 
 222. 
 
 2. The first insurer procured reinsurance. 
 Held, the owner of the property insured ac- 
 quired no lien against the money due from the 
 reiusur ers. Hackenrath «. American Mut. Ins. 
 Co., 3 Baib. Ch., 63. 
 
 3. A., as agent of the owner, effected insur- 
 ance " for account of whom it might concern ; 
 loss, if any, payable to A." Held, A. had no 
 lien against the insurance money for a general 
 balance due him by the owner, if the owner 
 assigned his interest in the property to a buna 
 fide purchaser or mortgagee before a loss 
 occurred. Rogers «. Traders Ins. Co., 6 Paige 
 Ch., 583. 
 
 4. B. & Co., were debtors to A. & Co., for 
 a general balance. The former directed the 
 latter to procure insurance upon a certain 
 ship and remitted money to pay the premium. 
 Held, A. & C. were not entitled to a lien upon 
 the policies for the general balance. Dixon 
 v.Stansfeld, 10 C. B., 398. 
 
 5. The policy, by its terms, made the stock 
 and funds of the company liable to pay the 
 sum insured ; and stipulated, that " the stock 
 and funds shall be alone liable, and no mem- 
 ber shall be individually liable beyond his 
 share in the capital stock." Held, the policies 
 did not create a charge on the funds of the 
 company, which would entitle the insured to 
 priority over general creditors. In re State 
 Fire Ins Co., 1 De G. J. & S, 634 ; 33 L. J. Ch., 
 123; In re International Life Ass. Soe., ex 
 parte Mclver, 5 L. R Ch., 424. 
 
 III. When it exists. 
 
 1. An insurance company, having paid their 
 quota for the salvage service and having 
 
 379 
 
759 
 
 LIGHTNING — LIMITATION OF ACTIONS. 
 
 760 
 
 Failure to sue must be pleaded — Insufficient plea of. 
 
 made advances for the necessary repairs of the 
 boat after she was raised, the owners, having 
 no means or credit, have a maritime lien to the 
 extent of the repairs at least. Collins v. Steam- 
 boat Fart Wayne, 1 Bond, 476. 
 
 2. B. indorsed a note and took a mortgage 
 to secure its payment. When it became due, 
 to save the credit of the maimers, he gave his 
 check for the money instead of allowing it to 
 be protested. Held, the debt for which the 
 mortgage was given remained a valid lien 
 upon the property mortgaged. Bogers o. Tra- 
 ders Ins. Co., 6 Paige Ch. 583. 
 
 3. F. was indebted to A. and A. became 
 surety for F. upon a respondentia bond, for 
 $10,000. F. insured his commissions on the 
 goods and deposited the policy with A. as 
 security for the sum due, as well as for any 
 loss that A. might sustain upon the bond. 
 ndd, A. had a lien, at law, upon the policy, 
 and that he had tlie right to retain the moneys 
 received upon it to satisfy his lien. Wells ®. 
 Arcker, 10 S. & R., 412. 
 
 4. The policy prohibited any assignment 
 of it. Insured deposited it with a creditor to 
 secure a debt, of which notice was given to 
 insurer. Held, the creditor had a lien upon 
 the' proceeds of the policy, binding upon in- 
 surer and insured. Ellis v. Kreutzinger, 27 
 Mo., 311. 
 
 5. The consignor directed his correspond- 
 ent to insure, and the bill of lading was as- 
 signed to a third party, who became the 
 assignee of the policy. Held, the assignee 
 took it subject to the lien of the correspond- 
 ent, for his general balance. Manv.SMffner, 
 2 East, 523. 
 
 6. The assignees of the bankrupt brought 
 trover for a policy of insurance made upon 
 the life of the bankrupt, who, before his bank- 
 ruptcy, deposited it with the defendants for a 
 balance due and money lent. Notice of tlie 
 deposit or transfer was not given to the insu- 
 rance company, nor was any assignment of it 
 executed. Held, the assignees were bound to 
 make the point clear, whether the deposit was 
 intended as a lien or as an assignment of the 
 claim which the bankrupt had on the policy; 
 not having done so, the court was at liberty 
 to conclude the parties intended by the de- 
 posit to give nothing more than a mere lien, 
 not an equitable right to the holder to receive 
 the money ; therefore the assignee could not 
 maintain trover for it, and the lien was un- 
 
 380 
 
 affected by the bankruptcy. Gibson «. Over- 
 bury, 10 L. J. Ex., 219. 
 
 7. A feme covert paid, out of her separate 
 income, premiums on certain policies of in- 
 surance which were assigned as collateral 
 security for a provision settled upon her, 
 under an instrument made by her husband. 
 Held, when the moneys secured by the policies 
 became payable, she was entitled to a lien on 
 them for the amount of premiums paid out of 
 her separate estate. Burridge «. Row, 1 You. 
 & Coll. C. C, 183; 11 L. J. Ch., 369; affirmed, 
 13 L. J. Ch., 173. 
 
 LIGHTNING. 
 
 (See Accident; Cosskbuciioh.) 
 
 LIMITATION OF ACTIONS. 
 
 I. The PArLCEE to sue must be pleased. 
 
 II. iNStTFFICIENT PLEA OP. 
 
 III. When the action is timelt. 
 
 IV. limitation is xnopeeatttb 
 
 V WAITED. 
 
 V-'' VOID. 
 
 VIL FArLUKE TO SUE IS A BAB. 
 
 VIII. Op statutobt provisions. 
 
 I. Failtjee to sue mttst be pleaded. 
 
 Action upon a policy. Conditioned: "No 
 suit shall be maintained unless brought with- 
 in twelve months after the action accrued." 
 Held, a condition subsequent the subject of 
 a plea. KetcUum v. Protection Ins. Co., 1 Allen, 
 (N. B.), 136. 
 
 II. Insufficient plea of. 
 
 1. Stipulated: " No suit shall be maintained 
 upon this policy, unless commenced within 
 twelve months next after the cause of action 
 shall accrue." Plea : the fire which caused the 
 loss complained of, occurred more than twelvfe 
 months before this suit was commenced. Held, 
 a bad plea. Lampkin v. Western Ass. Co., 13 
 TJ. C. Q. B., 361. 
 
 2. Plea: That no action should be sustained 
 
761 
 
 LIMITATION OF ACTIONS. 
 
 762 
 
 When the action ia timely. 
 
 unless brought within s'.x months flrom the 
 date of the loss; that this action wfis not 
 brought within this time. Replication: that 
 when the loss occurred, defendants had not 
 issued the policy ; that they refused to issue 
 it, and did not issue it until after six montlis 
 had elapsed ttovx the date of the loss. Held, 
 the replication was bad on the ground of de- 
 parture fh>m the cause of action set up in the 
 declaration, for tlie plaintiff was in effect at 
 tempting to proceed on an equitable cause of 
 action. SicJcey v. Aiichar Ins. Go., 18 U. C. Q. 
 B.,433. 
 
 III. "When the action is riiiELY. 
 
 1. Stipulated: "No recovery shall be had 
 in any court unless suit shall be commenced 
 within twelve months next after the loss or 
 damage, and in case any such suit shall be 
 commenced after that time, the lapse of time 
 shall be considered conclusive evidence of 
 the invalidity of the claim." Insured was a resi- 
 dent of state of Mississippi, and insurer a citizen 
 of the state of Connecticut, during the twelve 
 months next succeeding tlie loss, and all that 
 time there was state of war between the 
 northern and southern states. Held, the con- 
 dition referred to the twelve months next suc- 
 ceeding the loss. If tlie plaintiff could show 
 any reason in law that rebutted the presump- 
 tion raised by the failure to sue in that time, 
 the condition was gone ; for once rebutted, it 
 could not be again revived. The state of war 
 e.tcused the failure to bring suit within twelve 
 months after the loss (reversing s. c, 36 Conn., 
 543). Stmmea v. Iniwranee Co., 18 Wall., 158. 
 2. Stipulated: "The action shall not be 
 maintained, unless brought within six months 
 next after the loss shall occur. Loss payable 
 in ninety days after due proof." The fire oc- 
 curred July 5th. The proofs were delivered 
 tlie 14th. About eighty-flve days thereafter, 
 or within five days when the loss would be 
 payable, insurers suggested, that the proofs 
 were incomplete, and required an amendment 
 which was transmitted about a week later, 
 October 14th. January 3d, insurers were asked 
 when they would pay the claim. To which 
 the secretary replied, "When it is due, Jan- 
 nary 14th." This action was not brought tmtil 
 after the six months had elapsed. Held, the 
 condition was waived. Ameg «. JVisie York 
 Union Ins. Co., 14 N. T., 253. 
 
 3. Stipulated: "No action shall be sus- 
 tained upon this policy unless commenced 
 witliin six months after any loss or damage 
 shall accrue. Payment of losses shall be 
 made in sixty days from the date of the adjust- 
 ment of the preliminary proofs of loss." Fire 
 occurred October 5, 1858. Action commenced 
 April 16, 1859. Seld, in time ; for the words 
 "loss or damage shall accrue," mean action 
 shall accrue; that no action accrued until 
 sixty days after the parties adjusted the claim; 
 that insurer's demand for additional proofs, 
 made February 13, 1859, prevented the accru- 
 ing of an action till April 13, 1859. Mayor of 
 New York v. Hamilton Ins Co., 39 N. T., 45; 
 s. c, 10 Bos., 537. 
 
 4. Stipulated: "The directors shall pro- 
 ceed to determine whether any loss has oc- 
 curred for which the company is liable, and 
 ascertain the amount; and if the insured do 
 not acquiesce, and both parties do not agree to 
 refer it, the insured may, within four months 
 after such determination, but not after, bring 
 an action at law, which action shall be brought 
 at a proper court, in the county of Essex." 
 Held, the failure to bring the action in the 
 county of Essex was no defense, for the right 
 to bring it in the county of Suffolk was fixed 
 by general law, and the parties would not be 
 allowed to change it by agreement. Ifute v. 
 Hamilton Mwt. I»». Co., 6 Gray, 174. 
 
 5. Stipulated: "No suit shall be main- 
 tained upon the policy unless commenced 
 within six mouths aft^r loss." An action at 
 law was commenced within tlial time, but no 
 recovery could be had on it because the prop- 
 erty was misdescribed, and this bill was 
 brought after six months had elapsed tu re- 
 form the writing. Held, if the bill were for 
 relief only, the limitation of time would be a 
 bar; but it was a proceeding in aid of the 
 action at law to correct a mistake in the 
 policy, and, therefore, the limitation of time 
 was not applicable to it Woodbury Savings 
 Bank v. Cliarter Oak Ins. Co., 31 Conn., 517. 
 
 6. The claim was attached by a creditor of 
 insured within twelve months after the loss, 
 and the creditor brought scire facias against 
 the company after the expiration of twelve 
 months. Held, the limitation named in the 
 policy was satisfied by the attachment, and 
 the writ of scire facias could be maintained. 
 Harris e. Phanix Ins. Co., 35 Conn., 310. 
 
 7. Stipulated : " All claims under this pol. 
 
 881 
 
763 
 
 LIMITATION OF ACTIONS. 
 
 764 
 
 When the action is timely. 
 
 icy are barred unless prosecuted within one 
 year from the date of the loss." Reld, the 
 commencement within the year of a suit 
 which was dismissed and not carried to final 
 judgment, was a compliance with the condi- 
 tion. Madisnn Ins. Go. «. FelUnnes, 1 Dis., 217 ; 
 affirmed, 2 id., 128. 
 
 8. Stipulated: "No suit or action for the 
 recovery of any claim under this policy shall 
 be maintained unless such suit or action shall 
 be commenced within the term of twelve 
 months next after any loss or damage shall 
 occur." The fire occured March 31, 1860. A 
 summons was issued March 18, 1861, return- 
 able April 2, 1861, which was returned " Not 
 found," April 3, 1861. The next day another 
 summons was issued which was served upon 
 defendant. The word aliat was written by 
 the clerk upon the face of the seal, but be- 
 yond this there was nothing to indicate that it 
 was a continuation of the first process. Held, 
 insured had the whole of the twelve months 
 within which to bring the suit; that commenc- 
 ing the action within twelve months was sufll- 
 cient to defeat the limitation, or to extend it 
 till service was made under the second writ. 
 Peoria Fire <md Marine Ins. Co. v. Sail, 13 
 Mich., 202. 
 
 9. The action was not brought within a 
 year after the loss occurred; but before the 
 year expired, the company was dissolved, and 
 its assets placed in the hands of a receiver. 
 The company's agents had led insured to be- 
 lieve that it was wholly bankrupt, and that it 
 would be useless for him to make any formal 
 proof of loss. Seld, the fund was for the use 
 of all the creditors, and insured was practi- 
 cally a party to the suit, though not specifi- 
 cally named; therefore, the condition in this 
 respect had no application. 111. S. C; Pennell 
 V. Chandler, 7 Chi. Leg. News, 227. 
 
 10. Stipulated: " No action shall be main- 
 tained unless brought within one year after 
 the loss. This suit was commenced September 
 30, 1868. The loss occurred June 2, 1867. 
 September 24, 1867, insurer's general agent 
 wrote that the proofs were quite defective, but 
 stated no particulars. He further stated, that 
 he would call upon insured in the October 
 following. Not having called, insured again 
 wrote to him, and in a letter dated March 1, 
 1868, they were then for the first time in- 
 formed that insurers would insist upon a strict 
 compliance with the condition requiring pre- 
 
 882 
 
 liminary proofs. Thereupon, insured made 
 and delivered new proofs of loss, July 13, 
 1868. Seld, the evidence was sufficient to 
 warrant tlie jury in finding that the acts and 
 omissions of the defendant delayed the plaint- 
 iffs in making their preliminary proofs for 
 five months, which time must be excluded in 
 computing the time within which insured was 
 limited to bring the action, fillips v. Putnam 
 Fire Ins. Co., 28 Wis., 47. 
 
 11. Stipulated: "No suit shall be sustain- 
 able upon this policy unless commenced with- 
 in twelve months of the loss"which occurred 
 October 17, 1869. It was adjusted November 
 6, 1869, at $450, and insurers agreed to pay it 
 February 6, 1870, unless notice should be 
 given prior to that time of an intention to 
 contest iu The action was commenced No- 
 vember 7, 1870. Held, the time between No- 
 vember 6, 1869, and February 6, 1870, the date 
 company agreed to pay the claim, must be ex- 
 cluded in computing the year (citing Killips 
 B. Putnam Fire Ins. Co., 28 Wis., 472). Black 
 B. Winneshiek Ins. Co., 31 Wis., 472. 
 
 1 2. Stipulated : " No suit or action shall 
 be sustained unless commenced within the 
 term of twelve months after the happening of 
 the loss or damage." The vessel left Quebec 
 November 20, 1867. She passed Les Elxiule- 
 ments two days after, and nothing was heard 
 of her until the middle of May, following, 
 when she was found ashore at the island of 
 Anticosti. None of the crew were ever after- 
 wards heard of. A hole had been cut in the 
 vessel, through which some of the insured 
 flour had been taken ; the balance was found 
 on board, and insurer's agent sold 547 barrels 
 at Graspe for $1,796. After paying salvage, 
 charges and other expenses, it netted $538. 
 The schooner was subsequently repaired. 
 This action was commenced March 3, 1869. 
 Seld, insured was not bound to treat it as a 
 loss as soon as the damage occurred ; that the 
 property saved existed in specie in May, 1868, 
 hence the loss was not, in its inception, total, 
 and only became so when, by the course of 
 events consequent upon the peril encountered, 
 it was found impossible to carry the flour to 
 its destination, and necessary to sell it ; that 
 the right of the insured to claim for indemni- 
 ty did not mature until May, 1868; hence the 
 action was within the time limited by the con- 
 tract (citing Roux v. Salvador, 3 Bing., (N. C), 
 266; Farnesworth v. Hyde, 18 C. B. (N. S-), 
 
765 
 
 LIMITATION OF ACTIONS. 
 
 76ff 
 
 When the hmitation is inopeiatiTe. 
 
 835; 8 L. R C. P., 204; Stringer «. English 
 and Scottish Marine Ins. Co., 5 L. R. Q. B., 
 599). Browning «. Provincial In». Co. of Can- 
 ada, 5 L. II. F. C, 863; 28 L. T. (N. S.), 853; 
 21 W. R., 587. 
 
 rV. When the limitation is inopee- 
 
 ATIVE. 
 
 1. Stipulated: "In case of a disputed 
 daim, no suit or action shall be sustained, un- 
 less instituted within twelve months after the 
 alleged cause of such claim." Proofs of loss 
 were made and forwarded to the insurere, who 
 stated several formal objections to their sufEl- 
 ciency, and asked for further proofs, which 
 were made and sent, but no objection was ever 
 made to the payment of the loss. This action 
 was brought more than twelve months after it 
 occurred. Held, in the absence of all proof 
 showing that the insurers intended to inter- 
 pose anything but mere formal objections to 
 the claim, the court would hold that it was not 
 a disputed claim, and therefore not within the 
 provision. People v. Liverpool, London and 
 Globe Ins. Co., 3 N. Y. S. C, 268. 
 
 2. The defendants pleaded in abatement to 
 the jurisdiction, and relied mainly upon the 
 act of incorporation, which provided that if a 
 loss is not settled by tlie directors by adjust- 
 ment or reference, the party suffering may 
 bring his action in the first court held in Mid- 
 dlesex. Seld, bringing the action in Middle- 
 sex was limited to cases where an adjustment 
 was made, and the party was not satisfied ; 
 that it did not apply to cases where the direc- 
 tors have neglected or refused to adjust 
 Boynton e. Middlesex Mutual Fire Ins. Co., 4 
 Met, 212. 
 
 3. The policy made the by-laws part of the 
 contract They provided that upon notice of 
 loss the directors shall proceed to determine 
 and pay the amount thereof; but if insured 
 shall not acquiesce in their determination any 
 action for the loss claimed must be brought 
 within four months after such determination. 
 The directors voted to pay $1,667.42, October 
 6, 1851. This action was not commenced un- 
 til after four months. Held, the action could 
 not be maintained for the amount claimed, but 
 it could be maintained for the amount admit- 
 ted to be due. Ametburyv. Bowditch Fire Ins. 
 Co., 6 Gray, 596. 
 
 4. By charter granted in the state of New 
 
 Hampshire, it was provided that the directors, 
 as they might deem proper, should ascertain 
 and determine the amount of any loss or dam- 
 age; and if the insured should not acquiesce, 
 his claim might be submitted to referees mu- 
 tually chosen, or he might within ninety days 
 after notice of said determination, and not af- 
 terwards, bring an action for the loss before 
 any court in the county of Merrimac proper to 
 try the same. Meld, if insurers neglected to 
 ascertain the plaintiff's loss and perform the 
 duties enjoined upon them, insured was not 
 obliged to pursue the special remedy. Wil- 
 Uams V. New England Fire Ins. Co., 29 Me., 
 465. 
 
 5. The contract provided : " Upon notice of 
 the loss the directors shall proceed as soon 
 as may be to ascertain and determine the 
 amount thereof, and shall settle and pay the 
 same within three months after such notice; 
 but if the insured shall not acquiesce, his 
 claim may be submitted to referees, or he may, 
 within three months after such determination, 
 but not after that time, bring an action at law 
 against said company for such loss, wliich 
 action shall be brought at a proper court in 
 tlie county of Merrimack." Held, if the di- 
 rectors neglected or refused to settle and fix 
 the amount of the claim, the stipulation was 
 not binding, for it contemplated a case where 
 a loss is admitted and the amount fixed by 
 the directors; and therefore the insured was 
 not bound to bring his suit in the county of 
 Merrimack (citing Nute v. Hamilton Mut. 
 Ins. Co., 6 Gray, 174; Hall t. Mechanics Mu- 
 tual Fire Ins. Co., id., 169 ; Amesbury v. Bow- 
 ditch Mut. Ins. Co., id., 596; Nevins ». Rock- 
 ingham County Mut. Ins. Co., 25 N. H., 22). 
 Bartlett v. Union Mattial Fire Ins. Co., 46 Me., 
 500. 
 
 6. Tlie act of incorporation provided that 
 the directors are to ascertain and determine 
 the amount of loss, and settle and pay it with- 
 in three months after notice; and if the party 
 suffering is not satisfied with their determin- 
 ation, the question may be submitted to ref- 
 erees, or the assured may bring his action at 
 the next court to be holden in and for the 
 county of Rockingham, and not afterwards. 
 Held, the insurer is bound to decide within 
 three months after notice: and that those pro- 
 visions contemplate a case where the Iors has 
 been admitted, and tlie only question between 
 the parties was whether the insured was enti- 
 
 S83 
 
767 
 
 LIMITATION OP ACTIONS. 
 
 768 
 
 When the limitation is wajved. 
 
 tied to recover more ; that the special remedy 
 ■was intended only for a special case, where 
 there had been a reasonable determination on 
 the question of loss and the insured was dis- 
 satisfied with that determination. Nemn» v. 
 Bockingham Mutual Fire Ins. Co., 25 N. H., 32. 
 
 7. Act of incorporation provided that com- 
 pany's directors, " Upon being notified of the 
 loss shall, on view, or in such other way as 
 they may deem proper, ascertain and deter- 
 mine the amount; and if the party suffering 
 is not satisfied by the determination of the 
 directors, the question may be submitted to a 
 referee, or he may bring an action for the loss 
 at the next court to be holden for Marion 
 county, and not afterwards." Held, if the di- 
 rectors failed to ascertain and determine the 
 loss, tlie remedy of the insured was governed 
 by the general law, and the stipulation limit- 
 ing the action was of no effect. Indiana Mu- 
 tual Fire Ins. Co. v. Routledge, 7 Ind., 25. 
 
 8. Not satisfied with adjustment, insured 
 must bring suit within a certain time to a 
 certain court. Hdd, not binding unless in- 
 surer adjusted the loss. Landis v. Home Mu- 
 tual Fire and Marine Ins. Co., 56 Mo., 591. 
 
 9. Stipulated: "No action shall be main- 
 tained unless commenced within one year after 
 the loss." The interest insured was a mechan- 
 ic's lien. Insured commenced proceedings to 
 establish his lien, but it was not established 
 until after the expiration of the year. Held, 
 the insured having pursued his remedy to 
 obtain a judgment for the lien with diligence, 
 the condition requiring suit to be brought 
 within one year, became inoperative, and did 
 not bar his right to recover, though his action 
 was commenced after the year had elapsed. 
 Sunt ■o. City Fire Ins. Co., 13 Iowa, 371. 
 
 10. Stipulated : " No action shall be main- 
 tained if not brought within twelve months 
 after the loss." The subject insured was a 
 mechanic's lien. Held, if the insured pro- 
 ceeded to establish his interest with reasona- 
 ble diligence, and it could not be legally as- 
 certained in time to bring an action on the 
 policy within the year, then it follows (unless 
 a dishonest purpose is imputed to the com- 
 pany), that in granting such policy, insurer 
 intended to waive the condition which limits 
 the right of action on the policy to twelve 
 months. Longhurst v. Star Ins. Co., 19 Iowa, 
 864 
 
 11. Stipulated: " The directors may, within 
 ' 384 
 
 thirty days after notice of a loss, allow the 
 whole or a jjart, or reject the whole, and if the 
 insured is not satisfied, the matter may be re- 
 ferred to three referees, if the parties agree, 
 and in case no agreement shall be made, the 
 insured may bring an action in the circuit 
 court in the county of Milwaukee," etc. Held, 
 unless the directors rejected the claim within 
 thirty days after the loss, the insured was not 
 limited to the circuit court of Milwaukee. 
 Amet v. Mechanics Mut. Ins. Co., 23 Wis., 516. 
 12. The insurer's agent gave a receipt for 
 the premium, and agreed that a policy should 
 be delivered within twenty-one days, or the 
 money refunded. Thirty-three days after pay- 
 ment of the premium, the premises were 
 burned, but no policy had been issued at that 
 time, and the company refused to make one, 
 on the ground that the application had been 
 rejected. All policies of this company pro- 
 vided that no action should be maintained, 
 unless commenced within six months after 
 loss should occur. This suit was not brought 
 until after tliat time had passed. Held, the 
 condition did not apply, for the action was 
 not founded upon a policy. PeiUy e. Beacon 
 Ins. Co., 7 Grant's Ch., 130. 
 
 V. "When the limitation is waived. 
 
 1. The policy provided that suit shall be 
 brought upon it within one year after the loss, 
 and that the loss shall be paid within sixty 
 days after it shall have been ascertained aud 
 proved. Held, if a claim was made for indem- 
 nity within a reasonable time, and negotiations 
 took place between tlie parties, by which fur- 
 ther proofs were required, and these wera 
 given within a reasonable time, and promises 
 or intimations were held out that the loss 
 would be paid, and in consequence of these, 
 insured delayed bringing the suit within the 
 year, then the company could not be permitted 
 to avail itself of a failure to bring the suit 
 within the time mentioned ; but the insured 
 must show that by the action of the company, 
 he had been prevented from bringing the suit 
 within the time prescribed ; and to do so, it 
 must appear the insured was convinced that 
 the company was acting as if it would pay the 
 loss, and from Uie acts of the company he was 
 convinced that it was unnecessary to bring 
 the suit; if the conduct of the company and 
 the negotiations between the parties were of 
 
r69 
 
 LmiTATIOJJ OP ACTIONS. 
 
 770 
 
 When the limitatioii is void — When the failuie to sue is a bar. 
 
 snch a character as to conTince a reasonable 
 person that the company would not pay the 
 loss, then it was the daty of the insured to 
 bring the action -within the time limited. 
 Cwrtit e. Sotne Im. Co„ 1 Biss., 485. And it 
 the company required farther proofs of the 
 loss, and these were being furnished with due 
 diligence, that was evidence from which the 
 insured would have the right to believe the 
 loss would be paid without litigation; but 
 whenever the insured made up his mind that 
 he would not furnish any more proof, there 
 was an end of negotiation. Ibid. 
 
 8. Stipulated: "No action shall be sus- 
 tained unless brought within twelve months 
 after the loss. Hdd, slightevidence of waiver 
 would be sufficient to defeat the condition ; 
 that silence on the subject in the midst of ne- 
 gotiations for settlement daring the year 
 would be sufficient to submit the question of 
 waiver to the jury; Uiat it was not necessary 
 to prove a positive act of the defendants, in- 
 tended to induce postponement of the action. 
 Ajplgr o. -Astor In*. Co., 17 How. Pr., 444 
 
 3. Stipulated: "No suit or action of any 
 kind against this company for the recovery of 
 any claim under this policy shall be sustain- 
 able in law or equity, unless commenced within 
 six months after the cause of action shall have 
 accrued." Hdd, if after the action was legally 
 baired, the company acted and promised as if 
 it did not intend to insist upon the limitation, 
 the jury could infer a waiver of the condition. 
 Coaninv. Pauuglwaua In*. Co., 46 V&an. St., 
 333. 
 
 4. Stipulated: "No action shall be sus- 
 tained unless brought within six months after 
 the loss." ffdd, representations made by the 
 company's agents, which gave insured reason- 
 able groimd to believe, and from which he did 
 in fact believe, that his claim would be set- 
 tled without suit, would relieve insured from 
 the conditinn (citing Grant «. Lexington Fire 
 and Marine Ins. Co., 5 Ind., 22). Mieieg e. 
 
 \BurUngton In*. Co., 33 Iowa, 174. 
 
 5. Stipulated : " No action shall be main- 
 lined upon this policy, unless commeni^ed 
 within six months after Uie loss shall occar." 
 
 jD. was insurer's agent, and the policy was 
 effected through him. He and S. were asso- 
 ciated in business as insurance agents, and 
 when the claim matured S. was absent from 
 the Province. D. agreed with insured, that if 
 he would defer prosecuting the claim until the 
 23 
 
 return of S., it should be paid. After the re- 
 turn of S. the claim was not paid. This suit 
 was commenced more than six montlis after 
 the loss. HM, D. had authority to make the 
 agreement, and tlie condition to prosecute 
 within six months was therefore waived. 
 Bradjt e. Western As*. Co., 17 U. C. C. P., 597. 
 
 VL When the likitation is void. 
 
 I. Stipulated: "That any action upon the 
 policy should be brought in six months after 
 the loss." Seld, the stipulation was void (ci- 
 ting Develin v. Wood, 3 Ind., 103; HcLane e. 
 Elmer, 4 id., 289; Grant e. The Lexington, 
 etc, 5 id., 33). Eagle Im. Co. c. La Fayette 
 la*. Co., 9 Ind., 443. 
 
 8. Stipulated : " The insured waives all 
 right to bring an action under said policy, ex- 
 cept in the courts of Uie state of New York." 
 Beld, void as against public policy, and in di> 
 rect opposition to the state statute governing 
 the regulation of agenda of foreign iosuraace 
 companies. BeicAard v. Manhattan Life Ins. 
 Co., 31 Mo., 518. 
 
 Vll. When the failure to sue is a 
 
 BAR. 
 
 1. Stipulated: "No suit or action of any 
 kind against the company for the recovery of 
 any claim upon this policy shall be sustaina- 
 ble in any court of law or chancery, unless 
 such shall be commenced within twelve 
 months after snch lo^ or damage shall occur." 
 An action commenced within the year was 
 dismissed. The statute of limitations in Mis- 
 souri, where this action was brought, provided 
 that if in any action commenced within the 
 the period mentioned, the plaintiff shall suffer 
 a nonsuit, he may commence a new action 
 within one year afterwards. Seld, the Mis- 
 souri statute did not affect the rights of the 
 partly their rights flowed from the contract, 
 which relieved them from the general limita. 
 tioBS of the statute, and, as a consequence, from 
 its exceptions also; and the commencement 
 of this action within a year after the loss was 
 a condition precedent to the plaintiff's right 
 of recovery. BiddUibarger ». Hartford In*. 
 Co., 7 Wall., 386. 
 
 2. Stipulated: "No action at law or in 
 equity shall be maintained, unless commenced 
 irithin one year from the happening of the 
 
 383 
 
771 
 
 LIMITATION OF ACTIONS. 
 
 When the failure to sue is a bar. 
 
 772 
 
 loss." Beld, refusing to pay the claim on the 
 ground that other actions had been com- 
 menced in the same policy by other parties, 
 and that defendant would not do anything in 
 respect to the loss while they were defending, 
 was not evidence sufficient to estop insurers 
 from insisting upon the condition. Ripley n. 
 ^tna Int. Co., 30 N. Y., 136; s. c, 29 Barb., 
 552 ; Roach «. New York and Erie In*. Co., 30 
 N. T., 540. 
 
 3. Stipulated : " No action shall be sus- 
 tained against this company unless brought 
 within twelve months after the cause of action 
 shall have accrued." Held, a plea setting up 
 the failure to bring the action within the time 
 named was a bar. Cray v. Hartford Fire Ins. 
 Co., 1 Blatch., 280. 
 
 4. Stipulated : " Insured shall forthwith 
 give notice of the loss to the company, and 
 within thirty days thereafter deliver a particu- 
 lar statement thereof. Losses shall be paya- 
 ble ninety days after compliance with the con- 
 ditions. No suit or action of any kind against 
 said company for the recovery of any claim 
 under this policy shall be sustainable in any 
 court of law or chancery, unless such suit or 
 action shall be commenced within the term of 
 six months after the loss or damage shall have 
 occurred." Loss July 21, 1858; notice and 
 particular account August 17, 1853 ; suit Au- 
 gust 10, 1854. Seld, insurers were discharged. 
 Fullam V. New York Union Ins. Co., 7 Gray, 61. 
 
 5. Stipulated: "The directors shall ascer- 
 tain and determine said loss or damage, and 
 if the party suffering shall not be satisfied with 
 their determination, the amount may be sub- 
 mitted to referees, or he may bring an action 
 for the loss or damage at the next court, to be 
 holden in and for the county of Portage, un- 
 less said court shall be holden within sixty 
 days after said determination, and if holden 
 within that time, then at the next court holden 
 thereafter in said county." The claim was re- 
 jected October 5, 1852. The first term of court 
 was held October 12, 1852, and the next Feb- 
 ruary 24, 1853. This suit was not commenced 
 until August 12, 1853. Seld, the limitation 
 was a valid bar to this suit. Portage County 
 Mut. Ins. Co. V. West, 6 Ohio St., 599. 
 
 6. A statute (the act of incorporation) pro- 
 vided that the action upon the policy should 
 be brought within a time limited. Held, ne- 
 gotiations between the parties, with a view to 
 referring to arbitrators the matters in dispute, 
 
 is not an excuse for failing to bring the action 
 within the time. Gfoodenv.Amoskeag Fire Ins 
 Co., 20 N. fl., 73. 
 
 7. Stipulated: "The directors shall ascer- 
 tain and determine the amount of loss or dam- 
 age, and if the insured shall not be satisfied 
 with their determination, the question shall 
 be submitted lo referees, or the insured may 
 bring an action at the next court to be lield in 
 and for the county of Stratford," etc. The loss 
 occurred December 19, 1855. The directors 
 had no notice of it until August 21, 1856, and 
 then they voted to postpone the subject. This 
 action was not brought until April 6, 1859. 
 Held, it could not be maintained. Patritk v. 
 Farmers Ins. Co., 43 N. H., 621. 
 
 8. The seventh section of the act incorpo- 
 rating the company, limited the time for com- 
 mencing actions within a given period after 
 the directors had ascertained and determined 
 the amount of damage and made their deter- 
 mination. Held, insured must bring his ac- 
 tion within the time limited, although the di- 
 rectors refused and neglected to ascertain the 
 amount of damage. Dutton v. Vermont Mut- 
 ual Fire Ins. Co., 17 Vt., 369. 
 
 9. Conditioned: "The action shall be 
 brought in the county of Washington, or in 
 that in which insurers reside, or in that in 
 which the property insured is situated, at the 
 term of the court next after the directors shall 
 have disallowed the claim in whole or in part. 
 Hdd, the action not being brought within the 
 time named, it was barred, and the fact that 
 the directors voted to pay one of the claimants 
 half of the claim did not remove the bar, 
 though the vote was given after the limitation 
 had expired. If the prescribed term be suf. 
 fered to elapse, without suit, there remains no 
 legal liability in any form, and there is noth- 
 ing for an acknowledgment or new promise 
 to rest upon. William» v. Vermont Mut. Ins. 
 Co., 20 Vt., 222. 
 
 10. Stipulated: "No suit or action shall 
 be sustained at law or In chancery, for any 
 claim under this policy, unless commenced 
 within twelve months next after any loss or 
 damage shall occur." PlaintiflT commenced 
 an action within the year, but was compelled 
 to take a nonsuit. This action was com- 
 menced after the year. Held, the lapse of 
 time was, by agreement of the parties, a bar to 
 this suit. Wilson v. .Mtna Int. Co., 27 Vt., 99. 
 
 11. Stipulated: "No suit shall be main- 
 
773 
 
 LIMITATION OF ACTIONS. 
 
 774 
 
 When the failure to sue is a bar. 
 
 tained unless brought witlijn six months after 
 loss." There was an attachment esecution 
 served on the company before the expiration 
 of the six months. Held, insurers were re- 
 leased. Schroeder ». Keystone Ins. Co., 2 Phila., 
 286. 
 
 12. The record averred: "It was express- 
 ly provided th.it no suit or action of any kind, 
 against the defendants, for the recovery of any 
 claim under said policy shall be sustainable 
 unless commenced within twelve months af- 
 ter the cause of action shall accure; that the 
 plaintiff did not commence his aforesaid 
 action within the said period of time." Seld, a 
 good bar. Sroion v. Roger Wiliiams Ins. 
 Co., 5 R. I., 394. To a similar plea the plaint- 
 tifT replied that within twelve months after the 
 cause of accrued, a suit was commenced which 
 proceeded to verdict, and judgment was ar- 
 rested upon insurer's motion, and thereupon 
 this action was commenced, to which insurer 
 demurred. Held, the replication was not an 
 answer to the plea. s. c, 7 B. I., 301. 
 
 13. It was provided in the insurer's char- 
 ter: " If the party sustaining loss is not sat- 
 isfied with the determination of the directors, 
 he may bring an action for the loss or dam- 
 age, at the next court to be held in the county 
 of Portage." This action was brought in the 
 county of Hocking, the place where the prop- 
 erty was situated. Heid, the suit ought to 
 have been brought in Portage county. Port- 
 age County Mtit. Ins. Co. v. Stukey, 18 Ohio, 
 455. 
 
 14. Stipulated : " No suit or action against 
 the company to recover any claim under this 
 policy shall be sustained in any court of law 
 or chancery, unless such suit shall be com- 
 menced within the term of six months next 
 after the loss.'' Held, a valid condition and a 
 bar to the action, if the suit was not com- 
 menced within the time named ; that a prom- 
 ise by insurer to insured, made soon after the 
 loss occured, to write and inform them what 
 the company intended to do, and failing to ful- 
 fill that promise, was not sufiScient to estop 
 the company from invoking the aid of the 
 condition. McFarland c. Peabody Ins. Co., 6 
 W. Va., 425; Same v. JBtna Ins. Co., id., 437. 
 15. Stipulated: "No suit or action shall 
 be sustained, unless commenced within six 
 months after the loss." An action was com- 
 menced within that time, but it was abated 
 after the six months had expired, and this suit 
 
 was brought within one year after the abate- 
 ment. The statute provided : " Where an ac- 
 tion has been brought in due time, but has 
 been abated, ai-rested or reversed, the plaintiff 
 may bring another within one year after the 
 abatement, arrest or reversal, the statute of 
 limitations to the contrary notwithstanding." 
 Hdd, the statute did not help the plaintiff, 
 for the agreement of the parties must govern 
 their rights ; hence, the insurers were released. 
 McFarland v. ^tna Ins. Co., 6 W. Va., 437. 
 
 16. Stipulated: "AH claims shall be for- 
 feited if suit be not brought in the next term 
 of the court in St. Louis county, unless such 
 shall be held within sixty days after the refusal 
 to pay, and then to the next court tliereafter." 
 Heid, the stipulation operated as a limitation 
 upon the rights of insured, and as the action 
 was brought after the time limited, it could 
 not be maintained. Eeim v. Home Hut. Ins. 
 Co., 42 Mo., 88. 
 
 17. Stipulated : "All claims under this pol- 
 icy are barred unless prosecuted (that is, sued 
 on) within one year from the date of the loss." 
 The action was not brought within one year 
 from the date of the loss, but it was brought 
 within one year from the time the right of ac- 
 tion accrued. Held, the stipulation was valid ; 
 that a failure to bring the suit within a year 
 from the date of the loss, released the insurer. 
 Can-away v. Mercfiants Mut. Ins. Co., 26 La. 
 An., 298. 
 
 18. The loss occured April 3, 1859. This 
 suit was commenced July 27, 1860. The pol- 
 icy stipulated that no action could be main- 
 tained upon it, unless commenced within 
 twelve months after the loss. The secretary 
 told insured that the company would not pay 
 the claim. October 7, 1859, he wrote : " Our 
 board did not take action on your case at 
 their last meeting. They had a prolonged ses- 
 sion till after 10 o'clock at night, and 
 much business was left over." November 10th, 
 the company's book-keeper wrote : "Yours of 
 17tli at hand; secretary is absent, will hand 
 him your letter on his return." November loth, 
 secretary wrote : " I have been absent for more 
 than a month past; returned yesterday; can- 
 not say what has been done by the board du- 
 ring my absence. My clerks say we ai-e gar- 
 nishied by St. Louis parties for your claim and 
 will have to answer that garnishee." Held, 
 not evidence of negotiations for settlement, 
 and not sufficient to justify the delay in bring- 
 
 887 
 
775 
 
 LIVE STOCK — LOST OR NOT LOST. 
 
 Miscellaneoas. 
 
 ing the suit within the year. Peoria Marine 
 and Fire Ins. Co. v. WJtitehiU, 25 111., 466. 
 
 19. The premises insured were described in 
 the policy as " Lot No. 14 Walton Ward (Rob- 
 ertsville) fronting on Stewart St." There was 
 no store or house of any kind on the lot des- 
 ignated, but the premises were " Lot No. 14, 
 part of Garden lot No. 11 west, Walton Ward, 
 in the city of Savannah." The policy stipu- 
 lated that no action should be maintained up- 
 on it unless commenced within six months 
 after the right of action accrued. This bill 
 was filed after six months had elapsed ; but it 
 was not in aid of a suit at law. Held, the 
 stipulation violated no principle of public 
 policy ; the parties had the right to contract 
 that the action should be barred by lapse 
 of time leas than that fixed by the statute of 
 limitations. Brown v. Savannah Mut. Ins. Co., 
 24 Ga., 07. 
 
 20. Stipulated: "All claims under this 
 ■policy are barred, unless prosecuted within 
 one year from the date of the loss." The pe- 
 tition was filed November 3, 1868, and averred 
 a loss August 11, 1867. Held, prosecution de- 
 notes the means adopted to bring offenders to 
 legal punishment, and in this contract it 
 means suit or action, hence the failure to 
 bring the action within a year from the date 
 of the loss was au effectual bar. Merchants 
 Mut: Ins. Co. v. La Croix, 35 Tex., 249. 
 
 21. The policy provided that the trustees of 
 the company should only be answerable in the 
 English courts for the sum insured. Held, the 
 restriction was part of the contract to which 
 the plaintiff became a party, hence the court 
 could not substitute service of process upon 
 the resident agent in Ireland. Lyonskey «, 
 AsyVum Life Ass. Co., 9 Jr. L. R., 299. 
 
 82. Contract to reinsure ; stipulated : " No 
 suit shall be maintained unless commenced 
 within twelve months after the loss shall 
 occur." The loss occuiTcd in November, 
 1854, and the plaintiffs paid the owner of the 
 property his claim in Ausrust, 1856 ; but did 
 not bring their suit until August 9, 1856. 
 Held, it was brought too late, for the loss or 
 damage mentioned in the policy, referred to 
 the injury to the subject insured. Provincial 
 Ins. Co. V. j^tna Ins. Co., 16 U. C. Q. B., 185. 
 
 23. The declaration contained an averment 
 
 that there was no person on whom service of 
 
 process could have been made within twelve 
 
 months after the action accrued. Held, the 
 
 388 
 
 condition to sue within twelve months being 
 the subject of a plea, the averment in the 
 declaration, accounting for the failure tu 
 bring the action, was mere surplusage, and not 
 traversable. Ketchum n. Protection Ins. Co., 
 1 Allen, N. B., 136. And a replication to a 
 plea which set up the failure to bring the suit, 
 averring that the corporation was a nonresi- 
 dent, and no appearance could have been pro- 
 cured within the time, was bad, because the 
 matter replied was wholly immaterial, for the 
 defendant might have been sued at Its domi- 
 cile, or process might have been sued out in 
 this state within the time limited. Ihid. 
 
 YIII. Of statutoet pkoyisio^s. 
 
 The sixth section of the act of December 
 21, 1865, regulating foreign insurance com- 
 panies, provides that " No such insurance com- 
 pany shall insert any condition, in any policy 
 hereafter issued, requiring the insured to give 
 notice forthwith, or within the period of time 
 less than five days, of the loss of the insured 
 property ; nor shall any condition be inserted 
 in such policy, requiring the insured to pro- 
 cure the certificate of the nearest justice of 
 the peace, mayor, judge, clergyman, or other 
 ofiicial, or person, of such loss, or the amount 
 of such loss ; and any provision or condition, 
 contrary to the provisions of this section, or 
 any condition in said policy inserted to avoid 
 the provisions of this section shall be void and 
 no condition or agreement not to sue for a 
 period less than three years shall be valid." 
 (3 Ind. Stat., 815.) Held, this provision of the 
 statute was valid as to all policies made after 
 the act became a law. Aurora Fire Ins. Co. v. 
 Johnson, 46 Ind., 815. 
 
 LIVE STOCK. 
 
 (See PouoT.) 
 
 LOST OR NOT LOST. 
 
 1. The policy, by its terms, was to commence 
 January 1, 1869, and to continue till January 
 1, 1870. It did not contain the words "lost 
 or not lost." She was lost January 6, 1809. 
 
777 
 
 LOST POLICY. 
 
 778 
 
 Miscellaneous. 
 
 The insurance was eflEected March 1, 1869. 
 Held, the contract wtis intended to cover a 
 previous loss (affirming s. c, 8 Blatch., 100 j 9 
 id., 301). Inttiranee Go. «. FoUom, 18 Wall., 
 237. 
 
 Sf. Insured resided in the city of New York, 
 and effected insurance August 8th, $15,600 on 
 tobacco lost, or not lost, from Dycusburg, 
 Kentucky, to New York, for account of whom 
 it might concern. It was carried from Dy- 
 cusburg, by steamboat, to Paducah, where it 
 was transhipped to the "Mary Irwin," for her 
 to carry it to Cincinnati. Insured received 
 the bill of lading August 2d, and caused in- 
 surance lo be made on the 8thj The " Mary 
 Irwin " struck a snag August 1st, about forty 
 miles west of Cincinnati, and sank. It was 
 rescued and sold at Cincinnati, where it netted 
 the sum of 1812.11. H'XdL, prima faeie, the 
 contract was valid, and the burden was upon 
 the defendant to show that insured had notice 
 of the loss before the insurance was effected ; 
 that a letter, containing a notice of the loss, 
 written at Cincinnati, dated August 5th, ad- 
 dressed to the insured at New York and 
 mailed at Cincinnati, did not establish that 
 insured had notice of ihe loss before the policy 
 was made, for the insured denied that the let- 
 ter was ever received ; and another letter, writ- 
 ten at Cincinnati at the same time, by the 
 same person, addressed to other persons in the 
 ci^ of New York, and received there August 
 8th, was not evidence that insured received 
 the letter addressed to them, but tended to 
 show that, had the letter been put in the mails, 
 it would have been received. Clement v. 
 Phwnix Ins. Co., 6 Blatch., 481. 
 
 3. On cargo " lost or not lost," on board of 
 ship now on whaling voyage, beginning the 
 adventure upon the said cargo as aforesaid, 
 relates back to the commencement of the voy- 
 age, and covers a loss which happened ante- 
 rior to the date of the policy. Paddock o. 
 FratiMin Int. Co., 11 Pick., 227. 
 
 4. Policy on cargo " lost or not lost." They 
 were lost two days prior to the date of the 
 policy. Held, daily papers of the city, con- 
 taining information of the loss, received at the 
 insurer's office on the same day, and before the 
 contract was made, were not presumptive evi- 
 dence that insurer had received information 
 of the loss before the policy was made, for 
 notice to one agent of a body corporate is not 
 necessarily notice to another agent; hence, it 
 
 did not tend to pnove that the person who 
 made the policy had information that the loss 
 had occurred at the time he made it. Mer- 
 chants Ins. Co. v. Paige, 60 111., 448. 
 
 5. On cargo " lost or not lost, to be towed 
 by steamboat from St. Louis to Helena, begin- 
 ning the adventure upon said property from 
 and immediately following the loading thereof 
 (in boai'd of said boat" It was burned before 
 the trip commenced. Held, the cargo was pro- 
 tected by tlie policy when the loss occurred. 
 Schroeder «. Stock and Mut. Ins. Co., 46 Mo., 
 174. 
 
 6. " Lost or not lost, warranted well Decem- 
 ber 9th." They were lost at 8 o'clock of that 
 day, about eight hours before the policy was 
 made. Held, if the ship was well at any time 
 on that day the insurers were liable. Black- 
 hurst v. Cockell, 3 Term, 360. 
 
 7. Risk on ship was offered and accepted, 
 lost or not lost, February loth, for one year ; 
 but the policy was not formally executed till 
 October 21st, before which a loss, known to 
 both parties had occurred. Held, tlie policy 
 was valid. Mead v. Davidson, 3 A. & E., 803 ; 
 4 L. J. (N. S.), K. B., 193; 4 N. & M., 701. 
 
 8. On goods lost or not lost Insured ac- 
 quired his interest after a partial loss occurred 
 on them. Held, the policy was valid, unless 
 he had knowledge of the loss when he pro- 
 cured it Sutherland o. Pratt, 11 Mee. & W., 
 296; 12L. J. Ex.,235; 13 id., 246; 7 Jur.,261. 
 
 9. " On ship lost or not lost, from Cardiff to 
 Ballyshannon ; " but in a subsequent part of 
 the policy it was stated; " Warranted safe in 
 port November 27th." She was safe in port 
 at Sligo on that day. Held, safe in port meant 
 the port of departure; that as she was at Sligo 
 on that day, the warranty was not satisfied. 
 KernaAan v. National Ass. Co., 10 Ir. L. R., 
 319. 
 
 10. Lost or not lost Held, insurers were 
 bound for the loss, though it occurred before 
 the policy was made, provided there was no 
 undue concealment Stone v. Aberdeen Mut. 
 Ins. Co., 11 C. C. S., 1041. 
 
 LOST POLICY 
 
 1. The policy was lost or destroyed in the 
 life time of insured. Held, an order of court 
 to pay the money to the administratrix was 
 
779 
 
 MASTER OF SHIP. 
 
 780 
 
 When his sale is justifialde — When his sale is not justifiable. 
 
 suflSclent Indemnity to the company. Orokatt 
 V. Fm% 25 L. J. Ch., 552. 
 
 2. The policy had been lost many years 
 prior to the death of the person insured. 
 Sdd, payment of the money into court would 
 be a sufficient indemnity against all future 
 claims. England v. Tredegwr, 35 Beav., 256. 
 
 MASTER OF SHIP. 
 
 I. When his sale is justifiable. 
 
 II. HOT JUSTIFIABLE. 
 
 III. HE BECOMES INSURED'S AGENT. 
 
 IV. ,0p his DUTIES AKD NEGLIGENCE. 
 
 V. Questions fob the jurt. 
 
 I. "When his sale is justifiable. 
 
 1. On cargo. It -was sold at a point of dis- 
 tress. Held, what may be done, ought to be 
 done, but that this general rule is restricted 
 within reasonable limits which are to be 
 determined by the circumstances of the case ; 
 that where resort must be had to distant places, 
 and, independently of procuring another ves- 
 sel, there are other serious impediments in 
 the way of putting the cargo aboard, the mas- 
 ter is not bound to procure another vessel to 
 carry the cargo. TreadweU v. Union Ing. Co., 
 6 Cow., 270. 
 
 2. She was sold under a decree of con- 
 demnation at Porto Rico. Was purchased by 
 -the master. Held, where the vessel is pur- 
 chased after condemnation for account of the 
 insured, the insurers have the right, if they 
 see fit, to exercise it within a reasonable time, 
 to take the purchase for themselves, and if the 
 insured refuses to surrender the bargain, the 
 loss ceases to be total. An abandonment 
 relates back to the time of the disaster, aad all 
 intermediate acts of master and agents of in- 
 sured enure to the benefit of the insurer. Any 
 purchase made by the master or agents of in- 
 sured, no matter for whose account, becomes 
 the purchase of the insurers if they adopt it 
 in due season. But if insurers do not claim 
 the purchase, and contest their liability on 
 other grounds, they waive their right to con- 
 sider the purchase as made for their account 
 and are liable for a total loss. Maryland Ins. 
 Co. V. Bathunt, 5 G & J., 159. 
 
 390 
 
 3. Ship was badly shattered in a storm, 
 and surveyors were of opinion that expense 
 of repairs would exceed her original value. 
 The master sold her lona fide fur the benefit 
 of all concerned. Held, he was justified. 
 Robertson v. Clarke, 1 Bing., 445; 8 Moore, 
 622. 
 
 II. When his sale is not justitiable. 
 
 1. The master is the agent of aU concerned 
 in the voyage, and whenever an abandonment 
 has been accepted he becomes, by relation, 
 the agent of insurers from the time of the loss; 
 and a sale made by him is made for account 
 of insurers ; but it is not sufficient to justify 
 the master's sale, that he acted in good faith 
 and in the exercise of his best discretion; 
 there must have been an urgent necessi^ to 
 sell in order to preserve the interests of all 
 concerned. If the vessel could not have been 
 delivered from the peril without the hazard 
 of an expense disproportionate to her real 
 value, the master is justified in selling, and 
 he could sell as well in a home shore as on a 
 foreign strand. Brig Sarah Ann, 2 Sumn., 206. 
 
 2. While it is true, that the master may sell 
 the ship in a proper case, yet, if he sell with- 
 out authority, his sale does not take away 
 from the insured the right to abandon. Center 
 v. American Ins. Co., 7 Cow., 564; afiSrmed, 4 
 Wend., 46. 
 
 3. She was driven into Valparaiso in dis- 
 tress. The master might have communicated 
 with his owner in New York, and have re- 
 ceived an answer within eighty or ninety 
 days. It would have taken two months more to 
 make the repairs ; but he did not communicate 
 with his owner. The damaged condition of 
 the cargo was such as to make the voyage not 
 worth prosecuting, and being unable to pro- 
 cure funds to make the necessary repairs, he 
 broke up the voyage and sold her. Held, he 
 was not justified in so doing. Buekman ii. 
 Merchants Louisville Ins. Co., 5 Dner, 342. 
 
 4. The expense of repairing a ship in her 
 port of distress, is not the criterion for deter- 
 mining whether the loss is constructively 
 total. If she can be navigated to a port where 
 she can be repaired at less than fifty per cent, 
 of her value, it is the duty of the master to 
 proceed ; and if he fails to do so, and sells at 
 the port of distress, the loss is not construct- 
 ively total. Hall V. JFrarMin Ins. Co., 9 Pick., 
 466. 
 
781 
 
 MASTER OF SHIP. 
 
 782 
 
 Wien he becomes insurer's agent 
 
 5. If the injury sustained by a vessel does 
 not warrant an abandonment, it is not such a 
 case of necessity as will justify the sale of hor 
 by the master. Orrok v. Cotmnonuiealth Ins. 
 <?o., 81 Pick., 456, 
 
 6. The master's sale is not justified by show- 
 ing that fUnds could not have been obtained 
 at the port of distress, to make repairs, nor 
 \riU his good faith alone justify the sale. He 
 must act with good judgment and discretion, 
 as a prudent owner, under like circumstances, 
 would have acted. If by reasonable means, 
 and without extraordinary and unreasonable 
 delay, he could have communicated with in- 
 surers, and afforded them an opportunity to 
 raise the money, he was bound to do sn. Ste- 
 phenson o. Pacific Hut. Ins. Go., 7 Allen, 233. 
 
 7. She was cast upon the rocks at Hellgate, 
 abandoned to insurers, got off, carried to I^ew 
 York, and there sold at auction by the master. It 
 was contended that the sale was a mere sham, 
 without authority, and void. She was subse- 
 quently delivered by the purchaser to tlie 
 plaintiff, who gave credit to the insurers for 
 tlie purchase money. Held, the court ought to 
 have Instructed the jury that if the sale was 
 pretended, merely with a view to subject the 
 defendants to a total loss, and there was no 
 payment of purchase money, the jury would 
 be warranted in finding that the insured had 
 waived the abandonment King v. Hartford 
 Int. Co., 1 Conn., 333. 
 
 8. In order to justify a sale by the master, 
 necessity and good faith must concur, but the 
 necessity cannot be inferred from the master's 
 good faith, for he may err in judgment; nor 
 can the master's good faith be inferred from 
 the necessity that exists, for he may collude 
 with the purchaser. If the damage sustained 
 was trivial, and could have been repaired 
 at the place where the ship was, or at a 
 place to which she might have been readily 
 taken, there was no necessity for the sale, 
 whatever may have been the judgment and 
 good faith of the master. Stephenson e. Piseat- 
 aqua Pire and Marine Ins. Co., 54 Me., 55. 
 
 9. On ship from Liverpool to Narva. She 
 struck on a rock near Gottenburg. The crew 
 abandoned her. The master was advised to 
 sell her as she lay, and she was sold there for 
 about £18. Shortly after, she floated two or 
 three miles, fetched up on the island of Fomo. 
 She was afterwards got off and repaired, at an 
 expense of £375. Held, if the master, by 
 
 means within his reach, could have made an 
 experiment, with a fair hope of restoring her 
 to the character of a ship, he could not, by 
 selling her, make the loss total. Gardner v. 
 Salvador, 1 M. & Rob., 116. 
 
 10. On cargo, from London to Demarara. She 
 was captured and plundered of her stores, and 
 her crew, except the master and a boy, taken 
 away ; afterwards recaptured and carried into 
 St. Thomas. Upon the master's petition, a 
 court of admiralty ordered the ship and cargo 
 sold. No crew could be obtained, nor could 
 the salvage be paid, except by selling the 
 cargo, which was sold at a loss exceeding 
 sixty per cent HM, the master ought to have 
 waited a reasonable time to have procured a 
 crew; he waited but three days before procur- 
 ing the order of sale, which was not justifiable. 
 Undencood v. Sobertion, 4 Camp., 138. 
 
 III. When he becomes insueee's 
 
 AGENT. 
 
 1. The master is the agent of the insurer 
 after a valid abandonment is made. Gardere 
 V. Colianbiom Ins. Co., 7 Johns., 514. 
 
 2. Where the bill of lading directs the mas- 
 ter to deliver the cargo to a person named as 
 supercargo, the supercargo has no control of 
 the cargo until it arrives at the port of destina- 
 tion, and if a disaster has happened, the mas- 
 ter becomes the agent of whomsoever it might 
 concern ; and, by a valid abandonment, then 
 becomes the agent of the insurers ; and, a de- 
 livery of the cargo, after abandonment, to the 
 supercargo, is a delivery to him as the agent 
 of the master; and his acts are thenceforth the 
 acts of the master, not of the cargo owner. 
 Catlett V. Pacific Ins. Co., 1 Wend., 561; 
 afiBrmed, 4 Wend., 75. 
 
 3. Vessel and cargo were seized and carried 
 into Naples. The captors instituted process 
 in the imperial council of prizes in Paris. 
 The supercargo made a compromise with the 
 captors. Held, the supercargo had authority 
 to make the compromise, and a reasonable 
 compromise so made was binding upon in- 
 surers. WeUes V. Oray, 10 Mass., 42. 
 
 4. The master, in cases of necessity, be- 
 comes, by law, an agent of tlie insurers as well 
 as of the insured. Gordon v. Mass. Fire and 
 Marine Ins. Co., 2 Pick., 249. 
 
 5. Some time after an' abandonment was 
 offered, the vessel and cargo were sold by the 
 
 891 
 
783 
 
 MASTER OF SHIP. 
 
 784 
 
 Of his duties and negligence. 
 
 master. Heid, if the abandonment was valid, 
 insured could not be deprived of the benefits 
 of it by any subsequent act of the master, or 
 by his want of diligence, skill or care, for he 
 then became the agent of the insurers. Dela^ 
 ware Ins. Go. ■o. Winter, 38 Penn. St, 176. 
 
 6. The master contracted with the owner of 
 a bell boat to save what he could from the 
 wreck, agreeing that the salvor should have a 
 certain per centage of whatever he might save. 
 Mdd, the master became the agent of the un- 
 derwriters after the disaster occurred, and that 
 his agreement was valid and binding upon 
 them if they were liable at all. OmM v. Giti- 
 ietii Ins. Go., 13 Mo., 534. 
 
 7. She was damaged over fifty per cent, of 
 her value. Insured offered to abandon, but 
 insurers refused to accept, and the master sold 
 her for the benefit of all concerned. Meld, the 
 abandonment passed the property to insurers, 
 and thereafter the master became their agent, 
 and the sale was the sale of the insurers. PhU- 
 lips V. St. Louis Perpetual Itis. Co., 11 La. An., 
 459. 
 
 8. If an abandonment was made under such 
 circumstances as legally authorized such a 
 step on the part of insured, insurers, being 
 bound to indemnify insured as for a total loss, 
 must be considered as owners of the property 
 abandoned, ipso factii, without any formal ac- 
 ceptance, and the original owners of the prop- 
 erty abandoned, become the negotiorum. gestores 
 of the underwriters for all purposes relative to 
 the interests of the latter. Mellon v. Bucks, 17 
 Martin (La.), 371. 
 
 9. She was captured, and instued aban- 
 doned. Seld, the acts of the master, after the 
 abandonment, must be considered the acts of 
 the insurers, for he was their agent, and his 
 misconduct while acting as their agent, though 
 it amounted to barratry, was chargeable to 
 them. Oampbdl v. Williamson, 2 Bay, 337. 
 
 10. On cargo. She was wrecked on one of 
 the Bahama banks. An abandonment was 
 made. Wreckers took possession and carried 
 some of the cai-go, at the instance of the mas- 
 ter, to Nassau ; tlie balance not being worth 
 attention. The wreckers and master agreed to 
 refer the quantum of salvage to arbitrators, 
 who fixed it at forty per cent The cargo was 
 sold, and the balance of the proceeds, between 
 three and four thousand dollars, paid to the 
 master, who absconded and never paid it over. 
 Held, after the abandonment he was the agent 
 
 393 
 
 of the insurers, and they must suffer for his 
 fraud. Mordeeai «. ViremaWs Ins. Go., 13 
 Rich., 512. 
 
 lY. Of his duties akd negligence. 
 
 1. The master cannot mortgage the ship for 
 the benefit of the cargo, but he may sell or 
 hypothecate the cargo to enable the ship to 
 proceed, in cases of extreme necessity.. Fon- 
 taine i>. Columbian Ins. Co., 9 Johns., 30. 
 
 2. She was driven into a port of distress, 
 where she was sold because the master could 
 not procure the necessary funds to make re- 
 pairs. Seld, the true inquiry must be: " What 
 diligence did the master exercise for the pur- 
 pose of making repairs ? " If he could not 
 procure the money upon his own or his own- 
 er's credit, the law not only gives him the 
 right, but makes it his duty to Secure the 
 money in whole or in part upon the property 
 and interest under his control, which he 
 might pledge by bottomry, respondentia or 
 mortgage ; and when these have proved inef- 
 fectual, then he is justified in breaking up the 
 voyage, and his owner, if insured, has the ^ 
 right to abandon; but the master's efforts 
 must not be limited to the port in which the 
 vessel has found refuge. Suclanan t. Mer- 
 chants Louisville Ins. Co., 5 Duer, 342. 
 
 3. If the master can consult with the own- 
 ers of cargo, he must keep it, if it can be 
 kept, until the owners are consulted. Bryant 
 0. Commonwealth Ins. Co., 13 Pick., 543. 
 
 4. She was stranded on a sand bar in the 
 mouth of the St John's riveri Florida, and 
 abandoned by the master and crew. The 
 master and crew of a steamboat subsequently 
 found and got her afloat. There was no judicial 
 court nearer than St Augustine, and the mas- 
 ter and salvors referred the question of salvage 
 to arbitrators, who awarded ninety per cent 
 to salvors. She was sold, and after payittg 
 the salvage but $95 remained for the owners. 
 Held, the master had not the right to refer the 
 question of salvage to arbitrators. Robinson 
 Georges Ins. Co., 17 Me., 131. 
 
 5. The defendant pleaded that the cargo 
 consisted of timber and wood goods; that she 
 cleared and sailed from a British port of 
 North America, between September 1, 1861, 
 and May 1, 1862; that at the time of the sail- 
 ing a part of the cargo was not below deck, 
 and that the master had not procured a certi- 
 
r85 
 
 MASTER'S PROTEST. 
 
 786 
 
 When it is admissible as evidence. 
 
 ficate from tbe clewing officer that the cargo 
 was helow deck, contrary to the statute," etc 
 Held, had because it did not aver that the in- 
 sured had knowledge of the fact; that if the 
 nnlawfViI act is without the knowledge of the 
 insured, he is entitled to recover (citing Earle 
 ». Rowcroft, 8 East, 126; Canard o. Hyde, El., 
 Bl. & El., 670). WiUon e. JSonAin, 6 B. & S., 
 308; s. c 11 Jur. (N. S.), 173; 34 L. J. Q. B., 
 63; 18 W. R., 4(M; 13 L. T. (N. S.), 20; af- 
 firmed, 6 R & a, 231 ; s. c 35 L. J. Q. B., 203 ; 
 M W. R., 198; 13 L. T. (N. S.), 564; 1 L. R Q. 
 B., 163. 
 
 6. If the master takes passengers on board 
 without the knowledge of the ship owner, 
 and fkils to comply with sec. 818 of the Mer- 
 chants Shipping Act of ISiM, which requires a 
 certificate that " She is fit to carry passen- 
 gers," that does not yitiate the contract of in- 
 surance (citing Wilson •. Rankin, 1 L. R. Q. 
 R, 163; Cunard ». Hyde, EI., Bl. & El.. 670; 
 27 L. J. Q. B., 408). Dudgton o. Pembroke, 9 
 L. R. Q. B., 581 ; 43 L. J. Q. B., 330; 33 W. R, 
 914; 31 L. T. (N. S.), 31. 
 
 V. QuKsnojsrs fob the jitbt. 
 
 1. The master directed the vessel to be 
 broken up and sold. Held, if this was jns- 
 tifiahle, and the purchaser aoqnired a good 
 title, an offer to abandon would not be 
 required; but this result depended entirely 
 upon the causes which led to the sale. The 
 master cannot sell unless in a case of ex- 
 treme necessity, and then he must act with 
 perfect good faith, and the jury are to judge 
 of the conduct of the master from the state 
 of things at the time and place where the 
 sale took place. Gordon e. MaisaehtuOU Fire 
 and Marine In*. Co., 2 Pick^ 249. 
 
 2. Whether the sale of a ship at the place 
 of distress is anthoriied by necessity, is a 
 question for the jury, who are to consider 
 how a discreet and prudent owner would have 
 acted under the same or similar circum- 
 stances. Winn V. CobufibiaH /in. Co., 13 
 Pick., 279. 
 
 3. To constitute a consfiructive total loss (in 
 the absence of proof of damage to the extent 
 of half the value of the vessel, after deducting 
 one4hird new for oldX insured is bound to 
 show that the sale was made by the master, 
 acting in good faith, for the benefit of all par- 
 
 ties interested, and under the pressure of a 
 necessity produced by the perils assumed by 
 insurers. Paddock c. Commercial Ins. Co., 3 
 Allen, 93. 
 
 4. The court instructed the jury: "The 
 plaintiff' is entitled to recover as for a total 
 loss if the jury are satisfied that the sale by 
 the master was justifiable under the circum- 
 stances of the case as proved. Meld, it was 
 equivalent to saying there was sufficient evi- 
 dence to justify the sale, but the jury should 
 be satisfied of its truth, and this was clearly 
 right; for whether the sale was justifiable was 
 a mixed question of law and fact. If the facts 
 had been admitted, tlien it would have been a 
 question of law; but as they were controverted, 
 it became a question of fact, suljcct to certain 
 rules of law (citing Stephenson «. Piscataqna 
 Ins. Co., 54 Me., 55; Prince v. Ocean Ins. Co., 
 40 id., 481). I>uaaiHg «. Merelumti Mutual 
 Marine Jjw. Co., 57 Me., 108. 
 
 5. The master sold her because, as he al- 
 leged, it was impossible to make the repairs. 
 Beid, it was for the jury to determine whether 
 the sale was justifiable and under the pressure 
 of urgent necessi^. Lindsay v. LeatU^, 3 F. 
 & F., 903. 
 
 MASTER'S PROTEST. 
 I. When rr is ADinssiBus as eyidencb 
 
 II. SOT ADHISSIBLB AS EVZDENCB. 
 
 I. When it is AD^nssTBT.E as evidence. 
 
 1. The master's protest is evidence in a case 
 upon a policy of insurance. Crousittat v. 
 Pall, 3 Teates, 375 ; 4 Dall., 294. 
 
 2. The protest of the master is evidence in 
 an action upon the policy. Broun v. Girard, 
 4 Teates, 115. 
 
 3. The master's protest is admissible for in- 
 sured in an action on the policy. Miller e. 
 South Carolina Ins. Co., 2 McCord, 3-36. 
 
 4. The master's protest stated the cause of 
 the loss, vix: " She was driven in a tempest 
 away from the convoy and captured." Held, 
 competent and sufficient evidence to show a 
 loss by capture. Campitdl e. WiUiamton, 3 
 Bay, 237. 
 
787' 
 
 MECHANICS' LIEN — MERGER. 
 
 788 
 
 Miscell^Lneous. 
 
 II. Whek it is not admissible as evi- 
 dence. 
 
 1. The plaintiff offered in evidence the 
 master's protest made at Alexandria, Septem- 
 her 23, 1786. He was picked up at sea, and 
 arrived at Newburyport August 12th preced- 
 ing. He passed through Philadelphia to 
 Alexandria before he' made the protest. Held, 
 it ought to have been made at the first port; 
 and because it was not, it was rejected as evi- 
 dence in the case. Boyee v. Moore, 2 Dall., 196. 
 
 2. The master's protest is not evidence un- 
 less made within twenty-four hours after the 
 vessel is moored at her port of destination. 
 Fleming v. Marine Ins. Co., 3 W. & S., 144. 
 
 3. If the master's protest is not made with- 
 in twenty-four hours after she reaches her 
 port of destination, it is not independent evi- 
 dence, but it is part of the preliminary proof; 
 and, as such, is admissible for that purpose 
 only. American Ins. Co. v. Franeia, 9 Penn. 
 St.. 390. 
 
 4. The master's protest was not allowed as 
 evidence in the cause. Ma/rine Ins. Co. «. 
 Stras, 1 Munf., 408. 
 
 5. The master was owner. Hdd, his pro- 
 test was not admissible as evidence in the 
 case ; nor could he, by erasing his name from 
 it, make it evidence. Cudworth v. South Car- 
 olina Ins. Co., 4 Bich.. 416. 
 
 6. The agent of the insured presented to 
 the insurer the master's protest with other 
 papers showing the loss. Held, this did not 
 make the protest evidence for insured. Senat 
 V. Porter, 7 Term, 158. 
 
 MECHANICS' LIEN. 
 
 (See Ihshbabls Ihtebbst; Lien.) 
 
 MEDICAL ATTENDANT. 
 
 1. The application propounded these ques- 
 tions: "How long since you were attended 
 by a physican? For what diseases? Give 
 name and residence of such physician. Name 
 and residence of your usual medical attend- 
 ant?" Answer: "Dr. Carpenter has known 
 me two years. Have none; only consulted 
 894 
 
 Dr. Carpenter now and then for slight ail- 
 ments, and taken his prescriptions." It ap. 
 peared that he had consulted Dr. Eastman 
 professionally, who made prescriptions for 
 him in 1863. It also appeared that Dr. Picot 
 had attended him professionally, but both of 
 these were mere casual prescriptions. Hdd, 
 a physician who makes a mere casual pre- 
 scription for a friend is not his usual medical 
 attendant A medical attendant is one to 
 whom the case of a sick person has been in- 
 trusted. EdingUm e. Mutual Life Ins. Co., 5 
 Hun. (N. Y.), 1. 
 
 2. The applicant was asked to state the 
 name and residence of his family physician. 
 He answered : " Have none." Held, the term 
 signifies the physician who usually attends 
 and is consulted by the members of the family 
 in the capacity of a physician ; a person who 
 usually attended the wife and children of ap- 
 plicant, was the family physician of Applicant, 
 although he was not usually consulted, and 
 if the answer was untrue, it would bar recov- 
 ery. Price v. Phoenix Mviual Life Ins. Co., 17 
 Minn., 497. 
 
 3. The policy required a reference to the 
 usual medical attendant of the life proposed, 
 who gave a false reference, that is, to a person 
 who had never attended him professionally. 
 Held, the insured could not recover upon the 
 policy. Mverett c Desborough, 5 Bing., 503 ; 
 L. J. C. P., 223 ; 3 M. & P., 190. 
 
 MEMORANDUM ARTICLES. 
 
 (See Wabsasted Fbeb iitoK Atxrase.) 
 
 MERCHANDISE. 
 
 (See CoHSTBtrcnoN.) 
 
 MERGER. 
 
 1. It is not true as a general proposition, 
 that because the act charged is a public crime, 
 the civil rights of parties affected by it are 
 merged or suspended in the right of the gov- 
 ernment to punish the criminal, even though 
 
rs9 
 
 MISDESCRIPTION — MISREPRESENTATIONS. 
 
 790 
 
 What are material. 
 
 the crime is a felony. Ocean //is. Co. e. Fieldt, 
 S Story, 69. 
 
 8. The owner of mortgaged real estate ob- 
 tained insurance on it, payable to the mortga- 
 gee in case of loss. The insurers' by-laws pro- 
 vided that no mortgaged estate should be 
 deemed alienated until foreclosure, and that any 
 policy made payable to a mortgagee, should 
 continue so payable notwithstanding a subse- 
 quent alienation of the estate. A third person 
 afterwards purchased the equity of redemp- 
 tion, and obtained an assignment of the mort- 
 gage and of the policy. Beld, the mortgage 
 merged in the fee^ and an action on the policy 
 for a loss tliat occurred subsequently could 
 not be maintained. Maeomber «. Cambridge 
 Mutual Fir* Ii». Co., 8 Cush., 13S. 
 
 3. If a debtor givers his promissory note on 
 account of a preexisting simple contract debt, 
 the note does not merge or ejEtinguish the 
 debt, but the creditor may resort to the original 
 debt PaUg^*<»Iit*.C«.t.SmHA,6H.&J.,16S. 
 
 MISDESCRIPTION 
 
 (See Dbscbiptiok.) 
 
 MILITART OR NAVAL SERVICE. 
 
 Stipulated: "Insured shall not enter into 
 any military or naval serrice whatsoever, 
 without the consent of this company." He 
 was engaged as a superintendent, constructing 
 bridges on a railroad in the employment of 
 the gOTcrnment of the United States, having 
 about fifteen laborers and mechanics under his 
 direction. The road was under the direction 
 of, and used, or to be used, by the military au- 
 thorities of thu United States. The Union 
 army was about thirty miles south, and the 
 Confederate forces were still fUrther firom the 
 laborers. There were no soldiers anywhere 
 nearer than the Union lines. Four men came 
 up and enquired fur the foreman. The de- 
 ceased replied that he was the man. They 
 ordered him to come to thum, but he did not 
 obey, and two of them fired upon him, wound- 
 ing him so that he died the following day. 
 HM, his employment was not within the pro- 
 hibition. WtUs •. ConiuUieut MMtwii Ltf« 
 In*. C», 48 N. Y., S4. 
 
 MOBS. 
 
 (See Ikvasion, Riot, iHstrsKBcinoit, Etc.) 
 
 MISTAKE. 
 
 (See SsroBiuiTioif or Wmnire.) 
 
 MISSING SHIP. 
 
 (See ToTAi. Lose.) 
 
 MISREPRESENTATIONS. 
 
 (See SsPBissNTATioHs; Sicsssss ass Disxasb.) 
 I. What ark hatkrial. 
 
 II. Not KATElRIAl,. 
 III. OstJS PKOBANDI. 
 IV. CJOSSTRtJCTlOJf. 
 
 V. Question for the jury. 
 
 YI. OSNERAIXT. 
 
 I. What ark matbriai. 
 
 1. The applicant represented that there was 
 $15,000 other insurance on property valued at 
 $19,000. The risk was reflised, and he then 
 stated that additions had been made to the 
 buildings amounting to $10,0l¥). About $700 
 0QI3- had been expended in additions. Held, 
 the policy was void, and it was immaterial 
 that the person who made the representation 
 was mistaken. Carpenitr «. Atturiean In*. 
 Co., 1 Story, 57. 
 
 2. The person insured was asked whether 
 he was m.arried or single. To which he re- 
 spondeil, " Single." He was also asked, 
 " Has any application been made to any 
 other company?" To which he answered, 
 " No." The defendant pleaded that both these 
 answers were false, to which there was a de- 
 mnrreT. Held, it was not necessary for the 
 plea to aver that the fiilse statements were ma- 
 terLil to the risk. U. S. S. C. JisJPriea •. 
 Beommieal Mvtml Life In*. (7a., 28 Wall., 47; 
 ^tna Lift In*. Co. ». .FKiiie*, 8 Chi. Leg. 
 News, 303. 
 
 S95 
 
791 
 
 MISREPRESENTATIONS, 
 
 792 
 
 What are materiaL 
 
 3. If the insured receive information of a 
 violent storm the day after ship sailed, and he 
 states that there has been blowing weather on 
 the coasts, it is a misrepresentation, and the 
 jury having found specially that the storm did 
 increase the risk, the policy is void. Ely ». 
 Hdllett, 2 Caine, 57. 
 
 4. The defendant requested the court to 
 charge if the jury should find that the insured 
 himself, or by Martin in his behalf, repre- 
 resented to the agents of the defendants that 
 the insured was the money man of the con- 
 cern, and that he was not such in fact, and 
 that the defendants would not have issued the 
 policy if such representation had not been 
 made, then the plaintiff could not recover ; but 
 the court refused. Held,&roT, for fraudulent 
 representations made by the insured to insurer 
 in connection with his application for the 
 policy, though not material to the risk, yet 
 material in the judgment of the insurer and 
 which induced him to take the risk, will avoid 
 the policy. Valton v. National Loan Fund 
 Ais., 20 N. Y., 32; s. c, 22 Barb., 9; 40* N. 
 y. (1 Keyes), 21; 4 Abb. Dec, 437; 17 Abb. 
 Pr., 268. 
 
 5. Application stated that he never had dis- 
 ease of the kidneys or bladder, or any other 
 sickness within the last ten years. The family 
 physician stated that he had attended him for 
 bilious fever two years prior, that he had no 
 symptoms of disease of the kidneys or liver, 
 or any organic disease, and the policy stipu- 
 lated that all the answers stated in the applica- 
 tion were true. For some years prior to the 
 application he had some disease of the kid- 
 neys, but the physicians testified that it was 
 not organic. Held, the statements were not 
 true, hence the policy was void. BritUm v. 
 Mvtual Benefit Life Ins. Co., 3 N. T. 8. C, 220 ; 
 e. c, id., 442. 
 
 6. In the application the property was rep- 
 resented free from all incumbrances. The 
 real estate and personal property were subject 
 to mortgages. Held, the policy was void. 
 Friegmufh v. Agawam, Mut. Fire Ins. Co., 10 
 Cush., 587. 
 
 7. Insured was asked to stat^ in the appli- 
 cation what amounts are now insured on the 
 life of the party, and in what company. 
 Answer. "jEtna, $10,000; Knickerbocker, 
 $15,000; $10,000 additional applied for in 
 jElna." There were two other policies, one in 
 the Guardian, and one in the Equitable, for 
 
 306 
 
 $15,000 each, not disclosed. The policy stip- 
 ulated : " If the declaration made by the in- 
 sured shall be found in any respect untrue, 
 then and in every such case the policy shall 
 be null and void." Held, the entire truthful- 
 ness of the declaration was by the terms of 
 the contract a, matter of warranty or condi- 
 tion, precedent to any right of recovery. 
 Brennan d. Security Life Ins. Go., 4 DaJy, 296. 
 
 8. On brig, one year, September 24, 1847 
 (noon), stipulated: " Said vessel not allowed 
 to cany grain in bulk aeross the Atlantic." 
 She was represented as having arrived safely 
 at Ballisdore and clean of her cargo. While 
 passing the bar, entering the harbor, she 
 grounded and sustained injuries. Held, a pos- 
 itive represent-ttion as to a material fact is as 
 essentially a part of the contract as a warran- 
 ty, and must be literally true, wherefore the 
 insurers were released. Sawyer v. Coasters 
 Mut. Ins. Co., 6 Gray, 2al. 
 
 9. Insured was asked: "Who owns the 
 buildings?" He answered: " The insured." 
 He was asked whether they were incumbered, 
 by what, and to what amount? He answered : 
 " No." The only title he had was that of 
 mortgagee, to secure the payment of a debt. 
 Held, the answers, taken together, clearly in- 
 dicated that insured had the title in himself, 
 and that no other person was owner, either as 
 mortgagor or mortgagee, the policy was there- 
 fore void. Jenkins v. Quiney Mut. Fire Ins- 
 Co., 7 Gray, 370. 
 
 ] 0, The defendant alleged a misrepresenta. 
 tion, and that it was falsely and fraudulently 
 made. Hdd, it was su£Scient to prove it false. 
 Lewis D. Eagle Ins. Co., 10 Gray, 508. 
 
 1 1 . The court instructed that " an untrue 
 statement, innocently made, in regard to a la. 
 tent disease, of which the applicant was uncon- 
 scious, would not avoid the policy;" but the 
 answers were the basis of the contract. Hdd, 
 error, for an untrue statement or denial of a 
 material fact, preceding or contemporaneous 
 with the contract, prevented the policy from 
 taking effect, whether the statement was made 
 in ignorance, good faith, or otherwise (citing 
 Curry v. Ciommonwealth Ins. Co., 10 Pick., 
 535;Wilber v. Bowditch Ins. Co., 10 Cush, 
 446; Kimball «. .^tna Ins. Co., 9 Allen, 540). 
 Campbell v. New England Life Ins. Co-, 98 
 Mass., 381. 
 
 12. The plaintiffe applied to the defend- 
 ants for reinsurance, $10,000, against loss by 
 
793 
 
 MISREPRESENTATIONS. 
 
 794 
 
 What ate material. 
 
 fire on sugar nnri molasses, on the plantation 
 of K. B. The following words were inserted 
 by the plaintiffs in the application: "We 
 have buildings." This -vras not true, in fact. 
 Sdd, a material misrepresentation, which 
 avoided the policy. Louisiana 3fitt. Iiit. Co. 
 V. Jfeie Orltana Ins. Co.. 13 La. An., 246. 
 
 13. On ship, insured in the name of a citi- 
 zen of the United States, represented to be 
 owner. She was furnished with American pa- 
 pers, but was in fact the property of subjects 
 of Spain, and was lost by a peril of the sea. 
 Held, concealing the fact of her real owner- 
 ship, and representing her as American, re- 
 leased the insurers. Price c. Jhipeau, 1 Brev., 
 453. 
 
 14. A false representation as to the value of 
 stock on hand at the time the policy issues re- 
 leases the insurer. III. S. C. Lycoming Ins. 
 Co. V. Subin, 8 Chi. Leg. News, 150. 
 
 15- The jury found that the time of sailing 
 from Baltimore was not correctly represented, 
 that she in fact sailed some days before the 
 time mentioned in the representation, but that 
 there was no fraud in concealing the time of 
 sailing. Held, a false representation of a ma- 
 terial fact avoids the policy; that except for 
 the purpose of determining whether the pre- 
 mium should be returned or not, it was imma- 
 terial whether tlie representation was fraudu- 
 lently made. Anderson v. Thornton, 8 Exchr., 
 423. 
 
 16. Tlie person proposed for insurance wa.s 
 asked by the insurer, "Who is your usual 
 medical attendant?" She replied, " C. D." She 
 had been attended by A. B. up to a time 
 shortly prior to the making of the policy; but 
 C. D. had attended her and prescribed for a 
 cold, or some other trifling matter, ffdd, the 
 answer was intended to deceive. Huckman v. 
 Ftmie, 3 Mee. & W., 505; 7 L. J. (N. S.; Ex., 
 103;2Jur., 444. 
 
 17. D. applied for insurance on the life 
 of an invalid, informing insurers as to the 
 particular defect in health. Insurers inquired 
 by letter whether any company had refused to 
 accept ; if so, to name it Reply was made that 
 applicant had been and still was correspond- 
 ing with other companies; whereupon this 
 policy was granted. It appeared that eight 
 companies had previously reftised the risk, 
 and at the time insured wrote in response to 
 this company's inquiry, several proposals for 
 insurance on the life were pending, some of 
 
 which were afterwards accepted. Held, the 
 policy was void, notwithstanding it admitted 
 on its face the truth of the statements con- 
 tained in the proposal, and was known as au 
 indisputable policy. In. re Cfeneral Provincial 
 Life Ass. Co., Ex pari* Daintree, 18 W. R.,396. 
 
 18. A misrepresentation by one party as to 
 a fact specifically inquired of by the other, 
 though not material, avoids the policy, for 
 by making the inquiry, the matter is made 
 material (citing Campbell v. New England 
 Mut. Ins. Co., 98 Mass., 381). Miller v. Mutual 
 Benefit Life Ins. Co., 31 Iowa, 31 6 ; Day v. Mutual 
 Benefit Life Ins. Co., 1 MacArthur, 41 ; JFitch 
 V. American Popular Life Ins. Co., 59 N. Y., 
 557. 
 
 19. It was stated in the proposal for a 
 policy to guaranty the fidelity of A., that his 
 duties were to collect and account for tax 
 moneys collected, that the largest sum to be 
 held by him was £200, to be kept not longer 
 than a week; that his accounts were to be 
 checked weekly by the surveyor of taxes, 
 and the balance, ascertained at every such 
 period, would be paid over. It appeared that 
 the payments made were from £300 to £400, 
 and the moneys were retained by him from 
 ten days to two weeks. The person guarantied 
 defaulted with £600 or £700 in hand. Held, the 
 represetations were false, and the policy void. 
 Towle V. Nationl Guardian Ass. Soc., 30 L. J. 
 Ch., 900; 7 Jur. (N. S.), 618; 10 W. R., 49; 5 
 L. T. (N. S.), 193. 
 
 20. The ship was represented as sailing 
 with license and without convoy for Gibraltar, 
 Cagliari and Majorca. She had a license to 
 sail without convoy to Oibraltar, and sailed 
 thence without convoy or license. Held, the 
 policy was void. Darby v. Neuton, 6 Taunt., 
 544; s. c, 8 Marsh., 353. 
 
 21. It was stated in the proposal that no 
 other office or offices had declined to insure 
 the life proposed. The contract stipulated: 
 " If the declaration made by the plaintiff is 
 not in every respect true, tlien the insurance 
 shall be void." It appeared that two other 
 offices had declined to issue a policy on Uia 
 life proposed, but the plaintiff did not know 
 that fact HeUd, no recovery could be had. 
 Maedonald v. Law Union Fire and Life Ins. 
 Co., 9 L. R. Q. B., 338; 43 L. J. Q. B., 131; 33 
 W. R, 530; 30 L. T. (N. S.), 545. 
 
 22. The jury found that at the time proposal 
 was made, he was not a person of temperate 
 
 397 
 
795 
 
 MISREPRESENTATIONS. 
 
 790 
 
 What are not material. 
 
 habits; that he had been aflBicted with delir- 
 Inm tremens; that his representations to in- 
 surer's medical attendant was not true as to 
 the state of his health, but that he made these 
 statements, botia fide. Held, defendants were 
 entitled to judgment Button v. Waterloo Life 
 In*.. Go., 1 F. & F., 735. 
 
 23. The defendant company procured rein-" 
 surance, representing that it was their intention 
 to retain part of the risk. The offer and ac- 
 ceptance took place May lOlh. The premium 
 was not paid until, eight days thereafter. In 
 the meantime the directors of the defendant 
 determined not to retain any portion of the 
 risk, and reinsured the whole of it in another 
 company. Held, the representation was a ma- 
 terial inducement for the plaintiff to enter into 
 the contract, and whether it ceased to be true 
 from accident or design, was immaterial ; that 
 the plaintiffs were entitled to have the policy 
 policy delivered and canceled. Traill v. Bar- 
 ing, 4 De a., J. & S., 318; 10 Jur. (N. S.), 377; 
 12 W. R., 678 ; 10 L. T. (N. S.), 215. Affirming, 
 4 Giff., 485; 10 Jur. (N. S.), 87; 33 L. J. Ch., 
 521 ; 12 W. R., 334; 9 L. T. (N. S), 708. 
 
 24. The jury were desired to inform the 
 court whether the verdict was founded on tlie 
 fact that the age was correctly answered. 
 They answered that the age had been misrep- 
 resented, but that the misrepreseatation was 
 not intentional. Held, the verdict must be set 
 aside. Mii/rphy v. Harris, Batty, 206. 
 
 25. Insured represented that ship was re- 
 ported to have sailed, but he knew that she 
 had sailed. Held, a material misrepresenta- 
 tion which vitiated the policy. Kinloch ®. 
 Duguid, Faculty Dec, 1813 to 1814, p. 108. 
 
 26. Insured was asked to state the cash val- 
 ue of the property to be insured. He an- 
 swered, " $30,000," that it would be increased 
 to 150,000; the average value was 130,000. 
 Held, it was the representation of a fact; if it 
 was false though not fraudulent, plaintiff 
 could not recover, because it was the repre- 
 sentation of a fact calculated to mislead. Sob- 
 bitt V. Linerpool, London and Globe Ins. Oo., 66 
 N. C, 70. 
 
 27. A London merchant in procuring in- 
 surance at Leith, represented that he iiad 
 made insurance on the same voyage at Lloyds, 
 for the same rate of premium which he offered 
 to the underwriters at Leith, eight guineas per 
 cent; but the Leith underwriters discovered 
 that the premiums paid at Lloyds on this 
 
 ship were fifteen, eighteen and twenty-flTO 
 guineas. Held, the representation was fraud- 
 ulent; that it induced a confidence, without 
 which the insurer would not have acted, and 
 that, therefore, the policy was void (reversing 
 B. c. Faculty Bee, 1808 to 1810, p. 803). Bib- 
 bald D. mu, 2 Dow, 26.3. 
 
 II. What are not mateeial. 
 
 1. Every alleged misrepresentation must he 
 material to the risk ; and an allegation that 
 she was worth only $3,000 when insured, and 
 that she was valued in the policy at $10,000, is 
 unimportant, unless it appeared that insured 
 represented her to be worth more than $3,000; 
 the parties may, if they choose, agree to an 
 excessive valuation. Hodgson v. ManTie Ins. 
 Co., 5 Cranch, 100. 
 
 2. January 3, 1802, insured wrote: "I 
 have information of her sailing, and she is 
 out this day twenty-six days." The certifi- 
 cate of her sailing showed that she was then 
 out twenty-seven days, having sailed a day be- 
 fore that represented. The court left it to the 
 jury for them lo say whether sailing Decem- 
 ber 7th instead of the 8th was material. Held, 
 the plaintiff was entitled to recover. Williams 
 ■0. Delafidd, 2 Caine, 329. 
 
 3. If a vessel be represented as out about 
 nine weeks, and she is in fact out about ten 
 weeks, and four days, the misrepresentation 
 is not material, provided, the latter period be 
 within the usual time of the voyage. Maekay 
 V. Bhinelander, 1 Johns. Ca., 4J8. 
 
 4. Stipulated: "If representations made in 
 the application are in any respect untrue, the 
 policy shall be void." Held, a request to 
 charge that if the statements, made to the 
 medical examiner were untrue, whether inten- 
 tionally or not, the policy was void, was right- 
 fully refused, for although a misstatement in 
 the application would avoid the policy, 
 whether it was or was not material, yet as to 
 mere verbal representations, their materiality, 
 in the absence of fraud, was the controlling 
 element in determining their effect, and if they 
 were immaterial they could not affect the 
 rights of the parties. Higbie v. Guardian Mut- 
 ual Life Ins. Co., 53 N. T., 603. 
 
 5. The application represented the building 
 as connected on one side with another build, 
 ing, but it was connected on both sides. Hdd, 
 no defense to the action, unless the risk was 
 
797 
 
 MISREPRESENTATIONS. 
 
 798 
 
 Onus pix>bandi — Construction. 
 
 thereby increased. Stetson o. Maaaaekusetta 
 Mutual Firelna. Co., i Mass., 330. 
 
 6. The agent who procured the insurance, 
 represented that the ship was expected to sail 
 about the 13th. Held, no misrepresentation ; 
 that it was an expression denoting only an ex- 
 pectation. JSice v. NewEngland Marine Ina. 
 Co., 4 Pick., 489. The insurers were informed 
 that the master of a vessel stated that tlie vessel 
 insured was to sail in four days after he left, 
 but it appeared that she did not sail within 
 that time. Held, no misrepresentation. Ibid. 
 
 7. Stipulated: "Reference being had to 
 the application of insured for a particular de- 
 scription which shall form a part of this pol- 
 icy." Held, erroneous statements contained 
 in the application could not defeat the right of 
 insured to recover, if he made a fair and 
 honest statement to the agent of insurer of all 
 that was required, tor the statements in the ap- 
 plication were not warrauties, but representa- 
 tions merely. Columbia Ina. Co. o. Cooper, 50 
 Penn. St., 331. 
 
 8. Insured represented in their application, 
 dated September 18, 1869, that their lease had 
 one year to run from March 1, 1870. Held, if 
 insured believed and fairly represented, but 
 were mistaken as to the time the lease had to 
 run, it would not defeat the action, for it was 
 a representation merely, and not a warranty, 
 but if the representation were fraudulent, that 
 would defeat recovery. Imperial Fire Ina. 
 Co. o. Mwraj/, 73 Penn. St., 13. 
 
 9. On ship, for one year from March 14, 
 1866, at noon, lost or not lost. In the letter 
 which inclosed this application the insurer's 
 agent, a part owner of the ship, wrote : " She 
 was at Gibraltnr on that date," meaning at the 
 commencement of the policy. Held, it was 
 an immaterial representation, because the ter- 
 mini of the risk are the day and hour when 
 the insurance commences and when it termi- 
 nates (citing Manly e. United Marine and Fire 
 Ins. Co., 9 Mass., 85 ; Martin c. Fishing Ins. 
 Co., 20 Pick., 389). Vigoreaux v. Lime Sock 
 Ina. Co., 59 Me., 457. 
 
 10. If the facts disclosed in the evidence 
 show that untrue statements made by insured 
 did not induce insurer to take the risk, and 
 that insurer was not deceived by the state- 
 ments, then they were not material. Common- 
 vealtk Ina. Co. e. Monninger, 18 Ind., 352. 
 
 11. The answer averred that the plaintiff 
 falsely and fi-audulently represented that the I 
 
 value of the property insured was $2,300, 
 while it was only of the value of |900. Tlie 
 policy expressly provided that insurer should 
 be liable only for tlie cash value at tlie time 
 of the loss. Held, a demurrer to the answer 
 was properly sustained, because a representa- 
 tion as to value is immaterial if the policy is 
 not a valued policy (citing Harris v. Eagle 
 Fire Ins. Co., 5 Johns., 368; Cox v. ^tna Ins. 
 Co., 29 Ind., 586). Aurora Fire Ina. Go. v. 
 Johnaon, 46 Ind., 315. 
 
 12. The broker stated to the underwriter 
 that she was either near or at Messina, on her 
 homeward voyage. Held, the statement of a 
 conclusion, and could not affect the rights of 
 insured. Brine v. Featherntone, 4 Taunt., 869. 
 
 1 3. The owner's agent represented that she 
 would cariy as much rock salt as would put 
 her in ballast trim. She sailed deeply Liden 
 with it. Held, it was a question for the jury 
 whether the misrepresentation was or not ma- 
 terial. Flinn v. Headlam, 9 B. & C, 698 ; 7 L. 
 J. K. B., 307. 
 
 14. The first underwriter refused to insure, 
 because he was told she would take a cargo 
 of rock salt. The broker made further inqui- 
 ries, and stated she would take only fifty or 
 sixty tons of it, to put her in light ballast 
 trim. She sailed the day after the policy was 
 made with 160 tons of rock salt, a full and 
 very heavy cargo, and was lost Held, the in- 
 surer was liable unless there was a fraudulent 
 misrepresentation as to the cargo she was to 
 cai-ry ; that misrepresentation, without fraud, 
 would not be enough to prevent recovery, be- 
 cause the contract was in writing, and could 
 not be varied by parol ; that any defense turn- 
 ing upon the mere fact of misrepresentation, 
 without fraud, practiced to induce the defend- 
 ant to make the policy, could not avail. Flinn 
 V. Tobin, Moo. & M., 367. 
 
 III. Onus pkobandi. 
 
 If the insurer defends upon tlie ground that 
 certain representations were untrue, he must 
 show that they were untrue in a material mat- 
 ter, or that tliey were fraudulent. Cushman v. 
 United Statea Life Ina. Co., 4 Hun. (N. T.), 783. 
 
 IV. CONSTKUCTION. 
 
 1. Stipulated: "If any person shall cause 
 the same to be described otherwise than as 
 
 899 
 
799 
 
 MISREPRESENTATIONS. 
 
 800 
 
 Questions for the jury. 
 
 they really are, so that the same shall be 
 charged at a lower premium than would other- 
 wise be demanded, such insurance shall be of 
 no force or effect." Held, an untrue descrip- 
 tion did not avoid the policy, unless it had 
 the effect to reduce the premium, which was a 
 question of fact for the jury. Colwmbian Ins. 
 Co. «. Lawrence, 2 Pet., 25. 
 
 2. In the application, these questions were 
 asked : Is your health good, and as far as you 
 know, free from any 83'mptoms of disease? 
 Are your habits uniformly strictly sober and 
 temperate ? To these he answered " yes." AU 
 the statements in the application were war- 
 ranted to be true. Held, the questions were to 
 be taken to mean what the same words usu- 
 ally and commonly mean; that if bis health 
 was not good, or if he knew of any symptom 
 of disease which he did not disclose, no recov- 
 ery could be had on the policy; but if the 
 company, or its agent who took the risk, knew 
 that a few days before it was taken he had a 
 temporary illness, which was over at the time, 
 and was disregarded by the agent as not with- 
 in the purview of the question, that would not 
 affect the right to recover. Sieick v. Home Life 
 Ins. Co., 2 Dil. Cir. C, 160. 
 
 3. On goods in store, more particularly de- 
 described in application and survey furnished 
 by himself, in which was stated: "Thick 
 stone partitions running lengthwise through 
 the building to the roof." Held, although the 
 stone partition was not built higher than the 
 garret floor, the policy was valid unless the 
 failure to continue it to the roof increased 
 the risk, and of that the jury were judges, 
 for the matter stated in the application was 
 not warranted. Farmers Insurance and Loan 
 Co. V. Snyder, 16 Wend., 481 ; affirming s. c, 
 13 id., 92. 
 
 4. Insured stipulated that the answers to 
 the questions propounded in the application, 
 should be the basis of the contract; that any 
 willfully untrue or fraudulent answers, or any 
 suppression of facts in regard to the party's 
 health, should render the policy void ; and the 
 policy recited, that it was made in considera- 
 tion of the representations made in the appli- 
 cation, and of the premium paid. Held, the 
 liability of the defendant depended entirely cm 
 the good faith of the insured in respect to the 
 representations. If the answers were honestly 
 made, and there was no willful and fraudu- 
 lent suppression of facts in regard to the par- 
 
 400 
 
 ty's health, the company was liable, although 
 at the time of making the insurance, the party 
 had an organic disease which was made man- 
 ifest by a post mortem examination. Scliaible 
 V. Washington Life Ins. Co., 9 Phil., 136. 
 
 V. Questions toe the jitet. 
 
 1. E!. mortgaged certain premises, and there 
 was a decree of foreclosure ; but it was possi- 
 ble that K. bad the righi to come in and have 
 the decree opened. C. had judgment against 
 K., and execution was issued and levied upon 
 the property, under which it was sold and 
 bought in by C, who insured it and stated to 
 insurers' agent that he acquired his interest in 
 it under a judgment and execution. He was 
 not asked about any prior mortgage upon the 
 property. Held, it was proper to leave the 
 question to the jury, for them to And whether 
 there was any intentional misrepresentation 
 as to the interest of the insured at the time of 
 the insurance was effected. Curtis ®. Home 
 Ins. Co., I Biss., 485. 
 
 2. The plaintiff, in her application, stated 
 that neither his parents, brothers nor sisters 
 had been afflicted with scrofulous disease ; but 
 to another question propounded as to what 
 disease his mother, brothers and sisters died 
 of, she answered: mother died of scrofula, 
 one of his brothers died of an unknown dis^ 
 e»se, and one of his sisters died of disease of 
 the blood. She was not asked if her husband 
 ever had scrofula. He stated to the compa' 
 ny's physician in response to certain printed 
 inquiries which were part of the application, 
 that his mother died of scrofula; and in re- 
 sponse to another inquiry, he said that he 
 never had any of that disease that he was aware 
 of. Stipulated: "The answers to the inter- 
 rogatories were true; that he was in good 
 health and usually enjoyed good health, and 
 that no fact material to his health had been 
 concealed." He died nine months after the 
 date of the policy, from an abscess caused by 
 scrofula. Prior to making the policy, he 
 was lame from a sore in the groin, for several 
 weeks. It healed, but frequently recurred. 
 Held, that taking all the statements togetlier, 
 they were not untrue, in such a sense as would 
 avoid the policy; that it was a question for 
 the jury to determine, whether the true condi- 
 tion or health of the insured had been mis- 
 represented by himself and wife. Swift v. 
 
801 MONEY HAD AND RECEIVED - MORTGAGOR AND MORTGAGEE. 802 
 
 Miscellaneous. 
 
 Maisaehutetts Mutual Life Ins. Go., 3 N. Y. S. 
 C.,803. 
 
 3. A misrepresentation as to the title of the 
 property insured does not necessarily avoid 
 the policy, for every misrepresentation is to 
 he tested by its materiality, and that is a ques- 
 tion for the jury. Bellatty v. Thomaston Ins. 
 Co., 61 Me., 414. 
 
 4. Whether a given statement^ admitted to 
 he false, is material or not, is in general a 
 question of fact, and should he left to the jury. 
 Schrosdw V. Stock atid Mut. Ins. Co., 46 Mo., 
 174. 
 
 YI. Genekally. 
 
 1. The false statement or suppression of 
 
 facts which will release the insurer must be 
 of so material a character that if not made on 
 the one hand, or if made on the other, would 
 probably have induced the insurer to reject 
 the risk or to materially modify his contract. 
 BoUovmum c. Life Ins. Co., 1 Woods, 674. 
 
 2. Fraud not presumed. Upon tlie ques- 
 tion whether there has been a frudulent mis- 
 representation : Held, the law will not pre- 
 sume fraud, nor will a contract be set aside on 
 tliat ground, unless the fraud be fully and satis- 
 factorily proved ; and the burden of proof lies 
 on the person who holds the afSrmative. Pine 
 D. Vanuxem, 3 Yeates, 30. 
 
 3. Untme statements. The policy re- 
 ferred to the application, and stipulated that 
 it should be part of the contract. Held, it 
 must be treated as though it were incorpo- 
 rated into the policy itself, and whether an 
 untruthful statement in the application was 
 fatal or not, must depend on whether the un- 
 tme matter was material to the risk. Battles 
 «. Tork County Mutual Fire Ins. Co., 41 Me., 
 208. 
 
 4. Frandnlent intent. The court instructed 
 the jury that a misrepresentation, however 
 material, could not affect the iwlicy unless 
 made with a fraudulent intent Held, error. 
 Continental Ins. Co. o. Kasey, 25 Grattan, 
 268. 
 
 5. Test of materiality. Whether the mat- 
 ter not disclosed was material, depends upon 
 whether the insurer would have charged a 
 higher premium had he been informed as to 
 that matter. Quin «. National Ats. Co., 1 
 Jones & Carey, 316. 
 
 26 
 
 MONEY' HAD AND RECEIVED. 
 
 1. Plaintiff's custom was to allow the 
 broker to deliver the policies and collect the 
 premiums. Held, he was not liable for pre- 
 miums he had failed to collect. Monitor Mu- 
 tual Fire Ins. Go. v. Young, 111 Mass., 537. 
 
 2. A., being interested in certain property, 
 insured it in the owner's name. Loss having 
 occurred, insurers paid the claim to A. Held, 
 he must pay it over to the owner, nor could A. 
 be allowed to prove that he intended the pol- 
 icy to protect his own interest only. Looney 
 V. Looney, 116 Mass., 283. 
 
 3. The broker, having received the premium, 
 refused to pay it over to insurer because the 
 contract to insure was illegal — the prerequi- 
 sites of the statute had not been complied with. 
 Held, he must pay it over. Tenant v. Elliott, 
 1 B. & P., 3. 
 
 MOORED IN GOOD SAFETY. 
 
 (See Uktil Mookbd m Good Satett.) 
 
 MORTGAGOR AND MORTGAGEE. 
 
 1. The mortgagor covenanted to keep the 
 premises insured for the benefit of the mort-, 
 gagee. Hdd, the mortgage being recorded, 
 the covenant drew to it the contract of insur- 
 ance as soon as affected, it ran with the land, 
 was a notice to creditors, and no subsequent 
 assignment could affect the rights of the mort- 
 gagee, and an assignment of the policy of in- 
 surance was therefore unnecessary. In re 
 Sands Ale Brewing Co., 3 Biss., 175. 
 
 2. R was personally liable for the payment 
 of the mortgage, amounting to $5,000; but 
 there was no agreement, expressed or implied, 
 that ho would cause the premises to he in- 
 sured for the protection of the debt. Held, the 
 mortgagee had no better claim to the money 
 due by the insurance company than any other 
 creditors of R. Can-ter v. Rockett, 8 Paige Ch., 
 437. 
 
 3. A mortgagee who effects insurance upon 
 the mortgaged premises cannot charge the 
 cost of it against the mortgagor. Saunders e. 
 Frost, 5 Pick., 259. 
 
 4. The mortgage required the mortgagor to 
 keep the buildings insured against fire for a 
 
 ^1 
 
803 
 
 MUTUAL rNSUBERS. 
 
 804 
 
 Miscellaneoas. 
 
 snm not less than $3,500, for the benefit of the 
 mortgagee. The mortgagor failed to insure, 
 and the mortgagee paid the premiums and 
 charged them against the mortgagor. Held, 
 a lawful agreement, and that the mortgagee 
 •was entitled to credit for the premiums paid. 
 Fowlep V. Palmer, 5 Gray, 549. 
 
 5. The mortgagee, at the request of the mort- 
 gagor, effected insurance upon the premises 
 and paid the premium. ITeld, an additional 
 charge upon tlie premises and similar to 
 the original debt. Mix v. Hotehki»s, 14 Conn., 
 31. 
 
 6. In an action for possession against a 
 mortgagor, he is estopped to deny his title to 
 the mortgaged premises. Concord Union Mu- 
 tual Fire Ins. Go. v. Woodbury, 45 Me., 447. 
 
 7. Policy insuring a mortgagee. Bdd, he 
 could not recover beyond the extent of his in- 
 terest. Smith V. Oolwabia Ins. Co., 17 Penn. 
 St., 253. 
 
 8. The charter made the members liable to 
 provide a fund to meet losses. After the bus- 
 iness had been conducted for some time, the 
 directors resolved to raise a guaranty capi- 
 tal of $150,000, to be put up in money or 
 bonds, secured by mortgage, liable to assess- 
 ment pro rata, afler all other available means 
 should be exhausted, to make good losses. 
 Each contributor was to receive, from the 
 earnings of the company, six per cent on the 
 amount of his bond. The defendant gave a 
 mortgage as collateral to his bond, and the 
 corporation became insolvent. Held, the 
 mortgage was illegal and void, because the 
 company had no power to enter into the con- 
 tract. Trenton Muiital Life and Fire In» Co. 
 v. McEMway, 13 N. J. Eq., 133. 
 
 9. A. became surety for B., who executed a 
 mortgage and procured insurance upon cer- 
 tain property to protect A. B. sold the prop- 
 erty subject to the mortgage. The purchaser 
 surrendered the policy to insurer and pro- 
 cured another in his own name. Held, the in- 
 surance money must be applied to satisfy the 
 demands of the mortgagee. Miller v. Aldric/i, 
 31 Mich., 408. 
 
 10. If the mortgagee insures the property 
 mortgaged and the premium was paid by the 
 mortgagor, then the policy and its benefits are 
 in equity the property of the mortgagor. Nor- 
 wich Fire Ing. Co. v. Boomer, 52 III., 442. 
 
 1 1. A mortgagee, who is not by express con- 
 tract with the mortgagor entitled to insure 
 
 403 
 
 against fire at the mortgagor's exjiense, nor to 
 require the mortgagor to insure, cannot add to 
 the mortgage debt as a charge upon the prop- 
 erty, tlie premiums by him paid for insurance 
 upon the property. Dobion v. Land, 8 Hare, 
 216; 4 De G. & S., 575. 
 
 Vi. Ship owner employed a broker to pro- 
 cure insurance upon the ship. Subsequently 
 the mortgagees of the ship were Inserted in 
 the policy. Held, the mortgagees were not 
 liable for the premium. Moxbwrgh v. Thom- 
 son, 23 C. C. 8., 1187. 
 
 MUTUAL INSURERS. 
 
 1. Increase of premium. The court below 
 adjudged that the contract of insurance being 
 complete between the parties, insurers had not 
 the right to increase the premium. Held, iu 
 general, the position would be correct; but 
 the defendants were bound by the by-laws of 
 the society, which conferred that ri^t, asd 
 therefore the judgment was reversed. Mutual 
 Ass. 8oe. «. Kom, 7 Cranch, 396. 
 
 2. Contract with member of corporation. 
 A contract made by a mutual company with 
 one of its members is binding upon both par- 
 ties. New England Mutual Fire Ins. Co. e. 
 Butler, 34 Me., 451. 
 
 3. Assessments. Members of a mutual in- 
 surance company must pay all lawful assess- 
 ments made during the term for which they 
 are insured, unless there be something in the 
 policy, charter, by-laws or premium note, 
 which relieves them. Nemo Hampshire Mu- 
 tual Fire Ins. Co. v. Band, 24 N. H., 428. 
 
 4. By-law not binding. A. became a mem- 
 ber of a mutual fire insurance company, and 
 subsequently a by-law was created in conflict 
 with the charter. HM, not binding upon A., 
 unless he assented to it Great Fulls Mutual 
 Fire Ins. Co. v. Harney, 45 N. H., 293. 
 
 5. Deposit notes. Before resorting to the 
 further liability imposed by law upon the pol- 
 icy holders, the deposit notes must be ex- 
 hausted. Commonwealth v. Monitor Mutual Fire 
 Ins. Co., 112 Mass., 150. 
 
 6. Liability of members. Though the cor- 
 poration may defend against claims for losses, 
 it does not follow that the holders of the poli- 
 cies are released from their liability as mem- 
 bers. So long as the policy remains uncan- 
 
805 
 
 NEGLIGENCE— NEUTRAL PROPERTY. 
 
 806 
 
 What satisfies the ■warranty. 
 
 celed, the holder cannot take advantage of a 
 want of insurable interest, nor of a misde- 
 scription, nor of the mode of occupation, nor 
 of other insurance, for the purpose of show- 
 ing that the policy was void and that there is 
 no liability for assessments. Gommonfeealth «. 
 Massachusetts Jfut. Ins. Go., 112 Kass., 116; 
 Cwnings v. Sawyer, 117 id., 80. 
 
 7. What creates membership. Policy to 
 a guardian. Reld, it was a personal contract 
 which he could transfer. This authority to 
 another to transfer it need not be in writing, 
 and being transferred with the assent of the 
 company, the transferee became a member of 
 the corporation and liable to assessments from 
 that date until he should cease to be a mem- 
 ber. Ottmings «. Hildreth, 117, Mass., 309. 
 
 8. — When a policy is effected in a mutual 
 insurance company, the insured are ipso facto 
 members of the corporation, and bound by 
 its constitution and by-laws. Satterthwaite e. 
 Mutual Beneficial Ins. Ass., 14 Penn. St., 893. 
 
 9. Who is not a member. The insurer, a 
 mutual company, accepted cash for the pre- 
 mium. Seld, insured did not become a mem- 
 ber of the company; his duties to it were 
 notvother than thosp required of him by a 
 stock company. Illinois Fire Ins. Co. v. Stan- 
 ton, 57 111., 354. 
 
 10. Premiom notes. It is competent for 
 a mutual fire insurance company, organized 
 under the laws of this state, to provide in its 
 articles of association or by its by-laws, that 
 all premium notes shall be paid in such in- 
 stalments as shall be ordered by the directors 
 after notice, and if not so paid, the entire note 
 shall become due and payable. Oerman Mutual 
 Fire Ins. Co. v. Franek, 22 Ind., 364. 
 
 NEGLIGENCE. 
 
 (See Fboxoiatx Cavsb ot Loss.) 
 
 NEUTRAL PROPERTY. 
 
 I. What satisfies thb wakbantt. 
 
 II. DOES HOT SATISFY THB WABRAIITT. 
 
 III. Gekkrallt. 
 
 I. "What satisfies the waeeanty. 
 
 1. B., a Spanish subject, was inlerested in 
 the cargo. It was insured for L. and G. 
 " Warranted American property." L. and G. 
 were Americans. Held, insured warranted 
 only; that the interest insured was neutral. 
 Livingston v. MaryJ4ind Ins. Co.. 6 Cranch, 274. 
 
 2. A passport, from one government to a 
 ship of another, to protect it from the cruisers 
 of the former, does not stamp the ship with 
 the national character of the government who 
 grants the protection, and is no violation of 
 the laws regulating neutrals. And if in- 
 evitable necessity compels her to touch at an 
 inhibited port, and unloading her cargo, and 
 a disposal of it there, is the effect of the same 
 necessity, it is no violation of the law re- 
 straining citizens from aiding the French 
 carrying trade. And, under the same neces- 
 sity, she may purchase and load with the pro- 
 duce of that port. HaUet v. Jenks, 1 Caine's 
 Cas., 43. 
 
 3. Where a subject of a belligerent state 
 etaigraXea, flagrante beUo, and becomes natural- 
 ized, the naturalization will support a war- 
 ranty of neutral property. Duguet v. Shine- 
 lander, 2 Johns. C, 476; 1 Caine's Cas., 26; 
 reversing s. c, 1 Johns. C, 360. 
 
 4. Where the domicile of tie insured is es- 
 tablished in the United St«tes, without any 
 fraudulent motive, but for fair purposes of 
 commerce, the insured is to be considered an 
 American citizen in respect to tliat trade ; and 
 property by him owned is American, notwith- 
 standing he is a foreigner not naturalized. 
 Johnston V. Ludlow, 2 Johns. C, 481. 
 
 5. Sailing for a port understood to be block- 
 aded is not a breach of neutrality, and does 
 not affect the warranty. Vos v. United Ins. 
 Co., 2 Johns. Ch., 469. 
 
 6. On cargo, warranted American property. 
 The consignees, residents in France, were to 
 pay for the goods and eight per cent, on the 
 amount of the invoice, to cover commissions, 
 war risk and usual sea risk. The goods were 
 charged to consignees in the books of the in- 
 sured. The consignees were to accept bills at 
 sixty days, after the vessel's arrival at the port 
 of destination. Held, the consignees were not 
 entitled to the goods until they had performed 
 the precedent conditions as to the payment 
 stipulated ; that if the goods never arrived at 
 the point of destination, the property would 
 
 4(^ 
 
807 
 
 NEUTRAL PROPERTY. 
 
 SOS 
 
 What satisfles the warranty. 
 
 have continued in the insured ; that the goods 
 were in law the property of the consignors, and 
 therefore American property. Seld, also, the 
 agreement under which the goods were shipped 
 did not raise a presumption that the agreement 
 was fraudulent and collusive, and made for 
 the purpose of covering the property of an 
 enemy. JJudlow v. Sowne, 1 Johns., 2. 
 
 7. Open policy on goods on American brig 
 firom New York to Amsterdam. " Warranted 
 American property, not to abandon in case of 
 capture or detention in loss than four months 
 after advice, or till after condemnatiim, and the 
 property is not imported by the exporters." A 
 certificate of origin, accompanying the goods, 
 stated that they were purchased and exported 
 from Montevideo, prior to its capture by the 
 English ; the certificate of importation stated 
 the goods were imported June 8, 1807 ; it read, 
 " and for which tlie duties have been landed ac- 
 cording to law." The clerk who made it omit- 
 ted to strike out the printed word " for " and the 
 words " the duties." If those had been erased, 
 tlie remainder would have shown that the 
 cargo had been landed according to law. She 
 was captured and condemned as the property 
 of the enemies of Great Britain. Held, the 
 certificate, though not strictly true, did not 
 create a breach of the warranty, there being 
 no evidence mala fide against insured. Le Boy 
 «. United Ins. Co., 7 Johns., 344. 
 
 8. " On the good American ship called The 
 Bodman." Seld, she was warranted Ameri- 
 can, and proof that she was owned by an 
 American citizen, and had all the papers re- 
 quired by an American vessel except her reg- 
 ister, but that she sailed with a sea letter, 
 satisfied the warranty. Barker v. Phcenix Ins. 
 Co., 8 Johns., 307. 
 
 9. On cargo from New York to Havana, 
 thence to Laguira, or Porto Cabello : " War- 
 ranted American." Insured, a native Ameri- 
 can, a merchant of New York, agreed to sell 
 and deliver the property to one Levi, at either 
 of the places mentioned, to be paid for on de- 
 livery; the price of the goods to be costs and 
 charges, including the insurance, and five per 
 cent., together with a dollar per barrel freight 
 if delivered at Havana, or two dollars and a 
 half if delivered at Laguira or Porto Cabello. 
 Levi intended the property to supply the gov- 
 ernment at either of the places named, but 
 that fact was not communicated to insured. 
 Held, the risk of delivery rested on the ven- 
 
 404 
 
 dor — the insured; that the purchase was in- 
 complete until delivery at one of the places 
 appointed ; that the vendor had the right to 
 insure, and this right did not cease when she 
 reported at Havana and received orders to pro- 
 ceed to Laguira; that the consignees at Ha- 
 vana, by altering the bill of lading for Laguira, 
 did not thereby accept the goods; and that 
 the warranty meant that it was American 
 property, by the law of nations; and it was so. 
 Ve Wolf V. New York Firemenii' Ins. Co., 20 
 Johns., 314; affirmed, 2 Cow., 56. 
 
 10. "Warranted American." It was proved 
 that she was owned by citizens of the United 
 States; that she cleared from an American 
 port; a copy of her register produced (the 
 original being filed in the treasury depart- 
 ment), with a certificate by the registrar of the 
 department, under the seal of the department, 
 that he is registrar. Hdd, sufficient. Catlett 
 D. Pacific Ins. Co., 1 Wend., 561 ; affirmed, 4 
 id., 75. 
 
 1 1. A British license, on board a ship bound 
 to a neutral port, does not invalidate a policy 
 on her cargo. Hayward -o. Blake, 12 Mass., 177. 
 
 12. Rescue of a neutral ship from a bellig- 
 erent is a breach of neutrality, and will exon- 
 erate the insurer in case of loss; but it is the 
 duty of belligerents to make known their 
 character as such, and the cause for which 
 they detain neutrals ; and when they omit to 
 do so, neutrals are not bound toknowtJiem as 
 lawful belligerents ; and if the belligerent dis- 
 regards the duly imposed by the law of na- 
 tions, resistance on the part of neutrals is nut 
 only right, but a duty. M'Lellan v. Maine 
 Fire and Marine Ins. Co., 12 Mass., 346. 
 
 13. " On the good British brig." Held, not 
 a warranty that she was a British registered 
 vessel, but, that she was owned by a British 
 subject. And, proof that she was owned by a 
 Scotchman by birth, and that he navigated her 
 under a clearance and license from the custom 
 house at New Providence, satisfied the -vmr- 
 ranty, prima facie, and it was not necessary to 
 prove his domicile. Maekie v. Pleasants, 3 
 Binn., 368. 
 
 14. "Warranted American bottom." Held, 
 it was satisfied if she was owned by a citizen 
 of the United States; not necessary to prove 
 she was American built, or registered Ameri- 
 can. Grifflth V. Ins. Co. of North America, 5 
 Binn., 464. 
 
 15. " Warranted an American bottom; that 
 
809 
 
 NEUTRAL PROPERTY. 
 
 810 
 
 What does not satisfy the warranty. 
 
 she carries -with her the documents necessary 
 to prove her such." She was sold by the in- 
 sured, to be delivered on her arrival in Lon- 
 don, part of the purchase money paid, and 
 for the balance, promissory notes were deliv. 
 ered, payable in nine, twelve and fifteen 
 months, which were duly paid subsequently 
 to the loss. Insured fitted the vessel for sea, 
 eleai-ed her at the custom house, and gave the 
 master sailing orders. She was captured and 
 condemned. Held, the purchase and sale were 
 not incompatible with law, unless it was en- 
 tered into to lend undue aid to the snhject of a 
 belligerent power. Mitrgatroj/d e. Crawford, 
 2 Teatcs, 420; 3 Dall., 491. 
 
 16. The ship was not stated to be of any 
 }varticalar country, but in the letter directing 
 insurance, she was described as carrying the 
 " Kniphausen flag," and in the broker's in- 
 structions, shown to the insurers, she was 
 called a Eniphausen vessel. Held, it was a 
 representation that she was a Kniphausen ves- 
 sel, and consequently neutral property, which 
 was satisfied if she was documented and navi- 
 gated according to the laws of that slate. Von 
 Tunglen e. Bu BoU, 2 Camp., 151. 
 
 1 7. " Warranted a neutral ship and neutral 
 property." Both ship and cargo were Dutch 
 and neutral when she sailed, but hostilities 
 were declared between England and Holland 
 nine days after, and she was captured. Held, 
 the warranty was satisfied. Eden e. Parki- 
 son, 3 Doug., 732. 
 
 18. A policy on oil, the property of an 
 American, shipped on board an American 
 ship, from New York to Havre de Grace. She 
 was captured, taken into Bristol, where the 
 property insured, with the rest of the cargo 
 and the ship, were restored after an expensive 
 litigation, but the master refused to reload the 
 oil, and it was left at Bristol. After she sailed 
 from New York, the British government de- 
 clared the port of Havre in a state of blockade. 
 Held, the American was at liberty to pursue 
 his commerce with France, and to be the ear- 
 ner of goods for French subjects, at the risk 
 of having his voyage interrupted by seizure, 
 or carrying the ship into British ports, for the 
 purposes of search ; that the mere act of carry- 
 ing such goods on his vessel constituted no 
 violation of neutrality. Barker «. Blakee, 9 
 East, 283. 
 
 19. She was Portuguese, and warranted neu- 
 tral. She carried an English supercargo, con- 
 
 trary to a French oi-dinance, but neither party 
 knew of tlie ordinance. Held, the ordinance 
 was arbitrary, and contrary to the law of niu 
 tious, and therefore the insurer was liable for 
 her capture. Maynev. Walter, 3 Doug., 79. 
 
 20. "'On goods from London to Alusterdam, 
 thence to St Eustatia, in any neutral ship." 
 At the time the ship sailed she was neutral 
 property, but during her voyage, hostilities 
 commenced between Great Britain and Hol- 
 land. She was captured. Insured were Amer- 
 icans, one of them resident at Philadelphia. 
 Held, it was not affected by the statute, 16 Geo. 
 Ill, oh. 5, smd insurer was liable. Tyson v. 
 Gcumey. 3 Term, 477. 
 
 21. " Warranted American." She was cap- 
 tured and condemned, on the ground that she 
 belonged to the enemies of the French Repub- 
 lic. Held, not evidence that she was not 
 American. Chrittie o. Secretan, 8 Term, 192. 
 
 II. What does not satisfy the wak- 
 
 EANTT. 
 
 1. She sailed in April, taking Spanish as 
 well as American papers. She was captured 
 by a French privateer, retaken by a British 
 and carried into Nassau, libeled and con- 
 demned as the property of French citizens. 
 She was warranted American property. Held, 
 evidence that the warranty was broken. Cal- 
 breath v. Gracy, 1 Wash. C. C, 219. 
 
 2. Warranted American property. In con- 
 sequence of large repairs needed, she was hy- 
 pothecated to a Dutch merchant, who took 
 passage in her. He died on the voyage. She 
 was captured. Held, the hypothecation falsi- 
 fied tlie warranty, and the insured could not 
 recover. Schwartz v. Insurance Company of 
 North America, 3 Wash. C. C, 117. 
 
 3. On cargo, $2,326; on freight, $1,860; on 
 profits, 15,814; freight valued at $30,000 ; prof- 
 its at $25,000 ; warranted American property, 
 from port or ports of lading in Europe, to, at 
 and from any port or ports, pi ice or ptac< s, 
 for a term of eighteen months: Part of tlie 
 goods belonged to Spanish passengers. Held, 
 the warranty extended to all the cargo, and 
 therefore, the insurers were discharged. Bay- 
 ard r. Massachusetts Fire and Marir^ Ins. Co., 
 4 Mason, 256. 
 
 4. A warranty that property is neutral im- 
 ports not merely that the property is neutral, 
 but that on the voyage it shall be accompanied 
 
 405 
 
811 
 
 NEUTRAL PROPERTY. 
 
 812 
 
 What does not satisfy the warranty. 
 
 by all the accustomed documents necessary 
 to insure it respect as such within the law 
 of nations. Blagge b. New York Ins. Co., 1 
 €aines, 549. And when the insured, by means 
 of false papers or by any improper conduct, in- 
 vests the property with a double character, 
 neutral and belligerent, it is thereby subjected 
 to a risk tlie insured did not take, and releases 
 him. Ibid. 
 
 5. If the property is waiTanted neutral, an 
 assignment of part of it after capture to a 
 belligerent is a breach of the wai-ranty. Goold 
 V. United Int. Co., 3 Caines, 73. 
 
 6. On goods from New York to Ports in 
 Cuba, " Wan-anted American property." They 
 belonged to two native merchants in New 
 York, and a native American, resident of 
 Havana, the American consul. They werv 
 Joint owners in the ship and partners in the 
 cargo. Held, the American residing at Hav- 
 ana, carrying on trade as a merchant there, 
 must be considered as domiciled in that coun- 
 try ; that his property was subject to capture 
 and condemnation by a belligerent, and there- 
 fore the warranty was not verified, and that 
 the insurers were not liable. Arnold v. United 
 Ins. Co., 1 Johns. C, 363. 
 
 7. Where the property is warranted Ameri- 
 can, and a vice court of admiralty condemns 
 it as belonging to subjects of the king of 
 Spain, the warranty is broken. Vandenheuvel 
 V. United Inn. Co., 2 Johns. C, 127. 
 
 8. On ship "warranted American proper- 
 ty," dated November 1, 1796, at which time 
 she was owned by a native American citizen ; 
 April 29, 1797, he sold her to a British sub- 
 ject, who was naturalized April 6, 1797. She 
 sailed May 3d, and was captured on the 25th. 
 Held, the purchaser was to be considered as 
 changing his domicile and emigrating, 
 flagrante bello, hence the warranty was broken. 
 Jackson v. Nevo Toi-k Ins. Co., 2 Johns. C, 
 192; overruled, id., 476. 
 
 9. " Warranted American property." Held, 
 the necessary documents evincing that char- 
 acter and insuring respect to it as such, within 
 the law of nations, must accompany her, or 
 the warranty is not satisfied. Coolidge v. Ntw 
 Torkl'iremen's Ins. Co., 14 Johns., 308. 
 
 10. " On cargo warranted Swedish proper- 
 ty, from New Haven to St. Bartholomew." 
 She was never heard of, and a year and day 
 having elapsed, suit was brought for a total 
 loss. One of the insured resided in America 
 
 406 
 
 from 1811. Held, his residence for such a 
 length of time raised the presumption that he 
 intended to reside there permanently, and that 
 the warranty was therefore not verified; that 
 the property would have been liable to bellig- 
 erent capture and condemuatiou, hence in- 
 surer was released, hlbers v. United Ins. Co., 16 
 Johns., 139. 
 
 11. "On cargo. Charleston to Cadiz, war- 
 ranted American property, to be proved if re- 
 quired in the city of Philadelphia and not 
 elsewhere." She sailed June 8th, at which 
 time the blockade of Cadiz was not known. 
 While steering for, and no great distance from 
 Cadiz, she was brought to, the master taken 
 on board the Hector, thence to the admiral's 
 ship. A part of the crew were taken out and 
 an o£Scer and eight men put on board, with 
 orders to stay by the fleet Ten days after- 
 wards, by indorsement on her papers, she was 
 warned not to enter Cadiz or St Lucas, but 
 permitted to go to any other port. On the 
 day after, the captain was again taken before 
 the admiral, who said to him, "We have 
 thoughts of setting you at liberty; if we do, 
 what course will you steer ; or what port wiU 
 you proceed for?" The master replied, "In 
 case I receive no new orders or new instruc- 
 tions, I shall follow my old ones." The ad- 
 miral replied, "I suppose that will be for 
 Cadiz^ " to which the master rejoined, "Cer- 
 tainly, unless I have new orders." She was 
 carried into port and condemned. Hdd, that 
 the sentence of condemnation was not con- 
 clusive ; that the insured was entitled to satis- 
 fy the warranty by proof satisfactory to a 
 court and jury in the city of Philadelphia, 
 and not elsewhere; that the property was 
 American, and that the conduct of the master 
 lathe bay of Cadiz was not such as to throw 
 off that character and forfeit the protection 
 due American property. Calhoun n. Insur- 
 ance Co. of Pennsylvania, 1 Binn., 293; WH- 
 eoekt V. Union Ins. Co., 3 id., 574. 
 
 12. Vessel and goods were warranted 
 American property- Loss by capture. Heid, 
 the whole property on board the ship was 
 liable to condemnation by the law of nations, 
 if the general agents of the ship and cargo at- 
 tempted to deceive one of the belligerent 
 powers, by covering the property of an enemy. 
 Phoenix Ins. Co. t. Pratt, 3 Binn., 308. 
 
 13. H. and C, owners of ship, were in- 
 formed by the master that he would load with 
 
813 
 
 NEUTRAL PROPERTY. 
 
 814 
 
 Grenerally. 
 
 salt for their account. They insured it, and 
 warranted it American property. The agents 
 of tlie ship (British sul^ects) purchased the 
 cargo, but finding that fbnds m hand were 
 not sufiScient to pay therefor, took for it a bill 
 of lading in the names of C. and R., directing 
 them to deliver tiie cargo to H. and C. upon 
 payment of a balance named; and if that 
 should not be paid, to sell the cargo for ship- 
 pers' account, paying to H. and C. a balance 
 named. The shippers also insured the cargo. 
 Held, the property was not in H. and C, and 
 that it was not "American." Warder v. Hor- 
 ton, 4. Binn., 539. 
 
 14. "On ship with lib'>Jty to touch and 
 trade, etc., warranted American property." 
 In the order for insurance it was stated, she 
 sailed under a sea letter or certificate, and that 
 her out cargo was wholly or partly contraband 
 of war. Held, the warranty was not satisfied 
 if the property was not neutral for all pur- 
 poses; that she must be navigated according 
 to the law of nations, and must be furnished 
 with every document proper to evince her 
 neutral character; that papers anti-neutral 
 must not be on board to compromit her neu- 
 trality; that the insured and their agents must 
 do nothing in violation of the rules laid down 
 by nations for the conduct of neutrals. 
 Schieartz v. Inturajice Co. of North America, 6 
 Binn., 378; Ludlow o. Union Ins. Co., 3 S. & 
 R., 119. 
 
 15. The insured warranted the property 
 American. She was captured. Held, the war- 
 ranty was falsified if papers were concealed 
 by insured on board of the vessel which 
 caused the capture. Carrere o. Union In*. 
 Co., 3 H. & J., 324. 
 
 16. Warranted neutral. She foundered at 
 sea, but the evidence showed that she was not 
 the property of neutrals. Held, insurers 
 were discharged. Woolmer e. Muiltnan, 1 W. 
 Bl., 427. 
 
 17. "Warranted American property." The 
 treaty between Prance and America required 
 American vessels to have sea letters or pass- 
 ports expressing name, property, tonnage, etc., 
 of ship. She had not any such document on 
 board, but was bound from London to Guern- 
 sey, thence to the coast of Africa. There was 
 at that time war between France and England. 
 She was captured. Held, the warranty was 
 not preserved. Biek v. Parker, 7 Term, 705 ; 
 B. c, 2 Esp., 615. 
 
 18. "Warranted Danish property." She 
 was seized and carried into port by a belliger- 
 ent for the purposes of search, but the master 
 and crew rescued her, and she was condemned 
 on the ground that the master and crew, in 
 direct violation and breach of their neutrality 
 as Danish subjects, and contrary to the law 
 of nations and the faith of treaties, violently 
 seized and took possession, etc. Sdd, it was 
 a forfeiture of her neutrality, and a breach of 
 of the warranty. OarreU v. Kensington, 8 
 Term, 330. 
 
 19. The sentence of condemnation stated 
 that she was not documented, as required by 
 ti'eaty between captors and captured. Seld, 
 the condemnation negatives the warranty of 
 neutrality. Baring ®. Boyal Exchange Ass 
 Co., 5 East, 99 ; Bolton v. Oladstone, 5 id., 155, 
 
 III. Geneeallt. 
 
 1. When a vessel is described In the policy 
 as an "American ship," she is warranted 
 American. Oowi t. Low, 1 Johns. C, 341. 
 
 2. A copy of tlie ship's register, certified 
 by the collector, with proof of his hand writ- 
 ing, is not evidence that tlie ship is Amer- 
 ican, nor that she is the property of the per- 
 son named in it, unless it is authenticated by 
 the oath of a witness who has seen the orig- 
 inal. Coolidge v. New Fork Firemen's Ins. Co., 
 14 Johns., 308. 
 
 3. Under a wai-ranty of neutrality, the 
 warrantor must see that she is completely 
 documented, and that she complies in every 
 respect with the marine regulations of the 
 enemies' countries. Barsillai v. Lewis, 3 Doug., 
 126. 
 
 4. A neutral American ship, insured in 
 England, was captured and condemned in a 
 French port as prize, on the ground that she 
 was not documented according to treaty. Sdd, 
 insured could not recover, although there was 
 no warranty that the ship was American, for 
 ship owners are bound to provide proper na- 
 tional documents for their ships. Bell v. Gar- 
 stairs, 14 East, 374; 2 Camp., 543. 
 
 5. A British subject, domiciled in America, 
 effected a policy on ship, freight and goods, 
 at and from Virginia to any ports in the Bal- 
 tic. Denmark was at peace with America, 
 but at enmity with England. She was cap- 
 tured on a voyage to Elsineur, in Denmark 
 Held, the insured was entitled to recover. 
 Bell V. Heidi 1 Mau. ds Sel., 736. 
 
 407 
 
815 
 
 NEW TEIALS. 
 
 '816 
 
 What is cause for. 
 
 NEW TRIALS. 
 
 I. What is cause for. 
 
 II. NOT CATJSE FOB. 
 
 III. When the new trial must be con- 
 fined TO ONE particular QUESTION. 
 
 I. "What is cause foe. 
 
 1. "On profits, from Callao to Baltimore, 
 free of average and salvage, policy to be only 
 proof of interest required." She sailed on 
 the voyage, and was never heard of. Held, if 
 there was a material mistake in point of law, 
 prejudicial to the defendants, they were en- 
 titled to a new trial ; or if there was a failure 
 to try the cause upon its fair merits in point 
 of fact, the same result must follow. AUop v. 
 Commercial Ins. Co., 1 Sumn., 451. 
 
 2. Weight of evidence. Where the ver- 
 dict is contrary to the conclusions legally to 
 be drawn from the facts, there must be a new 
 trial ordered. Patrick v. Hallet, 3 Johns. C, 76. 
 
 3. — The court holds in this case that the 
 verdict is manifestly against the weight of 
 evidence, and that a new trial is necessary to 
 a proper determination of the rights of the 
 parties. Kinsman ®. New York Mut. Ins. Co., 
 5 Bos., 460. 
 
 4. — The jury found specially that the agent 
 had authority, but the evidence in the opinion 
 of the supreme court was not sufficient to 
 maintain the finding. Held, the judgment 
 must be set aside. Ityan v. World Mutual Life 
 Ins. Co., 41 Conn., 168. 
 
 5. Instructions. The court instructed the 
 jury that there was no evidence upon a partic- 
 ular point ; but there was some evidence upon 
 it. Held, the case must be submitted to an- 
 other jury, notwithstanding the jury found 
 against the court's instructions. Clemming v. 
 Marine Ins. Co., 4 Whart., 59. 
 
 6. Weight of evidence. The couit will 
 not confirm a verdict where it is not warranted 
 by the law and the evidence, notwithstanding 
 it is the third verdict the same way. Bryant 
 V. GommanweaUh Ins. Co., 13 Pick., 543. 
 
 7. Excessive damages. Upon an applica- 
 tion for a new trial, it appeared that the prop- 
 erty was insured in another company, which 
 was liable for its portion of the loss. Held, a 
 new trial must be granted, unless the plaintiff 
 will remit the excess. Mechanics Fire Ins. 
 Co. V. Nichols, 16 N. J., 410. 
 
 408 
 
 8. Absence of witness. The plaintiff's 
 brother, a material witness for the plaintiff, 
 hired a material witness for the defendant to 
 absent himself from the reach of process, so 
 that he could not be summoned as a witness. 
 The defendants instituted inquiries for him, 
 but issued no summons. Hdd, the verdict and 
 judgment must be set aside. Atlantic Mutual 
 Fire Ins. Go. v. Banders, 36 N. H., 252. 
 
 9. Weight of evidence. Stipulated: "If 
 the person whose life is insured shall die by 
 reason of intemperance, from the use of intox- 
 icating liquors, it shall be void." The ev^. 
 dence was conclusive that the cause of his 
 death was an excessive use of intoxicating 
 liquor; but the jury found for the insured. 
 Held, the verdict and judgment must be set 
 aside. Miller s. Mutual HenefU Life Ins. Co., 
 34 Iowa, 232. 
 
 10. — Two juries found the same way for 
 the plaintiff for the whole amount of his claim. 
 The supreme court was of opinion that the evi- 
 dence did not sustain the finding, hence the 
 judgment was reversed. 111. S. C. Lycoming 
 Ins. Co. s. Bubin, 8 Chi. Leg. News, 150. 
 
 11. — Stipulated: "If the interest insured; 
 be any other than the entire, unconditional 
 and sole ownership of the property for the use 
 and benefit of the insured, it must be so repre- 
 sented to the company, and so expressed in the 
 written portion of this policy, otherwise this 
 company shall not be liable. The person in- 
 sured bid in the property at a decretal sale, 
 but had not paid any of the purchase money 
 at the time it was consumed. His wife had a 
 dower estate in it as the widow of her former 
 husband. In his preliminary proofs of loss, 
 he made oath that his title was exclusive and 
 unincumbered, and that no other person had 
 any interest in it. The jury found a verdict 
 for the insured. Held, it was not authorized 
 by the law and the facts; that it was contrary 
 to both, and must be set aside. Security Ins. 
 Co. V. Bronger, 6 Bush, 146. 
 
 12. Imperfect findings. Stipulated :" That 
 the insurer shall not be liable if the person 
 insured shall die in the known violation of a 
 law of this state." The finding of the court 
 below was imperfect. Held, the cause must 
 be remanded for further proceedings. Harper 
 V. PhcBnix Life Ins. Co., 18 Mo., 109. 
 
 13. Weight of evidence. On tobacco. 
 "Warranted not liable for injury to goods by 
 dampness, change of flavor, or by being 
 
817 
 
 NEW TRIALS. 
 
 818 
 
 What is not cause for. 
 
 spotted, discolored or mouldy, unless the same 
 Ije actually caused by contact with sea water." 
 She commenced leaking soon after she put to 
 sea, and before there had been any stress of 
 weather; subsequently, tempestuous weather 
 was encountered, which caused further expo- 
 sure of the cargo to sea water. The sea water 
 came in actual contact with some of the pack- 
 ages of tobacco; but evidence was given to 
 show that the tobacco had been injured by 
 age and frequent transportation; it was 
 moulded and dry, and the boxes decayed. 
 Held, the evidence did not authorize a judg- 
 ment for the insured. Leftuiiteh v. St. Loui» 
 Perpetual Ins. Co., 5 La. An., 706. 
 
 14. — Two verdicts for the plaintiff had been 
 set aside, and this, tlie third, was again given 
 for him. The court set this aside also, be- 
 cause, upon the plaintifi^s own statements, he 
 was not entitled to judgment. Hawarth v. 
 British American Ass. Go., 6 U. C. C. P., 60. 
 
 15. Mistake of witness. The court will 
 grant a new trial in order to let the defendant 
 produce a necessary document where the non- 
 production on the trial was caused by the mis- 
 take of his witness. D'Aguilar v. Tohin, 3 
 Marsh., 265. 
 
 16. Weight of evidence. On ship, tackle 
 apparel and furniture. There was contradic- 
 tory evidence as to the usage of insuring the 
 fishing tackle in express terms, and the court 
 gave a new trial to the defendant Hoshins v. 
 PickersgiU, 3 Doug., 222. 
 
 17. Difference between claim and verdict. 
 When the claim of the insured is largely in 
 excess of the damages found by the jury, the 
 court will grant a new trial. Levy v. Bailie, 
 5 M. & P., 208; 7 Bing., 349. 
 
 18. Imperfect trial. To a port of dis- 
 charge in the British West India Islands, with 
 or without letter of marque, ffeld, the case 
 must be sent back for another trial, that it may 
 be ascertained in what manner parties to con- 
 tracts containing these words, have acted upon 
 them in former instances by paying losses 
 upon them, and whether the words have as 
 yet obtained any and what definite im ort 
 Parr e. Anderson, 6 East, 202. 
 
 n. What is not cause fob. 
 
 1. Several verdicts the same way. The 
 fact alleged to have been concealed had been 
 twice submitted to a jury, who have found that 
 
 it was not material. The court now refused 
 to grant another trial. Livingston v. Delafield, 
 
 I Johns,, 522. 
 
 2. — Four different juries found verdicts the 
 same way. Held, on a motion for a new trial 
 on the last finding, that the court would not 
 interfere. TcUcot v. Commercial Ins. Co., 2 
 Johns., 467. 
 
 3. Conflicting evidence. Where the evi- 
 dence is conflicting upon a given point, the 
 court will not interfere witii the verdict, al- 
 though not perfectly satisfied that the weight 
 of evidence warranted the conclusion reached 
 by the jury. Patrick ®. Commercial Ins. Co., 
 
 II Johns., 9. 
 
 4. — A verdict was taken subject to the 
 opinion of the court. Held, the court will 
 draw in support of it every inference which a 
 jury would be justified in drawing from the 
 evidence. Williams ». Insurance Co. of North 
 America, 1 Hilt., 345. 
 
 5. Weight of evidence. Where a question, 
 entirely for the jury, is submitted and passed 
 upon by them, the verdict will not be set aside 
 as against evidence, unless it , be clearly so, 
 even though the finding be directly contrary 
 to the charge of the court. Astor v. Union Ins. 
 Go., 7 Cow., 202. 
 
 6. Incompetent evidence was admitted. 
 Held, the court will not reverse the judgment 
 if, after rejecting the incompetent evidence, 
 there is sufiicient evidence to sustain the judg- 
 ment. St. John v. American Mutual Life Ins. 
 6V, 13N.T.,31; 2 Duer, 419. 
 
 7. Several findings the same way. Al- 
 though the c<mrt is not satisfied with a vei-dict, 
 yet after two findings the same way, a new- 
 trial will not be granted. Fowler «. JEtna Ins. 
 fl-o., 7 Wend.,270. 
 
 8. Seaworthiness. The question of sea- 
 worthiness was submitted to the jury, who 
 found against the defendant Held, the court 
 would not interfere with the finding. Brioso 
 5. Padfie Mut. Ins. Co., 4 Daly, 246. 
 
 9. Evidence conflicting. In the applica- 
 tion for insurance, the applicant was asked : 
 " Have you ever had any serious illness, or 
 personal injury?" Ans. "No; fever seven 
 years ago." The examining physician asked 
 certain other questions, and from the answers 
 given, made his report; but it appeared that 
 prior, in the same year, insured had an attack 
 of sickness, after which he presented himself 
 to a physician of the Equitable Ins. Co., and 
 
 409 
 
819 
 
 NEW TRIALS. 
 
 820 
 
 What is not cause for. 
 
 was by Uim accepted for $10,000 for the bene- 
 fit of his wife; that subsequently he was ex- 
 amined by F., one of defendant's examining 
 physicians, who refused his application, but 
 afterwards one of insurers' agents procured 
 another of defendant's examining physicians 
 to examine him for this risk, who certified 
 that he was a good risk. The referee found in 
 favor of insured. HeM, the finding of the ref- 
 eree as to the character of his illness would 
 not be disturbed, inasmuch as there was abund- 
 ant medical testimony to sustain it. HogU v. 
 Guardian Life Ins. Co., 4 Abb. Pr. (N. S.), 346 ; 
 8. c, 6 Rob., 567. 
 
 10. Error in law. If the court upon the 
 evidence, given would have been bound to set 
 aside a verdict for the plaintiff, a new trial 
 will not be granted upon plaintiff's motion, 
 though there was error in the court below. 
 Hoyt v. Gfilman, 8 Mass., 333. 
 
 11. Newly discovered eyidence, merely 
 corrobative or cumalative, is no ground for a 
 new trial. Mechanics Fire Ins. Co. e. Nichols, 
 16 N". J., 410. 
 
 12. Newly discovered evidence does not 
 in all cases give the right to a new trial. It 
 must appear probable that injustice has been 
 done; that it is so conti-olling in its character 
 as to raise a presumption that it will affect the 
 finding upon a new trial. If it merely con- 
 tradicts or impeaches a witness, and does not 
 go directly to the merits of the controversy, it 
 affords no ground for a new trial. Grafts v. 
 Union Mutual Fire Ins. Co., 36 N. H., 44. 
 
 13. Weight of evidence. No direct evi- 
 dence was offered by either party as to the 
 cash value of the building, but the plaintiff 
 proved its cost when erected, forty years be- 
 fore, and the amount required to erect such a 
 building at the present time. Held, the court 
 was not able to say what the true value was 
 between these two extremes; that the jury 
 were better judges of that than the court, and 
 therefore the judgment would not be set aside. 
 Tuckerman v. Home Ins. Co., 9 R. I., 414. 
 
 14. Instmetions. Refusing to give a proper 
 instruction is not cause for reversal, if the 
 proposition contained in it was substantially 
 stated in another. New York Life Ins. Co., v. 
 Flack, 3 Md., 341. 
 
 15. — A court in banc will not consider 
 questions not raised in the court below. Gas- 
 earn D. OincinTiaii Ins. Co., 6 Ohio, 71. 
 
 16. Conflict of evidence. If the jury upon 
 410 
 
 a given slate of facts might have, but did not 
 find, for the insurer, the appellate court can- 
 not set aside the verdict without being guilty 
 of an unauthorized encroachment on the 
 right of trial by jury. New York Life Ins. 
 Co. ■0. Graham, 3 Duvall, 506. 
 
 1 7. Motion for. It is presumed that if the 
 verdict of a jury is unsustained by the facts, 
 the presiding judge who has given no opinion 
 on them will, on motion, grant a new trial, 
 and if no motion has been made for a new 
 trial, the party who failed to seek it in the 
 proper form cannot obtain it in the cotu-t 
 above. Union Ins. Co. v. Groom, 4 Bush, 389. 
 
 18. Error in law. The court will nut re- 
 verse, when, looking at the whole case, justice 
 seems to have been administered, notwith- 
 standing the court below erred in some of the 
 charges given to the jury. Southern Insurance 
 and Trust Co. v. Lewis, 43 Ga., 587. 
 
 19. Seaworthiness. A question of sea- 
 worthiness is peculiarly within the province 
 of a jury, and though the witnesses be equal 
 in number and respectability, on opposite 
 sides of the question ; though the opinion of 
 the court be against the finding of the jury, 
 still the court will not set aside the verdict 
 FuiUer v. Alemnder, 1 Brev., 149. 
 
 20. Power of the supreme conrt of Mis- 
 souri. The supreme court has no power to 
 review questions of fact found by a jury on 
 proper instructions given. That is the prov- 
 ince of the judge who tried the case; and 
 when the verdict is approved by the judge 
 before whom the case was tried, this court 
 must assume that the finding was correct 
 Schultz V. Merchants Ins. Co., 57 Mo., 331; 
 Seid V. Piedmont and Arlington Life Ins. Co., 
 58 Mo., 431. 
 
 21. Evidence conflicting. The court will 
 not interfere with the finding of a jury, if the 
 evidence is conflicting. Schvits v. Merchants 
 Ins. Co., 57 Mo., 331. 
 
 22.— Though the court is obliged to con 
 fess that there is serious conflict in the evi- 
 dence, the case will not be reversed if the ver- 
 dict is not so groundless as to startle the sense 
 of justice Mutual Benefit Life Ins. Co. v. Can- 
 non, 48 Ind., 364. 
 
 23. Justice having been done, errorwill 
 not reverse. The petition alleged enough to 
 show that the defendants were legally in de- 
 fault. It did not express, in detail, a compli- 
 ance with the conditions of the policy ; but the 
 
831 
 
 NEW TRIALS. 
 
 822 
 
 Wliat is not cause for. 
 
 reconl showed pi-oof of compliance with all 
 the conditions. HM, the ends of justice hay- 
 ing been attitiued, the court would not grant 
 a new trial. Mason v. Loaiaiana 8tat« Ins. Co., 
 1 Rob. (La.), 193. 
 
 84. The evideace was very conti-adict- 
 ory. Held, The court would not disturb tlie 
 verdict, because not convinced that truth had 
 been violated by the jury's verdict. Cote v. 
 Louisiana Ins. Co., 14 Mai-tin (La.), 165. 
 
 25. Seaworthiness. The jury found the 
 issue of seaworthiness against the insurer. 
 The evidence was very contradictory. H^d, 
 though the court did not think the weight of 
 the evidence was with the insured, yet they 
 would not set the verdict aside. Hyde v. Lovr 
 itiana State Im. Co., 14 Mai-tiu (La.), 410. 
 
 26. Evidence conflicting. Insurers de- 
 fended on the ground that insnred, at the time 
 of the fire, did not have the amount of goods 
 declared by them in the statement of loss de- 
 livered to insurers; that insured were fraudu- 
 lently seeking to recover for a loss they had 
 had not incurred. Held, the bnnlen was upon 
 insurer, to show that the lo-ss was exaggerated ; 
 that the question was one of tact, purely, for 
 the jury, with which the court would not in- 
 terfere. Ouma e. Hope Ins. Co., 16 La. An., 415. 
 
 27. Error in law. If the court is satisfied 
 that the judgment is right, it will not reverse, 
 though erroneous instructions were given to 
 the jury. Peoria Marine and IVre Ins. Co. v. 
 Frint, 37 lU., 333. 
 
 28. Weight of evidence. Where the ques- 
 tion is one of fact, this court will not reverse, 
 unless the finding in the court below was 
 plainly against the evidence. Hope Ins. Go. 
 «. Lonergan, 48 111., 49. 
 
 29. Diligence. A party cannot willfully 
 absent himself from the court, and then claim 
 a new trial, on the ground that he could have 
 introduced evidence to reduce the verdict, 
 had he been present To entitle one to a new 
 trial, he must show that he used reasonable 
 diligence. Hartford Fire Ins. Co. v. Vandu- 
 tor, 49 111., 489. 
 
 30. The evidence was conflicting. Bdd, 
 before the court could interfere with the find- 
 ing of the jaiy, it must appear clearly that the 
 jury have either mistaken the evidence, or 
 their conclnsions were opposed to the whole 
 tenor of it. Commercial Ins. Co. e. HueMer- 
 ger, 53 111.. 464 
 
 31. — In all cases where the evidence is 
 
 conflicting on questions of mere value, about 
 which men differ so widely in their judg- 
 ments, tlie court must rely upon the verdict 
 of Uie jury. Insurance Co. of North America 
 V. Hope, 58 III., 75. 
 
 32. — In answer to certain questions pro- 
 pounded in the application, he stated that his 
 health had always been good, that he had 
 never had any serious sickness. Defense: 
 That he had delirium tremens, upon which 
 the evidence was conflicting. Held, the court 
 would not interfere with the finding. 111. S. C. 
 Teutonia L^elns. Co. o. .Bee*, 7 Chi. Leg. 
 News, 190. 
 
 33. — On sixty-four casks soda ash, Burling- 
 ton warehouse B ; one hundred and fifty-seven 
 casks bleaching powder, ditto. The ware- 
 house contained two apartments designated A 
 and B respectively. The goods were con- 
 sumed in apartment A. The insured offered 
 evidence to show that at the time the contract 
 was made the letter B indicated Uiat the goods 
 were in bond. The insurer offered proof to 
 show that the letter B referred to the partic- 
 ular department in which tlie goods were 
 stored. The jury found in favor of the in- 
 sured. Hdd, the court would not disturb the 
 finding. 111. S. C. Hertford Ins. Co. v. Far- 
 risk, 5 Ins. L. J., 46. 
 
 .={4. — The verdict of the jury will not bo 
 disturbid by the supreme court when consist- 
 ent with the instructions and not clearly 
 against the weight of evidence. Ayers v. 
 Hartford Fire Ins. Co., 21 Iowa, 193. 
 
 35. — The court will not disturb a verdict 
 because of mere preponderance of evidence ; 
 the court will look to see if there is evidence 
 to sustain it, but will not weigh it. Kansas 
 Ins. Co. V. Berry, 8 Kan., 159. 
 
 36. — Insured stated in his application that 
 a certain brick wall was thirteen inches thick. 
 The jury found that it was a thirteen inch 
 wall. But the court is of opinion that it was 
 only about eight and a half inches thick. 
 Held, the court could not interfere witli the 
 finding of the jury. But it also appeared 
 that the defendant's agent was present when 
 the plaintiff estimated the tliickuess of the 
 wall and had opportunity to correct the csti. 
 mate if it was erroneous. Held, the court 
 would hesitate to reverse the judgment, even 
 though it was conclusively proved "that the 
 wall was less than thirteen inches thick. 
 Wright v. Hartfbrd Fire Ina Co., 36 Wis., 533. 
 
 411 
 
823 
 
 NON-OCCUPANCY. 
 
 824 
 
 When it is a defense. 
 
 37.— The court will not grant a new trial 
 on the ground that the verdict was not war- 
 ranted by the evidence, if there was a sub- 
 stantial conflict in the evidence. Scales v. 
 Universal Life Ins. Co., 42 Cal., 533. 
 
 38. — An appeal lies from an order of the 
 circuit court overruling a motion for a new 
 trial. Bckidtz t>. Pacific Ins. Co., 14 Fla., 73. 
 And if the verdict is not substantially a just 
 conclusion and the appellate court has just 
 grounds of belief that the juiy was influenced 
 by passion, prejudice, mistake, or any other 
 cause which should not properly control, the 
 verdict will be set aside; but it should be a 
 very plain case to justify an appellate court in 
 Interfering with the finding of a jury. Ihid. 
 
 39.— Although the court would not have 
 decided a question of fact upon the proof 
 given as the jury decided it, that is no ground 
 for setting the verdict aside. Moore v. Taylor, 
 1 A. & E., 25; 3 L. J. (N. S.) K. B., 132; 3 N. 
 & M., 406. 
 
 40. Diligence. If the defendant com- 
 plains that he was surprised by the testimony 
 of a witness, given several days before the 
 close of the trial, and he knew of a witness 
 by whom he could have contradicted the sur- 
 prising testimony, it was his duty to apply 
 for a continuance to produce the witness or to 
 take his deposition ; he cannot await the result 
 of the trial and then urge the surprise as a 
 ground for a new trial. Ferrer v. Home Mut. 
 Ins. Co., 47 Cal., 416. 
 
 41. — If the defendant had an opportunity 
 before trial of asking the witness what he 
 knew about the matter and did not do so, the 
 evidence is new; but it is so because of the 
 defendant's negligence; and is in effect keej)- 
 Ing back evidence to present upon a new trial 
 if the verdict should be unfavorable. Barber 
 e. Fletcher, 1 Doug., 305. 
 
 42. — Upon the face of the policy, no illegal- 
 ity was apparent. Held, the court would not 
 grant a new trial for the purpose of allowing 
 the defendant to show that the plaintiff knew 
 of its illegality. Gist v. Mason, 1 Term, 88. 
 
 43. Several verdicts the same way. What- 
 ever the private sentiments of the judge may 
 be, the court will not interpose to grant a new 
 trial, after there have been two concurrent ver- 
 dicts. Lavaiire v. Fletcher, 1 Doug., 284. 
 
 44. — ■ Upon the first verdict the court 
 granted a new trial on the ground that the 
 verdict was against the weight of evidence; 
 
 413 
 
 but upon the second trial upon the same evi- 
 dence, there was the same verdict. Held, the 
 granting of another trial would be the super- 
 seding of tlie functions of the jury and leading 
 to endless litigation. Foster v. Steele, 3 Bing. 
 (N. C.}, 892; 6 L. J. (N. S.), 0. P., 265; Foster 
 n. Moee, 3 Bing. (N. C), 896. 
 
 III. When new teial must be con- 
 fined TO one paetioulae question. 
 
 1. The court erred in excluding certain tes- 
 timony bearing upon the amount of damages 
 for which the case was reversed ; but it was 
 7ield, the new trial must be confined to that 
 q^uestion only. Haskins v. Hamilton Mut. Ins. 
 Co, 5 Gray, 432. 
 
 2. When a new trial is granted on the 
 measure of damages only, the new trial must 
 be limited to that question. Blake v. Exchange 
 Mut. Ins. Co., 12 Gray, 265; Hnieif v. Dorches- 
 ter Mutual Fire Ins. Co., id., 545. 
 
 3. This cause was remanded for a new trial 
 upon a question of damages only. Held, in- 
 sured could show that the other insurance did 
 not cover all of the goods insured by the pol- 
 icy. Haley «. Doreliester Mutual Fire Ins. Co., 
 1 Allen, 536. 
 
 NON-OCCUPANCY. 
 
 I. When it is a defbnse. 
 
 II. NOT A DEFENSE. 
 
 I. When it is a defense. 
 
 1. Stipulated: "If the dwelling house or 
 houses hereby insured become vacant by the 
 removal of the owner or occupant, or be un- 
 occupied at the time of effecting the insurance, 
 and not so stated in the application, this pol- 
 icy shall be void until the wriUen consent of 
 the company at the home office be obta,ined." 
 The family left the house about May 1st, 
 taking a bed and some other furniture, intend- 
 ing to return. House and furniture were de- 
 stroyed by fire, August 10th, while it was un- 
 occupied by any person. Held, a removal 
 within the meaning of the policy, hence no 
 recovery could be had. Cummins v. Agricul- 
 tural Ins. Co., 5 Hun. (N. T.), 554; Thayer v. 
 Same, id., 566. 
 
825 
 
 NON-OCCUPANCY. 
 
 826 
 
 What is a defense. 
 
 2. Stipulated : " The policy becomes void, 
 when the occupant personally vacates the 
 
 ■ premises, unless immediate notice be given to 
 this company and an additional premium 
 paid." Held, the policy became void when the 
 premises were vacated, though notice was giv- 
 en to ab agent whose authority was limited. 
 Harrison t. City Fire Ins. Co., 9 Allen, 231. 
 
 3. Stipulated : " If the building remains 
 unoccupied thirty days, without notice, this 
 policy shall be void. HM, to constitute oc- 
 cupancy, there must be practical use, and if it 
 remained without any practical use for the 
 space of thirty days it was an unoccupied 
 building, and the policy became void, not- 
 w^ithstanding the son of insured went through 
 the shop almost every day to examine the 
 premises. Keith v. Quincy Mutual Wire Ins. 
 Co., 10 Allen, 328. 
 
 4. The defendant asked the court to instruct 
 that if, under this policy, the plaintiff might 
 have recovered even for the consequences of 
 the acts of vicious or bad tenants, yet he can- 
 not recover if the building was wholly unoc- 
 cupied for so long a time as to render the risk 
 greater than it would have been with tenants 
 of ordinary care and habits. Held, refusing 
 to give the instruction was error. Luce v. Dor- 
 chester Mutual Fire Ins. Co., 110 Mass., 361. 
 
 5. Stipulated: "If the buildings insured 
 shall be vacated, and remain so more than 
 thirty days, without consent of this company, 
 the policy shall be void. Buildings unoccu- 
 pied ai'e not covered by this policy, unless in- 
 sured as such." The buildings were occupied 
 while the plaintiflf was engaged in carrying on 
 a farm contiguous to them, by insured and liis 
 servants taking their meals in the house. The 
 barn was used for storing hay and farming 
 tools. Held, occupancy implies an actual use 
 of the house as a dwelling place, and such use 
 of the barn oi'dinarily incident to a barn be- 
 longing to an occupied house. A mere use of 
 the barn for storage was not occupancy. 
 Hence the policy was void. Ashworth «. 
 Builders Mutual Fire Ins. Co., 112 Mass., 422. 
 
 6. Stipulated : " If the premises shall be va- 
 cated by removal of the occupant, for a period 
 of more than thirty days, without notice to 
 and consent indorsed upon the policy, it shall 
 be void." "While it was in force, consent was 
 obtained to let them remain vacant ; but the 
 person to whom the notice was given ceased 
 ito be agent for the insurer. The policy was ' 
 
 renewed by another, and afterwards one of the 
 houses became vacant for more than thirty 
 days. Held, notice to the former agent as to 
 the nonoccupancy before the policy was re- 
 newed, could not have any eflect upon the 
 nonoccupancy which occurred after the re- 
 newal was made, for the latter was a new con- 
 tract. Hartford Fire Ins. Co. v. Walsh, 54 111., 
 164. 
 
 7. Stipulated: "If the premises insured 
 shall be occupied or used so as to increase the 
 risk, or if they shall become vacant or unoccu- 
 pied, the policy shall cease and determine, 
 unless the company's consent is obtained.'? 
 Insured made preliminary proofs of loss, and 
 offered them at the trial, and they were read 
 in evidence. They contained this statement: 
 " There was no one living in the house at the 
 time, the tenant having left some three weeks 
 before the Are." Held, the preliminary proofs 
 of loss were evidence against the insured, and 
 he was bound to show that the nonoccupancy 
 was beyond his control. North Anwrican Fire 
 Ins. Co. ■». Zaenger, 63 111,^ 464. 
 
 S. The policy provided that if the premises 
 should become vacant or unoccupied, it should 
 be void. There was nothing but a table, a 
 crib, and a straw mattress in the house when 
 the lire occurred, nor had there been anything 
 else within two months. Held, the premises 
 were vacant and unoccupied, and the policy 
 therefore void. 111. S. C. American Ins. Co. 
 V. Padfield, 8 Chi. Leg. News, 138. 
 
 9. Stipulated: " Unoccupied premises must 
 be insured as such. Houses, barns, or other 
 buildings insured as occupied premises, the 
 policy becomes void when the occupant per- 
 sonally vacates the premises, unless immedi- 
 ate notice be given this company, and addi- 
 tional premium paid." The premises were 
 occupied at the time the policy was made, and 
 so continued till April, 1860, when the tenant 
 moved out and they were locked and fastened, 
 and so continued till the'December following, 
 when they were consumed. Insurers never 
 knew of the nnoccupancy. Held, insurers 
 were released. Wustum v. City, Fire Ins. Co., 
 15 Wis., 138. 
 
 10. Stipulated to be void: " If the building 
 insured shall become unoccupied, the policy 
 shall be of no force so long as tlie property 
 shall so continue." It had been unoccupied 
 for several weeks immediately preceding the 
 Are. Held, when insured abandoned the home, 
 
 413 " 
 
827 
 
 NON-OCCUPANCY. 
 
 828 
 
 What is not a defense. 
 
 the policy ceased to have any eflfect. JEtna 
 Im. Co. V. Burns, 5 Ins. L. J., 69. 
 
 II. What is not a defense. 
 
 1. Stipulated: "If the premises are, at the 
 time of insuring, or during the life of this 
 policy, become vacant, unoccupied or not in 
 use, and remain thus for over ten days, whether 
 by removal of the owner or occupant, or for 
 any cause, without this company's consent in- 
 dorsed hereon, this insurance shall be void." 
 Held, insured had the right to prove that at 
 the time, and before the premium was paid, 
 the house was vacant, and was to remain Un- 
 occupied for some time ; that such evidence 
 would estop the insurer to set up the nonoccu- 
 pancy as a defense to the action. Con« v. 2fi- 
 agam Fire Ins. Go., 3 N. T. S. C, 33 ; affirmed, 
 60 N. Y., 619. 
 
 2. Stipulated: " In case the premises shall 
 be left unoccupied without giving imme<liate 
 notice to the company, the policy shall cease, 
 and he of no force or effect." From January 
 15, 1871, until the fire occurred, March 30th, 
 following, the house was not inhabited by any 
 person, but all of the household goods of the in- 
 sured remained in it in the same condition they 
 were in when he left it. A person residing 
 near by visited the house on different occa- 
 sions, and maintained a general oversight and 
 care of the property therein contained. No- 
 tice of these facts was not given to insurers. 
 Held, occupation of a dwelling house means 
 living in it, not mere supervision over if; 
 that what will make occupancy must depend 
 on the circumstances of each case, and is a 
 fact for the jury or the referee to determine; 
 that where the policy requires immediate no- 
 tice of unoccupancy, the nonoccupancy that 
 •will not work a forfeiture of the policy must 
 be very short indeed. Pai?ie v. Agricultural 
 Ins Co., 5 N. Y. S. C.,.619. 
 
 3. Stipulated: "To be void if the prem- 
 ises shall become vacant or unoccupied. 
 Jleld, a temporary absence did not make the 
 premises vacant and unoccupied, though that 
 absence was from ten days to two weeks. 
 O'Brien v. Commercial firt Ins. Co., 6 J. & 
 8p. (N. Y.), 517. 
 
 4. Property insured as a dwelling house 
 remained vacant for fifty-three days before the 
 loss. Held, although the risk might have been 
 increased thereby, the insured was entitled to 
 
 414 
 
 recover, if he made reasonable efforts to ob- 
 tain a tenant, and expected to obtain one. 
 Garmoell v. Merchants and Fa/rmers Mut. Ins. 
 Co., 12 Gush., 167. 
 
 5. Insurer's agent refused to make insur- 
 ance upon the house, because it was not oc- 
 cupied; insured said: "The house "will he. 
 occupied I have a man in view who is going 
 to occupy it." It remained unoccupied near- 
 ly six months, when it was burned by an in- 
 cendiary. Held, a representation as to the 
 future condition of the subject insured, which 
 could not affect the rights of insured unless it 
 were fraudulently made. Kimball «. JEJtna 
 Ins. Co., 9 Allen., 540. 
 
 6. In the application for insurance, insured 
 was asked : " Who occupies the building?" 
 To which he replied: " Will be occupied by 
 a tenant." It was unoccupied at the time of 
 tlie fire. Held, no defense to the action unless 
 it appeared that the nonoccupancy increased 
 the risk. Herriek e. Union Mutual Fire Ins. 
 Co., 48 Me., 558. 
 
 7. " Occupied by the insured." He moved 
 out of it, and at the time of the fire it was un- 
 occupied. Held, not an agreement tliat in- 
 sured should continue to occupy, but a mere 
 description of the premises. Joyce r. Maine 
 Ins. Co., 45 Me., 168. 
 
 8. Stipulated: "If tlie premises become 
 vacant and unoccupied for a period of more 
 than thirty days, the policy shall be void." 
 The statute provided tliat, " No breach of any 
 of the conditions of the policy shall affect the 
 contract unless the risk be thereby materially 
 increased." Held, the stipulation did not re- 
 duce the time insured ; it was a condition with- 
 in the scope of the statute, and did not affect the 
 contract, unless the risk was thereby material 
 ly increased. Oannell v. Phasnix Ins. Co., 59 
 Me., 582. 
 
 9. Applicant stated in the written applica- 
 tion that the building was unoccupied, but 
 that it was to be occupied by a tenant. Held, 
 not a warranty that it should be occupied by 
 a tenant ; it was the reservation of a right to 
 have it occupied, and to avoid the inferencf 
 that it was to remain unoccupied; if tl , 
 answer could be construed to mean that t e 
 house should be occupied by a tenant, it 
 would be satisfied if one was procured within 
 a reasonable time, of which the jury were the 
 judges. Hough v. City Fire Ins. Go., 29 
 Conn., 10. 
 
829 
 
 NONSUIT. 
 
 830 
 
 Miecellaneous. 
 
 10. Stipulated: " If the premises become 
 vacated by the removal of the owner or occu- 
 pant, without immediate notice to the com- 
 pany, and consent indorsed, the policy shall 
 be void." At the time of the Are, they had 
 been unoccupied for nine months, of which 
 no notice was given. Insured was mortgagee, 
 the policy being made in the name of the gen- 
 eral owner; loss, if any, payable to the mort- 
 gagee. He had not any knowledge that the 
 general owner had vacated the premises. 
 Seld, the failure to give notice was a mistake 
 within the intendment of the statute, which 
 provides that no policy shall be avoided by 
 reason of any mistake, etc., but the damages 
 must be reduced in proportion as the premium 
 ought to have been increased, had insurers re- 
 ceived notice of the fact. Chamberlain- v. Jfew 
 EampsMre Fire Int. Oo., 55 N. H., 249. 
 
 11. " On dwelling house." For more than 
 a year prior to its destruction, it was not occu- 
 pied. Held, no defense to the action. Qilliat 
 e. Pawfucket Mutual Fire Ins. Oo., 8 R. I., 3&3. 
 
 12. " On dwelling house. All increase of 
 risk prohibited." The defendant offered to 
 prove that the premises were vacant, and that 
 the plaintiffs had notice of it; that the plaint-, 
 iffs emptied the contents of their straw beds 
 in two of the rooms of the building ; that it 
 was flred by an incendiary. Held, no defense 
 to the action, for insuring as a dwelling was 
 matter of description, rather than of stipula- 
 tion respecting its use. Cumberland Valley 
 Mutual Protection Oo. v. Douglaa, 58 Penn. 
 St., 419. 
 
 1 3. Policy upon slaughtering and packing 
 house stipulated : " If the premises shall be- 
 come vacant for more than twenty days, the 
 contract shall be void." The occupants bad 
 ceased to slaughter and pack, but there were 
 some meats and tallow in the premises. Held, 
 not a violation of the condition, for they were 
 not unoccupied. Nonoieh Fire Ins. Co. «. 
 Boomer, 53 111., 443. 
 
 14. The policy stipulated that the company 
 should not be liable if the premises became 
 vacant or unoccupied. Held, if insurer's agent 
 knew of their condition at the time the policy 
 was made, and they remained in the same con- 
 dition to the time of the fire, insurer could not 
 defend ou the ground that they were unoccu- 
 pied. Gommercial Ins, Oo. v. Spankneble, 53 
 111., 53. 
 
 15. There was no stipulation in the contract 
 
 as to nonoccupancy. Held, nonoccupancy was 
 no defense to the action, notwithstanding it 
 increased the risk. Hawks v. Dodge County 
 Mut. Ins. Co., 11 Wis., 188. 
 
 16. Insurer's agent accepted a risk upon an 
 unoccupied building, with notice that it was 
 unoccupied. He made a policy which, by its 
 printed terms, stipulated: "In case the 
 premises shall become vacant, and remain so 
 for thirty days without notice to the company, 
 and its consent given in writing, this policy 
 shall be void." Held, the stipulation could 
 not be invoked against the right of the insured 
 to recover. Dmine v. Home Ins. Co., 33 Wis., 
 471. 
 
 17. If a house is vacant at the time of the 
 fire, the policy is still valid unless it otherwise 
 declare. S.oye v. Merchants Ins. Co., 6 La. 
 An., 761. 
 
 18. Policy prohibited any inta-ease of risk 
 by any moans within the control of insured. 
 Hdd, insured could recover, notwithstanding 
 the bouse became vacant, unless its destruc- 
 tion by fire was more probalile when unoccu- 
 pied then wlien insured resided In it. Foy b. 
 JEtna Ins. Co., 3 Allen (N. B.,) 29. 
 
 NONSUIT, 
 
 1. A motion for a nonsuit concedes there is 
 no dispute as to the facts, and nothing to be 
 submitted to the jury felting Winchell v. 
 Hicks, 18 N. Y., 558). Excelsior Fire Ins. Co. 
 V. Royal Ins. Co., 55 N. Y., 348 ; s. c, 7 Lans., 
 138. 
 
 2. The plaintiff rested, and the defendant 
 moved to dismiss the cause; the grounds (;f 
 the motion were not stated, and when the case 
 was closed, the defendant asked the court to 
 direct a verdict for the defendant, but the 
 groupds or reasons therefor were not stated. 
 Held, both motions were properly refused. 
 Oushman v. United States Life Ins. Co., 4 Hun. 
 (N.Y.),783. 
 
 3. If a demurrer to the plaintiff's evidence 
 would have been fatal to his recovery, it was 
 the duty of the court to order a nonsuit. 
 Myers v. Qirard Ins. Co., 26 Penn. St., 192. 
 
 4. After the evidence on both sides had 
 been given in the case, the court granted a 
 a nonsuit. Held, error; for while the court 
 
 415 
 
'831 
 
 NOTICE OF LOSS. 
 
 832 
 
 To whom it may be given — What is sufficient. 
 
 has the right to order nonsuit upon the plaint- 
 iffs evidence, no such right exists after the 
 defendant has put in proof for himself. Brag- 
 don v. Appleton Mutual Fire Ins. Go., 43 Me., 
 259. 
 
 5. Stipulated: "The insured shall deliver 
 a particular account of the loss within four- 
 teen days after the Are shall happen." Upon 
 the trial of the cause, insured failed to show 
 compliance with that stipulation, and the court 
 granted a new trial rather than compel the in- 
 sured to take a nonsuit, because there was a 
 clause in the policy requiring suit to be 
 brought within six months after loss, and that 
 time had long since elapsed. Cameron v. Mon- 
 arch Ass. Co., 7 U. C. C. P., 213. 
 
 NOTICE OP LOSS. 
 
 I. To WHOM IT MAT BE GIVKN. 
 
 II. What is sirFPiciENT. 
 
 III. IN TIME. 
 
 rV. NOT IN TIME. 
 
 v. WArVEB OF. 
 
 VI. NOT WAIVBB OF. 
 
 VII. QnESTIONS FOB THE JURY. 
 
 VIII. Generally. 
 
 I. To WHOM IT MAT BE GIVEN. 
 
 1, Stipulated : " Persons sustaining loss or 
 damage by fire shall forthwith give notice 
 thereof to the company, stating the number 
 of their policy, etc." Defendant had an agent 
 residing at Otto, the place where the buildings 
 insured were situated, who delivered the poli- 
 cies to insured. Forthwith after the loss, in. 
 sured gave notice of it to him, and he exam- 
 ined the matter. Subsequently preliminary 
 proofs were made and served upon the defend- 
 ant. Held, a notice to the agent was notice to 
 the defendant. Kendall v. Holland Purchase 
 Ins. Co., 3 N. T. 8. C, 375. 
 
 2. P., the authorized agent of insurer coun- 
 tersigned the policy, but S. was in copartner- 
 ship with P., and they were doing business as 
 insurance agents. The complaint alleged that 
 notice of the loss was given through its au- 
 thorized agents, P. & S. ; that proofs of loss 
 were made in accordance with defendant's 
 directions, given through its said authorized 
 
 m 
 
 agents; that they were delivered to defendant 
 through its said authorized agents. Seld, S. 
 was, under the provisions of sec. 7, ch. 23, 
 laws of 1868, an agent of defendant; that be- 
 yond this, 8. could be treated as defendant's 
 agent by showing the course of dealing be- 
 tween the parties. Newman s. Springfield Fire 
 and Marine Ins. Co., 17 Minn., 133. 
 
 3. Stipulated: Immediate notice of loss, 
 must be given to the manager or some known 
 agent of the company. L. had been the local 
 agent, and was the person who issued this 
 policy. Insured gave notice to him, but the 
 defendants had transfeiTed this branch of their 
 business to another company, of which in- 
 sured had notice. L. made his report of the 
 loss to the latter company. Held, notice to the 
 defendants. Marsden v. City and County A». 
 Co., 1 L. R. C. P., 233; 12 Jur. (N. S.), 76; 35 
 L. J. C. P., 60; 1 H. & R., 53; 14 W. R., 108; 
 13 L. T. (N. S.), 465. 
 
 II. "What is sufficient. 
 
 1. The policy was assigned with insurer's 
 consent. Held, notice of the loss by assignee 
 was sufficient. Cornell v. Le Roy, 9 Wend., 163. 
 
 2. The insured was required to give a writ- 
 ten notice of the loss. Held, sufficient if it 
 described the loss, and invited the company 
 to assist in measures instituted to ascertain its 
 cause. Six v. Mut. Ins. Co., 30 N. H., 198. 
 
 3. The assignee of the policy gave notice of 
 the loss. Held, sufficient. Barnes v. Union 
 Mutual Fire Ins. Co., 45 N. H., 31. 
 
 4. Stipulated: Notice of the loss shall be 
 given within sixty days after it shall occur. 
 Insurer's agent notified the company by letter, 
 that the loss had occurred, but it did not ap- 
 pear, upon the face of the letter, that the agent 
 had written it at the request of insured. Held, 
 a sufficient compliance with the condition. 
 Stimpson v. Monmouth Mutual Fire Ins. Co., 
 47 Me., 379. 
 
 6. The policy required insurer to give writ- 
 ten notice of the loss. He gave notice to the 
 company's agent, and the day after the fire 
 occurred, the agent informed the company by 
 letter of the loss. Held, a sufficient compliance 
 with the terms of the policy and the provisions 
 of the statute. Caston v. Monmouth Mutual Fire 
 Ins. Co., 54 Me., 170. 
 
 6. Stipulated that " The insured shall give 
 notice of the loss in writing to the secretary, 
 
833 
 
 NOTICE OF LOSS 
 
 834 
 
 What is in time. 
 
 within thirty days from the time such may 
 happen." Within a week alter the loss, in- 
 surer's local agent wrote to insurer's secretary : 
 "Works requests me to notify you, that his 
 house, insured in policy No. 373, was totally 
 destroyed on the 39th ult." No objection was 
 made to it. Held, sufficient. Works v. Farmers 
 Ins. Go., 57 Me., 381. 
 
 7. If the plaintiflf proves that he has season- 
 ably given the notice called for by the con- 
 tract, he is under no obligation to show that 
 he has given the statutory notice : " I hereby 
 notify you, that my house in Bath was con- 
 sumed by fire Mai-ch 3d at nine o'clock, P. M." 
 Seld, sufficient, in the absence of evidence 
 tending to show that he had any other house 
 in Bath. Campbell v. Monmouth Mutual Fire 
 Ins. Go.i 59 Me., 430. 
 
 8. Stipulated: "Persons sustaining loss 
 must give notice thereof in writing, forthwith, 
 to the secretary. Fire occurred October 4th. 
 Insured went the same day to see the local 
 agent, and through him to give notice of the 
 loss. The agent was not at home, and insured 
 requested D. to give the notice as soon as he 
 returned. D. gave it on the 8th, and he wrote 
 immediately to the secretary. Seld. the letter 
 of the agent was a sufficient writing; that 
 forthwith meant within a reasonable time, of 
 which the jury were judges. West Branch 
 Ins. Go. «. Eelfenslein, 40 Penn. St., 389. 
 
 9. Stipulated: "Notice of a loss must be 
 given forthwith to the secretary." The agent 
 informed the company of the fact by letter. R 
 soon atter arrived at the place of disaster, and 
 examined into the loss. Seld, it was for the 
 jury to say, whether R., in his examinations, 
 acted as the agent for insurer. If he did, the 
 obligation to give notice was satisfied. Frank- 
 lin Fire Ins. Go. V. Updegraff, 43 Penn. St., 350. 
 
 10. The policy stipulated that notice of the 
 loss should be given to the company. Held, 
 sufficient, if it was received at the office of the 
 company. Seiron ». Peoria Marine and Fire 
 Ins. Go., 38 111., 335. 
 
 III. "What is in time. 
 
 1. Reinsurance. The company reinsured 
 sent copies of the original proofs to the rein- 
 surer, December 8th, the loss having occurred 
 October 9th, preceding. Seld, the proofs were 
 in time to satisfy the condition which required 
 27 
 
 immediate notice. Gashau v. Northwestern 
 National Ins. Go., 6 Biss., 476. 
 
 2. A notice to be given forthwith after the 
 loss is satisfied if given the day after. Sovey 
 V. American Mut. Ins. Go., 3 Duer, 554. 
 
 3. The act of incorporation required notice 
 of the loss to be given within thirty days, and 
 the by-laws annexed to the policy, required 
 the insured to give the notice forthwith, as re- 
 quired by the act of incorporation. SM, a 
 reasonable notice was sufficient. Kingsley v. 
 New England Mutual Fire Ins. Go., 8 Gush., 
 393. 
 
 4. Stipulated : " Notice of the fire shall be 
 given to the secretary forthwith." Insured, 
 the company's local agent and his counsel, 
 visited and examined the premises the morn- 
 ing after the flre, and the insured was exam- 
 ined upon oath, his statement signed by him, 
 and sent by the agent to the company's sec- 
 retary the following day. Seld, notice forth- 
 with. Beattyv. Lycoming Gounty Mut. Ins. 
 Go., 66 Penn. St., 9. 
 
 5. Stipulated: "His legal representatives 
 shall, as soon thereafter as possible, give no- 
 tice in writing thereof (meaning the injury) 
 to the company, at their office in Chicago, or 
 to the agent writing this policy." The acci- 
 dent occurred July 31, 1866. The agent who 
 countersigned the policy resided in the vicin- 
 ity of Mount Savage, but at that time he was 
 absent at Berkley Springs, where he heard of 
 the occurrence. Within a week the widow re- 
 ported the death to him, and proceeded to 
 make the necessary proof. Held, a sufficient 
 compliance with the stipulation. Providence 
 Life Ins. Go. ■». Man-tin, 33 Md., 310. 
 
 6. The policy required notice of the loss to 
 be given forthwith to the insurers. Hdd, it 
 meant with due diligence, under all the cir- 
 cumstances of the case. 8t. Louis Ins. Go. v, 
 Kyle, 11 Mo., 378. 
 
 7. "Forthwith," means with due diligence 
 under the circumstances of the case; and 
 where the proof shows that a day or two after 
 the flre, insured called at the defendant's office 
 and told them that he was burned out; that 
 an agent of the company was seen examining 
 the ruins before the fire was completely ex- 
 tinguished ; that a written notice was given 
 twenty days after the flre occurred ; that the 
 insurer then informed insured that the pres- 
 sure of business was such that the case could 
 not have immediate attention, but would be 
 
 417 
 
835 
 
 NOTICE OF LOSS. 
 
 836 
 
 What is not in time. 
 
 attended to in its turn. Held, the notice was 
 given with due diligence. Phillips v. Protec- 
 tion, Ins. Co., 14 Mo., 220. 
 
 8. Stipulated : " Notice of the loss shall be 
 given forthwith." Held, it means within a 
 reasonable time under the circumstances — 
 the use of due diligence. Peoria Marine and 
 Fire Ins. Go. v. Lexnis, 18 111., 553. 
 
 .9. Stipulated: "Insured shall forthwith 
 give notice of the loss to the companies, 
 through theu- general agent in the city of New 
 York." Held, a notice given to the local agent, 
 at Leavenworth, and by him forwarded to New 
 Tork within forty -eight hours, was sufficient. 
 Ofirmania Ins. Co. v. Curran, 8 Kan,, 9. 
 
 .10. Stipulated: " Insured shall give notice 
 ■within six days of any liability accruing under 
 the policy, and furnish a written statement of 
 all the particulars thereof." Insured received 
 a letter confessing the default, May 17th, and 
 placed the matter in the hands of his solicitor, 
 May 30th. Notice of the defendant's liability 
 was given June 6th, and particulars sent the 
 12th. Held, the plaintiff was not bound to 
 give notice to the company until he had proof 
 r>t the default. The plaintiff swore that he 
 could not and did not ascertain that any lia- 
 bility had been incurred by the defendant, 
 until June 6th. Ward v. Law Property Ass. 
 and Trust Soc, 4 W. B., 605. 
 
 IV. What is not in time. 
 
 1. Stipulated: "Notice of the loss shall be 
 given forthwith." Held, a notice given thir- 
 ty-eight days after the fire occurred was a bar 
 to the action. Inman v. Western Fire Ins. Co., 
 12 Wend., 452. 
 
 2. Stipulated : " Notice of the loss shall be 
 given forthwith." Held, a notice given more 
 tlian four months after it occurred was not in 
 time. McEners v. Lamrence, Hoff. Ch., 172. 
 
 3. A by-law annexed to the policy required 
 the insured to forthwith give notice of any loss 
 to the secretary. Notice of it was given eleven 
 days after it occurred. The secretary received 
 it and gave instructions as to the statement 
 necessary to be made, and an agent of the in- 
 surer subsequently made examination respect- 
 ing it. Hdd, the notice was too late, and in- 
 sured could not recover. (But see Inland Ins. 
 Co. D. Stauffor, 33 Ponn. St., 397 .) Trask v. 
 State Fire and Marine Ins. Co., 29 Penn. St., 
 198. 
 
 418 
 
 4. "Stipulated: "Insured shall forthwith 
 give notice to the secretary, and within thirty 
 days deliver to him a particular account of 
 such loss or damage, etc. E. was the local 
 agent of the company, and the policy had 
 been renewed through him. He heard of the 
 loss, and saw the reflection of the fire, bat he 
 gave no notice of it to the company. It oc- 
 curred September 30th, and the notice was 
 dated October 18th. Held, insurers were re- 
 leased. Edwards v. Lycoming County Mut. 
 Ins. Co., 75 Penn. St. 378. 
 
 5. The by laws of this mutual company re- 
 quired notice forthwith to be given to the sec- 
 retary of any loss that should occur by death 
 or fire, and proof thereof upon oath or affirm- 
 ation. Insured, gave informal notice of the 
 loss, with(ntt statement on oath. Held, a 
 strict performance was necessary and without 
 it, insured was not entitled to recover. Woodr , 
 fin V. Asheville Mut. Ins. Co., 6 Jones Law 
 558 ; Hoyle n. Worth Carolina Ins. Co., 7 id., 373. 
 
 6. Stipulated : "All persons sustaining loss 
 or damage by fire shall forthwith give notice 
 to the secretary, and within thirty days after 
 the loss make and deliver a particular account 
 thereof to the company." Insured gave notice 
 of the loss twenty days after it occurred. 
 Held; forthwith means immediately or with- 
 in a reasonable time ; the rule adopted with 
 regard to bills of exchange should be applied 
 to this stipulation; but the notice was not 
 timely. Whiteh-wrst v. North Carolina Mvt. 
 Ins. Co., 7 Jones Law, 433. 
 
 7. The policy required immediate notice of 
 any injury, to be given to insurer. The notice 
 was not given till six days after the accident, 
 and no excuse fur the delay was proven, nor 
 were there any averments inr the complaint 
 excusing the failure to give the notice earlier. 
 Held, the words were not to be construed lit- 
 erally ; but in the absence of any excuse for 
 the delay the condition was not satisfied. 
 Railway Passenger Ass. Co. v. BurweU, 44 
 Ind.,460. 
 
 8. Stipulated: "Insured shall give written 
 notice of the loss to the secretary, within 
 twenty days after it occurs." Verbal notice 
 was given to the local agent two days after it 
 occurred, and a written notice to the secretary 
 more than a month after, at which time in- 
 sured stated in his letter that he had given 
 verbal notice within the twenty days to the 
 local agent. The company's secretary wrote 
 
837 
 
 NOTICE OF LOSS. 
 
 838 
 
 What is waiver of. 
 
 to the attorneys of insured, that the president 
 ■would be at their place on a day named, to ar- 
 range the matter, and afterwards wrote them 
 the matter was in the hands of the company's 
 attorney, and that when he returned, the com- 
 pany would inform them what would be done. 
 Held, there was no substantial compliance 
 with the condition, nor was there any evidence 
 that it had been waived. Cornell v. Milwaukee 
 Mutual Fire Ins. Go., 18 Wis., 387. 
 
 9. Stipulated: "All persons sustaining loss 
 or damage shall forthwith give notice thereof 
 to the directors or secretary of this company 
 at their ofiSce, and within fifteen days there- 
 after, and deliver in as particularan account of 
 their loss or damage as the nature of the case 
 will admit" Plea, the defendant did not forth- 
 with give notice of, nor within fifteen days 
 after the fire, deliver in an account of his sup- 
 posed loss or damage by fire. Held, good. 
 JSoper V. Lendon, 1 El. & El., 825 ; s. c, 5 Jur. 
 (N. S.), 491 ; 28 L. J. Q. B., 260 ; 7 W. R, 441. 
 
 Y. What is waivee of. 
 
 1. " In case of loss, insured shall give no- 
 tice of it in writing," at insurers' ofiBce, in a 
 certain manner, and with certain particulars 
 specified, within a certain time after the loss. 
 Notice was given to insurers by their agent 
 within the time limited, but not in the man- 
 ner and with the particulars required, upon 
 which insurers' president made an examina- 
 tion of the premises, and declined to pay the 
 loss, but did not object to the manner of the 
 notice. HM, a waiver of any further or dif- 
 ferent notice. Clark f>. New Bnglavd Mutual 
 Fire In*. Co., 6 Cush., 342. 
 
 2. Stipulated : " All persons sustaining loss 
 shall forthwith give notice to the secretary or 
 other authorized officer, and as soon as possi- 
 ble thereafter, deliver as particular an account 
 of their loss as the nature of the case will ad- 
 mit, and produce to the company satisfactory 
 proof thereof. The Are occurred April 9th, 
 and the following morning the insured sent 
 notice of it to a director of the company, and 
 to an agent who represented other insurers 
 upon the same properly. The director and 
 agent inspected the ruins, and the director 
 promised to give notice of the loss to the com- 
 pany. The president of the company and an- 
 other director visited the ruins five or six days 
 after, and April 20th insured delivered to the 
 
 secretary of the company a formal written 
 notice of the fire, and of his loss. Held, the 
 facts, coupled witli the conduct of the com- 
 pany when a formal notice was served, were 
 evidence from which the jury had the right to 
 infer a waiver of the notice; that a waiver 
 once established strikes the condition out of 
 the contract. The case of Trask v. State Fire 
 Ins. Co., 29 Penn. St., 198, is not to be under- 
 stood as unsettling this doctrine, that case 
 being imperfectly reported. Inland Ins. Co. v. 
 Stiiwff'er, 83 Penn. St., 397 ; Commonwealth Ins. 
 Co. V. Seiinett, 41 id., 161. 
 
 3. Stipulated : " Notice of the loss shall he 
 given forthwith," but none was given till six 
 days after the fire. The company sent an 
 agent to investigate the loss, and otter a com- 
 promise, which he did, and another agent 
 made an offer of settlement. Held, the com- 
 pany could not say upon the trial that notice 
 of the loss was not timely, for they had waived 
 their right to it Lycoming County Ins. Co. o. 
 Sdirefier, 42 Penn. St, 188. 
 
 4. The policy required insured to forthwith 
 give written notice of the loss. The agent of 
 the company resided near tlie premises insured, 
 and had immediate notice of the fire. The 
 president and a director of the company re- 
 paired to the place a few days after the fire, 
 settled other losses, and made an examination 
 of this. Afterwards the claim was rejected 
 for want of a written notice. The court non- 
 suited the plaintiff. Hdd, error; there was 
 evidence of waiver to cai-ry the case to the 
 jury. Drake «. Farmers Union Ins. Co., 3 
 Grant's Cas., 325. 
 
 5. Policy required immediate notice of loss 
 to be given. A fire occurred tlie lOtli, notice 
 mailed the 11th, and received by tlie insured 
 the 15th. Held, sufficient Held, also, exam- 
 ining the claim and refusing to pay it for 
 reasons other than a failure to give notice, 
 waived objection to the notice. Schenck v. 
 Mercer County Mutual Fire Ins. Co., 24 N. J., 
 447. 
 
 6. The insurers sent agents to the place 
 where the loss occurred to investigate it Held, 
 they could not defend on the ground that they 
 had not notice of the loss, for any notice which 
 induced them to do so was sufficient. Insur- 
 ance Co. of North America v. McDowell, 50 111., 
 120. 
 
 7. Stipulated: " Notice of the loss shall be 
 given forthwith, and a particular account of i' 
 
 419 
 
839 
 
 NOTICE OF LOSS — NOVATION. 
 
 840 
 
 What is not waiver of— Questions for the jury — Generally, etc. 
 
 as soon after as possible." There were two 
 policies by the same company; one on shop, 
 and the other on goods. Fire occurred June 
 13th. Notice of the loss was not given till 
 July 13th. Defendants then corresponded 
 with plaintiffs and required a more particular 
 statement, which was furnished. They now 
 refused to pay, on the ground of suspicious 
 circumstances attending the fire. Held, insur- 
 ers were precluded from raising any objection 
 as to the time the notices were given, or as to 
 their sufficiency. Lamphin v. Ontario Marine 
 and Fire Ins. Co., 13 U. C. Q. B., 578. 
 
 VI. What is not waiyee op. 
 
 1. Stipulated: "Notice of the loss shall be 
 made in writing to the secretary or one of the 
 directors, within thirty days from the occur- 
 rence." The fire occurred December 19, 1855. 
 Notice was given August 31, 1856. The secre- 
 tary wrote, " the notice has been laid before the 
 directors, who voted to postpone the subject 
 indefinitely." Held, no waiver of the condi- 
 tion. Patrick v. Farmers Ins. Co., 43 N. H., 631. 
 
 2. Insurer stated to insured that the prelim- 
 inary proofs were unsatisfactory, and refused 
 to pay claim on the ground of a material con- 
 cealment, and further stated to insured all ob- 
 jections to a recovery in any form are reserved. 
 Held, the right to the notice, required to be 
 given forthwith after the loss, was not waived; 
 nor to an account of the loss required to be 
 delivered as soon as possible. Held, also, 
 " forthwith " and " as soon as possible," mean 
 with due diligence under all the circum- 
 stances of the case, of which the jury were the 
 judges. Edwards v. Baltimore Fire Ins. Co., 
 8 Gill, 176. 
 
 VII. Questions foe the juet. 
 
 1. Stipulated: " In the event of injury with- 
 in the meaning of this policy, he, or in case 
 of his death, his legal representatives, shall as 
 soon thereafter as possible give notice thereof 
 to the company at their office in C, or to the 
 agent writing the policy." The person in- 
 stired was killed near C, and notice of the 
 death might have been given in one day. 
 But none was given till eight days tliereafter. 
 Held, the condition must receive a reasonable 
 construction: that notice was to be given with 
 due diligence, and that was to be determined 
 420 
 
 by all the circumstances in the case, and it 
 was a question of fact for the jury. Provident 
 Life Ins. Co. v. Baum, 29 Ind, 236. 
 
 2. Stipulated : " Notice of the loss shall be 
 given forthwith, and as soon after as possible 
 a particular account of it signed by the claim- 
 ant under oath, and proof thereof by oath or 
 affirmation. The fire occurred November 18, 
 1839 ; notice of it was given on the 26th. The 
 mails were carried from the place where the 
 loss occurred tri-weekly. Held, it was error 
 for the court to take from the jury the question 
 whether due diligence had been exercised in 
 giving notice of the loss. Edwards «. Balti- 
 more Fire Ins. Co., 3 Gill, 176. 
 
 3. The policy required notice of the loss to 
 be given forthwith to insurer. The premises 
 were consumed April 1st, and notice of the 
 loss was given on the 5th. Held, it was the 
 duty of the court to direct the jury to consider 
 whether that notice was, under all the circum- 
 stances of the case, given with reasonable dil- 
 igence. St. Louis Ins. Co. v. Kyle, 11 Mo., 278. 
 
 VIII. Geheeaxlt. 
 
 1 . Stipulated : " Loss payable within sixty 
 days after due notice and proof thereof." 
 Held, the plaintiffs case is not made, unless 
 such proof was given at the trial. Mitchell v. 
 Home Ins. Co., 32 Iowa, 421. 
 
 2. Stipulated : " Notice of the loss shall be 
 given in writing, and proof of it by protest 
 and affidavit, delivered to insurers within 
 sixty days after it shall have happened. Held, 
 action could not be maintained if the con- 
 dition had not been observed. McFaul v, 
 Montreal Inland Ins. Co., 3U, C. Q. B., 59. 
 
 NOVATION. 
 
 1 , The society was originally a mutual so- 
 ciety, but in 1855 it ceased to have a guaranty 
 fund. By a transaction to which the petitioner 
 was party, an arrangement was made by which 
 the mutual society was effectually determined, 
 and the fund handed Over to another society, 
 who agreed to assume all the liabilities of the 
 mutual society, including all claims arising 
 upon policies issued by the mutual society. 
 Held, a complete novation. In re Merchants 
 and Tradesmen^ Ass. 8oe., 9 L. B. £q., 694; 
 
841 
 
 OCCUPATION OF PREMISES — ONE-THIRD NEW FOR OLD. 
 
 842 
 
 When it shall be deducted. 
 
 18W.R., 735; 22 L. T. (N. S.), 264; In re 
 United Port) and General lug. Co., Event' 
 Claim, 16 L.R Eq., 854; 29 L. T. (N. S.), 22. 
 
 2. Defendant issued a policy on the life of 
 A. and afterwards transferred its business to 
 the H. Co. Insured procured that company 
 to make an indorsement guarantying the due 
 fulfillment of the contract, and paid one prem- 
 ium to the H. Co. The claim for death was 
 preferred against the latter company. Held, 
 a complete novation, and not a mere guaran- 
 ty. In re International Life Association So- 
 ciety and Hercules Ins. Co., ex parte Blood, 9 L. 
 K. Eq., 316; 39 L. J. Ch., 295; 18 W. R., 
 370; 22 L. T. (N. S.), 467; In re Times Life 
 Association and Guaranty Co., 5 L. R. Ch., 
 381 ; In re Anchor Ass. Co., id., 632 ; In re 
 Medical, Invalid and Life Ins. Co., 6 L. R. 
 Ch., 362; In re National Pror.incial Life 
 Ass. Soc, Fleming's Cage, id., 393. 
 
 3. The business and assets of the M. Ass'n 
 were transferred to the W. Soc, which was 
 afterwards incorporated with the Albert Co. A 
 policy holder in the M. Ass'n paid his prem- 
 iums at the several oflSces as the successive 
 changes took place, the last being receipted 
 for in the name of the Albert Co. HeM, not 
 enough to establish novation, and that the ex- 
 ecutors of the insured were entitled to an or- 
 der winding up the M. Ass'n. In re Man- 
 chester and London Life Ass., 5 L. R. Ch., 640; 
 23 L. T. (N. S.), 332; 18 W. R., 1185; affirming 
 s. c, 9 L. R. Eq., 643; 39 L. J. Ch., 595; In re 
 Family Endowment Soc, 5 L. R. Ch., 118; 21 
 L. T. (N. S.), 775; In re Medical Invalid Life 
 Ins. Co., 6 L. R. Ch., 374. 
 
 OCCUPATION OP PREMISES. 
 
 (See Uss and OcccpATioir PBOHisrrED.) 
 
 OCCUPATION OR VOCATION. 
 
 (See Wabbastieb, 11 (g) 
 
 ONE HALF HER VALUE. 
 
 (See Ohb Tbibd Nkw fob Old ; Total Lobs.) 
 
 ONE THIRD NEW FOR OLD. 
 
 I. When it sbulll bb deducted. 
 
 II. NOT BE DEDUCTED. 
 
 I. When it shall be deducted. 
 
 1. She was repaired at an expense exceed- 
 ing half her value, and proceeded on her voy- 
 age. Held, one-third new for old must be de- 
 ducted in determining tlje partial loss, not- 
 withstanding that she was repaired with 
 money obtained by bottomry and sold to sat- 
 isfy the bottomry bond. Humphrey v. Union 
 Ins. Co., 3 Mason, 429. 
 
 2. Whether the vessel was on her first voy- 
 age or not, or whether she was old or new, is 
 of no consequence in estimating a particular 
 average ; in either case, one-third new for old 
 must be deducted. Dunham v. Commercial 
 Ins. Co. 11 Johns., 315. 
 
 3. In the English courts, if injury is sus- 
 tained and repairs are made upon a vessel on 
 her first voyage, no deduction " new for old," 
 is allowed to the insurer; but this court (Sup. 
 Ct. of N.Y.) has not adopted the English rule, 
 and the deduction is therefore made whether 
 the vessel is new or old. Byrnes v. National 
 Ins. Co., 1 Cow., 265. 
 
 4. The money chargeable in general average 
 against freight and cargo, must be deducted, 
 from the amount necessary to repair ship 
 when ascertaining whether the damage to the 
 ship exceeded half her valne. Pemant v. 
 National Ins. Co., 15 V\ end., 453. 
 
 5. Upon three-fourths of ship, valued at 
 $1,800. The highest estimate of repairs at the 
 port of destination was |1,700. After deduct- 
 ing one-third new for old, there would remaiu 
 $1,133.33. Her whole value in the policy 
 stated was $2,400. Held, the valuation in the 
 policy was binding on both parties; and the 
 deduction of one-third new for old must be 
 made from the gross estimate of repairs in 
 order to ascertain whether she was damaged 
 more than one-half her value. Held, also, 
 that if the master's fault or the owner's im- 
 providence prevented the procuring of funds 
 to repair her, the insured could not abandon. 
 American Ins. Co. v. Ogden, 20 Wend., 287. 
 
 6. The rule by which one-third of the cost 
 of new materials is deducted is general, and 
 applies to the case of a ship entirely new. 
 
 421 
 
843 
 
 ONE-THIED NEW FOR OLD — ONUS PROBANDI. 
 
 8ii 
 
 When it shaR not be deducted — When upon insurer. 
 
 NickelU v. Maine Fire and Marine Ins. Co., 11 
 Mass., 253. 
 
 7. In adjusting a partial loss on ship before 
 deducting one-third new for old, the value 
 of the old materials must be first deducted 
 from the gross repairs, and one-third from 
 that balance. Brookes v. Oriental Ins. Co., 7 
 Pick., 259. 
 
 8. If it is necessary to raise money at ma- 
 rine interest to repair sea damages, the rule 
 of deducting one-third new for old applies to 
 the interest. Orrok v. Commonwealth Ins. Co., 
 21 Pick., 456. 
 
 9. In ascertaining whether the loss is con- 
 structively total, one-third new for old must 
 be deducted from the estimate for repairs, and 
 unless the net sum exceeds fifty per cent, of 
 the valuation in the policy, there is not a 
 total loss. Ileebner v. Eagle Ins. Go~, 10 Gray, 
 131. 
 
 10. She could not have been repaired at the 
 port of distress; but she was made seaworthy, 
 and afterwards at another port, was com- 
 pletely repaired. Expenses were also incurred 
 at the port of distress to obtain money to 
 make her seaworthy. Held, one-third new for 
 old must be deducted from all repairs as well 
 as the expense of raising money to pay for 
 them (citing Brooks ii. Oriental Ins. Co., 7 
 Pick., 359 ; Orrok «. Commonwealth Ins. Co., 
 21 id., 456). Paddock v. Commercial Itis. Co., 
 104 Mass., 521. 
 
 11. "On boat, machineiT- and furniture, no 
 partial loss or particular average, unless it 
 amounts to five per cent." Held, one-third 
 new for old must be deducted from all repairs, 
 including repairs to the shaft; and to the net 
 sum should be added, without any deduction, 
 the charge for towage from the place of dis- 
 aster to the port of repairs. These exceeded 
 five per cent. ; hence insurers were held liable. 
 Perry v. Ohio Ins. Co., 5 Ohio, 305. 
 
 13. Ship was damaged by perils of the sea. 
 Held, insurers were liable only to the amount 
 of two-thirds the cost of repair, unless cir- 
 cumstances were shown to take the case out 
 of the general rule. Poingdestre v. Boyai Ex- 
 change Ass. Co., R. & M., 378. 
 
 II. Whkn it shall not be deducted. 
 
 1. She was damaged by perils of the sea; 
 repairs were made, and an expense for towing 
 and boat hire was incurred, from which the I 
 422 
 
 adjuster deducted one-third new for old. HOd 
 the deductions could not be allowed; and the 
 adjuster's statement must be reformed. The 
 rule which allows one-third new for old to be 
 deducted from repairs does not apply to inci- 
 dental expenses, nor to new articles which 
 have no connection with the repairs, and from 
 which, insured cannot possibly derive en- 
 hanced value or benefit. Potter v. Ocean Ins. 
 Co., 3 Sumn., 27. 
 
 2. One third new for old is predicated upon 
 the fact that the owner gets tlie ship and she 
 is better because of the repairs; but the rule 
 does not apply if the owner never gets posses- 
 sion of her, though she be fully repaired. 
 Da Costa t. Newnham, 2 Term, 407. 
 
 3. On ship from Bristol to New York, dur- 
 ing her stay there, and back to her port of 
 discharge. Held, the defendant was not enti- 
 tled to a deduction of one third new for old, 
 because she was a new ship, and the passage 
 from England to America, and from America 
 to England, constituted only one voyage. 
 Fenwick t. Bobinson, 3 C. & P., 323. 
 
 4. One third new for old shall not be de- 
 ducted from repairs to ship if she was on her 
 first voyage ; and it was held, whether she was 
 on her first voyage was to be ascertained by 
 the general opinion of merchants and not by 
 the opinion of insurers only. Pirie v. Steele, 2 
 M. & Rob., 49 ; 8 C. & P., 200. 
 
 5. In estimating the cost of repairs for the 
 purpose of determining whether the damage 
 exceeds fifty per cent, of the ship's value, one- 
 third new for old is not to be deducted. Phil- 
 lips v. St. Louis Perpetual Ins. Co., 11 La. An., 
 459. 
 
 ONUS PKOBANDI. 
 
 (See MisBSPEESENTATioNs ; SsAwoBTHnrssa ; Soi- 
 
 OIDE ; VOTAGB InSUKES.) 
 
 I. When upon iksubeb. 
 
 II. rNBTIBED. 
 
 III. Qeneballt. 
 I. "When upon insurer. 
 
 1. The burden of proof is upon the insurer 
 to show that all material facts and circum- 
 stances within the knowledge of the insured 
 
845 
 
 ONUS PROBANDI. 
 
 846 
 
 When upon insurer. 
 
 ■were not revealed, or that he did not truly an- 
 swer questions propounded respecting such 
 facts and circumstances. Insurance Co. o. 
 Fohom, 18 Wall., 237; s. c, 8 Blatch., 170; 9 
 id., 201. 
 
 2. Fraud is not to be presumed, but must 
 be proved by those who allege it Oliver ■». 
 JiviwH Commercial Marine Ins. Co., 3 Curtis, 
 277. 
 
 3. Insurers defended on the ground of mis- 
 representation, negligent navigation, deviation 
 and unseaworthiness. Held, the onus probandi, 
 as to the three former, was upon insurers ; as 
 to tlie la£t, the insured was bound to show 
 that the vessel was seaworthy, for that is a 
 condition precedent; and to establish this he 
 must show she was equipped for the voyage 
 in such a manner as vessels of her class were 
 usuallj' equipped, according to the standard of 
 the p;«rt to which she belonged. Tidmarsh v. 
 Washington Fire and Marine Ins. Co., 4 
 Ma-son, 439. 
 
 4. The onus probandi is upon the insurer to 
 establish the breach of any warranty stated in 
 the policy. The insured is not bound to show 
 that there was no breach. Swick v. Home Life 
 Ins. Co., 2 Dil. Cir. C, 160; Holabird v. Insur- 
 ance Co., 2 id., 166, note. 
 
 5. The pleas stated afiSrmative matter as a 
 defen&e to the action. The replications tra- 
 versed the pleas. Seld, the onitsprobandi was 
 npon the defendant. MoUoman e. Life Ins. 
 Co., 1 Woods, 674. 
 
 6. Stipulated: "If upon a regular survey, 
 the vessel shall be thereby declared unsea- 
 worthy by reason of her being unsound, 
 rotten, or incapable of prosecuting her voyage 
 on account of her being unsound or rotten, 
 then the insurers shall not be bound to pay 
 their subscription on this policy. Held, the 
 plaintiffs were entitled to recover, unless it 
 appeared that the unseaworthiness was caused 
 solely by rottenness or unsoundness. Innes v. 
 V. AUiance Mutual Ins. Co., 1 Sandf , 310. 
 
 7. Where the insurer defends on the ground 
 that a representation was not complied with, 
 the onus of proof is upon him. Jones Manu- 
 facturing Co. 0. Manuftitturers Mutual Fire 
 Ins. Co., 8 Cush., 82. 
 
 8. Policy on a paper mill, etc. Between the 
 sum insured and the description was written, 
 "On condition that applicants take all risk from 
 cottton waste." EM, they do not constitute 
 a condition, but express insurer's intention not 
 
 to insure against fire originating in cotton 
 waste ; they were not au exception ; the party 
 for whom matter of excuse is fViruished, either 
 by statute or agreement, must bring it forward 
 and support it by evidence. Kingsley v. New 
 England Mutuai Fire Ins. Co., 8 Gush., 393. 
 
 9. Other insurance prohibited. Held, the 
 onus of proof was upon insurers when they 
 asserted that any other was made. Clark v. 
 Hamilton Mut. Ins. Co., 9 Gray, 148. 
 
 10. The defendant, sued upon an assess- 
 ment, denied that the plaintiff's agent had 
 complied with the statute before executing the 
 policy. Held, the burden was upon the plaint- 
 iff to make out the compliance, and a certifl- 
 
 ' cate from the treasurer, which failed to show 
 that the compliance was made before the date 
 of the premium note, was not sufScient. WasTi- 
 ington County Mut. Ins. Co. o. Chamberlain, 16 
 Gray, 165. 
 
 11. Warranted neutral. BeM, suflBcient for 
 the insured to give general evidence in sup- 
 port of the warranty, leaving it upon the 
 insurer to falsify it or prove a breach of the 
 warranty. Ludlow v. Union Ins. Co., 8 S. & 
 R.,119. 
 
 12. Plaintiff averred that the statements 
 made in respect to the health of the insured 
 were true. Defendant pleaded specially that 
 the statements were untrue, for insured had 
 been afSicted with certain diseases not dis- 
 closed in the application. Plaintiff gave evi- 
 dence tending to show tliat the statements 
 made in the application were true. Held, not 
 error for the court to instruct the jury that the 
 burdenof proof was on defendants to establish 
 the defense stated in their plea. Trenton Mu- 
 tual Life Ins. Co. v. Johnson, 24 N. J., 576. 
 
 13. Insurer was not to be liable in case in- 
 sured failed to answer truly all questions pro- 
 pounded in the application. On being asked 
 if he had ever been, or was then, employed in 
 any military or naval service, he answered, 
 "No." Held, the onus was upon insurer to 
 show that he had been, in fact, employed in 
 militai'y or naval service. Holding a position 
 as chaplain did not sustain the issue. Mutual 
 BentfU Life Ins. Co. e. Wise, 34 Md.. 582. 
 
 14. The court instructed the jury that upon 
 an issue of a false representation, made in rc> 
 spect of the habits of the insured, or of his 
 death being caused by intemperance, the 
 affirmative was upon the insurer. New York 
 Life Ins. Oo. v. Graham, 2 Duvall, 506. 
 
 423 
 
847 
 
 ONUS PROBANDI. 
 
 848 
 
 When upon insuied. 
 
 15. To avoid the policy, the act of self 
 destruction must be voluntary. An insane 
 act is not voluntary. St. Louis Mutual Life 
 Jm. Go. v. Oromeg, 6 Bush, 268. 
 
 16. It is not necessary for the plaintiflF to 
 aver and prove the truth of his representations, 
 nor is he bound to set out in the declaration 
 his application for the insurance, nor is he 
 bound to aver that the notary or magistrate 
 who granted the certificate of loss was the 
 nearest notaiy or magistrate to the place 
 where it occurred. Herran v. Peoria Marine 
 and Fire Ins. Co., 28 111., 235. 
 
 17. All increase of risk was prohibited by 
 the charter, printed on the back of the policy. 
 Seld, burden was upon the'defendant to show 
 that this condition was violated, and this was 
 exclusively for the jury. Sitter v. Sun Mutual 
 Ins. Co., 40 Mo., 40. 
 
 1 8. Insurers sought to defend, on the ground 
 that answers to certain questions propounded 
 in the application were untrue. Held, the 
 burden of proof was upon insurers in respect 
 to all the affirmative matter set up in the an- 
 swer. Price V. Pkosnix MiUual Life Ins. Co., 
 17 Minn., 497. 
 
 19. It appeared that the ship sailed on the 
 voyage insured. Held, the onus of proving 
 deviations was cast upon the insurer. Franco 
 v. Natuseh, 6 Tyrw., 401. 
 
 20. Where it is shown that a person acting 
 as master has committed barratry, if the in- 
 surer would avoid its effect, he must affirm 
 and prove that the' person so acting was 
 owner. Boss v. Hunter, 4 Term, 33. 
 
 21. From Norfolk to Tobago, with the lib- 
 erty to call at two or more islands while there, 
 and from thence back to Norfolk. She was 
 captured, but whether she had kept always in 
 the course of the voyage, did not appear. 
 Held, the onus was upon insurers to show that 
 when she was lost she was npon a voyage not 
 insured. Shedden ■d. Logan, Faculty Dec., 
 1781 to 1787, p. 520. 
 
 II. When upon insueed. 
 
 1. On freight, "Warranted against seizure 
 in port." She was stranded, and found not 
 worth repairing; but the cargo was discharged 
 on board lighters, seized, detained, carried to 
 Amsterdam, and put into the king's stores. 
 Held, insured on freight must show that the 
 master was prevented from forwarding the 
 cargo for some cause other than seizure, oth- 
 434 
 
 erwise the failure to carry was imputable to 
 the seizure. Bradhurst v. Columbian Ins. Co., 
 9 Johns., 18. 
 
 2. On cargo of brig Abema, at and from 
 New York to Newfoundland. It appeared 
 she was not a brig proper; that she was 
 rigged square on the mainmast and schooner 
 on the mizzen, and commonly called a herma- 
 phrodite brig. There were two vessels of the 
 same name, the other a brig proper. Held, 
 insured must show, that although " brig " was 
 mentioned in the policy, the schooner or half • 
 brig was the one intended in the contract 
 Sea Ins. Co. v. Fmeler, 21 Wend., 600. 
 
 .S. Action to recover as for a total loss on 70 
 casks of ale. " Warranted free from partial 
 loss." She was stranded while entering the 
 harbor of Galveston, aboat twenty-three of the 
 casks were taken out, ten were tendered to the 
 consignees, but rejected on the ground that 
 their contents were worthless. Held, the bur- 
 den was upon the plaintiff to establish a total 
 loss, or that by reason of damage by perils of 
 the sea, the property was of no mercantile 
 value. Toung v. Pacific Mut. Int. Co., 2 J. & 
 8p. (N. T.), 321. 
 
 4. " On freight, to be confined to the trade 
 between Atlantic ports of the United States, 
 or the ports of London, Liverpool and Havre, 
 and the Pacific Ocean, China Seas, including 
 Australia, Van Dicman's Land and ports in the 
 Indian Ocean." At the date of the policy 
 she was on a voyage from Singapore to Bom- 
 bay, at which place she arrived, and sailed 
 thence with a cargo for Liverpool, at which 
 place she took another cargo, sailed for New 
 York and was lost. Held, defendants might 
 safely rest on the language of the policy, and 
 leave the plainti^ to prove that a trade such 
 as the policy described, included, as inci- 
 dental to it, or as forming a part of it, a direct 
 voyage from London, Liverpool or Havre to 
 New York or other ports of the United States 
 on the Atlantic. MaMory v. Commercial Int. 
 Co., a Bos., 101 ; 8. c, 18 How Pr., 395. 
 
 6. "Not liable for any derangement or 
 breaking of the machinery, or bursting of 
 boilers, unless occasioned by stranding. Held, 
 if two perils operated to cause the injury, for 
 one of which insurer was liable and the other 
 exempt, the burden was upon the insured to 
 prove definitely the amount of the loss sus- 
 tained by the peril insured against. Heebner 
 V. Eagle Int. Co., 10 Gray, 131. 
 
849 
 
 ONUS PROBANDI. 
 
 850 
 
 Generally. 
 
 6. She had encountered heavy weatlier, and 
 had shipped some water; some of tlie goods 
 ■were damaged by sea water, others were 
 damaged by dampness. Htld, the fact of dam- 
 age, even by contact witJIi sea water, was not 
 enough to fis the liability of the insurers. The 
 bttideu was upon insui-ed, not only to prove 
 damage, but that it anise from a peril insured 
 against. Baixr v. Jtant^fiiauren In». Co., 12 
 Gray, 608. 
 
 7. " This policy not to cover any loss or 
 damage by fire which may originate in the 
 theatre proper." Held, an exception ; and the 
 promise is to perform only what remains after 
 the part excepted is taken away ; therefore to 
 
 ' establish a cause of action, insured must nega- 
 tive the exception, hence the burden was upon 
 him to show that tlie fire did not originate in 
 the theatre. Sofiitr e. Xorwith City Int. Co., 
 11 Allen, 3S6. 
 
 8. Verdict for the AiU amount of the entire 
 damage, including breaking of bottles, empti- 
 ness, or pillage, or deterioration in quality 
 and merchantable value ; but the evidence did 
 not show' how much was caused by actual 
 contact with sea water, and how much by 
 steam or dampness. The policy excepted 
 damages occasioned by dampness. Seld, the 
 burden was upon insured to bring the damages 
 within the terms of the contract, therefore the 
 finding must be set aside. Cory v. Boyhton 
 Int. CX 107 Mass., 140. 
 
 9. " Proliibited from all guano islands ex- 
 cept the Chinchas." She loaded at Kavassa 
 in the Carribbean S>ea, with a cargo of mate- 
 rial, a product of that island, claimed by the 
 defendants to be guano, but by the plainti&s 
 claimed to be a mineral phosphate. Held, Hie 
 burden was upon the insured to show that 
 there had been no breach of the warranty ; 
 that the act of congress, 1856, ch. 161. and the 
 public documents of the United States, recog- 
 nizing that island as one of the guano islands, 
 ought to have been admitted as evidence upon 
 Uie issue whether the island was a guano 
 island. Whiton t. Albany City Int. Co., 109 
 Mass., 34. 
 
 10. Whoever claims the benefit of insur- 
 ance that has been made by another " for ac- 
 count of whom it may concern," must show 
 tliat the person who efi°ected it intended to in- 
 sure the claim.int's interest. Be BoUe e. Pttuu 
 tyltanut Int. Co.. 4 "Whart., 68. And evidence 
 thai the person named in the policy purchased 
 
 and shipped a box of jewelry was not suf& 
 cient. Ibid. 
 
 11. Those who assert that insurance, made 
 "for account of whom it may concern," was 
 intended to embrace their goods, must prove 
 it. Stale e. I^nklia Im. Co., 17 Penn. St, 290. 
 
 12. By the terms of the policy, insurers 
 were not liable unless the loss amounted to 
 seven and a half per cent on the property in- 
 sured. Held, the burden was upon the plaint- 
 iff to show that fact .VerehatUt Mut. Ins. Co. 
 V. WiUoii, 2 Md., 217. 
 
 13. The court below instructed the jury 
 that the bui-den of proving the breach of a 
 certain promissory warranty was upon tlie 
 defendants. Held, error ; for in the contract 
 of insurance, a warranty is a condition or con- 
 tingency, and unless that be pel-formed, there 
 is no contract This holds true v/hether thu 
 warranty related to things past, present, or 
 to come, all which of necessity require in- 
 sured to aver performance, and therefore cast 
 the burden of proving that performance upon 
 insured. There are cases which seem t<j be 
 against this rule, but upon a careflil examina- 
 tion, it will be found that tlie matter decided 
 in them was not a warrant, but representa- 
 tion merely, at least made so by construction, 
 and therefore matter of defense only, the bur- 
 den of which must always rest upon the in- 
 surers (citing Catlin ». Springfield Fire Ins. 
 Co., 1 Sumn., 435; Houghton e. Manufacturers 
 Mutual Fire Ins. Co., 8 Met, 114; Underdill 
 V. Agawam Mutual Fire Ins. Co., 6 Gush., 410; 
 Jones Manufacturing Co. v. Manufacturers 
 Mutual Fire Ins. Co., 8 id., 82.) Wilson e. 
 Hotmpden Fire /iw. Co., 4 R. I., 159. 
 
 14. The burden is upon the plaintiff to show 
 that the difference between the amount 
 claimed and that proven at the trial was the 
 resultof error, and in the absence of proof to 
 maintain that issue, the insured cannot recover. 
 Hoffinan v. WeHern Marine and Fire Ins. Co., 
 1 La. An., 316. 
 
 III. Generaixt. 
 
 1. The onus of impeaching either the juris- 
 diction, or the regularity of the proceedings, 
 or the existence of facts upon which a decree 
 has been pronounced, is upon the party who 
 asserts that they are irregular or insafBcient. 
 Franeii e. Oeean Int. Co., 6 Cow., 404. 
 
 2. The party who holds tlie aflSrmativc of 
 
 433 
 
851 
 
 OPEN POLICY — OTHER INSURANCE. 
 
 852 
 
 When it viijates. 
 
 the Issue cannot recover, if the evidence upon 
 that issue is equally balanced. Roger* v. Trad- 
 ers Ins. Oo., 6 Paige Oh., 583. 
 
 3. Defendant alleged: "The policy had 
 been canceled, and au agent of the company 
 had promised to surrender the note." Held, 
 the burden was on defendant to show that tlie 
 agent was authorized to make the promise; 
 authority to deliver the policies would not 
 confer upon the agent the right to surrender 
 the note. Marblekead Hut. Ins. Co. v. Under- 
 toood, 3 Gray, 210. 
 
 4. When a statute makes a deed or agree- 
 ment or other act void, unless made upon a 
 specified consideration or under specified cir- 
 cumstances, the party claiming under the 
 deed or agreement or act must show that the 
 circumstances existed, under which alone it 
 could have validity. The other party to be 
 affected may rest upon the general prohibition 
 (citing Williams «. Insurance Co. of North 
 America, 9 How. Pr., 365; Sedgwick Stat & 
 Cons. Law, 117 ; Savage o. Medbory, 19 N. T., 
 32). Peoria Marine and fire Itu. Co. o. WaZ- 
 ser, 22 Ind., 73. 
 
 OPEN POLICY. 
 
 (See PouoT.) 
 
 OPIUM, 
 
 (See IsToxicATiHa Dbdikb.) 
 
 OTHER INSURANCE. 
 
 (See DocBLB IssuBAxrcE ; Ebtoppbi.; 'Pstsaaa. kso 
 Agent.) 
 
 I. When it vitiates. 
 
 II. DOES NOT VITIATE. 
 
 ^ III. Qdestions foe the juby. 
 
 rV. 6ENEBAIi,T. 
 
 L When it vitiates. 
 
 1. If the mortgagee was authorized by the 
 mortgagor to make subsequent insurance, it 
 436 
 
 matters not in whose name it was made, it is 
 other insurance if intended to be for the ben- 
 efit of the first insured ; and if the mortgagees 
 cover their own special interest as mortgagees, 
 and the mortgagors agree to pay the premium, 
 and it is effected by the authority of the 
 mortgagors, for their benefit and at their ex- 
 pense, it avoids a policy made to tjhe mort- 
 gagors. Holbrook V. American Ins. Co., 1 Cur- 
 tis. C. C, 193. 
 
 2. Policy to mortgagor assigned to the 
 mortgagee. Held, a policy to the latter, and, 
 though voidable for breach of condition, it 
 avoids another policy to him, which prohib- 
 ited other insurance. Carpenter v. Providence 
 WaslUngUm Int. Co., 16 Pet., 495. 
 
 3. R. and F. agreed with H. that he should 
 hold a schooner as his own property until 
 they should pay certain debts against her, and 
 refund him so much money as would make 
 him and R. owners respectively of seven-six- 
 teenths of the schooner, and F. two-sixteenths. 
 M. procured two policies in his own name, 
 " For account of himself and others, as inter- 
 est may appear," each for $o,5(X); and R pro. 
 cured two others, each |3,000, " For account 
 of himself and M." All of the policies pro- 
 vided: "If prior insurance has been made, 
 then this company shall be answerable only 
 for so much as the prior insurance shall be 
 deficient in covering the loss." The two first 
 warranted, " Insurance shall not be made upon 
 the vessel exceeding $11,000;" and the two 
 last warranted, " Insurance shall not be made 
 upon the vessel exceeding f 10,000." Held, the 
 warranties referred to subsequent, and not 
 prior, inHurance; that the two first did not 
 affect the two last policies, for they were 
 "prior in date;'' that the two last were valid, 
 and therefore were other insurance, and a vio- 
 lation of the warranty; hence insured could 
 not recover on either of the two first. Mvtsey 
 V. Atlas MiU. Ins. Co., 14 N. Y., 79. 
 
 4. K., an insurance broker, was in the habit of 
 obtaining policies for about twenty companies, 
 of whom he received commissions upon such 
 risks as they accepted. He delivered the pol- 
 icies and collected the premiums, among 
 which was the policy in suit, which stipu- 
 lated : " If insured shall make any other in- 
 surance, and shall not, with all reasonable 
 diligence, give notice thereof to this corpora- 
 tion, and have the same indorsed or otherwise 
 acknowledged in writing, the polity shril 
 
853 
 
 OTHER INSURANCE. 
 
 854 
 
 When it vitiates. 
 
 cease." Subsequently, insured increased his 
 stock, and procured another policy tlirough 
 K., of which insurers had not notice till 
 about twenty days after, which was imme- 
 diately after the loss. H«ld, the notice was 
 not given with reasonable diligence, nor was 
 K. a person to whom notice of it ought to 
 have been given, for when he delivered the 
 policy and received the premium, his agency 
 was at an end. MelUn «. Hamilton Fire Ins. 
 Co., 17 N. Y., 609; s. c, 5 Duer, 101. 
 
 5. Stipulated: "To be void if insured shall, 
 hereafter, make any other insurance, and shall 
 not with all reasonable diligence, give notice 
 thereof to the secretary, etc." About four 
 months thereafter, another policy was taken 
 from another company, which stipulated : " In 
 case the insured shall have already made any 
 other insurance not notified to this company, 
 and mentioned in or indorsed upon this policy, 
 this shall be void and of no effect" Neither 
 company had any notice Uiat other insurance 
 was made upon the property-, ffdd, the policy 
 was void, and it was immaterial whether the 
 latter policy was void or voidable. (Selden 
 and Weils, JJ., dissenting). Bigler «. New 
 York Central Ins. Co., 83 N. T., 402; s. c, 20 
 Barb., 635. 
 
 6. Stipulated: "Noticfe of all previous in- 
 surance upon the property insured shall be 
 given and indorsed upon this policy, or other- 
 wise acknowledged by this company in writ- 
 ing, at or before the time of their making in- 
 surance thereon; and in case of subsequent 
 insurance, notice thereof must be given with 
 all reasonable diligence, to the end that it 
 may be indorsed on the policy, subscribed by 
 this company, or otherwise acknowledged in 
 writing." Held, notice of other insurance, 
 given to a person who had not authority to act 
 for the defendant in any way, was not sufli- 
 cient; that where the parties have stipulated 
 for a particular kind of evidence, upon a 
 given question, the court has no power to al- 
 low one of the parties to substitute other ev- 
 idence of the fact. Gilbert v. Phcenix Ins. Co., 
 36 Barb., 373. 
 
 7. The contract provided that other in- 
 surance must not be made upon the property 
 insured, unless such was mentioned in the 
 policy at the time it was issued. Held, parol 
 evidence was not admissible to show that 
 pending the negotiations for the policy, and 
 up to the time of its delivery, insurer had 
 
 notice of the existence of prior insurance and 
 its amount, and that such was to stand and re- 
 main in foree upon the property. Barrett v. 
 Union Mutual fire Ins. Co., 7 Cush., 175. 
 
 8. The company sent to insured notice of 
 an assessment, in which the loss in question 
 was put down, under the title "unadjusted." 
 Held, no waiver of the condition requiring 
 notice of other insurance. Forbes v. Agawam 
 Mutual Fire Ins. Co., 9 Gush., 470. 
 
 9. Company's by-law required consent of 
 the directors, signified in the policy or by 
 indorsement, signed by the secretary, to subse- 
 quent insurance. Held, tlie consent of one 
 director, indorsed upon the application, was 
 not sufficient. Ibid. 
 
 10. Policy stipulated: "If insured shall 
 effect subsequent insurance, and shall not, with 
 all reasonable diligence, give notice of it to 
 this company, and have it indorsed on the 
 policy, or otherwise acknowledged in writing, 
 the policy shall be void." Insured made 
 other insurance, and exhibited memorandum 
 of il to insurer's agent, who was authorized 
 to receive notices, to enter them on his book 
 and indorse them on the policies. This pol- 
 icy was out of the hands of the insured, and 
 the agent told him it would make no differ- 
 ence; that he would enter it on his book. 
 Held, the policy was void. Worcester Bank v. 
 Hartford Fire Ins. Co., 11 Cush., 265. 
 
 11. Policy prohibited further insurance, 
 unless indorsed on the policy at its issue. It 
 was indoi'sed, " Already $5,000 in .^tna and 
 $3,000 in the Conway Mutual." There was 
 in fact no other insurance at that time ; but in- 
 sured subsequently procured other insurance 
 for $8,000 in the Trenton and La Fayette com- 
 panies, of which no indorsement was made. 
 Held, the policy was void. Conway Tool Com- 
 pany V. Hudson River Ins. Co., 13 Cush., 144. 
 
 12. Policy prohibited other insurance, un- 
 less consent given in writing. Insured pro- 
 cured a subsequent valid policy without con- 
 sent. Held, he could not recover. Burt v. 
 People's Mutual Fire Ins. Co., 2 Gray, 397. 
 
 13. S. and P. procured insurance, loss if 
 any payable to J. Policy prohibited other in- 
 surance unless notice should be given, and as- 
 sent of the president obtained in writing. 
 Held, insured could not prove a waiver of the 
 condition ; for that were to substitute verbal 
 in place of written agreements; and even if 
 that could be done, the president's power being 
 
 437 
 
855 
 
 OTHER INSURANCE. 
 
 856 
 
 When it vitiates. 
 
 clearly limited to giving his consent in writ- 
 ing, his parol consent was not binding upon the 
 corporation. Sale v. Mechanics Mut. Ins. Co., 
 6 Gray, 169. 
 
 14. " Further insurance prohibited unless 
 the insured shall with reasonable diligence 
 give notice thereof and have the same in- 
 dorsed, etc." Insured procured another poli- 
 cy, the printed terms of which prohibited 
 other insurance; but the maker indorsed in 
 ■writing, "other insurance permitted without 
 notice." The first insurer had not notice of 
 this other policy until after the fire. Held, the 
 second policy wag a valid insurance, because 
 written indorsement annulled the printed pro- 
 hibition ; and as notice of it was not given un- 
 til after the fire occurred, the first policy was of 
 no effect. Kimball o. Howard Fire Ins. Co., 8 
 Gray, 33. 
 
 1 5. In November and December, 1865 the 
 Columbian Insurance Company insured 
 $24,000 on the bark " Dreadnought," to ex- 
 pire in November, 1866. January, 1866, the 
 company became notoriously insolvent and in- 
 sured proposed to it to cancel their policies 
 and pay the premiums up to that date, but the 
 proposition was rejected. In February, 1866, 
 by a decree of the supreme court of New 
 York, the company was dissolved and receiv- 
 ers appointed. June 36, 1866, insured pro- 
 cui-ed $22,000 on the bark in the Triton, New 
 England and Equitable, and a policy of $7,000 
 from defendant, valuing the bark at $30,000, 
 and stipulating, " If any otlier insurance shall 
 have been made upc>n the bark prior in date 
 to this policy, then this insurer shall be an- 
 swerable only for so much as the amount of 
 such prior insurance may be deficient towards 
 fully covering the property hereby insured. 
 Held, defendant's policy never attached, for 
 there were other policies upon the property in- 
 sured exceeding its agreed value, at the date 
 this policy was made. Byder «. Phanix Ins. 
 Co., 98 Mass., 185. 
 
 16. The 12th section of insurers charter 
 provided: " If there shall be any other insur- 
 ance upon the whole or a part of the property 
 insured, then the policy shall be void, unless 
 the other insurance shall exist with the com- 
 pany's consent indorsed upon the policy, 
 under the hand of the secretary." Ileid, this 
 condition could not be waived, for the act of 
 the legislature put it out of the power of the 
 insurers to insure property otherwise than as 
 
 438 
 
 provided in the charter, and that therefore it 
 was not competent for the insured to prove 
 the instu-er's consent to the other insurance 
 by any evidence other than an indorsement 
 on the policy, under the hand of the secretary 
 of the company. Couch v. City Fire Ins. Co., 
 38 Conn., 181. 
 
 17. Stipulated: "If any other insurance 
 has been, or shall be hereafter, made upon the 
 said property, not consented to in writing 
 hereon, this policy shall be void." Consent 
 was given to make $30,000 other insurance, 
 but other insurance was made exceeding that 
 sum. if «M, the policy was void. Shurtlefv. 
 Phmnix Ins. Go., 57 Me., 137. 
 
 18. The act of incorporation, made part of 
 the contract, prohibited other insurance, tm- 
 less the directors' consent was obtained and 
 indorsed on the policy. Other insurance was 
 obtained, of which notice was not given to the 
 defendants. Held, the policy was void, not- 
 withstanding only two sections of the charter 
 were printed on the back of the policy, nei- 
 ther of which contained the prohibition. 
 Fabgan c. Union Mviual Fire Ins. Co., 83 N. 
 H., 203. 
 
 19. Insured procured a policy from the 
 Niagara Ins. Co., in which it was stipulated: 
 " If insured, or any other person or parties in- 
 terested, shall have existing during the con- 
 tinuance of this policy, any other contract or 
 agreement for insurance, whether valid or not, 
 on the property hereby insured, or any part 
 thereof not consented to by this company in 
 writing, and mentioned in or indorsed upon 
 this policy in writing, tlien this insurance 
 shall be void and of no effect" While this 
 policy was in force insured obtained another 
 from the defendant, which prohibited other 
 insurance unless made by consent of the di- 
 rectors of the last named company, signified 
 by indorsement, signed by the president and 
 secretary. Held, when the plaintiff, without 
 surrendering or canceling the policy in the 
 Niagara Co., procured the defendant's policy, 
 it was a double insurance within the prohibi- 
 tion, and the defendant could not be held lia- 
 ble for the loss. Oee o. Cheshire County Mut. 
 Ins. Co., 55 N. H., 65. 
 
 20. Stipulated : " Insured shall give notice 
 of all additional insurance, and of all changes 
 that may be made in such additional insur- 
 ances. Notice was given of other insurance; 
 $1,000 on buildings, $2,000 on stock and $7,000 
 
857 
 
 OTHER INSURANCE. 
 
 858 
 
 When it -vitiates. 
 
 on machinery. Su1)sequently the other policy 
 was renewed, bat the sum insured was subdi- 
 vided difiFerently, of which notice was not 
 given insurer. Rdd, insurers were released. 
 The notice of additional insarance, without 
 notice as to the changes which had been 
 made, was insufficient. Simpson v. Penntyl- 
 vania Fire /»». Go., 38 Penn. St., 350. 
 
 21. On steamboat, $6,000. Total insurance, 
 $13,000. No policy was issued. But the 
 printed policy pn^hibited other insarance ex- 
 cept such as might be approved and in- 
 dorsed by the company's authorized agent. 
 There were insurances exceeding $13,000. 
 Held, the contract was to be regarded as made 
 upon, and sutgect to the condition contained 
 in the ordinary form of policies used by the 
 company at the time ; that notice of other in- 
 surance was sufficient, if made iu such a way 
 as to indicate that it was intended as a com- 
 pliance with the provisions of those policies. 
 But if the additional insurance was merely 
 spoken of incidentally, in the course of or- 
 dinary conversation, that would not be such 
 a notice as the law required; that what a 
 secretary or clerk of an insurance company 
 might accidentally learn or hear in respect to 
 the other insurance would not be notice bind- 
 ing upon the company. Eureka Ins. Go. v. 
 Robinson, 56 Penn. St., 356. 
 
 22. Stipulated: "The aggregate amount 
 insured in this and other companies shall not 
 exceed two-thirds of its estimated cash value." 
 Valued in the policy at $1,950: $1,300 insur- 
 ance was granted. Improvements were made 
 which increased the value of the building to 
 $4,300. The agent examinetl and reported 
 that the improvements did not increase the 
 risk. Insured procured $1,000 additional in- 
 surance^ and the buildings were accidentally 
 consumed. Held, the value named in the 
 policj- must govern the rights of the parties ; 
 that if the insurance exceeded two-thirds of 
 that value, the contract was void, notwith- 
 standing the premises were, in fact, of much 
 greater value than the sum named. BUiott «. 
 Lycoming Gounty MxO. Ins. Go., 66 Penn. St, 
 23. 
 
 23. A failure to give notice to the insurer 
 of subsequent insurance, in violation of a con- 
 dition, avoids the contract. Harris v. Ohio 
 Ins. Go., Wright, 544; s. c, 5 Ohio, 466; Bat- 
 tails T. Merchants Ins. Go., 3 Rob. (La.), 384. 
 
 24. The charter and by-laws provided: 
 
 " The president and secretary may give leave 
 \o make other insurance." Held, consent 
 given by a director or the secretary was not 
 valid. Stark Gounty Mttt. Ins. Go. «. Hunt, 19 
 Ohio, 149. 
 
 25. D. held goods in store at A. and at B., 
 up<m which he procured separate policies. 
 The policy on the goods at A. prohibited other 
 insurance, but that company consented to 
 transfer the policy to insure goods at B. D. 
 removed the goods from A. to B.,and mingled 
 them with the stock at B. Held, the policy 
 written on goods at B. was other insurance 
 upon the goods removed from A. ; hence, the 
 latter policy was void. Washington Ins. Go. v. 
 Hayes, 17 Ohio St., 433. 
 
 26. Stipulated: "If, without written con- 
 sent hereon, there is any prior or subsequent 
 insurance, this policy shall be void." An- 
 other policy, for $3,000. was made, and about 
 two months after, one Martin, an agent of the 
 insurers, residing in another place, wrote upon 
 it, " other insurance to the amount of $4,000 
 is hereby permitted." Martin did not issue 
 the policy, but it was issued by Betts, the gen- 
 eral agent at Chicago. There was no evidence 
 of any authority in Mai'tin to make the in- 
 dorsement. Held, insured could not recover 
 without showing that Martin had authority to 
 give the consent. Security Ins. Go. c. Fay, 33 
 Mich., 467. 
 
 27. Stipulated: "Other insurance prohib- 
 ited unless consent is given by tlie company 
 in writting." Insured, in his preliminary 
 proofs of loss, stated he had made other in- 
 surance upon the property. Held, fatal to tlie 
 recovery, and the statement in the preliminary 
 pnwfs dispensed with any other proof of the 
 fact. New York Central Ins. Go. v. Watson, 33 
 Mich., 486. 
 
 28. The owner of stock of goods sold 
 them. The vendee procured insurance and 
 assigned the policy, with insurer's consent, to 
 the vendor. It prohibited other insurance, 
 but the vendee obtained other insurance for 
 his own account. Held, the second was void. 
 Neve V. Golumbia Ins. Go., 3 Mcilullen, 330; 
 Leaeitt v. Western Fire and Marine Ins. Go., 
 7 Rob. (La.), 351. 
 
 29. Other insurance prohibited. Insured 
 purchased another stock of goods, upon which 
 there was a policy. He mingled the two 
 stocks, and took an assignment of the last 
 policy. Held, other insurance. Walton v 
 
 429 
 
859 
 
 OTHER INSURANCE. 
 
 860 
 
 When it vitiates. 
 
 Louitiana State Marine and Fire Int. Oo., 2 
 Kob. (La.), 563. 
 
 30. Stipulated : " In case insured shall have 
 already any other insarance not notified to 
 this corporation and mentioned in or indorsed 
 upon this policy, this insurance shall be void 
 and of no effect," Held, a policy in another 
 company on the same property made prior, 
 vfithout giving notice in the manner indicated, 
 released the insurers. Dados v. Citizens 
 Mutual Ins. Co., iS La. An., 332. 
 
 31. Under sec. 2770 of the revised code of 
 Georgia, a second insurance upon the same 
 property, made without the consent of the in- 
 surer, avoids the policy, and it is immaterial 
 whether the second policy is voidable. 
 Lackey v. Georgia Home Ins. Co., 42 Ga., 456. 
 
 32. The policy prohibited other insurance 
 without notice and consent of the insurer: 
 other insurance was made. The fact of giv- 
 ing the notice was not sworn to positively. 
 The person to whom it was alleged the notice 
 had been given testified that he never received 
 it. Held, the evidence did not preponderate 
 in favor of the insured and therefore the judg- 
 ment must be reversed. Illinois Mut. Ins. 
 Co. v. Malloif, 50 111., 419. 
 
 33. Other insurance prohibited unless no- 
 tice given and an indorsement of it made upon 
 the policy. Insured stated that there was an- 
 other policy for $3,000 on the same property, 
 and that it would not be renewed. But it was 
 renewed and no notice was given of it to in- 
 surer. Held, the policy was void. Heitz n. 
 Mound City Mutual Fire and Life Ins. Co., 38 
 Mo., 85. 
 
 84. Stipulated: "If any other insurance 
 has been or shall hereafter be made upon said 
 property not consented to in writing hereon, 
 this policy shall be null and void." Held, if 
 there was prior insurance, the insurer ought 
 to have had notice of it when the policy was 
 issued, so as to decide whether another insur- 
 ance wonld be prudent, but if subsequently 
 made, prompt notice should have been given 
 so as to enable the insurer to elect either to 
 sanction it, or to cancel his own policy; 
 if there were proof that the two policies were 
 simultaneous, still the notice would have been 
 required, though the condition was only for 
 notice of a prior or subsequent insurance. 
 Manhattan Ins. Co. r>. Stein, 5 Bush, 652. 
 
 35. The policy prohibited other insurance, 
 either prior or subsequent. At the time it was 
 430 
 
 made, and at the time of the loss, there was 
 another policy on the property, and this latter 
 policy also prohibited other insurance upon 
 the same property. Held, the first policy was 
 void. Hygum ®. JBtna Ins. Co., 11 Iowa, 21. 
 
 36. Other insurance was prohibited, but 
 there was other insurance made without 
 such consent, of which insurer had not 
 notice until after the loss. Held, the appoint- 
 ment of an appraiser to determine the value 
 of the property destroyed, and the failure to 
 refund the unearned premium from the date 
 of its destruction, was not a waiver of the 
 breach of the condition. Jewett «. Home Ins. 
 Co., 29 Iowa, 562. 
 
 37. Other insurance was prohibited except 
 by consent indorsed on the policy. Three 
 other policies were made upon it, each of 
 which stated that if the interest of the insured 
 in the land upon which the premises stood 
 was a leasehold, the policy should be void, 
 unless such interest was expressly stated. His 
 interest in the land was leasehold, but the 
 three companies treated the policies as valid, 
 and paid the claims. Held, they were other 
 insurance, and, being prohibited by the terms 
 of the contract, no recovery could be had. 
 David a. Hartford Fire Ins. Co., 13 Iowa, 69. 
 
 38. Stipulated : " Notice of any other insur- 
 ance already made, or which shall afterwards 
 be made elsewhere on the same property, shall 
 be given so that a memorandum of it may be 
 indorsed on this policy, otherwise this policy 
 shall be void." Insured told agent she was 
 about to get another policy. Held, notice of 
 an intention to get another policy did not sat- 
 isfy the condition. Healey r>. Imperial Fire 
 Ins. Co., 5 Nev., 268. 
 
 39. Other insurance prohibited. This con- 
 dition was violated. Held, no recovery could 
 be had. Campbell v. .JEtna Ins. Co., Cochran, 
 21. 
 
