Cornell University Law Library FROM THE BENNO LOEWY LIBRARY RECEIVED BY CORNELL UNIVERSITY UNDER THE WILL OF MR. BENNO, LOEWY Cornell University Library KD 1859.P84 The laws of insurance :fire life accid 3 1924 022 384 238 (UnrttpU ICaui irl^onl Sitbraty Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022384238 THE LAWS OF INSURANCE. BALLANTYNE, HANSON AND CO, EDINBURGH AND LONDON THE LAWS OF INSURANCE FIRE, LIFE, ACCIDENT, AND aUARANTEE. EMBODYING CASES IN THE ENGLISH, SCOTCH, lEISH, AMERICAN AND CANADIAN COURTS. BY JAMES BIGGS PORTER, OP THE INNEB TEMPLE, AND SOClH-BASTS^N CIRCUIT, BAKKISTER-AT-LAW. LONDON: STEVENS AND HAYNES, BELL YARD, TEMPLE BAR. 1884. is.n'^ii' PREFACE. None of the English writers on the Law of Insurance treat in one volume of Life, Fire, and Accident Insurance ; and, moreover, important principles of the Law — such as Subrogation and Indemnity — have been much elucidated by recent decisions. It has therefore seemed to the author that a book of moderate size, con- taining in one volume the whole Law of Insurance (excepting Marine), viz., lAfe, Fire, Accident, and Guarantee Insurance, might at the present time be for the convenience of the profession. Many questions relating to Insurance have been litigated in America that have not come before the courts of this country, and abundant reference has been made to the American deci- sions, as well as to Scotch and Irish cases ; and the English cases have been brought down to the latest date. The list of cases thus comprises upwards of Vl PEEFA9K. 1400, and where a case has appeared in more than one set of reports, references to other reports are given. The statutes referred to throughout the book are mentioned in the Index. The author's thanks are due to Mr. W. F. Craies, M.A., Barrister-at-Law, for his very efficient assistance throughout the work. 8 Fig-Trbe Court, Temple, October 1884. COJN-TEE-TS. I. NATUEE OP THE CONTRACT OF INSUEANOE THE CONTRACT OF INSURANCE , II. INSURABLE INTEREST . III. THE PREMIUM .... IV. THE RISK .... V. GENERAL INQUIRIES MADE BY INSURERS VI. ■WARRANTY .... VIL MISREPRESENTATION AND CONCEALMENT VIII. CONDITIONS IN POLICIES IX ARBITRATION .... X. INDEMNITY .... XI. CONDITIONS AS TO AVERAGE XIL OPTION TO REINSTATE XIII. RE-INSUEANCE . XIV. OBLIGATION OF TENANTS TO INSURE XV. MORTGAGE .... XVI. FIRE POLICIES AND ASSIGNMENT XVII. DISPOSITIONS OF LIFE POLICIES . XVin. LIEN ..... XIX. CONFLICTING CLAIMS . PASES I-20 20-34 35-71 72-95 96-132 133-138 139-145 146-157 158-200 201-211 212-233 234-238 239-246 247-255 255-268 269-284 285-293 294-337 338-344 345-346 VIU CONTENTS. CHiP. PAGES XX. COMPANIES ..... 347-373 XXI. EIGHTS OP POLICY-HOLDERS. . . 374-3^8 XXIL NOVATION AND AMALGAMATION . . 389-4OO XXIII. ^OEEIGN COMPANY .... 40I-408 XXIV. AGENTS ..... 409-43O XXV. ACCIDENT ..... 431-450 XXVL GUARANTEE INSURANCE . . . 4SI-4S7 XXVn. BANKRUPTCY ..... 458-463 XXVIIL THELLUSON AND SUCCESSION DUTY ACTS . 464-466 INDEX ...... 467 LIST OF CASES. Abbot v. Howard, 137 ' Abrahams v. Agricultural Mutual Co., 165, 186 Accidental Death Co., Re, 379, 384, 387 Acey V. Femie, 77, 93 Adam's Policy Trusts, 317, 321, 322 Agar V. Athenaeum Co., 359, 360, 409 Agriculturist Cattle Co,, Ee, 384 Aitchisou V. Lohre, 2, 12, 121, 122, 214 Albert Life Assurance Co., Re, 459 Albert v. Bank of London, 392 Albert v. Medical, 392 Albion Life Co., Re, 376 Albion Co. v. Mills, 22, 406, 424, 427 Alchome v. Savile, 244 Aldebert v. Leaf, 378, 384 Alexander v. Campbell, 208 Allan V. Marklaud, 52, 262 Allen's Case, 399 Alley ne v. Darcy, 346 Alleyne v. Quebec Co., 244 Allkins V. Jupe, 83, 219 American Basket Co. v. Farmville Insurance Co., 62 Ames V. Richardson, 281 Amicable Co. v. BoDand, 126, 129 Amiss V. Witt, 295 Anchor Insurance Co., Re, Ex parte Badenoch, 397 Anderson v. Edie, 68 Andersons. Fitzgerald, 87, 140, 14 1, 304. 439 Anderson v. Morice, 47, 54, 65 Anderson v. Pacific Co., 142 Anderson v. Thornton, 74, 86 Andree v. Fletcher, 83 Andrew v. Ellison, 382 Andrew's Case, 400 Andrews' and Alexander's Case, Re London Marine Insurance Co., 38s Andrews, Ex parte, 65, 66, 329, 331, 333 Andrews v. Bonsfield, 301 Anglo - Australian Co. v. British Provident Co., 392 Anglo- Australian Co., Ex parte, 392 Appleby v. Myers, 62 Arohambault v. Lamere, 225 Armitage v. Winterbottom, 52, 57, 65 Armstrong and Byrne, Re, 299 Armstrong o, Turquand, 75, 158, 197 Arthur Average Association, Re, see Cory and Hawksley's Case, 353, 357, 359 Arthur Average, &c., No. 2, 384 Arthur v. Wynne, 309 Ashford v. Victoria Mutual Co., 421 Ashley v. Ashley, 40, 294, 307 Ashworth v. Munns, 354, 367, 368 Athenaeum Co., Re, Ex parte Prince of Wales Co., 248, 356, 378, 382-384 Athenseum Co., Re, Ex parte Eagle Co., 356, 378, 380 Athenaeum Co. v. Pooley, 88, 359, 362, 412 Atkins V. Arcedeckne, 332 Atkinson v. Newcastle, n 2 Att.-Gen. v. Abdy, 310 Att.-Gen. v. Rowsell, 310 Attwell V. Western Co., 168, 169 Austin r. Dre we, 109, 110, 113 b LIST OF CASES. Australian Agricultural Co. v. Saunders, 167 Ay 1 win v. With, 339 Babbage v. Ooulburn, 203 Babcock v. Montgomery Fire Co., 109, 113, 117 Badenoch, Ji'x parte, Re Anchor Assurance Co., 397 Baile v. St. Joseph Fire Co., 171 Bailey v. Gould, 65, 66 Baker v. Holtzappel, 267 Baker v. Langhorn, 410 Baker v. L. S. W. K, 416 Baldwin v. Billingsby, 301 Baldwin v. New York Life, 1 99 Balfour V. Ernest, 35 S Ball V. Storie, 24 Bank of N. S. W. See New South Wales Bank Bank of Toronto v. European Assur- ance, 451 Banting v. Niagara District Fire Co., 188 Barclay v. Cousins, 41 Bargate v. Shortridge, 359 Barker v. Janson, 4 Barker v. Walters, 85 Barr's Trusts, 298 Barret v. Jermy, 165 Barron v. Fitzgerald, 71 Barry, MxparU, 458 Barsalou v. Royal Insurance Co., 153 Bartlett's Case, 398 Barton v. Gainer, 296, 3 12 Basch V. Humboldt Mutual, 74 Bashford v. Cann, 328, 329, 334 Bassil V. Lister, 464 Batenian, Ex parte, 268 Bateman v. Service, 401, 406 Bates V. Hewitt, 96, 105, 155, 157 Bath's Case, 376 Baxendale v. Harding, 106 Bayton Insurance Co. v. Kelly, 73 Beacon Fire Co. v. Gibb, 112, 162, 198 Beals V. Home Insurance Co., 245 Bean v. Stupart, 139, 140, 145 Beck's Case, 396 Beebee v. Hartford Fire Co., 114 Beer v. London and Paris Hotel Co., 358 Belfour v. Weston, 267 Bell's Case, 384 Belli). Lycoming Fire, 181 Bellamy v. Brickenden, 271, 278 Benham v. United Guarantee Co., 141, 142, 455 Benson v. Ottawa Co., 159 Beresford !>. Beresf ord, 314-316 Bermon v. Woodbridge, 81, 82 Berndston v. Strang, 344 Bigelow V. Berkshire Co., 129 Bignold V. Audlaud, 345 Bilbie v. Lumley, 154 Bill V. Darenth Co., 359 Billington ». Provincial Co., 16S, 169 Bishop V. Scott, 375 Bisset V. Royal Exchange Co., 195, 212, 242 Blackett v. Royal Exchange, 32 Bleakley v. Niagara District Co., 421 Blood, Ex parte, 399 Blundell's Case, 389 Boardman v. Merrimack Co., 34 Bodine v. Home Insurance Co., 73 Boehm v. Bell, 49 Boehm v. Coombe, 97, 113 Boldero v. H. E. L C, 348 Bolland v. Desney, 126 Bolton V. Ferro, 460 Bondrett t). Hen tig, 121 Borradaile ». Hunter, 126,127 129, 308 Boswell V. Coaks, 334 Bourne's Case, 386 Bowes V. Hope Life Co., 354, 380 Bowes V. National, 181, 182 Bowes V. Shand, 32 Bowring's Case, 389 Boyd V. Dubois, loi Bradbum v. G. W. R., 19, 219, 43 1 Bradley v. Mutual Benefit Life, 1 26 Brady v. North- Western Insurance Co., 244 Branford v. Saunders, 49, 68, 69 Braunstein v. Accidental Death Co., 20s, 356, 448 Breasted v. Farmers' Co., 127, 129 Brice v. Bannister, 296 Bridger's and Neil's Cases, 365 Bridges v. Garrett, 415 Bridges v. Longman, 265 ] LIST OF CASES. XI Brinley v. National Co., 245 British American Insurance Co. v. Joseph, 104, 105 British Equitable v. G. W. E.., 33, 153, 304, 311 British Industry Co. v. Ward, 75, 77. 159 British Provident, lie, 392, 393 Britton v. Royal, 108. 1 16, 190-193 Bromley ■». Smith, 308 Brook V. Stone, 271, 278, 336 Brown, Ex parte, 306 Brown's Claim, 88 Brown's and Tylden's Case, 365, 385 Brown v. Brown, 342 Brown v. Freeman, 328-330 Brown V. Overbury, 202 Brown v. Price, 336 Brown v. Quilter, 275 Brown v. Royal Insurance Co., 196, 244, 245 Bruce v. Garden, 327-330 Bruee v. Gore District Co., 169 Bruce V. Jones, 2 1 7 Buchanan v. Exchange Co., l6l Bufe V. Turner, 102, 114, 152 BufEum V. Fayette Mutual Co. , 93 Buist V. Scottish Equitable, 33, 74 Bulkeley v. Schultz, 402, 406 Bullock V. Domitt, 259, 261 Burberson v. Hall, 296 Burgess v. Eve, 452 Burgess and Stock's Case, 88, 95, 381, 424 Burnand v. Rodocanachi, 218, 222, 226 Burridge v. Row, 308, 340 Burrows v. Lock, 301 Burton v. Gore District Co., 225, 290 Bushnan v. Morgan, 346 Busk V. Royal Exchange Co., 113 Busteed v. West of England Co., 93, 344. 416, 418 Butler t). Standard Co., 46, 105, 156 Butterworth v. Western Insurance Co., 419 Byrne v. Muzio, 451-453 Cahen v. Continental Life, 145 Cain V. Lancashire Co., 99 Caldwell, i,'x parte, 303 Caldwell v. Dawson, 333 I Calhoun v. Union Mutual Co., 419 Camden v. Anderson, 62 Cameron v. Monarch Co., 186 Cameron v. Times and Beacon Co., 185 Campbell v. French, 183 Campbell v. Liverpool and Co., 163 Campbell v. National Co., 78, 411 Campbell „. Victoria Mutual Co., I'S Canada Insurance Co. v. Northern Co., 252, 254 Canada Insurance Co. v. Western Co., 417 Canada Agricultural v. Canada Mutual Fire Co., 158, 166, 176, 190 Canada Landed Credit v. Canada Agricultural, 176, 190 Cann v. Imperial Fire, 190 Carington v. Commercial Fire, 248, 249 Carpenter v. American Co., 429 Carpenters. Providence Washington Co., 67, 169 Carpenter v. Queen's Proctor, 457 Carrigan v. Lycoming, 34 Carruthers v. Shedden, 45, 55 Carter v. Boehm, 9, 87, 1 14, 148, 156, 157 Carter v. Niagara Dist. Co., 188 Cases;. Hartford Co., 112, 119 Casey v. Goldsmid, 155 Cashau v. N. W. National Co., 180, 248, 250 Cashman v. London and Liverpool, 156, 160 Castellain v. Preston, 2, 4-6, 50, 51, 52, 174, 212, 213,218, 222, 224, 225, 240, 256, 268, 270, 280, 290, 344 Castling v. Aubert, 343 Cathcart's Trustees v. Heneage's Trustees, 464, 465 Cathie's Case, 365 Cattlin V. Springfield Co., 105 Cazenove v. British Equitable Co , 13s. 152 Chalmers v. Mutual Fire Co , 168, 422 Champlin v. Railway Passengers' Co., 441, 445 Xll LIST OF CASES. Chandler v. Worcester Co., lo Chapin v. Fellows, 295, 316 Chapman v. Besnard, 34S Chapman v. Chapman, 342 Chapman v. Fraser, 85 Chapman, v. Lancashire Co., 168, 186 Chapman v. Pole, 191-193 Charles v. Altin, 264 Charlestown, &c., Co. v. Fitchburg, &e., Co., 97 Charlton v. Driver, 264 Charter Oak Co. v. Brant, 316 Chattock V. Shaw, 136, 144 Chesterfield v. Bolton, 259 Chisholm v. Provincial Insurance Co., IIS Chown V. Bay lis, 313 Christie v. North British Co., 22, 424 Cinq Mars v. Equitable Co., 179, 188 City Bank v. Sovereign Life Co., 131. 177 City Fire Co. n. Corlies, 112, 118 Citizens' Insurance Co. v. Parsons, 167 Claper&de v. Commercial Union, 62 Clack V. Holland, 315, 339 Clark V. Blything, 173, 219 Clark V. Scottish Imperial, 48, 66 Clark V. Western Co., 61 Clark's Exors'. Case, 363 Clarke v. Dixon, 34 Clay V. Harrison, 55, 70 Clegg's Case, 398 Clift V. Schwabe, 128 Clough V. L. N. W. R., 217 Cobb «. N. B. M. Marine, 209 Cobbe's Policy, 345 Cocker's Case, 396 Coggs V. Bernard, 56 Coghlan's Case, 380, 389 CoUett V. Morrison, 22, 24, 65, 84, 314 CoUingridge v. Royal Exchange, 63, 64, 224, 290 Collins V. Locke, 203, 205 Colmore v. North, 456 Colonial Mutual Co., He, 369 Columbia Fire Co. v. Lawrence, 63, "3. 271 Comey v. Harvey, 74, 75 Commercial Union v. Canada Min- ing Co., 173 Commercial Union v. Lister, 5, 221, 222, 282 Commercial Mutual v. Union Mutual, 20 Compagnie d' Assurance v. Gram- mon, 75 Connecticut Co. v. Burroughs, 308, 322, 323 Connecticut Co. v. Moore, 135-137. 150. 430 Conquest's Case, 397 Conway v. Gray, 52 Conway v. Britannia, 296, 342 Cook V, Black, 131 Cook V. Field, 47 Cooke V. Cooke, 204 Cooper V. Massachusetts Co., 12S Cooper V. Pacific Mutual Co., 98 Cope V. Rowlands, 83 Copp V. Lynch, 429 Cornell v. Liverpool,' London, &c , Co., 178 Corrinay v. Gray, 52 Cory and Hawksley's Case, 353, 357, 359 Cotton States Life Co. v. Lester, 89 County Life, Se, 356 Courtenay v. Ferrers, 307, 316 Courtenay v. Wright, 327, 330 Cox V. Hickman, 375 Cray v. Hartford Fire Co., 177 Critchett 0. American Insurance Co., 418 Croft V. Lindsay, 66 Crofts V. Marshall, 31 Crokatt v. Ford, 25, 346 Cromwell v. Royal Canadian Insur- ance Co., 402 Crossley v. City of Glasgow Co., 303 Crowley v. Agricultural Mutual Co., 191 Crowley «,. Cohen, 37, 45, 56, 97- 99, 238, 247, 293 Crozier v. Phoenix Co., 46, 105 Culbertson v. Cox, 1 74, 292 CuUen V. Thomson's Trustees, 423 Cunard v. Hyde, 44 Curry v. Commonwealth Co., 114 Curtius V. Caledonian Co., 303 Cusaok V. Mutual Co., 54 LIST OF CASES, Xlll Dapoe v. Johnstown District Co. , 1 70 Daintree's Claim, 200 Dalby v. India and London Life Co. , 14, 17. 18. 294 Dale's Case, 400 Dalgleish v. Buchanan, 61, 427 Dalgleish v. Jarvie, 146 Dalzel V. Mair, 74 Daroy v. Croft, 315, 341 Darnell's Case, 365 DarreU v. Tibbits, 4, 221, 222, 260, 261, 267, 281 Davies v. Home Insurance Co., 69 Davies v. Trustees of Madras Fund, 348 Dawson v. Fitzgerald, 203 Day V. Connecticut Co. , 95 Day, £x parte, 328 Dayton Insurance Co. v. Kelly, 73 Dear v. Western Insurance Co., 176 Dearie v. Hall, 343 De Costa v. Scaudret, 85, 86 De Forest v. Fulton Fire Co., 45, 57, S8 De Gamiude v. Pigou, 74 Delany v. Stoddart, 286 Delaware County Co. v. Quaker City Co., 221 Denham v. United Guarantee, 147 Deposit and General Life Co. v. Ayscough, 366 Desborough v. Harris, 382 Devaux v. 1' Anson, 41 Devlin v. Queen Insurance Co., 9, 10 De Winton's Case, 88 Dickinson v. Jardine, 217, 222 Dickson v. Provincial Insurance Co., 170 Dighy V. Atkinson, 259, 260 Dill V. Quebec Assurance Co., 182 Dillard v. Manhattan Life Co. ,199 Dixon V. Stansfeld, 343 Dobson V. Land, 276, 278 Dobson V. Sotheby, loi, 113, 153, 163, 259 Doe V. Gladwin, 261, 265 Doe V. Peck, 264 Doe V. Bowe, 265 Doe V. Shewin, 262 Doe V. Sutton, 265 Doe V. TJlph, 264 Doe d. Pitt V. Laming, 107, 163 Dorien v. Positive, 89 Dormay ii. Borradaile, 132, 304, 308, 336 Doming' s Case, 394, 398 Douglas V. Murphy, 261, 263 Dowker v. Canada Life Co., 85, 87 Downes v. Green, 43 Dowse's Case, 396, 400 ' Drinkwater v. London Assurance, n8, 172 Drysdalea Pigott, 327,329, 330, 335 Ducketti). WUliams, 86, 87,143, 146, 154 Dudgeon v. Pembroke, 25, 44, 102 Dufaur v. Professional Life Co., 127, 128, 312 Duff V. Fleming, 52, 262 Dumas v. Wylie, 428 Dunnage v. White, 159 Dupre's Exors'. Case, 398 Durham's Case, 383, 384 Durrant v. Friend, 292 Duval V. Northern Co., 414 D wight V. Germania Co., 145 Dwyer v. Edie, 44, 68, 70 Eagle, Exparte,Re Athemevaa Life, 356, 378, 380 Eastern Counties Railway v, Hawkes, 361 Eastwood V. Kenyon, 451 Easum's Case, 364 Ebsworth v. Alliance Marine Co., 49> 52, S3. 270 Edge V. Duke, 75 Edwards v. Aberayron Mutual, 202, 203 Edwards v. Barrow, 138 Edwards v. Insurance Co., 180 Edwards v. Martin, 413 Edwards v. Warden, 348 Edwards v. West, 63, 242 Elliot V. Eoyal Exchange Co., 189, 203 Ellis V. Kreutzinger, 343 Ely V. Positive Co., 359 Emmett, Jie, 33 1 England v. Ld. Tredegar, 25, 346 English and Irish Church, &o., Co. 375. 379. 385 Equitable Co. v. Perrault, 403, 404, 407 XIV LIST OF CASES. Equitable Co. v. Quinn, 186 Era Co., Re, 391, 424 Ernest v. NichoUs, 355-357, 391 Etna V. France, 136 Etna V. Green, 415 Etna V. Tyler, 63 Etty V. Bridges, 298 European Co., Re, 399 Evans v. Bignold, 23, ^o Evans v. Coventry, 380, 384 Evans v. Hooper, 353 Even's Claim, 399 Everett v. Desborough, 136, 137, 149, 151, 200 Everett v. London Assurance, 1 10, 112 Eyre v. Glover, 41 Fairchild v. Liverpool and London, 124, 233, 23s Eairlie v. Christie, 24 Family Endowment Co., Re, 390 Farebrother v. Woodhouse, 344 Fawcett v. London, Liverpool, and Globe, 188 Feise v. Parkinson, 85 Fenn v. Craig, 154 Ferguson V. Massachusetts, &c., Co., 34 Femie v. Maguire, 346 Ferris v. MuUins, 342 Filliter v. Phippard, 257-259 Fisher v. Liverpool, &c., Co., 21 Fisher v. Smith, 343 Fisk V. Masterman, 80 Fitchburg Railroad u. Charlestown Mutual Insurance Co., 97 Fitton V. Accidental Death Co., 30, 443.444 Fitzherbert v. Mather, 149, 429 FitzwiUiam v. Price, 336 Fleming's Case, 394, 395, 399 Fletcher v. Commonwealth Co., 1 13 Flint V. Fleming, 41 Flint V. Ohio Co., 73 Forbes & Co., Ex jjarte, 88, 149, 153, 421 Forbes v. Border Counties Co., 259 Forbes v. Edinburgh Life, 137, 430 Ford V. Ryan, 346 Forgie v. Royal Insurance Co., 173, 17s Fortescue v. Bamett, 297, 3°'> 314. 324 Forward v. Pittard, 55 Forwood V. N. Wales Mutual, 121 Foster v. Life Assurance of Scotland, 13s Foster v. Mentor Life, 254 Foster v. Roberts, 308, 462 Fowkes V. Manchester Co., 136, 146, 151 Fowler v. Scottish Equitable, 24, 25, 33. 89, 103 Foy V. Etna Co., 166 Fragano v. Long, 52 Franklin v. S. E. R., 432 Freme v. Brade, 329, 330 French v. Backhouse, 410 French v. Patton, 24 French v. Royal Exchange, 346 Frere's Case, 384, 394, 395 Friedlander v. London Assurance, loi, 155 Frost V. Liverpool, &c., Co., 422 Fry V. Fry, 65 Fryer v. Moreland, 17, 18, 465, 466 Furtado v. Rodgers, 80 Gale v. Lewis, 170, 299, 410, 413, 419 Gamble v. Accident Insurance Co., 446 Garcelon v. Hampden Insurance, 143 Garden v. Ingram, 176, 243, 266, 275 Gardner v. Cazenove, 66 Garner v. Moore, 68, 337 Gaskin v. Phoenix Co., 270 Gatayes v. Flather, 307 Geach V. Ingall, 136, 150 Geiseck v. Crescent Mutual Co., 117 General Land Credit Co., Re, 406 German Life Co.'s Case, 399 Gibson, Exparte, Re Smith, Knight, & Co., 397 Gibson v. Overbury, 342 Gibson v. Small, 25, 113, 139, 143 Giffard v. Queen Insurance Co., 27, S3. 94, 423. 425 Gilchrist v. Gore District Co., 169 Gill V. Downing, 339 Gillespie v. Miller, 290 LIST OF CASES. XV Gilley v. Burley, 316 Girdlestone v. North British and Mercantile, 145 Glen V. Lewis, 164, 165 Glover v. Black, 269 Godfrey v. Wilson, 324 Godin V. London Assurance, 80 Godsal V. Boldero, 14, 17, 68 Godsal V. Webb, 307 Goit V. National Protection Co., 74 Goldstone v. Osborne, 205 Gooderham v. Marlett, 52, 429 Goodman v. Harvey, 12 Goodwin v. Lancashire Fire Co., 114, ,180, 188, 200 Gordon v. Ingram, 243 Gordon v. Rummington, 116 Gordon!).Sea, Fire, and LifeCo., 356 Gore District Co. v. Samo, 156, 1 60 Goreley, £x parte, 195, 241, 270, 271, 27s Gorman v. Hand-in- Hand, 102, 104, 113, 115, 125, 206 Goss V. Withers, 2, 212 Gottlieb V. Cranch, 327, 329, 331, 332. 334 Gould V. British America Co., 192, 193 Goulstou V. Royal, 42, 51, 193 Gove V. Farmers' Co., 12, 116 Grain's Case, 348 Grant v. Easton, 406, 408 Grant v. Etna, 103, 106, 142, 416 Grant v. Parkinson, 62 Grant v. Reliance Insurance Co., 26 Grantley v. Garthwaite, 333 Gray v. Sims, 84 Great Britain Mutual Cos., Be, 376 Greaves v. Niagara District Co., 188 Green v. Ingham, 342 Greet v. Citizens' Co., 115, 170 Gregg V. Coates, 260 Grenier v. Monarch Co., 191 Grey ,11. Ellison, 336 Grieve v. Northern Co., 177 Griffith's Claim, 394, 399 GumeU v. Gardner, 298 Guardians Mansfield Union v. Wright, 454 Hagedorn v. Oliverson, 53, 426 Halford v. Close, 464 Halford v. K3rmer, 35, 40 Halhead v. Young, 104 Hall V. Railroad Co., 220, 221 Hall V. Wright, 244 Hallett V. Dowdall, 384 Hambro v. Hull and London Fire Co., 380 Hamilton's (Lord Claud) Case, 366 Hamilton's (Duke of) Trustees v. Fleming, 259 Hamilton v. Mendes, 223, 258 Hansen v. American Insurance Co., 189 Hanson v. Fishing Co., 69 Hare v. Barstow, 143 Hargrave v. Parsons, 451 Hargrave v. Smee, 30 Hargrave, He, 353 Harman's (Pratt) Case, 399 Harrison v. Douglas, 207, 208 Harrison v. Ellis, 104 Harrison v. London and Lancashire Fire Co., 120, 191, 192, 194 Harrison v. Venables, 156, 160 Hartigan v. International Life Co. , 198 Hartmann v. Keystone State Co., 138 Harvey v. Beckwith, 203 Hastie v. de Peyster, 251 Hastings Mutual Fire Co. v. Shan- non, 410 Hatch V. Mutual Life Co., 126 Hatton V, Beacon Co., 169 Hatton V. Provincial Co., 186 Havens v. Middleton, 264 Hawkins v. Coulthurst, 337 Hawkins v. Woodgate, 329, 332 Hawthorn's Case, 413, 419 Hawtrey's Case, 399 Haycock's Policy, 305, 345 Hebden v. West, 16, 43, 44, 67 Heckman v. Isaac, 64 Hendrickson v. Queen Insurance Co., 419 Henkle v. Royal Exchange, 24, 80 Hennessy, Jix parte, 299, 419 Henry v. Agricultural Mutual Co., 418 Henry Rifle Barrel Co. v. Em- ployers' Liability Corporation, 43. 251. 449 XVI LIST OF CASES. Henson v. Blackwell, 69, 330 Hentig v. Staniforth, 84 Herberts. Mercantile Fire Co., 115 Hercules Co. v. Hunter, 1 16, 159, 207, 213, 214 Hey V. Wyche, 264 Hicks V. Newport Railway, 20, 432 Hill V. Hartford Fire, 432 HiU V. Patten, 24 Hill V. Secretan, 53, 62, 70 Hill V. Trenery, 314-316 Hillier v. Alleghany Co., 118, 119 Hirsch v. Imthum, 207 Hobday v. Peters, 315 Hodgson V. Glover, 41 Hodgson V. Marine, 74 Hodson V. Observer Co., 23, 70, 84, 314 Hodson V. Railway Passengers' Co., 208, 209 Holditch's Case, 398 Holland v. Smith, 65, 329, 330 Holmes v. Blogg, 35 Holt's Case, 366 Holt, Me, 210, 211 Holt V. Everall, 36, 314, 317, 318 Holtzmann v. Franklin Fire, 118, 120 Holzappel v. Baker, 267 Home Insurance Co. v. Baltimore Water Co., 57, 58, 233, 427 Home Insurance Co. v. Garfield, 243 Home Insurance Co. v. Myer, 181 Home Insurance Co. v. Thompson, 244 Hone V. Mutual Safety Co., 251 Hooper 0. Accidental Death Co., 446 Hopkins v. Hawkeye Co., 75 Hopkins v. Prescott, 156 Home V. Anglo-Australian Co., 126, 127, 128, 130 Hort's Case, 396 Horton v. Sayer, 201 Houghton, Ex parte, 62 How's Exors'. Case, 398 Howell V. Knickerbocker Co., loi Howell's Case, 399 Howes V. Prudential, 296, 313 Huch V. Globe Insurance Co., 238, 240 Hucking v. People's Insurance Co., 12 Huckmann v. Femie, 137, 151, 200 Hugg V. Augusta Insurance Co., 241 Huguenin v. Rayley, 138, 152 Hummell's Case, 37S, 376, 387 Humphrey ^..Arabin, 329, 334 Humphrey v. Hartford Fire Co., 270 Hunt's Case, 386 Hutcheson v. National Co., 135, 144 Hutchinson v. Wright, 379 Hutton V. Waterloo, 1 37 Ibbetson, Sx parte, 286, 296, 301, 458, 462 Illinois Central Co. v. Woolf, 75 Imperial Marine Co. v. Fire In- surance Corporation, 12, 247, 249 Indemnity Case (i), 391-393. 39S Indemnity Case (2), 392, 393 India and London Co., He, 400 Insurance Co. v. Eggleston, 89 Insurance Co. v. Fogarty, 241 Insurance Co. v. Hope, 244 Insurance Co. v. Insurance Co., 249, 250 Insurance Co. v. Norton, 196 Insurance Co. v. Thompson, 42 Insurance Co. v. Transportation Co., 112 Insurance Co. v. Up de Graff, 64 Insurance Co. v. Wilkinson, 135, 410 International Life Co., Re, 383 International Life Co. v. Hercules Co., 399 lonides v. Pacific Co., 25 lonides v. Pender, 4, 88, 108, 192 Irving V. Manning, 213, 238 Isaacs 0. Royal Insurance Co., 96, 99. 100 Izon V. Gorton, 267 Jackson r. Forster, 130, 131, 170, 174, 295, 312 Jacobs V. Equitable Co., 419 Jacques v. Golightly, 44 Jacques v. Harrison, 284 Jersey City Co. v. Nicholls, 192 LIST OF CASES. XVU Jeston V. Key, 314 Johnson v. Ball, 315 Johnson v. North British and Mer- cantile, 169, 233, 270 Johnson v. Swire, 315 Johnson v. Union Mutual, 34 Johnston v. Western Co., 189 Johnston v. West of Scotland Co., 213 Jones V. Carey, 10 1 Jones V. Consolidated Co., 312 Jones V. Festiniog Railway, 43 Jones V. Gibbons, 301 Jones V. Mechanics' Pire Co., 193 Jones V. Provincial Co., No. i, 22 Jones V. Provincial Co., No. 2, 135 Joyce V. Kennard, 97, 238, 239, 293 Joyce V. Realm Co., 249-251 Joyce V. Swann, 46, 47 Kains v. Knightly, 4, 20 Kaltenbach v. M'Kenzie, 214, 216 Kanady v. Gore District, &c., 175 Kekewich v. Manning, 302, 314 Kelly V. Hochelaga, 1 14 Kelly V. Home, 34 Kelly V. Liverpool, &c., Co., 169 Kelly V. London and Staffordshire, 73. 75. 401. 406, 407 Kelly V. Phoenix, 66 Kelly V. Solari, 94 Kelsall V. Tyler, 209 Kendall v. Stevens & Co., 55 Kensington, Ex parte, 342 Kent Mutual, He, 375, 376, 3S7 Ker V. Hastings Mutual Co., 1 76 Kerr v. British American Assurance Co., 183, 184 Kerwin v. Howard, 316 Kidston v. Empire Marine Co., 121 Kill V. HoUister, 201 King, Sx parte, 460 King V. Accumulative Life Co., 384, 45S King V. Glover, 41 King V. Lucas, 8, 324 King V. Prince Edward, &c., Co , 237 King V. State Mutual Co., 271, 280 Kingdon v. Castleman, 315 Kingsford v. Swinford, 335 Kirby's Case, 363 Klein v. New York Life Co., 89 Knox's Case, 399 Knox V. Turner, 327, 329, 334 Knox V. Wood, 41, 52 Koster v. Eason, 410 Kunzze v. American Exchange Co., 123 Lackbkstein v. Lackerstein, 316 La Farge v. London, Liverpool, and Globe, 182 Laidlaw v. Liverpool and London Co., 190 Lambkin v. Ontario Marine, 1 16, 185 Lambkin 1;. Western Co., 178, 189 Lancaster, £x parte, 327, 329, 334 Lancashire Co. v. Chapman, 186 Lanoey's Case, 364, 394, 396 Langdale t>. Mason, 172 Langel v. Mutual Insurance Co., 185 Langhorn v. Cologan, 24, 85 Langley v. Queen, &c., 46, 66 Langston, Ex parte, 343 Langueville v. Western Co., 124 Lapierre v, London and Lancashire, Larooque v. Royal, 206 Last V. London Assurance, 385 Law V. London Indisputable Co., 14, 44. 681 294, 378 Lawder v. Lawder, 453 Lawrence v. Accidental Death Co., 442 Lea V. Hinton, 327, 329, 330 Learmonth, He, 307, 461 Lee's Case, 364 Leeds v. Cheetham, 242, 261, 275 Lees V. Whiteley, 243, 272, 303 Lefeuvre v. Sullivan, 344 Lefevre v. Boyle, 305 Lenders v. Anderson, 407 Leonard v. Clinton, 323 Leslie v. French, 338, 462 Lethbridge v. Adams, 3S4 Levyj). Baillie, 119, 121, 189, 191, 192 Le wine's Case, 412 Lewis V. King, 329 Lewis V. Rucker, 212, 23S Lewis V. Springfield Co., 112 Life Assurance of Scotland v. Foster, 30. 13s. 137. 143 Limerick Co. c. O'Ferrall, 343 XVlll LIST OF CASES. Lindenau v. Desborongh, "jo, 114, 138, 146, 147, 153 Linford v. Provincial Horse, &o., Co., 95. 410, 418 Lion Mutual Marine v. Tucker, 72 Lishman v. Northern Marine, 21 Liverpool, London, and Globe v. Wyld, 24 Liverpool Plate Glass Co. v. Pel- letier, 432 Lloyd's Case, 365 Lloyd V. Union Co., 34 Loader v. Kemp, 259 Lockhart v. Cooper, 46, 57 Lockyer v. OflBey, 100, 447 Lofft V. Dennis, 261, 267 London and Lancashire Co. v. Graves, 125 London and Lancashire Co. v. Honey, 151, 166, 189, 205 London Life Co. v. Wright, 23, 84, 358 London and N. W. R. v. Glyn, 55- 57, 60, 62 London andN.W. R. v, ■Whinray,452 London & Provincial v. Ashton, 352 London & Provincial v. Seymour, 33 London Assurance v. Mansell, 8, 33, 87, 140, 146-148, 151, 153, 200 London Assurance v. Sainsbury, 212, 218-221 London Guarantee Co. v. Feamley, 179. 189, 447, 454 London Life Co. v. Wright, 23, 84, 358 London, Liverpool, &c., v. Wyld, 155 London Marine Co., Re Andrews' and Alexander's Case, 385 Longueville v. Western Insurance Co., 124 Loraine v. Thomlinson, 82 Lord V. Ball, 40 Lord Advocate v. Earl of Fife, 465 Louisiana Fire Co. u. Nevir Orleans Co., 254, 465 Lowell Co. V. Safeguard Fire, 233 Lowry v. Bourdieu, 81, 83, 84, 87 Lucena v. Crawford, 38, 41, 42, 53, 54. 62, 72, 425 Lycoming Fire v. Schwenk, 173 Lycoming Fire v. Ward, 407 Lyde v. Barnard, 301 Lynch -o. Dalzell, 37, 42. 82, 107, 173, 286, 288 Lynch v. Dunsford, 88, 429 Lynch v. Hamilton, 88 Lynford v. Provincial, 418 Lyons v. Providence Washington Co., 125 MacCaethi v. Traveller's Co., 442, 443 MacClure v. Gerard Fire Co., 124 MacClure's Claim, 412 MacClure v. Lancashire Co., 102, 103, 123 MacCuaig v. Quaker City Co., 187 MaoCullagh v. Yorkshire Insurance Co., 403, 407 MacCuUoch v. Gore District Co., 237 Macdonald v. Irvine, 295 Macdonald v. Law Union, 144, 146 Macdonell v. Beacon, 166 MacEwan v. Guthridge, ill Macfarlane V. Andes Insurance Co., 22 MacGibbon v. Queen Insurance Co., 119, 120, 121 Macgregor v. Horsfall, 217 Maclver's Claim, 383 Mackenzie's Exors'. Case, 363 Mackenzie v. Mackenzie, 322 Mackenzie v. Coulson, 24 Mackenzie v. Van Sickles, 106 Mackenzie v. Whitworth, 4, 247, 251. 253 Maokie v. European Co., 23, 26, 98, 406, 414, 417, 423 Mackie v. Phoenix, 95 MacLaws v. United Kingdom Tem- perance Co., 144 Macklin v. Waterhouse, 55 Maclachlan v. Etna Co., 429 Maclean's Trusts, 310 Macleod v. Citizens' Co., 190 Macmanus v. Etna, 1 89 Maomillan v. Gore_District Co., 192, 193 Macqueen v. Phoenix Co., 26 MacRossie v. Provincial Insurance Co., 183, 184 LIST OF CASES. XIX MacSwinney v. Royal Exchange Co., 41 Magawley's Trust, 311, 313 Mallory v. Travellers' Co., 129, 442 Manby v. Gresham Life Co., 89, 1 89, 440, 448 Manchester Fire Co. v. Wykes, 174 Mangles v. Dixon, 303, 304 Mann ■;;. Western, 185 Manners v. Furze, 456 March v. Att.-Gen., 368, 381 Marine v. Protector, 251 Marine v. Martin, 252 Marks v. Hamilton, 42, 46, 66 Marriage v. Royal Exchange, 276 Marriott v. Kinnersley, 315 Marsdeni). CityandCountyFire, 112 Marshall v. Emperor, 145 Marshall v. Schofield, 51 Martin's Claim, 386 Martini'. Home, 155 Martin v. International, 42 1 Martin v. Sitwell, 79 Martin v. Travellers, 442 Martineau v. Kitchen, 55, 61 Marvin v. Universal Life, 411 Mason v. Agricultural Mutual, 191 Mason v. Andes, 169 Mason v. Hartford, 32, 170, 420 Mason v. Harvey, 182, 183, 193 Mason v. Sainsbury, 173, 214, 219 Mass^ V. Hochelaga Co., 74 Master v. Miller, 24 Masters v. Hamilton, 42 Matthew v. Northern, 65, 382, 383 Matthewson v. Royal, 61 Matthewson v. Western Co., 223 Maygham v. Ridley, 342 May V. Standard Fire Co., 174, 175 MayaUti. Mitford, 106, 141, 142, 144 Maynard v. Rhode, 136, 137, 146, 148, 149, 200, 430 Mayor of New York v. Brooklyn Fire, 46 Mead v. Davison, 21, 423, 424 Meagher v. London and Lancashire Fire Co., 187, 192, 193 Mears v. Humboldt, 161 Mechanics' Building Society v. Gore District Co., 169 Mercantile Mutual Marine Co., Re, 365 Merchants' Co. v. Firemen's Insur- ance Co., 12 Mellor's Policy, Re, 36 Menzies v. North British Co., 213 Merrick v. Germania, 124, 233, 235 Merrick v. Provincial, 162 Mexborough v. Bower, 209 Meyer v. Isaac, 30 Miall V. Western Co., 287, 288 Midland Counties Co. v. Smith, 113, 116, 2S9 Mildmay v. Folgham, 292 Mildred v. Maspous, 23 Millandon v. Atlantic, 209 Miller's Case, 399 Miller, Rt, Ex 'parte Wardley, 459 Miller v. Life Insurance Co., 74 Miller v. Warre, 7 1 Milligan v. Equitable Co., 47, 63 MUls V. Griffiths, 284 Milroy v. Lord, 314 Minifie v. Railway Passengers' Co., 206, 207 Mitchell V. Edie, 217 Moadinger v. Mechanics' Fire, 32 Moens v. Hayworth, 146 Moffat V. Reliance Co., 41 1 Moloney v. Tulloch, 407 Money v. Gibbs, 342 Montreal Insurance Co. u. M'Gil- Uvray, 77, 358, 359, 409,411, 413.415 Moore v. Protection Co., 190 Moore v. Woolsey, 127, 129, 130 312 Morel V. Irving Insurance Co., 239, 240, 244 Morel V. Mississippi Life Co., 441 Morgan v. London General Omni- bus Co., 450 Morland v. Isaac, 329, 330 Morocco Land Co. v. Fry, 21 Morrison v. Muspratt, 135, 146 Moses ji. Pratt, 8i Moss u. Legal and General Life, 23 Motteux V. London Assurance, 22 Muir V. Fleming, 343 Mulvey v. Gore District Co., 188 Murray v. Wells, 323 Mutual Life Co. v. Lawrence, 444 .XX LIST OF CASES. Mutual Safety v. Hone, Z46, 249, 252 Myer v. London, Liverpool, and Globe, 402 Myers v. Perigall, 354, 367 National Bolivian Navigation Co. V. Wilson, 413 National Marine v. Halfey, 251 National Provident Life Co., Me, 399, 400 Naughter v. Ottawa Co., 165, 421 Neall V. Read, 52 Neill V. Union Mutual, 77, 158, 411 Newcastle Fire Co. v. MacMorran, loi, 139, 141, 146 New England Fire Co. v. Wetmore, 225 New South Wales Bank v. North British and Mercantile (No. I ), 64, 82, 174, 289 New South Wales Bank v. Com- mercial Union, 82, 284, 286, 288 Newman v. Belsten, 20, 22, 98, 323, 325 Newton v. Gore District Co., 189 New York Bowery Co. 1). New York Fire, 38, 1 14, 247, 254 New York Central Co. v. Protection Co., 251 New York Express v. Traders' In- surance Co., 112 New York Life v. Flach, 135 New York Life v. Hendren, 199 New York Life v. Statham, 199 New York, Mayor of, v. Brooklyn Fire Co., 46 New York State Co. v. Protector Co., 251, 252 Niagara Fire Co. v. De Graff, 34 Niblo V. North American Insurance Co., 242 NichoU's Case, 364 Nicholson v. Nicholson, 378, 385 Nicholson v. Phoenix Mutual, 163 Nicol v. Broun, 428 Noad V. Provincial Co., 123, 168 Norris v. Caledonian, 341, 344, 462 North American Fire v. Throop, 1 14 North American Life v. Burroughs, 443 North British and Mercantile v. London, Liverpool, and Globe, 31, 57, 227-229, 234, 280 • North British and Mercantile v. Moffat, 31, 55, 57, 60 North British Insurance Co. v. Hal- lett, 413, 418 North British Insurance Co. v. Lloyd, 452 North-Eastern Insurance Co. i>, Armstrong, 226 North of England Pure Oil-Cake v. Archangel Marine, 287, 289 Northrup v. Kailway Passengers' Co., 436 ' Notman v. Anchor Co., 30, 199 " Norwood, Mx parte, 250, 254 Nunneley, Ex parte, Re Times Life Co., 399 Oaklet v. Portsmouth Railway, 55 Ocean Wave, The, 22 1 O'Connor v. Imperial, 58 Ogden V. Montreal Co., 270, 425 O'Hara's Tontine, 295 Oldfield V. Price, 194 Oldman o. Bewicke, 145, 174, 182. 183 Oom V. Bruce, 80, 84 Otterbein v. Iowa State Insurance Co., 25 Oxford Building Society v. Water- loo Mutual Fire Co., 177 Orr-Ewing v. Orr-Ewing, 404 Paoaud v. Monarch Co., 167 Pacific Mutual Co. v. Butters, 416 Packard v. Connecticut Life, 324 Packer v. Gibbins, 267 Padstow Total Loss Association, Re 348, 353 Page V. Fry, 49, 51 Paine v. Meller, 63, 290 Palethorpe, Re, 460 Pallas V. Neptune Co., 286, 299 Palmer v. Hawes, 136 Palmer v. Merrill, 302 Palyart v. Leckie, 84 Parfe r. Scottish Imperial Co., 414 Paris V. Gilham, 241, 243 Parken v. Royal Exchange Co., 403 404, 406 LIST OF CASES. XXI Parker v. Eagle Co., 244 Parker v. Equitable, 66 Parker v. Marquis of Anglesey, 335 Parkes v. Bott, 307, 316 Parlby's Case, 386 Parry v. Ashley, 174, 292 Parsons v. Bignold, 24, 42, 421 Parsons v. Queen Insurance Co, , 269 Parsons v. Standard Insurance Co., 166-168 Partridge v. Albert Insurance Co., 366, 423 Paterson v. Powell, 44, 83 Patterson v. Royal Insurance Co., 27, 424 Patrick v. Eames, 71 Patrick Co. (St.) v. Bremner, 406 Pawsou V. Watson, 147, 148 Pearson v. Amicable, 314 Pearson v. Commercial Union, 30, 31, 82, 97, 102, 103, 124, 125 Peck V. Phoenix Co., 163 Pedder v. Moseley, 3 1 5 Peddie v. Quebec Eire, 105 Pelly V. Royal Exchange, 29 Pelly V. Wathen, 343 Pender v. Ainsley, 267 Pendlebury v. Walker, 227 Penfold V. Universal Life Co. , 444 Penley v. Beacon Co., 23, 95, 178, 380, 419 Pennell v. Millar, 307, 34 1 Penniall v. Harborne, 260, 264, 277 Peppitt V. North British and Mer- cantile, 419 Perrins v. Marine, &c., Co., 138, 153. 439 Perry v. Newcastle District Co., 84, 358 '5 Perry v. Provident Life Co., 447 Pettigrew's Case, 64 Petty V. Wilson, 295 Pfleger v. Brown, 308, 329 Phillip's Insurance, 310 Phillips V. Eoxall, 452, 454 Phillips V. Grand River Co., 156, 159 Phoenix Co., Re, 88, 95, 381, 424 Phoenix Co. v. Sheridan, 89, 98 Pimi). Reid, 107, 114, I48, 160, 163, 185, 198 Pinchin v. Realm Fire Insurance Co., 423 Planters' Insurance Co. v. Myers, 417 Piatt V. Kerry, 259 Pocock's Policy, 310 Pomares v. Provincial Co., 178 Poole V. Adams, 63, 289 Poole V. National Provincial Life, 412 Post V. Hampshire Mutual Co., 236 Potomac, The, 219, 221, 226 Pott's Case, 400 Power's Case, 398 Powles V. Innes, 287 Pownall's Case, 364 Preston v. Neaje, 327 Price, Ex parte, 387 Price V. Worwood, 265 Priest V. Citizens' Mutual Co., 185 Prince of Wales Co., Ex parte. See Re Athenaeum, 248, 37S, 382-384 Prince of Wales Co. v. Athenaeum Co., 409 Prince of Wales Co. v. Harding, 93, 351. 356, 358-360 Prince of Wales Co. u. Palmer, 33, 86, 127 Princess of Reuss v. Bos. See Reuss, Princess of Pritchard v. Merchants, &c., Co., 77, 92, 127 Professional Life Co., Re, 384, 385 Propeller Montioello v. Mollison, 217 Providence Co. i>. Martin, 445 Provincial Co. v. Etna Co., 178, 254 Provincial Co. v. Roy, 413 Prudential v. Thomas, 345 Pugh V. Duke of Leeds, 99 Purdew v. Jackson, 304 Putnam v. Commonwealth Insur- ance Co., 161 Pym V. Blackburn, 259 Quebec Insurance Co. v. St. Louis, 221 Queen Insurance Co. v. Devinney, •59 Queen Insurance Co. v. Parsons, 25, 26 Queen of ^pain v. Parr, 429 ^ Quilter v. Mapleson, 264, 265 Quin V. National Insurance Co., 101 xxu .LIST OF CASES. Kacine v. Equitable, 183 Ramsay's Case, 353 Ramsay Cloth Co. v. Gore District Insurance Co., 169 Ramshire v. Bolton, 301 Randal v. Cochran, 219, 220 Rankine v. Potter, 214, 216, 217 Ratoliffe v. Ocean, &c., Co., 43 Rawbone's Will, 295 Rawls 2). American Insurance Co., 68 Raynor v. Preston, 63, 174, 225, 242, 255, 282, 284, 286, 289, 292 Redpath v. Sun Mutual, 403 Reed's Case, 365 Reed v. Cole, 376 Reed v. Royal Exchange, 35 R6edi).'WilliamsbergCityrireCo.,46 Rees River Co. v. Smith, 193 Reesor v. Provincial Co., 221, 224 Reg. V. Boynes, 191 Reg. o. Whitmarsh, 352 Reid V. Gore District Co., 1 65 Reid V. Lancaster Fire Co., 103 Reid V. M'Crum, 275 Eeis V. Scottish Equitable, 197 Relief Eire Co. v. Shaw, 22 Reuss, Princess of, v. Bos, 406 Reynard v. Arnold, 242, 266, 267, 274, 280 Reynolds v. Accidental, &o., Co., 441 Riach V. Niagara District Co., 189 Rice V. Provincial Insurance Co., 186, I go Richards v. Easto, 258 Richards v. Platel, 343 Ridley v. Plymouth Co., 352 Riley v. Home, 55 Ripley v. Insurance Co., 442 Ritt V. Washington Marine, 416 Rivaz's Case, 399 Robins ». Fireman's Fund Insur- ance Co., 233 Roberts v. Lloyd, 301 Robertson's Case, 348 Robertson v. French, 29 Robertson v. Hamilton, 52 Robertson v. Marjoribanks, 32 Robertson v. Metropolitan Life, 196 Robinson v. Bland, 404 Robinson u. George Insurance Co., 209 Robinson v. International Life, 421 Robson V. M'Oreight, 379 Roebuck v. Hamerton, 44, 45 Rogers V. Grazebrook, 277 Rohrbach v. Germania Co., 69, 417 Rokes V. Amazon Insurance Co., 180, 186, 427 Rolfe V. Harris, 264 Rolland v. North British and Mer- cantile, 102-104 Roper V. Lendon, 181, 203 Rose V. Medical, &c., Co., 19 Ross V. Bradshaw, 143, 144, I47> 373. 43° Ross V. Commercial Union, 1 83, 191 Rossiter *. Trafalgar Life Co., 22, 406, 414, 422, 423 Routhti. Thompson, 80, 82, 425, 426' Routledgev. Burrel, 139, I45> '§3 Roux V. Salvador, 217, 241 Row V. Dawson, 298 Royal Bank of India's Case, 362 Royal British Bank 0. Turquand, 409 Rummens i/. Hare, 295, 296, 313, 342 Ruse V. Mutual Benefit Co., 37, 403 Russ V. Mutual Co., 156 Russell, Be, 299 Russell V. Russell, 207 Ryder v. Commonwealth Co., 244 Sadler's Case, 360 Sadler's Co. v. Bad cook, 13, 37, 42, 82, 173, 243, 285, 286, 288 Saint Patrick Insurance Co. v. Brebner, 406 Salvin V. James, 92, 448 Sampson v. Security Insurance Co. 103 Sanderson v. Aston, 452 Sanderson v. Simonds, 24 Sargent's Trusts, 346 Saunders, Ex parte, 306 Saunders v. Best, 462 Saunders v. Dunman, 326, 344 Sawtelle v. Railway Passengers' Co., 446 Scanlon v. Sceales, 137 Schmidt 'c. New York Union Co., 116 LIST OF CASES. XXlll Schneider v. Provident Life, 445 Scholefield ;;. Lockwood, 278 Sohondler v. Wace, 170, 308, 312 Scott V. Avery, 201, 202 Scott V. Eagle Co., 377, 378 Scott V. Home Insurance Co., 116 Scott V, Liverpool Corporation, 203 Scott V. Niagara District Co., 188 Scott ». Phoenix, 182, 184 Scott V. Rose, 39 Scottish Amicable v. Northern, 196, 229-232, 246, 280 Scottish Equitable v. Buist, 7, 33, 74. 76, I37> 305 Scottish Widows' Fund v. Buist, 19, 303. 305 Scripture v. Lovrell Co., 109 Seqhetti v. Queen Insurance Co., 191 Seton V. Law, 421 Severance v. Continental Co., 103 Sewell V. King, 294, 297, 313 Seymour v. London and Provincial &c., Co., 33 Seymour v. Vernon, 255 Shannon v. Gore District Co., 168, 410 Sharp V. Milligan, 262 Shaw V. Robberds, 107, 113, 148, 162, 164 Shaw V. St. Lawrence Fire Insur- ance Co., 185 Shearman v. British Empire Co., 326, 344, 462 Sheeley v. Professional Life Co., 408 Shepherd v. Beecher, 452 Sherbonneau v. Beaver Co., 51 Shilling V. Accidental Death Co., 39, 40, 70, 136, 314, 434, 444 Sibbald v. Hill, 96 Sidaways v. Todd, 52, 57, 65 SiUem v. Thornton, loi, 165 Silverthorne v. G-illespie, 52 Simond v. Boydell, 79 Simpson v. Accidental, 77, 437 Simpson v. Scottish Union, 242, 243 Simpson v. Thompson, 6, 220, 222 Simpson ?>. Walker, 328 Sinclair v. Maritime, &c., Co., 440, 442 Siordet v. Hall, 112 Siter V. Morrs, 56, 57 Skingley, Se, 260 Smedley v. Felt, 323 Smidmore v. Australian Gaslight Co., 5, 219, 222 Smiley v. Citizens' Fire Co., 187 Smith, Ex parte, 392 Smith, Be, 312 Smith V. Accidental, &c., Co., 30, 443 Smith V. Bank of Scotland, 454 Smith V. Colonial Mutual, 98, 245 Smith V. Columbian, 270, 280 Smith V. Commercial Union, 181 Smith V. Lascelles, 53, 54, 62 Smith V. Queen, 182 Smith V. Royal, 66 Smith, Knight, & Co., Re, 397 Snow V. Carr, 427 Solicitors', &c., Co. ■;;. Lamb, 131, 177 Solvency Co. v. Freeman, 455, 456 Solvency Co. v. Froane, 455, 456 Solvency Co. v. York, 455 Somers v. Athenaeum Co., 149, 155, 421 Soupras 1/. Mutual Insurance Co., 168 Southard w. Railway Passengers' Co., 436, 440 South Australian Insurance Co. v. Randall, 59, 60, 172 Southcombe v. Merriman, 137, 150 Sowden v. Standard Co., 421 Spare v. Home Mutual Insurance Co., 67 Spencer's Claim, 399 Spencer v. Clarke, 302 Spering's Appeal, 359 Splints V. Lefevre, 410 Squire v. Campbell, 332 Stacey v. Franklin Fire Co., 171, 227. 233 Staokpoole v. Simonds, 13 Stainbank v. Penning, 43 Stainbank v. Shepherd, 43 Stainton v. Carron Co., 159 Stanley v. Western Co., 31, III, 117, 118, 119 Stanton v. Etna Insurance Co., 61 Stanton v. Home Insurance Co., 290 State Fire Co., Jle, 378, 382, 383, 38s Stedman v. Webb, 343, 344 XX17 LIST OF CASES. Steele v. M'Kinlay, 451 Steen v. Niagara Fire Co., 1 77, 346 Steeves v. Sovereign Pire, igi Steinbank v. Fanning, 43 Steinbank v. Shepherd, 43 Stephens, Ex parte, 399 Stephens v. Illinois Insurance Co., 269 Stephenson's Case, 366 Stevenson v. London and Lancashire Co., 46 Stevenson v. Snow, 79, 81 Stirling v. Vaughan, 425 Stock V. Inglis, 41, 61 Stookdale v. Dunlop, 41, 43 Stocks V. Dobson, 301 Stockton v. Fireman's Insurance Co., 418 Stokes V. Cox, 45, loi, 165 Stokoe V. Cowan, 294, 312, 346 Stone V. Marine, 81 Stone V. United States Casualty Co., 445 Stone V. Universal Marine, 81, 82 Storie's Trust, 330 Stormont v. Waterloo Life, 126, 128, 129 Strachan's Case, 375 Strachan v. M'Dougle, 296 Street v. Rigby, 209 Summers v. Commercial Union, 422 Summers v. Eldston, 359 Sunderland Marine v. Kearney, 23 Sun Fire Co. v. Wright, 41 Sun Fire v. Ocean Insurance Co., 9 Sun Mutual v. Ocean, 253 Supple «!. Cann, 73, 159, 197 Susquehanna Insurance Co. v. Toy Co., 181 Sutherland v. Pratt, 47, 63 Sutherland v. Sun Fire, 195, 196 Swan V. Watertown Insurance Co., 417 Swann v, Phillips, 301 Swayne v. Svvayne, 298 Sweeney v. Franklin Fire, 46 Swete V. Fairlie, 151 Swich V. Home Life Co., 137 Syers v. Bridge, 31 Talamon v. Home and Citizens Co., 119. Talbot V. Frere, 343 Tallman v. Mutual Fire Co., l8l Tarleton v. Staniforth, 90, 91 Taunton v. Royal Insurance Co. no, 358, 361 Tayler v. Caldwell, 267 Taylor, Ex parte,' 25 Taylor v. Dunbar, loi Tebbetts v. Hamilton Mutual Co., 33 Tebbits v. Dearborn, 70 Tennes n. N. W. Mutual, 324 Theobald v. Railway Passengers' Co., 103, 213, 431, 432, 435 Thomas v. Times and Beacon Co., 187 Thompson v. Chamook, 201 Thompson v. Grant, 269 Thompson v. Insurance Co., 89, 90 Thompson u. Montreal Insurance Co., 105, 1 19-122, 126 Thompson v. Speirs, 419, 458 Thompson v. Taylor, 41 Thompson's Trustees v. Thompson, 317 Thurbum v. Steward, 404 Thurtell ». Beaumont, 113, 116, 193 Tibbitts v. Hamilton Mutual, 33 Tidswell v. Angerstein, 62, 66 Times Fire Co. v. Hawke, 237, 244 Times Life Co., Me, see Ex- parte Nunneley, 399 Titus V. Glenfall's Co., 187, 196 Todd V. London, Liverpool, &c., Co., 60 Todd V. Morehouse, 315, 339 Tolman v. Manufacturers' Co., 246 Tooley v. Railway Passengers' Co., 441. 445 Towle V. National Guardian Co., 43. 45S TraiU v. Baring, 154, 254 Transatlantic Fire Co. v. Dorsey, III Trask v. Insurance Co., 180 Tredwen v. Holman, 203 Trew V. Railway Passengers' Co., 441 Triston v. Hardy, 327 Tuck V. Hartford Co., 22S Tucker v. Provincial Co., 416 Turberville v. Stamp, 258, 259 LIST OF CASES. XXV Tyrie v. Fletcher, 7, 78, 79, 81, 82, 98 UndEehill v. Agawam Co., 185 Underwood's Case, 348 Union Marine v. Martin, 249, 251 Unitarian Congregation v. Western Assurance Co., 236 United Kingdom Life Co., lie, 345 United Kingdom Life Co. v. Dixon, 296 Universal Life Co. v. Bachus, 402 Universal Non-Tariff Co., Jie Forbes Claim, 88, 149, 153 Vance v. Foster, 186, 214, 245 Van Zandt v. Mutual Benefit Life, 129 Vaughan v. Menloye, 259 Vernon v. Smith, 241, 261 Veziua v. New York Life Co., 39, 45, 294 Vibbon v. Marsouin, 323 Von Lindenau v. Desborough, 67 Vyse V. Wakefield, 127, 309 Wainwbight v. Bland, 39, 85, 127, 146 Walden v. Louisiana Insurance Co., 114 Walker v. Maitland, 6 Walker v. Provincial Insurance Co., Walker v. Western Insurance Co., 187 Wallace v. Insurance Co., 3, 27, 241 Wallis V. Hirsch, 207 Want V. Blunt, 77, 82, 90, 98, 100, loi, 158 Ward V. Audland, 302 Ward V. Beck, 66 Ward V. Day, 196 Wardley, Ex parte, 459 Waring v. Fire Co., 46 Wamock v. Davis, 2, 16 Warwicker v. Bretnell, 254 Wastroppr. Bruce, 135 Watchom v. Langford, 32 Waterloo Insurance Co., He, 353 Waters v. Merchants' Co., Ill Waters v. Monarch, 56, 57, 59, 60, 62, 233 Watkins v. Reymill, 24 Watson t). Main waring, 135, 136 Waugh's Trusts, 341, 342 Waydell v. Provincial, 176, 189 Webb's Policy, 345 Webb V. Protection Co., 121 Webster v. British Empire Co., 303, 304 Webster v. De Tastet, 44 Weems 11. Standard Life Co., J37, 150 WeigaU v. Waters, 261 Weir V. Bell, 423 Weir V. Northern Counties Co., 182 Welles V. Boston Co. , 1 1 Welsh V. Reynolds, 407 Werninck's Case, 400 West V. Beid, 308, 458 Western Insurance Co. v. Attwell, 166 Western Insurance Co. v. Provincial Insurance Co., 412, 417 West of England Bankj;. Batchelor, 343 Weston V. Richardson, 297 Westport Union v. Omalley, 453 Westropp V. Bruce, 135 Wheelton v. Hardisty, 8, 428, 430 White 0. British Empire Co., 131, 3'2 White V. Lancashire Fire Co., 415 White V. Republic Insurance Co., 112, 119, 123 Whitehaven Bank Case, 398 Whitehead v. Price, 106, 141 Whiting V. Massachusetts Co., 90 Whittingham v, Thornbrugh, 85, 86, 373 Whyte V. Home Insurance Co., 62 Whyte 0. Western Insurance Co., 185, 186 Wienholt v. Roberts, 410 Wiggins V. Queen Insurance Co., 181 Wight V. Brown, 35 WUkins V. Germania, 143 Wilkinson v. Coverdale, 428 Willesford v. Watson, 203, 204, 207 Williams v. Atkins, 329, 331, 334 Williams v. Hartford Fire Co., 238, 240 Williams v. North China Insurance Co., 4, 27, S3. 425 C LIST OF CASES. Williams v. Thorpe, 301, 458 Williamson v. Commercial Union, 160 Williamson v. Gore District Co., 236 Willis V. Pole, 143, 144 WUson V. Citizens, 61 Wilson V. Genesee Co., 41 1 Wilson V. Glasgow Tramway, 450 Wilson V. Jones, 37, 42, 45 Wilson V, Lloyd, 389 Wilson V Bankin, 44 Wilson V. State Insurance, 177 Wilson V. Wilson, 264 Windus V. Tredegar, go Wing V. Harvey, 74, 76, 154, 158, I77> 197. 417. 419 Winspear v. Accidental Co., 441 Winston's Case, 376 Winthrop v. Murray, 309 Winter v. Easum, 324 Witherell 0. Maine Insurance Co., II, 112 Witt V. Amis, 295, 296 Wood's Claim, 88 Wood's Case, 393, 394, 398, 399 Woolf V. Horncastle, 52, 69, 425 WorraU v. Johnson, 344 Worsley v. Wood, 139, 141, I4S. 174, 179, 182, 183 Worthington v. Curtis, 40, 71 Wright 1). Pole, 42, 213 Wright V. Sun Mutual Co., 84, 358 Wright V. Ward, 203 Wyatt's Case, 386 Wylie 1:. Times, 22 Wyman v. Wyman, 292 Wynkoop v. Niagara Co., 239, 240 Wynne's Case, 395 Xenos v. Wiokham, 22, 428 Yallop, Ex parte, 62 Yates V. Dunster, 263 Yates V. White, 217, 219 Yeaton v. Fry, 172 Yonker's Pire Co. v. Hoffman Fire Co., 251 THE LAWS OF INSURANCE. CHAPTER I. NATURE OF THE CONTRACT OF INSURANCE, The aim of all insurance is to make provision against Purpose of the dangers which beset human life and dealings/"'"""'-^' Those who seek it endeavour to avert disaster from themselves by shifting possible losses in their adventures on to the shoulders of others, who are willing, for pecuniary consideration, to take the risk thereof ; and in the case of life insurance, they endeavour to assure to those dependent on them a certain provision in oase of their untimely death (a), or to provide a fund out of which their creditors can be. satisfied. Those who grant insurance undertake such risks at a price and upon calculations which, if well adjusted, will leave them, after providing against all contingencies, & fair profit on the capital which they adventure. In insurance business there is a tendency, as in all others, to reduce such profit to the lowest margin, and the insurers in effect grant by way of bonus a rebate on the premiums originally demanded, whereby they cor- rect errors in their own favour made in estimate of the premiums charged for the risks taken, or make the business of insurance mutual rather than commercial. The controlling principle in insurance law is indem- Piir.c!iJie pf nity, and by reference to that principle most difficulties iudemuity. (a) I Bell Conim. 645 (7th edition). 2 THE LA^VS OF INSDKAXCE. arising on insurance contracts must be settled (5). Except in insurance on life and against accident, which will be presently discussed, the insurer contracts tO' indemnify the assured for what he actually loses by the happening of the events upon which the insurer's: liability is to arise ; and under no circumstances is the assured in theory entitled to make a profit of his loss (c). Were this not so, the two parties to the contract would not have a common interest in the preservatioiL of the. thing insured, and the contract would create a desire for the happening of the event insured against {d^.. And where in fact the assured has a prospect of profit, there and there only can arise the temptation to- fraud, or such carelessness as will bring on the destruc- tion of the thing insured. Indemnity The Contract is not necessarily one of perfect indem- com^'let?^ nity («). No insurer now takes the risk of the de- struction of what he insures by all perils whatsoever.. As a man of business, he must take a risk which he- can estimate, for the two reasons that his capital is not unlimited, and that the reward he receives for his- liability must be calculated with some reference to the prospect of his actually incurring the liability. The insurer not only does not insure against all risks,, but will not insure to an unlimited amount. The amount of insurance is controlled — I. By the value of the thing insured. If, however, the assured is respectable, his valuation of his goods is usually taken ; and insurers, if the risk is not great, do not object to over-insure in order to earn a higher (6) Oastellain v. Preston, u Q. B. D. 380 at 386, per Brett, L. J. (c) Same case. Vide also 52 L. J. Q. B. 366, 49 L. T. N. S. 29, 31 W. R. 557. {d) WamocJc v. Davis, 104 XT. S. (14 Otto) 775. (c) Aitchison v. Lohre, 4 App. Cas. 755, 49 L. J. Q. B. 12-?, 41 L. T. N. S. 323, 28 W. R. I. NATURE OF CONTRACT. 3 premium, since they know that they will only be liable for the actual loss. 2. By the general consideration of the insurer's business. Most insurers will not insure above a certain amount on any property or life, and either decline the surplus, or, if they accept it, reinsure their liability thereon with some other insurer, so as to divide the liability thus incurred. Further, the insurer will not insure every form of property nor every interest therein. The contract is in its inception mercantile, and the only value insurable insurabl is the commercial value of the thing insured. An^^^"*" insurer will not pay for a man's losses at his own price or compensate him for his feelings at the burning of an heirloom, but only for his loss so far as it is estimable in money on ordinary business principles. And there are many kinds of property, such as documents of title and negotiable instruments, which while of great value in a certain sense, are so only as evidences of title, and as such are not proper subject-matter of insurance. The insurer, by limiting the amount up to which he Extent of insures, does not, except in a valued policy, bind him- liability. self absolutely to pay the whole amount if the thing insured is destroyed, and he is not estopped from demanding proof of the actual loss caused by the perils insured against. His undertaking is only to indemnify for loss actually suffered not exceeding the amount named in the policy. In valued policies (which, though not unlawful, are Valued policy, rare in the case of land insurances on property) (/) the value is agreed, and such value is conclusive for all purposes against the assured, and against the insurer, unless he impugns the good faith of the assured in (/) 3 Kent Comm. 375, note d. 2 Phillips, s. 121 1, ei seq, Wallace V. Inswrance Co. 4 Louisiana O. S. 289. j 4 THE LAWS OF INSURANCE. making the valuation {g), or shows over-valuation to be so great that knowledge thereof would have affected the insurer's willingness to take the risk (A). And even where for convenience the value is agreed, proof of loss total or partial must be made to entitle the assured to recover on the contract. Thus it is said in a very early case, that where a policy is granted on the goods of " A " without account, he must prove that his goods were shipped and lost, but not the particulars (i). Eeauits of The conscquences of the principle of indemnity are principle of , ■ a in indemnity. brieily as loUows : 1. Only what has been actually lost need be made good,whether'bypayment or reinstatement, i.e. restoration of the thing damaged to its original condition, or con- struction of a new thing similar to it. No more than the amount of loss can be lawfully recovered, and if more is recovered the insurer can get it back again (J). 2. If the thing insured is not totally destroyed, but remains wholly or in part in a deteriorated or damaged condition, the insured can only claim the value of the injury actually done, unless all that remains of the thing insured be surrendered to the insurer. If the assured does not agree to treat the thing as wholly lost to him, he cannot ask to have it wholly made good to him. This rule, commonly called the doctrine of abandonment, is chiefly applied in marine insurance, but is equally applicable to all insurances on property {k). (j) Barker v.Janson, 16W.R.399, L. R. 3, C. P. 303, 37 L. J. C. P. 105. (A) lonides v. Pender, L. R. 9, Q. B. 531, 43 L. J. Q. B. 227, 30 L. T. N. S. 547, 22 W. R. 884. (i) Williams v. North China Insurance Co., I 0. P. D. 757, 765, 35 L. T. N. S. 884. Kains v. Knightly, Skinner, 54. . U) See Dan-ell v. Tiibits, 5 4 B. D. 560, 563, W L. J. Q. B. 3-5, 42 L.T. N. S. 797, 29 W. R. 66. {k) Casteliain v. Preston, 11 Q. B. D. 380, 52 L. J. Q. B. 366, 49 L. T. N. S. 29, 31 W. R. 557. M'Kenzie v. Wkitworth, 1 Ex. D. 36, 45 L. J. Ex. 233, 33 L. T. N. S. 655, 24 W. R. 287. NATURE OF CONTRACT. The only questions arising under it in land insurance are as to what degree of damage will entitle the assured to abandon the property to the insurer, to make what he can of it, and when the insurer can insist on the assured keeping the damaged property and receiving the amount of the damage. The solution of these questions depends on whether the identity of the pro- perty has been lost by the happening of the peril (l). 3. If the assured has any ways and means open to him to repair his loss otherwise than at his own expense or at the cost of his insurer, he must either cede such ways and means to the insurer, on being paid in full the amount of his loss, or he must exercise such ways and means for the benefit of the insurer (m). He may not take with both hands. Any surplus re- covered by him in excess of his actual loss he holds in trust for an insurer who has paid him. And while, if the insurance does not fully compensate him, he is entitled to control any action brought a;gainst other persons primarily responsible for the loss (n), he can- not even in such a case exonerate such other persons from liability (0). An uninsured man can release a right of action arising out of his loss, but a man who. is insured may not release such claim in such a way as to prejudice his insurers. Either such release will be ineffectual, and the insurer will be able to sue in the insured's name, the release notwithstanding (p), or the assured will be liable (as for a breach of trust) for granting such release contrary to his duty arising out of the contract of insurance (q). This right of the insurer, which is termed subrogation, Subrogation. (l) Caslellain v. Preston, 1 1 Q. B. D. 380, 397 Bowen, L. J. (m) Hid. (n) Commercial Union v. Lister, 9 Ch. App. 483, 485, 43 L. J. Oh. 6ui. (0) Smidm,ore v. Australian Gas-light Co., 2 N. S. W. Law, 219. ip) Ibid. (3) Commercial Union v. Lister, supra, per Jessel, M. R. THE LAWS OF INSURANCE. does not, however, apply in cases where insured property is injured by acts for which the assured would have been in law responsible if the property had not been his own. Thus where two ships, owned by the same man, collide by the fault of one, the insurers of the ship not in fault have been held not to be entitled to make any claim on the owner for the act of the other ship, though the insurers of cargo would have such claim against the shipowner (r). The reason for this apparent variation from the rule already stated is twofold — 1. That insurers take the risk of the assured's negligence as part of the risk against which they insure (s). 2. That the assured in the case cited could have no action against himself for the injury done by his one ship to his other, and that there is in such a case no right to which the insurer could on payment suc- ceed. Position infer Insurers of the same interest in the same property se of InBur — of the sam property. of thesTme" ^11 rank together for purposes of meeting a loss. Their position is analogous to that of co-sureties (f), and they are entitled to insist upon contribution inter se proportionably to the amount each has at stake: More than the whole loss, as has been seen, may not be paid, and their several contracts are taken together as parts of one contract of indemnity, each paying accordingly. (r) Simpson v. Thompson, 3 App. Cas. 279, 284, 38 L. T. N. S. i. (s) Walker v. Maitland, 5 B. & Aid. 171. («) Castdlain v. Preston, 1 1 Q. B. D. 380, at 387, 52 L. J. Q. B. 366, 49 L. T. N. S. 29, 31 W. R. 587. . NATURE OF CONTRACT. ; Insurance is at times called an aleatory contract. Aleatory So far as this means a contract involving risk or "*"'''^'"''' speculation, the term is well applied, since it is certainly a contract of mutual risk (u), wherein the premium is risked against the chance of loss. But if aleatory be taken to mean gaming or wagering, the term is mis- applied to insurance, for although risk is of the essence of the contract (v), the assured is moved to effect Difference insurance by the risk of loss, and does not create the conS of risk of loss by the contract itself, as is the case in a '"^uranoe and » . wager, pure wager; for m a pure wager the interest of the con- tracting parties in the event wagered on is created by the fact that they have contracted to pay each other certain sums in a certain event, but that neither sum is due until the event has been decided one way or other. Whereas in insurance the motive for the contract springs from the existence of something which may be lost, and the danger of loss thereby to the person who seeks insurance. And such person pays, and not merely risks money, in order to obtain security against the possible loss. In fact, unless the property insured is for a time subjected to the risk insured against, the contract of insurance, even if made, never operates, and the premium, though paid, is repayable : which illus- trates yet further the principle that the person seeking insurance must, for the contract to be effectual, have had some prospect of needing indemnity in losing the thing insured within the period of insurance. Trom this it may be seen, that effecting a contract of in- surance does not oblige the insured to run the risk named in the contract; for the contract being, as already said, contingent on the actual attaching of the risk, is not enforceable by either party till the risk is run; and premium paid before risk begun is paid subject to such contingency (w). While a policy does (u) Scottish Eqiiitalle v. Buist, 4 Court Sess. Cas. (4th series) 1076. [v) Tyrie v. Fletcher, 2 Cowper, 668. (w) Ibid. 666. 8 THE LAWS OF Dv'SUEANCE. When policy not attach till the risk begins, it can equally not attaches. attach after the risk is determined one way or other, except in those special insurances when both parties, being equally ignorant of the position of the thing in- sured, contract to insure it lost or not lost. lasurance and The similarities between insurance and suretyship o^Spared! go ^^r to prove further, if further proof were needed, that insurance is not a wagering contract. In both contracts there is chance of loss and an undertaking to indemnify ; but no one has ever yet termed suretyship a wagering contract. The aim under each contract is not to get favourable odds, but a sound security, and the contracts aim at shifting the danger of loss, and not at creating an opportunity of gain. And it may be observed that from the earliest times in this country, as may be seen by the treatise of Malyns (1622) and the Statute of Assurances (43 Eliz. c. 12), insurance inaurance is a has been regarded as a means of distributing the risk distributing 0* ^°^^ ^''^^ dividing adventures {i.e. risky mercantile loss. enterprises) among a number of persons. And when, in 1 681, the city of London attempted to establish a fire office, the aim of the Corporation was not to profit by wagering contracts, but to provide a security (the city lands) to meet losses by fire at such a charge as would indemnify them for their liabilities. The contract is From the fact that insurance is a contract to shift uberrima fidei. • t n xi. j i. ■ ■ -i a • i nsk flows the second great prmciple of insurance law, viz., that the contract is one requiring the utmost good faith {uherrimm fidei) on both sides. This rule applies to every form of insurances, fire, life, or marine {x), though not quite to its fullest ex- (») Zondon Assurance v. Mansel, 1 1 Ch. D. 363, 367, 48 L. J. Ch. 331, 27 W. E. 444, and cases there cited. But see WheeUon v. Hardisty, 8 E. & B. 232, 285, 27 L. J. Q. B. 241, 31 L. T. 303, 6 VP. R. 539: NATURE OF CONTRACT. 9 tent to guarantee insurance, which comes within the rules of suretyship. Under this rule complete disclosure must be made Assured's duty to the insurer of every fact going to establish the faotrtouching character of the risk to be shifted by the contract '■''''^• which is within the knowledge of the insurer, and which is not matter of common knowledge or speculation or mere opinion (3/). If the assured keeps back information which goes to establish the risk, or which would affect the willingness of the insurer to take it (except infor- mation as to his the assured's own personal character, as he can't be expected to speak ill of himself) (z), he will take nothing by the contract, but in the absence of fraud or some stipulation to the contrary, will be entitled to have his premium, if paid, returned to him. And where the insurer grants a policy, knowing that An insurer he will never run any risk thereunder, whether because invalidity of facts invalidate it or the risk is already determined ^e'^entera^nto in his utmost favour, he will be equally subject to it is stopped, the rvile of good faith, and will either be stopped from impugning the contract or held to have waived any breach of warranty or misrepresentation therein, or be liable to repay the premium received. The rule applies not only in the procuring or granting of the contract, but also while it lasts and after the risk has happened. If the insured accelerates the happening of the risk, Assured's duty or if, when it occurs, he refrains from doing what het°ppe„^gof ought to lessen the damage consequent thereon, he*'*®"^^- hazards his chances of recovering on the contract. The (y) Carter v. Boehm, 3 Burr. 1910. (z) Sun Mutual Co. v. Ocean Insurance Co. 107 U. S. (17 Otto.) 4S5. 10 THE LAWS OF INSURANCE. true view on. this subject is extremely well laid down in a recent Canadian case (a) as follows : — Duties of " An agreement to indemnify another from a named ass^d in case contingency carries with it the provision that the person to be protected shall neither wilfuUy cause a loss or purposely increase or inflame it by wilfully refraining from such obvious, easy, and ordinary exertion as may be always reasonably expected from a person wUling to act honestly towards him to whom he looks for indem- nity (6). If the assured wilfully prevents the inter- ference of others, to save the goods which would otherwise be destroyed or the working of the fire engines, &c., to extinguish the fire, preferring to see them destroyed, in reliance on his insurance, he thereby commits a fraud on the insurers, which releases them from their contract " (c.) "Where he wilfully refrains from and neglects to save the insured property, having no reasonable excuse therefor, and having ample means at his disposal so to do, I think a like rule should apply. If a man have an insurance on valuable jewellery kept in a small box of light weight and readily portable, if he see the house in which he and they are on fire, and he wilfully and intentionally leaves the box to be consumed when he could readily remove it, preferring to rely on his insurance, the mind naturally revolts from such conduct, as evidencing a dishonest mind and a fraudulent dis- regard of the rights of others " (d). The court in this case was careful to say that any act of the assured preventing his goods, &c., being saved, to disentitle him from his remedy under the policy, must be done with the fraudulent intention and purpose of throwing the loss on the insurers (e). (a) Devlin v. Queen Insurance Co., 46 XJ. C. (Q. B.) 611, 621. (6) See also Chandler v. Worcester Insurance Co., 57 Mass. (3 Cush. ) 328. (c) Devlin Queen Insurance Co., 46 TJ. C. (Q. B.) 611, 622. Hagarty, id) Hid. 46 U. C. (Q. B.) 611, 623. (e) Balestracci v. Fireman's Insurance Co., 34 Lomsiana Annual, 844. XATUBE OF CONTRACT. 1 1 This rule, of course, has its other side, that if a man Assured wiu is botmd to do his best for the insurer in case of a fire, whoU expense he is not bound to do so at his own cost, the risk °* '^""e , . , . , property. insured against having accrued. This result is well stated in an American case, Witherell v. Mari-ne Imur- ance Company, 49 Maine, 200, 206. If duty requires the occupants of a house which is saving in danger of being destroyed by fire to carry their ^l^^^l' property out of the door, or even to throw it from the American mle. windows rather than permit it to become a prey to the flames, they ought not to be the losers by fulfilling the obligation thus imposed on them ; nor can it make any matter whether the injury arises from the fracture of a mirror or other piece of furniture by the fall, or the abstraction by a thief of a bale of goods when it reaches the pavement. If the danger is imminent, even though the event shows that the goods would not have suffered at all if left alone, the insurers are still liable. The rule is, however, to a certain extent limited by the rules of general average contribution, and the insurers will not in every case be bound to meet the whole of such cost. Thus — In an American case (/), blankets were put on a cost of building by the assured to protect it from combustion p^^^neigh- through a neighbouring fire. The insurers approved touring house, of the act, and the building was thereby saved. The blankets, however, were spoilt, and an action was brought by the assured against the insurer for the cost of them. It was held that the loss was not covered by the policy, but that it was a subject of general average, to which the insurer and insured should con- tribute in proportion to the amount which they respec- tively had at risk in the store and its contents. It was also held that buildings in the neighbourhood, ^ — (/) Welles V. Boston Co., 23 Mass. (6 Pickering) 182. But see Thompson v. Montreal Co., 6 U. C. (Q. B.) 319. 12 THE LAWS OF INSURANCE. Whether fire policy on ship liable for average. Fire policy — land or sea. Contribution from neigh- bours. which would have been endangered if the store had taken fire, and upon some of which the defendants had made insurance, were too remotely affected to be liable to contribution. There is no question, of course, as to the application of the principle in marine insurance. American and English {g) courts have, however, differed as to whether a fire policy on a ship was a marine policy so as to be liable for average. But in England it is very common to insert an average condition in a mercantile fire policy which avoids all question as to the law which might otherwise be doubtful, average not being in its inception a part of insurance law (Ji). In any case it would seem possible to take a valid distinction between policies against risk of fire to part of a common adventure and risk of fire to property on land whose owners have no interest in common. It was on this principle that, in Weller v. Boston Insur- ance Company, 23 Mass. 182, the court declared that a man who saved his house from fire at cost to him- self, and thereby prevented the spread of a fire to other parts of the city, could not seek contribution from adjoining owners, saying that it " would not do to take so wide a range in the application of the prin- ciple of contribution. All the buildings in the city may remotely have been protected, and it would be impossible to draw the line." Fraudulent intent may be inferred from gross negli- gence (i), or from forbearance to use reasonable exer- tions and means at hand to put out a fire (k). (g) Imperial Marine Co. v. Fire Insurance Corporation, 4 C. P. D. 166, 48 L. J. C. P. 424, 40 L. T. N. S. 166, 27 W. R. 680, Merchants, dec, Co. V. Associated Firema/n's Co., 36 Am. Rep. 428. (A) Aitchison v. LoTire, 4 App. Cas. 755, 760, 49 L. J. Q. B. 123, 41 L. T. N. S. 323, 28 W. R. I. (i) Goodman v. Barney, 4 A. & E. 870, 876. (i) 44 L- J- C P. 185, 32 L. T. N. S. 170, 23 W. R. 733. Morocco Land Co. v. Fry, 11 Jur.N. S. 76, 11 L. T. N. S. 618, 13 W. R. 310. Fisher v. Liverpool Marine Co., h. R. 8 Q. B. 469. 22 THE LAWS OF INSURANCE. Married Women's Property Act, 1870, s. 10; or the Married Women's Property Act, 1882, s. II (/). It must be observed that the in- surers in this case did not dispute, though they had mistaken, the intestate's intention. Action on policy not delivered. If a policy has been duly signed and counter-signed, and is ready to be, although it had not been in fact, delivered by the insurers, it will be deemed to be so far delivered that the assured cannot sue in equity for the loss, on the ground of the policy not being a per- fected one, and therefore not sufficient to support an action at law (^r.) And where a policy purported to be signed, sealed, and delivered, and had in fact been signed and sealed, but had never left the ofi&ce of the company, the House of Lords held that there was a delivery (h). Policy must conform to contract. insiarance It has been held in Scotland that there may withoutpo icy, ]^g insurance without delivery of a policy if the terms are agreed and if the premium has been paid (i), and if the policy when issued does not conform to the true intent of the parties at the time when the insurance is agreed upon, it may be rectified or the true contract sued upon {j). If a parol con- tract be proved, it will not be held to have merged in a policy which is not in conformity with the parol agreement (/.;), and in such case the policy may be rectified so as to accord with the parol contract {I). And on most policies issued there is a notice to (/) Newman v. Belsten, Sol. Jour. 23 Feb. 1884, p. 301. (g) M'Farlane v. Andes Insurance Co., 20 Grant (U. C.) 486. (A) Xenos v. Wickham, L. R. 2 H. L. 296, 36 L. J. Ex. 313, 16 L. T. N. S. 800, 16 W. R. 38. Jones v. Provincial, 616 U. C. (Q. B.) 477. (i) Christie v. North British, 3 C. S. 0. (ist series) 519, 1825. Rossiter v. Trafalgar Life, 27 Beav. 377. (j) Albion Go. v. Mills, 3 Wils. & Shaw, Scotch, 218, 227 (H. L.) See Wylie v. Times Fire, 22 0. S. C. (2ud series) 1498. (h) RdiefPire Co. v. Shaw, 94 U. S. (4 Otto) 574. Newman v. Belsten, supra. {l) Motteux-v. London Assurance, i Atk. 545. Collett v. Morrison 21 L. J. Oh. 878, 9 Ha, 162. ' THE COIS'TEACT. 23 return them for correction if they are not accurately- set out. And an offer to insure on terms cannot be revoked after receipt or acceptance. Insurers usually issue the issue of policy policy even if the loss intervenes between the accept- '^ " °°^' ance and the usual time for issue (m). The person to sue on the policy is the person in whom the interest appears. Therefore where a policy was by deed poll and the Ambiguous covenant to pay was ambiguous as to the person prlsum"d to be with whom it was made, it was construed as heing ^^'^'^p^^^^"'' with the person in whom the interest appeared, and he was allowed to sue in his own name though he had not himself effected the policy (n). The proper mode of obtaining the benefit of an Remedy for agreement to insure would seem to be either to sue a^eement*to for a proper policy or to seek relief on the footing of si'^.nt policy, a proper policy having been issued. The latter course avoids circuity, and has been adopted in Canada and the United States (o). And in Canada the Supreme Court have held that an insurance company could be Company can't restrained from pleading want of a seal to a policy (^). seal. ''*°* ° This no doubt did substantial justice, and attained the end which might have been reached by a suit in equity for a proper policy ; but the law laid down is at least doubtful. (m) Mildred v. Maspons, 8 App. Ca. 874. (n) Moss V. Legal and General Life, I Victoria, Law, 315. Sunder- land Marine v. Kearney, 1 6 Q. B. 925. Hodson v. Observer Life Insur- ance, 8 E. & B. 40, 26 L. J. Q. B. 303, 29 L. T. 0. S. 278, 3 Jur. N. S. 1 125, S W. R. 712. Evans v. Bignold, L. E. 4 Q. B. 622, 38 L. J. Q. B. 293, 20 L. T. N. S. 659, 17 W. E. 882. (o) Penley v. Beacon Co., 7 (Grant) 17. C. 130. Machie v. European Co., 21 L. T. N. S. 102, 17 W. E. 987. (p) London Life Insurance Co. > . W7%ght, 5 Canada S. C. 466. 24 THE LAWS OF INSURANCE. Accepting It is usual to print upon a policy a notice requiring nSng"""*"* the assured to inspect it immediately on receipt and mistiike. return it for correction. But even if there be no such notice, if a man does not read his policy he has only himself to blame, and by not returning it if wrong, he may waive all right to complain subsequently of any mistakes contained in it {g). A policy may be altered by consent of parties, whether the alteration consists in correcting an error or an omission, or in variation of the terms of the- contract. But a material alteration of the policy by the assured without the consent of the insurer will be treated as a fraud, and avoid the contract (»•), Alteration of policy. Policy not according to agreement. When a mis- take will not be rectified. When on a proposal and agreement for an insurance- a policy is drawn up by the Insurance Office in a form differing from the terms of the agreement, and varies- the rights of the assured, the Court will look at the agreement and not at the policy (s). Where the mistake cannot be rectiiied, it seems that the contract- will be rescinded and a return of premiums ordered {t). Where a policy is not in accordance with the real terms of the agreement, but such terms though agreed on with the agent by the person seeking insurance- have not been by him, or at all, communicated to the insurer, or if communicated not adopted, rectification will not be ordered, but the policy will be declared not binding on the insurers, and they will have to re- (q) Wakins v. SymUl, 10 Q. B. D. 178, 52 L. J. Q. B. 121, 48 L. T.. N. S. 426, 31 W. R. 337. ()•) Liverpool, London, and Globe v. Wyld, 21 Grant, U. C. 458 ; 23; Grant, 442 ; I Canada, 604. Hill v. Pathn, 8 East. 373. French v. Patten, I Camp. 72, 180. Fairlie v. Christie, 7 Taunt. 416. Langhorn v. Co%ffln, 4 Taunt. 330. Sanderson v. Symonds, i B. &B. 426. Master V. Miller, 4 T. R. 320. («) OoUett V. Morrison, 9 Hare 162, 21 L. J. Ch. 878. Eenkle v. Royal Exchange, 1 Ves. Sr. 317. Parsons v. Bignold, 15 L. J. Ch. 379, 13 Sim, 518, 7 Jur. 591. Ball v. Storie, i S. & S. 210. But see M'Kenzie v, Coulson, 8 Eq. 368. (() Fowler v. Scottish Fquitable, 28 L. J. Ch. 225, 12 L. T. iig, £. Jur. N.S. 1169,7 W.R. 5. THE CONTRACT. 2$ pay the premiums paid, as money paid to them under a mistake (u). Subject to the power of proving that the policy does not embody the real terms agreed upon, no mate- rial terms may be imported into a written contract of insurance which the parties have not thought fit to insert (y). If a policy of assurance be lost or destroyed, an Loss of policy, action will nevertheless lie to recover the insurance SiXmSLd by money, and the order or judgment of the court directing iudgment. the office to pay, will be a sufficient indemnity against subsequent claims (w). Payment of a premium demanded on application for Premium— a policy does not give the applicant an absolute title payment"^ to a policy. But if the risk is rejected, or a higher premium demanded and refused, the insurer must offer to return the premium. Still the mere fact that the agent retains the premium by arrangement with the applicant, pending an effort to get the insurers to reconsider their decision, will not amount to a failure to repay (x). The interim protection notes given by fire insurance interim notes, companies bear an analogy to the slips commonly used in cases of marine insurances, preliminary to the issuing of policies (y). The slip contains the heads of the con- tract, and is itself a contract of insurance, but not a policy, and in virtue of certain enactments not enforce- able at law or in equity, but available in evidence where material. (m) Fowler v. Scottish Equitable, supra. («) Dudgeon v. Pembroke, 2 App. Cas. 284, 298, 46 L. J. Q. B. 409, 36 L. T. N. S. 382, 25 "W. K. 499. Gibson v. SmaU, 4 H. L. C. 353. (w) Orokatt v. Ford, 25 L. J. Oh. 552, 2 Jur. N. S. 436, 4 W. R. 426. England v. Tredegar, L. R. I Eq. 344, 35 L. J. Oh. 386, 35 Beav. 256. {x) Otterbein v. Iowa State Insurance Co., 57 Iowa, 274. {y) Queen Insurance Co. v. Parsons, 7 A. 0. 96, 125, 51 L. J. P. C. II, 45 L. T. N. S. 721. lonides v. Pacific, L. R. 7 Q. B. 517, 41 L. J. Q. B. 190, 26 L. T. N. S. 738, 21 W. R. 22. 26 THE LAWS OF INSURANCE. Interim notes. The interim note contains a proposal to effect an insurance on the companies' usual terms and con- ditions, and the interim insurance is made subject to those terms and conditions, and they ought to be read into the interim note so far as they are lawful ; and the note forms a contract of insurance during the interval between the proposal and the final acceptance or refusal of the insurers (z). Interim receipts. Interim receipts for the whole or part of the premium, and insuring the applicant for a month or until notice of rejection, are common in England, but have rarely been subjects of action (a). An insurance company are clearly entitled to make the insurance under an interim receipt subject to the conditions in the usual policy (6). Reference thereto in the receipt will affect the applicant with notice thereof (c). If the interim receipt be for so many days, and the policy contain a condition that the insurance may be terminated at any time within the period originally contracted for on ten days' notice, and the repayment of a rateable proportion of the premium for the unex- pired term, ten days' notice must be given to terminate the interim insurance and tender of the unearned part of the premium made (d). So if a fire happens within the period of interim insurance, but after notice that a regular insurance will not be issued, the insurance com- pany are bound for ten days after the notice given (e). But if the insurers give no notice of rejection, and (s) Queen Insurance Co. v. Parsons, 7 A. C. 96, 125, 51 L. J. P. 0. II, 45 L. T. N. S. 721. (a) Mackie v. European Co., 21 L. T. N. S. 102, 17 W. R. 987. (6) M'Queen v. Phcenix, 29 U. C. (C. P.) 511. (c) Queen Insurance Co. v. Parsons, 7 A. C. 96, 124 sqq. v. supra. (d) Grant v. Reliance Mutual Fire Co., 44 U. 0. Q. B. 229. (e) Ihid. - THE CONTRACT. 2/ do not issue a policy, it would seem that they will be taken to have elected to accept the proposal, and they ■will he liable thereon, unless, of course, it is stated that silence amounts to refusal to go on with the con- tract. Where an interim receipt was given on a form declaring that a policy would be issued in sixty days if approved, and the agent giving the receipt did not report the transaction, the insurers were held liable for his neglect and the absence of the policy — the receipt constituting a valid insurance (/ ). Policies against fire are frequently valued when on Valued policy ships, but rarely so in land insurance. They are not un- *sai°st fire. lawful {g), and the rules as to valuation in such a case are the same as in marine insurance {h). It is rare for a case to arise of a policy against fire Transaction on land, lost or not lost. But in Giffard v. Qimn's Suranfe!" Insurance Company {%), the plaintiff insured in the London and Liverpool Company from 2nd October 1865 to 2nd October 1866. Before the term ex- pired he received a notice from their sub-agent that the insurers would renew, and accordingly he paid the premium to him on their account. The general agent of the company declined to renew the policy, and paid the premium to the Queen Insurance Company (the defendants), who issued a policy, dated 1 6th Oct. 1 866, Policy dated but insuring from 2nd Oct. 1866 to 2nd Oct. 1867.'' The premises were destroyed by fire on 13 th October, before the policy was issued ; but the plaintiff did not know that he was insured by the defendants until he received the policy from the sub-agent, who also acted for the defendants. It was held that the transaction amounted to a reinsurance, and that the defendants iu Reinsurance. (/) Patterson v. Royal Insurance Co., 14 Grant U. C. 169. (g) 2 Phillips, 34, s. 121 1 sqq. sKentComm, 375, note d. Wallace V. Insurance Go., 4 Louisiana, 289. (A) As to which see Williams v. N. China Insurance Co., I C. P. D. 765, 35 L. T. N. S. 884. (i) I Hannay (New Brnns.) 432. 28 THE LAWS OF INSURANCE. effect'insured the property, " lost or not lost," in other "Burnt or not words, " bumt or not burnt," from 2nd Oct. 1866 to ''"'°'-" 2nd Oct. 1867. Open policy. In certain businesses in this country it seems to be the practice to take out an open policy against all risks by sea and land, and to provide that the assured may declare thereon so soon as he learns that property at his risk of the class insured is in transit to him, and whether such property is at the time lost or not. Firms which have to transmit valuable property or securities through the post thus insure them ; and even when simultaneously advised that such have been transmitted to them and lost, they can still, under such a policy, declare their loss, provided only that they observe good faith in the transaction. Floating Another class of policy is that termed a floating P°^"'y" policy. The amount of goods covered by such a policy is ascertainable at the moment of loss only, and to pro- tect the insurers, such a policy provides that the lia- bility of the insurers shall be only rateable. Thus if it be on a fluctuating amount of goods in a warehouse, and the amount there at the date of a fire exceed the amount of insurance, the owner will be his own insurer fro rata, and will not receive the whole of the insurance money. This kind of policy is adopted to prevent the assured from making his policy cover in effect a larger amount of goods than are fairly insurable at the premium paid. CONSTKUCTION OF POLICY. PoUoy as a " The same rule of construction which applies to all i^eother"'"^ other instruments, applies equally to a policy of instruments, insurance, viz., that it is to be construed according to its sense and meaning as collected, in the first place, CONSTRUCTION OF POLICY. 29 from the terms used in it, which terms are themselves to be understood in their plain, ordinary, and popular sense, unless they have generally in respect to the subject-matter, as by the known usage of trade or the like, acquired a peculiar sense distinct from the popular sense of the same words, or unless the context evidently points out that they must in the particular instance, and in order to effectuate the immediate intention of the parties to that contract, be understood in some other special and peculiar sense. " The only difference between policies of assurance Difference and other instruments in this respect is, that the pouIfeTand greater part of the printed language of them, being "^''^J instru- invariable and uniform, has acquired from use and practice a known and definite meaning, and that the words superadded in writing (subject, indeed, always to be governed in point of construction by the language and terms with which they are accompanied) are entitled, nevertheless, if there should be any reasonable doubt upon the sense and meaning of the whole, to have a greater effect attributed to them than to the printed words, inasmuch as the written words are the immediate language and terms selected by the parties themselves for the expression of their meaning, and the printed words are a general formula adapted equally to their case and that of all other contracting parties upon similar occasions and subjects '' {j). Lord Mansfield's view of the construction of policies was that " It is certain that in the construction of policies the strictum Jus or apex juris is not to be laid hold of ; Strictumjus but they are to be construed largely for the benefit of construotioD. trade and for the insured (k)." In the mercantile contract of insurance it is always Construction the custom to express the mutual bargain in short and {)) Jtobertson v. French, 4 East. 130, 135, per Lord EUenborough. (k) Pelly V. Royal Exchange, i Burr. 341, 348. 30 THE LAWS OF INSURANCE. conveutional terms. The assured is not meant to be bound to carry out his adventure in exact conformity with the words rigidly construed and confined to what is absolutely necessary, but the general words of the policy are intended to be construed so as to conform to the usual and ordinary method of pursuing the adventure (?). liberality of But liberality of construction can never justify in- no" Mifflr^ difference to the real purpose of a policy or warrant, the ence. recognition of an obligation which was not directly or by reasonable implication imposed by its terms, when those terms are fairly interpreted according to their natural and ordinary meaning (m). Policy con- The terms of a policy of life assurance being the oompanyr"^* language of the company, must be taken most strongly against them (n). This view is in accord with Anderson v. Fitzgerald, 4 H. L. C. 484, where Lord St. Leonards says — " It (the policy) is of course prepared by the company, and if, therefore, there should be any ambiguity in it, it must, according to law, be taken more strongly against the person who prepared it. The same view is well expressed in a recent Scotch case thus. T^ue meaning That is the true meaning of my contract, which I of a contract. . , , . . desire the other contractmg party to put upon it, not that which in my own favour I wrap up in general phrase (0). This is the same rule of construction as is applied to guarantees (p), and generally to all instruments pre- pared by one party and tendered to the other (q). {I) Pearson v. Commercial Union, i-A. C. 507, per Lord Penzance. (m) Ibid., I A. C. 510, 45 L. J. 761, 35 L. T. N. S. 445, 24 W. E. 951. (n) BiiTell V. Dryer, 9 App. Caa. 345. Notman v. Anchor Go., 4 C. B. N. S. 476, ,27 L. J. 0. P. 27s, 31 L. T. (0. S.) 202, 6 W. K. 688, 4 Jur. N. S. 712. Fitton v. Accidental Death, 17 0. B. N. S. 122, 34 L. J. C. P. 28. Smith v. Accidental, dec. Co., 22 L. T. N. S. 861, 39 L. J. Exch. 211, L. K. S Ex. 303. (0) Life Assn. of Scotland v. Foster, n C. S. C. (3rd series) 351, 371, (js) Eargrave v. Smee, 6 Bing. 244 ; Tindal, C. J. (2) Meyer v. Isaac, 6 M. & W. 605, 612, Alderson, B. CONSTRUCTION OF POLICY. 31 The tendency of judicial decisions is to pay more Courts look ■ regard to the policy and less to evidence of custom, thau^ouatom!^ The reason of this is that policies, especially fire and life, are drawn with more care and skill than formerly, and have been corrected in accordance with decisions, and made more distinct and precise with the growth of actuarial experience (r). Fire and life policies are drawn as legal and not mercantile docu- ments, and there are not many cases in which they can be construed with reference to mercantile custom, except in floating policies by wharfingers and others. In America the tendency is the same (s). When the interpretation of words or the construe- Custom may tion of a clause in the policy, that may be understood ambiguons in a sense more or less extensive, has not been fixed meaning. by judicial decisions, parol evidence may be admitted to show whether they have obtained by use and practice between the assurers and the assured any, and what, known and definite import (t). The usage - if proved will govern the construction (u). Where any doubt arises as to the meaning of a Words con- word the courts will usually construe it in its popular popuiar'sense. and not in its philosophical or scientific sense, on the principle that the parties expressed themselves in the ordinary language of men of business and owners of property, who have insured or are about to insure (v). For instance, fire will not be held to include ex- plosion, even where the explosion is due to ignition, , nor gas held to include all that chemists would include under the word. (r) See Pearson v. Commercial Union, I A. C. 510, O'Hagan. («) North British and Mercantile v. Liverpool, London, and Olobe, 46 L. J. Ch. 537, 5 Ch. D. 569, 36 L. T. N. S. 629. North British and Mercantile v. Moffat. L. R. 7 C. P. 25, 41 L. J. C. P. I, 25 L. T. N. S. 662, 20 W. B. 114. (t) Syers v. Bridge, 2 Doug. 527. \u) Crofts V. Marshall, 7 C. & P. S97- \v) Stanley v. Western Insurance, per Kelly, C. B. 37, L. J. Ex. 73, L. R. 3 Ex. 71, 17 L. T. N. S. 513, i6 W. R. 369. 32 THE LAWS OF INSURANCE. Custom cannot Primary stress must be laid on the language of language of the policy. If that be clear, no custom can be admitted policy- to contradict it, and no custom which is not a general custom of trade will be admitted (tv). This applies to all contracts of insurance, as to other mercantile contracts. Even if the latter are in short terms, unless there is dubiety or ambiguity in the con- tract, evidence of custom will not be received («). Explanation of Parol evidence may be adduced to explain, but not tom!^ ^^ ""^' to contradict, a written document, and in a commercial contract, mercantile custom will be the dictionary whence to draw explanations (y). But Lord Hatherley in the same case, said in effect that only the very strongest evidence of custom could impose a non- natural meaning on a contract whose terms have a plain natural sense and meaning. Thus a policy on a Policy on hard- general stock of hardware will not cover gunpowder, ^oiud°^^"°* ^^^ ^^ there be a condition against storage of gun- powder, powder, parol evidence will not be admissible that the parties understood hardware to include gunpowder in canisters {z). What covered If a person who is not a linendraper insures against Unenr^ fire his " stock-in-trade, household furniture, linen, wearing apparel and plate," the policy will not include and protect linendrapery goods subsequently purchased on speculation ; the word liinen in the policy will be confined to household linen, or linen used as apparel (a). Baiter's stock. The stock-in-trade of a baker does not mean his bread only (6). (w) Robertson v. Marjoribanhs, 2 Stark, 576. Blackett v. Soyal £x- change, 2 C. & J. 244, per Lyndhurst, 0. B. (249). (a;) Bowes v. Shand, 2 App. Cas. at 486 ; Lord Gordon, 46 L. J. Q. B. 561, 36 L. T. N. S. 857. (y) Bowes v. Shand, 2 App. Cas. 468, per Lord Cairns, 25 W. R. 730, (z) Mason v. Hartford If ire, 37 U. C. (Q. B.) 437. See BlackeU v. Royal Exchange, 2 C. & J. 244. (a) Watchorn v. Langford, 3 Camp. 423. (6) Moadinger v. Mechanics' Fire, ster v. de Tastot, 7 T. R. 157, 3 Kent Comm. 269. (c) Paterson v. Powell, 2 L. J. N. S. 0. P. 13, 9 Bing. 320, 620, 2 Mo. and So. 399, 773. (d) May Ins. 81. (e) Dwyer v. Edie, 2 Park Ins, 8 ed< 914. INSURABLE INTEREST. 45 Mr. Justice (now Lord) Blackburn said, " I appre- Difference hend that the distinction between a policy and a wager andwage?."^'"^ is this : a policy is, properly speaking, a contract to in- demnify the insured in respect of some interest which he has against the perils which he contemplates it will be liable to " (/). A wager in the form of a policy upon the sex of a Wager policy, person is a wagering policy within 14 Geo. III. c. 48 ; for a contract in the form of a policy does not cease to be a policy because the subject-matter of the in- surance is not exposed to peril {g), A man applied to the local agent of an insurance Policy awigned company for insurance on his own life. His proposal wht^payf *"°" was accepted, and the policy was prepared and sent to Premiums not the agent. The applicant did not pay for it, so a third person paid the premium and had his name filled into a blank assignment which had been left with the agent by the original applicant, and the majority of the Supreme Court of Canada held that this was not a wager policy (h). A person who has different kinds of interest in Different kinds property, may cover them all by one insurance without nled^not'be stating in the policy the number or nature of the spaoified. interests {%). But the subject-matter of the insurance must be correctly described (/). An insurable interest in mercantile language does not necessarily import an absolute right of property in the thing insured. A special or qualified interest is Special or equally the subject of insurance {Ic). mterest sufScient. Property without possession will constitute insurable (/) Wilson V. Jones, L.'R. 2 Ex. 150, per Blackburn, J. 36 L. J. Ex. 78, IS L. T. N. S. 669, IS W. R. 435. {g) Roebuck v. Hamerlon, 2 Cowp. 737. (A) Vezina v. New York Life, 6 Canada S. 0. 30. (i) CamUhers v. Sheddon, 6 Taunt. 14. (j) Crowley v. Cohen, 3 B. & Ad. 478, I L. J. N. S. K. B. 158. (A) De Forest v. Pulton Fire, I Hall, N. Y. Super. Court, 94, 115, which examines the cases very fully, and states their effect well.j 46 THE LAWS OF INSUKAWCE. Possession or interest (I), and a person in possession as the apparent suffice?^ *'" or presumptive owner has such an interest (m). Tortious disseizor. Goods sold but not delivered. In America a tortious disseizor has heen held to have an insurable interest (n). Even where a policy is " on goods sold but not de- livered," cases may arise in which the assured is not entitled to recover; for if the legal title has vested in the vendee, the goods are in law delivered even if not removed (o) ; but if the words " not removed " are in the policy, the insurers are liable (p ). A person who bargains for, and takes into his possession, an article of personal property on a hiring agreement, one of the terms of wtich agreement is that the property shall remain with the seller until the purchase-money be paid, has an insurable interest in the property, though the money is not fully paid (q). A man insuring a house in his possession built on the wrong land owing to an unskilful survey can re- cover on his policy, if he has insured bona fide (r). It has been decided in Canada that policies cover after-acquired goods which have been substituted for those originally insured (s). And the interest on the Continuity of subjcct-matters insured need not be continuous, since absence of continuity only means absence of risk (t). Property in goods pur- chased remaining ia vendor. Building on another's land. After-acquired goods. unnecessary. Lost or not lost. It is no answer to a policy on goods (lost or not lost) (l) Joyce V. Swann, 17 C. B, N. S. 84, 104. (m) Marks v. HamUUm, 7 Ex. 323, 21 L. J. Ex. 109, 18 L. T. 260, 16 Jur. 152. Lmgley v. Queen Ins. Co., i Han. (New Bruns.) 280. (n) Mayor of New YorkY. Brooklyn Fire, dke. Co., 41 Barb. N. Y. 231. Sweeney v. FranHin Co., 20 Pen. 337. (0) Lockhart v. Cooper, 42 Am. Rep. 514, {p) Waring v. Indemnity Fire Insurance Co., 45 N. Y. 606, 6 Am. Rep. 146. (5) Seed V. WiUiarmhwrg City Fire Insurance Co., 74 Maine, 537. (r) Stevenson v. Zondon and Lancashire Assurance Co., 26 U (Q. B.) 148. (s) Biitler v. Standard, 4 U. 0. (App.) 391. (t) Crozier v. Phoenix, 2 Han, (New Bruns.) 200. INSURABLE INTEREST. 47 that the interest on them was not acquired until after the loss (u). Although risk and property generally go together (v), Risk without they are not necessarily associated ; and the risk alone suffice. ^ "'' ■will suf&ce to sustain the insurance. The peril must be such that its happening might bring upon the assured a pecuniary loss, but it is sufficient that it might bring a So wui loss, and by no means necessary that it should certainly fos°s^*'" '*^ °^ have that consequence were it to happen {x). As before mentioned, an insurable interest must be interest must something more than mere anxiety regarding the safety of the thing insured, or hope of profit or ad- vantage in relation thereto; it need not amount to property in the thing insured, for if through special circumstances the property has not passed to the assured, yet if he has any beneficial right which is of a pecuniary value in the subject-matter of the insur- ance, or if it be at his risk, he has an interest which he may validly insure (y). In the case of an agreement to sell an expectancy Expectancy, under a will for so much money, and to repay the purchase-money if the expectation was not realised, the insured would have no more interest in the life or death of the person from whom the expectation arose than was created by the agreement to sell ; but it has been held that he would have an insurable interest (z). An insurable interest does not mean a perfect legal Perfect legal interest. If it did, there are some buildings on which it necessary, would be difficult for any one as owner to effect a valid insurance. In the case below cited (a) plaintiff had (u) Sutherland v. Pratt, 1 1 M. & W. 296, 3 1 1. {v) Anderson v. Morice, L. R. 10 C. P. at 619, per Blackburn, J., 23 L.^li. 10 C. P. at 619 per Blackburn, J., reported also 44 L. J. C. P. 10 341, 31 li. T. N. S. 65, 33, do. 3SS, 23 W. R. 180, 24 do. 30. (sc) Ibid. I App. Ca. 742, per Lord O'Hagan, 46 L. J. C. P. II, 35 L. T. N. S. 566, 25 W. E. 14. (y) Joyce V. Swann, 17 O. B. N. S. 84. (z) Cook V. Field, 15 Q. B. 460, 19 L. J. Q. B. 441, 16 L. T. Old Series 2, 14 Jur. 951. (o) Milli^an v. Equitable, die. Co., 16 Up, Can. (Q. B.), 314.] 48 THE LAWS OF INSURANCE. contracted to purchase the property insured, and had failed in making his payment punctually, hut was proceeding in equity to compel performance by the vendor, and it was held that he had an insurable interest. There must be a valid subsisting contract capable of being enforced between the parties them- selves in order to constitute an insurable interest or right of action against the insurer. Interest in respect of advances under parol agreement conferring equitable lien. The contract, however, need not be such as to pass the property in the thing insured, nor need there be such a transmutation of possession as to create a lien in the legal technical sense of that word. It is suffi- cient if the relationship between the parties is such as to constitute an actual equitable interest in the thing insured, and such an equitable interest will constitute an insurable interest. In a case decided in the Supreme Court of Canada (b), G made advances to B upon a vessel then in course of construction, upon the faith of a verbal agreement with B that after the vessel should be launched she should be placed in his hands for sale, and that out of the proceeds the advances so made should be paid. When the vessel was well advanced, C disclosed the facts and nature of his interest to the agent of the insurance company, and the company issued a policy of insurance against loss by fire to C. The vessel was still unfinished and in B's possession when she was burned. It was held on these facts that C's interest was an equitable interest, which was insurable, and therefore C was entitled to re- cover (c). Chambre, J. (whose views were ulti- mately adopted by the House of Lords), said, in Zucena v. Crawford, 3 B. and P. p. 1 04, " I am not dis- posed to question the authorities in general : on the con- trary, there appears to me to have been great propriety in establishing the contract of insurance whenever the (h) Clarke v. Scottish Imperial, 4 Canada, 192. (c) Ibid. INSURABLE INTEREST. 49 interest declared upon was, in the common understandvng of mankiiid, a real interest in or arising out of the thing insured, or so connected with it as to depend on the safety of the thing insured, and the risk insured against, without much regard to technical distinctions respecting property, still, however, excluding mere speculation or expectation, and interests created not otherwise than by gaming {d). The spirit of 19 Geo. II. c. 48 only requires that the policy shall not be a gaming policy (e). The ques- tion upon which the validity of the contract depends is not the exact quantum of the interest of the assured Quantum of at the time the contract was entered into, but did the '°**''^»*- defendants mean to game ? or was not there a loss against which they might indemnify themselves by a policy of insurance — not a certain, but a possible loss ? The case below cited was one in which the Court of Admiralty might have decreed the assured to pay damages and costs, and that was held suffi- cient to give an insurable interest (/). Whoever has an interest which the law will recognise in the preservation of a thing, or the con- tinuance of a life, may insure that thing or that life (g). INSURABLE INTEREST BUILDINGS. The insurance of buildings may be effected by any Any one one interested therein, who can recover to the extent Insure! ^ ^^^ of the injury to his interest. The owner of the fee simple may of course insure. Fee simple, possessing as he does the largest possible interest. So (d) Ebawortk v. Alliance Marine Insurance Co., 8 L. R. 0. P. 596, 619, 29 L. T. N. S. 479. (e) Page v. Fry, 2 B. & P. at p. 243, per Chambre, J. (/) Boehm v. Bell, 8 T. R. 162, per Laurence, J. \g) Dalloz, 1868, pt. i, 388. Branford v. Saunders, 25 W. R. 650. D 50 THE LAWS OF INSURANCE. Yearly, &c. tenants. may a life, a yearly, or even a weekly tenant insure in virtue of his interest in the property, and recover the value of such interest. Assured can If jn any of these cases of limited ownership an value of own insurance were effected under which the limited owner interest. recovered the full value of the property, he could not, it seems, retain such value for his own use, because the contract of fire insurance, like that of marine insurance, Bowen, L. J. is One of indemnity. In Castellain v. Preston (Ji), Bowen, L. J., said, " It is an illusion to suppose that the assured can in any case recover more than his loss. "We must look at the ordinary business rules. It is well known, of course, that a person with a limited interest may insure, and recover the whole value of the thing insured, but then his policy must be apt for the purpose, and he must have intended to so insure. Again, a person may insure for himself, or for himself and others, as in the case of carriers and wharfingers, or to take the case of a mortgagee, he is entitled to insure for other parties ; but if he only insures his own interest, he can only hold the damage to his own interest. That principle applies here. It was con- tended that a tenant from year to year may always recover the full value of the premises insured; but although that contention would appear to be supported by the language of Lord Justice James, in Bayner v. Preston, I cannot assent to it. It may be that the insurance companies do not as a rule take the trouble to ascertain the exact interest of the assured because in most cases the insurance is for the benefit of all concerned ; but if a case were to occur in which a yearly or a weekly tenant were to insure, meaning only to cover his own interest, he could not recover and hold the whole value of the house. ... It is true that in most cases the claim of the tenant from year to year, or for years, cannot be answered by (A) II Q. B. D. 380, 52 L. J. Q. B. 366, 49 L. T. N. S. 29, 31 W. E. ss8. INSURABLE INTEREST. 5 1 handing over to him what may be the marketable Marketable value of his property, and the reason is that he insures miafu?e*o^^^ more than the marketable value of his property, and he 1°^^- loses more than the marketable value of his property ; he loses the house in which he is living, and the beneficial enjoyment of the house, as well as its pecuniary value. ... A man cannot be compensated simply by paying him the marketable value of his interest. But it does not follow that he gets or can keep more than he has lost " (i). A joint-tenant or a tenant in common has such an Joint-tenants, interest in the entirety as will entitle him to insure the whole (/). A husband has an insurable interest in property Husband in settled to his wife's separate use, they residing together ^u?>rsepi° ate and sharing in the use of the property (k). »se. A building insured as appurtenant to the freehold An appur- can only be recovered for as such. Therefore when how^must b**" in such a case the assured's title to the freehold has ■■eoo^ered for failed, he cannot maintain a claim in respect of such a building on the ground of its being movable property, and so distinct from the freehold (I). Tenants have an insurable interest in the rent. Rent, which they are liable to continue paying after the premises are destroyed by fire (m). But if the con- tract of tenancy relieves them from liability they will not have insurable interest. In Scotland, where, if the premises are destroyed or rendered useless for the purpose for which he took them, the tenant can sur- (i) Oastellain v. Preston, 11 Q. B. D. 400, i, per Bowen, L. J., 49 L. T. N. S. 29, 52 L. J. Q. B. 366, 31 W. R. 557. (j) Page v. Fry, 2 B. & P. 240. m Ooultton V. Royal, i T. & F. 276. If) Sherhonnewu v. Beaver Mutual Fire Insurance Co., 33 U. C. (Q. B.) I, 30 U. C. (Q. B.) 472. (m) Marshall v. SchofieU, 47 L. T. N. S. 406, 31 W. R. 134, 52 L. J. Q. B. 58. 52 THE LAWS OF INSUKANCE, render them, he conseq^uently has no insurable interest in his rent (n). Bailees. A common carrier, pawnbroker, factor, broker, and wjiarfinger, have an insurable interest in the goods entrusted to them ; but if they insure the goods to their full value and receive it, they will, after satisfying their own claims, be trustees of the balance for the real owners (o). And in the recent case of Castdlain v. Preston (p), Bowen, L. J., said, " It is well known in marine and fire insurance, that a person who has a limited interest may insure nevertheless on the total value of the sub- ject-matter of the insurance, and he may recover the whole value, subject to these two provisions — ist, the form of his policy must be such as to enable him to recover the total value ; and, 2nd, he must intend to insure the whole value at the time." Consignees. Consignee in trust. The question has often been discussed whether factors or consignees for sale have an implied authority to insure for their principal ; and there seems no doubt that they may insure upon their own account to the extent of their own interest (q). They may insure both for themselves and for their principal, but are not positively bound to insure unless they have received instructions to do so, or have promised to insure, or the usages of trade or the habit of dealing between them and their principals raises an implied obligation to insure (r). Consignees having a power to sell, (») Allen V. Markland, 20 Sc. Law Rep. 267. Duff v. Fleming, 8 C. S. 0. (3rd Series) 769. (0) Sidaways v. Todd, 2 Stark 400. Armitage v. Winterhottom, I M. & G. 130. (p) Castellain v. Preston, 1 1 Q. B. D. 398, see p. 50. (j) Ebswortlh V. Alliance, dec, L. R. 8 C. P. 596, 29 L. T. N. S. 479. (r) Ebsworth v. Alliance, supra. Silverthorne v. OiUeipie, 9 TJ. C. Q. B. 414. Gooderham v. Marlett, 14 XJ. C. Q. B. 228. Woolf V. Sorncastle, I B. & P. 316, Story Agency, S. m. Conway v. Gray, 10 East. 536. Robertson v. HamUton, 14 East. 522. Knox v. Wood, I Camp. 543. Fragano v. Long, 4 B. & C. 219. Neale v. JJeerf, ^ S. & C. 657. INSURABLE INTEREST. S3 manage and dispose of the property subject to the rights of the consignor, and even consignees with a mere naked right to possession may insure if they state the interest to be in their principal (s). But it is doubtful whether a consignee insuring in his own name could in case of loss recover the whole value of the property from the underwriter holding the surplus beyond his own advances upon trust for the benefit of his principals (t). If, however, consignees did insure in their own names to the full value of the property, the consignors might even after loss ratify the insurance which would then enure for their benefit (u). A creditor has an insurable interest in goods volun- Consignee in tarily consi^med by his debtor to a third person in ™^ " trust for such creditor (v). The firm of De la Torre in Spain consigned goods to Dubois & Son in London, and indorsed the bill of lading to them, accompanied by a letter directing them to note the goods for certain creditors of De la Torre. It was held that Dubois & Son were to be considered as trustees for the creditors from the time the goods were put on board the ship, and that the creditors had an insurable interest in the goods (w). I . A merchant abroad, having effects in the Merchant and hands of his correspondents here, may compel them to '""'^S""®' procure an insurance for him, or hand over the effects (x). (j) Lucena v. Crawford, 2 B. & P. N. p. 324, per Lord Eldon, i Taunton, 325. CasteUain v. Preston, n Q. B. D. 398. Ebsworth v. Alliance, L. E. 8 C. P. at 623, 29 L, T. N. S. 479 supra. (I) Ebsvtorth v. Alliance, see p. 50. CasteUain v. Preston, L. R. n Q. B. D. 398, per Bowen, L. J. (u) Giffard v. The Queen, dsc. Co., i Hannay (New Brunswick), 432, 439. Williams v. North China Co., I 0. P. D. 757, 35 L. T. N. S. 884. Magedorn v. Oliverson, 2 M. & S. 485. (v) Hill V. Secretan, i B. & P. 315. (w) Ibid, {x) Smith V, Lascellet, 2 T. E. 189, per BuUer, J. 54 THE LAWS OF INSURAlfCE. 2. If a merchant here has been accustomed to pro- cure insurances here for his correspondent abroad in the usual course of business, the latter has a right to expect his orders for insurances to be obeyed, unless the former give notice to discontinue the course of dealing (y). 3. If bills of lading are sent with directions to insure, they cannot be accepted without obeying the order to insure. Limiting the broker to too small a premium, so that he cannot get a policy, amounts to disobedience {y). 4. If goods sent are mortgaged, and a direction to insure accompany the bill of lading and be not obeyed, foreclosure of the mortgage before receipt of the bill of lading wiU. not alter the force of the direction (y). Agent A person insuring as agent for another cannot con'dg"l'e. recover as a principal on the policy. So a consignee suing for indemnity on a policy effected in his own name on another's goods consigned to him, must show an iasurable interest in such goods, and can only recover so far as he has interest (z). If he has a lien on the special goods, he can recover to the extent thereof. If goods are not at the risk of the consignee or purchaser until a certain event, he has no insurable interest in them until that event has happened (a) ; but in Ilagedorn v. Oliverson, 2 M. & S. 48 5, the ship of the assured was held to be at risk, though he did not con- firm the insurance thereof till after the loss. [y) Smith v. LaseeUes, 2 T. R. 189, per BuUer, J. (z) Ousack V. Mutual Insurance Co., 6 Lr. Can. Jur. 97. Castellain V. Preston, ii Q. B. D. 380, 52 L. J. Q. B. 366, 49 L. T. N. S. 29, 31 W. R 557. (a) Anderson v. Morice, 4 Ap. Ca. 742, 46 L. J. C. P. 11, 35 L. T. N. S. 566, 25 W. R. 14. See also Lucena v. Crawford, 2 B. & P. N. R. 269, I Taunt. 325, Eldon. INSURABLE INTEREST. 55 Where a sale takes place the vendee's title is liable stoppage in to be defeated by the vendor's right to stop in transitu *''*''^'*"- (b) ; and if that right is exercised, the vendee ceases from the time of its exercise to have any insurable interest in the goods, which therefrom cease to be at his risk (c). If a bailee have no lien and no responsibility for the Bailee, safe custody of the goods entrusted to him, he has no insurable interest in himself, and can only insure on account of the persons interested, who may ratify such a contract ; and it would seem that he can recover the full value of the property insured as trustee for the true owners (d), though the latter were unaware of the insurance («). If he has not possession, his lien has not arisen or is lost (/). Lord Eldon said, in Lucena V. Crawford, 2 N". E. 324, "I cannot agree to the doctrine that an agent may insure in respect of his lien upon a subsequent performance of his contract. If he has a lien, he can insure the property in respect of it {g). As in the case of a repairer of a foreign ship " (A). A carrier has an insurable interest — ■ (L) In respect of his responsibility to the extent A carrier has to which he is responsible at common law (i), or interest. under the Carriers Acts {j), or his own special con- tract {k), which responsibility lasts during transit, and (5) As to the nature and conditions of the exercise of this right, see Kendall v. Stevens & Co., 11 Q. B. D. 356. (c) Clay V. Harrison, 10 B. & 0. 99. \d) NoHh British and Mercantile v. Moffatt, L. R. 7 0. P. 25, 41 L. J. C. P. discussing previously cited case, 20 W. R. 114, 20 L. T. N. S. 662. (e) But see Martineau v. Kitching, L. R. 7 Q. B. at 450, 41 L. J. Q. B. 227, 20 L. T. N. S. 836, 20 W. R. 769. (/) lUd. See also i Phillips, 179. \g) London and North-Western Railway v. Glyn, 28 L. J. Q. B. 188, I E. & E. 652, 7 W. R. 238, 33 L. T. 199. See Angell Insur., 114. (h) I Phillips, 179. (i) Forward v. Pittard, I T. R. 27. (j) Riley v. Eorne, S Bing. 220. Macklin v. Waterhouse, 5 Bing. 212. Carruthers v. Sheddon, 6 Taunt. 