THE UNIVERSITY OF ILLINOIS LIBRARY 1Q>& tCUNUMIM THE , i' LAW FIRE AND LIFE INSURANCE AND ANNUITIES, WITH PRACTICAL OBSERVATIONS. PART I.—THE LAW OF FIRE INSURANCE. PART II.—THE LAW OF LIFE INSURANCE. PART III.—THE LAW OF ANNUITIES. BY CHARLES ELLIS, OF LINCOLN’S INN, ESQ. *» % BARRISTER AT LAW. LONDON: SAUNDERS AND BENNING, LAW BOOKSELLERS, (successors to j. butterworth and son,) 43, FLEET STREET. 1832. L O N D O N : PRINTED BY C. ROWORTll AND SONS, BELL YARD, TEMPLE BAR. ’$\cX> , ? PREFACE. O <0 o c£ The Law of Fire and Life Insurance has not hitherto been made the subject of a distinct work, but has been embraced in a few Chapters at the N conclusion of Treatises on Marine Insurance. Valuable as these works are upon the lattef sub¬ ject, the former contracts appear, to have been less elaborately treated than their general and growing importance appears to deserve. The circum- ~ stance may be accounted for by the fact, that these contracts have been, until within a few years, of comparatively confined extent, and con¬ sequently few cases would arise in which they would become the subjects of legal discussion ; C but so general has the practice of both these branches of Insurance become of late, and so ex¬ tensively is it increasing, that most persons of property in the kingdom are interested in the proper understanding of the legal nature of these contracts. Some notion may be formed of the relative importance to the revenue and extent of Insurance IV PREFACE. against Fire, from the fact, that in the year 1830 the sum of <£768,855 was paid for duties, at the rate of 3 s. on every £100 insured, and Is. upon the policy; whilst in the same year the sum of £220,007 was paid for duties on Marine Insurance, at about the same average rate of duty per cent. The attention of the author has been of neces¬ sity directed to these subjects, in consequence of his being professionally connected with two offices of very extensive business, and in addition to the experience which that connection afforded him, he has been obligingly favoured by them with much valuable information upon the details and practical operations of business: he trusts, therefore, that the following pages will not be found useless to the legal profession or the public. As the practice of granting Annuities is common with Companies engaged in the department of Life Insurance, the author thought that a few Chapters affording a concise view of the law upon that subject, embracing the latest decisions and statutes, would tend to render the work more complete; and with the same object he has added a few practical remarks on the application of Life Insurance to the various purposes of Provisions and Endowments for Families, Indemnities in cases of Estates determinable on Lives, and Securities for Debts or Annuities. CONTENTS. PART I. THE LAW OF FIRE INSURANCE. CHAPTER I. Page. 1. General Nature of a Policy of Insurance . . . 1 2. A clear Right of Action should be contained . . 2 3. Parties interested to be inserted in it . . . .10 4. Indorsements and conditions of the Policy . . .11 5. Duties payable in respect of Policies, and the Amount Insured . . . . . . . .17 CHAPTER II. Of the interest of the insured .... 21, 28 CHAPTER III. The nature and extent of the risk for which the insurers undertake . . . . .24 1. Damage by heat in the process of manufacture without ignition ........ 25 2. Insurance of specific articles to be construed by the general scope of the policy . . 27 3. Breach of Warranty and the nature of Warranties . ib. 4. Of Misrepresentation of material Facts . . .29 5. Concealment of material Facts . . . . .38 C. Construction of the words “ Usurped Power . .41 7. Construction of the words “ Civil Commotion . .42 8. Right of an Office to stand in the place of the Insured as against the Hundred . . . . .45 9. Commencement and duration of the Contract . . 49 VI CONTENTS. Page. 10. Effect of Notice by an Office to determine a contract except upon payment of a higher Premium, and of the fifteen days allowed for payment of Pre¬ miums . . . . . . . .51 11. A nominal misdescription and the necessary introduc¬ tion of fire into a building, covered by the com¬ mon Insurance . . . . . . .58 CHAPTER IV. i Of the proof of loss . . . . . . .61 CHAPTER V. Of fraudulent losses ....... 66 CHAPTER VI. Of assignment of policies 1. Assignment in General ...... 69 2. Assignment of Policy after the Fire happens, with pos¬ session of the Property insured before the Fire . ib. CHAPTER VII. 1. Of the Agents for Offices . . . . . .78 2. Privity between the Crown and the Agents . . . ib. 3. Of the Agents for the Insured . . . . .79 CHAPTER VIII. Of equities attaching upon policies . . . .81 1. In general no Equity as between Landlord and Tenant ib. 2. Proceeds of Policies in general payable to Executors, &c. 84 3. But where affected with a trust they may be payable to heir or devisee ....... 86 CHAPTER IX. Of proceedings on policies of insurance against fire . 88 1. Jurisdiction of the Courts of Law .... ib. CONTENTS. Vll Page. 2. Arbitration ........ 89 3. Declaration ........ 90 4. Pleas to a declaration upon a policy under seal . .91 5. Evidence upon the trial ...... 93 CHAPTER X. Of the recovery back of losses improperly paid . . 95 PART II. THE LAW OF LIFE INSURANCE. CHAPTER I. Of the nature of the contract . . . . .97 1. General nature of life insurance . . . . . ib. 2. The different purposes to which life insurance may be applied ........ 99 3. Mode of effecting a life insurance .... ib. 4. The form of a policy . . . . . .101 CHAPTER II. Of the warranty of the age and health of the party to be insured, and of misrepresentation and concealment ....... 105 1. Warranty to be strictly true . . . . . ib. 2. As to the clause that the party to be insured “ is in good health at the time of making the Policy.” 106 3. As to the clause that the party to be insured has “ no disease tending to shorten life ” . . .110 4. Concealment of material facts . . . . .111 5. Reference to the “ usual medical attendant ” of the party to be insured . . . . . .119 Vlll CONTENTS. CHAPTER III. Page. Of the interest in the life insured .... 122 1. General principles ....... ib. 2. Interest of creditor in the life of a debtor . . .124 3. Interest of trustee on behalf of cestui que trust . . 127 4. Debtor or grantor of annuity insuring . . . ib. CHAPTER IV. Of the risk and its duration . . . . .129 1. The death must take place during the continuance of the policy, in order to entitle a person to recover ib. 2. Construction of the rules of a society as to payment of premiums within fifteen days after they become due . . . . . . . . .150 3. Of the words “ from the day of the date,” and from . the date . . . . . . . .136 4. Of the recovery of interest upon sums due upon poli¬ cies ......... zb. 5. Accumulations upon policies . . . . .140 6. Recovery back of premiums . . . . . ib. CHAPTER V. Of assignments of policies of assurance upon lives . 143 1. Of assignment in general ...... ib. 2. Of notice to the office ..... 144, 154 CHAPTER VI. Of the attachment of equities to policies of insurance ON life in favour of third persons . . . 155 1. In general no Equity in favour of third persons . . ib. 2. An Equity may attach in cases of trust . . .157 CHAPTER VII. Of the Agents . 160 CONTENTS. IX CHAPTER VIII. Page. Of proceedings in actions on policies of insurance UPON LIVES. 161 CHAPTER IX. Of the application of life insurance to FORMING EN¬ DOWMENTS AND MAKING PROVISION FOR FAMILIES AND FOR SECURITY OF DEBTS . . . .164 1. Where the income terminates with life . . . ib. 2. Where the income is to be transmitted to an individual of a family ....... ib. 3. Where the sum insured is to be paid to a parent on a child attaining a certain age . . . .166 4. Where the life of a child is insured to whom an advance has been made ....... ib. 5. Where the creditor insures his debtor’s life . . . . 167 6. Insurance money settled upon marriage . . .168 7. Insurance for the purpose of meeting fines payable on the dropping of a life or lives . . . .170 8. Insurance by way of security on an annuity transaction. 171 PART III. THE LAW OF ANNUITIES. CHAPTER I. On annuities for lives ....... 173 1. General nature of annuities . . . . . ib. 2. An annuity not subject to the Usury Laws . . .174 3. Not in general liable to be set aside for mere inadequacy of price . . . . . . . .175 4. A clause of redemption does not make an annuity usurious . . . . . . . .177 5. Of the modes of securing annuities . . . .179 X CONTENTS. Page. 6. Pay and half-pay of Officers in the Army and Navy cannot be assigned as a security . . . .181 7. Benefices in the church not assignable . . . .182 8. Annuity for immoral consideration or against public policy, voidable. . . . . . .183 9. Of the Bankruptcy of the grantor of an annuity and proof under the commission .... ib. 10. Of the surety of a grantor bankrupt . . . . 