 40. Other insurance was prohibited unless 
 made with insurers' consent. The father of 
 the insured, without the son's knowledge, paid 
 the premium to another company for another 
 policy, which was not delivered at the time 
 the fire happened, but the insured subsequent- 
 ly accepted from that company payment for 
 the loss. Held, it was other insurance, for the 
 insured had ratified the act of his father, and 
 the first policy was therefore void. Drifoe v. 
 Johnstown Dist. Mut. Ins. Co., 7 U. C. C. P., 55. 
 
 41. Other insurance prohibited. But sepa- 
 
861 
 
 OTHER INSURANCE. 
 
 862 
 
 When it does not vitiate. 
 
 rate sums were insured on the building, on the 
 machinery, and on the stock therein. A sec- 
 ond insurance, -without consent, was effected 
 on the buUding and on the machinery, but 
 none on the stock. Held, the policy upon 
 hnilding, machinery and stock, was wholly 
 void, and it was immaterial that such second 
 insurance was with a foreign company, not 
 caoable of being enforced in Canada. Satnaay 
 Woolen Cloth Co. v. Mutual Fire In». Co., 11 U. 
 C. Q. B., 516. 
 
 42. The defendant pleaded that the policy 
 was assigned to M., who made other insurance 
 without insurer's consent, contrary to a condi- 
 tion contained in the policy. Held, a good 
 plea. Burton o. Qore Ditt. Mut. Ins. Co., 14 U. 
 C. Q. B., 342. 
 
 43. Other insurance was prohibited unless 
 made with insurers' consent. Insured nego- 
 tiated for another policy, and took an interim 
 receipt for the premium. Held, it was other 
 insurance. Hatton v. Beacon Ine. Co., 16 U. C. 
 Q. B., 316. 
 
 44. The defendants pleaded that before and 
 after the making of the policy, plaintiffs pro- 
 cured other insurance, which was never in- 
 dorsed on the policy, and to which insurers 
 never consented. Plaintiff replied equitably, 
 that as to the insurance made prior to defend- 
 ants' policy, the company which made it had 
 become bankrupt, of which notice was given 
 the defendant who granted the policy sued on, 
 and received the premium ; that as to the in- 
 surance made subsequently, plaintiff notified 
 defendants' agent of it, for him to indorse the 
 same or to notify the plaintiff if defendants re- 
 fbsed to consent to it; that notice was never 
 given to plaintiff of the defendants' dissent, 
 and that subsequently the plaintiff was re- 
 quired by defendant to, and did pay, assess- 
 ments on his premium note. Hdd, on de- 
 murrer that the reiilication was bad, for the 
 statute made the policy void under the facts 
 pleaded. MerriU c. Niagara Bitt. Ins. Co., 18 
 U. C. Q. B., 529. 
 
 45. Defendant pleaded other insurance with- 
 out notice or indorsement thereof on their pol- 
 icy, contrary to the conditions of the contract. 
 Replication that the policy was effected 
 through N.; that when the second insurance 
 was procured, plaintiff had not received de- 
 fendant's policy, and had no knowledge of the 
 prohibition ; that when he became aware of it, 
 be gave notice of it to defendant's agent, and 
 
 caused it to be canceled ; that the said agent 
 informed him it was not necessary to have 
 said other insurance noted on tlie policy ; that 
 plaintiff then procured other insurance, of 
 which notice was given to defendants who in- 
 dorsed tlie same and returned the said policy 
 to plaintiff as a valid and subsisting contract. 
 Held, the replication was no answer to the 
 plea. Jacobt v. Squiiable Int. Co., 18 U. C. Q. 
 B., 14; 8. c, 17 id., 85; s. c, 18 id., 373; s. c, 
 19 id., 250; 19 id., 257. 
 
 II. "When it does not vitiate. 
 
 1. Waiver. The policy prohibited other 
 insurance unless made witJi insurers consent. 
 There was other insurance upon the property. 
 Held, if the agent of insurer, at the time the 
 policy was made, knew of the other insurance, 
 the condition prohibiting other insurance was 
 waived, or the insurer would be estopped from 
 setting up tlie other insurance as a defense to 
 the action. Oeib «. International Ins. Co., . 1 
 Dil. Cir. C, 443. 
 
 8. Made by stranger. Insured held pos- 
 session under a contract for a deed. Policy 
 prohibited other insurance, unless with insur- 
 er's consent. The liolder of the legal estate 
 made other insurance without notice to this 
 company. Held, no defense to this action. 
 .JStna Ins. Co. o. Tjfler, 16 Wend., 385 ; s. c, 12 
 id., 507. 
 
 3. Sufficient notice of. Stipulated: "In- 
 sured shall, with all reasonable diligence, give 
 notice of other insurance, and have the same 
 acknowledged in writing. He gave notice of 
 $6,000 other insurance in one company ; but 
 this was a mistake, for it was made by two 
 companies, equal sums each. Held, it was 
 enough for the insurers to be informed of the 
 true amount. Benjamin v. Saratoga Mutual 
 Fire Ins. Co., 17 N. Y., 415. 
 
 4. — A prior insurance was mentioned in 
 the application, and was renewed when it ex- 
 pired, of which renewal, notice was not given 
 insurers. Held, not a violation of the condi- 
 tion which required notice of other insurance. 
 Broan v. Cattaraugus Mut. Ins. Co., 18 N. Y., 
 385. 
 
 5. — Stipulated : " If insured shall hereafter 
 make other insurance, and not witli due dili- 
 gence give notice thereof, and have the same 
 indorsed upon this policy, or otherwise ac- 
 knowledged in writing, this insurance shaU 
 
 431 
 
863 
 
 OTHER INSUKANCE. 
 
 When it does not vitiate. 
 
 be void." Upon the face of the policy the fol- 
 lowing was written: "Privilege for $4,500 
 other insurance." Held, insured was not 
 bound to give notice of the names and amounts 
 of the other insurance. Benedict d. Ocean Ins. 
 Co., 31 N. T., 389 ; s. c, 1 Daly, 8. 
 
 6. Made by stranger. Stipulated : " To be 
 void if other insurance shall I)e made without 
 consent in writing." Another person inter- 
 ested in the property procured insurance, and 
 no indorsement was made upon the policy; 
 but insurers had notice from persons other 
 than insured, ffeld, the condition did not ap- 
 ply to insurance made by persons other than 
 the insured ; that the notice of it, though not 
 given by the insured, was sufficient. Rowley 
 V. Empire Fire Ins. Co., 4 Abb. Dec, 131 ; s. 
 c, 86 N. Y., 550; 42 N. Y. (3 Keyes), 557. 
 
 7. Void or voidable policy. Stipulated: 
 " Other insurance permitted without no- 
 tice till required, and if any other insur- 
 ance has been, or shall hereafter be made 
 on said property and not consented to, etc. 
 then and in every such case, the policy 
 shall be null and void. In case of loss, the 
 insured shall not recover any greater portion 
 of the loss sustained than the amount hereby in- 
 sured shall bear to the whole amount insured." 
 At the time the policy was made, there was 
 another policy in favor of insured, which 
 covered this and other property to the amount 
 of $4,500, " Loss, if any, payable to K." But 
 that policy prohibited other insurance unless 
 made with the assent of that company, and 
 that company never had notice of the de- 
 fendant's policy, but insurers had notice of 
 that policy. Held, the defendant was liable 
 for the whole amount of the loss, for there 
 was in law no other insurance on the proper- 
 ty mentioned in defendant's policy. Hand v. 
 Williamthurgh City Fire Ins. Co., 57 N. Y., 41. 
 
 8. Sufficient notice of. Stipulated : " If 
 there be already any other insurance not no- 
 tified to this corporation, the policy shall be 
 of no effect. W. was employed to solicit risks 
 and negotiate contracts with any and every- 
 body who might wish to insure. Notice of 
 other insurance was given to him orally. 
 Held, he was a proper person to receive it. 
 McEwen ». Montgomery County Mut. Ins. Co., 
 5 Hill, 101. 
 
 9. What is an approval of, The pol- 
 icy prohibited other insurance unless made 
 with consent of insurer. Insured gave 
 
 132 
 
 notice of other insurance. Insurer's sec- 
 retaiy replied, " We have received notice of 
 additional insurance." Held, the plaint- 
 iff had the right to assume that it was ap- 
 proved, for the rule is well established that 
 where the promise admits of more meanings 
 than one, it is to be performed in that 
 which the promisor apprehended the prom- 
 isee received it. Potter «. Ontario Mut. Ins. 
 Co., 5 Hill, 147. 
 
 10. Sufficient notice of. A verbal notice of 
 other insurance, given to a person authorized 
 to make surveys and receive applications, was 
 held sufficient. Sexton v. Montgomery Mut. Ins. 
 Co., 9 Barb., 191. 
 
 1 1. What is an approval of. Policy pro- 
 vided : " If any other insurance shall be 
 made, notice thereof shall be given by insured 
 to insurer that the same may be indorsed on 
 said policy, or otherwise acknowledged by 
 them in writing." Insured procured other in- 
 surance, and gave notice of it, which was ac- 
 knowledged but approval was refused except 
 upon condition that the sum recoverable by 
 virtue of tlie policy should not together with 
 all insurance thereon, exceed two-thirds of the 
 cash value of the property insured. Held, in- 
 surer had no right to impose a condition or to 
 prescribe terms not contained in the policy. 
 Westldke v. St. Lawrence County Mut. Ins. Co., 
 14 Barb., 306. 
 
 12. Not other insurance. Stipulated: 
 "In case any other policy of insurance has been 
 or shall be issued, covering the whole or any 
 portion of the property insured by this com- 
 pany, the policy shall be void unless notice 
 thereof be given, and the company's assent 
 thereto obtained in writing." This policy was 
 "upon stock in trade, consisting chiefly of 
 ready made clothing, at 146 River St., Troy." 
 Defendants consented that the goods should 
 be removed to the store adjoining No. 148, at 
 which time and place insured had a large quan- 
 tity of goods of the same kind, insured in 
 another company, of which other insurance 
 defendant did not have any notice. Held, not 
 other insurance. Dissenting, Hogeboom J. 
 Vote v. Hamilton Mut. Ins. Co., 39 Barb., 302. 
 
 1 H. Estoppel. The policy prohibited other 
 insurance, unless with notice to the in- 
 surers, and with their consent indorsed upon 
 the policy. Other insurance was made of 
 which notice was not given. The policy ex- 
 pired, application was made to insurers' agent 
 
865 
 
 OTHER INSURANCE. 
 
 866 
 
 When it does not vitiate. 
 
 to renew it, and he was then informed of the 
 existence of the other insurances, and aftPr 
 being so informed he made and delivered the 
 renewal. Held, error to exclude evidence of 
 the foregoing facts, for if proven, they would 
 estop the defendant to insist upon the alleged 
 forefeiture. Carroll ». Charter Oak Ins Co., 
 38 Barb., 402; s. c, 40; id., 292; 1 Abb. Dec, 
 316. 
 
 14. Not other insurance. B. contracted 
 to purchase of A., and subsequently contracted 
 to sell to C, and procured policy which stip- 
 ulated against the making of other insurance, 
 unless consented to by insurers. C. procured 
 A. to make the deed to him, of which B. had 
 no knowledge. C. procured insurance upon 
 the same property. Held, not other insurance 
 within the meaning of the parties (citing Mu- 
 tual Safety Ins. Co. v. Hone, 2 N. T., 285). 
 Acer V. Merchants Ins. Co., 57 Barb., 68. 
 
 15. —Policy to N., on property owned by 
 him and G. jointly. Insurer's agent was re- 
 quested to correct it so that it would cover 
 tlieir interests jointly. He made an attempt 
 so to do. Other insurance was prohibited, 
 but N. made other insurance upon his individ- 
 ual property, not upon that owned by N. and 
 G. jointly. Held, it was not other insurance 
 within the meaning of the contract (citing 
 Godin D. London Ass. Co., 1 Burr., 489; Mu- 
 tual Safety Ins. Co. «. Hone, 2 N. T., 235, 240; 
 ^tna Ins. C. v. Tyler, 16 Wend., 885). Pitney 
 V. Glens Falls Ins. Co., 61 Barb., 335. 
 
 IB. Waiver. On stock of liquors and 
 spirits. Stipulated : " If insured shall have, 
 or shall hereafter make, any other insurance 
 on the property insured, without consent of 
 this company written hereon, this policy shall 
 be void." He procured another policy from 
 another company, on his stock of liquors and 
 spirits stored in the building described. Held, 
 it was other insurance within the meaning of 
 the policy, but insured ought to have been 
 permitted to prove that insurer's agent waived 
 the prohibition. The court here refused to 
 follow the Massachusetts cases, which are di- 
 rectly against this ruling. Whitudl v. Putnam 
 Fire Ins. Co., 6 Lans., 166. 
 
 17. — The policy prohibited other insur- 
 ance, but defendant's local agent examined 
 other policies procured by insured upon the 
 same property. Held, a waiver of the condi- 
 tion. Peehner v. Phanix Ins. Co., 6 Lans., 
 411. 
 
 28 
 
 18. Voidable policy. Other insurance pro- 
 hibited. Insured procured another policy, 
 but it was to be void in case of prior insur- 
 ance without notice to insurers. Notice was 
 not given to them. Held, the second policy 
 was not other insurance within the meaning 
 of the prohibition ; hence the first policy was 
 valid. Jackson ». Massachusetts Mutual Fire 
 Ins. Co., 23 Pick., 418. 
 
 19. Sufficient consent. Stipulated: "All 
 policies which may issue from this company 
 to cover property previously insured shall be 
 void, unless such previous insurance be ex- 
 pressed in the policy at the time it issued." 
 The following memorandum was written on 
 the face of the policy : " $5,000 insured by ' 
 the W. Ins. Co." There was but $4,700 in- 
 sured on the building by that company. Held, 
 no defense to the action. Liscom v. Boston 
 Mutual Fire Ins. Co., 9 Met., 203. 
 
 20. Voidable policy. Insured procured an- 
 other policy on the same property; but it was 
 not binding in law, and could not have been 
 enforced. Held, not other insurance. Glavk 
 V. New England Fire Ins. Co., 6 Cush., 342. 
 
 2 1 . Other insurance prohibited. There was 
 another policy upon the same premises, but it 
 provided that any increase of risk should 
 avoid it. Insured proved that the risk was 
 increased. Hdd, it was not other insurance. 
 Jackson v. Farmers Mutual Fire Ins. Co., 5 
 Gray, 52. 
 
 22. Not other insurance. A third person 
 interested in the property had previously ob- 
 tained insurance in the name and for the ben- 
 efit of insured herein ; but they were ignorant 
 of tjhis fact, and procured this insurance. Held, 
 not other insurance within the prohibiting 
 terms of the policy. Nichols v. Fayette Mutual 
 Fire Ins. Co., 1 Allen, 63. 
 
 23. Voidable policy. Insured procured an- 
 other policy, contrary to the conditions of this. 
 It was invalid, but the maker of it had paid 
 insured the claim. Held, it was not other in- 
 surance within the meaning of the condition. 
 Whether the money paid under it could be 
 recalled was a question not necessary to be 
 settled in the present case. Hardy v. Union 
 Mutual Fire Ins. Co., 4 Alien, 217. 
 
 24. Sufficient consent. The policy recited 
 on its face that prior insurance had been made. 
 Held, sufficient, notwithstanding it provided 
 that the directors' consent must be signified 
 by indorsement, signed by the president and 
 
 433 
 
867 
 
 OTHER INSURANCE. 
 
 868 
 
 When it does not vitiate. 
 
 secretary ; and where the name of the com- 
 pany with which the prior insurance was 
 made had not been given, but the amount was 
 named, it may be renewed in that or any other 
 company without further notice. Firit Bap- 
 tist Society v. SiUsborough Mutual Fire Ins. 
 Co., 19 N. H., 580. 
 
 25. Sufficient notice of. The insured is 
 not hound to state the particulars of the 
 amount of other insurance, unless specially 
 required to do so. McMahon «. Portsmouth 
 Mutual Fire Ins. Co., 22 N. H., 15. 
 
 26. Not other insurance. Policy provided : 
 " If insurance upon any house or building 
 shall be or subsist in said company, ur in any 
 other office, or from or by any other person or 
 persons, the insurance made by this company 
 sliall become void, unless such double insur- 
 ance subsist with the assent of the directors, 
 signified by indorsement, signed by president 
 and secretary." Insured made a bond to con- 
 vey an undivided half, and the obligees re- 
 turned another, by which they agreed to keep 
 one-half of the premises in repair and good 
 condition for business, and if destroyed by 
 fire, water, or otherwise, to rebuild. It was 
 also agreed that the obligor in the first bond 
 should insure the property at the expense of 
 all, and that the insurance money that might 
 be. received should be applied to rebuilding. 
 ffeld, the contract between the insured and 
 his obligees was not another or double insur- 
 ance. Burbank v. Rockingha/m Mutual Fire 
 Ins. Go., 24 N. H., 550. 
 
 .27. Estoppel. Condition that notice of 
 other insurance made upon the property in- 
 sured must be given to the secretary, and the 
 consent of the directors obtained. Insured 
 obtained other insurance in another company ; 
 one person being secretary of both companies, 
 who issued both policies. The same persons 
 were directors of both companies, and exam- 
 ined the applications made by the insured. 
 Held, insurer was estopped from saying that 
 they had no notice of the second insurance, 
 or that they had not consented to it. Qoodall 
 ■B. New England Mutual Fire Ins. Co., 25 N. H., 
 169. 
 
 28. Not other insurance. Action upon a 
 premium note. The charter provided that the 
 policy should be void if insurance in any 
 other company should be made upon ihe same 
 without consent of directors indorsed upon 
 policy. When defendant applied for the in- 
 434 
 
 surance, his property was then insured in the 
 New Hampshire Mutual, which policy he sur- 
 rendered after receiving the plaintiff's. No 
 indorsement was made upon it in compliance 
 with the charter, but there was evidence given 
 tending to show that the plaintiffs policy was 
 not to fake effect until the surrender of the 
 New Hampshire Mutual. Ileld, the plaintiff's 
 policy was valid, and the defendant liable to 
 pay assessments on the note. Atlantic Fire 
 Ins. Co. V. OoodaU, 29 JS. H., 182. 
 
 29. — Action on a premium note given for a 
 policy, which stipulated that it should be void 
 if double insurance subsisted without the con- 
 sent of the directors, given in writing. At 
 the time the policy was taken, the agent was 
 told that there was another policy upon the 
 same property, which would be surrendered 
 aad canceled so soon as this should be deliv- 
 ered. Soon after this was delivered, the maker 
 of the premium note surrendered the other 
 policy, and requested that it be canceled from 
 January 22d, at noon ; but the letter did not 
 reach its destination till February 1st follow- 
 ing, on which day the policy was canceled. 
 Held, the policy was a valid consideration for 
 the premium note. Atlantic Mut. Ins. Co. v. 
 GoodaU, 35 N. H., 328. 
 
 30. Voidable policy. Stipulated: "To be 
 void, if any subsequent insurance shall bo 
 made upon the property without consent." 
 A subsequent policy was made, but it was to 
 be void if any other insurance was made 
 without the consent of that company indorsed 
 upon that policy. No indorsement was made 
 upon it in respect to the other. Held, the sec- 
 ond policy was not other insurance, for it is 
 absurd to hold that to be an insurance which 
 can be available only if the insurance com- 
 pany chooses to be bound. OdU v. Belknap 
 County Ins. Co., 41 N. H., 170. 
 
 31. Waiver. Insured had two policies; 
 one in the M. and another in the N. Company. 
 The M. Co. stopped payment. Insured sur- 
 rendered that policy to the agent and received 
 the unearned premium, the policy being re- 
 turned to the company; defendant's agent, 
 having knowledge of that surrender, made the 
 policy in suit, which prohibited other insur- 
 ance unless consented to by indorsement. 
 Subsequently the N. Company became insol- 
 vent, and defendant's agent made another 
 policy in the G. Company, to take the place of 
 the N. Co. No indorsement was made at any 
 
869 
 
 OTHER INSURANCE. 
 
 870 
 
 When it does not vitiate. 
 
 time upon the defendant's policy consenting 
 to such other insurances. Held, tlie jury had 
 a right to regard the knowledge of defend- 
 ant's agent as an agreement to waive the 
 printed condition forbidding otlier insurance, 
 hence defendant was estopped to make, any 
 objection in that respect, notwithstanding the 
 agent never communicated that knowledge to 
 his principal. Hadley v. If mo Hampshire Fire 
 Ins. Co., 55 N. H., 110. 
 
 32. SuiHcient notice. The policy required 
 notice of other insurance. Held-, a written 
 notice was not necessary ; a verbal notice was 
 sufficient, and it may be given to any agent of 
 the company; other insurance prima facie 
 void, of which no notice was given, did not 
 defeat a recovery. Sehenek o. Mereer OovMy 
 MutucU Fire Ins. Co., 34 N. J., 447. 
 
 33. Voidable policy. Stipulated : "Persons 
 insured must give notice of any other insur- 
 ance made on their behalf." Held, notice 
 must be given of subsequent as well as prior 
 insurance, but if the other policy could not 
 have been enforced, it is not other insurance 
 within the intention of the parties. Staeey «. 
 FrarMin Fire Ins. Co., 3 W. & S., 506. 
 
 34. Not other insurance. Policy on 
 building required notice of other insurance 
 on the same property. It was indorsed: 
 "Other insurance permitted without notice 
 till required." There was another policy on 
 " building, machinery, shafting, belting, tools, 
 lathes, planes, stock, finished and unfinished." 
 Held, not other insurance. Sloat n. Royai Ins. 
 Co., 49 Penn. St., 14. 
 
 35. Void policy. Stipulated : " The aggre- 
 gate amount insured shall not exceed two 
 thirds of the estimated cash value. Held, 
 policies, void ab initio, did not constitute in- 
 surance; but policies that were at anytime 
 valid were to be treated as such. Mitchell e. 
 Lycoming Ins. Go., 51 Penn. St, 403. 
 
 36. Waiver. Stipulated: "To be void in 
 case other insurance shall be made and not 
 immediately notified to the secretary." In- 
 surer's agent was asked to take $4,000 on the 
 risk. He f irwarded the application to his 
 principals, and stated, if they would not take 
 the whole, he would place f 1,000 in another 
 company, of which he was agent. His prin- 
 cipals issued a policy for $3,000, and he ac- 
 cordingly placed $1,000 in the other company. 
 Eight months thereafter the agent indorsed 
 consent to make the other policy. Held, evi- 
 
 dence that insurers had notice of the addi- 
 tional insurance; that they could not retain 
 the premium and wait till a loss occurred to 
 make objection to the other insurance. 
 Farmers Mut. Ins. Oo. •». Taylor, 73 Penn. St., 
 343. 
 
 37. Not other insurance. On store. Stip- 
 ulated : " No person shall be allowed to in- 
 sure the same, or any other property connected 
 with it, in any otlier company or at any other 
 office." He subsequently insured his stock iu 
 another company. Held, the stock was not 
 connected with the store ; hence there was not 
 other insurance. Jones v. Maine Mut. Ins. Go., 
 18 Me., 155. 
 
 38. Voidable policy. A second policy, 
 upon the same property, which is invalid, 
 does not defeat the first, notwithstanding the 
 makers of the second have paid the sum 
 claimed under it. The by-law required other 
 insurance to be indorsed upon the policy when 
 it was issued. Held, sufficient, if the indorse- 
 ment was made afterwards and approved. 
 Philbrook c. JTew England Mut. Ins. Co., 37 
 Me., 137. 
 
 39. Not other insurance. Stipulated : " In 
 case any other contract of insurance upon 
 the property hereby insured, whether such 
 other contract shall be valid or not, as against 
 the parties thereto, the insured shall not, in 
 any case, be entitled to recover any greater 
 portion of the loss than the .amount hereby 
 insured shall bear to the whole amount in- 
 sured on said property." The plaintiff, as ex- 
 ecutor of W., insured a mortgagee's interest 
 in certain buildings and machinery, and an- 
 other mortgagee made other insurance upon 
 the same in another company. Held, the stip- 
 ulatitm was limited to other insurance, to 
 which insured could resort for part of his 
 indemnity; it was not intended to apply to 
 policies made by other persons upon the same 
 property. Fox v. Phmnix Fire Ins. Co., 53 
 Me., 333. 
 
 40. AVaiver. The policy prohibited other 
 insurance. It appeared insurer's agent had 
 notice of other insurance, but neglected to 
 indorse it on the policy. Held-, no defense in 
 a court of equity. National Ins. Go. o. Crane, 
 16 Md., 360. 
 
 41. Not other insurance. Stipulated: "The 
 insured shall not be entitled to demand or re- 
 cover any greater portion of the loss or dam- 
 age sustained than the amount hereby insured 
 
 435 
 
871 
 
 OTHER INSURANCE. 
 
 872 
 
 When it doea not vitiate. 
 
 shall bear to the whole amount insured. And 
 it shall not cover goods held in trust or on 
 commission." Insured procured other poli- 
 cies, covering his own property and goods 
 held in trust and on commission. Held, the 
 other policies did not constitute a double in- 
 surance. Baltimore Fire Ins. Co. ■». Limey, 20 
 Md.,,20. 
 
 42. Waiver. Stipulated: "If any other 
 insurance has been, or shall hereafter be made 
 on said property, without the consent of this 
 company in writing indorsed hereon, this 
 policy shall be void." Insured applied 
 to this company for the whole amount 
 of insurance, and it applied to the Maryland 
 company to share the risk. The Maryland 
 company, at the request of this company, 
 made the other policy upon the premises, but 
 consent was not indorsed on this policy. Held, 
 it was sufficient for the purposes of this case 
 to say that the other policy was neither prior 
 nor subsequent insurance, but contemporane- 
 ous and uno flatu with it. Washington Fire 
 Ins. Co. V. Davison, 30 Md., 91. 
 
 43. Not other insnrance. " To be void if 
 any other insurance be made upon the interest 
 hereby insured." She was seized at the suit 
 of a creditor, who directed the sheriff to pro- 
 cure insurance upon her. Held, not within 
 the prohibition. Marigny v. Home MtU. Ins. 
 Co., 13 La. An., 838. 
 
 44. — " On freight, warranted no other in- 
 surance shall be made on this property." 
 After the execution of the policy, the master, 
 a part owner,, drew a bill for 7,800 francs, to 
 the order of Cavaroc, upon the consignees of 
 the ship at Bordeaux, who accepted the draft 
 and insured the freight for their own protec- 
 tion, without any instructions from the plaint- 
 iff or any other person whatever. Held, 
 insured were not responsible for the acts of 
 those who were not their agents, but were act- 
 ing for their own individual interest; it was 
 not other insurance within the meaning of the 
 contract. Williams v. Crescent Mut. Ins. Co., 
 15 La. An., 651. 
 
 45. Sufficient consent. Insurers' agent 
 contracted to deliver a regular policy. Held, 
 the term " regular policy " meant that per- 
 mission to make prior as well as subsequent 
 insurance should be indorsed upon it; that as 
 insurers had never made any policy at all, nor 
 attempted to comply with the agreement, the 
 fact that other insurance was made upon the 
 
 same property could not affect the right of 
 the plaintiff to recover. Dayton Ins. Go. v. 
 Kelly, 34 Ohio St., 345. 
 
 46. No other insnrance. B. sold the 
 premises to F., and retained a lien, conditioned 
 that F. should keep them insured, loss, if 
 any, payable to B. The defendant made in- 
 surance for F. Stipulated : " In case the in- 
 sured or assigns shall make other insurance 
 without consent of this company, the policy 
 shall be void." F. conveyed to M., and re- 
 tained a lien conditioned that M. should keep 
 the property insured, loss, if any, payable to 
 F., and M. Insured. Held, not other insurance 
 within the meaning of the contract, for the 
 word " assigns " meant assignees of the policy, 
 and not assignees of the property. Bates v. 
 Commercial Ins. Co., 1 Cin. Sup. Ct., 533. 
 
 47. — G. owned three houses, together with 
 other property. He devised one moiety to D., 
 in ti'ust for his daughter, and the other to M., 
 in trust for five children of H. In dividing 
 the estate, the thi'ee houses became the prop- 
 erty of the children of H., one of whom the 
 plaintiff married, and she became entitled to 
 two-fifths of the houses. H. made insurance, 
 $1,333.33 on each house, amounting in all to 
 |4,000. The policy stipulated : " In case other 
 insurance shall be made on their behalf on 
 the same, it must be indorsed on the policy, 
 in which case each office shall be liable to the 
 payment of a ratable proportion of any loss 
 which may be sustained, and unless such no- 
 tice be given, the insured shall not be entitled 
 to recover." The trustee made insurance upon 
 the same premises for the bepefit of the other 
 beneficiaries. Held, it was not other insur- 
 ance within the meaning of the contract. 
 Franklin Marine and Fire Ina. Co. d. Drake, 
 3 B. Mon., 47. 
 
 48. Waiver. M. was agent for two insur- 
 ance companies. Upon application to him 
 he made a policy of $.^,000 upon certain prop- 
 erty, stipulated: "Other insurance shall not 
 be made upon the same without notice and 
 consent written hereon." At a subsequent 
 date insured applied to the same agent for 
 other insurance upon the same property, which 
 he granted in the other company ; but he did 
 not indorse consent to it upon the first policy. 
 Heifl, the contract did not require notice ol 
 prior insurance to be made in writing, but 
 only that the assent of the company should so 
 appear. Held, also, the condition could be 
 
873 
 
 OTHER INSURANCE. 
 
 874 
 
 When it does not vitiate. 
 
 waived, and the -waiver could be established 
 by parol proof of any notice of the other in- 
 surance prior to the delivery of this policy ; 
 and the delivery of policy subsequently 
 \>Titten, was a written assent to the other in- 
 surance. Kenton Ins. Co. v. Shea, 6 Bush, 174 ; 
 Von Bories v. United Life, Fire and Marine 
 Ins. Co., 8 id., 133. 
 
 49. — Stipulated : " If there is, or shall here- 
 after be, any further insurance on the prop- 
 ertj- hereby insured without notice to this 
 company, and its consent thereto written here- 
 on, then this policy shall be void." One per- 
 son was the agent of this and another com- 
 pany, and in that other company other insur- 
 ance was made by the same agent, but he 
 never indorsed consent to the other insurance. 
 Held, this company had the right to cancel 
 the policy after notice of a violation of any 
 of its conditions by returning a proper por- 
 tion of the premium ; good faith and fair deal- 
 ing required the company, if it intended to en- 
 force the forfeiture, to adopt the necessary 
 measures for that purpose within a reasonable 
 time after notice of the forfeiture; a failure to 
 do so was a waiver of the forfeiture. Van, 
 Bories v. United Life, Fire and Marine Ins. 
 Co., 8 Bush, 138. 
 
 50. — The policy prohibited other insurance 
 without insurer's consent indorsed upon it. 
 There was other insurance without consent 
 indorsed. Held, if notice of other insurance 
 was given to the agent of insurer, who effected 
 the policy, it was notice to the principal, and 
 failure to object to it was a waiver of the pro- 
 hibition (overruling Hutchinson v. Western 
 Ins. Co., 21 Mo., 97). Hat/ward v. National 
 Ins. Co., 52 Mo., 181. 
 
 51. Constrnction. On stock of goods. The 
 18th section of the company's charter, a part 
 of the contract, prohibited insurance by the 
 company on any house or building then in- 
 sured, unless consent were given by directors 
 indorsed on policy and signed by president 
 and secretary. EM, the prohibition did not 
 apply. Illinois Mutual Fire Ins. Co. v. CNeile, 
 13 111., 89. 
 
 58. Waiver. Stipulated: If other insurance 
 shall be made upon the same property witlfout 
 insurer's consent, the policy shall be void. 
 There was other insurance without consent, 
 but it had expired before the loss occurred. 
 Held, it did not affect the right of the insured 
 to recover. New England Fire and Marine Ins. 
 
 Co. 'D. Schettler, 88 111., 166. And at the time 
 the policy was made the agent of insured 
 told the agent of insurer of the existence of 
 the other insurance. Held, that insured should 
 not be permitted to suffer for the neglect of 
 insurer's agent to indorse the notice on the 
 policy. Ibid. 
 
 53. Snfiicient notice of. The same agents 
 represented all the insurers and all the policies 
 were delivered to insured by the same agents. 
 Held, it was notice to each company of all the 
 otlier policies. Insurance Company of North 
 America v. McDowell, 50 111., 130. 
 
 54. Made by a stranger. Policy to mort- 
 gagee. Other insurance prohibited. The 
 mortgagor made other insurance without in- 
 surer's consent. Held, the prohibition was 
 limited to the acts of the insured; that other 
 insurance made by the mortgagor was no 
 violation of the condition. Norwich Fire Ins. 
 Co., 'D. Boomer, 53 111., 442. 
 
 55. Estoppel. Stipulated: "If insured shall 
 procure any other insurance, and shall not 
 with all reasonable diligence give notice 
 thereof, and have the same indorsed hereou, 
 this insurance shall be void." Application 
 was made to defendant's agents for $10,000 
 insurance, who said the rules of the company 
 would not allow them to take but $5,000, and 
 they offered to procure the balance. Plaintiff 
 procured it himself, and notified the agents uf 
 that fact the following day after which this 
 policy was issued, and the premium paid. 
 Held, the defendant was estopped to set up 
 the fact that other insurance was not indorsed. 
 Horwitz c. Equitable Mut. Ins. Co., 40 Mo., 
 557 
 
 56. Constrnction. Stipulated: "Insured 
 shall not make other insurance exceeding 
 $20,000." Insured was notified by one of the 
 companies, that its policy would be canceled 
 at a certain time. He procured other in- 
 surance in its place. The cancellation was 
 not effected until a month after the other was 
 made; but for some time prior to the loss the 
 whole amount of other insurance had been 
 greatly reduced, and did not then exceed 
 $13,000. Held, the insurer was not discharged. 
 Obermeyer ®. Olobe Mut. Ins. Co., 43 Mo., 573. 
 
 57. Sufficient notice of. The same agent 
 issued both policies and both prohibited other 
 insurance without consent indorsed thereon. 
 Held, the object of the condition was to re- 
 quire notice of the additional policy, and if 
 
 437 
 
875 
 
 OTHER INSURANCE. 
 
 8T6 
 
 When it does not vitiate. 
 
 notice was given to the agent it was sufficient. 
 Jiuisell V. State Ins.Oo., 55 Mo., 585. 
 
 58. Not other insurance. Stipulated: "To 
 be void if insured shall have made, or shall 
 hereafter make, any other insurance on the 
 property, without consent of the insurer, in- 
 dorsed on this policy." During the negotia- 
 tion for this policy, the agent was told that a 
 prior policy existed, which would be canceled 
 as soon as this became effectual, and that this 
 was made to take the place of that. There 
 was another policy subsequently made by an- 
 other company, but it did not appear that the 
 premium had been paid, or that it had ever 
 been delivered. Held, there was no other in- 
 surance. Continental Ins. Oo. v. Sorton, 28 
 Mich., 173. 
 
 59. Waiver. Stipulated: "Other insur- 
 ance shall not be made without notice to, and 
 consent of this company, in writing." The 
 plaintiff averred that the defendant had due 
 notice of the other insurance; that the policy 
 in suit was delivered to defendant's agent for 
 the purpose of having consent indorsed upon 
 it, and that other insurance was made at the 
 agent's request. Seld, this condition, like any 
 other, could be waived ; that insurer was es- 
 topped by the acts of its agent to insist that 
 consent to the other insurance had not been 
 indorsed. Cobb v. Ins. Co. of North America, 
 11 Kan., 93. 
 
 60. — Other insurance prohibited. The evi- 
 dence was conflicting as to whether defend- 
 ant's agent knew of and consented to the ad- 
 ditional insurance, before the loss. But after 
 the loss the agent informed the defendant of 
 it, and with full knowledge of the facts, de- 
 fendant reqiiired insured to furnish plans and 
 specifications of the buildings destroyed, 
 which was done at great expense to the insured. 
 Held, a waiver of the forfeiture, for a party 
 cannot occupy inconsistent positions. Where 
 one has an election between inconsistent 
 courses, he will be confined to that which he 
 first adopts. Any decisive act, done with a 
 knowledge of his rights and of the fact, deter- 
 mines his election, and works an estoppel. 
 Webster v. Phmnix Ins. Co., 86 Wis., 67. 
 
 61. Voidable policy. Other insurance, 
 whether prior or subsequent, unless made 
 with this company's consent written hereon, 
 shall render this policy void. Application 
 was made to defendant's agent, December 18, 
 1867, who agreed to deliver the policy on that 
 
 438 
 
 day. Insured had not received it on the 21st, 
 when he applied to the agent of another com- 
 pany to insure the property, paid the premium, 
 and the agent agreed to make and deliver a 
 policy so soon as he should receive blank pol- 
 icies from his principal. These contained a 
 clause making them void in case prior or sub- 
 sequent insurance should be made without 
 written consent indorsed upon them. Defend- 
 ant's agent delivered the policy in suit on the 
 22d, and received payment of the premium. 
 No information was given as to the transac- 
 tion of insured with the other agent. Meld, 
 the second contract was not other insurance, 
 if that company treated it as void after it had 
 notice of the making of the first policy. A 
 policy which prohibits the making of other 
 insurance upon the subject insured, without 
 notice and consent of the insurer, is voidable 
 only, if the prohibition is violated ; and if suit 
 is brought upon a policy made upon the same 
 subject at a time prior, which also prohibits 
 the making of other insurance upon the same 
 subject, the subsequent policy is not other in- 
 surance, because it is invalid, and such policy 
 is no violation of the condition contained in 
 the prior policy. Subbard v. Hartford Fire 
 Ins. Co., 33 Iowa, 325. 
 
 62. Waiver. Stipulated: " Other insurance 
 shall not be made, except by consent of the 
 company, in writing." The company's agent, 
 who had authority to make and revoke con- 
 tracts, was notified that insured intended to 
 get additional insurance, to which he con- 
 sented, but did not indorse it on the policy. 
 The policy expired by its own terms, and was 
 renewed by the same agent. Held, if the 
 agent was informed of, and did in fact consent 
 to the other insurance, the policy was not void. 
 Carrugi v. Atlantic Vire Ins. Co., 40 Ga., 135. 
 
 63. Estoppel. Stipulated: "The policy 
 shall be void if other insurance shall be made 
 upon the property insured, unless the compa- 
 ny's consent is obtained in writing hereon." 
 Held, an agent authorized to make and revoke 
 contracts of insurance was a proper person to 
 receive notice of other insurance ; and if such 
 notice were given, the company was bound to- 
 have it indorsed, or to refuse to contract, and 
 a failure so to do estopped insurers from set- 
 ting up other insurance as a defense to the ac- 
 tion. Planter's Mut. Ins. Co. v. Lyons, 38 Tex., 
 258. 
 
 64. Not other insnrance. £3,000 on wool 
 
877 
 
 OTHER INSURANCE. 
 
 878 
 
 Questions tor the jury. 
 
 in all or any shed or store, on station, or in 
 transit by land only, or in any shed or store on 
 any wharf in Sidney, until placed on ship. 
 Stipulated: " No claim shall he recoverable if 
 the property insured be previously or subse- 
 quently insured elsewhere, unless the particu- 
 lars of such insurance be notified to the com- 
 pany in writing." Insured subsequently 
 effected insurance, £16,500 upon wool, at and 
 from the river Hunter to Sydney, per ships and 
 steamers, and thence per ship or ships to Lon- 
 don, including the risk of craft from the time 
 the wool is first water borne, and of tranship- 
 ment or landing, and reshipment at Sydney. 
 The practice at Sydney was for persons acting 
 as stevedores to take the wool to their stores, 
 press it and deliver it to the ship, the steve- 
 dore's receipt being equivalent to the mate's 
 receipt, which would entitle the holder to a 
 bill of lading. The plaintiff's wool was car- 
 ried by several steamers from the river Hunter 
 to Sydney, and was taken by plaintiff's agent 
 to his own store for the purpose of being 
 weighed ; and he entered into a contract for 
 its conveyance to London. It was then taken 
 from his warehouse to the warehouse of the 
 ship's stevedore, and the usual receipts were 
 given for it. While it was there, a part of it 
 was destroyed by fire. Seld, the marine in- 
 surance policy did not attach while the wool 
 was in the warehouse of the stevedore, and 
 was not other insurance within the meaning 
 of the defendant's policy. Australian Agricul- 
 tural Co. V. Saunders, 10 L. R C. P., 668; af- 
 firming 8. c. in the court below. 
 
 65. — On goods his own, in trust or on com- 
 mission, deposited in certain warehouses. 
 Stipulated: "A failure to indorse other insur- 
 ance shall vitiate the policy." P. deposited in 
 the warehouses a quantity of wheat then cov- 
 ered by a floating policy, of which notice was 
 not given to the insurers, but the policy ex- 
 pired before the loss occurred. Held, no de- 
 fense to the action. Donaldson v. Manchester 
 Ins. Co., 14 C. C. S., 601. 
 
 66. — Stipulated : " If there be an insurance 
 at any other office on the property insured at 
 this office, notice of such other insurance 
 must be given, and the, same with the several 
 amounts thereof, must be stated either in the 
 policy, or by indorsement upon it, oth- 
 erwisc the insurance with this office is void." 
 A person of whom insured had made large 
 purchases, insured £500 on the stock, and sub- 
 
 sequently assigned the policy to the insured, 
 and on its expiration, it was renewed for the 
 insured, and was in force when the fire hap. 
 pened. Rdd, not a breach of the condition. 
 UcDowell o. Beacon Fire Ins. Co., 1 U. C. C. 
 P., 311. 
 
 67. Sufficient notice. By the terms of the 
 policy, other insurance was forbidden, unless 
 made with notice to, and eimsent of, insurers. 
 The policy gave permission to make £800 
 other insurance in the ^Etna. Subsequently, 
 insured gave notice that he would procure 
 other insurance in the Equitable, to the 
 amount of £1,200, which was never done ; but 
 he procured £1,000 in the Beacon, and none 
 was ever made in the Mtaa.. Held, the condi- 
 tion did not require the name of the company 
 in which the other insurance might be made 
 to be stated, therefore a mistake in that respect 
 could not affect the validity of the policy. 
 Osser f>. Prmtincial Ins. Co , 12 U. C. 0. P., 141. 
 
 68. Voidable policy. Other insurance pro- 
 hibited. There was other insurance in the 
 name of another person, in a company in the 
 state of Maine, of which notice was not given 
 the defendant. Held, in order to avoid the de- 
 fendant's policy, it must appear that by tlie 
 law of Maine insured could recover upon the 
 policy issued by the Maine company. Me. 
 LacMan v. uS!tna Ins. Co., 4 Allen (N. B.), 173. 
 
 III. Questions fok the jury. 
 
 1. "Other insurance prohibited, except 
 with insurer's assent." Ten days before the 
 fire, insured made application to the agent of 
 another company, for a policy upon the same 
 iwoperty, to whom he paid the premium. But 
 that agent was not authorized to issue p(^Hcies. 
 At the time the fire occurred, the policy had 
 been made, but not delivered, nor had insured 
 received notice that his application had been 
 accepted. Held, the attention of the jury 
 ought to have been directed to the question, 
 whether any notice of the other insurance had 
 been given, and not limited to the inquiry, 
 whether the circumstances justified the delay. 
 Inland Ins. Co. v. Stauffer, 33 Penn. St., 397. 
 2. " On stock of tobacco and cigars on stor- 
 age in the tobacco shop of Albert Michelson." 
 He procured insurance of |4,000 on his own 
 stock from another company, and subsequent- 
 ly, while that policy was in force, bought the 
 property tliat he held on storage, and took an 
 
 439 
 
879 
 
 OVERLOADING— PAID UP POLICY. 
 
 880 
 
 Miscellaneous . 
 
 assignment of the policy on it, the insurer of 
 it assenting. Ileld, if the goods which were 
 on storage after purchase became part of the 
 insured stock by intermixture, tJien there was 
 other insurance upon it; but this was a ques- 
 tion of fact for the jury to determine. Peoria 
 Ma/rine and fire Ins. Go. n. Anapovo, 45 III., 
 86; B. c, 51 id., 383. 
 
 IV. Gekeeallt. 
 
 Stipulated : " If the same property has been, 
 or shall be, insured by any other company, 
 without an indorsement thereof on this policy, 
 it shall be void." Seld, a violation of the 
 . condition rendered tlie policy voidable, or to 
 be treated as void, and did not work an abso- 
 lute nullity as to either party in all events. 
 Insurer might by contract or by conduct waive 
 the right to exoneration, and become estopped 
 from enforcing the condition; but assenting 
 to an appraisement of the damaged property 
 could not operate as a waiver of the forfeit- 
 ure. Boer v. Phoenix Ina. Co., 4 Bush. 242. 
 
 OVEELOADING. 
 
 (See Seawobthiness.) 
 
 1. "Warranted not to load more than her 
 registered tonnage with lead, copper, marble, 
 coal, slate, ore, salt, stone, brick, grain, or iron, 
 either or all on any one passage." The regis- 
 tered tonnage was 1,285_ tons. She took at 
 Liverpool 1,064 tons of iron, 6 tons brick and 
 238 tons of cannel coal, an excess of 23 tons 
 over her registered tonnage. A loss occurred. 
 Insurers paid it in ignorance of the fact that 
 the load exceeded tlie registered tonnage. The 
 288 tons of coal was stowed as dunnage, but 
 it was carried at fifty-one shillings per ton 
 freight, and delivered at the port of destina- 
 tion. Held, if the coal could be regarded as 
 dunnage, there was no breach of the warranty ; 
 but that it could not be so regarded, for some 
 portions of cargo may be selected and used 
 for trimming and settling the ship, which in 
 a loose and popular sense are called ballast, 
 but they are not ballast in a legal and proper 
 sense; and if a part of the cargo which paid 
 freight was used to perform the office of dun- 
 nage, it was not legally or properly dunnage ; 
 410 
 
 hence the excess over the registered tonnage 
 was a breach of the warranty. But Clifford , 
 Chase and Swain, JJ., dissented. Insurance 
 Co. V. Thwing, 13 "Wall., 672. 
 
 2. " On ship, warranted not to load more 
 than her registered tonnage, with lead, marble, 
 coal, slate, copper ore, salt, stone, bricks, 
 grain or iron, either or all, on any one passage, 
 and not to carry guano or lime." Her regis- 
 tered tonnage was 1,270 tons. She took on at 
 Liverpool 1,084 tons of iron, 6 tons of brick, 
 238 tons cannel coal. The cannel coal was 
 used as dunnage, and had that not been used, 
 it would have been necessary to have pur- 
 chased planks for that purpose. Upon the 
 top of the coal was placed a flooring of five 
 inch joists, upon which the cargo was stowed. 
 A bill of lading was signed for the coal, and 
 freight was paid on it. Held, the intention of 
 the warranty was to forbid the loading of a 
 greater cargo than the ship was properly 
 fitted to receive; and although it was found 
 that the coal was a suitable and proper article 
 for dunnage, the mere fact that freight was 
 paid upon it did not make it cargo within the 
 meaning of the warranty. Thwing n. Great 
 Western Ins. Go., 103 Mass., 401. 
 
 3. Warranted not to load more than her 
 registered tonnage with coal. She loaded 
 more than her registered tonnage with patent 
 fuel. Meld, a breach of the warranty. Moai- 
 a/rd n. Great Western Ins. Co., 109 Mass., 384. 
 
 PAID, UP POLICY. 
 
 (See Wipe's Polios.) 
 
 The policy stipulated that after two annual 
 payments, if the insured wish to discontinue, 
 the company will issue a paid up policy for as 
 many tenths of the sum insured as there have 
 been annual premiums paid in cash. June 
 20, 1868, she paid $432.40 in cash, and deliv- 
 ered to the company her note for $212.25, due 
 in twelve months, the two sums being the 
 annual premium. On the same date, 1869, she 
 repeated tlie payment and note ; and April 5, ' 
 1870, she notified the company of her inten- 
 tion to discontinue further payments, and 
 asked for a paid up policy for $3,000, being 
 two-tenths of the sum insured, which the 
 company refused until the two notes should 
 
881 
 
 PAROL CONTRACTS TO INSURE. 
 
 When valid. 
 
 be paid in cash. Held, she was not entitled to 
 a decree for a paid up policy until she satisfied 
 the notes. Moses v. Brooklyn Life Int. Co., 50 
 Ga., 196. 
 
 \ 
 
 PAROL CONTRACTS TO INSURE. 
 
 I. WHSatVAUD. 
 II. INTAIJI). 
 
 I. When vaud. 
 
 1. Insnrance companies can make agree- 
 ments to insure, and these need not be in 
 ■writing notwithstanding the statute law pro- 
 vides that insurance companies can make 
 valid policies only when attested by the signa- 
 tures of president and secretary. Oommereial 
 Mutual Marine In*. Co. o. Union Mutual Ma- 
 rine Ins. Co., 19 How., 318; 3 Curtis, 534. 
 
 2. The same clanse of the charter of an in- 
 fnrance company which authorized the presi- 
 dent and directors to make insnrance against 
 fire, provided that such contracts, bargains, 
 agreements, policies, and other instruments 
 as might be necessary should be in writing or 
 in print, and under the seal of tlie corpora- 
 tion, signed by the president, and attested by 
 the secretary. Held, it referred only to exe- 
 cuted contracts or policies of insurance, and 
 not to preliminary agreements to insure which 
 precede the execution of the formal instru- 
 ment Insurance Go. v. Colt, 30 Wall., 560. 
 
 3. The company's charter provided: "That 
 all the conditions of policies issued by said 
 company shall be printed or written on the 
 face thereof." also " A president or vice-presi- 
 dent shall be selected, either of whom with 
 the secretary or actuary shall sign the policies 
 or contracts made by order of the board of 
 directors." General statutes of Missouri, in 
 force at the time the charier was granted, pro- 
 vided "parol contracts may be binding on 
 aggregate corporations if made by an agent 
 duly antliorized by a corporate vote, or under 
 the general regulations of the corporation, 
 and contracts may be implied on the part of 
 sach corporations ftora their corporate acts or 
 those of an agent whose powers are of a gen- 
 eral character." Held, a parol contract to in- 
 
 sure was valid. Hening v. United States Ins. 
 Co., a Dil. Cir. C, 36. 
 
 4. A parol conti'act for insurance made by 
 an agent is valid, and a failure to issue a 
 policy after payment of the premium is no 
 defense to the action. Ide v. Phoinix Ins. Co., 
 a Biss., 833. 
 
 6. An agent autliorized to receive premiums 
 and to make agreements to insure, to be bind- 
 ing upon the company as of the date of the 
 receipt of the premium, on condition that the 
 premium shall be received and the rate recog- 
 nized by the company, and that the company 
 shall be otherwise satisfied with the risk. Held, 
 the company had the right to judge whether 
 the agreement of the *gent to insure corres- 
 ponded with the instructions given him, but 
 that right was confined within those limits; 
 the company could not arbitrarily refuse to 
 subscribe a policy when every prerequisite by 
 themselves prescribed had been fairly and 
 honestly complied with. And when the agent 
 presents a case, having received the premium, 
 the prima facie implication is that the com- 
 pany shall act upon it. If they decline to act, 
 and fail to point out any objection, the pre- 
 sumption is that none exists within the true 
 intent of the proviso, and the company is 
 liable for the loss, although the agent had not 
 forwarded the premium nor received a policy 
 at the time the property was destroyed. Per- 
 kins V. Washington Ins. Co., 4 Cow., 645. 
 
 6. Defendant authorized W. to receive pro- 
 posals for insurance in Batavia and vicinity, 
 to fix rates of premium, to receive money sui)- 
 ject to such instructions as from time to timo 
 might be given him ; accompanied by instruc- 
 tions to bind the company during the pleasure 
 of its general agent, to an amount not exceed- 
 ing f 10,000 upon alternate buildings and their 
 contents; furnished him with blank applica- 
 tions for insurance, and blank certificates, to 
 be filled up and delivered to persons contract- 
 ing, the application to be sent to the com- 
 pany's general agent, to be by him confirmed 
 or rejected. A policy to be by him issued 
 upon it, or the applicatiou to be rejected, re- 
 turned to agent witli instructions to him to 
 return the premium; the agreement to insure 
 to be binding until rejected by the general 
 agent. October 30, 1864, plaintiflf applied to 
 W. for insurance, $5,000 on brewery buildings, 
 to cover his interest as mortgagee for one year. 
 W. accepted the risk at two and a half per 
 
 441 
 
883 
 
 PAROL CONTRACTS TO INSURE. 
 
 884 
 
 When valid. 
 
 cent. Four days thereafter, plaintiff informed 
 W. that he had become the owner of tlie prop- 
 erty, and If the policy had not been made, to 
 ' make it to him as owner, to which W. as- 
 sented. Plaintiff frequently called upon W. 
 to get the policy, and was always told that it 
 had not arrived, but that he need give himself 
 no trouble about it, that he was as much in- 
 sured as if he had possession of the policy. 
 Nothing further was done until after the build- 
 ings were consumed, January 24, 1865. W. 
 never sent the application to the general agent ; 
 no premium was paid. It was also proved 
 that between October 15 and 20, 1864, defend- 
 ants then had a risk upon the same premises 
 for other persons, which was canceled by the 
 company's order, and the policy surrendered 
 because of a rumored attempt to fire the 
 premises. Held, as a parol contract, it 
 was valid; that the agent had authority to 
 bind the company until it decided to reject 
 the risk; that the applicant could not hasten 
 the act of the company ; he could only wait in 
 good faith ; and he certainly might wait from 
 October to January. Fish v. Liverpool, London 
 and Globe Ins. Co., 44 N. T., 538. 
 
 7. The evidence tended to show that C, 
 agent of the defendant, had authority to nego- 
 tiate contracts of insur ance, agree upon all the 
 terms, to fill up and deliver poll cies ; being fur- 
 nished by defendant with blanks for that pur- 
 pose, signed by the president and secretary. 
 He agreed, November 23, 1871, to make a pol- 
 icy upon the premises for $1,000 for a period 
 of three years, the premium to be " what the 
 property was rated at." No policy was made, 
 January 13, 1872, when the building was con- 
 sumed by fire. HM, it was not a parol 
 agreement to insure for three years, but an 
 agreement to make and deliver a policy. Tlie 
 amount insured was the damage for a breach 
 of the contract. Angell v. Hartford Fire Ins. 
 Go., 59 N. Y., 171. 
 
 8. The tenth section of the defendant's char- 
 ter, provided: "Policies of insurance and 
 other contracts, founded thereon, thereafter to 
 be m.ide or entered Into by the said corpora- 
 tion, though not under seal, if signed by the 
 president and countersigned by the secretary, 
 shall be binding and obligatory upon said 
 corporation ; " but the first section conferred 
 power to contract and to be contracted with, 
 and the second section declared that the cor- 
 poration should have power to make contracts 
 
 442 
 
 of insurance with any person or persons. 
 Held, the tenth section did not operate as a 
 limit on the general powers given in the first 
 and second section, that they might contract 
 in modes other than those mentioned in the 
 tenth section, hence a parol agreement to in- 
 sure or to renew a policy was authorized by 
 the charter. First Baptist Church ■». Brooklyn, 
 Fire Ins. Co., 19 N. Y., 305 ; s. c, 18 Barb., 69. 
 
 9. B. was furnished with policies and cer- 
 tificates of renewal, signed in blank by the 
 company's officers, but not to be valid till 
 countersigned by him. He was authorized to 
 agree upon and settle the terms of insurance, 
 to accept risks, and to insert the subject in-, 
 sured, and the term insured, in the blanks 
 mentioned. Held, he had authority to mak,e 
 a parol agreement for the defendant to insure, 
 which was valid, notwithstanding he neither 
 received the premium nor made the policy or 
 renewal. Post v. .^tna Ins. Co., 43 Barb., 
 351. 
 
 10. The plaintiff claimed a^ agreement to 
 insure a certain stock and building to a 
 stated amount for a definite period of time, 
 and at a given rate of premium. The parties 
 contemplated the making of a policy; one 
 was made and tendered, but it was subject to 
 the ratification of the agent, and he had not 
 ratified it when it was tendered. Held, unless 
 the defendants waived that condition when 
 they tendered it, they could not escape from 
 the continuing obligations of the oral contract. 
 Xelly ». Commonwealth Ins. Co., 10 Bos., 82. 
 
 1 1. B., an insurance agent at Boston, acted 
 for the defendant. I. asked him to take the 
 risk. B. replied, he thought he could take it in 
 the Farmers and Mechanics and in the Fire- 
 men's. He directed I. to furnish an applica- 
 tion and survey. They were furnished, and 
 B. agreed to take f 6,000, one-half in each 
 company at one and a half per cent, for one 
 year. Commissions to be divided between the 
 agents, five per cent to each. The act of in- 
 corporation required contracts to be by " pol- 
 icies, signed by the president, etc." HM, 
 the provision in the charter requiring con- 
 tracts to be in writing cannot, in the absence of 
 words of restriction, be construed to limit the 
 powers of the corporation, or to prevent them 
 from making contracts which were williin 
 the ordinary scope of their chartered powers 
 (citing Mechanics Bank a. Bank of Columbia, 
 Wheat., 326; Bank of Columbia v. Patterson, 
 
885 
 
 PAROL CONTRACTS TO INSURE. 
 
 886 
 
 When valid. 
 
 7 Cranoh, 299; Bank of United States «. 
 Dandridge, 13 Wlieat., 69; New England 
 Mut. Ins. Co. V. DeWolf, 8 Pick., 56; Fosters. 
 Essex Bank, 17 Mass., 497 ; Taylor v. Merch- 
 ants Fire Ins. Co., 9 How., 390 ; Commercial 
 Mutual Marine Ins. Co. v. Union Mutual Fire 
 Ins. Co., 19 How., 318). Saniom v. Firemen's 
 Ins. Co., 16 Gray, 448. 
 
 12. Insurers' charter provided: "All poli- 
 cies or contracts of insurance shall be sub- 
 scribed by the president, or other officer des- 
 ignated for that purpose by the board of di- 
 rectors, and attested by the secretary, and 
 being so attested, shall be obligatory upon the 
 company." But a former section of the char- 
 ter declared: " The company shall be capable 
 generally, to do and perform all things rela- 
 tive to the object of the association; " and 
 tliat object was to make insurance contracts. 
 Sdd, the former section of the charter applied 
 to formal instruments only, which were to be 
 signed in the manner indicated ; but tjie com- 
 pany still had power to make agreements to in- 
 sure, and these were binding, notwithstanding 
 the policy had not been made or signed. Day- 
 ton Ins. Go. V. Kelly, 34 Ohio St., 345. 
 
 13. The Kentucky Ins. Co. insured certain 
 cotton against the perils of navigation, from 
 Columbus to New York; also against loss by 
 fire while it remain at the landing awaiting 
 transhipment at Appalachicola. That com- 
 pany reinsured witli the Security Ins. Co.; 
 both contracts rested wholly in parol. A por- 
 tion of the cotton was consumed by fire at the 
 landing, before any of the policies were made, 
 and the owners adjusted it with their insurers, 
 who paid the loss. Held, oral contracts to in- 
 sure will be enforced in equity, even though 
 insurers' charter required all contracts to be in 
 writing. Security Fire Ins. Co. v. Kentucky 
 Marine and Fire Ins. Co., 7 Bush, 81. 
 
 14. The company's charter provided: "All 
 policies and contracts of insurance which may 
 be made or entered into by said corporation, 
 sh.ill be subscribed by the president or the 
 president pro tern, and attested by the secretary, 
 and being so signed and attested, shall be 
 binding and obligatory on said corporation 
 without the seal thereof." Held, the words, 
 " all policies or contracts of insurance," im- 
 port executed policies, and not executory con- 
 tracts for policies. Security Fire Ins. Co. v. 
 Kentucky Marine and Fire Ins. Co., 7 Bush, 81. 
 
 1 5. The insurer accepted a risk by writing 
 
 on the application: "Taken at three per cent, 
 premium." Held, the same rights and liabili- 
 ties followed as if a formal policy had been 
 executed. Woodruff v. Columbus Ins. Co., 5 
 La. An., 697. 
 
 16. Insurers alleged that they were a corpo- 
 ration created by the laws of the state of Con- 
 necticut, and by that law all policies and other 
 contracts were to be made in writing, signed 
 by the president and countersigned by tlie 
 secretary; that no policy or other contract in 
 writing was ever granted to the complainant, 
 signed by the president and countersigned by 
 the secretary. Seld, corporations take by im- 
 plication all the reasonable modes of execu- 
 tion which a natural person may adopt, by 
 the exercise of similar powers. That general 
 autliority to a corporation, to engage in the 
 business of insurance, carries to it the power 
 that a natural person in tlie same bnsiness 
 would have; hence, a body corporate can 
 make a parol contract of insurance, unless 
 plainly denied the power, by the statute which 
 created it, and this corporation was not denied 
 the right to enter into parol agreements to in- 
 sure (citing Constant v. Allegheny Ins. Co., 
 3 Wall. Jr., 313; Cole v. Green, 6 M. & G., 873; 
 Myres v. Keystone Ins. Co., 27 Penn. St., 368. 
 New England Ins. Go. v. Robinson, 35 Ind., 536. 
 
 17. Two rules of the corporation were 
 pleaded : First, the premium shall be paid in 
 conformity to the rules of the company before 
 the policy is issued, and the president and 
 secretary shaU each he liable for Uie amount 
 of premium delivered at the office of the com- 
 pany; second, a part of any annual premium 
 may be taken on one or more notes on inter- 
 est, but evei-y such note shall be made paya- 
 ble before or at the beginning of the period 
 of the risk for which the note is given, so that 
 the company shall not run the risk for any 
 time for which the premium shall not have 
 been actually paid." Held, notice of the first 
 rule did not make it a part of the contract; 
 and, if there was nothing in the charter to 
 prevent, it was competent for the corporation 
 to make a contract in violation of its own 
 rules. New England Life Ins. Co. v. Hasbrook, 
 32 Ind., 447. 
 
 18. An oral agreement upon sufficient con- 
 sideration to insure goods against loss by fire 
 that shall occur between two points specified, 
 entered into in this state with a party who has 
 an insurable interest in tliem, is valid. Mobile 
 
 443 
 
887 
 
 PAROL CONTRACTS TO INSURE. 
 
 888 
 
 When not valid. 
 
 Marine Dock anA Ins. Co. v. McMillan, 31 Ala., 
 711. 
 
 1 9. Plaintiff applied to insurers' agents for 
 insurance upon a quantity of pig iron, from 
 Milwaukee to Cleveland, which was accepted 
 by the agent at a specified rate of premium, 
 insured to giVe notice from time to time as 
 the iron should be shipped, and the name of 
 the vessel, all of which was done. Held, if 
 the agents were authorized to make the con- 
 tract, the defendant was liable. NortJiwestern, 
 Ir<m Go. n. .^tna Ins. (Jo^ 23 Wis., 160; s. c, 
 21 id.-, 458. 
 
 20. The policy was not delivered. Held, 
 competent to prove by parol the nature of the 
 agreement MilXs t. Albion, Ins. Co., 4 C. C. S., 
 575. 
 
 21. The Albion Fire and Life Ins. Ck)., in- 
 corporated iu England, with head o£Bce at 
 London, maintained agents in different parts 
 of the country; one at Edinburg. M., owner 
 of the steamboat R. B., plying between the 
 Clyde and Liverpool, applied to the agent at 
 Edinburg for £5,000 insurance on her; the 
 agent gave a receipt for the premium, and 
 agreed that a policy should be prepared at 
 London and delivered to insured. No policy 
 was ever delivered. The next year a renewal 
 receipt was given, referring to a policy by num- 
 ber. It seems the Albion made their own pol- 
 icy for £8,000, and procured another for £2,000. 
 She was destroyed by fire while at sea. A pol- 
 icy was then tendered, containing a clause ex- 
 empting insurer from loss by fire while the 
 vessel should be at sea. Insurer alleged that 
 they were restrained by 6 Geo. I, ch. 18, from 
 taking the risk of fire. Held, the right of the 
 company to make policies in Scotland need 
 not be decided. It appeared the company 
 was in the constant practice of taking fire 
 risks in, Scotland, therefore judgment was 
 given for the loss. Mills v. Albion Ins. Co., 6 
 8. &D., 409; 8. c, 5 id., 930. 
 
 22. The plaintiff declared that defendants, 
 in consideration of certain premium paid, 
 agreed to insure plaintiff against loss by fire 
 on certain property described, to the amount 
 of £1,500 until notified to the contrary, subject 
 to the conditions contained in the policies 
 usually issued by the defendant in like cases. 
 Averment that plaintiff had performed all 
 things on his part to be performed; that the 
 property had been consumed. Beld, the 
 plaintiff's best remedy would be in equity, 
 
 444 
 
 under the circumstances of the case, or he 
 might have an action at law for failure to de- 
 liver the policy, if the terms of the agreement 
 were fully settled by the parties. Jones v. 
 Provincial Ins. Co., 16 U. 0. Q. B., 477. 
 
 11. When not valid. 
 
 1. Policy on steamboat. She was sold by 
 virtue of a decree of courts and the interest of 
 the insured divested. Insured asked a surren- 
 der of the premium note, ofiftsring to pay the 
 premium earned, which insurers refused to 
 deliver, but said, if the boat should again 
 come to be the property of the insured, either 
 by purchase or compromise, during the term 
 insured, insurers would waive the forfeiture 
 created by the judicial sale, and the policy 
 should continue to the end of the term. In- 
 sured repurchased the vessel, and was sole 
 owner at the time of the loss, which occurred 
 within the term insured. Seld, a policy of 
 insurance must be in writing; that a waiver 
 of any conditions upon which it is granted 
 must also be in writing; that the policy was 
 at an end by virtue of the judicial sale; that 
 it could not be revived or made to reattach 
 except by an agreement in writing. Gockerill 
 0. Cincinnati Mtd. Ins. Co., 16 Ohio, 148; over- 
 ruled by Dayton Ins. Co. v. Kelly, 24 Ohio St., 
 345. 
 
 2. Bill to compel the payment of a loss on 
 a vessel for which no policy had been issued. 
 The evidence was conflicting as to whether 
 any contract had been completed between the 
 parties. Held, the bill must be dismissed. 
 Suydam v. GolunUms Ins. Co., 18 Ohio, 459. 
 
 3. The plaintiff claimed an oral agreement 
 to insure, but the court held there was not suf- 
 ficient evidence of the agent's authority to 
 bind the principal. Hartford Fire Ins. Co. v. 
 Wilcox, 57 111., 180. 
 
 4. The bill stipulated that D., an insurancb 
 broker, negotiated with L., the defendant':j 
 agent, for insurance on certain property, 
 $5,000 from October 8, 1871, to October 8, 
 1872, at one per cent premium, to be paid on 
 demand, the policy to be written in due course 
 of business. The premises were burned on 
 the following day. The defendant's agent de- 
 nied that he agreed to make the contract 
 Held, the bill must be dismissed because the 
 evidence did not preponderate in favor of the 
 complainsint Dinning v. Phanix Ins. Co., 68 
 111., 414. 
 
889 
 
 PAPERS— PARTICULAR ATERAGE AND PARTIAL LOSS. 
 
 890 
 
 Definitioii of — What ia partial loss on ship — What is uot partial loss on ship. 
 
 5. The act of incorporation and by-laws re- 
 quired all the policies to be in -writing, and 
 this action was brought upon a verbal agree- 
 ment Seid, the action could not be main- 
 tained. Helming v. United States Ina. Oo., 47 
 Mo., 425. 
 
 6. The contract of insurance, whether origi- 
 nal or renewed, must be in writing, under 
 sec. 2794 of the Code (citing Simonton v. Liv- 
 erpool, London and Globe Ins. Co., 51 Ga., 76). 
 Croghan v. Underwriters Agency, 53 Ga., 109 . 
 
 7. The company's charter provided that pol- 
 icies issued by the company should be under 
 the seal of the corporation. Held, an unsealed 
 policy could not be given in evidence. i»»- 
 dauer «. Delaware Mutual Safety Ins. Go., 13 
 Ark., 461. 
 
 PAPERS. 
 
 (See EmnNci; Pbooi^ or Loss.) 
 
 PARTICULAR AVERAGE AND PAR- 
 TIAL LOSS. 
 
 (See Om.THiBD Nkv pob Ou>; WABBAirrzi) Fbib 
 PBoa Atsbaob.) 
 
 I. DEFnsrrnoN of. 
 II. What is paktial loss on ship 
 
 III. NOT PAKTIAL LOSS ON SHIP. 
 
 rV. PAKTIAL LOSS OF CAKGO. 
 
 V. Of PAKTICtJLAR ATEKAGE ON CARGO. 
 
 (a) What is. 
 
 (b) not. 
 
 VI. ROTiES POK ASOEKTAINING THE PAKTICU- 
 LAB ATERAGE. 
 
 I. Definition of. 
 
 Partial loss includes both generaj and par- 
 ticular average, and particular average in- 
 cludes all partial losses except general. Wads- 
 worth V. Pacific Ins. Oo., 4 Wend., 84. 
 
 II. "What is paktial loss on ship. 
 
 1. Damages sustained at sea, repaired and 
 made good by purchasers, are particular aver- 
 age. Brookes v.Oriental Ins. Co., 7 Pick., 259. 
 
 2. After a vessel is repaired and restored by 
 
 insurers to insured, he may maintain an ac- 
 tion to recover as for a partial loss, deficien- 
 cies discovered after lestoration. Jieynolds v. 
 Ocean Ins. Co., 22 Pick., 191. 
 
 3. In estimating the amount of a partial 
 loss on vessel, if she has received a strain 
 which alters her shape so that she cannot be 
 perfectly repaired without rebuilding, and her 
 value is thereby diminished, the insurer on 
 ship is liable to the extent of tlie. diminished 
 value, the result of the strain, which is to be 
 added to the cost of repairs, and this, not- 
 withstanding the repairs made rendered her 
 seaworthy, and she was insured at the same 
 premium and valuation as before the injury. 
 Giles V. Eagle Ins. Co., 2 Met., 140. 
 
 4. In assessing damages where the loss is 
 barratrous, if the master has sold portions of 
 the ship's tackle, furniture, supplies and out- 
 fits, all the losses consequent are charges 
 against the insurer who assumes the risk of 
 barratry. Lawton v. Sun Mut. Ins. Co., 3 
 Cnsh., 500. 
 
 5. " Warranted free from average under ten 
 per cent" She was valued at $15,000, and in- 
 sured for $8,000. An accident occurred by 
 which she was broken and sunk. Held, ex- 
 penses incurred for the mere purpose of get- 
 ting up the boat for the purpose of repairing 
 her were not general average, because there 
 was no common danger and no motive for a 
 common benefit; they were particular aver- 
 age, and were to be added to the expense of 
 materials and repairs made, in order to ascer- 
 tain the amount ef the particular average loss ; 
 and every expense in which the cargo was not 
 interested, whether for wages, provisions ex- 
 pended while the boat was being taken to 
 place of repairs, and while she was being re- 
 paired, if undertaken solely for the purpose 
 of putting the boat in a.situation for repairs, 
 was particular average. Firemen's Ins. Co. v. 
 Fitihugh, 4 B. Mon., 160. 
 
 III. What is not partial loss on 
 ship. 
 
 On boat (valued) for one year. She struck 
 and commenced leaking. The cargo was 
 transferred to keel boats; and she was pro- 
 ceeding to a place where repairs could be 
 made, when she struck a second time and was 
 run ashore, but filled with water. The crew 
 and extra hands raised her, and by continued 
 
 445 
 
891 
 
 PARTICULAE AVERAGE AND PARTIAL LOSS. 
 
 892 
 
 What is paxtaal loss of cargo, etc — Rules for ac^'usting the particular average. 
 
 pumping she reached dock. Held, the wages 
 and provisions for the crew were not a loss to 
 be borne by the insurers of the boat, for the 
 insured was bound to keep a competent crew 
 on board, who were bound to exert themselves 
 to the utmost tor the safety of the boat, which 
 excludes any implication that insurer should 
 pay for such services. May v. Delaware Ins. 
 Co., 19 Penn. St., 312. And though the policy 
 permits a recovery for the labor of the factors 
 and servants of the insured in preserving the 
 boat when damaged, that did not include 
 labor and services of the crew. Ibid. 
 
 TV. What is paetiai loss of caego. 
 
 On cotton, valued. A part of it was lost 
 and the balance brought to port of destina- 
 tion. Insured notified insurer of his inten- 
 tion not to abandon. Held, a partial loss. 
 Sale ®. Sun Mut. Ins. Co., 3 Rob. (N. Y.), 602. 
 
 V. Of paeticulae aveeage on caego. 
 
 (a) What is. 
 
 1. All losses, charges and expenses neces- 
 sarily, prudently or reasonably incurred, in 
 respect to the property saved, from the time 
 of the shipwreck to the time when the prop- 
 erty could be transported to the place of its 
 ultimate destination, are charges upon the 
 property so transported, and must be borne by 
 the insurers thereof; that transporting the 
 master and crew, their support, board and 
 lodging, and a compensation to the seamen 
 after they became disconnected with the ves- 
 sel, were proper charges. Bridge «. Niagara 
 Ins. Co., 1 Hall (N. T.), 423. 
 
 (b) What is not. 
 
 2. She sustained injury in descending the 
 Mississippi, and was towed back to New Or- 
 leans. A charge of 2>^ per cent, was made 
 against the cargo, landed and restowed. Meld, 
 the charge was not proper. Shiffv. Insurance 
 Co., 1 La. (O. S.), 305. 
 
 VI. BULES FOE ADJUSTING THE PAETIC- 
 ULAE AVEEAGE. 
 
 1. On cargo. New York to Cadiz. Prime 
 cost, $8,189. Insured for $8,000. A portion 
 446 
 
 of it, coat $3,161, was damaged by sea water. 
 It would have sold for $4,971, with freight, 
 $971 ; but on account of the damage, sold for 
 $931. Hdd, the mode of calculating the av- 
 erage loss is to take the proportion of the dif. 
 ference between the price of the sound and 
 the damaged articles, at the port of delivery, 
 and for the insurer to pay that proportion up- 
 on the value of the goods specified in the pol- 
 icy. Lawenee e. Nea York Ins. Co., 3 Johns. 
 C, 217. 
 
 2. Where the delay is not, in law, a devia- 
 tion, and the insured is entitled to recover for 
 a partial loss on cargo, the amount is the dif- 
 ference between the net proceeds of the sales, 
 and the cost of the outward cargo, including 
 the premium, with interest Suydam v. Marine 
 Ins. Co., 2 Johns., 139. 
 
 3. The rule for determining the amount of 
 a partial loss on ship is this: "Apply tlie 
 value of the old materials toward payment for 
 the new, and deduct one-third new for old 
 from the balance. Byrnes v. National Ins. Co., 
 1 Cow., 265. 
 
 4. On crates and casks of earthenware at 
 and from New Orleans to Pittsburg, some of 
 which were damaged when examined at the 
 port of destination. Appraisers appointeJ to 
 ascertain the damage assumed as the standard 
 value the importation cost at New Orleans. 
 Held, correct. Stewart v. Western Marine and 
 Fire Ins. Co., 11 La. (O. S.), 53. 
 
 5. The rule to determine the amount of par- 
 tial loss (m goods is to ascertain what the 
 gross sales of such goods would have been had 
 they arrived sound, deduct from it the gross 
 sales of the damaged goods, ascertain the ratio, 
 and apply it, whatever it be, to the agreed val- 
 ue, if there be one, and if there be none, then 
 upon the cost of the goods insured. Evans v. 
 Commercial Mut. Ins. Co., 6 R I., 47. 
 
 6. On corn from Chicago to Montreal, with 
 permission to tranship at Kingston on stand- 
 ard barges or vessels, " From and after the 
 lading thereof, and shall so continue till 
 landed at the port of destination, but not to 
 exceed forty-eight hours after the arrival, an- 
 chorage or mooring of the vessel at the port 
 of destination." The corn received damage 
 on the voyage, and about 400 bushels were in 
 a condition which demanded an immediate 
 sale at Kingston. The residue, in apparent 
 good order, was transhipped for Montreal, 
 where it arrived May 28th. An authorized 
 
893 
 
 PARTIES TO THE ACTION — PAYMENT. 
 
 894 
 
 MisoeUaneous. 
 
 inspector examined it on the SOth and pro- 
 nounced it of the grade "r^ected," It was 
 then in 'what is called a heating condition. 
 Consiguees permitted it to remain in the ves- 
 sel two or tliree days, then put it into store 
 for the purpose of drying. SM, the market 
 price of the corn was not the basis of insurer's 
 liability, because that would involve him in 
 the rise and fall of the markets, in which he 
 had no concern; that iu determining the 
 liability, the sea damage was to be ascer- 
 tained by comparing the price for which ii 
 would have sold in the market had it arrived 
 sound, with the price that it might have 
 brought in its damaged condition, and by 
 applying the ascertained ratio of damage to 
 the valuation named in the policy, charging 
 insurer with any expense that was reasonable 
 and properly incurred, for tlie purpose of 
 ascertaining the loss; and, if it was stored for 
 any purpose other than that of ascertaining 
 the extent of the injury, the expense and loss 
 consequent thereon were not to be taken into 
 the account. Lamar Int. Co. e. McOla»hea, 
 54 111., 513. 
 
 7. A partial loss on goods is to be deter- 
 mined by ascertaining the difference between 
 their gross proceeds when sound and the gross 
 proceeds arising fnJm their sale after damage. 
 Hnrry v. Soyal Exchange Ass. Co., 3 B. & P., 
 308; s. 0., 2 id., 430. 
 
 8. An average loss on goods must he calcu- 
 lated upon the invoice price and not upon the 
 price in the market at which the damaged 
 goods have arrived. Waldron c. Coombe, 3 
 Taunt., 162. 
 
 9. The rule by which the partial loss on 
 goods is to be calculated is the difference 
 between the gross proceeds of the damaged 
 goods and the gross proceeds of the same if 
 sound. John»on e. Sheddon, 2 East, 581. 
 
 10. The value of goods insured under an 
 open policy is to be ascertained by adding 
 the premiums for insurance and commission 
 to the invoice price. And the proportion of a 
 loss is ascertained by comparing the selling 
 price of the sound commodity with the dam- 
 aged part at the port of delivery, and apply 
 that proportion to the value at the port of 
 loading. U»her v. IToble, 12 East, 639. 
 
 PARTIES TO THE ACTION. 
 
 (See AcnoH.) 
 
 PARTNERSHIP. 
 
 1 . To constitute a partnership by which the 
 act of one will bind or enure to the benefit of 
 the rest, there must be a reciprocal choice and 
 agreement of the parties to unite their stock, 
 and to share in all risks of profit and loss. 
 Helmet o. United Int. Co., 2 Jehus. C, 329. 
 
 2. B. & W. kept and sold goods upon the 
 premises prior to April, 1856, iu the name of 
 B. & W. B. then bought the stock in trade 
 and was sole owner; but he continued the 
 name of W. with his own, and the business 
 was conducted in the name of B. & W. Held, 
 using the name of the firm did not constitute 
 the goods partnership property. Oould v. York 
 County Mutual Fire Int. Co., 47 Me., 403. 
 
 3. The deed of settlement provided that 
 persons effecting insurances shall be divided 
 into two classes, — the participating class, and 
 the non-parlicipating class; that the former 
 shall be entitled to share in profits of tlie 
 company, but tlie latter shall not. Held, the 
 right to participate in the profits did not con- 
 stitute insured a partner with the proprietors 
 of the company. In re Englith and Irish 
 Church and University Ass. 8oc., 11 W. R., 681 ; 
 8 L. T. (N. S.), 724. 
 
 PASSAGE MONEY. 
 
 (See Frbisht.) 
 
 PAYMENT. 
 
 I. What is. 
 
 II. NOT. 
 
 I. What is. 
 
 1. The defendants (Slate & Co.), ship's hus- 
 bands, and agents for her owners, were author- 
 ized to make insurances on her freight, and 
 to receive her earnings. They insured the 
 freight for $17,000, valued, in their own name, 
 loss payable to them. After the loss occurred, 
 Slate & Co. became insolvent, and the plaintiff, 
 one of the owners, notified insurers not to pay 
 the claim to them ; but a portion of the claim 
 
 447 
 
895 
 
 PAYMENT. 
 
 896 
 
 What is not. 
 
 had heen paid the day prior to the notice. 
 Held, the payment was justified. GiUilan v. 
 Sun Mut. Ins. Go., 41 N. T. (3 Hand), 376. 
 
 2. Where a bill of lading is talcen by a 
 creditor as security for a debt on his own ac- 
 count, th? whole property passes by the deliv- 
 ery and is a satisfaction of the debt pro tanto; 
 but this may be rebutted by evidence of any 
 particular agreement between the parties. 
 Sibbert v. Carter, 1 Term, 745. 
 
 3. The insurance broker debited the insurer 
 with the loss and took the insurers' acceptance 
 for the balance in account between them, pay- 
 able at a time later than that when the loss 
 would be payable in cash. Seld, the insured 
 could maintain an action against the broker 
 for money had and received ; and, that the ac- 
 ceptance was dishonored and never paid, was 
 immaterial. Wilkinson v. Clay, 6 Taunt., 110. 
 
 4. Sealed policy, " To A. as owner, agent, or 
 otherwise." The interest was averred in Le 
 Quesne, the real plaintiff. The defense was 
 payment. It appeared that insurer allowed 
 credit for £1,524, a debt due by A. to insurer, 
 and paid him £1,476, the balance of the 
 loss. Held, as A. was the only person who 
 could sue upon the covenant, paj'ment to him 
 in any mode, by which he was bound, was a 
 good payment as against Le Quesne, and any 
 settlement which bound A. was equally bind- 
 ing upon Le Quesne, suing in A's name. Oib- 
 son V. Winter, 5 B. & Ad., 96; 2 N. & M., 737. 
 
 5. Insured had for several years effected in- 
 surances through D. & Co., having general 
 and insurance accounts current with them. 
 D. & Co. effected this policy in September, 
 1835. The loss occurred in May, 1836. D. & 
 Co. were then indebted to insurer £217, a bal- 
 ance in account for the previous year. In the 
 following month D. & Co. paid him £100, leav- 
 ing the balance to meet tliis losSj which was 
 adjusted in September following, and made 
 payable in one month. It was then credited 
 by insurer to D. & Co., who inclosed to in- 
 surer a credit note of the whole loss, and car- 
 ried it to the credit of insured, debiting in- 
 sured with premiums to the end of September, 
 when there was a balance due insured upon 
 the insurance account, which was carried to 
 insured's credit in general account. At the 
 foot of the credit note was written : " Above is 
 the credit note of the loss per Vrow Elizabeth, 
 £1,155 3s. lOd., but without our preiudice till in 
 cash from the underwriters." It was oroved 
 
 448 
 
 that the custom vras for brokers to settle losses 
 as between broker and underwriter in the man. 
 ner above stated, which was well known in 
 Liverpool, the place where insured resided. 
 Held, sufficient to establish the plea of pay- 
 ment. Stewart v. Aberdein, 4 Mee. W., 211 ; 7 
 L.J. (N. S.), Ex., 293. 
 
 6. The broker procured the policy in his 
 own name, in behalf of his principal. The 
 policy was retained by hira. A loss occurred, 
 and he pledged the policy to another broker, 
 and received money on it on account of the 
 loss. Held, a valid payment, for the person to 
 whom it was made had authority to receive. 
 GaUmo v. Kelson, 10 W. R., 193. 
 
 7. Policy assigned in trust for the assignee 
 to repay himself a debt. Held, the insurer 
 was not bound to look beyond the trustee, and 
 a payment to him would be good. Gurtin e. 
 Jellieoe, 13 Irish Ch., 180. 
 
 8. The policy was assigned in trust for cer- 
 tain purposes mentioned, of which the insurer 
 had notice. Held, the insurer was not bound 
 to see to the application of the fund. Ford n. 
 Ryan, 4 Irish Ch., 342. 
 
 II. What is not. 
 
 1. If insured be in debt to a broker, and 
 gives him a policy to effect an adjustment, 
 which he does, and thereon he debits the in- 
 surer with the amount, and credits the insured 
 with it, there is no payment to the insured 
 unless he assents. Bethune v. Neilson, 2 Caines, 
 139. 
 
 2. The assignment of a note of a third per- 
 son does not extinguish the debt upon which 
 it was assigned, unless it was received as pay- 
 ment or in satisfaction of the debt. Paiapsco 
 Ins. Co. V. Smith, 6 H. & J., 166. 
 
 3. The commander of a merchant ship 
 owned one share in her. He directed Lut- 
 widge to insure £200 upon her; and Lutwidge 
 procured Watson >uid Thornton to make the 
 insurance ; and they made it in the name of 
 Lutwidge. Ship and crew were lost. Tlie 
 commander's widow notified insurers of the 
 loss, and that Lutwidge was only a trustee for 
 her late husband, and cautioned them not to 
 pay the money to him, but to pay it to her. 
 Lutwidge, under ]irctense that tlie deceased 
 was indebted to him, procured insurers to 
 credit him in account with the claim ; which 
 account was afterwards settled between them. 
 
897 
 
 PAYMENT — PAYMENT OF MONEY INTO COURT. 
 
 898 
 
 What is not 
 
 Held, if tlie insurers had paid tlie money to 
 Lutwidge without notice that he was a trustee, 
 they would have been indemnified; but as tlie 
 settlement was made contrary to the notice 
 that Lutwidge was a trustee, the payment was 
 unauthorized ; the court will not suflFer a per- 
 son having notice of a ti'ust to settle with a 
 trustee, against the directions of the cestui que 
 truit; that allowing it in account with Lut- 
 widge did not alter the property, and the in- 
 surers were ordered to pay it over to the wid- 
 ow^, and Lutwidge must pay costs of suit, be- 
 cause he had drawn insurers in, and prevailed 
 upon them by false representations to settle 
 the account. Fell v. lAtiaidge,'Bara. Ch., 319. 
 
 4. After a total loss and a^ustment, and 
 within a month, while the policy remained in 
 tlie hands of the broker, insurer's account 
 with the broker was debited by the broker 
 with the loss, and the insurer's initials were 
 stricken off the policy. The insurer and the 
 broker had been ordered to pay the money to 
 oue Splintt. Held, tlie priiicipiil is never 
 estopped from demanding the money, unless 
 there has been actually a payment to the 
 broker, or credit given by the insured. Jell 
 f>. Pratt, 2 Stark., 67. 
 
 5. A broker was employed by a person re- 
 siding at Glasgow, to settle with his insurer 
 at London. The insurer's name was struck 
 off the policy, and the broker credited with 
 tlie loss, from which was deducted a sum of 
 money then due by the broker to the insurer, 
 and the balance was paid in cash to the bro- 
 ker, who became bankrupt, and never paid any 
 of the money to the insured. Held, the sum 
 paid in money was a payment of the loss pro 
 iaiUo; but as to the balance, for which the 
 broker gave the insurer credit, it was no pay- 
 ment Seott V. Irving, 1 B. & Ad., 605 ; Sart- 
 lea «. Pentland, 10 B. & C. 760 ; 8 L. J. K. B., 264. 
 
 6. Policy was delivered to broker to settle 
 an adjusted loss, payable in a month. Thu 
 broker charged the insurer in account for the 
 loss, and transmitted to the insured an account, 
 in which he debited himself with the loss, and 
 for that balance, insured drew a bill upon the 
 broker, which was accepted but not paid. The 
 insurer's name was not struck off the policy. 
 Held, tlie insurer was not discharged. Bustell 
 t. SangUy, 4 B. & A., 396. 
 
 7. The broker signed a policy in behalf of 
 the underwriter. A loss occurred, and the in- 
 sured received from the broker a credit note. 
 
 29 
 
 The practice was for the broker and the in- 
 sured, if there was a running account between 
 them, to pay tlie credit note at the end of the 
 month, but there was no running account in 
 this case. At the time the ai^justment was 
 made, the broker had money in hand at the 
 credit of the defendant. The broker subse- 
 quently stopped payment, and this action was 
 brought against the insurer. Held, crediting 
 the broker with the loss was not a payment. 
 McFarlane «. Gian.naeopulo,Z H. &N., 860; 
 28 L. J. Ex., 72. 
 
 8. W., an insurance broker, employed by a 
 ship builder to effect a policy upon a ship, re- 
 ceived ship's papers after the loss occurred, to 
 adjust it with insm-ers. The policy was made 
 in the name of W., and he retained possession 
 of it. An adjustment was made between bro- 
 ker and insurer, and they gave broker credit 
 for the loss against premiums due by him to 
 them, on other policies. Held, a payment in 
 money to the broker would have been good ; 
 but crediting him with the amount was not 
 payment binding on the insured. Suieeting v. 
 Pearee, 7 C. B. (N. S.), 449 ; s. c, 29 L. J. C. P., 
 265; affirmed in Exch'r, 9 C. B. (N. S.), 534; s. 
 0., 30 L. J. C. P., 109 ; 9 W. R, 343 ; 5 L. T. (N. 
 S.), 79. 
 
 9. When the policy was produced, it ap- 
 peared that an adjustment at thirty per cent, 
 had been indorsed upon it,1ind that a pen had 
 been drawn through insurer's signature. Held, 
 it was not evidence of payment. Adams v. 
 Sanders, 3 Moo. & M., 373; 4 C. & P., 23. 
 
 10. D. & S. undertook to i-epair a ship. The 
 owner requested his brokers to pay the amount 
 of his claim to D. & S. as soon as they should 
 receive it. The brokers had employed W. & 
 S. to effect the insurance, and insurers gave 
 W. & S. credit for the loss. Held, the brokers 
 were liable to D. & S. for the amount, less the 
 premium. Dawson v. Orr, 24 C. C. S., 566; 34 
 Scot. Jur., 289. 
 
 PAYMENT OF MONEY INTO COURT. 
 
 I. What it admits. 
 
 II. IS NOT ADMITTED. 
 
 III. Of the effect of taking it out. 
 
 I. What it admits. 
 
 1. Payment of money into court admits the 
 
 449 
 
899 
 
 PAYMENT OF PREMIUM. 
 
 900 
 
 Of the acknowledgment in the pohcy or in premium receipts. 
 
 cause of action as stated in plaintififs declara- 
 tion. Johnson «. Columbian In». Co., 7 Johns., 
 315. 
 
 2. Declaration on a special contract. De- 
 fendant paid money into court. Held, an ad- 
 mission of the right to the amount brought 
 in, but it did not waive any defense, even 
 though that be to the whole cause; that the 
 cause must proceed in the same manner as if 
 the money had not been paid in at all. Elliott 
 V. Lycoming County Ins. Co., 66 Penn. St., 33. 
 
 3. The defendant paid money into court to 
 the amount of a partial loss. Held, not an ad- 
 mission of a total loss. Mucker v. Palgrave, 1 
 Taunt., 419; 1 Camp., 557. 
 
 4. If the action was prematurely brought, 
 paying money into court waived any ob- 
 jection on that ground. Ha/rrison v. Douglas, 
 3 A. & E., 396 ; 6 N. & M., 180. 
 
 II. What is not admitted. 
 
 1. Payment of money into court admits the 
 contract and damages to the amount paid in, 
 and if the plaintiff fails to establish a right to 
 larger damages at the trial, he must be non- 
 suited or have a. verdict against him. Donnell 
 V. Columbian Ins. Co., 2 Sumn., 366. 
 
 2. Payment of money into court does not 
 admit that the plaintiff can recover on a con- 
 tract not in his own name nor made for his 
 benefit. Cox v. Parry, 1 Term, 464. 
 
 3. Paying money into court admits only 
 that something was due. Harrison v. Doug- 
 las, 3 A. & B., 396 ; 6 N. & M., 180. 
 
 4. The payment of money into court admits 
 that the defendant entered into the contract; 
 but he is still at liberty to contend that he is 
 not liable, beyond the amonut of such pay- 
 ment, for a damage to goods which were not 
 laden according to the terms of the policy. 
 Mellish -0. Allnutt, 3 Mau. & Sel., 106. 
 
 III. Of the effect of tasinq it out. 
 
 When the insurer pays money into court, 
 the insured will not be precluded from pro- 
 ceeding for a total loss, though he has taken 
 the money out; provided, at the time it is so 
 taken, the attorney for the opposite party has 
 notice that the insured will still proceed for a 
 total loss. Sleght v. Bhinelander, 1 Johns., 
 198; s. c, 3 id., 533. 
 450 
 
 PAYMENT OF PREMIUM. 
 
 I. Or THE ACKNOWLEDGMEHT IN THE POL- 
 ICY OR IN PHEMnjM BECEIPT8. 
 
 II. When war prevents the payment. 
 
 III. To whom payment may be made. 
 
 IV. When nonpay.ment does not afpect 
 
 the rights op insured. 
 
 V. nonpayment IS FATAL TO RECOV- 
 
 ERY. 
 
 VI. What ib a defense to. 
 
 I. Op the ackhowledgment in tue 
 
 POLICY OE in premium EECEIPTS. 
 
 1. The application provided that " The pol- 
 icy shall not be binding till the premium shall 
 have been received by the company or some 
 authorized agent in the life time of the person 
 whose life is insured." The premium was to 
 be part cash and part notes. Insured told the 
 agent to call on his partner for the cash, and 
 to send the policy to him. The notes were 
 sent to the insured, who executed and returned 
 them to the agent In the letter inclosing 
 them, the company's agent wrote : " The cash 
 payment we will get of Scott when the time 
 arrives." The policy recited the considera- 
 tion, but upon the margin, noted that agents 
 were not authorized to waive, alter or change 
 any of the provisions of the policy. The re- 
 ceipt which accompanied the policy contained 
 a notice: "Agents must not deliver policies 
 till the premium is received, as no policy is in 
 force till paid for." The policy was deliv- 
 ered, together with the receipt, but Scott never 
 paid the cash part of the premium. The agent 
 notified the insured that Scott refused to pay 
 the premium, and the insured promised the 
 agent to get the money and send it along in a 
 few days. The insured became sick. The 
 agent wrote to him, inclosing the two pre- 
 mium notes, and requested a return of the pol- 
 icy. The insured died before this letter reach- 
 ed him. Held, the agents had power to waive 
 the payment of the premium, and to deliver the 
 policy without exacting the cash premium ; de- 
 livering the policy, without requiring pay- 
 ment of premium, raised a presumptioa that 
 credit was intended ; and where a credit is in- 
 tended, the policy is valid, though the pre- 
 mium be never paid. Miller v. Life Ins. Co., 
 13 Wall., 385. 
 
901 
 
 PAYMENT OF PREMIUM. 
 
 902 
 
 Of the acknowledgment in the policy or in premium receipts. 
 
 2. The policy confessed payment of pre- 
 mium and the defendant pleaded nonpayment 
 of it ffdd, the plea was no answer to the 
 action nor was it aided by an allegation tliat 
 a court of chancery had eiyoined its payment. 
 Hodgton o. Marine Int. Co., 5 Cranch, 100. 
 
 3. Stipulated: "Not binding till the actual 
 payment of the premium. Iletd, it was com- 
 petent for insurers to waive tlie condition and 
 that might be established by evidence, of 
 an express agreement to that eflfect or by cir- 
 cumstances; and delivering a policy con- 
 fessing the payment of premium was evidence 
 of the waiver. €hit o. National Protection 
 loi. Go., 35 Barb., 189. 
 
 4. "Where the Insurer acknowledges in the 
 policy payment of the premium, and the in- 
 sured has afterwards a right to a return of 
 premium, he may recover it in an action for 
 money had and received, although in truth he 
 gave only his promissory note for the pre- 
 mium, and the note remains unpaid, fim- 
 memoa;/ o. Bradford, 14 Mass., 121. 
 
 5. Stipulated: "The insurer shall not be 
 liable till the premium shall be aclually paid 
 to the company;" but the policy acknowl- 
 edged the receipt of the premium. Seld, de- 
 fendant could not be permitted to prove that 
 the premium had never been paid, for the 
 purpose of defeating the rights of insured 
 (citing Providence Ins. Co. v. Fennell, 49 111., 
 ISO; New York Central Ins. Co. e. National 
 Protection Ins. Co., 20 Barb., 468; Kent's 
 Com., vol. 3, p. 260). Batch v. Humboldt Mutual 
 Fire and Marine Int. Go., 35 N. J., 429. 
 
 6. The policy acknowledged receipt of the 
 premium, but none was in fact paid. Held, 
 insurer could not set up the non-payment of 
 the premium as a defense to the action. 
 Madiion Int. Go. v. FeUowet, 1 Disney, 217; 
 affirmed, 2 id., 128. 
 
 7. The policy delivered to insured contained 
 an .icknowledgment of the receipt of the pre- 
 mium. Stipulated: "No order for insurance 
 will be of any force unless the premium be 
 first paid to the company." Held, the com- 
 pany could not be allowed to urge the non- 
 payment of the premium as a defense to the 
 action. Gontolidated Fire Int. Go. v. Gathoa, 
 41 Md., 59. 
 
 8. The policy was under seal and it ad- 
 mitted the payment of the premium. The de- 
 fendant offered to prove that a promissory 
 note was given for the premium, and that it 
 
 had never been paid. Held, the acknowledg- 
 ment of the consideration could not be con- 
 tradicted by parol evidence, if the object was 
 to make the deed void (citing Goit <o. National 
 Ins. Co., 35 Barb., 189; New York Central 
 Ins. Co. 0. National Ins. Co., 20 Bai-b., 486; 
 3 Kent's Com., 360). Illimit Central Int. Go. 
 V. Wolf, 37 111., 354. 
 
 9. Appellant agreed to furnish the members 
 of the Bismarck Bund with life insurance, the 
 Bund being primarily liable for the premiums, 
 the members paying the Bund by weekly in- 
 stallments. The policy recited payment of 
 the current quarterly premium. Held, insurer 
 could not disprove the recital of the policy 
 as a defense to the action. Also it was no de- 
 fense to the action that insured was in arrears 
 to the Bund. Teutonia Life Ins. Go. v. Mueller, 
 77 111., 22; name o. Anderton, id., 382. 
 
 10. The policy acknowledged receipt of 
 cash premium and a premium note. Held, 
 the policy itself was evidence of the fact of 
 payment Troy Fire Int. Go. «. Carpenter, 4 
 Wis., 20. 
 
 11. The policy acknowledged payment of 
 the premium; and insured paid it to an itin- 
 erant insurance broker, through whom the 
 contract was made. Insurer entrusted the 
 policy to this itinerant insurance broker for 
 delivery to the plaintiff. Held, payment to 
 him was payment to the insurer. Held, alto, 
 an acknowledgment of the payment recited in 
 the policy estopped insurer from saying that 
 the premium was not paid. Michael o. Mutual 
 Int. Co., 13 La. An., 737. 
 
 12. "To be void, unless the premium shall 
 be paid witliin thirty days after," a date men- 
 tioned. There were mutual accounts between 
 the two parties, and their course of dealing 
 was to credit each other with the premiums 
 due to each, and to give receipts acknowledg- 
 ing payments as in cash, and from time to 
 lime to strike a balance and make settlements. 
 Receipts were accordingly made and deliv- 
 ered by the defendants to the plaintiffs for 
 this premium, but no cash had been paid for 
 it at the time of the death. Held, the premi- 
 ums were paid when the receipts were deliv- 
 ered. Prince of Wales Life Att. Go. v. Har- 
 ding, El. Bl. & El., 183; s. c, 4 Jur. (N. S.), 
 851; 27 L. J. Q. B., 297. 
 
 1 3. The plaintiff sued to recover return pre- 
 mium, and gave in evidence the policy signed 
 by the defendant, which acknowledged the 
 
 451 
 
903 
 
 PAYMENT OF PREMIUM. 
 
 901 
 
 When war prevents the payment. 
 
 payment of the premiunt. No premium had 
 ever been paid to the insurer by the broker 
 ■who obtained the policy. Hdd, the aclsnowl- 
 edgment of the receipt of the money in the 
 policy, as between insured and insurer, es- 
 topped the insurer from saying that the bro- 
 ker never paid him the premium. Dalzell v. 
 Mair, 1 Camp., 532. 
 
 14. The policy recited the payment of the 
 premium, but the brokers had not in fact paid 
 it to the insurers. Held, the receipt of the 
 underwriter for the premium was conclusive 
 evidence for the insured that he had paid* it. 
 De Gaminde v. Pigou, 4 Taunt., 246. 
 
 15. The policy was avoided by a material 
 misrepresentation, not fraudulent. Held, the 
 policy was conclusive evidence for the in- 
 sured that the premium had been paid. An- 
 derson v. Thornton, 8 Exch'r., 425. 
 
 II. When was. pbevents the pay- 
 ment. 
 
 1. A citizen and resident of Alabama ef- 
 fected a policy on his life, conditioned for the 
 payment of an annual premium on a day 
 specified in each and eveiy year, at Mobile, 
 Ala., which was paid to insurer's agent there, 
 up to the year 1861, and by him remitted to 
 insurer's principal place of business, in New 
 York. In March, 1861, insurer withdrew all 
 agencies from Alabama, and had no agent in 
 that state until 1869. Insured paid no premi- 
 ums after 1861, because there was no agent to 
 receive them, and the insurrection against the 
 government of the United States prevented 
 Lawful intercourse between the state of Ala- 
 bama and New York, until May, 1865 ; but 
 after that date and before March, 1866, insured 
 applied to insurer at New York, for leave to 
 pay all premiums in arrear, with interest 
 thereon, who refused to recognize the policy 
 as subsisting, and declined the premiums and 
 interest. Insured died, and his executor made 
 claim for the sum insured, which was refused. 
 Held, the company was bound to provide an 
 agent in Alabama to receive the premiums, 
 during the life of insured, and that insured 
 was not bound to pay them elsewhere ; that 
 the company could not set up as a defense the 
 nonpayment of the premium, for insurer must 
 be regarded as having prevented insured fi-om 
 paying the premiums as they became due; 
 and the inability of the company to receive 
 452 
 
 the premiums, because of the unlawfulness of 
 commercial intercourse was equivalent to a 
 tender of and a refusal to receive them; that 
 the contract was not one of continuing per- 
 formance, the existence of which was depend- 
 ent on further intercourse between the parties; 
 that the only effect the war had was to sus- 
 pend its operation, and that on- tlie return of 
 peace, the rights of the parties could be en- 
 forced under it (citing Manhattan Life Ins. 
 Co. D. Warwick, 20 Gratt., 614). Hamilton v. 
 Mutual Life Int. Co., 9 Blatch., 234. 
 
 2. Policy on the life of a resident of Rich- 
 mond, Va., stipulated for the payment of an 
 annual premium at certain dates named, dur- 
 ing the life of the person insured. Defend- 
 ants appointed C. as an agent to receive pre- 
 miums at Richmond, to deliver renewal re- 
 ceipts, and to take the premiums that might 
 become due on them, 'there was no revoca- 
 tion of his agency until 1865. The premiums 
 were regularly paid to the agent up to the 
 time of death; those that came due in 1861 
 and 1862 were paid in confederate money, re- 
 ceipts were given in the name of the agent for 
 -them, who advised the general agents in New 
 York, and was by them instructed to receive 
 the premiums and hold them subject to their 
 order. Subsequently the agent addressed a 
 letter to the principal office in London, slating 
 the death of insured, and the amount jf con- 
 federate money in his hands for the company, 
 to which no reply was given. But in 1866, the 
 general agents published a notice at Rich- 
 mond, saying: "The company have no busi- 
 ness agent at Richmond at present." Held, 
 the existence of war after June 6, 1861, be- 
 tween north and south, did not affect the rights 
 of the parties, for the contract was between a 
 citizen of a neutral power, and a citizen of a 
 belligerent, and such contracts are valid by 
 the laws of all countries; that whether the 
 payment of premiums in confederate money 
 was rightful must be decided upon the state 
 of things as they existed in 1861 and 1863, not 
 as they were in 1870; that the confederate 
 money was issued by authority of a govern- 
 ment de facto, and was valid. Heuce insurers 
 were liable. Robinson v. International Lift! 
 Ass. Soc, 42 N. Y. (3 Hand), 54 ; s. c, 53 Barb., 
 450 ; Sands v. Neui Tork Life Ins. Go., 50 N. Y., 
 626; s. c, 59 Barb., 556. 
 
 3. On life of plaintiff's fattier. Stipulated: 
 " To be void if the annual iJremium shall not 
 
905 
 
 PAYMENT OF PREMIUM. 
 
 906 
 
 When war prevents the pa;yment. 
 
 be paid at the times designated." The plaintiff 
 resided in Virginia, and the defendants were 
 inhabitants of the state of New Jersey. Dur- 
 ing the war between tbe north and south, all 
 commercial intercourse became unlawful and 
 impossible, the plaintiff being thereby pre- 
 vented from paying the premiums. The per- 
 son insured- died during the period of such 
 nonpayment Held,'it the premiums had been 
 tendered during tliat time, the defendants 
 could not lawfully have received them, both 
 the payment and the receipt being in viola- 
 tion of law, hence the payment was excused 
 (citing Lawrence o. Twentiman, 1 Roll. Abr., 
 450, condition G.,, pi. 10; Williams e. Lloj'd, 
 Jones W., 179; Lr.rd Coke, 1 Inst, 216 Abr.; 
 People V. Manning, 8 Cow., 297; Barker c. 
 Hodson, 3 M. & S., 207 ; Hall v. Wight, E. B. 
 & E., 746. MiUyard o. Mutual Benefit Life 
 Ins. Co., 35 N. J., 415: 
 
 4. Life policy to a wife, a resident of the 
 state of Georgia, stipulated it should be null 
 and void, and all premiums paid forfeited, in 
 case the annual premiums should not be paid 
 at the date menticmed in the agreement. All 
 payments were regularly made frtira 1849 to 
 1861, but those which fell due in 1862, during 
 the civil war were not paid, because all inter- 
 course with the state was interrilpt«d and for- 
 bidden by law. So soon as intercourse was 
 resumed, the plaintiff tendered the premiums 
 then unpaid, but the defendant refused them, 
 and declared the policy forfeited. During the 
 life of her husband she brought this action to 
 compel the defendant to receive the premiums 
 or to refund those which had been paid with 
 interest Held, it was a lawful contract at its 
 inception ; that the existence of war between 
 the two states, though it prevented the trans- 
 mission of tbe premiums, did not work a dis- 
 solution of the contract, but suspended it, and 
 a tender made seasonably after the termina- 
 tion of liostilities revived the contract Cohen 
 «. New Tork Mutual Life Ins. Co., 50 N. Y., 
 610; Martine v. International Life Ins. Sot., 53 
 N. Y., 339; 8. c, 62 Barb., 181 ; 5 Lans., 535. 
 
 5. Declaration on a policy upon the life of 
 plaintiff's husband, issued by the defendant at 
 Hartford, Conn., countersigned by defendant's 
 agent at Greenville, S. C. Premium pay- 
 able on or before tlie 14th day of January in 
 every year. Stipulated: " In case the said in- 
 sured shall not pay the said annual premiums 
 00 or before the time mentioned for the pay- 
 
 ment thereof, the said company shall not bo 
 liable for the payment of the sum insured, or 
 any part thereof, and' this policy shall cease 
 and determine!." Averment, that the said an 
 nual premium was paid to the defendant, at 
 Greenville, in each and every year after the 
 making of said policy to and including tlie 
 payment of January 14, 1859 ; that before the 
 next premium became due, to wit, January 1, 
 1860, the defendants withdrew their agent from 
 Greenville, and from the state of South Caro- 
 lina, and notified insured that the policy had 
 been placed on the home office li.st for renewal, 
 and that tliereafter defendants would send no- 
 tice duly and regularly of the time the annual 
 premium became due; that in pursuance of 
 such notice the premiums due January. 14, 
 1860, and January 14, 1861, were remitted to 
 the defendants at Hartford, and that the de- 
 fendants never notified insured that any an- 
 nual premium was due on said policy after 
 the said 14th day of January, 1861 ; that in- 
 sured was ready and willing to pay the said 
 several annual premiums as the same respect- 
 ively became due and payable; but the same 
 were not paid for the years 1862, 1863, 1864 
 and 186p, because the tlien existing insurrection 
 and rebelliim against the government of the 
 United States had interrupted and prevented 
 . all lawful communication by mail or other- 
 wise between Greenville and the city of Hart- 
 ford, where the defendants )iad their ofiice and 
 place of business. Tliere was also an aver- 
 ment of the president's proclamation, declar- 
 ing the inhabitants of the state of South Caro- 
 lina in a state of insurrection against the 
 United States, declaring all commercial inter- 
 course between that state and the citizens 
 thereof and tlie citizens of other states unlaw- 
 ful; and that such resti'ictions and prohibi- 
 tions continued until May 22, 1865. That after 
 the cessation of hostilities, insured applied to 
 the defendant at Hartford to ascertain the 
 amount of unpaid premiums and interest 
 thereon, and offered to pay the same, with in- 
 terest thereon ; bat the defendants refused to 
 accept said offer, and denied that said policy 
 was in force. Insured died April 7, 1869, 
 Held, on demurrer to declarationn, payment of 
 the premium was possible. Had insured come 
 into the northern states or employed an agent, 
 as he had an opportunity to do, the defend- 
 ants could have received the premiums without 
 violating any law. Hence, the court would 
 
 453 
 
907 
 
 PAYMENT OF PREMIUM. 
 
 90S 
 
 When war prevents the payment. 
 
 not attribute to tlie law, consequences which 
 the party, by his own act, had bronglit upon 
 himself. Held, also, tliere is a manifest dis- 
 tinction between a right to insure and an 
 actual insurance. There was no actual insur- 
 ance after January 14, 1863, except by com- 
 plying with the conditions of the contiact. 
 It was an executory contiact on the part of 
 insured, and the law preventing insured from 
 performing her pai't necessarily dissolved the 
 contract. The court admits that the cur- 
 rent of autliority is opposed to this decis- 
 ion, but asserts that the reasoning given in 
 contrary decisions is not satisfactory. Worth- 
 iiigton -u. Charter Oak Life Ins. Co., 41 Conn., 
 373. 
 
 6. Policy upon a life ; $181.50 in hand paid, 
 and for the annual premium of $181.50, com- 
 mencing March 13, 1858, at noon, stipulated : 
 " If the premiums shall not be paid on or be- 
 fore the several days mentioned for the pay- 
 ment thereof, tlie policy shall cease and 
 determine." All the premiums that became 
 due prior to March 13, 1863, were paid, but 
 that for 1863 was tendered and refused, the 
 agent's authority to receive h.iving been with- 
 drawn. The insured resided in the southern 
 states during the years 1863, 1868 and 1864, 
 while all commercial intercourse was inter- 
 dicted. Held, it was not a contract of contin- 
 uing performance. The contract of insurance 
 is sui generis, governed by a peculiar and 
 arbitary code of the modern common law, dis- 
 tinguished from ordinary commercial con- 
 tracts, and especially in the effect of war 
 on its preexisting validity; the condition 
 mentioned was intended to reach a voluntary 
 failure to pay the premium, where there was 
 legal ability to receive it; the policy was not 
 avoided by the inevitable nonpayment of the 
 premium (citing Ward v. Smith, 7 Wall., 447). 
 Ifea York Life Ins. Co. v. Clopton, 7 Bush, 
 179. 
 
 7. In 1859, D. insured her husband's life 
 through the company's agent, and paid the 
 annual premiums till 1863, but failed to pay 
 them, because of nonintercourse during the 
 war, for the years 1863, 1864 and 1865. He 
 died in 1865. She tendered the unpaid pre- 
 miums and demanded the sum insured. 
 Held, the contract was dependent upon the 
 payment of the annual premiums as they 
 severally fell due, and a failure to pay, 
 from any cause whatever, could not be reme- 
 
 454 
 
 died by a tender after the death of her hua- 
 band. Dittard v. Manhattan Lift Ins. Co., 44 
 Ga., 119. 
 
 8. Life policy, July 33, 1857. Stipulated: 
 " In case the said premiums shall not l>e paid 
 on or before the day mentioned for the pay- 
 ment thereof, the company shall not be liable 
 for the payment of the sum insured, and this 
 policy shall cease and determine." Indorsed : 
 " No payment of premiums binding unless the 
 same is acknowledged by a printed receipt, 
 signed by an oflBcer of the company." Insur- 
 er's principal office was in the city of New 
 Tork, and the premiums were paid in Rich- 
 mond up to July 33, 1861, and receipts for it 
 were delivered there to insured, signed by the 
 company's secretary, and countersigned by the 
 agent at Richmond. At the date of the last 
 payment the agent had not any printed re- 
 ceipts, but he took the money, wrote to the 
 company that he had received it, and asked 
 for the receipt, stating he would remit it so 
 soon as the receipt should come to hand. He 
 also asked for other receipts, but none wore 
 ever sent. The premium which became due 
 July 33, 1863, was tendered by the insured to 
 the agent at Richmond, who stated that he 
 had received instructions not to take the 
 money or renew the policy. Insured dieJ 
 November 33, 1863. Held, Insurers could not 
 relieve themselves of their obligation by any- 
 thing they could do or leave undone; that 
 any disability on the part of insurer to receive 
 the premium, not provided for in the contract, 
 could not affect the rights of insured. Man- 
 hattan Life Ins. Co. v. Warwick, 30 Uratt, C14; 
 Mutual Benefit Life Ins. Co. v. Atwood, 34 id., 
 497 ; New Tork Life In». Go. ®. Hendren, id., 
 536. 
 
 9. The insured agreed, for the payment of a 
 cash premium, and of an annual premium so 
 long as S. should live, to pay A. the sum of 
 $5,000 within sixty days after the death of S., 
 notice and proof of the fact being given. The 
 annual premiums were paid until the rebelliou 
 commenced, which prevented fUrther remit, 
 tances ; but the premium was tendered to B., 
 who had been insurer's agent. He refused it 
 on the ground that the war had put an end to 
 his agency. Held, the tender saved the rights 
 of insured ; the contract was not annulled by 
 the existence of hostilities between north and 
 south ; it was suspended merely. Statham t. 
 New Tork lAfe Ins. Co., 45 Miss., 581. 
 
909 
 
 PAYMENT OF PREMIUM. 
 
 910 
 
 To whom pa,yinent may be made — When nonpayment does not affect the rights of the insured. 
 
 III. To WHOM PAYMENT MAT BE MADE. 
 
 1. D., an insurance broker, applied to 
 plaintiff for permission to insure his property 
 in one of two companies, the Republic or 
 Andes. The latter company was selected and 
 plaintiff made an application which was pre- 
 sented to tlie agent who made a policy and 
 delivered it to D., who carried it to plaintiff 
 and delivered it to him, stating that he would 
 'want the premium within thirty days. D. 
 called again and received the premium, but 
 never paid it over to the company's agent. 
 The policy stipulated, " No insurance or re- 
 newal thereof shall be considered binding un- 
 til the actual payment of the premium.'' The 
 company's agent demanded the premium of 
 the plaintiff, and upon his refusal to pay gave 
 notice that the policy was canceled, found- 
 ing the right to cancel upon the failure to pay 
 the premium. Held, the plaintiff had the 
 right to presume that D. had authority to col- 
 lect the premium ; he became the representa- 
 tive of the company for that specific transac- 
 tion, and this presumption remained notwith- 
 standing the premium was not paid to him 
 when he delivered the policy. CaMU v. Andes 
 Ins. Co., 5 Biss., 211. 
 
 2. C.,a general agent for defendants, ap- 
 pointed W. & D. subagents. They advaactd 
 to him certain moneys needed for traveling 
 expenses, to be debited against premiums to 
 be collected by W. & D. for the defendant W. 
 made application for a policy on his life in 
 favor of his wife, which was issued, and by 
 him delivered to her; stipulated: "Not 
 binding until payment of premium." Held, 
 the court had the right lo regard the money 
 advanced to the general agent as payment of 
 premium in advance. Thompson v. American 
 Tontine Life Ins. Co., 46 N. Y., 674. 
 
 IV. "When nonpayment does not af- 
 fect THE eights of THE INSUEED. 
 
 1. Credit. If the insured is allowed credit 
 for the premium, the contract to insure is 
 valid, and an agent authorized to make the 
 contr-ict for the company is authorized to give 
 credit for the premium. Insurance Co. v. Colt, 
 20 Wall., 560. 
 
 2. — Insurer issued a certificate of insur- 
 ance, upon which no premium was paid; but 
 insurer and the person to whom it was issued 
 
 had mutual credits, and at the end of every 
 month they struck a balance of accounts and 
 made settlements. Held, it was a payment in 
 effect. Marsh v. Northwentem National Ins. 
 Co., 3 Biss., 351. 
 
 3. Waiver. Policy stipulated : " Not to be 
 considered binding till the actual payment of 
 the premium." Insui-er's agent sent it to in- 
 sured, and wrote, " Should you decline the 
 policy, please return it by mail ; if you retain 
 it, please send me the premium." Hdd, a 
 waiver of prepayment ; that the policy became 
 effectual when the insured retained it. Sh^ 
 don 0. Atlantic Fire and Marine Ins. Co., 20 
 N. Y., 460. 
 
 4. — Stipulated: "No insurance, whether 
 original or continued, shall be considered 
 binding until the actual payment of the pre- 
 mium." A certificate of renewal was made 
 and delivered to the agent of the insured, 
 without exacting payment of the premium; 
 nor had it been paid at the time of the fire, 
 nearly three weeks after. Held, insurers could 
 make a valid contract of insurance without 
 exacting payment of the premium (citing 
 Goit V. National Policy Ins. Co., 25 Barb., 189) ; 
 and a delivery of the contract without qualifi- 
 cation or copdition, raises a presumption that 
 a short credit was intended, and waived the 
 condition stated in tlie policy. Boehen v. Wil- 
 liamaburgh l7ts. Co., 35 N. Y., 131. 
 
 5. Modification. Life policy for the benefit 
 of wife and children, stijiulated : " To be con- 
 tinued in force from time to time until the 
 decease of H., provided insured shall pay, or 
 cause to be paid, to said company annually, 
 on or before July 15th in each and every year, 
 the sum of $138.50. No insurance, whether 
 original or for which a renewal receipt has 
 been issued, shall be considered binding until 
 actual payment of the premium." It was 
 proved that, at the time a subsequent annual 
 premium was paid, it was understood and 
 agreed, on the part of the company, that if 
 any thing should happen to prevent the in- 
 sured from paying the premium on the day 
 the same should become payable, the policy 
 should not thereby become null and void, and 
 that the policy should continue in force for a 
 reasonable time thereafter, so that the pre- 
 mium could be paid. An annual premium 
 became due July 15, 1862, and on the morning 
 of that date, insured left his house in appar- 
 ent good health for his place of business, iu- 
 
 45S 
 
911 
 
 PAYMENT OF PREMIUM. 
 
 912 
 
 When nonpayment does not affect the rights of the insured. 
 
 tending to pay the premium that day. He 
 ■was stricken with paralysis at 10 o'clock A. 
 M., became unconscious, and remained so till 
 lie died, the following day. Held, the pay- 
 ment of the premium was a condition prece- 
 dent to the continuance of the policy for an- 
 other year ; that the fatal condition of insured 
 on the day the premium became due did not 
 relieve plaintiff from the force of the condi- 
 tion ; that the agreement or understanding be- 
 tween the company and insured, to the effect 
 that if anything should happen to prevent 
 payment of the premium on the day it becamfe 
 due, the policy should not be void, and that 
 the party should have the right to make pay- 
 ment within a reasonable time, was binding 
 upon the parties as a modification of the con- 
 tract; that the premium having been tendered 
 within a reasonable time after it became due, 
 entitled the plaintiff to judgment (Hunt and 
 Leonard, JJ., dissenting). Howell v. Knicker- 
 locker Life Ins. Co., 44 N. Y., 276; b. c, 3 
 Rob., 232. 
 
 6. Misled by insurers' agents. Stipulated: 
 " In case the premium shall not be paid to 
 the company on or before the time prescribed 
 for the payment of the same, the policy shall 
 thereupon- be forfeited, cease and determine." 
 The contracit was made in Rhode Itiland by 
 an agent. No place of payment was pre- 
 scribed. The agent who delivered the policy 
 said he would come around regularly and 
 take up the premiums, that he might some- 
 times be out West, " But you hold it till I 
 come." He called and received two half 
 yearly premiums. That which became due 
 in January, 1873, was ready, but it was not 
 sent to the company's ofBce in New York, be- 
 cause the agent was expected to call for it. 
 But his agency had been revoked. Held, the 
 defendants should have given plaintiff notice 
 of any change in their mode of doing busi- 
 ness in respect to the payment of the premi- 
 ums ; that it was proper for the court to direct 
 the jury to find whether the plaintiff was 
 guilty of lacTies in not seeking a person to 
 receive the premiums. O'Beilly v. Guardian 
 Life Ins. Co., 1 Hun. (N. Y.), 460; s. c, 3 N. 
 Y. S. C, 487. 
 
 7. — The plaintiff did not have possession of 
 the policy, nor any knowledge as to when the 
 premiums would become due. She caused 
 inquiries to be made of .defendants at their 
 ofiice, w^ho told her that they would send the 
 4o6 
 
 necessary information, but they failed to do 
 so. She subsequently inquired, found that 
 the day of payment had passed, and tendered 
 the premium, which was refused. She so 
 continued to tender it until the decease of her 
 husband. Held, the defendant caused or con- 
 tributed to the plaintiflfs omission to pay the 
 premium the day it was due, therefore they 
 could not base a defense on a state of facts 
 created by themselves. LegUe v. Knickerbocker 
 Life Ins. Co., 2 Hun. (N. Y.), 616; s. c, 5 N. 
 Y. S. C, 193 ; Dean ®. JEtna Life Ins. Co., 2 
 Hun. (N. Y.), 358; s. c, 4 N. Y. S. C, 497. 
 
 8. — Plaintiff offered in July to pay the 
 premium which would become due August 
 31st. The agent said he had not the receipt 
 with him, but would keep the policy good 
 with the company. Held, evidence to sustaia 
 a finding that the agent waived prompt pay- 
 ment of the premium. Shear v. Phania 
 Mutual Life Ins. Go., 4 Hun. (N. Y.), 800. 
 
 9. Waiver. Stipulated : " The premium is 
 due and payable upon delivery of the policy, 
 and where credit is given to the extent of four 
 months, this policy will be valid, and in force 
 from that time, but unless the note or account 
 for the premium shall be paid within four 
 months from the date of this policy, the com- 
 pany will not be liable for any loss that may 
 occur after the expiration of the said four 
 months." "Agents of the company are nut 
 permitted to waive any stipulation or condition 
 contained therein." The policies were sent 
 direct from the office of the company to the 
 insured, without requiring prepayment, and 
 without limiting the payment of the premium 
 to any particular time. Held, it was proper 
 to submit to the jury the question whether 
 the condition recited was waived. Bmmanv. 
 Agrieultural Ins. Go., 2 N. Y. S. C, 261. 
 
 10. Misled by insurers' agents. Policy 
 provided that in case it became void for non- 
 payment of iiremium, it might be renewed 
 upon giving satisfactory evidence of good 
 health, and payment of the premium. It had 
 been the common practice to receive the pre- 
 miums after they had fallen due. There was 
 a failure to make payment of premium when 
 due. The person whose life was insured be- 
 came sick, and the insured represented that he 
 was in good health and procured a renewal of 
 the policy. Held, the delay of payment wai 
 not without the concurrence of the insurer, 
 which was a waiver of a literal compliance 
 
913 
 
 PAYMENT OF PREMIUM. 
 
 914 
 
 When nonpayment does not affect the rights of tlie insured. 
 
 with the condition requiring payment to be 
 luade at a particular time. Buckbee v. United 
 States Annuity and Trust Co., 18 Barb., 541. 
 
 11. — The premium was due May 29, 1857; 
 but prior to that time the general agents of 
 the defendant for the United States, notified 
 the insured that his premium would be due 
 May 29th next, and that unless the same 
 should be paid at the office of society's agent 
 at Washington, on or before thirty days from 
 that date, the policy would be void. The 
 thirtieth day, in numerical order, from May 
 29th, was Sunday. On Monday, June a9th, 
 1857, about the hour of noon, insured tendered 
 tlie premium to the agent at Washington, who 
 refused to accept, on the ground that the time 
 for renewing the policy had expired the pre- 
 ceding day. The insured died August 28, 
 1857. Held, the notice from the general agents 
 was sufficient to justify the insured in treat> 
 ing the 29lh as the time the premium was 
 payable, notwithstanding any words in the 
 policy to the contrary, for the agent had the 
 power to construe the effect of the agreement; 
 that as the last of the thirty days mentioned 
 in the notice was Sunday, a tender made on 
 Monday was good in law. GampbeU v. Inter- 
 juitional Life Soc. Co~, 4 Bos., 298. 
 
 12. — The plaintiff applied to defendant for 
 time to pay the premium which was then 
 about to become due, to which defendant's 
 president responded in writing, " Tour policy 
 will remain in force, by virtue of what has 
 aheady been paid, until November 29, 1870. 
 On that day she presented tlie promissory note 
 of anothei- person, which was received by the 
 company upon condition that it would be 
 taken as payment if satisfactory, and that 
 until proper inquiries could be made the next 
 day the policy should remain in force. On 
 the following day the defendants rejected 
 the note, and refhsed to receive the premium 
 which was then tendered. Held, no cause of 
 action could be maintained for the purpose 
 of compelling the defendant to accept the 
 premium and acknowledge the validity of the 
 contract. Hayncr «. American Popular Life 
 Ins. Co., 3 J. & Sp. (N. Y.), 266. But upon a 
 reargument, the court luM, that the plaintiff 
 had a right of action, and adjudged the policy 
 to be in full force and effect, s. c, 4 id., 211. 
 13. Diesnon. Stipulated: "The premium 
 shall be paid quarterly in every year," one of 
 which fell due October 1st. Deceased was 
 
 taken sick September 24th. The Sunday fol- 
 lowing was October 1st. He died in the after- 
 noon of that day. Insurer's office was not 
 open on Sunday nor was there nny one there 
 to receive the premium, but tins fact was not 
 known to plaintiff. The premium was ten- 
 dered and refused on Monday. Held, the law 
 sanctioned the postponement of the payment 
 until Monday, for Sunday was not a day for 
 the performance of contracts and doing of 
 secular business; if the premium had been 
 tendered on Sunday, there was no obligation 
 to receive it, and s(^ it did not become payable 
 till Monday. Hammond v. American Mutual 
 Life Lis. Co., 10 Gray, 306. 
 
 14. Usage. Upon the question whether 
 there was a completed contract: Held, com- 
 petent to prove usage for the contract to be 
 considered valid although premium has not 
 been paid. Baxter v. Massasoit Ins. Co., 13 
 Allen, 320. 
 
 15. Waiver. Stipulated: '"In case the 
 premium or premiums or any premium note 
 given therefor or any part of either shall not 
 be paid to said company on or before the time 
 specilicd for Uie paj-ment of the same, this 
 policy shall thereupon be forfeited, cease and 
 determine." Insurers made and delivered a re- 
 newal certificate, and in it acknowledged pay- 
 ment of the yeai-'s premium, but in it stated: 
 " Provided, the notes given in part payment 
 hereof are paid according to the tenor thereof" 
 Tliere was confiicting testimony as to whether 
 the agent had extended the time limited in 
 the note. The unpaid note remained in the 
 agent's hands, and when produced upon the 
 trial, the maker's signature had been torn off. 
 Held, if the company received the amount of 
 the note from their agent after it was due, the 
 delay in making payment was no ground of 
 forfeiture. Hodsdon v. Guardian Life Ins. Co., 
 97 Mass., 144. 
 
 16. Premium note. The policy was made 
 and delivered, and the premium note delivered 
 to the broker, who failed to deliver it to insur- 
 ers. Held, the delivery of the premium nt)te 
 to them was not a condition precedent to the 
 right of recovery. Mayo e. Pete, 101 Mass., 
 555. 
 
 17. — Upon the life of the husband. Pa}-- 
 ment of the first annual premium acknowl- 
 edged. Stipulated: "And a like annual 
 premium to be paid on or before April 11th 
 in every year during the continuance of the 
 
 457 
 
915 
 
 PAYMENT OF PREMIUM. 
 
 916 
 
 When nonpayment does not affect the rights of the insured. 
 
 policy; and in case any premium due upon 
 this policy shall not be paid at the day when 
 payable, it shall thereupon become forfeited 
 and void. This policy does not take efifect 
 until the premium is paid." Insurer took 
 one-fourth of first premium in cash, one- 
 fourth in a note payable in six months, and 
 one-half in another note payable in ninety 
 days after demand in writing, after the expira- 
 tion of five years from its date. The first note 
 became due, insurer's agent demanded pay- 
 ment, and the deceased said he would not pay 
 it or have anything more to do with the com- 
 pany; that he had abandonded the whole 
 thing. Held, the failure to pay the note did 
 not affect the right of the insured to recover 
 the whole sum insured; the insurer could not 
 take advantage of the statement of the de- 
 ceased, because they never assented to it, for 
 they continued to hold the notes and the in- 
 sured to hold the policy. McAllister v. New 
 England Life Ins. Co., 101 Mass., 558. 
 
 18. Is payment. The premium became 
 due February 9, 1871. The company's ageat 
 was indebted to the firm of which insured 
 was a member, and agreed with him to pay 
 the premium and debit it in account with the 
 firm. Beld, sufficient evidence to warrant the 
 jury in finding that the funds, which insured 
 had the right to conti'ol and apply to the pay- 
 ment of the premium, had come into the 
 hands of the agent before the premium be- 
 came due, and was a payment of the premium 
 within the meaning of the policy. Chickering 
 «. Globe Mutual Life Ins. Co., 116 Mass., 331. 
 
 19. Waiver. "In case of failure to pay 
 assessments, the policy shall be void so long 
 as the same are unpaid." After the Are oc- 
 curred, the agent received an overdue assess- 
 ment, and transmitted it to the company, who 
 retained it, and no assertion of a right to hold 
 the policy forfeited was made, until after they 
 were pressed to pay the loss. Held, a waiver 
 of the forfeiture. Lycoming County Ins. Co. 
 s. Schollenberger, 44 Penn. St., 259. 
 
 20. Misled by insurer's agents. Life 
 policy in favor of plaintiff. Stipulated : " The 
 premiums shall be payable on certain days 
 specified ; that nonpayment on the days named 
 shall cause a forfeiture of all claims against 
 the company." A premium became due June 
 30th, aud was tendered July 8th, but refused. 
 Held, in an action to recover all the premiums 
 paid, it was the plaintiff's right to prove that 
 
 438 
 
 the company's custom was to allow thirty 
 days grace for the payment of the premium, 
 and that the effect of the proof would be to 
 curtail the clause of forfeiture, and show that 
 forfeiture was not demandable at the day or 
 at all, if the premiums were paid in thirty 
 days; that if it was the practice of the com- 
 pany to notify the insured of the times her 
 premiums were due and payable, or if the 
 company dealt w:'th her so as to induce a be- 
 lief that the forfeiture would not be insisted 
 on in case she was derelict in making pay- 
 ment, then they ought not to be permitted to 
 take advantage of a default which they had 
 encouraged. Helme v. Philadelphia Life Ins. 
 Co., 61 Penn. St., 107. 
 
 21. Credit. The question in this case was 
 whether the defendant's agents agreed to re- 
 new the insurance upon the terms of the origi- 
 nal policy, and to wait only until the next day 
 for the plaintiff to adjust the payment of the 
 premium, or until such time as would be con- 
 venient. The policy stipulated, " No insur- 
 ance, whether original or continued, shall be 
 considered as binding until the actual pay- 
 ment of the premium." Held, if the jury were 
 satisfied from the evidence that there was an 
 agreement to insure and that the plaintiff was 
 to come in at any time and take his certificate 
 of renewal, and the plaintiff was to have cred- 
 it on the premium, and the plaintiff acted upon 
 that agreement, then ilie defendants were 
 estopped to deny the execution of the policy. 
 Heaton v. MaluUtan Fire Ins. Co., 7 B. I., 503. 
 
 22. — Insured had omitted to pay an as- 
 sessment of $23.58 for thirty days after the time 
 appointed for tbe payment, and continued in 
 default to the time the property was consumed. 
 Held, the omission did not avoid the policy. 
 Mixv. Mutual Ins. Co., 20 N. H., 198. 
 
 23. Embezzlement. The plaintiff. was to 
 pay an a nnual premium of $572.70 for five 
 years. He paid the first four in person to de- 
 fendant's agents. Accompanying the notice 
 sent him showing when the last premium 
 would become due, the agent wrote, " You 
 can forward the premium by bank check, or 
 your own private check on any bank or in- 
 stitution, or you can send by express." The 
 plaintiff sent the fifth premium by an express- 
 man who embezzled the money. About a 
 month after he sent it, he wrote to inquire 
 whether it had been received. The express- 
 man was prosecuted. Hdd, that a delivery of 
 
917 
 
 PAYMENT OF PREMIUM. 
 
 918 
 
 When nonpayment does not affect the rights of the insured. 
 
 the money to the expressman was a deliveiy 
 of it to the insurance company. Currier «. 
 ConttTiental Life Ins. Co., 53 N. H., 538. 
 
 24. Waiver. Boyd and Moody negotiated 
 with insured for insurance; Boyd prepared 
 the application, and stated that the policies 
 should be made without delay. Boyd was the 
 general agent of the company, and Moody 
 was a partner with Fellows, local agents for 
 the same company. Moody told insured that 
 it made no difference whether he paid the 
 cash premium at that time or when he should 
 take the policies. It was not paid, but the 
 policies were made, signed and put into the 
 hands of Fellows before the loss occurred, 
 who was afterwards directed by the president 
 of the company not to deliver them. Held, 
 the jury would have the right to determine 
 from the evidence that the insurer had waived 
 payment of the premium, notwithstanding the 
 by-laws of the company required it to be paid 
 before delivery of policies. Bragdon v. Apple- 
 ton Mutual Fire Ins. Co., 43 Me., 259. 
 
 25. Credit. The applicant signed a decla- 
 ration made a part of the policy, and in it 
 agreed that the policy should not be binding 
 till the premium should be received by insur- 
 ers or their accredited agent Held, parol evi- 
 dence was admissible to show a waiver of the 
 prepayment of the premium, and it would be 
 established by proving the agent's verbal 
 agreement that the policy should take effect 
 immediately, upon approval of the applica. 
 tion, and that the premium note might be 
 made for part, and the cash balance paid at 
 some future time, provided the insurer had 
 allowed the agent to hold himself out as 
 having authority to make such agreements; 
 the fact that the agent was not required or 
 expectel to pay over to the insurer the iden- 
 tical-money received for insurances effected 
 through his agency, that he received pre- 
 miums, mixed them with his own moneys, 
 credited insurer in general account, and 
 from time to time made general payments to 
 insurer on account, without refert-nce to any 
 particular premium by him received, and that 
 occasional settlements were made between in- 
 surer and agent, when their accounts were 
 adjusted, the balance ascertained and paid, 
 would be evidence from which the jury- 
 might infer insurer had recognized his acts. 
 Sheldon v. Comuetieut Mutual Life Ins. Go., 25 
 Conn., 207. 
 
 26. Waiver. Insurers' agent accepted tlie 
 risk, gave a binding receipt for the premium, 
 and agreed that a policy should be procured 
 from the principal's oiflce. No premium was 
 in fact paid. The usual printed policy pro- 
 vided that no insurance should be binding 
 until payment of premium, but the agent 
 agreed specially to give insured credit for it. 
 The company never delivered the policy. Held, 
 payment of the premium was waived. Day- 
 ton Ins. Co. V. Kelly, 24 Ohio St., 345. 
 
 27. Insurers must declare forfeiture. A. 
 failure to pay the premium at the time stipu- 
 lated was to create a forfeiture of the policy. 
 When the annual premium became due, the 
 company accepted the note of the insured for 
 it, payable at a time future. The note pro- 
 \ided the policy should be void in case the 
 money should not be paid at the time men- 
 tioned in the note. It was not paid at matu- 
 rity. Held, by the agreement of the parties, 
 the payment of the money mentioned in the 
 note was a condition subsequent; that to ena- 
 ble the insurers to work a forfeiture of the 
 policy, they must on the day the note became 
 due, during the business hours of the day, de- 
 mand payment, and if not paid, declare the 
 policy forfeited ; that in the absence of such 
 demand and declaration, Uie policy must re- 
 main valid. Mutual Benefit Life Im. Co. v. 
 French, 2 Cin. Sup. Ct., 331. 
 
 28. Paid by notes. Policy on a life for a 
 certain consideration, and a like sum to be 
 paid on or before Mai-ch 12th, of every year, 
 during the continuance of the life. The agent 
 received one-fourth of the premium in goods ; 
 one-fourth in a promissory note due at six 
 months, and the other half in another promis- 
 sory note due in five years ; both notes were 
 payable to the insurers' order. The policy 
 stipulated: "In case any premium on tliis 
 policy shall not be paid on the date when pay- 
 able, the policy shall thereupon become for- 
 feited and void ; the policy and any sums that 
 shall become due thereon from said company, 
 are pledged and hypothecated to said com- 
 pany, and they have a lien thereon to secure 
 payment of any premium on which credit may 
 be given, and of any note or security therefor." 
 The sixmontlis note was not paid at maturity; 
 insured died about a month after it ma- 
 tured. Held, the contract treated the first 
 year's premium as paid. The condition of 
 forfeiture applied only to premiums that 
 
 459 
 
919 
 
 PAYMENT OF PREMIUM. 
 
 920 
 
 When nonpayment does not affect the rights of the insured. 
 
 should become due in every year thereafter. 
 The note wliicli had matured and was unpaid 
 contained no agreement for a forfeiture of the 
 contract in case the money mentioned in it 
 sliould not be paid. Therefore insurer was 
 liable for the claim, less the two notes out- 
 standing at the time the death occurred. New 
 England Life Ins. Co. v. Hasbrook, 32 Ind., 
 447. 
 
 29. — A general agent authorized to solicit 
 applications and receive the first premiums 
 has the right to waive the condition requiring 
 the premium to be paid in money. He ma3- 
 accept the promissory note of the applicant or 
 of a third party as payment of the premium, 
 or may undertake to pay the premium him- 
 self, and either of these modes binds the com- 
 pany, notwithstanding the policy provides 
 that it shall not be effectual till the cash pre- 
 mium is paid (citing Goit a. National Protec- 
 tion Ins. Co., 25 Barb., 189 ; Boehen «. Wil- 
 liamsburg Ins. Co., 35 N. Y., 131). Mississippi 
 Valley Life Ins. Co. ii. Neyland, 9 Bush, 430. 
 
 30. Credit. An agent, authorized to solicit 
 insurance and receive premiums, was intrusted 
 with blank receipts, authorized to deliver 
 them upon payment of the necessary premi- 
 um ; they stipulated that the contract should 
 take effect at the payment of premium if the 
 company should approve the application, but 
 if it should be disapproved, the money should 
 be refunded. The agent was indebted to the 
 applicant $160. He took from him an appli- 
 cation for a policy requiring a premium of 
 $360; settled the debt between them, and ac- 
 cepted and remitted to the company the ap- 
 plicant's note to the company's order for the 
 balance. Held, the agent could make him- 
 self responsible personally for a portion of the 
 premium if he had authority to receive it 
 and the insured acted in good faith. Mis- 
 simippi Valley Life Ins. Co. ■». Nayland, 9 
 Bush., 480. 
 
 3 1 . Paid by note. Policy for benefit of the 
 wife $10,000, at an annual premium of $690.60, 
 payable August 16th in each and every suc- 
 ceeding year, for nine years. Stipulated: 
 " Nonpayment of annual premiums not to 
 work a forfeiture, but the sum insured shall 
 be reduced in proportion as the sum of the an- 
 nual payments paid shall bear to the sum of 
 ten annual payments, and if insured shall fail 
 to pay annually in advance the interest on any 
 unpaid notes or loans due by insured to tlie 
 
 460 
 
 company on account of the annual premiums 
 menticmed, then the company shall not be li- 
 able for the sum insured, or any part thereof, 
 and this policy shall cease and determine." 
 The premiums were to be paid half in note 
 and half in cash. The cash payments for 1868 
 and 1869 were paid, but that which fell due 
 August 16, 1870, was not paid, nor was the in- 
 terest on the two preceding notes paid. The 
 husband agreed for a reduced policy, and the 
 company issued a certificate to that effect, con- 
 tinuing the policy in force to August 16, 1871, 
 conditioned not to be valid until payment of 
 premium " as per margin." The necessary 
 amount of premium was paid. Insured failed 
 to pay the interest on the notes which became 
 due August 16, 1871, and died Januaiy 2, 1872. 
 Held, the contract was completely executed so 
 far as insured was concerned; the company 
 was bound to enforce the payment of the in- 
 terest in the same manner as though they were 
 dealing with a stranger to the C(mlract; that 
 the person for whose benefit the contract was 
 made could not be affected by the default of 
 him to whom the loan was made, except so far 
 as the contract, by its terms, pledged or hy- 
 pothecated the insurance money for the ulti- 
 mate payment of the loan and accrued inter- 
 est; that the company was bound to pay the 
 commuted or reduced amount, minus the last 
 note and interest accrued. 8t. Louis Mutual 
 Life Ins. Co. o. Grigsiy, 10 Bush, 810. 
 
 32. Waiver. Stipulated: "When a note 
 has been taken for a cash premium, any de- 
 fault shall suspend the company's liability 
 until payment made." Note was due April 
 1st. Insured had another policy in the com- 
 pany with six months to run, he required it 
 canceled ; insurer gave him credit for the un- 
 earned premium, charged him with the 
 amount of the note, and stated : " You can re- 
 mit the balance with the inclosed receipt for 
 unearned premium." On receipt of it, insured 
 inclosed the balance, and asked the company 
 to transmit the note. The fire occurred before 
 that was done, and insurer, on hearing of the 
 fire, instructed the plaintiff not to send the 
 premium. Seld, when the company agreed 
 to receive payment of the balance of the pre- 
 mium, and to give credit for the unearned pre- 
 mium on the other policy, the waiver of for- 
 feiture was complete. Sims v. State Ins. Co., 
 47 Mo., 54. 
 
 33. Payment after death. Policy to the 
 
921 
 
 PAYMENT OF P^IEMIUM. 
 
 922 
 
 When nonpaymenb does not affect the rights of the insured. 
 
 plaintiff upon her husband's life for an annual 
 premium, i(93.60, one-fourth of which was paid 
 in cash, and the balance in three equal suras 
 by promissory notes, payable in tliree, six and 
 nine montlis. The last matured August 15th, 
 and was not paid. Insured died on that day, 
 and without giving any notice of the death, 
 the note was paid and taken up on the 19th. 
 Held, no defense to the action, jp'roehlich, v. 
 Atlas Life Ins. Co., 47 Mo., 406. 
 
 34. Misled by insurer's agents. Stipu- 
 lated : " If default shall be made in the pay- 
 ment of any of the annual premiums, at tlie 
 time limited for their respective payments, 
 such default shall not work a forfeiture of the 
 policy, but the sum insured shall be com- 
 muted, or reduced to such proportionate part 
 of the whole as the premiums paid shall bear 
 to tiie ten annual pa^'ments stipulated to be 
 paid. Also, agents not authorized to grant 
 permits, make, alter or discharge contracts or 
 waive forfeitures. Receiving premium after 
 the day limited is an act of grace, and forms 
 no precedent in regard to future payments." A 
 premium, due March 28th, was tendered two 
 days thereafter, and reftised. Previous pre- 
 miums had always been paid weeks after they 
 were due, and had been received without ob- 
 jection ; some of them had been received with- 
 out objection six weeks after due, and similar 
 facts were proven in respect to another policy 
 on the same life, by the same insurer. Seld, 
 time was not the essence of the contract; for 
 the conduct of the parties themselves did not 
 allow such a construction ; by accepting pre- 
 miums after they were due, insurer had in- 
 duced insured to believe that a failure to com- 
 ply strictly with the terms of payment would 
 not prejudice the rights of insured. Tlwmpson 
 B. St. Louis Mutual Life Ins. Co., 52 Mo., 469. 
 
 33. Usage. The policy was made Febru- 
 ary 25th, confessing payment of premium, and 
 stipulating there should be no insurance until 
 payment of premium. Insured paid the pre- 
 mium March 1st, after the loss, but before in- 
 surer received notice of it. Insured was per- 
 mitted to prove that by general usage of the 
 company, p.iyment of the premium was not 
 required at tlie time policies were delivered ; 
 and as evidence of that usage, receipts for pre- 
 miums bearing date after policies had com- 
 menced to run were given in evidence. Seld, 
 the iiayment of the premium after the Are had 
 no effect upon the contract, for it was a com- 
 
 pleted contract when the policy was deliv- 
 ered. Pino V. Merchants Mut. Ins. Co., 19 La. 
 An., 214. 
 
 36. Credit. At the time the contract was 
 entered into, the premium was not paid, but 
 the insurer's agent was requested to send the 
 bill to the treasurer of the society insured, for 
 payment, to which the agent replied : " That's 
 all right.". The policy was made and depos- 
 ited in the safe, subject to call. The compa- 
 ny's clerk was instructed to collect the pre- 
 mium. He called several times at the hall of 
 insured for that purpose, but did not find any 
 person who represented them. Held, the con- 
 tract was complete, and tlie nonpayment of 
 the premium was no defense to the action. La 
 Societe v. Morris, 24 La. An., 347. 
 
 37. Extension of time. Stipulated: "Pol- 
 icy shall be forfeited if a member fails to pay 
 an assessment called for within thirty days 
 after a publication of five consecutive days of 
 the notice." August 8, 1870, the company 
 published a notice in which members were 
 required to make payment at the office within 
 tliirty days of date of publication, to be made 
 eight consecutive days in the N. O. Times, 
 Bee, Daily Picayune, and German Gazette. 
 The notice under which forfeiture was claimed 
 was published for seven days, and the forfeit- 
 ure was declared before thirty days had 
 elapsed. Held, the second notice was an ex- 
 tension of the time of publication ; that the 
 courts do not favor forfeitures, and those who 
 would enforce them must bring themselves 
 strictly within the terms of the forfeiture. 
 Fitzpatrich v.Mutual Benevolent Life Ins. Ass^n, 
 25 La. An., 443. 
 
 38. Dies non. Stipulated: "The premium 
 must always be paid before 12 o'clock noon 
 of the day upon which it falls due ; " also for 
 the payment of a certain consideration " in 
 nine annual payments to be made on or be- 
 fore May 7th in each year until the last pay. 
 ment is completed, May 7, 1878; and, of the 
 interest annually on all premium notes upon 
 this policy, on or before May 7fh at noon in 
 each year, until the said notes are paid." 
 May 7, 1870, the premium for the ensuing 
 year was settled by payment of one-eighth 
 thereof, in cash, and three promissory notes 
 of $129 each, payable at three, six and nine 
 mouths without grace. The other half con- 
 stitutes a loan, the interest on which was 
 included in the settlement. The receipt for 
 
 461 
 
923 
 
 PAYMENT OF PREMIUM. 
 
 924 
 
 When nonpaj^ent does not aftect thu rights of the insured. 
 
 the money and the notes stated, " In case said 
 notes or either of them shall not be paid on or 
 before the maturity thereof, said policy shall 
 at once become void without notice." Each 
 note provided that the policy was to be void 
 in case this note is not paid at maturity ac- 
 cording to contract in said policy. One of 
 the notes fell due on Sunday, August 7th. 
 Insured died at one o'clock Monday, August 
 8th. Seld, the note was not due legally till 
 Monday the 8th, and insured had all of Mon- 
 day to pay it, for the note and the receipt con- 
 tained the stipulation in general terms, " if 
 not paid at maturity." Leigh v. Knickerbocker 
 Life Ins. Co., 26 La. An., 436. 
 
 39. Misled by insurer's agents. Policy 
 upon a life, for an annual premium due in 
 March, every year. The premium was not 
 paid until November, and the renewal receipt 
 was ante dated. Insurer's agent had occasion- 
 ally advanced the premium for insured, and 
 had assured her that it was not necessary for 
 her to pay it on the exact day named in the 
 policy. He had induced insured to believe 
 that he had advanced this premium when she 
 paid it in November ; she stated to the insur- 
 er's agent that her husband was in the state 
 of Missouri; th-at she had received a letter 
 from him and he has in his usual health; she 
 made the same statement to the company's med- 
 jcal examiner. Held, her statements were mere 
 representations, independent of the contract, 
 and collateral to it; though they were untrue, 
 they could not afl'ect her rights nor the com- 
 pany's liability, because they did not in- 
 duce the risk, nor were they material to it. 
 Mutual Bene/U Life Ins. Co. v. Sobertson, 59 
 111., 123. 
 
 40. Stranger liable for. Premium paya- 
 ble quarterly. The Bismarck Bund became lia- 
 ble to insurers for the premiums. They fell 
 due on the 9th days of October, January, April 
 and July of each year. The premium which 
 matured January 9, 1873, was not paid because 
 insured neglected after January 1, 1873, to pay 
 his weekly dues to the Bund. He died Feb- 
 ruary 26, 1873. Held, the Bund was liable to 
 insurer for the ultimate payment of the pre- 
 mium upon which the company could jely if 
 it chose, and carry the risk. The company 
 made no declaration of forfeiture in the life- 
 time of the insured. His death fixed the lia- 
 bility of all parties to the agi-eement which 
 then became absolute. Hence insurer must 
 462 
 
 not be allowed to set up the nonpayment of 
 the premium in avoidance of the claim. Ten- 
 tonia Life Ing.Co. v. Anderson, 77 111., 382. 
 
 41. Misled by insurer's agents. Policy 
 for annual premium of $63.20 to be paid on 
 or before August 3 1st in each year, stipulated : 
 " If premium shall not be paid on or before 
 the day herein mentioned or any note or notes 
 received by the company in part payment of 
 any premium on the day or days on which 
 the same shall become due (except note given 
 for half the annual premium payable twelve 
 months after date) or shall not renew such 
 note when the same shall become payable, or 
 pay the interest or discount thereon the policy 
 shall be void. The dividend or profits, if any, 
 which may become payable shall be applied 
 toward the payment of the note taken for half 
 premium, and insured in case this policy shall 
 cease or become void, shall be liable to pay all 
 the notes taken for premiums which shall re- 
 main unpaid (except the balance remaining 
 unpaid on the note taken for half premium, 
 payable twelve months from date)." It was the 
 company's custom to send to policy holder in 
 every year prior to the date the annual premi- 
 ums would become due, a statement of the 
 amount to be paid and a note for the balance. 
 Premium which became due August 31, 1866, 
 was not paid. October 24th following, de- 
 ceased sent a letter to the agent at Milwaukee, 
 covering $35, and in reply received, an ac- 
 knowledgment of it with a renewal note for 
 him to execute, and a request to remit $2.30. 
 Notice was never sent of the amount of cash 
 or note which the company required to settle 
 the premium that became due August 31, 
 1867. Insured became sick August 30, 1867, 
 and died September 10th, following, the 
 premium for that year being unpaid. Held, 
 deceased had the right to give his note for one- 
 half the annual premium ; that he could not 
 know what amount of cash was required till 
 informed by the company, for it alone knew 
 the amount of the dividend. Hence insurer 
 could not insist upon a forfeiture of the policy 
 for nonpayment of premium. 111. S. C. Hrnie 
 Life Ins. Oo. v. Pierce, 5 Ins. L. J., 290. 
 
 42. Waiver. October 6, 1863, after the pre- 
 mium was overdue, the company received it 
 and wrote : " As this is past due, it will accord 
 with our rules for you to send us a certificate 
 of good health, and in your case, we will be 
 satisfied with your own. You did not instruct 
 
925 
 
 PAYMENT OF PREMIUM. 
 
 926 
 
 When nonpayment does not affect the rights of the insured. 
 
 me where to send the renewal receipt, and so 
 1 have not inclosed it" Seld, receiving the 
 premium renewed the policy, unless it was 
 understood it was taken upon condition that 
 a certificate of good health must be delivered. 
 RoekweU v. Mutual Ltfe Ins. Co., 20 Wis., 335. 
 But upon a subsequent trial it was ?ield, 
 whether that was the condition was a question 
 for the jury to determine from all the sur- 
 rounding facts (s. c, 21 id., 548) ; and upon the 
 third trial, the jury found a verdict for the 
 plaintiff, which was affirmed (s. c, 27 id., 
 372). 
 
 43. Waiver. Stipulated: "Whenever a 
 promissory note shall be taken for the cash 
 premium, the policy shall be issued upon the 
 express condition that if the note is not paid 
 within sixty days after due, all obligations of 
 the company to insured shall be suspended 
 until such time as the note shall be fully paid ; 
 and whenever an assessment shall have been 
 made upon premium notes, and the sum de- 
 termined which each person shall pay, if such 
 3um shall not be paid within thirty days after 
 demand, the directors may at their option an- 
 nul the policy and may retain the note and 
 collect the sum so assessed." The executive 
 committee notified insured that unless the 
 class of policy holders, of whicli he was one, 
 paid their assessments by a specified future 
 day, their policies would be annulled on that 
 day. After the loss occurred, and with knowl- 
 edge of it, and more than sixty days after the 
 note was overdue, defendant received the un- 
 paid premium. Seld, the notice was nothing 
 more than a threat If insurer would exercise 
 the right to annul the policy for unpaid assess- 
 ments, it must be done unconditionally, in 
 plain and positive terms, for the law will not 
 allow one party to put an end to his liability 
 by saying to the other before or after default, 
 "Unless you perform your part of the con- 
 tract by a certain future day (naming it), I 
 shall elect to consider myself relieved from its 
 obligations." Held, also, insurer had the 
 right to take what premium had been earned 
 up to the time the policy was in force; but ac- 
 cepting the whole of it, was receiving compen- 
 sation for the risk when the loss occurred; and 
 the acceptance of the full premium, being in- 
 consistent with the assertion that the policy was 
 suspended when the loss occurred, must be re- 
 garded as an intention on the part of insurer 
 to waive the forfeiture, hence the policy was 
 
 in force when the loss happened. Joliffe v. 
 Madison Mutual Ins. Co., 89 Wis., 111. 
 
 44. Misled by instirer's agents. Stipu- 
 lated for the payment of premiums upon a 
 day named. Five premiums were paid to one 
 agent, to whom insured said when he paid the 
 last: " I suppose my notices go to Clinton, as 
 my policy is dated there, but I want it changed 
 to Lyons." The agent told him it wa8 not 
 necessary ; that they had a complete record iu 
 the office, and when a policy holder changed 
 his post office address, it was noted, and that 
 he would be around to collect. The agent 
 quitted the company's service, never told any 
 of the officers what he had said, and no notice 
 was sent to insured. The premium became due 
 and was not paid, and insured died four days 
 after it was overdue. Held, if the company's 
 agent gave the insured reasonable ground to 
 believe that a strict performance with respect 
 to the payment of the premium would not be 
 required, then an offer to pay after the death 
 of the person insured was a good tender, 
 Mayer v. Mutual Life Ins. Go. of Chicago, 33 
 Iowa, 304. 
 
 45. Paid by notes. Stipulated: "Pay-' 
 ment to be made upon proof of notice and 
 death, less the balance of the year's premiums, 
 and all notes given for premiums, if any. If 
 the premiums or the interest upon any note 
 given for premiums shall not be paid on or 
 before the days mentioned for payment thereof, 
 then, and in every such case, the company 
 shall not be liable for the payment of the 
 whole sum assured; and if default shall be 
 made in the payment of any premium, they 
 will pay, as above agreed, as many tenth parts 
 of the orginal sum insured as tliere shall have 
 been complete annual premiums paid at the 
 time of such default" The consideration 
 was $24.84 semi-annually, in cash, and the 
 annual premium note of $43.25. Held, the 
 entire premium for each year was to be $93.93 ; 
 that it was not necessary to pay the annual 
 premium notes in order to continue the policy, 
 because the contract expressly provides tliat 
 the company shall not be liable to pay the 
 whole sum insured, but shall have the right 
 to deduct premiums or interest upon any notes 
 given for premiums. OJide v. Northwestern Life 
 Ins. Co., 40 Iowa, 357. 
 
 46. Not condition precedent. Policy on 
 the life of a slave for five years, upon payment 
 of an annual premium. This payment was 
 
 463 
 
927 
 
 PAYMENT OP PEEMIUM. 
 
 928 
 
 When nonpayment does not aifect the rights of the insured. 
 
 not, by the terms of the policy, made a condi- 
 tion on wliich insurance was to continue. 
 Held, failure to pay the premium did not aflFect 
 the company's liability. Woodfln, r. AsheciUe 
 Mvi. Ins. Co., 6 Jones' Law, 558. 
 
 47. Misled by insurer's agents. The de- 
 ceabed became delinquent in payment of dues, 
 but he subsequently transmitted to the com- 
 pany a sum of money in payment of all dues, 
 •which was received and retained without noti- 
 fying him whether it was or was not satisfac- 
 tory. Held, a waiver of the default; if the 
 money was not sufficient to pay the past dues, 
 it was the duty of the company promptly to 
 to have notified him of the fact. The com- 
 pany could not remain silent till after his 
 death and then deny that he was a member. 
 Georgia Matonia Mutual Life Ins. Go. v. Gib- 
 son, 52 6a., 640. 
 
 48. Constmction. Policy executed Octo- 
 ber 15, 1870, provided for the payment of 
 the annual premium on or before October 
 15th of each year. Stipulated : " If the first 
 annual premium shall have been duly paid, 
 and default shall be made in the payment of 
 any premium thereafter to become due and 
 payable, then such default shall not work a 
 forfeiture of this policy ; but if it be surren- 
 dered within thirty days after date of such 
 default, this company will issue a paid up 
 policy, payable as herein before provided, for 
 the amount which could have been bought 
 with the net value of this policy. The first 
 premium was not paid October 15, 1870, but 
 it was paid January 19, 1871, and the second 
 annual premium, due October 15, 1871, was 
 not paid at the time of the death of the person 
 insured, which took place October 34th. Held, 
 np to October 15, 1871, it was an insurance for 
 the sum named in the policy; after that time 
 it was an insurance for such an amount, 
 " fully paid up," as could have been pur- 
 chased with the net value of the policy, and 
 nothing more. Mound City Mutual Life Ins. 
 Co. V. Twining, 12 Kan., 475. 
 
 49. Payment tendered in time. Stipu- 
 lated: "This insurance shall be subject to 
 conditions indorsed," among which were the 
 following: "No policy will be considered 
 valid for more than fifteen days after the ex- 
 piration of the period limited therein, unless 
 the premium and duty for the renewal shall 
 have been paid within the time. Insurance 
 for a less period than one year will terminate 
 
 464 
 
 at six o'clock of the evening of the day speci- 
 fied, without the allowance of fifteen days." 
 The year expired March 25, 1831, and the loss 
 occurred on the 31st, at which time no pre- 
 mium had been tendered. Held, insurers were 
 liable, for the contract was an insurance for 
 one year and fifteen days. McDonnell v. Ca/rr, 
 1 Hayes & Jones, 356. 
 
 50. Stranger Uable for. Policy on life for 
 the payment of an annual premium in May. 
 Insured borrowed a sum of money from insur- 
 ers, and gave bond, with surety, the surety 
 being bound for the premium. Insured deliv- 
 ered to the company an accepted bill for the 
 premium, dated June 21st, at fifty days, which 
 was dishonored. He died suddenly, in Lon- 
 don, September 22d. Hdd, the surety would 
 have had no right before the death of insured 
 to free himself from his obligation to pay the 
 premium, hence insurers could not relieve 
 themselves from the policy by notifying 
 the surety of their abandonment of all claims 
 against him for the premium in arrear. Meld, 
 also, acceptance of the bill was payment of the 
 premium. Reversed, and a trial by jury or- 
 dered. Barker «. 'North British Ins. Co., 9 S, 
 «fc P., 869; 6 id., 83; 3 Scot. Jur., 567. 
 
 51. New agreement. Stipulated: "Noio- 
 surance will be held in force until the pre- 
 mium shall have been actually paid to the 
 company, nor shall any policy be valid be- 
 yond fifteen days after the expiration of auy 
 year, unless the premium for its renewal shall 
 have been actually paid to the company. In- 
 surances may be revived within any period 
 not exceeding three months, on proof satisfac- 
 tory to the directors, of the unimpaired health 
 of the person whose life is insured, and pay- 
 ment of a fine of ten shillings per cent on the 
 sum insured." Birections were given to 
 agents, that "Every policy must be revived 
 within fifteen days after the same becomes 
 due, or it will become void. If any person 
 shall omit to renew his life insurance within 
 the fifteen days before mentioned, the agent 
 shall immediately give notice to the secretary, 
 and such policy shall not be afterwards re- 
 newed without the fine, and subject to the 
 restrictions stated in the general printed pro- 
 posals and conditions of the company. All 
 receipts for the renewal of life assurances not 
 paid within a month from the expiration of 
 the policies are to be returned to the office at 
 the end of that period." Insurer's agent took 
 
929 
 
 PAYMENT OF PREMIUM. 
 
 930 
 
 When nonpayment is fatal to recovery. 
 
 bills for the amount of the several premiums, 
 and debited himself vritb the premium in ac- 
 count with the company. The bills were not 
 paid, and he took security for them. A subse- 
 quent premium became due in December, 1S46. 
 The usual receipt was forwarded by insurers 
 to agent. It was not paid, nor did the agent, 
 at the time it was due, debit himself with the 
 premium; but in his next quarterly account he 
 did so, and shortly afterwards, at request of 
 insurers treasurer, paid the amount. Similar 
 transactions took place in 1847 and 1848. The 
 life stopped in 1849, and the receipts for the 
 premiums disposed of in this way still re- 
 mained in the agent's possession, and were 
 afterwards redeliveretl to the company. HM, 
 an action should be brought to try the ques- 
 tion whether the retention of the premiums, 
 with knowledge of all the facts, did not con- 
 stitnte a new contract to reinstate the policy. 
 But if the life had fallen before they had 
 knowledge of the fact, there would not be any 
 evidence of a new contract Busteed o. West 
 of England Ins. Co^ 5 Irish Ch., 553. 
 
 58. Waiver. The plaintiff admitted non- 
 payment of premiums within the period re- 
 quired by the terms of policy, but relied upon 
 the receipt for the premiums delivered by the 
 company's agent as amounting to a waiver of 
 payment, or a contract to revive the policy. 
 The company pleaded a condition of the pol- 
 icy providing for a specific mode for settling 
 the rights of the parties in case of a lapse 
 within a limited period. Held, the condition 
 in the policy did not preclude the parties from 
 waiving the lapse in any other mode they 
 might agree to. Supple v. Cann, 9 Ir. C. L. 
 R,l. 
 
 V. When uonpatmest is fatal to 
 
 BECOVEET. 
 
 1. Premium became due June 1, 1873; the 
 general agent wrote July 9th, inquiring wheth- 
 er insured wished to renew the policy; to 
 which no reply was given till August 88th, 
 when a draft was rem itted covering the amount 
 The general agent's clerk, in the absence of 
 his employer, acknowledged receipt, stating 
 that when the general agent should return 
 proper renewal receipt would be transmitted. 
 Insured died September 1st The premium 
 was remitted to the company, who directed 
 the general agent not to deliver renewal receipt 
 30 
 
 until furnished with satisfactory evidence of 
 the good health of insured. The policy and 
 renewal receipts contained notices that agents 
 had no authority to receive premiums after 
 due. Held, notices to insured of the agent's 
 limited authority, and payment to him of an 
 overdue premium, would not revive the policy 
 unless the principal had notice of the fact 
 and remained silent (U. S. Cir. Ct, Ohio). 
 McGowan v. Charter Oak Life Ins. Co., 4 Am. 
 L. Rec, 559. 
 
 2. Insured was owner of schooner, for which 
 he held policy, $5,000, to expire December 5, 
 1869; premium paid by promissory note, to 
 mature October 8, 1869. Stipulated in the 
 note and policy: "In case this note is not 
 paid at maturity, the full amount of premium 
 shall be considered earned, and the policy 
 void while the note remained overdue." She 
 left the port of Oconto, bound for Chicago, 
 on the night of October 7th, and ran aground 
 on Strawberry Reef, near the outlet of Green 
 Bay, about 2 o'clock on the morning of the 
 8th. The master, who was owner, made in- 
 effectual efforts to get her off, then took a 
 boat to Hennmonee, where he arrived at about 
 11 o'clock in the morning. He telegraphed 
 to his agents in Chicago to pay tlie note, and 
 payment was made at 11 : 30 A. M. of the 8th, 
 without disclosing the condition in which the 
 vessel then was. Held, she was lost when she 
 was stranded on the bar, for she was then a 
 helpless and inert mass, incapable of perform- 
 ing the functions of a ship, and the insurers 
 were therefore discharged. Per Blodgett, J., 
 northern district of Illinois. (There must be 
 some error as to the time when the note 
 became due, because, if it fell due on the 
 8th, the maker had all that day to make pay- 
 ment The vessel was lost at 2 A. M. on that 
 day, while the note was not overdue. Ed.) 
 Cardwell v. Sepitblie Ins. Co., 7 Chi. Leg. 
 News, 282. 
 
 3. Policy on a life. Premium became pay- 
 able April 10, 1847 ; death occurred three days 
 thereafter, and a day or two thereafter premi- 
 um WHS tendered to insurer's agent, who de- 
 clined to receive it Plaintiff was permitted 
 to give in evidence a prospectus delivered by 
 the defendant before the application was 
 signed, which recited : " Every precaution is 
 taken to prevent a forfeiture of the policy. A 
 parly neglecting to pay his annual premium 
 within thirty days after it is due, or paying 
 
 465 
 
931 
 
 PAYMENT OP PREMIUM. 
 
 932 
 
 When nonpayment is fatal to recovery. 
 
 assessments within the sixty days specified in 
 the charter, or refusing to give satisfactory 
 security on the note, forfeits the interest he 
 has in the policy." Held, the policy must be 
 considered as embracing the entire contract 
 between the parties, that the prospectus could 
 not be received to aid the plaintiffs case. 
 Ruse V. Mutual Benefit Life Ins. Co., 23 N. T., 
 516; B. c, 26 Barb., 556; 24 N. Y., 65.3; see s. 
 c, 8 Ga., 534. 
 
 4. Stipulated : " In case the note or obliga- 
 tion given for the premium herefor be not 
 paid at maturity, the full amount of the pre- 
 mium shall be considered as earned, and this 
 policy becomes void, while said note or obliga- 
 tion remains overdue and unpaid." The note 
 became due, and while it remained unpaid a 
 loss occurred. Held, insured had no right of 
 action ; and an agreement by the company's 
 agent, that the note might lie over for a few 
 days, was an agreement not to press payment. 
 It was not an agreement to continue or revive 
 the policy. Wall v. Home Ins. Co., 36 N. Y., 
 157; s. c, 8 Bos., 597. 
 
 5. Policy upon the husband's life for the 
 sole and separate use of his wife, acknowl- 
 edged payment of the premium. Stipulated: 
 " If at any time any note, check or draft, other 
 than the premium note, for one-half of the an- 
 nual premium, shall be given in payment, or 
 in part payment of any premium then due, or 
 to become due, and such note, check or draft 
 shall not be paid according to the provisions 
 thereof, then the policy shall become immedi- 
 ately void, and the insurers released from all 
 obligations under it." No cash was paid, but 
 four notes were given by the husband: one 
 for half the premium, and the other three 
 equal sums each for the other half, payable at 
 three, six and nine months, respectively. They 
 contained an agreement that in case of non- 
 payment at maturity, the policy should be- 
 come void. The note which matured in three 
 months was overdue when the husband died. 
 Held, insurers were released. Baker v. Union 
 Life Inn Co., 43 N. Y. (4 Hand), 283; b. c, 6 
 Abb. Pr. (N. 8), 144; 37 How. Pr., 126. 
 
 6. The policy lapsed for a failure to pay 
 premiums due in September and December, 
 1869, and March, 1870. On the 28th of the 
 last month the premiums were paid and re- 
 ceived, and the person for whose benefit the 
 policy was made signed a paper stating that 
 insured was then well and in as good health 
 
 466 
 
 as when first examined. It appeared she had 
 a severe attack of infiammatory rheumatism in 
 February preceding, which resulted in disease 
 of the heart, and from which she died within 
 six days after the premium was paid. Held, 
 the policy was void. Harrit •e. Equitable Life 
 As». Soc, 3 Hun. (N- Y.), 724; 8. c, 6 N. Y. S. 
 C, 108; affirmed, 13 Abb. L. J., 248. 
 
 7. B. made insurance upon his life, and as- 
 signed the policy to his wife, which stipu- 
 lated: "A failure to pay any note given for 
 the premium, shall render the policy void." 
 December 11, 1869, about six months after the 
 assignment, she delivered her husband's 
 promissory note for $120.84, payable four 
 months after date, without grace, in part pay- 
 ment of the premium, upon which there was 
 a printed clause providing that the policy 
 should be void if the note should not be paid 
 at maturity. The money mentioned in the 
 note was tendered April 12, 1870, but defend- 
 ant refused it. Her husband died August 9th, 
 same year. Held, insurers were released. 
 Roehner v. Knickerbocker Life Ins. Co., 4 Daly, 
 512. 
 
 8. Permission to reside south expired July 
 1, 1870, and the premium was due October 27, 
 1870. A person was sent to pay it. The 
 agent in charge of the business required an 
 additional premium of two and a half per 
 cent., because the insured was then at New 
 Orleans. The agent was asked if he would 
 keep the policy alive till next day, until the 
 person who sent him could be seen. The 
 agent said he would. On the following day, 
 the whole premium was offered to the com- 
 pany, including the sum required for residence 
 in the South, and it was refused. Hdd, the 
 policy ceased to have any valid force after 
 July 1, 1870 ; that the agreement of the agent 
 to hold it good, from the time the annual 
 premium became due to the following day, 
 was not binding, because it was without con- 
 sideration. Evans V. United States Life Ins. 
 Co., 3 Hun. (N. Y.), 587; s. c, 6 N. Y. S. C, 
 331. 
 
 9. The premiums were to be paid on or be- 
 fore the 25th days of October, January, and 
 April, then next, and an annual premium on 
 or before July 25th. Stipulated : " To he void 
 in case the premiums shall not be paid at 
 maturity." The premiums, which fell due in 
 April and July respectively, were not paid, 
 but the plaintiff took the policy to the insurer's 
 
933. 
 
 PAYMENT OP PREMIUM. 
 
 934 
 
 When nonpayment is fatal to recovery. 
 
 office on the last day of July, and speaking to 
 a clerk who was hehind a desk in the office, 
 inquired -whether the premium had been paid. 
 He took the policy, examined a large book, 
 and said it had not been paid. She asked 
 him if she could pay them, and he replied, 
 " Certainly you can." He made a memoran- 
 dum of the amount on the policy, and she 
 said that she would carry the money to the . 
 office on the following day, to which he re- 
 plied, " I will save you the trouble, I pass by 
 your house every day." He called at her 
 house, took the money, and delivered -to her 
 two i-eceipts, upon the face of which it was 
 expressed they should not -be valid unless 
 countersigned by H., who was the clerk 
 spoken to. He countersigned them before de- 
 livery, of all which the company's secre- 
 tary was subsequently informed; but it ap- 
 peared that H. had no authority to receive 
 premiums upon forfeited policies, and no 
 proof was given to show that he had author- 
 ity to sign the name of the secretary to re- 
 ceipts given by him. Held, the evidence was 
 not sufficient to entitle the plaintiff to recover. 
 Kolgen «. Ouardian Life Ing. Co., 2 Lans., 
 480; s. c, 58 Barb.. 185; 9 Abb. Pr. (N. 
 S.i,91. 
 
 10. The plaintiff neglected to pay one of 
 the assessments on his premium note. The 
 policy provided: "In case the insured shall 
 neglect to pay any assessment, the insurance 
 shall be void." ffeld, the parties may insert 
 what conditions they please in a policy, so 
 long as they are not contrary to public policy, 
 therefore the policy was void. Beadle v. Che- 
 lumgo County Mut. Int. Co., 3 Hill, 161. 
 
 11. Stipulated: "No insurance shall take 
 effect until the cash premium is actually paid 
 at the office of the company; and every agent 
 or other person forwarding applications or 
 receiving premiums is the agent of the appli- 
 cant and not of the company." The applica- 
 tion was made through B., who received the 
 policy, delivered it to plaintiff, and received 
 the premium ; but he did not offer to pay it 
 over to the company till after the loss oc- 
 curred. B. had an account with the company, 
 which he settled monthly. Insurers rendered 
 tlieir account at the end of the month as usual, 
 but did not include premium for this policy, 
 upon which a loss had occurred. He called 
 their attention to the omission, and tendered 
 the premium, but they refused it Held, not a 
 
 a completed contract. Mvlrey v. Shawmut 
 Mutual Fire Ins. Co., 4 Allen, 116. 
 
 12. Stipulated: "To be void on failure to 
 pay the premium on or before the several days 
 when the same shall become due, or shall fail 
 to pay when due, any notes or other obliga- 
 tions given for the premium." A promissory 
 note was given for a part of the premium due 
 April 15, 1867. It was unpaid when insured 
 died. May 23, 1867. Seld, insurers were dis- 
 charged. Pitt V. Berkshire Life Ina. Co., 100 
 Mass., 500. 
 
 1 3. A failure to pay the annual premium at . 
 the time when it becomes due, avoids the pol- 
 icy, and the statute of 1861, ch. 186, cannot be 
 invoked to aid insured, where the policy was 
 issued prior to the passage of the law. Shaw 
 V. BerkghireLifsIns. Co., 103 Mass., 254. 
 
 14. The person whose life was insured, 
 obtained "permission to navigate as a mari- 
 ner, or officer, between Boston, Philadelphia 
 and Baltimore, on the prior payment, any 
 year, of an additional premium of five dol- 
 lars." He paid the first additional premium, 
 the year terminating August 4, 1860. Held, 
 a failure to pay the additional premium for 
 the year beginning August 4, 1870, and being 
 employed in the summer and autumn of that 
 year as a steamboat engineer between Boston 
 and Hingham, avoided the policy. Ayre v. 
 JTeu) England Mutual Life Ins. Co., 109 Mass., 
 430. 
 
 15. The plaintiff employed a broker to 
 effect the insurance. He prepared the appli- 
 cation, delivered it to defend^ant's agent, and 
 received the policy, which stipulated: "No 
 insurance proposed is to be considered in 
 force until the premium Is actually paid." 
 The plaintiff said to the broker, it was not con- 
 venient to pay the premium, but if he was not 
 safe he would get the money. The bfoker 
 exhibited the policy and replied, it would be 
 safe for thirty days. Plaintiff asked him to 
 keep the policy. The property was burned 
 within that time, .ffrid, the broker's willing- 
 ness to give credit did not make the contract 
 binding; hence there was no contract. Mo/r- 
 land v. Royal Ins. Co., 71 Peiin. St, 393. 
 
 16. The consideration was a sum certain 
 paid upon the delivery of the policy, and a 1 ike 
 sum quarterly thereafter in each and every 
 year in advance. Stipulated: "And in case it 
 shall not be paid on or before the several days 
 specified, the policy shall be void." A pre- 
 
 467 
 
935 
 
 PAYMENT OF PREMIUM. 
 
 936 
 
 When nonpayment is fatal to recoTeiy. 
 
 mium became due September 8, 1865, which 
 ■was not tendered until October 1st, following. 
 The agent then refused to receive it, because 
 the person whose life was insured was then ill, 
 from which illness she never recovered. Held, 
 insurers were released, unless there was evi- 
 dence that they had waived prompt payment. 
 Catoir v. American Life Ins. and Trust Go., 33 
 N. J., 487. And evidence that the defendant's 
 general agent had consented to receive the 
 premium after it became due, and had prom- 
 ised to accept it and to deliver the receipt, was 
 not binding upon the company, because, by 
 the terms of the policy, it was expressly stated 
 that the agent had not authority to waive for. 
 feitures. Ibid. 
 
 1 7. The by-laws provided : " If the insured 
 shall neglect for the space of ten days, when 
 personally called upon, to pay any premium 
 or assessment, the policy shall be suspended 
 until the same is paid ; but if the insured shall 
 refuse to pay any assessment, the directors may 
 terminate the same by giving notice in writ- 
 ing, provided such termination shall not affect 
 the validity of the policy or note so far as re- 
 spects past dues." In the mf)nth of May, 
 1855, a stage driver saw insured and presented 
 a paper purporting to be an assessment made 
 by insurer against insured, and stated that he 
 had received it from the company's agent at 
 Augusta. Insured said he would have some 
 money in a few days, and would settle it The 
 bill was subsequently returned unpaid. A loss 
 occurred, and insurer collected the assessment 
 ffeld, insurer was not liable. JfasA v. Union 
 Mut. Ins. Co., 43 Me., 343. 
 
 18. In consideration of $160, to be paid by 
 insured within fifteen days from the date of 
 the policy, November 11, 1867, insurers agreed 
 to make good all such loss or damage to the 
 property described, for one year from that 
 date; stipnlat«d: "The company shall not be 
 held liable until the premium is actually 
 paid;" also: "If the premium is not paid 
 within fifteen days from its date, the policy 
 shall be null and void." A loss occurred 
 within fifteen days from its date, and the pre- 
 mium was tendered within that time. Seld, 
 the policy did not attach until payment of the 
 premium, and the company was not bound to 
 take it after the loss occurred. Bradley v. Po- 
 tomac Fire Ins. Co.. 82 Md., 108. 
 
 19. Insurers made an endowment policy 
 tipon the life of Charles at the age of twenty- 
 
 468 
 
 four, in favor of his wife, payable to her when 
 he should attain the age of forty years, or at 
 his death, should it occur sooner, for the con- 
 sideration of an annual premium of $279, pay- 
 able on or before February 21st in each and 
 every year. Two annual premiums were paid, 
 partly in cash, and partly by two notes. Short- 
 ly after the payment of the last premium the 
 policy was surrendered, and another for about 
 one-eighth the value of the former was made 
 and delivered, in the margin of which was 
 this condition: "This policy is conditional 
 on the interest on two notes, given in part pay. 
 ment for two premiums paid on No. 10,603, 
 being paid in advance." Held, the matter 
 stated in the margin was a part of the con- 
 tract, and a failure to pay the interest accord, 
 ing to the terms of the notes released insurers. 
 Patch V. PhtBnix Mutual Life Ins. Go., 44 Vt, 
 481. 
 
 20. Stipulated: " If the insured shall neglect 
 for the space of ten days to pay any assess- 
 ment demanded, the policy shall be suspended 
 till the assessment is paid." Held, if the loss 
 occurred after the expiration of ten days from 
 demand, and before payment of the assess- 
 ment, no recovery could be had. Blanchnrd 
 t. Atlantic Mutual Fire Ins. Go., 33 N. H., 9. 
 
 21. Application made for insurance, $4,200, 
 on goods from Natchez to Alexandria. In- 
 surers' president accepted the risk, made 
 the policy November 10, 1834, and laid it 
 aside for the applicant. Before the appli- 
 cant called for it or paid the premium, the 
 goods were totally lost. It was a rule of the 
 defendant not to consider an insurance effected 
 until payment of the premium or delivery of 
 the policy, and a copj' of this rule was kept 
 constantly displayed in the office. Held, not 
 a completed contract Flint v. Ohio Ins. Co., 
 8 Ohio, 501. 
 
 22. Stipulated: " The annual premium shall 
 be payable on the day named, and in case it 
 is not paid, the policy shall be null and void, 
 and wholly forfeited ; " also stipulated : " No 
 agent of the company, except the president or 
 secretary can waive any forfeiture or alter 
 this or any other condition of the policy." 
 Tlie agent stated that he was absent when the 
 premium became due, December 1st ; that the 
 insnred executed a premium note for $16, and 
 a cash note for $8, but no money was paid; 
 that the insured requested him, when he was 
 about to remit to the company, to call and get 
 
937 
 
 PAYMENT OF PREMIUM. 
 
 938 
 
 When nonps^ment is fatal to recovery. 
 
 the money, which the agent promised to do; 
 that he called for the money, but the insured 
 ■was verj' busy at that time, could not leave 
 what he was doing and a^iked agent to call 
 again when he was making his next remit- 
 tance ; that when he made his next remittance 
 he forgot to call. "While insured was in a 
 dying condition the agent informed some of 
 the friends of the insured of the facts in regard 
 to the last premium. It was then paid and 
 remitted, the agent delivering the receipt 
 antedated. Held, the policy was invalid at 
 the time of his death ; that the evidence in 
 the case did not show that the company were 
 estopped to make this defense. Union Mutual 
 Life Ins. Go. v. McMiUm, 24 Ohio Sl, 67. 
 
 23. Stipulated: " In case the premium shall 
 not be paid on or before the time herein men- 
 tioned for the payment of the same, the com- 
 pany shall not be liable for the payment of 
 the sum insured or any part thereof; and on 
 nonpayment ot any such premium, or note, or 
 security, or any part thereof when due, all 
 claims of the policy shall be forfeited to said 
 company, and the policy shall be void." A 
 premium note to mature August 33, 1855, was 
 received for a part of the premium, but the 
 note was not paid at maturity. There had 
 been neither demtmd tor payment, nor offer 
 to make payment, when insured died. Held, 
 the recital of the policy, that the premium 
 for the first year had been paid, was not con- 
 clusive, because the indorsement shows, that 
 notwithstanding the recital of a credit being 
 contemplated and given, the policy was to be 
 void in case the premium note should not be 
 paid. Bolert v. New England Life Ins. Go., 1 
 Disney, 355. 
 
 24. Term policy on schooner. Stipulated: 
 "And in case the notes or obligations given 
 for the premium therefor or any part thereof, 
 be not paid at maturity, the full amount of the 
 premium shall be considered as earned, and 
 this policy becomes void while said past due 
 notes or obligations, or any part thereof, 
 remain overdue and unpaid." Insured gave 
 an indorsed note for the premium, upon 
 which was a memorandom substantially like 
 the stipulation set out in the policy. The note 
 became due October 30th; she was lost No- 
 vember 12th, and on the 19tb, insurer's agent, 
 with notice of the loss, accepted payment of 
 the note, surrendered it and remitted the 
 money to insurers. Held, the policy was in- 
 
 effectual at the time the loss occurred; taking 
 the money did not make insurers liable for 
 the loss. WiUiams v. Albany Gity Ins. Go., 19 
 Mich., 451 ; WiUiams v. Sepuhlie Ins. Go., id., 
 469. 
 
 25. Stipulated : " If the said premiums shall 
 not be paid on or before the days mentioned 
 for the payment thereof, at the o£9ce of the 
 company in the city of New York, or to 
 agents when they produce receipts signed by 
 the president or secretary, then and in every 
 such case, the company shall not be liable for 
 the payment of the sum insured." Held, a 
 failure to pay the premiums without showing 
 any legal excuse was fatal to the plaintiS^s 
 case. WiUiams v. Washington Life Ins. Go., 31 
 Iowa, 541. 
 
 26. The policy stipulated that the premiums 
 should be paid April 10th, annually, and if 
 they were not then paid, the company should 
 not be liable for the insurance or any part 
 thereof, and the policy should cease and 
 determine. By the prospectus delivered 
 by the company's agents to insured it was 
 stated, "a party neglecting to pay his prem- 
 ium within thirty days after it becomes 
 due forfeits the interest he has in the policy." 
 The premium which became due April 10, 
 1847, was not paid at that time. Insured died 
 four days after; but within the thirty days 
 mentioned in the prospectus, the premium 
 was tendered to the company's agent. Held, 
 the prospeclus was inadmissible to extend the 
 terms and obligations of the contract, that the 
 policy was in force up to April 10, 1847, and 
 on that day it ceased and determined because 
 the premium then due was not paid, and in- 
 sured had no more right to call upon the com- 
 pany for the insurance, than he had to call 
 upon any other company or citizen for it (cit- 
 ing Tarleton «. Staniforth, 5 Term, 695). Mut- 
 ual Ben/^ Ins. Co. v. Ruse, 8 Oa., 534. 
 
 27. A premium, which became due April 
 25, 1870, was not paid at the time the in- 
 sured died, but the plaintiff offered evidence to 
 prove that prior to the execution and deliv- 
 ery of the policy one Laird, acting as the 
 agent of the company, told deceased that it 
 would make no difference if the premiums 
 were not paid regularly to the day, and evi- 
 dence was also given of the company's custom 
 to receive payment of premiums after the day 
 of payment had expired from living persons 
 insured. Held, the policy was void for non- 
 469 
 
939 
 
 PAYMENT OF PREMIUM. 
 
 940 
 
 When nonpayment is fatal to recovery. 
 
 payment of the premium ; that proof of a cus- 
 tom to allow persons who were living to pay 
 overdue premiums was not evidence of a 
 custom to receive premiums wlien the com- 
 pany had notice that the person insured was 
 dead. Sullivan «. Cottun States Life Ins. Co., 
 43 Ga., 423. 
 
 28. The agent took to his own order a note 
 of insured for the cash portion of tlie first 
 premium and delivered a receipt showing that 
 insured was entitled to a policy- for $5,000 if 
 the company accepted his application, but if 
 it should be rejected then the note was to be 
 returned and the receipt canceled. A policy 
 was issued and sent to the agent whenever de- 
 livered it. The note was not paid at matu- 
 rity; the second annual premium became 
 due, insured neglected to pay it, and died. 
 Held, it was unnecessary to determine what 
 the rights of the parties would have been had 
 insured died before the second premium be- 
 came due; but when it became due and was 
 unpaid the policy lapsed and no recovery 
 could be had on it. Security Life Ina. Co. v. 
 Gifber, 50 Ga., 404. 
 
 29. Stipulated: " If the note given for the 
 cash premium, or any premium, or any part 
 thereof, shall remain unpaid and pa^t due at 
 the time of such loss or damage, this policy 
 shall be void and of no effect." Insured gave 
 a premium note to insurer's agent, and insur- 
 ers gave him notice when the note would ma- 
 ture, and that he must pay his premium and 
 save his policy. The agent to whom he de- 
 livered the note was indebted to insured and 
 promised to pay the note for him, but failed to 
 do so. Held, he could not recover. Ferebee 
 V. North Garolina Home Ins. Co., 68 N. C, 11. 
 
 30. Stipulated: "Not binding till counter- 
 signed by its authorized agent or ofScer C, or 
 such subagent as may be designated by him, 
 and the advance premium paid." C. informed 
 insured under date April 13th, that the policy 
 had been received, and directed the premium 
 to be sent either by express or post office order 
 to him. Insured was taken sick May 11th, 
 and on that day a package of money, the pre- 
 mium, was directed to C. Insured died May 
 13th, C. received the money June 3d, and di- 
 rected the policy to be sent to insured. It was 
 countersigned June 17th and forwarded to the 
 late residence of insured, in complete ignor- 
 ance of his death. Held, the contract was not 
 consummated till the payment of the premium 
 
 470 
 
 May 11th; it was the duty of insured to com- 
 municate to the company any material change 
 taking place in his health, between the time 
 of making the application and the transmis- 
 sion of the premium ; hence plaintiff was not 
 entitled to recover. Whitley d. Peidmont and 
 Arlington Life Ins. Co., 71 N. C, 480. 
 
 31. A., local agent for the insurer, held a 
 policy on his own life. The annual premium 
 was payable March 5, 1871, thirty days of 
 grace being allowed within which the premi- 
 um might be paid, at the entire option of the 
 company. April 3, 1871, he inclosed the pre- 
 mium to the general agent, at which time he 
 was quite sick, and continued to grow worse 
 till the 7th, when he died. The package of 
 money was made up to be sent by express, A. 
 being also the agent of the express company. 
 It was accidentally delayed until the 10th, and 
 was received by the general agent on the same 
 day. Held, the insurers were discharged. 
 Donald v. Life Ins. Co., 4 So. Car., 321. 
 
 32. On steamboat. Stipulated: "In case 
 any note or obligation given for the premium 
 on this risk shall not be paid at maturity,such 
 failure of payment shall terminate this insur- 
 ance, and said note or obligation shall be con- 
 sidered the premium for the risk thus termi- 
 nated. The policy acknowledged the receipt 
 of Chas. Muhleman's note as the consideration, 
 payable at nine months, but the note delivered 
 was signed "steamer Potomac and owners, per 
 Chas. Muhleman." It was not paid at matur- 
 ity, and while it remained unpaid she was lost. 
 After the loss, the money was tendered to a 
 clerk of insurers, who received it under pro- 
 test. Held, the policy, by its terms, ceased to 
 be operative when the note became due and 
 unpaid ; that the receipt of the money by the 
 clerk did not cure the forfeiture ; hence insur- 
 ers were discharged. Muhleman v. National 
 Ins. Co., 6 W. Va., 508. 
 
 33. The premium was not paid, but the 
 practice was to give a credit of about thirty 
 days. Insured paid one-third of it, and insur- 
 er notified him that if the balance should not 
 be paid within twelve days, the policy would 
 be canceled. It was not paid within that 
 time, and the premises were burned eight or 
 ten days later. The policy gave insurer the 
 right, for any cause, to cancel the policy by 
 refunding the unexpired premium pro rata. 
 Held, the company had a right to rescind the 
 contract; that the money not being paid at the 
 
941 
 
 PAYMENT OP PREMIUM. 
 
 9i2 
 
 When nonpayment is fatal to recover j'. 
 
 time mentioned, no further act was necessaiy 
 to perfect the rescission. Bergson o. Builders 
 Jns. Co., 38 Cal., 541. 
 
 34. A poHcy issued October 31, 1867, stip- 
 ulated: "In consideration of $267.31 in hand 
 paid and of the sum of $267.31 to be paid on 
 or before the last days of February and June 
 next, and of all loans and interest made upon 
 this policy at any time, and of the annual 
 premium of $1,203.45, to be paid on or before 
 October 31st in every year during the contin- 
 uance of this policy, or within thirty days 
 after the several payments as above shall be 
 due and payable, or with the consent of the 
 company half or quarterly or thrice yearly 
 in advance with interest, one-third of which 
 may be indorsed as a loan, do insure the life 
 of B. C. H., etc., $5,000 to be paid within 
 ninety days after due notice and satisfactory 
 evidence of death, any balance of the year's 
 premium, when not all paid at the commence- 
 ment of the year, or any indebtedness to the 
 company on account of this policy being first 
 deducted." Insured, with the consent of the 
 company, elected to pay the premium thrice 
 yearly. He paid one premium, but failed to 
 pay that which became due the last of Febru- 
 ary, 1870; and on April 21st tendered it to the 
 company, who declined to receive it. He 
 di-ed May 6th. ffeld, a credit was not given 
 for the second and third installments; that 
 the clause which gave insurer the right to 
 deduct any indebtedness under the policy was 
 satisfied by the circumstance that one third of 
 each year's premium could be indorsed as a 
 loan, but insured was not released from paying 
 any installment when it became due by the 
 terms of the contract; the right to deduct any 
 installment not due at death could not be con- 
 strued to compel the insurer to pay the sum 
 insured with the right to deduct an install- 
 ment overdue when death occurred. Howard 
 «. Continental Life Ins. Co., 48 Cal., 229. 
 
 35. Policy for an annual premium of £33, 
 payable by quarterly installments of £8 5s. 
 each. Stipulated: "If the insured shall die 
 before the whole of the quarterly payment 
 shall become payable, it shall be lawful for 
 the insurer to deduct and retain from the sum 
 instu'ed so much as shall be guflicient to pay 
 and satisfy the whole of the premium for that 
 year, reckoning the year to commence from 
 August 2d." The third quarterly payment 
 became due and was unpaid at the time of the 
 
 death of the person insured. Held, it was a 
 policy from quarter to quarter, leaving the in- 
 sured at liberty to drop it at the end of any 
 quarter, hence there was no continuing liabil- 
 ity on the company, unless the quarterly pre- 
 mium was paid at the time it became due. 
 Sheridan ■e. Pkainix Life Ass. Co., El. Bl. & 
 El., 156;" 4 Jur. (N. 8.), 831; 27 L. J. Q. B., 
 327; 7 W. R., 106; reversed in Exchequer, 
 wherein it was held that the contract was an 
 aunual insurance, and not from quarter to 
 quarter: that the insurer had the right to de- 
 duct from the sum insured the quarterly pre- 
 miums not paid (s. c, El. Bl. & El., 159; 38 L. 
 J. Q. B., 94; 5 Jur. N. 8., 143). But this was 
 reversed, and the judgment of the Q. B. ,<if- 
 firmed. Phomix Life Ass. Co. v. Sheridan, 8 
 H. L. Gas., 745; s. c, 7 Jur. (N.. 8.), 174; 31 L. 
 J. Q. B., 91; 3 L. T. (N. 8.), 564; 3 El. & El., 
 763. 
 
 36. Against accidental death, premium pay- 
 able January 33d, in each year, for one year 
 ending January 33, 1852; to be extended. 
 " Provided the insured, on or before or within 
 twenty-one days after January 32, 1853, and on 
 or before or within twenty-one days after Jan- 
 uary S2d, in every succeeding year, so long as 
 the acting directors, for the said company, 
 shall accept the same, shall pay or cause to be 
 paid to the insurers the annual premium, etc., 
 the insurers will pay the sum insured within 
 three calendar months after death from acci- 
 dent or violence ; if the premium shall be un- 
 paid for twenty-one days next after it shall be- 
 come due, the policy shall be absolutely void, 
 and the insured shall forfeit all claim there- 
 under; and in every case when the premium 
 shall become due, the directors shall be at lib- 
 erty to terminate the risk by refusing to ac- 
 cept such premium." The premium due Jan- 
 uary 33, 1856, was not paid, and, on the 27th 
 following, an accident happened which caused 
 death February 1st. Held, there was no riglit 
 to keep the policy alive, by payment or ten- 
 der of the premium, within twenty-one days 
 after it became due, because, by the terms of 
 the contract, the directors could refuse to re- 
 ceive it, and terminate the risk at the end of 
 the year; but if that were otherwise, a failure 
 to tender it (there was none) within twenty- 
 one days settled the question. Simpson s. Ac- 
 cidental Death Ins. Co., 3 C. B. (N. S.), 257; 
 s. c, 3 Jur. (N. S.), 1079; 26 L. J. C. P., 389. 
 
 37. Stipulated: "To be void if the pre- 
 
 471 
 
943 
 
 -PAYMENT OF PREMIUM, 
 
 9M 
 
 When nonpayment is fatal to recovery. 
 
 iniums shall not be paid within thirty days 
 after they shall respectively become due, but 
 the policy may be revived within three cal- 
 endar months, on satisfactory proof of the 
 health of the life insured, and payment of a 
 certain fine." Premium became due October 
 13, 1855. The person insured died November 
 12th following. The plaintiff, for whose ben- 
 efit the policy was effected, tendered the pre- 
 mium on the 14th, which was received, and 
 for which a receipt was given, both parties 
 being ignorant of the death. Held, the re- 
 ceipt of the premium did not revive the pol- 
 icy; that payment of it within thirty days 
 after it became due, but after the death of the 
 person insured, was not a compliance with the 
 condition. Pritchard e. Merchants and Tra- 
 ders Mutual Life Ins. Co., 3 C. B. (N. S.), 633; 
 s. c, 4 Jur. (N. 8.), 307; 27 L. J. C. P., 169. 
 
 38. "From November 11, 1803, to Decem- 
 ber 35, 1803, premium to be paid yearly, on 
 December 25th, and to continue so long as in- 
 sured shall pay, and directors shall accept the 
 premium, to be paid within fifteen days after 
 the day limited, upon pain of forfeiture. No 
 i surance to take effect till payment of pre- 
 mium." By advertisement, made part of the 
 policy by agreement, insurers engaged that all 
 persons insured for one year or more should 
 be considered insured for fifteen days beyond 
 the date their policies would expire. A loss 
 happened within fifteen days after December 
 25, 1803, at which time the premium had not 
 been paid, but it was tendered immediately 
 and refused. Held, no contract existing at the 
 time of the loss ; insurers had the right to ac- 
 cept or refuse it. Sahin v. James, 6 East, 571 ; 
 TarUton v. Staniforth, 5 Term, 695 ; 1 B. & P., 
 470; affirmed in Exch., 3 Anst., 707. 
 
 39. Stipulated: "That if any member shall 
 neglect to pay the quarterly premiums for 
 fifteen days after they are due, it shall be de- 
 clared void, unless the member, continuing in 
 as good health as when the policy expired, 
 shall pay the arrears within six months, and 
 five shillings per month extra." The life in- 
 sured expired when a quarterly payment was 
 overdue ; but his executor tendered the sum 
 within fifteen days after it was due. Held, 
 the terms of the policy required the payments 
 to be made during the lifetime of the person 
 insured, and while in as good health as he was 
 when the policy expired. Wavi o. Blunt, 12 
 East, 183. 
 
 472 
 
 40. Tlie policy was effected through the 
 company's agent at Hull; the premium, 
 payable March 15, 1833, was not in fact 
 paid till the 12th day of April, following, 
 to the agent, who gave the usual receipt 
 for one year from March 15, 1833. At the 
 foot of the receipt was the following: "If 
 this receipt be not taken up within fif- 
 teen days from the day the premium be- 
 comes due, it must be returned to the office, 
 as after that period, the insurance being can- 
 celed, the several receipts will be of no avail. 
 (See conditions of insurance in the printed 
 proposals of the company.)" The agent was 
 required to give immediate notice to the office 
 of all premiums not paid within fifteen 
 days after due, and omitting so to do, they 
 were to be treated by the company as paid, and 
 he was to be debited with them, and held re- 
 sponsible for them. Notice was not given by the 
 agent of the failure to pay this premium, and 
 the company debited it to the agent. Held, 
 the agent had no authority to make a new 
 contract varying the time of payment; that 
 the receipt given was not proof against the 
 company that a new contract had been made 
 on the terms of the old ; that debiting the 
 agent with the amount of the premium did 
 not make the company liable upon the policy, 
 for that was a matter between the agent and 
 the company; that there was but one ground 
 upon which the company could be held liable, 
 namely, a new contract, which the evidence 
 failed to establish. Acey v. Fernie, 7 Mee. & 
 W., 151. 
 
 41. The company had notice that a life pol- 
 icy had lapsed for nonpayment of the last pre- 
 mium, but forgetting that fact, paid the 
 money to representatives of the insured. Held, 
 the company was entitled to recover the 
 money back, for if a party makes a payment 
 on the supposition that a fact is true which 
 afterwards proves to be untrue, he may 
 recover it back. KeUy «. Solari, 11 L. J. Ex., 
 10. 
 
 42. A loan was granted by an insurance 
 company, on bond with sureties, and a policy 
 effected as collateral security. The premi- 
 ums we're not paid at the time they became 
 due ; they were demanded, and actions brought 
 against the sureties of the bond, who refused 
 to pay them. Held, upon a bill filed to restrain 
 the actions at law, nothing appeared in the 
 case to show that any recovery could be had 
 
945 
 
 PEIilLS OF THE SEAS — PILOTAGE. 
 
 946 
 
 When failure to take, is a defense. 
 
 upon the policy, and therefore the bill was dis- 
 missed. Edge v. Duke, 18 L. J. Ch., 183. 
 
 YI. "What is a defense to. 
 
 F. became insurer upon three ships. After 
 one had arrived he became bankrupt, and in- 
 sured procured a second insurance upon the 
 others. Held, the assignee of F. could not re- 
 cover premiums on the risks not determined 
 when he became a bankrupt. Elliott v. An- 
 derson, Faculty Dec. 1781 to 1787, p. 342. 
 
 PERILS OF THE SEAS. 
 (See PouoT.) 
 
 PEEISHABLE ARTICLES. 
 
 (See WiiBBAirrED Fbsx from AviBAaE,') 
 
 PHYSICIAN. 
 
 (See Hesicai. Attensaxi.) 
 
 PILOTAGE. 
 
 (See Seawobthinzss.) 
 
 I. WhEK PAILtrRE TO TAKE, IS A DEFENSE. 
 II. NOT A DEFENSE. 
 
 III. Pilot's neglect is ho defense. 
 
 I. "When failuee to take, is a defense. 
 
 1. She ran on the bar off Charleston. The 
 provisions on board were nearly expended, 
 and the master feared she might be driven out 
 to sea again if an attempt were not made to 
 
 enter the harbor immediately. Therefore he 
 
 ventured in without waiting for a pilot to 
 come to him. Held, the master was not justi- 
 fied in making the harbor without a pilot. 
 De Pau V. Jones, 1 Brev., 437. 
 
 2. If a vessel sustain injury in consequence' 
 of a failure to take a pilot when one ought to 
 have been taken, the loss is not by a peril of 
 the sea. M'MUlan v. Union Ins. Co., Rice, 248. 
 But if she is lost, and it cannot be attributed 
 to the want of a pilot, then it is a loss by perils 
 of the sea, though she had no pilot at the time. 
 The absence of a pilot where it is customary 
 to take one, does not make the vessel unsea- 
 worthy. Ibid. 
 
 3. On steamboat from New Orleans through 
 the mouth of the Mississippi to Mobile and 
 return. Held, in every well appointed port 
 where pilots are to be had, a vessel arriving 
 upon pilotage ground is bound to take one ; 
 that duty is imperative when approaching a 
 river of difficult access, where the navigation 
 rnquires not only nautical skill, but local 
 knowledge and constant practice ; having on 
 board a skillful and experienced master did 
 not satisfy the requirements of the law, there- 
 fore the insurers were released. Whitney v. 
 Ocean Ins. Co., 14 La. (O. S.), 485. 
 
 4. On cargo, New Orleans to Brazos. She 
 was wrecked in crossing the bar at the mouth 
 of the river. The master did not employ a 
 pilot in crossing the bar. Held, although 
 there is no implied warranty of seaworthiness 
 except at the commencement of the voyage, it 
 is still the duty of insured to keep iiis vessel 
 seaworthy during the voyage, if it be in his 
 power to do so ; and if from neglect of the 
 owner or his agents the vessel becomes un- 
 seaworthy by damage or loss in her hull or 
 equipments during the voyage, the owner 
 must repair or supply the loss, if it is in his 
 power to do so; if it is customary for vessels 
 to take a pilot at any particular place, and the 
 master fails to take one when it was in his 
 power to do so, that failure must be consid- 
 ered as producing a positive and definite in- 
 crease of risk. McDowell «. General Mut. Ins. 
 Co., 7 La. An., 684. 
 
 5. On ship at and from Riga to London- 
 derry. She was driven by stress of weather 
 to Scalpa in the Hebrides, which was a pilot's 
 fare way and a place of difficult navigation. 
 There were two entrances to the anchorage, 
 the west and north passage. The former the 
 most difficult, owing to sunken rocks. There 
 
 473 
 
947 
 
 PILOTAGE — PIRATES. 
 
 948 
 
 When failure to take is not defense — Pilot's neglect is no defense. 
 
 were no licensed or branch pilots nearer than 
 Stornoway, twenty-five miles distant; but 
 there were two lighthouse keepers and many 
 fishermen acquainted with the navigation. It 
 was the custom for masters not acquainted 
 witli the passage to take one of these men. 
 The master took one of tlie lighthouse keep- 
 ers, who brought her safe to anchor at one 
 o'clock, within three hours of full tide, and 
 gave the master su£Scicnt information to go 
 out without assistance. She lay there till next 
 morning, when the master attempted to go 
 out by the west passage. She commenced to 
 weigh anchor, but dragged and struck a 
 sunken rock near the common roadstead, 
 slipped off wheu the tide fell, and went to the 
 bottom. Held, the failure of the master to 
 procure the aid of persons familiar with the 
 navigation to pilot her out was a breach of 
 duty which discharged the insurers. Thomaoa 
 V. Buset, 4 C. C. S., 670. 
 
 6. The vessel was lost while she ought, but 
 did not, have a pilot on board. Hdd, insured 
 was bound to have a person on board qualified 
 to navigate her; and for a failure to do so, the 
 insurers were discharged. Lam «. HolUngs- 
 toorth, 7 Term, 160. 
 
 II. When failure to take, is no de- 
 fense. 
 
 1. On Schooner engaged in the coasting 
 trade. She was wrecked on the Maryland 
 side of the Potomac while steering for a port 
 in Virginia The statute of Maryland pro- 
 hibited persons from acting as pilots if they 
 were not licensed by the proper authorities. 
 Her mate was acting as pilot. He had no 
 license, but was a person well qualified for the 
 duties. It was customary for masters and 
 mates of vessels of her size, engaged in the 
 same trade, to act as pilots. Seld, no defense 
 to the action. KeeUr v. ViremaiCt Ins. Co., 3 
 Hill, 250. 
 
 2. A public law of the state of Pennsyl- 
 vania provided that vessels of more than sev- 
 enty-five tons burden should take a pilot to 
 the capes of the Delaware, or forfeit and pay 
 to the warden a sum equal to half pilotage. 
 Held, it was not obligatory on owner or master 
 to employ a pilot, and that she was seaworthy 
 without one. Flanigen «. Washington, Ins. 
 Co., 7 Penn. St., 306. 
 
 474 
 
 3. The insurers defended on the ground 
 that the vessel had not been provided with a 
 branch pilot Insured gave evidence to prove 
 that by general custom they were exempted 
 from providing any. Held, a question for the 
 jury. Cox v. Charleston Ins. Co., 3 Rich., 331. 
 
 4. On steamship to run from New Orleans 
 to the Rio Grande, and there to navigate be- 
 tween Bagdad and Camargo. She was in 
 charge of a pilot of established reputation 
 and entire competency, but not licensed ; one 
 of the class to whom it was custmary to en- 
 trust vessels crossing the bar at Rio Grande. 
 Held, insured was entitled to recover. Do- 
 mingo V. Merchants Mut. Ins. Co., 19 La. An., 
 479. 
 
 5. She arrived off the river Sierra Leone 
 and signaled a pilot, but, getting none, about 
 10 o'clock at night attempted to enter, took 
 the ground and was lost. Held, the master's 
 error was no defense to the action if he was 
 of competent skill. Phillips v. Headlam, 3 B. 
 & Ad., 380. 
 
 6. I'rom Aberdeen to Memel. She arrived 
 at Memel, took in cargo and waited for her 
 clearance. The British vice consul advised 
 the master to make his way out without wait- 
 ing for the clearance, because the place was 
 threatened with an embargo. The master 
 slipped her cables and ran out without taking 
 a pilot, but she struck the bar and was lost. 
 Vessels which remained were put under an 
 embargo soon after she sailed. Held, the act 
 of the master being bona fide to avoid threat- 
 ened danger, the insurers must respond for the 
 loss. Pillans v. Dalgemo, Faculty Dec, 1808 
 to 1810, p. 1. 
 
 III. Pilot's neglect is no defense. 
 
 Tinder 37 Geo. Ill, ch. 78, vessels were re- 
 quired to take a pilot up the river to Liverpool ; 
 she was stranded in consequence of the pilot's 
 neglect. Held, the insurers were liable. Car- 
 ruthers v. Sydebotham, 4 Mau. & Sel., 77. 
 
 PIRATES. 
 
 (See CApnrBE aitd Sxizitbx.) 
 
949 
 
 PLEADING. 
 
 950 
 
 What is sufficient. 
 
 PLEADING. 
 
 I. "What is sirPFiciBasT. 
 
 (a) Of dedaratioti, eomplaint, bill or 
 
 petition. 
 
 (b) Of pleas, answers or replications. 
 
 II. WHA.T IS NOT SUFFICIENT. 
 
 (a) Cy declaration, cotnplaint, bill or 
 
 petition. 
 
 (b) Of pkag, answers or replications. 
 
 III. What stdst be specially pleaded. 
 
 IV. NEED NOT BE SPECIALLY PLEADED. 
 V. THE PLEADINGS ADMIT. 
 
 VI. ., DO NOT ADMIT, 
 
 VII. Of pkescmptions. 
 
 VIII. SHEPLUSAGE. 
 
 IZ. Generally. 
 
 I. "What is sttfficient. 
 
 (a) Of declaration, coin^laint, hill or 
 petition. 
 
 1. Time policy on sliip. Tlie declaration 
 averred that the plaintifis were interested at 
 the time of the loss, to the amount of the in- 
 surance, and the defendant demurred specially, 
 because it did not appear that the plaintiffs, 
 ■were interested in her at the time the policy 
 was made, nor when the risk commenced. 
 Held, the declaration was good. SengJiaw v. 
 Mutual Safety Ins. Co., 2 Blatch., 99. And in 
 other counts it was averred that the policy was 
 made for the use and benefit of the plaintiffs 
 as trustees for a certain railroad company, and 
 that as such trustees they were interested at 
 the time of the loss. Held, sufficient, for they 
 were not bound to set forth the extent and na- 
 ture of their trust Ibid. 
 
 2. The plaintiff need not aver that the loss 
 did not happen from invasion, etc., for these 
 are provisos for the benefit of the insurer, and 
 he must allege and prove them in defense to 
 the action. So too the plaintiff need not aver 
 that the magistrate was the magistrate nearest 
 the loss. Lounsbury v. Protection Ins. Co., 8 
 Conn., 459; Cvrnell v. Le Bny,9Wend., 163; 
 Catlin V. Springfield Fire and Marine Ins. Co., 
 1 Sumn., 434. 
 
 3. The policy prohibited the use of certain 
 things in the premises insured. Meld, the 
 plaintiff need not negative a breach of the pro- 
 hibitory conditions ; the breach being matter 
 
 of defense, must be stated in the defendant's 
 answer. Hunt v. Hudson River Ins. Co., 3 
 Duer, 481. 
 
 4. The plaintiff did not set out the condi- 
 tions of insurance. Held, no variance, because 
 they were conditions sebsequent. Though a 
 breach of them would operate as a bar to 
 plaintiff's recovery, their performance does not 
 constitute a part of his cause of action. 
 Forbes «. American Mutual Life Ins. Co., 15 
 Gray, 249. 
 
 5. The bill prayed that the policy be deliv- 
 ered up to be canceled ; also that a commis- 
 sion might issue for the examination of wit- 
 nesses. Held, the prayer for a commission to 
 take testimony did not make it multifarious. 
 Commercial Mut. Ins. Co. v. McLoon, 14 Allen, 
 351. 
 
 «. The plaintiff did not aver that the loss 
 ,did not happen from invasion, etc. Held, it 
 was not necessary to do so, because that was 
 matter for the defendant to aver and prove. 
 Loun^mry v. Protection Ins, Co., 8 Conn., 459. 
 
 7. The declaration averred the interest in 
 the property insured, its loss by fire, and that 
 the defendants had due notice thereof, accord- 
 ing to the conditions of the policy. The 
 plaintiffs in error sought to reverse the judg- 
 ment, on the ground that it was not alleged 
 that they had due notice and proof of the loss, 
 according to the requirements of the statute. 
 H^d, no ground of error. Conway Fire Ins. 
 Co. V. SewaU, 54 Me., 352. 
 
 8. Plaintiff declared upon a certificate of 
 insurance, signed by insurer's secretory and 
 countersigned by the agent who accepted the 
 risk, which stipulated, that the plaintiffs were 
 " insured, according to the tenor and condi- 
 tions of insurer's printed policies, to be bind- 
 ing until a regular policy shall be issued from 
 the principal office," etc. The conditions of 
 a regular policy were not set out in plaintiffs 
 petition, nor were there any averments in it 
 sliowing an observance of the terms and con- 
 ditions of a regular policy. Held, the court 
 would examine the whole record, to determine 
 whether it was sufficient to support the judg- 
 ment; that as the defendants had, for the pur- 
 pose of proving nonobservance, set out the 
 conditions of a regular policy, the record was 
 good. Dayton Ins. Co. v. EeUy, 24 Ohio St., 
 345. 
 
 9. Insured stated in their complaint that 
 the defendant insured the plaintiff to the 
 
 475 
 
951 
 
 PLEADING. 
 
 952 
 
 What is fcufficient. 
 
 amount of $3,000, on 10,000 bushels of oats. 
 Hdd, an averment of interest Rising Sun 
 Ins. Co. v. Slaughter, 20 Ind., 520. 
 
 10. The declaration of the wife made to 
 procure the policy was not set forth in the 
 complaint. Hdd, the complaint was good 
 without it, because it was not the foundation 
 of the action ; 'though it be considered a part 
 of the contract, it was not such a part as in- 
 sured was bound to set out in her complaint. 
 Mutual Benefit Life Ins. Co. v. Cannon, 48 Ind., 
 264. 
 
 11. The plaintiff alleged that he had duly 
 fulfilled all the conditions of said policy on 
 his part. Held, sufficient for it was all the 
 practice act requires. 2 Wag. St, 1020, sec. 
 42. Richardson v. Worth Missouri Ins. Co., 57 
 Mo., 413. 
 
 1 2. The plaintiff need not aver a waiver of 
 notice of loss; proof of it may be made with- 
 out any special averment (citing Russell «. 
 State Ins. Co., 55 Mo., 585). Schultz a. Mer- 
 chants Ins. Co., 57 Mo., 331. 
 
 13. The defendant is not entitled, at com- 
 mon law, to have oyer of an instrument not 
 under seal. • Commercial Ins. Co. v. Mehlman, 
 48 III., 313. But the statute requires the 
 plaintiff in all actions founded upon written 
 agreements, to file with his declarations a 
 copy of the agreement — [Ed. 
 
 14. The conditions of the policy were not 
 set forth in haee verbcB, but their legal effect 
 was stated, and it was averred that immediate- 
 ly, and within a reasonable time after the loss, 
 the insured forwarded to the secretary of the 
 insurer a statement, verified by affidavit, of 
 the time and origin of said fire. Held, suffi- 
 cient ; that it is not necessary for the insured 
 to set forth clauses or conditions which do not 
 affect his right of action ; hence it was not 
 necessary to aver that other insurance was not 
 made upon the property, for the plaintiff is 
 not obliged to anticipate and negative every 
 possible exception, answer or objection the 
 insurer may oppose to the claim. Trog Fire 
 Ins. Co. ■D. Carpenter, 4 Wis., 20. 
 
 1 5. The complaint did not allege that in- 
 surer's charter authorized insurance against 
 loss by fire, nor did it allege that insured was 
 owner of all the goods lost. The allegation in 
 this respect was that " insured made applica- 
 tion for insurance on plaintiff's stock of sad- 
 dlery, harness, saddlery-hardware, whips and 
 
 a great variety of other goods, such as are 
 476 
 
 usually kept for sale in a wliolesale and retail 
 country saddle and harness manufactoiy." 
 Held, it was unnecessary to allege that insur- 
 er's charter au'lu r'.zed in&urance agamst loss 
 by fire specifically, for the complaint alleged 
 authority to make insurance upon goods and 
 chattels, and that must include all kinds of 
 insurance. Western Massachusetts Ins. Co. v. 
 Duffey, 2 Kan., 347. 
 
 ] 6. Exhibits annexed to a bill cannot be 
 examined for the purpose of determining 
 whether a demurrer should be sustained or 
 overruled. It is sufficient if the bill itself 
 discloses a prima facie right, notwithstanding 
 it fails to state that all the conditions and stip- 
 ulations of the contract upon which it was 
 founded have been observed and performed. 
 Statham v. New York Life Ins. Co., 45 Miss., 
 581. 
 
 1 7. The complaint averred that the proper- 
 ty was the plaintiff's, and that he liad an interest 
 in it as the owner thereof; it was also averred 
 that the plaintiff duly fulfilled all the condi- 
 tions of said insurances respectively on his 
 part. Held, the complaint was good. Ferrer 
 V. Home Uut. Ins. Co., 47 Cal., 416. 
 
 18. It is not necessary to aver that the com- 
 pany has complied with the statute authoriz- 
 ing it to do business in the state. Germania 
 Ins. Co. V. Curran, 8 Kan., 9. 
 
 19. The policy excepted loss caused by fire 
 which should ensue from the falling of a 
 building, and it was averred in the complaint 
 that the loss was caused by fire and not by the 
 falling of any building. Held, the averment 
 was sufficient Ferrer v. Home Mut. Ins. Co., 
 47 Cal., 416. 
 
 20. On goods. The plaintiff declared that 
 the defendant became an insurer of the prem- 
 ises in the policy mentioned. Held, sufficient 
 Haughton v. Ewbank, 4 Camp., 88. 
 
 21. The declaration averred that divers 
 goods were put on board, and that the policy 
 was made on said goods. Held, good on 
 special demurrer. De Symons v. Johnston, 5 
 B. & P., 77. 
 
 22. Commissioners, appointed to take pos- 
 session of ships and other effects detained or 
 brought into the porta of Great Britain, insured 
 in their own names and averred the interest 
 in themselves in one count, but in another there 
 was no averment of interest in any one. Held, 
 upon demurrer the counts were good. CratJ- 
 furd V. Hunter, 8 Term, 13. 
 
953 
 
 PLEADING. 
 
 954 
 
 What is sufficient. 
 
 23. In declaring for a loss on a foreign ship 
 there was no averment for whose use or bene- 
 fit Uie policy was made, nor that the plaintiflF 
 had any interest, property or concern in the 
 ship. fleW, the declaration was good. Nantes 
 ». rA«n!jMon,2 East, :^85. 
 
 24. Stipulated : " Payment of claims shall 
 he made out of the capital stock and funds of 
 the company." Seld, it was not necessary for 
 insured to aver that the capital stock and 
 funds were suflScient to satisfy the claim, for, 
 if the want of funds would be any defense, it 
 should have been specially set up by the in- 
 surers because they only could know tlie state 
 of their funds. Sundei-land^ Marine Ins. Co. 
 V. Kearney, 16 Q. B., 925; 15* Jur., 1006; 20 L. 
 J. Q. B., 417. 
 
 25. Policy to insure debts. It was alleged 
 in the declaration that the plaintiffs had done 
 all tJiings necessary on their part to be per- 
 formed, but that the defendant had reflised to 
 pay. Heid, sufBcient. And the defendants 
 pleaded nonpayment of a premium, and that 
 the policy was canceled and declared void in 
 consequence of said nonpayment Held, a 
 good plea. Bamberger ». Commercial Credit 
 Mut.Asg. Co., 15 C. B., 676; 1 Jur. (N. S.), 
 500. 
 
 26. The declaration set forth the making of 
 the policy and then averred that the premises 
 were con.'sumed by fire July 27, 1847, and that 
 the plaintiff had thereby sustained damage to 
 the amount of £250 ; that the necessary notices 
 and proofs of loss were made, and assigned 
 the breach in the usual form, to which there 
 was a general demurrer. Held, the plaintiff 
 was not bound to aver that the propertj- was 
 his, for there was no warranty in the policy 
 to that effect, hence the demurrer must be 
 overruled. Oilbert v. National Ins. Co., 13 Ir. 
 L.K., 143. 
 
 27. It was averred under a videlicet, that tlie 
 fire happened July 29th, and that notice was 
 given the same day ; that the particular account 
 was made August 20th, and that the declara- 
 tion of the loss under oath was made March 
 27th. Held, no objection could be taken to 
 the declaration, for the plaintiff was not 
 bound by the dates mentioned, and therefore 
 not compelled to make his proof conform to 
 them, and whether the matters alleged were 
 done in proper time was a question of proof. 
 Ketehum c. Profcrtion /««. <7o., 1 Allen (N. B.), 
 136. 
 
 28. Stipulated: "If insured shall make 
 any other insurance, and shall not with all 
 reasonable c"'ligence give notice thereof to in- 
 surer, and have the same indorsed on the 
 policy or otlierwise acknowledged in writing, 
 tlie policy shall cease." The plaintiff averred 
 subsequent insurance and notice thereof to 
 insurer, and that insurer neglected and refused 
 to indorse the same on the policy. Held, it 
 was unnecessary for the pleader to aver a re- 
 quest to indorse. It was sufficient if the pol- 
 icy was tendered for that purpose. Demill v. 
 Hartford Fire Ins. Co., 4 Allen (N. B.), 341. 
 
 29. Stipulated that the insurers might at 
 their option replace or rebuild the property 
 insured. Held, it was unnecessary to negative 
 in the declaration insurer's failure to rebuild, 
 for it was a condition subsequent, matter of 
 defense, and was upon the insurer to allege 
 and prove, ^tna Ins. Co. v. Phelps, 27 111., 
 71. 
 
 (b) Of pleas, answers or repUeattons. 
 
 3 0. Action for an assessment upon a deposit 
 note. The defendant denied "that any such 
 assessment had been made as is set forth in 
 the plaintiff's declaration." Held, sufficient to 
 authorize defendant, at the trial, to deny the 
 validity of the assessment. People's Equitable 
 Mutual Fire Ins. Co. v. Arthur, 7 Gray, 267. 
 
 31. The plaintiff in his declaration alleged 
 a waiver of the condition, which required 
 action to be brought within a certain time. 
 Had, sufficient for the defendant to deny in 
 clear and distinct terms that any such waiver 
 had been made. Vogel v. People's Mutual 
 Fire Ins. Co., 9 Gray, 23. 
 
 32. The pleas alleged a condition and non- 
 compliance, using the language of the condi- 
 tion. Hel-d, sufficient; for where a question 
 of law is not involved, it is enough if the 
 breach be assigned in the words of the con- 
 tract or condition (citing 1 Chilty PI., 832). 
 Deuie-es ®. Manhattan Ins. Co., 34 N. J., 244. 
 
 33. The defendant was under terms to 
 plead issuably. He pleaded a setoff for a 
 total loss upon a policy of insurance on 
 freight. The plaintiff signed judgment on 
 the ground that the plea was not issuable. 
 The court set the judgment aside without 
 costs. Thomson v. Redman, 13 L. J. Ex., 
 
 310. 
 
 477 
 
955 
 
 PLEADINa. 
 
 956 
 
 What is not sufficient. 
 
 34. Two insurers filed a bill for discovery; 
 the policy of one was under seal, but the 
 other was not. Held, it was not multifarious 
 on that ground. Millt v. Campbell, 2 Tou. & 
 Coll., 389. 
 
 35. The bill charged fraud in effecting the 
 policy by means of misrepresentations as to 
 the health of the assured ; also that the party for 
 whose benefit the insurance was made had no 
 interest, and prayed for discovery and an in- 
 junction, but there was no oflTer to repay the 
 premiums. The defendants omitted to answer 
 the charge as to want of interest, and an ex- 
 ception was taken to the answer on that 
 ground. Held, the exception should be over- 
 ruled. Desiorough x. Curlewii, 3 Tou. & Coll., 
 175. 
 
 36. The sixth plea alleged that the property 
 was incumbered by mortgage, and that the 
 plaintiff did not make a true statement of his 
 title to the land. The plaintiff replied that 
 the title to the land was not incumbered. 
 Held, a good replication; it was suflBcient to 
 traverse the incumbrance. Williamson v. Ni- 
 agara District Ins Co., 14 U. C, C. P., 15. 
 
 37. Policy on steamer against loss by Are. 
 Plea, insured warranted that the total amount 
 of insurance should not exceed £6,000, three- 
 fourths of her value; that the insurancu on 
 lier exceeded that sum. Replication : the war- 
 ranty referred to total insurance against fire, 
 and that it did not exceed the amount men- 
 tioned in the warranty. Heid, the replication 
 was good ; that the defendant might have re- 
 joined, reaffirming the condition to be as they 
 had alleged, and denying that it was such as 
 the plaintiff asserted. Noad d. Protincial Ins. 
 Co., 18 U. C. Q. B., 584. 
 
 38. Hea: the plaintiff was required to de- 
 liver an account of the loss in writing, veri- 
 fied by his oath; also, his books of accounts, 
 and to permit extracts to be made from his 
 books. Held, not double, for the allegation? 
 are all to be taken together as sustaining one 
 ground of defense. The plea traversed the 
 delivery of the particular account, and set up 
 fraud. Held, a plea of fraud only, for denying 
 the delivery of the particular account did not 
 support the charge of fraud. The plaintiff 
 averred a general performance of all matters 
 and things on his part to be performed. The 
 action was covenant. Plea, traversing the per- 
 formance of all the acts. Hdd, good, for there 
 is no plea of the general issue in the action of 
 
 478 
 
 covenant. Ketchum e. Protection Ins. Co., 1 
 Allen (N. B.), 186. 
 
 II. What is not siifficient. 
 
 (a) Of declaration, eomplami, hill or 
 jpetition. 
 
 1. Policy made in New Jersey, payable 
 there. Held, the insured could not recover 
 unless he averred and proved an insurable 
 interest in the life insured. Muse v. Mutual 
 Benefit Life Ins. Co., 23 N. Y., 516; a. c, 26 
 Barb., 556; 24 N. Y., 633; see s. c, 8 Qa., 534. 
 
 2. The complaint contained no averment of 
 interest, either iu the plaintiff or his assignor, 
 in the subject matter insured. £e2(2, bad on 
 general demurrer. F'owler «. 2few Torklndem^ 
 nits I^- Co., 26 N. T., 422 ; 8. c, 23 Barb., 143. 
 
 3. Policy for account of whom it may con- 
 cern, loss, if any, payable to the plaintiffs. 
 The action was brought in the name of the 
 plaintiffs, and the complaint averred, that 
 8. was, at the time of the making of the policy, 
 and at the time of the loss, the person for 
 whom the insurance was effected and whom it 
 concerned, and that S. was interested in said 
 property to an amount exceeding alt insurance 
 thereon. Hdd, the complaint was insuffi- 
 cient, because it did not aver that the plaintiffs 
 were interested in the subject insured, or that 
 the policy was made to them as trustees or 
 agents. Freemaii v. Fulton Fire Ins. Co., 38 
 Barb., 247; s. c, 14 Abb. Pr., 398. 
 
 4. Action on a policy t)n goods contained 
 in certain premises described. The com- 
 plaint set out the contract and averred a loss 
 " by reason of a fire taking place in the cellar 
 of said premises." Held, insufficient because 
 it failed to state that the goods insured were 
 injured or destroyed by fire. Rodi v. Rutgers 
 Firelns. Co., 6 Bos., 23. 
 
 5. Policy to A. " for account of whom it 
 may concern, loss if any payable to him. 
 Valued policy to be proof of interest:" Pol- 
 icy set out in Jubc verba, willi im averment that 
 he has performed all the conditions and agree- 
 ments on his part to be perfWrmed : but there 
 was no averment that the plaintiff was inter- 
 ested in the subject matter. Held, unless the 
 policy upon its face imported that the insured 
 was intei'ested in the subject insured, there 
 must be an averment of interest, and in the 
 absence of it, upon demurrer, the complaint 
 
957 
 
 PLEADING. 
 
 968 
 
 What is not 8u£Bdent. 
 
 must be held insufficient. Williams v. Insur- 
 ance Company of North America, How. Pr., 
 865. 
 
 6. The defendant, for a good consideration, 
 promised to pay snch assessments as should 
 he thereafter made against the policy. Seld, 
 a general count was sufficient, because where 
 one party has fulfilled his part of the contract, 
 and the other party becomes obliged to pay 
 money, a general count is sufficient (citing 
 Hale V. Handy, 26 id., 206; Mitchell v. 
 Gile, 12 N. H., 390). New Hampshire Mutttal 
 Fire Ins. Co. v. Hxint, 30 N. H., 219. 
 
 7. The promise was averred: "To pay in 
 such proportions, and at such times, as the 
 directors, agreeably to the act of incorporation 
 and by-laws of the company, may require." 
 The breach assigned was the nonpayment of 
 an .sssessment, but there was no averment that 
 the assessment had been ordered agreeably to 
 the act and by-laws, nor was the time at 
 which it had been ordered averred. Held, 
 bad on demurrer (citing 1 Chitty PI., 326,328; 
 Com. Dig. Pleader C, 45, 47 ; 3 Saunders, 181). 
 Atlantic Mutual Fire Ins. Co. v. Young, 38 N. 
 H., 451. 
 
 8. The policy referred to an application 
 stipulating: "If such application does not 
 truly describe the property, this policy shall 
 be null and void." Held, it was a part of the 
 contract, and the papers were to be read to- 
 gether, as if they were one ; and as it was part of 
 the contract it was necessary for complainant 
 to set it out in the complaint, and to aver and 
 prove a compliance with all its conditi(ms. 
 Babbitt V. Liverpool, London and Globe Ins. Co., 
 66 N. C, 70. 
 
 9. Open policies to insure "Such sums as 
 shall be specified by application and mutu- 
 ally agreed and indorsed upon the policy." 
 Held, setting out the policy and indorsements 
 was not sufficient, for the indorsement did not 
 purport to have been made by the company; 
 that it was necessary to aver a mutual agree- 
 ment in respect to the indorsement Crane v. 
 StansriUe Ins. Co., 13 Ind., 446. 
 
 10. If the action is founded on a written 
 instrument, the original or a copy must be 
 filed with the complaint, and if it is not, the 
 defect may be reached by demurrer. In order 
 to comply with this rule, the paper. must be 
 identified by reference to it, and it must be 
 made an exhibit. Peoria Marine and Fire Ins. 
 Co. V. Walser, 22 Ind., 73. 
 
 11. In declaring upon the statute, the aver- 
 ments must be sufficient to bring the case 
 within the words of the statute ; if this is not 
 done the judgment must be arrested. Xaber v. 
 Jones, 40 Ind., 486. 
 
 12. The policy was made part of the com- 
 plaint, and it stipulated, that persons who shall 
 sustain loss shall forthwith give notice of it 
 to the company, and shall render a particular 
 account of it, signed and sworn to by the in- 
 sured, and shall state whether any and what 
 other insurance was made upon the property, 
 giving copies of the written portion of the 
 policies, also the cash value of the interest of 
 the insured, etc. The complaint alleged, tbat 
 " though proof of said loss has been duly 
 made and notice given, yet the defendant has 
 not made the plaintiff' good in said loss, etc." 
 Held, the complaint would have tiecn sufficient 
 if there had been a general allegation, that 
 the plaintiflF had performed " aH the con- 
 ditions on his part," for such an allegation is 
 equivalent to a reference to each condition 
 precedent, and when coupled with an averment 
 that he had performed, implies that all acts 
 necessary in that performance have been 
 done ; but in the absence of such an averment 
 the complaint was insufficient. Home Ins. Co. 
 V. Ihtke, 43 Ind., 418. 
 
 1 3. The complaint failed to show that the 
 losses for which the assessment was ordered 
 occurred while the maker of the premium 
 note was a member of the company. Held, 
 insufficient. Manlove v. If aylor, 3S Ind., 424; 
 Same v. Naw, 39 id., 289 ; Same v. Bender, id., 
 371; Whitman v. Mason, 40 id., 189; HasJia- 
 gan o. Manlove, 42 id., 330 ; Tippecanoe Town- 
 ship V. Mardove, 39 id., 249 ; Downs e. Ham- 
 mond, 47 id., 131. 
 
 14. Stipulated: "The boat ehall bo com- 
 pletely provided with master, officers and 
 crew." Held, the plaintifiF must aver and 
 prove that she was so provided. St. Louis Ins. 
 Co. «. Glasgow, 8 Mo., 713. 
 
 1 5. Revised Code of 1857, art 57, p. 803, re- 
 quires the plaintiff to allege in his declaration 
 that the defendant is a foreign insurance com- 
 pany and a corporotion; and that the person 
 upon whom process was served was its agent, 
 duly appointed and authorized to be served 
 with process for that company. The sum- 
 mons must conform to the declaration in de- 
 scribing the agent, and a full return by the 
 sheriff and the auditor's certificate must ap- 
 
 479 
 
959 
 
 PLEADING. 
 
 960 
 
 What is not sufficient. 
 
 pear in the record to sustain a judgment by 
 default. Continental Ins. Co. v. Mansfield, 45 
 Miss., 311. 
 
 16. Stipulated: "If this policy be made 
 upon or refer to an application, etc., such ap- 
 plication shall be considered a part of the 
 conti-act and a warranty by insured." The 
 proof showed that the policy was predicated 
 upon an application. Held, it was not neces- 
 sary for the insured to make any averment in 
 respect to the application Cdissenting, Ohris- 
 tiancy, J., citing in support of his dissent, 
 Glendale Woolen Co. v. Insurance Co., 21 
 Conn., 19 ; Duncan o. Sun Ins. Co., 6 Wend., 
 488 ; Burritt v. Saratoga Ins. Co., 5 Hill, 188 ; 
 Chaffee v. Cattaraugus Ins. Co., 18 N. T., 376; 
 Battles V. York County Ins. Co., 41 Me., 308; 
 Egan v. Mutual Ins. Co., 5 Denio, 336 ; Jen- 
 nings I). Clienango County Ins. Co., 3 id., 7.5; 
 Routledge ». Burrell, 1 H. Bl., 254 ; Worsley 
 V. Wood, 6 Term, 710 ; Geach «. Ingall, 14 M. 
 & W., 95 ; Strong v. Rule, 3 Bing., 315 ; Ken- 
 nedy «. St. Lawrence Ins. Co., 10 Barb., 385; 
 Murdock v. Chenango County Ins. Co., 2 N. Y., 
 210; Wilson ». Herkimer County Ins. Co., 6 N. 
 Y., 53 ; Tebbetts s. Hamilton Ins. Co., 1 Allen, 
 305; Ripley v. Mtaa, Ins. Co., 30 N. Y., 136; 1 
 Phillips on Ins., 5th ed., 413, 414, sec. 756; 
 1 Arnould on Ins., 578). Throop v. North 
 American Ins. Co., 19 Mich., 483. 
 
 17. An allegation in the complaint that the 
 sum sued for is now due is a mere conclusion 
 of law. The action was founded upon three 
 policies, set out in haec verhm. The complaint 
 did not show that sixty days had elapsed after 
 notice and proof of the loss, according to the 
 stipulations set forth in the policy; but it did 
 allege due notice, proof of the fire, loss 
 and demand, that no part had been paid 
 " and that the whole sum is now due." Held, 
 it did not show that sixty days had elapsed 
 after the loss and proof of the same; and 
 therefore the judgment must be reversed. 
 Doyle V. Phmnix Ins. Co., 44 Cal., 264. 
 
 18. The declaration alleged an insurance 
 lost or not lost up(m the ship Hoop, valued 
 at £1.460, and that she was not at the time the 
 policy was made, or at the time the loss hap- 
 pened, or at any other time whatsoever, the 
 property of nor belonging to the king, or any of 
 his subjects, that the insured were the persons 
 who gave the orders and were employed to ef- 
 fect the policy, and averred a loss by arrest or- 
 dered by the king. The defendant demurred. 
 
 480 
 
 Held, the policy must be taken t > be on interest, 
 and not a wagering policy, that it was neces- 
 sary to aver an interest in the plaintiff, and 
 without such an averment the plaintiff" could 
 not recover. Cousins v. Nantes, 3 Taunt., S13. 
 
 19. A statement of evidence is not equal to 
 an averment of fact. The fact should be 
 averred. It is not sufficient to state something 
 from which, under some circumstances, be- 
 tween the parties, the jury might possibly be 
 induced to find the fact. Dawson v. Wrench, 
 3 Exchr., 359; 18 L. J. Ex., 339. 
 
 20. The declaration stated that the plaintiffs 
 by certain persons using and carrying on busi- 
 ness, and in the said policy of insurance des- 
 ignated and described by the names, style and 
 firm of Dewar and Cullinford, the agents of 
 the plaintiffs in that behalf caused to be made 
 with the defendants a certain policy of insur- 
 ance, etc. Held, on special demurrer that the 
 declaration was bad because the christian 
 names of the plaintiffs were not stated, and 
 there was no excuse shown for such omission. 
 Sturgev. .HaM, 4 Exchr., 646; 19 L.J. Ex., 119. 
 
 al. On ship for twelve months. Accord- 
 ing to usage or custom, the policy was not to 
 be considered as effectual during a certain pe- 
 riod, for which notice was to be given by in- 
 sured to insurer, and for that period a certain 
 portion of the premium, commensurate with 
 that period, was to be returned by insurer. It 
 was averred that insured gave the requisite 
 notice that the vessel was " off risk " for that 
 period,- and that a cei-tain portion of the pre- 
 mium had been returned. Held, without any 
 new agreement the policy would revive of 
 itself; that there was no necessity to aver a 
 new agreement, for if there was such a cus- 
 tom, and it was to be taken as binding upon 
 the parties, the policy would revive when the 
 vessel was again upon risk ; that if there was 
 no such custom the policy was never, in point 
 of law, suspended, and this made it necessary 
 for insured to aver in his declaration a com- 
 pliance with all the warranties ; having failed 
 to do so, the declaration was bad in substance. 
 Hutchinson v. Bead, 4 Exchr., 761 ; 19 L.J'. Ex., 
 223. 
 
 22. Assumpsit upon an agreement to pay 
 such loss as might be sustained from any act 
 of fraud or dishonesty committed by C, who 
 bad made default in paying over poor rates 
 that he had collected. The declaration did 
 not aver that his authority to collect was de- 
 
961 
 
 PLEADING. 
 
 962 
 
 What is not sofBcient. 
 
 rived from his warrant. Held, a demurrer to 
 it must be sustained. Guardians of Garrick 
 on Shannon Union v. Guaranty Society, 2 Ir. C. 
 L., 422. 
 
 23. The terms of the policy were not fully 
 set forth in the pleadings ; but the policy was 
 marked by the officer of the court for the pur- 
 pose of identification. Mdd, the court was at 
 liberty, under sees. 63 and 64 of the common 
 law procedure act of 1853, to read the original 
 document as if incorporated in the record. 
 Anmtrong v. Turquand,9 Ir. C. L., 32. 
 
 24. Time policy on steamer plying on the 
 waters of " lakes Huron, St. Clair, Erie and 
 Ontai-io, the bay of Quinte, river St. Law- 
 rence, to Prescott, from April 4th to December 
 1, 1844." Averment that she set sail from St. 
 Catherines, bound on a voyage to Port Dal- 
 housie, situated on lake Ontario, thence down 
 the lake to Kingston on the said river St. Law- 
 rence, and that she was lost on the voyage 
 aforesaid. Seld, on demurrer, the declaration 
 was insufficient, because it did not appear that 
 St. Catherines was a port within the geograph- 
 ical limits of the contract, nor did it appear 
 that the loss occurred within the period of 
 time covered by the contract. Mittleberger,v. 
 Britiih Jmerican Axs. Co., 2 U. C. Q. B., 439. 
 
 25. Policy to B. Three months thereafter 
 insurer indorsed, "Loss, if any, payable to T." 
 Edd, in an action l(y T., the judgment must be 
 arrested, there being- no averments connecting 
 B. with the indorsement. Gommereial Ins. Go. 
 V. Treasury Bank, 61 Dl., 483. 
 
 26. The plaintiff averred that the goods in- 
 sured " Were burnt, consumed, and destroyed 
 by fire." Held, he could recover for only such 
 as were bnrnt, consumed and destroyed by fire; 
 that he could not recover for any lost or dam- 
 aged by water, or stolen, etc. Thompson v. 
 Montreal Ins. Go., 6 U. 0. Q. B., 319. 
 
 (b) Of pleas, answers or replications. 
 
 27. The perils insured against were perils 
 of river, fire, enemies, pirates, assailing thieves, 
 and all other losses which shall come, etc. 
 The defendant pleaded, 1st, that part of the 
 cargo was gunpowder, that it was unskillfully, 
 negligently, and carelessly stowed, in conse- 
 quence of which it took fire and caused the 
 loss ; 2d, that the loss was caused by the neg- 
 ligence of the officers and crew, who carried 
 a lighted candle or lamp to the gunpowder, 
 
 31 
 
 by which it was ignited; 3d, that she received 
 and had on board a quantity of gunpowder, 
 which increased the risk, contrary to the true 
 intent and meaning of the policy; and 4ch, 
 that the loss was caused by the officers and 
 crew of the boat, in taking and receiving largo 
 quantities qf gunpowder, and by carelessly 
 keeping the same, which ignited and caused 
 the loss. Held, the pleas were no answer to 
 the action. Waiers «. Merchants Louisville 
 Ins. Co., 11 Pet., 218; s. c, 1 McLean, 275. 
 
 28. The declaration failed to allege an aban- 
 donment. Held, the allegation was not neces 
 sary. Hodgson v. Marine Ins. Co., 5 Cranch, 
 100. The plea alleged a material misrepre- 
 sentation, but it did not state in what particu- 
 lar the misrepresentation was material. Held, 
 the plea was bad, because it ought to hiive 
 been made to appear, upon the face of the 
 plea, that the risk was affected by the repre- 
 sentation. Ibid. 
 
 29. If fraud is interposed as a defense to au 
 action, the facta must be disclosed to show 
 what was fraudulent. Sterling v. MercantiU 
 Mwt. Ins. Co., 32 Penn. St., 75. 
 
 30. Defendant pleaded that the assured was 
 asked to slate whether he had been afflicted, 
 during the past seven years, with any severe or 
 consiitu tional disease, and what. To which he 
 answered : " Six years ago, had typhoid fever ; 
 no other serious illness." Averment that the 
 insured has been afflicted with a severe and 
 serious disease and illness, known as inflam- 
 mation of the lungs. Replication : that insured 
 had no such disease which rendered an insur- 
 ance on his life more than usually hazardous, 
 or with which the directors of the company 
 ought to have been made acquainted. Held, 
 a departure. Scott v. Insurance Co., 9 Phila., 
 266. 
 
 31. The defendant pleaded that plaintiff, at 
 the time of effecting, obtaining and executing 
 said policy, did misrepresent the uses and 
 purposes to which the buildings insured were, 
 by the plaintiff, put, so as to cause said insur- 
 ance to be effected at a lower premium tliau 
 ought to have been, and contrary to the terms 
 and conditions of said policy." Htid, bad, 
 because the plea would be substantiated by 
 proof of any immaterial statements carelessly 
 made by the insured in respect to the purposes 
 for which the building was used. Deureea v. 
 Manhattan Ins. Go., 34 N. J., 244. 
 
 32. In assumpsit on a special agreement, 
 
 481 
 
963 
 
 PLEADING. 
 
 964 
 
 What IB not sufficient. 
 
 ■where the right of action depends upon a con- 
 dition precedent, performance of which is al- 
 leged in the declaration, defendant may, in- 
 stead of pleading the general issue, deny the 
 alleged performance of the condition, and put 
 himself upon the country. But where the 
 condition and its performance are not spe- 
 cially alleged in the declaration, defendant 
 may tender a special issue on the pei'form- 
 ance, by putting the condition upon record, 
 and averring its nonperformance. In such 
 case the plea must conclude with a verifica- 
 tion. Dewees v. Manhattan Int. Co., 84 K. J., 
 244. 
 
 8.3. The defendant pleaded that by the con- 
 ditions of the policy no action could he main- 
 tained, unless commenced within twelve 
 months next after the loss. The plaintiff re- 
 plied that the defendant, within the twelve 
 months next after the loss, had waived such 
 condition. Held, the replication was bad, 
 because it did not show, with that degree of 
 certainty required by the rules of pleading, 
 what the plaintiff expected to prove in rebut- 
 tal of the special plea. Oahman v. City Ins. 
 Co., 9 11. 1., 356. 
 
 34. Policy dated March 14th, to commence 
 March 9, 1866, insuring the life of a horse, 
 provided : " Insurer shall not be liable if the 
 animal was diseased at the time of insurance." 
 Answer averred, that when the policy was 
 issued the horse was diseased ; that when the 
 policy issued the horse was dead. Held, no 
 answer; because there was no averment that 
 the horse was diseased or dead " at the time 
 of the insurance." American Horse Im. Co., 
 V. Patterson, 38 Ind., 17. 
 