14. (ii;) Phcmix Co. t. Mrie Co., 10 Bissell (IT. S. Circuit Ot.) 18. Oakley V. Portsmouth, &c. Co., 11 Ex. R. 618, 25 L. J. Ex. 99. S6 THE LAWS OF INSURANCE. Carriers entitled to recover full value. for a reasonable time thereafter before delivery or awaiting delivery (Z). Thereafter he is only an ordinary bailee (m), and not, as he is commonly called, an insurer. (ii.) In respect of his lien on the goods for his cWrges (n). (iii.) In respect of his possession, which will enable him to insure the whole value and recover it, subject to the rights of the owner to claim the benefit of his policy (o). Where carriers insured against fire " goods their own and in trust as carriers," and one of the conditions of the policy was that " goods held in trust or on com- mission are to be insuped as such, otherwise the policy will jiot extend to cover such property," it was held that the plaintiffs were entitled to recover the full value of all the goods, and that they might be considered as having insured the goods which they held in trust as carriers for the benefit of the owners, for whom they would hold the amount recovered as trustees, after deducting what was due in respect of their own charges upon th§ goods (p). In America an action has been allowed by the owner of goods deposited with a forwarding agent on deposit, to recover a proportionate part of an insurance effected by the latter on merchandise generally held in trust or on commission (q). "Wharfinger. A wharfinger is not at common law responsible for {I) Coggs V. Bernard, 2 Eaym. 909. (m) WMers v. Monarch, 5 E. & B. 870, 25 L. J. Q. B. 102, 26 L. T. 217, 4 W. R. 245, 2 Jur. N. S. 375. (») Crowley v. Cohm, 3 B. & Ad. 478, i L. J. N. S. K. B. 158. (o) Parke, 567, 8th ed. (p) London and North-WesUrn Railway v. Olyn, i E. & E. 652, 28 L. J. Q. B. 188, 7 W. R. 238, 33 L. T. 199. (g) SUter v. Mom, 13 Pennsylvania, 218. INSURABLE INTEREST. 57 goods which are casually burnt on the premises (r), but sometimes a wharfinger or other bailee is liable to indemnify for fire by custom (s). When, however, no duty to indemnify or to insure is imposed upon the wharfinger or his firm, and there is no evidence that the insurance was made on the property or in the interest of the owner of the deposited goods, an in- surance by one partner will not be taken to have been made in the course of the firm's business, nor will the owner of the goods be allowed to recover from one partner the proceeds of a policy received by another (t). Where a wharfinger insures goods as "in trust or on commission for which he is responsible," goods deposited with him and sold by the importer, and for which the wharfinger has given delivery warrants, cease to be at his risk, and he has no insurable interest therein after the date of such warrant (u). Wharfingers, warehousemen, and commission agents, wharfingers, having goods in their premises, may insure them in "' their own names, and in case of loss may recover the full amount of insurance for the satisfaction of their own claims first, and hold the residue for the owner (v). Such insurance is not unusual, even when not ordered by the owners (x); and when made, it enures to their benefit. (r) Sidawaya v. Todd, 2 Stark, 401. (») North British and Mercantile v. London, Liverpool, and Olohe Co., 5 Oh. D. 569, 46 L. J. Oh. 537, 36 L. T. N. S. 629. (t) Armitage v. Winterhottom, i M. & G. 1 30. (u) North British and Mercantile v. Moffatt, 41 L. J. C. P. I, L. R. 7 0. P. 25, 25 L. T. N. S. 662, 20 W. R. 114. Lockhart v. Cooper, 42 Am. Rep. 514. (v) Armitage v. Wimterhottom, I M. & Gr. 130. Waters v. Monarch Co., S B. & B. 870, 25 L. J. Q. B. 102, 26 L. T. 217, 4 W. E. 245, 2 Jur. N. S. 375. London and North-Western Railway v. Glyn, i B. & E. 652, 28 L. J. Q. B. 188, 77 W. R. 238, 33 li. T. 199. De Forest v. Fulton Fire, i Hall 136 (N. Y.), i N. Y. Sup. Court (HaU), 94, 130. Sitter T. Morrs, 13 Pennsylvania St. 219. (k) Home Infwrance Co. v. Baltimore Warehouse Co., 3 Otto (93 U.S.) 527, 543- 5 8 THE LAWS OF INSURANCE. Factor's As to factor's interest in goods entrusted to him, see interest. the Factors Act, S & 6 Vic. c. 39. Commission -A- Commission agent is to all the world hut his agent. , .principal for all intents and purposes the owner of the goods, and in an insurance in his own name on the goods, if the policy was so intended, he can recover the full damage, and not merely the amount of advances on the goods, with interest, and their mercantile com- mission and charges as factors (y). Agent to And an agent to ohtain advances for his principal advances. OJ^ goods, if he render himself liable for any loss which may arise after their sale, has an insurable interest therein to the full amount of the loan (»). Blanket and Blanket and floating policies are sometimes issued poildefby to factors or to warehousemen intended only to cover special owners, margins Uninsured by other policies, or to cover nothing more than the limited interest which the factor or warehouseman may have in the property which he has in charge. It will make no differ- ence if the factors or parties are a company forbidden by their charter to insure the goods, which only pre- vents them taking risk by the bailment {a). Meaning of Goods the assured's own, and " in trust or on com- ■' in trust.' mission," were insured by a policy against fire, the assured being a wharfinger and warehouseman who had in his warehouse goods belonging to his customers, which were deposited with him in that capacity, and on which he had a lien for his charges for cartage and warehouse rent, but no further interest of his own. No charge was made to his customers for insurance, nor were they informed of the existence of his policy. (y) De Forest v. Fidton Pire Co., i N. Y. Sup. Court (Hall), 94. (2) O'Connor v. Imperial, 14 Lr. Can. Jur. 219. (a) Home Insurance Co. v. Baltimore Warehouse Co., 3 Otto (93 U.S.), 527. S4I. INSURABLE INTEREST. 59 The plaintiffs warehouse was burnt, with all the goods in it, and the company paid the value of his own goods and the amount of his lien on his customer's goods, but refused to pay the amount of the customer's interest in the goods beyond the lien. The court, how- ever, decided that the goods of the customer were in trust within the meaning of the policy, and that the assured was entitled to recover the entire value, and would be entitled to apply so much to cover his own interest, and would be trustee for the owners as to the rest. In giving judgment. Lord Campbell, C.-J., said, " What is meant in these policies by goods in trust ? I think it means goods with which the assured were entrusted, not goods held in trust in the strict technical sense" (&). If a policy contains the condition that goods held Goods "in in trust must be insured as such otherwise the policy will not cover them, the following test may be applied to determine whether the goods are held in trust and come within the condition. If there is reserved to the bailor the right to claim a redelivery of the property deposited, the bailment is generally within the con- dition and the property held on trust. But where there is a delivery of property on a contract for an equivalent in money or some other valuable commodity, and not for a return of the identical subject-matter in its original or an altered form, this is a transfer of the property for value and not a delivery in trust (c). " Goods the assured's own in trust or on com- insurer's mission for which they are responsible," were insured limited^to by a policy against fire. The goods were destroyed by *^a* °^ fire, and the question whether they were covered by the policy came before the court for determination. In giving the judgment of the court, Keating, J., after referring to the form of the policies in the cases of (i) Donaldson v. Manchester Ins. 14 C. S. C. (let series) 601. Waters v. Monarch, ) DowJcer v. Canada Life, 24 U. 0. Q. B. 591. Lomy v. Bourdieu, 2 Doug. 472, per Lord Mansfield. (a:) Duchett v. WiUiams, 3 L. J. N. S. Ex. 141, 2 Cr. & M. 348. Anderson v. Fitzgerald, 4 H. L. Ca. 484, 17 Jur. 995. 88 THE LAWS OF INSURANCE. Amount of premium evidence of materiality. Excess of authority by agent return of premium. eq^uitable, to compel the insurer either to take an enhanced premium or to return any portion of the premium paid. Nor can he in case of a loss recover the policy monies on the tender of the premium usually charged by the insurer on the actual risk run. Such conduct or events entitle the insurer to enforce a forfeiture or to waive it at his own option. When questions arise as to the materiality of facts not disclosed, the amount of premium which would have been charged on a risk, including these facts, is evidence to show that knowledge of the facts would have been material or immaterial to the insurer {y). It seems that if a premium be paid to the agent of an insurer in respect of a contract known, or which ought to be known, to be outside the scope of his agency, it is not recoverable from the insurer («). It may be observed that if the insurer receives the premium from his agent with knowledge of the nature of the insurance effected, he ratifies such contract, except in certain cases, in which the insurers are cor- porations with limited powers, and such ratification is ultra vires. But even there profit by an ^dtra vires act is unconscientious, and the assured can maintain an action for the premiums, and if the insurance company is in liquidation may prove for the same {a). If a policy be issued in fraud of the insurance company, the company would be bound to account to the assured for any benefit derived from the pre- miums (J). (y) Re Universal Non-Tariff Co., Forbes' claim, 19 Eq. 485, 44 L. J. Oh. 761, 23 W. R. 464, lonides v. Pender, L. R, 9 Q. B. 531, 43 L. J. N. S. Q. B. 227, 30 L. T. N. S. 547, 22 W. R. 884. lynch v. Duvsford, 14 East. 494. Lynch v. Hamilton, 3 Taunt. 37. (s) De Winton's Case, 34 L. T. 942. (a) Burgess and Stocli's case, 2 J. & H. 441, 31 L. J. Ch. 749, 10 W. R. 816. (V) AihentEum Life Insurance Co. v. Pooley, 3 De G. & J. 294, 28 L. J. Ch. 119, I Giff. 102, 5 Jur. N. S. 129. Wood's claim, 30 L. J. Ch. 373, 3 L. T. N. S. 878, 9 W. R. 366. Brown's claim, 10 W. R. 662, THE PREMIUM. 89 Agreements may be made for return of a part of Eetum of the premium in certain events or on the doing by the agZmSit!^ assured of certain things. Such agreements when made are to be construed by the court. By them, if the insurer is given a discretion to return the part, the court will not interfere with the exercise of such discretion by the insurer or his agents if reasonably exercised (c). In the absence of such a discretionary power, reserved by the contract, the insured will be bound to return the premium on the occurrence of the events or doing of the things specified. Where the policy does not accord with the proposals Policy at there is no contract, and consequently the premium if propo" als!''*^ paid must be repaid (d). Return of ■^ ^ ' premium. Where it is stipulated that premiums shall be paid Premiuma by a certain date, they must be so paid or the policy ^un^otuaiiyj is voidable at the election of the insurers (e), who may, however, waive the forfeiture, but are under no equitable obligation to do so upon tender of the premiums due (/). If an agent is designated as receiver and is changed, delay due to such change not notified to the assured will not create a forfeiture (^). So also if a foreign company gives up its office in the domicile of the assured, and has no legally con- stituted agent there (A). («) Manhy v. Gresham Life Co., 29 Beav. 439, 31 L. J. Ch. 94, 4 L. T. N. S. 347, 9 W. R. 547, 7 J«r- N. S. 383. {d) Fowler v. Scottish Jiquitable Co., 4 Jur. N. S. 1169, 28 L. J. Ch. 225, 7 W. R. 5, 32 L. T. 119. (e) See Klein v. New York Life, 104 U. S. (14 Otto) 88, Sup. Court TJ. S., and Thompson v. Insurance Co., 104 U. S. (14 Otto) 252. Phoenix v. Sheridan, 8 H. L. C. 74S, 31 L. J. Q. B. 91, 7 Jur. N. S. 174, 3 L. T. N. S. 564. (/) Cotton States y. Lester, 35 Am. Rep. 122, and cases in notes thereto. Thompson v. Insurance Co., 14 Otto (104 U. S.) 258. ig) Insurance Co. v. Eggleston, 96 U. S. (6 Otto) 572. {h)DoHon y,, Positive, 23 Lr. Can. Jur. 261, 90 THE LAWS OF INSUEANCE. Who to pay Payment of premiums must be made by the assured premmma. ^^ ^^ j^.^ authorised agent. Payment by a volunteer is not performance of the condition in a policy (i). No demand The insurer need not demand the premiums, and if requisite. jjjg insured does not receive the usual notice that a premium is due, and consequently omits to pay within the days of grace, he has no equity to recover on a policy which has lapsed or been forfeited by the default, though such omission as aforesaid has been purely accidental and in no sense intentional (/). Days of grace. When an insurance extends over a period of time during which more than one premium will become payable, a certain number of days — called days of grace — the number of which is usually fifteen, are allowed beyond the due day for the payment of the premiums. If a loss happen during these days of grace and whilst the premium is unpaid, the assured will have no right of action (except by express stipula- tion) for the amount of the policy. The legal effect of the days of grace is not to entitle the assured to recover for a loss during those days whilst the premium is unpaid, but to enable the insurance to be renewed and save the expense of a new policy and fresh stamps {k). Effect of days In giving judgment for the defendants in Tarleton ^vltimeto ^- Staniforth, Lord Kenyon said, "No policy is to have renew policy, existence until the premium is paid by one party and accepted by the other. In this case the loss un- fortunately happened in that interval of time when it was in suspense whether or not the policy would be renewed ; for at that moment the petitioner had not offered to pay, and of course the trustees had not (j) Whiting v. Massachusetts Co., 129 Mass. 240. Ij) Windus V. Tredegar, I J L. T. N. S. 108 (H. L.) Thompson v. Insurance Oo., 104 U. S. (14 Otto) 252. (i) Tarleton v. Stani/orth, S T. R. 695. Want v. Blunt, 12 East, 183. THE PREMIUM. 9 1 accepted the premium for the next half-year, I am therefore clearly of opinion that the defendants are not liable " (I). This decision was pronounced on the 4th July 1 794, and in consequence of it the Sun Fire Office on the loth of the same month published in the public newspapers an advertisement stating that " all persons insured in this office by policies taken out for one year or for a longer term are and always have been con- sidered by the managers as insured for fifteen days beyond the time of the expiration of their policies." After this advertisement one Salvin effected a policy and paid the premium, but before the expiration of the year the office gave him notice that unless he agreed to pay an increased premium they would not continue the insurance. To this the assured refused to accede, and his premises were destroyed by accidental fire after the expiration of the current year but within the fifteen days. The policy had been effected subject to the following article ; — " On bespeaking policies all persons are to make a deposit for the policy stamp- duty, and shall pay the premium to the next quarter day and from thence for one year more at least; and shall, as long as the managers agree to accept the same, make all future payments annually at the said office within fifteen days after the day limited by their respective policies, upon forfeiture of the benefit thereof; and no insurance is to take place until the premium is actually paid by the insured, his, her, or their agent or agents." "When the loss happened, the plaintiff had not paid or tendered the premium for another year and the office resisted his claim. Lord EUenborough, in giving judgment against the petitioner, said, "The effect of the article and advertisement is to give the parties an option for fifteen days to con- tinue the contract or not, with this advantage on the (I) TarUton v. Staniforth, S T. R. 695. 92 THE LAWS OF INSURANCE. part of the assured, that if a loss should happen during the fifteen days, though he have not paid his premium. Insurer may the ofiBce shall not after such loss determine the con- Burance at end tract, but that it shall be considered as if it had been wifhstending renewed; but this does not deprive them of the days of grace, power of determining the contract at the end of the term, by making their option within a reasonable time before the end of the period for which the insurance was made. Where the premium is received the effect of it is to give the assured an assurance for another year, to be computed from the expiration of the first policy, and not from the expiration of the following fifteen days. The office cannot determine the policy after the year during fifteen days of the following year in case a loss should happen during that period. But the office has the power at any time during the year of saying to the assured, we will not contract with you again, we will not receive from you the premium for another year; and by such declaration the object would cease for which the fifteen days were allowed, and as no premium would be in such case to be received, no indemnity could be claimed in respect of it. The consideration for the indemnity during the fifteen days is the premium which must be paid during that period, but when that cannot be any longer looked to or expected, the right to the indem- nity determines also " (m). Payment of overdue pre- mium, insurer and insured being ignorant that life has dropped. Acceptance by agent of premium after days of grace. Payment of premium after it is overdue, and after the death of the life, of which both the insurer and in- sured were unaware, will not rehabilitate the insurance so as to entitle the insured to the policy money (n). The local agent of an insurance company has no authority to bind the company by the acceptance of the premiiim after the days of grace have expired. (m) SaZvin v. James, 6 East. 571. (») Pritchard v. Merchants', iScc. Co., 3 0. B. N. S. 622, 27 L. J. C. P. 169, 30 L. T. 318, 2 Jur. N. S. 307, 6 W. R. 340. THE PREMIUM. 93 Mere debiting the agent with the premium by the pebitrngjagent npany is not ec[ui\ pany by the assured. , • T i J. i. i 0.1 with premium, company is not ec[uivalent to a payment to the com- Acceptance of the premium by the agent after the Acceptance of fifteen days and debiting the same to him in the com- agent'after'*' pany's books, will not amount to evidence of a new ^^^^ °^ ^''^''^' agreement between the company and the assured (o). A promise by the treasurer of an insurance com- promise by pany to see the premium paid does not bind the com- pfemium!'"^' pany, for he cannot pay them out of their own funds, and if he agrees to pay out of his own pocket the remedy of the assured would be against him and not against the company if he failed to do so (p ). Where two insurance companies had cross accounts, what amounts or insurances mutually granted, and by their course of premmms" dealing premiums due on policies effected by one com- ^g°o^„ta pany with the other were not paid in cash, but a receipt was given for each premium as if so paid within the time limited for the payment, and the pre- miums were entered as paid in the accounts, the accounts were settled from time to time, the balance struck, and payment made of the balance. A receipt was thus given for a premium on a policy effected by plaintiffs with defendants within the time for payment, and the amount was entered in account as paid by the plaintiffs. After the time for payment had elapsed, but before the next settlement of the current account, the life died. It was held that there had been a pay- ment of the premium sufficient to keep the policy alive (q). Mr. Solari effected a policy of insurance on his life (o) Acey v. Femie, 7 M. & W. 151, 10 L. J. Ex. 9. Bmteed v. West of England, S Ir. Oh. 553. (p) Buffwm V. LayetU Mutual Fire, 85 Mass. (3 All.) 360. (g) Prince of Wales Assurance Co. v. Eardivg, 1 E. B. & E. 183, 27 L. J. Q. B. N. S. 297, 4 Jur, N. S. 851. Bxisteed v. West of England Co., 5 Ir. Ch. 553. 94 THE LAWS OF INSURANCE. Last premium with the Aigus Insurance Company, and died without death not paid, having paid the last premium. The actuary of the paid b ™°°^^ company informed two of the directors that the policy mistake. had lapsed by reason of the non-payment of the pre- mium, and one of such directors wrote on the policy in pencil the word " lapsed." Subsequently, however, the insurance money was paid to the executor of Mr. Solari, the directors who drew the cheque having for- gotten the lapse of the policy. Lord Abinger, in giving judgment, said, "If the party makes the payment with fuU knowledge of the facts, although under ignor- ance of the law, there being no fraud on the other side, he cannot recover it back again. There may be also cases in which, although he might by investigation learn the state of facts more accurately, he declines to do so, and chooses to pay the money notwithstanding. In that case, there can be no doubt, he is equally bound. Then there is a third case, where the party had once a full knowledge of the facts, but has since forgotten them. I think the knowledge of the facts which dis- entitles the party from recovering must mean a know- ledge existing in the mind at the time of payment " (r). Insurance ' ' lost or not lost." No return of premium. When the risk is undertaken in any event, whether the thing to be insured is lost or not lost, burnt or not burnt, living or dead, the risk is based on the uncertainty in the minds of assurer and assured, and no return of premium can be had, except for fraud of the insurer since the policy attaches (when made) irrespectively of the condition of the subject-matter, such a policy being grounded on ignorance of both parties as to the state of the thing insured, instead of on knowledge of its safety and soundness (s). Premiums not apportionable. Premiums are especially excepted from the operation (r) KeUy v. Solari, 9 M. & W. £4. (s) Qiffard v. Q,ueen Insurance Co., I Hannay (New Bruns.) 432, 439i perj^Ritohie, C. J., now C. J. of Supreme Court of Canada. THE PREMIUM. 95 of the Apportionment Act, 1870 (t), which enacts that " nothing in this Act contained shall render apportion- able any annual sums payable in policies of assurance of any description." Eefusal to receive premiums after the risk has been Eefusai to accepted is ground for action for damages {v,), and it premiums, would seem that an action will lie for specific per- Remedy, formance of a contract to insure or grant a policy M. Where a contract of insurance is ultra vires, the where policy T-iv- 1 1. ^ • -IS! p ultra vires would-be insurer can only exonerate himself from premium must liability under such a contract by repaying the pre- ^^ "returned, miums which he has gained by the contract (x). Such a case arises where the policy is made with a corporation whose powers are limited by statute, charter, articles of association or otherwise, and such powers are exceeded. (<) 33 & 34. Vict. 0. 35, s. 6. (u) M'Kie V. Phoenix, 28 Missouri 383. Day v. Connecticut Co., 45 Conn. 480. {v) Linford v. Provincial Horse and Cattle, &€. Co., 34 Beav. 291, 10 Jur. N. S. 1066, II L. T. N. S. 330, S N. B. 29. Pe-dey v. Beacon, &c. Co., 7 Grant (Up. Can.) 130. (x) Re Phoenix Co., 2 J. & H.441, 31 L, J. Ch. 749, 10 W. R. 816. Bwge's v. Stock's Case. ( 96 ) CHAPTEE IV. THE EISK. Fixing the premium. The most important part of insurance is determination of the risk. The insurer can only adjust his premium profitably if he knows accurately the nature of the risk which he is asked to take upon himself ; and the assured, if he withholds from the insurer any necessary data for estimating the nature of the risk, which he ought to have supplied to the insurer, will, when a loss occurs, find that he has been insured only in name, and that by his own inadvertency he loses not only his property but probably also his premiums (a). For the rule that the utmost good faith must be observed, peculiar to this contract, requires that the insurer should be as well informed as the assured of all the circumstances constituting or increasing the risk which is offered to the insurer (&), and if he is not so informed in fact, from whatever cause, he is not liable to give any indemnity. Time policies. Most policies of insurance other than marine, and some marine policies, are time policies, taken out for a fixed and certain period of time. Under such policies the assurance expires at the latest moment of the last day therein named (c), unless a special time is named in the policy. And even if the days of grace are passed, many insurers will, if no loss has happened (a) Sibhald v. Hill, 2 Dow. (H. L.) 263. (6) Vide per Shee, J., in Bates v. Hewitt, L. R. 2 Q. B. 595, 610, 36 L. J. Q. B. 282, 15 W. R. 1 172. See art. 2485, CivE Code of Lr. Canada, which accords with ^English law. (c) Isaacs v. Royal, L. R. S Ex. 296, 39 L. J. Ex. 189, 22 L. T. N. S. 681, 18 W. R. 982. THE RISK. '^'J and no increase of risk has occurred, allow the policy to be rehabilitated on payment of the arrears with or without a fine for delay. Sometimes attempts are made to construe time policies as voyage policies (d), but the courts have not encouraged them. Voyage policies against land risks are sometimes Voyage taken out, but are not so common as time policies. Emd?^^ °" They cover the things insured between certain geo- graphical limits. Practically they amount to taking on the insurer the liability of the common carrier between the two ends of the journey, and in some cases the carrier is himself the insurer. Thus railway companies will grant insurances on goods carried by them for which they are not liable under the Carriers Acts. The risk begins in such policies when the goods start or get into the carriers' hands (e), and continue from then till arrival in the hands of the consignee or other specified determination of the transit, but they will not cover a deviation (/). No questions as to days of grace or the like can arise, since under the contract the liability lasts for the journey. The real question is what constitutes arrival. A common case of voyage policies on land risks is that of railway insurance tickets for a particular journey. Un- doubtedly these would not cover an intentional devia- tion from the route for which they were issued, but would cover risk of an accident caused by the points going wrong, and diverting the train from the direct route to a branch line. The commencement of the risk in the absence of Before deiiyery special stipulation is not conditional on the delivery to ° ^° "'^" (d) CrovHey v. Cohen, 3 B. & Ad. 478, i L. J. N. S. K. B. 158. Joyce V. Kennard, L. R. 7 Q. B. 78, 41 L. J. Q. B. 17, 25 L. T. N. S. 932, 20 W. B.. 233. (e) Boehm v. Corribe, 2 M. &. S. 172. (f) Pearson v. Commercial Union, I A. C. 498, 45 L. J. 0. P. 761, 35 L. T. N. S. 445, 24 W. R.-95I. But see Charlestown Railroad Co. V. Fitchbwg Mutual Fire, 73 Mass. 64, where carriages in use on a railway were held to be insured on a branch not owned by the assured. G 98 THE LAWS OF INSURANCE. the assured of the policy, provided that the first premium is paid, and that the contract is in all other respects complete, and in such a case even death before complete delivery of the policy is no bar to recovery unless so stipulated {g). And where a fire occurred after a deposit was paid to an agent, but before the policy was issued, the company was held liable Qi). Ei«k entire. The risk taken is entire. If it has once attached no apportionment of premium can take place, even if the policy subsequently becomes forfeit (i). Questions occasionally arise as to whether the risk is taken from year to year or from quarter to quarter {k) ; and where the annual premium being payable by quarterly instalments, with a proviso that if the assured should die before the whole of the quarterly payments become payable, the company should retain from the sum assured sufficient to pay the whole of the premiums for that year, the party died within the first twelve months after the third quarterly instalment was due but before it was paid, it was held that the assured could not recover, as the instalment had not been punctually paid {I). Poiiojr— A policy for a year covers all losses within the year exhausted by Up to the amount named. If half-a-dozen small fires one fire withm happen, the insurer must pay the damage on each. And it would seem that if a fire to the full amount happened for which the assured was indemnified from other sources, his policy would still be alive for the rest of his year and in case of another fire (m). {g) Cooper v. Pacific Mutual, 8 American Rep. 705. Newman v. Beliten, 76 L. T. 228, affirmed in 0. A. Feb. 14, 1884. (h) Machie v. European Assurance Co., 21 L. T. N. S. 102, 17 W. R. 987. (i) Tyrie v. Fletcher, 2 Cowp. 668, 33, 34 Vict. c. 35. (J) Want V. Munt, 12 East. 183. {I) Phoenix Life Assurance Co. v. Sheridan, 8 H. L. C. 745, 31 L. J. Q. B. 91, 3 L. T. N. S. 564, 7 Jur. N. S. 174. (m) Smith v. Colonial Mutual, 6 Victoria Law 2CX3. See Crowley v. Cohen, 3 B, & Ad. 478, l L. J. N. S. K. B. 158. THE RISK. gg This view must, it is submitted, be correct, for it would be absurd to contend that if a pair of curtains had been burnt and paid for, the whole liability of the insurer was thereby extinguished for the year (n). The only mode of extinguishing liability during the year is actually paying damage to the full amount insured. In fire policies the insurers frequently reserve the Termination of right to terminate the insurance either at the end of a ^^^ "^'^" year or period for which a premium is paid, or at any time on repaying the unearned proportion of premium. If they elect to terminate before, but do not repay the premium till after a fire, it would seem their election is stiU valid (o), as the notice may operate from its delivery, and need not name a future day for termina- tion (jj). The duration of life risk is purely a matter of con- Duration of tract, and depends on the terms of the policy under "^'^^ which each insurance is made. The dates between which the policy is expressed to Word " from." endure may be exclusive or inclusive, according to the form of expression used, and the context and subject- matter. In old policies the words, "for one year from the date," are found, and that raised a doubt whether the first day was exclusive or inclusive (q). At present all well-drawn policies name the days when insurance will begin and end, and whether such days are exclusive or inclusive, and even the hour of the day at which the insurer's liability ceases. If the hour (») See Crowley v. Cohen, 3 B. & Ad. 478, I L. J. K. B. 158 (1832), deciding against a contention that the policy was exhausted when goods to the amount named therein had been carried. (0) Cain V. Lancashire, 27 U. C. (Q. B.) 217. {p) lUd. 4S3- (2) Pughv. Duke of Leeds, 2Cowp. 714, Lord Holt's view in Howard's case, 2 Saik. 625, 1 Lord Raymond, 480, not followed. Isaacs v. Royal Exchange, L. R, 5 Ex. 296, 39 L. J. Ex. 189, 22 L, T. N. S. 681, 18 W. R. 982, 100 THE LAWS OF INSURANCE. were not specified, the insurance would continue to the last minute of the day, for ambiguous and doubtful phrases would be continued against the company. " Verba fortius accipiuntur contra proferentem." Word "until." The word "until" in a policy of insurance includes and extends the insurance over the last day of the period for which it is effected. Thus certain goods were insured against fire by a policy in which the insurance was expressed to be "from the 14th Feb. 1868 until the 14th Aug. 1868, and for so long after as the assured should pay the sum of 225 dollars at the time above mentioned." The goods were burnt in the night of 14th August 1868, the insurance not having been renewed, and it was held that the insurance continued during the 14th August, and the loss was therefore covered by it (r). Life policiea. Duration of, riak. If a man receives a mortal wound or contracts a mortal disease within the period for which the in- surance is expressed to continue, death must ensue within such period to enable the policy-money to be recovered. Death must occur during insurance. If it occur ever so short a time afterwards, the liability of the insurer is extinct (s). Life policies being in most cases for whole life generally, the question arising is usually not whether the death is within the time, but whether it is within the terms of the policy. But the other case occasionally arises. Men have sometimes been too ill to think about business when the time for paying their premiums comes (t), and if they die of the illness without the premium having been first paid, their representatives are at the mercy ()•) Isaacs V. Royal Inswwnce Co., L. K. S Ex, 296, 39 L. J. N. S. Exch. 189, 22 L. T. N. S. 681, 18 W. R. 982. («) Lockyer v. Ottley, i T. R. 254. In accident policies it is other- wise by express stipulation. (t) Wamt y. Blunt, 12 East. 183, 1810. THE RISK. 10 1 of the insurers. The court will construe the policy according to its express terms, and will not hold it sufficient that the conditions therein contained had been complied with as nearly as may be. In Want Oypre's V. Blunt (m) the stipulation was that the assured should inappUcabie. pay the premiums on a certain day with fifteen days' grace. He died within the days of grace, and his executors paid the premiums within them. But the Court of Queen's Bench interpreted the policy as meaning that the assured must be alive to pay the premium, and that the policy had expired in the ordi- nary course on the day when the new premium fell due (v). All facts and circumstances diminishing or increas- Elements of ing the likelihood that the event insured against will happen sooner or later are elements (x) constituting the risk to be undertaken by the insurer. In insurance against fire an exact (y) description oi Perils ab intra. property to be insured is most material in determining the risk (z). A wooden house in a town is far more likely to be burned down than a brick or stone building. A house in a street which has a party wall running right up to the roof is not in the same danger from fires in adjacent buildings as one not so divided off. A detached house is only subject to risks of fire from within. And some articles, such as gunpowder and petroleum, are only insurable at very high rates (m) Want V. Blunt, 12 East. 187. {v) In America a case occurred where a man on his way to pay his premium was paralysed and died. Howell v. Knickerboclcer, 4 Am. 675, 44 N. Y. 276. The court, not unanimously, upheld the policy. (x) See Boyd v. Dubois, 3 Camp. 133. Taylor v. Dunbar, L. E. 4 0. P. 206, 38 L. J. C. P. 178, 17 W. R. 382. {y) Friedlander v. London Assurance, I M. & Eob. 171. Dolaon v. Sotheby, M. & M. 90. {z) Newcastle Fire Co. v. M'Morran, 3 Dow. H. L. 255. Quin v. National Insurance Co., Jones & Carey, 316 (Ir.) Stokes v. Cox, i H. & N. 320, 26 L. J. Ex. 113, 28 L. T. 161, 3 Jur. N. S. 45, 5 W. R. 89. iSaiem, V. Thornton, 3 B. & B. 868, 2 W. R. 524, 23 L. J. Q. B. 362, 23L. T. 187, 18 Jur. 748.^ i02 THE LAWS OF INSURANCE. if insurable at all, while iron and stone in an iron- maker's or stone-mason's yard will rarely need insur- ance at all. Insurers will not usually insure against the inherent vices of anything, such as liability to spontaneous explosion or combustion (a), so if a horse is to be insured his vices are elements in the risk, as would be the state of a haystack. Elements of When a house is insured, not only its character * * "^ ■ and construction are elements in the risk, but also its locality ; for an insurance against fire necessarily has regard to the locality of the subject-matter of the policy, the risk being probably different according to the place where the subject of insurance happens to be (&). This has been held of a fire policy for three months on a ship in wet dock with liberty to go into dry dock, and the assured failed to recover because the vessel got outside the permitted limits, and was there burnt (c). Any special fact as to neighbouring buildings which would increase the risk, must also be disclosed ; e.g., that a fire has just happened next door (d). Locality had There are many cases of land insurance on mov- regar o. ^^-^^ things, such as railway stock, carriages, agricul- tural implements, and goods in transit. In such cases the position of the thing is not so essential to the risk as in insurance on houses and furniture. But even they are insured within certain limits, and if burnt or lost outside these limits, there would be (a) Dudgeon v. Pembrolce, 2 A. C. 296, 46 L. J. Q. B. 409, 36 L. T. N. S. 382, 25 W. R. 499. _ (6) Pearson v. Commercial Union, l A. C. at 505, 45 L. J. C. P. 761, 35 L. T. N. S. 445, 24 W. R 951. RoUand v. Notth Britishand Mer- cantile, 14 Lr. Can. Jur. 69. M'Vlure \._ Lancashire, 6 Irish Jur. (N. S.) 63, p. 72. (c) If the thing insured is movable property, removal usually ends the insurance. See case of agricultural implements in Gorman v. Eand- in-Hamd, Ir. L. R. 11 O.L. 224, and May Ins. 275 as to the American cases. (d) Bufe V. Turner, 6 Taunt. 338. THE BISK. 103 small chance of recovery (e). Thus if a Cheshire Salt Company's wa^on insnred between Xantwich and London had, by mistake of the London & Xorth- Westem Eailway, been carried off on to the Xorth "Wales line by the goods train which occasioned the Abergele accident, it would jjrobably be open to the insurers of that waggon to contend that such deviation relieved them, and that the London & Xorth-Westem Eailway only, if any one, would be liable. And in the ease of a life policy expressed to insure life policy against risk in a certain latitude, if the assured go to "^ a more insalubrious latitude and there die, his repre- sentatives cannot recover on the policy (/). Tobacco was insured as in Xos. 189, 191 of a Locality. _, - .,1 1 1 • o rm What within street. It never was m either, but m 107. Ihe rUk. court declined to rectify the j»olicy on the ground of mutual mistake, and would not alter it on the ground that the agente would have, with equal readiness, taken the risk in 187. The ground of decision was that locality is important, and that if it is specified the risk cannot be extended even to an adjoining building (^). Only those goods are within the risk which are in the place specified. The policy does not cover them if removed, except by assent of the insurers attested by endorsement on the policy (h). («) Peareon v. Commercial Union, uli gwpra. Grant v. Etna, 8 Jur. X. S. 705, 15 ilwre P. C. C. 516, 10 W. B. 772, 6 L. T. X. S. 735. If) See lieid v. Larmuter Fire Co., 90 X. Y. 302. FomUr v. Scottish EquiU/ik, 28 L. J. Ch. 225, 4 .Tut. X. S. 1169, 7 W. E,. 5, 32 L. T. 119. (y) Severance v. Coatinental lo^uro.nve Co., 5 Bissell (TJ. S. Circuit Court), 156. See Pearion v. Commercial Union, 1 A. C. 428, gupra. BoUand v. North British and Mercantile, 14 Iir. Can. Jur. 69. Sampson V, Security J'osuranee Co., 133 llass. 49. (A) Tlieohald v. JlaUway Passengers Co., 10 Ex. 45, 18 Jur. 583, 23 L. J. Ex. 249, 23 L. T. 222, 2 W. R. 528. M'Clure v. Lancashire Fire, 6 It. Jut. ST. 8. 63. Solland v. North British and Mercantile, 14 Lr. Can. Jur. 69. i04 THE LAWS OF mSUKANCE. Insurance local. Full infor- mation necessary. In Bollaihd v. North British and Mercantile{{) (a Cana- dian case), Mackay, J., said, " The place in which things are is always a motif determinant of the contract. It is of the essence thereof that the things and their posi- tion should be known by both parties. When goods are insured in a building, all information should be com- municated to the insurer to enable him to appreciate the risk; e.g., of what materials the building is, its situation, distance from other buildings, whether con- nected with others, and so forth. There must be perfect understanding as to the thing insured, other- wise there is no convention." And in mercantile fire policies, no risk is taken of goods loading or unloading unless specially bargained for. A fire risk does not include the risk of household furniture during removal, and it is conseciuently necessary either to insure (if desired) during removal, if it be to a great distance, or to make the carrier take the risk of fire. Goods covered Whether a policy covers goods in a place at the time at'date'ot^e. ^f a fire or only those which were there at the time when the policy was made and continue to be there at the time of the fire, depends on the wording of the policy or whether the goods are generally described or specifically indicated (j). Following this rule, the Irish Exchequer decided that new hay put on a rick which had been specifically insured, in substitution for hay which was thereon at time of insurance, was not within the policy (k). (i) 14 Lr. Can, Jur. 6g. Ij) Halhead v. Young, 6 E. & Bl. 312, 2 Jur. K S. 970, 25 L, J. Q. B, 290, 27 L. T. 100, 4 W. R. 530. Harrison t. EUis. 7 E. & BL 465, 3 Jur. N. S. 908, 26 L. J, Q. B, 239, 29 L. T. 76, 5 W, R. 494. (Tc) Gorman v. Hand-in- Hand, Irish Rep. 1 1 C. L. 224, 1877. British Ainerican Insurance v. Joseph, 9 Lr. Can. Rep. 448, THE RISK. lOS Where no specific description is given it would if goods not seem that a fire policy will cover goods in the place poiSy covers named to the amount, regardless of the bringing in ^amed™°'^°* or taking out of particular (I) articles, and taking account only of the quantity on the premises at time of the fire and the interest of the assured therein. But an ordinary fire policy is not like a merchant's floating policy in the mode in which the damage is calculated (m). The method indicated in Crowley v. Cohen only applies to policies where the risk is in several vehicles of transport. Nor will a household fire policy include the property of visitors or servants. The risk varies as the mode of user and insurers classify fire risks in buildings very much according to the use to which they are put. It is sufficient to state the use. The assured need User of subject not communicate facts relating to the general course of the particular trade for which the premises insured, or containing the things insured are used, as all these things are supposed to be within the knowledge of the insurer (n). That the house is empty also increases the risk. But this would be rather because the house while vacant would be unguarded, than because such occu- pancy comes under the head of user. In America leaving a house vacant is not a thing which would avoid a policy, except where special stipulations are made to that effect (o). Where a statement of intention to use the thing insured in a particular manner did not amount to a warranty that {I) Butler V. Standard Fire, 4 U. 0. (App.) 391. British American Insurance Qo. v. Joseph, 9 Lr. Can. Kep. 448. Qrozier v. Phcenix Co., 2 Hannay (New Bruns.), 200. (m) Thompson v. Montreal, 1850, 6 TJ. C. (Q. B.) 3 ig, Robinson, O.-J. Peddie v. Quelec Go., Stuart (Lower Canada) 174, 1824. (n) Per Shee, J. in Bates v. Hewitt, 2 L. R. (Q. B.) 595 at 610, 28 L. J. Q. B. 282, 15 W. R. 1 1 72. (0) Gattlin V. Springfield InsuraiKC Co., I Sumner (IT. S.) 434, Story, J. I06 THE LAWS OF INSURANCE. it should only be so used, the assured could recover although there had not been such user (p). steam-engine, The presence of a steam-engine on premises must user of. ^,g stated, but when it is known to be there, it need not be confined to one specific use unless so stipulated ; and a mere increase of danger in a new method of using a machine will not vitiate the insurance unless there be a condition to that effect (q). In Baocendale V. Harding a steam-engine was specified in a policy, but subsequently it was attached to a horizontal shaft which was carried through a floor and connected with other machines erected after the insurance was effected. The insurers were unaware of the erection of these machines, but on the premises being burnt the assured recovered from the company (r). Alterationg. Where alterations or new erections are made and assented to with or without extra premium, damage by fire originating in the new buildings will be within the policy (s). Exceptional In the absence of fraud a policy is not avoided by forpurposes^^' ''^s circumstancc that subsequently to the effecting of other than ^q policy a morc hazardous trade has without notice specined in ^ •' policy, even to the company been carried on upon the premises. increased does Thus, where premises were insured against fire by the as°su?eT*"* description of a granary and " a kiln for drying corn in recovering. usc " Communicating therewith, the policy was to be forfeited unless the buildings were accurately described and the trades carried on therein specified ; and if any alteration were made in the building or the risk of (p) Grant v. Etna Insurance Co., 15 Moore P. C. 516, 8 Jur. N. S. 705, 10 W. K. 772, 6 L. T. N. S. 735. (5) Whitehead v. Price, 2 Or. M. & R. 447, i Gale. 151. MayaU v. Mitford, I N. & P. 732, 6 A. & E. 670. Baxendale v. Harding, 4 H. & N. 445, 28 L. J. Ex. 236, 7 W. R 494. (?•) Baxendale v. Harding, supra. (s) Mackenzie v. Van Sickles, 17 TJ. 0. (Q. B.) 226. THE RISK. 107 fire increased, the alteration or increased risk was to be notified and allowed by endorsement on the policy, otherwise the insurance to be void. The assured carried on no trade in the kiln except drying corn, but on one occasion, without giving any notice to the insurers, he allowed the owner of some bark which had been wetted to dry it gratuitously in the kiln, and this occasioned a fire by which the premises were destroyed. Drying bark was a distinct trade from drying corn, and more hazardous, and insurers charged a higher premium for bark-kilns than corn-kilns ; but it was held that the assured was not precluded from recover- ing (t). In the case of Fim v. JReid, Pirn carried on the business of a paper-maker, and effected an insurance on the premises in which the business was carried on. Subsequently a large quantity of cotton waste was cleaned and dyed there. At the time of the fire some of this cotton waste was in the mill, and it appeared that insurance offices generally declined to insure premises where it was kept or used, yet the company was held liable (u). A coffee-house does not come under the head of Character'of inns, which are within the class of doubly hazardous Coffeehouse buildings. Insurance thereof at the ordinary rate """^ ^°^' would not be void. The question was only raised by a landlord seeking to eject for breach of covenant to insure (li). The character of the person assured is also material to the risk (x). This is a principal reason for the conditions restricting assignment usually inserted in fire policies. There is this difference between the {t) Shaw V. Sobberds, 6 Ad. & E. 75, 6 L. J. N. S. K. B. 106, l Nev. & j?er. 279. (m) 6 M. & G. I, 12 L. J. 0. P. 299. (v) Doe & Pitt v. Laming, 4 Camp, at 76 Bllenborough, 18 14. (x) Lynch v. Dahell, 4 Bro. P. C. 431, cited 2 A. & E. 577, I08 THE LAWS OF INSURANCE. assignment of land and sea policies, that in the former case the subject-matter is generally within control of the assignee, while in the latter both ship and goods are on the high seas and cannot be prejudicially affected by the assignment to a person who, though he owns them, cannot affect their condition till they reach port and the risk ends. The happening of many pre- vious fires on the assured's premises goes to character and must be disclosed. Title to the The title to the property of the assured is to some proper y. extent material to the risk : for an insurance without interest or title is an inducement to arson, offering prospects of profit. This, however, is met by the statute 14 Geo. III. 48, precluding the insured from recovering beyond his interest. In America, in the absence of the statute, the courts have met the diffi- culty by invoking the principles and policy of the Common Law. Insurers usually demand to be informed whether the interest in the house or property insured amounts to total or partial, absolute or limited ownership. But in this country, as regards houses, precautions are the less necessary, owing to the power of reinstatement given by section 8 3 of the old party Walls Act 1 7 7 4 (y). This section reduces the risk, as the insurance money may, under the provisions of this Act, be intercepted, and a maldjide insurance may thus become unavailing. The valuation of the things insured is also material to the risk, as, if it is excessive, it affords the assured a prospect of gain by the perils. But it is less material in fire than in marine policies, as the policy is open and not valued, and valuation is not very important until after a loss (2). (2/) C. 78, 14 Geo. III. 0. 78. (s) Jonides v. Pender, L. R. 9 Q. B. 531, 43 L. J. Q. B. 227, 30 L. T. N. S. S47, 22 W. R. 884. Britton v. Royal, 4 F. & F. 905, WiUes, J., 15 L. T. N. S. 72. THE EISK. 109 What may or may not be included in a fire risk very What the fire mucli depends upon the terms of the policy and con- covers, ditions. But the courts have laid down certain rules as to the construction of such policies as have come before them, which will control all such instruments in the absence of contradictory or varying stipulations. The word fire, in contracts of fire insurance, is taken "What word "fire"in- in its ordinary signification. It is not confined to dudes, any technical and restricted meaning, which might be applied to it on a scientific analysis of its nature and properties, nor should it receive that general and ex- tended signification, which, by a kind of figure of speech, is sometimes applied to the term, but it should be construed in its ordinary, popular sense. Unless there be actual ignition, and the loss be the effect of such ignition, the insurers are not liable; e.g., where sugar was spoilt by great heat through a register being closed, but there was no actual ignition, the company was held not liable (a). There must be actual ignition, and the loss must be the effect of such ignition. Wot that the identical property which the damage occurred should be ignited or consumed, but there must be a fire or burning, which is the proximate cause of the loss. It is immaterial how intense the heat may be ; unless it be the effect of ignition, it is not within the terms of the policy. The heat of the sun often con- tracts timber, from which losses occur, but they would not be considered losses by fire unless there be ignition, and the destruction arise from actual fire (6). The insurers agree to make good unto the assured What is within the risk. all such loss or damage to the property as shall happen by fire. Thus far there is no limit to their undertaking. (a) AusUn v. Drewe, 6 Taunt. 436, 4 Camp. 360, Holt, N. P. 126, 2 Marsh 130, considered in Scripture v. Lowell, 74 Mass. (10 Cush.) 356. (6) Bahcock v. Montgomery, &c., 6 Barb. N. Y. 637. no THE LAWS OF INSURANCE. Origin of fire does not matter. If the loss happen by fire, unless there was fraud on the part of the assured, it matters not how the flame was kindled, whether it be the result of accident or design, whether the torch be applied by the honest magistrate or the wicked incendiary, whether the purpose was to save the city as in New York, or the country as at Moscow, whether the fire be applied to gunpowder in the basement or by a burning shingle on the roof {Hillier v. Alleghany, 3 Penn. 472, p^r Grier, J.) ; and in Angell on insurance it is said, "Fire produced by the friction of a wheel in its axle, which consumes the wheel, is a loss of the wheel by fire. The burning of a barrel or other vessel containing quicklime which is accidentally submitted to the action of water, is a loss by fire as to the vessel, but the spoiling of the lime is not such a loss. So the spoiling or consuming of any two chemical fluids by process of combustion is not a loss by fire as to either of the substances, but as to any third body it is such loss. Similarly, heat or fire produced by vegetable fermentation, as when a hay-rick takes fire by its own heat, is not a loss by fire as to the vegetable collection, but as to assuring bodies it is" (Angell, iSS). Explosion. Insurance against fire does not include damage by mere heat and smoke from the ordinary fireplaces if there has not been actual ignition (c) ; nor will it include damage by explosion, unless specially stipu- lated, or there has been actually a fire within the building. On this ground the courts refused to grant damages for injury to property by the explosion of the Erith Powder Mills in 1864 (d), holdiag that damage by atmospheric concussion by explosion caused (c) Austin V. Drew, 6 Taunt. 436 (0. P.), 1816, 4 Camp. 360, Holt, N. P. 126, 2 Marsh C. P. 130. {d) Everett v. London Assurance, 19 0. B. N. S. 126, 11 Jur. N. S. 546, 34 L. J. 0. P. 299, 13 W. R. 862, 6 N. B. 234. In Taunton v. the Royal, 2 H. & M. 135, 33 L. J. Oh. 406, 10 L. T. N. S. 156, 12 W. R. S49> it was held that a company could as a matter of business pay for loss by explosion not covered by policy if it seemed in interest of company. THE RISK. I I I by fire was too remote. Bramwell, B., explaiaed fire as meaning either ignition of the article itself or a part of the premises where it is. Under this rule, damage by explosion within the house is not within the risk, even when it occurs in the course of a fire in the house, nor is the damage by such explosion part of the damage caused by the fire (e). But it is usual to insure specifically against explosion of gas in domestic use, and by the word " gas " coal-gas for lighting purposes is meant, though, scientifically speaking, innumerable other substances are of a gaseous nature (/). In America, where an insured building was blown Explosion, down and the wind was alleged to have blown fire into contact with escaping gases, the insurer was held not liable, as the policy contained a condition against explosion unless fire ensued (^). In America gunpowder is held a fire risk (h). Gunpowder. Most if not all policies of insurance contain a con- dition that the policy is to be void if at any time there is more than a certain amount therein stated of gun- powder kept on the premises, unless special provision be made therein for the storing of a large quantity. Such a condition is not unreasonable, and breach thereof avoids the policy, and the condition is not dis- charged by specification of the stock-in-trade as in- cluding hazardous goods in the policy (i). Though gunpowder was described in one condition endorsed on the policy as of the class hazardous, this (e) Stanley v. Western, L. R. 3 Ex. 71, 37 L. J. Ex. 73, 17 L. T. N. S. S13, 16 W. R. 369. (/) Stanley v. Western Insurance Co., ubi sup. [g) Transatlantic Mre v. Dorsey, 40 Am. Rep. 403. {%) Waters v. Merchants, 11 Peters, U. S. 218. (i) M'Ewan v. Quihridge, 13 Moore P. 0. 304, 8 W. R. 265. 112 THE LAWS OF INSURANCE. Loas. Proximnte cause. condition could not be held to control the express limita- tion in another condition of the amount of gunpowder which the insurer would allow under the policy ; and where a form of policy used on houses and goods was granted to a vessel plying on the Canadian lakes and rivers, without striking out the conditions inapplicable to the vessel, but adding that the provisos, &c., should take effect so far as applicable, the Privy Council held that the gunpowder condition applied and had been broken (k). It must be shown, if required, that the loss was proximately and immediately (not remotely) caused by one of the perils insured against (I). Usually this is a question of inference from the facts proved at the trial, or interpretation of terms used in the policy (m). Where the insurance is against fire, damage by heat not within the policy (»). Nor is di water a fire-loss within marine policy (o). Excessive heaUn manu. ^^ not within the policy (n). Nor is damage by hot facturing. Lightning. Evcn the danger of lightning is excluded from the fire risk, unless it actually ignites the insured property or part thereof. Electricity is not fire in the popular sense, nor is damage caused by it necessarily damage by ignition. Policies usually give the assured notice that they will not take the risk of damage by lightning unless it fires the subject-matter (p) ; and this not to {h) Beacon, v. Oiib, i Moore P. 0. N. S. 73, 9 Jur. N. S. 185, 77 L. T. N. S. 574, iiW. R. 194. (I) Ma/raden v. City and County Assurance, L. R. i 0. P. 232, 35 L. J. 0. P. 60, 14 W. R, 106. Everett v. London Assurance, 19 C. B. N. S. 126, 34 L. J. C. P. 299, 13 W. R. 862, II Jur. N. S. 546, 6 N. R. 234. (m) New York Express Co. v. Traders' Inswrance Co., 132 Mass. 337. Insurance Co. v. Transportation Co., 12 Wallace TJ. S. 194, (n) Atkinson v. Newcastle Co., L. R. 6 Ex. 404, 2 Ex. D. 441. . (0) Siordet v. ffaU, 4 Bing. 607. See White v. jRepuhlic Co., S7 Maine, 91. Lewis v. Springfield Co., 76 Mass. (10 Gray) 159. City Insurance Co. v. Corlies, 21 Wend. N. Y. 367. Case v. Hartford Co., 13 Illinois, 676. Witherell v. Maine Insurance Co., 49 Maine, 200. ( p) Everett v. London Assuramce, 19 C. B. N. S. 1 26, 34 L. j. 0. P. 299, 13 W. R. 862, II Jur. N. S. 546. THE RISK. I I 3 contract themselves out of a common-law liability {q), but simply to protect themselves against unfounded claims. In this, as in many cases, the policies merely bring to the notice of the assured the ordinary rules of insurance law. A fire risk covers on land the negligence of the Negligence, assured, his servants, and strangers (r). An insur- ance on goods carried by land will usually cover negligence of the carrier, his servants, and agents ; and risk of miscarriage generally (s). No wilful act of the insured is covered (f). But arson by a wife will not disentitle the husband from recovering if no crime be shown to have been committed by him (u). Gross neglect has in America been held quasi male- ficio, and inconsistent with good faith {v). Since fire policies usually (w), but not always {x), Eisk from cover risk of incendiarism, the existence of any cir- should b?^ cumstances making an applicant liable to have his ^soiosed. property burnt may be material to be known by the insurer. If a man has from his unpopularity, or from any other cause, good reason to fear that fire will be set to his premises, and he insures without mentioning the fact, his policy will be void for breach of good faith; for it (j) Babeock v. Montgomery, &c. Co., 6 Barb. (N.Y.) 637 (1849), fully discusses the question as to lightning, and decides that destruction by lightning is not within a fire risk. (?■) Bush V. Royal Exchange, 2 B. & Aid. 73. Oihson v. Small, 4 H. L. 0. 353. Shaw v. RoUerds, i N. & P. 279, 287, 6 Ad. & B. 75, 6 L. J. N. S. K. B. 106. Dobson v, Sotheby, 1 Mood. & Mai. 90. Austin V. Drewe, 6 Taunt. 436, I Holt N. P. 126, 4 Camp. 360, 2 Marsh. 0. P. 130. (3) Boehm v. Combe, 2 M. & S. 172. Columbia Co. v. Lawrence, 10 Peters, 507. (t) Thwrtell v. Beaumont, i Bing. 339, 8 Moore (0. P.) 612, 2 L. J. C. P. 4. («) Midland Insurance Co. v. Smith, 6 Q. B. D. 561, 50 L. J. Q. B. 329, 45 L. T. N. S. 411, 29 W. R 850. (f) Fletcher v. Commonwealth, 35 Mass. (8 Pickering) 421. Cf. Dalloz, Jurisp. gen., 1868, p. 29. {w) Midland Insurance Co. v. Smith, 6 Q. B. D. 561, 50 L. J. Q. B. 329, 45 L. T. N. S. 411, 29 W. R. 850. {x) Qorman v. Hand-in-Hand, Ir. Eep. 1 1 C. L. 224. H 114 THE LAWS OF mSUEANCE. is clear that an attempt or threat to set fire to pro- perty on which insurance is sought is a fact of great importance for the insurer's consideration, and pre- sumptively always material to the risk {y). So also A fortiori attempts made to burn the pro- perty must be disclosed {z), if recent. Neighbours' go also if a neighbour is threatened with an danger , material. incendiary fire, and the adjacency of the tenements makes risk to him risk to the applicant {a). This would appear to follow from the general rule tliat material facts must be disclosed unasked (&). Threat during But if the threat be merely one made in time of excitement, popular excitement, which has subsided some tiihe before application for insurance, there will be no need to mention it (c). Question as to Where the insurer asks in the application form ""^ '■ whether the applicant has any reason to fear an incendiary fire, the question must be truly answered or the policy will be void. If threats have been made, he must disclose them under such a question which goes to facts rather than his impressions. Eeasonabie What a man has reason to fear must be determined by considering what a reasonably prudent man, not an extremely timid or suspicious man, would consider gave him some reason for believing in the existence of danger. He may not be bound to mention every idle rumour (d), but the smallest measure of duty im- (y) North American Fire v. Tliroop, 22 Michigan, 167, 7 Am. Rep. 638. Walden v. Louisiana, die. Co., 12 Louisiana (O. S.) 134. (z) Beehee v. Ba/rtford County Insurance Co., 25 Conn. 51. (a) Cf. Bufe v. Turner, 6 Taunt. 338. (6) Lindmau v. Desborough, 8 B. & 0. 586. Carter v. Boehm, 3 Burr. 1905. (c) Kelly V. Eochelaga Co., 24 Lr. Can. Jur. 298. Goodwin v. Lanca- shire Fire Co., 18 Lr. Can. Jur. i. See Pim v. Reid, 6 M. & G. 10, 12 L. J. C. P. 299. Curry v. Commonwealth, 27 Mass. (10 Pickering) 535- (d) New York Bowery Co. v. New York Fia'e, 17 Wend. (N. Y.) 359, 381. THE RISK. IIS posed upon him is to disclose what would seem to a reasonably prudent man to imply some risk. The duty to answer such question by stating threats made Care by is not altered by their having induced the applicant to aUerdlity to take additional care (e). disclose. And to the question, " Is any incendiary danger apprehended or threatened ? " a negative answer would in the same circumstances be untrue (/). And where a man to such a question answers " No," Evidence of while he is at the very moment showing his direct ^^^^' dread of an incendiary fire by watching against it and' seeking insurance, such acts are strong evidence that he had reason to fear such a fire (ff). Even where incendiary fires are excepted from a risk, onus of proof the onus of proof that the fire was deliberately caused '"^ '"^^urer. lies on the insurers ; and if the evidence leaves it doubtful whether the fire was caused by accident or design, the judge is right in refusing to direct a verdict for the insurers (h). If a man takes an assignment of a policy, he does Policy so subject to all the rights, &c. operative against the Argon by°*' assignor ; and if the assignor burns the place down, the assignor, assignee can't recover. This has been decided in Canada as to a mortgage by assignment. The consent of the insurers to the assignment will not help the assignee, as it does not create a new contract (i). Of course a mortgagee's policy, effected by him at his own cost on his mortgage interest only, would not be affected by arson of the mortgagor. (e) Moss, C. J., in Greet v. Citizens' Insurance Co., 5 U. 0. (App.) 596, 601. (/) Herlert v. Mercantile Fire Co., 43 TJ. 0. (Q. B.) 384. Oreet v. Citizens' Insurance Co., 5 U. C. (App.) 596. (g) Campbell v. Victoria Mutual Fire Insurance Co., 45 U. C. (Q. B.) 412. (h) Gorman v. ffand-in-Hand, Ir. Eep. 1 1 C. L. 224. (i) Chisholm v. Provincial Insurance Co., 20 U. 0. (0. P.) 11. I I 6 THE LAWS OF INSURANCE. Arson by wife Where a fire is caused on insured premises by the asavTred^no"^ wllful act of a third person, to which the insured is in defence to ^q ^^y privy, however near the relationship of the insurer, j r j ^ jt offender to the insured, the insurer is liable (i). Even if the premises insured are set on fire by the wife of the assured, the insurer has no defence. The doctrine of agency as between husband and wife does not extend to crimes {k). Arson must be If the assured himself fired the premises, or the anTndictment! ^^^6 be by his procurement, of course he cannot recover ; but if the defence of arson be raised, such evidence must be adduced in support thereof as would be required to convict the assured upon an indictment for arson, and the jury must be as fully satisfied that the crime charged is made out as would warrant their finding him guilty on such an indictment. This is the rule in Great Britain, followed in Canada (V). The American courts incline to hold that evidence not strong enough to support a conviction for arson would be strong enough to defeat the claim of the assured (m). Fire risk, what " If the ship is destroyed by fire, it is of no con- inoiudedin. sequence whether this is occasioned by a common Fire occasioned accident or by lightning, or by an act done in duty to in duty'to thT the State " (ji) ; and it has been held that if a ship is burnt state. without any fault in the master, from an apprehension that she has the plague on board, and to prevent the (i) Midland Insurance Co. v. Smith, 6 Q. B. D. 561, 50 L. J. Q. B. 329, 45 L. T. N. S. 411, 29 "W. R. 850. Schmidt v. New Yorh Union Mutual, 67 Mass. ( i Gray) 529. (i) Midland Insurance Co. v. Smith, supra. Gove v. Farmers' Mutual Fire Insurance, 48 N. H. 41. {I) Thurtell v. Beaumont, 8 Moore (0. P.) 612, i Bing. 339, 2 L. J. 0. P. 4. Britten v. Boyal, 15 L. T. N. S. 73, 4 P. & F. 905. Hercules v. Hunter, 15 Ot. Sess. Cas. (ist series) 800. Lambkin v. Ontario Mutual Fire, 12 U. 0. Q. B. 578 (1855). (m) Scott V. Home, 1 DiUon, C. Ot. (IT. S.) 105, and see May, p. 889, 2nd ed. and Sansum, cc. 148-150. (n) Gordon v. Memmington, I Camp. 123, Pothier, par Dupin, vol. 4, p. 457. s. S3- THE aiSK. 1 I 7 infection from spreading, the assured is entitled to recover (o). Where a fire has actually occurred, it must be the Damage proximate cause of the loss or damage to bring it extinguishing within the policy, but damage resulting from an ap- ^'^^' parently necessary and hona-fide effort to put out a fire, whether by spoiling goods with water or throwing furniture out of window, or blowing up a neighbouring house to arrest the course of the fire, or any loss directly resulting from the fire, will be treated as within the risk (ji). Within the metropolitan district any damage done Damage by fire by the fire brigade, in due execution of its duties, is to ^"sade. be treated as damage by fire within the meaning of any policy against fire {q). So where an officer of the brigade finds it necessary to occupy or destroy a neighbouring house so as to stop the spread of a fire, and furniture is damaged by the brigade removing it for such purposes, the insurer is liable. Where one part of a house occupied by one tenant Damage by ,i„, liii ijii water to others catches .fire, damage done to the property or another than assured, tenant by water in the effort to put out the fire, is within fire policy on the goods of the second (r). Where municipal authorities blow up houses to stay Destruction of the progress of a fire, the insurers will, it seems, be liable munki/ai ^ for the damage caused, quite irrespective of provisions ai^tliorities. in local acts. I. If the authorities act illegally, it is not a case of (o) Emerigon, torn. I, p. 434. (p) Stanley v. Western, 37 L. J. Q. B. at 75, Kelly 0. B., L. R. 3 Ex. 71, 17 L. T. N. S. 513, 16 W. K. 369. Baboock v. Montgomery, 6 Barb. N. Y. 637. (g) 28, 29 Vict. 90, s. 12. (r) Gekeck v. Crescent Mutual, 19 La. Ann. 297 (1867). I I 8 THE LAWS OF mSUEAKTCE. " usurped power " (s), but a mere excessive exercise of jurisdiction. 2. If they act legally, the question of usurped power cannot arise, and even if by their act they render the corporation or authorities liable in damages, this will be no defence to the insurers to a claim on the policy. 3. Where the loss is due to fire, it does not seem to matter whether it be the result of accident or design — the act of a magistrate or an incendiary (t). Damage by There is no public statute on the subject of the removal when j . ,. pi .ij. r • • i i.i -i.- within the destruction 01 huildmgs by municipal authorities ap- pohoy. plicable to other places than the metropolis, and refer- ence must therefore be made to local Improvement Acts in such cases. It seems that bare apprehension that a fire (ti) will spread to his house, will not justify (v) the assured in moving his goods and claiming the damage caused by so doing from the insurer. But if the danger is imme- diate, he would be justified (w), and any damage occur- ring in the process would fall on the insurers ; and in this case Kelly, C. B., said, " Any loss resulting from an apparently necessary and hona-Jide effort to put out a fire, whether it be by spoiling the goods by water or throwing the articles of furniture out of the window, or even the destroying of a neighbouring house by an explosion for the purposes of checking the progress of the flames — in a word, every loss that clearly and proximately results, whether directly or indirectly, from the fire, is within the policy." (s) Defined in Drinhwater v. London Assurance, 2 Wilson, 363, Batlrarst, J. (1767). (t) 1836, City Fire Insurance Co. v. Corlies, 21 Wend. (N. Y.) 367. (u) 28, 29 Vict. 90, s. 12. (v) BoUzmann v. Franklin Fire, 4 Cranch. C. Ct. U. S. 295. Hillier V. Alleghany County, 3 Pennsylvania, 470. (w) Stanley v. Western, L. E. 3 Ex. 74, 37 L. J. Ex. 73, 17 L. T. N. S. 513, 16 W. K. 369, Kelly, G. B, THE RISK. I 1 9 Insurers being only answerable for direct and imme- Fire, what diate, not for consequential and remote, losses from '''* '° "' ' the perils insured against, when that is fire, the instrument of destruction must be fire, and therefore in an American case (x), where the goods insured and the house which contained them were not touched by the fire, but the goods were damaged in the removal Eemovai of of them under a reasonable apprehension that they lot covered, would be reached by the flames which had caught one of the houses of the same block, it was held that the injury sustained by the assured in the removal of his goods was not a loss which was covered by his policy against the peril of fire. The assured insured not against apprehensions of fire, and the injury sustained originated not from necessity to save him from impending fire, but from a prudent anticipation of damage from it (y). When his house takes fire, he must use reasonable Assured must efforts to save his goods (z). He is not entitled to property, look on and let them burn because he is insured. His loss would in such a case be to a great extent the direct consequence of his own act. Sometimes a fire policy contains a provision that the insured shall use all diligence to preserve the property in case of fire ; but irrespective of its presence or absence, it seems to be certain that the assured is entitled to be reimbursed lateably, if not wholly, for the cost of an effort to save the property (a) from the risk insured against, and the act of removal in such a case is not an alteration of the risk, but an attempt to avoid it (&). (x) Sillier v. AUeghany, 3 Pennsylvania, 470. (y) M'Oihhon v. Queen, 10 Lr. Can. Jur. 227. (z) Levy v. Baillie, 7 Bing. 349, seems the only English case on loss by removal, but there fraud was alleged. (a) Thompson v. Montreal, 6 U. C. (Q. B.) 319. Talamon v. Home and Citizens, 16 La. Ann. 426, and per Kelly, C. B., in Stanley v. Western, L. R. 3 Ex. 74, supra. {b) White V. Republic Co., 57 Maine, 91. Case v. Hartford, 13 Illinois, 676. 120 THE LAWS OF INSUEANCE. Kemoval. Diimage. Oriterion of insurer's liability, Bule in America, If the danger is such that a prudent uninsured man would not let his goods remain in the building threatened, and if the assured uses the same care as would be exercised by a prudent uninsured man in the removal of the goods, he will be entitled to recover from the insured all damage done in removing them (c). Damage to Injuries to goods by wet or in any manner from from premises the exposure during the confusion, &c. of a fire, and dunng a fire, (j^j-ing removal, before they can be got to a place of safety, and goods lost or stolen during the confusion of a fire, are within the policy (o[). Theft. In Canada the loss of goods by theft during a fire is held within the risk, and the grounds for holding the insurers liable are well stated as follows : If insurers are to be considered clear the instant the effects insured are beyond the reach of the flames, whether afterwards imavoidably lost to the assured or not, then the latter might be disposed to say, " Whilst my effects remain in my house they are at the risk of the insurers, whereas if I put them into the street they will be at my risk : I therefore will prevent their removal until at anyrate I can have due precautions taken for their preservation out of doors," Moreover, when a house is found to be on fire, strangers are let in to assist in extinguishing the flames and in saving the goods. It is for the interest of the insurers that this should be done, and losses resulting from a pro- ceeding adopted mainly for their benefit ought not to fall on the assured (e). Theft during Their liability for goods stolen during a fire does ^^^' not seem to have been questioned by insurers in this (c) HoUzman v. Franklin Fire, 4 Cranoh (C. Ct. U. S.) 295. (d) 1850, Thompson V. Montreal, 6U, C. (Q. B.) 319, Robinson, 0, J, (e) M'Cfibbon v. Queen, 10 Lr. Can, Jur, 227. Harris v, London and Lancashire, 10 Lr. Can. Jur, 269, THE RISK. I 2 I country. In Levy v. Baillie (/), where a claim of jC I ooo for goods stolen was made, it was resisted only on the ground of fraud. The rule of marine insur- ance seems to be followed. Marine policies expressly except against the risk of Marine rule in loss by thieves ; but when a ship is run ashore owing ''^^^ °* *''®*'" to a fire, and goods landed therefrom are subsequently plundered or destroyed by landsmen, and never come again to the hands of the owners, it is a loss by the perils of the sea {g). In the same way it would seem that losses of this character consequent on a fire follow from the happening of the peril insured against. Insurers can, of course, and sometimes do, exclude all liability for loss by theft during a fire (/;■). The sue and labour clause (i) in marine policies is Sue and labour occasionally introduced into fire policies (k). It has ° ^"^^" nothing to do with salvage in the ordinary sense of the word, since salvors have a lien on things saved and no other claim whatever {I), and the sue and labour clause would justify claim for money paid and work and labour done to save the insured goods, even if nothing were saved. The aim of the clause is tOcustofan induce the assured to do all he can to save the insured effort to save, ... ^ ■ r <"i -whom it property by promising to recoup him lor expense faiia. , reasonably incurred for the preservation of the thing insured from loss in consequence of the efforts of the insured and his agents (m). (/)7 Bing. 349. M'Qibhon v. Queen Insurance, 10 Lr. Can. Jur. 227, and cases already cited. {g) Bondrett v. Hentigg, Holt, N. P. 149, Gibbs, C. J., Pothier. To. S, p. 265. (A) WeVb V. Protection Co., 14 Missouri, 3. (i) Kidston v. Empire Insurance Co., L. R. I C. P. 535, 35 L. J. 0. P. 250, IS L. T. N. S. 12. (h) Thompson v. Montreal, 6 U. 0. Q. B. 319. (?) Aitchison v. Lohre, 4 A. C. at 764, Blackburn. Reported also 49 L. J. Q. B. 123, 41 L. T. N. S. 323, 28 W. R. I. See Forwood v. North Wales Mutual, 5 Q. B. D. 57, in case of partial loss, 49 L. J. 0. P. 593, 42 L. T. N. S. 837. (m) Aitchison v. Lohre, 4 Ap. Oa. 765, ut supra. Thompson v. Montreal, 6 U. C. Q. B. 319. 122 THE LAWS OF INSURANCE. The condition in Thompson v. Montreal Company (n) was that in case of removal to escape conflagration the insurer would contribute rateably with the assured and other insurers to the loss and expenses "attending the act of salvage." Of this clause, Eobinson, C.-J., there said, " That clause was surely not intended to deprive the assured of any portion of his claim under the general terms of his policy, but is a condition wholly for his advantage, and intended to afford him a remedy for something in addition to the compensation for his goods destroyed, injured, or lost in con- sequence of the fire. The object of it is no doubt to encourage the assured to make every exertion to save his goods by holding him out the advantage of being proportionably reimbursed for the expenses which he Cost of an may incur. Thus if he is insured for jQzooo in who'beam^^ ~ one officc, and for £1000 in another on goods worth ;£^Sooo, and to avoid damage of an imminent fire he removes all his goods, as it turns out, in safety, the two insurers would between them contribute three-fifths of the cost of removal (0). The law laid down in this case as to a fire insur- ance seems quite in accordance with the view of Lord Blackburn in Aitcheson v. Lohre (p) as to the effect of the sue and labour clause. Hence it could never be contended by an insurer that if nothing was saved by such removal he would not be liable for the cost of an effort to save it in addition to the amount of the policy, when a clause such as that above mentioned was inserted in the policy as an inducement to salvage. When removal But these rules do not of course apply to removal no risk, . .... ,. when the assurer is changing his home or his place of business. Consent of In such cases the consent of the insurer is always remorli" necessary, since the risk is presumably altered, and necessary. ^^____^^^__^ («) 6 U. 0. (Q. B.) 319. (0) Thompson v. Montreal, 6 U. C. (Q. B.) 319 (1850)1 {p) 4 Ap. Ca. 764, and see p. 121. THE RISK. • 123 must be testified in the manner stipulated for, in the policy or prescribed by the charter or other instrument or by the statute constituting the insurance corporation. It need not be in writing, unless so stipulated or pre- scribed. The usual condition is that the insurer's assent shall be evidenced only by written endorsement on the policy. They are not under any obligation to assent, and if a fire happens before their assent is endorsed, there is no means of making them pay for it (q). Even where consent has been obtained, the risk is Goods not not transferred till the goods are removed, and they tmnsitu. are not covered in the process of removal, being then neither in the old nor in the new place (?■) ; for the assent does not turn the policy pro tempore into a voyage policy, and the risk of removal is on the assured or his carrier according to the terms of the contract of carriage. Only one risk is contemplated, except by special No protection stipulation. So assent to transfer will not amount to removal.™^ a contract to cover goods in both places until goods to the full amount insured have been removed (s). On this it may be observed — 1 . That if the removal is not completed and the M'ciure v. risk is of the same character in both places, the^"^^"^^^™ insurers, by their assent to the transfer, relieve them- selves from liability as to either the part transferred or that which is untransferred, though it would seem that the very object of their assent was to continue their liability in such an event. 2. That though to hold otherwise would be to make the insurers liable to a risk in two places, the risk (2) Noad V. Provincial, &c. Co., 18 U. C. Q. B. 584. (?•) Kunzze v. American Exchange Fire, 41 N. Y. (2 Hand.) 412. White T. Republic, 57 Maine 91, 2 Am. Eep. 22. (s) M'Clure v. Lancashire, 6 Ir. Jur. N. S. 63. 124 THE LAWS OF INSURANCE. would be of the same character in each place, and the policy would only be divided into two smaller policies at the same rate on like risks ; and if the liability were held to exist in both places it would work no unfair- ness, since it would cover goods on the arrival at the new place, and until goods to the, value within the policy had there arrived be on goods in the old place to an amount equal to the balance not at risk in the new place, 3. That it was enough in M'Clure's case, for the purposes of the decision, to say that goods to the full value covered by the policy had been transferred. Sometimes policies are issued covering property not only in warehouses, but in transit through the streets, within limits defined or undefined (t). American case. A policy on the goods in a dwelling-house, and ^parei.° Covering wearing apparel, has been held in Iowa to protect the assured against loss by its destruction or injury whilst it is being worn (u). This, however, would seem to be wrong, because the risk accepted under a fire policy is essentially local, and depends upon the structure and conditions of the building in which the goods insured are contained (v). Horses, &o. It has also been held in America that description of horses, or stock or vehicles (w), as kept in a certain place, does not preclude from recovery if they are in- jured elsewhere, by a risk insured against. Chattels out. It has been held in Ireland that when locomotive where insured chattels, such as agricultural implements, carts, &c., not covered. (i) Faircliild v. Liverpool and London, 51 N. Y. 65. Merrick v. Oermania, 54 Pennsylvania St., 277. («) Zangueville v. Western Insurance Co., 51 Iowa, 553 (1879), 33 Am. Rep. 146. {v) Pearson v. Commercial Union, 1 Ap. Ca. 505, 45 L. J. C. P. 761, 36 L. T. N. S. 445, 24 W. R. 951. {w) M'Clure v. Gerard Fire and Marine, 43 Iowa, 349, 22 Am. Rep. 249, and cases there cited. THE RISK. I 2 S are insured in a certain place the owner cannot recover for them, if they are burnt outside the limits of the place named (x). They are insured only whilst in the specified place, and while out in the fields or else- where are at owner's risk. But on return to the specified place the risk reattaches. But an insurance on such, generally without mention Place not £> 1 11 ,1 1 1, mentioned, 01 place, would cover them wherever burnt, goods pro- tected any- where. The American courts seem to a certain extent at Removal of variance with each other on the subject of removal. Fns°uredf The rule generally adopted is this, " Temporary removal of property occasional or habitual, in pursuance of a use which is a certain necessary consequence arising from the character of the property without any change in the ordinary place of keeping, will be no defence to an action on the policy " {y). In view of this, the words " contained in " have been interpreted with reference to the nature of the property to which they are applied ; and it has been held that a carriage insured, as contained in a certain stable, but burnt while away for repairs, was at in- surer's risk {z). The liability of the insurer is limited to the amount To what r -L-ij.!, ■ • -ji^ij-i, iTi- extent the risk for whicn the premium is paid, but the obligation js taken. incurred is not to pay the whole sum but only the damage done by the peril insured against, not exceeding the sum insured. The insurer, if property is under- insured, cannot, independently of special agreement, insist on paying only a sum bearing the same ratio to the damage as the amount insured bears to the full (x) Oorman v. Eand-in-Hand, Ir. Eep. 1 1 0. L. 224. (y) Lyons v. Providence Washington Co., 43 Am. Rep. 34 note. (z) See London and Lancashire Co. v. Graves, 43 Am. Rep. p 34, note, and other cases there cited. See also Pea/rson v. Commercial Union, ubi supra. 126 THE LAWS OF INSURANCE. value of the property insured (a). This would be penalising a man for under-insurance. (Vhat risk The insurer may take a risk of death by any cause fofuntarysdf- Other than by sentence of law, self-destruction in a iestruotion. ^^^^ mind, or the consequences of some criminal violation of law. If death ensue from any of these causes, the insurer is not liable, since it is contrary to the policy of the law, in such case, to allow the insurance money to be recovered (5). Thus, it has been held that where death resulted from an operation unlawfully performed to procure abortion the insurers were not liable (c). And where a policy contained a proviso that in case the assured should die by his own hands, or by the hands of justice, or in consequence of a duel, the policy should be void, the assured threw himself into the Thames and was drowned ; and the jury having found that he did so voluntarily, knowing that he should destroy his life, but without being able to judge between right and wrong, it was held that the policy was avoided, as the proviso included all acts of voluntary self-destruction (d). In Borrodaile v. Hunter, Erskine, J., said that to come within the proviso the act of self-destruction should be the voluntary and wilful act of a man having at the time sufficient powers of mind and reason to understand the physical nature and consequences of such act, and having at the time a purpose and inten- (a) Thompson v. Montreal, &c. Co., 6 U. C. Q. B. 319. (i) Amicable v. Bolland, 1 Dow. & CI. I, 4 Bligh N. S. 194, Brougham, C, reversing BoUand v. Disney, 3 Kuss. 351. (c) Horn \. Anglo-Australian, 30 L. J. Oh. 511, 4 L. T. N. S. 143, 9 W. E. 359, 7 Jur. N. S. 673. Jlatch v. Mutual Life, 21 American Rep. 541. Bradley v. Mutual Beneficial Life, 6 American Rep. 115, 45 N. Y. 422. {d) Borrodaile v. Hunter, S M. & G-. 639, 7 Jur. 443, 5 Scott. N. R. 418, 12 L. J. 0. P. 225. Stormont v. Waterloo, &c. Co., i F. & F. 22. THE RISK, 127 tion to cause his own death by that act ; and that the question whether at the time he was capable of understanding and appreciating the moral nature and quaUty of his purpose is not relevant to the inquiry further than as it might help to illustrate the^ extent of his capacity to understand the physical character of the act itself. It seems that death by duelling would also avoid Duelling, the policy (e). Where, however, there is no provision in the policy Suicide while that it should be void if the party whose life is '°°™®- insured should die by his own hands, &c., the policy win not be avoided by his destroying himself while in a state of mental derangement (/). If the life of the insured be taken by the person Life taken by who would otherwise receive the insurance money, '^^^"^ " insurers are discharged, and the money cannot be recovered from them (g). Elaborate precautions are taken in the Friendly insurance by Societies Act, 1875, to prevent child-murder with a so^ietyf view to the profit to be made out of the burial club payments (h). The total amount payable on the death of a child under five from however many insuring societies may not exceed £6, and of a child between five and ten may not exceed ;^io (i). (e) Borrodaile v. Hunter, per Tindal, C. J. f (/) Horn V. Anglo-Australian Insurance Co., 4 L. T. N. S. 142, 30 L. J. N. S. Ch. 51 1, 9 W. R. 359, 7 Jur. N. S. 673. Brestead v. Farmers, 8 N. Y. 299. Bufaur v. Professional Life Assurance Co., 25 Beav. 602, 27 L. J. Ch. 817, 32 L. T. 25, 4 Jur. N. S. 841. Vyse v. Wake- field, 6 M. & W. 442. Moore v. Woolsey, 4 Ell. & B. 243, 24 L. J. Q. B. 40, 24 L. T. 155, 3 W. R. 66, l Jur. N. S. 468. Pritchard v. Merchants' and Tradsmen's Life Insurance Co., 27 L. J. C. P. 169, 3 C. B. N. S. 622, 30 L. T. 318, 6 W. R 340, 4 Jur. N. S. 307. Wainwright v. Bland, 1 Moo. & Rob. 480, i M. & W. 32, 5 L. J. N. S. Ex. 147. (g) Prince of Wales Ins. Co. v. Palmer, 25 Beav. 605. (h) Thus a conviction for not properly tending children and giving them improper and insufficient nourishment would probably debar from recovery of the burial club provision. (») 38. 39 Vict. 60, 28 (I). 128 THE LAWS OF INSURANCE. The insurance money is payable (under penalty) only — ( I .) To the parent or personal representative of the parent. (2). On production of a certificate of death written upon and marked in a particular way by the registrar so as to confine its use to an insurance society (A). The registrar may not grant a certificate to obtain an amount in excess of that above limited, nor without a certificate as to the cause of death from a coroner or registered medical man, and the insuring societies are bound to inquire whether any and what sums of money have been paid on the same death by other societies. Children over 10 are not protected by the Act, and minors over 16 can insure themselves. Meaning of The words " Commit " suicide have been held to suicide." include all acts of voluntary destruction, whatever the state of mind of the assured (I). Both these cases turn on the interpretation of express words, by which the insurer seeks to limit the risk which he will take, and he is the sole judge of what risk he will take (m). If the word suicide be used, but the act causing death be not voluntary, and the assured did not know what he was doing, the act is within the risk (n). If nothing is said in the policy about suicide, the insurer is liable, unless felo de se is proved (0). Proof lies (i) 38. 39 Vict. 60, 28 (2). (I) Clift V. Schwabe, 3 0. B. 437, 2 C. & K. 134, 17 L. J. 0. P. 2, 7 L. T. 342. (m) Borrodaile v. Hunter, 5 M. & 6. 639, 12 L. J. C. P. 225, 7 Jur. 443, 5 Scott, N. R. 418, Maule, J. Cooper v. Massachusetts, 3 Am. Rep. 451, and notes. (») Stormont v. Waterloo Co., i P. & I". 22. (0) Horn V. Anglo-Arisiralian, 30 L. J. Ch. 511, 4 L. T. N. S. 143, 9 W. R. 359, 7 Jur. N. S. 673. Dufaur v. Professional Life Co., 25 Beav. 602, 27 L. J. Ch. 817, 32 L. T. 25, 4 Jur. N. S. 841. THE KISK. 129 on the insurer, and if the death is explicable in two ways, the presumption is against suicide (p). But if it is clear that a man died by his own hands, the American courts, though they follow Tindal, C. J. {q), American in his opinion that dying by own hands and suicide are ^'^^' synonymous terms, hold that the policy will be void unless the deceased was so insane as to be unconscious that the act he was doing would cause his death, or unless he committed it under the influence of some insane and irresistible impulse (r). Some policies are drawn to exclude risk of suicide whatever the state of the man's mind, without considering the question of his responsibility (s). In others provision is made for return of premiums in case of suicide {t). Where a contract of insurance is held void on Volunteer and grounds of public policy, as, for example, in a case bankruptcy of felo de se, neither the assignee under a voluntarv "^^'^ recover . , . . , '' where suicide. assignment, nor the assignee m bankruptcy of the assured, can recover thereon (u). Policies usually provide that in cases of suicide Usual con- during insanity the policy shall not be paid in full but of^suicide''*''^ treated as surrendered, and the surrender value thereof ^'^'^*'"^*"^- paid to the personal representatives or other beneficiaries named therein. By this means substantial justice is done (and all possible motive for suicide as a means of provision for one's family removed), since the insurer avoids having his risk increased by the acceleration of death in such a manner by treating such an event as resignation of the utmost benefit derivable from the policy, and the representatives of the assured and his {p) Mallory v. Travellers Co., 7 Am. Rep. 410, 47 (N. Y.) 552. (q) BorrodaUe v. Hunter, ubi sup. (r) Van Zandt v. Mutual Ben. Life, 14 Am. Rep. 215. Brestead, V. Farmers, 8 N. Y. 299, discussing all English cases to 1853. (*) Bigelow v. Berkshire, 19 Am, Rep. 628 n, 93 U. S. (3 Otto) 284. («) Stormont v. Waterloo Co., I F. & F. 22. (a) Amicable v. Bollamd, 4 Bligh N. S. 194, 2 Dowl. & CI. I. But see Moore v. Woolsey, 4 E. & B. 243, 24 L. J. Q. B. 40, i Jur. N. S. 468, 24 L. T. 15s, 3 W. R. 66, I 130 THE LAWS OF INSURANCE. avoided by suicide of asBiguor. estate are not deprived of the benefit of the policy so far as it was earned by payment of premiums. Clause that Policies usually contain a clause avoiding them " if value not the life assured die by his own hands, the hands of justice, by duelling, or by suicide ; but if any third party have acquired a hoTid-fide interest therein, by assignment or by legal or equitable lien for a valuable consideration, or as security for money, the insurance thereby effected shall nevertheless be valid and of full effect." The expression " any third party " will not be construed to mean a person who, by operation of law, becomes the assignee of the estate of the man whose life is insured as a mere personal or legal representative to collect and administer the estate. He is not a third party in the true sense of the term. He is a person invested with certain powers to distribute the estate according to justice and equity ; even if he be a third party he is not one who has the policy vested in him for a valuable consideration (v). In this case Cockburn, 0. J., said, " I think it may be safely taken for granted that the reason why insurance companies on insuring a life provide that in the event of the violent death of the person assured by his own hands, or by the hands of an executioner, they shall not be obliged to pay, is that they insure upon the calculation of the avarage duration of human life. Were it not for this clause a party might insure for the benefit of those who are to come after him, intending all the time to put an end to his life. {x). On the other hand, if policies were liable to be defeated by such a death under every state of things, one great inducement to persons to insure, namely, the possibility of disposing of their policies, if expedient, would" be taken away. BeasoD for clause, (v) Jackson y. Forster, 29 L. J. Q. B. 8, per Cookbum, C. J., I E. & E. 4631 33 L. T. 290, 7 W. R 202, 578. Moore v. Woolsey, 4 E. & B. 243, 24 L. J. Q. B. 40, I Jur. N. S. 468, 24 L. T. 155, 3 W. E. 66. {x) Suicide in a sane mind would avoid the policy, fforn v. Anglo- Australian, ir > necessary for margin was written " eight nine-pounders with close warranty. quarters, six six-pounders on her upper decks, thirty seamen, besides passengers," these words were held to amount to a warranty that the ship was so pro- vided (d). (o) Newcastle Fire Insurance Co. v. M'Morran, 3 Dow, H. L, 255. (6) Gibson v. Small, 4 H. L. 0. 353. (e) Routledge v. BurreU, i Hy. Bl. 255. Worsley v. Wood, 6 T. R. ^10. (d) Bean v. Slupart, DougL 11. 140 THE LAWS OF INSURANCE. The following words were written in the margin of the policy: — "In Port, 20th July, 1776." The ship was proved to have sailed on the i8th July, and Lord Mansfield held that this was clearly a warranty ; and though the difference of two days might not make any material difference in the risk, yet as the condition had not heen complied with, the insurer was not liahle (e). Facts warranted must be true though immaterial. The truth and not the materiality of the answers is the question to be considered when the answers of the party proposing to effect the insurance form part of the contract. Thus where a party who desired to insure his life received a form of proposal containing the following questions : " Did any of the party's near relatives die of consumption or any other pulmonary complaint ? Has the party's life been accepted or refused at any office ? " and to these questions the answer " No " was untruly returned (/), the policy having expressed that if any false statement was made to the company in or about the obtaining or effecting of the insurance, the policy should be void, the House of Lords decided that the answers of the intending insurers being part of the contract, their truth and not their materiality was in question {g). must be strictly performed, Warranties A Condition precedent forming part of the contract precedent must be strictly performed. By the proposals it stipulated "that persons assured should , . . pro- cure a certificate from the minister, churchwardens, and some respectable householders of the parish not concerned in the loss, importing that they were acquainted with the character and circumstances of the person insured, and knew or believed that he by mis- fortune and without any kind of fraud or evil practice (e) Bean v. Stupart, Doug. 1 2 note. (f) London Assurance v. Mansel, 11 Oh. D. 363, 48 L. J. Oh. 331, 27 W. R. 444. (g) Anderson x, Fitzgerald, 4 H, L. Ca. 484, 17 Jur. 995. WARRANTY. 1 4 1 had sustained by such fire the loss and damage therein mentioned." It was held that the procuring of such a certificate was a condition precedent to the right of the assured to recover, and that it was immaterial that the minister, churchwardens, &c., wrongfully refused to sign the certificate (h). Where the questions and answers of a proposal Fact war- form the basis of the contract, their materiality cannot ^^ly^e. ^ be disputed by the assured (i), and where a thing is warranted to be of a particular nature or description, it must be exactly such as it is represented to be, other- wise the policy is void and there is no contract Therefore where a policy of fire insurance on a mill contained the following warranty : " Warranted that the above mill is confonnable to the first class of cotton and woollen rates delivered herewith," the mill proved not to be of the first class, and the House of Lords decided that an action on the policy could not be supported. In giving judgment Lord Eldon said, " It is a first principle of the law of insurance on all occasions that where a representation is material it must be complied with, if immaterial that immateriality may be inquired into and shown; but if there is a warranty, it is part of the contract that the matter is such as it is represented to be. Therefore the mater- iality or immateriality signifies nothing. The only question is as to the mere fact. What is the buHdiug de/ado that I have insured (^) ? But where a policy on cotton-mills contained a warranty that they should be worked by day only, and a steam engine and horizontal shafts were worked by night, it was held to be no breach of the warranty (I). And a warranty that a mil] is " worked by day only " is not broken by (7i) Worsley v. Wood, 6 T. R. 710. (t) Anderson v. Fitzgerald, 4 H. L. Ca. 484, 17 Jur. 995. (*) Newcastle Fire Insurance Co. v. M'Morran, 3 Dow (H. L.) 255. \l) Whitehead v. Price, 2 C. H & R. 447. Mayall v. Mitford, 6 Ad. & E. 670. 42 THE LAWS OF INSUKANCE. xpressiun of itention or pinion. isured need ot state in etail facts )vered by arranty. some portion of the machinery being in motion by night (m). Answers may be mere statements of opinion, and not intended as warranty or representation (n). A steamer was insured and was described by the assured as " now lying in the T dock and intended to navigate the St. Lawrence as a freight boat, and to be laid up for the winter in a place approved by this company." The vessel was destroyed eleven months afterwards by fire, and had remained in dock the whole time, and it was held (reversing the judgment of the Queen's Bench of Lower Canada) that the words were not a warranty, but merely expressed an intention that the vessel should navigate as mentioned (o). The insured is not bound to state in detail facts covered by a warranty except in answer to inquiries made by the insurer, e.g., where a life was insured with warranty that the life was a good one and the person whose life was insured suffered from an old wound, which circumstance was not mentioned to the insurers, the life having died from an illness which had no connection with the wound, the non-disclosure did not disentitle the assured from recovering, because the question to be decided was — has the warranty been proved true ; in other words, was the life a good one ? not, was the life subject to any particular infirmity ? Lord Mansfield said, '' Where an insurance is upon a representation, every material circumstance should be mentioned, such as age, way of life, &c., but where there is a warranty nothing need be told, but it must in general be proved, if litigated, that the life (m) MayaU v. Mitford, 6 Ad. & E. 670, i N. & P. 732. Whitehead V. Price, 2 Cr. M. & E. 447, i Gale (Ex.) 151. (w) Benham v. United Guarantee Co., 21 L. J. Ex. 317, 16 Jur. 691, 7 Ex. 744. Anderson v. Pacific Co., L. R. 7 C. P. 6$, 26 L. T. N. S. 130, 20 W. R. 280. (0) Qramt v. Etma Insurance Co., 15 Moore P. C, 6 L. T. N. S. 735, 516, 8 Jur. N. S. 70s, 10 W. R. 772. WARRANTY. 1 43 was in fact a good one," and so it may be though he have a particular infirmity {p). "The insurers may stipulate for any warranty they please, and if the assured undertakes that warranty, although it may be something not within his or her knowledge, he or she must abide the consequences. But when the insurers intend that there is a warranty of that sort, they must make it very plain that such is their intention {q). They must use nneq^uivocal language, such as persons of ordinary intelligence may without any difficulty understand " (r). A warranty that facts stated are true, "so far as "So far aa known to the applicant," will be construed less strictly than one without these qualifying words. Proof that the applicant knew facts not stated would be on the defendants (s). Where there is a warranty that the person whose Warranty of life is insured is in health, or in good health, it is ^°e°ans^'''^*^ sufficient if he is in a reasonably good state of health, reasonably good nealtn. and even if he laboured under a particular infirmity, if it can be proved by medical men that it did not at all in their judgment contribute to his death, the warranty of health has been fully complied with, and the insurer is liable. Therefore where a policy con- tained a warranty that B was in good health when Warranty of the policy was underwritten, and it appeared in ^°° ^* " evidence that though he was troubled with spasms and cramps from violent fits of the gout, he was in as good a state of health when that policy was under- written as he had enjoyed for a long time, Lord {p) Ross V. Sradshaw, i Wm. Bl. 312, 2 Park Ins. 934, 8th edition. Willis V. Poole, 2 Park, 8 Ed. 935. (2) Gibson v. Small, 4 H. L. C. 353. (r) Life Assurance of Scotland v. Foster, 11 C. S. C. (3rd series) 351, 364, Lord Deas, 371, Lord Ardmillan. Ducliett v. Williams, 2 Or. & M. 348, distinguished. Hare v. Barstow, 8 Jur. 928. (s) Wilkins v. Oermania, 57 Iowa 529. Garcelom. Eampden Insur- ance Co., 50 Maine 580. 144 THE LAWS OF mSUEANCE. Assured not subject to gout or fits. Mansfield said, " Such a warranty could never mean that a man has not in him the seeds of some dis- order. We are all born with the seeds of mortality in us " (t). So where a policy contains a warranty that the assured " has not been afflicted with nor is subject to gout, fits, &c.," such warranty is not broken by the fact of the assured having had an epileptic fit in consequence of an accident. Lord Abinger said, " The interpreta- tion I put on a clause of this kind is not that the party never accidentally had a fit, but that he was not at the time of the assurance being made a person habitually or constitutionally afflicted with fits, a person liable to fits from some peculiarity of temperament either natural or contracted from some cause or other during life " (m). A warranty that a mill is " worked by day only '' is not broken by some portion of the machinery being in motion at night {v). Material A proviso in a policy that if the declaration under untriM™utnottte hand of the person assured delivered at the to knowledge insurance office as the basis of the insurance is not in 01 assured. every respect true, and that if there has been any misrepresentation, &c., then the insurance shall be void, " will avoid the policy, if a statement of a material fact contained in the declaration is untrue, though not to the knowledge of the assured " (x). Mill worker. Evidence of warranty. The warranty or condition must be contained in the policy or in some paper referred to by the policy, and (t) WiUis V. Poole, 2 Park (8 ed.) 935. Eoss v. Bradshaw, I Wm. Bl. 312, 2 Park Ins. 934 (Sth ed.) (a) Chattoch v. Shcme, i Mo. & Rob. 498. (*) MayaM v. Mitford, 6 Ad. & E. 670, i Nev. & Per. 732. (x) M'Donald v. Law Union Fi/re and Life Assurance, L. E. 9 Q. B. 328, 43 L. J. Q. B. 131, 30 L. T. N. S. S4S, 22 "W. R. 530. Ufe As- surance ofScotlmidy. Foster, 11 C. S. 0. (3rd series) 351. Hutchison V. National, 7 0. S. C. (2nd series) 467. M'Lavis v. T7. K. Temperance, 23 0. S. C. (2nd series) 559. waReanty. J 4 5 if a policy under seal refer to conditions contained in a printed paper without seal or signature, those conditions become part of the contract between the parties, and must be complied with before the assured can recover {y). But though a written paper be wrapt up in the policy when it is brought to the insurers to subscribe and shown to them at that time, or even though it be watered to the policy at the time of subscribing, still it is not in either case a warranty or to be con- sidered as part of the policy itself, but only as a representation (z). If the insurers dispute the title to recover on the particulars policy on the ground that in the proposals the assured '^®^"'^^'*" stated he had not had certain diseases, whereas he in fact at the time had one of them, they wiU be obliged to give particulars of the symptoms of the disease alleged (a). If one company takes over another's business, and WHere a issues a new policy of its own for one surrendered, the ovCT^uMness^' warranties therein relate back to the date of the °* another company and original and not of the substituted policy (&). The issues new liability is shifted or reinsured, not lessened or altered, warranties, &e. relate to date of original policy. (y) RoutUdge v. Burrell, i H. Bl. 255. Worsley v. Wood, 6 T. R. 710. Oldham v. Bevricke, 2 H. B. 577, note, (z) Bean v. Stupart, 1 Dougl. 12, note. (as) Marshall v. Emperor Life, L. R I Q. B. 35, 35 L. J. Q. B. 8g, 13 L. T. N. S. 281, 12 Jur. N. S. 293. Oirdleslone v. NoHh British and Mercantile, 11 Eq. 197, 40 L. J. Ch. 230, 23 L. T. N. S. 392,";followed in America. Dwight v. Germania, 22 Hun. N. Y. 167. (6) Oaken v. Continental Life, 69 N. Y. 300. E < 146 ) CHAPTEE VII. MISEEPEESENTATION AND CONCEALMENT. Vberrima The utmost degree of good faith is required from ^contraota'^of ^'^ assured in effecting a policy of assurance. He insurance. must not only State all matters within his knowledge which he believes to be material to the question of the insurance, but all which in point of fact are so. If he conceals anything that he knows to be material, it is a fraud ; but besides that, if he conceals anything that may influence the rate of premium which the insurers may require, although he does not know that it would have that effect, such concealment entirely vitiates the policy (a). Materiality It is a question for the jury whether any particular |a^.^™ °^ fact is or is not material (b). All material facts to be , . disclosed. Policies of insurance are made upon an implied contract between the parties that everything material known to the assured should be disclosed. That is the basis on which the contract proceeds, and it is material to see that it is not obtained by means of untrue representation or concealment in any respect (c) that (a) Per Eolfe, B. Dalglish v. Jarvie, 2 M'N. & G. 231, 243. See also London Assurance v. Mansell, L. R. 11 Ch. D. 368, 48 L. J. Ch. 331, 27 W. K. 444. Mayndrd v.Mode, i Car. & P. 366, 5 Dowl. & R. 266. M' Donald v. Law llnion, &c., L. R. 9 Q. B. 328, 43 L. J. N. S. Q. B. 131, 30 L. T. N. S. S4S, 22 W. R. 530. Duchettv. WOliams, 3 L. J. N. S. Exoh. 141, 2 Or. & M. 348. Mocns v. Seyworth, 10 M. & W. 147, per Parke B. 157. Wainwright y. Bland, 5 L. J. N. S. Exoh. 147, i M. & W. 32, I Mo. & R. 481. Fowhes v. London and Manchester, 8 L. T. N. S. 309, 32 L. J. Q. B. 153, 3 B. & S. 917, 11 W. R. 622. (6) Lindenau v. Deshorough, 8 B. & C. 586. Morrison v, Muspratt, 4 Bing. 60. (c) Moens v. Heywortk, 10 M. & W, 157. MISREPRESENTATION AND CONCEALMENT. I47 means iu any material respect {d), any respect which a reasonable man would think material {e). Mr. Justice Bayley said, " It does not matter whether the insurance is on ships, houses, or lives, the insurer should be informed of every material circumstance within the knowledge of the assured ; and the proper question is whether any particular circumstance was in fact material, and not whether the party believed it to be so " (/). Mr. Justice Littledale said, " It is the duty of the assured in all cases to disclose all material facts within their knowledge. The non-answering of a specific question would amount to concealment if the man knew the fact and was able to answer it " {g). When a man effects an insurance upon a life generally insurance without any representation of the state of the life repre°eDtetioii insured, the insurer takes all the risk, unless there was ^'^ ^^'"'^«. 369, per Jessel, M. R. (A) per Lord Mansfield. Boss v. Bradshaw, I W. Bl, 312, 2 Park Ins. 934 (8th ed.) (j) Pawson V. Watson, 2 Cowp. 787. 148 The laws of iNSORANCfi. What is concealment. Condition. Misdescrip- tion. If a man purposely avoids answering a question, and thereby does not state a fact which it is his duty to communicate, that is concealment. Concealment, properly so called, means non-disclosure of a fact which it is a man's duty to disclose (k). The condition in a fire policy as to misdescription of the premises applies only to the condition of the premises when the policy begins to run. If the de- scription is not correct, the policy does not begin to run at all, or only as to parts unaffected by the breach of condition. If it is fully performed, nothing which happens afterwards, nor even a change of busi- ness, could affect the policy as to that condition (I). If there is fraud in a representation, it avoids the policy as a fraud, but not as a part of the agree- ment (m). Effect of If representations are made part of the policy and luisrepresenta- ^ -n , • -, ^ -e J_^ i tion wiiere_ are untruc, the policy will be avoided, even 11 the loss part of policy. -^^^ ^^^ arisen from the fact concealed or misrepre- sented {n). The policy would equally be void if the insurer mis- represented or concealed a material fact; as, for example, if he insured a ship on her voyage which he privately knew to be arrived and an action would lie against him to recover the premium. " The governing principle," said Lord Mansfield, " is applicable to all contracts and dealings. Good faith forbids either party, by conceal- ing what he privately knows, to draw the other into a bargain from his ignorance of that fact and his believing the contrary " (0). Misrepresenta- tion by insurer. (k) London Assurance v. Mangel, ii Ch. D. 370, per Jessel, M. R., 48 L. J. Ch. 331, 27 W. R. 444. (l) Pirn V. Seid, 6 M. & G. i (24), 12 L. J. C. P. 299. Shaw v. Mobberds, i N. & P. 279, 6 Ad. & E. 75, 6 L. J. N. S. K. B. 106. (m) Per Lord Mansfield. Pawson v. Watson, 2 Cowp. 787. (») Mayna/rd v. Rhode, i Car. & P. 360, 5 Dowl. & Ry. 266. (0) Carter v. Boehm, 3 Burr. 1910. MISREPRESENTATION AND CONCEALMENT. 1 49 Any person acting by the direction of the insured, ^sent of ji... ,!• .,,. . assured must ana wno is instrumental m procuring the insurance, is disclose fully. bound to disclose all he knows to the insurers before the policy is effected, and where any misrepresentation arises from his fraud or negligence the policy is void (p). If before a policy of life insurance is effected the statements by life insured is applied to by the office for and gives '"^ '''™'"^'^' information, he is regarded as the agent of the assured, who is bound by his statements even though the assured is a stranger to and unacquainted with him ; and if such statements are false, the assured will not be able to recover from the insurance office. And this is so although the assured should leave it to the agent of the insurance office to obtain the informa- tion (q). An insurance was effected by a creditor on the life Answers given of his debtor who gave untrue answers to the questions, insured must " Who is your medical attendant ? Have you ever ^® *''"®' had a serious illness ? " The creditor was ignorant of the misrepresentation, and the debtor did not die of the disease he was then afflicted with ; but it was held that the misrepresentation avoided the policy, for being part of the policy, the bargain was only conditional, and it was equally a condition, let it be made by whom- soever it may (r). If the misdescription is in fact due to the act of an Misrepreaenta- agent of the company, even if material, it will not agent of°"^ affect the policy (s). company. (p) Fitzherlert v. Mather, i T. R. 12. Ee Universal non-Tariff Fire Co.— Forbes' claim, L. R. 19 Eq. 485, 44 L. J. Ch. 761, 23 W. R. 464. (2) Everett v. Deaborough, 5 Bing. 503. (r) Mwyna/rd v. Rhode, i Car. & P. 360, J Dowl. & R. 266. (s) Ee Universal non-Tariff Fire Co., Expte. Forbes' claim, supra. Somers v. Athenceum, g, , and cases there cited. (m) Buchanan v. Exchange Fire Co., 6i N. Y. 25. Meara v. Hum- boldt, 37 Am. Rep. 647, 92 Penn St. 15. l62 THE LAWS OF mSURANCE. in the body of the policy, " That this policy shall be subject to the several conditions and regulations herein and hereon expressed so far as the same are or shall be applicable." Thus a policy framed for buildings was issued to cover a ship. The seventh condition stipulated that if more than twenty pounds of gunpowder should be on " the premises " at the time of a loss, such loss should not be made good. And the Privy Council held that the word " premises " must be taken to mean the ship for the purposes of the said policy, and that the word having a clear legal meaning, viz., "the subject or thing previously expressed," no evidence of usage as to carriage of gunpowder in ships as freight was admissible to show the condition inapplicable to a steamer (n). And if a policy, though improper in form, be accepted by the assured, he must be taken to have read it, and it is just that he should be bound by the proper legal construction thereof. Increase of risk. Change of business. When a business classed in the memorandum on a policy as extra hazardous is carried on after insurance, it will avoid the policy and the verdict of a jury that it does not increase the risk, will be set aside (o). It would be otherwise if the fact that the company con- sidered the business extra hazardous was merely in the instructions to agents (p). A change in the nature of the business carried on in insured's premises, whereby the risk is increased and without proper notice, avoids the policy (q). The materiality is for the jury. But it seems that notice [n) Beacon Life (A) Similar conditions are found in some English policies, but have not been litigated. CONDITIONS IN POLICIEg; 1 67 The condition can be, of course, broken only by the failure to disclose insurance in companies other than that by which the policy containing it is granted (i), and by policies actually on a portion of the same risks (k). A mere possibility that some portion of the risk PoUcy acci- covered by both policies might accidentally coincide fj^*"*?"