18G 11. Of the surety in general . . . . . .188 12. The stamp duties . . . . . . .189 CHAPTER II. Construction of the statutes concerning annuities . 194 1. By statute 17 Geo. 3. c. 26, a memorial of every deed granting an annuity to be enrolled . . . ib. 2. By statute 53 Geo. 3. c. 141, a memorial of the date, &c. of every deed to be enrolled . . .197 3. Contents of memorial ....... 202 4. The witnesses ........ 205 5. The consideration ....... 206 6. The exceptions of the Acts where no memorial is neces¬ sary ......... 209 CHAPTER III. Of the proceedings in respect of annuities . . .212 1. Jurisdiction of the Courts of Law .... ib. 2. Jurisdiction of the Courts of Law under the statutes and their general jurisdiction . . . 212, 213 3. Jurisdiction of the Courts of Equity .... 215 CONTENTS. xi APPENDIX. Fa & e ' No. I. Average clause in a policy of insurance against fire 221 No. II. The collection and payment of the duties on fire insurance by the offices, under statute 55 Geo. 3. c. 184, s. 32 . . . . . .221 No. III. Form of Policy of Insurance against fire by the Corporation of the Royal Exchange Assurance of houses and goods from fire . . . .224 No. IV. Form of Policy of Insurance against fire by the Protector Fire Insurance Company . . . 220 No. V. Indorsement of policy of Insurance against fire on removal of property . . . . . .229 No. VI. Transfer of policy on conveyance of interest by purchase or gift....... ib. No. VII. Memorandum to be indorsed on a policy in case of an addition ....... ib. No. VIII. Form of policy of insurance upon a life by the Equitable ........ 230 No. IX. Form of policy of insurance on the life of a third person by the Crown Life Insurance Company . 232 No. X. Heads of indenture of assignment of a policy of insurance on life as a security for a debt . . 236 No. XI. Form of memorial of annuity (53 Geo. 3. c. 141) 238 No. XII. Bond for securing an annuity .... 239 No. XIII. Grant of annuity secured on real estate . . 241 r r * .. ♦ ■ . - . ■ • ■ NAMES OF CASES CITED Page Alchorne v. Saville. 2 Amhurst v. Skinner. 209 Amstead v. Atkins. 216 Anderson v. Edie. 125 Andrews v. Ellison. 4 Andrews, ex parte . 157 Angell v. Hadden. 218 Artis, ex parte . 184 Ashley v. Ashley. 143 Aston v. Gwinnett.208, 211 Austen v. Drewe .25, 60 Barber v. Garason. 203 Barber v. Morris.124, 167 Bean v. Stupart. 29 Berry v. Bentley. 207 Bilbie v. Lumley. 95 Bize v. Fletcher. 29 Blake v. Attersol. 210 Bolland v. Disney. 103 Bolton, Duke of, v. Williams, 204,216 Bradford v. Burland. 203 Bromhead v. Eyre.207, 213 Bromley v. Holland. 216 Brown v. Quilter. 81 -v. Ley. 211 -v. Dowthwaite. 210 Buck v. Tyte. 214 Bufev. Turner.40, 114 Burton, ex parte . 151 Byas, ex parte. 148 Byne v. Potter. 216 -v. Vivian. 215 Calton v. Bragg. 138 -v. Porter. 109 Campbell v. French. 65 Carter v. Boehm . 38 Chapman v. Fraser ....! . 141 Charretie v. Vause.203 Chawner v. Whaley. 202 Cheek v. Jefferies.206 Chester, ex parte .204, 213 Chapman v. Fraser. 141 Chesterfield, Lord, v. Janssen, 171, 174 Chitty v. Selwin .. 88 Page Coles v. Trecothick. 177 Colvill, ex parte . 148 Cooper v. Fynmore . 51 Court v. Phillips. 216 Courtney v. Ferris.140, 166 Cousins v. Thomson. 206 Crespigny v. Wittenoom.210 Crowther v. Wentworth . 203 Da Costa v. Scanderet. 141 Dartnall v. Marquis Wellesley.. 216 Darwin v. Lincoln.... 188,205, 210 Davidson v. Lord Foley .203 Davis v. Geldart . 14 - v. Duke of Marlborough.. 218 Dearie v. Hall. 151 De Ghekoff v. London Assu¬ rance Company. 88 De Haviland v. Bowerbank .... 139 Delany v. Stoddart . 76 Dobson v. Sotheby . 58 Doe, d. Mason, v. Phillips .... 207 -d. Pitt v. Laing . 60 Drake v. Rogers .207 Drinkwater v. the London As¬ surance Company. 41 D uckett v. Williams. 142 Duff v. Atkinson .197, 210 Duffell v. Wilson. 141 Dunn v. Calcraft. 210 Dwyer v. Edie. 127 Edwards v. Barrow. 116 Everett v. Desborough. 119 Falkener’s case. 148 Farrington’s case. 68 Finlay v. Gardner.209 Fisher, ex parte. 185 Fitzherbert v. Mather. 12 Flarty v. Odium . 181 Flight v. Buckeridge. 205 France v. Bolton . 183 Garrood v. Saunders. 213 Gartside v. Isherwood. 177 Girdlestone v. Allan . 214 XIV NAMES OF CASES CITED. Godsal v. Boldero.125, 157 Gomez v. Graham. 181 Gordon v. Swan. 139 Gorton v. Champneys. 209 Gray v. Mathias. 183 Greathead v. Bromley. 214 Griffith v. Spratley. 177 Gwynne v. Heaton . 220 Halsey v. Hales... 209 Hare v. Groves. 82 Harrington v. Duchattel. 183 Hart v. Lovelace.204, 205 Hartwell v. Hartwell. 183 Hawkeswood’s case. 67 Haynes v. Hare. 214 Heathcote v. Paignon, 175, 184, 185 220 Henderson v. Countess of Glen- cairn . 204 Henry v. Taylor. 208 Herbert v. Champion. 95 Hibbert v. Carter. 76 --v. Pigou . 28 Hicks v. Hicks. 220 Higgins v. Sargent. 137 Hill v. Spencer. 183 Hoffman v. Cooke. 220 Holland v. Pelham . 127 Holtzapfell v. Baker. 82 Hood v. Burlton.202 Howard’s (Sir Robert) case ... 136 Hudson v. Morgan. 211 -v. Skinner. 210 Huguenin v. Bayley. 119 Ince v. Everard. 207 Irnham v. Child. 178 James, ex parte. 185 -v. James.203, 209 Jones v. Gibbons. 150 -v. Harris. 219 -v. Silverchildt. 209 Kelfe v. Ambrosse. 208 Kenyon v. Berthon. 29 Key, ex parte .. 186 Kill v. Hollister.. 89 Kirkman v. Price. 207 La Compte, ex parte. 184 Langdale v. Mason. 43 Lawley v. Cooper. 178 Leeds v. Cheetham.82, 157 Le Fevre v. Royle. 163 Levi v. Baillie. 15 Lindenau v. Desborough. Ill Lockyer v. Offley. 129 Loveridge v. Cooper, 151,152,154,180 Page Lowry v. Bourdieu. 23 Lynch v. Dalzell.21, 70 -v. Dunston..... 39 Mackenzie, ex parte. 202 Mackreth, ex parte.205, 216 Mason v. Sainsbury. 45 Maynard v. Rhodes.119, 121 Mence v. Hammond. 109 Metcalfe v. Bowes. 206 Michell, ex parte.207, 209 Mildmay v. Folgharn. 85 Monro, ex parte.147, 149 Monys v. Leake. 207 Morris v. Wall. 207 Morrison v. Muspratt.113, 117 Motteux v. London Assurance Company. 88 Murray v. Harding.175, 178 Newby v. Read. 14 Newcastle Company v. Mac- morran.28, 30 Norris v. Harrison. 86 Nurse v. Wilson. 171 O’Callaghan v. lngilby.204 Oldham v. Bewicke.40, 62 Osborne, ex parte. 141 Osborne v. Williams. 183 Paris v. Gilham. 89 Parry v. Ashley. 87 Pattinson v. Black. 130 Pawson v. Barneveldt. 29 Peter v. Rich. 189 Phillips v. Const. 206 - v. Crawford. 207 Poole v. Cabanes.207, 214 Radcliefe v. Shoolbred. 38 Reculist’s case. 67 Rex v. Gillson. 66 -v. Doran. 67 -v. Wrangham.. 79 Rhind v. Wilkinson. 77 Richardson, ex parte.147, 149 Rickman’s case. 68 Roberts v. Fonnereau. 12 Rogers v. Davis. 14 Ross v. Bradshaw. 106 Routh v. Thompson. 141 Routledge v. Burrell. 40 Row v. Dawson. 149 Rumball v. Murray. 207 Ryal v. Rowles. 150 Sadlers’ Company v. Badcock,21,73 Salvin v. James. 52 Sandilands v. Marsh. 188 NAMES OF CASES CITED. XV Page Saunders v. Wright. 210 Schumann v. Wetherhead. .192, 214 Scurfield v. Gowland. 220 Seaman v. Fonnereau. 39 Shaw, ex parte. 186 -v. Dartnall. 188 -v. Woodcock. 188 Sherson v. Oxlade. 203 Shove v. Webb. 220 Smith v. Pritchard. 205 -ex parte . 149 Spencer v. Cox. 181 Stackpole v. Simon .. 109 Steadman v. Purchase.215 Stone v. Lidderdale. 181 Storton v. Tomlins. 215 Stuart v. Tucker. 181 Symonds v. Cobourne . 213 Tarleton v. Stainforth.50, 55 Tetley v. Tetley. 204 Thistlewood, ex parte, 174, 184, 185 Thompson v. Charnock. 89 Thorowgood v. Marsh. 22 Thurkill v. Wallace.....213 Tidswell v. Angerstein. 127 Tucker v. Thurston. 209 Tyler v. Horne. 141 Tyrie v. Fletcher. 141 Usborne, ex parte. 147 Van Braam v. Isaacs .. ..203, 215 Page Vauxhall Bridge Company, ex parte. 147 Walford v. Marchant. 209 Wallace v. Telfair. 80 Wallis v. Lade. 205 Want v. Blunt. 131 Wasburn v. Birch. 207 Watchorn v. Langford. 27 Waters v. Mansell. 220 Watkins v. Flannagan. 187 Watson v. Bratton. 155 -v. Mainwaring, 108, 109, 110 Watts v. Millard. 207 -v. Smith. 205 Welsh v. Welsh. 187 Weston v. Ernes. 93 White v. the Bishop of Peterbo¬ rough. 183 Whitehead, ex parte.177, 185 Whittingham v. Thornburgh, 97, 141 Williams v. Hockin. 109 -v. Thorpe..... 144 Williamson v. Gould.188, 208 Willis v. Poole. 108 Wilkinson v. Coverdale. 79 Wilson v. Ducket. 141 Winter v. Mousley . 186 Witley v. Woolley.214 Wood v. Worsley.40, 62 Wright, ex parte.185, 218 Wright v. Reed. 206 Yates v. Elliot. 181 Yems v. Smith. 204 • . ' • - , • . % /■ • ■ THE LAW OF FIRE INSURANCE. CHAPTER I. OF THE NATURE OF THE CONTRACT. \ 1. General nature of a Policy of Insurance. 