 35. The defendant answered that he made 
 the promissory note in consideration of a pol- 
 icy of insurance made by a foreign insurance 
 company ; that the contract was entered into 
 in this state, through an agent resident there- 
 in. Held, the answer was insufficient, for it 
 did not show a noncompliance with the stat- 
 ute. Black v. Enterprise Ins. Co., 33 Ind., 
 233. 
 
 36. The defense tendered in this paragraph 
 was, that the policy, upon which the action 
 was founded, had been canceled, and insurer 
 released from liability. The defendant set 
 out in this paragraph the evidences of the re- 
 scission and release. Held, these should have 
 been stricken out, for a party must not plead 
 his evidence (citing Vanschoick v. Farron, 
 
 35 Ind., 310; Lyttle v. Lytlle, 37 Ind., 385.) 
 King v. Enterprise Ins. Co., 45 Ind., 43. 
 
 37. The 7th paragraph of the answer alleged 
 an over valuation of the property destroyed by 
 Are ; but it did not allege that the overvalua- 
 ation was made to the insurer; nor that it was 
 under oath; nor that it was made in the pre- 
 liminary proof. Held, a demurrer to it was 
 properly sustained. Aurora Fire Ins. Co. v. 
 Johnson, 46 Ind., 315. 
 
 38. The plea alleged that a fire place was 
 insecure at the time the policy was made, and 
 that the plaintiff fraudulently concealed that 
 fact. Held, the plea was bad, because it did 
 not apprise the plaintiffs of the facts relied on 
 to establish the defect ; that the word " fraud- 
 ulent" did not magnify or identify the fact 
 concealed. Kentucky and Louisville Ins. Co. 
 V. Bmthard, 3 B. Mon., 634. 
 
 39. Stipulated': " In case the insured shall 
 become so far intemperate as to impair his 
 health or to induce delirium tremens, this pol- 
 icy shall be void." The answer alleged that 
 by the proof furnished by the claimant, it 
 fully appears that the insured just before his 
 death, and while said policy was in force, was 
 suffering from delirium tremens from drink. 
 Held, the answer presented no ground of de- 
 fense to the action. Connecticut Mutual Life 
 Ins. Co. v. Siegel, 9 Bush, 450. 
 
 40. If the execution of a policy of insur- 
 ance, properly described in the declaration, is 
 not denied by affidavit, it cannot be rejected 
 on the trial. Illinois Mutual Fire Int. Co. v. 
 Marseilles Manf'g Co., 6 111., 336. 
 
 41 . The policy prohibited a change of title 
 or any undivided interest in the property in- 
 sured, without consent of the company. 
 Held, a plea setting up an assignment bnt 
 failing to aver that the company had not as- 
 sented to it, was bad, for the court will pre- 
 sume that the conditions were complied with 
 until the contrary is made to appear. Peoria 
 Marine and Fire Im. Co. v. Lewis, 18 111., 553. 
 
 42. The defendant pleaded nil debit to an 
 action of debt brought upon a judgment ren- 
 dered in another state. Held, not a good plea. 
 Knickerbocker Life Ins. Co. v. Barker- 55 111., 
 241. 
 
 43. Stipulated : " Where real and personal 
 property insured shall be alienated, sold un- 
 der execution or decree, or the title shall be in 
 any manner transferred or changed, the insur- 
 ance shall cease, unless the policy shall have 
 
965 
 
 PLEADING. 
 
 966 
 
 What is not sufficient. 
 
 been duly assigned or confirmed by consent 
 of the directors, to the actual owner or owners ; 
 no policy shall be deemed to have been as- 
 signed or confirmed unless the consent of the 
 directors is certified on the policy by Ihe sec- 
 retary of the company." Insurer pleaded 
 that insured, by deed under seal, sold and con- 
 veyed the property without the company's 
 consent, in violation of the 15th condition of 
 the policy declai-ed upon, whereby the policy 
 ceased to be binding and became void. Held., 
 a bad plea, because it is not averred that the 
 conveyance was made before the loss oc- 
 curred, and because it is not averred that the 
 directors did not, after the alienation, confirm 
 the policy to the actual owner. Illinois Fire 
 Int. Co. V. StanUm, 67 111., ,354. 
 
 44. Stipulated : " If any change takes place 
 in the title or possession of the property, 
 whether by sale, legal process or judicial de- 
 cree, or voluntary transfer or conveyance, * 
 * * this policy shall be void." Plea: That 
 after the making and delivery of said policy, 
 and before the happening of the loss, to-wit, 
 September 1, 1873, a change took place in the 
 title of the property insured by voluntary 
 transfer, without consent of the defendant, and 
 said policy then and there became, and was 
 and has ever since been and now is void. 
 Hdd, the plea was insuflicient, for what con- 
 stitutes change of title by voluntary transfer 
 must be stated so that an issue can be taken 
 upon the fact or facts. 111. S. C. Glay Fire 
 and Marine Ins. Co. e. Wugterhausen, 7 Chi. 
 Leg. News, 358. 
 
 45. There was a plea of the general issue, 
 also a special plea setting up special matter 
 of defense, admissible under the plea of the 
 general issue. Held, no error to strike out the 
 special plea. City Fire Ins. Co. v. Garrugi, 
 41 Ga., 660. 
 
 46. The defendant pleaded nonpayment of 
 premium; also, that the plaintiff was guilty of 
 misrepresentations in describing the premises 
 insured, and that plaintifif had concealed ma- 
 terial facts from the insurers. Held, insurers 
 could not be permitted to say that there was 
 DO contract, and at the same time assert that 
 there was a contract, which was void. Michael 
 f>. Mut. Ins. Co., 10 La. An., 737. 
 
 47. A part of the answer professed and as- 
 sumed to answer the entire cause of action, 
 but if good at all, it was applicable to a part 
 of the cause of action. Held, the rule under 
 
 the code is the same as at common law. If a 
 party has a partial defense to an action, he 
 must set it up as such, and if he sets it up as 
 an answer to the whole cause, a demurrer to 
 it will be sustained. Fitssimmons o. City Fire 
 Ins. Co., 18 Wis., 384. 
 
 48. The action was by an assignee; and 
 under the plea of payment the defendant gave 
 in evidence a judgment against insurer as gar- 
 nishee. Held, a departure from the pleadings, 
 and that it could be taken advantage of by 
 way of instructions to the jury. WcUters v. 
 WasJiington Ins Co., 1 Cole, 404. 
 
 49. £100 on three several ships, to continue 
 only till any one of them arrived. Two were 
 lost; the defendant pleaded that one of the 
 ships arrived with value of £100, to which 
 there was a demurrer. Held, no plea, for the 
 £100 is on all the ships, and was not saved by 
 the arrival of one ; that as to the arrival of the 
 goods in that one, it was a good plea pro tanto. 
 Sichards f>. Cowel, 3 Keb., 174. 
 
 50. The plaintifi' alleged that the ship, 
 tackle, etc., were sunk and destroyed ; and the 
 defendant traversed specially, "That the ship, 
 tackle, etc., were sunk and destroyed." Held, 
 the plea was bad because the traverse was 
 conjunctive, wliereas it ought to have been in 
 the disjunctive. Coram «. SweeHng, 2 Saund., 
 200. 
 
 51. The defendant applied for leave to plead 
 that the policy was not under seal, and it was 
 refused. Weld «. Foster, 5 L. J. C. P., 13. 
 
 52. The declaration averred a total loss of 
 the ship insured, for that by stormy winds and 
 weather she became leaky and broken inso. 
 much that it became expedient and necessary 
 to sail to the nearest port; that there the 
 master was unable to procure money to make 
 repairs, and it thereupon became expedient 
 and necessary, for the benefit of all interested, 
 to sell her; and she was sold accordingly, and 
 became a total loss to the insured. Plea : that 
 as to so much of the loss as was occasioned 
 by the captain's inability to procure money to 
 make repairs, the same was occcasioned by 
 the default and negligence of the plaintiff. 
 Held, the plea was bad on general demurrer, 
 because it leaves unanswered a part of the 
 declaration which shows a good cause of ac- 
 tion DeVaiix c. Astell, 10 L. J. C. P., 46. 
 
 53. The defendant pleaded a release, by 
 deed, of the causes of action, and the plaintiff 
 replied, demanding oyer, of the release, and 
 
 483 
 
967 
 
 PLEADING. 
 
 968 
 
 What is not sufficient. 
 
 then averred that the money so released was 
 due for other and different contracts than those 
 in the declaration mentioned. Held, bad on 
 demurrer, because it neither traversed nor con- 
 fessed the allegations of the plea. Wilkinson 
 V. Idndo, 10 L. J. Ex., 94. 
 
 54. A defendant is not at liberty to traverse 
 any single fact included in the general issue ; 
 the defendant cannot traverse the payment of 
 the premium or the plaintiff's promise to ob- 
 serve the conditions of the policy. Suther- 
 land ■B. Pratt, 11 Mee. & W., 296) 13 L. J. Ex., 
 235; 13 id., 246; 7 Jur., 361. 
 
 55. The defendant pleaded that the damage 
 mentioned in the declaration occurred before 
 the plaintiff . became interested. Meld, bad, 
 upon general demurrer. SutJierland v. Pratt, 
 11 Mee. & W., 296; 12 L. J. Ex., 235; 13 id., 
 246; 7 Jur., 261. 
 
 56. On cotton mills, engine- house adjoin- 
 ing, and steam engine therein, worked by day 
 only. The application, part of the policy, 
 contained this question : " Do you work it by 
 night or by day?" Ans. "We work it by 
 day." Plea : the said steam engine and cer- 
 tain parts of tlie gear were worked by night, 
 and not by day. Held, a bad plea, because 
 the words " worked by day " applied to the 
 mill only. Whitehead «. Price, 2 C. M. & R., , 
 447; 5Tyrw,, 885; 1 Gale, 151. 
 
 5 7.. On vessel in the name of A. for others 
 not named. The real plaintiff averred the in- 
 terest in him, and that the policy was made 
 by A. for his benefit. Plea; that the policy 
 was not made by A. for account of the plaint- 
 iff, nor for his use and benefit. Held, upon 
 speoial demurrer that it amounted to a plea of 
 nouassumpsit, and was therefore bad. Redmond 
 V. Smith, 7 M. & G., 457; 8 Scott N. R., 250; 
 8 Jur., 711; 13 L. J. C. P., 159. 
 
 58. "Warranted free from average, unless 
 general, under three per cent., or the ship be 
 stranded." Insured stated two breaches, viz. : 
 that she ran aground and it became necessary 
 to let go her larboard and kedge anchors, and 
 to cut the cables ; that the anchors and cables 
 were left in the sea and lost, and she was fur- 
 ther strained and damaged, whereby the in- 
 sured sustained a general average loss. Sec- 
 ond breach: That plaintiff sustained an 
 average loss on ship, masts, ropes and cables 
 to an amount lai'ger than three per cent, on all 
 the moneys insured thereon. Two pleas: 
 First, that the anchors and cables were not 
 484 
 
 left in the sea and lost. Second, that plaintiS 
 had not suffered an average loss on ship, 
 masts, rppes and cables to the amount of three 
 per cent. Held, the pleas were bad because 
 the traverses were too large. Held, afeo, the 
 first breach was sufficient, but the second was 
 not, because it did not distinctly appear by 
 averment that the loss amounted to three per 
 cent, on the value of the ship. JDaieson v. 
 Wrench, 3 Exchr., 359; 18 L. J. Ex., 229. 
 And notwithstanding that the plea to the sec- 
 ond breach was bad, there must be judgment 
 for the defendant upon the second breach. 
 Ibid. 
 
 59. Plea, that the policy was in writing, 
 and made after 35 Geo. Ill, ch. 63, that de- 
 fendant did not subscribe it nor was the 
 name of the defendant expressed or specified 
 in or upon the policy according to the intent 
 and meaning of that act. Held, bad in sub- 
 stance, for 6 Geo. I, ch. 18, which prohibited 
 any partnership other than the two chartered 
 companies from underwriting a marine policy 
 had. been repealed by 5 Geo. IV, ch. 114: that 
 a subscription in the name of the partnership 
 firm was a compliance with 35 Geo. Ill, ch. 63 
 sec. 11. Held, also, that the plea was double, 
 because it put in issue the execution of the 
 policy and raised an objection to it under 35 
 Geo. Ill, ch. 63, sec. 11. Meid v. Allan, 4 
 Exchr., 326; 19 L. J. Ex., 39; 13 Jur., 1082; 
 Dmdall v. Allan,19 L. J. Q. B., 41. 
 
 60. " On stock in trade in oil store, Jiaving 
 no manufacturing process therein, and on 
 stock in trade in the open yard." Stipulated : 
 " If alteration shall be made to any building 
 insured, by which the risk to it or the insured 
 property is increased, the alteration must be 
 immediately notified to the company, that it 
 may be allowed by indorsement; otherwise 
 the policy will be void." Insured declared 
 for a loss of stock in trade in open yard, and 
 averred that the warranty as to the oil store 
 had been waived ; for that insiired had been 
 allowed to manufacture by boiling varnish, 
 and that after the waiver, the stock in the yard 
 was burned. Three pleas : First, an altera- 
 tion was made in the oil store, by which the 
 risk to it and to the stock was increased, of 
 which insurer had not notice. Second, two 
 boilers, in the policy mentioned as being out- 
 side the store, were removed inside, which in- 
 creased the risk to the building, the stock 
 therein, and to the stock in the open yard, of 
 
969 
 
 PLEADING. 
 
 870 
 
 When is not sufficient. 
 
 ■wbich insurer had not any notice. Tliird, in- 
 sured carried on in the oil store tlie hazardous 
 trade of varnish making, which increased the 
 risk to it, and to the stock in trade, of which 
 insurer had not any notice. And to these 
 were replications de iajuria. Held, the altera- 
 tions did not, per se, increase the risk, but the 
 question to be submitted was, whether the use 
 and application of the boilers increased it. 
 Held, also, the second plea was bad, hecause it 
 did not aver that there was a perpetual use of 
 the boilers, for the averment would be satis- 
 fled by proving the boiling of varnish in 
 them on one occasion only, and that would 
 not avoid the policy. Held, also, the third 
 plea was bad, because it was directed to the 
 whole declaration, in which there was an 
 averment that the trade of a varnish boiler 
 had been waived. Barrett «. Jermy, 3 Exc, 
 535; 18 L. J. Ex., 215. 
 
 61. The defendant pleaded that the insur- 
 ance was procured by fraud. Held, they must 
 make a special issue on the allegation of 
 fraud, or withdraw it from the record. Gamp- 
 heU V. Aberdeen Fire and Life Im. Ass. Go., 3 
 C. C. S. (N. S.), 1010. 
 
 62. Plea to the whole declaration, that 
 some of the buildings insured contained di- 
 vers furnaces and stoves used in the process 
 of manufacturing, and that contrary to the 
 terms of the policy they were not mentijned 
 in it. Held, a bad plea, because it purported 
 to answer the whole declaration, yet it ap- 
 peared that only a part of the buildings in- 
 sured had stoves and furnaces; also it was 
 bad for duplicity, because furnaces and stoves 
 were double defenses, the existence of either 
 being a sufficient single defense. Daniel v. 
 Sobinson, Batty, 650. 
 
 63. The court gave leave to plead nonas- 
 sumpsit, and the defendant pleaded that the 
 defendant himself did not undertake, etc. 
 Held, the plea must be set aside on motion. 
 WiUon e. Lynch, 1 Hud. & B., 336. 
 
 64. Plea: that the vessel not being seawor- 
 thy when she sailed, the pursuers were not 
 entitled to recover. Hdd, bad, because it was 
 too general. Baker o. Scottish Sea Ins. Co., 17 
 C. C. S., 417; 27 Scot Jur., 178. 
 
 65. Stipulated: "In case of accident, the 
 company shall have the right to interfere and 
 rescue her from peril, and to repair her if the 
 insured shall refuse or neglect to do so ; and 
 the aciA of either party in saving and repair- I 
 
 ing her shall not be consti'ued as a waiver of 
 nor an acceptance of an abandonment." The 
 defendant pleaded that she was wrecked ; that 
 insured refused to rescue and repair her ; that 
 defendant rescued her iVom the peril and re- 
 paired her, and 'had offered to return her to 
 the possession of the insured on payment of a 
 fair proportion of the charges and expenses 
 incurred. Held, the plea was bad, for it 
 amounted to a statement that there was not a 
 total loss of the vessel, and failed to afford 
 the means of determining whether the cost of 
 repairs were or were not so large as to bring 
 the case within the English rule which gov- 
 erns constructive total losses. Meagher v. 
 Home Ins. Go., 10 tf. C. C. P., 313. 
 
 66. A plea which merely alleges that the 
 property insured was insured in another 
 office is bad, because it does not set out the 
 particulars of the other insurance. Ramsay 
 Woolen Gloth Go. o. Mutual Fire Ins. Co., 11 
 U. C. Q. B., 516. 
 
 67. The declaration averred the perform- 
 ance of conditions, the rendition of a particu- 
 lar account upon oath, showing no other in- 
 surance on the premises. The fifth plea set 
 up a condition requiring a particular account 
 of the loss under oath, and a statement as to 
 whether any and what other insurance ex- 
 isted on the premises at the time of the fire. 
 Averment that, although the plaintiff had de- 
 livered a particular account, he had neglected 
 to state whetlier any other insurance existed 
 at the time of fire. Held, the plea was bad, 
 for the traverse did not come within the con- 
 dition of the policy. Williamson v. Niagara 
 District Ins. Go., 14 U. C. C. P., 15. 
 
 68. Plea: If any other insurance should 
 be made, whether prior or subsequent to the 
 date of policy, insured were to give notice of 
 it to insurers, and have it indorsed on the 
 policy; that several insurances were made 
 upon the property insured (setting them out), 
 of which defendants never had any notice until 
 after the loss, and the same were never indorsed 
 upon the policy. Replication: Plaintiff gave 
 due notice to defendant of all other insurance, 
 but defendant neglected to indorse it on the 
 policy. Held, the replication was bad, for in 
 a proceeding at law, it was necessary to aver 
 an indorsement upon the policy, whatever the 
 rule might be in equity. Noad v. Provincial 
 Ins. Go., 18 U. C. Q. B., 584. 
 
 69. Plea: She ran aground and was there 
 
 483 
 
971 
 
 PLEADING. 
 
 972 
 
 What must be specially pleaded. 
 
 stranded; that insured should have employed 
 prompt measures for her protection and re- 
 covery, and when recoverd, should have re- 
 paired her, but he neglected so to do, and that 
 according to the terms of the policy, defend- 
 ant rescued her from peril, repaired her, and 
 made her as sound and as good as she was be- 
 fore the accident occurred, and ofiered to re- 
 store her to the insured on payment of a fair 
 proportion of the expenses and costs of re- 
 pairs; but insured refused to receive her. 
 Seld, a bad plea. Meagher v. JBtaa Ins. Co., 
 19 U. C. Q. B., 530. 
 
 70. Plea: Policy contained a condition 
 that in case a promissory note should be given 
 for the premium, and it should not be paid at 
 maturity, the full amount of the premium 
 should be considered earned, and the policy 
 should be void while the note remained un- 
 paid ; that the premium was paid by plaintiff's 
 promissory note, which became due before 
 sixty days had elapsed after proof of loss, and 
 before commencement of suit. Held, a bad 
 plea. Meagher v. JStna Ins. Co., 19 U. C. Q. 
 B., 530. 
 
 71. Defendant pleaded a provision of the 
 policy, that the construction of furnaces in 
 buildings to be insured must be strictly de- 
 scribed, or if subsequently introduced, notice 
 must be given and the company's consent pro- 
 cured ; that if the risk should be increased by 
 any means within the control of insured, or 
 the premises occupied so as to render the risk 
 more hazardous, the policy should be void, 
 unless the company's consent were obtained. 
 Averment : Plaintiff made an addition to the 
 premises, and put into it two furnaces of 
 which defendants had not notice or knowl- 
 edge. Held, a bad plea, for the condition did 
 not prohibit the putting of furnaces into ad- 
 ditions. Lomas v. British America Ass. Go., 
 ^■ii U. C. Q. B., 310 ; Heneher v. Sarne, 13 id., 99. 
 
 72. The defendant pleaded an increase of 
 risk without notice to defendant. Plaintiff 
 replied a stipulation of the policy that in case 
 the risk should be increased it should be op- 
 tional with the defendant to terminate the pol- 
 icy. Averment: Defendant did not termi- 
 nate the policy. Held, bad, because it did not 
 aver that the defendant had notice of the in- 
 crease of the risk, Lomas n. British America 
 Ass. Go., 32 U. C. Q. B., 810; Eeneker v. Same, 
 13 id., 99. 
 
 73. The defendant filed a special traverse, 
 486 
 
 that the plaintiff was not interested in the 
 goods insured. Hdd, obnoxious to a demur- 
 rer, because it was too broad, for if he was in- 
 terested in any degree, he was entitled to re- 
 cover pro tanto. Ketchum v. Protection Ins. 
 Co., 1 Allen (N. B.), 186. 
 
 III. What must be specially pleaded. 
 
 1. Covenant on a policy under seal. Defend- 
 ant offered in evidence special matter of de- 
 fense. Held, everything relied on to avoid a 
 contract under seal must be pleaded specially, 
 and without a special plea, setting up the spe- 
 cial matter of defense, it was not admissible. 
 Marine Ins. Go. v. Hodgson, 6 Cranch, 206. 
 
 2. The defendant pleaded nothing but the 
 general issue. The plaintiff gave in evidence 
 the policy, which made the application for it 
 a part of the contract, and warranted the truth 
 of certain statements therein contained. The 
 defendant proved that certain of the statements 
 were untrue. The court instructed the jury 
 to disregard the evidence, because there was 
 no special plea for its admission. Held, error, 
 because the general issue was sufficient to let 
 in the proof. Jacobs v. National Life Ins. Co., 
 1 MacArthnr, 484. 
 
 3. The preliminary proof stated that the 
 premises were occupied as a dwelling house. 
 Held, the insurer could not defend on the 
 ground that the premises were used as a gro- 
 cery or liquor store, because that defense was 
 not set up in the defendant's answer. Moiher 
 V. Hibernian Ins. Co., 6 Hun. (N. Y.), 858. 
 
 4. If the defendant's charter contains an 
 exception as to the right to make certain con. 
 tracts, the defendant must plead the fact. Fee- 
 ny V. PeopU's Fire Ins. Co., 3 Rob. (N. Y.), 599. 
 
 5. The insurer cannot rely on a misrepre- 
 sentation to defeat the action, unless it is 
 specified as a ground of defense in the answer, 
 notwithstanding it is first disclosed by the evi- 
 dence of insured. Haskins v. Hamilton Mvt. 
 Ins. Co., 5 Gray, 342 ; Mulry v. Mohawk Val- 
 ley Ins. Co., 5 Gray, 541. 
 
 6. Defendant cannot give proof of, nor ask 
 instruction upon, any matter not stated as a 
 ground of defense in the answer. Fogg v. Cfrif- 
 fin, 8 Allen, 1. 
 
 7. The defendant pleaded non infregit con- 
 ventionem only, and offered evidence tending 
 to show that the time in which the company 
 had to repair and restore the property was ex- 
 
973 
 
 PLEADING. 
 
 974 
 
 What must be specially pleaded. 
 
 tended. The court instructed the jury that 
 parol evidence was not admissible to show 
 that insured consented to allow such repairs 
 to be made after the time limited in the policy 
 for repairs. Seld, the evidence was inadmis- 
 sible, for there was no plea to which it could 
 be applied, franklin Fire Ins. Go. v. Hamill, 
 6 Gill, 87-, 5 Md., 170. 
 
 8. Insurer insisted, upon the trial, that the 
 interest of insured had been misrepresented, 
 but the court refused to submit the question to 
 the jury, ffeld, no error, for insurer must 
 plead this specially, which was not done in 
 this case. SmiexOoHntg Mui.Ins.Co.v.Wood- 
 ruf, 26 N. J., 541. 
 
 9. The 9th rule of the supreme judicial 
 court requires parties to file " specifications 
 of the nature and grounds of defense, and on 
 the trial of the action they shall be confined 
 to the grounds of defense therein set fortb, 
 and all matters in the writ and declaration set 
 forth, not specially denied, shall be re- 
 garded as admitted for the purposes of the 
 trial." Seld, if the declaration alleged due 
 notice and proof of loss, according to the con- 
 dition of the policy, insured was not bound 
 to prove notice of the fire to the insurers, nor 
 that they had delivered proofs or statements of 
 loss, fox V. Gonwaff Fire Ins. Co., SH Me., 107. 
 
 10. Insurer cannot urge any matter of de- 
 fense unless it has been set up in his specificjv- 
 tions of defense. Dyer e. Pigcatagua Fire and 
 Marine Im. Co., 53 Me., 118; Gaston v. Mom- 
 moiUh Mut. Fire Ins. Go., 54 Me., 170. 
 
 1 1. Insurer offered evidence to show that 
 the policy had been canceled, but the court 
 told the jury that it was not competent for de- 
 fendant to deny the existence of the contract 
 Held, no error, for plaintiff counted upon the 
 policy, alleging its due execution, and defend- 
 ant could not show a rescission unless the 
 aflSdavit required by rule 79 was in the record. 
 Peoria Marine and Fire Ins. Co. v. Perkins, 16 
 Mich., 380. 
 
 12. Stipulated: "The insured shall, if re- 
 quested, exhibit to the insui'er his books of 
 accounts, invoices, etc." Held, not included 
 in the plaintiff's general allegation of per- 
 formance of all conditions precedent; the re- 
 fusal and failure of insured so to do was mat- 
 ter of defense; that defendant having alleged 
 demand, refusal and neglect, the plaintiff was 
 bound to deny or excuse compliance, and evi- 
 dence in excuse was not admissible, because 
 
 there was no issue tendered for it. Mueller v. 
 Putnam Fire Ins. Co., 45 Mo., 84. 
 
 1 3. When new matter is relied upon as a 
 defense to the action, it must be stated io the 
 answer. By merely answering the allegations 
 in tlie plaintiff's petition, the defendant can 
 try only such questions of fact as are neces- 
 sary to sustain the plaintiff's case. Northrup 
 0. Mississippi Valley Ins. Co., 47 Mo., 435. 
 
 14. Stipulated: " The action shall be barred 
 unless brought within six months after the 
 loss." Held, it could not be taken advantage 
 of by demurrer; defendant must plead it 
 specially, for the effect of the stipulation may 
 have been taken away by a new promise or 
 waiver. Carter v. Humboldt Fire Ins. Co., 13 
 Iowa, 287. 
 
 1 5. Stipulated : " If there appear any fraud 
 or false swearing, the claimant shall forfeit all 
 claims by virtue of this policy." Insurer 
 pleaded the general issue only. Held, evi- 
 dence of fraud was not admissible. Flynn v. 
 Merchants Mut. Ins. Go., 17 La. An., 185. 
 
 16. The insurers offered to prove that the 
 insured misrepresented the risk, but pleaderl 
 the general issue only. Held, the evidence 
 was not admissible. Pino e. Merchants Mvi. 
 Ins. Co., 19 La. An., 214. 
 
 17. Defendants filed a plea of nonas- 
 sumpsit, witli notice of special matter, setting 
 up that insured had not an absolute estate to 
 the premises, the title to which was fraudu- 
 lently concealed from the defendants; that 
 the premises were incumbered by mortgages, 
 judgments and mechanics' liens, which were 
 not disclosed at the time the insurance was 
 made; that the risk was increased after the 
 policy was made, contrary to the terms of the 
 contract, and that the buildings were inten- 
 tionally destroyed by fire by a person at that 
 time a member of the corporation. Held, 
 under this plea and notice, the defendants 
 could give in evidence illegality of the con- 
 tract, noncompliance with express or implied 
 warranties, want of interest, misrepresentation 
 or concealment, or noncompliance with any 
 of the terms of the policy. Illinois Mutual 
 Fire Ins. Co. v. Marseilles Manvfaduring Co., 
 6 111., 236. 
 
 18. Stipulated: "Keeping of gunpowder 
 shall avoid, the policy." There were eleven 
 cans of gunpowder for sale on the premises 
 at the time of tbe fire. The complaint alleged 
 that the plaintiff had in all respects faithfully 
 
 487 
 
975 
 
 PLEADING. 
 
 976 
 
 What need not be specially pleaded — What the pleadings admit, and what they do not admit. 
 
 complied with all terras and conditions of the 
 said policy on her part to be kept, observed 
 and performed. This allegation was not de- 
 nied, nor did the answer set up the keeping 
 of gunpowder as a defense. Held, the fact 
 that there were eleven cans of gunpowder for 
 sale on the premises was irrelevant to any 
 issue in the cause ; it should have been set up 
 by the defendant, and an issue raised upon it; 
 and in the absence of such issue, the plaintiff 
 must recover. Cassacia v. Phcmix Ins. Co., 38 
 Cal.. 628. 
 
 19. The defendant offered matter admis- 
 sible as an affirmative defense, but it was 
 not set up in the answer. Held, inadmis- 
 sible. Mayor; etc., of New York v. Brooklyn 
 Ins. Co., 43 K. Y. (4 Keyes), 465; s. c, 3 Abb. 
 Dec, 251; 41 Barb., 231. 
 
 20. Certain specified inflammable articles 
 were prohibited, but no defense was presented 
 by the pleadings on the ground that the pro- 
 hibited articles were kept. Dpon the trial, 
 evidence was given, without objection, which 
 established the fact that one of the prohibited 
 articles was upon the premises at the time of 
 the fire. The defendant moved for a nonsuit, 
 Held, it was properly overruled. Williams v. 
 Mechanics and Traders Ins. Co., 54 N. Y., 577. 
 
 21. Rule 104 provides; " In case the com- 
 pany shall rely in whole or in part upon the 
 failure of the plaintiff to perform or make 
 good any promise, representation or warranty 
 not contained in the policy, but set forth in 
 any other paper or instrument in the hands of 
 the insurer, the notice under the general issue 
 shall declare the same, and indicate the breach 
 relied on." The defendant filed nothing but 
 the plea of the general issue. . Upon the trial, 
 it appeared that the plaintiff warranted the 
 truth of certain statements made in his appli- 
 cation, among which was the statement that 
 the premises were mortgaged for $5,000. It 
 also appeared that they were mortgaged for a 
 much larger sum. Held, the defense on that 
 ground was one which defendants had the 
 right to waive; and the fact that no notice 
 was attached to the general issue, precluded 
 them from raising that defense at the trial, for 
 it was not in issue. The mere fact that the 
 whole or any portion of the evidence showing 
 such a breach was introduced by the plaintiff 
 as a part of his case would make no difference. 
 The case must be disposed of in accordance 
 with the issue made between the parties. Home 
 
 488 
 
 Ins. Co. V. Curtis (Sup. Ct. Mich.), 5 Ins. Law 
 Jour., 120. 
 
 IV. What heed not be speciaixt 
 
 PLEADED. 
 
 1. Under a general or specific denial of any 
 part of a complaint, the defendant may give 
 evidence to disprove the matter affirmatively 
 alleged in the complaint. Greenfield v. Massa- 
 chusetts Mutual Life Ins. Co., 47 N. Y., 430. 
 
 2. The defendants denied generally, and 
 averred that they had reason to suspect that 
 the loss was altogether fraudulent. Held, suf- 
 ficient to admit evidence tending to show that 
 the loss was fraudulent, or that the plaintiff 
 had not the goods alleged to have been lost. 
 Brugnot v. Louisiana State Ins. Co., 12 La. (O. 
 8.), 326. 
 
 3. Insurers pleaded nil debet. Held, proof 
 of fraud, or false swearing as to the amount 
 of the loss, was admissible under that plea 
 (citing 1 Chitty on PI., 481 ; 2 Greenl. Ev., 281). 
 Phanix Ins. Co. v. Munday, 5 Cold., 547. 
 
 "NT. What the pleadings admit. 
 
 1. The defendant alleged certain facts in 
 their answer as a defense to the action ; and 
 plaintiff filed a replication in which he stated 
 that the defendants had waived the matters 
 stated in the answer. Held, an admission of 
 of the facts set up in the answer. Murphy «. 
 People's Mquitable Mutual Fire Ins. Co.. 1 
 Allen, 239. 
 
 2. Plaintiff averred a delivery of the partic- 
 ular account of the loss, and that the defend, 
 ant waived all imperfections and deficiencies 
 of the same, and consented to amended proofs 
 of loss; the defendant did not traverse these 
 averments. HM, by failing to traverse them 
 they were admitted. Peoria Mwrine anid Fire 
 Ins. Co. T. Lewis, 18 111., 553. 
 
 VI. What the pleadings do not 
 
 ADMIT. 
 
 1. If the instrument does not show on its 
 face an apparent execution, a failure to deny 
 its execution under oath does not admit its 
 execution. Peoria Marine and Fire Ins Co. v. 
 Walser, 22 Ind., 73. 
 
 2. The plaintiff declared for a total loss, and 
 the defendant pleaded fraudulent concealment 
 
977 
 
 PLEADING. 
 
 978 
 
 Of pr^umption — Surplusage — Grenerally. 
 
 only. Held, a total loss was not admitted. 
 King v. Walker, 2 H. & O., 884; 38 L. J. Ex., 
 167; s. c. affirmed, 3 H. & C, 209; 11 Jur. (N. 
 S.), 43 ; 33 L. J. Ex., 335 ; IS W. R., 232. 
 
 3. Plaintiff declared for a loss of wheat in 
 
 '. a certain warehouse. Defendant pleaded that 
 
 he was not interested. Held, the pleadings 
 
 did not admit the quantity declared for. Clark 
 
 V. Western Asi. Co., 25 XJ. C. Q. B., 309. 
 
 VII. Of peesumtion. 
 
 1. Several special pleas, to which there was 
 a demurrer which was sustained. Held, if a 
 good special plea is acljudged insufficient by 
 the court below, this court Will not presume 
 that the court below did not adhere to its de- 
 cision, therefore it will not be presumed that 
 the special matter was give'ii in evidence un- 
 der the plea of the general issue. The record 
 must show affirmatively that the special mat- 
 ter was admitted, or the judgment will be re- 
 versed. Albany/ City Fire Ins. Go. v. Keating, 
 46 III., 394. 
 
 8. There was an unanswered plea in the 
 record, but the evidence tendered in it might 
 have been given under another plea iiled. 
 Held, no ground for reversal. Atlantic Ins. 
 Co. e. Wright, 23 111., 463. 
 
 3. There were several counts in the declara- 
 tion, some of which were good, and others de- 
 fective. The jury found generally. Held, the 
 party complaining was bound to have Ihe jury 
 directed to disregard the defectiye counts; 
 failing to do so no ground of error could he 
 urged on the insufficiency of the declaration 
 if any one count was good. Peoria Marine 
 and Fire Ins. Co. v. Whitehill. 2a 111., 466. 
 
 VIII. StTKPLUSAGE. 
 
 Kedundant averments, unnecessary exhibits, 
 and useless verbiage, ought to be stricken out 
 upon motion or by the court of its own mo- 
 tiou (citing Hynds v. Hays, 25 Ind., 31). King 
 t. Knierprise Ins. Co., 45 id., 43; Mutual Bene- 
 M Life Int. Co. v. Cannon, 48 id., 364. 
 
 IX. Geneeally. 
 
 1. Surprise. The plaintiff has a right to 
 know what questions the defendant intends to 
 litigate, hence the defendant cannot, in the 
 court above, present questions not distinctly 
 
 raised by the pleadings. Weed «. Schenectady 
 Ins. Co., 1 Lans., 453. 
 
 8. Videlicet. The insured is not tied down 
 to the dates stated in his complaint; he 
 may prove that a notice was given of the loss 
 at a date earlier than that laid in the com- 
 plaint. Honey e. American Mut. Ins. Co., .3 
 Duer, 554. 
 
 3. Reply not required. The legal effect of 
 the answer was a denial of the facts set up in 
 the plaintiffs' petition. Held, a reply was not 
 required. Dayton Ins. Co. v. Kelly, 34 Ohio 
 St., 345. 
 
 4. Traverse. The action was founded upon 
 a certificate of insurance which referred to a 
 policy by number. The insurer pleaded that 
 the policy referred to was never made, but 
 that according to the custom and dealing be- 
 tween the parties the certificate was made sub- 
 ject to the conditions usually contained in pol- 
 icies at that time issued by the insurer. In- 
 sured traversed the pleas, and insurer offered 
 a copy of policies usually issued by the in- 
 surer at the time. Held, admissible, for in- 
 sured could not traverse the pleas and then 
 deny to insurer the right to introduce proof to 
 sustain them. Home Ins. Co. v. Favorite, 46 
 III., 368. 
 
 5. Ore tenus. Actions originating before 
 justices of the peace require no pleadings in 
 the appellate court, except defenses under the 
 statute of limitations, setoff, and matter of 
 abatement. Heller v. Crawford, 37 Ind., 379. 
 
 6. Written contract. If there is no allega- 
 tion that the contract is in writing, and no 
 copy of it is filed, the presumption is that the 
 contract declared on is not in writing; but if 
 the contract stated in the pleading is one which 
 the law requires to be in writing, then the 
 pleading is obnoxious to a demurrer (citing 
 Harper v. Miller, 27 Ind., 277). King v. Enter- 
 prise Ins. Co., 45 Ind., 43. 
 
 7. Jurisdiction. The answer was in the 
 nature of a plea to the jurisdiction. Held, it 
 must be strictly construed, and no presump- 
 tions allowed in favor of defective averments. 
 Arnet v. Mechanics Mvt. Ins. Co., 23 Wis., 516. 
 
 8. NUI tiel corporation. A corporation, 
 when sued on a contract made by it, cannot 
 plead nul tiel corporation unless it Is mis- 
 named, or there has been a dissolution ; for 
 the plea is absurd, because it appears, and yet 
 pleads that it does not exist. MeCullough v. 
 Talledega Ins. Co., 46 Ala., 876. 
 
 489 
 
979 
 
 POLICY (OF THE). 
 
 980 
 
 Who has authority to procure — When it attaches. 
 
 9. Total includes i>artial. Averment, total 
 loss. The jury found for a partial loss. Hdd, 
 plaintiff was entitled to recover what he 
 proved, though it was partial instead of total. 
 Gardiner v. Crosedale, I W. Bl., 198; 2 Burr, 
 904. 
 
 .10. — The declaration averred a total losSj 
 caused by sale of ship in a port of refuge, into 
 which she had been driven by perils of the 
 sea. Held, sufficient to support a partial loss, 
 the master having sold her because he could 
 not procure funds to repair. Deeaux v. Aiiell, 
 4 Jur., 1135. 
 
 11. Several breaches. Two breaches were 
 assigned in the declaration. One was ad- 
 judged sufficient, the other insufficient. Held, 
 the court must give judgment upon eacli 
 breach separately, tl\e same as if the defend- 
 ant had pleaded to one and demurred to the 
 other. Dawson v. Wrench, 3 Exchr., 359 ; 18 
 L. J. Ex., 229. 
 
 12. Ini'onsistent counts. Two counts: The 
 first upon a loss by perils of the sea ; the sec- 
 ond by barratry of the master. Meld, one of 
 them must be stricken out, because they did 
 not establish a distinct subject matter of com- 
 plaint within the meaning of the rule, H. T. 
 4 Will., 4. Blyth v. Shepherd, 9 Mee. & W.^ 
 763; 11 L. 3. Ex., 293; 6 Jur., 489. 
 
 13. — The mode or particular facts to estab- 
 lish a waiver ought not to be stated in the 
 pleadings, for that would be pleading the evi- 
 dence. It is the duty of the pleader to state 
 the ultimate fact. Ketehum v. Protection In». 
 Co., 1 Allen (N. B.), 136. 
 
 POLICY (OF THE). 
 
 (See Open Policy; Paid up Policy; Valid and Void 
 Policy; Wirs's Policy.) 
 
 I. Who has authority to procure. 
 II. When it attaches. 
 
 III. DOES not attach. 
 
 IV. Whose interests are covered. 
 
 V. NOT COVERED. 
 
 VI. What places are within the de- 
 scription. 
 VII. places are not within the 
 
 description. 
 
 VIII. PROPERTY is within THE DE- 
 
 SCRIPTION. 
 
 490 
 
 IX. What property is not within the 
 description. 
 
 X. CAUSES OP loss are WITHIN. 
 XI. NOT WITHIN. 
 
 XII. DAMAGES ARE COVERED. 
 XIII. NOT COVERED. 
 
 XIV. When it terminates. 
 
 XV. DOES NOT terminate. 
 
 XVI. CEASES AND REVTVES. 
 
 I. Who has authoeity to peoouee. 
 
 A. ordered goods of B., at Bristol, for Rouen, 
 and directed his London agents to insure; but 
 B., in ignorance of that, caused them to be in- 
 sured. Tiie policy effected by the London 
 agents was void on the ground of conceal- 
 ment. There was proof tending to show that 
 the agent of A. directed B. to make the insur- 
 ance. Held, whether it was made by previous 
 authority or subsequent acquiescence was im- 
 material, if A.'s agent had an implied authority 
 to effect the policy. Barlow «. Leekie, 4 
 Moore, 8. 
 
 II. When it attaches. 
 
 1. At and from Kingston, Jamaica, to Alex- 
 andria. She took a cargo at Kingston for 
 Baltimore and Alexandria and sailed, intend- 
 ing to go first to Baltimore and thence to 
 Alexandria, but before she arrived at the divid- 
 ing point was captured. Held, it was an in- 
 tended deviation only, and not a noninceptioa 
 of the voyage insured. Marine Ins. Go. v. 
 Tucker, 8 Cranch, 357. 
 
 2. Policy on ship at and from a port named 
 will attach in port, although she be at the time 
 undergoing extensive repairs, and, in general 
 sense, for the purposes of the whole voyage, be' 
 utterly unseaworthy. M'Lanahan v. Universal 
 Ins. Co., 1 Pet., 170. 
 
 3. The premium was due July 16, 1870. On 
 the first of October following, insured applied 
 to defendant's agent to reinstate the policy, 
 which was done, insured fUrnishing his own 
 certificate that he was in good health, and was 
 also examined by the company's pliysiciau. 
 The renewal receipt was delivered on the 14th 
 following. Defendant asked the court to in- 
 struct that if the deceased had any derange, 
 ment of health between October 1st and 14th, 
 and that fact was concealed from defendant, 
 plaintiff could not recover. Held, it was 
 
981 
 
 POLICY (OF THE). 
 
 982 
 
 When it attaches. 
 
 properly overruled, for there was no obligation 
 resting upon the deceased or plaintiff to fur- 
 nish the company with further statements of 
 his physical condition between the dates men- 
 tioned. Day V. Mutual Benefit Life Ins. Co., 1 
 MaoA., 598. 
 
 4. The policy was not delivered until several 
 days after its date, but it was dated tlie day the 
 premium was paid. Held, it took effect by 
 relation from its date. Liglitbody v. North 
 Aineriea Ins. Co., 23 Wend., 18. 
 
 5. Ship sprung aleak as soon as she got to 
 sea, returned to port, discharged cargo and 
 found that it proceeded from causes existing at 
 time cargo was taken in ; that she was not sea- 
 worthy when she sailed. Repairs were made 
 and cargo reshipped, and she proceeded on 
 her voyage. Held, the policy attached while 
 she was in port; that insurers were liable after 
 her return to port, and while she was on sub- 
 sequent homeward voyage. Taylor v. Lowell, 
 8 Hass., 331. 
 
 6. From Bordeaux to India. " Risk at an 
 end when master shall have landed cargo and 
 entirely invested the proceeds in produce of 
 India." Another policy upon cargo on board 
 the same ship "from India to port of dis- 
 charge in tlie United States, with liberty to 
 stop and trade at the Isle of France, or Bour- 
 bon, or both." She arrived at Sumatra, dis- 
 posed of part cargo for produce, sailed with it 
 and balance of outward cargo, and arrived at 
 Isle of France, disposed of outward cargo, 
 and took on produce for home cargo. Held, 
 the second policy attached. Cleveland v. 
 Fettyplace, 3 Mass., 891. 
 
 7. "On cargo and freight" at and from a 
 port attaches, notwithstanding the vessel 
 needs repairs to make her seaworthy. Ship, 
 while at Vera Cruz with a cargo on board, 
 was found unseaworlhy for the voyage ; but 
 she sailed thence, and from necessity put into 
 Campeachy, where she discharged cargo, 
 caulked, reloaded it and sailed. She took in 
 at another port a quantity of logwood, and 
 there commenced to leak again, but got under 
 way for port of discharge. She put into 
 Campeachy again from necessity, and again 
 proceeded, and again put into Campeachy 
 from necessity, where the cargo was wholly 
 unladen and vessel repaired and made sea- 
 worthy. The cargo was sold to defray the ex- 
 pense of repairs. She again took another 
 cargo, with which she arrived in the United 
 
 States. Held, the policy attached at Vera 
 Cruz and again at Campeachy, after she was 
 made seaworthy, and that insurers were enti- 
 tled to both the premiums. Mwchanti Ins. 
 Co. e. Clapp, 11 Pick., 56. 
 
 8. On ship. "At and from Calais, July 
 16th, noon, and at and from all ports and 
 places to which she may proceed in the coast- 
 ing business for six montlis." Neither party 
 knew when she sailed from Calais. There 
 was no evidence that she was at, or was prose- 
 cuting her voyage from Calais on the day 
 named ; but it appeared that it was the inten- 
 tion of both parties to insure on time without 
 regard to the place where she might be. Held, 
 the policy attached. Martin v. Fishing Ins. 
 Co.^ 20 Pick., 389. 
 
 9. " Upon a vessel, building at Perry, to take 
 effect as soon as waterborne, at and from 
 Perry," etc. She was waterborne the day be- 
 fore the policy issued. Held, if she was 
 waterborne when the policy was executed it 
 took effect at once. Cobb v. New England 
 Mutual Marine Ins. Co., 6 Gray, 193. 
 
 10. Open policy. " On wine, brandy, sweet 
 oil, and other merchandise, as interest may 
 appear, with fifteen per cent, on the invoice, to 
 be shipped to insured during six months from 
 and after first day of August, 1831, lost or not 
 lost, at and from Havre and any port or ports 
 of France south of it." She commenced 
 loading about July 10th, and continued until 
 August 6th, the day she sailed. Held, the 
 word shipped did not mean putting on board 
 or lading, but dispatching the goods; that the 
 policy included all goods on board at the time 
 she sailed, if her sailing was within six 
 months from August 1st; taking the goods on 
 board before August 1st did not take them 
 away from the protection of the policy. 
 Sorbi V. Merchants Ins. Co., 6 La. (O. S.), 185. 
 
 11. She cleared for Antwerp, but her desti- 
 nation was Portsmouth. The policy was 
 written from Charleston to Portsmouth. Held, 
 no defense to the action. McFee v. South Caro- 
 lina Ins. Co., 2 McCord, 503. 
 
 12. " On goods from London and Ramsgate 
 to Nantz, with liberty to call at Ostend." She 
 cleared for Ostend only, but sailed for Nantz 
 direct Held, the insurers were liable for the 
 loss. The policy was executed July 7th. The 
 ship took in her cargo between July 24th and 
 August 17th. She sailed August 24th. The 
 proclamation for making reprisals on French 
 
 491 
 
983 
 
 POLICY (OF THE). 
 
 984 
 
 When it attaches. 
 
 ships was dated July 39th, and published July 
 31st. Bat the evidence satisfied the court that 
 all parlies had in contemplation the war risk 
 when the policy was made. Held, the insurers 
 were liable. PlanchS v. Fletcher, 1 Doug., 251. 
 
 13. On cargo from Plymouth to Malta, 
 with liberty to touch any port for any purpose 
 whatsoever. She touched at Penzance and took 
 part of the goods described in the policy. 
 Held, the policy covered the goods taken at 
 Penzance. Violelt v. Mlnutt, 3 Taunt, 419. 
 
 14. On freight from Grenada to London. 
 There was bat one custom house for the 
 island. She arrived there, and at one place 
 discharged part of cai-go, then proceeded to 
 two others and discharged part, leaving a 
 residue to be discharged at a fourth place, 
 where she was to take on her home cargo; 
 but was lost before she reached it. Held, not 
 a deviation, and that she was lost while pur- 
 suing a purpose of the voyage. Warre v. 
 Miller, 4 B. & C, 538; s. c, 1 C. & P., 337; 
 aflBu-med, 4 L. J. K. B., 8; 7 D. & R., 1. 
 
 15. From Landscroua to Wolgast. They 
 were laden at Gottenburg, some months before 
 the voyage commenced. She sailed from 
 Gottenburg and arrived at Landscrona, where 
 a part of the cargo was taken out on the quay 
 to enable the custom house officers to inspect 
 and examine the whole; the duties of which 
 were paid. Gottenburg was a hostile port. 
 She was captured by a French privateer and 
 condemned. Sweden was not a cobelligerent 
 with France. Held, Landscrona was to be re- 
 garded as the loading port, and the insurers 
 were accordingly liable. Nomien, v. Reid, 16 
 East, 176. 
 
 16. "On freight against perils of the sea 
 and all other perils, losses, and misfortunes 
 that had or should come to the hurt, detri- 
 ment or damage of the subject matter of the 
 insurance." She was taken into dock for re- 
 pairs, and a full cargo was ready for her be- 
 fore the repairs were completed. After they 
 were finished, in making the attempt to 
 take her from the dock into the river, she was 
 greatly damaged and was condemned as un- 
 worthy of repairs, broken up and sold. Held, 
 the loss of freight was within the policy. 
 BeVaux v. Janson, 8 L. J. (N. S.) O. P., 284; 
 5 Bing. (N. C), 579; 3 Jur., 678. 
 
 17. On ship at and fcom Havana to Green- 
 ock. While passing over a shoal in the har- 
 bor at Havana, she ran against an anchor and 
 
 received injury. Held, the policy had at- 
 tached, and insurers were liable. Haugktonv. 
 Empire Marine Itis. Co., 1 L. R. Ex., 206 ; 4 
 H. & C, 41 ; 13 Jur. (N. S.), 376; 35 L. J. Ex., 
 117; 14 W. R., 645; 15 L. T. (N. S.), 80. 
 
 18. "On hides, by ship or ships, to be de- 
 clared." The plaintiff's clerk made out a slip 
 declaring £3,455 on hides on the Socrates, but 
 they were shipped on the Socrate and totally 
 lost. The jury found that both parties in- 
 tended to insure the hides on any vessel on 
 which they might happen to be, though they 
 both supposed it to be the Socrates. Held, the 
 defendants were bound to insure on any ships 
 selected by the insured, and the misnomer was 
 therefore immaterial. lonides o. Pacific Fire 
 and Marine Ing. Co., 6 L. R. Q. B., 674; 25 L. 
 T. (N.. S ), 490; affirmed in Ex., 7 L. R. Q. B., 
 517; 41 L. J. Q. B., 190; 21 W. R.,32; 36 L. T. 
 (N. S.), 738. 
 
 19. Plaintiffs made a policy on cargo at 
 and from Liverpool to any ports in any order, 
 backwards and forwards on the coast of Africa, 
 and thence back to a port of discharge in the 
 U. K. Outward cargo to be considered home- 
 ward interest twenty four hours after her ar- 
 rival at her first port of discharge." They 
 procured reinsurance subject to all clauses 
 and conditions of the original policy, at and 
 from any port or ports in any order on the 
 west coast of Africa, to port of discharge in 
 the U. K., risk to commence from the loading 
 of the goods at as afcove. After she had ar- 
 rived at her first port of discharge and re- 
 mained more than twenty-four hours, the 
 goods were lost. Hdd, " On the loading of 
 the goods at as above," must be qualified bj' 
 the words of the original policy, " Outward 
 cargo to be considered homeward interest 
 twenty-four hours after her arrival at her first 
 port of discharge." For if there is anything 
 to show that the loading was to commence at- 
 a time prior to the attaching of the policy, or 
 that the word " loading " was used in a sense 
 difiterent from the mere putting on board, then 
 that sense shall prevail. Hence, the contract 
 of reinsurance attached on the goods on board 
 immediately after the expiration of twenty- 
 four hours from the time she arrived at her 
 first port of discharge on the coast of Africa. 
 Joyce 11. Realm Marine Ing. Co., 7 L. R. Q. B., 
 580; 41 L. J. Q. B., 356; 37 L. T.^(N. S.), 144. 
 
 20. Insured, a common carrier, sometimes 
 carried goods on deck at shipper's request and 
 
985 
 
 POLICY (OF THE). 
 
 986 
 
 When it does not attach. 
 
 risk. At other times, for his own conveni- 
 ence, he carried goods on decli which, by the 
 terms of the bills of lading, were to be under 
 deck ; and for the purpose of protecting him- 
 self against liability in such cases, he pro- 
 cured an open policy "Against loss by jetti- 
 son, the several shipments to be subsequently 
 declared." He accepted a parcel of cotton at 
 Alexandria, to be carried upon deck; but his 
 agent, by mistake, gave a bill of lading for it 
 under deck. It was not declared upon tlie 
 policy, and other shipments, some of them 
 subsequent in date to this, were declared, and 
 the whole amount of the policy appropriated. 
 This shipment was lost by jettison, and the 
 shipper demanded payment for it of the car- 
 rier. Thereupon insured altered a prior dec- 
 laration made upon the policy, and substituted 
 the shipment in question. It was found 
 specially that according to the usage, a policy 
 of this character attaches to the goods in the 
 order in which they are shipped, and in that 
 order the insured is bound to declare them ; 
 that in case of mistake in declaring shipments 
 in their order, the insured is bound to rectify 
 them, which had been sometimes done even 
 after a loss. Held, tlie bill of lading put the 
 cotton at the risk of the carrier-; that the 
 usage was binding upon both parties; that 
 the insured had the right to correct his decla- 
 ration, even after the loss had occurred ; that 
 the plaintiff was entitled to recover the value 
 of the goods lost. Stephens v. Augtralasian 
 Ins. Co., 8 L. R C. P., 18; 43 L. J. C. P., 12. 
 
 21. " Interest or no interest, on any ship he 
 should come in, from Virginia to London, the 
 money to be paid, though bis person should 
 escape or the ship be retaken." He embarked 
 on the Speedwell ; she sprung a leak, and he 
 was put on board the Friendship, arriving 
 safe in London, but the Speedwell was taken. 
 Held, the underwriter was liable, for the insur- 
 ance was on the ship in which he commenced 
 the voyage. Dick v. Barrell, 2 Strange, 1248. 
 
 III. "When it does not attach. 
 
 1. On cargo from Nevitas to New York. 
 She arrived at Nevitas, was permitted to sell 
 but a small part of her outward cargo there. 
 She made sail for Jamaica October 16th, and 
 was lost between Nevitas and Jamaica. Held, 
 the pol icy never attached. Richards v. Marine 
 Itu. Go., 3 Johns., 307. 
 
 2. On ship at and from Calcutta to New 
 York, with liberty to touch at Madras. She 
 went to Madras and sailed direct for New 
 York. Held, the voyage insured never com- 
 menced ; that the policy never attached, and 
 the insured was entitled to a return of the pre- 
 mium. Murray v. Columbian Ins. Co., 4 
 Johns., 443. 
 
 3. The policy was written, Vera Cruz to New 
 York. She had taken a cargo from New York 
 to Vera Cmz, and after some sea damage and 
 other difficulties, arrived at Vera Cruz, but 
 was not permitted to land her cargo or to 
 make repairs. She afterwards reached New 
 Orleans, from which place the supercargo in- 
 formed the owners that she would proceed to 
 Havana for a market; and insurers indorsed 
 upon the policy that she might proceed from 
 New Orleans to Havana, thence to New York, 
 for an additional premium of one-half per 
 cent. She did not go to Havana, but landed 
 her cargo, took another for, and arrived in 
 New York. Held, the insurer must return the 
 premium, for the vessel never took a cargo at 
 Vera Cruz ; the indorsement upon the policy 
 was something superadded to it, but did not 
 constitute the contract; in making the in- 
 dorsement both parties made a mistake in 
 point of law. under ignorance of the facts, 
 which could not be used to the prejudice of 
 either. Seriba v. Insurance Co. of North Amer- 
 ica, 2 Wash. C. C, 107. 
 
 4. From St. Andreas, with liberty of two 
 ports on the Spanish Main to Baltimore. The 
 order stated that she was reported sailed from 
 San Bias for St. Andreas. She was Inst on the 
 voyage from San Bias to St. Andreas. Hdd, 
 the insurers were not liable. Maryland Ins. 
 Co. -0. Boasiere, 9 G. & J., 121. 
 
 5. The ship's agents at Cadiz were directed 
 to freight her for the Clyde. She arrived at 
 Cadiz, when it was found inexpedient to com- 
 ply with the instructions. She was put up 
 for Liverpool, and the change of destination 
 reported to her owners, who effected insur- 
 ance from Cadiz to her port of discharge in 
 St. Georges Channel including the Clyde. 
 But circumstances induced her agents to 
 again alter her destination, and the master 
 was ordered to load for Newfoundland, ef 
 which advice was sent to her owners under 
 date February 28, 1810. But before her cargo 
 was all in, she was driven on shore in a storm 
 at Cadiz, and burned by the French. The 
 
 493 
 
987 
 
 POLICY (OF THE). 
 
 When it does not attach. 
 
 judge admiral and the court of session found 
 that there was no evidence that ihe voyage to 
 Britain had been abandoned, but the lord 
 chancellor found that the voyage to Britain 
 ought to be considered as having been aban- 
 doned before the loss of the vessel. Tasker v. 
 Cunningham, 1 Bli., 87. 
 
 6. On cargo at and from Lyme to London. It 
 ■was shipped at Bridport harbor, a member of 
 and about nine miles to the eastward of the 
 port of Lyme and nearer to Loudon. She 
 was captured between Bridport and London. 
 Held, the policy did not attach upon goods 
 laden at Bridport. Constable v. Noble, 2 Taunt., 
 405. 
 
 7. At and from Maryland to Cadiz. She 
 cleared from Maryland to Falmouth, giving a 
 bond to land the goods in Britain, etc., and 
 the owner made affidavit in which he stated 
 she was bound to Falmouth. The bills of 
 lading were to Falmouth and a market. There 
 was no evidence that she was destined to 
 Cadiz, but many circumstances raised the 
 suspicion she was bound to Boston to supply 
 the American army. She was captured at a 
 point in the course from Maryland before she 
 had reached the point to diverge for Fal- 
 mouth. Held, a deviation, merely intended 
 but never carried into effect, is no deviation, 
 but if there was no intention to make the voy- 
 age to Cadiz, the policy did not attach. Wool- 
 dridge «. Boyddl, 1 Doug., 16. 
 
 8. On arrival of ship the goods were put on 
 board a lighter and brought to plaintiffs 
 wharf; but the roughness of the weather pre- 
 vented landing. Insured said that he would 
 look to the lia,ndiug. They were lost in the night. 
 Held, insurers were discharged. Strong v. 
 NataXly, 4 B. & P., 16. 
 
 9. On freight, valued, from Demarara, Ber- 
 bice and the Windward and Leeward Islandfj to 
 London. She agreed for a fi eight from Ber- 
 bice to London, but took a cargo of brick 
 and planks from Demarara to Berbice, be- 
 tween which she suffered damage which pre- 
 vented her from earning any freight. Held, 
 the voyage from Demarara to Berbice had 
 nothing to do with the voyage insured. SeOar 
 «, Ue Vicker, 4 B. & P., 23. 
 
 10. Valued policy upon ship and goods, at and 
 from the coast of Africa to the ship's port of 
 discharge in the United Kingdom, with liberty 
 to touch at all ports and places whatsoever 
 and wheresover - to trade backwards and for- 
 494 
 
 wards In any order; to call at or proceed ti 
 the Azores, Madeira, etc., and all African 
 islands, beginning the adventure on the goods 
 from the loading thereof, twenty-four hours 
 after her arrival on the coast of Africa, in- 
 cluding risk in boats loading and unloading, 
 with liberty to load, unload, sell, barter or 
 exchange with any ships or factories whereso- 
 ever she might call. She was on the coast of 
 Africa for many months, and at the time of 
 the loss, which was total, had on a part of the 
 out cargo, about £800, and part of the home 
 cargo, £4,150. Held, the' question was not. 
 What was the intention of the parties; but 
 what was the meaning of the words used? 
 There was nothing in the policy to pro- 
 tect the out cargo. Hickman v. Caratairs, 5 B. 
 & Ad., 651 ; 3 L. J. (N. S.) K. B., 28; 2 N & M., 
 560. 
 
 11." On ship and outfit, voyage from Syd- 
 ney, New South Wales, to Otaheite, during her 
 stay and back." Insurers were notified she 
 had sailed for Maquarie Island on a fishing 
 and sealing voyage, and was to return to 
 Hobartstown, and insured desired the policy 
 to be corrected accordingly. Insurer's agent 
 inserted, " with leave to call at Maquarie 
 Island and all other parts for South Sea fish- 
 ing and sealing." She sailed from Sydney 
 for a fishing and scaling voyage and went 
 directly to Maquarie Island to deliver suj.- 
 plies to certain men who had been left there 
 on a preceding voyage, and to take in what- 
 ever oil might have been provided by them, 
 and if it was not enough for a cargc, to pro- 
 ceed to the other South Sea Islands. While 
 waiting in one of the harbors off Maquaiiu 
 Island, she was wrecKed in a gale. Sydney 
 was about 1,600 miles from Maquarie Island, 
 and about 2,000 from Otaheite. There was no 
 evidence of an intention to go to Otaheite. 
 Held, before insured could recover, it must 
 appear that a voyage was commenced either 
 to Otaheite direct or via Maquai'ie Island. 
 Lord e. Sobinson, 6 L. J. K. B., 212. 
 
 12. " From St. Michaels or all or any of the 
 Western Islands to England." She arrived at 
 St. Michaels in a very disabled condition, and 
 remained there about twenty-four hours in 
 great danger in a gale. She was blown out to 
 sea and lost. Held, it was necessai'y for her 
 to be once at the place in good safety; that if 
 she arrived there a mere wreck, the policy nev- 
 er attached. Parmetfr «. Cousins, Z Camp., 236. 
 
989 
 
 POLICY (OF THE). 
 
 990 
 
 When it does not attach. 
 
 1 ,1. Ship and freight were insured from a 
 port in the U, K. to a port of discharge in the 
 Baltic, and daring her stay there and at and 
 from thence to her port or ports of discharge 
 in the United Kingdom. There was a second 
 policy at and from Biga, on the ship, £2,000, 
 and on the flreight £1,200 valued, which de- 
 clared that it was in continuation of the two 
 others. Her papers were taken from her at 
 Biga and sent to St. Petersburg, and both 
 .ship and cargo were sequestered, seized and 
 sold at Biga. Held, the safety required to give 
 commencement to the risk taken in the second 
 policy was a physical safety from the perils 
 insured against, and not a freedom from po- 
 litical danger. Sell v. SeU, 2 Camp., 475. 
 
 14. Policy from Gottenburg to Riga, begin- 
 ning the adventure upon the loading thereof. 
 She sailed from London with a cargo, pro- 
 ceeded to Gottenburg, thence to Biga. Jleld, 
 the policy never attached. Homey er v. lM»h- 
 ington, 15 East, 46 ; 3 Camp., 85. 
 
 15. At and from October 20, 1786, from any 
 ports in Kewfoundland to Falmouth, or her 
 ports of discharge in England. On the 1st, 
 she left a port in Newfoundland, went to the 
 banks, fished till the 7th, and sailed that day 
 for England. She was lost in November fol- 
 lowing, on her voyage home. Held, the in- 
 sured could not recover. Wag v. Modigliani, 
 2 Term, 30. 
 
 1 6. On ship and cargo, " At and from all 
 and every port on the coast of Brazil, after 
 September 17th, to the cape of Grood Hope, 
 beginning the adventure on the goods from 
 the loading thereof aboard the said ship at all 
 and every port, etc., on the coast of Brazil 
 from September 17, 1800, and upon the ship in 
 the same manner, with liberty to sail to any 
 places backwards and forwards, under the 
 Portuguese government," etc. Held, the policy 
 did not attach upon any cargo not laden for 
 the homeward bound voyage, nor did it attach 
 on the ship until cargo for the homeward 
 voyage was taken. SoberUon v. French, 4 
 East, 180; 4 Esp., 246. 
 
 1 7. Lost or not lost at and from Ifew York 
 to Quebec during the ship's stay there, for any 
 purpose, and back to Ziterpool, begining the 
 adventure upon said goods and merchandize, 
 from the loading thereof on board the said 
 ship. The ship, goods, and merchandise shall 
 be valued at £1,000 on profit on cargo. The 
 words in italics were written, all the others 
 
 printed. Insurer's agent chartered her while 
 she was on a trip to New York to proceed 
 thence to Quebec, and then to take a cargo of 
 timber for the plaintiff to Liverpool, for which 
 cargo plaintiff had contracted. She proceed- 
 ed from New York for the purpose of taking 
 the cargo, but was lost on the voyage. The 
 cargo could not be shipped during the ship- 
 ping season in consequence of her failure to ar- 
 rive. Held, that the policy never attached be- 
 cause there was never any cargo laden. Hal- 
 head V. Toung, 6 El. & Bl., 312; s. c, 2 Jur., 
 (N. S.), 970; 25 L. J. Q. B., 290. 
 
 1 8. On cargo valued, " With liberty to in- 
 crease the value, on the homeward voyage 
 from the loading thereof, including risk of 
 craft and to endure until discharged and safe- 
 ly landed, with liberty to load, reload, ex- 
 change, sell or barter, all or either goods or 
 property on the coast of Africa and African 
 Islands, and with any vessels, boats, factories, 
 canoes; and to transfer interest from the ves- 
 sel to any other vessel, or from any other ves- 
 sel to this vessel, in port or at sea, and in any 
 porta or places she may call at or proceed to, 
 without being deemed a deviation." She 
 landed a part of her cargo at a factory for the 
 purpose of barter, and was lying at anchor, 
 taking produce from the factory, when it took 
 fire and was consumed with its contents. 
 Held, the property which was intended for her 
 but which was in the factory was not covered 
 by the policy. Harrison v. Ellis, 7 El. & Bl., 
 465; s. c, 3 Jur. (N. S.), 908; 26 L. J. Q. B., 
 239. 
 
 19. Plaintiffs underwrote a policy, " On 
 chartered freight, guano, from Baker's Island, 
 while there, and thence to a port in England." 
 They procured reinsurance, lost or not lost, 
 upon freight from Baker's Island to a port of 
 call or discharge in the U. K. Beginning 
 the adventure from the loading of said vessel, 
 and terminating when she shall be moored as 
 above at a safe anchorage, to pay as may be 
 paid on original policy. She had taken in 
 two-thirds of a cargo, the balance was ready 
 when she was wrecked. Held, the reinsurers 
 were not responsible for any loss before the 
 vessel was completely loaded. Jones fl. Nep- 
 tune Marine Ins. Co., 7 L. B. Q. B., 703 ; 41 L. 
 J. Q. B., 370; 27 L. T. (N. S.), 308. 
 
 20. Insured represented the building in his 
 application as furnished with a brick chim- 
 ney, which was untrue. Held, the policy 
 
 495 
 
991 
 
 POLICY (OF THE). 
 
 992 
 
 Whose interests are covered. 
 
 never attached, but he was entitled to renover 
 tlie premium. Scott v. Niagara District ~Mut. 
 Im. Co., 25 U. C. Q. B., 110. 
 
 lY. Whose interests aee coveeed. 
 
 1. Persons not named in jwlicy. " To H. 
 
 C. & Co., on account of A. B. & Co., 
 on property consigiied to H. C. & Co. by 
 regular invoice and bill of lading. Risks 
 applicable' hereto to be reported to this 
 company for indorsement on the policy, 
 as soon as known to insured." Gold was 
 shipped byL. S. & Co., by bill of lading in 
 their name. The invoice was by U. B. of 
 San Francisco, addressed to U. B. & Co. at N"ew 
 York, the heading of which was, " Shipped 
 by A. B. & Co., to be delivered to H. C. & Co." 
 They called the attention of insurer's presi- 
 dent to the bill of lading and invoice. He 
 said it made no difference, and directed the 
 insured to an entry clerk who made the in- 
 dorsement, and the premium was afterwards 
 paid. Held, the consignment and bill of lad- 
 ing were nominally to U. B., but really to the 
 insured ; that the acts and words of the com- 
 pany's president were properly received, to 
 show how the defendants led insured to 
 construe or understand the contract. Block 
 v. Columbian Im. Co., 42 N. Y. (3 Hand), 393 ; 
 B. c, 3 Rob., 296. 
 
 2. — On machinery. "Loss, if any, paya- 
 ble to B." It expired January 9, 1863. B. 
 had delivered the property to S. & Sons, for 
 them to keep it insured to secure the payment 
 of the balance of purchase money, but it was 
 to be considered his property until paid for. 
 After the policy expired, defendant's agent 
 inquired of the plaintiff (the agent of B.), how 
 much of the purchase money was then un- 
 paid, and on being informed that the amount 
 was |1,000, he asked if he would pay the pre- 
 mium to insure it. Plaintiff agreed to do so, 
 and the policy was renewed for that amount 
 in the name of B. The plaintiff held a mort- 
 gage on the property insured, and had fore- 
 closed it before the fire occurred, of wliich B. 
 had not any notice. Held, the renewal of the 
 policy was a contract with B., and that his in- 
 terest in it for the unpaid purchase money 
 was sufficient to maintain the action. Tall- 
 tnan <o. Atlantic Fire and Marine Ins. Co., 42 
 N. Y. (3 Keyes), 87 ; s. c, 4 Abb. Dec, 345 ; re- 
 versing s. c, 29 How. Pr. 71. 
 
 496 
 
 3. Sold but not removed. "On refined 
 carbon oil, their own, or held by them in 
 trust, or on commission, or sold but not re- 
 moved." A portion of the property was sub- 
 sequently sold, but not removed at the time of 
 the fire. The purchasers had not made any 
 insurance on it. Held, "sold, but not re- 
 moved," was intended to cover that which 
 had been sold and of which a legal, binding 
 delivery had been made; the ownership and 
 right of control of which had passed, but 
 which had not been in fact removed ; that it 
 was different from the phrase, " sold, but not 
 delivered," which applies to property sold, 
 but of which the ownership has not been 
 changed by a delivery in pursuance of the 
 contract. Waring v. Indemnity Fire Ins. Co., 
 45 N. Y., 606. 
 
 4. — The plaintiff stated in his preliminarj' 
 proofs of loss, that the fii-m of Irving, Clark 
 & Co.. of which he was the principal mem- 
 ber, manufactured the goods insured ; that he 
 had furnished all the capital to the firm, was 
 its sole creditor, and that his interest in it 
 would cover all the assets of the firm. It ap- 
 peared that Clark and the plaintiff had aban- 
 doned all intention of a copartnership, and 
 that Clark was to be paid for his services. 
 Held, the facts as stated in the preliminary 
 proofs were conclusive; that if the evidence 
 of Clark and the plaintiff did not harmonize 
 with the statements in the preliminary proofs, 
 it must be rejected; but that the plaintiff was 
 the substantial owner of the property insured ; 
 hence the policy was effectual, though made 
 to the plaintiff individually. Irving v. Excel- 
 sior Ins. Co., 1 Bos., 507. 
 
 5. Death of insnred. The original policy 
 was issued to plaintiff*s testator. After his 
 death, it was renewed from year to year to the 
 plaintiff and her coexecutor. He died before 
 the last renewal, and subsequently the execu- 
 trix conveyed the property, but took a mort- 
 gage back to secure part of the purchase 
 money. The policy prohibited any transfer 
 or termination of the interest of the insured 
 " in this policy, either by sale or otherwise." 
 Held, the death of the testator did not termi- 
 nate the contract; that the transfer of the 
 property and taking back the mortgage was 
 no breach of the condition ; hence insurers 
 were liable. Phelps v. Oebha/rd Fire Ins. Co., 
 9 Bos., 404. 
 
 6. Property not owned by insured. Policy 
 
993 
 
 POLICY (OF TEE). 
 
 994 
 
 Whose interests ace not covered. 
 
 to N., on wool owned jointly by him aad G. 
 Within two weeks after it was received, N. 
 retumod it to the agent, informed him that it 
 was designed to include the interest of G. 
 The agent inserted : " In case of loss, if any, 
 one-half payable to G., as his interest may 
 appear." N. had other insurance on his own 
 property, which was not consented to by the 
 defendant, contrary to the printed terms of the 
 contract. Held, under the evidence disclosed, 
 the court was bound to construe it as an in- 
 surance upon the joint property of N. & G., 
 because it was clearly the intention of both 
 parties to regard it as such (citing Solmes v. 
 Butgers Fire Ins. Co., 42 N. T. (3 Keyes), 416). 
 Pitney c. Olens Falls Im. Co., 61 Barb., 335. 
 
 7. — " On freight cars owned or used by the 
 company." Insured had in their possession 
 and use two freight cars, the property of an- 
 other company. Held, insured had an insura- 
 ble interest in them, to the extent of their 
 value, and was entitled to recover for the loss 
 (citing Vermont & M. R. R. Co. v. Fitchburg 
 R R. Co., 14 Allen, 462; Eastern R. R Go. « 
 Relief Fire Ins. Co., 98 Mass., 420). Gommon- 
 toeaUh V. Hide and Leather Ins. Co., 112 Mass., 
 136. 
 
 8. — Groods owned by two jointly, insured 
 in the name of one. Insurer's agent stated to 
 insured it would make no difference to insure 
 in the name of one or both parties ; and there- 
 upon the policy was made in the name of one. 
 Held, the policy covered the interest of both, 
 and the action could be maintained in the 
 name of the one insured for the whole amount 
 of the loss. Manhattan Ins. Co. o. W Aster, 59 
 Penn. St., 227. 
 
 9. — On stock in trade on consignment, or 
 held in trust Held, it covered goods bought 
 on joint account, with a person not named in 
 the policy, to be sold for their mutual profit. 
 MiUaudonv. Atlantic Ins. Co., 8 La. (O. S.), 558. 
 
 10. — G., a part owner, mortgaged his inter- 
 est in the ship to D. & A., the defendants. They 
 insured to the full amount of their mortgage, 
 valuing her at the same, and debiting G. with 
 the premium. Subsequently G. wrote, direct- 
 ing defendants to insure a further sum of 
 £1,300, which was made upon the ship gen- 
 erally, and not upon any particular shares or 
 interest Subsequently Tie directed them to 
 procure further insurance of JE3,000 upon her 
 from Liverpool to Maranham ; and again he 
 directed them to add £600 for the same voy- 
 
 32 
 
 age, and thereafter he directed a further insur- 
 ance of £500 upon her freight, valued at £1,000. 
 She was totally lost on the voyage between 
 Maranham and Liverpool, December 6, 1827. 
 In March, 1828, G. became bankrupt, and 
 plaintiff, a part owner, brought this action to 
 recover his portion of the insurance. Held, 
 it was for the jury to say whether, at the time 
 defendants made the insurance, they knew 
 that the policies were to cover the interests of 
 persons other than G. If that was the fact, 
 the plaintiff was entitled to recover. Braik v. 
 Douglas, 4 Myl. & Cr., 320. 
 
 1 1 . Carriers. " On goods their own and in 
 trust as carriers." Stipulated : " Goods held 
 in trust or on commission are to be insured 
 as such, otherwise the policy shall not extend 
 to cover such property." Held, it covered the 
 whole value of goods in the warehouse in 
 plaintiff's possession as carriers, and was not 
 limited to their interest as carriers, notwith- 
 standing the insured were not liable to the 
 owners of the goods for the loss of them, be- 
 cause insurers received the premium upon the 
 full value. London & Northwestern Railway 
 Co. V. aiyn, 1 El. & El., 652 ; s. c, 5 Jur. (N. S.), 
 1004 ; 28 L. J. Q. B., 188. 
 
 V. "Whose nrrEEEsxs aee not coveeed. 
 
 1. Where the policy is made in the name 
 of an agent to insure another named. HeUd, 
 none but the person named can prove an in- 
 surable interest; a stranger to it cannot Bus- 
 sel V. New England Marine Ins. Co., 4 Mass., 
 82 ; Graves v. Boston Marine Ins. Co., 2 Cranch, 
 215. 
 
 2. R., a citizen of the U. S., resident in Phil- 
 adelphia, made insurance on specie from Cape 
 St. Francois to Philadelphia, " Warranted neu- 
 tral property." A loss happened, and insurers 
 paid R. in full, but he discovered that only 
 $1,152 were his property, and returned the bal- 
 ance to his insurers. The plaintiff brought this 
 suit to recover the money so returned, alleg- 
 ing that the policy was intended to cover their 
 interest Held, they could not recover. Baii- 
 duy V. Union Ins. Co., 2 Wash. C. C, 391. 
 
 3. M. purchased a cargo, and L. was inter- 
 ested in it one-third, with which he was charg- 
 ed by M. The invoice and bill of lading were 
 made in their joint names, and L. directed his 
 correspondent to place the proceeds to the 
 credit of M. Held, in the absence of an in- 
 
 497 
 
995 
 
 POLICY (OF THE). 
 
 996 
 
 Whose interests are not covered. 
 
 tention, proved, to cover the interest of any 
 person, other than M., his recovery must be 
 limited to his own interest, two-thirds. Mur- 
 ray V. Columbian Ins. Co., 11 Johns., 302. 
 
 4. Policy to A, to cover the interests of A. 
 & B. in an adventure, the whole venture being 
 owned by three. Held, the interests of A. & 
 B. were covered, hut not the interest of the 
 third, notwithstanding, by the terms of the 
 policy, his interest would seem covered. Pa- 
 cific In$. Co., v. Catlett, 4 Wend., 75 ; affirming 
 8. c, 1 id., 561. 
 
 5. A part owner effected insurance, intend- 
 ing it to be for his own and for account of an- 
 other, but the policy read: " For account of 
 whom it may concern, or for account of the 
 owners." Held, any person interested in the 
 vessel, might claim the benefits of the policy; 
 but where the policy contains no words im- 
 porting any interest in any person, other 
 than the insured, none but the insured shall 
 be allowed to claim the benefits of it. 
 Turner v. Burrows, 5 Wend., 541 ; affirmed, 8 
 id., 144. 
 
 6. Where the policy is made to one person 
 without any words, such as, " for the benefit of 
 whom it may concern," or, " as the property 
 may appear," it is for the sole benefit of that 
 one person. BurgTier v. Columbian Ins. Co., 
 17 Barb., 274. 
 
 7. Policy made to A. None of his own 
 goods were on the ship, but others were con- 
 signed to him, of which he had no notice nor 
 intention to insure. Held, they were not with- 
 in the policy. Toppan v. Atkinson, 3 Mass., 
 365. 
 
 8. No representation was made to the in- 
 surer, that any other person was interested 
 with insured in the subject, and the contract 
 was made with him upon his sole account. 
 Held, he could not recover beyond the value 
 of his own interest. If the insured acts for 
 others, he must make known the relation in 
 which he stands. Dumas v. Jones, 4 Mass., 
 647. 
 
 9. Policy made by a master, who is also 
 part owner, "on property on board, for the 
 owners of the vessel." Held, it covered his 
 own interest, joint and separate, but not the 
 interest of the other owners. Foster v. United 
 States Ins. Co., 11 Pick., 85. 
 
 10. Part owner of ship may insure his in- 
 terest without stating its nature or extent ; and 
 if he holds as administrator, he may insure 
 
 without stating the capacity in which he 
 holds, but he cannot recover for the interest 
 of another person. Finney v. Warren Ins. 
 Co., 1 Met., 16. 
 
 11. J. & J. insured $1,100 on 170 tons coal, 
 and $2,700, on the freight of the same at and 
 from New York to San Trancisco, payable to 
 them for account of whom it concerns. Stip- 
 ulated: "To be void if assigned, transferred 
 or pledged without insurer's consent in writ- 
 ing." P. & C. were the owners of the coal, 
 and had prepaid the freight. The insurance 
 was made at their instance, for their benefit, 
 and they paid the premiums. They sold all 
 their interest in the adventure to M., the 
 plaintiff. J. & J. indorsed the policy to P., 
 he indorsed it to the pjaintff; to all of which 
 insurers assented. The property was lost. 
 Held, the indorsements were mere orders, and 
 transferred nothing but what might be recov- 
 ered on the interest of the party originally 
 insured ; as the persons for whose benefit the 
 policy was obtained had sold all their interest 
 in the subject insured, to which the insurer 
 had not assented, no recovery could be had 
 upon the policy. Minturn v. Manufacturers 
 Ins. Co., 10 Gray, 501. 
 
 12. "On his five-eighth catchings of the 
 good whaling ship called the Contest. As 
 fast as oil, bone and other articles of cargo 
 are procured, this insurance is to attach on 
 the shipowner's interest therein exclusively, 
 about two-thirds of which is to apply to this 
 policy, the crew's share (about one-third) not 
 being covered by this insurance." Held, the 
 policy must be applied to a definite and fixed 
 proportion of the catchings according to the 
 ratio of the lays agreed on by the shipping 
 articles, and this ratio of interest continued 
 until the close of the voj'age, whatever may 
 be the state of the accounts with the crew. 
 Swift V. Mercantile Mut. Ins. Co., 113 Mass., 
 287. 
 
 13. Policy to W. & J., copartners in trade. 
 After the death of J., W. continued to pur- 
 chase and add to the stock, which was con- 
 sumed within the term insured. Held, W., as 
 surviving copartner, could recover for the 
 goods which were the property of W. & J. ; 
 but as to goods purchased after the death ol 
 J., priTna fade, the -policy did not include 
 them. Wood v. Rutland Mutual Fire Ins. Co., 
 31 Vt., .552. 
 
 14. G. and H. were equal owners; and H., 
 
997 
 
 POLICY (OF THE). 
 
 998 
 
 Whose interests aie not covered. 
 
 insured lier for $1,500, valued at $2,500. Held, 
 tlje policy did not cover the interest of G. ; 
 that H. was not liable to G. for any part of the 
 money received from the insurers. OarreU v. 
 Hanna, 5 H. & J., 412. 
 
 15. Where it does not appear npon the face 
 of the instrument for whom or whose benefit 
 the contract was made, extrinsic evidence is 
 admissible for the purpose of ascertaining 
 who was in fact concerned. IfewMn v. Doug- 
 lass, 7 H. & J., 417. And if it appears that the 
 contract was made for the benefit of a person 
 without previous communication with him on 
 the subject, his adoption of it afterwards will 
 cause it to enure for his benefit. Ibid. But 
 no one can by subsequent adoption avail him- 
 self of a policy, who was not, at the time, in 
 the contemplation of the party procuring it, 
 though he had an interest in the thing in- 
 sured. Ibid. 
 
 16. Policy to insure "D., president of the 
 N. O. & C. R. K. Ce., and for the J. & L. P. 
 R. R. Co., against loss or damage by fire on 
 merchandise, being such as may be placed in 
 the depots hereinafter named for conveyance 
 to and from the city to Lake Pontchartrain. 
 The risk in the cars is also to be covered by 
 this insurance." Stipulated: "Goods held in 
 trust or on commission shall be declared as 
 such, otherwise this policy shall not cover 
 such property." Held, insurers were not 
 bound to do anything more than indemnify 
 the railroad company against the loss or dam- 
 age it had sustained from the destruction or 
 deterioration of such merchandise by fire ; and 
 as there was no evidence that the railroad 
 company was owner of any of the goods de- 
 stroyed, it was necessary to prove some loss or 
 liability of the railroad company by fire, be- 
 fore any recovery could be allowed. Duncan 
 V. Sun Mut. Ins. Co., 12 La. An., 486. 
 
 17. E. & F. were owners of a steamboat, 
 upon which they held the defendant's policy. 
 They sold her to A., B., C. & D., and assigned 
 the policy to them, to which insurers assented. 
 D. afterwards sold his interest in the boat to 
 his co-owners A., B. & C, but did not assign 
 his interest in the policy to them. EeM, D.'s 
 interest in the policy did not pass by the 
 sale to A, B. & C, unless insurers assented 
 to it Walker o. Firemen's Ins. Co., 2 Handy, 
 256. 
 
 18. Policy to Ht who was then a copartner 
 
 with B. They were joint owners of a stock 
 of goods which insurers' agent solicited H. to 
 insure. H. said to the agent he did not think 
 he had a right to insure B.'s share, to which 
 the agent replied, he had a right to insure the 
 whole, hence" the policy was made in the 
 name of H. only. Hdd, it covered the undi- 
 vided interest of H. and no more, because 
 there was no evidence tending to show an in- 
 tention to make the policy for the benefit of 
 the firm. Peoria Marine and Fire Ins. Co. v. 
 Sail, 12 Mich., 202. 
 
 19. There was a policy of insurance upon 
 the cargo, at and from Galatz, or any other 
 place or places on the Danube, to Emden, and 
 any other place or places on the continent, be- 
 tween Havre and Hamburg, at and from 
 thence to port or ports of discharge in the TJ. 
 K., with leave to call for orders, and to natur- 
 alize the cargo as per printed agreement an- 
 nexed, to return twenty shillings per cent, if 
 the risk shall end at the port of naturalization. 
 The shippers (the insured) sold the cargo free 
 on board at Galatz, including freight and in- 
 surance to Emden. The loss occurred after 
 she reached Emden. Held, the purchasers 
 could not maintain an action upon the pol- 
 icy, lonides v. Hartford, 5 H. & N., 944 ; 29 L. 
 J. Ex., 36. 
 
 20. Policy to A. on a cargo of linseed from 
 Constantinople to port of call and discharge in 
 the U. K., risk of craft or lighters to and from 
 the brig. Bill of lading was made to A. or as- 
 signs; he sold the cargo to be delivered at port 
 of destination in sound, merchantable condi- 
 tion, payment to be made fourteen days after 
 ready for delivery ; and A. indorsed the bill of 
 lading to the plaintiff. She arrived at port of 
 destination, and part of the cargo was put into 
 public lighters, one of which sank at the 
 wharf The purchaser had not paid for it at 
 the time. Insured subsequently transferred 
 the policy to the purchaser. Held, the pur- 
 chaser could not recover upon the policy be- 
 cause at the time of the sale, there was no 
 agreement it should carry the insurance, 
 nor could any intention to do so be inferred, 
 because A. had the right to retain the policy 
 for his own protection until the right delivery 
 of the cargo ; that the sale divested A. of all 
 interest, and the policy was then determined. 
 North of England Oil Cake Co. v. Archangd 
 Maritime Ins. Co., 10 L. R. Q. B., 249. 
 
 499 
 
999 
 
 POLICY (OF THE). 
 
 1000 
 
 What places are within the descnption. 
 
 YI. What places aee within the de- 
 
 SOKIPTION. 
 
 1. A policy upon timber in a ship yard, 
 limited to certain boundaries. Held, evidence 
 ■was admissible to prove whether the parties 
 meant that the insurance should be limited to 
 8 yard bounded by lines exactly defined and 
 limited by streets, or to a yard as it was in 
 fact used by the insured in conducting their 
 business ; and for tliat purpose it was compe- 
 tent to prove that it was usual for the owners 
 of ship yards in New York to keep their stock 
 of timber on the sidewalks and in the streets 
 in the vicinity of their yards, as well as in 
 them. Webb v. National Ins. Go., 3 Handf , 497. 
 
 8. The plaintiffs, as trustees of a railroad, 
 made insurance " On any property belonging 
 to the said Trust Company as trustees and 
 lessees as aforesaid, for which they may be 
 liable ; it matters not of what the property may 
 consist or where it may be, provided it is on 
 premises owned or occupied by said trustees, 
 and situate on their railroad premises in the 
 city of Racine, Wis." The railroad company 
 had purchased, and the plaintiff's as mort- 
 gagees and trustees owned, certain wharf 
 property fronting on Root river. ' The cars 
 came to the river, and the wharf was used 
 for the transferring of freight between boats 
 and cars. Plaintiffs owned a dredgeboat, to 
 keep the water a sufficient depth in front of 
 the wharf; and while made fast to the wharf, it 
 was consumed by fli'e. Held, the boat was in 
 plaintiffs possession annexed to the raih'oad 
 premises, and was therefore upon the property 
 of the plaintiffs within the meaning of the 
 policy. Farmers Loan and Trust Co. ■». Sar- 
 many Fire and Ma/rine Ins. Co., 51 Barb., 83; 
 S. c, affirmed, 41 N. Y. (3 Hand), 619. 
 
 3. " On their road furniture, consisting of 
 locomotive engines and cars of all descrip- 
 tions and snow plows on the line of their road 
 and in actual use ; but not on machine or re- 
 pair shops." The owners of a wharf in 
 Gharlestown laid a track, the whole length of 
 the wharf, which connected the Gharlestown 
 Branch Railroad with the Fitchburg Railroad 
 fnr the purpose of conveniently shipping and 
 receiving ice. The cars for which this action 
 was brought were drawn over the Fitchburg 
 and Gharlestown Branch Railroads and left 
 one night on the track at the extreme end of 
 the wharf, four hundred and forty feet from 
 500 
 
 the line of the Gharlestown Branch, near a 
 shed used by the occupants of the wharf to 
 store shavings and sawdust A Arc origi- 
 nated in the shed and consumed the cars. 
 Held, the court must look at the nature of the 
 property insured as well as the words of the 
 contract, to ascertain the intention of the par- 
 ties ; that if at the time of the loss the cars 
 were upon a track, which, by adoption and 
 for all practical purposes, had become a part 
 of the line, they were within the policy. 
 Fitchburg Railroad v. Gharlestown Mutual 
 Fire Ins. Go., 7 Gray, 64. 
 
 4. On goods in brick building situate on 
 Main street, known as D. & Co.'s car factory. 
 Held, it included goods in a building, a wing 
 of D. & Go.'s car factory, although the open- 
 ing from the main building into the wing was 
 less than three feet square and usually closed 
 by an iron door, provided the wing was used 
 for manufacturing cars, and was known as a 
 part of the factory. Blake v. Exchange Mut. 
 Ins. Go., 13 Gray, 365. 
 
 5. " On goods contained in the third story 
 of building, eighteen and nineteen Harvard 
 Place, Boston. To be voia, it said property 
 shall be removed without necessity." They 
 were removed into other rooms in the same 
 story. Held, no defense to tho action. West 
 V. Old Golony Ins. Go., 9 Allen, 316. 
 
 6. " On stock of dry goods and other mer- 
 chandise, contained in the frame building, 
 known as Hunt building, situate on Main 
 street, as per plan filed." The plan filed ex- 
 hibited a building divided into three stores. 
 Insured then occupied the west store, the 
 others being occupied by other persons. Sub- 
 sequently tlie partitions on the main floor 
 were removed between the west and middle 
 store, and doors were made opening into the 
 east store. At the time of the fire insured had 
 goods in the whole of the main floor. Held, 
 the words of the policy did not restrict in- 
 sured to a particular part of the building. 
 Reference to the plan must be regarded as 
 identifying the building. Hence insured was 
 entitled to recover for all the goods. Fair v. 
 Manhattan Ins. Go., 113 Mass., 320. 
 
 7. On property, situated in the rear of 83 
 and 84 Eddy street. Held, it covered all prop- 
 erty of the kind described, wherever it might 
 be on the premises, and was not limited to 
 property in the furnace building mentioned in 
 a preceding application, to which this appli- 
 
1001 
 
 POLICY (OF THE). 
 
 1002 
 
 What places are within the description. 
 
 cation referred. Eddy Street Foundry «. Farm- 
 ers Mutual Fire Ins. Co., 5 R. I., 426. 
 
 8. " On machinery, consisting of cards, 
 mules, pickers, shafting and belting, and fix- 
 tures used for manufacturing carpet yarn, on 
 the first story of a four story and basement 
 building, situate," etc. The pickers were not 
 in the first story of the building when the pol- 
 icy was issued, nor when they were burned, 
 but were in the picker house, a one story ex- 
 tension. Reld, the primary object of tlie pol- 
 icy was to insure the property described. Its 
 precise location was a subordinate matter, 
 which the parties might regard and treat as of 
 less importance; that though 4he picker house 
 was only one story, it was still a part of the 
 building. Meadowcraft s. Standard Ins. Co., 
 61 Penn. St., 91. 
 
 9. Oa cargo, on canal boat Ben. Franklin, 
 against perils of the seas, rivers, fires, jettisons, 
 enemies, pirates, restraints, etc., at and from 
 Cincinnati ma canal to Covington, Indiana. 
 Held, the words " seas" and " rivers " included 
 the perils of navigation on the canal. Protec- 
 tion Ins. Co. -D. Wilson, 6 Ohio St., 553. 
 
 10. $300 on his granary and his wagon 
 house, $800 on his grain therein, or in stack. 
 When the policy was issued, he owned and 
 occupied a farm in the town of Chester, sec- 
 tions 17, 19 and 20, being an entire tract of 880 
 acres. A few months later he purchased an 
 additional twenty acres in section 17, but not 
 adjoining his other land, upon which he raised 
 and stacked wheat, which was subsequently 
 burned on that twenty acres. Held, a loss 
 within the policy. Sawyer v. Dodge County 
 Mut. Ins. Co., 37 Wis., 503. 
 
 1 1. Policy on two houses. Hdd, it included 
 back buildings on the same lot, although sep- 
 arated from the main buildings. Workman v. 
 Louisiana Ins. Co., 2 La. (O. 8.), 507. 
 
 12. On household furniture in dwelling 
 house. Held, it covered furniture stored in 
 the garret. Clark v. Fireman's Ins. Co., 18 La. 
 (O. S.), 431. 
 
 13. The property was described as follows: 
 "On his dwelling house, $400; grain in the 
 stack or crib, $600; hay in stack, $320; seven 
 horses, $750; cattle, $275, situated in section 
 23, town 99, range 7, west. All increase of 
 risk was prohibited. While insured was haul- 
 ing his grain to market he stopped at a hotel 
 for the night, and put his team in the hotel 
 barn, which was consumed by fire during the 
 
 night, and one of the horses burned. The 
 danger of fire was greater in the hotel barn 
 than it was on the farm. Held, the contract 
 did not limit the use of the property to secticiu 
 22; that the language was intended to describe 
 the location, and not to limit the use of the 
 horses to the section of land therein mentioned, 
 and that to restrict the use of the horses to the 
 section named, was not within the intention 
 of the parties, and the insurer was therefore 
 liable for the loss. Peterson v. Mississippi 
 Valley Ins. Co., 24 Iowa, 494. 
 
 14. When the policy covers live stock, the 
 insurer will be liable for a horse killed at a 
 place not upon the premises specified, if it was 
 being used in the ordinary course of business, 
 and the fact that the horse wtvs bought after 
 the policy was issued is immaterial. Mills 
 «. Farmers Ins. Co., 37 Iowa, 400. 
 • 15. " JFrom London to any ports and places 
 beyond the Cape of Gooa Hope and back to 
 London." She arrived at Canton, where her 
 sails, yards, tackle, rigging, and other furni- 
 ture, were by the captain's order taken out and 
 put into a store house on a sand bank or small 
 island, to be repaired and kept dry. It was 
 the custom for all European ships, except 
 Dutch (whicli had for some years been 
 denied the privilege), to have done as was 
 done with this ship's sails, yards, tackle, etc. 
 A loss by fire happened on the island to the 
 propertjf deposited. Held, it was a loss with- 
 in the meaning and intent of the contract. 
 Pelly v. Royal Exchange Ass. Co., 1 Burr., 
 341. 
 
 16. On ship one month in Portsmouth 
 harbor, securely moored. She was afterwards 
 removed to Beechyhead, and her bottom 
 cleaned. She was put into dock at Mark's 
 wharf and safely moored, where she was acci- 
 dentally consumed by fire. Held, a loss with- 
 in the policy. V. TFe«toor«, 6 Esp., 109. > 
 
 17. On goods to Jamaica. They were des- 
 tined to Plantain Garden, River Bay, in 
 Jamaica. The Bay was not safe for vessels of 
 her draught; and it was usual for such to dis- 
 charge their cargoes into shallops, which was 
 done, and a part of which was lost Held, the 
 policy covered the goods till they were land- 
 ed. The insurer is presumed to know the 
 usual course of the voyage. If he does not 
 know it, he should inquire. StewaH v. Bell, 
 5 B. & A., 238. 
 
 18. On goods, specie, and effects, from Lon- 
 
 501 
 
1003 
 
 POLICY (OP THE). 
 
 1004 
 
 Wbat places axe not within the description. 
 
 don to Madras and China with liberty to touch, 
 stay and ti-ade at any ports until she shall ar- 
 rive at her last loading port in the East Indies 
 or China. Held, under the usage of the East 
 India or China trade the policy covered an 
 intermediate voyage from Madras to Bengal. 
 Qregory v. (7Arj«<}e, 3 Doug., 410 ; Preston v. 
 Oreenwood, 4 id., 28. 
 
 19. On cargo from the Clyde to St. Kitts. 
 The master received information that the 
 island was in the possession of the enemy, and 
 that by the terms of capitulation the property 
 of insured was not liable to seizure, but that 
 as to the property on board, as well as the ves- 
 sel, they would on arrival be subject to imme- 
 diate seizure. He put the cargo in warehouse 
 at Antigua, intending to send them to St. Kilts, 
 where it was consumed by fire. Held, the loss 
 was within the policy. Dunlop v. Allen, Fac- 
 ulty Dec, 1781 to 1787, p. 371. 
 
 VII. What PLACES ABB NOT WITHIN THE 
 DESCKIPTION. 
 
 1. Policy to H. & S. Application made a 
 part of the policy. It stated that the property 
 to be insured was in the building in the rear 
 of 82 Eddy street, used as a furnace house. 
 The property insured was destroyed in a store- 
 house, which could not be properly described 
 as being in the rear of 82 Eddy street, but as in 
 the rear of 83 and 84 of that street. Held, the 
 application was a part of the contract, and the 
 insured could not recover, because the prop- 
 erty insured was not destroyed at the place 
 described in the application. Bddy Street 
 ■Foundry «. Gamden Stock & Mid. Ins. Co., 1 
 Cliflf., 300. 
 
 ' 2. On all shipments made to them at and 
 from any ports and places, to and from St. 
 Louis, on good steamboats, canal boats, and 
 steam and sail vessels, and also by railroad, to 
 be reported to the company for indorsement 
 on the policy, as soon as known, also to cover 
 all shipments made by the insured, or to their 
 address at St. Louis from the upper Missis- 
 sippi, Illinois or Missouri rivers. Held, St. 
 Louis was one of the termini of all risks em- 
 braced ; it did not include property shipped 
 in the name of other parties from a place on 
 the Mississippi river to Cairo, although the 
 persons to whom the policy was issued were 
 interested in that shipment ; if the shipment to 
 Cairo was insured, the rights of the insured in 
 S02 
 
 respect to it must arise upon a modification of 
 the written instrument, by a subsequent valid 
 parol agreement, which would be a new con- 
 tract, resting in parol, and which might refer 
 for part of its terms to another contract in 
 writing. Hening v. United States Ins. Co., 2 
 Dil. Cir. Ct, 26. 
 
 3. On goods, " in the store part." They 
 were removed into the second and third sto- 
 ries, which was not the store part. Held, in- 
 surer was not liable. Boynton v. Clinton and 
 Essex Mut. Ins. Co., 16 Barb., 254. 
 
 4. On merchandise in a new frame barn, 
 wagon and wareroom, situate on the corner 
 of Tom and Sugar alley, front on Tom alley, 
 52 X .SO feet, back part on Sugar alley, 20 x 20 
 feet. Insured took down a portion of the barn 
 and erected a brick extension, 32x111 feet, 
 reaching through the lot to Tom alley, cover- 
 ing 30 X 22 feet of the ground upon which the 
 barn had stood. There was an additional 
 premium settled for carpenter's risk, and a 
 premium note given, at the foot of which 
 were the words, " Additional risk in extend- 
 ing to store room." Held, no evidence of con- 
 sent to demolish any part of the frame build- 
 ing insured, nor of any agreement to insure 
 goods in the extension of the store room, nor 
 in the new building, hence, insured could not 
 recover for goods lost in the new brick build- 
 ing nor in the extension of the store room. 
 I/yeoming County Ins. Co. v. Updegrccff, 40 
 ,Penn. St., 311. 
 
 5. Provided all the property hereby insured 
 is on premises owned or occupied by the in- 
 sured, it matters not whether the property is 
 in motion on the road, at rest, or in buildings." 
 At the date of the policy, insured used a por- 
 tion of a wharf in Providence, the rails, etc., 
 being the property of the persons who then 
 occupied the same, and for the use of which 
 insured paid the owners, as other persons had 
 done, and were doing. After the making of 
 the policy, insured leased a portion of the 
 wharf and purchased the rails, coal bins, der- 
 ricks, and other property on said wharf, and 
 used them in the transaction of their business. 
 Held, the policy did not cover a loss which 
 ocdurred upon premises not used or occupied 
 by the insured at the time the policy was 
 made. Providetiee and Worcester B. B. v. 
 Tonkers Ins. Co., 10 R. I., 74. 
 
 6. $3,350 on two Murphy & Allison pas- 
 senger cars, say $1,135 on each, one being 
 
1005 
 
 POLICY (OF THE). 
 
 1006 
 
 What property is -within the description. 
 
 used as a baggage and passenger car, con- 
 tained in car house marked No. 1 ; and $3,000 
 on locomotive engine J. H. Nicholson, con- 
 tained in engine house marked No. 2. While 
 on a regular ti-ip on the road of insured, one 
 of the cars was entirely destroyed and the en- 
 gine greatly damaged. Held, insurers were 
 not liable for a loss occurring upon the road. 
 Annapolis Railroad c. Baltimore Fire Ins. Go., 
 33 Md., 37 
 
 7. On chair lumber contained in the two 
 story frame building occupied by the insured 
 as a chair manufactory, situated on the north 
 side of Superior street. Held, it did not in- 
 clude chair lumber in the engine house, 
 though connected by a platform with the 
 building described. Liebenatein. c. ^tna Ins. 
 Co., 45 111., 308. 
 
 8. On ship at and from St Vincent, Barba- 
 dos, and all or any of the West India islands, 
 to her port or ports of discharge and loading 
 in the United Kingdom, during her stay there, 
 and thence back to Barbados, and all or any 
 of the West India colonies, until she shall 
 have arrived at her final port as aforesaid. 
 She took an assorted cargo, part of which was 
 50 tons of coal and 15,000 common bricks, at 
 Liverpool, both of which were between a sev- 
 enteenth and an eighteenth value of the whole 
 cargo, and in weight about 80 tons, her bur- 
 then being 200 tons. All of the cargo, except 
 the coal and bricks, was discharged; 330 
 empty puncheons were put on board, and she 
 was ready to sail for Berbice, when the hurri- 
 cane of August 11, 1831, destroyed her. ffeld^ 
 the Insurers were discharged, for as soon as 
 the substantial purpose of the voyage, that is 
 the delivery of the cargo, was completed, the 
 voyage was ended. Moore v. Taylor, 1 A. & E., 
 25; 3 L. J. (N. S.), K. B., 133; 3 N. & M., 406. 
 
 9. On oil mill, occupied for crushing lin- 
 seed and grinding dyewood, £1,000 ; on fixed 
 m.-ichinery and millwright works, including 
 all the standing and growing gear therein, 
 £1,000; one engine house adjoining the mill, 
 £200; one steam engine therein, £300; one 
 logwood warehouse in which chopping dye- 
 wood is performed, £200 ; one warehouse on 
 the other side of the mill, £300. Held, ma- 
 chinery and gear in the logwood house was 
 not insured, and evidence was not admissible 
 to show the intention of the parties to insure 
 machinery and gear in it Hare v. Barstow, 
 8 Jut., 838. 
 
 10. Ou ship and freight to her port or ports 
 of discharge in the West Indies, and one 
 guinea additional if she shall proceed to 
 Jamaica. She proceeded to Barbados, dis- 
 charged part of cargo, and sailed for Morant 
 Bay, Jamaica. She arrived and was moored 
 seven days, when she was wrecked in a hurri- 
 cane. The balance of the cargo might have 
 been sold at Barbados, but the master would 
 not remain there long enough to do so. Held, 
 Barbados was her port of discharge ; hence 
 the insurers were released. Hamilton v. Craw- 
 ford, Faculty Dec, 1781 to 1787, p. 451. 
 
 YIII. "What peopeety is within the 
 
 DESCEIPTIOlir. 
 
 1. On blacksmith and carriage maker's 
 stock, manufactured and in process of manu- 
 facture. Held, unmanufactured or raw stock 
 of the kind mentioned was within the policy. 
 Spratley v. Hartford Ins. Co., 1 Dil. Cir. Ct, 
 392. 
 
 2. On a stock of ship timber, including 
 planks, futtocks, knees, locust standards, 
 staves, blocks, falls, clamps, screws, augers 
 and tools contained in the yard and buildings 
 therein, bounded by Sixth and Seventh sti-eets, 
 and Lewis street and the East river. Held, 
 that locust capstans, partly prepared, were 
 within the policy. Webb «. National Fire 
 Ins. C(?., 2 Sandf., 497. 
 
 3. On fixtures and gas metres belonging to 
 and rented by the gas company, placed or to 
 be placed in the buildings, stores or dwellings 
 of subscribers for seven years. Held, it was 
 not limited to the property placed at the time 
 the policy was made, but included all that 
 were placed after its issue; and insurers were 
 liable for the whole not exceeding the amount 
 insured. New York Oas Light Go. v. Mechan- 
 ics Fire Ins. Co., 2 Hall, 108. 
 
 4. $1,000 on his stock in trade as a. baker, 
 and on household furniture contained in a 
 frame dwelling and bake house. Held, the 
 tools and implements necessary for carrying 
 on the business of a baker were covered by the 
 policy. Moadinger v. Meeluinics Fire Ins. Co., 
 2 Hall, 490. 
 
 0. Upon certain articles valued, from the 
 United States to Europe, to be disposed of for 
 the purpose of procuring a return cargo, and 
 at and from thence to a port of discharge in 
 the United States. Stipulated: "The risk is 
 
 503 
 
1007 
 
 POLICY (OF THE). 
 
 1008 
 
 What property is within the description. 
 
 to attach to the proceeds of the articles men- 
 tioned in this policy in the return cargo." 
 Cargo was discharged; the markets being 
 dnll, it was left on consignment for sale, and 
 a return cargo was taken on credit before the 
 outward cargo was sold. Held, the insurers 
 were liable, it being made to appear that the 
 return cargo was intended as a substitute for 
 the outward cargo, and might fairly be con- 
 sidered as proceeds of the same. Ha/oen, n. 
 Gray, 12 Mass., 71. 
 
 6. $12,500, namely: $12,000 on their stock 
 of watches, watch trimmings, etc., contained 
 in their store, and $500 on furniture and fix- 
 tures. Held, the word " stock " included the 
 general stock, and was not limited to watches, 
 watch trimmings and materials. Crogby v. 
 Franklin Ins. Co., 5 Gray, 504. 
 
 7. The application asked whether any ex- 
 plosive or highly inflammable matter was 
 kept in or near the premises. To which in- 
 sured replied : "Not to my knowledge." The 
 application was for insurance " On household 
 furniture, being my stock in trade, mostly 
 chamber furniture in sets." Policy was writ- 
 ten " On stock in trade, being mostly chamber 
 furniture in sets, and other articles usually 
 kept by furniture dealers, based on an appli- 
 cation, etc." Insured kept as much varnish 
 on the premises as was usually kept by furni- 
 ture dealers. Held, the contract covered the 
 furniture of a furniture dealer, and such other 
 articles as were proved to be usually kept 
 by furniture dealers, and necessary to the 
 pursuit of the business of insured ; it covered 
 varnish and oil, if they were usually kept" by 
 furniture dealers, and to the extent they were 
 usually kept. Haley v. Dorchester Mutual Fire 
 Ins. Go.. 12 Gray, 545. 
 
 8. " On engine and machinery contained in 
 a building on A street, for the manufacture of 
 tin ware." Insured had 600 dies to give form 
 to various utensils manufactured. A single 
 pair only could be used at a time, the others 
 were kept on shelves and not fitted to any par- 
 ticular presses. Held, they were covered by 
 the policy. Seamy v. Central Mutual Fire 
 Ins. Co., Ill Mass., 540. 
 
 9. A policy by a mutual insurance company 
 upon stock in trade, for a term of five years. 
 Held, it covered successive- losses upon the 
 stock in trade during the term, to the amount 
 insured (in the aggregate), but no more. Crom- 
 bie V. Portsmouth Fire Ins. Co., 26 N. H., 389. 
 
 504 
 
 10. On store and goods. Insured sold the 
 goods and let the store to the purchaser. Sub- 
 sequently canceled the lease and took the 
 goods back. They were burned within the 
 term insured. Held, the policy covered any 
 goods the property of the plaintiff that T\ere 
 in the store at the time of the fire, and it was 
 immaterial when the goods were purchased, 
 whether before or after the policy was eSected 
 Lane v. Maine Mutual Fire Ins. Co., 12 Me., 44. 
 
 11. Plaintiffs loaned defendants $17,000 on 
 respondentia, but no bond was executed, be- 
 cause it was uncertain whether the shipment 
 would be goodi or specie. It was agreed that 
 if specie should be shipped, bills of lading 
 should be taken for $17,000, but if goods for 
 $20,000, in which latter case the lenders 
 should only be liable to avei'age and entitled 
 to salvage, as if it had been a specie shipment. 
 The vessel sailed with seven hundred pieces 
 of goods, valued at $20,000 ; she was stranded 
 and lost and forty-five of the seven hundred 
 pieces were totally lost; balance saved in a 
 damaged condition. Held, insurers were lia- 
 ble for goods totally lost and nothing more. 
 Delaware Ins. Co. ■». Archer, 3 Rawle, 216. 
 
 12. On starch factory, including machinery 
 and fixtures. Heid, it included all fixtures 
 necessary in the manufacture of starch. Pe- 
 oria Marine and Fire Ins. Co. ■». Lewis, 18 
 111., 553. 
 
 13. Insured was engaged in the manufac- 
 ture ftf chairs. The policy described the sub- 
 ject insured as " chair lumber and such other 
 stock as is usually used in a chair manufacto- 
 ry, contained in their chair factory situated 
 on Superior street, between Kingsbury and 
 Roberts streets." The premises comprised a 
 main building and an engine house ten feetiu 
 the rear of the main building; both were con- 
 nected by a platform eight feet wide and by 
 belting passing from the engine house to the 
 main building. There was also a shed about 
 fifty feet distant. The second story of the en- 
 gine house was used as a drying room for 
 chair stuff partially worked. The main 
 building was occupied with machinery and 
 workmen. Held, both buildings were neces- 
 sary to constitute the factory; for factory does 
 not necessarily mean one building or edifice, 
 but may apply to several, where they are used 
 in connection with one another for a common 
 purpo.se and are within the same inclosure ; 
 
 i the chair lumber in either building was with- 
 
1009 
 
 POLICY (OF THE). 
 
 1010 
 
 What property is not within the description. 
 
 in the terms of the contract Liebemtein v. 
 Baltic Fire Ins. Go., 45 111., 301 ; Same v. Me- 
 tropolitan Im. Co., id., 305. 
 I 14. On articles used in packing hogs, (^ttle 
 I etc Held, coal upon the premises, to he used 
 in generating steam for the purpose of pack- 
 ing, was included. Home In$. Go. v. Favorite, 
 46 111., 263 ; Phanix Ins. Co. o. Fanorite, 49 111., 
 259. 
 
 15. On ship tackle, ordinance, ammunition, 
 artillery, and furniture of the ship. Held, it 
 included provisions for the use of the crew. 
 Brough e. Whitmore, 4 Term, 206. 
 
 IX. What peopektt la not within 
 
 THE DESCEIPTION. 
 
 f L Upon merchandise from New York for 
 Batavia, and other ports in the island of Java. 
 " Upon the goods out and the proceeds of the 
 goods home." Held, the policy did not cover 
 the identical out cargo on the return passage. 
 J)ou> V. Whetten, 8 Wend., 160. 
 
 2. " On cargo from New York to Batavia, 
 and on the proceeds thereof home." The 
 same goods were taken on the return voyage 
 and lost Held, they were not covered by the 
 policy. Dow V. Hope Ins. Co., 1 Hall (N. Y.), 
 166. 
 
 3. On jewelers stock in trade. Blankets 
 were purchased with consent of the insurer to 
 protect the store from a fire burning in an ad- 
 jacent building. Held, not a loss within the 
 policy. WeUes e. Boston Ins. Co., 6 Pick., 182. 
 
 4. "On stock of clothing manufactured 
 and in process of manufacture." Stipulated: 
 " Not liable for loss on property owned by any 
 other party, unless the interest of such party 
 be stated on this policy." Held, it did not 
 cover cloth taken by insured to be manufac- 
 tured under a written agreement, though in- 
 sured was liable for the risk of fire, nor did it 
 cover the work of the insured thereon. 
 GeteheU v. ^tna, Ins. Co., 14 Allen, 825. 
 
 5. " $3,000 on all the wood and logs cut and 
 piled along the line of their railroad. No loss 
 
 , to exceed |1,000 at any one fire." R was the 
 owner of two hundred cords of wood and a 
 quantity of hemlock logs cut from and lying 
 in piles on land adjoining the plaintiflFs' rail- 
 road in the town of Rindge. The land was 
 not owned or occupied by plaintiffs. The 
 piles varied from one to six cords each, and 
 from about two to eight rods from the railroad. 
 
 This wood was consumed by fire kindled by 
 sparks from the railroad company's locomo- 
 tives. At and after the date of the policy, and 
 up to the time of the fire, plaintiffs owned 
 wood piled at other points on the line of their 
 road, some of which was in sheds at their sta- 
 tions ; but they never owned any wood on or 
 near the land mentioned. Held, there was 
 nothing on the face of tJie policy to indicate 
 that it was intended to cover anything but the 
 plaintiffs own property; prima facie, they were 
 insured as owners simply. Admitting that 
 the plaintiffs had au insurable interest in the 
 property of others exposed to danger caused 
 by fire escaping from their locomotives, this 
 was a special and contingent interest. When 
 the insured is the owner of property such as 
 is described in this contract, the court must 
 assume, in the absence of any indication to 
 the contrary, that the party was insured as the 
 owner of that property. If any thing more 
 was intended it should have been expressed in 
 appropriate language ; hence the policy should 
 be limited to that which naturally and obvi- 
 ously comes within its terms. Monadnock 
 Railroad Co. v. Manufacturers Ins. Co., 113 
 Mass., 77. 
 
 6. On unfinished house. Held, it did not 
 
 cover timbers lying in an adjoining building 
 to be used in its construction. EUmaker v. 
 Franklin Fire Ins. Co., 5 Penn. St., 183 ; 6 W. 
 & S., 439. 
 
 7. On jewelry and clotliing, being stock in 
 trade. Stipulated: "Groods held in trust or 
 on commission are to be declared and insured 
 as such. Gtoods on storage must be separately 
 and specifically insured." Held, goods in 
 pawn were held in trust, and therefore not 
 within the policy. Held, also, the contract 
 was limited to jewelry and clothing, and did 
 not include musical or surgical instruments, 
 guns, pistols or books. Safel v. Nashville Ma- 
 rine and Fire Ins. Co., 7 La. An., 244. 
 
 8. On English, American and West Indian 
 goods. Held, if tea or nutmegs were neither 
 English, American nor West Indian goods, 
 they were not within the protection of the 
 the policy. Huekins v. People's Mutual Fire 
 Ins. Co., 31 N. H., 238. 
 
 9. On a vessel at Baltimore, against loss by 
 fire. She was in course of construction. Held, 
 it did not cover spars, blocks, cordage, and 
 other articles necessary and proper for her 
 building, fitting and equipping, unless there 
 
 505 
 
1011 
 
 POLICY (OF THE). 
 
 1012 
 
 What causes of loss are within. 
 
 was evidence of a usage at the port of Balti- 
 more showing that insurers of vessels regarded 
 such spars, etc., as part of the vessel, and un- 
 tlerstdod that they were covered by the policy, 
 though in warehouse; that proof of a usage 
 to that effect in the city of New York was not 
 competent evidence. Mason v. Franklin Fire 
 Ins. Go., 12 G. & J., 468. 
 
 10. Insured, commission merchants, en- 
 gaged in selling goods consigned, obtained 
 insurance against loss by Are on certain goods. 
 Stipulated: " Not to cover goods held in trust 
 or on commission, unless so declared." Beld, 
 insurer's liability was limited to the goods 
 which belonged to insured. Baltimore Fire 
 Ins. Go. f>. Loney, 20 Md., 20. 
 
 1 1. '• On grain and other merchandise. Haz- 
 ardous and not hazardous, contained in each 
 of their two warehouses," etc. Insured were 
 grain merchants, receiving and storing grain. 
 EM, a platform scale, bedded in the floor of 
 one of the warehouses, a beam scale, a corn 
 sheller and belting, which things had been 
 dispensed with in the business, and had been 
 offered for sale, and tools, implements or 
 other articles necessary or convenient in the 
 business, used as occasion might require, were 
 not included in the policy. " Merchandise " 
 means all those things which merchants sell, 
 and does not include every species of inani- 
 mate movable property. The policy did not 
 cover articles of personal property not in- 
 tended for sale by the owner. Kent v. Liver- 
 pool and London Ins. Go., 26 lud., 294. 
 
 1 2. On stock of wearing apparel and house- 
 hold furniture. Held, it did not cover linen 
 sheets and shirts smuggled and kept for clan- 
 destine sale. GUtry v. Protection Ins. Co., 1 
 Wright, 228; Watchorn o. Langford, 3 Camp., 
 432. 
 
 13. On freight from San Domingo to Liver- 
 pool. Fart of the outward cargo was bartered 
 for fifty-five bales of cotton and taken on, but 
 much outward cargo was yet on board when 
 she was lost. Held, the insurer was liable for 
 the freight of the fifty-five bales of cotton, 
 and nothing more. Forbes v. Gowie, 1 Camp., 
 520. 
 
 14. On stock in trade, consisting of corn, 
 seed, hay, straw, fixtures and utensils in busi- 
 ness. SeM, hops and matting were not in- 
 cluded, although it was proved that they were 
 part of the stock in trade of the business of 
 corn dealer and seedsman, in which trade iu- 
 
 506 
 
 sured was engaged. Joel v. Harvey, 5 W. R., 
 
 488. 
 
 X. .What causes of loss aee withiit. 
 
 1. Perils of the sea. "On cattle, against 
 perils of the lakes, seas, rivers, canals, rail- 
 roads, fires, jettisons and all other perils or 
 misfortunes that have or shall come to the 
 hurt, detriment or damage of the said prop- 
 erty, or any part thereof, including the usual 
 risk of lighterage at Ontonagon." Insured 
 had forty cattle on board ; the insufficiency of 
 water on the bar prevented the vessel from 
 going to the dock. The cattle were put upon 
 a lighter, in the usual way of landing in such 
 cases, a chain running fore and aft, to which 
 they were tied. While the lighter was pro- 
 ceeding the cattle became violent, broke the 
 chain, and twenty-seven of them were thrown 
 into the water and drowned. Held, a loss by 
 perils of the seas (citing The Beeside 2 
 Sumn., 567; Garrison v. Memphis Ins. Co., 19 
 How., 312; Potter t>. Suffolk Ins. Co., 2 Sumn., 
 197; Garrigues ». Coxes, 1 Binn., 592). An- 
 thony V. u^tna Ins. Co., 1 Abb. Cir. C, 343. 
 
 2. — She took a cargo of molasses at Ha- 
 vana, and sailed for a northern port in the 
 United States, but encountered a cross sea in 
 the Gulf Stream, caused by the meeting of the 
 trade wind with the current of the Gulf, com- 
 menced leaking and was compelled to put 
 into Key West, where it was ascertained she 
 would have been worth after repairs less than 
 the cost of repairs. Held, It was no defense 
 to the action, to say that heavy seas were or- 
 dinarily encountered in the Gulf Stream, for 
 heavy cross seas are not the ordinary peril of 
 the sea; that the jury were to determine from 
 all the evidence, whether the loss was or not 
 caused by perils of the sea. Ballard v. Soger 
 Williams Ins. Go., 1 Curtis, 148. 
 
 3. Term policy. She was seaworthy at the 
 commencement of the risk, in the harbor of 
 Newport, lo take a cargo of iron for New 
 York. She hauled alongside of the wharf, 
 commenced to discharge ballast and to 
 take in iron. She was capable to take 400 
 tons, but when she had about 290 tons it was 
 found that she made fourteen inches of water 
 per hour. Cargo was discharged and the 
 ends of her sheathing were found started, the 
 false keel very much chaffed, the scarf hove 
 out, the butts very open, seams very much 
 
1013 
 
 POLICY (OF THE). 
 
 1014 
 
 What causes of loss are within. 
 
 strained, and in some places the oakum had 
 worked out. The harbor was what is called a 
 dry harhor, the tide rising and falling about 
 thirty feet, the bottom consisted of a soft mud 
 several feet in thickness upon shingles. She 
 was taking in cargo and putting out ballast 
 from July 9th to the 17th. Held, a loss by 
 perils of the sea, because the injury might 
 have been occasioned by striking upon some 
 hard substance overlaying the dock, or from 
 some malposition ; and because there was no 
 evidence that it was the result of wear and 
 tear (citing Fletcher v. Ingles, 3 B. & A., 315 ; 
 Kingston e. Marshall, 8 Bing., 418). Potter v. 
 Suffolk Ins. Co., 3 Sumn., 197. The evidence 
 in this case did not seem to indicate that the 
 loss was attributable to any inherent weak- 
 ness in the vessel. — [Ed. 
 
 4. Pestilence. Ship was driven into a 
 port of necessity. A pestilential disorder 
 broke out while she was in port, which ren- 
 dered it impossibe for her to pursue the 
 voyage. Held, a loss within the policy. Wil- 
 liams V. SmitTi, 2 Caines, 1. 
 
 5. War risks. When the policy is general 
 and there is a warranty, it includes war risks 
 of all kinds and of all countries. BamewaU 
 V. Church, 1 Caines, 217. 
 
 e. All risks. Where the policy contains a 
 written clause " against all risks," it protects 
 against every loss, except such as are caused 
 by the fraudulent acts of the insured. Goix 
 v. Knox, 1 Johns. C, 337. And the written 
 words, if there is any reasonable doubt upon 
 the sense or meaning of the whole, are to 
 have a greater effect than those printed. Ibid. 
 
 7. — " On horses, from Liverpool to New 
 York, all risks, including death from any 
 cause whatever." She encountered a gale and 
 heavy sea, during which one of the horees 
 was thrown down, bruised, refused to eat, and 
 died. Post mortem examination proved that 
 his deatli was caused by violent bruises in the 
 breast Held, insurer was liable. Coit v. 
 Smith, 3 Johns. C, 16. 
 
 8. Coirimissions. Expenses were incurred 
 by the master, in the defense of cargo, for the 
 repayment of which he pledged the ship and 
 cargo ; and the insured, to get possession of his 
 property, paid his proportion of the expenses, 
 including commissions. Held, if the master 
 acted in good faith, and the charges were rea- 
 sonable and necessary, the insurer was liable. 
 Fontaine v. Columbian Int. Co., 9 Johns., 30. 
 
 9. — "Warranted free from loss, if not per- 
 mitted entry in consequence of having ne- 
 groes on board." She came to anchor off 
 Moro Castle, where all vessels stop to be vis- 
 ited. And before permission could be had to 
 land them, she was lost in a hurricane. Held, 
 the loss was within the policy. Dickey v. 
 United Ins. Co., 11 Johns., 358. 
 
 10. Blowing up buildings. On earthen- 
 ware in crates. A conflagration was raging, 
 and the municipal authorities, for the purpose 
 of staying it, blew up the building with gun- 
 powder. The goods were consumed. Held, 
 a loss within the policy. City Pire Ins. Co. 
 «. Gorlies, 21 Wend., 367. 
 
 11. Deliverance from danger. "On the 
 ship Sebastopol, while being safely launched 
 at St. Luce, near Quebec, beginning the ad- 
 venture at and from, as aforesaid, and so shall 
 continue and endure, till the said vessel shall 
 be safely arrived, at as aforesaid, and until 
 she be moored twent3'-four hours in good 
 safety, against perils of the seas, men-of-war, 
 fires, etc., and all other sea perils losses and 
 misfortunes, except those arising from the 
 negligence, fraud, ignorance, or misconduct of 
 the master." She was started on the ways, 
 moved down about two-thirds the distance 
 September 26th ; she stopped, was in a very 
 critical and dangerous position, her stern 
 being in the water she was in imminent 
 danger of being hogged. Great exertions 
 were made in blocking and putting stanch- 
 ions under her, making new ways and using 
 all the means in tlieir power to prevent injury. 
 She was finally floated in safety. Hdd, insur- 
 ers were liable for the actual expenses neces- 
 sarily incurred in preserving and delivering 
 her from the danger. Friehette v. State Mu- 
 tual Fire and Marine Ins. Co., 3 Bos., 190. 
 
 12. Casualties of war. Permission was 
 granted to the pereon insured to go south of 
 36° of north latitude, and reside there, but 
 stipulated: "The policy shall not insure 
 against death from any of the casualties or 
 consequences of war or rebellion, or from bel- 
 ligerent forces." While engaged as superin- 
 tendent, in charge of mechanics and laborers 
 constructing a bridge on a railroad, under the 
 direction of the military authorities of the U. 
 S., about thirty miles in the rear of the Union 
 army, a party of four men, not in uniform, 
 shot and killed the person insured, and robbed 
 the men who were at work with him. Held, 
 
 507 
 
1015 
 
 POLICY (OF THE). 
 
 1016 
 
 What causes of loss are within. 
 
 the death was not within the exception. Welia 
 V. Connecticut Mutual Life Ins. Go., 48 N. Y., 34. 
 
 13. On a Sidmouth license from Boston to 
 Alexandria, valued at $3,000. Stipulated: "The 
 insurance is to be against its (license) loss, not 
 only by capture by the British or Americans, 
 or other power, but against its being destroyed 
 by the ordinary perils of the sea, fire, or otli- 
 erwise." She was boarded by a British ship 
 of war; the commanding officer indorsed the 
 license in such a manner as to render it use- 
 less for any other vessel, and proof was made 
 that it would not then sell for anything in the 
 market. Seld, a loss within the policy. Per- 
 kins D. S'ew England Marine Ins. Go., 12 
 Hass., 215. 
 
 14. Sacriflce made or expenses incurred to 
 save property from Are are to be contributed 
 for, but the property to contribute is limited 
 to the building and the property therein. It 
 cannot be extended to the property of. the 
 neighborhood. Welles «. Boston Ins. Go., 6 
 Pick., 183. 
 
 15. — Insurer of ship is liable for loss of 
 boat from stern davits at sea, unless it is 
 proved that it was improperly carried. Hail 
 «. Ocean Ins. Go,, 21 Pick., 472. 
 
 16. Instruction. Stipulated: "This pol- 
 icy is not to cover any loss or damage by fire 
 which may originate in the theatre proper." 
 A flue in a side brick wall, used as a smoke 
 flue from the furnace of a steam boiler, heated 
 the bricks of the wall and caused the wood 
 work of the theatre to ignite. Held, not within 
 the exception. Sohier «. Norwich Fire Ins. 
 Co., 11 Allen, 336. 
 
 1 7. Hats. A leak, occasioned by the gnaw- 
 ing of rats is a peril within the policy. Oar- 
 riffuet « Goxe, 1 Binn., 592. 
 
 1 8. Captured by confederates. On steam- 
 boat, taking risk of " enemies, pirates and as- 
 sailing thieves, and all such losses which shall 
 come to the damage of said steamer, according 
 to the true intent and meaning of the policy*" 
 She was captured by an armed force acting 
 under the authority of the Confederate States. 
 Held, a loss within the policy. Monongahela 
 Ins. Co. v. Chester, 43 Penn. SL, 491. 
 
 1 9. Capture. " The undersigned do insure 
 L. F. & Co. $2,00J on mahogany, from San 
 Domingo to St. Thomas ; touching the risks I 
 am willing to bear, they are the same as con- 
 tained in all regular policies of insurance." 
 She was captured and condemned. Held, it 
 
 SOS 
 
 included capture at sea, arrests, restraints and 
 detainments, of all kings, princes and people, 
 and that loss by capture was a risk assumed. 
 Lej)y V. Merrill, 4 Me., ISO. 
 
 20. Construction. " On potatoes, against 
 perils of the sea, and all other misfortunes," 
 etc., " not liable for any partial loss on articles, 
 esteemed perishable in their own nature un- 
 less it amounts to seven per cent, on the ag- 
 gregate value of the article, and happen by 
 stranding." The potatoes were lost by perils 
 of the sea, but not by stranding. Held, the loss 
 was within the policy. Williams v. Cole, IC 
 Me., 207. 
 
 21. Perils of the sea. She sailed from 
 Liverpool and arrived at Charleston with a ' 
 full cargo, where she changed masters; the 
 mate, under the directions of the new master, 
 hauled her into the slip. She was then tight 
 and was hauled up as far as she could go at 
 high water. When the tide fell she lay 
 aground abaft midships to the bow, but with 
 plenty of water, abaft midships to the stern, 
 and so continued at every ebb of the tide. Be- 
 fore half the cargo was out she commenced 
 leaking. Some jepairs were made, but the 
 leak could not be found, and she sailed 
 with a cargo of c tton for Liverpool, at which 
 place she lay afloat in a good dock for forty 
 days ; sailed thence, in February, with coal, to 
 Havana; thence to Greenock, where she was 
 taken out, and found hogged. She went 
 thence to New York; but never touched the 
 bottom from the time she left Charleston. 
 There was evidence that she seemed to have 
 rested against old logs which had worked out 
 of the slip at Charleston: for her copper was 
 wrinkled diagonally, indicating that she had 
 rested on some hard substance. Held, if she 
 took the ground in a malposition at Charles- 
 ton, it was a peril of the aea, for which insur- 
 ers were liable, and it would be no defense to 
 the action, if the injury was caused by the 
 carelessness of the master. Hagar s. Neuo 
 England Mutual Marine Ins. Co., 59 Me., 460. 
 
 22. Contraband. Application for insur- 
 ance against all risks for account of whom it 
 may concern $8,000 on ship Budget, valued at 
 $10,000 from London or Antwerp to one or 
 two ports on the Spainish Main, at and from 
 thence to a port in the United States. The 
 risk was accepted for $5,000 at an agreed 
 premium. Insured wrote the following day 
 to insurers : " Although our advices give us 
 
1017 
 
 POLICY (OF THE). 
 
 1018 
 
 Wliat causes of loss are witiiin. 
 
 no reason to believe there will be an}' articles 
 contraband of war on board the ship Budget, 
 still as we wish to be covered from all pos- 
 sible risk, we request your reconsideration 
 of the -within application, including articles 
 contraband of war." To which defendants 
 replied: " As yesterday, including articles of 
 war, $3,000 on the vessel; $3,000 on the 
 freight," accepted by the plaintilfs. Seld, the 
 order was to be regarded as incorporated in 
 the policy, audit, in effect, declared that the 
 Budget may be belligerent property; if she is, 
 we require protection against all perils inci- 
 dent to her in that character, or she may be, in 
 point of fact, neutral; in that event, we ask an 
 indemni^ against every casualty, not explic- 
 itly excepted, which may befall her as such. 
 It neither asserts her to be one nor the other 
 character, but provides an exemption from 
 loss in behalf of the insured, let her condition 
 in that respect be what it may. Hence, the 
 policy covered neutral and belligerent risks. 
 Maryland In*. Go. v. Bathunt, 5 O. & J., 159. 
 
 23. Custody of the law. She was libeled 
 and taken into the custody of the U. 8. mar- 
 shal, carried across the river from New Or- 
 leans, and there kept in charge of the mar- 
 shal's deputy and another person. She had 
 neither captain nor crew on board. Held, it 
 did not affect the policy unless tlicre was evi- 
 dence of increase of risk, of which there was 
 none. BM i. VTeitem Marine and Fire /»». 
 Co., 5 Bob. (La.), 423; BM e. Firemen'i In». 
 Co., id., 446. 
 
 24. Sinking to prevent seizure. War- 
 ranted free from loss or damage which may 
 arise in consequence of a seizure or detention 
 for or on account of any illicit or prohibited 
 trade. The subject insured was bullion. She 
 sustained sea damage and was compelled to 
 put into Tampico. A portion of the bullion 
 was sunk in shallow water to prevent seizure 
 of it, and with an intention to recover it again. 
 Hdd, it was the dntj' of the master to labor for 
 the safety and recovery of the cargo in the in- 
 terest of the underwriters, at whose risk it 
 was. There was no evidence to show that 
 throwing the silver overboard was imputable 
 to insured ; hence there was no defense made 
 out under the warranty. Kolin o. Nem Orleans 
 Ins. Go., 13 La. (O. S). 348. 
 
 25. On slaves. All risks taken. The slaves 
 mutinied on the voyage and escaped. Seld, 
 the insurer was liable because the risk of mu- 
 
 tiny and insurrection was not excepted. Me- 
 Oargo «. MercJiaivts Ins. Co., 10 Rob. (La.), 334 ; 
 Lockett V. Merchants Ins. Co., id., 339. 
 
 26. Of the sea. She was an old vessel, 
 but insurers knew her age. She w^as greatly 
 strained in getting off a bar, and after she had 
 been at sea some days, she sprung a leak, 
 which increased so rapidly that it became 
 necessary to make a port of distress, where 
 she was surveyed, condemned, and sold as un- 
 worthy repaira. Held, a loss by perils of the 
 sea. Phillips «. St. Louis Perpetual Ins. Co., 
 11 La. An., 459. 
 
 27. On the life of a slave. She was em- 
 ployed in a tobacco warehouse, and insured 
 as a laborer in it. She fell into the water and 
 was drowned while passing from the steamer 
 Emperor to the shore, on her way to work up- 
 on a sugar plantation. The defendant averred 
 it was an occupation more dangerous than 
 that insured. Held, the intention to employ 
 her on a sugar plantation was not the cause of 
 death. Summers c. United States Ins. and 
 Trust Co., 13 La. An., 504. 
 
 28. Water to extinguish Are. The upper 
 story of the house caught fire, and in attempt- 
 ing to extinguish it by throwing water upon 
 it, the goods insured were damaged. Held, in- 
 surer was liable for the damage. Chisek v. 
 Crescent Mut. Ins. Co., 19 La. An., 297. 
 
 29. All other perils. On sugar, New Or- 
 leans to Cincinnati, against perils of the riv- 
 ers, fires, rovers, assailing thieves, and all 
 other perils, losses, and misfortunes, that have 
 or shall come to the hurt, detriment or dam- 
 age of the said goods or merchandise, or any 
 part thereof, by reason of the dangers of the 
 river. A mob of citizens fired a cannon across 
 her bow when she was passing Helena, Arkan- 
 sas, and compelled her to land; they took pos- 
 session of vessel and cargo, by which the 
 sugar was totally lost Held, the last words 
 of the general clause did not limit the contract 
 to the risks previously enumerated, namely, 
 " perils of the rivers," for that would make 
 the contract read " against the perils of the 
 rivers and all other perils of the river." The 
 taking was a peril included in the general 
 words found at the close of the peril cl.TOse, 
 for which the insurers were liable. Babbitt b. 
 Sun Mut Ins. Co., 23 La. An., 314. 
 
 30. Barratry (except embezzlement or 
 theft) of the master, was among the risks as- 
 sumed. The master and mariners friiudu- 
 
 509 
 
1019 
 
 POLICY (OF THE). 
 
 1020 
 
 What causes of loss are within. 
 
 lently stranded hor near Key West. She was 
 carried into Key West, where a large portion 
 of the cargo was condemned for salvage ; and 
 on her arrival in New York, the port of desti- 
 nation, the cargo owners libeled her for non- 
 delivery of the cargo sold at Key West. She 
 was condemned and sold to satisfy the libel- 
 laut'B demand. HtUd, the condemnation and 
 sale of the vessel was the legal consequence of 
 the barratrous conduct of the master ; for if 
 there had been no barratry, there would have 
 been no foundation for the action in which the 
 vessel was condemned; and, the rule is, that 
 all the consequences which flow naturally 
 from the peril insured against, or which are 
 incident thereto, are properly attributable to 
 the peril itself (citing Magoun b. New Eng- 
 land Ins. Co., 1 Story, 164). Pike v. MercJianU 
 Mut. Ins. Co., 26 La. An., 393. 
 
 31. "On the entire of the steamboat Belle 
 Creole, including her machinery, furniture, 
 etc." Held, it covered costs of repairing ma- 
 chinery, and the expense of towing her to the 
 nearest port for repairs; but it did not cover 
 wages of crew and expense of subsistence dur- 
 ing the delay. Perrg v. Ohio Ins. Go., 5 Ohio, 
 305 ; Gaizam v. GincinnMi Ins. Co., 6 id., 71 ; 
 WeHb ». Protection Ins. Co., id., 456. 
 
 32. Perils of the sea. On cargo on board 
 a flatboat, Lawrenceburg to New Orleans. 
 She met a steamboat at the foot of Longberry 
 bar, and in passing each other a heavy swell 
 was caused by the opposing force of each 
 boat. When the midship of the boat reached 
 the top of a heavy swell, there was a noise 
 like that of a violent breaking, and soon after 
 8he commenced leaking rapidly at the splice 
 of the gunwales, which caused damage to 
 the cargo. Held, a loss by perils of the 
 sea. Washington Ins. Co. v. Beed, 20 Ohio, 
 199. 
 
 33. Escape of steam. On mules against 
 perils of the river, etc. They were injured by 
 an escape of steam in the boat upon which 
 they were being transported. Held, an escape 
 of steam without the fault of the officers of 
 the steamboat, whereby some of the mules, 
 prudently stationed on board, were injured, is 
 a peril of the river. Union Ins. Co. n. Groom, 
 4 Bush, 289. 
 
 34. On negroes and horses. Stipulated: 
 " Only insured against the dangers incident 
 to navigation, drowning, blowing up," etc. 
 One of the negroes accidentally fell overboard 
 
 510 
 
 and was drowned, without the happening of 
 any disaster to the boat or any unusual oc. 
 currence. Held, a loss within the policy. 
 Moore v. Perpetiuil Ins. Co., 16 Mo., 98. 
 
 35. On live stock in transit from Decatur 
 to Vicksburg. They were unloaded at Carlo 
 from the cars upon a platform three or four 
 feet high, from which they were driven down 
 an inclined plane to the boat, one of them, a 
 mule,jumpedoff and received internal injuries 
 from which it died in an hour. Held, the loss 
 was within the policy. uStna Ins. Go. v. 
 Stivers, 47 111., 86. 
 
 36. Violation of law of nations. Ship was 
 captured and condemned, on the ground that 
 she was destined for a British port; that she 
 had cargo suitable for exchange with the 
 British, and intended for them. Held, the 
 capture was a violation of the law of nations, 
 and, therefore, no defense to the action. Marsh 
 D. Muir, 1 Brev., 134. 
 
 37. Perils of the sea. A merchant ship 
 was taken in tow by a British ship of war 
 and exposed to a violent sea, which caused 
 damage to cargo. Held, a loss by perils of the 
 sea, and it seems that it might have been 
 alleged a loss by capture and detention. Hage. 
 dorn V. Whitmore, 1 Starkie, 157. 
 
 38. — Time policy. She was ordered into 
 a dry harbor. When the tide went out she 
 took the ground and sustained damage. Held, 
 a loss by perils of the sea. Fletcher v. Inglis, 
 2 B & A., 315. 
 
 39. — Vessel was wrecked, part of the goods 
 lost and part put on shore, and these were de- 
 stroyed by the inhabitants of the coast. Held, 
 an absolute total loss by perils of the sea, for 
 which no abandonment was necessary. Son- 
 drett V. Hentigg, Holt N. P., 149. 
 
 40. AH risks. " On cargo against perils 
 of the seas, men of war, enemies, pirates, 
 rovers, jettisons and of all other perils, losses 
 or misfortunes that had or should come," etc. 
 She was attacked and the master threw a 
 quantity of dollars overboard to prevent them 
 getting into the enemy's hands ; she was im- 
 mediately captured; was Spanish property; 
 but the insurers knew of that fact when they 
 subscribed the policy. Held, the loss was 
 within jettison, enemies, or all other losses or 
 misfortunes. Butler v. Wildman, 3 B. & A. 
 398. 
 
 41. Transhipment. " On ship and cargo at 
 and from, etc., during her stay and trade, etc., 
 
1021 
 
 POLICY (OF THE). 
 
 1022 
 
 What causes of loss axe -within. 
 
 until safe arrival at last port of discharge." 
 She sustained damage; the goods were tran- 
 shipped ; and, in the course of the voyage, the 
 second vessel was captured. Held, insurers 
 ■were liable for an average loss, which oc- 
 curred after they were transhipped. Planta- 
 mour V. Staples, 3 Doug., 1 : 1 Term, 611, n. 
 
 42. Perils of the sea. On animals war- 
 ranted free from mortality and jettison. In 
 consequence of the violent pitching of the 
 vessel some of them died and others were so 
 much bruised and lacerated that they died 
 also. Reld, the word mortality, as used in 
 policy, did not exempt the insurer from the 
 loss, because the animals had not come to 
 their death from any natural cause, but in 
 consequence of a peril of the sea. Lawrence v. 
 AberdHn, 5 B. & A., 107 ; Oabay v. Lloyd, 3 B. & 
 C, 793; 8 L. J. K. B., 116; 5 D. & R, 641. 
 
 43. Blowing np ship. Ship was chased 
 by a French privateer, which gained upon her 
 rapidly; and, to prevent capture, her guns 
 were discharged down her hatchways, which 
 set Are to her. Held, a loss within the policy. 
 Gordon v. Remington, 1 Camp., 123. 
 
 44. Spontaneons. combustion. While the 
 ship was lying near Torbay, a fire broke out 
 in the hold, which consumed the greater psrt 
 of the cargo, but its origin was not discovered. 
 Held, the insurers were liable. Boyd «. Dubois, 
 8 Camp., 133. 
 
 45. Perils of the sea. In moving a ship 
 from one part of the harbor to another, it 
 became necessary to send two of the crew on 
 shore to cast off one line and to make fast 
 another. These men were impressed, carried 
 off, and not allowed to cast off the rope, and 
 in consequence she drifted ashore and was 
 lost. Held, a loss by perils of the sea. Hodg- 
 son e. Maleoln, 5 B & P.. 836. 
 
 4S. Mntiny. On negroes. Stipulated : " Not 
 to be liable for mortality by natural death, 
 nor to pay for mortality by mutiny, unless it 
 amounts to ten per cent, to be computed 
 upon first cost of vessel outfit and cargo, 
 ▼alaing the negroes at £35 per head." Before 
 she sailed an insurrection was attempted, the 
 women seized the master and attempted to 
 throw him overboard, but he was rescued by 
 the crew; some of the men and women threw 
 themselves down the hatchway and were much 
 bruised, many of whom afterwards died from 
 the bruises and from abstinence. There was 
 another insurrection, when the crew were 
 
 forced to fire upon the negroes and attacked 
 them with weapons. Some of them took to the 
 sides of the ship and hung on by chains and 
 ropes, some were killed and others recovered, 
 but many died in consequence of wounds and 
 from chagrin and disappointment. Held, those 
 who were killed or died in consequence of 
 bruises and wounds were within the policy; 
 that as to the other causes of death the insurers 
 were not liable. Jones «. Schmoll, 1 Term, 
 130, n. 
 
 47. Transhipment. The ship was cast 
 away, but a large part of the cargo saved and 
 forwarded in the ship Pere de Famille, and 
 sold for the interest of all parties, proceeds 
 reinvested in other cargo and reladen. In 
 the course of the voyage she was condemned 
 as unfit to proceed, and they were transhipped 
 again to the Louisa, which was captured. 
 Held, the insurers were liable for the loss. 
 Plantamour «. Staples, 1 Term, 611, n.; 3 
 Doug., 1. 
 
 48. " On ship and stores at and from," etc. 
 An embargo was laid while she was in port, 
 and such part of the stores as were perishable 
 were sold, and the ship abandoned to insurers. 
 Held, a loss within the policy. Jtotch v. JSdie, 
 6 Term, 413. 
 
 49. All risks. Policy on ship against the 
 perils of the seas, and all other perils, losses, 
 and misfortunes. Mistaking her for an ene- 
 my's ship, a British ship of war fired into 
 and sunk her. Held, insured was entitled to 
 recover. Cullen v. Butler, 5 Mau. & Sel., 461 ; 
 4 Camp., 289; 1 Stark., 110. 
 
 50. Perils of the sea. Ship laden with 
 hides and tobacco. In very heavy weather 
 she shipped large quantities of sea water. At 
 port of destination the hides were found in a 
 state of putrefaction," which had caused the 
 tobacco to contract a bad flavor, a great dam- 
 age to it. Held, the damage to the tobacco 
 was a los.<) by perils of the sea. Montoya v. 
 London Ass. Co., 6 Exchr., 451 ; 20 L J. Ex., 
 254. 
 
 5 1 . — On ship, dated July 2, 1860. She was 
 then on a voyage from Calcutta. July 11th, 
 she encountered a heavy storm, and was 
 severely strained. She put into Rio July 30th, 
 leaking badly. She was hove down, and it 
 was found that the copper sheathing below the 
 water line was damaged. In order to get at 
 and stop the leak, the sheathing was removed 
 and replaced. She had not struck on the 
 
 511 
 
1023 
 
 POLICY ..OF THE). 
 
 1024 
 
 What causes of loss are not within. 
 
 ground, against a rock, nor auy other thing. 
 Held, a loss by perils of the sea. Harrison v. 
 Universal Marine Ins. Co., 3 F. & F., 190. 
 
 52. — While ship was loading, the increased 
 weight of cargo carried the discharge pipe 
 below the surface of the water, which passed 
 down the pipe under the valve, through the 
 cocks, negligently left open, and flowed into 
 the hold, injuring the plaintiff's goods. Seld, 
 a loss by perils of the sea. Davidson v. Bur- 
 nand, 4 L. R. C. P., 117; 38 L. J. C. P., 73; 17 
 W. R., 121 ; 19 L. T. (N. S.), 783. 
 
 53. All risks. On vessel. The peril clause 
 concluded as follows : " And on all other per- 
 ils, losses and misfortunes that have or shall 
 come to the hurt, detriment, or damage of the 
 said vessel." She arrived at St. Johns, and 
 moored alongside the wharf, where she dis- 
 charged her cargo, was removed for another ves- 
 sel to take her place to discharge, and she was 
 made fast to the other. When the tide ebbed, 
 her fastenings gave way, she fell over and was 
 injured. Held, a loss within the policy. Na- 
 pier V. Wood, 4 C. C. 8., 19. 
 
 54. Falling walls. "On tenement and 
 room communicating." A house near by took 
 fire ; one of the walls was left standing in a 
 tottering condition, and it fell three days after 
 the fire, damaging the premises insured. Held, 
 insurers were liable for the damage. Johnson 
 ■0. West of Scotland Ins. Co., 7 C. C. 8., 52. 
 
 55. Fire heat. The defendants pleaded it 
 was stipulated in the policy that the defend- 
 ants would not be liable for any loss or dam- 
 age to still, coppers or such like, occasioned 
 by the ordinary flre heat under the same, nor 
 for the loss to spirits or such like therein at 
 the time of such loss or damage ; and that the 
 stock in trade mentioned was, at the time of 
 the happening of the flre mentioned, spirits 
 and such like in a still, and that the loss com- 
 plained of was occasioned by the ordinary 
 fire heat tinder the said still. Held, insurers 
 were exempt from liability from the conse- 
 quences of fire heat used in the process of dis- 
 tillation; but they were liable for all loss 
 caused by other accidental flre. Jameson v. 
 Boynl Ins. Co., 7 Irish R. Law, 126. 
 
 56. Goods stolen. Stipulated: "In case of 
 a removal of goods to escape conflagration, 
 this company will contribute ratably with the 
 insured and other companies interested, to the 
 loss and expenses attending such act of salvage. 
 Held, injuries to the goods caused by wet, or 
 
 512 
 
 in any manner from exposure during confu- 
 sion, and before they could be taken to a place 
 of safety, as well as goods stolen in the con- 
 fusion at the fire, were covered by the policy. 
 Thompson v. Montreal Ins. Co., 6 U. C. Q. B., 819. 
 57. Spontaneous combustion. On coal. 
 Held, it covered coal deposited after the policy 
 was issued, and a loss caused by spontaneous 
 combustion. British American Ins. Co. v. 
 Joseph, 9 L. C, 448. 
 
 XI. "What causes of loss aee not 
 
 WITHIN. 
 
 1. AVorms. The court instructed the jury 
 that if in the Pacific Ocean worms ordinarily 
 assail and enter the bottoms of vessels, then 
 the loss of a vessel caused by worms would 
 not be a loss within the policy. Held, no 
 error, for the insurers assume losses from ex- 
 traordinary occurrences, only such as stress of 
 weather, winds, waves, tempests, rocks, etc. ; 
 these are understood to be perils of the sea, 
 but not the ordinary perils encountered by 
 every vessel in all seas. Hazard v. New Eng- 
 land Marine Ins. Co., 8 Pet., 5-57; 1 Snmn., 218- 
 
 2. On specie. Against perils of the sea. 
 Held, a loss by embezzlement was not w^ithin 
 the terms of the policy. jBTjcifcg v. Fitzsimmons, 
 1 Wash. C. C, 279. 
 
 3. Ordinary wear and tear. From a port 
 on the Brazil coast to Canton, with liberty to 
 touch or stop at Pegu Islands, or any other 
 islands, ports or places the master may think 
 proper. She stopped at the Pegu Islands, 
 went to Norfolk Islands, the only place she 
 could obtain refreshments of which she stood 
 in need ; thence to Pannings Island, where she 
 remained three months for repairs ; but sub- 
 sequently, needing other repairs, she went to 
 Guan ; not being able to repair there, she went 
 to Manilla, was surveyed, condemned as un- 
 worthy of repairs, and sold by order of court. 
 Held, if the injury resulted from ordinary 
 wear and tear, insurers were not liable; but 
 if it happened in consequence of the violence 
 of the winds or waves, or running on the 
 rocks, then they were liable. Coles v. Marina 
 Ins. Co., 3 Wash. 0. C, 159. 
 
 4. On cargo. New York to New Orleans. 
 She put into Havana for water. The govern- 
 ment would not allow her to take any until 
 her cargo was landed and put into the custom 
 house stores; the master sold it there; but 
 
1025 
 
 POLICY (OF THE). 
 
 1026 
 
 What causes of loss are not within. 
 
 there was not satisfactory evidence that she 
 was prohibited from talcing it agaia. Held, 
 the insured could not recover. Wood n. Pleas- 
 mU, 3 Wash. C. C, 201. 
 
 5. Fear of Danger. On an American ship, 
 at and from New York to Barcelona and Salon, 
 valued at $5,500. Warranted: "American 
 property; in case of capture or detention, not 
 to abandon in less than six months after ad- 
 vice thereof at this office, or until after con- 
 demnation. If turned away for attempting a 
 blockaded port, to proceed to a port not block- 
 aded; not liable for seizure or detention at 
 port of destination in consequence of having 
 touched, by choice or force, at a British port." 
 She was boarded off St. Michaels by a British 
 cruiser, and wai-ned not to enter any of the 
 ports of France, Holland, Spain, Portugal, 
 Italy, Denmark, or any port from which the 
 British flag was excluded. She put into Gib- 
 raltar for advice, being informed that the 
 Algerines and the United States were at war. 
 She remained at Gibraltar about ten days, 
 when she obtained permission from the gov- 
 ernment there to proceed to Barcelona, on tak- 
 ing a certificate showing that she had touched 
 there. As she was getting under weigh, intel- 
 ligence was received of the French and Span- 
 ish decrees, which would have given a right 
 of capture and condemnation to French and 
 Spanish cruisers. In consequence of this, 
 she broke up the voyage and returned to Kew 
 York. Held, the fear of misfortune was not 
 the misfortune itself; otherwise, all distinc- 
 tion between imaginary or apprehended dan- 
 ger, present and palpable, would cease. Graig 
 v. United Ins. Co., 6 Johns., 326. 
 
 6. — The fear of loss is not the loss itself, and 
 is no justifiable cause for abandonment. Nor 
 was the apprehension of seizure and confisca- 
 tion, if any such apprehension existed, suffi- 
 cient to create a loss of the voyage, there be- 
 ing no evidence that the port' of destination 
 was blockaded, or neutral trade with it inter- 
 dicted. Corp V. United Ins. Oo., 8 Johns., 278. 
 
 7. Retardation. On passage money, at and 
 from New York to San Francisco. She received 
 passage money, $88,500, for passengers to be 
 taken at Panama. She sailed nia Cape Horn, 
 encountered heavy weather, was obliged to 
 put into St Thomas for repairs, March 14th, 
 and was not expected at Panama until June. 
 Prior to the disaster, she was expected to be 
 at Panama in April. The passengers arrived 
 
 33 
 
 at Panama April 13th and 14th, and were told 
 by the agent she would not reach there untiB 
 July. She did not in fact arrive till near the 
 end of August. The passengers were for- 
 warded from Panama. Held, insurers were 
 not liable, for they did not contract that the 
 vessel should deliver her passengers within 
 any given time. Howard v. Astor Mut. Im. 
 Co., 5 Bos., 38. 
 
 8. Contingent expenses. The ship owner 
 must provide means to meet contingent ex- 
 penses at each port of destination. If he does 
 not, and a loss results to the cargo from his 
 failure, the ship owner is liable for it, and not 
 the insurer of cargo, the loss not being within 
 the general terms of the policy.. Moses «. Sun 
 Mut. Ins. Co., 1 Duer, 159. 
 
 9. Sale of Cargo. On cargo. She was 
 driven into a port of distress, where the master 
 sold it. Meld, not an act of barratry, because 
 the master acted in good faith ; the cause for; 
 selling was not its damaged condition, but to 
 obtain money to repair the vessel ; hence the 
 loss by the sale was not insurer's loss. Muck- 
 man r>. Merchants Louisville Ins. Co., 5 Duer, 
 343. 
 
 10. On vessel and cargo. From Marble- 
 head to one or more ports in the West Indies, 
 for the purpose of selling outward cargo and 
 purchasing one for return, and at and from 
 thence to Marblehead. Held, it did not in- 
 clude loss of the proceeds of outward cargo, 
 caused by fire at the foreign port ; nor damage 
 to ship by worms and climate, during &n em- 
 bargo; nor extraordinary expenditures for 
 provisions, whether consumed by seamen or 
 sentinels put onboard during embargo; nor 
 possible earnings of the ship prevented by 
 the embargo. Martin v. Salem Marine Ins. 
 Co., 3 Mass., 430. 
 
 11. On freight. Ship was captured by a 
 British cruiser, carried to England, and liber- 
 ated. In the meantime the French decrees 
 rendered it very hazardous for her to proceed 
 to port of destination. By an order in chan- 
 cery, cargo was delivered to an agent of the 
 owners. Ship owner sought but failed to re- 
 cover freight in an action instituted for that 
 purpose. Held, the loss arose from an appre- 
 hension of peril, hence the insurer was not 
 liable. Tucker v. United Marine artd Fire 
 Ins. Co., 12 Mass., 888. 
 
 1 2. Fraud. The insured, an American, waa 
 the real owner of the ship insured, but a 
 
 513 
 
1027 
 
 POLICY (OF THE). 
 
 1028 
 
 What causes of loss are not within. 
 
 Spaniard was the ostensible owner. She pro- 
 ceeded on the voyage insured, was captured 
 by a British vessel of war, carried to Halifax, 
 and libeled as prize. While slie was in pos- 
 session of the captors, insured abandoned; 
 afterwards, in pursuance of claim made by 
 the master, she was restored on the payment 
 of expenses, $453.40. After the restoration 
 the ostensible owner and master put on board 
 a cargo and proceeded to the West Indies 
 without consent, sanction, or authority of any 
 one else. Held, as the detention was tempo- 
 rary, insured was not entitled to a total loss on 
 that ground. Held, also, that the ostensible 
 owner was not tlie agent of insurers, but of 
 the insured ; tJiat the loss occurred by reascm 
 of the fraud of the ostensible owner, one 
 whom the insured trusted, and the insurer was 
 not liable. Smith v. Touro, 14 Mass., 112. 
 
 13. Illicit Trade. On goods, the produce 
 of the United States, on board an American 
 vessel, at and from Boston to St. Pierre Mique- 
 lon, at and from thence to Boston, with liberty 
 to proceed to St. Johns, Kewfoundland. 
 Part of the goods were sold at St. Pierre, and 
 she proceeded with the other part for St. 
 Johns; but that voyage was prohibited. She 
 was seized and condemned, because the cargo 
 had not been brought directly from the United 
 States. fi^eW, that as the terms of the policy 
 were general, and the insurer did not know 
 that the voyage was illicit, the loss was not 
 within the policy. AreMhdld «. Meticantile 
 Ins. Co., 3 Pick., 70. 
 
 14. Insurer of ship not liable for a hauser 
 stowed in a boat on deck, which is lost over- 
 board. Brookes t. Oriental Ins. Co., 7 Pick., 
 359. 
 
 15. The cargo had been transhipped, the 
 vessel condemned and sold, and all attempts to 
 prosecute the voyage in the original ship 
 abandoned. She was afterwards totally 
 wrecked at the port of distress. Held, if in- 
 surers were discharged by the improper 
 breaking up of the voyage and sale of the 
 vessel, the subsequent total loss did not re- 
 vive their lost rights. Paddock v. Commereial 
 Ins. Co., 2 Allen, 93. 
 
 16. Fear of danger. On goods, "with 
 liberty, in case of being turned off on account 
 of blockade, to proceed to a neighboring 
 port." She was captured and restored, but 
 hearing of the French and Dutch decrees, in 
 fear of which she was prevented from pro- 
 
 514 
 
 cccding to the port of destination, and there- 
 fore put into London and discharged cargo. 
 Held, there was no loss of voyage, and that 
 the insurers were discharged. Ferguson v. 
 Phoenix Ins. Oo., 5 Binn., 544. 
 
 1 7. Ice jam. Against loss by Are or storm. 
 Held, the word storm must be taken as refer- 
 ring to the action of the elements: that a rain 
 accompanied by a warm south wind, which 
 melted and carried off the snow and caused a 
 jam of ice in the river, which took away a 
 part of the mill insured, was not a loss within 
 the policy. Stover v. Insurance Co., 3 Phila., 
 38. 
 
 1 8. Sale of cargo. On cargo from Garde- 
 nas to Portland. She sailed January 8th, 
 struck on a reef same day, in consequence of 
 which she was obliged to put into Havana for 
 repairs, and the master was compelled, for 
 lack of money, to sell part of the cargo, but 
 on the voyage home she became a total loss. 
 Held, the loss by sale of a part of the cargo 
 was not a loss by a peril of the sea, for the 
 grounding was not the proximate cause of the 
 loss. The repairs made were such as the ship 
 owner, a common carrier, was bound to make, 
 though the damage was caused by a peril in- 
 sured against, the sale of the cargo was caused 
 by the want of funds or credit in port (citing 
 General Mut. Ins. Co. v. Sherwood, 14 How., 
 351). Dyer v. Piseataqua Fire and Marine 
 Ins. Co., 53 Me., 118. 
 
 19. Failure to forward cargo. Stipulated: 
 " In case of damage or loss, it shall be ascer- 
 tained by a separation and sale of that pordon 
 of the contents of the packages so damaged, 
 as far as practicable." Held, if it was practi- 
 cable to have separated and sold the cargo 
 damaged, and to have forwarded to point of 
 destination that which was not damaged, in- 
 surers were entitled to require insured to show 
 that was done ; that insurers were not liable 
 for any damages which might have been 
 avoided by forwarding the undamaged cargo. 
 Franklin Ins. Go. d. Gobi, 2 Cin. Sup. Ct, 87. 
 
 20. Decayed and rotten. The insurer is not 
 bound to make good the decayed and rotten 
 parts of a vessel, unless the accident which 
 happens within the peril insured against is 
 of such a nature as will not admit of repairs 
 being placed on her, so that the decayed and 
 rotten parts shall be used as formerly. Hyde 
 V. Louisiana State Ins. Co., 14 Martin (La.), 410. 
 
 2 1 . Mutiny. " On 26 negroes, at $800 each 
 
1029 
 
 POLICY (OF THE). 
 
 1030 
 
 What causes of loss are not within. 
 
 warranted free from elopement, insurrection 
 and natural death." Her cargo consisted of 
 135 slaves, besides tobacco. The slaves muti- 
 nied, subd\ied officers and crew, and became 
 complete masters of the vessel. Nineteen of 
 them took charge of, and compelled the mate 
 and crew to navigate her to the port of Nas- 
 sau, N. P^ where they arrived November 9th, 
 and were subsequent^ pat on shore and liber- 
 ated. Held, a ship or vessel on the high seas, 
 engaged on a lawful voyage, is under the ex- 
 clusive jurisdiction of the state to which her 
 flag belongs, as much so as if she constituted a 
 part of the territory ; and, if forced by stress of 
 weather, or other unavoidable cause, into the 
 port of a friendly power, she is entitled to the 
 same rights that she' had upon the high seas ; 
 and ship and her cargo, and the persons ou 
 board and all their personal property and rela- 
 tions, as established by the laws of the state to 
 which they belong, are protected and defended 
 by the law of nations; that the local laws of 
 the port into which she is forced do not super- 
 sede the laws of the state to which she be- 
 longs, in respect to the duties, rights and obli- 
 gations of those on board. Seld, also, the in- 
 surrection of the slaves was the cause of 
 breaking up the voyage, and prevented that 
 part of the cargo which consisted of slaves, 
 from reaching the port of New Orleans, for 
 which the insurers were not responsible. Mc- 
 Gargo e. Neva Orleans Im. Go., 10 Rob. (La.), 
 i(^; Andrews e. Ocean Ins. Co., id., 333; Lock- 
 tit V. Firemen's Ins. Go., id., 333; Hagan -e. 
 Ocean Ins. Go., id., 333 ; Johnson i>. Ocean Ins. 
 Go., id., 334; MeGargo 9. MerduijUs Ins. Go., 
 id., 349. 
 
 22. Explosion. Damage produced by the 
 explosion of steam boilers, used in manufac- 
 turing sugar, is not within a policy on sugar. 
 Millaudonv. New Orleans Ins. Go.,A La. An., 15. 
 
 23. Passage money. The policy covered 
 passage money. She was driven .by stress of 
 weather into Key West, and there libeled, on 
 the ground that she was unseaworthy when 
 the voyage commenced. The court decreed 
 repayment of the passage money. Held, the 
 loss of the passage money was not a peril 
 wittiin the policy. Marks ®. NashviUe Marine 
 and Fire Ins. Go-, 6 La. An., 136. 
 
 24. Extra duty. Against certain perils 
 named, "And all unavoidable perils, losses 
 and misfortunes." She was captured and de- 
 tained. While so detained an extraordinary 
 
 duty was laid on the cargo, at the port of desti- 
 nation. Held, not within the policy. BePeait 
 V. Bussel, X Brev., 441. 
 
 25. Worms. Ship was condemned as irre- 
 parable. Cause, damage by worms. Held, 
 not a loss by perils of the sea. Bohl v. Parr, 
 1 Esp., 444. 
 
 26. Bilging. She was hove down on the 
 beach, within the tideway, to be repaired, and 
 was bilged and otherwise damaged. Held, not 
 a loss by perils of the sea. Thompson a. Whit 
 more, 3 Taunt., 337. 
 
 27. Fire heat " Against all damage by Sre 
 on stock and utensils, in ttteir regular built 
 sugar house." Damage to sugar in the pans, 
 in process of manufacture, was caused by the 
 accidental increase of heat from the fires usu- 
 ally employed in refining. Held, not a loss 
 within the policy. Austin ». Drewe, 6 Taunt., 
 486; 3 Marsh., 130; 4 Gamp., 360; Holt N. P., 
 136. 
 
 28. Rats. Ship touched at Antigua, and was 
 there detained for a long time by the sickness 
 of the crew, and while there rats ate holes in 
 her transoms and other parts of her bottom, in 
 consequence of which she was found unfit to 
 proceed, and was condemned and sold. Held, 
 insurers were not liable. Hunter o. Potts, 4 
 Camp., 303. 
 
 29. Against perils of the sea, and all other 
 perils, losses, and misfortunes. Ship was put 
 into a graving dock near the wharf, to be re- 
 paired, and there, by the violence of the wind, 
 thrown over and damaged. Held, not a loss 
 by perils of the sea ; but it was within the gen- 
 eral term, " all other perils, etc." Phillips v. 
 Barher, 5 B. & A-, 161. 
 
 30. Negroes thrown overboard. On slaves. 
 By mistake she got to the leeward of Jamaica, 
 and fell short of water. Some of the negroes 
 died, and one hundred and fifty were thrown 
 overboard. A verdict was given for the plaint- 
 ifis. Held,, the case did not show any neces- 
 sity for throwing the negroes overboard. Qtreg- 
 son c. Gilbert, 3 Doug., 333. 
 
 31. Sale of cargo. On cargo. Ship was 
 disabled by perils of the sea, and prevented 
 from pursuing her voyage, being obliged to 
 put in for repairs. The master was unable to 
 procure money to defray expenses, except by 
 sale of a part of the cargo, which was done. 
 Held, the insurer on cargo was not liable, for 
 the loss was not by a peril of the sea, but be- 
 cause of the inability of the master to procure 
 
 515 
 
1031 
 
 POLICY (OF THE). 
 
 1032 
 
 What causes of loss are not within. 
 
 money to repair the ship. Sarquy v. Hobton, 
 2 B. & C, 7; 12 Moore, 474; 4 Bing., 131; 3 D. 
 & B., 192. 
 
 32. Broken steam pipe. Damage was 
 caused to cargo by the escape of water through 
 a broken steam pipe, which had been cracked 
 by frost. Hdd, not a loss by perils of the sea. 
 Siordet v. Sail, 4 Bing., 606. 
 
 HS. Embargo, I., a resident citizen of the 
 United States, shipped wheat and peas in an 
 American ship, and consigned them to C. & 
 D., at Liverpool, British merchants, one a res- 
 ident in England, the other in the United 
 8tat«s; and to protect themselves for large 
 advances made upon the goods, they insured 
 them in England for the benefit of the shipper. 
 The United States laid an embargo on all ves- 
 sels in her ports, and the ship was detained 
 in consequence. An abandonment was made. 
 Seld, the action could not be maintained 
 against the British insurers, if the act which 
 was the foundation of the claim was the act 
 of the insured, or he was party to it; that the 
 insured must be considered as a party to the 
 act of the government of the United States, for 
 he was an American citizen. That the con- 
 signees could not be permitted to enforce the 
 policy and apply the recovery to protect their 
 interest, because the policy was made for the 
 benefit of the consignor, who could not en- 
 force it for his own benefit. Conway v. Gray, 
 10 East, 536. 
 
 34. Sale of cargo. On goods. Ship i)ut 
 into a port of distress for repairs ; and in order 
 to defray expenses, having no other means, 
 the master sold a part of the cargo. Seld, not 
 a loss by perils of the sea, for it was a loss by 
 sale of the goods. Powell v. Gudgeon, 5 Mau. 
 & Sel., 431. 
 
 35. Embargo. She was insured from Hull 
 to St. Petersburg, and sailed with 'convoy to 
 the Sound. Under an apprehension of hostili- 
 ties, she was detained by a king's ship in the 
 Baltic for eleven days; proceeded thence to 
 rendezvous for convoy, where she waited 
 seven days; sailed with convoy until notice 
 that an embargo was laid at St. Petersburg 
 on British ships, when she was ordered to re- 
 turn to rendezvous. She returned to Hull, i 
 Seld, the laying of a hostile embargo on the 
 destined port made the further prosecution of 
 the adventure impracticable, which was not a 
 loss within the policy. Fonter v. Christie, XI 
 East, 205. 
 
 516 
 
 36. Detention. Ship was forced to put into 
 Vigo, and there process was issued npon which 
 the cargo was detained t>ecause it did not cor- 
 respond with the original manifest. A part 
 of it was sold by decree of court, and the bal- 
 ance released, with which she departed. Seld, 
 the process being against the cargo could not 
 detain the ship, hence for the detention of 
 the ship and the expenses incurred, her in- 
 surer was not liable. Bradford v. Leoy, R. & 
 M., 331; 3 0. & P., 137. 
 
 37. Sale ot cargo. " Against takings at sea, 
 arrests, restraints and detainments of all kings, 
 princes, and people of what nation, conditioa 
 or quality soever." She was forced by stress 
 of weather into Elly Hai-bor, Ireland, while 
 there was great scarcity of corn there, and 
 the people came on board in a very violent 
 manner, took possession of her, weighed an- 
 chor; she was driven on a reef and stranded, 
 where the master was compelled by the peo- 
 ple to sell the cargo at about three-fourths the 
 invoice cost. Seld, the insurers were not lia- 
 ble for the loss sustained in consequence of 
 the sale. Neshitt v. LuMngton, 4 Term, 783. 
 
 38. Ketardation. Slaves were insured 
 against perils of the sea. She was delayed by 
 bad weather to such an extent that many of 
 the slaves died for want of sufficient food. 
 Seld, not a loss within the policy. Tatham v. 
 Sodgson, 6 Term, 656. 
 
 39. Wear and tear. Ship arrived at Sun- 
 derland, the port of destination, went up the 
 river abreast of Laing's ship yard, but had to 
 wait four or five days before she could get in 
 to discharge, and was moored head and steru. 
 She floated when the tide came in, and was 
 aground, but not dry at low water. The 1)each 
 was hard, shingly and steep< When she took 
 the gronnd she listed towards the beach about 
 two planks, and at the ebb of the first tide a 
 creaking noise was heard as she took the 
 ground, which was continued for three days at 
 the ebb and flow of the tide while discharging. 
 She made more water than usual, and became 
 hogged after she took the ground. Some of 
 the tree nails started, and some planks left the 
 tree nails. Seld, not a loss by perils of the 
 sea, but mere wear and tear. Afagnus o. But- 
 temer, 21 L. J., C. P., 119; 11 a B., 876; 16 
 Jur.,480. 
 
 40. Constmction. Fire policy " On steam- 
 ship and tackle, lying in the Victoria docks, 
 With liberty to go into dry dock and light the 
 
1033 
 
 POLICY (OF THE). 
 
 1034 
 
 What dajnages axe covered. 
 
 boiler fires, once or twice during the currency 
 of this policy." Held, the policy attached 
 only while she was in the Victoria docks, or 
 in a dry dock, or while she was going to or 
 returning from a dry dock; that insurers were 
 not liable for a loss by fire while she was 
 moored in the river where she had then re- 
 mained ten days for the purpose of repairing 
 lier paddle wheels. Pearson ®. Commercial 
 WnienMi. Co., 15 C. B. (N. S.), 304; s. c, 10 
 Jur. (N. 8.), 517; 33 L. J. C. P., 85; 13 W. R., 
 251; 9 L. T. (N. S.), 442; affirmed, 8 L. R. C. 
 P., 548; s. c, 42 L. J. C. P., 164; 22 W. R., 
 100; 29 L. T. (N. S.), 279. 
 
 41. Expenses of suit. One of the perils as- 
 sumed, was loss which insured might be com- 
 pelled to pay as damages to another vessel 
 caused by accident or negligence. Insured 
 was sned for collision with another vessel. 
 He defended and obtained judgment, but in- 
 curred expenses in defending it. Hdd, insur- 
 ers were not liable. Xenos v. Fox, 4 L. R. O. 
 P., 665; affirming s. c, 3 id., 630; 88 L. J. C. 
 P., 351 ; 17 W. R., 893 ; 16 id., 1053. 
 
 42. Retardation. On butchers' meat 
 against perils of the sea, and all. other perils, 
 losses, misfortunes, etc., from Hamburg. 
 November 3, 1866, she encountered heavy 
 weather, and was obliged to put into Cuxha- 
 ven on the 5th. She put to sea on the 6th, and 
 was obliged to put back again. She sailed on 
 the 8th and encountered very severe weather the 
 whole voyage. On the lOlh, owing to the 
 delay caused solely by perils of the sea, the 
 meat became putrid, and was necessarily 
 thrown overboard. HM, not a loss within 
 the policy (citing Tatliam o. Hodgson, 6 Term, 
 656). Taylor v. Dwniar, 4 L. R. C. P., 206 ; 38 
 L.J. C.P.,178; 17W.R.,382. 
 
 43. Worms. She sailed from STngland to 
 Oporto, thence to Newfoundland, where she 
 was hove down, keel taken out and bottom put 
 in perfect repair. She sailed January 4th, and 
 arrived at Demarara February 14lh, and took 
 a cargo for Liverpool. This policy was made 
 February 24th, on freight She sailed April 
 15th to join convoy, but took the ground in 
 passing the bar and was got off; but the master 
 and some of the crew were taken sick, and he 
 was obliged to put back. He got the neces- 
 sary number of men after some delay, got 
 over the bar May 2l8t, and then proceeded to 
 join convoy at Surinam. The admiral or- 
 dered her into Martinique, because she 
 
 sprung a leak and the crew could not keep 
 her free. She arrived at Martinique with five 
 feet of water in her hold. Her stern post and 
 part of her bottom were so much eaten by 
 worms that she was then wholly unseaworthy. 
 Held, insurers were not liable for the loss, be- 
 cause it was caused by worms. Lovell v. Me. 
 Millan, Faculty Dec, 1808 to 1810, p. 341. 
 
 XII. What damages aee covered. 
 
 1 . Wages and provisions, from time vessel 
 is obliged to bear away to a port of necessity, 
 in consequence of injuries received, are recov- 
 erable under a policy on the ship. Hengkavt 
 e. Marinfi Ins. Co., 2 Gaines, 274. 
 
 2. Temporary repairs. The insurer is lia- 
 ble for temporary repairs made by the master, 
 in good faith, in a foreign port, also for per- 
 manent Impairs made at home at the end of 
 the voyage. Brookes v. Oriental Ins. Co., 7 
 Pick., 259. 
 
 3. Strain. If the ship Veceives a strain, 
 which alters her shape so that she cannot be 
 repaired perfectly without rebuilding, and her 
 value is thereby diminished, the depreciation 
 should be added to the expense of repairs, 
 which have been made to render her sea- 
 worthy. Hagar v. New England Mutual Ma- 
 rine Ins. Co , 59 Me., 460. 
 
 4. On Steamboat. Stipulated: "Insured 
 shall use every practical effort for the safety 
 and recovery of the steamboat, and if recov- 
 ered, cause the same to be forthwith repaired ; 
 and in case of neglect or refhsal on the part 
 of the insured, his agents or assigns, to adopt 
 prompt or efficient measures for the safeguard 
 and recovery thereof, then insurers are hereby 
 authorized to interfere, etc., and to cause the 
 same to be repaired, to the charges of which, 
 insurer will contribute in proportion as the 
 sum herein insured bears to the agreed value." 
 She grounded in a situation peculiarly liable 
 to loss, if certain perils assailed her. Insured 
 incurred certain expenses to rescue her from 
 the danger. Held, insurer was liable If the 
 expenses were fairly and bona fide incurred for 
 rescuing her, notwithstanding the danger of 
 total los^ was not imminent. Dix o. Union 
 Ins. Co., 23 Mo., 57. 
 
 5. Repairs. Stipulated: "Insurers shall 
 not be liable for expenses or damage in haul- 
 ing out for repairs, nor for any loss except in 
 case of general average, unless the necessaiy 
 
 517 
 
1035 
 
 POLICY (OF THE). 
 
 1036 
 
 What dajnages are not covered. 
 
 repairs, caused wholly by the disaster, shall 
 amount to ten per cent, on $30,000, the agreed 
 value." The repairs amounted: to >$l,9d5.69. 
 For docking the boat, $246, and |330 for the 
 use of the dock. Held, tlie expense of dock- 
 age and docking must be considered a part of 
 the repairs, because in making it, it was neces- 
 sary to dock her. Snapp «. Merchants and 
 Manufacturers Ins. Co., 8 Ohio St., 458. 
 
 6. — Insurer gave notice of an intention to 
 repair the buildings, but after a delay of four 
 weeks, refused absolutely to repair or pay any 
 part of the claim. Within that time they 
 were exposed to the weather, which increased 
 the damages $400. Meld, insurer was bound 
 to pay what it would have cost to mak^ the re- 
 pairs, at the time they were made, including 
 the damages sustained by exposure. Ameri- 
 can Central Ins. Co., v. McLanathan, 11 Kan., 
 533. 
 
 7. — Particulars of the disaster were trans- 
 mitted to the owner, who made them known 
 to the insurers, aiid expressed his desire to 
 abandon, but they told him to repair the ves- 
 sel and pay the tradesmen's bills. He refused 
 to advance any money, but consented to the re- 
 pairs. A large sum of money was taken up 
 by the master on bottomry. She arrived. In- 
 surers refused to take up the bottomry bond, 
 and she was sold to satisfy it, which amounted 
 to £678. She brought but £630. B^eW, insurers 
 were liable for all the loss which had accrued 
 to the insured, in consequence of that refusal, 
 to the whole amount of the sum insured. Da 
 Costa V. SfeiBnham, 3 Term, 407. 
 
 8. " On passage money, against all costs, 
 charges and liabilities to which the owner or 
 charterer might be subject under sees. 46, 47, 
 48, 49, 50 and 51 of the Passenger Act, 1853; 
 15 and 16 Vict., ch. 44." She was lost on the 
 voyage, the passengers were saved at a Brit- 
 ish colony, where they were obliged to remain 
 for six weeks, and were then forwarded to 
 their place of destination. Seld, insured was 
 entitled to recover all the expenses incurred. 
 Gibson V. Bradford, 4 El. &B1., 586; s. c, 1 
 Jur. (N. S.), 530; 34 L. J. Q. B., 159. 
 
 9. Collision. Stipulated: "In case said 
 ship Shalt come into collision with any other 
 vessel, and the insured shall in consequence 
 thereof become liable to pay, and shall pay, 
 any sums not exceeding the value of said ship 
 and her freight, by and in pursuance of the 
 judgment of any court at law or equity, or by ' 
 
 518 
 
 and in pursuance of any award made on anv 
 reference entered into by insured with insur- 
 ers' previous concurrence, we shall and will 
 severally bear and pay such portion of three- 
 fourth parts of the sums so paid as aforesaid, 
 as our respective subscriptions hereto bear to 
 the value of said ship and her freight" She 
 came in collision with another vessel. Five 
 of the passengers of the other vessel were 
 killed and five others severely wounded. In- 
 sured was compelled to pay £944 15s. 5d., as 
 damages for the loss of life and personal inju- 
 ries. Meld, a loss cvithin the policy. Coef/ «. 
 SmitTi, 33 0. C. S., 955; 33 Scot. Jur., 403. 
 
 XIII. "What damages aee not cov- 
 
 EBED. 
 
 1. When j^eneral average expenses are 
 incurred for ship, freight and cargo owned by 
 one person, and the ship alone is insured, the 
 insured on ship cannot, in the first instance, 
 require the whole expense of his insurer. 
 J-umel V. Marine Ins. Co., 7 Johns., 413. Nor 
 is his insurer liable for marine interest upon 
 a bottomry bond made by the master for 
 money to purchase the ship from her captors, 
 unless the insurer affirms the master's pur- 
 chase. Ibid. 
 
 2. Cargo used for passengers. On cargo. 
 It became necessary during the voyage, to use 
 a part of it to supply the passengers and crew 
 with provisions. Meld, under the general 
 terms of the policy, the insurei's of cargo were 
 not liable for the loss. Moses v. Sun Mut. Ins. 
 Co., 1 Duer, 159. 
 
 3. Time policy on brig and cargo. She 
 was totally lost in a hurricane, at the Isle of 
 France, but the cargo (sugar) had been dis- 
 charged", and was saved. The claim was for a 
 total loss of the ship, and for expenses in- 
 curred in hiring another vessel to carry the 
 cargo to Amsterdam, the port of destination; 
 also for extra wages paid by direction of the 
 United States consul at the Isle of France, to 
 those seamen, a part of the crew, who were 
 discharged at that place; for the board of the 
 master; for commissions on disbursements, 
 and for ten bales of cotton sold there, because 
 the vessel hired to carry the cargo to port of 
 destination was not large enough to take 
 them. Meld, insurers were not liable for the 
 extra expense incurred for the cargo; that the 
 money paid to the discharged seamen was not 
 
1037 
 
 POLICY (OF THE). 
 
 1038 
 
 When it terminates. 
 
 * charge in general average; if chargeable at 
 all, must be against freight; that the loss 
 sustained by tlie ten bales of cotton must be 
 also disallowed, because no necessity for the 
 sale appeared; that the board of the master 
 was a proper charge, but no commissions on 
 disbursements. Dodge o. Union Marine In*. 
 Co., 17 Mass., 471. 
 
 4. — The port of destination was blockaded, 
 and insured accepted the cargo at an interme- 
 diate port, paying full freight to the ship own- 
 er. It was transported thence by lighters to 
 the point of destination. Seld, the insurer 
 was not liable for the expense of transporta- 
 tion nor for the premium paid to insure it for 
 the balance of the voyage. L<ne v. Davy, 5 
 Binn., 595; s. c, 2 S. & R, 553. 
 
 5. Commissions for advancing money to 
 make repairs in a home port are not a charge 
 against insurer, and the port at which the pol- 
 icy is executed is prima facie the home port. 
 Webb II. Protection Ine. Co., 6 Ohio, 456. 
 
 6. Term policy to expire December 1, 1S33. 
 She struck a sunken wreck in the river be- 
 tween ten and eleven o'clock, December 1, 
 
 ■ 1832. She landed between one and two 
 o'clock P. M., that day, and sank (being the 
 result of the injury), between two and four 
 o'clock in the morning of December 2d. 
 Held, a partial loss only within the term in- 
 sured ; that if a ship receives her death wound 
 before the policy expires, and it results in a 
 total loss after the policy expires, the insurer 
 is liable for a partial loss only. Howell v. Pro- 
 tection Jns. COt 7 Ohio, pL 1. 284. 
 
 7. Reinstate or rebuild. Insurer elected 
 to reinstate or rebuild the premises. Held, 
 insured must lose the use of them while they 
 were being rebuilt, for that was not a charge 
 against the insurer, because neither rent nor 
 use of the premises was insured, nothing but 
 the buildings. Leonardo v. PAanix Ass. Co., 
 2 Rob. (La.), 131. 
 
 8. The expense for seamen's wages and 
 provisions during an embargo are not covered 
 by a policy on the ship. Robertson v. Ewer, 
 1 Term, 127. 
 
 9. Fraud. A British ship was captured by 
 a French privateer and carried into Bergen, 
 Norway, and sentence of condemnation ren- 
 dered by the French consul at that place. 
 She was sold, and purchased by the British 
 consul, who acted as agent of the insured; 
 but the captor had entered into contract with 
 
 the owner in consideration of a sum of mon- 
 ey to give him the ship again. Held, the 
 money paid by the insured to regain posses- 
 sion of the ship was illegally paid, and con- 
 stituted no charge against the insurer. Home- 
 lock v. Rockwood, 8 Term, 268. 
 
 10. The policy attached May 1, 1835, 
 while she was on a voyage between England 
 and Calcutta, where she arrived June 5th, and 
 delivered her cargo in good condition. Un- 
 derwriters' agents surveyed her and found her 
 in good condition. She sailed thence with a 
 cargo for London, July 11, 1835, but going 
 down the river, collided with the steamer 
 which had her in tow, carrying away her jib- 
 boom; she proceeded on her voyage, but 
 commenced leaking July 18th, at that part of 
 the ship which had been struck by the tow 
 boat; the 24th she returned to Calcutta, where 
 she was surveyed, her bottom stripped, re- 
 sheathed and recoppered, at a cost of £2,40U. 
 She sailed again August 23d, and in a few 
 days commenced to leak as badly as before; 
 she returned again to Calcutta Septeml)er 9th. 
 The lower strake of wales were taken out on 
 both sides, and it was then discovered that a 
 number of the principal timbers were in a 
 state of decay; further stripping then took 
 place, her whole frame was exposed and the 
 surveyors reported her repairs would cost 
 more than she would be worth, and under 
 their advice she was condemned and sold as a 
 wi-eck for £2,500. Insured claimed a total 
 loss, on the ground that she was a sound ship 
 before collision with the tow boat; that she 
 was unnecessarily pulled to pieces by the sur- 
 veyors on her last return to Calcutta, at which 
 time she might have been fully repaired but 
 for the misconduct of the surveyors and ship- 
 builders who had undertaken to repair her. 
 Held, the insured were entitled to recover for 
 a partial loss only ; that the expenses which 
 would have been incurred to repair her, but 
 which were not in fact incurred, because the 
 owner thought it better to sell her as a wreck, 
 were not within the loss ; that as to any dam- 
 age caused by the negligent or unskillful con- 
 duct of the shipbuilders employed to repair 
 her, they were not within the policy. Stewart 
 V. Steele, 11 L. J. C. P., 155 ; 5 Scott N. R., 927. 
 
 XIV. When it terminates. 
 
 1, On ship from Charleston to Port Repub- 
 
 S19 
 
1039 
 
 POLICY (OF THE). 
 
 1040 
 
 When it terminates. 
 
 Iican, or one other port in the Bite of Leogane. 
 She was seized by a French privateer, carried 
 into Mole St, Nicholas, where the cargo was 
 taken by the French commandant for the use 
 of the garrison, who afterwards promised to 
 pay for it in coffee, after which she was . un- 
 laden. Expecting to receive payment, she re- 
 mained there nearly threfe weeks, when she 
 sailed for Cape Francois, with an order on 
 that place for the coffee. She was seized by 
 the British squadron blockading Cape Fran- 
 cois, and condemned as prize. Cape Francois 
 was not in the route to Port Republican, nor 
 to any port in the Bite of Leogane, nor in the 
 return route from Mole St. Nicholas to the 
 United States. An aliandonment was offered 
 and refused. Held, prior to the abandonment 
 she had been restored to the master, and the 
 nonrestoration of the cargo did not affect in- 
 surers of vessel, for they insured her ability to 
 perform the voyage, not that she should pei^ 
 form it; that the voyage to Port Republican 
 (the voyage insured) terminated at Mole St. 
 Nicholas, and the voyage to Cape Francois 
 was a new voyage, undertaken, not for the 
 benefit of insurers of the vessel, but for the 
 benefit of the owners and insurers of cargo; 
 therefore, insurers of vessel were discharged. 
 Alecander «. Baltimore Ins. Go., 4 Cranch, 370. 
 
 2. On goods until safely landed at Leghorn. 
 She arrived at Leghorn, and according to the 
 usages of that place, was obliged to perform a 
 quarantine of thirty days before the cargo 
 could be admitted to the city ; and, according 
 to same usage, it was conveyed in public light- 
 ers to the Lazaretto, and put in custody of the 
 government oflScers ; while it was there a body 
 of French troops took possession of the city, 
 seized the Lazaretto, sequestered the goods, 
 and refused to deliver them till a ransom 
 amounting to fifty-three per cent, was paid, 
 which the owners were compelled to pay to 
 take possession. Held, when they were landed 
 at the Lazaretto the insurers were discharged. 
 Grade v. Marine Ins. Co., 8 Cranch, 75. 
 
 3. " On property on board vessel or vessels, 
 at and from any port in the United States to 
 any port in the United States, as per indorse- 
 ment, with liberty to stop at any intermediate 
 port or places." Indorsed : " Liberty to stop 
 at Norfolk or other ports for trade by adding 
 one-eighth per cent, for each. Tliis policy 
 attaches as follows : Schooner Potomac, Nor- 
 folk to Salem or Boston." She arrived at 
 
 520 
 
 Salem. Held, the risk terminated there, and 
 a former custom between the same parties, to 
 put into Salem and then proceed to Boston, 
 and afterwards to settle with the insurers by 
 paying an additional premium, could not 
 affect their rights under this contract. Lodge 
 V. Essex Ins. Co., 12 Gray, 65. 
 
 4. "On cargo, to continue until landed." 
 She arrived at port of destination. The con- 
 signees were notified of her arrival, and that 
 she was about to discharge. Some of the 
 goods insured, in tierces and barrels, were put 
 upon the wharf, and a fire occurred by which 
 they were consumed. Held, insurers were not 
 liable. Mansur v. N'ew England Mutual M(t- 
 riiie Ins. Go., 12 Gray, 520. 
 
 5. On ship, one year from November 23, 
 1859. Stipulated : " If, on a passage at the 
 end of the term, the risk to continue at a pro 
 rata premium until her arrival at port of des- 
 tination. To continue during the voyage 
 aforesaid on the vessel until she shall be ar- 
 rived and moored at anchor twenty-four hours 
 in safety, and on the property until landed." 
 At the end of the year she was on a passage 
 from Liverpool for Woosung. Slie arrived at ' 
 the mouth of the Shanghai river, within the 
 port of Woosung, December 25, 1860; received 
 orders to discharge at Woosung, but to re- 
 main there until orders were given in writing. 
 She remained there till January 6th following, 
 wh^n she was destroyed by fire. Held, the 
 risk terminated at the end of twenty-four 
 hours after her arrival at Woosung. Wales v. 
 China Mia. Ins. Co., 8 Allen, 380. 
 
 6. On ship, a privateer, " lost or not lost, 
 from Jamaica to any ports or places whatso- 
 ever at sea or shore, a cruising from port to 
 ports and places, for and during the space of 
 four calendar months, beginning from and 
 immediately following June 14, 1744, free of 
 average, valued at £1,000." She was safe at 
 Jamaica on that day, and sailed on the cruise 
 duly commissioned. September 23, 1744, the 
 crew mutinied and carried her towards Ja- 
 maica, but before arrival there, seized the 
 ship's boat, firearms and cutlasses, carried 
 them off and deserted her, by which the cruise 
 was prevented and lost. She arrived at Ja- 
 maica September 29th, and was there in good 
 safety at the end of four months. In conse- 
 quence of the mutiny and desertion, she was 
 prevented from pursuing the cruise. Held, it 
 was an insurance, not on the voyage, but oa 
 
1041 
 
 POLICY (OF THE). 
 
 1042 
 
 When it terminates. 
 
 the ship ; tliat tlie ship was in proper safety at 
 the end of the term, and therefore the insured 
 
 I could not recover, Pole v. Fitzgerald, Willes, 
 
 1641; affirmed, 4 Bro. C. P., 439. 
 
 I 7. " At and from Havana to New Orleans, 
 until she be moored twenty-four hours in 
 good safety," barratry of the master and 
 mariners included. The master smuggled a 
 lots of goods, which made her liable to confis- 
 cation ; but she was not seized until after she 
 had been moored more than twenty-four 
 hours; the smuggling had been discovered 
 almost immediately on her arrival in port. 
 Held, insurers were released, for the remote 
 cause of the loss was the barratry of the 
 master, but it produced no effect resulting in 
 a loss, until after she had been moored twenty- 
 four hours (citing Lockyer e. OflBey, 1 Term, 
 253). Mariatigue v. Lousiana Ins. Go., 8 La. 
 (0. S.), 65. 
 
 8. On 143 hogsheads of sugar from Kew 
 Orleans to Louisville, in the steamer Belfast 
 She took but 26 hogsheads on the first trip, 
 and on the second she took the balance. The 
 boat and cargo were lost; no indorsement was 
 made on the policy as to the last voyage. 
 Held, insurers were not liable; that parol evi- 
 dence was not admissible to show that the 
 policy was extended to the second voyage or 
 trip, because the charter and by-laws of the 
 corporation required all contracts to be in 
 writing and signed by the president. Court- 
 nay 0. Miitissippi Marine and Fire Ins. Co., 
 12 La. (O. S.), 233. 
 
 9. On goods from China to all or any ports 
 or places in the East Indies, Persia or else- 
 where beyond the Cape of Good Hope, until 
 the ship's safe arrival in London, lieginning 
 the adventure upon tlie said goods from the 
 loading thereof on board said ship at 
 China. She sailed from China with a cargo 
 of tea, some of which was the property of 
 the insured, sprung a leak and put into Bom- 
 bay. The goods were forwarded by another 
 vessel and insured for that voyage by another 
 policy. She was repaired and sailed for Can- 
 ton with a cargo of cotton for insured, upon 
 which voyage she was captured. Held, the 
 policy included the goods put on board at 
 China and not elsewhere, on tlie voyage from 
 China for London. Grant v. De La Cow, 1 
 Taunt, 463 ; &rant v. Paxton, id., 467. 
 
 10. On goods to Archangel, "until they 
 shall be there discharged and safely landed." 
 
 They were discharged under the inspection of 
 government officers, wai'ehoused by them, and 
 afterwards condemned. Held, the insurers 
 were discharged. Brown v. Carttairi, 3 Camp., 
 161. 
 
 11. At and from Liverpool to Martinique, 
 and all or any of the windward and leeward 
 islands, with liberty to touch at any ports or 
 places whatsoever, to take on board or land 
 goods, stores, etc." She arrived at Martinique 
 and discharged all oatwai-d cargo, except a 
 small quantity of lime and bricks, with which 
 she sailed for Antigua, and ai'rived there safe- 
 ly, but was lost in a hurricane while she lay 
 there, eight days after. Held, the insurers 
 were discharged. Inglis v. Vaux, 3 Camp., 437. 
 
 12. '• On cargo to the East Indies until ar- 
 rived at the last place of discharge on the 
 outward voyage." She discharged at Bengal, 
 and took saltpetre for ballast, but sailed on an 
 intermediate voyage to Madras. Held, when 
 the cargo was discharged, the outward voyage 
 terminated. Sichardaon «. London Asa. Co., 
 4 Camp., 94. 
 
 1 :-{. On cargo and freight, at and from Liv- 
 erpool to Montevideo and Buenos Ayres, if 
 open, or to ship's final port of discharge in 
 the river Platte, with libert}' to wait two 
 months at Montevideo, if needful. She ar- 
 rived there August 2d, but was prevented by 
 a blockading fleet from passing to Buenos 
 Ayres. She waited till the blockade was 
 taken off, October 4th, and sailed for Buenos 
 Ayres. Held, the policy ceased when she was 
 two months at Montevideo. Doyle v. Powell, 
 4 B. & Ad., 267 ; 1 N. & M., 678. 
 
 14. Beginning the adventure upon the said 
 ship at and following her departure from 
 Canon Water, and until she shall aiTive in 
 safety in the port and harbor of Montrose, 
 during her stay there, and from thence until 
 she shall arrive in safety in any port or har- 
 bor of the Frith Of Forth. She was driven 
 by stress of weather into Anstruther, within 
 the Frith of Forth, and proceeded to Higgins 
 Nook, where master and crew went ashore on : 
 Sunday, in the afternoon, and did not return 
 till Thursday following, when she was found 
 under water. Held, the risk was at an end 
 when she arrived at Anstruther. Mdlvill v. 
 ateaart, 3 F. D., 254. 
 
 15. From London to port or ports in the 
 river Platte, until her arrival at her last port 
 of discharge. The master intended to dis- 
 
 521 
 
1043 
 
 POLICY (OF THE). 
 
 1044 
 
 When it does not terminate. 
 
 charge at Buenos Ayres. After he passed 
 Maldenoda, lie heard that Buenos Ayres was 
 in the hands of tlie enemy, and therefore he 
 put into Montevideo, intending to discharge, 
 there ; hut after taking out a part he found the 
 market was not favorable, and formed the in- 
 tention to proceed with the balance to Buenos 
 Ayres, if that should be practicable. She was 
 lost at Montevideo by perils of the sea while 
 discharging some of the cargo. Held, Monte- 
 video was her last port of discharge; that the 
 risk had terminated, and the insurers were 
 not liable for the loss. Brown v. Vigne, 12 
 £ast,283. 
 
 1 6. She arrived in safety at her moorings, 
 September 1st, and there remained till the 27th, 
 when she was seized for smuggling. It ap- 
 peared the master had committed barratry by 
 smuggling on his own account. Meld, the in- 
 surers were released when the vessel was 
 moored twenty-four hours. Lockyer s. Offley, 
 1 Term, 252. 
 
 1 7. "At and from London to Calcutta, and for 
 thirty days after arrival, until she hath moored 
 at anchor twenty-four hours in good safety." 
 She sustained, damage at sea, and was kept 
 afloat by constant pumping; arrived at Cal- 
 cutta and safely moored October 28, 1866. 
 While her cargo was being unloaded, it was 
 necessary to continue the work at the pumps. 
 It was all discharged November 8tli, and she 
 was taken from her moorings to a dry dock 
 for survey and repairs November 12th, where 
 she was destroyed by fire December 5th, while 
 the repairs were being made. Hdd, insurers 
 were discharged. Lidgett v. Secretan, 5 L. R. 
 C. P., 190; 39 L. J. C. P., 196; 18 W. E., 692; 
 22 L. T. (N. S.), 272. But upon a sulwequeut 
 trial it was held, that insured were entitled to 
 recover the diminished value of the vessel, 
 caused by the sea peril ; and in ascertaining 
 that sum, the expenses which would have 
 been incurred to put the vessel in a proper 
 state of repair must be taken into account, but 
 the court refused to decide whether or not a 
 deduction of one-third new for old should be 
 made from the required repairs, it having 
 been made to appear that she was an iron ves- 
 sel. 6 L. B. C. P., 616 ; 40 L. J. C. P., 257 ; 24 
 L. T. (N. S.), 942; 19 W. R., 1088. 
 
 18. "At and from Liverpool to Quebec, 
 •hence to her discharging port in the United 
 JCingdom, and nntil she shall be moored at 
 anchor twenty-four hours in good safety." 
 
 She arrived in the Mersey September 4th, and 
 anchored at the Bell Buoy. Next morning 
 she was towed up abreast of Wallasey Pool, 
 but her great draft prevented entrance. She 
 was anchored outside the pool. The master 
 went to Liverpool, reported the vessel, and 
 engaged lumpers to discharge the cargo, and . 
 to carry it into the pool. The crew were dis- 
 charged as usual on the ship's arrival. The 
 deck cargo was taken off, and a large portion 
 under deck was discharged through the stem 
 port She fell over September 14th, and sus- 
 tained damage. J7e2(2, she had been moored 
 in safety for more than twenty-four hours at 
 her port of discharge. Whitwell t. Harrison, 
 2 Exchr., 127; 18 L. J. Ex., 465. 
 
 19. From Pomaron to Newcastle-on-Tyne, 
 and for fifteen days there after her arrival. 
 She arrived at Newcastle, discharged cargo, 
 and was chartered to carry a cargo of coals to 
 Gibraltar. She took in a small part as stiffen- 
 ing, and was moved to a loading place within 
 the port to complete loading. Within fifteen 
 days of her arrival at Newcastle she was dam- 
 aged in a gale. Held, the substantial purpose 
 of the policy being accomplished by the ter- 
 mination of the voyage insured, the policy 
 had ceased to have any effect when this loss 
 occurred. Gambles v. Ocean Marine Ins. Co., 
 1 Ex. D., 8. 
 
 20. On goods to London, and until safely 
 landed there. Insured sent his lighter along- 
 side, they were put into it, and damaged l>efore 
 put ashore. Held, they were in possession of 
 the insured, and insurers were released. Spar- 
 row V. Oaruthers, 2 Strange, 1236. 
 
 XT^. When it does hot TEEimfATE. 
 
 1 . Ship insured for a whaling voyage, risk 
 to continue " nntil she be arrived and moored 
 at anchor twenty-four hours in safety." Shal- 
 low water prevented her from reaching the 
 wharf to which she was destined. She came 
 to anchor and commenced lightening to ena- 
 ble her to reach it, and was there destroyed by 
 flre. Held, the policy was in force. Meigs z. 
 Mviuai Ins. Go., 2 Cush., 439. 
 
 2. When insurance is made to a port or 
 ports of discharge, the voyage terminates at 
 the port where the cargo is substantially dis- 
 charged. Upton 0. Saiem Commercial Ins. Co., 
 8 Met., 605. 
 
1045 
 
 POLICY (OF THE). 
 
 1046 
 
 When it does not termmate. 
 
 it. On goods to Sota la Marina. The town 
 is distant twenty leagues from the roadstead. 
 All vessels come to anchor outside the bar 
 and send their cargo up in launches. Hdd, 
 the insurers were liable until the goods arrived 
 at Sota la 31arina. Osacar v. Louisana State 
 Ihs. Co., 17 Martin (La.), 386. 
 
 4. From Sisal to Havana. She arrived at 
 Havana and was ordered to anchor close un- 
 der the Moro Castle, because a frigate was 
 about entering the harbor. The next day, 
 while attempting to cross the harbor and 
 reach the usual place of dischai-ge she struck 
 on a shoal and received damage. HtUd, a loss 
 within the policy. Zacharie t. Orleam Ins. 
 Co., 17 Martin (La.), 637. 
 
 5. She was insured for a period of three 
 months; but she grounded before the policy 
 expired, and the greater portion of the expense 
 was made for the purpose of getting her off 
 subsequent to expiration of the policy. Held, 
 it was not material whether the work was 
 done dnring the continuance of the policy or 
 afterwards, the expenditure actually made was 
 only evidence of the damage sustained; it 
 was necessary to place the boat in her proper 
 element that she might be valuable, and what- 
 ever outlay was necessary for that purpose 
 and to repair the injury, was a loss within the 
 policy. Firemen's Ins. Co. v. PoweU, 13 B. 
 Mon., 311. 
 
 6. " On cargo, beginning the adventure upon 
 said property from and immediately after the 
 loading thereof, and so shall continue and en- 
 dure until the arrival, etc., at the port of desti- 
 nation, and with reasonable time allowed to 
 discharge the cargo." She arrived at St. Louis 
 on the morning of May 17th; 122 bales were 
 put out on the levee, and the remainder left on 
 board. A fire occurred at night which de- 
 stroyed all that was in the boat and on the 
 levee. The consignees had notice of the ar- 
 rival, and one of them came down to the levee 
 when the cargo was being landed. Held, a 
 landing of a part of the cargo insured did not 
 exonerate the insurer from the loss, for the 
 carrier could not split up the liabilities of in- 
 surer or the rights of insured ; the duty of the 
 carrier was to land the property safely within 
 a reasonable time, and that was not done by 
 landing a part only ; it was not enough that 
 the goods be carried to the place of delivery, 
 but the carrier must deliver them; and no 
 delivery is made until the carrier has dis- 
 
 charged himself of the custody of the goods, 
 in his character as common carrier. Fletch- 
 er V. St. Louts Marine Ins. Co., 18 Mo., 
 198. 
 
 7. Policy to the southern whale fishery 
 during her stay, and fishing there thence to 
 London. She was stranded in "Western Cove 
 on the coast of New Holland. All her stores 
 and provisions, and 1,236 seal skins, were dam- 
 aged by sea water and landed. She was re- 
 paired to proceed on her voyage, and 817 of 
 the damaged skins were sent home in another 
 vessel; if any of the damaged skins had been 
 stowed with sound shins, they would have in- 
 fected and damaged the latter, and therefore 
 they could not safely have been kept on board. 
 On arrival home they produced double the 
 amount of freight She was afterwards totally 
 lost. Reld, sending home a part of what the 
 ship had taken, was not a termination of the 
 voyage. Phillips v. Champion, 6 Taunt, 3; 
 s. c, 1 Marsh., 402. 
 
 8. She was insured to port or ports of dis- 
 charge on the coast of Labrador. None of the 
 cargo was taken out except such as was needed 
 for immediate use. The crew was employed in 
 fishing for two months after her arrival there. 
 The custom was proved, that vessels in the 
 Labrador and Newfoundland trade keep 
 their cargoes on board for several months. 
 HeUL the insurers were liable. Noble t. Ken- 
 noway, 2 Doug., 510. 
 
 9. On goods from St Petersburg to Lon- 
 don, "Until they shall be discharged and 
 safely landed." She arrived in the Thames, 
 and insured paid a public lighterman to land 
 them. It was the constant practice for per- 
 sons in the Russian trade to do so. There 
 was a loss while the goods were in the lighter. 
 Held, they were not safely landed when the 
 loss occurred, and that the insurers were 
 liable for it Hurry v. Royal Exchange 
 Ass. Co., 2 B. & P., 430; 3 Esp., 289; s. 
 c, 3 B. & P., 308; Sucker «. London Ass. 
 Co., 2 B. & P., 432. 
 
 10. Before the policy expired the ship 
 was stranded, got off and carried into harbor, 
 where she was examined and sold for account 
 of whom it might concern ; but no abandon- 
 ment was made. Held, the proximate cause 
 of the loss, the stranding, having taken place 
 during the term insured, the insurers were 
 liable for a partial loss. Knight v. FaitTi, 15 Q. 
 B., 649 ; 19 L. J. (N . S.), Q B., 509 ; 14 Jur., 1 114. 
 
 523 
 
lOiT 
 
 PORT OF DISCHARGE. 
 
 1048 
 
 What is. 
 
 XVI. "When it ceases akd eevives. 
 
 1. Insured made repairs on the property- 
 insured ; the policy prohibited any act which 
 should increase the hazard. Held, the policy 
 was suspended, while the repairs were pro- 
 gressing, and when they ceased the company's 
 liability recommenced. Insurance Go. of 
 North America o. MeDowell, 50 111., 120. 
 
 2. The promises had been used during the 
 term insured for a purpose more hazardous 
 than was permitted by the contract; but the 
 policy provided that: " Thenceforth so long 
 as the buildings shnll be appropriated or used 
 for any of the purposes aforesaid, these prem- 
 ises shall cease and be of no effect." Held, 
 the policy was not void to all intents and pur- 
 poses by such prohibited use or occupation, 
 but it was to have no force or effect during 
 the time they were used for a purpose pro- 
 hibited. United States Fire and Marine Ins. 
 Co. c. Kimherly, 34 Md., 224. 
 
 3. The premises were partly used as a bath 
 and ice house. Subsequently insured con- 
 verted them into an oyster saloon, putting in 
 stoves for heating. The policy was issued 
 upon an application which stated they were 
 used as a mineral water factory and bath 
 house. Hdd, though the change of occupancy 
 increased the risk, the plaintiff^s right to re- 
 cover would not be defeated, unless that con- 
 tinued up to the time the fire occurred, because 
 the charter provided : " The policy shall cease 
 so long as the same shall be'so appropriated, 
 applied or used." Cumberland Valley Mutual 
 Protection Go. v. Bchetl, 29 Penn. St., 31. 
 
 4. Policy on stock in trade, consisting of 
 dry goods. Use of the premises for carrying 
 on or exercising any business, hazardous or 
 extra hazardous, was forbidden. Seld, the 
 term " premises " referred to the store, and not 
 to the goods in it; that the restriction does 
 not extend to the keeping of a single article 
 denominated hazardous or extra hazardous, 
 which was a part of the dry goods stock in 
 trade; that if cotton in bales, an article pro- 
 hibited, had been kept in the store within the 
 period covered by the policy, that would not 
 be an absolute forfeiture; that the policy 
 would be suspended and of no effect, so long 
 only as the article remained in the store. 
 Moore v. Protection, Ins. Co., 29 Me., 97. 
 
 5. Stipulated : " So long as the same shall 
 be appropriated, applied or used for certain 
 
 524 
 
 purposes prohibited, tliese presents shall 
 cease and be of no force or effect." Seld, 
 whenever a prohibited use was discontinued, 
 the policy revived. To give the language 
 any other construction would be taking away 
 all meaning from the words "so long." 
 Lounsbury v. Protection Ins. Co., 8 Conn., 459. 
 6. On steamboat, from April 4, 1862, to 
 April 4, 1863. Stipulated: "With permission 
 to navigate the Mississippi and Ohio rivers 
 and their tributaries, usually navigated by 
 boats of her class, the Missouri, Arkansas, 
 White, Red, and Yazoo rivers excepted." She 
 left St. Louis for Leavenworth on the Mis- 
 souri May 24, 1862, and returned June 1, 1862, 
 in complete safety. She was afterwards lost. 
 Held, a time policy is not subject to deviation, 
 for it insures no specific voyage; the exception 
 as to certain rivers named did not amount to a 
 prohibition or warranty, but only suspended 
 the liability of insurers when she was in the 
 excepted waters; if it had been the intention 
 that the entering of any of the excepted 
 waters should defeat the policy, that should 
 have been clearly expressed ; and as it was not, 
 the construction must be against the insurer. 
 Oreenleaf v. St. Louis Ins. Co., 37 Mo., 25. 
 
 PORT OF DISCHARGE. 
 
 (See In Fobt.) 
 
 I. What is. 
 
 II. NOT. 
 
 III. NOT EVIDENCE OF. 
 
 I. What is. 
 
 1. Warranted "Free from capture or seiz. 
 ure in the ship's port or ports of discharge." 
 She arrived in the outward road of Pillau, a 
 bar harbor, where large ships of her size were 
 obliged to discharge part cargo into lighters, 
 to enable them to cross the bar. She anchored 
 two miles further out than ships usually lie 
 for that purpose. The master went ashore to 
 report her and to obtain permission to dis- 
 charge. He was accompanied on his return 
 by Prussian soldiers and a pilot, who took pos- 
 session of her, discharged part of her cargo 
 into lighters, and carried her into the harbor. 
 
1049 
 
 PORT OF DISCHARGE. 
 
 1050 
 
 What is not. 
 
 •where the whole was confiscated. Held, a 
 seizure in the ship's port of discharge. Dal- 
 gleish V. Brooke, 15 East, 295. 
 
 2. Warranted " Free of capture or seizure 
 in her port or ports of discharge." She ar- 
 rived in the river Jade, and the supercargo 
 proceeded to Varrei for instructions as to 
 where the goods might most safely be landed. 
 She lay off and on for him and was seized. 
 Held, a seizure in port. Jarman o. Ooape, 13 
 East, 394; s. c, 2 Camp., 613. 
 
 3. On freight from New York to a port of 
 discharge in Australia. She arrived at Gee- 
 long, in the bay of Port Philip, discharged 
 that part of the cargo destined for that place ; 
 proceeded thence to Hobson's Bay, twenty 
 five miles from Geelong, but within the bay 
 of Port Philip, an anchorage ground in the 
 port of Melbourne, to which the rest of the 
 cargo was destined, where ship and cargo 
 were destroyed by fire. Hdd, before the de- 
 fendant could be bound by a usage to treat the 
 bay of Port Phillip as a single port of dis- 
 charge, taking Geelong, Hobson's Bay and 
 Melbourne as merely separate landing places 
 within It, the usage must appear to have been 
 uniform, settled and well understood at the 
 time the contract was made. Fay v. Alliance 
 Ins. Co., 16 Gray, 455. 
 
 4. Warranted free from capture and seizure 
 in the port of discharge. She was destined 
 for Rugenwald, and arrived within two miles 
 and a half of the harbor, cast anchor and sig- 
 naled a pilot. A pilot boat came out, but 
 brought persons who seized her, and she was 
 subsequently condemned. Held, a seizure 
 within the port of discharge. Oom v. Taylor, 
 3 Camp., 204; Maydew v. Scott, id., 205. 
 
 II. "What is not. 
 
 ] . " From New London to Wilmington, 
 N. C, thence to one or two ports in England 
 or Ireland, with liberty to go to Lisbon and to 
 touch and trade a SL Ubes, and back to her 
 port of discharge in the United States." She 
 sailed on the voyage, went to Wilmington, 
 thence to Ireland, thence to St. Ubes, where she 
 took a cargo of salt and cleared for New York, 
 at which place she arrived in the evening of 
 June 21st. The supercargo posted a letter 
 that evening to owners at Hartford, advising 
 them of the arrival, and asking instructions. 
 
 He received directions the 25lh to proceed 
 immediately with ship and cargo to Mid- 
 dletown, Conn. It would have been neces- 
 sary to lighten her at the mouth of the Con- 
 necticut, therefore, about three thousand 
 bushels of salt were taken out and put into 
 lighters at New York. She sailed witli the 
 first fair wind on the 30th, having first taken 
 a pilot In going through Hell Gate she was 
 thrown upon the rocks, and so badly damaged 
 that the whole cargo was washed out and lost, 
 and while in that condition she was abandon, 
 ed to insurers. Held, New York was not her 
 port of discharge ; that the delay at New York 
 was not unreasonable; that putting the salt 
 into lighters was not a breaking of bulk ia 
 New York; hence, insurers were liable for the 
 loss. King v. Mtddletown Ins. Co., 1 Conn., 
 184; Same v. Hartford Ins. Co., id., 333; Sage 
 v. Middletown Ins. Co., id., 239. 
 
 2. On hay laden upon flatboats, from Law- 
 renceburg to New Orleans. Stipulated: "It 
 shall be lawful to touch at intermediate points, 
 with the privilege of coasting and transacting 
 any lawful business connected with the voy- 
 age." They reached Freeport, three miles 
 above New Orleans, June 24, 1846, at which 
 place all hands, except two, were paid off and 
 discharged. It was the custom to stop and 
 exhibit hay at Freeport, remain there for some 
 time in order to effect sales, and then drop 
 down to New Orleans and deliver it. Boats 
 were prohibited from keeping their cargoes of 
 hay in New Orleans longer than four days, 
 but were compelled after that time to sell it. 
 On the evening of July 3d, a violent storm oc- 
 curred, which desti-oyed boats and cargo. 
 Held, Freeport was not the termination of the 
 voyage, hence the loss was within the policy. 
 Orant s. Lexington Ins. Co., 5 Ind., 23. 
 
 3. " Warranted free fi-om capture or seizure 
 in the ship's port or ports of discharge." She 
 came to anchor in the open sea, off the south 
 point of the island of Poehl, about seven Eng- 
 lish miles from Wismar, the port of des- 
 tination. Soldiers put out to her in a boat, 
 who took command, and brought her to an- 
 chor in the roads, but not in the harbor; part 
 of her cargo was discharged into lighters, all 
 of which, together with the vessel, was carried 
 into port and confiscated. Held, it was not 
 capture in the ship's port of discbarge. Mel- 
 lish 9 Stanxforth, 3 Taunt., 499; Levy v. 
 Vaughan, 4 id., 367; Keyser v. Scott, id., 660; 
 
 525 
 
1051 
 
 PRELIMINARY PROOFS— PREMIUM NOTES. 
 
 1052 
 
 What is a defense. 
 
 Reyner e. Pearson, id., 662 ; Lenin v. Neumham, 
 \ii.,t%'ii;Reyner V.Hall, id., 725. 
 
 4. Action upon two policies, from London 
 to Kingsburg, or any other port In the Baltic, 
 " free from seizure in port of discharge." She 
 was in the open roads oflf Pillau, where she 
 was taken by a Prussian military force and 
 condemned, on the ground that she came from 
 England. Held, when captured, she was not 
 in herport of discharge. Anthony v. Moline, 5 
 Taunt., 711 ; Schnakoneg o. Andrews, 5 Taunt., 
 716. 
 
 III. What is not evidence of. 
 
 The master discharged the seamen at New 
 Tork, and employed others. Held, this was 
 not evidence tending to prove that New York 
 was her port of discharge. King v. Hartford 
 Ins. Co., 1 Conn., 333. 
 
 PRELIMINARY PROOFS. 
 
 (See Proofs op Loss.) 
 
 PREMIUM NOTES. 
 
 I. "What is a defense. 
 
 II. NO DEFENSE. 
 
 III. Of pleading. 
 
 I. What is a defense. 
 
 1 . Where the premium note is surrendered 
 in good faith, the receiver of an insolvent in- 
 surance company cannot subsequently com- 
 pel the maker to contribute to losses outstand- 
 ing and contested at the time of the surrender. 
 Hyde <o. Lynde^i N. Y., 387. Also, when an 
 adjustment is made, and the policy and notes 
 surrendered, it is binding and cannot be im- 
 peached, except for fraud or mistake. Ibid. 
 
 2. If the policy is void o5 initio, the pre- 
 mium notes given for it will be void, because 
 there was no consideration for them. Frost v. 
 Saratoga Mut. Ins Co., 5 Denio, 154. 
 
 3. Verdict and judgment was for insurer, 
 on the ground that the vessel was unseawor- 
 thy^ Held, the present action would furnish 
 
 526 
 
 a defense against a note given for the pre- 
 mium ; and if judgment should be recovered 
 upon the note and satisfied, the insured could, 
 in an action for money had and received, re- 
 cover back the money paid. Penniman v. 
 Tucker, 11 Mass., 66. 
 
 4. An act of the legislature provided that it 
 should take effect when accepted by the mem- 
 bers of said corporations (meaning the mem- 
 bers of the several mutual fire insurance com- 
 panies). Held, a member who did not ex- 
 pressly assent to it is not bound by it Ham- 
 ilton Mut. Ins. Co. B. Hobart, 2 Gray, 543. And 
 where the corporation seeks to recover assess- 
 ments on a deposit note against a member, it 
 must prove not only the making of the assess- 
 ments, but that they were made pursuant to 
 the act of incorporation and by-laws. Atlantic 
 Mut. Ins. Co. V. Fitepatrick, 2 id., 279. 
 
 5. The charter of a life insurance company 
 made all the persons insured members of the 
 company; and a by-law, in pursuance of the 
 charter, permitted the company, when the 
 premium exceeded fifty dollars, to take a 
 member's note for three-fourths of it, payable 
 in twelve months, subject to assessments if 
 required. Held, although the note was abso- 
 lute on its face, it was a security for losses 
 upon assessments regularly made for that pur- 
 pose, and before a recovery could be had, it 
 must appear tliat assessments were regularly 
 made in conformity with the charter. Mutual 
 JBenefU Life Ins. Co. o. Jarvis, 22 Conn., 148. 
 
 6. Suit upon a premium note. Plea: "The 
 defendant sold and conveyed the property 
 July 12, 1843, and he paid all assessments up 
 to that date." Held, good, notwithstanding a 
 provision in the charter requiring the policy 
 to be surrendered. Indiana Mut. Ins. Co. «. 
 Connor, 5 Ind., 170. 
 
 7. Suit by a mutual company on premium 
 notes. Held, if the notes were given for pre- 
 miums on policies issued by the company in- 
 suring real estate, to which insured never had 
 any title whatever, the policy was void, and 
 the premium notes were without considera- 
 tion. JBersch v. Sinnissippilns. Co., 28 Ind., 64. 
 
 8. Suit upon premium note. The maker 
 answered that the agent of insurer proposed, 
 for the sum named, to insure his house against 
 loss by fire, and agreed to deliver a policy not 
 subject to any further assessments for premi- 
 ums ; that the agent delivered one and falsely 
 represented that it conformed to the agree- 
 
1053 
 
 PREMIUM NOTES. 
 
 1054 
 
 What is no defense. 
 
 ment, but upon examination it professed to 
 make the insured liable for assessments ; that 
 the maker of the note was illiterate, and could 
 read and write with great difficulty, as the 
 agent well knew; that he was wholly ignor- 
 ant of any liability for assessments until de- 
 mand was made. And he oflfered to surrender 
 the policy for it to be canceled. Held, a suffi- 
 cient defense to the action. Keller p. Bquit- 
 aUe Ins. Co., 28 Ind., 170. 
 
 9. Action on a premium note executed to 
 a mutual fire insurance company. Beld, 
 representations made by the company's agent 
 as to when assessments would be made can- 
 not be heard as a defense to a suit on the note. 
 (Boland c. Whitman, 83 Indr, 64.) But if the 
 agent, by authority of the directors represented 
 that the company was solvent and able to pay 
 losses, and in consequence of such representa- 
 tions, insured contracted and executed such 
 premium note, the maker may defend tlie 
 action, if the representations were false. 
 Whitman v. Meigxner, 34 Ind., 487. 
 
 10. The report of the receiver showed the 
 amount of premium note; but it did not show 
 that the claims for losses had been adjusted, or 
 that they, were justly due to the parties who 
 claimed ; nor did it show that the receiver, or 
 that the court appointing him, had passed up- 
 pon the claims. Held, the action could not be 
 maintained. Manlme i). Burger,Z9 Ind., 211. 
 
 11. The premium note was made payable 
 in such portions and at such times as the di- 
 rectors of said company may, agreeably to the 
 charter and by-laws, require. Held, before a 
 recovery could be had it must appear that 
 payment was required by the board of direct- 
 ors, and that losses and expenses had been in- 
 curred. Warner o. Beem, 36 Iowa, 385. 
 
 12. The premium note executed by a policy 
 holder to a mntnal insurance company, prom- 
 ised to pay the sum therein named, in such 
 portions, and at such time or times as the 
 directors may, agreeably to their charter and 
 by-laws, require. Held, plaintiff must allege 
 and prove that losses and expenses had oc- 
 curred. American Im. Co. V. Schmidt 19 Iowa 
 502. 
 
 II. "What is no defense. 
 
 1. The charier of the company (mutual) au- 
 thorized the making of policies for a specified 
 premium, to be paid in cash. The insured 
 
 gave a note for the premium. Held, the com- 
 pany was not prohibited from extending the 
 time for the payment of cash premiums; the 
 note was a mere regulation extending the pay- 
 ment of the premium for the accommodation 
 of the insured, and the company had the right 
 to recover upon it Cary e. Nagel, 2 Biss., 244. 
 
 2. The charter of this mutual company 
 authorized, for the better security of dealers, 
 acceptance of premium notes in advance from 
 persons intending to take policies, and to 
 negotiate them in the course of business, and 
 to pay the makers a compensation, not exceed- 
 ing five per cent, per annum on so much of 
 the notes as should exceed the premiums that 
 might be actually earned. Held, such notes 
 were valid for their face, although the pre- 
 miums actually earned were less than the note. 
 And it seems they are valid by force of the 
 statute; therefore, a partial failure of considera- 
 tion could not be set up, but if a consideration 
 were necessary, the agreement entered into by 
 all the makers, the advantages contemplated, 
 and the per centum to be paid them, constitute 
 a good and sufficient consideration. Derais- 
 mes V. Merchants Mut. Ins. Co., 1 N. T., 371. 
 
 3. Action upon note. Held, as a security 
 note, it is valid for its face, though made pay. 
 able to the order of the maker and not in- 
 dorsed by him ; also, if the note wafe given by 
 the maker to enable him to vote at an election 
 of trustees, and with intent or expectation on 
 his part that it would appear as one of the as- 
 sets of the company in the annual statement, 
 and would stand there for the protection of 
 dealers, and that it did so appear with the 
 maker's approbation, or with his knowledge 
 without objection, he had no right to with- 
 draw it Brouwer v. Hill, 1 S.indf., 629. 
 
 4. Action upon note given in pursuance of 
 company's charter for the security of dealers. 
 Held, the company's insolvency is inadmis- 
 sible, and no defense to the action; nor is it 
 of any consequence that the note is a renewal 
 note, and past due. How v. Allen, 1 Sandf., 
 171, n. 
 
 5. Action on a premium note. Held, the 
 declaration of the president of the company 
 and of the agent, tending to impair the valid- 
 ity of the note, were not admissible. Hack- 
 ney d. Allegheny County Mitt. Ins. Co., 4 Penn. 
 St, 185 ; Brouwer v. Appleby, 1 Sandf., 158. 
 
 6. Members of a mutual insurance com- 
 pany sued upon their premium notes. Held, 
 
 6^7 
 
1055 
 
 PREMIUM NOTES. 
 
 1056 
 
 What is no defense. 
 
 they were estopped to deny the organization 
 of the corporation ; nor could they be heard 
 to say that the notes were given in advance 
 without any insurance for them. Brouwer v. 
 Applebff, 1 Sandf., 158. 
 
 7. The maker of a security note is estopped 
 to deny the organization of the company. 
 Brouwer v. Hill, 1 Sandf., 629. 
 
 8. A note made to mutual Lnsurance com- 
 pany for the security of dealers, the company 
 being authorized by its charter to negotiate it 
 in the course of business. Beld, a transfer of 
 it by the president was valid, because he was 
 authorized by the by-laws to make contracts 
 and transact the ordinary business of the 
 company. Aspinwall v. Meyer, 2 Sandf., 180. 
 
 9. Premium notes made and delivered in 
 pursuance of an agreement between the mak- 
 ers and the company, recited : " It was expe- 
 dient to increase the subscription notes to the 
 ctimpany; " and they undertook to give such 
 notes for the sums set opposite their respective 
 names for the protection of persons to be in- 
 sured, and to encourage others to do their 
 business with the company, and which were 
 to be in advance for premiums on policies to 
 be taken thereafter. Held, the notes were 
 valid for their face in the hands of the receiv- 
 er, and it was no defense to them to show that 
 the makers took no policies. Brown v. Crooke, 
 4 N. Y., 51. 
 
 10. A deposit note recited that the policy 
 had been received. SelA, prima facie evi- 
 dence that a policy had been issued, and in a 
 suit upon the note for an assessment made, the 
 insured was not allowed to show that he had 
 no insurable interest in the property insured. 
 New EngUmd Mutual Fire Ins. Co. o. Bdknap, 
 9 Cush., 140. 
 
 11. Assessment upon a premium note made 
 at a regular monthly meeting of the president 
 and directors, pursuant to by-laws; but no no- 
 tice was given to directors that the subject of 
 laying such assessment would be considered 
 at that meeting. Held, the company was not 
 obliged to show affirmatively that the direct- 
 ors were previously notified that an assess- 
 ment would be laid at that meeting; their 
 duties being marked out by the charter and 
 by-laws, no special notice was necessary *o 
 them. They were presumed to know, and to 
 come prepared to act. Bay State Mutual Fire 
 Ins. Go. V. Sawyer, 13 Cush., 64. 
 
 12. Deposit note made subject to the by- 
 528 
 
 laws of the company. Held, it was part of the 
 absolute funds of the corporation, and subject 
 to pay losses and expenses which accrued be- 
 fore the maker became a member of the cor- 
 poration. Long Pond Mutual Fire Ins. Co. t. 
 Houghton, 6 Gray, 77. 
 
 13. The defendant neglected to pay an as- 
 sessment. The charter provided that the fail- 
 ure should render the whole of the note due 
 and payable. Held, the action could be main- 
 tained for the whole note ; and it was unneces- 
 sary to declare specially. Jones v. Sisson, 6 
 Gray, 288. 
 
 14. Fraudulent representations by the offi- 
 cers of an insurance company, concerning its 
 solvency and the payment of capital stock, 
 are no defense to a suit brought upon a pre- 
 mium note, unless the representations were 
 held out at the time the note was made, for the 
 purpose of obtaining it. Fogg v. Pea, 10 Gray, 
 409. 
 
 1.5. Action on a premium note. Defense: 
 Insurers were insolvent before the expiration 
 of the policy. Held, no defense to the action. 
 Sterling v. MereajUile Mut. Ins. Co., 32 Fenn. 
 St., 75. 
 
 16. Insured gave his premium note, paya- 
 ble in such portions and at such times as the 
 insurer might, agreeably to the act of incorpo- 
 ration, require. The act provided, in case in- 
 sured failed to pay an assessment, the whole 
 note might be collected and paid into the 
 hands of the treasurer, and retained to meet 
 losses till the expiration of the policy. In- 
 sured took a policy for six years. The subject 
 insured was destroyed by fire within the second 
 year, and the amount insured paid. HeW^ in- 
 sured was liable to pay all lawful assessments 
 on the note for six years, as though the property 
 had not been destroyed. New Hampshire Mu- 
 tual Fire Ins. Co.d. Rand,%^ N.H., 428. And 
 the insurer was not bound to make good any 
 damages which occurred within the term 
 mentioned in the policy, exceeding the sum 
 limited in it. Ihid. Norwasitpropertoshowa 
 practice of the company to sun-ender the pre- 
 mium-notes upon payment of its policy. Ibid. 
 17. Policy and premium note for it are in- 
 dependent contracts, and a vote by the com. 
 pany, that if assessments are not punctually 
 paid, the policy to which they have reference 
 shall be suspended, is invalid, and is no de- 
 fense to an action brought upon the premium 
 note unless it appeared that the maker of the 
 
1057 
 
 PRESERVATION OP- PROPERTY. 
 
 105S 
 
 Of the dause " to sue, labor and travel for." 
 
 note assented. Jfew England Jfutual Fire Ins. 
 Co. ». BvMer, 84 Me., 451. 
 
 18. The defendants gave tie company an 
 advance note, suhject to assessments at an 
 equal per cent, with all other advance notes. 
 HdA, the assessment was to be made on all 
 the advance notes which remained uncanceled, 
 and the makers were liable for the face of the 
 note, if required to pay tlie debts of the com- 
 pany. Maine Mutual Marine Ini. Go. v. Swtn- 
 (on, 49 He., 448. 
 
 19. A sale or mortgage of property insured 
 by the Indiana Mutual Fire Ins. Co. destroyed 
 the company's lien, and avoided the policy; 
 but the insured was personally liable upon 
 the premium note until tlie policy was actu- 
 ally surrendered and payment made tor all 
 assessments for losses sustained before the 
 surrender. Indiana Mutual Fire Int. Co. t. 
 Co^uiUard, 3 Ind., 645. 
 
 80. Promissory note given for premium. 
 Jnstired sought to avoid it by showing a fail- 
 ure of consideration, founded upon the fact 
 that the company was insolvent when the 
 note was made and delivered. Held, the 
 maker of the note could not retain the bene- 
 fits of the policy, and refuse to pay the premi- 
 um; if he deemed the policy worthless he 
 ought to have surrendered it; having failed to 
 do so, he must be held to have elected to retain 
 it for its value, and he was, therefore, bound 
 to pay the premium. Oraff «. Simons, 58 Bl., 
 44a 
 
 21. A member of a mutual company, sued 
 for an assessment upon his deposit note, can- 
 not defend on the ground that he and his asso- 
 ciate corporators have not complied with the 
 provisions of their charter. Trum2nM County 
 Mutual Fire Ins. Co. v. Horner, 17 Ohio, 407. 
 
 22. The mere fact that the company was in- 
 solvent when the policy was made does not 
 authorize insured to repudiate it as a contract 
 and refuse to pay the premium (citing Bidault 
 e. Wales, 19 Mo., 36). Clark o. Middleton, 19 
 Ho., 53. 
 
 23. The insurer issued to defendant a life 
 policy for $5,000, for the term of seven years, 
 annual premium of $103.70, to be paid March 
 14lh in each year. The defendant paid sev- 
 eral premiums, and on Matrch 14, 1855, gave 
 his promissory note to insurer for $245.03, 
 which included the premium for the ensuing 
 year, and balances due in prioi years. In- 
 surer became insolvent, went into liquidation 
 
 34 
 
 and notified defendant that he would be no 
 longer bound under tlic policy. After all 
 debts were discharged, the insurer's assignee 
 brought suit to recover the amount of the 
 note. Held, no recovery could he had on it 
 Bostiek v. Maxey, 5 Sneed, 173. 
 
 III. Of pleading. 
 
 1. The complaint alleged the organization 
 of the company, the giving of the note for a 
 policy, assessments on the note, notice and de- 
 mand for their payment, legal proceedings by 
 which the franchises of the company were de- 
 clared forfeited for insolvency, and the ap- 
 pointment of a receiver. Held, a good com- 
 plaint. Boland e. Whitman, 33 Ind., 64; 
 Whitman c. HaU, -34 id., 423 ; Sam^ t. Ammons, 
 id., 423; Manlone c. Scarce, id., 433. 
 
 2. In an action by a receiver for assess- 
 ments, all the facts necessary to show a liabil- 
 ity on the premium notes must be stated in the 
 complaint. Mardove «. Burger, 38 Ind., 311. 
 
 PRESERVATION OF PROPERTY. 
 
 Of the clause "to sue, labob and 
 travel foe." 
 
 1. " Warranted neutral property." Stipu- 
 lated : " In case of loss or misfortune, it shall 
 be lawful for the insured, etc, to sue fbr labor 
 and travel about the defense, safeguard and re- 
 covery of the property." Hdd, insured was 
 not bound to defend the property against an 
 attempt to condemn it; that they might aban- 
 don on receiving notice of tlie capture; and 
 that the abandonment, if lawlul, made the 
 master the agent of the insurer. Oardere t>. 
 Columbian Ins. Co., 7 Johns., 514. 
 
 2. In case of any loss or damage, either party 
 " shall sue, labor and travel for, in and about 
 the safeguard and recovery of the goods, or 
 any part thereof, to the damages whereof, the 
 insurers will contribute according to the sum 
 insured, warranted ftee from average unless 
 general." The cargo was hides, a portion of 
 which were submerged, and a part of those 
 submerged were rescued by the insured at an 
 expense of $6,000. Held, the two clauses must 
 be read together; tliat the former was in 
 tended to apply only to losses or iojuries for 
 
 539 
 
1059 
 
 PEESUMPTIONS. 
 
 1060 
 
 What -will be preBumed, 
 
 ■which the insarers ■would have been liable; 
 that insurers would not have been liable for 
 the loss of all the hides in the lighter; hence, 
 Ihey ■were not liable for expenses incurred in 
 saving any part of them. Biays v. Ghempedke 
 Ins. Co., 7 Cranch, 415. 
 
 3. That clause in the policy, which gives 
 the right to the insurer and insured to act in 
 recovering, saving and preserving the property 
 insured, applies only to its relief from present 
 peril and temporary care ; it gives no right to 
 the insurer to take possession of the vessel and 
 make permanent repairs. Glouceiter Ins. Co. 
 V. Younger,^ Curtis, 322. 
 
 4. Stipulated: "In case of loss or mis- 
 fortune, the insured shall have the right to 
 labor in and about the defense and recovery 
 of the property, to the charges whereof, the in- 
 surers will contribute in proportion as the 
 sum insured is to the ■whole sum at risk." 
 Held, insurers were liable for a proportion of 
 any reasonable expenses incurred in preserving 
 the subject insured from the operations of any 
 of the perils insured against. Cory v. Boyhton 
 Ins. Co., 107 Mass., 140. 
 
 5. Stipulated : " It shall be lawful for the 
 insured, tlieir factors, servants, agents, etc., to 
 labor and travel for, in and about the defense, 
 
 I safeguard and recovery of said goods, without 
 prejudice to this insurance." Ileld, this stip- 
 ulation imijosed no additional duties upon the 
 insured, but gave insurers the right, after the 
 disaster, to repair the boat or vessel, if the in- 
 sured failed to recover and repair. Cincinnati 
 Ins. Go. v. May, 20 Ohio, 311. 
 
 6. Stipulated: "In case of loss or misfor- 
 tune, it shall be the duty of the parties insured, 
 their agents, etc., to use all reasonable and 
 proper means for the security, preservation, 
 relief and recovery of the property insured." 
 Meld, not a warranty to be observed strictly; 
 that the jury were not to determine whether 
 the best plan was adopted to save the property, 
 or whether all was done that might possibly 
 have been done, but whether reasonable and 
 proper means were used, such as a competent 
 owner, uninsured, would have been expected to 
 use, under the circumstances. Franklin Ins. 
 Go. V. Cotib, a Gin. Sup. Ct, 87. 
 
 7. Warranted free from average unless it 
 should amount to ten per cent. There was a 
 partial loss amounting to $162, and the further 
 sum of $118.99 expenses incurred for tbe 
 safety of the goods. By the terms of the pol- 
 
 530 
 
 icy, it was made the duty of insnred to labor 
 and travel for the safety and recovery of tbe 
 goods, the expenses to be borne by the insurer, 
 in proportion as the sum insured bears to the 
 whole sum at risk. Held, that plaintiffs were 
 entitled to recover the charges for saving thij 
 goods, $118.99; that as to the $162, no recovery 
 could be had, as it was less than ten per cent, 
 of the value. SchuUz v. Ohio Ins. Co., 1 B. 
 Hon., 336. The insurer was discharged from 
 extra freight paid for transhipping the goods. 
 Ibid. 
 
 8. Several policies on a steamboat, one of 
 tliem stipulated : " Insurer might interpose and 
 recover said boat, and cause her to be repaired 
 in case the insured shall not adopt prompt 
 measures to recover and repair her." Held, 
 the provision in this policy did not enure to 
 the benefit of the other insurers. Fulton Ins. 
 Co. 11. Goodman, 32 Ala., 108. 
 
 PRESUMPTIONS. 
 
 , I. What ■will be fbesiumsd 
 
 II. NOT BE PRESUMED. 
 
 I. What ■will be peestjmed. 
 
 1. A corporation can only act in the man- 
 ner prescribed by the act of incorporation ; so 
 when its agents do not proceed according to 
 the act, the informality is itself conducive to 
 the opinion that the agents were manifesting 
 terms upon which they were willing to bind 
 the company, and not that they were making 
 a contract obligatory upon both parties. Head 
 V. Providence Ins. Co.. 3 Cranch, 127. 
 
 2. It must be presumed that the decrees of 
 every civilized nation in relation to the dispo- 
 sition or sale of property are in writing. Wood 
 V. Pleasants, 3 Wash. C. C, 201. 
 
 3. If a ship has not taken her captain on 
 board, it is a presumption that she has not 
 commenced her voyage, though all her papers 
 are in. Dennis v. Ludlom, 2 Gaines, 111. 
 
 4. No time is fixed by law after which a 
 missing vessel shall be presumed lost. Tbe 
 rule ought to be, if she does not arrive within 
 the usual limits of the voyage, she shall be 
 presumed lost; but to determine the usual 
 limits, neither the longest nor the shortest 
 
1061 
 
 PRESUMPTIONS— PRIMA FACIE CASE. 
 
 1062 
 
 What will not be presvaned — What is. 
 
 period of time should be adopted. Brown v. 
 Neilson, 1 Cuines, 525. 
 
 5. If the proof shows that words used in a 
 contract are subject to a particular rneaning 
 among merchants dealing in the article to 
 ■which they refer, the law will presume that 
 the parties intended that meaning. Astor «. 
 Union Tna. Co., 7 Cow., 303. And the parties 
 are presumed to know the meaning, and are 
 bound by it. Ibid. 
 
 6. In the summer of 1865, deceased com- 
 menced working on a steamboat, permission 
 being granted by insurer for one year from July 
 6th, for a consideration of f 10 extra premium. 
 In October, 1860, the company's agent acknowl- 
 edged receipt of $35, and required $2.80 addi- 
 tional premium to renew the policy until 
 August 31, 1867. While deceased was sick 
 September 6, 1867, the agent wrote in reply to 
 inquiries, " Please send a draft for the cash due. 
 on your policy August 31st, $37.73 ; cash for 
 permit, $10; total, $47.73." Hdd, if anything 
 was due for the permit for the previous year, 
 the agent would have made demand for the 
 amount After the general agent had visited 
 the plaintiff, and was in possession of all the 
 facts, and had communicated with the presi- 
 dent of the company, he wrote that the ground 
 for rejecting the loss was the nonpayment of 
 premium due August 31, 1867. Therefore the 
 jury were warranted in concluding that the 
 permission to be employed on the steamboat 
 was properly renewed (111. S. C). Home Life 
 Ins. Co. V. Pierce, 5 Ins. L. J., 290. 
 
 7. Insured is not obliged to inform insurer 
 of any fact pertaining to the port of destina- 
 tion ; for both parties are presumed to know 
 all about the trade in which the vessel is en- 
 gaged. NeUon v. Louisiana Ins. Co., 17 Mar- 
 tin (La.), 289. 
 
 8. The evidence was taken by commission, 
 and written in English, but it appeared the 
 witness did not understand the English lan- 
 guage. Held, the court will presume that the 
 commissioners understood the language of the 
 witness- City Fire Ins. Co. v. Carrugi, 41 Ga., 
 660. 
 
 9. Intelligence in Lloyd's Printed Lists was 
 presumed to be within the knowledge of the 
 insurer. Friere v. Woodhouse, Holt N. P., 572. 
 
 1 0. She had liberty to proceed to any port 
 or ports in the Baltic or Gulf of Finland, some 
 of which were enemy's ports, and others neu- 
 tral. Seld, the court would presume, until the 
 
 contrary appeared, that she intended to go to 
 a neutral port. Muller v. Thompson, 2 Uamp., 
 610. 
 
 II. What will not be presumed. 
 
 1. The seaworthiness of the vessel at the 
 commencement of the voyage, raises no pre- 
 sumption that subsequent repairs made during 
 the voyage were caused by extraordinary 
 peril. Donnell v. Columbian Ins. Co., 2 Sumn., 
 366. 
 
 2. The fact that the insurance is made upon 
 freight and cargo, after knowledge of a second 
 storm, does not preclude the jury from find- 
 ing that the ship was lost iu the first storm. 
 Brown v. l^eilson, 1 Gaines, 525. 
 
 3. Information of the loss of a vessel ar- 
 rived early in tlie morning, and a policy was 
 effected at noon at the same place. Held, not 
 evidence that insured knew of the loss before 
 making the insurance. Livingston v. Dela- 
 Jieid, 3 Gaines, 49. 
 
 4. Action on a policy: " $2,000 on one-fourth 
 of the brig Hesperus for one year from Janu- 
 ary 13, 1855, at noon." She sailed January 4, 
 1856, for the Lobos Islands, a voyage of thirty 
 or forty days, and was never afterwards heard 
 of. On the 26th of the same, the insured 
 obtained from the defendants another policy 
 for $1,000 for one year, commencing January 
 13th at noon. She had been lost for a time 
 suflBciently long to raise the presumption of 
 loss prior to the commencement of the action. 
 Heid, the common law has not fixed any time 
 within which a missing vessel is to be pre- 
 sumed lost; that the question of when a pre- 
 sumption of loss arises is one of fact for a 
 jury, to be determined by an examination of all 
 the facts and circumstances of the given case, 
 the precise time of the loss is a matter of fact 
 for the jury to determine. Clifford v. Thomas- 
 ton Mut. Ins. Co., 50 Me., 197. 
 
 PRIMA FACIE CASE. 
 I. What is. 
 
 II. NOT. 
 
 I. "What is. 
 
 1. The person whose life was insured died 
 before the policy was delivered. Had apol- 
 
 531 
 
1063 
 
 PRIMA FACIE CASE. 
 
 1004 
 
 What is not. 
 
 icy been issued, it would have contained the 
 following conditions: " If any representation 
 made by the insured in the application for the 
 policy shall prove untrue, tlie policy shall be 
 void, payment of the loss shall be made with- 
 in ninety days after notice of death and due 
 proof of the just claim of the insured." In- 
 sured offered evidence to prove the contract 
 and the death of her husband, and that she 
 had filled up in the presence of the agent, and 
 delivered to him, certain blank forms fur- 
 nished by the company, such as were always 
 used in making proof of death, that they were 
 received by the agent without objections. Held, 
 a prima facie case, although no evidence was 
 given of the contents of the papers. Life 
 In*. Oo. V. Frcmeiteo, 17 Wall.) 672. 
 
 2. The plaintiff produced the policy, gave 
 evidence of the loss, the delivery of the pre- 
 liminary proof and the value of the property 
 destroyed. Held, a prima facie case. Geib v. 
 International Ins. Co., 1 Dil. Cir. Ct., 443. 
 
 3. Ship insured from Kautucket to the 
 Brazil Banks. One of the surveyors testified 
 that with three others he surveyed her at Rio 
 Janeiro, and condemned her as not worth 
 repairing. Insurer defended on the grotmd 
 that she was unseaworthy, and moved for 
 a nonsuit because insured had not pro- 
 duced the survey nor given any excuse for not 
 producing it. Held, the motion must be over- 
 ruled and the plaintiff have judgment. Mit- 
 chell V. Jieui England Marine Ins. Co., 6 Pick.^ 
 117. 
 