^ °''^''" would not, it seems, constitute such a double insurance as is meant by this condition (I). The existence of a marine policy on goods which are landed and ware- housed for a special purpose will not vitiate a fire policy made on them by breach of this condition, as the underwriters would not be liable while the goods were so warehoused (m). An insurance effected subsequently to the policy Condition aa sued upon in another company in substitution for a *° subsequent lapsed, policy to the like amount in a third company, does not avoid the policy sued upon under a condition as to giving notice of a subsequent insurance, if the grantors thereof have had notice of the lapsed policy if existing when their policy was granted, or have recog- nised it if granted after their own (n). Subsequent insurance may be treated as meaning gabaequent= subsequent and further, an addition which seems in further, accordance with common-sense (n.) But if the assured takes out a policy in a bad com- pany, in substitution for one lapsed in a good company, some increase of liability to contribute might arise to other companies. (j) Citizens' Company of Canada v. Parsons, 7 App. Cas. 96, 118. (k) Australian Agricultural Co. v. Saunders, L. R. 10 0. P. 668, 44 L. J. 0. P. 391, 33 L- T. N. S. 447. {1} Per Bramwell, B., in case last cited, L. R. 10 0. P. 674. (m) Ibid. (re) Parsons v. Standard Insurance Co., 4U. 0. (App.) 326. Pacavd V. Monarch Insurance Go. , 1 Lr. Can. Jur. 284. 68 'rHE LAWS OF INSURANCE. mdition It has been held in Canada that where two insur- s^irance?''"* ances Were made on the same property with one person, agent of two companies, the companies would not be estopped from setting up the condition vitiating their policies in the case of other insurance on the ground that the knowledge of the agent could not here be deemed knowledge of the principal (o). surance. ther An omission to give the names of other offices in which the applicant is insured will avoid any policy granted on the application where there is a condition to that effect {p ). Where it is stipulated that such other insurances must be allowed by endorsement, no action will lie on the policy containing such term till the endorsement has been made, whatever be the equitable remedy, since the endorsement is the agreed evidence of the insurer's assent to the other insurances {q). fotioe of other Verbal notice to the insurer's agent will not bind the insurer, and the assured is not entitled to insist upon a reform of the policy by an endorsement of the insurance of which he has given merely verbal notice, as this would be compelling their assent which was ex hypothesi in their discretion (r). But a consent signed by the secretary has been held to bind the company (s). (Taiver. If the Company has been informed by the agent of (o) Shannon v, Gore District Mutual, 2 U. C. (App. ) 396. (p) Citizens' Insurance Co. v. Parsons, 7 App. Ca. 118. Parsons v. Standard Co., 4 XJ. 0. (App.) 326. (2) Noad V. Provincial Insurance Co., i& U. C. (Q. B.) 584. C/iap- man v. Lancashire Co., 13 Lr. Can. Jur. 36, 2 Stevens, Quebec Digest, p. 407 (P. C.) ()•) Biilington v. Provincial Insurance Co., 2 XJ. C. (App.) 158, 3 Canada 182. (s) Attwell V. Western, 2 Lr. Can. Jur. 181. Soupras v. Mutual Insur- ance Co, , 1 Lr. Can. Jur. 197, a case of notice given after fire. Chalmers V. Mutual Fire Co., 3 Lr. Can. Jur. 2, CONDITIONS IN POLICIES. I 69 the other iusurance, and knowing of it issue a policy, they will be taken to have waived the condition (t). The condition will not be deemed waived if the insurers, on getting notice after the fire, reserve the objection till action brought (m). In a mutual insurance company when a policy is Mortgagee of assigned, with consent of the insurer, to a mortgagee, ™"*'^''i P^^i^y- though he becomes a member, further insurance by the mortgagor, which the mortgagee did not know of and could not stop, will not affect his policy under the condition relating to double insurance (■;;). If further insurance be effected in a foreign company. Foreign it is still such an insurance as to avoid a policy con- """"P^°y' taining a condition against double insurance, being an insurance in fact (x). Insurance made by a mortgagee without the know- Mortgagee. ledge of the mortgagor will not avoid a policy taken out by the latter and containing such a condition, for the further assurance must be by same person or in the same interest (y). Insurance by interim receipt may fall within the interim provision, as, the duration of the interim insurance "^^"^'p'- being limited, the question has been raised whether after expiry of the time limited the assured was entitled to have a policy or not, since if he was it would be a case of other insurance (s). (t) Billington v. Provincial, 2 U. C. (App.) 158, 178, 3 Canada 182. (u) Attwell V. Western Insurance Co., 2 Lr. Can. Jur. 181. {v) Mechanics' Benefit Society v. Gore District Insurance Co., 40 U. C. (Q. B.) 220, 236-8. {x) Ramsay Cloth Co. v. Mutual, . J. C. P. 299, 6 Scott N. R. 982. UnderhiUv. Agawam, Insurance Co., 6s Mass. (6 Gush.) 440. Priest v. Citizens' Mutual Fire, 85 Mass. (3 Allen) 602. Lamhkin v. Ontario Marine and Fire, 12 U. C. (Q. B.) 578. Whyte v. Western Insurance Co., 22 Lr. Can. Jur. 215 P. 0. (k) Wliyte V. Western Co., P. C. 22 Lr. Can. Jur. 215. 186 THE LAWS OF INSURANCE. the company does not consider itself liable amount to a waiver (/). Proof may be Where a detailed account of loss sustained by the besides that in S'^^ ^^ delivered in compliance with a stipulation in deiiv'^^dt *^^ policy, the plaintiff is not precluded from giving company. evidence of the loss of property not specified in the account (m). Time for The time allowed by the condition for payment of fr^o^com™"^ the insurance money by the company runs from the pletion of ^{^q i}^q insured puts in the proofs on which he proofs. . "^ '■ relies (n). "Waiver. Waiver may be inferred from the acts and conduct of the insurer inconsistent with an intention to insist on the strict performance of the condition (o). Where proofs Where an insurance company repudiates an insurance unnecessary. ^^^ have not signed a policy, preliminary proofs are needless (p). Estimate of amount. The assured may have to give in a valuation of what he has lost under the condition as to particulars. Whether so stipulated or not he cannot recover for more than the worth at the time of the fire, and it is usually stipulated that he shall so value. Price. In the case of furniture cost price might assist in arriving at, but would not be the proper estimate. In the case of stock-in-trade, the market price (g), {I) Wliyte V. Western Co. (P. C), 22 Lr. Can. Jnr. 215. Abrahams v. Agricultural Mutual Fire Co., 40 U. (Q. B.) 175, 180. See Lanca- shire Co. V. Chapman, P.O., reported in 7 Revue Legale 47, Lr. Canada. (m) Vance v. Forster, lr. Oirc. Rep. 47. (n) See Rice v. Provincial, 7 U. C. (C. P.) 548. Hatton v. Provincial, 7 tr. C. (C. P.) 555. Cameron v. Monarch, 7 U. C. (C. P.) 212. (0) Rolces V. Amazon Insurance Co., 51 Maryland, 512, and cases there cited. (p) Goodwin v. Lancashire Fire, 1 8 Lr. Can. Jur. 1. (g) Equitable Co. v. Quinn, 11 Lr. Can. Rep. 170. CONDITIONS IN POLICIES. I 8 7 and not the cost price or intrinsic value, would seem to be the proper value. Naturally goods long in stock would not be estimated at cost but at sale price, and it would only seem fair to take the same test for goods recently acquired and in full con- dition and favour with the public. The rule cuts both ways when prices are depressed (r). Error as to the cause of fire (made without fraud) Mistake in in the preliminary proofs may be corrected and the oause^of^re. insurer made liable by proof of the true cause (s). Innocent misstatement is not within the condition (t). If the insurei's admit a policy and agree to try the Acceptance of. cause and manner of the loss, they cannot take any objection on the policy as to the propriety of the notices and proof (u). The damage must not be lumped, but given in Estimate must detail. Even if not so stipulated, the assured would be liable to deliver particulars giving a detailed account of the several items making the sum total of his loss. A fraudulent overcharge will of course avoid the policy. The condition thereanent is no mere threat (■;;). Vouchers, proofs, and explanations are required as Vouchers, much by good faith as by the conditions, and a man who would not show his accounts would have as little chance of recovering under the common law as under an ordinary policy. Where the assured refused to produce invoices demanded by the insurers under a condition as to (r) M'Cuaig v. Quaker City Co., i8 U. C. (Q. B.) 130. (s) Smiley v. Citizens' Fire, 14 West Virginia 33. Meagher v. London and Lancashire Fire, 7 Victoria (Law) 390. (t) Titus V. Glen Falls Co., 81 N. Y. 412, 421. (u) Walker v. Western, 18 XJ. C. (Q. B.) 19. (v) Thomas v. Times and Beacon, 3 Lr. Can, Jur. 162. I 88 THE LAWS OF INSURANCE. voTiclieraj &c., it was held that he must be non-suited {x). Vouchers of course will include books of account if any are kept. And where the assured has insured a certain sum on stock-in-trade and has been trading for some months, the insurers are reasonably justified within this condition in calling for such proof as the assured can furnish, that after deducting the goods saved and the goods sold he still had in stock such further amount of goods as would make his loss amount to the full amount insured {y) or claimed under the policy. Proof of loss. A builder's certificate as to the value of the house reqiSred*^ * ^^ *^® time of fire may reasonably be required under his condition, and must be supplied, if required, before action brought («). Omission to verify if so required by books of account or other proper vouchers is fatal unless the conditions are literally or substantially complied with (a) in those cases where the man has such means of verification. If the books, &c., are burnt, the assured must supply a particular account if any means of so doing still remain (S). A mere afiidavit of value with accounts of goods sold to the assured, and having only charges of goods per invoice without particulars, will not suflice (c). False state- A false statement made by the insured cannot be ment. {x) Cinq Mars v. Equitahle Iiuurance Co., 15 U. C. (Q. B.) 143, 246. (y) Ibid. 246, Robinson, C. J. (z) Pawcett V. Liverpool, London, and Globe, 27 U. C. (Q. B.) 225. (a) Greaves v. Niagara District Mutual Fire Insurance Co., 25 U. C. (Q. B.) I27._ Scottv. MagaraDistrict,2iV. 0. Q.B. 123. Banting v. Niagara District Mutual Fire Insurance Co., 25 TJ. 0. (Q. B ) 431. (6) Oa/rters v. Some, 19 U. 0. (0. P.) 143. (c) Mulvey v. Qore District Mutual Fire Insurance Co., 25 U. C. (Q. B.) 424. CONDITIONS IN POLICIES. I 89 excused by knowledge of the truth possessed by a Agent's know- local agent receiving the application, whether such ^^'^^^ °^ ^^°'^- false statement be made in the application or the proofs of loss. In the latter case, the liability having accrued, the question of waiver would not arise (d). Ascertainment and proof or adjustment of the loss Asoertaiu- may be made a condition precedent to the right to sue Zl^!'' *"'' °^ for the loss, and it is a good defence to an action that Condition , , , . precedent. the loss has not been ascertamed and proved (e). The Arbitration, mode of proof, &c. need not be pleaded, being matter of evidence only. Proof satisfactory to the company means proof which "Satisfao- ought to be or in the opinion of a court of justice is ^°^^'' satisfactory (/). If the assured does not reasonably and actually be- Valuation, lieve in the valuation put on his goods in his proof, he will forfeit all claim under the condition as to fraud (g). And if a jury find a verdict for an amount very much less than the claim, the judgment will either be entered for the insurers (A), on the ground that the assured has been guilty of fraud in his valuation, and Fraud, so avoided the policy within the condition, or a new v^Sion. trial will be ordered (i). It does not seem clear how much less the finding must be less than the valuation for the policy to be avoided on the ground of fraud, and no decision seems to have been given on that {d) Hansen v. American Insurance Co., 57 Iowa 741. (e) Elliot V. SoyaZ Exchange, L. R. 2 Ex. 237, 36 L. J. Ex. 129, 16 L. T. N. S. 399, 15 W. R. 907. See also M'Manus v. Etna Co., 6 Allen (N. Br.) 314. Johnston v. Western, 4 TJ. C. (App.) 281. Lanibkin V. Western, 13 TJ. C. (Q. B.) 237. Waydell v. Provincial, 2i U. 0. (Q. B). 612. London and Lancashire v. Honey, 2 Victoria Law 7. (/) London Guarantee Co. v. Fearnley, $ A. 0. 911, 43 L. T. N. S. 390, 28 W. R. 893. Manly v. Oresham Life, 29 Beav. 439, 31 L. J. Ch. 94, 4 L. T. N. S. 347, 9 W. R. 547, 7 Jur. N. S. 383. (g) Newton v. Qore District Mutual Fire Insurance Co., 33 U. C. (Q. B.) 92. (h) Riaeh v. Niagm-a Co., 21 U. C. (C. P.) 464. (i) Levy v. Baillie, 7 Bing. 369. 190 THE LAWS OF INSURANCE. Over-value. point in England except Levy v. Baillie, where tlie claim was ^1085 and the verdict for ;^Soo (h). In Nova Scotia, in a case where the verdict was for $3000 but many witnesses valued the property at $500 the verdict was set aside Q). But in another, where $600 was claimed and $840 awarded, the verdict was up- held because the effect of the finding of the jury was to negative fraud (m). So also in Ontario, where it was said that it not appearing that an over-valuation was made maid fide, but by error of judgment, the court will not set aside a verdict, the question of fraud being for the jury (n). Over-valuation Over-valuation in an application, if not fraudulent, "en't/^''^"' w^ill ^lot avoid a policy (0). Condition as to fraud in claim, or criminal procurement of fire. The condition as to fraud in the claim runs as follows : — " If the claim be in any respect fraudulent, or if any statement or statutory declaration made in support thereof be false, or if the fire was caused by or through the wilful act, procurement, or connivance of the insured or any claimant, all benefit under this policy is forfeited. This condition imposes no duty as to diligence in saving the goods endangered by a fire, but deals only with arson or procurement thereof. In London the rescue of property is generally undertaken by the salvage corps, and the goods are at insurer's risk from the outbreak of the fire. In America and the colonies efibrts are made by many if not all insurers to make (k) See also Britton v. Royal Insurance Co., 4 F. & I". 905 and. notes, 15 L. T. N. S. 72. (I) M'Leod V. Citizens' Insurance Co., 3 Russell and Oh. (Nova Scotia) 156. (m) Cann v. Imperial Fire Insurance Co., I Russ. and Oh. (Nova Scotia) 240. (n) Jtice V. Provincial Insurance Co., 7 TJ. 0. 0. P. 548. Moore v. Protection Ineuramce Co., 29 Maine 97. (0) Canada Landed Credit Co. v. Canada Agricultwal Insurance Co., 17 Grant (U. 0.) 418. Laidlaw v. Liverpool and London Co., 13 Grant (U. 0.) 377. CONDITIONS IN POLICIES. I 9 I the insured do his best to save Lis goods notwith- standing that he is insured (p). But the condition covers — (i.) Fraud after the right -what the of action has accrued, such as (a) any attempt to cheat °°oiuie°s" the insurer in respect of the amount of claim or other- wise (q). (b) Any statements or allegations which are intentionally false and relevant to the account of loss whether intended or not to cheat the insurer. (ii.) Arson of the insured or any claimant under Condition as . 1 T • 1 J • T. IT- to fraud in the policy, including any person who would m any daim and event be entitled to the value of houses or goods such as a mortgagee or bill of sale holder or other person to whose order the policy moneys were made payable. The crimes in question are all included under the general head of Arson (r). arson. False in the condition means wilfully and intentionally False state- false (s). If the plaintiff prefers a claim which he knows to be false and unjust he can recover nothing. The false statement must have reference to the claim and not to any immaterial or collateral object (f), since the condition is to be construed with reference to its interest and object, viz., the account of the loss and value of the property insured (i(). Fraud in the claim is quite distinct from fraud in As to fraud in the claim. ■ (p)-See oases under removal, pp. 119, 121. (5) Orenier v. Monarch Co., 3 Lr. Can. Jur. 100. Seghetti v. Queen Insurance Co., 10 Lr. Can. Jur. 243. Harris y. Lancashire Co., 10 Lr. Can. Jur. 268. (r) This is dealt with more fully in the chapter on "Risk." (j) Brilton v. Royal Insurance, 4 F. & F. 905, 15 L. T. N. S. 72. Levy V. BaiUie, 7 Bing. 349. Steeves v. Sovereign Fire, 4 Pug. and Burb. (New Bruns.) 394. lieg v. Boynes, i C. & K. 65. Mason v. Agricul- tural Mutual Fire Insurance Co., l8 U. C. (C. P.) 19, and see Chapman V. Pole, 22 L. T. N. S. 306. (t) Oi-owley Y. Agricultural Mutual Fire Insurance Co., 21 U. 0. (C. P.) 567. («) Soss V. Commercial Union Assurance Co., 26 U. C. (Q. B.) 552. 192 THE LAWS OF DfSUBANCE. the proposals and negotiations for the policy {v). While excessive valuation may be material before the taking of a risk {x), and make the policy void ah initio, excess in the claim only operates by destroying the remedy and putting the claimant out of court {y). Exoesaive claim not conclusive of fraud. The mere fact of excess is not conclusive of fraud («). Valuation is to a large degree matter of opinion, but over-valuation may be so great as to be incompatible with good faith, or may be dishonestly made {a). Conse- quently the proper direction for the jury in such a case, it seems, would be to find for the plaintiff, unless on the evidence they thought the claim and declaration were fraudulently untrue. In Levy v. Baillie (6) a new trial was ordered instead of entry of judgment for the defendants, which was asked for. This supports the view that the jury must expressly find fraud, and that it cannot be inferred from the discrepancy between the amount claimed and their verdict (c). But j arors are apt to be exceedingly charitable in their construction of plaintiff's motives whenever the defen- dants are an insurance company (d). Said a learned judge in Canada, "He may be sanguine enough to expect that another jury may be found to deal with his case in as large a spirit of charity as to his estimate of loss and the good faith of his affidavits as the jury which has (v) See Britton v. Royal Insurance Co., 4 F. & F. 905 notes, 15 L. T. N. S. 72. (x) lonides v. Pender, L. R. 9 Q. B. 531, 43 L. J. Q. B. 227, 30 L. T. N. S. 547, 21 W. R. 884. {y) Meagher v. London and Lancashire, 7 Victoria Law 390. (s) Ibid. Levy v. Baillie, 7 Bing. 349. (a) Chapman v. Pole, 22 L. T. N. S. 306. Riach v. Niagara District Mutual Fire Insurance Co., 21 U. 0. (0. P. ) 464. Jersey City Co. v. Nichols, 35 New Jersey, Eq. 291. (6) 7 Bing. 349, see M'MiUan v. Gore District Mutual Fire Inswrance Co., 21 tJ. C. (0. P.) 123, and Oould v. British America Assurance Co., 27 U. C. Q. B. 473, reviewing all cases. (c) See findings in Harris v. London and Lancashire, 10 Lr. Can, Jur. 268, 274. (d) Riach v. Niagara District Mutual Fire Insurance Co., 21 U. 0. (C. P.) 464, 472- CONDITIONS IN POLICIES. 193 recently upheld his honesty of purpose in swearing that his actual loss was twelve times larger than they themselves found it to be " {e). Mere mistakes in the statement, &c., will not forfeit Mere mis- the claim (/). To ask that it should be so would be not invalidate a breach of good faith on the part of the insurers. Mere "l*™- overclaim will not prove nor even raise a presumption of fraud. Error or some degree of exaggeration or over-estimate does not amount to fraud, and in such cases the insured will be entitled to recover according to the real value and amount of loss actually sus- tained {g). If a claimant recklessly values his property, not Eeekless knowing nor taking the trouble to ascertain the ^ ^ *™®" ' accuracy of his valuation, he can hardly complain if his claim be treated as fraudulent (A) within the principle laid down in Bees Eiver Co. v. Smith, L. E. 4, H. L. 79, 39 L. J. (Ohanc.) 85 S, especially as reckless under- statement is more than unlikely. Arson is discouraged as a defence to an action on a Defence of policy, since criminal matters are thereby mixed up in civil proceedings (i), and the crime must, if imputed, be as fally proved as to justify the jury in finding the plaintiff guilty on indictment (Jc). And the court will be very unwilling to grant a new trial where such a defence has been raised (I). (e) M'MiUan v. Gore District Co., 21 U. 0. (C. P.) 123. (f) Jones v. Mechanics' Fire Insurance Co., 13 Am. Kep. 405. See Meagher v. London and Lancashire Fire, 7 Victoria Law 390, 395. Mason v. Harvey, 8 Ex. Rep. 819, 22 L. J. Ex. 336, 21 L. T. 158. (g) Chapman v. Pole, 22 L. T. N. S. 306. (A) See Meagher v. London and Lancashire Fire, 7 Victoria Law 390, 394- (i) Briiton v. Soyal, 4 P. & F. 905, 908, 15 L. T. N. S. 72. Goul- stone V. Foyal, I F. & P. 276. {k) Thwrtell v. Beaumont, l Bing. 339, 8 Moore 0. P. 612, 2 L. J. O. P. 4. The American courts hold less strict proof necessary. (l) Oould V. British America Assurance Co., 27 U. C. (Q. B.) 473. But see M'Millan v. Qore District, 21 U. C. (C. P.) 123. N 194 THE LAWS OF INSUBiNCE. Proof of his loss is, of course, upon the assured. He must .show, if required, that the goods were on the premises at the date of the fire, and were lost, damaged, or stolen (m). Condition that A further condition in fire policies is as follows : — enter premises. " On the happening of any loss or damage by fire to any property in respect of which a claim is or may be made under this policy, the company, without being deemed a wrong-doer, may, by its authorised oflBcer and servants, enter into the buildings or place in which such loss or damage has happened, and for a reasonable time remain in possession thereof, and of any property hereby insured which is contained therein for all reasonable purposes relating thereto or in connection with the insurance hereby effected thereon, and this policy shall be evidence of leave and license for that purpose. Insurers not to remain on premises unreasonable time. Purpose of condition as to entry. This condition is inserted in order to enable the insurers to see for themselves the nature of the damage and the causes thereof, and of testing the accuracy of the proposals and honA fides of the insured. They are thereby given leave and license to enter before any claim is made on getting notice of the fire. They will be liable to an action for damages if they retain possession unreasonably long (n). What the insurers want the license to enter for is to enable them to ascertain — I . The exact description of the building insured, to see if it tallies substantially with the description thereof given at the obtaining of the policy and of the risk. 2. The nature of the trade carried on at the time of the fire, to see whether it is in accordance with the conditions. (m) Harris v. London and Lancashire Fire, lo Lr. Can, Jur. 268. (n) Oldfield v. Price,[2F. & F, 80. CONDITIONS IN POLICIES. 1 95 3. The cause of, and place where, the fire began, with a view to detecting any attempt at arson. 4. The amount of damage done thereby, and that they may be able to protect the salvage. The insured is bound to give all his knowledge on these siTbjects. Fire policies also invariably contain a condition as to Condition as reinstatement, which usually is to the following effect : ^/nt.''*'"'*^' The company may, if it think fit, reinstate or replace property (0) damaged or destroyed instead of paying the amount of the loss or damage, and may join with any other company or insurers in so doing in cases where the property is also insured elsewhere. This condition as regards policies on EngUsh realty or chattels affixed to the freehold is in the main only declaratory of the law as enacted by sec. 83 of 14 Geo. 14 Geo. in. c. III. c. 78. That Act does not apply to Scotland (p) or ?„ Scotland ot Ireland (2), nor to personalty in England (r). As to Ireland, those countries and property of that kind, the con- Condition dition enlarges the powers of the insurers, and the p^era than time for reinstatement is also enlarged (s) by the terms statute. of the condition. Moreover, the condition enables the insurers to reinstate without reason given and where there is no suspicion (t), so that they can reinstate in cases of dispute as to the amount of damage, or where they think reinstatement will be cheapest for them. They are under statutory obligation to reinstate in suspicious cases. (0) Eeinstatement is " Eeplaoement in forma speoifioa," Sutherland V. Sun Fire, 14 C. S. 0. (2nd series) 775. (j>) Bissett V. Eoyal Exchange, i 0. S. 0. (ist series) 174. (g) Being prior to the Union. (r) Exp. Goreley, 4 De G. J. & S. 477, 34 L. J. (Bktcy.) i, 11 L. T. N. S. 319, 10 Jur. N. S. 1085, 13 W. E. 60. (s) Sutherland v. Sun Fire, supra. («) Bissett V. Royal Exchange, i C. S. C. (ist series) 174, 196 THE LAWS OF INSUEANCE. Damage may The right to reinstate under the condition arises e repaire . .^j^g^j^Qj. ^q destruction is total or partial (u). Company must If the Company elect to reinstate they must do so election to and Cannot fall back on payment (v). The converse is reinstate. equally true. The power to combine with other insurers in reinstating is important in cases where there are several interests in the property insured, as in case of mortgages (x). Condition as The last condition in a fire policy is to the follow- to forfeiture . , ,. . , _ , of premiums, ing effect : In all cases where the policy is void or has ceased to be in force under any of the foregoing con- ditions, all moneys paid to the insurers in respect thereof will be forfeited. Being a condition as to forfeiture, it may be waived. And it does not seem to apply to cases where the policy does not attach at all. "Waiver of the It may be asserted broadly that if in any negotia- tions or transactions with the insured after knowledge of the forfeiture, the insurer recognises the continued validity of the policy, or does acts based thereon, or requires the assured by virtue thereof to do some act or incur some trouble or expense, the forfeiture is waived (y). Conditions of The conditions of life iusurance differ widely from life insurance ,1 • ii. • mi. i. j-j.- different from thosB in Other insurance, ihere can be no conditions insurauoe*^*'^ ^^ *° proof of damage in a life policy, the contract apart from questions of bonus being to pay a liqui- dated sum on a given event. Proof of age and death is all that is needed, and often the former is admitted at the outset. («) Sutherland v. Sun Fire, 14 0. S. 0. (2nd series) 775. («) Jbid. 779. Brown v. JRoyal, i E. & E. 853, 28 L. J. Q. B. 275, 33 L. T. 134, 7 W. R. 479, S J^ir- N. S. 1255. (k) Scottish Amicable Association v. Northern Asswcmce Co., 21 Scottish Law Keporter, 189, 11 0. S. C, 4th series, 287. (y) Titus V. Qlen Falls Co., 8i N. Y. 410, 419. See Robertson v. Metropolitan Life Insurance Co.,. 88 N. Y. 541, and Inswamee Co. v. Norton, 6 Otto (96 U. S.) 234,' which goes into English cases. Ward V. Day, 4 BeBtt& Smith, 337. CONDITIONS IN POLICIES. ig^ The other conditions of life insurance may be Kinds of classified as follows :— oouditions. (a.) Limiting the region wherein the insurance operates. (b.) Limiting the occupations in the exercise of which the assured is protected. (c.) Specifying certain modes of death, on the happening of which the sum insured will not be payable, e.ff., suicide, hands of justice, or duel, or act violating the law. (d.) Requiring timely payment of premiums, but providing a means of reviving lapsed policies where the risk has not been materially changed in the interval (e.) Making the undertaking of the risk conditional on the truth of all statements or answers made on the application to insure, whether the insurance be on own or another's life, and whether the statements be made by the assured or his agents. It will be seen that under the last class of conditions Conditions only can the policy be void ah initio, a. b. c. are con- ™ntraot void ditions which amount to exceptions from the risk taken. °^ voidable, d. e. make the policy void or voidable. It seems, however, that in the case as well of a condition making the policy void as of one making it voidable, the non- fulfilment of the condition may be waived by the in- "Waiver of surers, if they do any act amounting to an affirmance of the contract after knowledge of the breach of the condition (z). Leave and license by the insurer to break the con- dition, will also save the rights of the insured (a). If the assured fails to disclose the names of medical Non-diBolosure of medical (s) Armstrong v. Turquand, g Ir. 0. L, R. 32. Wing v. Harvey, 5 De Gr. M. & G. 265, 23 L. J. Ch. 511, 18 Jur. 394, 23 L. T. 120, 2 W. R. 370. Supple V. Oann, 9 Ir. 0. L. R. i. {a) Seis v. Scottish Equitahle, 2 H. & N. 19, 26 L. J. Ex. 279, 29 L. T. 113, S W. R. 592, 3 Jur. N. S. 417. 198 THE LAWS OF INSURANCE. Of disease. Age. Proof of age, As to omissions. Misrepresenta- tions. Geographical limits. men employed by him, and answers as if he had none, and omits to state that he was afflicted with disease, having reasonable grounds for believing that he was so afflicted, his policy will be void. So also if he misstates his age. And if it is not admitted in the policy, parol proof thereof cannot be given until the non-existence of baptismal or birth register has been proved (&). The condition as to misrepresentation or omission to communicate material facts refers only to the time of negotiating for and effecting the policy and not to any subsequent time (c). This is more especially applicable to life policies. If a life policy contain a stipulation that the assured is not to go beyond certain limits, if the insured goes even for an instant outside those limits, though with- out the least injury to his health, the condition attaches and the policy becomes void (d), and is not merely suspended while the assured is without the limits unless some provision to that effect is contained in the policy. Even where such a condition is inserted in a policy, provisions are usual allowing the assured at a price to obtain a license to go outside the specified limits. And there is a general tendency on the part of insurers to remove local restrictions and grant " whole- world " policies so as to avoid the obvious inconveniences of the older system. Payment of Where a man was prevented from performing the preventTd iiy Condition to pay the annual premium by a state of war, war. a majority of the Supreme Court of the United States (b) HaHigan v. International Life, 8 Lr. Can. Jurist, 203. (c) Pirn V. Reid, 6 M. & G. i, 12 L. J. 0. P. 299, 6 Scott N. R. 982. (d) Beacon Life and Fire Co. v. Qihb, i Moore P. 0, N, S. 73, 100, 7 L. T. N. S. 74, 9 Jur. N. S. 185, 11 W. R. 194. Conditions in policieIs. 199 held that the policy must be regarded as extinguished by the non-payment of the premiums, though caused by the existence of war. But that such failure being caused without the fault of the insured, he was entitled to recover from the insurers the surrender value of the policy with interest from the close of the war («) ; and it has been held also in America that a man licensed for a time to go outside the territorial limit prescribed Eetum from in his policy will not lose the benefit thereof if expiry of ^^ hindered from returning by illness ultimately fatal, license . , ° . J ' prevented by but only resulting in his death after expiry of the illness, license (/). And in England it has been held, that where a license was given to the insured to reside Delay to act abroad for one year, and he delayed to go abroad for °° ''®"°*' three years, and then left this country, and died within a year, he was held to have acted within the license (g). In Scotland, policies by persons on lives other than PoUcy sur their own are not avoided by suicide of the life in- s"otiand not sured (h), and in this country it seems to be usual in avouied by . . . . . . suicide, policies on the lives of others to omit the condition against suicide. No cases seem to have arisen in England under the Military or condition as to military service, since English policies "^^^ service, usually stipulate only that active service shall be a ground of enhancement of premium. The extra premium is usually paid and no questions arise. In America in absence of such a stipulation it has been decided that a clerk in the adjutant-general's depart- ment not subject to military law, is not in military service (i), and that a man will be none the less in such service if he is taken as a conscript or goes merely to avoid compulsion (Jc). (e) New York Life v. Statham, 3 Otto (93 U. S.) 24. (/) Baldwin v. New York Life, 16 N, Y. Super. Ct. (3 Bosworth), 530. (ff) Notman v. Anchor Co., 4 0. B. N. S. 476, 27 L. J. C. P. 275, 4 Jur. N. S. 712, 6 W. R. 688, 31 L. T. 202. (h) Bell's Principles, 241. (i) New York Life v. Hendren, 24 Gratt. (Va.) 540. (Jc) DiUard v. Manhattan Life, 9 Am. Rep. 167. 200 tHE LAWS OF mSUKANCfi. Person effecting policy on another's life bound by his misrepre- eentation. He who takes out a policy on the life of another person in which he has interest, will be bound by wilful mis- representation or suppression of the truth by such person to induce the insurers to grant the policies, and more especially if such representations are incorporated in the policy. For thereby the bargain is only con- ditional, and it is equally a condition in the policy, be it made by whoever it may (^). Independently of the condition, the person on whose life the policy is to be made, if referred to for information, is made thereby agent of the assured, and the latter will be bound by his statements (m). It makes no difference that the assured had simply told the insurer's agent to make enquiries of the person on whom the policy was to be made. But if the assured has made most of the representa- tions, and only refers to the life on certain specific points, the knowledge of the life outside that particular matter is not knowledge of the assured (n). Concealment of refusal by former company to accept insurance. An applicant for insurance who conceals from the agent to whom he applies that he has already applied to and been refused by an agent of the same company, conceals a material fact. Knowledge of the applicant's previous dealings with other insurers is at least as material in fire as in life. Indeed the only thing most fire insurers want to know is the character of the insured, and the questions asked by them are mainly directed to his dealings with other insurance offices (o). (1) Maynard v. Khode, i C. & P. 360, 363, Bayley, J., 5 Dowl, & E. 266. (m) Everett v. Deshorough, 5 Bing. 503. (n) Buchman v. Fernie, 3 M. & W. 505, 7 L. J. N. S. Ex. 163, 2 Jur. 144. (0) Ooodwin v. Lancashire Fire, 16 Lr. Can. Jur. 298, 18 do. i. London Assurance v. Mansd, 11 Ch. D. 363, 48 L. J. Ch. 331, 27 W. R. 444. Daintree's claim, 18 W. R. 396. ( 201 ) OHAPTEE IX. AEBITEATION. An unqualified agreement to refer to arbitration and Earlier view of precluding the contracting parties from suing in the ^^fg^®""°°*^ *° Queen's Courts is invalid, for the Courts will not allow Jurisdiotion of their jurisdiction thus to be ousted. And where be ousted. a policy of insurance contained a clause that in case of any loss or dispute it should be referred to arbitration, it was held that if there had been a reference depend- ing or made and determined, it might have been a bar, but the agreement of the parties could not oust the Court ; and as no reference had been nor was any depending, the action was well brought, and the plaintiff must have judgment (a). In Morton v. Sayer, Pollock, C.-B., said, " In this case the deed discloses nothing more than an agreement generally to refer all disputes to arbitra- tion, and that does not prevent the plaintiff from maintaining this action " (b). Eegarding the rule that the jurisdiction of theRuieasto courts should not be ousted, Coleridge, J., said, " I °^^^^^- certainly am not disposed to extend the operation of a rule which appears to me to have been founded on very narrow grounds, directly contrary to the spirit of later times, which leaves parties at full liberty to refer their disputes at pleasure to public or private tribunals " (c). [a) Kill V. HolUster, i Wils. 129. Thompson v, Charrwck, 8 T. R. 139- (A) Sorton v. Satjer, 4 H. & N. 643, 29 L. J. Ex. 28. (c) ScoUv. Avery, 5 H. L. C. 811, 843, 25 L. J. Ex. 308, 2 Jur N. S. 815, 4 W. R. 746, 202 THE LAWS OF INSURANCE. 'Scott V Avery, 31d rule qualified. Statement of aw, per Brett, M. B. And in Scott v. Avery it was decided that where parties have entered into a contract of indemnity, they may, if they choose, agree that in the event of any loss occurring such loss shall be ascertained by an arbitrator they may select, and they may agree to pay such loss when it has been ascertained, and not other- wise (d). This case has been the subject of much comment and many explanations. In Edwards v. Jlerayron Conipy., Brett, M. R., said (e), "The true limitation of Scott v. Avery seems to me to be, that if parties to a contract agree to a stipulation in it, which imposes as a condition precedent to the maintenance of a suit or an action for breach of it the settling by arbitration of the amount of damage or the time of paying it, or any -matters of that kind, which do not go to the root of the action, i.e. which do not prevent any action at all from being main- tained, such stipulation prevents any action being maintained until the particular facts have been settled by arbitration ; but a stipulation in a contract which in terms would submit every dispute arising on the con- tract to arbitration, and so prevent the suffering or complaining party from maintaining any suit or action at all in respect of any breach of the contract, does not prevent an action from being maintained; it gives at most a right of action for not submitting to arbitra- tion, and for damages probably nominal. And this rule is founded on public policy. It in no way pre- vents parties from referring to arbitration disputes which have arisen ; but it does prevent them from establishing, as it were, before they dispute, a private tribunal which may from ignorance do what the in- vented tribunal here did, namely, act and persist in acting in contravention of the most elementary principles of the administration of justice." {d) Scott V. Avei-y, S H. L. 0. 8i i, 25 L. J. Ex. 308, 2 Jur. N. S. 81S, 4 W. R. 746. Brown v. Overhury, u Ex. Eep. 715. («) I Q. B. D. 563, 596, 34 L. T. N. S. 457. ARBITRATION. 203 The effect of Scott v. Avery is also well stated in statement of Mliot V. Boyal Exchange (/), by Bramwell, B. " If two Bralmvell, B. persons, whether in the same or in a different deed from that which creates the liability, agree to refer the matter upon which the liability arises to arbitration, that agreement does not take away the right of action. But if the original agreement is not simply to pay a sum of money, but that a sum of money shall be paid if something else happens, and that something else is that a third person shall settle the amount, then no cause of action arises until the third person has so ascer- tained the sum, for to say the contrary would be to give the party a different measure or rate of compensa- tion from that for which he has bargained. This is plain common-sense, and is what I understand the House of Lords to have decided in Scott v. Avery " ( g). There are only two cases where agreement to refer statement of can be successfully pleaded — First, where the action can je^sel.^M. E. only be brought for the sum named by the arbitrator ; secondly, where it is agreed that no action shall be brought till there has been an arbitration, or that arbitration shall be a condition precedent to the right of action iji). In all other cases, where there is first a covenant to pay, and secondly a covenant to refer, the covenants are distinct and collateral {%), and the plain- tiff may sue on the first, leaving the defendant to pur- (/) L. R. 2 Ex. 237, 245, 36 L. J. Ex. 129, 16 L. T. N. S. 399, 15 W. R. 907, and see Dawson v. Fitzgerald, infra. (g) See Tredwen t. Solman, i H. & C. 72, 79, 7 L, T. N. S. 127, 10 W. R. 652, 31 L. J. Ex. 398, 8 Jur. N. S. 1080. WrigJit v. Ward, 20 W. E. 21, 24 L. T. N. S. 439. Harvey v. Beckwiih, 2 H. & M. 429, 10 L. T. N. S. 632. Babbage v. Coulburn, 9 Q. B. D. 235, 52 L. J. Q. B. 50. Willesford v. Watson, 8 Ch. Ap. 473, 42 L. J. Oh. 447, 28 L. T. N. S,, 428, 21 W. R. 350. (A) Per Jessel, M. R., in IJawson V, Fitzgerald, 1 Ex. D. 257 at 260, 45 L. J. Ex. 894, 24 W. R. 773. Edwards v. Abcrayron Mutual Ship. Co., I Q. B. D. 563, 34 L. T. N. S. 457. Hopei- v. Lendon, 28 L. J. Q. B. 250, I E. & E. 825, 7 W. R. 441, S Jur. N. S. 491. Scott v. Liverpool Corporation, 28 L. J. Ch. 230, 3 De G-. & J. 334, 32 L. T. 265, 7 W. R. 153, 5 Jur. N. S. 105. Wright v. Ward, 24 L. T. N. S. 439, 20 W. R. 21. (i) CoUins v. Locke, 4 A. 0. 674, 48 L. J. P. C. 68, 41 L. T. N. S. 292, 28 W. R. 189. 04 THE LAWS OK OfSUftANCE. sue one of two courses — either to bring an action for not referring, or to apply, under sec. 1 1 of the Common Law Procedure Act, 1 8 S 4, to stay the action until there has been an arbitration, in which case a judge has power to prevent the case going to a jury if the arbitra- tion can be fairly enforced (k). jmmon Law By the Common Law Procedure Act, 1 8 S 4, s. 1 1 , it rocedure , . ot,i8s4,s.ii. is enacted that whenever the parties to any writmg shall agree that any differences between them shall be referred to arbitration, and shall nevertheless commence any action in respect of the matters so agreed to be re- ferred, it shall be lawful for the court in which the action is brought, upon being satisfied that no sufficient reason exists why such matters should not to be referred to arbitration, and that the defendant was at the time of the bringing of such action and still is ready and willing to concur in all acts necessary and proper for causing such matters so to be decided by arbitration, to make a rule or order staying all proceedings in such action upon such terms as to such court or judge may seem fit, provided that any such rule or order may at any time afterwards be discharged or varied as justice may require (I). It is not a condition precedent^ to the right of the court to refer to arbitration that all the parties must before action have been willing to go to arbitra- tion (m). ward not a A clause Stipulating that all matters in difference recedentto which should arise touching the agreement should be jtion. i submitted to arbitration, and prohibiting any action being brought in respect of the matters actually submitted to arbitration, is a collateral and independent agreement ; (4) Per Jessel, M. R, Dawson v. Fitzgerald, i Ex. D. 260, 45 L. J. Ex. 894, 24 W. R. 773. See also per Page Wood, V.-C, in Cooke v. Cooke, 4 Eq. 77, 36 L. J. Ch. 480, 16 L. T. N. S. 313, 15 W. R. 981. (I) 17, 18 Vict. c. 125, s. II. (to) Willesford v. Watson, 8 Ch. Ap. 473, 42 L, J. Ch. 447, 28 L. T. N. S. 428, 21 W. R. 350. ARBITRATION. 20$ and an award tliereunder is not a condition precedent to such action, except as regards sucIl suras as under the agreement are not payable until the amount thereof has been ascertained by such award (n). In Braunstein v. Accidental Death Company (o) the Ascertainment covenant was to pay such sum as should appear just condition and reasonable, and in proportion to the injury re- PJjfo^'^®"* *° ceived, such sum to be ascertained in case of difference in manner provided by the stipulations and conditions endorsed on the policy. The court held perform- ance of the stipulation to be a condition precedent to the right to sue. A policy of insurance against fire stated that if any view that difference should arise over any claim, it should be Ji^pu^'any^" immediately submitted to arbitration, and such arbitra- liability, action tion should be made by one or two persons to be in- differently chosen by the assured or his legal represen- tative, and by the office or by such third person as the other arbitrators should appoint, and no compensation should be payable until after an award determining the amount thereof should be duly made. In an action on the policy, it was held that the assured might maintain an action on such policy notwithstanding the condition, where it appeared that the insurers denied the general right of the assured to recover anything, and did not merely question the amount of damage (j>), but see Scott V. Avery. Where an adjustment by arbitration was made a condition precedent, and the insurers alleged that the policy was void by reason of concealment, it was held in Victoria that the assured could not sue till after such adjustment (q). This does not seem consistent (n) Collins v. Locke, 4 Ap. Ca, 674, 48 L. J. P. 0. 68,41 L. T. N. S. 292, 28 W. R. 189. (o) I B. & S. 782, 31.L.' J. Q. B. 17 (1861), s L. T. N. S. 550, 8 Jur. N. S. 506. (p) Qoldstone v.',Oahorne, 2 C, & P. 550. (j) London andlLancaahire v. Money, 2 Victoria Law 7. 36 THE LAWS OF INSURANCE. witli the last case ; and in a case in Lower Canada where a reference was made to valuers without waiver of the conditions of the policy, it was held that the insurer had not lost his right to use the conditions of the policy as to forfeiture if such were proved (r). Gorman v. Hand-in-Eand (s) was the case of a policy containing a covenant (subject to the conditions endorsed on the policy) to pay or make good all loss or damage not exceeding the amount insured, and a •natruotion Condition to refer differences, " which condition is to refer! '"" I'e deemed and taken to be an agreement to refer." The court held that this meant that the remedy for the breach of that condition was action or application under the Irish Common Law Procedure Act, 1856, s. 16, which remedy was wholly inapplicable to any provision qualifying the covenant to pay, and postpon- ing the cause of action thereon until ascertainment by arbitration, since application under the statutes pre- supposes an existing cause of action, while the essence of the provision qualifying the covenant is that the cause of action is not complete. A policy of insurance against accident contained (t) a condition that all disputes should, if the assured or his legal personal representative or the company required it, be referred to arbitration in the manner specified in the company's private act (u), which empowered the court or a judge to stay proceed- ition stayed, ings contrary to the Act (v). The court ordered a »rged. stay of proceedings in an action, as no issue of fraud was raised, and no reason appeared why the matter in question could not or ought not to be referred to arbitration. (r) La jRocque v. Royal, 23 Lr. Can. Jur. 217. (s) II Ir. Rep. C. L. 224. (J) Minifle v. Railway Passengers, dec, 44 L. T. N. S. 552. («) 27, 28 Vict. oxxv. s. 33. (v) Identical with sec. 11 of Common Law Procedure Act, 1854. ARBITRATION. 207 Some discussion has arisen on the question whether Eight to sue if fraud were charged this would entitle the plaintiif to question?'^ a jury. Pollock, B., in Minifie v. Railway Passengers, &c. saySj " Where fraud is imputed to the claimant, whether he he the assured or his personal represen- tative, it would be difficult to say that the plaintiff" ought not to have the opportunity of clearing himself from so grave a personal imputation in open court " (x). And this view has been taken in Wallis v. HirscJi (y), approved in Jffirsch v. Im' Thiorn (z). Jessel, M. E., in Russell V. Russell (a), expressed himself by no means satisfied that the mere desire of the person charging the fraud was a sufficient reason for the court refusing to send the case to arbitration, although if the person charging the fraud did not desire a reference the court ought to investigate the circumstances, and might, on a prima facie case of fraud being shown, in the exercise of its discretion refuse the order. Where, however, the person charged with the fraud desires an investiga- tion before a public tribunal, the court ought, said his lordship, as a rule, to exercise its discretion and to refiise to refer the matter in dispute to arbitration. On this principle it would seem that Lord Denman Seaworthinesa held, in Harrison v. Douglas, 3 Ad. & E. 396, that an referred, issue as to the seaworthiness of a vessel was for a jury, and not matter of reference within an arbitration clause. And in Scotland it has been held that after a claim has been submitted to arbitration and awarded on in favour of the insured, the insurers could still raise the question of fraud (h). (oc) Minifie v. EaUway Paaengert' Aseurance Co., 44 L. T. N. S. at 554. (y) I 0. B. N. S. 316. (z) 4 0. B. N. S. 569. See also WilUsford v. Watson, 8 Ch. App. 473, 42 L.'J.iCh. 447, 28 L. T. N. S. 428, 21 W. E. 350. (a) 14 Ch. D. 471 (1880), at p. 477, 49 L. J. Oh. 268. (J) Mercuks Ins. Co. v. Eunter,\i^ 0, S. C. (ist series) 800. ; 208 THE LAWS OF INSURANCE. Issue amounting to fraud. Where con- dition to refer onua on party objecting. Aq agreement making settlement of the loss in certain way a condition precedent to the bringing ( an action, does not compel the party to submit i arbitration the question whether or not the policy : void by reason of misrepresentation as to the conditio of the property insured (c). Where provision is made by the policy or othe means for reference of differences to arbitration, an prima facie right to go to a jury is lost, and the part seeking to go into court and exclude arbitration mm adduce to the court some sufficient reason why th matter should not be referred to arbitration. If the do not, the court is quite justified in being satisfie that none such exists (d). In the case below cited o: this point the plaintiff had sought to go to trial not withstanding an arbitration clause, and had contendei that the question to be tried was either of law, as t the line between death by accident and death by dis ease, upon which he was entitled to have the opinioi of the court, or of fraud, which would entitle him to i jury. But the insurers did not plead fraud, and thi sole point at issue was the conclusion to be drawi from a post-mortem examination. Point of law Bacon, V.-O., has decided that the assured is no referred. bound to submit a legal point to arbitration befor( suing (e). The right to have the matter in disput( referred to arbitration may be waived. Waiver of right to arbitration. I. Payment of money into court in an actior commenced on the policy has been held waiver oi condition precedent as to deciding disputes by arbitra- tion (/). 2. Taking possession of the insured property for (c) Alexander v. Campbell, 41 L. J. Oh. 478, 27 L. T. N. S. 2<, (d) Hodgson v. SaUway Passengers' Assurance Co., gQ. B D 188 («) Alexander v. Campbell, 41 L. J. Ch. 478, 27 L. T. N. S. 2 ? ' (/) ffarrison v. Douglas, 3 Ad. & E. 396. ■ ■ • 3- ARBITRATION. 2O9 purpose of repairs (g). In the case of a sMp this would be acceptance of abandonment ; in the case of a house it would amount to election to reinstate. 3. Where a provision is made for reference, the action, it seems, may be maintained if the insurers have not made any offer to refer or have simply refused to pay at all (A). Specific performance cannot be had of an agreement No specific to refer (i), nor can any measure of damage for breach a^ee^nU^o"* of such an agreement be easily found, except by adopt- ^^^^''• ing the suggestion of Lord Eldon (k), that the agree- ment should contain the mention of a fixed sum as agreed and liquidated damages for any attempt by either party to disregard the arbitration clause, and agreements to refer may be indirectly enforced by a motion to stay proceedings until reference had under sec. 1 1 of the Common Law Procedure Act, 1854 (l). Where an insurance is made with a society, under insurance in the Friendly Societies (m) Act, 1875, disputes between Sooietie^. a member or a person claiming through (n) a member (his heirs, executors, administrators, and assignees or nominees where nomination allowed), or claiming under the rules of a registered friendly society, and the society or an officer thereof, must be decided in the manner directed by the rules of the society, and the decision so made is binding and conclusive on all parties without appeal, and cannot be removed into any court of law or restrained by injunction. Enforcement thereof may be had through the county court. The Act contains further provisions as follows : — (gr) Cobb V. N. E. M. Marine, 72 Mass. (6 Gray) 192. (A) Robinson y. Oeorge Insurance Co., 17 Maine 131. MiUaudonM, Atlantic, 8 Louisiana (O. S.) 558. (i) Mexborough v. Bower, 7 Beav. 127, Langdale. (4) Street v. Rigby, 6 Ves. 815. (I) Ante,p. 202, and see Hodsonv. Railway Passengers' Co., 9 Q. B. D. 188. (m)38, 39 Viot. 0. 60, ss. 21, 22. (•m) Altered to meet the case of Kelsall v. Tyler, 25 L. J. Ex. 153. The old Act had " on account of," 2 I O THE LAWS OF INSURANCE. 1. Unless the rules of tlie particular society forbid it, the parties to a dispute in a society may by consent refer the matter in dispute to the chief registrar or the assistant registrar of Friendly Societies in Ireland or Scotland. 2. Where the rules provide for a reference to Justices, a court of summary jurisdiction is to decide unless the parties choose to consent to go to the county court, in which case that court is empowered to hear and determine the question in dispute. 3. Where the rules of a society contain no direction as to disputes, and no decision on a dispute is given within forty days after application by the society for a reference, under its rules the member or person aggrieved may apply either to the county court or a court of summary jurisdiction, which may hear and determine the matter in dispute. Disputes' as to 4- The court, chief, or other registrar, may at the claims. request of either party state a case for the opinion of the Supreme Court of Judicature on any question of law, and may also grant to either party such discovery as to documents and otherwise or such inspection of documents as might be granted by any court of law and equity, such discovery to be made on behalf of the society by such officer of the same, as such court or registrar may determine. , It was for a time thought, owing to the punctuation of the statute, that by sec. 30 the member of any friendly society whatsoever, or person claiming through him, might, notwithstanding the rules of the society, apply to the county court or to the court of summary jurisdiction for the place where such members and other persons resided, and that such court might settle the dispute in manner therein provided (0). (0) Ee Alfred Holt, 4 Q. B. D. 29. ARBITRATION. 2 I I In Holt's case (p) a claim was made by the repre- Mode of sentative of Thomas Holt for ;^ 14 as funeral allowance. oMms?^ The society resisted, and the claimant applied to the magistrate, though the rules of the society provided for arbitration. The Queen's Bench Division held that he was entitled to do so under sec. 30, sub-sec. 10, not- withstanding the provisions of sec. 22. But 42, 43 Vic. c. 9 was immediately passed, declaring that sec. 30 applied only to such friendly societies, registered or not, and industrial insurance companies as receive contribu- tions by means of collectors at a greater distance than ten miles from the registered office or principal place of business of the society or company. So Holt's case has no longer any force. But sec. 2 2 is so far controlled by sec. 30 that members or persons claiming through them, where the society on which they claim receives its subscriptions through collectors and collects outside a radius of ten miles from its head office, may sue in their domestic forum or local court instead of arbitrat- ing. In these cases the defendant is made to follow the plaintiff. ( P) 4 Q. B. D. 29. ( 212 ) CHAPTEE X. INDEMNITY. All policies on ^l policies on property are contracts of indemnity, contraota of and the law will not permit them to be otherwise con- in emnity. gtrued (a). It is quite immaterial what may be the nature of the property or risk (6). Even in the case of valued policies, which are rare, except in marine insurance, the interest of the assured must be proved (c). And the valuation only dispenses with proof of the amount of such interest. Valued fire policies are practically unknown in England (d). Valued policiea. Extent of indemnity. While insurance is a contract of indemnity, it is a contract of indemnity only to the amount whereon premium has been paid. The indemnity is limited to the amount named in the policy, and can in no case exceed that. This is the rule as to specific policies, i.e., those in which the things insured are constant and not variable from day to day, as in the case of merchandise. Such policies are those on houses and buildings. Where the policy is made subject to the conditions of average, and the goods at risk exceed in value the amount insured on goods in the place named, the risk only attaches to goods to the amount of such value. As to the rest, the assured must abate his claim for indemnity, in such a way that on the settlement of accounts between the parties he shall have borne a portion of [a) London Assurance v. Sainsbury (1785), 3 Doug. 245. Ooss v. WUkers, 2 Burr. 683, 697 (1758). (6) CasUllain v. Preston, 1 1 Q. B. D. 380, 52 L. J. Q. B. 366, 49 L. T. N. S. 29, 31 W. R. SS7. (c) Levyis v. Sucker, 2 Burr. 1 170. (4 Biaiett v. Royal Exchange, i C. S. C. (ist series) 174. INDEMNITY. 2 1 3 the loss proportionate to the amount by which he was at the time of the loss under-insured. The contract to indemnify made by a policy only Indirect promises indemnity as to direct damages. No damage covered.'^"* indirectly resulting from the happening of the event insured against can be recovered for. Thus damages for loss of business cannot be recovered under a poHcy on a tavern (e), nor for want of occupancy, or wages paid to servants thrown out of work by the destruction of the property (/), nor under an accident policy for anything but the expenses, &c., attendant thereon (g). Damage in the removal of furniture or by fall of a wall injured by the fire, or by water used in putting it out, is held direct (A). The amount of the indemnity is determined, not by Indemnit7= the cost, but by the value at the date of the loss of ^^"^ ^ that which is insured. By value is meant the intrinsic or market value on the day of the fire or other mishap insured against (i). But as regards houses full in- demnity to a tenant or person having a limited occupying interest therein seems to include, not the mere market value of such interest, but the pecuniary value plus the value of the beneficial enjoyment (Jc). In such case indemnity is best attained by reinstatement. A policy is not necessarily a contract of perfect indemnity (l) because of the limit of amount therein, and because of certain other qualifications ; such as, for Deduction, instance, the marine rule, one-third new for old, which ^^ ""^ ° has sprung up by the custom of trade, and operates in (e) Wright v. Pole, i A. & E. 621. (f)Menzies v. North British, 9 0. S. 0. (2nd series) 694, following Wright v. Pole. (g) Theobald v. Railway Passengers' Assurance Co., 10 Ex. 45, 23 L. J. Ex. 249, 18 Jur. 583, 23 L. T. 222, 2 W. n. 528. (7i) Johnstone v. West of Scotland Co., 7 C. S. C. (ist series) 53, p. 55, note. (i) Hercules Co. v. Hunter, 14 0. S. C. (ist series) 1137, 15 C. S. C. 800. (i) CasteUain v. Preston, II Q. B. D. 400, per Bowen, L.-J. See note (6) supra. (I) Irving v. Manning, l H, L. C. 287, 307, 2 C. B, 784. 214 tHE LAWS OF INSURANCE. some cases to give more and in otHers to give less than complete indemnity (m). This principle has in Ireland been applied to fire insurance ; but it was said by Pennefather, B., that no settled rule of deduction, one-third or one-fourth, or of any other sum,' existed in the case of old premises or property, but that the jury might, as a criterion of the actual damage, see what would be the expense of placing new machinery, such as was in the premises before the fire, and deduct therefrom the difierence in value between the new and the old (n), since the cost of repairing is an element in the damage suffered by the assured in such a case. Goods and furniture, especially the former, can of course be replaced without other appreciable expense than their cost, but machinery and the like required fixing and setting in position, and sometimes such work is costly and like rebuilding. Doctrine of abandonment applicable to fire insurance. Vance v. Foster (n) was a decision on circuit, and no case seems to have come before the full courts. It is clear that the custom to fix the ratio at one-third new for old is not established as to fire losses on land, but that similar computation is necessary to prevent over- compensation. The doctrine of abandonment intended to assist the principle of indemnity seems applicable not only to marine but to fire insurance, for Brett, L. J., said (o), " I concur in what has been said by Lord Blackburn (p), that abandonment is not peculiar to policies of marine insurance ; abandonment is part of every contract of indemnity. Whenever, there- (m) Aitdhison v. Lohre, 4 App. Cas. 755, 762, 49 L. J. Q. B. 123, 41 L. T. N. S. 323, 29 W. R. 1. (m) Fancev.i'osiCT', Ir. Giro. Reports47 (1S41). Hercules v. Bunter, 14 C. S. C. (ist series) 1137, 15 do. 800. (0) Kaltmhach v. M'JCenzie, 3 C. P. D. 467, 470, 38 L. T. N. S. 943, 26 W. R. 844. [p) Rankin v. Potter, L. R. 6, H. L. 83, 118, 42 L. J. G. P. 169, 29 L. T. N. S. 142, 22 W. R. I. See aiso Mason v. Sainabury, 3 Doug. 63. INDEMNItY. 2 I 5 fore, there is a contract of indemnity and a claim under it for an absolute indemnity, there must be an abandonment on the part of the person claiming indemnity of all his right in respect of that for which he receives indemnity." Mr. Marshall thus states the principle upon which Principle of the right of abandoning rests (q), " The assured may abandon in every case where, by the happening of any of the misfortunes or perils insured against, the thing insured is so damaged and spoiled, or the charges for its salvage are so high, that the costs of repairing, restoring, or recovering it would exceed its marketable value after they had been assured, or where the assured is deprived of the free disposal of it under circumstances which render its restitution uncertain." Probably one reason why the doctrine of abandon- "Why doctrine ment is not more frequently applied in those cases men/rarefy where furniture or goods are insured, is to be found in applied, the nature of such articles. A body of the size and complex structure of a ship may be so injured as to be useless for its special practical purposes without becoming of no saleable value ; and in such a case it is obviously fair that such value should be surrendered to the insurer when he pays as for a total loss. But such things as goods or furniture are, when considered singly, of a much simpler, smaller, and less costly character, and many of them are usually covered by one policy. Where, therefore, a part is injured or destroyed, the damaged articles are usually paid for by the insurer. The value of the injured part being separate and distinct from, and not, as in the case of a ship, inseparably connected with the injured part, a full and fair deduction in respect of it can be made from the amount of the policy ; and the assured is in no degree injured by having to retain the uninjured part of the subject-matter of the insurance. (q) Marshall on Insurance, 4 Ed. 452. 2 i 6 THE LAWS OF INSURANCE. Usually the damaged property is treated as salvage, and sold for what it will fetch, the sale price being accounted for between the parties. Principle on Whatever the difficulties arising in this branch of donment rests insurance law, it is clear that the principle upon which fnsuranceof abandonment rests, nz. indemnity, does apply, as the chattels. insurer is entitled on payment to all ways and means of lessening the loss (r), though the rule as to notice of abandonment in claims for a constructive total loss is marine only. reSSing, Where an insurer elects to reinstate, he is entitled entitled to old to the old materials left by the fire, and in any case he matenal. . '' ... will seek to reduce the amount of his indemnity by deducting their value. Eight of " When the person indemnified (the assured) has a suWeoto" right to indemnity, and has elected to enforce his inspance after claim, the chance of any benefit from an improvement claim by /« -i i ... . assured. of the value of what is in existence, and the risk of any loss from its deterioration are transferred from the person indemnified to those who indemnify : and there- fore, if the state of things is such that steps may be taken to improve the value of what remains, or to preserve it from further deterioration, such steps from the moment of election concern the party indemnifying, who ought, therefore, to be informed promptly of the election to come upon him, in order that he may, if he pleases, take steps for his own protection (s). In fire insurance this is effected by requiring immediate notice of a fire, and obtaining license by a condition in the policy to enter the premises insured or wherein the things insured are. (»•) Rankin v. Potter, L. R. 6 H. L. 83 at 118, 42 L. J. C. P. 169, 29 L. T. N. S. 142, 22 W. R. I. Kaltenbach v. M'Renzie, 3 0. P. ]^. 467, 38 L. T. N. S. 943, 26 W. R. 844. (s) Blackburn, J., Rankin v. Potter, L. R. 6 H. L. 83, lig.j INDEMNITY, 2 i 7 On general principles of law (not confined to marine Assured's insurance) an election once determined is determined for o}afm°fOT*'' ever, and such a determination is made by any act that partial loss shows it to be made. And therefore anything which indicates that the person indemnified has determined to take to himself the chance of benefit from an increased value in the part saved, and only claim for the partial loss, will determine his election to do so (t). A valued policy is a contract of indemnity to the valued policy owner, to the amount at which the property is valued "idemmty tu ' ^ . . amount or in the policy. The assured, if he has received on viiiuation. other policies, can only ask for such a sum as, with that already received, will give him the amount which the insurers by the policy sued or have bargained to give him. The amount already received is to be treated as salvage received by the owner after con- structive total loss. He and the insurer are both estopped from denying the value stated in the policy (u). The insurer, having contracted to indemnify, could insurer can't not insist on others being sued first who were pr^mariiy^*^ primarily liable (v), or on consolidation of his action liable to be ^. , / , > '' -, . , . sued first, with others, by the same assured against other insurers in respect of the same loss (x). And it is no defence to an action by the assured against the party causing the damage, that the assured has been paid by his insurers (i/). Subrogation, according to the older and narrower Subrogation, view, is the treating of an insurer, who has paid a loss, for which some other person is primarily liable, to the assured, as standing in the place of the {t) Blackburn, J., in Eanhin v. Potter, L. E.. 6, H. L. 83, 119. And see Clough v. London and North- Western Railway, L. R. 7 Ex. 26, 34, 41 L. J. Ex. 17, 25 L. T. N. S. 708, 20 W. R. 189. Mitchell v. Hdie, I T. R. 608, explained in Eoux v. Salvador, 3 Bing. N. C. 266. («) Bruce v. Jones, 32 L. J. Ex. 132, 7 L. T. N. S. 748, 9 Jur. N. S. 628, II W. R. 371. [v) Dickenson v. Jardine, 16 W. R. 1 1 69, 1 8 L. T. N. S. 717, L. R. 3 C. P. 639. {x) M'Oregor v. fforsfaU, 3 M. & W. 320. (y) Propellor Monticello v. Mollison, 17 Howard U. S. 152. Yates V. White, 4 Bing. N. C. 272. 2 I 8 THE LAWS OF INSURANCE. What Bubro- assured SO far as regards his rights of action against ga ion IS. g^^j^ persons. In the French law subrogation is defined thus : "La subrogation deeper sonne a lieu quand le payment fait par un tiers niteint pas la dette, et transmet a celui qui a payi les droits du crdancier " (2). Subrogation constitutes part of the law of indemnity, and as such includes more than the mere transference to the insurer of existing rights of action against third parties vested in the assured in respect of the loss. Probably the best and most inclusive as well as the most recent definition of subrogation, has been given Sir w. Brett, by the present Master of the Rolls, Sir W. B. Brett, in Castellain v. Preston (a), as follows : — " As between the insurer and the assured, the insurer is entitled to the advantage of every right of the assured, whether such right consists in contract fulfilled or unfulfilled, or in remedy for tort capable of being insisted upon, or already insisted on, or in any other right, whether by way of con- dition or otherwise, which can be or has been exercised or has accrued ; and whether such right could or could not be enforced by the insurer in the name of the assured, by the exercise or acquiring of which right or condition the loss against which the assured is insured can be or has been diminished. That seems to put this doctrine of subrogation in the largest possible form ; and if in that form, large as it is, it is short of fulfilling that which is the fundamental condition, I must have omitted to state something which ought to have been stated " (6). As to anything not within the definition, the general law of indemnity must be looked at (c), and this defini- tion is consonant with the view of Lord Blackburn (d), (z) 33 Dalloz Jurisprudence Generale, p. 399, § 1817. (a.) II Q. B. D. 381, 386, 52 L. J. Q. B. 366, 49 L. T. N. S. 29, 31 W. R. S57. (b) Same case, 386. (c) Same case, 404, Bowen, L. J. (d) Burnand v. Rodocanachi, 7 A. 0. 333, 339, 31 W. R. 65, 51 L. J. Q. B. 548, 47 L. T. N. S. 277. Indemnity. 2 1 9 who states the principle somewhat more briefly and generally. The mere payment of a loss by the insurer does not Payment of afford any defence to a person whose fault has been the no defenoe'iii^'^ cause of the loss in an action brought against the latter action by ° ° _ assured by the assured. But the insurer acquires by such against person . T . -, . . -, causing loss. payment a corresponding right m any damages recover- subrogated able by the assured against the wrong-doer or other io^damages"^* party responsible for the loss (e). This right rests recoverable by upon the ground that the insurer's contract is in the nature of a contract of indemnity, and that he is there- fore entitled, upon paying a sum for which others are primarily liable to the assured, to be proportionably subrogated to the right of action of the assured against them. The amount which, by the effect of the if insurers contract of insurance, and of the payment of a loss aubfogated"^ • under it, the insurers would have a right to recover to "siit to person ' o causing loss, it their own use from the person whose fault was the may be defence cause of the loss, the insurers would have the right to action against release and assign to such person, who would then have a claim to a deduction on this account from the damages to be recovered against him by the assured. This claim to a deduction does not arise out of any right inherent in such person, but out of the right so derived from the insurers (/). The law is so stringent as to the principle of in- PoUoy without demnity, that policies without benefit of salvage are ^^j'|^^* °j^j^ , in express terms made illegal (^). As the doctrine of abandonment is seldom applied to any but marine risks, questions of salvage do not arise so often (e) Randatt v. Gockran, I Ves. Senr. 98. Mason v. Sainshury, 3 Doug. 61. London Assurance v. Sainsbury, 3 Doug. 245. Olark v. BLytliing, 2 B. & C. 254. Bradburn v. Great Western liailway, L. E. 10 Ex. i, 44 L. J. Ex. 9, 31 L. T. N. S. 464, 23 W. E. 48. Yates v. White, ^Bing. N. 0. 283. The Potomac, 105 U. S. (15 Otto) 630, per Gray, J. iSmid- more v. Australian Gaslight, 2 N. S. W. Law 219. {/) The Potomac, ubi supra, (g) AUkinsv. Jupe, 2 0. P. D. 375, 46 L. J. 0. P. 824, 36 L. T. N. S. 851. 22C3 THE LAWS OF INSURANCE. in fire policies. But the amount of salvage is always an element in the computation of damages by fire, except where the insurers elect to take the salvage and pay in full, reimbursing themselves so far as they can by selling the salvage for what it will fetch. Position of Generally speaking, as to salvage the insurer stands Mlvage and" ^^ *^® place of the assured, and can claim all that is damage. salved ; and as to damage, the insurer is entitled to use and exercise the ways and means open to the assured for diminishing the loss and obtaining compensation (h). Defences An insurer suing the party through whose fault the goodlgainsr^ loss Occurred, can only assert the right of the assured, subrogated and wiU be subiect to any defences or equities which insurer. 1 1 i -< ■ , . mi i would be good against him. Thus where damage occurred through contributory negligence, that defence would be an answer to the action of the subrogated insurer. Again, if two ships of the same owner collided by the fault of one to the destruction of the other, the insurers could not sue the owner, since they claim under him (i). Insurer As between common carrier and insurer, the liability subrogation ^0 theowner of the goods carried and insured is primarily against carrier, qq fjjr^Q carrier, while the liability of the insurer is only secondary, and this, whether the contract of carriage is or is not first in point of time (Jc). Consequently the insurer is entitled to subrogation and not to con- tribution from the carrier. Reinsurer. Eeinsurers in America, on payment of their propor- tion of a loss, have been allowed to sue in Admiralty against the carrier of the goods injured. The question in any case seems to be merely one of procedure, as a [h) Bandall v. Cochran, i Vee. Senr. 98. London Assurance v. Sains- lury, 3 Doug. 245, 253. Castellain v. Preston, nhi sup. (i) Simpson v. Thompson, 3 A. C. 279, 38 L. T. N. S. i.' (k) Sail V. Railroad Co., 13 Wallace 17, S. 367. INDEMNITY. 2 21 reinsurer is clearly subrogated to the insurer's rights, and so to those of the assured (I) and any salvage or benefit thereof (m). A person partially insured can also sue any party Partial primarily liable for the loss. Such party may not i^^^^'^",',^^'^ profit by the insurance. But the assured will recover primarily (as to the balance in excess of indemnity) as trustee for the insurer (n). If a fire is caused by the negligence of servants of Negligence of a railway or steamer (o), the insurers are entitled to ^^"*'''^- subrogation. So also in case of negligence by muni- Of municipal cipal authorities (p). So also for damage by collision collision^' between river steamers (g'). Where the amount insured and paid is less than the where insur- value of the subject-matter of the insurance or the ^^^^ '^^^^^^ damage done thereto, an action against the person ^^^^^^sd is OX dOTTllTVUS ZltlS responsible for the damage should be in the name of against wrong- the assured, who would be the dominus litis, and not °^^' obliged to lend his name to the insurers for the purpose of proceedings by them. In such a case the assured should sue for the whole Assured must damage, and not release the action coUusively or com- iJi°sure?Jrf"hts promise it in any way injuriously to the insurers, and he will be accountable for the proceeds of such action so far as they with the insurance exceed complete indemnity, and he will be liable for anything done in violation of his equitable duty to the insurers (r). (l) The Ocean Wave, 5 Bissell (C. Ct. U. S.) 378. (m) Delaware Co. v. Quaker City Go., 3 Grant (Penn.) 71. (n) See Hall v. Railroad Co., 13 Wallace (U. S.) 367, and oases there collected. Commercial Union v. Lister, infra, note (p). (0) Quehec Fire v. St. Louis, 7 Moore P. 0. 286, I Lr. Can. Rep. 222. (p) Reesor v. Provincial Lnsurance Co., 33 U. 0. (Q. B.) 357. Com- mercial Union v. Lister, 9 Oh. A. 483, 43 L. J. Oh. 601. DarreU v. Tibhits, S Q. B. D. 560, 50 L. J. Q. B. 33, 42 L. T. N. S. 797, 29 W. R. 66. (7) Potomac, los U. S. (15 Otto) 630. (r) London Assurance v. Sainsbury, 3 Douglas 245, Willes, J, Smid- 222 THE LAWS OF INSURANCE. No defence to insurers that other parties first liable. Assured can- In the Very recent Australian case of Smidmore v. insurer's right Australian Gaslight Company, the insured property ortou'sT*'™ ^as injured by an explosion of gas due to the de- assured'sname. fendants' negligence. The assured, in consideration of compensation for such of the damage as was not covered by insurance, gave to the defendants an absolute release from all claims of him (the assured) on the defendants, and covenanted not to let any one use his name in bringing any action against the defendants in respect of the said damage. It was held that the insurers having paid, could sue in the assured's name, whether he liked it or not, and that the release applied only to the uninsured part of the loss, that alone being mentioned in the recitals (s). The insurers cannot plead as a defence to an action against them that other parties, not insurers, are first liable and should be first sued (t). In this respect they are like sureties, and having undertaken to indemnify against the loss of the thing insured, they cannot escape from the performance of their under- taking by showing the cause of its loss to be the fault of a third person. If the assured, after payment by the insurers, obtains by action (or otherwise than by special gifb not intended to be by way of indemnity (w) ), any money (or other indemnity which has a money equivalent (v) ), which together with the sum received from the insurers exceeds the total value of the property insured, the insurer will be entitled to recover from the assured the amount of such surplus (x). more v. Australian Gas Light Co., 2 N. S. W. Law 219. Commercial Union v. Lister, 9 Ch, Ap. 483, 43 L. J. Ch. 601. Simpson v. Thomp- son, 3 Ap. Ca. 279, 293, 38 ii. T. N. S. I. (s) Smidmore v. Australian Gaslight Co., 2 N. S. W. Law 219. («) Dickinson v. Jardine, L. R. 3 C. P. 639, 18 L. T. N. S. 717, 16 W. R. 1 169. («) Bumwnd v. Bodocanachi, 7 A. C. 333, ooo by several insurers, the valuation was speci- fied in each policy, and each policy also contained this provision. " Whenever this company shall pay any loss, the assured agrees to assign over to the said company all right to recover satisfaction therefor from any other person or persons, town or corporation, or the United States Government, or to prosecute therefor at the charge and for the account of the company if requested, and the said company shall be entitled to such propor- tion of the said damages recovered as the amount insured by them bears to the valuation of the said vessel." (/) Archambault v. La Mere, 26 Lr. Can. Jur. 236 (1882). {g) Burton v. Gore District Mutual, 12 Grant (U. C.) 156. Castellain V. Preston, 1 1 Q. B. D. 380, 52 L. J. Q. B. 366, 49 L. T. N. S. 29, 31 W. R, SS7- {h) New England Fire, &c. Co. v. Wetmore, 32 Illinois 221. (i) See per James, J., in Eaynor v. Preston, 18 Ch. D. I, 50 L. J Ch. 472, 44 L, T. N. S. 787, 29 W. R, 547. V 2 26 THE LAWS OF INSUKANCE. Assignment by A collision occurred, the insurers paid the assured tortfe"sor°of their proportion of the loss, and assigned over to rigM^uf *^® owners of the ship to blame all their right to defence. any damage arising out of the collision. The owners of the injured vessel brought their action for the damage, and the assignment of the insurer's rights was pleaded in defence. The United States Supreme Court held — 1 . That the insurers had no right to more than two- thirds of the damages recovered. 2. That the plaintiff having been equally in fault, only half damages could be recovered, and that of that half only one-third could be set off under the assign- ment (Tc). Extent of Insurers are only entitled to, damages for an injury insurer's claim » i • i xi i • i n j. i l- i by subrogation lor which they have paid, and to such proportion only vSued'and^ ^^ those damages as the amount insured bears to the where not. valuation in the policies (J) ; if they be valued policies, in which case the insured is estopped from setting up any other standard of valuation against the insurers (m) ; or if they be not valued, which is a simpler case, only to the extent of the indemnity paid by them. If the assured only gets half his damage as in colli- sion, the insurer, who has insured two-thirds of the whole value, will only get one-third of the damage awarded, as by his contract he was liable for two- thirds of the whole, not two-thirds of half the dam- age {n). (h) The Potomac, 105 U. S. (15 Otto) 630. (I) lUd. (m) North-Eastern Insurance Co. v. Armstrona. L B, e O T! -oAt 39 L. J. Q. B. 81 21 L. T. N. S. 8^2, 18 W R. jzofdouked L bJL^. Bodocanacht, 7 A. C. 333, 51 L. J. Q. B. 548, 47 L. T. N. S. 277, 31 (n) So in America, the Potomac, supra. INDEMNITY. 2 2/ Contribution takes place where different insurers Contribution insure the same interest in respect of the same pro- same^intert"t perty and the same perils (o). The conditions in a ^"gg^gnt'^ fire policy aim at increasing the occasions for contri- insurers, bution. And insurers often stipulate that the assured shall furnish the names of other offices with which he has policies, in order that they may have the proposals the same as those other companies, so that policies may be in similar terms and contribution facilitated (jo ). The assured may, but is not bound to sue all his insurers' insurers together. Or he may recover the whole and several, amount of his damage from one, and let that one seek contribution to reimburse himself, just as a guaranteed creditor has a choice of remedies, and may at his option proceed against the principal or his sureties (q). Contribution only can take place where double The total of insurance exists, i.e., where one or more policies have ^st^exMeT^' been taken out, the total amount whereof exceeds the l"ss. total value of the subject-matter insured. The assured, being entitled only to indemnity, can only recover the amount of his loss. And he is entitled to sue his insurers separately or successively until he has been recouped in full. To such action or actions it is a good defence that the assured has been already indemnified wholly or in part by other insurers. The insurer, on the other hand, is only entitled to contribution when he has paid. But he can either call in the other insurers as third parties in the (o) North British and Mercantile v. London, Liverpool, and Oldbe, 5 Ch. D. 581, per James, L, J., 45 L. J. Ch. 548, 46 do. 537, 36 L. T. N. S. 629. (p) Pendlebwry v. Walher, 4 Y. & C. (Ex.) 424, 441. (j) Stacey v. Franklin Fire, 2 Watts & Serg. (Penn.) 506. 228 THE LAWS OF INSURANCE. assured's action against him, or pay and sue tte other insurers for contribution in a separate action. Same property There is one other condition precedent to the right insured. to contribution, that the same property or interest, or some part thereof, shall have been insured with the several insurers (r), who claim contribution inter se ; and the usual condition as to contribution only means that there is to be a limit to the liability of the several offices where the respective offices are legally liable to contribute to the same loss in respect of the same fire (s). Difference between contribution and subro- gation. Contribution is distinct and different from subro- gation (t), and resembles the remedies between co- sureties, whereby the liability of each may be equalized or made proportionate. For subrogation to arise the assured must have concurrent remedies against the person causing the loss and against the insurer. Thus he may have a claim against the bailee of his goods by law, custom, or contract, and also a claim against his insurers by contract. There the bailee cannot claim against the insurer, but the insurer can in satis- faction of the loss claim against the bailee, who is primarily liable, and stands in a position analogous to that of a principal debtor whose debt is guaranteed. In contribution no one insurer is more liable than any other, no more than the whole loss can be recovered, and the aim of contribution is to distribute the loss among the different persons liable, so as to give each and all a diminution of their individual loss ; whereas in subrogation the aim is to shift the loss on to those who would have been liable if there had been no insurance. (r) Tuch V. Hartford, 56 New Hampshire 326, where two policies were taken out by mortgagor, one by mortgagee on own interest. Contribution on value of the equity of redemption. (») North British and MercantUe v. London, Liverpool, and Globe J Ch. D. 569, 582, James, L.-X, 36 L. T. N. S. 269, 46 L. J. Ch. 537. ' (t) Same case, 583, Mellish, L. J. INDEMNITY. 2 29 If the bailee insures his liability and the bailor insures his interest in the goods, the bailor's insurer is entitled to recover from the bailee or his insurer the whole damage, not a proportionate part, since each only represents his assured, and the right of the bailor against the bailee is not to contribution merely, but to complete indemnity for the loss of his goods («). In a very recent case (y), premises on which there Scottish were several mortgages were insured under four policies ;^™X,nt "' in the name of the first mortgagees jjriwzo loco, and of^ss»™™cc. the mortgagors in reversion. Each policy contained a contribution clause identical with that in North British & MercantiU v. London, Liverpool, and Glole, already cited. The premises were also insured in favour of subsequent mortgagees in the first place, and the mortgagors in reversion by policies containing a similar clause. The mortgagors paid for all the policies, and on a fire occurring the first mortgagees sued on their policies. The insurance companies objected that the other three companies were not called on for contribution. The court overruled the objection on the grounds — (i.) Because the plaintiffs had no right of action against the insurers on the last three policies, but only on the first four. (2.) That the words " same property " in the contri- bution clause meant the same proprietary interest, " the particular security, estate, or interest, which the insurance was to protect, and no other." (3.) That the first mortgagees had insured their own interest, and that no subsequent insurance by other mortgagees could diminish that interest. (tt) North British and Mercantile v. London, Liverpool, and Qlobe, ubi supra. (v) Scottish Amicable v. Northern, 21 So. Law Reptr. i8g, 11 0. S. C. 4th seriesj 287. 230 THE LAWS OF INSUEANCE. The opinion of the Lord Ordinary, which was approved by the Court of Session, was as follows :— " The clause of contribution can have no other objecl Per Lord M'Laren. Insurers of first mort- gagees cannot , , , claim con- or purpose than in the case supposed to reduce tne second mortgagees, if the policies cover several interests of the different mortgages. WerTof™™ liability of the subscribing companies to that of under- writers, that is a liability under which the assured should be entitled to recover the full amount of his claim, in payments from the several contributories, but should not be entitled in case of partial loss to throw the loss on one or more contributories to the exclusion of the others. My interpretation of the clause carries out this object. Under the defender's contention the pursuers would not recover the full amount of their claim, because their view involves the division of the loss into seven shares, of which the pursuers would only recover four. The division to be applied to the sum assured by the Northern Company, if the contract is a fair one, must be the ratio of the aggregate liability of the contributories to the actual loss. The defendants' proposal is to increase the division by adding to it the liability of persons who are not con- tributories. It is, I think, a good reason for rejecting their contribution, that it would enable insurance companies to evade fulfilment of their obligations. Another reason for rejecting it is that under it the right of the assured would be liable to be diminished by subsequent acts of parties not under their control. In the present case, for example, it is said that a second bondholder (mortgagee (x) ), by effecting his insurance has diminished the claim of the first bond- holder to a proportionate extent. A third reason against the defender's contention is that in the case of a total loss it leads to the result that the indemnity is to be shared between the first and §econd bondholders in proportion to the amount of their insurances, though in equity the first bondholder, if covered by insurance, ought to recover to the extent of his bond, and the ies^ And see page 193. INDEMNITY. 23 1 second bondholder ought only to recover the difference between that sum and the worth of the property, that difference evidently being the limit of his insurable interest. And the obligation of the later companies is to indemnify the deferred creditor should he suffer from the consequences of a fire ; and if this creditor does not suffer loss, there cannot be brought against them any claim for indemnification. They are to make up loss to the party whom they have assured ; they " are under no obligation to indemnify or to enter into arrange- ments for indemnifying a preferred creditor." The plaintiffs were suing for what was theirs, and not in the reversioner's interest. The case turns on what was meant to be insured, Scottish the property itself or the mortgagee's interest in each ^^.tij^n^' case (y). If the former, which is supported by the -Assurance fact that the mortgagor paid the premiums, contribution would seem proper. But on the other hand, this would enable the mortgagor to diminish the first mortgagee's security under the first policies ; and the only way to keep up his title is to let him recover on the policies, which are his security, or else to reinstate, or thirdly, to give the insurers paying him subrogation against the mortgagor. In this case the unhappy mortgagor, by providing a security for his mortgagee, would be simply giving the insurers a right of recourse against himself. But reinstatement would be the true solution, since thereby — The first and puisne incumbrancers would have their security preserved. The debtors would not be liable to subrogation. The insurers could contribute rateably to reinstate- ment without possibility of claim. (y) See same case, 194, Lord Young. 232 Contribution contrasted with subrogation, THE LAWS OF INSURANCE. In the case under discussion, if, after satisfying the claims of the mortgagees on their several policies, there still remained a balance of loss, that would be damage to the mortgagors' interest, and quoad that all the companies would contribute, that being, if the court were right, the only interest common to all the policies. The Scotch courts hold that the assured cannot select his debtor, but that insurers of the same interest may make their right to rateable contribution available in a question with the common creditor {z). Contribution differs from subrogation in several respects. In the first place it implies, as before mentioned, more than one contract of assurance, each of which undertakes a similar, if not identical, liability in respect of the same subject-matter and the same interest therein. Secondly, the amount of the insur- ances must exceed the value of the property or the damage done to it. When these circumstances exist, the insurers by contribution distribute the actual loss in such a way that each bears his proper share. The one thing which contribution has in common with subrogation is to reduce the indemnification of the assured within the bounds of a real indemnity. For subrogation there need not be more than one policy, nor need that offer complete indemnity. All that is necessary is that there should be, besides the insurer, another person liable to the assured, or some other means of indemnity open to the assured, other than and besides recourse to his insurer. In such a case the principle of subrogation will apply, and will entitle the insurer, not, as in contribution, merely to a rateable reduction of the indemnity paid by him, but to the enforcement of the assured's rights against others to the full extent of that indemnity. (a) 21 So. Law Eep. at page 198, Lord Justice-Clerk Monoteiff. INDEMNITY. 233 If the consignee takes out policies on goods held by Consignor and him in trust (in the mercantile sense), and the con- ''°°5'g''«^- signers effect policies, each on his own goods (a), or if the consignee effect policies also in their name, this will be a case for contribution if the consignor's policy is so drawn as to cover the merchandise and not merely the consignor's interest therein (h). But though a policy on the face of it is a contribut- pdicy may be ing policy, the course of dealing may be given in beToontri-*" evidence to show that it was not so intended when the luting one. policy in question is not a contract between the parties to the action (c). In some cases a floating policy has been held not liable to contribute rateably with specific policies covering the whole amount (d), and in others it has been held liable (e). The condition as to contribution usually provides Condition as to that the insured shall not be entitled to recover from contribution. the company any greater proportion of the loss or damage than the amount insured bears to the whole sum insured on the property, whether such insurance be by specific or by general or floating policies and without reference to the solvency or the liability of other insurers (/). It is doubtful whether in case of an insurance against fire on goods, with a clause stipulating for the pay- ment of only a rateable proportion in case of another insurance, if the assured procures another insurance on the same risk, and the loss is less than the whole amount insured, he may recover the whole loss from the first insurer, or only a pro rata payment from each (g). {a) Waters v. Monarch, 5 E. B. 870, 25 L. J. Q. B. 102, 26 L. T. 217, 4W. E. 245, 2 Jur. N. S. 375. Home Insurance Co. v. Baltimore Water Co., 93 U. S. (3 Otto) 527, 541. (6) Rohhina v. Fireman's Fund Insurance Co., 16 Blatohford (0. Ct. U. S.) 122. (c) Lowell Co. V. Safeguard Fire, 88 N. Y. 591, 1882. (d) Fairchild v. Liverpool and London, 51 N. Y. 65. (e) Merrick v. Germania, 54 Pennsylvania 277. (/) Johnson v. North British and Mercantile, I Holmes (C. Ct, U. S.) 117. (g) Stacey v. Franklin Fire, 2 Watts & Serg. (Penn.) 506, 543. ( 234 ) CHAPTEE XI. Two kinds. Condition. Average. CONDITIONS AS TO AVERAGE. Conditions on this subject are obscure and little under- stood. They take two forms — ( I .) A condition declaring the property insured to be subject to the conditions of average. (2.) A condition declaring that if any other sub- sisting insurance or insurances effected by the insured or any other person covering any property by the policy in question, insured either exclusively or together with any other property in and subject to the same risk, should be subject to the conditions of average, the insurance on such property under the policy should be subject to the conditions of average in like manner (a). Proportion payable. The aim of those conditions is to prevent under- insurance, just as conditions relating to contribu- tion seek to obtain the benefit for each insurer of another insurance, each particular assured being bound by the condition of his particular policy, it results that where several insurances have been made, indirect compulsion can be put upon persons not bound to a particular insurer through the insurer with whom they have contracted, in the interests of the general body of contributing insurers. The conditions of average are as follows : — If pro- (ffl) North Sntisli and Mercantile v. London, Liverpool, and Qlobe C Oil. D. 569, 45 L. J. Oh. S48, 46 do. 537, 39 L. T. N. S. 629. CONDITIONS AS TO AVERAGE. 2 35 perty is declared subject to average, and the property covered at the time of fire exceed the sum insured at the time of the fire, the assured will receive on his in- surance, not the whole amount of the loss or damage, but only such portion thereof as ascertained by a rule- of-three sum, in the following form : Value of property covered : insured amount : : dam- age done : damage payable. The consequence of this rule is to make the assured his own insurer as to a rateable portion of the loss, determined by the ratio between the value of the goods at risk at the date of the fire and the amount insured thereon. The aim of the condition is to provide full insurance. The property included in a policy subject to average Policy subject is covered by other and more specific insurance, which *peoifirpolioy! applies at the time of fire only to part of the property insured by the first policy and to no other property ; then the policy subject to average only insures the property as to an excess above the specific policies, and that excess will be, if need be, subject to average. By specific insurance is meant a policy or policies Specific insur- whereby the amount insured is payable irrespective of '"^°^' the value of the property within the risk at the time (S). If the specific insurances cover the whole property, the insurer, by a floating policy, will not have to con- tribute, nor will the average stipulations bring him under any liability (c). In an insurance on buildings for ;^2000, and furni- Buildings and ture for ;^2000, separately valued, but in the same Separately (h) Bunyon, Pire Ins., p. 2, and 144 et sqq. (c) Fairchild v. Liverpool and London, 51 N. Y. 65. Per contra, Merrich v. Oermania, 54 Pennsylvania 277. insured in same policy. 23 6 THE LAWS OF INSURANCE. policy, it was stipulated that, in case of any other insurance thereon, the assured should not recover on this policy any greater proportion of the loss than the amount assured by the insurer should bear to the whole amount assured thereon. A second insurance was taken out on building and furniture generally for ;^2000, and in this case the first insurers were held bound to pay two-thirds of the loss caused by a fire, and not permitted to contend that the second insur- ance, being on buildings and furniture equally, must operate to its full extent on both or either (d). Two-thirds While the conditions of average are inserted to c ause. ensure full insurance on fluctuating amounts of goods, and to prevent policy-holders from covering by their policies goods in excess of the amount insured thereby, a similar condition is inserted in some, especially mutual marine policies, and in Canada and the United States in policies on houses, &c., in the shape of a two-thirds clause, which works like the average con- dition, as will presently be seen, and under which the amount of indemnity, whatever the actual amount insured, is restricted to two-thirds of the value of the subject-matter at the time of the fire. In such a case the value of house or goods may fluctuate, and the amount recoverable will never be the actual damage done, but only a sum not exceeding two-thirds the cash value of the premises, and in any event not eX' ceeding the amount on which premium is paid. Thus if a building were insured for ;ifi5oo, and it was totally destroyed by fire, being at the time worth ;£'i8oo, the assured would under such a policy recover not ;^iSoo, but ;^I200 Only (e). Where a separate insurance is effected on separate {d) Unitarian Congregation v. Western Asswance Co., 26 TJ. 0. (Q. B.) 175- (c) Williamson v. Gore District Mutual, 26 U. C. (Q. B.) 145. Sea Post V. Hampshire Mutual, 53 Mass. (12 Metcalfe) 555. CONDITIONS AS TO AVERAGE. 237 proJ>9Eties, and the two-thirds value clause applies, Application of the insui'fe^caii recover only the two-thirds of the oUuse where damage donerS^he particular property injured, and ?®?^'"^*^g ^f not two-thirds of tM^iole insurance upon it. Thus if separate a house and furniture^PSCe insured for _;^i5oo, the '^"'"'^^'^ '^^' house at ^xooo and furnitufe at j^S^O, and the former were wholly destroyed, the amount recoverable would not be j^iooo, two-thirds of j^i SOQ, but two- thirds of the _^ 1 000, that being the limit of indemnity for the house (/). Where different subjects are insured at separate Different amounts specified under one policy, containing a clause insured at that the company shall be liable to pay to the assured ^^o™*^ j^ two-thirds of all such loss or damage by fire as shall same policy, happen, not exceeding the aggregation of the amounts insured, and amounting to no more on any one of the different properties than two-thirds of the value of each at the time of loss, and not exceeding on each the sum it is insured for, the policy is to be treated as a separate insurance upon each subject of insurance, and the company is liable only for two-thirds of the loss on each subject, notwithstanding that the loss on some subjects is less than the amount insured thereon, and the whole loss less than the whole amount insured (g). Average in fire policies is quite a different thing Difference from average in marine policies. In the latter itma^rand means a rateable contribution to the damage caused to ^'^*- part of the adventure by a common peril, i.e., the whole adventure is dealt with in solido, and any loss is treated as lost by all, to be apportioned among the co-adven- turers or their insurers if any. The average clause in a fire policy works in the same Average clause way as the rule for estimating the amount of the '" ^™ P^l'"?- (/) M'CiiUoch V. Oore District Mutual Fire Insurance Co., 32 U. C. (Q. B.) 610. {(?) King v. Prince Edward City Co., 19 U. C. (C. P.) 134. 238 THE LAWS OF INSURANCE. insurer's liability on a valued sea policy. In thejatter, if an adventure be valued, the insured is^estopped in case of loss from saying that the v^We exceeds the amount in the policy. "' And if he has a partial loss, he will only receive an indemnity for such loss calculated by the following proportion. As the actual value is to the actual loss, so is the insured value to the sum recoverable. Thus, if a ship worth _;^ 15,000 be valued at ^10,000, and suffer ;^5000 worth of damage, not that sum, but ^^3333, 6s. 8d. will be recovered Qi). So if in a fire policy subject to average the policy be for ;^ 1 0,000 on goods, and ^i 5,000 worth of goods be within the risk at the time of the fire, the assured will only get two-thirds of the amount of his loss. Goods in A marine average loss on a valued policy would be adjusted in just the same way. And the same principle is applied to policies on goods afloat in lighter canal boats, &c. {i). The amount at risk on the day of loss in all the owner's boats containing goods covered by the policy is t^-ken (k), and the amount payable for damage to any lighter is calculated as follows : — as the whole value of goods afloat is to the damage done so is the whole insurance to the amount payable. Thus if there be ;^ 10,000 of goods afloat, and the policyis for ;^ 5 000, the damage done being ;^iooo, the amount payable will be ;^SOO. (A) Lewis V. Sucker, 2 Burr. 1167, 1171, Lord Mansfield. Irving V. Manning, i H. L. 0. 287, 305, 2 C. B. 784. (i) Orowley v. Cohen, 3 B. & Ad. 478, i L. J. K. B. N. S. 158. (k) Joyce v. Kennard, L. R. 7 Q. B, 78, 41 L. J. Q. B. 17, 25 L. T. N. S. 932, 20 W. R. 233. lighters, ( 239 ) CHAPTER XII. OPTION TO REINSTATE. The position of insurers under a contract of insurance Option to containing an optio down as follows : — containing an option to reinstate has been well laid Eff"ct*of'. The insurers, in case of liability arising against them on their contract, had an option as to the manner in which they would discharge their liability. One mode looked to the compensation of the insured by the payment of damages for his loss, the other to the restoration of the subject of insurance to its former condition. It could not have been contemplated by the parties that both methods of performance were to be pursued. The selection by the insurers of one of those alternatiyes necessarily constituted an abandon- ment of the other (a). The election of the privilege of restoration involved the rejection, not only of the right to discharge its liability by the payment of damages to the insured, but also those provisions of the contract having reference to that method of performance. Prom the time of such election the contract between the parties became an undertaking on the part of the defendant to build or repair the subject insured, and to restore it to its former condition, and the measure of damages for a' breach of the substituted contract does not necessarily depend on the amount of damage inflicted by the peril insured against (6). (a) Times Fwe Co. v. Eawhe, i F. & F. 406, 28 L. J. Ex. 317. (J) Wynhoop v. Niagara Fire, 43 Am. Rep. 686, 91 N. Y. 478, and cases there cited. Mordl v. Irving Fire, 33 N, Y. 429, 240 THE LAWS OF EfSCBAXCE. If, therefore, the insurers elect to reinstate, and their reinstatement is not satisfectory, they cannot, it seems, plead refiisal by the assured to arbitrate as an answer to a claim for damages in respect of improper reinstate- ment (c). Beinstate- By the old Metropolitan Building Act (d) it is 14 Geo. m. c. provided that insurers may, '' upon the request of any ^ ' *■ "'■ person or persons interested in or entitled unto any house or houses, or other buildings, which may there- after be burnt down, demolished, or damaged by fire, or upon any grounds of suspicion that the owner or owners, occupier or occupiers, or other person or persons who shall have insured such house or houses, or other buildings, have been guilty of fraud, or of wilfully setting their house or houses or other build- iugs on fire, to cause the insurance money to be laid out and expended, as &r as the same will go, towards rebuilding, reinstating, or repsuring such house or houses, or other buildings so burnt down, demolished, or damaged by fire, unless the party or parties claim- ing such insurance money shall within sixty days next after his, her, or their claim is adjusted, give a snfficient security to the insurers that the insurance money shall be laid out and expended as aforesaid, or unless the said insurance money shaU in that time be settled and disposed of to and amongst all the contending parties, to the satisfaction and approbation of the insurers." Building A building is insured as a building. It is not specie. merely the material that is insured, but the beneficial interest of the assured therein (e), and therefore, to prove a total loss, absolute destruction of the material need not be proved. It is enough to show that the building has lost its identity and specific character (/). (e) Wynloop v. Niagara Fire, mpra. (d) 14 Geou m. c 78, 8. 83. («) Cattellain v. Pre$Um, 1 1 Q. B. D. -fgo at 397, Bowen, L. J., 52 L. .J. Q. B. 366, 49 L. T. N. S. 29, 31 W. R. 557. {f)Bnek v. Globe Itaitranee Co., 127 Maas. 306, 34 Am. Kep. 376. WiOiamt v. Hartford Co., 35 Am. Kept 77. OPTION TO REINSTATE. 24 1 This is in accordance with the rule laid down by the courts as to marine insurance (jj). It was for long thought that this section applied Scope of only to property within the bills of mortality, but in ^^' 1 864 the Lord Chancellor, Westbury (A), held that it was of general and not merely of local application. It was at the same time decided that the power of reinstate- ment uudor the Act applied only to houses and build- ings, and such fixtures as would pass by the convey- ance, and thoroforo not lo trade fixtures removable by the tenant. The right of reinstatement in any case only exists by statute or special contract, and in no way forms part of the common law of insurance (/). The whole of the Metropolitan Building Act, except sees. 83, 86, is repealed by subsequent statutes (A). Under the statute the insurer is authorised and required to reinstate in all cases of suspicion that the assured has been guilty of fraud. Further, ou the application of any person inter- insurer's ested {}) in the property, the insurer must reinstate, re'kftate" *° unless the parties interested come to tei'ms. Any one having any right or interest to or in the pre- mises (■«), can tlius, if he has notice of an insurance, stop the proceeds thereof, and insist on their being applied to the restoration of the premises in respect of which they have been received. It was probably intended by this Act to prevent landlords who had insured from receiving the whole proceeds of the property and then iusistiug on their rent, or tenants (g) Iimirance Co. v. Poijarti/, 19 Wall (U. S ) 644. Huiytrv. Auffiista Iiisuriince Co., J How. (U. S.) 565, and see Vi'oh.c v. Salvador, 3 Bing. N. 0. 266. (/i) Kf parte Crovfiey, 4 De a. J. & S. 477, u L. J. (Bly.) i, 13 W. R. 60, II L. T. N. a 319, 5 N. R. 22, 10 ,Tur. N. S. 10S5. (») See Wallace v. Insurance Co., 4 Louisiiui.i (0. S.) 289. (*) 7, 8 Yiot. 0. 84, 18, 19 Viot. 0. 122. (I) Pat-is V. Gil/iam (1813), Cooper 56, Grant, M. R. (mjSea Ejc parte Goreley, sujora. I^rnon v. Smith, 5 B. Sc Aid. r. 242 THE LAWS OF INSURANCE. from insuring the freehold value and by receipt thereof exercising a kind of power of sale of premises in which they had but a limited interest (n). In Mayner v. Preston (i 8 Ch. D. I (o)), James, L.-J., was of opinion that the effect of this Act was to make the insurance on the property on behalf of all in- terested ; and he said that he had never known any question raised as to the interest of the tenant. But in Castellain v. Preston (i i Q. B. D. 8 at 399) Bowen, L.-J., emphatically dissents from this view. Notice to If the notice to reinstate is not given to the insur- ance company before the money is paid over, it comes too late, and the money cannot be followed by the person giving such notice (^), unless he is a mort- gagee (§'), nor can he make any claim on the insurers in such a case. If the insurers are given notice and will not rein- state, the remedy is by mandamus (r). The remedy is open, not only to a landlord as in the case below, but to every person interested. Keinstatement The insurers can reinstate on their own account notice?* independently of quarrels between persons interested in the property. And our courts would probably, as in- Scotland (s), refuse an injunction to restrain the insurers from reinstating in such a case ; for " the duty of the insurance company to see the money so laid out is twofold — first, in the interest of the public to prevent (n) See CasteUain v. Preston, 11 Q. B. D. 380, 52 L. J. Q, B. 366, 49 L. T. N. S. 29, 31 W. R 557, and Niilo v. North America Insurance, I Sandford, N. Y. Ch. 551. (0) Mayner v. Preston, 18 Ch. D. i, 50 L. J. Ch. 472, 44 L. T. N. S. 87, 29 W. R. 547- ip) EdMO/rds v. West, 7 Ch. D. 858, 47 L. J. Ch. 463, 25 W. R Leeds v. OheetJiam, I Sim. 146. Lees v. Whiteley, 2 Eq. 14-?, ^c L. J. Ch 412, 14 L. T. N. S. 472. (j) Conveyancing Act, 1881. (V) Simpson v. Scottish Union, 8 L. T. N. S. 112, 32 L. J N S 320 I H. & M. 618, II W. R. 459, 9 Jur. N. S. 711, i N. R 537. 'Reynwri V. Arnold, 9 Ch. A. 386. («) Bisset V. Royal Exchange, i C. S, 0. (ist series) 175, OPTION TO REINSTATE. 243 fraud ; and secondly, in their own interest, because no more ought to bo laid out than was sufficient to erect buildings of the former character and description (t). It was held that the insurance company could inter- Interpleader plead in a case where the landlord brought an action ^ ™^^'^®'^' against them on the policy, and the tenant required them to reinstate (u). A landlord cannot, under 14 Geo. III., c. 78, s. 83, insurer not rebuild his houses and then require the insurance f^"^lord°^ho company to pay for them. Nor can a tenant who has reinstates. covenanted to insure and has mortgaged his interest, rebuild and then claim the policy monies in reduction of the cost of rebuilding as against such mortgagee (v). Notwithstanding the Act, fire policies usually, if not Condition in invariably, contain a condition as to reinstatement, reinstating! giving the insurers an option to reinstate if they so think fit. This condition, as usually drawn, is not, we think, merely declaratory of the power possessed by the insurers, under sec. 83, to reinstate under circumstances of suspicion, but enlarges their power and enables them to reinstate when in their discretion they think proper. The reservation of this option is as old as the case of Sadlers' Company v. Badcock (w). If the insurers do not rebuild within a reasonable ^i'eoaiiil"'"- time after signifying their election to reinstate, they reinstate. may be sued on the policy (x). If the insurer undertakes to reinstate, he must either make the new buildings as good as the old, or (i) Simpson v. Scottish Union, 1 H. & M. 618, 32 L. J. Ch. 329, 8 r,. T. N. S. 112, II W. R. 459. («) Paris V. Qilham, Cooper. Ch. Ca. (1813) 56. (v) Simpson v. Scottish Union, uhi sup. Gordon v. Ingram, 23 L. J. Ch. 478. (w) 2 Atkins 554, and see p. 212 swpra. ' (x) -Home Mutual v. Garfield, 14 Am. Rep. 27, 60 Illinois, 124. 