2. A clear Right of Action should he contained in it. 3. Parties interested to he inserted in it. 4. Indorsements and Conditions of the Policy. 5. Duties Payable in respect of Policies and the Amount Insured. 1. This contract is in the nature of an indemnity given by the insurers against such loss or damage by fire as may happen to the insured in respect of the houses, buildings, stock, merchandize, or other articles covered by the policy. The insurers, after reciting the receipt of the premium, The nature of a usually covenant and agree , or undertake, that from the P ollc y of m : day named in the policy unto and inclusive of another day fire, named in the policy, and so long as the insured shall pay or cause to be paid the premium agreed upon, and the insurers shall accept the same, the stock and funds of the (Company) shall be liable to make good any such loss or damage as shall happen by fire, (except loss or damage by fire happening by any invasion, foreign enemy, civil com¬ motion, or riot, or any military or usurped power,) to the property specified. B LAW OF FIRE INSURANCE. The parties in¬ sured should have a clear right of action against the par¬ ties subscribing or executing the policy. Where a policy by deed de¬ clared that the directors exe¬ cuting did order, direct, and ap¬ point the direc¬ tors for the time being to raise and pay out of the monies, &c. and further re¬ ferred to certain agreements and conditions of the policy, but there was no express cove¬ nant or agree¬ ment on the part of such directors: it was held, that an action for the amount of the Several of the exceptions in policies have at different times been the subject of litigation, as to their extent and meaning, which will be considered in their proper places. 2. It is very important to the insured that they should have a clear right of action against the parties subscribing or executing the policy, to the extent of the funds of the society; that right should not be confined to a mere order for payment to be made by the subscribing directors upon the general body of the directors or the company,(a) for an action in such a case will not be maintainable against the parties executing , or the directors generally. Upon a case sent by the direction of the Vice-Chancel¬ lor for the opinion of the Judges of the Court of King’s Bench, (b) the question was, whether an action would lie under the following circumstances:—On the 20th of May, 1811, the plaintiffs insured a certain house and premises in which they were interested in the Hand in Hand Fire In¬ surance Office. The policy was made and duly executed by T. F., N. W., and J. M., as three of the trustees and directors of the office, whereby, in consideration of the sum of 4/. 10s. the premises valued at 1800/. were insured for the term of one year from the date thereof. The policy, after reciting that the plaintiffs had paid into the treasury of the amicable contribution or society, commonly called the Hand in Hand Contributionship or Society, for the insuring of houses and goods from loss or damage by fire, the sum above mentioned, for the purpose above mentioned, proceeded to declare as follows: “ now we the trustees and directors of the said society whose names are hereunto subscribed, do order, direct , and appoint the directors for the time being of the said society to raise and pay by and out of the monies, securities, and effects of the said contri¬ butionship, pursuant and according to certain deeds and («) When the Protector Fire Office was instituted the policy was laid before one of the most eminent common lawyers, and one equally eminent as a con¬ veyancer, for the purpose of giving the public the best security upon this subject. ( b ) Alchorne v, Saville and others, 6 Moore’s Rep. 202, n. OF THE NATURE OF THE CONTRACT. 3 settlements,” &c. The instrument, after declaring that the order thus mentioned should comprehend either a total or partial loss by fire, proceeded as follows '“ provided and it is hereby declared and agreed, that when any assignment shall be made of this policy, such assignment shall be en¬ tered in the office book within ninety days from the date thereof, &c. and also, that if at the expiration of one year from the date thereof, the said plaintiffs shall again pay the sum of 4/. 10s. then all the conditions and agreements of this policy shall remain in full force for the further term of one year, and so shall be continued from year to year as often as the said sum of 4 1. 10s. shall be paid by the plaintiffs, and the directors for the time being shall agree thereto by accepting or receiving the same. In witness, &c.” The policy was signed by J. F., N. W., and J. M., three of the trustees and directors of the said office, and sealed and delivered duly stamped and attested. The plaintiffs having sustained a loss by fire, and the defendants having refused to pay within the time prescribed by the policy, a bill was filed in Chancery against the latter as acting trustees and directors of the office, praying that the Court would decree the payment of the loss which the plaintiffs had sustained, and the above case was sent for the opinion of the Court of King’s Bench. Lord C. J. Abbott.—“ I can find nothing in this policy by which the defendants covenanted to pay the loss which the plaintiffs have sustained. The deed only imports that the trustees and directors for the time being who execute it, do hereby order , direct, and appoint the trustees and directors for the time being to pay the loss, in case it should happen, out of the funds belonging to the society. It does not appear to me that the latter words in the policy can have the effect of making that an agreement, which upon the face of it appears to be only an order for the payment of money. It never could be intended that this instrument so prepared should have the effect of making the trus¬ tees and directors for the time being personally liable; no¬ thing could be more difficult than for a company of this b 2 loss would not lie against the directors and trustees not par¬ ties to the deed, or against the directors exe¬ cuting. 4 LAW OF FIRE INSURANCE. But the words “ stipulated and declared,” have been held to give an action of covenant against direc¬ tors executing the policy. description to find acting trustees who would personally pay all the policies which the company might think fit to execute. It therefore appears to me that the only remedy the plaintiffs have is in equity, and they cannot turn round and treat this as a covenant at law. I admit that where a party executes an instrument and thereby says, “ I agree to do so and so,” he would be liable to an action of cove¬ nant, but how could a declaration in covenant be framed in this case, either against the defendants or the parties who have executed the policy? As against the latter, no such declaration could be drawn, because the policy imports nothing but an order upon other persons to pay the loss in case it should happen; and as against the former, sup¬ posing the instrument to have the effect of an agreement, the action would not lie, because it does not appear that they have executed it. This policy imports nothing but an order, and not an agreement , I am therefore of opinion that an action of covenant cannot be maintained.” The rest of the Court were of the same opinion. This case of Alchorne v. Saville was cited as an authority in the case of Andrewes v. Ellison and others. ( a ) This was an action of covenant on a policy of insurance, exe¬ cuted by the defendants under seal, to indemnify the plain¬ tiffs against a loss by fire. The declaration stated, that the defendants, on the 9th of December, 1819, as three of the directors of the National Union Fire Association, made a certain deed-poll, commonly called a policy of assurance, whereby, after reciting that the defendants, as such direc¬ tors, had admitted the plaintiff to be a member upon the terms, covenants, and conditions prescribed by the deed of settlement of the said association; and that the plaintiff' had consented to become a member accordingly, and had subscribed the sum of 6s. being the consideration-money for one year’s insurance from the 25th of December, 1819, and that so long as he should continue to pay the same sum annually on that day, he should be entitled to a re¬ muneration out of the society’s funds in case of loss by fire (a) 6 Moore, 199. OF THE NATURE OF THE CONTRACT. 