 4. Where the owner of the goods shows 
 that he purchased them nearly eleven months 
 before they w ere shipi)ed, the want of evidence 
 showing where they were in the interim does 
 not do away with the prima facie evidence of 
 ownership. Flemming v. Marine Ins. Co., 4 
 Whart, 59. 
 
 5. The jury found specially that she was in- 
 sured for a period of six months ; that her re- 
 pairs cost $1,386.60, and that she was sea- 
 worthy when the policy attached; that the 
 expense incurred for repairs was made neces- 
 sary by perils of the sea. Held, the in- 
 sured wore entitled to recover. WaHer v. 
 Louisiana Ins. Oo., 9 Martin (La.), 276. 
 
 6. If the vessel is proven seaworthy though 
 there are suggestions and proof of fraud, in- 
 sured is not bound to establish the particular 
 cause of the loss, but he may show a possible 
 cause. Marey v. Sun Ins. Oo., 14 La. An., 362. 
 
 S33 
 
 7. She was not heard of after sailing. 
 Held, insured must prove that when she left 
 port, she was bound on the voyage insured ; 
 but the convoy bond, executed at the custom 
 house, was prima fade evidence that she 
 sailed on the voyage insured. Cohen v. Hink- 
 ley, 3 Camp., 51; 1 Taunt., 249. 
 
 8. On sliip from North Carolina to London, 
 warranted against captures and seizures. She 
 was never heard of after she sailed.. Held, 
 there was no presumption that she was cap- 
 tured. Qreen v. Brown, 2 Strange, 1199. 
 
 9. Warranted to carry a French license. 
 Proof that when she sailed from Dantzic the 
 captain received from his owners a docu- 
 ment which purported to be a French license 
 is not sufScient, without proof that he re- 
 ceived it from a person authorized'to give it ; 
 but it appeared the French government bad 
 possession uf her papers and afterwards re- 
 turned them, and was permitted to proceed. 
 Held, prima facie evidence that the document 
 was genuine. Moerth v.Tunno,! Stark., 508; 
 s. c, 1 B. & A., 142. 
 
 II. What is not. 
 
 1. Upon an open policy the insured must 
 prove his interest and the value of his proper- 
 ty, or he cannot recover. Beale d. Pettit, 1 
 Wash. C. C, 241. 
 
 2. " Warranted orders shall be given that 
 the ship shall not cruise." Held, necessary 
 for the insured to prove that the master was 
 in express terms directed not to cruise; and, 
 there being no proof to that effect, the insurer 
 was released. Ogdea v. Ash, 1 Sail., 162. 
 
 3. The insured must prove damage done or 
 occasioned to the cargo insured, upon the 
 voyage insured, by some peril against which 
 the policy was to protect him; the policy pro- 
 tects against extraordinary perils only. It is 
 not sufiScient that the goods appear to hare 
 been in a damaged state when landed. Flem- 
 ming v. Marine Ins. Co., 4 Whart, 59. 
 
 4. If the goods are found upon landing to 
 liave been damaged by sea water, that is not 
 prima fade evidence that the damage was by 
 a peril of the sea. Fleming v. Marine Ins. 
 Co., 3 W. & S., 144. 
 
 5. Evidence that she was seaworthy when 
 she sailed, that the working of the rudder 
 tends to loosen vessels at the stern, that 
 another vessel on the same voyage which 
 
1065 
 
 PRINCIPAL AND AGENT 
 
 1066 
 
 When the prindpal is bound. 
 
 arrived about three days prior had strong 
 northerly winds all the way out, does not au- 
 thorize the court to submit to the jury the 
 question whether the goods were damaged by 
 perils of the sea. f lemming «. Jn». Co., 13 
 Penn. St.. 391. 
 
 6. Evidence showing that 596 bags of 
 coffee were damaged witliout giving any data 
 by which to determine the amount of dam- 
 age is not sufficient to base an instrnctioo to 
 the jury directing them to allow for the loss. 
 Merehmts Mut. Im. Co. v. Wilson, 2 Md., 217. 
 
 PRINCIPAL AND AGENT. 
 
 (See BsioppEi.; tscoxE&iscae; Hastsb or Ship.) 
 
 I. When the PRDfcrpAi is botjud. 
 
 (a) 0^ the acta and knowledge of the 
 
 agent, 
 (ja) Of the acts of the agent's clerk, 
 
 broker or solicitor. 
 n. When the principai, is not bound. 
 (a) Of the acts and kntncledge of the 
 
 agent. 
 Qa) Cf the acts of the agent's derk, 
 
 broker or solicitor. 
 
 III. Of BATrPICATION AND APFIRlf ANCE. 
 
 rV. Op bevocation. 
 V. Of the agent's T.TABn.rrr. 
 VI. Agents of ships. 
 VIL Genebau^y. 
 
 I. "When peincipal is bound. 
 
 (a) Of the acts and kruywledge of the 
 agent. 
 
 1. The company's agent filled up the appli- 
 cation and inserted in it matter not authorized 
 by the -applicant. Held, the agent acted for 
 the company and not for the insured. Insur- 
 ance Co. «. Wilkinson, 13 WalU 222; a. C, 2 
 Dil. Cir. Ct., 570. 
 
 2. If Uie<Jefendants held out their president 
 as authorized to make oral contracts for insur- 
 ance, no secret limitation of his authority can 
 affect third persons dealing with him in good 
 faith, without notice of such limitation, for the 
 supposed limitation would be inconsistent 
 with the authority; its effect would be that 
 
 though the president was authorized to make 
 oral promises to effect insurance, the company 
 were at liberty to execute those promises or to 
 refuse to do so at their option. Commercial 
 Mutual Marine Ins. Co. c. Union Mut. Ins. 
 Co., 19 How., 318; 2 Curtis, 524. 
 
 3. The company's agent was quite familiar 
 with the property, and offered to insure $1,000 
 for a term of three years for a premium of 
 $13.50, which money was paid to him. In- 
 sured called for the policy frequently, but 
 failed to get it, and soon after he left the state. 
 The property was burned by an accidental 
 fire before any policy was delivered, and be- 
 fore the agent remitted the money to the r.om- 
 pany. It appeared that the agent had never 
 reported the risk to tlie company, but had con- 
 verted the premium to his own use. Prompt 
 notice of the loss was given to the agent, who 
 said he was satisfied that the loss was all 
 right, and promised payment of the claim on 
 different occasions between the autumns of 
 1864 and 1866. In 1866 the agent notified in- 
 sured that the company would not pay the 
 claim. Held, the agent had authority to waive 
 proofs of loss; his acts and assurances in re- 
 gard to the payment of the loss were also suffi- 
 cient to waive the clause which required suits 
 to be brought within one year after the loss; 
 and the claim .could be enforced without the 
 delivery of a policy, hence the complainant 
 was entitled to recover the amount insured 
 with interest and costs of suit. Ide v. Phanix 
 Ins. Co., 2 Bisa., 383. 
 
 4. The company supplied the agent with 
 blank policies signed by the company's offi- 
 cers. He was authorized to fill them up and 
 to deliver them without first consulting the 
 company. He filled up and delivered one for 
 $4,000, upon the property in question, insur- 
 ing it for six montlis; renewed it in writing 
 for six months longer, but beyond that there 
 was no further written renewal. The insured 
 claimed an agreement resting between tlie 
 agent and himself, that the agent would keep 
 the property constantly insured by renewing 
 the policy every six months, and draw for the 
 premium. Held, the powers of an insurance 
 agent are presumed to be coSxtensive with the 
 business entrusted to his care; and his pre- 
 sumed powers were not to be narrowed by 
 limitations not communicated to the person 
 dealing with him (citing Insurance Co. v. 
 Wilkinson, 13 Wall., 222); that if the agent 
 
 533 
 
1067 
 
 PRINCIPAL AND AGENT. 
 
 1068 
 
 When principal is bound. 
 
 •was empowered to solicit insurance, receive 
 premiums, issue and deliver policies, then as 
 to third persons dealing with him in good 
 faith, the company would be bound by his 
 parol as well as by his written contracts for 
 insurance, unless notice of resti-ictions on his 
 power were brought home to the persons deal- 
 ing with him; that he had authority to make 
 the contract alleged, and it was binding upon 
 the company if he made it. Bauhie v. jSltna 
 Int. Co., 3 Dil. Cir. Ct., 156; Taylor v. Germa- 
 nia Ins. Co., id., 383. 
 
 5. Whatever is said and done by the agent, 
 is the act of the principal. Ola/rk v. Manuf. 
 Inn. Co., 2 W. & M., 472; s. c, 8 How., 235. 
 
 6. Stipulated: ''If the property offered for 
 insurance is within the district of a surveyor 
 of the company, he will examine and re- 
 port thereon, unless the party applying shall 
 elect to make his own survey, in which case 
 such survey shall be made according to the 
 printed form of instructions issued from the 
 office of the company; and tha party furnish- 
 ing such survey shall be responsible for the 
 accuracy thereof." Held, when the com- 
 pany's agent examined the risk and reported 
 on it, insured was relieved from the responsi- 
 bility of making his own survey, and was not 
 responsible for the accuracy of a svur^ey 
 made by the company's agent, though signed 
 by insured. Both v. City Ins. Co., 6 McLean, 
 334. 
 
 7. Defendant's agent received the premium 
 and delivered the renewal receipt after the poli- 
 cy had lapsed. The agent had no power to waive 
 express conditions. Held, it was competent 
 fur the defendant to waive forfeitures and give 
 renewed effect to the contract ; and the deliv- 
 ery of the receipt duly executed by the com- 
 pany had that effect (citing Buckbee v. United 
 States Ins. Co., 18 Barb., 541 ; Sheldon v. Con- 
 necticut Mutual Life Ins. Co., 35 Conn., 307. 
 Jacobs V. ITatitmal Life Ins. Co., 1 Mac A., 
 632. 
 
 8. Secretary of insurer gave assent to as- 
 sign the policy. Held, his authority must be 
 presumed in the absence of proof to the con- 
 trary. Conover n. Mutual I-ns. Co., 1 N. Y., 
 290; 8. c. How. App. Cas., 604; 8 Denio, 354 
 
 9. The company had its principal office in 
 the city of New York, and permitted R., a 
 resident of Savannah, to receive and remit 
 premiums to them. Held, permission to do 
 so was equivalent to authority. Perkins f>. 
 
 584 
 
 Washington Ins. Co., 4. Cow., 645 ; 6 Johns. 
 Ch., 485. 
 
 10. B. was authorized by his principal to 
 take risks at Troy only, but he took one at 
 Utica, upon which there was a loss before the 
 policy was delivered. B.'s principal had fur- 
 nished him with policies signed in blank, 
 ready to be delivered to any one who might 
 wish to contract after the name of the insured, 
 subject insured, extent of the risk and date of 
 transaction should be inserted. Held, although 
 B. must answer to his principal for departing 
 from private instructions, still the principal 
 would be bound, if insured, acting in good faith, 
 and judging from the acts of B. and the acts of 
 his principal, had the right to suppose that B. 
 had authority to take the risk; that furnish- 
 ing B. with policies, signed in blank ready to 
 be delivered to any one who might wish to 
 contract, authorized insured to suppose that 
 B. had authority to take the risk. Lightbody 
 ■0. North America Ins. Co., 33 Wend., 18. 
 
 11. D. was appointed to take applications, 
 and to receive premiums. ' Insured stated 
 verbally to him the facts necessary to be in- 
 serted in the application, and among other 
 things, told him the premises were incum- 
 bered by mortgage. An application was then 
 signed in blank and given to D., who prom- 
 ised to insert the necessary answers. In fill- 
 ing it up D. stated that the property was not 
 incumbered. Held, that D., in filling up the 
 blank application signed by insured, acted 
 within the scope of his authority; that in 
 doing so he was not the agent of the insured; 
 hence insurers were estopped to show that the 
 application was untrue. Rowley v. Empire 
 Ins. Co., 36 N. Y., 550; 8. c, 42* N. Y. (3 
 Keyes), 557; 4 Abb. Dec, 131. 
 
 12. B. was agent to make contracts of in- 
 surance ujjon a printed policy, which stipu- 
 lated that no insurance should be binding till 
 the actual payment of the premium. Held, 
 he had authority -to waive the payment of the 
 premium. Ooit v. National Protection Ins. 
 Co., 25 Barb., 189. 
 
 13. S. & S. were defendant's local agents at 
 Elmira. They, with other persons acting for 
 other companies, examined the premises 
 where the loss occurred, and they all con- 
 curred that the loss was total, and that it 
 would be paid in full. Held, the acts and 
 admissions of S. & S., though not general 
 agents, would bind the defendants, if S. & 8. 
 
1069 
 
 PRINCIPAL AND AGENT. 
 
 lOTO 
 
 When piinoipal is bound. 
 
 were in the exercise of an apparent authority, 
 and the insured was ignorant of any restric- 
 tion or qualification as to their agency (citing 
 Insurance Ca c. Wilkinson, 13 Wall., 282). 
 Biiah v. Wettchester Fire Ins. Go., 2 N. Y. 8. C, 
 6:29. 
 
 14. The agent was furnished with blank 
 policies signed by the president and secretaiy 
 to be filled up and delivered to persons who 
 might wish to contract. He had the right to 
 renew policies, to fix the premiums and to 
 receive and remit them to the company. Held, 
 he had authority to make a parol agreement 
 to insure and to waive the payment of the 
 premium, notwithstanding the printed condi- 
 tions of the policies stipulated that the risk 
 should not commence till payment of pre- 
 mium. HotMciss V. Germania Fire Ins. Go., 
 5 Hun. (N. Y.), 90. 
 
 15. Defendant's secretary attended a meet- 
 ing of the representatives of all the insurers 
 of the same stock, at which time a committee 
 was appointed to settle the loss, who appointed 
 appraisers. Held, binding upon the defend- 
 ant DeOvoot V. FuUon Fire Inn. Go., 4 Rob. 
 (N. Y.), 504. 
 
 16. Insurer furnished Q. & C. with policies 
 signed in blank, for them to write in the con- 
 sideration, amount insured, and all other mat- 
 ters pertaining to the contract. G. & C. issued 
 a policy upon certain buildings in course of 
 construction, but insured refused to receive it 
 or to pay the premium, on the ground that the 
 printed stipulations prevented its operation, 
 while the buildings were being constructed. 
 O. & C. made an indorsement assuming the 
 risk while the buildings were being con- 
 structed, notwithstanding the stipulations men- 
 tioned. Insurers had not any notice of the in- 
 dorsement until after the loss occurred. Be- 
 fore the buildings were completed they were 
 consumed by fire. Held, insured had the right 
 to assume that G. & C. were authorized to 
 make the indorsement, therefore insurers 
 were liable for the loss. Gloucester Manu- 
 facturing Go. V. Howard Fire Ins. Go., 5 Gray, 
 497. 
 
 17. Defendant's agent had authority to 
 effect insurance, and for that purpose to sur- 
 vey risks, fix the rate of premium and issue 
 policies of insurance, signed by the president ; 
 policies were furnished him signed in blank. 
 The agent made a preliminary contract to in- 
 sure, and before any policy was issued a loss 
 
 occurred. Held, he had authority to make it. 
 Sanboi-n v. Fireman's Ins. Go., 16 Gray, 448. 
 
 18. Directors issued instructions to agents: 
 " Distilleries are not insurable." The agent 
 issued a policy upon a distillery, and received 
 a premium note as the consideration. Held, 
 the policy was valid, and a good considera- 
 tion for the note. Gitizens Mutual Fire Ins. 
 Co. e. 8ortwell,8 Allen, 217. 
 
 19. The contract prohibited other insur- 
 ance, unless permitted by indorsement signed 
 by the secretary, in pursuance of an order 
 passed by the board of directors. Permission 
 was given, and indorsed by an agent, who did 
 not subscribe himself secretary; but evidence 
 was given to show that the company recog- 
 nized such permission, given by the same 
 agent to other persons. Held, the agent was 
 secretary for that purpose. Peck v. Neui Lon- 
 don Mut. Ins. Go., 22 Conn., 584. 
 
 20. Insurers insisted that the agent who 
 filled out the application was their agent only 
 for certain definite purposes. There was n.» 
 written evidence as to the extent of his autlior- 
 ity. Held, the extent of the agent's authority 
 was one of fact, for the jury to determine 
 from all the facts and circumstances of the 
 case.' Hough v. Gity Fire Ins. Co.. 29 Conn., 10. 
 
 21. The by-laws required the president tv) 
 adjust and pay all losses. Held, authority to 
 transfer and dispose of the funds of the com- 
 pany for that purpose, including negotiable 
 paper, would be presumed, because the impo- 
 sition of a duty implies authority necessary 
 for its performance. Baker v. Cotter, 45 Me., 
 236; Cabot v. Given, id., 144. 
 
 22. Charter required all risks to be divided 
 into four separate classes, and the by-laws di- 
 rected what kinds of property should be in- 
 cluded in the several classes. The policy was 
 issued as for a risk in the third class ; but it 
 was properly a risk within the fourth class. 
 The company's agents had full knowledge of 
 all the facts. Held, that however irregular the 
 action of the directors was, and though in vi- 
 olation of the rules and by-laws of the com- 
 pany, still it was within the scope of their au- 
 thority, and the company must be hold liable. 
 Gnion Mutual Fire Ins. Go. v. Keyser, 33 N. 
 H., 313. 
 
 23. For the term of one year, and for the 
 full end and term of any future time or times 
 lor v^hich a premium shall be paid and in- 
 dorsed, or otherwise acknowledged in writing 
 
 533 
 
1071 
 
 PRINCIPAL AND AGENT 
 
 1072 
 
 When principal is bound. 
 
 by the secretary or other authorized ofScer. 
 It was renewed from year to year for about six 
 years, when the company directed the agent 
 who renewed it, to cancel it, of which he no- 
 tified insured; but he did not pay or offer to 
 insured the return premium. Before that was 
 done the loss occurred. Ileld, the authority of 
 the agent did not depend on that which was 
 actually delegated to him by the company, but 
 on that which the plaintiff had a right to be- 
 lieve was given him ; that tlie principal was 
 bound to dissent from the act of his agent in 
 renewing the policy, within a reasonable time 
 after the fact of renewal was communicated, 
 and if that was not done the company could 
 not subsequently repudiate his acts. Franklin 
 Fire Ins. Co. v. Mas»ey, 33 Penn. St., 221. 
 
 24. B. was authorized to make contracts for 
 his principals, who furnished him with blank 
 policies, to be delivered after the nece&sary 
 matter should be written into them, and by 
 him countersigned. Held, the jury were au- 
 thorized in finding that he had authority to 
 waive particulars of the loss. Imperial Fire 
 In». Co. ■». Murray, 73 Penn. St., 13. 
 
 25. Stipulated: "To be void if assigned 
 without written consent of the secretary." It 
 was assigned and consented to by an agent 
 whose custom it was to give such consent, and 
 to report monthly, upon blanks furnished by 
 the company for that purpose, and this assign- 
 ment was immediately reported. Held, insur- 
 ers could not reject the claim on the ground 
 that the agent had not authority to consent, 
 if it appeared that ho was in the habit of 
 doing so, and insurers had ratified his acts. 
 Farmers Mut. Ins. Go. v. Taylor, 73 Penn. St., 
 342. 
 
 26. S. was insurer's agent for receiving and 
 transmitting applications for insurance. Held, 
 if he by mistake sent an application to his 
 principals which was erroneous, and not au- 
 thorized by insured, he committed an error in 
 the performance of a duty for which insurers 
 liad employed him solely as their agent, and 
 tl\ey must bear the consequences of his mis- 
 take or carelessness (citing Wing v. Harvey, 5 
 De G., M. & G., 265). Wilson v. Conway Fire 
 J».. Co., 4 R. I., 141. 
 
 27. Insurers executed a receipt and deliv- 
 ered it to their agent S., who delivered it to 
 insured, who gave his promissory note for the 
 premium. Held, a limitation of the authority 
 of S. could not affect the {Plaintiff, unless no- 
 
 530 
 
 tioe of it were brought home to him. Itwrry 
 V. Home Life Ins. Co., 9 R. I., 346. 
 
 28. The agent was authorized to receive 
 applications to examine the promises to be in- 
 sured, determine the character of the risk 
 agree upon the amount to be insured and the 
 premium, and to receive such portion of it as 
 was to be paid in hand, and to ' take the obli: 
 gatton of the party insured, with suob security 
 as he might approve for any future liability. 
 Held, the principal was bound to aflSrm his 
 acts, and could not refuse to ratify the con- 
 tract except for fraud or mistake, and this, 
 notwithstanding the agent testified that he had 
 no authority to bind his principal, and the 
 written application was subject to the princi- 
 pal's approval. Palm v. Medina County Mutual 
 Fire Ins. Co., 20 Ohio, 529. 
 
 29. G.'s principals supplied him with in- 
 surance certificates signed in blank, in which 
 he was to write the consideration, the subject 
 matter, and term of insurance, to receive tlie 
 premiutii, and to deliver them to applicants. 
 Conditioned: "Or should the risk not be ac- 
 cepted, and the above sum of money refunded 
 to applicant, then this receipt is void and of 
 no effect." G. filled into one of them the sub- 
 ject of this contract, and delivered it with the 
 foregoing condition erased. Hetd^ unless in- 
 sured procured G. to strike out the condition, 
 it was an absolute contract. For insurers held 
 out G. as having apparent authority to deliver 
 the paper, with or without the condition; 
 that delivering it with the condition erased 
 was not notice that G. exceeded his authority, 
 because insured had no means of knowing> 
 whether the erasure was made before or af- 
 ter the principal executed it. Dayton Ins. 
 Co. V. Kelly, 24 Ohio St., 345. 
 
 30. The insurer's agent received an addi- 
 tional premium, for permission to remove the 
 building to another locality, and gave consent 
 in writing to remove it to the place named. 
 The company received the money and tlien 
 denied that the agent had any authority to 
 make the agreement. Held, the insurer was 
 bound by the act of the agent. Ifew England 
 Fire and Marine Ins. Go. v. StAettler, 38 111., 
 166. 
 
 31. Insured went to the insurer's pla6e of 
 business for the purpose of adjusting his 
 claim; the secretary and general agent deter- 
 mined the amount to be paid in the presence 
 of insurer's pre^dent, and with his silent ac> 
 
1073 
 
 PRINCIPAL AND AGENT. 
 
 1074 
 
 When principal is bound. 
 
 quiescence, agreed to pay a stipulated amount 
 of money in ninety days from that date. 
 '•Held, the agreement was binding, notwith- 
 ' standing the company's charter, read in evi- 
 I deuce, provided, " The affairs of the company 
 shall be managed by a board of directors, who 
 may appoint an executive committee who may 
 exercise all the powers of the company when 
 the board is not in session, unless forbidden 
 by its by-laws." jfarmen and MercJumta In*. 
 Co. V. Ghemut, 50 111., 111. 
 
 32. The agent was authorized to take risks 
 in Nebraska Ci^ ; he took one in Cass county, 
 some distance from the city. He had author- 
 ity to make contracts for insufance and to is- 
 sue policies. Held, the company could not be 
 permitted to say that the agent acted beyond 
 the scope of this authority, unless insured 
 was informed of and knew the precise extent 
 of the authority conferred, ^tna Ins. Co. v. 
 MagaiTe,^ 111., 342. 
 
 33. Insurer's agents were asked to consent 
 to a conveyance of the property insured, and 
 they agreed that the contract should be good 
 nntil the i>olicy could be brought from St. 
 Louis, and the proper indorsement made. 
 Held, the company was bound by the agents' 
 promise, and the fact that insurer was a mutual 
 company was immaterial. lUinoii Fire Ins. 
 Co. 0. Stanton, 57 111., 354. 
 
 34. Stipulated: "Agents are prohibited 
 from altering or discharging contracts, or 
 waiving forfeitures." Held, the words of the 
 policy were not conclusive on the parties, be- 
 cause it was witliin the power of the com- 
 pany, acting tfarongh its agents, to change or 
 dispense with the payments provided for in 
 the policy, and to adopt a mode and time of 
 payment entirely different lu such cases the 
 question is, not what power the agent had, but 
 what power did the company hold him out to 
 the public as possessing. MeUetic Life Ins. 
 Co. V. Fahrenkrug. 68 111., 463. 
 
 3.5. The defendant's agent accepted a risk 
 of $5,500 in a certain warehouse. The insurer 
 offered to prove that the agent had authority 
 to take risks to a limited sum in the ware- 
 house; and that before this risk was accepted, 
 that limit had been reached. Held, inadmis- 
 sible unless insurer would undertake to prove 
 that insured had notice of the limitation; for 
 the insurer could not be permitted to shield 
 itself behind the act of its agent (IH. S. C). 
 Hartford Ins. Co. t. FarrishnS Ins. L. J., 46. 
 
 36. K. wrote letters and signed receipts as 
 general agent. Held, his declarations to the 
 plaintiff, after her husband's death, that he 
 had no doubt the company would pay the 
 claim, were admissible, notwithstanding he ' 
 had no authority to adjust losses (111. S. C.}. 
 Home Life Ins. Co. v. Pierce, 5 Ins. L. J., 290. 
 
 37. Clerk in insurers' office made a ma- 
 terial alteration in the policy. Insurers 
 proved he had no authority to make or alter 
 contracts for them; but it was also proved 
 that he made the same alteration in insurers' 
 records. HM. an effectual notice to insurers. 
 Washington Fire Ins. Co. v. Damson, 30 Md., 
 91. 
 
 38. Action on a bill of exchange, drawn in 
 the name of defendant by its general agent, 
 in fiavor of O., in payment of a loss which he 
 had sustained by fire, on property insured by 
 defendant. Evidence was given to prove that 
 the agent, had drawn similar bills in like 
 cases, and they had been paid by the com- 
 pany. Held, a recognition by the principal 
 of an agency in similar instances was evi- 
 dence of the authority of the agent (citing 
 Stothard v. Anl, 7 Mo., 318). Fayles v. Na- 
 tional Ins. Co., 49 Mo., 380. 
 
 39. Certain plats were delivered to the de- 
 fendant's agent. Held, a delivery to the de- 
 fendant. Moore v. Atlantic Hut. Ins. Co., 56 
 Mo., 343. 
 
 40. Where persons deal with an officer of a 
 corporation who assumes authority to act in 
 the premises, and no want of authority or ir-- 
 regularity is brought to the knowledge of the 
 party dealing with the corporation, and noth- 
 ing occurs by which the party dealing could 
 have reason to suppose that the officer is 
 not authorized, the corporation is bound, al- 
 though the agent exceeded his powers (cit- 
 ing Merchants Bank v. State Bank, 10 
 Wall., 644). Lungsirass v. German Jtis. Co., 
 57 Mo., 107. 
 
 41. The limited authority of an agent can- 
 not affect the rights of third persons, if the 
 acts of the principal, or the acts of the agent 
 permitted by the principal, were such as to in- 
 duce a belief that he had general or unlimited 
 powers. Keenan v. Missouri State Ins. Co., 
 12 Iowa, 126. And if a special agent has 
 notice of a fact which ought to be made 
 known to his principal, it is his duty to give 
 notice of it — his failure to do so cannot 
 prejudice the rights of third persons ; but the 
 
 537 
 
1075 
 
 PRINCIPAL AND AGENT. 
 
 1076 
 
 When principal is bound. 
 
 agent is not bound to notice mere rumors and 
 general conversation, tliough. tbey relate ti> 
 the fact. Ibid. 
 
 42. If the agent has authority to cancel 
 policies for increase of risk, he has authority 
 to determine whether the risk is increased; 
 and this involves the necessity of examination 
 during the term insured, and constant watch- 
 fulness to protect the interest of his prinrci- 
 pals. It follows, he is clo.hed with power to 
 despense with conditions, and waive the effects 
 of the breaches thereof, for if he can put an 
 end to the contract on account of increase of 
 risk and a consequent forfeiture, he can waive 
 the forfeiture (citing Peoria Marine and Fire 
 Ins. Co. e. Hall, 12 Mich., 202; Warner v. 
 Peoria Marine and Fire Ins. Co., 14 Wis., 318 ; 
 New England Fire and Marine Ins. Co. v. 
 Schettler, 38 111., 106). VieUe v. Germania Ins. 
 Co., 26 Iowa, 9. 
 
 43. Insured sustained a loss, and insurer's 
 agent, who had issued the policy, accepted the 
 order of the insured in favor of another per- 
 son, " Payable out of any moneys to become 
 due to the insured when the loss shall be ad- 
 justed." He had authority to assent to assign- 
 ments and transfers. A circular issued by the 
 insurer's agent stated that losses under poli- 
 cies issued at his agency would be paid 
 through him, and another circular stated that 
 losses would be paid in bankable funds. Held, 
 l)roper evidence for a jury, from which they 
 could infer that the agent had authority to ac- 
 cept the order. Miller v. Plmnix Ins. Co., 27 
 Iowa, 203. 
 
 44. P.& S., copartners, conducted an agency 
 business. P. was authorized to countersign 
 policies for defendant. S. testified that he had 
 seen the oflScers of the company, talked with 
 them about the business of the firm ; tliat they 
 knew he was with P., and that he had written 
 business letters to the company. Held, suffi- 
 cient to let in proof tliat S. told insured he 
 need not give notice of tlie loss; and sufficient 
 also to let in proof that a certificate of the 
 justice nearest to the loss was waived. Neai- 
 mam «. Springfield Fire and Marine Ins. Co., 
 17 Minn., 123. 
 
 45. One of the powers conferred upon the 
 corporation was to borrow money and issue 
 their bonds therefor ; this was an instrument 
 without seal. Held, the authorized agents of 
 the corporation could bind it by simple or 
 sealed instruments (citing Bank of Columbia 
 
 538 
 
 V. Patterson, 7 Crauch, 299). MeOidlougK v. 
 Talladega Ins. Co., 46 Ala., 376. 
 
 46. Stipulated: "If the first annual pre- 
 mium shall have been fully paid, and default 
 shall be made in the payment of any premiums 
 thereafter to become due, then such default 
 shall not work a foi-feiture of the policy ; but 
 if it be surrendered within thirty days after 
 such default, this company will issue a paid 
 policy for the amount which could be bought 
 by the net value of this policy (the value to be 
 determined on the basis and assumptions con- 
 tained in section 29 of an act of Missouri for 
 the regulation of life assurance, approved 
 March 10, 1869), considered as a gross single 
 premium, according to the single premium 
 rates of this company." The premiums were 
 payable semi-annually, on the first of June 
 and December. The policy was dated Juno 
 1, 1870. The second semi-annual premium 
 was paid after it was due, being njore than 
 thirty days from December 1st, to S., who was 
 acting for P., defendant's local agent at Mo- 
 bile. The third semi-annual premium falling 
 due June 1, 1871, was not paid until October 
 9th, when S. received the money from insured, 
 who was then sick in bed, carried it to the 
 office of P. and delivered it to K., who had 
 charge of the office and of defenadnt's pre- 
 mium receipts. K. accepted the money and 
 delivered the proper receipt to S. He died 
 four <i ays after. Nothing was said about his 
 sickness at the time the premium receipt was 
 delivered; Defendant refused to allow P. to 
 make any accounting for the premium, di- 
 rected him to return it, and rejected the claim. 
 The policy had this printed indorsement: 
 "Notice to policy holders. Agents are not 
 authorized to make, alter or discharge con- 
 tracts, waive forfeitures, or bind the company 
 in any way, their duties being simply the re- 
 ception and transmission of applications for 
 policies and premiums, under the rules and 
 instructions laid down in their letters of ap- 
 pointment." Held, if the principal permits his 
 agent to exceed authority previously defined 
 and limited, he is bound by any departure 
 from it which third persons may, from the 
 agent's conduct, reasonably attribute to his 
 authority (citing Golding v. Merchant, 43 Ala., 
 705). If P. accepted the premium and sanc- 
 tioned the delivery of the receipt when in- 
 formed of the facts, and the defendant's con- 
 duct had been such as authorized insured to 
 
1077 
 
 PRINCIPAL AND AGENT. 
 
 1078 
 
 When principal is bound. 
 
 believe, -when he mack the payment, that the 
 agent hail authority to waive tlie default, then 
 the principal was bound. The health of in- 
 sured at that time could have no effect further 
 than evidence tending to show whether there 
 was or was not a waiver of payment. Mound 
 City Life Inn. Co. v. JTuth, 49 Ala., 529. 
 
 47. Insurers had an agent at Savannah au- 
 thorized to take and revoke risks. Held, he 
 had authority to consent to other prior or sub- 
 sequent insurance, and it was immaterial 
 whether his consent was in writing or parol. 
 Carrugt v. Atlantic Fire /««. Co., 40 Ga., 13.5. 
 
 48. An agent authorized by power of attor- 
 ney to underwrite ships for hi%,principal under 
 the terms, restrictions, and regulations of a 
 society name. Tlie agent agreed on behalf of 
 his principal to insure a sliip for a term men- 
 tioned. She was lost before the policy was 
 executed, and with knowledge of the loss tbe 
 agent executed the policy. Held, he ha-J the 
 right to execute it. Mead v. Davidson, 3 A. & 
 E., 303; 4 L. J. (N. S.) K. B., 193; 4 N. & M., 
 701. 
 
 49. Policy upon a life was assigned, of which 
 notice was given to a person who acted as the 
 company's agent in transmitting premiums and 
 instructions for policies, and who settled losses 
 for the company, and received agency fees 
 therefor. It was proved that the company had 
 authorized him to receive notices of assign- 
 ment, and had agreed that notice to him sliould 
 be as valid as notice to them at their oflSce. 
 He received notice of the assignment, not as 
 the agent of the company, but in his capacity 
 as attorney for the assignee. Held, where two 
 capacities are united in one person, a notice 
 received in either is an effectual notice in both. 
 OaU v-Leuiis, 9 Q. B.,730; 16 L. J. Q. B., 
 119. 
 
 ■ 50. A. was authorized to sign policies for 
 B. Held, he was authorized to adjust losses. 
 I'razer v. GaUmaay, Faculty Dec, 1808 to 1810, 
 p. 298. 
 
 61. It was proven that the person who 
 signed the policy had been in the constant 
 habit of signing policies by the name of the 
 defendant. Held, sufficient to show that tlie 
 defendant held him out to the world as prop- 
 erly authorized. Neal t. Eroing, 1 Esp., 61 ; 
 Richardson v. Anderson, 1 Camp., 43 n.; 
 Haughton v. Ewbank, 4 id., 88. 
 
 62. The policy was subscribed by B., de. 
 fendant'3 agent, who afterwards agreed to refer 
 
 the claim to arbitrators, and they made their 
 award. Held, sufficient to render the award 
 binding on the defendant. Ooodson v. Brooke, 
 4 Camp., 163. 
 
 53. Proof that the agent had signed similar 
 memorandums on many other policies, and his 
 habit was to do so and advise the company. 
 Held, sufficient proof of his authority to sign 
 that in question; that the papers contain- 
 ing his signatures need not be produced. 
 Brockelbank v. Sugrue, 5 C. & P., 31 ; 1 Moo. & 
 R., 103; 1 B. & Ad., 81 ; 8 L. J. K. B., 371. 
 
 (b) Of the acts of the agenfs clerk, 
 broker or solicitor. 
 
 64. Time policy on ship, to expire October 
 5th. An agent agreed that it should be ex- 
 tended till she arrived at the point of destina- 
 tion. She was wrecked on the 7th. Prior to 
 the former date he was notified that his autlior- 
 ity had been revoked, but the committee, to 
 whom the matter of his agency had been re- 
 ferred, had made arrangements with him by 
 which he was to receive applications for in- 
 surance and reinsurance, to be submitted to 
 tlie office for approval, and tliat he should 
 made the applications binding until the in- 
 sured should have notice that they were dis- 
 approved. Held, he had authority to extend 
 the policy, and that the insurer was liable for 
 the loss. Leeds v. Mechanics Ins. Co., 8 N. Y., 
 351. 
 
 55. T. effected the insurance, and received 
 a commission from another agent of the com- 
 pany for doing it Held, T. was an agent of 
 tlie company. Meadowcraft v. Standard Ins. 
 Co., 61 Penn. St., 91. 
 
 56. Stipulated: "If other insurance shall 
 be made on the property not notified to this 
 corporation, this policy shall be void." A sub- 
 sequent insurance was made, of which P., an 
 agent of the insurer who had effected the pol- 
 icy, had notice. His appointment was in 
 writing to act as surveyor, and to take appli- 
 cations for insurance. He was never held out 
 to possess any power not included in the ap- 
 pointment. Held, a prior insurance notified 
 to the agent at the time the policy was effected 
 was within the scope of his authority; but ho 
 was not an agent to receive notice of subse- 
 quent insurance. Reversing s. c, 16 Barb., 
 511 (Wkioht and Mitchell, JJ., dissenting). 
 Wilson V. Genessee Mut. Ins. Co., 14 N. Y., 418. 
 
 58H 
 
10T9 
 
 PRINCIPAL AND AiiENT. 
 
 losa 
 
 When principal is bound. 
 
 57. Policy for one year; the name of W. 
 ■was indorsed upon it as agent for the com- 
 pauy. Conditioned: " No insurance, whether 
 original or continued, shall be binding until 
 actual payment of the premium." The son 
 of W. had acted as his clerk and assistant for 
 some years, and it was his custom, acting in 
 behalf of his father, to procure policies and 
 renewal certificates from this company, and 
 to deliver them without receiving the premi- 
 um from the persons insured. He delivered 
 a certificate renewing this policy for one year, 
 without exacting payment of the premium; 
 and a loss occurred before it was paid. Ileld, 
 the maxim, delegatus non potest delegare, did 
 not apply. Story on Agency, § 14. That an 
 insurance agent can authorize his clerk to 
 contract risks, deliver policies, collect premi- 
 ums, take payment of premiums in cash or 
 securities, and to give credit for premiums. 
 The act of the clerk in such cases is the act of 
 the agent, and binds the company as effectu- 
 ally as if it were done by the agent in person. 
 Held, alio, delivering the renewal certificate 
 to the agent's clerk clothed him with apparent 
 authority to deliver it to the insured without 
 exacting payment of premium, and his deliv- 
 ery, without exacting payment of preinium, 
 waived the condition mentioned. Bodine v. 
 Exchange Fire Ins. Co., 51 N. Y., 117. 
 
 58. Stipulated : " If any agent of this com- 
 pany, in the transaction of their business, shall 
 assume to violate these conditions, such viola- 
 tion shall be construed to be the act of the in- 
 sured, and shall render void this policy." HeUd, 
 as to all preliminary negotiations, the agent, 
 who solicited the insurance and wrote out the 
 application, was tlie agent of the insurers, and 
 not of the insured. Oolumbia Ins. Oo. v. 
 Cooper, 50 Penn. St., 331. 
 
 59. Insurer's agent filled up the application 
 and insured Signed it. The agent told insured, 
 that by the rules of the company the doings of 
 the agent were hot binding upon the company 
 as to rates. Insured, therefore, paid $12 more 
 than enough for the premium; the agent said, 
 that the payment of premium was necessary 
 to make the insurance take effect; and upon 
 this application a policy was issued; it also 
 appeared that the officers of the company had 
 told the agent that he must consider himself 
 the agent of the insured rather than of the 
 compatiy. Held, a caution of that kind could 
 not be regarded as changing the company's 
 
 540 
 
 agent into an agent for the insured. Bebee v. 
 Harford Mut. Ins. Co., 25 Conn., 51. 
 
 60. The agent was authorized to procuro 
 applications for insurance; the company 
 supplied him with printed blanks containing 
 interogatories to be answered by the applicant. 
 Held, the agent had authority to agree with 
 the applicant as to the terms which should be 
 used to express the facts intended to be stated 
 in tlie answers. Malleable Iron Works v. Phanix 
 Ins. Co., 25 Conn., 465. 
 
 61. Stipulated: "Any person other than 
 the insured, who may have procured this in- 
 surance to have been taken by this company, 
 shall be deemed to be the agent uf the insured 
 named in this policy, and not of this com- 
 pany under any circumstances whatever." 
 H., an insurance agent, made application to 
 the general agent of the insurer for a policy 
 which was sent to H. for him to deliver to 
 insured and to collect the premium. Udd, 
 the words of the stipulation had " no magic 
 power residing in them capable to transmute 
 the real into the unreal, nor had they power 
 to make the agent of the company the; agent 
 of the Insured." Commereial Ins. Co. v. Izes, 
 56 111., 403. 
 
 62. J., insurer's resident agent at Chicago, 
 was officially designated " manager," and 
 had in his employ a clerk and a bookkeeper. 
 J. authorized 8. to solicit is.ppUcations for 
 policies, to deliver them and to collect the 
 premiums. For such services S. was to receive 
 forty per cent, on the first year's premium. 
 8. received an application — semi-annual pre 
 miums, $25.49. He took the policy to insured 
 and received the first semi-annual preinium. 
 About two months thereafter, 8. suggested to 
 insured the propriety of paying the second 
 semi-annual premium before it was due, to 
 which insured responded by making pay- 
 ment, taking the receipt of 8. for the whole 
 year's premium. A few days thereafter she 
 sent the receipt to the office of 3. and asked 
 to have the second semi-annual payment re- 
 funded because it was not due. A person, 
 engaged at a desk in the office, examined the 
 receipt and stated, that J., was at Detroit, that 
 application must be made to him on his 
 return. A second request to refund the money 
 was made at the office, when the clerk in- 
 fonned the applicant that J. had not returned, 
 that the money could not be refunded because 
 insured had elected to make the payment be^ 
 
1081 
 
 PRINCIPAL AND AGENT. 
 
 1082 
 
 When principal is bound. 
 
 fore it was due. Held, J. had the right to 
 authorize S. to contract for risks, to deliver 
 policies and to collect premiums; that the act 
 of 8. in such cases was the act of J., and bound 
 tlie company as effectually as if it were done 
 by J. in person. The maxim, delegaiiis non po- 
 test delegare does not apply in such a case (cit- 
 ing Bodine «. Exchange Ins. Co., 51 K. Y., 123}. 
 Hence, the payment to S. was a valid pay- 
 ment to the company. Eclectic Life In». Go. 
 V. Fdhrenkrug, 68 111., 463. 
 
 63. Stipulated: "Not valid until counter- 
 signed by J. A. Corby." Defendants sup- 
 plied Corby with policies executed in blank 
 for him to write in the subject matter, the 
 amount of premium and to deliver them to 
 persons effecting insurance with the com- 
 pany. The policy was filled up by B. and 
 countersigned " J. A. Corby by B." Evidence 
 was given tending to prove that Corby and B. 
 occupied the same office, that B. had authority 
 to solicit insurance for Corby, to fill up pol- 
 icies and to countersign them for him; that 
 he filled up this, countersigned, and delivered 
 it to the plaintiff, as he had done in many 
 other instances ; that the plaintiff paid a part 
 of the premium, $20, to B., and subsequently 
 the balance of it, $16, to Corby, who examined 
 the policy and returned it to the plaintiff. 
 Corby was examined as a witness, and denied 
 that any of the premium was ever paid to 
 him, that he ever delivered the policy to the 
 plaintiff, that he ever gave authority to B. to 
 countersign policies for him, or that he ever 
 reported this policy to the company. The 
 court refused to admit the execution of the 
 policy and compelled the plaintiff to take a 
 nonsuit. Held, error, for there was evidence 
 upon which the jury would have been justified 
 in finding execution and delivery of the 
 policy. Grady v. American Central Ins. Co., 
 60 Mo., llfi. 
 
 64. A. was authorized to receive applica- 
 tions, issue policies, and receive premiums. 
 He delivered a policy to insured, which, by its 
 printed terms, prohibited other insurance. 
 Subsequently it was returned to him, and he, 
 being asked to give permission to make other 
 insurance, wrote upon it, "Other insurance 
 permitted without notice until required." 
 Held, the permission was within the scope of 
 his authority. Warner v. Peoria Marine and 
 Fire Int. Co., 14 Wis., 818. 
 
 65. P. & S., copartners, doing business as 
 
 insurance agents. Insurers supplied them 
 with blank policies, to be filled up and deliv. 
 ered in pursuance of any contract or contracts 
 made with the appliciiut, but not to be valid 
 until countersigned by P. Held, P. alone 
 might be authorized to countersign, and yet P. 
 <& S. be insurers' agents in other respects ; if 
 S. had possession of the policy, filled it up in 
 accordance with the terms of the bargain, and 
 P. countersigned it, and then insured got ii from 
 tlie firm of P. & S., there was evidence tending 
 to show that P. & S. were authorized to acf for 
 insurers in the business. Newman v. Spring- 
 field Fire and Marine Ins. Co., 17 Minn., 123. 
 
 66. A. & B. were copartners as insurance 
 agents, and joint agents of some companies ; 
 but A. was sole agent of others, and B. was sole 
 agent of others. In the absence of A., a pol- 
 icy of insurance was issued by B. for one of 
 the companies of which A. was sole agent; it 
 was conditioned "Not valid until counter- 
 signed by an authorized agent." But B. 
 countersigned it by the firm of A. & B., and 
 the risk was reported to the general agent at 
 Erie, who held it under advisement and then 
 ordered the agent to cancel it. The reVnsured 
 had not any notice that the general agent was 
 dissatisfied with the risk, nor was any offer 
 made to refund the premium until long after 
 the property was consumed. Held, it was not 
 necessary to determine whether A. could au- 
 thorize B. to act in his stead as agent for the 
 company, because when A. returned, he was 
 informed as to what B. had done, and no 
 steps were taken to undo it; nor was any of- 
 fer made to return the premium and cancel 
 the contract. That the general agent was 
 advised of the absence of A. at the time the 
 policy was issued, and he did not repudiate 
 tlie act of B. That these facts ratified the act 
 of B. who countersigned tlie policy, and there- 
 fore the reinsurer was liable (citing .^tna Ins. 
 Co. «. Magnire, 51 111., 342 ; Insurance Co. v 
 Webster, 6 Wall., 129). United Life Ins Co. v. 
 Insurance Co. of North America, 42 Ind., 588. 
 
 67. C. was appointed agent to contract in- 
 surances for the defendants on first class lives, 
 not exceeding £2,000 on each. His acceptance 
 of all risks to be signified by a memorandum 
 signed by him and N., the company's medical 
 officer. Policies to be issued by principals 
 upon receipt of the memorandum. E. & W. 
 acted as subagents for C. They signed the 
 memorandum, and the medical officer affixed 
 
 •541 
 
1083 
 
 PRINCIPAL AND AGENT. 
 
 1084 
 
 When the prindpal is not bound. 
 
 his signature, and E. & W. granted a receipt 
 for the annual premium in the name of C, 
 " by E. & W." Seld, the contract was entered 
 into by C, notwithstanding the papers were 
 signed by E. & W. Affirmed by the Lord 
 Justices, July 9, 1859. liossiter v. Trafalgar 
 Life Ass. Aat'n, 27 Beav., 377. 
 
 II. When the pkincipal is not bound. 
 
 (a) Of the acts cmd hnowledge of the 
 agent. 
 
 1. The charter provided: " Every contract, 
 bargain and other agreement shall be in writ- 
 ing or print, under the corporate seal, and 
 signed by the president, or in his absence or 
 inability to serve, by the vice-president or oth- 
 er officers, etc.,- and duly attested by the secre- 
 tary or other officers," etc. The plaintiff, a 
 broker, applied for insurance on a boat for a 
 definite amount, was informed tliat it would 
 be taken ; but the comjmny sent to the broker 
 its own policy for a part of the sum, and the 
 policies of three other companies for tlie bal- 
 jince. The broker hesitated about taking 
 them, but the secretary, in a letter to him, 
 wrote, " In handing the policies to the plaint- 
 iff, you can say that if the boat is not insured 
 in offices satisfactory to him, we will have 
 them Canceled; but though they are not 
 reinsurances, yet in case of loss we feel our- 
 selves bound for a satisfjictory adjustment. 
 We deem the companies good, and if any par- 
 ties can settle with tbem we can." One of the 
 substituted companies became insolvent, and 
 a special action on the case was brought 
 against this company. Held, the defendant's 
 secretary had no general authority to guaran- 
 ty the solvency of the substituted companies ; 
 and if he had, there was no such guaranty 
 proven ; that the letter undertook only to have 
 
 . a satisfactory determination of the amount of 
 the loss and its apportionment between the in- 
 surers. Oonttant v. Insurance Co., 3 Wall. Jr., 
 813. 
 
 2. Stipulated: "The interest of insured in 
 this policy is not assignable, unless by con- 
 sent of this corporation, given in writing; and 
 in case of any transfer of the interest of the 
 insured, by sale or otherwise, without such 
 consent, the policy shall cease. Upon the 
 lack of the policy two blank assignments 
 
 643 
 
 were printed, concluding as follows: "Sub- 
 ject, nevertheless, to the conditions therein 
 
 contained. , secretary." These were 
 
 filled up, the first to N. H. W., and the second 
 by him to the plaintiflf. The word " secre- 
 tary " in each was erased, and they were 
 signed " H. A. Brewster, agent." Seld, Brew- 
 ster's assent as agent did not bind the insur- 
 ers. Stringham v. 8t. Nicholas Ins. Go., 42 N. 
 Y. (3 Keyes), 280; B. c, 4 Abb. Dec, 315; 37 
 How. Pr., 365. 
 
 3. A. & B. were agents for countersigning 
 policies on risks accepted by the company 
 Meld, the court erred in charging the juiy that 
 A. & B. had authority to waive preliminary 
 proofs of loss, there being no evidence in the 
 case tending to show that the defendants ever 
 recognized or had knowledge that A. and B. 
 had waived proofs of loss on prior occasions. 
 Authority to receive proposals for insurance, 
 countersign and deliver policies, confers no 
 power to adjust losses or waive the prelimin- 
 ary proofs required by the terms of the con- 
 tract. N. Y. Ct. of App. Bush v. WestcJtesier 
 Fire Ins. Co., 5 Ins. L. J., 207 ; s. c, 2 N. Y. 
 S. C, 629. 
 
 4. W., the general agent of defendant in 
 New York city, was furnished with blank 
 policies, signed by the president and secre- 
 tary, to take effect when countersigned by 
 him. He appointed subagents, of whom 
 plaintiff was one, gave them authority to 
 make contracts binding upon the company, 
 from date of application until referred to and 
 rejected by him. The plaintiff, a forwarding 
 and commission merchant at Albany, held in 
 store for sale, as factor, a quantity of flour. 
 He wrote to W. in' New York for insurance, 
 $4,000 ; the letter did not reach W. until after the 
 property had been destroyed by fire. After W. 
 knew of the loss he filled up a policy and sent 
 it to the plaintiff. Held, though the sub- 
 agent's appointment was authorized or ratified 
 by the company, he had no authority to make 
 a contract in his own favor. Bently v. Colum- 
 bia Ins. Co., 17 N. Y., 421 ; 8. c, 19 Barb., 595. 
 
 5. V. was authorized to receive applications 
 for insurance and to forward them to defend- 
 ants. He inserted the items of property which 
 plaintiff desired to insure, and they affixed 
 their signatures to it, with the understanding 
 that V. should write in the necessary answers 
 to the intoriogatories. He made no inquiries 
 about incumbrances, but inserted in it: 
 
1085 
 
 PRINCIPAL AND AGENT. 
 
 1086 
 
 When the principal is not boond. 
 
 "Tliere is no incumbtance except the P. 
 mortgage." There were other incumbrances. 
 Edd, the plaintiff made V. their agent to fill 
 up the application, and they must suffer for 
 his misrepresentations. Smith v. Empire Ins. 
 Co., 25 Barb., 497. 
 
 6. The defendant's general agent took from 
 insured a note for the premium, delivered the 
 policy, and agreed to employ him as medical 
 examiner, and to credit his fees against the 
 note. Held,ihG transaction was not one which 
 would come under the general powers and 
 duties of the general agent; that as the princi- 
 pal had not ratified the act, the note and policy 
 were both void. Anchor Life Ins. Co. v. Pease, 
 44 How. Pr., 385. 
 
 7. The by-laws of the company provided : 
 " No policy shall be delivered until after the 
 payment of the premium." The directors 
 voted : " Policies shall be considered canceled 
 if premium is not paid within sixty days from 
 date of policy." Held, the president of the 
 company had no authority to waive payment 
 of premium, and his assurance that " the pol- 
 icy shall be kept good for the benefit of the 
 mortgagee," to whom the policy was made 
 payable in case of loss, was immaterial. Bax- 
 ter V. Chelsea Mutual Fire Ins. Co., 1 Allen, 
 194. 
 
 8. The Mechanics, tlie Union, and the Quin- 
 cy (defendant), insured the premises. The 
 two first agreed to submit the question of dam- 
 ages to arbitrators. The defendant had an 
 agent at the place where the loss occtnred, 
 who acquiesced in the appointment of arbi- 
 trators. He was a director in the defendant 
 company, being an agent for about twenty 
 companies in Boston. One of his signs, ex- 
 hibited at his office, declared him the agent 
 of the defendant He had been, years before, 
 one of the committee to adjust defendant's 
 losses, had adjusted, and had been also one of 
 the executive committee of the defendant com- 
 pany. There was evidence tending to show 
 that he adjusted losses for the defendant at 
 Boston. Held, his adoption of a referee pre- 
 viously selected by other parties, was not 
 within the scope of his agency, and did not 
 bind the defendants. Turner o. Quincff Mvi. 
 Ins. Co., 109 Mass., 508. 
 
 9. The agent had authority to receive appli- 
 cations for policies on lives, transmit them to 
 the home office, receive, countersign and de- 
 liver policies, and collect the premiums. Held, 
 
 his principal was not chargeable if the agent 
 inserted in the application untrue and fraudu- 
 lent matters, notwithstanding insured affixed 
 the signature without reading what the agent 
 had written. Byan v. World Mutual Life Ins. 
 Co., 41 Conn., 168. 
 
 10. The application was written by the sur- 
 veyor of a mutual insurance company, who 
 omitted to set forth the buildings that were 
 within ten rods of those insured, contrary to 
 an express condition. Act of incorporation 
 made the insured a member of the corpora- 
 tion. Held, the surveyor was the agent of the 
 insured, and the policy void. SusgueJianna 
 Ins. Co. «. Perrine, 7 W. & S., 318. 
 
 1 1. The master gave a promissory note for 
 the premium, signed: "For steamer Glasgow, 
 owners, G. W. Johnson, captain." Held, the 
 master could not bind the owners by such a 
 note, unless there was a custom upon which 
 the right could be founded ; that the custom 
 must be clear and distinct, not contradicted ; 
 that all doubt must be wholly eliminated from 
 it; that as the evidence could not bear this^ 
 test, a finding in favor of the plaintiff must be 
 set aside. Adams v. Pittsburg Ins. Co., 76 
 Penn. St., 411. 
 
 ] 2. The agent's authority was limited to re- 
 ceiving and transmitting written applications, 
 upon which the directors were to decide 
 whether they would enter into contract with 
 the applicant, and upon what terms, of which 
 the applicant had notice. Held, a, policy is- 
 sued upon an application taken by the agent, 
 and transmitted to the directors, could not be 
 affected by facts not stated in the application, 
 though known by the agent, because he was not 
 asent for the purpose of receiving such notice. 
 Wilson V. Conway Fire Ins. Co., 4 R. I., 241. 
 
 1 3. Cox was agent for insurer, to solicit ap- 
 plications for insurance, and to countersign 
 policies. He viewed the store of insured, and 
 represented that he was ready to obtain insur- 
 ance upon it. About four weeks after, insured 
 wrote Cox, requesting him to obtain insur- 
 ance on his store and goods, in a stock insur- 
 ance company; and he procured a policy in 
 compliance with the wishes of insured. Cox 
 signed the name of insured to an application 
 for the policy, and in answer to an interroga- 
 tory therein propounded, stated tliat there was 
 no mortgage upon the premises. There was 
 an outstanding mortgage on the land amount- 
 ing to |200. HOd, the plaintiff could not re- 
 
 543 
 
1087 
 
 PRINCIPAL AND AGENT. 
 
 1088 
 
 When the principal is not bound. 
 
 cover. SicJtardson v. Maine Ins. Co., 46 Me., 
 394. 
 
 14. B., a broker, applied in behalf of A., to 
 the Phoenix Co., for insurance upon steamer, 
 and indorsed her age and rate as A No. 1, on 
 the application. An agent of H., the plaint- 
 iff, called upon the broker for the purpose of 
 obtaining insurance in behalf of him. B. 
 told him that negotiations were pending in 
 New York for insurance;- that he would let 
 him know as soon as he heard about it, and 
 B. then used the same application to these in- 
 surers for a policy upon the interest of plaint- 
 ift; but no representations were made to B. by 
 plaintiff's agent. Held, the representations 
 made by B., to a different company, could not 
 affect the rights of plaintiff, there bing no 
 evidence in the case that plaintiff or his agent 
 adopted them. Harmony Fire and Marine 
 Ins. Co., V. Hazlehv/rst, 30 Md., 380. 
 
 15. The complainant liad notice that the 
 agent had not authority to make a binding 
 contract to insure. Held, any contract made 
 by the agent was not obligatory upon the 
 principal, because the complainant knew the 
 agent had not authority to make it. Winne- 
 sheik Ins. Co. v. Holsgrafe, 53 111., 516. 
 
 16. The knowledge that the agent acquires 
 by rumor, or by information in his individual 
 capacity, and not as agent, is not notice to his 
 principal (citing Fulton Bank v. New York 
 and Sharon Canal Co., 4 Paige, 127). Keenan 
 V. Dvbuque Mutval Fire Ins Co., 13 Iowa, 375. 
 
 17. Insurer's agent knew of an assignment 
 of the poUcy, but made no objection to it. 
 He was not asked to consent, and no evidence 
 was given to ^how that he had any power to 
 waive the express condition of the policy on 
 that subject. Hdd, it was error for the court 
 to instruct, that if the agent knew of the as- 
 signment and did not object thereto, his 
 knowledge and failure to object would pre- 
 vent the transfer from avoiding the policy. 
 Ayres r>. Sartford Fire Ins. Co., 17 Iowa, 176. 
 
 1 8. The defendant authorized A. to under- 
 write policies on marine risks, not exceeding 
 £100 by any one vessel. He underwrote a 
 policy for £150. It was well known in almost 
 all, if not in all cases, an agent authorized to 
 do this kind of business in Liverpool, was 
 limited to a particular sum, but what sum was 
 generally unknown. Held, the whole contract 
 ■was void, as against the defendant. Baines ». 
 
 g, 1 L. B. Ex., 830; 4 H. & C, 511 ; 35 L. 
 644 
 
 J. Ex., 194; 14 W. R., 782; 14 L. T. (N. S.), 
 733. 
 
 19. The plaintiff paid the premium to de- 
 fendant's agent, who took the proposal and 
 promised to deliver a policy. He never sent 
 the premium to his principals, and fraudu- 
 lently appropriated the money to his own use. 
 There was no evidence that he had any author- 
 ity either to grant or agree to grant policies. 
 Hdd, no contract. Linford v. ProtindaJ, 
 Horse and Cattle Ins. Co., 34 Beav., 291 ; 10 
 Jur. (N. S.), 1066; 11 L. T. (N. S.), 330. 
 
 20. The company's agents were given di- 
 roctions not to take a greater risk than £3,000 
 at any one place. They took a risk on a 
 building for £750, of which the company was 
 notified, and some time thereafter they had 
 goods of their own in the same building, and 
 accepted a risk for themselves to the amount 
 of £3,000, of which they gave due notice to 
 the company. After the loss occurred, the 
 company refused to pay mure than £3,000 on 
 the whole loss ; £750 to the owner of building 
 and £3,230 to the agents, which was received 
 without prejudice; and this bill was brought 
 to compel payment of the balance of the 
 claim. Held, it must be dismissed, for it was 
 the agents duty to have called the attention of 
 the company to the former risk when they 
 gave notice of the last, because they had ex- 
 ceeded their instructions. Tucker o. Proein- 
 cial Ins. Co., 7 Grant's Ch., 123. 
 
 (b) Of the acta of the agenfa clerk, 
 broker or aolidtor. 
 
 21. On cargo, damages to be ascertained 
 by a separation and sale of goods damaged. 
 Insurers designated an auctioneer to sell them. 
 Insured sent them to him, and he sold them 
 for account of insurers, without paying over 
 the proceeds to either party. Held, the ap- 
 pointment was the joint act of both parties, 
 hence tlie defendants were not responsible for 
 tlie loss caused by auctioneer's failure to pay 
 over the proceeds, unless the defendants took 
 the goods and had them sold as their own. 
 JelUnghaus v. yea York Ins. Co., 4 Sandf., 18; 
 s. c, 8 Bos., 281 ; 6 Duer, 1. 
 
 22. The policy stated that the insured 
 would be bound by the application; that for 
 the purpose of making it the surveyor would 
 be deemed the agent of insured as well as of 
 the company. Held, the surveyor was the 
 
1089 
 
 PRINCIPAL AND AGENT. 
 
 1090 
 
 When the principal is not bound. 
 
 agent of both, and the application was the 
 act of the insured. Sexton v. Montgomery 
 County Mut. Ins. Co., 9 Barb., 191. 
 
 23. Stipulated: "Every insurance agent, 
 broker or other person forwarding applica- 
 tions or receiving premiums, is the agent of 
 the applicant and not of the company. Held, 
 by the terms of the contract the person who 
 made the application was not the agent of in- 
 surer, and his knowledge was not the knowl- 
 edge of the insurer. Abbott v. Shaumut Mu- 
 tual Fire Inn. Co., 3 Allen, 213. 
 
 84. Stipulated : " The company shall not 
 be bound by anj- act done or statement, made 
 to or by any agent or othen, not contained in 
 this application. Every insurance agent, 
 broker or other person forwarding applica- 
 tions or receiving premiums is the agent of 
 the applicant and not of the company." Held, 
 representations, whether fraudulent or other- 
 wise made by the company's agent, were not 
 admissible in evidence against the company. 
 Shaumut Mvt. Ins. Co. v. Steven*, 9 Allen, 332. 
 25. The agent was authorized to make sur- 
 veys and take and transmit applications for 
 insurance, serve notices and collect assess- 
 ments. A policy, issued through him, pro- 
 hibited insurance exceeding two-thirds of 
 the value of the subject insured. Held, 
 notice to him that insurance had been 
 made exceeding that limit was not notice to 
 the company. MitcheU v. Lycoming Mut. Ins. 
 Co.,51Penn. St., 403. 
 
 2S. L., an insurance broker, in the habit of 
 picking up risks for any company that would 
 accept them, solicited plaintifif to take a pol- 
 icy npon his stock in the defendant company. 
 The company's local agent accepted the risk 
 and delivered the policy to L., who delivered 
 It to plaintiff, collected the premium and re- 
 tained his usual commission. Held, L. was 
 the agent of the plaintiff and not of the com- 
 pany. Lycoming Ins. Co. v. Subin, (8. C. 111.), 
 8 Chi. Leg. News, 150. 
 
 27. Application for a policy upon the life 
 of plaintiff's husband. Stipulated: "Not to 
 be binding, until all premium or premiums, 
 as stated therein, which shall be due or over- 
 due, shall be received by said company, or by 
 some person authorized to receive the same, du- 
 ring the lifetime of the party herein insured." 
 G. received the policy to deliver and collect the 
 premium. He called upon the person whose 
 life was insured, for the premium, who said he 
 35 
 
 was not able to pay it. G. received a note 
 of another person for a part of the premium, 
 and agreed with insured that the balance 
 should be paid at some future time. Held, 
 before insurers could be bound by the act of 
 G., evidence must be given tending to show 
 that G. had been allowed by insurers, at his 
 option, to substitute his own personal liability 
 to the company for the money which he was 
 to collect as premiums ; that insurers' reliance 
 upon G., to account faithfully for all moneys 
 collected, was not evidence tending to show 
 that insurers trusted either his judgment or 
 his responsibility. Continentai Life Ins. Co. 
 V. Will^, 24 Mich., 268. Nor did evidence 
 that G. had paid to his principals premiums 
 he had not collected, tend to show that he had 
 authority to discharge other premiums with- 
 out actual payment. Ibid. 
 
 28. Insured sought to charge insurers with 
 notice that certain goods, prohibited by the 
 printed terms of the policy, were part of tlie 
 property insured. One of two persons who 
 were doing business as insurance brokers 
 asked permission of insured to effect addi- 
 tional insurance for them. He visited the of- 
 fice of insurer and described the property as 
 a steam barrel factory. Insurer's secretary 
 told him to send a form or copy of a policy, 
 such as was required, and the company would 
 make one. Held, the evidence was not suffi- 
 cient to show that the person who procured 
 the policy was the agent of the insurers. 
 MeFarland v. Peabody Ins. Co., 6 W. Va., 425. 
 
 29. Stipulated : " If the insured has not a 
 title unincumbered, it shall be stated on the 
 application." The premises insured were sub- 
 ject to a mortgage not mentioned in the appli- 
 cation ; and the plaintiff sought to avoid the 
 effect of that omission by proving that defend- 
 ant's agent had notice of the incumbrance; 
 that he filled up the application, and that the 
 insured was ignorant of the condition. Held, 
 the evidence could not be heard for that pur- 
 pose, because the policy declared that all per- 
 sons who take applications for policies shall 
 be deemed the agent of the applicant and not 
 of the company, so far as relates to the mak- 
 ing of the application. Johnstone v. Niagara 
 Dist. Mut. Ins. Co., 13 U. C. C. P., 831. 
 
 III. Of eatification and affiemanck. 
 
 1. Insurance upon a vessel by one part 
 
 545 
 
1091 
 
 PRINCIPAL AND AGENT. 
 
 1092 
 
 Batiflcation and affiimance — Revocation — Agent's liability. 
 
 owner for himself and other owners without 
 their previous authority. Held, they might 
 ratify his act after the loss of the vessel ; and 
 bringing a suit in their name on the policy is 
 a ratification. Finney d. Fairhaven In». Oo., 
 5 Met., 193. 
 
 2. P., professing to act for the plaintiffs, 
 solicited the defendant to make insurance in 
 that company. He forwarded the application 
 and a policy was sent to the defendant, with 
 the name of P. indorsed on it as agent. Sub- 
 sequently P. executed a bond to the company 
 for the due performance of his duties. Held, 
 the defendant's acts ratified and confirmed the 
 act of P. in o1)taining the application. 
 Fa/rmera Mut. Ins. Co. v. Manhall, 29 Vt., 23. 
 
 3. The authority of an agent is exclusively 
 personal. But the principal and his agent 
 may ratify the acts of aa unauthorized person ; 
 and the principal is bound by the ratification 
 made by his agent, if the agent had authority 
 to do the thing which he ratified or adoi)ted 
 (citing Story on Agency, §§ 239, 244, 349). 
 Mound City Life Ins. Co. v. Huth, 49 Ala., 529. 
 
 lY. Of ebvocation. 
 
 1. 8. became the agent of the Connecticut 
 Mutual Life Ins. Co. in October, 1849, by ac- 
 ceptance of a circular which stated, "The 
 ubual compensation of agents, so far as we 
 know, is ten per cent, commission on the pre- 
 miums, with one dollar for each policy, and 
 five per cent, on the premiums on the renewal 
 of policies." A second circular stated, " For 
 your services as above you will be allowed a 
 commission of ten per cent, on the first pre- 
 miums, cash and notes, and five per cent, nn 
 all subsequent renewals so long as you con- 
 tinue the agent of the company." Held, evi- 
 dence of a custom on the part of insurance 
 companies to pay five per cent, on the renewal 
 premiums upon policies procured by persons 
 whose agencies had been revoked was inad- 
 missible, because the last circular was substi- 
 tuted in place of the first; that it amountedto 
 an express contract, and limited the agency to 
 the pleasure of the company; that the com- 
 pany had the right to terminate the agency, 
 and therefore to terminate the right of the 
 agent to commission on renewal premiums. 
 Stagg v. Insurance Co., 10 Wall., 589. 
 
 2. H. was authorized by insured to apply to 
 insurer for permission to make additions to 
 
 646 
 
 the building. Held, he had no authority to 
 agree to rescind the contract of insurance. 
 Van Valkenburgh v. Lenox Fire Int. Co., 51 N. 
 Y., 465. 
 
 3. The rules of the insurance company pro- 
 vided that agents should receive a commission 
 of five per cent, on each renewal collected and 
 transmitted by them. The plaintiiTs appoint- 
 ment was revoked, and he claimed the right 
 to recover commissions for premiums on re- 
 newals collected by his successor upon poll- 
 cies procured before revocation of the agency. 
 Held, he was not entitled to recover. Spauld- 
 ing V. Ntw York Life Ins. Co., 61 Me., 329. 
 
 4. The broker procured insurance for his 
 principal, and was debited with the premium, 
 for which he signed a debit note. The policy 
 was sent to the broker's oiSce, and refused by 
 his clerks, who directed it to be canceled. It 
 was accordingly returned to insurers and by 
 them indorsed, " Canceled ;" but the clerks dis- 
 covered their mistake, and subsequently ap- 
 plied to have it reinstated, which was refused 
 because the ship was then aground. Held, the 
 broker's authority to procure the contract of 
 insurance gave him no right to have it re- 
 scinded. Xenos D. Wiekham, 2 L. R. Eng. & 
 Jr. App., 296; 14 C. B. (N. S.), 861; 16 L. T. 
 (N. S.), 800; 16 W. R., 38; 36 L. J. C. P., 313; 
 reversing s. c, 13 C. B. (N. S.), 381 ; 14 id., 
 435; 9 Jur. (N. S.), 471; 10 id., 339; 11 W. 
 R., 1067; 33 L. J. C. P., 13. 
 
 V. Of the agent's liability. 
 
 1. A ship destined to a port, suspected to he 
 then blockaded, was directed to call at a par- 
 ticular place for orders from a correspondent 
 who resided at the port of destination, to 
 whom she was unqualifiedly addressed. He 
 ordered her to that port She was taken and 
 condemned for a breach of the blockade. 
 Held, he was not liable if he acted in good 
 faith. Liotard v. Orwues, 8 Caines, 226. 
 
 2. On Goods. Insured employed an agent 
 to settle for a total loss, which he promised to 
 do, or to return the policy uncanceled ; but con- 
 trary to this promise, either through mistake 
 or negligence, the agent settled as for an aver- 
 age loss of twenty per cent. Held, the agent 
 became responsible for Uie whole amount 
 which ought to have been received under tlia 
 policy. Rundle v. Moore, 8 Johns. C, 36. 
 
 3. G., about to depart from New York on a 
 
1093 
 
 PRINCIPAL AND AGENT. 
 
 1094 
 
 Agents' liability — Agents of ships. 
 
 voyage to the East Indies, gave an order for 
 insurance on his life to the amount of £3,000 
 sterling, which was accepted by the insurance 
 company at the instance of the agent of M., 
 who undertook to complete the business. The 
 premium was paid for one year, and the policy 
 insured the life of G. for ten years; but M., 
 afterwards, without the knowledge or consent 
 of G., alleged a mistake, and procured insur- 
 ers to cancel the policy, and to execute an- 
 other for £450, the difference of premium be- 
 ing refunded. Reld, on the death of G., M., 
 by procuring a valid and existing conti'act to 
 be canceled, substituted himself as insurer of 
 G.'s life, and was answerable to the represen- 
 tatives of G. for the amount insured by the 
 original policy, less the premium, ffrny c. 
 Murray, 3 Johns. Ch., 167. 
 
 4. If the broker who procured the insur- 
 ance is warned by his principal not to pay the 
 premium, and he disregards the warning, he 
 cannot recover it of the insured. Shuemaker 
 V. SmiiK 2 Binn., 239. 
 
 a. The company was unincorporated; but 
 the policy was stgned by " J. Jackson, presi- 
 dent; S. Chandler, assistant secretary." Busi- I 
 uess cards were issued, giving the name of the 
 company and a list of the directors; but no 
 stock had been subscribed or paid in. The 
 defendants were directors selected in New 
 Jersey. SddL, if an agent contracts as agent, 
 and there is not a legally responsible principal 
 to whom resort may be had, the law presumes 
 that the agent contracted on his personal re- 
 sponsibility, and intended to bind himself; 
 for in no other way would the contract have 
 any validity (citing Story on Agency, sec. 280, 
 281, 283; 2 Kent's Com., 630; Dnnlap's Paley 
 on Agency, 374; Kellner b. Baxter, L. R. Q. C. 
 P., 174; Pnrnwall t. Coombes, 5 M. & G., 736; 
 Bay o. Cook, 33 N. J., 343). JleML, also, when 
 a joint stock company is in the preliminary 
 stages of formation, before an act of incorpo- 
 ration is procured, and where tliere is a pre- 
 liminary board of directors, those who have 
 consented to become directors, or have know- 
 ingly allowed themselves to be held out as 
 directors, are responsible as principals or 
 partners for all contracts, express or implied, 
 within the scope of the business of the direc- 
 tion (citing Fox v. Clifton, 9 Bing., 115; Mad- 
 dock V. Marshall, 16 Com. B. (N. S.), 387; 8. 
 C. in Exch., 17 id., 838; Collingwood o. Berke- 
 ly, 15 id^ 145; Bell v. Francis, 9 C. & P., 66; 
 
 Collyer on Partnership, sec. 1086). Booth d. 
 Wonderly, 36 N. J., 350. 
 
 6. The plaintiff requested the defendant to 
 procure insurance on a cargo of corn, but no 
 other directions were given. Private under- 
 writers did not have in their policies exemp- 
 tions as to amin ; but the Royal Exchange Ass. 
 Co.'s policy stipulated : " Free from average on 
 corn unless general, unless otherwise specially 
 agreed." The defendant procured insurance 
 of this company. There was a partial loss, 
 which was exempted under the policy. ITdd, 
 there was no cause of action against the de- 
 fendant Comber v. Anderson, 1 Camp., 523. 
 
 7. The debtor of a testator had his life in- 
 sured for £2,500 to secure the debt in part, 
 which amounted to £4,000. The executor 
 procured a further insurance of £3,500 on the 
 debtor's life, because he ascertained that the 
 debtor was unable to pay the debt or the 
 premiums when they became due; and, after 
 paying the premiums on this second policy 
 for several years, he allowed it to lapse, be- 
 cause the assets of the testator were insuf. 
 ficient to pay debts and legacies. Held, the 
 executor was liable for the sum insured, less 
 the premiums paidbyhim; forhavingeffected 
 the policy he made himself a trustee of it for 
 the benefit of the estate, and had no right to 
 allow it to lapse without the consent of the 
 eestuis que trust, or the sanction of the court. 
 Gamer e. Moore, 24 L. J. Ch., 687; 3 Drew, 
 277. 
 
 8. Plaintiffs intrusted defendants with a 
 quantity of flour to be sold at Toronto, or to 
 be sent to Quebec for sale, and directed them 
 in the event of its being sent to Quebec, to 
 have it insured. It was shipped for Quebec, 
 and insured in the British American Insur- 
 ance Company ; but the policies of that com- 
 pany excepted losses caused by the want of 
 ordinary care and skill of the master and 
 crew; and it defended successfully against the 
 suit of the insured. This action was brought 
 against the defendants, resting their liability 
 upon a want of care and skill in taking a pol- 
 icy with such exceptions in it Seld, no cause 
 of action. Silverfhome ®. Gillespie, 9 U. C. Q. 
 B., 414. 
 
 VI. Agents of ships. 
 
 1. Tlie defendants were owners of the 
 schooner B.N.Smith. S. owned one-fourth; 
 the other three-fourtlis were owned by 
 
 547 
 
1095 
 
 PRINCIPAL AND AGENT. 
 
 1096 
 
 Generally. 
 
 six other defendants, each one-eighth. The 
 plaintiffs were shipping and commissioQ 
 merchants, and acted as agents of the schooner, 
 having been appointed by S. a former master. 
 In February, 1855, the plaintiffs insured her 
 for $3,500 to take the place of a policy by the 
 Reliance Insurance Company, "hich had 
 failed, which last policy was then canceled ; 
 and this action was brought against the de- 
 fendants as Joint owners to recover a balance 
 due for advances made by them in effecting 
 insurances. Held, they could not recover un- 
 less the proof was clear that the several owners 
 gave express authority to malce the insurance ; 
 that the authority conferred upon the plaint- 
 tiffs to act as ship's husband, was not sufficient. 
 McOready v. WoodhuU, 34 Barb., 80. 
 
 2. One tenant in common, of a vessel, has no 
 right, by virtue of such relation, to cause in- 
 surance to be made for his cotenant " on 
 property on board the vessel." Foster v. 
 United States Ins. Co., 11 Pick., 85. Nor has 
 the master that right. Ibid. 
 
 3. A power given to act as husband of a 
 ship gives no right to insure it, unless there 
 is a general direction from all the part owners 
 or a particular direction from each. French v. 
 Backho'use, 5 Burr., 2737. 
 
 4. One part owner of a ship has no implied 
 authority to order insurance to be made for 
 account of other part owners ; but if they are 
 carrying on business together in partnership, 
 and the insurance was ordered in the partner- 
 ship name, they are all liable for the prem- 
 ium. Hooper v. iMsby, 4 Camp., 66. 
 
 5. Action to recover premiums for policies 
 made in the name of owners. Held, one part 
 owner cannot, without express authority, bind 
 another part owner for insurances made in re- 
 spect of the interests of the latter. Bell v. 
 Humphries, 2 Stark., 345. 
 
 VII. Geneeally. 
 
 1. Master's authority. It is within the 
 scope of the master's authority to appoint an 
 agent to defend the captured property ; such 
 an agent becomes the agent of insurer after 
 abandonment, and the insurer must look to 
 him for money received on account of the 
 property. Miller v. DePeyster, 3 Gaines, 801. 
 
 2. One cannot act for both parties. The 
 -ffitna insured $5,000 on a woolen manufactory. 
 The National reinsured the .^tna $3,000, S. 
 
 548 
 
 being secretary and director of the National 
 (plaintiffs), whose principal office was at 
 Cherry Valley. He was also agent for the 
 New York Central (defendants) at the same 
 place, and he determined to reinsure the 
 National. He wrote defendants, "I had oc- 
 casion to use one of your policies yesterday, 
 but owing to their being mislaid while my 
 office was being repaired, I was unable to find 
 them. If you will send me some I think I 
 can give you quite a number of risks on 
 property where our own company have risks, 
 and on reinsurance." The defendants sent 
 him twenty blank policies signed by the pres- 
 ident and secretary, to be valid when he 
 should countersign them and write in the 
 subject matter of the contract. They were 
 received on the afternoon of the 15lh of June, 
 when he filled up one of them, reinsuring the 
 Natisnal the whole amount of the risk, ante- 
 dating the policy so as to give it ten months 
 to run. No premium had been remitted, nor 
 any notice of the making of the policy sent to 
 defendants at the time of the loss. HeM, 8. 
 could not act for both parties, unless the 
 defendants had notice that he was secretary 
 of the plaintiff. New Tork Central Ins. Co. v. 
 National Protection Ins. Co., 14 N. T., 85 ; s. c, 
 30 Barb., 468. 
 
 3. General agent. A person was ap- 
 pointed the agent of an insurance company, 
 empowered to solicit risks, take applications 
 for insurance, and to receive premiums and 
 premium notes therefor. Held, he was a gen- 
 eral agent for the transaction of such business 
 (citing Bun lap's Paley on Agency, 199, 200). 
 Devendorfv. Beardsley, 33 Barb., 656. 
 
 4. The authority of an agent must be de. 
 termined by nature of his business, and the 
 apparent scope of his employment therein. 
 Private instructions cannot be received in evi- 
 dence for the purpose of narrowing the agent's 
 apparent authority, unless there is something 
 in the nature of the business or the circum- 
 stances of the case to indicate that he is act- 
 ing under special instructions or limited pow- 
 ers. Markey e. Mutiuil Benefit Life Ins. Co., 
 103 Mass., 78. 
 
 5. Evidence of agency. An agent, a Brit- 
 ish subject, was authorized in time of war to 
 procure insurance, which he did with his usu- 
 al broker in his own name ; but he stated the 
 property is " neutral." Hdd, representing the 
 property as neutral was evidence to the broker 
 
1097 
 
 PRIVATE INSTRUCTIONS— PROFITS. 
 
 1098 
 
 Must be insured as such — When insurers are not liable for loss of. 
 
 that he acted as an agent and not on his own 
 account ifaanss o. Henderson^ 1 East, 335. 
 
 6. — The debtor subscribed a declaration 
 which was made the basis of a policy upon 
 his life in favor of his creditor. Hdd, he 
 was the agent of the insured. Forbes v. Ed- 
 inburg Life Ass. Oo., 10 S. & D., 451; i Scot. 
 Jur., 383. 
 
 PRIVATE INSTRUCTIONS. 
 
 (See Pbincipai. and Assnt.) 
 
 PROFITS. 
 
 I. MXJST BE INSDBED AS SUCH. 
 
 II. When rusuKERS are sot liable for 
 
 LOSS OF. 
 in. LIABLE FOR LOSS OF. 
 
 I. Must be insijeed as such. 
 
 Profits, however certain, must be insured 
 eo nomine. Niblo o. Jforth American fire Ins. 
 Co., 1 Sandf , 551 
 
 II. When disukers are not liable 
 
 FOR LOSS OF. 
 
 1. On profits on cargo (valued). Held, an 
 abandonment was necessary; that it must be 
 timely, so that the insurer may elect whether 
 he will pay the loss of profits or the price of 
 the goods and take them. If the insured take 
 the goods and sell them, he cannot recover of 
 his insurer for a loss of profits. Tom v. Smith, 
 3 Gaines, 245. 
 
 2. " On profits valued at $12,000, no other 
 proof of interest to be required but the policy; 
 and if the goods do not arrive, the insured 
 shall recover for a total loss; warranted free 
 from average without benefit of salvage." She 
 proceeded to the out port, failed to procure 
 cargo, and returned to the home port. Hdd, 
 its meaning was, if the ship do not arrive in 
 consequence of any peril mentioned, the in- 
 sured shall recover without proof of goods 
 on board; that her safe arrival precluded any 
 
 recovery on the policy, or a return of premium. 
 Jxihel 0. Chureli, 2 Johns. C, 333. 
 
 3. On supposed profits, Canton to Philadel- 
 phia. "Warranted free from average and 
 without salvage, valued |20,000." At a port 
 of necessity part of the cargo was thrown into 
 the sea in consequence of damage, and some 
 of it in a perishable state was sold for the ben- 
 efit of all concerned, and the proceeds invested 
 there in other goods, with which she arrived 
 at Philadelphia. There was a loss of more 
 than fifty per cent, of the whole cargo, and do 
 profits were realized. Held, the interruption 
 of the voyage was not a loss of it; that " free 
 from average " in a policy upon profits must 
 receive the same construction as in a policy 
 upon goods, therefore the insured could not 
 recover. Wain, v. Thompson, 9 S. & R, 115. 
 
 4. " On profits valued at the sum insured, 
 and in case of loss, no other proof of interest 
 to be r >quired, but the policy." She was dis- 
 patched from Liverpool to the coast of Africa 
 with a cargo, witJi which she was to purchase 
 slaves, take them to the West Indies, and sell 
 them in the usual manner. She arrived at St. 
 Vincents, and this policy was made to cover 
 from that place to her port of discharge. She 
 was lost at the Bahamas, together with a num- 
 ber of the slaves. The remainder of them 
 were carried to Havana and sold, but their 
 proceeds gave no profit on the whole adven- 
 ture. There was no proof that there would 
 have been a profit had all the slaves been got 
 to market Hdd, a judgment of nonsuit 
 should be entered. Hodgson c. Glover, 6 East, 
 316. 
 
 5. " On profits on rice." Insured had pur- 
 chased 6,000 bags, to arrive by ship from 
 Madras. 1,200 bags were on board when the 
 voyage was abandoned in consequence of sea 
 peril. Held, the policy attached only to the 
 1,200 bags on board, and that the recovery was 
 limited to the loss of profits on those. Mc- 
 Stciney o. Royal Exchange Ass. Go., 14 Q. B., 
 634; 19 L. J. Q. B., 222; overruling 18 L. J. 
 Q. B., 193. 
 
 6. A. bought palm oil of B., to arrive per 
 ship J. D., and insured : " On profits on palm 
 oil per ship J. D." She was lost, but the 
 cargo, after much delay, was brought home 
 by another vessel, and resold by B. Held, 
 insurers were not liable (citing Koyal Ex- 
 change Ass. Co. c. McSwiney, 4 Q. B., 634). 
 Chope c. lieynolds, 5 C. B. (N. S.), 642; s. 
 
 549 
 
1099 
 
 PROHIBITED WATERS. 
 
 1100 
 
 Miscellaneous. 
 
 c, 5 Jur. (N. S.), 823; 28 L. J. C. P., 194; 7 W. 
 R., 208. 
 
 III. When insukees aee liable foe 
 
 LOSS OF. 
 
 1. On profits, |5,000, on cargo valued at 
 $20,000. The cargo was destroyed by fire at 
 tne port of destination before it was landed, 
 but no evidence was given tending to sUow 
 that a sale of the cargo would have yielded a 
 profit to the insured. Held, it was not neces- 
 sary to prove that the insured would have 
 realized a profit from the sale of the goods. 
 Paiapsco Ins. Co. v. Coulter, 3 Pet., 233 ; Mum- 
 ford V. Ilallett, 1 Johns., 434 ; Mlott v. Bebor, 
 3 Johns. C, 39; Fosdick v. Norwich Ins. Co., 3 
 Day, 108. 
 
 2. "On the profits of goods laden," etc. 
 She was captured, carried into London and 
 libeled. Five-eighths of the goods were re- 
 stored to the insured, and an abandonment 
 made as to the policy on profits, and claim for 
 a total loss. Held, entitled to recover a partial 
 loss of three-eighths on the profits. Loomis v. 
 Shaw, 2 Johns. C, 36. 
 
 3. " On profits on goods." Held, valid, 
 but insured must have an interest in the 
 goods from which the profits are to come. 
 Abbott V. Sebor, 3 Johns. C, 39. 
 
 4. On profits. Held, insured could abandon, 
 for insurer on profits ought to have foreseen 
 that there might be a policy on the cargo, 
 which, in case of disaster might compel aban- 
 donment. Mumford v. Hallett,! Johns., 483. 
 
 5. A person interested to the extent of one- 
 half of certain goods, insured " profits " valued. 
 The goods were discharged at a port of dis- 
 
 . tress in a damaged condition. Held, if there 
 would have been a profit, he was entitled to 
 recover for a total loss, notwithstanding a 
 small salvage was saved. French v. Hope 
 Ins. Co., 16 Pick., 397. 
 
 6. Insurance upon the profits of a cargo is 
 valid. Ba/relay t. Cousins, 2 East, 544. 
 
 7. On imaginary profits. Slie was totally 
 lost off Scilly ; all the cargo, except one barrel, 
 was carried to port of destination in another 
 ship at expense of insurers. Held, the mean- 
 ing of the policy was that the ship and cargo 
 should arrive at the point of destination. 
 Henrickson v. Mwrgetson, note to Barclay v. 
 Cousins, 2 East, 544. 
 
 8. On profits from Riga to Hull. Loss by 
 650 
 
 capture. The profits would have been £1,000, 
 Held, insured was entitled to recover. Eyre «. 
 aioxer, 16 Bast, 318; 3 Camp., 276. 
 
 PBOHIBITED WATERS. 
 
 1. On freight for one year from June 30, 
 1862, warranted not to use the river Min 
 higher than the anchorage below Kimpai 
 Pass. She sailed from the river Lian Ho, and 
 entered the river Min above Eimpai Pass 
 (having received injury prior to that time), 
 was there surveyed, dismantled and sold as 
 unworthy of repairs. HM, the freight was 
 not lost until she was in prohibited waters, 
 where the policy, by its terms, ceased to be in 
 force. Bewms v. Columbian Ins. Co., 48 Barb., 
 445. 
 
 2. On schooner, one year, warranted not to 
 use ports or places in Texas, except Galves- 
 ton, nor foreign ports or places in the Gulf of 
 Mexico. For an additional premium permis- 
 sion was given to make one voyage from New 
 Orleans to Vera Cruz. She sailed thence to 
 Coatzacoalcos, in the Gulf of Mexico, thence 
 to Boston, and thence to Appalachicola, where 
 she belonged, and was there lost in a gale. 
 Held, going from Vera Cmz to Coatzacoalcos 
 released the insurers, for from that time the 
 policy ceased. Day v. Orient Mut. Ins. Co., 1 
 Daly, 13. 
 
 3. Stipulated: "Not to use foreign ports 
 and places in the Gulf of Mexico. She 
 cleared for Frontera, and sailed for it on the 
 following day. She went ashore on the coast 
 of Cuba, 700 miles from the prohibited port. 
 Held, clearing for it and sailing for it was not 
 using it; insurers were therefore liable for the 
 loss. Wheeler v. New York Mut. Ins. Co., 3 J. 
 & Sp. (N. T.), 247. 
 
 4. On ship, for one year from February 26, 
 
 1867. " Prohibited from the river and Gulf of 
 St. Lawrence, Northumberland Straits, Cape 
 Breton and Black Sea, between October 1st 
 and May 1st." In March, 1867, she was in a 
 port of Cape Breton, but returned to New 
 York in safety. December 34th she sailed 
 from St. Johns, Newfoundland, for Sydney, 
 C. B., was blown out into the middle of the 
 Atlantic Ocean, and there lost, January 10, 
 
 1868. Held, the warranty was violated io 
 
1101 
 
 PROOFS OF LOSS. 
 
 1102 
 
 Miscellaneous. 
 
 March, ISQT, and from that time the policy 
 was void. Odiome v. Neui England MutucU 
 Marine Ins. Go., 101 Mass., 551. 
 
 5. On schooner, for a term; but prohibited 
 from the river and Gulf of St. Lawrence, be- 
 tween September 1st and May 1st. She sailed 
 in December, loaded with coal, from St. 
 Johns, Newfoundland, to Pictou, Nova Scotia, 
 and was lost on the homeward voyage. Held, 
 she was in the Gulf of St. Lawrence within 
 the prohibited time, which released insurer. 
 Cobb V. Lime Rock Fire and Marine Ins. Co., 
 58 Me., 326. 
 
 6. Term policy on steamboat, "With per- 
 mission to navigate the Ohio and Mississippi 
 rivers, below Cairo. Warranted to be run 
 and navigated upon the aforesaid privileged 
 waters, as is usual for boats of her class, in 
 the usual prosecution of business." Stipu- 
 lated: "The policy shall be suspended while 
 she shall be making repairs at any place with- 
 out those waters." She made a voyage to 
 White River and returned to the Mississippi, 
 and subsequently, within the term insured, 
 was consumed by an accidental Are. Held, the 
 permission to navigate the Mississippi and 
 Ohio below Cairo prohibited her from going 
 into waters other than those permitted ; hence 
 insurers were discharged. The court refuses 
 to follow Ureenleaf e. St Louis Ins. Co., 37 
 Mo., 25, and says: "This case is not like 
 Palmer b. Warren Ins. Co., 1 Story C. C, 360; 
 Yeaton v. Fry, 5 Cranch, 335 " (citing Odiorne 
 p. New England Mutual Marine Ins. Co., 101 
 Mass., 551). Wilkins v. Tobacco Ins. Co., 2 
 Cin. Sup. Ct, 304. 
 
 7. Time policy. "Commencing at noon, 
 December 15, 1866, and ending at noon, De- 
 cember 15, 1867, beginning the adventure at 
 and from Montreal, to trade between the 
 Island of Newfoundland, Nova Scotia, West 
 India Islands, Cuba, safe ports in the United 
 States, Quebec and Montreal, and to and from 
 ports in the Lower J'rovinces. Not allowed 
 to enter the Gulf of St. Lawrence before April 
 25th, nor to be in said Gulf after November 
 15th, nor to proceed to Newfoundland after 
 December 1st, or before March 15th, without 
 payment of additional premium and leave oI> 
 tained; war risk and sealing voyages excepted. 
 Valued at $7,000. Insured for $5,000." She 
 left Montreal, November 16, 1867, for St. 
 Johns, Newfoundland, and was lost between 
 that date and December 1st, off the Island of 
 
 Anticosti, in the Gulf of St. Lawrence. Held, 
 whether proceeding from Montreal or from 
 any other ports, she was not to be in the Gulf 
 of St. Lawrence after November 15th, nor to 
 proceed to New foundland from any port after 
 December 1st. Provincial Ins. Go. of Canada 
 V. Leduc, 23 W. R., 929; 31 L. T. (N. S.), 42; 
 43 L. J. P. C, 49. 
 
 8. One of the rules of the association pro- 
 vided that ships crossing t'.ie North Sea to any 
 port north of the Texel, the Atlantic, or Bay 
 of Biscay, or to any port south of Brest, if the 
 cargo consists of iron or oUier metal, ore, etc., 
 shall not carry more than thirty-five per cent 
 above the registered tonnage, N. M., or fifty 
 per cent. N. N. M. ; that ships employed in tlie 
 coasting trade, and ports between the Texel 
 aud Brest, with cargoes consisting of any of 
 the above named articles, " shall not carry more 
 than they make out, with an average with 
 coals," and in all cases of damage or loss while 
 so laden, shall be subject to a deduction as 
 follows : A. 1, 10 per cent. ; A. 2, 15 per cent. ; 
 A. 3, owner shall forfeit all claim, but no ves- 
 sel shall be considered loaded with the except- 
 ed articles where the cargo does not consist 
 of more than ten per cent, of the burden of the 
 vessel. She was classed A. 3, registered 261 
 tons. She had 100 tons of iron, and 355 tons 
 of coal, which was in excess of the 50 per cent, 
 stated. She was lost off Blakeney Bar on the 
 Norfolk coast, while on a voyage from Sun- 
 derland to Bordeaux. Held, she could not be 
 regarded as employed in the coasting trade, 
 though lost on the coast of Norfolk, for the 
 ship's destination must be looked to, for the 
 purpose of determining the trade in ■s^hich she 
 was engaged; that the plaintiff was entitled 
 to be paid his loss less a deduction of fifteen 
 per cent. Harvey v. BeeJewith, 13 W. R., 819; 
 affirmed, id., 896; 10 L. T. (N. S.), 633. 
 
 PROOFS OF LOSS. 
 
 (See CoKDinoH Pbbcedent; Noticb of Loss.) 
 
 I. Op the preliminary rROOFS. 
 
 (a) W?u) may make. 
 
 (b) Whai precludes insurers from in- 
 
 sisting on. 
 
 (c) Wfiat does rwt predude insurers 
 
 from insisting on. 
 
 651 
 
1103 
 
 PROOFS OF LOSS. 
 
 1104 
 
 Of the preliminary proofe. 
 
 I. Op the preliminary proof — (con.). 
 
 (d) WJien insurer is precluded from ob- 
 
 jecting to defects or insufficiencies. 
 
 (e) Not precluded from objeaing to de- 
 
 fects or insufficiencies. 
 
 (f) WJtat are sufflcient proofs of loss. 
 
 (g) When preliminary proofs are in 
 
 time. 
 (h) When preiiminarff proofs are not 
 
 not in time. 
 (i) Qf authority to waive preliminary 
 
 proofs. 
 
 II. Of the PARTICUIiAR ACCOUNT. 
 
 (a) What is sufficient. 
 
 (b) not sufficient. 
 
 III. Of thb magistrate's or surgeon's 
 
 CERTIFICATE. 
 
 (a) When sufficient. 
 
 (b) mii sufficient. 
 
 IV. Of estoppel. 
 
 (a) When insured is estopped by his 
 
 proofs of loss. 
 
 (b) Wh^n insured is not estopped by his 
 
 proofs of loss. 
 V. Of Evidence. 
 
 (a) When the preliminary proofs are. 
 
 (b) are not. 
 VI. Of copies of other policies. 
 
 VII. Of the invoices, books, papers, and 
 
 VOUCHERS OF INSURED. ' 
 
 VIII. Appraisement of d.\magb. 
 IX. Questions for the jury. 
 X. Generally. 
 
 I. Of the peeliminaet peoofs. 
 
 • (a) WTio may make. 
 
 1. Policy to mortgagee. The mortgagor 
 paid tlie premium; notice of loss and prelim- 
 inary proofs were made by the mortgagor, ac- 
 companied by an affidavit of the mortgagee, 
 verifying the mortgagor's statements. Held, 
 it was too late on the trial for insurers to say 
 the notice and proof were not in the name nf 
 the insured. Kemochan v. New Torh Bowery 
 Ins. Co., 17 N. T., 438; 8. c, 5 Duer. 1. 
 
 2. Insurance to mortgagor, "loss, if any, 
 payable to mortgagee." The mortgagor re- 
 fused to sign and verify the preliminary 
 proofs, and the mortgagee made them and de- 
 livered them to defendant's agent, May 26, 
 1871. June 6th following defendant seived 
 notice on mortgagee that the proofs were not 
 
 553 
 
 made in accordance with the conditions an- 
 nexed to the policy; that they would not be 
 recognized as proofs in the case. Bold, mort- 
 gagee was not bound to furnish additional 
 proofs. Pratt v. New York Central Ins. Co., 
 55 N. Y., 505 ; s. c, 64 Barb., 589. 
 
 3. Insured died during the term insured. 
 Held, his personal representative succeeding 
 to his legal rights conld give the notice of 
 loss, and make the necessary preliminary 
 proofs, farmers Hut. Ins. Go. e. Oraybill, 74 
 Penn. St., 17. 
 
 4. While insured was absent from the state 
 the properly was consumed by fire, and his 
 creditor brought suit in equity alleging the 
 nonresidence of insured and insurer, exhib- 
 ited her claims, and obtained an attachment. 
 The policy stipulated : " All persons sustain- 
 ing loss by fire are forthwith to give notice 
 thereof to the company, and as soon after as 
 possible to give a particular account of it, 
 signed and verified by insured with a certifi- 
 cate of the loss under the hand of a magis- 
 trate most contiguous to the fire, stating the 
 amount of it, etc." Held, the attaching 
 creditor had a right to proceed in rem to 
 compel insurer to answer; and if insured 
 failed to furnish the preliminary evidence 
 necessary to perfect his right, the attach- 
 ing creditor might do it by taking the tes- 
 timony of insured and others in the usual 
 manner; that the condition providing for 
 the certificate of a magistrate might be 
 satisfied by taking the deposition of the 
 magistrate and proving by him all the facts 
 requisite to fix insurer's liability; and this 
 having been done, the attaching creditor was 
 entitled to judgment. Northwestern Ins. Co. 
 v.. Atkins, 3 Bush, 328. 
 
 5. The policy required notice of the loss 
 forthwith, and a particular account signed and 
 sworn by insured within three days, to be de- 
 livered at the office of insurer. Notice of 
 the fire was given immediately, and an agent 
 of insurer produced the usual blanks for mak- 
 ing proofs and the particular account of the 
 loss. These were filled up under the agent's 
 directions and sworn to by 8., a person act- 
 ing as agent of insured. The property was 
 in Carroll uonnty, under the exclusive control 
 and management of S. The policy was ob- 
 tained by 8., the application and the pre- 
 mium note being executed by him. In- 
 sured resided at St. Louis. Held, if S. 
 
1105 
 
 PROOFS OF LOSS. 
 
 1106 
 
 Of the pieliniinaij proofs. 
 
 could not make the proof it could not be 
 made at all ; the position assumed by insurers 
 placed them in the attitude of issuing policies 
 and receiving premiums, knowing from the 
 nature of the case that no legal proof could 
 be made of the losses, if any should occur, 
 ■which position the court would not recognize. 
 Sitiu ». State Ins. Co., 47 Mo., 54. 
 
 6. Policy to A. & B., loss, if any, payable 
 to C. A. sold all his interest to B., of which 
 insurers had notice. B. made the preliminary 
 proofs of loss in his own name. Held, they 
 were well made in his name. Keeler v. Niag- 
 ara Fire In>. Co., 16 Wis., 523. 
 
 7. If the insured is a nonresident and has 
 an agent in charge of the premises insured, 
 the proofs of loss may be made by him, and 
 they will be sufBcient unless objections to 
 them are made for that caui>e. Affres o. Sart- 
 ford Fire Ins. Co., 17 Iowa, 176. 
 
 8. Insured had been absent for a long time 
 prior to the destruction of the property. His 
 wife, who acted as his agent, gave notice of 
 tlie loss and made preliminary proof. Sdd, 
 sufficient. O'Connor o. Hartford Fire Ins. Co., 
 31 Wis., 160. 
 
 (b) What precludes insurers from in- 
 sisting on. 
 
 9. The insurer resisted payment of the loss 
 on the ground that no obligation to insure was 
 entered into; that the contract was incomplete 
 at the time of the loss. Held, the insured was 
 not bonnd to produce preliminary proofs of 
 the loss. Taj/loe v. Merehantt Ins. Co., 9 
 How., 890. 
 
 10. It was stipulated that the Insured 
 should make certain preliminary proofs of the 
 loss before any right of action should accrue 
 under the policy. Insured gave timely notice 
 of the loss, and insurers examined and In- 
 quired into all the circumstances connected 
 with it, and then denied all liability, on the 
 ground that the loss was the result of a marine 
 peril for which the insurers were not liable 
 upon their contract. Held, the denial of all 
 liability was in law a waiver of any fur- 
 ther proof of the loss; the denial of lia- 
 bility admitted the loss, and was a notice to 
 the insured that the insurers would not be 
 bound in any event, though formal proofs 
 were furnished; and under such an admis- 
 sion, preliminary proofs were of no import- 
 
 ance to either party, for the law does not 
 require performance of that which is mere 
 idle formality (citing Schenck v. Mercer Coun- 
 ty Mutual Fire Ins. Co., 24 N". J., 447; AUe. 
 gre ». Maryland Ins. Co., 6 H. <fc J., 408; Mc- 
 Masters v. Westchester County Mut. Ins. Co., 
 25 Wend., 379; Francis v. Ocean Ins. Co., 
 Cow., 404 ; Tayloe v. Merchants Fire Ins. Co., 9 
 How., 390; O'Neil v. Buffalo Ins. Co., 3 N. T., 
 123; Maryland Ins. Co. v. Bathurst, 5 G. & J., 
 159; Graves v. Washington Marine Ins. Co., 
 12 Allen, 891). Norwich and JV. T. Trans. 
 Co. V. West Mass. Ins. Co., 34 Conn., 561 ; s. c, 
 6 Blatch., 341 ; s. c. affirmed, 12 Wall., 194. 
 
 11. If the insured was so insane as to have 
 been incapable of making an intelligent state- 
 ment, that would of itself excuse the condition 
 of the policy, which requires an affidavit of 
 the loss; If the affidavit was made while 
 the insured was insane, the fact of his insanity 
 does not vitiate it. Instance Companies v. 
 BoyMn, 13 Wall, 433. 
 
 1 2. The defendant pleaded that the proofs 
 were not furnished as required by the policy. 
 Held, the insured might prove that proofs, in 
 some respects defective, were accepted by the 
 company, or the acceptance might be inferred 
 from the company's failure to object to them, 
 or by placing its refusal to pay upon other 
 grounds. Spratley t. Hartford Ins. Co., 1 Dil. 
 Clr. C, 893. 
 
 13. If the underwriters make no objection 
 to the preliminary proofs, but put their refusal 
 to pay upon the ground that tJiey are not 
 liable to the person who prefers the claim. It 
 Is a -waiver of preliminary proof. Sogers v. 
 Traders Ins. Co., 6 Paige Ch., 583. 
 
 14. Payment to the insured of a part of the 
 sum insured is a waiver of the usual prelim- 
 inary proofs ; and if there is a defect in them, 
 and it is supplied during the trial by the in- 
 surers, that is a waiver of any exception based 
 on the defect Westlahe v. St. Lawrence County 
 Mut. Ins. Co., 14 Barb., 206. 
 
 15. The defendant resisted the claim on the 
 groimd that the policy had not been renewed, 
 and no agreement for its renewal had been 
 entered into. Held, if the defendants intended 
 to resist payment of the loss on account of 
 plaintiff's failure to furnish preliminary proofs, 
 they should have so stated, because plaintiff 
 then had time and ability to remove the objec- 
 tion by making and serving the proofs. Post 
 V. uEtna Ins' Co., 43 Barb., 851. 
 
 553 
 
1107 
 
 PROOFS OF LOSS. 
 
 1108 
 
 Of the preUminary proofs. 
 
 16. Insured applied to insurer's agent for 
 blanlis to make preliminary proofs, wlio re- 
 plied tliat lie would not give any because the 
 defendants did not recognize the claim. Held, 
 it was unnecessaiy to make any proofs of loss. 
 Dean v. ^tna Life Ins. Co., 3 Hun. (N. Y.), 
 358; s. c, 4 N. Y. S. U., 497. 
 
 17. No evidence was offered of any pre- 
 liminary proof made before the action was 
 brought, except an abandonment and a de- 
 mand for payment; but it appeared that the in- 
 surers had always refused payment on the 
 ground of the unseaworthiness of the vessel, 
 and not on account of the want of further pre- 
 liminary proof. Held, the insurers had thereby 
 waived their right to any further preliminary 
 proof. Martin v. Fishing Ins. Go., 30 Pick., 389. 
 
 18. The by-laws required, in case of loss, 
 certain preliminary proofs to be made. Held, 
 the company could expressly or impliedly 
 waive the condition ; that the implied waiver 
 could be found from the fact that payment 
 was refused on grounds other than defects in 
 tlie preliminary proofs (citing Underbill v. 
 Agawam Ins. Co., 6 Gush., 440). This waiver 
 is unlike a waiver of matters relating to the 
 substance of the contract. Stipulations as to 
 the jjreliminary proofs are not of the sub- 
 stance or essence of the contract, but relate 
 only to the mode or form in which the liabil- 
 ity of the company shall be ascertained and 
 proved. Priest v. Citizens Mutual Fire Ins. 
 Co., 3 Allen, 603. 
 
 19. The president of the company was 
 asked to pay the loss, and refused to do so on 
 grounds other than the want of preliminary 
 proofs. Held, sufficient evidence for the jury 
 to find that preliminary proofs had been fur- 
 nished satisfactory to the company. Stetson 
 v. Insurance Co., 4 Phila., 8. 
 
 20. Some notice of the plaintiff's loss had 
 been received,' but it did not appear that the 
 provisions of the statute in that respect had 
 been complied with. The refusal to pay 
 was placed on the ground of overvaluation. 
 Held, abundant proof that the company had 
 waived any noncompliance with the require- 
 ments of the law in regard to notice and pre- 
 liminary proofs. Lewis v. Monmouth Mutual 
 Fire Ins. Co., 53 Me., 493. 
 
 21. D. notified insurer's agent of the loss, 
 and told him that the property belonged to 
 D. instead of the persons insured.- The agent 
 stated that defendant was not upon the risk, 
 
 554 
 
 if the property insured and burned was the 
 property of D., and that the loss would not be 
 paid. The agent again stated, at a subsequent 
 date, to D. and to insured, that the company 
 would not pay the claim. No preliminary 
 proofs of loss were oftered. Held, a waiver of 
 all preliminary proof. Franklin Fire Ins. Co. 
 V. Coates, 14 Md., 385. 
 
 22. Insurers, on being notified of the loss, 
 demanded the master's protest. Having re- 
 ceived it, they notified insured that they did 
 not consider tliemselves answerable for the 
 claim. Held, a waiver of all oljjections to pre- 
 liminary proofs of loss. Maryland Ins. Co. u. 
 Bathurst, 5 G. & J., 159. 
 
 23. Stipulated: " Insured shall give notice 
 and make proof of loss within thirty days after 
 its occurrence." After the time limited in the 
 policy, the attorney of insured wrote insurers 
 informing them of the loss, and that the policy 
 had been burned. He requested a copy of the 
 policj', and instructions as to the proper mode 
 of verifying the loss. Insurer's treasurer ac- 
 knowledged the receipt of the letter, and 
 wrote : " The matter will be laid before the 
 executive committtee at their next meeting." 
 And again he wrote: "The committee has 
 rejected the claim on the ground of nonpay- 
 ment of assessments." Held, a clear waiver 
 of any form of notice or particular kind of 
 proof. Noyes v. Washington Ins. Co., 30 Vt., 
 659. 
 
 24. Insurer denied all liability and refused 
 to pay any thing. Held, a waiver of notice 
 and proof of death required by the terms of 
 the policy. McComos n. Covenant Mutual Life 
 Ins. Co., 56 Mo., 573. 
 
 25. The policy exempted defendant from 
 all claim " if the insured shall die in conse- 
 quence of delirium tremens." The company 
 set up as a defense to the action, that his death 
 was caused by delirium tremens. Held, when 
 insurers interpose a defense which exempts 
 them from any payment at all, that is a waiver 
 of the formal proofs required under the con- 
 tract. Rippstein v. St. Louis Mutual Life Ins. 
 Co., 57 Mo., 86. 
 
 26. Insurer and insured completed a con- 
 tract to insure $1,000 upon a building for one 
 year, the policy to be delivered when called 
 for, and the premium to be paid within five 
 days. The building was consumed within 
 five days. Insured tendered the premium and 
 demanded the policy, which was refused. 
 
1109 
 
 PROOFS OF LOSS. 
 
 1110 
 
 Of the prelimmaiy proofs. 
 
 Held, it was not necessary to show a compli- 
 ance with the terms of the policy, because 
 insurer refused to issue one (citing Taloe «. 
 Merchants Ins. Co., 9 How., 390; Post u. ^tna 
 Ins. Co., 43 Barb., S51). New England Fire 
 and Marine Ins. Co. •». Robinson, 25 Ind., 586. 
 
 27. Appellant inquired for the oflBce of the 
 company in Chicago, but failed to find its 
 place of business. He notified the local 
 agents of his loss, and was informed by them 
 that the company was wholly bankrupt, and 
 was led to believe it would be useless for him 
 to make any formal proofs of loss. Held (in 
 an action against the receiver), the other cred- 
 itors could not profit by a mistake induced by 
 the company's agent. Pennell v. Chdndler, 
 S. C. 111., 7 Chi. Leg. News, 227. 
 
 28. Insurer's agent told insured that a cer- 
 tain alleged sale of the property had released 
 insurer, and that proofs of loss would be su- 
 perfluous and unavailing. Relying upon this 
 insured made no proofs of the loss. Udd, in- 
 surer could not insist upon proofs. ManJtat- 
 tan Ins. Co. v. Stein, 5 Bush, 653. 
 
 29. The day after the fire occurred the loss 
 was made known to the secretary and agent 
 of the company. The agent promptly ig- 
 nored all responsibility on the ground that 
 the policy had been canceled for nonpayment 
 of premium. Seld, insured were not bound 
 to make preliminary proofs of loss. La Sod- 
 ete, etc., v. Morris, 24 La. An., 347. 
 
 30. The general agent called at plaintiif s 
 residence to examine into the loss, and made 
 an examination. He told plaintiflf that he 
 could not recommend the company to pay. the 
 claim, because he was satisfied the sales of 
 goods were greater than the purchases ; that 
 insured had" no claim under the policy, and 
 denied all liability. Held, the making and 
 presenting formal proofs of loss would have 
 been superfluous ; and a failure to make and 
 present them was- no defense to the action 
 (citing Norwich & New York Trans. Co. ®. 
 Western Mass. Ins. Co., 34 Conn., 561). Me- 
 Bride v. Bepublie Fire Ins. Co., 30 Wis., 563. 
 
 31. Insured did not make any offer to 
 prove a compliance with the condition, which 
 required certain preliminary proofs, but put 
 in evidence a letter written by insurer's super, 
 iutendent, which stated that the claim was re- 
 jected on the ground that a subsequent policy 
 had been made without defendant's permis- 
 sion, and that the risk was fully covered by 
 
 prior policies. Held, no obligation rested up- 
 on insured to make any preliminary proofs of 
 loss. Parker a. Amazon Ins. Co., 34 Wis., 363. 
 
 (c) What does not jprecl/ude insurers 
 from insisting on. 
 
 32. The insurer did not state that the de- 
 jection to paying the loss was founded upon 
 the failure of the insured to deliver prelim- 
 inary proofs of it. Held, not a waiver of the 
 preliminary proofs. Columbian Ins. Co. v. 
 Lawrence, 2 Pet., 25. 
 
 33. Policy upon the lives of plaintiflf and 
 her husband, payable to the survivor, in sixty 
 days after due notice and proof of death. He 
 died May 15, 1872. She addressed a letter to 
 defendants informing them of the death. De- 
 fendants retained it, and never demanded any 
 further proof. Held, not any evidence of com- 
 pliance with the condition. O'Reilly v. Guard- 
 ian Life Ins. Co., 60 N. Y., 169 ; reversing s. c, 
 1 Hun. (N. Y.), 460; s. c, 3 N. Y. S. C, 487. 
 
 34. Stipulated: "Persons sustaining loss 
 shall forthwith give notice thereof, and shall 
 within forty days deliver in a particular ac- 
 count of such loss, signed and verified. All 
 communications and notices to the company 
 must be postpaid, and directed to the secretary 
 at Canajoharie." House burned January 9, 
 1858. Damage, $1,300. February 15th plaint- 
 iff made sworn statement, and particular ac- 
 count of the loss, left it with his counsel, who 
 sent it by mail postpaid, directed to the secre- 
 tary. The company never received it. Held, 
 the words "deliver in" meant a delivery to 
 the company. A dei^osit of the proof of loss 
 in the post ofiSce was not sutficient. Hodg- 
 Tcins v. Montgomery County Mut. Ins. Co., 34 
 Barb., 313. 
 
 35. Policy required notice of loss and pre- 
 liminary proof signed and sworn to. A verbal 
 notice of the loss having been given, the 
 company sent an agent who investigated 
 the circumstances of the fire, and examined 
 persons concerning the cost of constructing 
 the premises; but the agent testified that he 
 told the insured to send his proofs of loss to 
 the company. Held, no evidence that the in- 
 surers waived preliminary proof. Busch v. 
 Insurance Co., 6 Phila., 252. 
 
 36. The preliminary proofs of loss were de- 
 livered December 28th, the company demand- 
 ed a view of tlie books and papers of insured 
 
 555 
 
nil 
 
 PROOFS OF LOSS. 
 
 1112 
 
 Of the preliminary proofs. 
 
 January 13th. February 11th, insurers were 
 notified that the books and papers were ready 
 for inspection at the oflSce of the attorneys of 
 the insured. March 3d, insurers rejected the 
 claim on the ground of material concealment 
 as to the character of the risk, stating at the 
 same time that the preliminary proofs of loss 
 were wholly unsatisfactory, reserving all right 
 of objection, and protesting against any inten- 
 tion to waive any rights under the policy. 
 nOd, the court did not err in refusing to in- 
 struct the jury that the defendants bad waived 
 preliminary proofs of loss. Edxirds •». Balti- 
 more Ins. Go., 3 Gill, 176. 
 
 37. A witness called at insurer's office, in- 
 quired why the loss had not been paid, and 
 stated if there was any deficiency in the proofs 
 he would try and supply it. The person who 
 represented himself as president, said " They 
 had sent an agent to Winchester, and from 
 his information they did not believe there 
 could have been so much stock in a litUe 
 room of ten by twelve feet." The witness de- 
 nied the correctness of the information, and 
 inquired what further proof was wanted. The 
 president replied, the policy will show, or it 
 is laid down in the policy. Upon the trial, 
 the preliminary proofs were called for by no- 
 tice served upon insurer's attorney, but they 
 were not produced, and it seems there was no 
 evidence given as to their contents. Hdd, no 
 evidence of preliminary proof of the loss, nor 
 any evidence of waiver. Spring Garden Mitt. 
 Ins. Co. V. Evans, 9 Md., 1. 
 
 38. A. traveling agent of insurer was told 
 of the loss. He replied, " The matter will be 
 all right with the company." Held, not evi- 
 dence that the company waived its right to 
 the proofs required by the policy. Boyle v. 
 North Carolina Ins. Co., 7 Jones' Law, 373. 
 
 39. Plaintiff was required to furnish proofs 
 of the loss sustained by sinking of the boat; 
 but defendant's agent had previously stated to 
 plaintiff that he was not prepared to pay the 
 loss. Held, no recovery could be had. Me- 
 Cann v. .Mtna Ins. Co., 3 Neb., 198. 
 
 40. The policy required sworn statement 
 of loss within thirty days. The value of the 
 premises was the only question disputed be- 
 tween the parties, and insurer and insured 
 agreed to submit that question to an arbitrator ; 
 but it never was so submitted; and after thirty 
 days Iiad elapsed, plaintiff made a statement 
 of the loss and delivered it Hdd, this was 
 
 55(i 
 
 not evidence of waiver, hence insured could 
 not recover. Niagara District Ins. Co. v. 
 Lewis, Vi U. C. C. P., 123. 
 
 41. Defendant's secretaiy wrote plaintiff 
 that the claim was rejected because plaintiff 
 had failed to make certain disclosures de- 
 manded of him by the application. Held, not 
 admissible as evidence of waiver of certain 
 other conditions stated in the policy, because 
 it had not been specially pleaded; nor was 
 the letter to be considered as evidence tliat the 
 insurer was satisfied with the particular ac- 
 count of the loss. Scott s. Niagara IHst. Mut. 
 Ins. Co., 25 U. C. Q. B., 119. 
 
 (d) When insurer is precl/uded from 
 objeGtvng to defects or iTisuffideneies. 
 
 42. An agent of the insurer, on preliminary 
 Ijroofs of loss being submitted, ascertained 
 the amount due, and brought it into court. 
 Hdd, the sufficiency of the preliminary proof 
 was admitted. Johnson v. Columbian Ins. Cs., 
 7 Johns., 315. 
 
 43. Insured produced to insurer the protest 
 of the master. The register proving the in- 
 sured's interest in the vessel was not produced. 
 Insurer made no objection to the preliminary 
 proof, but placed his refusal to pay specifically 
 and solely on the ground of deviation. Hdd, 
 he there^ waived further preliminary proof. 
 Vos «.- Robinson, 9 Johns., 192. 
 
 44. Insurers declared " they would not set- 
 tle in any way," putting their objections on 
 the merits of the case, and not on any defect 
 in the preliminary proofs. Held, that what- 
 ever imperlcctions there may have been in the 
 preliminary proofs were waived. Francis v. 
 Ocean Ins. Co., 6 Cow., 404 ; s. c, 3 Wend., 6-1. 
 
 45. The insured refused to pay on grounds 
 other than insufficiency of proofs of loss. Held, 
 the proof of loss must be considered sufficient. 
 Catlett V. Pacific Ins. Co., 1 Wend., 561 ; affirmed, 
 4 id., 75; Ocean Ins. Go. v. Francis, 2 id., 64; 
 Bumstead v. Dividend Mut. Ins. Co., 12 N.T., 81. 
 
 46. A failure to point out a formal defect 
 in preliminary proofs, and putting the objec- 
 tion to pay on other grounds, is a waiver of 
 the defect. McMasters v. Westchester County 
 Mut. Ins. Co., 25 Wend., 379. 
 
 47. Affidavit of the loss made by the in- 
 sured was considered sufficient preliminary 
 proof. Sexton «. Montgomery County MuU 
 l7U. Co.. 9 Barb.. 191. 
 
1113 
 
 PROOFS OF LOSS. 
 
 1114 
 
 Of the preliminary proofs. 
 
 48. Defects in preliminary proofs not 
 pointed out are waived. Boynton v. Clinton 
 and Essex Uut. Ins. Co., 16 Barb., 254. 
 
 49. The insurer received and acted upon 
 notice and preliminary proofs furnished, with- 
 out objecting to their form or time of service, 
 declined to pay the loss, but did not place 
 their refusal ujion any defect in the notice or 
 proofs. Ileld, all former defects in them were 
 waived. Hynds v. Schenectady County Mut. 
 Ins. Co., 11 N. T., 554; 16 Barb., 119. 
 
 50. For the purpose of showing notice and 
 proof of loss, insured read in evidence a letter 
 of insured to insurers, in which he informed 
 them that it had become necessary for him to 
 give notice of loss and damage to the prem- 
 ises insured, mentioning the time when the 
 Are occurred, the number of the policy, and 
 requesting indemnification according to the 
 effect of the policy. The policy did not re- 
 quire any particular account of the loss, but 
 provided that, in case of loss the company 
 should have the right to replace the property 
 with others of the same kind and equal good- 
 ness. Held, the letter was sufBcient notice 
 and preliminary proof in the absence of any 
 demand for distinct specification. Heath v. 
 FraiMin Ins. Co., 1 Cush., 2.57. 
 
 51. The insurer received preliminary proofs 
 of loss, but they did not contain all the de- 
 tails required by the policy. No objection 
 was made to them on that ground, nor any 
 further information required. Payment was 
 refused on other grounds. Held, a more full 
 and particular account of the loss was waived. 
 UnderhiU n. Agawam Mutual Fire Ins. Co., 6 
 Cush., 440. 
 
 52. Insured sent defendant certain notices 
 and proofs pursuant to the by-laws. Held, if 
 the notices were defective, good faith required 
 insurers to point out the defects; and if in- 
 surers proceeded to negotiate with insured 
 without adverting to the defects, and then re- 
 fused to pay the loss on other and distinct 
 grounds, insurers were estopped to rely upon or 
 set up the defects as a defense to the action, 
 for the law assumes that the notices were cor- 
 rect and will not permit the insurer to prove 
 the contrary. Blake v. Exchange Mut. Ins. 
 Co., 13 Gray, 265. 
 
 53. Insurers refused to pay the claim, but 
 subsequently negotiated about its payment 
 and never made any objections to the prelim- 
 inary proofs of it Held, a waiver of all ob- 
 
 jections to them. Graves v. Washington Ma- 
 rine Ins. Co., 12 Allen, 391. 
 
 54. Insurers rested their defense exclusively 
 on grounds other than the want of formal 
 notice and proof of the claim. Held, they had 
 waived all objection to tlie suflBciency of 
 notice and proof of loss (citing Martin «. Pish- 
 ing Ins. Co., 20 Pick., 389; Vose v. Robinson, 
 9 Johns., 193; Tayloe v. Merchants Ins. Co., 9 
 How., 390. Thwing «. Great Western Ins. Co., 
 Ill Mass., 93. 
 
 55. The charter required all members to 
 give notice of the loss to the directors or some 
 one of them, or to the secretary, within thirty 
 days after it should occur. The by-laws re- 
 quired insured to deliver a particular account 
 on oath, of the property damaged and the 
 value thereof, etc., within thirty days after 
 the loss. Within thirty days after the loss a 
 notice thereof, sworn to by insured, was for- 
 warded by mail to the company and received. 
 Held, by receiving notice of the loss and fail- 
 ing to point out its defects, insured waived 
 the right to take exceptions to it. Bartlett v. 
 Union Mutual Fire Ins. Co., 46 Me., 500. 
 
 56. If the insurer intended to rely upon the 
 insufficiency of the preliminary proofs of loss, 
 they should have requested further proofs, and 
 when they received those tliat were defective 
 and failed to demand others, they waived their 
 right to insist upon the defect. Wdlk&r v. 
 Metropolitan Ins. Co., 56 Me., 371. 
 
 57. Proofs of loss were seasonably made, 
 but no objection was taken to their sufficiency 
 until the cause came on for trial. Held, all 
 defects were waived. Patterson v. Triumph 
 Ins. Co., 64 Me., 500. 
 
 58. The defense relied upon a defect in the 
 preliminary proofs of loss. Held, insured had 
 the right to prove that insurer's agent stated 
 to him that the quantity, quality and value of 
 the property were what the company objected 
 to ; and if proved, it was a waiver of all objec- 
 tions grounded on defective preliminary 
 proofs. BathboTie v. City Fire Ins. Co., 31 
 Conn., 193. 
 
 59. Policy required notice of the injury and 
 death to be given within thirty days from the 
 happening of either. He received a blow on 
 the bowels from a hay fork July 9, 1867, and 
 died the 14th. August 12th insurers were 
 notified of the death. The widow's affidavit 
 stated that the death was caused by injuries 
 received in the bowels while working in a 
 
 S57 
 
1115 
 
 PROOFS OF LOSS. 
 
 IIIC 
 
 Of the preliminary proofs. 
 
 hay field, from which peritonitis resulted. 
 Subnequently the affidavit of the attending 
 physcian was furnished, which stated that he 
 was killed by accident occasioned by exer- 
 tions made while assisting in haulin,g in hay, 
 which injui-ed the abdominal muscles and 
 produced peritoneal inflammation, and all its 
 concomitant symptoms, which resulted in his 
 death. Held, taking both affidavits together, 
 they were prima facie proofs that he came to 
 his death by an accident. NortJi American 
 Accident Int. Co. v. Burroughs, 69 Penn. St., 43. 
 
 60. Preliminary proofs of loss were sent by 
 mail from Pottsville, Penn., to insurers, New 
 i..rk office, January 25, 1870, and a reply 
 given March 15th, same year, stating gen- 
 erally, that the preliminary proofs were not 
 made in pursuance of, and were not in accord- 
 ance with the conditions of the policy, that 
 until those conditions should be complied 
 with, no answer would be given as to what the 
 company's action would be. Held, insurers 
 could not remain silent for nearly two months 
 and then complain in general terms. Imperial 
 Fire Ins. Co v. Murray, 73 Penn. St., 13. 
 
 61. Proofs of loss were made and delivered, 
 and no objections made to them till the time 
 of the trial. Held, all objections were waived, 
 overruling Eonmage v. Mechanics Fire Ins. 
 Co., 1 Green, 110. Basch o. Humboldt Mutual 
 Fire and Marine Ins. Co., 35 N. J., 429. 
 
 62. All objections to preliminary proofs are 
 waived, except those pointed out when they 
 are delivered. Ha/rtford Protection 7ns. Co. -o. 
 Hamnev, 2 Ohio St., 452. 
 
 63. Preliminary proofs were presented, and 
 the claim was rejected, on the ground that in- 
 sured was not the owner of the property. No 
 objections were made to the preliminary proofs. 
 Held, the failure to object to them was a waiver 
 of all defects. Globe Ins. Co. v. Boyle, 21 Ohio 
 St., 119; 8. c, 1 Cin. Sup. Ot, 444. 
 
 64. It is necessary on a trial at law for the 
 insured to show that he exhibited preliminary 
 proofs of loss to the insurer, before the action 
 was commenced. If the insurer does not re- 
 ject the claim on the ground tliat the prelim- 
 inary proofs, or a part of them have not been 
 produced, but states that the claim will not be 
 adjusted, this, by necessary implication, gives 
 the insured to understand that all further offisra 
 of preliminary proof would be useless. Aile- 
 gre v. Maryland Ins. Co., 6 H. & J., 408; 
 affirmed, 2G.& J., 136. 
 
 558 
 
 65. The fire occurred early in the morning 
 of August 11, 1869. Notice was given at Chi- 
 cago to the agents who had made the policy. 
 Preliminary proofs of loss were made, but no 
 certificate of a magistrate or notary public 
 accompanied them. The claim was referred 
 by the president to B. & W., adjusters at Chi- 
 cago, who declined to act, and L. was ap- 
 pointed to act in their place, to whom the 
 preliminary proofs were delivered about ten 
 days after the fire. L. said he would let in- 
 sured know if they were deficient. Insurers 
 received them from L. about the last of Sep- 
 tember, 1869. December 28, 1869, insurers 
 made a general objectihn to the preliminary 
 proofs, to which the attorneys of insured re- 
 plied, requesting insurers to indicate the par- 
 ticular defect, and oflFered to cure any defect 
 that was material ; lo which insurers replied 
 that the attorneys must determine from the 
 policy what preliminary proofs were neces- 
 sary and material. The policy stipulated: 
 "Nothing but a distinct, specific agreement, 
 clearly expressed and indorsed, shall operate 
 as a waiver of any printed or written condi- 
 tion, warranty or restriction herein." Held, 
 the stipulation referred to those parts of the 
 contract necessary to make it a binding con- 
 tract between parties ; it had no reference to 
 conditions subsequent, the performance of 
 which were to be made after a loss occurred, 
 such as giving notice and furnishing proofs 
 of the loss; and if insurers failed to object to 
 the paytaent of the loss because there was not 
 a magistrate's certificate, and refused to pay 
 the claim upon grounds other than defects in 
 the preliminary proofs, tlien they were es- 
 topped to urge the defect as a defense to the 
 action. Franklin Fire Ins. Co. ■». Chicago Ice 
 Co. 36 Md., 1.02. 
 
 66. If the formal proofs of interest and loss 
 are defective, the insurer must apprise the in- 
 sured of their objections. If insurers receive 
 the proofs without objection, and refuse to 
 pay the claim on other grounds, they cannot 
 be permitted to avoid liability by showing 
 technical objections to the proofs furnished. 
 St. Louis Ins. Co. v. Kyle, 11 Mo., 278. 
 
 67. The insurers refused to pay the claim 
 on grounds other than defects in tlie prelimi- 
 nary proofs. Held, they could not afterwards 
 insist upon such defects, and it matters not 
 that they said in terms, " We waive nothing;" 
 the court will look to their acts and ascertain 
 
1117 
 
 PROOFS OP LOSS. 
 
 1118 
 
 Of the preliminary proofs. 
 
 if there was a waiver. PhiUips v. Protection 
 Jn«.(7o.,14Mo.,220. 
 
 68. Kotice of the loss was given and an ac- 
 count of it furnished. Sdd, all grounds of 
 objections that might have been taken to the 
 preliminary proofs, but which were not stated, 
 were to be considered waived ; the company 
 could not afterwards insist upon objections 
 not stated when the proofs were delivered 
 (citing Vos v. Kobinson, 9 Johns., 192; Child 
 e. Sun Mut. Ins. Co., 3 Sandf., 27 ; Bumstead 
 V. Dividend Mut. Ins. Co., 12 N. T., 81). Pe- 
 oria Marine and Fire Ins. Oo. v. Lewis, 18 111., 
 553. 
 
 69. The insurer's secretary, in reply to in- 
 sured, stated that the preliminary proofs were 
 not made clearly, nor were they in accordance 
 with the requirements of the policy, and re- 
 quested new proofs, made in accordance with 
 article nine of the conditions of the contract. 
 Ten days thereafter insured replied that he 
 had DO objection to make such proofs of loss 
 as were necessary and the facts would justify; 
 that the insurer's president and agent had 
 both expressed tliemselves satisfied with the 
 proofs already delivered, that he did not know 
 what fact required further elucidation, and 
 that if he knew what insurer wished he would 
 endeavor to comply. It seems the prelimina- 
 ry proofs did not disclose the names of the 
 owners of the property insured, nor their in- 
 terest in it Held, every informality was waived, 
 for every ground of objection that might have 
 been taken and which was not stated when 
 the proofs were furnished, was waived. At- 
 lantic Ins. Co. V. Wright, 32 111., 463. 
 
 70. No defects in the preliminary proofs 
 were stated, when they were presented to the 
 company. Insured asked the company's sec- 
 retary if he should make any further proofs 
 of loss, who replied, " He could do so if he 
 had a mind to." B^eld, a refusal to pay, based 
 on grounds other than a defect in the prelimi- 
 nary proofs, and the failure to suggest any de- 
 fects in them, must be treated as a waiver of 
 all defects, and they were to be considered as 
 made according to the conditions of the pol- 
 icy. Peoria Marine and Fire Ins. Co. v. 
 Whitehai, 35 III., 466 ; Oreat Western Ins. Go. v. 
 Staaden, 26 id., 360. 
 
 71. The insurers furnished blanks for the 
 purpose of making proofs. They were m*de 
 and returned to insurer's agents, who sent 
 them to the principals, who retained tliem I 
 
 without making specific objections. ITeld. all 
 existing objections were waived. Insurance 
 Company of North America v. McDowell, 50 
 111., 120. 
 
 72. Stipulated: " Proofs of loss shall bede- 
 livered to insurer within thirty days after the 
 loss occurs." They were made and delivered 
 within the time mentioned ; but they were nat 
 correct in form. Insured visited insurer's 
 office several times but no objections were 
 taken against them. Held, all objections were 
 waived. Winnesheih Ins. Co. v. Schueller, CO 
 111., 465. 
 
 73. Insured notified company's resident 
 agent of the destruction of the property. He 
 was told the adjuster would soon be there, and 
 to call again. Preliminary proofs of loss 
 were made and presented to the agent, who 
 refused to receive them on the ground that 
 the company was not liable for tlie loss. 
 Held, the company could not raise formal ob- 
 jections to them. If they were insufficient it 
 was the duty of the agent to object at once 
 and thus enable insured to ascertain the defect 
 and cure it. Incoming Fire Ins. Co. v. Dun- 
 more, 75 111., 14. 
 
 74. The local agent testified he received 
 notice of the fire, and wrote the proofs of loss. 
 Held, sufficient evidence that the proofs were 
 received by the agents of the company; that 
 failing to make any objections to thera was a 
 waiver of all objections. Warner ■». Peoria 
 Marine and Fire Ins. Co., 14 Wis., 318. 
 
 75. Insured presented a certificate of his 
 claim to the agent of insurer, who retained it, 
 and, about a month after, said to insured that 
 the preliminary proofs were irregular, in- 
 formal and insufficient; but he did not go 
 into details as to the insufficiency. Held, evi- 
 dence of a waiver of strict compliance with 
 the requirements of the policy as to proofs of 
 loss. Madsden d. Phanix Ins. Co., 1 So. Car., 24. 
 
 76. Stipulated: "Insured shall forthwitli 
 give notice of the loss, and, as soon thereafter 
 as possible, deliver a particular account of it, 
 signed, etc., and verified by oath.'' Prelimin- 
 ary proofs were delivered to the agents of 
 insurers, but they were objected to on the 
 ground that insured had not signed and sworn 
 to them. Other preliminary proofs were made 
 and delivered to the insurer's agents, who 
 made no objection to them. Held, they could 
 not demand further preliminary proofs. Ilome 
 Ins. Co. V. Cohen, 20 Gratt., 813. 
 
 559 
 
1119 
 
 PROOFS OF LOSS. 
 
 1120 
 
 Of the preliminaty proofs. 
 
 77. Defendants agreed that no objection 
 should be taken to the want of a policy ; that 
 the question to be tried should be confined to 
 the cause and manner of the loss ; that all pro- 
 ceedings should be in the same manner and to 
 the same eflFect as if the policy had been duly 
 and properly signed and produced. Held, de- 
 fendant could not raise any question as to 
 whether the notice and proofs of loss re- 
 quired by the policy had been made. Walker 
 V. Western Ass. Go., 18 TJ. C. Q. B., 19. 
 
 (e) When insurer is not precluded 
 from oijecting to defects or i/nsuffi- 
 
 ciendes. 
 
 78. Insurers received the preliminary proofs, 
 notified insured that they were wholly unsat- 
 isfactory as to the amount of his claim, de- 
 nied all liability on the ground that the title 
 had been misrepresented, reserved all objec- 
 tions to a recovery in any form, declared that 
 they did not waive any rights under the policy, 
 but left insured to pursue such course as he 
 should deem expedient. ITeld, no waiver of 
 preliminary proofs. Citizens Fire Ins. Co. n. 
 Doll, 35 Md., 89. 
 
 (f ) What are sufficient proofs of loss. 
 
 79. Stipulated: "To be paid thirty days 
 after proof thereof." Held, not to mean proof 
 in a strictly legal and technical sense, but 
 reasonable information of the fact of the loss, 
 and the usual documentary evidence is suffi- 
 cient. Talcot V. Marine Ins. Co., 2 Johns., 
 130. 
 
 80. The clause in the policy that the loss is 
 to be paid " thirty days after proof," requires 
 the insured to furnish reasonable Information 
 to the insurer, that he might be able to esti- 
 mate his rights and duties. Barker v. Phmnix 
 Ins. Co., 8 Johns., 807. 
 
 81. The clause in the policy which makes 
 preliminary proof necessary before payment 
 can be demanded requires only the best evi- 
 dence of the loss that the party possesses at 
 the time. Lawrence «. Ocean Ins. Co., 11 
 Johns., 240. 
 
 82. The preliminary proofs stated that tlie 
 mill insured was totally destroyed by fire. 
 Held, suflScient; that the insured was not 
 bound to state in the preliminary proofs the 
 
 560 
 
 nature or extent of his interest. Cfilbert v. 
 North American Ins. Co., 33 Wend., 'IS. 
 
 83. Conditioned: "Claimant must state 
 the name of the physician or physicians in at 
 tendance at the place and date of burial, 
 and produce an affidavit from the med- 
 ical attendants, etc. A nonpracticing phy- 
 sician, B., was present at the time deceased 
 was brought in with a gunshot wound, and to 
 relieve his sufferings, administered morphine. 
 Held, B. was not an attending physician, 
 therefore, his name being omitted in the pre- 
 liminary proofs, was no defense to the action. 
 Gibson v. American Mut. Ins. Co., 37 N. T., 
 580. 
 
 84. Life policy to be paid within ninety 
 days after due notice and proof of interest, and 
 of tiie death of the insured. The only evi- 
 dence tending to show a compliance with this 
 condition was the following question and 
 answer: " Did you deliver preliminary 
 proofs?" Ans. "Yes, at the defendant's 
 office, more than ninety days before the com- 
 mencement of this suit." Seld, sufficient to 
 sustain the verdict. Sineken v. Mutual Bene- 
 fit Life Ins. Co., 50 N. Y., 657. 
 
 85. For account of whom it may concern. 
 The preliminary proof failed to show the 
 transfer of the interest of Albert to Francis. 
 Held, that did not invalidate the claim of -the 
 plaintiff under the policy as trustee. Walsh 
 11. Washington Marine Ins. Co., 32 N. Y., 437 ; 
 3 Kob., 202. 
 
 86. The defendants objected that the pre- 
 liminary proofs of loss did not disclose the 
 interest of the owners of the cargo, nor did 
 they show the contents of the cargo. The 
 preliminary proofs consisted of tlie ship's 
 register, and an affidavit of her managing 
 agent, in which were set forth, when she 
 sailed, at what place she was reported, where 
 she was then bound, when she was again 
 spoken, and that she had never been heard of 
 from that date, November, 18, 1845. This af- 
 fidavit was dated July 17, 1847. Held, they 
 were sufficient. Child v. Sun Mut. Ins. Co., 3 
 Sandf., 26. 
 
 87. Payable in ninety days after due notice 
 and proof of death. When plaintiff presented 
 proofs of death, insurer delivered to him a 
 pamphlet which stated, among other things, 
 that a certificate from the physician who at- 
 tended the party in his last sickness was re- 
 quired. Held, the party was bound by tho 
 
1121 
 
 PROOFS OF LOSS. 
 
 1122 
 
 Of the' preliminary proofa. 
 
 contract only, and he was not bound to fur- 
 nish physician's certificate. Taylor v. ^tna 
 Life Im. Co., 13 Gray, 434. 
 
 88. The statute provides that certain pre- 
 . liminary proofs of loss shall be deemed suf- 
 ficient to authorize the plaintiff to maintain 
 his suit. Held, it did not debar the insured 
 from maintaining a suit when the notice re- 
 quired by the conditions of the contract had 
 been given. Fox o. Conway Fire Ins. Co., 58 
 Me., 107. 
 
 89. Stipulated that proof of the extent of 
 interest of the equitable lien holder shall be 
 given to the directors to their satisfaction. 
 Held, it was sufiScient to show that pi"oof was 
 laid before them with which reasonable men 
 would be satisfied. Moore v. Woolney, 4 El. & 
 Bl., 243; s. c, 24 L. J. Q. B., 40; 1 Jur. (N. 
 S.), 468. 
 
 90. Stipulated : " Proof of death or acci- 
 dent, satisfatory to the directors, shall be fur- 
 nished by the claimant, together with such ev- 
 dence or information, if any, as the directors 
 shall think necessary to establish the claim." 
 Held, the directors could not capriciously de- 
 mand proof which was unreasonable. 
 Braunstein o. AKidetital Death Ins. Co., 1 B. 
 & S., 783; s. c, 8 Jur. (N. S.), 506; 31 L. J. Q. 
 B.,17; 5 L. T. (N. S.), 550. 
 
 (g) When preliininary proofs are in 
 time. 
 
 91. Stipulated: "In event of injuries for 
 which claim may be made under the policy, 
 insured shall immediately thereafter give no- 
 tice in writing to insurer at Hartford, Connec- 
 ticut, stating full name, occupation, and ad- 
 dress of insured, with full particulars of the 
 accident and injury." The local agent was 
 notified, and the branch oflSce or agency at 
 Chicago furnished with the necessary particu- 
 lars. The company's agent at Kichmond, In- 
 diana, notified the insured by letter that the 
 company had decided his case, and concluded 
 to pay him four weeks compensation at twen- 
 ty-live dollars per week as a compromise ; but 
 asserted, that he had not established his claim 
 by the proofs sent. Held, it was a waiver of 
 the condition (citing Bodle «. Chenango 
 County Mut. Ins. Co., 3 N. Y., 53 ; Brown n. 
 Kings County Ins. Co., 31 How. Pr., 508; Sex- 
 ton B. Montgomery County Ins. Co., 9 Barb., 
 191 ; Clark v. New England Mut. Ins. Co., 6 
 
 36 
 
 Cush., 343 ; Francis «. Ocean Ins. Co., 6 Cow,, 
 104; Columbia Ins. Co. ». Lawrence, 10 Pet., 
 507; Tayloe o. Merchants Ins. Co., 9 How. 
 390; ^tna Fire Ins. Co. ■». Tyler, 16 Wend.,' 
 385). Unthank v. Travelers Ins. Co., 4 Biss., 357. 
 
 92. Policy required a particular account 
 of the loss to be delivered as soon as possible 
 after the fire. One was made and delivered ; 
 insured subsequently requested permission to 
 make a copy of it, which was repeatedly evad- 
 ed, and finally refused. Insured tlien made a 
 new account, and delivered it four montlis 
 after the fire. /TeM, it was in time. Cornell v. 
 Le Boy, 9 Wend., 163. 
 
 93. Stipulated: "Insured shall deliver to 
 the company a verified written account of his 
 loss within ten days after it shall occur." 
 This was not done till about one month after 
 the fire. Plaintiff testified that on the third 
 day after the fire, he called upon defendant's 
 agent, by whom the policy was effected, told 
 him of the fire, and asked what he should do. 
 Agent said he would write to defendant's gen- 
 eral agent, who would come, and they would 
 call upon insured, make affidavits, and 
 straighten the matter up. They came about 
 a month after the fire, prepared an affidavit 
 which he verified, in which an account of the 
 loss was given, and they took it and promised 
 to straighten the matter up. They returned 
 on the same day, talked with him about the 
 loss, but did not adjust or pay it. In about 
 three weeks thereafter, about seveu weeks 
 after the fire, insured made another account 
 of the loss, sent it to the secretary, who re- 
 turned it because it was not made and deliv- 
 ered within ten days after the fire. This 
 evidence was conti-adicted. Held, the court 
 erred in refusing to submit the question of 
 waiver to the jury. Underwood v. Farmers 
 Joint Stock Ins. Co., 57 N. Y., 500; s. c, 48 
 How. Pr., 367. 
 
 94. Stipulated: "A particular account of 
 the loss shall be delivered within ten days 
 after it shall occur." Insured was absent 
 when the fire occurred, but another person 
 mimed in the policy as having an interest in 
 it, gave notice of the fire which occurred May 
 20, 1868. Twenty days thereafter defendants' 
 general agent and adjuster, and one of the 
 directors, came to the place with a view to 
 settling the claim. He returned July 1st, and 
 stated that he came to adjust the loss. On be- 
 ing told that the plaintiff was absent, and that 
 
 561 
 
1123 
 
 PROOFS OF LOSS. 
 
 1124 
 
 Of the preliminary proo&. 
 
 the proofs of loss had not been prepared, he 
 stated it would make no difference, they could 
 be made and sent when the plaintiff returned. 
 On his return they were made and sent to the 
 defendants August 14th, who retained them 
 tea or twelve days and then returned them. 
 Held, a distinct recognition of the defendants' 
 liability for the loss after the time for serving 
 the proofs had expired ; and this was suflBcient 
 to establish a waiver of the condition which 
 required the proofs to be made in ten days. 
 Omen o. Farmers Joint Stock Ins. Go., 57 
 Barb., 518; 8. c, 10 Abb. Pr. (N. 8.), 166 n. 
 
 95. Stipulated: "Insured shall, within ten 
 days after any loss occurs, deliver a particular 
 account thereof to the company, signed and 
 verified by the insured." Meld, evidence that 
 the person wlio solicited the insurance used 
 language to the insured which might have in- 
 duced liim to postpone the making and for- 
 warding of the proofs within the time limited, 
 was evidence to sustain a waiver of the condi- 
 tion. Dohn V. Farmers Joint Stock Iris. Co., 5 
 Lans., 275. 
 
 96. Insurer's agent was supplied by his 
 principal with policies signed in blank. He 
 had filled out and delivered one for this risk. 
 Stipulated: "Insured shall forthwith give 
 notice thereof (loss) in writing to the com- 
 pany, and within sixty days from the occur- 
 ring of the fire, shall deliver as particular an 
 account of the loss as the nature of the 
 case will admit." The secretary of the 
 insured informed him that numerous fires 
 were occurring along the line of the road; 
 that insured were examining carefully the 
 claims made therefor. B. replied, "This was 
 satisfactory, and that when the railroad com- 
 pany should .get through paying, to hand in a 
 schedule of what had been paid and it should 
 be attended to." Neither notice nor proofs of 
 loss were made; but about eight months after 
 all the claims had been paid by the railroad 
 company, the treasurer made a sworn state- 
 ment of each and all the losses which had 
 been sustained. Held, the preliminary proofs 
 of loss were waived, and insured entitled to 
 judgment. Eastern Railroad Co. «. Belief Fire 
 Ins. Go., 105 Mass., 570. 
 
 97. Stipulated: " Notice and proof of loss 
 shall be made by the insured witliin three 
 months after it shall happen." The insured 
 averred notice and proof of loss within the 
 time mentioned, of which there was no denial 
 
 562 
 
 in the pleadings; bat the evidence showed 
 that an agent of the company examined into 
 the matter, and took the deposition of the in- 
 sured. Held, a sufScient compliance with the 
 condition. Guniberland Valley MututU Protec- 
 tion Co. V. ScheU, 29 Penn. St., 31. 
 
 98. On receiving notice of the loss, insurers 
 referred insured to their resident agent, and 
 instructed him to procure a statement of it. 
 The policy required a particular account of 
 the loss to be made within thirty days after it 
 should happen. Held, the agent had authority 
 to extend the time. Incoming County Ins. Co. 
 V. SehoUenberger, 44 Penn. St., 259. 
 
 99. The fire occurred March 2, 1871. No- 
 tice of it was given the following day; but 
 the particular account, required as soon after 
 the loss as possible, was not given till April 
 3d, following. In the meantime the adjusting 
 agent examined the premises, had conversa- 
 tions with insured, and examined his books. 
 Held, sufficient. Jones v. Mechanics Fire Ins. 
 Co., 36 N. J., 29. 
 
 100. Stipulated: "The insured shall give 
 notice of the loss, and within thirty days de- 
 liver a particular account thereof," etc. The 
 fire occurred June 30th. The preliminary 
 proofs were furnished July 15th, and a corres- 
 pondence continued between the parties to 
 October 24th, negotiating an adjustment and 
 settlement. Held, all defects in the prelimin- 
 ary proofs were waived. Planters Hut. Ins. 
 Go. r). Heford, 38 Md., 382; Frederick County 
 Mvt. Ins. Co. «. Same, id., 404. 
 
 101. Notice of the loss was given, but the 
 preliminary i>roofs were not delivered until 
 nineteen days thereafter. Held, the delay was 
 not unreasonable. Wightman b. Western Ma- 
 rine and Fire Ins. Co., 8 Rob. (La.), 442. 
 
 1 02. The preliminajy proofs were made a 
 few days too late. They were transmitted by 
 the agent to insurer, who made no objection 
 to the form, substance or time of presentation; 
 and the company made repairs upon another 
 building insured under the same policy. Held, 
 insurers were estopped to take advantage of a 
 failure to make the proofs within tlie exact 
 time specified in the policy. Hibernia Ins. 
 Go. V. O'Connor, 29 Mich., 241. 
 
 103. The defendant moved a nonsuit, ou 
 the ground that the insured bad not proved 
 the time he forwarded the particulars of his 
 loss, substantiated as required by the terms of 
 the policy and within the time (thirty days) 
 
1125 
 
 PROOFS OF LOSS. 
 
 1126 
 
 Of the proliminaiy proofe. 
 
 limited by the policy; but the secretary ac- 
 knowledged notice of the loss and of the pre- 
 liminary proofs, saying that he was satisfied 
 •with them, and would lay them before the 
 directors or an acting committee. ileW, the 
 secretary's letter was suflScient evidence that 
 the condition had been complied with. Troy 
 Fire Int. Go. n. Carpenter, 4 Wis., 20. 
 
 104. Stipulated: "Loss shall be paid sixty 
 days after due notice and satisfactory proof 
 of the same; and in case of loss, insured shall 
 give immediate notice thereof, and shall ren- 
 der a particular account thereof to the cojn- 
 pany. Held, a verbal notice of the loss to the 
 company's agent was sufficient; that proofs 
 of loss were not required to be furnished im- 
 mediately, but within a reasonable time. KiU 
 lipg V. Putnam Fire Ins. Co., 28 Wis., 472. 
 
 105. Stipulated: "The insured, in case of 
 loss, shall immediately notify the general 
 agent al CSiicago." The policy was effected 
 through a local agent residing in the town of 
 Arago. The premises were burned April 16, 
 1871. About July 15, 1871, insured sent a let- 
 ter to the general agent of the company, stat- 
 ing the loss of the property. Insurer's gen- 
 eral agent addressed a letter to the insured, 
 dated August 16, 1871, in which the writer 
 said there were suspicious circumstances con- 
 necteil with the fire which should be ex- 
 plained. Insured made formal proofs of loss, 
 and transmitted them to the general agent at 
 Chicago, January 22, 1872. Held, it was proper 
 to leave to the jury the question whether in- 
 sured had used due diligence in furnishing 
 the preliminary proofs of the loss. Continen- 
 tal Int. Co. v. Lippold, 3 Neb., 391. 
 
 (h) When preliminary jyroof 8 are not 
 in time. 
 
 106. The policy required insured to furnish 
 proofs of loss within thirty days after the fire. 
 Insurer's adjuster visited the premises, made 
 inquiry into the circumstances of the fire, but 
 without direction from his principals. He 
 made no communication or negotiation with 
 insured. Four months thereafter the neces- 
 sary proofs of loss were made and served. 
 Defendant acknowledged receipt of them, and 
 objected, first, that the proof was too late, that 
 it should have been made within thirty days 
 after the loss; and second, that the claim was 
 fraudulent. Edd, the defendant was at liberty, 
 
 in response to the claim then made for the first 
 time, to take every objection which was open, 
 and refusing to pay it on the ground that it 
 was fraudulent was not a waiver of the right 
 to insist upon the want of timely proof. (Ct. 
 of App., N. Y.) Blossom v. Lycoming Fire 
 Int. Co., 5 Ins. L. J., 302. 
 
 107. A failure to point out defects in the 
 preliminary proofs of loss does not waive in- 
 surer's right to insist upon the trial that the 
 notice and proofs of the loss were not deliv- 
 ered within the time required by the policy. 
 St. Louis Ins. Co. v. Kyle, 11 Mo., 278. 
 
 1 08. Stipulated : "Insured shall give imme- 
 diate notice of any loss or damage by fire, 
 and as soon as possible deliver a particular ac- 
 count of it, accompanied by a magistrate's 
 certificate, showing (among other things) the 
 amount of the loss." Insured delivered a 
 defective certificate, and was compelled on the 
 trial to submit to a nonsuit A proper certifi- 
 cate was then obtained, and delivered eight 
 months after the loss. Held, whether it was 
 delivered in time was a question for the court; 
 that the failure of insurers to point out the 
 defects, in the first certificate, could not be 
 considered in determining the question, and 
 that it was not in time, hence no recovery 
 could be had. Hobson v. Western Ass. Co., 
 19 U. C. Q. B., 314. 
 
 (i) Of aMhx)rUy to waAve prel/vnwna/ry 
 proofs. 
 
 109. The company's charter provided that 
 the president, with one third of the directors, 
 shall be competent to transact all the business 
 of the corporation. Hdd, the president alone 
 had no authority to waive preliminary proofs 
 of loss. DaiBcs V. North River Ins. Co., 7 
 Cow., 462. 
 
 110. Stipulated: "No act or omission of 
 the company, or its officers or agents, shall be 
 deemed a waiver of a full and strict compli- 
 ance with the conditions concerning prelim- 
 inary proofs of loss, except it shall be in 
 writing signed by the president or secretary 
 of the company." Held, the condition was 
 directly in conflict with the settled legal rules 
 of law established for the government of this 
 class of cases; that while a party may re- 
 nounce those settled rules of law existing in 
 his favor, his purpose to do so must be clearly 
 
 663 
 
1127 
 
 PROOFS OF LOSS. 
 
 1128 
 
 Of the particular account. 
 
 evinced; that the acceptance of tlie policy 
 containing this clause, unless his attention was 
 directed to it, should never be permitted to 
 Ijroduce such a result, for the policy of the law 
 stands directly in the way of allowing persons 
 to be successfully entrapped by such an in- 
 genious device, into an implied surrender of 
 their well established rights. Pitney v. Glens 
 Falls Ins. Co., 61 Barb., 335. 
 
 II. Of the paeticulae account. 
 
 (a) WTiai is sufficient. 
 
 1. All of the books and papers of the in- 
 sured were destroyed by the fire. He made a 
 statement in gross of the amount of the loss. 
 Held, it was as particular an account of the 
 loss as the nature of the case would admit. 
 Norton v. Rensselaer Ins. Co., 7 Cow., 645. 
 
 2. Aflaclavit of loss stated: "Merchandise 
 on hand when fire occurred, ipl,497.87; goods 
 saved, $605.25; supposed to be damaged in 
 part, $64.67 ; clothing consumed, $53 ; amount 
 of produce, $19; thirty half barrels, $4. 
 Total, $1,639.54. Deduct goods saved, $605.25 
 (leaves $1,034.07), whole amount of loss as 
 near as we can estimate the same. There was 
 no other insurance on store or mei-chandise. 
 Tlie store was totally destroyed." Held, a 
 suflScient particular account of the loss. 
 MeLaughlin «. WasJiington County Mut. Ins. 
 Co., 23 Wend., 525. 
 
 3. The particular account of the loss was 
 made under the advice of the company's agent. 
 No objection was made to it, and the com- 
 pany oflfered to pay about three-fourths of the 
 claim. On being pressed for payment, they 
 objected generally to the account of the loss. 
 Held, it was the company's duty to have made 
 objection at the time, and to show wherein 
 it was insufficient; an oJDJection that it was not 
 such a particular account as Was required by 
 the policy was too general and indefinite. 
 liodle t. Chenango Oounty Mut. Ins. Oo., 2 N. 
 Y., 53. 
 
 4. Stipulated: " Insured shall within thirty 
 days deliver to insurer a particular account of 
 loss, verified by oath, and, if required, by his 
 books and papers," etc. Held, the condition 
 was satisfied by as full and accurate au account 
 as the insured, without fraud on his part, was 
 able to furnish ; and where his books, papers, 
 
 561 
 
 and inventories were consumed, his statement 
 verified by oath, showing the fact, and that the 
 property insured was at least of the value in- 
 sured, was sufficient. Hynds v. StAenectady 
 County Mut. Ins. Co., 11 N. Y., 554; s. c, 16 
 Barb., 119. 
 
 5. Stipulated: "In case of loss, insured shall 
 render a particular account of such loss, signed 
 and sworn, etc., and if personal property shall 
 be damaged, insured shall cause it forthwith 
 to be put in order, assorting the various arti- 
 cles according to their kind, separating the 
 damaged from the undamaged, and shall fur- 
 nish to the company an inventory of the whole 
 naming the quantity, quality and cost of each 
 article; the amount of sound value and dam- 
 age shall then be ascertained by appraisal." 
 Insurers' agents took possession of the store 
 the morning after the fire occurred, made an 
 examination of the property and of plaintiflPs 
 books, which occupied several days, and they 
 concluded the loss was total, and that no further 
 examination would be necessary, whereupon 
 proofs of loss were forwarded, in which noth- 
 ing but the amounts of purchases and sales, 
 and the value of the goods saved were stated. 
 This was delivered December 1st. Insured was 
 shortly after asked to make an inventory of 
 the goods saved ; as to whether it was done the 
 evidence was conflicting. About six weeks 
 thereafter insurers notified insured by letter 
 that his proofs of loss were not accepted. Held, 
 if it appeared from the evidence that the agents 
 who made the examination told tlie insured 
 that the adjustment was satisfactory, and that 
 his loss would be paid, insured had the right 
 to rely upon that promise, and insurers must 
 be estopped to set up as a defense to the ac- 
 tion a noncompliance with the conditions 
 mentioned. Bush v. Westchester Fire Ins. Co., 
 2 N.Y. S. C, 629. 
 
 6. Insured stated under oath the value of the 
 goods lost, and the value at the time of the 
 fire. Held, a sufficient compliance with the 
 condition which required a particular account 
 of the loss. Harkins v. Quincy Mutual Fire 
 Ins. Co., 16 Gray, 591. 
 
 7. The preliminary proofs stated that the 
 building was consumed by fire, and that there 
 was a total loss of it. The brick chimneys 
 and the stone work were left standing, but the 
 preliminary proofs did not so state. Held, 
 they were sufficient notwithstanding the by- 
 laws required that the value of such parts as 
 
1120 
 
 PROOFS OF LOSS. 
 
 1130 
 
 Of the particulax account. 
 
 remain should be stated. Wyrtian «. People's 
 Equity Im. Go., 1 Allen, 301. 
 
 8. Insurers refused to pay on the ground 
 that the risk had been changed, and thereby 
 increased. Held, a waiver of the conditions 
 requiring notice of the fire, and particular ac- 
 count of the loss and damage. Francis n. Som- 
 meroille Mut. Ins. Co., 25 N. J., 7tJ. 
 
 9. Insured and the company's agent agreed 
 that the amount of tlie loss should be ascer- 
 tained by an examination of the books of in- 
 sured. They were submitted and examined. 
 In connection with this the president of the 
 company acknowlcged receipt of a state- 
 ment of the claim.but rejected it "ou account 
 of circumstances connected with the insur- 
 ance." There was no particular account of 
 tlie loss delivered, as required by the policy. 
 Held, evidence of a waiver of the particular 
 account. Franklin Fire Ins. Co. c. Updegraff, 
 43 Penn. St., 350. 
 
 10. On a coal breaker valued. Insured 
 wrote insurers: "My coal breaker, which is 
 insured in your oflSce, is burned down this 
 morning. The number of the policy is 46,093 ; 
 amount $2,500. Please give youi- agent in- 
 structions in regard to settlement." Held, as 
 particular an account of the loss a.s could well 
 be given. Lycoming County Ins. Co. d. Sehol- 
 lenberger, 44 Penn. St., 259. 
 
 11. Stipulated: "In case of loss the insured 
 shall give immediate notice, and render to the 
 company a particular account of said loss, 
 under oath, stating the time, origin, and cir- 
 cumstances of the fire." Held, the word,'- im- 
 mediate," applied to the notice; that a verbal 
 notice was sufficient ; that it was not necessary 
 to render the particular account immediately. 
 O'Connor v. Hartford Fire Ins. Co., 31 Wis., 
 160. But if the particular account ought to. 
 have been, but was not given immediately, a 
 failure to object to the proofs on that ground, 
 was a waiver of the condition. Ibid. 
 
 (b) What is not sufficient. 
 
 1 2. Stipulated : " The insurance shall not 
 be paid until insured shall have made a i)ar- 
 ticular account in writing under oath, 
 stating the value of the property lost and 
 the nature and value of his interest. Held, 
 an account which does not state the nature and 
 value of insurer's interest at the time of the 
 loss is insufficient, although it states that the 
 
 entire property was destroyed. Wellcome v. 
 People's EquitabU Mutual Fire Ins. Co., 2 
 Gray, 480. 
 
 13. Stipulated: "Every one sustaining 
 loss shall within thirty days file a particular 
 account with the secretary." etc. Held, an 
 omission to present the particular account 
 for seventeen months released insurer, and a 
 letter written by the president, when the par- 
 ticular account was received, stating that the 
 company would be disposed to do what was 
 right, that they knew at the time of the fire 
 that the loss was theirs and were surprised that 
 tliey had not been notified, was not a waiver 
 of the forefeiture. Smith v. Haverhill Mutual 
 Fire Ins. Co., 1 Allen, 397. ^ 
 
 14. Stipulated: "Persons sustaining loss 
 or damage by fire must forthwith give written 
 notice to the company, and within sixty days 
 deliver as particular an account thereof as the 
 nature of the case will permit ; also, this policy 
 is made and accepted in reference to the terms 
 and conditions herein contained and hereto 
 annexed." Held, before insured could recover, 
 it must appear that he had complied with the 
 condition. Eastern Railroad v. Helief Fire 
 Ins. Co., 98 Mass., 420. 
 
 15. Stipulated: "Notice of the loss shall 
 be forthwith given to the company, and as 
 soon thereafter as possible a particular ac- 
 count of it, verified by oath oraffii-mation." 
 The plaintiff averred compliance, and, for the 
 purpose of supporting it, gave evidence to 
 prove that the company's agent waived notice 
 of the loss. Held, evidence establishing a 
 waiver of the notice did not establish a waiver 
 of the particular account of the loss. Hesilver 
 V. State Mut. Ins. Co., 38 Penn. St, 130. 
 
 1 6. Stipulated : " Insured shall make and 
 deliver to the secretary of the company, within 
 thirty days after loss, a particular account of 
 it." The day after the fire the president vis- 
 ited the ruins, and a few days thereafter the 
 books of accounts of insured were carried 
 to his hotel and delivered to him and 
 an agent of another company, interested 
 in the loss. About a week thereafter in- 
 sured addressed a letter to the president, 
 stating the amount of the loss, giving the 
 amount of purchases and sales, less the profits, 
 showing a balance as loss, and mentioning the 
 name, number and amount of insurance made 
 in other companies. This was signed by the 
 assignees of the policy, not by the persons 
 
 565 
 
1131 
 
 PROOFS OF LOSS. 
 
 1132 
 
 Of the ma^trate's or surgeon's certificate. 
 
 insured. Held, not a particular account of the 
 loss, nor any evidence of a waiver tliereof. 
 Lycoming County Ins. Go. v. Updegraff, 40 Penn. 
 St., 311. But in another action the court held, if 
 it was received by the company, and no objec- 
 tion made to it, that would be evidence from 
 which the jury might find there was a waiver 
 of a more particular statement. Franklin 
 Fire In». Co. v. Updegraff, 43 Penn. St., 350. 
 
 17. S., local agent of the company, was au- 
 thorized to make surveys, to submit tliem to 
 the company, and to receive assessments made 
 upon policies. He made an examination on 
 the day after the fire, and notified insured that 
 the company would not pay the claim. Held, 
 not sufBcicnt to establish a waiver of the par- 
 ticular account of the loss. Stipulated: "In- 
 sured shall deliver a particular acount of his 
 loss to the secretary, within thirty days after 
 loss." The paper purporting to be a particu- 
 lar account, stated : " Household furniture 
 $867, groceries $283." Held,- no compliance 
 with the condition, hence it was not proper to 
 submit the question \r> the jury. Beatty n. Ly- 
 coming County Ins. Co., 66 Penn. St., 9. 
 
 18. Defendant pleaded nonperformance of 
 the condition requiring delivery of a particu- 
 lar account of the loss. Plaintiff offered pa- 
 rol evidence of waiver of the condition. Held, 
 it could not be received, for that would substi- 
 tute a parol agreement in answer to a sealed 
 instrument; that the managing director and 
 secretary had not power to waive performance 
 of a condition precedent. Scott o. Niagara 
 District Ins. Co., 35 U. C. Q. B., 119. 
 
 19. A condition in the policy requir- 
 ing the insured to deliver to the secretary 
 of the insurer, withiu three months after loss, 
 full particulars of it, is a condition precedent 
 to the right of the insured to recover for any 
 loss. Mason v. Harvey, 8 Exch., 819 ; 23 L. J. 
 Ex., 336. 
 
 20. Stipulated : " Particular account of the 
 loss, verified by aflBdavit, shall be delivered to 
 the company within thirty days after the loss." 
 The parties agreed upon everything except the 
 amount of the loss, and an arbitration was 
 proposed, but did not take place before the 
 thirty days elapsed, and then the proofs were 
 perfected and delivered. Held, no evidence 
 that the condition had been waived, hence the 
 insured could not recover. Lewis v. Niagara 
 District Mutual Fire Ins. Co., 12 U. C. C. P., 
 133. 
 
 566 
 
 III. Of the magistbate's oe sur- 
 geon's OEETIFICATE. 
 
 (a) When sufficient. 
 
 1. Policy required the production of a 
 magistrate's certificate, showing the amount 
 of loss. Held, whether it was produced withiu 
 a reasonable time, all the facts pertaining to 
 it being set up in the special pleadings, was a 
 question ,for the court; and the court deter, 
 mined that the production of It in five years 
 after the loss was not unreasonable. Colum- 
 bian Ins. Co. V. Lawrence, 10 Pet., 507. 
 
 2. The magistrate's certificate was defective 
 in not having a seal. Defendant refused to 
 pay the claim, but failed to direct the atten- 
 tion of the insured to the defect. Held, ob- 
 jection could not be made to it at the trial. 
 McMasters v. Westchester County Mut. Ins. Co., 
 25 Wend., 379. 
 
 3. Stipulated : " Insured shall produce a 
 certificate under the hand and seal of a magis- 
 trate or notary public most contiguous to the 
 place of the fire," etc. The magistrate who 
 gave the certificate was not the nearest. Held, 
 an exact and literal compliance was not neces- 
 sary. But he omitted to state that he was 
 acquainted with the character of the insured. 
 Insurer's agent refused Ui return the proofs 
 for correction, or to point out the defect. 
 Held, a waiver of the defect. Turley ®. North 
 American Ins. Co., 35 Wend., 374. 
 
 4. Magistrate's certificate stated that he 
 resided two miles from the x>lace of loss, that 
 he verily believed insured had, by misfortune 
 and without fraud or evil practice, sustained 
 damage by fire to the amount of the build- 
 ings therein mentioned. Held, a good cer- 
 tificate. ^tjM Fire Ina. Go. v. Tyler, 16 Wend., 
 385; 12 id., 507. 
 
 5. The certificate of loss was by a near, but 
 not by the nearest magistrate. The insurer 
 did not object to pay the loss on that ground. 
 Held, the defect was waived. O'Niel v. Bvffalo 
 Fire Ins. Co., 3 N. T., 123. 
 
 6. Stipulated: "In case of loss, insured 
 shall produce the certificate of a magistrate, 
 notary public or commissioner of deeds, most 
 contiguous to the fire," etc., stating that he has 
 examined the circumstances, etc. Tlie loss 
 occurred December 5, 1861. Insured made 
 his proofs of loss on the 10th, but without the 
 required certificate. Insured testified that ho 
 
1133 
 
 PROOFS OF LOSS. 
 
 1134 
 
 Of the magistarate's or surgeon's certiflcato. 
 
 procured one on tlie 13th, and that it was sent a 
 day or two after to tlie defendants ; but the 
 president testified that it had never been re- 
 ceived. There was no evidence of a request for 
 further proofs; the claim was notobjected to on 
 the ground that the preliminary jjroofs were 
 defective, nor was there ever any intimation 
 given tlie plaintiff that he had not complied 
 with all tlie terms of the policy. Held, a de- 
 fect in the preliminary proofs could not be 
 taken for the first time at the trial. Van Deu- 
 sen V. OTiarter Oak Ins. Co., 1 Abb. Pr. (N. S.), 
 349; s. c, 1 Rob. (N. Y.), 55. 
 
 7. Papers purporting to be preliminary 
 proofs of loss were served, but no magistrate's 
 certificate accompanied them, as required by 
 the conditions of the policy. Insurers did 
 not object to pay the loss on that ground, but 
 because they did not insure a chandler's shop. 
 Seld, it was too late upon the trial to urge the 
 defect. Brown v. Kings GoiuUy Fire Inn. Co., 
 81 How. Pr., 508. 
 
 8. The amount of the claim was definitely 
 stated in the preliminary proofs, certified and 
 sworn to by two appraisers, but there was not 
 the required magistrate's certificate. Held, 
 the defendants could not insist upon the de- 
 fect for the first time at the trial. Bilbroughv. 
 Metropolis Ins. Co., 5 Duer, 587. 
 
 9. Insurer objected that the magistrate who 
 signed the certificate was not neai-est the place 
 of loss, but did not object to the form of the 
 certificate. Ileld, insurer was precluded from 
 urging any defect as to the form of the certifi- 
 cate. The policy was dated at Portland, 
 Maine, stipulated: "Insured shall in ca«e of 
 loss procure a certificate under the hand of a 
 magistrate or notary most contiguous to the 
 place of the fire ; but the statute law of the 
 state required insured to procure the certifi- 
 cate of a magistrate or notary, not limiting 
 his place of residence. Held, the terms of 
 the contract were in conflict with the statute, 
 and the latter must govern the rights of the 
 parties. Bailey s. Hope Ins. Co., 56 Me., 
 474. 
 
 10. Insured furnished within the time lim- 
 ited, preliminary proofs of loss. They were 
 received without objection, April 18th. There 
 was no magistrate's certificate annexed, but 
 instead of it there was the certificate of a repu- 
 table citizen. In respect to this the agent stated 
 it would be all right. Held, a question for the 
 jury, whether the magistrate's certificate had 
 
 l)een waived. Taylor v. Roger Williams Ins. 
 Co., 51 N. H., 50. 
 
 11. Stipulated: "Insured shall produce a 
 certificate of the nearest magistrate or notary, 
 certitying the amount of the loss, etc." A 
 certificate to that effect was delivered to the 
 agent of insurer, but the magistrate was not 
 the nearest to the place where the fire oc- 
 curred. It was received by insurer's agent 
 and no Direction stated; upon the trial, in- 
 surer was allowed to prove that the magistrate 
 who gave the certificate was not the nearest 
 magistrate to the place where the fire occurred. 
 Held, error: that a failure to object to it on 
 that ground specifically was a waiver of the 
 defect. Byrne v. Rising Bun Ins. Co., 20 Ind. 
 103. 
 
 12. Property was destroyed June 3, 1867. 
 Notice of the loss was given. The certificate 
 of the magistrate which accompanied the 
 proofs was not made by the nearest justice, 
 but no intimation was given of any defects or 
 objections to the proofs until March 1, 18G8. 
 Held, it was waived. KiUips v. Putnam Fire 
 Ins. Co., 28 Wis., 472. 
 
 13. The policy required a certificate of the 
 loss to be procured from the magistrate, 
 notary or commissioner nearest the place of 
 the fire. Hull, a j ustice of the peace, occupied 
 the adjoining building as a store and resi- 
 dence. The fire communicated from the in- 
 sured premises to Hull's buildiug, which was 
 consumed, together with a quantity of bis 
 personal property. Hull refused to give the 
 certificate, and made complaint liefore a 
 magistrate against the plaintiff, charging him 
 with the crime of setting fire to the premises, 
 thereby causing the destruction of Hull's 
 property. Insured procured a certificate from 
 the next nearest magistrate. Hdd, Hull was 
 concerned in the loss, and the next nearest 
 justice was the proper person to make the cer- 
 tificate. Wright v. Hartfm-d Fire Ins. Co., 36 
 Wis., 532. 
 
 14. A few days after the fire, the attorney of 
 insured saw the company's secretary, and 
 asked whether a compliance with all tlie con- 
 ditions of the policy would be required, and 
 received answer, "Yes, to the very letter." 
 Afterwards he submitted to the company an 
 aflSdavit of the insured, showing the amount 
 of the loss, his books of accounts, and a receipt 
 for money paid by insured for goods pur- 
 chased in New York. The president of tlie 
 
 507 
 
1135 
 
 PROOFS OF LOSS. 
 
 1136 
 
 Of the magistrate's or surgeon's certijScate. 
 
 company was asked whether the company 
 would pay the claim, to which he replied, 
 " No, we will not pay it." A notary's certifi- 
 cate of the loss was not tendered to the com- 
 pany until it was offered in court upon the 
 trial, and then the company refused to receive 
 it because it had not been presented sooner. 
 Held, if the insurers intended to insist on tliat 
 defect in the preliminary proofs, they should 
 have apprised the insured that they considered 
 them defective in that particular, or have put 
 their i-efasal to pay on that ground ; if they 
 failed to do so, their silence was a waiver of 
 the defect, and the preliminary proofs were to 
 be treated as though they were perfect. JFire- 
 men's Ins. Oo. v. Grandall, 33 Ala., 9. 
 
 15. Insured was bound to furnish the com- 
 pany with a certificate made by the magistrate 
 or notary public residing nearest to the place 
 where the loss occurred, showing the kind and 
 value of the goods destroyed by fire, and the 
 amount of the claim. ' The local agent was 
 immediately notified of the fire, and he sug- 
 gested delay until the arrival of insurers' ail- 
 justing agent, who came, made an examina- 
 tion of the books of the insured, took the aflS- 
 davits of the parties, expressed himself satis- 
 fied, and stated that nothing more was required 
 of insured. Insurers refused to pay the Toss, 
 because insured had a quantity of gunpowder 
 in stock at the time of the fire. A magistrate's 
 certificate was never made. Held, it had been 
 waived by the acts of insurers' agents. PhcBnix 
 Ins. Go. e. Taylor, 5 Minn., 492. 
 
 16. The policy required insured to produce 
 the certificate of a magistrate nearest the fire, 
 not concerned in the loss, showing that he 
 had examined the circumstances attending it, 
 knows the character and circumstances of in- 
 sured, and verily believes that insured has 
 without fraud sustained loss, etc. The loss 
 occurred after the death of insured, and his 
 administratrix made preliminary proof, but 
 the certificate did not comply precisely with 
 the requirements of the policy, for it stated, 
 " That the estate of the insured had sustained 
 loss," etc. Held, a sufficient compliance. Oer- 
 mania fire Ins. Oo. n. Curran, 8 Kan., 9. 
 
 1 7. The policy required insured to procure 
 the certificate of the nearest magistrate as to 
 the amount of the loss; and the defendant 
 pleaded that the nearest magistrate had not 
 given such a certificate. The plaintiff gave 
 some evidence tending to prove that a certifl- 
 
 568 
 
 cate of a magistrate had been sent to the com. 
 pany, but it was not produced. Held, the onus 
 probandi was upon defendant to show that it 
 was not such a certificate as the conditions 
 demanded. Piatt v. Oore District Fire Ins. 
 Co., 9 U. C. C. P., 405. 
 
 18. The magistrate's certificate did not 
 show upon its face that he was not related to 
 the person to whom the loss was made pay- 
 able. Held, no defense to the action. Ketehum 
 ■B. Protection Ins. Co., 1 Allen (N. B.), 136. 
 
 (b) When not sufficient. 
 
 19. Stipulated to pay the sum insured to 
 the said M. C, her executors, administra- 
 tors and assigns, in ninety day after due notice 
 and proof of death of the person whose life is 
 hereby assured under the following con- 
 ditions: "That in the opinion of the sur- 
 geon-in-chief of this company the party in- 
 sured did not die of intemperance." Hdd, 
 the plaintiff could not recover without pro- 
 ducing the decision of the surgeon-in-chief or 
 showing a proper excuse for the omission. 
 Campbell v. American Popular Life Ins. Co., 1 
 MacArthur, 246. 
 
 20. Magistrate's certificate not furnished. 
 Application made to two mag4Strates, both re- 
 fused to grant it. Held, no right of action 
 (citing Oldman v. Bewicke, 2 H. Bl., 577 n ; 
 Routledge ■o. Burrell, 1 id., 254; Worsley b. 
 Wood, 6 Term, 710; Scott v. Phoenix Ins. Co., 
 1 Stuart, 354; Mason d. Harvey, 8 Exch., 819; 
 Langel o. Mut. Ins. Co., 17 U. C. Q. B., 534; 
 Leadbetter v. BXn& Ins. Co., 13 Me., 265 ; Mioa, 
 Ins. Co. «. Tyler, 16 Wend., 885 ; Turley t. 
 North 'American Ins. Co., 25 Wend., 374; 
 Rounnage v. Mechanics Ins. Co., 13 N. J., 
 110; Protection Ins. Co. «?. Pherson.5 Ind., 
 417; Noonan n. Hartford Ins. Co., 21 Mo., 81; 
 Cornell v. Hope Ins. Co., 15 Martin, 233). 
 Johnson v. PJusnix In». Co., 112, Ma.ss., 49. 
 
 21. Insurers refused to pay, giving as their 
 reason that they believed that insured was 
 attempting to defraud. The magistrate's cer- 
 tificate failed to state any amount of loss. 
 The company never pointed out this defect 
 Held, this was no evidence of a waiver of the 
 condition which required the production of a 
 magistrate's certificate, hence insured could 
 not recover. Roumaije «. Mechanics Ins. Co., 
 13 N. J., 110; overruled, Basch v. Humboldt 
 MutiMl Fire and Marine Ins. Co., 35 id., 420. 
 
1137 
 
 PROOFS OF LOSS. 
 
 1138 
 
 Of estoppel. 
 
 22. Policy required a certificate of loss, un- 
 der the hand of a magistrate or notary most 
 contiguous to tlie place of the fire. John Mc- 
 Connell, at the time of the fire an acting jus- 
 tice of the peace, resided and kept his office 
 within thirty rods of the place. He was nei- 
 tlier concerned in the loss nor related to the 
 insured. Wm. A Stewart, another justice of 
 the peace, resided and kept his oflSce a mile 
 and a half from the place. "McConnell refused 
 to give a certificate, but Stewart gave one to 
 the insured. Hrfd, nothing short of McCon- 
 nell's certificate would authorize a recovery. 
 Protection In». Co. v. Pherson, 5 Ind., 417; 
 Moody V. JEtna Ins. Co., 2 Thomp. (Nova Sco- 
 tia), 173. 
 
 23. Stipulated: "Insured shall procure a 
 certificate under the hands of the minister and 
 church wardens, together with some other 
 reputable inhabitants of the parish not con- 
 cerned in the loss, importing that they were 
 well acquainted with the character and cir- 
 cumstances of the insured ; that they knew, or 
 verily believed that tlie insured had sustained 
 loss, etc." The plaintiff averred that the goods 
 were burned without fraud on his part; that 
 he applied for said certificate, but that the de- 
 fendants, by false insinuations and promises 
 of indemnity, prevailed on the minister and 
 church wardens to refuse to sign. Held, he 
 could not recover. Soutledge v. BurreU, 1 H. 
 BU 254. 
 
 24. Stipulated: "Insured shall procure a 
 certificate under the hand of the minister and 
 cliurch wardens, together with some other rep- 
 utable inhabitants of the parish not concerned 
 with the loss, importing tliat they are well ac- 
 quainted with the character and circumstances 
 of the insured, and know, or verily Ijelieve 
 that tlie person insured, by misfortune, and 
 without fraud or evil practice, sustained loss, 
 etc." There was no allegation in the declara- 
 tion that this certificate was obtained, and there 
 was no plea upon the record relying upon the 
 want of it Held, judgment must be arrested. 
 Oldmanv. Bewickf, 2 H. Bl., 577, n. 
 
 25. The policy required a magistrate's cer- 
 tificate to state, among other things, that the 
 insured has, by misfortune, and without fraud, 
 sustained loss and damage to the amount 
 which the insured claims to have lost. The 
 certificate furnishetl omitted to state the 
 amount of tlie loss. HM, an absolute defect- 
 ive title, which might be taken advantage of 
 
 in the court of appeals, though no notice bad 
 been given to it in the court below by either 
 party. Scott v. Phoenix Ags. Co., 1 Stuart, 354. 
 
 26. Policy on mill. Stipulated: "Imme- 
 diate notice of the loss shall be given within 
 fourteen days to the agent of the company, and 
 as soon after as possible a particular account 
 of it, signed and verified;" also, "the usual 
 certificate, under the hand and seal of a magis- 
 trate most contiguous to the fire." Tlie fire 
 occurred July 3d. Insured signed a written 
 notice on the 7th, stating the destruction of the 
 mill, that its whole value was $3,400, and ap- 
 pended a magistrate's certificate, which set 
 forth that lie had examined several persons on 
 oath, and he believed " insured had sustained 
 loss to the amount of his insurance and over." 
 On the 10th, defendant's agent wrote to in- 
 sured, stating that the papers sent were not in 
 compliance with the conditions of the fiolicy. 
 On the 20th insured made and delivered an- 
 other paper, in which they set forth that the 
 fire occurred on the night of July 3d by which 
 the mill was destroyed; that it was of the 
 value of $3,400; that it was owned by insured ; 
 that tliere was no other insurance upon it. 
 This was signed and sworn to July 14th, be- 
 fore a justice of tlie peace, who certified that 
 he had made inquiries, and believed the facts 
 set forth in the paper, and that the plaintiffs 
 had, without fraud, sustained loss to the 
 amount tlierein mentioned. His seal was not 
 a£Bxed to the certificate. Held, both certifi- 
 cates were insufficient for not stating the 
 amount of the loss, and the last was insuffi- 
 cient because it had not a seal. The insurers 
 were discharged. Mann v. Wegtem Ins. Co., 
 19 U. C. Q. B., 190. 
 
 27. The magistrate's certificate did not 
 state the amount of the loss which insured 
 had sustained on the property insured. Held, 
 no recovery could be allowed. Langel «. 
 Mutual Ins. Co., 17 U. C. Q. B., 524. 
 
 lY. Of estoppel. 
 
 (a) When injured is estopped hy his 
 proofs of loss. 
 
 1. The preliminary proofs of death stated : 
 " Insured came to his death by a pistol sliot 
 fired by a pistol in his own hand through the 
 heart." The court instructed the jury to dis- 
 regard that statement. HM, error, for every 
 
 669 
 
1139 
 
 PROOFS OF LOSS. 
 
 1140 
 
 0£ estoppel. 
 
 admission is to be taken as an entirety of the 
 fact wliicli maizes fur tlie one side witli tlie 
 qualifications which limit, modify or destroy 
 its effect on the other si>Ie. The whole ad- 
 mission, therefore, should have been taken to- 
 gether (revereing the case, 2 Dil. Cir. Ct., 
 154), S. C. U. S. Muiiuxl Benifit Life Ins. Co. 
 o. Newton, 32 Wall., 32. 
 
 (b) When, insured is not estopped hy 
 his proofs of loss. 
 
 2. Stipulated: "The company will pay the 
 insurance within ninety days after due notice 
 and proof of death." In the printed forms 
 furnished by the company for making prelim- 
 inary proof, there was one headed medical 
 proof of loss and cause of death, which was 
 made by Dr. White, who stated that deceased 
 had been sick five months, and that he died 
 January 31, 1871, of pulmonaiy consumption. 
 If this were true, it would have tended to 
 show that at the time the policy was reinstated, 
 deceased was suffering from a disorder that 
 caused his death. In making out the plaint- 
 ifi^s case, the court, at the request of defen- 
 dant, required her to put in evidence the 
 whole preliminary proof, which included 
 the affidavit made by Dr. White; and the 
 defendant requested the court to charge, 
 that on the evidence presented by the plaintiff 
 she was not entitled to recover, which the 
 court refused. Held, no error, because the 
 circumstances or causes of death were not re- 
 quired in the prelimin.iry proofs under any 
 of the provisions of the policy; that piece 
 of evidence was brought into the case at the 
 request of the defendant and against the olj- 
 jection of the plaintiff, hence plaintiff was 
 not concluded by the statement of Dr. White, 
 the proof of death being ample without it-. 
 Day V. Mutual Benefit Life Ins. Oo. 1 MacAr- 
 thur, 598. 
 
 3. Stipulated : " Insured shall, in their pre- 
 liminary proofs, state the actual cost of their 
 articles." Meld, insured was not bound by 
 the actual cost stated in the proofs of loss, but 
 might show that the goods were in fact worth 
 a larger sum. Hoffman v. uMltna Ins. Co., 1 
 Rob. (N. T.), 501 ; s. c, 32 N. Y.,405 ; 19 Abb. 
 Pr., 325. 
 
 4. The policy described the building as oc- 
 cupied by the insured. The preliminary 
 
 proofs of loss stated that it was occupied by 
 the insured and another person. Hdd, insured 
 was not estoppe.I ly the proofs of loss. Ho 
 might prove what the fact really was. Parme- 
 lee V. Hoffman Fire Ins. Co., 54 N. T., 193; 
 McMaater n. Insurance Go. of North America, 
 55 id., 222; s. c, 64 Barb., 536. 
 
 5. Insured omitted in tlie preliminary proofs 
 and notice of loss certain goods destroyed in 
 the fire. Held, he was not precluded from 
 showing on the trial that they were lost, and 
 he was entitled to recover for them if they 
 were omitted inadvertently. JEtna Ins. Co. v. 
 Stevens, 48 111., 31. 
 
 6. Held, when the assured is forced to 
 bring suit for his loss, he has a right to prove 
 and recover for the goods lost, notwithstand- 
 ing some of them were not stated in the pre- 
 liminary proofs of loss; that the preliminary 
 proofs of loss as to the amount of the claim 
 stated in them, are binding only in cases where 
 the insurer settles promptly. Commercial Ins. 
 Co. V. Huchberger, 52 111., 464 
 
 7. Stipulated: "To be void if the insured 
 shall become so far intemperate as to impair 
 his health or to induce delirium tremens." 
 The policy required notice and proof of death, 
 but did not require the insured to set out 
 in the proof of death the facts and circum- 
 stances attending it ; but the proof was accom- 
 panied by an affidavit in which the medical 
 attendant stated that while the policy was in 
 force the insured was suffering from delirium 
 tremens fiom drink. Held, when an apparent 
 ground of defense is declared by a separate 
 and unnecessary narration of circumstances, 
 and the proofs required by the policy are com- 
 plete without tliat narration, it cannot be said 
 that the party has failed to comply witli the 
 condition imposed upon his right to litigate 
 his claim. Connecticut Mutual Life Ins. Co. 
 V. Siegel, 9 Bush, 450. 
 
 8. The insured died before the fire hap- 
 pened, and his administratrix preferred the 
 claim and made proofs of loss. In her exam- 
 ination upon oath, provided for under the 
 policy, she stated that she had sold the prop- 
 erty. Held, she was not estopped to show that 
 the property had not been sold, and that what 
 she designated a sale was, in fact, only an 
 agreement to sell, which was not effected at 
 the time the fire occurred. Oermania Firt 
 Ins. Go. e. Ourran, 8 Ean., 9. 
 
 570 
 
1141 
 
 PROOFS OF LOSS. 
 
 1142 
 
 Of evidence — Of copies of oti.or policies — Of the invoices, books, papers, etc. 
 
 Y. Of evidenci» 
 
 (a) When the preliminary proofs are. 
 
 1. Preliminary proofs were furnislied in 
 compliance with the conditions. Held, in- 
 surers could read them to the jury, and then 
 introduce contradictory evidence, Howard v. 
 City Fire Ins. Co., 4 Deni >, 503. And after 
 proof has been given to contradict them, the 
 insured cannot read them on rebuttal, because 
 they are not evidence for him. Ibid. 
 
 2. The ledger and cash book of insured 
 were admitted in evidence, showing original 
 accounts of sales. They were delivered to in- 
 surers as parts of the preliminary proofs. 
 Held, legitimate testimony. Jone» o. Meckar^ 
 ie* Fire Ins. Co., 36 N. J., 29. 
 
 3. The preliminary proofs were admitted 
 in evidence without objection. Held, they 
 then became evidence as to the amount of tlio 
 loss. Moore o. Protection Ins. Co., 29 Me., 97. 
 
 4. Upon the trial insured gave in evidence 
 his preliminary proofs of loss ; the record did 
 not show that the paper was introduced for 
 any particular purpose. Held, it was to be 
 considered by the jury like all other testimo- 
 ny, and effect must be given to all that it 
 proved or tended to prove. North American 
 Fire Ins. Co. v. Zaenger, 63 HI., 464 
 
 (b) When the prelvmirMry proofs are 
 not. 
 
 5. The court permitted the schedule, afiBda- 
 Tits and statements of the plaintiffs, which 
 constituted the preliminary proofs, to go to 
 the jury as prima fade evidence of the num- 
 ber and quality of the goods. Held, error. 
 They were not to be used as evidence, except 
 for the purpose of showing compliance with 
 the condition which required such papers to 
 be made. Commonwealth Ins. Co. v. Bennett, 
 
 41 Penn. St, 161 ; Lycoming Ins. Co. v. Sehreffler, 
 
 42 id., 188; 8. c, 44 id., 269. 
 
 6. The preliminary proofs of loss are evi- 
 dence that insured has compliwi with the 
 condition, requiring him to make and deliver 
 them ; they are not evidence of the amount of 
 the loss. Nemmark v. Liverpool and London 
 Ins. Co., 30 Mo., 160. 
 
 7. The preliminary proofs of loss were 
 offered and read by the plaintiff to the jury. 
 EM, error, notwithstanding the court in- 
 
 structed the juiy to regard them as evidence 
 only of a compliance with the condition re- 
 quiring such proofs to be made and delivered 
 (citing La Fayette, B. & Miss. R. R. v. Winslow, 
 66 111., 219). 111. S. C. Lycoming Ins. Co. v. 
 JSubin, 8 Chi. Leg. News, 150. 
 
 8. The preliminary proofs of loss are not 
 evidence of ownership, amount of loss, nor of 
 the values stated in it. SoutTiem Insurance 
 and Trust Co. v. Lewis, 43 Ga., 587. 
 
 Yl. Of copies of othek policies. 
 
 1. The claimant was required by the terms 
 of the policy to state what other insurance 
 has been made upon the property insured. 
 He stated it was not insured since the policy 
 was taken out. Held, sufficient. Lounsbury 
 D. Protection Ins. Co., 8 Conn., 459. 
 
 2. Stipulated: "Insured sliall give imme- 
 diate notice of loss, and as soon as possible 
 render a particular account of it under oath, 
 and state whether any, and what, other insur- 
 ance has been made on the property, giving 
 copies of the written portions of all policies 
 thereon." In the proofs of loss the insured 
 stated there was three hundred dollars other 
 insurance, namely, a policy believed to be 
 dated January 37, 1863, No. 6,736, in the Me- 
 chanics Mut Ins. Co. of Milwaukee; that the 
 insured was unable to furnish a written copy, 
 because the policy had been mislaid, and the 
 company had no record of the written part. 
 Held, no recovery could be had. Blakeley 
 V. Phcenix Ins. Co., 20 Wis., 205. 
 
 3. One of the conditions required proofs of 
 the loss to be made, and delivered to the com- 
 pany within a time certain after the loss shuuld 
 occur, together with a copy of the written part 
 of the policy. Plea: copy of the written part 
 of the policy had not been delivered to the 
 company. Held, delivery of the written part 
 of the policy was not a condition precedent. 
 Richardson «. Canada Farmers Mut. Ins. Co., 
 16 U. C. C. P., 430. 
 
 VII. Of the invoices, books, papees 
 
 AND TOtJCHEES OF INSURED. 
 
 1 . The case did not show when the request 
 was made for duplicate invoices; there was 
 no evidence that certified copies of invoices 
 were required. Held, the court did not err in 
 refusing to tell the jury that if the insured 
 
 571 
 
1143 
 
 PROOFS OF LOSS. 
 
 1144 
 
 Appraisement of damages. 
 
 neglected to produce duplicate invoices before 
 tlie commencement of the action, no right 
 to recover existed. Insurance Companies v. 
 Weideg, 14 Wall., 375. 
 
 2. On schooner from Kew York to a port 
 in North Carolina, thence to Port Antonio and 
 Ano'tta Bay, Jamaica, valued. Stipulated: 
 " If upon a regular survey she shall be de- 
 clared unseaworthy by reason of her being 
 unsound or rotten, or incapable of prosecuting' 
 her voyage for that cause, insurers shall not 
 be bound." On the voyage from North Caro- 
 lina, she encountered heavy weather, and could 
 not prosecute it further, without great repairs, 
 which could not be had at Port Antonio, and 
 if they could have been had, they would have 
 cost more than she would liave been worth. 
 She was condemned, and sold for a very small 
 sum, which was received by the insured and 
 credited to the insurers. There was no proof 
 of survey. Held, the insured was bound to 
 produce it as part of the preliminary proof. 
 ffaf B. Marine Ins. Co., 4 Johns., 133 ; s. c, 
 Anthon's N. P., 23; overruled, 8 Johns., 164. 
 
 3. The insurers are entitled to the papers or 
 letters, or true copies thereof, which pertain 
 to the loss or to the claim of the insured. 
 Lawrence ®. Ocean Ins. Co., 11, Johns., 245, n. 
 
 4. Stipulated: ''The insured shall, if re- 
 quired by the insurers, produce his books of 
 accounts and other vouchers, in support of 
 his claim, and permit extracts or copies of 
 them to be made^ and, until such request shall 
 be coinplied with, the loss shall not be pay- 
 able. Insured was required to produce his 
 bills of purchases, to which he replied, that it 
 was impossible to do so; that he had found 
 only a few bills; that he had since found 
 others. He did not produce any of them, 
 refusing to do so under advice of counsel. Held, 
 he could not recover; that this case is diflfereut 
 to Bumstead v. Dividend Mut. Ins. Co., 3 
 Kern., 81. Jube v. Brooklyn Fire Ins. Co., 28 
 Barb., 412. 
 
 5. The evidence did not show that insured 
 liad documentary evidence in their posses- 
 sion touching the nature and extent of the loss. 
 Held, until that was proven no objection could 
 be sustained to the plaintiflf s recovery on the 
 ground that they had not furnished invoices 
 and documents. Foster v. Jackson Ma/rine Ins. 
 Co., Edm. (S. C. N. Y.), 290. 
 
 6. Conditioned that insured should pro- 
 duce his books of accounts and other vouch- 
 
 572 
 
 ers. They were consumed in the fire. Bdd, 
 he was thereby excused. Mechanics Fire Ins. 
 Co. V. Nichols, 16 N. J., 410. 
 
 7. Stipulated ; " The parties insured must- 
 when required, make proof of loss by dcclar. 
 ation or aflSdavit, before the nearest magistrate, 
 and by producing their invoices and books of 
 account, and all other vouchers as shall be 
 reasonably requested." Held, a request to 
 produce vouchers, for the mere purpose of 
 annoyance, was not reasonable, and insured 
 was not bound to comply with it. But of this, 
 the jury were the judges, for it was a question 
 of fact, exclusively. Cameron v. Times and 
 Beacon Fire Ins. Co., 7 U. C. C. P., 334. 
 
 8. Stipulated: "Insured shall, within a 
 month after loss, deliver to insurers as partic- 
 ular an account of it as the nature of the case 
 will admit, and make proof thereof by pro- 
 ducing his books of acc'ounts and other proper 
 vouchers, and shall give such further explana- 
 tions as shall be necessary; and until these 
 shall be done, the loss shall not be payable." 
 Insurers required certain invoices, which in- 
 sured refused to produce, although within his 
 power. Held, he could not recover. Cinquel. 
 lars V. Equitable Ins. Co., 15 U. C. Q. B., 143; 
 s. c, id., 246. 
 
 9. Stipulated: "A particular account of 
 the claim shall be delivered within thirty 
 days after the loss, verified by the aflSdavit of 
 the insured, and by his account Ivioks and 
 other proper vouchers." Plaintiflf delivered 
 his affidavit, stating generally the value of the 
 goods saved and destroyed, and a book con- 
 taining statement of goods sold, made partly 
 from invoices and memory, not verified by 
 books of accounts, or the vouchers wiiich 
 he had. Held, not a compliance witii the 
 stipulation. Orates v. Niagara Hist. Mut. 
 Ins. Co., 25 U. C. Q. B., 127; Scott v. ThtSame, 
 id., 119; MvJxey e. Cote Dist. Mut. Ihs. Co., 
 id., 424; Banting v. Niagara Hist. mut. Ins. 
 Co.. id., 431. 
 
 YIII. Appeaibement of damages, 
 
 1. Stipulated: "The sound value and the 
 damaged value of the goods insured shall be 
 ascertained by persons mutually appointed." 
 Insurer had the right to take the whole or any 
 part of the property at the value appraised; 
 and the loss was not payable until sixty days 
 after compliance with all conditions men- 
 
1145 
 
 PRO RATA — PROXIMATE CAUSE OF LOSS. 
 
 1146 
 
 Negligence. 
 
 tioned. Meld, when insured delivered to the 
 company an inventory of the goods burned or 
 iigured, he did all that he was bound to do; 
 it was not incumbent on him to move further 
 in the matter; if the insurers wanted an ap- 
 praisement tliey should Itave insisted upon a 
 compliance with the condition. Commercial 
 Ins. Co. V. Sobinson, 64 III., 265. 
 
 2. Stipulated: "A survey shall be held by 
 competent persons, mutually chosen, as soon 
 as possible after any accident shall happen, 
 and, if she be found worthy of repairs, no 
 abandonment shall be made unless with in- 
 surer's consent. If, on survey, she shall be 
 found and declared unseaworthy, on account 
 of being unsound, rotten, or indipable of pros- 
 ecuting her voyage on the same account, in- 
 surers shall not be bound to pay the amount 
 insured or any part thereof." Plea : no survey 
 was made. Held, a bar to the action. Hamil- 
 ton V. Montreal Ins. Co., 23 U. C. Q. B., 437. 
 
 IX. Questions foe the juey. 
 
 1. Stipulated: "Insured shall make and 
 deliver as particular an account of the loss as 
 the nature of the case will admit." The state- 
 ment delivered was general. It did not specify 
 the different articles consumed. Held, if in- 
 sured could have made a particular statement 
 and did not, no recovery could be had ; but 
 the jury were to determine whether it was 
 within the power of insured to give a detailed 
 statement. Franklin Fire Ins. Co. v. Updegraff, 
 43 Penn. St., 350. 
 
 2. The jury are the judges whether the 
 notice of loss was given forthwith, and 
 whether the particulars of the loss were given 
 as soon as possible, for both terms mean with 
 due diligence. Edwards v. Baltimore Fire 
 Ins. Co., 3 Gill, 176. 
 
 3. The insured offered to pay a portion of 
 ,the claim; but did not object to the fact that 
 
 the nearest magistrate had not signed the cer- 
 tificate of the loss. Subsequently, while the 
 parties were in treaty for an adjustment, ob- 
 jection was made on the ground that the cer- 
 tificate was not such as the conditions of the 
 policy required. Held, the court had not the 
 right to determine, as matter of law, that in- 
 surer had waived the proper certificate; the 
 question of waiver was to be determined by 
 the jury, as matter of fact, upon the evidence 
 submitted to them. Noonan v. Hartford Fire 
 Ins. Co., 21 Mo., 81. 
 
 4. Whether there is a waiver of preliminary 
 proofs of loss depends upon the facts and cir- 
 cumstances of the case. Charleston Insurance 
 and Trust Co. v. Neve, 2 McMullen, 237. 
 
 X. Geneballt. 
 
 1. Mere silence cannot be construed into a 
 waiver of the preliminary proofs of loss; if 
 the company makes no objection to their suf- 
 ficiency, and no request for further particulars, 
 that does not amount to a waiver; but if a re- 
 fusal to pay is put upon grpunds other than 
 defects in the preliminary proofs, that operates 
 as a waiver. Keenan v. Missouri State Mutual 
 Ins. Co., 12 Iowa, 126. 
 
 2. Whether there is a waiver of preliminary 
 proofs depends upon the facts and circum- 
 stances of the case. Charleston Insurance awi 
 Trust Go. V. Neve, 2 McMullen, 237. 
 
 PRO RATA. 
 
 (See Fbxisht; BBursuBANCi!.) 
 
 PROXIMATE CAUSE OF LOSS. 
 
 I. Negligence. 
 
 (a) WJien the acts of insured are a de- 
 
 fense. 
 
 (b) the acts of the insured a/re no 
 
 defense. 
 
 (c) the acts of the master, crew or 
 
 agents are a defense. 
 
 (d) the acts of the master, crew or 
 
 agents are no defense. 
 
 II. What is pkoximate cause. 
 
 III. Of the distinction between negli- 
 
 gence AND design. 
 
 IV. What is gboss negligence. 
 
 I. Negligence. 
 
 (a) WTien the acts of insured are a 
 defense. 
 
 1. On steamboat. Owner was master. He 
 assigned the policy to R., for whose use suit 
 was brought. While racing, insured took a 
 barrel of turpentine, put it in front of the fur- 
 
 573 
 
1147 
 
 PROXIMATE CAUSE OP LOSS. 
 
 1148 
 
 Negligence. 
 
 nace, and used it on the wood and coal to in- 
 crease steam. Fire communicated witli the 
 barrel, and the vessel was burned. Held, such 
 misconduct as released insurers, notwithstand- 
 ing the jury found specially tliat the master's 
 act was not willful. Citizens Ins. Go. v. Marsh, 
 41 Penn. St., 386. 
 
 2. Policy against accidents. Insured care- 
 lessly put his arm out of the window of the 
 car in which he was sitting, and while in that 
 position the accident happened. Held, the in- 
 jury did not result from the dangers common 
 to passengers, but from the position in which 
 he had needlessly and carelessly placed his 
 arm ; and was produced by his own fault, and 
 therefore deprived him of all right to compen- 
 sation. Morel V. MiHsissippi Valley Life Ins. 
 Co., 4 Bush, 535. 
 
 H. The master of an American vessel going 
 to Havana, agreed with the plaintiff to carry 
 to that port certain jewelry, and in case of cap- 
 ture to claim them as his own, it being the 
 practice among privateers to exempt the prop- 
 erty of tlie master from capture. In order to 
 effectually-BTask the property, he agreed to put 
 it in his own chest, hence the goods were not 
 named in the manifest and clearance. No 
 representations were made to insurers. By 
 the same vessel the owner inclosed a bill of 
 lading to his consignee at Havana. On being 
 captured, the master claimed the goods as his, 
 but the bill of lading, found on the vessel, led 
 to a discovery of the truth. Held, insurer had 
 a. right to expect eveiy proper precaution 
 would be used by the master and insured, to 
 mask the property in tlie way proposed ; that 
 sending the bill of lading by the vessel exposed 
 the properly to the very danger which the 
 mask was intended to cover; that the master 
 was to be treated as the agent of insured, for 
 whose acts insured was responsible, and his 
 ' fault or misconduct was not chargeable against 
 insurers. Himely v. Stewart, 1 Brev., 209. 
 
 (b) When the acts of the vnsv/red are 
 no defense. 
 
 4. A loss occasioned by the fault and negli- 
 gence of the insured, their servants and agents, 
 without fraud or design on the part of insured, 
 is a loss within the policy. Oolunibian Int. 
 Go. V. Lawrence, 10 Pet, 507. 
 
 5. Tlic insured may recover, notwithstand- ' 
 574 
 
 ing the fire is communicated from one of his 
 own buildings In process of erection (the pol- 
 icy not prohibiting the rebuilding); but the 
 insured is bound to use reasonable care to 
 guard against accidents. Toung v. Washing, 
 ton G'lunty Mutual Ins. Go., 14 Barb., 545. 
 
 6. Policy against injuries caused by acci- 
 dent while traveling by public or private con- 
 veyances for transportation of passengers. In- 
 sured attempted to jump on an omnibus while 
 it was in motion; he succeeded in getting 
 upon the steps in the rear, but, unable to 
 maintain his footing, slipped and fell. Held, 
 the contract of insurance is not subject to tho 
 rule which deprives a party of compensation 
 for an injury caused by his own negligence or 
 want of due care. Champlln d. Railway Pas- 
 senger Ass. Co., 6 Lans., 71. 
 
 7. On a stock of drugs, chemicals and other 
 merchandise, hazardous and extra hazardous. 
 The insured placed about five gallons of oint- 
 ment, an inflammable compound, upon the 
 stove to warm, which ignited and caused tho 
 fire. Held, if the evidence established the fact 
 that it was usual for druggists to mix ami 
 melt ointment on their stoves,, as was done iu 
 this case, insurers must be deemed to be ac- 
 quainted wilh the business, and to have iu- 
 cluded it in the risk (citing Harper d. Albany 
 Ins. Co.. 17 N. Y., 194j. And in the absence 
 of fraud, insurers must be held liable for the 
 loss. Brown d. Kings County Fire Ins. Go., 
 31 How. Pr., 508. 
 
 8. Mere negligence on the part of insured 
 is no defense to the action, though it was the 
 direct cause of the fire. Johnson v. Berkshire 
 Mutual Fire Ins. Co., 4 Allen, 388. 
 
 9. Insurers asked the court to instruct, that 
 the plaintiff was bound to exercise all the 
 care, skill and prudence usually employed by 
 persons of that description engaged in mer- 
 cantile business, and that for want of any 8uch_ 
 care, skill and prudence in conducting the' 
 business, the plaintiff alone must suffer; but 
 the court refused. Held, no error, for the care- 
 lessness or negligence of the plaintiff or his 
 servants was no defense to the action, unlesH 
 fraud or design is connected with it Huck. 
 ins v. People's Mutual Fire Ins. Co., 31 N. H., 
 238. 
 
 10. Insured does not forfeit the benefit of 
 his contract by failing to repair defects which 
 have arisen since the execution of the policy, 
 unless he is guilty of gross negligence in re- 
 
1149 
 
 PROXIMATE CAUSE OF LOSS. 
 
 1150 
 
 Negligence. 
 
 spect to it. WAiteliurtt v. FayetteaiUe Mut. 
 Ins. Go., 6 Jones' Law, 352. 
 
 1 1. The defendant requested the court to in- 
 struct the jury : " If the Are was caused by, or 
 resulted from, the gross carelessness or gross 
 misconduct of the insured, they could not re- 
 cover." Held, it was properly refused, for the 
 word " gross" is sometimes treated as equiva- 
 lent to fraud, and should not be used without 
 properly explaining its import; that negli- 
 gence is one of the risks assumed by the in- 
 surer. MueOer v. Putnam Fire Ins. Co., 43 
 Mo., 84. 
 
 12. The eighth paragraph of the answer al- 
 leged that the plaintiflf negligently stood by 
 at the time of said loss and permitted said 
 property, embraced in said policy, to be con- 
 sumed and destroyed, and did not make any 
 reasonable exertion to prevent said Are, or to 
 preserve said property or any part thereof. 
 Held, that it had no legal meaning. Aurora 
 Fire Ins. Co. v. Johnson, 46 Ind., 315. 
 
 13. The defendant requested the court to 
 instruct: " That the defendant need not prove, 
 beyond a reasonable doubt, that the fire was 
 intentional on the part of the plaintiflf; and if 
 the jury believe from the evidence that plaint- 
 iff willfully, negligently or carelessly allowed 
 the property to be destroyed by Are so as to 
 procure the insurance thereon, or that any 
 portion of the stock was removed before the 
 fire, they must find for the defendant." Held, 
 the latter part of the instruction was neither 
 law nor common sense ; that if the instruction 
 was not correct entirely, the court had a right 
 to reject it altogether. Kansas Ins. Co. t. 
 Berry, 8 Kan., 159. 
 
 14. That the loss was caused by the mere 
 negligence of insured is no defense to the ac- 
 tion, ahaw V. Bobberds, 6 A. & E., 75 ; 1 N. & 
 P., 279 ; 6 L. J. (N. S.). K. B., 106. 
 
 15. The defendants pleaded that the fire 
 was caused by and through the carelesness, 
 negligence and improper conduct of the 
 plaintiffs and their servants. Held, no defense 
 to the action. Jameson v. Boyal Ins. Co., 7 
 Irish Law R., 126. 
 
 (c) WTien acts of the master, crew or 
 agents are a defeTise. 
 
 1 6. The vessel was partly laden with pow- 
 dtr; a candle was carelessly put by the bin- 
 
 nacle, which took fire and communicated with 
 the powder; she was blown up and lost. Held, 
 it was not barratry; and when fire is occa- 
 sioned by the fault of the master or mariners, 
 the loss is not to be borne by the insurer. 
 Qrim v. Phcsnix Ins. Co., 13 Johns., 451 ; over- 
 ruled, Mathews ». Howard Ins. Co., 11 N. 
 Y., 9. 
 
 1 7. Loss by capture from the negligence of 
 the master in leaving the ship's register on 
 shore. Held, the insurer was discharged. 
 Cleveland v. Union Ins. Co., 8 Mass., 308. 
 
 18. Where the loss was caused by the mas- 
 ter's gross ignorance and want of judgment, 
 the insurer was discharged. Biggin v. Pa- 
 tapsco Ins. Co., 7 H. & J., 279. 
 
 19. " On corn laden on two flatboats, Louis- 
 ville to New Orleans, against the perils of the 
 rivers, fires, enemies, jiirates, rovers, assailing 
 thieves, and all other perils, losses and mis- 
 fortunes, which shall come to the damage 
 thereof, according to the true intent and mean- 
 ing of said policy." The boats were both 
 made fast at an apparently safe place; the 
 night was calm, and the river falling; all 
 hands retired to rest, leaving no watch. About 
 five o'clock in the morning the ci'ew being 
 awakened, found one of the boats siuking 
 rapidly. She went down so quickly that the 
 hands escaped with difficulty, and were un- 
 able to ascertain the cause. The court in- 
 structed : " If the jury were satisfied that 
 those in charge of the boat used due care to 
 ascertain that the place of landing was a safe 
 oue, it was not indispensable to the plaintiflfs 
 right to recover, that a waking watch should 
 have been kept." Held, it should have been 
 left to the jury to ascertain, as a fact, if the 
 loss resulted from the negligence of the crew. 
 For insured warrants that those persons he 
 employs shall be careful and diligent, and 
 that everything shall be done, within the reach 
 of ordinary human agency, to prevent loss. 
 Lodwicks D. Ohio Ins. Co., 5 Ohio, 433; Howell 
 Cincinnati Ins. Co., 7 id., pt. 1, 276; Fulton 
 V. Lancaster Ins. Co., id., pt. 2, 5 ; overruled, 
 Perrin s. Protection Ins. Co., 11 id., 147. 
 
 20. The question between the parties was, 
 whether there had been a total loss. It ap- 
 peared that when she sailed she was worth 
 £2,200; that the night following she went 
 ashore, seventy miles west of Alexandria. 
 Held, any evidence tending to prove what a 
 prudent owner would have done under the 
 
 575 
 
1151 
 
 PROXIMATE CAUSE OF LOSS. 
 
 1152 
 
 Negligence. 
 
 circumstances, if uninsured, was admissible; 
 and that therefore the insurers were at liberty 
 to prove any facts which tended to show that 
 the judgment exercised by the master was en- 
 titled to no respect; and a state of mind 
 superinduced by intoxication was a fact with- 
 in that limit. Alcock v. Royal Exchange Aas. 
 Co., 13 Q. B., 292. 
 
 21. On cargo. "ExceiJting loss arising 
 from and caused by ice, theft, barratry or rob- 
 bery, or from want of ordinary care and skill, 
 such as is necessary and proper on such voy- 
 ages and in said navigation ; excepting, also, 
 all losses arising from or caused by the said 
 vessel's being unseaworthy, or unduly or im- 
 properly laden on the voyage aforesaid." De- 
 fendant pleacied that by the want of ordinary 
 care, skill, knowledge, attention and seaman- 
 ship on the part of the master, and others in 
 charge of her, and from ignorance of the 
 channel and navigation of the river St. Law- 
 rence on the part of the said master and others 
 in charge of her, and not from any of the 
 perils and misfortunes of said navigation, she 
 was run against and upon an island in the said 
 river; and by means of such stranding, the 
 said cargo was damaged. Held, a valid de- 
 fense to the action. Oillespie v. British ATner- 
 ican Fire and Life A»s. Co., 7 U. C. Q. B., 108. 
 
 22. On cargo. " Loss caused by the negli- 
 gence of the master or crew in navigating the 
 vessel excepted." She was stranded ; and the 
 court told the jury, if the stranding was caused 
 either by gross mismanagement, ignorance or 
 negligence on the part of tlie master or crew, 
 the plaintiff could not recover. Held, the in- 
 struction was correct. Oillespie b. British 
 American Fire and Life Ass. Co., 7 U C. Q. B., 
 108. 
 
 (d) WTien the acts of the master, crew 
 or agents are no defense. 
 
 23. On profits, at and from Philadelphia to 
 Gibraltar. While she lay at Gibraltar, and 
 before the cargo was discharged, she took fire. 
 The evidence tended to show that it might 
 have been extinguished and the cargo saved, 
 if the master and crew had acted with proper 
 diligence. Evidence was also given tending to 
 show that the fire originated from the careless- 
 ness of the master. Held, when the proximate 
 cause of the loss is a peril insured, the insurer 
 is liable, although the remote cause was the 
 
 S76 
 
 negligence of the master and mariners. Pa- 
 tapsco Ins. Co. v. Coulter, 3 Pet., 222. 
 
 24. " Perils of rivers, flre, enemies, pirates, 
 assailing thieves, and all other losses and mis- 
 fortunes, which shall come," etc., were taken. 
 An explosion took place by which she was 
 lost. Pleas : 1. That it was caused by means 
 of flre negligently and carelessly communi- 
 cated by the officers and crew to gunpowder 
 in the hold. 3. That she was loaded partly 
 with gunpowder; that it was unskillfully and 
 negligently stowed by the officers and crew; 
 that it took flre in consequence of that negli- 
 gence, and caused the explosion. To which . 
 the insured demurred. Held, if the fire was 
 communicated and occasioned by the direct 
 agency of the master and crew, intentionally 
 done with a barratrous purpose, it was not a 
 loss within the policy; that if the loss was 
 remotely caused by the negligence, careless- 
 ness or unskillfulness of the master or crew 
 (not such as would amount to a breach of the 
 implied warranty that there should be a mas- 
 ter and crew of sufficient skill and competent 
 to navigate her), then the loss was within the 
 policy. Waters v. Merchants Louisville Ins. 
 Co., 11 Pet., 213; 1 McLean, 275. 
 
 25. The imprudence of the master cannot 
 aflect the rights of the insured. Sperry v. 
 Delaware Ins. Co., 2 Wash. C. C, 243. 
 
 26. That the loss occurred by the careless- 
 ness of the servants or tenants of the insured, 
 is no defense to the action. Chtes v. Madison 
 County Mut. Ins. Co., 5 K. T., 469 ; 3 Barb., 73. 
 
 27. The insured is bound no further than to 
 furnish a competent master and crew at the 
 beginning of the voyage, without implicitly 
 warranting that they will be diligent to the 
 end of it ; and although the maxim respondeat 
 superioi- is applicable to the responsibility of 
 a master for the acts of his servants, yet the 
 insured, so long as he acts with fidelity, shall 
 recover for the loss, notwithstanding the re- 
 mote cause of it was the negligence of the mas- 
 ter and crew. American Ins. Co. o. Insley, 7 
 Penn. St., 323. 
 
 28. The loss was caused by a peril insured 
 against, the consequence of improperly leaving 
 a large quantity of freight on the deck of the 
 barge. Held, the negligence of the servant of 
 tlie insured was no defense to the action. Pha- 
 nix Fire Ins. Go. v. Cochran, -51 Prnn. St., 143. 
 
 29. The negligence of the insured or his 
 workmen is no defense to the action for loss. 
 
1153 
 
 PROXIMATE CAUSE OF LOSS. 
 
 1151 
 
 Negligence. 
 
 Williams v. New England Mutual Fire Ins. Co., 
 31 Me., 219. 
 
 30. If the cargo insured was damaged by 
 perils of the sea, the insurer is liable, notwith- 
 standing it was not properly stowed, for the 
 insurer is liable when the proximate cause of 
 the loss is a peril insured against, though tlie 
 remote cause is negligence of the master and 
 mariners, because the insurer may be subro- 
 gated to the rights of the insured, and so com- 
 pel the ship's owner to answer for the negli- 
 gence of his servants. Georgia Insurance and 
 Trust Go. V. Dawson, 2 Gill, 365. 
 
 31. " Permission to keep one barrel of ben- 
 zine or turpentine in tin cans, and one-half 
 barrel of varnish, for use." Insured were not 
 in the habit of allowing barrels of benzine or 
 turpentine to remain on their premises for a 
 time longer than necessary to empty them. A 
 barrel of benzine was carried into the store, 
 a syphon inserted into the bunghole, and the 
 process of emptying into a tin can com- 
 menced. The weather being moist, the liquid 
 vaporized rapidly. A workman with a lamp, 
 searching for a leak, approached within six 
 feet of the barrel, an explosion resulted and 
 started the fire which consumed the premises. 
 Held, the insurers were liable for the loss. 
 Maryland Fire Ins. Go. v. Whiteford, 31 Md., 
 219. 
 
 32. The negligence or misconduct of the 
 master or crew does not relieve the insurer, if 
 the loss is caused by a peril insured against 
 If the misconduct is willful and fraudulent, so 
 that it amounts to barratry, that excuses the 
 insurer, unless the policy includes the risk of 
 ban-atry. Firemen's Ins. Go. v. Powell, 13 B. 
 Mon., 311. 
 
 33. The defendant oflFered evidence tending 
 to show that the flre was caused by the negli- 
 gence of the plaintiff's agent, with intention 
 to defraud the insurers. Held, inadmissible, 
 for the negligence of the insured himself, un- 
 less coupled with fraud or design, would be 
 no defense to the action (citing Phillips on 
 Ins., 632; Patapsco Ins. Co. o. Coulter, 8 Pet., 
 222; Columbian Ins. Co. v. Lawrence, 10 id., 
 507 ; Waters «. Merchants Louisville Ins. Co., 
 11 id., 218: McManus t>. Cricket, 1 East, 106; 
 Foster s. Essex Bank, 17 Mass., 479 ; Ware v. 
 Barataria c& L. Canal Co., 15 La. (O. S.), 170; 
 Gillardet v. Demarica, 18 id., 490.) Henderson v. 
 Western Marine and Fire Ins. Go., 10 Rob. 
 (La.), 164. Nor was the evidence admissible, 
 
 37 
 
 though it was admitted that the agent was 
 insured on property in the same premises, for 
 it did not appear that the plaintiff here was 
 privy to that fact. IMd. 
 
 34. The loss was caused by an explosion of 
 her boilers. Held, the negligence of those 
 managing the boat could not be used as a de- 
 fense in favor of the insurer. Perrin v. Pro- 
 tection Ins. Co., 11 Ohio, 147. 
 
 35. On steamboat, against loss by fire only; 
 loss by barratry excepted. She came in col- 
 lision with the United States, a boat owned 
 by insured. Both vessels were damaged, took 
 fire and were consumed. Held, insured were 
 entitled to recover, notwithstanding the flre 
 may have been caused by tlie collision, and 
 the collision was caused by the negligence of 
 the persons in charge; for an insurance against 
 loss by fire only embraces losses by fire gen- 
 erally, without regard to the producing cause 
 or causes. Oermania Ins. Go. v. Sherlock, 25 
 Ohio St., 33. 
 
 36. The loss was caused by the presence of 
 aqua fortis, the carrying of which was pro- 
 hibited by act of congress. Held, it was im- 
 material how the tire was produced, whether 
 by mere accident or by the negligence of the 
 oiScers, unless there was fraudulent or bar- 
 ratrous conduct, for the proximate, not the re- 
 mote, 9ause of the loss must be considered in 
 determining insurers liability. Sherlock k. 
 Globe Ins. Co., 1 Cin. Sup. Ct., 193. 
 
 37. That the loss occurred by the negli- 
 gence or misconduct of the officers and crew 
 is no defense to the action, if it docs not 
 amount to barratry. St. Louis Ins. Go. v. Glas- 
 gow, 8 Mo., 713. 
 
 38. The wife of the insured removed a 
 stovepipe which passed through the floor of 
 an upper room and into a chimney, and placed 
 abed over the hole in the floor; forgetting 
 that she had done this, she caused a fire to be 
 built in the stove, which burned bed and 
 house. The policy stipulated that insured 
 would keep the stoves and pipe in proper con- 
 dition. Held, the insured were entitled to re- 
 cover. Mickey v. Burlington Ins. Go., 35 Iowa, 
 174. 
 
 39. Stipulated: "Whenever any alteration 
 shall be made that increases the hazard, so as 
 to increase the premium, the policy shall be 
 void, unless an additional premium shall be 
 given, according to the rate of exposure ; and 
 insurers are not liable for any loss that occurs 
 
 577 
 
1155 
 
 PROXIMATE CAUSE OP LOSS. 
 
 1156 
 
 What is proximate cause. 
 
 in consequence of repairing, finishing, or 
 building additions." A stove was put in use 
 for tlie purpose of drying the plastering in the 
 ball room ; and it was alleged that the care- 
 lessness of the agents of insured caused the 
 fire. IIM, if insured had a right to keep a 
 fire in the ball room, for any purpose what- 
 ever, he could use it for drying the plaster, or 
 any other purpose, and the negligence of his 
 servants, however great in degree, was no de- 
 fense to the action. Troy Fire Ins. Co. v. Car- 
 penter, 4 Wis., 20. 
 
 40. On ship Amsterdam to St. Petersburg. 
 She sailed with a sufficient crew, but was 
 driven, by stress of weather, into Biorkoo 
 Sound, in the Gulf of Finland, and frozen in 
 for the winter. Crew were discharged, and 
 she was left in care of the mate. The master 
 left her, went to St. Petersburg, and settled 
 ship's accounts, intending to return and com- 
 plete the voyage when the season would per- 
 mit. The mate kindled a fire on board, and 
 went aboard another vessel near by, where 
 he remained the night. The loss was caused 
 by the mate's negligence in lighting the fire 
 and failing to see that it was properly extin- 
 guished. Held, the negligence of the mate, 
 was no defense to the action. Busk v. Royal 
 Exchange Ass. Co., 3 B. & A., 73. 
 
 41. On boats belonging to ship and' on pro- 
 duce in said boats, or in any other craft em- 
 ployed in loading the ship during her stay, 
 etc. A sloop (fully laden with sugar for the 
 ship, in charge of the mate and three sailors, 
 part of the ship's crew, and four negro laborers, 
 all of whom fell asleep), ran upon breakers, 
 was beaten to pieces by the sea, and the sugar 
 lost. Held, the loss was within the policy, 
 notwithstanding the remote cause of it was the 
 negligence of the persons employed to navi- 
 gate the sloop. WaXker v. Maitland, 5 B. & 
 A., 171. 
 
 42. The insurer is liable, notwithstanding 
 the loss was remotely caused by the negli- 
 gence of the ship's crew. Bishop v. Pentland, 
 7B. &C., 219; 1 M. & R., 49. 
 
 43. The goods insured were not mentioned 
 in the shii^'s manifest, contrai-y to the provis- 
 ions of the statute. Held, this did not release 
 insurers. Carruthers i. Oray, 3 Camp., 143; 
 15 Kast, 35. 
 
 44. Time policy. The defendant pleaded 
 that though she was lost by perils of the sea, 
 yet such loss was occasioned wholly by the 
 
 578 
 
 wrongful, negligent and improper conduct 
 (not barratrous) of the master and mariners, 
 by willfully, wrongfully, negligently and im- 
 properly (not barratrously) throwing over- 
 board so much of the ballast that she became 
 unseaworthy, and was lost by perils of the sea 
 which otherwise she would have encountered 
 and overcome. Held, the insurer was liable 
 for the consequences of the willful act of the 
 master and crew. Dixon «. Sadler, 5 Mee. & 
 W., 405; 9 L. J. (N. S.) Ex., 48; affirmed, 8 
 Mee. & W., 895 ; 11 L. J. Ex., 435. 
 
 45. Prom London to Sierra Leone, there, 
 and back to London. In consequence of neg- 
 ligent loading she became leaky, was unable 
 to keep the sea, and was run ashore to prevent 
 ship and cargo from sinking. Held, insurers 
 were liable, although the remote cause of the 
 loss was negligence in loading, for the imme- 
 diate cause was perils of the sea. Redman v. 
 Wilson, 14 Mee. & W., 476; 9 Jur., 714; 14 L. 
 J. Ex., 333. 
 
 II. What is feoximate cause. 
 
 1. On cargo of hay. New York to Washing- 
 ton. She was in a tow with other boats going 
 down the Delaware. A heavy gale separated 
 the tug and boats. She went ashore fifteen or 
 twenty miles below Philadelphia, losing her 
 roof and twenty-seven bales of hay. She had 
 fourteen inches of water. It came on very 
 cold and she was frozen in. In five or six 
 days thereafter she broke away from the ice, 
 and drifted several miles down the river. 
 Again she came back in the return tide, and 
 finally broke in the middle and went down in 
 ten feet of water. Held, the gale which sepa- 
 rated her from the tug was the primary cause 
 of the loss. Brown v. St. Nicholas Ins. Co., 3 
 J. & Sp., 231. 
 
 2. The ship encountered sea perils and was 
 driven into a port of necessity, and there 
 seized by the authorities. Held, the seizure 
 was the proximate cause of the loss. Rice o. 
 Homer, 12 Mass., 330. 
 
 3. Insurance on a dwelling house. The 
 tenant's minor son carried a cask of gunpow- 
 der into the attic without the knowledge of 
 the insured, and fired it with a match. The 
 gunijowder exploded, blew the roof off the 
 house and set fire to the bed clothing, charred 
 aud stained some of the woodwork. Held, all 
 the injury to tlie building, whether in the 
 
1157 
 
 PROXIMATE CAUSE OP LOSS — REBUILDING. 
 
 1158 
 
 Of the distinction between negligence and design — What is gross negligence. 
 
 nature of combustion or explosion, or both, 
 were within the terms of the policy. Scrip- 
 ture V. Lowell Mutual Fire Ins. Co., 10 Cush., 
 3-56. 
 
 4. An averment that the loss was caused by 
 perils of Uie sea is satisfied if the proof shows 
 that a peril of the sea -was the proximate 
 cause, notwithstanding the negligence of the 
 master and crew was the remote cause. Amer- 
 iean Ins. Go. v. Insley, 7 Penn. St, 323. 
 
 5. The property was seized by order of a 
 government officer. There was no evidence 
 of its condemnation or forfeiture, and it was 
 subsequently destroyed by fire. Held, insured 
 were entitled to recover. .Keith v. Globe Ins. 
 Co., 53 111., 51S. 
 
 6. She was captured and carried in for ad- 
 judication, but v^as afterwards acquitted. 
 During her detention, she was driven ashore 
 in a violent storm, by which she received 
 great damage. Held, insurers could not de- 
 fend the action on the ground that she had an 
 nnlawful cargo, which was condemned. Bai- 
 ley V. South Carolina Ins. Co., 2 Brev., 354. 
 
 7. On cargo, " warranted free from capture 
 and seizure." She was stranded on a shoal 
 within a few miles of destination. While she 
 lay in the sand, she was seized by the com- 
 mander of the place and the goods were con- 
 fiscated. Held, the proximate cause of the loss 
 was perils of the sea. Hahn v. Corbett, 2 Bing., 
 205; 3 L. J. C. P., 253; 9 Moore, 392. 
 
 III. Of the distinction between 
 
 NEGLIGENCE AND DESIGN. 
 
 1. A loss by the negligence of the insured 
 is not a loss by design, for design imports 
 plans, scliemes and intentions carried into 
 effect Catlin v. Springfield Fire Ins. Co., 1 
 Sumn., 434. 
 
 2. The insurer set up as a defense the will- 
 ful act of the master, done with the conniv- 
 ance of the insured. Held, a negligent act 
 could not be relied upon at the trial, for negli- 
 gence differs from willfulness in that the latter 
 is positive and the other negative. Sturm v. 
 Atlantic Mut. Ins. Co., 6 J. & 8p. (N. Y.), 281. 
 
 3. The insured was the owner of an undi- 
 vided part of the premises insured. His wife 
 intentionally set fire to them, and they were 
 burned. She was Insane at the time, and so 
 bad been for some time prior, but she was 
 
 carelessly left alone on the day the fire oc- 
 curred. Held, not evidence of a degree of 
 negligence which the law deems equivalent 
 to a fraudulent purpose or design ; hence, no 
 defense to the action. Oove ii. Farmers Mutiml 
 Fire Ins. Co., 48 N. H., 41. 
 
 4. The omission to exercise due caution is 
 not negligence in tlie legal sense of the term. 
 West V. Reid, 2 Hare, 249 ; 12 L. J. Ch., 247. 
 
 IV. What is geoss negligence. 
 
 Stipulated : " In case of gross negligence on 
 the part of insured, the policy shall be void." 
 The court told the jury that " gross negligence 
 is the utter disregard of those precautionary 
 measures which men of ordinary prudence 
 would adopt in such a case." Meld, not a cor- 
 rect definition; because gross negligence is 
 the want of that diligence which even careless 
 men are wont to exercise, for he who is only 
 less diligent than very careful men cannot be 
 said to be more than slightly inattentive ; he 
 who omits ordinary cai'e is a little more neg- 
 ligent than men ordinarily are; and "he who 
 omits slight diligence fails in the lowest de- 
 gree of prudence, and is grossly negligent" 
 Campbell v. Monmouth Mutual Fire Int. Co., 
 59 Me., 430. 
 
 QUESTIONS FOR COURT OR JURY. 
 
 (See CouBT and Jubt.) 
 
 RATIFICATION. 
 
 (See CosTaioT.) ' 
 
 II. 
 III. 
 
 REBUILDING. 
 
 Of bights and LiABrLiriEs of rasmiER 
 when he has elected to bebttiij). 
 
 When insubeks shali not bebuild. 
 
 What does not defeat the bight to 
 bebuhiD. 
 
 579 
 
1159 
 
 REBUILDING. 
 
 1160 
 
 Of rights and liabilities of insured when he has elected to rebuild. 
 
 I. Of eights and liabilities of in- 
 
 S0EEE WHEN HE HAS ELECTED TO 
 EEBUILD. 
 
 1 . Stipulated : " Insurers shall hare the 
 right to replace or rebuild the premises with- 
 in a reasonable time, giving notice of their in- 
 tention to do so witliin twenty days after 
 receipt of the preliminary proofs of loss." 
 There were two policies upon the same prop- 
 erty. The premises were destroyed January 
 6, 1857. Both elected to rebuild, but the work 
 of rebuilding was not complete at the time 
 thi3 action was commenced, November 4, 1857. 
 Seld, electing to rebuild converted the con- 
 tract of insurance into a contract to rebuild, 
 according to plans ; and it could be enforced 
 as a building contract, without reference to 
 the amount insured ; that if insurer failed to 
 perform the contract to rebuild, insured was 
 entitled to the damages sustained in conse- 
 quence of the breach of it; tliat the action 
 might be sustained against each insurer sepa- 
 rately or both jointly, and if against one, the 
 other insurer would be liable to his coinsurer; 
 that the measure of plaintifl'^s damages was 
 the ditfercnce, if any, between the value of the 
 building furnished by the insurance company 
 and the value of that destroyed, without refer- 
 ence to the sum insured, or to the fact that 
 there was other insurance upon the premises, 
 or that both companies had joined in rebuild- 
 ing. Morrell v. Irving Ins. Co., 33 N. Y., 429 ; 
 s. c, 3 Am. Law Reg. (N. S.), 404. 
 
 2. Stipulated : " The insurers shall have the 
 right to rebuild, repair, or replace the property 
 insured." Immediately after the loss, insured 
 commenced to rebuild, but within thirty days, 
 the insurers gave notice that they would re- 
 build. Insured refused to permit them, and 
 continued to erect his building. Held, the 
 plainliif could not maintain his action. Beah 
 V. Some Ins. Co., 36 N. Y., 522; s. c, 36 Barb., 
 614. 
 
 3. The defendants undertook to repair a 
 building that had been injured by Are, and 
 made payments to the contractor on the certifi- 
 cate of the insured ; but before all advances 
 and payments were made to the contractor, 
 the plaintiff gave notice to the defendants of a 
 certain defect in one of the walls, at which 
 time the defendants had sufBcient money in 
 their hands for the contractor to make good 
 the defects. Held, the defendants could not 
 
 580 
 
 claim to have been damnified by the plaint- 
 iflps certificate, they were therefore bound to 
 have the defect made good. Myder v. Com- 
 monwealth Fire Ins. Co., 52 Barb., 447. 
 
 4. The building insured was. destroyed by 
 fire, and another was put in its place by insur- 
 er. Held, the insurer was not entitled to any 
 deduction or allowance on the ground that the 
 building erected was new, and that burned 
 was old. Brinley d. NationaX Ins. Co., 11 
 Met., 195. 
 
 5. The insurer had the right to rebuild, and 
 did so at an expense less than the sum insured, 
 and the buildings insured were again con- 
 sumed within the term mentioned in the pol- 
 icy. Held, insurer was liable for the diflier- 
 ence between the sum expended in rebuilding 
 and the sum insured. Trull v. Boxbury Mvt. 
 Ins. Co., 3 Cush., 263. 
 
 6. Insurers elected to replace,'aiid insured 
 gave the security required by the policy No- 
 vember 19th. As soon as the repairs were 
 completed, notice was given and a part offered ; 
 but insured refused to receive on the ground 
 that repairs had been unreasonably delayed. 
 Held, it was a question of fact for the jury tn 
 determine, whether the repairs were made 
 within a reasonable time; if they were not so 
 made, insured was not bound to sue for that 
 failure, but had the right to sue upon the pol- 
 icy. Haskins ii. Hamilton Mut. Ins. Co., 5 
 Gray, 432. 
 
 7. Insurers elected to rebuild, and attempted 
 to do so, but did not complete the repairs. 
 Held, the measure of damage was the differ- 
 ence between the value of the buildings as re- 
 paired and what the value would have been 
 had the repairs been full and complete. 
 Packer v. Eagle Fire Ins. Co., 9 Gray, 153. 
 
 8. Insurers had the right to rebuild, and 
 gave notice that they intended to do so. 
 Held, the contract was an agreement to pay a 
 sum certain, if insurer failed to rebuild ; the 
 effect of the notice of an intention to rebuild 
 did not transform it into an agreement to re- 
 build ; if the company neglected to rebuild 
 in a reasonable time, insured might disregard 
 the notice and sue upon the policy, and he 
 would be entitled to interest and the rental 
 value of the ground during the delay, in ad- 
 dition to the damages properly recoverable 
 under the policy. Home Mutual Fire Ins. Co. 
 v. Garfield, 60 111., 124. 
 
 9. On a wooden building, $2,000. Stipu- 
 
1161 
 
 REBUILDING. 
 
 1162 
 
 When insurer shall not rebuild — What does not defeat the right to rebuild. 
 
 lated: "The insurers shall have the right to 
 rebuild or repair within a reasonable time 
 after damage or loss." Subsequently to the 
 making of the contract, a city ordinance was 
 passed which prohibited, without the consent 
 of the proper authorities, any rebuilding or 
 repairs upon wooden buildings within the 
 limits of the city. The roof of the building 
 insured being completely burned away, in- 
 surers oflfered to repair it; but the authorities 
 refused their consent. Before the fire the 
 building was worth $4,000. It was now not 
 worth f 100. The contract of insurance was 
 renewed after the adoption of the city ordi- 
 nances. Held, by renewing the policy, tlie 
 parties consented to be bound by the laws 
 and ordinances existing at that time, and con- 
 tracted with refoi-ence to them ; whether the 
 city authorities would permit the building to 
 be repaired was a risk insurer assumed, for it 
 was optional with insurers whether they would 
 or would not repair; and, if for any cause 
 they could not exercise that option, they must 
 bear the loss, hence the amount that plaintiff 
 was entitled to recover would be the sum in- 
 sured, because the value immediately preced- 
 ing the Are exceeded that sum. Brady v. 
 Northwestern Int. Co., 11 Mich., 425. 
 
 1 0. Insurers gave notice of an intention to 
 rebuUd. HeUl, a waiver of any defects based 
 on misrepresentation, unless fraud or mistake 
 appeared. Bersehe n. Globe Mut. Ins. Co., 
 31 Mo., 546 ; Bersche c. ,St. Louis Mut. Ins. Co., 
 id., 555. 
 
 11. The plaintiffs elected to reinstate the 
 building, and employed defendant to do the 
 work, who contracted to put the premises in 
 the state in which they were before the fire. 
 The plaintiffs were sued by insured, and the 
 defendant was notified. He was present when 
 the original action was referred lo an arbi- 
 trator, but refused to become a party to it 
 The award was in favor of the insured £120 
 and the costs, taxed at £133. Held, it was for 
 the jury to say whether the defendant here 
 sanctioned the defense interposed to the 
 former action, and whether that defense was 
 reasonable. Verdict for defendant. Times 
 Fire Ins. Co. v. Hawke, 1 F. & P.. 406; 5 H. & 
 N., 935; affirmed, 28 L. J. Ex., 317. 
 
 12. Stipulated: "In every case of loss the 
 company will reserve to itself the right of re- 
 instatement, in preference to the payment of 
 claims, if it shall judge the former course to 
 
 be the most expedient." The defendant pro. 
 ceeded to rebuild the premises, but the com- 
 missioners of sewers, actiug in pursuance of 
 the authority conferred upon them by the 
 metropolitan building act of 1855, prohibited 
 the rebuilding. Held, the case stands as if 
 the policy had been simply to reinstate the 
 l^rcmises in case of fire; that the defendant's 
 undertaking was lawful at the time, and con 
 tinned to be lawful, the fact that it had become 
 impossible was no legal excuse for not per- 
 forming (citing Hall r. Wright, EI., Bl. & El., 
 746). Brown v. Royal Ass. Co., 1 El. & El., 
 853; s. c, 5 Jur. (N. S.), 1255; 28 L. J. Q. B., 
 275. 
 
 II. "When insueees shall not eebuild. 
 
 1 . Proofs of loss were presented May 6th. 
 A general objection was made to them, but no 
 specific defect stated. They were delivered 
 to the local agent. Insurer gave notice of an 
 intention to repair about the middle of June. 
 Hdd, insurer had no riglit to repair or rebuild 
 for they were bound to give notice of tlieir 
 election so to do within thirty days after de- 
 livery of the proofs to the local agent; and 
 were not entitled to credit for the repairs 
 made. Insurance Co. of North America «. 
 Rope, 58 111., 75. 
 
 2. The policy was silent upon the question 
 of rebuilding. Ileld, insurers had not the 
 right to rebuild. Wallace e. Insurance Co., 4 
 La. (O. 8.), 289. 
 
 III. What does not defeat the eight 
 
 TO EEBUILD. 
 
 1. Insurer had the right to replace the prop- 
 erty insured, or pay its cash value. An ac- 
 count of the loss was delivered April 23d, ten 
 days after the fire. Kegotiations tlien com- 
 menced for a settlement. Insurers elected. 
 May 22d, to replace the property. Held, the de- 
 lay did not preclude them from doing so. 
 Sutherland v. Sun Fire Office, 14 C. C. S., 775 ; 
 Stuart, 710; 24 Scot. Jur., 440. 
 
 2. On mills and machinery, with the right 
 to replace f)r pay for all. Insured raised an 
 action to declare the lease ended, and on this 
 being granted, to declare the company bound 
 to pay the loss in money. Held, an order to 
 interdict rebuilding till the right could be 
 decided, would not be granted. Bisset v.Boyal 
 Exchange Ass. Co., 1 S. & D., 175. 
 
 581 
 
1163 
 
 ]{EFEREES. 
 
 1104 
 
 When the cause -will be sent to — Of the referee's findings — When cause sent to another referee. 
 
 REFEREES. 
 
 I. When the cause ■will be sent to. 
 
 II. WILL NOT BE SENT TO. 
 
 III. Of the referee's findings. 
 
 IV. When the cause will be sent to an- 
 
 other referee. 
 
 I. When the cause will be sent to. 
 
 1. In an action upon a policy of insurance, 
 the defendants admitted making it, and their 
 liability for the loss. The defense related 
 merely to the amount of the claim. Held, the 
 jury would be directed to bring in a nominal 
 verdict for the plaintiff, and the case sent to 
 referees to report the exact amount due. 8am- 
 Me V. Mechanics Fire Ins. Oo., 1 Hall (N. Y.), 
 560. 
 
 2. The proof of loss consisted of one hun- 
 dred and forty-five items of goods, consumed 
 by fire, of the alleged aggregate value of 
 $11,127.24, and of forty-nine items of goods 
 saved from the fire, damaged to the extent of 
 $263. Held, a. proper case to be referred un- 
 der section 271 of the Code, the allegations in 
 the answer being insuflScient to raise an issue 
 of fraud (citing Dean o. Empire State Mut. 
 Ins. Co., 9 How. Pr., 69 ; Lewis ■». Irving Fire 
 Ins. Co., 15 Abb. Pr., 140 n; Samble v. Me- 
 chanics Fire Ins. Co., 1 Hall, 160; Mills v. 
 Thursby, 11 How. Pr., 113; Atooha ®. Garcia, 
 15 Abb. Pr., 303). Baichelor v. Albany City 
 Ins. Co., 6 Abb. Pr. (N. S.), 240; s. c, 1 
 Sweeney, 346; 37 How. Pr., 399. 
 
 3. The cause was noticed for trial, and 
 placed on the calendar October, 1862. The 
 defendants set up fraud on the part of the in- 
 sured, alleging that he had claimed for a 
 larger loss than he had sustained. The de- 
 fendants moved that the cause be refeiTed on 
 the ground that the trial would require the 
 examination of a long account. Held, it was 
 proper to refer the cause. Lewis v. Irving Fire 
 Ins. Co., 15 Abb. Pr., 303 n. 
 
 4. The court has the right to order the case 
 before a jury, after hearing has been com- 
 menced before the court. Hoffman v. Western 
 Marine and Fire Ins. Co., 1 La. An., 216. 
 
 5. After one witness had been examined, the 
 court ordered a compulsory reference to an 
 arbitrator. Seld, authorized; but if that were 
 not so, defendant's appearance before the arbi- 
 trator without protest, was a waiver of all right 
 
 583 
 
 to object to the order of reference. Newman 
 V. Niagara Dist. Mut. Ins. Co.. 25 U. C. Q. B., 
 435. 
 
 II. "When the cause will not be sent 
 
 TO. 
 
 The parties have the right to trial by jury, 
 if Insurers defend on the ground of fraud. 
 Levy v. Brooklyn Fire Ins. Co., 25 Wend., 687. 
 
 III. Of the eefekee's findings. 
 
 1. On exceptions to referee's report new 
 evidence cannot be received, nor will the court 
 set aside the referee's findings except for plain 
 mistakes in matter of law or fact. Barton v. 
 Anthony, 1 Wash. C. C, 317. 
 
 2. The report of a referee must be regarcled 
 as a special finding of a jury, and ought not 
 to be set aside unless it is against the clear 
 weight of evidence ; and the preponderance of 
 the evidence must be so great against the find- 
 ing, as to lead to the conclusion not only that 
 injustice has been, but that the finding must 
 have been the result of passion, prejudice, bias, 
 or corruption (citing G-raham on New Trials, 
 453 ; Jackson «. Loomis, 4 Cow., 168 ; 12 Wend., 
 27 ; Diblin v. Murphy, 3 Sandf. S. C, 19 ; Keeler 
 V. Fireman's Ins. Co., 3 Hill., 250 ; Eaton v. Ben- 
 ton, 3 id., 576 ; Collins v. Albany and Schenec- 
 tady R. R., 12 Barb., 492; Lee v. Schmidt, 6 
 Abb., 183). Woodruff v. Commercial Mut. Int. 
 Co., 2 Hilt., 130. 
 