244 THE LAWS OF INSURANCE. expend all the policy monies in a proper manner on the rebuilding (y). If he fails in this, he is liable to an action by the assured for the defective quality of the work, and must compensate him for it, but not to an injunction restraining him from rebuilding impro- perly (z). In Alchorn v. Savile, 4 L. J. Oh. 0. S. 47 (a), a case in which the provisions of the Building Act made it impossible to rebuild the house as it was before the fire (&), it was held that the company might be sued for compensation for the injury sustained by reason of the inferior value of the premises erected by the company, the Vice- Chancellor said, "The insurance company acted under a mistake when, instead of paying the sum insured, they elected to rebuild the premises. Insurers must They could not place their property in the same situation insM^FquJ ^s that in which it was before the fire. The Building or pay. ^^^ prevented them doing so. In truth, therefore, they had no option : they ought to have paid the money" (c). In America election to rebuild is held to amount to a contract to rebuild (d). If the insurers do not reinstate the property, the assured is not bound to accept the building (Alleyn v. Quebec, 1 1 Lr. Can. 394). They cannot put up what they like in lieu of the building destroyed, but must put it up as it was before. Fire during If they do elect to reinstate, and a fire occurs during reinstatement, reinstatement, it would seem that the company are {y) Parker -w. Eagle, 75 Mass. (9 Gray) 152. Cf. Insurance Co. v. Hope, 58 Illinois 75, 1 1 Am. Rep. 48, and in Scotland Sutlierland v. Sun Fire, 24 Soot. Jur. 440, 14 0. S. C. 2d series 775. (z) Home Insurance v. Thompson, I U. 0. (Err. & App.) 247, p. 245 infra. (a) Reported also in 6 Moore, C. P. 202, note. (5) See also Brown v. Eoyal, 1 E. & E. 853, 33 L. T. 134, 7 W. R. 479, 28 L. J. Q. B. 275, 5 Jur. N. S. 1255. HaU v. Wi-ight, E. B. &E. 746. Pollock on contracts, 376 (3d ed.) (c) See Brady v. North-Western Insurance Co., 11 Michigan 425. (d) Morell v. Irving Insurance Co. , 33 N. Y. 429. See also Ayder v. Commonwealth, 52 Barb. (N. Y.) 447. Times [Co. v. EaioTce, i F. & F, 406, 28 L. J. .Ex. 317. • OPTION TO REINSTATE. 345 their own insurers till the reinstatement is complete, and must commence reinstating cle novo, and cannot charge the assured with the cost of the second fire (e). And even if this were not so, in cases of partial destruc- tion the insurers would still be liable for the balance of the amount insured and not expended in reinstatement. If the insurers do elect to reinstate, the assured Assured oan't cannot refuse to let them do so and rebuild himself, ofdm^fga^nst and claim against them (/). They have the right so company, to elect under the statute or policy, or both. In America no allowance new for old is permitted. Allowance new In Ireland the contrary seems to have been decided {g). ^°^ °^^' If a landlord effect an insurance, and there is a Agreement collateral agreement between him and the tenant that {jfrd^^nd ^'^^^' he shall apply the insurance money in rebuilding the tenant as to premises, such an agreement will be good without any new consideration on the tenant's part beyond his acceptance of the lease, and probably without being put into writing (K), and the landlord would thereby be under an obligation to apply the proceeds of the said policy towards reinstatement. The effect of an election to reinstate is to make a Election to contract to reinstate, and to put the insurer into the ^^'"^ ^*^" same position as if he had originally contracted to do so. If reinstating is at the time of election lawful and possible, but subsequently becomes impossible, the insurers will be liable in damages as for breach of a contract to reinstate (i). Acceptance by the insurer of an order by the assured Order by to pay the loss, if any, to a third person, will not affect f^surers to pay _^^^ third person. (c) Smith V. Colonial, 6 Victoria L. E. (Law) 200. (/) Seals V. Home Insurance Co., 36 N. Y. 522. {g)Brinley v. National, 52 Mass. (ii Met.) 195. Vance v. Foster, I Ir. Cire. Rep. 47-51. See hereon p. 214 supra. (A) Pollock, contracts 380 (3d ed.) (i) Brown v. Soyal Insurance Co., above cited, Erie, J,, dissenting. 246 THE LAWS OF INSURANCE. the right statutory or contractual of the insurer to reinstate, such order operating merely as an assignment of the claims of the assured under the contract (_/). Election. But if the insurers once agree to pay, their election to reinstate is gone, and they will not subsequently be allowed to exercise it (k). {j) Tolman v. Manufcicturen' Insurance, 55 Mass. (i Cushing) 73. (k) Scottish Amicable Association v. Northern Asswance, 21 Scot, Law Reporter 189, II 0. S. C. 4th series, p. 287. ( 24; ) CHAPTER XIII. EEINSUEANCE. A CONTRACT to insure (a) gives the insurer an in- insurer has surable interest, which will support a reinsurance interest to (b) to the full amount of his liability on the 'reinsure, original policy. French authorities hold that his interest is less than that of the assured by the amount which he has received in premium, since that having been received is not at risk (c). But the real question is not what has been received but what may have to be paid. Reinsurance is only a modification of the contract Nature of of insurance, and as such is within the powers of a '^^'i™'^™"®' company authorised to make contracts of insurance. It is, in fact, insurance by the first insurer of his interest in the risk created by his contract to insure. Like the original contract, it insures the goods, buildings, or lives first insured, though the interest in the two insurances difiera (d). Where a form of insurance is ultra vires, the same applies to that form of reinsur- ance (e) ; and it may therefore be doubted whether a corporation not authorised to take marine risks could reinsure a marine risk against fire (/). A company for whose winding up an order has been Company being wound ~ ~~~ up unable to (o) MacTcmzie v. WhitwoHh, 45 L. J. Ex. 233, L. R. i Ex. D. 36, reinsure. 33 L. T. N. S. 655, 24 W. R. 287. (6) New York Bowery v. New York Fire, 17 Wend. (N. Y.) 359. Mutual Safety Co. v. Hone, 2 N. Y. (Comstock) 235. (c) Pothier. Par Dupin, vol. 4, p. 450, 1835 edition. (d) New York Boioery v. Nexii Ymk Fire, 17 Wend. (N. Y.) 359. Crowley v. Cohen, 3 B. & Ad. 488, per Patteson, J. (c) Same case, I L. J. N. S. K. B. 158. {/) Imperial Marine v. Fire Insurance Corporation, 4 0. P. D. 166. 48 L. J. 0. P. 424, 40 L. T. N. S. 166, 27 W. R. 680. 248 THE LAAVS OF INSURANCE. Assured not privy to reinsurance. lu America liability of reinsurer not affected by insolvency of reinsured. tTnless pro- vided for. English view of reinsurance is indemnity. made cannot effect any more policies whether of insur- ance or reinsurance. In such a case reinsurers by any policy would probably not be bound to do more than return the premiums if any paid to them (g). The contract being between the reinsured and the reinsurer, the assured has nothing to do with it except so far as it guarantees him against default by his own insurer (the reinsured), and he cannot sue on it (Ji). But the reinsurer's liability would be discharged by payment to the assured of the amount of his loss. And in America, but it seems not in England, the financial condition of the reinsured is not to be taken into account in the computation of the amount to be paid on a policy of reinsurance, nor is insolvency of the reinsured any defence to an action thereon (i). But special exception may be made, excluding this rule (k). And the words, "to pay as may be paid thereon," would seem to exclude liability in case the reinsured is insolvent. The result of the American view is to make a policy of reinsurance in the absence of special stipulation a guarantee of the solvency of the insurer in favour of the assured, who, ex hypothesi, is not privy to it. In England, however, a policy of reinsurance on a life is essentially a contract of indemnity, even inde- pendently of any terms contained therein or endorsed thereon. Consequently nothing is payable to the rein- sured company until proof be given by it that the sum originally insured has actually been paid (I). The person insured under the original policy cannot Assured has reinsuring claim any lien on the reinsuring policy, and if the policy. {ff) Carringtonv. Commercial Fire, 14N. Y. Sup. Ct. (i Bosworth) 152. (h.) Ibid. (i) Cashau v, North-Western Insurance Co., 5 Bissell (0. Ct. U. S.) 476. {k) I Emerigon, par Boulay-Paty, Ch. 8, s. 14. {I) Me Athenaeum Life, ex parte. Prince of Wales Assurance Co., I Johns 633, 28 L. J. Ch. 335, 32 L. T. 195, 7 W, R. 137, 5 Jur. N. S. 383.. EEINSUEANCE. 249 reinsured company becomes insolvent, the amount of the reinsuring policy, if paid, must go in with its other assets, and the original policy-holder can only get a dividend if those available for the purposes of his policy are deficient («i). A policy of reinsurance is an agreement by way of what under- complete or partial indemnity to the insurer on the Jg^nju^e^ original policy (n). It presupposes an insurance effected, and the liability of the reinsurer is contingent on the liability of the insurer, as reinsurance is really a contract to shitt liability, and its subject is the risk incurred by the reinsured (0). It is not necessary for a reinsurer to take the whole risk, or the whole amount at risk. Thus a marine insurer against all perils of the sea can reinsure against fire only (p), and keep the rest of the risk on his own shoulders. Where insurers grant two policies on the same pro- Proportion perty, the total amount of them being greater than the r^nsurer of value of the property insured, and subsequentlv thev °°® "^ several 7, 1 T • 1 , n, concurrent or reinsure on one 01 such policies only, the amount of the successive reinsurer's liability will depend on whether the insurers' ^° '"^'" policies are concurrent or successive (q). If the in- surances are concurrent, the reinsurer will have to pay such proportion of the whole loss as is equal to the pro- portion which the reinsurer's policy bears to the whole sum insured. Thus if goods of the value of ^1200 are insured to the amount of ^ i 500 by two policies for _;^looo and ;^500 respectively, and the latter policy only is reinsured, the reinsurer will have to pay _;^400. (ot) Carrington v. Commercial Fire, 14 N. Y. Sup. Ct. (l Bosworth) 152- (n) Joyce v. Realm Co., L. E. 7 Q. B. 580, 586, Lush, J. Insurance Co. V. Insurance Co., 43 Am. Eep. 413. (0) Mutual Safety v. Hone, 2 N. Y. (Oomstock) 235. ' (p) Imperial Marine v. Fire Insurance Corporation, 4 C P. D. 166, 48 L. J. C. P. 424, 40 L. T. N. S. 166, 24 W. R. 680. (2) Union Marine Co. v. Martin, 35 L. J. 0. P. 181. 2 50 THE LAWS OF INSURANCE. If, however, tlie insurances are successive, and the second policy is reinsured, the reinsurer will have to pay (so far as the sum reinsured suffices) the amount remaining of the loss after the first policy has been fully applied in satisfying it. E.g., if goods of the value of _^ 1 200 are insured by two policies successively for ^1000 and ^500, and the latter policy only is re- insured, after the appropriation of the policy first applicable, viz. the £ 1 000 policy, there will only re- main _;^ 200 to be paid by the reinsurer in respect of the ;^Soo policy. EfiEect of A reinsurance subject to all clauses and conditions pay as^may be in the Original policy and to pay as may be paid thereon, paid." attaches when the original policy attaches (r). In such a policy payment would seem at first sight a condition precedent to the right of suit thereon. But the true construction has been held in America to be, that it is meant to make the reinsurer's liability coex- tensive with the liability, and not with the ability to pay, of the insurers, and that the reinsuring company is to have the benefit of any deduction by reason of other insurance or salvage that the original company would have (s). Condition to A condition to pay pro rata at and in the same time payjjTO . ^^^ manner as the reinsured, cannot amount to a pro- vision that if the reinsured is insolvent the reinsurer is only to pay the amount of the dividend on the particular insurance available from the assets of the re- insured. The condition only means that the reinsurer shall only pay at and in the same time and manner as the reinsured shall pay or be bound to pay, and that the reinsurer shall have all the advantages of the time and manner of payment in the first policy (t). ()•) Joyce V. Realm Co., L. R. 7 Q. B. 580. ' (s) Exparte Norwood, 3 Bissell (C. Ct. U. S.) 504, 518. (t) Cashau v. NoHh- Western Insurance Co., 5 Bissell, C. Ct. U. S 476. Insurance Co. v. Insurance Co., 43 Am. Kep. 413. HEmSURANCE. 2 5 I The practice as to reinsurance seems to be to insert Payment by a clause in the policy of reinsurance, that if the re- enlbka him to insured pays, his so doing shall be evidence sufficient recover from to enable him to recover from his reinsurer (u). And it would seem that French reinsurers inserted a clause French rule. allowing the original insurers to make tond fide a voluntary settlement and adjustment to be binding on the reinsurers (v). The reinsured will, it seems, be entitled to recover Eeinsurer's from the reinsurer his costs of defending any action action by" brought by the assured under the original policy, if the assured, reinsurer does not on notice appear and attend to such suit ix). He may await judgment (3/) or proceed at once against the reinsurer ; and payment is not in America a condition precedent to his right of action (2). But where the reinsured gave the reinsurer notice that he meant to pay, to which the reinsurer gave no response, held that the reinsurer could still raise all the defences open to the original insurer in an action against him by the assured {a). The reinsured must of course in some way prove the Proofs, character and extent of his loss (&), and must fulfil all °^ ' '°°^' the conditions of his reinsurance (c). The reassured is entitled, besides the amount paid Eeinsured by him for the loss sustained by his assured, to be his reasonable and necessary ■ costs. {«) So stated in National Marine v. Protector Co., 5 Victoria (Law) 226, 229. {v) Pothier, cited in New York State Co. (U. S.) I Storey Rep. 458. [x) Hastie v. De Peyster, 3 Caines. N. Y. 190. Henry Rifle Barrel Co. V. Employers' Liability Co., 1884, Q. B. D. New York Central v. Protection Co., 20 Barb. (N. Y.) 468. {y) But see p. 253 infra, (z) Hone v. Mutual Safety Co., 3 N. Y. Sup. Ct. (l Sandford) 137. (a) National Marine v. Halfey, 5 Victoria (Law) 226. New York State V. Protector Insurance Co., i Storey Rep. (TJ. S.) 458. See M'Kenzie V. Whitworth, i Ex. D. 36, 33 L. T. N. S. 655, 24 W. R. 287, 45 L. J. Ex. 233. Joyce v. Realm Co., L. R. 7 Q. B. 580. (6) Yonkers Fire Co. v. Hoffman Fire Co., 6 Robertson (Louisiana) 316. (c) New York Central v. National Protection, 20 Barb. (N, Y.) 468, ie in lurance 2 THE LA.WS OF INSURANCE. indemnified by his reinsurer for all costs and expenses reasonably and necessarily incun-ed by him to protect himself and entitle him to recover over against the reinsurer. But if in a clear case of loss he defends without reason, he will not get his costs (d). aing of If a contract of reinsurance contains a contribution clause, such clause will, in the absence of specific words, be taken to refer to a case of double reinsurance only, and a custom for reinsurers to pay only such propor- tion of the loss as the amount reinsured bears to the original policy will not be admitted. The custom sug- gested in the case below cited (e) was that if partial reinsurance were effected, the insurer should only pay in full in case of a total loss, and in a partial loss should only pay proportionally in the way in which insurers pay under an average clause. If the contention in the particular case had succeeded, the reinsurer would have made what was a contribution clause work as an average ' clause, and have penalized the reassured for not shift- ing the whole of his liability. itionthat ^ Condition that the reinsured should retain a d retain certain sum equal to the amount reinsured on other parts of the same property, only means that they are to forbear from reinsuring so as to reduce their own risk below the stipulated amount, not that they must guarantee the continuance of existing insurances. So if the insured refuse to renew a policy of which the reinsured knows nothing till after fire, the condition is not violated. To construe it otherwise would be to make" the reinsured go on insuring against the will of the assured (/). 3 Where the reinsurance is on part of the original risk, f^origlnal *^^ amount retained cannot drop without the reinsur- hat . ed t drop i<^) ^^'"' ^"'"^ '^'"'^ ^"^ '^- P^'ote^tor Co., 1 Storey Eep. (U. S.) 458, it where Storey, J., cites the jurists. rauoe (e) Mutual Safety Co. v. Hone, 2 N. Y. (Comst.) 235. See Union ng. Marine v. Martin, 35 L. J. C. P. 181. (/) Canada Insurance Co. v. Northern Insurance Co., 2 U. C. (App.) 373- REINSURANCE. 253 ance dropping too. So that the original insurers must retain the part stipulated if they wish to keep up the reinsurance. But where the amount to be retained is a separate risk, though involved in the same peril, the word retain will not be construed as a guarantee that the assured will keep up all his existing policies {g). The reinsured must show as good faith as if he were Equal good seeking insurance, and not merely reinsurance (li), as frim remaur«- the latter is not a contract of suretyship, but a form of ^^^^''^^ the ordinary contract of insurance whereby a person who has guaranteed the safety of another's goods may have his own liability under the first guarantee covered by a second. Consequently, if information possessed by the re- Concealment, insured and material to the risk be not communicated to the reinsurer, the policy of reinsurance will be void. In some cases, therefore, a heavier obligation to dis- Reinsured , „ n J , . . must state to Close may tali upon the person seekmg reassurance reinsurer what than on his assured. Besides the information given ^.s^me^l °* by the latter, the former may at the time when grant- character, ing the original policy, or subsequently, learn material facts as to the risk, and these he must disclose on seek- ing reinsurance. Thus though the original assured would not be bound to give himself a bad character to his insurers, such insurers would, if seeking reinsur- ance, be bound to disclose what they knew of him (i), whether learnt before or after they granted the origi- nal policy. When reinsurance is made it is not necessary to "Whether disclose the fact that the policy is by way of reinsur- gStedTi he ance unless such fact is material (k). It seems to be ^ reinsurance. (g) Canada Insurance Co. v. Northern Insurance Co., 2 U. 0. (App.) 373- (h) New York Bowery v. New York Fire, 17 Wend. (N. Y.) 359. (i) Tbid. Sun Mutual y. Ocean Co., 107 U. S. (17 Otto) 455. [k) M'Kenzie v. WhUworth, 2 Ex. D. 36, 45 L. J, Ex. 233, 33 L. T. 655, 24 W. R. 287. 254 THE LAWS OF INSURANCE. usual to declare that reinsurance is sought if such be the fact, but there is no custom in marine insurance to that effect ; for marine reinsurance was illegal, with certain exceptions, till 1864 (l). msrcpresenta- Misrepresentation by the reinsured will avoid the reinsured as to poKcv. Thus where one company reinsured part of its risk retained . , ,.„ . , , -"^ by him. risk on a lite, stating that another portion would be retained, but parted with the rest before the first rein- surance was completed, the contract was avoided (m). But representations as to the nature of the risk will not help a reinsurer who has formed his own judgment of the'^nature of the risk (n). given by° ''* '^^® reinsured must also give notice, if required, of reinsured of other insurance on the property if he knows of it (0). inauranoes. In the case below cited the insurance was effected on an ordinary policy with reinsure substituted for insure. Condition that j^ would seem that if the reinsurer's policy stipulates reinsured may , . , . recover within that the reassured may recover thereon withm a after loss!^™^ Certain time after the loss, such time will run from the injury to the property, and not from payment under the original policy by the reinsured (jp). Condition as Jf jJ^^q insurance policy contains a condition that the furnishing proof satisfied parties assured shall furnish certain specific proofs as h' mi received from ^ition is complied with in contemplation of law, if the roitMng^proofs to their character, circumstances, and loss, such con- received ' assured. party originally insured furnishes such proof to his immediate insurers, and they transmit the same to their reinsurers (£). (1) 19 Geo. II., u. 37, s. 4. (m) Foster v. Mentor Life, 3 E. & B. 48, 23 L. J. Q. B. 145, 22 L. T. 305. Traill v. Barinff, 33 L. J. Ch. 521, 4 Giff. 485, 10 L. T. N. S. 215, 12 W. R. 678. Louisiana Mutual Fire Co. v. New Orleans Co., 13 Louisiana Ann. 246. (n) Canada Ins. Co. v. Northern, 2 XJ. C. (App.) 373. (0) New York Bowery v. A'cw York Fire, 17 Wend. (N. Y.) 359. (p) Provincial Insurance Co. v Etna Insurance Co., 16 U. C. Q. B. 145. (2) New York Bowery v. New York Fire, 17 Wend. (N. Y.) 359. Exparte Norwood, 3 Bissell (Giro. Gt. U. S.) 504. ( 255 ) CHAPTER XIV. OBLIGATION OF TENANTS TO INSURE. A TENANT for life or a tenant in tail, if the settle- Tenant for ment contains no provision or obligation as to tlie need not repair or insurance of buildings on the settled estates, '"'s"'^^- is not bound to insure or to reinstate in case of fire (a). And if such a person insures, paying the premiums When entitled out of his own pocket, he has been held entitled to money!^ the policy moneys as against the remainderman (h). This was first decided in the case of Seymour v. Vernon, Tenant in tail, the facts of which were that some stables were burnt ^an.^ down, and it was thought needless and inexpedient to I'rooeeds of rebuild them. The court had previously ordered the insurances to be kept up by a receiver for the benefit of all parties who, in the result of the decision of the court in the administration suit, should be found entitled. And Kindersley, Y.-C, held that, inasmuch as the pre- miums had been paid out of the income of the infant tenant in tail, the policy moneys were his. This case was followed and approved by Ohitty, J., in Warwicher V. Bretnall (c), where a mill comprised within a strict settlement under a will had been insured on account of an infant tenant in tail out of the rents of the estate, and had been burnt down. The proceeds of the policy were insuflScient for rebuilding, and it was not (a) Eayner v. Preston, i8 Ch. D. i, 50 L, J. Ch. 472, 44 L. T. N. S. 487, 29 W. R. 547, 6 Anne, c. 58 (31 Ruff.), 14 Geo. III. 78, 83. (6) Seymow v. Vernon, 21 L. J. Ch. 433, 16 Jur, 189. (c) 23 Ch. D. 188, see also 31 W, K, 520. 2 S 6 THE LAWS OF INSURANCE. thought for the benefit of any one interested in the settled estates that the mill should be rebuilt. The learned judge held that the policy moneys belonged to the infant tenant in tail as part of his personal estate, and were not to be treated as part of the real property comprised in the settlement. Branau"^''' With the greatest respect and deference for those iisoussed. learned judges, it seems that if their decisions are correct, a limited owner may insure settled property for its full value, and in case of fire appropriate to his own use, not only so much of the insurance money as is equivalent to the value of his own limited in- terest, but also the balance which represents the value of the interests in remainder. This appears to be opposed to the view expressed bj^ Lord-Justice Bowen (d), who says, " A person with a limited in- terest may insure either for himself, to cover his own interest only, or if he so mean at the time, he may insure so as to cover not only his own limited interest, but the interest of all others who are interested in the property. It is a question of fact what is his intention when he makes the policy. But he can only hold for so much as he intended to insure. . . . There is the case of a mortgagee : if he has got the legal ownership, he is entitled to insure for the whole, but even if he is not entitled to the legal ownership, he is entitled to insure primd facie for all. If he intends to cover only his own mortgage, and is only insuring his interest, he can only retain the amount in which he has been in- demnified. If he has intended to cover other persons besides himself, he can hold the surplus for those whom he has intended to cover. But if he intended to cover himself alone, and if his interest is limited, he cannot hold anything beyond the amount of the loss caused to his own particular interest." If the decisions [d) Oastellain v. Preston, 1 1 Q. B. D. 380, 52 L. J. Q. B. 376, 49 L. T. N. S. 29, 31 W. R. 557.. OBLIGATION OF TENANTS TO INSURE. 2 57 in Seymour v. Vernon and WctrmcJcer v. Bretnall are good law, it is submitted that one class of limited owners, viz. the tenant in tail, must be excepted from what the Lord Justice says; and a tenant in tail, insuring for all persons interested, may receive and retain, not only so much of the insurance money as represents the value of his own interest, but also the surplus which represents, and is really recovered in respect of, the interests of other parties. Even if the great authority of the learned Lord Justice did not seem to shake the decisions in Seymour v. Vernon and Warwicher v. Bret- nall, the considerations we have mentioned would make these decisions appear to us far from convincing or conclusive. There may be difficulty in estimating the proportion of the insurance money payable to the tenant in tail ; but why should not the whole insurance money be treated as realty, and come under the settlement in lieu of the property destroyed ? This would avoid all the difficulty of apportioning, and protect the rights of all parties. Mr. Davidson (/) says, "That in the absence of Opinion of special contract or obligation, the tenant for life is not ' ' bound to repair or rebuild in case of fire, and by parity of reasoning is not bound to insure, yet it seems that if he insured he would be bound to lay out the money in rebuilding." Tenants for years are not at common law bound to Tenants for insure. Their legal duty, — in the absence of special bou"dto agreement, is merely to use the demised premises in a injure, proper and tenantable manner, and includes no obliga- tion to reinstate in case of fire (g). It is true that the statute of Gloucester seems to have been construed so as to make them liable in case of a fire, if accidental, as for (/) Precedents Con v. 3rd ed. vol. 3, part I, p. 290 note (e). \g) Davidson's Precedents, vol. 5, pt, I (3rd ed.) S42 note a. Sugden, Handy Book 194 (8th ed.) 258 THE LAWS OF INSDKANCE. permissive waste if negligently caused, or for voluntary- waste (h). Tenants Dot But by 1 4 Geo. III. 0. 78, s. 86 (i), in the absence accidental fire, of any contract or agreement with the landlord, they are exempted from all liability for accidental fires " occurring in their houses, chambers, stables, barns, or estates," "any law, usage, or custom to the con- trary notwithstanding." The statute is mainly local, but this and some other sections are general (k). The history of the section well illustrates the method of legislation in this country. The exemption was first granted as to houses and chambers only in 1708, by 6 Anne, c. 58 (6. 7. 8.) (Euffhead, c. 31), for a limited period, but revived and made perpetual in 17 10 by 10 Anne c. 24, s. i (/). History of §83. In 1772 it was repealed and re-enacted in the 12 Geo. III. c. 73, s. 46, a Metropolitan Building Act. In 1774 it was repealed and re-enacted in its present form (m), except the provision as to treble costs, which has been repealed by Statute Law Eevision Act, 1861, while the rest of 14 Geo. III. c. 78, was repealed by 28, 29 Vict. c. 90, s. 34 (a Metropolitan Fire Brigade Act), which sec. 34 was in its turn repealed by the Statute Law Eevision Act of 187S (38, 39 Vict. c. 66). Such repeal does not, however, revive the repealed portions of 14 Geo. III. c. 78 (%). Tenant's Though now clearly not liable, except by contract, fire through ^°^ accidental fire, a tenant for years is liable ex delicto his negligence, ^t common law for damage done by a fire caused by (h) 6 Ed. I. u. 1278, see Davidson, I. c. Eamilton v. Mendes, 2 Burr. 121 1 (1761), Lord Mansfield. Turbervilv. Stamp, i Salk. 13. (i) This Act is whoUy repealed, except this section and section 83. (k) (1847) Filliter v. Phippard, 11 Q. B. 347, per Denman, C.-J. Rkharda v. Easto, 15 M. & W. 244. (/) 0. 14, Ruffhead. (m) Piatt on Covenants, i88. (m) See 13, 14 Vict. c. 21, s. 5. OBLIGATION OF TENANTS TO INSURE. 259 his own negligence, or that of his servants, to the property of his neighbours or his landlord (0), and such liability is in no way affected, lessened, or varied by section 86 of 14 Geo. ITI. c. 78. In virtue of this liability for negligence he has an May insure insurable interest in the premises occupied by him, and through^"^* he may lawfully insure against his own negligence (p). negligence. Indeed an ordinary fire policy protects against own Protection of or servant's negligence (except perhaps the very gross- poii^y."^^ est), or accidents, or arson by others, wherein assured has no complicity (q). Landlord and tenant may contract that the latter Tenant's shall be liable to the former in case the demised insurer^ 1 property shall be destroyed by fire (r). created. A tenant who covenants or agrees to repair generally Tenant under makes himself an insurer, and if the demised premises reparr^ound are burnt down within his term, will be bound to rein- *° reinstate. state, and is liable in damages if he does not do so. It does not matter whether the fire originated in or spread to the demised premises, nor how it was caused (s). A covenant by the tenant to pay any extra premiums insurance, exacted in consequence of work done or business carried J'g^nant'^'^ on by him, seems to apply to the ordinary trade of the tenant, and not to special acts increasing the risk, such as setting up steam-engines, &c. (i). (0) See Filliter v. Phippard, 11 Q. B. 347. See Vaugliany. Menlove, 3 Bing. N. 0. 468. Turbervil v. Stamp, i Salk. 13. (p) Dobson V. Sotheby, 1 Moo. & Mai. 90, 93 Tenterden, 0. J. (2) Midland Insurance Co. v. Smith, 6 Q. B. D. 561, 50 L. J. Q. B. 329, 45 L. T. N. S. 411, 29 W. R. 850. ()•) 14 Geo. III. c. 78, s. 86. (s) 1796, Bulloch V. Domitt, 6 T. R. 650. Pym v. Slachlurn, 3 Ves. Jr. 34. Chesterfield v. Bolton, 2 Com. 627. Digby v. Atkinson, 4 Camp. 275. Loader v. Eemp, 2 C. & P. 375. («) Duke of Hamilton's Trustees v. Fleming, 9 C. S. C. (3rd series) 329, and also Forbes v. Border Counties, 11 0. S. 0. (3rd series) 278. Piatt V. Kerry, 7 Lr. Can, Jur. 8o, 26o THE LAWS OF mSURANCE. Devisee for A devisee for life, witli a condition against commit- insurer™ ^" t™g Waste, and for keeping the premises in good and rebuUd of*° tenantable repair, is under the same liability as a tenant, limited owner, bound by an absolute repairing covenant, and the remainderman can make him rebuild. He cannot do so, however, unless such liability is imposed on him by the settlement under which he holds (u). Tenant when The trustee in bankruptcy of a tenant is in the same Trustee in position as the tenant, save for his power of disclaiming bankruptoy. g, burdensome tenancy (y). Insurable interest of tenant under covenant to repair. Position of insurers where landlord and tenant insure separately. The tenant who has covenanted " to repair and keep in repair " has an insurable interest in the premises sufficient to support a policy in his own name for the full value thereof. Such insurance is in effect a rein- surance of Ms own liability. Consequently if the land- lord insured too, the insurers would not be entitled to demand contribution inter se; but the insurer of the landlord would be entitled either to subrogation to the landlord's rights on his covenant against the tenant, or to return of the policy money if the landlord had enforced these rights (x). Effect of covenant to repair and to insure fixed sum. The covenant to repair makes the tenant an insurer to the full value of the premises even if he also covenants to insure for a fixed sum. The latter covenant is a collateral security to the landlord lessening but not limiting the tenant's liability, as he remains absolutely liable to reinstate on his covenant to repair (y). How liability It is Consequently advisable to exclude from the excluded. covenant to repair the case of loss or damage by fire. (u) Se Skingley, 3 M'N. & G. 221 Truro, 0. Gregg v. Ooates, 23 Beav. 33, 2 Jur. N. S. 964, Romilly, M. R., 4 W. K. 735. {v) 46, 47 Viot. 0. 52, s. 55. (x) Darrell v. Tibbetts, 5 Q. B. D. 560, 50 L. J. (Q. B.) 33, 29 W. R. 66, 42 L. T. N. S. 797. (y) Digby v. Atkinson, 4 Camp. 278 (1815), EUenborough, 0. J. Penmall v. Sariorne, 11 Q. B. 368, 17 L. J. (Q. B.) 94, 12 Jur. 159. OBLIGATION OF TENANTS TO INSURE. 26 1 By SO doing, the tenant removes from himself all liability as an insurer, and limits his liability to the case of breach of his covenant (if any) to insure {z). A covenant to insure is not personal, but a covenant Covenant to to do something in respect to the property demised, ™th^iand!° and is available to assignees (a) of the reversion against the tenant or his assignees, &c. (&) The landlord is never in England an insurer. He Landlord not is not bound at common law to rebuild in case of fire ; Landlord not in fact, he cannot enter upon the demised premises \l^^^l^ during the term except for breaches of the terms of the lease, and if he went in to rebuild would be a mere trespasser. If the landlord insures himself against any risk not Tenant cannot thrown on the tenant by the contract, and a fire occur, lord^^ho"^'' " the tenant has no equity to compel him to apply the '"f^^?! *° proceeds of the insurance in repair of the damage (c). Such insurance is a precaution for the landlord's own benefit. He alone is entitled to benefit by it, and there is no privity between the tenant and the insurer. If the landlord has covenanted to repair the part Tenant cannot burnt down, the tenant can only sue the landlord on jord rdn- that covenant, and must go on paying his rent in such stating out of a case even if the premises are burnt down {d). But policy, though it is doubtful if he has the power to attach the policy moneys when they have once reached the land- lord's hands, and require them to be employed to repair (z) Weigall v. Waters, 6 T. R. 488. See the covenants in Darrell v. Tibbetts, cited supra, p. 260. (a) Bullock V. Domitt, 6 T. R. 650, 44, 45 Vict. c. 41, B. 10. (6) Douglas v. Murphy, 16 U. 0. (Q. B.) u6, 1858. Vernon v. Smith, 5B. & Aid. I. Doe V. Gladwin, 6 Q. B. 953. Piatt on Covenants, 183, 18&-189. (c) Zeeds v. Oheetkam, 1827, Leach, M. R., I Sim, 146, 150, 5 L, J. O. S. Ch. 105. Lofft V. Denis, iS L. J. Q. B. 168 (1859). (d) Leeds v, Cheetham, i Sim, 146; 262 THE LAWS OF INSURANCE. Tenant can require insurer to ] reinstate. The law o£ Scotland. Covenant to insure is a nsual covenant. the damage in respect of which they, were paid, he can, as a person interested in the preraises, give notice to the insurer (e) to employ them towards reinstating such damage, and in that way obtain what he seeks. " The law of Scotland is much more favourable to a tenant than the law of England. In England it appears to be the rule that even if the premises let should be wholly destroyed by fire, the tenant must continue to pay rent for the term of his lease. In Scotland a much more reasonable and equitable rule prevails. If the premises let have been so destroyed or severely damaged that they have become no longer fit for occupation for the purpose for which they were let, the tenant, being deprived by damnum faiale of the subject for which he agreed to pay rent, is free from the obligation to do so. This equitable rule, however, is subject to conditions, one of which is that the part destroyed must be essential " (/). A covenant to insure is now an usual covenant in a lease, which a landlord is entitled to have inserted in pursuance of an agreement to take a lease with the usual covenants. And the lessee cannot demand to have it qualified by an exemption from the rent, if the house is destroyed (g). A covenant to insure does not make the tenant an insurer, but obliges him to find security of a certain kind to protect the landlord against the risk of fire. An insurance under it is of landlord's interest. Form of The covenant to insure is not void for uncertainty insaret" " where neither the words against fire nor the name of the ofiBce is mentioned (h). It is usual either to name (e) 14 Geo. III. c. 78, s. 83. (/) Allan V. MarUand, 20 Soot. Lav;? Eep. 268. 1 C. S. C. (3d series) 769. (g) Sharp v. MUligan, 23 Beav. 419. (A) Doe V, Shewin, 3 Camp. 134, Duff V. Fleming, OBLIGATION OF TENANTS TO INSURE. 263 particular insurers or to insert the words " some suffi- cient office " {i.e. solvent insurers), or " some office to be approved by the lessor," But the most satisfactory method is for the lessor to insure and charge the pre- miums as an additional rent. This method, if with the addition of a covenant by him to spend the pro- ceeds in reinstatement, leaves nothing to be desired. Damages for breach of a covenant to repair if a fire Damages for has happened are measured by the cost of rebuilding (i). covenant to repair. Damages for breach of a covenant to insure would Breach of be the amount of damage done by the fire not exceed- insure, ing the specific amount, if any, for which the insurance was to be made Qc). Where the covenant is to insure sufficiently, and is broken and a fire happens, the measure of, damage is the value of the buildings, &c., that being the limit of a sufficient insurance. Damages must not be cal- culated so as to give new for old. It is no answer to an action for breach that the landlord might pay the insurer and charge the premium as an additional rent, since the landlord is entitled to rely on the covenant and leave the tenant to keep the buildings insured at his peril : but if the tenant breaks his covenant, the landlord may pay the premium, and in such a case if a loss occurs the measure of damage for the breach will be merely the amount of premiums so paid (I). Where no loss has occurred, the measure of damages is what it would cost the landlord to put himself into the position in which he would have been but for the ■ [i) Mayne on Damages, p. 241. (3d ed.) (k) Douglas v. Murphy, 16 U. C. (Q. B.) 113. Yales v. DunsUr, 11 Ex. 15. {I) Douglas v. Murphy, 16 U. 0. (Q. B.) 116. 264 THE LAWS OP INStJEANCE. Relief for breach of covenant to insure. What breach works forfeiture. Forfeiture not cured by ante-dating receipt. Breach of cove- nant to insure, when not enforceable. omission of the defendant (m), i.e. the premium paid to keep up an existing policy, or obtain a fresh one, or take out one if none has been effected (n). The courts of equity used, to hold that breach of a covenant to insure was wilful, and one for which com- pensation could not be calculated (0), and therefore would not relieve from forfeiture so incurred. Hence it became needful to pass 22, 23 Vict. c. 35, ss. 4, 9. No forfeiture, of course, was worked thereby, unless so stipulated; and without a forfeiture clause the remedy for the breach was merely an action for damages. The breach must be substantial to work a forfeiture. Thus an insurance in the lessor's name is not a sub- stantial breach of a covenant to insure in name of lessor and lessee {p). But to insure in joint names when the covenant is to insure in the lessor's would be a substantial breach (q), since the lessee could in such a case give a good re- ceipt for the policy moneys. To leave the premises uninsured for ever so short a time is a breach (r). Where a breach has been committed, the insurers cannot cure the forfeiture, if any incurred thereby, by dating back the receipt (s) for the premium. If any conduct of the lessor induces the lessee to believe he is doing all that is necessary under the (to.) Mayne, Damages, 241 (3d ed.) Charles v. Altin, 15 0. B. 46-65, 23 L. J. 0. P. 197, 204. (n) Charlton v. Driver, 2 B. & B. 345. Quilter v. Mapleson, 9 Q. B. D, 672, 52 L. J. Q. B. 44, 47 L- T. N. S. 561, 31 W. R. 75. (0) Rolfe V. Harris, 2 Price, 206 note, Piatt, Covenants, 192. (p) Havens v. Middleton, 10 Ha. 641, 17 Jur. 271, i W. R. 256. Doe V. Pech, 1 B. & Ad. 428. (2) Pennial v. Ha/rborne, 12 Jur. 159, 12 Q. B. 368, 17 L. J. (Q. B.) 94' ()•) Hey v. Wych, 2 Gale & D. 569, 12 L. J. Q. B. 83, 6 Jur. 559. Doe v. Ulph, 13 Jur. 276, 18 L. J. (Q. B.) 106. (s) Wilson V. Wilson,'!^ C. B. 616, 18 Jur, 581, 23 L. J. C. P. 137, OBLIGATION OF TENANTS TO INSURE. 265 covenant, no forfeiture will result (t), since an estoppel Estoppel of is worked by the lessor's acts. ^^''°''- The lessor waives the forfeiture if he accept rent "Waiver by falling due after the breach ; but the breach is a con- tinuing breach, and the waiver operates only as to the portion of time prior to such waiver (u). 22, 23 Vict. 0. 35, the statute governing relief against breach of covenant to insure, has been repealed by 44, 45 Vict. 0. 41. Under the present law these cases are only impor- tant to show what amounts to a forfeiture, for the high court has now power to relieve against such forfeiture Relief under when proved on such terms as seem just. And no " ' stipulation or provision in a lease can in any way ex- clude this jurisdiction (v). The court may relieve upon terms such as an injunction against a future breach, or restitutio in integrum, or damages estimated in manner already indicated. It may be further observed that a landlord cannot now bring his action for a breach of covenant to in- sure, if he seeks a forfeiture in such action, unless he has served a notice on the lessee requiring him to remedy the breach and to pay a money compensation for the breach ; and unless the lessee fails within a reasonable time thereafter to remedy the breach to the landlord's satisfaction, if it is capable of being remedied. Forfeiture then for breach of undertaking to insure is therefore virtually impossible (x.) By the repeal by Conveyancing Act, 1881, of 22, Repeal of 23 Vict. 0. 35 (4-9), the protection (no longer really of '3?? "^ ' ■ E^cts. (i) Doe V. Rowe, i Ey. & M. 343. Doe v. Sutton, 9 0. & P. 706. (m) Doe V. Gladwin, 6 Q. B. 953. Price v. Worwood, 5 Jur. N. S. ' 472, 33 L. T. 149, 7 W. E. 506. Bridges v. Longman, 24 Beav. 27. (a) 44, 45 Viot. 0. 41, s. 14 (2). Quilter v. Mapleson, 9 Q. B. D. 672, 52 L. J. Q. B. 44, 47 L. T. N. S. 561, 31 W. E. 75, WoodfaU, 624, 625 (l2th edition). (a;) 44, 45 Viot. 41, s._i4 (1). 266 THE LAWS OF INSURANCE. Title to proceeds. Covenant to insure in landlord's name. needed) of an assignee of a lease, to whom the last receipt for rent has been produced, is withdrawn. On the other hand, the landlord no longer has the benefit of an informal insurance by the tenant, given by sec. 7 of that Act. Where the tenant covenants to insure in the land- lord's name, he is not entitled to receive the policy moneys in case of a fire, or to employ them in rein- statement, or to reinstate and then demand the policy moneys {y). It may even be doubted whether if he allows the landlord to receive the money he can insist on its being employed in reinstatement (z). But he is clearly entitled to serve a notice to reinstate upon the insurer, and by that method to obtain the benefit of the policy (a). And the landlord has the same right as against ■ any policy effected by the tenant on his own account (6). Separate Where the lessee is under covenant to insure, and landlord and ^^^ landlord insures also on his own account the same tenant, effects interest, the landlord's would seem to be covered in of. , both cases, and the insurers would be entitled to con- tribution inter se, where the insurance exceeded the whole value of the premises, or the fire was only partial. But in such a case the landlord will not be allowed to increase the liability of the tenant or to diminish the benefit of his policy, and will be obliged to bring into account what he has received on his policy (&). For instance, if both insured for ;fi^5oo on a house worth ;£^700, in case of total loss ;^3S0 would be paid on each policy, and the landlord would be obliged to account to the tenant for ;^iSo, the Double insurance. {y) Owrden v. Ingram, 23 L. J. (Oh.) 478, St. Leonards, (z) See, however, Reynard v. Arnold, 10 Oh. App. 386, 23 W. E. 804. (a) Under sec. 83 of 14 Geo. III. 78. (ft) Reynard v. Arnold, 10 Oh. A. 386, affirming S. 0. 16 Eq. 218, 23 W. B. 804. OBLIGATION OF TENANTS TO INSURE. 267 amount whereby the benefit of the latter's policy effected under a condition in his lease would be diminished. If damage were done, say to £1 00, each would receive £$0. But the landlord would have to hand over the £$0 which he received, or spend it in reinstatement. Where a tenant being under a covenant to repair, &c., but not to insure, does insure, such policy is not an insurance of the landlord's interest, but of the tenant's liability, and in such a case no contribution would take place between the insurers if the landlord insured, and the tenant would not be harmed by such an insurance (c). Where a tenant bound to insure has an option to Option to purchase, he can insist on the proceeds of a policy effected tenant l«)und by him being taken in satisfaction of part of the *° ui™re. purchase-money (d). A covenant to pay rent continues in force even after the destruction of the property in respect whereof it is payable (e). This liability gives the tenant who incurs Tenant's it an insurable interest in his rent which most offices Interest in are willing to cover. Where the covenant to pay rent '^®''*' is so qualified as to exclude this liability, the rent will, in case of a partial loss, be apportioned (/). But even a covenant excluding the liability to repair in case of casualties by fire will not remove the liability for rent (^). It is therefore prudent in all cases where liability to pay rent in case of fire is not clearly excluded for the lessee to insure his rent. Where a tenant is in no way responsible in case of (c) Darrdl v. Tibbetts, 5 Q. B. D. 560, 50 L. J. Q. B. 33, 29 W. R. 66, 42 L. T. N. S. 797. (d) Reyna/rd v. Arnold, 10 Ch. A. 386, 23 W. R. 804. (c) Holw/pfel V. Baker, 18 Vea. 115. Baker v. Holza'pfel, 4 Taunton 45 (1811). Lofft V. Denis, 28 L. J. Q. B. 171. Packer v. Qibbins, I Q. B. 421. Ison V. Gorton, 5 Bing. N. 0. 501 (1839). (/) Taylor v. CaldweU, 3 B. & S. 826, 32 L. J. Q. B. 164, II W. R. 726, 8 L. T. N. S. 356. (g) Belfour v. Weston, I T. R. 310 (1786), and Pender v. Ain (1767), therein cited. 268 THE LAWS OF INSUEANCE. fire, he may still be entitled to insure, to secure him- self against loss of the benefit of his term by the happening of a fire, or loss of premises for which he is liable to pay rent for a term. But the value of his tenant's interest not being commensurate with the value of the fee-simple, he could not, on an insurance on his own interest, recover the fee-simple value Qi) except by way of reinstatement. To hold otherwise would be to enable him, by adequate insurance, in case of fire to put himself into the freeholder's shoes. Covenant to Where a contract is made to insure the property of Bankruptcy of another, and that is burnt, and the contractor becomes covenantor, bankrupt, the owner of the property may prove in the bankruptcy for the value of the property lost. It does not seem to matter whether the contract is to effect an insurance or one to be liable for damage by fire. But the claim of the owner must occur by damage suffered before the bankruptcy. It might at first seem a mere claim for unliquidated damages, but the court in the case cited held that the quantity and quality of the timber was settled before the bankruptcy, and that the value was regulated by the market price, and that a proof for its value at that price was admissible (i). (h) Qastellain v. Preston, 1 1 Q. B. D. 380, per Bowen, L. J. Re- ported also 52 L. J. Q. B. 366, 49 L. T. N. S. 29, 31 W. K SS7- (i) Ex parte Bateman, 25 L. J. (Bky.) 19, 2 Jur. N. S. 365. ( 269 ) CHAPTER XV. MORTGAGE. The mortgagor Las an insurable interest in so much Mortgagor's of the property mortgaged by him as is of an insurable interest.* nature. Whatever the number of mortgages he is equitable owner still, and his right to insure remains co-extensive with the value of the property (a). In case of loss the mortgagor has a perfect right to look to his indemnity from the insurers as a means of dis- charging the incumbrances in the place of the property itself. The incumbrances do not cease with the loss, and the whole loss is the mortgagor's, and he remains personally liable for the mortgage debt ; for " every mortgage implies a loan, and every loan implies a debt, for which the personalty of the borrower is liable, though he have neither entered into a bond nor covenant for payment of it " (b). The mortgagor's insurable interest in the mortgaged Mortgagor's , . T , i'l ^ 1 11, -I interest ceases properties does not cease until loreclosure absolute, and on foreclosure, the extinction of all equities in his favour (c) ; and in Canada until the mortgage debt has been paid, though foreclosure has taken place, on the ground that the mortgagor is still liable {cl). In a recent American case the mortgagor was held to have an interest though the mortgagee had sold, as the sale was set aside. A mortgagee as such has only a partial interest in Mortgagee's any insurable property comprised in his security. His Interest.^ (a) Glover v. Black, I Wm. Bl. 396, 3 Burr. 1394. (i) risher Mortgages, vol. 2, p. 679. (c) Thompson v. Grcmt, 4 Mad. 438. See Angell, Ins. p. 100, for American cases hereon. Stephens v. Illinois, 43 III. 327. (d) Parsons v. Queen Insurance, 29 U. 0. (0. P.) 188, 211. This case came to the Privy Council on another point, 7 App. Cas. 96. 270 THE LAWS OF INSUEAJSCE. mortgage interest is limited to the amount of his mort- gage debt by the terms of 14 Geo, III. c. 48 (e). Any fire policy effected in virtue of his mortgage interest is merely a collateral security for his debt, for " the con- tract of insurance contained in a marine or fire policy is a contract of indemnity and indemnity only, and the insured, in case of a loss against which the policy has been made, shall be fully indemnified, but shall never be more than fully indemnified" (/). Such mortgage-interest has in New Brunswick been decided to end on foreclosure absolute, and if a fire happen thereafter the mortgagee cannot recover on the policy effected by him as mortgagee {g) ; and he cannot, in case of a fire, recover more than the amount due at the time of the fire upon his security, because that is the measure of his loss, and the contract is only one of indemnity. The same is also the rule in Canada (A). Such a policy will not, according to some American authorities, cover further advances, unless it be specially so stipulated (i), so that though the mortgage deed may contemplate Further further advances, only the unpaid balance of the amount due at the time when the policy was effected can be recovered. This would, however, seem to be at variance with English law ; for " a person who has a limited interest may insure nevertheless on the total value of the subject-matter of the insurance, and he may recover the whole value subject to these two provisions. First of all, the form of his policy must be such as to enable him to recover the total value, because the assured may so limit himself by the way in which he insures as not really to insure the whole value of (e) See Bowen, L. J., in Castellaim, v. Preston, 11 Q. B. D. 380, 52 L. J. Q. B. 366 at 376, 49 L. T. N. S. 29, 31 W. E. 557. (/) Castellain v. Preston, 11 Q. B. D. 386, per Brett, L. J. (g) Oaskin v. Phoenix, 6 Allen (New Br. ) 429. See also Smith v. Columbian, 17 Penn. 253. Seeing that he has only insured a special interest, and not the premises. (A) Ogden v. Montreal, 3 U. 0. (C. P.) 497, and see Msworth v. Alli- ance Co., 43 L. J. 0. P. 394 n. a case of insurance of a partial interest or lien. Aai also Johnson v. North British and Mercantile, i Holmes (U. S. Circ. Ct.) 117. Sumphrey v. Sartford Fire, 15 Blatchford (U. S.) 504. (i) Smith V. Columbia, 17 Penn. 253. advances. MORTGAGE. 2/1 the subject-matter ; and secondly, lie must intend to insure the whole value at the time " (k). It therefore seems that if the policy is such as to cover the full value of the property insured, the mortgagee might recover to the full extent of his interest therein, whether such interest were created by original advance or further advance. The mortgagor has no interest in a mortgagee's policy effected with the mortgagee's own moneys, and not in pursuance of any agreement between them (I). But by the operation of sec. 8 3 of the old Metropolitan Mortgagor'a Building Act (m) (left unrepealed by the Metropolitan mortgagee's Building Act, 7, 8 Vict. c. 84), the mortgagor mayP"^"'^- insist on the proceeds of a mortgagee's policy being applied towards reinstatement, and thus the policy might enure for the benefit of the estate (n). Mr. Davidson therefore thinks (0) that in such a case the mortgagee would have a right to recover the premiums independently of Lord Oranworth's or the Conveyancing Acts, probably as money paid to the mortgagor's use. This, however, has not been expressly decided. In the absence of express stipulation, a mortgagee Mortgagee's could not, independently of statute (p), charge in pr'emiums. account the premiums paid by him upon an insurance of the property against fire (q), nor could he (even though the mortgagor had covenanted to insure against fire and neglected to do so) as against a subsequent incumbrancer, himself insure the mortgaged premises and add the sums so paid to his mortgage debt (r). I (k) Castellain v. Preston, 1 1 Q. B. D. at 398, per Bowen, L. J. See note (e) supra. (l) Boison V. Zand, 8 Hare 216, 14 Jur. 221, 19 L. J. Ch. 484. King V. State Mutual, 61 Mass. (7 Gushing) i. (m) 13 Geo. III. c. 78. (n) Fxp. Gorely, 4 De 6. J. & S. 477, 13 W. R. 60, 34 L. J. (Bky.) I, II L. T. N. S. 319, 10 Jur. N. S. 1085. (0) Precedents, vol. ii. part 2, page 59 note, 4th edition. ip) 44. 45 Vict. 0. 4, a. 19 (2). (5) Bellamy v. Brichenden, 8upra,.2 J. & H. 137. (r) Brook v. Stone, 34 L. J. Ch. 251, 12 L. T. N. S. 114, 13 W. R, 401 (1865). 272 THE LAWS OF mSUEANCE. Chattels do not come within the scope of 1 4 Geo. III., 0. 78, s. 83, and reinstatement of them cannot be had. Not obliged to Consequently the mortgagee cannot be made to expend, fixtures. in reinstating fixtures which were not attached to the freehold, money arising from an insurance thereon effected on his own account (s). Mortgagee's If the mortgagor after the mortgage, and in the mortgagor's absence of any agreement by him to insure, does insure, policy. ^}jQ mortgagee could not, until the passing of the Conveyancing Act, 1881, claim to be paid out of the proceeds of such insurance (f). He could, however, if the insurance money had not been paid over, insist on its being applied in reinstatement (u). Now, however, Conveyancing by the Conveyancing and Law of Property Act, 188 1 " ' ^ ^' (y)} ^ mortgagee, where the mortgage is made by deed, will have the power to the like extent as if it had Conveyancing been expressed in terms by the mortgage deed " at any Act, § 19. ^^^Q g^f(.Qj. ^^Q ^^^g Qf ^jjQ niortgage deed, to insure and keep insured against loss or damage by fire any building, or any effects or property of an insurable nature, whether affixed to the freehold or not, being or forming part of the mortgaged property ; and the premiums paid for any such insurance shall be a charge on the mortgaged property in addition to the mortgage money, and with the same privity, and with interest at the same rate as the mortgage money " (x). Conveyancing And by sec. 23 of the same Act it is provided that ot, §23- (i) " The amount of an insurance effected by a mort- gagee against loss or damage by fire under the power in that behalf conferred by this Act shall not exceed the amount specified in the mortgage deed, or, if no amount is therein specified, then shall not exceed two- (s) Ex pa/rte Gorely, uH av/pra, {t) II Dav. 56. Leea v. Whitdey, 2 Eq. 143, 35 L. J. Oh. 412, 14 L. T. N. S. 472, 14 W. E. 534. See Angell, 114, s. 60. (u) Ex 'paHe Goreley, vhi supra, (v) 44, 4S Vict. 0. 41. (ic) B. 19, clause 2. , MORTGAGE. 273 third parts of the amount that would be required in case of total destruction to restore the property insured. " (2.) An insurance shall not, under the power con- ferred by this Act, be effected by a mortgagee in any of the following cases (namely) : — " Where there is a declaration in the mortgage deed that no insurance is required. " Where an insurance is kept up by or on behalf of the mortgagor in accordance with the mortgage deed. " Where the mortgage deed contains no stipulation respecting insurance, and an insurance is kept up by or on behalf of the mortgagor, to the amount in which the mortgagee is by this Act authorised to insure. " 3. All money received on an insurance effected under the mortgage deed or under this Act shall, if the mortgagee so requires, be applied by the mortgagor in making good the loss or damage in respect of which the money is received. " 4. Without prejudice to any obligation to the contrary imposed by law, or by special contract, a mortgagee may require that all money received on an insurance be applied in or towards discharge of the money due under his mortgage." The Act imposes no obligation to insure upon the mortgagor. It simply gives in certain cases to the mortgagee the power to effect and keep up a policy and pay the premiums which will become a charge on the mortgaged property in addition to the mortgage money, and the mortgagee can only charge the mort- Eemarka on J.-L • • J. T ii OonveyanciDg gagor the premiums on an msurance not exceeding the Act 1881, amount agreed in the mortgage deed, or if none be there agreed, two-thirds of the cost of reinstating, sec. > 23 (i), and he cannot charge the mortgagor with pre- miums in the face of contrary stipulations, 9 2/4 THE LAWS OF mSUEAlfCE. Act applies to The Act applies only to a mortgage by deed. Where deedf^^* ^ an equitable mortgage exists with an agreement to execute a legal mortgage, the mortgagee can compel the execution of the latter; but it would seem from the terms of the Act, could not exercise his statutory rights until the execution of such deed. Two-thirda The limit of insurance for which the premiums can able.^ ^°°"'^' be charged to the mortgagor, two-thirds of the cost of reinstatement, seems based on the usual limit of a mortgagee's advance. Reinstatement The Act provides for a defect in the sec. 83 of 14 anci^g Ac^r''' Geo. III. c. 78, by giving the mortgagee a power to '^^'" insist on the proceeds of any insurance effected under the mortgage deed or the Act being employed in rein- stating the premises, sec. 23 (3), whether the same have or have not been paid over to the insurer. Sec. 8 3 only compels insurers to reinstate on the request of parties interested in the property insured, but does not oblige either of such parties, to whom the insurer may have paid over the insurance money, to reinstate on the request of the other parties interested. These statutory provisions do not affect the mortgagee's right to insure the whole amount of his mortgage debt in a case where he is insuflBciently secured by policies to the Conveyancing amounts aforesaid. But he would be unable to charge mortgagee's the premiums on an amount in excess of what is specified right to charge • ^^q statute, and would be liable to have the proceeds premiums, not ' ... . his right to of his policy applied m remstatmg the premises if the mortgagor so desired it (y). Settled Land Where improvements are effected under the Settled Act, 1882. Land Act, 1882 (z), and the tenant for life, or any successor having a limited interest, is obliged to insure the same under sec. 28 (i), it would seem that incase suchimprovements were damaged by fire, such tenant for life, or successor, could not pay the proceeds of an insur- {y) Beynard v. Arnold, 10 Oh, App. 386, 23 W. R. 804. (z) 45, 46 Vict. 0. 38. MORTGAGE. 2/5 ance on sucli improvements to a mortgagee thereof with- insurance on out becoming liable to the remainderman, sec. 28 (5). L^fp™"*' mortgagee. And where a lessee insured in pursuance of his Mortgagee of covenant in his lease, it would seem that the mortgagee not TntHied to of the leasehold interest could not claim the proceeds policy money, of the policy (a) as against the lessor. Besides those cases in which either the insurance has been effected without any stipulation between the parties, or to supplement a default by the mortgagor, questions arise as to the proceeds of policies effected under con- tract. Where lessor or lessee covenants to repair, the other Right to pro- of them would have no claim on a fire policy taken where rave-^' out for the purpose of protection against liability to broken" ^^^'^^^ repair in case of fire (&), but it would be different in case of a covenant to insure; and in Garden v. Ingram (c) Covenant to a lessee under covenant to insure and apply the pro- '°°^'^^- ceeds of the policy in reinstatement mortgaged, the mortgage deed containing no covenant as to insurance. A policy was on foot in accordance with the lease when a fire happened. The mortgagee assigned his interest with benefit of policy. The Lord Chancellor decided that the mortgagor could not claim a lien upon the policy for money expended by him voluntarily in reinstatement, as both insurance ofiSce and lessor could insist upon the policy moneys being wholly expended on reinstatement. He decided further, that since the object of the insurance was reinstatement, the mort- gagor could not claim the policy moneys as against the mortgagee so as to defeat that object ; and that such being the original destination of the money, and the lessee being powerless to prevent reinstatement, it was immaterial to decide whether the benefit of the policy passed to the mortgagee's vendee. {a) 44, '45 Vict. 0.41, 8,23(4), butseeCcwtZcrev./wjrriOTre, 23 L. J.Ch.274. (4) Brown v. Q,uUter,"2 Eden 210, Amb. 619. Leeda v. Oheetham, I Sim. 146, 5 L. J. 0.;S. Oh. 105. (c)^23 L, J._Ch. 478. 276 THE LAWS OF INSURANCE. The mortgagee had exercised his power of sale with benefit of policy, so that the lessee's interest in the premises had ceased. This was held not to affect the validity of the policy, inasmuch as the lessor's interest in the premises continued, but to deprive the lessee of all benefit of the indemnity promised by the policy, since he had not the property in respect of which it was to be given. In a very recent American case, where a mortgage contained a covenant by the mort- gagor to insure, and the purchaser of the equity of re- demption obtained by his agent a policy payable in case of loss to the mortgagee, the latter was held entitled to the proceeds under the circumstances of the case (d). This case enables the mortgagee not to appropriate the proceeds of the lessee's policy, but to insist on its being used according to the covenant. In the particular case the mortgagee's vendee had become by conveyance the actual lessee. Now, however, the whole difficulty has been set at rest by sec. 23 (4) of the Conveyancing Act, 1 88 1 (e). No right of This section also covers LeesY. Whiteley, 2 Eq. 149, under bill of i^ which case a bill-of-sale holder, who had stipulated sale. .fQj, insurance but not for appropriation of the policy moneys to the debt, was held to have no equity to receive the proceeds of the policy as against the assignees of the grantor, who had become bankrupt. Kindersley, V.-O., declined to import any term into the contract, or to imply it from the nature of the stipulation therein contained. A bill of sale on chattels does not, as would a mortgage on realty, give the holder any right to insist on reinstatement (/). Mortgagee As a mortgagee may now be compelled to transfer traJfatOT ° Jiis mortgage in lieu of reconveyance {g), a question instead of reconvey. (d) Reid v. M'Crum, 91 N. Y. 412. (e) See Marriage v. Royal Exchange Assurance, 18 L. J. Ch. 216. (/) Ex parte Goreley, 4 Be G. J. & S. 477, 34 L. J. (Bky.) i, II L. T. N. S. 319, 13 W. R. 60, 10 Jur. N. S. 1085. * •" ' ig) Conveyancing Act, i88l, 44, 45 Vio. 0. 41, § 15. MORTGAGE. 277 may arise as to an insurance effected in his name, in pursuance of the statutory powers given by ss. 19,23 of the Conveyancing Act, 1 8 8 1 . Since the premiums in respect of such insurance are to be a charge on the mortgaged property in addition to the mortgage money, with the same priority and at the same interest QC), it would seem that the mortgagor could compel the mortgagee to do all things necessary to obtain the assent of the insurers to a transfer of the policy with the mortgage, and the result would seem to be the same if the mortgagee transferred of his own accord instead of at the request of the mortgagor, since the effect of the premiums being so charged on the property is virtually to make the policy a part of the security. The position of the insurers is not altered by the Act. They could not, before or after it, be compelled to assent to a transfer. Where mortgagor and mortgagee effect a joint Joint insurance on the mortgaged estate, neither can apply mortgagor and the proceeds of the insurance, which is a joint security, mortgagee, irrespectively of the claims of the other. Thus the assignees in bankruptcy of a mortgagee who had received the proceeds of a joint policy were ordered to pay them into the Court of Chancery, although they had already been paid into the mortgagor's account in bankruptcy (i). Nevertheless, in the case of a joint insurance the Eeoeipt of one receipt of the one who had the policy would be a sufficient discharge to the insurance company (J) ; and Lord Denman said (/<;), " The covenant to insure in the names of three persons is not complied with by insuring in the names of those three and another ; that other party may receive the money from the insurance (A) § 19. (i) Regers v. Orazebrodke, 12 Sim. 557. (j) 2 Eol. Abr. 410 CD.) pt. I, 5. [k) Penwiall v. Em-borne, 12 Jur. 161, 17 L. J, Q. B. 94, 11 Q. B. 368. 278 THE LAWS OF INSURAl^CE. Power to charge premiums against the mortgagor. Principle of decision. company in case of fire, or he may release an action brought to recover the amount." Premiums paid by the mortgagee to insure the mortgaged property against fire will not be allowed to the mortgagee in his account, and cannot be charged on the mortgaged property except by express contract in that behalf, or in virtue of statutory powers (I). This is so even where the mortgagor has covenanted to insure and the mortgagee has paid the premium on his default. In such a case the mortgagee cannot add the premiums so paid to his mortgage debt as against a subsequent incumbrancer (m). The principle upon which the decisions cited go is that if the mortgagee insures for his own benefit, and is not liable to account for the proceeds of his policy in case of a loss, he cannot debit the mortgagor with the premiums. Consequently, where the insurance is When authorised by the mortgagor, or in the mortgage deed, Siarge^^*™^^^^'^ is for the mortgagor's benefit, the mortgagee will premiums. ]jq entitled to his premiums, in account or otherwise, even where the policy effected by him does not actually conform to the terms of the deed (n). These rules of law apply only to such mortgages, if any, as were effected before the 28th August i860, when Lord Oranworth's Act came into operation (0). All mortgage deeds executed between that date and December 31, 1882, both inclusive, come within the provision of that Act. This Act is now repealed by Conveyancing Act, 1 8 8 1 , s. 7 1 ( i), but by sec. 7 1 (2) its benefits are saved for instruments executed before the (I) Dobson V. Zand, 8 Ha. 216, 19 L. J. Ch. 484, 14 Jur. part ii. 221. Bellamy v. Brickenden, 2 J. & H. 137, 32 Beav. 434, 44, 45 Vict. 0. 41, B. 19 (ii.) (m) BrooTce v. Stone, 34 L. J. Ch. 250, 12 L. T. N. S. 114, 13 W. E. 401. But see Scholefield v. Lockwood, 33 L. J. Ch. 106, 9 Jur. N. S. 738, 1258, II W. B. 555, where Lord Romilly allowed them, as mort- gagor was under covenant to insure, 8 L. T. N. S. 409. (m) Dobson v. Land, 4 De G. & S. 575, supra. (0) 23, 24 Vict. 0. 14s, 68. II, 32, 34. MORTGAGE. 279 commencement of the Conveyancing Act, i88i, the provisions whereof as to mortgages only apply to deeds executed after December 31, 1882 {f). By Lord Cranworth's Act (s. 11) the mortgagee is, Effect of ■ 1 , ^ 1 . . . ,1 , . Cranworth's as an incident 01 his mortgage, given the power to insure Act, and and keep insured against fire the whole or any part of Aot^^ssi""^ the property mortgaged, whether affixed to the freehold or not, which is in its nature insurable, and to add the premiums paid for any such insurance to the principal money secured at the same rate of interest. But such power will only take effect or be exercisable in the absence of an express declaration to the contrary in the mortgage deed, and maybe made to take effect subject to any variations and limitations contained therein, s. 3 2. The provisions of the Act seem to apply only to deeds executed after its passing (s. 43) {g). The provisions of the Conveyancing Act, 188 1, as to insurances upon mortgaged property are similar to those of Lord Cranworth's Act, but more comprehensive, especially in its provisions as to the application of the insurance money (r). Though where a mortgagee insures his debt on his Subrogation of own account, the mortgagor has no claim on the pro- mortgagee's ceeds of such a policy, the insurer, it would seem, is SfuJedf^'^"^* entitled to be put into the mortgagee's place as to the mortgage debt if he pays the loss ; and conversely, if the mortgagee is paid by the mortgagor after loss, but before action against insurer is concluded, he cannot recover on the policy. And if after payment on the policy he recovers, whether by suit or otherwise, the mortgage money, he must refund to the insurer so much of his total receipts from both mortgagor and (p) Williams' Eeal Property (13th ed.), 454, note. (q) See, however, sec. 24. Williams' Real Property, 454, considers the Act to apply only to deeds executed after its commencement, and so does Bunyon, Pire, 195, in spite of this section. (r) Sec. 19 (2). 28o THE LAWS OF INStJRANCE. insurer as is in excess of his actual loss by the fire. This all follows from the principle that insurance is a contract of full indemnity and no more (s). Separate TJie existence of an insurance by the mortefasree on policies by . ™ , . . mortgagor and his own account would in no way affect the validity of or gagee. ^^ insurance by the mortgagor on his interest. In case of a loss, the policies being on different interests, the insurers would not be entitled to contribution inter se (t), and the mortgagor's insurer would have to pay in full to his assured. When mort- It may be that as under sec. 23 (4) of the Oonveyanc- bepaidout°of iiig -A-ct, 1 88 1, the mortgagee is entitled to make the poUcy''^"'^ ^ mortgagor, out of the proceeds of any insurance effected by him for which no other destination is provided by Subrogation of law Or special contract, pay off the mortgage debt, so Ssurer^aa* ^^^° *^® mortgagee's insurer would, under Casiellain v. against ^ Preston, be enabled to press his claim to the mortgagor's insurance. policy, even if not effected in pursuance of a covenant to do so. Mortgagor not Where a mortgagee insures his own mortgage mortgagee's interest in the property comprised in his security, insurance. intending only to cover himself, the mortgagor is not entitled to benefit by such a policy. Mortgagee's The mortgagee's insurer would, if the property were subTOg^ated to destroyed, be bound to pay the money to the mortgagee, rights under ^nd would probably, by analogy to the principle of mortgagedeed. ^ . ^ ,.•"''.,, °'' , -,,■,• underwriters being entitled to the vendees hen, as (s) Per Gibson, J. Smith v. Culumbia, 17 Penn. at 261 fully. And Castdlain v. Preston, 31 W. R. 557, II Q. B. D. 380, 52 L. J. Q. B. 366, 49 L. T. N. S. 29. King -v. State Mutual, 61 Mass. i (7 Gushing), holds the insurer's right to be only equitable, if any, and only to arise when mortgagee recovers. But this decision goes on narrower grounds than the others cited. A claim for assignment of securities was made in Scottish Amicable Assurance v. Northern, 21 Scot. Law Reporter, 189, il C. S. 0. (4th series) 287. ({) North Biitish, die. Co. v. Zondon, Liverpool, and Gloie, S Oh. D. 569, 36 L. T. N. S. 629, 46 L. J. Oh. 537. MORTGAGE. 28 1 suggested by Bowen, L. J., in Castellain v. Preston (u), be entitled to the benefit of the mortgagee's security ; or if the view of that learned judge go too far, would certainly be entitled, if the mortgagee subsequently enforced his mortgage security, to repayment of the surplus realised thereby in excess of the mortgage debt. Where the mortgagor has insured in pursuance of Effect of his covenant to insure, and the mortgagee has also mortgagor'rad insured the same estate in a different office, the two mortgagee in offices would apportion the amount of the insurance, oflBoes. and thus the mortgagor would sustain a loss equal to the difference between the amount for which he insured and the apportioned sum received by him. By the principle, however, laid down in JReynard v. Arnold (v), the mortgagor would be entitled to recover from the mortgagee such difference. Conversely, if the mort- gagor, by effecting insurance in addition to the amount covenanted for in the mortgage deed, and by the effect of contribution between the two insurers, the amount receivable on the mortgagee's policy is made less than the actual damage done, the mortgagor must account to the mortgagee pro tanto as to the benefit gained by him on the other policy (w). The mortgagee has as an incident of his power to Eecejver appoint a receiver of the rents and profits of mortgaged mortgagee ^ property, a right to direct such receiver to effect ™*y ®*^®°* r 1 J 1 o ^ insurance. insurances on the said property, and the premiums on such insurances are payable out of the income of the mortgaged property after the rents, taxes, and out- goings, and the interest on mortgages prior to that under which he is receiver (x). A mortgagee who receives the proceeds of an when mortgagee not bound to (u) II Q. B. D. at 405, S3 L. J. Q. B. 366, 49 L. T. N. S. 29, 31 W. B. 557, see also Thesiger, L. J., in Darrell v. Tibbetts, 5 Q. B. D. 568, 50 L. J. Q. B. 33, 42 L. T. N. S. 797, 29 W. R. 66. (v) 10 Ch. App. 386, 23 W. R. 804. (w) Ames v. Bichmdson, 29 Minnesota, 29. (») 1881, § 24. 282 THE LAWS OF INSURANCE. account to insurance efl'ected by himself not under tlie provisions mortgagor tor r- , i . , . . policy money. 01 the Act, or the mortgage deed is not liable to account to the mortgagor for such proceeds, nor can the mort- gagor plead receipt of such proceeds as satisfaction of the mortgage debt in an action upon the mortgagor's covenant in the deed, the latter is in the position of a tenant under a repairing covenant, whose house is destroyed, and who has not insured while the landlord has done so (y). Mortgagee may recover on his policy and also from mortgagor, but only to the amount of the mortgage debt. - Doctrine of subrogation generally. But though the mortgagee by recovery from insurer on his own policy is not disentitled to an action against the mortgagor, any sum recovered by him from the latter, which, together with the sum received from the insurer, exceeds the whole amount of the mortgage debt, will belong to the insurer, and the mortgagee would be trustee for the insurer of such surplus (2). " The doctrine is well established, that where something is insured against loss, either in a marine or in a fire policy, after the assured has been paid by the insurers for the loss, the insurers are put into the place of the assured with regard to every right given him by the law respecting the subject-matter insured, and with regard to every contract which touches the subject-matter insured, and which contract is affected by the loss or the safety of the subject-matter insured by reason of the peril insured against " (a). The effect of this principle is that the insurers on payment would step into the shoes of the mortgagee and have all his rights against the residue of the mortgaged property and the mortgagor. It seems, by parity of reasoning, that subrogation would arise where an action for negligence lay for negli- gent destruction or damage of the mortgaged premises (J). (2^) Dan-dl v. Tibbetts, S Q. B. D. 562, 50 L. J. Q. B. 33, 42 L. T. N. S. 797, 29 W. R. 66. (s) Per Jessel, M. R., Commercial Union v. Lister, 43 L. J. Ch. 602, 9 Ch. App. 483. (a) Per Brett, L. J., in Darrdi v. Tibletts, 5 Q. B. D. at p. 563. (6) Commercial Union v. Lister, 9 Oh. Ap. 483, 43 L. J. Oh. 601. MORTGAGE. 283 In practice there ia little doubt that the mortgagee would give the mortgagor the benefit of the policy on his consenting to include the premiums as part of the mortgage debt, but this consent would not bind the insurers. No case has yet occurred of an insurer proceeding against a mortgagor under the above circumstances in exercise of his subrogated rights. And it is unlikely that the insurers would make any claim against the mortgagor, since such claim would not conduce to their prosperity in business, though they might, on the principle of Castellain v. Preston (c), make the mortgagor hand over anything received by him in excess of his mortgage debt in action upon the covenant to pay the mortgage debt, or probably release to the mortgagor their rights of subrogation to the mortgagee's claims under the mortgage deed on his mortgage. It would seem that, if such a release were given, it might be, on his mortgage, made available as defence to an action on the covenant by the mortgagee. Where both mortgagee and mortgagor have insured Contribution . 1 . .,, , . -i 1 T i where separate separately, as may still happen in equitable mortgages, insurances ^y the insurers usually insist on contribution. This is not mortla^ee^'''^ strictly correct, as the interests insured are different; but it is clear that if both are allowed to recover, one must profit by the fire if the sum of the policies exceed the value of the property. Strictly speaking, the proper course would be for the mortgagee's insurer to pay in full, and proceed against the mortgagor for the amount paid. The mortgagor would be entitled to retain any balance on the proceeds of his own policy as the value of his equity of redemption. But the offices prefer to treat each other as co-insurers in such a case. And the Conveyancing Act has made, as between mortgagor and mortgagee, insurance practically run (c) Reported II Q. B. D. 380, 52 L. J. Q. B. 366, 49 L. T. N. S. 29, 31 W. B. SS7- 284 THE LAWS OF mSURANCE. with the land, as had been held by James, L. J., should be the case (d). fiMehofr °* '^^^ mortgagee of a leasehold interest, who is not in could not be possession, could not before the Conveyancing Act, 1 8 8 1 , forfeiture'"^* ^® heard on an application for relief against forfeiture 1881; itia ' lessee's covenant to insure (e) in lessor's action against since the Act. *^^ lessee, and cannot be made a party to the action of ejectment under Or. 16, r. 13, J. A. 1875; and it was said by Lush, J., that if the mortgagee had any equity he must pursue it as a suitor. But in sec. 14 of the Conveyancing Act, 188 1, the word "lessee" includes his assignee, and therefore a mortgagee by assignment of leaseholds could in the landlord's action or one brought by himself apply for relief against such a forfeiture, and the Judicature Act and rules enable him to come for relief even after judgment (/). In mortgage deeds to be made under the present law, a covenant to insure against fire is scarcely needed (g). (d) Rayner v. Preston, 18 Oh. D. I, 50 L. J. Ch. 472, 44 L. T. N. S. 787, 29 W. R. S47. (e) Mills V. Griffiths, 45 L. J. Q. B. 771. (/) Jacques v. ITarrison, 12 Q.J,B. T>. 165. (g) Davidson's P. Conv. 195. ( 285 ) CHAPTEE XVI. FIEE POLICIES AND ASSIGNMENT. If the assignment of property insured against fire Rights of be total, the assignor cannot recover on the policy for assignee to himself, as his interest on the property will have ceased. 5°^?°^ ^**" . property. If the assignment be partial, he can recover for his own benefit only to the extent of his remaining interest. The assignee of property insured against fire can recover nothing under a policy effected by the assignor, unless — (i.) It was part of the contract between the assignor and assignee that the latter should have the benefit of the policy as between assignor and himself. (2.) The office consented to hold the assignee assured either by the terms of the policy (a), or on notice of the intention to assign before transfer of the property. (3). If the policy expresses that the consent of the office will be given in any particular form, that form must be strictly complied with. Nor can a vendor recover on his policy for the benefit of the purchaser after he has been paid the purchase money in full, though he has not conveyed, and even if it be part of the contract of sale that the vendor shall keep alive the policies for the benefit of the purchaser, and assign (a) New South Wales Bank v. Commercial Union, No. 2, 3 N. S. W. Law 60., 286 THE LAWS OF EfSCBAXCE. tliem to the purchaser (&). Uader such a coatracb, however, the vendor would be bound to get the insurer's consent, if he could, to the transfer, or to effect a new pohcy for the purchaee/s benefit, and would be liable for neglect to do so. Atngaainliij Policies of insurance are choses in action, giving ° ^ ■ as they do the right to proceed in a court of law to recover the money thereby contracted to be paid (c). " A policy certainly must be transferred, for though a ch(»e in action cannot in law be assigned, yet in equity it may ; therefore we will permit the action to be brought by the trustees " (d). J'otaex'a The mie in equity that choses in action are assign- neeetsary to able does not, however, apply to every form of policy, ^^^"*** For it seems universally to have been held that fire policies are personal contracts (e), and that the consent of the insurers is necessary to the assignment thereof; while marine policies have always been asngnable with their subject-matter (/), and life policies have been treated as reversionary interests, and allowed to be assigned, charged, or otherwise dealt with (gi). The Judicature Act, 1 873, makes no change in this respect, merely providing a mode by which the assign, if any, of a chose in action, may perfect his legal title to sue thereon, instead of trusting to his equitable interest under the legal title of his assignor. AMgnment ot Insurers seem firom the earliest times of fire insur- fire pohoes. ^^^^ ^ j^^^ heesi careful to prevent fire ^Mdea from (6) Jfeie South Wales BarJ: -r. Omnureial Union, 3 X. a W. Iav6o (1882), wbet^a the En^Usb and American law vt folly and siAj diaaaeei, (e) JEqwrfe Ibbeteon, g Ch. D. 519, 39 L T. X. a I, 26 "W. E. 843. Id) Words naed in Detaag v. StoddaH, i X. B. 26 (1785), AUmrat, 3. Cnie etatoi^ dealing witii assignment of life and marine policies do ntA gire tiie rig^ tc> aaagfi, bnt pieambe a mode of aasigmnent. {«) J/gMck r. Ddkdl, 4 Bro. P. C. 431 (1729). 8aMer^ Co. t. Badtodc, 2 Att. 554, 1 WiboB 10. Bayner t. Proton, 18 CSl D. i, Bieti^ Ii. J., 50L J. Ch. 472. 44 L T- >'• 8 787- (/) PdZm T. Itqgttae Co., 5 C. P. D. 34, 29 W. B. 547, 49 L. X C. P. 153, 42 L T. H. a 35, 28 W. E. 405. (^) Sec. 25, rabe. 6. FIBE POLICIES AND ASSIGNMENT. 287 being assigned without licence. But for special restrictions on assignment in the policy itself (upon which the old cases of Lynch v. Dahdl (Ji) and Sadlers' Co. V. Badcock (/) seem to go), there is no apparent reason why a fire policy should not be assignable with the subject-matter thereof as readily as a marine policy has always been, except that in land-risks, where the subject-matter is usually within the control of the assured, his personal character is of more importance than in sea-risks, where the goods, &c., from the moment that they go to sea, are out of his reach. The contract of fire insurance being a contract of K vendor of . 1 • , ■ , » , 1 1 chattels sell indemnity, no one can recover m respect 01 the loss before the loss who is not interested in the ' subject-matter of the rec^r on insurance at the time such loss occurs. Therefore, if policy- a person assigns away his interest in a ship or goods after effecting a policy of insurance upon them, and before the loss, he cannot recover the insurance money from the insurers for his own benefit (Z) ; " and on the sale of a thing insured, no interest in the policy passes Vendee has no to the vendee unless at the time of the sale the policy policy unless be assigned either expressly or impliedly " (J). *>' aasignment. If, however, the poHcy was actually assigned or handed over to the vendee, or if there was a stipulation that the vendor should assign it to or keep it ahve for the benefit of the vendee, the latter would be entitled to the policy money on the loss occurring. The assignment, however, by the vendor, or its equivalent, must be made or take place before the property has actually passed from the vendor to the vendee ; for an assignment made after the interest of the vendor in the subject-matter of the insurance has (A) 4 Bro. P. C. 431- (i) 2 Atk. SS4- See Mialiv. Western Insurance Co., 19 TT. C. (C. P.) 270. (i-) Powlea V. Itmes, II M. & W. 10, 12 L. J. Er. 163. (I) North of England Oilcake Co. v. Archangd, iior a negotiable instrument (0). The legal title to a policy of life assurance can be obtained by assignment in accordance with the Policies of Life Assurance Act, or sec. 25, sub-sec. 6, of the Judicature Act, 1873. An assignment upon trust may be an absolute assignment within the latter Act, and the assignee under such an assignment can give a good dis- charge for the policy moneys (p). Donatio mortis A life policy has been held a proper subject of dona- tio mortis causd (q) on account of its analogy to a bond. And it would seem that trover cannot be main- tained for it by the executor or administrator of the assured (q), if the latter has given it away without writing during his lifetime (r) ; but on the other hand, a person to whom it has simply been handed without writing by the assured cannot recover from the assurers thereon (s). If the executor or administrator has sub- sequently regained possession of it, he can give a good discharge to the insurers, but not otherwise (t). Gift of life Where a man effected an insurance on his own life retention of but in his daughter's name, and paid the premiums him- same by donor, ggjf^ though he retained the policy in his own posses- sion, it was held a complete gift to his daughter, and (m) Brice v. Bannister, 3 Q. B. D. 569, 38 L. T. N. S. 739, 26 W. R. 670, («) Bxpa/rte Ibbetson, 8 Ch. D. 519, 39 L. T. N. S. i, z6 W. R. 843. (0) Strachan v. M'Bougle, 1835, 13 C. S. 0. (ist series) 954. United Kingdom Life v. Bixon (1838), 16 C. S. 0. (ist series) 1277. (p) Burberson v. B'all, 12 Q. B. D. 347. (j) Witt V. Amis, ubi gup. note {k). (»•) Bummens v. Hare, i Ex. D. (C.A.) 169, 34 L. T. N. S. 407, 24 W. R. 385. Barton v. Gainer, 3 H. & N. 387, 27 L. J. Ex. 390, 6 W. R. 624. (i) Howes V. Prudential, 49 L. T. N. S. 133. O'Hara's Tontine, 30 L. T. 128, 3 Jur. N. S. 1145, 6 W. R. 45. (<) Conway v. Britannia Co., 8 Lr. Can. Jur. 162. Dispositions of life policies. 297 * on his death she was held entitled to the insurance money {u). In this case a policy of life assurance was effected by a man on his own life, but in his daughter's name, and up to the time of his death he retained the poKcy in his own possession and paid all the premiums himself from time to time, except the last, which was, through his want of funds, paid by his son. There was no mention of the policy in the will of the assured ; but he communicated the fact of the insurance to his daughter, and gave her to understand that it was for her benefit. Kay, J., said " that the legal right to call upon the office to pay was clearly in the daughter, and not in the executor, the contract of the assurance company having been to pay her. That she was the daughter was sufficient to raise a presumption that the advance was to her, and the only thing that could be relied on to rebut this presumption of advancement was the fact that the father kept the policy in his own hands. But that was not sufficient. The mere retention of the policy did not show that the beneficial interest also was not intended to pass to her. Thus the gift of the policy to the daughter was a complete one, for the legal and the beneficial interest were vested in her." Accordingly she was entitled to receive the sum assured. In Fortescue v. Barnett (v), the assured made a voluntary assignment by deed of a policy upon his own life to trustees, for the benefit of his sister and her children if she or they should outlive him. The deed was delivered to one of the trustees, and the grantor kept the policy in his own possession. No notice of the assignment was given to the insurance office, and the assured afterwards surrendered for a valuable consideration the policy and a bonus declared upon it to the insurance office ; and the court held that (m) Weston v. Richardson, 47 L. T. N. S. 514- [v) Fortescue v. Barnett, 3 M. & K. 36, 2 L. J. N, S. Oh. 98. Sewell V. King, 14 Oh. D. 179, 28 W. R. 344. 298 THE LAWS OF INSURANCE. Assignment, how made. Assignee may sue in own name. upon the delivery of the deed no act remained to be done by the grantor to give effect to the assignment of the policy, and that he was bound to give security to the amount of the value of the policy assured by the deed. The Master of the EoUs said, "The gift of the policy appears to me to have been perfectly com- plete without delivery. Nothing remained to be done by the grantor, nor could he have done what he after- wards did to defeat his own grant if the trustees had given notice of the assignment to the insurance office. I am of opinion that no act remained to be done to complete the title of the trustees. The trustees ought to have given notice of the assignment, but their omis- sion to give notice cannot affect the cestius que trust." No particular words are necessary to constitute an equitable assignment of a policy of life assurance if the intention- be clear ; and such an assignment may even be created by word of mouth, and an equitable mort- gage may also be created by the deposit of a policy of assurance so as to entitle the depositee to the moneys assured (x). To perfect the title of the mortgagee of a policy, notice in writing should be given to the insurance office of the assignment, otherwise a subsequent assignee for value might, by first giving notice, obtain priority (?/). The Policies of Assurance Act, 1867 (e), gives the right to sue in their own names to any person or corporation entitled by assignment or other derivative title, and possessing at the time of action brought the right in equity, to receive and give an effectual dis- charge for the policy moneys. (x) Row V. Dawson, i Ves. Sen. 331. Gurnell v. Oardner, 4 Giff 626- 680, 9 L. T. N. S. 367, 12 W. K. 67. (y) 30. 31 "Vict. 0. 144, d. 3, Judicature Act, 1873, s. 25, sub-s. 6. Swayne v. Swayne, II Beav. 463. l^ttey v. Bridges, 2 Y. &; 0. (Chano.) 486, re Barrls Trusts, 4 K. & J. 219, 6 W. E. 424. (s) 30, 31 Vict. c. 144, a. I. DISPOSITIONS OF LIFE POLICIES. 299 The effect of this Act is Bot to make life policies Policies of more or less assignable than before; it only enables jg^s",'^*''''^ ■*■"*' the assignee to sue in his own name without having to AssignabUity. use the name of the assignor, and protects the insurance offices by making notice of assignment necessary. In the words of Lord Bramwell with respect to 31, 32 Vict. c. 86 (a similar Act as to marine policies), " With- out the aid of the statute, the assign might have sued at law in the name of the assured and in a court of equity in his own name. The statute was passed to give the assign a more convenient remedy. No alteration in the rights of the parties was contemplated " (a). Notice of assignment of a life policy to an agent of Notioeof the company is not, under the present law, sufficient to ^^^'g°™«»*' vest the legal title in the assignee (p). Under the old ^'^^• law it might be enough if the agent was not forbidden by the insurers to receive such notice (c). Fire policies are in a different position, not being of the same nature as life policies, nor included in the pro- visions of the Policies of Life Assurance (1867) Act (d). The law as to order and disposition is not the same in Ireland, to which country the Bankruptcy Acts of 1869 and 1883 have not yet been extended (e). But the Policies of Life Assurance Act applies to the whole of the United Kingdom, and the assignee of a policy can thereby perfect his legal title by the same pro- cedure in any part thereof. By sec. 3 of the Act (/ ) it is provided that no Effect of assignment cf policy under the Act. (a) Fellas v. Neptune Co., 5 0. P. D. 34, 49 L. J. C. P. 153 42 L. T. N. S. 35, 28 W. R. 405. (6) 30, 31 Vict. c. 144, SB. 3, 4. (c) Gale V. Lewis, 9 Q. B. 730, 16 L. J. Q. B. 119. {d) Exparte Hcnnessy, i Connor and Lawson, Jr. 559. (e) Re Russell, I Or. & D. (Ir.) 27. Re Armstrong and Byrne, I Or. &D. (Ir.) 37- (/) 30, 31 Vict. 0. 144. 300 THE LAWS OP INSURANCE. assignment made after the passing of the Act of a policy of life assurance shall confer on the assignor, his executors, administrators, or assigns, any right to sue for the amount of such policy until a written notice of the date and purport of such assignment shall have been given to the assurance company at their principal place of business, or one of their principal places of business, in England or Scotland or Ireland ; and the date on which such notice shall be received shall regulate the priority of all claims under any assignment ; and a payment honajide made by the com- pany before the date on which such notice shall have been received by the company shall be as valid against the assignee as if the Act had not passed. Notice of. The notice required by this section C'l) should be assignment. . ■ .1 / . . "li given even m the case oi a mortgage to the company itself, in order to avoid any contention as to whether the requirements of the section upon which the priority of claims is made dependent have been complied with (g). Principal place Every insurance company must on every policy of business to .pji* ••ii ^ _pi' j. be on policy, speciiy their principal place or places 01 business at which notice of an assignment may be given (sec. 4). Form of Any assignment may be made, either by endorse- assignmen . -j^q^^ q^ i}^q policy or by a separate instrument in the form given in the schedule to the Act sec. (5). Company to Every insurance company is bound, upon the request acknowledge . .j . „ - , , t ,_• receipt of m writing 01 any person by whom any such notice was notice. given or issued, or of his executors or administrators, and upon payment of five shillings, to deliver an acknowledgment in writing of their receipt of such notice ; and every such acknowledgment, if signed by a person who is de facto or de jure the manager. {g) Davidson's Precedents, vol. 2, part 2, p. 522. DISPOSITIONS OF LIFE POLICIES. 301 secretary, treasurer, or other principal officer of the company, shall be conclusive evidence of the company having duly received such notice (sec. 6). There should be no delay in giving notice of assign- Notice of ment of a policy of insurance, for on the absence of ghouf "be' notice, if the insurance company paid the policy money s'^^" ^^ °'^<=^' to the assignor of the policy, or his legal personal repre- sentative, without knowledge of the assignment, they could not be made to pay the money again (h), and the assignment might be defeated by the assignor surrender- ing the policy or the bonuses to the office (i). No person should take an assignment of a policy Enquiry as to of insurance without first enquiring of the Insurance notice."' Company whether they have previously received notice of any assignment, charge or lien, thereupon. When the notice has been given to the proper person, he cannot disregard it without making himself liable to the assignee (/). If he made, even though unin- tentionally, a false representation to an intending assignee as to previous notice, he is personally liable for the loss such assignee may sustain (k). By the Judicature Act, 1873, sec. 2 5, sub sec. 6, any Assignment absolute assignment in writing, not purporting to be by judicature way of charge only of any legal chose in action of which ■*■'''■ express notice in writing has been given to the person from whom the assignor would have been entitled to receive the same, will pass the legal right and power to give a good discharge for the same without the con- currence of the assignor. This provision extends to (A) Jones v. Oibbons, 9 Ves. 407, 410. (i) Fortescue v. Barnett, 3 M. & R. 36, 2 L. J. N. S. Ch. 98. Stocks V. Doison, 17 Jur. 223, 22 L. J. Oh. 884. (J) Williams v. Thorp, 2 Sim. 257. Baldwin v. BilUngsleil, 2 Vern. 539. Boberts v. Lloyd, 2 Beav. 376. Andrews v. Bousfield, 10 Beav. 511. (k) Lyde v. Barnard, I M. & W. loi. Swan v. PhiUips, 3 N. & P. 447. Burrows v. Lock, 10 Ves. 470. Ramshire v. Bolton, L. R. 8 Eq. 294, 38 L. J. Ch. 594, 21 L. T. N. S. so, 17 W. R. 986. 302 THE LAWS OF mSUKANCE. the assignment of a policy of assurance which is a chose in action (I), It is in one respect narrower than the provision contained in the Policies of Assurance Act, 1867, inasmuch as it is limited to absolute assignments only, whilst the Policies of Assurance Act extends to assignments which are absolute as well as to assign- ments by way of charge. In another respect, however, the provision of the Judicature Act is wider than that of the Policies of Assurance Act, because it extends to "any legal chose in action," and therefore to all policies. The Policies of Insurance Act, on the other hand, extends only to policies granted by a corporation, association, society, or company (m). "What is not j^n agreement in writing, without delivery of the ail assignment mi within Policy policy, to execute on request an effectual mortgage of Act ^Te™"^ ^ lif^ policy as security for a loan, is not an assignment within the meaning of the Policies of Assurance Act, 1 867. Consequently notice to the assurance company of such agreement gave no priority over a prior equitable mortgagee who had given no notice, but who had pos- session of the policy (n). It has been held in America that delivery of the policy itself is necessary (inter alia) to constitute an assignment (0), but this does not seem to be the rule in England (^). Deposit of policies with a creditor as security, coupled with a request by letter to him to instruct his solicitor to prepare the necessary assignment, is not an equitable assignment within the Policies of Assurance Act, 1867 (30, 3 1 Vict. c. 144). Consequently written notice to the company will not in such a case be enough to enable the depositee to give the insurer an effectual discharge. Jessel, M.E., said, "No consideration was stated, and (I) Exparte Ibbetson, 8 Ch. D. 519, 39 L. T. N. S. I, 26 W. R. 843. (m) 30, 31 Viet. 0. 144, s. 7. (») Spencer v. Clarice, 9 Ch. D. 137, 47 L. J. Ch. 692, 27 W. E. 133. (0) See Palmer v. Merrill, 60 Mass. 6 Gushing, 282. But see Bliss, Life Insurance, p. J 1 1, note i. (p) .Kekemnch v. Manning, i De G. M. & Gt. 176, 21 L. J. Ch. 577. Ward V. Audl(ii,n,d, 8 Sim. 571, C. P. Cooper 146, 8 Beav. 201. DISPOSITIONS OF LIFE POLICIES. 303 there was no agreement to assign. There had been a deposit, and there was to be an assignment only if the plaintiff (the mortgagee) thought fit. For some reason or other, he did not choose to take the assignment, but was content to rely on the deposit" (q). The court, however, considering that sufficient proof had been given that the money was really due to the mortgagee, dis- pensed with the executors of the mortgagor (by i 5, 16 Vict. c. 86, s. 44) (?-). But it was doubted by the Court of Appeal whether this course was admissible (s). A covenant to effect a policy by way of security is Equitable not enough of itself to vest the policy in ^jI^q ^s^'S"™^"*- covenantee (t) ; it does not seem to operate as an equitable assignment thereof, or to give him a lien thereon. But in Ward v. Ward, 18 Jur. 539, 1834, a covenant by a defaulting trustee to effect a policy on his own life was held to entitle the cestuis que trustent to the proceeds against his creditors. Mere deposit of a policy with a creditor as security. Bare deposit notice whereof was given to the insurers after the ° ^° "'^' death of the assured, is not sufficient to entitle the creditor to demand payment from the insurance com- pany without the concurrence of the debtor's legal personal representative. And if the creditor makes good his claim, the Interest on insurers will not be liable to pay interest from the due (q) Crossley v. Oity of Glasgow Life, 4 Ch. D. 421, Jessel, M. R. 1876. 46 L. J. Oh. 65, 36 L. T. JSr. S. 285, 25 W. R. 264. ()•) Ibid. (s) See per Cotton and James, L. J. J. in Webster v. British Empire Mutual, 15 Ch. D. 169, 49 L. J. Ch. 769, 43 L. T. N. S. 229, 28 W. R. 818. But see also Ourtius v. Caledonian, 19 Ch. D. S34, SI L. J. Oh. 80, 30 W. R. 125, 45 L. T. N. S. 662. [t) Zees V. Wiitely, 2 Eq. 143, 35 L. J. Ch. 412, 14 L. T. N. S. 472, 14 W. R. 534. See, however, exparte Caldwell, 20 W. R. 363, 13 Eq. 188. 304 THE LAWS OF INSURANCE. Position of assignee no better than that of his assignor. date where the delay is owing to the creditor's neglect to clothe himself with the legal title to the money (u). The assignee of a policy will not be in any better position than the person who effected and assigned it to him (v). Thus B, at the instance of the agent of the British Equitable Insurance Company, proposed to insure his life, answered the questions as to his health satisfactorily, and mentioned D as his last medical attendant, and the medical ofScer of the company reporting favourably, the proposal was accepted, and a letter written, giving notice that the office would not be liable for any risk in consequence of a variation in health between the acceptance of the proposal and the actual receipt of the first premium. B becoming suddenly stout, was alarmed and consulted W, a physician, who told him he was in danger, and wrote to D to that effect. D taking a more favourable view, B then paid the first premium, and never communicated to the office his consultation with W ; and with the receipt for such premium was a letter expressing that if any alteration in health had occurred the policy would be void. B assigned the policy as security for a debt to the 0. of N. Eailway Oo. represented subsequently by the York Co., and died suddenly of disease of the heart, and a jury returned that verdict. An action was brought on the policy in the name of the widow ; and it was held that the non-communication by B to the office of the fact of his consulting W, although he was not bound to say what W told him, vitiated the policy, and that the defendants were in no better position than B. The assignee is liable to all the defences which the (m) Webster v. Sritish Empire Mutual, 15 Ch. D. 169, 0. A. 1880, uhi sup. {v) Dormay v. Borrodaile, 10 Beav. 335, 16 L. J. Ch. 337. British Equitalle v. Great Western Railway, 20 L. T. N. S. 422, 38 L. J. Ch. 314, 17 W. R. 43, 561. Anderson v. Fitzgerald, 4 H. L. C. 484, 17 Jur. 995, and Scottish Widows' Fund v. Buist, 3 C. S. 0. (4th series) 1078, S do. p. 64 (House of Lords). Policies of Assurance Act, 1867, s, 2. ^ea V. Dixon, 3 H. L. 0. 702, 1852. Purdew v. Jackson,! Ruaa. I. DISPOSITIONS OF LIFE POLICIES. 3OS insurers would be entitled to raise against tlie assignor ; for if the policy be affected by any vice in regard to the assignor, it is also similarly affected as regards the assignee. So if the assignor have effected the policy Policy effected by fraud practised against the insurer and subsequently i,fsurer can assigned, and the assignee be at the time ignorant of "^^^^"^^"^ '"""^y the fraud, and the insurer pays the assignee, both being in equal ignorance of the fraud, the insurer may recover from the assignee the money paid under such mistake (d). But if the notice of assignment given to the insurer Duty of discloses on the face of it that which induces the belief Jfno,^ing that the assignee has been deceived in accepting the assignee is ? . . , 1 . p 1 . deceived, assignment, the insurer is bound to miorm the assignee of the real circumstances ; and if he does not, he will be estopped from taking advantage of the equities between assignor and himself. This is a particular case of the rule in Mangles v. Dixon (3 H. L. 0. 702) (e). Where the health of the life grew worse between Aggravation of the acceptance of the risk and payment of the premium, aoceptaM*rof " but the aggravation of the illness was not disclosed to li^^ and pay- 1 T 1 T -I • • ^ -I ^ ment of the insurers, the policy was held vitiated, and bond fide premium, purchasers for value (/) without notice held to have purchaser. no title to recover thereon (^). If after a policy has been assigned the insurance Receipt of company become aware of objections to its validity so coSpanTafter clear and conclusive that the mere statement of them knowledge of . . mvahdity of is enough, there may be a duty 01 communication to assigned those whom the company know to be interested in the ^° ^'^^' (d) Lefevre v. Boyle, 1 L. J. N. S. K. B. 199, 3 B. & Ad. 877. (e) Scottish Widows' Fund v. Buist, 3 C. S. 0. (4th series) 1078, Inglis, L. P. (/) Tor precautions to be observed by purchasers or mortgagees of life policies, see 2 Dav. Preo. Con. pt. I, p. 654 note. (g) 1869, British Equitable v. Great Western Railway, 38 L. J. Ch. 314, 17 W. B. 561, 20 L. T. N. S. 422. Policies of Assurance Act, 1867, explained as not giving the assign a better title, but only as dispensing with administration where the assign had a complete title, 306 THE LAWS OF INSURANCE. policy. It would not be consistent with good faith that they should in such circumstances go on receiving the premiums on a policy that they intended to challenge in the end (K). In certain companies (mutual) the assignee of a policy, by payment of premiums, is held to have con- tracted to become a member of the company, and is liable to be entered on the register as a contributory ; but if the directors refuse to register the assignee as a member of the company, the court will in certain cases hold him not to have become a contributory (i). Assignment On the other hand, assignment before winding up of •winding up. such a company relieves the assignor (Jc). Payment into The Trustee Eelief Act, until extended by the 6th company sub-sec. of sec. 2 5 of the Judicature Act, 1873, did B^u^f A^rt*^^ not enable an insurance company, having notice of conflicting claims, to pay policy moneys into court, unless the moneys were the subject of a trust ; but inasmuch as by the Policies of Assurance Act, 1 867 (V), an unsatisfied mortgagee of a policy might sue the insurance office in his own name on his assignment, the insurance office would be justified in requiring evidence that an assignment by way of mortgage of which they had notice was satisfied before they paid over the money to a subsequent assignee of the policy (m). Validity of It does not' matter if the last assignment of which claim not notice has been given to the insurer is over twenty facTAh'of'time ye^rs old, for no demand can be made under it until between notice ^ of assignment and death of (^) Scottish Eguitable v. Buist, 4 0. S. C. (4th series), 1081-82, per assured. Lord President. (i) 1882, Sxpte Saunders, 20 Oh. D. 403, £1 L. J. Ch. 579, 47 L. T. N. S. 112. (4) 1881, Ea^te Brown, 18 Ch. D. 639, 50 L. J. Ch. 714, 45 L. T. N. S. 269, 30 W. B. 30. (1) 30, 31 Vict. 0. 144. (m.) Jie Haycock's policy, i Ch, D. 611, 45 L. J. Ch. 247, 24 W. R. 291. DISPOSITIONS OF LIFE POLICIES. 307 tte event happens in which the policy money is to become due. In Haycock's policy 24 years had elapsed between the assignment by way of mortgage and the death of the assured. The latter had subsequently to the mortgage assigned the policy to a third person, and he to the petitioners in that case. But absence of claim on the part of the mortgagee was not held to be any evidence that the claim had been satisfied, and no suggestion was made that it was barred. And the policy moneys were only paid out of court on the personal representative of the mortgagee disclaiming any interest therein. A contract to assign a life policy may be ordered Specific to be specifically performed (n). And under such a contract to contract, unless otherwise agreed, the assignment must ^^^s°- be free of incumbrances. So if a contract is made to jfiee from assign a policy, and the assignor had (unknown to the would-be assignee) agreed that one-third of the premiums should be a charge on the policy payable at his death, the burden of such charge must be satisfied by the assignor and not transferred to the assignee (0). Such contract passes all the benefits attached to the policies, such as bonuses, &c. {p) without further words. A policy effected on own life at an annual premium, Bankruptcy of on bankruptcy of the assured passes to his trustee, payment of however small be its apparent value at such date, and P'^^'niums by _ -i ■'^ _ ' assignee. even if there are considerable arrears of premium due thereon. If he disclaim, the grantee can do what he likes about it (cj). If the assured, instead of delivering up the policy as part of his effects, secretly assign it to another person, who pays the arrears of premium, and upon the death of the bankrupt receives the sum (n) Ashley v. Ashley, 3 Sim. 149. Godsall v. Webl, 2 Keen 99. (0) Oatayes v. Flather, 34 Beav. 387, Eomilly, M. R. 1865. {p) Courtney v. Fetrars, 1 Sim. 137, 5 L. J. N. S. Oh. 107. Parlces v, Bott, 9 Sim. 388. • (2) Be Learmonth, 14 W. R. 628, 308 THE LAWS OF INSURANCE. insured, this sum, less the amount of arrears so paid, may be recovered by the trustees in bankruptcy as money had and received to their use (r). So also if the bankrupt surrender the policy and procure renewal to one creditor in consideration of his accepting the composition offered (s). Covenant to If a policy be assigned with other property, that on foot. the latter assignment should be avoided, will not aifect the assignee's right to the policy {t). An assignment of a policy of assurance by the cestui que vie ought to contain an express covenant by him that he will not do anything to vitiate the policy or prevent the assignee from receiving the money. A covenant simply to do all things necessary to keep the Not troken by policy on foot is not broken by his suicide, although the covenantor. assignee will thereby lose the benefit of the policy (w). Covenant to " Such a covenant may practically prevent the foot^whether"" cestui que vie from proceeding to any British colony, or broken by even from leaving Europe; for most of the insurance offices make residence or travelling out of Europe vitiate a policy, and a Court of Equity will restrain a man from committing a breach of his own covenant. Permission to reside or travel abroad in healthy lati- tudes may, however, usually be obtained from the office on payment of an increased premium ; and a covenant to pay an increased premium, which may become payable in the event of the assignee allowing the (r) Schnndler v. Wace, l Camp. 486. See West v. Meid, 2 Hare 256, and Pennell v. Miller, 23 Beav. 172, 5 W. E. 215, 29 L. T. 35, where assignor had covenanted to keep up policies and assign had paid the premiums. See also Burridge v. Bow, i Y. & C. Ch. 0. 183, 583, 13 L. J. Ch, 173, 8 Jur. 299. Oonnedicut Mutual Life v. Burroughs, 34 Connecticut, 305. (s) Pfleger v. Browne, 28 Beav. 391, Romilly. (t) Foster v. Roberts, 7 Jur. N. S. 400, 9 W. R. 605. See Pennell v. Millar, supra. Bromley v. Smith, 26 Beav. 644. (u) Borrodaile v. Hunter, S M. G., 12 L. J. C. P. 225, s Scott N. E. 418, 7 Jur. 443. Dormay v. BorrodflMe, 10 Beav. 335, 16 L. J. Ch. 337. DISPOSITIONS OF LIFE POLidlES. 