5 to all or any of the property thereinafter mentioned, not ex¬ ceeding for each item respectively the sum set against the same, viz. 20(P. on his household furniture, &c. in his then brick built dwellinghouse; it was declared , that in case of loss by fire happening to any of the above-mentioned property while such subscription should be regularly depo¬ sited, the society was to pay according to the deed of set¬ tlement to the plaintiff all such loss and damage, not ex¬ ceeding the sum set against each article respectively, as he might sustain thereto by fire; and it was further stipulated and thereby declared , that neither of them the said direc¬ tors who subscribed the said deed-poll or policy of assurance, nor the plaintiff, as the holder of the policy, should, as members of the said society, be subject or liable to any de¬ mand for any loss or losses, except under the articles esta¬ blishing the said society as was provided by the same. The declaration then set out certain articles and conditions referred to in the policy, and subject to which it was ef¬ fected, (a) and concluded by the usual averments. Several special pleas were pleaded, and on these pleas issues were joined. The cause came on for trial before Lord Chief Justice Dallas, when the jury found a general verdict for the plaintiff. Serjeant Pell afterwards obtained a rule nisi that the judgment might be arrested, on the ground that there was (a) By the eighth of which it was provided, that whenever losses should happen, the parties were to give immediate notice thereof to the secretary, or to the nearest agent, that a view might be taken and the damage estimated, and also deliver under their hands the amount and particulars of their claim on the office, and make out the same by the oaths or affirmations of themselves, or by their domestics or servants, .books or vouchersand procure certificates of the ministers, chuffchwardens., neighbours,,or inhabitants, not interested in such loss, if they, were required by the directors so .to do. .The loss or damage sus¬ tained to be made good within ninety days after the same happened, or as soon as the amount coulcl be properly ascertained, either by the payment of the sum insured, or by repairing or rebuilding the premises destroyed or damaged, as far as the 'sum insured would allow, at the option of the directors. By the ninth article it was stipulated that the office would not make good any losses by fire occasioned by foreign enemies, civil commotions, or any military or usurped power, or in consequence of explosion of gunpowder or steam. 6 LAW OF FIRE INSURANCE, nothing on ihe face of the policy, or in the declaration , to import any covenant or agreement in law to support the action, or render the defendant liable to pay the loss in question. He submitted that the plaintiff’s only remedy was in equity, and relied on the case of Alchorne v. Sa- ville, (a) as bearing a near resemblance to the present, and in which the Court of King’s Bench had decided, that an action of covenant could not be maintained, although the words in the proviso there were “ declared and agreed,” while the words “ stipulated and declared” only were adopted here. Serjeants Vaughan and Hullock showed cause contrd. Lord Chief Justice Dallas.—“ It has been admitted in the course of the argument that no precise or technical words are necessary to create a covenant, but that whether it be so or not depends upon the intention of the parties. This, therefore, narrows the consideration of the present question to the words contained in the policy on which this action is brought; and although there are no precise words in that instrument, still the defendants have stipulated and declared that neither of them as directors of the association, or as members of the society, should be subject or liable to any demand for loss or losses, except under the articles for establishing the society, and as is provided by the same. In the reasonable construction of this stipulation it amounts to an express agreement, and the instrument may be con¬ sidered as a covenant to entitle the insurer, in case of loss by fire, to receive a remuneration out of the funds of the society to the extent of such funds, as the defendants have expressly declared that the society would be responsible, but they have limited such responsibility to the sufficiency of their funds. The plain and obvious meaning therefore appears to me to be, that the association are liable to the extent of their funds ; and consequently that the defendants, as three of the directors, have entered into an express agreement to be responsible to the plaintiff as far as the (a) Ubi supra. OF THE NATURE OF THE CONTRACT. 7 funds of the society will allow. The case is altogether dis¬ tinguishable from the case of Alchorne v. Saville, as here the defendants have executed the deed, but there they were not parties to it, they only ordered the directors of the society for the time being to do particular things, viz. to raise and pay out of the monies and securities of the contri- butionship according to certain deeds and settlements, and the Court of King’s Bench decided that they were not per¬ sonally liable, as it was not their deed, and as they merely appointed other persons to pay a loss, in case it should happen, out of the funds belonging to the society. Here, however, the defendants covenanted to pay, if the funds of the society should be adequate. That, therefore, puts an end to the question. Besides, the breach assigned by the plaintiff in his declaration is sufficient, for lie states that, although the funds of the association were adequate to pay, yet that the defendants refused to do so. As this case, therefore, is so mainly distinguishable from that of Alchorne v. Saville, I have no doubt that the plaintiff is entitled to recover, and more particularly so, as the policy in question was signed by the defendants, who agreed or covenanted to be themselves personally liable as far as the funds of the society would extend; and the Court will not arrest judg¬ ment after trial, unless it be obvious and clear that there is some material ground on which they are enabled to do so, all the pleas on the record having been negatived by the jury. I therefore think there is no substantial ground whatever for arresting this judgment.” Mr. Justice Parke was of the same opinion. t( This case differs from that of Alchorne v. Saville, which was a special case, sent by the Vice-Chancellor for the opinion of the Court of King’s Bench, in which it was expressly stated that the defendants merely ordered the directors for the time being to pay, and they did not sign the policy. Here, however, the defendants’ seals and signatures are attached to the instrument, in which it is recited that they were three of the directors of the association, and agreed that as long as the plaintiff should continue to pay an annual sum for 8 LAW OF FIRE INSURANCE. insurance of his premises from fire from year to year, he should be entitled to a remuneration out of the society’s funds. That was an express undertaking that he should be so remunerated. Besides, they admitted the plaintiff a member on the terms, covenants and conditions prescribed by the deed of settlement of the association; and by the eighth clause of the articles which are set out in the decla¬ ration, the loss sustained was to be made good within ninety days after the same happened, either by repaying the sum insured, or by repairing or rebuilding the premises de¬ stroyed. The defendants signed the policy which referred to that article or condition. It is true they are not them¬ selves personally liable, but the plaintiff was clearly entitled to recover from the funds of the society, if they were suf¬ ficient to defray the amount of his loss. The plaintiff has averred that they were, and that, therefore, is all that he was required to da; and I fully concur with my Lord Chief Justice that the Court will not arrest a judgment unless it be perfectly clear that the plaintiff is not entitled to retain it, for it is a general rule that nothing is to be presumed after verdict but what is expressly stated in the declaration, or necessarily implied from the facts which are stated.” Mr. Justice Burrough.