 3. Thecase was referred to an auditor, who 
 made his report, slating the sum he found the 
 plaintiff entitled to recover, but added it was 
 "an estimate not entirely satisfactory, but 
 probably covering the amount of goods actu- 
 ally consumed by fire." Held, an objection to 
 the report when it was offered in evidence up- 
 on the ti'ial was properly overruled, because 
 the court-should have been asked on motion, 
 before, the trial, to recommit the auditor's re- 
 port. Fair v. Manhattan Ins. Co., 112 Mass.. 
 320. 
 
 IV. "When the cause will be sent to 
 
 ANOTHEK EEFEREE. 
 
 The cause was referred, and the court set tlic 
 finding aside, on the groimd that it was against 
 the evidence. Seld, the case must be sent to 
 another referee. Paine v. Agricultural Ins. 
 Co., 5 N. Y. 8. C, 610. 
 
1165 
 
 REFORMATION OF WRITING. 
 
 1166 
 
 When it shall be reformed. 
 
 REFORMATION OF WRITING. 
 
 I. Whex it shall be kkformed. 
 
 II. KOT Efi EKEORMED. 
 
 III. Admiralty has not jurisdiction to 
 
 REFORM. 
 
 IV. Onus tkobandl 
 
 I. When it shall be eefoemed. 
 
 1. If the written instrument does not rep- 
 resent the intention of both parties, or if it 
 fails to represent the intention of either, 
 through accident, mistake, or fraud, it may 
 be set aside, or reformed, as best suits the pur- 
 poses of justice; and this may be done in a 
 court of law as well as in a court of equity. 
 Jruurance Co. v. WiVcimon, 13 Wall., 223; 8. 
 c, 2 Dil. Cir. Cl, 570. 
 
 2. The insured proposed for insurance at 
 three per cent from Liverpool to Cuba, and 
 to Europe tia Falmouth, for orders to dis- 
 charge. The company declined that rate, but 
 suggested that they would take the risk at 
 four per cent. Insured argued against the 
 rate, and the company answered the follow- 
 ing day that they would take the risk, "Eu- 
 rope to Cuba and back to Europe, at three 
 and a half per cent net;" adding to their 
 reply, " It is worth something, you know, to 
 cover the risk at the port of loading in Cuba." 
 Insured accepted the proposition. The pol- 
 icy was written : " At and from Liverpool to 
 port of discharge in Cuba, and at and from 
 thence to port of advice and discharge in 
 Europe." Held, the correspondence consti- 
 tuted a preliminary agreement to insure ; in- 
 sured was bound to read the letters of the 
 company in reply to his own, with care ; but 
 he had a right to assume that the policy 
 would accurately conform to the agreement 
 made, and to rest confidently in that belief; 
 nor was it to be assumed that he scanned the 
 policy with the same vigilance that he di- 
 rected to the letters of the company; that 
 what was implied must be as effectual as 
 what is expressed ; that the policy as written 
 did not conform to the contract; hence equity 
 would interfere and make it conform. Equi- 
 table Ins. Go. t. Ileame, 20 Wall., 494. 
 
 3. Application made by D. 'K. McKay, an 
 insurance broker at Boston, to the Mutual 
 Commercial Marine Ins. Co.. for insurance, 
 
 $10,000 on ship and $5,000 on her freight, 
 which was accepted. Insurer, during the 
 day, sent to McKay for the names of the par- 
 ties to be inserted in the policies, and he re- 
 plied for " McKay, on account of McLimont, 
 and payable to him or order." A policy was 
 delivered, insuring "McKay, on account of 
 McLimont, loss payable to him or his order." 
 At the time the risk was accepted, McKay 
 exhibited to insurers McLimont's letter, which 
 indicated that both McKay and McLimont 
 were acting as agents; but it did not disclose 
 the name of the person for whom they were 
 acting. Neither McLimont nor McKay nad 
 any insurable interest in the property. It 
 belonged to the complainant, who had di- 
 rected a brother of B. R. McKay to procure 
 the insurance. Ileld, when the application 
 for the" insurance was accepted, McKay had 
 the right to stand insured as agent or for 
 whom it might concern ; because if one applies 
 for insurance and makes known that he is an 
 agent only, and the company agrees to write 
 the risk, it must be implied that such words- 
 shall be inserted in the policy as are usual 
 and necessary to make a binding contract; 
 and, if it was usual to insert in policies of in- 
 surance effected by agents, in their own names, 
 a declaration that they were insured as agents 
 or for whom it might concern, which was 
 known to the company and McKay, McKay's 
 mistake in directing the policy to be made for 
 account of McLimont ought to be corrected, 
 and the policy reformed ; that courts of equity 
 possess the authority to correct such mistakes, 
 even to the extent of changing the most mate- 
 rial clauses therein (citing Mott-eux v. London 
 Ass. Co., 1 Atk., 545; CoUett v. Morrison, 9 
 Hare, 103; Phcenlx Fire Ins. Co. v. Gurnee, 1 
 Paige, 278). Oliver v. Mutual Commercial Ma- 
 rine Ins. Co., 3 Curtis, 277. 
 
 4. If by fraud or mistake the policy made 
 and delivered does not agree with the terms 
 of the order that was given for the insurance, 
 the court will treat the order as the contract 
 and the variance itself is evidence of mistake ; 
 but the order will be resorted to so far as it 
 varies from the policy; in aU other respects, 
 the policy will govern. Delaware Ins. Co. v. 
 Eogan, 2 Wash. C. C, 4. 
 
 5. W. applied to P., agent of a number of 
 companies for insurance, on a stock of goods 
 in store, for a period of two months. The 
 premium, according to regulai- rates, on the 
 
 583 
 
1167 
 
 REFORMATION IN WRITING. 
 
 1168 
 
 When it shall be refonued. 
 
 whole amount for the period named, amounted 
 to $60, and was jsaid by W. An application 
 was made in the presence of W., in due form, 
 and was used by the policy clerk in writing 
 the policies, who filled up a policy com- 
 mencing October 22, 1864, to terminate De- 
 cember 22, 1865. The goods were destroyed 
 December 16, 1865. The policy clerk testified 
 that he made the policy by mistake, to expire 
 in 1865; according to the memorandum appli- 
 cation, it ought to have been written to termi- 
 nate December 22, 1864. Held, the court 
 would reform the policy; and upon the facts 
 stated a suit at law which had been brought 
 upon it was enjoined. North American Ins. 
 Co. V. Whipple, 3 Biss., 418. 
 
 6. B. & B., the builders of a vessel, applied to 
 an agent of the insurers, stating that there was 
 due to them from her owner for building her, 
 $12,982.50, which was to be secured by a mort- 
 gage on the vessel, and for which they re- 
 quired insurance for their own benefit. It 
 was agreed that she should be valued in the 
 policy at $60,000, and that she might be in- 
 sured to the amount of $50,000. A policy was 
 made and delivered, insuring A., the owner, 
 on account of himself. " Loss, if any, paya- 
 ble to B. & B., as their interest may appear, 
 balance to him. Valuation $50,000, limit of 
 insurance $40,000." The policy was delivered 
 to B. & B., and laid away, and not until she 
 was lost, nearly a year after its date, did they 
 ascertain the difference between it and the 
 agreement. B. & B. brought this action to 
 reform the writing and to recover the loss 
 according to the agreement. The court below 
 found the facts as alleged, and gave judgment 
 for the plaintitf for the. sum insured. Held, 
 the fact that the policy was actually made and 
 remained in the hands of the plaintiffs, for so 
 considerable a time, was a circumstance to be 
 considered as bearing upon the truth of the 
 allegation only; that if the policy did not fol- 
 low the agreement, the court had power to 
 give, in one action, complete relief Bidwell v. 
 Astor Mut. Ina. Co., 16 N. Y., 263. 
 
 7. Defendant's agent agreed for an insurance 
 upon cargo of lumber at a fixed value, but the 
 rate of premium was to be throe per cent, if 
 she sailed before the tenth of October, and 
 three and a half per cent, if she sailed after 
 the tenth, but before the sixteenth. She sailed 
 on the fifteenth and a policy was forwarded 
 which warranted her to sail on the tenth. The 
 
 584 
 
 agent changed the cipher into a five and de- 
 livered the policy. The company defended 
 on the ground, that the agent had no authority 
 to alter the policy, and this action was brought 
 to reform the writing and for complete relief 
 upon the contract as reformed. Held, the- 
 court had the power to grant relief; that the 
 plaintiff was entitled to judgment for the 
 sum insured. Bunten v. Orient Mut. Int. Co., 
 41* N. Y. (3 Keyes.), 667; s. c, 8 Bos., 448; 1 
 Abb. Dec, 257. 
 
 8. On stock in a maunfacturing establish- 
 ment. Conditioned : " To be void in case the 
 machinery shall be worked in whole or in 
 part over or extra time or at night, without 
 special agreement." Insured brought this 
 action after the loss to recover for it, and to 
 reform the policy, by striking out the con- 
 dition recited; and proved, that application 
 was made for insurance, and that the policy 
 was to be the same as that of the United States 
 Ins. Co., which did not contain the clause 
 above recited ; that the clause recited was not 
 discovered until after the fire. Held, a proper 
 case for reformation and recovery. Van Tuyl 
 V. Westchester Fire Ins. Co , 55 N. Y., 657 ; 
 Weed «. Schenectady Ins. Co., 7 Lans., 452. 
 
 9. The application was made for insurance 
 on a two story and a half frame grist mill ; but 
 the policy described it as a " frame mill house, 
 two and a half stories high, privileged as a 
 grist mill only." The plaintiff claimed that 
 insuring it as a frame grist mill included the 
 machinery, but the defendant denied all lia- 
 bility for loss on machinery. Held, the policy 
 must be reformed to conform to the applica- 
 tion. PhiBnix Fire Ins. Co. v. Oumee, 1 Paige, 
 278. 
 
 10. Action on an open policy. Stipulated: 
 " No shipment considered insured until 
 approved and indorsed on this policy by 
 the company. The indorsement was made 
 from La Union to Panama; amount insured 
 $3,500; rate four and a half; eight boxes in- 
 digo." The policy remained with the defend- 
 ant. The plaintiff's agent testified he exibited 
 to the defendant's president the letter of ad- 
 vice requesting insurance; left it with him 
 together with the bill of lading and invoice, in 
 which was stated, the voyage was to bo via 
 Realejo ; that the president wrote out a memo- 
 randum application which was not signed by 
 the plaintiff or his agent, nor read by them, 
 nor was the indorsement on the policy ever 
 
11G9 
 
 REFORMATION 01' WRITING. 
 
 1170 
 
 When it shall be reformed. 
 
 seen till after the loss. The defend ant's pres- 
 ident testified that he had no recollection that 
 the bill of lading was exhibited; that the 
 application was made binding without stating 
 the name of the vessel or describing the mer- 
 chandise. Held, a court of equity will not 
 interfere to correct a mistake in the writing, 
 unless the mistake is mutual and the writing 
 does not embody the terms as understood by 
 both parties; but that rule does not apply 
 when confidence is reposed by one party in 
 the other, who assumes to prepare the instru- 
 ment; that if the latter either willfully or neg- 
 ligently omits what has been clearly stated to 
 him as the intention of the other party, who 
 relying on its correctness and without par- 
 ticular examination incautiously assents to it 
 under supposition that it conforms to the 
 verbal terms negotiated, the court will decree 
 a reformation. Brioso v. Pacific Mut. Ins. Co., 
 4 Daly, 246. 
 
 1 1. A policy was issued through an agent 
 (not the insurer's) November 6, 1871, was 
 returned about the 15th for it to be made pay- 
 able in case of loss, to C. H. Kingsbury, mort- 
 ■gagee. The insurers canceled it and made a 
 new one to Kingsbury as mortagee. Neither 
 the agent nor Kingsbury had antliority from 
 insured to alter or change the policy ; but Kings- 
 bury retained it for seven months until the fire 
 occurred, and insured was then informed for the 
 first time of the change. Insurers offered to pay 
 the claim if Kingsbury would assign the mort- 
 gage. Hdd, the keeping of the new policy by 
 Kingsbury was a question for the considera- 
 tion of the jury, bring some evidence tending 
 to show an acceptance by the plaintiff; but 
 that the court had no right to rule as a matter of 
 law, tliat it constituted an acceptance; and if 
 the first policy was canceled without the 
 plaintift''s express consent, or under circum- 
 stances which did not imply his consent, the 
 insurers were liable upon it. Bennett v. City 
 Ins. Co., 115 Mass., 241. 
 
 12. Insurer appointed H. an agent to re- 
 ceive and forward applications for insurance, 
 and for that purpose furnished him with 
 blank applications containing questions to 
 which answers were required. H. solicited 
 the owner's agent to insure the property, and 
 read over to him the questions contaiDcd in 
 the application, in answer to which the own- 
 er's agent stated, " No watch on the premises," 
 and it was so written ; but he added, " We have 
 
 a man who watches our annealing promises; 
 his duties require him there all night, from 
 nine to twelve o'clock, but not all the time; 
 during those hours he must come in; he is 
 not a watchman for the building, but will be 
 likely to see if anything is wrong about the 
 buildings, and when the furnaces are run, he 
 is obliged to be there." H. said he should con- 
 sider this man as a watchman till twelve 
 o'clock, and thereupon he erased the word 
 " No," and wrote " Watchman till twelve 
 o'clock." H. was familiar with the premises 
 and had seen a clock in them, and without 
 asking about it, wrote, "A watch clock kept." 
 There was in fact no watch clock and no 
 watchman. Seld, the insured were entitled to 
 have the policy reformed, and to a decree for 
 the sum insured. Malleable Iron Works v. 
 Phoenix Ins. Co., 25 Conn., 465. 
 
 13. F. was the agent of the defendant at 
 New Haven, and E. was agent there for sev- 
 eral other insurance companies. The prac- 
 tice between P. and B. was, if B. met with 
 property which would not be insured by any 
 of the companies he represented, to make ap- 
 plication through P. to some company for 
 which P. was agent, and when the policy was 
 issued P. and B. divided the commissions. 
 This was a general custom among insurance 
 agents well known to the officers of insurance 
 companies generally, and to this company in 
 particular. P.'s companies furnished him 
 with applications, renewals and policies 
 signed in blank, some of which he delivered 
 to B., who represented that he was the agent 
 of P., and as proof thereof, exhibited the 
 blank renewals, policies and applications. 
 W. was mortgagee of certain property, and 
 the mortgagors had become insolvent. S. was 
 directed by W. to procure insurance to pro- 
 tect the mortgagee's interest. He stated his 
 object to B., said that he did not know the 
 situation of the property ; that he understood 
 the title of it was in dispute; requested him 
 to examine it and to procure for the mortga- 
 gee a policy in proper form to insure and 
 protect the mortgage, of which he, S., was no 
 judge himself. B. undertook to do so, and 
 stated to P. the substance of what S. had com- 
 municated to him. P. and B. examined tho 
 property, took measurements of it and made 
 inquiries of persons whom they found on the 
 premises. B. delivered to S. a blank applica- 
 tion, for him to sign, the heading was filled 
 
 585 
 
1171 
 
 REFORMATION OF "WRITING. 
 
 1173 
 
 When it shall be refonued. 
 
 io with the names of S. B. & B. (the mortga- 
 gors), the amount to be insured, premium and 
 the amount of tlie mortgage ; after the name 
 S. B. & B., the words, " or assigns," were 
 added by S., who signed it and delivered It to 
 B., who carried it to P., and together they 
 completed the application. P. made a policy 
 insuring S. B. & B., loss, if any, payable to VV. 
 and delivered it to 8., who took it, supposing 
 that it would insure the mortgagee's interest. 
 Before the policy was made, S. B. & B. made 
 another mortgage to aaotlier person, which 
 was foreclosed, and S. B. & B. conveyed all 
 their equity of redemption to a third person. 
 add, public policy and the protection of the 
 community require that local agents of in- 
 surance companies, in giving aid to appli- 
 cants for insurance, shall be deemed the 
 agents of the insurance companies, and not 
 agents of the applicants, and, therefore, the 
 companies are bound by the acts of local 
 agents whenever that can be done consistently 
 with the evidence and the rules of law; that 
 P. and B. were to be regarded as agents of the 
 insurer in making the preliminary contract to 
 insure; that B. was the agent of the company, 
 for he was employed by P. in pursuance of a 
 general custom which prevailed among local 
 agents, which was known and approved by 
 companies in general and this one in particu- 
 lar ; that the case was to be . regarded as one 
 where there was an agreement to insure the 
 mortgagees on their interest as mortgagees in 
 the property in question ; that it was a case of 
 mutual mistake as to the proper mode of fil- 
 ling out the papers, for the application was 
 made in the wrong name and the policy 
 issued to the wrong person ; they would have 
 been made out right if the agents had known 
 how to make them, and it was immaterial 
 whether the mistake was one of fact or of 
 law; hence the complainants were entitled to a 
 decree correcting the mistakes and prohibit- 
 ing tlie insurer from producing evidence to 
 show that the property described in the pol- 
 icy was not the property of the complainants. 
 Woodbury Savings Bank v. Charter Oak Ins. 
 Co., 31 Conn., 517. 
 
 14. When insurer defends on the ground 
 that tlie ijroperty for which claim is made, 
 does not correspond with that mentioned in 
 the policy, every thing that was said and done 
 between the insured and insurer when the in- 
 surance was made, may be proved in equity, | 
 {)86 
 
 to correct a mistake in the policy, and make it 
 conform to the intentions of the parties; and 
 there is no reason why the same thing shall 
 not be done at law. Moliere v. Penntyhania 
 Fire Iiis. Co., 5 Rawle, 342. 
 
 15. The master chartered her to take a 
 cargo to a place in Cuba, and there at the 
 usual place in the island to take a full and 
 complete cargo for Queenstown or Falmouth 
 for orders. She arrived at St. Jago with coal, 
 and then went to Mansanilla in Cuba, where 
 she loaded with timber and sailed for Fal- 
 mouth for orders. Alter she reached a point 
 where the routes from St. Jago and Mansan- 
 illa unite for Falmouth, she was lost. The 
 policy was written at and from Liverpool to a 
 port of discharge in Cuba, and at and from 
 thence to a port of advice and discharge in 
 Europe. The insured alleged that insurer's 
 president was informed as to the jiarticnlars 
 of the charter, and agreed to makfr the policy 
 for the round voyage. Held, the evidence 
 established tliat the policy was not written ac- 
 cording to agreement ; and therefore it must 
 be reformed. Nutional Traders Bank », 
 Ocean Ins. Co., Qi Me., 519. 
 , 16. The code i)ermits a writing to be re- 
 formed, and a final judgment rendered upon 
 the merits in the same case. Gloie Ins. Go. v. 
 BoyU,%\. Ohio B%., 119; s. c, 1 Gin. Sup. Ct., 
 444. 
 
 17. Insurer's secretary and his brother 
 were agents for foreign insurance companies; 
 they were directed to insure in the companies 
 represented by them; but being unable to 
 place the whole risk in those companies, the 
 sum of $7,500 was placed in this company, and 
 the policy was made to K. The property 
 was owned by K. S. & T. Held, if insurer or 
 its officers understood and intended to insure 
 the entire interest in the property, insured 
 was entitled to have the writing reformed to 
 accord with the intention of the parties, and it 
 should be made to embrace tlie interests of 
 the firm. Keith «. Qlohe Ins. Co., 52 111., 518. 
 
 18. Insured informed insurer's agent that 
 they were commission merchants, doing busi- 
 ness as such in a certain building; that they 
 had on hand and were constantly receiving 
 goods on consignment, on some of which they 
 were making advances, and as to others they 
 were instructed to insure ; that they wanted 
 insurance on the goods consigned. The agent 
 delivered a receipt dated April 15, 1840, for 
 
1173 
 
 REFORMATION OF WRITING. 
 
 1174 
 
 When it shall not be reformed. 
 
 tlie premium to insure $10,000 on their stock 
 of merchandise generally, contained in a cer- 
 tain building occupied by them as a commis- 
 sion house, for one year, the receipt to be void 
 on delivery of the policy, which was delivered 
 April 15, 1840, " $10,000 on their stock of mer- 
 chandise generally, contained in their new 
 three story brick building, occupied by them 
 as a commission house." Tlaintiffs brought a 
 bill to reform the contract, alleging that it was 
 the intention of both parties to make the pol- 
 icy to cover goods on consignment It ap- 
 peared that the clerk of insured received 
 it from iusurei-s at the time it was made, 
 put it away among the papers of insured, 
 and insured never read it or had their atten- 
 tion, called to it till after the Are, November 
 24, 1840. Held; this was not such an ac- 
 ceptance as would preclude the insured from 
 having the writing reformed to meet the inten- 
 tions of both parties. Franklin Ins. Co. v. 
 Hewitt, 3 B. Men., 231. 
 
 19. On schooner "trading between New 
 Orleans and any port in the West Indies, 
 United States or Gulf of Mexico, except Rio 
 Grand or Brassos San Jago." She was lost on 
 a voyage between Matanzas and Savannah, 
 and it was alleged that the policy was written 
 in error or fraud, and that it did not conform 
 to the agreement of the parties. The applica- 
 tion exhibited proved that insured asked 
 permission " to trade to any port in the West 
 Indies, Gulfof Mexico, or United States;" and 
 was marked " accepted." Held, the doctrine 
 of merger was not applicable to the case ; there 
 is no unbending principle of the law of evi- 
 dence which precludes proof of error in reduc- 
 ing a contract to form ; the court will consider 
 as done that which ought to have been done 
 in making out the policy, and will hold insur- 
 ers bound by the agreement thus corrected. 
 Lippihcott V. Insurance Go., 3 La. (O. S.), 
 546. 
 
 20. 8. and A., residents of St. Louis, estab- 
 lished a business at Vicksburg, and appointed 
 B. their agent. He applied to defendant's 
 agent for insurance on the stock; informed 
 the agent that he held and was selling the 
 stock as agent of the owners. Insurer's agent 
 made a policy on the goods in the name of B. 
 A loss occurred and the claim was resisted on 
 the ground that the person to whom the policy 
 was issued had not an insurable interest. 
 Held, the policy should be reformed so as to | 
 
 make il eEFectual upon the property insured. 
 PluBnix Ins. Go. v. Hoffheimer, 46 Miss., 645. 
 
 21. Bates was directed to insure goods on 
 the Mary Galley. He carried the order to S., 
 wlio by mistake wrote the policy on the 
 " Mary," and the defendant subscribed it. The 
 " Mary Galley " was lost. Held, the mistake 
 might be corrected after loss. Batei v. Orab- 
 hajn. Holt K. B., 469 ; 2 Salk., 444. 
 
 22. The person who received the policy did 
 not compare it with the application or " label." 
 Held, this would not prevent the insured from 
 having it made to conform with the applica- 
 tion or label. A paper called " the label " was 
 written " at and from." The policy in its in- 
 troductory or printed part described the voy- 
 age " at and from," but in that part which de- 
 scribed the adventure, the risk was confined 
 to her departure from Fori St. George. Held, 
 also, if the label was made out, or if it was 
 agreed or intended that the adventure should 
 begin from and immediately after her arrival 
 at Fort St. George, the policy should be made 
 to accord with the agreement, and it was 
 proper to send the case to a court of common 
 law upon that issue. Motteux v. London Asi. 
 Co., 1 Atk., 545. 
 
 23. A. and B., contemplating marriage, pro- 
 posed for insurance on their joint lives, the 
 policy to be made payable to the survivor of 
 either. The company's officers drafted it 
 " Payable on the death of either of said assured 
 to the executors, administrators and assigns 
 of the said assured." On the death of the 
 husband, the trustee of his estate claimed the 
 proceeds of the policy. Held, he was not en- 
 titled to it, because the benefits of the policy 
 were to be for the survivor. The intention 
 must prevail, notwithstanding the error in 
 drafting. North British Ins. Co. v. Twmmock, 
 8 C. C. S. (N. S.), 1 ; 37 Scot. Jur., 1. 
 
 24. If one party seeks the execution of a 
 contract which is injieri, the other raay show, 
 if it has not been executed, that it does not 
 conform to the intention of the parties ; but if 
 it has been executed, no defense can be alleged 
 on tliat ground. The party seeking to make 
 any defense for that cause must proceed in 
 equity to reform the contract. Law v. War- 
 ren, Drury, 31 ; s. c, 6 Irish Eq., 299. 
 
 II. "When it shall not be eefoemei>. 
 
 1, Stii^ulated: "Other insurance, whether 
 
 587 
 
1175 
 
 REFORMATION OF WRITING. 
 
 1176 
 
 When it shall not be reformed. 
 
 subsequent or prior, must be notified to the 
 company, and the same indorsed on the pol- 
 icy, or otherwise acknowledged in writing. 
 Insured brought his action at law, and was 
 defeated on the ground that other insurance 
 had been made but was not indorsed on the 
 policy. He now brought this bill, claiming 
 that insurer had notice of it, and that he ought 
 not be permitted to set up the failure to 
 indorse as a defense to the loss. Jleld, the 
 court would not aid the complaiaant, because 
 the evidence on his side was not plain and 
 satisfactory. Carpenter a. Providence Wash- 
 ington Ins. Co., 4 How., 185 ; s. c, 16 Pet., 495. 
 2. Gr. & B. were jointly and equally inter- 
 ested in ship and cargo. G. wrote to S., of 
 Boston, inquiring the rate of insurance on 
 her, and described himself as one of the par- 
 ties interested in the property to be insured. 
 On receiving a reply he wrote: " Your office 
 asks too high a premium for the risk I was 
 inquiring after," and he referred to the copy 
 of an application on the back of his letter, 
 made to a number of offices, for insurance. S. 
 procured this insurance in the name of G. 
 only, to the amount of $10,000 upon the car- 
 go, by a printed form of policy, which did not 
 contain the ordinary clause, •' as well for the 
 benefit of the persons named in the policy as 
 for the benefit of ail concerned." It was de- 
 livered to 8., who ret.^ined it for several 
 months before the loss happened, and before 
 the defect was discovered. Held, interest of a 
 copartnership could not be given in evidence 
 upon an averment of individual interest in a 
 court of law, nor would an averment of a co- 
 partnership interest be supported by a special 
 contract which in terms related to an indiyid- 
 ual interest; that the facts proven were too 
 equivocal to warrant a court of equity to vary 
 this writing; that before a court of equity 
 would conform the writing to the intention 
 of one of the parties, the information given to 
 the other, on which the contract was predi- 
 cated, ought to be very clear; that it was not 
 so in this case, therefore the bill was dis- 
 missed. Q raves v. Boston Marine Ins. Go., 2 
 Cranch, 215. 
 
 3. The defendant issued a certificate of in- 
 surance on property in 189 and 191 South Wa- 
 ter street. The property was destroyed in 187, 
 same street. This bill was brought to reform 
 the writing and make it cover in 187. Held, 
 there was no evidence that the insurance com- 
 
 pany at any time supposed that the property 
 was in 187, hence the bill must be dismissed. 
 Severance v. Continental Ins. Co., 5 Biss., 156. 
 
 4. A policy,existiDg upon the property by 
 its terms permitted other insurance. Plaintiff's 
 agent, before it expired, applied for its re- 
 newal, and defendant made a new policy but 
 omitted to indorse permission to make other 
 insurance. This omission was not discovered 
 by insured till after the fire occurred. The 
 defendant's clerk testified that he was in- 
 structed by his superior not to insert the 
 clause giving permission to make other insur- 
 ance. It also appeared that the plaintiff pre- 
 sented the policy for material changes to be 
 made in it on two different occasions before 
 the fire occurred. Held, it could not be re- 
 formed for the purpose of inserting permission 
 to make other insurance, that to do so would 
 be to impose upon the defendants conditions 
 and terms to which they never assented. 
 McHugk V. Imperial Fire Ins. Co., 48 How. Pr., 
 230. 
 
 5. The plaintiffs in this action sought to 
 have the writing reformed. Held, if the con- 
 tract was made under a mistake of both par- 
 ties as to the description of the premises, it 
 could not be reformed, for the minds of the 
 parties never met New Tork Ice Go. v. North- 
 western Ins. Co., 31 Barb., 72; s. c, 20 How. 
 Pr., 424. 
 
 6. Where insured claims that it was tlie 
 mistake or fault of insurer in failing to ex- 
 press upon the policy jjrior insurance, that in- 
 sured did not read it, but supposed the prior 
 policy was expressed upon it: 2Z«M, a court 
 of law must act upon the agreement as it is; 
 it cannot strike out, change or add anything 
 to it. If relief can be given at all, it must be 
 sought exclusively in a court of equity. 
 Barrett v. Union Ins. Co., 7 Cush., 175. 
 
 7. This bill was filed May 23, 1856, to re- 
 cover a loss which occurred July 17, 1848, 
 which was payable sixty days after jiroof and 
 adjustment. Held, after the remedy at law was 
 barred by lapse of time, insured could not re- 
 vive the claim and recover in equity by prov- 
 ing that the agreement sued upon at law was 
 framed by mistake and was not the contract 
 of the parties. In cases of bills filed to cor- 
 rect mistakes in contracts, the courts will re- 
 fuse to grant relief, as in cases of fraud, if the 
 period of limitation has elapsed, between the 
 filing of the bill and the time that the mistake 
 
1177 
 
 REFORMATION OF WRITING. 
 
 1178 
 
 When it shall not be reformed. 
 
 ■was discovered, or when by the use of due 
 diligence It ought to have been discovered 
 (citing Brooksbank v. Smith, 3 Y. & Coll. Ex., 
 58; Blair v. Bromley, 5 Hare, 542; s. c, 2 
 Phil. Ch., 854; Hough v. Richardson, 8 Story, 
 659). Dodge v. Essex Im. Co., 12 Gray, 65. 
 
 8. Insured untruly stated the amount of 
 the incumbrances. Meld, he could not show 
 that he was mistaken, and thereby claim to 
 have the writing reformed, because to eflfect a 
 reformation of the writing there must have 
 been mutual mistake. Cooper ®. Farmers 
 Ins. Co., 50 Penn. St., 299. Nor was it enough 
 that insurer's agent was mistaken, for he had 
 no authority to make the contract for tlie 
 company. Ibid. 
 
 9. The policy prohibited other insurance, 
 unless consent were given by an indorsement 
 made by the company upon it, and this was 
 an amended petition to reform the writing by 
 striking out the prohibitory clause. It was 
 alleged that at the time the policy was made, 
 the defendant's agent had notice of the insur- 
 ance. The jury found specially that in the 
 treaty or agreement between the insured and 
 insurers' agent, one of the terms or matters 
 intended to be put in writing as a part of, or 
 as an indorsement on the policy, was permis- 
 sion to make other insurance on the property. 
 That there were other insurances on the proper- 
 ty. But the jury did not find specially that this 
 intention was mutual, or that the insurer 
 agreed, or undertook to make the indorsement. 
 Held, before the court would reform the writ- 
 ing, it must be made to appear, by clear proof, 
 that the duty of indorsing the fact of other in- 
 surance was cast upon the company by ex- 
 press agreement, or by general usage amongst 
 insurers. FeWnoes v. Madison Ins. Go., 2 Dis- 
 ney, 128. 
 
 10. A policy of insurance may be reformed 
 when it is demonstrated by legal and exact 
 evidence that there has been a mistake in pre- 
 paring it, which has violated the understand- 
 ing of the parties. But the case must show 
 by clear and unequivocal allegations, that be- 
 fore the policy was written, there was an agree- 
 ment between the parties that risks should be 
 included which were afterward, by mistake or 
 fraud, left out of the written instrument. Da- 
 vega v. Crescent Mut. Ins. Co., 1 La. An., 238. 
 
 11. An application was signed: "On his 
 dwelling house, household furniture therein, 
 barn and shed adjoining, grain therein, on 
 
 his hay and other fodder therein, live stock 
 and farming utensils therein." Insured sought 
 to reform the writing by striking out the word 
 "therein," wherever it occurred in the appli- 
 cation and in the policy. The evidence to 
 support the action was that the application 
 was made through an agent to agree with the 
 terms mentioned in another policy, exhibited 
 to the agent, which covered property anywhere 
 on the farm ; that the application was signed 
 without reading it; that the policy was re- 
 ceived and not read till after the fire. Held, 
 before the writing could be reformed, it must 
 appear that insurer understood the bargain in 
 the same way that insured did, for no reforma- 
 tion could be made unless the writing was 
 contrary to the intention of both parties. 
 Guernsey v. American Ins. Co., 17 Minn., 104. 
 
 la. Policy on the life of the son of the 
 insured. The company refused to pay the 
 claim on the ground that the application had 
 not traly stated the interest of the insured. It 
 seems a statement of the estates and property 
 upon which his interest in his son's life was 
 based had been delivered, but he signed the 
 paper in blank, and the company's agent after- 
 wards wrote into it what he supposed was a 
 correct statement, but which was in fact un- 
 true, and this bill was brought to reform that 
 statement. The agent was examined and testi- 
 fied that he was unable to recollect the partic- 
 ulars stated to him by the plalntiflT of the in- 
 terest in his son's life, or as to the property 
 which he held upon his son's life. He ad- 
 mitted that he filled up the application an 
 hour or two after the plaintiff signed it, but he 
 was unable to state whether the mistake was 
 his, or whether it arose from a misapprehension 
 of what plaintiff told him. Hdd, the plaintiff 
 had not proved that he gave a proper and cor- 
 rect statement to the agent of his interest in 
 his son's life, and therefore the bill was dis- 
 missed. Parsons v. Bignold, 15 L. J. Ch., 
 379; 13 Sim., 518. 
 
 l.S. An agent at London acted for a life 
 insurance company, whose principal place 
 of business was at Edinburg. There was a 
 proposal made to the agent at London for in- 
 surance on the life of A. The agent agreed, 
 that some of the ordinaiy conditions of the 
 company's policies, prohibiting visits to and 
 residence at ports in Africa, should be waived ; 
 but the agent did not communicate to thj 
 company the terms agreed upon between him- 
 
 589 
 
1179 
 
 REINSURANCE. 
 
 IISO 
 
 Valid or void contract of. 
 
 self and the person insured. A policy was 
 made and accepted, wliich did not accord with 
 tlie agreement It appeared however that tlie 
 agent had no autliority to do more than accept 
 proposals and transmit them to the principal 
 office for the contract to be made in Edinburg. 
 Held, this was not a case in which the instru- 
 ment could be reformed, because the principal 
 never understood the contract as the plaintiff 
 contends it should be understood, for the real 
 terms of the agreement were not communi- 
 cated to or adopted by the principal ; hence it 
 was an instrument binding on neither party, 
 and therefore it must be delivered up to be 
 canceled, and the company must refund the 
 premium received upon it. Fowler o. Scottish 
 Equitable Life Ass. Co., 28 L. J. Ch., 235 ; 4 
 Jur. (N. S.), 1169. 
 
 14. Application was made to the insurer 
 to underwrite 501 bundles of bright hoop iron. 
 The application was rejected unless the insur- 
 ance was made free of particular average. 
 Thereupon, the clerk added the letters f, p, a, 
 and it was initialed by the insurers, which in- 
 dicated that they were bound for the risk so 
 initialed. The application being taken to the 
 underwriter's clerk, who drafted policies, he 
 omitted to insert in the policy the clause, 
 "Free of particular average," the letters f, p, a 
 having escaped his attention. The iron being 
 damaged on the voyage, this bill was brought 
 to reform the policy. Held, the slip or appli- 
 cation constituted no evidence of a contract be- 
 tween the parties, that there was none until the 
 policy was executed and delivered; hence 
 there was nothing* to reform. MacKemie v. 
 CouUon, 8 L. R. Eq., 368. 
 
 III. Admikaltt has not jueisdiction 
 
 TO EEFOKM. 
 
 Insured made application for " $3,000 in- 
 surance on brig Union and appurtenances, 
 $8,000 on effects on board said brig from 
 Balem to port or ports in the West Indies, one 
 or more times, for the purpose of selling out- 
 ward and procuring a return cargo; and at 
 and from thence to a port of discharge in the 
 United States. She is bound for Kingston, 
 Jamaica; if not allowed to sell there, will 
 proceed to Cuba." There was nothing in the 
 policy showing she was " bound to Kingston, 
 and if not allowed to trade there, will proceed 
 to Cuba." Both parties supposed the port of 
 690 
 
 Kingston open to American vessels, and 
 neither contemplated illicit trade. She sailed 
 for Kingston, supposing the port was open ; 
 but it was not open, and she was there seized 
 and condemned for illicit trade. Held, while 
 courts of admiralty had jurisdiction over pol- 
 icies as maritime contracts, it had no juris- 
 diction over contracts leading to or prelimin- 
 ary to policies, and therefore admiralty had 
 not the power to make a policy conform to 
 the contract. Andrewi v. Esser, Fire and Ma- 
 rine Ins. Oo., 3 Mason, 6. 
 
 lY. Onus peobandi. 
 
 1. If there is a mistake in the writing pro- 
 fessedly Ijy the contract of the parties, the party 
 complaining against the mistake must allege 
 it and pray affirmative relief to ha^•e the writ- 
 ing reformed (citing Rigsby e. Trees, 21 Ind., 
 227; Rhode ®. Green, 26 id., 83; Conger v. 
 Parker, 39 id., 380). King v. Enterprise Ins. 
 Co., 45 lud., 43. 
 
 2. Insurers urged that they did not intend 
 to insure certain corn and flour, and that if 
 the policy, by its language, included those ar- 
 tides, it was through mistake. Held, the court 
 had the right to. correct the mistake, if any 
 existed, but the burden of establishing the 
 mistake was upon insurers, and they must 
 make it out by the clearest evidence. Wood- 
 ruff «. Columbus Ins. Co., 5 La. An., 607. 
 
 REINSURANCE. 
 
 I. Valid ok void contract op. 
 
 II. Of the RElNStTRERB' DEFENSES. 
 III. PROOF TO BE GIVEN BY REIN- 
 
 ST7RUD. 
 IV DAMAGES, AND OF THE CLAUSE, 
 
 " LOSS IF ANT PAYABLE PRO 
 RATA," ETC. 
 V. Of ABANDONMENT. 
 
 VI. What is not reinsurance. 
 
 I. Yalid oe void conteact of. 
 
 1. W. Ins. Co. insured $3,000 on brig, " lost 
 or not lost, on and from June 6, 1848, for five 
 mouths, with use of globe (Tainpico and Tex- 
 
1181 
 
 REINSURANCE. 
 
 1182 
 
 Of the reinsurcis' defenses. 
 
 as ports excepted). If at sea, at expiration of 
 time risk to continue at same rate." She was 
 then at sea, on a voyage to Havana. P. Mut. Ins. 
 Co. reinsured $1,500 on her at and from Rio 
 to Havana, and at and from thence to Phila- 
 delphia, subject to such risks, valuations, con- 
 ditions and mode of settlement as are or may 
 he assumed or adopted hy W. Ins. Co., for ac- 
 count of wliom it may concern. Held, an in- 
 surable interest can spring from a prior insur- 
 ance; that a time policy as well as any other 
 creates an insurable interest; that the rein- 
 surance need not be for the specific original 
 risk; that while it must not be larger it may 
 be smaller than the original risk ; that the 
 subject matter and the kind of t>erils must be 
 the same. Hence the reinsurer was liable. 
 Philadelphia Ins. Co. v. Washington, Ina. Co., 
 23 Penn. SL, 250. 
 
 2. The P. Mut Ins. Co. made a policy for 
 the benefit of the plaintiff, upon the life of her 
 husband, and U. S. L. Ins. Co. reinsured the 
 same life in favor of the P. Mut. Ins, Co. The 
 plaintiff liad judgment against the P. Mut. 
 Ins. Co., who assigned to the plaintiff the con- 
 tract of reinsurance. Held, the plaintiff' had 
 a good cause of action against the U. S. L. 
 Ins. Co. on that contract, notwithstanding it 
 prohibited any assignment or sale, for that 
 prohibition must be limited to an assignment 
 or sale, prior to the happening of a loss. Lee 
 V. FraUmal Mut. Ins. Co., 1 Handy, 217. 
 
 3. The insurer made a parol agreement to 
 transfer to another for a higher premium the 
 risk he had assumed. Held, it was not 
 such a reinsurance as was prohibited by 19 
 Geo. Ill, eh. 37, sec. 4. Delver d. Barnes, 1 
 Taunt., 48. 
 
 4. Every reinsurance in'England, whether 
 by British subjects or foreigners, whether on 
 British or foreign ships, was void under 19 
 Geo. II, ch. 37, unless the reinsured was in- 
 solvent, a bankrupt, or dead. Andree o. Fletch- 
 er, 2 Term, 161. Nor can there be any return 
 of premium, s. c, 3 id., 266. 
 
 II. Of the eedtsueehs defenses. 
 
 1. Reinsurers can make the same defense 
 and take the same objections against the ori- 
 ginal insurers as the latter might have made 
 in a suit upon the first policy; and the rein- 
 sured is entitled to recover full indemnity 
 from the reinsurer, including costs and ex- 
 
 penses necessarily incun-ed to protect himself 
 and to entitle him to a recovery over against 
 the reinsurer; but the costs and expenses 
 must be incurred in good faith, not wantonly 
 or unnecessarily, in a plain case where there 
 is no reasonable ground of defense. New 
 York State Marine Ins. Go. v. Protection Ins. 
 Co., 1 Story, 458. 
 
 2. February 24, 1851, the A. L. & H. Ins. 
 Co. insured the life of N. for $2,500, one year, 
 witli privilege of another. May 31st, follow- 
 ing, P. L. Ins. Co. reinsured $1,000 on same 
 life for one year, but when that year was to 
 begin or end the policy did not mention. The 
 reinsurer's policy stipulated that it was issued 
 on the faith of a declaration made by the sec- 
 retary of the original insurer, and if that was 
 untrue the policy of reinsurance should be 
 void. That declaration, dated May 31, 1851, 
 stated that the life insured did not exceed 
 thirty years, and " he is now in good health." 
 The life insured expired May, 5, 1851 ; but 
 neither of the parties knew the fact. Both 
 knew that the life insured was on his way to 
 California. A copy of the original application 
 was delivered to the reinsurer before the con- 
 ti'act was made. Held, the writing by itself 
 would be construed as a contract running one 
 year from its date, but that the court must 
 look outside of the paper to ascertain whether 
 it was or was not a reinsurance, from date, 
 for the paper itself did not disclose that fact. 
 If the reinsurer knew all the terms of the 
 original contract, and that it was to run 
 one year from February 24th, and then re- 
 insured for one year without date, it could 
 not be presumed that the year of the reinsurer 
 was to extend beyond the year of the original 
 risk. Therefore, it must be construed to mean 
 a year beginning and ending with the original 
 risk, and the reinsurer was liable, though the 
 life had ceased prior to the making of the con- 
 tract, the time of the loss being immaterial. 
 Philadelphia Life Ins. Co. i>. American Life 
 and Health Ins. Co., 23 Penn. St., 65. 
 
 3. Reinsurance. Stipulated: "Subject to 
 such risks, valuations and conditions, includ- 
 ing the risk of premium note, as are or may 
 be taken by the said Globe Ins. Co." Held, 
 the policy made by the original insurer must 
 control the contract of reinsurance. Common- 
 wealth Ins. Co. v. Globe Mut. Ins. Co., 85 Penn. 
 St., 475. 
 
 4. D. & Co. were insured by the Merchants 
 
 591 
 
1183 
 
 REINSURANCE. 
 
 1184 
 
 Of the proof to be given — Of the damages, etc. 
 
 Mnt. Ins. Co. on 834 bales of cotton, at $200 per 
 bale, New Orleans to Havre, who procured 
 reinsurance. She arrived at the port of des- 
 tination, discharged 325 bales, and took 
 fire, which was extinguished by letting wat- 
 er into the hold, by which the balance 
 of the cargo was damaged. According to the 
 usage and custom at Havre, a statement or ad- 
 justment was made Iiy the Tribunal du Com- 
 merce, by which the loss was declared to bo 
 partial only; but before it was finished the 
 Merchant's Mut. Ins. Co. made large advances 
 to D. & Co. on account of the loss, and then 
 D. & Co. claimed that the loss was construct- 
 ively total, and refused to refund any portion 
 of the advances. Judgment was rendered, by 
 consent, for a constructive total loss against 
 the Merchants Mut. Ins. Co., who brought suit 
 against their reinsurers. Held, the reinsurerj 
 were entitled to make the same defenses and 
 to urge the same objections which might have 
 been made by the original insurers, for rein- 
 surers are only lutblc when the original in- 
 surer is legally liable. The damage and loss 
 sustained by fire before the vessel was entirely 
 unloaded was partial only, and the reinsurer's 
 liability was to be determined upon the basis 
 of a partial loss only, notwithstanding the 
 original insurers had paid a total loss. Mer- 
 chants Mut. Ins. Oo. V. New Orleans Ins. Co., 24 
 La. An., 305. 
 
 5. The action was brought upon a contract 
 to reinsure. The original insurers had not ad- 
 justed nor paid the loss. Held, the reinsurers 
 could make every defense to the action which 
 could be made to an action brought against 
 the original insurer by the person originally 
 insured. Eagle Ins. Co. v. La Fayette Ins. Co., 
 9 Ind., 443. 
 
 III. Of the proof to be given by he- 
 
 INSUEBD. 
 
 ] . The A. Co. became insurers, $3,000 on 
 a stock of dry goods and ready made clothing, 
 and $500 on household furniture. It applied 
 to the B. Co. for reinsurance, $3,000 on the 
 dry goods and clothing. A policy was issued 
 making the word " insure " read " reinsure." 
 In all other respects it was the usual printed 
 policy, requiring proofs of loss, particular ac- 
 count of it, and magistrate's certificate. The 
 A. Co. gave permission to make other insur- 
 ance $3,000, but there was no such permission 
 592 
 
 in the policy issued by the B. Co. The A. Co. 
 paid the loss, and brought this action against 
 the B. Co., having previously transmitted the 
 original notices and proofs of loss delivered 
 by the owner of the property. Held, the orig- 
 inal notices and proofs of loss made by the 
 insured to the A. Co. were suflSclent compli- 
 ance with the conditions requiring proofs of 
 loss to be made by the reinsured. Bowery Fire 
 Ins. Co. V. NeiB Torh Fire Ins. Co., 17 Wend., 
 359. 
 
 2. The reinsured is not obliged, in order to 
 maintain his action against his reinsurer, to 
 show that he has paid the loss. He may at 
 once resort to his action against the reinsurer, 
 or he may wait a suit by the first insured, give 
 notice of it to his reinsurer, and on being sul>. 
 jected to damages, recover them with costs of 
 litigation, against the reinsurers. Hone v. Mu- 
 tual Safety Ins. Co., 1 Sandf., 137; 2 N. Y., 235. 
 
 .S. Reinsurance. Held, before the plaintiff's 
 could recover they must show that the claim 
 which they paid was valid, and that could bu 
 done by showing their contract of insurance, 
 and that the subject insured was destroyed. 
 Tonkers Ins. Co. v. Hoffman Ins. Co., 6 Rob. 
 (N. T.), 316. 
 
 lY. Of the damages and of the 
 
 OI.AUSE, " LOSS, IF ANT, PAYABLE PEO 
 EATA, ETC." 
 
 1. The Lorillard Ins. Co. had an agency at 
 Chicago, and reinsured with the Republic Ins. 
 Co. October 9, 1871, the Lorillard became in. 
 solvent, was dissolved October 23, 1871, and 
 all its effects passed into the hands of a re- 
 ceiver appointed by the courts of the state of 
 New York. The Republic became insolvent 
 at the same time, and was afterwards adjudged 
 a bankrupt. The Republic's policies to the 
 Lorillard provided : " Loss, if any, payable at 
 the same time, and pro rata with the insured." 
 Held, the receiver had the right to come into 
 court here and assert a claim upon the con- 
 tracts of reinsurance; the bankrupt assignee 
 could not reject the claims on the ground that 
 the Lorillard had failed to comply with the 
 conditions of the policies providing for notice 
 and proofs of loss, because the evidence 
 showed that copies of the original proofs were 
 presented to the bankrupt, and no objections 
 were made to them ; if the bankrupt had any 
 doubt as to the authenticity of the copies, it 
 
1185 
 
 RELEASE. 
 
 1186 
 
 Miscellaneous. 
 
 should have demanded the originals; halving 
 failed t(> do so, all objections on that ground 
 must be treated as waived, and the bankrupt 
 -was liable for the losses acyusted by the Loril- 
 lard, even though tlie Lorillard had not paid 
 anything to the persons originally insured. 
 Ex parte Norwood, 3 Biss., 504. 
 
 2. The Pulton Co. insured $10,000 on a su- 
 gar refinery, and reinsured $5,000. Stipulated : 
 " Loss, if any, payable pro rata to tliem at the 
 same time, and in the same manner as they 
 pay." Held, the reinsurer was liable for one- 
 half the original claim, notwithstanding the 
 original insurer had become bankrupt and 
 had paid but a small dividend. Consolidated 
 Fire Jtm. Co. v. Catlums 41 Md., 59 ; Cashau v. 
 Iforthwestem National Ins. Co., 5 Biss., 476. 
 
 3. August 5, 1871, N. A. F. Ins. Co. made a 
 policy to K. — $5,000 on goods — and the de- 
 fendant reinsured one-half the risk. Stipu- 
 lated : " Loss, if any, payable pro rata at the 
 same time with the reinsured." October 9, 
 1871, loss was sustained by the reinsured — 
 14,407.62 — at which time the reinsured be- 
 came insolvent, and subsequently declared di- 
 vidends forty-four per cent., being all that the 
 reinsured could or would ever pay upon their 
 original contract, ffeld, the liability of the 
 reinsurer cannot be aflfected by the insolvency 
 of the reinsured (citing Hone c. Mutual Safely 
 Ins. Co., 1 Sandf., 137; b. c, 2 N. Y., 235). 
 Held, also, that the clause, " Loss, if any, pay- 
 able pro rata and at the same time with the re- 
 Insured," limits the recovery of the reinsured 
 to that proportion of the loss, viz: As the 
 sum reinsured bears to the amount originally 
 insured. Hence, the defendant was liable 
 to the receiver of the reinsured for one-half 
 of the loss sustained by the person originally 
 insured. BlaeJcstone v. Alemannia Fire Ins. 
 Co., 56 N. T., 104; s. c, 4 Daly, 299. 
 
 4. Reinsurance; stipulated: "Loss, if any, 
 payable i»o rata with the reinsured." Printed 
 condition as follows : " Reinsurance ; in case 
 of loss to be settled in proportion as the sum 
 reinsured shall bear to the whole sum covered 
 by the reinsured company." Held, the rein- 
 surer was bound to indemnify the original in- 
 surer in the same proportion that the latter 
 ■was bound to indemnify the persons original- 
 ly insured. Norwood v. Besolute Fire Ins. Co., 
 4J.&Sp.(N.Y.),552. 
 
 5. The Andes Ins. Oo. reinsured the Illinois 
 Mnt Ins. Co. $8,000, being one-third of the 
 
 original risk. Stipulated: "Loss, if any, 
 payable pro rata at the same time and in the 
 same manner as the reinsured company." The 
 reinsured became liable to pay the original 
 insured the sum of $6,000, but being insolvent, 
 settled its liabilities at ten cents on the 
 dollar, and discharged their liability for the 
 sum of $600. Held, the plaintiff's action was 
 for indemnity. It must be founded upon the 
 damnification really existing at the time the 
 action was brought The sum paid in dis- 
 charge of the original insurer's liability must 
 be regarded as the amount of damage sus- 
 tained; that as the original insurer dis- 
 charged the claim for ten cents on the dollar 
 the reinsurer's liability must be measured by 
 the same ratio, namely, $200. Illinois Mut. 
 Fire Ins. Co. v. Andes Ins. Co., 67 111., 362. 
 
 V. Of ABAUDONIIENT. 
 
 No abandonment is necessary from the first 
 insurer to the reinsurer, and the latter is liable 
 for all costs and expenses, bona fde, incurred 
 in defending the claim of the first insurer, 
 with interest, on all that he has expended. 
 Hastie v. DePeyster, 3 Caines, 190, 5. 
 
 YI. What is not eeinstteance. 
 
 On goods by ship or ships. These policies 
 were canceled and others made by other 
 underwriters. The former at ten per cent 
 and the latter at twenty per cent It was un- 
 derstood the first insurers were to make good 
 to insured the difference of premium. Held, 
 the last policies were not reinsurance. Reed 
 V. Baird, Faculty Dee , 1808 to 1810, p. 688. 
 
 RELEASE. 
 
 1. "On cotton gins, $50,000 ; all sums placed 
 at risk under this policy are to be indorsed 
 hereon and policy to be closed in twelve 
 months if not sooner filled." The day after it 
 was made, a loss occurred. Insured applied 
 t<j have it indorsed, which was refused and 
 the claim rejected. Subsequently insurer in- 
 dorsed $29,995.50 on gins. Held, the subse- 
 quent indorsement did not waive or release 
 the previous loss. Carver Oo.v. Manufacturers 
 Ins. Co., 6 Gray, 314. 
 
 5.^^ 
 
Ii87 
 
 REMOVAL OF CAUSE. 
 
 1188 
 
 When it shall be removed. 
 
 2. Insurer's agent accepted a risk, and gave 
 a binding agreement to deliver a policy. 
 The application was sent to the home oflSce, 
 but instead of making a policy the company 
 procured, in the name of the applicant, three 
 policies, for separate sums, from different 
 companies, to cover the risk, and sent them to 
 their agent. But all these policies prohibited 
 other insurance, and not one of the companies 
 who made them had notice of the fact that 
 other insurance was being made upon the 
 same property. After the loss occurred the 
 agent took back the agreement to deliver this 
 company's policy; indorsed upon each of the 
 policies permission to make other insurance, 
 and delivered them to the plaintiff, who made 
 proofs of his loss, which were rejected and 
 the claim denied on the ground that consent 
 to make other insurance upon the property 
 had never been given. Held, the liability of 
 the defendant had become fixed when the 
 agreement for the policy was surrendered; 
 that plaintiff was not bound by the surrender 
 and release, unless they were given for a valu- 
 able consideration; that the policies given for 
 the surrender and release were, in law, worth- 
 less, hence no offer to return them was neces- 
 sary, and the defendant was liable upon the 
 original contract. Dayton Int. Co. «. KMy, 24 
 Ohio St., 345. 
 
 REMOVAL OF CAUSE. 
 
 I. When it bhaix be kemovbd. 
 
 II. NOT BE KEMOVED. 
 
 III. Who mat comfletb the removal. 
 
 I. When it shall be bemoved. 
 
 1. The administratrix sued the insurer in a 
 state court and had judgment. The state law 
 gave the right to either party, after judgment, 
 to a second trial, upon entering into an under- 
 taking, with security, that the party obtaining 
 the second trial should abide by and perform 
 the order of judgment and pay all moneys, 
 costs and damages which might be awarded 
 consequent upon such second trial. The in- 
 surer entered into such an undertaking ; but 
 before the second trial was had, filed a petition 
 to remove the cause to the circuit court of the 
 United States. The circuit court overruled 
 694 
 
 the motion to remand. The administratrix 
 filed an amended declaration in that court, 
 and there the case pended. The administratrix 
 returned to the state crmrt and obtained a re- 
 versal of the order of removal, and the parties 
 appeared in the state court for a second trial, 
 and the case was contested upon the law and 
 the facts, and the plaintiff had » verdict and 
 judgment, which was subsequently aQ^rmed. 
 A writ of error was taken from the supreme 
 court of the United States to the state court. 
 Held, if there was error on the part of the 
 circuit court in overruling the motion to re- 
 mand to the state court, the remedy should 
 have been sought in the federal courts, be- 
 cause the jurisdiction of the state court was 
 at an end until the case should be remanded, 
 by order of the federal court, if that were 
 ever done; that the trial and judgment in the 
 state court before the petition for removal was 
 filed, was not a final trial, and did not take 
 away the right of removal, for when the 
 requisite bond was given and approved, the 
 case stood upon the docket in the state courts, 
 in all respects, as if a new trial had been 
 granted for error or defect in the former trial. 
 Insurance Co. v. Dunn, 19 Wall., 214. 
 
 2. A statute of the state of Wisconsin pro- 
 hibited foreign insurance companies from 
 doing business in that state unless they exe- 
 cuted an agreement to litigate tlieir disputes 
 in the state courts only. This company com- 
 plied with the law, and was sued in a state 
 court for a loss. HM, the statute was an at- 
 tempt to abridge a right secured by the con- 
 stitution of the United States, and as such it 
 was illegal and void; that all proceedings 
 had in the state court, after filing the petition 
 for removal, were coram non judiee. Insur- 
 ance Co. D. Morse, 30 Wall., 445 ; s. c, 49 How. 
 Pr., 314. 
 
 3. The defendants, a corporation of Conndc- 
 ticut, filed the petition and bond to remove 
 the case to the United States court, which was 
 overruled and judgment rendered. Held, all 
 proceedings after the filing of the petition 
 and bond, were coram non judiee. Stevens v. 
 Phoenix Ins. Co., 41 N. Y. (2 Hand), 149 ; s. c, 
 24 How. Pr., 517. 
 
 4. At the time of entering appearance, in- 
 surers filed a petition praying for the removal 
 of the cause to the circuit court of the United 
 States to be held in the district where the salt 
 was pending, and offered good and sufficient 
 
1189 
 
 REMOVAL OF CAUSE. 
 
 1190 
 
 When it shall not be removed. 
 
 surety for entering in the circuit Cdurt, on the 
 first day of the session, copies of the process, 
 etc., and compliance in other respects with 
 the terms of the act of congress. Held, it was 
 error to refuse to order a transfer of the cause. 
 Hobbs V. Manhattan Ins. Co., 56 Me., 417. 
 
 5. The statute law of the state required all 
 foreign insurance companies to appoint an 
 agent to accept service of process, and agreed 
 to waive all right of error by reason of 
 such service or acknowledgment of service. 
 Sdd, the corporation had the right, under the 
 act of congress, to remove the cause from the 
 state to the federal court Knorr o. Home Ins. 
 Co., 25 Wis., 143. 
 
 II. When it shall hot be eemoved. 
 
 1. Insurer was a citieen of the state of New 
 York, and the insured a citizen of Illinnis. 
 The suit was brought in a court of the state 
 of Mississippi. Held, the statute, March 3, 
 1867, authorized a transfer from the slate to 
 the federal court, in those cases only where 
 one party was a citizen of the state wherein 
 the suit was brought, and the other party a 
 citizen of another state ; that as the declariu 
 tion averred the defendant was a corporation 
 created by an act of the legislature of the state 
 of New York, in legal effect that was an aver- 
 ment that the defendant was a citizen of New 
 York, because a corporation can have no legal 
 existence outside the sovereignty by which it 
 was created. The transfer was unauthorized, 
 and the federal court had no jurisdiction. 
 Insurance Oo. c. Francis, 11 Wall., 210. • 
 
 2. Prior to the statue March 3, 1873, the 
 district court of the United States for the mid- 
 dle district of Alabama had the powers of 
 circuit courts and the right to hear and de- 
 cide cases properly removable from the state 
 courts, within the limits of that district; that 
 an order made by the slate court, within that 
 district, directing the removal of a case into 
 the circuit court for the southern district of 
 Alabama, was therefore void, and that court 
 was right in refusing to proceed with it. Ex 
 parU State Ins. Co., 18 Wall., 417. 
 
 3. Action commenced December 88, 1872. 
 Defendant filed a petition January 18, 1873. 
 The necessary affidavit was made as to the 
 citizenship of the parties, and surety offered 
 for the removal of the cause from the state to 
 
 the United States court. The court overruled 
 the motion and defendant answered. Trial 
 was had and judgment entered for the plaint- 
 iff in October, 1873. Under the state statute, 
 application was made fur a second trial, the 
 necessai-y bond required by tlie statute was 
 executed and filed February 19, 1874, defend- 
 ant filed an amended answer to the original 
 complaint, and February 23, 1874, the defend- 
 ant filed a second petition for the transfer of 
 the cause from the state to the United Stales 
 court, complying in all respects with the acts 
 of congress. At the May term, 1874, the court 
 dismisoed the petition for removal, and denied 
 the motion. A second trial was had October, 
 1874, upon which a judgment was rendered 
 for the plaintifl', which was reversed because 
 there was error in dismissing the petition to 
 remove. Copies of the pleadings, etc., were 
 certified to and filed in the United States cir- 
 cuit court August 18, 1875. Held, the juris- 
 diction of the United States court was purely 
 statutory. The act of congress must be strictly 
 followed, or no jurisdiction is obtained. It 
 was the duly of the petitioner to enter copies 
 of the proceedings in the United Slates cuurt 
 within the time limited in the act, namely, on 
 the first day of its then next session, April 7, 
 1874. No action of the slate court in refusing 
 to accept the security and make the order of 
 transfer could take tliat right away, because 
 the right did not depend upon the order of the 
 state court Hence it was now too late to con- 
 fer jurisdiction upon the United Slates court, 
 and the motion to remand the cause to the 
 stiite court was accordingly granted. N, D. 
 Ohio. Olippinger'o. Missouri Valley lAfe Ins. 
 Co., 8 Chi. Leg. News, 155. 
 
 4. A petition which stales that the plaintiff 
 is a citizen of another slate is not sufficient for 
 the removal (>f a cause under the act of con- 
 gress, 1789. It must show Ih-it the plaintiff 
 was a citizen of another state on the day the 
 action was commenced. Peehner «. Phosnix 
 Ins. Co., 6 Lans., 411. 
 
 6. Verdict was rendered against defendaut, 
 a citizen of another slate, in favor of a citizen 
 of this state ; exceptions being taken, it was 
 transferred to the full bench, and judgment 
 given on the verdict. The defendant sued out 
 a writ of review under the statute, and theu 
 filed a petition to remove the cause from the 
 state court to the circuit court of the United 
 States. Held, the act of congress docs not 
 
 595 
 
1191 
 
 REMOVAL OF GOODS. 
 
 1192 
 
 From threatened danger. 
 
 I 
 
 authorize the removal of the cause. Whittier 
 V. Hartford Fire Ins. Co., 55 N. H., 141. 
 
 6. Plaintiff was a citizen of the state of Vir- 
 ginia, and defendant a citizen of the state of 
 New Jersey. Defendant sought to remove 
 the cause from the state to the federal court. 
 jffeM, the court rightly refused the application. 
 Mutual BenejU Life Ina. Go. v. Wise, 34 Md., 583. 
 
 7. The defendant, a corporation of the state 
 of New York, filed its petition to remove the 
 cause to the circuit court of the United States, 
 The statutes of Ohio requii-ed all insurance 
 companies doing business in the state, to file 
 in the office of the superintendent of insurance 
 a written instrument waiving the right to 
 transfer or remove any cause from any court 
 in the state. This law had been fully com- 
 
 ' plied with by the defendant. Held, the cause 
 could not be removed. Overruled by the su- 
 preme court of the United States. Insurance 
 Co. V. Morse, 20 Wall., 445; 2feu) York Life 
 Ins. Co. V. Best, 23 Ohio St., 105. 
 
 8. The insurers filed a petition under the 
 act of congress, 1867, to remove the case from 
 the state to the United States court. Held, the 
 petition must be signed in propria persona, 
 and the bond presented for acceptance at the 
 time the petition is filed. Best ®. Ne^ York 
 Life Ins. Co., 2 Oin. Sup. Ct., 329. And de- 
 fendants, a foreign corporation, after they had 
 filed their petition to remove the cause from 
 the state to the United States court, complied 
 with the general law of Ohio, and obtained a 
 license to carry on the business of life insur- 
 ance in that state; and in compliance with 
 that law, they filed with the auditor of the 
 state an instrument duly signed and sealed by 
 the corporation, by which they waived all 
 claim or right to transfer ft'om the state courts 
 to the courts of the United States, any suit or 
 action brought or pending against them. Held, 
 the statute was not unconstitutional, for the 
 consent under which a foreign corporation is 
 permitted to transact business in any state 
 may be accompanied by such conditions as 
 the state may impose (citing La Payette Ins. Oo. 
 V. French, 18 How., 404; Bank of Augusta o. 
 Earle, 13 Pet., 519; Paul v. Virginia, 8 Wall., 
 168). Ibid. 
 
 9. Insurers, a corporation of the state of 
 New York, made application to transfer the 
 cause from the state to the United States circuit 
 court. The company had complied fully with 
 the state law as to the appointment of agents in 
 596 
 
 the statei The circuit court refused to grant 
 the motion, and a mandamus was asked from 
 the supreme court to compel the court below 
 to order the . transfer. Held, t\\Q corporation 
 was permitted by statute to transact business 
 upon the condition : " That the courts of the 
 state should have exclusive jurisdiction of all 
 cases arising under the act.". Submitting to the 
 provisions of the statute took away the right 
 to transfer the cause. Olens Falls Ins. v. Tlte 
 Judge <yf the Circuit Court ofJaxkson County, 21 
 Mich., 577; Home Ins. Co. v. Davit, 39 id., 238. 
 10. The defendant filed a petition and bond 
 for the removal of the cause from the state to 
 the United States court. No motion was en. 
 tered or made, nor did it appear that the at 
 tention of the court was ever drawn to the 
 question. The parties went to trial without 
 raising any objection. Held, the defendant 
 could not go to trial upon the merits, take his 
 chances upon the results, and then question 
 the jurisdiction. Home Ins. Go. v. Curtis, S. 
 C. Mich., 5 Ins. Law Jour., 120 ; b. c, 33 Mich., 
 402. 
 
 III. Who mat complete the kemotal. 
 
 The defendant procured an order to remove 
 the cause from the state to the federal court, 
 but failed to take a transcript of the record. 
 Held, the plaintiff could bring the transcript 
 on the first day of the term, file it and docket 
 the case (citing McBratney e. Usher, 1 Dil. Cir. 
 Ct, 367;. Hyde v. Insurance Co., 3 id., 535. 
 
 REMOVAL OF GOODS. 
 
 I. Fbom threatened dangbe. 
 
 (a) When insurers are liable for damages 
 
 caused by. 
 (h) not liable for dam- 
 
 ages caused by. 
 
 II. Bt COKSENT of INStTBERS. 
 
 (a) Where tJte policy attache. 
 
 (b) does not attach. 
 
 I. Fkom threatened dangeh. 
 
 (a) When insurers are lAahlefor dam- 
 ages caused hy. 
 
 1. "On goods whilst they shall be and re- 
 main in said building." They were removed 
 
1193 
 
 REMOVAL OP GOODS. 
 
 1194 
 
 By consent of insurers. 
 
 because of a fire in the neighborhood which 
 exposed them to imminent danger, and in the 
 removal, sustained damage. Held, if the dan- 
 ger was such that a prudent man would not 
 have allowed them to remain in the house, 
 and if as much care was used in their removal 
 as a prudent man would have used with re- 
 spect to his own goods not insured, insurers 
 were liable for tlie damage. HoUzman o. 
 FranMin Fire Im. Go., 4 Cranch C. O., 295. 
 
 2. The building in which the goods insured 
 were stored was threatened by fire. A heavy 
 wind carried the sparks and flames upon tlie 
 premises, so that the roof of the rear building 
 was repeatedly on fire. They were moved at 
 an expense of f 115.90. Held, the interests of 
 insurance companies and the public will be 
 subserved by holding the insurer liable for the 
 damage which insured sustained in removing 
 the goods out of the reach of the threatened 
 peril (citing Case c. Hartford Ins. Co., 13 III., 
 676). White e. Republic Fire Ins. Co., 57 
 Me., 91. 
 
 3. The policy required insured to use all 
 possible diligence to preserve the property 
 in case of fire, and stipulated: "That the in- 
 surer would not be liable for loss in conse- 
 quence of a fsulure." They were removed to 
 protect them from threatened loss. Held, the 
 necessity for removal must be governed by 
 the circumstances of the case, and whatever 
 loss or damage was necessarily sustained by 
 removal insurer must bear, the removal being 
 necesary and properly made. Case v. Hart- 
 ford Fire Ins. Go., 13 111., 676. 
 
 4. The insured were bound by the terms of 
 tlie policy to labor for the protection of goods ; 
 they were damaged by flood, mud and water 
 while being removed during a dark night. 
 neld, insurers were liable for the damages. 
 Talamon c. Home and Citizens Milt. Ins. Co., 
 16 La. An., 426. 
 
 5. Stipulated: ""Where property insured iu 
 this company is damaged by removal from a 
 building in which it is exposed to fire, said 
 damage shall be borne by insured and insurers 
 in such proportion as the whole sum insured 
 bears to the whole value of the property in- 
 sured." A portion was wholly destroyed by 
 fire, a part damaged by fire, and a part by re- 
 moval. Held, the damage caused by removal 
 must be borne by the parties according to 
 their respective interests or risks, the share of 
 either bearing the same proportion to the 
 
 whole damage that his interest in the property 
 or risk bears to the whole actual value. 
 Peoria Marine and Fire Ins. Co. s. Wilson, 5 
 Minn., 53. 
 
 (b) When insurers are not liable for 
 damages caused hy. 
 
 6. Insured moved his goods from the prem- 
 ises under a reasonable apprehension of a fire, 
 which was impending, but the fire did not ex- 
 tend to the building from which the goods 
 were removed. Held, the defendant was not 
 liable for the loss, because they were not re- 
 moved in order to save them from burning ; 
 the removal was a prudent precaution under 
 the circumstances of the case. Hillier s. Alle- 
 gheny County Mut. Ins. Co., 3 Fenn. St., 470. 
 
 II. Br CONSENT OF INS0REES. 
 
 (a) Where the policy attaches. 
 
 1. On goods in a store mentioned. Insured 
 intended to remove his stuck into another, 
 building, and procured insurers to indorse the 
 policy " transferred to cover similar iiroperty in 
 another building " named. But the following 
 day, before the goods were removed from the 
 old building, a fire occurred and they were 
 consumed. Held, all parties contemplated a 
 transfer of the risk after the goods should be 
 removed ; that the policy covered them while 
 they remained in the place where they were 
 first insured, and until removed. Kunsee v. 
 American Exchange Fire Ins. Co., 41 N. T. (2 
 Hand), 413; 8. c, 2 Rob., 443. 
 
 (b) Where the policy does not attach. 
 
 2. " On goods in 21, Avenue D." They were 
 removed to 371, Grand street, February 1st, 
 and notice given to insurers March Ist. The 
 company's charter provided that the president, 
 or other person appointed by the board of di- 
 rectors for that purpose, shall be authorized 
 to make contracts of insurance, and the poli- 
 cies issued in pursuance of those contracts 
 shall be signed by the president and counter- 
 sigued by the secretary. The plaintiflf gave 
 evidence tending to show that insurers con- 
 sented to the removal. Held, that to revive 
 the policy was the same as to make a new 
 one, and that could bo done in no way 
 
 597 
 
1195 
 
 REPRESENTATIONS. 
 
 1196 
 
 What are material. 
 
 except by a writing signed by the president 
 and countersigned by the secretary. Spituer 
 V. St. Markg Ins. Co., 6 Buer, 6. 
 
 3. Policy on certain goods for the period of 
 one year in certain premises described. Dur- 
 ing the period insured, the goods were re- 
 moved from tlie premises to another place, 
 but no note or writing of the removal was 
 made either upon the policy or tlie books of 
 the company or otherwise. The plaintiff al- 
 leged that insurer's agents agreed to make the 
 necessary transfer on the books, and stated 
 that it was not necessary to alter the policy. 
 The Code of Georgia, § 2794, requires that 
 all contracts of insurance must be in writing. 
 Held, any alteration of the contract must also 
 be in writing, for every alteration is a new 
 contract; nor was there such a part perform- 
 ance as would take the case out of the statute. 
 Simonton v. Liverpool, London and Globe Ins. 
 Go., 51 Ga., 76 ; Groghan v. Underwriters Agency, 
 53 id., 109. 
 
 4. Stipulated : " Persons changing their 
 habitations or warehouses may preserve the 
 benefit of their policies if the nature and cir- 
 cumstances of the risk are not altered; but 
 the policy will be of no force till the removal 
 or alteration is allowed at the office by in- 
 dorsement on the policy." The policy was on 
 goods in Victoria street. A removal was al- 
 lowed by indorsement to stoi-es in Corporation 
 street. Goods were removed to Corporation 
 street exceeding In value the sum insured. 
 Before the removal was completed, a loss oc- 
 curred on goods in Victoria street exceeding 
 the sum insured. Held, but one risk was con- 
 templated ; therefore insurers were not liable. 
 MeClure ». Lancashire Ins. Co., 6 Irish Jur. 
 (N. 8.), 63. 
 
 RENEWAL OF POLICY. 
 
 (See CoHTiucT.) 
 
 598 
 
 REPAIRS. 
 
 (See Altsbations asd Refaiki.) 
 
 REPRESENTATIONS. 
 
 (See Concealment; HzsREPxtESENTATioNb ; SiOENEas 
 AND Disease; Title.) 
 
 I. What ake material. 
 
 II. HOT MATEBIAIi. 
 
 III. When satisfied. 
 
 IV. HOT SATI8PIBD 
 
 V. Interpretation or. 
 VI. Questions for the jury. 
 VII. Generally. 
 
 I. What aee mateeial. 
 
 1. On ship valued, dated November 11, 
 1795, in which she was described as French 
 built and warranted safe on September 2d pre- 
 cceding, and represented that she would have 
 an original bill of sale or an attested copy of 
 it on board. Held, a material representation ; 
 that a failure to have it where it could have 
 been used for the protection of the ship avoid, 
 ed the policy, although it was on board but 
 not within the knowledge of the master. 
 Murray v. Alsop, 3 Johns. C, 47. 
 
 2. The policy and survey constituted an 
 entire contract, and there was a question as 
 follows : " Is there a watchman in the mill 
 during the night?" Answer: "There is a 
 watchman nights." Held, a representation 
 material to the risk, to be substantially per- 
 formed. Sheldon v. Hartford Fire Ins. Co., 
 22 Conn., 235. 
 
 3. The application stated that the store was 
 occupied by tenants, including a cabinet 
 maker. The third story was vacant. There 
 were joiners shops in the first and second 
 stories. Held, not a warranty, it was a repre- 
 sentation merely, which must be true so far as 
 it was material to the risk. Boardman v. Nea 
 Hampshire Mutual Fire Ins. Go., 20 N. H., 
 551. 
 
 4. Stipulated in the application that the an- 
 swers to questions propounded were fair and 
 true ; that they should form the basis of the 
 contract; that if any of them were untrue or 
 iVaudulent, or any facts suppressed, the policy 
 should be void. Held, the answers were not 
 warranties, they wore representations merely, 
 but all were material representations, made so 
 by the terms of the contract. Price v. Phamix 
 Mutual Life Ins. Go., 17 Minn. 497. 
 
1197 
 
 REPRESENTATIONS. 
 
 1198 
 
 What are not material. 
 
 5. The ship's agent stated in a letter: "The 
 Brilliant will sail from Nassau for Clyde on 
 May 1st; a running ship;" they instructed 
 their correspondents to make insurance on 
 her. The letter was exhibited to the insurers. 
 A favorable opportuuity for convoy offered ; 
 she sailed April 23d, and was captured May 
 11th. Held, the representation was not the 
 representation of an expectation ; it was tlie 
 representation of a fact material to the risk, 
 not complied with, and therefore the insur- 
 ers were released. Dennistoun v. Lillie, 3 Bli., 
 203. 
 
 6. The following representation was made 
 by the broker to the insurer : " She was seen 
 safe in the Delaware December 11th, by a ship 
 which arrived at New York." She was lost 
 December 9th by running against a chevaiix de 
 fri»e, placed across that river. Held, it was a 
 material representation, which must be true 
 substantially; that when the insured repre- 
 sented facts, without knowing the truth, he 
 took upon himself the risk of showing that they 
 were true, hence the insurer was discharged. 
 MaeDowall v. Frazer, 1 Doug., 260. And the 
 representation by the agent was the act of the 
 principal. Ibid. 
 
 1. About a week before insurers signed the 
 policy, the broker represented that she was "to 
 sail with the Hopewell and Young Roscius, 
 both armed ships; she would herself carry ten 
 guns and twenty-five men." She did not sail 
 with those vessels, and carried only eight guns 
 and fifteen men. Held, it was a representation 
 that must be substantially complied with. 
 Bdwards v Footner, 1 Camp., 530. 
 
 8. The person whose life was insured was 
 asked whether she had effected any other in- 
 surance on her life, to which she replied she 
 had not, but intended to apply for one for 
 £3,000. She had at that time £11,000 upon 
 her life. Held, it was proper to toll the jury 
 that they were to determine whether the fact 
 ndt disclosed was material; if it was material 
 and the insurers were not apprised of it, the 
 policy was void. WainewrigM v. Bland, 1 M. 
 & Rob., 481 ; s. c, 6 Tyrw., 417 ; 1 Mee. &. W., 
 33; 5 L. J. (N. S.) Ex., 147. 
 
 9. The party for whose benefit the policy 
 was made delivered a proposal, printed and 
 written, in which the life of the person pro- 
 posed was described; audit stated: "He had 
 lived freely, but since his marriage was sober 
 and temperate; that he had no disease or dis- 
 
 order tending to shorten life, and that he had 
 not at any time had fits." The proposal con- 
 cluded : " And do hereby declare that we be- 
 lieve the above particulars and statements aps 
 true." Held, the statements taken together 
 were representations and not warranties. 
 Wheelton, v. Hardisty, 37 L. J. Q. B., 341 ; 5 
 Jur. (N. S.), 14. 
 
 II. What aee not material. 
 
 1. Insured represented : ""We have no doubt 
 we could get the insurance effected in New 
 York at that premium — 15 per cent." Appli- 
 cations had in fact been made to all the in- 
 surance offices in New York, but they had 
 refused the risk. Insurers refused to take 
 it at 15, but took it at 20 per cent. Held, 
 while the statement could not be defended at 
 the bar of conscience, the misrepresentation 
 could have had no Influence affecting the rate 
 of premium, because upon their own judg- 
 ment tliey demanded twenty per cent, instead 
 of fifteen ; nor ought it to have induced the 
 acceptance of the risk at all, nor influenced 
 the rate of premium, for the representation 
 expressed nothing but an opinion that the in- 
 surance could be effected at that rate ; and fur- 
 tlier, the insurer could not have accepted it as 
 a candid opinion, because the facts showed it 
 was not ; for if it were, why leave New York 
 and go to Philadelphia and there pay 20 in- 
 stead of 15 per cent.? Claxm v. Smith, 3 
 Wash. C. C, 156. 
 
 2. Representations do not affect the policy 
 unless the facts represented are material, and 
 even then a substantial compliance is all that 
 the law requires. The test by which materi- 
 ality is determined is that a larger premium 
 would have been required ; where no larger 
 premium would have been required, the rep- 
 resentation is not material. NieoU ». Ameri- 
 can Int. Co., 3 W. & M., 529. 
 
 3. Insured stated, the land adjoining is 
 vacant. HM, an immaterial representation. 
 Stebbimi>.&lobe Ins. Co., 2 Hall, 632. 
 
 4. On cargo, recited that 8. C. & Co. were 
 insured on account of the W. T. Co. Held, no 
 representation that S. C. & Co. were owners of 
 the boats. Ghase v. Wmhington Mut. Ins. Co., 
 12 Barb., 595. 
 
 5. Answer in application, not responsive to 
 an inquiry, does not avoid the policy unless 
 the information sought and not given was ma,- 
 
 699 
 
1199 
 
 REPRESENTATIONS. 
 
 1200 
 
 When satisfied. 
 
 terial to the risk, and then the oniis of proof is 
 upon insurer to show that. Daniels v. Hudson 
 Riser Fire Ins. Co., 12 Cash., 416. 
 
 6. Insured said, in conversation with the 
 agent who Utoik. the application, that he e.x- 
 pected to be from home mucTi of the time; 
 that the carpenter's shop would be little used, 
 though he might want to use it, and no fire 
 would be in it. Held, this representation 
 could not affect the right of insured to recover, 
 because it did not appear that it was ever com- 
 municated to the oflScers of the company, and 
 therefore could not have had any influence in 
 procuring the risk to be taken. Oirard Fire 
 and Marine Ins. Co. s, Stephenson, 37 Penn. 
 St., 293. 
 
 7. Insured stated at the time he applied for 
 permission to get other insurance, that the 
 building was finished. Ileld, an immaterial 
 representation. Williams v. New England Mu- 
 tual Fire Ins. Co., ^1 Me., 219. 
 
 8. To P., " For account of whom it con- 
 cerns." P. represented : " She is at Baltimore 
 about ready to sail, or she will sail soon. She 
 is a good old vessel. On the voyage before, she 
 brought a cargo of coal from Philadelphia to 
 Charleston, and the cargo was not insured; 
 the man for whom she brought it never 
 had his cargoes insured, as I understood." 
 Policy dated October 38th, but she did not 
 sail till December 23d. Held, no false repre- 
 sentation, for " That she was about ready to 
 sail, or will sail soon," was not a promissory 
 warranty ; nor " That she was a good old ves- 
 sel," for that imported nothing more than that 
 she was seaworthy. Augusta Insurance and 
 Banking Oo. v. Abbott, 13 Md., 348. 
 
 9. Statements in the application, not re- 
 quired by the policy, and not descriptive of 
 the property, are representations, notwith- 
 standing the policy refers to the application 
 and makes it a part thereof. Hartford Pro- 
 tection Ins. Go. ■B. Harmer, 3 Ohio St., 453. 
 
 10. The insured represented that the ship 
 was expected to sail on a day named. Held, 
 not material. Barber v. Fletcher, 1 Doug., 305. 
 
 11. The broker represented that "A cargo 
 was ready for her and she was sure to be an 
 early ship ; " but there was considerable de- 
 lay in beginning to load, which changed the 
 voyage home from a summer to a winter risk. 
 Held, the representation was only the subject 
 of expectation and belief, that the cargo would 
 be ready for her by the time of her arrival, 
 
 600 
 
 and that she might be expected to be an early 
 ship. Hubbard v. Glover, 3 Camp., 313. 
 
 12. Shipper's agent received a letter stat- 
 ing she was "A Portugese ship, and would 
 sail in a few days." The letter was not ex- 
 hibited to insurers, but the broker represented 
 that she would sail in a few days. Held, a 
 representation as to the time of the ship's in- 
 tended sailing must be considered only as a 
 probable expectation. Bowden v. Vaughan, 10 
 East, 415. 
 
 III. "When satisfied. 
 
 1. The owner of a ship wrote from New 
 Tork to an insurance broker at Boston, asking 
 him to get insurance upon her, and in the 
 letter he stated : " This is the same ship you 
 insured for me in Boston some years since. I 
 will only observe that I believe her to be one 
 of the strongest and best ships in the whole 
 fishery. She was newly coppered to light 
 water, above which she is sheathed with leather 
 to the wales." The terms •' coppered ship," 
 when applied to vessels destined on a whaling 
 voyage in the Pacific Ocean, were understood, 
 at Boston, according to the usages of that port, 
 to mean that ship's sides, bottom and keel were 
 covered with copper; but they were not so 
 
 understood at New Tork, according to 
 
 the usages of the latter port. This letter was 
 exhibited to the insurers, who made insurance 
 upon her. On her voyage out she ran upon a 
 rock at the Cape de Verdes, and broke off a 
 part of her false keel ; but she proceeded on 
 the voyage, and continued the cruise for two 
 years in the Pacific Ocean. Encountering 
 heavy weather, she was finally compelled to re- 
 turn to the Sandwich Islands, where she arrived 
 in December, 1829. in a very leaky condition. 
 Upon examination, her keel, stem, stern post^ 
 and some of her planks were entirely perfor- 
 ated by worms, and in that condition she was 
 unfit to go to sea. It was impossible to repair 
 her there, and she was condemned and sold. 
 Held, the insurers w&re bound to know the 
 meaning of the terms used by the insured, as 
 they were understood according to the usages 
 of the port of New York, where the writer 
 was, and where the vessel was when she was 
 insured; that they were bound to presume 
 that in describing the ship, insured used terms 
 in the sense in which they were understood at 
 New Tork, the place where the vessel and 
 
1201 
 
 REPRESENTATIONS. 
 
 1202 
 
 When satisfied. 
 
 ■writer were, and not in the sense in -which the 
 same terms were understood in Boston; for 
 the insured could not l^e presumed to know 
 the usages of the port of Boston, and he must 
 be presumed to know those of the port of New 
 York. Reversing s. c, 1 Sumn., 218. Haeard 
 t. Neu) England Marine Ins. Co., 8 Pet, 557. 
 
 2. The broker represented that she would 
 sail in ballast She sailed with one trunk of 
 merchandise and ten barrels of gunpowder. 
 Held, the representation was satisfied. Such- 
 ley V. Deitj^ield, 2 Caines, 223. 
 
 3. Representation that buildings are " fin- 
 ished " is complied with, if they are substan- 
 tially completed. Delonguemare «. Tradea- 
 fiusn'i Im. Go., 2 Hall, 589. 
 
 4. Represented to the insurer: " The cap- 
 tain is a careful and steady man, has good of- 
 ficers and crew, and no spirits allowed on 
 board." He had two kegs of spirits, four or 
 five gallons each, ship stores, which would 
 have been his on arrival at the point of desti- 
 nation. They were not broached, nor were 
 they on board for use. Hdd, the representa- 
 tion was verified, if the spirits were not on 
 board for use of officers or crew on the voy- 
 age, daring the risk assumed. Irein v. Sea 
 Ins. Go., 22 Wend., 380. 
 
 5. Policy required insured to make a just 
 and true statement of all facts in regard to 
 condition, situation, value and risk of the 
 property. Insured stated the value co be from 
 $2,000 to $3,000. The insurance was on 
 goods. Siid, if the representation was made 
 in good faith, and in reference to a stock of 
 goods of which those on hand should consti- 
 tute part, varying from |;i5,000 to $3,000, which 
 insured Intended and expected to keep during 
 the term, it was sustained, notwithstanding 
 there was less than $2,000 of goods in the 
 store at the time the representation was made. 
 Lee e. Hoteard Mutual Fire In*. Go., 11 Cush., 
 324. 
 
 S. Insured was required to state the rela- 
 tive situation with respect to other buildings, 
 and she answered : " -^ dwelling house and 
 cabinet shop, with fifty feet" There was a 
 cabinet shop two feet from the premises in- 
 sured. Hdd, the meaning of the answer was 
 that the buildings were within fifty feet of the 
 shop, and therefore the representations were 
 true. AUen e. UharUatown Mutual Fire In*. 
 Co., 5 Gray, 384. 
 
 7. It was described in the application as " a 
 
 hotel occupied by H." Held, if it was used 
 as a hotel at the time, there was no false rep- 
 resentation. Hall V. People's Mutual Fire Ins. 
 Co., 6 Gray, 185. 
 
 8. Insured stated that the building was used 
 for the manufacture of lead pipe only. Reels, 
 fur coiling lead pipe, were made in the attic. 
 Held, the manufacture of lead pipe included 
 the making of all things reasonably necessary 
 for carrying on the business. Collins v. 
 Gharlestown Mutual Fire Ins. Co., 10 Gray, 
 155. 
 
 9. The question was whether the ship was 
 at Limerick, as per representation made by 
 insured to that efiect The master's letter was 
 exhibited to the insurers, whicli stated that 
 she was at Grass Island. The proof was that 
 Grass Island was in the port of Limerick, but 
 not at the town. Held, she was at Limerick. 
 Bell e. Marine Ins. Co., 8 S. & R., 98. 
 
 10. Insured stated : " East side of the build- 
 ing, small one story sheds, could not endanger 
 building if they should burn." Held, though 
 the fire was communicated by the sheds in- 
 surers were liable, unless the representation 
 was fraudulently made. Dennison u. I'hi^mas- 
 ton Mut. Ins. Co., 20 Me., 125. 
 
 1 1. The application contained these ques- 
 tions and answers : " For what purpose used ? " 
 Ans. "It is used for stores?" ''How many 
 tenants?" Ans. "Two." The preliminary 
 proofs stated that the east half oi tlte lower 
 stoty was occupied by insured as a retail bout 
 and shoe store and shop; half of the lower 
 story as a retail tobacco and cigar store and 
 news rooms by Francis Olto, and the second 
 story and garret as sleeping rooms. Held, 
 these facts did not falsify the statements 
 made on the application. Peoria Marin-e and 
 Fire Ins. Co. «. Perkins, 16 Mich., 380. 
 
 12. Insured stated that the building was 
 used for "Tobacco pressing; no manufactur- 
 ing." In a shed, an addition to the main 
 building, tobacco hogsheads were manufac- 
 tured. Held, if the business of making the 
 hogsheads was incident to and appertained to 
 the business uf pressing, and by general cus- 
 tom was included, and understood to be in- 
 cluded, in the term " tobacco pressing," there 
 was no false representation. Sims v. State 
 In».Go.,Al Mo., 54. The inquiry should have 
 been, whether it was the general custom for 
 those engaged in the business of tobacco 
 pressing, to prepare their own hogsheads iu 
 
 601 
 
1303 
 
 REPRESENTATIONS. 
 
 1204 
 
 When not s-itisfied — Interpretation of — Questions for the jury. 
 
 the building where the business was con- 
 ducted. Ibid. 
 
 13. Insured represented in their application 
 that open lights were not used in the mill. 
 One open kerosene lamp was used in the office 
 of tlie mill, but not in the mill proper. Ileld, 
 no violation of the representation. Insurance 
 Co. of North America v. McDowell, 50 111., 120. 
 
 14. In the application, these questions were 
 asked ; " How often is account of stock taken ? 
 When was it taken last? What amount did it 
 reach?" Answer: "Every three months: 1st 
 January, 1873': $4,000." ^eM, not a condition 
 requiring insured to take an account of stock 
 every three months. Wyrme v. Liverpool, Lon- 
 don and Globe Ins. Co., 71 N. C, 131. 
 
 15. Insured represented that the ship had 
 been metaled in 1867. The proof was that 
 new melal had been put where it was required. 
 Held, no misrepresentation. Alexander v. 
 Campbell, 41 L. J. Ch., 478; 37 L. T. (N. S.), 
 463. 
 
 IV. When not satisfied. 
 
 The premises were described as a dwelling 
 house, " Then occupied by a care-taker, brick 
 and stone built, and slated." They were occu- 
 pied by a carpenter, who carried on his trade in 
 them for ten months, making the drawingroom 
 his workshop and using the house as a resi- 
 dence for himself and family. Held, a care- 
 taker implied a person whose only duty was to 
 guard the premises against injury, not to' 
 create danger; that the description was mate- 
 rial and false; hence there could be no recov- 
 ery allowed. Qain v. National Ass. Co., 1 
 Jones & Carey, 316. 
 
 V. Inteepeetation of. 
 
 1. A letter exhibited to the insurers read: 
 " The owners are already insured against the 
 dangers of the seas, and all other risks except 
 capture. You have already had a description 
 of ship from C. & D., the agents of Mr. J., 
 which I presume is correct I think proper 
 to mention that the insurance will be on ac- 
 count of Mr. B. L. and myself; Mr. B. and 
 Mr. Gr. are also concerned, but the first gentle- 
 man thinks there is so little danger of capture 
 that, in his letter from Lima, he expressly 
 directs that no insurance be made for him 
 against this risk, and Mr. 6. is not here to 
 
 consult. Both these gentlemen, as well as 
 those for wliom you are desired to make this 
 insurance, are native Americans." Held, the 
 letter asked insurance for the owners ; but it 
 could not be construed into a representation 
 that no other persons were interested in the 
 safe return of the cargo, nor was it to be con- 
 strued into a representation that all persons 
 interested in the cargo were native Americans. 
 Livingston v. Maryland Ins. Co., 7 Cranch, 506. 
 2. Policies, for whom it may concern. The 
 application for the first contained this clause: 
 " As interest may appear." The second was 
 predicated upon a letter written by D., a part 
 of which was as follows : " I wrote yon a few 
 days ago by the brig Ospray, Capl. Perkins, 
 direct for Baltimore, requesting you to have 
 insurance done for me on the brig Columbia 
 and her cargo, owned and commanded by me, 
 to sail from this to Baltimore about 5th t^) 10th 
 May, with a cargo of sugar. When I wrote 
 you by the Ospray, I could not .say what 
 amount of cargo to have insured for me. I 
 now think I shall have on hoard about 130,000 
 pounds, valued at $8,000, which acaount I 
 vfrish you to have insured for me." Indorsed: 
 " What will $3,000 be insured at, agreeable to 
 within letter on cargo, of which you have 
 $6,000, insured some time since? B. & H." 
 " 1^ per cent. Agreed, as interest may aii- 
 pear. B. & H." The whole cargo was con- 
 signed to D., the master ; and M., a Spaniard, 
 a belligerent, was interested $6,138.50. D., the 
 master, was the owner of the remaining inter- 
 est. Held, whatever might be the effect of 
 that letter, if taken alone, yet taken in connec- 
 tion with the indorsement, with the previous 
 policy to wliich it referred, the actual state of 
 the world and the nature of such transactions, 
 it was not such a representation as would viti- 
 ate the policy. Buck v. Chesapeake Ins. Co., 1 
 Pet., 151. 
 
 YI. Questions foe the juey. 
 
 1. Insurer gave in evidence the appli- 
 cation for the policy, in which it was stated 
 that the life proposed " Never had liver com- 
 plaint, or disease of the stomach or bow- 
 els ; that he had not, during seven years pre- 
 ceding, any sickness or disease, and that ho 
 did not then suspect any disease." He died 
 twenty-four days after, of congestion of the 
 liver, which produced fever. A physciaa 
 
1205 
 
 REPUGNANT STIPULATIONS. 
 
 1206 
 
 Generally. 
 
 testified that for three or four years he had 
 been the family physician, and had prescribed 
 for him occasionally since 1856 for indigestion, 
 torpid liyer, and colic ; that he knew deceased 
 was sick for short periods of a day or two 
 about eighteen months prior to his death; that 
 he tlien had cramps in the stomach. Other 
 witnesses were examined for insured who 
 said they had never known him to be unwell 
 except very slightly ; that they could not say 
 whether the doctor's statements were or were 
 not correct. Held, the evidence was sufBcient 
 to carry the case to the Jury. Life Int. Co. 
 V. Francisco, 17 Wall., 672. 
 
 8. Whether the time of sailing is a material 
 representation is a question, not for the court, 
 but for the jury. M'Lanahan v. Universal 
 Ia». Co., 1 Pet, 170. 
 
 3. She was represented as sis years old and 
 A 3 in the books of the insurance companies 
 in New York. But she was nearly eight years 
 old and was not rated in the books of any of the 
 companies in New York as A 2. Held, if the 
 representation was material it would avoid the 
 policy. BuOiiey e. Protection Ins. Co., 2 
 Paine, 83. 
 
 4. Insured stated, " A good w^atch is kept 
 upon the premises at night; men are usually 
 at work; the watchman works at the saws; 
 the building is not left alone at any time after 
 he leaves doty in the morning until he re- 
 turns in the evening." Held, a question of 
 fact whether the watch actually kept was or 
 was not "good and suitable." Parker v. 
 Bridgeport Int. Co., 10 Gray, 303. 
 
 5. Application made part of policy stated, 
 insured had a watchman in the mill when it 
 was not in use. On the night of the fire the 
 mill stopped work at six o'clock and the fires 
 were put out. Some of the employSs returned 
 at ten o'clock to see if all was right. They 
 then returned to their boarding house, about 
 thirty yards distant, and went to sleep. Held, 
 the court could not declare, as matter of law, 
 what was the proper degree of a watchman's 
 care; that it was for the jury to say whether 
 the insured had complied with his represen- 
 tation. Pover V. City Fire Ins. Co., 8 Phila., 
 566. 
 
 6. Insured represented that the business of 
 manufacturing had been completed for the 
 season ; and obtained insurance upon a starch 
 mill. There was then a quantity of starch in 
 the drying room, and afterwards a fire was 
 
 made in the furnace to expel moisture from it. 
 Held, it was a question for the jury to decide 
 whether tlie di-ying of the starch was or was 
 not a pai't of the manufacturing process. 
 Pereival «. JUaine Mut. Ins. Co., 33 Me., 243. 
 
 7. Whether representations are or are not 
 material to the risk is a question of fact 
 for the jury. Boardman v. Nev) Hampshire 
 Mutual Fire Ins. Co., 20 N. H., 551. 
 
 8. In the application, insured described the 
 property as his. The fee was vested abso- 
 lutely in his wife. Held, not a warranty that 
 he held the fee, but a mere representation, 
 and did not avoid the contract unless material 
 to the risk, of which the jury were the judges. 
 Mutual Fire Ins. Co. v. Deale, 18 Md, 26. 
 
 YII. Genekallt. 
 
 1. The Onus probandi is upon the insurer to 
 make out that the representation was untrue, 
 or that it has not been satisfied (citing Hough- 
 ton «. Manufacturers Ins. Co., 8 Met., 114). In 
 this case the defendant contended that tlie in- 
 sured did not liave a cask of water and buck- 
 ets in the several stories of the mill according 
 to the representation stated in the application. 
 Held, the burden was upon tlic defendant to 
 sliow that the representation was not observed. 
 Jones Manufacturing Go. v. Manufacturers 
 Mut. Ins. Co., 8 Uush., 83. 
 
 2. Representations are to be substantially 
 ti'ue on points material to the risk. Kentucky/ 
 and Louisville Insurance Co. ». Southard, 8 B. 
 Mon., 634. 
 
 3. A representation need only be substan- 
 tially performed; but if false, in a material 
 point, it avoids the policy. Pawson v. Watson, 
 Cowp., 785; 1 Doug., 11 n. 
 
 REPUGNANT STIPULATIONS. 
 
 I. Op the commencement and tebmina- 
 
 TION OF THE RISK. 
 
 II. WAKRANTI^S. 
 
 in. WHEN THE CLAIM MATITRES. 
 
 IV. FREE FROM ATERAOE. 
 
 v. TERRITORIAL LIMITS. 
 
 VI. REINSURANCE. 
 
 VII. OTHER INSURANCE. 
 
 VIII. THE PROrERTY INSURED. 
 
 IX. GUNPOWDER. 
 
1207 
 
 REPUGNANT STIPULATIONS. 
 
 1208 
 
 Commencement and termination of risk — Warranty — When claim matures — Free from ayerage. 
 
 I. Of the commencement and tbe- 
 
 MINATION OF THE EISK. 
 
 1 . On a vessel for a period of time speci- 
 fied, to-wit: Until October 5, 1834. But in 
 the printed part of the policy were these 
 words: " Until the vessel be moored twenty- 
 four hours in good safety." JIdd, they did 
 not convert it into a voyage policy, nor into a 
 mixed policy; that it expired on the date 
 named. Leeds v. Hechanics Ins, Co., 8 N. Y., 
 351. 
 
 2. On barge " lost or not lost wherever in 
 safety at noon March 36, 1868, and from 
 
 thence to noon on day of 18 — , when 
 
 this policy shall expire; with permission to 
 navigate the Mississippi from St. Louis to 
 Helena." The matter in italics was written. 
 Held, the words of limitation were in the 
 nature of an exception, and should be con- 
 strued contra the party who made them, and 
 should be so applied as not to contradict the 
 express agreement as to the time the risk was 
 to commence; hence, a loss before the barge 
 reached St. Louis was within the policy. 
 Bchroeder v. Stock and Mut. Ins. Co., 46 Mo., 174. 
 
 II. Of WAEEAiraiES. 
 
 1. The applicant agreed that the application 
 contained a correct description of the property 
 so far as it regarded the condition, situation, 
 value and risk of the same, and that any mis- 
 representation or suppression of material 
 facts shall destroy his claim foi* damage or 
 loss. The by-laws made all things stated in 
 the application apart of the policy and a war- 
 ranty on the part of the insured. Held, the 
 answers were to be qualified by the agreement 
 which followed them; hence, insured was 
 bound only so far as they were material to the 
 risk and were therefore for the jury to deter- 
 mine. Mlliott V. Hamilton, Mut. Ins. Co., 13 
 Gray, 139. 
 
 2. The declaration or proposal was made 
 part of the contract, which stipulated : " If any 
 statement contained in the declaration is un- 
 true, the policy shall be void." The proposal 
 concluded in these words: "And if it shall 
 hereafter appear that any fraudulent conceal- 
 ment or designedly untrue statement be con- 
 tained therein, then all of the money which 
 shall have been paid on account of the policy 
 
 C04 
 
 shall be forfeited, and the policy shall be 
 absolutely void." Held, the proposal and pol- 
 icy must be read together as one; that a state- 
 ment in the proposal, untrue in fact, did not 
 avoid the policy unless it was designedly 
 made. F'owkes ■». Mancliester and London Life 
 Ass. Co., 3 F. & F., 440; 3 B. & S., 917; s. c, 
 33 L. J. Q. B., 153; 11 W. R, 633; 8 L. T. (N. 
 S.), 309. 
 
 III. Of when THE CLAIM MATURES. 
 
 1. The act of incorporation, section 16, pro- 
 vided : " Suits at law may be prosecuted and 
 maintained by any member or stockholder, 
 against such corporation, for losses which 
 may have accrued, if payment is withheld 
 more than two months on all risks after such 
 losses shall have become due." The policy, 
 however, provided : " Payment of the loss 
 shall be made in sixty days after the loss shall 
 have Ijeen ascertained and proved, without 
 any deduction whatever." Held, repugnant 
 stipulations; that the former must yield to the 
 latter. Howard v. Franklin Marine and Fire 
 Ins. Co., 9 How. Pr., 45. 
 
 2. The policy was made subject to certain 
 terms and conditions therein contained and 
 thereto annexed. " Loss payable within sixty 
 days after due notice and proof thereof shall 
 be made by the insured in conformity to the 
 conditions annexed to this policy." Held, in- 
 sured must give notice and make proof of the 
 loss, according to the conditions annexed, not- 
 withstanding the provisions of cli. 106 uf the 
 statutes of 1864. Fasten Railroad v. Belief 
 Ins. Co., 98 Mass., 420. 
 
 IV. Of feee feom aveeage. 
 
 1. " Warranted free from average under ten 
 per cent.," also certain goods named and all 
 " perishable in their own nature, free from aver- 
 age unless general, and all other goods free 
 from average under five per cent, unless gen- 
 eral." The first warranty was written, the 
 other two were printed. Certain expenses 
 in the nature of general average wore incurred, 
 but they did not amount to ten per cent. 
 Held, the written warranty prevailed over 
 those that were printed, and limited all kinds 
 of average to ten per cent. Coster v. Phamx 
 Ins. Co., 2 Wash. C. C, 51. 
 
1209 
 
 REPUGNANT STIPULATIONS. 
 
 1210 
 
 Territorial limits — Reinsuiance — Other insurance. 
 
 2. " $14,300 on 6,000 boxes of lemons, free 
 of particular average, but liable for loss of part 
 by jettison. $3,800 on 4,000 boxes raisins, sub- 
 ject to ten per cent, average, Malaga to New 
 York. Raisins valued at $1.90 per box in 
 wholes, halves and quarter boxes in propor- 
 tion. Lemons at $4.25 gold per box." The 
 printed clause read " against perils to the dam- 
 age of the said goods or merchandise, or any 
 part thereof." Another printed clause read 
 "No partial loss or particular average shall in 
 any case be paid unless amounting to five per 
 cent." She was stranded and totally lost; but 
 4,000 boxes of lemons were saved and deliv- 
 ered in a sound condition. There was a total 
 destruction of over 2,000 boxes. Held, if a 
 portion of a contract is wholly repugnant to 
 the rest of it, and irreconcilable with the man- 
 ifest intention of the parties, apparent upon a 
 consideration of the whole instrument, it must 
 be stricken out (citing Stoiy on Contracts, ch. 
 20, sec. 660) ; that all the words of the policy 
 writteu and printed must be read together, and 
 if a repugnancy existed between them, the 
 written must control ; that it was not an insur- 
 ance on each box of lemons at the sum valued 
 per box ; but it was a single contract on the 
 entire number of boxes, and no action for the 
 loss could be maintained without showing 
 a total loss of the whole, or a loss of a 
 part by jettison (citing Newlin «. Insur- 
 ance Co. of North America, 20 Penn. St., 
 312). Hernandez e. Sun Mut. In*. Co., 6 Blatch., 
 317. 
 
 3. "Warranted free from loss caused by 
 leakage, of molasses or other liquids, unless 
 occasioned by stranding or otherwise;" but 
 the policy was indorsed in writing: "On 
 spirits of turpentine in cans packed in boxes 
 on deck, free from loss by wet, breakage, leak- 
 age or exposure." She was struck by a heavy 
 sea, which washed the deck and caused the 
 cans to leak, so that on arrival at the port 
 of destination they were nearly empty. Held, 
 insurers were not liable. Neilion v. Commer- 
 eial Ins. Co., 3 Dner, 455. 
 
 4. On cargo, "Free from average," were 
 written upon the face of the policy. The 
 printed words of the policy were as follows: 
 " Warranted free from average unless gen- 
 eral." Held, the stipulations were repugnant ; 
 the wiitten must prevail, and the printed 
 rejected. Bargett «. Orient Mut. Int. Co., 8 
 Bos., 385. 
 
 V. Of teeeitoeial limits. 
 
 Policy upon the life of 8., " of Valparaiso, 
 Chili, South America," for the term of his nat- 
 ural life. The policy prohibited residence in 
 any part of South America without express 
 permission of insurer in writing. Insurers in- 
 dorsed " Permissi(m to reside at Valparaiso, 
 Chili," leaving the amount of consideration 
 blank. Held, an insurance upon the life of S., 
 a resident " of Valparaiso," for an agreed pre- 
 mium, was of itself permission for him to 
 reside there without further permission or 
 payment of further consideration. He was 
 under no obligation to pay for that privilege. 
 Forbes v. American Mutual Life Ins. Co., 15 
 Gray, 249. 
 
 YI. Of EEINSTJEANCE. 
 
 Stipulated: "To be subject to the same 
 risks, valuations and modes of settlement as 
 are or may be adopted or assumed by said 
 company " (meaning the company reinsured). 
 Held, the printed conditions requiring prelim- 
 inary proofs of loss were overriden by the 
 written, and the responsibility of the reinsurer 
 became fixed when an adjustment was made 
 by the original insurers with the original in- 
 sured. Consolidated Fire Ins. Co. v. Cashow, 
 41 Md., 59. 
 
 VII. Of othee insurance. 
 
 1. Stipulated: "To be void if other insur- 
 ance shall be made without notice to the de- 
 fendant, and indorsed upon the policy." The 
 agent noticed prior insurance upon the face 
 instead of the back of the policy. Held, a suf- 
 ficient compliance. Amesv.Neu) York Union 
 Ins. Co., 14 N. Y., 253. 
 
 2. " Other insurance permitted without no- 
 tice until required," written on the face of the 
 policy, overrides anotlier printed condition, 
 prohibiting other insurance. Blake v. Ex- 
 change Mut. Ins. Co., 12 Gray, 265. 
 
 3. Policy prohibited other insurance with- 
 out notice ; but the following words were writ- 
 ten on its face: "Other insurance permitted 
 witliout notice." Held, it permitted prior as 
 well as subsequent insurance. Frederick 
 Gottnty Mut. Ins. Co. d. Defoi'd, 38 Md., 404. 
 
 605 
 
1211 
 
 REPUGNANT STIPULATIONS. 
 
 1212 
 
 Of the property insiued. 
 
 VIII. Of the pkofkett insueed. 
 
 1. "On his stock of fancy goods, toys and 
 other articles in his line of business, contained 
 in the brick building situate, etc., and now in 
 his occupancy as a German jobber and im- 
 porter." Stipulated: " The premises shall not 
 be used for carrying on therein any trade or 
 occupation, or for storing or keeping therein 
 articles denominated hazardous, extra hazard- 
 ous, or specially hazardous, in the second class 
 of hazards annexed." Among the second class 
 of hazards, fire crackers in packages were 
 classed as hazardous No. 3, and they added to 
 the premium ten cents per hundred dollars; 
 fireworks were classed in the same as specially 
 hazardous, and they added fifty cents per hun- 
 dred dollars to the premium, and to cover 
 them, they must be specially mentioned in 
 writing. Insured had fireworks in the store 
 for sale ; and, the fire originated in them. Held, 
 fireworks were not included under the name 
 of firecrackers, and that evidence tending to 
 prove that fireworks constituted an article in 
 the business of a German jobber and importer 
 was not admissible, hence the keeping of fire- 
 works avoided the policy. Steiabach v. Int. 
 Co., 13 Wall., 183. 
 
 2. " On printing and book materials, etc., 
 printed books, steam engine, and machinery. 
 Privilege for a printing office, bindery and 
 bookstore." The printed terms prohibited the 
 use of the premises for any business denomi- 
 nated hazardous or extra hazardous, or speci- 
 fied in the memorandum of special rates, or 
 for storing articles in either of those categories, 
 unless by special agreement in the policy. 
 Stocks of booksellers and printers' books were 
 specified as extra hazardous. The business of 
 printers of books was specified in the memo- 
 randum of special rates. The use of cam- 
 phene was also prohibited by the printed 
 terms. The fire was caused by a lighted match 
 thrown by a workman into a pan of camphene. 
 The jury found specially that the use of cam- 
 phene was general among printers, for clean- 
 ing ink rollers, washing stereotype plates, etc. ; 
 that it was not only useful but necessary. Held, 
 a loss within the policy. Harper v. New York 
 City Ins. Co., 22 N. T., 441 ; s. c, 1 Bos., 530. 
 
 3. " On printing and book materials, paper, 
 stereotype plates, and printed books. Privi- 
 lege for a printing office, bindery, and book- 
 store." Stipulated in the printed terms : " The 
 
 606 
 
 use of camphene, spirit gas or burning fluid, 
 prohibited, unless consent to keep it is in- 
 dorsed on the policy." Held, it was not the 
 mere presence of the article which was pro- 
 hibited, but its common though hazardous use 
 of lighting buildings: but if that were not so, 
 the term stock includes everything incidental 
 to the business covered, without particular 
 mention ; therefore, in construing this policy, 
 if camphene were necessary in printing and 
 bookbinding, it must be regarded as permitted 
 by the policy. Held, also, the written matter 
 controls the printed, when the latter is repug- 
 nant. Harper v. AWany MiU. Ins. Co., 17 N. 
 Y., 194 ; Bryant v. Poughkeepsie Mid. Ins. Co., 
 id., 200; s. c, 21 Barb., 154; Harper ». New 
 York City Fire Ins. Co., 22 N. Y., 441 ; e. c, 1 
 Bos., 520. 
 
 4. " On his stock, such as is usually kept in 
 country stores." Held, proper to admit evi- 
 dence to prove what goods were usually kept in 
 country stores; and if the evidence disclosed 
 a custom to keep spirits of turpentine, then 
 turpentine was within the policy, though pro- 
 hibited by the printed terms. Pindwr r. Kings 
 County Ins. Co., 36 N. Y., 648. 
 
 5. "On his stock of fancy go(.(ls, toys and 
 other articles in his line of business." Stipu- 
 lated : " To be void if the premises shall be 
 used for the keeping therein goods denomina- 
 ted specially hazardous in the second class of 
 hazards annexed, except specially permitted." 
 Fireworks were designated as specially haz- 
 ardous, in that class of hazards. Insured 
 kept fireworks, and by their accidental igni- 
 tion the loss occurred. Held, a question of 
 fact for the jury to determine, whether fire- 
 works were in the plaintiffs line of business, 
 if they were, then the description embraced 
 them (Steinback «. R. Fire Ins. Co., 13 Wall., 
 disapproved). SteinJiack v. La Fayette Fire 
 Ins. Co., 54 N. Y., 90. 
 
 6. " On their stock as photographers, includ- 
 ing engravings and materials used in their 
 business." By the printed terms of the policy, 
 the use of kerosene was prohibited, but the 
 proof showed that kerosene was ordinarily 
 used in the business, in a portable lamp or 
 stove, for heating paper and for other purposes. 
 It also appeared that a portable gas lamp or 
 stove might have been used for the same pur- 
 poses. Held, the word materials included ev- 
 erything in ordinary use, although things 
 other than those used might have been substi- 
 
1213 
 
 REPUGNANT STIPULATIONS. 
 
 1214 
 
 Of the property inauicd. 
 
 tuted (citing Harper «. Albany Mut. Ins. Co., 
 17 N. T., 194; Bryant tj. Ponghkeepsie Mut. 
 Ins. Co., id., 200; Harper v. New York City 
 Ins. Co., 23 id., 441). HaU c. Im. Co. ofJ^Torth 
 America, 58 N. Y., 293. 
 
 7. Insured applied for insurance : " On a 
 stock of all goods usually kept in a country 
 store." He stated in the application that 
 there was no cotton or woolen waste or rags 
 kept in or near the property insured. The 
 contract was made subject to the insurer's by- 
 laws, and they prohibited all cotton or woolen 
 waste or oily rags from being kept in the 
 premises; that such should be destroyed or 
 removed every evening. HtM, the keeping 
 of clean, white cotton rags did not affect the 
 policy, if they usually formed part of the stock 
 of a country store. Elliott «. Hamilton Mut. 
 In*. Co., 13 Gray, 139. 
 
 8. " On stock in trade, consisting of the 
 usual variety of a country store (except dry 
 goods), and on their store fixtures. Permission 
 to sell burning fluid and gunpowder, as per 
 application." Insured kept, as part of the 
 stock in trade, whale oil, friction matches, 
 earthen and glassware, all of which were 
 denominated hazardous or extra hazardous 
 goods, and, by the printed conditions, wore 
 prohibited, and for keeping them, special con- 
 sent was required in writing. Jleld, the writ- 
 ten part of the policy insured stock in trade, 
 consisting of tlie usual variety of a country 
 store ; if whale oil, friction matches, glass and 
 earthen ware were of that usual variety, the 
 keeping of them was no violation of the terms 
 of the contract, and therefore parol proof tend- 
 ing to show the usual variety was admissible. 
 Whitmar»h v. Comeay Fire Ins. Co., 16 Gray, 
 359. 
 
 9. " On property belonging to the company, 
 or on any property for which they may be 
 liable in freight buildings or yards." Stipu- 
 lated : " Accounts, books, furniture and cer- 
 tain other articles (enumerated) are not to be 
 insured tmless by special agreement." Held, 
 accounts, books and furniture, not being 
 specially described in the policy were not 
 insured. Commonwealth «. Hide and Leather 
 Ins. Go-, 112 Mass., 136. 
 
 10. "On merchandise, such as is usually 
 kept in country stores." Hardware, china, 
 glassware and looking glasses were designated 
 in the conditions annexed as hazardous risks, 
 and, by the terms of the policy, such were 
 
 neither to be insured nor kept, unless specially 
 insured. Held, the language of the policy in- 
 cluded all goods usually kept in country 
 stores, and if hazardous goods were usually 
 kept in such stores, then they were specially 
 insured. Franklin Fire Ins. Co. v. Updegraff, 
 43 Penn. St., 350. 
 
 11. Upon buildings used as a tannery 
 and patent leather manufactory. Stipulated: 
 " Privilege granted for keeping not more than 
 five barrels of benzole in a small shed entirely 
 detached from all the other buildings, about 
 one hundred feet from the main building." 
 Held, taking benzole in buckets or cans into 
 the buildings, to be used in the process of 
 tanning, was a risk assumed by the company, 
 if that was usual and customarj' in the manu- 
 facture of such leather; that the insurers were 
 bound to know what things were employed in 
 the business covered by the policy, and if they 
 were even ignorant that benzole was used in 
 this case, the privilege of keeping benzole in 
 a shed near by ought to have put them on in- 
 quiry. Citizens Ins. Co. c. McLaughlin, 53 
 Penn. St, 485. 
 
 1 2. " On groceries, hardware, boots and 
 shoes, crockery, hats and caps. Any trade or 
 occupation, or storing or keeping any articles, 
 goods or merchandise denominated hazardous, 
 extra hazardous or specially hazardous, pro- 
 hibited." Stipulated : " Whenever gunpow- 
 der or other articles subject to legal restric- 
 tion shall be kept in quantities greater than 
 the law allows, or in a manner different from 
 that prescribed by law, this policy shall be 
 null, unless the use or keeping is specially 
 provided for herein." Insured had in store a 
 few bottles of spirituous liquors and a barrel 
 of alcohol. Spirituous liquors and alcohol 
 were denominated hazardous, etc. Held, it 
 was proper for the court to instruct the jury 
 that it was a question of fact for them to find 
 whether alcohol was or was not included in 
 the term "groceries;" for if that term in- 
 cluded liquors and alcohol, then, by insuring 
 groceries, they were specially permitted in 
 writing on the policy. Niagara Fire Int. Co. 
 V. De Graff, 12 Mich., 124. 
 
 13. 13,000 on pork, lard, bacon, etc., and 
 all other articles composing the stock of a 
 pork house. Stipulated: "Goods held in 
 trust or on commission are to be insured 
 as such; otherwise the policy will not 
 cover them." Held, it included all property 
 
 607 
 
1215 
 
 RESCISSION OR CANCELLATI-ON. 
 
 1216 
 
 What is a rescission. 
 
 known as stock of a pork house, whether it 
 was the property of the insured or of others 
 intended to be benefited by the policy to the 
 extent of their interests, although goods held 
 in trust or on commission were not expressly 
 insured. Jackson v. ^tna Ins. Co., 16 B. 
 Hon., 242. 
 
 14. On a wagonmaker's shop and materials 
 for manufacturing wagons. Insured' had a 
 half barrel of benzine in the shop, for mixing 
 paints to be used upon wagons. The policy 
 stipulated that tlie company should not be 
 liable for damages resulting from explosions 
 caused by gunpowder, gas, or other explosive 
 substances, nor damages occasioned by cam- 
 phene, spirit gas or burning fluid, unless oth- 
 wise expressly provided. Held, if a paint shop 
 was a common part of a wagonmaker's shop, 
 and paints were used for manufacturing wag- 
 ons, and were customarily kept in the building 
 used for that purpose, and benzine was a ma- 
 terial vised for mixing such paints, then the 
 printed conditions were plainly repugnant to 
 the written clause and were to be disregarded. 
 Archer v.. Mercliants cmd Manufacturs Ins. Co., 
 43 Mo., 434. 
 
 15. The insurer consented that the building 
 should be used for manufacturing certain arti- 
 cles. In the manufacture of them it was 
 necessary to keep and use an article expressly 
 prohibited. Held, consent to manufacture 
 carried with it consent to keep for use every- 
 thing necessary in the manufacture. Viele «. 
 Q-ermania Ins. Co., 36 Iowa, 9. 
 
 IX. Of gunpowdee. 
 
 1. On stores. Permission was given to 
 keep extra hazardous goods enumerated, but 
 gunpowder was not mentioned in the list. At 
 the end of the list these words were printed : 
 " Gunpowder is not insurable except by spe- 
 cial agreement." There were three kegs of 
 gunpowder removed during the fire, and 
 while one of the buildings was being con- 
 sumed, a loud explosion took place which 
 was described as the explosion of a quantity 
 of gunpowder. Held, insured had a right to 
 put gunpowder in the buildings, but he was 
 not entitled to be paid for gunpowder con^ 
 sumed by the fire, for there was no special 
 agreement to insure it. Duncan «. Sun Fire 
 Ins. Go., 6 Wend., 488. 
 
 2. On a stock of goods consisting of a gen- 
 608 
 
 eral assortment of dry goods, groceries, crock- 
 ery, boots and shoes, and such other goods as 
 are usually kept in a general retail store. A 
 printed clause prohibited the storing of gun- 
 powder, phosphorus or saltpetre. Held, the 
 written portion controlled the printed stipula- 
 tions; where the two were repugnant, the 
 written must govern the rights of tl)e parties; 
 the written words were broad enough to in- 
 clude any goods that were usually dealt in by 
 persons keeping a general retail store. Phcs- 
 nix Ins. Co. ®. Taylor, 5 Minn., 493. 
 
 RESCISSION OR CANCELLATION. 
 
 I. What is a KESCisaioir. 
 
 II. NOT A BBSCISBION. 
 
 III. QUESTIONS SHALL NOT BE SUBMIT- 
 
 TED TO THE JURY. 
 
 IV. Generally. 
 
 I. What is a eescission. 
 
 1. Two shipments were at sea and two oth- 
 ers in port when insurers became insolvent, 
 and so notified defendants, who had given one 
 premium note for the whole premium. The 
 day after tliis notice was received, the parties 
 agreed to cancel the policy. Held, the court 
 would not infer an intent to abrogate the in- 
 surer's obligation and leave that of the insured 
 to stand. Merchants Mut. Ins. Co. v. Under- 
 wood, 1 Sandf., 474. 
 
 2. A broker employed by plaintiflf procured 
 the policy, which stipulated that the insurer 
 could, at its option, .advance the rate of pre- 
 mium. Insurer notified the broker of an ad- 
 vance of premium, one per cent. The bro- 
 ker's clerk, without the knowledge or consent 
 of the plaintiff, returned the policy to insurer, 
 directed it to be canceled, and it was can- 
 celed. Held, though .the policy was returned 
 for cancellation by a mistake of plaintifPs 
 agents, no action could be maintained on it. 
 Standard Oil Go. v. Triumph Ins. Go ,6 N. Y. 
 8. C, 300. 
 
 3. Insurers reserved the right to cancel in 
 case any assessment should remain unpaid for 
 thirty days. After an assessment was overdue 
 insured assigned the policy, and insurers as- 
 
1217 
 
 RESCISSION OR CANCELLATION. 
 
 1218 
 
 What is not a rescission. 
 
 sented, and subsequently notified assignee as 
 follows: "The company cancels all policies 
 on which assessments are not paid in thirty 
 days." Held, insurers could not maintain an 
 action for the premiuoi. Columbia Ins. Co. v. 
 Masonheimer, 76 Penn. St., 138. 
 
 4. A by-law, a part of the contract, gave 
 the right to insurer to cancel the policy after 
 seven days notice. The directors ordered the 
 canceling of a certain class of policies, in- 
 cluding the plaintiff's premises. A notice to 
 that effect was deposited in the postoflSce, 
 February 13th, after the mail had closed. 
 The plaintiff received it February 14th, and 
 the property insured was burned J'ebruarySSd. 
 Held, the contract was rescinded. Emmott v. 
 Slater Mutual Fire Ins. Co., 7 R. I., 563. 
 
 5. The articles of incorporation and by- 
 laws authorized the directors to recover delin- 
 quent assessments, or at their option to annul 
 the policy. They passed a resolution declar- 
 ing that holders of policies who were delin- 
 quent on a certain assessment, and others who 
 should remain delinquent beyond a date men- 
 tioned, should be excluded and debarred from 
 all benefits of their insurances. Held, the di- 
 rectors had the authority to pass the resolu- 
 tion, and it was effectual to annul the con- 
 tract of the insured. Coles v. Iowa State Mu- 
 tual Ins. Co., 18 Iowa, 425. 
 
 6. Policy to expire July 29, 1858. She was 
 in port April 12th, and insured directed the 
 broker to get credit for the premium for the 
 unexpired time. On 20th of April the de- 
 fendants canceled the policy, allowing credit 
 £1 17s. lOd., for three months unexpired time. 
 But not having received any reply on the 22d 
 to their order, they wrote a note witlidrawing 
 it. The ship was burned on that day. Held, 
 the rescission was complete. Barnes d. Wood- 
 fall. 6 C. B. (N. 8.), 657; b. c, 28 L. J. 0. P., 
 338;6 Jur. (N. 8.), 19. 
 
 7. Stipulated: "The original term shall be 
 treated as a renewed contract of the like na- 
 ture and conditions, unless the member inter- 
 ested or the board of directors shall give two 
 calendar months notice of an intention not to 
 renew the same." Insured told the person 
 with whom he effected the policy that he 
 should withdraw from the society and have 
 nothing further to do with it. Held, a suffi- 
 cient notice of withdrawal, and insured was 
 not liable as a contributory to the debts of the 
 association. In re Solvency Mutual Guarantee 
 
 Society, Hawtliorne's Case, 10 W. R., 573; 6 L. 
 T. (N. S.), 574. 
 
 II. What is not a rescission. 
 
 1. The insured signed an application which 
 contained the following stipulation: "The in- 
 surance on this application is to take effect 
 when approved by E. P. Dorr, general agent 
 of the ^tna Insurance Co., Buffalo, N. T." 
 The company's agent, at tlie place where the 
 application was made, had been furnished 
 with blank policies duly signed by the presi- 
 dent and secretary, which required, to make 
 them valid, nothing but the terms of the con- 
 tract to be written in them, and to be counter- 
 signed by the agent. He filled up and deliv- 
 ered one of them to the insured, and ac- 
 cepted the usual premium note as the con. 
 sideration. The application was transmitted 
 by the local to Dorr, the general agent, who 
 received it September 39th. He directed the 
 local agent to return the premium note to in- 
 sured and to cancel the policy. Nothing 
 further was done till after the loss, October 
 35th. Held, the policy issued was perfect in 
 form and substance ; that the act of the local 
 agent could not be regarded as a nullity until 
 approved by Dorr; that the stipulation quoted 
 must be considered in connection with other 
 parts of the transaction, and treated, at most, 
 as the reservation of a right which the general 
 agent could not exercise ai'bitrarily. Insur- 
 ance Co. V. Webstw, 6 Wall., 129. 
 
 2. The insured proposed to insurer to cancel 
 the policy, which was rejected ; and afterwards 
 insurers informed insured that they would ac- 
 cede to their terms. But before insured re- 
 ceived that notice, information reached them 
 that a loss had occurred. Held, the policy 
 was binding upon the company. Head v. 
 Providence Ins. Co., 3 Cranch, 137. 
 
 3. Under an agreement made between libel- 
 lants and William, he purchased several car- 
 goes of wheat in Milwaukee and shipped 
 them to libellants at Buffalo. William associ- 
 ated with him three other persons in the busi- 
 ness; but they were neither known to nor 
 recognized by libellants. In pursuance of that 
 agreement he shipped on board the schooner 
 Excelsior a quantity of wheat in the name of 
 D. as shipper, and insured it, loss, if any, pay- 
 able to D., for which he took a certificate of 
 insurance, loss payable to D. or order liereon 
 
1219 
 
 RESCISSION OR CANCELLATION. 
 
 1220 
 
 What is not a resassion. 
 
 on the return of this certificate. William and 
 his associates were agents of eastern insurance 
 companies, and as such, procured the certifi- 
 cate. William drew against the shipment in 
 favor of D. Libellants sent a telegram to 
 William which he misunderstood, and in con- 
 sequence, he notified insurers to cancel the 
 policy. The schooner foundered and the 
 property insured became a total loss. No- 
 tice was given of the mistake forty-eight hours 
 after the loss. Held, libellants were in no 
 sense partners with William and his associ- 
 ates; D. held the legal title to the cargo; that 
 no person could disturb his interest in the 
 certificate of insurance without his consent; 
 the libellants having honored the draft became 
 the legal owners of the cargo, and by indorse- 
 ment of the certificate of insurance, the legal 
 owners of it; that William had no authority, 
 from any source, to cancel or to give notice of 
 cancellation. Marsh v. Northwestern, National 
 Ins. Go., 3 Biss., 351. 
 
 4. Stipulated: "The insurer may terminate 
 the iusurance at any time, on giving notice 
 and refunding a ratable portion of the pre- 
 mium for the unexpired term." In the latter 
 part of November, 1865, insurers gave notice, 
 to a person said to be the plaintiff's agent, 
 that they would cancel the policy and return 
 him the unearned premium pro rata, but would 
 allow him till noon, December 6, 1865, to place 
 the insurance elsewhere. The policy was 
 canceled on the books of the company as of 
 that date, and $24 was subject to the call of 
 the plaintiff or his agent. The property was 
 consumed December 25th ; but this fact was 
 unknown to insurers or the agent of insured 
 December 30th, at which time he received the 
 unearned premium and signed a cancellation 
 receipt. Held, from the time the fire occurred, 
 insurer became an absolute debtor to the 
 plaintiff because the amount of the insurance; 
 that the negotiations after the company's 
 liability became fixed could not discharge the 
 insurer, for a debt cannot be discharged by 
 payment of part only; that the notice to 
 cancel was not effectual until payment of the 
 unearned premium. Van Valkenburgh e. 
 Lenox Fire Ins. Co., 51 N. T., 465. 
 
 5. Stipulated that either party might cancel 
 the policj' at any time. The agent was direct- 
 ed to cancel it, but he agreed with insured 
 that it should remain in force till another 
 policy could be procured; and a loss oc- 
 
 610 
 
 curred before that was done. Held, a valid 
 existing contract against the defendants. 
 Ooit V. National Protection Int. Co., 25 Barb., 
 189. 
 
 6. Stipulated: This insurance may be at 
 any time terminated at the option of the com- 
 pany, on giving notice to that effect and re- 
 funding a ratable proportion of the premium 
 for the unexpired term. March 13th, 1866, de- 
 fendant's agent was ordered to cancel it, 
 which order was communicated to insured, 
 who requested agent to ask defendants to 
 leave the policy in force till April 1st next. 
 The agent complied with this request. The 
 defendants refused, but consented tu allow 
 it to continue till March 21st, at noon, all of 
 which was communicated to insured before 
 March 20th, and to which insnred assented 
 and agreed to call at the agent's office with -the 
 policy March 21st, and receive the return pre- 
 mium, and have the policy canceled. Insnred 
 called at the agent's ofiice, but failed to find 
 him. Several conversations took place be- 
 tween the parties afterwards, but as to what 
 was said the evidence conflicted. Held, 
 the burden was upon the defendant to prove 
 that the plaintiff waived payment of the re- 
 turn premium, and unless that was waived the 
 policy continued in force. Haihurn v. Oer- 
 mania Ins. Co., 55 Barb., 28. 
 
 7. Insurers directed their agent to cancel 
 the policy, unless insured would pay an en- 
 hanced premium, which information was con- 
 veyed by the agent to the person who pro- 
 cured the insurance. Insured declined to 
 pay the additional rate, and the person who 
 procured the policy requested insurer's agent 
 to postpone the cancellation until he could 
 get another company to take the risk. The 
 vessel was destroyed by fire on the night of 
 March 1, 1867. The person who procured 
 the insurance, without knowing that the loss 
 had occurred, procured a policy on th« same 
 risk for the same amoimt, took it to the office 
 of insured, and, speaking to a person in 
 charge of the books and papers, said he 
 wished to make some change in their poli- 
 cies, which were handed to him. He took the 
 defendant's policy out and put the Merchants' 
 policy in its place. Neither the insured nor 
 the person in charge of their papers knew 
 (hat he had done so. He marked the defend- 
 ant's policy canceled, and delivered it to the 
 defendant's agent. Held, the policy was not 
 
1221 
 
 RESCISSION OR CANCELLATION. 
 
 1222 
 
 What is not a lescission. 
 
 canceled. McLean, c. RepubKc Fire Int. Co., 
 3 Lans., 421. 
 
 8. Action on a premium note. Held, an 
 unexecuted parol agreement to cancel the pol- 
 icy and surrender the note for a payment of 
 part could not defeat the action. OelvnAia 
 Ins. Oo. 0. Stone, 3 Allen, 385. 
 
 9. Stipulated: "The company have the 
 right of canceling any policy at any time 
 when two-thirds of the directors present at 
 any meeting shall deem there is sufficient 
 eanse therefor." The directors passed a reso- 
 lution that: "All deposit notes on existing 
 policies be collected in fbll and that holders 
 of policies be notified to pay their notes with- 
 in thirty days, and if the same arc not paid 
 within that time the policies will be can- 
 celed." A copy of the resolution was sent to 
 insured, and a request to pay the note; no at- 
 tention was paid to it. Insured were further 
 notified to pay the premium or to deliver the 
 policy to be canceled. Held, neither the reso- 
 lution nor the notice amounted to more than 
 an intention to cancel. Lyman o. State Mnt. 
 Int. Co., 14 Allen, 329. 
 
 10. The sixth plea alleged that the deceased 
 procured the policy in the name of his wife, 
 and afterwards surrendered it to the company 
 in consideration of certain misrepreseutations, 
 and a new policy was issued upon the life of 
 the deceased, bearing date about one year af- 
 ter the first, for the amount of $500, payable 
 to the representatives of the deceased. Hdd, 
 no answer to an action on the first policy, for 
 the husband had no legal right to control it, 
 and the unauthorized surrender set up in the 
 plea constituted no defense. Fraternal Mutu- 
 al Life Int. Co. o. Applegate, 7 Ohio St., 292. 
 
 11. Insured wrote to insurer's secretary: 
 " Consider policy No. 39 canceled from the 
 18th inst., and make a new policy from that 
 date for one year, with privilege of the Mis- 
 sissippi." Insurer replied: " I cannot agree 
 to the proposed change, and therefore cancel 
 pro rata, and charge return premium." The 
 insured made no rejoinder to insurer's reply, 
 but retained the policy. Held, until he as- 
 sented to insurer's reply the policy was a val- 
 id contract WiUdni o. Tobacco Int. Co., 1 
 Cin. Sup. Ct, 349. 
 
 18. Evidence was given tending to show 
 that insurers' agents had taken the promissory 
 note of insured for the premium. Insurers 
 directed their agents to cancel the policy, and 
 
 they gave insured notice that they had can- 
 celed it. Held, if tlie agents of insurers acting 
 for themselves, advanced the money for tlie 
 premium to the insurers, and took the prom- 
 issory note of insured for the amount, insurers 
 could not cancel the policy without returning 
 the unearned premium. It was no conse- 
 quence who paid the premium. Home Ins. Co. 
 V. Curtis, S. C. Mich., 5 Ins. Law Jour., 120. 
 
 1 3. The company had the right to cancel 
 the policy if the directors should so elect, after 
 notice given to the insured. The directors 
 passed a resolution September 21, 1871, by 
 which they resolved to discontinue risks un- 
 der policies issued upon property outside the 
 county of St. Louis. The property insured 
 was not within the county of St. Louis. The 
 secretary of the company gave notice to in- 
 sured that the policy was canceled, asked for 
 its surrender, and offered to return the premi- 
 um note. No otlier notice was served upon 
 insured. Held, the company could not cancel 
 without giving a previous notice to insured ; 
 also, before the cancellation could have any 
 effect, it must be entered upon the books of 
 the company, because the charter required 
 that the insured should be bound fur his pro- 
 portion of assessments up to the day of actual 
 cancellation on the books of the company ; 
 and, as the company retained the right to make 
 assessments up to that day, the policy holder 
 could not be divested of his protection in the 
 absence of a strict compliance with the condi- 
 tion. Landin o. Home Mutual Fire and Ma- 
 rine Im. Co., 56 Mo., 591. 
 
 14. One of the insured received information 
 that insurer had directed the policy to be can- 
 celed; but the insurers' agent verbally agreed 
 tliat the risk should be carried until insured 
 should again hear from the agent. Insured 
 subsequently gave directions to the agent to 
 transfer the risk to another company, but the 
 agent did not do so. Tender of the premium 
 was never made. Held, tliere was no rescis- 
 sion of the contract so long as there was no 
 tender of unearned premium. -JStna Ins. Co. 
 0. Maguire, 51 111., 342; Peoria Marine and 
 Fire Ins. Co. e. Botto, 47 id., 516. 
 
 15. Stipulated: "Insurer may repay un- 
 earned premium and cancel the policy at 
 any time." Held, an offer to repay and 
 rescind could not be allowed, if the prop- 
 erty was threatened by an approaching fire. 
 To allow insurer to cancel at that time would 
 
 611 
 
1223 
 
 RESCISSION OR CANCELLATION. 
 
 1224 
 
 Wiat questions shall not be submitted to the jury — Generally. 
 
 render policies valueless. Home Ins. Co. v. 
 Heck, 65 111., 111. 
 
 16. The policy stipulated that the contract 
 migbt be at any time terminated at the option 
 of the insurer by giving notice to that effect, 
 and refunding a ratable proportion of the pre- 
 mium for the unexpired term. The insurers 
 elected to cancel the policy, unless insured 
 ■would pay an additional premium, -which they 
 declined to do. The policy was forwarded 
 from Gadsion, Ala., to Rome, Georgia, for can- 
 cellation, Januaiy 15th, and was received by 
 the agents of insurer at Rome on the 17th or 
 18th, who notified agents of insured that he 
 was ready to pay the unearned premium ; but 
 he did not in fact pay it till February 37th, at 
 which time the goods had been burned. That 
 fact was not known to either party when the 
 money was received. Held, the policy was 
 not canceled until the money was received by 
 the agent of insured (citing Peoria Marine and 
 Fire Ins. Co. v. Botto,47 111., 516; Hawthorne 
 V. Germania Ins. Co., 55 Barb., 38) ; that the 
 return premium was paid and received in ig- 
 norance of the loss; therefore the insurer was 
 not released from his liability under the con- 
 tract. Hollingsworth v. Germania Fire Ins. 
 Go., 45 Ga., 394. 
 
 17. B. instructed his broker to procure in- 
 surance on the ship for £3,000, for a specified • 
 time* The broker made the requisite appli- 
 cation to insurers' agent, a policy was pre- 
 pared, and the broker debited with the pre- 
 mium. A debit note was sent with the pol- 
 icy to the broker's office ; but his clerk told 
 the person that brought it that there had been 
 a mistake, that the policy ought not to have 
 gone forward, and that there was no premium 
 due. It was returned to insurers' office, and 
 one of the broker's clerks there repeated what 
 the other clerk had said, and requested a can- 
 cellation, which was accordingly granted, and 
 it was returned to the broker with a mem- 
 orandum to that effect indorsed, to enable 
 him to get a return of the stamp duty. The 
 broker's clerks acted without any instructions 
 from the insured, and subsequently upon dis- 
 covering the mistake, requested insurers to re- 
 instate the policy, which would have been 
 done but for the fact that the ship was then 
 stranded. She was subsequently totally lost. 
 Held, there was a perfect and binding con- 
 tract when the policy was signed and sealed, 
 notwithstanding it remained in possession of 
 
 insurer ; that it was not necessary for the in- 
 sured to formally accept or take away the pel- 
 icy in order to make the delivery complete; 
 that the alleged cancellation was not blading 
 upon insured, because he never gave the broker 
 authority to cancel, and it was no part of 
 the ordinary duly or power of a broker to 
 cancel completed agreements. Xenoi v. Wick, 
 ham, 3 L. R. Eng. & Ir. App., 396; 14 C. B. 
 (N. S.), 861; 16 L. T. (N. S.), 800; 16W.R., 
 38; 36 L. J. C. P., 318 ; reversing s. c, 13 C. B. 
 (N. S.), 381; 14 id., 435; 9 Jur. (N. S.), 471; 10 
 id., 339; 11 W. R., 1067; 33 L. J. C. P., 13. 
 
 III. "What questions shall not be 
 
 SUBMITTED TO THE JUEY. 
 
 The oflFer to cancel and refund the premium 
 was made while the property was threatened 
 by an approaching fire. Held, the right of 
 insurers to return the preminm and cancel 
 the policy could not be made to depend upon 
 the bona fides of the insurer's agent, because 
 that would take away from the jury the ques- 
 tion of threatened and imminent danger of an 
 approaching fire. Home In». Go. v. Heck, 65 
 111., 111. 
 
 IV. Generally. 
 
 1. If the insurers claim the right to rescind 
 the contract generally, they cannot afterwards 
 assign a specific reason. If a specific reason 
 is assigned they are bound by it and cannot 
 be allowed to show any other. Gdhill v. Andes 
 Ins. Go., 5 Biss., 311. 
 
 2. If the party who has been guilty of the 
 fraud in procuring the contract, brings au 
 action to enforce it, the other party is nut 
 obliged to return what he has received under 
 it, but may set up the fraud as a complete or 
 partial defense to the whole action, without 
 showing that on discovering the fraud, he 
 offered to rescind. Harris v. Equitable Life 
 Ass. Sac, 3 Hun. (N. Y.), 734; b. c, 6 N. T. S. 
 C, 108. 
 
 3. Insurer alleged that the policy had been 
 canceled before the loss occurred. Held, it 
 was not necessary to aver that the cancellation 
 took place with the knowledge and consent 
 of insured, for there could be no rescission or 
 cancellation without his knowledge and con- 
 sent; and that was matter of proof to be given 
 
1225 
 
 RES JUDICATA — RETURN PREMIUM. 
 
 1226 
 
 Miscellaneous. 
 
 upon the trial. King v. Enterprise Ins. Co., 45 
 Ind., 43. 
 
 4. Stipulated: " If during the insurance the 
 risk be increased by Uie erection of buildings, 
 or by the use or occupation of neighboring 
 premises, or otherwise, or from any other 
 cause, if the company shall so elect, it shall 
 be optional with the company to terminate 
 the insurance, after notice is given to the 
 insured or his representatives, of an intention 
 to do so, in which case the company will 
 refund a ratable proportion of the premium.'' 
 Held, for any of the causes mentioned insurer 
 had the right to cancel the policy. Albany 
 City Im. Co. v. Keating, 46 111., 394. 
 
 5. The court instructed tlie jury, that al- 
 though tiiere might be misrepresentation in 
 the application, insurers could not avail them- 
 selves of that defense without first tendering 
 to insured the premium paid. Held, this is 
 undoubtedly the law in regard to the rescission 
 of contracts ; but it had no application to the 
 case at bar, for any fraudulent misrepresen- 
 tation of a fact material to the risk vitiated 
 the policy. Blaeser v. Mibeaukee Mechanics 
 Mvt. Int. Go., 87 Wis., 31. 
 
 RES JUDICATA. 
 I. What abe. 
 
 II. SOT. 
 
 I. What aee. 
 
 The defenders, having raised an action to 
 recover for a total loss, were defeated. The 
 pursuers raised this action to recover the pre- 
 mium. Held, the former adjudication was 
 conclusive upon the parties upon the question 
 of total loss. Smith v. FUmming, 13 C. 0. 8., 
 1S8; 22 Scot Jur., 7. 
 
 IL "What abe not. 
 
 1. The record of a court of general juris- 
 diction, showing an order of nonsuit and the 
 action discontinued, is no bar to a subsequent 
 suit for the same cause of action. Audubon 
 V. ExceMorlm. Co., 27 N. Y., 316. 
 
 2. If the defendant fails to file a seUiff judg- 
 ment may be delayed, that he may bring a 
 
 cross-action without prejudice to the lien of 
 the plaintiff's attorney for fees. Rider v. Ocean 
 Ins. Co., 20 Pick., 259. 
 
 3. The judgment was founded upon the fact 
 that the action was brought in the name of a 
 person who could not sue. Held, no bar to an 
 action brought in the name of a person en- 
 titled to sue. Fleming v. Insurance Co., 12 
 Penn. St., 391. 
 
 4. $6,000 on cargo of ice contained in four 
 ice boats. One was sunk three miles below 
 Pittsburg, for which there had been a former 
 recovery, and these two actions were brought 
 to recover a loss on the others. Held, one 
 action of covenant is no bar to another on the 
 same instrument claiming for another breach. 
 Merchants Ins. Co. v. Algeo, 31 Penn. St, 446. 
 
 5. A former appeal of this case was dis- 
 missed, because a statement of tlie case had 
 not been settled by the judge who tried it. 
 Held, unless the appeal was dismissed for want 
 of prosecution, or upon the merits, it was no 
 bar. Cooper v. Pacific Mvt. Ins. Co., 1 Nev., 116. 
 
 RESPONDENTIA. 
 
 (See BoTTOHRT xsj> KsspoiniBiinA.) 
 
 RESTRICTION OF RESIDENCE. 
 
 (See Tekkitobui. LmiTs.) 
 
 RETURN PREMIUM. 
 
 I. When it shall be betctrked. 
 
 II. NOT BE RETimNED. 
 
 I. When it shall be eetuened. 
 
 1. The rule that tlie right to the premium 
 is indefeasible, if the policy attaches, is not 
 without exceptions; for, if the contract of in- 
 surance was legal when made, and the per- 
 formance of the voyage insured became illegal 
 by a subsequent law, then both parties to the 
 contract are discharged from its obligations. 
 Gray v. Sinw.S Wash. C. C, 276. 
 
 613 
 
122T 
 
 RETURN PREMIUM. 
 
 1228 
 
 When it shall be returned. 
 
 2. It was represented that lamps were not 
 used in the building; but lamps were sus- 
 pended and occasionally used, and their use 
 caused the loss. fi'eW, the policy did not at- 
 tach, and there must be a return of premium. 
 Clark v. Manvfacturers Ins. Go., 3 W. & M., 
 472; s. c, 8 How., 335. 
 
 3. Where the policy is void for breach of 
 warranty, the insured is entitled to a return 
 of the premium if there be no actual fraud. 
 JDelavigne n. United Ina. Go., 1 Johns. C, 310. 
 
 4. Policy in the name of A., for account of 
 B., as interest might appear. The cargo be- 
 longed to B. and four others who were not 
 connected in trade with B., and knew nothing 
 of the insurance. Held, B. was entitled to a 
 return of premium for the difiTerence between 
 the value of his interest in the cargo, $13,000, 
 and the wliole amount at risk, $35,000. Holmes 
 V. United Ins. Go., 3 Johns. C, 339. 
 
 5. Where the policy, never attached, there 
 must be a return of preiftium. Forbes v. 
 Church, 3 Johns. C, 158. 
 
 6. For return of premium, upon a policy 
 on schooner, at and from the port of Trinidad 
 to New York, purporting to be made by the 
 plaintiff, for himself or for Peter Malibran, or 
 whoever it might concern. Malibran pur- 
 chased her at Trinidad. The master of the 
 ship Albemarle being present was consulted 
 as to how she should be employed, and sug- 
 gested that she should be sent with a cargo to 
 New York. The master of the Albemarle siailcd 
 for New York without having any positive 
 knowledge as to how the schooner would be 
 employed. The plaintiff effected the present 
 insurance without any instructions, other than 
 the information which the master of the Albe- 
 marle conveyed to him. Malibran testified 
 that the vessel and cargo were his sole prop- 
 erty ; that he never gave any instructions for 
 insurance, and that the schooner went on a 
 voyage from Trinidad to Havana. Held, the 
 premium must be returned. Steiriback «. 
 Bhinelander, 3 Johns. C, 368. 
 
 7. "A wager contract is void, if it be against 
 the principles of public policy, equally as if 
 it contravened a positive law," and if the con- 
 tract is declared void on principles of public 
 policy it would be unconscientious for the in- 
 surer to retain the premium. Mouivt c. Waite, 
 7 Johns., 434. 
 
 8. The policy provided that the ship might, 
 for an additional premium, go from Teueriffe 
 
 614 
 
 to the Isle of May and Bona Vista, and thence 
 to New York, one per cent, to be returned if 
 she should not go to Bona Vista, and the risk 
 end safely. She was not permitted to enter 
 Teneriffe, unless she would perform quaran- 
 tine for forty days ; refusing to do so, she went 
 to Madeira, thence to the Isle of May, not to 
 Bona Vista. Held, the voyage from Teneriffe 
 to the Isle of May and Bona Vista never com- 
 menced, and therefore insured was entitled to 
 a return of premium. Jiob&rtaon V.Columbian 
 Ins. Co., 8 Johns., 491. 
 
 9. From Malta to St. Petersburg. Slipu. 
 lated, for a return of fifteen per cent, premium 
 if the vessel passed the Gut of Gibraltar on or 
 Ijefore June 20th, and the risk ended without 
 loss, or the same, if the risk ended in safety at 
 Gottenburg. In the Eaglish Channel, super- 
 cargo received information which induced 
 him to abandon the voyage and go to London. 
 Held, the insured had the election of termi- 
 nating the voyage at Gottenburg, and if 
 it was broken off before the voyage from Got- 
 tenburg to St. Petersburg commenced, tlie 
 policy never attached to that part of the voy- 
 age, and therefore insured was entitled to a 
 return of premium. Ogden ®. New York Fire- 
 men's Ins. Co., 12 Johns., 114. 
 
 10. If the policy has never attached and 
 there is no ground to presume fraud against 
 the insured, the judgment must'be for a return 
 of premium. Fibers v. United Ins. Co., 16 
 Johns., 129: Waddingtim v. United Ins. Co., 
 17 id., 23. 
 
 11. At and from New York to Montevideo 
 and Buenos Ayres, and at and from thence 
 back to New York, one and three quartei-s per 
 ceilt. each way, one half per cent, to bie re- 
 turned if Buenos Ayres is not used. The pol- • 
 icy Was in the name of A. and B., for account 
 of whom it might concern, the legal interest 
 being In H. A. and B. gave their notes for 
 the premium. On the out trip, H. and the 
 master scuttled and fired the vessel. She be- 
 came a total loss, but A. and B. were entirely 
 innocent of any intention to commit the 
 fraud. Insurers defended upon the policy 
 successfully, and this action was brought to 
 recover on the premium note. Held, the 
 plaintiffs could not recover the whole pre- 
 mium, for the voyage was divisible ; it was in 
 effect a separate insurance on each voyage at 
 one and three quarters per cent. Insured 
 were entitled to set off as return premium one 
 
1229 
 
 RETURN PREMIUM. 
 
 1230 
 
 When it shall be returned. 
 
 and three quarters per cent on the sum in- 
 sured, and half per cent, for the non-use of 
 Buenos Ayres. Waters e. Allen-, 5 Hill, 431. 
 
 12. The insured is entitled to a return of 
 premium when he insures iu his own name 
 and pays for the whole insurance, if it aj)- 
 pcars that he is entitled to recover for a part 
 only. Finney t>. Wai-ren Ins. Co., 1 Met, 16. 
 
 13. Insured is entitled to recover premium 
 if policy is invalid, and he was not guilty of 
 fraud in procuring it Mutual Ass. Go. v. Ma- 
 ao»,5 Call, 517. 
 
 14. If the whole risk is not run, the insurer 
 shall have only a proportionate part of the 
 premium. Stevenson «. Snmo, 3 Burr., 1237 ; 1 
 W. BI., 315. 
 
 15. From Hull to Bilboa. "Warranted to 
 depart from England with convoy." She 
 sailed from Hull to Portsmouth, Qience with 
 convoy, which was not direct for Bilboa. She 
 was afterwai'ds captured. Held, there should 
 be an apportionment of the premium; that the 
 insurers were entitled to retain so much of it 
 as would cover that portion of the voyage 
 from Hull to Portsmouth. Jtotkwell v. Gooke, 
 1 B. & P.. 173. 
 
 16. Defendant paid moneys into court, but 
 established a defense, on the ground that the 
 policy never attached. Held, the plaintiff was 
 entitled to a verdict for return premium. Pen- 
 tonv. Lee, iB.& P., 330. 
 
 17. At and from Oporto to Lima, with lib- 
 erty to touch at any ports on the coast of Por- 
 tugal, to join convoy at Lisbon, to return £6 
 if she sailed with convoy from the coast of 
 Portugal and arrive. She sailed with convoy 
 for Lisbon, whence she was ta proceed with 
 the Lisbon trade ; but the fleet was dispersed 
 by a storm, between Oporto and Lisbon, and 
 she ran for England and arrived. Held, she 
 had a right to stay at any of the ports of Por- 
 tugal to obtain convoy, or to sail direct for 
 England without one; hence, the insured 
 was entitled to a return premium. Audley v. 
 Ihiff, 3 B. & P., Ill ; Everard c. HolKngworth, 
 id., note. 
 
 18. If no risk was upon the insurer, he can 
 not retain the premium, it appearing that the 
 plaintiff contemplated a legal and not an ille- 
 gal voyage (the illegality rested upon a fact 
 contrary to the reasonable expectation of all 
 parties). Henty v. Btaniforth, 1 Stark., 254. 
 
 19. The insured is entitled to have the pre- 
 mium returned if the policy was avoided by 
 
 fraud. 
 
 a misrepresentation made without 
 Feise v. Parkinson, 4 Taunt., 640. 
 
 20. The policy stipulated to return part of 
 the premium " if she sails with convoy and 
 arrives." There was an average loss. Held, 
 insured was entitled to the whole return pre- 
 mium stipulated in the policy. Simond v. Boy- 
 dell, 1 Doug., 268. 
 
 21. " Warranted to depart with convoy." If 
 the warranty was not satisfied, the insured is 
 entitled to recover the premium. Long ». Al- 
 lan, 4 Doug., 377. 
 
 22. The premium shall be recovered back 
 when both parties contemplated the procure- 
 ment of a license, but which was afterwards 
 declared invalid. Henry v. Btaniforth, 4 
 Camp., 370. 
 
 23. Insurance made in England from a port 
 in Russia to London, for a Russian subject 
 abroad, before knowledge of hostilities had 
 reached either party. Held, no fault was im- 
 putable to either for entering into the contract, 
 notwithstanding the policy was void. Oom i>. 
 Bruce, 13 East, 325. 
 
 24. " Warranted free from capture and seiz- 
 ure ; to return seven per cent, for arrival." She 
 arrived but was seized and condemned. Held, 
 the insured was entitled to a return of seven 
 per cent. Dalgleish v. Brooke, 15 East, 295. 
 
 25. "Warranted to sail with convoy." Stip- 
 ulated : " If she sails with convoy and ar- 
 rives," certain premium shall be returned. 
 She sailed with convoy and arrived, but she 
 had been captured and recaptured, for which 
 the insurer had been compelled to answer. 
 Held, the insured was entitled to the agreed 
 amount of return premium. Aguilar v. Badgers, 
 7 Term, 431. 
 
 26. Where the policy never attached, the 
 premium must be returned. Homeyer v. Lush- 
 ington, 15 East, 46; 3 Camp., 85. 
 
 27. Where both parties contemplated a legal 
 voyage and a legal contract, but they are mis- 
 taken, the insured shall recover back the pre- 
 mium. Hentig v. Btaniforth, 5 Mau. & Sel., 
 123. 
 
 28. Insurance was made April 13th by five 
 several policies on a cargo of cotton then at 
 sea. On the following day news of the vessel's 
 safety arrived, and further insurance was made 
 by six different policies, the latter added to the 
 former, exceeded the value of the cotton ; but 
 the former did not. Held, insured were en- 
 titled to have, the premium returned on the 
 
 615 
 
1231 
 
 RETURN PREMIUM. 
 
 1233 
 
 When it shall not be returned. 
 
 an^ount of over insurance to which the insur- 
 ers of the 13th must contribute in proportion 
 as the sums by them respectively insured 
 sliould bear to the over insurance; but that no 
 return of premium should be allowed against 
 the policies made on the 12th. Fiakv. Master- 
 man, 8 Mee. & W., 165 ; 10 L. J. Ex., 306. 
 
 29. Though the policy was void on account 
 of the fraud of the insured in procuring it, the 
 premium must be returned. Whittingham v. 
 Thm-nhurgh, 2 Vern., 206; Pr. in Ch., 20; 
 Da Costa v. Scandret, 2 P. Wms., 170; over- 
 ruled, Tylei' v. Jlern; Chapman v. Frazer; Park 
 on Ins., 318, 3d Lond. Ed. ; Marsh on Ins., 652. 
 
 30. Policy was void under 14 Geo. Ill, ch. 
 48, sec. 2, because the name of the person in- 
 terested was not inserted. Held, insurer was 
 liable for the premiums paid, for the parties 
 were not in pari delicto. Dowker v. Canada 
 Life Ins. Co., 24 U. C. Q. B., 591. 
 
 II. When it shall not be eetuened. 
 
 1 . If the insured, by deception and false 
 Ijretenses, induces his insurer to accept the 
 risk", which he would have refused or would 
 have been taken on different terms had the 
 truth been disclosed, it is such a fraud as de- 
 feats the right to a return of premium. Schwartz 
 V. United States Ins. Co., 3 Wash. C. C, 170. 
 
 2. Policy provided in writing: "To return 
 fifteen per cent, in case insurance has been 
 effected in Europe ; " also if the insured has 
 made any other prior insurance, this insurer 
 shall be answerable only for so much as the 
 prior insurance shall be deficient, etc., and 
 shall return the premium, etc. Insurance was 
 afterwards effected on same goods at Ham- 
 burg. Held, no return premium could be 
 allowed in consequence of the insurance taken 
 at Hamburg. JVew York Ins. Co. v. Thomas, 
 3 Johns. C, 1. 
 
 3. On goods dated December 21, 1808. "At 
 and from Bristol to New York, warranted to 
 have sailed between October 20th and Decem- 
 ber 1st." The cargo was all in before Decem- 
 ber 1st. She sailed between December 3d 
 and 21st. Held, the policy attached and cov- 
 ered the goods while they were in port; that 
 the warranty applied to the sailing and did 
 not relieve the insurer against risk in port, 
 hence there could be no return of premium. 
 Hendricks v. Commercial Ins. Co., 8 Johns., 1. 
 
 4. The insured cannot, by giving notice of 
 616 
 
 his intention to do so, put an end to the con- 
 tract of insurance, and if the risk commences, 
 the insurers are entitled to return the whole 
 premium or recover it Neu) York Mwrine 
 and Fire Ins. Co. v. Roberts, 4 Duer, 141. 
 
 5. A fraudulent concealment of any fact 
 material to the risk destroys the right to a re- 
 turn premium. IIo}/t v. GKlman, 8 Mass., 335. 
 
 6. The insured cannot have a return of pre- 
 mium from a mutual fire insurance company, 
 because by force of the policy lie is a member 
 of the company ; and with stronger reason no 
 return of premium can be allowed, when the 
 Ijolicy has been obtained by fraudulent mis- 
 representations. Friesmiih v. Agawam Mutuui 
 Fire Ins. Co., 10 Cush., 587. 
 
 7. R., the local agent, issued a policy on the 
 life of L., for the benefit of the brother of L. 
 By a secret agreement between K. and the 
 brother of L., R. was to pay the premiums, 
 which were to be refunded whenever the 
 money should be collected on the policy, to- 
 gether with $1,000 of the sum insured in case 
 L. should die within three years. L. knew 
 nothing of the existence of the policy, was 
 never examined for it, and his brother had no 
 interest in his life except that whicli existed 
 by relationship between them. In the appli- 
 cation made for the policy, insured stated that 
 he was interested to the full amount insured. 
 The first premium, $535, was paid' to insurer, 
 who subsequently canceled the policy, and 
 tills action was brought to recover the money 
 back. Held, the transaction was fraudulent; 
 that the mere relationship between the insured 
 and L. was not such an interest as would sup- 
 port the policy, but the plaintiff was estopped 
 to show a want of interest in the life insured. 
 Lewis V. Phmnix Mutual Life Ins. Co., 39 Conn., 
 100. 
 
 8. At and from Norfolk to Curacoa, with 
 liberty of going to any other island in the 
 West Indies, or any one port on the Spanish 
 Main, and at and from thence back to Rich- 
 mond. To return five per cent, if she did not 
 proceed to another port, and five per cent, if 
 no loss happened. She was chased by an 
 armed vessel, ran into St. Thomas, where she 
 sold the cargo, and took return freight for Nor- 
 folk. i/£i!(!, no return premium was due. Ma- 
 rine Ins. Go. «. Stras, 1 Muraf., 408. 
 
 9. A time policy for one year on sh^). She 
 was captured about two months after the pol- 
 icy was made. Held, the risk was entire, and 
 
1233 
 
 RETURN PREMIUM. 
 
 1234 
 
 When it shall not Ije returned. 
 
 there could he no return of premium. Tyrie 
 t. Fletc/ier, Cowper, 666. 
 
 10. At and from Surinam to London. She 
 arrived at Surinam, and lay there for some 
 time, during which she took in a cargo val- 
 ued at £6,000, and sailed on the home voyage, 
 hat grounded at the month of the Surinam and 
 was lost. It was admitted that she was not sea- 
 worthy for the voyage. Held, although she 
 was not seaworthy for the voyage, she was sea- 
 worthy for port; that the policy attached in 
 port, and therefore there could be no return of 
 premium. Annen. v. Woodman, 3 Taunt., 399. 
 
 11. The policy was altered by words added 
 which materially changed the instrument. 
 Held, there could be no return premium. 
 LangJwm c. Gologan, 4 Taunt., 330. 
 
 12. On a Danish ship from Bengal to Copen- 
 hagen. She loaded at Calcutta contrary to the 
 12 Car. II, ch. 18, sec. 1. The policy was eflFected 
 previous to the passing of 87 Geo. III. Held, 
 the trading contravened the regulations of the 
 former statute, and the insured was not enti- 
 tled to a return of premium, because the con- 
 tract was illegal. Morek «. Abel, 3 B. & P., 35. 
 
 1 3. The insured is not entitled to a return 
 of premium if the contract was legal when the 
 risk commenced. Ihirtado v. Modgers, 3 B. & 
 P., 191. 
 
 14. Insured had no insurable interest, but 
 the ship arrived safely, and he brought this 
 action to recover back the premium. Held, 
 tlie court would not interfere' to assist either 
 party for pari delicto, etc. Lovory ■o. Bordieu, 
 2 Doug., 468. 
 
 15. When the ship is insured for twelve 
 months at the rate of so much per cent, per 
 month, though the policy cease at the end of 
 two months, there shall be no apportionment 
 nor return of premium. Loraine v. Tlumlin- 
 ton, 2 Doug., 585. 
 
 16. On ship and cargo at and from A. toB. 
 during her stay and trade there, thence to her 
 port or ports of discharge in C. and at and 
 from thence back to A. Held, an entire con- 
 tract. Bermon v. Woodhridge, 2 Doug., 781. 
 And a loss happened after the commencement 
 of the risk. Eeild, there could be no return of 
 premium. Ibid. 
 
 17. " On ship and freight." After her safe 
 arrival, plaintiflF learned that he had no title 
 to the ship. Held, after the risk was deter- 
 mined in favor of the insurers, it was too late 
 to claim return of premium on the ground of 
 
 no insurable interest. McCulloch v. Royal Ex- 
 change Ass. Co., 3 Camp., 406. 
 
 18. If the policy has attached there shall be 
 no return of premium. Moaea D.Pratt, 4 
 Camp., 297. 
 
 19. The policy stipulate 1 to return a part 
 of the premium if she should be sold or laid 
 up " for every uncommenced month." Held, 
 it meant laying up for the winter or season 
 without being employed again during the cur- 
 rent year. Hunter v. Wright, 10 B. & C, 714; 
 8 L. J. (K B.), 259. 
 
 20. Insurance was made covering a voyage 
 that was illegal. Held, there could be no re- 
 turn of premium. Fandyek v. Hewitt, 1 
 East, 96. 
 
 21. Captors insured a ship taken as prize, 
 but it afterwards turned out that she was no 
 prize, and restitution was ordered. Held, they 
 were not entitled to return premium. Bcehm 
 V. Bell, 8 Term, 154. 
 
 22. She was without a license from the 
 South Sea Company at the commencement of 
 the risk and up to the time of the loss; hut 
 one was procured before insured knew of the 
 loss. Held, it could not operate retrospective- 
 ly; that the goods having been acquired 
 within a district prohibited, except by license 
 from the South Sea Company, there could be 
 no return of premium. Cowie «. Barber, 4 
 Mau. & Sel., 16. 
 
 23. From New Orleans and Pensacola to a 
 port in the United Kingdom. Pensacola was 
 under Spanish dominion and New Orleans 
 under United States. The latter nation and 
 England were at war. Held, the insured 
 could not recover back the premium, though 
 no cargo was put on board the ship named. 
 Palyart v. Leekie, 6 Mau. & Sel., 290. 
 
 24. In consideration of 40 guineas for £100 
 and in proportion for every sura greater or 
 lesser, several persons each for themselves 
 severally agreed to pay the several sums set 
 opposite their names, provided, Brazilian min- 
 ing shares should on or before a day men- 
 tioned " be done " at or above £100 per share. 
 Held, it was a contract of insurance and void 
 under Geo. Ill, oh. 48; that if money be paid 
 on an illegal contract to receive a larger sum 
 upon a certain event, when the event takes 
 place, the contract is executed and the premi- 
 um paid cannot be reclaimed, and that hav- 
 ing taken place in this case, the plaintiff was 
 not entitled even to a return of the premium 
 
 017 
 
1235 
 
 REVIVAL OF POLIOY — SAILING OF VESSEL. 
 
 1236 
 
 What is. 
 
 paid. Paterson ». Powell, 3 L.. J. (N. S.), C. P., 
 13. 
 
 as. Vessel insured from Liverpool to Pliil- 
 a^elpliiat and United Kingdom. Insurers con- 
 sented tliat slie might proceed to Baltimore 
 instead of Pliiladelphia, and subsequently 
 indorsed : " In consideration of an additional 
 liremiurtt of f per cent., it is hereby agreed to 
 allow the vessel to g© to Antwerp." She ar- 
 rived there January 1st, was ordered by tele- 
 gram, on the 3d, to sail for Leith. Slie was 
 then ia the outer on her way to the inner 
 dock, the usual place of discharge^ She 
 sailed on the 7th for Leith, and was lost on 
 the voyage. Held, the voyage to Leith was 
 not covered, and whether insured could re- 
 cover back the additional permium must de- 
 pend upon whether the voyage had come to 
 an end at the time the memorandum was in- 
 dorsed, namely, January 3d. Held, also, the 
 voyage was not at an end when the agreement 
 was made, for while she was in the outer 
 dock, the sailors would not have been at lib- 
 erty to leave her, though employed for that 
 voyage only (citing Samuel v. Boyal Exchange 
 Ass. Co., 8 B. & C, 119. Stone v. Maritie Ins. 
 Co., 1 Ex. D., 81. 
 
 REVIVAL OF POLICY. 
 
 (See Policy.) 
 
 ROVERS AND ROBBERS. 
 
 (See Caftube and Seizube ; Theft and Bobbebt.) 
 
 SACRIFICE. 
 
 (See Qenebal Avebaqe.) 
 
 SAFELY LANDED. 
 
 (See UxTn, Uoobed in Good Satbit.) 
 618 
 
 SAILING OF VESSEL. 
 
 I. What is. 
 
 II. NOT. 
 
 III. Op the rbpubsentation as to time op 
 
 SAILINO. 
 
 IV. Evidence op. 
 
 I. What is. 
 
 1. In the margin of the policy these words 
 were written : " Sailed early in October." 
 Her clearance was dated September 15th, at 
 which time she dropped down from the wharf 
 at Savannah to a place called Five Fathom 
 Hole, about three miles from the town. She 
 proceeded to Cockspur, where, according to 
 the custom, vessels of heavy burden finished 
 their lading and overhauled their rigging. 
 The master was taken sick; she remained 
 there sixteen days, and sailed on the first 
 or second day of October. BM, the words, 
 sailing, meant going to sea from C/OCkspur. 
 Dennis v. Ludlow, 3 Caiucs, 111. 
 
 2. Where a ship is ready for sea, and it is 
 the intention of the master to proceed to sea, 
 and she leaves her moorings for that purpose 
 and afterwards is stopped by head winds and 
 comes to anchor, intending to proceed so soon 
 as wind and weather will permit; this is sail- 
 ing on the voyage. Bowen v. Hope Ins. Co., 
 20 Pick., 275. 
 
 3. Warranted to have sailed on or before 
 August 1st. She sailed before that date with 
 all her cargo and clearance on board, to the 
 usual rendezvous, fur the sake of joining con- 
 voy there. Held, the warranty was satisfied. 
 Bond V. Nutt, Cowper, 601 ; 1 Dcjug, 367 n. , 
 
 4. At and from Leghorn to Jamaica, thenoQ 
 to Liverpool; warranted to sail from Jamaica 
 on or before August 1st next. She took her 
 cargo and papers and set sail from Savannah 
 La Mar in Jamaica, August 1st, for Blueflelds, 
 five miles distant, the general rendezvous for 
 convoy ; but an embargo had been laid July 
 35th on all vessels at the island. The master 
 returned in a boat to Savannah La Mar, and 
 made protest on account of the embargo, 
 which was not taken off till August 9th. 
 Held, if the master expected to find convoy 
 ready that day at Blucfields (which was a 
 question of fact fbr the jury), the warranty 
 was satisfied. Ewrle o. Harris, 1 Doug., 357. 
 
1237 
 
 SAILING OF VESSEL. 
 
 1238 
 
 What is not. 
 
 . 5. Warranted to sail before December 
 Stst. She took all her cargo and departed 
 from the port of loading before that day to 
 another part of the island, in the direct 
 course of her voyage, with the intention of 
 joining convoy there. She came to anchor 
 and the master went ashore. The governor 
 of tJie island would not permit him to depart, 
 and to prevent it, took his ship's papers from 
 him. She sailed with convoy January lOtli. 
 Hdd, there was a lawful bonajide sailing with- 
 in the time limited. Thellusson v. Fergusson, 
 1 Doug., 360. 
 
 6. "Warranted to sail from Portneuf to 
 London, on or before October 38th, and to re- 
 turn three per cent, for convoy." It was sub- 
 sequently modified by annulling the warranty, 
 and insurers agreed to return six per cent, if 
 she should sail with convoy on or before Oc- 
 tober 31st. She completed her lading and 
 sailed from Portneuf, October 26th. All ves- 
 sels were required to clear from Quebec. Slie 
 took several seamen at Quebec, got her sailing 
 instructions on the 27th and clearance on the 
 29th. On the 28th, the convoy dropped down 
 fifteen leagues below, but within the limits of 
 the port of Quebec. She joined convoy on 
 the 30th, not being able to procure pilot be- 
 fore. All cleared out of the port of Quebec, 
 October 31st. Held, the insured was entitled 
 to a return of nine per cent., notwithstanding 
 she was totally lost on the voyage. Sididale 
 V. Shedden, 4 Camp., 107. 
 
 7. " Warranted to sail from Demarara on or 
 before August 1st." There was a shoal off the 
 coast about ten miles, and large ships usually 
 discharged and took on part of their cargo 
 outside of it. She completed her cargo in the 
 river on the 1st and cjeared, but came to 
 anchor two miles from the shoal. On the 3d 
 she crossed the shoal, and was lost on the 8th. 
 Held, the warranty was satisfied. Lang v. An- 
 dffrdon, 3 B, & C, 495; 1 C. & P., 171, 480; 3 
 L. J. K. B., 62; 5 D. & R., 393. 
 
 8. Warranted to sail on or before August 
 1st. She sailed from her last port of loading 
 before that date, ran into Tortola to seek con- 
 voy, but did not leave there till some days 
 after. Held, the warranty was satisfied. 
 Wright ». Bhiffner, 11 East, 515; s. c, 2 
 Camp., 247. 
 
 9. Waranted not to sail for British North 
 America after August 15th. She was then in 
 dock at Dublin, ready for sea, and cleared for 
 
 Quebec. She was hauled out into the LilTey 
 as early in the afternoon as the tide allowed ; 
 but a strong wind, blowing directly up the 
 river, prevented the setting of any of lier sails. 
 She was warped down about half a m ile. The 
 tide fell and she took the ground. The next 
 day she was warped further down ; when the 
 tide fell she took the ground again, being ten 
 miles from the mouth of the harbor. The 
 wind changed on the 17lh, she set sail, put to 
 sea and was lost on the voyage. Held, she was 
 prosecuting the voyage on the 15th, and the 
 warranty was satisfied (affirming s. c, 3 L. J. 
 (N. S.) Ex., 185.) Fiiher v. Cochran, 5 Tyrw., 
 496; 8. c, 4 id., 424; 8. c, 2 Gromp. & M., 
 581 ; 4 L. J. (N. S.) Ex., 328; 1 Cromp., M. & 
 R., 809. 
 
 10. Warranted to sail on or before August 
 15, 1861, to and from Lyons to Galatz. It 
 appeared they could not pass down the Rhone 
 to Marseilles with her masts and rigging 
 standing. Held, sailing from Lyons before 
 August 15th, in a condition safe for the river 
 navigation, with an intention to put in the 
 masts and bend die sails at Marseilles for the 
 sea voyage, was a sailing within tlie time lim- 
 ited. Bouillon 1). Lapton, 15 C. B. (N. S.), 113 ; 
 s. c. 10 Jur. (N. S.),422; 33 L. J. C. P., 37; 11 
 W. R., 966 ; 8 L. T. (N. S.), 575 ; 3 P. & F., 726. 
 
 II. What is 
 
 NOT. 
 
 1. Warranted to sail on or before July 26th. 
 She was ready and would have sailed before 
 that date, but was detained by an embargo ; 
 sailed afterwards and was lost. Held, the war- 
 ranty was broken. Hore v. Whitmore, Cow- 
 per, 784. 
 
 2. " Warranted to sail on or before August 
 10th." The whole of her cargo and passen- 
 gers were on board on the 10th. She yiasi 
 moored by two anchors, one of them weighed, 
 some of the sails set; she proceeded about 
 thirty fathoms, heaving in the cable, when a 
 very heavy swell set into the bay. The mas- 
 ter being afraid to depart that night, noth- 
 ing was done until the 11th, when she left 
 port. Held, not a sailing; that the insurers 
 were discharged. Nel»on v. Salvador, Moo. & 
 M., 309 ; Meyer v. Chreyson, 3 Doug., 402. 
 
 3. Warranted to sail on or before October 
 28th. She sailed, but without a sufficient 
 crew, and was obliged to stop at Quebec to 
 take seamen and get her custom house clear- 
 
 619 
 
1239 
 
 SAILING OF VESSEL. 
 
 1210 
 
 Of the representation as to the time of sailing — Evidence of. 
 
 ance, but for want of a pilot there she did not 
 leave till the 30th. Held, not a sailing on 
 the 38th because she had not then a complete 
 crew or her clearances. Bidsdale v. Nemnliam, 
 4 Camp., Ill; 3 Mau. & Sel., 456. 
 
 4. Warranted to depart on or before Sep- 
 tember 15th. Held, it did not mean merely to 
 break ground for the voyage, but that slie 
 must fairly set forward upon it; that where 
 she was completely ready for sea, weighed 
 anchor, with some prospect of more favora- 
 ble weather, and was beaten hack in half an 
 hour, and came to anchor witliin the bar half 
 a mile nearer sea than her place of lading, it 
 was not a compliance with the warranty. 
 Moir 0. Boyal Exchange Ass. Co~, 6 Taunt., 
 241 ; s. c, 4 Camp., 84; 1 Marsh., 570; 3 Mau. 
 & Sel., 461. 
 
 5. On freight, subject to certain regula- 
 tions, which provided that vebsols insured 
 should not sail from iK>rts in Ireland after 
 September 1st; that the time of clearing 
 should be deemed the time of sailing, " pro- 
 vided the ship was ready for sea." She was 
 at Sligo, and dropped down the river before 
 the 1st, but had not a full quantity of ballast, 
 because she could not cross the bar with all 
 of it Boats were waiting outside to give her 
 the balance, and while crossing the bar she 
 stuck ; and, for the purpose of ascertaining the 
 damage, ran into an adjacent port without the 
 balance of ballast, which was Bubsequently 
 taken, and she sailed four days afterwards. 
 Held, dropping down the river and crossing 
 the bar without her full ballast, was not gall- 
 ing ; and until she had it on board she was 
 not ready for sea. Pettegrew v. PringU, 3 B. & 
 Ad., 514. 
 
 6. "Warranted, " Not to sail after September 
 1st." She cleared August 81st with an incom- 
 plete crew, though a full crew was engaged 
 before she cleared. She dropped down the 
 Liffey ami came to anchor within tlie port of 
 Dublin, and there remained the balance of the 
 day, during which the whole crew came on 
 board. She proceeded September 3d, an unfa- 
 vorable wind preventing her departure sooner. 
 Ildd, she was not ready for sea at the time of 
 clearing, because the whole crew was not 
 aboard, and she did not sail till after Septem- 
 ber Ist, which discharged the insurer. Gra- 
 ham *. 2?arra«, 5 B. & Ad., 1011; 5 N. & M., 
 125. 
 
 III. Of the eepeesentation as to 
 
 TIME OF SAILING. 
 
 1 . The first letter represented that she would 
 sail August 13th. The second represented 
 that she would not sail till the 34th. She 
 sailed the 16th. Witnesses testified that the 
 diflference in lime pf sailing was material. 
 Held, the insured could not recover (citing 
 Fill is ■». Brutton, Marsh. Ins. I, ch. 10, sec. 3, 
 p. 463; Bowden «. Vaughan, 10 East, 415). 
 Baxter v. Neu> England Ins. Co., 3 Mason, 96. 
 
 2. The insured gave an order for insurance 
 on cargo, and in it stated : " Said brig will sail 
 from La Plata in the course of this month." 
 Held, an emphatic confident statement of a 
 matter of opinion, but not a representation 
 that she would sail within the month (citing 
 Phillips on Ins., 83, 84; Christie v. Secretan, 8 
 Term, 192; Hubbard o. Glover, 3 Camp., 313; 
 Bowden v. Vaughan, 10 East, 415; Bryce v. 
 Peatherstone, 4 Taunt., 869 ; Jendwine v. Sladc, 
 3 Esp., 573; liice v. New England Marine Ins. 
 Co., 4 Pick., 439). Allegre v. Maryland Ins. 
 Co., 2 G. & J., 136. 
 
 3. The cause was submitted to a jury, who 
 failed to agree. It was then submitted to 
 ten persons by agreement of the parties, the 
 decision of seven or more of the whole num- 
 ber to have the force and effect of a verdict. 
 They found for the plaintiff. It appeared that 
 insured stated to the secretary of the company 
 that the ship had been at sea about seventy- 
 two days; that she had sailed between October 
 18th and 25th, but not before the 18th. She 
 sailed October 6th. Held, the verdict must be 
 set aside. Curell d. Mississippi Fire and 
 Marine Ins. Oo., 3 La. (O. S.), 353. This case 
 was subsequently submitted to the court with- 
 out the intervention of a jury, who found for 
 the defendants, and it was aflirmed. 8. c, 9 
 id., 164. 
 
 lY. Evidence of. 
 
 A minute of council directed a license to 
 the ship to carry cargo to Leghorn. Held, 
 evidence tliat she sailed for Leghorn. Mar- 
 shaU V. Parker, 2 Camp., 69. 
 
 SALE. 
 
 (See Alibnatioh; Shebiit's Sjxe; Tztlz.) 
 
 620 
 
1241 
 
 SALVAGE — SEAWORTHINESS. 
 
 1242 
 
 Miscellaneous. 
 
 SALVAGE. 
 
 (SeeABASsoiTMSiiT; Mabtekof Ship; Totai. Loss.) 
 
 SEALED INSTRUMENT. 
 
 1. The policy had upon it a printed im- 
 pression of the seal of the corporation, and 
 assumpsit was brought upon it. Held, the 
 proper action, for the instrument was not un- 
 der seal. Mitchell v. Union Life Inn. Co., 45 
 Me., 104. 
 
 2. The seal to the policy was an impression 
 upon paper at the left hand corner of the pol- 
 icy, without wax or any other adhesive sub- 
 stance, and without any scroll. Held, a sealed 
 instrument, and covenant was the proper ac- 
 tion. Howard fire and Marine Ins. Co. v. 
 Cornick, 24 111., 455. 
 
 3. The policy was sealed and renewed for 
 another year, but the renewal was by receipt 
 for the premium, not sealed. Held, the policy 
 was the contract, and that covenant was the 
 proper form of action. Herron v. Peoria Ma- 
 rine and Fire Ins. Co., 28 111., 235. 
 
 4. If the company has authority to issue 
 the policy, a failure to aflSx the common seal 
 of the corporation will not affect its validity 
 unless the charter required tlie seal to be 
 afSxed. National Banking and Ins. Go. v. 
 Knaup, 55 Mo., 154. 
 
 SEAMEN. 
 
 I. Who ABE. 
 IL Of their Rionra. 
 
 I. Who aee. 
 
 1. Stipulated : "The boat shall be manned 
 with a competent number of hands." Held, 
 in determining whether the number was com- 
 petent, the cook must be counted in. Orant v. 
 Leeington Ins. Co., 5 Ind., 23. 
 
 8. On the margin of the policy were written 
 these words : " Eight nine-pounders with close 
 quarters, six six-ponndcrs on her upper decks, 
 thirty seamen besides passengers." Held, a 
 
 warranty; but the term "seamen" included 
 boys as well as men, and to satisfy it, the 
 insui'cd were permitted to reckon the stew- 
 ard, cook, surgeon, boys and apprentices, 
 and persons described as learning to be sea- 
 men. Bean v. Stupart, 1 Doug., 11. [See 
 note appended to this case.] 
 
 II. Of theie bights. 
 
 The contract with seamen is not dissolved 
 by the wreck of the ship. They are bound to 
 labor for the preservation of ship and cargo ; 
 but that does not preclude them from claim- 
 ing salvage on the property saved, to be paid 
 by the insurers if the ship is abandoned to 
 tiiem. Tieo Catherines, 2 Mason, 319. 
 
 III. 
 
 IV. 
 
 V. 
 
 SEAWORTHINESS. 
 
 I. Wabkanty of. 
 
 (a) Wlun implied. 
 
 (b) not implied. 
 II. Onus rROBAuni. 
 
 (a) When tTie onus is upon insured. 
 
 (b) insurer. 
 When the vessel is seawokthy. 
 
 NOT SEAWOKTHT. 
 
 Of unseaworthiness subsequent to 
 attaching op policy and sailing of 
 
 VESSEL. 
 
 VI. Questions for the jury. 
 VIT. Of pleadings. 
 VIII. Generally. 
 
 I. Wakeanty of. 
 
 (a) When implied. 
 
 1. There is in every contract of insurance, 
 whether upon ship or upon cargo, an implied 
 warranty that the ship shall be tight, strong, 
 and in all other respects fit for the intended 
 voyage. Bameaall v. Church, 1 Caines, 217. 
 
 2. There is an implied warranty in every 
 contract of insurance, whether on vessel or 
 goods, that she shall be seaworthy; and it 
 makes no difference that she was surveyed and 
 pronounced, competent, if she proves not so in 
 fact. Warren v. United Ins. Co., 2 Johns. C, 
 232. 
 
 621 
 
1243 
 
 SEAWORTHINESS. 
 
 1244 
 
 Warranty of. 
 
 3. Time policy on ship, commencing Sep- 
 tember 12, 1860, at noon, elated the 14th. On 
 the 1st, she was at Bermuda undergoing re- 
 pairs, whicli were not completed until the I7th. 
 She sailed to Aspinwall, thence to Kingston, 
 thence to St. Ann's Bay and thence for Lour 
 don, July 25, 1861. Shortly after she sailed 
 from St. Ann's Bay, she sprung a leak, the 
 sugar melted rapidly, she listed heavily, feU 
 over and sunk. Hdd, on the day the risk com- 
 menced, she was seaworthy for the port in 
 which she was, hence, the policy attached; 
 but insured impliedljf warranted her seawor- 
 thy when .«ihe sailed from that port. Soxsie s. 
 Pacific Uut. Ins. Go., 1 Allen, 211. 
 
 4. There is an implied warranty of sea- 
 worthiness in a time policy. Hoxie e. Home 
 Ins. Co., 32 Conn., 21 ; Dallam v. Ins. Co., 6 
 Phila., 15. 
 
 5. On a floating dock. Seld, insured war- 
 ranted it seaworthy; and if the loss happened 
 without any known or apparent cause, the 
 presumption followed that the dock was un- 
 seaworthy, yet that presumption might he 
 rebutted by sufficient affirmative proof that 
 it was seawortliy (citing Snethen v. Mem- 
 phis Ins. Co., 3 La. An., 474; Rugely ®. Sun 
 Mut. Ins. Co., 7 id., 279). Ma^'cy v. Sun Mut. 
 Ins. Co., 11 La. An., 748. 
 
 6. " On salvage." She had been abandoned, 
 but was taken by salvors, in whose interest 
 this policy was eflfected from Terceira to a 
 final port of discharge in the TJ. K. Plea: 
 she was not seaworthy when she set sail on the 
 voyage mentioned. Held, a good defense. 
 KniU V. Hooper, 2 H. & N., 277 ; 26 L. J. Ex., 
 377. 
 
 7. On ship for twelve months. She was 
 then on the plaintiff's premises in London, 
 undergoing repairs. She sailed February 3d 
 for Gottenburg and arrived on the 7th, but 
 leaked on the voyage to an extent not 
 warranted by the weather. She sailed for 
 London February 11th, encountered very bad 
 weather, made a great deal of water and 
 finally became water logged, She was strand- 
 ed on the English coast February 15th and 
 became a total loss. The jury fajled to agree 
 as to whether she was unseaworthy when she 
 sailed from London, but they found, that if 
 she were, insured did not know of it, nor 
 could they agree as to whether the unsea- 
 worthiness was the cause of the loss. Held, 
 by a majority of the court, there was an 
 
 implied warranty of seaworthiness, at the com- 
 mencement of the voyage, and if she was not 
 then seaworthy plaintiff could not recover. 
 Dudgeon v. Pembroke, 1 Q. B. D., Ex. Ch., 
 96 ; reversing s. c, 9 L. R. Q. B., 581 ; 43 L. J. 
 Q. B., 230; 23 W. R., 914; 81 L. T. (N. S.), 31. 
 
 (b) WTien not implied. 
 
 8. The insured on cargo warrants that tlie 
 ship shall be seaworthy at the time of her 
 sailing; he does not warrant that she shall be 
 so at the time she takes cargo on board. 
 Merchants Ins. Go. v. Glapp, 11 Pick., 56. 
 
 9. Stipulated: "This insurance is declared 
 to be one-half the value of all sliipments to 
 assured, for sale or in which tliey have an 
 interest, between the date hereof and the 1st 
 day of December next, on board all steam- 
 boats or vessels approved by this company." 
 Held, insurers could not raise the want of 
 seaworthiness, because by approving her, they 
 admitted that she was seaworthy. Marine 
 fire Ins. Go. -e. Burnett. 39 Tex., 433. 
 
 10. On ship from September 25, 1843, to 
 September 24, 1844, lost or not lost. It seems 
 slie was at sea when the policy attached in a 
 greatly damaged condition. Held, there was 
 no imjilied warranty of seaworthiness at the 
 commeacemeut of the risk. Small v. Gibson, 
 16 Q. B., 141 ; 20 L. J. Q. B., 152; 15 Jur., 325; 
 Michael v. Tredwin, 17 C. B., 551; SS L. J. 0. 
 P., 8S; Small «. Gibson, 16 Q. B., 141; affirmed, 
 4 H. L. Cas., 353 ; oyerrulipg Small v. Gibson, 
 16 Q. B., 128; 19 L. J. Q. B., 147; 14 Jur., 368. 
 
 11. Time policy on ship. Plea: "Th.it 
 after the making of the policy and before 
 it expired, while she was lying safely at 
 anchor in Madras roads, she became unsea^ 
 worthy, not by reason of any of the risks or 
 perils covered by the policy, but by reason of 
 the desertion of a great number of her crew, 
 and not otherwise; that without any neces- 
 sity for so doing, and before a fit and proper 
 crew were procured, which might have 
 been procured, she proceeded on her voy- 
 age, and by reason of her being so im- 
 properly manned and equipped, she wtut 
 ashore and was wholly lost." Held, in a voy- 
 age policy, custom and decision have annexeil 
 to that contract a warranty of seaworthiness, 
 that there is no custom nor decision which 
 warrants the court in saying,- that in a time 
 policy any such warranty attaches (citing Gib- 
 
1245 
 
 SEAWORTHINESS. 
 
 1346 
 
 Onus piobandi. 
 
 son «. Small, 4 H. L. Cas., 853). Jenkins v. 
 Eegeoek, 8 Moore, P. C. C, 851 ; 5 Moore Ind. 
 App., 361. 
 
 12. Time policy " On ship lying in tlie port 
 ot Sunderland," where plaintiffs resided. She 
 was then under charter to carry a cargo thence 
 to Constantinople. Plea stated, that plaintiffs 
 sent her to sea in an unseaworthy condition, 
 and in a condition not fit and proper to safely 
 go to sea, and while she was in tliat condition 
 she was lost. Held, no defense to the action, 
 hecause there was no implied warranty of sea- 
 worthiness under the contract. Another plea, 
 in addition to what was stated in the first, 
 alleged that the plaintiff's knowiagly, willfully 
 and wrongfully sent the ship to sea in an 
 unseaworthy state. Seld, cUso, not better than 
 the first, because there was no averment in it 
 that the loss was the result of her unseaworthy 
 condition. Held, also, that a plea which 
 stated that the insured sent her to sea at a 
 time when it was dangerous for her to go in 
 the state and condition in which she then was, 
 and wrongfully and improperly caused and 
 permitted her to be and remain at sea in that 
 state and condition, and without a master and 
 proper crew to navigate her, and that during 
 that time and by reason of the premises, she 
 was wrecked and wholly lost, was a bar to the 
 action, not because she was unseaworthy at 
 the time the policy attached, but because the 
 loss was produced by the wrongful act of the 
 insured. T^ompsoroB.iTopper, 6 El. &B1., 172; 
 25 L. J. Q. B., 240; 2 Jur. (N. S.), 608. Upon 
 the trial, the court did not leave it to the jury 
 to find whether or not the moving cause of the 
 loss was the sending of the ship to sea in an un- 
 seaworthy condition which made it necessary 
 to detain her in a dangerous ccmdition for a 
 considerable time, but the judge directed the 
 jury to find " whether or not the loss was at- 
 tributable to any or all the particular grounds 
 of unseaworthiness." Held, error. The jury 
 must be directed to find, not only whether 
 the loss was attributable to all or any of the 
 alleged causes of unseaworthiness, but 
 whether the loss was, in the opinion of the 
 jury, occasioned by any wrongful act or de- 
 fault in the plea alleged, s. c, 6EI. «fc Bl., 937 ; 
 B. c, 3 Jut. (N. 8.). 133 ; 26 L. J. Q. B., 18. But 
 upon appeal in the exchequer chamber the 
 last judgment was reversed, and it was Jield 
 that the act of the plaintiff in knowingly 
 sending the ship to sea could not relieve the 
 
 insurers from liability, unless that was the 
 immediate cause of the loss. s. c, El. Bl. & 
 El. (06 E. C. L.), 1038; 5 Jur. (N. 8.), 93; 27 L. 
 J. Q. B., 441. 
 
 1 3. Time policy made at Liverpool upon a 
 vessel there in port.. She sailed in an unsea- 
 worthy condition and encountered nothing 
 more than the usual and ordinary weather on 
 such a voyage; she was compelled to put 
 into a port to make repairs. Held, the policy 
 attached; but if the loss was not the result of 
 sea perils encountered after the policy attached, 
 insurers were not liable. Pawcus v. Sarsfleld, 
 6 El. & Bl., 192; s. c, 2 Jur. (N. 8.), 665; 25 
 L. J. Q. B., 249. 
 
 14. It was averred in the declaration that 
 the insurers agreed the ship was seaworthy for 
 the voyage. Held, the admission amounted 
 to a dispensation of the usual warranty of sea- 
 worthiness; that if she had foundered in a 
 perfectly calm sea from a leak occasioned by 
 rottenness the day after the policy was made, 
 the insurers would have been liable. Parfitt 
 V. Thompson, 13 Mee. & W., 392; 14 L. J. 
 Ex., 73. 
 
 II. Ojsnis PEOBANni. 
 (a) WTien the onus is upon vnsv/red. 
 
 1. When it is shown that the incapacity of 
 the ship to proceed is fairly attributuable to 
 sea damage, the onus probandi is cast upon 
 the insurers to show that she was unseaworthy 
 at the commencement of it. Barnewall v. 
 Church. 1 Gaines, 217. But tlie law presumes 
 her unseaworthy if she becomes incapable to 
 proceed on the voyage, unless adequate cause 
 be shown to occasion the damage ; and then 
 the onus probandi is shifted upon the insured. 
 Ibid. 
 
 2. Where there is no adequate cause .shown 
 to produce the injury which led to the 
 loss, the presumption is that she was not 
 seaworthy at the commencement of the voy- 
 age. Talcot V. Commercial Ins. Co., 2 Johns., 
 124. 
 
 3. There is no presumption that the vessel 
 is seaworthy when she commences her voy- 
 age ; some evidence must be given tending to 
 show that fact. Moses v. Sun Mut. Ins. Co., 1 
 Duer, 159. 
 
 4. If the ship sails in an apparent seaworthy 
 condition, and was never heard of, the law 
 presumes she was lost by a peril of the sea; 
 
 623 
 
1247 
 
 SEAWORTHINESS. 
 
 1248 
 
 Onus probaadi. 
 
 but if she springs a lealc in moderate weather 
 and founders, the law presumes she was un- 
 seaworthy, and casts the burden of proof upon 
 the insured to show that she was seaworthy at 
 the commencement of the voyage. Paddock n. 
 Franklin Ins. Co., 11 Pick., 227. 
 
 5. The burden of proving seaworthiness lies 
 on the insured ; but if it appears that the loss 
 may be fairly imputed to sea damage or any 
 other misfortune, and the insurer defends" ou 
 the ground that she was not seaworthy, the 
 burden is then thrown upon him. Brown v. 
 Girard, 4 Yeates, 115. 
 
 6. The sherifi levied upon her, and insured 
 her in his own name against harbor risks in 
 the port of New Orleans. She sank about 
 two o'clock in the night, and neither party 
 was able to assign the specific cause of the 
 disaster. Held, the presumption followed that 
 she was not seaworthy ; but the plaintiff had 
 the right to rebut this presumption by proof. 
 Parker v. Union Ins. Co., 15 La. An., 688. 
 
 7. On cargo. She sprung a sudden leak 
 while in port during fine weather, and sank at 
 her moorings. Evidence was given tending 
 to show that she had recently been put in 
 thorough repair, that careful surveys of her 
 had been made, and that after repairs she had 
 made her last voyage without exhibiting any 
 signs of unseaworthiness. No evidence was 
 given to account for the leak. Seld, the fact 
 that she sank in smooth water, without any 
 apparent cause, raised an irresistible pre- 
 sumption of unseaworthiness; but that might 
 be overcome by proof of the condition of the 
 ship, and then all of the evidence must be left 
 to the jury, for them to determine whether she 
 was seaworthy. If they found that she was, 
 then the loss must be attributed to a peril of 
 the sea, though insured were unable to ascer- 
 tain what the peril was. Anderson v. Morice, 
 10 L. R. C. P., 58 ; affirmed, id., 609. 
 
 (b) When the onus is wpon insij/rer. 
 
 8. It appeared in evidence that the vessel 
 was exposed on the voyage to severe gales. 
 Held, the burden of proof was cast upon the 
 insurer to establish her unseaworthiness. 
 Watson ®. Insurance Co. of North America, 2 
 Wash. C. C, 480. 
 
 9. If the vessel is seaworthy at the com- 
 mencement of the voyage, the presumption 
 is that she continues so, in the absence of any 
 
 624 
 
 rebutting evidence. Martin «. Fishing Int. 
 Co., 20 Pick., 389. 
 
 10. If the vessel is seaworthy at the com- 
 mencement of the risk, the warranty is satis- 
 fied, though she becomes unfit for the sea and 
 goes to the bottom very soon afterwards; yet, 
 if she sails, and within a short time becomes 
 leaky, founders, or is obliged to return to port 
 without encountering stress of weather, or any 
 visible or adequate cause to produce that eflect, 
 the presumption is that she was not seaworthy 
 when she sailed ; but such presumption is re- 
 pelled by afllrmative proof that she was sea- 
 worthy when she left port. The burden of 
 proof, however, is on the insurer to establish 
 the fact of unseaworthiness, for the law pre- 
 sumes that she was seaworthy. Stephenson v. 
 Piscataqua Fire and Marine Ins. Co., 54 Me., 
 55. And the fact that the effects of certain 
 perils encountered were not discovered at the 
 time of encounter is not conclusive proof that 
 she was not injured by them, for the policy 
 not only covers losses that occur by injuries 
 caused by extraordinary perils of the sea im- 
 mediately known, but also losses that occur 
 from latent injuries. Ibid. 
 
 11. It will be presumed that the vessel was 
 seaworthy at the commencement of the voy- 
 age, if nothing appears to repel that presnmp. 
 tion (citing Taylor v. Lowell, 3 Mass., 331 ; 
 Paddock u. Franklin Ins. Co., 11 Pick., 226). 
 Treat v. Union Ins. Co., 56 Me., 231. 
 
 12. Several witnesses testified to facts tend- 
 ing to show that she was fit for sea when the 
 voyage commenced at New Orleans. She was 
 driven into the island of St. Thomas in a dis- 
 bled condition, and there surveyed, when her 
 timbers were found very unsound. Held, this 
 was not sufiicient to overcome the prima facie 
 case of seaworthiness made by the insured. 
 Trimble's Syndics v. New Orleans Int. Co., 3 
 Martin (La.), 394. 
 
 13. On cargo on a barge in tow of a steam- 
 er, from St. Louis to New Orleans. On the 
 second day out from St. Louis the barge sud- 
 denly sprung a leak, and was in danger of 
 sinking; the steamer turned towards the shore, 
 but in doing so the barge careened, broke her 
 fastenings, turned over and sunk. No specific 
 cause could be assigned for the leak, as that 
 she struck a snag, or sandbar, or incurred any 
 other casualty; but the evidence given to show 
 tliat the barge was seaworthy, at the inception 
 of the voyage, was extremely full and con- 
 
1249 
 
 SEAWORTHINESS. 
 
 1250 
 
 When the vessel is seaworthy. 
 
 vincing. Seld, when a vessel springs a leak 
 soon after the rislc commences, without appar- 
 ent cause by perils within the policy, then un- 
 seaworthiness is presumed ; but this presump- 
 tion is overcome by proof which establishes 
 the good condition of the vessel ; and then the 
 court must presume tliat some unseen peril, 
 not specifically ascertained by the evidence, 
 was tlie cause of the loss. Snethenv. Memphin 
 Jna. Co., 3 La. An., 474. 
 
 14. On schooner, her stores and passage 
 money. She was forced to enter a port of 
 safety, and was there unjustly libeled by the 
 passengers, and condemned to refund the pass- 
 age money, on tlie ground that she was un- 
 seaworthy when the voyage con»menced. She 
 was sold to answer the decree. Held, the de- 
 cree of the court of admiralty (U. S. District 
 Court, at Key West) was not conclusive of her 
 unseaworthiness, nor that the warranty of sea- 
 worthiness at the commencement of the voy- 
 age was broken. Marks v. NashviUe Marine 
 and Fire Ins. Go., 6 La. An., 126. 
 
 15. She foundered at sea from causes un- 
 known. Held, no presumption that she was 
 unseaworthy. Smith v. Bissett, Faculty Deo. 
 1808 to 181U, p. 617. 
 
 lis. She sailed from Greenock for New Or- 
 leans. Soon after she left, tlie weather became 
 thick and hazy, she lost her reckoning, and next 
 morning ran ashore in Cushendean Bay. Insur- 
 ers claimed that the compasses were defective. 
 But several witnesses testified that they were of 
 excellent quality. JTeld, theontwwas upon the 
 defenders, to make out that the vessel was un- 
 seaworthy. M'Closkie v. Glasgow and Clyde 
 Marine Ins. Co., 6 C. C. S., 2. 
 
 III. "When the vessel is seawoetht. 
 
 1. |2,000 on brig from Fall River to Ha- 
 vana, thence to a northern port in the United 
 States, valued at |3,000. She arrived at Ha- 
 vana, took cargo of molasses and sailed ; but 
 soon alter she met a cross sea, ordinarily thrown 
 up by the meeting of the trade wind with the 
 current of the gulf stream, in which she 
 sprung a leak, and was obliged to put into 
 Key West, where she was hove out, examined, 
 and found Uiat her repairs would have cost 
 12.000; and when repaired she would not have 
 been worth that sum; a sale was recommended 
 and she was accordingly sold. Held, the jury 
 were bound to presume that she was scawor- 
 40 
 
 thy at tlie commencement of the voyage. Bul- 
 lard V. Soger Williams Ins. Co., 1 Curtis, 148. 
 
 2. If a vessel be seawoWhy at tlie time of 
 sailing, but in the course of the voyage sud- 
 denly springs a leak, and founders before she 
 encounters any extraordinary peril, it is a loss 
 by perils of the sea. Patrick v. Hallet, 1 Johns., 
 241. 
 
 3. A vessel is not unseaworthy because she 
 sails without her proper documents, unless 
 her national character is warranted or repre- 
 sented, and they are necessary to sustain it. 
 Siting V. Scott, 2 Johns., 157. 
 
 4. At and from North Carolina. Held, if 
 she was seaworthy when she passed the boun- 
 dary line of the state, the insurer was liable; 
 that her condition prior to that time was im- 
 material. Treadwell v. Union Ins. Co., 6 Cow., 
 270. 
 
 5. G. was named in her register as master. 
 He signed tlie shipping articles, also a bond 
 to the collector of customs, but he was to act 
 as purser merely. McNeil, the first mate, had 
 the whole charge of navigating the ship. He 
 was an experienced and skillful seaman and 
 navigator. Held, it was no part of the contract 
 of insurance that the name of the acting 
 master should appear in the register; if the 
 owner chooses to register the name of a per- 
 son as master who has no nautical skill or ex- 
 perience, not intended to act as master or take 
 any part in navigating the ship, or any con- 
 trol of the subordinate officers or mariners, it 
 is a matter with which insurers are not con- 
 cerned, provided, always, she is in fact put 
 under the command of a competent master. 
 Draper v. Commercial Ins. Co., 21 N. Y., 
 378 ; reversing s. c, 4 Duer, 334. 
 
 6. She left New York for Liverpool August 
 22, 1862, laden with grain. On the morning 
 of the 26th she was in a sinking condition, 
 with nine feet of water in her hold and pumps, 
 clogged. Officers and crew abandoned her, 
 and she went down an hour afterwards, one 
 hundred and twenty miles from the coast 
 There was conflicting evidence as to whether 
 she had encountered more than ordinary 
 weather, but the jury found she was sea- 
 worthy when she left port. Held, insured 
 must recover. Walsh v. Washington Marine 
 Ins. Co., 32 N. Y., 427; s. c, 3 Rob., 203. 
 
 7. She encountered severe weather in cross- 
 ing the gulf stream, met a severe gale near 
 Abaco, which compelled her to lay to for 
 
 633 
 
1251 
 
 SEAWORTHINESS. 
 
 1252 
 
 Wlien the vessel is eeaworthy. 
 
 twenty-four hours, and again a norther over- 
 took her. She sprung a leak, crew worked 
 until they were exhausted, and then took to 
 the life boat. They stayed by her till she 
 went down. Held, no presumption that she 
 was unseaworthy. Sturm n. Atlantic Mut. 
 Ins. Co., 6 J. & Sp., 381. 
 
 8. A ship is seaworthy notwithstanding a 
 failure to comply With the law, which requires 
 a certain quantity of water shall be on board 
 and well secured under deck. Warren v. 
 Manvfacturert Ins. Co., 13 Pick., 518. 
 
 9. If the vessel becomes unseaworthy dur- 
 ing the voyage and the defect is cured before 
 a loss, the insurer is liable for a loss that oc- 
 curs afterwards. Veblois v. Ocean Ins. Co., 16 
 Pick., 303. 
 
 10. Stowing on deck of all the water on 
 board, contrary to law, does not make the ship 
 unseaworthy, nor cast upon the insured the 
 burden of proving her seaworthy. Deshon «. 
 Merclumta Ins. Co., 11 Met., 199. 
 
 11. "Upon a l)ark building at Perry, to 
 take eifcct. as soon as waterborne, at and from 
 Perry to Calais, and to stop at Eastport, and 
 thence to a southern port." She was launched 
 at Perry, towed to Eastport, rigged and 
 equipped for sea, and sailed thence in a sea- 
 worthy condition for New York. Hdd, it was 
 not necessary to show that she was seaworthy 
 for the voyage to New York when she left 
 Perry; it was sufficient if she was in a condi- 
 tion to be towed safely from Perry to East- 
 port; if she was made seaworthy at Eastport 
 for the voyage to New York, the implied war- 
 ranty was satisfied. Cobb ci. New Mngland 
 Mutual Marine Ins. Co., 6 Gray, 193. 
 
 12. At and from Cape St. Francois to Phila- 
 delphia. Seld, the policy attached when the 
 vessel had been safely moored twenty-four 
 hours at Cape fet Francois, and if she was 
 then seaworthy the warranty was satisfied. 
 Qarrigues v. Ooxe, 1 Binn., 593. 
 
 13. On ship from Philadelphia to Charles- 
 ton, thence to Madeira. On leaving Charles- 
 ton she struck the bar, but proceeded to sea 
 and made much water. Eight days afterwards 
 she reached Norfclk in distress; sailed for 
 Madeira, leaving the Chesapeake Bay Novem- 
 ber 25th; but commenced to leak again, and 
 upon search made, a knot hole was found 
 which had been enlarged by the gnawing of 
 rats. She reached the roads at Eunchal, when 
 she was again obliged to put to sea to avoid 
 
 636 
 
 threatened danger, and while at sea she came 
 in collision with another vessel and received 
 great damage, and was condemned and sold. ' 
 Held, if she was seaworthy when she com- 
 menced the voyage, that was sufficient. Peters 
 V. Phcenix Ins. Co., 3 8. & R., 25. 
 
 14. She departed from St. Louis, drawing' 
 six and a half feet of water. The water in 
 the river being then very low, she could not 
 pass some of the bars without being lightened, 
 and for that purpose she was detained three 
 days at Turkey Island, her draft being reduced 
 one foot. She touched afterwards upon some 
 of the bars and logs in the river. Her pro. 
 gress, owing to her deep lading, was thereby 
 rendered very slow. Finally she ran upon a 
 reef of stumps and logs, and was lost. Held, 
 if she was overloaded, she lyas unseaworthy 
 at the commencement of the voyage, and in- 
 surers were released. But in determining 
 whether she was overloaded, the inquiry must 
 be, not as to the depth of water over which 
 she was to float, but as to her carrying capacity. 
 For if she was not loaded beyond her carry- 
 ing capacity, then she was not, in contem- 
 plation of law, overloaded, and therefore in 
 that respect not unseaworthy. Cincinnati 
 Ins. Co. V. May, 30 Ohio, 311. 
 
 15. The act of congress required a special 
 license for the transportation of gunpowder, 
 oil of turpentine, camphene, and other burn- 
 ing substances, and any violation of the law 
 subjected the carrier to a fine of $100. Seld, 
 a noncompliance with the statute did not make 
 the vessel, per se, unseaworthy. Sherlock v. 
 Globe Ins. Co., 1 Cin. Sup. Ct., 193. 
 
 16. If the brig was in good order and fit 
 for sea when she sailed, that was sufficient 
 Miller v. Russell, 1 Bay, 309. 
 
 17. On cargo. New Orleans to Brazos. 
 She lett the basin August 3d, but owing to the 
 difficulties of navigation in the Bayou St. John 
 she did not get over the bar and leave the 
 Pickets on her voyage until the 6th following. 
 On the 8th, she put into Bay St, Louis to ob- 
 tain water, made sail on the 9th, and three 
 days after was burned off Breton's Island. 
 While she lay off Bay St. Louis, the master 
 left her to visit his father-in-law, in the Bay, 
 and went aboard twenty miles from that place, 
 one or two miles from the Rigolcts, and find- 
 ing she was short of water, he stopped to ob- 
 tain it. Held, if- the vessel be unseaworthy at 
 the corameijcement of the voyage, and the de- 
 
1253 
 
 SEAWORTHINESS. 
 
 1254 
 
 When the vessel is seaworthy. 
 
 feet is cured before a loss occurs, the insurer 
 is liable (citing American Ins. Co. «. Ogden, 
 15 Weud., 533; 20 id., 287). That tlie tempo- 
 rary absence of the master constituted no de- 
 fense to tlie action. Lapene d. Svn Hvi. Ins. 
 Co., 8 La. An., 1. 
 
 18. Changeof command was prohibited, un- 
 less consented to by insurers. She was seized 
 by the sherift' at this suit of a creditor, who 
 took lier into custody, and the master and 
 crew were excluded from possession. Held, 
 this was neither a' violation of the condition 
 recited, nor was it evidence of unseaworthi- 
 ness (citing Bell v. Western Marine and Fire 
 Ins. Co., 5 Rob. (La.), 446). ItaHgny c. Home 
 Mut. Ins. Co., 13 La. An., 33». 
 
 19. She was in good condition, well offi- 
 cered and provisioned when the policies at- 
 tached February 25th, — tbey were for a 
 terra of six months till July 3d following. 
 Between 1 and 2 o'clock in the morning a fire 
 was discovered in a room on the main deck, 
 where carpenterter's tools, oils, etc., were kept, 
 which was extinguished in an hour by very 
 great exertions ; but about an hour and a half 
 thereafter she went down suddenly, the per- 
 sons on board having barely time to save 
 tlieir lives. Held, the presumption of unsea- 
 worthiness did not arise, the loss was the re- 
 sult of perils insured against. Pointer v. Mer- 
 chants Mut. Ins. Co., 20 La. An., 100. 
 
 20. Policy dated August 19, 1807, to attach 
 from August 1, 1806. At the time it was made 
 she was not competent to pursue all the pur- 
 poses of her voyage, because her crew had 
 been reduced by death and desertion. Held, 
 if the crew was sufficient when the policy at- 
 tached for some of tlie objects of the venture, 
 and could have navigated her home, she was 
 seaworthy. Hucks v. Thornton, Holt N., P., 30. 
 
 21. On ship from London to Bahia. She 
 was overladen, put into Ramsgate, where, with 
 the consent of insurers, she discharged part of 
 her cargo, and sailed on the voyage. Held, if 
 she was properly laden, and in a seaworthy 
 condition when she departed from Kamsgatc, 
 and the loss was not in any degree attributa- 
 ble to her having been overladen between 
 London and Ramsgate, insurers were liable. 
 Weirii. Aberdeen, 2 B. & A., 320. 
 
 22. On ship and freight from Sierre Leone 
 to port of discharge in the United Kingdom. 
 A number of her crew died and the remain- 
 der were much below the proportion of three- 
 
 fourths the limit of tlie navigation act, 6 Geo. 
 IV, ch. 109. She sailed with six English sailors 
 and nine or ten blacks or other foreigners, 
 being unable to obtain more English seamen. 
 Held, the law forces no man to impossibilities. 
 Held, also, the certificate of a consul or two 
 British merchants required. by the act, setting 
 forth that the due proportion of British sea- 
 men could not be procured, was satisfied, if 
 upon the trial it appeared that it was inad- 
 vertently omitted or could not have been ob- 
 tained. Suart r>. Powell, 1 B. & Ad., 266 ; 8 L. 
 J. K. B., 391. 
 
 23. The implied Warranty of seaworthiness 
 is satisfied if the ship was Seaworthy at the 
 commencement of the risk, and there is no 
 distinction in this respect between voyage or 
 time risks. HoUingworth «. Brodriek, 7 A, & 
 E., 40; 8 L. J. (N. S.) Q. B., 80; 1 Jur., 430; 3 
 N. & P., 608. 
 
 24. The defendant pleaded that there was 
 not, at the time the ship sailed on the voyage 
 or at any other time before or after, any agree- 
 ment in writing with the master and seamen, 
 speoifj'ing what wages the seamen were to 
 receive, and the capacities in which they were 
 to act. Held, though the master was liable to 
 a penalty for noncompliance with the statute, 
 the failure to have shipping articles did not 
 make the voyage illegal or render the ship 
 nnseaworthy. Redmond v. Smith, 7 M. & G., 
 457; 13 L. J. C. P., 159; 8 Scott N. R., 250; 8, 
 Jur., 711. 
 
 25. On three steamers intended for the nav- 
 igation of the Danube, " At and from Lyons 
 to Galatz, with leave to call at all ports and 
 places in the Mediterranean, for all or any 
 purpose, beginning the adventure at Lyons, 
 with leave to proceed to, sail, touch and stay 
 at any ports, etc., and with leave to tow and 
 be towed ; warranted to sail on or before Au- 
 gust 15, 1861." One of them left Lyons'July 
 12th and arrived at Marsailles the 30th. The 
 others left Lyons August 2d; and arrived at 
 Marseilles the 7th and 8th. They were all 
 seaworthy for the voyage down tlie Rhone to 
 Marseilles, but from the nature of the naviga- 
 tion could not have been made seaworthy for 
 that portion of the voyage between Marseilles 
 and Galatz. They were properly equipped at 
 Marseilles, August 23d, for the balance of the 
 voyage. One of them might have been made 
 ready for sea at Marseilles several days earlier, 
 but the master detained her that the three 
 
 627 
 
1255 
 
 SEAWORTHINESS. 
 
 1256 
 
 When the vessel is not seaworthy. 
 
 might sail together. Held, though the vessels 
 ■were not complete for the sea voyage vyhen 
 they left Lyons^ they were nevertheless sea- 
 worthy. Bouillon V. Lupton, 15 U. B. (N. S.), 
 113; s. c, 10 Jur. (N. S.), 423; 33 L. J. C. P., 
 37; 11 W. K., 966; 8 L. T. (N. S.), 57-5; 3 F. & 
 F., 726. 
 
 26. She was constructed for navigating the 
 ludus^.and on this account was unfit for gen- 
 eral ocean navigation. But insurers were in- 
 formed. of her construction and character, and 
 the purposes for which she was constructed, 
 and were tuld that she was being strengthened 
 to make her fit for the voyage from Liverpool 
 to Calcutta. Held, she was seaworthy, if at 
 the commencement of the risk she was made 
 as capable as it was possible to make her. 
 Surges v. Wickham, 3 B. & 8., 669; s. c, 33 L. 
 J. Q. B., 17 ; Olapham v. Langton, 5 B. & S., 
 729; 8. c, 34 L. J. Q. B., 46; 13 W. R., 1011; 
 lO.L. T. (N. S.), 875; 3 F. & F., 626. 
 
 27. She sailed from St. Michaels for Tena- 
 riffe and Lanzarotte, with specie and Euro- 
 pean manufactured goods. She appeared sea- 
 worthy at the time of sailing, but shortly after 
 sprung aleak, in a gale, and had five inches of 
 water in her liold the second day out. The 
 sixtli day she lay becalmed off Madeira. The 
 gale renewed its violence, and she could not 
 bear up, and so she ran for Lanyarotte. When 
 about thirty miles from it the crew were 
 obliged to abandon her. Held, a prima fade 
 case of seaworthiness was made out. Franco 
 V. Natusch, 6 Tyrw., 401. 
 
 28. The damage was caused by water flow- 
 ing in through the service pipe, the valve 
 having been negligently left open. In all 
 other respects, she was a perfectly seaworthy 
 vessel. Held, the cause of the injury could 
 not be attributed to unseaworthiness. David- 
 son v. Burnand, 4 L. R. C. P., 117 ; 38 L. J. C. 
 P., 73; 17 W. R., 121; 19 L. T. (N. S.), 783. 
 
 29. On freight from London to Honduras. 
 She took the ground September 3d, and was 
 obliged to lie in that condition for hours, till 
 the tide floated her off, but completed her 
 loading on the 82d. She took the ground 
 again October lltli, and remained fast for 
 fourteen hours. She made two and a half 
 inches of water per hour on the 13th. On the 
 14(h she took the ground, and sailed on the 
 voyage the 30th. The day after she made ten 
 and a half inches of water per hour. The 
 leak increased so rapidly she was compelled 
 
 028 
 
 to run for a port of distress, where she ww 
 surveyed and condemned. Held, she was sea- 
 worthy when the policy attached, and tliere- 
 fore insurers must be held liable. Potts o. 
 BogU, Faculty Dec, 1808 to 1810, p. 679. 
 
 30. It was alleged, that the towing ropes 
 were decayed and unfit for use. Held, not 
 evidence of unseaworthiness. Stfme v. Aber- 
 deen Marine Ins. Go., 11 C. C. 8., 1041. 
 
 IV. When the vessel is not sea- 
 
 WOETHY. 
 
 1. A vessel may be seaworthy in port or for 
 temporary purposes, such as mere change of 
 position in harbor, or proceeding out of port, 
 or lying in the offlng, and yet not be sea- 
 worthy for a voyage. M 'Lanahan v. Universai 
 Ins. Co., 1 Pet., 170. 
 
 2. Time policy on vessel. She was in her 
 home port when it was made and was to be 
 employed as a passenger vessel between New 
 York and Galveston. She entered upon her 
 first voyage in an unseaworthy condition, and 
 foundered in a few days. Held, the insured 
 could not recover. Rouse v. Insurance Co., 3 
 Wall. Jr., 367. 
 
 3. Ship is not seaworthy unless she is in a 
 condition to carry a full cargo. Abbott «. 
 Broome, 1 Caines, 392. 
 
 4. Ship sailed from Wilmington for Fal- 
 mouth with a crew of ten persons, intending 
 to touch at the Hook off New York to procure 
 seamen. Before she arrived at the point 
 dividing the direct course to Falmouth, and 
 the course to New York, she foundered. Hdd, 
 the intention to stop was evidence that the 
 crew was not competent, or that they were not 
 engaged for the voyage. SUva v. Low, 1 
 Johns. C. 184. 
 
 5. On ship from Turks Island to New York. 
 About one o'clock of the night tliat she sailed, 
 she was found to have three and a half feet of 
 water in her hold. Held, the law will intend 
 a want of seaworthiness, because no visible or 
 rational cause, other tliEin a latent and in- 
 herent defect in the vessel can be assigned 
 for the leak; that insurers do not insure 
 against latent defects. Patrick v. Hailet, 3 
 Johns. C, 76 ; overruled, 8. c, 1 Johns., 341. 
 
 6. A ship to be seaworthy must be pro- 
 vided with all necessary stores for the voyage, 
 when she sails. Fontaine v. Phmniat Ins. Co., 
 10 Johns., 58. 
 
1257 
 
 SEAWORTHINESS. 
 
 1258 
 
 When the vessel is not seaworthy. 
 
 7. The insurer may defend on the ground 
 that the vessel was uuseaworthy, by proving 
 that slie had not a competent crew, captain or 
 pilot Treadwell v. Union Iiu. Co., 6 Cow., 270. 
 
 8. On goods at and from New York by 
 steamer or steamers to Chagres, at and from 
 tlience by the usual conveyances across the 
 Isthmus, and from thence by steamer or steam- 
 ers to San Francisco. Hdd, three distinct voy- 
 ages; that if the boat which took them at 
 Chagres was not seawortliy, the defendants 
 were discharged; and it appearing that she 
 did not encounter any peril which could have 
 caused the leak, she must be presumed unsea- 
 worthy ; hence, insurers were not liable. Van 
 Valkenburgh v. Astor Mut. Ins. Co., 1 Bos., 61. 
 
 9. She sailed from Rio October 10th, made 
 sail to the southward off shore by the wind, 
 encountered a heavy swell, wind and sea in- 
 creased, she labored heavily, took in sail, 
 tried the pumps, found her making water, 
 could not keep her free until all sail was 
 taken in except two topsails. When twenty- 
 five or thirty miles from the shore, determined 
 to put hack to Rio. Held, the court must pre- 
 sume that she was unseaworthy when she 
 sailed, notwithstanding the jury found speci- 
 ally contra. Wright v. Orient Mut. Im. Go., 6 
 Bos., 269. 
 
 10. If the vessel is not seaworthy when the 
 voyage commences the insurer is discharged, 
 and her arrival at the port of destination does 
 not mend the broken warranty. And if the 
 master's protest shows that she began to leak 
 soon after she sailed, and so continued until 
 she encountered a gale, the presumption is, 
 that she had an inherent defect at the time of 
 sailing. Preseott e. Union. Ins. Co., 1 Whart, 
 398. 
 
 11. "On the iron hull stern wheel steamboat. 
 Gov. Morehead, one trip, Philadelphia to Port 
 Washington, N. C." She was new, had been 
 huilt in Philadelphia to run on the Tar river. 
 She left Philadelphia July 23d, went down 
 the Delaware and proceeded up Morris river 
 to Lecdsburgli, but the machinery failed to 
 work properly; she, therefore, put back to 
 Philadelphia, where she arrived on the 26th, 
 and while in her berth at the wharf that night, 
 she sunk and sustained large damage. Held, 
 slie was unseaworthy when the voyage com- 
 menced. Myers v. Girard Ins. Co., 26 Penn. 
 St.. 192. 
 
 12. On ship for a term of three months, lost 
 
 or not lost. At the date of the policy slie was 
 lying at Annapolis, out of repair, and drawn 
 up on a marine railway. After much work 
 was done to her, she was floated and com- 
 menced to leak. She was again put on the 
 railway and further repairs made. She sailed 
 for Baltimore, where she arrived and remained 
 for several weeks. November 12th, she cleared 
 for Washington City, and left port on the 
 morning of the 19th. At 1 o'clock P. M. the 
 valve-stem broke at the same place it had 
 broken on a previous occasion, the thread of 
 tlie screw being so much worn that the nuts 
 would not hold. There was no suitable tool 
 on board to repair it, but by the use of a file a 
 temporary repair was effected. She ran down 
 the bay for some hours, when she commenced 
 to leak badly, the water rising rapidly. A 
 plank had given way about three feet below 
 watermai'k. She was abandoned. She had 
 encountered no heavy weather, nor had she 
 run upon any obstruction. Held, the implied 
 warranty of seaworthiness was broken. Dal- 
 lam o. Insurance Co., 6 Phila., 15. 
 
 1 3. Where there was no proof of any stress 
 of weather to occasion a leak, and the goods 
 were damaged by sea water, the presumption 
 is that the vessel was not seaworthy. Field v. 
 Insurance Co. of North America, 3 Md., 244. 
 
 1 4. " On a ferry boat, to run from New Or- 
 leans to the opposite side of the river, with 
 liberty to tow vessels up and down the river," 
 etc. She landed her passengers on the oppo- 
 site side, and was properly secured at the 
 usual landing place; the evening continued 
 fine and calm; at tlie usual hour the hands 
 went to rest, with the exception of the watch- 
 man ; about half past nine o'clock a leak was 
 discovered, and she filled very rapidly; and 
 notwithstanding great efforts were made to 
 prevent it, she sunk. There was no stress of 
 weather before or at the time, nor any acci- 
 dent or circumstance arising from the perils 
 insured against Held, if she had been lost in 
 consequence of some of the perils insured 
 against, the presumption would have been in 
 favor of her seaworthiness, and the mvus 
 would have been upon insurers to show that 
 she was not seaworthy; but that as the loss 
 could not be ascriljed to stress of weather, the 
 fair and natural presumption was that she was 
 not seaworthy. Dupeyre v. Western Marine 
 and Fire Ins. Co., 2 Rob. (La.), 457. 
 
 15. On cotton from Matagorda to New Or- 
 
1259 
 
 SEAWORTHINESS. 
 
 1260 
 
 When the vessel is not seaworthy. 
 
 leans. She left port June 34th, returned the 
 26th in a sinking condition, and was beaehcd 
 for the purpose of saving the cargo. She had 
 encountered nothing but pleasant weather 
 from the time she left port until the time she 
 was found in a sinking condition, with the 
 water over the forecastle deck. Held, there 
 was no evidence that an unknown accident or 
 Xjcril of the sea was the cause of the leak, and 
 in absence of testimony to show what her con- 
 dition was at the time she commenced the 
 voyage, the court was bound to hold that she 
 was not seaworthy. Hugely v. Sun Mut. Ins. 
 Co., 7 La. An., 279. 
 
 16. She sprung a leak the day after she left 
 port, and made so much water that it became 
 necessary to abandon the voyage. She had 
 encountered no extraordinary peril. Seld, she 
 was not seaworthy. Wallace n. DePau, 1 
 Brev., 252 ; Miller v. South Carolina In». Oo^ 
 2 McCord, 336. 
 
 1 7. A number of witnesses testified : " She 
 was rotten at the commencement of the voy- 
 age ;" but they admitted she might have per- 
 formed it with good weather. Held, she was 
 unseaworthy. Hudson v. Williamson, 3 Brev., 
 342. 
 
 18. She had been lengthened, but the exten- 
 sion was not fastened with knees. Soon after 
 she left harbor several things necessary for the 
 voyage were found wanting, and she put into 
 Dundee, a place out of the course, for fuel and 
 «ordage. The old rigging was not suitable 
 for her size, and she sailed so heavily that she 
 fell behind all other vessels bound to the Bal- 
 tic. She was very leaky, and from these 
 causes, as well as the want of ballast, she put 
 into Kettero, on the coast of Norway, also at 
 Elsineur and Copenhagen, at which last place 
 she procured fuel, candles and a chart of the 
 Baltic, all of which occasioned considerable 
 delay, and instead of going to Riga, she went 
 direct to St. Petersburg. On her voyage home 
 she was lost. Held, she was not seaworthy 
 (reversing the decision of the court of session). 
 Wait v. Morris, 1 Dow, 32. 
 
 19. She sailed in ballast from Bristol to 
 Honduras, where she remained about five 
 months, taking in a cargo of mahogany and 
 logwood, during which time she grounded 
 two or three times* but was got off without ap- 
 parent material damage. Slie sailed October 
 19, 1804, and next day coinjnenced leaking, 
 which greatly increased, and on the 27th, she 
 
 630 
 
 made three and a half feet of water per hour. 
 On the 31st, she bore away for Montego Bay, 
 a port of distress, where she was surveyed. 
 The surveyors reported : " We find her copper 
 sheathed ^id iron fastened; that those fasten- 
 ings are decayed ; that three of her beams are 
 broken, the main beam in three places; that 
 she is making at the rate of eighteen inches uf 
 water per hour, which we consider does nut 
 proceed from a single leak, but from the louse 
 state of the ship throughout; she has evidently 
 spread, and that she has not to support her 
 lower deck any^ knees, either fore or aft ur oth- 
 erwise, and we are of opinion that her upper 
 works have alone kept her together. We are 
 therefore unanimously of opinion that the said 
 ship is unfit for sea." She was sold for £643 
 as a wreck ; but the purchaser repaired her, 
 and surveyors pronounced her competent to 
 carry a cargo to the West Indies. She took a 
 cargo of sugar, and sailed, and on the same 
 day she made water rapidly, three feet that 
 (lay, four feet the following day. She put into 
 St. Lucia, where she was " hove down," sur- 
 veyed, and there condemned. But the survey- 
 ors reported: " We are of opinion that the de- 
 fective and injured condition of the ship has 
 been occasioned by a great strain of heaving 
 down, and not in any degree of decay or rot- 
 tenness of her materials." The judge admiral 
 and the court of session adjudged her sea- 
 worthy, but in the court here, it was held that 
 the evidence established the fact that she was 
 unseaworthy when she sailed from Honduras. 
 Parker v. Potts, 8 Dow, 33. 
 
 20. On a voyage from Grangemouth, in the 
 Frith of Forth, to Gottenburg, thence to a 
 port of discharge in the Forth. On her out 
 voyage she came to anphor in Leith roads, a 
 strong breeze sprang up, and she began to 
 drive. She was then riding with her best 
 bower, but soon after she let go her smaller 
 bower, and its cable immediately parted. 
 Under pretense of running into Leith, which 
 it was then impossible to do, as it was 
 then not more than two hours after low 
 water, the master cut both cables, and she 
 took tlie ground near Beacon Rock, and 
 sustained considerable damage. It ap- 
 peared that the small bower anchor cabl$ 
 had been much rubbed and injured, &nd in 
 consequence several pieces on different occa- 
 sions had been cut off prior to the commence- 
 ment of the voyage, and the best bower ao- 
 
1261 
 
 SEAWORTHINESS. 
 
 1262 
 
 When the vessel is not seaworthy. 
 
 chor was too light, and too short in the siiank 
 for a vessel of her tonnage Udd, there was 
 au implied warr;uity in every such contract 
 that the ship was seaworthy at the commence- 
 ment of the risk ; also, every ship ought to be 
 sufficiently provided with cables and anchors; 
 that the ship itself sliould be tight, staunch, 
 and strong, and furnished with sufficient 
 ground tackle to encounter the ordinary perils 
 •f the sea; that the courts require the evidence 
 :n this respect to be clear in the affirmative, 
 ind that the evidence in this case made it 
 clear she had not been so provided. WUkie 
 V. Otddei, 3 Dow, 57. 
 
 21. She encount<>Tcd a storm soon after she 
 sailed, and became leaky, put back, and was 
 found upon survey materially decayed and 
 damaged, which could not be attributed to 
 the effect of the storm. Held, it was not neces- 
 sary to inquire whether the owners acted hon- 
 estly and fairly in the transaction, for however 
 just and honest their intention and conduct, 
 yet if they were mistaken as to the fact of sea- 
 worthiness, and the vessel was in fact not sea- 
 wortliy, the underwriter must be discharged. 
 The facts showed her timbers were decayed, 
 and her iron work in general was very loose, 
 therefore she was not seaworthy (overruling 
 the decision of the Court of Session). Douglas 
 V. Seougail, i Dow, 269. 
 
 22. " On propeller West, from Montreal to 
 Halifax, against perils of the sea, etc., except 
 loss from rottenness, inherent defects, and 
 other unseaworthiness." She was disabled 
 after she reached the Atlantic, caused by a de- 
 fect in her boiler, not apparent when she left 
 port. She put into a port of distress, repairs 
 were made, she resumed the voyage and was 
 lost. Held, in all voyage policies there is an 
 implied warranty of seaworthiness; tliat she 
 was not seaworthy at the commencement of 
 the voyage, and the insurers were not liable. 
 QuOec Marine Ins. Co. s. Gotumercial Bank of 
 Canada, 3 L. R. P. C, 234; 7 Moore, P. C. C. 
 (N. 8.), 1; 39 L. J. P. C, 53; 18 W. R, 769; 
 22L. T.(N. S.), 559. 
 
 23. An American ship insured from Lon- 
 don to Riga. She sailed under a British 
 license; she was taken and carried into a 
 Danish port, libeled and condemned as prize. 
 The sentence found that she did not have a 
 sea passport, — it had been deposited with 
 the American consul, at London. Held, she 
 uD'ht to have had the documents nccessarv to 
 
 prove her neutrality, notwithstanding their 
 possession would have been a ground of con- 
 demnation by the French, under the Berliu 
 decree. Slfel v. Lacy, 3 Taunt., 285. 
 
 24. The master was very ill, and continued 
 so while in tlie port of lading. She set sail 
 on the homeward voyage. His illness in- 
 creased, and finding himself incompetent to 
 the charge of the vessel, he inquired of the 
 two mates whether they could manage the 
 voyage to England, who said they were unable 
 to undertake it. She was therefore put back 
 to obtain an officer, and lost before she reached 
 port The court directed the jury to consider 
 the length and circumstances of the voyage, and 
 to determine whether she was competent for 
 it. The jury foimd for the defendant Clif- 
 ford V. Hunter, 1 Moo. & M., 108 ; 3 C. & P., IC. 
 
 25. The hull of the ship was sufficient; but 
 her sails were defective. Held, not seaworthy. 
 Wedderbum «. Sell, 1 Camp., 1. 
 
 26. Ship sailed from Cuba for Liverpool 
 with ten men, two to be put on shore at Ja- 
 maica, it being impossible to get a full crew 
 at Cuba for Liverpool. She landed the two at 
 Jamaica and took on others. Held, the vessel 
 was not seaworthy, because when the V4)yage 
 commenced she did not have a full crew. For- 
 gJiauB V. GiMbert, 3 B. & B., 158; 6 Moore, 36U. 
 And that the taking on of a sufficient number 
 of seamen at Jamaica did not mend the war- 
 ranty. Ibid. 
 
 27. At and from St Lucas, on wine in casks, 
 on or under deck. It was all on deck, and 
 was jettisoned. The defendant pleaded that 
 the vessel was not seaworthy. Held, the ex 
 tent and effect of the warranty of seaworthi- 
 ness, as to a policy on goods, is that the ship 
 will be safe in ordinary weather, without be- 
 ing compelled to sacrifice the cargo insured; 
 that if the cargo is so stowed that in ordinary 
 weather it must be jettisoned, then she is not 
 seaworthy. Daniels c. Harris, 10 L. R. C. P., 1. 
 
 28. The rules of an insurance association 
 prohibited an American voyage, another em- 
 powered the managing underwriters to survey 
 each ship once a year, and to order such stores 
 and repairs as they might deem necessary, 
 and that these must be procured or made, 
 otherwise the ship could not be insured. Held, 
 a noncompliance with the order requiring re- 
 pairs and stores to be made and provided, 
 rendered the ship unseaworthy and avoided 
 the policy ; that if a ship starte on a voyage in 
 
 63] 
 
1263 
 
 SEAWORTHINESS 
 
 1264 
 
 Of ungeawoithiness subsequent to the attaching of the policy and sailing of the vessel. 
 
 an unseaworthy state, the policy is then at an 
 end, and her safe aiTival does not revive it. 
 SteuKMi, v. Wilson, 12 Mee. & W., 11 ; 13 L. J. 
 Ex., 27. 
 
 29. She was an A 1 vessel, but sprang a leak 
 twelve hours after she sailed ; returned to port, 
 where it was discovered the leak was caused 
 by the imperfect fitting of an old tree nail. 
 Sdd, insurers were not liable for damage to 
 the cargo, for the ship was not seaworthy 
 when she sailed. M'Kellar v. Henderson, Fac- 
 ulty Dec, 1810 to 1812, p. 15. 
 
 30. On barque Maria, of Yarmouth, N. S., 
 from the Clyde to Havana. Insured pleaded 
 that she had but one suit of sails and one spare 
 main-topsail. It appeared that she was Nova 
 Scotia built Insured was allowed to prove 
 that it was not usual for vessels like that in- 
 sured, built at Nova Scotia, to have more than 
 one suit of sails. Insurers proved that in 
 order to enable a vessel such as that insured 
 to cross the Atlantic in safety, more spare sails 
 than those were necessary. ITeld, the contract 
 was made in Scotland, and was to be enforced 
 there; hence, that degree of seaworthiness 
 which the custom at Greenock imposed must 
 prevail. Cook v. Greenock Mitt. Ins. Go., 5 0. 
 C. S., 246; 15 Scot. Jur., 611. 
 
 31. She sailed on her voyage, and in a few 
 days thereafter became so leaky, but without 
 adequate cause, that the master was compelled 
 to put back to port, and while so doing she 
 struck upon a leef, and was lost. ITeW, she 
 was not seaworthy. Watson v. Clark, 1 Dow, 
 336. The rule is, that if a vessel, without any 
 apparent cause of injury subsequent to her 
 leaving port, is found incapable to proceed, 
 and is obliged to put back, then she is pre- 
 sumed to have been unseaworthy at the com- 
 mencement of the voyage. And this is the 
 law, whether the ijolicy be upon ship, freight, 
 or cargo. Ibid. 
 
 V. Of unseaworthiness subsequent 
 
 TO THE ATTACHING OF THE POLICT 
 AND SAILING OF THE VESSEL. 
 
 1. In order to entitle the insured to recover, 
 the vessel must have been seaworthy for such 
 a voyage as she was engaged in at the time of 
 the disaster. If the vessel touched at an inter- 
 mediate port and she was discovered in a 
 leaky condition, then, if a prudent and dis- 
 creet master, of competent skill and judgment, 
 632 
 
 would have considered it necessary to repair 
 the leak before proceeding on the voyage, a 
 failure to do so would release the insurer, if 
 the loss was occasioned by the omission, an^ 
 would not otherwise have happened. If \ 
 master of competent skill and judgment might 
 reasonably have supposed that she was sea. 
 worthy for the balance of the voyage in which 
 she was then engaged, and on that accouni 
 omitted to examine and repair, the omission 
 was no defense to the action. Adderly 4, 
 American Mut. Ins. Go., Tan. C. C, 126. 
 
 2. Time policy on ship. Plea: that at the 
 commencement of the voyage on which she 
 was lost, she was unseaworthy, defective, and 
 insufScient, and so continued to be, and still 
 was at the time of the loss. Held, in order to 
 make the plea good, it must state such facts 
 and circumstances as shall show either that at 
 the time the insurance commenced, the ship 
 was in her original port of departure, and 
 commenced her voyage in an unseaworthy 
 condition and so continued till the time of her 
 loss, or, that having come into a distant port 
 in a damaged condition, before or after the 
 commencement of the risk, where she might 
 and ought to have been repaired, and that the 
 owner or his agents neglected to make such 
 repairs, and that she was lost by a cause at- 
 tributable to her insufiSciency (citing Small v. 
 Gibson, 4 H. L. Cas., 853). Jones r>. Insurance 
 Co., 2 Wall. Jr., 278. 
 
 3. Seaworthiness is an implied warranty, 
 but it is confined to the commencement of the 
 risk, and if not satisfied at that time, the in- 
 surer is discharged ; but if the vessel become:} 
 unseaworthy after the commencement of the 
 risk, the insurer is liable. American Ins. Go. 
 D. Ogden, 15 Wend., 533. 
 
 4. On schooner for six months — $1,800 — 
 sailed November 26th from New York for 
 Charleston, Norfolk and St Thomas; while 
 going over the bar into Charleston, she lost 
 her small bower anchor. She discharged her 
 cargo, remained in port for five or six days 
 and sailed for Norfolk without replacing it 
 On her arrival there the master sought, but 
 could not procure one of suitable size, and 
 after remaining there ten days, in which she 
 took a cargo, he set sail for St. Thomas, Jan- 
 uary 7th. She encountered very heavy 
 weather, split sails, sprung the main- mast and 
 leaked very badly, but she reached St. Thomas 
 and discharged the cargo. Ileld, though 
 
1265 
 
 SEAWORTHINESS. 
 
 1266 
 
 Of unseaworthiness subsequent to the attaching of the policy and sailing of the vessel. 
 
 flie loss of the small anchor rendered her nn- 
 seaworthy when she sailed from Charleston, 
 that would not discharge the insurer. Amer- 
 ieaii Ins. Co. v. Ogden, 20 Wend., 287. 
 
 5. On cargo from La Union to Panama. 
 She put Into Golfo Dolce in distress. Held, if 
 she left tlie latter place in an unseaworthy 
 condition, it was no defense to the action, pro- 
 vided she was seaworthy when she com- 
 menced the voyage. If she ran into port and 
 afterwards by an improper exercise of judg- 
 ment put to sea, the insured was not respons- 
 ible for it, for the master and mariners were 
 not his servants (citing Redman v. Wilson, 14 
 M. & W., 476; Waters ©.Merchants Ins. Co., 
 11 Pet, 213; Mathews o. Howajd Ins. Co., 11 
 N. T., 9). Srioso o. Pacific Mut. Ins. Co., 4 
 Daly, 246. 
 
 6. $10,000 on ship valued at $20,000, for 
 one year from March 22, 1854. " No partial 
 loss or particnlar average shall in any case be 
 paid unless amounting to live per cent., each 
 passage subject to separate average." She 
 sailed from Hong Kong, February 15, 1855, 
 bound for Shanghai and back to Hong Eong. 
 She put into Woo Sung in distress, dis- 
 charged her cargo, made partial repairs, and 
 sailed for Hong Kong, March 10th in ballast, 
 for the purpose of making necessary repairs 
 at that place, and to enable her to return for 
 her cargo. She was lost between Woo Sung 
 and Hong Kong. Held, if she was seaworthy 
 when she sailed from Hong Kong, insurers 
 were liable, for there was no implied warranty 
 that she should be seaworthy when she left 
 Woo Sung. It was sufficient if, when she 
 left the latter place, she was in a condition 
 which made it safe for her to undertake the 
 voyage. Hathaway v. Svn Muhial Itu. Co., 8 
 Bos., 33. 
 
 7. On cargo from New York to Galway, 
 nia Halifax. She was seaworthy when she 
 left the port of New York. The cargo was 
 burned to generate steam after she left Hali- 
 fax. Held, insurers of cargo were not liable 
 if she left Halifax in an unseaworthy condi- 
 tion ; and she was unseaworthy if she had not 
 
 ■ a sufficient quantity of coal for the voyage. 
 Howard «. Orient Mut. Ins. Co., 2 Rob. (N. Y.), 
 639. 
 
 8. Ship insured for voyage must be kept 
 seaworthy during the voyage, if possible; and, 
 if she receives sea damage on the voyage, it 
 must be repaired with reasonable diligence; 
 
 and, if a loss occurs, in consequence of a fail- 
 ure to repair, the insurer is discharged. Pad- 
 dock •». FranUin Ins. Co., 11 Pick., 227. 
 
 9. If a vessel, in the course of her voyage, 
 put into a port where repairs can be made, 
 and sails with a defect in her bottom, pro- 
 duced by a peril of the sea, during the voyage, 
 and it causes her to founder, the insurer is li- 
 able for the loss, unless the master had reason- 
 able cause to suspect the existence of the de- 
 fect when the vessel was in port, or knowing 
 of it had reasonable cause to believe that she 
 could not proceed safely home without hav- 
 ing it repaired. Starbuek v. New England 
 Marine Ins. Co., 19 Pick., 198. 
 
 JO. If a ship sails with officers and crew 
 competent for the voyage, and in the foreign 
 port the master becomes, by reason of intoxi- 
 cation or insanity, incompetent to command 
 the vessel, she is not rendered unseaworthy 
 because she sails from such port under his 
 command ; and the insurer is liable notwith- 
 standing his incapacity. Copeland v. New 
 England MaHne Ins. Co., 2 Met., 433. And al- 
 though the mate has a right to resort to all 
 lawful means to take command of the vessel, 
 in case the master becomes incompetent, yet 
 if from want of judgment or even from cul- 
 pable negligence he neglects so to do, and she 
 is stranded and lost while the master is in 
 command, the insurers are liable. Ibid. If 
 the loss arise from a peril insured against, 
 though it be produced or increased by the 
 negligence, carelessness, bad seamanship, or 
 other misconduct, not barratry, of the master 
 or mariners, the insurers are liable. Ibid. 
 
 11. Time policy. Held, no warranty that 
 she shall continue seaworthy during the term, 
 although there is an obligation resting upon 
 the insured to keep her tight, staunch and 
 strong, and a failure to do so, when practic- 
 able, would prevent a recovery. Capen n. 
 Washington Ins. Co., 12 Cush., 517. 
 
 12. "On catchings, lost or not lost, com- 
 mencing December 1, 1855, at noon." On that 
 day she was at sea leaking badly, from pre- 
 vious stress of weather, and she was then un- 
 seaworthy, and was compelled to put away fbr 
 a port of distress. She reached Tahiti Decem- 
 ber 9th, there she repaired, put to sea Febru- 
 ary 6, 1856, and on the following day com- 
 menced leaking badly. She put back to Tahiti, 
 arrived on the 10th, was surveyed and con- 
 demned because repairs would have been 
 
12C7 
 
 SEAWORTHINESS. 
 
 12G8 
 
 Of unseaworthiness subsequent to the attaching of the policy and sailing of the vessel. 
 
 utterly disproportioned to her value. The 
 cargo was transhipped and Inst on the passage 
 home.. Held, no implied warranty that she 
 was seaworthy when the policy commenced; 
 the policy attached, notwithstanding her con- 
 dition December 1st, and therefore the loss yvas 
 within the policy. Masy ti. Mutual Marine 
 /;w. <7«., 12 Gray, 497. 
 
 1 3. Term policy. She sustained damage hy 
 perils insured against while on a voyage from. 
 Pittsburgh to New Orleans, received partial re- 
 pairs at Louisville, and made several trips be- 
 fore complete repairs were made. Ileld, insur- 
 ers were liable for the damages resulting from 
 the peril encountered. The fact that after tlie 
 accident, she was navigated in an unseaworlhy 
 condition, did not affect the right of insured, to 
 recover for a liability fixed while she was sea- 
 worthy. Oaieam ii. Gineinnati Ins. Co., 6 
 Ohio, 71. 
 