3O9 cestui que vie to go abroad, should be inserted in the assignment. Of course the assignor of a policy has notice Breach of of all its conditions, and will, if he avoid the policy by poUcy by^ ° breaking any of its conditions, be responsible under the covenantor, ordinary covenant not to vitiate the policy ; but where keep up policy, one covenanted that he would appear at any insurance office within the bills of mortality, and enable the covenantee to insure his life, and in pursuance of hia covenant appeared at an office which subsequently granted to the covenantee a policy containing a con- dition that the covenantor should not go beyond the limits of Europe, it was held that the covenantee ought to have given the covenantor notice that the insurance had been effected on those terms ; and that not having done so, he could not recover damages for the avoidance of the policy by the covenantor quitting Europe (v). But if the covenant be explicit and the covenantor have notice of the terms of the policy, the covenant will be construed strictly, and the covenantee may enter up a judgment and issue execution against the covenantor for neglecting to keep the policy on foot, notwithstand- Renewal ing he may himself have obtained its renewal " (x). covenMitor^ An action will lie for breach of covenant to effect and settle a policy, and the damage caused by the breach may be proved for (y). Insurances under the Customs Annuity and Benevolent Non- Fund (56 Geo. III. c. Ixxiii., 34, 3 5 Vict. c. 103, and fnsSanoes. ' * rules of 1872 thereunder) are not part of the assured'a estate. He has only a limited power of appointment over the funds secured thereby. On making certain payments during his life he acquires a right to appoint a sum of money on his death either for the benefit of (d) Vyse V. Wakefield, 6 M. & W. 442. (x) Winthorp v. Murray, 8 Ha. 214, 1852. Davidson's Precedents, 4 ed. vol. 2, p. 656. iy) Arthurs. Wynne, 14 Chi Di 603, 49 L. J. Ch. 557, 43 L. T. N. S, 46, 28 W. R. 97a. 310 THE LAWS OF INSURANCE. his widow, if any, or if not, of his relatives and nominees if accepted by the directors (z). The appointment being limited, no legacy duty is payable thereon (a), but succession duty is payable (b). If no nomination is approved and registered during lifetime, but express bequest of such policy be made, the legatee cannot take, and the assured's children, if any (wife being dead), are entitled (c). But irrevocable assignment of a certain portion of the sum insured is permitted under certain restrictions by the said rules (d). The effect of mortgage of such permitted portion would be a disposition pro tanto ; and his mortgagor's interest, if any, would be subject to the dispositions of the assured's will, or the rules of the society. The assignees or mortgagees of such a policy will not be liable to succession duty (e). The assured may settle his share of the benevolent fund to trustees, for the benefit of his daughter on her marriage. Such settlement is within the words of the rule, " for the benefit of the child or children." No admission of the trustees or the husband as nominees, nor any consent of the directors of the fund, is necessary (/). Friendly Insurances made under the Friendly Societies Acts Societies. (38, 39 Vict. c. 60; 39, 40 Yict. c. 32) are not assign- (2) Attorney-General v. Ahdy, i H. & C. 266, 32 L. J. Ex. g. (a) Attorney-Qeneral v. Rousell, TilBley on Stamps 685, 2nd ed. (J) Attorney-General v. Aldy, supra, SuooeBsion Duty Act (16, 17 Vict. 0. 51), s. 17. (c) W. Phillips' Insurance, 23 Oh. D. 235, 52 L. J. Ch. 44, 48 L. T, N. S. 81, 31 W. R. sii. (d) M'Lean's Trusts, 19 Eq. 274, Jessel, M. K. 1874. (c) Ihid., 11;, 16 Vict. c. 51 (Succession Duty Act) s. 17, (/) Pooock's Policy, 6 Ch. App. 447, 25 L. T. N. S. 233, 19 W. R. 801, DISPOSITIONS OF LIFE POLICIES. 3 I I able. The (assured) member may, however, by writing under his hand, delivered or sent to the society at its registered office, nominate any person as the recipient, in case of his (the member's) death, of any sum, from the society not exceeding .^50. But such nomination is revocable in the same manner. It seems only to amount to a power of revocable appointment, and no contract not to revoke would bind the society. The member need not be of full age, but must be over sixteen. Where assurances are made on the lives of children Insurances on under the Friendly Societies Act, 1875, the only Uves under people who can receive money are the parents, or their ®"' personal representatives, sec. 28 (2). Insurances effected through the Post Office, are also not assignable, but a power of nomination is given. The same rule applies to the Customs Benevolent Fund, and, it would seem, to various Indian Civil Service Funds. Assignments of Post Office Insurances or annul- Post Offica ties {g). Assignment of such contracts are subject to ''^^^'^*°''®^" the provisions of 27, 28 Yict. c. 43, s. II, and the rules made under the Act. The assignee cannot recover on a policy void for Assignment of fraud of the assignor, or for misrepresentations in the proposals (K). In an ordinary life policy the assignee for value can recover by the terms thereof. The word " legal " in a ^proviso which avoids the Legal means lawful. (9) 30> 31 ^iot. 0. 144, s. 8. [For a list of the Acts on that subject see Appendix, 16, 17 Vict. 0. 45, 27 ; 28 Vict. c. 43, additional facilities.] (A) British Equitable v. Gi-eat Western Railway, 19 L. T. N. S. 476) Malins, 1869, affirmed, 20 L. T. N. S. 422, 17 W. B. 43, 38 L. J. Ch. 132. 314- 312 THE LAWS OF INSURANCE. policy, "except it shall have been legally assigned," means lawful, not legal, as opposed to equitable (i). Authority to Authority to hold the policy for any bills or notes hold amounts i -i j- ,i ii t ^^ • i_ 10 assignment. Cashed lor grantee has also been held an assignment within the terms of a policy containing the following words : " unless it shall have been assigned for valu- able consideration six months before death " (k). Insurers can't The insurers, if they advance on a policy, are third and ciSm"^ persons for that purpose, and cannot avoid the policy advance, and claim the debt {I). Bankruptcy. But if the policy pass by operation of law to a trustee in bankruptcy, this is not an assignment within the above exception. Void assign- An assignment of a policy voluntary and void under security for ^ 3 -^^^^^ °- 5 ) '"'^^^ nevertheless be allowed as a charge antecedent on the policy to the extent of an antecedent debt, in consideration of which it was assigned (m). An assignment by way of charge with a trust as to the surplus in favour of a third person has been held void against creditors as to such trusts (to). So will be assignment by a bankrupt of an undis- closed policy (o). Assignment by But a felonious taking of property so far raises a felon. (i) Dufaur v. Professional, 25 Beav. 599, 4 Jur. N. S. 841, 27 L. J. Ch. 817, 32 L. T. 25. (k) Jones v. Consolidated, 26 Beav. 256, 5 Jur. N. S. 214, 28 L. J. Ch. 66, 32 L. T. 307. Moore v. Woolsey, 4 B. & B. 243, 24 L. J. Q. B. 40, I Jur. N, S. 468, 24 L. T. 15 s, 3 W. R. 66, 3 C. L. Rep. 207. White V. British Empire, 7 Eq. 394, 38 L. J. Ch. 53, 17 W. R. 26, 19 L. T. N. S. 306. {I) Jackson v. Forster, I E. & E. 468, 5 Jur. N. S. 1247, 29 L. J. Q. B. 8, 33 L. T. 290, 7 W. R. 578. (m) Stokoe v. Cowan, 30 L. J. Ch. 882, 29 Beav. 637, 4 L. T. N. S. 69s, 7 Jur. N. S. 901, 9 W. R. 8oi. («) Magawley's Trusts, 5 De G. & Sm, i, 15 Jur. 1005. (0) Schmdler v. Wace, 1 Camp. 487. He Smith, 12 W. R. 534. DISI'OSITIONS OF LIFE POLICIES. 3 i 3 debt as to support the assignment of a policy by the felon before conviction as security for the sum taken (jo). Gift of a policy is not valid against creditors, the Gift of policy, settlor being at the time insolvent (q). But once com- pletely made, it is not revocable by the donor (r). To constitute such a gift the policy may simply be delivered over with appropriate declarations (s), or be assigned in writing (f), or declared to be held by the donor in trust for the donee (zj), or directed to be held by trustee (■2;),insurer(a:;),or bailee for aparticular purpose. Where a man had made a settlement on his first Expression of T T . . T -,-,.. J desire to settle marriage, and bemg a widower and desiring to marry policy may again, wrote to one of the trustees thereof saying that a"signme*nt he desired to make a settlement (of six policies on his own life) on the children by the first marriage, and handed three to one trustee, and told him that the others were in a bank as collateral security for a loan, but that he would pay off the said loan, but made no legal assignment, and no notice was given to the insurers or the other trustee. Hall, V.-O., held : — (l.) That the evidence showed a complete assign- ment. (2.) That the person whose duty it was to give notice to the insurers was the trustee and not the settlor. (3.) That such notice only gave a legal title to sue in own name, and nothing more (y). (p) Choime V. Baylis, 31 Beav. 351, 11 W. R. 5, 6 L. T. N. S. 739, 31 L. J. Oh. 757, 8 Jur. N. S. 1028. (2) Magawley's Trust, 5 De Gr. & S. i, 15 Jur. 1005. (r) Rummens v. Bare, 1 Ex. D. 169, 34 L. T. N. S. 407, 24 W. R. 385- (s) Barton v. Gainer, 3 H. & N. 387, 27 L. J. Ex. 390. (t) Howes V. Prudential Assurance, 49 L. T. N. S. 133. ' {%) Sewell V. King, 14 Oh. D. 179, 28 W. R. 344. (v) Magawley's Trust, supra, Parker, V.-O. ■ (x) Such are policies under Married Women's Property Acts. (y) SeweU V. King, 14 Oh. D. 179, Hall, V.-C, 28 W. R. 344. Fol- 314 THE LAWS OF iNSURAIfCfi. Policy settle. Where the policy is so framed as to be part of his footing'a.r™* own estate, the grantee can settle it in the same way otherproperty. i^ which he could settle any other personal property, and subject to the same liability to have his settlement set aside by creditors as attends on any voluntary settlement (a). Non-performance by the husband of his covenant to effect and settle a policy will hot debar him from in- sisting on performance by his wife's father of his cove- nant to settle property on similar trusts (a). Names of persons interested must appear in policy, Both the names of trustee and C. Q. T. Trustee enabling settlor to dispose of policy is liable. The statute prohibits the making an insurance on the life of any person or on any other event whereon the person for whose benefit or on whose account the policy shall be made shall have no interest, and renders void every policy made contrary to the Act. It also renders it imperative to insert in the policy the names of the persons interested therein (5). But the statute does not prohibit a policy being granted to one person in trust for another where the names of both persons appear on the face of the policy (c). Where by marriage settlement the husband assigned a life policy to two trustees and covenanted to pay the premiums, one of the trustees having disclaimed, the other enabled the husband to dispose of the policy and a bonus thereon, and it was held that he was liable to lowing Fortescue v. Barnett, 3 My. & K. 36, 2 L. J. N. S. Ch. 98. Pearson v. AmieaMe, 27 Beav. 229, 7 W. R, 629. Kekewich v. Manning, 1 D. M. & G. 176, 21 L. J. Ch. 577. See Milroy v. Lord, 4 D. F. & J. 264. (z) See HoU v. Everall, 2 Ch. D. 266, 45 L. J. Ch. 433, 34 L. T. N. S. 599, 24 W. B. 471, as to mode of turning a policy on own life into one in favour of wife and children. (a) Jeston v. Key, 6 Oh. App. 610. (J) Hodson V. Observer Society, 8 El. & Bl. 40, 26 L. J, Q. B. 303, 29 L. T. 278, 5 W. R. 712, 3 Jur. N. S. 1 125. Shilling v. Accidentcd, 2 H. & N. 42, I F. & F. 116, 26 L. J. Ex. 266, 27 do. 16, 5 W. R. 567. (c) CoUett V. Morrison, 9 Hare 162, 21 L. J. (Ch.) 873. DISPOSITIONS Of LIFE POLICIES. 3 I 5 pay to the trust estate tlie money actually received for the policy (d). Where a policy has been settled and the settlor is Trustees may unable to perform his covenant to keep up the premiums, settlor cin't the court will authorise the trustees to sell or surrender ^^^V i^P policy, the policy (e). If an annuity or life policy is in settlement, it is the When trustee implied duty of the trustee to keep it up. It is other- poUoy'^upf wise, however, if he does not insure, but simply pays the premiums as an agent (/). If a trustee who insures does not keep the policy up, he is liable to his cestui que trust if he had funds in hand to pay the premiums (^), but it is otherwise if he had not funds and could not get any (Ji). If the trustee advance funds he has a lien on the policy (i). The trusts declared of a policy are just like in nature Trusts of a to those declared of other securities, and are similarly P^^^'^^* construed. While they divest the settlor of his interest, a resulting trust or term in the deed may bring it back. Thus a trust for A, but if he predeceased the settlor then B, unless the settlor should sell on A's decease, has been held to enable the settlor to dispose of the policy as he liked on A's death by charge or sale (k). Again trusts of a policy cannot be declared by refer- ence in the would-be settlor's will to a letter, though he could give the policy away on his death-bed (l). {d) Kingdom v. Castkmcm, 46 L. J. Ch. 448. (c) Bill V. Trenery, 23 Beav. 16. Beresford v. Berexford, 23 Beav. 292. (/) Darcey v. Ckoft, 9 Ir. Ch. 19. (g) Marriott v. Kinnersley, Tainl3m, 470. (h) Hobday v. Peters, 28 Beav. 603. {i) Olack V. Holland, 19 Beav. 262, 273, 2 W. E.. 40a, 18 Jur. 1007. Jolinson V. Swire, 3 Giff. 194. Todd v. Moothouse, L. E.. 19 Eq. 69. 23 W. R. 15s, 32 L. T. N. S. p. 8. (k) Johnson v. Ball, 1852, 16 Jur. 538. (I) Pedder v. Mozeley, 31 Beav. 159, 7 L.- T. N. Si 205. 3 1 6 THE LAWS OF VSSURASCK. If there are no funds to keep np a trost polity, the court will order it to be sold (m) or surrendered (n). Pdiejrin There i~ an advantage in taking a trust policy in X^^g^ the names of the trustees, as it diminishes the risk of forfeiture, and avoids the nebessity of an assignment, and of giving notice to the office. AMfflmient at Tmsts of a policy, whether effected in the names of maaej will the trustees or ai^igned to them, will in general com- pa«Ecmiu. prise bonuses, as well as the original sum assured. Hence if it be desired with reference to the practice of the office, or the terms of the policy, that there should be an option of having a bonus applied in diminution of the premium, power for this purpose should be specially given (o). yr^nemaeni In America it has been held that a life policy by a to hnsoanaB i i t i ir j j am^aaesA. husband, on his own life for the benefit of his wife, is assignable during his life, v:if.\ her eonseni, as collateral secuiitv for his debts, where no statute directly pro- hibits it, and that she is debarred by such consent from recovering the proceeds of the policy (p). In England probably the same would be the case on such a policy, since tLe wife being alone named would be sole and absolute benefidaiy under the policy, if she survived her husband (^). If a wife takes out a policy on her husband's life to her separate use. but if she die before the husband, for her children, the husband cannotdeal with the policy (r). («) Sai Y. Traury, 23 Bear. i6, 1858. {») Bert^nri v. Seresford, 23 EeaT. 29a. If,) Parka r. Bott, 9 Sim. 388. JLackenteai r. Laekenteem, 6 3ra. y. a. nil, 30 L. 3. Cb. 5. Conrtitey r. Ferrer*, i Sim. 137, 5 L. J. O, S. Cb. xorj. CWey r, BiaUy, 22 B^. 619. jkmdaatii Precedents, voL 3, 807. (i>) Charter Oak lAft t, 3ran< (4 Am. Bep. Jii,, 2 Story Enj. Jmr s. 1413- f'^) Sec, IQ, 33, 34 Tic. c. 93, and see £ervMi T. f (wan}, 23 Wianoimii 10& \r) Chajiin T. FeUma, 36, Coanccticat, 132, 4 Am. Bep. 49. nisposrnoxs of life policies. 317 In ScotlancI, under the law as to comimtnio honontm between spouses, it seems tliat a husband who effects a policy on his wife's life for her benefit, can charge the policy during his lifetime ($). By the [Married Women's Pi-operty Act. 1870 (0; M^m-led it is provided that " A married woman may effect a p°™g^'\o policy of assurance upon her own life, or the life of inspire, her husband, for her separate use ; and the same and aU benefit thereof, if expressed on the face of it, to be so efi'ected, shall enure accordingly, and the contract in such policy shall be as valid as if made with an unmarried woman." '• A policy of assurance effected by any married man Husband'a on his own life, and expressed upon the face of it to be benefit of wife, for the benefit of his wife, or of his wife and children, or any of them, shall enure and be deemed a trust for the benefit of his wife, for her separate use, and of his children, or any of them, according to the interest so expressed, and shall not, so long as any object of the trust remains, be subject to the control of the husband or his creditoi*s, or form part of his estate. "When the sum secured by the pohcy becomes payable, or at any time previously, a trustee thereof may be appointed by the Court of Chanceiy, in England or Ireland, according as the policy of insurance was effected in England or in Ireland, or in England by the judge of the County Court of the district, or in Ireland by the chairman of the Civil Bill Court of the division of the county in which the insurance office is situated, and the receipt of such trustee shall be a good discharge to the office. If it shall be proved that the policy was effected, and premiums paid by the husband with intent to defraud his creditor, they Intent to shall be entitled to receive out of the sum secured ^j^^^rs. an amount equal to the premiums so paid." This sec- («) ITiomsoti's TruMccs v. Thomso)i, 6 C. S. C. (4th series) 1227. Il8 THE LAWS OF INSURANCE. iankmptcy f husband. larried Vomen'a 'roperty Let, 1882. Jonstruotion f§io larried Vomen's 'roperty Lot, 1870. tion controls sec. 91 of the Bankruptcy Act, 1869, and preserves the policy to the wife, notwithstanding the bankruptcy of the husband (u). Although the Married Women's Property Act, 1 870, and the Married Women's Property Act (1870) Amendment Act, 1874, are repealed by the Married Women's Property Act, 1882, sec. 2 2, this section provides that such repeal shall not affect any act done or right acquired while either of such Acts was in force, or any right or liability of any husband or wife married before the commencement of this Act to sue or to be sued under the provisions of the said repealed Acts, or either of them, for or in respect of any debt, contract, wrong, or other matter or thing whatever, for or in respect of which any such right or liability shall have accrued to or against such husband or wife before the commencement of this Act. In re Adam's Policy Trusts (v), a husband effected a policy for the benefit of his wife and children under the Married Women's Property Act, 1870, and died insolvent. His wife and one child of the marriage pre- deceased him. Upon a petition by his surviving children under the tenth section of the Act for the appointment of a trustee of the policy money for a declaration as to the rights of the petitioners, the court held that it had under the tenth section no juris- diction to do more than make the order appointing a trustee ; but since under the policy there was a trust either for his wife for life with remainder to the children, or in the alternative for the wife and children as joint- tenants, the order was directed to be prefaced with an expression of opinion by the court that the wife took no interest, and that the surviving children took as joint-tenants ; and it now seems, from the judgment of Ohitty, J., that a policy effected by a husband under (u) Edit V. JEveraU, 2 Ch. D. 266, 45 L. J. Ch. 433, 34 L. T. N. S; 599, 24 W. B. 471. (■!>) 23 Ch. D. 525, 52 L. J. Ch. 642, 48 L. T, N. S. 727, 31 W. B. 810. DISPOSITIONS OF LIFE POLICIES. 3 1 9 section, ten of tlie Married Women's Property Act, 1 870, " for the benefit of his wife and children," should be read in conjunction with that section, and should by virtue of the word " separate use " in the section be construed as giving the wife a life interest only with remainder to the children. In Holt V. Ever all (x), a husband, who before the where there passing of the Married "Women's Property Act, 1870, ^^renderof had insured his life and had paid one premium on the Pji'^y P''i<"^ *° » , . Married insurance, after the passing of the Act gave up the policy Woinen's and received instead a policy at the same premium for forTne ^ '^ a sum payable to the separate use of his wife if she f^'^T't^Jh '° survived him, and to him if he survived her. He was insurance waa , ,1 , . . 1 -, . , ■, held'subse- at the time m embarrassed circumstances, and soon quent. after came under liquidation by arrangement and then died. His wife had separate income, subject to a restraint on anticipation, and the court held that the insurance must be taken as having been effected after the passing of the Married Women's Property Act, and that whether the subsequent premiums were paid by the husband out of his own money or out of the income of the wife's separate estate, the money payable on the insurance did not go to the trustee under the bankruptcy, but went to the widow by virtue of the Married Women's Property Act. It was further held on the evidence that the premiums were paid out of the wife's separate estate, and that therefore the trustee in bankruptcy would not receive out of the insurance money the amount of the premiums. The Married Women's Property Act, 1882 (4^5, 46 Power of wife Vict. c. 75, s. 11), provides that "a married woman *^^gj°;J^j^jrig^ may by virtue of the power of making contracts herein- "W'omen's before contained, effect a policy upon her own life or Act, 1882. the life of her husband for her separate use, and the same and all benefit thereof shall enure accordingly. (x) 2 Oh. D. 266. Tor other references see last page. 320 THE LAWS OF INSURANCE. Policy by husband for wife and - children. Intent to defraud creditors. Appointment of trustee of policy money. If no trustee, moneys vest in executors, &c. New trustee. Receipt. A policy of insurance effected by any man on Ms own life, and expressed to be for the benefit of his wife or of his children, or of his wife and children or any of them, or by any woman in her own life, expressed to be for the benefit of her husband or of her children, or of her husband or children or any of them, shall create a trust in favour of the objects therein named, and the moneys payable under any such policy shall not, so long as any object of the trusts remain unperformed, form part of the estate of the insured or be subject to his or her debts. Provided that if it shall be proved that the policy was effected and the premiums paid with intent to defraud the creditors of the assured, they shall be entitled to receive out of the moneys payable under the policy a sum equal to the premiums so paid. The insured may by the policy or by any memorandum under his or her hand appoint a trustee or trustees of the moneys payable under the policy, and from time to time appoint a new trustee or trustees thereof, and may make provision for the appointment of a new trustee or new trustees thereof and for the investment of the moneys payable under any such policy. In default of any such appointment of a trustee, such policy, immediately upon its being effected, shall vest in the insured and his or her legal personal representatives in trust for the purposes aforesaid. If at the time of the death of the insured or at any time afterwards there shall be no trustee, or it shall be expedient to appoint a new trustee or new trustees, a trustee or trustees or a new trustee or new trustees may be appointed by any court having jurisdiction under the provisions of the Trustee Act, 1850, and the Acts amending and extending the same. The receipt of a trustee or trustees duly appointed or in default of any such appointment, or in default of notice to the insurance office, the receipt of the legal personal representative of the insured shall be a discharge to the office for the sum secured by the policy or for the value thereof in whole or in part," DISPOSITIONS OF LIFE POLICIES. 3 2 I Having regard to the words in sec. ii of the Married Surrender of Women's Property Act, 1882, declaring that a policy^" effected thereunder shall create a trust in favour of the objects therein named, and the moneys payable under any such policy shall not, so long as any object of the trust remains unperformed, form part of the state of the insured, it would seem that an insurance company could not accept a surrender of such a policy so long as any object of the trust was unperformed. The effect of the policy and the Act taken together Effect of is to constitute a declaration of an executed trust, and ^^t'^ ^° all the court has to do is to express its view of the construction of the two instruments taken together. "In the eleventh section of the Married Women's Per Chitty, J., Property Act, 1882, the words 'separate use' are ^o^e™a® omitted, probably because the Act has previously made -^ggP^^^^j^"*' what the legislature considered sufficient provisions as to the property of a married woman being held for her separate use, and it was considered unnecessary to insert any further provisions in the eleventh section." There is another difference between the words of that section and the corresponding part of the tenth section of the Act of 1 8 70. The new section speaks of a policy effected by a man " for the benefit of his wife, or of his children, or of his wife and children or any of them." There it treats the interest of the wife and the interest of the children as two distinct things. That is an indication, though a slight one, that the legislature never intended the wife and children to take con- currently, but that they should take separate interests : in other words, the wife and children do not take to- gether, or the survivors of them, but the wife is spoken of separately from the children. That, therefore, shows that there is a distinction between the wife and children as regards the interests they are to take (y) . . . Oon- {y) per Chitty, J., re Adam's Policy Trusts, 23 Ch. D. 529-30, supra, p. 3.7- ^ 32 2 THE LAWS OF INSURANCE. Bidering that tie Act of 1882 deals with the subject of policies for the benefit of the wife and children of the insured in almost the same terms as the Act of 1 870, it would be very desirable for the offices of insurance companies to have a form of settlement for use under the new Act of 1 8 8 2 ; for this Act, through its being in almost the same terms as the Act of 1870, practically leaves matters much in the same position as they were in under the Act of 1870." Interest of In the Married Women's Property Acts, 1870, contingent!' 1 882, nothing is Said as to the power of assignment of a policy by the beneficiaries before the death of a settlor. It would seem, however, that their interests are all contingent on survival, and that consequently no assignment in the settlor's life would give more than a contingent right to the proceeds of the trust policy («). The effect of an appointment by a settlor of policy moneys to his executors and administrators, is to make the policies part of the estate of the settlor, subject to the other interests created by the settlement (a). Policy moneys The moneys payable under a policy effected by a husband's husband for his wife and children, in conformity with estate. the Married "Women's Property Act, 1882, do not belong to his estate ; but in the event of the beneficiaries predeceasing him, will result to his estate. The assured has, therefore, it seems, no disposable interest in such policy other than that arising out of the prospect of the predecease of the beneficiaries. In America, to a suggestion that such a provision being voluntary was in the nature of a testamentary dis- (z) See Connecticut Mutual Life v. Bwrroughs, 34 Connecticut, 306, 314. Re Adam's Policy, 23 Ch. D. 525, 52 L. J. Ch. 642, 48 L. T. N, S. 727, 31 W. K. 810. (») M'Kenzie v. M'Kenzie, 21 L. J, Ch. 465, 15 Jur. 1091. 323 DISPOSITIONS OF LIFE POLICIES. position and so revocable, the court said it was no more revocable than a promissory note (h). In Canada it has been held that a policy on husband for benefit of wife cannot be claimed by the creditors of either spouse (c). As to the wife, this would seem true so long as the interest was only contingent. " This form of policy may be likened to a specific poiioy on legacy made by the husband, conditioned on its beins '^V^!''^'^, ' . ^ with pnncipal gagee such proportion of that premium as shall belong security on , to the then unexpired part of the current year has ^^ been held to be sufficient evidence of an intention that the policy should be assigned with the principal security upon redemption, even without regard to subsequent words, importing yet more clearly a right in the mort- gagor to require an assignment of the policy. But the passing of letters between the parties, which refer to the necessity for the insurance, or a provision in the principal security for payment by the debtor of the additional premiums, which in certain events might become payable upon the policy, or a covenant by the cestui qiie vie of the annuity to do the necessary acts for the eflecting of the insurance, are not sufficient (l) to give the mortgagor or grantor of the annuity a title to the poKcy, for these are only statements of or refer- ences to the terms upon which the transaction was efiected, and affijrd no evidence of a contract which will take the case out of the general rule. It seems that letters which have passed between the parties may Letters as be looked at in order to ascertain whether there were nght to policy. any contract concerning the right to the policy, where (i) Exp. Andrews, re Emmett, 2 Kose 410, 1 Mad. 573, Fisher on Mortgages, 4th edition, p. 975. {h) WiUiams v. Athyns, 2 Jo. & Lat. (Ir.) 603. (I) Gottlieb V. Oranck, 4 De G. M. & G. 440, 22 L. J. Ch. 912, 17 Jur. 704, Fisher on Mortgages, 976, 4th edition. 532 THE LAWS OF mSUEANCE. there is no discrepancy between the letters and the security (m), though it would be otherwise if the effect of the letters would be to vary the stipulations of the security (w). Contract that Where there is an express contract that the policy 'eass^ed. ''* ^^^^^ ^^ reassigned upon the security being redeemed, if the grantor shall elect to take it, the grantee may not, either before or after election, part with the policy for his own benefit (o). Position of Where a creditor whose debt is secured by sureties, 'urft5°fo7'*^ insures the life of the principal debtor, he is perfectly i^w' ^'vj*"^ fi^^® ^ assign over such poKcies to the debtor or any one or more of the sureties paying the principal debt. But as between the sureties no one of them can by paying the debt, and obtaining such assignment, appro- priate the whole benefit of the policy, and claim con- tribution from his co-sureties as though such policy never existed. To give him such a right, the others must abandon or disclaim all benefit of the policy (jp). Position of ioreties inter le. Surety can dednct sums spent in keeping up policy. Creditor within rule that trustee may not make profit. But the surety who takes over the policy is entitled in an action for contribution to deduct from the amount received on the policy all sums spent by him in keep- ing it up, since, as the benefit is joint, the burden must be so also (j). Where a contingent interest was assigned upon trust to secure a debt, and the creditor insured against the contingency and received the insurance, he was held to be within the principle which prohibits a trustee from making an advantage out of his trust ; and the debtor being bankrupt, the creditor was permitted (m) Gottlieb v. Cranch, supra. \n) Squire v. Campbell, I MyL & C. 459, Fisher on Mortgages (4th edn.), 977. (0) HawTdns v. Woodgate, 7 Beav. 565, 8 Jur. 743. "" (p) Atkims V. ArcedecTcne, 24 Ch. D. 709, 53 L. J. Ch. 64, 48 L. T, N. 8.725. (j) Ibid. DISPOSITIONS OF LIFE POUCIES. 333 to prove only for the balance of the dett (r). A Life policy u mortgage of a life policy is a mortgage of " property " "p™p«^-° so as to require an ad vol. stamp (s). A Hfe policy does not create the relation of predecessor and successor Succession between the insurers and the assured, or any assignee pa^ble! of the assured, so as to attract succession duty {t). In the second class of mortgages of life policies Policy as come tenants for own or other lives, annuitants, or Te^^ persons with a defeasible interest iu mortgaged pro- mortgagor's _ - oar interest being perty. in such cases, according to the tenure of the defeasible, mortgagor, insurance is made either on his own life or on the Hfe upon the duration of which his interest depends. And such insurance is a farther security to the mortgagee in case the tenant for life die without paying the mortgage money, or the tenant for lives loses his estate by the death of the cestui que vie. The mortgagee may make such an insnrance a condition precedent to lending, and there is no objection to such a poUcy being effected in the name of the mortgagor; but the mortgagee should be careful to ascertain that the mortgagor has an actual and in- surable interest in the Hfe insured at the time the policy was effected. But he is under no obligation Conrt cannot independently of contract to effect such an insurance, i^^^oe for and the High Conrt of Justice has no more power tie purpose of ■*■ perfecting than had the Court of Chancery when directing security, money to be raised upon estates of the kind now in question to compel persons who have an insurable interest in the lives upon which such estates depend to effect poKcies on such lives as part of the security for the money directed to be raised {v). In such mortgages it is usual, if not invariable, for Mortgagee can add premiums to security, (r) .Eep. Andrews, 2 Rose 410, I Mad. 573. («) Caldwell v. Dawson, 5 Exch. i, 14 Jur. 316. (t) 16, 17 Vict. c. 51, 8. 17. \v) OranfUy v. Garihmaite, 6 Mad. 96, Fisher on Mortgages (4th edn.) p. 13. 334 THE LAWS OF INSURANCE. Power of Bale on breach of covenant to insure. Power to appoint receiver. the mortgagor to covenant to pay the premiums. If he fails to do so, the mortgagee can pay them, and add them to his security. If the policy be let drop, or none be effected or stipulated for, the mortgagee clearly has an insurable interest in an event which may terminate his security such as to enable him to insure the life of the tenant for life, or cestui que vie. If he does so, the insurance is wholly his own, and the mort- gagor has no claim on it {x). By section ig of the Conveyancing Act, 1881, a power of sale is made an incident of all statutory mortgages in the absence of any contrary, varying, or limiting stipulation. And by sec. 20 (iii.) thereof such power of sale will arise on breach of a covenant to keep on foot a life policy, or policies as a collateral security to the mortgagee of the life interest («/), and the power to appoint a receiver given by sec. 24, where the power of sale has arisen, enables a mortgagee to appoint such receiver and authorize him in writing, sub. sec. 8 (iii.), to employ the moneys received by him, after satisfying certain prior outgoings, in paying the premiums upon life, fire, or other policies, properly payable under the mortgage deed. How procaeda of policy applicable. Policy is "property.'' By section 22 (2) the proceeds of a life policy, which is a security within the mortgage deed, are to be applied as money arising from a sale of mortgaged property (z). A life policy is property within the meaning of sec. 19 (l), V. sec. 2 (i), and the power of sale consequently applies to that also, as well as to any realty or chattels (x) Gotdieh v. Ormch, 4 De G. M. & G. 440, 17 Jur. 704, 22 L. J. Ch. 912. Williams v. Atkins, 2 Jo. & La. (Ir.) 603. Bashford v. Camn, 33 Beav. 109, 9 L. T. N. S. 43, 1 1 W. R. 1037. Hwrnphry v. Arahim, LI. & Gould temp., Plunkett 218. Exp. Lancaster, 4 De G. & Sm. 524. See also Knox v. Turner, 5 Ch. App. 515, 39 L. J. Ch. 750, 23 L. T. N. S. 227, 18 W. R. 873. (y) Wolstenhohne & Turner's Conv. Act (3d edn.), p, 66. (z) See Boswell v. Coahs, 23 Ch. D. 302. DISPOSITIONS OF LIFE POLICIES. 33 5 within a mortgage deed. So that the mortgagee can sell and assign (a) a life policy if the mortgagor does not comply with the terms of the mortgage deed He can also foreclose (6). In Dyson v. Morris (c) it was held by Wigram, Mortgage upon V.-C, that although on a simple mortgage of a policy Mortgagee of assurance the mortgagee, in default of payment, is o*^"""* sell, entitled to a sale under the decree of a Court of Equity, yet if the policy have been assigned to the mortgagee upon trust to receive the money to become payable, and thereout to pay the expenses and mortgage debt, and pay the residue to the mortgagor, the court cannot direct a sale of the policy. The mortgagee must wait until the death of the mortgagor before he can make his security available. Where a policy of life assurance is mortgaged, and Covenant to the mortgagor covenants to keep up and restore the Breach, policy, and breaks his covenant, the mortgagee has an D*™^s^'- action for damages, and the measure of damage is : — (i.) The amount of premiums, if any, paid by the mortgagee to keep up the policy and interest thereon. (ii.) The amount necessary to renew the policy, if it has dropped in consequence of the mortgagor's default (d). (iii.) In case of a loss, the amount of the loss (not exceeding the mortgage debt) (e). Where the covenantor commits suicide, the policy being on his own life and in trust, the trustees cannot (a) But see DrysdaZe v. Pigott, 8 De G. M. & G. 546, 22 Beav. 238, 25 L. J. Oh. 878, 27 L. T. 310, 4 W. R. 773, 2 Jur. N. S. 1078. (6) Parker v. Marquis of Anglesey, 20 W. R. 162, 25 L. T. N. S, 482, Kingsford v. Swmford, 7 W. R. 663. (c) I Hare 413. (d) 2 Dav. Oonv. pt. ii. 63, and cases there cited. Pisher on Mort- gages (4th edn.), p. 3Sr.. (e) Mayne on Damages, 241 (3d edition). 336 THE LAWS OF INSURANCE. Covenant to repay jv'emiums. Damages for breach. Covenant to keep up policy and power to add premiumB to debt. Mortgage to company, premiuma "just allowances. " Mortgagee cannot add premiums unless express contract. Except under Conveyancing Act, 1881. recover damages from his general estate under such covenant (/). Where the mortgage deed contains a covenant by the mortgagor to repay any premiums paid by the mortgagee, the latter has his remedy, either on that covenant for the amount so paid by him, or on the covenant to keep up the policy, in which latter case the measure of damages would be just the same where no loss had happened. Where the mortgage contains a covenant by the mortgagor to keep up the policy, but no covenant by him to repay to the mortgagee any premiums spent by him, but a power to pay and add to the mortgage debt, only nominal damages will be given in an action for breach of the covenant {g), as the deed itself pro- vides a remedy for the breach by adding the sums paid to the mortgage debt. Where a policy has been mortgaged to the insurers, and the mortgagor has agreed but failed to pay the premiums, they will, on taking the accounts, be treated as just allowances to the insurers as mortgagees Qi), if they have kept alive the insurance, but not otherwise (i). If allowed they will be added to and bear interest at the same rate as the principal debt. A mortgagee could not insure and add the premiums to the mortgage debt in the absence of an express contract authorising him to do so {h). This, however, is varied by 44 and 4 5 Vict. c. 4 1 , s. 1 9 (ii.), under which (■«, p. 272) a mortgagee may insure against loss by fire, and the (/) Dormay v. BorrodaUe, 10 Beav. 335, Langdale. (g) Brown v. Price, 4 Jur. N. S. 882, 6 W. R. 721, Fisher, p. 351 (4th edn.) (h) PitzWUliam v. Price, 4 Jur. N. S. 889, 31 L. T. 389. Brovm v. Price, sttpra, (i) Grey v. Mison, l Giff. 438, Fisher, p. 861 (4th edn.), 2 Jur, N. S. 511, 2S L. J. Ch. 666, 4 W. R. 497, 27 L. T. 165. (i) Brooke v. SUme, 34 L. J. Ch, 25, 12 L. T. N. S. 114, 13 W. R. 401. DISPOSITIONS OF LIFE POLICIES. 337 premiums will be a charge on the property. An executor who dropped a policy on the life of a debtor to the testator's estate without consulting those bene- ficially interested, was held liable for the whole sum which would have been received if he had kept up the Executor T /,v should keep policy (I). up policy. Where a deed by which the defendant assigned to Breach of the plaintiff a policy on his own life contained a gorng out of covenant that he would not do anything to forfeit Europe. ■' o Damages. the policy, and a forfeiture accrued through the defendant's going beyond the limits of Europe without the license of the company, the damages were assessed upon the present value of the policy, to be calculated by an actuary, taking into consideration that the defendant covenanted to pay and should pay premiums on the policy (m). " Where a policy of life assurance is mortgaged, the What a ^ j/l,lJ4.- S5> mortgage of mortgage deed should contain : — life policy should contain. (i.) " A covenant to keep up the policy. (ii.) " A covenant to restore it if it lapses. (iii.) " An authority to the mortgagee to keep up or restore the insurance, in case of default by the mort- gagor, and to recover the money so expended, or to add premiums to the mortgage debt." Money advanced for keeping up a mortgaged policy or effecting a new policy in lieu thereof, are exempted from the ad valorem stamp duty by Stamp Act, 1870, sec. 107. (I) Oa/rner v. Moore, 3 Drew 277, 24 L. J. Oh. 687. (m) HawUm v. Coulthurst, 5 B. & S. 343, 33 L. J. Q. B. 192, 12 W. R. 825. ( 338 ) OHAPTBE XVIII. LIEN. Policies. Besides riglits to or in policies accruing to persons Leslie v. (other than the person taking out the same) by way of French. assignment or charge, numerous questions arise as to lien on policies. In a very recent case, Leslie v. French (a), the law as to one branch of this subject has been summed up and digested by Pry, L. J., who said as follows : — Lien may _ "A lien may be created upon the moneys secured premiuma. ° by a policy by payment [of premiums in the following cases : — Contract with " I. By contract with the beneficial owner of the policy. owner. By virtue of "2. By reason of the right of the trustees to an ruB ees ip. in,Jemnity out of the trust property for money expended by them in its preservation, Bysubro-; " g. By subrogation to the rights of the trustees of some person who may have advanced money at their request for the preservation of the property. By right of « ^_ gy reason of the right vested in mortgagees or to preaerve other persons having a charge upon the policy to add to that charge any moneys which have been paid by them to preserve the policy." An instance of the first class of cases, viz., the creation of a lien by contract with the beneficial owner (a) 23 Ch. D. SS2, S2 L. J. Ch. 762, 48 L. T. N. S. 564, 31 W. K. S6i' seourity. LIEN. 339 is to be found in tlie case of Aylwin v. With (b), Example of where Kindersley, V. 0., held " that where a mortgagor contract, had contracted with the mortgagee to pay the premiums, and there were sureties for the performance of this contract by the mortgagor, and the sureties had been called upon and had paid the premiums, they were entitled as against the mortgagor to a lien upon the policy moneys. It is obvious that in this case the sureties were, by contract with the principal debtor, entitled to the benefit of all the securities which the mortgagee could have enforced, and amongst others to a charge for the premiums paid. The second and third classes of cases are well illustrated by Clach v. Holland (c), in which it was held that trustees who Examples of •J 3 • i -u- 1, j-t. lieu by virtue paid moneys under circumstances which gave them of trusteeship no right to a charge, could not create a charge in subrogation, favour of a third person from whom they borrowed moneys. To the same class may be referred the case of Gill V. Downing (d), in which mortgagees, whose title as such was good after, and only after the death of the tenant for life, were held entitled to a lien during the subsistence of the tenancy for life. The mortgagees were put by subrogation in the place of the trustees. Again, in the case of Todd v. Morehouse (e), the right of trustees to create a lien by subrogation of their rights was recognised, and it was determined that a person paying at the request of the trustees did not lose the right to the lien, simply because the trustees might possibly have taken some other course to pre- serve the property." His lordship continued : " Such appear to me to be the classes of cases in which a lien is created by payment of premiums. I am fur- ther of opinion that, except under the circumstances to which I have referred, no lien is created by the pay- ment of the premiums by a mere stranger or by a part (b) 9 w. R. 720, 30 L. J. Ch. 860. (c) 19 Beav. 262, 2 W. E. 402, 18 Jur. 1007, 24 L. J. Ch. 13. {d) 17 Eq. 316, 30 L. T. N. S. 157, 22 W. R. 360. (e) L. R. 19, Bq. 69, 23 W. R. 155, 32 L. T. N. S.- 8. 340 THE LAWS OF INSUEANCE. Payment of owner. I wiU first consider the case of payments by Slre'^teiglr mere stranger. On principle it is difficult, if not im gives no lien, possible, to SCO why such payments, which when mad without contract or request are a mere impertinence should create a lien upon the property. It is eviden that in themselves they would not even create a groum of personal action against the person eased by the pay ment, for it is certain that payment of moneys by 1 for B gives no ground of action against B, unless the' are paid on his request. Further, the law relating t ' confusion ' appears strongly to show that no such righ would exist. If I pour my gold into your heap, or pu my silver into your melting-pot, or turn my corn inti your granary, I have no right to an account or an; relief against you, but, on the contrary, I have actuall; transferred the property in what was mine to the persoi with whose property I have mingled it. Again, thi authorities seem to me to be very clear upon this point In the case of Burridge v. Bow (f), Knight Bruce, L. J, used the following language : — ' Nothing that has beei stated to me has had the effect of persuading me tha without contract for that purpose the mere fact o making payments of the premiums, however necessarj that might be for the preservation of the property would give the party making those payments a title t( the property. A mere stranger by paying the pre miums on a policy cannot acquire a lien on it. Hi can only acquire a lien by some contract with th( persons beneficially interested in it, or with the trustee where the trustee himself might have obtained i lien.'" The learned Lord Justice Pry further said in thi ^rMniums°b ^^^^ ^^^ {Leslie V. French) — " With regard to pay part owner ments made by a part owner, it appears to me that excep nriienf ^^° ^1 contract such payments give no title to the persoi making them against the other part-owners of th( (/) Burridge v. Sow, I Y. & 0. (Ch. 0.) 183, 191, 583, 13 L. J. CI 173, 8 Jur. 299. LIEN. 341 policy. That payments by a mortgagor who in equity Payments by is part-owner with the mortgagee create no lien as ^°^ gagor- against the mortgagee was determined by Romilly, M. R. (g). And, generally speaking, it is clear that money laid out by the tenant for life in improvements By Tenant on the estate creates no lien against the remainder- man (h). Again, in Fennell v. Millar (i), the Master of the Rolls had to deal with a case in which A, the owner of policies, had as part of a transaction avoidable for fraud assigned them to B, and had covenanted to keep them up. B, claiming under the assignment. Under had paid premiums. A instituted a suit to set aside assignnfent. the transaction on the ground of fraud, and the Master of the Rolls decided that the assignment was a valid security for the moneys actually advanced, and not for the premiums paid by B, which was a voluntary pay- ment. " In this case it is evident that until the transaction was avoided, A and B both had interests in the poli- cies, and yet the payment by one of the persons so interested was held to create no lien as against the other. "The law of contribution does not apply, for (i) it Eight of 11, . . -, „ ^ contribution arises only between persons jomed for a common pur- gives no lien. pose, or who stand in the position of tenants in common or co-parceners. " (2.) The right to contribution is a personal right, and the remedy personal, and there is no lien for the amount of the moneys in respect of which the right {y) Norris v, Caledonian Ins. Co., 8 Eq. 127, 132, 20 L. T. N. S. 939, 17 W. R. 954. (A) Tenants improving under the Settled Land Act, 1882, must insure for benefit of the remainder-man. See Waugh's Trusts, 46 L. J. (Oh.) 629, 25 W. R, SSJ. (i) 23 Beav. 172, 5 W. R. 215, 29 L. T. 35. See Darcy v. Croft, 9 Ir. Ch. 19, 1858. 342 THE LAWS OF DfSUKANCE. arises. This was decided by Lord Eldon in expte Young (h), overruling Lord Sardwicke." No lien on Where the tenant for life under a* settlement of a premmms^paid residuary estate, which comprised an annuity, and a fMlife*"* policy on the life for which the annuity was held, paid premiums on the policy which the ti'ustees had power to retain in specie and keep up, she was decided to have no lien on the policy for such payments, since the policy was kept up for the benefit of the estate (I). It should be observed that the trustees had power to retain enough out of the income to pay the premiums on the policy, and the court considered that they might be taken to have done so, which would only have diminished the actual income of the tenant for life equally with the payments she herself made. Lien upon a policy may arise in other ways than by payment of premiums under the circumstances before stated. Lien by deposit of policy. Although mere deposit of a policy upon an advance of money, without notice to the insurance office of the deposit, will not suffice to constitute an equitable mortgage of the policy, it may create a lien thereupon, if such be the intention of the parties, even though not a word passed at the time the deposit made (m). was Further ad- And an equitable charge may be created by mere vered.'"°" deposit, accompanied by notice to the office (p), and as the Court would infer from that deposit that the money then advanced should be charged as if there was {h) 2 V. & B. 242. {I) Waugh's Trusts, 46 L. J. Oh. 629, 25 W. R. SSS- Browne v. Browne, 8 W. R. 726. See also Money v. Gibbs, i Dr. & Wal. (Ir. ) 394. (to) Gibson v. Ova-bun/, 7 M. & W. 555, 10 L, J. N. S. Bxch. 219. Chapman v. Chapman, 13 Beav. 311, distinguished in Mcmghan v. Ridley, 8 L. T. N. S. 309. Rummens v. Ea/re, i Ex. D. 169, 34 L. T. N. S. 407, 24 W. K, 385. Oreen v. Ingham, L. R. 2 C. P. 525. See Conway v. Britcmnia, 8 Lr. Can. Jur. 162. (p) Expte Kensington, 2 V. & B. 83, Eldon, C. (1873). Ferris V. MvUins, 2 Sm. & GifE. 378, 1 8 Jur. 718. LIEN. 343 a written agreement, additional advances would also be so charged unless a contrary intention appeared {q).^ Insurance brokers have a general lien on the marine Lien by policies effected by them, for the general balance due eommiseioned to them from their principals (r). This rule applies to *« effect land policies when effected through such brokers, but depends on the custom of a particular calling. Even with them no lien can be claimed if the policy has been deposited with them for a special purpose (.s). If one broker is employed by another broker to effeot a policy for that other's principal, the sub-agent has still a lien on the policy for premiums due from the broker who employed him (t). A solicitor may have a lien on a policy of in- Solicitor's surance for his costs. Such lien is only a passive '^"" remedy, giving no claim to the fund secured by the policy, but merely a right to embarrass the person who claims the fund by the non-production of the docu- ments of title. A solicitor is not bound to give the insurance office any notice of his lien, since owing to the nature thereof he would not by such notice convert the insurers into trustees for him, and failure to give such notice is in no way such negligence as to deprive him of his lien (u). He cannot be made to part with the policy till he is paid, except upon terms (v), such as payment into court of policy monies, or preservation (}) Expte Langatone, 17 Ves. 227, Eldon, 0. (1810). See Mis V. Kreutzinger, 27 Missouri 31 1. TaUot v. Frere, 9 Ch. D. 568, 572, 27 W. R. 148. (r) See Cross on Lien, and cases there cited, 277, 399. Castling v. Aubert, 2 East 325 (1802). (s) Muir V. Fleming, 1 Dow & Ry. N. P. 29. (t) Dixon V. Stansfield, 10 C. B. 398. Fisher v. Smith, 4 A. 0. i, 48 L. J. Q. B. 411, 39 L. T. N. S. 430, 27 W. R. 113. (m) West England Bank v. Batchelm; 30 W. R. 364, 51 L. J. (Ch.) 199, 46 L. T. N. S. 132. Felly v. Wathen, i De G-. M. & G. 16. Richards V. Platel, Craig & Ph. 79. mteadman v. Webb, 4 My. & Cr. 346. See Dearie v. Hcdl, 3 Russ. I, for rules as to priority in regard to choses in action. {v) Richards v. Platel, Cr. & Ph. 79 at 84, Oottenham, C, lAmerich Co, V. O'Ferrall, l Ir. Jur. 93. 344 iBE LAWS OF INSURANCE. Eight to stop in transitu gives no right to insurance, Vendor's lien subrogated to insurers. Lien created by deposit by person out of jurisdiction \7ith one ■within. Creditor having two debts secured by policy or surety of one debt cannot claim the policy after payment. Lien drops ■with policy. Lieu by mortgagor paying premiums. of the lien by the insurers. But it is doubtful whether such a lien could be enforced by suit at all (x). Lien of vendor and right to stop in transitu do not entitle the vendor to the proceeds of policies effected by the purchaser on the goods sold (y). Where an unpaid vendor who is insured recovers from the insurers, the insurers are entitled to his lien as against the purchaser, and if the vendor recover from the purchaser too, he must refund the insur- ance (z). Where a policy granted to a person domiciled out- side the jurisdiction is deposited with a person within the jurisdiction to answer a debt incurred by a contract made within the jurisdiction, a lien thereon will be acquired by the depositee, and will not be affected by the bankruptcy in his own domicile of the depositor (a). Where a creditor has his debt secured by a policy and guaranteed by a surety, and also has a lien on the policy for another debt, the surety is not entitled to the policy on paying the debt, but his rights are subject to the hen (6). When a policy drops, the lien drops ■with it (c). If the mortgagor after bankruptcy pays premiums to keep up a mortgaged policy, such payment is in the nature of salvage, and he has a lien on the policy for the amount paid (d). {x) Stedman v. Welh, 4 My. & Or. 346. Oottenham, C, 1839. ly) Berndtsonv. Strwng, 3 Oh. A. 588, 16 W. R. 1025, Cairns (1868), distinguishing WorraU v. Johnson, 2 Jac. & W. 214. (2) Castdlainv. Preston, 11 Q. B. D. 380, 52 L. J. Q. B. 366, 49 L. T, N. S. 29, 31 W. R 557, per Bowen, L. J. (a) Le Feuvre v. SvUhian, 10 Moore, V. C. I. (h) Farebrother v. Woodhouse, 28 L. T. 94, 5 W. R. 12, 23 Beav. 18, 26 L. J, Ch. 81, Jeffery's Policy, 20 W. R 857, (c) BvMeed v. Western England, 5 Ir. Ch. 553. Norris v. Caledonia/n Ins. Co., 8 Eq. 132, 20 L. T. N. S, 939, 17 W. R 954. (d) Shearmmi, v. British Empire Mutual, 14 Eq. 4, 41 L. J. Ch. 466, 26 L. T. N. S. 570, 20 W. R 620. But see Saunders v. Dunman, 7 Ch. D. 825, 47 L. J. Ch. 338, 38 L. T. N. S. 416, 26 W. R 397. ( 345 ) CHAPTEE XIX. CONFLICTING CLAIMS. When conflicting claims are made on an insurance when company in respect of a policy, the proper procedure sh^ifid"'^ is to interplead (a), and not to pay into court under interplead and the Trustees' Eelief Act (b), the insurers not being court, under trustees or stakeholders, but debtors. l°'^l^ ^"'*" The practice of paying into court under that Act has been often used (c), until Jessel, M. R., pointed out that unless the policy was a trust policy the Act did not apply. The insurers cannot interplead if they have any adverse claim in respect of the subject-matter (d). In Ireland it has been held that they cannot interplead if one claimant offers a sufficient indemnity, and that if he offers indemnity and they are not satisfied they should pay into court under the Trustees' Eelief Act («). When an action is commenced by a claimant on a policy, if it is not so framed as to bring the other claimants before the court, the insurers may interplead and have the first action stayed (/). An offer should be made to pay interest on the policy moneys (g), since a policy bears interest under (a) See Prudential v. Thomas, 3 Ch. App. 74, 37 L. J. Ch. 202, 16 W. E. 470. (6) Haycock's Policy, I Ch. T>. 611, 45 L. J. Ch. 247, disapproving re United Kingdom Life, 34 Beav. 493, 13 W. E. 645, 24 W. K. 291. (c) Chapman v. Bernard, 17 W. R. 359, Webb's Policy, 2 Eq. 456, IS W. R. 529, Oobbe's Policy, 15 W. R. 29. (d) Bignoid v. AudZand, n Sim. 23, 30 (1840), Shadwell, V.-C. (e) Chapman v. Besnard, 17 W. R. 359, 1869, O'Hagan. (/) Prudential Co. v. ThoirMS, supra, , (g) Bignoid v, Audland, supra, 34^ THE LAWS OP msUBANCE. 3 and 4 Wm. IV. c. 42, s. 28 (h), for it would seem that submission to pay the moneys to the persons found to be entitled will not remove the obligation to pay interest even if conflicting claims through no fault of the insurers delay such payment (i), unless any arrangement has been come to that the money should not be invested or brought into court (k). undCT^deoree ^^ *^® insurance Company pay under decree moneys indemnifies payable under a lost policy, such decree is sufficient company. indemnity (0. Payment to The insurers can safely 'pay a trustee of a policv even trustees good. •/■■,,,,,,, f J II under tne trust he has no express power to give receipts (m). The authorities conflict as to whether a policy can be taken in ezecution under a Jl. fa. In Ireland it has been held that a policy of life insurance is not such a security for money as can be taken by the sheriff (n). In England the contrary has been held (0); but the Irish case was not cited to the court, and in the latest case in Ireland (p), the court fully discussed both authorities, and followed the previous Irish decision. Canadian policies usually provide that a fire insurance shall cease on the property being taken in execution. The American view as to limitation of suit is that the time runs from the time when the loss becomes payable by the terms of the policy, unless the policy clearly shows that the time intended was the happen- ing of the fire (q). Can policy be taken in execution. Limitation of suit. (/i) Bushnan v. Morgan, 5 Sim. 635 (1833). (i) Prmck V. Royal Exchange Co., 6 Ir. Ch. 523. (k) Same case on appeal, 7 Ir. Ch. 523 (1858). (1) England v. Tredegar, i Bq. 344, 35 Beav. 256, 35 L. J. Ch. 386, following Orohatt v. Ford, 25 L. J. (Ch.) 552, 4 W. R. 426, 2 Jur. N. S. 436, in preference to Bushnan v. Morgan, supra. (m) Fernie v. Maguire, 6 Ir. Eq. 137. Fo^-d v. Ryan, 4 Ir. Ch. 342. (n) AUeyne v. Darcy, 5 Ir. Oh. R. 56 (1855). (0) Stokoe V. Cowan, 29 Beav. 637, 30 L, J. Ch. 882, 4 L. T. N. S. 695, 9 W. K 801. (p) Sargeant's Trusts, 7 L. R, (Ir.) 66. (2) Steen v. Niagara Fire Ins. Co., 42 Am. Rep. 297, 89 N. Y. 315. ( 34; ) CHAPTER XX. COMPANIES. The mode in which an insurance company is con- What depends stituted determines the manner in which it shall sue "om'^^ny's °^ and bo sued, and the character of the liability of its oonstitution. members. But whatever the means by which such company is constituted, its powers and liabilities, and tho method of its management, are peculiar to itself, and are determined by the particular provisions of the statute, charter, or other instruments under which the company is created. These provisions are important to shareholders, policy-holders, and all other persons having dealings with the company; because by the rogistratiou now necessary under the Companies Act, 1863, all persons are deemed to have notice of them. Insurance offices may be classified irrespectively of oiassiflcation. tho manner and nature of their constitution as follows: — I . Proprietary offices which are joint-stock partner- rropristary. ships, with n subscribed or guaranteed capital, the partners wherein absorb the whole profits of the under- taking. 2. Offices set up for profit to the shareholders, but Mixed, in which also give the policy-holders certain advantages hoiders'^shiu^' in the way of a share of the profits, usually called a P'"^'"' bonus or a periodical rebate in the amount of their premiums ; but they do not admit the policy-holders as partners, nor render them liable as such. 348 THE LAWS OP INSURANCE. Mutual. These mixed companies are the most common, in fact the late Lord Justice James said, " Every life assurance society is substantially and materially a mutual life assurance society. The method by which it is intended to provide for the payment of the sums secured by the policies is by investing the premiums and accumulating the money so as to form a fund out of which the claims are ultimately to be satisfied. The capital of the shareholders and the sums which the shareholders undertake and make themselves liable to pay, are in truth only a guarantee against the possible contingency of the accumulated insurance fund being found insuffi- cient" (a). 3. Offices established for mutual insurance, where the policy-holders are themselves the proprietors, and where the principal object of the society is rather the protection of its members against loss than the acquisition of profit. It was therefore doubted whether such an association required registration under the Joint Stock Companies Act, 1862, but the necessity for registration has since been judicially determined (6). Friendly societies are also for the purpose of mutual insurance. Companies under special statute. Kind of companies. 4. Offices set up by the State to encourage provi- dence and thrift, viz., the Government Insurance and Annuity Department, and the special modes of insurance provided by Acts of Parliament for departments of the Civil Service, and in India (c). Except those risks which are taken by underwriters at Lloyds', the whole of the insurance business other (o) Gram's Case, i Ch. D. 321, 45 L. J. Ch. 321, 33 L. T. N. S. 766. (5) Se Padstow Total Loss Association, 20 Ch. D. 137, 51 L. J. Ch. 344, 45 L. T. N. S. 774, 30 W. R 326. (c) BoMero v. S.E.I.G., 11 H. L. C. 405. Underwood's case, 4 L. R. 4 H. L. 580. Edwards v. Warden, i A. C. 281, 9 Ch. App. 495. Robertson's case, 12 Moore P. C. 400. Davies v. Trustees of Madras Fund, 12 Moore P. 0. 403 n., 7 Moore Ind. App. 364 n. COMPANIES. 349 than marine is carried on by companies most thougli not all of which are incorporated. The continuousness of corporate existence is favourable to the assured (d), and the business itself being reducible to a routine and system is especially suitable for a joint-stock partnership (e). The various companies which carry on insurance business have been constituted in different ways, and the form and mode of their constitution is still to some extent important as determining — (i) rights inter se of the joint stock or shareholders, (2) the powers and mode of contracting given and prescribed to the company, (3) the extent of the shareholders' liability on the contracts made, (4) the manner of suing thereon, (S) the means of enforcing judgment thereon. The modes in which existing insurance companies Formation of have been formed are — companies. A. By deed of settlement. B. By royal charter. c. By special statute. D. By letters patent. E. Under the various Companies Acts. These different modes of creation produced — (i.) Mere common-law partnerships. (2.) Corporations. (3.) Quasi corporations, suing by and being sued in the name of one of their members (/), or a registered public officer. (d) See Adam Smith's Wealth of Nations, p. 340 edn, by M'Culloch, Bk. V. 0. I, a I. (e) 2 Stephen Comm. 126 (8th ed.) (/) 7 Wm. IV. and I Vict, a 73, s. 3. 3S0 THE LAWS OF DfSUEANCE. Eoyal Exchange and London assurances. (4.) Joint-stock compames registered and incor- porated under the Companies Acts. The first charters granted to insurance companies were given under permission by statute. These charters were in the nature of monopolies, whence the need to apply to Parliament for authority to grant them. Few charters seem to have been granted to any insurance company by the Crown independently of Parliament (y). By 6 Geo. I. c. 1 8, Parliament empowered the king to grant two charters, constituting two marine insur- ance corporations (h), and forbidding all other corpo- rations for marine insurance. The purpose of this Act was to create two solvent insurance companies, and to suppress all bubble companies and bodies presuming to act as corporate bodies without legal authority (i). The corporations remain, but their monopoly has been removed. Constitution The Special statutes under which certain insurance Specy^"^" associations are formed have the effect of charters, statutes. aQ(j clothe such companies with all the attributes of corporations. Very few insurance societies have actually been formed by a private Act; but many societies already existing, but unincorporate, have found it advantageous to apply for and to obtain incorporation, more especially those domiciled in Scotland. Letters Patent Act, By the Letters Patent Act(^)the Crown is empowered. (gr) 6 Geo I,, 0, 18, preamble of 6 Geo. IV., c. 37. (h) S. 12. (i) S. 18. (*) 7 Wm. IV. and I Viot. c.'7z. COMPANIES. 351 on tte application of any company formed by deed of partnership, to grant to sucli a company letters patent, authorising it to sue and be sued by an officer named for the purpose, and by such letters patent to limit the liability of the members of. the company. The company, on obtaining this privilege, comes under certain regulations as to the registration of various particulars connected with its constitution and other matters pointed out in the Act. This Act is not compulsory but permissive, granting a privilege to those who choose to apply for it. It is still in force, but applies only to companies formed before September 8, 1844, when the Joint Stock Com- panies Act was passed {I). " The leadinsf purpose of the first Joint Stock object of • A / \ in Joint stock Companies Act (rn) was to enable a permanent Companies company, consisting of changing shareholders, to make '^ ' binding contracts, and sue and be sued, and do all the acts necessary for carrying on a trade. The preamble expresses an intention to invest them with the qualities and incidents of corporations with some modifications, and subject to some provisions and regulations " (n). Everv assurance company or association for the 7, 8 Vict. c. e ■ T . , 10. §2, 1844. purpose or assurance or msurance upon lives, or against any contingency involving the duration of human life, or against the risk of loss or damage by fire or by storm or other casualty, or for granting or purchasing annuities on lives, and every institution enrolled under any of the Acts of Parliament relating to Friendly Societies, which institutions shall make assurances on lives, or against any contingency involving the duration (I) Taylor on Joint Stock Companies, p. 910 (1847). (m) 7 & 8 Vict. 0. no. (n) Prime of Wales Ins Co. v. Harding, E. B. & E. 183, 217, 27 L. J. (Q.B.)297, 4 Jur. N. S. 851. 352 THE LAWS OF INSURANCE. 7, 8 Viot. C. no, § 2, of human life to an eztent upon one life, or for any one person to an amount exceeding ;^200, whether such companies, societies, or institutions shall be Joint Stock Companies or Mutual Assurance Societies or both, was, if established after the commencement of 7, 8 Yict. c. no, s. 2, bound to register thereunder. Quasi corporations. Insurance companies registered under 7, 8 Vict. c. 1 1 o, partake of corporate powers with several incidents of partnership, and have been termed quasi corpora- tions (0). But the privileges of the statute are accorded only to those registered under the statute ; and if registration be made as a company, they cannot afterwards register so as to lead the world to suppose them a corporation (p). Company under 7, 8 Viot. c. no. A company formed and duly registered under the first Joint Stock Companies Act (7, 8 Vict, no) for the purpose of insurance, and also for the granting of endowments, annuities, assurances during sickness, and loans, is an insurance company within 20, 2 1 Vict. c. 14, s. 27, and can sue without being registered under the Joint Stock Companies Acts, 1856-57 (q). Companies Certain insurance companies were excepted from the Mcepted from gj.g{; Jq^^^ gtock Companies Act — ( i .) In respect of the time of their formation, if their formation was begun before Sept. S, 1844, they could not be completely registered or brought (sec. 59) within the Act(r); (2.) If incorporated by Charter or Act of Parliament ; or (3.) If authorised by letters patent or statute to sue and be sued. And companies formed after the Act could, though within the definition of a company therein. (0) Ridley v. Plymouth Co. 2 Ex. 711, Parke, B, Brice'a Ultra Virei, p. 12. (p) Beg. V. Whitmarth, 19 L. J. Q. B. 185. (j) London cmd Provincial Provident Society v. Ashton, 12 C. B. N. S. 709, 723, n W. E. 152, 7 L. T. N. S. 53°. See also 25 & 26 Viot. 0. 89, s. 3. (?•) Taylor on Joint Stock Companies, 115. COMPANIES. 3 5 avoid the need of registering thereunder by obtaining a charter, private Act, or letters patent. In consequence of this exclusion of assurance com- panies, many have since had to go to Parliament for private Acts. The Companies Act, 1862, enforces registration on Companies those companies which have been registered under the un^dl/7^ s older Act 7, 8 Vict. c. 1 10 (s), and the effect of such ^°*-^„'gt registration is exactly the same as if the company had re-regiater. been formed and voluntarily registered under the later Act (t). Every insurance company formed since 2nd Nov. What 1862 must be registered under the Act of 1862 (u). musH'^ster under Companies which ought to have, but have not regis- 2°?'^85'®^ tered as required, are under the disabilities of section 210, and cannot sue at law or in equity, nor even pre- sent a petition for their own winding up (v). Broadly speaking, by the Companies Act, 1862, section 22, the legislature intended that all commercial undertakings, consisting of more than ten persons, started after the commencement of that Act should be registered. And mutual insurance associations, providing that the liability should be several only, are commercial undertakings for the acquisition of gain within the Act, and must be registered under it; and if not so registered are illegal associations, and cannot be wound up under section 199 of the Act (x). (s) 25, 26 Vict. i;. 89, s. 209. (t) Ramsay's Case, 3 Oh. D. 388, 46 L. J. Ch. 41 1, 35 L. T. N. S. 654, 25 W. R. 279. (w) 25, 26 Vict. c. 89, s. 4, Expte Hargrove, 10 Ch. App. 545 note, re Padstow Association, 20 Ch. D. 137, 51 L- J. Ch. 344, 45 L. T. N. S. 774, 30 W. R. 326. (r) Be Waterloo Life Co. 31 Beav. 586, 32 L. J, Ch. 370, 11 W. R. 134, 7 L. T. N. S. 459, 9 Jur. N. S. 291. Hvans v. Hooper, I Q. B. D. 45, 33 L. T. N. S. 374, 24 W. R. 226. (x) Cory and Hawksley's Case, 3 Ch. D. 522, 32 L. T. N. S. 525, 23 W. R, 939, Jessel, M. R, Z 3S4 THE LAWS OF INSUKANCE. Deeds of gettlement open to inspection. Effect of registration. What ia an insurance company under Companies Act. What is an unregistered company. All companies registered under the Companies Acts, 1862, deposit with the registrar copies of their deeds of settlement, and thereby the same are made available for public inspection. All companies not so registered are bound to print their deeds of settlement, and to supply them on de- mand to every shareholder or policy-holder for not more than 2s. 6d. (y) The eflFect of the compulsory registration aforesaid is to put the insurance company so registering within all the rules and regulations of the Act of 1862. For the purpose of that Act, any company which is not concerned solely in the business of insurance, but carries on therewith any other business or businesses, is deemed an insurance company (s). Any company registered under other Acts ante- cedently to the passing of the Act of 1862, is an unregistered company within section 199 of that Act. In Bowes v. The Scype Life Insurance Company {a), the Act was applied to a company formed in 1852, and registered under the Act of 1844 (7, 8 Vict. c. 1 10), but which had ceased to carry on business in 1855. Difference The distinction between corporation and unincor- ''or^onSe and po^'^tio^i seems now immaterial (6). The only distinc- uninoorporate tion according to Truro, L. 0. (c) between unincorporated companies constituted by deed and corporate asso- ciations constituted by Act, is that regulations in the latter, altering the legal character or incidents attached to certain property, are valid in the other, but only binding between the parties. (y) 33. 34 Vict. 0.61. (z) See 3. 3. (o) 11H.L. 0.389. (J) Cotton, L. J., in Aahworth v. Murm, 15 Ch. D. 363, 375, 28 W. E. 96s, S° L. J. Oh. 107. (e) Myers v. Perigal, 2 Be G. M. & G. 599. COMPAOTES. 3 5 ; " It is obvious " (said Lord Wensleydale) " that the Eeason for law as to ordinary partnership would be inapplicable to b'^aJatute'"^ a company consisting of a great number of individuals per Lord contributing small sums to the common stock, in which case, to allow each one to bind the other by any con- tract which he thought fit to enter into, even within the scope of the partnership business (d), would soon lead to the utter ruin of the contributories. On the other hand, the Grown would not be likely to give them a charter which would leave the corporate fund the only fund, to satisfy the creditors. The legislature then devised the plan of incorporating these companies in a manner unknown to the common law, with special powers of management and liabilities, providing at the same time that all the world should have notice who were the persons authorised to bind all the shareholders by requiring the co-partnership deed (of settlement or articles of association) to be registered (e) and made accessible to all, and besides including some clauses as to the management. All persons must, therefore, AU persona take notice of the deed and the provisions of the Com- contents'of ° panies Acts in force for the time being. If they do ^^^^ *"^ ■*■«*' not choose to acquaint themselves with the powers of the directors, it is their own fault, and if they give credit to any unauthorised persons, they must be con- tented to look to them only, and not to the company at large. The stipulations of the articles of association or the deed of settlement which restrict and regulate their authority are obligatory upon those who deal l>ireotor3' acts . , , '' . .? ■' -^ , ultra vires With the company, and directors can make no contract not binding. so as to bind the whole body of shareholders, for whose protection the rules are made, unless they are strictly complied with. The contract binds the person making it, but no one else. Those provisions which give to Discretionary the directors discretionary powers of management do directors. not affect strangers, and the shareholders are bound by (d) Ernest v. Nicholls, 6 H. L. C. 401, Wensleydale. Balfour v. Ernest, 5 C. B. N. S. 601, 28 L. J. 0. P. 170. (e) Companies Act, 1862, 3S6 THE LAWS OF INSURANCE. Effect of directory conditions. the exercise of the discretion which they have consented to give. Other stipulations are directory merely, and do not constitute conditions to the exercise of the powers, but they form the subject of an action by the shareholders against the directors for their breach of covenants expressed or implied in the deed," &c. The doctrine as above laid down by Lord Wensley- dale (/) has been steadily followed, but with a tendency to treat matters as directory which Lord Wensleydale would probably have considered essential. Informal affixing of company's se&lby director. VVhat provisions directory. Thus in Prince of Wales Assurance Company v. Harding (g), where a policy was made, sealed, and executed by three directors, as required by the deed of settlement, but without an order for the affixing of the common seal, and was signed by three directors and the manager, as also required, the Court of Queen's Bench held that the simple omission of such a formality did not annul the deed, the provision being merely directory. And generally all " formalities, &c. which relate merely to the internal arrangements" (K) of the insurance company will be deemed directory. And on this principle a policy issued by persons purporting to be directors has been held binding when the real directors could have obtained, but did not seek an injunction (i) against the ostensible directors. Powers to _ grant polioiea. The chief powers taken by an insurance company are — ( I ) to grant policies, &c., against particular risks, and accept premiums therefor, (2) to invest the premiums (/) Ernest v. NichoUs, 6 H. L. C. 401. {g) E. B. & E. 183, 27 L. J. Q. B. 297, 4 Jur. N. S. 851. (h) See re Athenaaum expte Eagle Co., 4 K. & J. 549, 27 L. J. (Oh.) 829, 6 W. R. 779. Gordon v. Sea Fire Co., i H. & N. 599, 26 li. J. Ex. 202. JBraumtem v. Accidental Death Co., i B. & S. 782, 31 L. J. (Q. B.) 17, S L. T. N. S. SSo, 8 Jur. N. S. 506. (i) Be County Life, 5 Ch. App, 288, 39 L. J. (Ch.) 471, 2 L. T. N. S. S37, 18 W. K. 390. COMPANIES. 3 ; so received in manner most profitable to the company Invest and compatible with their obligations as insurers. P'^'"™'"^- The other powers taken are merely incidental thereto, and if not contained in the deed of settlement may often be implied therefrom. Companies must confine themselves to business in Companies accordance with their declared purpose. For example, go^orm To^ a proprietary company being a joint-stock partnership, its oou- the whole of the profits of which are divisible amongst the shareholders, cannot grant a policy participat- ing in profits, nor can a mutual company grant a policy creating no liability (k). But by the constitu- tion of the company or statute special means may be provided for shifting a company from one class to another. In a mutual insurance association, policies cannot Mutual be issued to non-members at special or any rates, company^ai unless C I ) the rules of the association so provide, or i^™^ polioie ^ ' , , ^ ' to non- (2) some means of agreeing to such issue be provided members, by the rules, and the method there indicated be properly followed (J). If such policies are issued ultra vires, the policy- Policies ultr holders are not creditors of the association at all, since not bind the contract, not being within the scope of the agent's <'°™P™y- authority, does not bind the association at all (m). The persons who enter into idtra vires contracts with an insurance company have no right to complain. They must have had notice of the nature of the body which was contracting with them, and of course notice of the rules and regulations which form the constitu- tion of that company (n). {k) Cory and Hawksley's Case, 32 L. T. N. S, 525, 23 W. E. 939, 34 Ch. D. 522. (I) lUd. (to) Ibid, (n) Ibid., and see Ernest v. NichoUs, 6 H. L. C. 407. 3S8 THE LAWS OF INSOEANCE. How oontraota made. The contracts of an insurance company must be in the form prescribed by its constitution (p). Contracts incidental to the management of the company need not be by writing or under seal (q). Contracts of insurance must not only be evidenced in the manner required by the constitution of the company ; they must also undertake permitted risks, and must be in the form prescribed, if any (r), and contain the limitations of liability if any required by such constitution. In Canada In Canada all the courts held that for an insurance seal not °* Company to set up the want of a seal (prescribed as pleadable. necessary by its Act of Incorporation) is such a fraud as a court of equity ought to prevent (s). Policy void, I^ ^^ older case, while allowing that a certain policy insurers bound -^yag yoid because not in the statutory form, the court to issue , fresh one. deemed the insurers bound to issue a valid policy of proper date (t). Manager granting policy ultra vires. Where an insurance company is incorporated by public statute, the power of its manager in relation to insur- ance must be taken to be known by persons insuring with the company. And if he make policies outside the scope of his authority, they will not bind the company. And if by the special Act the company can only bind (p) Montreal Insurance Oo. v. M'QUlivray, 13 Moore P. C. 89, 8 W. R. 165. (j) Companies Act, 1867 (30, 31 Vict. c. 131, s. 37). Beer v. London ami Paris Hotel Co., L. R. 20 Eq. 412. (?•) See in Taunton v. Boyal, 2 H. & M. 13S, 33 L. J. Ch. 406, 10 L. T. N. S. 156, 12 W. R. 549. Railway Passengers' Assurance Co. Act, 27, 28 Vict. 0. oxxv. schedule. (s) London Life v. Wright, 5 Canada S. C. 466. Wriahi v. Sun Mutual, 29 IT. C. (C. P.) 221. («) Perry v. Newcastle Fire Co., 8 U. C. (Q. B.) 363. See Fowler v. Scottish Equitable, 28 L. J. Ch. 225, 32 L. T. 119, 4 Jur. N. S. 1169, 7 W. R. 5. Prince of Wales Ins. Co. v. Harding, E. B. & E. 183, 222, 27 L. J. Q. B. 297, 4 Jur. N. S. 851. COMPANIES. 3 itself by policy, and not by parol contract of insurance, the power of the manager is restricted by this limitation of the power of the principals (u). Speaking generally, an insurance company, like any other company, is bound by any deed under its seal (v), unless fraud (x) or illegality be established (y). Illegality Effect of ul will include ultra vires acts, since corporations and ^'* °'''*^' analogous bodies being creatures of law, cannot lawfully go beyond the four corners of their constitution. But mere informalities in the exercise of their duties by directors will not invalidate a policy (z), for a deed of Of informal settlement and a private Act of Parliament constituting a company, are to be construed as a partnership deed. To violate them may be breach of trust as between the directors and the shareholders, but acts not done accord- ing to them may bind the company (a). Where the articles of association of an insurance Appointme company appointed a solicitor to the company who was articles' o? to transact all their legal business, and not to be remov- association, able except for misconduct, it was held not to amount to an agreement to employ him, the articles being a con- tract between the shareholders alone, and so far as the solicitor was concerned, res inter alios acta. Lord Cairns doubted whether the clause was not void as against public policy (5). The solicitor of an insurance company cannot in Solicitor cannot clai — ~~ for coats (u) Montreal Assurance Co. v. M'Qiaivray, 13 Moore P. 0. 87, 125, ^' ^™*'^^ 8 W. R. 165. oreaitor. (v) Agar v. Aihenmum Ins. Co., 3 C. B. N. S. 725, 27 L. J. C. P. 95, 6 W. R. 277. (x) Athenceum Ins. Co. v. Pooley, 3 De G. & J. 294, 28 L. J. Ch. 119, 5 Jur. N. S. 129. iy) Cory and Hawksley's Case, 3 Ch. D. 522, 32 L. T. N. S. 525, 23 W. R. 939. (z) Prince of Wales Ins. Co. v. Harding, E. B. & E. 183, 27 L. J. Q. B. 297, 4 Jur. N. S. 851. (a) BUI V. Darenth Bailxoay Co. I H. & N. 305. Bargate v. SUHridge, S H. L. C.'297. PriMce of Wales Ins. Co. v. Harding, supra. Sperings' Appeal, 10 Amer. Rep. 684, 71 Peuu. St. 11. (6) Ely V. Positive Asswance Co., 1 Ex. D. 88, 45 L. J. Ex. 451, 34 L. T. N. S. 190, 24 W. R. 338. See Summers v. Eldston, 18 Jur. 21 (H. L.) 36o THE LAWS OF INSURANCE. Debentures invalid when in fraud of company. Person who is party to act ultra vires cannot claim. If risk taken ultra vires assured can't recover. respect of his bill of costs claim to be treated as an outside creditor and be paid in full, for he must be taken to have the fullest notice and knowledge of the constitution of the company and the limitation placed thereby on the liability of the shareholders. If he is a shareholder, the case is still stronger (c). If debentures are issued within the powers of an insurance company, but in fraud of the company, they will be invalid in the hands of a bond fide purchaser without notice, provided that the shareholders, on be- coming aware of the transaction, do not acquiesce or do other acts which would raise an estoppel (d). Whenever any party dealing with an insurance company knowingly combines with the directors to do any act ultra vires to the prejudice of the share- holders, e.g., to throw upon them unlimited liability when the directors are required so to frame policies as to confine the remedy of the assured to the capital and funds in the hands of the company, the shareholders might very fairly and reasonably deny their liability on that policy. But it would be unjust to allow them to take advantage of an irregularity of the directors (who are denominated their agents), although they can- not show that they have been in any way prejudiced by the irregularity, and the assured cannot be charged with any fraud or impropriety (e). The risks undertaken by a contract of insurance must be within the powers given to or taken by the company. If the company is not authorized to take the particular class of risk, the assured cannot recover for a loss by that risk in any case where he has notice, constructive or express, of the powers of the company. (c) Sadler's Case, i6 S. J. 571, (Alb. Arb.) Cairns. (d!) Athermum v. Pooley, 3 Ue G. & J. 294 (1858), 28 L. J. Ch. I19, I GiflE. 102. (e) Prmce of Wales Ins. Co. v. Harding, E. B. & E. 183, 216, 27 L. J. Q. B. 297, 4 Jur. N. S. 851. Agar v. Athencmm Ins. Co., 3 0. B. N. S. 725, 27 L. J. C. P. 95, 6 W. R. 277. COMPANIES. 36: The Royal Exchange Assurance, for instance, could not under its original Act insure on vessels engaged in inland navigation, nor could the company do so until empowered by 41 Geo. Ill, c. 57. The courts have always been careful to prevent the MisappUoatio application of the moneys of the shareholders who con- °egt"ained bv tribute to joint-stock undertakings to any purpose other injunction, than that which is legitimately the purpose and object of the association ; and if a case arises where the managers of such an undertaking so apply its money, any shareholder may obtain an injunction restraining them therefrom (/). But if the company has power to grant policies power to pay against a certain risk, and a loss occurs by such risk to p° ^ °°* ^'"'' property on which a policy has been granted excepting such risk, it would seem that the general body of share- holders could waive such exception, and that the directors of an insurance company usually have suffi- cient discretion given them in management to enable them to waive the exception and pay the loss, if it seems in the company's better interest to do so. To do so is, of course, a species of advertisement. The principle seems to be that what the company as a whole can do, its general agents can likewise do (g). Powers of investment provided by the constitution Powers of of the company may be varied or amended, but until amended, cannot be exceeded. Powers to lend on the security of shares in the com- pany or its own policies, or on mortgage, must be especially inserted. And the latter, in the case of corporations, requires special provisions, owing to the (/) Taunton V. Royal Insurance Co. i H. & M. 135, 33 L. J. Ch. 406, 10 L. T. N. S. 156, 12 W. R. 549, and cases there cited. See per Cran- worth Oo. in Eastern Counties R. v. Hamhes, 5 H. L. C. 331, 348. {j() Taunton v. Royal, swpra. 362 THE LAWS OF INSURANCE. Shareholder's liability aSected by nature of company. Mortmain Acts, since by foreclosure they may become owners of and dealers in land Qi). The royal exchange could not advance money on the security of freehold, copyhold, or leasehold property, until empowered to do so by 6 Geo. IV. c. 36, which Act enables it also to foreclose, but not to hold for more than two years, except in case of a difficulty as to the title ; and it was allowed to dispense with a license in, mortmain. An investment clause, empowering the directors of an insurance company to buy, sell, and resell life, re- versionary, and other personal estates and interests, is not wide enough to include dealings in stocks and shares in the face of controlling words, such as generally to carry on the business of life insurance and of an annuity, endowment, loan, and reversionary interest society (%). Nor can an insurance company take shares in a building society. " A corporation proposing to engage in any transac- tion not within its express or implied power, may be restrained from so doing or so continuing" Qc). A shareholder's liability is affected by the constitution of the insurance company in which he holds. If it is a corporation other than a company incorporated under the Joint-Stock Acts, he is under no individual liability beyond his liability to the corporation body of which he is a member. If it is a company under the Com- panies Acts, he is liable only to the amount limited by the memorandum of association. If a company is registered as unlimited, it may be re-registered as limited under 42, 43 Vict. c. y6. (h) Eoyal Bank of India's case, 4 Ch. App. 252,-260, Selwyn, L. J. (i) Athenceum v. Pooley, 28 L. J. Ch. 119, 3 De G. & J. 294, i Giff. 102, 5 Jur. N. S. 129. (i) Brioe's Ultra Yvres, 178. COMPANIES. 363 Where the company is not a corporation, or brought within the Companies Acts, it is a common-law partner- ship, with the ordinary incidents thereof, unless any special provisions in its deed of settlement or the policies restrict the liabilities, and in their absence the liability of each shareholder is unlimited, as in the City of Glasgow Bank. Executors of a deceased shareholder, who has Exeoutorsof transferred his shares before liquidation, cannot, nor eoSributoriea the survivor of them, be placed on the list of contribu- tories (I). (i). In respect of debts due at the time of transfer, as to which the liability is limited by deed of settle- ment or otherwise. (2.) In respect of debts as to which such executors are only in the position of sureties for transferences of the shares. (3.) For the costs of liquidation. "When shares stood in the joint names of two persons where without beneficial ownership, and one was dead, his ^^^™oJ" executors were put on the list of contributories, only truatees. iu respect of the liabilities up to the time of his death (m), on the ground that the testator was liable inter socios (by signing the deed of settlement) on the covenant to pay calls therein contained. But the executors of a man who in 1846 applied for and paid the deposit on shares, and was registered in respect thereof, but never signed the deed of settle- ment, were held not liable to contribute in 1872 (n). {I) Clarke's executors' case, Reilly (Alb. Arb.) 223, 16 Sol. J. 752. (m) Kirby's case, Reilly (Alb. Arb.) 67. (n) M'Kenzie's executors' case, 18 S, J. 223 (Bur. Arb.) 364 THE LAWS OF INSURANCE. Secretary of The Secretary of an insurance company to whom beSg™^ shares in the company were transferred to be held by shares^inV^ t ^^'^ ^^ trustee for the company, was held liable to con- fer company tribute in respect thereof, but entitled to prove for contributory, indemnity. It would have been otherwise if the act indemnity "^ *° constituting him such trustee was to his knowledge ultra vires (0). Executors of When executors of a shareholder claim the benefit who have of Statutory advertisement for creditors (by Lord St. stZtory Leonard's Act, 22, 23 Vict. c. 35, s. 99), they will advertiaement gtiU be entered on the list of contributories, with a note for creditors, . , . , . ,• ^■^ t- •■, • e- liable to of their claim as to full distribution of assets, contribute. Vendor of A man whose name is on the register of a company amalgamated which has been amalgamated with another to which he HaU^Tf^on ^^^ ^°^^ ^^^ shares, is still liable as a contributory register. if his name remains on the register even though the purchasing company had undertaken to have it removed. He will of course have a remedy over for breach of the undertaking (j?). So also if he has accepted shares in the transferee company instead of his old shares, if his name is still on the old register in respect of them {q). Executor who If an executor does not sell his testator's shares to testator's some one whose name can be put on the register shares to some instead of the testator, but receives back from the capable of transferee company the amount paid on the shares, re^giste^-'^stiil ^^"^ delivers up the share certificates to them, he will liable. not be discharged from liability on those shares as a contributory to the transferor company, unless all outstanding creditors thereof have been settled with, or have assented to the transfer (r) (o) Easum's case, ReiUy (Alb. Arb.) 170. (p) Lee's case, Eeilly (Alb. Arb.) 3, Buckley, 1st ed. 352, 353. Nipholl's case, Reilly (Alb. Arb.) 40, executor of deceased shareholder, (g) PownaU's case, Reilly (Eur. Arb.) 8. (r) Lancey's case, Reilly (Bur. Arb.) I3, COMPANIES. 36 A contributory wten called on is entitled to have Contributory deducted from the calls made on him the amount of ^"^'^^omia bonuses appropriated out of profits to his shares and deducted -,. , :r , . irom calls. credited thereon (s). Forfeiture of his shares for non-payment of call will Liability not relieve him from contributing in the winding "taJSng up (t). forfeiture for '^ ^ '* not paying calls. If a shareholder has taken steps to transfer his Transfer mus shares before winding up, but by no fault of the shareholder " directors has failed to complete them, he must contri- ™^^*., , . contribute, bute (m). So if they disapprove the transferee (y). If the shareholder has liquidated, and his trustee Liquidating disclaimed, neither can be made a contributory if the ^hose trii9te( company has proved in the liquidation for unpaid disclaimed. calls (x), or could have so proved, but has failed to do so, since their claim is not incapable of being fairly estimated within the Bankruptcy Acts (y). Where free shares fully paid up were distributed Promoter's amongst the promoters of an insurance company, the patd^earry ^ recipients thereof were held liable to contribute in the liability to "^ . contnbute. winding up of the company, as the transaction was a fraud on the other shareholders, but without prejudice to an indemnity from the directors who gave the shares (z). Where the articles of association provide that no Director liab one shall be eligible as a director who does not hold a j° respect'of certain number of shares in his own right, and that *^® number 1 any director who ceases to hold the requisite number necessary to qualify. (s) Cathie's case, Eeilly (Bur. Arb.) 27. {t) Bridger's and Neil's case, 4 Ch. App. 266. (a) Read's case, Eeilly (Eur. Arb.) 19. {v) Lloyd's case, Reilly (Eur. Arb.) 35. {x) Brown's case, Reilly (Bur. Arb.) 32. ly) Re Mercantile Mutual Marine, 25 Ch. D. 415. (z) 1857, Darnell's case, 3 Jur. N. S. 803. 366 THE LAWS OF INSUKAJSTCE. shall be disqualified, any one who is elected and acts as a director without qualifying, will be liable as a contributory to the number of shares which he ought to have held, since by acting he enters into an implied contract to take the qualifying shares (a). And where the brother of a managing director executed the deed of settlement in respect of part of a number of shares improperly given his brother by the directors, he was held liable as a contributory in respect of such part (&). Shareholder fraudulently induced to take shares. The same principle applies as between an insurance company and its shareholders. Where the latter have been fraudulently induced to take shares, they will have no defence to an action for calls thereon unless they have repudiated the contract and done no act to make themselves liable as shareholders after discover- ing the fraud. But till the shareholder has succeeded in severing his connection with the company and remains on the register, he will be liable with the rest to contribute within the limits prescribed in the con- stitutive instruments to the payment of claims on the company (c). With regard to the holding of land by insurance Holding Two questions. Companies two questions arise— (i.) Whether a company can hold land at all? (2.) Whether, having regard to the statutes of mort- main, shares in a company holding land can be devised or bequeathed for charitable purposes ? (a) Stephenson's case, 45 L. J. (Ch.) 488, Jessel, M. R. (5) Lord Claude Hamilton's case, 8 Ch. App. S48, 42 L. J. (Ch.) 465, 1852, Holt's case, 15 Jur. 369, Cranworth, V.-C. (c) Deposit and General Life v. Ayscougli, 6 E. & B. 761, 26 L. J. Q. B. 29, 2 Jur. N. S. 812. See Partridge v. Albert, 16 S. J. 199, Caims, (Alb. Arb.) COMPANIES. 36; With respect to question (i), the power to hold Power to lands may, speaking generally, be said to depend upon "■" ' the powers conferred by the instrument constituting the company (d). Where a company is registered under the Joint Stock Companies Act, 1844 (7, 8 Vict. c. 1 1 o), it may by sec. 2 5 purchase and hold lands, and the power of a company registered under the Act of 1862 to hold land is unrestricted (e). With respect to question (2), shares in a partner- Shares in ship holding land, such partnership not being a joint- partnership stock company, are an interest in land under the J^ortmain Mortmain Act, therefore cannot be disposed of by will Act. to charitable purposes. But shares in a joint stock-company holding land, shares in whether the company be corporate or unincorporate, are Companies, not within the statutes of mortmain, and will therefore pass by will to a charity (/). The distinction between the case of a joint-stock Beason for and a non-joint-stock partnership is this, that in the ^ '^ '°° ^° case of a joint-stock company the intent and meaning of the partners is that the partnership is to be in the nature of a corporation, and intended to have perpetual existence, with fluctuating bodies of members from time to time, just like a corporation. No partner is ever supposed to have anything to do with the land except as one of the society through the machinery provided by the Act or deed of settlement, and is never intended to have anything to do with the land in any shape or form, except to get the profits from the land, or from the business of which the land is a part, and it is always intended that every share should pass in the market as a distinct thing, and in point of bene- ficial ownership wholly unconnected with the land, or (d) Brioe, Ultra Vires, 73, (e) 25, 26 Vict. c. 89, SB. 18-21. (/) AshwoHhv. Mwrrn, 15 Ch. D. 363, 50 L. J. Ch. 107, 28 W. R. 965. Myers v. PerigaU, 2 De G. M. & G. 599, 25, 26 Viot, c. 89, s. 22, 368 THE LAWS OF mSUBANCE. with the real assets of the partnership property of the company (g). on real^estSr*^ ^ policy Secured on the property of a company of company which consists partly in real estate is not so connected Mortmain with land as to make a gift of the policy to a charity ■*■''*• invalid under the Mortmain Act, whether the policy- holder is or is not a member of the company (A). All life insur- j^ \\^q insurance associations registered or unregis- are under Act tered under the Companies Acts, corporate or unincor- ' ^°" porate, except those registered under the Friendly Societies Acts, are within the Life Assurance Companies Act, 1870 (i). The business of life insurance companies is to a certain extent regulated by special statutes, but fire insurance companies are under the ordinary companies law. Deposit by By the Life Assurance Companies Act, 1 870, sec. 3, of /'zolooo!'^^ every company commencing the business of life assur- ance within the United Kingdom, before it can get a certificate of incorporation, must pay into the Chancery Division of the High Court the sum of ;£^2 0,000 (h). This sum is to be invested in one of the securities usually accepted by the High Court for the investment Investment of funds placed from time to time under its administra- thereof. tioio.. The company making the deposit is to choose the particular security and to receive the income there- from (Z). And said sum in court is to be returned to the company so soon as the life assurance fund accumulated out of the premiums reaches ;£^40,ooo (m). (g) Per James, L. J.,Ashworth v. Mmm, 15 Ch. D. 363 at 368, 50 L. J. Ch. 107, 28 W. R. 965. (h) March v. Attorney-Oeneral, 5 Beav. 433. (*) 33> 34 Vict. c. 61, s. 2. W 33. 34 yict' "■ 6i> s. 3i as amended by 34, 35 Vict. 0. 58, s. r. (l) The object of the section is to prevent bubble companies being created simply for sale, and to test honajides, 202 Hansayd 1 1 71. (»») 34i 35 Vict. c. 58, s. I. COMPANIES. 36c Once the ;£'2 0,000 is paid into court, all orders with respect to paying the same into or out of court, and the investment or return thereof, and the payment of the dividends and interest thereof, may be made, altered, and revoked by the like authority and in the like manner as orders with respect to any other money to be paid into or out of court, but subject to any rules made or to be made by the Board of Trade as to the payment and repayment of the deposit, the invest- ment, or dealing with the same, the deposit of stocks, or securities in lieu of money, and the payment of the interest or dividends from time to time accruing due on any such investment, stocks, or securities in respect of such deposit (n). The coui't will only allow invest- ment in securities ordinarily accepted by the court. The deposit may be made by the subscribers of the is part of com- memorandum of association of the company, or any of ^^^^ ^ assets. them in the name of the proposed company, and such deposit upon the incorporation of the company shall be deemed to have been made by and to be part of the assets of the company (0). The said deposit shall, until returned unto the Part of life company or the depositors, be deemed to form part of "^ ^" the life assurance fund of the company (p). Very few life insurance offices seem to have been Deposit by founded since 1870. Some foreign companies, how- p^lJ! °°°^' ever, have commenced business here, and a question may be raised whether their foreign assets are to be estimated in deciding whether or not they must pay into court or not. From the wording of the statute they would seem bound in any case to make the payment as a preliminary to getting their certificate of (™) 3Si 36 Vict. c. 41, s. I. The Board of Trade rules were made in Aug. 28, 1872. (0) 35. 36 Vict 0. 41, s. I. (p) See in re Colonial Mutual Life Society, 21 Ch. D. 837, 46 L. T. N. S. 282, 30 W. R. 458. 2 A 370 THE LAWS OF INSURANCE. incorporation, and there is no mention of dispensing with the payment. On the other hand, there seems no reason why the life assurance fund accumulated out of the premiums should be within the jurisdiction. And this view would seem to prevail, as the New York Life Assurance Company appears not to have made any payment into court, and instead thereof has invested a large sum with English trustees, to form a security for policies issued to people in the United Kingdom (j). Keeping of The funds of all insurance companies, derived from aoTOunU^ life assurance and annuity contracts, must he carried to a separate account and fund, called the life assurance fund of the company ; and that fund is made by the Life assurance Act as absolutely the security of the life policy and separate trust annuity holders as though it belonged to a company securitv of ^* Carrying on only life business, and is not liable for any policy-holder, contracts of the company to which it would not have been liable had the company confined itself to life assurance (r). Security where This enactment does not diminish the liabilityTof madrbefore the life assurance fund for any contract of the compatiy August 1870. made before August 9, 1870. The holders of contracts can still have recourse to the fund./ which, so far as they are concerned, is not a trust fimfl for the policy-holders (s). ; Or where the This provision as to a life assurance fund does not mutua"^" apply to companies, the whole of whose profits are divided among the policy-holders, and whose policies bear on the face of them a distinct declaration of the liability of the policy-holders (t). Such a company is a pure mutual company, where all must contribute, and in the profits of which all (?) 33) 34 Vict. 0. 6r, s. 4, as amended by 35, 36 Vict. 0. 41, s. 2. (»•) 33. 34 Viet. c. 61, sched. 4, note. (s) 35. 36 Vict. c. 41, s. 2, and see 202 Hansard 1 173. (*) 33. 34 Vict. 0. 61, s. 4.] COMPANIES. 371 share. There was at the passing of the Act only one such not coming within the Friendly Societies Acts («). Every company issuing or liable on policies of Company assurance, or granting annuities on human life within balance-sheet the United Kingdom, not being registered under the ^a^^"*"^^ "^ Friendly Societies Acts, must — Annually at the end of its financial year prepare and deposit with the Board of -Trade a statement of its revenue account and balance-sheet for that year, which, if the company carry on life business exclusively, must be in the forms contained in the first and second schedules to the Act, and if concurrently with other business, must be in the forms contained in the third and fourth schedules thereto. Any of these forms may be altered by the Board of Trade on the application or with the consent of a company for the purpose of adapting them to the circumstances of such company, or of better carrying into effect the object of the Act, which has no preamble, but is to amend the law relat- ing to life assurance companies. Companies established before the Act must every ten Actuarial years, and every company established after the Act of^ompanUis' must every five years, or at such shorter intervals as affairs, may be prescribed by the instrument constituting the company, or by its regulations or bye-laws, cause an investigation to be made into its financial condition by an actuary, and shall cause an abstract of the report of Abstract such actuary to be made in the form prescribed in the fifth schedule to the Act. Besides the abstract of the actuarial report, and within nine months after the accounts of a company are made up for the purposes of the actuary's investi- gation, each company is bound to prepare a statement (M)_See 202 Hansard 11 73. 373 THE LAWS OF INSURANCE. Statement of of its life assurance and annuity business up to the business. ^^^^ ^£ ^^^-^ investigation. Those companies which have an annual investigation of their financial condition need not, however, send in an annual statement, but are left free to send it in when and how they like, at intervals not exceeding three years. The form in which the statement is to be made is prescribed by schedule 6 to the Act, but may be varied by the Board of Trade under the same circum- stances and with the same objects as the requirements of other schedules may be altered. Abstracts and AH these statements and abstracts must be signed be'si^ed'and ^J *^® chairman and two directors and the principal printed. officer managing the life-insurance business, and by the managing director, if any, and must be printed. (l.) The originals, with three printed copies, must be deposited with the Board of Trade within nine months of the date prescribed for preparation of the original, and the Board of Trade must lay annually before Parliament the statements and abstracts of re- Deposited ports deposited with (v) them under the Act during the of Trade. preceding year, whether or not they consider the statement, &c., to be in accordance with the Act (x). Share and (2.) Printed copies must be forwarded by post or entitled to Otherwise on application to every shareholder and copies. policy-holder in the company. Act of 1870 The Life Assurance Companies Acts includes life single insure, insurance by single underwriters, since by the inter- pretation clause (2/) company is explained as applying to any person or persons or body corporate or not in- corporate, and this wide definition therefore makes the («')'33. 34 'Vict. o.'6i, s. 24. (15) 3S> 36 Vict. 0. 4i,Is.f3. (^').^33^ 34 Viot. 0. 61, s. 2. Companies. 373 provisions of the Act apply to any one or more persons contemplating the business of assurance, and practically excludes from such business the very few cases in which life assurance would or could be made by under- writers (z). The duty to contribute to the Fire Brigade rests as Contribution much on a single underwriter as on the great in- Brigade, surance companies if he too takes fire risks. (2) Whittingham v. Thornlorough, 2 Vem. 206, Pre. Ch. 20. Ross V. Bradshaw, I Wm. Bl. 312, 2 Park Ins. (8th edn.) p. 934. ( 374 ) CHAPTER XXI. RIGHTS OF POLICY-HOLDERS. 33, 34 Vict. Under the Life Assurance Companies Acts (1870, Vict.' c.*'s8f 1 8 7 1 , 1872) the policy-holders of any company, how- c^'41^ ^^''*' ^^^^ constituted, are entitled — (i.) To copies of the statements of business, assets and actuarial reports required by these Acts to be made (a). (2.) To copies of the shareholders' address-book, on paying a sum not exceeding 6d. per 100 words (&). (3.) To printed copies of the deed of settlement, on payment of a sum not exceeding 2S. 6d. (c). Further, one-tenth of the policy-holders in any insurance company can stop all amalgamation or transfer of life insurance business by or to that company (d). ' These rights of knowing the constitution and con- trolling the dealings of an insurance company given by statute are quite independent of those accorded to them by the constitution of the company itself. Policy-holder ^ policy-holder in a proprietary company is simply ia creditor. , a contingent creditor. He is under no liability what- ever to other policy-holders or to the company itself, since he need not even continue his premiums. He cannot interfere in the management of the company, («■) 33. 34 Vict, c. 71, 3. II. (6) S. 12. (c) S. 13. (d) S. 14 RIG,HTS OF POLICY-HOLDERS. 3/ except, perhaps, to restrain a violation of the deed of settlement. In companies where policy-holders are allowed to Whether share in the profits, participating policy-holders are not poiioy-holdM usually liable as contributories (e), since the obligation ^'^^l^g^' to contribute depends on other considerations than sharing profits, which will alone Hot make such persons partners (/). Even where a policy-holder might be treated by an poiicy-holder outside creditor of an insurance company as a partner ^"f^g^r'^^" in the concern, the shareholders cannot insist on his contributing unless there is something within the four corners of the deed of settlement to make him so liable. Even where a policy-holder participates in profits, has power to vote at meetings, and on winding up is entitled to the surplus assets after the shareholders have been paid in full, these are only advantages to induce him to take out a policy, and he does not by so doing, nor by any ordinary deed of settlement, make any undertaking to contribute with the shareholders to- wards meeting the liabilities of the company (g). Where in a mutual insurance society some of the Non-liabilitj policy-holders participate and others do not participate t^|*poiioy*" in the profits, but a condition is endorsed on all policies holders whe: ^ n 1 • 1 1 • • T olaima are tc issued by the society, that all claims are to be limited be charged o to the stock and funds of the society, in virtue of such company, condition the participating policy-holdei'S, though they are in reality the only members of the mutual society, cannot be made to contribute (h). {e) Re English and Irish Church and University Assurance Co., l H. & M. 8s, 8 L. T. N. S. 724, 11 W. R. 681. (/) Cox V. mcJcman, 8 H. L. 0. 268. Bishop v. Scott, 7 L. T. N. S. 570. Re English and Irish Church, &c, &c. Society, uU supra. (g) Sirachan's case, 16 S. J. 572 (Alb. Arb.), Hummel's case, 16 S. J. 65 (Alb. Arb.) (A) Hummel's case, 16 S. J. 65 (Alb. Arb.) Sy6 THE LAWS OF INSURANCE* Policy-holders Under a mutual society of the older type, all policy- company, holders were held bound to contribute. Marine mutual companies are of this kind (i). Certain societies pro- vide for gradually creating an insurance fund, and paying off the original members in favour of policy- Construction holders not liable. It is assumed that the participating company. policy-holders will make payments from time to time in the shape of premiums upon their policies, but the basis of the whole arrangement of this company, and of any mutual insurance company, is this, that there will be, if not a legal compulsion, yet a moral compulsion on persons who have commenced insurances to keep them up and to pay the premiums which must be paid for that purpose. That is the basis of the contract and founda- tion of the arrangement in a mutual company. Those who join them know that they have that security, and that only for the swelling and increase of the assets of the company (k). Policy-holders Where a life insurance company was formed upon asoontri- the mutual principle, and the articles of association provided that the company should consist of two classes of members, namely, shareholders so long as there should be any shareholders, and assurance members, defined to mean policy-holders with participation in profits, and registered as members of the company; and when the shareholders should be paid off under the scheme provided for, then the company was to consist of assurance members only, it was held that the policy-holders were contributories, but that they could not be called upon to contribute until the shareholders had been exhausted (I). "The capital stock of an incorporated insurance How com- company is not the primary or natural fund for the panics' funds ^ •' ^ •' to be applied. '~~~~~~' Fund for pay- (i) Seed v. Cole, 3 Burr. 15 13. ment of losses. {h) Hummel's case, 16 S. J. 65, 68 (Alb. Arb.), re Albion Life Ins. Co., 16 Ch. D. 83, 49 L. J. Oh. 593, 43 L. T. N. S. 523, 29 W. R. 109, re G. B. M. Life, 16 Ch. D. 247, 43 L. T. N. S. 684, 29 W. R. 202, Bath's case, II Ch. D. 386, 48 L. J. Ch. 411, 40 L. T. N. S. 453, 27 W. R. 653. {I) Winstone's case, 12 Ch. D. 239, 48 L. J. Ch. 607, 40 L. T. N, S, 838, 27 W. R. 752. RIGHTS OF POLICY- HOLDERS. 