—“ I am satisfied that this judgment ought not to be arrested. The directors of the society held themselves out to the world as being responsible persons. If they were not so, no person would insure property with them. The defendants admitted the plaintiff' to insure, and agreed by such admission that he should be entitled to a remuneration out of the society’s funds, as no precise words are necessary to constitute a covenant. The words “ shall be entitled ” are sufficient to imply that the plaintiff should be remunerated out of the funds of the society, provided they were sufficient for that purpose; they therefore had a right to look to the defendants in the first instance. Unless they were liable, no society of this description would be obliged to pay in case of loss. Even if the words contained in the policy were more equivocal than they are, still, as the defendants have executed the instrument, I think they * OF THE NATURE OF THE CONTRACT. 9 are liable, and that it was unnecessary for the plaintiff to have set out more than he has done in the declaration.” Mr. Justice Richardson.—“ This was an action of covenant brought against the defendants as three of the directors of the National Union Fire Association, and the terms of the policy have been set out by the plaintiff in his declaration; by which it appears, that, in case of loss by fire, he was entitled to receive a remuneration for such loss out of the funds of the society; and he has averred that they have sufficient funds to cover the damage he has sustained. The defendants should either have demurred, or pleaded that the funds were insufficient; but they have put a number of other pleas upon the record, imputing fraud to the plaintiff, which the jury negatived, and set him right by their ver¬ dict ; and the defendants now* seek to turn him round on an objection to the declaration; but I think it is not well founded, or at all events it is insufficient for the purpose of arresting the judgment. It appears on the face of the policy that the defendants were three of the directors; that as such they admitted the plaintiff to be a member; and it then states that he should be entitled to a remuneration out of the society’s funds in case he sustained a loss by fire. This policy was executed under the hands and seals of the defendants, and the plaintiff has declared that he has sus¬ tained a loss by fire, and that the society had funds, and were bound to pay according to the terms of the articles under which it was established. The policy also contains a declaration that the society were to pay according to the deed of settlement, and that the defendants, as directors, should not be subject to any demand for losses, except under the articles establishing the society. Under this sti¬ pulation the plaintiff was entitled to set out such articles in his declaration, and which are now properly brought before the Court. The eighth article held out that the society were liable to satisfy such loss, in case the insurer did all that was requisite of him to be done within that period. This case is wholly distinguishable from that of Alchorne v. Saville, as here the substance of the policy is 10 LAW OF FIRE INSURANCE. The policy must state the interest of the insured, and on whose account the po¬ licy is made. set out, and the deed of settlement referred to. In that case there were no sufficient words to raise a covenant by the defendants, as they merely appointed the directors for the time being to pay out of the monies, securities, and effects of the contributionship pursuant and according to certain deeds and settlements; and the Court thought that the policy imported an order for the payment of the money, and not an agreement, and that even if it could be consi¬ dered as such, and was declared upon as against the de¬ fendants, the plaintiff must have been nonsuited on the plea of non est factum, because it was not their deed. My bro¬ ther Pell, however, has contended that the words “ declared and agreed” were there introduced in the proviso, whilst here the words “ stipulated and declared” only were used; but the former words were introduced in that case for a very different purpose, for they could have no effect as to the order and direction to the directors for the time being to pay out of the funds of the society. I therefore concur with the Court in thinking that the judgment in this case ought not to be arrested. Rule discharged.” Some cautious pleaders, in framing declarations on be¬ half of the insured to recover upon a loss, aver that the share of the capital in the company belonging to the sub¬ scribing directors, amounts to some large sum of money more than sufficient to cover the sum insured for, with the object of affecting the subscribing directors personally, in case, by means of any defect in the internal machinery of the company, or any other cause, the joint stock funds of the company should not be made available to the purpose. 3. By stat. 14 Geo. 3, c. 148, s. 2, it is enacted, that it shall not be lawful to make any policy or policies on the life or lives of any person or persons, or other event or events, without inserting in such policy or policies the person or person’s name or names interested therein, or for whose use, benefit, or on whose account, such policy is so made or underwrote. OF THE NATURE OF THE CONTRACT. 11 4. The offices in general, in order to render the opera¬ tive part of the contract more concise, introduce the scale of premiums applicable to the different risks by indorse¬ ments upon the policy, referring to them, so as to make them part of the contract; these indorsements usually con¬ sist of a table of premiums to be paid—1. In respect of such as are called “ common insurances,” or those for which the lowest rate of premium is to be paid, as build¬ ings, which, from their construction, materials, or use, are exposed to the least degree of hazard. 2. In respect of such as are called “ hazardous insurances,” as buildings, which, from their materials or construction, are more sus¬ ceptible of ignition, but in which no hazardous trades are carried on, or hazardous goods deposited; buildings not of a hazardous nature, as those of the first class, but in which hazardous trades are carried on, or some circum¬ stances of hazard are attached, as the presence of stoves; the stock and goods of various specified traders, whose occupation exposes the goods to hazard, various specified articles of trade of a hazardous nature deposited in build¬ ings not hazardous. For insuring these a higher rate of premium is to be paid. 3. In respect of such as are called “ double hazardous insurances,” such as buildings, which from their construc¬ tion or materials are of a hazardous nature, in which hazardous goods are deposited, or hazardous trades are carried on, thus exposing the insurers to an increased liability of ignition, both from the nature of the buildings and the goods contained in them, or trades carried on, for insuring these a still higher premium is to be paid. There are also cases of extraordinary risk , as those of sugar refineries and manufactories, not included in the usual tables of premiums. These are usually made the subjects of special agreements, all the circumstances of the case being taken into consideration. Money, and securi¬ ties for money, are not in general insured upon any terms. After these tables of premiums, there usually follow the Indorsements on the policy. Common in¬ surance. Hazardous in¬ surance. Double hazard¬ ous insurance. Extraordinary risks. 12 LAW OF FIRE INSURANCE. The conditions Description of the property to be insured. A statement of loss to be made to the office. conditions or proposals, which the insured must comply with at his peril, as they form part of the policy and are conditions precedent, upon a due compliance with which must depend his right to an indemnity in case of loss. The most important conditions are usually to the fol¬ lowing effect:—the insured, upon effecting a policy, must give an accurate description of the construction and nature of the premises and goods to be insured, for upon that statement the insurers fix the amount of the premium to be paid, or exercise their discretion by rejecting the insurance altogether. This is a point of the utmost importance for a party about to insure to attend to, for even, without any special condition , a misrepresentation , whereby a less pre¬ mium is paid than would he payable if a true statement had been made, even without a fraudulent intent, would, upon the common principles of insurance, be sufficient to render void the policy, (a) Every insurance attended with particular circumstances of risk, arising from the situation or construction of the premises, or the nature of the trade carried on, or the goods therein, should be specially men¬ tioned in the order given for the policy, so that the risk may be fairly understood. If not so expressed, or if build¬ ings and goods be described in the policy otherwise than they really are, or if after an insurance shall have been effected, the risk shall be increased by the erection or alteration of any stove, the carrying on any hazardous trade, operation, or process, the deposit of any hazardous goods, or in consequence of the formation of any hazardous communication, the insured will, by the conditions of most offices, lose the benefit of his policy, (b) All persons who have sustained any loss or damage are, in general, to give immediate notice to the office and de¬ liver a statement of their loss, supported by the evidence required by the rules of the respective offices; according to the practice of some, the certificate of the clergyman of (a) Roberts v. Fonnereau, Park, 285. Fitzherbert v. Mather, 1 T. R. 12. ( b ) See Protector Policy, Appendix, cond. 2. OF THE NATURE OF THE CONTRACT. 