 14. Upon hay on a flatboat. Held, " if she 
 was not seaworthy at the commencement of 
 the voyage, the insurers were not liable; that 
 if she was reasona/bly fit to carry the cargo on 
 the voyage insured, she was seaworthy;, but if 
 she became unseaworthy ; by reason of any 
 peril for which the insurer was liable, and 
 was afterwards with reasonable and ordinary 
 diligence made seaworthy, that was all the 
 law required of insured. But if she was sea- 
 worthy when the voyage commenced, and 
 afterwards in the course of the voyage became 
 unseaworlhy, the fact that she was not made 
 seaworthy with reasonable diligence was no 
 defense to the action, unless the want of re- 
 pairs caused the loss. FranMin Ins. Co. v. 
 Cobb. 2 Cin. Sup. CL, 87. 
 
 15. Policy made April 1, 1869, upon her 
 hull, tackle, apparel, and other furniture for a 
 term ending November 30, 1869. She re- 
 mained in port till April 10th, and continued 
 to sail between Chicago and Muskegon till 
 October 8th, at which time she was destroyed 
 by fire. Held, there was no implied warranty 
 that she was seaworthy when she sailed on her 
 first voyage April 10th ; it was su£9cient if she 
 was seaworthy when the risk commenced. 
 MerehanU Ins. Co. v. Morrison. 62 111., 242. 
 
 16. If the boat was seaworthy when leaving 
 port, it was immaterial whether the peril from 
 which she suffered injury was an ordinary 
 one or one which, under good management, 
 she might have safely encountered, proyidtd it 
 was one of the perils insured against, and was 
 
 634 
 
 . the proximate cause of the loss. Lochoood v. 
 Sangamo Ins. Go., 46 Mo., 71. 
 
 17. Plaintiff was owner and master. Held, 
 if he fouud her unseaworthy in the course of 
 the voyage, and neglected to have her made 
 seaworthy, and the loss occurred in conse- 
 quence of that neglect, insurer was discharged. 
 CuduDorth v. Bouth Garolina Ins. Co., 4 Rich., 
 416. 
 
 1 8. On copper ore, valued at £25 per ton, 
 at and from the anchorages at Hondeklip Bay 
 and Port NoUith to Swansea. She sailed from 
 Table Bay November 39th, for the places 
 named, for the purpose of taking the cargo. 
 She topk about one hundred and fifty tons at 
 Hondeklip liay, and sailed DecemTjer II, 1857, 
 ari-ived at Port NoUith the following day, 
 where she remained till the 29th, when she 
 got under way for Swansea, having taken two 
 hundi'edand fifty tons at the latter place, The 
 pumps Imd to be attended from December 21st 
 to 26th, at which time she was making about 
 one and a quarter inches of water per hour. 
 On the 28th she finished loading; the leak was 
 increasing, and when she sailed it was still in- 
 creasing. It was impossible to keep her free 
 from water January 6th. The crew became ex- 
 hausted, when there was six feet of water in 
 the hold. They put off and stayed by her all 
 night; she went down next morning. Held,BS 
 to the goods shipped at Hondeklip, the insurers 
 were liable, because she was seaworthy when 
 she sailed thence; but as to that part of the 
 cargo laden at Port Nollith, insurers were not 
 liable, because she was not seaworthy" when 
 she sailed thence. Biccard s. Bluphard, 14 
 Moore, P. C. C, 471 ; 10 W. K., 136 ; 5 L. T. (N. 
 S.), 504. 
 
 1 9. She sailed with a competent crew, was 
 driven into port in the Gulf of Finland, where 
 she was frozen in and compelled to remain for 
 the winter. The master dischai'ged the crew 
 and left her in care of the mate, while he pro- 
 ceeded to St. Petersburg to settle up her ac- 
 counts. Held, if she was seaworthy when she 
 sailed on the voyage, that was suflicient. The 
 owner did not undertake for the conduct of 
 the crew during the subsequent part of the 
 voyage. Bv*k c. Itoyal Exchange Ass. Co., 3 
 B. &A.,73. 
 
 20. She sailed from St. Andrew, in New- 
 Brunswick, for Valentia, Ireland, and had fair 
 weather for four or five days, after which she 
 encountered a heavy sea, made a great deal of 
 
1269 
 
 SEAWORTHINESS. 
 
 1270 
 
 Questions for the jury — Of pleading. 
 
 water, and the crew abandoned her. She wus 
 insured " from Belfast to British America, du- 
 ring her stay there, and back to a port of dis- 
 charge in the United Kingdom." Held, the 
 policy impliedly -warranted her seaworthy at 
 the commencement of the voyage ; but it was 
 d(>ubtful whether the warranty could be ex- 
 tended to every port in the course of the voy- 
 age. EoldawoHh v. Wise, 1 M. & R., 673; 7 B. 
 &C., 794;6L. J.K. B., 134. 
 
 21. Plea that before the loss she was greatly 
 broken, damaged, shattered, loosened and un- 
 seaworthy, which with reasonable care and 
 diligence, and small cost, compared with the 
 value of the vessel, might have been repaired 
 and rendered seaworthy ; but the plaintiff neg- 
 lected and refused to repair, and so she con- 
 tinued unseaworthy till the loss. Hdd, upon 
 demurrer, that the averment " with reasonable 
 care and diligence she might have been re- 
 stored, etc.," does not show there was gross 
 negligence in omitting to repair. Mdd, also, 
 the plea was bad because it did not aver ih at the 
 insured knew she could have been repaired at 
 small cost. Held, also, if she was seaworthy at 
 the commencement of the voyage, that was 
 sufScient. HoUingsworth v. Brodriek, 7 A. & 
 E , 40; 8 L. J. (N. S.) Q. B., 80; 1 Jur., 4-30; 3 
 N. & P., 608. 
 
 22. On goods from Liverpool lo Melbourne, 
 including all risk to and from ship. Plea: that 
 after she arrived at Melbourne the goods were 
 discharged from the ship in a lighter, for the 
 purpose of being landed ; that the lighter was 
 not seaworthy, and that the damage was 
 caused solely by that unseaworthiness. Held, 
 no defense to the action. Lane v. Nixon, 1 L. 
 R C. P., 413 ;s. c, 13 Jur. (N. 8.), 393; 35 L. J. 
 C. P.,2^;14W. R, 641. 
 
 V. Questions foe the juet. 
 
 1. She was repaired in 1844, and then cut 
 down to the water's edge. New timbers, ceil- 
 ing and outside, from the bottom to the rail, 
 were put in. Everything was taken out ex- 
 cept the keel, stern, stem-post and a few floor 
 timbers. She was substantially rebuilt, reex- 
 amined eighteen months prior to the loss, and 
 then found in good condition, except that her 
 stern-post had started. She sprung a leak very 
 soon after the commencement of the voyage, 
 without any apparent cause. The jury found 
 that she was seaworthy at the commencement 
 
 of the voyage. Held, the court would not un- 
 dertake to say that there was no evidence to 
 sustain the finding, therefore to interfere with 
 it would be violating a principle which is too 
 well established. Sherwood v. Buggies, 3 
 Sandf., 55. 
 
 2. When the insurance was ordered, one of 
 the partners knew that the vessel was aground 
 in the river, that the river was falling rapidly, 
 and that some of the cargo had been thrown 
 overboard. Meld, it was for the jury to say 
 whether the vessel was seaworthy at the time 
 in question. Rosetiheim o. America Ins. Co., 
 33 Mo., 230. 
 
 3. On schooner for one year, beginning 
 April 1, 1851. She left Bailey's harbor, July 
 34th, and was capsized in a squall. She had 
 about one-fourth of her canvass set, no cargo 
 on board, and but three or four tons of ballast. 
 Held, it was the duty of the insured from time 
 to time to keep the vessel in a condition proper 
 for the service in which she was engaged; and 
 if he failed to do so, and a loss happened 
 which was attributed to that cause, the in- 
 sured, and not the insurers, must bear it; that 
 if she had not a proper amount of ballast at 
 the time she left port, which might have been 
 procured by ordinary care and prudence, and 
 visa capsized for want of it, then the plaintiff 
 could not recover; but this was a question 
 purely for the jury. Merchants Mut. Ins. Go. 
 V. Sweet, 6 Wis., 670. 
 
 4. She left Pensacola on the morning of the 
 19th, and crossed the bar at 8 o'clock; the 
 weather continued fair till the 30th, but she 
 commenced to leak on the morning of the 31st. 
 The wind was blowing fresh, weather dark 
 and cloudy, and vessel laboring very much. 
 Sixteen heavy pieces of timber were thrown 
 overboard, and she was pumped free on the 
 38d. Held, the question of seaworthiness was 
 one of fact for the consideration of the jury. 
 ScAultz V. Pacific Ins. Co., 14 Fla., 73. 
 
 YII. Of pleading. 
 
 On cargo, at and from any port or place in 
 Cochin China, to Marseilles. The defendant 
 pleaded: "The said premises so insured as 
 aforesaid were not seaworthy for the voyage 
 at the time the said ship departed and set sail 
 thereon." Held, it is no answer to say that 
 the goods were unfit to be shipped, unless it 
 is shown that the loss arose from that unfitness, 
 
 635 
 
1271 
 
 SEIZURE— SENTENCE OF CONDEMNATION. 
 
 1272 
 
 When conclusive. 
 
 therefore the plea was no answer to the action. 
 Koebd 0. Saunderg, 17 C. B. (N. 8.), 71 ; s. c, 
 10 Jur. (N. S.), 920; 33 L. J. C. P., 310; 12 W. 
 K., 1106; 10 L. T. (N. S.), 695. 
 
 VIII. Geneeai.lt. 
 
 A necessity to repair mere wear and tear 
 casts no presumption against the vessel's sea- 
 worthiness at the commencement of the voy- 
 age. DonneU d. Celvnibian Ins. Go. 2 Sumn., 
 366. 
 
 SEIZURE. 
 
 (See Caftube and Ssizubb.) 
 
 SENTENCE OF CONDEMNATION. 
 I. When conclusive. 
 
 II. NOT CONCLUSrVE. 
 
 I. "When conclusite. 
 
 1 . The sentence of a court of vice admiralty 
 for attempting a breach of blockade was held 
 conclusive evidence of tlie fact stated in the 
 sentence. Crovdson e. Leonard, 4 Cranch, 434. 
 
 2. The sentence of a foreign court of ad- 
 miralty, condemning the property as lawful 
 prize, is conclusive evidence as to the charac- 
 ter of the property. Vandenheuvel v. United 
 Ins. Co., 2 Johns. C, 127. 
 
 3. On cargo. " Warranted lawful, and ves- 
 sel American bottom." She was captured. 
 The lords commissioners decreed the cargo 
 good and lawful prize. Held, there was no 
 ambiguity in the sentence, hence the war- 
 ranty was faslified. Browne v. Insurance Co. 
 of Pennsylvania, 4 Yeates, 119. 
 
 4. Warranted neutral. She had been con- 
 demned by a foreign court of admiralty, on 
 the ground that she was not neutral. ITdd, 
 the sentence was conclusive. Manque «. Pey- 
 tavin, 4 Martin (La.), 458. 
 
 5. The decree of a foreign court of admi- 
 ralty condemning a cargo as enemy's prop- 
 erty, is conclusive evidence that the cargo 
 was not neutral property. Brown v. Union 
 Ine. Co., 4 Day, 179. 
 
 636 
 
 6. "Warranted against loss by seizure for 
 or on account of illicit or prohibited trade, or 
 trade in articles contraband of war ; that the 
 judgment of a foreign colonial court shall not 
 be conclusive of the fact." Held, the judg- 
 ment of such a court, condemning her on the 
 ground that she was employed in the Lopez 
 expedition against the island of Cuba, was 
 prima facie evidence of the fact, and became 
 conclusive in the absence of jiroof to impeach 
 it. Deerow ». Waldo Mut. Ina. Co., 43 Me., 460. 
 
 7. Warranted American. She was seized, 
 libeled and condemned for not having docu- 
 ments necessary to establish her neutral char- 
 acter, and the record of condemnation by the 
 admiralty court was offered and accepted. 
 Held, conclusive. Zeno o. Louisiana State 
 Ins. Co., a La. (0. S.), 533. 
 
 8. Free from charge, damage or loss which 
 may arise in consequence of engaging or of 
 having been engaged in illicit or prohibited 
 trade at any time whatsoever. She was con- 
 demned on tlie ground that the cargo be- 
 longed to Spaniards, that it was the produce 
 of Spain, and that she sailed from an enemy's 
 port. Held, the sentence showed a breach of 
 the warranty, for it states that the goods are 
 enemy's property. Ooicacliea v. Louisiana 
 State Ins. Co., 18 Martin (La.), 51. 
 
 9. The policy stated that the goods be- 
 longed to American citizens, resident in 
 Charleston. They were condemned as the 
 property of the enemies of Great Britain. 
 Held, the statement in the policy amounted to 
 a warranty that the goods were neutral prop, 
 erty, hence the sentence of condemnation was 
 conclusive upon that question. Walton «. Be- 
 thune, 2 Brev., 453. 
 
 1 0. " Warranted Dutch." She sailed under 
 a Dutch name (but it was her English name 
 translated), with a Dutch pass or sea brief, 
 was captured by the French and condemned 
 as English property. The sentence did not 
 state the particular grounds of condemnation. 
 Held, the sentence whether right or wrong, 
 went on the ground that she was not Dutch. 
 Barzillai n. Lewis, 3 Doug , 126. 
 
 11. Sentence of condemnation, of the 
 French court, at San Domingo. Hdd, con- 
 clusive evidence of the fact. Bariny «. Cla- 
 gett, 3 B. & P., 201. 
 
 12. "Warranted neutral onboard the Thetis, 
 a Tuscan ship." Held, the sentence of con- 
 demnation was conclusive evidence, that the 
 
1273 
 
 SENTENCE OP CONDEMNATION. 
 
 1274 
 
 When not condusiTe. 
 
 goods were not neutral. Haloued v. Woodt- 
 masi, 3 Doug., 345. 
 
 1 3. On a bottomry bond, on the Danish 
 sUaw "Frowana," from Penzance to Genoa. 
 She was captured by a French privateer and 
 taken to Malaga, Spain, where she was con- 
 demned before tlie French consul, on the 
 ground that " she was enemy's property, and 
 British." Held, conclusive evidence that she 
 was not Danish. Oddy v. Bovill, 3 Eabt, 473. 
 
 1 4. Where a foreign court of admiralty has 
 construed a treaty, be the construction never 
 so iniquitous, another court is bound by the 
 comity of nations to give credit to the adjudi- 
 cation, if the foreign court of admiralty had 
 Jurisdicti<^n. Baring v. Royal Mxehange Ass. 
 Co., 5 East, 99. 
 
 15. "Warranted American." She was con- 
 demned as enemy's property, because she had 
 not a roll d'equipage, as required by a marine 
 ordinance of France. Held, according to the 
 treaty of commerce between France and 
 America, such a document was necessary, and 
 the condemnation for want of it was conclu- 
 sive evidence that she was not American prop- 
 erty. Qeyer v. Aguilar, 7 Term, 681. 
 
 1 6. The sentence of a foreign court of ad- 
 miralty is conclusive only as to the express 
 ground of the sentence. Criatie v. Seoretan, 8 
 Term, 192. 
 
 II. When not conclusite. 
 
 1. On ship, warranted American property, 
 from Charleston to Cadiz, captured by a Brit- 
 ish ship of war July 16, 1800, carried into 
 Gibraltar and condemned, August 26th follow- 
 ing. The cause of condemnation was set forth 
 in the sentence : " That she cleared out for 
 Cadiz, a port actually blockaded, and that the 
 master persisted in his intention of entering 
 tliat port after warning from the blockading 
 force not to do so, in direct breach and viola- 
 tion of the blockade, thereby notified." The 
 jury found specially, that the blockade of 
 Cadiz was not known at Charleston when the 
 vessel sailed, that the first notice the master 
 had of it was from the blockading squadron, 
 who warned him not to proceed nor to attempt 
 to enter, and so indorsed her register. She 
 was detained for eleven days, when the master 
 was taken to the admiral, who said to him : 
 " We have thoughts of setting you at liberty, 
 and in case we do, what course will you steer, 
 
 or what port will you proceed for ?" To which 
 he replied, that " If he got no new orders, he 
 should continue to steer by his old ones," to 
 which the admiral rejoined, "That will be, I 
 suppose, for Cadiz ?" to which the master re- 
 plied, "Certainly, unless I have new orders." 
 Thereupon the admiral said, " That is sufl5- 
 cient; I shall send yon to Gibraltar for adju- 
 dication;" and without being liberated, she 
 was sent to Gibraltar, and condemned on the 
 grounds stated in the sentence. Held, the sen- 
 tence did not deny that she was American 
 property, and the fact that she cleared for a 
 blockaded port was in itself innocent, unless 
 accompanied with knowledge of the blockade, 
 therefore clearing for it was not an offense, 
 for it cannot be said that a person attempts to 
 enter a blockaded port, unless it appears that 
 he had notice of the blockade ; this question 
 was regulated by treaty between the United 
 States and Great Britain, which provides 
 " that the ship may be turned away, but she 
 shall not be detained if cargo is not contra- 
 band, nor be confiscated unless after notice she 
 shall again attempt to enter;" that no attempt 
 to enter the port was stated in the sentence, 
 but persisting in the intention after being 
 warned not to enter, it was alleged, as the 
 cause of condemnation, which was not a good 
 cause for condemnation, under the treaty. 
 Held, also, as the facts stated in the sentence 
 do not amount in themselves to a justifiable 
 cause of condemnation, the court must look 
 into the special verdict which might explain 
 what was uncertain in the sentence; that the 
 conversation which took place between the 
 master and the admiral must be termed insidi- 
 ous, since its object was to trepan the master 
 into expressions which might be construed 
 into evidence of an intention to sail for Cadiz 
 should he be liberated; that the answers of 
 the master, however indiscreet, did not amount 
 to an attempt to enter tlie port of Cadiz; 
 that the sentence of the vice admiralty court 
 did not falsify the warranty, therefore insured 
 was entitled to recover. Fitzsimmons ». New- 
 port Ins. Co., 4 Cranch, 185. 
 
 2. "Warranted neutral, proof of which to 
 be made in the United States only." She was 
 condemned in a foreign court of admiralty for 
 a breach of blockade. Held, insured had the 
 right, upon the trial of this cause, to give evi- 
 dence tending to show that tlie warranty had 
 been satisfied, therefore tlie sentence of the 
 
 637 
 
1275 
 
 SENTENCE OF CONDEMNATION. 
 
 1276 
 
 Wteni not condusive. 
 
 foreign court of admiralty was not conclusive. 
 Maryland Ins. Go. v. Woods, 6 Cranch, 29. 
 
 2. She was seized by the Mexican govern- 
 ment, and condemned on the grouud of a vio- 
 lation of the revenue laws of Mexico; and to 
 prove that, Jlnsurers produced a. transcript of 
 the proceediflgs of the court against the vessel. 
 The insiired denied the existence of the alleged 
 law, or that any breach of it was committed, 
 denied the jurisdiction of the Mexican court, 
 and averred that the record was false, that she 
 was confiscated and condemned ai'bitrarily 
 and unjustly, and without any opportunity 
 given the, master to make defense, or to exam- 
 ine witnesses. Held, the sentence of a court 
 of admiralty, and prize in rem is in general 
 conclusive, not only in respect to the parties 
 in interest, hut also for collateral purposes, 
 and in collateral suits, not only as to the direct 
 matter of property and title, embraced in the 
 judgment, but ^Iso as to the facts on which 
 the sentence professes to proceed (citing 
 Croudsou V. Leonard, 4 Cranch, 434 ; Rose o. 
 Himely, id., 341; Hudson o. Gucstier, id., 293; 
 The Mary, 9 id., 126; (Jelston ». Hoyt, 3 Wheat., 
 246) ; but before the sentence of a foreign court 
 proceeding in rem can be held conclusive, 
 it must appear that proper judicial proceed- 
 ings were the foundation of the decree, and 
 a written allegation of the offense charged, 
 upon which the forfeiture is sought to be in- 
 forced, and personal, or public notice of the 
 proceedings, so that parties interested may 
 know what is the offense charged, and may 
 have an opportunity to defend and disprove it, 
 none of which had been done in this case, 
 therefore the sentence was not conclusive. 
 Bradstreel v. Neptune Ins. Go., 3 Sumn., 600. 
 
 4. The policy provided that proof of the 
 national character of the property should be 
 made, if required, in the United States only. 
 Held, the sentence of a foreign court condemn- 
 ing the vessel on the ground that she was not 
 of the natioikal character warranted, was not 
 conclusive. Galbreath c. Oracy, 1 Wash. C. 
 a, 219. 
 
 f>. Warranted American property, proof to 
 be made here. She was condemned as enemy's 
 property. Seld, the sentence of the foreign 
 court of admiralty was not conclusive that 
 the warranty could be vindicated by proof in 
 the U. S. Sperry d. Delaware Ins. Go., 3 
 Wash. C. C, 243. 
 
 6. In an action on a policy of insurance. 
 
 the sentence of a foreign court of admiralty 
 is not conclusive evidence as to the character 
 of the property and a breach of the warranty 
 of neutrality. Vandeaheuvel v. United Ins. 
 Go., 2 Johns. C, 452. 
 
 7. Where the sentence of a vice admiralty 
 court states that the thing was condemned as 
 lawful prize, it affords no necessary inference 
 that it was enemy's property, and is not con- 
 clusive evidence of that fact. Ooix v. Low, 2 
 Johns. C, 4S0. 
 
 8. Where the sentence of an admiralty court 
 rests upon the bare shipment of the articlej 
 but does not disclose a case which would war- 
 rant the conclusion, the sentence is not con- 
 elusive evidence of the condemnation, if a de- 
 tail of the precise grounds on which it was 
 pronounced repels that conclusion. Johnston 
 V. Ludlow, 2 Johns. C, 481 ; Laing v. United 
 Ins. Go., id., 487. 
 
 9. If the sentence of condemnation pro- 
 ceeds directly on the ground of blockade, it 
 is prima facie evidence only of the fact of 
 bloclcade. Iladcliffe v. United Ins. Go., 9 
 Johns., 277. 
 
 10. The sentence of condemnation, pro- 
 nounced by a foreign court of admiralty, is 
 prima facie evidence of the facts stated in it, 
 and the grounds upon which it purports to 
 have been founded, but it is not conclusive. 
 JVew York Firemen Ins. Co. ■». De Wolf, 2 Cow., 
 56; affirming s. c, 20 Johns., 214. 
 
 11. The fact that the insured is a British 
 subject, and that his vessel has been con- 
 demned by a court of his own nation, is no 
 defense to his action against his insurer. 
 Francis v. Oce/tn Ins. Go., 6 Cow., 404. 
 
 12. Courts do not take judicial notice of 
 the municipal laws of foreign countries ; they 
 must be proven like all other facts, hence where 
 the insurer sets up a breach of warranty 
 founded upon an illicit trade and condemna- 
 tion by an admiralty court acting as a muni- 
 cipal court, the onus is upon the insurer to 
 prove the existence of the law alleged to be 
 violated, and the fact of seizure and con- 
 demnation are not enough to support the 
 breach of warranty. Ocean Ins. Go. v. Francis, 
 2 Wend., 64; affinning s. c, Cow., 404. 
 
 1 3. On vessel and cargo. Port de Paix to 
 Philadelphia. Vessel valued at $8,000 ; cargo 
 at $30,000, against capture by the British only. 
 "Warranted American property." Insured, 
 upon being asked by insurer whether she h<vd 
 
1277 
 
 SENTENCE OP CONDEMNATION. 
 
 1278 
 
 When not condusiTe. 
 
 been captnred, replied he had iu3t received a 
 letter from the master informing him of the 
 fact, and wished to be insured. Insurer 
 agreed to insure against condemnation on)}', 
 at a premium of ten per cent.; vessel and 
 cargo were subsequently condemned. The 
 sentence of condemnation was ambiguous. 
 Stld, the court had a right to examine whether 
 the property was American, and being satis- 
 fied that it was, except a trifling matter of 
 household furniture and baggage, belonging 
 to French soldiers, the warranty was satisfied. 
 Vatse V. BaU, 3 Yeates, 178; 2 Dall., 270. 
 
 14. " On cargo, warranted free from charge, 
 damage or loss, which may arise in conse- 
 quence of seizure or detentioij, for or on ac- 
 count of any illicit or prohibited trade." The 
 Berlin decree of November 21, 1806, prohib^ 
 ited trade in British merchandise. Aranjuez 
 adopted tliat decree February 19, 1809. The 
 goods were of British manufacture. She was 
 captured about a league from La Gkiira. Pro- 
 ceedings were had in admiralty, by which the 
 goods were condemned, but the cause for con- 
 demnation assigned in the sentence did not 
 negative the warranty. Held, unless this was 
 clearly expressed or fairly to be drawn from 
 the sentence, the insured was entitled to re- 
 cover. Held, aUo, it was not clearly expressed 
 nor fairly to be drawn from the sentence. 
 Faudel e. Phmnix Ins. Co., 4 S. & R., 29. 
 
 15. The decree alleged a rescue, and then 
 declared that for such cause " or otherwise, the 
 vessel is liable to condemnation." fleW, these 
 words do not amount to a direct allegation 
 that the rescue was one of the final causes of 
 the condemnation. The natural construction 
 is that as the vessel had been rescued, she was 
 liable to condemnation for that or some other 
 cause not stated. Where it does not appear by 
 the decree itself on what particular ground the 
 condemnation was had, the case is open to 
 evidence as to all points necessary, to all par- 
 ties in interest to establish, except the fact of 
 condemnation. Robinson o. Jones, 8 Ma.ss., 536. 
 
 1 6. The property was condemned by a for- 
 eign court of admiralty. The sentence did 
 not state that the ccmdemnation was for any 
 violation of the treaty of 1795. But it stated 
 that the proof of property in the cargo was 
 insufficient, and for that cause it was con- 
 demned. The treaty required no proof of any 
 property, except of the vessel, which, without 
 Buch proof, was liable to condemnation ; but 
 
 the vessel was acquitted, aud the sentence 
 did not in terms condemn the cargo for a 
 violation of the treaty, nor did it decide any 
 fact which amounted to such violation. Held, 
 it was not conclusive evidence for the insurer. 
 Levy V. Merrill, 4 Me., 180. 
 
 17. If tlie sentence of condemnation is ob- 
 scure and the court cannot ascertain from it 
 on what ground the decree was founded it is 
 not proof of breach of warranty, though it 
 purports to be on that ground. Oray v. Swan, 
 1 H. & J., 142. 
 
 18. While the sentence of a foreign court 
 of admiralty is conclusive, still it is always 
 proper for the court which is asked to adopt 
 the sentence of the foreign court to examine 
 into the competency of the tribunal by whose 
 sentence condemnation was pronounced. It 
 is the clear right of every court to examine 
 whether the sentence offered to, it emanates 
 from an authority competent by the law of 
 nations to judge of the matters cm which it 
 has pronounced (citing Rose «. Himely, 4 
 Oranch, 241; The Flad Oyen, 1 Rob. Wm., 
 144; The Hendrick and Maria, 4 id., 43). 
 OucuU'u V. Louisiana State Ins. Co., 17 Martin 
 (La.), 464. 
 
 19. The sentence of condemnation proved 
 that the ship and cargo were condemned — the 
 ship because she wanted the documents neces- 
 sary to establish her character — the goods be- 
 cause they were about to be introduced in vio- 
 lation of the blockade; but the sentence also 
 proved that an appeal had been taken, and 
 there was nothing to show that it had been 
 adjudicated. Held, the appeal from the sen- 
 tence prevented it from having the force of 
 res judicata, consequently it does not prove 
 Uiat the warranties were falsified. Zino v. 
 Louisiana Ins. Co., 18 Martin (La.), 62. 
 
 20. The sentence stated that the master per- 
 sisted in his intention to enter a blockaded 
 port. The evidence showed that the master 
 was carried on board the admiral's ship, and 
 asked by the commander where he would go 
 in case he was released. He replied into 
 Cadiz. Held, the decree was not conclusive, 
 because it stated an intention to enter a block, 
 aded port, and a condemnation on that ground 
 was a violation of the law of nations. Wil- 
 UaiMon V. Tunno, 1 Brev., 151. 
 
 21. She was condemned as "good and law- 
 ful prize;" but no reasons or causes were 
 stated in the sentence. Held, it did not falsify 
 
 639 
 
1279 
 
 SENTENCE OF CONDEMNATION. 
 
 1280 
 
 When not condusiTe. 
 
 the warranty of neutrality, for nonneutralilty 
 is not always the only ground of condemna^ 
 tion. Bailey v. South Carolina Ins. Co., 2 
 Brev., 354. 
 
 22. On cargo. Stipulated : " In case of cap- 
 ture or seizure, insured must produce proof 
 that the ship was American, and show by bills 
 of lading that the cargo had been shipped at 
 risk of A. B., upon which insurers would settle 
 by bills at four mouths for amount of their 
 subscription." She was captured by a French 
 privateer because she had not an equipage 
 roll, and was condemned. Held, insured 
 need prove only that she was American, 
 and that the cargo had been shipped for ac- 
 count and risk of the person named. That 
 the sentence of the French court did not pre- 
 clude such proof, for the agreement of the 
 parties stipulated that such should be made 
 notwithstanding the sentence. Lothian n. 
 Uenderson, H. L., 3 B. & P., 499. 
 
 23. " On ship from Dantzic to Dublin, war- 
 ranted a Dantzic vessel." Captured by a 
 French privateer and ultimately restored ; but 
 the expense incurred in legal proceedings and 
 otherwise, exceeded the amount she was sold 
 for, in admiralty, under a bottomry proceeding. 
 The sentence of restitution refused to allow 
 damages and costs, because she was not docu- 
 mented according to the ordinances of 
 France — she was documented according 
 to the law of nations. EM, prize or no prize 
 ought to be decided by the law of nations; 
 and, that law must be collected from writers 
 on the subject and treaties between nations; 
 that the refusal of a prize court to allow dam- 
 ages and costs was founded on two private 
 ordinances of France, not within the knowl- 
 edge of the people of Dantzic, and was there- 
 fore no ground for holding the insurers re- 
 leased, aiffken v. Lee, 5 B. & P., 484. 
 
 24. The sentence of condemnation by the 
 foreign court did not state precisely on what 
 it was founded. Held, it was not conclusive 
 evidence that the ship was not neutral. Ber- 
 nardi v. Motteux, 3 Doug., 575. 
 
 25. The grounds of the sentence and de- 
 cree of the foreign court of admiralty did not 
 appear; but the decree stated that she was 
 " lawful prize." Held, not conclusive evidence 
 that she was not neutral property. Salueei v. 
 Johnson, 4 Doug., 224. 
 
 26. The sentence of a foreign court of ad- 
 miralty was held to be evidence only of what 
 
 640 
 
 was positively and specifically affirmed in the 
 adjudicative part of it; but not of anything 
 that might be gathered by inference. Fisher 
 V. Ogle, 1 Camp., 418. 
 
 27. The sentence of a court of admiralty 
 sitting under a commission from a belligerent 
 power, in a neutral country, will not be rec- 
 ognized in the English courts; and that is a 
 neutral country in which the forms of an in- 
 dependent neutral government are preserved, 
 although the belligerent may have such a 
 body of troops at hand as in reality to pos- 
 sess the sovereign authority. Donaldson v. 
 Thompson, 1 Uamp., 429. 
 
 28. The sentence of condemnation stated, 
 as the ground of condemnation, that she had 
 neither a register nor a certificate of measure- 
 ment; but it did not appear that by treaty be- 
 tween Denmark and the country of her flag, 
 such a register was required. Held, the sen- 
 tence was not conclusive evidence that she 
 was not documented according to the law of 
 nations. Le Cheminant v. Pearson, 4 Taunt., 
 367. 
 
 29. " Warranted American property." She 
 was American built, manned by American 
 sailors, and owned by an American. She had 
 all the necessary documents on board, des- 
 tined from London to Norfolk. Stress of 
 weather compelled her to bear away for port 
 of refuge ; but she was captured before she 
 made it, by a French privateer and con- 
 demned. The sentence of condemnation 
 stated, that " forasmuch as the true destina- 
 tion of the vessel was for the English islands, 
 having been hired and loaded at London, and 
 having on board eighty barrels of gunpowder, 
 declai-es ship and cargo good prize." Held, 
 not conclusive evidence against the warranty 
 of neutrality. Calvert v. Bovill, 7 Term, 523. 
 
 30. The sentence of a foreign court of ad- 
 miralty is not conclusive as to the grounds of 
 condemnation, unless those are explicitly set 
 forth in it, hence a sentence which states: 
 " That the ship George sailed from Liverpool, 
 knowing of the blockade of Buenos Ayres by 
 the emperor of Brazil, from a short distance 
 of which port she was taken, and for that rea- 
 son ought to be considered as violating the 
 blockade, besides which it was notorious the 
 captured had endeavored to get goods into 
 Buenos Ayres, as was clear from the evasive 
 answers of the captain ; that the captured had 
 not the plausible excuse of going first to Mon- 
 
1281 
 
 SERVICE OF PROCESS. 
 
 1282 
 
 Of service by substitution — Valid service. 
 
 tevideo, and thereby complying with the pub- 
 lished instructions ; from all which, and from 
 what the documents stated, the ship was ad- 
 judged good prize." IIeld,iliis was not a sen- 
 tence which explicitly stated the ground of 
 coudemnatiou. Dalgleish v. Hodgson, 7 Bing., 
 496; 9 L. J. C. P., 138; 5 M. & P., 407. 
 
 31. "On ship and cargo, the property of 
 American citizens." (The policy was made 
 while the country was at peace with France.) 
 Stipulated : " lu case of capture, insured, be- 
 fore claiming loss, shall produce proof of the 
 ship being American bottom, and by bills of 
 lading show tliat the cargo was shipped on ac- 
 count and risk of (certain persons named) 
 American citizens." She was captured and 
 condemned by the prize courts of the French 
 Republic as the property of the enemies of 
 the French Republic, on the ground that the 
 master was not provided with the papers 
 necessary to establish the fact that she was 
 American property. Insured transmitted to 
 ihsurers bills of lading, which showed that 
 the cargo was shipped at the risk and for ac- 
 count of the proper persons; they also pro- 
 duced proof that she was an American ship. 
 Eeid, insured had complied with the terms of 
 their contract, and were therefore entitled to 
 recover, notwithstanding the sentence of con- 
 demnation. Hendenon v. Lohian, Faculty 
 Dec, 1796 to 1801, p. 428. 
 
 SERVICE OF PROCESS. 
 
 I. Of service by substitction, 
 II. Valid service. 
 III. Invalid service. 
 
 I. Of service by substitution. 
 
 1. It appeared that the contract was made 
 in Ireland, but the defendant was an English 
 corporation. Held, the defendant's resident 
 agent must appear by substitution, and 
 answer. Ahearne v. Uamey, 3 Irish Eq., 479. 
 
 2. Application to substitute service upon 
 the Dublin agent of an English company. 
 HM, unnecessary to show that the whole 
 cause of action arose in Ireland. It was suf- 
 ficient if any part of it arose there. Betham 
 V. Femie, 4 Ir. C. L. R., 92; Kelt «. Sohinion, 
 id., 186. 
 
 41 
 
 II. Valid service. 
 
 1. B. had a written contract and power of 
 attorney signed by the president and se(Sretary 
 of the defendant, by which he was appointed 
 their agent for the city of New York, to eflcct 
 insurance for them. Held, service of process 
 upon him was valid. Bain o. Globe Ins. Co., 
 9 How. Pr., 448. 
 
 2. The defendant, a foreign corporation, was 
 sued by a citizen of this state. Held, when 
 the corporation established a business in the 
 state to make and enforce contracts within it, it' 
 must be bound to take notice of service of pro- 
 cess upon the agent to whom it intrusts its 
 business, and service being made upon such a 
 person is valid. Gibbs v. Queen Fire Ins. Co., 
 Ct. of App. JS. Y., 5 Ins. L. J., 225. 
 
 3. Policy made by a Massachusetts com- 
 pany sued in Maine, and judgment upon it in 
 that state. The writ was served upon a per- 
 son who had ceased to be the agent, but he 
 was the person who countersigned the policy. 
 The statute authorizing service of process, in 
 Maine, provided, " Or if such service shall be 
 made upon the person being an inhabitant of 
 this state, who signed or countersigned the pol- 
 icy on which such action is founded, it 
 shall be deemed a suflBcient service." This 
 suit was to enforce the judgment. Held, de- 
 fendants had legal notice of the action brought 
 against them in.Maine, and the court had juris- 
 diction of the parties (citing 'La Payette Ins. 
 Co. n. French, 18 How., 407). Gillespie o. 
 CommereicU Mutual Marine Ins. Co., 12 Gray^ 
 201. 
 
 4. Suit was instituted October 14, 1852, on a 
 policy executed at New Orleans by Johnson, 
 as agent of the defendants, a foreign com- 
 pany, domiciled in Tennessee. The petition 
 and citation were served November 8, 1852. 
 Johnson filed an exception, stating that ho was 
 not defendant's agent at the time of service, 
 for that his agency had been withdrawn ; and, 
 in support of that, he exhibited a telegram, 
 dated Nashville September 29, 1852, with- 
 drawing his agency. Held, the defendant 
 could not frustrate the plaintiffs right to sue 
 in Louisiana by revoking the authority of the 
 agent on the eve of the institution of the suit. 
 Michael v. Mutual Ins. Co., 10 La. An., 737. 
 
 5. Service of process upon a company's 
 agent is service upon the corporation. Cit}f 
 Fire Ins. Co. v, Camigi, 41 Ga., 660. 
 
 641 
 
1283 
 
 SETOFF. 
 
 1284 
 
 Wlien allowed. 
 
 III. I]yVAI,ID SEKVICE. 
 
 Return of process: "Executed on D. N. 
 Barrows and George A. Smy, the agents, per- 
 sonally, and copy delivered October 30, 1867." 
 Hdd, not a good service, and no warrant for a 
 judgment by default, because it did not ap- 
 pear in the declaration that the defendant was 
 a foreign insurance company, nor that D. N. 
 Barrows was the duly authorized agent of the 
 company. Continental Ins. Oo. v. Mansfield, 
 45 Miss., 311. 
 
 SETOFF. 
 
 I. When allowed. 
 
 II. DENIED. 
 
 III. Of pleading. 
 
 I. When allowed. 
 
 1. The policy was made in the name of H., 
 for account of whom it may concern, loss, if 
 any, payable to the order of H. A. and H. 
 shipped the cargo on joint account, for which 
 A. advanced all the purchase money, and the 
 policy was deposited with him. Held, the in- 
 surer could set off against the loss the pre- 
 mium note, which was unpaid ; but as to any 
 other indebtedness due from H. to the insurer, 
 no setoff could Ije allowed. Aldrick v. Bquit- 
 able Safety Ins. Co., 1 "W. & M., 272, 
 
 2. Policy to Z. "for E. D. H. & Co., for 
 whom it concerns, payable to E. D. H. & Co. 
 in sixty days after proof and adjustment, the 
 amount of the premium note, if unpaid, and | 
 all suras due to the company from the insured ; 
 when the loss becomes due being first de- \ 
 ducted." JBeW, the word " insured " applied, not \ 
 to the party who procured the insurance, but '■ 
 to him for whose benefit it was made; hence, ! 
 the premium note was to be deducted from the 
 loss, whether made by the agent or the princi- 
 pal. Burlbert v. Pacific Int. Co., 2 Sumn., 471. ' 
 
 3. Insurers sued the indorser of a note, but 
 before commencement of the suit, became lia- 
 ble to the maker for a return of premium on 
 the risk. Held, the return of premium must 
 be deducted from the note, notwithstanding 
 the maker was indebted to the insurers forpre- 
 miums on other policies, and was insolvent. 
 Plmnix Ins. Co. v. Piquet, 7 Jotns., 884. 
 
 642 
 
 4. Insurers had become bankrupt and re^ 
 ceivers were appointed. After the bankruptcy, 
 a general average was adjusted, which gave 
 defendant the right to claim for general aver- 
 age. .HeJct, defendant could set off the claim 
 against an action brought upon his premium 
 note. Osgood v. De Chroot, 36 N. T., 348. 
 
 5. Insured was debtor to insurer for bor- 
 rowed money, secured by bond and mortgage, 
 and insurers were debtor to insured for a loss 
 by fire on the premises mortgaged. HeW, in- 
 sured could set off the loss against the debt. 
 If the receivers refuse to adjust the claim, a 
 court of equity will compel them. In such 
 cases, the right to setoff extends to all mutual 
 credits ex contractu. In re Globe Ins. Co. ex 
 parte Uraine, 2 Edw. Ch., 625 ; Holbrooke «. 
 American Fire Int. Co., 6 Paige, 220. 
 
 6. Promissoiy note to an insurance com- 
 pany as security to dealers. Held, the pre- 
 miums earned and paid by the maker being 
 credited against the note, the receiver was en- 
 titled to recover only the balance. Oruik. 
 shank v. Bnmer, 11 Barb., 228. 
 
 7. The premium due shall be set off against 
 & loss ascertained. Livermore v. Jfewburyport 
 Marine Ins. Co., 2 Mass., 232. 
 
 8. Stipulated : " In case of loss, it shall be 
 t)aid in sixty days after proof and adjustment, 
 the premium note, if unpaid, and all sums due 
 by the insured to thebompany when such loss 
 becomes due, being first deducted." Held, 
 debts not due by -insured to the company 
 when the loss became payable, but which had 
 become dne before judgment was rendered, 
 must be allowed. Warren v. Franklin In». Co., 
 104 Mass., 518. 
 
 9. The property of insurers was sequestered 
 and placed in the hands of receivers. Inisurcd 
 was indebted to insurers for money borrowed, 
 and insurers were liable to insured fofr alloss. 
 Held, insured could set off the claim against 
 the debt, though it was secured. Comnumieealth. 
 V. Shoe and Leather Dealers Ins. Co., 112 Mass., 
 131. 
 
 10. Policy to A. for account of whom it 
 concerns, payable to order. It was assigned 
 to a mortgagee of the vessel insured. Held, 
 insurer could set off premiums dne for other 
 policies, provided insurer had no notice of 
 the assignment prior to the time the mutual 
 claims became dne. CoTnmonwealth v. Ifational 
 Ins. Co., 113 Mass., 514. 
 
 11. Stipulated: " Loss shall1)e paid in sixtjr 
 
1285 
 
 SETOFF. 
 
 1286 
 
 When aUowed. 
 
 days after proof and adjustment thereof; the 
 amount of the premium note, if unpaid, and 
 all sums due to the company, from the in- 
 sured, when such loss becomes due, being 
 first deducted, and all sums becoming due 
 being first paid or secured to the satisfaction 
 of the said company." Seld, insured could 
 set off against his premium note a loss that 
 had accrued under the policy. Golumbian Ins. 
 Co. «. Bean, 113 Mass., 541. 
 
 12. D. procured a policy of insurance on 
 vessel, and judgment was rendered in favor 
 of D.'s executors upon it; but tlie insurer then 
 held a judgment against D., and claimed the 
 right to set off this against the other judgment 
 O. was half owner of the vessel. Held, the set 
 off must be allowed. Darrah c. Bayard, 3 
 Teates, 153. 
 
 13. An equitable assignment merely com- 
 pels the suit at law to "be in the name of the 
 assignor, but the obligor may set off against 
 the assignee's claim any demand which he 
 had against the assignor. Gourdon s. Ineur- 
 ance Company of North America, 3 Teates, 327. 
 
 14. Insured was allowed to pay the annual 
 premium quarterly on or before the 28th day 
 of November, February, May and August 
 The first was paid in August Hdd, insurers 
 were entitled to credit for the unpaid quarterly 
 premium due in November, February and 
 May. Hetterberg v. Equitable Life Ins. Co., 1 
 Cin. Sup. Ct, 483. . 
 
 1 5. The insured procured G. to effect seve- 
 ral policies, and promised, the ships should be 
 consigned to him ; that he should receive the 
 freight and reimburse himself for the pre- 
 miums. Insurers gave G. credit for the pre- 
 miums, and insured remitted to G. bills on T., 
 which were not accepted, but T. offered to, 
 and did accept G.'s bills for the amount of 
 those refused, on the security of the policies 
 which G. deposited with T. Insured con- 
 signed the ships to T., and assigned the 
 freight to him. A loss occurred. Insured 
 well knew that G. had no means from which 
 he could pay the premiums. Held, the insurer 
 could set off the premium against the loss, 
 notwithstanding the policy acknowledged pay- 
 ment thereof. Foy v. Bell, 3 Taunt, 493. 
 
 16. Insured was indebted to insurer a 
 balance of account, and became bankrupt. 
 A loss afterwards happened, by which insurer 
 became liable to the bankrupt, and the assig- 
 nee brought suit for it Held, insurer could 
 
 set off the bankrupt's indebtedness to him 
 against the loss. Oraham, v. Russell, 2 Marsh., 
 661. 
 
 17. The bankrupt had subscribed a policy; 
 and a loss accrued under it amounting to £181 
 10s. 8d. The defendant, an insurance broker, 
 was indebted to the bankrupt's estate for pre- 
 miums £177 6s. Id. The goods, upon which 
 the loss was sustained, were the property of T. 
 & Go., debtors to the broker ^1,000. The pol- 
 icy was effected in the broker's name. Beld, 
 the case fell expressly within the principle of 
 Parker o. Besley; the policy being in the 
 broker's name, he had a right to maintain an 
 action in his. own name ; and, as he had a 
 right to sue on the policy, he had a lien on 
 the goods for the premium ; hence he might 
 set off moneys due on a loss under the policy 
 against a claim for premiums claimed by the 
 assignee of the bankrupt Bavies v. Wilkin- 
 son, 6 L. J. C. P., 121. 
 
 1 8. The broker is the common agent of in- 
 sured and insurer; and if he receives notice 
 of events while the premium remains in his 
 hands which will entitle the insured to a re- 
 turn of a portion of it, he is authorized to de- 
 duct that, and pay only the difference over to 
 the insurer. Shee v. Clarkson, 12 East, 507. 
 
 19. Brokers accepted bills on account of 
 goods consigned to them and insured in their 
 own names, upon which a loss occurred; and 
 the assignees of the insurer now brought suit 
 for premium due by the brokers to the bank- 
 rupt Edd, the brokers could set off the loss, 
 although not adjusted. Parker v. Beasley, 2 
 Mau. & Sel., 423. 
 
 20. The broker had not paid the premium 
 when insurer became bankrupt, and he re- 
 insured the risks. Beld, he was entitled to 
 set off the cost of reinsuring against the claim 
 of the bankrupt's assignee. Keith v. Thomson, 
 Faculty Dec., 1792 to 1796, p. 428. 
 
 21. Insured was debtor for premiums when 
 insurer became bankrupt Beld, he could set 
 them off against a loss, the premium for 
 which had been paid. Kirk v. Bennet, Faculty 
 Dec, 1812 to 1814, p. 32. 
 
 22. F. effected a policy on his life and G. 
 became bound for the payment of the pre- 
 mium. G. paid the premium for several 
 years. The estate of F. was sequestrated 
 and Thomson appointed trustee. The pr«- 
 mium became due and G. applied to the 
 trustee to pay it, but he refused. G. paid the 
 
 64.S 
 
1287 
 
 SETOFF. 
 
 1288 
 
 When denied. 
 
 premiums, ffeld, he was entitled to all his 
 advances. Thompson v. Shepperd, 7 S. & D., 
 783; NoruDtch Int. Go. r>. Thompson, 1 Scot. 
 Jul-., 293. 
 
 II. When denied. 
 
 1. The master directed B., his agent, to pro- 
 cure insurance on his commissions, as master, 
 and a hroker eflfected the policy in the name 
 of B., on the commissions of the master 
 named in the policy. The hroker received 
 for a total loss, and claimed the right to set 
 off a deht due to him by B. BeW,, the setoff 
 could not be allowed. Foster d. Hoyt, 3 
 Johns. C, 337. 
 
 2. A member of a mutual marine insurance 
 company cannot set off a loss sustained by 
 him, adjusted and payable by the company, 
 against his indebtedness for premiums due 
 upon policies; for the premiums constitute 
 the fund, which is for the benefit of all cred- 
 itors, and to allow that would give him more 
 than a pro rata dividend. Lmorenee v. Nelson, 
 21 N, Y., 158; 8. c, 4 Bos., 240. 
 
 3. Policy to Kuger Bros., " On account of 
 whom it may concern; loss payable to the 
 Pacific Mail Steamship Co. Such loss to be 
 paid within thirty days after proof of loss and 
 proof of interest, the amount of any note or 
 notes given this company for premiums if 
 unpaid, and all other indebtedness being first 
 deducted." She sailed on the voyage and was 
 never heard of. The defendant claimed tlie 
 right to set off three promissory notes due 
 them by Ruger Bros., amounting to a sum 
 exceeding the claim. Bugcr Bros, did not 
 own or have any interest in the property in- 
 sured; it was the property of the plaintff. 
 Seld, Ruger Bros, had no right to claim or 
 recover anything under the policy; hence the 
 defendant's claim against them could not be 
 set off against the plaintiff's. Pacific Mail 
 Steamship Co. v. Great Western Ins. Co. 65 
 Barb., 334. 
 
 4. The owner of a cargo, who makes further 
 insurance upon it, because the vessel has devi- 
 ated, cannot recoup or set off tlie premium 
 paid against the freight earned. Nye v. Ayres, 
 1 E. D. Smith, 532. 
 
 6. Instired assigned his policy, to which in- 
 surer assented, and after the loss, received a 
 negotiable certificate of indebtedness, and in- 
 dorsed it to the assignee of the policy. Held, 
 644 
 
 insurer could not be allowed to set off the 
 amount of the loss against a debt due by the 
 insured to the company. Swords v. Blake, 3 
 Edw. Ch., 112. 
 
 6. Certain policies were issued to W., the 
 plaintiff^ an insurance broker, " for account of 
 whom it may concern, loss, if any, payable to 
 S." They were sent by W. to S., who retained 
 them till after the loss, but he returned them 
 to W. for collection. The vessels were owned 
 by B. ; but it did not appear that W. knew that 
 fact when the insurance was effected. When 
 they were returned to him for collection he 
 was fully informed. S. was indebted to W. 
 $1,782.17, on account of previous dealings, no 
 part of which had been paid ; but it did not 
 appear that this indebtedness was due when 
 W. first parted with the policies. Held, W, 
 could not set off the debt of S. against an ac- 
 tion brought by B. to require him to account 
 for the moneys collected, because it did not 
 appear that when he sent the policies to 8., he 
 had any lien upon them, nor did the fact that 
 they were returned to him for collection re- 
 vive any lien if he had one, for when they 
 were returned to him they came as the prop- 
 erty of another person, affected by new and in- 
 termediate equities {citing Story on Agency, 
 sec. 470). Sharp v. Whipple, 1 Bos., 557. 
 
 7. Policy to A., for whom it might con- 
 cern. Indorsed that " it was understood that 
 the insurance attached for A. B. and C, each 
 one-third, loss payable to A., all sums due the 
 insurers from the insured, being first deduct- 
 ed." Seld, the insflrer could not set off, in an 
 action brought by A. B. and C, a debt due to 
 the insurers from A. alone. WiUiarm v. Ocean 
 Ins. Co., 2 Met., 303. 
 
 8. Policy to M. & C, payable to them for 
 account of whom it may concern. Plaintiffs 
 were owners of the property insured, and the 
 policy was intended to insure them. Held, 
 insurers could not set off against the claim, 
 debts due them by M. & C. (citing William v. 
 Ocean Ins. Co., 2 Met., 303; Hurlbert s. Pa- 
 cific Ins. Co., 2 Sumn., 471). Somes v. Equi- 
 table Safety Ins. Co., 12 Gray, 531. 
 
 9. Policies to Or. and J., who became insol- 
 vent, and their assignees guarantied the pay- 
 ment of the premium note, the company 
 agreeing that the policy should continue in 
 force for the benefit of the assignees. Held, 
 insurers could not set off against the loss 
 claims which they held against C. and J., not- 
 
1289 
 
 SETOFF. 
 
 1290 
 
 When denied. 
 
 withstanding a stipulation in tlie policy Uiat 
 the amount of the premium note, if unpaid, 
 and all sums due the company ttoxa insured 
 Shall be deducted from the loss ; for it was a 
 new agreement, between insurei-s and the as- 
 signees. Tripp c. Paeifie Mat. Ins. Co., 7 
 Allen, 230. 
 
 10. A. procured insurance for the owner of 
 a vessel, giving his promissory notes for tlie 
 premium. He delivered the policy to his 
 principal, who assigned it to a bona fide pur- 
 chaser without notice. Seld, A. had not any 
 lien upon the policy, nor any claim against 
 the insurance money, nor could insurers re- 
 gard the premium as unpaid for the purpose 
 of creating a right to set it off against the 
 loss. Cranston e. Philadelphia Ins. Co., 5 
 Binn.,S38. 
 
 1 1. In an action upon a premium note, de- 
 fendant claimed the right to set off damages 
 by him sustained in removing his goods out 
 of the way of a conflagration. Seld, the set- 
 off cannot be allowed, because it would enable 
 a debtor who stood in the double capacity of 
 debtor and creditor, to get more than his 
 share of the funds of the insolvent. HiUier 
 V. AUegheny County Sfut. Ins. Co., 3 Penn. St., 
 470. 
 
 1 2. Action in the name of covenantee, upon 
 a policy for account of whom it might con- 
 cern. Held, a setoff against the covenantee 
 could not be allowed. Stetson v. Insurance 
 Co., 4 Phila., 8. 
 
 13. A mutual insurance company cannot 
 retain from a loss ascertained and admitted, 
 any portion of it to answer assessments which 
 may thereafter be rightfully made ; but they 
 are entitled to retain all such sums as may 
 have been lawfully assessed upon the pre- 
 mium note. Sieamseot Machine Co. e. Part- 
 ridge, 25 N. H., 369. 
 
 14. Policy made to F. on account of B.; in 
 case of loss, payable to F. F. was indebted 
 to the insurer when the loss became payable. 
 Held, the debt could not be set off against the 
 loss, for F. was a mere agent Braden v. Lou- 
 isiana State Ins. Co., 1 La. (O. S.), 220. 
 
 15. Insurer became insolvent; insured al- 
 lowed his policy to lapse, and suit was brought 
 upon the premium note. Held, insured could 
 not set off the cash value of the policy. NoHh 
 Carolina Life Ins. Co. t. Powell, 71 N. C , 389. 
 
 16. The plaintiffs testator, an underwriter, 
 died before certain return premiums became 
 
 due ; and the defendant, a broker, claimed the 
 right to set off these against moneys due by 
 him to the testator, neld, a broker could not 
 be an agent for the underwriter after his bank- 
 ruptcy, nor after his death. Houstounv.BoJi- 
 ertson. 1 Holt N. P., 88; 2 Marsh., 138; 6 
 Taunt, 448; 4 Camp., 342; Soustoun v.Bor- 
 denave, 6 Taunt, 451 ; 2 Mai-sh., 141. 
 
 17. A broker was indebted to the assignees 
 of the bankrupt for premiums due on policies 
 subscribed by the bankrupt before his bank- 
 ruptcy; but there were return premiums due 
 upon ships which arrived after the bank- 
 ruptcy. Held, the latter could not be set off 
 against the former. Chldsehmidt v. Lyon, 4 
 Taunt, 534; Uinelt v. Forrester, id., 541, u.; 
 GUnnie %. Edmunds, id., 775. 
 
 18. The party, well acquainted with Uie 
 facts of his own case, upon a full knowledge 
 of them for a long time, admittedHhat he had 
 no claim; after lulling the other paity to 
 sleep, lie ought not to be permitted to establish 
 a setoff. Baker v. Langhorn, 6 Taunt., 519; 
 s. c, 4 Camp., 396; 2 Marsh., 215. 
 
 19. A broker was indebted for premiums 
 on policies subscribed by a person who had 
 since become bankrupt He held a del credere 
 commission on one of the policies upon which 
 a loss happened before the bankruptcy. The 
 broker was not entrusted with the custody, 
 but paid a loss on it before fJie commission 
 was issued. Seld, he could not set off that 
 loss against the premiums which were due to 
 the assignees of the bankrupt Peele v. North- 
 eote, 7 Taunt., 478; s. c, Moore, 178. 
 
 20. The broker is entitled to receive pay- 
 ment of a loss from the insurer in money and 
 a custom to set off a general balance due from 
 broker to insurer is illegal. Todd v. Beid, 4 
 B. &A.,210. 
 
 21. B. became an insurer for various risks 
 procured by A. for his principals, upon which 
 the premiums were due and unpaid. Seld, 
 A. could not set off the losses or the return 
 premiums against B.'s assignee in bankrupt- 
 cy, who sued for the premiums due the bank- 
 rupt. Wilson o. Creighton, 3 Doug , 132. 
 
 2?. The insurance broker had notice the 
 policy was made by an agent for an undis- 
 closed principal. Held, the broker could not 
 set off a general balance which he had against 
 the agent, against a loss under the policy. 
 Uaanss f>. Henderson, 1 East, 335; Man v. 
 Shiffner, 2 id., 528. 
 
 643 
 
1291 
 
 SHIP- OR SHIPS. 
 
 129S 
 
 Of shipments by " sliip or ships " — Of steamsliips. 
 
 23. The executor sueJ the broker for pre- 
 miums. Udd, tlic broker could uot sctotf a 
 loss which occurred after the testator's death. 
 BeckwiiJi v.£ulUn,S EJ. & Bl., 083; s. c„ 4 
 Jur. (N. S.), 558; 27 L. J. Q. B., 162. But the 
 rule is otherwise, where the uudcrwrjter be- 
 comes a bankrupt. See Koster v. Eason, 3 
 Mau. & Sel., 113; Lee n. Bullen, 8 El. & Bl., 
 693 n.; 4 Jur. (N. S.), 557; 37 L. J. Q. B., 161. 
 
 24. Insured had executed a deed of inspec- 
 torship under tlie bankrupt act of 1861, 24 
 and 25 Vict., oh. 134, sec. 192, but he brought 
 this suit on behalf of tliird persons, -who had 
 made advances upon the shipping documents 
 and policy of insurance. The nominal plaint- 
 iff was indcbtcdto the defendants, £47 15s. lid., 
 who had taken two dividends under the deed 
 of inspectorship. Held, in respect of a de- 
 mand which could not pass to the assignee in 
 bankruptcy, a plea of mutual credit would be 
 inapplicable, hence the setoff could not be al- 
 lowed. J}e Maiioi v. Sawidiri, 7 L. K. C. P., 
 570; s. c, 20 W. R.,.801; 27 L. T. (N. &.), 120. 
 
 25. A. became debtor to B. He assigned a 
 policy on his life to B., with power to take the 
 money and account fqr whatever he might re- 
 cover beyond the amount of tlie debt. Sub- 
 sequently A. granted B. a bond for another 
 debt. Tlic bond did not refer to the former 
 transaction nor to the policy. Ileld, B. could 
 not apply any of the money to the extinguish- 
 ment of the bond. National Bank of Scotland 
 V. Forbes, 21 C. C. S., 79. 
 
 26. Action was brought to recover the pre- 
 mium and policy. Insured pleaded a loss 
 against the same company upoa another pol- 
 icy. Ildd, the pica must be disallowed. Al- 
 len v. Eynd, 8 S. & D., 612. 
 
 III. Of pleading. 
 
 1. To aa action for unliquidated damages, 
 tl\e defendant pleaded setoff for premiums. 
 Held, bad i)lea. Castelli v. Buddington, 1 El. 
 & Bl.„66; s. c, affirmed, id., 879; Luckie v. 
 BuMy, 13 G. B., 864. 
 
 2. lu covenant for a total loss. In one 
 count Uie interest was averred in tlie plaintiff, 
 and in another in himself and others. Plea: 
 that the plaintiff was indebted to tlie defend- 
 ant^ on his bond, maile to defendants before 
 tliey had notice tliat any person other than the 
 plaintiff' had an interest in the policy. Held, 
 Uie plea was bad, on two grounds : first, because 
 
 646 
 
 the case was for unliquidated damages; sec- 
 ond, because there was no mutuality between 
 the policy and the bond. Grant v. Royal Mx- 
 enange A»». Go., 5 Mau. & Sel,, 439; Luckie v. 
 Bushby, 13 C. B., 862. 
 
 SHIP OR smps. 
 
 I. Of sniPMENTS bz " ship ok ships.' 
 II. Op steamsuips. 
 III. Op the enkollment. 
 
 I. Of shipments by " ship oe ships." 
 
 1. The name of a certain ship was inserted 
 in the po]icy,.and following that these words 
 were inserted, "or by whatever other name the 
 ship shall be called." Held, they were intend- 
 ed to provide for a mistake in the name. Le 
 Mesurier e. Vaugltan,Q East, 383; HaU v. MoU 
 ineux, id., 385 n. 
 
 2. Two policies were made for different sums 
 on goods on " ship or ships," for the same 
 voyage. Goods were laden in two ships of 
 unequal values,, but in the aggi'egate nearly 
 the sum of botli policies. One ship arrived 
 safely, but the other was lost. Held, insured 
 might apply either policy to the ship lost 
 Henclman v. Offley, 2 H. B., 345 note. 
 
 3. Policy on goods to be thereafter declared 
 by ship or ships. The broker by mistake 
 made a written declaration as to the names of 
 certain ships, in which there were no goods 
 for the insured. There were goods by another 
 ship, and the defendant was asked to correct 
 the mistake, but he refused to do so. The 
 goods were subsequently lost. Held, the dc- 
 clai'ation of interest did not require the insur- 
 ers? assent, for it was the mere exercise of a 
 power conferred upon the insured. liobinson 
 ■V. Totaay, 3 Camp., 158; 1 Mau. & Sel., 317. 
 
 II. Of steamships. 
 
 " On cargo on boai-d the steamship Indian 
 Empire." Held, the word "steamship" im- 
 ports a three masted, square rigged vessel, 
 capable of being propelled by sails or steam, 
 or either, and is in itself a warranty that she 
 is fUlly and adequately equipped, manned and 
 provisioned as a steamer and as a sailing ves- 
 sel. Howard v. Orient Mut. Ins. Co., 2 Rob. 
 (N. Y.), 539. 
 
1293 
 
 SHIP OWNER'S LIABILITY — SICKNESS, DISEASE. Etc. 
 
 1294 
 
 Ot untrue answers which vitiate the policy. 
 
 III. Of the bnkollmknt. 
 
 Time policy on tlie " Vjaj." She was to- 
 tally lost She bad been, built upon the keel, 
 float and naval timbers of the sloop "So- 
 phronia," the size of whiclx was enlarged 
 nearly twelve tgnsi^and the name of " Mary " 
 given to the craft after she was so enlarged. 
 The enrollment of the " Sophronia " was not 
 surrendered to the custom house 1)efore tlie 
 enrollment of the "Mary" was procured. 
 Held, although her register was obtained with- 
 out conforming to the laws of the United 
 States relating thereto, that did not vitiate the 
 contract of insurance. Oeean Int. Go. v. PoUey*, 
 13 Pet, 157. 
 
 SHIP OWNER'S LIABILITY. 
 
 On ship $18,000, valued at $18,000, voyage 
 to Havre. She came in collision with a 
 barque. Both vrere damaged. She arrived at 
 Havre, delivered cargo and received &cight 
 $13,000. An adjustment was made for a gen- 
 eral average, in which her contributory value 
 was placed at $6,000. The damages by collis- 
 sion were repaired at an expense of $9,000. 
 Insurers paid their proportion of the general 
 and particular average. On her arrival in 
 London she was libeled by the owners of the 
 barque and condemned, in damages and costs 
 of defending the suit paid by insured amount- 
 ing to $10,000. feiti, the ship owner's liability 
 was not to be measured by what the ship was 
 worth after she had, by the misconduct of her 
 agents, committed the iignry which had re- 
 duced her value, for that would be almost an 
 absolute refusal of redress, if not a denial of 
 the sufferer's rights; that the rule which ex- 
 isted prior to the enactment limiting the ship 
 owner's liability, remains unchanged in this 
 respect; and that liability was to be ascer- 
 tained by determining the value of the ship 
 at the point of time immediately preceding 
 the injury upon the other vessel; and insurer 
 was liable to insured for the aggregate 
 amount of the damages which insured had ; 
 paid under legal compulsion. W(Mer o. Bos- 
 ton Im. Co., 14 Gray, 288. I 
 
 SICKNESS, DISEASE, OR EMPLOY- 
 MENT OF A PHYSICIAN. 
 
 I. Of xtntrub asswkrs, which vitiate 
 
 THE POLICT. 
 
 II. Op volunteer unFOSMATiON, which 
 
 DOES NOT VITIATE THE POLICY. 
 
 UL Of temporakt ilij;^s and latest dis- 
 ease. 
 rV. What must be disclosed. 
 
 y. NEED not be disclosed. 
 
 YI. QCKBTIONS FOB THE JTTBT. 
 
 I. Of ttntefk auswbes, which vitiatb 
 
 THE POUCT. 
 
 1. The applicant was asked whether he 
 ever had rupture, or certain diseases enumei^ 
 ated, to which he answered: "None." The 
 policy referred to the application, and stipu- 
 lated that if any of the answers stated in it 
 " shall be found in any respect false or fraud- 
 ulent, this policy shall be null and void." The 
 defendant claimed that the applicant was af- 
 fected with hernia before the policy was 
 issued, and that his answer in that respect was 
 false and untrue, and requested the court to 
 charge that if the answer was false and untrue, 
 then the policy was void, and no lecovery 
 could be had upon it But the court qualified 
 the request by adding the word " materially." 
 HM, error. Defendants were entitled to the 
 charge without any qualification whatever, 
 for the parties themselves had adjudged and 
 agreed what should be the result if certain 
 facts existed. The only questions for the jury 
 to have determined were, first. Was the repre- 
 sentation made? Second, Was it false? U. 
 S. S. C. .^tna Life Ira. Go. v. France, 8 ChL 
 Leg. News, 202 ; 5 Ins. L. J., 257. 
 
 2. The application provided that any un- 
 true or fraudulent answers, or any suppression 
 of facts, should render the policy null. This 
 question was propounded ; " Have you ever 
 had paralysis'" Answer: "No." He had 
 two attacks of paralysis prior to the making 
 of the application, of an alarming character, 
 so considered by his physician, his neighbors 
 and himself. Hdd, plaintiff was not entitled 
 to recover. Barteaa v. Phanix Mutual Life 
 Int. Go., 1 Hun. (N. Y.), 430; s. c, 3 N. Y. S. 
 C, 576; Baker «. Home Life Ins. Go., 2 Hun. 
 (N. Y.), 403; s. 0., 4 N. Y. S. C^ 582. 
 
 647 
 
1295 
 
 SICKNESS, DISEASE, Etc. 
 
 1296 
 
 Of untrue answers, wlmdi vitiate the policy. 
 
 ^ 3. Stipulated : " The auswera and declara- 
 tions of the person whose life is insured 
 shall be a part of the policy, and if they shall 
 be found in any respect false or fraudulent, 
 the policy shall be void." In the series of 
 printed questions, annexed to and made part 
 of the policy, he was asked whether he ever 
 had spitting of blood or disease of the lungs, 
 to which he answered, " No." He had been 
 wounded twice while in the army, and on his 
 passage from New York to California, had a 
 slight heliiorrhage, which lasted, on and off, 
 for two days.' He had to be carried on a 
 stretcher from the steamer to the cars at A.s- 
 pinwall, and from thence at Panama to the 
 steamer, on the Pacific side. He again had 
 hemorrhage at the barracks in California, 
 which lasted nearly ten days, during which 
 time he raised blood twice a day, morning 
 and evening. Eeld, the answers and declara. 
 tions were warranties, a breach of which pre- 
 cluded the plaintiff from any recovery. Foot 
 V. uEtna Life Ins. Co., 4 Daly, 385. 
 
 4. The life proposed was required to state 
 the name and residence of his usual medical 
 attendant. He answered, " Have none." Dr. 
 B. testified that he was his family physician; 
 that he prescribed for his family in 1863, at 
 his own office, oh four different occasions; 
 that about three years thereafter he called at 
 the house of the insured, who then had some 
 trouble with his bowels in the form of colic; 
 that he prescribed again wh'ten he had fiatulent 
 constipated colic. Held, no recovery could be 
 had, for the policy warranted the truth of the 
 answers. Monk v. Union Mutual Life Ins. Co., 
 6 Rob. (N. Y.), 455. 
 
 5. Insured answered that he could not say 
 he was afflicted with any disease or disorder, 
 but that he was troubled with general debility 
 of the system. The fact was that the symp- 
 toms of consumption had developed them- 
 selves five months before to such an extent as 
 to induce a reasonable belief that the appli- 
 cant had consumption. fieW, the policy was 
 void, and it was immaterial whether his 
 answer was intentionally false or in accord- 
 ance with his belief. Vose -o. Eagle Life and 
 Beam Ins. Co., 6 Cash., 42. 
 
 6. The applicant was asked whether he 
 ever had bronchitis. He answered, "No." 
 Evidence was given tending to show he had 
 suffered from chronic bronchitis, and had 
 been treated for that disease by physicians, 
 
 648 
 
 prior to the date of application. Held, the 
 question for the jury to determine was, whetli- 
 er the representations were substantially un- 
 true, for if the insured actually had either of 
 the diseases or infirmities mentioned, the pol- 
 icy was void, and it was not proper to sub'' 
 mit to the jury- any question of materiality 
 upon them. Campbell v. New England Mu- 
 tual Life Ins. Co., 98 Mass., 881. 
 
 7. Stipulated : " To be void if the declara- 
 tion and answers made by the insured, and 
 upon the faith of which this agreement is 
 made, shall be found in any respect untrue." 
 Held, the answers referred to were not warran- 
 ties, but were material representations, made 
 material by the agreement of the parties; 
 henpe their truth alone was the only question 
 for the jury to consider; and though they 
 wei-e merely untrue, that would be sufficient 
 to defeat plaintiff's action (citing Anderson a. 
 Fitzgerald, 4 H. of L. Cas., 484; Campbell v. 
 New England Ins. Co., 98 Mass., 381). Mu- 
 tual Benefit Life Ins. Co. «. Wise, 34 Md., 583. 
 
 8. Policy made September 3, 1869, stipu- 
 lated : " If the declaration made by or for the 
 assured, upon the faith of which the contract 
 is made, shall be in any respect untrue, the 
 policy shall be null and void, and the answers 
 stated in the application by the person pro- 
 posed, his physician and friend shall be the 
 basis of tlie agreement." In it the question 
 occurred, whether he had spitting, of blood, or 
 cunsumption; to which he answered, "No." 
 Another question was propounded, viz: "Has 
 the party had any sickness within the past tea 
 years ; if so, what ? " Answer. " Yes, scarlet 
 fever, eight yeai's ago." Another question 
 was propounded: "Has the party now any 
 disease or disorder; if so, what?" Answer. 
 " No." Two months prior to the date of the 
 policy, the person insured had bleeding of tlie 
 lungs several times, very badly, having fre- 
 quently spit up more than a tumbler full of 
 blood. About the same time a physician ex- 
 amined him and found he had tubercles in 
 one of his lungs. Hdd, it was the duty of the 
 juiy to have found that prior to the issuing of 
 the policy the deceased had spitting of blood, 
 and that he had sufficient reason to believe 
 tliat he had consumption ; for there was no 
 confiicting testimony on the question. Held, 
 also, any untrue statement made by insured in 
 answer to the questions propounded rendered 
 the policy void, and ijt was unnecessary to in- 
 
1297 
 
 SICKNESS, DISEASE, Etc. 
 
 1298 
 
 Of untrae answers, which vitiate the policy. 
 
 quire whether they were or not material, or 
 whether at the time they were made, insured 
 knew that they were untrue. Mutual Benefit 
 Life Ins. Go. v. Miller, 39 Ind., 475. 
 
 9. The answers made by insured, to inter- 
 rogatories propouuded by insurer upon the 
 faith of which the policy was prediuated, 
 were wai-ranties. Held, it was immaterial to 
 inquire whether the insured knew that they 
 were true or untrue, and that, therefore, inter- 
 rogatories propounded to the plaintiff, calling 
 for her knowledge on the subject, were prop- 
 erly stricken out. MutvMl Benefit Life Ins. Co. 
 u. Gannon, 48 Ind., 264. 
 
 10. The applicant stated in answer to a 
 question propounded in the application, that 
 he never had rheumatism. The evidence 
 showed that he had subacute rheumatism, 
 and plaintiff was permitted to prove in rebut- 
 tal, that subacute rheumatism did not shorten 
 life. Hdd, error, for by the terms of the con- 
 tract, the parties agreed that the questions and 
 answers were all material. Price v. Phoenix 
 Mutual Life Ins. Co., 17 Minn., 497. 
 
 11. Among the questions propounded to 
 insured, was the following: "Have you had 
 any serious illness, local disease or personal 
 injury, and if so, of what nature, and how 
 long since ? " The answer was, " Not any." 
 There was evidence tending to show that he 
 had consumption or tubercles on the lungs 
 and tubercles on the brain. Beld, it was the 
 duty of the court to instruct that tubercular 
 affection, or tubercles upon the lungs, or 
 tubercles on the brain, or consumption, or 
 either of them, would constitute local disease 
 within the meaning of the word local. Scoles 
 V. Universal Life Ins. Co., 43 Cal., 523. 
 
 12. F. proposed to a life company for a pol- 
 icy on his life. He was asked these questions : 
 " Did any of the party's near relations die of 
 consumption or any other pulmonary com- 
 plaint? Has the party's life been accepted or 
 refused at any office ? " To each of them he 
 replied : " No." And it was agreed by both 
 parties that the particulars mentioned in the 
 above proposal should form the basis of the 
 contract. The policy provided that if any- 
 thing warranted shall be untrue, or if any 
 circumstance material to this insurance shall 
 not have been truly stated, the policy shall be 
 void, and the moneys paid forfeited. The 
 policy stated that several matters were war- 
 ranties; but as to the two questions above 
 
 mentioned they were not included in the war- 
 ranty. Two sisters of the insured died of 
 consumption at the ages respectively of sixty, 
 five and sixty-seven years. Held, it wsis suffi- 
 cient for defendant to prove that the answers 
 given 1 to the two questions were untrue; that 
 whether they were material or not, was not a 
 necessary inquiry. Anderson v. Fitzgerald, 4 
 H. L. Cas., 484; 17 Jur., 995; s. c, 3 Ir. C. L. 
 Rep., 475 ; reversing s. c, 1 id., 251. 
 
 1 3. A declaration was signed by the insured, 
 in which it was agreed : " If any untrue aver- 
 ment is contained herein, or if any of the 
 facts required to be set forth in the above pro- 
 posal are not truly stated, the premiums shall 
 be forfeited and the policy void." The life 
 insured, at the time the policy was made, had 
 a disease tending to shorten life, of which in- 
 sured seemed to have had no knowledge. 
 Hdd, the facts set forth in the declaration 
 were not truly stated ; that a statement is not 
 less untrue because the party making it was 
 not apprised of its untruth ; hence the policy 
 was void and the premiums forfeited. Duckett 
 V. Williams, 4 Tyrw., 240; b. c, 2 Cromp. & 
 M., 348; 3 L. J. (N. S.) Ex., 141. 
 
 14. Stipulated: "In case any untrue or 
 fraudulent statement is contained in any of 
 the documents addressed to or deposited with 
 the company, in relation to the within insur- 
 ance, whether by the payee, the assured, or 
 any referee or other person, then the policy 
 shall be void." Insured was asked whether 
 he had since infancy any or what other dis- 
 eases requiring confinement, to which he an- 
 swered, " No." He was also asked, " How 
 often has medical attendance been required;" 
 to which he replied, "Two years ago; that it 
 continued about one week for a disordered 
 stomach ; that he was confined to the house or 
 bed a. week, and that it occurred about one 
 year prior to the application, which was dated 
 January 6, 1857. On being asked to give the 
 name of the medical attendant, he stated Dr. 
 Roper. It appeared that Dr. R. attended him 
 in December, 1855 ; that in January following 
 he was at Binningham, had a relapse, and 
 was attended by Dr. C; that his illness there 
 was so severe that three physicians in attend, 
 ance despaired of his life. Held, the policy 
 was void, notwithstanding the jury found 
 specially that the informatibn withheld was 
 not material, and that there was no inten. 
 tional fraud. Cazenove v. British Equitable 
 
 649 
 
1299 
 
 SICKNESS, DISEASE, Etc. 
 
 1300 
 
 Of volunteer informatioii, etc. — Of temporary illness and latent disease. 
 
 .488. Co., 6 C. B. (N. S.), 437; 5 Jur. (K, S.). 
 1309; 28 L. J. C. P., 259; affirmed, 29 L. J. C. 
 P., 160; 6 Jur. (N. S.), 826; 8 W. R., 243. 
 
 1 5. The policy recited that the insured had, 
 signed a declaration setting forth that the age 
 of insured. did not exceed fifty years; tliat he 
 was then, in a state of perfectly good health, 
 and not sulyect to any disease which tended, 
 to shorten lifCj except a tendency to \ieeak, 
 bowels only; that his habits of living were 
 then, and always had been, active and strictly 
 temperate^ and that said declaration, was re- 
 ceived as the basis and condition of the con- 
 tract, and that in case any untrue or fraudu- 
 lent allegations were contained in said ie- 
 claration or that information respecting the 
 past health or habits of the life of insur«d, or 
 any material fact connected with the health 
 or habits of the insured, or other circumstance 
 important for the insurers to know, had been 
 withheld from them, then the policy should 
 be void." He was asked in the declaration 
 mentioned to give a reference to his usual 
 medical attendant, or the medical attendant 
 of his family, to which he replied that he 
 never had a medical attendant until Dr. L. 
 dressed his leg when it was scalded, whose 
 certificate accompanied the declaration. The 
 defendants called Dr. C, who testified that 
 about eighteen months before the declaration 
 was made, he attended insured, who then had 
 influenza; that about a year tiiereafler he at- 
 tended him for some uneasiness of the bowels, 
 and again about a month before the declara- 
 tion was signed, he gave him a prescription 
 tbr a severe contusion on the shoulder, 
 accompanied by febrile symptoms. Held, 
 the failure to state the fact that he had been 
 attended by Dr. C. was not of itself enough to 
 vitiate the policy ; that ini order to defeat the 
 plaintiff's right to recover it must appear that 
 the facts not communicated were material, 
 because only the matters contained in the dec- 
 laration and recited in the policy were to be 
 regarded as warranties; that as to matters 
 stated in the declaration not recited in the 
 policy tliey were to betaken into considera- 
 tion only so far as they were material. Sean- 
 Ian, V. Scealt, 5 Ir. L., 139. But this was re- 
 versed in the Exch. Cham., and it was there 
 held that all the' matters stated in the declara- 
 tion were warranties, and that it was imma- 
 terial to inquire whether the facts suppressed 
 were fraudulentiy withheld., s. c, 6 id., 367. 
 650 
 
 Upon the third trial the court held that it was 
 a question for tlie jury to determine whether 
 the deceased had been attended by Dr. C, and 
 they having found that issue against the de 
 fendant, the court would not disturb their 
 finding, s. c, 13 id., 71. 
 
 16. The declaration stated that the life pra 
 posed was in perfect health, and that the gen. 
 eral state of his- health had been always good, 
 ffeldf an express wan-anty as to tba matters 
 stated. Forbeg a. Mdinbmrg Life Ass. Co., 10 
 S. & D„ 451 ; 4 Scot. Jur., 385. 
 
 II. Of VOLUNTEEE INFOEMAXIOISf WHICH 
 
 DOES NOT VITIATE THE POLICY. 
 
 By express stipulation answers to the ques- 
 tions propounded in the application were 
 made warranties, the policy to be void in case 
 any of tliem " Be not in all respects true and 
 correctly stated." Among the questions pro- 
 pounded was the fallowing: "Has father, 
 tnotUer, brother or sister of the party died or 
 been afflicted with consumption or any dis- 
 ease of the lungs, or insanity i If so, state 
 full particulars of each caae." Answer: "Ko. 
 Father died from exposure in water, aged 58.. 
 Mother living, aged 50." Defendant pleaded 
 that the father did not die of the age of 58; 
 that he died before he was thirty years old, 
 wiierefore said policy was and is void. 3eid, 
 upon demurrer to Ibe plea, the age at which 
 the father died was not called for by the ques- 
 tion. The word " no " was a complete answer 
 to it. That the remainder of the answer was 
 a volunteer statement and irrelevant Where, 
 the answers are responsive to direct questions, 
 they are to be regarded as warranties.; where, 
 they are not responsive, but volunteered, they 
 must be construed as mere representations 
 wbicli constitute no defense to the action un- 
 less tliey were material to the risk. Demurrer 
 sustained (N. D. of Ohio). JiueU o. ConneUi- 
 cut Uvtual Life Ins. 6o., 8 Chi. Leg. Kews, 
 202; 5 Ins. L. J., 274 (see Hartford Protection 
 Ins. Co. v. Harmer, 2 Ohio St., 452) 
 
 III. Of tempobaey illness and la- 
 
 tent DISEASE. 
 
 1. The person proposed stated in the appli- 
 cation, that daring seven years preceding, he 
 had not any sicknes or disease; but the evi- 
 dence showed that he had been attended with- 
 
1301 
 
 SICKNESS, DISEASE, Et&. 
 
 1302 
 
 Of temporary illness and latent disease. 
 
 in that time for indigestion, torpid liver, colic 
 and cramps in tlie stomach. Held, it was 
 proper to tell the jury that it was for them to 
 determine whether the person whose life was 
 insured had any affliction tJiat could prop- 
 erly be called a sickness or disease; that a 
 man might have a slight cold in the head or 
 headache, which in no way seriously affected 
 his health or interfered with his usual avoca- 
 tions, which might be of so trifling a character 
 as not to constitute sickness or disease within 
 the meaning of the term ; that he might have 
 a cold or headache of so serious a character 
 as to be a sickness within the meaning of tlie 
 term. Life Insurance Go. «. Franei%eo, 17 
 WaU., 672. 
 
 2. The application, part of the contract, 
 contained this question: "Has the party had, 
 during the last seven years, any severe sick- 
 ness or disease ? If so, state the particulars, 
 the name of the attending physician, or who 
 was consulted and prescribed." Answer. 
 " No." It appeared that a physician attended 
 deceased within the period mentioned, for 
 diarrhea or affection of the bowels, for a 
 period of two months, when she recovered. 
 The witness stated that if it lasted only a few 
 weeks it could not be called chronic. Emi- 
 nent medical witnesses were uncertain as to 
 what might be called chronic disease of the 
 bowels. Held, the question and answer did 
 not refer to the ordinary diseases of the coun- 
 tiy which readily yield to medical treatment, 
 and leave no permanent injury to the physical 
 system, bat to severe attacks which often 
 leave a permanent injury and tend to shorten 
 life. HoOoman v. Lifelm. Go., 1 Woods, 674; 
 Southern Life Ins. Co. «. Wilkinsoji, 53 6a., 
 535. 
 
 3. The premium was not paid according to 
 the stipulation mentioned in the policy, but 
 the defendants accepted it seven days thereaf- 
 ter, giving a receipt for it upon condition 
 " that he is now in good health, proof of which, 
 in case of death, to be furnished the company." 
 Held, the word "good" is comparative; it 
 does not mean absolute perfection ; that good 
 health does not necessarily mean that the per- 
 son is absolutely free from all the ills that flesh 
 is heir to; that if the insured was in the same 
 sanitary condition at the time the policy was 
 renewed, that he was represented to be when 
 the policy was made, he was in good health 
 -within the meaning of the condition. Peacock 
 
 V. Nea York Life Ins. Go., 20 N. Y., 293 ; s. c, 1 
 Bos., 338. 
 
 4. The person whose life was insured had 
 been in the habit of taking applications for 
 the defendants, whose president had cautioned 
 deceased against taking applications from in- 
 sane persons, or persons who were in the habit 
 of drinking to excess. Deceased made his 
 own application ; but twenty years prior, he 
 was ill with fever, and more or less insane; 
 and sixteen years thereafter he was again in- 
 sane, but from what cause did not appear. 
 These facts were not disclosed to the insurers. 
 Held, no evidence of a fraudulent concealment. 
 MaUory v. Trmelers Ins. Go., 47 N. Y., 52. 
 
 5. Among the printed questions was this: 
 " Are the functions of the brain, the muscular 
 and nervous system, in a healthy state ?" The 
 company's medical examiner wrote the answer 
 affirmatively, and testified that he put the 
 question as ftiUows : " Have you ever had any 
 difficulty with your head or brain?" to 
 which the applicant answered, " No." Hdd, 
 the question as put was not intended to in- 
 clude a temporary or occasional physical dis- 
 turbance, the result- of accidental causes. Hig- 
 bie V. Chtardian Mutital Life Ins. Go, 53 N. Y., 
 603. 
 
 6. The application stated that insured never 
 had any illness or local disease, and that he 
 had never been attended by a physician ; that 
 his vocation was that of a traveling agent. 
 The policy stipulated that the statements in 
 the application were warranted as true. Some 
 years prior to the making of it he had a slight 
 disease of the eyes, known as conjunctitis; 
 that he had been attended by a physician from 
 November 7th to December 1st; that he was a 
 painter by trade, and worked at it till he went 
 into the army. Held, the question was prop- 
 erly one of fact, for the jury to determine, 
 whether insured had such sickness or disease, 
 whicli ought to have been communicated to 
 insurers. Reversing s. c, 2 N. Y. S. C, 247, 
 and directing judgment to be entered upon the 
 verdict for the plaintiff. Pitch v. American 
 Popular Life Ins. Go., 59 N. Y., 557. 
 
 7. The life of P. was insured for W. Dec- 
 laration signed by F. stated that he had not 
 been afflicted with spitting of blood, and was 
 not Uien afflicted with any disorder which 
 tended to shorten life. W. also signed a state- 
 ment in which he declared that to his knowl- 
 edge F. had not been afflicted with spitting of 
 
 651 
 
1303 
 
 SICKNESS, DISEASE, Etc. 
 
 1304 
 
 Of temporary illness and latent disease. 
 
 blood, and that lie was not then afflicted with 
 any disorder which tended to shorten life. The 
 policy stipulated that if the declaration thus 
 made by W. should in any respect be found 
 untrue, the policy should be null and void. In 
 this action to recover back the money paid 
 under the policy, the court charged : " If the 
 person whose life was iusured had at any time 
 ou or before the date of the policy, either spit- 
 ting of blood within Uie meaning of the pol- 
 icy, or any disease which tended to shorten 
 life, and the defendant knew it when the pol- 
 icy was eflFected, then the plaintiffs are enti- 
 tled to recover all the money paid by them, to- 
 gether with interest; but if the person insured 
 had none of the diseases, or if lie had either of 
 them and W. did not know it, then the plaint- 
 iflfs could not recover. Held, no error. Mu- 
 tual Life Ins. Co. 11.' Wager, 27 Barb., 354. 
 
 8. The applicant was asked whether he had 
 any disease of certain organs, to which he an- 
 swered negatively. Held, he did not warrant 
 himself sound as to those organs ; and it was 
 satisfied if he was in the enjoyment of such 
 Iiealth and strcngtli as to warrant the belief 
 that his vital organs were all sound. Horn o. 
 Amicable Mutual Life Im. Co., 64 Barb., 81. 
 
 9. Insured, being asked whether he had 
 been afflicted with certain diseases specifically 
 mentioned, answered, "no." He was tl'.en 
 asked whether he had any sickness within ten 
 years, to which he answered, " no." There 
 was evidence that he had pharyngitis, an in- 
 flammation of the throat, when slight, not 
 called a sickness, nor likely to shorten life. 
 The policy provided that it should be void if 
 any of the answers to the questions propound- 
 ed in the application were untrue. Held, if, 
 as matter of law, policies are to be avoided 
 because insured failed to make known that he 
 had inflammation of the throat within ten 
 years anterior to the making of the policy, 
 then they are mere devices by which insur- 
 ance companies obtain money without be- 
 coming liable. It was a question for the 
 jury to determine, whether inflammation of 
 the throat was a sickness contemplated by the 
 parties when tlie question was propounded 
 and the answer given. MviuoH Benefit Life 
 Ins. Oo. 0. Wise, 34 Md., 582. 
 
 10. The following questions and answers 
 occurred in the application: "Is the party 
 subject to dispepsia, dysentery, diarrhtea?" 
 Answer, " No." " Is the party now afflicted 
 
 6S3 
 
 with any disorder or disease, and if so, what ?" 
 Answer, " None." " Has the party employed 
 or consulted individually any physician? 
 Please answer this yes or no. When yes, 
 give name or names and residence." Answer, 
 " None." The application was made Decern, 
 ber 16, 1872, and he died Januai7 25, 1873. 
 The attending physician testified that the 
 cause of death was severe intermittent fever. 
 He had known deceased for two years ; that 
 he was not a very healthy person; looked 
 rather thin, and somewhere between six and 
 eighteen months prior to his death, he had an 
 abscess under his arm, for which witness atr 
 tended him four or five times. Two physi- 
 cians who heard this witness relate all the 
 symptoms, testified that he died of pyaemia, 
 caused by the absorption of purulent matter 
 in the blood. Held, the fact that the insured 
 employed a physician within six months or a 
 year before making the application did not 
 render the policy void, for the question in that 
 respect was not definite as to time, and it could 
 not be construed to cover the whole period of 
 the life of the deceased. 111. S. C. World 
 Mut. Life Ins. Co. n. ScliuUz, 5 Ins. L. J., 34. 
 
 1 1. On the life of a slave, made June 2l8t. 
 " Warranted that he had no chronic disease 
 at the time it was made." He died October 
 23d following, and a post mortem examination 
 was made fifteen hours after death. The phy- 
 sicians were of opinion that he died of infiam- 
 niation of the intestines, and that it was of 
 long standing. Held, the proof did not show 
 the disease existed when the insurance was 
 effected. Murphy n. Mutual Benefit Life and 
 Fire Ins. Co., 6 La. An., 518. 
 
 12. Stipulated: " If the answers to the ques- 
 tions contained in the application shall be 
 found in any respect untrue, the policy shall 
 be void." One of the questions was whether 
 the party had ever met with an accidental or 
 serious injury, to which it was answered, 
 "no." The jury found that the insured had 
 fallen from a tree ; that the injury was tern, 
 porary and passed away without affecting the 
 health of the assured. Held, it did not pre- 
 vent a recoveiy. Wilkinson ». Connecticut 
 Mutual Life Ins. Co., 30 Iowa, 119. 
 
 13. The applicant stated that he never had 
 rheumatism, but there was evidence tending 
 to show that he had subacute rheumatism. 
 Held, any rheumatic affection, not amounting 
 to the disease of rheumatism, was not within 
 
1303 
 
 SICKNESS, DISEASE, Etc. 
 
 130<? 
 
 What must be disclosed. 
 
 the term, no more than the spitting of blood, 
 occasioned by a wound of the tongue or the 
 extracting of a tooth, is the disease of spitting 
 blood. Price v. Phmnix MutuaX Life Ins. Co., 
 17 Minn., 497. 
 
 14. Policy on life. "Warranted then a 
 good life." It appeared that he had received 
 a wound at the battle of La Feldt, which oc- 
 casioned partial relaxation or palsy, so that he 
 could not retain his urine or faeces, but this 
 was not mentioned to insurei-s. He died of 
 malignant fever within the year insured. Held, 
 if it appeared that the consequences of the 
 wound were inconvenient only, and not dan- 
 gerous to life, the plaintiflf was entitled to re- 
 cover. i?os» B. Brarfsftaw, 1 W."B1., 313. 
 
 15. This claim was resisted on the ground 
 that the life insured had a disorder tending to 
 shorten life when the policy was effected, not 
 disclosed to the insurer. The disease might 
 have proceeded from either of two causes, a 
 defect of some of the internal organs, or a 
 mere dyspepsia. The first would tend to 
 shorten life ; the second would not, unless it 
 existed to an excessive degree. Held, it was 
 proper toleave the question to the jury whether 
 the disorder was organic, or by its excess tend- 
 ed to shorten life.. Held, also, though all dis- 
 orders have a tendency to shorten life, the par- 
 ties did not intend to include all, for such a 
 construction would render all lives uninsura- 
 ble. Watson D. Mainwaring, 4 Taunt, 763. 
 
 16. In the proposal delivered to insurers 
 it was stated, " insured is now in a sound and 
 perfect state of health, and has not been 
 afflicted with, nor is subject to gout, vertigo, 
 fits, hemorrhage," etc. It appeared that he 
 had an epileptic fit caused by an accident. 
 Held, that did not vitiate the contract, for the 
 warranty did not assert that the party never 
 accidentally had a fit, but that he was not at 
 the time of the insurance, a person habitually 
 or constitutionally subject to fits. Chattoek v. 
 Shawe, 1 M. & Rob., 498. 
 
 1 7. The declaration or proposal, the basis 
 of the contract, stated that his age did not ex- 
 ceed 29 years ; that he was then in good health ; 
 that he was not aware of any disorder or cir- 
 cumstance tending to shorten his life, or to 
 render an insurance on it more than usually 
 hazardous. It appeared that two years prior 
 he had two severe bilious attacks, but the 
 physician who attended him testified they did 
 not tend to shorten his life or render it less 
 
 insurable. Two other medical men gave it as 
 their opinion tliat those attacks did tend to 
 shorten his life, and render him ineligible for 
 insurance. Held, if the insured honestly be- 
 lieved, when he made the declaration, that the 
 bilious attacks had no effect upon his health, 
 and that they did not tend to shorten his life 
 or to render au insurance upon it more than 
 usually hazardous, the fact that he had them 
 could not defeat the policy. Jones v. Provin- 
 cial Int. Co., 3 C. B. (N. S.), 65; s. c, 3 Jur. 
 (N. S.), 1004; 26 L. J. C. P., 272 
 
 lY. What must be disclosed. 
 
 1 . The person insured died of pleura pneu- 
 monia three months after the delivery of the 
 policy. He had raised blood for two years 
 and a half prior to his death ; a physician had 
 been consulted, and had presci-ibed for him; 
 but no disclosure of these facts was made to 
 insurer. Held, fatal to the plaintifi^s right. 
 Smith V. JEtna Life Ins. Co., 49 N. T., 211. 
 
 2. The applicant was asked to state tlie 
 name of the physician usually employed by 
 him, and if he had none, to name another to 
 whom application could be made for inform- 
 ation as to the state of his health. He replied, 
 " None." It appeared that during 1861 and 1868 
 he had a severe cough, with shortness of breath 
 and profuse expectoration, for which he occa- 
 sionally applied to Dr. N., who prescribed for 
 him. He had also applied to another insur. 
 ance company for a policy, and had been ex- 
 amined by their physician who refused his ap- 
 plication. Held, a fraudulent concealment. 
 Horn %. Amicable Mutual Life Ins. Co., 64 
 Barb., 81. 
 
 3. In answer to questions propounded, the 
 life insured said he had no medical attendant 
 except Mr. Guy, of Chichester ; that he had 
 never had any serious illness. Mr. Guy, on 
 being referred to, certified that tlie life was in- 
 surable. It was proved that Mr. Guy had not 
 been called to attend him for three years prior 
 to the date of his opinion, and that two months 
 prior Vietch, a physician, and Jordan, a sur- 
 geon, had attended him for inflammation of 
 the liver, a fever, and determination of blood 
 to the head; tliat he was dangerously sick, 
 and required active medicines, and sometimes 
 sixteen leeches a day applied; and that they 
 would not have certified him in good health 
 till the end of May, which would have been 
 
 653 
 
13G7 
 
 SICKNESS, DISEASE, Etc. 
 
 1308 
 
 Wliat must be disclosed. 
 
 about two weeks after the firet policy wm 
 issued. The disease of which he died was in 
 no way connected with his previous illness. 
 Held, the policies were void. Maywird c. 
 ii/wrfe, 1 C. & P., 360 ; 3 L. J. K. B., 64. And 
 tJiis defense was valid as against the person 
 for whose beuefit the insurance was made, 
 though an entire stranger to the answers given 
 in the application. Ibid. 
 
 4. It was represented to the insurer, before 
 the policy was effected, that the life proposed 
 never had gout, asthma, apoplexy, epilepsy, 
 etc. ; that he was free from disease and symp- 
 toms of disease. It appeared that he ha. 1 been 
 afflicted with an almost total loss of speech for 
 quite a long time, which ciontinued to his death, 
 and which was attributed to local paralysis; 
 that he had catarrhal affections, accompanied 
 by fever, and was almost imbecile before the 
 policy was made. The immediate cause of 
 his death was water on the brain, produced by 
 inflammation. His head was cut open, and a 
 tumor, more than six inches long, two broad 
 and one deep, was found inside the skull, press- 
 ing upon the brain and depressing the skull at 
 its base. Medical witnesses intferred that the 
 tumor had formed before birth or in very early 
 infancy. Bdd, the policy was void. Von Lin- 
 dertau v. Dishormtgh, 3 C. & P., 353 ; 7 L. J. K. 
 B., 42; 3 M. & R., 45; 8 B. & C, 586. 
 
 5. E. held leasehold property, determinable 
 on the life of n., and was asked by an agent 
 of insurer to insure the life of H. E. had 
 never seen H., but he told the agent to make 
 the proper inquiries and do all that was re- 
 quired in the business. The ageut saw H., 
 who had all the external evidences of health, 
 and was told by him that he never had occa- 
 sion for a doctor, that " Mr. Vicary, of War- 
 minster, knows as much of me as any man." 
 Mr. V. had never attended H. professionally, 
 but he stated that he never had seen a stronger 
 or healthier man. E. signed a paper in which 
 it was stated that H. had had small pox, had 
 not had gout, and that he was not af9icted 
 with any disorder tending to shorten life. It 
 W.1S proved that H. had indulged in extraor- 
 dinary fits of intoxication, in some of which 
 he had been drunk ten days to three w^eeks 
 incessantly, swallowing anything he could get 
 into his mouth, and that he had one of these 
 drunken fits a short time before the policy 
 was made, from which he recovered, but died 
 suddenly a few days thereafter. Held, the 
 
 654 
 
 plaintiff could not recover. Everett e. Des. 
 horough, 5 Bing., 503; 3 M. & P., 190; 7 L. J. 
 C. P., 223. 
 
 6. About four years before the policy was 
 effected, the person insured had spit blood, 
 and had subsequently exhibited symptoms 
 usual in consumptive subjects. He died three 
 years after the iwlicy was made. Hdd, al- 
 though the mere fact that he had spit blood 
 would not vitiate the policy, he was still 
 bound to have stated that fact to the company, 
 that they might have ascertained whether it 
 was the result of the disease called " spitting 
 of blood." Oeaeh v. IngaU, 14 Mee. & W., 95 ; 
 15L. J. Ex., 87; 9Jur., 601. 
 
 7. In July, 1863, A. negotiated an insurance 
 on his life, and made a written declaration as 
 to his health and habits, and referred to his 
 usual medical attendants, who certified that 
 he was in good health. The company's phy- 
 sician examined and passed him as a first- 
 class life, but at an advanced rate of premium, 
 because of his excessive corpulence. Pending 
 the completion of the contract, A. consulted 
 a physician, who discovered that he suffered 
 from disease of the kidneys, and warned him 
 that care and abstinence from stimulants were 
 necessary. He completed the insurance by 
 paying the premium and accepting the policy 
 without communicating what his physician 
 had said to him. MM, the policy was void. 
 Britiih Bquitable Ins. Co. e. Cheat Western 
 Railway Co., 38 L. J. Ch., 132, 314; 17 W. R., 
 43; 19 L. T. OS. S.), 476; 20 id., 422. 
 
 8. Stipulated : " In case any untrue or 
 fraudulent allegation is contained in the 
 declaration delivered at the office of the com- 
 pany, the policy shall be void." Dated De- 
 cember 10, 1825. The medical attendant to 
 whom the insured referred was asked : " Has 
 he, to your knowledge or belief, been afflicted 
 with gout, fits, asthma, hernia or any other 
 disorder which has a tendency to shorten 
 life?" Answer: " He had fever in the year 
 1823, from which he recovered, and has no 
 disease which can tend to shorten life, in my 
 opinion." It appeared that he had been at- 
 tended in July, 1823, from time to time, till 
 December 39th, for an irritative fever, that an 
 anthrax had formed on the lower part of the 
 back of the patient and was opened ; that 
 in January, 1824, the witness attended him 
 from time to time till August in the same 
 year for the same kind of fever, during which 
 
1309 
 
 SICKNESS, DISEASE, Etc. 
 
 1310 
 
 What need not be disdoaed — Qaestkma for tho joty. 
 
 time a tumor appeared under tUe left sc^ala, 
 and extended towards tlie os sacrum, until it 
 attained the size of a man's head. This tumor 
 was opened. Amcmg his papers, after death, 
 was found a certificate signed by James 
 Dempster, M. D., referring to the tumor aud 
 fever. Seld, insured was responsible ftir the 
 trufli of his answers. If they were actually 
 false though morally true, the action must 
 foil, because the questions and answers were 
 part of the terms on which the comi)any con- 
 tracted; that the innocent omission to men- 
 tion facts not within the range of questions 
 propounded ought not to avoid the contract, 
 but the insured was bound to state every 
 material circumstance, and the fact that he 
 had such a tumor was a material circum- 
 stance which it was his dot}' to have dis- 
 closed. Altbott V. Jloaard, Hayes, 3S1. 
 
 9. The creditor eftected insurance on the 
 life of bis debtor, who subscribed a declara- 
 tion, that he was then in perfect health, and 
 that his general health bad been good. He 
 also referred to Dr. Wood, of ^Edillgurg, but 
 Dr. Wood knew nothing about his health, 
 and stated in the reference papers, that he 
 had never attended him professionally. The 
 debtor had been in the habit of eating opium, 
 and usmg laudanum and spirituous liquors 
 to a dangerous extent. Held, it was the duty 
 of the court to have instructed the jury, that 
 abandonment or waiver of reference to a per- 
 son who had attended deceased professionally 
 did not relieve him from the necessity of 
 making a full disclosure of every fact ma- 
 terial to be made known to insurers. Forbes 
 V. Edinburg Life Am. Co., 10 S. & D., 451; 4 
 Scot Jur., 385. 
 
 10. The declaration subscribed by the de- 
 ceased imported that she was in perfect health 
 when she signed it, December 3, 1833. Eleven 
 months thereafter, she died of apoplexy. It 
 appeared Uiat within a period of three months 
 immediately preceding its execution, she had 
 received constant medical attendance, had 
 heen blooded and blistered repeatedly, emet- 
 ics had been administered and her head shav- 
 ed. Between the 3d and 10th December med- 
 ical attendance had been continued, and she 
 was again blooded on the list date. Held, tlie 
 policy was obtained by concealment and mis- 
 TepresenUtion. BotAaick v. Langmvir, 15 S. & 
 D., 1805 ; s. c, BcUtton v. North BritMi Int. Co., 
 10 Scot Jut., 53. 
 
 V. What need not be disclosed. 
 
 1. Insurers relied upon the fact that a 
 renewal receipt issued after the policy 
 had lapsed for nonpayment of premium, . 
 expressed upon its face, that it was made 
 upon condition that the insured was in good 
 health at the time it was delivered. Held, 
 proper to prove that this receipt and the con- 
 dition named whs concealed fmm insured 
 on account of his critical condition; that as 
 soon as he knew of it he refused to accept it, 
 sent it back and requested a receipt without 
 condition, or the return of his money. Held, 
 also, it was unnecessary to disclose to the com- 
 pany his condition, unless the company made 
 inquiry upon that point. Mookaell v. Mutual 
 Life Ins. Go., 27 Wis., 372. 
 
 2. The plaintififs declaration stated that 
 plaintiff had made declaration to insurer that 
 the persim insured had not any disorder that 
 tended to shorten life, and that she had led 
 and continued to lead a temperate life ; that 
 the policy was made upon coniiition that if 
 anything stated in that declaration should nut 
 be true, it should be null and void, and the 
 premiums forfeited. Several questions were 
 put and answers given, when the insurance 
 was proposed, but none of -them apprised the 
 insurer that the person proposed was afSicted 
 with delirium tremens, or erysipelas in the legs. 
 Held, the wife was not the agent of the hus- 
 band for the purpose of effecting the policy; 
 that she was his agent to answer such particu- 
 lar questions as the company might choose to 
 ask her, and was to answer only such ques- 
 tions as were put. Huehman c. Pemie, 3 Mee. 
 &Wt 505; 7 L. J. (N. S.) Ex. 163; 2 Jur., 
 444. 
 
 YI. Questions foe the jitet. 
 
 1. The mere fact that shortly after the pol- 
 icy was made insured was stricken with dis- 
 ease, fiom which death resulted, is not of it- 
 self evidence that he was not in good health at 
 the time the policy was effected. Eclectic 
 Life Ins. Co. Fahrenkrug, 68 111., 463. 
 
 2. Represented in December, 1822, that the 
 life proposed was in a good state of health, 
 which was repeated in March following; and 
 an insurance effected April following. Be- 
 tween December 1822 and March 1823, she 
 had been ill with a pulmonary attack, and 
 
 635 
 
1311 
 
 SfECIAL FINDINGS. 
 
 1312 
 
 Miscellaneous. 
 
 was attended by a physician. She died of 
 pulmonary disease April 1834. Held, the jury 
 should have been directed to consider the at- 
 tendance of the physician and the cause for 
 it. Morrison v. Muspratt, 4 Bing., 59 ; 5 L. J. 
 C. P., 63; 12 Moore, 231. 
 
 3. The person proposed was asked whether 
 he had been afflicted with gout, asthma, fits, 
 or any other disorder tending to shorten human 
 life; he replied: "Neither; occasional indi- 
 gestion only." He was in a state of ap- 
 parent good health, but had been subject to 
 determination of blood to the head, and about 
 four years before the policy was made, his 
 spirits were greatly depressed, and he then 
 labored under delusions as to the supposed 
 falling oflF of his business, and to the conduct 
 of the bench and bar toward him. JSeld, 
 there were but two questions for the jury: 
 fi?'st, whether he represented truly the state of 
 his health ; second, if he did not, then did he 
 know the state of it, so as to be able to fur- 
 nish a proper answer to the question. Swete 
 v.Fairlie,6C.&P.,l. 
 
 SPECIAL FINDINGS. 
 
 1. The cause was tried by the court, pursu- 
 ant to the statute, March 3, 1865. The court 
 refused to make any Special findings of fact. 
 Sdd, the court had the right, under the 
 statute, to find specially or generally, and 
 the findings being general, nothing was open 
 to reSxamination, except tlic rulings of the 
 court made in the progress of the trial and 
 properly presented by bill of exceptions; 
 affirming s. c, 8 Blatch., 170; 9 id., 201; JVi- 
 eurance Co. v. Folsom, 18 Wall., 337. 
 
 2. The jury found specially that an aban- 
 donment was made, but they did not find 
 whether it was in due time or otherwise. 
 Jleld., an abandonment must be made in a 
 reasonable time, and the finding of the jury 
 being defective in that respect, the judgment 
 must be reversed. Chetapeakelns. Co. ®. Stark, 
 6 Cranch, 268. 
 
 3. If the jury find that which amounts to a 
 conclusion of law, the finding does not con- 
 clude the court. King v. Delaware Ins. Co., 
 6 Cranch, 71; s. c, 3 Wash. C. C, 300. 
 
 4. The submission of special questions of 
 656 
 
 fact to the jury is wholly within the discretion 
 of the court (citing Taylor v. Ketchiun, 5 Bob. 
 (N. Y.), 507; Hackford v. New York Central 
 R. R., 53 N. Y., 654. Sturm v. Atlantie Mut. 
 Ins. Co., 6 J. & 8p. (N. Y.), 281. 
 
 5. The jury may be required to state the 
 items of damage which make up or exceed 
 one half the sum insured. Orrok v. Cmrmum- 
 wealth Ins. Co., 21 Pick., 456. 
 
 6. It is within the discretion of the court to 
 require the jury to find specially. Oranes «. 
 Washington Marine Ins. Co., 12 Allen, 391. 
 
 7. When a case at law or equity is referred 
 to an auditor, bis report is prima facie evi- 
 dence only, and his findings are subject to re- 
 vision, if the evidence is properly brought be- 
 fore the court; but his findings have the 
 weight of a verdict, and when they are the re- 
 sult of conflicting testimony, they are not to 
 be set aside unless clearly erroneous (citing 
 Donnell «. Columbian Ins. Co., 2 Sumn., 366; 
 Tabor v. Jenny, 1 Sprague, 315 ; Pisk v. Gray, 
 100 Mass., 191; Dean v. Emerson, 102 id., 
 480). Paddock v. Commercial Ins. Co., 104 
 Mass., 521. 
 
 8. The jury returned a general verdict for 
 the plaintiff with several special findings in 
 answer to particular questions. The court, 
 deeming the special findings not consistent 
 with the general verdict, disregarded the 
 latter and entered judgment against the 
 plaintiff. Nothing but the pleadings, findings 
 and judgment were taken up in the record. 
 Held, every intendment must be in favor of the 
 judgment. The onus was upon the party 
 complaining to manifest by the record the 
 error alleged. Whether the general verdict 
 is inconsistent with the special findings 
 cannot always be tested by comparing the 
 special with the general findings. Hence 
 without an examination of the facts, it would 
 be impossible for the court, in many cases, to 
 say whether the general was inconsistent with 
 the special findings, therefore the court can- 
 not say tliat the court below erred in deciding 
 that the findings were inconsistent. Oilbert 
 «. American Ins. Co., 30 Mich., 400. 
 
 9. The defendant required the jtiry to re- 
 spond 'to the following question: "Was the 
 loss of the property described in the bill of 
 lading caused by a peril of river navigation ? " 
 Seld, an improper request, because it was re- 
 quiring a conclusion to be drawn from many 
 facts, and this is not contemplated by the Re- 
 
1313 
 
 STAMPS (REVENUE). 
 
 1314 
 
 When the instrument is void for want of — When not void for want of. 
 
 vision, sec. 8079. Home Ins. Co. d. Northwest- 
 ern Padcet tJo., 32 Iowa, 228. 
 
 10. The special findings of a jury cannot 
 defeat a general verdict, unless they are in- 
 consistent, and the inconsistency will not be 
 presumed ; it must appear affirmatively. Bon- 
 ham V. Iowa Central Ins. Co., 25 Iowa, S2S ; 
 Mershim v. Natunuii Ins. Co., 34 id., 87. 
 
 1 1. The court is not bound to submit to the 
 jury all special interrogatories asked by 
 counsel ; they may be changed or rejected alVj- 
 gether if immaterial. Mickey v. Burlington 
 Ins. Co., 35 Iowa, 174. 
 
 12. The special verdict was silent as to 
 whether the owner would have repaired her if 
 he had been at the place where she was re- 
 paii'ed. Held, the court could not infer that 
 he would not have repaired her if he had been 
 there. Benson o. Chapman, 3 H. of L. Cas., 
 
 STAMPS (REVENUE). 
 
 I. When the rNSTKustEUT is void fok 
 wAira OF. 
 
 II. IHSTKUMBaiT IS NOT VOBD 
 
 FOB WANT OF. 
 
 I. When the DfSTBUMENT IS Void 
 
 FOE WANT OF. 
 
 1. A policy on ship and outfit cannot be al- 
 tered after the ship sails and the risk attaches 
 to " ship and goods," unless a new stamp is 
 affixed. EiUv. Patten, 8 East, 373; 1 Camp., 
 72; French v. Patten, 9 East, 351. 
 
 2. The statute, 35 Geo. Ill, ch. 63, sec. 1, 
 imposes upon every policy of insurance a 
 stamp of 2s. 6d. for every £100 progressively, 
 and the like duty for every fractional part of 
 £100; and sec. 14 avoids every contract un- 
 less properly stamped ; and the 48 Geo. Ill, 
 ch. 14, sec. 9. schedule article policy of insur- 
 ance, provides, if separate interests of two 
 or more distinct persons be insured by one 
 policy, the duty shall be charged thereon 
 in respect of each and every firactional part of 
 
 £100 as well as in respect of every full sum of 
 £100. Ba^ V. Allnutt, 15 East, 601. 
 
 II. When the instetiment is not 
 
 VOID FOE WANT OF. 
 
 1. A policy was made, limiting tlie time of 
 sailing to a certain day; but a memorandum 
 was indorsed, extending the time. Hdd, it 
 did not require a new stamp. Kensington v. 
 Inglis, 8 East, 273. 
 
 2. An instrument is not invalid for want of 
 the proper stamp, unless it was omitted with 
 intent to defraud the government (citing 
 Campbell «. Wilcox, 10 Wall., 431). Mitchell 
 e. Home Ins. Co., 33 Iowa, 421. 
 
 3. Warranted to sail August 30. By in- 
 dorsement on the policy and for additional 
 premium, the agreement was modified by 
 withdrawing the warranty. Held, no new 
 stamp was needed. Hvbbard v. Jackson, 
 4 Taunt., 169. 
 
 4. It was held in this case that the contract 
 may be modified by agreement of parties with- 
 out restamping. Bidsdale v. Shedden, 4 
 Camp., 107. 
 
 5. The policy was made to Swinemunde. 
 It was altered by consent, by inserting 
 Eonisberg or Hemel after Swinemunde. 
 Held, a new stamp was nut required. Bam- 
 ttrom e. Beil, 5 Mau. & Sel., 267. 
 
 6. A power of attorney executed by the 
 members of an insurance club to the mem- 
 bers of a committee authorized them to sub- 
 scribe policies on ships admitted to the club. 
 There was but one stamp on it Held, sepa- 
 rate stamps were not necessary, one was suf- 
 ficient. Allen 0. Morrison, 3 M. & R., 70. 
 
 7. A policy of insnrance on the lives of 
 cattle is an insurance on lives, within 55 Geo. 
 Ill, ch. 184; but such an instrument is liable 
 only to a penalty of £5 for want of a stamp 
 under 10 Anne, ch. 36. The penalty of £500 
 under 35 Geo. Ill, ch. 63, sec. 17, applied to 
 marine insurance only. Attorney Oeneral v. 
 Cleobury, 4 Exchr., 65 ; 18 L. J. Ex., 395. 
 
 8. An assignment of a policy of insurance 
 as security for a debt, with a proviso for re- 
 demption on payment, is a mortgage, within 
 the 55 Geo. Ill, ch. 184, schedule, part 1, and 
 therefore, it requires an advalorem stamp. 
 Caldwell v. Dawson, 5 Exchr., 1 ; 14 Jur., 316. 
 
 43 
 
 657 
 
1315 
 
 STATUTES. 
 
 1316 
 
 Of the appointment of agents. 
 
 STATUTES. 
 
 I. Op the appointment of agents. 
 
 (a) When Tumeompliance vitiates the 
 
 contract. 
 
 (b) does not vitiate the contract. 
 II. Repealing. 
 
 III. Conflicting statutes. 
 
 IV. Constkuction OF. 
 
 V. Statutes of limitations. 
 VI. Statute of frauds. 
 VII. Von) statutes. 
 
 I. Of the appointment of agents. 
 
 (a) When noncompliance vitiates the 
 contract. 
 
 1. The statute of Indiana declares that 
 agents of foreign corporations, before entering 
 upon the duties of their agency shall deposit 
 in the clerk's oflSce of the county where they 
 propose doing business, the commission, or 
 other authority by virtue of which they act as 
 agents, and in the office of the clerk of the 
 circuit court, a duly authenticated order or 
 resolution of the board of directors, authoriz- 
 ing citizens having demands against the com- 
 pany arising out of any transaction in that 
 state, to sue for and maintain an action for the 
 same, in ftny court of competent jurisdiction 
 in that state, and authorizing service of pro- 
 cess to be made upon such agent; and that for- 
 eign corporations shall not be permitted to 
 enforce, in any courts of that state, any con- 
 tracts made by their agents prior to compli- 
 ance with the provisions of that statute. The 
 assignee of the bankrupt brought suit on a 
 premium note, and the maker pleaded non- 
 compliance with the terms of the statute, 
 to which there was a general demurrer. Held, 
 the plea was good. U. S. D. C, District of Ind. 
 Gkbsham, J. Lamh v. Larnb, 7 Chi. Leg. News, 
 411. 
 
 2. The omission of an agent of a foreign 
 mutual insurance company to comply with 
 the provisions of the statute respecting the ap- 
 pointment of agents, will bar an action 
 brought by the company on the premium note. 
 Washington County Mvttial Fire Ins. Go. «. 
 Dawes, 6 Gray, 376 ; Williams v. Cheney, 8 Gray, 
 206. 
 
 3. The indorsee received the premium note 
 658 
 
 as collateral security for a debt paid by the 
 indorser since the commencement of the ac- 
 tion. It was given as the consideration of the 
 two policies of insurance, but the company 
 had not complied with the requisitions of the 
 statutes concerning foreign insurance compa- 
 nies doing business in Massachusetts. Held, 
 the action was for the benefit of the company, 
 to recover a premium, and it could not be 
 maintained. Bodfiev. Ladd,l A\len,iZ6. 
 
 4. The defendant made a premium note in 
 favor of a Massachusetts Ins. Co., as a consid- 
 eration for the company's policy upon prop- 
 erty in tlie state of N. H. The Ins. Co. never 
 complied with the laws of the state in respect 
 to doing business. Held, the contract of in- 
 surance was invalid, hence the note was with- 
 out consideration, and the action could not he 
 maintained. HaverhiU Ins. Go. v. Prescott, 48 
 N. H., 547. 
 
 5. The statute of Pennsylvania, April 11, 
 1868, regulating the appointment of agents by 
 foreign companies, had not been complied 
 with. Held, an action founded on a transac- 
 tion prohibited by the statute could not be 
 maintained. 8. C. Penn. Thome Vi Travelers 
 Ins. Go., 5 Ins. L. J., 169. 
 
 6. Stipulated that other insurance should 
 not be made without consent. Insured aver- 
 red that the company who made the other in- 
 surance was a foreign corporation, organized 
 by the laws of the state of Pennsylvania; that 
 one Ferry held himself out as the agent of the 
 corporation, but he had wholly failed to com- 
 ply with the requirements of the statute regu- 
 lating foreign corporations and their agents in 
 this state, and said policy was for that reason 
 wholly null and void. Held, the second pol- 
 icy was void because the foreign corporation 
 had not power to make the contract until the 
 requirements of the statute were satisfied, and 
 therefore it was not other insurance within 
 the meaning of the policy. Sising 8un Ins. 
 Go. V. Slaughter, 30 Ind., 520. 
 
 7. The company had not complied with the 
 statute regulating the appointment of agents, 
 but had made a policy, and this action was 
 brought to recover back the premium. Held, 
 the policy was invalid, and that the party 
 paying the premium was not so far particeps 
 eriminis, as to preclude him from recovering 
 it back. Union Central Life Ins. Go. v. 
 Thomas, 46 Ind., 44. 
 
 8. A premium note was given as the con- 
 
1317 
 
 STATUTES. 
 
 1318 
 
 Of the appointment of agents. 
 
 sideration for a policy of insnrance. The com- 
 pany had not complied with the law reglating 
 the appointment of agents and no certificate 
 had been issued to the agent by the state au- 
 ditor. Held, the note was void, for the statute 
 declares the " contract " unlawful. The court 
 declines to say whether the policy was in- 
 valid, because that question was not in the 
 case. Hoffman v. Bankt, 41 Ind., 1 ; Farmers 
 and Merdumts Ins. Go. e. Sarrah, 47 id., 236. 
 
 9. The statute of Indiana required all 
 foreign insurance companies to comply with 
 its provisions prior to the making of any con- 
 tracts in that state. A. person acting in he- 
 half of certain insurance companies, corpora- 
 tions of the state of Ohio, procured them to 
 issue policies upon certain steamboats in the 
 state Indiana, the consideration for which 
 was certain promissory notes, executed in the 
 state of Indiana. Held, as neither party was 
 bound until the delivery of the premium 
 notes, and as this was done at New Albany, 
 Indiana, the contracts were not contracts of 
 Ohio, but of the state of Indiana. They were 
 illegal by the law of the place where they 
 were made. This court would not enforce them. 
 Ford v. Buckeye State Ins. Go., 6 Bush., 133. 
 
 10. A contract of insnrance made in Ken- 
 tucky by a foreign insurance company, which 
 has failed to comply with the conditions re- 
 quired by the statute, as precedent to the 
 transaction of business, is void, and no recov- 
 ery can be had upon it Franklin Ins. Co. v. 
 Louisville and Arkansas Packet Co., 9 Bush., 
 590. 
 
 1 1. Action upon a note given for premium, 
 which was taken, and the policy issued by an 
 agent of tlie payee, who had never filed a 
 statement of the company's aflfairs in the of- 
 fice of tlie secretary of state as by law re- 
 qnired. Held, no action could be maintained 
 upon the note, ^tna Ins. Co. e. Harvey, 11 
 Wis^ 394; CtneiniuUi Mut. Ais. Co. v. Bosen- 
 thai, 55 111., 85. 
 
 (b) When noncompliance does not 
 vitiate the contract. 
 
 12. The carrier defended on the ground 
 that insurer had not authority to contract, 
 not having complied with the state statute in 
 respect to the appointment of agents. Held, 
 no defense to the action. The Manistee, 5 
 Biss.,881. 
 
 l.S. M. was authorized by the company to 
 make surveys and receive application for in- 
 surance, but the company was a mutual in- 
 surance company, created by the laws of the 
 state of New York. M. transmitted an appli- 
 cation to the company, who sent the policy 
 by mail to the insured in the state of Pennsyl- 
 vania, where the property insured was 
 situated. Hdd, the statutes of Pennsylvania 
 prohibiting insurance companies of other 
 states from contracting to insure property in 
 that state, except upon compliance with cer- 
 tain conditions, had no application, for the 
 contract was made in the state of New York. 
 HuvMey v. Merrill, 32 Barb., 6ij6 ; Hoyt v. Good- 
 lum, 3 N. Y., 266. 
 
 14. The omission of a foreign insurance 
 company to appoint a general agent, or the fact 
 that its capital is less than the sum required by 
 the statute, is no defense \o an action brought 
 upon a premium note. Provincial Ins. Co. v. 
 LapsUy, 15 Gray, 263; Atlantic Mutual Fire 
 Ins. Co. V. Conelin, 6 id., 73. 
 
 15. The failure of an insurance company to 
 comply with the requisitions of the statute in 
 respect to the appointment of agents does not 
 render their contract invalid. Hartford Live 
 Stock Ins. Co V. Matthews, 102 Mass., 221. 
 
 16. Plaintiffs, citizens of Ohio, sent an 
 agent into Pennsylvania to solicit insurance, 
 and to receive applications. They issued a 
 policy on the defendant's factory, and received 
 defendant's promissory note for the premium, 
 payable in such portions, and at such times as 
 the directors of said company may, agreeably 
 to their act of incorporation, require. The 
 statute of Pennsylvania required a compliance 
 with its provisions on the part of all foreign 
 insurance companies. Held, the act did not 
 apply to mere transient or traveling agents 
 who invited applications to be sent to the 
 company in Ohio. Thomtcn v. Western Re- 
 serve Fire Ins. Co., 31 Penn. St, 539. 
 
 17. Insurer, a foreign corporation, at the 
 time of issuing the policy, had failed to com- 
 ply witli the requirements of the statute of 
 April 16, 1867, for the incorporation and regu- 
 lation of life insurance companies, by which 
 it was made unlawful for any agent or corpora- 
 tion.to take risks, collect premiums, or in any 
 manner transact the business or life insurance, 
 until the provisions of the statute should be 
 complied with ; and any party violating the 
 act, was by it subjected to a penalty of 
 
 659 
 
1319 
 
 STATUTES. 
 
 1320 
 
 Repealing — Conflicting — Construction of — Statutes of limitation. 
 
 tor each Tiolation. Held, the failure to com- 
 ply with the statute was no defense to the ac- 
 tion upon the policy. Union Mutual Life Ins. 
 Co.v. McMillen, 24 Ohio St., 67. 
 
 18. A foreign corporation may maintain or 
 defend a suit, notwithstanding it has failed to 
 procure a license according to law. Columbus 
 Ins. Co. ■». Walsh, 18 Mo, 229. 
 
 19. The failure of a foreign insurance com- 
 pany to comply with the statute in relation to 
 establishing agencies in the state does not 
 avoid promises made by persons insured to 
 pay premiums for insurance. Ola/rkv. Middle- 
 ton, 19 Mo., 53. 
 
 20. The insurers cannot defend on the 
 gi'ound that they had not authority under the 
 laws of Michigan to transact business in the 
 state. The statute regulating the transaction 
 of business by foreign comijanies in Michigan 
 does not affect policies executed out of the 
 state, upon property in Michigan. Clay Fire 
 and Marine Ins. Co. n. Sv/ron Salt and Lurnber 
 Co., 31 Mich., 346. 
 
 II. Kepeaxihg. 
 
 1 . The act of incorporation provided : " In 
 case of loss by Are the insured shall give no- 
 tice thereof in writing to the directors within 
 thirty days, who shall ascertain and determine 
 the amount of it, and if the insured is not sat- 
 isfied with such determination, he may bring 
 an action against said company for said loss 
 at the next court to be holden in and for the 
 county where said company is established, and 
 not afterwards." Seld, neither an express nor 
 an implied repeal of sec. 6, ch. 31 of revised 
 statutes, which authorized the plalntitf to sue 
 in the county where he resided. Martin n. 
 Penobscot Mutual Fire Ins. Co., 53 Me., 419. 
 
 2. If a statute confers a right, and it is re- 
 pealed before the right becomes vested, the 
 right falls with the repealed statute, and no 
 enforcement of the right can be made. Van 
 Imeagen v. City of Chicago, 61 111., 31. 
 
 3. The statute, approved March 14, 1870, al- 
 lowed certain damages beyond the amount 
 named in the contract. The trial was had, 
 and verdict rendered, with interest for the sum 
 actually due on the policy March 10th, but no 
 assessment of Uie statutory damages was made 
 till the 23d. The statute which conferred the 
 right .to them was repealed on the 22d. Held, 
 the plaintiff could take nothing but the dam- 
 
 600 
 
 ages due under the contract. Pryee v. Beeurity 
 Ins. Co., 29 Wis., 270. 
 
 III. CoNFLIOnifG STATUTES. 
 
 1. The company was chartered in 1852. 
 ndd, BO far as the revised statutes of 1841 were 
 inconsistent with the charter they were of no 
 effect. York County Mutual Fire Ins. Co. v. 
 Knight,^ Me., 75. 
 
 2. If the constitution of the United States 
 confers the right upon congress to legislate ou 
 a particular subject, the state law on that sub- 
 ject becomes inoperative whenever congress 
 exercises the right. Caldwell v. 8t. Louis Per- 
 petual Ins. Co., 1 La. An., 85. 
 
 IV. CONSTEUCTIOIT OF. 
 
 1 . In construing a statute, regard must he 
 had to the intention of the makers of it, and 
 this is to be collected from the occasion or the 
 necessity for it. Button v. Vermont Mutual 
 Fire Ins. Co., 17 Vt., 369. 
 
 2. The statute law of 1834 provides that any 
 accident except such as are impossible to be 
 foreseen and avoided, that may happen from 
 racing, carrying higher steam than may ap. 
 pear from the certificate to be consistent with 
 safety, running into or afoul of another boat, 
 etc., shall subject the owner to a forfeiture of 
 his insurance. Held, the impossibilities 
 spoken of in the statute must be considered 
 an impossibility by reasonable intendment, ac- 
 cording to all the circumstances of each par- 
 ticular case. Caldwell v. St. Louis Perpetual 
 Ins. Co., 1 La. An., 85. 
 
 3. The act of 6 Geo. I., ch. 18, giving the right 
 to the London Assurance Co. and the Royal 
 Exchange Insurance Co., did not extend to 
 Scotland. It was intended to apply to in- 
 surances made in England only. Pattison «. 
 MiUs, 2 Bli. (N. R.), 519; 1 Dow. & C, 342. 
 
 4. 49 Geo. III. sanctions every importa- 
 tion of goods under any order of council 
 which would have been authorized by 48 
 Geo. III. Schroeder v. Vaux, 15 East, 52 ; 3 
 Camp., 84, n 
 
 Y. Statutes of limitations. 
 
 1. If the defendant intends to rely on the 
 statute of limitations, he must plead it. He 
 cannot demur on the ground that it appears 
 on the face of the complaint that the cause of 
 
1321 
 
 STATUTES. 
 
 1322 
 
 Statute of frauds — Void. 
 
 action is barred by lapse of time. Sands o. 
 St. John, 36 Barb., 628. 
 
 8. The stHtute of limitations does not begin 
 to run on a deposit note until an assessment 
 is laid ; for the agreement is to pay the amount 
 when required. Bigelow e. Libby, 117 Mass., 
 359. 
 
 3, The person insured died iu September, 
 1863. Proofs of loss were furnished October, 
 1872, and this action was commenced Febru- 
 ary 17, 1873. Defendant was a corporation of 
 the state of New Jersey. The policy required 
 insured to give notice to insurer of the death 
 of the person insured. Held, the Kentucky 
 statute of limitation commenced to run March 
 2, 1866, hence the action was barred by lapse 
 of time March 2, 1871. Insurer was a foreign 
 debtor and was therefore excluded from the 
 operation of the Virginia statute of March 2, 
 1866, depriving creditors of the right to en- 
 force the payment of debts nntil January 1, 
 1868. Kentucky Ct. App. Spratley v. Mutual 
 Benefit Life Ins. Co., 7 Chi. Leg. News, 51. 
 
 4. The defense was, that the action was not 
 brought within six years after the loss oc- 
 curred. Held, the action did not accrue until 
 the loss was complete; that a barratrous 
 abandonment of the voyage did not complete 
 it; that it was not complete till the master di- 
 vested himself of possession of the ship. 
 Hibhert v. Martin, 1 Camp., 538. 
 
 5. The defendant pleaded the statute of 
 limitations and the plaintifi' replied that he- 
 fore the six yeai-s had elapsed, one J. B. 
 claimed an equitable lien on the policy, and 
 filed a cause petition in the court of chancery 
 to enforce payment of it; that at the hearing 
 before the master, defendants insisted that the 
 policy had lapsed for nonpayment of pre- 
 mium, and was not then a subsisting contract ; 
 that the master directed this action to be 
 brought to try that qtiestion, and retained the 
 petition. HeM,, a good answer to the plea. 
 Supple o. Conn, 9 Ir. C. L. K., 1. 
 
 VI. Statute of frauds. 
 
 1. The Massachusetts statute of frauds does 
 not affect a contract of insurance; the rights 
 of the parties must be determined by the com- 
 mon law, and a promise, for a valuable con- 
 sideration, to make a policy need not be in 
 
 writing. Commercial Mutual Marine Tns. Co. 
 V. Union Mutual Ins. Co., 19 How., 318; 2 Cur- 
 tis, 524. 
 
 2. The plaintiff offered to prove that while 
 the policy was in force during the first year, 
 plaintiff and defendant agreed verbally that 
 until notice to the contrary be given by one 
 party to the other, defendant should renew 
 tlie contract from year to year without furUier 
 notice, and deliver a certificate of renewal, 
 and that the plaintiff should pay the premium' 
 therefor on demand ; that it was the usage of 
 defendant to make such verbal agreements 
 and to pay losses in pursuance thereof; that 
 the defendant renewed the policy in pursuance 
 of that verbal agreement for the years 1846 
 and 1847, and that plaintiff paid the premium 
 within a few days after the renewals were de- 
 livered. .Held, a valid agreement; if the con- 
 tract is not, by its very terms or necessary 
 construction, to endure for a longer period 
 than one year, it is not within the statute of 
 frauds, though it may be continued for au 
 indefinite period. Mrst Baptist Church v. 
 BrooUyn Fire Ins. Co., 19 N. T., 305 ; s. c, 18 
 Barb., 69. 
 
 3. Part performance of contracts in respect 
 of lands supplies the lack of written agree- 
 ment (citing Young ». Peachey, 2 Atk., 257 ; 
 Caldwell «. Carrington, 9 Pet., 86; Ryan s. 
 Dox, 34 N. T., 307), Bedfield c. Holland Pur- 
 chase Ins. Co., 56 N. Y., 354. 
 
 4. An agreement to answer for the default 
 or miscarriage of another, and to answer for 
 loss by fire. Held, it was divisible, and so far 
 as it was an agreement to insure against loss 
 by fire, it was valid ; so far as it was an agree- 
 ment to answer for the default or miscarriage 
 of another, it w-as invalid, because it was not 
 in writing. Mobile Marine and Dock Ins. Go. 
 V. McMillan, 31 Ala., 711. 
 
 VII. Void. 
 
 Sec. 36 of an act, entitled " An act for the in- 
 corporation of insurance companies," defining 
 their powers and prescribing their duties (1 G. 
 & S.j 398) is unconstitutional, because the 
 subject of tlie section is not embraced in tlie 
 title of tlie act, and is not matter properly con- 
 nected with the subject expressed in the title. 
 Cfrubbs V. The State of Indiana, 24 Ind., 295. 
 
 m 
 
1323 
 
 STORING — STKANDING. 
 
 1324 
 
 Wliati3. 
 
 STOKING. 
 
 (See Keepihq and Stobins.) 
 
 STEANDING. 
 
 I. What is. 
 
 II. NOT. 
 
 I. What is. 
 
 1. On salt. " Warranted corn, fish, salt, etc., 
 free from average, unless general or the ship 
 be stranded. She got abreast of the roads at 
 Loch Strangford, but the tide ran so high 
 that she could not get into them. The 
 pilot made too free with the shore, and she 
 got aground on the lee shore. She was got off 
 and remained five days at Strangford without 
 showing signs of damage; but on going to 
 sea it blew heavy and she made much water. 
 She was obliged to run for Lochindale in dis- 
 tress, and on making port she took the ground 
 forward and swung round on her keel, while 
 she remained there she pounded heavily and 
 made much water, in consequence of which 
 the salt was greatly damaged. Held, a loss by 
 stranding, and, therefore, insurers were not 
 within the exemption. Mitchell v. Gray, 1 3. 
 ifc D., 298. 
 
 2. The wind suddenly took her ahead, and 
 she went ashore stern foremost, where she 
 remained fast for two hours, till the tide flow- 
 ed. Held, it was a stranding. Hwrman ». 
 Vmx, 3 Camp., 429. 
 
 3. Ship struck upon a rock, remained on it 
 fifteen or twenty minutes, and, in consequence, 
 sustained injury and leaked very badly. Held, 
 if she was fixed for the time named it was 
 stranding within the policy. Baker v. Towry, 
 1 Starkie, 436. 
 
 4. "On ship from Wisbeach to Leeds or 
 Wakefield, warranted free from average, unless 
 general, or the ship is stranded." She had 
 proceeded beyond Selby towards Wakefield, 
 and arrived at Beal Lock, when it became 
 necessary to draw off the water to repair the 
 navigation. She was placed in the most 
 secure place that could be found, along side 
 
 663 
 
 four other vessels. The water being drawn 
 off, she grounded on piles not known to be 
 there, and the cai'go was badly damaged. Held, 
 she was stranded; that the exception would 
 apply when the ship must go on the strand 
 in the ordinary course of the voyage, for then 
 that is not stranding ; but where it arises from 
 an accident, out of the ordinary course, that is 
 a stranding within the meaning of the policy. 
 Bayner v. Qoodmond, 5 B. & A., 225. 
 
 5. "Warranted free from average unless the 
 ship be stranded." She was forced to take 
 shelter in a harbor, and in entering it, ran 
 upon an anchor. When brought to her moor- 
 ings, slie was found leaky and in danger of 
 sinking, and to prevent that she was warped 
 higher up, where she took the ground, and re. 
 mained fast for half an hour. Held, a loss by 
 stranding. Barroie v. Bell, 4 B. & C, 736; 7 
 D. & R., 244. 
 
 6. "Warranted free from average, unless 
 general, or the ship be stranded." She was 
 obliged to put into a tide harbor, where she 
 was moored alongside a quay, in the usual 
 place for ships of her burden. It was neces- 
 sary to make her fast to tackle posts on the 
 shore to prevent her falling over. When the 
 tide was out, one of the ropes, being insuffi- 
 cient, broke; she fell over and was greatly 
 injured. Held, a loss by stranding, Bishop 
 V. Pentland, 7 B. & C, 219 ; 1 M. & K., 49. 
 
 7. She arrived in a tide harbor, and at high 
 water, moored alongside the quay to avoid 
 grounding on a bank at low water. She was 
 hauled off at tide falling by a rope from her 
 head hove tight, and her stern fastened by a 
 rope to the quay. When the tide fell she 
 changed her position, got nearer the quay with 
 her fore foot on the bank caused by the force 
 of the wind stretching the rope. She then 
 grounded in a place .where she was not meant 
 to be. Held, a stranding within the meaning 
 of the policy. WeUs v. Hopieood, 3 B. & Ad., 30. 
 
 8. She was under the conduct of a pilot 
 proceeding up the river to Liverpool, who 
 made her fast to the pier of the dock basin ; 
 she took the ground when the tide left, fell 
 over and bilged, and when the tide flowed, 
 filled with water, and the goods were damaged. 
 Held, she was stranded. Oarrutheri v. 8yde- 
 botham, 4 Mau. & Sel., 77. 
 
 9. "Warranted free from average unless 
 general or the ship be stranded." She was 
 driven by stress of weather into the bay of 
 
1325 
 
 STBANDING. 
 
 1326 
 
 What is not. 
 
 Palais, commenced dragging her anchors, and, 
 for the preservation of all on hoard, her chains 
 -were slipped and she entered Sanzon, a tidal 
 harbor, and took the ground, it then being low 
 WHter. Held, she was stranded, for she took 
 the ground not iu the ordinary course of man- 
 agement, but from an unusual state of things. 
 Corcoran o. Oumey, 1 El. & Bl., 456. 
 
 10. "W."UTanted free from average unless 
 general, or tlie ship be stranded." She struck 
 upon a sunken rock, several of her planks 
 were started, the water flowed into her hold 
 and over her cargo. The pilot came on board 
 and stranded her upon the beach to save ship 
 and cargo. Held, the insurers were liable for 
 an average loss. Burnett «. Kensington, 7 
 Term, 210 ; 1 Esp., 416 ; Bowring e. Elrruley, 
 id., 210 n. 
 
 11. She put into the bay of Palais, let go 
 her bower anchors and chains, commenced to 
 drag the large anchor; for the preservation of 
 all on board, particularly to prevent her going 
 ashore, her cables were slipped, she was got 
 under sail, and entered the tidal harbor of San- 
 zon at low water. She took the ground, and 
 during a month floated about eight days, and 
 then only at the height of spring tide. She put 
 to sea, made much water, and in consequence 
 of her previous strain, the cargo was damaged. 
 Held, a stranding within the meaning of the 
 memorandum. Corcoran v. Oumey, 22 L. J. 
 Q. B., 113; 1 El. & Bl , 456; 17 Jur., 1152. 
 
 12. " On salt, warranted free from average, 
 unless general, or the ship be stranded." She 
 lost both anchors, had her masts cut away, was 
 taken in tow by salvors, and placed on a bank 
 out of the ordinary course of the voyage, 
 where she lay on her port side for several tides, 
 and suffered further damage. The salt was 
 landed in a damaged condition, and the ship 
 repaired at an expense exceeding her value. 
 About one-fifth of the salt might have been 
 made saleable at the port of destination, but 
 would not have sold for more than the import 
 duty. The salvors instituted suits in admi- 
 ralty, and it was sold by order of court, not 
 realizing enough to pay salvage and costs. 
 Held, not a total loss, for the proceedings in 
 admiralty were not a necessary consequence 
 of a peril insured against, but the insurers 
 were liable for a partial loss, for the ship was 
 stranded. BeMattos «. Saunderi 7 L. K. C. P., 
 570; s. a, 20-W. B., 801; 27 L. T. (N. 8.), 
 120. 
 
 II. What is not. 
 
 1. Stipulated: " Insurers are not to be liable 
 for partial loss on grain, unless caused by 
 stranding or bilging. She was thrown on her 
 beam ends, and in excessive straining, her 
 seams opened. Held, this was not bilging 
 within the meaning of the policy. Bllery v. 
 Merchants Ins. Co., 3 Pick., 46. 
 
 8. Stipulated : " Not liable for any partial 
 loss on salt, grain, fruit, fish, hides, skins, or 
 other goods perishable in their own ;iature, 
 unless it amount to seven per cent, on the 
 whole aggregate value of such articles, and 
 happen by stranding." She struck a rock or 
 stump, which made a hole in her bottom four 
 feet long and two feet wide. The water pour- 
 ing in very rapidly, she was run upon the tow 
 path for the purpose of preventing sinking. 
 On opening the hatches she was found nearly 
 full of water. The net proceeds of the wheat 
 amounted to $1,291. Its prime value was 
 $4,200. Held, Lot a loss within the policy, for 
 there was no stranding. Lake «. Columhu» 
 Ins. Co., 13 Ohio, 48. 
 
 3. The vessel struck and remained for a 
 minute and a half on the rock. Held, not a 
 stranding, though her loss was the conse- 
 quence of the injuiy there received. Mae- 
 dougle v. Boyal Exchange Ass. Co., 1 Stark., 130 ; 
 B. c, 4 Camp., 283; 4 Mau. & Sel., 503. 
 
 4. A vessel, under control of a pilot, ground- 
 ed, while going into harbor in the ordi- 
 nary course of navigation, and was after- 
 wards moored at the quay; but took the 
 ground at ebb tide, fell over on her side, and 
 ship and cargo were damaged. Held, no 
 stranding. Hearne «. Edmunds, 1 B. & B., 
 388 ; 4 Moore, 15. 
 
 5. When the tide ebbed she took the ground 
 in a tide harbor, where it was intended she 
 should take it; but in doing that, she settled 
 upon some hard substance which made two 
 holes in her bottom, and damaged the cargo. 
 Held, not a stranding; and, as the policy war- 
 ranted the cargo free from average unless 
 general, or the ship be stranded, the insurers 
 were not liable. Kingsford v. MarshM, 8 
 Bing., 458; 1 M. & Scott, 657. 
 
 6. " Free from average, unless general, or 
 the ship be stranded, including risk of craft 
 to and from ship." A lighter, conveying 
 goods from ship to shore, was stranded and a 
 loss sustained. Held, the contract limited a 
 
1327 
 
 SUBBOGATION. 
 
 182S 
 
 When allowed. 
 
 parlicular average to a loss caused by the 
 stranding of the ship only. Hoffman v. Mar- 
 shall, 3 Bing. (N. C), 383; 5 L. J. (N. 8.) C. P., 
 70; 3 Scott, 559. 
 
 7. If the ship, upon the falling of the tide, 
 takes the ground in a tide harbor at a place 
 •where she is properly put for the purpose of 
 unloading, it is not a stranding. Magnus v. 
 Buttemer, 11 C. B., 876; 31 L. J. 0. P., 119; 16 
 Jur., 480. 
 
 8. If stranding is made the condition of 
 letting-in an average loss, it must take place 
 after the adventure has commenced and before 
 it has terminated ; so if the ship was stranded 
 in a part of the voyage described, but after the 
 goods at risk, and to which the restriction was 
 applicable, had been landed, it does not affect 
 the rights of the parties. Roux v. Salvador, 1 
 Bing. (N. C), 536; 1 Scott, 491; 1 Hodges, 49; 
 4 L. J. (N. S.) C. P., 156; s. c, 3 Bing. (N. C), 
 366 ; 4 Scott, 1 ; 2 Hodges, 309 ; 7 L. J. (N. S.) 
 Ex., 338. 
 
 9. " Warranted free from average, unless 
 general, or the ship be stranded." She sprang 
 a leak while laboring in a gale. A qhantity of 
 the cargo (wheat) was pumped out with the 
 water. She reached port in the night, got foul 
 of another vessel, got clear of her, and ground- 
 ed, but got off very quickly. Held, not a strand- 
 ing. Oraig v. Spence, Faculty Dec, 1793 to 
 1796, p. 307. 
 
 10. Warranted free from average, unless 
 general or the ship be stranded. She took the 
 ground while descending a tidal river, and the 
 cargo was thereby damaged. Seld, not a 
 stranding. Thomson v. Murison, 6 C. C. S., 
 1130; 16 Scot. Jur., 491. 
 
 SUBROGATION. 
 
 I. When allowed. 
 
 n. DENIED. 
 
 I. When allowed. 
 
 1. The insurance company paid the claim, 
 though not legally bound so to do. Held, they 
 could recover of the wrong doer (citing Mon- 
 ticello o. MoUison, 17 How. 153). Insuranee 
 Co. 1. The 0. V. Jr., 1 Woods, 73. 
 
 8. Total loss by thieves, for which jndg- 
 864 
 
 ment was rendered. The insured surrendered 
 the bill of lading to the carrier, assigned the 
 policy and all claims thereon to B., for the 
 benefit of the carrier. Held, insurers were 
 entitled to credit against the judgment for, 
 the amount for which the carrier was liable 
 Atlantic Ins. Co. v. Storrow, 1 Edw. Ch., 631 ; 
 8. c. affirmed, 5 Paige Ch., 285. 
 
 3. The insured having right to abandon for 
 a total loss, claimed for it, and offered to 
 abandon, which was contested. Insured and 
 insurers agreed to refer the matter to certain 
 persons. The referees awarded a certain sum 
 to be paid by insurers, and the policies to be 
 canceled. That sum was paid, and by com- 
 putation the award appeared to have been as 
 for a total loss. Held, insurers were entitled 
 to indemnity under the French treaty, and 
 that neither assignment nor cession from the 
 insured was necessary. Itadcliff v. Coster, 
 Hoff. Ch., 98. 
 
 4. Insurers paid a loss caused by rioters. 
 Held, they could maintain an action in the 
 name of the insured against the wrong doer. 
 Mason o. Sainsbrary, 3 Doug., 61. And the in> 
 sured cannot release the wrong doer. Hart v. 
 Western Railroad Co., 13 Met., 99. 
 
 5. A. borrowed money of B., gave his note 
 for double the amount, with the premium for 
 a policy on his life, which was made in favor 
 of the lender. He also agreed to pay the 
 premiums as they should come due. A. died 
 and B. received the amount insured. Held, 
 he must account for all except the money 
 legally due on the note. Goon v. Swan, 30 Vt, 6. 
 
 6. When the action was commenced, the 
 account between insured (the mortgagee) and 
 mortgagor, showed a debt of $4,457.34, due to 
 mortgagee. Held, if mortgagee had a lien 
 upon other property for any portion of this 
 debt, the company, upon payment of the loss, 
 was entitled to be subrogated to mortgagee's 
 rights. Sussex County Mitt. Ins. Go. v. Wood- 
 ruff, 26 N. J., 541. 
 
 7. The complainant insured the house of H. 
 It was burned by the negligence of the Cam- 
 den and Amboy Railroad Company, within 
 the term insured, and the complainant paid 
 the loss. The property destroyed was wortli 
 a sum largely in excess of the sum insured. 
 The railroad company paid insured $3,000 in 
 satisfaction of the damages, for which' H. 
 receipted, and this action was brought against 
 insured and the railroad company jointly. 
 
1329 
 
 SUBROGATION. 
 
 1330 
 
 When allowed. 
 
 Held, the release made by H. was no defense 
 to the suit of insurei-s, or if the railroad com- 
 pany p.iid the damages, knowing that H. had 
 received the amount insured from the com- 
 plainants, it would still be liable to the com- 
 plainants in a suit at law in the name of H. ; 
 that the settlement by the railroad company 
 with H., after they knew that he had been paid 
 by the complainants, was fraudulent, and, 
 therefore, void. Monmouth County Fire Ins. 
 Co. v. SutehiTuon, 21 1^. J. £q., 107. 
 
 8. Policy to a mortgagee. After the fire, 
 some of the property saved was sold. Held, 
 insurers were entitled to credit for the amount 
 realized from the sale. Harris v. G/aspee Fire 
 and Marine Ins. Co., 9 K. I., 2(H. 
 
 9. The America came in collision with the 
 United States, both vessels being owned by 
 the same person. In an action to recover for 
 the loss of the United States. Held, if the in- 
 jury was caused by the willful wrong or 
 fraudulent act of the ofiScers and crew of the 
 America, it was available as matter of defense 
 to an action on>the policy, for insured was in 
 e&ct the wrong doer. Globe Ins. Co. v. Sher- 
 lock, 25 Ohio St, 50. 
 
 10. An insolvent debtor insured his life for 
 the benefit of his brother, to secure the pay- 
 ment of certain indebtedness to him and also 
 to indemnify him as surely on debts due other 
 creditors. The premiums were paid by the 
 insolvent debtor. Held, the brother's debt 
 and the debts for which he was sui-ety were to 
 be deducted from the proceeds of the policy 
 and the brother must account to the estate for 
 tlie balance. Stokes e. Coffey, 8 Bush, 533. 
 
 11. H. executed his note to B. E. & W., for 
 $2,146.50, and deposited with them 74 barrels 
 of whisky as collateral security. R. E. &W. 
 insured it at their own expense, in their own 
 name, and without the knowledge or authority 
 of H. The whisky being subsequently des- 
 troyed by fire, insurers paid claim to R. 
 E. & W., first requiring an assignment of the 
 note. Insurers brought this suit to recover 
 from the maker of the note. Hdd, when in- 
 surers paid the claim they were entitled to be 
 subrogated to the rights of insured ; the maker 
 of the note, having had no connection with the 
 insurance, could not claim its benefits; that 
 the payment of the mortgagee's policy did not 
 discharge the mortgagor's debt to the mort- 
 gagee. Honore e. Lamar Fire Ins. Co., 51 111., 
 409. 
 
 12. Produce was being transported down 
 the Mississippi, and was damaged while in 
 the custody of the carrier. Insured com- 
 menced an action against his insurer to re- 
 cover for the loss, but they agreed to a settle- 
 ment, insurers taking an assignment of the 
 claim of insured against the carrier. Held, 
 insurers had a right to maintain the action 
 in their own names, and to recover the 
 whole damage sustained by tlie propertj', not- 
 withstanding it exceeded the sum insured. 
 Hdd, also, insurer's attempt to defend the 
 claim of insured, on the ground that tlie vessel 
 was unseaworthy, and that the policy did not 
 attach, could not afl'ect their rights under the 
 assignment. Home Ins. Co. o. Northwestern 
 Padcet Co., 32 Iowa, 223. 
 
 13. Appellants insured certain church 
 property at Boncherville, Canada, which was 
 destroyed by a fire kindled by sparks from the 
 boiler chimneys of the steamer St. Louis. In- 
 surers paid less than the sum insured, and very 
 much less than the loss sustained by insured. 
 The insured executed an insti-ument subrogat- 
 ing insurei-s to their rights against the steam- 
 boat and the owners thereof; but it was ob- 
 jected that insurers had no right to be subro- 
 gated, that the pretended subrogation was in- 
 valid. Held, under the old law of France, in 
 force in Canada, an insurer may, on payment 
 of the loss, demand subrogation, which may 
 be made after the insurer has completely ex- 
 tinguished his debt to the insured; and it is 
 immaterial whether the term subrogation or 
 cession is used in the instrument; that the 
 payment of the loss to the insured does not 
 extinguish any right of action which exists 
 against the person who has caused the loss, or 
 who is liable to make it good. Quebec Fire 
 Ass. Go. c. St. Louis, 1 Moore P. C. C, 286. 
 
 14. Two stacks of oats and three stacks of 
 hay were burned by persons unknown. The 
 owner was insured. Insurers paid the loss 
 and brought this action in his name for their 
 benefit. Held, insurers must be considered as 
 having paid without prejudice, hence the 
 plaintiff was entitled to recover. Clark v. 
 Blything, 2 L. J. K. B., 7; 3 D. & R., 489; 2 
 B. & C, 254. 
 
 15. The king granted letters of reprisal 
 against the Spaniards, for the benefit of his 
 subjects, in consideration of losses they had 
 sustained by unjust captures. The commis- 
 sioners would not permit insurers to nlaiio 
 
 665 
 
1331 
 
 SUBROGATION. 
 
 1332 
 
 When allowed. 
 
 any part of the prizes, but allowed the right 
 to the owuers only. Held, after satisfaction 
 made to the owner by the insurer, the Insured 
 thenceforth stands as trustee for the insurer 
 in respect to the amount paid him by his in- 
 surer. Randall v. Gockran, 1 Ves., 98. 
 
 16. Isaac supplied goods on credit to W., 
 and effected a policy upon the life of W., in 
 Isaac's name. Isaac debited W. with the pre- 
 mium, and rendered an account for it. W. 
 died, and Isaac received the sum insured. 
 HM, as W. was bound to pay the premiums, 
 his estate was entitled to credit for the policy, 
 and that Insured had the right to retain his 
 debt, but no more. Morland v. Isaac, 20 Beav., 
 389; 1 Jur. (N. S.), 989; 24 L. J. Ch., 75a. 
 
 17. Bichardson, the trustee of Emma, 
 plaintiff's deceased wife, insured her life in the 
 Britannia Office. Before the first premium 
 was paid it was suggested that the insurer 
 would not recognize an insurance by a trustee, 
 who had no insurable interest in the life in- 
 sured, and a second proposal was signed by 
 Richardson. The policy recited that he had 
 agreed to effect an insurance for the amount 
 stated on the life of the wife of the plaintiff. 
 The policy was delivered to Emma; after her 
 death plaintiff filed this bill against Morrison, 
 the managing director of the company, and 
 Bichardson, praying the court to declare 
 that the insurance was effected by Emma 
 througli the defendant Richardson as her 
 trustee, for her separate use for life, and that 
 the policy ought to be considered as effected ac- 
 cordingly, and for the amount to be paid to the 
 plaintiff. The proof showed that the proposal 
 was signed, " Mrs. Emma Collett, by W. J. 
 Richardson, her trustee," and it was annexed to 
 the second proposal, which latter was never 
 submitted to the directors. Held, the com- 
 pany must be treated as having accepted the 
 first proposal wholly, and not in part only ; 
 that when the policy was issued the agree- 
 ment made with the directors, by the accept- 
 ance of the first proposal, remained in force. 
 Collett V. Morrison, 21 L. J. Ch., 878; 9 Hare, 
 163. 
 
 18. W., on the retirement of his partner, 
 agreed to pay him a certain sum of money, 
 and to grant him an annuity during his life, 
 to be secured by the bond of W. and of H. 
 W. borrowed £300, for which W. and H. gave 
 a joint promissory note, and a policy was 
 effected upon the life of W. for the benefit of 
 
 666 
 
 H. W. appointed H. liis. sole .executor, who 
 received the money due upon the policy. 
 Held, the policy was made for the purpose of 
 securing the note, and the money received by 
 H. should be made good to the estate. Lea v. 
 Hinton, 19 Beav., 324; s. c, 5 De G., M. & 6, 
 823. 
 
 19. A. deposited the policy with B., his 
 creditor, to secure a debt. Afterwards A. gave 
 surety for the payment of the debt, and B. ex 
 ecuted a deed of counter security to the surety 
 The surety did not know of the deposit of the 
 policy. Subsequently A. assigned the policy 
 to B. Held, the surety was entitled to the pol- 
 icy on payment of the debt of A. Lake v.Brut- 
 ton, 8 De G., M. & G.,440; 2 Jur. (N. S.), 839; 
 25 L. J. Oh., 842. 
 
 20. The debtor gave bond with surely for 
 the payment of a debt by installments, and for 
 effecting and sustaining a policy on the debt- 
 or's life, in the name of the creditor. The 
 debtor and his surety neglected to pay the pre- 
 miums, though required to do so by the cred- 
 itor, who paid them and kept the policy in 
 force. The debtor died. Held, the surety was 
 entitled to the money received from the in- 
 surers, on repayment to the creditor of his 
 debt, and advances with interest; for the mere 
 nonpayment by a mortgagor of a charge at- 
 tributable to the mortgaged property, cannot 
 have the effect of a foreclosure. DrysdaU v. 
 PiggoU, 8 De G., M. & G., 546, 2 Jur. (N. S.), 
 1078; 25 L. J. Ch., 878. 
 
 21. The policy was effected by the creditor 
 as a security for the debt, the debtor to pro- 
 vide money to pay the premiums. Held, 
 when the debt was satisfied, the debtor was en- 
 titled to the policy. Cowrtenay e. Wright, 2 
 Giff., 337; 6 Jur. (N. S.), 1283; 9 W. E., 153. 
 
 22. Policy on the life of the debtor of A. 
 It aijpeared that the premiums had been reg- 
 ularly charged in account to the debtor, and 
 that he had paid all to E!., except the last. 
 Held, the representatives of the debtor were 
 entitled to the avails of the policy, less the 
 last premium. Holland v. Smith, 6 Esp., 11. 
 
 23. A creditor effected insurance on the life 
 of his debtor, and paid the premiums; but 
 the debtor repaid the premiums to the credit 
 or, and this bill was brought against the exec- 
 utors of the creditor ; the complainants offered 
 to pay the debt and interest, and demanded a 
 transfer of the policy to them. Held, the evi- 
 dence was sufficient to show that the policy 
 
1333 
 
 SUBROGATION. 
 
 1334 
 
 When denied. 
 
 was the debtor's insurance and not the 
 creditor's, therefore, the prayer was grant- 
 ed. Simpton v. Walker, 2 L. J. (N. S.) 
 Ch.,55. 
 
 24. Policy deposited to secure a simple con- 
 tract debt, without any agreement as to inter- 
 est The creditor paid the premiums up to 
 the death of the debtor. Held, he was enti- 
 tled to the original debt, the premiums paid, 
 and interest added on both sums. In re 
 Kerr't Poliey, 38 L. J. Ch., 539; 17 W. R., 
 989; 8 L. R. Eq., 331. 
 
 85. The plaintiff paid the defendant a total 
 loss, but he subsequently recovered the goods. 
 The plaintiff now sought to recover of the de- 
 fendant the whole of the net prcibeeds. Held, 
 he could recover only in proportion as his 
 subscription bore to the net value of the pro- 
 ceeds. Da Costa v. Firth, 4 Burr., 1966. 
 
 26. Defendant's clerk insured his own life, 
 and assigned the policy to the defendant, in 
 consideration that the defendant should pay 
 the premium and give him an increase of 
 salary, amounting to five shillings weekly, 
 while he should remain in defendant's em- 
 ployment Defendant shortly after discharged 
 him for cause. Meld, the executor of the de- 
 ceased was entitled to the avails of the policy 
 less the premiums paid. Seott o. Boose, 3 Ir. 
 Eq., 170. 
 
 27. A. borrowed £29,980, and granted the 
 lender a heritable annuity over his entailed 
 estate, and assigned certain policies on his 
 life, reserving the power to redeem. A- died 
 without redeeming. Profits accrued on the 
 policies. The money that became due on 
 them exceeded the debt Held, the represen- 
 tatives of A. were entitled to the excess. Mar- 
 guis of Queenslmry o. Scottish Union Ins. Co., 1 
 C. C. S., 1213. 
 
 28. Two brothers made their joint bond to 
 an insurance company for £500. The elder 
 insured the life of the younger for £1,000. 
 The younger remitted the money to pay the 
 premiums. They were paid in the name of 
 the elder. Held, the representatives of the 
 younger were entitled to the sum insured less 
 the amount of the bond. Lindsay v. Barm- 
 eotu, 13 O. C. 8., 718; 23 Scot Jur., 315. 
 
 29. A. borrowed £5,000 and granted a re- 
 deemable annuity, making it large enough to 
 pay interest on the amount advanced and 
 premiums on two policies on his life as 
 security for the debt fieW, the borrower was 
 
 entitled to the bonuses which accrued on the 
 policy. Shand v. Blackie, 21 0. C. S., 878; 31 
 Scot Jur., 486. 
 
 30. Policy to mortgagee for his own bene- 
 fit; but his debt was only £184 53. lOd. He 
 insured £500. and had a verdict for that 
 sum. Held, he could not have judgment for 
 more than his debt Ogden v. Montreal Ins. 
 Co., 4 U. C. C. P., 497. 
 
 II. When denied. 
 
 1. CoIUsion. She was insured for the ben- 
 efit of her owners, and was damaged by col- 
 lision. Insurers paid the loss, and the owners 
 brought this action to recover from the wrong 
 doer. Held, the contract with the insurer was 
 in the nature of a wager between third parties, 
 with which the trespasser had no concern. 
 Insurer does not stand in the relation of a 
 joint trespasser, hence satisfaction accepted 
 from him is not a release of the wrong doer. 
 Propeller Monticello t. MoUision, 17 How., 152. 
 
 2. Mortgagee. There is no principle either 
 in law or equity which confers upon the mort- 
 gagee a right to claim the benefits of a policy 
 made for the mortgagor. It is strictly a per- 
 sonal contract, to which the mortgagee has no 
 more title than any other creditor. Columbian 
 Ins. Co. B. Lawrence, 10 Pet, 507 ; Vandegrc^ 
 V. Medlock, 3 Porter (Ala.), 389. 
 
 3. Collision. The owner, who was insured, 
 had abandoned to his insurer, and this action 
 was to recover for a loss caused by collision. 
 Heid, the relative equities of the parties were 
 not to be considered; the respondent, if in 
 fault, was bound to make satisfaction for the 
 injury; that when once made, he could not 
 be liable in another suit at the Instance of any 
 merely equitable claimant (citing Prop. Com- 
 merce, 1 Black, 574; The Monticello v. Mol- 
 lision, 17 How., 152). Newell v. Norton, 3 
 Wall., 257. 
 
 4. — One of the insurers of cargo prose- 
 cuted the wrong doer in admiralty, and ob- 
 tained a decree against the offending vessel. 
 Other insurers on the same subject refused to 
 incur any expense, or take any part in the 
 risk of prosecution, until alter the district 
 court had entered a decree of condemnation 
 in favor of the prosecution. Then the other 
 insurers intervened, and claimea a share of 
 the proceeds. Held, they could not be per- 
 mitted to do 80 (citing The Saracen, 6 Moore 
 
 667 
 
1335 
 
 SUBROGATION. 
 
 1336 
 
 When denied. 
 
 P. C. C, 56; The Clara, 1 Swabey, 1). Wood- 
 worth V. Insurance Oo., 5 Wall., 87. 
 
 5. Payee of bill. The owner of forty-two 
 bales of cotton consigned it to B. & S., and 
 drew on them for an amount less than its 
 valae. Complainant discounted the draft; B. 
 & S. accepted it, procured insurance on the 
 cotton to an amount exceeding the draft abont 
 $600, and, before the acceptance matured, be- 
 came insolvent. The complainant, who had 
 advanced the money on the di'aft, brought this 
 bill to restrain tlie acceptor from claiming 
 the insurance money, and to declare the same 
 for their benefit. Held, there was no privity 
 between the parties; that the consignees had 
 a right to insure the property for their own 
 benefit, with which the party who made the 
 advance could not interfere, or claim any of 
 its benefits. Bank of South Carolina e. Biek- 
 Hell, 1 Cliff., 85. 
 
 6. Payments by other insurers. Stipu- 
 lated : " In case of any other insurance on the 
 property insured, whether prior or subsequent 
 to this policy, insured shall not be entitled to 
 any greater portion of the loss than the amount 
 hereby insured shall bear to the whole amount 
 insured on the property. Ileld, the rights of 
 the parties were to be governed by the terms 
 of their contract; and in assessing the dam- 
 ages in this case the jury were not to take into 
 consideration payments made by other com- 
 panies, provided it appeared that the other 
 companies knew of the existence of all poli- 
 cies that were in force at the time of the loss. 
 Lucas V. Jefferson Ins. Oo., 6 Cow., 635. 
 
 ^ 7. Mortgagee. The insured assigned the 
 policy to his mortgagee as additional security, 
 who brought his action in the mortgagor's 
 name, and obtained Judgment. Subsequently 
 he proceeded to foreclose the mortgage. Ileld, 
 the mortgagee could enforce the judgment, and 
 insurers had no right to subrogation. Sobert 
 s. Traders Ins. Go. 17 Wend., 631 ; reversing. 
 Traders Ins. Co. v. Bohert, 9 id., 4Q4. 
 
 8. — The insured claimed of insurer $15,000 
 for loss by capture, but compromised it for 
 $5,000. No cession or assignment of insured's 
 right to claim indemnity from the wrong doer 
 ■was made. The commissioners, appointed by 
 the United States and the king of France, 
 agreed that the insurers had paid $5,000 upon 
 the loss, for which a certificate was awarded 
 them. Edd, the insured were entitled to re- 
 cover from the insurers the $5,000 by them 
 068 
 
 received under the French treaty ; that by their 
 refusal to accept an abandonment, and pay as 
 for a total loss, they voluntarily renounced all 
 participation in the spes reeuperandi (New 
 York Ins. Co. V. Roulet, H Wend., 505), and, 
 though an action at law might have been sus- 
 tained against them for money had and re- 
 ceived, a bill in equity was the proper mode 
 of procedure. Ibid. AiSrming, Varet d. Nea 
 Tork Ins. Co., 7 Paige Ch., 560. 
 
 9. Vendee. B. procured a policy in his 
 own name, as agent of the owners, on property 
 021 which he held a mortgage, of which inter- 
 est insurers were notified He afterwards ol)- 
 taiued title by foreclosure, and agreed to con- 
 vey to A. Insurers consented that the policy 
 should remain valid until the title should be 
 perfected. Held, plaintiff was legal owner, 
 and was entitled to recover the sum insured ; 
 that insurers were not entitled to subrogation, 
 for the benefits of the contract must inure to 
 the vendee as well as to the person insured. 
 Benjamin a. Saratoga GouiUy Mutual fire Ins. 
 Co., 17 N. Y., 415. 
 
 1 0. Mortgagee. In aa action by a mortga- 
 gee, he may prove that the mortgagor agreed 
 to pay the premiums, for that does not vary 
 the writing between insured and insurer; such 
 evidence is material, because it shows who is 
 entitled to the avails of the policy, and if an 
 agreement exists between the mortgagor and 
 mortgagee to that effect, insurers have no right 
 to subrogation. Kernocluin u. Neie Tork Bow- 
 ery Ins. Co., 17 N. Y., 428; s. c, 5 Duer, 1. 
 
 11. — The defendants were common car- 
 riers; and in their bills of lading, given to the 
 shippers, they stipulated: '■ In case of loss or 
 damage, for which the carriers may be liable, 
 they shall have the benefit of any insurance 
 by -Dr for account of the shippers." The goods 
 were damaged and an abandonment made to 
 insurers, who paid total loss, and claimed 
 damages of the carrier. HeLd, insurers had 
 only such rights against the carriers as in- 
 sured had; that so long as the contract be- 
 tween the shipper and the carrier was without 
 fraud and fairly made, it was valid and bind- 
 ing between them. Mercantile Mut. Ins. Co. v. 
 Calebs, 20 N. Y., 178. 
 
 12. Passage money. "On account of whom 
 it may concern, on all passage money received 
 by A. T. & Co., Liverpool to N. Y." The 
 passage money was paid in advance. She 
 sailed from Liverpool February 13, 1856, and 
 
1337 
 
 SUBROGATION. 
 
 133S 
 
 Wlien denied. 
 
 had not been heard of at the commencement 
 of this suit, more than twelve months after 
 she had sailed. Held, the fact that the passage 
 money was paid in advance was no defense to 
 the action. Ogden v. Mut. Ins. Go., 85 N. T., 
 418; s. c, 4 Bos., 447; 8 id., 348. 
 
 13. Vendee. Before the contract of sale 
 could be consummated, the property was con- 
 sumed ; and after that event anotlier contract 
 was entered into, between the vendor and ven- 
 dee, by which the latter was to pay a cer- 
 tain sum for the property, the claims against 
 the insurers, and the benefit of the policies for 
 the unexpired term. He was to keep the 
 property insured to secure unpaid purchase 
 money. Held, the vendee was entitled to the 
 benefit of the policies; that insurers were not 
 entitled to subrogation. Clinton «. Hope Ins. 
 Co.. 45 K. Y., 454; s. c, 51 Barb., 647. 
 
 14. Reinsurance, The C. L. A. Co. made 
 three ix)licies, each $5,000, niion the life of 
 H., payable to plaintiffs. The H. Mutual Life 
 Ins. Co. agreed with the C. L. A. Co. to assume 
 all risks taken by the latter, and to pay all 
 claimants such sums as the latter might be- 
 come liable to pay; but prior to this agree- 
 ment the C. L. A. Co. procured two other com- 
 panies to reinsure it, $5,000 each. H. died, 
 and the C. L. A. Co. collected the reinsurance. 
 Plaintiff now brought this action to recover 
 against the H. Mutual Life Ins. Co., upon 
 their agreement. Held, the plaintiffs were 
 entitled to recover, and their rights were un- 
 affected by the contracts of reinsurance, or by 
 the payment of the money under them (citing 
 Blackstone o. Allemania Fire Ins. Co., 56 N. 
 T^ 104). Glen v. Hope Mutual Life Im. Co., 
 56 N. T., 379; s. c , 1 N. T. S. C, 463. 
 
 15. — The p»»licy was made to P., general 
 owner, loss, if any, payable to C^ the plaintiff, 
 who had realized the whole or a larger part 
 of his interest in the property at the time suit 
 was brought £r«W, the policy was an insur- 
 ance to P., hence there was no equity which 
 would i)ermit insurers to succeed to the rights 
 of C, nor to make inquiry into the state of the 
 debits and crudits between P. and C. Coiu v. 
 Niagara Fire in*. Co., 60 N. T., 619; s. c, 3 
 N. T. S. C, 33. 
 
 16. Freight. "$6,000 on one-fifth of the 
 freight of the ship Mastiff, lost or not lost, 
 one year from September 10, 1859, at noon, the 
 whole freight valued at $30,000." She sailed 
 from San Francisco September 10, 1859, with 
 
 freight $1,876.75, and passengers who occupied 
 the hold between decks. When five days out 
 she took fire and was totally destroyed. Held, 
 the valuation was conclusive, nor could the 
 defendants claim an allowance for the passage 
 money which had been prepaid by the pas- 
 sengers to the insured, for that was recoverable 
 by the passengers from the ship owners, if 
 tliey chose to seek it (citing Bonsteel t. Van- 
 derbilt, 21 Barb., 36). Ddano v. American Ins. 
 Co., 43 Barb., 142. 
 
 17. The sheriff levied upon properly iu 
 which B. had an insurable interest, and which 
 B. insured. The property was destroyed by 
 fii«, and B.'s insurers paid his claim. Hdd, 
 the sheriff had no right or interest or claim as 
 against the money so paid. Perkins v. Proud, 
 63 Barb., 420. 
 
 ] 8. Mortgagee. P. being the owner of a 
 mortgage, procured insurance on the buildings 
 mortgaged, "On her interest as mortgagee." 
 Stipulated : " In case of loss the assured shall 
 assign to this company an interest in said 
 mortgage equal to the amount of loss paid. 
 The policy was for $4,000. The property be- 
 ing injured by fire exceeding the amount in- 
 sured, insurers paid the mortgagee the amount 
 of her debt, $7,044, and took an assignment of 
 it. The mortgage contained the usual cove- 
 nant for insurance on the part of the mort- 
 gagor, and in case he should fail to procure it 
 the mortgagee might do so, and the premium 
 should be a lien upon the premises. Held, 
 the insurance effected by the mortgagee was 
 made under the authority conferred by the 
 mortgage. The mortgagor was liable for the 
 premium and was entitled to the benefit of the 
 policy, the words of the policy to the contrary 
 notwithstanding, hence the mortgagor was en- 
 titled to credit for the amount insured. Foster 
 V. Van Reed, 5 Hun. (N. T.), 321. 
 
 19. Wrong doer.. Action to recover the 
 value of property destroyed by fire, caused by 
 the negligence of the defendant. Defendant 
 offered to show that the plaintiff had protected 
 himself by insurance and had received the 
 sum insured. JffeW, no defense to the action 
 (citing Merrick v. Brainard, 38 Barb., 574; s. 
 c. affirmed, 34 N. Y., 208). Collins v. New 
 Tork Central S. B., 5 Hun. (N. Y.), 503. 
 
 80. Vendee. Insured agreed to sell the 
 premises, received a portion of the purchase 
 money, and surrendered possession. After the 
 loss purchaser paid the balance. Held, in- 
 
1339 
 
 SUBROGATION. 
 
 1340 
 
 When denied. 
 
 surer -was not entitled to credit for it, it ap- 
 pearing that iiisnted had agreed to keep the 
 premises insured for the purchaser. SliotweU 
 0. Jefferson Int. Co-, 5 Bos., 247. 
 
 21. Bottomry. Time policy on hull, one 
 year, valued at $4,500. She met with a disas- 
 ter and put into Matanzas. A survey was 
 called, and it was deemed advisable to make 
 repairs. Owners had funds in the hands of 
 their correspondents there, which were used 
 to make repairs, but these being insufficient 
 the master borrowed $1,700 on a bottomry 
 bond, payable ten days after her arrival at 
 New York. She received further damage and 
 put into Savannah, where repairs to a small 
 amount were made. She set sail for New 
 York, but was totally lost off Cape Hatteras. 
 The lenders insured their bottomry interest, 
 and were paid the whole amount of their 
 claim. Held, insurers could not avail them- 
 selves of the fact that some of the money to 
 make repairs was borrowed upon bottomry, 
 for they were strangers to that contract. Read 
 o. Mutual Safety Ins. Go., 3 Sandf., 54. 
 
 22. — The insured proceeded first against a 
 municipal corporation for loss of property 
 caused by blowing it up to stay a conflagra- 
 tion, and recovered less than the sum insured. 
 Held, insurer was still liable for the residue. 
 Pentz e. Receivers qf JEtna Ins. (Jo., 9 Paige, 
 5C8; 3 Edw. Ch., 341. 
 
 •23. The judgment creditor of a corpora- 
 tion insured its real estate in the joint names 
 of himself and the corporation. It was after- 
 wards sold under his judgment, bid in by him, 
 and afterwards partially destroyed by fire. 
 Meld, he was entitled to the insurance money. 
 But if the loss had happened before the sale, 
 or if the debtor had redeemed, the insurance 
 money would have belonged to the judgment 
 debtor. Uiddes s. Rochester City Bank, 11 
 Paige Ch., 118. 
 
 24. If the assignee is to have the full ben- 
 efit of the insurance, he ought to pay the pre- 
 mium, which is the price of it Cleveland «. 
 Clap, 5 Mass., 201. 
 
 25. ^Mortgagee. B. P. & C. owned certain 
 lands, bnildings and machinery, subject to a 
 mortgage made by C. to A. & G., covering his 
 undivided one-third, to secure $5,000, and to a 
 second mortgage made by B. & P. of their 
 own undivided two-thirds, to secure $1,721 to 
 W. — B., P. & C. procured insurance to the 
 amount of $2,700, payable, in case of loss, to 
 
 670 
 
 H. & H., who held a third mortgage on the 
 machinery. Subsequently plaintiff bougBt all 
 of the interest which B., P. & C. had in the 
 property, subject to all of the incumbrances 
 mentioned. It was destroyed by fire, and fl. 
 & H. received from insurers the sum insured. 
 D. was subsequently appointed assignee of the 
 firm of B., P. & C, and recovered from H. & 
 H., $626.21, the excess of their debt, which 
 they had received from the insurance com- 
 pany. The plaintiff procured W. to assign 
 his mortgage to him, and A. & G. to assign 
 theirs. He then brought this suit to recover 
 the sum of $626.21, claiming it as assignee of 
 the mortgagees. Held, their was no privity in 
 fact or in law between the mortgagees and the 
 mortgagors. Wilson v. Hill, 3 Met., 66. 
 
 26. The mortgagee procured insurance for 
 his own protection, without consulting the 
 mortgagor. The buildings were destroyed, and 
 insurer paid the claim. The mortgagee en- 
 tered for condition broken, and this bill was 
 brought for the purpose of compelling the 
 mortgagee to credit against the debt tlie 
 money received from his insurers. Held, 
 there was no privity in fact or in law between 
 the plaintiffs and defendants in respect to tlie 
 policy of insurance, and the principal upon 
 which the mortgagor sought to maintaio this 
 right was unknown in law or equity. White b. 
 Broum, 2 Cash., 412. 
 
 27. — A., the owner of buildings, mort- 
 gaged the whole estate to B., and assigned 
 the insurance to him. He assigned the mort- 
 gage and the policy to C, to which insurer 
 assented. Insured sold the estate to D., who 
 agreed to pay off the outstanding mortgage, 
 which he did ; but the policy was never as- 
 signed to D. Held, the return premium paid 
 to C. was for the use of A. Pdton v. Brooke, 
 4 Cush., 203. 
 
 28. — A mortgagee insured his interest at 
 his own expense. Held, he was entitled be- 
 fore payment of tlie mortgage, to recover of 
 his insurer to his own use, without first as- 
 signing to his insurer, any part of his mort- 
 gage. King v. State Mutual Fire Ins. Co., 7 
 Cush., 1. 
 
 29. — The purchaser of an equity of re- 
 demption repaired the damage. Held, no de- 
 fense to the mortgagee's claim against his in- 
 surer. Foster o. Equitable Mut. Ins. Co., 8 
 Gray, 216. 
 
 30. On the charter of the barque " Wyan- 
 
1341 
 
 SUBROGATION. 
 
 1342 
 
 When denied. 
 
 dotte." The charterers agreed to pay for 
 tlie whole capacity of the vessel $5,000 on dis- 
 charge of the cargo at port of destination, and, 
 advanced fSOO to the master, which tliey 
 never formally demanded. She was lost on 
 the voyage. Htld, insurers were not entitled 
 to credit tor the amount advanced by the 
 charterers. Benner v. Equitable S<tf«ty Ins. Go., 
 6 Allen, 223. 
 
 31. Mortgagee. Policy to amortgagee up- 
 on his interest as mortgagee, stipulated: 
 " The assured shall assign all his rights to re- 
 cover satisfaction therefor fl-om any other 
 person or corporation." Insurers paid the 
 claim and brought this bill to compel an as- 
 signment of the mortgagee's d^bt against the 
 mortgagor. Held, tlioy were not entitled to it 
 (reaffirming King e. State Mul. Ins. Co., 7 
 Cush., 1). SuffoO: Fin In». Co. v. Boydm, 9 
 Allen, 133. 
 
 32. —Stipulated: "No sale of the prop- 
 erty shall aflfect the mortgagee's right to re- 
 cover a loss under tliis policy." T. owned 
 the premises subject to a mortgage in favor of 
 B., which provided that they should be in- 
 sured for the benefit of B. F. conveyed to P., 
 who insured at his own expense payable in 
 case of loss to B, P. sold to C, but as the 
 deed of F. to P. had never been recorded, F. 
 executed a new deed directly to C. Defend- 
 fendants paid the claim and took an assign- 
 ment of the mortgage and of B.'s right to re- 
 ceive Uie avails of the policy. C. subsequent- 
 ly conveyed to the plaintiff. Hild, the policy 
 was on the interest of the mortgagor which 
 he might enforce for his benefit or for the bene- 
 fit of his assignees ; that as defendants now held 
 the relation of assignees of the mortgage and 
 also that of debtors under tlie policy to be 
 paid to B. in discharge of the mortgage debt, 
 the law will treat it as paid, for the hand 
 which was entitled to receive, was bound to 
 pay. Oraca e. Hansen Fire Ins. Go., 10 
 Allen. 281. 
 
 33. Wrong doer. Insured were holders of a 
 bill of sale absolute on iu face; but it was 
 given to secure certain indebtedness. The 
 master of the ship barratrously sold her and 
 insured abondoned to insurers and were paid 
 a total loss. Insured brought this action 
 against the purchasers. Held, an abandon- 
 ment to their insurers and payment for a 
 total loss was no defense to this action (citing 
 Yates «. White, 4 Bing. N. C. 272). The 
 
 question, whether the damages recovered will 
 belong to the plaintiffs or the insurei-s, is not 
 the defendants' concern. Glark v. Wilton, 
 108 Mass., 210. 
 
 34. Action against a wrong doer for 
 burning plaintiff's house. It was insured and 
 the insurers had paid the claim of tlie in- 
 sured. Held, the transaction between the in- 
 surers and the owners of tJie propc-ty did 
 not concern the wrong doer nor did they 
 affect tlie measure of his liability. Huyward 
 V. Gain, 105 Mass., 213. 
 
 35. Warehousemen made insurance for the 
 benefit of carriers, on goods, by them depos- 
 ited in warehouse, a part of which was cotton. 
 In the bills of lading given for it, dangers 
 of navigation and fire were excepted. The 
 consignees, without request from consignors, 
 had previously effected insurance on other 
 property of the same kind, but none on the lot 
 last received, aportion of which was consumed 
 by fire before consignee knew of its arrival. 
 HtM, insurance made for the benefit of the 
 carrier did not inure to the benefit of the own- 
 ers of the cotton. Steele v. Franklin Ine. Go., 
 17 Penn. St, 290. 
 
 36. Vendee. Where the insurance is upon 
 the building and not upon the purchase money 
 due, the insurer cannot claim a cession of the 
 insurer's title to the lot, nor to his claim 
 against the vendee. Insurance Go. v. Updegraff, 
 21 Penn. St., 513. 
 
 37. — The insured mortgaged the property 
 and assigned the policy to W., who assigned 
 to E. Subsequently insured conveyed tlie 
 property to C, and assigned the policy to him, 
 but insurers refused their assent ; W. assigned 
 his mortgage to E., and the company insured 
 his interest as mortgagee. The property be- 
 ing consumed the company paid the claim to 
 E. Held, insurers had the right to recover the 
 mortgage debt. Thornton «. Enterprise Ins. 
 Go., 71 Penn. St, 234. 
 
 38. Life. The plaintiff had been compelled 
 to pay a policy on the life of a person whose 
 death was caused by the negligence of the de- 
 fendant Held, the plaintiff could not recover 
 (citing Rockingham Mutual Fire Ins. Co. «. 
 Bosher, 89 Me., 233). Connecticut Mutual L^e 
 In*. Co. «. N. r. and N. H. R. R. Co., 35 Conn., 
 265. 
 
 39. Wrong doer. The property insured 
 was burned by the negligence of defendant, 
 and plaintiff's insurers paid insured the amount 
 
 671 
 
1343 
 
 SUBROGATION. 
 
 1344 
 
 When denied. 
 
 of loss. This action was brought by him to 
 recover of the wrong doer. Hdd, payment by 
 insurer could not afifect plaintiffs right of ac- 
 tion. Weber v. Morris and Essex B. B,, 35 N. 
 J., 409. 
 
 40. A purchaser of an equity of redemp- 
 tion may insure it for his own benefit, and he 
 is entitled to retain the insurance money. The 
 mortgagor in a proceeding to redeem is not 
 entitled to any of the benefits arising from the 
 mortgagee's contract with the insurers. Gush- 
 ing «. Thompson, 34 Me., 496. 
 
 41. Wrong doer. Insurer paid insured the 
 amount of his claim and sought to recover of 
 the defendant, on the ground that the fire was 
 the willful and malicious act of defendant, 
 done for the purpose of injuring insured and 
 insurer, to which there was a demurrer. Jleld, 
 insurer had no right of action, for the common 
 law gave him none, and the statute law of the 
 state gave none; and payment by insurer to 
 the owner did not bar the owner's right of ac- 
 tion against the party originally liable for the 
 loss, and therefore insurer could not in his own 
 name maintain the action. BoeMngTiani Mu- 
 tual Fire Ins. Co. v. Bosher, 39 Me., 253. 
 
 42. The mortgagee made insurance upon 
 the premises. He stated his interest was that 
 of a mortgagee for a debt secured by mortgage ; 
 subseciuently he advertised a foreclosure of 
 the mortgage, and a loss afterwards occurred. 
 He assigned the debt to his insurers, who 
 sought to recover possession of the mortgaged 
 premises. Held, when the mortgagee insures 
 his own interest without any agreement be- 
 tween him and the mortgagor therefor, and a 
 loss occurs, the mortgagor is not entitled to 
 any allowance against the loss in reduction or 
 discharge of his debt (citing White v. Brown, 
 2 Gush., 413; King v. State Fire Ins. Co., 7 id., 
 1 ; Gushing «. Thompson, 34 Me., 496). Con- 
 cord Union Mutual Fire Ins. Co. v. Woodbury, 
 45 Me., 447. 
 
 4:-J. Mortgagee. Plaintiff held the legal 
 title to the property, at the time of the loss, by 
 deed absolute, but it was intended as a mere 
 security for a debt of |600 due by the grantor 
 to the grantee. The plaintiff procured insur- 
 ance and insurer paid the sum insured, taking 
 from insured an assignment of his claim. The 
 action was commenced in the name of insured 
 for a loss caused by tlie defendant, and sub- 
 sequently insurer's name was indorsed on the 
 writ as assignee. Weld, he was entitled to 
 873 
 
 recover the whole value of the property ; that 
 as to the division of the money paid on the 
 judgment the defendants had no concern. 
 Bean v. Atlantic and St. L. B. Co., 82 Me. 
 
 44. Freight. On cargo damaged by a peril 
 insured against, and the voyage abandoned 
 by the carrier. Held, insurers were not en- 
 titled to have credit for the freight which was 
 not paid to the carrier and saved by the ship- 
 per, for the insurers of cargo had no concern 
 with the contract of affreightment. Ports- 
 mouth Ins. Co. V. Brasee, 16 Ohio, 81. 
 
 45. Mortgagee. The owner mortgaged 
 and then effected insurance upon his interest 
 as mortgagor. Held, the mortgagee had no 
 rights or interest in the contract of insurance 
 (citing Wilson d. Hill, 3 Met., 66 ; Powell u. 
 Innes, 11 M. & W., 10; Columbia Ins. Co. v. 
 Lawrence, 10 Pet., 507; Carpenter v. Provi- 
 dence Washington Ins. Co., 16 PetJ, 495 ; Han- 
 cox V. Pishing Ins. Co., 3 Sumn., 133). Ma- 
 Dmald n. Black, 20 Ohio, 185. 
 
 46. Wrong doer. The vessel insured was 
 damaged by collision, and the insured re- 
 covered from the wrong doer. The insurers 
 refused to prosecute the wrong doer or to 
 contribute in any respect to that prosecution, 
 but paid insured the claim in full. Held, 
 insurers were not entitled to any part of the 
 money recovered, because they refused to 
 hazard the costs of recovery. Neweomb v. 
 Cincinnati Ins. Co., 22 Ohio St., 382. 
 
 47. Rebuilding. B. was insured upon 
 property on leased land, which was burned. 
 F. had an agreement to purchase of S., and 
 rebuilt the premises. Held, insurers could 
 not claim to be released on the ground that F. 
 liad rebuilt, nor could they claim any rights 
 of subrogation until they had made full pay- 
 ment to the insured. People's Ins Co. v. StraelUe, 
 2 Gin. Sup. Ct., 186. 
 
 48. Co-insurers. Three policies by dif- 
 fcrent companies upon one ship. One com. 
 pany paid the whole loss and insured brought 
 suit against another, for the use of the first, 
 for a pro rata share of the loss. Held, the 
 several underwriters were stangers to each 
 other; that each was liable on its separate 
 contract for its just proportion of the loss, 
 and it would be manifest injustice to allow 
 one to escape payment of its own just debt 
 because another debtor, an entire stranger, 
 had paid to the creditor more than he was 
 justly entitled to claim ; that such a payment 
 
1345 
 
 SUBROGATION. 
 
 1346 
 
 When denied. 
 
 does not necessarily discharge tlie debtor, and 
 cannot be taken advantage of by him unless 
 he shows it was intended by the payer and 
 receiver to operate as a discharge (citing Mer- 
 riman v. The State, 5 H. & J., 423). Whiting 
 V. Independent Mut. Ins. Co., 15 Md., 297. 
 
 49. The mortgagors procured insurance 
 and agreed to convey the property. Before 
 the conveyance was made, a loss occurred. 
 Subsequently the parties completed their 
 agreement, the conveyance being delivered, 
 the vendee to have the benefit of the in- 
 surance money. Held, insurers had no right 
 to subrogation. Washington fire Ins. Co. v. 
 .?«%, 32 Md., 421. 
 
 50. Wrong doer. Tlie defendant took pos- 
 session of goods, and this action was brought 
 to recover them. They were desU'oyed by 
 fire while in the defendant's custody; but 
 were insured for their full value and insurers 
 had paid the sum insured to the plaintiff. 
 Held, the defendants had no concern with any 
 contract the plaintiff may have had with any 
 other party in regard to the goods ; his rights 
 or liabilities could neither be increased nor 
 diminished by the fact that such a contract 
 existed (citing Merrick v. Brainard, 38 Barb., 
 574). Ferroit v. Shearer, 17 Mich., 48. 
 
 51. — The contract of insurance is personal 
 and does not pass with the title of the prop- 
 erty insured (citing Ellis on Ins., 72; Phillips 
 on Ins., 27 ; Sadler's Co. v. Badcock, 2 Atk., 
 554). Disbrcne v. Jones, Harring. (Mich.) Ch., 
 48. 
 
 52. Mortgagee. The policy was made to 
 A. His interest was that of mortgagee, but it 
 ■was not disclosed. The mortgagors paid the 
 debt to the mortgagee. Held, the mortgagee 
 was, notwithstanding the payment of the debt, 
 entitled to recover of the insurer; the right of 
 subrogation did not arise in the case, because 
 the insurer had not paid the claim of the in- 
 sured ; had the insurer paid the claim, then 
 the right of subrogation would have been 
 complete. Norwich Fire Ins. Co. v. Boomer, 
 
 52 111., 442. 
 
 53. D. demised to E., who covenanted to keep 
 the premises in repair at hi? own expense and 
 to deliver them to the lessor at the end of the 
 term in as good order and condition as they 
 were when he entered. D. procured insurance 
 on the buildings, which were consumed by 
 fire within the term. E. rebuilt and brought 
 this bill to compel the lessor to account to 
 
 43 
 
 him for the money received of tlie insurance 
 companies. Held, the bill must be dismissed, 
 for the insurance money was the property of 
 D. (citing King v. State Tire Ins. Co., 7 Cush., 
 10; Leeds B. Cheatliam, 1 Sim., 146). SJly n. 
 Ely, (111. S. C), 8 Chi. Leg. News, 161. 
 
 54. Carriers. The owner brought suit 
 against the carriers upon a contract of af- 
 freightment to carry the goods from Louis- 
 ville to New York. The carriers relied upon 
 a provision in the contract of affreightment 
 entitling them, in the event of their liability 
 for damage, to recover from or take to them- 
 selves the benefits of the owner's contract of 
 insurance. Held, the carriers were properly 
 remitted to their independent action^in whicli 
 must be decided whether any agreement be- 
 tween carrier and Insured can make the un- 
 derwriter liable to the carrier; and without a 
 special agreement the carrier would not be 
 entitled, even after payment of the damages, to 
 substitution against the underwriter (citing 
 2 Arnold on Ins., 1178; 3d ed. Phillips on 
 Ins., 1707; Clark ». Blything, 2 Earn. & Ores., 
 254; Yates «. Wliyte, 4 Biug., N. C, 272). 
 Cincinnati, Hamilton and Dayton li. B. Co. v. 
 Sprati, 2 Duvall, 4. 
 
 55. Vendee. Insured agreed to sell the 
 premises and assign the policy to the vendee, 
 and to take back a mortgage as collateral se- 
 curity. After the fire the sale was perfected. 
 Held, insured was entitled to recover the 
 whole amount of loss. Fire and Marine Ins. 
 Co. of Wheeling v. Morrison, 11 Leigh, 354. 
 
 56. — Against loss or damage by fire, $1,500 
 on a two stoiy frame house ; $900 on another 
 building in the rear thereof, and $600 on sta- 
 ble and sheds. Insured was not owner, but 
 held a conventional and judicial mortgage 
 against the property. Held, the plaintiff was 
 entitled to recover to the extent of the loss ; 
 for it did not appear that he had collected 
 anything from his debtor, nor did it appear 
 that insurer had tendered the amount of the 
 loss, and demanded subrogation pro tanto. 
 Kellar v. Merchants Ins. Co., 7 La. An., 29. 
 
 57. The vendee purcliased a plantation 
 subject to a lease, and at that time the vendor 
 had an insurance upon the cotton gin on the 
 plantation for the sum of $5,000. Tlie policy 
 was not transferred to the purchaser, nor was 
 there any agreement to ti-ansfer it. The cot- 
 ton gin was burned nearly two months after 
 the sale took place. Insm-ers compromised 
 
 673 
 
1347 
 
 SUBROGATION. 
 
 1348 
 
 When daiied. 
 
 the vendor's claim and paid hira $3,440. Held, 
 the vendee waa entitled to none of it, for the 
 sale did not operate as an assignment of the 
 policy; the contract of insurance is strictly 
 personal, and is not an incident to the subject 
 insured (citing 2 Duer on Insurance, 53 ; 1st 
 Phillips on Insurance, sec. 86 and 87) ; and 
 it was irrelevant to inquire whether the 
 vendor was or was not entitled to recover 
 from his insurers. King v. Preston, 11 La. 
 An., 95. 
 
 58. Carrier. The goods were insured 
 against loss by fire. They were burned while 
 in transit. Insurer paid the loss and brought 
 suit in the name of the insured, agaiust the 
 carrier. Held, there was no contract existing 
 between the carrier and insurer, and unless 
 there was a conventional snhrogation from 
 insured to insurers no obligation existed as 
 between the insurer and the carrier. (Three 
 judges concurring and two dissenting). Car- 
 roll D. New Orleans, J. & G. N. R. R. Go., 26 
 La. An., 447. 
 
 59. Life. A. procured insurance upon her 
 life for the benefit of her infant child, in- 
 tendingit as a voluntary provision for the child. 
 B. advanced the money required to pay the 
 premiums for several years, then A. agreed 
 with B. that he should take the policy as his 
 own, and release her from the repayment of all 
 moneys by him paid thereon, to which insurers 
 assented, and B. continued to pay the pn mi- 
 nms until A. died. He received the money 
 due on the policy, and signed for it as guardian, 
 in order that it might agree with the terms of 
 the policy. Held, the person insured might, 
 with the consent of the company, transfer the 
 policy to B., to be by him held for his sole use 
 and benefit, and that the person beneficially 
 named in the policy, could not require B. to 
 account for the money received. Olark v. Du- 
 rand, 12 Wis., 223. 
 
 fiO. Co-insnrers. Stipulated : " In case of 
 any other insurance upon the property, the 
 insured shall not be entitled to receive of this 
 company any greater proportion of the loss 
 than the amount hereby insured shall bear to 
 the whole amount insured." The defendant 
 answered that the actual loss did not exceed 
 $2,700, the whole of which had been paid by 
 oth^ insurers. Held, a demurrer to this an- 
 swer was properly sustained, for if other com- 
 panies had paid more than their ratable por- 
 tion of the loss, that was a matter solely be- 
 674 
 
 tween them and the insured. WitzHmmont «. 
 Gity Fire Ins. Go., 18 Wis., 234. 
 
 61. Wrongdoer. The defendant was em. 
 ployed to tow the plaintiffs schooner across 
 the bar ; the hawser by which she was attached 
 to the tug parted, and the schooner was lost. 
 The plaintiflf was insured to tlie extent of one- 
 half of the schooner's value; and insurer paid 
 the claim. This action was brought in the 
 plaintiff's name, and so far as the record dis. 
 closed, insurer was not interested in the sui',. 
 Held, the plaintiff could maintain the actioq 
 in his own name for the whole amount of dam- 
 ages ; the question of iusnrance was not matCL 
 rial (citing Prop. Monticello v. MoUison, 17 
 How., 152). White v. Steam Tug Mary Anne, 6 
 Cal., 462. 
 
 62. Collision. The defendant was sued for 
 damages done by his ship to the plaintiff^s. 
 The case was referred to an arbitrator to ascer- 
 tain the damage, who found that the plaintiff 
 had received from his insurers of the ship the 
 amount of a particular average, and from the 
 consignees of the cargo £45, both sums being 
 in respect of the damages sued for. The arbi- 
 trator also found the action was commenced 
 and carried on by the plaintiff for his own use 
 and benefit, and was neither commenced not 
 earned on by the authority of the insurers. 
 Held, a recovery upon a contract with the in- 
 surers was no bar to the plaintiff's action. 
 Per BosAKQUET, J. : "The contract witl> the 
 oflSce strictly taken is a wager, liberally it is 
 an indemnity, but on the words, it is only a 
 wager, of which third persons shall not avail 
 themselves." Tatei v. Whyte, 4 Bing. N. C, 272 ; 
 7 L. J. (N. S.) C. P., 116. 
 
 63. Wrong doer. Action brought by in- 
 sured against the wrong doer. Held, proof 
 that insurers had paid for the loss was no de- 
 fense to the action. Mason «. Sainsbury, 8 
 Doug.; 61 ; Hart v. Western Railroad Co., 13 
 Met., 99. 
 
 64. The charter party stipulated, in case 
 she shall be lost, the charterer shall pay the 
 owner a sum of money named, as the value of 
 the ship. Held, the owner was not bound to 
 trust exclusively tj) the credit of the charterer, 
 but might protect himself by insurance. Hobbs 
 V. Hannam, 3 Camp., 93. 
 
 65. Mortgagee. The defendant was mort- 
 gagee of the ship for £900. He insured her 
 with the plaintiff for £2,000, valued at £3,000- 
 He had prior insurance £1,700, valued at 
 
1349 
 
 SUBROGATION. 
 
 1350 
 
 When denied. 
 
 £3,000. flWd, it was a question for the jury to 
 determine, whether he intended to insure his 
 own interest only. If he intended to insure 
 the whole value of the ship, then he was enti- 
 tled to recover and retain botli sums insured, 
 for the benefit of himself and the mortgagor. 
 Irving v. Riehardson, 2 B. & Ad., 193 ; 1 M. & 
 Rob., 153. 
 
 66. One who fraudulently recovers from 
 his insurer on a policy by him eflFected to pro- 
 tect a pretended interest, is not liable over to 
 the real owner. The wrongful receipt of tlie 
 money does not convert the party taking it 
 into a trustee of the true owner. Orant v. Hill, 
 4 Taunt., 380. 
 
 67. An irredeemable aumuity was granted 
 to B., and the grantor assigned to the grantee 
 a policy on his life for her to hold as her prop- 
 erty forever. It was stipulated between the 
 grantor and grantee that as soon as the grantor 
 should give unexceptionable security for the 
 payment of the annuitj', it should be reduced 
 £14 19s. 2d., the annual premium paid upon 
 the policy. Security was never given. The 
 grantee died, having been paid all the arrears 
 of the annuity ; then the grantor died. Held, 
 the representatives of the grantee were entitled 
 to all the benefits of the policy, notwithstand- 
 ing several annual premiums were voluntarily 
 paid by the grantor after the death of the 
 grantee. Kavanaghv. Waldron, 3 Jo. & Lat, 
 214. 
 
 68. Annuity. G. granted an annuity to D., 
 with right to redeem by payment of a sum 
 certain; and the grantee effected insurance 
 on the life of G., but G. bound himself to pay 
 the premiums, and subsequently elected to re- 
 deem. The grantee refused to deliver up the 
 policy. Held, it belonged to the grantee. As 
 a general rule, if the grantee of an annuity in- 
 sures the life of the grantor the policy belongs 
 to the grantee; but there may be special cir- 
 cumstances, amounting to a contract, which 
 would affect that general rule and cast the 
 right to the policy upon the grantor. Chtt- 
 Ueb V. Graneh, 4 De G., M. & G., 440 ; 22 L. J. 
 Ch., 912; 17 Jur., 704. 
 
 69. A debtor, at the request and expense 
 of his creditor, insured his life for £400, which 
 was less than the debt, and nominated the 
 creditor as his person to receive the money. 
 Afterwards the debt was reduced below the 
 sum insured, and the debtor died. The cred- 
 itor received the sum insured. Held, the 
 
 debtor's administrator had no right to the 
 difference between the balance of the debt 
 and the sum insured. Brown u. Freeman, 4 
 De G. & S., 444. 
 
 70. The grantee of an annuity effected 
 a policy on the lives for which the annuity 
 was granted, without any agreement between 
 him and tlie grantor. Held, the policy was 
 the property of the grantee as much so as any- 
 thing else which he might have purchased. 
 In re Jacob, 4 De. G. & S., 524. 
 
 71. Compromise. Ship was captured by 
 the Brazilian government. Ship and cargo 
 were condemned for an attempted breach of 
 blockade. Insurer refused the offer of aban- 
 donment, and, after some negotiation, paid to 
 insured thirty-five per cent, on the sum in- 
 sured, and the policy was delivered up and 
 canceled. Some years after, the Brazilian 
 government awarded compensation to the 
 British government for this and other cap- 
 tures, and a claim was preferred by the in- 
 surer for this capture. Held, neither party 
 contemplated the settling of a total loss ; that 
 the sum paid absolved insurer fhim all further 
 claims, and in like manner released insured in 
 respect of all demands in favor of insurer; 
 therefore, insurer could not be permitted to 
 claim any part of the money awarded by the 
 Brazilian government Brookt v. MaeBonnell, 
 1 You. & Coll., 500. 
 
 72. Suicide. " To be void if he should die 
 by his own act, whether felonious or not, or 
 by the hands of justice; except to the extent 
 of any interest acquired therein by actual as- 
 signment, by deed, for a valuable considera- 
 tion, or as security or indemnity, or by virtue 
 of any legal or equitable lien as security for 
 money." Insured borrowed money from R., 
 for the repayment of which he pledged the 
 policy and certain freehold and copyhold 
 estates. The mortgage debt exceeded the 
 sum insured, but the sum insured aud the 
 estates greatly exceeded the debt. Insured 
 died by his own act, and an action at law was 
 brought, which did not proceed to trial, the 
 insurers having paid to R. the sums insured. 
 This bill was filed to have the mortgage debt 
 thrown primarily on the real estate, or to have 
 it apportioned upon the moneys paid under 
 the policy, and the value of the real estate, 
 and to repay out of the real estate the moneys 
 paid by the insurers. Held, the insurers had 
 no equities against the freehold and copyhold 
 
 675 
 
1351 
 
 SUBROGATION. 
 
 1352 
 
 When denied. 
 
 estates, and were therefore not entitled to be 
 refunded any of the money. Solicitors General 
 Life Ams. Soe. v. Lamb, 2 De G., J. & S., 251 ; 
 10 Jur. (N. 8.), 739; 33 L. J. Ch., 426; 12 W. 
 E., 941 ; 10 L. T. (N. S.), 702. 
 
 73. Bottomry. A. loaned £250 on bottom- 
 ry, and insured the same on the ship. She was 
 lost, and he received the money insured from 
 his insurers, and also put the bottomry 
 bond in suit. The obligee brought tliis bill 
 insisting that A. ought not to have a double 
 satisfaction. Held, the defendant having paid 
 the premium was entitled to the benefit of the 
 policy ; that the complainant had no right to 
 the money recovered on the policy. Harman 
 •0. Vanhntton, 2 Vern., 717. 
 
 74. A debtor and his wife assigned her 
 chose in action to debtor's creditor to secure 
 £300, and the creditor Insured the life of the 
 wife for £200. The wife died before the 
 chose was reduced to possession. The in- 
 surer paid tlie sum insured, and the debtor 
 sought to redeem, and claimed that the money 
 received of the insurer ought to be setoff 
 against the debt, and the security discharged 
 upon payment of tlie balance. It appears that 
 the debtor was wholly ignorant that the pol- 
 .icy had been effected. Jleld, the debtor was 
 
 entitled to a decree for redemption ; but he was 
 not entitled to have the money paid by the 
 insurer to the creditor applied to the reduction 
 of the debt. Henaon v. Blacleinell, 4 Hare, 434; 
 .14L. J., Ch., 329. 
 
 7.5. — J. effected a policy on the life of S., 
 his brother, which recited that J. had depos- 
 ited a declaration of a certain date, setting 
 forth the age of S., etc., and that J. had an in- 
 terest in the life of S. to the extent of the in- 
 surance. The policy recited that the heirs, 
 executors and assigns of J. should be entitled 
 to receive, etc. S. died and J. became his ad- 
 ministrator. The first three premiums were 
 paid by S. Held, the form and declaration of 
 the policy made it •prima facie the property of 
 J., and there was not sufiacient evidence to re- 
 but that presumption. Triaton v. Harden, 14 
 Beav., 232. 
 
 76. AimTiity. The policy was effected and 
 the premiums were paid by the grantee of an 
 annuity, who agreed to assign the policy 
 whenever the annuity should be redeemed. It 
 was never redeemed. Held, the representatives 
 of tlie grantor were not entitled to the avails 
 of the policy. Saahford v. Cann, 33 Beav., 109. 
 676 
 
 77. Compromise. The ship was insured by 
 B. for 18,000 guilders, and by R. for £1,500. She 
 was seized by the Spanish, carried into Ha- 
 vana and condemned. B. paid the sum in- 
 sured, and R. compromised and renounced sal- 
 vage. A sum of £20,050 18s. 6d. awarded by 
 the commissioners for the distribution of 
 prizes, was paid to the executors of the insured. 
 Held, the executors took the money in trust 
 for the benefit of the insurers, who had made 
 satisfaction to the insured; that B. was enti- 
 tled to the whole amount by him paid on the 
 loss, and that R. was entitled to nothing, be- 
 cause he had renounced all benefit of salvage. 
 Bliuntfipot V. Da Casta, 1 Eden, 130 ; Randall 
 V. Cochrane, 1 Ves., 98. 
 
 78. P. mortgaged property insured, with 
 the policies thereon, and sold hb equity of 
 redemption. The policies lapsed, and an as- 
 signee of the purchaser, without the knowl- 
 edge of the mortgagor, substituted another pol- 
 icy on the mortgagor's life, in the same com- 
 pany, and assigned it as security for the debt. 
 The assignee of the purcliaser paid the debt, 
 and continued to jiay the premiums on that 
 policy. Held, the insurance money belonged 
 to the person who, without any obligation to 
 do so, paid the premiums at his own risk and 
 expense. NeaUttv. Berridge, 9 L. T. (N. S.), 588. 
 
 79. Creditor. D., to secure himself a bal- 
 ance due from B., an Indian oflBcer, insured 
 the life of B., paid the premiums, and debited 
 them in the account of B. He drew for the 
 balance and premiums, but the draft was dis- 
 honored. B. died, and insured received tl\e 
 sum insured. Held, he was no.t bound to ac- 
 count for it to the estate. Reversing s. c, 8 L. 
 R. Eq., 430; Bruce t>. Garden, 5 L. R. Ch., 82; 
 39 L. J. Ch., 334 ; 18 W. R., 384. 
 
 80. Vendee. The house was insured 
 agaiust loss by fire in the name of a trustee 
 who had contracted to sell it ; but it was burned 
 before the sale was completed. The trustee, 
 in settling with the purchaser, deducted from 
 the purchase price the money received from 
 the insurance company. The trustee having 
 become bankrupt, this bill was filed against 
 the purchaser. Held, the cestuis que trust wer<! 
 entitled to a lien upon the property for the 
 amount deducted as unpaid purchase money. 
 Poole v. Adams, 33 L. J. Ch., 630 ; 12 "W. R., 
 683; 10 L. T. (N. S.), 287. 
 
 81. The grantee of an annuity Insured the 
 life of the grantor, the annuity having been 
 
1353 
 
 SUBROGATION. 
 
 1354 
 
 When denied. 
 
 calculated so as to include the premium and 
 interest money. The grantor covenanted to 
 repay to the grantee any additional premium 
 he might be required to pay by reason of the 
 grantor's traveling beyond the limits men- 
 tioned in the policy. The grantor having the 
 right to repurchase, discharged the annuity. 
 Held, the policy belonged to the grantee. 
 Knox V. Turner, 39 L. J. Ch., 207, 750; 9 L. 
 R. Eq., 155; 21 L. T. (N. S.), 701 ; 5 L. R. Ch., 
 515; 23 L. T. (N. S.), 237: 18 W. R , 276, 873. 
 
 82. Vendee. Defendant agreed to buy of 
 the plaintiff four fillings of sugar, each con- 
 sisting of from two to three hundred loaves or 
 titlers, payment prompt at one month, goods at 
 seller's risk for two months, the prompt day 
 being the Saturday next after the expiration of 
 one month from the day of sale. Defendant 
 had paid on all delivered a sum approximat- 
 ing the amount; and there remained April 24, 
 1870, 967 titlers not weighed, 932 of which 
 were destroyed by fire that day, value being 
 £743 2s. The plaintiffs had insurance up- 
 on their stock £30,200, " on goods manufac- 
 tured and unmaUufactured, sold or contracted 
 to be sold, but not delivered." The insurance 
 companies paid £29,877 15s. ; tliere was salv- 
 age £2,733 10s. The whole stock at the time 
 of the fire was worth £35,117 7s. 6d. The time 
 had expired for which the goods were to be 
 at seller's risk. Held, the purchaser was not 
 entitled to credit for any of the moneys paid 
 by the insurance companies. Martineau v. 
 Kilching, 7 L. R. Q. B., 436 ; 41 L. J. Q. B. 227. 
 
 83. The grantee of a redeemable annuity 
 made insurance upon the life of the grantor 
 and paid all the premiums. At the expiration 
 of five years the grantor offered to redeem, 
 but demanded an assignment of the policy. 
 Held, the gi-antor was not entitled to if Law 
 c. Warren, Drury, 31 ; 8. c, 6 Ir. Eq., 299. 
 
 84. Creditor. H. obtained judgment for 
 £8,000 against L. on a bond conditioned for 
 the payment of £1,500 and costs, which judg- 
 ment was assigned to I. ; and L. executed his 
 bond to I. for the payment of £800 with inter- 
 est, on which judgment was entered, Trinity 
 term, 1826. Whilst I. was entitled to said 
 sums, he insured the life of L. for £999 19s., 
 iind he also insured in the name of H. a further 
 sum on the life of L., £999. At the time tliese 
 were effected there was more than £2,000 due 
 I. under the indebtedness. I. paid the pre- 
 miums, and received upon both policies 
 
 £1,998 19s. The question was, whether insur-, 
 ances made by the creditor on the life of his 
 debtor, and which, since the dealh of the 
 debtor, had been discharged by the insurer, 
 were to be considered as between the creditor 
 and the debtor a discharge pro tanto of the 
 debt. Seld, the contracts of insurance were 
 between persons with whom the debtor had 
 no concern or privity; he must pay his debt 
 without reference to the contracts of insurance. 
 Humphrey v. Ardbin, L. & Qt. temp. Plunk., 318. 
 
 85. — Policy was effected as a security for 
 the return of certain money advance!!. There 
 was no contract on the part of the grantee to 
 keep the policy in force, but he kept it in 
 force by paying tlie premiums. Held, the 
 court would not give the avails of the policy 
 to a person who had not paid the premiums; 
 that the person who paid the premium was 
 entitled to the money. Milliken «. Kidd, 5 
 Ir. Eq., 396. 
 
 86. — A policy was effected on the life of the 
 mortgagor's surety. The mortgagee took pos- 
 session of the mortgaged premises, and paid 
 the premium to keep the policy in force. 
 Held, the mortgagor was not entitled to be 
 credited with the money received on the pol- 
 icy. Bell e. Alieame, 12 Ir. Eq., 576. 
 
 87. Annuity. Gr. granted a redeemable 
 bond of annuity, £321, to K. Nothing was 
 said about, making insurance, but K. insured 
 the life of G. for the amount paid, namely 
 £2,200. G. availed- himself of the right to re- 
 deem, and K. sold the policy of insurance to 
 tlie company. Held, G. had no right to the 
 avails of the policy. Lyon v. M'Elew, 1 C. C. 
 S., 47. 
 
 88. Creditor. A. being a creditor of B. to 
 the extent of £40, interfered to procure the 
 other creditors to accept a composition of ten 
 shillings in the pound. B. convoyed all his 
 property to A. in trust, and A. insured B.'s life 
 for £300. Held, the avails of the policy was 
 the property of A. Steeenson ■o. Cotton, 8 C. 
 C. S., 872; 18 Scot. Jur., 465. 
 
 89. Collision. The defen,ders were liable 
 for damages caused by collision, which the 
 jury fixed at £556 ; but they appended to their 
 verdict the further finding, "The pursuers 
 have already been paid £350 by the insurers 
 of ship in respect of the same damages." 
 The sum had been taken as a compromise be- 
 tween insured and insurei's. Held, insured 
 was entitled to judgment for the whole ver- 
 
 677 
 
1355 
 
 SUICIDE, OR " DEATH BY HIS OWN HAND." 
 
 1356 
 
 What is not. 
 
 diet. Morrison v. Bartolomeo, 5 C. C. 3., 3d 
 ser., 848. 
 
 SUBSCRIPTION OF POLICY, 
 
 (See CoHTBAOT VI.) 
 
 SUICIDE OR "DEATH BY HIS OWN 
 HAND." 
 
 I. What is not. 
 
 II. NOT ETIDENCB OF 
 
 ni. 18. 
 
 IV. Onus pkobandi. 
 y. Pbbsdmptions. 
 
 VI. COKSTKTJCTION. 
 
 I. What is not. 
 
 1. Stipulated: "If insured sliall die by his 
 own hand, this policy shall be null and void." 
 He died from the effects of poison adminis- 
 tered by his own hand. Held, although de- 
 ceased had the capacity to know that he was 
 about to take poison, and that his death would 
 be the result, yet if he was impelled by an in- 
 sane impulse which he was not able to resist, 
 he was not responsible for his conduct, and it 
 was not death by his own hand (citing Easta- 
 brook «. Union Ins. Co., 54 Me., 224 ; Breasted 
 ■0. Farmers Loan and Trust Co., 4 Hill., 73 ; 
 8. c, 8 N. T., 299; Gay «. Union Mutual Life 
 Ins. Co., 9 Blatch., 142; afBrming 8. c, 1 Dil. 
 Cir. Ct., 403). Life Ins. Go. v. Terry, 15 Wall., 
 580. 
 
 2. Stipulated : " If the person whose life is 
 insured shall die by suicide, this policy shall 
 be null and void." He killed himself with a 
 pistol. Meld, if at the time he fired the pistol 
 he was conscious of the act he committed, in- 
 tended to take his own life, and was capable 
 of understanding the nature and consequences 
 of the act, insurers were not liable; and, 
 whether he was capable of understanding its 
 moral aspects, or of distinguishing between 
 right and wrong, was immaterial ; but, if he 
 was not thus conscious, or had no such capa- 
 city, but acted under an insane delusion over- 
 powering his understanding and will, or was 
 impelled by an uncontrolable impulse, which 
 
 678 
 
 neither understanding nor will could resist, 
 then the insurers were liable; but the onus of 
 proof was upon tlie plaintiff to make out that 
 when he committed the act he was in the con- 
 dition stated in the rule. Gay v. Union Mutual 
 Life Ins. Co., 9 Blatch., 142. 
 
 3. Stipulated: "In case the insured shall 
 die by his own hand, or in consequence of a 
 duel, or by the hands of justice, it sliall be 
 void." The person whose life' was insured 
 threw himself into the Hudson river and was 
 drowned. Held, self destruction in a flt of in- 
 sanity was not "death by his own hand." 
 Breasted v. Farmers Loan and Trust Co., 4 Hill, 
 78; affirmed, 8 N.Y., 299. 
 
 4. Stipulated: Insurers shall not be liable 
 if insured shall die in the known violation of 
 the law of any state. Held, suicide was not 
 within the exception ; and there being no. stip- 
 ulation exempting insurers from suicide, there 
 was no defense to the action (citing Fitch v. 
 American Popular Life Ins. 11 Alb. Law 
 Jour., 91 ; s. c, 2 N. Y. S C, 247). Patrick v. 
 Excelsior Life Ins. Co., 4 Hun. (N. Y.), 263. 
 
 5. "To be void in case he shall die by his 
 own hands." He committed suicide. Held, 
 to take the case out of the exception, it must 
 appear that the deceased was insane to such a 
 degree as to render him unable to determine 
 that the act would cause his death, or that he 
 committed it under the influence of an insane, 
 impulse which he could not resist. But it was 
 not sufficient that his moral sense was so im- 
 paired as to take from the act all of its crimi- 
 nal character ; his mind must have been so far 
 overthrown that it did not move him to th^ 
 act. Tlie words of the exception are different 
 to those in the case of Breasted v. Farmers 
 Loan and Trust Co., 4 Hill, 73; 8 N. Y.,299. 
 Van Zandt d. Mutual Benefit Life Ins. Co., 55 
 N. Y., 169. 
 
 6. Stipulated : " In case the insured shall 
 die by his own hand, or in consequence of a 
 duel, or the violation of any state, national or 
 provincial law, or by the hands of justice, this 
 policy shall be null, void and of no effect." 
 Held, it did not include suicide committed by 
 a person who was insane, for " die by his own 
 hand " does not embrace all kinds of death by 
 one's own hand. It would not include death 
 caused by the taking of poison, the person not 
 being aware that there was poison in the 
 draught; nor by discharging & loaded pistol, 
 
 I if the person was ignorant that it was loaded; 
 
1357 
 
 SUICIDE, OR " DEATH BY HIS OWN HA.ND. 
 
 1358 
 
 What is not. 
 
 nor by leaping from a window in the delirium 
 of fever; none of these would be his own 
 act Eastabrook v. Union Mutual Life Ins. Co., 
 54 Me., 224. 
 
 7. Stipulated : " Insurer shall not be liable 
 if the pei-son whose life is insured shall die 
 by his own hands." Held, it was intended to 
 exempt the company from liability caused by 
 the voluntary self destruction of insured; but 
 if the deceased was insane at the time the act 
 was committed, the destruction was not volun- 
 tary. PhiUipn «. Louisiana Equitable Life 
 Jns. Co., 26 La. An., 404. 
 
 8. Insurer stipulated against liability: "If 
 he shall die by suicide, or by his own hands." 
 HekL, the words "By his own hands "were 
 merely explanatory of that which preceded, 
 namely " suicide," both terms being synony- 
 mous (citing Hartman v. Keystone Ins. Co., 21 
 Penn., 466; Braestead v. Farmers Loan and 
 Trust Co., 4 Hill, 74;. Held, also^ if deceased 
 had not mind enough to understand the moral 
 nature of the act of self destruction ; if he 
 was incapable of distinguishing between right 
 and wrong, his death was not by suicide, 
 though he killed himself. Phadenliauer «. 
 Qermania Life Ins. Co., 7 Heiskell, 567. 
 
 9. Stipulated : " Not liable in case the in- 
 sured shall die by suicide, felonious or other- 
 wise, sane or insane." The deceased was found 
 dead in his bed in his room in a hotel in St. 
 Louis, witli a pistol shot wound directly over 
 his heart, a pistol lying by his side discharged. 
 Held, insurers were discharged if death was 
 caused by the voluntary and willful act of tlie 
 deceased, and he had at the time sufBcient pow- 
 ers of mind and reason to understand the 
 physical nature and consequences of such 
 act, and a purpose and intention to cause his 
 own death by that act; that the question 
 whether he was capable of understanding and 
 appreciating the moral nature and quality of 
 his purpose at the time was not relevant fur- 
 ther than as it might help to illustrate the ex- 
 tent of his capacity to understand the phys- 
 ical character of the act itself; that the stip- 
 ulation did not relieve the company if the 
 death was caused by accident, though brought 
 about by his own hands, or by some dan- 
 gerous and destructive instrument held in 
 them. Pierce v. Travelers Life Ins. Co., 34 
 Wis., 389. 
 
 10. The policy exempted the company from 
 liability in case insured should come to his I 
 
 death by his own hand. Plaintiff admitted 
 that insured came to his death by his own 
 hand; Held, the onus of proof, was upon 
 plaintiff to show that the act of self destruc- 
 tion was the consequence of insanity, and t-o 
 establish this it must appear that the mind of 
 the decedent was so far deranged as to have 
 made him incapable of using rational judg- 
 ment in regard to the act. If he was impelled 
 by an insane impulse which he was not able 
 to resist, or if his reasoning powers were so 
 far overthrown by his mental condition tliat 
 he could not exercise his reasoning facultiv 
 on the act, the company was liable ; but if he 
 formed the determination to take his own life, 
 because he preferred death to life, then he 
 died by his own hand, and the fact that he 
 was excited, or angry, or distressed in mind 
 when he formed the determination to take his 
 own life was not evidence of an insane im- 
 pulse. U. S. Cir. Ct, N. D. of 111. (per Hop- 
 kins, J.) Jarvis Connecticut Mutual Life Jns. 
 Co., 8 Chi. Leg. News, 227. 
 
 11. Stipulated: "If the said person whose 
 life is insured shall die by his own hand, by 
 delirium tremens, or by the use of opium, or 
 in consequence of a duel, the policy shall be 
 null and void." Held, the object of the policy 
 was to insure against involuntary death not 
 the fault of insured; that inevitable suicide ac- 
 cidental or otherwise, against the free will of 
 a rational mind was within the category of 
 natural death from ordinary causes, because 
 mental Insanity is disease; the policy insured 
 against death by disease of any sort which 
 ordinary prudence could not avoid ; death by 
 insanity is death by disease; death by opium 
 meant not accidental or involuntary, but the 
 rational and voluntary use of opium; death 
 by delirium tremens means death by voluntary 
 and habitual drunkenness; death by duelling 
 is a voluntary act which might and ought to 
 be avoided, and so, for the same reason, death 
 by his own hand means death premeditated by 
 a sound mind perpetrated by a free will, for 
 all the words of exception must be taken ^us- 
 dem generis (citing Braested o. Farmers Loan 
 and Trust Co., 4 Hill, 74; Eastabrook s. Union 
 Mutual Life Ins. Co., 54 Me., 225). If a par- 
 oxysm of moral insanity caused the deaths the 
 suicidal act was involuntary and at the instant 
 unavoidable, even though the suicide knew its 
 illegality and all its consequences, for such 
 knowledge is consistent with that form of in- 
 
 679 
 
1359 
 
 SUICIDE, OR "DEATH BY HIS OWN HAND." 
 
 1360 
 
 What is not evidence of — What is — Onus probandi — Presumptions 
 
 sanity. St. Louis Mutual Life Ins. Oo.v.Oravei, 
 
 6 Bush, 268. 
 
 1 2. Life policy, death by suicide, etc., was 
 not excepted. Held, no defense to the action, 
 if the act of self destruction was committed 
 while he was temporarily insane. Horn v. An- 
 glo Australian Life Ins. Co., 30 L. J. Cli., 511 ; 
 
 7 Jur. (N. 8.), 673; 9 W. R., 359; 4 L. T. (N. 
 S.), 142. 
 
 II. What is not evidence of. 
 
 On the life of the husband. Stipulated: 
 " Insurer shall not be liable if insured shall 
 die by his hands." He retired to his room at 
 bed time, and about one o'clock at night the 
 report of a pistol was heard. On entering the 
 room he was found in a reclining posture on 
 the sofa, and a pistol lying on the floor near 
 by. The ball had entered his mouth. Held, 
 the evidence was not sufficient to establish the 
 fact that he died by his own hands ; that as it 
 was circumstantial only, it proved nothing, 
 because it did not exclude every other reason- 
 able hypothesis. Phillips v. Louisiana Equi- 
 table Life Ins. Co., 26 La. An., 404. 
 
 III. "What is. 
 
 1. Stipulated: " To be void in case the per- 
 son insured shall die by his own hand." He 
 cut his throat with a razor. Held, the policy 
 was void ; and that he was impelled to the act 
 by insanity was irrelevant. Dean v. American 
 Mutual Life Ins. Co., 4 Allen, 96. 
 
 2. Stipulated : " To be void, if the person 
 whose life is insured shall die by suicide." 
 Held, plaintiff could not be permitted to show 
 thai at the time he killed himself he was in- 
 sane, and was impelled to the act by insanity. 
 Cooper V. Massachusetts Life Ins. Co., 102 
 Mass., 227. 
 
 3. Stipulated: "In case insured shall die 
 by his own hands, or by the hands of justice, 
 or in consequence of a duel, it shall be void. 
 Insured threw himself into the Thames and 
 was drowned. The jury found specially that 
 he voluntarily threw himself from the bridge 
 with the intention of destroying his life, but 
 at the time of committing the act he was not 
 capable of judging between right .and wrong. 
 Held, the insurer was released. Borradaile v. 
 Hunter, 5 M. & G., 639; 12 L. J. (N. 8.) C. P., 
 225 ; 7 Jur., 443 ; 5 Scott N. B, 418. 
 
 4. Stipulated: " That every policy effected 
 
 by a person on his or her own life shall be 
 void if such person shall commit suicide, or 
 die by duelling or the hands of justice." The 
 insured died from the effects of sulphuric 
 acid voluntarily taken for the purpose of pro- 
 ducing death; but there was evidence to shoiy 
 that he was of unsound mind at that time. 
 Held, the insurers were discharged. This case 
 proceeded no further. Insurers returned the 
 premium with interest at four per cent., which 
 amounted to £967. 9s. 7d., and paid their own 
 costs. The sum named in the policy was 
 £999. Clift t). Sehwabe, 3 C. B., 487; s. c, 2 
 C. & K., 134; 17 L. J. C. P., 2. 
 
 5. Defendant pleaded death by suicide, 
 which was excepted in the policy ; and put in 
 plaintiff's deposition made before the coroner, 
 in which she stated : " I heard screams from 
 the children, ran, and found him hanging by 
 the legs over the rail of the landing. In the 
 evening he was walking about the bed room, 
 and I saw him in the act of falling out of an 
 open window." The jury found the issue for 
 the defendant. Held, the court would not dis- 
 turb the finding. Stormont v. Waterloo Life 
 and Casualty Ass. Co., 1 F. & F., 22. 
 
 IT. Onus peobandi. 
 
 Stipulated: " Insurers shall not be liable if 
 the person whose life is insured shall die by 
 his own hand." Held, insurers were bound 1o 
 prove that he was the willful destroyer of his 
 own life ; and that being proven, the burden 
 was cast upon plaintiff to prove that he was 
 insane whea he committed the act, for the 
 presumption is, that he was sane; that in 
 determining the question, whether he was 
 or was not sane, the jury must consider the 
 state of his mind, and to what extent it affected 
 his will; that if he intended to destroy his life, 
 and comprehended the physical nature and 
 consequences of his act, the insurers were not 
 liable. Nimick «. Mutual Benefit Life Ins. Co., 
 3 Brewster, 502. 
 
 V. Pkesumptions. 
 
 1. The court iusti-ucted the jury, that they 
 must presume that the deceased, when he 
 took his life, was not in a sound state of 
 mind, and that the burden was upon the 
 defendant to remove that presumption. Heid. 
 error, for every man is presumed sane until 
 the contrary appears. Coffey v. Some Life Im. 
 
1361 
 
 SURVEY — TAXATION. 
 
 1362 
 
 Miscellaneous. 
 
 Co., 3 J. & Sp. (N.T.), 314; s. c, 44 How. Pr., 
 461 ; Weed v. Mutual Benefit Life Ins. Co., 3 J. 
 &Sp.(N.Y.), 386. 
 
 I 2. The death was the result of accidental 
 iixjuries or suicide. Held, the presumption of 
 law was against the lattei'. Mallorj/v. Travelers 
 /n«. Co.,47N.Y., 52. 
 
 VI. CONSTKUCTIOU. 
 
 1. Stipulated : " To be void in case insured 
 shall die by his own hand or act voluntarily 
 or otherwise." Insured was found at five 
 o'clock in the morning, frozen to death, under 
 a tree in the open grounds adjacent to the 
 Smithsonian Institute at W^hington. The 
 court instructed, that in order to sustain the 
 defendant's case tlie jury must believe that the 
 insured iutentioaally lay down where he was 
 found dead for the purpose of ending- his life. 
 Held, the word "otherwise" could not be 
 construed to embrace every species of self de- 
 struction whether intentionally or accident- 
 ally caused by the hand of the insured. 
 Hence the instruction was correct. Jacobs v. 
 National Life Ins. Co., 1 MacArthur, 633. 
 
 2. The defendant was to be exempt from 
 claim if the person insured should become so 
 far intemperate as to impair his health, or if 
 he should commit suicide. Held, if the in- 
 sanity which produced the act of self destruc- 
 tion was caused by intemperance, the defend- 
 ant was not liable. N. D. 111., per Hopkins, 
 J. Jamis V. Connecticut Mutual Life Ins. Co., 
 8 Chi. Leg. News, 227. 
 
 3. Stipulated: "To be void if the party die 
 by his own hand, or in consequence of a duel. 
 HM, swallowing arsenic, which produced 
 death, was within the exception. In constru- 
 ing it, the words "die by his own hand" 
 must be disconnected from those which fol- 
 low. Hartman v. Keystone Ins. Co., 21 Penn. 
 St., 466. 
 
 4. Stipulated : " In case of the death of the 
 said insured by his or her own act or inten- 
 tion, whether sane or insane, the company 
 shall not be liable for the sum insured." 
 Plea : that death mentioned in the declaration 
 was caused by his own act and intention by 
 a pistol shot fired by the said C. into the face 
 of him the said C. with the intention and for 
 the purpose of then and there causing his 
 own death. Replication: That when the 
 said C. came to his death he was mentally in- 
 
 sane, and in consequence and by reason of 
 such mental insanity, was wholly incapable 
 of exercising any intention in reference to the 
 act which caused his death ; that said act was 
 wholly the result of his mental insanity; that 
 he was impelled thereto without any volition 
 of his own by an insane impulse which his 
 mental and physical faculties were unable to 
 resist; that he was wholly unable from his 
 mental condition to comprehend the natural 
 character, effect and consequence of the 
 act which resulted in his death. Bemurrer to 
 replication. Held, the contract exempted the 
 defendant from liability, because the act of the 
 insured resulted in his death though commit- 
 ted in a state of insanity. The replication ad- 
 mits that C. came to his death by his own act 
 when in a state of insanity; but claims that 
 because his insanity was so extreme and com- 
 plete, overthrowing his moral and mental fac- 
 culties, the defendant is not exempt. The 
 degree of insanity was immaterial. It was 
 sufficient, as admitted by the pleadings, that 
 C. took his own life. Per Blodgett, J., N. D. 
 of 111. Chapman v. Repiiblic Life Ins. Co., 7 
 Chi.Leg. News, 186. 
 
 SURVEY. 
 
 (See COSDBMKED FOR Beisg Unsoxtni).) 
 
 SUSPENSION OF POLICY. 
 
 (See PoLioT, XVI.) 
 
 TAXATION. 
 
 1. The different sources of income returned 
 by the company had been received in coined 
 money, the currency of California, and the 
 amounts were returned to the tax officer in 
 that form of currency. The aggregate tax, 
 under the statute, upon this sum of coin, was 
 |5,786. The assessor, against the protest of 
 the company, added tlie difference betweea 
 legal fender currency and coined money, and 
 fixed the tax at $7,365 legal tender. The 
 company refused to pay it, but tendered the 
 
 681 
 
1363 
 
 .TELEGRAPH CABLE — TERRITORIAL LIMITS. 
 
 1364 
 
 MiscellaDieous. 
 
 smaller sum in legal tender notes. Held, the 
 company was bound to make Its returns in 
 legal tender currency, and to pay tlie tax in 
 the same medium; that the company's propo- 
 sition to make returns in coin and to paj' in 
 legal tender would subvert the plainest prin- 
 ciples of reason and justice. Pacific Ins. Go. 
 0. «oaZe, 7Wall.,433. 
 
 2. A state has a right to discriminate be- 
 tween her own domestic corporations and 
 those of other states who desire to transact bu- 
 siness within her jurisdiction (citing Paul ®. 
 Virginia, 8 Wall., 168; Bank of Augusta s. 
 Earl, 13 Pet., 519). Ducat d. Gity of Chicago, 
 10 Wall., 410. 
 
 3. A joint stock association is a corporation, 
 notwithstanding certain acts of parliament de^ 
 clare that it is not, provided it has a distinc- 
 tive artificial name, by which it can make 
 contracts, statutory authority to sue and be 
 sued in the name of its oflSccrs, a statutory 
 recognition of the association as an entity, 
 distinct from its members, allowing them to 
 sue it and be sued by it, and a provision for 
 its perpetuity by transfer of the shares, so as 
 to secure succession of membership ; and, 
 hfilA, such a corporation, whether organized 
 under the laws of a state of the union or of a 
 foreign government, is subject to the statute 
 which imposes a. tax upon each flre, marine, 
 and fire and marine insurance company, in- 
 corporated or associated under the laws of 
 any government other than one of the United 
 Stales. Linerpool Ins. Co. v. State of Massa- 
 chusetts, 10 Wall., 566. 
 
 4. Tke revenue act of the state of Louisiana, 
 of March 16, 1870, provides that no insurance 
 company whose license tax shall be $1,000, 
 shall be liable to any assessment throughout 
 the state other than that imposed by this stat- 
 ute. The city of New Orleans was empow- 
 ered by law to levy a license tax upon trade, 
 professions and callings. Held, the act of 
 March 16, 1870, applied only to taxes levied 
 by the state. It had no bearing upon the 
 power conferred upon the city of New Orleans 
 to levy a tax upon an insurance company cre- 
 ated by a foreign state. Insuranee Co. v. City 
 ofNea Orleans, 1 Woods, 85. 
 
 5. These companies had a principal place 
 of business, each in the city of New Orleans, 
 vrhere policies of insurance were issued, and 
 payments and adjustments were made; but 
 for the accommodation of persons who resided I 
 
 682 
 
 at places remote from the principal places of 
 business, tliey had offices for the transaction 
 of some of tlieir business. Held, they were 
 liable for one license only; that it was a 
 tax on the occupation, and not on the business 
 establishment, and must therefore be uniform. 
 Merchants Mut. Ins. Co. v. BUtndin, 24 La. 
 An., 112. 
 
 6. The 6th section of the charter of Fire- 
 men's Benevolent Association required "every 
 person who shall, in the city of Chicago, act 
 as agent for or on behalf of any individual 
 of association of individuals not incorpo- 
 rated by the laws of the state of Illinois, 
 for tlie purjjose of making insurances, shall 
 pay to the treasurer of the Firemen's Be- 
 nevolent Association two per cent, of the 
 premiums received by or agreed to be paid to 
 such agent upon insurances made. Held, the 
 legislature had a right to consider the associa- 
 tion as a public charity; the bill was consti- 
 tutional, and the demurrer to the action 
 overrruled. Firemen's Benevolent As^n s; 
 Lounsbury, 21 Ills., 511. 
 
 7. Sec. 30 of statute, March 10, 1869, enti- 
 tled an act to incorporate and to govern fire, 
 marine and inland navigation insurance com- 
 panies, repealed see. 5 of the act of February 
 18, 1863, and thereby took away from the city 
 of Chicago the right to sue for the tax men- 
 tioned in that statute. Van Inwagen v. City of 
 Chicago, 61 111., 31. 
 
 TELEGRAPH CABLE. 
 
 (See Atlahtio Cabli.^ 
 
 TENDER. 
 
 An offer of a certain sum in full of all de- 
 mands is not a legal tender. Strong v. Harney 
 3 Bing., 304; 4 L. J. U. P., 57; 11 Moore, 73. 
 
 TERRITORIAL LIMITS. 
 
 L When kksidino out of is a defense. 
 
 !!• 18 NOT A DEFENSE. 
 
1365 
 
 TERRITORIAL LIMITS. 
 
 1366 
 
 When residing out of is a defense — When residing out of is not a defense. 
 
 I. When eesiding out of is a defense. 
 
 1. "To be void if the insured departs be- 
 yond the limits of Europe;" but by indorse- 
 ment he was permitted to travel and reside in 
 any part of the United States south of 36° 81' 
 north latitude, from Kovember 1st to July 1st. 
 The defendants' agents annexed to the premi- 
 um receipt this permission: "It is understood 
 and agreed that insured has permission to 
 proceed in a first class vessel to Kew Orleans, 
 on and after this date." He sailed October 
 34, ISe-"}, and continued to reside in New Or- 
 leans till August 23, 1864. He arrived in New 
 York August 81st. Held, the insurers were 
 released. Bairmford v. Boyal Ins- Co., IJ. & 
 Sp., 453; affirmed, 53 N. Y., 636. 
 
 2. Policy on the life of person. Stipulated : 
 " Insured shall not, without consent of insur- 
 ers, visit those parts of the United States south 
 of the southern boundaries of Virginia and 
 Kentucky, between July 1st and November 
 1st, nor pass beyond the settled limits of the 
 United States, nor enter into military or naval 
 service." Permission was given "to make 
 one voyage out and home to California in a 
 first rate vessel round Cape Horn or by Vera 
 Cruz." He went to California and was taken 
 sick at San Francisco. He left there the fol- 
 lowing month for his home in New Bedford, 
 returning byway of Panama and Chagres, but 
 not by way of Vera Cruz. He reached home 
 December, 1850, where he died. Held, the 
 policy was void ; that the permission was care- 
 fully defined and restricted ; that the insurers 
 had the right to fix their own terms within 
 such limitations as they deemed expedient, 
 and these having been broken, insurers were 
 discharged. Hathaway v. Trenton Mutual Life 
 and Fire Ing. Co., 11 Cush., 448. 
 
 3. By the terms of the policy, residence of 
 the life insured (the Episcopal bishop of 
 Rhode Island) was limited to the states of New 
 York, New Jersey, Pennsylvania and Ohio, 
 with the privilege to travel in any other settled 
 portions of the United States, British Prov- 
 inces of Canada, New Brunswick and Nova 
 Scotia, upon conditions that if he should, 
 without the consent of the company, go into 
 any other portion of the United States beyond 
 the limits of constant residence permitted to 
 him, and be there for more than five days be- 
 tween July 1st and October 15th, then the 
 policy should be void. Diuing the absence 
 
 of the bishop of Maryland in Europe, the per- 
 son insured went into the state of Maryland to 
 perform the duties of his office, and there re- 
 mained for about ton days in the performance 
 of those duties without the company's con- 
 sent. During his stay he was attacked with 
 apoplexy and died. Held, insurers were dis- 
 charged. Nightingale v. State Mutual Life 
 Ins. Co., 5 R. L, 38. 
 
 II. Whek eesiding outside of, is not 
 
 A DEFENSE. 
 
 1. Stipulated: "If the person insured shall 
 pass beyond certain limits mentioned, the pol- 
 icy shall be void." It was necessary for him 
 to go to Cuba, a place outside of the limits 
 named, and the insurers indorsed the follow- 
 ing : " Permission is hereby given to J. M. P. 
 to proceed to Cuba, and return before April 1, 
 1871. He is to take his own risk from death 
 by epidemics." He died of yellow fever, in 
 the city of Havana, in the month of Febru- 
 ary, 1871 ; but the referee found specially that 
 "yellow fever did not prevail at that time, in 
 the form or condition .or to the extent of an 
 epidemic." Held, the insurers were liable. 
 Pohalski u. Mutual Life Ins. Co., 45 How. Pr., 
 504; s. c.,4 J. & Sp., 334; affirmed, 56 N. Y., 
 640. 
 
 2. Stipulated : " To be void in case tlie per- 
 son insured shall pass beyond the settled lim- 
 its of the United States, except the settled 
 limits of the British Provinces of Canada, or 
 visit parts of the United States lying south of 
 the southern boundary of Virginia and Ken- 
 tucky, during certain periods of the year in 
 the policy mentioned. Insured started upon 
 a journey to California, over the plains, from 
 Fort Independence, in the direction of Great 
 Salt Lake, and died of cholera at the upper 
 crossing of the South Fork of the Platte river, 
 June 31, 1850. Held, he was not within pro- 
 hibited territory. (Comstock, Davis and 
 Clerke, JJ., dissenting.) Caslerv. Connecticut 
 Mutual Life Ins. Co., 32 N. Y., 437. 
 
 3. Stipulated: " The insured shall not, with- 
 out the consent of the insurers indorsed on 
 the policy, visit those parts of the United 
 States which lie south of the southern bound- 
 aries of Virginia and Kentucky." He had 
 permission to go to Florida, conditioned that 
 he. must be north of the south boundary of 
 Virginia by July 10, 1854. He was at Appa- 
 
 683 
 
1367 
 
 THEFT AND ROBBERY. 
 
 1368 
 
 "When inBureis are liable for a loss by. 
 
 lacUicola, Florida, June 11th, was taken ill 
 and became unable to travel or to leave 
 that place, about six days journey from 
 the south boundary of Virginia. He died 
 there July 20th. Eeid, insurers were liable, 
 because his failure to^be north of the limit 
 named wascau.sed solely by that illness which 
 resulted in his death. Baldwin e. JTew York 
 Life Ins. and Trust Co., 3 Bos., 530. 
 
 4. Insured had permission to pass by sea 
 on first class decked vessels. He took passage 
 in the steerage. Held, no defense to the action. 
 Taylor v. ^tna Life Ins. Co., 18 Gray, 434. 
 
 5. The company's agent authorized to re- 
 ceive the premium had notice that the person 
 insured resided within prohibited territory; 
 and after that notice he received annual pre- 
 miums and procured a permit for the person 
 insured to reside within the prohibited terri- 
 tory. Held, a waiver of the forfeiture. Walsh 
 V. ^tna Life Ins. Co., 30 Iowa, 133. 
 
 6. A. insured his life and assigned the pol- 
 icy to a creditor. The policy stipulated that 
 it should be void and the premiums forfeited 
 to the company if the insured should go be- 
 yond the limits of Europe, without the direct- 
 ors' license. He went into Canada without 
 their license, remained some time, and died 
 there. It was proved that the local agents of 
 the company through whom the insurance 
 was effected received all the premiums that 
 became due after they knew that insui%d was 
 residing in Canada; that they stated to the 
 creditor that the breach of the condition in 
 that respect would not invalidate the policy. 
 Held, it was not necessary to determine 
 whether the company had notice of the in- 
 sured's residence beyond the prescribed limits ; 
 if the agents were authorized to receive the 
 premiums, it was their duty, and not the duty 
 of the plaintiff, to communicate to the com- 
 pany the circumstances under which the pre- 
 miums had been paid and received. Wing v. 
 Harcetf, 23 L. J. Ch., 511 ; b. c, 5 De G., M. & 
 G., 265; 18 Jur., 394. 
 
 7. Stipulated : " Insured shall not go beyond 
 the limits of Europe without leave of the di- 
 rectors." Indorsed : " The life iflsured under 
 this policy being about to proceed to and re- 
 side at Belize, in the state of Honduras, and 
 an extra premium of twenty guineas having 
 been paid for such residence for one j'ear, 
 permission is hereby granted to the life in- 
 sored to proceed to and reside at Belize afore- 
 
 684 
 
 said, and for so long thereafter as the extra 
 premium shall from time to time be paid, 
 along with the premium payable on this pol- 
 icy as within expressed." The policy and in- 
 dorsement were of the same date, June 23, 
 1853. Insured did not proceed to Belize until 
 June 9, 1856. He arrived there the end of 
 August, and died there August 13th following. 
 At the time the additional premium was paid 
 and consent given to reside at Belize, both 
 parties supposed he would immediately pro- 
 ceed thither. Held, the rights of the parties 
 must be governed by the terms of the permis- 
 sion, and that is that tlie assured had permis- 
 sion to proceed to and reside at Belize afore- 
 said, and for the time aforesaid ; that reading 
 these in connection with the preceding recital, 
 " Being about to proceed to, and reside at Be- 
 lize," the effect of the whole was that he had 
 twelve months' residence at Belize independ- 
 ently of the time occupied in the voyage; 
 that there w^as nothing in the permission to 
 define the period from which the twelve 
 months' residence was to begin; that the lan- 
 guage being the defendautb', it must be taken 
 most strongly against them, if there be any 
 ambiguity in it, hence the residence for which 
 permission was granted might begin at any 
 time. Notman e. Anchor Asa. Co., 4 C. B. (N. 
 S.), 476; 27 L.J. C. P., 275; 4 Jur. (N. S.), 
 712. 
 