37; payment of losses wMcli may happen by the destruction of the property insured. The charter of the company contemplates the interest on the capital fund and the premiums received for insurance as the ordinary fund ' out of which losses are to be paid. And the surplus what are of that fund after paying such losses is surplus profits surplusprofits within the meaning of the charter, which surplus profits alone are to be distributed from time to time among the stockholders. The unearned premiums received by the company upon which the risks are still running, and which may therefore all be wanted to pay losses which may happen upon those risks, are not surplus profits, which the directors are authorised by the charter to distribute among the stockholders. The capital Capital stock stock of the company is a special fund provided by the extraortoary charter to secure the assured against great and extra- ^°^^^s- ordinary losses which the primary fund may be found insufficient to meet. And if it becomes necessary at any time to break in upon this special fund to pay Drafts on such extraordinary losses, it must be made good from fP?f' *i ^™^^ •> ' D to be made the future profits of the company before any further good, dividends of those profits can be made. " The directors of an insurance company are not Whole of justified in dividing all the interest or premiums must™ot\e "' in hand at the time when a dividend is declared, but '^i"'^®^- should always leave a surplus fund in addition to the capital stock sufficient to meet probable losses on risks undertaken and unexpired (m). "And if they abuse their discretion by such premature Where T . . .J. J. T 1 • J.1 T directors division, II an extraordinary loss arises they may make nabie for themselves personally liable where the capital stock is ^Sfj"^ ^f'*"' more than exhausted by the amount of losses. funds. " If they neglect to divide the profits without reason- able or probable cause, they may be compelled to do so (m) Scott V. Eagle Ins. Co,, J Paige, N. Y. Ch, at 203. 378 THE LAWS OP mSUKANCE. Bight of inter ference where affairs of com- pany mis- managed. From what time policy- holder's charge on company's funds operates. When company's liability arises. Eight to receiver. SO long as the company is solvent. But after insolvency it would be highly inequitable to take the surplus fund and divide among the stockholders and leave the insured, whose premiums had increased that fund, to sustain a loss" (n). A policy-holder has not the least right to interfere with anything whatever which is done under the pro- visions of the deed of settlement, even in the case of the funds being invested on any improper investments, &c., audit would be most mischievous to allow any such inter- ference on his part with the management of the business by the directors. But if the funds of the company are about to be applied wholly regardless of the deed of settlement, he is entitled to ask the court to restrain such application. But to enable him to do so, there must be clear, distinct, and positive injury threatened to the fund which was available for his claim (o). A policy-holder's charge, if any, on the funds of the company which has granted it, does not operate on the fund charged at the date of its issue, but at the moment when it becomes a claim, otherwise no dividend could ever be declared. When it does become a claim, it takes priority from the date when it became such, not from the time when it was payable. In an insurance policy the liability arises on proof of death and payment of the insurance policy (p). Even where there is no charge, it seems the policy will give a right to a receiver (g), but not give priority over general creditors (r). («) Scott V. Sagle Ins. Co., 7 Paige (N. Y.) Oh. 188, 203. See Nichol- son V. Nicholson, 9 W. K. 677. (0) Aldebert v. Leaf, i H. & M. 681, 10 L, T. N. S. 185, 12 W. R. 462, 3 N. R. 455- (p) Jixpte Prince of 'Wales Society, Johnson 633, 28 L. J. Oh. 335, 32 L. T. 195, 7 W.R. 137, 300. (q) Law V. London Indisputable, I K. & J. 223, 24 L. J. Ch. igf), 22 L. T. 208, 3 W. R. 155, I Jur. N. S. 179, re Athenaeum Life exparte Eagle Co., 4 K. & J. 549, 27 L. J. Ch. 829, 6 W. R. 779. (?•) Re State Tire, i De G. J. & S. 634, 34 L. J. Oh, 436, 8 L. T. RIGHTS OF POLICY-HOLDERS. 3; A suit in equity can be maintained by a member of Suit main- a mutual insurance society against the managing com- poUoy-hold( mittee to recover by a contribution among the members '" ™'jtiJ?'i the amount of his loss (s). contributioi to his loss. The liability to policy-holders, etc., may be limited — Liability of company to , polioy- ( I .) By the constitution of the company. holders. ^ ^ •' Howlimite (2.) By particular provisions in the policy. Where the limitation is effected by (i), no notice thereof need appear on the policy, since all who deal with companies are now deemed to have notice of their constitution. And when a company alters itself duly from an unlimited to a limited, as may now be done under the provisions of the Companies Act, 1862, it becomes thenceforth needless to insert any provision in the policy, the addition of the word " limited " to its style being sufficient. Moreover, in case of such change provisions in the deed of settlement as to inserting such limitation in the policies become superfluous and can be struck out (t). By the Companies Act, 1862, s. 38, sub-s. 6, it is Liability of provided that nothing within the Act shall invalidate and'^funda'^'^ any provision in a policy or other insurance contract ?^^^J^^ i, limiting the liability of individual members on such policy, policy, or making the funds of the company alone liable in respect of such policy or contract (if). In all policies it is usual if not invariable, and except in limited companies necessary to stipulate that the N. S. 146, 1 1 W. R. lol I, I'e English and Irish Church Co., I H. & M. 85,11 W. R. 68 r, 8 L. T. N. S. 724. (s) Sutchinson v. Wright, 25 Beav. 444. Sohson v. M'Creight, 25 Beav. 272, 27 L. J. Ch. 471, 31 L. T. 21, 6 W. R. 385, 4 Jur. N. S. 269. (t) The Ocean Marine Insurance Oo. proposes to do this. (u) See per Jessel, M. R., re Accidental Death Co., 7 Ch. D. 568, 47 L. J. Ch. 396, 26 W. E. 473. 380 THE LAWS OF INSURANCE. funds of the insurance company shall alone be liable, and that individual shareholders shall be excepted from all Funds include personal liability. Unpaid calls come within the unpaid caUs. definition of funds (x). When liability is Umited to the funds, it means to the funds as they ought to be made up, and includes the still unpaid portion due on shares taken (3/). Liability The Hull and London Fire Assurance Company was brHdcy"" registered under 7, 8 Vict. c. no. Its deed of settle- ultra vires. ment took power to grant marine insurances, but clause 77 thereof specially required that the funds of the company should alone be made liable, and sec. 44 of the Act that policies should be signed by two directors or an officer expressly authorised thereto, by resolution applying to the particular case. A poUcy issued without any qualification as to liability was held ultra vires, and could not be granted either by the directors, or any agent appointed by them (z), and nothing could be recovered thereon. But possibly the grantee may insist on having proper and intra vires policies granted to him (a). And in support of this view it may be observed that a memorandum, signed by three directors, stipulating that on receipt of certain premiums the company would guarantee an assurance, and issue, if required, a stamped policy in the authorised form, has been held binding on the company and to create a good equitable debt (b). Where no debt can be established and the contract (as) Bowes v. jffope Society, 1 1 H. L. C. 389, 397, Westbury. Ooghlan's case, 17 S. J. 127. iy) Moans v. Coventry, S De Gt. M. & G. 911, 2 Jur. N. S. SS7, 25 L. J. Ch. 489, 4 W. R 466, affirmed 8 De G. M. & G. 835, 3 Jur. N. S. 1225, 26 L. J. Ch. 400, 5 W. R. 436. (s) Sanibro v. Midi and London Fire Co., 3 H. & N. 789, 28 L, J. Ex. 62. (a) Hid. Penley v. Beacon Fire Co., 7 Grant U. C. 130. (b) In re Athenaeum Life Co. exparte Eagle Co., 4 K. & J. 540, 25 L. J. Oh. 829, S Jur. N. S. 1 140, 6 W. R. 779. EIGHTS OF POLICY-HOLDERS. 3 is wholly ultra vires, being on risks not allowed by the articles, policy-holders cannot claim as creditors, but only for premiums paid (c). I . The grantees of policies of insurance contract to PoUoy-Iiolo receive a sum of money to be paid in a future event, property""" Whatever may be the property possessed by the °^ ^"'"^^• grantors, the grantees have not by this contract any immediate control over it, or lien upon it. The grantors or their trustees continue to have the entire control or management over the whole fund. The real estate or chattels" real may be sold and converted into pure personalty, and pure personalty may be converted into chattels real, and this state of things may continue not only during the contingency upon which payment depends, but after the contingency has determined, for the grantee acquires no specific lien after the payment has become due. Even in default of payment when due, the grantee cannot by reason of such default only resort immediately and at once to chattels real, but must resort to legal process, which will not affect the land possessed by the insurers at the time of the con- tract, although it may in its final result affect such land as the office may have at the time when the pro- cess is exeeuted. Ordinarily the grantee has nothing but a right of action from the date of the contract until payment (d). From this it results, on the one hand, that a policy Polioy-hold is not within the Mortmain Acts, and on the other creditor^^ that a policy-holder under such a policy would not be a secured creditor in case of liquidation. But where a life policy was granted stipulating that Provision the funds remaining at the time of any claim or demand treating unapplied and undisposed of and inapplicable to prior fj,^^''^jf . of death. (c) Be Phoenix Life, Burgess and Stock's case, 2 J. & H. 441, 31 L. J. Ob. 749, 10 W. R. 816. (d) March v. Attorney-General, 5 Beav. 433 Langdale, 382 THE LAWS OF DfSUEANCE. Company not a trustee of policy money on death of assured who has assigned. What amounts to covenant to pay out of particular funds. demands, should be liable to answer the demand and negativing individual liability on the part of the directors, it was held that this constituted a charge on the funds, and that it took priority from the date of proof of death, although not payable until three months later («). An insurance company which has granted an ordinary policy of life insurance is a debtor, and an assignee of such policy becomes, on the death of the life insured, a creditor of the company. The company is not in such case a trustee or a stake-holder, and should not pay the policy money into court under the Trustee Eelief Act (/). No precise or 'technical words are necessary to create a covenant ; and whether it be so or not depends on the intention of the parties, and therefore where directors had stipulated that neither of them as directors should be liable to any demand for loss, except under the articles of the society, it was held that the instru- ment might be considered as a covenant to entitle the insured, in case of a loss by fire, to receive a remunera- tion out of the funds of the society to the extent of such funds {g). " The capital stock," " the capital stock and funds," " the stock and funds," " the capital stock and effects," with or without reference to prior claims, or limitation of the charge to the amount of such capital stock funds or effects undisposed of and inapplicable to prior claims under the constitution of the company, are variously made liable in the policies of unlimited companies (h). No charge is created on the funds of a company by (c) He Athenaeum Life, &o. Co., exparte Prince of Wales Co., John- eon 633, 28 L. J. Ch. 335, 32 L. T. 19s, 7 W. R. 137, 300. (/) Matthew v. Northern, &c. Co., 9 Ch. D. 80, 38 L. T. N. S. 468, 45 L. J. Ch. 562. Desborough v. Harris, 5 De G. M. & G. 439.J (g) Andrews v. EUison, 6 Moore (0. P.) 199. (h) Re State Fire, 9 Ii. T. N. S. 108. RIGHTS OF POLICY-HOLDERS. 3 8 ; the terms of a policy whicli makes the stock and funds Policymaking of the company liable alone. Consequently the holders ^^l ^^^^l^ of such policies have no claim on the assets of the "°t ™^^*® . company in preference to general creditors (i). holders rank ■with general creditors. A provision in a policy, that the capital stocks and Effect of funds of the said company shall bo subject and liable that^funds to make good the aforesaid sum of £ to the stall make ° . good specified assured, his heirs, executors, or assignees, means that sum. the money shall be paid, i.e., that the stock shall be applied in the payment, or that the company shall pay it out of the stock, it does not amount to an equitable assignment of the stock, but is merely a covenant to pay out of stock so far as it will go (k). Where a policy restricts claims under it to the where policy property of the company remaining at the time of any okima to claim, including' unpaid capital, and specially excepts property of ^ , , t ^ ^ company all individual liability, the assured cannot proceed at shareholder law against an individual shareholder ; and it will not "^^ help the policy-holder that the deed of settlement contains (if it does) terms more favourable to the assured than the policy does, nor that the capital stock is fraudulently overstated in the policy (I). So also where the liability is imposed upon the funds remaining unapplied and undisposed of and inappli- cable to prior claims (m). Where the liability of shareholders in an insurance Liability company is by provisoes in the policy limited (in case p^^^y can't I of insolvency) to the amount then unpaid on such extended by shares, the policy-holders cannot, by bringing action for breach of breach of contract, in effect make the liability un- (i) Ibid., and see re International Life, M'lver's claim, 5 Ch. Ap. 424, 23 L. T. N. S. 38, 18 W. R. 794. (k) Matthew v. Northern, 9 Ch. D. 80, 84, 38 L. T. N. S. 468, 45 L. J. Ch. 562. {I) Durham's case, 4 K. & J. S17 (1858). (m) Be Athenaeum Life, expte Prince of Wales Life, mpra, note (e). 384 THE LAWS OF INSUKANCE. limited (n). To do so would enable persons who have contracted to seek their claims from a certain limited fund to enforce them against another and unlimited fund. Policy-holders under such policies have no personal remedy (o). Where liability limited by covenant to ^^^ afifect the paid and unpaid capital of the indem^ ihoTmtel! nifying insurer (p). Where such is the case a covenant to indemnify is not unlimited in its scope, and does no more than hind Nor can the policy-holders get the costs of winding up out of contributories who have compounded under section i6o of the Act of 1862 and the rales of 1862, schedule iii., form 56 (q). Funds appro- priated to secure policy- holders must be reserved for them. Costs of getting in funds appropriated to policy- holders to be borne by shareholders. If the liability of shareholders be limited by the policies (or in other manner whereof the policy-holders have notice) to the subscribed capital of the company, the funds thereby indicated must be kept entirely for the policy-holder (r), and the costs of getting in the unpaid capital, which is hypothecated in this manner to the claims of the policy-holders, will fall not on them, but on the shareholders, since such costs are really costs of settling the matter between the joint- stock partners themselves (s). (n) ZeMMgev. Adams, 13 Bq. 547, 26 L, T. N. S. 147, 20 W. R. 352. (0) Be Professional Life, 3 Ch. App. 167, 17 L. T. N. S. 631, 36 L. J. Ch. 442, i6 W. R. 295, Jte Athenaeum Life, 3 De G. & J. 660. Durham's case, 4 K. & J. 517, Bell's case, 9 Eq. 706-712, 39 L. J. Ch. S39, 18 W. R. 784. Hmns v. Coventry, 8 De G. M. & G. 835, 26 L. J. Ch. 400, 5 W. R. 436. King v. AccumvXative Life Co., 3 C. B. N. S, 151, 163, 27 L. J. C. P. 57, 30 L. T. 119, 6 W. R. 12. AldebeH V. Leaf, I H. & M. 681, 10 L. T. N. S. 185, 12 W. R. 462, HaUett v. DowdaU, 18 Q. B. 2, 16 Jur. 462. {p) Frere's case, 16 S. J. 502, Cairns, disapproving Fleming's case, but Fleming's case is of judicial authority. (5) lie Accidental Death Co., 7 Ch. D. 568, 47 L. J. Ch. 397, 25 W. R. 473. (r) Re Professional Life Co., vM mpra, HaUett v. DowdaU, vhi supra, (s) Re Agriculturist Cattle insurance Co., 10 Ch. App. i, 44 L. J. Ch. 108, 31 L. T. N. S, 710, 23 W. R, 319, re Arthur Average Co., No. 2, 24 EIGHTS OF POLICY-HOLDERS. 385 But the policy-liolders cannot insist on further calls after exhaustion of assets to recoup them for assets spent in paying general creditors, neither will they be postponed to general creditors, but will rank with them (t). The deed of settlement of the Albion Insurance Company provided that before any dividend was declared a reserve of not less than two per cent, of the annual interest of the sums advanced should be appro- priated until the whole capital (of ;^ 1,000,000) should be raised as a permanent fund to provide against losses. The funds were accumulated though no reserve fund was actually set apart, and bonuses were trien- nially divided. The Albion amalgamated with the Eeserye fund Eagle, and each shareholder was given the option of receiving ^So a share or having an allotment of shares and receiving a share of the surplus assets. It was held, in a question on a settlement comprising some Albion shares, that the share of the surplus assets was capital, since the surplus assets were a reserve fund, and not income, though the triennial Bonus there- bonus, coming out of the same fund, seems to have j^c^e. been treated as income (u). Where a claim on a policy was sent in with proofs Payment and admitted, and a day fixed for payment, but before before winding that day a petition was presented for the winding up J'^auduilnt* of the company, upon which after several adjournments preference, a winding-up order was seven months subsequently made. Lord Komilly held that payment by the com- pany of the claim must be deemed a fraudulent pre- ference within sec. 153 of the Companies Act, 1862, and that the money must be refunded (v). W. R. 514, in re Professional Life Co., 3 Oh. App. 167, 36 L. J. Ch. 442, 17 L. T. N. S. 631, 16 W. R. 295, 1867, re London Marine Ins. Co., 8 Eq. 176, 17 W. R. 784. («) £e English and Irish Church Co., 20 L. T. N". S. 943, 8 L. T. N. S. 724, I H. & M. 79, II W. R. 681. Re State Eire Co., 11 W. R. 746, ion, 24 L. J. Oh. 436, I De G. J. & S. 634, 8 L. T. N. S. 146. (m) Nicholson v. Nicholson, 9 W. R. 677. Last v. Royal Exchange Atawrance, 12 Q. B. D. 389. {v) Browne's case, 16 S. J. 781 (1874). 2 B 386 THE LAWS OF INSURANCE. In otter words, it is not enougli that the right to the policy moneys should have accrued. Payment must be made before any winding-up proceedings (x). Annuitants Holders of annuities granted by insurance companies AT*6 CT*6I1 TOOT'S ^""^ from day are Creditors of the company from the day when the to mn? ''^^'"' annuity begins to run. The liability of the company may be limited by its constitution or the terms of the annuity deed ; and whether the annuity is a secured debt or not depends on like considerations. They can Can prove in of course prove in the liquidation of the company for for value. the value of the annuity (?/) which is to be computed. Fund set Where a trust fund is set apart by a company to immediate meet immediate claims on policies, &c., it covers only claims. those claims and demands which have so matured that immediate payment can be demanded and an action at law brought, or other immediate steps taken to obtain payment. An annuity which had matured, but on which no instalments were due within the time limited for immediate payments, will not rank on such fund (2). Loan by office A man who borrowed from an insurance company iMid and ^ ° ^^ *^® Security of a policy granted by them and of a policy, value charge on land, on the liquidation of the company was be set off held liable to the assignees of the debt and securities against e . £^^ ^j^^ amount of the loan, and unable to set off the value of the policy, or to claim indemnity in respect of subsequent depreciation of the policy, the assignees being ready to return all the securities given for the debt on receiving payment thereof (a). Value of pelioy ^o^" if ^ ^^^ borrows on his policy can he set off off'aeainst* *^® value thereof against the loan in the liquidation loan on it in of the insurance company (b). But under the present Uquidationof r j \ / r company. {x) Martin's claim, 14 Eq. 148. (V) Hunt's case, I H. & M. 79, 7 L. T. N. S. 669, II W. R. 225. (2) Wyatt's case, Eeilly (Alb. Arb.), 42. (a) Bourne's case, Reilly (Alb. Arb.), 44. (i) Parlby's case, Reilly (Alb. Arb.), 48. BIGHTS OF POLICY-HOLDERS. 38; law, a policy has an aacertainable value in liquida- tion (c). The sum at which a policy has been valued in the Value of polioj winding up of an insolvent insurance company is not on°bankru*tc^ a debt due within the mutual credit clause of the "* policy- Bankruptcy Act, 1869, sec. 39 (unaltered in the Act loan on*^^^"' of 1883, V. sec. 38) {d), and therefore cannot be set off ofpoj-^^, under the bankruptcy of a policy-holder against a loan made to him on the policy. A limit placed on the liability to policy-holders by the Limited deed of settlement, does not in any way affect the rights poUey-Lidera of general creditors, who will have in such a case the iioes not affect unlimited liability of the shareholders, and not be creditors, restricted to the capital of the company, if the company be not a limited liability (e). The rights of annuitants and non-participating policy- Eights of holders depend on the presence or absence of limitation and'noni ^ or qualification in the annuity contracts or policies participating •^ '' '■ policy-holders accepted by them (/ ). depend on their -r ,1 . T p • ji contracts. In the wmdmg up 01 an insurance company, the Questions important questions for consideration are — arising on "^ '■ winding up. (1) The number of matured claims or contracts on which a present liability exists. (2) The number of immature claims whereon the liability is still contingent. (3) Whether all claims are payable out of the same funds. (4) If not, whether any claims are secured or come in only with the claims of general creditors. (c) Life Assurance Companies Act, 1870. (d) Expte Price, re Lankester, 23 W. R. 844, 33 L. T. N. S. 137. (e) Be Accidental Death Co., 7 Ch. D. 568, 47 L. J. Ch. 396, 25 W. R. 473. (/) Re Kent Mutual .Company,' Hurnmel's case, 16 S. J, 65, 68 (Alb. Arb.) 388 THE LAWS OF INSURANCE. How claims Under the present law in the winding up of an insur- ance company — ( i ) matured claims or policies are valued at the amount, including accrued bonus, which was pay- able on them at maturity; (2) immature claims are valued in accordance with the first schedule to the Life Assurance Companies Acts, 1870; (3) annuity contracts are valued under the second schedule of the same Act. ( 389 ) CHAPTER XXII. NOVATION AND AMALGAMATION. By novation is meant a tripartite arrangement whereby Definition, a debtor or person liable presently or in future, or on a contingency or concurrence of contingencies, is released from such debt or liability in consideration of hia providing another person who will undertake to satisfy such debt or liability (a). The creditor, by consenting to such arrangement, consents to look only to the new debtor ; and it is the criterion between novation and DifEerence suretyship that in the former the creditor has no right novation and of recourse to his original debtor (5), having accepted ^retysliip- the new liability in complete extinction and satisfaction of the old, whereas in suretyship the liability of the original or principal debtor continues. The law will not presume novation (c). It is a Novation to question of fact, and must be proved accordingly by P™''^'^" those who aver it to have taken place (d). In the absence of such proof the new liability if any will be taken to be by way of guarantee (e), and not as a substitute for the old. Although very slight evidence is sufficient in the Proof course of dealing between a customer and a firm, subject '^^'l"" to change by the retirement of all partners and the introduction of new, to show that the customer con- tinuing his dealings accepts the new firm as his debtors (a) I Pothier (Evans'), p. 381, S46. WUson v. Zloyd, 16 Eq. 60. (6) 1 Pothier (Evans'), p. 394, s. 568. M 3Si 36 Vict. c. 41, s. 7, Bowring'3 case, 16 S. J. 305. (d) Ooghlan's case, Reilly (Eur. Arb.) 46, 17 S. J. 128. Blundell's case, Reilly (Bur. Arb.), 84, 17 S. J. 594. (e) Erskine's Scottish Law, p. 425, 390 THE LAWS OF INSURANCE. in lieu of the older firm (though even then it is necessary that knowledge of the change in the firm should be brought home to the creditors), far more precise and cogent proof is required to show that in the case of two limited liability companies, formed originally under separate deeds, a creditor has aban- doned a written definite contract with one company for an unwritten engagement by a new company, to be arrived at through the medium of very special arrange- ments between the two companies (/). KoTation not solely appli- cable to insurance. The doctrine of novation does not apply solely to insurance, but owing to the recent history and peculiar character of insurance business has been chiefly dis- cussed of late years with reference to insurance com- panies having been brought into prominence by the result of numerous and complicated amalgamations and transfers of business between insurance companies which were in difficulties at the time of such amalgama- tions and ultimately became insolvent. Butmanycases haye arisen out of arrangements of insurance companies. A large number of companies, by a series of successive amalgamations and transfers, were ultimately merged in the European and Albert Companies respectively, and both failed, upon which it became necessary to decide — ( i) the competency of the various companies to effect the said amalgamation and transfers ; (2) whether such pro- ceedings, if competent to the company, were binding on its policy-holders and other creditors ; (3) whether, if not binding, they had been accepted and acted upon by the creditors. These questions are dealt with in the following pages on novation and amalgamation. Amalgama- tion. By amalgamation or transfer is meant those arrange- (/) Re Family Endowment Oo. per Hatherley, L. C, 5 Ch. Ap. 118, 132-3, 39 L. J. Ch. 306, 21 L. T. N, S. 775, 18 W. R. 266. Novation and amalgamation. 39 ments between insurance companies on occasions when one takes to the business of the other (h). Purchase by one insurance company of the goodwill Amalga- and the whole concern of another, will, ordinarily i^;jJa"f^„_ speaking, be a transaction in which no insurance company will be justified in engaging, because it cer- tainly cannot be said to be within the ordinary scope of the objects of any company to purchase the good- will of another (i). Such a transaction may, however, be expressly authorised under the deed of settle- ment or other instrument constituting the company, but the purchase must be carried out according to the provisions thereof {h). " Power to enter into a contract of amalgamation Capacity to is most clearly no part of the general powers which ^f/b™^** the law would imply in directors of an insurance com- ^JP^essly m snown, pany (l) . . . The power to insure lives and the power to grant annuities on lives committed to the directors of an insurance company, implying as it does skill and care on their part in selecting lives, could not be con- tended to authorise the taking over in mass by the executive of one insurance company of all the insured lives, and all the annuity contracts of another company selected and entered into, not by the executive of the first company but of the other (m)." In order, there- fore, to maintain a contract of amalgamation or any rights of indemnity arising therefrom, the power to amalgamate must be shown and strictly pursued, and general principles of law, which would show that in the ordinary details of business in obtaining necessaries and entering into contracts for them, the directors would have power to bind their shareholders, whether (A) Indemnity case, Eeilly (Alb. Arb.) 17. (i) Ernest v. Nichols, 6 H. L. C. 401, 414. Re Bra Insurance Co., 30 L. J. Ch. 137, 3 L. T. N. S. 314, 6 Jur. N. S. 1334, 9 W. R. 67, 1861. (i) Ernest v. JSfichoU, 6 H. L. 0. 401. {I) Indemnity case, Eeilly (Alb. Arb.) 25. ' (m) Ibid. 592 THE LAWS of insurance. their shareholders had or had not stipulated for parti- cular limits of liability in the deed, cannot be appealed to in order to support an amalgamation or an under- taking to indemnify as part of a contract of amalgama- tion (n). Amalgamation But an amalgamation which is at its outset ultra lanbe'" "^^'es may be ratified and accepted by the shareholders ■atified. ^i^;]j Qj. -without qualification ; and Lord Cairns, as arbitrator, held that the Albert Society in sanctioning an amalgamation effected by its direction did not accept certain ^tltra vires terms in the amalgamation deed which purported to impose on them an unlimited liability in respect of the debts of the amalgamated companies (o). Whera power When the original deeds constituting the company to amalgamate t , • ,^ , i , ^ aot given by clo not give the power to amalgamate, such power may M bv fvecill ^® given by general resolution, but not so as to alter resolution. the fundamental principle of the original deed as to the individual liability of shareholders (^). Therefore an amalgamation purporting to do more will be void (^q), though an amalgamation not altering the nature of such liability will be good (r). So no amalgamation could be intra vires which, in the face of a clause in the original constitution of the company, requiring that in every contract there shall be inserted a limitation of liability, purports to bring upon the company a liability not so limited (s). But Lord Eomilly held that where amalgamation was (ra) Indemnity case, Eeilly (Alb. Arb.) 25. (0) Ibid., 28. ip) Ibid., 29. (2) A Ibert 60, v. Banlc of London Co., same case. (?•) Albert Co. v. Medical, p. 28, same case. (s) Indemnity case (No. 2), Reilly (Eur. Arb.) 3. Anglo-Australian Co. V. British Provincial Co., 3 Giff. 521, 6 L. T. N. S. 68, 517, 10 W. R. 588. Exp. Smith re Anglo-Australian Life Co., 8 W. R. 170. Exp. Anglo- Australian Co. re British Provident Co., 10 L. T. N. S. 326, 12 W. K. 701. NOVATION AND AMALGAMATION. 393 authorised, the covenant to indemnify made thereon was unlimited (t). When a policy-holder or annuitant of one insurance Policy-holder company accepts an amalgamation of his company with amafgamation another company, he can only claim on such other com- °*" °^^7 °^^^^ •J, T ■,-,.. ,, °^ amalgamat- pany as if he had originally obtained policies or annul- ing company. ties from that company (u). And when the policy-holders and annuitants will not Claim by look to the amalgamating company, the amalgamated on ama^amat- companies can under the deed of amalaramation and '"^ company . T • 1 1 . when polioy- indemnity only claim on the assets of the other with holders will general creditors, the indemnity will be limited. amalgamating company. The costs of liquidating the amalgamated companies Costs of in consequence of the default of the amalgamating com- amalgamated panics will be treated like the costs of a surety who throu'^h^ resists the creditor's claim when the principal debtor default of fails to pay it, and they must show very strong reasons company. for resisting to be entitled to such costs (v). If the indemnity includes costs when ascertained and proved to result from breach of the covenant to indemnify, they may be charged on the company promising the indem- nity (x). Policy-holders can only be made to consent to a when policy- transfer of the liability on their policies — ( i ) when power by tr!vnsfer"of to effect such transfer is expressly given by the consti- ^^J '^{1'*^ tution of the company granting the policies, and (2) if the provisions regulating the mode of such transfer have been strictly complied with. But to avoid risk of acquiescence or novation, it is advisable to signify dissent or protest Q/) ; and where either is effectual, by formal (i) Se British Provident Co., 18 S. J. 242 (Bur. Arb.) (m) Indemnity case, Reilly (Alb Arb.) 33) 16 S. J. 141. (v) Ibid., 34. (x) Indemnity case (No. 2), Reilly (Eur. Arb.) 3. (y) Wood's case, Reilly (Alb. Arb.) 54, 15 S, J. 693. 3 $4 THE LAWS OF INSURANCE. Formal protest protest (z) to pay premiumff and do other acts needful to keep alive the claim with reference to such protest. Unless such protest be absolute, or declared to be in force until certain acts are done, or information is given by the person to whom it is addressed, diffi- culties may still arise, and subsequent acquiescence be alleged with some show of reason (a). Novation. Where persons having claims by way of policy or view. ^'™' annuity, deed, endowments, or otherwise, allow themselves to drift into dealings and enter into relations with the new company, and to pay premiums, &c., and make no protest with regard to the footing upon which they are paying these premiums, &c., they lose the security of the old company and become creditors of the new {b). Amalgamation Where a Company transfers its business to another holders kising ' ™ Consideration of a covenant by the transferee com- rightsagamst pany to indemnify the transferor against all claims on transferor . . . . company. policies, annuities, and other contracts, holders of annuity contracts with the transferor company, who were also shareholders, by exchanging those shares for an equivalent number in the transferee company, do not preclude themselves from looking to the trans- feror company for the payment of the annuity (c). By assenting to the exchange they do no more than agree that the paid and unpaid portion of the transferee company's capital, including their own por- tion thereof, shall be available to indemnify the old com- pany in respect of the old debts. They do not merge or extinguish their own claims against the old com- pany (d). (z) Wood's case, Eeilly (Alb. Arb.) 54, 15 S. J. 693, for a very clear and weU-drawn protest. {a) Dorning's case, Keilly (Alb. Arb.) 144. Griffith's case, 6 Ch. ■A-pp. 374. 40 L. J. Ch. 464, 24 L. T. N. S. 458, 19 W. R. 495. (6) Dorning's case, KeUIy (Alb. Arb.) at p. 148. (c) Trere's case, ReUly (Alb. Arb.) 211. (d) Fleming's case, 6 Ch. App. 393, 39 L. J. Ch. 250, 23 L. T. N. S. 770, 19 W. R. 663. Novation and amalgamation. 395 If a person takes shares in an insurance company, Where and then that company is dissolved, or its business Sfv^d, &c., i »/ - ■ — 7 -- uisjHUiveu, transferred to or amalgamated with that of another such liability of 1 1 Ti • 1 • partners company, unless the dissolution, transfer, or amalgama- continues, tion involves a discharge to the creditors of the dissolv- "picLuy o- — "" «*wv^*,^ v^ ^^^ ^^^^^^^ specially ing, &c. company which binds them, the liability of the discharged, partners continues. Unless they accede to the transfer, however conformable it may be to the constitution of the companies engaged in it, they are not bound. But if they accept the indemnity of the new company, the old liability ceases (e). When one company transfers to another its business, Rights of the transferee company promises by the deed of transfer oftansfer^r indemnity to the transferor against all claims of policy- company holders or creditors with vested or contingent rights against the transferor. This of itself does not in any way debar such creditors from suing the transferors. If the transferees continue solvent, the transferor can have recourse to them, by claim over. Most of the cases on this point have arisen where creditors of the trans- ferors have found transferees insolvent. Covenants to indemnify, made by insurance com- Covenants to panics to each other on amalgamation and transfer ^"4^™."**7 °°* „ , . ... unlimited. of business, are not unlimited in their scope. They do no more than affect and bind the paid and unpaid capital of the indemnifying company. And the assent of a shareholder to an indemnity covenant amounts to nothing more (/). An insurance company agreed to amalgamate with a Position of second company, and a deed in two parts embodying ^ ^^^ ° ^^' the terms of amalgamation was drawn up and executed, but subsequently declared void for a variation between the terms of the two parts {g). A shareholder in the (c) Lancey's case, Eeilly (Eur. Arb.) p. i8, Westbury. (/) Indemnity case, Reilly (Alb. Arb.) 17. Frere's case, i6 S. J. 502, Reilly (Alb. Arb.) 211. Fleming's claim, 6 Oh. App. 393, 19 W. R. 663, 23 L. T. N. S. 770, 39 L. J. Oh. 250. (g) Wynne's case, 28 L. T. N. S. 805, 21 W. R. 895. \ 396 THE LAWS OF INSURANCE. Void amal- gamation. first company applied for shares in the second, and received a letter of allotment, but no certificate of shares. As he did not accept the allotment, it was held that he could not be called upon to contribute in the winding up of the second company, but must be treated as an applicant for shares which never had been allotted ; the insertion of his name on the register being neither authorised nor ratified by him (A). The amalgamation being void, there was no consideration for taking shares in the second company, since that company could not give him shares on which he was to be credited with the value of his old shares, and as a fact no agreement to take the second company's shares was proved (i). Life insurance companies cannot now amalgamate or Chancery Division (k). No amalga- life offices transfer their business without the assent of the High Tonsentof ^°"^ °^ Justice, to be obtained by petition in the High Court. It may be stipulated that policy-holder shall accept liability of transferee company. But it will not be implied. If the amal- gamating companies are treated as separate, novation does not occur. It is quite lawful (l) to make it a term of the original contract of insurance that the holder thereof shall be obUged to accept any subsequently substituted liability created by any intra vires transfer or amalgamation. This may be done by express and apt words in the policy, or by declaring the policy to incorporate and be sub- ject to the constitution and by-laws of the company {m), but will in no case be implied by law (n). Where the terms of the amalgamation do or purport to keep the two companies separate, no question of novation can arise, and holders of contracts with the (/t) Beck's case, 9 Ch, App, 392, 43 L. J. Oh. 531, 29 L. T. N. S. 907, 22 W. R. 348, 460. (i) Same case. (*) 33 & 34 Vic. c. 61, SB. 14, 15. (I) Pollock on Contracts, 190. Dowse's case, 3 Ch. D. 384, 46 L. J. Ch, 402, 35 L. T, N. S, 653, and Cocker's case, 3 Ch. D. i, 45 L. J, Ch. 822, 35 L. T. N. S. 290, Hort's case, i Ch, D. 307, 45 L. J, Ch. 321, 33 L, T. N. S. 766. (m) Brice, Ultra Vires, p, 724, ccxxxix, discussed in Pollock on Con- tracts, p. 190. (ra) Lancey's ijase, Reilly (Eur. Arb,), 18. NOVATION AND AMALGAMATION. 397 absorbed company continue to be creditors of that company alone (o). The object of proving novation is to enable the old debtor to resist any recourse to him for payment of the debt. An insurance company which has transferred its business ultra vires, or to a company which had not Amalgamation the power to take it over, or which, the transfer being '* *'" ^''^°" intra vires on both sides, cannot by its constitution or the terms of its policies, or both, compel the contract- holders to look to the new company, is not entitled to dissolve, and may be resuscitated for purposes of wind- jjgjujcitation ing up when its contract debts fall due, unless it can for winding up. prove that the contract-holders had full knowledge or sufficient notice of the arrangement {p) between the transferor and the transferee companies, and assented thereto in such a manner as to agree to look to the transferee company only for satisfaction {g) of the policy or other insurance contract when its amount became payable. It is consequently of equal importance for the share- shareholdera holders of a transferring company to induce the policy- eomprny^selk] holders to release them and accept the transferee, where release from the policy-holders have the option of refusal, and for holders. the latter in such a case to avoid novation and seek to preserve recourse against the original grantors of the Policy-holders policies. Whether novation has or has not been made, preserve their being, as already said, a question not of law or pre- original rights, sumption, but of fact, in the very complicated circum- stances attending the amalgamation already alluded to, it is not surprising that the Court of Chancery and Lords Cairns, Westbury, and Eomilly, sitting as arbitrators in the winding up of the Albert and European Companies, are not wholly consistent (r). (o) Ee Anchor Ins. Co., exparte Badenooh, S Ch. App. 632, 18 W. R. 1183. {p) Conquest's case, I Ch. D. 334, 45 L. J. Oh. 336, 33 L. T. N. S. 762. (2) Expte Gibson, re Smith Knight and Co., 4 Oh. App. 662, GifiEard, L. J. (r) Lindley on Partnership, p. 463, 398 THE LAWS OF mSUEANCE. Decisions of The views of the learned arbitrators, however, though absolutely "° entitled to the greatest regard as opinions of very binding. learned men, are not binding on the courts. Fayment of pTemioins not evidence of novation. Payment of premiums necessary for the maintenance of the policy or other similar security to the transferee company is not sufficient to constitute novation (t). The act, being ambiguous, is not sufficient to raise a presumption against the policy-holders, who in cases of transfer can only pay at the transferee's office, and payment may be made them either as agents for the grantors of the contract or as principals. Payment Formal protest in writiuff, declaring that future vinder protest . n, .,,,. will prevent premiums would be paid only subject to and on the nova ion. ^^^^ ^^ ^j^^^ protest, and to prevent any question of lapse, is sufficient to negative novation (u). A receipt from a company other than the original insurers may be explained by payment either as accept- ing the new company as future insurers, or as agents of the orignal company (v), and being ambiguous will not prove novation. Payment in If the holder of the receipt knew nothing of amalga- oluiii^°^ ° mation, he cannot be held to have assented to it (x). Without authority! And if the premium be paid to the transferee com- pany by bankers of the contract-holder's widow, without the executor's authority, there is no novation (y). So if the contract- holder cannot read, and does not see, nor otherwise learn of the amalgamation, he will not be held to have accepted the liability of the amalgamating company (2). (') 35i 36 Vict. c. 41, s. 7. And see Bartlett's case, S Ch. App. 640. Holditoh's case, 14 Eq. 72, 26 L. T. N. S. 415, 20 W. R. 567. [u) Wood's case, Reilly (Alb. Arb.) 54, Lord Cairns. Dorning's case, Reilly (Alb. Arb.) 144. How's executors' case, Reilly (Alb. Arb.) 245. (v) Whitehaven Bank case, Reilly (Alb. Arb.) 62. (a;) Power's case, ReUly (Alb. Arb. ) 232, (y) Dupre's executors' case, Reilly (Alb. Arb.) 236, («) Clegg's case, Reilly (Alb. Arb.) 26$. NOVATION AND AMALGAMATION. 399 But acceptance of a bonus from the transferee company Aooeptanca is evidence of an intention to accept its liability in lieu °*.^o™s ^ ■' evidence of of the liability of the transferor company (a). So will novation. the carrying in a claim against the transferee company, Proof against whether before (b) or in the winding up, be evidence of *'^'*°^^®™^ novation (c). Novation also takes place when the transferee com- Endorsement pany endorses the original policy with an acceptance of transferee^ liability conditionally upon payment of premiums to °°™P™y- it (d), and generally when a policy-holder has sent in his policy to be endorsed by the transferees, or to be exchanged for one of theirs («), or accepts any voucher Acceptance of declaring their Uability (/), novation is clear. ^^^^ ™"='^«''- Verbal protests by a policy-holder to an agent of verbal protest his company will not suffice to prevent novation in to'prev^nt.''* the face of other acts evidencing it (g). But complete protection if desired may be obtained by formal written protest, and payment of premiums subject thereto. A good instance of such protest is Wood's case (h). Where a policy-holder is also a member or share- -where policy- holder in the company whose business is transferred, g^arehoHer or and a party to the deed of transfer, novation will be party to deed held to have taken place as to his policy (i). Where a policy is mortgaged, novation by the mort- Novation by mortgagor ' binds (a) Exparte Nunneley re Times Life and Guarantee Co. , 39 L. J. Ch. mortgagee. 527, S Ch. App. 381, 18 W. R 559. Spencer's case, 6 Ch. App. 362, 40 L. J. Ch. 455, 24 L. T. N. S. 455, 19 W. R. 491- (6) Even's claim, 16 Eq. 354. Knox's case, Keilly (Alb. Arb.) 132. Allen's case, Reilly (Alb. Arb.) 127. (c) Me National Provident Life Co., 9 Eq. 306. Re International & Hercules Co., exparte Blood, 9 Eq. 316, 39 L. J. Ch. 295, 22 L. T. N. S. 467, iS W. R. 37°- (d) Me European Co., Miller's case, 3 Ch. App. 391. (e) Griffith's case, 6 Ch. App. 374, 40 L. J. Ch. 464, 24 L. T. N. S. 458, 19 W. R 495. (/) Havrtrey's case, EeiUy (Alb. Arb.) 138, 16 S. J. 713. Ig) Rivaz's case, Reilly (Alb. Arb.) 104. Howell's case, Reilly (Alb. Arb.) 117, 16 S. J. 631. German Life Co. case, Reilly (Alb. Arb.) 189. (h) ReiUy (Alb. Arb.) 54. (i) Exparte Stephens, 9 Eq. 694, 22 L. T. N. S. 264, 18 W. R. 725. Fleming's case, 6 Ch. App. 393, 39 L. J. Ch. 250, 23 L. T. N. S. 770, 19 W. R. 663. Harman's case, I Ch. D. 326, 45 L. J. Ch. 336, 33 L. T. N. S. 760. 400 THE LAWS OF INSURANCE. B; settlor biuds truatees. Beceipt of annuity not sufficient. Where deed of settlement provides that only funds of company liable, the annuitant's claim follows them. Endorsement. Effect of successive amalga- mations. gagor will bind the mortgagee (Jc). So also in the case of a settled policy, if the settlor accepts the liability of the transferees, the trustees cannot claim against the transferors (l). The holder of an annuity contract which has not matured, is in just the same position as a policy-holder. But when the annuity has become due, receipt of the instalments thereof without demur from a company other than the grantors will not amount to novation (m), since accepting from B payment of a debt due by A is no evidence that the recipient considers B his debtor (n). In certain cases, however, the annuitant cannot resist novation. Thus, where the deed of settlement of the grantor company provides that its funds and property only shall be liable for claims on the company and they are transferred, his claim follows them into the new hands (o). And if the annuitant accepts an endorsement on his contract by the transferee company, this would seem to amount to novation (p). An annuity contract was entered into with the St. George Company, which amalgamated with the Metro- politan Counties in 1 86 1, which in 1862 amalgamated with the Western, which in 1865 amalgamated with the Albert. The effect of these doings, if agreed to by the creditor, would be to transfer his claims on the assets of the original company to the assets of the last-named com- pany, including all that it had received from the different companies amalgamated (g). ^ (h) Werninok's case, Eeilly (Alb. Arb.) loi. {I) Andrew's case, Eeilly (Alb. Arb.) 107. (m) Re National Provident Life, 9 Eq. 306. Pott's case, 5 Ch. App. 1 18, 18 W. R. 266. (n) Re India and London Life Co., 7 Ch. App. 651. (0) Dowse's case (European), 3 Ch. D. 384, 46 L. J. Ch. 402, 35 L. T. N. S. 653. (ip) Dale's case, Eeilly (Alb. Arb.) II, See Pott's case, aitpra. (2) Dale's case, tvpra. ( 401 ) CHAPTER XXIII. FOBEIGN COMPANY. The domicile of an insurance company may be of Domicile of great importance to those who deal with it ; for it fmportent to is very common for companies constituted within and ^"^it^^if ^^^"^ under the laws of one jurisdiction to carry on business in another. Thus Scotch companies do a large business in England, and English companies appear in suits before the courts of the United States and every colony in the empire, and the colonial companies very often trade in other colonies. And usually, as a check on their agents, such companies refuse to allow any agents other than directors to grant policies (a). And also they have much if not most of their assets in some other jurisdiction. No special terms are in this country laid upon Foreign foreign insurance companies which are not also laid on companieg English companies (b). Existing foreign companies need f^g" *'^^'^^ ^^'^^ not register under the Companies Acts whether estab- lished before or after 1862, nor must they be incorpo- rated according to the laws of their own country (c). Companies formed outside the United Kingdom may Eights of . . , » ,. rm foreign com- trade irrespectively of any convention, iney cannot panies. register under the Companies Acts, 1862, without dis- solution and re-formation. So their coming to trade in {a) Kelly v. Zondon and Staffordshire, i Cab. & Ellis, 47. In some olonies the Legislature has intervened, and forced foreign companies to name an agent, and lodge funds within the jurisdiction. South Australia Act, No. 277, of 1878. (h) Assurance Companies Act, 1870, 33, 34 Vic. c. 61. (c) Sateman v. Sm-vice, 6 A. C. 386, 50 L. J. P. 0. 41. 44 L. T. N. S. 436. 3C 402 THE LAWS OF INSURANCE. England will not alter the liability of the members of tlie company in any way (d). By virtue of special conventions, French, German, Belgian, or Italian insurance companies, legally consti- tuted under the laws of their respective countries, may freely exercise all their rights under such constitution in this country, including the right of appearing before the courts as plaintifis or defendants (e), so far as such constitution complies with the laws and customs of this country, i.e., that they are found to comply with the conditions prescribed by the laws of this country (/). It does not matter whether the companies were formed before or after the making of the conventions (/). But almost the only change effected by these conventions, as will be seen from the cases already cited, has been to admit English companies in the countries named, the foreign companies having already been admitted here. American experience of foreign companies. Foreign contract law applicable. American reports teem with cases of insurance trading outside the State in which the companies are associated for trading purposes. But such cases, while in many respects they will illustrate the rules of English law on the subject, go to a great extent on special statutes empowering policy-holders to sue in the State of their domicile irrespective of the domicile of the insurers (g). The law which applies to a contract with a foreign country is well stated as follows : — " When a suit is brought on a policy in a State other than that where the contract is made or to be performed, the lex fori governs the remedies for enforcing the contract, but not its con- (d) Bvlheley v. Scliutz, L. E. 3 P. 0. 764, 769, 6 Moore, P. C. N. S. 481. (e) See Conventions in BuoHey, 625. (/) lUd. 625, 627. (g) OromweU v. Royal Canadian Insurance Co., 49 Maryland 366. Universal Life Co. v. Backus, 51 Maryland 28. Myer v. London, Liver- pool, and Globe, 40 Maryland 595. FOREIGN COMPANY. 403 struction or the legal rights arising under it. These depend usually on the laws of the place where the con- tract is to be performed, although, where there is any- thing in the circumstances to show that parties had specially in view the law of the place where the con- tract is made, this law will govern though the contract is to be performed elsewhere " Qi). Where the contract is foreign by the test given above, it will be, unless otherwise provided, governed by the law of the foreign country in which it is made, Provision regardless of the domicile of the assured. But this foreign°aw. will not wholly oust jurisdiction of the courts of the assured's domicile (i), and if the insurers have an office within that domicile for receipt of premiums, service on their agent there will, it seems, be permiss- ible {h). When a policy is granted by a foreign company Policy of carrying on business within the realm, the contract compMiy doing will be held to be made at the head office abroad of business here, such company if the consent to issue it must be and is there given (I), and it may be sued on there. Conse- quently, where a person with English domicile takes out a policy from such a company, it would seem that payment of the amount thereof under judgment in the domestic forum of the company to the adminis- trator within such forum of the assured, would be a bar to any suit for the recovery of the amount of the policy in the domicile of the insured (m). (h) Ruse V. Mutual Benefit Co., 23 N. Y. 516. (i) Pa/rTcen v. Royal Exchange, 8 C. S. C. (2nd series) 365. (h) M'GuUagh v. Yorkshire Insurance Co., 1 Crawford and Dix. Ir. Circ. Eep. 264(1838). (Z) Equitable Life Co. of the TJ. S. v. Perrault, 26 Lr. Can. Jur. 382. Parhen v. Royal Exchange, 1846, 8 0. S. C. (2nd series) at 372. Redpath V. Sun Mutual Co., 14 Lr. Can. Jur. 90. Von Savigny, Conflict of Laws, tr. by Guthrie, 2nd edition, 156, 215, 265, and notes. . (m) Equitable Life Co. of the U. S. v. Perrault, 26 Lr. Can. Jur. 382, 1882, a very full case, 404 THE LAWS OF mSURANCE. Foreign Where the policy is foreign and no provisions are 0? payment*"^ made therein as to the place of payment, &c., demand must be made at the head office abroad, before the company can be considered in default (n), since the locus contractus is loctcs solutionis unless expressly otherwise provided (o). But in case of insolvency, the creditor on a policy would be entitled to rank in his own forum against any funds deposited within its jurisdiction (p), and generally having got judgment on his policy here or abroad, in accordance with the law governing it, would be entitled to rank as a secured or unsecured creditor (according to terms of his policy) on the assets of the company here (q). Condition If the assured wants a contract with a foreign corn- English, pany (where the consent is to be given abroad) to be governed by his own law, he must have a provision to that effect inserted in the policy, which will be effectual to oust the lex loci contractus (r). If he thinks the foreign law more favourable to him, he can contract accordingly. In dealing with foreign companies, it is consequently necessary to avoid such an inconvenience, to see that the policy contains a provision that payment on it shall be made in the domicile of the assured, since in a foreign contract the locus solutionis is foreign too unless other- wise stipulated (s). Provision for Perhaps the best example of the mode in which the policies in . . , ..„,... different juris- insurance compames can make provision tor policies m dictions. different jurisdictions, is to be found in the special Act of the Scottish Widows' Fund, a company domiciled in Scotland, wherein it is provided that every policy effected (») Equitable Life Co. (U. S.) v. Perrcmlt, 26 Lr. Can. Jur. 382. (0) Parken v. Royal Exchange, 8 Ct. Sess. Caa., 2nd series, p. 365-375. (p) Orr Ewimg v. Orr Ewing, 21 Sc. Law Reporter, 423, II C S. 0. (4th series), p. 600. Equitable Life Co. v. Perrault, libi supra. (g) Thurburn v. Steward, L. R. 3 P. C. 478, 40 L. J. P. C. 5, 19 W. R. 678. (r) Robinson v. Bland, 2 Burr. 1077. (s) Parken v. Royal Exchange, 8 0. S. C, 2nd series, p. 365-375, Cockburn, FOREIGN COMPANY. 46] with any person described as of any place in England or Ireland shall be deemed a policy effected with a company having its head office in London or Dublin respectively, even though it should appear on the face of the policy that it was not in fact effected in Eng- land or Ireland (m). Sec. 56 of the same Act con- tains a further provision to the same end, that assign- ments and discharge of policies of the society executed outside the United Kingdom shall be valid and effectual if made and executed according to the usual mode of making and executing such documents in the United Kingdom, or in the place where the same shall have been made and executed. The statutory requirement that every life insurance Law as to company should deposit ^20,000 with the Accountant- fnfffioacious. General applies equally to all companies, British or foreign; but as there is no provision insisting that companies not domiciled within the jurisdiction should keep the fund deposited after they have satisfied the test by the Act provided, the assured has no guarantee that a fund will remain in this country to satisfy his claims (v). In the case of large foreign companies it seems to be the practice to lodge assets with trustees within this country to answer claims there arising. This procedure provides funds upon which judgment may be executed within the domicile of the assured, or on which he may rank as a creditor, but does not ob- viate the necessity of the provisions already mentioned as to the law which is to govern the construction of the contract. It may, however, be observed that insurance law varies little throughout those countries where insur- ance is practised. In Scotland jurisdiction on a foreign policy can be Scotch law. with certainty created if doubt arises by arrestment of («) The Scottish Widows' Fund Act, 1882, 45, 46 ■Vict.;c. Ixxv. (s.) 55, [v) 33. 34 Vict. 0. 61, s. 3. 4o6 THE LAWS OF msURANCE. funds of the foreign insurer within the jurisdiction {x). An English company dealing in Scotland by an agent not allowed to do more than give interim receipts, must, it seems, be sued in England (?/). So also when the company was English, and a conditional policy granted in Australia (2), and in a very recent case suit was brought in England on a policy granted by an English company on property in Minnesota {a). Test -when contract by agent is foreign. If the insurer's agents in the country of the assured have power to effect a complete contract there without reference for consent to the foreign head office, the contract will not be foreign (6), and will be valid where made, even though forbidden by a monopoly within the domestic forum, (c) of the insurers. Prooeedinga Where the company and the contract are both foreign, ojid company" judgment may be obtained in the locus contractus, and foreign. th&n proceeded on in the English courts (d), and a winding-up order may be obtained against a registered company even though the persons, property, manage- ment, and directorship be abroad, provided that it is a company which at the outset contemplates some description of management in this country, even although in substance all its operations may be abroad (e). (x) Parken v. Royal Exchange, 8 Ct. Sess. Gas. {2nd series), 365. (y) MacUe v. Muropewn Co., 21 L. T. N. S. 102, 17 W. K. 987. (e) Jiossiter v. Trafalgar Life, 27 Beav. 377. (a) Kelly v. London and Staffordshire Co., 1 Cababe and Ellis 47. (5) Albion Insurance v. Mills, 3 Wilson & Shaw (Sc), 218, 233, i D. & CI. (H. L.), 242. (c) Same case, followed in St. Patrick Co. v. Brehner, 8 C. S. C. (ist series), 51. (d) Which can now be done under R. S. 0. 1883, 0. iii, r. 6, and 0. xiv. Grant v. Easton, 53 L. J. Q. B. 68, 49 L. T. N. S. 645, 32 W. R. 239> \e) Bulkeley v. Schutz, L. R. 3 P. 0. 764. Bateman v. Service, 6 A. C. 386, 50 L. J. P. C. 41, 44 L. T. N. S. 436. Pnncess of Beuss v. Bos, L. R. 5 H. L. 176, 40 L. J, Ch. 655, 24 L. T. N. S. 641, reported also as re General Land Credit Co., 5 Ch. A. 363, 22 L. T. N. S. 454) 18 W. R. 505. fO&EIGN COMPANY. 40; It has been laid down by the Irish Courts that a company which holds an office in a foreign country for the receipt of premiums, where the entire contract is made and where the office is still open for future contracts, does by such contract enter into an engage- ment that for all purposes of suit their office shall be deemed their dwelling-house ((/). Formal completion of the contract at the head office will not make any difference, as the holding open office is an undertaking that the office is to be deemed their residence, not only for receipt of premiums but also for enforcing the con- tract (h). But as before mentioned an action has been brought in England on a policy granted by an English company (through a broker) in Minnesota (i), and in New York State on a policy there granted on property in Canada (k). Substituted service has been allowed on an agent in Service of wri _ , . .on company. Dublin of an English company who had received some of the premiums for them, the company refusing to appear in Ireland and requiring suit in England (l). But under the new rules (m) a policy effected in England with a Scotch or Irish company cannot be sued on here unless the contract is made at the company's office here ; for there is no power to allow service of a writ out of the jurisdiction in actions for breach of contract under 0. xi. r. I (e), where the defendant is domiciled in Scot- land or Ireland (n). When a company with head office in England was iff) Moloney (Exor.) v. Tulloch, i Jones (Ir. Exch.) 114 (1835). Kelly V. London and Staffordshire, i Cababe and Ellis 47. (/i) Same case. And see Welih v. Reynolds, 3 Ir. Law. Rec. (N. S.) 105. (i) Kelly v. London and Staffordshire Fire, i Cababe and Ellis 47. Lycoming Co, v. Ward, go 111. 545. (Tc) Equitable Life Co, v. Perrault, 26 Lr. Can. Jur. 382. [1) M'CuUagh v. Yorlcshire Insurance Co., 1 Crawford and Dix, Ir. Circ. Eep. (1838), p. 264. Kelly v. London and Staffordshire Fire, i Cababe and EUis 47. (m) R. S. 0. 1883, O.xi. !■. I (e). (n) Lenders v. Andei-son, 12 Q. B. D. 50, 53 L. J. Q. B, 104, 49 L. T. N. S. 537, 32 W. R. 230. 408 THE LAWS OF INSURANCE. sued in Ireland and served in England in accordance with the Irish practice, and failed to appear, the validity of a judgment by default in Ireland was held not to be aflfected by proof in English Courts that the service was invalid (o). The court will allow proceedings on Judgment. -fciie foreign judgment under 0. xiv. of the Eules of the Supreme Court, 1883 (j>). Judgments obtained by or against insurance com- panies in one part of the United Kingdom are enforce- able in any other part of the kingdom in conformity with the provisions of the Judgment Extensions Act, 1880 (2). (0) Shedey v. Professional Life, 27 L. J. C. P. 233.(Exch. Oh.), 1857. (p) See R. S. 0. 1883, 0. iii. r. 6. Grant v. Boston, 53 L. J. Q. B. 68, 49 L. T. N. S. 64s, 32 W. R. 239. (j) 31, 32 Vict. c. 54. ( 409 ) CHAPTER XXIV. AGENTS. All insurance partnerships or corporations must, by Agents their very nature, act through agents (a). But the companies!" ^" powers of those agents vary considerably. The acts of th e managers or directors or governing body of an insurance corporation are binding on the corporation, unless they exceed the powers of the corporation as declared by the instrument constituting it, or the particular powers by such instruments accorded to the managing body. But such companies have also many subordinate agents, whose powers are variously limited, and who, while they cannot any more than the managing body bind the corporation by an infringement of the articles of its constitution, are still further disqualified from many acts by the special character of the authority given to them by the managing body (6). Persons dealing with insurance companies will be Powers of deemed to have notice of the powers of their managers, presumed to be whatever the mode in which the company is constituted, '^"°''"- so far as the constitution of the company defines and limits the same. But merely directory provisions therein, which are only for the guidance of the directors, do not concern, and will not affect, persons dealing with the company (c). (a) Montreal Assurance v. M'Gillivray, 13 Moore P, 0. 87, 8 W. E. 165. Brice on Ultra Vires, 42, 2nd edition. (6) JRoyaZ British Bank v. Turquand, 6 E. & B. 327, 25 L. J. Q. B. 317 (Ex. Ch.) (c) Agar v. Atlenceum, 3 0. B. N. S. 725, 1858, 27 L. J. C. P. 95, 6 W. R. 277. Prince of Wales Co. v, Same, 31 L. T. O. S. 149. 4 1 THE LAWS OF INStRANOE. Authority of And it seems to be good law that " the powers of a geneia agen . gg^gj,g^| agent are primd facie co-extensive with the business entrusted to his care, and will not be narrowed by limitations not communicated to the person with whom he deals" (d), except on some such ground as the notice which persons dealing with a company must be taken to have of such powers, where they are con- ferred by statute or other instrument constituting the company. General agent General agency does not give an authority to insure, not authorised . t j_ i i / n tj. • x -ii ■ to promise 01* miposo any duty to do so («). it is not withm policy. ^Q ordinary duty of an insurance agent to undertake to grant a policy, and such an undertaking will not bind the company unless the agent were specially authorised (/). Eepresenta- The representations of an agent having authority to tions of agent ^. ., . ■, . ii.-iii bind company, sohcit insurances and receive proposals bind the com- pany {g). Del Credere. A del Credere agent, who is commissioned to insure, may insure as owner, and if sued for premiums in case of a loss, can set off the amount of the policy Qi). But if they describe themselves in the policies as agents, though they may be liable for the premiums, they have nothing to do with the policies {%). If the general agent of a company makes an unwise contract for them, or is satisfied with answers in pro- posals which ought not to have been deemed satisfactory, in these and many more supposable cases (collusion on (d) Insurance Oo. v. Wilkinson, 1 3 Wallace, U. S. 222. Oaley. Lewis, 9 Q. B. 730, 16 L. J. .Q. B. 119. Shcmnon v. Ooi-e District Mv-tual, 2 U. 0. App. 396. Hastings Mutual Co. v. Shamion, 2 Canada 394. (e) French v. Backhouse, 5 Burr. 2728. (/) Linford v. Provincial Horse and Cattle Co., 34 Beav. 291, 10 Jur. N. S. 1066, u L. T. N. S. 330. {g) Splints v. Lefevre, 11 L. T. N. S. 114. (h) Wienholt v. Rolerts, 2 Calnp. N. P. 586 (181 1). Koster v. Eason, 2M. & S. 112. (i) Baker v. Langhorn, 4 Camp, 396, AGENTS. 4 1 1 the part of the person seeking insurance being out of the question) the company will be clearly bound, because in all the supposed cases the agent would be acting within the scope of the authority which the company held him out as possessing (Jc). If a general agent gives grace for the payment of General agent overdue premiums, the company will, it seems, be S for paying bound, and if not bound, if the directors receive the Premiums, agent's accounts with th* entry of acceptance of overdue premiums without objection, they will ratify his act (V). But even a general agent cannot extend time for General agent payment of premiums in the face of a condition in the S for payin^g policy that no waiver of any condition shall be valid P^miums . "^ where oondi- uniess made at the head orfice and signed by an officer tion to oon- of the company (m). ^^^' If the company is a foreign company, its general General agent agents must, for the purpose of receiving premiums, be oomp'^any°fully regarded in the same light as the company itself, and represents ° ,.„. ,,"' ' company as to knowledge and information brought home to such receiving agents is the same as if made or brought home to the P'^^™''^"'^* company itself {n). It is not within the power of directors, &c., of an Agreement by insurance company to agree with an agent (i) for con- oommMoV t? tinuance of payment to him after retirement from the ^gent after » . . . ,. . ™ agency ceased, agency of a commission on premiums on policies effected through him and in force at his retirement, if there is no stipulation that he shall continue in the agency for a stipulated time, nor that the commission shall cease if (k) Montreal Assurance Co. v. M'QilUvray, 13 Moore P. 0. 87-124, 8 W. B. 165. (I) Moffat V. Reliance Mutual Life, 45 U. 0. Q. B. 561. NeUl v. Union Mutual Life, 45 tJ. 0. Q. B. 593. (m) Marvin v. Universal tdfe, 39 Am. Rep. 657, 85 N. Y. 278. («) Wilson V. Genesee Mutual, i5 Barb, N. Y. 511. Campbell v, National Insurance Co., 24 U. 0. 0. P. 133, 144. Moffat v. Ediance Mutual Life, 45 U. C. Q, B. 56 r. 412 THE LAWS OF INSURANCE* the premiums cease to be paid, or (2) for allowance of commission on premiums to his wife and children after his death in the agency (0). Director appointed to select agents at a com- mission. An agreement appointing a director of a life assur- ance company to select agents and medical referees for the company, the director to be paid a commission on policies effected, is not a contract of service within the exceptions to sec. 29 of the Joint Stock Com- pany's Act (7, 8 Vict., c. no), which enacts that all contracts between directors and companies in which the director is interested are void. Consequently such agreement is void, and such director can recover nothing on it (p ). By the Joint Stock Companies Act, 1862, sec. 57, a director vacates his office if he is concerned in or participates in the profits of any contract with the com- pany. Contract by If a director makes a contract in fraud of the com- fraudof™ V^W ^i^^ ^ pcrson cognisant of the fraud, such a company void contract is void even in the hands of an assign for against pur- ... chaser for valuc who is totally innoceut of the fraud (q). value. Larger powers The large powers given to insurance agents in the Ainerioa'than United States, where in many cases they represent England. their Companies for all the purposes of an insurance business, and can therefore bind them to an almost un- limited extent within the scope of such business, render the American cases generally unsafe guides in this country, where powers of a much more limited character are given to the local agents of insurance companies (r). (0) Lewine's case, Eeilly (Alb. Arb.) 174, 15 Sol. Journ. [,828. M'Olure's case, 5 Ch. App. 737, 39 L. J. Ch. 685, 23 L. T. N. S. 685, 18 W. R. 1122. {p) Poole V. National Provincial Life, 27 L. J. (Ex.) 219. (j) Athenoium Life A ssurance v. Pooley, 3 De G. & J. 294, 28 L. J. Ch. IJ9, I Giff. 102, 5 Jur. N. S. 129. (r) Western AssuroMce Go. v. Provincial, 26 Grant (U. C.) 561. AGENTS. 4 1 ; Where an agent is clothed with ostensible authority, Ostensible no private instructions can prevent his acts within the quaMed^by"* scope of that authority from bindinsf his principal ; P"y**^,. 1 1 . , . , T - . ° ^, 1 instructions, where his authority depends, and is known by those dealing with him to depend, on written mandate, it may be necessary to produce or account for the non- production of that writing in order to prove what was the scope of the agent's authority (s). An agent who answered an advertisement for agents Extent of to represent an insurance society, and received a reply agent witboui that the directors had appointed him agent but got no jngtruotions special instructions as to the nature of his duties or the extent of his authority, and no directions as to receiving or refusing notices of withdrawal, or as to transmitting information thereof to headquarters, was held by Vice-Ohancellor Wood a sufficient agent for the purpose of receiving such notice, so that notice to him would be notice to the company, and the person who had given such notice was held entitled to be struck off the list of shareholders (t). A mere casual notice will not suffice; it must be notice to the agent as agent (lo) in the course of business (v). An agent may bind his company by acting on Mistaken ^ T T T J ^ instructions. instructions erroneously denvered, and a company nave company been held bound by an adjustment effected by an agent '^owni. instructed by telegram to decline, which word was in transmission altered into " decide " (x), that giving him ostensible authority to do what he did. If a clerk of the company gives a receipt for a (s) National Bolivian Navigation Co. v. Wilson, S A. C. 176, 209, 43 L T N. S. 60, Lord Blackburn. Montreal Assurance v. M'Cfillivray, 13 Moore P. 0. 87, 121, 8 W. R 165. ^ , ^ „ (t) Hawthorne's case, 31 L. J. (Oh.) 625, 16 L. J. Q. B. 119, 10 W. (m) EdAiia^ds v. MaHin, 1 Eq. 121, 35 L. J. Oh. 186, 13 L. T.[_N. S. 236, 14 W. R. 25. Gale v. Lewis, 9 Q. B. 730. (v) North British v. HaUett, 7 Jur. N. S. 1263, 9 W. E. 880. Haw- thorne's case, supra. {x) Provimeial Co. v. Roy, 2 Stephens, Quebec Digest 400, 414 THE LAWS OF INSUEANCE. premium, they will be bound even if no policy had been issued at the time of fire {y). Agent acting through Bub-agent. Although an agent cannot delegate his authority, there are many things which he may do through a sub-agent, and which are valid when so done ; for example, where a proposal for a life-policy was accepted on behalf of an insurance company by their agent abroad, who acted in the transaction through the medium of a sub-agent, and the premium was paid, it was held binding on the company, although the agent had no authority to appoint a sub-agent {z). Company Where a company by its agent receives money for bound by acts • -t n ^ in i • ■ of agent where ^•^ msurance, and a nre happens before a policy is intention to issued, the company will be liable, even though the another office, insured intended to insure in another ofiice, and in- advertently accepted the receipt, supposing it to be the receipt of such other office. Thus W., as agent of the Commercial Union Company, accepting an insur- ance by M. in that office, W., without M.'s knowledge, ceased to be such agent and became agent for the European Company, and on M.'s application for a fresh policy, W. gave him a printed receipt, filled up for a policy for a month, until a regular policy should be made out. M. did not at first discover that the receipt was on behalf of the European Company, but when he did, he wrote to W., saying he should require to be satisfied of their respectability and standing. Before any policy was made out, the premises were burnt, and the Euro- pean office refused to pay, but M. was held entitled to recover (a). Credit of premium to agent, company not bound to issue policy. Where an application is accepted by the company, but the premium only credited to the agent in the (y) Part v. Scottish Imperial Co., 2 Stephens, Quebec Dig. 410. Duval V. Northern Co., do. 410. (z) Bossiter v. Trafalgar Life Co., 27 Beav. 377. (o) MacJde v. European Co., 21 L. T, N. S. 102, 17.W. R. 987. AGENTS. 41: books of the applicant, the company cannot be made to issue a policy or pay on the footing of its issue, if prepayment of premium is an essential and there be no proof that credit was intended (h), and the sending of a receipt by the agent vrithout actual receipt of the Written money will not complete such a contract. The receipt ^enUnekc- is a " mere acknowledgment in abeyance " (c). *"^ without of money. A man who is and is known to be an agent only Agent to for effecting insurances by policy on payment of a '°„i"J® ^J premium cannot effect a parol insurance, nor dispense payment of • , 1 , r- • T ■ <. 1 T , premium oan- witn pre-payment 01 premium ; and if he does such acts not insure by they will not biad the company (d), but wiU be wZira §^°en/e with vires and void as not being within the scope of his payment, authority. Where a premium due was paid by cheque Payment by to B., an agent of the insurers authorized to receive aglnt'whose premiums, and the cheque was credited to B.'s account, banking ■L-T_ T !• in account wnicn was overdrawn, this was held payment to the overdrawn company, and the company could not either avoid the ^ "'*" ' policy or maintain an action for the premium. The cheque, of com-se, was honoured (e), and an agent, of course, is only bound to hand over an equivalent, not the money received (/). An insurance agent's authority does not empower Agent insurin him to grant an insurance in his own favour binding ti™self. on his principals, even if it be a second insurance, and the prior policy has been granted with the express sanction and approval of the company. His business is to represent the insurance company in dealing with others. In insuring himself he would have to act in two capacities (g). (J) Walker v. Provincial, 7 Grant (U. C.) 137, 8 Grant (XJ. 0.) 217. (c) 8 Grant U. C. 219, Kobinson, C. J. (d) Montreal Amirance Co. v. M'GUUvray, 13 Moore P. 0. 87, 124, 8 W. R. 165. (e) Etna Life Co. v. Green, 38 U. C. (Q. B.) 459. (/)See Bridges v. Garrett, L. E. 5 C. P. 451, 39 L. J. O. P. 251, 22 L. T. N. S. 448, 18 W. R. 815. {g) White v. Lancashire Insurance Co., 27 Grant (U. C.) 61, 4i6 THE LAWS OF mSUEANCE, Agent cannot Even where allowed to insure himself with his insure himself • • ^ j, j. • • t.- against fire principal, an agent cannot insure m Jiis own name beyond ^yj^j^ ^j^g company for which he is agent for a sum ex- oompany 3 r j o^ limit. ceeding the limit fixed by the rule of the company (h). Agent taking If an agent takes an assignment of policy, and of poiky and Credits the company with the premiums after forfeiture crediting j^g^g occurred, the policy will be invalid, but an action company witn _ . . . premiums will, if forfeiture is enforced, lie at law for their after for- . , .. feiture. return (*). Agent taking An authorised agent of an insurance company which heTwas ^'^ceived and accepted an application and negotiated interested an insurance as agent on property of which he was without dis- ° ^ ^ . •' closing such One 01 the owners, and communicated the transaction wasTOid.'^'' "^^ to ^i^ principal without disclosing his interest, and on receiving the policy handed it to the person named in the policy as being assured thereby. The policy was on that ground held void, and the contract being one, other interests fell too (7c). Communica- tions between insurers and agent when privileged. There seems to be some authority for saying that the communications between the insurers and their agent are privileged if they form part of the preliminary investigation of the insurers made with reference to the case (F). Agents for An agent for two insurance companies having autho- have°powe°to ^^^ ^■'"°™ °^® *° accept marine risks to an amount not reinsure one in exceeding $5000, accepted a marine risk for $7700 in favour of that company, but reinsured for $2700 in the other, and directed a clerk to enter a memorandum to that effect in the books of the second company, but gave no notice to that company until after a loss {h) Tucker v. Provincial Insurance Co., 7 Grant (IT. 0.) 122. (i) Buateed v. W. England, 5 Ir. Chanc. 553. \lc) Ritt V. Washington Marine, 41 Barb. (N. Y.) 353. (I) Pacific Mutual Co. v. Butters, 17 Lr. Can. Jur. 309. See Baker V. L. S. W. R, L. R. 3 Q. B, 91, 37 L. J. Q. B. 53, 16 W. R. 126. Grwnt V. Etna Co., 11 Lr. Can. Rep. 128, __ AGENTS. 41; occurred. The reinsuring company was held not entitled to recover back the amount of reinsurance, if paid by the agent on a loss, without proof that the agent acted maid fide in effecting the insurance, or did not conform to the rules of his principals known to the reassured (mi). A practice of the agents of two companies to effect Settlement of reinsurances without immediate payment of premiums, moSS^^ '" but on a monthly balance of accounts unsanctioned by fo^oaut , , n n „ , I •, between two the company, and whereof they had no notice, this agents. reinsurance account not being sent up to headquarters, is not binding on the companies (n). Fire and life assurances are carried on to an enor- Oourte mous extent through local agencies, and not by direct g°pp°^j *° dealings with the oflBcers of the companies at their insurance, headquarters (0). It is consequently of the highest agent not importance to those dealing with such agents, and the authority"'''" courts are inclined to insist that the assured should not run the peril of the agent neglecting strictly to perform his duty (p). For if a policy is to be held vitiated because, in a manner of which the assured is ignorant, the agent goes beyond his authority, no insurance effected through an agent would be safe (q). In America, however, the courts have gone so far as to ' hold that where the insurance agent wrote out the particulars of a proposal, and made a false representa- tion as to the facts of which the assured told him the truth, that the assured could not prove his parol state- ment as against the written falsehood, and could not therefore enforce the policy (r). The agent doing this was, however, by stipulation, the agent of the assured. (to) Canada Insurance Co. v. Western Insurance Co., 26 Grant (U. 0.) 264. {n) Western Assurance Co. v. Provincial Insurance Co., 26 Grant (U. C.) S61. (0) MacHe v. European Co., 21 L. T. N. S. 102, 17 W. E. 587. (p) Wmg V. Ha/rvey, 5 De G. M. & G. 265, 23 L. J. Oh. 511, 23 L. T. O. S. 120, 18 Jur. 394, 2 W. R. 370. (g) MacTde v. European Co., uH supra. (r) Sohrbach v. Germania Fire Ins. Co., 20 Am. Eep. 451, 462, but see Swan v. Watertown Ins. Co., 96 Pennsylvania 37 (1880). Planters Co. V. Myers, 30 Am. Rep. 521. 2 D 4i8 THE LAWS OF INSURANCE. Agreement to grant policy may be Bpecifi- cally per- •formed. Local agent cannot bind company to grant policy. Powers of local agent. Authority to receive appli- cations is not authority to accept them. Authority to receive premiums does not authorise giving credit. Company bound by local agent acting within authority. Specific performance, it would seem, may be had of an agreement to grant a policy of assurance, provided that the agreement be made on behalf of the company by an agent properly qualified to do so and acting within the scope of his authority. But an ordinary local agent has no authority to enter into a contract to grant a policy without the sanction of the directors of the company. He is merely an agent to receive and submit proposals made, and to inform the applicant of the decision of the directors on his proposal. He cannot on receiving the premium say with binding effect that a policy shall be granted. And if an appli- cant trusts such an agent and pays him the premium before receiving the policy, he has no equity to obtain a policy. It would be otherwise probably with a renewal premium paid to such agent, whose receipt, unless otherwise stipulated, would be a good discharge to the assured. If the premium gets to the companies' hands, and from whatever reason, they are not bound to issue a policy ; they must return the premium (s). Power to solicit, receive, and report applications will not imply power to accept them or bind the com- pany, his principals, by stating that the right attached at a certain moment (t). Such an agent would not earn his commission till the company had inspected the property, or otherwise decided on the character of the risk, and would, in fact, be a mere person employed to obtain business. Even if he has power also to re- ceive or remit premiums, this will not entitle him to give credit for the renewal premium beyond the time limited in the policy (u). The local agent of an insurance company must be treated as their officer to communicate with persona (s) lAnford v. Provincial Cattle Go., 1 1 L. T. N. S. 330, 5 N. R. 29, 10 Jur. N. S. 1066, 34 Beav. 291. Henry v. Agricultural Mutual InsuroMce Co., 11 Grant (U. C.) 125, I Lindley on Partnership 248. (t) Stockton V. Fireman's Ins. Co., 39 Am. Rep. 277, 33 La. Am. 577. (u) Critchettv. American Insurance Co., 36 Am. Rep. 230, 53 Iowa 404, and American cases there collected. Busteed v. W. of England, 5 Ir. Ch. 553- AGENTS. 4I< effecting insurances, and what he says or does in that capacity within the proper bounds of his authority must be held binding on the company (v). Delivery to local agents of notice of fire is sufficient Notice to a within a condition requiring notice to the company, ^°°^ *^®"*' unless the policy otherwise stipulates (x). Notice to a local agent will be useless when the Where notice notice ought to be given at the head office (y). Verbal to head™" notice will, however, suffice if not stipulated against («). t^i'o'^g'ai'a* mt insufiBcient. Notice to an agent if he has power (a) to receive such "Verhai notice notice, will bind the company, even though the agent sufficient received such notice in a different capacity, and never agents. communicated it to his principals (&). Mere knowledge privately obtained by a party connected with the com- pany will not suffice (c). The notice as regards fire policies need not be in writing (d) unless so stipulated. Notice to directors must be given to them as such («). Notice to directors. An agent, of course, cannot waive a forfeiture (/) in Waiver of the face of a condition in the policy, that it shall not receipt^of ^ attach until the premium is paid, and that only the premiums, president or secretary should waive a forfeiture (^). But if the directors receive premiums through a local agent after a forfeiture, the policy will be valid (h). {v) Penley v. Beacon Ins. Co., 7 Grant (U. 0.) 130. {x) Peppitt V. North British and Mercantile (1879), i Euss. & Gedd. (Nov. So.) 219. Butterworth v. Western Insurance Co., 132 Mass. 489. (y) HendricTcson v. Queen Insurance Co., 31 U. C. (Q. B.) 547. (2) North British Insurance v. Hallett, 7 Jur. N. S. 1263, 9 W. R. 880. (a) Expte Hennessy, I Connor & Lawson (Ir.) 559. (J) Gale V. Lewis, 9 Q. B. 730, 16 L. J. Q. B. 119. (c) Thompson v. Speirs, 13 Sim. 469. {d) Gale v. Lewis, supra, where no written notice was given. (c) Hawthorne's claim, 3 1 L. J. Oh. 625, 6 L. T. N. S. 574, 1 o W. R. 572. , (/) Jacobs V. EquitaMe, 17 U. C. (Q. B.) 35, 18 do. 14, 19 do. 250. (g) Calhoun v. Union Mutual (1879), 3 Pugsley & Burb. (New Brans.) 13, 23. Butterworth v. Western, 132 Mass. 489. (A) Wing v. Harvey, 5 Da G. M. & G. 205, 23 L. J, Oh. 511, 18 Jur, 394, 23.L. T. 120, 2 W. R. 370, 420 THE LAWS OF mSURANCE. Waiver of forfeiture by agent by receipt of overdue premium. Meaning of proviso as to insured ' ' being in good health." Inspector can- not dispense ■with prohibitory conditions. Effect on companies of their agents filling up applications. Although, as a rule, an agent cannot waive a for- feiture, it may be done under special circumstances, as in the following case : By the non-payment of re- newal premium at the stipulated time a policy of life insurance became forfeited. The policy provided that payment, if made when overdue, would not be considered as continuing the policy unless the insured was in good health at the time, but by the practice of the company the agents might receive payment of such premiums and issue the renewal receipts within thirty days after the stipulated time, provided the insured were then in good health. It was held that the proviso as to the insured being in good health did not apply to his actual state, but to the general understanding of the parties and their consequent action thereon. Where, therefore, at the time of paying the premium to and the giving of the receipt by the agent, the insured had in fact received an injury which soon after resulted in death, but it clearly appeared that no danger was anticipated by either the insured or his medical attendant, or ' by the company themselves, who had made inquiry and had full knowledge of his condition, it was held that the payment was good and the forfeiture waived. An inspector of risks cannot dispense with conditions relating to the keeping of prohibited or highly hazardous goods either at all or largely in excess of the allowable quantities, or to a mis-description of the mode of heating, or the precautions required in case of steam being used, or with respect to chimneys or stove pipes, or the de- posit of ashes, or the proximity of dangerous places (i). If in every case the proposals for a contract of in- surance emanated from the would-be assured, probably no question could arise as to the dealings of insurance agents with such applications. But often (and especially in America and the colonies) the companies' agents solicit insurance and fill in the applications of the as- (i) Mason v. Hartford Fire Co., 37 U. C. (Q. B.) 437, 441, Agents. 42 1 sured, and mucli litigation has arisen and many pre- cautions have been taken by the companies to avoid the consequences of such act on the part of the agents. In some cases it is declared that if the agent fills in the proposal he shall be deemed the applicants' agent. In others he is privately forbidden to fill in the proposal. In the former case the insurer is exempted from (Jc) the liability for his agent's mistakes which would otherwise fall on him {J). Even where an agent is made the agent of the applicant for the purpose of filling in the proposals, this will not in every case bind the assured to what the agent puts down. Thus where the assured to the question of encumbrances began to tell about a mortgage, but was stopped by the agent, who said this was im- material, the insurances being on chattels, and wrote down answer none, the Court of Common Pleas in Upper Canada held that the insured had made no misrepresentation and could recover (m). The authority of an agent appointed by the general Effect of war agents and local board of directors in the city of New ageiKsy.'^'^ York of an English insurance company was held not revoked or suspended by the existence of the state of war arising from the secession of the South States. But this went on the ground that the insurers were domiciled abroad, and the New York board merely their agents with a revocable authority (n). The contract of agency was with a principal of neutral domicile, and therefore unaffected by the war (0). Payments of premiums to such agents after war begun would bind the insurers {p). (k) Ncmghter v. Ottawa Agency Insurance Co., 43 U. 0. (Q. B.) 121, Sowden v. Standard Insurance Co., 44 U. 0. (Q. B.) 95. ' Bleakeley v. Niaga/ra District Mutual Fire Insurance Co., 16 Grant (TJ. 0.) 198. Soniers v. Athenceum Co., 9 Lr. Can. E,ep. 61, 3 Lr. Can. Jur. 67. (I) Parsons v. Bignold, 13 Sim. 518, 15 L. J. Ch. 379, 7 Jur. 591 Expte Forbes and Co., 19 Eq. 485, 44 L. J. Ch. 761, 23 W. R. 465. (m) A shford v. Victoria Mutual Ins. Co., 20 IT. 0. 0. P. 434. {n)' Robinson v. International Life Ins. Co., 42 N. Y. 54. (0) liid. Seton v. La^o, i Johnson (N. Y.) i. Ip) Martin v. International Life, 62 Barbour (N. Y.) 181. 422 THE LAWS OF INSURANCE. What endorse- In England agents of fire insurance companies are MiiTma^e." usually authorised to make endorsements on policies in cases of (a) Eemoval (q). (b) Transfer of the sum assured to a like risk. (c) Permission to insure in another office, (d) Alteration of the name of the assured if it be incorrectly stated in the policy. (e) Change of firm. (f) Notice of a mortgagee's interest in a policy or of a charge thereon. (g) Marriage, purchase (r), or gift. In cases of sale, satisfactory evidence will be re- quired of the assent of the assured. Interim The agent of an insurance company authorised to be'Sgned^by" ^^EP- interim receipts for premiums cannot delegate agent's agent, j^jg functions, and if he engages another person to take risks for him, interim receipts signed by the latter do not bind the company, unless by subsequent ratification on the part of the company or its agents (s). Contracts of ^^ ^^ agent has power to enter into contracts of insurance by insurance which may or may not be approved at head- agents ... . . . generally valid quarters, they are valid till receipt of notice of rejection rejec e . ^^^ return of the premiums paid, and it seems to make no difference if the agent employs sub-agents in getting assurances. If he does, their receipt for premiums binds {q) Chalmers v. Mutual Fire Co., 3 Lr. Can. Jur. 2. ()•) Frost V. Liverpool, London, and Globe, 2 Hannay (New Bruns.) 278. (s) Summers v. Commercial Union, 6 Canada (S. C.) 19. But see Jlossiter v. Trafalgar Life, 27 Bear. 377, AGfiNtS. 42 the agent as much as if signed by him (;!). For though an agent cannot delegate his authority to " another person, he is entitled to perform and must perform a great number of his acts and functions through the aid of persons to whom he delegates his authority ; and acts done by such aid, if proper and within the scope of his authority, will be his acts " (u). An insurance company may be liable for the fraud Company of their agents acting within the scope of their agent's "fraud authority, at least to the extent of the gains of the company obtained by the agent's act. This liability seems to be based on the ground that "every person who authorises another to act for him in the making of any contract undertakes for the absence of fraud in that person in the execution of the authority given as much as he undertakes for its absence in himself when he makes the contract'' (v). The agent and principal will in such a case both be liable (x), and the same would be the case if a sub-agent commits a fraud and the agent profits by it (y). But no liability falls upon an insurance company Company no for fraud or misrepresentation of the secretary outside of agent out- the business of the company or the ordinary scope of ^^giagg'^f ™' his duties (z). If an interim receipt be delivered by an agent fully Company . ,■: . ,•• •. compellable authorised thereto {a), and contaming a promise to issue policy issue a policy in so many days (b), and the insurers pafd!™™"" neither do so in the time nor refund, they will be held {t) Rossiter v. Trafalgar Life Co., 27 Beav. 377, affirmed on appeal. MacUe v. European Co., 21 L. T. N. S. 102, 17 W. R. 987. (m) Rossiter v. Trafalgar Life Co., 27 Beav, 377, 381. (d) Bramwell, L. J., in Weir v. Bell, 3 Ex. D. 238, 245, 47 L. J. Ex, 704, 38 L. T. N. S. 929, 26 W. R 746. (x) Oockbum, C. J., in same case, p. 248. (y) Gidlen v. TJwmson's Trustees, 4 Macqueen, H. L. 424. {z) Partridge v. AlieH Life Co., 16 S. J. 199. Pinchin v. Realm Ins. Co., 0. A. (Feb. 1884). Giffard >'. Queen Ins. Co., i Hanuay (New Bruns.), 432. , (a) Mead v. Davidson, 3 Ad. & E. 303, 309. \b) Madcie v. European Co., 21 L. T. N. S. 102 17 W. R. 987. 424 THE LAWS OF INSURANCE. Company can- not adopt contract by agent outside ita business. bound as if they had issued the policy (c), or be made to issue the policy {d). An insurance company cannot adopt contracts made by its agents which are not within the scope of the company's business. Thus a company formed for life assurance cannot undertake marine assurance, and even if contracts of marine assurance are granted and for a time treated as binding, the courts will not allow recovery thereon, but will order the premiums to be repaid or allow them to be proved for in the winding up (e). Company Nov can one company adopt the policies granted by poi^ies^of"^ another company, unless powers in that behalf are another given in the deed of settlement and executed con- company so ° ■ t / .empowered, formably therewith (/). Company can But where a policy is intra vires, so far as the com- contfaot^with- P^^J ^^ Concerned, though without the scope of the agent's in its powers, authority, the company can ratify the policy. Some tboughbeyond ,. . '^ , f.^, j t, xv j- j. ^t, i,- i, agent's autiio- policies may be ratified by the directors — those which "*'^' they could themselves have made. Some which even they cannot ratify may be ratified by the shareholders, if though outside the authority of the directors they are permissible by the constitution of the insurance company. Where a local agent agrees to grant a policy, re- ceives and remits the proposal and premium, and the directors accept the premium, this will amount to rati- fying the agreement (g). In England they are bound under penalty to issue a policy within twenty-one days of receiving the premium. (c) Patermn v. Boyal Ins. Co., 14 Grant (U. 0.) 169. (d) Albion v. MiUs Ins. Co., 4 0. S. 0. (ist series) 575, 3 W. & S. (So.) 218, I Dow & 01. H. L. 342. Christie v. North British Ins. Co., 3 0. S. 0. (ist series) 519. Mead v. Davidson, supra, note (a). (e) Ee Phoenix Life Ins. Co., Burgess and Stock's case, 2 J. & H. 441, 31 L. J. Ch. 74p, 10 W. R. 816. (/) Era Assurance Co., i De G. J. & S. 29, 2 J. & H. 400, i H. &M. 672, 30 L. J. Ch. 137, 3 L. T. N. S. 314, 9 W. E. 67, 11 W. R, 204, 320. (g) Paterson v. Royal Ins. Co., 14 Grant (XJ. C.) 169. Agents. 42 Where a policy has been effected by an agent with- Company can out authority, it may be ratified by the principals even loss/* after a loss has happened. This rule is well established as to marine insurance, though it does not accord with the general principle that ratification can only be effec- tual when he who ratifies could at the time when he so ratified have made the original contract (h). And there seems no reason why the rule should not apply to insur- ance other than marine ; but since it is mainly based on mercantile custom and convenience, it is somewhat doubtful whether it would be applied by the courts to insurances not purely commercial. This has, however, been done in Canada, where it has been held that an Ratification assured could after loss by fire ratify a policy effected for fire^L oLadi him in a company other than that to which he had applied, and the analogies of marine insurance were followed (i). Where a person not himself interested in a thing insures it, or directs its insurance on account of (Ic), or intends the insurance to protect the interest of a person really interested (I), the latter may ratify the act of the Ratification til T ijiiii fi of insurance former, and adopt the policy and take the benefit on behaU of thereof (m) ; but if such an insurance was not on ^°°*'^®'^- behalf of and ratified by another, it would be void for want of interest (n). A Danish ship, after an embargo had been laid on Danish ships by an Order in Council, but before such order came to the knowledge of the captors, was captured on speculation by a British vessel of war. The prize was insured by directions of the captors in a policy for (h) WiUiama v. Nm-th China Imurance Co., i C. P. D. 757, 35 L. T. N. S. 884. (i) Oiffai-d V. Queen Insurance Co., i Hannay (New Brans.) 432. Ogden v. Montreal Fire Co., 3 U. C. (C. P.) 497, a very full case. (h) 14 Geo. III. c. 48, s. 2, (I) Ogden v. Montreal Ins. Co., 3 U. C. (0. P.) 497. (m) Lucena v. Craicford, 2 B. & P. 269, i Taunt. 325. Wolff v. Horn- castle, I B. & P. 316. Stirling v. Vauglum, 11 East. 619. Routh v. Thompson, 13 East. 274. (n) Eouth V. Thomson, 13 East. 274 285 (181 1). 426 THE LAWS OF' INSURANCE:. the benefit of all concerned. The court held that the policy enured to the benefit of the king, who had the right to adopt and did adopt the capture, and who had by the captors lawful possession of the prize, and who, if possession had been wrongfully taken, would have been bound in honour to make restitution or compen- sation to the injured party (o). If the policy had been made on account of the captors, it would have been void for want of interest {p), since they could only capture lawfully for the king, or the seizure was piratical {q). Eflteot of direo- And in the same case it was decided that direction on another"™ to insure property on A's account does not amount to account. ^u allegation that A has interest in the property, but only to a direction to insure for the benefit of those concerned, and charge the premiums in account with the person directing the insurance. Such direction must be for those concerned, and within the scope of such an agent's agency, and in the particular case the agent was held to be an agent on behalf of the Crown, being appointed to act by servants and agents of the Crown responsible to the Crown for the captured vessel, and having themselves no interest of their own therein in respect of which they could appoint an agent (r). Insurance for Hagedm'fh V. OUverson, 1814, 2 M. & S. 485, is an oufauthority. extreme instance of the same rule. The court there decided that a man had a right to effect a policy on the chance of its being adopted, certainly for those actually interested, and possibly for those who might subsequently become interested, and that a person interested, though it was purely optional with or at most only morally binding (s) upon him to adopt, (0) Routh V. Thompson, 13 East. 274, 289 per Bayley, J. (p) Same case. (j) Same case, p. 284, EUenborough, C. J. (r) This was a case of constructive agency. Dampier, J., in Hagedom V. OUverson, 2 M. & S., at p. 493. {«) Per Bayley, J. 492. AGENTS. 42 could by doing so become privy to the policy and sue upon it (t). The man who eifected the insurance and paid the premiums risked them, as he was acting out- side the scope of his agency (v,), nor could he at any time before the risk ended have recovered the premiums back, as the insurer could have answered that the persons beneficially interested were still entitled to adopt the policy (v). In America it has been held that where a ware- BaUor entitle houseman covered by insurance his own goods and ppiio" ^^ittov others whereof he was bailee, he could not defeat an ^liyithority, action by the bailor for a share of the insurance on the fication. ground that he did not authorise the policy or know till after loss that the policy existed, and failed to ratify the warehouseman's acts before loss paid (x). But if such an insurance does not in the event Bailor cannot cover more than the loss suffered in respect of his own poii'Jyoriy*" goods, the bailor will not be entitled to any part of "o^^rs , T „ , , . y ^ assured s loss. the proceeds of the policy (y). If an insurance agent agrees to grant a general policy Renewed and to renew the same, the renewal refers to the be conformabl original agreement, and not to a policy not conformable *° 'he agree- ° ° jr ^ ment to grant to the agreement, issued but not shown to the assured ; original poiicj and the insurers, if they have not power to grant a policy according to contract, will be liable in damages for holding out that they could (z). The agents for effecting policies and for adjusting Agents for losses are not necessarily the same (a). effecting polio; •' *• ' and adjusting — . ■- loss not same, {t) Same case per Ellenborough, C. J. 490. («) Per Dampier, J. 493. {v) Per Bayley, J. 492. (k) Home Insurance Co. v. Baltimore Warelioum Co., 93 U. S. (3 Otto) 527. Snow V. Oarr, 61 Ala. 363, 32 Am. Rep. 3. \y) Dalglish v. BucJianan, 16 C. S. 0. 332, 26 Scot. Jur. 160. (z) Albion Ins. Co. v. Mills, 3 Wils. &, Shaw {Sc. App.) 2l8, I Dow & CI., H. L. 342. [a] See Mokes v. Amazon Fire, 51 Maryland 512; 428 The laws of insurance. Agent of the assured. The agents of the assured are of two kinds — (i.) Those commissioned by or who undertake to obtain insurance for him. (2.) Those to whom he makes reference for purpose of information necessary for the guidance of the insurers in deciding whether they will or will not issue a policy (6). The first class includes insurance brokers and other persons, e.g., solicitors, and those who act for others in obtaining policies (c). Agent negli- gently- insuring himself liable. If a party undertakes to procure or renew a policy for another, and proceeds to carry his undertaking into effect by getting a policy underwritten, but does it so negligently or unskilfully that no ' benefit can be derived from the intended insurance, he will be liable to an action at the suit of the person for whom he undertook the duty, even though he received no con- sideration for doing so {d). Delay till day after ' agent received instructions, not negligence. Failure to effect a policy which usually excepted the risk. In Bmias v. Wylie (May 22, 1883, Q. B. D.), an action arising out of the Hatton Garden jewel robbery, the plaintiffs, owners of precious stones then stolen, posted with the jewels an order to insurance brokers to insure them. The broker's clerk went at half-past eleven on the next day to Lloyds' to effect the policy, but the robbery being then known, the policy granted excepted any loss thereby. The jiiry found that the brokers had not been negligent in not sooner effecting the policy (e). In Canada agents were held not liable for failing (5) See per Lord Campbell in Wheeltm v. Harditty, 8 E. & B. 232, 259, 27 L. J. Q, B. 341, 31 L. T. 303, 6 W. R. 539, 3 Jur. N. S. 1 169. (c) As to their powers see Xenos v. WicWiam, L. R. 2 H. L. 396, 36 L. J. Ex. 313, 16 L. T. N. S. 800, 16 W. R. 38. {d) WUkinson v. Coverdale, 1 Esp. 75. («) See also Nicol y. Brown, Diet, of Decisions (So.), vol. xvii. p. 7089. AGENTS. 42 to procure a policy undertaking the risk of loss by improper navigation, it being proved that the usual form of policy there granted excepted such risk, and that no special instructions had been given (/). If a man on being requested to effect a policy says he will be his own insurer, this does not make him an Own insurer, insurer for the owner, nor liable as an agent who has undertaken to insure, but simply means that he will not insure his own interest in the goods {g). An agent to effect an insurance is not entitled to Agent canno receive a commission from the insurers and the assured, misdon^from and if he does so the assured may recover the amount insurer and , , assured. from him (h), unless he has acquiesced in the receipt by the agent of such commission. If discount be allowed for prompt payment, it belongs Discount to the principal and not to the agent {%). princ^ai." Misrepresentation made by the assured's agent Principal (whether due to fraud or negligence) in procuring a f^ud ot'^'' policy is equally fatal, whether made with the know- """^^f^'g^g^t ledge and consent of the principal or not, since in either case the ground is the same, that the underwriters are deceived (Jc). Notice to the assured's broker will not be notice to Notice to as- the insurer (0, but the knowledge of the agent will ^^"-^'^ ^"^"^^ bind his principal (m). There is no analogy between the statement of the statements c life or the referees in the negotiations for a life insur- j;f^3'o^°' ance and the statements by an insurance broker to e^'J,'^.*^^*^^'"' (/) Gooderham v. Marlett, 14 U. C. (Q. B.) 228. (g) Ibid. (h) Copp V. Lynch (1882), 26 Sol, J. 348, 361- (i) Queen of Spain v. Parr, 39 L. J. (Ch.) 73. (i) FitzHerheH v. Mather, 1 T. R. 12, and see per Story, J. Carpenter V. Americam Insurance Co., I Storey, Rep. 57. (I) M'LacMan v. Etna, 4 Allen (New Bruns.) 173. (to) Lynch v. Dunsfm-d, 14 East. 494. 43° THE LAWS OF INSURANCE. underwriters by whicli he induces them to subscribe the policy (n). "The life" If reference is made to the person on whose life a insuredf when policy is sought for answer to a particular question, the referred to assured is bound by that answer, the "life" beincr his by him. ° agent for making it, but he wUl not be bound by other answers in respect whereof reference was not made by him (o), nor by the non-disclosure of material facts by the life, of which insurers and assured are equally ignorant (p), and as to which the assured has not been asked. But a general reference to the life will make him the assured's agent (q) in obtaining the policy, and any fraud, misrepresentation, or concealment by him will defeat the policy (r). It is usual, however, now to in- sist on answers by the life and to have them warranted. Medical man Eeference to a medical man falls under the same as agent. ' rijies, and his representations as to the health of the life bind the assured if material, and if warranted even when immaterial, and this even though the insurer's medical officers have examined the life or have been informed by him of the matter in question (s). («) Whedton v. Eardisty, 8 E. & B. 232, 270, Campbell C. J., 27 L. J. Q. B. 241, S W. K. 784, 6 W. R. S39, 3' L- T. 0. S. 303, 3 Jur. N. S. 1 169. (0) Wiedton v. Hardisty, ubi supra. ip) Ross V. Bradshav), I Wm. Bl. 312, 2 Park Ins. 934, 8th edition. (q) Maynard v. Rhode, 5 Dowl. & Ry. 266, I C. & P. 360, and cases discussed by Campbell, 0. J., in Wheelton v. Hardisty, 8 E. & E. 232, 271, sqq. (r) Forhes v. Edinburgh Life Assurance Co., 10 C. S. C. (ist series) 451 (1832). (s) Connecticut Mutual Life Insurance Co. v. Moore, 6 A. C. 644. ( 431 ) CHAPTEE XXV. ACCIDENT. Accident insurance is a branch of life insurance, by Accident which persons are enabled to provide against loss to ''^^"''*'"'®' themselves or their families in case they are injured or disabled for a time, or permanently, or killed by some one or other cause operating on them from with- out. Ordinary life insurance affords no provision for the assured's family in any cases short of his death or of his reaching a given age. And while friendly societies supply a mode of insuring against disability through sickness, accident insurance guarantees a man against the consequences of disability through falls and personal injuries not caused by disease or the wilful act of the person insured. A policy of insurance against accidents as usually Accidental n • 1 • -n • 1 policy not drawn is not a contract of indemnity. Alderson, B., said, contract of " This is not a contract of indemnity, because a person '" ^"'"'^y- cannot be indemnified for the loss of life as he can in case of a house or shop " (a). If the accident be caused by tort of a third person, the insurers are not entitled either to deduct from the amount paid by them anything recovered by the assured from the tort-feasor, nor are they subrogated to his rights against the tort-feasor (6). The tort-feasor cannot claim to have the amount (a) Per Bramwell, B., in Bradhum v. Great Western Sailvsay, L. R. 10 Ex. I, 44 L. J. Ex. 9, 31 L. T. N. S. 464, 23 W. R. 48. But see Theobald v. Railway Passengers', 39 ^^°^- °- 60, s. 8. (i) 38, 39 Vict. c. 60, a. 8 {a}. (m) ShiUeng v. AccidentdL Death Co., 1 P. & F. 116, 2 H. & N. 42, 26 L. J. Ex. 268, 27 do. 17, 29 L. T. 98, S W. R, 567. (n) Same case. ACCIDENT. 435 Aberdeen, with liberty to break the journey given him by the railway company, would not be insured against accidents happening to him if he chose to go to Scarborough in the time allowed him at York, for though travelling he would be deviating from the journey for which'he was insured. It would, however, probably be otherwise if his train, through some accident or negligence of the railway company, deviated on to a branch line and he was there injured. Alderson, B. (o) defined a railway accident to be Railway "an accident occurring in the course of travelling definftion. by a railway, and arising out of the fact of the journey. It does not necessarily depend upon any accident to the railway or machinery connected with it ; " but Pollock, C. B. (p. 5 7) declined to lay down any general rule. He, however, in the case before the court laid em- phasis on the following facts, viz.: — (i.) The plaintiff was a traveller on the railway. (2.) Though at the time of the accident his journey had in one sense terminated by the carriage having stopped, he had not ceased to be connected with the carriage, for he was still in it. (3.) The accident happened without negligence on his part, and while doing an act which as a passenger he must necessarily have done, for a passenger must get into the carriage, and get out of it when the journey is at an end, and cannot be considered as disconnected with the carriage and railway, and with the machinery of motion, until the time he has, as it were, safely landed from the carriage and got on the platform. The accident is attributable to his being a passenger on the railway, and it arises out of an act immediately con- nected with his being such passenger." Where the journey insured for is not wholly with- Breaking out break, and in the same conveyance, the policy will, ^°"™®y- it would seem, cover passage from railway to steamer (0) Theoiald v, Railway'J'assengers, 10 Exch. 58 mpra. 43<5 THE LAWS OF INSUKANCE. Insurance ticket for particular journey. Assured must be twelve years of age. or from one conveyance to another (p). But where the insurance is by public or private conveyance between two points, and the assured finds no conveyance at a certain stage of his journey and tries to complete it on foot, he will, it seems, not be protected (q). Insurances against railway accident are usually effected by ticket, purchased at a station like a railway ticket. The contract for such insurance is effected by the sale and purchase of such ticket from the proper person (usually the ticket officer of the railway com- pany). By the Eailway Passengers Assurance Com- pauy's Act, 1864, sec. 6 (r), it is provided that in all cases, tickets of insurance for particular journeys shall be held to be a valid execution by the company of the contract set out in the schedule thereto, and that nothing further shall be required to be done by the company in order to legally bind the company to the perform- ance thereof. This mode of contracting is subject to a disadvantage, that the assured is not identified, and may give away his ticket without much danger of discovery. The contract in the said schedule is to pay to any person over the age of twelve, who has duly, and for the premium demanded, obtained one of the company's insurance tickets, and sustains an injury caused by an accident to the train or to the carriage while travelling during the particular journey for which the ticket is issued. Amount of The compensation payable is as follows, viz. — compensation. -Y^There the amount payable in case of death is /looo, and the assured is not killed, but totally disabled, he is entitled to ^6 per week, but if partially disabled to j^i, I OS. per week. If the sum insured in case of death is ^500, and the assured is not killed, but totally (p) See Norih/rwp v. Railway Passengers' Assurance Co., 43 N. Y. 516- (2) Southward v. Railway Passengers' Assurance Co., 34 Connecticut 574- (r) 27, 28 Vict. c. 125.^1 ACCIDENt. 437 disabled, he is entitled to ;^3 per week, but if partially disabled to i 5 s. per week. If the sum insured in case of death is ;^200, and the assured is not killed, but totally disabled, he is entitled to ;!f i, Ss., but if partially disabled to 6s. 3d. per week. But the Act provides different rates for excursion trains. If there be con- tributory negligence in the assured he cannot recover, and if any claim is fraudulent, the company may recover back the money paid (s). This form of contract by ticket issued on demand and tender of the proper premium is possible for the insurer, because the risk to be run is calculable before- hand, and the occupation, age, and habits of the assured can very seldom increase the probability of an accident happening while the assured is travelling. But where drunkenness or any affliction increasing liability to accident is apparent in the applicant, the railway com- pany would have a right to refuse to issue an insur- ance ticket to him; the words of the statute are permissive, not obligatory (t). Time policies against accident are effected in the Time policy same way as ordinary time policies, on the basis of a aoddent. proposal and declaration signed by the applicant, con- JbiSe^to"* taining such information as the insurers deem necessary continue. and good faith requires. But there is no obligation in the insurer to continue an accident policy, as there is in the case of a life policy («). A man seeking insurance against accident will be What must be -., . . n T • T T • stated in bound to disclose any circumstances 01 wnicn ne is proposal for aware which he thinks would make the insurers decline p^i-fy^**^ (s) 27, 28 Vict. 0. 