13 the parish, the churchwardens, and some other respectable Evidencem sup- inhabitant, is made one of the modes of evidence of the forlo°ss. C * amount of the loss. The production of this certificate has been held to be a condition precedent , (a) in the absence of a compliance with which the insured cannot recover. As there is no mode of compelling the clergyman, churchwar¬ dens, or inhabitants to certify, a hardship is sometimes in¬ curred by the insured; a clergyman may sometimes refuse to certify, not from the intention of throwing an imputation upon the character of the insured, but because as the mi¬ nister of a large parish he has little opportunity of becom¬ ing acquainted with the character of the insured, the par¬ ticular circumstances of the fire, or form anv estimate of the loss: this mode of proof has therefore been abandoned by many of the offices. If a landlord insuring wishes to secure the payment of rent from his tenant, in case the premises occupied by him should be burnt, it ought to be Insurance of specified in his policy; for a landlord, upon a lease con- e spe ’ taining a covenant for payment of rent, as is usually the case, does not lose his right in consequence of the premises being burnt, and therefore needs no indemnity; besides, rent is not a loss or damage by fire, it may be hazarded or even lost in consequence of a fire, but it never yet seems to have been distinctly held that a policy can cover a con¬ sequential loss or damage; for if so, an office might be called upon to compensate for loss of business or misfor¬ tunes in trade, which might eventually take place in con¬ sequence of a fire, and such an indemnity for losses is certainly not contemplated by the insurers. In general, persons insuring are to give notice of any Notice of any other insurance made elsewhere upon the same property, in gNen? nC6 which case the insurers are only to be liable to the pay¬ ment of a rateable proportion of any loss or damage; even without a special condition of the policy, a party insured effecting a double insurance can only recover the real amount of his loss, and if he sues one insurer for the (a) See this subject considered, post, Proof of Loss* 14 LAW OF FIRE INSURANCE. Fraud or false- swearing in the claim made will vitiate the con¬ tract, When a person recovers only half the sum claimed, it would appear to be evidence of fraud. whole, that insurer may compel the others to contribute their proportional parts. ( a ) In the policies of most offices there is a condition, that if there appear any fraud in the claim made for the loss, or false swearing or affirming in support thereof, the claimant shall forfeit all benefit under the policy. Now, fraud is in law allegatio falsi or suppressio veri, and therefore any wilful mistatement of the extent or amount of the loss, in the claim preferred, with the view to injure the office, may subject the insured to lose his indemnity even in respect of that loss or damage which he has actu¬ ally sustained. In a late case of Wood v. Masterman and others, ( b ) in which a claim was resisted, and the condition vacating the policy in case of fraud was insisted upon by the insurers, Lord Tenterden told the jury, that if they thought the plaintiff had overrated the amount or value of his loss from mere mistake or misapprehension, they would find only for such loss or damage as he had actually in¬ curred ; but if, on the other hand, they thought he had done so with a fraudulent intent, then they should find a verdict for the defendants. These are rules which the offices have been obliged to adopt for their own security. In the multiplicity of their concerns, it would be absolutely impossible for them to ascertain the truth or falsehood of representations made to them at the time the insurance is effected; and as the knowledge of all the facts necessarily rests with the insured, he is bound to furnish a true state¬ ment, upon which he is to stand or fall. The offices, how¬ ever, are seldom in the habit of availing themselves of the clause relating to fraud, unless they have good reason to suppose that a gross imposition is attempted to be prac¬ tised upon them. When a person insured demands twice as much in respect of his loss or damage as he can give any probable evidence of or a jury will give him, (and (а) Newby v. Read, 1 Bla. 416, Rogers v. Davis, Beawes, Lex. Merc. 242. Davis v. Geldart, Beawes, ubi supra. (б) K. B. Feb. 11, 1822, MS. OF THE NATURE OF THE CONTRACT. 15 juries are in general very liberal to the public as against the offices,) it is a fact which strongly indicates fraud; and in a recent case of Levi v. Baillie and others, (certain directors of the Palladium,) (a) it appeared that the policy of insurance upon which the action was brought contained the usual condition, requiring the insured suffering a loss to deliver in to the office as full an account thereof as the nature of the case would admit of, accompanied by the usual evidence; and it also contained the other usual con¬ dition, that “ if there should be any fraud in the claim made , or false swearing or affirming in support thereof, the claimant shall forfeit all benefit under such policy. The plaintiff, an upholsterer, carried on business in a small house in the New-cut, in St. George’s Fields, and the insurance to the amount of 1,000/. was effected on his stock in trade, the 22d of November, 1827. The premises were burnt down on the night of the 14th of February, 1830. The plaintiff made affidavit, that, in consequence of the fire, he had sustained a loss of stock to the amount of 1,085/., viz. 85/. for goods which were injured in the removal, and 1,000/ for goods which had been abstracted by the crowd assembled on the occasion, and had never been recovered. The goods so lost were alleged to con¬ sist of four-post bedsteads, mahogany tables of various sizes, couches, chairs, stools, chimney glasses, pier glasses, carpets, and the like. The defendants contended that this claim was fraudu¬ lent, and called witnesses to show that it was impossible for goods so numerous and bulky to have been carried off undiscovered. These witnesses stated, that policemen were on the spot as soon as the fire broke out; that a cordon was established round the premises almost immediately; that the fire was over in about two hours, and that no article of size could be carried away. The plaintiff’s wit¬ nesses denied that the blockade had been so effectual; and the Chief Justice left it to the jury to say whether the plaintiff had made a fraudulent demand or not. The jury (a) 7 Bingh. 349. 16 LAW OF FIRE INSURANCE. having found a verdict for the plaintiff with 500/. damages, Taddy, Serjeant, obtained a rule nisi for a new trial, on the ground that the finding of 500/. damages, instead of the whole amount sworn to by the plaintiff, amounted, in effect, to a verdict for the defendants, under the condition which avoided the policy if there were any fraud or false swearing in the plaintiff’s claim; a claim of 1,085/., where a party had lost 500/., could not be otherwise than fraudu¬ lent. He also objected to the verdict as contrary to evidence. Wilde and Andrews, Serjeants, who showed cause, con¬ tended that the finding of the jury was not necessarily a proof that there had been any fraud in the plaintiff’s claim, he might, by mistake, have estimated the goods lost at more than their value; as to the probability of the loss, the evidence was merely conflicting. The Court having taken time to consult, made the rule absolute on payment of costs. A remark may be made upon another singular feature in this case, that the claim in general was made, not in re¬ spect of goods lost or damaged by fire , but in respect of goods abstracted in consequence of the opportunity which the fire afforded. It does not appear whether the learned judge directed the jury upon this point, though it might be supposed that a jury would not have found damages to such an extent without a direction to that effect. In consequence of the numerous fires which have re¬ cently taken place in the agricultural and manufacturing districts by the acts of incendiaries, the offices in general have been under the necessity of adopting the average clause in their policies > upon farming stock, by which, Of the average where a person insures property collectively of larger value clause * than the amount insured, he shall only recover in the pro¬ portion which the whole value bears to the part insured, (a) For example, if having property worth 10,000/. he insures it only for 1000/., in case of a fire producing loss or damage to the amount of 1,000/., he will recover only 100/. (a) See Appendix. ’ OF THE NATURE OF THE CONTRACT. 