 THEFT AND ROBBERY. 
 
 I. When insurebs are liable for a 
 
 LOSS BY. 
 II, NOT LIABLE FOB 
 
 LOSS BY. 
 
 I. "When insueees aee liable foe a 
 
 LOSS BY. 
 
 1 , On cargo. Included risk of the seas, pi- 
 rates, robbers, thieves and barratry of the mas- 
 ter and mariner's. It was transhipped at New 
 Orleans, put on board steamboats for Tuscum- 
 bia. At the latter place it appeared that some 
 of tho boxes had been broken open and again 
 closed, and goods to tho value of $1,176.50 
 were missing. Tliere was no proof as to the 
 manner, the persons by whom, the time 
 when or the place they were taken. Hdd, 
 
1369 
 
 THEFT AND ROBBERY. 
 
 1370 
 
 When insurers are not liable for loss by. 
 
 the insurer was liable. American Ins. Go. ■». 
 Bryan, 26 Wend., 563 : s. c. affirmed, 1 Hill, 35. 
 
 2. The value of the goods saved amounted 
 to $9,488.66. When the store was closed the 
 evening previous, the value of the stock 
 amounted to $13,948.01. The Are was discov- 
 ered about midnight, and before it reached 
 the stock in question it was removed across 
 the street, piled up on flie sidewalk by persons 
 acting in behalf of insurance companies gen- 
 erally, who were stationed in charge of 
 them; was subsequently removed to an- 
 other building one hundred feet distant, 
 locked up, and the key retained by one of the 
 Insurance agents until it was delivered the 
 following day to tlie insured. Several hun- 
 dred persons assisted in removing the goods, 
 and there was a great deal of confusion, and 
 much opportunity for some of the goods to 
 have been stolen. Held, it was immaterial 
 whether the goods were burned, or abstracted, 
 or stolen while they were being removed out 
 of the reach of the fire, for where existing cir- 
 cumstanees, by their continuance, would cre- 
 ate a total loss, the loss continues total, al- 
 though those circumstances may have wholly 
 changed, if the property is not beneficially re- 
 stored to the insured ; that if the goods were 
 removed from a building actually on fire, and 
 they would have been destroyed by that fire 
 had they remained in it, the loss was a natural 
 consequence of the peril insured against (cit- 
 ing Bondrett v. Hentigg, Holt N. P., 149; 
 Hahn v. Corbett, 2 Bing., 205; Dean v. Horn- 
 ley, 3 El. & Bl., 180.) TiUon v. Hamilton Fire 
 Ing. Co., 14 How. Pr., 863 ; s. c, 1 Bos., 367. 
 
 3. The premises were discovered on fire, 
 and the goods were quickly removed, but they 
 were damaged seriously by water, and to some 
 extent by fire, and many of them were 
 stolen while being removed. Held, insur- 
 ers were liable for the goods stolen. Inde- 
 pendent Mut. Ins. Co. v. Agnew, 34 Penn. St., 96 ; 
 s. c, 3 Phila., 193. 
 
 4. Some of the goods were stolen. At the 
 time the fire occurred, insured removed them 
 for the purpose of protecting them. Held, 
 when goods are damaged ex necessitate to pre. 
 serve them, the insurer is liable for the dam- 
 age, and there is no good reason why he should 
 not be liable for an actual loss by theft, when 
 it is the consequence of an effort to save (citing 
 Case V. Hartford Fire Ins. Co., 13 HI., 676; 
 City Fire Ins. Co. v. Corlus, 21 Wend., 367; 
 
 Tilton V. Hamilton Fire Ins. Co., 1 Bos., 867; 
 Independent Ins. Co. v. Agnew, 34 Penn. St. 
 96). WitJierell v. Maine Ins. Co., 49 Mc., 200. 
 
 5. Water was tlirown upon the premises in- 
 sured ; some of it fell upon the goods insured, 
 and great!}' soiled them, and others were dam- 
 aged by removal from the reach of the fire. 
 Some were stolen. Held, insurers were liable 
 for the damages. Whitehurst t. Fayetteville 
 Mut. Ins. Co., 6 Jones' Law, 852. 
 
 6. Action for loss by fire ; some of the goods 
 were stolen at the fire. Held, a loss within 
 the policy, if they were stolen on account of 
 the fire. Nemmark v. Liverpool and London 
 Ins. Co., 30 Mo., 160. 
 
 7. Stipulated : " This company will not be 
 liable for any loss or damage to goods con- 
 tained in the show windows, when the loss or 
 damage is caused by the light in the window, 
 nor shall the company be liable for loss by 
 theft. Held, if the removal of the goods was 
 authorized by the danger of fire, and some of 
 them were stolen in course of removal, the in- 
 surer was liable, the exception in the polici' 
 being limited to theft from the show windows. 
 Leiber v. Liverpool, London and Globe Ins. Co., 6 
 Bush, 639. 
 
 II. When insueeks aee not liable 
 
 FOE A LOSS BY. 
 
 1. Insurers assumedrisk of pirates, assailing 
 thieves, etc. The vessel beingwrecked, the car- 
 go was saved on rafts; the United States con- 
 sul seized it and kept the proceeds. Held, 
 not within the risk assumed, for there was no 
 plunder or robbery by force. Paddock ». 
 Commereial Ins. Co., 2 Allen, 93. 
 
 2. The roof of the building was very much 
 burned, the openings and corners were very 
 badly scorched, and the fire engines played 
 on the building. While the goods were be- 
 ing removed some were stolen. The policy 
 expressly excluded liability for goods stolen 
 while being removed from a building dam- 
 aged by fire. Held, good faith requires both 
 parties to do all in their power to make the 
 loss as small as possible, and as there was ex- 
 press exemption for the cause of action set forth, 
 the onus was upon the insured to sliow that the 
 defendant did some act to incur liability for 
 the loss. Fernandez v. Merchants Mut. Ins. 
 Co., 17 La. An., 131. 
 
 3. Policy provided, " This company shall 
 
 685 
 
1371 
 
 TIME. 
 
 1372 
 
 Computation of. 
 
 not be liable to make good any loss by theft." 
 Three sides of the building, containing the 
 goods, were surrounded by burning houses, 
 and the building itself was on fire. Insured 
 endeavored to save the goods by removal, and 
 did remove them, but while so doing there 
 was a loss by pillage, waste, or otherwise, to 
 the amount of $4,970. Held, the insurers were 
 not liable for it. Webb v. Protection Ins. Co., 
 14 Mo., 3. 
 
 4. Stipulated: "The company shall not 
 be answerable for loss or damage by theft at 
 or after any fire. Held, insurers were not li- 
 able for goods stolen during the fire and 
 while they were being removed. Liverpool, 
 London, and Globe Int. Co. v. GreighUm, 51 
 Ga., 95. 
 
 5. " Against the dangers of rivers, seas, ene- 
 mies, pirates, rovers, thieves," etc. The dec- 
 laration averred a loss for "that they were 
 stolen by thieves from on board the boat." 
 Held, the theft insured against was that 
 accompanied by violence, and not simple 
 larceny (citing 3 Kent's Com., 303; Phillips 
 on Ins., p. 358). Marshall v. Nashville Marine 
 and Fire Ins. Co., 1 Humph., 99. 
 
 TIME. 
 
 Computation of. 
 
 1. On coflfee, " to be shipped between Feb- 
 ruary 1st and July 15, 1840." Coflfee was 
 shipped on July 15, 1840, and lost by perils of 
 the sea. Held, it was not within the policy. 
 Atkins V. Boylston Fire and Marine Ins. Co., 5 
 Met., 439. 
 
 2. For the ijeriod of twelve months from: 
 noon October 5, 1866, terminating noon Octo- 
 ber 5, 1867, against loss of life, payable within 
 ninety days after sufficient proof that the in- 
 sured, at any time after the date hereof and 
 before the expiration of this policy, shall have 
 sustained personal injury caused by any acci- 
 dent within the meaning' of this policy, and 
 such injuries shall occasion death within 
 ninety days from the happening thereof. In- 
 sured met with an accident December 11, 
 1866, from which he died at 9 A. M., March 
 13, 1867. Held, the time was to be computed 
 from the time the accident occurred, and as 
 death did not happen within ninety days from 
 
 086 
 
 it, no recovery could be had. Perry o. Provi- 
 dent Life Int. Co., 99 Mass., 162. 
 
 3. Stipulated: "To pay $10 per week for a 
 period not exceeding altogether twenty-sis 
 weeks for any single accident; also to pay 
 $3,000 within ninety days after proof that the 
 assured, at any lime before the expiratioa of 
 this policy, shall have sustained personal in- 
 jury, and such injury shall occasion death 
 within ninety days from the happening there- 
 of. Insured met with an accident December 
 11, 1866, died March 12, 1867. Held, insurer 
 was liable for thirteen weeks at $10 per week, 
 and nothing more. Perry v. Provident Life 
 Ins. Co., 103 Mass., 242. 
 
 4. The policy was efiected December 17, 
 1845, for one year, commencing and ending 
 at 12 o'clock noon. The loss took place De- 
 cember 17, 1846, in the forenoon. She was 
 wrecked between 400 and 500 miles from Ber- 
 muda. The master and crew remained upon 
 her a day or two before they were taken oflF. 
 Held, the meridian of the place where the con- 
 tract was made must govern tlie rights of the 
 parties. Walker v. Protection Ins. Co., 29 Me., 
 317. 
 
 5. Stipulated : " Insured shall pay into tlie 
 treasury one dollar and twenty-five cents upon 
 the death of any member of the association, 
 within thirty days afier date of said death, 
 being notified thereof by publication in one 
 daily newspaper, published in New Orleans, 
 in English, German and French, for five con- 
 secutive days. Held, the- last day of publica- 
 tion, and not the first, was the period from 
 which the thirty days commenced to run. 
 Wetmore v Mutual Aid and Beneoolent Life 
 Ins. Ass., 33 La. An., 770. 
 
 6. "On goods from the loading thereof till 
 safely landed at Savannah, if done in forty 
 days." The vessel sustained injury before the 
 goods were laden, and it became necessary to 
 detain them until another was ready to take 
 them. Insurer consented to transfer the risk 
 from that vessel to another, and to allow forty 
 days for the trip ; which consent was obtained 
 twenty days after the policy was made, and, 
 thirty days after the transfer, a loss occurred. 
 Held, the delay caused by changing craft and 
 transhipping were not to be counted in the 
 forty days. Plant d. Eufavla Home Ins. Co., 41 
 Ga., 130. 
 
 7. On the life of B., for one year, " from the 
 day of the date; dated September 8, 1697." 
 
1373 
 
 TITLE. 
 
 1374 
 
 What must be disclosed — What need not be disclosed. 
 
 R died at one o'clock A. M., September 8, 
 1698. Held, "ttom the day of the date " ex- 
 eludes the day ; but " from the date " includes 
 it. As R. died after the commencement and be- 
 fore the end of the last day, the insurer was 
 liable, because the insurance was for a year, 
 and the year was not complete until the last 
 day was over. Sir Robert Howard's Case, 
 Holt K. B., 195 ; see s. c. Anon., 1 Ld. Raym., 
 480. 
 
 8. " On ship, from L. to any port or ports 
 in the North or South Pacific Oceans, in any 
 order, backwards or forwards, and during 
 thirty days stay in her last port of discharge." 
 She arrived at 7 P. M., May 25th, where she 
 remained until 3 45 A. M., June 24th, when 
 she was driven ashore and lost Held, the 
 thirty days did not begin to run until the 
 expiration of twenty-four hours after her arri- 
 val; hence she was protected by the policy. 
 Mercantile Marine Ine. Go. v. Titherington, 5 
 B. & S., 765; 11 Jur. (N. S.), 162; 34 L. J. Q. 
 B., 11 ; 13 W. R, 141 ; 11 L. T. (N. S.), 340. 
 
 9. For six months from February 14, 1868, 
 to August 14, 1868, and for so long after as in- 
 sured shall pay and the defendants shall ac- 
 cept the premium payable therefor. A fire 
 occurred August 14, 1868. Held, the whole of 
 that day was protected ; hence insurers were 
 liable. Isaacs c. Rogid Ins. Co., 5 L. R. Ex., 
 296; 39 L. J. Ex., 189; 18 W. R, 982; 22 L. T. 
 (N. S.), 681. 
 
 TITLE. 
 
 I. What must be disclosed. 
 
 II. NEED KOT BE DISCLOSED. 
 
 III. IS A WARKAUTT OP. 
 
 IV. 18 SOT A WARRANTY OF. 
 V. SATISFIES THE WARRANTY. 
 
 VI. DOES NOT SATISFY THE WAR- 
 
 RANTY. 
 VII. Of CHANGE OF TITLE, INTEREST OR 
 FOS8ESSION. 
 
 (a) What U not. 
 
 (b) M. 
 VUL GSNKRALLT. 
 
 I. What must be disclosed. 
 
 Act of incorporation made part of the con- 
 tract, provided : " If insured have a less estate 
 
 than fee simple, or if the premises be incum- 
 bered, the policy shall be void, unless the true 
 title of insured and the incumbrances on the 
 premises be expressed thereon." HeU, if the 
 insured had an estate less than fee unincum- 
 bered, it must be disclosed ; that an omission 
 to set forth an estate less than fee unincum- 
 bered was a warranty that it was not less 
 than fee unincumbered. Illinois Mutual 
 Fire Ins. Co. v. Marseilles Manufacturing Co., 
 6 111., 236. 
 
 II. What need hot be disclosed. 
 
 1. If there be no inquiry by insurer as to 
 title of insured, and insured in his applica- 
 tion designate the property as "his own," 
 this is no misrepresentation of the title, 
 though the fact be that the property is under 
 mortgage and his equity of redemption has 
 been taken but not sold. Stro7tgv. Manufac- 
 turers Ins. Co., 10 Pick., 40. 
 
 2. Stipulated : " If the interest in the prop- 
 erty to be insured be a leasehold or other in- 
 terest not absolute, it must be so represented 
 to the company, and expressed in the policy, 
 otherwise the insurance shall be void." The 
 buildings insured were the properly of in- 
 sured, but upon leased land. Insured had tlie 
 right to remove them at 'the end of the term. 
 Held, he was not bounu to disclose the extent 
 of his interest, since it was not a leasehold in- 
 terest Hope Mutual Ins. Go. v. Brolaskey, 35 
 Penn. St., 282. 
 
 3. A failure to disclose the exact state of the 
 title of the insured does not avoid the policy, 
 unless there is an inquiry in respect to it, or 
 tlie fact is material to the risk (Morrison v. 
 Tennessee Marine and Fire Ins. Co., 18 Mo., 
 262), and it is not necessary to disclose that 
 there are liens for taxes and judgments. 
 Ibid. 
 
 4. Stipulated : " If the interest in the prop, 
 erty to be insured be a leasehold, trustee, 
 mortgagee, or reversionary interest, or other 
 interest not absolute, it must be so represented 
 to the company and expressed in the policy in 
 writing, otherwise the policy shall be void." 
 The insured became the purchaser under a 
 mortgagee's sale ; the right to redeem had not 
 expired at the time the policy was made. lie 
 did not disclose the nature of his title. Held, 
 he was not bound to do so. Qaylord e. Lamar 
 Fire Ins. Go., 40 Mo^ 13. 
 
 687 
 
1375 
 
 TITLE. 
 
 137C 
 
 What is a warrajity of. 
 
 III. What is a waekantt of. 
 
 1. Policy made December 15, 1863, to A., 
 the owner, loss payable to W., mortgagee. 
 Stipulated : " The acts of the mortgagor shall 
 not affect the rights of mortgagee under the 
 policy." Also, "In case of payment to 
 mortgagee for a loss for which insurers would 
 not be liable to mortgagor, the mortgagee 
 shall assign mortgage to insurers." Also, 
 "In case of any change of the title in the 
 property insured, the policy shall be void." 
 Tlie mortgagor paid the premiums, and by 
 quit claim conveyed to H. They united in a 
 warranty deed to I., who assumed the mort- 
 gage, the grantors agreeing he should have the 
 benefit of the policy. W. assigned his mort- 
 gage to B., and insurers paid the loss to him, 
 and the balance of the mortgage debt beyond 
 the amount insured was paid by F., the mort- 
 gagee. Held, the mortgagor could not have 
 recovered on the policy, because he had 
 broken the condition which prohibited " Sale 
 or change in title," hence, he was not entitled 
 to have the moneys paid under the policies 
 applied to satisfy the mortgage, therefore the 
 assignee of W. was entitled to a foreclosure. 
 Springfield' Fire and Marine Ins. Co. v. Allen, 
 43 N. T. (4 Hand), 389. 
 
 2. Stipulated : " Application shall be made 
 according to the printed forms of the com- 
 pany, and shall specify tlie nature of the 
 applicant's title if less than fee simple. Any 
 misstatement or concealment relative to the 
 foregoing requirements shall render the in- 
 surance void." The plaintiff's written appli- 
 cation stated, that he owned the property by 
 virtue of an article of agreement with Eliza 
 Chapen, upon which land the building in- 
 sured was, at the time the application was 
 made. Held, the plaintiff could not be per- 
 mitted to prove that the building in question 
 was a chattel, for the statement in the applica^ 
 tion was a warranty as to his title, and as his 
 interest did not agree with that representation, 
 the policy never took effect. Held, also, the 
 plaintiff could not be permitted to prove that 
 he told the defendant's agent, who took the 
 application, that he had purchased the build- 
 ing prior to the making of the contract for the 
 purchase of the land. Birmingjiam v. Empire 
 Ins. Co., 43 Barb., 457. 
 
 3. Stipulated: " If the title of the property 
 ia transferred or changed, this policy shall 
 
 be void and the entry of a foreclosure of p 
 mprtgage shall be deemed an alienation." The 
 property — a chattel interest — had been mort- 
 gaged to secure a note made by the insured. 
 The mortgagee gave notice of his intention to 
 foreclose, and a certified copy of the notice 
 was duly recorded (Gen. Stats., ch. 151, §§ 6 
 and 7); about four weeks thereafter it was 
 totally destroyed by fire. Held, a literal entry 
 was not necessary ; an entry for a foreclosure 
 was sufficient to terminate the risk. Mclntire 
 v. Norwich Ins. Co., 103 Mass., 330. 
 
 4. Policy to the H. S. & L. M. Co., on their 
 one story frame salt block, etc. Stipulated: 
 "If the insured is not the sole and uncon- 
 ditional owner of the property insured * * * 
 then, and in every such case this policy shall 
 be void." The defendant offered to prove, tliat 
 at the time of the loss, B. held the entire equit. 
 able estate and interest, and the right to be 
 immediately invested with the legal title. 
 Held, the evidence was admissible, for the 
 contract warranted that insured was not merely 
 owner but owner by a sole unconditional title. 
 Olay Fire and Ma/rine Ins. Co. ■». Huron Salt 
 and Lumber Co., 31 Mich., 846. 
 
 5. The application propounded these ques- 
 tions: "Is the property mortgaged? Are 
 you the sole and undisputed owner of the 
 property to be insured? Do you own the 
 ground on which the building stands; if not, 
 how is it held ?" To the last he answered, '• By 
 contract;" to the first he answered, " No," and 
 to the second' he answered, " Yes." Insured 
 was in possession of the property under a con- 
 tract to purchase. He had failed to pay the 
 purchase money, and neglected, for three years, 
 to pay the taxes. The policy provided : "If 
 the insured is not the sole and unconditional 
 owner of the property insured, or if the prop- 
 erty be a building or buildings or the land on 
 which such building or buildings stand, by a 
 sole, unconditional and entire ownership and 
 title, and is not so expressed in the written 
 portion of the policy, it shall be void." Held, 
 his answers to the questions were equivalent 
 to a statement that although he held the land 
 and consequently the building under a con- 
 tract of purchase, yet no person other' than 
 himself had any substantial interest in the 
 property; tliat he had fully paid for the land, 
 was the solo owner by an equitable title in 
 fee, with the right to enforce the transfer of 
 the naked legal outstanding title to himself; 
 
1377 
 
 TITLE. 
 
 1378 
 
 What is not a warranty of — What satisfies the warranty. 
 
 that such statement was untrue, therefore the 
 policy was void. Binman v. Hartford Fire 
 Itu. Co., 36 Wis., 159. 
 
 IV. What is not a warranty of. 
 
 1. Insured was in possession, holding the 
 premises under a contract of sale from the 
 owners. In answer to a question propoimded 
 in the application, he stated that he was the 
 owner of the property, and that no other pei^ 
 sons were interested in it; but to another ques- 
 tion propounded, as to whether there was any 
 Incumbrance on the properly, he answered, 
 " Held by contract." Held, the answers, taken 
 together, precluded the insurer^rom asserting 
 that insured warranted his interest or owner- 
 ship as exclusive or absolute. McCuUoch «. 
 Noraood, 58 N. Y., 563 ; s. c, 4 J. & Sp., 180. 
 
 2. Stipulated: "Any pohcy issued by this 
 company shall be void, unless the true title of 
 the assured be expressed in his application." 
 The application contained no inquiry as to 
 the title, but in it occurred these questions: 
 "Is the property incumbered, and to what 
 amount?" Answer: "First mortgage to M. 
 Wyman (the plaintifl), $1,500, entered Octo- 
 ber, 1855." " Is the property insured ? " An- 
 swer: "Not on first mortgagee's interest, not 
 known to be by any other concern." Held, 
 these questions and answers must be deemed 
 to represent the interest of the applicant trtily, 
 and to apprise insurer that she was not the 
 absolute owner in fee simple. Wyman v. Peo- 
 ple's Bepiity Ins. Co., 1 Allen, 301. 
 
 3. Stipulated: "This insurance is predi- 
 cated upon an application or sun-ey, filed in 
 the oflSce of this company, which is made part 
 of this policy, and a warranty by the insured." 
 In it the applicant was asked to state whether 
 the buildings and machinery were owned by 
 him; if not, by whom; and what was the 
 nature of his interest. He replied:- "All 
 owned by one, except eight cards, one drawing 
 fVame and seventy-five new tin cans, belong- 
 ing to H., not to be insured in this policy." 
 He was asked to state whether the works were 
 operated on account of the proprietors, or 
 whether they were rented. He replied : " Bent- 
 ed." He was also asked to state whether they 
 were immediately superintended by one of 
 the proprietors; and if not, by whom. He 
 replied : " Yes." It was proved that the mill 
 had not been superintended by insured, who 
 
 was sole proprietor, but by H., the tenant. 
 Held, the answei-s disclosed that the applicant 
 owned the mill, and another hired it; that the 
 word "proprietors," taken in connection with 
 the questions and answers which preceded it, 
 was intended to include the tenant in the 
 ordinary use of that word ; that insurers could 
 not have understood, from the applicatiion, 
 that the landlord superintended the works, 
 because it stated that the mill was rented; 
 hence there was no misstatement in the appli- 
 cation which could affect the validity of the 
 policy. Wilson v. Hampden Fire Ins. Co., 4 
 R I., 159. 
 
 4. Whenever the insured is described as the 
 owner of the property, it is not to be construed 
 that he is the absolute owner, but that he has 
 an insurable interest, and in this respect the 
 construction is different to what it would be 
 upon covenant to convey land, for there the 
 thing conveyed is the land, and the vendor 
 makes an implied assertion of ownership. In 
 the latter case the word is entitled to receive 
 its technical meaning, but in the former it is 
 not entitled to any technical meaning. Sock- 
 fird Ins. Co. v. Nelson, 65 III., 415. 
 
 5. The premises insured were described as 
 "owned and occupied by the insured as a 
 store." Held, the recital in the policy was not 
 a warranty that insured was the owner of the 
 property, for the Georgia Code, sec. 2753, pro- 
 vides, that to sustain any contract of insurance, 
 it must appear that the insured has some inter- 
 est in the property or event insured, and such 
 as he has represented himself to have; a slight 
 or contingent interest " is sufficient, whether 
 legal or equitable. Southern Ins. and Trust 
 Co. V. Lewis, 43 Ga., 587. 
 
 6. On her two story frame dwelling house. 
 Heid, an equitable estate satisfied the descrip- 
 tion. Pennebaker v. Tondinson, 1 Tenn. Ch., 
 598. 
 
 7. The policy was written on his buildings. 
 Held, no warranty tliat they were his property. 
 Gitbert v. National Ins. Co., 13 Ir. Law, 143. 
 
 V. What satisfies the waeeakty. 
 
 1, Stipulated: "If the property shall be 
 sold or transferred, or any change take place 
 in title or possession without the company's 
 consent, it shall be void." Insured transferred 
 the property, and seventeen days thereafter the 
 policy expired, and a renewal was made twen- 
 
1379 
 
 TITLE. 
 
 1380 
 
 What satisfies the warranty. 
 
 ty-five days thereafter. Insurers had notice of 
 it, and by indorsement consented to an assign- 
 ment of the policy. Held, a waiver of the for- 
 feiture ; that when the company consented to 
 the assignment, the contract revived in favor 
 of the assignee; that tlie premium received 
 for the renewal and retained by the company, 
 was a good consideration for the agreement. 
 Shearman v. Niagara Ins. Go., 46 N. Y., 520 ; 
 B. c, 3 Sweeney, 470; 40 How. Pr., 393. 
 
 2. TJie husband built and enlarged the 
 house on land owned by his wife and her 
 sister, which he, with their consent occupied 
 in severalty. Held, he could insure it as his 
 own in a stock company. Ourry v. Oommon- 
 wealth Int. Co., 10 Pick., 535. 
 
 3. Insured was asked : " Do you own the 
 land on which the buildings stand ? " Answer : 
 
 "Yes." She derived title from the will of 
 her husband, admitted to probate six years 
 before the policy was made. Insurer oflFered 
 
 to prove that the testator left two children, 
 
 not provided for in the will, and, therefore, 
 under the revised statutes, they took the same 
 estate they would have taken had their father 
 died intestate, the entire real estate subject 
 only to the widow's dower. Held, insurer 
 could not do that which the heirs had never 
 done ; for if any one could disturb the title of 
 insured it was the heirs and none other ; that 
 her representation was substantially true, for 
 she had a freehold estate; and the owner of a 
 freehold is, in common parlance, as well as 
 under the law, regarded as the owner of the 
 estate. Allen «. CharUitovm Mutual Fire Ins. 
 Co., 5 Gray, 384. 
 
 4. The property was described in the appli- 
 cation and in the policy as "his house." The 
 policy stipulated : " If the interest in the 
 property insured is not absolute, it must be so 
 represented to the company and expressed in 
 the policy, in writing, otherwise the insurance 
 shall be void." At the time the application 
 and policy were written, insured had not the 
 legal estate, but had made a parol contract to 
 purchase, for a fixed price, a part of which he 
 had paid, had entered into possession as pur- 
 chaser, and had made valuable improvements 
 on the property. Held, his interest was abso- 
 lute, because it was an iuterest vested, of which 
 he could not be deprived without his consent. 
 Hough V. City Fire Ins. Co., 29 Conn., 10. 
 
 6. " If the interest in the property to be in- 
 sured be not absolute, it must be so stated in 
 690 
 
 the policy, and the nature of that interest must 
 be specifically described, otherwise the policy 
 shall be void." Plaintiff had advanced to his 
 son and another person, the equitable owners 
 of the land, all the money necessary to erect 
 the building, and had taken their notes for the 
 money, secured by a trust deed. They were 
 unable to make repayment, and sold to him, 
 delivering possession, together with their 
 muniments of title, and he surrendered the 
 notes. The court of the county in which the 
 premises were situate decreed him entitled to 
 a deed of the legal title. Held, the record was 
 evidence to establish his title, and his estate 
 was absolute. Coursin v. Pennsylvania Ins. 
 Co., 46 Penn. St., 323. 
 
 6. The contract provided: "All policies 
 upon buildings, when the insui'ance is general, 
 shall only be binding when the insured has an 
 unincumbered title in fee ; but when he h^is a 
 less estate therein the policy shall be void." 
 Held, it meant an estate of less duration than 
 fee simple ; also, that although the deed of con- 
 veyance was not good in law, yet the facts l)e- 
 ing such that a court of equity would compel 
 tie grantor to make a good conveyance in 
 law, the estate was, therefore, an estate in fee 
 simple, absolute, and the policy valid. Bwijt 
 «. Vermont Mutual Fire Ins. Co., 18 Vt, 
 305. 
 
 7. Insured was in possession, claiming and 
 occupying as owner. Held, prima facie evi- 
 dence of title, for a person in possession of 
 land is prima fa^ie presumed to be seized in 
 fee (citing 1 Phillips on Ev., 646, and note.) 
 FranMin Fire Ins. Co. v. Chicago lee Co., 30 
 Md., 102. 
 
 8. Insurer defended on the ground that in- 
 sured had no insurable interest in the prop- 
 erty ; that at all events he was not the sole 
 owner. The conveyance was not void, but 
 voidable, at the election of the vendor, pro- 
 viding the right to disaffirm were exercised 
 within a reasonable time. Held, insured was 
 the legal owner of the property as against all 
 the world. His title, so far as insurer was con- 
 cerned, was not conditional. Insurer could 
 not get rid of its obligation by setting up a 
 fraud committed upon third parties (citing 
 Marks v. Hamilton, 16 Jur., 152). Phanix 
 Ins. Co. V. MitcMl, 67 111., 43. 
 
 9. Stipulated : "To bo void if the interest 
 of insured in the property insured be other 
 than the entire, unconditional and sole own- 
 
1381 
 
 TITLE. 
 
 1382 
 
 What does not satisfy the warranty. 
 
 ership. Insured purchased, and gave the seller 
 a lien for a portion of the purchase money. 
 Held, the insured was the unconditional and 
 sole owner. Jfanhattan Ins. Go. v. Barker, 7 
 Heiskell, 503. 
 
 10. The court instructed tliat possession 
 was prima fade evidence of title to the prop- 
 erty insured. The property was two store- 
 houses and a stock of goods. Held, correct. 
 Kamag Im. Co. o. Berry, 8 Kan., 159. 
 
 YI. What does not aiTiSFr the wab- 
 
 KAISTT. 
 
 1. Stipulated: "Applications shall specify 
 the nature of applicant's title, if less than fee 
 simple; any misstatement or concealment in 
 relation to any of the foregoing requirements 
 shall render the policy void." In her applica- ■ 
 tion she stated : " I own the property ; there is 
 no incumbrance;" but it appeared she was 
 the widow of the former owner; that the 
 premises had been previously destroyed by 
 fire; that she had replaced them with money 
 of her own, and money paid to her by the 
 former insurers; that she had made a verbal 
 arrangement with her son, who was heir-at- 
 law, by which she was to have the premises in 
 exchange for certain lands which she owned 
 in Michigan, but nothing was done to perfect 
 this arrangement until after this action was 
 brought Held, no recovery could be had. 
 Pierce c. Empire las. Co., 62 Barb., 636. 
 
 2. Policy was subject to insurer's charter 
 and by-laws. They provided that the true 
 title of insured must be stated in the applica- 
 tion, and that the insured must make a true 
 representation of tlie risk, the value, the title 
 and interest Insured described the properly 
 as his. He had nothing but a contract for a 
 deed. Held, the policy was void. Smith o. 
 BowditeA Mutual Fire Int. Co., 6 Cnsh., 448. 
 
 3. Policy on his dwelling house, payable in 
 case of loss to L. In his proposal he was 
 asked, and stated, that the premises were 
 mortgaged to L. for $2,000. He had in fact 
 only a bond from L. to convey, on giving 
 mortgage for $2,000 advanced to build with, 
 and $1 ,800, price of the land. Held, the policy 
 was void, although the application was drawn 
 by the agent and director of the insured, but 
 the case does not show that the agent or the 
 director knew of the mortgage. Loteett «. 
 Middletex Mutual Fire Ins. Co., 8 Cnsh., 127. 
 
 4. Insurer's agent filled out a printed appli- 
 cation for insurance without the knowledge 
 of the parly insured. In it he stated that the 
 property belonged to the person insured. The 
 policy provided that it should be void un- 
 less the true title should be disclosed. " And 
 if the insured property be on leased land, 
 it shall not be considered insured unless 
 specially described." The building insured 
 was on leased land. Held, when insured ac- 
 cepted the policy he adopted the application 
 and its representations, and it was not compe- 
 tent for him to show that the agent knew that 
 insured's interest in tlie land was but a mere 
 tenancy at will. Kibbe v. Hamilton Mut. Ins. 
 Co., 11 Gray, 163. 
 
 5. " This policy is upon the express condi- 
 tion that the application upon which it is 
 founded shall be held to be a warranty on the 
 part of insured, and shall be considered a pait 
 of this policy." Insured was required to an- 
 swer whose is the property insured, to which 
 he replied : " The applicant's." The applica- 
 tion was signed: "Abbott Worsted Co., J. W. 
 Abbott, Treasurer." The property in fact be- 
 longed to him. H^d, a breach of the war- 
 ranty. Abbott v. Shawmut Mutual Fire Ins. 
 Co., 3 Allen, 213. 
 
 6. Act of incorporation provided tliat no 
 insurance on real estate should be valid unless 
 the title of insured is perfect and unincum- 
 bered. Insured's vendor had mortgaged it, 
 but no release had been made. The mortgage 
 debt was not paid till after law day, which the 
 mortgagee could have set up as a defense to 
 an action of ejectment Held, the insured had 
 not a perfect unincumbered title, notwith- 
 standing the mortgagee would be estopped as 
 against the insured, from setting up a satisfied 
 mortgage title. Warner v. Middlesex Mut. Ass. 
 Co., 21 Conn., 444. 
 
 7. The policy required insured to state the 
 nature of his interest In answer to the ques- 
 tions: "Who is the owner of the building?" 
 "Is there any incumbrance?" he answered: 
 " Applicant," Insured bad only a bond for a 
 deed, subject to the performance of certain 
 conditions, which had never been performed. 
 Held, the company had no lien upon the 
 estate insured, therefore the representation was 
 materially untrue, and the policy void. Brown, 
 «. Williams. 28 Me., 252. 
 
 8. Insurer's charter provided: "The com- 
 pany shall have a lien against all buildings 
 
 691 
 
1383 
 
 riTLE. 
 
 13S4 
 
 Of change of title, interest or possesfdon. 
 
 insured by them, to the amount ot his or her 
 deposit note." Insured described the property 
 as his own, bat his title was a tax sale, coupled 
 ■with foreclosure of mortgage. The statute re- 
 quired the coUectorto make return within thir- 
 ty days of all that he had dbne in every tax sale. 
 It did not appear that the collector had ever 
 made a return. G. & N. had a mortgage upon 
 tlie premises ; N. assigned his interest to E., 
 who entered and claimed to have foreclosed, 
 and insured derived his foreclosure title from 
 E.; but there was no evidence that G. had 
 ever parted with his interest in the mortgage. 
 Held, his title was not such as would enable 
 him to recover. Pinkham v. Morang, 40 Me., 
 587. 
 
 9. The act of incorporation provided : " If 
 insured have a less estate than a fee simple, 
 the policy may be void, unless the true title 
 be expressed therein." The insured, in his 
 application, described himself as the owner 
 of the buildings. His estate was tenant by the 
 courtesy. Held, the policy was void. Leath- 
 ers V. farmers Mutrial Fire Ins. Oo., 24 N. H., 
 259. 
 
 10. " If the insured have a less estate in 
 the land than fee simple, then the policy shall 
 be void unless the true title be expressed in 
 the policy." The property belonged to the 
 wife of insured ; the fee was in her, but the 
 policy was made to the husband. The appli- 
 cation propounded this question : " Have you 
 a clear title to the property which you wish 
 insured?" Answer: " It was the house and 
 possessions of J. P. Force, whose title was as 
 good as any man's in the countty, and he was 
 the father of my wife." Held, insurer had no 
 lien by virtue of the contract upon the prem- 
 ises insured, hence the policy was void. Em- 
 inence Mut. Ins. Co. ■». Jesse, 1 Met (Ky.), 523. 
 
 11. Cliarter declared policy void, if insured 
 should fail to state in the application any in- 
 cumbrance on the insured premises. There 
 was a deed of trust outstanding against the 
 premises. Held, the policy was void. Loehner 
 V. Home Mut. Ins. Go., 17 Mo., 247; s. c, 19 
 id., 628. 
 
 12. Stipulated: "If the property be held 
 in trust or on commission, or be a leasehold 
 or other interest not absolute, it must be so 
 represented to the company and expressed in 
 the policy in writing, otherwise the insurance 
 as to such property shall be void." The prop- 
 erty was described as "his steam flouring 
 
 693 
 
 mill." But insured held under a bond, which 
 would not mature within the time insured. 
 Held, the policy was void unless the insured 
 stated the true nature of his interest to the 
 company's agent, to whom he applied for 
 the insurance. Ayres v. Home Ins. Co., 21 
 Iowa, 185; BaTne v. Hartford Ins. Co., id, 
 193. 
 
 13. The application stated that insured 
 were owners in fee unincumbered, but the 
 only interest which insured had was that of 
 mortgagee in fee for a sum less than that in- 
 sured. Held, a false representation, which 
 vitiated the policy. Brown v. Gove Dist. Mvt. 
 Ins. Co., 10 U. C. q. B., 353; WoVroth v. St. 
 Lawrence County Mut. Ins. Co., id., 525. 
 
 YII. Of CHAlfGE OF TITLE, INTEEE3T 
 OB POSSESSION. 
 
 (a) What is not. 
 
 1. Change of possession prohibited. In- 
 sured was temporarily absent at the time of 
 the fire; the house was in charge of another 
 person. Hdd, no change of possession. 
 Shearman v. Niagara Fire Ins. Co., 46 N. Y , 
 526; 2 Sweeney, 470; 40 How. Pr., 393. 
 
 2. Stipulated : " In case of any sale, alien- 
 ation, transfer or change of title, or of any un- 
 divided interest therein, the policy shall cease. 
 The entry of a foreclosure, the levy of an ex- 
 cution, or an assignment for the benefit of the 
 creditors, shall be deemed an alienation." 
 Insured chattel mortgaged the property, but it 
 did not appear that the mortgagee had the 
 right to take possession, or had entered into 
 possession. Held, nothing but an act which 
 divests the title absolutely, would amount to a 
 change of title within the meaning of the con- 
 tract. Van Heusen o. Charter Oak Ins. Co., 1 
 Abb. Pr (N. 8.), 349; b. c, 1 Rob. (N. T.), 55. 
 
 3. A bill of sale had been made, but never 
 delivered, no consideration had passed, nor 
 had the possession of the property ever passed 
 from insured. Held, no change of title. 
 Vogel v. People's Mutual Fire Ins. Co., 9 Gray, 
 23. 
 
 4. Stipulated: " In case of any sale, trans- 
 fer or change of title, the policy shall be void. 
 The owner of the property and another person, 
 to prevent attachments, represented to the 
 creditors that the property had been sold. 
 
1385 
 
 TITLE. 
 
 1386 
 
 Of change of title, interest or possession. 
 
 Held, not evidence of change of title. OrreU 
 V. Hampden Fire Iiig. Co., 13 Gray, 431. 
 
 5. Policy prohibited any change of title. 
 Insured made a mortgage upon it, to which 
 insurers were never required to assent. Seld, 
 no change of title. Shephard v. Union Mutual 
 Firt Im. Co.. 88 N. H., 232. 
 
 6. Policy to M. & P. on buildings and ma- 
 chinery owned by them as partnership prop- 
 erty. M. conveyed his interest to P. The 
 policy was not assigned. P. carried it to W. 
 the company's agent, who knew that P, had 
 bought M.'s interest, and was sole owner. P. 
 
 .told W. that he wanted the mill reinsured. 
 W. took the policy, returned it to P., and re- 
 ceived the premium. P. never looked at it 
 till after the fire ; then he discovered for the 
 first time that it was simply a renewal of the 
 old policy to M. & P. Held, a change of own- 
 ership among joint owners did not affect the 
 liability of the company (citing Niblo o. 
 North America Fire Ins. Co., 1 Sandf. (N. Y.), 
 551 ; Tillou v. Kingston Mutual Fire Ins. Co., 
 7 Barb., 570; Wilson v. Genesee MuL Ins. Co., 
 16 id., 512; Hoffman o. -^tna Ins. Co., 82 N. 
 T., 405; 1 Phil. Ins., sec. 872). Pierce «. 
 Nashua Fire Ing. Co., 50 N. H., 297. 
 
 7. The policy prohibited any change of 
 title. Held, whether a sale was valid or void- 
 able there was a change of title. School Dii- 
 triet V. uStna Ins. Co., 54 Me., 505. But upon 
 another trial it appeared that the sale was on 
 crtdil, and that the school authorities had not 
 the right to make any sale for credit; and it 
 further appeared that the small sum paid 
 down never came into the possession of the 
 authorities, and that the sale was never ratified 
 by them. Held, the plaintiffs were entitled to 
 recover, s. c, 63 id., 330. 
 
 8. Stipulated: " Any tran-sfer or change of 
 interest, by sale or otherwise, shall avoid 
 the policy." B. sold the property to F., for 
 whom this policy was made. He sold to M., 
 retaining a lien for the purchase money. Held, 
 not such a change of interest as would affect 
 the right of the insured to recover upon the 
 policy. BaUs e. Gommereial Int. Co., 1 Cin. 
 Sup. CL, 523. 
 
 9. The policy prohibited any change of 
 title. Held, it meant such a change as would 
 terminate the interest of tlie insured in Uie 
 property. Jaduoa o. ^tna In*. Co., 16 B. 
 Mon., 242. And though there was a sale in 
 name, but not an absolute transfer of property 
 
 nor a substantial change of interest, the policy 
 still protects the vendor's interest or his lien 
 for the purchase money. Ihid. 
 
 10. Stipulated: "If said property shall be 
 sold or conveyed, or the interest of tlie parties 
 therein changed, this policy shall be null and 
 void." Z. and S. were joint owners of tlie 
 property. S. sold his entire interest to Z., and, 
 to secure the purchase money, reserved a lieu 
 upon the property and bound Z. to insure it, 
 which he did for |10,000. A decree was sub- 
 sequently entered, enforcing the lieu of S., 
 who, on the 15th of July, bought the property 
 under a decretal sale. It was consumed Au- 
 gust 5th; the order of sale was not confirmed 
 till October 4th. Held, neither the title nor 
 the insurable interest of Z. had been transferred 
 or changed until confirmation of the decretal 
 sale to S. Manhattan Ins. Co. c. Stein, 5 
 Bush., 653. 
 
 1 1. Policy on vessel, " To be void on assign- 
 ment thereof, transfer of interest, or change 
 of command," She was seized by the sheriff 
 at the suit of a creditor. Held, no defense to 
 the action. Marigny v. Home Mut. Ins. Co., 
 13 La. An., 338. 
 
 1 2. Policy to T. and Co., on merchandise, 
 being stock in trade and on commission. 
 Stipulated : " This policy is not assignable 
 unless by consent of this corporation mani- 
 fested in writing; and in case of any transfer, 
 either by sale or otherwise, without such con- 
 sent, this policy shall be void and of no effect." 
 The partner of T. assumed all the debts of the 
 firm and took all the assets and paid T. f 735 ; 
 about three months thereafter tlie goods were 
 burned. Held, the death of one the partners 
 would have transferred his interest in the 
 policy to his heirs; the prohibitory clause 
 must be construed strictly, and if of doubtful 
 meaning it must be construed against the 
 insurer; and, therefore, it would be construed 
 as prohibiting the transfer by sale or other- 
 wise of the policy, and not as prohibiting a 
 change of interests among the partners, nor 
 the assignment of the interest of one partner 
 to another. Dermani «. Home Mut. Ins. Co., 
 26 La. An., 69. 
 
 13. The policy prohibited any alienation, 
 transfer, sale, or change of title, and then 
 stated : " An entry for foreclosure of a mort- 
 gage, or the levy of an execution, or an assign- 
 ment for the benefit of creditors, shall be 
 deemed an alienaiiou of the property." Held, 
 
1387 
 
 TITLE. 
 
 1388 
 
 Of chajige of title, interest or possession. 
 
 a mortgage was not a violation of the condi- 
 tion, for the explanatory clause excludes such 
 a construction. Commercial Ins. Co. v. Spank- 
 neble. 52 111., 53. 
 
 1 4. One policy upon two houses, stipulated : 
 " If any change take place in the title or pos- 
 session of the property, whether by sale, legal 
 process, judicial decree, voluntary transfer or 
 conveyance, it shall be void." The insured 
 mortgaged the premises. Seld, a mortgage 
 was not within the prohibition. HaHford 
 Fire Ins. Co. v. Walsh, 54 111., 164. 
 
 1 5. Stipulated : " If the title be transferred 
 or changed, this policy shall be void." In- 
 sured was the owner of the equity of redemp- 
 tion. T. held the mortgage, and the policy 
 was made payable to him, as his interest might 
 appear. Subsequently insured conveyed to B., 
 who gave back to insured, as part of the same 
 transaction, a defeasance, and the mortgage to 
 T. was released. Held, the conveyance and 
 defeasance were to be treated as a mortgage, 
 and was not any change or transfer of the title 
 of the insured ; the only change effected was 
 that T.'s mortgage was discharged and B. had 
 another, the latter taking the place of the 
 former. Aurora Fire Ins. Co. v. Eddy, 55 111., 
 213. 
 
 ItJ. Stipulated: " In case of any sale, trans- 
 fer or change of title in the property insured, 
 such insurance shall be void and cease. Held, 
 a transfer absolute upon its face, but intended 
 as collateral security for subsisting debts 
 upon the property, did not avoid the policy. 
 Ayres v. Hartford Fire Ins. Co., 17 Iowa, 
 170. 
 
 17. Stipulated: "If the said property shall 
 be sold or conveyed, or the interest of the par- 
 ties therein changed, or if this policy shall be 
 assigned without the consent of the company 
 obtained in writing hereon, then and in every 
 such case it shall be null and void." It was 
 made to B., M. & S. on goods and merchan- 
 dise. 8. withdrew from the firm, and sold all 
 Ills interest in it to his copartners. iTeW, the 
 interest of each partner in the goods was per 
 my et per tout; that the restriction was sus- 
 ceptible of different meanings, and iliere- 
 fore it must be construed contra the insurer 
 (citing Hoffman n. MXna. Ins. Co., 32 N. 
 Y., 405; Wilson u. Genesee Mut. In». Co., 
 16 Barb., 511, overruling the judgment be- 
 low). Burnett o. Eufaula Home Int. Co., 46 
 Ala., 11. 
 694 
 
 (b) What is. 
 
 18. Two joint owners insured in their joint 
 names ; one conveyed his interest to the other. 
 Both sued jointly. Held, tliey could not re- 
 cover, because they had no joint loss. How- 
 ard V. Albany Ins. Co., 3 Denio, 301. 
 
 19. Policy to B., to expire December?, 
 1868, at noon (it was renewed for one year 
 from that date, and B. died intestate July 21, 
 1S69, by which the jiroperty passed to his leirs 
 at law, and the fire occurred November 9, 1869. 
 Plaintiff was appoiated administrator January 
 10, 1870). Stipulated : " To be void if assigned 
 before or after loss, and in case of any sale, 
 change or transfer in the title of the prop- 
 erty; also the entry for foreclosure, levy 
 of an execution, or attachment, or possession 
 by another, of the subject insured, unless with 
 the company's consent indorsed, shall work 
 its determination. Held, the policy ceased to 
 have any binding force upon the death of the 
 insured, because the property vested in his 
 heirs at law, which was a change of title and 
 change of possession, notwithstanding by its 
 terms insurers agreed to pay the sum insured 
 to the insured, his executors, administrators, 
 and assigns. Lappin «. Charter Oak Fire and 
 Marine Ins. Co., 58 Barb., 325. 
 
 20. Stipulated : " If the property be sold or 
 transferred, or any change take place in title 
 or possession, the policy shall be void." 
 Plaintiff conveyed the property to W., who 
 then held a mortgage on it, who executed an 
 agreement giving possession to plaintiff fur 
 one year, and the right to pay $13,500 and 
 take a reconveyance. Held, insurers were re- 
 leased. Tatham, v. Commerce Ins. Co., 4 Hun. 
 (N. Y.), 136. 
 
 21. Stipulated : " If the property be sold or 
 transferred, or any change takes place in the 
 title or possession by legal process, judicial 
 decree, or voluntary transfer or conveyance, 
 without written permission, the policy shall 
 be void." One partner brought an action to 
 dissolve the firm, and a receiver was appointed. 
 Subsequently a dissolution of the firm was 
 adjudged, and a sale of the property decreed. 
 A loss occurred before the sale was made. 
 Held, a violation of the condition, which re- 
 leased the insurers. Keeney v. Home Ins. Co., 
 3 N. Y. S. C, 478. 
 
 22. Stipulated : " If the property shall be 
 sold or conveyed, or the interest of the parties 
 
1389 
 
 TITLE. 
 
 1390 
 
 Of duunge of title, interest or possession. 
 
 therein be changed withont consent of the 
 company obtained in writing, it shall be 
 void." The owner contracted under seal, to 
 sell and convey, and the purchaser paid part 
 of the purchase price. Held, a change of in- 
 terest Germoad o. Home In*. Co., 2 Hun. (N. 
 T.), 540; s. c, 5 N. T. S. C, 120. 
 
 23. Stipulated: "When any property in- 
 sured shall be taken possession of by a mort- 
 gagee, the policy shall be void. The second 
 mortgagee had ali-e-sdy taken possession of the 
 premises for condition broken, but this was 
 not disclosed. After the policy was made, the 
 first mortgagee entered and took possession, 
 and subsequently a third mortgagee entered 
 and took possession. Insured* subsequently 
 conveyed his interest to J., insurers consent- 
 ing, and he became bound to them for the pay- 
 ment of the premium. Held, the policy was 
 void before insurers consented to the assign- 
 ment, and no recovery could be had upon it 
 Ja4sobg V. Eagle Mutual Fire Ins. Co., 7 Allen, 
 132. 
 
 24. Policy upon goods of two partners. 
 Stipulated: "Any transfer or change of title 
 in the property insured shall avoid the pol- 
 icy." Held, a dissolution of the copartner- 
 ship, the division of the goods, so that the 
 parties held their shares separately and dis- 
 tinctly, operated as a change of title in the 
 goods. JDreher v. ^tna Inn. Co., 18 Mo.. 128. 
 
 25. " Li case of loss, payable to F." Stipu- 
 lated: " If any change shall take place in the 
 title or possession of the property, whether by 
 sale, lease, legal process, judicial decree, or 
 voluntary transfer without the consent of this 
 company, the policy shall be void." Insured 
 sold and conveyed an undivided half interest, 
 for which consent was not obtained. Held, the 
 policy was void. MeEwen v. Western In». Co., 
 1 Mich. N. P. (Brown), 118. 
 
 26. Stipulated: "And in case of any sale, 
 transfer or change of title in the properly in- 
 sured by this company, such insurance shall 
 be void and cease." After the policy was 
 issued insured made a conveyance of an undi- 
 vided one-third interest absolute in form, but 
 it was intended by the parties to secure the 
 grantee for a sum of money due, and other ad- 
 vances to be made. Held, the policy prohib- 
 ited a change of title and this, though not in- 
 tended as a sale, was within the prohibition 
 and avoided the policy. Wegtem MoMoeha- 
 tettt Int. Co. c. Siker, 10 Mich., 279. 
 
 27. Stipulated: "To be void in case of 
 transfer or change of interest of the insured, 
 by sale or otherwise." The policy was made 
 to the purchaser. " Loss, if any, payable to 
 the vendor." But the vendee sold, and re- 
 tained a lien for the purchase money. Held, a 
 change of interest which released the insurers, 
 making a distinction between the terms of the 
 contract in Bates «. Commercial Ins. Co., 1 
 Cin. Sup. Ct, 533. Bates v. Commercial Ins. 
 Co., 2 Cin. Sup. Ct, 195. 
 
 28. Stipulated: "In case of any sale, trans- 
 fer or change of title in any property instired 
 by this company, or of any undivided interest 
 therein, such insurance shall be void and 
 cease." Held, a sale and transfer by one part- 
 ner of his interest in the property to one of his 
 copartners before the loss occurred, made 
 without the consent of the company, released 
 the insurer. Hartfbrd Eire Ins. Co. o. Hoss, 
 23 Ind., 179. 
 
 29. Policy to D., S. & H., copartners. Stip- 
 ulated : " In case of any change of title in the 
 property insured, or of any undivided interest 
 therein, such insurance shall be void and 
 cease." S. sold his interest in the concern to 
 D. & H. Held, the sale avoided the policy 
 Dix V. Afereantile Ins. Co., 22 111., 272. 
 
 30. The policy prohibited change of title. 
 When it was made, insured was the absolute 
 owner, but he sold an undivided two-thirds, 
 and took a mortgage back to secure the pur- 
 chase money. Held, a change of title which 
 vitiated tlie policy. Home Mutual Fire Ins. 
 Co. V. Haxislein, 60 111., 521. 
 
 31. Policy to H. & H. who were copartners. 
 Stipulated : " In case of assignment without 
 insurer's consent whether of the whole policy 
 or of any interest in it, the liability of the 
 company, in virtue of such policy, shall 
 thenceforth cease." The defendant pleaded 
 that one partner had assigned his interest 
 in the subject insured to the other ; to which 
 plaintifis replied: "The assignment was 
 made with defendant's consent;" to which 
 the defendant demurred. The demurrer was 
 overruled in the court below, and there was 
 judgment against the defendant, but it was re- 
 versed and remanded. Hobbt v. Memphis Ins. 
 Co., 1 Sneed, 444. 
 
 Yin. Generally. 
 
 If the insured expressly or impliedly war- 
 
 693 
 
1391 
 
 TO RECOVER MONEY BACK. 
 
 1302 
 
 Of the pleadings — When the action shall be maintained. 
 
 rants an estate, not less than fee, unincum- 
 bered, he must aver and prove it. Illinois 
 Mutual Fire Ins. Co. v. Marseilles Manufactu- 
 ring Oo., 6 III., 236. 
 
 TO EECOVER MONEY BACK. 
 
 I. Of the fleasings. 
 II. When the action shall be main- 
 
 TAINBD. 
 
 III. When the action shall not be main- 
 tained. 
 
 I. Of the pleadings. 
 
 In an action to recover money obtained by 
 false statements, the requisites for supporting 
 the action are the telling of an untruth, know- 
 ing it to be an untruth, with intent to induce 
 the other party to alter his condition, and that 
 in consequence, the other party did alter his 
 condition, whereby he sustained damage. The 
 scienter is a material and vital element in the 
 case, and must be alleged in the declartion 
 and proved at the trial (citing King v. Eagle 
 Mills, 10 Allen, 548 ; Pierson v. Howe, 1 id., 
 207). Hartford Live Stock Ins. Co. v. Mattliews, 
 102 Mass., 221. 
 
 II. When the action shall be main- 
 tained. 
 
 1. Policy upon the life of the wife, payable 
 to her assigns, executors, administrators, etc. 
 After her death insurers paid the claim to her 
 husband in his character as administrator, 
 and now brought this action to recover the 
 money back, on the ground that the contract 
 and the payment of the claim were procured 
 by the fraud of the wife and the husband, in 
 this ; that the deceased had an incurable can- 
 cer at the time the policy was made, and, that 
 the claim was paid in ignorance of that fact. 
 Held, if the husband obtained the policy by 
 fraud, acting as the agent of his wife, he oc- 
 cupied the position of claiming to keep the 
 money as her legal representative, which he had 
 fraudulently obtained as her agent; that if the 
 policy was procured by fraud, it was invalid 
 and he could not defend this action upon her 
 title to it. National Life Ins. Co. b. Mineh, 53 
 N. Y., 144; reversing 6 Lans., 100. 
 696 
 
 2. Plaintiff's agent acting without author!, 
 ty and through mistake, paid insurer for the 
 privilege of a foreign residence for his princi- 
 pal, which privilege was already within tlie 
 terms of the contract, fieid, defendant must 
 refund the money. Fories v. American Mutuat 
 ,Life Ins. Co., 15 Gray, 249. 
 
 3. If an insurer pays money in ignorance 
 of a fact which avoided the policy, an ac- 
 tion lies to recover it back; and the fact that 
 the person who effected the insurance, and to 
 whom tlie money was paid acted as the agent 
 of the owner, and has paid the money over to 
 him, is no defense unleas he disclosed his 
 agency, before lie received the money from the 
 insurer. Colwmhus Ins. Co. t. Walsh, 18 Mo., 
 229. 
 
 4. B. procured a policy of insurance in 
 plaintiff's name and paid the premium to de. 
 fendant; but plaintiff had no goods on board. 
 Held, the premium was money received to 
 plaintiff^s use without any consideration, and 
 therefore indebitatus assumpsit could be main- 
 tained. Martin v. Sitwell, Holt, KB., 25; 
 Show., 156. 
 
 5. Insured claimed a loss, which was paid, 
 and this action was brought to recover back 
 the money. It appeared that the warranty to 
 depart with convoy was broken. Hdd, the 
 insurer was entitled to recover. Anderson s. 
 Pitcli^, 2 B. & P., 164; 3 Esp., 134. 
 
 6. The insurer paid a total loss, and after- 
 wards ascertained that a warranty had not 
 been observed, and brought suit to recover it 
 back. Held, he could maintain the action. 
 DeHahn d. Hartley/, 1 Term, 343 ; affirmed, 3 
 id., 186. 
 
 7. Miss Simpson effected a policy on her 
 own life by means of certain fraudulent prac> 
 tices. The defendant afterwards inquired of 
 the insurers as to its value, and whether he 
 could receive the money that might accrue 
 under it, if it should be assigned. He stated 
 that he was about to purchase it, but that he 
 would not do so if he should have any trouble 
 in collecting the money in case of Miss Simp- 
 son's death. The company replied, " That as 
 but one payment had been made on the policy, 
 it was worth little or nothing," and that Miss 
 Simpson might assign the policy to him. 
 Miss Simpson subsequently notified the com- 
 pany that she was indebted to the defendant 
 a sum greater than that insured, that she had 
 given the policy up to the defendant as secur- 
 
1393 
 
 TO RECOVER MONEY BACK. 
 
 1394 
 
 When the action shaU not be maintained. 
 
 ity for the debt, and in case the notice was 
 deemed insufficient she would expect to hear 
 in respect of it, in order that a valid assign- 
 ment might be made. The company con- 
 sented to the transfer, and in one month there- 
 after the defendant notified them of the death 
 of Miss Simpson, asked for instructions how 
 he should make proof of her death, which 
 were given, and the company paid the sum 
 insured, £850. Afterwards the fl-aud was dis- 
 closed, and it appeared that Miss Simpson 
 was not indebted to the defendant; that he 
 took the policy as a security for a debt of 
 £450 due him by one Edwards, Miss Simp- 
 son's relation. The jury found that he was 
 not a bona fide assignee of the p«licy, but took 
 it without any knowledge that Miss Simpson 
 had fraudulently procured the company to 
 make it. Held, the company was entitled to 
 recover the money back. Zefevre io. Boyle, 1 
 L. J. (N. S.) K. B., 199. 
 
 III. When the action sm at.t. not be 
 
 MAINTAINED. 
 
 1. If an insurer pays a claim, he must es- 
 tablish a clear mistake of fact before he is enti- 
 tled to recover it back. Siting v. Scott, 2 
 Johns., 157. 
 
 2. Insured stated in his application tliat he 
 never had apoplexy, asthma, bronchitis, con- 
 sumption, spitting of blood, disease of the 
 heart or urinary organs, that he never had any 
 serious illness, local disease or personal in- 
 jury. After his death insurers made examina- 
 tion and ascertained that he had been sick 
 frequently, probably of consumption. They 
 consulted physicians who had attended him, 
 and as the result of those examinations deci- 
 ded to pay the claim in full. Subsequently 
 they came to the conclusion that they ought 
 not to have paid it, and brought this action to 
 recover the money back. Held, in an action 
 to recover money back, if the money is paid 
 under mistake of fact, the plaintiff's recovery 
 is not defeated though it appears he possessed 
 the means of acquiring the truth, by examina- 
 tion and investigation (citing Dails e. Lloyd, 
 12 Q. B., 531; Kelly v. Solan, 9 M. & W., 54;. 
 But if the payment be not solely upon the mis- 
 lake of fact, but from mixed motives, the ac- 
 tion cannot be maintained, nor can the plaiutifi 
 be permitted to rescind the payment, merely 
 because he has changed his mind in regard to 
 
 a matter of policy, or because he has come to 
 a better position, y^ational Life Ins. Co. v. 
 Jones, 1 N. Y. S. C, 466. 
 
 3. An action of tort, to recover money back 
 on the ground that defendant had conveyed 
 the premises before the loss, and that he had 
 falsely and fraudulently stated to the company 
 that he owned the property at tlie time of the 
 loss. Held, to enable the company to recover 
 back the money, they must show that insured 
 had not only conveyed the property, and made 
 the false representations as alleged, but they 
 must also prove that the insured had no right 
 to recover a loss upon the policy. Berkshire 
 Mitt. Im. Co. •». Sturgit, 13 Gray, 177. 
 
 4. The defendant's life was insured by the 
 plaintiff for the use of W. and A., and thcloss 
 was made payable to them. Held, the defend- 
 ant was not a party to the contract; he could 
 not avoid it on the ground of fraud, and 
 though the money paid for the premiums was 
 his own, and not that of the insured, he could 
 not maintain an action to recover it back. 
 North America Life Ins. Co. n. Wilson, 111 
 Mass., 543. 
 
 5. The policy was effected through an agent, 
 and agreed in all respects with the proposal 
 signed by Uie insured, who kept it, and paid 
 two premiums. Held, he could not recover 
 back the premium on the ground that it was 
 not such a policy as the soliciting agent agreed 
 to deliver. Mecke v. Life Ins. Co., 8 Phila., 6. 
 
 6. Policy on account of S. K., " Loss, if any, 
 payable to J. & H." The plaintiff paid J. & 
 H. the whole amount of the claim. Held, the 
 policy was for the benefit, and covered the in- 
 terest of S. K. ; tliat the money paid to J. & H. 
 must be regarded as paid to S. K., and if J. & 
 H. accounted with S. K. for it, and discharged 
 themselves of tlieir agency, no action could 
 lie against them for money wrongfully paid 
 (citing Bogart c. Nevins, 6 S. & R., 368;. C»?i- 
 einnati Ins. Co. v. Bieman, 1 Disney, 396. 
 
 7. The plaintiff caused a policy to be made 
 for the defendant. A loss happened, and the 
 plaintiff paid the sum insured to the defend- 
 ant; but tlie insurer had become insolvent, of 
 which the plaintiff had no knowledge. Held, 
 he could not recover the money back. Edgar 
 v.Bumstead, 1 Camp., 411. 
 
 8. If a man has actually paid what the law 
 would not have compelled him to jiay, but 
 what in equity and conscieuce he ought to 
 have paid, he cannot recover it back. But 
 
 697 
 
1395 
 
 TOTAL LOSS (ABSOLUTE OR CONSTRUCTIVE). 
 
 1396 
 
 What constitutes. 
 
 ■where money has been paid under a mistake, 
 where there was no ground t) claim in con- 
 science, an action for money had and received 
 can be maintained. Bize v. Dickason, 1 Term, 
 285. 
 
 9. Goods valued in the policy at £t,500 were 
 seized and sold by the government of Hol- 
 land. No abandonment was made, nor were 
 there any documents to verify the loss when 
 the insurer, at the request of insured, paid 
 fifty per cent, on the sum insured. Holland 
 ultimately restored half their proceeds, £1,551 
 Is. ; and the insurer brought his action to re- 
 cover back the money by him paid on the 
 claim. Held, he could not recover. Tunno v. 
 Edwards, 12 East, 488. 
 
 10. A., agent of insured, procured the pol- 
 icy. He had a letter in his possession inform- 
 ing him that the vessel had been aground, 
 sprung a serious leak, and was then at Car- 
 thagena making repairs. Without any inten- 
 tion to deceive insurers, he omitted to disclose 
 the information. A loss occurred, and the in- 
 surer paid it to A., who appropriated a portion 
 of the money to the payment of certain debts 
 incurred by insured, and remitted the balance 
 to him, before he had notice of insurer's in- 
 tention to repudiate the policy. Insurer 
 brought this action against A. to recover the 
 money. Held, the omission to disclose the 
 information contained in the master's letter 
 made the policy voidable at the election of the 
 insurer; but as A. was an agent only, of which 
 insurer had notice, his payment of the money 
 received to his principal and for account of 
 his principal, without notice of an intention to 
 repudiate the contract, was a bar to insurer's 
 action. Holland v. Russell, 1 B. & S., 434; 
 s. c, 30 L. J. Q. B., 308; 7 Jur. (N. S.), 842; 4 
 L. T. (N. S.), 547; affirmed, 4 B. & S., 14; s. c, 
 33 L. J. Q. B., 397; 11 W. R., 757; 8 L. T. (N. 
 S.), 468. 
 
 H. The pursuer brought his action to re- 
 cover premium paid, and alleged the policy 
 was void under 14 Geo. Ill, ch. 48, because he 
 had not any interest in the life insured, and that 
 he did not know of this when the policy was 
 made, but that insurer knew it. Held, no 
 recovery could be allowed. Campbell v. Allan, 
 Faculty Dec, 1796 to 1801, p. 353. 
 
 12. When a person has paid money with 
 full knowledge of the facts, he cannot main- 
 tain an action to recover it back on the ground 
 that he paid it in ignorance of his legal lights. 
 
 Perry v. Newcastle Mutual Fire Ins. Co., 8 U.- 
 0. Q. B., 363. 
 
 TO SUE, LABOR AND TRAVEL FOR. 
 
 (See Fbesbbtatioh' ov Fbofebtt.) 
 
 TOTAL LOSS (ABSOLUTE OR CON- 
 STRUCTIVE). 
 
 (See Abandonmbnt; Fbbight; Master or Ship; Onk- 
 
 THIBD NETT TOB OLD.) 
 
 I. What constitutes. 
 
 (a) Cy the master'n sale. 
 
 (b) Of capture, seizure, arrests, detention 
 
 and retardation. 
 
 (c) Of perils of the seas. 
 
 (d) Of missing ship. 
 
 II. What does not constitute. 
 
 (a) Of the master's sale. 
 
 (b) Of captufe, seizure, arrests, detention 
 
 and reta/rdation. 
 
 (c) Of perils of the seas. 
 
 (d) Of missing ship. 
 
 HI. Of the amount op damaoe and dipfi- 
 
 CULTT OK INABIIilTY OP PBOCUBING BE- 
 PAIBS. 
 
 I. What constitutes. 
 
 (a) Of the Tnasier's sale. 
 
 1. "On the schooner Francis, valued at 
 $2,500, lost or not lost, from Cura9oa, or a port 
 of departure in the West Indies or on the 
 Main, to a port in the United States." She 
 sailed from Curacoa to Carthagena, and took 
 a cargo for Norfolk, with which she sailed, 
 but received such injuries in a gale that she 
 was forced to put back to Carthagena, where 
 the American consul ordered a survey, and 
 sold her for $140 to E.; but it was understood 
 that the master was concerned with him in 
 the purchase, and furnished the money. She 
 was resold by her purchasers for over $300, 
 subsequently repaired and returned to the 
 United States. Held, if she could not have 
 been repaired except at an expense exceeding 
 half her value, at Carthagena, she was a total 
 
1397 
 
 TOTAL LOSS (ABSOLUTE OR CONSTRUCTIVE). 
 
 1398 
 
 What constitutes. 
 
 loss, and the value at the time the Injury hap- 
 pened was tlie rule by which the right was to 
 he decided. Patapsco Ina. Go. v. Southgaie, 5 
 Pet., 604. 
 
 2. Policy upon specific articles, part of 
 which being condemned, the master, to pre- 
 vent the embarrassment of an appeal as to 
 otliei-s, with which he was threatened, agreed 
 to pay captors $3,000. To raise this sum it 
 became necessary to sell more than a moiety 
 in quantity and value of the cargo. Held, a 
 technical total loss of the cargo. VandenJieu- 
 vel V. United Ins. Co., 1 Johns., 40fi. 
 
 3. Three hundred barrels of flour were in- 
 sured for |2,750. One hundred and twenty- 
 three barrels were jettisoned, and thirty bar- 
 rels sold at the port of distress, in conse- 
 quence of sea damage, produced $165. Held, 
 insured were entitled to recover for a total 
 loss ; that the sale was necessary, because of 
 an injury for which insurers were liable, and 
 the proceeds passed by abandonment to in- 
 surers. Moses V. Columbian Ins. Co., 6 Johns., 
 219. 
 
 4. On ship. She performed her outward 
 voyage and set sail on the homeward passage. 
 In very heavy weather she sprung a leak, and 
 bore away for a port of distress, and reached 
 Kinsale, November 28th, and left it January 
 Ist; encountering heavy weather again, she 
 ran back to Kinsale, and arrived there fourteen 
 days after her departure, was condemned 
 as unfit to be repaired, and sold. Held, in- 
 sured -was entitled to recover for a total loss, 
 and general average expenses. ScUtus n. Com- 
 mercial Ins. Co., 10 Johns., 487. 
 
 5. She was sold under a decree in admiral- 
 ty, in a foreign country, and the master pur- 
 chased her on his own account, without au- 
 thority or assent of the owners. Held, the in- 
 surers could not avail themselves of the pur- 
 chase to reduce the loss from a total to a par- 
 tial loss. Sawyer v. Maine Fire and Marine 
 Ins. Co., 13 Mass., 291. 
 
 6. Surveyors, at a port of necessity, reported 
 that the ship could not be repaired there with- 
 out incurring expenses exceeding her value, 
 because of the lack of materials. She was 
 condemned and sold for account of whom it 
 might concern. She was valued in the policy 
 for $2,000 and brought $1,086. She was after- 
 wards refitted by the purchaser. Held, if the 
 sale was necessary It constituted a total loss 
 without an abandonment; but the survey and 
 
 condemnation were not conclusive evidence 
 of the necessity of the sale. Cordon v. Mas- 
 sachusetts Fire and Marine Ins. Co., 2 Pick., 
 249. 
 
 7. It was impossible to repair her, either at 
 the port of necessity or at a neighboring port 
 to which she might have gone, except by ex- 
 pending a sum greatly exceeding the valua- 
 tion named in the policy. The master sold 
 her. Held, the master's sale was justifiable ; 
 that it was a total loss and no abandonment 
 was necessary, notwithstanding the master 
 paid over to insured the net proceeds of the 
 sale. Graves v. Washington Marine Ins. Co., 12 
 Allen, 391. 
 
 8. Sh e was thrown upon the rocks at Hell 
 Gate and very badly damaged. A large part cf 
 her keel was knocked oflT, sides beaten in, and 
 her cargo of salt washed out. Insurers refused 
 to incur any expense in getting her oflf or repair- 
 ing her, claiming that they had no risk upon 
 
 her at the time of the accident. Held, if her 
 situation was extremely hazardous, and she 
 was in danger of being utterly lost, and in- 
 sured abandoned before she was got ofi', then 
 insured had a right to recover for a total loss, 
 notwithstanding she was sold by the master 
 at public auction and bought in by the in- 
 sured. King v. Middletown Ins. Co., 1 Conn., 
 184. 
 
 9. If tlie master sells the vessel from neces- 
 sity, and the sale is justifiable, the insured 
 may recover as for a constructive total loss, 
 though there has been no formal abandonment 
 made. Ihmning v. Merchants Mutual Marine 
 Ins. Co., 57 Me., 108. 
 
 10. She met with a disaster near Vera Cruz, 
 March 26, 1847. A survey was called, and she 
 was condemned and sold April 5th, following. 
 An offer to abandon was made 22d of the 
 same. Immediately after the sale she was re- 
 paired and carried to New Orleans, and then 
 to Bath. Held, if tlie circumstances under 
 which she was placed by the disaster justified 
 the sale, that constituted a total loss; that the 
 subsequent success of the purchaser in repaii- 
 ing and navigating her could not make the 
 sale invalid, nor change a total into a partial 
 loss ; the right to sell as well as to abandon 
 was to be determined by the state of facts at 
 the time the sale was made, and not by subse- 
 quent events ; the rights of the parties were 
 vested by the abandonment, if it was properly 
 made; nor was abandonment necessary tocou- 
 
 699 
 
1399 
 
 TOTAL LOSS (ABSOLUTE OR CONSTRUCTIVE). 
 
 1400 
 
 What constitutes. 
 
 stitute a total loss, if the sale, made by the 
 master, was warranted by the rules of law. 
 Fuller 0. Kennebec Alut. Ins. Oo., 31 Me., 325. 
 
 1 1 . Ou ship. 8he ran on a coral reef be- 
 tween Aspinwall and Port Cabello, was taken 
 to Aspinwall, but no repairs could be pro- 
 cured, and a survey was called. The survey- 
 ors reported her condition and were of opin- 
 ion that the repairs would greatly exceed her 
 value. The master sold her. The purcliaser 
 made slight repairs and navigated her to Bal- 
 timore, where he made other repairs. Notice 
 of the disaster and intention to sell was not 
 given insurers. There was no abandonment. 
 ffeld, if the necessity to sell left no alternative 
 (of which the jury were the judges), the sale 
 was justifiable, and insurers liable, as for a 
 total loss. Priaee v. Ocean Ins. Co., 40 Me., 481. 
 
 12. She encountered a gale, sustained much 
 damage, and while making a port of safety 
 grounded on a reef, but was got oflf and 
 reached port. Sm-veyors reported her un- 
 worthy repairs, and she was sold for the 
 benefit of all concerned. No abandonment 
 was made. Held, the jury were to jtidge of 
 the necessity for the sale, and whether it was 
 made for the interest of all concerned, and in 
 good faith ; if these were found, the insured 
 could recover for a total loss without an offer 
 to abandon. Mutual Safety Ins. Oo. v. Cohen, 
 3 Gill, 459. 
 
 13. Insurers refused to accept an abandon- 
 ment, and the master sold her. Held, if the 
 case was a proper one for abandonment, the 
 master's sale could not affect the right of the 
 insured to recover. Mowry v. Charleston Ins. 
 Co., 6 Rich., 146. 
 
 14. On sugar from Liverpool to Calais or 
 ship's port of discharge in the British chan- 
 nel. She met with heavy weather and put 
 back to Liverpool. The London agent of in- 
 sured communicated with insurers who 
 begged insured to act as if they were unin- 
 sured. A lai-ge portion of the cargo was so 
 badly damaged that its sale became necessary. 
 Insured gave notice of an intention to aban- 
 don the whole and sell it on a day named, 
 which was accordingly done and the whole 
 loss was somewhat more than one-third the 
 amount insured. Held, if tlie cargo was not 
 fit to be sent forward to a market they had a 
 right to abandon it. Oernon v. Royal Ex- 
 change Ass. Co., 6 Taunt., 383; s. c, 1 Holt, N. 
 P., 49; 2 Marsh., 88. 
 
 700 
 
 15. Ship very much shattered by perils of 
 the sea. The master was of opinion that she 
 could not, without imminent peril to the lives 
 of the crew, proceed on her voyage, and 
 could not be repaired for a sum less than 
 her value. He accordingly sold her. She 
 was afterwards navigated to destination with 
 a cargo. Held, the question was not whether, 
 had a different course been pursued by the 
 master, she might eventually have been saved, 
 but whether, exercising the best discretion, 
 the master was justified in abandoning the 
 ship; that if he exercised the same judgment 
 and discretion which he ought to have used 
 had she been uninsured, the insurer was liable 
 for a total loss. Robertson v. Oarruthers, % 
 Starkie, 571. 
 
 16. Ship insured for £8,000, and freight for 
 £4,000, from London to the East Indies, and 
 return. On her voyage home she became so 
 greatly damaged .by sea perils that she was 
 obliged to run back to Calcutta. The expense 
 of repairs would have amounted to £5,000; the 
 captain failed to hypothecate her, and the 
 agents refused to undertake repairs. He sold 
 her for £1,200, and arrived in Lojadon April 
 a5th. May 5th,- notice of abandonment was 
 made. The jury found specially that the mas- 
 ter's sale was justified. Held, a total loss. 
 Bead v. Bonlmm, 3 B. & B., 147; 6 Moore, 397. 
 
 17. The disputed point was whether the 
 master's sale of the vessel was justified. Held, 
 in such a case there can be neither a legal ne- 
 cessity nor a physical necessity ; and therefore 
 it must mean a moral necessity, tliat is to say, 
 whether the circumstances were such that a 
 person of prudent and sound mind would have 
 no doubt as to the course he ought to pursue. 
 That if the master had no means of getting the 
 repairs done at the port of distress, or, if being 
 done, he had no money or was not able to raise 
 any to pay for them, then he would be justifii'd 
 in selling her. Somes v. Sugrue, 4X3. & P., 276. 
 
 18. She was driven back to her port of 
 lading, found unfit for the voyage, it was im- 
 possible to repair her, and she was sold. There 
 were no vessels to carry the cargo to port of 
 destination, and it was sold for nearly the sum 
 insured. Insured abandoned. Held, a total 
 loss of ship, freight and cargo. Manning v. 
 Newnham, 3 Doug., 130 ; 3 Camp., 624 n. 
 
 1 9. Dutch ship, valued £8,000, insured Rot- 
 terdam to Java and Sumatra and back to her 
 port of discharge in Holland. Stranded on 
 
1401 
 
 TOTAL LOSS (ABSOLUTE OR CONSTRUCTIVK). 
 
 1402 
 
 What constitutes. 
 
 Goodwin Sands, and plundered. She was car- 
 Tied tn London, and abandonment made. She 
 was worth £d,833 wlien cast away. Her vSlne 
 on the Sands was £700, with salvage £420. It 
 would have cost, in England, to repair her 
 £4,61S, and she would have been worth £4,700. 
 Ifshe had been entitled to a British register, 
 it ■would have been prudent to repair her. The 
 repairs in Holland would have cost more than 
 her value there (not exceeding £3,915, caused 
 by a disinclination on the part of Holland 
 traders to employ a vessel that had been 
 stranded as she had been). IleM, it was proper 
 to tell the jury that they were to look at all the 
 circumstances attending the ship, and judge 
 ■whether, under all of them, a prudent 
 owner, uninsured, ■would have declined to 
 repair, and if so, 'to find for a total los.^. 
 Young «. Turing, 2 M. & G., 593; 2 Scott N. 
 R, 753. 
 
 20. Ship with a cargo of coals ran upon the 
 beach for the purpose of discharging her car- 
 go; before it ■was finished the wind veered 
 with rough weather and it became necessary 
 to haul her off. In attempting to do so, an an- 
 chor came home and she drifted broadside 
 upon the beach and sustained large damage. 
 Surveyors recommended a sale as she lay. 
 Hull and spars sold for £185. Purchasers got 
 her off and repaired her lor aboui £350. Held, 
 the jury were to consider whether the owners 
 of tlie ship, as prudent persons, exercising 
 sound judgment, would have sold her, had 
 they been uninsured. Domett v. Young, 1 C. 
 & M., 465. 
 
 21. She was wrecked, and the master, a part 
 owner, had her surveyed and sold at Buenos 
 Ayres. The purchaser got her off and repaired 
 her at great expense. Held, it was proper to 
 tell the jury that the loss of the voyage could 
 not create a constructive total loss of the ship ; 
 tliat all the circumstances were to be taken 
 into consideration, if the master did what at 
 the time was best for all parties and sold her, 
 there was a total loss, if otherwise, it was a 
 partial losa only. Doyle v. Dallas, 1 M. & 
 Rob., 48. 
 
 22. On cargo, with the usual memorandum. 
 She was captured, recaptured and sent by the 
 recaptore to Bermuda, where a scarcity of pro- 
 visions prevailed, and in consequence an em- 
 bargo was laid on provisions. The cargo be- 
 ing landed, some of it greatly damaged by sea 
 water, was thrown overboai-d, and some of it 
 
 sold there at a profit. The ship was put up at 
 public sale and purchased at one-fourth her 
 value for the benefit of her owners, who re- 
 paired her. A part of the cargo was repur. 
 chased, reshipped, and carried to Madeira, 
 where she arrived and delivered it. Held, all 
 who abandoned were entitled to recover for a 
 total loss on all the goods insured. Oologan v. 
 London Aa». Co., 5 Mau. & Sel., 447. 
 
 23. She was taken by a cruiser of the 
 United States to New Orleans, where the cap- 
 toi's instituted proceedings in admiralty 
 against ship and cargo. About eight montlis 
 thereafter the court gave judgment against 
 the captor.s, and declared restitution. Up to 
 this time insured treated the seizure as a par- 
 tial loss. Captors appealed July 1st, and about 
 six weeks thereafter insured heard of tlie ap- 
 peal, and then offered an abandonment, which 
 was refused. The prize commissioner applied 
 to the court for permission to sell ship and 
 cargo, of which insured gave insurers notice. 
 The sale could have been prevented by depos- 
 iting the full value of the goods, or giving 
 bond for them in current funds, then at 65 per 
 cent discount from coin. Neither party took 
 any steps to relieve tlie property, and it was 
 sold May 26, 1865, by order of court Held, 
 the captors' appeal gave the insured no right 
 to change their election, hence they had no 
 right, on that ground, to maintain the action 
 as for a total loss; that insured were not 
 bound to give bond or to deposit tlie money 
 for the purpose of preventing a sale, hence the 
 sale was a total loss, occasioned by capture, 
 and insurers were liable. Stringer «. English 
 and Scottish Mut. Ins. Co., 5 L. R. Q. B., .599; 
 18 W. R, i:01 ; 32 L. T. (N. S), 803; 10 B. & 
 S., 770; afllrming s. c, 4 L. R Q. B., 676. 
 
 (b) Of capture, seizure, arrests, de- 
 tention and retardation. 
 
 24. "On her freight and cargo (separate 
 policies on each) from New York to Cape St. 
 Francois, with liberty to proceed to another 
 port should that be blockaded." She was in- 
 structed, if she could not enter because of 
 blockade, to steer toward the Bite of Leogane 
 and to enter Port au Prince or some otlier 
 port in the Bite. She was prevented by a 
 British ship of ■war from entering any port on 
 the island of San Domingo ; but permission 
 was given by the blockading squadron to go 
 
 701 
 
1403 
 
 TOTAL LOSS (ABSOLUTE OR CONSTRUCTIVE). 
 
 1404 
 
 What constitutes. 
 
 to Kingston, wliere she arrived. Slie was pre- 
 vented at Kingston from clearing for Culja. 
 Tlie cargo was sold at Kingston. The pro 
 ceeds invested in produce wirti which she re- 
 turned to New York, and insured abandoned 
 cargo and freight, offering to give credit, in 
 settlement with the underwriters, for the pro- 
 ceeds of the investment, which was refused. 
 Held, the law was clearly with the insured; 
 that he was entitled to recover the value of the 
 cargo delivered at Kingston, and the freight, 
 less the proceeds of the investment. Symondg 
 «. Union Ins. Co., 4 Dall., 417 ; s. c, 1 Wash. 
 C. C, 382. 
 
 25. Ship and cargo, property of British 
 subjects, captured by French privateer and 
 carried into Havana. They were claimed by an 
 English merchant, for the British owners, and 
 an order for restitution given by the Spanish 
 government, security being given for the ap- 
 praised value, ship, f9,655, cargo, $22,400, to 
 abide the issue of the appeal taken by captor 
 from the order of restitution. The master had 
 been removed and sent to the United States at 
 the time of the capture; but the first and second 
 mates gave security, by Felix Crucet, and the 
 ship and cargo were delivered to him, for 
 account of the original owners, subject to his 
 orders till he should be finally indemnified 
 and released from his suretyship. He sent 
 ship and cargo direct to New York, -and the 
 consignee eflfected insurance for him. Sl.e 
 sailed on the voyage and was captured off 
 Sandy Hook, taken to Halifax, there libeled 
 in the court of admiralty as prize, claimed by 
 the master for Crucet, which was rejected, and 
 she was pronounced to be the property of 
 English subjects, recaptured by liis majesty's 
 ship of war, and decreed to be restored to her 
 original British owners, on payment to the re- 
 captors one-eighth of the whole value as sal- 
 vage and costs. From this decree Crucet 
 appealed, but vessel and cargo were delivered 
 to the agent of the British owners, on security 
 given, and by him sent to England. Insurers 
 were notified of the capture and agreed to pay 
 a just portion of the expense of recovering 
 the property. No offer to abandon was made 
 until after the decree of the vice admiralty 
 court was received by insured. On the trial 
 Grucet's orders to his agents to insure, and 
 the nature of his interest, communicated to the 
 insurers at the time of effecting the insurance, 
 and the record of the proceedings in the vice 
 702 
 
 admiralty court, the hypothecation to Crucet, 
 bill of lading and invoice were given in evi- 
 dence. Held, upon abandonment, the insurers 
 acquired all Grucet's rights and remedies 
 against the British owners ; that the loss of 
 possession would have made it necessary for 
 him to pursue the property through an ex- 
 pensive, ti'oublesome and doubtful medium, 
 and that therefore he had a riglit to consider 
 the occurrence as a total loss, and to recover 
 the sum insured. Sussdl v. Union Ins. Co., 4 
 Dall., 421. 
 
 26. She was captured by British cruisers, 
 carried into port, and there libeled as prize. 
 A decree of restitution was subsequently ob- 
 tained. A part owner, one of the insured, 
 was with her when the decree of restitution 
 was made; but before restortition, and without 
 any knowledge of the decree, the agent of the 
 owners, the person who procured the insur- 
 ance, offered to abandon, which was refused. 
 Held, the bare taking of the vessel did not 
 constitute a total loss ; but when the captor car- 
 ried her into port and completed his examina- 
 tion, instead of releasing her, he proceeded 
 to libel her as prize; that then the property 
 insured was no longer subject to the command 
 of the owner, and the loss became complete; 
 nor was this affected by the subsequent decree 
 of acquittal, nor by the fact that she after- 
 wards proceeded on her voyage, nor by the 
 f.ict tliat one of the owners was with her and 
 cognizant of it, for the rights of the parties 
 were fixed at the time of the abandonment. 
 Butilh V. Gatliff 4 Dall., 446. 
 
 27. The ship, in the course of the outward 
 voyage, and before its termination, became a 
 total wreck, and the cargo being perishable in 
 its nature, though not injured to one-half its 
 value, a sale thereof became necessary, and 
 the further prosecution of the voyage with the 
 same ship became impracticable. Held, a 
 technical total loss by the breaking up of the 
 voyage. Columbian Ins. Co. v. Catlett, 12 
 Wheat., 383. 
 
 28. She was captured ; all her men were tak- 
 en out except two. In less than three days she 
 was recaptured by a British sloop of war, car- 
 ried to Kingston and libeled for salvage. But 
 she was claimed by insurers, who alleged tliat 
 she had been abandoned to them. One-eighth 
 her value was decreed to tlie salvors. Claim- 
 ant made no efforts to agree witli the capt/jrs 
 as to the value of the vessel, and she was sold 
 
Ii05 
 
 TOTAL LOSS (ABSOLUTE OR CONSTRUCTIVE). 
 
 1406 
 
 What canstitutes. 
 
 for $915, and her cargo brought f 1,000. Costs, 
 charges and commissioDS amounted to $909, 
 and salvage to $239. Held, the loss was total. 
 Marine Iiu. Co. v. Tucker, 3 Cranch, 357. 
 
 29. On freight, from New York to Batavia, 
 and back to New York. She was captured by 
 a British armed vessel, her mate and twenty- 
 one seamen taken out, and fifteen seamen and 
 two British officers put on board, February 10, 
 1805. She was carried into Bermuda on the 
 12th, and libeled as prize of war. The second 
 mate, who had been put on board another ves- 
 sel, arrived in New York February 26th, and 
 intelligence of what had occurred was then 
 given the insured, who made an effort of aban- 
 donment two days later. She was acquitted 
 April 20, 18(S, from which an appeal was ta- 
 ken, as to the cargo only, but it was delivered 
 to the owners thereof May 8th, upon security 
 given to abide the result of the appeal. Ship and 
 cargo arrived in New York July 8th. Insurers 
 of freight had refused to give any security for 
 the relief of the cargo owner. Held, a com- 
 plete arrest by a belligerent is, for the time, a 
 total loss; and, where there is a complete tak- 
 ing at sea by a belligerent, who has full pos- 
 session of the vessel as prize, and continues 
 that possession to the time of abandonment, 
 tliere exists, in point of law, a total loss; and 
 the act of abandonment vests the right to the 
 thing abandoned in the insurer, and the 
 amount insured in the assured. Rhinelantier 
 v. ImuraneeCo. ef Pennsylvania, 4 Cranch, 29. 
 
 30. Two policies, one valued on the vessel, 
 the other open on the cargo, from New York 
 to Gibraltar. She was captured, carried into 
 Algeziras ; the cargo was not condemned, but 
 she was not permitted to sail with it without 
 security that it would not be carried to a Brit- 
 ish port in the Mediterranean. The supercar- 
 go sold it, and she took another and sailed for 
 New York. Held, the seizure, carrying into 
 Algeziras, and the prohibition against the car- 
 go was a complete destruction of the voyage, 
 and authorized an abandonment of it; hence 
 the supercargo, acting for the interests of all 
 concerned, had a right to sell it Hurtin s. 
 Phanix Ins. Co., 1 Wash. C. C. 400. 
 
 31. On goods. The risk of illicit trade 
 was taken. They were parUy illicit. She 
 arrived at Kingston, Jamaica, October 12th. 
 The illicit goods were libeled, and the 
 value of those saved was less than half the 
 Bum insured. The insured abandoned. Held, 
 
 the loss was constructively total. Oardiner v. 
 Smith, 1 Johns. C, 141. 
 
 32. On goods from New York to Bai-racoa, 
 with liberty to touch at one or two ports on 
 the north side of Cuba. She arrived at Barra- 
 coa June 26th, where she remained without 
 being able to sell the cargo till October 30lh. 
 She was forcibly entered by pirates, who car- 
 ried away a large quantity of the goods and 
 $4,780 in money. She sailed for Havana, but 
 was compelled by stress of weather and short- 
 ness of provisions, to put in at New Provi- 
 dence, where she arrived, December l.^ith ; and 
 where the remnant of the cargo was sold for 
 $3,701. (The invoice of the vthole cargo was 
 $16,500.) The voyage was there broken up 
 and an abandonment made. Held, the aban- 
 donment was effectual and warranted a recov- 
 ery as for a total loss. Oilfert «. Hallet, 2 
 Johns. C, 296. 
 
 33. Ship and freight insured in two poli- 
 cies by the same insurers. New York to the 
 River La Plata, thence to a port in Europe. 
 February 13th, she arrived at Buenos Ayres 
 and delivered her cargo, but was embargoed 
 till October 1st, when she sailed for Havre Ue 
 Grace, at which port she arrived in December. 
 Insurers offered to abandon June 29lh, pre- 
 ceding, but it was refused. Held, a total 
 loss. Litingston c. Columbian Ins. Co., 8 
 Johns., 49. 
 
 34. Policy on cargo from New York to 
 Hamburg. She was boarded in the English 
 channel by a British ship of war, and forbid- 
 den to proceed to the Elbe. She was again 
 boarded by another British ship of war and 
 forbidden to proceed to Hamburg, but advised 
 to go into Portsmouth and take advice of the 
 agent of the ship owner. She went to Spit- 
 head, at which place she was recommended to 
 go to Embden, where she delivered the cargo 
 in g6od order. While at Embden she received 
 large damage by collision with another vessel 
 in a gale. Held, the port of destination being 
 actually blockaded, the right to abandon ex- 
 isted, and if that right was seasonably ex- 
 ercised, everything done afterwards in good 
 faith must be considered as done for account 
 of the insurers. Schmidt o. United Ins. Co., I 
 Johns., 249. 
 
 35. On ship from New York to Bordeaux 
 and back, was captured when returning, car- 
 ried into England January 24, 1808, and aban- 
 doned June 1st following. The capture was 
 
 703 
 
1407 
 
 TOTAL LOSS (ABSOLUTE OR CONSTRUCTIVE). 
 
 1408 
 
 What constitutes. 
 
 defended, cargo restored, and vessel con- 
 demned March 29, 1809. Both parties ap- 
 pealed, but the master effected a compromise, 
 and both appeals were witltdrawn. He bought 
 her of the captors, sailed for New York, where 
 she arrived and delivered cargo. But to pro- 
 cure money to pay for the vessel, and the ex- 
 penses arising from the capture, he gave a 
 bottomry bond, ffetd, the abandonment fixed 
 the rights of the parties and the insured were 
 nut bound by what the master did after June 
 1st; and that the loss was total. Jwnel s. Ma- 
 rine Int. Co., 7 Johns., 412. 
 
 36. On cargo. Ship and cargo captured by 
 tlie French, carried into Ferrsga, where resti- 
 tution was ordered with costs and charges. 
 Captors appealed, and the cargo was delivered 
 upon bonds given for its appraised value, 
 flity per cent, over prime cost, and greater 
 than the sum insured. It was delivered 
 at point of destination and sold for more 
 than the appraised value. It was finally con- 
 demned as lawful prize ; and the consignees, 
 having been obliged to pay their bond, sued 
 on the policy. Held, a recovery could be had 
 without an abandonment, for the amount paid 
 on the bond ; because the loss here was equal 
 to a total loss. Oracie v. New York Int. Co., 8 
 Johns., 237. 
 
 37. The vessel and cargo were seized by 
 the French when they arrived at San Antonio, 
 who carried the cargo to Bayonne, but never 
 restored it ; the ship was not restored until ten 
 months after capture, on payment of salvage, 
 and then she was left naked of any documents 
 or voucher to give her protection on the high 
 seas. Hdd, the capture continued its destruct- 
 ive effects to the time of abandonment, which 
 was made after her restoration ; that she was 
 not then so restored as to have legal capacity 
 to perform the voyage. Post b. Phanix Ins. 
 Co., 10 Johns., 80. 
 
 38. She was captured, recaptured and car- 
 ried into an English port and libeled for 
 salvage. She was sold by order of court, pur- 
 chased by the master and delivered to her 
 owners, who credited insurers with the pro- 
 ceeds nf the sale and sued for a total loss. 
 ITeld, that insured was not bound to abandon, 
 and that he was entitled to recover as for a 
 total loss. Storer v. Gray, 2 Mass., 565. But 
 see Oliver «. Newhiryport Ins. Co., 3 Mass., 
 37, where the facts were in all respects 
 similar except there was no decree of sale, 
 
 704 
 
 and the court held it was not a case of total 
 loss. 
 
 39. Ship arrested within three days' sail of 
 her port, carried to Bermuda and libeled a 
 pi'ize. Abandonment made after insured 
 heard of capture and while she was detained. 
 Insurers refused to accept abandonment. She 
 was afterwards released and arrived at port 
 of destination. Held, a total loss. Zee v. 
 Boardman, 3 Mass., 237. 
 
 40. The cargo being detained and claimed 
 as prize, an abandonment was offered. Held^ 
 a total loss, notwithstanding the cargo was 
 afterwards released. Dorr e. New England 
 Marine Ins. Co., 4 Mass., 221. 
 
 41. On ship for twenty-four calender 
 months : " Risk of illicit ti-ade or of trading 
 from one belligerent port to another ex- 
 cepted." Vessel captured and taken, Feb- 
 ruary 5, 1809, from the coast of China for 
 Calcutta, where she was afterwards condemned 
 as lawful prize for the captors. June S, 1809, 
 insured received information of the capture. 
 After the term had elapsed she was condemned 
 at Calcutta, and insured then abandoned. 
 Held, the condemnation and sale at Calcutta 
 were parts of the same loss ; that insured was 
 entitled to recover for a total loss. Dorr v. 
 New England Ins. Co., 11 Mass., 1. 
 
 42. The policy provided that the insured 
 shall not abandon for the amount of damage 
 merely, unless the amount which the insurer 
 would be liable to pay under an adjustment 
 as of partial loss, exceeds half the amount in- 
 sured. Held, the cost of repairing the damage, 
 less one-third new for old, must exceed half her 
 value, before an abandonment can be allowed. 
 Winn V. Columbian Ins. Co., 12 Pick., 379. 
 
 43. Ship insured for a term of twelve months 
 at a premium of four and a half per cent, and 
 at that rate for a longer or a shorter period, 
 warranting two and a half per cent, for six 
 months. She was captured just before the ex- 
 piration of six montlis, and afterwards aban- 
 doned. HM, the abandonment had relation 
 to the time of the capture, because the results 
 showed a total loss at that time ; and the in- 
 surer was entitled to premium for six months 
 only. Lowering e. Mercantile Ins. Co., 13 
 Pick., 348. 
 
 44. On ves-iel and outfits, including loss by 
 barratry, " Free from loss or expense arising 
 tcora capture, seizure, or detention." She was 
 barratroasly seized by a part of the crew who 
 
1409 
 
 TOTAL LOSS (ABSOLUTE OR CONSTRUCTIVE). 
 
 UIG 
 
 What oonstdtates. 
 
 killed the master and third mate, and badly- 
 wounded the first and second officers. The 
 mutineers retained possession for nine days, 
 and then left her in the hands of the wounded 
 ofiScers, having damaged her by fire, carried 
 away a quantity of the outfits, and destroyed 
 the whaling gear. After her restoration she 
 arriyed at a port of necessity, unfit to continue 
 the voyage. There was no means within tlie 
 reach or control of the officers in charge to 
 refit, reofficer, or reman her. Seld, the right 
 to abandon, and claim for a constructive total 
 loss exists, whenever by reason of a peril in- 
 sured against, the vessel for all the purposes 
 of the voyage is gone from the present control 
 of the owner, and the time when she will be 
 returned in a state to resume the voyage is un- 
 certain or unreasonably distant, or the risk of 
 delay smd exjiense disproportionate to the ex- 
 pected benefits and objects of the voyage. 
 ffreeru «. PaeiJUs Mut. Ins. Co., 9 Allen, 217. 
 
 43. Where the property is in esse, but the 
 insured has no power to take it from the per- 
 son in whose possession it remains, it is lost 
 to the insured, and the insurer must answer 
 for it if the loss was a peril insured against 
 It is immaterial in such case when the aban- 
 donment was made. Brown v. Phanix Ins. Co., 
 i Binn., 445 
 
 46. The vessel was illegaly seized, master 
 and crew thrown into prison, and he was 
 threatened with death if he persisted in mak- 
 ing claim to her. Held, insured had the right 
 to abandon and recover as for a total loss 
 (citing Melver o. Henderson, 4 Mau. & Sel., 
 576). Thompson v. Mississipi Marine and Fire 
 In*. Co., La. (O. S.), 328. 
 
 47. Time policy for three months against 
 capture. She was captured February 2, 1744, 
 and was in the possession of the enemy till 
 the P. M. of the 5th, when she was retaken by 
 a privateer, who carried her into Lisbon, a 
 neutral port. Judgment was given April 29, 
 1745, " that she should be restored to the 
 owners on payment of one-third of the value 
 of the salvage." Held, a total loss. Pond v. 
 King, 1 Wils., 101. 
 
 48. The ship insured was taken by the 
 French, some of the goods had been previ- 
 ously jettisoned. An oflfer to abandon was 
 made. ITeM, the loss was total. Goss v. Withers, 
 2 Burr., 683; 2 Ld. Kenyon, 325. 
 
 49. She was captured within a short dis- 
 tance of the port of destination, carried in, 
 
 45 
 
 and the cargo sold by the original consignees. 
 Held, it never reached the agents of the in- 
 sured, and if it had, was to be treated as 
 carried into any hostile port and sold by the 
 captors. Marshall n. Parker, 2 Camp., 69. 
 
 50. She was captured, carried into Gibral- 
 tar and restored; but the goods were detained 
 for further information. They were unladen 
 and sold, but a final decree was made, that 
 the value thereof should be restored. Held, a 
 total loss. Visger v. PrescoU, 5 Esp., 184. 
 
 51. She was captured; all the crew and 
 part of the cargo taken out, and the rigging 
 taken away. In that condition she was re- 
 captured and taken to New York. The mas- 
 ter arrived in New York June 23d, found her 
 there and took possession of her. There were 
 then but fifty-seven bogheads of sugar on board, 
 part of which was damaged by sea water. The 
 salvage amounted to about the value of for^ 
 bogheads of the sugar. No sailors could be pro- 
 cured. He sold the cargo, left the ship at New 
 York and returned to London where he arrived 
 February following. Insured was not in- 
 formed till that time of the disaster. Held, a 
 total loss. MiUes v. Fletcher, 1 Doug., 231. 
 
 52. An American, licensed to export salt- 
 petre from Calcutta to America, insured it. 
 Ship was seized by a British ship of war, and 
 the cargo condemned, unladen and sold 
 by order of admiralty court at the Cape of 
 Good Hope, which order was reversed and 
 the property ordered restored or its value 
 paid to the owner on payment of captors 
 costs; no notice of abandonment was made. 
 Held, a total loss when it was unshipped and 
 sold under the order of court. Mullet v. 
 ahedden, 18 East, 304. 
 
 53. On ship valued at £3,000, from Liver- 
 pool to Sierra Leone. A French frigate 
 captored and plundered the ship, and threw 
 overboard a large part of the cargo, the great 
 est part of her stores, provisions and water, 
 thirteen out of sixteen guns, all her small 
 arms, all her ammunition, long boat, instru- 
 ments, register and all her papers, except the 
 log book. The captors then gave her to the 
 master of a Portuguese schooner previouslj' 
 captured and burned. The master of the 
 Portuguese schooner, her own master, fourteen 
 ofthecrew, fourteen other British sailors and 
 twenty-one of the schooner's crew were put 
 aboard, uid they were ordered to make for 
 the nearest land, Buena Vista, which place 
 
 705 
 
1411 
 
 TOTAL LOSS (ABSOLUTE OR CONSTRUCTIVE). 
 
 1412 
 
 What constitutes. 
 
 she reached in two days ; but the crew became 
 ungovernable and insisted on going to one of 
 the Western islands ; she accordingly arrived 
 at Fayal in about twenty days, where the 
 Portuguese master claimed ship and cargo as a 
 donation from the French commander, and 
 proceedings were commenced in admiralty 
 there, and sentence pronounced in favor 
 of him April 1st. Insured received intelli- 
 gence April 4th, and abandoned. The re- 
 mainder of the cargo was landed and sold at 
 Fayal. But she was restored, sailed May 12thf 
 and arrived in Liverpool on the 29th. Sfie 
 would not have brought more than £600 in 
 Fayal, but was worth £1,300 in Liverpool. 
 The expense of navigating her to Liverpool 
 was £221. An appeal from the order of resti- 
 tution was pending, when she sailed from 
 Fayal ; £427 were deposited at Fayal to abide 
 the event of the appeal. Held, the loss was 
 total. M'lver v. Ilenderaon, 4 Mau. & Sel., 
 576. 
 
 54. " On advances for the transport of Chi- 
 nese emigrants, for their outfit and provisions, 
 to be paid on the arrival of the emigrants at 
 the port of destination, against pirates, rovers, 
 thieves, barratry of the master and mariners, 
 and all other losses and misfortunes." The 
 declaration alleged a total loss, for that the emi- 
 grants, piratically and feloniously, had mur- 
 dered the master and part of the crew, and had 
 feloniously stolen and carried away the ship. 
 Insurer pleaded : First. So soon as the emi- 
 grants had committed the murder and ob- 
 tained possession of the vessel they steered 
 her for the nearest Jand, for the purpose of 
 landing, and refused to and would not proceed 
 upon the voyage; that the vessel was then 
 suSacient to proceed to port; that the re- 
 mainder of the crew could have navigated 
 her there, and were ready and willing so to 
 do, and convey the emigrants to port if they 
 would have gone ; but they would not go, and 
 by reason of such refusal, and no other, the 
 transportation was never completed. Second. 
 Thatthe emigrants were unwilling to be carried 
 on the voyage, and committed the murder and 
 took possession of the vessel for the purpose 
 of landing and escaping from the voyage, and 
 for no other purpose. Held, the murder of 
 the master and part of the crew, and seizure 
 of the vessel, as alleged in the declaration and 
 admitted by the pleas, was, if not a piratical 
 act, one of the same nature, and therefore 
 706 
 
 Within the perils insured against; that as the 
 loss was complete the moment the vessel 
 was seized, the unwillingness of the emigrants 
 to be carried to the point of destination was 
 immaterial, for that was remotely the cause 
 of the loss. Palmer v. Naylor, 10 Exchr., 382 ; 
 affirming s. c, 8 id., 739 ; s. c, 23 L. J. Ex., 
 328; 2W. R.,621. 
 
 55. The perils insured against were {inter 
 alia) " takings at sea, arrests, restraints and 
 detainments, of all kings, princes, and people, 
 etc." She was seized near Ambriz by a 
 queen's ship, under statute of 5 Geo. IV, ch. 
 114, sec. 4, and was sent with the cargo to St. 
 Helena for adjudication, September 21, 1854.. 
 She was condemned in the vice admiralty 
 court of St. Helena, November 20, 1854, and 
 shippers of cargo were also condemned in 
 penalties amounting to double the value of the 
 goods and costs, and the goods w^ere ordered 
 to be kept on deposit until payment of penalty 
 and costs. She was sold by order of court, 
 together with that portion of the cargo which 
 was perishable, in December, 1854, and the 
 residue of the goods were detained at St. Hel- 
 ena, by order of court. On arrival of this in- 
 formation in England, insured on cargo aban. 
 doned December 13, 1854, and an appeal to 
 the queen in council was lodged January 31, 
 1855. Possession of the goods that remained in 
 specie at St. Helena could not have been ob- 
 tained before December, 1856, and then only 
 by giving security for the invoice cost. Tin 
 privy council reversed the decree, and ordered 
 restitution of ship and cargo, February 8, 1858. 
 At that time the goods remaining in specie at 
 St. Helena had greatly deteriorated in value, 
 and it would have cost more than they were 
 worth at the point of destination to have carried 
 them there. Held, the wrongful seizure was a 
 loss within the policy ; that the notice of aban- 
 donment made the loss total, and it so cuntin- 
 ued until the time action was brought. Loza- 
 no V. Jamon, 2 El. & El., 160 ; 8. c, 5 Jur. (N. 
 8.), 1401 ; 28 L. J. Q. B., 337 ; 7 W. K., 654. 
 
 56. " On silks, at and from Japan or Shang- 
 hai to Marsailles, Leghorn or London, nia 
 Marseilles or Southampton, and while remain 
 ing there for transit, with leave to call at any 
 ports or places in or out of the way, for all 
 purposes, including all risks of craft to and 
 from the steamers per overland or ma Suez 
 Canal, against seas, men of war, enemies, sur- 
 prisals, takings at sea, arrests, restraints, and 
 
1413 
 
 TOTAL LOSS (ABSOLUTE OR CONSTRUCTIVE). 
 
 1414 
 
 What oonstitates. 
 
 detainments of all kings, etc." Memorandum 
 in the margin: "The silks insured by this 
 policy shall be shipped by Peninsular and 
 Oriental Company, Messageries Imperiales 
 steamers, or the steameR of the Mercantile 
 Trading Co^ of Liverpool, only." They were 
 carried from Shanghai to Hong Kong in a 
 Messageries Imperial steamer, there tran- 
 shipped to another steamer of the same com- 
 pany and carried through the Suez Canal to 
 Marseilles. The through freight was paid to 
 that company for the whole transportation. 
 At tlie time of making the policy the steamers 
 of the Messageries Imperiales ran no further 
 than Marseilles, and goods, in the ordinary 
 course of business, were nerer carried from 
 Japan in any other way, and were always sent 
 by that company orerland by the Lyons Rail- 
 way from Marsailles to Paris, thence by the 
 Northern Railway to Bologne, thence to Lon- 
 don, and this course of the business was well 
 known among insurers generally. The goods 
 arrived at the railway station in Paris, Sep- 
 tember 13, 1870. The German armies were 
 then advancing upon Paris ; and, before the 
 goods were removed Paris was completely 
 surrounded and beseiged on the 19th; and 
 while this continued, October 7, 1870, insured 
 gave notice of abandonment. Subsequently 
 tliey arrived in London in an undamaged con- 
 dition, March 20, 1871. Jleld, insured were 
 entitled to abandon and recover as for a total 
 loss, notwithstanding the goods were safe 
 after the action was brought. Sodoeanaehi v. 
 EUiott, 8 L. R C. P., 649; 42 L. J. C. P., 247; 
 21 W. R, 810; 28 L. T. (N. S.), 840; affirmed 
 in Ex. Ch., 9 L. R. C. P^ 518; 43 L. J. C. P., 
 25o;31L.T.{N. S.),239. 
 
 57. " On goods, interest or no interest, from 
 Jamaica to Bristol." She was taken by a 
 Spanish privateer, carried into Mores, a port 
 in Spain, and then cutout by an English ship. 
 Hdi, carrying into iwrt and detention for 
 eight days constituted a total loss, than v. 
 IHcker, 2 Strange, 1250. 
 
 58. On brig, furniture and cargo for twelve 
 months from December 29, 1825, valued 
 £2,700. She received considerable injury on 
 the voyage, and came to anchor at the Falk- 
 land Islands in West Point Bay, May 11, 1826 ; 
 and was there driven from her anchors up- 
 on the rocks, where she remained until the 
 beginning of July; and then by the assistance 
 of the crews of other vessels she was got off 
 
 and pursued her voyage to Callao. On her 
 arrival there she was arrested at the suit of the 
 master of one of the vessels who aided in get- 
 ting her off, on a claim for salvage. This ar- 
 rest took place before she was moored in the 
 harbor November 24, 1825. The owners, on 
 receiving notice of the arrest, offered to aban- 
 don. The amount of salvage was ascertained 
 by arbitrators; but as the money could not be 
 obtained to satisfy it, the admiralty court de- 
 creed January 12, 1827, that she should be at- 
 tached and sold to satisfy it. She was sold 
 January 20th for $3,100, the whole of which 
 was consumed in the payment of salvage, auc- 
 tioneer's fees, brokerage, law costs, etc. Sdd, 
 the plaintiff had a right to abandon so soon as 
 he heard of the seizure; that the vessel then 
 became a total loss, and by relation within 
 the period insured. Smith o. SobiTison, Hayes, 
 125. 
 
 (e) Of perils of the seas. 
 
 59. On clothes and the proceeds thereof, 
 on a sealing voyage for seal and oil in the 
 South seas, and back to the United States. 
 She was wrecked on Refreshment Island 
 when she had about ninety barrels of whale 
 and elephant oil and thirty-six seal skins; 
 everything was lost except the seal skins and 
 about fifty barrels of whale oil. According 
 to custom, clothing, bedding, and stores of 
 all kinds for the use of the crew during the 
 voyage, were carried and sold to the crew 
 during the voyage. The crew were debited 
 with all they received and credited at the end 
 of the voyage with their proportion of the 
 proceeds of the catchings. The insured 
 shipped the clothes insured for the master to 
 sell them to the crew, for which he was to lie 
 paid a commission of seven per cent. ; about 
 $950 of the clothing had been sold to flie 
 crew and there remained on board at the time 
 of the wreck, $50 or $100 of it which was 
 lost; but the interest which the crew had in 
 the cargo sent home was insufficient to repay 
 the advances the owners had made to them. 
 Hdd, though it was contemplated that the 
 clothing should be sold, it was never contem- 
 plated that the proceeds, in a strict sense, 
 should be invested in any other property dur- 
 ing the voyage. The real object of the policy 
 was to cover the risks of the shippers arising 
 from the loss of the goods or the frusfration of 
 
 107 
 
1415 
 
 TOTAL LOSS (ABSOLUFE OR CONSTRUCTIVE). 
 
 1416 
 
 What constitutes. 
 
 the voyage ; if the voyage should be successful, 
 the shipper confidently looked to the proceeds 
 of the adventure for the due payment of the 
 sales made to the seamen; and so soon as the 
 goods were sold to the seamen, the shipper ac- 
 quired an interest in the voyage equal to the 
 sales; nor was it marine perils alone, to the 
 goods themselves while they were unsold, that 
 the policy was intended to protect, but it was 
 against a loss of the voyage and adventure, 
 and was analogous to insurance upon outfits 
 in a fishing or whaling voyage and hence in- 
 surers were liable for a total loss, Hancox v. 
 Pishing Ins. Co., 3 Sumn., 133. 
 
 60. " On commissions." Ship was com- 
 pelled by stress of weather to put into St. 
 Kitts, where the cargo was necessarily sold, 
 and the proceeds were partly invested in 
 the .produce of the island. Held, as the 
 return cargo never ai-rived at the port of 
 destination, insured was entitled to recover. 
 Ifew York Ins. Co. v. Sobinson, 1 Johns., 
 61R. 
 
 61. On ship. She met with heavy gales, 
 sprung a leak, pumps became choked with 
 corn, part of cargo was thrown overboard and 
 the mainmast cut away. She reached point 
 of destination, but could not be repaired there 
 for want of materials, nor could she have been 
 sold for enough to pay for the repairs. Held, 
 a total loss. Stagg ■o. United Ins. Co., 8 Johns. 
 C, 34. 
 
 62. Vessel lying at anchor commenced to 
 drag stern foremost upon a reef. Both cables 
 were cut and she became fast upon Bagged 
 Staff. She bilged, and everything was afloat 
 fore and aft. The following day the masts 
 were cut away to prevent them working 
 through the bottom. Held, a total loss. 
 Walker v. United States Ins. Co., 11 S. & E., 61. 
 
 63. On ship at and from Liverpool to New 
 York, thence to any other port in the United 
 States or to Quebec, thence to a port of dis- 
 charge in the United Kingdom, until she hath 
 moored at anchor, in good safety, at her place 
 of destination, and for such period afterwards 
 as she shall be there occupied in discharging 
 her cargo, not exceeding ten days from the 
 date of reporting at the custom house. There 
 was a policy on flreight in similar terms. She 
 took a cargo, chiefly of timber, at Quebec, and 
 sailed July 14th, bound for Liverpool. She 
 ran upon an iceberg, carried away the bow- 
 sprit, stove in the bows,' received other serious 
 
 708 
 
 damage, and became water logged; but the 
 timber kept her afloat, and by great exertions 
 she reached Point Lynas, a short distance 
 from the Mersey, took a pilot and proceeded 
 for Liverpool, arriving off Bnmswick pier 
 head August 11th. She was moored outside 
 the dock gates, laid alongside the pier head in 
 the open river, and when the tide went out she 
 grounded, fell over, and sustained much addi- 
 tional damage. Holes were bored in her bot- 
 tom, which permitted the water to pass out; 
 they were closed, and she floated with the 
 rising tide, was carried into the Bmnsirick 
 basin, and the following day taken into dock 
 and discharged cargo, none of which was 
 taken out till she was ultimately placed in the 
 dock. It would have cost £3,000 to £4,000 to 
 repair all her injuries. The insured offered to 
 abandon, but the insurers refused to accept it. 
 The freight actually earned was paid to her 
 owners, £1,402 2s. 2d. Held, the insured were 
 entitled to recover for a total loss; but where 
 the subject insured is not actually annihilated, 
 and the insured is entitled to claim, and does 
 claim for a total loss, he must give up to the 
 underwriters all that remains of the property 
 insured, together with all beneflt or advantage 
 that belongs to or was incident to it; the 
 freight which the ship was in the course of 
 earning was a benefit or advantage belonging 
 to her, and became the property of the under- 
 writers on ship when they paid a total loss. 
 Bteaart v. Oreenocik Marine Ins. Co., 2 H. L 
 Cas., 159 ; 1 Macq. H. L. Cas., 383. 
 
 64. " On ship valued, £17,500, at and from 
 China to Madras and back to China." The 
 insured had paid £11,000 for her. She was 
 dismasted, and the masts and rigging dragged 
 under her bottom, and very much injured her 
 copper and wood sheathing. It would have 
 cost £10,500 to make her seaworthy, and then 
 she would have been worth not over £9,000. 
 The hull appeared to be sound, and she made 
 little or no water. Held, a total loss for £17,500. 
 Manning v. Irving, 1 C. B., 168 ; s. c, 2 C. B., 
 784; s. c, affirmed. House of Lords, C C. B., 
 391; 1 n. L. Cas., 287. 
 
 65. The ship was so much injured by perils 
 of the sea that she was not repairable exce|)t 
 at an expense exceeding her value when 
 repaired. Held, it was a total loss without 
 abandonment. Cambridge •d. Anderton, 3 B. & 
 C, 691; 8. c, 1 C. & P., 313; 4 D. & K., 203; 
 B. & M., 60; 3 L. J. E. B., 141. 
 
1417 
 
 TOTAL LOSS (ABSOLUTE OR CONSTRUCTIVE). 
 
 Iil8 
 
 What does not constitute. 
 
 66. Ship became very leaky, and the crew, 
 acting bona Jide for the preservation of their 
 lives, deserted her at sea. She was found 
 on the following day, taken into port, repaired 
 and sent home, subject to salvage and repairs, 
 exceeding her value. The insured abandoned 
 before they knew of her safety. Held, a total 
 loss. MotdsworOi e. ITwe, 7 B. & C, 794 ; 6 L. 
 J. K. B., 134; 1 M. & R, 673. 
 
 67. She was valued in the policy at £3,000, 
 and damaged by perils of the sea which would 
 have required £1,450 to repair. The jury 
 found she was not worth repairing. Held, a 
 total loss. Alien v. Sugrue, 8 B. & C, 561 ; 7 
 L. J. K. B., 53. 
 
 6§. "Warranted ftee from average unless 
 general." She was placed in so much peril 
 that the crew, to save their lives, deserted her 
 and the owners abandoned the cargo to in- 
 surers. But fishermen found and towed her 
 into port, where she was repaired. The cargo 
 was in such a damaged condition that it 
 would not have been worth anything had it 
 been sent to port of destination. Seld, a total 
 loss. Parry v. Aherdein, 9 B. & C, 411 ; 4 M. 
 &R, 343. 
 
 69. On com valued at £217. It was so 
 damaged that it sold for £67, and the freight 
 was £80. Held, a total loss. Bojifield e. Broun, 
 S Strange, 1065. 
 
 (d) Of missing ships. 
 
 70. Insured proved that the vessel was at- 
 tacked by a Spanish privateer, made prize, 
 and carried into Porto Rico. Tliree years had 
 elap.<«ed, and nothing had Ijeen heard of her. 
 Held, no sentence of condemnation was neces- 
 sarj- ; that the voyage having been ended by 
 the capture, the insured had a right to recover. 
 Buan c. Gardner, 1 Wash. C. C, 145. 
 
 71. On cargo, from North Carolina for 
 New York. She sailed February 16, 1802, 
 and was never heard of. An abandonment 
 was made February 17, 1803. Held, evidence 
 of a total loss. Cfordon v. Bourne, 2 Johns., 150. 
 
 72. The plaintiff proved that the ship was 
 expected to arrive at her port of departure in 
 Harch, 1846 ; that she had never been heard 
 of from November 18, 1845; that the fam- 
 ily of her master had not heard from him 
 since October 15, 1845, when the vessel was at 
 Honolulu ; that tlie master of a whaling vessel 
 taw her at the Sandwich Islands in October, 
 
 1845, when she got under weigh to return 
 home; that she was deep in the water, and 
 appeared fit for the voyage, which usually 
 occupied five months. Held, a prima facie 
 case of the loss. Child b. Sun Mut. Ins. Co., 
 3 Sandf., 26. 
 
 73. Evidence that the vessel sailed on the 
 voyage with the goods on board, that after her 
 departure a report was heard at the place of 
 sailing that she had foundered at sea, and the 
 crew saved, and that she had never been heard 
 of. Held, prima fade evidence of her loss. 
 Koiter o. Reed, 6 B. «fc C. 19. 
 
 74. No time is fixed within which a missing 
 ship sliall be presumed lost ; but the question 
 of loss is to be governed by the circumstances 
 of the particular case ; and in this case the 
 ship had not been heard of for nine months. 
 Held, she was lost Houstman v. T/iomton, 
 Holt N. P., 242. 
 
 75. Ship sailed from an English to a foreign 
 port, and was never heard of. Held, it was suf- 
 ficieut to prove that she had never been heard 
 of in England ; and that it was not necessary 
 to call witnesses at the port of destination to 
 prove that she never arrived there. ZVoenUoto 
 o. Ostein, 2 Camp., 85. 
 
 76. She sailed upon her intended voyage, 
 and nothing was ever heard of her at her des- 
 tined port. It was proved that it was stated 
 and rumored at the destined port she was lost, 
 and that hei crew had survived. Held, the 
 rumor that the crew had survived was not to 
 bind the plaintifl nor was he bound to trace 
 it; that was for >lie defendant to do if he 
 pleased ; the fact that she had never reached 
 her destined port was evidence from which 
 tlie jury were authorized to find that she was 
 lost. Foster e. Beeee, 5 L. J. K. B., 73. 
 
 77. When last heard of she was making 
 repairs in a Danish port The person who 
 made the repairs intended to detain her until 
 remittances should be received to satisfy his 
 demands. Denmark declared war against 
 England, and she had not been heard from up 
 to the time this action was tried. Held, prima 
 facie evidence of a total loss. Ferrier v. San- 
 dieman. Faculty Dec, 1808 to 1810, p. 378. 
 
 11. What does not constitute. 
 
 (a) Of the master's sale. 
 
 1, On ship from New York to port or ports 
 
 709 
 
1419 
 
 TOTAL LOSS (ABSOLUTE OR CONSTRUCTIVE). 
 
 1420 
 
 What does not constitute . 
 
 ou the north side of Jamaica, and at and from 
 cither or all of said ports to New York. She 
 was captured by a Spanish privateer while 
 proceeding from Falmouth to Montego Bay, 
 recaptured, carried back to Falmouth, after- 
 wards to Montego Bay, and there subjected 
 to one-eighth for salvage. Ship and cargo 
 ■were sold to pay the salvage. She was pur- 
 chased by the master for account of whom it 
 might concern, took a cargo and returned to 
 New York subject to a bottomiy bond for ad- 
 vances made by the consignee. Her freight 
 out exceeded salvage and expenses. Insured, 
 on hearing of the recapture, abandoned. Held, 
 the capture was a mere temporary obstruction 
 of the voyage, which the master could have 
 removed by applying for a commission of ap- 
 praisement instead of inviting a sale, hence 
 there was no claim for total loss. Queen ii. 
 Union Ins. Co., 3 Wash. C. C, 331. 
 
 2. "On freight, $3,000, New York to Wil- 
 mington, thence to Barbados, and with liberty 
 to go to another English island, and at and 
 from thence to the city of San Domingo, there 
 and at the usual loading places on the coast, 
 and thence to New York " She sailed on the 
 voyage, but was obliged to cut away her masts, 
 and reached Norfolk in about three weeks in 
 a very disabled condition. Insured applied 
 to insurers' agent at Norfolk to have her re- 
 paired, who refused to have all the repairs 
 made that were necessary, or to agree to pay 
 for them, but was willing to agree to pay for 
 them in part, that is, whatever sums insurers 
 should be liable to pay. She was insured for 
 $8,000, by the same insurers, and it would have 
 cost more than that sum to repair her. She was 
 sold at public auction for $335. Had she per- 
 fofmed the voyage she would have earned 
 freight equal to the sum insured. Held, if the 
 insurer was willing to have the vessel repaired 
 and to pay his proportion of the loss, the in- 
 sured had no right to turn it into a total loss. 
 Ha/rtv. Delaware Ins. Co., 2 Wash. C. C, 846. 
 
 3. She put into a foreign port for repairs, 
 and the American consul ordered a survey; 
 and upon that she was sold by the master 
 without a regular condemnation. Seld, with- 
 out showing what the repairs would have cost 
 at the port of distress, insured could not re- 
 cover for a total loss. Cort v. Delaviare Ins. 
 Co., 2 Wash. C. C, 375. 
 
 4. The vessel being stranded, she was sold 
 by the master at public auction, and by hira 
 
 710 
 
 purchased, but was got oflf without material 
 injury, and before abandonment. Held, a par- 
 tial loss only. Church «. Marine Ins. Co., I 
 Mason, 341. 
 
 5. She was captured January 19th, acquit- 
 ted February 30th, and restored to master with 
 $2,000 freight. She refitted at an expense of 
 $800, and proceeded on the voyage. Insured, 
 having no notice of her restoration, offered to 
 abandon March 5th, which was refused. She 
 was sold for account of whom it concerned, 
 and suit brought for a total loss. Held, not a 
 total loss. Hallett v. Peyton, 1 Caines Gas., 28. 
 
 6. On ship from New York to East Indies. 
 She was compelled to put into Martinique for 
 repairs. Cargo was unladen in a sound condi- 
 tion ; but in consequence of the , climate and 
 exposure on the beach it was in great danger 
 of spoiling, and was sold there. The vessel 
 might have been repaired for less than half 
 her value, and have prosecuted her intended 
 voyage. She repaired and returned to New 
 York. Held, the necessity of selling the cargo 
 did not entitle the insured on ship to recover 
 for a total loss. Goold v. Bhaw, 1 Johns. C, 393. 
 
 7. The insured on cargo must, if he can, 
 send the goods to the port of destination; and 
 if it could have been done by lighters or other 
 vessels, a sale at the point of distress will not 
 confer a right to recover for a total loss 
 Ludlow V. Columbian Ins. Co., 1 Johns., 335. 
 
 8. Vessel and cargo were stranded. Insured 
 gave notice of abandonment ; but prior to that 
 the cargo had arrived safely at an intermediate 
 port. It was sold and the proceeds invested. 
 Held, insured were entitled to claim for a par- 
 tial loss only. Child ». Sun Mut. Ins. Co., 2 
 Sandf., 76. 
 
 9. The master testified that in five minutes 
 after she struck she was a complete wreck.; 
 but he did not state any facts upon which this 
 conclusion was based. The insured testified 
 that she was afterwards rescued, repaired, and 
 made seaworthy. Held, the master's statement 
 was a mere expression of opinion, and when 
 taken in connection witli what the plaintiff 
 admitted, was not sufScient evidence of a total 
 loss, actual or constructive. McOoll «. Sun 
 Mut. Ins. Co., 2 J. «& Sp. (N. Y.), 313; s. c, 50 
 N. Y., 333; 44 How. Pr., 452. 
 
 10. On ship insured at Boston, owned 
 partly at Boston, but chiefly at New Orleans. 
 She was on a voyage to New Orleans; she 
 struck on a shoal on the coast of Florida, but 
 
1421 
 
 TOTAL LOSS (ABSOLUTE OR CONSTRUCTIVE). 
 
 1422 
 
 What does not constitute. 
 
 ■with the help of wreckers was taken off; they 
 insisted that she should go to Key West to ad- 
 just the salvage by arbitration or judgment; 
 she was there condemned, as unworthy of re- 
 pairSy and sold. The expense of repairing her 
 there would have exceeded fifty per cent, of 
 her value; but at New Orleans or Boston, to 
 ei&er of which she might have proceeded 
 (she did proceed to Boston with the same 
 master), the expense would have been less 
 than fifty per cent. Held, the sale was not 
 justifiable and did not affect the insurei-s. 
 HiM ti. Franklin Ins. Co., 9 Pick., 466. 
 
 11. A master cannot justify a sale of the 
 cargo on the ground that it was the best thing 
 for all concerned; that a prudent owner, if 
 present, would have sold it under the same 
 circumstances. Nothing but a legal necessity 
 will justify a sale. Bryant v. Commonwealth 
 Ins. Co., 13 Pick., 543. And where the cargo 
 might have been sent overland to a port forty 
 miles distant, and there reshipped to the port 
 of destination at a cost of less than fifty per 
 cent, of its value, the master has no legal right 
 to sell it: Ibid. And in ascertaining whether 
 the cost would amount to fifty per cent, of its 
 value, the expense to insure it against risks of 
 plunder and weather, from the wreck to the 
 place of destination, is not to be considered. 
 Ibid. 
 
 12. Vessel struck Craysford reef while on a 
 voyage to Mobile, and was injured to more 
 than one-half her value; but she got into Mo- 
 bile in safety, where a survey was held, and 
 the surveyors having recommended a sale, she 
 was sold there by the master, apart owner and 
 one of the insured, without consulting the in- 
 surers at Boston. Hdd, the sale was not justi- 
 fied under the circumstances. Peirce v. Ocean 
 Ins. Co., 18 Pick., 83. 
 
 1 3. Master sold a stranded ship without no- 
 tice to owners or insurers. All the owners 
 joined in an offer to abandon, giving credit 
 for the sale. The insurers neither accepted 
 nor refused the abandonment expressly, nor 
 did they take the proceeds of the sale, but sent 
 an agent who repurchased her, repaired and 
 kept her for their own use. IlOd, the insured 
 had affirmed the master's sale, therefore they 
 lad nothing to abandon; that insurers were 
 entitled to hold her under their purchase, and 
 insured was not entitled to recover for a total 
 loss. Badger v. Ocean Ins. Co., 23 Pick., 347. 
 
 14. She arrived at her port of destination in 
 
 a damaged condition; the damage was less 
 than half her value ; but it was impossible to 
 obtain funds to repair her there, and the mas- 
 ter, in the presence of her owners, sold her. 
 Held, they were not entitled to recover for a 
 total loss. Allen v. Commercial Ins. Co., 1 
 Gray, 154. And evidence, that it would have 
 been dangerous and impracticable to repair 
 her there, was immaterial. Ibid- 
 
 15. From New Orleans for Tampico. $5,000 
 on hull etc., valued at |30,000. She arrived 
 off the bar at Tampico, about six miles from 
 the town, and grounded. Unsuccessful efforts 
 were made to get her off; the weather became 
 boisterous; the master and all the crew except 
 one man left her at night, deeming it unsafe 
 to, remain; they returned the following day 
 and left her the following night ; during that 
 night she was driven over the bar and upon 
 the beach. C. took possession of her on the 
 beach, claiming that right as salvor, and re- 
 fused to allow the master and crew to exercise 
 any authority. C. lightened her off and took 
 her to Tami)ico, at an expense of about $250, 
 and claimed 50 per cent, salvage. The master 
 called a survey, and the surveyors gave their 
 opinion that it would cost more to repair her 
 at Tampico than she would be worth when re- 
 paired, and a sale was recommended. The 
 salvor and master agreed to submit the sal- 
 vage claim to arbitrators, and it was decided 
 that C. should be paid fifty per cent, salvage. 
 She was sold for $3,200. The purchaser put in 
 a temporary rudder at an expense of |100, 
 navigated her to New Orleans, where she was 
 thoroughly repaired at an expense of about 
 $800. Held, the repairs and amount of sal- 
 vage, at the highest estimate, did not reach 
 even one-third of $10,000; the master's agree- 
 ment to submit to arbitration without waiting 
 for instructions, and the manner of conduct- 
 ing the proceedings, gave no color to the sale ; 
 insurers were liable for a partial loss only. 
 Pedi V. Nashville Marine and Fire Ins. Co., 6 
 La. An., 148. 
 
 1 6. On cotton. The vessel became disabled 
 and the cargo was unladen, but in a condition 
 to be sent to New Orleans, the port of destina- 
 tion, and means of transportation could have 
 been procured. It was sold at the point of 
 disaster, without consulting insurers. Held, 
 the sale was illegal and conferred no right to 
 abandon. Bugdy v. Sun Mut. Ins. Co., 1 La. 
 
 An., 279. 
 
 711 
 
U23 
 
 TOTAL LOSS (ABSOLUTE OR CONSTRUCTIVE). 
 
 1424 
 
 What does not constitate. 
 
 17. On ship from Callao to Cowes. She 
 sailed July 12th, with a cargo of guano, and 
 returned to port in about thirty hours. From 
 her departure until she returned, she strained 
 and leaked very much, in a fresh gale and 
 chopping sea. She was abandoned and sold, 
 and subsequently repaired for the sum of $190, 
 took a cargo for Valencia, and performed the 
 voyage in safety. Held, it was the duty of the 
 master to have made the necessary repairs; 
 the abandonment and sale could not prejudice 
 the rights of the insurers. Manau v. Louisiana 
 Hut. Ins. Co., 15 La. An., 201. 
 
 18. On negro slaves, valued at $250 each. 
 St. Thomas to Charleston. She sailed Febru- 
 ary 27th, and labored heavily in a head sea, 
 Harch 5 th and 6th. The starboard chain 
 plates gave way, also the step of the mast, 
 which went overboard with all sails set, carry- 
 ing away the deck on the starboard side. She 
 bore away for Havana, and on the 9th fell in 
 with the Charlotte, bound to Havana; the ne- 
 groes were transferred, and the vessel aban- 
 doned at sea. The Charlotte carried the slaves 
 to Havana, where they were sold, except one 
 who died in the course of the voyage. Held, 
 insured was not entitled to recover for a total 
 loss. Teasdale s. Charleston Ins. Co., 2 Brev., 
 part 1, 190. 
 
 19. She was captured, brought into a neu- 
 tral port, and sold. The master bought her in 
 for the benefit of the owner. Held, an average 
 loss. M 'Masters o. Skoolbred, 1 Esp^ 337. 
 
 20. She arrived wiUiin two miles of the 
 port of destination, when she was driven on 
 sunken rocks; was got oS and carried into 
 port, and cargo discharged. The master in- 
 formed owner's agents, and demanded a sur. 
 vey ; she was condemned by the surveyors, and 
 offered for sale, but no purchaser obtained. 
 He was ordered to tow her out of the harbor. 
 She was sold piece by ijiece for firewood. It 
 was impossible to ascertain the extent of her 
 damage without heaving her down, and there 
 were no conveniences at the port of destina- 
 tion for doing so. Held, if she might have 
 been repaired, the insurers were not liable for 
 a total loss. Tanner v. Bennett, R. & M., 
 182. 
 
 21. On cargo of timber from Quebec to 
 Liverpool. She sailed November 20th, and 
 grounded at Brandypotts, in the St. Lawrence, 
 December 2d. Ineffectual efforts were made 
 to get her off, and she was frozen in. Exam- 
 
 713 
 
 inations as to her condition were made De- 
 cember 10th and January 16th. She was very 
 badly crushed, and the surveyors advised a 
 sale for the benefit of all concerned; but 
 Lloyd's agent at Quebec withheld his con- 
 sent. The crew were discharged. The ice 
 commenced breaking April 29th, when sur- 
 veyors again examined her and advised an 
 immediate sale of ship and cargo. They 
 were sold separately, the ship for £349, and 
 cargo for £550. It was taken out and resold 
 for £1,400, and she was repaired at an expense 
 exceeding £3,000, but upon a resale, she 
 brought very much less than cost and repairs. 
 Held, insured was not entitled to recover aa 
 for a total loss. Farnworth v. Hyde, S L. R. 
 0. P., 204; 35 L. J. C. P., 250; 12 Jur. (N. S.), 
 997; 15 L. T. (N. S.), 395; 36 L. J. O. P., 33; 
 15 W. R., 340; reversing 18 C. B. (N. S.), 835; 
 11 Jur. (N. S.), 349: 34 L. J. C. P., 207; 13 W. 
 R., 613; 12L. T.,231. 
 
 22. On ship. She was stranded off Vigo. 
 The master wrote to the brokers through 
 whom the insurance was effected, and offered 
 an abandonment He obtained a warrant 
 from the magistrates at Vigo to sell the vessel, 
 which was done. She. was repaired at a small 
 expense and put to sea on another voyage. 
 Held, the loss was partial. Smith v. Dreeeer, 
 3 C. C. S., 494 
 
 23. She was insured for her full value and 
 suffered great damage at sea. Insurers re 
 fused abandonment and owners sold her as a 
 wreck. Purchasers repaired at a small ex- 
 pense, and sold her at a profit. Held, not a 
 total loss. M'Corkell v. Murison, 9 C. C. S., 
 149 ; 19 Scot Jur., 658. 
 
 (b) Of capture, seizure, arrests, deten- 
 tion and reta/rdation. 
 
 24. The plaintiffs were in advance for money 
 lent and goods delivered to C, according to 
 an account stated, $13,750, which included 
 commissions and insurance premium ; and 
 they contracted with C. to furnish a suitable 
 vessel to transport the goods and effects of O. 
 from Philadelphia to Havana, to procure in- 
 surance to be made upon them for the voyage, 
 for their value, commissions, premiums, and 
 charges added; and C. agreed to repay the 
 money advanced, with freight and charges, to 
 the plaintiff^g agent at Havana, in specie oi 
 produce of the island of Cuba. Defendant 
 
U-2o 
 
 TOTAL LOSS (ABSOLUTE OR CONSTRUCTIVE). 
 
 1426 
 
 "What does not constitute. 
 
 insured $13,750 from Philadelphia to Havana 
 and back to Philadelphia, on goods and mer- 
 chandise. The property out was warranted as 
 the property of C, and that he had all the 
 necessary passports and protections for him- 
 self and suite; that if tlie home cargo should 
 not be shipped at Havana, there should be a 
 return of seven and a half per cent, of the 
 premium. She was captured by a British 
 privateer, carried to New Providence, and con- 
 demned ; but the goods of C, except one trunk, 
 lost after the capture, were restored on his 
 giving security to abide the final decree. C. 
 refused to pay the plaintiffs debt, and insured 
 abandoned before restitution. Held, the in- 
 surance was made by insured in their capacity 
 as agente, for C. ; that C.'s acceptance of a 
 part of the property saved, precluded the re- 
 covery of anything beyond a partial loss, for 
 if 0. had paid the plaintiffs' account, he could 
 recover only the loss actually sustained ; and 
 hence it follows plaintite could not recover 
 for their own use, because, if they could, one 
 insurance, effected for one premium, would 
 be made to cover two different interests, vested 
 in different persons. Donaih v. Imuranee Go. 
 vf North Ameriea, 4 Dall., 463. 
 
 85. She sailed from New York on the voy- 
 age insured, touched at Baracoa and proceeded 
 to Nevitas, where she sold her out cargo, took 
 in a return cargo of goods and $5,000 in silver 
 specie; she also had npwards of $1,000 of 
 money taken on the outward voyage. She 
 sailed from Nuevitas on the home trip, but 
 stress of weather and damages sustained drove 
 her into Matanzas, where the governor ordered 
 her to land the specie, but permitted her to 
 lay it out in colonial produce, half of which 
 was expended in purchasing sugars to fill 
 tip, and the balance deposited with a mer- 
 chant there, who bought sugars with it and 
 sent them to New York in another vessel. She 
 arrived at New York, having jettisoned a por- 
 tion of the cargo ; an abandonment was offered 
 but refused, and the parties agreed that vessel 
 and cargo, as well as the sugars purchased 
 with the money deposited at Matanzas, 
 should be sold without prqudice to the rights 
 of either. Hdd, the detention of the specie at 
 Matanzas gave no right to recover for a total 
 loss ; that while a partial loss of an entire car- 
 go may convert a technical into a total loss, a 
 destruction of a distinct part cannot give the 
 light to recover for a total loss, if the voyage 
 
 is not thereby broken up or rendered unworthy 
 of furtlier prosecution. Seton v. Delaware I its. 
 Co., 2 Wash. C. C, 175. 
 
 26. Open policy on vessel from Philadel- 
 phia to Jamaica. She was taken by the ene- 
 my, retaken and carried into Jamaica, where, 
 by agreement between the master and recap- 
 tors, without proceedings in a court of admi- 
 ralty, she was publicly sold for about one- 
 fourth the sum insured, and bought by the 
 master for the owners, who confirmed his act. 
 Held, insured was not entitled to recover for a 
 total loss; but that he was entitled to compen- 
 sation for salvage, chiu-ges and loss of ship's 
 time on account of the capture. Stoi-y v. 
 StreOel, 1 Ball., 13. 
 
 27. On ship, from New Bedford to Charles- 
 ton, with liberty to touch at Savannali, and at 
 and from thence to port or ports in. Great Brit- 
 ain. Stipulated : " In case of capture or de- 
 tention insured shall not abandon short of six 
 months after notice thereof shall be given to 
 underwriters, unless sooner condemned." 
 While she lay at Savannah, United States im- 
 posed an embargo upon all ships and vessels 
 for ninety days, and before it expired war was 
 declared. Insured gave notice of embargo, 
 and six months afterwards abandoned ; but in 
 the meantime she had returned to New Bed- 
 ford. Seld, not a total loss. Delano v. Bed- 
 ford Marine Ins. Co., 10 Mass., 348. 
 
 28. The ship insured was at Buenos Ayres 
 when United States and Great Britain de- 
 clared war. Two British ships of war were 
 lying in the river below, the commanders of 
 which announced their intentions to capture 
 her if she attempted to sail. Thus deterred 
 from sailing, an abandonment was offered. 
 Held, there was neither an absolute nor a tech- 
 nical total loss. Bremer v. Union Inx. Co., 12 
 Mass., 170. 
 
 29. Policy provided: "In case of loss no 
 proof of property shall be required, and no 
 return premium paid for want of interest." 
 Stipulated: "Ship shall be documented and 
 manned as Swedi.sh, and in case of capture 
 she shall be claimed as Swedish property." 
 She was captured, but restored. Large ex- 
 penses attended the restoration. Held, not a 
 total loss; that insured was entitled to indem- 
 nity for the actual loss. Hemmenway «. Baton, 
 13 Mass., 108. 
 
 30. On ship, cargo and freight, from Havana 
 to a port of discharge in the United States. She 
 
 713 
 
1427 
 
 TOTAL LOSS (ABSOLUTE OR CONSTEUCTIVS). 
 
 1428 
 
 What does not constitute. 
 
 made Charleston for repairs, and was after- 
 wards cast ashore by stress of weather, at 
 WashwooUs, about forty miles from Norfolk. 
 She sustained no material damage by strand- 
 ing. Two or three days after , all her cargo 
 was landed on the beach, slightly damaged, 
 where it remained for twelve days, when it 
 was sold for the benefit of all concerned. Mas- 
 ter paid the duties on the cargo at Korfolk, 
 fraudulently concealed himself, and never 
 paid over the proceeds to the insured nor to 
 the insurers. Insured claimed for a general 
 average loss at Charleston, and a total loss by 
 stranding at Washwoods. The cargo was car- 
 ried overland to Norfolk, at which place a ves- 
 sel might have been procured to carry it to 
 port of destination. Held, the owner of goods 
 cannot abandon on account of vessel being 
 disabled in the course of her voyage, if on the 
 whole it is reasonable, taking into view all the 
 circumstances, expense and risk of sending 
 on the cargo, that the master could have 
 procured another vessel for that purpose; 
 that he must do so, although not able to pro- 
 cure one at the port of distress; that he must, 
 if he can, procure one at a contiguous port, al- 
 though it be necessary to carry the goods over- 
 land to have them reshipped. Bryant v. Com- 
 monwealth Iru. Co., 6 Pick., 131. 
 
 31. Stipulated: " Free from loss in conse- 
 quence of seizure or detention for, or on ac- 
 count of, illicit or prohibited trade. Warrant- 
 ed not to abandon if turned away or captured 
 till condemned." She was captured and sent 
 to England. Subsequently released, continued 
 her voyage, reached Verdun January 16, 1804 
 was seized, not suffered to unload, ordered to 
 leave the territory of France because she had 
 come directly from England. She went to St. 
 Sebastians, Spain, discharged cargo, and re- 
 turned in ballast to Bordeaux. The cargo 
 unsold at St. Sebastians was sent to Bordeaux 
 and sold. Hdd, the insured could recover for 
 a partial loss and expenses from the time she 
 was captured till she arrived at Bordeaux, but 
 not for a total loss. Speyer v. New York Int. 
 Co. 3 Johns., 88. 
 
 32. On ship from Philadelphia to Corun- 
 na; was captured, sent to Plymouth and the 
 voyage broken up. Policy stipulated: "Not to 
 abandon in case of capture in less tlian sixty 
 days after advice thereof, unless previoasly 
 condemned." March 5th insured received 
 notice of capture. March 2d restitution was 
 
 714 
 
 ordered. May 7th insured abandoned. Held, 
 he could not recover for a total loss. Sitehie 
 V. United States Iru. Co., 5 S. & R., 501. 
 
 33. On ship valued at £1,200. She was 
 captured, a prize master put on board to carry 
 her to France. She was retaken by an English 
 man of war, who took her to Plymouth, and 
 insured offered to abandon as to the sum in- 
 sured (£100). She sustained no damage except 
 from the capture. Held, there was no change 
 of property before condemnation; and, by the 
 act of parliament, in case of recapture, the 
 jii » postliminii coatinnes forever. Held, alto, 
 that it is repugnant upon a contract of in- 
 demnity to recover as for a total loss when the 
 final event has decided that the damnification, 
 in truth, is an average, or perhaps no loss at 
 all. That if the thing is safe, no artificial 
 reasoning shall be allowed to set up a total 
 loss. Hamilton v. Mendei, 2 Burr., 1198; 1 W. 
 Bl., 276. 
 
 34. She was insured for the voyage and lost 
 by capture. The master paid to the com- 
 mander $3,000, and contracted thai if she 
 should be liberated and permitted to proceed 
 to England as a cartel ship, with a number of 
 English prisoners who were at Oporto, the 
 English government should liberate an equal 
 number of French prisoners, or that the ves- 
 sel and master should be again placed in the 
 custody of the commander. After she was 
 liberated, insured abandoned, and, upon her 
 arrival at destination, the master refused to 
 deliver her tu the insured until the sum of 
 $3,000 was repaid, which the plaintiff refused 
 to do; and, up to the time of the trial, she con- 
 tinued in the possession of the master. Held, 
 the loss of the voyage and the loss of the 
 freight was not a loss of the ship. Partont v. 
 Scott, 2 Taunt., 363. 
 
 35. On vessel. She was seized by the offi- 
 cers of the Prussian government and put up 
 for sale. The master bought her, made re- 
 pairs and bottomried her for the expenses, and 
 brought her home to the owner, who refused 
 to receive her or pay the bottomry bond, upon 
 which she was libeled in admiralty and sold. 
 Held, the mere seizure and selling did not 
 create a forfeiture or change the property, 
 hence the insurer was not liable for a total loss. 
 Wilton «. Foriter, 6 Taunt, 25 ; B. c, 1 Marsh., 
 425. 
 
 36. Goods were detained by a foreign power 
 and afterwards restored. Held, the insurer 
 
1429 
 
 TOTAL LOSS (ABSOLUTE 03. CONSTRUCTIVE). 
 
 1430 
 
 What does not constitute. 
 
 was discharged. Jordaine «. Cornwall, 1 
 Stark., 6. 
 
 37. " On cargo of pilchards to Naples, with 
 leave to join convoy at Falmouth or elsewhere. 
 Warranted free from average, unless general, 
 or the ship be stranded." Kaples was shut 
 against British vessels. Under the directions 
 of the vice admiralty court at Minorca, where 
 she put in, the cargo was sold for a small 
 sum, and an abandonment offered tmd refused. 
 EM, avoiding tJie port of destination to save 
 contiscation of the vessel, though it defeated 
 the voyage, did not operate as a total destruc- 
 tion of the tiling insured. Hadkinaon v. Bob- 
 inaon, 8 B. & P., 388. 
 
 38. " On freight." An embargo was laid 
 by the Russian government on all British 
 ships in the port of Riga, where she was with 
 her cargo ready to depart. She was taken 
 possession of by the Russian government, her 
 sails taken away and her cargo relanded. 
 Two months after, information of it reached the 
 insured, who then abandoned. Four months 
 after, slie was restored, the master, crew and 
 cargo were released; after taking them on 
 b-iard, she proceeded to the port of destina- 
 tion. Held, the insurei-s were not liable. 
 M 'Gorthy c. Abd, 5 East, 388; 1 Smith, 534. 
 
 39. She was captured, and in a few days 
 recaptured. Insured abandoned on receiving 
 intelligence of the capture. She was after- 
 wards restored, arrived in Liverpool, earned 
 freight. The salvage and charges of the re- 
 capture amounting only to £15 43. 8d. per cent. 
 Ueld, he had no right to recover as for a total 
 loss. Bainbridge «. Nsilson, 10 East, 829; 1 
 Camp., 237. 
 
 40. " Warranted free of particular average," 
 from London to Quebec. She encountered 
 very heavy weather, lost her sails, and was 
 obliged to bear up for Cork, but ran into 
 Kinsale, October 25th, where she was obliged 
 to unload cargo; some of it was damaged 
 seventy-five per cent., and some only ten per 
 cent; she could not repair in time to reach 
 Quebec that season, nor could a vessel be pro- 
 cured to carry on the goods that season. They 
 were sold, and notice of abandonment giv 
 en. Held, a temporary retardation of the 
 voyage is no cause of abandonment, and gives 
 no right to a total loss. Anderson v. Wallis, 3 
 Camp., 440 ; 3 Mau. & Sel., 240 ; Hunt v. Royal 
 Exchange Am*. Go., 6 id^ 47. 
 
 41. WbUe loading her homeward cargo for 
 
 tlie voyage insured, she was carried by the 
 crew to a distant country, cargo plundered 
 there, and she was deserted ; another ship took 
 her w^ith a small part of the cargo to an Eng- 
 lish port; part of her rigging was gone, nor 
 could she be made fit for a voyage without 
 considerable expense in providing a crew and 
 stores. Held, not a total loss. JFalkner ». 
 Sitehie, 2 Mau. & Sel., 290. 
 
 42. September 27th she was captured by an 
 American privateer; intelligence of which 
 reached insured October 13th, when an offer 
 to abandon was made, and refused. October 
 27tli she was recaptured by an English priva- 
 teer, and carried to Halifax for adjudication, 
 where some of the cargo was sold to pay sal- 
 vage. She arrived in May following at desti- 
 nation. One hundred and eighty-eight gallons 
 of rum and twenty-three tons of salt, part of 
 the cargo, had been plundered by the captors. 
 Held, not a total loss. Fatterion v. Sitehie, 4 
 Mau. & Sel., 393 ; Brotlierston v. Barber, 5 id., 
 418. 
 
 43. On cargo to St. Johns, Newfoundland. 
 She was obliged to put into Cork in distress, 
 in November, and was there broken up 
 and sold. It was impossible to forward 
 the cargo (of flour and pork) before the 
 next spring. Held, not a total loss, for it 
 was a mere retardation of the voyage. 
 Hunt V. Soyal Exchange Asa. Go., 5 Mau. & 
 Sel., 47. 
 
 44. On goods. She was captured by pirates 
 and partially plundered, July 20, 1838. The 
 goods insured were plundered £9. Master, 
 crew and passengers were taken out and con- 
 fined in the pirate vessel, and subsequently 
 put to sea in a small boat. She was then car- 
 ried to St. Eustatia, August 22, 1828. Insured 
 received information of the capture, and no- 
 tice of abandonment was offered and refused. 
 The ship and cargo were taken by tlie Dutch 
 authorities at St Eustatia, but she was given 
 up to Uie British authorities of St. Kits, who 
 demanded her August 27, 1828, at St. Eustatia. 
 She was carried by tliem to St Kits. On re- 
 ceiving information that she was at St. Eusta- 
 tia, insured again pressed their abandonment, 
 but insurere authorized the insured to take 
 suoh steps as were expedient for prosecuting 
 the voyage to the place of destination, and 
 agreed to indemnify insured against all ex- 
 penses in that behalf, without prejudice to tlie 
 rights of eitlier party. An agent was sent by 
 
 715 
 
1431 
 
 TOTAL LOSS (ABSOLUTE OR CONSTRUCTIVE). 
 
 1432 
 
 What does not constitute. 
 
 the insured from Liverpool to St. Kits, who 
 dispatched lier February 4, 1829, for her port 
 of destination, Buenos Ayres, where she ar- 
 rived the May following, and delivered the 
 goods insured to the consignees named in tlie 
 bill of lading. The defendant paid into court 
 money enough to make good the loss by 
 plunder, and the expenses of salvage and dis- 
 patching vessel from St. Kits. Held, the 
 plaintiffs were not entitled to recover, for 
 there was nothing but a retardation of the 
 voyage. CoreneKu. ifassje, 2L. J. (N. S.) K. 
 B., 160. 
 
 45. She sailed with a cargo of 3,493 bales 
 of cotton, the property of different persons, 
 under separate bills of lading. 532 bales, in- 
 cluding the 43 bales for the loss of which this 
 action was brought, belonged to the plaintiff. 
 She was wrecked at Key West, the cargo was 
 landed there in a damaged condition, many 
 of the bales were broken, the marks and num- 
 bers were entirely obliterated, some were en- 
 tirely lost, and others were in such a condition 
 that they were necessarily sold at Key West. 
 On her arrival at destination, 617 bales were 
 identified; 614 bales could not be identified 
 because all marks of identification had been 
 obliterated; 231 bales were either lost on the 
 reef or sold at Key West. Of the whole of 
 plaintiff's shipment, only 491 bales were ideu- 
 tifled, two of them in a greatly damaged con- 
 dition ; and this action was brought to recover 
 for the 43 bales. Held, as to the cotton which 
 arrived at Liverpool, and which could not be 
 identified, all the shippers were tenants iu 
 common, in proportion to their respective in- 
 terests ; that as to the cotton sold at Key West, 
 there was a total loss of it, which was to be 
 distributed among all the shippers pro rata, 
 hence there could not be an actual total loss 
 of the plaintiff's 41 bales, but that he was en- 
 titled to recover for an average loss. Spenee 
 V. Union Ma/rine Ins. Co., 3 L. E. C. P., 437; 
 37 L. J. C. P., 109; 16 W. B., 1010; 18 L. T. 
 (N. 8.), 633. 
 
 46. On ship from Grenada to Florida, and 
 from thence to Grenada, valued at £1,300. 
 She had arrived at Florida when the policy 
 was made. On her return she was captured 
 by an American privateer, retaken in about 
 five weeks, and carried to Rhode Island, 
 tlience to New York, where she was thorough, 
 ly repaired, which, with salvage paid, amount- 
 ed to £058. She sailed for Grenada and was 
 716 
 
 captured, retaken, and carried to Grenada; 
 but no person appearing there in behalf of 
 her owners to redeem, she was appraised and 
 sold by order of court, and tlie proceeds after 
 paying salvage deposited in court. Held, not 
 a total loss. Edmonstone v. Jackson, Faculty 
 Dec. 1778 to 1781, p. 195. 
 
 47. She was cast down on her beam ends, 
 but righted and proceeded on the voyage, c;.'p- 
 mred, retaken, and arrived at point of destina- 
 tion. On application in behalf of the owner 
 of the cargo, it was sold by order of the admi- 
 ralty court. Very few of the goods were dam- 
 aged, but their market value had depreciated 
 in the meantime more than fifty per cent. 
 Held, insured was not entitled to recover for 
 a total loss. Qavin v. Olen, Faculty Dec, 1781 
 to 1787, p. 419. 
 
 48. On cargo of salmon intended for Ven- 
 ice during the season of Lent. She was 
 obliged to throw overboard part of it, and after 
 much delay put into Port St. Lucar, on tlie 
 coast of Spain, to make repairs. Certain mer- 
 chants at that place advised the master that it 
 would be for the interest of all concerned to 
 sell the cargo at that place, because she could 
 not then reach Venice in the Lenten season. 
 The salmon would have spoiled from long 
 keeping if the voyage had been continued. 
 Held, insurers were not liable for the loss on 
 that sold at St. Lucar. Richardson v. 8toda/rt, 
 Fuculty Dec, 1781 to 1787, p. 299. 
 
 (c) Of perils of the seas. 
 
 49. Part of the goods insured, to the amount 
 of more than one-half, were jettisoned, and the 
 balance arrived in good condition at the port 
 of destination. On adjusting the general 
 average, the loss was thirty-six and a half 
 per cent. Held, the plaintiff could not aban- 
 don even as to the goods jettisoned, for it did 
 not appear that the insured ever applied to the 
 persons bound to contribute, or that tliere was 
 the least difficulty in procuring contribution. 
 Lapsley v. United States Ins. Co., 4 Binn., 502. 
 
 50. The crew became completely exhaust 
 ed, and deserted her for the preservation of 
 their lives. She was taken by salvors, who 
 carried her into port, and she was sold by »n 
 order in admiralty to satisfy salvage. Held, 
 only a partial loss, for the sale might have 
 been prevented by raising money to pay the 
 salvage. Tliomly v. Hebton, 2 B. & A., 513. 
 
1433 
 
 TOTAL LOSS (ABSOLUTE OR CONSTRUCTIVE). 
 
 Ii34 
 
 Of the amouut of damage and difficulty or mability of procuring repairs. 
 
 51. The vessel went ashore, and insured on 
 cargo wrote to inform insurers of the circum- 
 staucps and particulars of the injury. Insur- 
 ers directed insured to do the best they could 
 with the damaged property. Held, a partial 
 loss. TMluson v. Fletcher, 1 Esp., 73; 1 
 Doug., 315. 
 
 52. She sailed from Liverpool for Rio laden 
 with a general cargo, encountered heavy 
 weather, was obliged to cut away all forward, 
 and to bear up for Falmouth, where shearrived, 
 having been out about twenty days. B. and 
 S. were thereupon appointed by the master 
 ship's agents. She was moored to the pier for 
 the purpose of repairs, and a portion of the car- 
 go taken out. A hurricane came on December 
 2, 1863, when she was sunk at her moorings in 
 twenty-two feet of water, when the tide was 
 out, and forty feet when it was in. Insured 
 directed B., a competent and experienced per- 
 son to act for him according to his best judg- 
 ment. B. concluded it would cost more to 
 raise and repair her than she would be worth 
 when repaired, of which fact ship's agents 
 were informed and directed not to incur any 
 expense, or to do anything to raise and repair 
 her. But B. & 8., on their own responsibility, 
 commenced raising her December 7th, and 
 completed it the 20th. She was taken into 
 dock by orders, and under the superintend- 
 ance of the master and safely moored. Notice 
 of abandonment had been previously given 
 December 4th to insurers. Held, insurers 
 were not liable for an absolute total loss, be- 
 cause it was not impossible to raise her, and 
 when raised to repair her, but they were li- 
 able for a partial loss. Kemp v. HalUday, 6 
 B. & S., 723. 
 
 (d) Of missing ship. 
 
 53. On cargo from Leghorn to Lisbon. It 
 was proved by one witness that he packed at 
 his warehouse certain goods consisting of 
 silks, etc., to go by her; that there was no ad- 
 dress on the packages, and in accordance with 
 instructions, he delivered them to a boatman ; 
 that he knew she had arrived at Leghorn and 
 was intended to sail for Lisbon. The boat- 
 man testified that he delivered the goods to the 
 vessel March 11th or 12, 1831, and took a re- 
 ceipt for them ; that he heard, from the insured 
 and the master, that she was bound for Lisbon; 
 that she sailed April 9th or 10th; heard a few 
 
 days after of her loss, and that the master and 
 crew were saved, but had not seen any of 
 them. Held, not a prima facie case. Koster v. 
 Innes, R. & M., 333. 
 
 III. Of the amount of damage and 
 
 DIFFICULTY OE INABILITY OF PKOCUE- 
 ING KEPAIES. 
 
 1, The cargo was valued at $39,889, of which 
 $7,439 were memorandum articles. She was 
 compelled by stress of weather and other acci- 
 dents to bear away to the West ladies, and ar- 
 rived at St. Johns, Antigua, December 33d, 
 where she was surveyed, and under a decretal 
 order of the court of admiralty, January 31st, 
 the cargo was sold and the sales completed 
 before March 28th. The net proceeds amount- 
 ed to $13,767, of which $6,863.30 were memo- 
 randum articles. She was repaired at Antigua 
 and made capable of performing the voyage 
 with the original cargo. An abandonment 
 was made. Held, in determining whether the 
 cargo was damaged more than half its value, 
 damage to the memorandum articles must be 
 excluded ; and a total loss of the balance of the 
 cargo could not be supported unless the dam- 
 age to the nonmemorandum articles exceeded 
 a moiety of the value of all the nonmemoran- 
 dum and memorandum articles; the forced 
 sales at Antigua did not constitute a medium 
 by which that damage could be ascertained, 
 therefore there was no evidence of a total 
 loss. Marcardier v. Chesapeake Ins. Co., 8 
 Cranch, 39. 
 
 2. $10,000 on the brig Gracchus, valued at 
 that sum, for six months. She arrived at New 
 Orleans, took on part of her cargo and sailed, 
 intending to go thirty-three miles below New 
 Orleans to take in the balance. She lost one 
 of her anchors, struck on a log, broke the rud- 
 der pintles, fell off and went ashore. All the 
 cargo was discharged. She was leaking badly, 
 and was pulled off and carried to New Orleans ; 
 subsequently carried across the river and re- 
 paired. The steamboat which pulled ber off 
 claimed fifty per cent, salvage, and libeled 
 for it. Insured offered to abandon, which was 
 refused. About two months after, the court 
 decreed one-quarter of the vessel and cargo to 
 the salvors, the cargo being valued at $7,000 
 and the brig at $3,500. The salvage was pa,id 
 and the master got possession of her. June 
 
 717 
 
1435 
 
 TOTAL LOSS (ABSOLUTE OR CONSTRUCTIVE). 
 
 1436 
 
 Of the amount of damage and difficulty or inability of procuring repairs. 
 
 3d her repairs were complete, and she was 
 ready for freight. Her repairs amounted to 
 11,690.15, and the salvage to |1,315.07. To 
 meet this and other expenses, she was bottom- 
 ried for $3,715.41, and five per cent, maritime 
 premium, payable on her arrival at Baltimore. 
 She was partly loaded and arrived at Balti- 
 more, where she was libeled to satisfy the 
 bond, of which insurers had notice, and she was 
 sold for $4,750. Held, if she could not have been 
 got off and repaired at an expense exceeding 
 half her value at the place where the repairs 
 wert! made, then the loss was total, and the sum 
 for which she was liable to the salvors must be 
 added to the expense of repairs proper ; but if 
 she could have been got off and repaired at 
 an expense less than half her value, including 
 salvage, then insured were not entitled to re- 
 cover for a total loss ; neither the arrest and 
 detention at the instance of the salvors, nor the 
 retardation of the voyage caused by the acci- 
 dent, were to be considered in determining 
 the right of insured to recover for a total loss. 
 In ascertaining whether the expense of re- 
 pairs exceeded half her value, neither the val- 
 uation given in the policy nor that at the 
 home port, nor at other ports in general, were 
 to be considered ; neither was any deduction, 
 one-third new for old, to be taken into account. 
 That to take away the right to recover as for a 
 total loss, she should be worth when repaired, 
 at the place where she was repaired, double 
 the expense of repairs. Bradlie v. Maryland 
 Ins. Oo., 12 Pet., 378. 
 
 3. She was cast away in March, 1830, upon 
 a ledge of rocks near Portsmouth, and bilged 
 immediately. She was in a very desperate sit- 
 uation, and a total loss was expected within 
 twenty-four hours. Insured tendered an aban- 
 donment, and insurers sent their agents to take 
 possession of her, sell her, if they deemed best. 
 Agents took possession, got her off and car- 
 ried her into Portsmouth in a week. She was 
 injured about one-half her value ; necessary 
 repairs could not have been made in less than 
 three months. Insurers offered to return her 
 to the owners, who refused ; they repaired her 
 within three months, and again tendered her 
 to insured, who again refused, ffeld, insured 
 had a right to abandon if she was damaged 
 one-half her value, in estimating which there 
 was to be no deduction, one-third new for old, 
 as in cases of partial loss ; the lialf value which 
 authorized an abandonment was half the sum 
 718 
 
 wliich the ship, if repaired, would bo worth 
 after repairs made ; in other words, she must 
 be worth double the amount of repairs ; insur- 
 ers had no right to take possession of her 
 either to move or repair her, and in doing so 
 they accepted the abandonment, which could 
 not be revoked by one party without the assent 
 of the other; under the circumstances, insured 
 had the right to abandon, though the injury 
 was less than one half the value. Peele o. Mer- 
 ekantg Ins. Oo., 3 Mason, 37. 
 
 4. The policy provided "that insured shall 
 not abandon, unless the amount which the in- 
 surer will be liable to pay under an atljustmeut 
 as of partial loss shall exceed half the sura in- 
 sured, and that in all adjustments, whether for 
 partial loss or general average, a deduction of 
 one-third new for old from the cost of labor 
 and materials shall be deducted." Held, be- 
 fore insured could recover for total loss, it 
 must appear that after a deduction o/ one-third 
 new for old from the estimated repairs, and 
 an apportionment of the net losS) the insurer's 
 proportion would have amounted to the sum 
 limited. Bulla/rd v. Soger Williams Ins. Co., 
 1 Curtis, 148. 
 
 5. In admiraltj'. A survey was ordered, 
 and she was condemned as unworthy of re- 
 pairs, at the Isle of France. A deposition of 
 the master tending to show the loss, and the 
 injury that made it necessary to put into the 
 Isle of France, was read ; and it stated that she 
 could not have been repaired there so as to 
 prosecute the voyage, and that no other vessel 
 could be obtained to carry on the cargo. Held, 
 a prima facie case. Oatlett v. Pacific Ins. Co., 
 
 1 Paine, 594. 
 
 6. The ship could not have been repaired 
 for half her value. Seld, a technical total 
 loss. Abbott V. Broome, 1 Caines, 393. 
 
 7. The policy was made to cover the inter- 
 ests of persons not named in it. Held, that 
 proof of a total loss of the property of the 
 person named would not authorize a techni- 
 cal total loss of the whole. Lawrence «. Bebor, 
 
 2 Caines, 203. 
 
 8. To establish a claim for technical total 
 loss for the ship, she must be damaged ono- 
 half her value. Smith v. Bell, 2 Caines Cas., 
 153. And to establish the damaged value, one- 
 third new for old shall be deducted from her 
 gross repairs. Ibid. 
 
 9. To establish a claim for technical total 
 loss of goods. If the part lost exceeded the 
 
1437 
 
 TOTAL LOSS (ABSOLUTE OR CONSTEUCTIVE). 
 
 1433 
 
 Of the amoant of damage and difScnlfy or inabiliiy of procming lepaiiB. 
 
 half Talne of the whole, it is a total loss of 
 the whole. Jvdah v. Sandal, 2 Caines Cas., 
 324. 
 
 10. One-third new for old is not to be de- 
 ducted from the gross repairs of a vessel, in 
 ascertaining whether she is damaged over 
 one-half her valne. Dupuy e. United In*. Co., 
 3 Johns. C, 182. 
 
 11. On goods from New York to Tonnin- 
 gen. "■ Warranted American property, and 
 not to abandon if captured until six montlis 
 after notice, unless prerionsly condemned, nor 
 if refused admittance or turned away, bat to 
 proceed to another near open port." She was 
 captured, carried into Calais and condemna- 
 tion demanded. The master was advised by 
 counsel that she would certainly be con- 
 demned, and to compromise with the captors. 
 A compromise was effected July 2511). Nei- 
 ther the insured nor the insurers ratified it 
 Insured received notice of the capture May 
 26th, but made no abandonment till November 
 26th. Heid, that the special stipulation only 
 suspended for sis months the right to aban- 
 don, and when made it related back to the cap- 
 ture and became operative from that time; 
 that the master, acting in good faith and with 
 the best advice that could be obtained, be- 
 came the agent of both parties, without pre- 
 judice to the rights of either; that the benefit 
 of the compromise belonged to the insurers, 
 who must look to the master for it; hence the 
 insured was entitled to be paid a total loss. 
 Clarkson v. Phoenix Ins. Co., 9 Johns., 1 ; Wad- 
 deU V. Columbian Ins. Co., 10 id., 61. 
 
 12. On ship. Stipulated: " No risk in port 
 but sea risks." She was driven ashore in a 
 gale, and left high and dry 200 yards above 
 high watermark, and within forty-eight hours 
 was destroyed by burning. Held, if she was 
 so stranded that she could not have been got 
 off at an expense of less than half her value, 
 it was a total loss within the policy. Patrick 
 «. Commereial Ins. Co., 11 Johns., 9. 
 
 13. If a vessel is damaged by any of the 
 perils insured against, so that repairs necessa- 
 ry to restore her former state and make her 
 seaworthy will exceed three-fourths of what 
 her value was before the disaster, the insured 
 on ship may abandon, and is not bound 1« re- 
 pair her. Diekej/ f>. American Ins. Co., 3 
 Wend., 658. 
 
 14. If the owner of ship is owner of freight 
 and cargo, and the general average contribu- I 
 
 tion due by them to the ship reduces the ex- 
 pense of her repairs below one half her valne, 
 a technical total loss of ship cannot be sus- 
 tained. Pemanl e. National Ins. Co., 15 
 Wend., 453. 
 
 1 5. Two policies, one on cargo the other on 
 ship, valned at $10,000. She struck a bar 
 on her way out. put back to New Orleans for 
 repairs, at which place the port wardens 
 recommended a sale, in consequence of the 
 large amotmt required to repair her. She was 
 sold January 17th, and brought $2,800. On 
 the 21st she was abandoned by insured, who 
 claimed for a total loss, minus her net pro- 
 ceeds. The other suit was upon policy 
 on. freight, valued at $6,000, on the same 
 voyage. Held, that if she could not have heen 
 fidly repaired at New Orleans for one-half her 
 valne, insured had a right to abandon and re- 
 cover for a total loss of ship. Heid, also, that 
 the vessel being driven back with her cargo 
 to the port of departure, where she was sold 
 for the benefit of those concerned, the cargo 
 unladen and redelivered to the shippers, there 
 was a loss of freight absolutely total. Center 
 V. American Ins. Co.,! Cow., 564; affirmed, 4 
 Wend., 46. 
 
 1§. She was valued at $16,000. The juiy 
 found the whole cost of repairs $12,000. Held, 
 a partial loss only, for deducting one-third new 
 for old, left $8,000, which did not exceed a 
 moiety of her value. Fiedler «. Nem York 
 Ins. Co., 6 Duer, 282. 
 
 17. If the vessel sustained damage which 
 deteriorated her valne one-half, the insured 
 was entitled to recover for a total loss. Peters 
 o. Phxnix Ins. Co.. 3 S. & R, 25. 
 
 18. The insured may abandon when the 
 damage exceeds one-half the valne of the 
 ship, subject to this exception ; if the insurer 
 will repair the ship he may do it. If the ship 
 is repaired, the cost, whether it be more or 
 less, is immaterial to the insured. Siichie o. 
 United States Ins. Co., 5 8. & R., 501. 
 
 19. The value of the vessel at the port of 
 necessity must determine wliether there is a 
 technical total loss. American Ins. Co. v. 
 Franda, 9 Penn. St., 390. 
 
 20. In determining whether the expense of 
 repairing a stranded ship amounts to half her 
 value, so as to constitute a technical total loss, 
 the expense of getting the ship afloat is to be 
 included; and whether this expense was in- 
 curred in saving the ship alone, or the ship 
 
 719 
 
1439 
 
 TOTAL LOSS (ABSOLUTE OR COKSTEUCTIVE). 
 
 14i0 
 
 Of the amount of damage and difficulty or inability of procuring repairs. 
 
 and c^go, is immaterial ; and one-third new 
 for old is not to be deducted from it. Bewail 
 V. Tjfnited States Ins. Co., 11 Pick., 90. 
 
 21. In determining whether the costs of re- 
 pairing the ship would exceed half her value, 
 so as to constitute a constructive total loss, 
 her sound; value is, prima fade, the sum agreed 
 upon in a valued policy. Winrir v. Columbian 
 Ins. Co., 12 Pick., 279. 
 
 22. Where the question is, whether the cost 
 of repairs would exceed half the value of the 
 vessel, evidence tending to. show that she 
 would have been worth less after she was re- 
 paired than she was before the injury is inad- 
 missible. Whether the expense of repairs 
 will exceed half the vessel's value, and thus 
 constitute a technical total loss, is to be deter- 
 mined by her valuation expressed in the pol- 
 icy, which is conclusive as to her value. 
 Orrok v. Commonwealth Ins. Co., 21 Pick., 456. 
 And where the valuation includes the pre- 
 mium, the expense of repairs must exceed 
 one-half of the whole valuation. Ibid. 
 
 23. The premium must not be deducted 
 fr«m the valuation named in the policy when 
 a constructive total loss is being determined; 
 and items of expense properly belonging to 
 general average are not to be included, nor 
 the expenses incurred to ascertain the extent 
 of the loss, nor the wages and provisions of 
 the officers and crew while the ship is under- 
 going repairs. Sail v. Ocean Ins. Co., 21 
 Pick., 472. 
 
 24. A damage to ship, which is properly a 
 charge in general average, must not be added 
 to a partial loss on her for the purpose of 
 carrying it up so as to constitute a construc- 
 tive loss. Oredy v. Tretnont Ins. Co., 9 Cush., 
 415. And if the ship remains in specie in 
 control of the insured, and there is not a total 
 loss in fact, a sale by the master cannot make 
 it so. Ibid. 
 
 25. In ascertaining whether a partial loss 
 on ship amounts to one-half of her agreed 
 valuation, charges in general average against 
 her must not be taken into.accoimt. Reynolds 
 v. Ocean Ins. Co., 22 Pick., 191. 
 
 26. Cargo of teas, insured from Canton to 
 New York. About 62 per cent of the teas 
 were jettisoned; the ship reached her home 
 port with the balance in good condition. 
 Seld, goods lost by jettison may be taken into 
 the estimate in making up the loss of fifty 
 per cent; but after any considerable portion 
 
 720 
 
 of the goods insured are landed at the port of 
 destination in good condition, the insured 
 cannot recover for a technical total loss on 
 the ground that the damage exceeds fifty per 
 cent, upon the whole. Forbes ti. Manufacturers 
 Ins. Co., 1 Gray, 371. 
 
 27. $9,000 on a barque for one year, from 
 November 8, 1849, valued at $18,000. " Not 
 liable for repairs made in California." She 
 was stranded at San Prancisco and could not 
 be repaired there so as to make her in all 
 respects as good as she was before the acci- 
 dent; but she could have been made sea- 
 worthy at that port New York was the 
 nearest port where full repairs cotdd have 
 been made; but the expense of navigating 
 her there and repairs would have been equal 
 to three-fourths of her value. Held, whether 
 the defendants were liable for repairs made in 
 California was one thing, and whether the 
 vessel was to be deemed constructively lost 
 upon an estimate of repairs, made at the place 
 of the injury, was another; the contract did 
 not say, the defendants would not be liable 
 for losses incurred in California; therefore, if 
 the injury was of such a nature that the vessel 
 could have been taken to another place for 
 repairs the exception could not save the 
 defendants, nor could it afiect the right of 
 insured to abandon ; and the cost of taking the 
 vessel from place of disaster to a point where 
 she could have been repaired must be added 
 to the estimate of repairs in determining the 
 question, whether she was damaged one-half 
 her value. Lincoln v. Hope Ins. Co., 8 Gray, 
 22. 
 
 28. She went ashore at Cape Cod, loaded 
 with coal, filled, and at high tide her deck was 
 three feet under water. Insured offered an 
 abandonment, which was refused. Insurers 
 sent their agents, who succeeded in raising 
 her and in saving such portion of the coal as 
 had not been thrown overboard in the attempt 
 to save the vessel. Insurers brought her to 
 Boston, the most convenient port for repairs, 
 and tendered her to insiu-ed. The expense of 
 repairing her did not amount to one-half her 
 value ; but if the expense of raising and tak- 
 ing her to Boston were added, the loss would 
 exceed one-half her value. Held, the expense 
 of raising her was not a general average 
 charge (citing Lincoln v. Hope Ins. Co., 8 
 Gray, 22). That all the expenses incurred in 
 raising and carrying her to Boston were in the 
 
1441 
 
 TOTAL LOSS (ABSOLUTE OR CONSTRUCTIVE). 
 
 1442 
 
 Of the amount of damage and difSculty or inability of procuring repairs. 
 
 nature of repairs, therefore insured was en- 
 titled to recover for a constructive total loss. 
 Sllieott e. AUinnee Ins. Co., 14 Gray, 318. 
 
 29. The court below instructed, "If the 
 jury should find that the vessel remained in 
 specie, but was so badly damaged that repairs 
 would have cost more than she would be worth 
 when fully repaired, the repairs must be con- 
 sidered impracticable and the loss considered 
 as total withont abandonment. Held, error, 
 for if she remained in specie and the owners 
 elected to repair, they could not prevent the 
 application of the rule "one third new for 
 old," by showing that the cost of repairs ex- 
 ceeded the value of the vessel when repaired. 
 Reversing s. &, 1 Gin. Sup. Ct, 193. Globe 
 Int. Co. r. Sherlock, 25 Ohio St, 50. 
 
 30. The insured cannot abandon as for a 
 total loss, unless it exceed one-half of the 
 value of the property insured. Budd «. Union 
 Ins. Co., 4 McC!ord, 1. 
 
 31. Stipulated: "Unless the injuries sus- 
 tained be equivalent to fifty per cent, on the 
 value of the interest owned by the insured he 
 shall riot have the right to abandon as for a 
 total loss." Held, the actual value of the 
 vessel when repaired at the port of repairs 
 and not the value agreed in the policy was 
 the standard by which the right to abandon 
 must be determined. FuUon Ins. Co. v. Cfood- 
 man, 32 Ala., 108. 
 
 32. Valued at $6,000; insured for $4,000. 
 Her &«ight was valued at 11,873.36, and in- 
 sured for $1,225. She took the ground in at- 
 tempting to cross a bar at the mouth of the 
 Mississippi. The low boat bad great difficulty 
 in twisting her off, and in attempting so to do, 
 knocked against and carried away the wind- 
 lass bits and some of her tackle. After she 
 got to sea a leak was discovered, and encoun- 
 tering heavy gales and seas, it increased so 
 rapidly that she was obliged to put into Key 
 West, where she was pronounced unworthy of 
 repairs. Her cargo was forwarded to destina- 
 tion by another vessel, and insured offered an 
 abandonment, which was refused. Held, in 
 estimating the cost of repairs, to ascertain 
 whether they would exceed fifty per cent of 
 ship's value, a deduction of one-third new for 
 old was not to *e made, because that rule ap- 
 plies to cases where the loss is partial ; that aa 
 the repairs would have exceeded fifty per cent, 
 of her vilue, the abandonment was valid, and 
 insured were entitled to recover as for a totol 
 
 46 
 
 loss. PhiUipg e. St. Louis Perpetual' In«. Co:, 
 11 La. An., 459. 
 
 33. The master elected to repair. The ex- 
 penses proved greater than the value of the 
 ship when repaired. Held, the result did not 
 prove that the master acted beyond the scope 
 of his authority, for it was the master's duty 
 to do all that could reasonably be done to re- 
 pair the ship and make her fit to carry the 
 cargo to the port of destination and earn 
 freight; the fact that the repairs exceeded her 
 value when repaired did not confer any right 
 upon the insured to recover as for a total loss. 
 Benson v. Chapman, 3 H. L. Cas., 696. 
 
 34. Ship received at Sierra Leone 333 logs 
 of timber and sailed, but was barratrously 
 taken by the crew to Barbados, where she was 
 condemned and sold. Some of the cargo was 
 sold there to pay charges incurred, and the 
 balance forwarded to port of destination. 
 Heid, from the time the cai'go was taken out 
 of the possession of the insured, it became a 
 total loss; what was done at Barbados was not 
 done by any person aathorized by the insured; 
 hence the loss was total, with benefit of salv. 
 age. Dixon v. Seed, 5 B. & A., 597 ; 1 D. & R., 
 207. 
 
 35. On ship. Stipulated: "Allowed to be 
 seaworthy for the voyage." Her admitted 
 value before damage was £5,500 ; but it would 
 have cost £4,000 to repair her, which would 
 have been more than her value when repaired. 
 Held, it was proper to tell the jury to find a 
 total loss for the plaintift' if the cost of re. 
 pairing would have been greater than her 
 value when repaired. Held, also, it would not 
 have been proper to tell the jury to exclude 
 from their estimate all such repairs as the de- 
 cayed state of some part of the ship made 
 necessary. PhMips f>. Naime, 4 C. B., 343 ; 
 16 L. J. (N. S.) 0. P., 194; 11 Jur., 455. 
 
 36. On wheat, valued at £6,400, from Odessa 
 to Liverpool. She was compelled to put back 
 to repair, which cost £1,800. Ship and cargo 
 were hypothecated for £1,850. She sailed 
 again, was wrecked and carried into Cork, 
 where she was found not worth repairs, and 
 ship and cargo were sold there by decree in ad- 
 miralty. One-half of the wheat might have 
 been dried and carried from Cork to destina- 
 tion at an expense less than its value at desti- 
 nation. Held, the jury must be instructed to as- 
 certain cost of unshipping, drying, warehous- 
 ing and transhipping into another bottom, and 
 
 721 
 
1M3 
 
 TOTAL LOSS (ABSOLUTE OR CONSTRUCTIVE). 
 
 1444 
 
 Of the axaount of damage and difficulty or inability of piocuring repairs. 
 
 the coBt of the difference of transit; if it 
 could only be effected at a higher than the 
 original freight, the salvage allowed in pro- 
 portion to the value of the cargo saved must 
 be added to these, and if the aggregate ex- 
 ceeded the value of the cargo when delivered 
 at destination, the loss would be total ; if it 
 did not, the loss would be partial only. iJo- 
 tetto V. Qwmey, 11 C. B., 176; 30 L. J. C. P., 
 257; 15 Jur., 1177. 
 
 37. Valued at £17,000. It would have cost 
 £10,500 to have repaired her at the port of dis- 
 tress, and whenT^paired she. would have been 
 worth only £7,500. But an owner wanting 
 such a ship for the particular purposes of his 
 trade, and having to elect whether he would 
 sell, repair or purchase, would have elected to 
 repair, because she could not have been built 
 or purchased at that time for £10,500. The 
 master corresponded with owners after he 
 reached the port of distress, but he was left 
 to act as he considered best for all parties 
 concerned. HeM, the -price of the ship in the 
 market after she was repaired, was not the 
 test of her real valuev — hence the loss was not 
 total, but average only. Cfrainger v. Martin, 
 2 B. ifc 8., 456 ; 8 Jur. (N. 8.), 995 ; 31 L. J. Q. 
 B., 186; B. c, affirmed, 4 B. & 8., 9; 11 W. R., 
 758; 8 L. T. (N. S.), 796. 
 
 38. She was submerged in deep water, with 
 a heavy cargo on board. A common peril of 
 destruction threatened ship and cargo as they 
 lay submerged. The most convenient method 
 of saving ship, or cargo, or both, was by rais- 
 ing both together. The cost of raising was an 
 extraordinary expense. Held, in determining 
 whether the ship was constructively a total 
 loss, the amount to be contributed by the car- 
 go must be deducted from the expense incur- 
 red for raising. Kmip «. Hattiday, 1 Ij..R. Q. 
 B., 530 ; 13 Jur. (N. 8.), 583 ; 35 L. J. Q. B., 150 ; 
 14 W. R, 697; 14 L. T. (N. 8.), 762; 6 B. & 8., 
 733. 
 
 39/ At the time she was abandoned she was 
 neither aground, wrecked nor sunk. Held, her 
 owners could not recover for a constructive 
 total loss, except she was unseawortby at flie 
 place, and it was impossible to make the re- 
 pairs there, or the making of them would have 
 required an expense exceeding her value when 
 repaired. LiTVdsayv.Le(U:7Ue}/,SF.& F., 903. 
 
 40. She came in collision with an iceberg, 
 
 but reached port in a greatly disabled condi- 
 tion. Held, in determining whether the loss 
 was constructively total, her real value, not the 
 value mentioned in the policy, must be con- 
 sidered. Stewart v. Gh-eenoek Uut. Int. Oo., 6 
 C. 0. 8., 359. 
 
 41. She sailed July 23d, from Old Harbor 
 for Port Antonio, to join convoy which was to 
 sail thence July 25th ; but bad weather pre- 
 vented her arrival there until August 3d, three 
 days after convoy had sailed. She should 
 have sailed with next convoy, but the crew 
 mutinied and refused to navigate the ship. 
 Three masters died in succession, which 
 caused further detention. She was then exam- 
 ined by the officer of the port, who found her 
 unfit to prosecute the voyage. Repaira would 
 have cost more than she would have been 
 worth when repaired. Insured abandoned. 
 H(^, she was a total loss. Ada/m v. Murray, 
 Faculty Dec, 1801 to 1807, p. 360. 
 
 42. The contract provided : " Insured shall 
 not have the right to abandon, unless the 
 amount which insurer shall be liable to -pay 
 under an adjustment of partial loss, exclusive 
 of general average, shall exceed half the 
 amount insured ;" but on the face of the policy 
 the following words were written: " It is un- 
 derstood that the above named vessel is in- 
 sured against total loss only." She struck a 
 reef in calm weather, and remained fast. In 
 six days thereafter insiured gave notice of 
 abandonment. Insurers refused it, but inter- 
 posed, got her off, and repaired her at an ex. 
 pense of £3,000. She was valued in the pol- 
 icy at £15,000. HM, whether there was a 
 constructive total loss, the law of Canada, not 
 of the United States, must determine, and the 
 test was whether a prudent owner uninsured 
 would have considered it worth his while to 
 attempt to save her. Meagher v. ^tna Int. 
 Go., 20 U. 0. Q. B., 607. 
 
 43. She was driven ashore near Fairport, 
 and an abandonment tendered to insurers, 
 and refused. The master then contracted with 
 certain persons in, behalf of insurers and all 
 persons interested, to get her off, which was 
 accomplished; but the jury found specially 
 that a prudent owner would have abandoned 
 her. Held,Va» loss was constructively, total, 
 and the insured was entitled to recover for it. 
 King «. Wettem Am. Go., 7 U. C. C. P., 800. 
 
 72a 
 
1445 
 
 TRANSHIPMENT OF CARGO— ULTRA VIRES. 
 
 1M6 
 
 Wliatis. 
 
 TRANSHIPMENT OF CARGO. 
 
 The policy covered outfits, "One fourth of • 
 the catcliings to replace the outfits consumed." 
 There was no evidence to show that she might 
 not have been made seaworthy, or, at least, cap- 
 able to reach a port where she could have been 
 repaired and made seaworthy for the remainder 
 of the voyage. The master transhipi>ed the 
 cargo and sold the vessel. It was subsequent- 
 ly lost E^d, when a cargo is unnecessarily 
 transhipped, insurers are discharged (citing 1 
 Phillips Ins., sec. 983; Oliverson v. Brighton, 
 8 Q. B., 781 ; Bold v. Rotheram, id^ 797). Pad- 
 dock V. Cotiuaereidl Ins. Co., 3 Allen, 93. 
 
 TRAVELING BY PRIVATE OR PUBLIC 
 CONVEYANCE. 
 
 (See ACCEDBNTB.) 
 
 Against death or personal injuries " Caused 
 by any accident while traveling by public or 
 private conveyance provided for the transpor- 
 tation of passengers." Deceased was proceed- 
 ing from Bathbone, in Steuben county, to 
 Madison. She had traveled on the Erie road 
 to Watkins, at the head of Seneca lake, and 
 there took steamboat to Geneva. The railway 
 station was about seventy rods from the 
 steamboat landing, and while walking to it, 
 she slipped and fell upon the sidewalk, 
 sustaining serious injuries, from which she 
 died. Held, the words of the contract must 
 be construed so as to carry info eftect the in- 
 tention of the parties, so far as that intention 
 could be determined from the language used; 
 that the court must consider every important 
 feature in the case, namely: the frequent 
 change travelers necessarily make from one 
 train of cars to another, in the prosecution of 
 a journey; that though the deceased might 
 have employed a hack to carry her from the 
 wharf to the railway station, she was not 
 bound to do it, so long as she acted as the 
 great majority of travelers did; hence the in- 
 jury was received while she was actually 
 prosecuting the journey, and while traveling 
 by public conveyance witliin the meaning of 
 the contract (citing Theobold v. Railway Pas- 
 senger Ass. Co., 10 Exclir., 45). Northmp v. 
 
 Railway Passenger A»s. Co., 43 N. Y. (4 Hand), 
 516; reversing s. o., 2 Lans., 166. 
 
 ULTRA VIRES. 
 
 I. "What is. 
 
 II. NOT. 
 
 I. What is. 
 
 1. A corporation is a mere creature of the 
 act to which it owes its existence, and it can 
 exert its powers only in the manner author- 
 ized by the act Sead v. Providence Ins. Go., 
 2 Cranch, 127. 
 
 2. A corporation cannot make a contract 
 for the loan of money, or take security for it, 
 unless the power is expressly given or neces- 
 sarily incident to the powers granted. North 
 River Ins. Go. v. Lanoreaee, 3 Wend., 488. 
 
 3. A mutual life insurance company, by its 
 charter authorized to take the notes of its 
 members for premiums, and, by the charter, 
 persons insured were made members. The 
 company made a policy to one person, and 
 took the note of another for the premium. 
 Held, the maker of the note was not liable. 
 Mutual Bene/it Life Ins. Go. c. Davis, 18 N. Y., 
 569. And that the company had no authority 
 to take the note. Ibid. 
 
 4. The managers were authorized to issue 
 special rate policies to persons who had be- 
 come members by taking policies of mutual 
 insurance. Special policies were granted to 
 H., who had not taken any policies of mutual 
 insurance. Held, they were void, because 
 ultra vires. In re Arthur Average Association, 
 Ex parte Hargraee, 10 L. R. Ch., 543. 
 
 5. The deed of settlement conferred power 
 to grant insurances upon lives, endowments, 
 and annuities, and at an extraordinary general 
 meeting it was resolved to extend the business 
 to marine insurance, which was subsequently 
 embodied in a supplemental deed, and exe- 
 cuted by some, but not by all the shareholders. 
 The business was so extended, and reports 
 were made to the registry office, which stated 
 that the business of marine insurace was in- 
 cluded. After the business was carried on for 
 a year and a half, an order to wind up was 
 
 723 
 
1447 
 
 UNTIL SAFELY MOORED — USAGE AND CUSTOM. 
 
 1448 
 
 Migcellanecms. 
 
 made. Hdd, the act extending the business 
 of the company was ultra tirei, and persons 
 claiming for marine losses coald not come In 
 as creditors of the company in respect of such 
 losses. In re Phanix Life Ass. Co., 31 L. J. 
 Ch., 749 ; 3 Johns. & H., 441 ; In re Bra Ass. 
 Oo., Williams' Case, 6 Jur. (N. S.), 1334; 3 
 Johns. & H., 400. 
 
 II. What is not. 
 
 1. The company was incorporated by the 
 legislature of Virginia, and was authorized to 
 Insure buildings in the county of Alexandria, 
 against fire ; but Alexandria was subsequently 
 separated from Virginia. Bdd, the insurance 
 upon buildings in Alexandria was not deter- 
 mined by the separation. Kom v. Mutual 
 A»s. 8qe., 6 Cranch, 192. 
 
 2. Declaration upon a policy of insurance. 
 Plea: tliat the business of tlie company was 
 to be conducted on tlie plan of mutual insur- 
 ance under the act of 1849, and that receiving 
 a deflnite sum of money in lieu of a premium 
 note was not warranted by the act; that it was 
 in violation of the statute, and therefore the 
 policy was made without authority and void. 
 Demurrer to the plea. Held, the general act 
 of April 10, 1849, authorizing the .incorpora- 
 tion of insurance companies, and the eighth 
 section of the charter of this company, made 
 under that act, provided for the payment of 
 cash premiums as well as premiums secured 
 by notes, at the election of the insured; there- 
 fore the payment of the premium in cash was 
 legal, the policy valid, and the plea bad. 
 Union Ins. Oo. e. Boge, 31 How., 35; 8. c, 17 
 How. Pr. (N. Y.), 127. 
 
 3. Policy made by a mutual company of 
 the state of New York, insuring property in 
 Canada, is valid; the act of incorporation au- 
 thorized it to insure the property of all per- 
 sons who became members. Western v. Oen- 
 esee Mut. Ins. Oo., 12 N. Y^ 258. 
 
 UNTIL SAFELY MOORED. 
 
 1. " Until she shall be safely arrived at such 
 port of discharge, and moored twenty-four 
 hotm in good safely." She arrived at Valen- 
 
 734 
 
 tia with a cargo of guano, and came to anchor 
 February 5, 1867. That port was an open 
 roadstead, and all vessels must necessarily be 
 partially discharged into lighters, some of 
 them being admitted into an inner basin after 
 largely lightened. She commenced putting 
 out cargo into lighters, with an intention of 
 going into the basin when light enough, but 
 was wrecked before she was admitted, March 
 3d. Held, she had safely arrived at her port 
 of discharge, and had been there moored 
 twenty-four hours in good safety before the 
 loss occurred. Bramhall v. Bun Mut. Ins. Co., 
 104 Mass., 510. 
 
 2. "To Rouen, and until she shall be 
 moored twenty-four hours in safety there." 
 She arrived February 1st, an embargo hav- 
 ing been previously laid on all English ves- 
 sels in port. Tlie captain went ashore the day 
 he arrived, and the embargo was laid on the - 
 ship the following day. He was permitted to 
 discharge cargo, and deliver it to the con- 
 signees; but she was detained as prize, the 
 master and crew being allowed subsistence 
 as prisoners of war, from the time of her ar- 
 rival. Held, she was not moored twenty-four 
 lionrs in safety, for immediately she entered 
 the port she was, to all intents and purposes, 
 captured by the French. Minett v. Anderson, 
 Peake'sN. P. C, 377. 
 
 3. " On ship from Leghorn to port of Lon- 
 don, and until there moored twenty-four hours 
 in good safety." She arrived at Freshwater, 
 July 8th, and moored, but was ordered to re- 
 turn to quarantine. The crew deserted. She 
 was taken back on the 30th, performed quar- 
 antine, was then sent up for orders to air the 
 goods, and was burned August 33d, before she 
 returned. Held, she was never moored in 
 good safety, for that means with opportunity 
 to unload. Welles v. Eames, 2 Strange, 1343. 
 
 USAGE AND CUSTOM. 
 
 I. WHEUr THET AFFECT THE BIGHTS OF THE 
 PARTIES. 
 II. DO HOT AFFECT TUB BieHTB 
 
 OF THE FABTIES. 
 
 III. Gekbbaixt. 
 
1449 
 
 USAGE AND CUSTOM. 
 
 1450 
 
 When they affect, and when they do not affect, the rights of the partiee. 
 
 I. When they atfect the eights of 
 
 THE PAETIES. 
 
 1. When the insurers know, or, by tlie 
 usage and course of trade, ought to know, 
 that certain papers ought to be on board 
 for the purposes of protection in one event, 
 but which might endanger the property in 
 anotlier event, they Ucitiy consent that Uie pa- 
 pers shall be so used to protect the property. 
 LMngston v. JIarj/land Ins. Co., 7 Cranch, 506, 
 
 2. In construing policies of insurance, the 
 usages of trade must be taken into considera^ 
 tion. Haneox v. FVihiug Ins. Co., 3 Snmn,, 133. 
 
 3. " Warranted filled in with brick.'' Held, 
 competent to prove a usage amottg insurers to 
 treat a building filled in with brick iu front 
 and rear, and supported by brick buildings 
 on both sides, as fulfilling the warranty. I'ouh 
 Ur e. JBtna Fire las. Co., 7 Wend., 270. 
 
 4. evidence of a usage among commission 
 merchants to insure goods consigned to them 
 without orders is admissible. De Forest c 
 FuUon Fire In*. Co., 1 Hall, 84. 
 
 5. Policy on a whaling ship. She com- 
 menced taking sea elephants, amphibious 
 animals covered with hair like seals. They 
 are killed on land with lances and harpoons, 
 sometimes shot. The same process is used 
 for extracting their oil as for extracting whale 
 oil, but it is more valuable than the latter, 
 and is known in commerce as "Elephant 
 oil." Held, it was proper to show by persons 
 familiar with the business of whaling, that tlie 
 taking of elephants was usually a part of the 
 business or trade of a whaling ship. GhUd v. 
 Sua M«t. Im. Co., 3 Sandf., 26. 
 
 6. Upon a question, whether the risk has 
 been increased by taking a deck load of cot- 
 ton, it is competent to prove the general usage 
 for the same class of vessels in various kinds 
 of navigation and different seasons of the 
 year. Lapham e. Atla* Int. Co., 34 Pick., 1. 
 
 7. It is competent to prove, that among 
 owners and insurers of whaling ships, an 
 insurance on outfits covers one-quarter of the 
 catchings. Jfaey o. Wltaliag lot. Co., 9 Met, 
 354. 
 
 8. On a patent leather manofactoty. The 
 printed terms prohibited the use of benzole, 
 but a written clause gave liberty to keep five 
 barrels of benzole in a shed one hundred feet 
 from the building. A witness was called to 
 testify as to the mode of using benzole in 
 
 similar factories situated in a town many 
 hundred miles from the factory insured. fiei-Z, 
 admissible, that if anotlier mode provailcd 
 the defendants should have proved it Citi- 
 zens Ins. Co. c, McLaagUin, 58 Peun. St., 485. 
 
 9. On tobacco. New York to Mobile, dam- 
 aged on the voyage to an extent exceeding 
 fifteen per cent, the minimum partial loss 
 stipulated in tlie policy. It was proven that 
 by the custom of insurers and insured at 
 Mobile, partial losses on valued policies were 
 adjusted by paying the difference between the 
 sales price of the thing iigurcd and the price 
 stipulated in the policy. Held, the custom, if 
 shown, must govern aud the general law regu- 
 lating the assessment of damages imdcr such 
 policies must give way. Fulton Im. Co. «. 
 Milner, 23 Ala., 420. 
 
 10. One of tlie questions between the par- 
 ties was whether it was the custom for vessels 
 engaged in the Labrador trade to keep their 
 cargoes on board for seversd months after their 
 arrival on that coast; and it was, held, evi- 
 dence to prove the custom at Newfoundland 
 was admissible. Noble «. Kennmoay, 3 Dong., 
 510. 
 
 1 1. If the course of dealing between the 
 shipper and the consignee has been such that 
 the practice of the one has been to order the 
 other to insure and for the other to comply, 
 the shipper has a right to expect that his order 
 will be obeyed unless there is notice to the 
 contrary. Smith v. LasedUt, 3 Term, 187. 
 
 12. The question between the parties was, 
 whether they intended that the life insured 
 was in good health at the time the reinsurance 
 was made, and it was, hM, evidence was ad- 
 missible to prove a custom in cases of rein- 
 surance, to confine the warranty of health to 
 the date of the original insurance and to leave 
 to the reinsurers the necessity of inquiring 
 for themselves whether it was unaltered. Fos- 
 ter r. Mentor Life Aas. Co., 3 El. & Bl., 48; 
 18 Jut., 827; 33 L. J. Q. B., 145. 
 
 11. WhEK THET do not affect THE 
 
 bights of the parties. 
 
 1, "To a port in Cuba and at and from 
 thence to a port of advice in Europe." Ileld, 
 evidence to show a usage for such vessels to 
 go to two ports in tlie same island was inad- 
 missible, because the contract was written 
 and plain, and the evidence tendered was m- 
 
 725 
 
1451 
 
 USAGE AND CUSTOM. 
 
 1432 
 
 When they do not affect the nghia of the parties. 
 
 consistent with and repugnant to it. KearM 
 v: Marine Ins. Co^ 30 Wall., 488. 
 
 2. Evidence of usage to explain the con- 
 tract of insurance is admissible in cases only 
 where tlie policy is ambiguous, or the law 
 concludes it was made with reference to a 
 prevailing usage; but even tlien, the usage 
 must be proved and the opinions of witnesses 
 as to the usage are not admissible. Winthrop 
 ■B. Unim Im. Co., 2 Wash. C. C, 7. 
 
 3. This was a policy to reinsure the first 
 insurer. The defendant offered to prove a 
 usage that the reinsurer pays to the first in- 
 surer only so much of the sum reinsured as 
 bears the same proportion to the value of the 
 property destroyed and covered by the first 
 policy. Held, inadmissible, for the reinsurer 
 was bound to answer according to the plain 
 terms of his contract, namely, the sum re- 
 insured, if the loss amounted to or exceeded 
 it. Jlom v. Mutuai Safety Ins. Co., 1 Sandf., 
 137; 2N.Y.,235. 
 
 4. Defendants offered evidence of a usage, 
 on the part of persons insured, to give notice 
 of any increase of risk. Held, inadmissible 
 to control the legal effect of the policy. Steb- 
 Mm V. Globe Ins. Go., 2 Hall, 632. 
 
 5. The defendant offered proof of a usage 
 and custom in the city of New York among 
 companies reinsuring others, to abate fifteen 
 per cent firom the premium stipulated to be 
 paid: also that the plaintiff agreed at the 
 time the policy was made to abate fifteen per 
 cent from the stipulated premium. Held, the 
 language of the contract was unequivocal and 
 unambiguous, hence neither usage nor cus- 
 tom could be received to control its plain 
 terms, nor could a contemporaneous parol 
 agreement be received for the purpose offered. 
 8t. Nicholas Ins. Co. v. Mercantile Mut. Ins. Co., 
 5 Bos., 238. 
 
 6. The law does not recognize a usage for 
 the master of a vessel stranded to sell the 
 cargo without necessity. Bryant t. Common- 
 wealth Ins. Co., 6 Pick., 131. 
 
 7. A usage which shows when a voyage is 
 terminated, so far as it relates to the payment 
 of premium, is not admissible to show when 
 the risk terminates. Meifft v. Mutual Marine 
 Ins. Co., 2 Cush., 439. 
 
 8. If a usage leads to consequences absurd, 
 or which could not be fairly presumed to have 
 been contemplated by the parties, the pre- 
 sumption that it was a part of the contract is 
 
 73S 
 
 repelled. SeceoTnb v. Provincial Int. Co., 10 
 Allen, 305. 
 
 9. In determining a loss under an open 
 policy, the market value of the goods at Hie 
 inception of the risk is the proper basis of 
 damage, and not the invoice cost, nor is evi- 
 dence of a contrary usage at that port admissi- 
 ble to vary this rule. Warren v. PranMin Ins. 
 Co., 104 Mass., 518. 
 
 10. The contract obliged insured to keep a 
 watchman in the mill every night. Hdd, it 
 was not competent to prove a usage or prac- 
 tice of insured to allow the watchman to leave 
 at twelve o'clock on Saturday night and re- 
 turn at the same hour on the following night; 
 nor was it competent to prove that such usage 
 and practice was communicated to the insur- 
 er's agent at the time the survey was made, 
 nor that the insurer's agent had often visited 
 the mill for the purpose of making inquiries 
 in regard to that matter, and that in answer to 
 his inquiries he had been informed of the 
 practice. Olendale Woolen Co. v. Protection Ins. 
 Co., 21 Ctonn., 19. 
 
 11. "Prohibited from the River and Gulf 
 of St Lawrence, between September 1st and 
 May 1st." The policy was made at Rockland. 
 Insured offered to prove that by a usage in 
 Boston, the Strait of Korthumberland and 
 Pictou was not deemed within the Gulf of St 
 Lawrence. Held, the usage could not affect a 
 contract made at Rockland, unless the same 
 usage was shown to exist there; nor could 
 the usage affect the parties unless it were 
 brought home to their knowledge, or it was 
 so general and well established as to raise a 
 presumption that the parties had knowledge 
 of it, or that they were bound to inform 
 themselves of it. Cobb v. Lime Bode Fire and 
 Marine Ins. Co., 58 Me., 336. 
 
 12. Evidence of a local custom among in- 
 surers, not communicated to insured, nor of 
 such notoriety as to raise a presumption that 
 he knew it, is not admissible ; nor the opinions 
 of witnesses as to the materiality of a fact ; 
 nor what effect the fact would have had upon 
 the mind of a prudent insurer. Hartford 
 Protection Ins. Co. v. Harmer, 2 Ohio Sf, 
 452. 
 
 13. If the evidence tendered will not throw 
 light upon any question in issue, it is irrele- 
 vant, and should be rejected. A custom or 
 usage of other companies or of the contract- 
 ing company is incompetent td affect the 
 
1453 
 
 USE AND OCCUPATION (PROHIBITED). 
 
 1454 
 
 What vitiates. 
 
 ■written contracts King v. Enterprise Itis. Co., 
 45 Ind., 43. 
 
 14. A particular usage or custom cannot be 
 pleaded against the express stipulations of 
 the conti-act; nothing but a general custom, 
 having the effect and operation of a general 
 rule of lavr can be pleaded against a contract 
 -which is plain, express and unambiguous in 
 its terms. LcUtomus v. Partners Mutuai Fire 
 Ins. Go., 3 Houst., 254. 
 
 1 5. " Beginning the adventure of said goods 
 and merchandise from and immediately after 
 the loading thereof on board the said vessel or 
 boat at New Orleans." They were destroyed 
 by fire on the wharf at the lake end of the J. 
 & P. R B. Held, not a loss within the policy ; 
 that evidence of a custom to include the risk 
 of fire on such goods, at such a place, was not 
 admissible, because the language of the con- 
 tract was too plain and unambiguous. Smith 
 V. Mobile Navigation Ins. Co., 30 Ala., 167. 
 
 1 6. " On the body, tackle, apparel, ordnance, 
 ammunition, artillery, boat and other furni- 
 ture." The pinnace was slung on the davits 
 according to custom, for the better security 
 of sailors who might fall overboard. It 
 was carried away in a storm. Insurers of- 
 fered evidence tending to prove a custom 
 not to pay for boats slung in that manner 
 and lost Held, The evidence was not admis- 
 sible, because it was a direct variance from 
 the words of the policy, and in plain opposi- 
 tion to the language used. Usage may be ad- 
 missible to explain what is doubtful, but it is 
 never admissible to contradict what is plain. 
 See the cases hereon, 1 Phillips Ev., 553 to 
 559, and 2d vol., 36 and 37; Starkie on Ev., 
 1032 to 1038. Blaekett «. Boyal Exchange Ass. 
 Co., 2 Tyrw., 266 ; 1 L. J. (N. 8.) Ex., 101 ; * 2 
 Cromp. & J., 244. 
 
 17. Evidence of custom or usage cannot be 
 received to explain a policy where the lan- 
 guage is plain and unambiguous. Hare v. 
 BarstotB, 8 Jur., 928. 
 
 18. On money advanced on account of 
 freight " Warranted free from average under 
 five per cent., unless general." She was 
 driven into a port of distress and obliged to 
 make repairs there; and in order to make 
 them the cargo was unloaded. Insured was 
 compelled to contribute in general average. 
 Plea that the policy was made in London ; and 
 that by custom there, insurers of money ad- 
 Touced on account of freight were not liable 
 
 to pay or make good any part of a general 
 average loss or contribution. Held, the pica 
 was bad, because the usage set up was in con- 
 tradiction of the written contract. Hall v. 
 Janson, 4 EI. & Bl., 500; s. c, 1 Jur. (N. S.), 
 571; 24L. J. Q. B.,77. 
 
 III. Geneeaily. 
 
 1. A usage of trade may be proved by parol 
 although it originated in a law or edict of the 
 government Livingston v. Marytand Ins. Qd., 
 7 Cranch, 506. 
 
 2. Usages become laws by their frequent 
 repetition, their reasonableness, their adapta- 
 tion to promote the interests of those to whom 
 they are applied, and their common adoption 
 in the community of those interested ; but 
 when the question is first presented as to giv- 
 ing legal effect to an alleged usage, where its 
 binding force or proof of its admissibility is 
 denied by one of the parties, the court will 
 not enforce it or give it the sanction of law, 
 unless it be reasonable, convenient, and adapt- 
 ed not only to increase facilities in trade, but 
 to promote just dealings between parties. 
 Maey «. Whaling Ins. Co., 9 Met, 354. 
 
 USE AND OCCUPATION (PROHIBITED). 
 
 I. What vTTiATES. 
 
 II. DOES NOT VITIATE. 
 
 III. Questions fob the juby. 
 
 I. What vitiates. 
 
 1. The policy prohibited carrying on or 
 exercising in the building certain hazardous 
 or extra hazardous business. Held, a pros- 
 pective or promissory warranty; and a viola- 
 tion of it avoided the policy, though it did 
 not cause the loss, the prohibited use being 
 discontinued before the loss, and though the 
 insured did not know of the use. Mead v. 
 NoHhwe*twn Ins. Co., 7 N. T., 530. 
 
 S. On merchandise, hazardous and not haz- 
 ardous — cabinet ware included under the 
 designation hazardous. Held, using the prem- 
 ises for putting together and finishing chairs 
 was not permitted by the policy, because the 
 
 727 
 
1455 
 
 USE AND OCCUPATION (PROHIBITED). 
 
 1456 
 
 What vitiates. 
 
 term "cabinet ware " includes only finished ar- 
 ticles. Appleby z. Astor Fire Ins. Co., 54 N. 
 T., 253. 
 
 3. Policy prohibited use of the buildings 
 for any trade or business denominatfed hazard- 
 ous or extra hazardous, or specified in the 
 memorandum of special risks and tlie condi- 
 tions annexed, one of which prohibited any 
 increase of the risk by any means within con- 
 trol of tlie insured, unless consented to by 
 indorsement on the policy. Seld, using any 
 part of the premises for business prohibited 
 avoided it. Lee v. Howard Fire Ins. Co., 3 
 Gray, 583. 
 
 4. The memorandum of special hazards 
 annexed to the polfcy prohibited all unlawful 
 use of the premises. The preliminary proofs 
 of loss stated that it was occupied as a hotel. 
 Defendant proved that it had not been licensed 
 as a hotel. Held, a defense to the action. 
 Cam,pbell «. Cha/rter Oak Fire and Marine Ins. 
 Go., 10 Allen, 3t3. 
 
 5. On a stock of liquors, in a building occu- 
 pied as a liquor store, kept for sale in viola- 
 tion of Gen. Stat., ch. 86. Held, the policy 
 was void. Kelty v. Some Ins. Co., 97 Mass., 
 288. 
 
 6. Stipulated : " The following risks (among 
 which were mills and manufactories), being 
 considered more hazardous than others, and 
 buildings intended to be occupied by persons 
 cariying on any of the trades or business men- 
 tioned, or in which any large quantities of 
 certain goods mentioned are deposited, will 
 be subjected to an extra premium oh that ac- 
 count. No policy will be construed, therefore, 
 to extend to such a risk, unless liberty be 
 given for the purpose, and expressed hereon." 
 Held, the making of muslin window shades, 
 in the fifth stoly of the building, by nine or 
 ten persons regularly employed in that bus- 
 iness as the sole means of their livelihood, 
 constituted a manufactory within the meaning 
 of the condition, and was a bar to the plaint- 
 iffs action. Steinmitz «. franklin Fire Ins. 
 Co., 6 Phila., 21. 
 
 7.. " On a building occupied as a country 
 store." Stipulated: "In case the premises 
 shall, at any time during the period for which 
 this policy would otherwise continue in force, 
 be used for the purpose of carrying on therein 
 any trade or vocation, or for storing and keep- 
 ing therein any articles, goods, or merchanise 
 denominated hazardous, extra hazardous, or 
 728 
 
 specially hazardous, in the second class of the 
 classes of hazards annexed, from thenceforth, so 
 long as the same shall be so used, this policy 
 shall be void." At the time the policy was 
 taken, and from thence to the time the fire oc- 
 curred, the premises were used in part as $ 
 stable. Among the extra hazardous risks, 
 that of a private stable was enumerated. Held, 
 a violation of the contract, and this was not 
 cured by the fact that insurers' agent, who 
 made the policy, knew at the time that the 
 premises were used for the purpose prohibited. 
 Dewees v. Manhattan Ins. Co. 85 N. J., 366. 
 
 8. On building occupied for a dwelling 
 house, the basement being of stone and wood. 
 The charter provided : " No policy shall ex- 
 tend to any sugar house, bake house, distil- 
 house, joiner shop, or other house, except on 
 such terms only as shall be specially agreed 
 on by the directors, unless expressly men- 
 tioned in the policy" The defendant pleaded 
 that after the policy was assigned, the prem- 
 ises were used and occupied as a joiners shop, 
 and that the risk was thereby increased. The 
 plaintiff replied, it was so used and occupied 
 without the knowledge of the plaintiff HM, 
 the plea was a good bar, and the replication no 
 answer to it. Hoxsie 'o. Providence Mitt. Ins. 
 Co., 6 R. I., 517. 
 
 9. By the classification of hazards annexed 
 to the policy, planingmills, sawmills and car- 
 penter shops were designated "hazardous;" 
 and by the terms of the policy the use of the 
 premises for any hazardous trades, business 
 or vocations, in the conditions mentioned, 
 were prohibited, unless by agreement indorsed 
 upon the policy. The policy was on a plan- 
 ingmill and sawmill." The second story was 
 used as a carpenter shop, a risk in the same 
 class of hazards as planing and sawmills. 
 Held, using the second story as a carpenters 
 shop was a breach of tlie conditions. (The 
 court refused to adopt the ruling in the case 
 of Smith v. Mechanics and Traders Ins. Co., 
 33 N. T., 399.) Matthews v. Qaeen City Ins. 
 Co., 2 Gin. Sup. Ct., 109. 
 
 10. Stipulated that articles denominated 
 hazardous, mentioned in the memorandum, 
 should not be kept upon the pmnises. In- 
 sured used the building as a grocery house, 
 and kept for sale some of tlie prohibited arti- 
 cles. Held, the policy was void. Davern r. 
 Merchants Ins. Co., 7 La. An., 344. 
 
 11. Policy to a mortgagee. Stipulated: 
 
I45T 
 
 USE AND OCCUPATION (PROHIBITED). 
 
 1458 
 
 What does not vitiate. 
 
 " The interest of the mortgagee shall not be 
 invalidated by any act of the mortgagor; but 
 tlie mortgagee shall notify insurers of any 
 change of ownership or hazard as soon as the 
 same shall come to his knowledge, and shall, 
 on reasonable demand, pay an additional 
 charge for the same." The premises were 
 insured as a dwelling house, all specially 
 hazardous trades prohibited. Among these 
 were workshops, manufacturing establish- 
 ments, trades and mills. The owner used it 
 as a workshop in the business of currying, of 
 which insured had notice. Held, insured 
 warranted that the building should not, withia 
 his knowledge, lie used as a place of business 
 for any of the purposes prohibited; the fulfill- 
 ment of the warranty was a condition prece- 
 dent, and without it no recovery could be had. 
 Gainer v. Metropolitan Ins. Co., 13 Minn., iSS. 
 
 12. The policy prohibited any alterations, 
 additions or erections of buildings about the 
 premises, tmless made with insurer's consent. 
 The buildings were enlarged and turned iato 
 a hotel and shop. The bams were moved and 
 turned round. Held, the policy was void. 
 £unta v. Niagara District Mutual Fire Int. 
 Co., 16 U. 0. C. P., 593. 
 
 13. Application described the property as 
 dry goods, in the first and second floors of 
 a certain building. The policy stipulated: 
 "Applications shall specify the construction of 
 the building containing the property to be in- 
 sured and by whom occupied, and if the risk 
 shall be increased by any means within the 
 control of insured, or if the building shall be 
 occupied so as to increase the risk, the policy 
 shall be void." Hat hleaching was included 
 in the class of risks called " extra hazardous." 
 The plaintiff kept a sttKsk of millinery, and 
 bleaching bonnets was done in the third story. 
 A stove was introduced in the cellar for 
 bleaching purposes. Held, bleaching bonnets 
 was " hat bleaching," and extra hazardous by 
 agreement of parties. There was no ques- 
 tipn for the jury as to increase of risk; there- 
 fore, insurers were released. Merrick f>. Pro- 
 Dineial Ins. Co., 14 U. C. Q. B., 439. 
 
 II. What does not vitiate. 
 
 1. A change of tenants does not affect the 
 policy, though the first was a prudent person 
 and the second grossly careless. GaUa ^. Mad- 
 
 ison County Mut. Ins. Co., 5 N. T., 460; 3 
 Barb., 73. 
 
 2. The house was burned while it was being 
 repaired and painted. Oil and turpentine 
 were in it for making paint The policy stip- 
 ulated it should be void if the building should 
 be used for any purpose denominated hazard- 
 ous, or for the keeping of anything hazardous. 
 Oils and turpentine were declared by the pol- 
 icy extra hazardous. Held, having them in 
 the house for making necessary repairs was 
 no violation of the condition. O'JS'id v. Buf- 
 falo Ins. Co., 3 N. T., 133. 
 
 3. A condition that the premises shall not 
 be appropriated, applied, or used for the pur- 
 pose of carrying on or exercising any trade, 
 business or vocation, hazardous or extra haz- 
 ardous, is not violated by using them tempor- 
 arily for a purpose forbidden. Gates u. Madi- 
 son County Mut. Ins. Co., 5 N. Y., 469 ; 3 
 Barb^ 73. 
 
 4. A change of use does not avoid policy,on 
 building, unless the risk is increased. Blood 
 V. Howard Fire Ins. Co., 13 Cush., 473. 
 
 5. "On .a building occupied as a manufac- 
 tory of hat bodies. Carpenter's shop prohib- 
 ited." Held, the employment of a carpenter 
 to make necessary repairs did not invalidate 
 the contract, although it was stipulated that it 
 should cease so long as the premises should 
 he used for hazardous trades. Lounsbury «. 
 Protection Ins. Co., 8 Conn., 459. 
 
 6. On sundry buildings described as barns, 
 stated: "All the above described barns are 
 used for hay, straw, grain unthreshed, stabling 
 and shelter." Held, not a warranty Uiat the 
 barns should be used for hay, etc., only; that 
 the language was inserted to designate the 
 buildings, not to limit their use, or to deprive 
 insured of the right to use them in the same 
 manner as buildings of that description were 
 generally used, and that a single employment 
 not in the ordinary, common and appropriate 
 use of the buildings, would not change their 
 character nor affect the policy, unless it were 
 fraudulent or grossly careless; and not even 
 then, unless that employment was the cause 
 of the loss. Billings v. Tolland County Mut. 
 Ins. Co., 20 Conn., 139. 
 
 7. The conditions were part of the contract, 
 and they provided that no policy would be 
 construed to extend to certain risks speci- 
 fied, unless liberty were obtained by in- 
 dorsement upon the policy. Among the 
 
 739 
 
1459 
 
 VALID AND, VOID POLICIES. 
 
 1460 
 
 What are valid. 
 
 risks specified were, " Mills and manufactories 
 of any kind." The tenant kept hay, straw, 
 and produce, to which insuers consented. 
 This he discontinued and made brooms by 
 linnd from broom corn. Held, ttiis did not 
 come within the meaning of the term mills 
 arnd manufactories. Franklin ICire Ins. Co. v. 
 Brock, 57 Penn. St., 74. 
 
 8. The policy prohibited using the prem- 
 ises for purposes hazardous, extra hazardous 
 and specially iiazardous; and, in describing 
 the latter class of hazards," Carpenters, bams, 
 stables, breweries, camphene, etc," were 
 Damed.r Held, the prohibition had no refer- 
 ence to the employment of carpenters t-o erect 
 a building on ground adjacent unless the car- 
 penter used the premises insured as a work- 
 shop. Washington Fire Ins. Co. c. Davison, 
 30 Md., 91. 
 
 9. The defendant pleaded : " It was agreed 
 that none of the following trades should be 
 carried on viz : — grist, saw, paper, and other 
 mills, manufacturing or mechanical opera- 
 tions, requiring fire heat, or in which wood, 
 chips or shavings are made ; that before the 
 destruction of the premises, the business of 
 kiln drying corn meal by fire heat was carried 
 on in the premises. Replication: — Kiln 
 drying corn meal was incident to a steam 
 flouring mill, and that the premises were in- 
 sured as such. Held, a good answer to the 
 plea. But, if it was not an incident to a 
 steam flouring mill or a proper appliance in 
 carrying on the business, the mere fact that it 
 was in existence and in operation in some 
 part of the mill at the time the policy was 
 made, conferred no right to continue its use 
 after the policy was made. Merchants and 
 Manufacturers Ins. Co. v. Washington Mut. 
 Ins. Co., 1 Handy, 181; affirmed, id., 408. 
 
 10. Plea that there was a change of occu- 
 pancy, and that the by-laws required the 
 insurer's approval of it ; that plaintiff though 
 the occupier at the time of eflecting the in- 
 surance was not the occupier at the time of 
 fire, but that A. B. was ; that notice of that 
 change was not given to insurer, contrary to 
 the by-laws. Held, upon demurrer, a change 
 of occupancy was not the kind of change to 
 which the by-laws applied. Held, aUso, a plea 
 setting up a lease for a term, though in one 
 sense an alienation, was not such as the policy 
 contemplated. Hobson v. WeUington Fire Ins^ 
 Co., ff tJ. a Q. B., 356. 
 
 730 
 
 , III. Questions foe the juey. 
 
 On stock of flour and grain contained in 
 their stone and brick flouring mill. All 
 trades or vocations, designated hazardous 
 in the conditions annexed were prohibited. 
 Mills, manufactories, and all mechanicnl 
 operations requiring fire heat, were declared 
 hazardous in the conditions annexed. The 
 premises were used for the purpose of kiln 
 drying corn meal by fire lieat. Held, whether 
 the use of the kiln in the mill, for the pur- 
 pose of drying corn meal, was an appropriate 
 and proper part of, or incident to, a flouring 
 mill, was a question for the jury, and not for 
 the court; that if the business of manufac- 
 turing corn meal, and kiln drying corn for 
 that purpose, did not constitute a part of the 
 appropriate or known business of a steam 
 flouring mill, the use of the kiln was a viola- 
 tion of the terms of the contract. Washington 
 Mut. Ins. Co. V. Merchants and Mavmfacturers 
 Ins. Co., 5 Ohio St, 450. 
 
 VALID AND VOID POLICIES. 
 
 I. What abe taud. 
 
 II. TOID. 
 
 I. What aee vaud. 
 
 1. If the policy provides that it is, " to be 
 proof of interest," that is not evidence that it 
 is a wagering policy, nor does the failure to 
 aver an interest, coupled with the words of the 
 policy, amount to evidence that it is a wager- 
 ing policy. Olendenning v. Church, 3 Caines, 
 141. 
 
 2. In wager policies the loss should be ab- 
 solutely and finally total. Buchanan v. Ocean 
 Ins. Co., 6 Cow., 318. 
 
 3. A wager policy is a valid contract at 
 common law. St. John v. Amertvan Mutual 
 Life Ins. Co., 13 N. Y.. 31; 8. c, 2 Duer, 419. 
 
 4. " On the commission, privilege, etc., of 
 the master." Held, lawful. King v, Olover, 
 5 B. & P., 206. 
 
 6. Policy dated October 26, 1852, £499 19s., 
 payable to his widow ; and if there should be 
 none, then to his executors. Held, it was valid 
 notwithstanding 13 and 14 Vict, ch. 115, sec. 
 
1461 
 
 VALID AND VOID POLICIES. 
 
 1462 
 
 What are void. 
 
 2. Clayton v. Owen, 31 Beav., 285; 8 Jur. (N. 
 S.), 1117; 31 L. J. Ch, 825; 10 W. R., 770; 6 
 L. T. (N. SO, 862. 
 
 6. The policy insured the return of a cer- 
 tain whale ship, with a certain quantity of 
 blabber. Held, valid, and not within 19 Gko. 
 U, ch. 87. Addison v. Duguid, Faculty Dec. 
 1792 to 1796, p. 83 ; 8. c. decided the other way. 
 Faculty Dec. 1796 to 1801, p. 64. 
 
 7. A. pledged his ship to secure a loan of 
 £2,700, and insured her in the name of the 
 lender. The policy recited that " J. S., as 
 agent, as well in his own name as in the name 
 of every other person to whom the same doth, 
 may or shall appertain, in part or in all, doth 
 make insurance and cause to be insured, etc." 
 Meld, the policy was valid, notwithstanding 
 28 Geo. Ill, ch. 56, for inserting the name of 
 J. S. was a sufficient compliance with the 
 statute; the words " as agent," being disre- 
 garded. Symen v. Glasgow Ins. Co., 19 Scot. 
 Jur., 49. 
 
 n. What aee void. 
 
 1. Within the meaning of the law of Massa- 
 chusetts, tiiere cannot be a gaming policy, un- 
 less both parties intend it as such ; if one in- 
 tends to game, and the other does not, they 
 do not come <td idem; that if one intends to 
 write a policy upon interest, and tiie other is 
 misled to write one not upon interest, it is a 
 fraud, and the policy is void. Alsop v. Com- 
 merdai Ins. Co^ 1 Sumn., 451. 
 
 8. An enrolled citizen of the United States, 
 liable to be drafted into the military service, 
 contracted with A. to procure for him a sub- 
 stitute, or otherwise to clear him from the 
 draft, and save him harmless from cost and 
 expense in consequence thereof, and, in con- 
 sideration thereof, delivered his promissoiy 
 note to A. HM, the contract is void as against 
 public policy; there was no consideration for 
 the promissory note. O'llara «. Carpenter, 23 
 Hich., 410. 
 
 3. Action to recover premiums on policies 
 previously issued. The insurer was a copart- 
 ner with M., and it was agreed between them 
 that the profiu of underwriting should be 
 divided. Held, the policies were void under 
 6 Geo. I, ch. 18, sec. 13; hence, the premiums 
 could not be recov«red. Branten v. Toddy, 
 1 Taunt, 6. 
 
 4. A policy was effected by Helen for two 
 
 years upon her own life. Her executor brought 
 suit upon it. Held, it was proper for the jury 
 to determine whether the policy was made in 
 the name of the deceased for the purpose mere- 
 ly of conferring its benefits upon a person who 
 had no interest in her life ; that if the jury 
 were satisfied that such was the purpose of 
 the deceased, it was a fraudulent evasion of 
 the statute 14 Geo. Ill, ch. 48, which rendered 
 the policy void. Waineuright v. Bland, 1 31. 
 «& Rob., 481 ; s. c, 6 Tyrw., 417 : 1 Mee. & W., 
 32; 8. c, 5 L. J. (N. S.) Ex., 147. 
 
 5. An agreement to pay £100, in case Bra- 
 zilian shares shall be sold at a certain sum on 
 a certain day, is a contract of insurance, and 
 void under 14 Geo. Ill, ch. 48, for there is no 
 insurable interest. Pater son r-. PoueU, 9 Bing., 
 320; 2 M. & Scott, 399. 
 
 6. Policy upon the life of Charlotte. Neither 
 her name nor the name of any other person 
 was inserted in it, as a person fur whose use 
 or benefit it was made. Held, if the person 
 whose life was insured was the person inter- 
 ested, the policy was void, because the statute 
 14 Geo. Ill, ch. 48, sec. 2, had not been com- 
 plied with. Hodson ti. Observer Life Ass. Soe., 
 8 El. & Bl., 40; 8. c, 3 Jur. (N. S.), 1125; 26 
 L. J. Q. B., 303. 
 
 7. " On profit on cotton valued at £350, war- 
 ranted free of average without benefit of sal- 
 vage." Had, void under 19 Geo. II, ch. 37, 
 sec. 1. Smith v. Beynolds, 1 H. & N., 221 ; 25 
 L. J. Ex., 337 ; De Mattos v. North, 3 L. R. Ex., 
 185; 37 L. J. Ex., 116; 18 L. T. (N. S.), 797. 
 
 8. The policy recited: "Mary, wife of 
 William, hath agreed to effect an insurance 
 upon her own life with the Norwich, etc, for 
 the sum of £200, etc." It was intended for 
 the use and benefit of the plaintiff, and not for 
 the use and benefit, or for account of Mary. 
 Held, the name of the person for whose benefit 
 the poli(^ was intended must be inserted in it, 
 and as this was not done, it was void under 
 14 Geo. Ill, ch. 48, sec. 2. Svans v. Bignold, 
 4 L. R. Q. R, 622; 20 L. T. (N. S.), 659. 
 
 9. " Upon profits on a cargo of timber, from 
 Quebec to Newry, valued at £800, warranted 
 free from average, being against total loss only, 
 and without benefit of salvage." Held, void 
 under 19 Geo. II, ch'. 37, sec. 1, though tlie in- 
 sured was interested to the full amount in- 
 sured. Mortimer v. Broadwood, 17 W. R., 653 ; 
 20 L. T. (N. S.), 398. 
 
 10. The policies did not specify the names 
 
 731 
 
M63 
 
 VALUED POLICY. 
 
 1464 
 
 WhatiB. 
 
 of the underwriters. Hdd, they were void 
 under 30 Vict., ch. 23, sec. 7. In, re Arthur 
 Average Astociatioii, Ex parte Hargrave, 10 L. 
 R. Ch., 542. 
 
 H. Policy recited it was on the joint lives 
 of M. and wife. A declaration of trust was 
 put in evidence, by which the trustees declared 
 that in case of the death of either M. or his 
 wife, tliey would hold the money insured for 
 the benefit of the survivor, and for the chil- 
 dren of the insured. HM, the policy was 
 void under 14 (}eo. Ill, ch. 48, for the name 
 of the person interested, or on whose account 
 it was made, was not inserted in it, nor could 
 the declaration of trust be incorporated in the 
 policy to aid the omission. Dovokerv.Gaaada, 
 Life Ing. Go., 24 U. O. Q. B., 591. 
 
 12. Under the statute, 25 Geo. Ill, ch. 44, 
 the name of the person interested in the prop- 
 erty insured must be inserted in the policy. 
 Cox e. Pa/rrff, 1 Term, 464; Camden, v. Sdie, 
 1 H. Bl., 21. 
 
 VALUED POLICY. 
 
 I. "What is. 
 
 II. NOT. 
 
 III. When valuation is coNCLnsrvE. 
 
 IV. BIIAIX BE OPENED. 
 V. CONSTBUCTION. 
 
 II. "What is. 
 
 1 . On 880 kegs manufactured tobacco, worth 
 $9,600. Seld, a valued policy, and insured 
 was entitled to recover the sum named. Har- 
 ris V. Eagle Fire Ins. Co., 5 Johns., 368. 
 
 2. An insurance on life admits of no dis- 
 tinction between partial and total losses. 
 When a loss happetas it binds the insurer to 
 pay the sum insured, according to the terms 
 of the agreement; the interest of the insured 
 in every life policy is valued at the sum in- 
 sured. Bt. John ». Ameriean Mutual Life Ins. 
 Co., 13 N. T., 81; 2 Duer, 419. 
 
 3. On the life of another. The insured ad- 
 vanced the life insured a sum of money exceed- 
 ing the sum insured. It was agreed between 
 them that the net profits arising from an ad- 
 venture, to be prosecuted by latter, should be 
 equally divided. Held, the insured had an in- 
 
 surable interest in the life insured ; that tjie 
 policy, upon the facts stated, was a lawful con- 
 tract; and was an insurance in the nature of 
 profits, and as such was to be considered a 
 valued policy.; that all policies upon lives 
 should be treated as valued policies when the 
 insured proves that the insurance was made 
 in good faith, for his security or indemnity, 
 Miller v. Eagle Life and Health Co., 2 E. D. 
 Smith, 268. 
 
 4. A dwelling house was valued at $1,700 
 and the barn and shed at $350. There was a 
 mortgage on them for $1,650, and the plaintiff 
 purchased the right to redeem, stating the 
 facts to the insurer, who issued a policy for 
 $1,500; $1,250 on the house, and $230 on the 
 barn. The policy stated : "This is not more 
 than three-fourths of the value." The build- 
 ings were worth $2,000, and were damaged 
 $1,850. Held, the insured could recover the 
 sum insured. Bordenv.Hingham Mutual Fire 
 Ins. Co., 18 Pick., 523. 
 
 5. The policy recited: "The amount in- 
 sured is not more than three-fourths of the 
 value of the properly, as appears by the pro- 
 posal of the insured. The application named 
 a sum as the value of the property insured. 
 Held, a valued policy. Nichols v. Fayette Mu- 
 tual Fire Ins. Co., 1 Allen, 63. 
 
 6. Insured $400; value stated by the appli- 
 cant, $800. Stipulated : " The amount insured 
 being not more than three-fuurths of the value 
 of the property, as stated by the applicant, 
 and in case of any other contract of insun-mce 
 upon the property hereby insured, whether 
 such be valid or not as against the parties 
 thereto, this company shall not be held to pay 
 any greater portion of the loss than the amount 
 hereby insured shall bear to the whole amount 
 insured on said property, as herein stated, 
 such amount in all not to exceed three-fourtlis 
 of the actual value at the time of the loss. 
 There was not any other insurance. Held, a 
 valued policy (citing Borden «. Hingham Ins. 
 Co., 18 Pick., 523; Fuller «; Boston Ins. Co., 
 4 Met., 206; Phillips o Merrimack Ins. Co., 10 
 Cusb., 350; Pheenix Ins. Co. e. McLeon, 100 
 Mass., 475.) The covenant in the application, 
 that the estimate value should not be conoln- 
 sive, was not embodied or stated in the policy, 
 therefore it was no part of the contract (citing 
 Stat. 1864, ch. 196; Eastern R. R. Co. e. Relief 
 Ins. Co., 98 Mass., 420). Luee v. Dorebester 
 Mut. Ins. Co., 105 Mass., aa7. 
 
1465 
 
 VALUED POLICY. 
 
 1466 
 
 What is not. 
 
 7. A policy to the amount of $3,000. '* Say 
 on the building and fixed machinery, $1,700;^ 
 on movable machinery therein, $130 ; on stock, 
 raw and wrought, $150," made to a lessee for 
 one year from November 1, 1850. Stipulated: 
 " Said lessee haying paid the rent therefor, 
 $2,171.01, -which interest, diminishing day by 
 day, jn proportion for the ■whole rent for a year, 
 is hereby insured." The policy contained the 
 following printed words : " The said loss or 
 damage to be estimated according to the true 
 and actual cash value of the said property at 
 the time such loss or damage shall happen." 
 Held, the policy was a valued policy, except 
 as to the raw and wronght stock; that the man- 
 uscript stipulation was the agileed basis upon 
 which to ascertain the value of lessee's inter- 
 est Oushman o. NoTthv>e»tem Im. Co., 34 Me., 
 4S7. 
 
 8. Stipulated : " To be on such risks as may 
 be approved, and indorsed on this policy by 
 the company. No risk binding until so in- 
 dorsed." Two indorsements were made, each 
 for a sum specified, one of them on merchan- 
 dise, $2,800, which was lost, but the invoice 
 price, inclusive of charges, amounted to 
 $3,160.40. nod, although the indorsement 
 was made on an open policy, the indorsement 
 itself contained all the ingredients of a valued 
 policy, hence insured was entitled to recov- 
 er the sum of $2,800. ITovies v. Union Ins. 
 Cff.,16La. An., 235. 
 
 9. On goods valued at £1,400. Held, a val- 
 ued policy, although no particulars of the 
 goods were stated. Franco v. Natusch, 6 Tyrw., 
 401. 
 
 IL What is kot. 
 
 1. On goods from MarseUles; "The said 
 goods are valued at eighteen francs; valued 
 at four doll ars and forty-four cents." The first 
 six words of the quotation were printed ; the 
 others were written. Held, the expression 
 "valued at eighteen francs, valued at four 
 dollars and forty-four cents," was an agree- 
 ment that what the insured paid eighteen 
 francs for in France, should be estimated at 
 four dollars and forty-four cents; and that the 
 policy was therefore not a valued policy. 
 Ogden v. Columbian Ins. Co., 10 Johns., 273. 
 
 2. Insurance $800, valued in the applica- 
 tion $1,200. Stipulated: " In no event liable 
 heyond' the sum insured, nor beyond three- 
 
 fourths of' the actual cash value of the prop. 
 eity insured, at the time of loss or damage, 
 nor beyond such sum as will enable the in- 
 sured to replace or restore the property dam- 
 aged." SM, not a valued policy; that the 
 insurers were liable for three-fourths of the 
 actual value. Brown v. Quincy Ins. Co., 105 
 Mass., 396. 
 
 3. The real estate was valued in the appli> 
 cation at $11,180, which was made part of the 
 policy; and it stipulated: "It is also agreed 
 that the aggregate amount insured in this and 
 other companies on the above mentioned prop- 
 erty, shall not exceed two-thirds of the esti- 
 mated cash value." Held, not a valued policy 
 Lycoming Ins. Go. v. Mitchell, 48 Penn. St., 367. 
 
 4. On vessel and freight (vessel valued at 
 $8,000); but the blank for valuing the freight 
 was not filled. The policy was for $10,000— 
 $8,000 on vessel, $2,000 on freight. Held, it 
 was an open policy as to the freight. Siley 
 V. Hartfbrd Ins. Co., 2 Conn., 368. 
 
 5. The application stated, a valuation of the 
 prembes insured. The policy was made sub- 
 ject to it and the by-laws, which provided: 
 " The company will in no case pay more than 
 two-thirds on personal property, and tliree- 
 fourths on the real estate of the actual cash 
 value of the property at risk at the time of 
 the loss. Partial losses will be paid in full, 
 anything in the bylaws to the contrary not- 
 withstanding." Held, error to tell the jury 
 that the sum valued in the application was 
 the true value, unless impeached by the de- 
 fendants, for the loss was to be determined by 
 the value of the property at the time of the 
 fire, indeiiendently of what its value was at 
 the date of the insurance. Huckins v. People's 
 Miaual Fire Ins. Co., 31 N. H., 238. 
 
 6. Stipulated : " In a valued policy an over 
 valuation shall render it absolutely void." 
 the insured was asked to state the value of the 
 premises and answered, $1,500. This state- 
 ment was a part of the policy. The policy 
 provided that insurer should he liable for the 
 actual cash value. Held, not a valued policy; 
 and therefore if the valuation was excessive, 
 the condition did not apply. Cox v. uStna 
 Ins. Co., 29 Ind., 586. 
 
 7. $8,500 on one brick house and two wood- 
 en houses. fl^eW, not a valued policy. WaOace 
 V. Ins. Co., 4 La. (O. 8.), 289. 
 
 8. Plaintiffs exhibited to insurers a valued 
 poli<y on five buildings, insuring them for 
 
 733 
 
1467 
 
 VALUED POLICY. 
 
 1468 
 
 When valuation is eondusive. 
 
 $15,000, and valuing them at $30,000. This 
 policy was then written — "f 15,000 o.i Jive 
 buildings, the sum of $3,000 on each." H^d, 
 the last policy was open. Millaudon, «. Weti- 
 ern, Marine-and Fire In$. Coi, 9 La. (O. S.) 27. 
 
 9. The sum insured is not the -value of the 
 sabject insured, unless the policy so states. 
 If there is no agreement as to value, the pol- 
 icy is an often one. Oox d. Gkarietton Ins. Go., 
 3 Rich., 331. 
 
 10. "On sugar and cotton as might 1« 
 thereafter declared and valued." Seldj a dec- 
 laration necessarily imports two parties,- the 
 person who makes it and the person to whom 
 it is made. Harmon e. Mingston, 8 Camp., 
 150. But if no declaration is made, the policy 
 remains open and the interest of the insured is 
 matter of evidence; if the interest and value 
 were declarated before the loss, the policy 
 becomes valued. Ibid. 
 
 11. "On freight warranted free of capture, 
 seizure, etc." Opposite these words in the mar- 
 gin was written the following, "£1,300." 
 Held, not a valued policy. Wilgon t. NeUon, 
 SB.& S., 354; 10 J«r. (N. 8.), 1044; 33 L. J. 
 Q. B., 220; 13 W. R., 795; 10 L. T. (N. S.), 523. 
 
 1 2. The application stated : " Tannery and 
 fixtures, $1,000; estimated value, exclusive of 
 the land, $2,300. The real property above 
 specified is herein estimated at two-thirds its 
 value. In case of loss by fire, the company 
 shall only be obliged to pay as if they had in- 
 sured two-thirds of the actual value of such 
 property, anything contained in this applica- 
 tion or policy lo the contrary, notwithstand- 
 ing." The application was made part of the 
 policy, and it stipulated : " Said loss or dam- 
 age shall be estimated according to tlie true 
 and actual cash value of the property at the 
 time the same shall happen." Sdd, the two 
 papers were to be read as one contract ; insured 
 was not entitled to recover the actual cash 
 value of the tannery, $1;000, but he was en- 
 titled to two-thirds of that sum, $700. Wil- 
 liamsoti v. Gore District Mutual In*. Co., 26 U. 
 C. Q. B., 145. 
 
 III. WUES VAITTATION IS CONCLTTSIVE. 
 
 1. Nine policies were effected in Philadel- 
 phia on cargo. In seven of them no valuation 
 was fixed; the eighth was valued at forty cents 
 per ruble; the ninth (the policy in suit) was 
 valued at forty-six cents per ruble. The whole 
 734 
 
 value of the cargo proved 95,565 rubles. Hdd, 
 the. value per ruble mentioued in this policy, 
 upon the whole .value of the cargo, was the 
 correct rule by which the insured was entitled 
 to indemnity. PleatatUs v.XarylanAInt. Go., 
 8 Granch, 5J|. 
 
 2. If the fjreight is insured in a valued pol- 
 icyi.the right to indemnity attaches if any 
 part of the cargo is taken on board. Hart e. 
 DeUmare Ins. Go., 2 Wash. C. C, 346. 
 
 3. $5,000 on fre^ht valued, from Kew York 
 to Canton^ and back to the United States. 
 The insured were owners of most of the cargo, 
 some of which was jettistmed, the freight uf 
 which amounted to $4,949.45, and was a sabject 
 of general average. IIeld,a,o. adjustment .of 
 general average does not affect the right of 
 the insured to indemnity under the stipula- 
 tions of the iiolicy; the valuation in thepolicy 
 furnished the rule by which the insured were 
 entitled to indemnity; to adopt any other 
 measure would.be reframing the contract; and, 
 therefore, in determining the claim of insured, 
 the amount by. him contributed in general 
 average was immaterial. Griswold e. Union 
 MiUual Ins. Go., 3 Blatch., 231. 
 
 4. .The proper^ insured was valued in the 
 policy, but the claim was for an average lo.ss. 
 Held, it was unnecessary to produce the in- 
 voice or show the prime cost. Bentaloe d. 
 Pratt, Wall. C. C, 58, 
 
 5. Valued policy on freight Hdd, if there 
 was an inchoate right to some, and the valua- 
 tion is boaafide, it cannot be opened. Daey v. 
 HalUU, 3 Gaines, 16. 
 
 6. Printed blank policy on cargo was writ- 
 ten: "On profits;" but the printed words, 
 " on all goods and merchandises laden or to be 
 laden," were not erased, and following them 
 the blank was filled up " valued at $2,500." 
 Held, parol evidence could not be received to 
 show that vprofits were valued at $2,500; that 
 it was an insurance on profits, and the goods 
 from which the profits were expected were 
 valued at $2,500. Mvmford v. HaUett, 1 Johns., 
 434. 
 
 7. The insurer contracts in a valued policy 
 to pay the sum valued if the gnbjcct is lost, 
 and the valuation is conclusive unless there 
 be fraud or imposition in fixing the value. 
 Whitnej/ v. American Ins. Go., 3 Cow., 210. 
 
 8. Action on a valued policy. Held, it was 
 only necessary for insured to prove a substantial 
 interest in a subject corresponding to, and sat- 
 
1469 
 
 VALUED POLICY. 
 