125, s. 3 sched. (<) Ibid. B. 4. (u) Ibid. Simpson v. Accidental Death, 26 L. J. C. P. 289, 30 L. T. 31. Tor form of such, 2 0. B. N. S. 257, 5 W. R. 307, 3 Jur. N. S. 1079. 438 THE LAWS OF INSURANCE. to insure him or charge a higher premium, as for an increased form of risk. The applicant is required to declare that he is in good health at the time of application ; that he has never had a fit of any kind, or paralysis, or gout, or delirium tremens; that he has no rupture, physical defect, or deformity ; that his habits are at the time of application, and have always been, sober and temperate, and that there is nothing in his occupation, mode or habits of life rendering him peculiarly liable to accident, and that he knows of nothing which he thinks would make the insurers unwilling to take his risk ; and this declaration, with certain specific answers, is made the basis of the contract, and if they are not in aU respects true, the policy wiU be voidable, and all premiums paid thereunder subject to forfeiture. Queetionspnt The particular questions put are of the following iSsS'*'^ kind, (i.) As to occupation. (2.) As to previous accidents (if any), requiring medical or surgical attend- ance, with particulars (if any). (3.) As to previous or subsisting assurances against accident. (4). As to refusal to accept proposals or renew policies. (5.) As to compensation (if any) received for personal injury. Even if this declaration were not made, nor these questions asked, most of the information warranted therein would be requisite under the general principles of insurance law, especially that relating to his physical condition. For certain ailments and accidents dimi- nish a man's control over his movements, and increase his liability to accidental injuries. The risk also varies to some extent according to the trade or calling of the insured, and the insurers divide occupations into several classes, according to the greater or less liability to accident found on the average to be attendant on such occupations. The person seeking AOOIDBMT« 43^ iniuranoe is, as has been said, usually asked to state Auund miut bis profession or oooupation. If he state it falsely, oooupfttira. the policy will be void by its terms under the rule in Anderson v. Mtmg&rald (if), whether the profession or oooupation stated be more or less or as hazardous as the real occupation of the assured (k). Description by the assured of himself as an esquire ironmonMr is no answer to a question as to profession or oooupa- J,"Sii, " tion (y), but a mere representation that the assured is in that position of life in which people are usually styled esquires («). Where a man being engaged in trade as an ironmonger calls himself an esquire, and says nothing about the trade, this does not amount to a statement false in fact. At most he has not stated all he might have stated. But this only makes his statement imperfect, not untrue (a), and the court will not deem such an omission to be a au^rmio veri or Oockburn, L. O.-J., however, dissented from the decision, and considered that by calling himself esquire the ironmonger virtually described himself as of no oooupation, and conveyed the impression that he was not iu trade (h), Many of the questions' on accident policies arise Aooid»nt, concerning the true meaning of the word accident, and it is difficult so to define the word as to include the innumerable mishaps which happen in the daily course of human life \ and it is often equally difficult to decide whether a mishap comes within the risk taken, or the exceptions made, by the terms of a particular policy. ;v) A H. L. 0, 4841 17 !fw, 995 !-.'t, N. S. 633, 6 Jur. N. S, &, fia;, 8 VT. k 41. S63- _ . ,, ,,, [y) Per HiU, J., la Pirrim v. mrim and 2Vov«B«c«, a E. & E, 317, («) atiai. 1) VTUUiuni, J., 1b mm oar«, 334 {(km mo.) a) Wlghtman, J., mm cms, p. 333. ft) E 311. 44D THE LAWS OF INSDRANCE. Accident de- finition. Sunstroke. Accident and resulting injury distinct. Eupture by jumping from train. In North American lAfe, and Accident Co. v. Bur- rovghs (8 Am. Eep. 2 1 6), accident is defined as " an event that takes place without one's foresight or ex- pectation ; an event which proceeds from an unknown cause, or is an unusual effect of a known cause, and therefore not expected ; chance, casualty, contingency." In Sinclair's case (d), accident was defined as includ- ing violence, casualty, and vis major, hut not as includ- ing sunstroke, which the court classed with injuries from malaria, exposure to the weather, &c. It is a known consequence of undue exposure to the full heat of the sun, and in no way to be classed with the unforeseen, though it operates aib extra. The injury and the accident causing it are distinct, and must not be confounded. A man may be acci- dentally poisoned, and his death in that case results from something unforeseen in the course of nature, which does not operate externally, but the introduction of which into the system is ex hypothesi a pure accident. If such a case happened, unless death by poison were excepted, the insurers would probably be liable. The accident would be the fortuitous reception of the poison into the body. The injury would be the natural result of the poison when so received, and would thus be the effect of which the accident would be the cause. American decisions go somewhat far in restricting the definition of accident, following out the distinction already indicated between the accident and injury. Thus it has been held that rupture caused by jumping from a railway train before it had stopped was not a bodily injury effected through violent and accidental means, on the ground that the rupture was the result and not the means, and that the injured man meant to jump down and did so, and that nothing unforeseen happened in jumping down (e). {d) Sinclair v. Maritime Passengers, 3 £. & E. 478, 4 L. T. N. S. IS, 30 L. J. Q B. 77, 9 W. B. 342, 7 Jur. N. S. 367. (e) Southard v. Eail/way Passengers Assurance, 34 Connecticut 574. ACCIDENT. 441 In Kentucky (/), a man who put his arm out of injury from window and got it injured against a post, was held out o"window. disqualified by negligence (ff). The true question would be rather whether the act was necessarily con- nected with the travelling, and negligence would have nothing to do witli the matter (/i). Putting out the arm to close a door inadvertently left unfastened by the company, or to catch something blown by the draught out of the carriage, would seem to be acts arising out of the journey. But it might bo otherwise where a man put his arm out merely to feel the air or the ruin. Such an act, whether negligent or not, Kegiigonoe would not arise out of any act immediately connected with the journey. Where a man ran to catch a train, and missing a Fatal fall step fell and was killed, iu America it was held J^ oatoMraln.* that actual travelling included the necessary getting into the train (i). Drowning is an accidental injury (k) within a Drowning, policy providing that no claim should be made in respect of any injury unless the same should be caused by somo outward and visible means of which satisfactory proof could be supplied to Lho directors. When n man is fouml doiul in the water, he may Asuured found be presumed to Imvo come to his death by drowning and not by fits. Even it he fell into the water in a fit and got drowned, the insurer would be liable, as death would bo caused by the action of the water and not by the fit (I). {f)J\rord V. Mlasifniri"'- I'""','/ /•(/''. 4 '*""''• C"^?-) S3S- tg) UmUvny PMSongtirs' AH.sumnoo Co. Aot, 1852 (iS, l6 Vict. cap. 0, s. i33),proviily» that uogliganoo iimybo insured against by that company. (h) Soo Oliamiilin v. AfiVira.v J'oHumgcn, 6 Lansing (N. Y.) 71, hold- ing tlmt contributory nogHgonoa is no dofonoo on a policy of accident insurance. t.. /tt a \ U) 2'ooley V. llailinii/ r,t.mn(ttn Assurance Co., 3 Bisa. (U. S.) 399. (k) Trew v. Railimi/ r.mauim', 6 IT. & N. 8w, 30 L. J. Ex, 317, 4 L T N. S. 8n, 9 W. R. 671, 7 J"r- N. S, 878. Eeynolda v. Acci- dculal, 32 L. T.'N. S. 820, iS W. R. 1141. •,„ -n ^ (I) Wifui>cai' V. .1 coidental, 6 Q, B. D. 42, 43 ^- T. 4S9. ^9 W. R. 1 16. 442 The Laws of insdrance. Presumption If a man might have come to his death by acci- Buicide. dental drowning or suicide, the presumption will be in favour of accident rather than intention (m). Falling on railway. Sprain. If a man is seized with a fit and falls on to a railway line on which a train is coming, and is so run over, the cause of death will not be the fit but the being run over {n). Sunstroke is not an accident within a policy for compensation for any personal injury from any acci- dent which should happen to the assured (o). Assured sprained muscles of his back in lifting a heavy weight, and was held entitled to recover under a proviso that the injury must be due to a material or external cause operating upon the- person of the insured (p). Policy against death by accident whilst travelling by public or private conveyance. Assured left the steamer to walk home, and while so doing was injured by an accident from which he died. The Supreme Court of the United States held that his own legs were not a conveyance public or private (2). Exercise Tfith In America, death caused by rupture of a blood- ofVood"^ "'° vessel while exercising with Indian clubs, is not vessel. accidental death if the clubs were used in the ordi- nary way, and no unforeseen accident, unusual circum- stance, or involuntary movement of the body occurred which in connection with the movement of the body brought about the injury (r). (m) Mallory v. Travellers, 47 N. Y. 52, 7 Am. Rep. 410. (n) Lawrence v. Accident Co., ^ Q. B. D. 216, 50 L. J. Q. B. 522, 29 W. R. 802 (1881). (0) Sinclair v. Maritime Passengers' Insurance Co., 4 L. T. N. S. ISi 30 L. J. Q. B. 77, 3 E. & E. 478, 7 Jur. N. S. 367. (p) Martin v. Travellers' Co., I F. & F. 505. (2) Ripley v. Insurance Co., 16 WaUaoe, U. S. 336. (r) See M'Ca/rtky v. TravelUrs, 8 Biss. C. Ct. U. S. 362 (U. S. Dig. 1,882), p. 496. ACCIDENT. 44 If death is due to inflammation or abscesses on the Rupture of lungs, consequent upon the rupture of a blood-vessel Matmatfok by over-exertion, such rupture will be held the proxi- °^ ^^''ss- mate cause of death and the death accidental, unless independent lung-disease supervened before the rupture or slumbering disease was brought into activity by the rupture (s). It is usually stipulated that death must be caused Death must solely by accident to entitle the representatives of the soiei^bf assured to recover under the policy. If death is caused accident to by peritonitis due to a violent and unintentional blow assured. in the stomach, this has been in America held to be death by accident (t). So also in the case of hernia due to an accidental fall (u). But where erysipelas supervened upon a wound, the death that followed was considered to be the result of the disease ratherthan of the wound, and it was held that the insurers were not liable (v). Death under surgeons' or physicians' hands is ex- Death under cepted in most if not all accident policies. In America dooto^'tanda it has been held that death caused by taking accident- ally an overdose of opium, a proper dose having been prescribed, is within this exception (x). These policies usually contain a clause to the follow- Usual ing effect, " but it does not insure against death or dis- accfdent" ™ ability arising from rheumatism, gout, hernia, erysipelas, P°i'<=y- or any other disease or secondary cause arising within the system, before, or at the time of, or following such accidental injury, whether causing such death or dis- ability directly or jointly with such accidental injury.'' , («) Same case. it) N. Am. Life, . 6 (3). ( 45i ) CHAPTER XXVI. GUARANTEE INSUEANCE. Certain companies have been established in this country for undertakiag the risks of suretyship for a pecuniary consideration. Their method of dealing is based on, and closely resembles, that of the ordinary insurance companies, and their bonds of suretyship are often termed policies. A contract of guarantee by the Statute of Frauds Writing must be in writing, it being a contract to answer for '^®i'"'^*®- the debt, default, or miscarriage of another person (a), and it being also a promise to be answerable for a debt of, or a default in some duty by that other person towards the promisee (6). Where a bank manager allows overdrafts without Not limited to security, and loss is occasioned thereby, this has in ^'^^^^' Lower Canada been held an irregularity within the meaning of a guarantee policy "against loss by the want of integrity, honesty, or fidelity, or by the negli- gence, defaults, or irregularities of the manager" (c). In the particular case the manager concealed the over- drafts by fictitious returns, and acted improperly in concert with the persons allowed to overdraw (d). The ordinary rule of insurance law that all material Concealment. (a) See per Blackburn, J., Steele v. M'Kinlay, 5 A. C. 758-770, 43 L. T. 358, 29 W. R. 17. (6) Eastwood v. Kenyan, ii Ad. & E. 438. Bargreaves v. Parsons, 13 M. & W. 570. (c) Bank of Toronto v. European Assurance Society, 14 Lr. Can. Jur. 186. {d) See also Byrne v. Muzio, 8 L. R. (Ir,) 396. 455 fHE LAWS OF INSDilANCE. circumstances known to the assured must be disclosed, does not apply in the case of guarantee policies (e). The concealment to avoid the contract of guarantee must be fraudulent, for such policies come within the law of suretyship, and not of insurance. Duty of assured. A contract to guarantee a man from loss by a certain employ^ does not entitle the employer to run up an embezzlement bill against the surety, and keep dishonest servants at another man's risk, when once he knows or reasonably suspects their dishonesty (/). Nor may he alter the terms of the employment, if the policy was granted on the faith of them (g), otherwise he may (A). Notice of default. Consequently it would seem, that on default and notice thereof, the insurer would at any rate have the option to terminate the guarantee, and a right in equity to be discharged if the employer keeps on the employe after discovery of his defaults, for one of the surety's rights on payment would be to insist on the discharge of the employe (i). The default, &c., of which notice must be given, is, it would seem, only such default, &c., as will found a claim on the guarantors (k). But this is a mere ques- tion of the construction of the particular instrument. Bight to dismissal of employed. The guarantor company can require dismissal for misconduct if the person guaranteed has the power to do so, which in guarantees of rate collectors and the like is not always possible, for a guarantee may be given to a collector-general, or the Guardians of the Poor, while the power to dismiss is vested in another person or (e)^iV. British Intwance v. Lloyd, lo Ex. Rep. 523, 24 L. 3, Ex. 14. (/) PhUUps V. Foxcdl, L. R. 7 Q. B. 666. Ig) L. N. W.B. V. Whinray, 10 Ex. 77, 23 L. J. Ex. 261. (h) Sanderson v. Aston, L. R. 8 Ex. 73. (i) Shepherd v. Beecher, 2 Peere Wm. 289. Phillips v. Foxall, per Blackburn, J., L. R. 7 Q. B. 666, 680. Burgess v, Em, 13 Bq. 450. {*) Byrne y. Muzio, 8 L. R. (Ir.) 396, 4081 GUABANTEE INSURAJIOE. 453 body like the Treasury or Local Government Board or Board of Trade (I). Non exercise of a power to sus- pend the employed vested in the holder of the policy will not avoid it (m). Guarantee policies contain provisions as follows : Contents of guarantee m • • policiea, 1. That the employer shall give notice of any de- fault or defalcation by the employed. 2. To forward any claim made in respect of the policy within a limited time. 3. A proviso that the company shall be entitled at the employer's expense to call for reasonable particulars and proofs of the correctness of the claim, and verifica- tion thereof by statutory declaration. 4. That only one claim may be made under a policy, and that only in respect of defaults, &c., committed within a month of the receipt of the notice (n). 5. That the policy is granted only on condition that the business of the employer, and the duties and salary of the employ^, shall remain exactly as stated in the particulars of proposal. 6. That unless notice of anything making the actual facts to diifer from the particular statements made shall be given to the insurers, and consent to the change be given by endorsement, the policy will be void. 7. That the employer shall, if required, aid (at the company's expense if a conviction be obtained) in prosecuting the employ^ to conviction, and at the company's expense give all information and assistance (I) Lawder v. Lcmder, It. Rep. 7 0. L. S7' ^yrne v. Muzio, 8 L. R. Ir, 396. (m) Syrne v. Muzio, p. 412. Wesfport Union v. O'Malhy, 8 L. R. Ir. 412, note. (n) Herein such policies differ widely from fire policies, where a dozen claims if they arise can be made. 4S4 THE LAWS OF INSUBANCE. What condi- tions are pre- cedent to payment. to enable tlie company to sue for and obtain the reim- bursement by the employed, or his estate, of any moneys which the company shall have become liable to pay. So far as any of these conditions are for something to be done preliminary to the completion of the proof satisfactory to the directors, from which completion of proof the time of payment is to run, they are pre- cedent. But those relating to matters to be done after payment are not and cannot be conditions precedent. The condition as to prosecution being a means of prov- ing the employer's claim or loss is precedent, or can be so made (o). But a condition that the employer shall give assist- ance to enable the company to obtain reimbursement from the employed, cannot be precedent to the obliga- tion of the company to pay, since the company cannot be entitled to reimbursement until it has either paid or became Uable to pay (p). In a guarantee insurance, as the obligation of the surety is continuing, the obligation of the creditor or employer is also continuing, and any representation and understanding as to the trustworthiness of the employed, on which the contract was originally founded, continues till its termination (§'). Guarantee to Guardians of Poor. Nor if the guarantee be given to the Guardians of the Poor will the guarantee company be exempt from liability on account of the negligence of the overseers in calling the collector to account (r). (o) Zondon Guarantee, . 519, 39 L. T. I, 26 W. R. 843. Sx^. Barry, L. R. 17 Eq. 113, 43 L. J. Bank 18. (e) 46, 47 Vict. c. 52, b. 44, sub-sec. 3. BANKRUPTCY. 45 < Under the older Bankrupt Laws, demands payable on Can claims a contingency could not be proved against the estate of Sranoe be the bankrupt, and this risk was held to apply to money 1^°''^^ '? , assured by a policy of insurance ; but a provision was inserted in the Bankruptcy Act, 1849, s. 174, enabling the assured in a policy of insurance to make a claim, and after the loss or contingency happened to prove and receive dividends, in like manner as if it had happened before the bankruptcy. Proof in a similar case would now have to be made under section 3 1 of the Bankruptcy Act, 1869, the corresponding section in the Bankruptcy Act, 1883, being s. 37. Proof for unpaid premiums must be made under s. Proof for t of the Bankruptcy Act, the Bankruptcy Act, 1883. 31 of the Bankruptcy Act, 1869, or under s. 37 ofpremfums. Where policies were settled, proof by the trustees. Proof by after payment of the moneys assured, was allowed *'^^^*^^'- against the settlor's estate, for the premiums which the trustees had paid out of a fund provided for that pur- pose in case of the settlor's default to pay them (/). A holder of a policy of insurance in an insurance Proof against company which was being wound up was held entitled ^"o'und^up.""' to prove for the sum which would be required to be paid to a similar solvent insurance company in order to give the policy-holder a policy for the same amount and under the same conditions (c/). A secured creditor may assess the value of his Eights of securities, and vote and prove in respect of the balance, assured^ havin, and is bound to pay over to the trustee the amount ^j^^g^^^^^j^^y °^ which the security shall produce beyond the amount case of of such assessed value, and the trustee may at any time ^ ^^ "^^ before realisation of the security by the creditor, redeem if) Be Miller, Exp. Wardley, 37 L. T. N, S. 38 6 Oh. D. 790, 25 W. B. 881. „ . „ „ (g) lie Albert Life Assurance Co., L. R. 9 Eq. 707, 460 THE LAWS OF INSURANCE. Mortgagee of policj receiving composition. the security upon payment of the assessed value. If the security prove to be more valuable than the amount at which it has been assessed, the trustee may either redeem it upon payment of such assessed value, or he may claim whatever surplus the security may produce over such assessed value. The proof of the creditor, however, cannot be in- creased in the event of the security realising a less sum than the value at which the creditor assessed it (A). It would seem therefore that if a creditor has taken as security a policy of assurance, his most prudent course will be to realise it, otherwise should it increase in value during the bankruptcy, the gain will be the trustee's, while if it becomes less valuable the loss will be his own. In exparte King (i), a creditor for £i2og held as security a policy on the hfe of the debtor for £1200. He tendered a proof for his debt, stating that he held the policy as security, which he assessed at ;^200, its then surrender value. The trustee admitted the proof for the balance of the debt, being satisfied with the value put upon the security. Shortly afterwards, and before the close of the liquida- tion, the debtor died, and it was held by Bacon, 0.-J.,that the trustee was entitled to the whole sum received on the policy beyond the ;£^200 at which its value had been Where a creditor is secured by a policy and values it and receives a composition for the rest of his debt in excess of his valuation, he has no claim on the policy beyond the amount of his valuation and interest thereon, together with the premiums he has paid on the policy Qc). In this case a debtor by a composition deed (h) Bankruptcy Act, 1869, 32, 33 Vict. 0. 71, s. 40, G. R. 99; 100, loi, 136, 272. (i) Exp. King, Ee Palethorpe, L. R. 20 Eq. 273, 44 L. J. Bank, 92. (k) Bolton V. Ferro, 14 Ch. D. 171, Bacon, V. C, 1880, 49 L. Oh. 569, 42 L. T. 529, 28 W. R. 578. The composition was under the old Bankruptcy Acty 1 86 1. BANKRUPTCY. 46 1 dated 4th November 1864, registered under the Bankruptcy Act, 1861, in consideration of a cove- nant on the part of himself and a surety to pay a composition of ten shillings in the pound, obtained a release from his scheduled debts by a statutory majority of his creditors. The deed contained a pro- viso that every secured creditor should have the full benefit and advantage of his security, and should be entitled to the composition after allowing for the value of such security. Amongst the secured creditors was one for £22g, 8s. Sd., whose security was a policy of assur- ance on the life of the debtor. The creditor valued the policy at _^i6, and for the difference — namely, ;^2i3, 8 s. 5d. — he received the composition of ten shillings in the pound. The policy having fallen in after some pre- miums had been paid by the creditor, it was held that upon the construction of the deed the creditor upon the execution of the deed remained a creditor for ^16 only, and that (the composition having been duly paid) the proceeds of the policy after payment of ^16 and interest belonged to the debtor's estate, subject to repayment with interest to the creditor of premiums which he had paid. Where a man after his bankruptcy pays the pre- to whom! miums on policies on his own life, effected and mort- ¥'f''J "°?®^" gaged by him before his bankruptcy, and his assignees in premiums paid bankruptcy disclaimed any interest, and refused to pay the premiums, on his death his legal personal repre- sentatives, and not the assignees, are entitled to any surplus after the mortgagees have been paid (I). In this case the bankrupt had obtained his discharge on covenanting to pay so much a year to liquidate his debts, which covenant he had performed. Though the case was argued on (24, 25 Vict. c. 134, s. 154) a repealed Act, the principle seems clear in- dependently of that Act. (1) Re Learmonth, 14 W, R, 628, 1866, J. 6 2 THE LAWS OF INSCRANCE. Jisciaimer by If the trustees in bankruptcy disclaim, they cannot mstee^ "^ Subsequently ex post fado claim again where they see a ?ayment of chance of profit (m). Where the mortgagor of a policy lankruptf ^ of insurance became bankrupt, but notwithstanding his ttortgagor. bankruptcy, continued to pay the premiums on the policy, it was held that the premiums so paid were in the nature of salvage moneys, and must be repaid to the legal personal representative of the mortgagor, he having died (n). Surety's If a man becomes surety to keep up a policy and lankrupt^of ^^^ principal becomes bankrupt, the surety cannot lolioy-holder. subsequently recover from the principal any premiums paid thereafter ; for although such liability of the surety was contingent, it might have been proved in the bankruptcy (o). Uoidance of ^^J Settlement of property made by a trader — not ettie^^'^nt being a settlement made before and in consideration of if policy. marriage, or made in favour of a purchaser or incum- brancer in good faith and for valuable consideration, or a settlement made on or for the wife or children of the settlor of property which has accrued to the settlor after marriage in right of his wife — shall, if the settlor becomes bankrupt within two years after the date of the settlement, be void as against the trustees in the bankruptcy ; and shall if the settlor becomes bankrupt at any subsequent time within ten years after the date of the settlement, be void as against such trustee unless the parties claiming under the settlement can prove that the settlor was at the time of making the settle- ment able to pay all his debts without the aid of the (m) Exp. IbbetBon, 8 Ch. D. 519, 39 L. T. i, 26 W. B. 843. (n) Shewma/n v. British Empire Mwtual, 14 Bq. 4, 20 W. K. 620, 26 L. T. 570, doubted in Leslie v. French, 23 Oh. D. 552. See Norris v. Caledonian, 8 Eq. 127, 20 L. T. N. S. 939, 17 W. R. 954, and Foster v. Roberts, 9 W. R. 605, 7 Jur. N. S. 400. (0) Saunders v. Best, 13 W. R. 160, 17 0. B. N. S. 731, Bankruptcy Act, 1869, B. 31, Bankruptcy Act, 1883, s. 37. BASKEUPTCY, 463 property comprised in such settlement (ji). The word " property" includes a policy of life assurance, tlie same being a chose in action (r/). The new Bankruptcy Act, 1883, contains a similar provision to the foregoing, but of a more extended operation, inasmuch as it applies to all settlements by whomsoever made and not merely to those of a trader (r). ip) Bankraptcy Act, 1869, ». 91. (2) Bankruptcy Act, 1869, «. 4. (r) 46, 47 Vict, c, 52, ». 47. ( 464 ) CHAPTER XXVIII. THELUSSON AND SUCCESSION DUTY ACTS. Direction to A DIRECTION OP discretion in a will or deed to pay not aocumula- °^* 0^ ^^^ testator's Or Settlor's property the premiums taon within on a policy of insurance made or to be made upon the life of another is valid for the whole life insured, and is not an accumulation within the meaning of the Thelusson Act, 39, 40 Geo. III., c. g8 (a). That Act only aims at dispositions for the accumula- tion of rents and profits as such, and not at dispositions having reference to bargains and contracts entered into for other purposes than the mere purpose of accumula- tion. The benefit, if any, arising to an estate from a policy on which premiums have been paid for over twenty- one years arises not from accumulation but from application and expenditure of income in obtaining a contract (&). To insist that the policy must be dropped at the twenty- first year would be to say that what is construed for that purpose as an accumulation shall operate as a vain casting away of money. For a policy is evidence of a contract enforceable by forfeiture of previous payments, and the premiums could not be got back at the end of the twenty years. (a) SassU v. Lister, 9 Hare 177. Balford v. Close, W. N. J May 1883, p. 89. Cathcart's Trustees v. Htneage'i Trustees, 10 C. S, C. (4th Beries) 1205. (6) Cathcart v, Heneage's Trustees, supra. But see Jarman on_Wills, vol. 14, ed. 316.^ BANKRUPTCY. 465 A testatrix empowered her trustees if they should see cause to make insurances on the life of a nephew in such a way as to enable them to receive a sum or sums at his death, to be then applied for the purpose of the trust. She died iai84i. In 1845 the trustees insured the Ufe of the nephew largely, and paid premiums out of the income of the estate till 1878, when he died. The next of kin claimed repayment of these premiums so far as paid after twenty-one years from testatrix's death as accumulations of income forbiden by Theltis- son Act, but the claim was refused (c). By the Succession Duty Act {d), sec. 1 7, " No policy Relation of of insurance on the life of any person shall create the and ^SsLr relation of predecessor and successor between the ^°^' ??' ^^^ ■^ on policy. insurers and the assured, or between the insurers and any assignee of the assured." Upon this section Sir George Jessel said (e), "No doubt there may be a gratuitous policy of insurance. But the words in sec. 1 7 mean a policy effected in the ordinary way in con- sideration of a premium or premiums. If so, that is a contract for money, a purchase of a reversionary sum in consideration of a present payment of money, or, as is generally the case, on the payment of an annuity during the life of the person insuring. It is clearly a contract which could not be fairly described as I read it as a disposition of property at all, because a mere covenant to pay money is not a disposition of property in the ordinary sense. The insurance company does not die, and therefore a covenant to pay money on the death of some other person is a mere covenant to pay money. It is no disposition of the property of the insurance company or of any one else." The reason for the exception suggested by Sir George (c) Cat/icart's Trustees v. ffeneage's Trustees, 10 C. S. C. 1205. {d) 16, 17 Vict a 5r, s. 17. («) Fryer v. Morland, 3 C!h. D. 685. 2 {> 466 THE LAWS OF INSUEANCE. Jessel is that it was meant to quiet the fears of persons interested in insurance companies ex cauteld (/). The clause extends to all policies, whether for the lives of the assured or not, including policies taken out by purchasers in reversion, but not policies so far as they were dealt with as property (cf). No duty on j^q succession duty is due on policies of insurance assigned ... ijolicy. assigned inter vivos, even where the assignment is made to a son as a means of liquidating a large amount of debt undertaken by him for his father (h). (/) ^ryer v. Morland, 3 Ch. D. 675, 685. (g) 128 Hansard, 401, 1398. (A) Lord Adv. v. Earl of Fife, 21 Sc. Law Eep. 151. Fryer v. Mor- land, 3 Oh. D. 675. INDEX. ABANDONMENT— When doctrine applied, 4-5, 214-216. ACCIDENT— Policy against, nature of, 19, 432-433. Policy against, within statute as to interest, 70, 434. Policy against, whether contract of indemnity, 431. Whether amount of insurance deducted from damages, 431-432. Age for insuring against, 434-436. Friendly Society, insuring against, 434. Definition of railway, 435. Whilst breaking journey, 436. Insurance against, by railway ticket, 436-437. By railway, amount of compensation, 437. Contributory negligence, effect of, on claim for, 437. Insurance against, need not be continued, 437. Definition of, 439-440. Sunstroke, whether it is, 440. Rupture by jumping from train, whether it is, 440. Putting arm out of window, injury from, 44 r. Pall when catching train, 441. Drowning, whether an, 441. Presumption against suicide and in favour of, 442. Sprain from lifting weight, whether it is, 442. Kupture from using clubs, whether it is, 442. Inflammation from ruptured blood-vessel, 443. Peritonitis from blow, 443. Erysipelas from wound, 443-444. Doctor's hands, death under, 443. Overdose, death from, whether, 443. Usual exception from policy against, 443. Death must be solely caused by, to be within policy, 443. Falling from joist, whether an, 444. Whilst mounting carriage in motion, 44s. " Wholly disabled " by, meaning of, 446. Notice to office of, 446. Allowance for disablement by, 447. Construction of policy against, 447. Proof of what requisite, 447-448. ACTUS DEI— Excepted from risk taken, 17;', ADMINISTRATOil— Has insurable interest, 65. Not bound to insure, 66, 468 INDEX. AGE— Proof of, 13S-198. Misstatement of, 198, AGENT— Eetainer of premiums by, not failure of company to repay, 25. Authority of, must be followed, 71. Receipts of, company bound by, 76-77. Debiting premium to, effect of, 77-93. Ratification by receipts of premium from, 88. Delay in paying premium through change of, 89. Days of grace, receipt of premium after, by, 92. To pay premium, promise by, 93. Concealment by, 149. Misrepresentation by, 149. The life insured may of the insured be, 149. Notice to, of change of business, 163. General, authority of, 410-411, Policy not to be granted by, 410, 418. Representations of, whether binding, 410. Del credere insuring, 410. Extending time for paying premiums, 411. Commission to, agreement by directors for payment after agency ceased, 411. Authority of, varied by private instructions, 413. Without instructions, 413. Notice to, what sufficient, 413, 419. Mistaken instructions to, company bound by, 413. Authority of sub, 414, 422-423. Insuring in wrong company, 414. Credit to, of premium, 414. Credit by, of premium, 415, 416-418. Payment of premium cannot be dispensed by, 413. Payment of premium by cheque to, 415. Insuring himself, 415, 416. Privileged communications between company and, 416. For two companies reinsuring one in other, 416. Cross account of, with agent of other company, 417. Not acting within authority, yet company bound, 417. False representation by, where assured told truth to, 417. Specific performance of contract of, 418, Local, powers of, 418. Company not bound to grant policy where premium paid to, 418. Applications received but not accepted by, 418-419. Forfeiture, waiver of, by, 419-420. To dispense with conditions, power of, 420. FilUng up proposal, effect of, 420-421. War, effect of on acts of foreign, 421. Endorsement of policy by, 422, Fraud of, effect of, on company, 423. Contracting outside company's business, 424. Contracting outside his authority, 424. Insuring for another does not warrant interest, 426. Insuring for another without authority, 426. To effect policy cannot adjust loss, 427. Negligently insuring, liable to assured, 428-429. Commission not receivable from insurer and insured by, 429. INDEX. 469 AGmiT— [continued. ) Discount does not belong to, 429. Assured affected by fraud of, 429. Principal bound by knowledge of, 429, When " the life " is of insured the, 430. Whether medical man is of insured the, 430. ALTERATIONS— Of premises, whether covered by policy, 106. AMALGAMATION— What it is, 390. Ultra vires, 391, 397. Power to contract for not implied, 391. Ratification of, when ultra vires, 392. Power of, how given, 392. Policy-holder's claim after, 393. Costs of liquidating companies after, 393. Policy-holders, when bound by, 393-397. Effect of, on creditors, 394-395. Effect of, covenant to indemnify on, 395. Effect of, on shareholders, 39S-397- Of life offices, leave of court requisite, 396. Effect of, successive, 400. AMBIGUITY— In policy may be cleared by custom, 31-32. ANNUITANTS— Are creditors of company, 386. Whether receipt by, amounts to novation, 400. ANNUITY— Policy effected by grantee of, 327. Policy effected by mortgagee of, 327. Insurance of arrears of, 328. APPOINTMENT- Of policy to executors of settlor, 322. APPORTIONMENT— Of premiums, not if risk attached, 98. Of insurance money, where insurance by mortgagor and mortgagee in different offices, 281. APPURTENANCES— Recovered for, as part of freehold, 51. ARBITRATION— Ouster of jurisdiction of courts by, 201, 204-205. Common Law Procedure Act, 1854, as to, 204. Ascertaining amount before action by, 205. When all liability disputed, 205. Condition to refer to, 206. When fraud charged, 206-207. Onus on party objecting to, 208. Question of law, whether referable to, 209. Waiver of right to, 209. Specific performance of agreement to refer to, 209. Whether assured's refusal to submit to, is au answer to his claim, 240, 470 INDEX. ARSON— Whether within fire risk, 113-116. Danger of, to be disclosed, 113-115. By assignor of policy, 115. By mortgagor, effect of on mortgagee's policy, 115. By wife or relation, 116, Proof of, Ii6, 194. Defence of, 193. ASSIGNEE— Takes assignor's title, 304. Affected by fraud of assignor, 305. Insurer's knowledge of fraud upon, 305. Whether company trustee for, 382. ASSIGNMENT— Effect on, of arson by assignor, 115. Effect on, of suicide by assignor, 129-130, Of claim after loss, 176. After breach of condition, 176. Of property, whether assignor can recover on policy after, 285-288. Of fire policy, whether legal, 2S6-288. Of fire policy, whether insurer's consent necessary, 286, 288, 289, 292. Of fire policy must accompany property, 288. Of life policy, effect of, 296, 300-301. Of life policy, how made, 298, 300-302, 312-313. Of life policy, notice of, 298, 300-301. Of life policy, right to sue under, 298. Of life policy, form of, under policy of Assurance. Act, 300. Of life policy, effect of, under policy of Assurance Act, 300. Of life policy, effect of Judicature Act, 301. Of life policy, what does not amount to, 302-303. Agreement for, without delivery of policy, 302. Before winding up, relieves assignor, 306. Validity of, not affected by length of time between notice of, to com- pany and death of assured, 306. Of policy enforceable by specific performance, 307. Of policy carries bonus, 307. Of policy proper covenants in, 308. Whether authority to hold policy amounts to, 312. Of policy otherwise void good as charge, 312. By bankrupt secretly, 312. By felon, 313. Inchoate settlement amounting to, 313. Of policy for benefit of wife, whether her consent necessary, 316. By married women of trust policy, 324. ASSUKED- Cannot make profit, 2-3, 4-5. Cannot release third parties to insurer's prejudice, 5. His negligence within policy, 6. Not obliged to run the risk, 7. Must fully disclose risk, 9. Duty of, in case of fire, lo-ir. Cost of performing such duty, 11-12. Where policy obtained by fraud of, course open to insurer, 33. May rescind contract induced by insurer's fraud, 32-33. Infant may be, 35. INDEX. 47 1 ASSURED— (continued. ) Married woman may be, 35. Cannot evade law by insuring nominally for himself, 39. Has insurable interest in own life, 39. Interest of, in subject of insurance must be lawful, 44. Need not have legal interest, 47-48. Any one with interest may be, 49. Death of, within days of grace, loi. Going beyond limits, 103. Negligence of, loss from, 113. Wilful act of, loss from, 113. Duty of, to save property, 119, 121-122. Death of, caused by person entitled to policy-money, 127. Material facts must be disclosed by, 146-147, 153, 156-157. Statements of "the life" as agent of, 149. "What need not be disclosed by, 156-157. Defence to action by, when insurance paid, 217-219. Assignment by insurers of subrogated rights, defence to action by, 219. Not to prejudice insurer's rights, 221-222. Beinsurance discharged by payment to, 248. Has no lien on reinsuring policy, 248. Character of, to be disclosed on reinsurance, 253. Interest of, not defeated by mortgage, 291. Going abroad, whether policy avoided, 308. Affected by agent's fraud, 429, Notice to broker of, not notice to insurer, 429. Correct description of, 439. AVERAGE— Condition as to, 234. Two-thirds clause, 236. Clause in fire policy as to, 235-237. When goods in lighters, 238. BAKER— "Stock-in-trade of," what covered by policy on, 32. BAILEES- As to insuring for full value, 52, 55-57. Goods held in trust by, 56, 172. Insurance by, and by bailor, 229. Insuring own and bailor's goods without authority, 427. BAILOR— Insurance by, and by bailee, 229. BANKRUPT— Insurable interest of creditors in estate of, 67. Whether insured can sue when a, 174. Policy of passes to trustee, 30B, 458. Procuring renewal of policy to creditor, 308. Secret assignment of policy by, 312. Premiums paid by mortgagor when a, 326. Whether policy passes to trustee of, 458. Proof for amount of policy where company is, 459. To whom policy moneys belong when premiums paid by, 461, Disclaimer by trustee of, 462. Surety for payment of premiums due from, 462. Voluntary settlement of policy by, 462-463. 472 INDEX. BILL OF SALE- Whether holder of, entitled to proceeds of policy, 276. BILLS OF LADING - Witli directions to insure, 54, BONUS— Whether it passes by contract to assign policy, 307. "Whether trusts of policy include, 316. Deduction of, from calls, 365. Whether income or capital, 385. NoTatiou by acceptance of, 399. BROKER— As to insuring full value, 52-54. Lien of, on policy, 343. building- Is insured qu9, building, 24a "BURNT OR NOT BURNT"- Insurance as, 28, 46. CARRIER- Insuring for full value, 52, 55-56. Insuring goods held in trust by, 56, Risk of, when it begins and ends, 97. Negligence of, causing loss, 113. Insurer has subrogation against, 220. CERTIFICATE— Of loss, by magistrate, &c., 183-184. CLAIM— Condition as to fraud in, 190. False statement in, 191, Excessive, whether fraudulent, 192-193. Mistake in, 193. Application of funds set apart to answer immediate, 386. How valued on winding up of company, 388, COFFEE-HOUSE- Whether hazardous trade, 107. COMMISSION— Whether insurable, 41. Not payable to agent by insurer and insured, 429, COMMISSION AGENT— Insurance for full value by, 57-58. COMPANIES FOR INSURANCE— Varieties of, 347-348. How formed, 349-351. Registration of, 352-354, 362- Deeds of settlement can be inspected, 354. What are under Companies Acts, 354, 368. Reason for incorporating, 355. Contracting ultra vires, 357-360, 362. Using seal informally, 356. Business of, must conform to constitution of, 357. Form of contracts of, 358. INDEX. 473 COMPANIES FOR INSURANCE— (conJinwcd.) Appointment of solicitor by, 359. Debentures in fraud of, 360. Powers of investment of, 361. Holding of land by, 366-367. Deposit of ;^2o,ooo by, 368. Keeping accounts of, 370. Life assurance funds of, to be separate, 370. Balance-sheet of, to be lodged with Board of Trade, 371. Actuarial investigation of affairs of, 371-372. Contribution to fire brigade, 373. Whether policy-holder creditor of, 374, 381. Whether policy-holder can interfere in management of, 374-381. Whether policy-holder a contributory of, 375-376. Funds of, how liable for loss, 376-377. Surplus profits of, what are, 377. How liability of limited, 379-380. Funds of, include unpaid calls, 380. Whether trustee for assignee of policy, 382. Whether shareholder can be sued, 383. Annuitants are creditors of, 386. Claims against, how valued on winding up of, 388. Whether amalgamation of, without consent of court, 396. Resuscitation of, for winding up, 397. Proceedings against, where Scotch or Irish, 407. Judgment against, in one part of United Kingdom enforceable in other parts, 408. General agent of, authority of, 410. Mistaken instructions to agent of, 413. Bound where intention to insure in other company, 414. Agent's fraud, effect of, on, 423. Must grant policy if premium retained, 423. Can't adopt agent's contract outside business of, 424. Can't adopt policies of other companies, 424. Contract of agent beyond authority ratified by, 424. Can ratify after loss, 425. CONCEALMENT— Return of premiums where, 86-87. By agent, 149. Of claim on other office, 151. Of illness, 151, 305. Of fire to adjacent property, 152. Purchaser of policy, how affected by, 153- Discovery before paymeut by Insurer of, 154. Of other insurance, 166. Of refusal by other company, 200. Of maternity, 138. Of imprisonment, 138. Of material fact, r46. By not answering question, 147. What it is, 148. By insurer, 148. CONDITION— Broken policy voidable, 158. New agreement after breach of, 159. Payment in ignorance of breach of, 159. 474 INDEX. CONDITION— {continued. ) Usual in fire policy, 159-160. As to user of property, 161-163. As to remoTal of property, 161. Suspensory during forbidden user, 161. Evidence to explain, 162. As to hazardous business, 162. ,, change of business, 162. ,, disclosing other insurances, 166-170. )i >> II ,, waiver of, 169. ,, double insui'ance, 169. ,, I) I, in foreign company, 169. » >t 11 by interim receipt, 169. >> .1 I) second insurance on part of property, 170. I) M ), binds assignee in bankruptcy, 170. ), )i I, policy not issued, 171. ,, change of title, 173. ,, execution against property insured, 174. „ shifting policy to other property, 175. ■Waiver of breach of, 177, 185, 197. Mortgagee recovering for mortgagor who broke, 177. Limiting time to sue, r77-i78. As to notice of loss, 179-182. Precedent to insurer's liability, 179. As to verification of loss, 183-185. ,, ,> ,1 waiver of, 185, „ fraud in claim, 190. „ procurement of fire, 190. „ entry of premises by insurer, 194. ,, reinstatement, 195. , , forfeiture of premiums, 196. Usual, of life insurance, 197. License to break, 197. As to omissions, 198. ,, misrepresentations, 198. „ military service, 199. ,, arbitration, 206. ,, subrogation, 225. ,, contribution, 230-233. ,, average, 234-236. „ two-thirds clause, 235. That reinsured should retain certain amount of insurance, 252. Limiting time for recovery, 254. As to furnishing proofs, how complied with, 254. Inspector's power to dispense with, 420. CONSIGNEE— Insuring for full value, 52-57. Merchants compelling insurance by, 53-54. Bills of lading received, with directions to insure by, 54. Contribution where insurance by consignor and, 233. OONSIGNOE— Contribution where insurance by consignee and, 233. CONSTRUCTION OF POLICY— General rule, 28, 29. Written words prevail over printed, 29. INDEX. 475 CONSTRUCTION OF FOhlCY— [continued.) Kigid, not favoured, 29-30. Against insurer, 30. Words of policy supersede custom, 31-32. Custom may control ambiguity, 31-32. lu popular sense, 31. CONTRIBUTION— When it occurs, 6, 80, 227-228. Subrogation, difference between it and, 228, 232. Between insurers of several mortgagees, 229-230. Condition as to, 230-233. Where insurance by consignor and consignee, 233. Evidence as to policy being one for, 233. Specific insurance and, 235. Effect of clause as to, in reinsurance policy, 252. Between insurers where separate policies by mortgagor and mortgagee, 280-283. Between sureties where one has paid debt and obtained policy, 332. Right of, gives no lien on policy-money, 341. CONTRIBUTORY— Executor as, 363-364. Whether secretary holding shares as trustee for company is, 364. Whether vendor still on register is, 364. Whether bonus deducted from calls on, 365. Not exempted by forfeiture of shares, 365. Liable if transfer of sftiares incomplete, 365. Whether promoter is, when shares fully paid, 365. covenant- To keep up policy whether broken by suicide, 132, 308. By tenant to repair and insure for fixed sum, 260. „ ,, excluding fire, 260-261. ,, to insure, runs with land, 261, is usual covenant, 262, form of, 262. uncertainty in, 262-263. damages for breach of, 263, relief for breach of, 264-265. antedating receipt does not cure breach of, 264. in landlord's name, effect of, 266. To insure, whether policy vested in covenantee by, 303. Proper in assignment of policy, 308. To keep policy on foot whether broken by going abroad, 308. To effect and settle policy action for breach of, 309. To effect and settle policy by husband, whether breach of it excuses breach by wife's father of his covenant, 314. To insure mortgagee's power of sale on breach of, 334. To keep policy on foot, power of sale on breach of, 334. To keep policy on foot, damages for breach of, 33S-336. To repay premiums, damages for breach of, 336. Not to go abroad, damages for breach of, 337. To pay policy out of special funds, 382-384. To indemnify on amalgamation, 393. CREDITOR- Policy of, whether indemnity, 13, 15, 16-17. By judgment, interest of, 67. 47^ INDEX. CnSDVIOTS^icontinued. ) Interest in bankrupt's estate, 67, Debtor's interest in life of, 67. Interest of, in debtor's life, 67-68. Interest of, in surety's life, 67. For gaming debt has no insurable interest, 68. For debt incurred during minority, 68. Paid since policy can recover, 68. Can recover though debt becomes statute barred, 68. Fully secured insurable interest of, 68. ; Insuring life of debtor's wife who assigns, 68. Must pursue authority given by debtor, 71. Insurance by, on debtor's life, whose it is, 326-329. Assignment of policy to, on trust to pay own debt and pay over surplus, 330-331. Cannot compel debtor to insure, 333. Whether policy-holder is, 374, 381. Whether annuitant is, 386. Not aflfected by limited liability to policy-holder, 387. CUSTOM— Words of policy prevail over, 31-32. May control ambiguity, 31-32. CUSTOMS, ANNUITY, AND BENEVOLENT FUND— Insurance under, 309-310. DAMAGES— In action for negligence not reduced by insurance, 19. Secus, if death occurs through the negligence, 20. Indirect, not recoverable, 213. For breach of covenant to insure, 263, „ ,, keep policy on foot, 335-336. „ ,, repay premiums, 336, „ ,, not to go out of Europe, 337. Whether insurance money deducted from, 432. DAYS OF GRACE— What are, 90-92. Premium unpaid and loss during, 91. Insurer cannot terminate contract during, 91-92. Whether insurer bound to receive premium during, 91-92, Payment of premium after death, but during, 92. ,, „ after, 92. ,, ,, within, and death within, loi. DEATH— Company liable though policy not issued before, 98. If not within period of insurance company not liable, 100. By suicide, whether within policy, 126-129. By law, whether within policy, 126. By unlawful operation, whether within policy, 126. By drowning, whether within policy, 126. By duelling, whether within policy, 127. Caused by person effecting insurance, 127.^ Onus of proof where suicide cause of, 129, 442. By own hands, 129, 132. Deduction of insurance from damages where negligence cause of, 432. From fall when catching train, whether accident, 441. INDEX. 477 DEATH- {continued. ) In water, drowning presumed, 441. By train running over when seized with fit, 442. From ruptured blood-vessel by using clubs, 442. From inflammation after rupturing blood-vessel, 443. Within accident-policy when solely from accident, 443. From erysipelas caused by wound, 443-444. From operation for hernia, 444. From overdose, 443-444. From fall from joist, 444. From fall from engine, 445. From fall from mounting carriage, 445. Amount of compensation in case of, 436, 447. DEBENTURE— Intra vires, but in fraud of company, 360. DEBT— Gaming, gives no interest, 68. Incurred during minority may give interest, 68, Paid since policy does not avoid insurance, 68. Statute barred before dropping of life, 68. "When fully secured gives interest, 68. Creating lien gives interest, 69. DEBTOR— Interest in creditor's life of, 67-68. Interest of creditor in life of, 67. Wife of, securing debt, creditor may insure her life, 68. Interest of one joint debtor in life of another, 69. Insurance by creditor on life of, 326, 329. Whether charging with premiums makes policy belong to, 329-330. Not compellable to insure for creditor's benefit, 333. DEPOSIT— Of policy as security, 302-303, 342-344. Of policy by person out of jurisdiction with one within jurisdiction, 344- Of ;^20,ooo by life companies, 368, 405. DESCEIPTION— Of property must be accurate, loi, 148. Partially true, 152. Substantially true, 153, 155. DEVIATION— From route, effect of, on insurance, 97. DIKBCTOES— Ultra vires acts of, not binding, 355. Discretionary powers of, 356. Informal use of seal by, 356. Policy issued by ostensible, 356. Power of, to pay loss not within policy, 361. Must contribute for qualifying shares, 363. Powers of, presumed to be known, 409. Payment of commission by, after agency determined, 411. Appointed to select agents at commission, 412. 478 INDEX. DIUECTOES— (continued.) Vacate office when participating in profits, 412. Fraudulent contract of, void against assignee for value, 412. Notice to, 419. DISCOUNT— Belongs to principal, not to agent, 429. DISEASE— Must be disclosed, 135-136. Predisposition to, 133. Bequiring confinement, 133,, " Local," what it is, 133. Fits, meaning of, 136, 144. Gout, meaning of, 136. Spitting blood, meaning of, 136. Drinking habits, meaning of, 137. Furnishing particulars of, 145. Insured, unconscious of, 131. DONATIO MORTIS CAUSl— Life policy, subject of, 295-296, DEIVING— Not exposure to unnecessary risk, 444. DROWNING— Whether death by, within life policy, 126. ,, „ „ accident policy, 441, Where death in water, presumption of, 441. DRYING— Eiln used for, 107. DUELLING— Death by, 127. DWELLING- Gaol described as, 152. Room described as, 133. ELECTRICITY— Whether fire risk, 112. EMPLOYEES— Liability of, to workmen insurable, 448. ENTRY— Of premises by insurer, 194. EQUITABLE CHARGE— On policy, how created, 342. ERYSIPELAS- From wound, whether within accident policy, 443-444. EXCEPTION— Words of, to be taken against insurer, 172. EXECUTION— Effect of, on right to policy, 174-175. Whether policy can be taken in, 346. INDEX. 479 EXECUTOR— Insurable interest of, 65. De son tort, interest of, 66. Not bound to insure, 66. Should keep up policy, 337. As contributory, 363-364. EXPLOSION— Whether fire risk, in. EXTINGUISHING FIRE— Damage from, 117. factor- As to insuring full value, 52. As to his interest, 52-58. FALL— When catching train, whether accident, 441. On railway in fit, 442. From joist of floor, 444. By engine-driver applying break, 445. Whilst mounting moving carriage, 445. Whilst passing from car to car, 446. FELON— Assignment of policy by, 312. FIRE- Assured's duty to avert, 10. Duty of assured in case of, lo-ii. Cost of performing such duty, how borne, 11-12, Insurer liable for loss caused by, not exceeding amount of policy, 16. Whether insurance on ship marine risk, 12. Before date of policy, 27. Does not include explosion, 31. Policy not issued before, company yet liable, 98. To adjacent property, disclosure of, 102. Date for ascertainment of property protected from, 104, Property in transits not protected, 104. What the word includes, 109-110. Heat without, 109-112. Without ignition, 109. Cause of, immaterial, no. By friction, no. By chemical action, no. By vegetable fermentation, no. By lightning, 112. To adjacent property, disclosure of danger of, 1 14. By incendiary, 113-116. By master of ship, 116. Extinguishment of, damage from, 117, Removal of goods to escape, 118-120. Theft during, 120-121. Saving property from, cost of, 119-122. Usual conditions in policy against, 159-160, Connivance at condition as to, 190-191. Through accident, tenant's liability for, 258. 480 INDEX. FIRE — {continued. ) Through negligence, tenant's liability for, 258. „ „ tenant may insure against, 259. „ ,, covered by ordinary policy, 259. Whether rent payable in case of, 262. ,, policy against, runs with land, 289-290. ,> ,, „ passes on sale of property, 291, , , loss from, falls on purchaser, 289-290. ,, policy passes with beneficial interest, 292. Notice of assignment of policy against, 299. FIRE BRIGADE— Companies' contribution to, 373. FITS- What meant by, 136-144. Death in water, whether caused by drowning or, 441. Falling on railway in, 442. FIXTURES— Reinstatement of, 272. FOREIGN INSURANCE COMPANY— Need not be registered, 401. Trading here, liability of members of, 401. Trading here under conventions, 402. Law applicable to, 402-406. Provision of policies of, in different jurisdictions, 404-405. As to deposit of ;^2o,ooo by, 405. How to proceed against, 406-40S, Agents of, when contract foreign, 406. Judgments against, in one part of the United Kingdom enforceable in other parts, 408. General agent's authority, 411. FORFEITURE— Of policy not favoured, 73. Payment of overdue premium after death will not prevent, 77. By delay in paying premium, 89. Of policy waived, 158. Of premium, condition as to, 196, Not cured by antedating receipt, 264. When not enforceable, 264-265. Waiver of, by accepting rent, 265. Relief against, 265. Mortgagee of leaseholds may oppose, 284. Of shares does not exempt from contributing, 365. Credit of premiums by agent after, 416. Waiver by agent of, 419-420. FRAUD- Of assured cancellation of policy for, 31. In obtaining policy, refusal of insurer to pay, 31, Waived by accepting premiums, 31. Course of insurer where policy obtained by, 31, 33. Of insurer contrary to contract, effect of, 31-32. Cancelling policy for, 31-32, 154. Return of premiums in case of, 85-87. Delivery up of policy for, 154. INDEX. 481 FRAUD— (conMn ued. ) Compromise in ignorance of, 159. In claim, condition as to, 190. Excessive claim not conclusive of, 192. Arbitration where charges of, 206, 207. Of assignor, and recovery by insurer of money paid to assignee, 305. Duty of insurer aware that assignee deceived by, 305. Of agent, assured affected by, 429. FREIGHT— Whether insurable, 41, FRIENDLY SOCIETY— Insurance by, 127, 128, 310, 311. FURNITURE— Daring removal not within fire risk, 104. GAS— Whether fire risk, in. GAMBLING ACT— Makes insurable interest necessary, 36. Only value of interest recoverable, 37. Not in force in Canada, 37. In force in Ireland, 37. Not to be evaded, 39. GAMBLING INTERESTS— Not insurable, 44, 45. GIFT— Of policy, 313. GOODS— Sold but not delivered, insurance of, 46, 60-61, "Held in trust," insurance by carrier, 56, Held in trust or on commission, insurance by forwarding agent, 56. " Held in trust or on commission," insurance by wharfinger, 57. " Held in trust or on commission," meaning of, 58, 59, 60. With vendor at buyer's risk, 60, 61. Not separated from bulk, 61. Test of interest on sale of, 64, Specific description, whether necessary, 105. What within policy, 105. Loading, whether within risk, 104. GOUT— Answer to question as to having had, 136, 143. GUARANTEE INSURANCE— Whether writing necessary for, 451. Not limited to fraud, 451, 454. What to be disclosed on effecting, 451, 452. Nature of, 451, 452. Rights of surety in case of, 452. Contents of policy of, 453. Whether continuing, 454, 456. By guardians of poor, 454. Change of mode of business, effect of, on, 455. Amalgamation, effect of, on, 455. 2 H 482 INDEX. GUARANTEE INSUEANOE— (co»«in«ed.) Renewal of contract of, 455, 4S6- Partner's retirement, effect of, on, 456. Subrogation applies to, 456. Liquidators may avail themselves of, 456. Receivers may avail themselves of, 456. GUNPOWDEE- Not covered by policy on hardware, 32. Whether fire risk, m. HAEDWARE— Gunpowder not covered by policy on, 3a. HAZARDOUS TRADE— Whether coffee-house is, 107, Whether inn is, 107. Extra risk from, 162, 163. Whether liquor-selling is, 163. Whether use of kiln is, 163. As an experiment, 164. Whether use of oven is, 165. Whether use of engine is, 165. HEALTH— Non-disclosure of change of, before issue of policy, 304-305. Meaning of " being in good," 420. HOT WATER— Whether policy covers damage by, 112. HUSBAND— May insure for wife and children, 36. May insure wife's separate estate, 5X. ttLEGAL INSURANCE— Void, 32-44. Insurance on unlicensed premises may be, 32. Gambling interests are, 44-45. Insurance of seamen's wages is, 44. Separation of legal from illegal interests in same policy, 44. Notice to abandon, 84. Whether premium returnable, 83-84, INDEMNITY— Fundamental principle of insurance, 1-2, 212. Not always complete, 2. Not applicable to life insurance, 2. Consequences of principle, 4-5, 227. Whether creditor's policy is, 15^17. Insurance on property is, 212-214. What is, 213. Rule "new for old" is, 213-214, 245. Whether valued policy is, 217. Subrogation part of law of, 218, 221. Money received by insured in excess of, is insurer's, 222. Explained on insurance by mortgagee, 223-225, Insured not to receive more than, 227, Whether accidental insurance, contract of, 431-433. INDEX. 483 INFANT— May insure, 33. INFLAMMATION— From ruptured blood-vessel, whether within policy, 443. INJUNCTION— Misapplication of funds restrained by, 361, 378. INN— Whether hazardous trade, 107. INSURABLE INTEREST— Always necessary, 13, 14, 36, Assured cannot recover beyond, 13. Must exist at time of insurance and loss, 13, 15. Any one with, may insure, 35, 49, 50. Wife presumed to have, in husband's life, 35. Husband not presumed to have, in wife's life, 35. , Except in Scotland, 35. Only value of, recoverable, 37, 50, Definition of, 37-39. Precise nature of, need not be stated, 37. Consignee has, 37. Prize agent has, 37. Insurer has to reinsure, 38. Any person has in his own life, 39. Whether relationship gives, 40. Parent in child's life, 40. Son in father's life, 40. Moral certainty of having property does not give, 40. Bankrupt has, 42. Execution debtor has, 42. When must exist, 42. Theatrical manager in actor's life, 42. Heir of person non compos, 42. Borrower from insurer, 42. Employed in employer, 43. Railway company, in houses exposed to sparks from engine, 43. Employer in employed, 43. Must be an enforceable one, 43. Value of, at date of policy recoverable, 43. Must be lawful, 44. Kinds of, need not be specified, 45. Qualified interest may amount to, 45. Right of property, not necessary to constitute, 47. Tortious disseisor may have, 46. In goods sold but not delivered, 46. In house built on wrong land, 46. In substituted goods, 46. Risk alone may constitute, 47, 49. Legal interest not necessary to constitute, 47-48, 62. Equitable interest gives, 48-49, 62. Does not depend upon quantum of, 49. Landlord has, 50. Tenant has, 5°. Bailees have, 52, SS-S^- None until risk attached, 54. 4^4 INDEX. INSURABLE INTEKEST-icontinued.) None after stoppage in transits, 55, In goods sold but not delivered, 46, 6o-6i, :,, ,, held in trust, 56-61. „ held on commission, 58. held by vendor at buyer's risk, 6q-6i. „ not separated from bulk, 61. Manufacturer has, 62, Of purchaser, 60, 61-63, Of unpaid vendor, 63. Of paid vendor who has not conveyed, 63. When vendor's interest ceases, 64. "Where sale in fraud of creditors, 64. Covenant to insure gives, 64, In gaming debt, 68. . In debt incurred during minority, 68. In debt fully secured, 68. Of one joint debtor in life of another, 69. Although voidable policy good, 70. Bequisite in accidental insurance, 70. Absence of, only defence to insurer, 71. Of executor, 65. Of executor de son tort, 66. Of mortgagor, 66. Bequisite for reinsurance, 247, INSUBANCB— Differs from wager, 7, ,, „ suretyship, 8. Bequires uberrima fides, 8. Must not exceed value of interest, 13. Against accident, nature of, 19. No defence to action for negligence, 19. Whether contract of, to be in writing, 20-21. Where illegal is void, 32, 44. On unlicensed premises void, 32. Subject-matters of, must be correctly described, 45. By trustee presumed to be qud trustee, 65. Against accident within statute as to interest, 70. Name of person for whom effected must appear, 70. By partner in firm's name, 70. Voidable where premium in arrear, 89. Payment of, by mistake, 94. Ultra vires, premium returnable, 95. When it expires, 96. Termination of, by insurer, 99. Local limits of life, 103. For under value whole amount payable, 125, Without any representation, 147. Declined by other office, 150. In other offices, disclosure of, 166, 168. Subsequent disclosure of, 167, 170. In two companies, disclosure of, 168. Second by mortgagor, whether double insurance, 169, In foreign company, whether double insurance, 169, By interim receipt, whether double insurance, 169. Second on part of premises, whether double insurance, 170. INDEX. 485 INSURAJNCE— (conimued. ) Trustee in bankruptcy bound by condition as to other, 170. Against fire, what covered by, 171. In Friendly Society, 127, 209-210, 310-311, Specific, what it is, 235. Eeinsurance drops with, 252. Whether covenant to effect vests policy in covenantee, 303. Under Customs Annuity Benevolent Fund Acts, 309. Through Post Office, 311. By creditor on debtor's life, 326-327, By mortgagee of annuity, 327. Court cannot compel debtor to effect, 333. INSURANCE COMPANY— Tide " Companies for Insurance." INSTJEER— Not liable beyond actual loss, 3, 4. Entitled to rights of assured, 5. Several insurers contribute, 6. Effect of knowledge that risk cannot be run, 9. Cost of protecting property, how borne by, n. Not liable on policy contrary to its terms for own fraud, 31. Course open to, where policy obtained by fraud of assured, 31. Can plead want of insurable interest notwithstanding failure to cancel policy for fraud, 32. Payment into court by, 65. Absence of interest defence to, 71. General inquiries by, 133-134. Material facts must be disclosed to, 146-147. Knowing as much as insured, 147. Misrepresentation by, 148. Payment by after knowledge of misrepresentation, 154. Whether private knowledge of, alters assurer's duty, 154. Disclosure by, to Insured, 156-157. Limit of time to sue, 177. Notice to, of loss, 179. Conditions precedent to liability of, 179. Keinstating, entitled to old materials, 216. Cannot require party primarily liable to be sued, 217, 222. Payment by, no defence to action by assured, 219. Assignment by, of subrogated rights defence to assurer's action, 219. Eight of, to salvage, 220. Suing tort feasor subject to same defence as assured, 220. Entitled to subrogation against carrier, 220. Liability of joint and several, 227. Contribution between several, 227-229. Option of, to reinstate, 239. Can recover from reinsurer on payment, 251. Can recover from reinsurer costs of defending action by assured, 251. Must reinstate if tenant requires, 252. Duty of, when aware that assignee of policy is deceived, 305. Advancing on policy cannot avoid it and claim payment, 312. " Own Insurer," what it means, 429. INTEREST— On policy money, 303. INTERIM INSURANCE.— 26-27. 486 INDEX. INTERIM NOTE.— 25-26. INTERIM RECEIPT.— 26-27, 169. 422-423. INTERPLEADER— ■Whether Insurer should have recourse to, 345. i INVESTMENT— By insurance company, powers of, 36r. LANDLORD— Insurance of, beyond own interest, 50. And tenant, agreenient between, as to reinstatement, 24^ ' ,, separately insuring, effect of, 260, 266-2^. Not bound to rebuild, 261. Whether entitled to rent in case of fire, 262. Effect of covenant by tenant to insure in name of, 266. May require insiirer to reinstate, 266. LEGAL— May mean ' ' lawful " in pro viso avoiding policy, 311. Being mortgagor, not to pay policy mo;ney to mortgagee^ 275. Under covenant to repair, lessor's right to insurance, 275. ,, ,, insure, lessor's right to insurance, 275. ,, ,, ,, and reinstate, no lien for money spent in reinstating, 275. LETTERS— Evidence of right to policy, 33r. LIEN— Gives insurable interest, 48-49, 55, 6gi Of trustee advancing on policy, 315. On policy money, how created, 338, 340, 342. Payment of premiums by stranger does npt give, 340. Whether payment by part owner gives, 340, ,, ,, by mortgagor gives, 341. „ ,, by tenant for life gives, 341, 342. „ „ under voidable assignment gives, 341. Right of contribution does not give, 341. By deposit of policy, 342, 344, Of insurance broker, 343. Of solicitor, 343. Drops with policy, 344. LIFE INSURANCE- Not indemnity, 13, 17, 294. Definition of, i8. Legality of trust policy of, 65. What risks may be taken in, 126. Does not cover suicide, 126. „ „ death by law, 126. General inquiries by insurers, 133-134. Conditions of, 197. Dispositions of policy of, 295, 303. Policy not within order and disposition clause, 296, 299. ,, a negotiable instrument, 296. Gift of policy where possession retained, 296. Whether succession duty payable on^ 333. INDEX. 487 LIFE INSUEANOE— (fioKiinwed) Policy is property, 333-334. Applicability to mortgage debt of proceeds of, 334. Power of mortgagee to sell, 334-33S. LIMITATION— Of time to sue for loss, 177, 181, 346. LINEN— What policy on, covers, 32. LIQUIDATORS- May eSect guarantee insurance, 456. LOCALITY— Kisk aSected by, 102. No rectification of mistake in, 103. Information must be given to insurer as to, 104, Wherein policy operates, 198-199. Insured gone beyond, 199, LOSS— Insurer liable for actual, 3, 4. Recovery by limited owner beyond own, 50-51. Marketable value as measure of, 50-51. Tender of premium after, 88. From inherent faults, 102. Proximate cause regarded, 112-119. From attempts to extinguish fire, 117. ,, ,, escape fire, 118, 120. Assured's duty to avert, 119, By theft during fire, 120. In transitu, 122-123. To apparel whilst worn, 124. To live stock off premises, 124. To locomotive chattels, 124. Covered anywhere, if no place specified, 125. Time to sue for, 177, 181, 346. Notice of, to insurers, 179-180. Agent's adjustments of, 181. Particulars of, 181-182. Delay in, notice of, 182. Verification of, condition as to, 183, 185. ,, by magistrate, &c., 183. Affidavit of, 184. Proof of, 183, 186, 188. Time for payment after proof of, 186. Valuation of, 186, 189. Mistake as to cause of, 187. Overcharge for, 187. Ascertainment of, before suing for, 189. Not within policy, directors' power to pay, 361. MANUFACTURER- Insurable interest in unfinished work, 62. MARKETABLE VALUE— As measure of loss, 50-51. 488 INDEX. MARRIED WOMAN— Policy shown to be for benefit of, by parol, 21. Presumed to have insurable interest in husband's life, 35, 295. Insurance of, under Married 'Women's Property Act, 36, 317-319. Husband's insurance for benefit of, and children, 36, 317, 323. Husband may insure separate property of, 51. Consent of, whether necessary to assignment of policy for her benefit, 316. Policy of, on husband's life for her separate use and children, whether husband can deal with it, 316. I Policy before Married Women's Property Act surrendered for one after, 319. Canadian law as to policy by husband for, 323. Assignment of trust policy by, 324. Policy for, not issued until husband's death, 325. MATERIAL FACT— Disclosure of; 146, 149, 153, iS4-iS7- Whether question for jury, 146. Whether refusal by other office to insure is, 150. Must be stated under general question, r53-i54. Purchaser of policy, how affected by concealment of, 153. MEDICAL ATTENDANT— Who considered to be, 136, 137-151. Wrong reference to, 131. Non-disclosure of, 197. Whether agent of insured, 430. Whether death within accident policy when from treatment by, 443, 444- MERCHANT— Insurance for foreign correspondent by, 54. Bills of lading received with directions to insure by, 54. MISDESCRIPTION— Of premises, 155. Of residence, 152, 155. MISREPRESENTATION— Return of premiums where, 86-87. By insurer, 148. By insurer's agent, 149. By life insured, 149. As to temperate habits, 150. Innocent as to health, 151, 154. As to residence, 152. On reinsurance, 154. Forfeiture of premiums through, 154. Discovery of, by insurer before payment, 154. As to part of property, 155. As to incumbrances, 156. Agent's knowledge no excuse for, i8g. By life insured, 200. MISTAKE— In policy whether rectified, 22, 103. In policy whether waived, 24. In policy not rectified and policy rescinded, 24. ' INDEX. 489 MISTAKE— {continued. ) As to exiatenoe of thing insured, return of premium, 1. Payment of insurance through, 94. In proofs as to cause of fire, 187. In stating claim, 193. Of agent filling up proposal, 420-421. MORTGAGE— Contribution between insurers in case of, 229-230. Does not defeat assured's interest in policy, 291. Of life policy by deposit, 298. „ „ notice of, 298-300. Satisfaction of, before insurer's pay, 306. Proceeds of policy applicable to, under Conveyancing Act, 334. Of lite policy, what it should contain, 337. To insurers of land and policy, latter cannot be set off, 386. MOKTGAGEE— Insurance beyond own interest, 50, 223, 225. Insurable interest of, 69, 223, 225, 269, 270. Policy of, whether affected by mortgagor's arson, 115. Double insurance by, 169. Subrogation of insurer to right of, 224. Whether he can recover from mortgagor after being paid by insurer, 225. Further advances by, whether fire policy extends to, 270. Mortgagor's interest in policy of, 27r. Bight of, to charge premiums, 271, 272, 277, 278, 336. Proceeds of policy of, whether applicable to reinstatement, 271. Obligation of, to reinstate fixtures, 272. Interest of, in mortgagor's policy, 272. Kight of, to insure under Conveyancing Act, 1881, 272. Tenant for life paying insurance money to, 274-275. Bight to insurance under Settled Land Act, 1882, 274. Of lessee who insured not entitled to policy money, 273. Under bill of sale, whether entitled to policy money, 276. Joint insurance, and by mortgagor, 277. Subrogation of insurer to rights of, against mortgagor, 279. Contribution where separate insurance by, and by mortgagor, 280-283. Apportionment where separate insurance by, and by mortgagor, 282. Whether receiver appointed by, must insure, 281. Whether bound to account to mortgagor for policy money, 281-282. Can only recover amount of his debt, 282. Of leaseholds can resist forfeiture, 284. Eecovery by, of premiums against mortgagor personally, 326. Policy by, on life of mortgagor belongs to, 326. Of annuity, insurance by, 327. Whether paj'ment of premiums by, divests mortgagor's right to policy, 330- Evidence that policy to be assigned by, on redemption of security, 331-332- Entitled to policy effected by him on life of cestui que vie, 334. Power of sale of, on breach of covenant to insure, 334. „ ,, ,< ,. to keep policy on foot, 334. Power of, to appoint receiver, 334. Upon trust cannot sell, 335. When also insurer premiums allowed to, as just allowances, 336. Whether bound by mortgagor's novation, 399. 490 INDEX. MORTGAGOR- Insurable interest of, 66, 269, Assignment of policy of, to mortgagee, 67. Whether liable after mortgagee paid by insurer, 225. Interest of, ceases on foreclosure, 269. Interest of, in mortgagee's policy, 271. Being lessee, should not pay policy money to mortgagee, 275. ,, with covenant to insure and reinstate, has no lien on policy for money expended in reinstating, 275. Joint insurance with mortgagee, 277. Premiums paid by mortgagee whether chargeable to, 278, 279, 326. ; Subrogation of insurer to mortgagee's right against, 279. Separate insurance by, and by mortgagee, whether insurer entitled to contribution, 280-283. Insurance by, and by mortgagee in different offices, appointment of amount, 281. Whether mortgagee bound to account to, for proceeds of his policy 281-282. Payment by, of premiums after bankruptcy, 326. Policy on life of by mortgagee belongs to latter, 326. Whether right to policy of, divested by mortgagee paying premiums, 33°- Evideiice that policy to be assigped to, on redemption, of principal security, 331-332. Whether novation by, binds mortgagee, 399. MORTMAIN— Whether shares of insurance companies within, 367. Whether policy secured on real estate of company within, 368, 381. NEGLIGENCE- Of assured covered by policy, 6. Gross, when evidence of fraud, 12. Damages in action for, not reduced by insurance, 19. Except where assured dies through, 20. Loss from, 113. Subrogation of insurers where loss caused by, 221, Tenant's liability for fire through, 258. Tenant may insure against liability for fire through, 259. Covered by ordinary policy, 259. Of agent insuring, liability for, 428-429. Whether insurance deducted from damages for, 431-432. Contributory, defence in action for injury by accident, 437. notice- To pay premium, 90. Of change of business, 162. Of loss, 179-181. Of loss, condition as to, 180. Of mortgage of life policy, 298-301. Of assignment of policy, 299-300. ,, must be acknowledged, 300, ,, not to be delayed, 301. „ inquiry as to previous, 3or. Whose duty to give, where policy settled, 313. Of companies' statutes and deeds presumed, 355. To agent, what sufficient, 413-419. To directors, what sufficient, 419. INDEX. 49 1 TXOTIC^— {continued. ) To assured's broker not notice to insurer, 429. Of assignment, whether necessary to prevent policy passing to bank- ruptcy trustee, 458. NOVATION— What it is, 389-390, 394. Proof of, 389. "Wlien creditors bound by, 390, 394-395. When policy-holders bound by, 393-394. None where companies' distinct, 396. Whether payment of premiums is evidence of, 398. Whether acceptance of bonus is evidence of, 399. Claim against transferee company is evidence of, 399-400. Whether verbal protest will prevent, 399. When policy-holder is shareholder, 399. Whether by mortgagor binds mortgagee, 399. Whether by settlor binds trustee, 400. Whether receipt of annuity amounts to, 400. OCCUPATION— Disclosure of, 138. Change of, 166. OCCnPIER— Insurance beyond own interest, 50-51, OVERDOSE— Whether within accident policy, when death from, 443-444. OWNER- Insurance beyond own interest, 50-52. Equitable, may for insuring be sole, 62, PAWNBROKER— Insurance of full value by, 52, 67. PAYMENT— Into court by insurers, 65, 306, 345-346. Of premiuin, who to make, 90. Of premium, during days of grace, 90-92. Of premium, by cross accounts, 93. Of policy money, by mistake, 94. By insurer, to trustee of policy, 346. Under order of court, indemnifies insurer, 346. Of policy money, after winding up order, 385. Of premiums, not evidence of novation, 398. PERITONITIS— From blow, whether within accident policy, 443, [ PLEDGEE— Insurable interest of, 67, POLICY— Attaches when risk begins, 8. When it does not attach after risk determined, 8. Whether fire policy on ship marine risk, 12. On life, not indemnity, 17. On life, is contract to pay sum certain, 17. On life, definition of, 18. 492 INDEX. FOJACY— {continued. ) Meaning of word, 20. Verbal promise to grant, 20. Whether necessary, 20-21. Objects of, shown by parol, 21. Not delivered may support action, 22. May be rectified, 22-24. Issued after loss, 23. Person interested is person to sue on, 23. Agreement to grant, how enforced, 23. Not according to agreement, 22-24. Want of seal to, not pleadable, 23. Mistake in waived, 24, Alteration of, 24. Bescission of, where mistake not rectified, 24. Cannot be added to, 25. Loss of, company indemnified on payment, 25. Dated after fire, 27. "Open," 28. "Floating," 28-58, 61. Written words in, govern printed, 29. Kigid construction of, not favoured, 29-30. Words of, supersede custom, 31-32. Ambiguity in, custom may control, 31-32. Course open to insurer where policy obtained from him by fraud, 33. Cancellation of, for fraud of assured, 31. Refusal of insurer to pay where fraud in obtaining, 31. Cancellation of, for insurer's fraud, 32. Failure to cancel for fraud will not prevent insurer pleading want of interest, 32. Title to, not determined by payment of premiums, 39. Assignee of, need not have insurable interest, 40. Only value of interest at date, of recoverable, 43. "Blanket," 58. Trust policy legal, 65. Name of person for whom effected must appear, 70, 84. By one partner in firm's name, 70, Whether to be under seal, 70. Forfeiture of, not favoured, 73. Receipt for premium in, 74. Assigned, return of premium, 82. Invalid, return of premium, 84. „ whether insurer must grant another, 84. Obtained by fraud, whether premium returnable, 85. Alteration, effect of, 85. Fraudulent, order to deliver up, 85-86. Cancelled, return of premiums, 86. Condition in, as to forfeiting premium, 87. Differing from proposals, return of premium, 89. Voidable where premium in arrear, 89. "Lost or not lost," no return of premium, 94. Specific performance of, agreement to grant, 95. Ultra vires, premium returnable, 95. When it expires, 96. Time policy, 96. Whether property protected from date of, 104, Death before issue of, 98. INDEX, 493 FOUCY— {continued. Bisk begun before granting of, 97-98. Fire before delivery of, 98. Covers all losses up to amount of, 98. Date of, whether inclusive, 99. Duration of, 99-100. Strict compliance with terms of, loi, 158. On life local, 103. Whether date of, time for asceHaining what, covered by, 104. Whether it operates if house vacant, 105. Whether avoided by increase of risk, 106. Purchaser of, affected by concealment, 153. Forfeiture of, by misrepresentation, 154. Delivery up of, for fraud, 154. New granted on old proposal, 155. Voidable for non-performance of condition, 158. Waiver of forfeiture of, 158-159. Void means voidable, 158. Against fire, usual conditions in, 159-160. On removal ceases to attach, 161. Suspended during forbidden user, 161. Not issued, whether within conditions as to other insurance, 171. Against fire, what covered by, 171. ,, whether it passes to real or personal representatives, 174, ,, assignable, 173. ,, bankruptcy, effect of, on right to, 174. „ execution, effect of, on right to, 174. Void for going beyond limits, 198. Sur autre vie avoided by suicide, 199. Without benefit of salvage illegal, 219. Whether contributing evidence as to, 233, Specific, what it is, 212. Whether vendor can recover on, after sale of property, 285-287. Assignment of, must accompany property, 288. Against fire, whether runs with land, 289-291. ,, whether it passes on sale of property, 291. ,, whether passes with beneficial interest, 292. On own life, how it may be dealt with, 295. ,, assignable, 295, 298, 303. ,, may be bequeathed, 295. ,, subject of donatio mm-tis causd, 295. On life, whether within order and disposition clause, 296, 299. J, ,, negotiable instrument, 296. „ gift of, where possession retained by donor, 296, 297, ,, equitable mortgage of, 298. Bight to sue under assignment of, 298, 300. Notice of assignment of, 299, 300. Must specify principal place of business, 300. ' Agreement to assign, 302. Whether covenant to effect vests policy in covenantee, 303. Deposit of, as security, 302-303. Interest on, 303. Change of health before issue of, 304. Effected by fraud, insurer can get back money, 305. Assigned duty of insurers, aware of invalidity of, 305. Vitiated by aggravation of concealed illness, 305. Assigned before winding up, effect of, 306. 494 INDEX. POLICY— (continued. ) Specific performance of contract to assign, 307. Bonus passes by contract to assign, 307. On own life passes to trustee in bankruptcy, 307. Whether avoided by going abroad, 308. Purchaser of, how affected by assured'a concfealment of cTiange of health, 305. Specific performance of contract to assign policy, 307. Legal means "lawful," in proviso avoiding, 311. Whether authority to hold, amounts to assignment of, 312. Insurers advancing on, cannot avoid and claim payment, 312, Assignment of, by bankrupt, secretly, 312. ' ,, by felon before conviction, 312. Gift of, 313. Inchoate settlement of, 313. Names of persons interested must appear in, 314. Not kept up trustee may sell, 315-316. Whether trustee must pay premiums on, 315. Trusts of, construed like other trusts, 315. „ cover bonus, 316. For wife and children under Married Women's Property Act, 318-320, _ 321-324. Issued before Married Women's Property Act, surrendered for one after, 319. For wife not issued until husband's death, 324. ,, assignment by her of, 324. By creditor on life of debtor, 326-329. By mortgagee of annuity, 327. On another's life generally belongs to grantee of, 329. Letters as evidence of right to, 331, Lien on, how created, 330-342. Equitable change on, how created, 342. Lien on, drops with, 344. Whether it can be taken in execution, 346. Where void, fresh one issued, 358. Ultra vires, 357-359- Loss not within, payment by directors of, 361. Insurance broker's lien on, 343. Solicitor's lien on, 343. Ultra vires, claim in respect of, 380-381. Whether within mortmain, 381. Whether company trustee for assignee of, 382. Covenant to pay out of special funds, 382-384. Value of, cannot be set oil where loan by insurers, 386-387. Endorsement of, by agent, 422. Of one company cannot be adopted by another, 424. Effected by unauthorised agent, a.doption of, 426-427. Eenewal of, must conform to original agreement, 427. Of guarantee insurance, contents of, 453. POLICY-HOLDER— Entitled to copy of statement of company's business, 374. ,, ,, shareholder's address book, 374. ,, ,, deed of settlement, 374. Can prevent amalgamation, 374. Whether he is a creditor, 374, 381. Cannot interfere in management'of company, 374, 378, 381. •INDEX. 495 POLIO Y-HOLDER—(con«inMcd. ) Whether liable to contribute when participating, 375. ,, „ „ in mutual company, 375-376. Claim of, on company's funds, when it begins, 378. Whether right to receiver, 378. No priority over other creditors, 378. In mutual society, how loss of, recoverable, 379. Company's liability to, how limited, 379. Covenant to pay claim of, out of special funds, 382, 384. Appropriation of funds for, 384-385. Limited liability to, does not aflfect creditors, 387. Claim of, after amalgamation, 393. PREMIUM— Paid before attachment of risk, is subject thereto, 7. Return of, where risk not disclosed, 9. ,, ,, risk not run, 9. „ ,, policy rescinded for mistake, 24. Repayment of, when risk rejected, 25- Repayment of, when further premium demanded and refused by assured, 25. Retainer of, by agent may not constitute failure of company to repay, 25. Acceptance of, after discovery of fraud, 31-33. Company may refuse to take, where policy obtained by fraud, 31. Return of, where policy cancelled for fraud, 33. Payment of, not conclusive as to title to policy, 39. Nature of, 72. Whether prepayment necessary, 73. Waiver of non-payment, 73-76. „ by acceptance of, 75-76. Credit for, 74-75- Receipt for, in policy, 74. Payment of, by bill, 75. Company bound by agent's receipt, yS. ,, ,, director's receipt, 76. Debiting to agent, no waiver, 77. Payment of, overdue after death, 77. Acceptance by company after death, 77. Health of assured when overdue paid, 78. Returnable where no risk, 78-81. Not returnable if risk begins, 78-81. Not apportionable if risk begins, 78. Return of, where in excess of interest, 79-80. „ „ several policies, 79-80. ,, at time of insurance life dead, 81. ,, at time of insurance house burnt, 8i. Apportionable where risk partially attached, 81. Not returnable in case of suicide, 81. Returnable where risk never attached, 82-83. Not apportionable in time policy, 82. Not returnable where fire not covered by policy, 82. Not returnable on assignment of policy, 82. Whether returnable in life insurance, 82-83. Parties in pan delicto, whether returnable, 83-87. Where risk run not returnable, 83. Whether returnable where illegal insurance, 83-84. 496 INDEX. PREMIUM— (con einued. ) Whether returnable where name of person interested not in pol 84. Whether returnable where over insurance, 85. „ „ ,, fraudulent insurance, 85. ,, „ „ policy ordered to be delivered up, 85. „ „ ,, policy cancelled, 86. ,, „ „ misrepresentation regarding policy, 8< ,, ,, ,, concealment regarding the insui'ance, Where fraud of insurer, whether return of, 87. forfeited according to condition, 87, 196. Additional, insurer not obliged to accept, 87. Tender of usual, after loss, 88, Amount of evidence as to materiality of misrepresentation, 88. Payment to agent without authority, 88. Receipt from agent, ratification by insurer, 88. Beturnable by agreement, 89. Where policy differs from proposals, return of, 89. Punctuality in payments, 89. Delay in paying through change of agent, 89. Delay in paying through change of company's office, 89, Who to pay, 90. Notice to pay, whether necessary, go. " Days of grace," 90-92. Debiting agent with, effect of, 93, Promise of agent to pay, 93. Cross accounts, payment by, 93. Unpaid, and policy money paid by mistake, 94. No return where insurance " lost or not lost," 94. Not within Apportionment Act, 95. Effect of refusal to receive, 95. Returnable where policy ultra wcs, 95. Not apportionable if risk has attached, 98. Instalments of, to be punctually paid, 98. Payment and death within days of grace, loi. Forfeiture by misrepresentation, 154. Payment prevented by war, 198. Paid by mortgagee added to security, 277-279. Received after insurer aware that policy invalid, 305. Not paid by settlor, trustee may sell policy, 3x5. Whether trustee must pay, 315. Paid by mortgagee, whether mortgagor liable for, 326-330. Paid by mortgagor after bankruptcy, 326. Whether charging debtor with, makes policy his, 329-330. Whether payment by mortgagee divests mortgagor's right to pol 330. Allowed to mortgagee-insurer as just allowances, 336. Whether payment of, by stranger gives lien, 340. ,, by mortgagor gives lien, 341. J, „ by part-owner gives lien, 341-342. ,, under voidable assignment gives lien, 341. What divisible as profits, 377. Payment of, not evidence of novation, 39S. Credit of, to agent, 414. Credit of, by agent, 415, 416. 4^8. Agent cannot dispense with payment of, 415. Payment by cheque to agent of, 415. INDEX. 497 PREMIUM— (coniinMcd ) Returnable where policy not granted, 418. Overdue waiver of forfeiture by receipt of, 420.' Payment of, to foreign agent after war begun, 421, If retained, policy must be granted, 423. Direction to accumulate, whether within Thelluson Act, 464. PRIZE— Whether insurable, 4. PROFIT— Assured not to make, 2-3, 4, 13. PROFITS— Whether insurable, 41-42. What are surplus, 377. All premiums not divisible as, 377. PROOFS— Of arson, 116, 194. Preliminary, 179-180. Of loss, 183, 188. time for payment after, 1S6. where needless, 186. mistake in, 187. waiver of, 185, 187. what required, 187-188. What is satisfactory, 189. Of accident, what requisite, 447-448. PROPERTY— Adjacent, cost of saving, 11-12, 119, 122. ■ ,, disclosing danger to, 114. ,, damage to, in extinguishing fire, 117. Removal of, to escape fire, 118, 120. Insured's duty to preserve, 119-120. Stolen, during fire, 120-121. Lost, during fire, 120. In transitu, 122-123. Out of place, where insured, 124-125. Removal of, 125. Amount payable where deficient insurance of, 125. Misdescription of, 148, 155. Misrepresentation as to part of, 156. , Over-valuation of, 192-193. Sold, recovery by vendor of insurance, 174. Life policy is, 331, 334. PROPOSAL— Declined by other ofiSce, 150. Not answering question in, as to claim on other office, 151. Mistake of agent filling up, 421. Accident insurance, what must be stated in, 438. PURCHASER— Whedier fire loss fall on, 289, 291. Of policy how affected by assured's concealment of change of health, 305- 2 I 498 INDEX. QUESTIONS— Answers to general, must state all material facts, 153. EAILTTAY PASSENGERS' INSURANCE— Rights against third persons preserved, 432. RATIFICATION— By receipt of premium, 88. Of agent's contract outside company's business, 424. ,, ,, his authority, 424, By company after loss, 424. General principle as to, 425. Of insurance for another, 425. RECEIVER— Appointed by mortgagee whether to insure, 281. Power of mortgagee to appoint, 334. Eight of policy-holder to, 378. May effect guarantee insurance, 456. REINSTATEMENT— Condition as to, 195-243. Statute as to, 195. Eight to, 196. Election as to, 196, 245-246. By insurer gives right to old materials, 216. Option for, 239. Metropolitan Building Act, as to, 240-242. To what applicable, 241. Obligation of insurers as to, 241-244. Notice to company as to, 242, Enforcing duty as to, 242. Where required by tenant and insurer sued by landlord, insurer can interplead, 243. By landlord, insurer not to pay for, 243. By tenant, insurer not to pay for, 243. How done, 243-244. When to be done, 243. Fire during, 244. "New for old," allowance on, 245. Landlord and tenant, agreement as to, 245. Insurer's right to, not affected by assured, 243. Tenant can require, 262. Landlord can require, 266. Not of chattels, 272. By mortgagor on request of mortgagee, 273. By lessee under covenant for reinsurance and, 275. Under bill of sale no right of, 276. REINSURANCE— What may amount to, 27. Insurer has insurable interest for, 247. Nature of, 247-248. Where insurance ultra vires, 247. Not after winding-up order, 247. Assured not privy to, 248. Discharged by payment to assured, 248. Whether solvency of reinsured affects sum payable on, 24B. Assured no lien ou policy of, 24S. INDEX. 499 EEINSTJEANCE- {continued. ) What reinsurer undertakes by, 248-249. "Where several policies, 249. Where condition to pay as may be paid, 250. ,, ,, pro rata, 250. Payable on payment by insurer, 251. Reinsurer's position in action by assured, 251. Effect of contribution clause in policy of, 252. Condition that reinsured retain certain risk, 252 254. Drops with insurance, 252. Same bond fides as on insurance, 253. What must be disclosed on, 253-254. Time for recovery under policy of runs from loss, 254. Of one company in another by agent of both, 416. By two agents keeping cross accounts of premiums, 417. REMOVAL— Of goods to escape fire, 118-120. To other residence, insurer's consent to, 122. ,, ,, whether property protected during, 123. Temporary, 125. Insurance ceases on, 161. RENT- Insurance by tenant of, 51. REPRESENTATION— Premium as evidence of materiality of, 88. When a warranty, 139. Importance of materiality of, 139-141. Or mere opinion, 142, 147. Untrue, without assured's knowledge, 144. Insurance without any, 147. Fraud in, 148. As to part of property, 156. RESERVE FUND— Whether capital, 385. RIOT— Loss from, excepted, 172. RISK— Attaches before contract complete, 7-8. Premiums returnable, where non-disclosure of, 9. ,, if risk not run, 9. Assured's duty to avert occurrence of, 10. Cost of averting, 11-12. To adjacent property, n. Constitutes insurable interest, 47. If none, premiums returnable, 78-80, 82. If it begins, premiums not returnable, 78-83. If it begins, premium not apportionable, 78. Partially attached premium apportionable, 81. Not disclosed, insurer not bound to accept additional premium, 87. "Lost or not lost," no return of premium, 94. Circumstances affecting must be disclosed, 96. Of carrier, when it begins and ends, 97. Deviation may terminate, 97. 500 INDEX. m.SK- {continued.) If attached premium not apportionable, 98. Due to inherent faults, 102. Locality affects, 102. Property in transitu whether within, 104. Goods loading, whether within, 104. Empty house, whether within, 105. Whether increase of, avoids policy, 106. Steam engine, what user of, within, 106. Alterations of premises, 106. Friction causing fire, whether a fire risk, no. Chemical action, whether a fire risk, no. Fermentation, whether a fire risk, no. Explosion, whether a fire risk, in. Gas, whether a fire, in. Gunpowder, whether a fire, in. Heat without ignition, whether a fire, 109-112. Hot water, whether a fire, 112. Electricity, whether a fire, 112. Negligence, fire by, whether within, 113. "Wilful act, loss from, whether within, 113. From incendiarism, disclosure of, 111-115. To adjacent property, 114. Removal, loss from, whether within, 118-120. Theft during fire, whether within, 120. What may be taken in life insurance, 126. Hazardous trade, extra, from, 162-163. Change of trade, extra, from, 162-163. Liquor-selling, whether increase of, 163. By use of kiln, 163. By experiment, 164. By oven, 165. By engine, 165. By non-occupation, 165. By riot, 172, Where ultra vires, 360. Driving not exposure to, 444. RUPTUKE— Whether within accident policy when through jumping from train, 440. Whether within accident policy when, from using clubs 442. Of blood-vessel, inflammation from, 443. Death from operation for, 444. SALE— Mortgagee's power of, on breach of covenant to insure, 334. Mortgagee's power of, on breach of covenant to keep policy on foot, 334. Where mortgage on trust, no power of, 335. SALVAGE— Expenses of, how borne, 121-122. Illegality of policy without benefit of, 219. Insurer's right to, 220. SEAL— Informal use by directors of, 256. What contracts must be under, 358. Absence of, whether a defence, 358. INDEX. 501 SECRETARY— Holding shares as trustee for company, whether contributory, 364. SETTLEMENT— Of policy, expressed intention to make, 313. Breach of covenant by husband no excuse for breach by wife's father of covenant to make, 314. Trustee liable for enabling settlor to dispose of policy under, 314. Whether trustee may sell policy not kept up under, 315. Whether trustee must pay premiums of policy under, 315. Inspection of company's deeds of, 354. Directors' non-compliance with provisions of, 359. Of policy, how affected by bankruptcy, 462. SHARES— If transferred before liquidation, executors not liable on, 363. In trustee's name, 363. In secretary's name as trustee, 364. Liability of vendor of, 363. Sale of, to person who cannot be registered, 364. Ko exemption from calls by forfeiture of, 365. Incomplete transfer of, before winding up, 365. Promoters' liability to contribute on, fully paid, 365. Directors' liability for qualifying number of, 365. In company holding land whether in mortmain, 367. SOLICITOR— Lien on policy of, 343. Agreement by company always to employ, 359. Nature of claim for costs of, 3S9-360. SPECIFIC PERFORMANCE— Of agreement to grant policy, 95. Of contract to assign policy, 307. Of agent's contract to insure, 418. SPITTING BLOOD— Meaning of, 136. Untrue statement as to, 150. SPONTANEOUS COMBUSTION— Whether within fire policy, 172. SPRAIN— Through lifting weight, whether within accident policy, 442. STATUTES— 43 Eliz., c. 12 (Statute of Assurances), 8, 19 Geo. II., c. 37 (Insurable Interest), 49. 14 Geo. in., c. 48 (GambUng Act), 13-14, iS-^S, 70-71- c. 78 (Metropolitan Building Act), 238-241, 271-272. 56 Geo. IIL, c. 73 (Customs Annuity and Benevolent Fund Insur- ance), 309. 5 & 6 Vict., c. 39 (Factors Act), 58. 9 & 10 Vict., c. 93 (Lord Campbell's Act), 432. 10 & II Vict., u. 96 ) (Trustee's Relief Acts), 306. 12 & 13 Vict., c. 74 ) ^ 22 & 23 Vict., V. 35 (Lord St. Leonard's Act), 364. 23 & 24 Vict., u. 14s (Lord Cranworth's Act), 278-279. 27 & 28 Vict., c. XXV. (Railway Passengers' Assurance), 432-436, 445. 502 INDEX. STATUTTiS— {continued. ) 27 & 28 Vict., 0. 43 (Post-Office Insurances), 311. 30 & 31 Vict., c. 144 (Policy of Assurance Act, 1867), 198-299, 30! . 34 &^ 3S Vict., li. 103 (Customs Annuity and Benevolent Fund Asi ance), 309. 36 & 37 Vict., u. 66 (Judicature Act, 1873), 301-306. 38 & 39 Vict., c. 60 ) _ . ,, „ ... , . , , 39 & 40 Vict., c. 32 i (Fnendly Societies' Acts), 127, 209-210, 310. 42 & 43 Vict., u. 76 (Companies* Act, 1879), 362. 43 & 44 Vict., c. 42 (Employers' Liability Act), 448-450. 44 & 45 Vict., u. 41 (Conveyancing and Law of Property Act), 272-s 277-279, 334-336. 45 & 46 Viet., 0. 38 (Settled Land Act, 1882), 274. c. 73 (Married Women's Property Act, 1882), 317-3: STEAM ENGINE— User of, what within policy, 106. STOPPAGE IJSr TRANSITtr— Terminates interest, 55. Whether right of, gives title to insurance, 344, SUBROGATION— What it is, 5-6, 217-219, 282, None in accidental insurance, 19. Gives insurer right to damages recoverable by assured, 219. Assignment by insurer of, rights by defence to assured's action, 219,2; Defences against assured good against subrogated insurer, 220. Insurer entitled to, against carrier, 220. Reinsurer entitled to, 220. Assured recovering damages as trustee for insurer, 221. Of insurer where loss through negligence, 221. Of insurer to mortgagee's rights, 224. Condition as to, 225. Valued policy, how it affects, 226. Contribution, difference between it and, 228-232. Of insurer to mortgagee's rights against mortgagor, 279-283. SUCCESSION DUTY— Whether payable on life policy, 333, 465. SUE AND LABOUR CLAUSE— In fire policies, 121-122. SUICIDB- Premium not returnable in case of, 81. Whether within policy, 126-127, Meaning of, 128-129. Not mentioned in policy, 128. Presumption against, 129, 442, Whilst insane, 129. Effect of on assignment of policy, 129-130. Usual condition as to, 129. When company mortgagee of policy, 131. When covenant to keep up policy, 132, 308. Policy sur autre vie, whether avoided by, 199. SUNSTROKE— Whether an accident, 440. INDEX. 503 SURETY— Interest of creditor in life of, 67. Interest of co-surety in life of, 68. Interest of surety in life of principal debtor, 68. Paying debt, whether entitled to policy, 332, 344. Whether he may require discharge of employee making default, 452. SURETYSHIP— Difference between insurance and, 8. TEMPERANCE— Statements aa to, 137-150. TENANT— Insurance beyond own interest, 50. Insurance of rent by, 51. In common can insure full value, 51. Joint-tenant can insure full value, 51. For life, whether bound to insure, 255. In tail, whether bound to insure, 235. In tail, whether entitled to policy money, 255. For life, whether entitled to policy money, 255. For years, whether bound to insure, 257. Liability for accidental fire, 258. Liability for fire through negligence, 258, When bound to reinstate, 259. Covenant by, to pay extra premiums, effect of, 259. For life, when bound to rebuild, 260. ' Insurable interest of, when under covenant to repair, 260. And landlord separately insuring, effect of, 260, 266-267. Covenant by, to repair and insure for fixed sum, 260. ,, to repair excluding fire, 260-261, ,, to insure runs with land, 261. Cannot compel landlord to rebuild, 26r. Can require insurer to reinstate, 262-266. Whether liable for rent in case of fire, 262. Damages for breach of covenant by, to insure, 263. Relief against breach of covenant by, to insure, 264-265. Breach by, of ooven.ant to insure not cured by ante-dating receipt, 264. Effect of covenant by, to insure in landlord's name, 266. Bound to insure, having option to purchase, 267. Insurable interest of, in rent, 267. For life, paying policy money to mortgagee, 274-275. THEFT— During fire, 120- 121. THELLUSON ACT— Direction to pay premiums, whether within, 464. TITLE— Condition aa to change of, 173. TRADE— Disclosure of hazardous nature of, 106-107. TRUST- Liability of policy on, 65. Niime of person for whom effected must (ipjear in policy on, 70. 504 INDEX. TB.VST— (continued.) Of policy construed like other trusts, 315. Where no fund for premiums, sale of policy on, 316. Of policy includes bonus, 316. TRUSTEE— May insure, 65. Insurance by, presumed to be qud trustee, 65. Policy must contain name of C. Q. T, and of, 314. Enabling settlor to dispose of policy liable, 314. May sell policy, settlor not paying premiums, 315. Whether premiums must be paid by, 315. Lien on policy for advances by, 315. Appointment under Married Woman's Property Act of, 318. Insurers paying to, 346. Secretary holding shares for company as, 364. Bequest of shares disclaimed by, 365. For assignee of policy, whether company is, 382. Bound by novation of settlor, 400. UBERRIMA FIDES— Whether insurance contracts require, 8, 146. ULTMA VIBES— How reinsurance affected where insurance is, 247. Directors' acts where, 355, 357. Company's business must not be, 357, 360, 362. Policies do not bind where, 357. Third persons and company contracting, 357, 360. Manager granting policies, 35S-359. Whether illegal acts are, 359. Whether informal acts are, 359. Dealings with funds restrained when, 361-362. Claim on policy which is, 380-381. Ratification of amalgamation which is, 392. USER— Disclosure of, 105-107. Whether to be as described, 105. Of house, 105. Of steam-engine, 106, 165. Increase of risk by, 106-107, 163-164, Change of, 106-107. Of paper-mill, 107. Of kibi, 107. For experiment, 164. Of oven, 165. By non-occupation, 165. VALUATION— Of loss, 186, 189, 190, 193. VALUED POLICY— May be on land risk, 3, 27. Where value conclusive, 3-4. Proof of loss necessary, 4. Interest necessary for, 212. Whether indemnity, 217. Subrogation in case of, 226. INDEX. 505 VENDOR— Insurable interest of, unpaid, 63. Interest of, paid, who has not conveyed, 63. When interest of, ceases, 64, 174. Whether fire loss falls on, 289-291. Whether right of, to stop in tranntH gives title to insurance, 344. Of shares, a contributory if on register, 364. WAGER— Difference between insurance and, 7, 45. Policy illegal if a, 44-45. WAGES— Of seamen not insurable, 44. WAIVER— Of delay in paying premium, 89. Of breach of condition, 158, 177. Of breach of policy, 159. By resolution to pay, 139. Of non-disclosure of other insurance, 169-170 Of forfeiture by assignment, 176. Of proof of loss, 185-187. When inferred, 186. Of condition as to forfeiting premiums, 196. By affirmance of contract, 197. Of right to arbitration, 209. Of forfeiture by acceptance of rent, 265. By agent of forfeiture, 419-420. WAR— Payment of premium to foreign agent after commencement of, 421. WAREHOUSEMAN— Insurance for full value by, 57. Insuring own and another's goods without authority, 427. WARRANTY— Part of the contract, 139-143. Materiality of, 139-141. Must be true, 139-144. Must be performed, 139-140. Express or implied, 139. In, or incorporated in policy, 139-144. That mill " worked by day only," 141-144. Mere opinion, and not, 142. Not necesary to state facts covered by, 142. Insurers may require special, 143. True " so far as known," 143. Of "good health," 143. That insured not subject to fits, 144. Effect of transfer of insurer's business on, 145. As to temperance, 150. WHARFINGER- Insurance of full value by, 52-57. 2 K 5o6 INDEX. WHARFINGBR-(coreMjOTCd). His liability to owner of goods for fire, S7- Goods held "in trust or on commiasion" by, S7- "WINDING UP— Effect of assignment of policy before, 306. Payment of assurance after order for, 385. How claims valued in, 388, Kesuscitation of company for, 397. PRINTED BV BALLANTYNE, HANSON AND CO. EDINBURGH AND LQNDOir. A CATALOGUE OF LAW WORKS PUBLISHED AND SOLD BY Stevens & Haynes, i3, BELL YARD, TEMPLE BAR, LONDON. BOOKS BOUND IN THE BEST BINDINGS. Works in all Classes of Literature supplied to Order. FOREIGN BOOKS IMPORTED. .LIBRARIES VALUED FOR PROBATE, PARTNERSHIP, AND OTHER PURPOSES. LIBRARIES OR SMALL COLLECTIONS OF BOOKS PURCHASED. A large Stock of Reports of the various Courts of England, Ireland, and Scotland, always on hand. Catalogues and Estimates Furnished, and Orders Promptly Executed. Note. — To avoid confusing our firm with any of a similar name, we beg to notify that we have no connexion whatever with any other house of business, and we respectfidly request that Corre- spondents will take, special care to direct all communications to the above names and address. INDEX OF SUBJECTS. ADMINISTRATION ACTIONS— page Walker and Elgood 1 8 ADMINISTRATORS— Walker . 6 ADMIRALTY LAW— Jones 14 Kay 17 Smith 23 ARTIZANS AND LABOURERS' DWELLINGS— Lloyd . . . .13 AS S AU LTS ^«« MAGISTERIAL LAW. BALLOT ACT— Bushby 33 BANKRUPTCY— Baldwin 15 Hazlitt 29 Inderrnaur (Question & Answer) 28 Ringwood I Si 29 BAR EXAMINATION JOURNAL 39 BIBLIOGRAPHY 40 BILLS OF LADING— Campbell 9 Kay 17 BILLS OF SALE— Baldwin 15 Indermaur 28 Ringwood IS. 26 BIRTHS AND DEATHS REGIS- TRATION— Flaxman 43 BUILDING LEASES AND CON- TRACTS— Emden 8 CAPACITY ' See PRIVATE INTERNATIONAL LAW. CAPITAL PUNISHMENT— Copinger 42 CARRIERS- i'^c RAILWAY LAW. „ SHIPMASTERS. CHANCERY DIVISION,. Practice of— Brown's Edition of Snell ... 22 Indermaur 25 Williams 7 And see EQUITY. CHARITABLE TRUSTS— Cooke 10 Whiteford 20 CHURCH AND CLERGY— Brice 9 CIVIL LAW—See ROMAN LAW. CODES— Argles 32 COLLISIONS AT SEA— Kay . . 17 COLONIAL LAW— Canada 18 Cape Colony 38 Forsyth 14 New Zealand Statutes .... 18 Tarring 41 COMMERCIAL AGENCY— Campbell COMMON LAW— Indermaur COMPANIES LAW— Brice Buckley Reilly's Reports . . , . Smith Watts Jfi« MAGISTERIAL LAW. COMPENSATION^ Browne Lloyd COMPULSORY PURCHASE- Browne CONSTABLES— SeeFOLlCE GUIDE. CONSTITUTIONAL LAW A HISTORY—' Forsyth Taswell-Langmead . . . , Thomas CONTRACTS— Kay CONVEYANCING— Copinger, Title Deeds . . . ' Copinger, Precedents in . . Deane, Principles of. . . . Williams COPYRIGHT— Copinger CORPORATIONS— Brice Browne COSTS, Crown Office- Short ....... COVENANTS FOR TITLE— Copinger CREW OF A SHIP— Kay ........ . CRIMINAL LAW— Copinger Harris . .$•«« MAGISTERIAL LAW. CROWN LAW— Forsyth Hall Kelyng Taswell-Langmead . . . Thomas CROWN PRACTICE— Corner CUSTOM AND USAGE— Browne Mayne CUSTOMS— .$■«« MAGISTERIAL LAW. DAMAGES— Mayne STEVENS 6^ HAYNES, BELL YARD, TEMPLE. BAR. INDEX OF ^\}^^^Q-T^-continucd. DICTIONARIES— Brown 26 DIGESTS— Law Magazine Quarterly Digest . 37 _ Menzies' Digest of Cape Reports. . 38 DISCOVERY— Peile 7 DISTRICT REGISTRIES— Simmons 5 DIVORCE— Harrison 23 DOMESTIC RELATIONS— Eversley 9 DOMICIL— See PRIVATE INTERNATIONAL LAW. DUTCH LAW 38 ECCLESIASTICAL LAW— Brice 9 Smith 23 EDUCATION ACTS— See MAGISTERIAL LAW. ELECTION LAW and PETITIONS— Bushby 33 Hardcastle 33 O'Malley and Hardcastle ... 33 Seager 47 EQUITY— Blyth 22 Choyce Cases 35 Pemberton 32 Snell 22 Story 43 Williams 7 EVIDENCE— See USAGES AND CUSTOMS. EXAMINATION OF STUDENTS— Bar Examination Journal ... 39 Indermaur 24 and 25 EXECUTORS— Walker 6 EXTRADITION— Clarke 45 See MAGISTERIAL LAW. FACTORIES— See MAGISTERIAL LAW. FISHERIES— See MAGISTERIAL LAW. FIXTURES^Btown 33 FOREIGN LAW— Argles 32 Dutch Law 3» Fobte 30 Harris 47 FORGERY— A« MAGISTERIAL LAW. FRAUDULENT CONVEYANCES— May 29 GAIUS INSTITUTES— Harris, 2° GAME LAWS— Locke . ... • 32 See MAGISTERIAL LAW. GUARDIAN AND WARD— Eversley 9 HACKNEY CARRIAGES— See MAGISTERIAL LAW. HINDU LAW— Coghlan 28 Cunningham 38 and 42 Mayne 38 HISTORY— Braithwaite 18 Taswell-Langmead 21 HUSBAND AND WIFE— Eversley 9 HYPOTHECATION— Kay 17 INDEX TO PRECEDENTS— Copinger 40 INFANTS— Eversley 9 Simpson 43 INJUNCTIONS— Joyce 44 INSTITUTE OF THE LAW— Brown's Law Dictionary ... 26 INSURANCE— Porter 6 INTERNATIONAL LAW— Clarke 44 Foote 36 Law Magazine 37 INTERROGATORIES— Peile 7 INTOXICATING LIQUORS— See MAGISTERIAL LAW. JOINT STOCK COMPANIES— See COMPANIES. JUDICATURE ACTS— Cunningham and Mattinson . . 7 Indermaur 25 Kelke 6 JURISPRUDENCE— Forsyth 14 JUSTINIAN'S INSTITUTES— Campbell 47 Harris 20 LANDS CLAUSES CONSOLIDA- TION ACT— Lloyd . 13 LAND, IMPROVEMENT OF, by Buildings — Emden 8 LATIN MAXIMS .28 LAW DICTIONARY— Brown 26 LAW MAGAZINE and REVIEW . 37 ' LEADING CASES— Common Law 25 Constitutional Law 28 Equity and Conveyancing ... 25 Hindu Law 28 LEADING STATUTES— Thomas 28 STEVENS &' HAYNES, B^ELL YARD, TEMPLE BAR. INDEX OF SUBJECTS-^''«'2»««^- PAGE LEASES— Copinger 45 LEGACY AND SUCCESSION— Hanson 10 LEGITIMACY AND MARRIAGE— See PRIVATE INTERNA- TIONAL LAW. LICENSES — See MAGISTERIAL LAW. LIFE ASSURANCE— Buckley . . . . '. . . . 11 Reilly 29 LIMITATION OF ACTIONS— Banning . . .'..'. . . 42 LUNACY— Williams 7 MAGISTERIAL LAW— Greenwood and Martin 46 MALICIOUS INJURIES— See MAGISTERIAL LAW. MARRIAGE and LEGITIMACY— Foote 36 MARRIED WOMEN'S PRO- PERTY ACTS— Bromfield's Edition of Griffith . 40 MASTER AND SERVANT - Eversley 9 See MAGISTERIAL LAW. „ SHIPMASTERS & SEAMEN. MERCANTILE LAW 32 Campbell 9 See SHIPMASTERS and SEA- MEN. „ STOPPAGE IN TRANSITU. MERCHANDISE MARKS— Daniel 42 MINES— Harris 47 See MAGISTERIAL LAW. MORTMAIN— See CHARITABLE TRUSTS. NATIONALITY— See PRIVATE INTERNA- TIONAL LAW. NEGLIGENCE— Campbell 40 NEWSPAPER LIBEL— Elliott 14 NEW ZEALAND— Jurist Journal and Reports . . 18 Statutes 18 OBLIGATIONS — Brown's Savigny 20 PARENT AND CHILD— Eversley 9 PARLIAMENT— Taswell-Langmead 21 Thomas 28 PARLIAMENTARY PRACTICE— Browne . . ' 19 PAGE PARTITION— Walker 43 PASSENGERS— See MAGISTERIAL LAW.' „ RAILWAY LAW. PASSENGERS AT SEA— Kay 17 PATENTS— Daniel 42 Higgins 12 PAWNBROKERS— See MAGISTERIAL LAW. PETITIONS IN CHANCERY AND LUNACY— Williams 7 PILOT§— Kay 17 POLICE GUIDE— Greenwood and Martin .... 46 POLLUTION OF RIVERS— Higgins 30 PRACTICE BOOKS— Bankruptcy 15 Companies Law .... 29 and 39 Compensation 13 Compulsory Purchase. ... . . 19 Conveyancing 45 Damages 31 Ecclesiastical Law 9 Election Petitions 33 Equity 7, 22 and 32 Injunctions 44 Magisterial 46 Pleading, Precedents of . . . 7 Railways 14 Railway Commission .... 19 Rating 19 Supreme Court of Judicature . . 25 PRACTICE STATUTES, ORDERS AND RULES— Emden II PRECEDENTS OF PLEADING— C'unningham and Mattinson . . 7- Mattinson and Macaskie ... 7 PRIMOGENITUREr- Lloyd 13 PRINCIPLES— Brice (Corporations) . , . , . 16 Browne (Rating) 19 Deane (Conveyancing) .... 23 Harris (Criminal Law) .... 27 Houston (Mercantile) .... 32 Indermaur (Common Law) . . 24 Joyce (Injunctions) ..... 44 Ringwood (Bankruptcy) ... 15 Snell (Equity) 22 PRIORITY— Robinson 3^ PRIVATE INTERNATIONAL LAW— Foote 36 STEVENS &' HAYNES, BELL YARD, TEMPLE BAR. INDEX OF SUBJECTS-««/»««^^. PAGE PRIVY COUNCIL— Michell 4,4, PROBATE— Hanson lo Harrison 23 PROMOTERS— Watts 47 PUBLIC WORSHIP— Brice q QUARTER SESSIONS— Smith (F. J.) 6 QUEEN'S BENCH DIVISION, Practice of— Indermaur 25 QUESTIONS FOR STUDENTS— Aldred 21 Bar Examination Journal ... 39 Indermaur 25 Waite 22 RAILWAYS— Browne 19 Godefroi and Shortt 14 See MAGISTERIAL LAW. RATING— Browne 19 REAL PROPERTY— Deane 23 Tarring 26 REGISTRATION— Elliott (Newspaper) .... 14 Flaxman (Bir&s and Deaths) . . 43 Seager (Parliamentary) .... 47 REPORTS— Bellewe 34 Brooke 35 Choyce Cases 35 Cooke .■ . . 35 Cunningham 34 Election Petitions 33 Finlason 32 Gibbs, Seymour Will Case . . 10 Kelyng, John ....... 35 Kelynge, WiUiam 35 Reilly 29 Shower (Cases in Parliament) . 34 ROMAN DUTCH LAW— Van Leeuwen 38 ROMAN LAW— Brown's Analysis of Savigijy . . 20 Campbell 47 Harris 20 SALVAGE— Jones . . . , 14 Kay 17 SANITARY ACTS— See MAGISTERIAL LAW. PAGE SAVINGS BANKS— •Forbes 18 SEA SHORE— Hall 30 SHIPMASTERS AND SEAMEN— Kay 17 SOCIETIES— See CORPORATIONS. STAGE CARRIAGES— See MAGISTERIAL tAW. STAMP DUTIES— Copinger 40 and 45 STATUTE OF LIMITATIONS— Banning 42 STATUTES— Hardcastle 9 Marcy 26 New Zealand 18 Thomas 28 STOPPAGE IN TRANSITU— Campbell 9 Houston 32 , Kay 17 STUDENTS' BOOKS . 20—28, 39, 47 SUCCESSION DUTIES- Hanson lO SUCCESSION LAWS— Lloyd 13 SUPREME COURT OF JUDICA- TURE, Practice of— Cunningham and Mattinson . . 7 Indermaur 25 TELEGRAPHS— See MAGISTERIAL LAW. TITLE DEEDS— Copinger ........ 45 TOWNS IMPROVEMENTS— See MAGISTERIAL LAW. TRADE MARKS— Daniel .• • . . 42 TREASON^ Kelyng 35 Taswell-Langmead 21 TRIALS— Queen v. Gurney ... 32 ULTRA VIRES— Brice 16 USAGES AND CUSTOMS— Browne 19 Mayne ' 38 VOLUNTARY CONVEYANCES— May 29 WATER COURSES— Higgins 30 WILLS, CONSTRUCTION OF— . Gibbs, Report of Wallace v. Attorney-General .... 