17 As an encouragement to the insured to use active dili¬ gence in the preservation of property after a fire has broken out, it frequently forms a part of the proposals that the office will repay all real and actual expences incurred in the removal of goods in case of fire. It is indeed difficult to conceive any conduct more nearly approaching to fraud, if not partaking of it, than for a party insured to abstain himself, or prevent others, from using every possible means to extinguish the fire or save the property from destruction. 5. The legislature has imposed certain duties both upon the policy and the amount insured; as the premiums upon the latter have of late years been considerably reduced, and the duties still continue the same as they were before the reduction, the duties bear an unequal proportion to the premiums, and operate as a check upon the more general extension of the salutary practice of insurance. By stat. 55 Geo. 3, c. 184*, a duty of Is. is imposed upon every policy; and also the yearly sum of 3s. for every 100/. in¬ sured for a year, and at and after that rate for every frac¬ tional part of a year, (a) Thus, upon the common insu¬ rance of Is. 6c/., a duty of 200 per cent, is imposed. Insurances on public hospitals, and on property in any foreign kingdom or state in amity with his majesty, are exempted from duty. By the same act, a higher rate of duty is imposed in re¬ spect to insurances (made by persons not licensed pursuant to stat. 22 Geo. 3, c. 48,) upon property in the colonies, namely, on the policy 2s. 6c/., and on the sum insured 5s. per cent. And by a more recent statute of 9 Geo. 4*, c. 13, it is enacted, that in every case where any insurance from loss or damage by fire shall be made or renewed or continued upon two or more detached buildings, or upon two or more buildings so separated from each other as to occasion a plurality of risks; or upon any goods, wares, or merchan- (u) See Schedule of the Act, p. 1. C Payment of ex¬ pences incurred in removing goods in case of fire. Duties upon the policy and amount insured. Plurality of risks not to be included in the same policy without an average clause. 18 LAW OF FIRE INSURANCE. Farming stock excepted from the provisions < the statute. Whether the memorandum requires a stamp. dize, or other moveable property contained in two or more such buildings as above described, or lying or being in two or more places so separated from each other as to occasion a plurality of risks, (except the implements and stock upon any one farm), then, and in any of the cases aforesaid, every such separate building shall be separately valued, and a distinct and separate sum shall be insured upon the goods, wares, merchandize, or other moveable property contained in every such separate building, or lying or being in every such separate place; and it shall not be lawful to insure one gross sum upon two or more of such separate subjects or parcels of risk as aforesaid taken col¬ lectively. S. 1. If any policy shall be granted, or renewed, or con¬ tinued, whereby any insurance from loss or damage by fire shall be made of or upon two or more such separate subjects or parcels of risk as aforesaid collectively in one sum, contrary to the true intent and meaning of this act, such policy shall be void and of none effect; and the person or persons, &c. by whom any such policy of insu¬ rance shall be granted, &c. shall forfeit the sum of 100/. S. 2. The act, however, is. not to prevent the insuring collec¬ tively, in one sum, any number of distinct buildings, or lying in any number of separate and distinct places, pro¬ vided there be in such policy the average clause.(a) In the schedule to the stat. 55 Geo. 3, c. 184, tit. Agreement, an exemption from preceding and all other stamp duties is contained in respect of the label, slip , or memorandum , containing the heads of insurance to be made by the corporation of the Royal Exchange Assurance and London Assurance, or by the corporation of the Royal Exchange Assurance of houses and goods from fire, and London Assurance of houses and goods from fire. It would appear, therefore, that these memorandums are to be considered as agreements , and if so, it would appear that they could not be given in evidence (except by the two corporations abovementioned) unless stamped as such, (a) See Appendix. OF THE NATURE OF THE CONTRACT. 19 where the premium exceeds 201 .; for by stat. 55 Geo. 3, c. 184, sched. tit. Agreement, an agreement, or any minute or memorandum of an agreement, made in England under hand only, or made in Scotland without any clause of re¬ gistration, (and not otherwise charged in this schedule nor expressly exempted from all stamp duties,) where the matter thereof shall be of the value of 201. or upwards, whether the same shall be only evidence of a contract or obligatory upon the parties, from its being a written instru¬ ment, &c. requires a 11. stamp. As it would be difficult to assess the value of a contract of insurance by any other standard than the amount of the premium paid, it would appear that the necessity of a stamp upon the memorandum depends upon the circumstance whether the premiums (without duty) amount to 201. or not. It would be too much to say that the sum insured is the value of the con¬ tract, inasmuch as insurance is only an indemnity, render¬ ing the insurers liable only upon the happening of a con¬ tingency. It is sufficient that an agreement have the proper stamp at the time when it is given in evidence. By the stat. 14 Geo. 3, c. 78 s. 83, entitled an “ Act for the further and better Regulating of Buildings and Party- Walls, &c. within the Weekly Bills of Mortality,” &c. it is enacted, that “ it may be lawful for the directors and go¬ vernors of the several insurance offices, and they are hereby authorized and required, upon the request of any person, &c. interested in or entitled unto any house or houses or other buildings, which may hereafter be burnt down, demo¬ lished, or damaged by fire, or upon any grounds of suspi¬ cion that the owner, &c. occupier, &c. or any other person, &c. who shall have insured such house or other building, have been guilty of fraud, or of wilfully setting their house or other building on fire, to cause the insurance money to be laid out and expended, as far as the same will go, toward rebuilding, reinstating, or repairing such house or houses or other buildings so burnt down, &c. unless the party, &c. claiming such insurance money shall, within sixty days next after his, &c. claim is adjusted, give sufficient c 2 Right of insu¬ rance offices under the party wall act to re¬ build or rein¬ state buildings burnt down. 20 LAW OF FIRE INSURANCE. security to the governors or directors of the insurance office, where such house or houses or other buildings are insured, that the same insurance money shall be in that time settled and disposed of to and amongst all the con¬ tending parties, to the satisfaction and approbation of such governors and directors.” Exemption from By the statute 55 Geo. 3, c. 184, sched. tit. Receipt, an duty on receipts exemption is given in respect of a receipt given solely for so far as regards 1 ° 1 > L ° J the duty only, the duly on insurance against fire; and receipts given for the premium and duty on such insurances are to be liable only to the receipt duty in respect of the premium . If the premiums therefore do not amount to 406*., no duty will be payable on the receipt. ( 21 ) CHAPTER II. OF THE INTEREST OF THE INSURED. The party insuring must have an interest in the property insured to entitle him to recover. To permit the existence