 1470 
 
 When valuation is condvisrre. 
 
 isfying the description mentioned in the pol- 
 icy (citing 2 Phil, on Ins., 743); that it was not 
 necessary for insured to prove that the whole 
 property was shipped, or that he was the own- 
 er of the wholel Atlantic In». Go. e. Lunar. 1 
 Sandf. C3i., 91. But the insorers may show 
 that either by mistake or design, the whole of 
 the property insured was not put on board, or 
 if it was, that the claimant had an interest in 
 only a part of it Ibid. 
 
 9. On cargo, laden or to be laden, out and 
 back to a peat of discharge in the United 
 States, being vpon 1>{7 whole and 48 half 
 pipes of wine, out and return home, valued at 
 $14,000. The wine was delivered but not atdd, 
 and the consignee advanced f7,000, and prom- 
 ised to answer drafts to fiie extent of $3,000 
 more, the wine to be sold and Uie proceeds re- 
 mitted. But it did not bring enough to reim- 
 burse the consignee by $4,680.26, for which he 
 drew on the insured. The supercargo drew"for 
 $1,631 instead of $3,000, which, with the $7,000, 
 he invested in cargo for the return voyage. 
 Hdd, the return cargo was by the policy val- 
 ued at $14,000, and the insured was entitled 
 to recover the whole amoimt with interest 
 Whitney v. American Ins. Co., 3 Cow., 210; and 
 afBrmed Court of Errors, 5 id^ 713. 
 
 10. Valued policy. Held, conclusive, un- 
 less fraudulent representations were made to 
 proctire it, and a gross overvaluation is pre- 
 sumptive evidence of fraud. Sturm v. Atkmtic 
 Mat. Ins. Co., 6 J. & Sp. (N. T.), 281. But the 
 burden was upon insurer to establish the 
 fraud. The production of the policy, without 
 any other evidence, is sufficient to make out 
 the plaintiflf s case. Ibid. 
 
 11. "On cargo or freight or both or either, 
 to the amount insured, valued at the sum 
 insured." Held, an insurance of freight or 
 cargo in the event insured have but one of 
 those descriptions of property at risk ; and if 
 he have both, it includes both in proportion 
 as his interests are in the respective subjects. 
 Paris e. Ifeteburyport Marine Ins. Co., 3 Mass., 
 476. 
 
 12. The valuation mentioned in the policy 
 is the measure of the insurer's liability, and 
 a valuation fixed by the prize court does 
 not affect it loveringv. Mereantile Ins. Co., 
 12 Pick., 848. 
 
 13. A valuation fairly made by the parties, 
 with a full knowledge of the material facts, is 
 binding upon the insurer; but if it was a 
 
 mere cover for a wager, it should be set aside 
 and the insured should recover according to 
 his actual interest Clark v. Ocean Ins. Co., 16 
 Pick., 289. 
 
 14. Valuation of the premises insured, de- 
 liberately made by mutual agreement between 
 the parties to the contract, in the absence of 
 f^nd, is the best evidence of their value. 
 FulUr «. Boston Mut. Ins. Co., 4 Met, 206. 
 
 15. The application, made part of the con- 
 tract, valued the buildings at $4,000, and the 
 policy insured, $3,500, l>eing not more than 
 three-fourths of the actual valuation. Held, 
 evidence to show that the buildings were 
 worth more than $4,000 could not be re- 
 oeivfed. Holmes v. Charleston Mutual Fire 
 Ins. Co., 10 Met, 211. 
 
 1 6. The valuation in the policy mentioned, 
 although it exceeds the value of the goods at 
 tlie port of destination, is the amount for 
 which the insurer must answer. Forbes d. 
 Manrtfaeturers Ins. Co., 1 Gray, 371. 
 
 1 7. " Valued policy on outfits, with liberty 
 to touch at all ports and places for refresh- 
 ments, and to sell her catchings, or ship tliem 
 home at the risk of insured. One-fourth of 
 the catchings shall replace the outfits con- 
 sumed, but catchings shipped home from tlie 
 Cape de Verd islands, or this side thereof, 
 shall be at risk of insured." She was at 
 Honolola with $46,000 whale oil, and $11,000 
 Whale bone. The whale bone was transhipped 
 to another vessel, carried to Kew York, and 
 subsequently the ship with all the whale 
 oil was lost. Insurers paid a total loss, and 
 brought this action to recover for a pro- 
 portion of the whale bone. Held, the catch- 
 ings shipped home and sold being severed 
 from the voyage, were at the sole risk of the 
 owners, and insorers ceased to have any inter- 
 est in them ; the object of the last clause was 
 to provide, that exercising the liber^ to sell 
 or tranship the catchings should not affect 
 the value so long as one-fourth of the entire 
 catchings in all stages of the voyage remained 
 on board, for then the whole interest was kept 
 full; nor could the catchings which were 
 transhipped be regarded as salvage, for " sal- 
 vage is that part or remnant of the subject in- 
 sured which survives a total loss." Mutual 
 Marine Int. Co. v. Munro, 7 Gray, 246. 
 
 18. On freight, valued at $35,000. Boston 
 to San Fnmcisco, and thence to a port or ports 
 in the East Indies, and to a port of dischwge 
 
 7?5 
 
1471 
 
 VALUED POLICY. 
 
 1472 
 
 When valuation is conclusiye. 
 
 in the United States, with liberty to return 
 with a cargo of guano from the Chincha 
 Islands. She delivered her cargo at San 
 Francisco, and made freight $33,338.30. On 
 her home voyage from Chincha Islands she 
 put into Callao, which she was obliged to 
 do to obtain her clearance. She was tlien 
 in a very leaky condition, and the cargo was 
 transhipped for the port of delivery at a freight 
 of $18,000, equal to that insured would have 
 received had she carried it to destination. 
 Held, it could not have been the intention of 
 the parties that the freight earned on the first 
 voyage should be deducted from the valuation, 
 for the voyages contemplated were to ports a 
 long distance from each other, on each of 
 which the amount of freight pending might 
 have been very nearly equal to the valuation, 
 also tlie aggregate risk during all the success- 
 ive voyages exceeded it largely; and in the 
 absence of explicit provision to the contrary, 
 the parties intended to protect the freight 
 pending during each successive voyage speci- 
 fied, not on the aggregate freight of all the 
 voyages (citing 3 Phil, on Ins., sec. 1308). 
 Therefbre the freight earned to San Francisco 
 must not be deducted from the sum insured. 
 Timing v. Washington In». Co., 10 Gray, 448. 
 
 1 9. Insured oflered neither evidence of title 
 nor of value, but the application upon which 
 the policy was issued stated that the insured 
 were mortgagees in possession, and the policies 
 were valued. Held, prima facie case. Niehoh 
 D. Fayette Mvtual Fire Int. Co., 1 Allen, 63. 
 
 20. On ship, $7,600, valued at $65,000, and 
 on freight, $3,500, valued at $23,500. The 
 valuation of ship was excessive, $12,500, the 
 freight and outfits were overvalued $10,300. 
 Sbe was totally destroyed at sea. The jury 
 found specially that the overvaluations were 
 not fraudulent. Held, insured was entitled to 
 judgment for the sum insured. Phoenix Ins. 
 Co. V. MeLoon, 100 Mass.; 475. 
 
 21. Insurer cannot introduce evidence to 
 show that the real valuation was less than the 
 sum agreed in the policy, except for the pur- 
 pose of estabiishiug fraud. Gushman v. North- 
 westeiTi Ins. Co., 34 Me., 487. 
 
 82. Ship owner was also owner of two- 
 thirds ot' the cargo, and insured freight for 
 17,500, valued. Insurer of freight accepted an 
 abandonment, but claimed credit for the 
 freight upon cargo not owned by insured. 
 Held, the valuation in the policy was con- 
 786 
 
 elusive. Dumas t. United States Ins. Co., 13 
 S & R., 437. 
 
 23. Where the sum valued in the policy 
 slightly exceeds the value of the thing in- 
 sured and the freight added to the point of 
 destination, the valuation will not be dis- 
 turbed. Pritehet it. Insurance Go. of North 
 America, 8 Yeates, 458. 
 
 24. Stipulated: "The insured shall not be 
 entitled to demand and recover on this policy 
 any greater proportion of the loss than the 
 amount hereby insured shall bear to the whole 
 amount insured on said property." Also 
 stipulated: "The aggregate amount insured 
 in this and other companies shall not exceed 
 two-thirds of the estimated cash value." In- 
 sured made insurance exceeding two-thirds 
 of the estimated cash value, of which this in- 
 surer had notice. Hdd, in the absence of 
 proof showing that the value of the property 
 insured was greater than the estimate men- 
 tioned in this policy, the damages must be es- 
 timated against this insurer, in proportion as 
 the sum hereby insured bears to the agreed 
 value. Lycoming Ins. Co. «. Blodcbouier, 26 
 Penn. St., 199. 
 
 25. Insurers' by-law prohibited instu-ance 
 exceeding two-thirds the value of the prop- 
 erty. Held, if insurers deliberately made a 
 valuation of the property, they were bound by 
 it, unless insured fraudulently or coUusively 
 assisted in fixing it; and though the overval- 
 uation be very large, insured cannot be aflfect- 
 ed by it, if insurer's agent joined with the in- 
 sured in making the estimate, unless fraud or 
 collusion was established between the agent 
 and the insured. Gunberland VaUey Mutual 
 Protection Co. v. Schell, 39 Penn. St, 31. 
 
 26. The directors were empowered by char- 
 ter to determine the sum to be insured, which 
 was not to exceed three-fourths of the value; 
 they were also empowered to determine the 
 value of the premises. Held, the company were 
 estopped to object that the sum insured ex- 
 ceeded the limit mentioned in the policy, un- 
 less fraud or misrepresentation was resorted 
 to by the insured. Hoxsie v. Providence Mut. 
 Ins. Co., 6 R. I., 517. 
 
 27. A life insurance policy is not, in any 
 proper sense, a contract of indemnity. Mom- 
 ry V. Home Life Ins. Co., 9 R. I., 340. 
 
 28. On freight from Baltimore to Aux 
 Cayes, with a privilege of one other port of 
 San Domingo to Baltimore, valued $1,000. 
 
1473 
 
 VALUED POLICY. 
 
 1474 
 
 When valuation is concLusive. 
 
 She earned freight, $500 upon the out, and 
 was lost on the home voyage. Held, insured 
 was entitled to recover the sum insured. The 
 valuation named in the policy ia always bind- 
 ing upon the parties unless it is fraudulent 
 Patap*co Ins. Go. o. Briseoe, 7 G. & J., 293. 
 
 29. .On freight, to be earned, valued at 
 $2,000. H^, conclusive as to the amount of 
 damage. Cole t>. Louisiana Ins. Co., 14 Martin 
 (La.), 165. 
 
 30. The insurer cannot object to the valua- 
 tion to which he has agreed in a valued policy 
 if it was fixed in good faith. Brook «. Loui- 
 siana State In». Co., 16 Martin (La.), 640; 6. c, 
 id., 681 ; Akin t>. Mississippi Marine and Fire 
 Ins. Co., id., 661. 
 
 31. The answer did not set up a want of in- 
 surable interest Seld, in life insurance the 
 amount of the indemnity is like a valued pol- 
 icy — agreed upon beforehand; and insurer, 
 under the rules of pleading in Louisiana, can- 
 not contest this question without putting it ex- 
 pressly in issue, for the law of Louisiana pre- 
 sumes eveiy contract which does not appear 
 illegal or immoral on its face to be valid, and 
 founded upon sufficient consideration ; there- 
 fore, if one party would put the other upon 
 proof of the sufficiency of the cause, it must 
 be done by special pleadings (citing Herman 
 V. Pfister, 2 La. (O. S.), 455). Kennedy o. JTeto 
 Tork Life Ins. Co., 10 La An., 809. 
 
 32. Valued policy. Held, insured was not 
 bound to give evidence of her interest in the 
 subject insured, where the plea was nothing 
 but the general issue. Katheman e. General 
 Mvt. Ins. Co., 12 La. An., 35. 
 
 33. *• On goods and merchandise, laden or 
 to be laden on board the good steamer Shoot- 
 ing Star, valued $8,000." There was nothing 
 but a general denial pleaded. Held, the bill 
 of lading dated two days subsequent to the 
 policy, in the absence of some allegation of 
 deficiency, error or fraud, was sufficient proof; 
 that to put insured to proof of all the goods 
 at risk, insurer was boimd to plead specially. 
 Hinek «. Home Ins. Co-, 19 La. An., 527. 
 
 34. Valued policy. The loss was toteL 
 Held, in the absence of fraud, the agreement 
 of the parties as to value was the best evi- 
 dence of valae, notwithstanding the opinion 
 of witnesses to the contrary. Lodeaood «. .9ai»- 
 gamo Ins. Co., 46 Mo., 71. 
 
 35. On steamboat, against fire only. She 
 came into colUsion with another vessel, a Are 
 
 47 
 
 ensued, doing great injury, and she sunk in 
 the river. She was subsequently raised and 
 repaired. Insured claimed for a total loss, 
 bat insurers i-efused to pay anything, on the 
 ground that the loss was not within the policy. 
 No abandonment was made. Held, in deter- 
 mining whether there had been a total loss, 
 the jury must take the valuation of the policy 
 as the basis of their estimates ; that the dam- 
 age by collision should be regarded as so 
 much saved from the wreck ; and if the dam- 
 age by fire, after allowing for the damage by 
 collision, exceeded the value of the entire 
 boat when repaired, the insured was entitled 
 to recover for a total loss. Sherlock «. Qlobe 
 Ins. Co., 1 Cin. Sup. Ct, 193. 
 
 36. Ship and cargo insured for a sum val- 
 ued. Held (reversing interlocutors of the 
 court of session in Scotland), that the insured 
 must recover the whole sum insured. Mae- 
 :Nair o. CouUer, 4 Bro. P. C, 450. 
 
 37. Complainants had instu^d two vessels 
 with their cargoes, and these having been cap- 
 tured, actions at law were commenced upon the 
 policies. This bill was brought for discovery 
 and an injunction. It appeared that the poli- 
 cies were valued ; but the only allegation in the 
 bill, as to fl-aud, was that the cwgoes had been 
 sold in South America before the capture. 
 The defendants in their answers swore that 
 the value stated in the policy was the same 
 that was stated in the invoices. Held, the 
 sums named in the policies were conclusive 
 between the parties unless fraud were alleged, 
 and as to fraud, there was no sufficient allega- 
 tion in the bill. Avbert v. J^aco6s,Wightwick,l 18. 
 
 38. On goods valued at £19,000. Several 
 persons had contributed different assortments 
 to the whole cargo, the insured being inter- 
 ested four-ninths of the whole. Some of the 
 persons interested were alien enemies. Held, 
 the insured could recover the sum valued, not- 
 withstanding alien enemies were interested; 
 for the court must take the sum insured as the 
 value of the plaintiff's interest, and no proof 
 was necessary to establish it Feise o. Aguilar, 
 3 Taunt., 506. 
 
 39. She was valued in this policy at £3,200, 
 and insured for £2,400. There were three 
 other policies upon her, in two of which she 
 was valued at £3,000, and in the other at £5,- 
 000. The evidence as to her value conflicted. 
 Under the other policies insured had been 
 paid several sums amounting to £3,126 13s. 6d. 
 
 737 
 
1475 
 
 VALUED POLICY. 
 
 1476 
 
 When valuation is condnsiTe. 
 
 Held, as between insurer and insnred, the val- 
 uation was conclusive; that the contract 
 being one of indemnity only, the recovery 
 here must be limited to the difference between 
 the last sum and the valuation mentioned in 
 this policy. Bruce v. J<mes, 1 H. & C, 769 ; 
 32 L. J. Ex., 132; 9 Jur. (N. 8.), 628; 11 W. 
 R.,371; 7L. T.(N. S.),748. 
 
 40. " On any kind of goods valued, being 
 profits expected to arise on the cargo in the 
 event of her safe arrival at Quebec, and in case 
 of loss, insurers agree to pay the same without 
 any other voucher than the policy." Hdd, 19 
 Geo. II, ch. 37, did not make it Void. Grant v. 
 Parkinson, 3 Doug., 16; 6 Term, 483 n; 3 B. 
 & P., 85 n. 
 
 41. She was valued in the policy at £6,000, 
 and insured for £600. By another policy she 
 was valued at £8,000, and insured for £6,000, 
 which last sum had been paid. The defense 
 was that the insured had been paid by the last 
 policy the sum valued in the first; but the in- 
 sured gave evidence to show that she was 
 worth above £8,000. Held, the valuation in 
 the policy upon which the suit was brought 
 was conclusive as between the insured and 
 the insurers, who subscribed the policy with- 
 out taking into account transactions between 
 the insured and third persons. Bougfield v. 
 Barnes, 4 Camp., 228. 
 
 42. " On ship and cargo valued at £6,600, 
 from Liverpool to the coast of Africa, during 
 her stay there, and thence to her ports of dis- 
 charge, sale, and final discharge in the West 
 Indies and America, and till moored twenty- 
 four hours in safety." She arrived on the coast 
 of Africa, and took a cargo of slaves ; while 
 proceeding to Bemarara, in calm weather, 
 there was a violent concussion which resem- 
 bled an earthquake, in which she was su 
 greatly damaged, that with the greatest diffi- 
 culty she was kept afloat, by pumping, till she 
 reached Demarara, almost a wreck. There 
 she was lashed alongside of a hulk to prevent 
 submerging ; an attempt was made a few days 
 after to get her to the shore, and though the dis- 
 tance was only fifty yards, she sunk. She was 
 condemned and sold at Demarara for £388, and 
 the master was obliged to sell her cargo of 
 slaves there at a loss. Insnred gave notice of 
 abandonment. Held, insurers were bound for 
 the sum valued in the policy. Shawev.Fel- 
 ton, 2 East, 109. 
 
 43. On ship for a term, valued at £8,000. 
 788 
 
 At the time the policy was made she was in a 
 damaged condition, and the expense of repairs 
 would have exceeded her value, but neither 
 party knew of the disaster. EM, the valua- 
 tion was conclusive between the parties; that 
 the policy attached notwithstanding the prior 
 injury. Barker v. Janson, 3 L. R. C. P., 308; 
 37 L. J. 0. P., 105; 17 L. T. (N. S.), 473; 16 
 W. R., 399. 
 
 44. £6,000 on ship H., valued at £6,000. She 
 was sunk by collision, and insurers paid a 
 total loss. Insured afterwards recovered 
 against the owners of the other vessel £.5,000. 
 The real value of the ship H. was £9,000 ; there 
 was no other insurance. Held, the valuation 
 named in the policy, as between insurers 
 and insured, was conclusive, hence the amount 
 recovered from the wrongdoer was in the nature 
 of salvage, and belonged wholly to insurers. 
 Nortli of England Steamship Ins. Ais'n v. Ann- 
 strong, 5 L. B. Q. B., 244; 39 L. J. Q. B., 81; 
 21 L. T. N. 8., 822; 18 W. R., 530. 
 
 45. At and from Calcutta to London, £10,000, 
 valued at £20,000. On her outward voyage 
 she sustained damage, but reached Calcutta 
 October 28th. She discharged cargo and was 
 taken to dry dock for repairs, and while they 
 were being made, she was destroyed by fire. 
 The same insurers were liable for the partial 
 loss that had occurred on the outward voyage. 
 Seld, insurers were liable for the sum insured, 
 without considering the fact that she bad been 
 greatly reduced in value by perils of the sea ; 
 that to hold otherwise would be to open the 
 valuation mentioned in the policy. Lidgett v. 
 Seeretan, 6 L. R C. P., 616; s. c, 40 L. J. C. 
 P., 257; 24 L. T. (N. S.), 942; 19 W. R., 1088. 
 
 46. A., the owner of a cargo of wheat, in- 
 sured it for £7,000 valued. The current mar- 
 ket price depreciated, and he sold it for £5,700, 
 including freight and insurance, payment to 
 be made in cash upon delivery of bills of 
 lading and policies of insurance, effected with 
 approved underwriters. A loss occurred after 
 the sale. Seld, the purchaser was entitled to 
 the amount insured by the policies. Balii v. 
 UniverscU Marine Ins. Go., 4 De G-., F. & J^ 1 ; 
 31 L. J. Ch., 318; 8 Jur. (N. 8.), 495; 10 W. R, 
 278; 6 L. T. (N. S.), 34. 
 
 47. Valued policy. Hdd, insurers were 
 liable for the sum insured, though it was far 
 above the true valuev unless the value agreed 
 was procured by fraud. Wilson v. Wordie, 
 Faculty Dec. 1781 to 1787, p. 207. 
 
1477 
 
 VALUED POLICY. 
 
 1478- 
 
 When the yahiatkm shall be opened. 
 
 48. On ship valued. Insurers defended on 
 the ground that she was not seaworthy, and, 
 failing in that attempt, they then tendered evi- 
 dence to show that she was out of repair and 
 overvalued. Heid, inadmissible. Young e. 
 Ifeat, Faculty Dec., 1796 to 1801, p. 140. 
 
 49. Valued policy on freight She was 
 wrecked when a part of the cargo was on 
 boanl. SMy insurers were liable for the sum 
 insured. Skand c. Baib, Faculty Dec., 1801 to 
 1S07, p. 433. 
 
 50. On ship valued. At the time the policy 
 was made, she was in a very disabled condi- 
 tion, but neither party had knowledge of it 
 Sdd, It was not competent to raise any ques- 
 tion as to the value, unless insurers alleged 
 fraud. Smith o. Flanming, 13 C C. S., 138; 
 23 Scot Jut., 7. 
 
 IV. When thb tajluation shaix be 
 
 OPENED. 
 
 1. $13,500 on 135,000 lbs. coSee at twenty- 
 two cents per pound. $13,000 insured in the 
 Phil. Ins. Co., to be deducted from the whole 
 value. Stipulated: "If insured shall have 
 made prior insurance upon the cargo, this in- 
 surer shall be answerable only for so much as 
 the prior insurance may be deficient in frilly 
 covering the coSec, and this policy, so far as 
 the property has been previously insured, shall 
 be considered as null and void." Hdd, the 
 policy insured only the property which was 
 not insured by any prior insurances; the 
 prior policy was to be treated as an open pol- 
 icy, covering so much of the coffee as $13,000 
 would purchase at prime cost, and this policy 
 then attached upon the balance at a valuation 
 of twenty-two cents per pound. JTKim c. 
 Piasnix Im. Co^ 3 Wash. C. C, 89. 
 
 2. Two policies on flie same ship, the first 
 $4,000, valuing her at that sum ; the second for 
 $4,000, valuing her at $6,000. Held, the last 
 insurer was liable for so much of the agreed 
 value as was not covered by the first policy. 
 Murray r. Inturanu Co. of Fenn»$Uatua, 2 
 Wash. C. C, 186. 
 
 3. The jury found specially that the vessel 
 was worth 1 15,000. She was valued in the 
 policy at $12,000; but it provided that if 
 any prior insurance on the same property 
 h3s been made, the insurers in this shall be 
 answerable only for so much as the prior in- 
 surance may be deficient in fully covering the 
 
 premises insured. A bottomry bond was exe- 
 cuted upon her for $13,000. Held, the policy 
 must be opened, and the amount of the bot- 
 tomry bond deducted from the real value. 
 Watson c. Ins. Co. of North America, 3 Wash. 
 C.C.,1. 
 
 4. Under a valued policy, "on goods and 
 freight," if by mistake or design, a part only 
 of the goods intended to be Included in the 
 valuation should be put at risk, the insured 
 can recover, in case of a total loss, such a pro- 
 jKirtion only of the valuation as the goods and 
 freight at risk bore to the whole subject of 
 valuation. Wolcott ». EagU Ins. Go., 4 Pick., 
 439. 
 
 5. The insured can have but one satisfac- 
 tion for the loss; and if he is insured by a 
 valu^ policy and an open policy, and he has 
 elected to claim upon the open policy, and 
 has abandoned to the insurer upon that, the 
 proper proportion in the whole, he cannot re- 
 cover under the valued policy any more than 
 will make up and satisfy his whole loss. 
 Craiff o. Murgatroyd, 4 Yeates, 161. 
 
 6. Valued policy. Stipulated : " In case of 
 prior insurance, this company is answerable 
 only for so much as the amount of such prior 
 insurance may be deficient toward fully cov- 
 ering the properly at risk." Held, in order to 
 give effect to this provision, it became neces- 
 sary to value the vessel at the time and place 
 of the loss. Stephenson v. Piseataqua JVre and 
 Marine Ins. Co., 54 Me, 55. 
 
 7. Action on a valued policy to recover for 
 partial loss on cargo. HHd, the difference 
 between the agreed value and the damaged 
 \'alue was the measure of damage, adding the 
 necessary costs and expenses for ascertaining 
 it Natehee Int. Co. v. Buekner, 5 Miss., 63; 
 Stanton «. Natchez Ins. Co., 6 id., 744. 
 
 8. On freight, valued at £10,000, from A. to 
 B., thence to O. Stipulated: "If the ship 
 shall be lost at B., settlement shall be made as 
 if she had on board an entire freight to C. 
 She earned £3,500 freight to B., and was lost. 
 Seid, the insurer was entitled to have credit 
 for the £2,500 freight earned. Sobertson v. 
 Majoribatiks, 2 Stark., 573. 
 
 9. " On freight valued." She was lost while 
 taking in her cargo, but there was not then a 
 full cargo provided, nor was there any agree- 
 ment to supply one. Held, the loss must be 
 limited to the freight lost on the goods laden. 
 Patrick v. Barnes, 3 Camp., 441. 
 
 789 
 
1479 
 
 VENUE — VERDICT. 
 
 1480 
 
 Miscellaneous. 
 
 10. On goods valued at and from the coast 
 of Africa. At the time of the loss a portion 
 only of them were on board, which were 
 totally lost. Held, the valuation must opened. 
 Biehman v. Garstaira, 5 B. & Ad., 651 ; 3 L. J. 
 (!<{. 8.), K. B., 28; 2 N. ifc M., 5G3. 
 
 11. Freight valued at £6,500, from any ports 
 in Hayti to Liverpool. She sailed from 
 Liverpool to Hayti on a voyage of barter; 
 exchanged a part of her outward cargo at 
 Jaqnemel for fifty-five bales of cotton, and 
 was proceeding to make similar barter at 
 Aux Cayes, when she was lost. The balance of 
 the outward cargo was saved in a damaged 
 condition, exchanged for 250 tons of coffee 
 and 100 tons logwood; the freight of trhich 
 would have been larger than the sum insured. 
 Held, as there was no contract for freight, 
 insured was limited to the actual freight of 
 fifty-five bales of cotton; that the policy being 
 valued as to all the goods intended to be 
 loaded, if a part only intended to be loaded 
 was lost, the valuation must be opened. Forbes 
 V. Aspinall, 13 East, 323. 
 
 18. The goods insured were valued in the 
 policy at £600, "without proof of interest." 
 But the court ordered the insured to discover 
 what goods he had put on board, and referred 
 the case to a master to examine the value of 
 the goods saved, and to deduct that from the 
 sum mentioned in the policy. Le Pypre v. 
 J'a»T,2.Vern., 716. 
 
 13. Time policy on ship valued at £2,000, 
 and on goods valued at £8,000, on a barter 
 voyage from Livopool to the coast of Africa. 
 Stipulated: " Outward cargo shall be consid- 
 ered homeward interest, twenfy-four hours after 
 her arrival, at the first port or place of trade, 
 with liberty to extend the vajuatioa of the 
 homeward cargo.". By subsequent memoran- 
 dum, it was agreed to continue the risk at the 
 same rate of premium, lutil her arrival back, 
 on the same conditions. She arrived at Kin- 
 sembo, landed a portion of her cargo, and 
 sailed thence, and was totally lest with tbe re- 
 mainder, not having taken any other goods for 
 tho^ delivered. Held, insurers were liable 
 only for that portion of the cargo which was 
 on board at the time of the loss. ToHn v. 
 Hofffuri, 17 C. B. (K. 8.), 528 ; 8. c, 34 L. J. C. 
 P., 37; 10 Jui. (N. S.), 850; 12 W. R., 1062; 10 
 L. T. (N. 8.), 817; affirming s. o.^ 13 C. B. (N. 8.) 
 791; 9 Jut. (N.B.), 992; 32 L. J. C. P., 134; 11 
 W.B.,48«; 8 L. T. (N. 8.), 31. 
 740 
 
 14. "£1,000 on freight valued at £2,000." 
 She took 360 coolies and 1,200 bags of rice 
 for the Mauritius. Nothing was said about 
 an intention to insure the freight of the rice 
 only. According to the course of business, it 
 was usual, when insuring the transportation 
 of coolies, to describe it as passage money, or 
 by some term distinguishing it from freight 
 of merchandise. She was wrecked; all of 
 the rice was lost; but all of the coolies, ex- 
 cept six, were saved, carried to the Mauritius, 
 and the passage money paid. Held, the t^rm 
 freight did not include passage money; hence 
 the freight of the rice only was covered by the 
 policy ; that the sum valued on freight refers 
 to the whole cargo, unless the parties under- 
 stood the contrary, of which there was no 
 evidence in the case ; and as there was not a 
 full cargo of freight, the valuation must be 
 opened, the policy treated as an open policy 
 on freight proper; hence insurer was liable 
 for only one-half of the actual loss on it. 
 Denoon c. Home and Colonial Ass. Co., 7 L. R. 
 0. P., 341 ; 41 L. J. C. P., 163 ; 26 L. T. (N. 8.), 
 628. 
 
 Y. CoNSTKUCTrON. 
 
 On one-fourth of the ship, valued at the 
 sum insured, $5,500. Held, this valuation 
 applied to the interest of the insured, and not 
 the whole value of the ship. Post v. Phanix 
 Ins. Co., 10 Johns., 80. 
 
 VENUE. 
 
 XSee CHAicaB of Yxinm.) 
 
 VERDICT. 
 
 I. What is a sufficient FnTomo. 
 II. When the appellate ooubt will 
 
 TBEAT IT AS AMENDED. 
 
 III. What is an invalid vekdiot. 
 
 IV. Affidavits of jubors will not be res- 
 
 CErVED TO IMFEACR. 
 
 V. What is cured by the verdict. 
 
 I. "What is a sufficient findiitg. 
 The verdict fotmd by the jury was as fol- 
 
1481 
 
 VERDICT. 
 
 1482 
 
 Miscellaneous. 
 
 , lows : " We the jury find for the plaintiff and 
 assess the damages at $6,000, 'with interest 
 from the commencement of this suit at legal 
 rate." Held, a good verdict. SchuUz v. Pacific 
 Ins. Go., U Fla., 73. 
 
 II. When the appellate court will 
 
 TEEAT IT AS AMENDED. 
 
 Theverdictof the jury was informal. Held, 
 the court below ought to have reduced it to 
 form, and that under the statute of amendments, 
 this court would treat it as amended and re- 
 duced to form. Hartford fire Ins. Co. v. Van- 
 duBor, 49 lU., 489. 
 
 III. What is an invalid verdict. 
 
 By agreement of counsel the jurors were to 
 seal their yerdict and deliver it to the officer. 
 All signed a paper, professedly a verdict for de- 
 fendant ; but two of them, on the coming in of 
 the court next morning, said they had signed 
 it under protest; one of them consented to the 
 verdict, but the other persisted in his refusal 
 to affirm it HeUL, the court would not give 
 its consent to sustain a judgment rendered 
 upon the verdict uStna Ins. Co. v. Chrvihe,^ 
 Minn., 82. 
 
 lY. Aefidavits of jurors will not 
 
 BE RECEIVED TO IMPEACH. 
 
 A deputy sheriflF was sworn to take charge 
 of the jury, but the sheriflF himself took charge 
 of them. Several jurors made affidavit that 
 the sheriflT told them that the judge said if 
 the jury did not agree in five minutes, they 
 would have to remain in the jury room all 
 night, and if the sheriff had not so stated, they 
 would not have consented to find the defend, 
 ant guilty. Held, the affidavits of the jurors 
 were not admissible (citing Turner v. Tuo- 
 lumne County Water Co., 25 Cal., 397; Boyee 
 o. Calif amia Stage Co., 25 id., 460). The PeopU 
 V. Hughes, 29 id., 257 
 
 V. What is cubed by verdict. 
 
 1. The declaration alleged that the plaint- 
 iflTs store was consumed; but there was no 
 averment of ownership. Held, good after ver- 
 diet Lant v. Maine Mutual Fire Ins. Co., 12 
 Me., 44. 
 
 2. Any defects in a declaration which 
 would have required a special demurrer to 
 reach them are cured by the verdict Insur- 
 ance Co. V. Seitg, 4 W. & S., 273. 
 
 3. Omissions in the declaration which do 
 not amount to substantial defects are cured by 
 the verdict. American Ins. Co. e. Franeia, 9 
 Penn. St, 390. 
 
 4. The policy provided that the boat must 
 be completely provided with master and 
 crew. There was no averment in the declara- 
 tion that she was so provided. Held, cured 
 by the verdict. Lexington Ins. Co. «. Paver, 
 16 Ohio, 324. 
 
 6. The petition alleged, defendant insured 
 plaiutiff to the amount of $1,200 on certain 
 property described; that it was totally de- 
 stroyed by fire. Held, good after verdict, al- 
 though it did not allege the valuo of the 
 property insured, or that its desti'uction was 
 any damage to the plaintiff. Jones «. St. 
 Joseph Fire and Marine Ins. Co., 55 Mo., 342. 
 
 6. The interest was averred in A. B. and C. ~ 
 D. (stating their names), and certain persons 
 trading under the firm of Messrs. W. and J. 
 Bell & Co., and that the policy was effected 
 for their use. Held, after verdict, the declara- 
 tion was good, for it was sufficient to prove 
 there was such a firm without showing the 
 names of the persons who composed it. 
 Wright o. Welbie, 1 Chitty, 49. 
 
 7. The declaration averred that the plaint- 
 iffs, M. and another, caused the policy to be 
 effected, containing therein tliat J. & Co. did 
 make insurance. The interest was averred in 
 F., and the promise to the plaintiffi. Held, it 
 was good after verdict Mellish «. Bell, 15 
 East, 4. 
 
 8. Warranted free from seizure in ship's 
 port of discharge. Insured declared for a loss 
 by hostile seizure, but did not negative that 
 it was in ship's port of discharge. Held, no 
 cause to arrest judgment Rucker v. Qreen, 15 
 East 288. 
 
 9. The declaration stated that in conse- 
 quence of the perils insured against, she w.ss 
 obliged to abandon the immediate prosecution 
 of the voyage, and for her preservation^ obliged 
 to go to Gambia; that she was wholly unfit to 
 prosecute her voyage thence without expensive 
 repairs, which could not be made at Gambia; 
 it became expedient to sell her, aod that she 
 was thereby wholly lost Held, it was im- 
 proper to introduce a long statement of facts, 
 
 741 
 
1483 
 
 VIOLATION OF LAW— VOID IN PART, VALID IN PART. 
 
 1484 
 
 MuceUaneous. 
 
 yet the declaration was good after verdict. 
 ParjUt v. flumpsmi, 13 Mee. & W., 392; 14 L. 
 J. Ex., 78. 
 
 VIOLATION OF LAW, 
 
 (See Death.) 
 
 VOID IN PART, VALID IN PAKT, 
 
 1. $900 on building and |500 on furniture, 
 liquors and fruit. A condition annexed to the 
 policy required the insured to mention all 
 buildings within ten rods of the building in- 
 sured, which was not done, and the court non- 
 suited the plaintiff. Held, error, for the con- 
 dition did not apply to the insurance on furni- 
 ture, liquors and fruit (citing Trench ». Che- 
 nango Mut. Ins. Co., 7 Hill, 123.) BurrUl v. 
 Chenango Mut. Ins. Co., Edm. S. C. (N. T.), 283. 
 
 2. Several properties were separately in- 
 sured in one policy, which prohibited aliena- 
 tion. Meld, the policy was void only as to the 
 property alienated, but valid as to that which 
 was not sold ; and that a levy of execution on 
 realty was not an alienation, so long as the 
 right of redemption remained in the insured. 
 Clark «. New England Fire Ins. Co., 6 Cush., 
 342. 
 
 3. Policy on goods. Stipulated : " The ap- 
 plication shall contain a full and true exposi- 
 tion of the circumstances in regard to the 
 condition, situation and value of the property 
 insured." In it insured was asked to state the 
 purposes for which the building was used, and 
 how many tenants. He replied, " Wholesale 
 and retail — one tenant." Held, the represen- 
 tations of the insured with reference to the 
 building, though' untrue, did not afiect the in- 
 surance on the goods. Howard Wire and Ma- 
 rine Ins. Co. v. Cornii^, 24 111., 455. 
 
 4. Policy upon two houses; separate sums 
 on each. One of the houses became vacant, 
 contrary to a condition of the contract. Held, 
 the policy was good as to the other house. 
 HaHford Fire Ins. Co. v. Walsh, 54 111., 164. 
 
 5. Buildings and furniture insured for sep- 
 arate sums in the same policy. Htid, a ma- 
 
 . terial concealment which avoided the insur- 
 742 
 
 ance as to the buildings did not avoid it 
 upon furniture. Loehner r>. Home Mut. Ins. 
 Co., 17 Mo., 247;. 19 id., 628. 
 
 6. On a lively stable and certain personal 
 property described. Insured warranted 
 against incumbrances. The realty was in- 
 cumbered. Held, the general rule, "void in 
 part, void in toto," did not apply ; for that rule 
 was to be invoked only where there is some 
 all pervading vice, such as fraud or some un- 
 lawful act which is condemned by public pol- 
 i<^ or by the common law ; the policy was 
 void only as to the real proper^ and valid 
 as to the personal property. Koonte d. Hanni- 
 bal Savings and Ins. Co., 42 Mo., 126. 
 
 7. Policy to A. & B., on store and goods. 
 The store was the property of A. only. Hdd, 
 A. & B. could recover fur the loss of the 
 goods. Phmnix Ins. Co. v. Lrvarence, 4 Met 
 (Ky.),9. 
 
 8. Warranted free from, any charge, damage 
 or loss, which may arise in consequence of 
 engaging or having been engaged in illicit 
 trade. Part of the ship's cargo was illegally, 
 and part rightfully seized. Held, as to the 
 property which was illegally seized, the in- 
 surer was liable. Gueullu v. Orleans Ins. Co., 
 18 Martin (La.), 11. 
 
 9. On buildings and stock in trade, separate 
 sums on each. Stipulated : " If the title of the 
 insured to the realty is not absolute, the policy 
 shall be void." He did not have an absolute 
 title to the realty. Held, in the absence of 
 fraudulent representations or concealment, he 
 was entitled Ui recover for the stock in trade, 
 because the policy was divisible. Date v. 
 Oore District Mutual Fire Ins. Co., 14 U. C. C. 
 P., 549. 
 
 10. $1,200 on abuilding in W. street, $800 
 on dwelling in H. street, and $800 on house- 
 hold furniture contained therein. Stipulated : 
 " If the property insured shall be incumbered 
 without notice to insurers, the policy shall be 
 void." The defendant pleaded, "That the 
 dwelling house on H. street was under mort- 
 gage to W., of which defendants never had 
 notice, whereby said policy is void." Held, 
 when a policy covers two or more distinct 
 properties, each being insured for a fixed sum 
 and at a fixed rate, it is a policy upon each, 
 separately, and not on all jointly; hence an in- 
 cumbrance on the dwelling did not affect the 
 right of insured to recover for a loss of the 
 other property on which there was no incum- 
 
1485 
 
 VOID IN PART, VOID IN TOTO— VOUCHERS. 
 
 1486 
 
 MisoeUaaeous. 
 
 brance. Date v. Cfore District Mutuai Pire 
 Jna. Go^ 14 U. C. C. P., 502. 
 
 VOID IN PART, VOID IN TOTO. 
 
 1. On bmldings and household famitore 
 warranted against incambnnces. The lands 
 ■were incumbered. HeUL, void in part, void in 
 toto (citing Wilson «. Herkimer County Ins. 
 Co., 6 N. T., 53 ; Browns «. People's Mut. Ins. 
 Co., 11 Cush., 380). Smith «. Empire Ina. Go^ 
 25 Barb., 497. 
 
 2. Policy upon three adjoining stone dwell- 
 ing^ $666.66% upon each. Stipulated: *'The 
 occupation of a grocer, and the keeping of 
 gunpowder is prohibited." At the time the 
 policy was made, the lower story of one of the 
 dwellings was occupied as a shoe store, one 
 as a grocery and the other as a millinery store. 
 Subsequently the shoe store was changed to 
 a dry goods, hardware and grocery store, and 
 among the articles was part of a keg of pow- 
 der, kept, without the knowledge of insured, in 
 the cellar under the kitchen, nearly under the 
 stove. Afire took place in the kitchen, which 
 communicated with the powder, and destroyed 
 the kitchens of the three houses. Held, the 
 contract was entire; that the knowledge of 
 insured as to the fact that bis tenant kept gun- 
 powder was not material; hence, insurers 
 were released. Fire Asiodation v. IFi'Mtow- 
 soa, 26 Penn. St, 196. 
 
 3. $500 on bam and stable; $1,500 on per- 
 sonal property: Stipulated: "A failure to 
 disclose incumbrances shall render the policy 
 void." In answer to an "interrogatory pro- 
 pounded in the application, he said that the 
 property was incumberedf 3,000 ; but they were 
 in fact very much larger against the realty. 
 Held, the contract was entire and not separa- 
 ble, that the .stipulation applied to the entire 
 policy ; hence, the whole contract must fall. 
 Oottgman v. Insurance Go., 56 Penn. St, 210. 
 
 4. Insured requested insurance on his store 
 and goods. He stated that the store was occu- 
 pied by the owner, and that there was no in- 
 cumbrance on it The store did not belong to 
 the insured. Held, the contract was entire 
 and void in toto. Loo^oy c. Augvsta Mutual 
 Fire Int. Go., 45 Me., 472; GtnOd c. York 
 County Mutual Fire Int. Go., 47 id., 403. 
 
 5. Insured procured a policy on property, 
 part of which was his own absolutely, and the 
 other part he held in trust to secure the pay- 
 ment of a debt. The policy provided that 
 property held in trust must be insured as such, 
 otherwise the policy will not cover it; also, 
 that by property " Held in trust is intended 
 property held as collateral security, in which 
 case this company shall be liable only to the 
 extent of the interest of the insured in such 
 property." Also provided : " The true title of 
 the insured, and the extent of bis interest, 
 shall be represented to the company and ex- 
 pressed in the policy in writing; otherwise 
 the policy shall be void." Held, a failure to 
 inform the company that a portion of the 
 property was held as collateral security, 
 avoided the contract in toto. Day v. Charter 
 Oak Fire and Marine Inn. Go., 51 Me., 91. 
 
 6. Insured obtained a policy on an undi- 
 vided half of a dwelling house, but after- 
 wards, on tiie petition of his cotenant, a judg- 
 ment of partition was rendered. The policy 
 prohibited any alienation or change in the title. 
 Held, this was alienation which avoided the 
 policy, not only as to the realty, but as to per- 
 sonal property included in it. Barnes v. Union 
 Mutual Fire Ins. Go., 51 Me., 110. 
 
 7. $700 on stock of books and stationer)-, 
 and $300 on music, musical instruments, fancy 
 goods, bronze powder and medicines. Other 
 insurance prohibited ; but a policy was made 
 upon the music and musical instruments only. 
 Held, the whole contract was void. Associated 
 Firemen's Ins. Go. «. Assam, 5 Md., 165. 
 
 8. On building for a sum certain, and on 
 machinery for another sum. Hdd, the con- 
 tract was entire ; if it was void in part, no re- 
 covery could be had. Bowman c. Franklin 
 Fire Ins. Go., 40 Md., 630. 
 
 9. On buildings and personal property. 
 The title to the realty was warranted absolute 
 which warranty was broken. Held, the con- 
 tract was entire, being void in part it was 
 void »'» toto. Hinman v. Hartford Fire Ina. 
 Go., 36 Wis., 159. 
 
 VOUCHERS. 
 
 (See Fboois of Lobs.) 
 
 743 
 
1487 
 
 VOYAGES ENSURED. 
 
 148b 
 
 What is a sailing on — What is not a sailing on. 
 
 VOYAGES INSURED. 
 
 I. What is a sailinq on. 
 
 II. NOT A BAILING ON. 
 
 III. Onus pbobandi. 
 
 I. What is a sailing on. 
 
 1. At and from Barcelona to Baltimore. 
 She was arrested and detained at Barcelona. 
 The voyage contemplated was from Barcelona 
 to Baltimore, thence to , Havana. Hdd, the 
 voyage contemplated was within the policy. 
 Steinback v. Columbian Ins. Co., 2 Gaines, 129. 
 
 a. Prom Newry t» New York. Master, 
 with assent of the agent of insured, contracted 
 to land passsengers at Halifax. Before 
 reaching the dividing point to turn off to 
 Halifax, she struck a rock, in consequence of 
 which she bore away to Dublin to refit. Held, 
 sailing under a declared intention to touch at 
 Halifax did not make the voyage commenced 
 different from that described in the policy. 
 Henshaw ». Marine Ins. Co., 2 Gaines, 874, 
 
 3. The intention of the master at the com- 
 mencement of the voyage to put into an -inter- 
 mediate port out of the course of the voyage, 
 the termini being the same, is not the substitu- 
 tion of a different voyage, but is only an in- 
 tention to deviate. Sobart v. Norton, 8 Pick., 
 159. 
 
 4. On freight from Odessa to England. She 
 was chartered from Odessa to Rotterdam, but 
 because war had broken out between England 
 and Holland, the master was instructed by the 
 freighter's agent at Odessa, to proceed to Ham- 
 burg or Bremen, in case he could not get to 
 Rotterdam, but before doing so, to put into 
 London or Newcastle, where he might receive 
 other orders from the freighters, the difference 
 in the freight to be settled by arbitration. She 
 was captured at the Grecian Islands. Seld, 
 the instructions given by the freighter's agents 
 constituted a new contract, under which the 
 vessel was sailing at the time of the capture ; 
 tliat on her arrival in England, freight would 
 have been earned, therefore she was on the 
 voyage insured. Hall v. Brown, 2 Dow, 367. 
 
 5. On freight from St. Ubes to Portsmouth, 
 with liberty to seek, join, and exchange con- 
 voy. She loaded salt at St. Ubes for Gotten- 
 burg. Portsmouth was one of the places 
 
 744 
 
 whence convoys were appointed for Gotten- 
 burg. She sailed for Gottenburg, intending to 
 call at Portsmouth, and was lost before she 
 arrived at Portsmouth. Held, a freight voy- 
 age might be insured part of the way, hence 
 insurers were liable. Taylor v. Wilson, 15 
 Easti 324. 
 
 11. What is not a sailing on. 
 
 1. Policy upon the cargo of a Prussian ship 
 from New York to St. Andero, Spain. An 
 abandonment was made after the owner re- 
 ceived intelligence of capture. The order for 
 insurance stated that she would have a clear- 
 ance for Hamburg. By the bill of lading 
 signed by the shippers and the master, it ap- 
 peared the cargo was shipped to Hamburg on 
 account of persons in Stettin. Master's pro- 
 test, on oath, stated that she was bound from 
 New York for Hamburg ; that she encountered 
 heavy weather ; that master considered it ad- 
 visable to put into St. Andero and lay at quar- 
 antine, rather than proceed to Hamburg, 
 because at that season it was probable the ice 
 would damage her; that on his way to that 
 place, he was captured. To this evidence the 
 insurer demurred. Held, the vessel sailed fot 
 Hamburg and not for St. Andero, and that the 
 policy never attached. Forbes a. Church, 3 
 Johns. C., 158. 
 
 2. $2,000 on freight from Newport to 
 Point de Galle, at and from thence to Akyab, 
 also $4,000 on freight from Akyab to a port of 
 discharge in the U. K. She arrived at Akyab, 
 and while there, the master contracted her to 
 take a cargo of rice for Queenstown or Fal- 
 mouth, at captain's option, or on the continent 
 between Havre and Hamburg. She arrived at 
 Falmouth, where the master, received orders to 
 go to Antwerp. She sailed, but went ashore on 
 the south side of the Isle of Wight, and was to- 
 tally lost before turning off for Antwerp. Held, 
 if the original place of destination be abandon- 
 ed in order to go to another port of discharge, 
 the voyage becomes changed, because one of 
 the termini of the original voyage is changed. 
 When she sailed from Falmouth for Antwerp, 
 she commenced a voyage not insured in this 
 policy. Merrill v. Boylest/on Fire and Manivn 
 Ins. Go., 8 Allen, 247. 
 
 3. From her ports of loading in Virginia to 
 Rotterdam, with leave to call at a port in Eng- 
 land. She cleared for Hull, and was lost on 
 
1489 
 
 WAGER POLICY — WAIVER. 
 
 1490 
 
 Of the conditioiis — Of failure to deliver a written application, etc. 
 
 the voyage. Held, she did not sail on the voy- 
 age insured, hence insurers were discharged. 
 Areliibald f>. Laird, Faculty Dec, 1787 to 1792, 
 p. 205; s. c, 1792 to 1796, p. 142. 
 
 4. At and from Rothsay to the Isle of Man, 
 and from thence to Broom iel aw of Glasgow. 
 Beld, if she sailed on a voyage other than that 
 insured, and was lost, insurers were not liable, 
 though at Uie time of the loss, she had not 
 turned off the line of the voyage insured ; but 
 the insured was permitted to carry the case 
 back to get proof that she sailed on the voy- 
 age insured. Bain v. Kippen, Faculty Dec. 
 1781 to 1787, p. 196. 
 
 5. " From the Bay of Honduras until she 
 shall arrive at Bristol." She cleared for Lon- 
 don and was lost about eighteen miles off St 
 George's Key. Seld, insurers were discharged, 
 for she never sailed on the voyage insured. 
 BndutTian v. Bunter-Blair, Faculty Dec., 1778 
 to 1781, p. 16C. 
 
 III. Ontts peobandi. 
 
 The defense was that she did not sail on the 
 voyage insured. Beld, the onn» was on the 
 insurers to prove that she deviated. Kerr v. 
 Farlie, 1 S. & D, 384. 
 
 WAGER POLICY. 
 
 (See Yaijs aud Tom Policibs.) 
 
 WAIVEE. 
 
 L Of the conditioss uf the polict. 
 
 II. FAn-TTBE TO DKLTVEB A WKITTEN AP- 
 
 PLICATION OR ANSWER qUKSTIONS 
 IN IT. 
 
 III. ATTrHORITT TO WAIVE. 
 
 IV. What is not suppicient evidence of. 
 
 I. Of the ooNDmoNS in the policy. 
 
 1. A promise by the company to pay, with 
 full knowledge that the insured has not com- 
 plied with the conditions of the policy, waives 
 the noncompliance. Greenfidd v. MaitaehU' 
 $ettg Mutual Life Ins. Co., 47 N. Y., 4^. 
 
 2. Stipulated: "None of the conditions 
 
 shall be waived, except by a written agree- 
 ment signed by an oflScer of the company." 
 Beld, a parol waiver of any of them was good, 
 notwithstanding the provision (citing Parker 
 v. Arctic Ins. Co., 1 N. T. S. C, 397. Van Allen 
 f>. Farmers Joint Stock Ins. Co., 4 Hun. (N. Y.), 
 413. 
 
 3. Company's by-law, part of the contract, 
 provided: "Unless the true title of the in- 
 sured shall be expressed in the proposal, the 
 policy shall he void." The policy was written : 
 " On his factory, water wheel, machinery, 
 stock in trade and fixtures." Insure d stated, 
 incumbered $23,000 on buildings and other 
 properly worth over $30,000. Beld, sufiScient 
 to satisfy the by-law. Buffum v. Bowdileh 
 Mutual Fire Ins. Co, 10 Cush., 540. 
 
 4. The policy, signed by the president and 
 secretary in compliance with the by-laws, was 
 upon property used for distilling purposes. 
 Fire heat and steam power were used in 
 operating the establishment, all of which was 
 known to insurer. One of the company's 
 rules provided, that such risks, should be 
 approved by an executive committee of three 
 directors, before any policy should issue. 
 Beld, the action of the committee might be 
 waived, and the execution and delivery of the 
 policy, without an approval by the committee, 
 established such waiver ; the policy was valid 
 and a good consideration to support an action 
 upon the premium note. Merchants and Manu- 
 JUdurers Ins. Co. v. Curran, 45 Mo., 143. 
 
 II. Of failuee to delivee a weitten 
 
 APPLICATION, OE ANSWEE QUESTIONS 
 IN IT. 
 
 1. The applicant filled up an application of 
 the Empire State Life Ins. Co., and was exam- 
 ined by two physicians. About that time the 
 agent who received the application became 
 the agent of the Empire Mutual Life Ins. Co.; 
 thereupon he copied the former application 
 into a blank of the latter company, and the 
 physician copied his certificate from the other 
 application, and this latter paper was pre- 
 sented to the defendant, who issued a policy 
 on it; but it was never signed by the appli- 
 cant Beld, the defendant could not object to 
 the payment of the claim on the ground that 
 no application had been made. Bohringer ». 
 Empire Mutual Life Ins. Co., % N. Y. S. C, 
 610. 
 
 74i5 
 
1491 
 
 WAIVER. 
 
 1492 
 
 Of authority to waive — What is not sufflcifint evidence of. 
 
 2. One question in the application was not 
 answered. Held, insurers should not have is- 
 sued the policy, if they intended to insist upon 
 the answer. Sail v. People's Mutual Fire Ins. 
 Co., 6 Gray, 185. 
 
 3. The application asked: "How many 
 tenants,? How are the buildings occupied ? " 
 These were not answered. Held, issuing the 
 policy without insisting upon the answer 
 waived the right to the information called for. 
 Liberty Hall Ass'n v. Housaionie Mutual Ins. 
 Co., 7 Gray, 261. 
 
 /I. The policy was made subject to an appli- 
 cation ; and upon notice, insurer produced at 
 the trial a memorandum made by insurer's 
 agent to whom plaintiff had applied for insur- 
 ance ; but plaintiff testified he never signed or 
 authorized any one to sign this memorandum, 
 and declined to put it in evidence. Held, issu- 
 ing a policy without an application or upon a 
 defective application, true so far as it went, 
 was a waiver of any objection on that ground. 
 Blake D. Exchange Mut. Ins. Co., 12 Gray, 265. 
 
 5. The insured failed to answer the question, 
 "Who occupies the building?" Held, if the 
 fact not disclosed did not affect the hazard, it 
 was immaterial, but of this the jury were the 
 judges. Haley v. Boreliester Mutual Fire Ins. 
 Co., 12 Gray, 545. 
 
 6. The application contained this question: 
 "Is it incumbered?" Answer. "Applicants 
 are mortgagees in possession. Other incum- 
 brance exists." Held, issuing the policy 
 waived any further information on the ques- 
 tion of incumbrance (citing Hall s. People's 
 Ins. Co., 6 Gray, 185 ; Allen v. Charlestown 
 Ins. Co., 5 Gray, 384; Liberty Hall Ass'n u. 
 Housatonic Ins. Co., 7 Gray, 261). Nichols v. 
 Fayette Mutual Fire Ins. Co., 1 Allen, 63. 
 
 7. Stipulated : " Insured covenants that the 
 representations given in the application for 
 this insurance contains a just, full and true 
 exposition of all facts and circumstances in 
 respect to the condition, sitnation, value and 
 risk of the property insured." This policy 
 was issued upon a parol request, no represent- 
 ations being made. Held, insured waived the 
 right to raise any defense founded upon the 
 fact that there was no application or repre- 
 sentation. Commonwealth v. Hide and Leather 
 Ins. Co., 112 Mass., 130. 
 
 8. A written application made by the in- 
 sured. He was asked, " What amount is now 
 insured on the property ? " "In what office t " 
 
 746 
 
 "Stat« particularly on whose account." To 
 which he made no answer. Insurers received 
 the application, and made the policy. Held, 
 a waiver of notice of any matter, which a 
 truthful answer would have disclosed. Lay- 
 ton Ins. Co. V. Kdly, 24 Ohio St., 345. 
 
 9. In the application, insured was asked 
 how the barn was occupied, to which no an- 
 swer was given. Held, making and delivering 
 the policy waived all right to object to the 
 want of the answer. Lodge County Mut. Ins. 
 Co. V. Rogers, 12 Wis., 337. 
 
 III. Of authoeity to waive. 
 
 The ofScers of a mutual insurance company 
 are special agents, acting within limited pow- 
 ers, and have no authority to dispense with 
 the by-laws. The doctrine of waiver applied 
 to contracts of insurance, made by companies 
 organized with a capital stock, represented by 
 a general agent, does not apply to companies 
 established on the mutual plan. Bremer v. 
 CliMsea Mutual Fire Ins. Co., 14 Gray, 203. 
 
 IV. "What is not sufficient evidenoe 
 
 OF. 
 
 1. A mutual insurance company received 
 an installment of premium upon a risk about 
 which there had been a material concealment. 
 Held, the acceptance of the premium was not 
 a waiver of the concealment, unless the per- 
 son who accepted it had knowledge, at the 
 time, of the fact suppressed. Oilbert «. North 
 American Ins. Co., 23 Wend., 43. 
 
 2. "Policy to be void if the property be 
 alienated." An alienation was made, and 
 subsequently, with knowledge of the aliena- 
 tion, insurer exacted payment of the deposit 
 premium note. Held, not a waiver of the 
 alienation. Neely v. Onondaga County Mutual 
 Ins. Co., 7 Hill, 49. 
 
 3. The use of spirit gas was prohibited, and 
 the only evidence tending to show a waiver 
 of this condition was that insurer knew that 
 the former tenant used it Held, insufficient 
 Mimesheimer v. ContinenM Ins. Co., 5 J. & Sp. 
 (N. Y.), 332. 
 
 4. Assessment made against the policy after 
 the company had refUsed to pay the claim ; but 
 it was not collected, and there was some evi- 
 dence tending to show it had been made by 
 mistake. Held, not sufficient to warrant a sab- 
 
1193 
 
 WAR — WARRANTED FREE FROM AVERAGE. 
 
 U9i 
 
 Of memorandum articles. 
 
 mission of tlie question of waiver to the jury. 
 Elliott o. Lycoming County Itis. Co., 66 Penn. 
 St, 33. 
 
 5. The policy required insured to procure 
 from a notary public, most contiguous to the 
 place of the fire, a certificate of the loss and 
 of the amount of it. Held, a condition pre- 
 cedent, which insurer might waive; hut. a 
 failure on the part of the insurer to object, at 
 the beginning, thai the certificate delivered 
 was not made by the nearest notary, coupled 
 with an offer to pay a part of the claim, was 
 not sufficient evidence of waiver. Noonan 
 e. Hartford Fire Ins. Co., 21 Mo., 81. 
 
 WAR. 
 
 (See CoHTBioT; Paymbst or Pbsmicth.) 
 
 WARRANTED FREE FROM AVERAGE. 
 
 I. Of mbmobanddm articles. 
 
 (a) Articles perisJuible in their own na- 
 
 ture. 
 
 (b) Fruit. 
 
 (c) Malt, com and rice. 
 
 (d) Vegetables and roots. 
 
 (e) Furs and hides. 
 
 II. Op dampness and change of flavob. 
 
 (a) When insurer ts liable for. 
 
 (b) not liablefor. 
 
 III. Of the ship. 
 
 (a) When several distinct losses may be 
 
 added to reach the limitation. 
 
 (b) WT^n several distinct losses may not 
 
 be added to reach tlie limitation. 
 
 (c) Of the clause, " liable for total loss 
 
 only." 
 
 (d) WJien insurer of ship is protected 
 
 by the warranty. 
 
 IV. Of pbeight. 
 
 When insurer of, is liable. 
 V. Of cargo. 
 
 (a) WJien seeeral distinct losses may be 
 
 added to reach the limitation. 
 
 (b) When charges in general average 
 
 may not be added to partial loss 
 to reach the limitation. 
 
 (c) When saving part of cargo releases 
 
 insurer. 
 
 (d) When saving part of the cargo does 
 
 not release insurer. 
 
 VI. Of the effect of separate valua- 
 tions. 
 VII. Of construction. 
 
 L Of MEMOEAJifDtJM AETICLES. 
 
 (a) Articles perishable in their own 
 nature. 
 
 1. Proof may be given to show that furs are 
 not articles perishable in their own nature 
 within the meaning of the words of the pol- 
 icy. Astor V. Union Ins. Co., 7 Cow., 202. 
 
 2. Warranted salt and all articles perishable 
 in their own nature are free from average un- 
 less general ; also, sugar, skins, hides and to- 
 bacco wai-ranted free from average under 
 seven per cent., unless general. Held, deer 
 skins were not " ai'ticles perishable in their 
 own nature," but they were included in the 
 clause that related to skins and hides. Bake- 
 well V. United Ins. Co., 3 Johns. C, 246. 
 
 3. All articles perishable in their own na- 
 ture were warranted free from average. Held, 
 insurer might prove by legal testimony 
 whether or not flour be an article perisha- 
 ble in its own nature. Nelson v. Louisiana 
 Ins. Co., 17 Martin (La.), 289. 
 
 (b) FruH. 
 
 .4 " Fruit, etc., warranted free from average 
 unless general." Held, dried prunes were 
 fruit, and within the exception. De Pau «. 
 Jones, 1 Brev., 437. 
 
 (c) Malt, com a/nd rice. 
 
 5. " On malt, warranted corn, fish, etc., free 
 from average unless general." Held, malt was 
 corn, and within the exception. Moody v. Sur- 
 ridge, 2 Esp., 633. 
 
 6. Rice is not corn within the meaning of 
 the memorandum. Scott v. BourdiUion, 5 B. 
 
 6 P., 213. 
 
 (d) Vegetables and roots. 
 
 7. It is competent to show that the word 
 "roots," inserted in policies of insurance, is 
 confined to such as are perishable in their 
 own nature; that sarsaparilla is not perisha- 
 ble in its own nature, and not included in the 
 memorandum. Coit v. Commercial Ins. Co. 
 
 7 Johns., 385. 
 
 747 
 
1495 
 
 WARRANTED FREE FROM AVERAGE. 
 
 1496 
 
 Of dampness and change of flavor — Of the ship. 
 
 8. Stipulated: "Vegetables and roots, pre- 
 pared or otherwise, rags, hempen yarn, etc., 
 and all articles perishable in their own nature, 
 are warranted free from average except gen- 
 eral." Held, pink root was within the excep- 
 tion. Klat V. BdoMiare Ins. Co., 33 Penn. St., 
 262. 
 
 (e) JF'iirs and hides. 
 
 9. On a cargo of furs: "Warranted skins 
 and hides and all other articles perishable In 
 their nature, free from average unless general." 
 Sdd, it was competent for the insured to prove 
 that the term " skins and hides," in mercan- 
 tile usage, did not include furs. Astorv. Union 
 Int. Co., 7 Cow., 202. 
 
 11. Of dampness and chastge of 
 
 FLAVOE. 
 
 (a) When insurer is lialilefor. 
 
 1. On grain in bulk. "Warranted free 
 from damage or injury from dampness, change 
 of flavor, except from actnal contact with sea 
 water, of the articles damaged, occasioned by 
 perils of the sea." A portion of it was damaged 
 by contact with sea water, another portion was 
 damaged by dampness. SeW,, the defendant was 
 liable for any damage communicated indirect- 
 ly by absorption; that if a portion of the prop- 
 erty insured was damaged by actual contact 
 with sea water, and other portions were affect- 
 ed by that cause, the insurers must answer for 
 the damage to all. But as to damage caused 
 by effluvia emitted from bides damaged by 
 sea water, the insurers were not liable. Wood- 
 ruff c. Commercial Mut. Ins. Co., 2 Hilt, 123. 
 
 (b) When insufer is not Uahle for. 
 
 2. On wine. Stipulated: "Not to be liable 
 for leakage of molasses, oil, or other articles, 
 unless it be occasioned by stranding or col- 
 lision, nor for damage or injury to goods by 
 dampness, rust, change of flavor, or being 
 spotted, discolored, musty or mouldy, unless 
 the fiame be caused by actual contact of sea 
 water with the articles damaged, occasioned by 
 sea perils." Slie encountered heavy weather, 
 shipped a good deal of sea water, and the 
 voyage was greatly prolonged. All the cases 
 of wine were wet, either by sea water or steam 
 generated in the hold by the presence of sea 
 
 748 
 
 water and the changes of climate through 
 which she had passed. Some of the bottles 
 were partly empty, though they retained their 
 corks. Tlie cases and their contents were 
 heated, and the wine depreciated in conse- 
 quence. HM, insiu-ers were not liable for the 
 loss of the wine which had escaped from the 
 bpttles, nor for any depreciation caused by 
 dampness, nor for any damage to cases which 
 had not actually come in contact with sea 
 water. Cory v. Boylston Fire and Marine Ins. 
 Co., 107 Mass., 140. 
 
 3. On 1,711 packages of teas. "Warranted 
 free from damage or injury from dampness, 
 change of flavor, or being spotted, discolored 
 musty or moldy, except caused by actu:il 
 contact of sea water witii the articles damaged, 
 occasioned by sea perils." She met with bad 
 weather and 449 packiiges were greatly dam- 
 aged by contact with sea water. The remain- 
 ing 1,363 were sold at a depreciated price, 
 because they could not be sold in consec- 
 utive numbers, the fact being that in such 
 cases the packages nut in contact with sea 
 water are frequently injured by dampness, etc. 
 Held, insurers were liable for damage caused 
 by actual contact with sea water, and nothing 
 more. Cator v. Great Western Int. Co., 8 L. B. 
 C. P., 552 ; 42 L. J. 0. P., 266 ; 29 L. T. (N. S.}, 
 136. 
 
 IIL Of the ship. 
 
 (a) When several distinct losses may 
 be added to reach the limitation. 
 
 1. " Warranted free from average unless it 
 amounts to ten per cent." Hdd, loss by jetti- 
 son and salvage expenses must be added to- 
 gether for the purpose of determining whether 
 the losses reached the limitation. Oagzam v. 
 Cincinnati Ins. Co., 6 Ohio, 71. 
 
 2. " Free from average imder three per cent, 
 except general." There were distinct losses 
 arising at different times. Held, all must be 
 added together and if they amounted to the 
 limitation, the insurer was liable. Blackett v. 
 Boyal Exchange Ms. Co., 3 Tyrw., 366; 1 L. J. 
 (N. S.) Ex., 101* ; 2 C. & J, 344. 
 
 (b) When several distinct losses may 
 not be added to reach the limitation. 
 
 S. Valued policy on ship — stipulated: 
 
Ii97 
 
 WARRANTED FREE FROM AVERAGE. 
 
 1498 
 
 Of freigrht. 
 
 " Insurer shall not be liable for a particular 
 average unless it amounts to five per cent" 
 Held, the percentage must be reckoned upon 
 tlie valuation less the premium. Brooks v. 
 Onentai Ins. Co., 7 Pick., 359. And two dis- 
 tinct damages happening several months 
 apart cannot be blended to carry an average 
 loss up to five per cent. Ibid. 
 
 4. Stipulated: "Insurers shall not be li- 
 able for any partial loss, unless it amount to 
 five per cent., exclusive in each case of all 
 charges and expenses incurred for the purpose 
 of ascertaining and proving the loss." Hdd, 
 if there were two several disasters, the burden 
 was upon plaintiff to show that each disaster 
 caused a law amonntiug to five per cent 
 PaMock V. Commercial Ins. Co., 104 Mass., 
 521. 
 
 5. Not liable for any partial loss unless it 
 amounts to five per cent, exclusive of all 
 charges incurred for ascertaining and proving 
 it. Held, two or more distinct losses, less than 
 five per cent each, could not be added together 
 to carry the whole to five per cent (citing 
 Paddock v. Ins. Co., 104 Mass-, 531 ; Brooks 
 «. Ins. (30., 7 Pick., 25a) Sagarv. Jfeu Eng- 
 land Mutual Marine Ins. Co., 59 Me., 460. 
 
 (c) Of the clanse " lialle for total 
 loss only." 
 
 6. On ship against total loss only. She ar- 
 rived at the port of destination in a damaged 
 condition, and, upon survey was sold, for ac- 
 count of whom it might concern, bringing only 
 $2,200. Held, there could be no recovery so 
 long as she existed as a ship. Buchanan v. 
 Ocean Ins. Co., 6 Cow., 318. 
 
 7. " On ship liable for a total loss only." 
 Hdd^ a constructive total loss was within the 
 policy. Heebner v. Eagle Ins. Co., 10 Gray, 
 131. 
 
 8. The respondentia bond provided that 
 the borrower should be discharged in case 
 the ship should be utterly lost Held, that 
 nothing but an actual total loss would dis- 
 charge the borrower; and it was immaterial 
 whether it would cost more than she was 
 worth to repair her; that nothing short of a 
 total destruction would constitute an utter 
 loss. Insurance Co. of Pennsylnania v. Duval, 
 8 8. & It., 138. 
 
 9. On ship against total loss only. The 
 jury found a consUuctive total loss. Held, 
 
 insurers were liable. Adams v. Madcetaie, 13 
 C. B. (N. S.), 442; 9 Jur. (N. S.), 849; 33 L. J. 
 C. P., 93; 11 W. R., 343; 7 L. T. (N. S.), 711. 
 
 (d) When instirer of ship is protected 
 hy the wcurranty. 
 
 10. Time i>olicy on steamer, her body, en- 
 gine, tackle, apparel, and other furniture, 
 valued at $30,000, insured for $4,000, warrant- 
 ed free from average under fifteen per cent., 
 unless general. She was damaged by fire. 
 Hdd, insured could not recover unless the 
 damages amounted to fifteen per cent of t)ie 
 sum valued in the policy. Biley -o. Ocean Ins. 
 Co., 11 Kob. (La), 255. 
 
 11. Stipulated: "Not liable unless loss 
 amounts to ten per cent, on the sum insured, 
 $8,000." She was damaged by collision; 
 $589 was expended to replace kitchen and 
 table furniture, $647 repairs to the hull=$l,136. 
 Held, one-third new for old must be deducted, 
 hence the net loss did not reach the limitation. 
 Therefore, the insurers jvere not liable. Wal- 
 lace «. Ohio Ins. Co., i Ohio, 234. 
 
 la. Stipulated: " Insurer shall not be liable 
 for the expense of dockage or hauling out for 
 repairs, nor for any loss, except in cases of 
 general average, unless the necessary repairs, 
 required solely by the disaster, shall amount 
 to ten per cent of the agreed value of the 
 policy." Held, insurers were not to be liable 
 for any docking or hauling out for repairs, 
 unless the repairs, required solely by the dis- 
 aster, shall amount to ten per cent of the 
 agreed value in the policy named. Snapp v. 
 Fireman's Ins. Co., 3 Handy, 252. 
 
 13. Stipulated: "No loss or average shall 
 in any case be paid under ten per cent on Uie 
 agreed value in this policy. Valued, $15,000." 
 She sustained damage and was repaired at an 
 expense exceeding $1,500; but after deducting 
 one-third new for old, the net loss was less 
 than ten per cent Held, not a claim within 
 the policy. Kerr e. Quaker City Ins. Co., 33 
 Mo., 158. 
 
 IT. Of freight. 
 When insurer of is liable. 
 
 1 . On freight, valued. " Not liable for any 
 partial loss on salt, grain, fish, fruits, hides, 
 skins or othej goods esteemed perishable in 
 their nature, unless it amount to seven per 
 
 749 
 
1499 
 
 WARRANTED FREE FROM AVERAGE. 
 
 loOfr 
 
 Of cargo. 
 
 cent., and happen by stranding; nor for par- 
 tial loss on other goods, or on the vessel or 
 freight, unless it amount to five per cent, 
 exclusive in each case of all charges and 
 expenses of ascertaining and proving the loss." 
 HM, insurers were liable for partial loss of 
 freight if it exceeded five per cent,, although 
 the cargo consisted of perishable articles, and 
 although the loss was not occasioned by 
 stranding. Lord v. Neptune In». Co., 10 Gray, 
 109. 
 
 2. " On freight against total loss only." 
 The voyage was broken up by a peril insured 
 against. The agent of the underwriters re- 
 ceived a portion of the damaged goods, sold 
 them at auction and handed over to the mas- 
 ter $487.35, on account of freight. Held, the 
 money so paid was not freight pro rata, for 
 the vessel was not in a condition to insist on 
 retaining the goods with an intention to carry 
 them forward; the act of insurer's agent 
 could not convert a total into a partial loss 
 of freight, and so take away the legal rights 
 of insured ; the payment of the money, or the 
 refusal to accept it when tendered, could not 
 affect the question whetlier the loss was 
 total or partial. Willard v. Millers and Man- 
 ufacturers Ins. Go., 30 Mo., 35. 
 
 V. Of caego. 
 
 (a) When several distmct losses m/iy 
 he added to reach the limitation. 
 
 1. "Warranted insurer shall not be liable for 
 any partial loss of goods or vessel and freight 
 unless it amounts to five per cent., exclusive, 
 in each case, of all charges and expenses in- 
 curred for the purpose of ascertaining and 
 proving the loss. Seld, " in each case " did 
 not mean at each time of loss ; it referred to 
 the three several subjects insured, goods, 
 freight and vessel ; hence successive losses on 
 the cargo in the course of the voyage, each less 
 than five per cent, were a charge against the 
 insurer, if they amounted to five per cent, in 
 the aggregate. Donnell v. Columbian, Int. Co., 
 % Sumu., 366. 
 
 (b) When charges i/n, general may not 
 he added to paHial loss to reach the 
 Iknitation. 
 
 2. On apples from New York to Liverpool. 
 750 
 
 " Warranted free from average, unless general." 
 476 barrels were jettisoned, and the balance 
 wetted and greatly damaged. Hdd, insurer 
 was liable only in respect of the general aver- 
 age contribution, and only in proportion as 
 the value insured bore to the value estimated 
 for the purposes of contribution; in other 
 words, the percentage on the sum insured. 
 HotcJikiss o. Commercial Mut. Ins. Co., 1 Rob. 
 (N. Y.), 489. 
 
 3. Stipulated: "Insurers shall not be liable 
 for any loss or damage (except in cases of gen- 
 eral average) unless it amounts to 20 per cent., 
 exclusive of all charges and expenses incurred 
 for the purpose of ascertaining and proving 
 the loss. And in case of any loss or misfor. 
 tune, it shall be the duty of the insured to use 
 all reasonable and proper means for the secur- 
 ity, preservation and relief of the property to 
 the charges Whereof the insurer will contrib- 
 ute, in proportion as the sum insured bears to 
 the whole sum at risk." The vessel was dis- 
 abled and the goods were damaged less than 
 30 per cent. ; but, adding to it the proportion 
 of the expense incurred in securing and for- 
 warding them, the damages exceeded 20 per 
 cent. Held, the insurers were liable for the 
 proportion of expenses incurred in saving, but 
 not for the damage to the property. Indi'in- 
 apolis Ins. Co. v. Mason, 11 Ind., 171. 
 
 4. Warranted free from average under fifteen 
 per cent., unless general. There was a gross 
 loss of $5,015.24, of which there were $3,253.47 
 general average items, and $1,761.77 particular 
 average on the boat There was no evidence 
 in the case to show the value of the cargo. 
 Held, the plaintiff could not recover for the 
 particular average, because it was less than 
 fifteen per cent. ; nor could any recovery be 
 had for general average in the absence of 
 proof showing the value of the cargo. Billow 
 V. Western Marine and Fire Ins. Co., 1 La. 
 An., 57. 
 
 (c) Whsn saving part of cargo re- 
 insurer. 
 
 5. The cargo, corn, was greatly damaged 
 by perils of the sea, and was sold at fifty cents 
 per bushel; the price of it sound was two 
 dollars and a quarter a bushel. Held, if the 
 property insured was a memorandum article, 
 the insured could not, under any circumstance, 
 call upon the insurer for a partial loss; 
 
1501 
 
 WARRANTED FREE FROM AVERAGE. 
 
 1502 
 
 Of cargo. 
 
 and consequently he cannot by abandonment 
 elect to turn that which was only partial into a 
 total loss (affirming s. c, 3 Wash., C. C, 256). 
 Morean o. United States Ins. Co., 1 Wheat., 219. 
 
 6. " On hides, warranted free from average, 
 unless general ; and in case of loss or damage, 
 Uie assured shall labor, etc., for the preserva- 
 tion of the property, to the expenses of which 
 the insurer will contribute." She arrived at 
 New Diep, where, according to the usage of 
 trade, the hides were put into several lighters, 
 to be carried to Amsterdam, one of which 
 sunk, and some of tbe hides were saved at an 
 expense of $6,000 ; but the rest that were in 
 that lighter were totally lost, to the amount 
 of $4,000. Held, the insurers were free from 
 all partial losses of every kind which did not 
 arise from a contribution in general average; 
 and the hides sunk and not reclaimed were a 
 partial loss. Biays c. Chesapeake Ins. Co., 7 
 Cranch, 415. 
 
 7. On cargo, composed principally of lem- 
 ons and oranges ; warranted free from average, 
 unless general. All the oranges were lost by 
 perils of the seas, but the lemons arrived 
 safely. Held, the insurers were not liable. 
 Humphrey v. Union Ins. Co., 3 Mason, 429. 
 
 8. "Warranted free of particular average; 
 liable for any portion thrown overboard." 
 Held, it was the same as " liable for loss of part 
 by jettison," and insurer was liable only for a 
 total loss of the whole, or for such part as was 
 thrown overboard. Hernandez v. New York 
 Mut. Ins. Co., 6 Blatch., 326. 
 
 9. On com. " Free from average unless gen- 
 eral." Held., so long as the com physically 
 existed, though good for nothing, there could 
 not be a total loss of it; but it should have 
 been left to the jury to say whether the vessel 
 could have been repaired at the port of dis- 
 tress so as to have performed her voyage. 
 Neilson v. Columbian Int. Co., 3 Gaines, 108. 
 
 10. On goods. " Free from average under 
 seven per cent^ unless general." She was 
 compelled to seek a port, and she put into New- 
 castle, on the Delaware, but could get neither 
 repairs nor a place to put her cargo. Tel- 
 low fever raged violently at Philadelphia at 
 that time; she remained at Newcastle till it 
 abated, and then proceeded to Philadelphia. 
 All the com was found damaged, unmerchant- 
 able, and unfit to be reshipped. Held, not a 
 technical total loss of the cargo. Le Boy v. 
 Ooutemeur, 1 Johns. C^ 236. 
 
 11. Stipulated: "Insurers take no other 
 risk than general average, and such total loss 
 only as may arise by the absolute destruction 
 of tlie property," which consisted of provis- 
 ions, soap, candles, fruit and potatoes, iron 
 and hardware. She was stJanded, part of the 
 goods unladen and stored, and the remainder 
 put on board a lighter, to be carried forward. 
 Before the lighter departed, and while the 
 goods stored on shore remained unsold, part 
 of the cargo was stolen or lost. Held, the in- 
 sured could not recover for each article totally 
 lost, there being no total destruction of the 
 thing insured. Guerlain v. Columbian Ins. Co., 
 7 Johns., 537. 
 
 12. Goods inclnded in the memorandum, 
 though greatly damaged, remained in specie 
 at the port of distress, where they were sold as 
 being unfit for reshipment. Held, the insurer 
 was not liable for them, but he was liable in 
 general average for his proportion of goods 
 jettisoned, part of the same cargo and kind 
 of goods. Saltus c. Ocean Ins. Co., 14 Johns., 
 138. 
 
 13. The articles insured in this case were 
 what are called memorandum articles ; a part 
 were totally lost, and insured brought his 
 action to recover as for a total loss of such 
 part Held, he was not entitled to recover. 
 
 Wadsworth v. Pacific Ins. Co., 4 Wend., 34. 
 
 14. On cargo warranted free from average. 
 Held, an insurance against total loss only. 
 Bargett v. Orient Mut. Ins. Co., 3 Bos., 885. 
 
 15. On cargo against general average and 
 absolute total loss only. The vessel was 
 wrecked. Held, nothing but an absolute total 
 loss of the goods conld entitle the insured to 
 recover. Gould v. Louisiana Mut. Ins. Co., 
 30 La. An., 359. 
 
 16. On tobacco, free from average unless 
 general; twenty-three hogsheads were greatly 
 damaged, and produced net $355.84; twenty- 
 seven hogsheads landed at the port of des- 
 tination, produced net $151. Held, the defend- 
 ant was entitled to judgment. Aramamendi 
 e. Louisiana Ins. Co., 2 La. (O. S.), 432. 
 
 1 7. " Free from average unless general." 
 For the safety of .ship and cargo, she was 
 obliged to slip cables and run to the first port 
 to refit. The hatches were not opened till 
 she reached the port of destination, when it 
 appeared the cargo had received damage. 
 Held, insurer on cargo was not liable. Wil- 
 son V. Smith, 3 Burr., 1550; 1 W. BL, 507. 
 
 751 
 
1503 
 
 WARRANTED FREE TROM AVERAGE. 
 
 1504 
 
 Of cargo. 
 
 18. On hogsheads of sugar. "Warranted 
 free from particular average." She was 
 standed and bilged, but in every hogshead 
 there were some loaves of sugar, the greater 
 part having been washed out of each hogs- 
 head. Held, as it could not be said, that 
 none of the sugar was saved, the loss was not 
 within the policy. Sedburg v. Pearson, 7 
 Taunt., 154; s. c. Holt N. P., 349; 2 Marsh., 
 433. 
 
 19. Warranted free from average, unless 
 general or the sliip be stranded. She put 
 into Lisbon. A part of the cargo (flsh) had 
 been jettisoned, and the balance upon survey 
 was found to be of no value. She did not 
 proceed on her destined voyage. Held, it was 
 damage to the value and not a total loss. 
 Cocking v. Fraser, 4 Doug., 295. 
 
 20. " On wheat warranted free from av- 
 erage." While weighing anchor to proceed 
 with convoy, a vessel ran foul of her, in 
 consequence, she was compelled to go into 
 Dover, but she struck on the bar. Survey 
 being made, she was found unfit to con- 
 tinue the voyage, nor could she be repaired 
 except at an expense much greater than her 
 value. The wheat was injured by water; 
 400 quarters were dry, 700 wet, and 60 en- 
 tirely spoiled ; another vessel could have been 
 procured to carry the cai-go forward. Meld, 
 the action could not be maintained. Wilson 
 V. Boyal Exchange Ins. Co., 2 Camp., 623. 
 
 21. "On goods, until the same shall be 
 safely discharged and landed. Rice free from 
 particular average." Within the limits of the 
 port of destination she was wrecked, the 
 whole cargo, greatly damaged, was put into 
 craft and delivered to the consignees, produc- 
 ing only enough to pay freight and salvage. 
 The rice did not make good the freight on it. 
 fieiii, the insurer was not liable for any loss on 
 the rice, and as to the other goods, it was a 
 case of particular average, fflennie v. London 
 Ass. Co., 2 Mau. «fc Sel., 371. 
 
 22. On goods " warranted free from partic- 
 ular average." They were saved, in a very 
 damaged and unprofitable state. The ship 
 was broken up in the port of lading. An 
 abandonment was offered and refused. Held, 
 no claim against the insurers. Thompson v. 
 Royal JExchange Ass. Co., 16 East, 214. 
 
 23. "On silk waste in bales from Leghorn 
 to Liverpool, warranted free from average un- 
 less general, or the ship be stranded." She 
 
 7Sa 
 
 encountered sea peril, put into Gibraltar, and 
 discharged cargo to make repairs. Some 
 being found badly damaged, was sold; but 
 at a reasonable expense it might have been 
 put in a condition to be carried to destination 
 in another vessel. It was carried there in a 
 very deteriorated condition, and sold as silk. 
 Held, the insurer was not liable. Na/vone n. 
 Haddon, 9 C. B., 30; 19 L. J. (N. S.) C. P., 
 161. 
 
 24. "Warranted free from average, unless 
 general or the ship be stranded. On 2,668 
 bags of linseed." She encountered s ea perils 
 and 505 bags were jettisoned ; 1,033 bags were 
 found to be in a very damaged condition at 
 the port of distress ; a large portion of it was 
 thrown into the sea, being rotten and worth- 
 less; the balance was sold and realized only 
 a few shillings. Had it been sent to the port 
 of destination, it would have lost its character 
 as linseed. The remaining 1,160 bags were 
 brought to England and delivered in a sound 
 condition. Held, insurers were not liable. 
 BalU v. Janson, 6 El. & Bl., 423; s. c, 3 Jur. 
 (N. S.), 566; 25 L. J. Q. B., 300. 
 
 25. "On bacon, warranted free from average, 
 unless general, or the ship be stranded, sunk, 
 or burned." She put into Bermuda in dis- 
 tress, and was there sold, because the expense 
 of repairing would have exceeded her value 
 when repaired. Part of the bacon, being 
 found too much damaged for reshipmenl, was 
 sold. The balance was reshipped and arrived 
 at the port of destination in a damaged con- 
 dition. Held, insurers were not liable. Sooth 
 D. Gair, 15 C. B. (N. S.), 391; 8. c, 33 L. J. C. 
 P., 99; 9 Jur. (N. S.;, 1336; 13 W. R., 105. 
 
 26. " On cargo, warranted free from partic- 
 ular average, unless the ship be stranded, sunk, 
 or burnt." There was a constructive total loss 
 of the ship, but the cargo was forwarded at a 
 freight of £835 lis. 7d. Held, the policy was 
 against total loss and general average only, 
 hence insurers were not liable for the loss. 
 Oreat Indian Peninsvla Railway Co. v. 
 Saunders, 1 B. & S., 41 ; s. c, 7 Jur. (N. S.), 
 833; 30 L. J. Q. B., 218; 4 L. T. (N. S.), 240; 
 afiirmed, 2 B. & S., 266; s. c, 31 L. J. Q. B., 
 206 ; 9 Jur. (N. S.). 198 ; 10 W. R., 520 ; 6 L. T. 
 
 • (N. S,), 297. 
 
 27. On a cargo of corn, warranted free from 
 average. She sustained sea damage on the 
 voyage, and was obliged to put into a port in 
 Norway, where the corn was taken out to dry. 
 
1505 
 
 WAERANTED FREE FROM AVERAGE. 
 
 1506 
 
 Of cargo. 
 
 the master intending to repair, and proceed 
 ■with the cai'go. After it was out, the damage 
 seemed so extensive that he songht advice, and 
 resolved to sell it, and it was sold as damaged 
 corn. 3eld, if the expense of drying and car- 
 rying to port of destination would have ex- 
 ceeded the sum for which it would have sold 
 in Norway, the loss was total; but this point 
 was not made in the case, because the expense 
 of drying and taking the cargo home would 
 have fallen very far short of what it sold for in 
 Norway, and therefore insurer was not liable 
 for the loss. Seimer v. Bingroie, 6 Exchr., 263 ; 
 30 L. J. Ex., 175. 
 
 28. On ship and stores, warranted free of 
 average. The stores consisted of fishing lines, 
 boats, and casks. The lines were partially in- 
 jured, and the greater number of the casks 
 had their heads knocked in, the staves broken, 
 and were so much injured as to be useless ex- 
 cept for the purpose of being converted into 
 smaller casks. HeU, it was an insurance 
 against total loss only, and there was not a total 
 loss so long as there was not a total destruc- 
 tion of the subject insured. ARan v. Smith, 
 2C. C. S., 309; s. c, 1 id., 34. 
 
 (d) WTien saving part of cavrgo does 
 not release insurer. 
 
 29. " On machinery, free from average un- 
 less general." She was driven on rocks by 
 the violence of gale, filled with water, became 
 a total wreck and abandoned to insurers 
 whose agent took possession of her, and was 
 engaged about a month in raising the cargo. 
 A large number of different pieces of the ma- 
 chinery, in a greatly damaged state, were ten- 
 dered to insured, and he refused to receive 
 them. About half of it in weight was saved, 
 the remainder being left at the bottom of 
 the sea; and all saved was worth about $50 
 as old iron. As machinery in good order, 
 it would have been worth $2,250 ; but it would 
 have cost more to repair it than the price of 
 new machinery. Held, if every piece of ttie 
 machinery was so damaged by the perils in- 
 sured against as to be entirely unfit for use, 
 had it been supplied with its corresponding 
 or connecting pieces, then there was a total 
 loss of the machinery, notwithstanding the 
 material which composed it still existed; for 
 there was a destruction as to species (citing 
 Judah e. Randall, 2 Caines C. 324; Waller- 
 
 48 
 
 stein «. Columbian Ins. Co., 44 N. Y., 204). 
 Insurance Go. v. Fogarty, 19 Wall., 640. 
 
 30. On cargo, composed of fish and pota~ 
 toes, from Portsmouth to Baltimore, "War- 
 ranted free from average, unless it be general 
 or amounts to seven per cent." She was 
 greatly damaged, and after sixty-five days 
 battle with the winds and waves, put into 
 St Martins, West Indies, with six feet of 
 water in the hold. The fish was entirely de- 
 stroyed, and the potatoes so much rotted that 
 they were sold for $30. She was surveyed 
 found not worth repairs, sold, and the voy- 
 age broken up. MM, a total loss. Robin- 
 gonv.Comnunvaealth Ins. Co., 3 Sumn., 220. 
 
 31. On cargo, from the Spanish Main to 
 New York. " Skins and hides, warranted 
 free from average unless general." She ship- 
 ped a great deal of water, the hides were satu- 
 rated with it, became putrid and emitted a 
 stench so unbearable that all hands were 
 obliged to eat and sleep on deck. She made 
 Havana in distress, where the cargo was land- 
 ed, and complained of as a nuisance. About 
 two-thirds of it was thrown into the sea, and 
 the balance sold by order of the authorities, 
 some of which were reshipped to Boston, 
 where they arrived in a damaged condition, 
 damp and worm eaten. Held, the jury were at 
 liberty to find a total loss if the hides were 
 in such a condition that no prudent man would 
 have taken them to New York in their dam- 
 aged condition. . DePeyster v. Sun Mut. Im. 
 Co., 19 N. Y., 272 ; reversing s. c, 17 Barb., 306. 
 
 32. On coffee and wood. " Against perils 
 of the seas, and all other perils that shall come 
 to the damage of the said merchandise, or any 
 part tTiereof; warranted free of particular av- 
 erage." The words in italics were written. 
 About seventy miles from destination, near 
 Cape May, she encountered a violent gale, 
 went ashore, and was completely submerged 
 when the tide was in. Insured offered to 
 abandon, but insurers refused it B. & H., 
 agents for the ship's owners, assuming to act for 
 the benefit of all concerned, agreed with a 
 company of wreckers to save and deliver at 
 port of destination. New York, as much of 
 the property as could be saved, for which they 
 were to receive sixty per cent of the net pro- 
 ceeds, to be ascertained by sale at auction or 
 appraisement Some of the goods insured 
 were taken by the wreckers from the ship, sent 
 to New York and sold for $1,100, over auc- 
 
 753 
 
1507 
 
 WARRANTED FREE FROM AVERAGE. 
 
 1508 
 
 Of cargo. 
 
 tioneer's charges. There was evidence tend- 
 ing to show that insurers procured persons to 
 collect the grains of coffee, bag and send them 
 to New York ; but the jury found it was a con- 
 trivance of insurers to change a total into a 
 partial loss. RM, the conceded facts and 
 the abandonment created in law a total loss ; 
 that the rescue of a portion of the goods in- 
 sured, with whatever motive it was done, 
 could not undo what the law had fixed before 
 any goods were rescued. Wallerstein v. Colum- 
 bian Ins. Co., 44: N. T., 304, reversing s. c, 
 3 Rob., 528. 
 
 33. On a cargo of ice. Stipulated: "In- 
 surers shall not be liable for ice melting in 
 consequence of putting into port. She com- 
 menced leaking, put into a tropical port to ex- 
 amine and repair, which required the cargo to 
 be unloaded. Seld, the insurer was liable for 
 the loss occasioned by the melting. Tudor v. 
 New England Mutual Marine Ins. Co~, 12 
 Gush., 554. 
 
 34. Stipulated : " Not liable for any partial 
 loss on certain goods enumerated," and then 
 followed these words : " Partial loss on sheet 
 iron, iron wire, brazier's rods, iron hoops and 
 tin plates excepted." The ship was wrecked 
 and goods above mentioned were damaged by 
 sea water. They were sent to Liverpool and 
 sold, less than half their value being realized 
 after deducting expenses. Insured had made a 
 seasonable abandonment Held, the expenses 
 of saving the property and transporting it to a 
 place of sale were a necessary diminution of 
 the value; if the goods were, by one of the 
 perils insured against, placed in a situation 
 which conferred the right to abandon, and an 
 abandonment was made, then the loss was not 
 within the exception, because insurer was lia- 
 ble for a constructive total loss. Kettdl v. Alli- 
 ance Ins. Co., 10 Gray, 144. 
 
 35. " Not liable for loss on salt, grain, fish, 
 fruit, hides, skins, or other goods that are 
 esteemed perishable, unless it amount to seven 
 per cent, of the value of such articles, and 
 happen by stranding." Held, insurers were 
 liable for a total loss of any one kind of the ar- 
 ticles mentioned, if it was of no value when it 
 arrived at the port of destination, provided the 
 injury was caused by a peril insured against, 
 for where the articles are specifically named, 
 the exception must be applied to each article 
 separately, Silloway v. Neptune Ins. Co., 13 
 Gray, 73. 
 
 754 
 
 36. On merchandise. Warranted free of 
 particular average. She was condemned and 
 the cargo transhipped into two vessels, one of 
 which was wrecked and totally lost with all 
 the cargo, but the other arrived safely. Held, 
 insurers were liable for the cargo totally lost, 
 because after the transhipment the cargoes of 
 the two ships became subject to the different 
 perils on separate voyages. Pierce v. Colum- 
 bian Ins. Co., 14 Allen, 320. 
 
 37. " On hides, free from partial loss," from 
 Mobile to New York. She was wrecked at 
 the Bahamas February 27th. They were sub- 
 merged till March 6th. About one-third were 
 saved by wreckers in a condition of incipient 
 putrefaction. They were sold there at auction 
 by the wreckers, for the benefit of all con- 
 cerned, and yielded, net proceeds, $39.34. 
 Ten days afterwards the master arrived at 
 Nassau and made protest, which, with notice 
 of abandonment, were forwarded to insurers 
 July 12th. Held, a total loss. Poole v. Protec- 
 tion Ins. Co., 14 Conn., 47. 
 
 38. She encountered severe gales, was much 
 damaged in them, and was obliged to put into 
 Rio, where she was surveyed and condenmed 
 as not worth repairing, and recommended to 
 be sold. The cargo, consisting of fruits, fish, 
 oysters, and many other perishable articles, 
 was much deteriorated, and, upon survey, 
 recommended to be sold. No shipment, either 
 in whole or in part, could have been made to 
 the port of destination, Portland, Oregon. 
 Held, a case of constructive total loss, notwith- 
 standing the cargo was composed of memoran- 
 dum articles, warranted free from average, 
 except general, etc., for there was a loss of the 
 voyage by sea perils. Delaware Ins. Co. e. 
 Winter, 38 Penn. St., 176. 
 
 39. "Warranted not liable for any partial 
 loss of goods esteemed to be perishable in 
 their own nature." The cargo was potatoes, 
 perishable in their own nature, and she was 
 bound from Augusta to Baltimore; but she 
 encountered very heavy weather, leaked badly, 
 the deck load was swept away, and she was 
 driven to Key West, where she arrived after 
 being thirty-nine days out. The day after her 
 arrival, the cargo was sold at auction for $193; 
 about twenty bushels of the potatoes were 
 picked off the top and put on the wharf, and 
 sold by the purchasers; but most, if not all, 
 of them were returned and thrown into the 
 dock being unfit for use. Those that remained 
 
1509 
 
 "WAREANTED FREE FROM AVERAGE. 
 
 1510 
 
 Of cargo. 
 
 in the hold were thrown overboard. Her 
 planks on the hows were split, so that she had 
 to remain there two weeks to repair. Held, 
 the plaintiff was entitled to recover for a 
 total loss of cargo and freight; for although 
 the rule is well settled that so long as the 
 goods have not lost their original character, 
 but remain in specie, and are in that condition 
 capable of being shipped to the destined port, 
 there cannot be a total loss, whatever the ex- 
 tent of damage, but still the rule contemplates 
 the arrival of the goods, or some part of them, 
 in specie in the ship at the port of destination, 
 or that they are capable of being forwarded 
 to that port in specie; the cargo in question 
 could not have been carried in specie to the 
 port of destination by any means, therefore, 
 there was a total loss of it Williams o. JTen- 
 tiOee 3fut. Int.Go., 31 Me., 455. 
 
 40. On cargo, free from average under five 
 per cent She commenced discharging into 
 boats, and had discharged about $40,000 value, 
 her whole cargo being abont $58,000, leaving 
 on board abont $18,000 of cargo, a part of 
 which was damaged to the amount of $1,300. 
 Held, the limitation did not apply to cargo 
 landed, upon which the risk had ceased. Mary- 
 land Im. Co. V. Bogles, 9 G. & J., 337. 
 
 41. On cargo, not liable (except in cases of 
 general average) for any loss to certain prop- 
 erty specified, unless it amounts to twenty per 
 cent of the aggregate value, nor for loss on 
 flax, unless it amounts to ten per cent of the 
 whole value at risk, exclusive of all charges 
 and expenses incurred for the purpose of ascer- 
 taining and proving the loss. Edd, the cost 
 of rescuing the property and restoring it to its 
 former condition, loading and unloading, 
 must be added to the actual damage, and if 
 these amount to ten per cent of the whole 
 value insured, the insurers were liable; for 
 the words " loss or damage " are not limited 
 to sea damages, but embrace all charges fixed 
 upon the property the consequence of peril. 
 Haa o. RUing Sun Int. Co., 1 Disney, 308. 
 
 42. Certain specific articles were warranted 
 free from average unless general; other speci- 
 fiol articles were warranted free from average 
 under fifteen per cent, and others, also speci- 
 fied, were warranted bee of average under ten 
 per cent, and others specified, and all others 
 were warranted free of average under seven 
 and a half per cent ^eW. if the loss upon the 
 articles of the particular class was equal to 
 
 the standard or rate fixed for that class, and 
 was in any degree produced by one of the 
 perils insured against, it must be considered 
 as if it arose wholly from such peril, and must 
 be the subject of compensation ; but if it fell 
 below the standard, the loss must be attributed 
 wholly to the excepted cause, though in fact 
 it was occasioned, to some extent, by one of 
 the perils insured against Louigville Marine 
 and Fire Im. Co. v. Bland, 9 Dana, 143. 
 
 43. " On fruit warranted free from average 
 unless general." She was badly damaged 
 and cargo very much injured by sea water. She 
 could not repair in time to continue the voyage, 
 and the fruit was thrown overboard in a rotten 
 state. Held, a total loss. Byton. «. Bowerofl, 
 
 3 B. & P., 474. 
 
 44. Hides insured "free from particular 
 average unless the ship were stranded ; " ar- 
 rived at Rio on their way to Bordeaux in a 
 state of incipient putridity, and it was found 
 impossible to carry them in a saleable state to 
 the end of the voyage for which they were in- 
 sured. If it had been attempted, they would 
 have lost the character of hides before they 
 got there. Hdd, the insured was entitled to 
 recover as for a total loss without abandon- 
 ment Boux e. Salvador, 3 Bing. (N. C), 266 ; 
 33 E. C. L., 130; 7 L. J. (N. S.) Ex., 328; 4 
 Scott, 1; 2 Hodges, 209; overruling b. g, 1 
 Bing. (K. C), 586; 1 Scott, 491; 1 Hodges, 49; 
 
 4 L. J. (N. S.) C. P., 156. 
 
 45. Warranted free from average. She was 
 laden with sugar; was badly damaged in a gale, 
 and was ordered by the commander of the 
 convoy to return. She could not be repaired, 
 nor could a ship be had to carry the whole or 
 the greater part of the cargo. Held, if the 
 voyage in contemplation was lost or not 
 worth pursuing there was a total loss of cargo. 
 Manning v. NaotAam, 2 Camp., 634 n.; 3 
 Dong., 130. 
 
 46. " On master's effects valued at £100, free 
 from all average." Some of them were totally 
 lost, and others saved. Held, the articles 
 which constitute the master's effects have no 
 natural or artificial connection with each 
 other, but must of necessity be essentially dif- 
 ferent in their nature and kind, in their value, 
 in the use to be made of them, and the mode 
 in which they would be disposed of on board ; 
 hence insurers were liable for a total loss 
 of any specific thing. Dv^ c. MaeKensie, 3 
 C. B. (N. S.), 16; s. c, 3 Jur. (N. S.), 1025; 30 
 
 755 
 
1511 
 
 WARRANTED FREE FROM AVERAGE — WARRANTIES. 
 
 1512 
 
 Of the effect of separate Taloations — Of construction. 
 
 L. J. C. P., 313; WilHnson o. Hyde, 3 C. B. 
 (N. S.), 30; s. c, 4 Jut. (N. S.), 483; 27 L. J. 
 C. P., 116. 
 
 47. " On ship and cargo warranted free 
 from all average or claim arising from jet- 
 tison or leakage, unless consequent upon 
 stranding, sinking or fire." She encountered 
 severe weather, sprung a leak, and was com- 
 pelled to put into port, where she was found 
 unfit to be repaired ; and ship and cargo were 
 sold. MM, the warranty did not apply, for 
 the loss was not caused by jettison or leakage. 
 Gcurr «. Boyai Exchange Ass. Co., 5 B. & S., 
 438; s. c, 10 Jur. (N. S.), 816; 83 L. J. Q. B., 
 63; 10 L. T. (N. S.), 365; 13 W. R., 127. 
 
 YI. Of the effect of sepabate valtt- 
 
 ATIONS. 
 
 1. On a specified quantity of sugars, mace 
 and logwood, each article separately and dis- 
 tinctly valued. The sugars alone were dam- 
 aged beyond a moiety of their value. Held, in- 
 sured was entitled to recover for a total loss 
 of all the sugars. Deidericks v. Commercial 
 Ins. Co., 10 Johns., 234. 
 
 2. $5,300 on 104 bales cotton, valued at $50 
 a bale. Stipulated : " No lessor average shall 
 in any case be paid under five per cent., 
 unless general." Held, not a separate insurance 
 upon each bale; that no particlar average 
 could be recovered unless the loss amounted 
 to five per cent, on the whole value. Newlin 
 t). Insurance Company of North, America, 20 
 Penn. St., 312; b. c, 5 Penn. L. J., 116. 
 
 3. " On rice, on ship or ships to be de- 
 clared warranted free from average, unless 
 general or the ship be stranded." Insured de- 
 clared and affixed a valuation, viz. : 8s. 3d. per 
 bag. HeUd, not a separate insurance on each 
 bag, and that insurers were not liable for a 
 partial loss. EntwisU v. Ellis, 2 H. & N., 549 ; 
 27 L. J. Ex., 105. 
 
 4. On steamer. The hull and machinery 
 were separately valued. Stipulated : " Average 
 payable on the whole, or on each, as if sepa- 
 rately insured; warranted free from particular 
 average under three per cent" Hdd, equiv- 
 alent to two policies, one upon the hull and 
 the other upon the machinery; that an ex- 
 pense of £55 5s. lOd. incurred for saving both 
 from total loss by fire should be apportioned 
 against each subject separately. But if these 
 added together did not bring the claim up to 
 
 756 
 
 the amount limited, insurers were not liable. 
 Oppenheim v. Pry, 3 B. & 8., 875 ; 11 W. R, 725 ; 
 8L.T.(N.S.),385; affirmed, 5 B.& S., 348; 33 
 L. J. Q. B., 267 ; 12 W. R., 831 ; 10 L. T. (N. S.), 
 539. 
 
 YII. Of CONSTETTCnON. 
 
 1. " On a cargo of wheat, for one month. 
 Permission to tow her from place to place in 
 New York harbor; loss by theft, robbery, ice 
 or barratry, excepted." She was towed from 
 Jersey City to pier 36, East River, and while 
 in the act of being made fast, was struck by 
 ice and sunk. Held, a loss within the excep- 
 tion. DoiBt o. Howard Ins. Co., 5 Rob. (N. Y.), 
 473. 
 
 2. On cargo. Stipulated: " Not liable for 
 leakage of molasses, unless occasioned by 
 stranding or collision." Memoranda in the 
 margin as follows: " On molasses; if by shift- 
 ing of cargo, owing to stress of weather, any 
 casks become stove or broken, and the staves 
 started by each other so as to lose their entire 
 contents, or the same amount to fifteen per 
 cent, on the quantity laden, being five per 
 cent, over ordinary leakage, the said excess of 
 five per cent or over on the quantity shipped 
 to be paid for by the company; but this com- 
 pany not liable for leakage arising from causes 
 other than as above mentioned." Held, not 
 liable for any loss by leakage, unless it was 
 caused by stranding; nor for any loss by shift- 
 ing of the cargo, unless it amounted to fifteen 
 per cent, of the whole quantity laden. Mc- 
 Laughlin v. Atlantic Ins. Co., 57 Me., 170. 
 
 3. At the foot of the policy insurer wrote: 
 " Mules on or under deck, against stranding 
 or a total loss." Held, insurers were responsi- 
 ble for the mules that perished before the port 
 of destination was reached. Brooke «. Louisi- 
 ana State Ins. Co., 16 Martin (La.), 640; s. c, 
 id., 681. B. c. overruled, and it was held, there 
 must be a total loss of all the mnles before the 
 plaintiff could recover. 17 id., 530. 
 
 WARRANTIES. 
 
 (See SzAWORTEiKEas ; Sicsmss akd Disease ; Title.) 
 
 I. What are. 
 
 (a) Cf tAe armament of ship. 
 
 (b) master ond crew. 
 
1513 
 
 WAERAOTIES. 
 
 1514 
 
 What aie. 
 
 I. What ark — (eon.). 
 
 (c) Of the trade and employment of 
 
 ship. 
 
 (d) tuitional character of «A»p. 
 
 (e) use and oceupation of the 
 
 premises. 
 
 (f) svpplif of mater, force 
 
 pwnps and watchmeiu 
 
 (g) eotistmetion of buildings. 
 II. What ASE NOT. 
 
 (a) Of the ship. 
 
 (b) /iame of tiie ship. 
 
 (c) troule and emptoymeKt of 
 
 the ship. 
 
 (d) cargo. 
 
 (e) use and oceupation of the 
 
 premises. 
 
 (f) Of keying books of accounts. 
 
 (g) Of the voeation, calling or profes- 
 
 sion. 
 
 (h) Of volunteer matter in the appli- 
 cation. 
 
 (i ) €f the construction of the build- 
 ing. 
 in. What satisfies the ■warrantt. 
 
 rV". DOES KOT SATISFY. 
 
 V. Genekaixt. 
 
 I. What aee. 
 
 (a) Of the armaTneni of the ship. 
 
 1. " Sailed from London with fourteen six- 
 pounders, swifels, small arms, and fifty bands 
 or upwards," were written in the margin of 
 the iwlicy. Rdd, a warranty. De Hahn «. 
 Hartley, 1 Term, 3i3 ; affirmed, 2 id., 186. 
 
 (h) €f the master and crew. 
 
 2. Stipulated: "The vessel shall be com- 
 manded by a captain holding a certificate from 
 the American Shipmasters Association." The 
 master in command at the time of the loss had 
 a certificate from the association, dated about 
 two years prior to the loss, subject to revoca- 
 tion by notice or otherwise; it required the 
 holder to present it at the association's office 
 for indorsement at or before the expiration of 
 one year from its date, or if on a voyage, then 
 on return to Kew Tork. It had never been 
 presented for indorsement Hdd, it was a 
 valid, subsisting certificate. McLoon v. Com- 
 mereial MuL Ins. Co-, 100 Mass., 472. 
 
 3. Stipulated: "She shall be completely 
 provided with master, officers and crew." She 
 was placed temporarily in the charge of work- 
 men for the purpose of repairs. HM, no 
 breach of the stipulation. St. Louis Ins. Co. 
 e. Glasgow, 8 Mo^ 713. 
 
 (e) Cf the trade and employment of 
 ship. 
 
 4. Time policy on vessel; stipulated :" Said 
 vessel not allowed to cany grain in balk 
 across the Atlantic." She was bound from 
 New York to Ballisdore with a cargo of grain 
 in bulk, and, while entering the" harbor, 
 grounded on the bar and received injuries. 
 ffeld, the insurers were not liable. Sawyer c. 
 Coasters Mnt. Ins. Co., 6 Gray, 221. 
 
 5. Time jwlicy. "On steamboat to navi- 
 gate the usual waters of the Mississippi, Ohio, 
 Illinois, Tennessee and Cumberland rivers, 
 not to be employed in the cotton trade, unless 
 consent of the company be obtained and in- 
 dorsed hereon." She commenced running as 
 a regular packet between Memphis and New 
 Orleans. On each trip she was chiefly loaded 
 with cotton. The last trip she made from 
 Memphis to New Orleans. She arrived at 
 Memphis, December 1st, having taken 3,700 
 bales of cotton on the prior trip. She con- 
 tracted to carry 15,000 sacks of corn to New 
 Orleans, from 3,000 to 6,000 sacks a trip, and 
 took on 4,600 sacks of corn December 1st; and 
 whilst waiting at Memphis, with no other 
 freight on board, was burned by fire commun- 
 icated tmm another steamboat H^d, she 
 was engaged in the cotton trade, and insurers 
 were released. Cfaty v. Phanix Ins. Co., 30 
 Mo., 56. 
 
 6. "At and from Charleston to the west- 
 ward coast of Africa, during her stay and 
 trade there, and at and from thence back to 
 Charleston. Warranted not to remain on the 
 coast longer than four months." She arrived 
 off the coast in the latitude of Senegal, August 
 1st, came to anchor, parted the chain, and was 
 obliged to stand out to sea. On the ninth, the 
 master went ashore at Senegal to procure an- 
 other anchor, but failed, and did not reach 
 Gambia until September 17th. Held, the four 
 months commenced to run from the date when 
 she first reached the coast Murden v. South 
 Carolina Ins. Co., 1 Mills' Const, 96. 
 
 757 
 
1515 
 
 WARRATIES. 
 
 1516 
 
 What are. 
 
 (d) Of the national character of shvp. 
 
 7. " Warranted an American vessel." She 
 -was American built and owned by American 
 citizens. There was some evidence that her 
 register was on board. SeXd, the evidence was 
 sufficient. Catlett v. Pacific Ina. Go., 1 Paine, 
 594. 
 
 8. Where the vessel is described as an 
 American ship, it is a warranty that she is 
 American; and if she is transferred by the 
 American owner to another person to secure 
 a debt due to a British subject, the cestui que 
 t7-uat being a subject of one of the belligerents, 
 the warranty is broken. Murray v. United 
 Ins. Co., 3 Johns. C, 168. 
 
 9. On cargo on board the Spanish brig 
 New Constitution. She was captured and 
 condemned as American property, ffeld, she 
 was warranted Spanish property ; that it was 
 not competent to prove that insurers knew 
 or were informed at the time they subscribed 
 the-policy, that she was in fact an American 
 vessel. AtJierton v. Brown. 14 Mass., 153. 
 
 1 0. On the cargo of the Swedish brig Sophia. 
 Held, she was warranted Swedish, or at least 
 documented in that character. Higgins v. Liv- 
 ermore, 14 Mass., 106; Lewin v. Thatcher, 15 id., 
 431, 
 
 11. "Warranted a Danish ship." Held, 
 she must not only be Banish built, but must 
 he circumstanced during the voyage as a 
 Danish ship ought to be. Pollard v. Bell, 8 
 Term, 434. 
 
 (e) Of the use a/nd occupation of the 
 
 prerrmes. 
 
 1 2. " On stock as rope manufacturers, their 
 own, or held by them in trust or on commis- 
 sion, contained in the brick building wiiJi tin 
 roof, occupied as a store house." Held, the 
 words " Occupied as a store house " were a 
 warranty that the buildings were occupied as 
 a store house, that they necessarily import 
 not occupied for any other purpose. Wall v. 
 East Biver Mut. Ira. Co., 1 N. T., 370; S Duer, 
 264. 
 
 13. On a factory and blacksmith shop. 
 Stipulated : " So long as the premises shall be 
 used for certain trades, without consent of in- 
 surer, it shall be of no effect." Held, no re- 
 covery could be had for a loss of either factory 
 or shop, caused by fire originating in the fac- 
 
 758 
 
 tory, while a room in the factory was used for 
 one of the trades prohibited, notwithstanding 
 the use of the room and the factory were in 
 the same class of hazards. Lee -v. Howard 
 Fire Ins. Co., 8 Gray, 583. 
 
 14. " On one undivided half of paper mill, 
 together with half of the machinery, wheels, 
 gearing, etc., the other half being owned by 
 D." A pair of mill stones were put in for 
 grinding grain, the rag cutter and duster being 
 taken out to make place for them. They were 
 driven by the same gearing and power — a 
 water wheel — as the other machinery. Held, 
 the mill was warranted a paper mill, but it 
 was a paper mill notwithstanding the intro- 
 duction of the stones. Wood t. Hwrtford fire 
 Ins. Co., 13 Conn., 533. 
 
 1 5. The words " not to be used as a coffee 
 house " are a warranty that the premises in- 
 sured shall not be used for such purpose, and 
 a breach of it, whether insured knew of it or 
 not, avoids the policy. Lawless c. Tennessee 
 Marine and Fire Ins. Co., Hunt's Mer. Mag., 
 Feb., 1853, p. 305. 
 
 16. "Warranted of the first class, with not' 
 more than two feet of pipe leading into the 
 chimney." It was in fact of the second class, 
 and had more than two feet of pipe — for 
 which class the rate of premium was higher. 
 Held, the policy was void. New Castle Fire 
 Ins Co. u. Macmorran, 3 Dow, 255. 
 
 17. Stipulated: " Heat, other than common 
 fireplace, shall not be introduced, and if any 
 alteration shall be made, or other fire heat 
 introduced, notice must be given and con- 
 sented to by indorsement upon the policy." 
 Insured erected a brick furnace or boiler, to 
 which he attached a small steam engine, to 
 ascertain whether it would be worth purchas- 
 ing. On one occasion a fire was lighted and 
 the engine set to work, but it was ascertained 
 that it was wholly useless for the purpose re- 
 quired. Some days thereafter the stock in- 
 sured was consumed by fire. Held, the insurer 
 was discharged. Glen n. Lewis, 8 Exchr., 607 ; 
 23 L. J. Ex., 228 ; 17 Jur., 842. 
 
 (f) Of the svpply of water, force 
 pum^s and watch/man. 
 
 18. " Warranted a good force pump in the 
 factory, designed expressly for protection of 
 the building in the case of fires, and at all 
 times in condition for use." During the fire 
 
1517 
 
 WARRANTIES. 
 
 1518 
 
 What are. 
 
 the pump became disabled. Seld, the war- 
 ranty could uot be construed to mean that the 
 pump should continue in a condition for use 
 after the fire broke out in the premises, for to 
 so hold would render the policy little better 
 than a nullity, because at some period during 
 the progress of the Are, a pump in the prem- 
 ises must necessarily become unfit for use; the 
 warranty was preserved if the pump was in a 
 condition for use when not rendered useless 
 by dre. Saylea v. Northwestern Ins. Co., 2 Cur- 
 tis, 610. 
 
 19. On a paper mill, founded upon an ap- 
 plication in which this question was pro- 
 pounded. Watchman: "Is one kept in the 
 mill or on the premises during the night, and 
 at all times when the mill is not in operation, 
 or when the workmen are not present?" An- 
 swer: " Tes." An execution was levied ui>oa 
 
 .the personsd property ; sheriff excluded the em- 
 ployes, took the keys, and locked up the build- 
 ing. The deputy sheriff and one of the trustees 
 remained in the mill oflSce, about two rods 
 from the mill, during the night, and up to 
 the time it was discovered on fire. Held, 
 insured warranted to keep a watchman during 
 the night and at all times when the mill was 
 not in operation, or when the workmen were 
 not present The warranty was broken, for 
 neither the deputy sheriff nor the trustee was 
 a watchman within the meaning of the policy. 
 First National BaTik v. Insurance Co. ofN. A., 
 50 N. T., 45; s. c, 5 Lans., 203. 
 
 20. " On a two story factory with attic and 
 basement, water on each floor with hose, and 
 a watchman is to be kept on the premises at 
 night" Insured gave evidence that the fac- 
 tory was provided with a steam pump in an 
 adjoining building, and a force pump in the 
 basement, connected with a water pipe through 
 the two stories to a tank in the attic, so con- 
 structed that its overflow would flood the attic 
 floor; that the hose was kept attached to coup- 
 Hngg connected with the water pipe in the first 
 and second stories, by which water could be 
 thrown upon those floors, and that by use of 
 the steam pump water could be thrown into 
 the basement Held, the court erred in dis- 
 missing the plaintiff's action. New York Belt- 
 ing Co. V. Washington Fire Ins. Co., 10 Bos., 
 
 428. 
 
 21. " On a machine shop, watchman kept on 
 premises." HeU, when there is an express 
 stipulation that a thing shall be done, but the 
 
 contract i^ silent as to the time and manner, 
 the law holds that performance must be 
 reasonable, having regard to the object and 
 purpose of the stipulation. If it was done in 
 the manner in which men of ordinary care 
 and skill in similar departments manage their 
 own affairs of like kind, this is a strong 
 ground to hold it reasonale. Crocker v. 
 People's Mutual Fire Ins. Co., 8 Cush., 79. 
 
 22. Stipulated: "Water tanks to be well 
 supplied with water at all times." By in- 
 dorsement the policy was altered to insure 
 buildings " in course of erection." Held, the 
 water tanks were to be supplied with all 
 reasonable diligence, reference being had to 
 the manner in which the construction pro- 
 gressed; that the insured were not required 
 to have them supplied with water in the same 
 manner and to the same extent they would 
 have been required had the policy been upon 
 a finished building. Gloucester Manufactur- 
 ing Co. V. Howard Fire Ins. Co., 5 Gray, 497. 
 
 23. The survey and description of the 
 property insured was made a part of the 
 policy and a warranty by the insured. The 
 survey consisted of interrogatories and 
 answers in which this question was asked: 
 " Is there a watchman in the mUl during the 
 night?" Answer: "There is a watchman 
 nights." The property was destroyed between 
 Saturday night and Sunday morning, but not 
 discovered till Sunday morning, while it was 
 yet dark, during which period no watchman 
 was in the mill. Held, the insurers were dis- 
 charged. Olendale Woolen Co. v. Protection 
 Ins. Co., 21 Conn., 19. 
 
 24. The application was made part of the 
 contract, which, in describing the premises, 
 stated : " Plenty of water upon the premises, 
 and force pumps, and well ventilated." The 
 policy warranted all the statements contained 
 in the application ; but tlie application itself 
 covenanted that all matters stated in it were a 
 just, full and true exposition in regard to the 
 condition, situation, value and risk of the 
 property, so far as the same are known to the 
 party and material to the risk. Held, the ma- 
 teriality of the statements were to be passed 
 upon by the jury; and if the statements were 
 not material, they were not warranties. Gar- 
 ceUm o. Hampden Fire Ins. Co., 50 Me., 580. 
 
 25. Stipulated: "Insured is to keep eight 
 buckets filled with water on the first floor, 
 where the machinery is run, and four in the 
 
 759 
 
1519 
 
 WARRAiTTIES. 
 
 1520 
 
 What are not. 
 
 basement by the reservoir, ready for use at all 
 times in case of flre." Held, while unavoidable 
 causes might have prevented a literal compli- 
 ance with the stipulation, still it was the duly 
 of insured to show that the required number 
 of buckets, in good and serviceable condition, 
 were at the places designated, ready for in- 
 stant use. Aurora Fire Ins. Co. v. Eddy, 49 
 111., 106. 
 
 26. Insured agreed to keep twelve pails of 
 water on each flat of the building. It was 
 not done. The loss was not caused or aflected 
 by that neglect. Hdd, he could not recover. 
 &wrrett v. Provincial Ing. Co., 30 U. C. Q. B., 
 
 (g) Of the construction of hmlMngs. 
 
 27. " On stock in trade, contained in a two 
 story frame house filled in with brick." The 
 house was not filled in with brick, ndd, the 
 policy was void. Fowler v. JEtna Fire Ins. 
 Go., 6 Cow., 673. 
 
 II. What aee not. 
 
 (a) Of the ship. 
 
 1. Policy provided insurer shall not be lia- 
 ble " For damage to or from her sheathing." 
 Meld, not a warranty that she was sheathed — 
 that it was an immaterial representation. 
 Martin v. Fishing Ins. Co., 20 Pick., 389. 
 
 (b) Of the narne of the ship. 
 
 2. On board the ship called " The Ameri- 
 can Ship President." RM, not a warranty 
 that she was an American ship ; but that she 
 was named " The American Ship President" 
 Le Mesurier e. VaugTum, 6 East, 382 ; 2 Smith, 
 492. 
 
 3. The policy was written on the "Three 
 Sisters." Held, the English name was not a 
 warranty that she was English. Olaphamv. 
 Cologan, 3 Camp., 382. 
 
 (c) Of the trade and employmertt of 
 the ship. 
 
 4. " On ice in four boats from Freeport to 
 Nashville, to be towed from Pittsburg by 
 steamboat L., or by some other good boat 
 equal to her." Held, no implied warranty 
 
 760 
 
 that the tow boat should be of sufficient ca- 
 pacity to manage and tow the ice boats. JIfer- 
 ehanis Ins'. Co. v. Algeo, 31 Penn. St., 446. 
 
 5i Time policy. " On steamboat now lying 
 in Taits' dock, Montreal, intended to navigate 
 the St. Lawrence and lakes from Hamilton to 
 Quebec, principally as a freight boat, and to 
 be laid up in the winter at a place approved 
 by this company." She never left the dock, 
 and was destroyed by fire eleven months after 
 the making of the policy. Held, insurers 
 were liable, for there was no warranty that 
 she should navigate the waters mentioned. 
 Grant v. ^tna Ins. Co., 15 Moore P. C. C, 
 516 ; 8 Jur. (N. B.), 705 ; 10 W. R, 772 ; 6 L. T. 
 (N. S.), 735. 
 
 6. The defendant read in evidence a letter 
 from the master exhibited at the time the pol- 
 icy was effected, referring to the anchorage 
 ground. A part of the letter was as follows: 
 " It is considered by the pilot here as a good 
 and safe anchorage, and well sheltered. I 
 have been out and seen the place, and consider 
 it quite safe." The court left it to the jury to 
 say whether the writer of the letter considered 
 the place a safe anchorage. Held, no misdirec 
 tion, for the words did not amount to an abso 
 lute statement of a fact. Anderson v. Paetfit 
 Fire and Marine Ins. Co., 7 L. B. C. P., 65; 
 20 W. B., 280; 26 L. T. (N. S.), 130. 
 
 (d) Of the cargo. 
 
 7. "On cargo, being 1,031 hogsheads of 
 wine." Held, not a warranty that no othei 
 goods would be taken on board. Midler o. 
 Thompson, 2 Camp., 610. 
 
 (e) Cf the use and occupation of tho 
 
 8. Occupied as a dwelling house, but to be 
 occupied hereafter as a tavern, and to be priv- 
 ileged as such. Held, not a warranty that it 
 should be occupied as a tavern. Collin v. 
 Springfield Fire Ins. Co., 1 Sunm., 434 
 
 9, The policy described the house as occu- 
 pied by a person named. Held, a warranty of 
 the fact that the person named was the occu- 
 pant at that date, but it was not a promissory 
 agreement that the person named should con- 
 tinue to occupy it, and if the house became 
 vacant, it was no breach of the warranty. 
 O'Nid V. Bujfalo Fire Ins. Co., 3 N. Y., 122. 
 
1521 
 
 WARRANTIES. 
 
 1523 
 
 What are not. 
 
 10. On his two story frame building used 
 for winding and coloring yarn, and for stor- 
 ing spun yarn. Beld, no warranty that the 
 building should continue to be thus used. 
 Stnith «. Mechanics and Traders Ins. Co., 32 
 N. Y., 399; s. c, 29 How. Pr., 384. 
 
 11. On a double frame building occupied 
 as a dwelling. It was partly occupied as a 
 grocery and for the sale of ale and liquors, 
 commonly known as the " Hibernian House." 
 There was no written application, and no de- 
 scription of the property other than that men- 
 tioned in the policy. Held, not a warranty on 
 lie part of the plaintiff that it was so occu- 
 pied. Maker v. Hibernian Ins. Co., 6 Hun. 
 (N. Y.), 353. 
 
 12. On goods insured upon an application 
 in which the insured stated : " Clerk sleeps 
 in the store." The clerk was not in the store 
 the night the Are occurred. Hdd, not a war- 
 ranty ; that it was mere matter of description 
 as to how the building was occupied at that 
 time. Frisbie v. Fayette Mitt. Ins. Co., 27 
 Penn. St, 325. 
 
 13. On building and furniture therein. 
 Held, residing in the house and insuring the 
 furniture in it, did not necessarily imply an 
 agreement that the premises should be used 
 as s dwelling house during the term, nor did 
 a removal from the house, and leaving it va^ 
 cant for eight or ten days constitute, per se, an 
 increase of hazard. Cumberland Valley Mu- 
 tual Protection Co. v. Schell, 89 Penn. St. 31. 
 
 14. The application propounded this in- 
 quiry: "The number of stoves and how 
 used?" Answer, " None." But there was a 
 stove used for a few days, in one of the rooms, 
 for drying paint. Held, no violation of the 
 contract; the interrogatory and answer had 
 reference to the habitual use of stoves. Wil- 
 liams 0. New England Mvt. Ins. Co., 31 Me., 
 219. 
 
 15. "On a four story warehouse. First 
 floor occupied by machinery used for making 
 barrels, with privilege of storing barrels on 
 the premises." Held, a warranty in prasenti 
 only. United States Fire and Marine Ins. Co. 
 V. Kimberly, 34 Md., 224. 
 
 ' 16. After describing the property insured, 
 policy proceeded : " No fire in or about said 
 building, except one under kettle securely em- 
 bedded in masonry, used for heating water, 
 and made perfectly secure against accidents." 
 Held, not a warranty that no other fires should 
 
 be in the building; it was merely a statement 
 of the then condition of the property. Schmidt 
 fl. Peoria Marine and Fire Ins. Co., 41 III., 
 295. 
 
 17. The application stated that no stoves 
 were used ; and it was made part of the policy, 
 and the truth of all statements made in it were 
 warranted. A stove was subsequently used 
 for warming. Held, not a continuing war- 
 ranty; that the subsequent use of the stove 
 was no breach of it; the questions and an- 
 swers were all in the present and not in the 
 future tense (citing Schmidt v. Peoria Marine 
 and Fire Ins. Co., 41 III., 295). Aurora Fire 
 Ins. Co. 0. Eddy, 55 111., 213. 
 
 18. In the description of the premises it 
 was stated : " Occupied for stores below, the 
 Upper portion to remain unoccupied during 
 the continuance of this policy." Held, a war- 
 ranty that the lower story was then occupied 
 for the purpose stated, and that the upper por- 
 tion should remain unoccupied ; but there was 
 no warranty that the lower portion should 
 continue to be occupied as stores. Stout v. 
 City Fire Ins. Co., 12 Iowa, 371. 
 
 19. The policy described the building as 
 the five story brick building and three story 
 brick addition, occupied as stores on the first 
 floor, the upper portion intended for a hotel, 
 and to be unoccupied during the continuance 
 of this policy. Held, it was not a warranty 
 that all the rooms on the first story were occu- 
 pied; if any of them were occupied the war- 
 ranty was satisfied. Carter v. Humboldt Fire 
 Ins. Co., 17 Iowa, 456. 
 
 20. The application was made part of the 
 policy. It described the property as " Prieg- 
 er's paper mill, one and a half stories, one 
 used for drying paper. The premises are con- 
 stantly worked ; no watch kept except the peo- 
 ple working in the mill during the night." 
 The application then provided that all the 
 statements made in it constituted a just, full 
 and true exposition of all the facts and cir- 
 cumstances in regard to the condition, situa- 
 tion, value, and risk of the property to be in- 
 sured, so far as the same are material to the 
 risk. Held, not a warranty that the premises 
 were worked at all times, for it could not be 
 presumed that they would be worked on Sun- 
 days, because that would have been an unlaw- 
 ful act ; that the language was to be understood 
 that the mill would be constantly worked du- 
 ring the usual customary working days and 
 
 761 
 
1523 
 
 WARRANTIES. 
 
 1624 
 
 What are not. 
 
 hours. Prieger n. Exchange Mut. Ins. Co., 6 
 Wis., 89. 
 
 21. lathe application, the following ques- 
 tions and answers were set forth: "During 
 wliat hours are the premises worked?" Ans. 
 " From 6 A. M. to 7 P. M., and sometimes from 
 7 P. M. to 6 A. M." " Have you a night watch- 
 man always on duty ? " Ans. " We have." It 
 was also stated: "The building is not left 
 alone at any time after the watchman goes off 
 duty in the morning till his return in the 
 evening; that there is a good force pump 
 on the premises for putting out fire; that it Is 
 at all times in condition for immediate use, 
 and tried every two or three days to ascertain 
 its condition." Held, not a warranty that in- 
 sured should continue to use the premises 
 during the life of the policy in the precise 
 manner indicated; that it was proper to prove 
 a custom not to operate mills of this class in 
 tlie winter season ; and that such custom was 
 ■well known to the insurer's agent who ac- 
 cepted the risk ; hence the questions and an- 
 swers related only to the time or season of the 
 j-ear when that mill or those of a similar 
 character were operated. May ■b. Buckeye 
 Mut. Ins. Go., 25 Wis., 291. 
 
 22. Policy recited : "No fire is kept, and 
 no hazardous goods are deposited." The loss 
 was caused by burning a tar barrel in the 
 premises while making repairs. Seld, insurer 
 was liable, for the fact recited meant habitual 
 use of fire. Ddbson v. Sotheby, 1 Moo. & 
 M., 90. 
 
 23. On cotton mills, warranted brick built 
 Policy stated, warmed and worked by steam, 
 lighted by gas, and worked by day only. Plea: 
 the steam engine, upright and horizontal 
 shafts, parts of said mills were, without leave 
 of insurers, worked by night, and not by day 
 only. Replications: that the engine, upright 
 and horizontal shafts, were not part of said 
 mills, and were not, without leave of insurers, 
 worked by night, and not by day only. The 
 jury found the issues upon that plea for the 
 defendants. Motion for judgment non obstante 
 veredicto. Held, plaintiff was entitled to judg- 
 ment, notwithstanding the verdict, for the 
 plea was bad, because working a part of the 
 machinery at night was not working the mills 
 at night May all v. Mitford, 6 A. & E., 670; 
 1 N. & P., 732; W. W. & D., 310. 
 
 24. "On cotton mills, millwrights' work, 
 including standing gear, engine house adjoin- 
 
 762 
 
 ing, and the steam engine therein;" reciting: 
 Buildings are brick built and slated, warmed 
 exclusively by steam, lighted by gas, worked 
 by the steam engine above mentioned, in 
 the tenure of one firm only, and worked by 
 day only. Held, worked by day only, referred 
 to the mill, and not to any par. of the engine 
 or gear; that using the engine by night, work- 
 ing some parts of the machinery (the mill 
 itself being worked by day only) was no vio- 
 lation of the contract Whitehead v. Price, 3 C. 
 M. & R., 447; 5 Tyrw., 825; 1 Gale, 151. 
 
 25. A clause in a policy that the building 
 insured "is fitted with iron shutters and 
 doors," is not violated if the building has such 
 shutters and doors, although the fire was 
 carried through them when they were open. 
 Beott V. Quebec Fire Ass. Co., Stuart, 147. 
 
 (f) Of heejpvng hooks of acccwnta. 
 
 26. The policy provided : " The claim for 
 loss shall be sustained if required, by the 
 books of accounts and other vouchers of the 
 insured." Held, not a warranty to keep 
 books of accounts, or to be ready to exhibit 
 them when called for. Wightman t. Western 
 MaHne Fire Ins. Co., 8 Rob. (La.), 443. 
 
 (g) Of the vocation, calling or j>ro- 
 fession. 
 
 27. Stipulated: "In the event of change 
 of vocation, occupation, or business, the 
 policy shall be canceled, and the unexpired 
 premium returned, or the difference for 
 the extra hazard paid by insured and in- 
 dorsed on the policy." He was an earthen- 
 ware manufacturer at the time the policy was 
 issued, and while on a visit he went out to as- 
 sist in loading hay; the hay fork slipped 
 through his hand, struck him on the belly, 
 from which injury he died. HeW,, no change 
 of occupation. North American Life and Ac- 
 cident Ins. Co. V. Burroughs, 69 Penn. St, 43. 
 
 28. Change of occupation or employment 
 to one more hazardous was prohibited. In- 
 sured was a school teacher, and while super- 
 intending the erection of two dwellings 
 and bams for his own use, accidently fell 
 from one and was killed. HeUd, no evi- 
 dence that insured assumed any new business. 
 Btone «. United States CausuUy Ins. Co., 34 N. 
 J., 371. 
 
1523 
 
 WARRANTIES. 
 
 1526 
 
 What satisfies. 
 
 29. Policy against death by accidents. In- 
 sured was killed while performing duty as a 
 brakeman. Insurer sought to prove that 
 when he was insured he was a switchman, 
 aud that he was so represented in the applica- 
 tion. Sdd, inadmissible, for the representa- 
 tion was not a warranty that he should con- 
 tinue a switchman, or that he would not engage 
 in any different occupation. PtwiidenUal Life 
 Ins. Co. V. Fenndl, 49 111., 180. 
 
 30. Insurer's usual form of proposal re- 
 quired the name, residence, proffession or 
 occupation of the person insured to be stated. 
 The plaintiff, wrote " I. T. P., Esquire, Saltley 
 Hall, Warwickshire," and tlie policy stipu- 
 lated: " If any statement or allegation con- 
 tained in tlie proposal be untrue, or if this 
 policy has been obtained, or shall hereafter be 
 continued through any misrepresentation, con- 
 cealment or untrue averment whatsoever, then 
 this policy shall be void." Insured lived at 
 Saltley Hall, but he kept an ironmonger's 
 shop at D., in the same shire. Hel^l, no de- 
 fense to the action. Perrins v. Marine and 
 General Travelers Lis. Co., 2 El. & El., 317; 
 s. &, 6 Jut. (N. S.), 69 ; 29 L. J. Q. B., 17 ; 1 L. 
 T. (N. S.), 27 ; s. c. afBrmed, 6 Jur. (N. S.), 627 ; 
 3 El. & El., 324; 29 L. J. Q. B., 242; 8 W. R, 
 563. 
 
 (h) Of volunteer matter in the appli- 
 cation. 
 
 31. Contract required applications to be 
 made in writing, to describe the premises and 
 their uses ; and it provided, that a false descrip- 
 tion should avoid the policy; that the survey 
 and description should be a warranty of the 
 iosured. Held, facts stated in the application 
 not required by the conditions of the policy, 
 nor descriptive of the jiremises, were not war- 
 ranties, but representations. Hartford Protec- 
 tion Ins. Co. T. Harmer, 2 Oliio St., 453; see 
 BtuU e. Connecticut Mutval Life Ins. Co., N. 
 D. of Ohio, 8 Clii. Leg. News, 203. . 
 
 32. "Against loss occasioned by tlie want 
 of integrity of W." The application stated 
 that the accounts of W. would be examined 
 by the finance committee every fortnight. 
 ffeld, it was not a warranty that they should 
 be so examined ; it was a mere representation 
 of the plaintiff's intention; hence plaintiff 
 was entitled to recover, although the loss was 
 occasioned by neglecting to examine the 
 
 accounts in the manner specified. Benhtm v. 
 United Guarantee and Life Asa. Co., 7 Exchr., 
 744; 16 Jur.. 691 ; 21 L. J. Ex., 317. 
 
 (i) Of the construction of the building. 
 
 33. The survey, made part of the policy, 
 contained this question: "Are the outside 
 walls brick or stone ? " Answer. "Brick." To 
 this question there was this note: If the 
 building be wood, omit replies to these ques- 
 tions. Insurer alleged as a breach of the war- 
 ranty that the outside walls were not all brick. 
 jffetd, the breach was not well alleged, for 
 there was no breach, though the walls were 
 not all brick. Cox v. jSltna Ins. Co., 29 Ind., 
 586. 
 
 III. What satisfies. 
 
 1. Application stipulated: " Ashes are kept 
 at all times in brick." Seid, satisfied, if they 
 were kept in some mode equally safe. Under- 
 hill D. Agawam Mutual Fire Ins. Co., 6 Cush., 
 440. 
 
 2. The applicant stated that the facilities 
 for extinguishing fires were a force pump and 
 an abundance of water. Seld, not a promise 
 that the pump should be kept at all times fit 
 for use. It was sufficient if, at the date of the 
 application, the pump was in good order. CHI- 
 liat o. Pawtucket Mutual Fire Ins. Co., 8 R. I., 
 283. 
 
 3. Stipulated that a force pump should be 
 kept in the building. There was one, but 
 there was no iose for or attached to it Held, 
 the stipulation was not to be extended by im- 
 plication, hence the stipulation was satisfied. 
 Peoria Marine and Fire Ins. Co. v. Lewis, 18 
 111., 553. 
 
 4. The policy prohibited smoking in the 
 mill. Held, the insured only undertook that 
 he would not smoke, himself, or allow others 
 to do so if, by reasonable caution, he could 
 prevent it (citing Daniel v. Hudson Fire Ins. 
 Co., 12 Cush., 436). Insurance Co. of North 
 America c. McDonell, 50 111., 120. 
 
 5. Warranted that she had twenty guns. 
 Sixty men were required to man them, but she 
 had only twenty-five. Held, the warranty was 
 satisfied. Hide v. Bruce, 3 Doug., 213. 
 
 6. " Warranted Danish." Proof that she 
 carried the Danish colors, and that the master 
 addressed himself to the Danish consul and 
 
 763 
 
1627 
 
 WARRANTIES. 
 
 1528 
 
 Wliat does not satisfy — Generally. 
 
 conducted himself as the master of a Danish 
 ship would have done, was held sufficient to 
 satisfy the warranty. Arcangel v. Thompson, 
 2 Camp., 620. 
 
 lY. What does xot satisfy. 
 
 1. Policy stated : " The vessel sails under a 
 sea letter, without register, warranted Amer- 
 ican." Held, parol evidence to explain the 
 term "sea letter" was inadmissible ; held, also, 
 that sailing with a certificate of ownership 
 did not satisty the warranty. Sleght v. Mhine- 
 lander, 1 Johns., 193; overruled, s. c, 2 id., 
 532. 
 
 2. A boy hired to make the fires threw 
 ashes into a pile a rod or more from the build- 
 ing, su'bsequently a barrel was placed in the 
 wood house adjoining, and ashes were put 
 into it; there were no vaults of brick or 
 stone provided for depositing ashes, contrary 
 to the stipulations of the policy and applica- 
 tion. The fire took place in the wood house. 
 Held, a direct violation of the terms of the 
 contract, which released the insurers. City 
 of Worcester v. Worcester Mutual Fire Iris. 
 Co., 9 Gray, 37. 
 
 3. " Warranted to have four passes from the 
 kings of France, England, Poland, and the 
 states of Holland; and the goods to be of a 
 Polish subject on board the ship called the 
 iCity of Warsaw. She had passes, but they 
 were not for any ship of her name; and were 
 for goods of a subject of the king of Poland; 
 but the goods on board were the property of 
 the subjects of Holland. Held, the warranty 
 was not satisfied. Anon., Skin., 404. 
 
 4. Warranted to carry fifty hands or up- 
 wards. She sailed from Liverpool on the 
 13lh with forty-six hands, reached Beaumarais 
 in six hours with a Liverpool pilot, took 
 on six hands more, and sailed for destination. 
 Held, the warranty was not satisfied. Be- 
 Hahn v. Hartley, 1 Term, 343 ; afQrmed, 2 id., 
 186. 
 
 • 
 
 Y. Generally. 
 
 1. No departure in the smallest particular 
 can be allowed on any matter warranted, and 
 whether the thing warranted be material or 
 immaterial is of no consequence. NicoU v. 
 American Ins. Co., 3 W. «& M., 529. 
 
 2. A warranty must clearly appear, either 
 764 
 
 by express terms, or it must necessarily result 
 from the nature of the contract. It will never 
 be created by construction. Jefferson Ins. Co. 
 V. CotheaZ, 7 Wend., 72. 
 
 3. The person insured referred as usual to 
 anotlier. Insurer's agent called upon the 
 latter, and wrote certain answers, as he 
 gave them, to certain questions propounded. 
 Held, the answers were not warranties. Bawl 
 v. American Mutual Life Ins. Co., 27 N. Y., 282 ; 
 S.C., 36Barb., 357. 
 
 4. A fact, quality or circumstance specified, 
 sometimes relates to the risk, or is sometimes 
 for another purpose ; as, to identify the thing 
 insured. This must be settled before the rule 
 that governs in cases of warranty can be ap- 
 plied. But if it relates to the risk, it is a war- 
 ranty, and nothing can be substituted for it, 
 however advantageous to the insurer; for a 
 man cannot be compelled to adopt a better 
 bargain than his own. Wood v. Hartford Fire 
 Ins. Co., 13 Conn., 533. 
 
 5. The distinction between a representation 
 and a warranty is this : The former is a part of 
 the proceedings preliminary to the contract; 
 the latter is a part of the completed contract. 
 Deieees b. Manhattan Ins. Co., 34 N. J., 244. 
 
 6. The distinction between warranties and 
 representations is that the latter must be true, 
 so far as they are material to the risk; they 
 are material when the truth would have in- 
 duced insurer to have refused the risk, or to 
 have charged a higher premium. A warranty 
 must be true in every respect, and no question 
 can arise as to its materiality. Mutual Benefit 
 Life Ins. Co. v. Miller, 89 Ind., 475. 
 
 7. Statements not on the face of the policy 
 are not warranties unless they are referred to 
 by the policy, and it clearly appears that the 
 parties intended them to form part of it; a 
 warranty cannot be created or extended by 
 construction. Mutual Benefit Life Ins. Co. «. 
 Robertson, 59 111., 123. 
 
 8. The general rule is well settled, that an 
 express warranty must appear on the face of a 
 policy. Instructions for insurance, unless in- 
 serted in the policy, do not amount to a war- 
 ranty. So a memorandum upon paper attached 
 to the policy by a wafer, or rolled up in it, 
 when the policy was shown to the underwriter 
 and executed by him, has been held not to be 
 a warranty, but a representation merely, and 
 in the absence of a stipulation, giving the 
 effect of a warranty to a statement of facts con- 
 
1529 
 
 WATCHMAN — WIFE'S POLICY. 
 
 1530 
 
 Of the effect of her husband's surviving — Of the effect of her husband's insolvency. 
 
 tained in a separate paper, the principle 
 which converts everything in the policy to a 
 warranty does not apply. Kentucky and Lou- 
 isvilU Ins. Go. v. 8out?uird, 8 B. Mon., 634. 
 
 9. If facts are stated merely by way of re- 
 cital or description, not material to the risk, 
 the matter recited is not a warranty. SehuUz 
 e. JHerehanU Im. Co., 57 Mo., 331. 
 
 WATCHMAN. 
 
 (See CoNSTBtrcTioN ; W^bkahths.) 
 
 WIFE'S POLICY. 
 
 I. Of the effect of hek husbahd's sub- 
 
 V1VLN6. 
 
 II. Of the effect of hek husband's in- 
 
 SOLVBNCY. 
 
 III. When husbahd's peksonai bepbkseh- 
 
 TATTVKS HAVE NO BIGHTS TO. 
 
 IV. Of the BIGHTS OF THE WIFE'S CHILDKEN. 
 v. PBOOF THE WIFE MUST GIVE TO 
 
 SUSTAIN HEB ACTION. 
 VI. WIFE'S ASSIGNMENT. 
 
 (a) WJieniialid. 
 
 (b) invalid. 
 
 I. Of the effect of keb husbahd's 
 
 SXTEVrVTNG. 
 
 1. A policy was issued upon Uie life of H., 
 the hnsband of A, payable to her or her legal 
 representatives. Three years thereafter, A. 
 died, and H. continued to pay the premiums. 
 He remarried four years after, and then in- 
 surer made a memorandum on the policy that 
 it should stand for the benefit of his then wife, 
 and others named in the memorandum. H. 
 continued to pay the premiums until his death, 
 which occurred fifteen years after the policy 
 was first issued. Held, the husband was not 
 bound to continue the policy for the benefit of 
 the representatives of the deceased wife; that 
 with the consent of insurer, he could change 
 the beneficiaries, and after the change was 
 made, every payment was in the interest of 
 the widow. Oambt v. Covenant Mutual Life 
 Ins. Co., 50 Mo., 44. 
 
 8. The husband procured a policy on his 
 life for the benefit of his wife, and paid the 
 premiums. He survived her about twelve 
 hours, leaving two children by a former wife, 
 but no issue by his last. Before he knew 
 of the death of his wife he made a nunmipative 
 will, directing the avails of the policy to be 
 divided between his children and his step- 
 daughter in equal parts, provided " my wife 
 does not live." Held, he had the right to dis- 
 pose of it. Kerman e. Howard, 23 Wis., 108. 
 
 3. Policy on the life of A. in favor of his 
 then wife, who died two years after marriage, 
 leaving a child who died an infant. A. paid 
 the premium for thirteen years. Held, a con- 
 tract with A., and the legal right to enforce it 
 devolved upon his personal representatives. 
 Mutual Benefit lAJe Ins. Co. v. Atwood, 24 Orat, 
 497. 
 
 II. Of the effect of hee husband's 
 
 INSOLVENCY. 
 
 1. On the life of the husband, upon the ap- 
 plication of the wife, payable to her for her 
 sole use, and in case of her death before her 
 husband, to be paid to her children. She 
 died, leaving children and husband. After 
 her death he surrendered the policy, and took 
 another for the same amount in his own 
 name, beai'ing the same date and for the 
 same premium as that surrendered. He 
 paid one premium, and died insolvent. Held, 
 the substituted policy was the property of 
 the children, and that the creditors of the hus- 
 band bad no right to the avails of it. Chopin 
 «. Fellowes, 36 Conn., 132. 
 
 2. An insolvent debtor, with his own means, 
 procured insurance on his life for the benefit 
 of his wife. The evidence satisfied the court 
 that the insolvent husband had determined to 
 provide for his wife and to wholly disregard 
 the claims of his creditors. Held, th^ money 
 received by the wife upon the policy must be 
 accounted for as assets of the estate. Stokes v. 
 CcsSfey, 8 Bush., 533. 
 
 3. Policy upon the life of the husband in 
 favor of his wife and children. Held, the 
 death of the husband fixed the liability of 
 insurers, and the widow and children were 
 entitled to the avails of the policy, absolutely, 
 in their own right. Succession of Kugler, 33 
 La. An., 455. 
 
 4. Policy was efiected on a life in the name 
 
 765 
 
1531 
 
 WIFE'S POLICY. 
 
 1532 
 
 Miscellaneous. 
 
 of certain trustees, -who were to hold it for the 
 benefit of the insured until his marriage, and 
 upou the solemnization thereof, they were to 
 hold it for the benefit of the wife and the 
 children of the marriage. The husband be- 
 came bankrupt and died, when a large bonus 
 had accrued upon the policy. HM, the hus- 
 band's assignees in bankruptcy were not enti- 
 tled to any of the benefits of the policy; that 
 they all belonged to the beneficiaries men- 
 tioned in the deed of trust. Pwrkeg v. Bott, 9 
 Sim., 388; 8 L. J. (N. S.) Ch., 14. 
 
 5. The husband procured a policy on his 
 life in favor of liis wife, payable to her, her 
 heirs, executors or assigns. He paid the 
 premiums from his own funds. A few weeks 
 before his death he became bankrupt, and his 
 estate was sequestrated. Held, the policy was 
 a provision for the wife, and not a donation, 
 hence the creditors of the husband had no 
 right against it. Reversing 8. c, 22 C. C. S., 
 1211. Galloway v. Craig, 23 id., 12. 
 
 III. When husband's personal eep- 
 
 EESENTATIVES HAVE NO EIGHTS. 
 
 1. Policy upon the life of A., payable to 
 himself, his heirs, executors, etc. It was as- 
 signed by A. to D., and became forfeited for 
 nonpayment of premium. D. afterwards as- 
 signed it to S., who assigned it to the defend- 
 ant, to which insurers assented. While 
 it ceased to be in force, A. consented that it 
 might be revived by his wife's brother, for her 
 benefit, ffeld, A.'s administrator was not en- 
 titled to the avails of the policy. Winchester 
 V. Stebbins, 16 Gray, 53. 
 
 2. Certain policies, issued in favor of the 
 wife and child of the deceased, and certain 
 others upon the same life, had been transferred 
 for the benefit of the wife and child, and it was 
 Tield, they should not be inventoried as part of 
 the estate of the deceased, for if the policy 
 issues to the wife, or is properly transferred to 
 her, the amount stipulated therein belongs to 
 her, when the event insured against happens. 
 Succession of Searing, 26 La. An., 826. 
 
 3. The husband effected a policy on the 
 life of his wife, payable, three months after 
 her death, to her heirs, executors, successors 
 and assigns. Held, the money which fell due 
 under it was not eommunio bonorum. It was 
 the property of her heirs. Smith v. Kerr, 7 
 C. C. S. (3d sen), 868 ; 41 Scot. Jur. 460. 
 
 766 
 
 lY. Of the eights of wife's childeen. 
 
 1. Policy on the life of the husband for the 
 benefit of the wife, payable to her, her execu- 
 tors, administrators or assigns, and in case of 
 her death before the death of her husband, 
 payable to her children or to their guardian, if 
 under aige. It was assigned by her with the 
 husband's consent and with consent of insurers, 
 to W. She died February 27, 1867, leaving 
 one child, and the insured died sixteen days 
 thereafter. Held, the assignment could not 
 defeat the rights of the child, for at most, it 
 carried nothing but the rights of the wife, 
 which died with her; and then by the express 
 terms of the policy, it became payable to the 
 guardian of the child. Knickerbocker Life 
 Ins. Co. V. Weitz, 99 Mass., 157. 
 
 2. Policy to the wife upon the life of her 
 husband, payable to herself, if living, if not 
 to their children. She died before her hus- 
 band, and one of her children died during his 
 father's lifetime, leaving lawful issue. Held, 
 the child at the time of his decease had an in- 
 terest in the policy, transmissible by descent to 
 his child, who was entitled to that portion of 
 the fund which his father would have taken 
 if living. Conn. S. C. Continental Life Ins. 
 Co. v. Palmer, 5 Ins. L. J., 805. 
 
 V. Of the peoof wife must give 
 TO sustain hee action. 
 
 Policy to a woman, the alleged wife of the 
 person whose life was insured. Held, the 
 plaintiff must prove that she was the lawful 
 wife of the deceased at the time the policy 
 was made; if she was not his lawful wife, the 
 policy was void. Holabird v. Ins. Co., 2 DU. 
 Cir. Ct., 166 n. 
 
 VI. Of wife's assignment. 
 
 (a) WTien valid. 
 
 1. A. insured the life of her husband. They 
 joined in an assignment to B. in trust for her 
 husband's children. Held, she could not 
 challenge the right of the trustee to the fund. 
 Bond V. Insurance Co., 9 Phila., 149. 
 
 2. Policy to a wife for her benefit, payable 
 to her, was assigned by her husband and her- 
 self to secure an indebtedness due by the hus- 
 
1533 
 
 WIFE'S POLICY. 
 
 1534 
 
 Of wife's assigmnent. 
 
 band to the assignee. HeM, the assignment 
 was valid, notwithstanding that the policy 
 was not payable to her assigns. De Range v. 
 SUiott, 23 N. J. Eq., 486 ; Archibald o. Mutual 
 Life Ins. Co., 38 Wis., 542. 
 
 3. On the life of the husband for the sole 
 and separate use of the wife, who joined with 
 her husband in an assignment to secure pay- 
 ment of a debt due by a firm of which he 
 was a member. Sdd, she had the right to as- 
 sign it (citing Pomeroy e. Manhattan Life Ins. 
 Co., 40 111., 398). Bnierick v. Coaldey, 35 Md., 
 188. 
 
 4. Policy upon the life of her husband to 
 the wife, who assigned $600 therein to H. 
 Edd, it was not assignable at law or under the 
 statute so as to pass a right at law to the as- 
 signee; but that as it was the sole and sepa- 
 rate property of the wife, she had power to 
 pledge it as security for the debt of her hus- 
 band, and she was bound in equity by her as- 
 signment Pomeroy u. Manhattan Life Ins. 
 Co., 40 111., 398 ; Norwood €. Guerdon, 60 id.,253 
 
 5. Policy for the sole and separate use of 
 the wife. The annual premium, $343.10, was 
 paid by the husband, who, in his life time, 
 borrowed money of S., and assigned the policy 
 as collateral security, the wife joining in the 
 assignment Held, the policy was not within 
 the protection of the statutes, because the pre- 
 mium exceeded $300. It was therefore assign- 
 able by the wife, and the assignee was entitled 
 to be protected. Charter Oak Life Int. Co. v. 
 Brant, 47 Mo., 419 ; Baker v. Young, id., 453. 
 
 6. The wife, entitled to separate income, 
 agreed to aid her husband in obtaining a loan 
 from an insurance company. A policy was 
 issued upon, their joint lives, payable to the 
 survivor of either, the premiums to be paid 
 by the husband. The wife assigned her sep- 
 arate income, and the husband assigned the 
 policy to secure money advanced. The 
 wife covenanted that the husband should pay 
 the premiums, and the husband declared that 
 if he failed to do so, the mortgagees might 
 pay them out of the income. Husband and 
 wife agreed that if the insurance moneys be- 
 came payable before the mortgage debt, the 
 company might pay it out of them. Seld, al- 
 though the policy, if taken separately, created 
 an interest in the wife not assignable by her, 
 so as to bar her right of survivorship, yet as 
 it had been created for the purpose of sup- 
 porting the mortgage, and as a part of the 
 
 same transaction and in pursuance of a con- 
 tract that it should secure the loan, the wife's 
 interest under the policy was capable of as- 
 signment by her. Winter v. Easum, 2 DeG., 
 J. & S., 272. 
 
 (b) WTien invalid. 
 
 7. Policy to the wife for her benefit, and in 
 case of her death to her children. Held, the 
 policy was issued and taken imder the act of 
 1840, entitled, " An act in respect to insurances 
 of lives, for the benefit of married women ; " 
 that the wife's assignment of it was invalid. 
 Badie v. Slimvwn, 26 N. Y., 9. 
 
 8. Policy upon the life of the husband, pay- 
 able to the wife. She made a blank assign- 
 ment, and her husband, the assignee, allowed 
 the policy to lapse for nonpayment of pre. 
 mium, because the company refused to recog- 
 nize her assignment, which was in fact illegal 
 and void. New policies were thereupon is- 
 sued upon the same life, on the original appli- 
 cation at the same rate of premium, without 
 any new medical examination, the old policies, 
 and all claims thereunder, being then surren- 
 dered. Seld, a scheme contrived by the de- 
 fendant with the assent of the plaintifli^s hus- 
 band to exclude the wife from the benefits of 
 the policies made in her favor; that the change 
 was nominal only, and such a device gave no 
 new rights to its projectors against the wife ; 
 that if the assignee could not enforce his 
 rights against her under the old policy, he 
 could not be permitted to do so under the new ; 
 hence the plaintifif was entitled to recover. 
 Barry v. Mutual Life Ins. Co., 49 How. Pr., 504. 
 
 9. Policy on the life of the husband, paya- 
 ble to the wife, or to her children, in case she 
 should die before him. She made a blank 
 assignment, and her husband filled it up in 
 favor of B. & Co., who, upon the faith of it, 
 gave credit to the husband. The wife sur- 
 vived, and brought this action to set aside the 
 assignment, and to recover uppn the policy. 
 Held, it was, in eflfect, a provision made by the 
 husband for the wife and children, tlirough 
 the intervention of a trustee; that the courts 
 have uniformly held such a trust irrevocable 
 (citing Bell v. Cureton, 3 Myl. & K, 503 ; Wat- 
 son o. Bonney, 2 Sandf., 405 ; Peterson v. Mur- 
 phy, 17 Jur., 298; Gilchrist v. Stevenson, 9 
 Barb., 9); hence, the plaintiff was entitled to 
 recover the sum insured. Barry e. Equit-able 
 Life Ass. Boc, 14 Abb. Pr. (H. S.), 385 n. 
 
 767 
 
INDEX TO CONTENTS. 
 
 [Shau. Capitals Indicate separate titles ; the figures refer to colanmsj 
 
 A. 
 
 Abahbonment — 
 
 acceptance, 28, 29, 33, 34, 603, 604. 
 
 acquiescence, 29. 
 
 absolute, leaves nothing to cede to another, 
 
 9,35. 
 agent, master or mortgagor may make, 1, 
 
 2,3. 
 blockaded port of destination, 1407. 
 capture, detention, seizure, cause for, 5, 
 
 34, 1410, 1411, 1412, 1414 
 capture and condemnation, txniira the law 
 
 of nations, 13. 
 capture, not cause for, 1420. 
 capture, recapture and purchase by mas- 
 ter, cause for, 5, 6, 7, 27, 84, 1399, 1407, 
 
 1409, 1410, 1411^ 1418, 1417, 1437, 1438, 
 
 1444. 
 causes assigned, 3, 4. 
 conclusive, 28, 29, 34, 1435. 
 condition of cargo, 1399. 
 confiscation, 13. 
 divests, right to make, 5, 8, 9, 10, 18, 19, 
 
 20, 21, 34, 1420, 1421, 1436, 1428, 1429, 
 
 1430. 
 demand for total loss, is an, 1. 
 delay in offering, 15, 16, 17, 18, 19, 30, 31, 
 
 22,23. 
 embargo, 5. 
 
 freight, loss of, 13, 37, 30, 31, 603. 
 master's protest, is an, 3. 
 master's sale, 9, 14, 23, 1397, 1398, 1399. 
 missing ship, 14. 
 
 oflFer by insurer to make repairs, 26. 
 offer to abandon, is an, 3. 
 offer, made after vessel is safe, 5, 8, 10, 18, 
 
 19, 20, 21, 34, 1420, 1431, 1436, 1428, 1439, 
 
 1430. 
 " one-third new for old," 1409, 1435, 1436, 
 
 1437, 1439, 1441. 
 49 
 
 Abansoitueitt — eon. 
 
 possession, to make repairs, 15, 28, 29, 32, 
 
 33. 
 public enemies, 15. 
 purchase by insured, 24, 25, 26. 
 refused entrance into port of destination, 
 
 4, 1427, 1439. 
 reinsurance, 1186. 
 repairs, cost of, or failure to procure, 5, 6, 
 
 9, 15, 23, 1409, 1417, 1437, 1438, 1444. 
 restoration, after offer to make, 36, 26, 37, 
 
 1404, 1408, 1417, 1418. 
 restoration, before offer made, 5, 8, 10, 18, 
 
 19, 30, 21, 34, 1420, 1431, 1426, 1428, 1439, 
 
 1430. 
 retardation of voyage, 1429, 1430. 
 sale, by insurer, 1404. 
 sale, by order of court, 10. 
 sale of cargo, 14, 35. 
 sale of ship, by master, 14, 26. 
 sent on another voyage, 34. 
 seized but not condemned, 10. 
 ship broken up and sold as old timber, 13. 
 spes reeuperandi, 11, 13, 13. 
 stranding, 5. 
 submerged, 14, 1433. 
 superintending repairs by insurer, 38. 
 transhipment and forwarding, 1437. 
 unnecessary, 591, 596, 597, 603. 
 voyage, loss of, 7. 
 voyage, not worth pursuing, 7. 
 waiver of, 24, 35, 36, SJ7, 38. 
 what the abandonment carries, 30, 81, 
 
 1404. 
 wrecked ship, 14. 
 
 Abatement — 
 
 alien enemy, 36. 
 
 denying cause of action waives abatement, 
 
 36. 
 failure to submit to examination under 
 oath, 86. 
 
 769 
 
1539 
 
 INDEX TO CONTENTS. 
 
 1640 
 
 Abatement — con. 
 misnomer, 36. 
 resisting action upon merits, 37. 
 
 Absolttte Owwek — 
 
 actual possession accompanied by claim 
 
 to fee, 39. 
 agreement to convey, 38. 
 chattel mortgage, 40. 
 deed of conveyance prima facie, 39. 
 equitable owner, 38, 40. 
 foreclosure sale, 39, 40. 
 married woman, 39. 
 one of two partners, 39. 
 partners or tenants in common, 38. 
 sheriff's sale, 40. 
 
 Accident — 
 
 disability, 46, 47. 
 
 erysipelas produced by cut, 45. 
 
 falling from building, 43. 
 
 found drowned, 41, 42, 43. 
 
 getting upon cars or omnibus in motion, 
 
 40, 41, 43, 43. 
 jumping, 45. 
 lifting, 44. 
 
 locomotive engineer, 46. 
 peritonitis, 43. 
 
 projecting arm firom car window, 1147. 
 proof of, 46. 
 rupture and hernia, 43. 
 slipping from step, 44. 
 sunstroke, 45. 
 unnecessary danger, 42. 
 walking, 44. 
 
 AccoBD AND Satisfaction — 
 payment of part, 47. 
 
 AcconNT Stated — 
 
 adjustment of claim and promise to pay, 
 
 47. 
 
 Action — 
 
 administratrix may sue, 69. 
 
 adoption of policy, 64, 67. 
 
 all interested may join, 73. 
 
 assignee of claim may sue, 59. 
 
 assignee of policy may sue, 60, 61, 62, 63, 64. 
 
 assignee shall not sue, 74, 76, 77, 79. 
 
 assignor may sue, 69. 
 
 assignor and assignee may join, 78. 
 
 assignor shall not sue, 75. 
 
 assured shall not sue, 75. 
 
 bankrupt may sue, 71. 
 
 bearer may sue, 63. 
 
 before contingency happens, 57, 80. 
 
 before contributions are made, 58. 
 
 before genera] average is stated, 48. 
 
 770 
 
 Action — eon. 
 
 beneficiary may sue, 67, 73. 
 
 certificate, holder of, may sue, 65. 
 
 committee of finance, 73. 
 
 consignee may sue, 60. 
 
 consignor may sue, 68. 
 
 covenantee, 68, 73. 
 
 executors may sue, 71. 
 
 " for account of whom it may concern," 
 59, 65, 66, 69, 70, 75. 
 
 form of, 48, 49. 
 
 heir of deceased partner, 75. 
 
 in the name of insured, 06, 67, 68, 70, 73. 
 
 insurers cannot sue wrongdoer, 78, 79. 
 
 " loss, if any, payable to ," 59, 76, 77, 
 
 79. 
 
 manager, 80, 
 
 misjoinder, .^0. 
 
 mortgagee, 60, 61, 64. 
 
 mortgagor, 64, 66, 69, 77. 
 
 necessary parties, 51. 
 
 nominal parties, 73. 
 
 party not named in policy, 78. 
 
 payee named by indorsement, 61, 63. 
 
 payee named in policy, 59. 
 
 pledgee, 71. 
 
 policy to two — one cannot sue, 79. 
 
 premature, 80, 81, 83. 
 
 principal, undisclosed, 68, 69, 71. 
 
 promissory notes, 61, 69. 
 
 purchaser of claim, 63. 
 
 receiver of insolvent, 78. 
 
 religious corporatiqn, 69. 
 
 renewal of policy, 77. 
 
 separate causes of, 83. 
 
 sold but not removed, 65. 
 
 the people, 66. 
 
 trustees, 61, 63, 65, 66, 7S. 
 
 unknown persons, 74 
 
 widow, 59, 60, 63. 
 
 wife, 59, 65. 
 
 Addamncm — 
 omitted, 83. 
 
 Adjacent BuiIiDings — 
 
 buildings subsequently erected, 85. 
 failure to disclose does not affect policy, 
 
 85, 86, 87, 
 not required to disclose, 85. 
 purposes employed, 86. 
 what are not buildings, 85. 
 when failure to disclose vitiates policy, 83, 
 
 84,85. 
 whether those not disclosed were material, 
 
 not a question to be considered, 83, 84, 
 
 85. 
 
1541 
 
 INDEX TO CONTENTS. 
 
 1642 
 
 VnirsTMSNT — 
 
 
 AUKN ATION — con. 
 
 actual value, 93. 
 
 
 mechanic's lien, judgment and execution, 
 
 conclusive, 87, 88. 
 
 
 101. 
 
 construction, 93. 
 
 
 mortgage, 104, 108, 109. 
 
 mixed policy, 91. 
 
 
 nonratification, 100, 107. 
 
 nonconclusive, 88, 8Q. 
 
 
 partition, 104. 
 
 old materials, 90. 
 
 
 recorded deed, 103. 
 
 " on st«ck," and others " on stock manu- 
 
 refusal to ratify sale and confirm policy, 
 
 factured and unmanufactured,' 
 
 ■90. 
 
 107. 
 
 representation, 91. 
 
 
 sale by agent, 104. 
 
 "three-fourths the value," 91. 
 
 
 sale by master, 96, 99. 
 
 usage, 90. 
 
 
 sold but not delivered, 110. 
 
 valued policies, 91. 
 
 
 sale of part, 103, 104, 105, 110. 
 
 valued and open policies on 
 
 the same 
 
 sale made after claim accrued, 103. 
 
 loss, 90. 
 
 
 wife's propertj- sold by husband, 110. 
 withdrawal of copartner, 103. 
 
 Admesistbation — 
 
 
 Allegata et Pkobata — 
 
 conflict of, 93. 
 
 
 no variance, 116, 117, 118, 119, 120. 
 
 Admissioss — 
 
 
 variance between allegation and proof, 
 
 attempt to cancel, 93. 
 
 
 111, 113, 113, 114i 115. 
 
 corporate existence, 94. 
 
 
 Altebation op Instkumknts — 
 
 debtor and creditor, 93. 
 
 
 after execution, quantity and value in- 
 
 of interest, 93. 
 
 
 serted, 130. 
 alternative port of destination, 130. 
 
 Agreed Cask — 
 
 
 changing port of destination, 121. 
 
 doubtful facts, 04. 
 
 
 date of sailing, 130. 
 
 presumption, 94. 
 
 
 " leave to call," interpolated, 131. 
 
 set aside, 94. 
 
 
 "sell, barter and exchange " interpolated, 
 
 ASSEEMEMTS OF CJOUBSKL — 
 
 
 133. 
 "to trade," interpolated, 131. 
 
 binding upon parties, 95. 
 
 
 "Treas. Sermans," interpolated, 121. 
 
 supplying defects in record, 94. 
 
 
 ALTEBATION S AND RePAIBS — 
 
 At.iknation — 
 
 
 estoppel, 133, 134. 
 
 agreement to convey, 103, 105, 
 
 106, 108, 
 
 necessary or incidental repairs, 122, 188, 
 
 109. 
 
 
 134 
 
 bankruptcy, 96, 97, 98, 99. 
 
 
 oil and turpentine, 123. 
 
 chattel mortgage, 103. 
 
 
 supply of water interrupted while repairs 
 
 contingent interest, 101. 
 
 
 were being made, 123. 
 
 conveyance and defeasance, 107. 
 
 
 Ahenduents — 
 
 conveyance absolute intended m 
 
 securi^. 
 
 after judgment, 136. 
 
 103, 111. 
 
 
 at and after trial, 134, 135. 
 
 conveyance and mortgage back, 96, 98. ^^ 
 
 making new parties, 126. 
 
 conveyance and reconveyance. 
 
 105, lUO, 
 
 refusing, 127. 
 
 110. 
 conveyance without consideration, to de- 
 fraud creditors, 97. 
 
 Annuitant and Anntjitee — 
 rights of, 128. 
 
 conveyance without payment of purchase 
 
 Appeals — 
 
 money, 98. 
 
 
 none will lie, 128, 129. 
 
 custom, 99. 
 
 
 Appeabanck — 
 
 defeasance, 98. 
 
 
 what is waived by, 129. 
 
 equity of redemption conveyed, 
 
 95,97,99, 
 
 
 108. 
 foreclosure, 108. 
 levy and sale by sheriiS; 101. 
 
 
 Appucation — 
 
 
 matter not warranted, 131, 132, 1£3, 134. 
 matter warranted, 129, 130. 
 
 levy of execution, 101, 103. 
 
 
 unanswered questions m, 1491, 1493. 
 
 771 
 
1543 
 
 INDEX TO CONTENTS. 
 
 1544 
 
 Abbitkation and Award — 
 
 Assignee of Policy — con. 
 
 agreement to arbitrate not binding, 134, 
 
 equitable assignment, 164, 166. 
 
 135, 136, 137. 
 
 equitable assignee preferred, 165. 
 
 arbitration must be allowed, 137, 138, 139. 
 
 garnishee, 166. 
 
 award conclusive, 139, 140. 
 
 incumbrance upon policy, 167. 
 
 award not conclusive, 141, 142. 
 
 insurer estopped to claim setofl, 164, 165. 
 
 waiving the agreement, 139. 
 
 limitation of claim, 164. 
 
 
 not affected by acts of insured, 156, 157, 
 
 Akgdments op Counsel — 
 
 158, 15B. 
 
 facts not proven, 142. 
 
 rebuilding, 164. 
 
 
 reinsurance, 165. 
 
 Abebsts, Resteaints and Detainments — 
 armed force put and kept on board, 143. 
 
 setoff of money due by insured to Insurer, 
 164, 166. 
 
 blockading port of departure, 143. 
 boarded and ordered away from port of 
 
 wife's assignment vititated by her death, 
 165. 
 
 destination, 144. 
 
 
 cargo forfeit, but vessel free, 144. 
 
 Assignment of Policy — 
 
 certainty of capture making voyage not 
 
 arrestment under law of Scotland, 175. 
 
 worth pursuing, 144. 
 
 assignable, what is, 181, 182. 
 
 condemned for violating embargo, 147. 
 
 assignment, no defense, 179, 180, 181, 
 
 domestic embargo, 145. 
 
 182. 
 
 embargo at port of departure, 143. 
 
 assignment, vitiates, 178, 179. 
 
 embargo by government of insured, 145. 
 
 bankruptcy of insured, 172, 175, 176, 177. 
 
 embargo in port of distress, 145. 
 
 consent to, 169. 
 
 expense of crew during embargo, 147. 
 
 creditor's, rights of, 169, 177. 
 
 fear of seizure, 146. 
 
 gift, 168. 
 
 lawful blockade, 145, 146, 147. 
 
 inchoate right, 174. 
 
 seizure at port of destination, 143. 
 
 indorsement, 169, 174. 
 
 seized in port of distress, 145. 
 
 lien, 177, 178. 
 
 warned back to port of departure, 147. 
 
 liability of trustee, 178. 
 
 
 "loss, if any, payable to ,» 169, 173, 
 
 Aeson and Incendiabism — 
 
 174. 
 
 circumstantial evidence, 149. 
 
 lunatics, 168. 
 
 conduct of accused, 151. 
 
 merger, 178. 
 
 corporation de facto, 150. 
 
 partnership, 175. 
 
 conversations among accused, 151. 
 
 pledged as collateral, 173, 177. 
 
 employment of counsel by the insurers, 
 
 possession, 174. 
 
 151. 
 
 suicide, 172. 
 
 evidence must preponderate, 148. 
 
 trustees, 178, 173. 
 
 extorted confessions disregarded, 148. 
 
 valid, 169, 170, 171, 172, 173. 
 
 proof of agent's power to make contract, 
 
 wife's, 171, 1532, 1533, 1534. 
 
 151. 
 
 writing unnecessary, 177, 178. 
 
 proof of body corporate unnecessary, 150. 
 
 
 reasonable doubt, 148, 149, 150. 
 
 Assubed oe Insubed — 
 
 
 who is neither, 182. 
 
 Assessments — 
 
 
 valid, 152, 153. 
 
 At and Fbom — ■• 
 
 void, 153, 154, 155. 
 
 at and from, 183, 184. 
 
 
 at and from an island, 183. 
 
 Assignee of Polict — 
 
 at and from a port, 183. 
 
 affected by acts of insured, 160, 161, 162, 
 
 "from the loading," 184, 185, 604, 605. 
 
 103. 
 
 "on freight at and from," 184. 
 
 assignee of bond, 167. 
 
 time policy, at and from, 184, 185. 
 
 assignment made in extremis, 167. 
 
 when vessel has been a long time at port, 
 
 assignment not defeated without assent of 
 
 183. 
 
 assignee, 166, 177. 
 
 when vessel is at, 183. 
 
 conflicting claims, 167. 
 
 when vessel not at, 183. 
 
 772 
 
1545 
 
 INDEX TO CONTENTS. 
 
 1546 
 
 Atlantic Cable — 
 
 insurance on, 163, 186. 
 risks assumed, 186. 
 
 Attachment and Garnishment — 
 answer taken as true, 187, 188. 
 assignee and garnishee, 188. 
 bona fide payments after service of pro- 
 cess, lfl7, 188. 
 funeins officio, 188. 
 liable to attachment, 187. 
 money due for exempt goods, 187. 
 nothing due when process served, 189. 
 process served on agent, 187. 
 replacing or rebuilding, 188, 189. 
 what defeats process, 187, 188, 189. 
 
 Attokney at Law — 
 
 authority presumed, 189. 
 
 At Sea — 
 
 time policy, 189, 190, 191, 193. 
 not at sea, 191, 192. 
 
 B. 
 
 Bakbatkt — 
 
 assignment of policy, 203. 
 
 attempt to rescue from captors, 201. 
 
 charterers acts are the acts of owner, 202. 
 
 charterers are not owners pro hoc vice, 195. 
 
 desertion by crew, 202. 
 
 deviation in obedience to owners instruc- 
 tions, 203. 
 
 embezzlement or stealing is, 195, 196. 
 
 fire intentional and fraudulent is, 194. 
 
 fraud of master, destroying neutral char- 
 acter is, 196. 
 
 frandulent sale and purchase by master 
 does not make him owner, 195. 
 
 general owner cannot commit, 200. 
 
 included, 193, 196. 
 
 master being charterer is owner pro liae 
 nice, 301. 
 
 master as consignee, 195. 
 
 master's acts procuring condemnation, 303. 
 
 master's fraudulent act is, 194. 
 
 master's fraudulent sale, though he is part 
 owner, 190, 200. 
 
 master's neglect to repair, 203. 
 
 mutiny, 197, 198. 
 
 negligence, or accident, the result of neg- 
 ligence is not, 196, 303. 
 
 not included, 193, 194. 
 
 Babratrt — eon. 
 
 not prima facie evidence of, 202, 203. 
 
 onus is upon insurer to show master is 
 owner, 194, 193. 
 
 petty theft is not, 196. 
 
 presence of owner, 197, 198. 
 
 prima facie evidence of, 199. 
 
 prosecuting business against owner's or- 
 ders, 199. 
 
 prosecuting business not against owner's 
 orders, 201, 203. 
 
 second mate is a mariner, though acting 
 master, 196, 197. 
 
 seizure caused by master's fraud, 197, 198. 
 
 self intei-est not a necessary ingredient, 
 196. 
 
 smuggling by master, 199. 
 
 taking goods contraband is, 194, 193, 197. 
 
 BEQtJESTS — 
 
 " and any money I may die possessed of, 
 or which may be due and owing to me 
 at the time of my decease," includes 
 policy, 304. 
 
 "all outstanding debts owing," includes 
 policy, 304, 305. 
 
 "bonds, consuls or anything else," in- 
 cludes policy, 204. 
 
 "£500 now secured on, etc., and by a pol- 
 icy," does not include the policy, 205. 
 
 " Madame F.'s annuity and £1,000," does 
 not include the policy upon life of 
 grantor, 305. 
 
 nuncupative will, 204. 
 
 proceeds of policy go with the realty, 304. 
 
 "residue, real and personal," includes 
 policy, 203, 204. 
 
 Bills of Exceptions — 
 
 imperfect and defective, 205, 306, 307. 
 
 Bills op Lading — 
 not conclusive, 807. 
 not evidence against insurer, 307. 
 not evidence of property, 307. 
 
 Bill op Pakticdlabs — 
 
 particulars of symptoms of disease, 307. 
 
 Bloceadb — 
 de facto, 309. 
 dispersion of fleet, 208. 
 driven into, by storm, 208. 
 goods in lighters or laden at port of de^ 
 
 partnre, 308. 
 may sail for till warned, 209, 210. 
 notice of, 208, 309, 310. 
 
 773 
 
1547 
 
 INDEX TO CONTENTS. 
 
 1548 
 
 Bottomry and Respondentia — 
 
 
 Change of Vbntte — 
 
 bond to two persons jointly, 211. 
 
 
 affidavit for, tested by plaintiff's declara- 
 
 eo nomine, 210. 
 
 
 tion, 224. 
 
 insurer of ship not bound to pay, 
 
 210, 211. 
 
 corporation, 224. 
 
 " on bottomry " is suflScient, 211. 
 
 
 prejudice of judge, 224. 
 
 requisites of bond, 211. 
 
 
 view of premises, 224. 
 
 the mate may make, 211. 
 
 
 Citizens — 
 
 bodies corporate are not, 226. 
 
 total destruction must occur, 211, 
 
 212. 
 
 BoNtrs — 
 
 new policy given in lieu of, lapsed, 212. 
 
 Bbokers — 
 
 brokerage, 216. 
 discount on premium, 216. 
 failure to disclose material matters, 215. 
 failure to have policy modified, 215. 
 failure to procure delivery of policy, 215. 
 lien for general balance, 213, 214. 
 lien for premium, 214. 
 parting with policy, 213. 
 possession of broker is possession of the 
 factor, 214. 
 
 c. 
 
 Captube and Seizuee — 
 
 " all risk of blockaded port excepted," ex- 
 empts capture, legal or illegal, 222, 223. 
 
 boarded in the roads off Pillau, 221. 
 
 capture by pirates, 221. 
 
 capture unlawful, 223. 
 
 compromise with captors, 220. 
 
 confederate states steamer, 217, 219, 230. 
 
 confederate privateer, 218. 
 
 detention by embargo, 222. 
 
 driven upon enemy's coast and captured, 
 220. 
 
 forcible possession by emigrants is seiz- 
 ure, 223. 
 
 four leagues &om destination and seques- 
 tered at destination, 218. 
 
 law of nations, 221. 
 
 mistake of commander of fort, 222. 
 
 moored by captors and there damaged by 
 collision, 218. 
 
 neglect of supercargo, 218. 
 
 ordinance not assented to by neutral, 221. 
 
 seizure and capture are synonymous, 223. 
 
 seizure of cargo causing loss of voyage, 
 218. 
 
 seizure by confederate forces, 221, 222. 
 
 taken for government use, 219. 
 
 the act of a mob, 219. 
 
 T74 
 
 domicile, 225. 
 
 record of citizenship, 225. 
 
 residents carrying on trade are, 225, 226. 
 
 subject of Great Britain, 225. 
 
 Collision — 
 
 " all other perils," etc., 228. 
 
 detention for repairs, 230. 
 
 fault or mistake of officer in command of^ 
 
 227, 229, 230. 
 fees of counsel, 227. 
 injuries to the person, 230. 
 injury to " the other vessel," 229, 2.30. 
 loss without fault on either side, 226, 227. 
 measure of damage, 228. 
 negligence of officer, 227. 
 
 Common Carriers — 
 
 acceptance at point of distress, 231. 
 carrier not liable to insurer, 231. 
 conclusive presumptions, 231. 
 
 Compromise or Settlement — 
 authority, 234. 
 
 consideration for promise, 232. 
 discharge of claim without actuak pay- 
 ment, 233, 234. 
 false representation, 232, 233. 
 mistake of fact, 233. 
 not set aside, 234, 235. 
 payment of part, 232. 
 questions of fact, 233. 
 retaining money paid for, 234. 
 
 Concealment — 
 
 attempts or rumored attempts to destroy 
 
 the property, 236, 237. 
 express or implied warranties, 259. 
 information as to anterior loss or injury, 
 
 240, 241, 242, 243, 244, 245, 246, 247, 248, 
 
 250, 251, 252, 253, 254, 255, 256, 264. 
 interest of insured, 235, 236, 248, 249. 
 materiality, test of, 265. 
 mistake, 264. 
 
 mode of loading or stowing, 259, 260. 
 occupation, vocation, 248. 
 questions exclusively for the jury, 201, 
 
 262, 263, 264. 
 
1549 
 
 INDEX TO CONTENTS. 
 
 1550 
 
 CONCKAXMENT — COn. 
 
 refusal of other underwriters to take the 
 
 risk, 260, 261. 
 sailing of ship, 237, 338, 239, 250. 
 tenants, sub-tenants, 265. 
 test of, 265. 
 
 things immaterial, 261. 
 things insurers are presumed to know, 256, 
 
 257, 258, 259. 
 
 COITDEJCNED FOR BErNd UNSOTJND OR ROT- 
 TBN — 
 
 non-c(mclusive, 267, 268, 269. 
 survey conclusive, 266, 267. 
 
 Condition Precedent — 
 
 assignment of mortgage to insurer, 270. 
 certificate of, "altered but not endangered," 
 
 371. 
 certificate of magistrate or clergyman, 270, 
 
 371, 273. 
 condemnation, 370. 
 lien, 369. 
 
 license to land cargo, 370. 
 making protest, 871. 
 notice and proof of loss, 370. 
 ■preliminary proof of other insurance, 371. 
 testing chain cable, 369. 
 
 Consideration — 
 
 alienation of subject insured, 372, 273. 
 compromise of doubtful claim, 373. 
 condition not fulfilled, 373. 
 failure of, 274. 
 
 firm note for policy to one partner, 872. 
 immaterial, 374. 
 misfeasance, 874. 
 payment of part of claim, 373. 
 premium note for policy stipulating re- 
 scission at any time, 373. 
 promissory note for premium, 273. 
 
 Consignor and Consignee — 
 
 Consignor bound to insure, 874, 876. 
 
 failure to insure gives no right to premi- 
 um, 376. 
 
 failure of consignee to procure proof of 
 damage, 876. 
 
 pledgee bound to insure, 276. 
 
 Consolidation of Actions — 
 allowed, 277. 
 denied, 277, 378. 
 
 Construction — 
 
 barque on the stocks, 299. 
 boilerclause, 379, 380. 
 by steamers, 390. 
 cargo, 285, 386. 
 
 Construction — con. 
 
 cargo of whaling ship, 286. 
 conti-a Uie insurer, 298, 301. 
 damages, 280, 281, 383, 383, 284. 
 distinction between untrue replies and 
 
 failure to answer, 878. 
 " expresaio unius est exelusio alterius," 288, 
 
 897, 398. 
 final judgment, 300. 
 fire heat, 889. 
 freight, 385. 
 gunpowder, 889. 
 labor on Sabbath, 887. 
 lightning, 385. 
 live stock, 386. 
 merchandise, 385, 886. 
 naturalization, 298, 399. 
 night watchman, 386, 887. 
 night work, 286, 287. 
 not liable for damage by ice, 899. 
 on goods, 386. 
 person or persons, 298. 
 premises, 288. 
 prior in date, 300. 
 property, 385, 386. 
 respondentia, 886. 
 survey, 301. 
 
 " there is watchmSn nights," 287. 
 time policy excluding certain ports, 890. 
 traveling by private or public conveyance, 
 
 1445. 
 understanding of one party, 300. 
 use and occupation, 288. 
 voyage or voyages, 390, 391, 292, 393, 894, 
 
 395. 
 warranty deed not title in fee, 879. 
 war risks, 395, 396, 897. 
 watchman for steamer, 287. 
 
 Continuance — 
 affidavit for, 302. 
 amendment, 303. 
 surprise, 308. 
 
 Contract — 
 
 application, 304, 305, 307, 308, 310, 311. 
 
 certificate of health, 306. 
 
 certificate of insurance, 308. 
 
 charter and by-laws, 307. 
 
 completed, 311, 312, 313, 314, 315, 316, 317, 
 318, 319, 330, 331, 332, 333, 324, 335, 336, 
 337, 328, 339, 330, 331, 833, 833, 334. 
 
 conditions annexed, 303, 309. 
 
 continuing, 361. 
 
 dealings between parties, 304, 305. 
 
 execution and delivery, 358, 359. 
 
 775 
 
1551 
 
 INDEX TO CONTENTS. 
 
 1552 
 
 Contract — eon. 
 
 
 Covenantor and Covenantee — 
 
 joint, 367, 368. 
 
 
 assignee of lease, 380. 
 
 lawful, 364. 
 
 
 suicide, 380. 
 
 letters, 303. 
 
 
 
 modification or substitution, 355, 356, 357, 
 
 Creditors- 
 
 358. 
 
 
 preference, 381. 
 
 new promise, 360, 361. 
 
 
 
 not complete, 334, 335, 336, 337, 338, 
 
 339, 
 
 
 340, 341, 342, 343, ^44, 345, 346, 347, 
 
 348, 
 
 D. 
 
 349, 350, 351, 352, 353, 354. 
 
 
 order for insurance, 308. 
 
 
 
 other policies, 309. 
 
 
 Damages — 
 
 part of, 303. 
 promissory note, 304. 
 
 
 actual damage, 383. 
 
 
 charge for. purchasing, 381. 
 
 ratification and adoption, 362, 363. 
 
 
 cost of restoring, 388. 
 
 several, 367. 
 
 
 cost price, 384. 
 
 survey, 304, 306, 307, 308, 310, 
 
 
 cost to manufacture, 383. 
 
 unlawful, 364, 3«5, 366. 
 
 
 currency of place of loss, 383. 
 
 usage or custom, 309. 
 
 
 exceeding sum insured, 388. 
 
 war, effect of, 366, 367. 
 
 
 exchange, rate of, 382. 
 
 expense of selling and wharfage, 383. 
 
 Contribution— 
 
 
 failure to issue policy, 391. 
 
 coinsurers, 368. 
 
 
 freight, 384. 
 
 interruption of business, 382. 
 
 Convoy— 
 
 
 jettison, 388. 
 
 calm, 371. 
 
 
 lease of land, 382. 
 
 captured while sailing for rendezvous, 369. 
 
 life policy, 384. 
 
 presumptions, 369. < 
 
 
 marketable value, 384. 
 
 register, 370. 
 
 
 new and old, 384, 385. 
 
 sailing orders, 370, 371. 
 
 
 nonoccupancy, 383. 
 
 sailing with, 369, 370. 
 
 
 not to be heard in reduction of, 385, 386. 
 
 separated from by stress of weather, 369, 
 
 open policy, 383. 
 
 371. 
 
 
 port of destination, value at, 382. 
 
 to sail with, 371. 
 
 
 prime cost, 383. 
 
 prime cost and usual charges, 383. 
 
 Countersigning Policy— 
 
 
 prior partial losses, 385. 
 
 compelled to execute, 373. 
 
 
 preliminary proof, 391. 
 
 not countersigned, 373, 373. 
 
 
 premium, 384. 
 
 payment of premium, 372. 
 
 
 pro rata, 385. 
 
 presumption, 372. 
 
 
 rebuilding, 385. 
 
 sound and damaged value, 884. 
 
 Court and Jury — 
 
 
 sum insured, measure of, 386, 387, 388, 
 
 act of congress, 374. 
 
 
 unpaid purchase money, 385. 
 
 conclusive, 375. 
 
 
 value of property is the measure, 389, 390. 
 
 definite meaning, 373. 
 
 
 valued policy is the measure, 388. 
 
 facts not disputed, 373. 
 
 
 wages and provisions of crew, 390. 
 
 force of testimony, 373. 
 
 
 
 incident of business, 374. 
 
 
 Death— 
 
 judicial notice, 373. 
 
 
 adultery, 393. 
 
 law, 373, 374. 
 
 
 assault, 393. 
 
 nonsuit, 373. 
 
 
 capital punishment, .391. 
 
 public history, 373. 
 
 
 conflict abandoned, 393. 
 
 questions for the jury, 875, 376, 377, 378, 
 
 felonious intent, 393. 
 
 379, 380. 
 
 
 known violation of law, 393, 308. 
 
 submitting question to jury, 374. 
 
 
 racing, 392. 
 
 writing, 374. 
 
 
 ge defendendo, 394. 
 
 :776 
 
1553 
 
 INDEX TO CONTENTS. 
 
 1554 
 
 Deck Loads — 
 
 insurer liable for, 395, 396. 
 insurer not liable for, 396, 397. 
 not coati-ibuted for, 394. 
 
 Demakd — 
 
 by assignee, 398. 
 evidence of, 398. 
 
 admission, 398. 
 judgment, 398. 
 pleading over, 398. 
 refusal to answer over, 398. 
 waived, 398. 
 
 Deposited with Insubasck Department — 
 securities, 399. 
 
 Depositions — 
 
 after trial and appeal, 399. 
 
 amendments, 400. 
 
 commission to two, 400. 
 
 computing distance and time, 400, 401. 
 
 directed to one executed by another, 400. 
 
 failure to examine all witnesses named, 
 
 400. 
 no issue joined, 399. 
 reference to papers not produced, 400. 
 unanswered interrogatories, 399. 
 who may read, 400. 
 
 Descent — 
 
 payable to widow or her children if they 
 survive, 401. 
 
 Descbiption — 
 
 bottomry bond, 401. 
 brick building, 403. 
 capital stock, 402. 
 dwelling house, 403, 453. 
 freight advanced, 403. 
 immaterial, 402. 
 material, 402. 
 mortgagees, 402. 
 place, 402. 
 rejected, 402, 403. 
 Socrate— Socrates, 403. 
 
 Deviation — 
 
 attempts to save life, 424, 425. 
 
 capture, 404. 
 
 change of master, 405. 
 
 construction, 439, 440, 441, 443, 443, 444, 
 
 445, 446, 447, 448. 
 custom and usage, 436, 437, 438. 
 delay, 415, 416, 417, 418, 419, 438, 439. 
 
 Deviation — con. 
 
 departure tl-om voyage, 405, 406, 407, 408, 
 
 409, 410, 411, 413, 413, 414, 415. 
 intention to deviate, 434, 435. 
 involuntary deviation, 483, 433, 434. 
 making and securing prize, 419, 420. 
 mismanagement or negligence, 439, 421. 
 necessary deviation, 435, 426, 437, 428, 429, 
 
 430, 431, 333. 
 obeying orders, ship of war, 431. 
 rescue, 422. 
 
 to avoid perils not insured, 433. 
 to procure medicines, 423. 
 towing, 433. 
 trading, 433, 433. 
 transhipment, 433, 424. 
 
 Discovert — 
 
 allegations for, 448, 449. 
 
 DrvOKCE — 
 
 eflfect of, on wife's policy, 449. 
 
 DooBLE OR Prior Insdrance — 
 adjustment or apportionment, 450. 
 cancellation, 451. 
 construction, 450. 
 contribution, 450, 453. 
 creditor, 453, 453. 
 double insurance, 451. 
 electing, 451. 
 fixtures, 450. 
 stock, 450. 
 time policy, 450. 
 two policies on same property, 452. 
 
 Due and Patable — 
 claim, 453. 
 due, 453. 
 payable, 453. 
 
 Dwelling House — 
 one room, 403, 453. 
 sleeping in store, 454. 
 
 E. 
 
 Estoppel — 
 
 acceptance of premium or assessments, 
 
 455, 458, 461, 473, 474, 475. 
 agent for several companies, 476. 
 agent's authority limited, 477. 
 agent's declarations, 455. 
 agent's knowledge or mistake, 461, 462, 
 
 463, 464, 465, 466, 467, 468, 469, 470, 471, 
 
 472, 473, 474, 475, 476, 477. 
 
 777 
 
1555 
 
 INDEX TO CONTENTS. 
 
 1556 
 
 Estoppel — eon. 
 alienation, 456. 
 
 application, 459, 460, 461, 462, 475. 
 application signed in blank, 476. 
 buildings within ten rods, 454, 459. 
 certificate of health, 454. 
 clearance papers, 456. 
 description, 457. 
 gunpowder, 468, 471. 
 illegal voyage, 457. 
 incumbrances, 468. 
 inspection by agent, 468, 469, 473. 
 intemperance, 471. 
 lights, 470. 
 lost policy, 457. 
 mechanics' lien, 470, 471. 
 mortgage, 458, 459, 460, 473. 
 open to view, 463. 
 other insurance, 455, 460, 476. 
 ownership, 455. 
 porticos criminis, 476. 
 prohibited goods, 457. 
 sale by one partner to copartner, 469. 
 solicitor of risks, 473. 
 title, 471, 473. 
 
 unoccupied premises, 460, 476. 
 watch clock, 468. 
 
 EVIDENCK — 
 
 absence of evidence as to quantify, 484. 
 
 absence of witness from state, 484. 
 
 accompanying papers, 480. 
 
 admission by Lloyd's agent, 485. 
 
 admission of master of ship, 484. 
 
 affidavit, 484. 
 
 agent's declaration, 479, 510, 511, 512, 513. 
 
 application, 479. 
 
 bill of particulars, 481. 
 
 books, 520, 521, 522, 536, 537, 538, 589. 
 
 character, 519, 520. 
 
 character of goods, 480. 
 
 clerk's certificate, 488. 
 
 condemnation, 486. 
 
 confidential communications, 518, 519. 
 
 consul's certificate, 483, 483, 485. 
 
 custom-house entries, 482, 535, 586. 
 
 declarations of deceased persons, 513, 514. 
 
 declarations of principals, 509, 510. 
 
 deposition, 486. 
 
 duplicates, 484. 
 
 estop, 503, 504, 505, 606, 507, 508. 
 
 foreign judgment, 483, 484, 485. 
 
 foreign laws, 539. 
 
 hearsay, 519. 
 
 Immaterial and Irrelevant, 530, 531, 532,| 
 
 533. 
 778 
 
 Evidence — con. 
 
 Impeaching, 539, 540, 541. 
 
 intention, 497, 498, 499. 
 
 inventory, 481. 
 
 invoices, 481. 
 
 latent ambiguity, 500, 501, 502, 503. 
 
 leading questions, 541. 
 
 letters, 536, 537, 538, 539 
 
 Lloyd's agent, 485. 
 
 Lloyd's book, 482. 
 
 lost recollection, 480. 
 
 mistake, 504, 505, 506, 507, 508. 
 
 newspapers, 480. 
 
 objections, 534, 535. 
 
 offers to sell, 481. 
 
 opinions, 522, 523, 524, 525, 526, 537, 528, 
 
 529, 530. 
 other losses by insured, 480. 
 papers, 530, 521, 523. 
 pecuniary condition, 479. 
 pedigree, 520. 
 policy, original, 481. 
 prospectus, 507, 508. 
 reasons, 543. 
 
 refreshing memory, 541, 542. 
 reputation, 478, 520. 
 res gestw, 514, 515, 516. 
 res inter alios aetee, 516, 517, 518, 519. 
 sailing orders, 479, 480. 
 searcher's report, 481. 
 sentence of condemnation, 478. 
 ship's register, 485. 
 stocks of goods held by others in same 
 
 trade, 478. 
 striking out, 538, 534. 
 subscribing witnesses, 485. 
 survey, 481. 
 surveyor's report, 483. 
 usage, 535, 536. 
 withdrawing, 533, 534. 
 weight of, 533. 
 
 Examination TThder Oath — 
 adjournment, 543. 
 attaching creditor, 543. 
 demand for, after claim due, 543, 544. 
 excuse, 544. 
 
 further examination, 543. 
 preliminary proof, 542. 
 refusal, 543. 
 settlement with other insurers, 543. 
 
 Explosion — 
 
 boilers exploded, 545, 546, 547, 548, 549. 
 ensuing fire, 545. 
 gas, 545, 547, 648, 649. 
 
1557 
 
 INDEX TO CONTENTS. 
 
 1558 
 
 Explosion — con. 
 
 gunpowder, 548, 549. 
 Tuuuicipal authority, 544, 545. 
 new cause, 546. 
 
 FALLma Building — 
 
 blown off foundation, 550. 
 
 fire after fall, 550. 
 
 Are and water, 549, 550. 
 
 False Swearing ok Attempt at Fbatjd — 
 claiming for goods saved, 551, 553. 
 correcting claim, 555, 556. 
 difference between claim and verdict, 551, 
 
 553, 554, 5.55, 556, 557, 55S. 
 failure to comply with conditions, 551. 
 false entries in books, 550. 
 false statements as to title, 553, 553, 559. 
 fictitious invoices, 553. 
 finding of jury, effect of, 551, 553, 554, 555, 
 
 556, 557. 
 onu» probaiidi, 554, 555. 
 over valuation, 551, 557, 558. 
 pleadings, 559. 
 scienter, 553, 554, 556, 557. 
 terms upon which insured settled with 
 
 other insurers, 551. 
 
 Floating Policies — 
 adjustment, 560. 
 specific policies, 559. 
 
 Fob Account op "Whom it may Conoekn — 
 
 excluding, 564, 565, 566, 567. 
 
 including, 560, 561, 563, 563, 564. 
 Foreign Judgments — 
 
 defense same as against action on policy, 
 567. 
 
 Fraud— 
 
 erassa neglegentia, 568. 
 falsely representing condition of com- 
 pany, 568, 569. 
 oflScers of insurance company, 568. 
 over valuation, 568, 569. 
 suppression, 569. 
 
 Freight — 
 
 acceptance involuntary, 574. 
 acceptance voluntary, 573, 574 
 - advances, 573, 582. 
 
 assignee of charter party, 570, 571. 
 bottomry, 581. 
 
 Freight — con. 
 
 cargo owner, the charterer, 576. 
 
 charterer, 571, 589. 
 
 cost of forwarding, 573. 
 
 cost of repairs, 588, 587, 588, 589, 595, 596, 
 597. 
 
 credit for freight earned, 585, 586, 589, 590, 
 598, 603, 608. 
 
 detention to make repairs, 576, 577, 578, 
 583, 583, 597. 
 
 " earned or not earned," 570. ■ 
 
 embargo, 571, 572, 590. 
 
 eo nomine, 571. 
 
 loss of season or market, 578, 580, 581, 583. 
 
 master's sale, 590, 594. 
 
 measure of damage, 604. 
 
 memorandum articles, 584, 585. 
 
 missing ship, 587. 
 
 partial loss of, 598, 599, 600, 601. 
 
 passage money, 583. 
 
 prepaid, 571, 589. 
 
 procuring other vessel, 586. 
 
 pro rata itineris, 573, 573, 574, 575. ' 
 
 refusal to permit landing, 575, 576, 580, 593. 
 
 sale of cargo, 571, 584. 
 
 ship and cargo, the property of one per- 
 son, 576. 
 
 specie, 580. 
 
 stranding, 586. 
 
 subrogation, 573. 
 
 surrender to insurers, 574, 575.. 
 
 technical total loss, 586. 
 
 vendor of ship, 570. 
 
 vessel lost before cargo taken, 573, 577, 
 585, 586, 588, 589, 590, 591, 593, 593, 594, 
 596. 
 
 voyage not worth pursuing, 589, 595. 
 
 wages of crew, 570, 573. 
 
 warranted free from average, 595. 
 
 G. 
 
 General Average — 
 
 adjustment, 619, 630, 631. 
 average bond, 615. 
 certain destruction, 614. 
 charges in, 606, 607, 608, 609, 610. 
 contributes, 614, 615, 616. 
 contributing value, 618, 619. 
 defending vessel, 613. 
 escape from pursuers, 613. 
 freight, 614, 617, 618. 
 jettison, 607, 619. 
 
 '779 
 
1559 
 
 INDEX TO CONTENTS. 
 
 1560 
 
 GENEKAIi AVEKAGE — 6071. 
 
 Increase ob Change of Risk — eon. 
 
 lex loci, 621, 622. 
 
 open fire, 651. 
 
 lighters, 608. 
 
 pleading, 653. 
 
 not charges in, 611, 612, 613. 
 
 printing, 659. 
 
 not to be contributed for, 614, 615. 
 
 questions for the jury, 661. 
 
 outfits, 615. 
 
 rag cutter and duster replaced by mill 
 
 sinking ships, 611. 
 
 stones, 650. 
 
 slaves, 616, 617. 
 
 repairs, 658. 
 
 wages and provisions, 608, 609, 612, 622. 
 
 strangers, 656. 
 
 
 tenant, 656. 
 
 GrPT — 
 
 
 donatio cauga mortU, 622. 
 
 iKCnUBRANCES — 
 
 
 acceptance and retention of policy, 671. 
 
 Gold Coin— 
 
 agent's knowledge, 673, 674. 
 
 dividends, 623. 
 
 amount of, riot stated in application, 673, 
 
 payable in, 623. 
 
 674 
 
 
 application, 670, 672. 
 
 
 execution and levy, 669. 
 
 I. 
 
 foreclosure, 673. 
 
 ignorant person, 671. 
 
 
 interpretation, 675, 676. 
 
 IumitTkade— 
 
 judgment liens, 665, 666, 669, 673. 
 
 contraband, 649. 
 
 material, 666. 
 
 distance from shore, 649. 
 
 mortgages, 666, 667, 668, 669, 670, 671, 672, 
 
 evidence, 689, 640, 641, 642, 643, 644, 645, 
 
 673. 
 
 646, 647, 648. 
 
 no incumbrance, 674, 675. 
 
 law of nations, 649. 
 
 part owner, 666. 
 
 no breach of the warranty, 624, 625, 626, 
 
 taxes sold for, 666. 
 
 627, C28, 629, 630, 631, 632, 633, 634, 635, 
 
 trust deed, 671. 
 
 636. 
 
 verbal notice of, 672. 
 
 not evidence of, 636, 637, 638, 639. 
 
 void in part, void in toto, 667. 
 
 risk not incladed, 624. 
 
 
 
 Indemnity — 
 
 Incbease ok Change op Risk— 
 
 contribution among co-insurers, 676, 677. 
 
 acts of lessee, 650. 
 
 Insanity — 
 
 additional stoves, 656. 
 
 evidence of, 677. 
 
 adjacent buildings subsequently erected. 
 
 no evidence o^ 678. 
 
 651, 653, 654, 656, 660. 
 
 
 alteration, 653. 
 
 In Port- 
 
 blacksmith's shops, 657, 658. 
 
 in port, 679. 
 
 boarding house, 650, 652. 
 
 not in port, 679, 680. 
 
 description, 859. 
 
 
 diverting water, 649, 650. 
 
 Inspection op Books and Papers — 
 
 drying bark, 653. 
 
 books, 681. 
 
 dummy engine, 650. 
 
 letters, 682. 
 
 evidence, 662. 
 
 medical examiner, report of, 681. 
 
 failure to elept to cancel, 652, 665. 
 
 paperri, 681. 
 
 fireworks, 660, 661. 
 
 tubpima duces tecum, 680. 
 
 foreclosure, 654. 
 
 Instructions — 
 
 gamblers, 661, 662. 
 
 tojury, 681, 682. 
 
 gunpowder, 660. • 
 
 
 increase of before contract completed, 654. 
 
 Insurable Interest — 
 
 interpretation, 653, 659, 662, 663, 664, 665. 
 
 charterer of ship, 718. 
 
 levy and sale, 650. 
 
 divesting the, 705, 706, 707, 708, 709, 710. 
 
 livery stable, 655. 
 
 evidence of, 718. 
 
 notice, 657. 
 
 " interest or no interest," 718. 
 
 780 
 
1561 
 
 INDEX TO CONTENTS. 
 
 1562 
 
 iNscoABiiE Ikterest — con. 
 
 Invasion, Riot, Insurrection, Civil Com- 
 
 life, 683, 684, 685, 687, 699,700. 
 
 motion, MrUTAST OK UstJRPED POWER — 
 
 must be disclosed, 716. 
 
 blown up by order of civil authorities, 738. 
 
 need not be disclosed, 716, 717. 
 
 camp fires, 730. 
 
 non divesting, 711, 712, 713, 714, 715. 
 
 civil commotion, 731. 
 
 part owner cannot insure interests of other 
 
 confederate soldiers, 730, 731. 
 
 owners, 718. 
 
 fired by order of confederate officer in 
 
 proof of, 718. 
 
 command, 731. 
 
 property, 688, 689, 690, 691, 692, 693, 695, 
 
 flred by order of United States officer in 
 
 696, 697, 698, 699, 701, 702, 703, 704, 705. 
 
 command, 729. 
 
 
 invasion, 730. 
 
 Interest Monet and Usitry — 
 
 killed by armed patrol, 729. 
 
 after loss due, 719. 
 
 military or usurped power, 739, 730. 
 
 average loss, 720. 
 
 mobs or riot, 728. 729, 731. 
 
 corporation cannot plead 'usury, 720. 
 
 
 indefinite preliminary proof, 719. 
 
 Invoices— 
 
 jury may allow interest, 719. 
 
 Destroyed by the fire, 732. 
 
 life policy, 720. 
 
 evidence, 731. 
 
 lost policy, 720. 
 
 interpretation, 731, 738. 
 
 missing ship, 719. 
 
 
 ship's husband, 718. 
 
 Issues— 
 
 trustee process, 719, 720. 
 
 fact. 732. 
 
 vexatious delay, 720. 
 
 made by the parties, 733. 
 
 Ioterplkader — 
 
 
 assignment, 721. 
 
 
 bankruptcy, 721. 
 
 
 conflicting claims, 722, 723. 
 
 J. 
 
 necessary parties, 721. 
 
 
 partiUon, 721. 
 
 Judgment— 
 
 requisites of, 721, 722. 
 
 arrest of, 733. 
 
 reversion, 721. 
 
 final, 733. 
 
 tenant for life, 721, 
 
 remand, 733. 
 
 trustee, 733. 
 
 
 
 Jurat— 
 
 ISTOXlCATniG DRnTKS ASD Intbmpkrasce 
 
 insufficient, 733. 
 
 concealment, 725. 
 
 
 evidence to support issue, 725. 
 
 Jurisdiction— 
 
 incurring danger under influence of, 723. 
 
 admiralty, 745. 
 
 interpretation, 723, 724. 
 
 law, 743, 744, 745. 
 
 onus probandi, 724. 
 
 equity, 734, 735, 736, 737, 738, 739, 740, 741, 
 
 temperate at date of policy, 734, 735. 
 
 743, 743. 
 
 verdict against evidence, 724. 
 
 
 
 Jurors- 
 
 " Is Trust, on Coksignment ob on Commis- 
 
 by-standers, 745. 
 
 sion" — 
 
 incompetent, 746. 
 
 awaiting repairs, 728. 
 
 opinions of, 746. 
 
 cloth to be made into clothes, 726. 
 
 
 " for which they are responsible," 727. 
 
 
 lien for advances, 726. 
 
 
 limitations upon, 726. 
 
 
 names of owners not disclosed, 726. 
 
 K. 
 
 not in trust, 737. 
 
 
 security for debt, 727. 
 
 
 storage, 726. 
 
 Keeptng and Storing — 
 
 tenant, 736. 
 
 not prohibited, 751, 752. 
 
 warehousemen, 727. 
 
 prohibited, 746, 747, 748, 749, 750. 
 
 781 
 
1563 
 
 INDEX TO CONTENTS. 
 
 1564 
 
 L. 
 
 Laches — 
 753, 753. 
 
 Law of Nations — 
 
 seizure beyond territory, 753. 
 seizure upon high seas, 753. 
 
 Levy of Exbctjtion — 
 interpretation, 753, 754. 
 ■wrongful levy, 754. 
 
 Lex Fori — 
 Canada, 754. 
 State and United States courts, 754. 
 
 Lex Loci Contractus — 
 754, 755, 756, 757. 
 
 Lien — 
 
 bankrupt, 759. 
 
 continuing, 759. 
 
 corporate funds, 759.* 
 
 feme covert, 760. 
 
 maritime, 759. 
 
 mortgage, 759. 
 
 policy, 758, 759. 
 
 proceeds of policy, 758, 759, 760. 
 
 premises insured, 757, 758. 
 
 reinsurance, 758. 
 
 ship, 758. 
 
 Limitation of Actions — 
 accrue, 760, 762. 
 " after the happening of loss or damage," 
 
 764. 
 attachment, 762. 
 bar to action, 770, 771, 772, 773, 774, 775, 
 
 776. 
 commencing action, 763. 
 condition inoperative, 765, 766, 767, 768. 
 delay in bringing, 763, 764. 
 dismissed, 763. 
 
 dissolution of corporation, 763. 
 in time, 761. 
 nonsuit, 831. 
 place, 662. , 
 pleading, 760, 761. 
 prosecuted, 763, 765. 
 process issued, 763. 
 receiver appointed, 763. 
 scire faciei, 762. 
 waiver, 768, 769, 770. 
 •war, 761. 
 782 
 
 Lost or Not Lost - 
 776, 777, 778. 
 
 Lost Policy — 
 
 778, 779. 
 
 M. 
 
 Master of Ship — 
 
 agent for insurers, 782, 783. 
 duty of, 784, 785. 
 negligence of, 784, 785. 
 
 Master's Protest — 
 
 786, 787. 
 
 Medical Attendant — 
 
 787, 788. 
 
 Merger — 
 
 crime, 788, 789. 
 equity of redemption, 789. 
 mortgage, 789. 
 preexisting debt, 789. 
 
 Military or Natal Service — 
 
 superintending military laborers, 789. 
 
 Misrepresentations — 
 
 additions to buildings, 790. 
 
 adjoining buildings, 796, 797. 
 
 age, 795. 
 
 arrived safely, 792. 
 
 bilious fever, 791. 
 
 bona fide, 795. 
 
 conclusion, 797. 
 
 conflicting answers, 800. 
 
 convoy, 794. 
 
 disease of kidneys, 791. 
 
 declined by other insurers, 793, 794. 
 
 false, 793. 
 
 fraud and fraudulent, 792, 798, 801. 
 
 ignorance, 792. 
 
 indisputable policy, 794. 
 
 instructions to jury, 796, 801. 
 
 intent, 801. 
 
 interpretation, 798, 799. 
 
 license, 794. 
 
 married or single, 790. 
 
 materiality, 790. 
 
 medical attendant, 793. 
 
 omis probandi, 798. 
 
 other insurance, 791, 792. 
 
 ownership, 793. 
 
 pecuniary condition, 791. 
 
1565 
 
 INDEX TO CONTENTS. 
 
 1566 
 
 M1SRKPRESEXTA.T10KS — con. 
 
 NOHOCCUPANCY — 
 
 rate of premium, 795. 
 
 bar to claim, 824, 825, 826. 
 
 reinsurance, 793. 
 
 no defense, 827, 838, 839, 830. 
 
 retaining part of risk, 793, 795. 
 
 
 sailing of sliip, 793, 795, 796, 797. 
 
 Nonsuit — 
 
 sickness, 791. 
 
 admits or concedes, 830. 
 
 storms, 791. 
 
 demurrer to evidence, 830. 
 
 suppression, 801, 
 
 limitation of action, 831. 
 
 temperate habits, 795. 
 
 no right to, 830, 831. 
 
 termini, 797. 
 
 reasons for, not stated, 830. 
 
 test, 801. 
 
 
 time policy, 797. 
 
 Notice of Loss— 
 
 title, 800, 801. 
 
 delay defeats action, 835, 836, 837. 
 
 untrue statements, 793, 797, 801. 
 
 diligence, 839. 
 
 value, 793, 795, 797, 798. 
 
 forthwith, 840. 
 
 valuation named in policy, 796. 
 
 jury judges of time, 840. 
 
 warranty, 797. 
 
 no waiver, 839. 
 
 
 anus probaTidi, 840. 
 
 MOKET Had asd Rbceivkd — 
 
 precedent condition, 840. 
 
 action for, 802. 
 
 sufficient notice, 833, 833. 
 
 premiums not collected. 802. 
 
 timely notice, 833, 834, 835. 
 
 M0BT6A6OR AND SIOBTGAGEE — 
 
 to whom notice may be given, 831, 832. 
 
 assignment of policy, 802. 
 
 Novation — 
 
 creditors, 802. 
 
 840, 841. 
 
 estoppel, 803. 
 
 
 extent of interest, 803. 
 
 
 mortgage illegal, 803. 
 
 0. 
 
 premium, 802, 803, 804. 
 
 proceeds of policy, 803, 803. 
 
 
 MimjAl LSSUBEKS — 
 
 " One-thtrt) New fob Quo" — 
 
 accepting cash in lieu of premium note 
 
 OAIt 
 
 deducted from repairs, 843, 843. 
 
 805. 
 
 not deducted, 843, 844. 
 
 assessments, 804. 
 
 
 by-law, 804. 
 
 Onus Peobandi — 
 
 contracting with one of the body, 804. 
 
 194, 195, 454, 555, 724, 798, 1206, 1246, 1247, 
 
 creating member of corporation, 805. 
 
 1304, 1360, 1361. 
 
 declaring note due, 805. 
 
 insured, 847, 848, 849, 850, 851. 
 
 deposit note, 804 
 
 insurer, 844, 845, 846, 847. 
 
 increasing premium, 804. 
 
 Otheb Iksubance — 
 
 NETJTEAi PrOPERTT— 
 
 contract vitiated by, 851, 852, 853, 854, 855, 
 
 american, 814. 
 
 856, 857, 858, 859, 860, 861, 863. 
 
 documented, 814. 
 
 jury, 878, 879. 
 
 domicile, 814. 
 
 no efiect upon contract, 862, 863, 864, 865, 
 
 register, 814. 
 
 866, 867, 868, 869, 870, 871, 873, 873, 874, 
 
 warranty unsatisfied, 811, 813, 813, 814. 
 
 875,876,877,878. 
 
 warranty satisfied, 806, 807, 808, 809, 810. 
 
 
 
 OVKBLOADING — 
 
 
 879, 880. 
 
 N. 
 
 
 NEwTBrAM — 
 
 p. 
 
 cause for, 816, 816, 817. 
 
 
 limited to questions of damage only, 824. 
 
 Paid UP Policy — 
 
 no cause for, 818, 819, 820, 821, 823. 
 
 830,881. 
 
1567 
 
 INDEX TO CONTENTS. 
 
 1568 
 
 Parol Contkacts to Insukb — 
 
 invalid, 881, 882, 883, 884, 885, 886, 887. 
 valid, 888, 889, 890. 
 
 Pabticitlab Average and PAKTiAii Loss — 
 definition of, 889. 
 nonpartial on cargo, 891. 
 nonpartial on ship, 891. 
 partial on cargo, 891. 
 partial on ship, 889, 890. 
 rules for adjusting, 891, 893, 893. 
 
 Partnership — 
 
 sontinuing firm name, 894. 
 participation in profits, 894. 
 
 Payment — 
 
 what is not payment, 895, 896, 897, 898. 
 what is payment, 894, 895. 
 
 Payment op Mokey into Court — 
 effect of, 888, 889. ' 
 
 Payment of Premium. — 
 
 acknowledgment of in policy, 900, 901, 903. 
 
 bankruptcy of insurer, 945. 
 
 nonpayment determines contract, 939, 930, 
 
 931, 933, 933, 934, 935, 936, 937, 938, 939, 
 
 940, 941, 943, 943, 944, 945. 
 nonpayment does not affect contract, 909, 
 
 910, 911, 913, 913, 914, 915, 916, 917, 918, 
 
 919, 930, 931, 933, 933, 924, 925, 936, 937, 
 
 938, 939. 
 to whom payment may be made, 909. 
 war, effect of, 903, 904, 905, 906, 907, 908. 
 
 P11.OTA6B — 
 
 failure to take, defeats policy, 945, 946, 947. 
 failure to take, no defense, 947, 948. 
 pilot's negligence no defense, 948. 
 
 Pleading — 
 
 admission by, 976. 
 
 admissible under general issue, 965. 
 
 alienation, 965. 
 
 amounting to plea of general issue, 976. 
 
 answer, plea, replication or rejoinder, in- 
 sufficient, 963, 963, 964, 965, 966, 967, 
 968, 969, 970, 971, 973. 
 
 answer, plea, replication or rejoinder, 
 sufficient, 954, 955, 956. 
 
 application, 6.57, 659. 
 
 appointment of agent, 952, 958, 959, 963. 
 
 arrest of judgment, 961. 
 
 assessments, 954, 957, 958. 
 
 assignment, 964. 
 
 capital stock, 953. 
 
 christian name, 960. 
 
 Pleading — con. 
 
 charter of body corporate, 951. 
 
 commissioners, 952. 
 
 conditions of policy, 950. 
 
 copy of instrument, 957, 961. 
 
 damage by water or stolen, 961. 
 
 dates, 953, 978. 
 
 declaration, complaint, bill or petition, 
 
 insufficient, 956, 957, 958, 959, 960, 961. 
 declaration, complaint, bill or petition, 
 
 sufficient, 949, 950, 951, 953, 953, 954. 
 declaration of beneficiary, basis of the 
 
 contract, 951. 
 delirium tremens, 964. 
 departure, 963, 966. 
 discovery, 955. 
 double pleas, 955, 968. 
 "duly fulfilled all conditions," 951, 952, 958. 
 exhibits annexed to bill, 952. 
 evidence, 963, 979. 
 
 failure to deny execution under oath, 976. 
 failure to repair, 970, 971. 
 falling of building, 952. 
 fraud, 962, 969. 
 fraudulently, 964. 
 inconsistent counts, 979. 
 increase of risk, 971. 
 indorsement, 957, 961. 
 insurable interest, 953, 956, 957, 960. 
 interest at time policy made, 949. 
 invasion, 950. 
 jurisdiction, 978. 
 master, officers and crew, 958. 
 misrepresentation, 962. 
 motion, 969. 
 multifarious, 950, 955. 
 nearest magistrate, 949. 
 negligence, 961, 962. 
 nil debit, 964. 
 
 notice and proof of loss, 960. 
 " on 1,000 bushels of oats," 951. 
 ore terms, 978. 
 
 other insurance, 951, 954, 970, 971. 
 overvaluation, 964. 
 oyer, 951. 
 poor rates, 960. 
 premium note, 971. 
 presumptions, 977. 
 professing to answer whole, 966, 969. 
 prohibitory conditions, 949, 950. 
 rebuilding, 954 
 reply unnecessary, &J8. 
 seaworthiness, 969. 
 service of process, 958. 
 setoff, 954. 
 
 784 
 
1569 
 
 INDEX TO CONTENTS. 
 
 1570 
 
 PLEADrSG — con. 
 
 '" sixty days after proof," 959. 
 
 specially pleaded, 972, 973, 974, 975. 
 
 surplusage, 977. 
 
 title, 965. 
 
 total loss includes partial, 979. 
 
 traverse, 955, 966, 967, 968, 970, 973, 978. 
 
 uncertainty, 961. 
 
 unwritten agreement, 978. 
 
 viddieet, 978. 
 
 ■voyage, 961. 
 
 ■waiver, 951, 963. 
 
 ■warranties, 960. 
 
 worked by day only, 967. 
 
 ■written contract, 978. 
 
 PoucT — 
 
 attaching of, 980, 981, 983, 983, 984, 985, 
 
 986, 987, 988, 989, 990, 991, 993. 
 authority to procure, 980. 
 cause of loss, 1013, 1013,1014, 1015,1016, 
 
 1017, 1018. 1019, 1020, 1021, 1023, 1033, 
 
 1034, 1025, 1026, 1037, 1038. 1039, 1030, 
 
 1081,1032,1033. 
 damages, 1034, 1035, 1036, 1037, 1038. 
 interests, covered or not covered, 991, 992, 
 
 993, 994, 995, 996, 997, 998. 
 places, 999, 1000, 1001, 1002, 1003, 1004, 
 
 1005, 1006. 
 property, 1006, 1007, 1008, 1009, 1010, 1011. 
 revival of, 1047, 1048. 
 termination of, 1038, 1039, 1040, 1041, 1043, 
 
 1043, 1044, 1045, 1046. 
 
 Post of Dkchabgb — 
 1048, 1049, 1050, 1051. 
 
 Pbkmium Notes — 
 
 1051, 1053, 1053, 1054, 1055, 1056, 1057, 1058. 
 
 PEESKBVATIOIf OF PeOPERTY — 
 
 1058, 1059, 1060. 
 
 Prbsumptioxs — 
 corporation, 1060. 
 decrees, 1060. 
 depositions, 1061. 
 intention, 1061. 
 Lloyd's printed lists, 1061. 
 loss of ship, 1063. 
 missing ship, 1060, 1063. 
 particular meanings, lOGl. 
 rejecting claim, 1061. 
 seaworthiness, 1063. 
 ■voyage, 1060. 
 
 Prima Facik Case — 
 1063, 1063, 1064, 1065. 
 
 50 
 
 Prtncipal aivd Agent — 
 
 acceptance of order to pay claim, 1075. 
 acting in two capacities, 1077. 
 adjustment of claim, 1073, 1073, 1077. 
 agent can not contract in his own favor, 
 
 1084. 
 agent for both parties, 1088, 1095, 1096. 
 agent of agent, or subagent, 1078, 1079, 
 
 1083, 1083. 
 agent of insured, 1097. 
 agent's assurances, 1065. 
 agent's clerk, 1079, 1080, 1081. 
 agent's draft on principal, 1074. 
 agent's letters, 1074. 
 agent's promise, 1068, 1073. 
 agent's promise to renew, 1066, 1067. 
 agent's survey, 1067. 
 agreement to insure, 1065, 1066, 1067, 1069, 
 
 1077. 
 apparent or assumed authority, 1070, 1071, 
 
 1072, 1073, 1074, 1076, 1077, 1078, 1087, 
 
 1089, 1096. 
 application -written by agent, 1065, 1068, 
 
 1085, 1087. 
 appointment of appraisers, 1069. 
 arbitration, 1077, 1078, 1085. 
 assent to assignment, 1067, 1083, 1084. • 
 delivering policy after loss, 1077. 
 departing from instructions, 1068, 1070, 
 
 1071. 
 dispensing with or striking out printed 
 
 conditions, 1069, 1073, 1073, 1074, 1081. 
 evidence of authority, 1084, 1096. 
 extent of authority, 1070. 
 false matter in application, 1065, 106S, 
 
 1085, 1086, 1087. 
 forfeiture, 1075. 
 general agent, 1096. 
 guarantee, 1083. 
 increase of risk, 1075. 
 irregular acts of directors, 1070. 
 knowledge of agent, 1087, 1089. 
 lapsed policy, 1067. 
 liability of agent, 1093, 1093, 1094. 
 limitation of authority, 1065, 1085. 
 master's authority, 1095. 
 mistake of agent, 1071, 1088. 
 notice to agent, 1074. 
 order to cancel, 1071. 
 other insurance, 1070, 1077, 1079, 1081. 
 payment of premium, 1068, 1069, 1072, 
 
 1079, 1085, 1089. 
 permission is authority, 1067. 
 principal bound to afiBrm, 1073. 
 promissory note, 1086. 
 
 785 
 
1571 
 
 INDEX TO CONTENTS. 
 
 1572 
 
 Pbincipal and Agent — eon. 
 ratification, 1000, 1091. 
 removal of building, 1072. 
 revocation, 1091, 1092. 
 secretary's authority, 1083. 
 ship's agent, 1094, 1095. 
 simple or sealed instruments, 1075, 1076. 
 solicitor of applications and surveyor, 
 
 1078, 1079, 1080, 1085, 1088, 1089, 1090. 
 supplied with blank policies, 1068, 1069. 
 to receive applications only, 1078, 1079, 
 
 1086, 1087, 1089. 
 transferring corporate property, 1070. 
 waiver, 1065, 1076. 
 
 PnOFiTS — 
 
 insured as such, 1097. 
 insurers liable for, 1099, 1100. 
 insurers not liable for, 1097, 1098. 
 
 Prohibited Waters — 
 1100, 1101, 1102. 
 
 Proofs op Loss — 
 appraisement, 1144. 
 authority to waive, 1136, 1127, 1146. 
 copies of other policies, 1142. 
 defects or insufficiencies, 1112, 1113, 1114, 
 
 1115, 1116, 1117, 1118, 1119, 1120. 
 estoppel, 1138, 1139, 1140. 
 evidence, 1141, 1142. 
 insurers not precluded from requiring, 
 
 1110,1111,1112. 
 insurers precluded from requiring, 1105, 
 
 1100, 1107, 1108, 1109. 
 invoices, books and vouchers, 1142, 1143, 
 
 1144, 1145. 
 magistrate's certificate, 1132, 1138, 1134, 
 
 1135, 1136, 1137, 1138, 1145. 
 particular account, 1127, 1128, 1120, 1130, 
 
 1131, 1145. 
 sufficient, 1119, 1120, 1121. 
 time, 1121, 1122, 1123, 1124, 1125, 1126, 1146. 
 who may make, 1103, 1104, 1105. 
 
 Proximate Cause op Loss — 
 
 bad stowage, 1153. 
 
 careless use of lamp, 1153. 
 
 collision caused by officers' negligence, 
 1154. 
 
 condemned for want of ship's register, 
 1150. "" 
 
 documents found on board, 1147. 
 
 failure to repair, 1148, 1149. 
 
 fire might have been extinguished, 1151. 
 
 fire produced by carrying aqua fortis pro- 
 hibited by congress, 1154. 
 
 786 
 
 Proximate Cause op Loss — core. 
 
 gross carelessness, 1149. ' 
 
 gross negligence, 1153. 
 
 imperfect manifest, 1155. 
 
 inflammable matter on stove, 1148. 
 
 intoxication, 1151. 
 
 jumping on omnibus in motion, 1148. 
 
 master's ignorance, 1150. 
 
 master's imprudence, 1152. 
 
 negligence and design, 1157. 
 
 negligence of agent or servants, 1147, 
 
 1148, 1149, 1150, 1152, 1153, 1155. 
 negligence of crew, 1150, 1151, 1152, 1153, 
 
 1154, 1155. 
 negligence of insured, 1148, 1149. 
 negligence of wife, 1154. 
 negligent loading, 1156. 
 projecting arm from car window, 1147. 
 proximate cause of loss, 1156, 1157. 
 turpentine used to produce steam, 1146. 
 want of ordinary care, skill, attention and 
 
 seamanship, 1151. 
 willful act of master and crew, 1155, 1156. 
 
 E. 
 
 Bebuildino — 
 
 1158. 1159, 1160, 1161, 1162. 
 
 Referees — 
 1168, 1164. 
 
 Eepormation op Writtng — 
 admiralty, 1179. 
 allowed, 1165, 1166, 1167, 1168, 1169, 1170 
 
 1171, 1172, 1173, 1174 
 denied, 1175, 1176, 1177, 1178, 1179. 
 jurisdiction, 1179. 
 cnu» probandi, 1180. 
 
 Reinsurance — 
 
 assignment of policy, 1181. 
 
 costs and expenses of defending, 11^. 
 
 defenses, 1181, 1182, 1183. 
 
 insurable interest, 1181. 
 
 interpretation, 1182. 
 
 judgment against original insurer, 1182. 
 
 original policy, 1182. 
 
 parol agreement, 1181. 
 
 payable pro rata, 1184, 1185, 1186. 
 
 payment of loss, 1184. 
 
 proofs of loss, 1183, 1184 
 
 surrounding facts, 1182. 
 
 time policy, 1181. 
 
1573 
 
 INDEX TO CONTENTS. 
 
 1574 
 
 Removal op Cause — 
 
 completing removal of, 1192. 
 permitted, 1187, 1188, 1189. 
 refused, 1189, 1190, 1101, 1193. 
 
 EEStOVAL OF CfOODS — 
 
 1192, 1193, 1194, 1195. 
 
 Rbpresektations — 
 adjoining lands, 1198. 
 armament, 1197. 
 immaterial, 1198, 1199, 1200. 
 interpretation, 1196, 1198, 1203, 1201. 
 irresponsive answers, 1198, 1199. 
 material, 1196, 1197, 1198. 
 occupancy, 1196. 
 onus probandi, 1206. 
 rate of premium, 1198. 
 running ship, 1197. 
 safe on a day named, 1197. 
 sailing, 1197, 1205. 
 satisfied, 1200, 1201, 1202, 1203, 1206. 
 test of, 1206. 
 title, 1206. 
 unsatisfied, 1203. 
 watchman, 1196, 1205. 
 
 Bbfugxast Stiptjlations — 
 
 commencement and termination, 1207. 
 
 free from average, 1203, 1209. 
 
 gunpowder, 1215, 1216. 
 
 maturity of claim, 1208. 
 
 other insurance, 1210. 
 
 property insured, 1211, 1213, 1313, 1214, 
 
 1215. 
 reinsurance, 1210. 
 territorial limits, 1210. 
 warranties, 1207, 1206. 
 
 Bescission — 
 
 agent order to cancel, 1218, 1319, 1220. 
 
 bankrupt insurer, 1216. 
 
 credit given for return premium, 1217. 
 
 fitiudnlent contract, 1224. 
 
 good faith, 1324. 
 
 increasing premium, 1216. 
 
 notice by mail, 1217. 
 
 oflfer to return premium, 1324, 1325. 
 
 overdue assessments, 1316, 1217. 
 
 proposal made by insured, 1218. 
 
 reasons for, assigned, 12S4. 
 
 refunding unearned pseminm after loss, 
 
 12W, 1222, 1233. 
 resolutions of directors, 1217, 1232. 
 right to, 1225. 
 threatened danger, 1223, 1333. 
 
 Bescission — con. 
 
 unexecuted agreement, 1221, 1222. 
 
 verbal notice, 1217. 
 
 waiving payment of return premium, 1220. 
 
 Res JtJDiCATA — 
 
 discontinuance, 1336. 
 
 in name of one who had no right to sue, 
 
 1326. 
 merits, 1226. 
 set off, 1225, 1226. 
 total loss, 1235. 
 want of prosecution, 1336. 
 
 Retdkn PRBSnXTM — 
 
 allowed, 1336, 1337, 1238, 1339, 1380, 1331. 
 denied, 1231, 1233, 1333, 1334, 1335. 
 
 s. 
 
 Saiuiig op Vessel — 
 no sailing, 1238, 1230. 
 representation, 1240. 
 sailing, 1236, 1237, 1238. 
 
 Sealed Instruments — 
 1241. 
 
 Seamen — 
 1341, 1343. 
 
 Seawokthinbss — 
 
 admitted, 1344, 1246. 
 
 attaching of policy, 1346. 
 
 decree of court of admiralty, 1349. 
 
 floating dock, 1343. 
 
 implied, 1343, 1343. 
 
 in port, 1243. 
 
 jury's finding, 1270. 
 
 missing ship, 1346. 
 
 not implied, 1344. 
 
 onus probandi, 1346, 1347. 
 
 pleading, 1270, 1271. 
 
 presumptions, 1246, 1247, 1248, 1349. 
 
 prima fade, 1248. 
 
 repaying passage money, 1349. 
 
 salvage, 1343. 
 
 seaworthy, 1349, 1350, 1351, 1333, 1353, 
 
 1254, 1353, 1336. 
 subsequent unseaworthiness, 1263, 1264, 
 
 1305, 1366, 1267, 1308, 1369. 
 time policy, 1343, 1344, 1345. 
 unseaworthy. 1356, 1257, 1358, 1350, 1260, 
 
 1261, 1303, 1263. 
 
 787 
 
1575 
 
 INDEX TO CONTENTS. 
 
 1576 
 
 SeKTEKCB of COKDEJDfATION — 
 
 conclusive, 1271, 1273, 1273. 
 nonconclusive, 1273, 1274, 1375, 1276, 1277, 
 1378, 1279, 1380, 1381. 
 
 Sertice of Pbocess — 
 invalid, 1383. 
 substituted, 1281. 
 valid service, 1282. 
 
 Setoff — 
 
 allowed, 1283, 1284, 1285, 1286, 1287. 
 denied, 1287, 1288, 1289, 1290, 1291. 
 pleading, 1291, 1292. 
 
 "Ship OB Ships" — 
 1292, 1293. 
 
 Ship Owkek's T.ta-rtt.ttv — 
 1393. 
 
 Sickness, Disease, oe Employment of a 
 Physician — 
 anthrax, 1308. 
 billions, 1305, 1306. 
 bleeding of lungs, 1296. 
 blood letting, 1310. 
 bronchitis, 1295. 
 conjunctitis, 1302. 
 consumption, 129.'), 1306. 
 determination of blood, 1310, 1311. 
 dyspepsia, 1305. 
 
 employment of physician, 1304. 
 epilepsy, 1305. 
 expectoration, 1306. 
 fall, 1304. 
 good health, 1301. 
 imbecile, 1307. 
 insanity, 1302. 
 interpretation, 1303, 1304 
 intoxication, 1307. 
 irritative fever, 1308. 
 jury's finding, 1300, 1310. 
 leeches, 1306. 
 local disease, 1397. 
 loss of speech, 1307. 
 materiality, 1394, 1395, 1296, 1297, 1302, 
 
 1303. 
 medical attendance, 1295, 1298, 1299, 1306, 
 
 1307. 
 onve probandi, 1304 
 opium eater, 1309. 
 
 ordinary indisposition, 1301, 1302, 1305. 
 paralysis, 1294 
 pharyngitis, 1303. 
 
 post mortem examination, 1304, 1307. 
 preponderance of evidence, 1296. 
 788 
 
 Sickness, etc. — eon. 
 
 pulmonary, 1310, 1311. 
 
 pyoemia, 1304. 
 
 relation's health, 1397. 
 
 refused by other insurers, 1297. 
 
 retention of urine or feces, 1305. 
 
 rupture, 1294. 
 
 spitting of blood, 1295, 1306, 1308. 
 
 subacute rheumatism, 1297, 1304, 1305. 
 
 temporary indisposition, 1300, 1304, 1805. 
 
 tending to shorten life, 1298. 
 
 tubercles, 1297. 
 
 tumor, 1307, 1808, 1309. 
 
 volunteer information, 1300. 
 
 SPEciAi Findings — 
 1311, 1312, 1313, 
 
 Stamps (Revende) — 
 1313, 1314 
 
 Statutes — 
 
 apppointment of agent, 1315, 1316, 1317, 
 
 1318, 1319. 
 conflicting, 1330. 
 construction, 1320. 
 frauds, 1331, 1333. 
 limitations, 1320, 1331. 
 repealing, 1319. 
 void statutes, 1322. 
 
 Stbandikg — 
 
 no stranding, 1326, 1327. 
 stranding, 1323, 1324, 1325. 
 
 SUBKOGATION — 
 
 allowed, 1328, 1339, 1330, 1331, 1333, 1333, 
 
 1334 
 denied, 1334, 1335, 1336, 1337, 1338, 1339, 
 
 1340, 1341, 1342, 1343, 1344, 1345, 1346, 
 
 1347, 1348, 1349, 1350, 1351, 1353, 1353, 
 
 1354, 1355. 
 
 Suicide, ob Death by His Own ELabs — 
 construction, 1361, 1363. 
 death by his own hand, 1359, 1360. 
 impelled by insanity, 1355, 1356, 1357, 1358 
 
 1359. 
 onus probandi, 1360, 1361. 
 presumptions, 1360. 
 
 T. 
 
 Taxation — 
 
 1362, 1363, 1364. 
 
 Tbhdkb — 
 1364 
 
1577 
 
 INDEX TO CONTENTS. 
 
 1578 
 
 Territorial Limits — 
 1365, 1366, 1S67. 1368. 
 
 Theft asd Robbery — 
 136S, 1869, 1370, 1371. 
 
 TiMB — 
 
 computiug, 1371, 1373, 1873. 
 
 TmuB — 
 
 bequest, 1379. 
 
 change of title or interest, 1884, 1385, 1886, 
 
 1887, 1388, 1389, 1390. 
 chattel mortgage, 1384. 
 contract to purchase, 1376, 1377, 1879, 
 
 1382,1384. 
 dissolution of firm, 1388, 1889. 
 equitable merely, 1380. 
 equity of redemption outstanding, 1874. 
 evidence, 1380. 
 fbe simple, 1374. 
 his buildings, 1378. 
 his own, 1374. 
 husband, 1379. 
 judgment record, 1380. 
 knowledge of agent, 1875. 
 leasehold interest, 1374. 
 lien for purchase money, 1381. 
 mortgage, 1382. 
 mortgage in fee, 1384. 
 must be disclosed, 1373, 1874. 
 mutual insurers, 1383. 
 not warranted, 1377, 1378. 
 oral agreement to purchase, 1381. 
 " owner," or " owned and occupied," 
 
 1378. 
 pleading, 1390. 
 possession, 1380. 
 reviwil of policy, 1378. 
 sale by one to another co-partner, 1390. 
 tax sale, 1383. 
 
 tenant by the courtesy, 13S3. 
 unnecessary to disclose, 1374 
 voidable conveyance, 1380. 
 warranted, 1375, 1376. 
 warranty satisfied, 1378, 1379, 1380, 1881. 
 warranty unsatisfied, 1381, 1883, 1383, 
 
 1384. 
 
 To Recover Money Back — 
 
 insufScient to maintain the action, 1393, 
 
 1394, 1395. 
 pleading, 1391. 
 
 sufficient to maintain the action, 1391, 
 1392, 1393. 
 
 Total Loss (Absolute or CossTBrcTivE) — 
 
 capture, seizure, arrest, detention or retar- 
 dation, 1403, 1403, 1404, 1405, 1406, 1407, 
 1408, 1409, 1410, 1411, 1412, 1418, 1414, 
 1434, 1425, 1426, 1437^ 1438, 1429, 1430, 
 1431, 1433. 
 
 damage, difficulty or inability to procure 
 repairs, 1434, 1435, 1436, 1437, 1438, 1439, 
 1440, 1441, 1442, 1443, 1444. 
 
 Master's sale, 1396, 1397, 1398, 1399, 1400, 
 1402. 1418, 1419, 1430, 1421, 1423, 1423, 
 1424. 
 
 missing ship. 1417, 1418, 1433, 1434. 
 
 perUs of the sea, 1414, 1415, 1416, 1417, 
 1433, 1433. 
 
 Tratelikg by Prtvatb or Public CJosvey- 
 
 ANCB — 
 
 1445. 
 
 u. 
 
 Ultra VrRES — 
 1446, 1447. 
 
 Uktil Safely Moored — 
 1448, 1449. 
 
 Usage and Custom — 
 
 1448, 1449, 1450, 1451, 1453, 1453, 1454. 
 
 Use and Occupation (Prohibited) — 
 altering building, 1457. 
 bams, 1468. 
 carpenter shop, 145C. 
 currying, 1457. 
 
 change of occupants, or tenants, 1457, 1459. 
 change of use, 1458. 
 employment of carpenter, 1458. 
 erecting adjacent buildings, 1459. 
 failure to procure license, 1465. 
 grocery, 1456. 
 hat bleaching, 1457. 
 hay and straw, 1459. 
 hazardous, 1455. 
 
 incidental to business, 1459, 1460. 
 joiner's shop, 1456. 
 liquor store, 1455. 
 manufactory, 1455. 
 putting together and finishing chairs, 
 
 1454.1455. 
 repairs, 1458. 
 stable. 1455, 1456. 
 temporary use, 1458. 
 
 789 
 
1579 
 
 INDEX TO CONTENTS. 
 
 1680 
 
 V. 
 
 Valid and Void Policies — 
 • valid, 1460, 1461. 
 void, 1461, 1463, 1463. 
 
 Valued Policy — 
 
 conclusive valuation, 1467, 1468, 1469, 1470, 
 
 1471, 1472, 1473, 1474, 1475, 1476, 1477. 
 not valued, 1465, 1466. 
 valuation opened, 1477, 1478, 1479, 1480. 
 valued, 1463, 1464, 1465. 
 
 Verdict — 
 
 affidavits of jurors, 1481. 
 amendments, 14S1. 
 cured by, 1481, 1483. 
 Invalid, 1481. 
 sufficient finding, 1480, 1481. 
 
 Void in Past, Valid in Pabt — 
 1483, 1^4. 
 
 Von) IN Pakt, Void in Toto — 
 667, 1485, 14S6. 
 
 Voyage iNstntED — 
 
 not the voyage insured, 1488, 1489, 
 onus probandi, 1489. 
 sailing on the, 1487, 1488. 
 
 w. 
 
 Waiver — 
 
 acceptance of premium, 1493. 
 
 authority, 1492. 
 
 by-law, 14S0. 
 
 evidence of, 1493. 
 
 failure of directors to approve risk, 1490. 
 
 incumbrance, 1491. 
 
 magistrate's certificate, 1493. 
 
 parol waiver prohibited by printed con- 
 ditions, 1489, 1490. 
 
 promise to pay claim, 1489, 
 
 unanswered questions set out in applica- 
 tion, 1491, 1493. 
 
 use of premises by former brought home 
 to insured, 1493. 
 
 Warranted Free From Average — 
 charges in general average, 1500. 
 change of flavor, 1495. 1496. 
 790 
 
 Warranted Free From Average — con. 
 corn, 1494. 
 dampness, 1495. 
 dockage, 1498. 
 evidence, 1500. 
 fruit, 1494. 
 furs, 1495. 
 freight, 1498. 
 hides, 1495. 
 
 interpretation, 1499, 1500, 1504, 1512. 
 leakage, 1495. 
 malt, 1494. 
 
 one-third new for old, 1498. 
 part saved, 1500, 1501, 1502, 1503, 1504^ 
 
 1505, 1506, 1507, 1508, 1509, 1510. 
 perishable in their own nature, 1494. 
 pink root, 1495. 
 respondentia, 1497. 
 rice, 1494. 
 sacrifice, 1503. 
 
 several losses on one voyage, 1496. 
 ship, 1496. 
 teas, 1496. 
 
 "total loss only," 1497, 1499. 
 valuation, 1498. 
 
 Warranties — 
 
 ashes, 1536, 1527. 
 
 books of account, 1524. 
 
 buckets of water, 1519. 
 
 cargo, 1519. 
 
 construction of buildings, 1519, 1526. 
 
 distinction between representations and 
 
 warranties, 1528. 
 master and crew, 1513. 
 national character, 1515, 1526, 1537. 
 pump, 1516, 1517, 1526. 
 recitals, 1529. 
 
 ship's armament, 1518, 1536, 1527. 
 ship's name, 1519. 
 smoking, 1536. 
 tests, 1528. 
 
 trade and employment, 1514, 1519. 
 unsatisfied warranties, 1527. 
 use and occupation, 1515, 1516, 1520. 
 vocation, 1524. 
 volunteer statements, 1525. 
 warranties satisfied, 1526. 
 watchman, 1517, 1518. 
 working of mill, 1533, 1533, 1534. 
 water supply, 1516, 1517, 1518. 
 
 Wife's Policy — 
 
 assignment of, 171, 1532, 1533, 1584. 
 bankruptcy of husband, 1531. 
 
1581 
 
 INDEX TO CONTENTS. 
 
 1582 
 
 Wife's Policy — con. 
 
 
 WiFB's PoMCT — con. 
 
 creditors of husband, 1530. 
 
 
 insolvent debtor, 1530. 
 
 descent, 401, 1532. 
 
 
 marriage must be proved, 1532. 
 
 divorce, 449. 
 
 
 nuncupative will, 1530. 
 
 husband survives, 1539, 1530. 
 
 
 payable to her husband or his heirs, 1531. 
 
 in case of her death, payable 
 
 to her chil- 
 
 payable to wife's heirs, 1531. 
 
 dTen,1533. 
 
 
 surrender by husband, 1580. 
 
 791