10 G, STEVENS &- HAYNES, BELL YARD, TEMPLE BAR. Just Published. In Svo. Price 2.1s., cloth, THE LAWS OF INSURANCE: dFire, Uife, Ecciirent, att^r Guarantee. EMBODYING CASES IN THE ENGLISH, SCOTCH, IRISH, AMERICAN, AND CANADIAN COURTS. By JAMES BIGGS PORTER, OF.THE INNER TEMPLE AND SOUTH EASTERN CIRCUIT, BARRISTER-AT-LAW. ''This is no mere specimen- of book makingj but it is a real attempt at stating the Law on the subject with which it deals in a practicar, useful, and correct shape We feel no difficulty in saying this is a painstakilig and'useful \vork." — Solicitors^ Journal. ' "Mr. Porter has produced a very useful and handy manual of the whole law of Insurance, except Marine; which is, we think, likely to be of considerable value." — La7V Ttjnes. ^ - In Royal I2kio, price 20s. , cloth, QUARTER SESSIONS PRACTICE, A VADE MECUM OF GENERAL PRACTICE IN APPELLATE AND : CIVIL CASES AT QUARTER SESSIONS. '■ By FREDERICK JAMES SMITH, OF THE MIDDLE TEMPLE, BARRISTER-AT-LAW, AND RECORDER OF MARGATE, ' "Mr, Smitli's book will, we are sure, be found to afford much assistance to the magistrates form- ing the Court, and to those who practise , before them." — Law Magazine. " This book will, we think obtaiii a high placia amongst the books whicH deal with this branch of the law." — Law 'journal. In one volume, Svo, price 2ij., cloth, A COMPENDIUM OF THE LAW RELATING TO EXECUTORS AND ADMINISTRATORS, with an Appendix ^f Statutes, Annotated by means of References to the Text. By W. Gregory Walker, B.A., of Lincoln's Inn, Barrister -at-Law. "We highly approve of Mr, Walker's arrange- ment The Notes are full, and as far as we have been able to ascertain, carefully and accurately compiled. . •,. . . We can commend it as bearing On its face tevidence of skilful and careful labour, and we anticipate that it will be found a very acceptable substitute for ' the ponderous tomes of the much esteemed and valued Williams." — Law Tiines. " " Mr. Walker is fortunate in his choice of a sub- ject, and the power of treating it succinctly, for the ponderous tomes of Williams, however satisfac- tory as an authority, are necessarily inconvenient for reference as well as expensive, 0,n the whole we are inclined to think the book a good and useful one." — Law journal. In royal l2mo, price 4^., cloth, A DIGEST OF THE LAW OF PRACTICE UNDER THE JUDICATURE ACTS AND RULES, AND THE CASES DECIDED IN THE CHANCERY AND COMMON LAW DIVISIONS ■ • - FROM NOVEMBER 1875, TO AUGtJST 1880. By ,W, H. HASTINGS KELKE, M.A., Barrister.-fit.Law. In royal l2mo, price 2^. dd,, cloth, THE PRESENT PRACTICE IN DISTRICT REGIS- TRIES OF THE COMMON LAW DIVISION of the high COURT OF JUSTICE. By Frank Simmons. STEVENS &> BAYNES, BELL YARD, TEMPLE BAR. 1 In 8vo, price \2s., cloth, THE LAW AND PRACTICE OF DISCOVERY IN THE SUPREME COURT OF JUSTICE. With an Appendix of Forms, Orders, &c., and an Addenda giving the Alterations under the New Rules of Practice. By clarence J. PEILE, of the Inner Temple, Barrister-at-Law. ' Mr. Peile gives in this volume an elaborate and systematic treatise on Discovery .... It will beseenthat the book IS very comprehensive, and covers the whole subject .... The whole book shows signs of care and ability There is an excellent table of multiple references to the cases cited. — Solicitors Jonntal. " Mr. Peile has done well in writing t his book. The subject is carefully yet tersely treated."— Z«w Times. In 8vo, price ds., cloth, THE NEW CONVEYANCING ACTS, including the CONVEYANCING AND LAW OF PROPERTY ACT, 1881, and the SOLICITORS' REMUNERATION ACT, 1881. With an Introduction, Notes, and Forms. By Sydney E. Williams, of Lincoln's Inn, Barrister- at-Law, Author of "Petitions in Chancery and Lunacy." In one volume, 8vo, price i8j-., cloth, THE LAW AND PRACTICE RELATING TO PETITIONS IN CHANCERY AND LUNACY, INCLUDING THE SETTLED ESTATES ACT, LANDS CLAUSES ACT, TRUSTEE ACT, WINDING- UP PETITIONS, PETITIONS RELATING TO SOLICITORS, INFANTS, Etc, Etc WITH AN APPENDIX OF FORMS AND PEBCEDENTS. By SYDNEY E. WILLIAMS, of Lincoln's Inn, Barrister-at-Law. "The book is furnished with a selection of Forms and Precedents ; the arrangement of matter seems convenient ; and we have found it easy to consult. We have not oTsserved any important omission within the scope of the Treatise, and the writer deserves the praise of having put together with some skill an unpretending work, which is at least more useful than certain larger law books we know of ." Solicitors' yoxfmal. ' Second Edition, in 8vo, price 28^-., cloth, * A SELECTION OF PRECEDENTS OF PLEADING UNDER THE JUDICATURE, ACTS IN THE COMMON LAW DIVISIONS. With Notes explanatory of the different Causes of Action and Grounds of Defence ; and an Introductory Treatise on the Present Rules and Principles of Pleading as illustrated by the various Decisions down to the Present Time.. By JOHN CUNNINGHAM, of the Middle Temple, Barrister-at-Law, and MILES WALKER MATTINSON, of Gray's Inn, Barrister-at-Law. SECOND EDITION. By miles WALKER MATTINSON, of Gray's Inn, Barrister-at-Law, and STUART CUNNINGHAM MACASKIE, of Gray's Inn, Barrister-at-Law. REVIEWS. "The notes are very pertinent and satisfactory : the introductory chapters on the present system of pleading ire excellent, and the precedents will be found very useful."— /raA Law Times. _ , „ . . , "A work which, in the compass of a single portable volume, contains a brief Treatise on the Principles >nd Rules of Pleading, and a carefully annotated body of Forms which have to a great extent gone through he entirely separate sifting processes of Chambers, Court, and Judges' Chambers, cannot fail to be a most iseful companion in the Practitioner's daily routine."— i«K/ Magazine and Review. " The vi'ork contains a treatise on the new rules of pleading which is well written, but would bear com- >ression. To most of the precedents thei'e are notes referring to the decisions which are most useful to the ileader in connection with the particular cause of action involved. We are disposed to think that this is the nost valuable portion of the work. It is extremely convenient to have some work which collects notes of his sort in connection with f\e&Sm%." —Solicitors' Journal. i STEVENS cfi HAYNES, BMLL YARD, TEMPLE BAR. Second Edition, in 8vo, price 25J., cloth. REMODELLED, MUCH ENLARGED, WITH SEVERAL NEW CHAPTERS ON "LIGHT," "SUPPORT," ETC. EMPEN'S LAW RELATING TO BUILDING, BUILDING LEASES, AND BUILDING CONTRACTS. WITH A FULL COLLECTION-OF PRECEDENTS, TOGETHER WITH THE STATUTE LAW RELATING TO BUILDING, WITH NOTES AND THE LATEST CASES UNDER THE VARIOUS SECTIONS. By ALFRED EMDEN, OF THE INNER TEMPLE, ESQ., BARRISTER- AT-LAW ; AUTHOR OF THE "PRACTICE IN WINpING-UP COMPANIES," "a COMPLETE COLLECTION OF PRACTICE STATUTES, ORDERS, AND RULES, FROM 1275 TO 1885," *'THE shareholder's LEGAL GUIDE," ETC., ETC. " This work viewed as a whole, is in all ways a standard authority on all the subjects treated, and it is in reality a small Law Library on building subjects, ingeniously and most lucidly compressed into a single volume." — Building World, ' "The present treatise of Mr. Emden deals with the subject in an exhaustive manner, which leaves nothing to be desired The book contains a number of forms and precedents for building leases and agreements which are not to be found in the ordinary collection of precedents." — Tke Titnes. *' It is obvious that the number of persons interested in the subject of building is no small one. To supply the wants of this class by providing^ a treatise devoted exclusively to the law of building and kindred rnatters has been accordingly the main object of Mr. Emden's labgurs. We are able on the whdle to say with confidence that his efforts deserve reward. His arrangement of the subject is clear and perspicuous. . . •. . It may be said without hesitation that they have been dealt with in a manner which merits hi^h commendation." — Lofw Times. "This'is a careful digest of a branch of the law which, so far as we know, has iiot yet been fully treated The book seems to us a very complete and satisfactory manual, alike for the lawyer as for the architect and the builder." — Solicitors' Journal. " Mr, Emden has obviously given time and labour to his task, and therefore will save time and labour to those who happen to be occupied in the same field of enquiry." — Law Journal. ' 'I In this work Mr. Emden has collected and systematically arranged a mass of legal lore relating to Building Leases, Building Contracts^ and generally to the improvement of land by buildings and their construction. The lawyer, the architect, and the contractor will here find brought into a focus and readily available, information which would, but for this convenient volume, have to be sought for in various quarters.' — Law Magazine. "It may safely be recommended as a practical text -book and guide to all people whose fortune or misfortune it is to be interested in the construction of.buildings and other wot-ks." — Saturday Revie-w. " In such cases it is serviceable to possess a book like Mr. Emden's on ' the Law of Building Leases, Building Contracts, and Buildings.' The subjects, it js needless to say, are difficult, but the exposition of them is sufficiently plain to be comprehended by every intelligent layman. Mr. Emden's book is incom- parably the best among those which are professedly intended ^r the use of architects, buildera, age^nts, as well as lawyers throughout the pages there is not a paragraph to be discovered which is not perfectly clear." — The Architect. • , , ' ■ ;■ "Mr. Emden's very useful handbook, which supplies a desideratum long felt by lawyers,- architects, and others engaged in preparing leases, contracts, and in building operations generally. The work is well printed, and marginal references are given throughout." — Building News. "To supply this want is the writer's object in publishing this work, and we have no hesitation fin expressing our opinion that it will be found valuable by several distinct classes 'of persons .... it 'seems to us a good and useful book, and we recommend the purchase of it without hesitation. "-^Tl^e Builder. " We are aware of no other work which deals exclusively with the lawrelating to buildings and contracts to build. Mr. Emden writes in an unusually clear style for the compiler of a law book, and has not failed to note the latest decisions in the law courts. His list of precedents is very full," — The Field. " From the point of view of practical utility the work cannot fail to be of the greatest use to all who require a little law in the course of their building operations. They will find both a sound arrangement and a clear sensible style, and by perusing it- with ordinary attention many matters of which they were before doubtful will become quite comprehensible. "-r-CzV^ Press, STEVENS 6^ HAYNES, BELL YARD, TEMPLE BAR. In royal 8vo, 1,100 pages, price 52^. (>d., cloth. THE LAW OF THE DOMESTIC RELATIONS, INCLUDING HUSBAND AND WIFE : PARENT AND CHILD : GUARDIAN AND WARD : INFANTS : AND MASTER AND SERVANT. By WILLIAM PINDER EVERSLEY, B.C.L., M.A. OF THE INNER TEMPLE, BARRISTER-AT-LAW. ' It is essentially readable and interesting, and ought to take a higK place among .text books. . . . We say, without hesitation, that this is a learnqd 'book, written in a peculiarly fascinating style, having regard to the ijature of the subject. ... It can only be said, therefore, that the book is deserving of success upon the merits ; and that the attempt to combine the treatment of three branches of the la\v which have hitherto been unnaturally divided shows, in itself, a comprehensive grasp of principle." — Law Times. '"This is an admirable endeavour to treat in one volume a series of topics which may well be treated to- gether, but which have not hitherto formes. 6d., cloth, THE CUSTOMS. AND INLAND REVENUE ACTS, 1880 and 1881 (43 Vict. Cap. 14, and 44 Vict; Cap. 12.), So far as they Relate to the Probate, Legacy, and Succession Duties, and the Duties on Accounts. With an Introduction and Notes. By Alfred Hanson, Esq., Comp- troller of Legacy and Succession Duties. *,* This forms a Supplement to the Third Edition of the Probate, Legacy, and Succession Duty Acts, by the same Author. Third Edition, in 8vo, 1876, price 25^., cloth, THE ACTS RELATING TO PROBATE, LEGACY, AND SUCCESSION DUTIES. Comprising the 36 Geo. IIL c. 52 ; 45 Geo. IIL c. 28; 5S Geo. III. c. 184; and 16 & 17 Vict. c. 51 ; with an Introduction, Copious Notes, and References to all the Decided Cases in England, Scotland, and Ireland. An Appendix of Statutes, Tables, and a full Index. By Alfred Hanson, of the Middle Temple, Esq., Barrister-at-Law, Comptroller of Legacy and Succession Duties. Third Edition. Incorporating the Cases to Michaelmas Sittings, 1876. " It is the only complete book upon a subject of great importance. "Mr. Hanson is peculiarly qualified to be the adviser at such a time. Hence a volume without a rival " — Laui Times. " His book is in itself a most useful one ; its author kndws every in and out of the subject, aiid has presented the whole in a form easily and readily handled, and with good arrangement and clear exposition." — Solicitors' Journal. In royal 8vo, 1877, price lOf., cloth, LES HOSPICES DE PARIS ET DE LONDRES. THE CASE OF LORD HENRY SEYMOUR'S WILL (WALLACE v: THE ATTORNEY-GENERAL). Reported by FREDERICK WAYMOUTH GIBBS, C.B., Barrister-at-Law, LATE FELLOW OF TRINITY COLLEGE, CAMBRIDGE. In preparation, and to be published shortly, CORNER'S CROWN PRACTICE: Being the Practice of the Crown Side' of the Queen's Bench Division of the High Court of Justice; with an Appendix of Rules, Forms, Scale of Costs and Allowances, &c. SECOND EDITION. By FREDERICK H. SHORT, of the Crown Office, and M. D. CHALMERS, of the Inner Temple, Barrister-at-Law, Author of "Digest of the Law of Bills of Exchange." In 8vo, 1867, price \(ss., cloth, CHARITABLE TRUSTS ACTS, 1853, 1855, 1860; THE CHARITY COMMISSIONERS JURISDICTION ACT, 1862; THE ROMAN CATHOLIC CHARITIES ACTS: Together with a Collection of Statutes relatii^ to or affecting Charities, including the Mortmain Acts, Notes of Cases from 1853 to the present time, Forms of Decla- rations of Trust, Conditions of Sale, and Conveyance of Charity l!and, and a very copious Index. Second Edition. By HUGH COOKE and R. G. HARWOOD, of the Charity Commission. "Charities are so numerous, so many persons are directly or indirectly interested in them, they are so much abused, and there is such a growing desire to rectify those abuses and to call in the aid of the. conimissioners for a more beneficial application of their funds, that we are not surprised to receive a second edition of a collection of all the statutes that regulate them, admirably annotated by two such competent editors as Messrs. Cooke and Harwood, whose official experience peculiarly qualifies them for the task." — Law Times. STEVENS 6" HAYNES, BELL YARD, TEMPLE BAR. 11 yust Published, in i Volume, medium 8vo, iifio pp., price 35;. cloth. EMDEN'S COMPLETE COLLECTION OF PRACTICE STATUTES, ORDERS AND RULES. BEING A SELECTION OF SUCH PRACTICAL PARTS OF ALL STATUTES, ORDERS AND RULES, AS ARE NOW IN FORCE, AND RELATE TO THE PRACTICE AND PROCEDURE OF THE SUPREME COURT. From I275 to I885. WITH TABULATED SUMMARIES OF THE LEADING CASES AND ANALYTICAL CROSS-REFERENCES. By ALFRED EMDEN, of the ikmer tempi-e, esq., baeristeb-at-law ; author of "the practice in windimg-up companies;" *'the law relating to building, building leases, and contracts;" "the shareholder's legal guide," etc AND E. R. PEARCE-EDGCUMBE, or likcolm's ins, esq., bakristek-at-law ; author of "the bills of sale acts, 1878-82;' AND joint author OK " THE AGRICULTURAL HOLDINGS ACT, 1883." BXTEAOT PBOM PKEFAOE. The object of thk woric is to bring together in one volume all such practical parts of any statutes, atdm and roles, as are iKm in force, and relate to the practice and wocedure of the Supreme Court. ifle work was origiiially prepared for the press before the issue of the Rules of Court, 18S3, when Mr. Emden had fonned a collection of aU the orders, rules, or regulauons_ of eveiy description then m force and reSdne to the oractice in either the Chancery or Queen's Bench Division. Nearly the whole of this heavy wStWas covered by the New Rules, which necessitated reciting throughout. ■rL. difficulty in the way of a work of this description is the smaU space available m one volume for so much matter, anS this has been overcome, first, byelinunatingaU suet parts of the Acts or RiUe» as a« S«of S^Sal importance, and secondly, by mserting the leadmg rases m a fimn which »ves the gist of SS asT^^waMt U thought, be at the same tune qmte sufficient to guide the mactitujner to the ^zJt'JZ^A^Ji,'.^ J,, reoiS^ This plan permits of the insertion of a lai^er number of cases than ^"'^^^^^t^M^'^ cas^lSive fcn so printed as to leave «i&ent space to enabk the S^SS^TS.^ STci^ ci^^time to time, "ft^ r^eals during the last few years have b^ S^SSS^^e made the work of searching through the Statutes very heavy, as, in many cases, after Sn^W dS^SS^ such investigation,*the wEole of particular sections have been found to be repe^ „oA has been to arrange the Statutes, as fer as poMible^ chronologicaUy ; but wh«- TJ^^l^WSEiutSwhich wholly relate to the sulject of the first in date, they have generaUy C" "^J^m^i^if^rA Preference to each Xct is also placed in its chronological order, so been_placed f>°«="'?"'y?^™. ^ particular Act U printed. The thick type shoulder notes refer to the ,totttmayat^cel^«^w^«^^^^^,„ WP« tothe Statutes on the particular page. No chronological order, and 'f.«^*^?^°f\5l7oidin2 the nec^y of reprint ng portions of the Acts, can be arrangement, >»^*;* 'I^ "feJ^VtottL, iXa^^eheSi« Ii5^^ i* antidpated that the arrangement. KEVTEWS. „ ™ jj — , ^^■h\r-'h \l consists contains much of extreme value to the practitioner. He vnll "The 1300 od-l^fSf J2Sf„^ Uw rS^g to practice, arranged in chronological order, and the there fiml S",?""^,^, „ J,l31SSs whiihW beeSusued und«luch Acts.of Parliament as the Con- feet that all the sets of "Jf ? ^,^^i*^kar and convenient form. In addition to thU the contents are great recommendation in » *«H .^'J^^^^e thiXany fecial observer wfll come to the conduaon "Noonecaiiden5;thatthe.deaisgood,^we^mmKany^j^ ^^^^^^ ^^^ ^^ ^^ Oat the work is '^''^'y,5?^f--w^^l and handy for reference, and it will form an exceUent work ^^^''T^^^t'^f tf l^a^ rfl-nTbarristL and solicitors just starting."-^.«, S.u^.^. 12 STEVENS dr' HAVNES, BELL YARD, TEMPLE BAR. HIGGINS'S DIGEST OF PATENT CASES. Price 2is., A DIGEST OF THE REPORTED CASES RELATING TO THE LAW AND PRACTICE OF LETTERS PATENT FOR INVENTIONS, Decided from the passing of the Statute of Monopolies , to the present time ; Together with an Appendix, giving the Reported Cases from June, 1875, toMarch, 1880, as also some Cases not reported elsewhere. By clement HIGGINS, M.A., F.C.S., OF THE INNER TEMPLE, BARRISTER -AT- LAW. Mr. Higgins's work will be useful as a work of reference. Upwards of 700 cases are digested : and. besides a table of contents, there is a full index to the subjefct-'matter ; and that index, which greatly enhances the value of .the book, jipusthaye cost the author much time, labour, and thought."— Z aw youmaL *'*Thi5isessentially,'_saysW[r.Higgins in his preface, 'a book of reference.* It remains to be added whether the compilation is reliable and exha,ustive. It is only fair to ^ay that we think it is ; and we will add, that the arrangement of subject-matter (chronological under each heading, the date, and double or evpn treble references being appended to every decision) and the neat and carefully-executed index (which is decidedly above the average) are such as no reader of 'essentially a book of reference' pould quarrel with." — Solicitors' youmal. , "On the whole, Mr. Higgins's workihas been well accomplished. It has ably fulfilled its object by supplying a reliable and authentic summary of the reported patent law cases decided in English courts of law and equity, while presenting a complete history of legal doctrine ,on the points of law and practice relating to its subject." — Irish' Lww Times. ^ " Mr. Higgins.has, with, wonderful and accurate research, produced a work which is much needed, since we have no collection of patent cases which does not terminate years ago. We consider, too, if an inventor furnishes himself with this Digest and a little treatise on the law of patents, he will be able to be as much his own patent lawyer as it is safe to h^^—ScienUfic and Z^iterar^ Review. "_Mr. Higgins's object has be^n to supply a feliable and exhaustive summary* of the reported patent cases decided in English courts of law and equity, and this object he appears to haye attained. The classifica- tion is excellent, being, as Mr, Hi^gins very truly remarks, that which naturally suggests itself from the practical working of patent law rights. The lucid style in which Mr. Higgins has written his Digest will 'hot fail to recommend it to all who may consult his book ; and the very copious index, together with the table of cases, will render the work especially valuable to professional men." — Mining- youmal. "The appearance of Mr. Higgins's l)igest is exceedirigly opportune. The plan of the work is definite and simple. We consider that Mr. Higgins, in the production of this work, has met a long-felt demand. Not merely the legal profession and patent agents^ but patentees, actual or intending inventors, manufac- turers, and their scientific advisers will find the Digest an invaluable book of reference. — CAemzcai Jvews. "The arrangement and condensation of the main principles and facts of the cases here digested rendet the work invaluable in the way orreference." — Standard. " The work constitutes a step in the right direction, and it is likely to prove of much ser\^ae as a guide, a by no means immaterial point in its favour being that it includes a number of comparatively recent cases." — Engineer. " From these 4ecisions the state of the law upon any point connected with patents may be deduced In fine, we must pronounce the book as invaluable to all whom it may concern. ' — Quarterly journal of Science. In SvOj price 6j., sewed, A DIGEST OF THE REPORTED CASES RELATING TO THE LAW AND PRACTICE OF LETTERS PATENT FOR INVENTIONS DECIDED BETWEEN JUNE, 1875, AND MARCH, 1880: TOGETHER WITH SOME UNREPORTED CASES. FOKMING ' AN APPENDIX TO DIGEST OF PATENT CASES. By clement HIGGINS, BARRISTER- AT-LAW, STEl^ENS &- HAYNES, BELL YARD, TEMPLE BAR. 13 In 8vo, price 25J., cloth, THE LAW OF COMPENSATION FOR LANDS, HOUSES, &c. UNDER THE LANDS CLAUSES, RAILWAY CLAUSES CONSOLIDATION AND METROPOLITAN ACTS, THE ARTIZANS AND LABOURERS' DWELLINGS IMPROVEMENT ACT, 1875. WITH A FULL COLLECTION OF FORMS AND PRECEDENTS. FIFTH EDITION, Enlarged, with Additional Forms, including Precedents of Bills of Costs. By eyre LLOYD, OF THE INNER TEMPLE, BAERISTER-AT-LAW. r The chapter on tJie liabilities of corporations ex Aei\\Qto for fraud and oiher torts committed by their ageHts within ike region of their anihot ity seems to us remarkably well done, revie^ving as it does all ike latest and somewhat contradictory decisions on the point. . . . On the whole, uoe consider Mr. Brice s exhaustive work a valuable addition to the literature of the profession." — Saturday IReview. "The doctrine which forms the subject of Mr. Seward Erica's elaborate and exhaustive work is a remarkable instance of rapid growth in modern Jurisprudence. Hi^ book, indeed, now almost con- stitutes a Digest of the Law of Great Britain and her Colonies and of the United States on the Law of Corporations — a subject vast enough at home, but even more so beyond thte Atlantic, where Cor- porations are so numerous and powerful. Mr. Seward Brice relates that he has embodied a refer- ence in the present edition to about 1600 neW' cases, and expresses the hope that he has at least referred to "^the chief cases.' We should think there can be few, even of the Forei|;n Judgments and Dicta, which have not found their way into his pages-_ The question what is and what is not Ultra Vires is one of very great importance in commercial countries like Great Britain and the United States. Mr. Seward Brice has done a great service to the cause of Comparative Jurisprudence by his new recension of what was from the first a unique text- book on the Law of Corporations. He has gone far towards effecting a Digest of that Law in its relation to the Doctrine of Ultra Vires, and the second edition of his niost careful and comprehen- sive work may be commended with equal confidence to the English, the American, and the Colonial Practitioner, as well as to the scientific Jdrist."— Law Magazine and Reoiew. " It is the Law of Corporations that Mr. Brice treats of (and treats of more fully, and at the same time more scientifically, than any work with which we are acquainted), not the law of principal and agent ; and Mr. Brice does not do his book justice by giving it so vague a title."' — Law journal. "A guideof very great value. Much information on a difficult and unattractive subject^ has been collected and arranged in a manner which will be of great assistance to the seeker after the law on a point involving the powers of a company."— Xaw Journal. (Review of First Edition.) 'On this doctrine, first introduced in the Common Law Courts in East Anglian Railivay Co. v. Eastern Counties Railway Co., Brice on Ultra Vires may be read with advantage." — Judgment of Lord Justice Bramwell, in the Case ofE^ershed v. L. &- iV. W, Ry. Co. (L. R., 3 Q. B. Div. 141.) STEVENS df" HAYNES, BELL YARD, TEMPLE BAR. 17 Fourth Edition, in royal 8vo, price y.s. cloth, BUCKLEY m THE COMPANIES ACTS. FOURTH EDITION BY THE AUTHOR. THE LAW AND PRACTICE UNDER THE COMPANIES ACTS, 1862 TO 1880, THE JOINT STOCK COMPANIES ARRANGEMENT ACT, 1870, AND THE LIFE ASSURANCE COMPANIES ACTS, 1870 TO 1872. gl %xmix&t 0rt tkc gJab) sst Joint ^t«fe ffiamimnifa. Containing the Statutes, with the Rules, Orders, and Forms, regulating Proceedings in the Qiancery Division of the High Court of Justice. By H. Burton Buckley, M.A., of Lincoln's Inn, Barrister-at-Law, late Fellow of Christ's College, Cambridge. " We have no doubt that the present edition of this useful and thorough work will meet with as much acceptance as its predecessor's have." — Scottish Jourttal of yurisprudence. "The mere arrangement of the leading cases under the Successive sections of the Acts, and the short explanation of their effect, are of great use in saving much valuable time, which would be otherwise spent in searching the different digests ; but the careful manner in which Mr. Buckley has annotated the Acts, and placed the cases referred to under distinct headings, renders his work particularly useful to all who are required to advise in the complications in which the shareholders and creditors of companies frequently iind themselves involved The Index, always an important part of a law book, is full and well arranged." — Scottish Joitrtial of Jurisprtcdettce. In two volumes, royal 8vo, los. cloth, THE LAW RELATING TO SHIPMASTERS AND SEAMEN. THEIR APPOINTMENT, DUTIES, POWERS, RIGHTS, LIABILITIES, AND REMEDIES. By JOSEPH KAY, Esq., M.A., Q.C., OF TRIN. COLL. CAMBRIDGE, AND OF THE NORTHERN CIRCUIT ; SOLICITOR-GENERAL OF THE COUNTY PALATINE OF DURHAM; ONE OF THE JUDGES OF THE COURT OF KECORD FOR THE HUNDRED OF SALFORD ; AND AUTHOR OF 'the SOCIAL CONDITION AND EDUCATION OF THE PEOPLE IN ENGLAND AND EUROPE." REVIEWS OF THE WORK. From tlie LIVEBPOOL JOUBNAL OF COMMEBCB. " 'The law relating to Shipmasters and Seamen ' —such is the title of a voluminous and important work which has just been issued by Messrs. Stevens and Haynes, the eminent law publishers, of London. The author is Mr. Joseph Kay, Q.C., and while treatinggenerally of the law relating , to shipmasters and seamen, he refers more particularly to their ap- pointment, duties, rights, liabilities, and remedies. It consists of two large volumes, the text occupying nearly twelve hundred pages, and the value of the work being enhanced by copious appendices and index, and by the quotation of a mass of authori- ties. . . . Tke "work must be an invaluable one to the shipowner, shipmaster, or consul at a foreign port. The language is clear and simple, while the legal standing of the author is a sufficient guarantee that he writes with the requisite authority, and that the cases quoted by him are decisive as regards the points on which he touches." From the LAW JOUENAL. "The author tells us that for ten years he has been engaged upon it Two large volumes containing iiBi pages of text, 8i pages °f "W^n- dices, g8 pages of index, and upwards of 1 800 cited, cases, Attest the magnitude of the" work designed and accomplished by Mr. Kay. "Mr. I^y sa^S that he has 'endeavoured to compile a guide and reference book for masters, ship agents, and consuls.' He has been so_ modest as not to add lawyers to the list of his pupils ; but hii ■work will, we think, he welcomed by lawyers who have to do with shipping transactions, almost as cordially as it undoubtedly -will be by those who occupy their business in the great waters." 18 STEVENS &■ HAYNES, BELL YARD, TEMPLE BAR. In demy l2mo, price (ss., cloth, THE LAW OF SAVINGS BANKS SINCE 1878; With a Digest of Decisions made by the Chief Registrar and Assistant Registrars of Friendly Societies from 1878 to 1882, being a Supplement to the Law relating to ' Trustee and Post Office Savings Banks. By U. a. FORBES, of LipcolnJs Inn, Barrister-at-Law. *»* The complete work can be had, price \os. (id., cloth. In 8vo, price 15^., cloth, THE LAW AND PRACTICE RELATING TO THE ADMINISTRATION OF DEGEASED PERSONS BY THE CHANCERY DIVISION OF THE HIGH COURT OF JUSTICE; WITH AN ASDEIfSA giving the alterations effected by the ITEW BVL£S of 1883, And an APPENDIX OF ORDERS AND FORMS, Annotated by References to the Text. By W. GREGORY WALKER and EDGAR J. ELGOOD, OF Lincoln's' INN. barristers-at-law. " All those having the conduct of administration actions will find this work of great assistance ; it covers the whole ground of the law and practice from the institution of proceedings to the final wind up."— Z-aTO Tmies. 5 " In this volume the most ,-importani branch of the administrative business of the Chancery Divi- sion is treated with conciseness and care. Judging from the admirable clearness of expressip^n which characterises the entire work,' and the labour SVhich has evidently been bestowed on every detail, we 'do ^ not think that a literary executorship could have devolved upon a more able and conscientious repre* sentative .... Useful chapters'are introciliced in their appropriate places, dealing with the ^ Parties to administration actions,' ' The proofs of claims in Chambers,' and * The cost of adminis- tration actions.' To the last -mentioned chapter we gladly accord special praise, as a clear and succinct surtitnary of the law, from which so far as we have tested it, no proposition of any importance has been omitted .... An elaborately constructed table of cases, with references in separate columns to all the reports, and a fairly good index much increase; the utility of the work." — Solicitors' Jonmat. - ^ ■ ■' " This is a book which will supply a want which has long been felt .... As a practical manual for the counsel in practice, it will be found ex- tremely usteful. It is ^ full; fairly ccrtcise, clear, and exact. , The index is good." — Laiv Journal. 2 vols. 4to, 1876 — 77, 5/. 5j. calf, THE PRACTICAL STATUTES OF NEW ZEALAND. WITH NOTES AND INDEx! Edited by G. B. BARTON, of the Middle Temple, Barrister-at-Law. In royal 8vo, price 30J., half calf, THE CONSTITUTION OF CANADA. THE BRITISH NORTH AMERICA ACT, 1867 ; Its Interpretation, Gathered from the Decisions of Courts, the Dicta of Judges, and the Opinions op Statesmen and others ; To which is added the Quebec Resolutions of 1864, and the Constitution of the United States. By JOSEPH DOUTRE, Q.C., of the Canadian Bar. STEVENS '&- -HAYNES, BELL YARD, TEMPLE BAR. 19 In one thick volume, 8vo, 1875, price 25^., cloth, THE PRINCIPLES OF THE LAW OF RATING OF HEREDITAMENTS IN THE OCCUPATION OF COMPANIES. By J. H. BALFOUR BROWNE, ND REGISTRAR TO THE RAILWAY COMMISSIONERS. that such a work is much needed, and we are sure that all those who are interested in, or have to do with, public rating, will find it of great service; Much credit is therefore due to Mr. Browne for his able treatise — a work' which his experience as Registrar of the Railway Commission peculiarly qualified him to undertake," — Law Magazine. OF THE MIDDLE TEMPLE, BARRISTER-AT-LAW, A "Thetables and specimen valuations which are printed in an appendix to this volume will be of great service to the parish authorities, and to the legal practitioners who^ may have to deal with the rating of those properties which are in the occupa- tion of Companies, and we congratulate Mr. Browne on the production of a clear and concise book of the system of Company Rating. There is no doubt In 8vo, 1875, price 7^. 6i/., cloth, THE LAW OF USAGES & CUSTOMS : % IrEctkal lEfaj iratt. By J. H. BALFOUR BROWNE, OF THE MIDDLE TEMPLE, BAREISTER-AT-LAW, AND REGISTRAR TO THE RAILWAY COMMISSIONERS. "We look Upon this treatise as a valuable addition to works written on the Science of Law." — Canada Laiv Jmtmal. "As a tract upon a very troublesome department of Law it is admirable — the principles laid down are sound, the illustrations are well chosen, and the decisions and dicta are harmonised so far as possible and distinguished when necessary." — Irish Laixi Times. "As a book of reference we know of none so comprehensive dealing with this particular branch oi Common Law. . '. . . In this way the book is invaluable, to the practitioner." — Law Magazine. In one volume, 8vo, 1875, price iSj., cloth, THE PRACTICE BEFORE THE RAILWAY COMMISSIONERS UNDER THE REGULATION OF RAILWAY ACTS, 1873 & 1874; With the Amended General Orders of the Commissioners, Schedule of Forms, and Table of Fees : together with the Law- of Undue Preference, the Law of the Jurisdiction of the Railway Commissioners, Notes of their Decisions and Orders, Precedents of Forms of Applications, Answers and Replies, and Appendices of Statutes and Cases. By' J. H. BALFOUR BROWNE, OF THE MIDDLE TEMPLE, EAERISTER-AT-LAW, AND REGISTRAR TO THE RAILWAY COMMISSIONERS. " Mr. Browne's book is handy and convenient, in form, and well arranged for the purpose of refer- ence : its treatment of the subject is fully and carefully worked out : it is, so far as we have been able to test it, accurate and trustworthy. It is the work of a man of capable le^al attainments, and by oiBcial position "intimate with his subject; and we therefore think that it cannot fail to meet a rtal want and to prove of service to the legal profession and the ^yiaXv:."— Law Magazine. Tn 8vo, 1876, price Is.iid., cloth, ON THE COMPULSORY PURCHASE OF THE UNDERTAKINGS OF COMPANIES BY CORPORATIONS, And the Practice in Relation to the Passage of Bills for Compulsory Purchase through Parliament. By T. H, Balfour Browne, of the Middle Temple, Barrister-at-Law ; Author of " The Law of Rating," " The Law of Usages and Customs, &c., &c. "This is a work of considerable importance to all Municipal Corporations, and it is hardly too much to say that every member of these bodies should have a copy by him for constant reference. Probablj; at no very distant date the property of all the existing gas and water companies will pass und.er municipal control, and therefore it is exceedingly desirable that the principles and conditions under which such transfers ought to be made should be clearly under- stood. This task is made easy by the present volume. The stimulus for the publication of such a work was given by the action of the Parliamentary Committee which last session passed the preamble of the ' Stockton and Middlesborough Corporations Water Bill, 1876.' The volume accordingly con- tains a full report of the case as it was presented both by the promoters and opponents, and as this was the first time in which the principle of com- pulsory purchase was definitely recognised, there can be no doubt that it will long be regarded as a leading case. As a matter of course, many inci- dental points of interest arose during the progress of the case. Thus, besides the main question of compulsory purchase, and the question as to whether there was or was not any precedent for the Bill, the questions of water compensations, of appeals from one Committee to another, and other kindred sub- jects were discussed. These are all treated at length by the Author in the body of the work, which is thus a complete legal compendium on the large subject with which it so ably deals. 20 STEVENS b' HAYNES, BELL YARD, TEMPLE BAR. In 8vo, 1878, price 6j., cloth, THE LAW RELATING TO CHARITIES, ESPECIALLY WITH REFERENCE TO THE VALIDITY AND CONSTRUCTION OF CHARITABLE BEQUESTS AND CONVEYANCES. By FERDINAND M. WHITEFORD, of Lincoln's Jnn, Barrister-at-Law. "The Law relating to* Charities by F. M. Whiteford contains a brief but clear exposition of the lawrelating to a class of bequests in which the intentions of donors are often frustrated by un- acquaintance with the statutory provisions on the subject. Decisions in reported cases occupy a large portion of the text, together with the ex- planations pertinent to them. T^e general tenor of Mr. Whitfeford's work is that of a -digest of Cases rather than a treatise, a feature, however^ which will not diminish its usefulness for purposes of reference." — Law Magazine and Review. In 8vo, 1872, price 7j. 6^/., cloth, AN EPITOME AND ANALYSIS OF SAYIGNY'S TREATISE ON OBLIGATIONS IN ROMAN LAI. By ARCHIBALD BROWN, M.A. ;, EDIN. AND OXON., AND B.C.L'. OXON., OF THE MIDDLE TEMPLE, BARRISTsfe^T-LAW. " Mr. Archibald Brown deserves the thanks ■ of all interested in the science of Law, whether as a study or d practice, for his edition of Herr von Savigny's great work on ' Obligations.' Mr. Brown has undertaken a double task — ^Ca& translation of his author, and the analysis of his author's matter. That he has succeeded in reducing the bulk of the original will be seen at a glance ; the French translation consisting of two volumes, with some five hundred pages apiece, as compared with Mr. Brown's thin volume of a hundred and fifty pages. At the same time the-, pith of Von, Savigny's matter seems to be very succSessfully pre- served, nothing which might be usemi to the English reader being apparently omitted. '* The new edition of Savigny will, we hope, be extensively read and referred to by English lawyers. If it is not, it will not be the fault of the trfinslator and epitomiser. Far less will it be the fault of Savigny himself, whose clear definitions and accu- rate tests are of'great use to the legal practitioner," — Law yournal. I THE ELEMENTS OF ROMAN LAW, In 216 pages 8vo, 1875, price lOJ., cjoth. A CONCISE DIGEST OF THE INSTITUTES OF GAIUS AND JUSTINIAN. With copious References arranged in Parallel Columns, also Chronological and Analytical Tables, Lists of Laws, &'c, Sfc. Primarily designed for the Use of Students preparing for Examination at Oxford, Cambridge, and the Inns of Court. By SEYMOUR R HARRIS, B.C.L., M.A., OF WORCESTER COLLEGE, OXFORD, AND THE INNER TEMPLE, BARR1STER-AT>LAW, AUTHOR OF " UNIVERSITIES AND LEGAL EDUCATION." "Mr. Harrises digest otfght' to have very great success among law students both in the Inns of Court .and the Universities. His book gives evidence of praiseworthy accuracy and laboripus condensation. " — Law Journal. " This book contains a summary in English of the elements of Soman Law as contained in the works of Gaius and jfustinian, and is so arranged that the reader can at once see what are the opinions of either of these two writers on each point. From the veiy exact and accurate references to titles and sections given he can , at once refer to the original writers. The concise manner in which Mr. Harris has arranged his digest will render it most useful, not only to the students for whom it was originally written, but also to those persons who, though they have not the time to wade through the larger treatises of Poste, Sanders, Ortolan, and others, yet desire, to obtain some knowledge of Roman Law." — Oxford and Cambridge Unijergraduates' Journal. "Mr. Harris deserves Jhe credit of having produced an epitonie which will be of service to those numerous students who have no time or sufficient ability to analyse the Institutes for themselves." — Law Times. WORKS FOR LAW STUDENTS. 21 In Crown 8vo, price 3J. ; or Interleaved for Notes, price 4J. CONTRACT LAW. QUESTIONS ON THE LAW OF CONTRACTS. With Notes to the Answers. Fotinded on "Anson," " Chitty," and "Pollock." By Philip Foster Aldred, D.C.L., Hertford College and Gray's Inn ; late Examiner for the University of Oxford. "This appears to us a very admirable selection of questions, comparing favourably with the average run of those set in examinations, and useful for the purpose of testing progress." — Law Journal. For the Preliminary Examinations before Entering into Articles of Clerkship to Solicitors under the Solicitors Act, 1877. In a handsome 4to volume, with Map of the World, price las., cloth, THE STUDENTS' REMINDER & PUPILS' HELP IN PREPARING FOR A PUBLIC EXAMINATION. By THOMAS MARSH, PRIVATE TUTOR, AUTHOR OF AN "ENGLISH GRAMMAR," &C. it y^g ■yrelcome this compendium with great pleasure as being exactly what is wanted in this age of competitive examinations. It is evidently the work of a master hand, and could only be compiled by one thoroughly experienced^ in the work of teaching. Mr. Marsh ,has summarised and analysed the subjects required for the preliminary examinations of law students, as well as for the University and Civil Service examinations. He has paid special attention to mathematics, but the compendiufti also includes ancient and modem languages, geography^ dictation, &c. It was a happy idea to make it quarto size, and the type and printing are clear and legible." — Irisk Law Tunes. Now ready, Second Edition, in 8vo, price 2ij., cloth, ENGLISH CONSTITUTIONAL HISTORY. FROM THE TEUTONIC INVASION TO THE PRESENT TIME. ^Pisistteb as a 'aCext-haoh f0r ^teifitts anJ) others. By T. p. TASWELL-LANGMEAD, B.C.L., OF LINCOLN'S INN, BAKHISTER-AT-LAW, LATE TUTOR ON CONSTITUTIONAL LAW AND LEGAL HISTORY TO THE FOUR INNS OF COURT, AND FORMERLY VINERIAN SCHOLAR IN THE UNIVERSITY OF OXFORD. Second and Enlarged Edition, revised throughout, and in many parts rewritten. " The work before us it would be hardly possible to praise too highly. In style, arrangement, clearness, and size, it would be difficult to find anything better on the real history of England, the history of Us constitutional growth as a complete story, than this volume."— ^of/i;» ( y.i'.) i!if«r3>3' PFoWrf. _ "As it now stands, we sBould find it hard to name a better text-book on English Constitutional History." — Solicitors' Joumal. . . j j i .. "That the greatest care and labour have been bestowed upon it is apparent in every page, and we doubt not that it will become a standard work not likely soon to die ovx.."— Oxford and Cambridge Under- eraditate!^ youmal. . , , . , " As a text-book for the lecturer it is most valuable. It does not always observe a strict chronological sequence, but brings together all that has to be said on a given subject at the point when that subject happens to possess a special \m.fOT\z.nix."— Contemporary Review.^ , , ^ ,. , ^ . . . "Mr Taswell-Langmead's compendium of the rise and development of the English Constitution hfs evidently supplied a want The present Edition is greatly improved. ... We have no hesitation in saying that it is a thoroughly good and useful ^oxk."— Spectator. ., , , . , r ^'We think Mr. Taswell-Langmead may be congratulated upon having compiled an elementary work of conspicuous merit." — Pall Malt Gazette. , ... ,, . .1 j ■. r " For students of history we do not know any work which we could more thoroughly recommend. —Lam " It is a safe careful, praiseworthy digest and manual of all constitutional history and law.''— Gloie. "The volume on English Constitutional History, by Mr. Taswell-Langmead, is exactly what such a tistory should be." — Standard. . „ t, j 1 . 1 " r iv / "As a text-book for students, we regard it as an exceptionally able and complete work. —Law Journal. " Mr. Taswell-Langmead has thoroughly grasped the bearings of his subject. .It is, however, in dealing with that chief subject of constitutional history— parliamentary government— that the work exhibits its great superiority over its rivals." — Academy. 22 WORKS FOR LAW STUDENTS. Seventh Edition, in 8vo, price 25^., cloth, THE PRINCIPLES OF EQUITY. INTENDED FOR THE USE OF STUDENTS AND THE PROFESSION. By. EDMUND H. T. SNELL, OF THE MIDDLE TEMPLE, BARRISTEE-AT-LAW. SEVENTH EDITION. ' TO WHICH IS ADDED AN EPITOME OF THE EQUITY PRACTICE. FOURTH EDITION. By ARCHIBALD BROWN, M.A., Edin. & OxoN., & B.C.L. Oxon., of the middle temple, barrister-at-law ; author of "^a new law dictionary," "an analysis of savigny on obligations," and the "law of fixtures." REVIEWS. " On the whole we are convinced that the Sixth Edition of Snell's Equity is destined to be as highly ■ thought of as its predecessors, as it is, in our opinion, out and out the best work on the subject with which it deals."— Gz'^jom'j Laiv Notes. " Rarely has a text-book attained more complete and rapid success than Snell's * Principles of Equity/ of which a fifth editionjias just been issued." — Law Times. " Seldom does it happen that a work secures so great a reputation as this book, and to Mr, Brown is due the credit of keeping it up with the times It is certainly the most comprehensive as well as the best work on Equity Jurisprudence in existence." — Oxford and Cambridge Undergraduates' Journal. "The changes introduced by the Judicature. Acts have been well and fully explained by the present edition of Mr. SnelPs treatise, and everything necessary in the way of revision has been conscientiously accomplished.. Weperceive the -fruitful impress of the 'amending hand' in every page; the results of the decisions under the Hew system have been carefully explained, and engrafted into the original text ; and in a word, Snell's work, as edited by Mr. Brown, has proved the fallacy of Benthani's description of Equity as ' that capricious and inconsistent mistress of our fortunes, whose features no one is able to delineate.'" — Irish Law Times. " We know of no better introduction to the Principles of Equity. ^^ — Canada Law JourWal. " Within the ten years which have elapsed since the appearance of the first edition of this work, its reputation has steadily increased, and it has long since been recognised by students, tutors, and practitioners, as the best elementary treatise on the important and difficult branch of the law which forms its subject." — Laiu Magazine and Review. In 8vo, price 2s., sewed. QUESTIONS ON EQUITY. FOR STUDENTS PREPARING FOR EXAMINATION. FOUNDED ON THE SEVENTH EDITION OF SNELL'S "PRINCIPLES OF EQUITY." By W. T. WAITE, earrister-at-law, holt scholar of the honourable society of gray's inn. In 8vo, price 6j., cloth limp, AN ANALYSIS OF SNELL'S PRINCIPLES OF EQUITY. With Notes thereon. By E. E. Blyth, LL.B., B.A., Solicitor. WORKS FOR LAW STUDENTS. 23 Second Edition, in one volume, 8vo, price l%s. cloth, PRINCIPLES OF CONVEYANCING. AN ELEMENTARY WORK FOR THE USE OF STUDENTS. By henry C. DEANE, OF Lincoln's inn, barrister-at-law, sometime lecturer to the incorporated law society OF THE UNITED KINGDOM. ^^We hope to see this book, like SneWs Equity^ a standard class-book in all Law Schools where English law is taught.''— Canada Law Journal, " We like the work, it is well wi-itten and is an excellent student's book, and being only just pub- lished, it has the great advantage of having in it all the recent important enactments relating to convey- ancing. It possesses also an excellent index." — I^aiu Students* ypiirttal. "Will be found of great use to students entering upon the difficulties of Real Property Law. It has an unusually exhaustive index covering some fifty " ~Z,aw Times. " In the parts which have been re-written, Mr. De^ne haspreserved the same pleasant style marked by simplicity and lucidity which distinguished his first edition. After * Williams on Real Property, there is no book which we should so strongly recommend to the student entering upon Real Pro- perty Law as Mr. Deane's ' Principles of Convey- ancing,' and the high character which the first edition attained has been fully kept up in tMs , second." — Law Jotfnial. Third Edition, in 8vo, price loj. ^d., cloth, A SUMMARY OF THE LAW & PRACTICE IN ADMIRALTY. FOR THE , USE OF STUDENTS. By EUSTACE SMITH, OF THE INNER TEMPLE; AUTHOR OF "a SUMMARY OF COMPANY LAW.'' •'The book is well arranged, and forms a good introduction to the subject." — Solicitor's Journal. " It is however, in our opinion, a well and carefully written little work, and should be in the hands of every student who is taking up Admiralty Law at the Final." — Laiv Students' youmal. '"Mr. Smith has a happy knack of compressing alarge amount of useful matter in a small compass. The present work will doubtless be received with satisfaction equal to that with which his previous '' Summary' has been met." — Oxford and Cambridge Undergraduates^ yournal. Second Edition, in 8vo, price ^s., cloth, A SUMMARY OF THE LAI AND PRACTICE IN THE ECCLESIASTICAL COURTS. FOR THE USE OF STUDENTS. By EUSTACE SMITH, OF THE INNER TEMPLE; AUTHOR OF *'A SUMMARY OF COMPANY LAW," AND "A SUMMARY OF THE LAW AND PRACTICE IN ADMIRALTY." " His object has been, as he tells us in his preface, to give the sttident and general reader a fair outline of the scope and extent of ecclesiastical law, of the principles on which it is founded, of the Courts by which it is enforced, and the procedure by which these Courts are regulated. We think the book well fulfils its object. Its value is much enhanced by a profuse citation of authorities for the propositions contained in it." — Bar Examinatioti Journal. Second Edition, in 8vo, price 7^., cloth, AN EPITOME OF THE LAWS OF PROBATE AND DIVORCE, FOR THE USE OF STUDENTS FOR HONOURS EXAMINATION. By J. CARTER HARRISON, Solicitor. " The work is considerably enlarged, and we think improved, and will be found of great assistance to students." — Law Students' Journal. 24 WORKS FOR LAW STUDENTS. Third Edition, In one volume, 8vo, price 20j., cloth, PRINCIPLES OF THE COMMON LAW. INTENDED FOR THE USE OF STUDENTS AND THE PROFESSION. t.< !' THIRD EDITION. By JOHN INDERMAUR, Solicitor, AUTHOR OF "'a MANUAL OF THE PRACTICE OF THE SUPREME COURT," " EPITOMES OF LEADING CASES," AND OTHER WORKS. "The present edition of this elementary treatise has been in general edited with praise- worthy care. The provisions of the statutes affecting the subjects discussed, which have been passed since the publication of the last edition, are clearly summarised, and the effect of the leading cases is generally very well given. In the difficult task of selecting and distinguishing principle from detail, Mr. Indermaur has been very successful ; the leading principles are clearly brought out, and very judiciously illustrated." — Selicitors' Journal. " The work is acknowledged to be one of the beist written and most useful elementary works for Law Students that has been published." — Law Times. " The praise which we were enabled to bestow upon Mr. Indermaur's very useful com- pilation on its first appearance has been justified by a demand for a second edition." — Law Magazine. I " We were able, four years ago, to praise the first edition of Mr. Indermaur's book as likely to be of use to students in acquiring the elements of the law of torts and contracts. The second edition maintains the character of the book." — Law Journal. "Mr. Indermaur renders even law light reading. He not only possesses. the faculty of judicious selection, but of lucid exposition and felicitous illustration. And while his works are all thus characterised, his ' Principles of the Common Law ' especially displays those features. That it has already reached a second edition, testifies that our estimate of the work on its first appearance was not unduly favourable, highly as we then signified approval ; nor needs it that we should add anything to that estimate in reference to the general scope and execution of the work. It only remains to say, that the present edition evinces that every care has been taken to insure thorough accuracy, while including all the modifications in the law that have taken place since the original publication ; and that the references to the Irish decisions which have been now introduced are calculated to render the work of greater utility to practitioners and students, both English and Irish." -—Irish Law Times. " 7%is work, the author tells us in his Preface, is written mainly with a view to the examinations of the Incorporated Law Society ; but we think it is likely to attain a wider usefulness. It seems, so far as we can judge from the parts 'we have examined, to be a careful and clear outline of the principles of the common law. It is very readable ; and not only students, but many practitioners and th( public might benefit by a perusal of its pages." — Solicitors' Journal. WORKS FOR LAW STUDENTS. 25 Third Edition, in 8vo, price I2s., cloth, A mUAL OF THE PRACTICE OF THE SUPREME COURT OF JUDICATURE, n the Queen's Bench and Chancery Divisions. Adapted to the New Rules of Practice, 1883. Intended for the use of Students. B „ By John Indermaur, Solicitor. good evidwice ri?'''°v ^^ followed quickly upon the first, which was published in 1878. This fact affords student who ma t v '^°°'' ^^^ ^^*° found useful. It contains sufficient information to , enable the ^ "This is a ^^^^*^^ contents to turn to the standard works on practice with advantage."— Zaw Times. rrequires withn Yi,"^-!^' student's book. It is clearly written, and gives such information as the student ^excellent introd' ■ '''*^''™g him with details. The portion relating to the Chancery Division forms an ^articled cler^K "^°i^ ^° ^^ elements of the practice, and may be advantageously used, not only by \ TKS^^Dutalso by pupils entering the chambers of equity draftsmen." — Solicitors' youmal. I Fifth Edition, in 8vo, price ds., cloth, \ AN EPITOME OF LEADING COMMON LAW CASES; WITH SOME SHORT NOTES THEREON. Chiefly intended as a Guide to " Smith's Leading Cases." By John Indermaur, Solicitor (Clifford's Inn Prizeman, Michaelmas Term, 1872). m, ^c*"!—' ""ijC?'^ 'h^ ^■'■'l edition of the ' Epitome of Leading Common Law Cases,' by Mr. Inder- maur, solicitor. The first edition of this work was published in February, 1873, the second in April, 1874 f now we have a third edition dated September, 1875. No better proof of the value of this book can be inrmstied than th e fact that in less than three years it has reached a third edition."— iflHi yonmal. Fifth Edition, in 8vo, price 6j., cloth, AN EPITOME OF LEADIMG COMEYAKCIG AND EQUITY CASES; WITH SOME SHORT NOTES THEREON, FOR THE USE OF STUDENTS. , By John Indermaur, Solicitor, Author of "An Epitome of Leading Common Law Cases. " "We have received the second edition of Mr. Indermaur's very useful Epitome of Leading Convey- ancing and Equity Cases. The work is very well done." — Law Times. The Epitome well deserves the continued patronage of the class — Students — for whom it is especially mtended. Mr. Indermatu: will soon be known as the 'Students' Friend.' " — Canada Law Jotmtal. Fourth Edition, in 8vo, price ^s. 6a., cloth, SELF-PREPARATION FOR THE FINAL EXAMINATION. CONTAINING A COMPLETE COURSE OF STUDY, WITH STATUTES, CASES AND QUESTIONS; And intended for the use of those Articled Clerks who read by themselves. By John Indermaur, Solicitor. "In this edition Mr. Indermaur extends his counsels to the whole period from the intermediate examination to the final. His advice is practical and sensible : and if the course of study he recommends is intelligently followed, the articled clerk will have laid in a store of legal knowledge more than sufficient to carry him through the final examination." — Solicitor^ Journal. . f. . . . . "This book contains recommendations as to how a complete course of study for the above exammation should be carried out, with reference to the particular books to be read seriatim. We need only remark that it is essential for a student to be set on the right track in his reading, and that anyone of ordinary ability, who follows the. course set out by Mr. Indermaur, ought to pass with great credit."— ia7« youmal. Third Edition, in Svo, price Ts., cloth, SELF -PREPARATION FOR THE INTERMEDIATE EXAMINATION, As it at present exists on Stephen's Commentaries. Containing a complete course of Study, with Statutes, Questions, and Advice as to portions of the book which may be omitted, and of portions to which special attention should be given ; also the whole of the Questions and Answers at the Intermediate Examinations which have at present been held on Stephen's Commentaries, and intended for the use of all Articled Clerks who have not yet passed the Intermediate Examination. By John Indermaur, Author of " Principles of Common Law," and other works. In Svo, 1875, price ds., cloth, THE STUDENTS' GUIDE TO THE JUDICATURE ACTS AND THE RULES THEREUNDER: Being a book of Questions and Answers intended for the use of Law Students. By John Indermaur, Solicitor. 26 WORKS FOR LAW STUDENTS. Fourth Edition, in Crown 8vo, price Sj-. ^d., cloth, A SHORT EPITOME OF THE PRINCIPAL STATUTES RELATING TO CONVEYANCING, extending FROM 13 Edw. I. TO THE END OF 48 VICTORIA, CAP. 4. Intended for the Use of Students and Practitioners. Fourth Edition, Enlarged, By George Nichols Marcy, of Lincoln's Inn, Barrister-at-Law. Second Edition. In Svo, price 26^., cloth, A NEW LAW DICTIONARY, AND INSTITUTE OF THE WHOLE LAW ; EMBRACING FRENCH AND LATIN TERMS AND REFERENCES TO THE AtJTHORITIES, CASES, AND STATUTES. SECOND EDITION, revised throughout, and considerably enlarged. By ARCHIBALD BROWN, M.A. EDIN. AND OXON., AND B.C.L. OXON., OF THE MIDDLE TEMPLE, BARRISTER-AT-LAW ; AUTHOR OF THE "law of fixtures," "ANALYSIS OF SAVIGNY'S OBLIGATIONS IN ROMAN LAW,' ETC. Reviews of the Second Edition. "So far as we have been able to exatnine the moi-k, it seems to have been most carefully and accurately executed, the present Edition, besides containing much new matter, having been thoroughly revised in consequence of the recent changes in the law ; and we have no doubt whatever that it will be found extremely, useful, not only to.students and practitioners, but to public men, and men of letters." — Irish Law Times. "Mr. Brown has revised his Dictionary, and adapted it to the changes effected by the. Judicature Acts, and it now constitutes a very ttscfal work to put into the hands of any student or articled clerk, and a work which the practitioner will find ofvqiuefor reference. " — ^Solicitors' Journal. i "It will prove a reliable guide to latv students, and a handy book of reference for practitioners."- — Law Times. In Royal 8vo., price 5^., .cloth, ANALYTICAL TABLES OF THE LAW OF REAL PROPERTY; Drawn up chiefly from STEPHEN'S BLACKSTONE, with Notes. By C. J. TARRING, of the Inner Temple, Barrister-at-Law. CONTENTS. Table I. Tenures. ,, II. Estates, according to quantity of Tenants' Interest. ,, III. Estates, according to the time at which the Interest is to be enjoyed. >, IV. Estates, according to the number and connection of the Tenants. Table V. Uses. ,, VI. Acquisition of Estates in land of freehold tenure. ,, VII. Incorporeal Hereditaments. ,, VIII. Incorporeal Hereditaments. " Great care and considerable skill have been shown, in the compilation of these tables, which will be found of much service to students of the Law of Real Property." — Law Times, WORKS FOR LAW STUDENTS. 27 Third Edition, in 8vo, price 20^-., cloth, PRINCIPLES OF THE CRIMINAL LAW. INTENDED AS A LUCID EXPOSITION OF THE SUBJECT FOR THE USE OF STUDENTS AND THE PROFESSION. By SEYMOUR F. HARRIS, B.C.L., M.A. (Oxon.), AUTHOR OF "a CONCISE DIGEST OF THE INSTITUTES OF GAIUS AND JUSTINIAN." 7HIRD EDITION. Revised by the Author and AVIET AGABEG, of the Inner Temple, Barrister-at-Law. REVIEWS. " The favourable opinion -die expressed of the first edition of this work appears to have been justified by the reception it has met with. Looking through this new Edition, we see no reason to tnodify the praise we bestowed on the former Edition. The recent cases have been addec^ and the provisions of the Summary furisdiction Act are noticed in the chapter relating to Summary Convictions. The book is one of the best manuals of Criminal Law for the student." — Solicitors' Journal. "There is no lack of Works on Criminal Law, but there was rooin for such a useful handbook of Principles as Mr. Seymour Harris has supplied. Accustomed, by his previous labours, to the task of analysing the law, Mr. Harris has brought to bear upon his present work qtialifications well adapted to secure the successful accomplishment of the object which he had set before him. That object is not an ambitious one, for it does not pretend to soar above utility to the young practitioner and the student. For both these classes, and for the yet wider class who may require a book of reference on the subject, Mr. Harris has produced a clear and convenient Epitome of the Law. A noticeable feature of Mr. Harris's work, which IS likely to prove of assistance both to the practitioner and the student, consists of a Table of Offences, with their legal character, their punishment, and the statute under which it is inflicted, together with a reference to the pages where a Statement of the Law will be found." — Law Magazine and Review. " This work purports to contain ' a concise exposition of the nature of crime, the various offences punish- able by the En^hsh law, the law of criminal procedure, and the law of summary convictions,' with tables of offences, punishments, and statutes. The work is divided into four books. Book I. treats of crime, its divisions and essentials ; of persons capable of. committing crimes ; and of principals and accessories. Book II. deals with offences' of a public nature ; offences against private persons ; and offences against the property of individuals. Each crime is discussed in its turn, with as much brevity as could well be used consistently with a proper explanation of the legal characteristics of the several offences. Book III. explains criminal procedure, including the jurisdiction of Courts, and the various steps in the apprehension and trial of criminals from arrest to punishment. This part of the work is extremely well done, the description of the trial being excellent, and thoroughly calculated to impress the mind of the uninitiated. Book IV. contains a short sketch of ' summary convictions before magistrates out of cjuarter sessions.* The table of offences at the end of- the volume is most useful, and there is a very full index. Altogether we must congratulate Mr. Harris on his adventure." — Law yoicmat. "Mr. Harris has undertaken a work, in our opinion, so much needed that he might diminish its bulk in the next edition by obliterating the apologetic preface. The appearance of his volume is as well timed as its execution is satisfactory. The author has shown an ability of omission which is a good test of skill, and from the ovei-whelming mass of the criminal law he has discreetly selected just so much only fis a learner needs to know, and has presented it in terms which render it capable of being easily taken into the mind. The first half of the volume is devoted to indictable offences, which are defined and explained in succinct terms; the second half treats of the prevention of offences, the cottiis of criminal jurisdiction, arrest, preliminary proceedings before magistrates, and modes of prosecuting and trial ; and a brief epitome of the laws of evidence, proceedings after trial, aiui summary convictions, with a table of offences, complete tlie book. The part on procedure will be found particularly iiseful. Few young counsel, on their first appearance at sessions, have more than a loose and general notion of the manner in which a trial is conducted, and often commit blunders which, although trifling in kind, ar,e nevertheless seriously discouraginq and aniioying to themselves at the outset of their career. From even such a blunder"as that- of mistaking the order in which the speeches are made and witnesses examined they may be saved by the table of instructions given ^««."— Solicitors' Journal. 28 WORKS FOR LAW STUDENTS. In crown 8vo, price ^s., cloth, THE STUDENTS' GUIDE TO BANKRUPTCY; Being a Complete Digest of the Law of Bankruptcy in the shape of Questions and Answers, and coinprising all Questions asked at the Solicitors' Final Examinations in Bankruptcy since the Bankruptcy Act, 1883, and all important Decisions since that Act. By John Indermaur, Solicitor, Author of " Principles of Common Law," &c., &c. Now Ready, in i2mo, price Sj. dd., cloth, A CONCISE TREATISE ON THE LAW OF BILLS OF SALE, FOR THE USE OF LAWYERS, LAW STUDENTS, & THE PUBLIC. Embracing the Acts of 1878 and 1882. Part I.— Of Bills of Sale generally. Part II.— Of the Execution, Attestation, and Registration of Bills of Sale and satisfaction thereof. Part III.— Of the Effec'ts of Bills of Sale as against Creditors. Part IV. — Of Seizing under, and Enforcing Bills of Sale. Appendix, Forms, Acts, &c. By John Indermaur, Solicitor. " The object of the book is thoroughly practical. Those who want to be told Exactly what to do and where to go when they are registering a bill of sale will find the necessary information in thi^little book." — haw Journal, Now ready, in 8vo, price 2.s. dd., cloth, A COLLECTION. OF LATIN MAXIMS, LITERALLY TRANSLATED. INTENDED FOR THE USE OF STUDENTS FOR ALL LEGAL EXAMINATIONS. "The book seems admirably adapted as^a.book of reference for students who come across a Latin maxim in their reading." — Law yournaL In one volume, 8vo, price 9^., cloth, LEADING STATUTES SUMMARISED, FOR THE USE OF STUDENTS. By ERNEST C. THOMAS, BACON SCHOLAR OF THE HON. SOCIETY OF GRAY'S INN, LATE SCHOLAR OF TRINITY COLLEGE, OXFORD ; AUTHOR OF " LEADING CASES IN CONSTITUTIONAL LAW BRIEFLY STATES.*' Second Edition, in 8vo, enlarged, price 6^*,, cloth, LEADING CASES IN CONSTITUTIONAL LAW Briefly Stated, with Introduction and Notes. By ERNEST C. THOMAS, BACON SCHOLAR OF THE HON. SOCIETY OF GRAY'S INN, LATE SCHOLAR OF TRINITY COLLEGE, OXFORD. ■' Mr. E. C. Thomas has put together in a slim octavo a digest of the principal cases illustrating Con- stitutional Law, that is to say, all questions as to the rights or authority of the Crown or persons under it, as regards not merely the constitution and structure p;iven to the governing body, but also the mode in which the sovereign power is to be exercised. In an introductory essay Mr. Thomas gives a vety clear and intelligent survey of the general functions of the Executive, and the principles by which they are regulated ; and then follows a simimary of leading cases." — Saturday Review. " Mr. Thomas gives a sensible introduction and a brief epitome of the familiar leading cases."— Zaw Times. In 8vo,^ price 8^., cloth, AN EPITOME OF HINDU LAW CASES. With Short Notes therebn. And Introductory Chapters on Sources of Law, Marriage, Adoption, Partition, and Succession. By WILLIAM M. P. Coghlan, Bombay Civil Service, late Judge and Sessions Judge of Tanna. STEVENS &- HAYNES, BELL YARD, TEMPLE BAR. 29 a neat Pocket Volume, crown 8vo, price loj. (>d., cloth, In THE BANKRUPTCY ACT, 1883, With Notes explaining its operation, and shewing wherein it differs FROM THE Bankruptcy Act, 1869 ; The bankruptcy RULES and FORMS, 1883 ; The Debtors Act, 1869, so far as applicable to Bankruptcy Matters, with Rules and Forms thereunder ; the Bills of Sale Acts, 1878 and 1882 ; Board of Trade Circulars and Forms, and List of Official Receivers ; Scale of Costs, Fees, and Percentages ; Orders of the Bankruptcy Judge of the High Court ; and a Copious Index. By WILLIAM HAZLITT, Esq., and RICHARD RINGWOOD, M.A., SENIOR REGISTRAR IN BANKRUPTCY, OF THE MIDDLE TEMPLE, ESQ., BARRISTER-AT-LAW. "This is a very handy edition of the Act and Rules The cross references and marginal references to corresponding provisions of the Act of 1869 are exceedingly useful There is a very full index, and the book is admirably printed."— ^o/zciVorj' Jottrnal. **We can confidently recommend the book as one of the most practically useful which have yet appeared. The index leaves nothing to be desired." — Lww Times. Part I., price 7j. 6(/., sewed, LORD WESTBURY'S DECISIONS IN THE EUROPEAN ARBITRATION. Reported by Francis S. Reilly, of Lincoln's Inn, Barrister-at-Law. Parts I., II., and III., price 25^., sewed, LORD CAIRNS'S DECISIONS IN THE ALBERT ARBITRATION. Reported by Francis S. Reilly, of Lincoln's Inn, Barrister-at-Law. Second Edition, in 8vo, in preparation. A TREATISE ON THE STATUTES OF ELIZABETH AGAINST FRAUDULENT CONVEYANCES. The Bills of Sale Registration Acts and the Law of Voluntary Dispositions of Property generally. By H. W. may, B.A. (Ch. Ch. Oxford), AND OF Lincoln's inn, baerister-at-law. Second Edition, thoroughly revised'and enlarged, by S. WorthingtonWorthington, of the inner Teniple, Barristex-at-Law. Editor of the "Married Women's Property Acts," S* edition, by the late J. R. Griffith "This treatise has not been published before it was wanted. The statutes of Elizabeth against fraudulent conveyances have now been in force_ for more than three hundred years. The decisions under them are legion in number, and not at all times consistent with each other. An attempt to reduce the mass of decisions into something like shape, and the exposition of legal principles in- volved m the decisions, under any circumstances, murt have been a work of great labour, and we are pleased to observe that in the book before us there has been a combination of unusual labour with con- siderable professional skill. ... We cannot con- clude our notice of this work without saying that it reflects great credit on the publishers as well as the author. The facilities afforded by Messrs. Stevens and Haynes for the publication of treatises by rising men in our profession are deserving of all praise. We feel assured that they do not lightly lend their aid to works presented for publication, and that in consequence publication by such a firm is to some extent a guarantee of the value of. the work published."— Canada Law youmal. " Examining Mr. May's book, we find it con- structed with an intelligence and precision which render it entirely worthy of being accepted as a guide in this confessedly difficult subject. The subject is an involved one, but with clean and clear handling it is here presented as clearly as it could be. . . . On the whole^ he has produced a very useful book of an exceptionally scientific character." — Soticitors' Journal. " The subject and the work are both very good. The former is well chosen, new, and interesting ; the latter has the quality which always distin- guishes original research from borrowed labours." — American Law Review. "We are happy to welcome his (Mr. May's) work as an addition to the, we regret to say, brief cata- logue of law books conscientiously executed. We can corroborate his own description of his labours, ' that no pains have been,spared to. make the book as concise and practical as possible, without doing so at the expense of perspicuity, or by the omission of any important points.' " — Law Time^. 30 STMVENS &' HAYNES, BELL YARD, TEMPLE BAR. In one volume, 8v6, price 25J.J cloth, AN ESSAY ON THE RIGHTS OF THE CROWN AND THE PRIVILEGES OF THE SUBJECT IN THE SEA SHORES OF THE REALM, By ROBERT GREAM HALL, OF Lincoln's inn, barrister-at-law. SECOND EDITIONy Revised and Corrected, together with extensive Annotations, and References to the later Authorities in England, Scotland, Ireland, and the United States. ; By RICHARD LOVELAND LOVELAND, . OF THE INNER TEMPLE, BAKRISTER-AT-LAW. necessary to supplement it so largely by reference to cases since decided. A tempting opportunity was, therefore, offered to an intelligent editor to supply this defect in the work, and Mr. Loveland has seized it, and proved his capacity in a very marked manner. As very good specimens of anno- tation, showing clear judgment in selection, we may refer to the subject of alluvion at page log, and the rights of fishery at page 50. At the latter place he begins his notes by stating under what expressibns a 'several fishery' has been held to pass, proceed- ing, subsequently to the evidence which is sufficient to support a claim to ownership of a fishery. The important question undfer what circumstances properhrcan be acquired , in the soil between high and low -water mark is lucidly discussed at page 77, Whilst at page 81 we find a pregnant note on the property of a grantee of wreck in goods stranded withiti his liberty. "We think we can promise Mr. Loveland the reward for which alone he says he looks — that this edition of Hall's Essay will prove a most decided assistance to those engaged in cases relating to the foreshores of the country." — Laxv Ti7nes. "This is an interesting and valuable book. It treats of one of those obscure branches of the law which there is no great inducement for a legal writer to take up. .... Mr. Hall, whose first edition was issued in' 1830," was a writer of consider- . able power and method. Mr. Loveland's editing reflects the valuable qualities of the ' Essay' itself. He has done his work without pretension, but in, a solid and efficient manner. The ' Summary of Con- tents' gives an admirable, epitome of the chief points discussed in the 'EsSay,' and indeed, in some twenty propositions, supplies a useful outline of the whole law. Recent cases are noted at the foot of each page with great care and accurapy, while an Appendix contains much valuable matter ; including Lord Hale's treatise De Jure Ma/yis^ about which there has been so' much controversy, and Serjeant Merewether's learned argument on the rights in the river Thames. The book will, we thinkj t-ake its place as the niqdern authority on the subject. "-jT-i^w yo-Urhal. "-'■ "The treatise, as originally published, was one of considerable value, alid has ever since been quoted as a standard authority. But as time passed, and cases accumulated, its value diminished, as it was ' 77ie e7itire book is masterly.^'' — Albany. Law Journal. In one vohimej 8vo, price I2J., cloth, A TREATISE ON THE LAW RELATING TO THE POLLUTION AND OBSTRUCTION OF WATER COURSES ; Together with a Brief Summary of the Various Sources of Rivers Pollution. By CLEMENT HIGGINS, M.A., F.C.S., OF THE INNER TEMPLE, BARRISTER-AT-LAW "As a compendium of the law upon a special and rather ^intricate subject, this treatise cannot but prove of great practical value^ and more especially to those who have to advise upon the institution of proceedings under the Rivers Pollu- tion Preventive Act, 1876, or' to adjudicate upon those proceedings when brought." — Irish Law Times. . "We can recommend Mr. Higgins' Manual as the best guide we possess." — Public Health. "County Court Judges, Sanitary Authorities, and Riparian Owners will find in Mr. Higgins Treatise a valuable aid in obtaining a clear notion of the Law on the Subject. Mr. Higgins has accomplished a work for which he will readily be recognised as having special fitness, on account of his practical acquaintance both with the scientific and the legal aspects of his subject." — Laiu Maga- zine and Review. "The volume is very carefully arranged through- out, and will prove of great utility both to miners and to owners of land bn the banks of rivers." — T/te Mining journal. "Mr. Higgins writes tersely and clearly, while his facts are so well arranged' that it is a pleasure to refer to his book for information ; and altogether the work is one which will be found very useful by all interested in the subject to which it relates." — Engineer. ' A compact and convenient manual of the law on the subject to which it relates." — Solicitors* yonmal. STEVENS &- HAYNES, BELL YARD, TEMPLE BAR. 31 In 8vo, Fou:^TH Edition, price 25s., cloth, MAYNE'S TREATISE ON THE LAW OF DAMAGES. FOURTH EDITION. BY JOHN D. M A Y N E, OF THE INNER TEMPLE, BARRISTER-AT-LAW ; AND LUMLEY SMITH, OF THE*INNER TEMPLE, Q.C. " Few books have been better kept up to the current law than this treatise. The earlier part of the book was remodelled in the last edition, and in the present edition the chapter on Penalties and Liquidated Damages has been re-written, no doubt in consequence of, or with regard to, the elaborate and exhaustive judgment of the late Master of the Rolls in Wallis v. Smith (31 W. R. 214 ; L. R. 21 Ch. D. 243.) The treatment of the subject by the authors is admirably clear and concise. Upon the point involved in Wallis v. Smith they say ' The result is that an agreement with various covenants of different importance is not to be governed by any inflexible rule pecuhar to itself, but is to be dealt with as coming under the general rule, that the intention of the parties themselves is to be considered. If they have said that in the case of any breach a fixed sum is to be paid, then they will be kept to their agreement, unless it would lead to such an absurdity or injustice that it must be assumed that they did not mean what they said." This is a very fair summary of the judgments in Wallis v. Smith, especially of that of Lord justice Cotton ; and it supplies the nearest approach which can be given at present to a rule for practical guidance. We can heartily commend this as a carefully edited eSition of a thoroughly good book." — Solicitors' Jonrnal. ' ' The editors have, with their well-known care, eliminated much obsolete matter, and revised and corrected the text in accordance with the recent changes in procedure and legislation. The chapter on penalties and hquidated damages has been to a great extent re-written, and a new chapter has been added on breach of statutory obligations. As of former editions of this valua- ble work we can but speak of it with strong commendation as a most reliable authority on a very important branch of our law^the Right to Damages as the result of an Action at Law." — Law Journal. ' ' During the twenty-two years which have elapsed since the fublication of this well-known work, its reputation has been steadily growing, and it has long since become the recognised authonty on the important subject of which it treats."— Lkw Magazine and Review. "This edition of what has become a standard what the facts proved in their judgment required. work has the advantage of appearing under the And, according to the better opm.on they may give supervision of the ori|inal author as well as of .^^^""-^ 'for pvamnle s sake, and mulct a nnh Mr. Lumley Smith, the editor of the second edition. The result is most satisfactory. Mr. Lumley Smith's edition was ably and conscientiously pre- pared, and we are glad to find that the reader still enjoys the benefit of his accuracy and learning. At the same time the book has doubtless been improved by the reappearance of its author as co- editor. The earlier part, indeed, has been to a considerable extent entirely rewritten. _ "Mr Mayne's remarks on damages in actions oi tort are brief. We agree with him that m such actions the courts are governed by far looser princi- ples than in contracts ; indeed, sometimes it is impossible to say they are governed by any pnnci- ples at all. In actions for injuries to the person or reputation, for example, a judge cannot do more than give a general direction to the jury to give damages 'for example's sake,' and mulct a rich man more heavily than a poor one. In actions for injuries to property, however, ' vindictive ' or ' exemplary ' damages cannot, except in very rare cases, be awarded, but must be limited, as in con- tract, to the actual harm sustained. '* It is needless to comment upon the arrangement of the subjects in this edition, in which no alteration has been made. The editors modestly exjaress a hope that all the English as well as the principal Irish decisions up to the date have been included, and we believe from our own examination that the hope is well founded. We may regret that, warned by the growing bulk of 'the book, the editors have not included any fresh American cases, but we feel that the omission was unavoidable. We should add that the whole work has been thoroughly revised." Solicitors' Journal. n give a general airecuoii tu wic juij .." &'•- " This text-book is so well known, not only as the highest authority on the subject treated of but as one of the best text-books ever written, that it would be idle for us to speak of it in the words of commendation that it deserves. It is a work that no practising lawyer can do without:'— CM^hDX Law Journal. 32 STEVENS &' HAYNES, BELL YARD, TEMPLE BAR. In 8vo, price 2s. , sewed, TABLE of tlie FOREIGN MERCANTILE LAWS and CODES in Force in the Principal States of EUROPE and AMERICA. By Charles Lyon-Caen, Professeur agrege a la Faculty de Droit de Paris ; Professeur a I'Ecole libre des Sciences politiques. Translated by Napoleon Argles, Solicitor, Paris. In one volume, demy 8vo, price ioj. 6d. , cloth, PRINCIPLES OF THE LAW OF STOPPAGE IN TRANSITU, RETENTION, AND DELIVERY. By JOHN HOUSTON, of the Middle Temple, Barrister-at-Law. " We have no hesitation in saying that we think Mr. Houston's book will be a very useful accession to the library of either the merchant or the lawyer." Solicitor^ Jotimal. " We have, indeed, met with few works which so successfully surmount the difficulties in the way of this arduous undertaking as the qne before us ; for the language is well chosen, it is exhaustive of the law, and' is systematised with great method." — American Law Revieiv. In 8vo, price igs. 6d., cloth,. A REPORT OF THE CASE OF THE QUEEN v. GURNEY AND OTHERS, In the Court of Queen's Bench before the Lord Chief Justice Cockburn. With an Introduction, containing a History of the Case, and an Examination of the Cases at Law and Equity applicable to it ; or Illustrating the Doctrine OF Com- mercial Fraud. By W, F. Finlason, Barrister-at-.Law. " It will probably be a very long time before the prosecution of the Overend and Gurney directors is forgotten. It reirfains as an example, and a legal precedent of considerable valu^. It^ involved the immensely important question where innocent mis- representation ends, and where fraudulent misrepre- sentation begins. " All who perused the report of this case in the ' columns of the Times must have observed the remarkable fulness and accuracy with which that duty was discharged, and nothing could be more natural than that the reporter should publish . a separate report in book form. This has been done, and Mr. Finlason introduces the report by one hundred pages of dissertation on the general law. To this we shall proceed to refer, simply remarking, before doing so, that the , charge to the jury has been carefully revised by the Lord Chief Justice," — Law Times, i2mo, price lo^. 6^., cloth, A TREATISE ON THE GAME LAWS OF ENGLAND AND WALES: Including Introduction, Statutes, Explanatory Notes, Cases, and Index. By John Locke, M.P., Q.C., Recorder of Brighton. The Fifth Edition, in which are introduced the GAME LAWS of SCOTLAND and IRELAND. By Gilmore Evans, of the Inner Temple, Barrister-at-Law. ' In royal 8vo, price los. 6d., cloth, THE PRACTICE OF EQUITY BY WAY OF REVIVOR AND SUPPLEMENT. With Forms of Orders and Appendix of Bills. By LOFTUS LEIGH PEMBERTON, of the Chancery Registrar's Office. " Mr. Pemberton has, with great care, brought l will probably be applied to future cases."— i'tfii- together and classified all these conflicting cases, citors' youmal, and has, as far as may be, deduced principles which | In 8vo, price 5^., cloth, THE LAW OF PRIORITY. A Concise View of the Law relating to Priority of Incumbrances AND OF other RIGHTS IN PROPERTY. By W. G. ROBINSON, M.A., Barrister-at-Law. " Mr. Robinson's book may be Recommended to the advanced student, and will furnish the practi- tioner with a useful supplement to larger and more complete works." — Solicitors' Jottmal, STEVENS dr= HAYNES, BELL YARD, TEMPLE BAR. 33 In crown 8v6, price i5j., cloth, A MANUAL OF THE PRACTICE OF PARLIA- MENTARY ELECTIONS THROUGHOUT GREAT BRITAIN AND IRELAND. Comprising the Duties of Returning, Officers and their Deputies, Town Clerks, Agents, Poll-Clerks, &c., and the Law of Election Expenses, Corrupt Practices, and illegal Payments. With an Appendix of Statutes and an Index. By Henry Jeffreys Bushby, Esq., one of the Metropolitan Police Magistrates, sometime Recorder of Colchester. — Fifth Edition. Adapted to and embodying the recent changes in the Law, including the Ballot Act, the Instruc- tions to Returning Officers in England and Scotland issued by the Home Office, and the whole of the Statute Law r'eldtitig to the subject. Edited by Henry Hardcastle, of the Inner Temple, Barristef-at-Law. "We have just received at a very opportune moment the new edition of this useful Work. We need only say that those who have to do with dectiins will find ' Bushby's Manual " replete with information and trustworthy, and that Mr. Hard- castle has incorporated all the recent changes of the law." — Law youmal. "As far as we can judge„Mr. Hardcastle, who is known as one of the joint editors of O'Malley and Hard'castle's Election Reports, has done his work Well For practical purposes, as a handy manual, we can recommend the work to returning officers, agents, and candidates ; and returning officers cannot do better thari distrib^ute, this manual freely amongst their subordinates, if they wish them to understand their work." — Soli- citors^ Journal. Third Edition, in crown 8vo, price j., cloth, THE LAW AND PEAOTIOE OF ELECTION PETITIONS, With an Appendix containing the Parliamentary Elections Acts, the Corrupt and Illegal Practices Prevention Acts, the General Rules of Procedure made by the Election Judges in Erigland, Scotland, and Ireland, Forms of Petitions, he. Third Edition. By Henry Hardcastle, of the Inner Temple, Barrister-at-Law. *' Mr. Hardcastle gives us an original treatise with foot notes, and he has evidently taken very considerable pains to make his work a reliable guide. Beginning with the effect of the Election Petitions Act, 1868, he takes his readers step by step through the new procedure. His mode of treating the subject of 'particulars' will be found extremely useful, and he gives all the law and practice in a very small compass. In an Appendix is supplied the Act and the Rules. We can thoroughly recommend Mr. Hardcastle's book as a concise manual on the law and practice of election petitions, "-^iaw Times. Now ready, Vols. I., II., & III., price *]Zs, ; and Vol. IV., Pts. I. & II., price Sj. REPORTS OF THE DECISIONS OF THE JUDGES FOR THE TRIAL OF ELECTION PETITIONS IN ENGLAND AND IRELAND. PURSUANT TO THE PARLIAMENTARY ELECTIONS ACT, 1868. By EDWARD LOUGHLIN O'MALLEY and HENRY HARDCASTLE. In 8vo, price I2j., cloth, THE LAW OF FIXTURES, IN THE PRINCIPAL RELATION OF LANDLORD AND TP:NANT, AlilD IN ALL OTHER OR GENERAL RELATIONS. FOURTH EDITION. By ARCHIBALD BROWN, M.A. Edin. and Oxon., and B.C.L. Oxon., OF THE MIDDLE TEMPLE, BAKRISTER-AT-LAW. new edition, and we have not space for further remarks on the book itself: but we may observe that the particular circumstances of the cases cited are in all instances sufficiently detailed to make the principle of law clear; and thoughverymany of the principles given are in the very words of the judges, at the same time the author has not spared to deduce his own observations, and the treatise is commend- able as well for originality as for laboriousness." — Law Journal, "The avithor tells us that every endeavour has been made to make this Edition as complete as pdssible. We think he has been very successful. For instance, the changes effected by the Bills of Sale Act, 1878, have been well indicated, and a new chapter has been added with reference to the Law of Ecclesiastical Fixtures and Dilapidations. The book is worthy of the success it has achieved." — Laiu Times. "We have touched on the principal features of this 34 STEVENS &- HAYNES, ^^^.^ ^^yv^, x^iuir±.j,:. ^^i^. jStcbftt* anb gSagius' paries nf ^tpthtts of tlw ffiarlg ^tpirrters. SIR BARTHOLOMEW SHOWER'S PARLIAMENTARY CASES. In 8vo, 1876, price 4/. 4?., best calf binding, SHOWER'S CASES IN PARLIAMENT RESOLVED AND ADJUDGED UPON PETITIONS Sf WRITS OF ERROR. FOURTH EDITION. CONTAINING ADDITIONAL CASES NOT HITHERTO REPORTED. REVISED AND EDITED BY RICHARD LbVELAND LOVELAND, OF THE INNER TEMPLE, BARRISTER-AT-LAW ; EDITOR OF " KELYNg's CROWN CASES," AND " hall's essay ON THE EIGHTS OF THE CROWN IN THE SEASHORE." " Messrs. Stevens & Havnes, the successful publishers of the Reprints of Bellewe, | Cooke, Cunningham, Brookes's New Cases, Choyce Cases in Chancery, William Kelynge [; and Kel3^g's Crown Cases, determined to issue a new or fourth Edition of Shower's Cases ( "in "Parliament. t " The volume, although beautifully printed on old-fashioned Paper, in old-fashioned [ type, instead of being in the quarto, is in the more convenient octavo form, and contains t several additional cases not to be found in any of the previous editions of the work. [ " These are all cases of importance, worthy of being ushered into the light of the | world by enterprising publishers. , [ "Shower's Cases are models for reporters, even in our day. The. statements of the 1 case, the arguments of counsel, and the bpinions of the. Judges, are all Clearly and ably given. " This new edition with an old face of these valuable reports, under the able editorship of R. L. Loveland, Esq. , should, in the language of the advertisement, ' be welcomed by the profession, as well as enable the custodians of public libraries to complete or add to their series of English Law Reports.' " — Canada Law Journal. BELLEWE'S CASES, T. RICHARD II. In 8vo, 1869,' price 3/. jj., bound in calf antique, LES ANS DU ROY RICHARD LE SECOND. Collect' ensembl' hors les abridgments de Statham, Fitzherbert et Brooke.^ ^ Per Richard Bellewe, de Lincolns Inne. 1585. Reprinted from the Original Edition. " No public library in the> world, where English law finds a place, should be without a copy of this edition of Bellewe." — Canada Law youmal, " We have here &/ac~stmile edition, of Bellewe, and it is really the most beautiful and admirable reprint that has appeared at any time. It is a perfect gem of antique printing, and forms a most interesting monument of our early legal history. It belongs to the same class of works as the Year Book of Edward I. and other 'simjilar works which have been printed in our own time under the , auspices of the Master of the Rolls ; but is far superior to any of them, and is in this respect highly creditable to the spirit and enterprise^ of private publishers. The work is an important link in our legal history ; there are no year books of the reign of Richard II., and^ellewe supplied the only substitute by carefully extractingand collecting all the cases he could find, and he did it in the most convenient form — that of alphabetical arrangement in the order of subjects, so that the lyork is a digest as well as a book of law reports. It is in fact a collection of cases of the rei^n of Richard II., arranged according'.to their subjects in alphabetical order. It is therefore one of the most intelli^ble and interesting legal memorials of the Middle Ages," — Laiu Times. CUNNINGHAM'S REPORTS. In 8vo, 1 87 1, pflrice 3/., 3 J., calf antique, Cunningham's (T.) Reports in K. B., 7 to 10 Geo. II.; to which is prefixed a Proposal for rendering the Laws of England clear and certain, humbly offered to the Consideration of both Houses of Parliament. Third edition, with numerous Corrections. By Thomas Townsend Bucknill, Barrister-at-Law. peace and prosperity of every nation than^good laws and the due execution of them.' The history of the civil law is then rapidly traced. Next a history is given of English Reporters,, beginning with the reporters of the Year Books from i Edw. III. to 12 Hen. VIII. — ^being near 200 years—and afterwards to the time of the author." — Canada ' The instructive chapter which precedes the les, entitled ' A proposal for rendering the Laws of England clear and certain,' gives the volume a degree of pecuFiar interest, independent of the value of many of the reported cases. That chaptei* begins with words which ought, for the information of every people, to be printed in letters of gold. They are as follows : ' Nothing conduces more to the Law ypurnal. ST£VENS &» ff A YATES, BELL YARD, TEMPLE BAR. CHOYCE CASES IN CHANCERY. In 8vo, 1870, price 2/. 2s., calf antique, THE PEAOTIOE OF THE HIGH COURT OF OHANOERT. With the Nature of the several Offices belonging to that Court. And the Reports of many Cases wherein Relief hath been there had, and where denyed. \ll'3hn\Tli",h ^' " ''^''",'iP*' ^^^ Wnding (like " Bellewe's Cases ") is a fac-simile of the antique edition. All who buy the one should buy the oth^r." -Canada Law yoiimal. In 8vo, 1872, price 3/. 3^., calf antique, SIR G. COOKE'S COMMON PLEAS REPORTS IN THE REIGNS OF QUEEN ANNE, AND KINGS GEORGE I. and II. The Third Edition, with Additional Cases and References contained in the Notes taken from L. C. J. Eyre's MSS. by Mr. Justice Nares, edited by Thomas TOWNSEND BucKNiLL, of the Inner Temple, Barrister-at-Law. " Law books never can die or remain long dead so long as Stevens and Haynes are willing to con- tinue them or revive them when dead. It is cer- tainly surprising to see with what facial accuracy an old volume of Reports maybe produced by these modern publishers, whose good taste is onlyequalied by their enterprise."— CaMa^« La-w Jonmal, BROOKE'S NEW CASES WITH MARCH'S TRANSLATION. In 8vo, 1873, price 4/. 4j., calf antique, Brooke's (Sir Robert) New Cases in the time of Henry VIII., Edward VI., and Queen Mary, collected out of Brooke's Abridgement, and arranged under years, with a table, together with March's (John) Tran^ation «/■ Brooke's New Cases in the time of Henry VIII., Edward VI., and Queen Mary, collected out of Brooke's Abridgement, and reduced alphabetically under their proper heads and titles, with a table of the principal matters. In one handsome volume. 8vo. 1873. " Both the original and the translation having long been very scarce, and the mispaging and other errors in March's translation making a new and corrected edition peculiarly desirable, Messrs. Stevens and Haynes have reprinted the two books in one volume, uniform with the preceding volumes of the series of Early Reports." — Canada Law yournal. KELYNGE'S (W.) REPORTS. In 8vo, 1873, price 4/. 4^-., calf antique, Kelynge's (William) Reports of Cases in Chancery, the King's Bench, &c., from the 3rd to the 9th year of his late Majesty King George II. , during which time Lord King was Chancellor, and the Lords Raymond and Hardwicke were Chief Justices of England. To, which are added, seventy New Cases not in the First Edition. Third Edition. In one handsome volume. 8vo. 1873. KELYNG'S (SIR JOHN) CROWN CASES. ! In 8vo, 1873, price 4/. 4^., calf antique, Kelyng's (Sir J.) Reports of Divers Cases in Pleas of the Crown in the Reign of King Charles II., with Directions to Justices of the Peace, and others; to which are added. Three Modern Cases, viz., Armstrong and Lisle, the King and Plummer, the Queen and Mawgridge. Third Edition, containing several additional Cases never before printed, together with a Treatise upon the Law and Proceed- ings IN Cases of High Treason, first published in 1793. The whole carefully revised and edited by Richard Loveland Loveland, of the Inner Temple, Barrister-at-Law. "We look upon this volume as one of the most important and valuable of the unique reprints of Messrs. Stevens and Haynes. Little do we know of the mines of legal wealth that lie buried in the old law books. But a careful examination, either of the reports or of the treatise embodied in the volume now before us, will give the reader some idea of the goodservice rendered by Messrs. Stevens andHaynes to the profe.«^sion. . . . Should occasion arise the Crown prosecutor, as well as counsel for the prisoner, will find in this volume a complete •uade mecum. of the law of high treason and proceedings in relation thereto." — Canada Law yournal. 36 STEVENS dr= HAYNES, BELL YARD, TEMPLE BAR. in one volume, Svo, price 25^., cloth, A eONCISE TREATISE ON PRIVATE INTERNATIONAL JURISPRUDENCE, BASED ON THE DECISIONS IN THE ENGLISH COURTS. By JOHN ALDERSON FOOTE, •F Lincoln's inn, barrister- at- law ; chancellor's legal medallist and senior whewell scholar OF international law CAMBRIDGE UNIVERSITY, 1873 ; SENIOR STUDENT IN JURISPRUDENCE AND ROMAN LAW, INNS OF COURT EXAMINATION, HILARY TERM, 1874. "Trhis work seems to us likely to prove of considerable use to all English lawyers who have to deal with questions of private international law. Since the publication of Mr. Westlake's valuable treatise, twenty years ago, the judicial decisions of English courts bearing upon diflferent parts of this subject have greatly increased in number, and it is full time that these decisions should be examined, and that the conclusions to be deduced from them should be systematically set forth in a treatise. Moreover, Mr. Foote has done this 'weW'—^olicitdrs^ journal. " Mr. Foote has done his work very well, and the book will be useful to all who have to deal with, the class of cases in which English law alone is not sufficient to settle the question." — Saturday Review^ March 8, 1879. "The author's object has been to reduce into order the mass of materials already accumulated in the' shape of explanation and actual decision on the interesting matter of which he treats ; and to construct a framework of private international law, not from the dicta of jurists so much as from judicial decisions in English Courts which have superseded them. And it is here, in compiling and arranging in ^ concise form this valuable material, that Mr. Foote's wide range of knowledge and legal acumen bear such good fruit. As a guide and assistant to the student of international law, the whole treatise will be invaluable : while a table of cases and a general index will enable him to find what he wants without trouble." — Standard. ' ' The recent decisions on points of international law (and there have been a large number since Westlake's publication) have been well stated. So far as we have observed, no case of any importance has been omitted, and the leading cases have been fully analysed. The author does not hesitate to criticise the grounds of a decision when these appear to him to conflict with the proper rule of law. Most of his criticisms seem to us very just On the whole, we can recommend Mr. Foote's treatise as a useful addition to our text-books, ah(i we expect it will rapidly find its way into the hands of practising lawyers." — The Journal of Jurisprudence and Scottish Law Magazine. , " Mr. Foote has evidently borne closely in mind the needs of Students of Jurisprudence as well as those of the Practitioners. For both, the fact that his work is almost entirely one of Case-law will commend It as one useful alike in Chambers and in Court." — Law Magazine and Review. " Mr. Foote's book will be useful to the student On^ of the best points of Mr. Foote's book is the ' Continuous Summary,* which occupies about thirty pages, and is divided into four parts — Persons, Property, Acts, and Procedure. Mr. Foote remarks that these summaries are not in any way intended as an attempt at codification. However that may be, they are a digest which reflects )iigh credit on the author's assiduity and capacity. They are ' meant merely to guide the student ; ' but they will do much more than guide him. They will enable him to get such a grasp of the subject as will render the reading of the text easy and fruitful." — Law Journal. *' This book is well adapted to be used both as a text-book for students and a book of reference for practicing barristers." — Bar E.^amination Journal. "This is a book which supplies the want which has long been felt for a really good modern treatise on Private International Law adapted to the every-day requirements of the English Practitioner. The whole volume although designed for the use of the practitioner, is so moderate in size — an octavo of 500 pages only — and the arrangement and development of the subject so well conceived and executed, that it will amply repay perusal by those whose immediate object may be not the actual decisions of a knotty point but the satisfactory disposal of an examination paper."— d., cloth. A COMPLETE TREATISE UPON THE NEW LAI OF PATENTS, DESIGNS, & TRADE MARKS, CONSISTING OF THE PATENTS, DESIGNS, AND TRADE MARKS ACT, 1883, WITH THE RULES AND FORMS, FULLY ANNOTATED WITH CASES, &c. And a Statement of the Principles of the Law upon those subjects, with a Time Table and Copious Index. By EDWARD MORTON DANIEL, OF Lincoln's inn, earrister-at-law, associate of the institute of patent agents. In 8vo, price %s. , cloth, The TRADE MARKS REGISTRATION ACT, 1875, And the Rules thereunder; THE MERCHANDISE MARKS ACT, 1862, with an Introduction containing a SUMMARY OF THE LAW OF TRADE MARKS, together with practical- Notes and Instructions, a,nd, a copious Index, By Edward Morton Daniel, of Lincoln's Inn, Barrister-at-Law. "The last .of the works HAYNES, BELL YARD, TEMPLE BAR. 45 Second Edition, in 8vo, price i8j., clotli, A TREATISE UPON THE LAW OF EXTRADITION, WITH THE CONVENTIONS UPON THE SUBJECT EXISTING BETWEEN ENGLAND AND FOREIGN NATIONS, AND THE CASES DECIDED THEREON. By EDWARD CLARKE, OF LINCOLN' " Mr. Clarke's accurate and sensible book is the ' best authority to which the English reader can turn upon the subject of Extradition."— ^a/i/rrf^jj' Revieiv. "The opinion we expressed of the merits of this work when it first appeared has been fully justified by the reputation it has gained. It is seldom we come across a book possessing so much interest to the general reader and at the same time furnishing so useful a guide to the lawyer."— 6'£>//czV{7rj' JoitrnaL "The appearance of a second edition of this treatise does not siurprise us. It is a useful book, well arranged and well written. A student who S INN, Q.C. wants to learn the principles and practice of the law of extradition will be greatly helped by Mr. Clarke. Lawyers who have extradition business will find this volume an excellent book of reference. Magistrates who have to administer the extradition law will be greatly assisted by a careful perusal of 'Clarke upon Extradition.' This may be called a warm commendation, but those who have read the book will not say it is unmerited." — Lanx) Joiinial. The Times of September 7, 1874, in a long article upon "Extradjtion Treaties," makes con- siderable use of this work, and lyrites of it as '* Mr. darkens useful Work on Exiradition." In 8vo, price zs. 6or., cloth, TABLES OF STAMP DUTIES FROM 1815 TO 1878. By WALTER ARTHUR COPINGER, OF THE MIDDLE TEMPLE, ESQUIRE, BARRISTER-AT-LAW I AUTHOR OF " THE LAW OF COPYRIGHT IN WORKS OF LITERATURE AND ART," " INDEX TO PRECEDENTS IN CONVEYANCING," "TITLE DEEDS," &C. " We think this little book ought to find its -way into a good many chambers and offices." — Soli' citors' Journal. "This book, or at least one containing the same amotmt of valuable and well-arranged information, should find a place in every Solicitor's office. It is of especial value when examining the abstract of a large number of old title deeds." — Law Times. ' His Tables of Stamp Duties^ fro7H 1815 to iSt'B, have already been tested in Chambers, and being now published, will materially lighten the labours of the profession in a tedious department, yet ope re- quiring great care." — Law Magazine aiik Review. In one volume, 8vo, price I4J-., cloth, TITLE DEEDS: THEIR CUSTODY, INSPECTION, AND PRODUCTION, AT LAW, IN EQUITY, AND IN MATTERS OF. CONVEYANCING, Including Covenants for the Production of Deeds and Attested Copies ; with an Appendix of Precedents, the Vendor and Purchaser Act, 1874, &c., &c., &c. By Walter Arthur Copinger, of the Middle Temple, Barrister-at-Law ; Author of " The Law of Copyright" and "Index to Precedents in Conveyancing." here. Mr. Copinger has supplied a much^felt want, by the compilation of this volume. We have not space to go into the details of the book ; it appears well arranged, clearly written, and fully elaborated. With these few remarks we recommend this volume "The literary execution of the work is good enough to invite quotation, but the volume is not large, and we content ourselves with recommending it to the profession." — Law Times. "A really good treatise on this subject must be essential to the lawyer : and this is what we have to our readers." — Law Journal. In 8vo, Second Edition, considerably enlarged, price 30^., cloth, THE LAW OF COPYRIGHT In Works of Literature and Art ; including that of the Drama, Music, Engraving, Sculpture, Painting, Photography, and Ornamental and Useful Designs ; together with International and Foreign Copyright, with the Statutes Relating thereto, and References to the English and American Decisions. By Walter Arthur Copinger, of the Middle Temple, Barrister-at-Law. merits which will, doubtless, lead to the placing of this edition on the shelves of the members of the profession whose business is concerned with copy- right ; and deservedly, for the book is one of con- "Mr. Copinger's book is very comprehensive, dealing with every branch of his subjedt, and even extending to copyright in foreign countries. So far as we have examined, we have found all the recent authorities noted up with scrupulous care, and there is an unusually good index. These are siderable value." — Solicitor^ journal. 46 STEVENS &= HAYNES, ±lja.i.i. y^KU, iiLivuri^j:. n^n. Second Edition, in One large Volume, 8vo, price 42^., cloth, A MAGISTERIAL AND POLICE GUIDE: BEING THE STATUTE LAW, INCLUDING THE SESSION 43 VICT. 1880. WITH NOTES AND REFERENCES TO THE DECIDED CASES, RELATING TO THE PROCEDURE, JURISDICTION, and DUTIES OF MAGISTRATES AND POLICE AUTHORITIES, IN THE METROPOLIS AND IN THE COUNTRY. With an Introduction showing the General Procedure before Magistrates both in Indictable and Summary Matters, as altered by the Summary - Jurisdiction Act, 1879, together with the Rules under the said Act. By henry C. greenwood, STIPENDIARY MAGISTRATE FOR THE DISTRICT OF THE STAFFORDSHIRE POTTERIES ; AND TEMPLE C. MARTIN, CHIEF CLERK OF THE LAMBETH POLICE COURT. , "A second edition has appeared of Messrs. Greenwood and Martin's valuable and comprehensive magisterial and police Guide, a book which Justices of the peace should take care to include in their Libraries." — Saturday Seview. " Hence it is that we rarely light upon a work which commands our confidence, not merely by its research, but also by its grasp of the subject of which it treats. The volume before us is one of the happy few of this latter class, and it is on this account that the public favour will certainly wait upon it. We are moreover convinced that no effort has been spared by its authors, to render it a thoroughly efficient and trustworthy guide." — Law Journal. ' ' Magistrates will find a valuable handbook in Messrs. Greenwood and Martin's 'Magisterial and Police Guide,' of which a fresh Edition has just been published." — The Times. ' ' A very valuable introduction, treating of proceedings before Magistrates, and largely of the Summary Jurisdiction Act, is in itself a treatise which will repay perusal. We expressed our high opinion of the Guide when it first appeared, and the favourable impression then produced is increased by our examination of this Second Edition. " — Law Times. " For the form of the work we have nothing but commendation. We may say we have here our ideal law book. It maybe said to omit nothing which it ought to contain." — Law Times. ' ' This handsome volume aims at presenting a comprehensive magisterial handbook for the whole of England. The mode, of arrangement seems to us excellent, and is well carried out." — Solicitors' Journal. " The Magisterial and Police Guide, by Mr. Henry Greenwood and Mr. Temple Martin, is a model work in its conciseness, and, so far as we have been able to test it, in completeness and accm'acy. It ought to be in the hands of all who, as magistrates or otherwise, have authority in Matters of police." — Daily News. " This work is eminently practical, andsupplies a real want. It plainly and concisely states the law on all points upon which Magistrates are called upon to adjudicate, syste- matically arranged, so as to be easy of reference. It ought to find a place on every Justice's table, and we cannot but think that its usefulness will speedily ensure for it as large a sale as its merits desei'ue. " — Midland Counties Herald. " The exceedingly arduous task of collecting together all the enactments on the subject has been ably and efficiently performed, and the arrangement is so methodical and precise that one is able to lay a finger on a Section of an Act almost in a moment. It is wonderful what a mass of information is comprised in so comparatively small a space. We have much pleasure in recommending the volume not only to our professional, but also to our ■general readers ; nothing can be more useful to the public than an acquaintance with the outlines ofmagisterial jurisdiction and procedure." — Sheffield Post. STEVENS &' HAYNES, BELL YARD, TEMPLE BAR. 47 Now published, in crown 8vo, price 4^., cloth, A HANDBOOK OF THE LAW OF PARLIAMENTARY REGISTRATION. WITH AN APPENDIX OF STATUTES AND FULL INDEX. By J. R. SEAGER, Registration Agent. In 8vo, price 5J. , cloth, post free, THE LAW OF PROMOTERS OF PUBLIC COMPANIES. By NEWMAN WATTS, OF Lincoln's inn, barrister-at-law. " Some recent cases in our law courts, which at the time attracted much public notice, have demon- strated the want of some clear and concise exposi- tion of the powers and liabilities of promoters, and this task has been ably performed by Mr. Newman Watts," — Investor's Guardian. " Mr. Watts has brought together all the lead- ing decisions relating to promoters and directors* and has arranged the information m, a very satisfac- tory manner, so as to readily show the rights of dinerent parties and the steps which can be legally taken by promoters to further interests of new com- panies.' — Daily Chronicle, In One VoL, 8vo, price I2J., cloth, A COMPENDIUM OF ROMAN LAW, JFounUElj on tije Enstttittes of Sfustinian } TOGETHER WITH EXAMINATION QUESTIONS SET IN THE UNIVERSITY AND BAR EXAMINATIONS (WITH SOLUTIONS), AND DEFINITIONS OF LEADING TERMS IN THE. WORDS OF THE PRINCIPAL AUTHORITIES. By GORDON CAMPBELL, Of the Inner Temple, M.A., late Scholar of Exeter College, Oxford; M.A. Trinity College, Cambridge; Author of "An Analysis of Austin's Jurisprudence, or the Philosophy of Positive Law. " " Mr. Campbell, in producing a compendium of the Roman law, has gone to the best English works already existing on the subject, and has made ex- cellent use of the materials found in them. The volume is especially intended for the use of students who have to pass an examination in Roman law, and its arrangement with a view to this end appears very good. The existence, of text-books such as this should do much to prevent the evil system ot cramming." — Saturday Revievj, In 8vo, price ^s. 6(i., cloth, TITLES TO MINES IN THE UNITED STATES, WITH THE STATUTES AND REFERENCES TO THE DECISIONS OF THE COURTS RELATING THERETO. By W. a. HARRIS, B.A., Oxon., qr LINCOLN'S INN, BARRISTER-AT-LAW ; AND OF THE AMERICAN BAR. 48 STEVENS &• HAYNES, BELL YARD, TEMPLE BAR. INDEX TO THE NAMES OF AUTHORS AND EDITORS OF WORKS ENUMERATED IN THIS CATALOGUE. Aldred (P. F.), page 21. Akgles (N.), 32. Baldwin (E. T.), iS- Banning (H. T.), 42. Barton (G. B.), 18. Bellewe (R.), 34- Blyth (E. E.), 22. Brice (Seward), 9, 16. Brooke (Sir R.), 35- Brown (Archibald), 20, 22, 26, 33. Browne (J. H. Balfour), 19. Buchanan (J.), 38. Buckley (H. B.), 17. Bucknill (T. T.), 34. 35- BusHBY (H. J.), 33- Campbell (Gordon), 47. Campbell (Robert), 9, 40. Chalmers (M. D.), 10. Clarke (Edward), 45. COGHLAN (W. M.), 28. Cooke (SirG.), 35- Cooke (Hugh), 10. CopiNGER (W. A.), 40, 42, 45. Corner (R. J.), 10. Cunningham (H. S.), 38, 42. Cunningham (John), 7. Cunningham (T.), 34- Daniel (E. M.), 42. Deane (H. C), 23. De Wal (J.), 38. DOUTRE (J.), 18. Edwards (W. D.)> 39- Elgood (E. J.), 18. Elliott (G.), 14. Emden (A.), 8, II. Evans (G.), 32. eversley (w. p. ), 9. FiNLASON (W. F.), 32. Flaxman (A. J.), 43. FooTE (J. Alderson), 36. Forbes (U. A.), 18. Forsyth (W.), 14. Gibbs (F. W.), 10. Godefroi (H.), 14. Greenwood (H. C.), 46. Griffith (J. R. ), 40. Grigsby (W. E.), 43 Grotius (Hugo), 38. Hall (R. G.), 30. Hanson (A.), 10. Hardcastle (H.), 9, 33. Harris (Seym6ur F. ), 20, 27. Harris (W. A.), 47. Harrison (J. C), 23. Harwood (R. G.), 10. Hazlitt (W.), 29. Higgixs (C), 12, 30. Houston (J.), page 32. Indermaur (John), 24, 25, 28. Jones (E.), 14. Joyce (W.), 44. Kay (Joseph), 17. Kelke(W. H.), 6. Kelyng (Sir'J.), 35. Kelynge (W.), 35. KOTZE (J. G.), 38. Lloyd (Eyre), 13. Locke (J.), 32. LOR"ENZ (C. A,), 38. Loveland (R. L.), 30, 34, 35. Maasdorp (A. F. S.), 38. Macaskie (S. C), 7. March (John), 35. Marcy (G. N.), 26. Marsh (Thomas), 21. Martin (Temple C), 46. Mattinson (M. W.), 7. May (H. W.), 29. Mayne (John D.), 31, 38. Menzies (W.), 38. O'Malley (E. L. ), 33. Peile (C. j.), 7. Pemberton (L. L.), 32. Porter (J. B.), 6. Reilly (F. S.), 29. RlNGWOOD (R.), 15, 29. Robinson (W. G. ), 32. Savigny (F. C. Von), 20. Seager (J. R.), 47. Short (F. H.), 10, 41. Shortt (John), 14. Shower (Sir B.), 34. Simmons (F.), 6. - Simpson (A. H.), 43. Smith (Eustace), 23, 39. Smith (F. J.), 6. Smith (Lumley), 31. Snell (E. H. T.), 22. Story, 43. Tarring (C. J.), 26, 41. Taswell-Langmead, 21. Thomas (Ernest C), 28. Tyssen (A. X);)v 39. Van der Keesel (D. G.)> 38. Van Leeuwen, 38. Waite (W. T.), 22 Walker (W. G.), 6, iS, 43. Watts (C. N.), 47! Whiteford (F. M.), 20. Williams (S. E.), 7. Worthington (S. W.), 29, 40. LONDON : BRADBURY, AGNEW, & CO., PRINTERS, WHITEFRIARS, E.C.