of wager policies upon such a subject as insurance against tire would be a pernicious principle, as it would necessarily lead to the commission of those nefarious practices which it is one of the objects of legitimate insurance against fire to prevent. Thus, even before the passing of the stat. 14< Geo. 3, Lord Chancellor King, in the case of Lynch v. Dalzell, («) said, in a case where a policy upon a house and goods had been assigned after the fire happened, “ the party insured must have a property at the time of the loss or he can sustain no loss, and consequently can be entitled to no satisfaction.” Again, in a case somewhat similar, and which will hereafter be more particularly noticed, (b) Lord Chancellor Hardwicke said, “ I am of opinion that it is ne¬ cessary that the party insured should have an interest or property at the time of insuring and at the time the fire happens . It has been said for the plaintiffs,” observed his lordship, “ that it is in nature of a wager laid by the in¬ surance company, and that it does not signify to whom they pay if lost. Now these insurances from fire have been in¬ troduced in later times, and therefore differ from insurance of ships, because there interest or no interest is almost constantly inserted, and if not inserted you cannot recover unless you prove a property.” His lordship afterwards proceeds thus, “ to whom or for what loss are they (the offices) to make satisfaction? Why, to the person insured and for the loss he may have sustained, for it cannot pro- (o) 4 Bro. P. C. 431, ed. Toml. (fr) The Sadlers' Comp. v. Badcock and others, 2 Atk. 554. The insured should have an interest at the time of insuring and at the time the fire happens. 22 LAW OF FIRE INSURANCE. Interest in the insured required by statute. perly be called insuring the thing, for there is no possibi¬ lity of doing it, and therefore must mean insuring the person from damage.” The stat. 14 Geo. 3, c. 48, although by its title it ap¬ pears to relate only to insurance upon lives, embraces in its preamble and enactments all kinds of insurance except marine insurances. It recites, “ that the making insurances on lives or other events , wherein the insured shall have no interest, hath introduced a mischievous kind of gaming;” and then enacts, “ that no insurance shall be made by any person or persons, bodies politic or corporate, on the life or lives of any person or persons, or on any other event or events whatsoever, wherein the person for whose use and benefit, or on whose account such policy or policies shall be made, shall have no interest, or by way of gaming or wagering; and that every insurance made contrary to the true intent and meaning hereof shall be null and void.” S. 1. “ And in all cases, where the insured hath interest in such life or lives, event or events , no greater sum shall be recovered or received from the insurer or insurers than the amount or value of the interest of the insured on such life or lives, or other event or events .” S. 3. It appears, however, that the insured need not have an absolute and unqualified or immediate interest in the pro¬ perty insured. Thus a trustee, a mortgagee, a reversioner, a factor or agent of goods to be sold by commission, and probably a pawnee, depository, or common carrier, may legally insure their respective interests, subject to the rules of the different offices, by most of which the nature of the property insured is to be specified; (a) and it may be observed in general, that although the stat. 14 Geo. 3, c. 48, has a tendency to throw considerable difficulties in the way of recovering upon a loss both on fire and life policies, by putting the claimant to the proof of his interest, in order to entitle him to recover, the offices in general, from a sense of liberality and the good faith due to the public, seldom avail themselves of this objection when the i • - * . 1 («) 2 Marsh. 789 ; and see Thorowgood v. Marsh, 1 Gow, 108. OF TIIE INTEREST OF THE INSURED. 23 claim is even tolerably fair and honest. In fact, such would he the difficulty of ascertaining the precise quantum of interest in many cases, in order to comply with the third section of the act, that this clause would, if insisted on, materially affect the whole system of fire and life insurance, by making the sum to be paid upon the event happening a constant subject of doubt and litigation. It is made a condition with most offices, that persons insuring property should give notice of any other insurance made elsewhere on the same property on their behalf, and cause a minute or memorandum of such other insurance to be endorsed on their policies; and in this case the com¬ pany is only to be liable to the payment of a rateable pro¬ portion of any loss or damage which may be sustained, and unless such notice be given, the insured are not to be entitled to any benefit under the policy. («) According to the general principles of insurance, when¬ ever the risk to be run is entire, there is no return of pre¬ mium, though the contract should cease and determine the next day after its commencement. This rule applies to in¬ surances against fire, which generally are made for one entire and connected portion of time, which cannot be severed; and therefore if the property insured should be destroyed by fire, arising from the act of a foreign enemy , the very day after the commencement of the policy, though the underwriters would be discharged, yet there can be no apportionment or return of premium. ( b ) Even if the insured have no interest, yet it would appear that he cannot recover back the premium after taking the chance of a loss, and of obtaining from the generosity of the insurers the sum insured, (c) (а) See cond. 6 of Protector policy ; see also the average clause, Appendix. (б) Parke, c. 23 ; 2 Marsh. 652. (c) Lowry v. Bourdieu, Dougl. 468. Doctrine of return of pre¬ mium not appli¬ cable to case of insurance from fire. ( 24 ) ■ CHAPTER III. THE NATURE AND EXTENT OF THE RISK FOR WHICH THE INSURERS UNDERTAKE. 1. Damage by Heat in the process of manufacture without Ignition. 2. Insurance of Specific Articles to be construed by the general scope of the Policy. 3. Breach of Warranty and the nature of Warranties. 4. Of Misrepresentation of material Facts . 5. Concealment of material Facts. 6. Construction of the words (t Usurped Power.” 7. Construction of the words “ Civil Commotion .” 8. Right of an Office to stand in the place of the insured as against the Hundred . 9. Commencement and duration of the Contract. 10. Effect of Notice by an Office to determine a Con¬ tract, except upon payment of a higher Premium, and of the 15 days allowed for payment of P) 'emiums. 11. A nominal Misdescription and the necessary intro¬ duction of Fire into a Building , covered by the common insurance. The insurers, in consideration of the premium paid, usually undertake to pay or make good to the insured, his execu¬ tors, administrators, and assigns, all such loss or damage as shall happen by fire, (except loss or damage by fire hap¬ pening by any invasion, foreign enemy, civil commotion or riot, or any military or usurped power whatever,) to the property specified, to the extent of the sum for which it is insured, but they sometimes also give notice, by the in¬ dorsements of the policy, that they will not be answerable nature of insurer’s risk. 25 for loss or damage on stock of any kind occasioned by the misapplication of fire heat under process of manufacture, or for loss or damage to hay or corn, or stock of any kind, occasioned by its own natural heating. It is obvious, that to indemnify the insured against ignition under either of these circumstances, would be to open a door to negligence and fraud, if not directly to encourage it. On the other hand, to remove any doubt in the minds of the insured, though little could exist upon the terms of most policies, it is sometimes expressly stated that losses occasioned by fire from lightning will be made good. 1. A case has occurred which shows, that, in order to recover upon a policy against loss or damage by fire , it is not sufficient to show that the property has been damaged by the heat of fires usually employed in the manufacture, and increased by the negligence of the insured, or his ser¬ vants, beyond its usual intensity. An action was brought (a) on a policy of insurance effected “ against all the damage which the plaintiffs should suffer by fire” on their “ stock and utensils in their regular built sugar-house,” and plaintiffs averred that n» A warranty must form a part of the policy. Misrepresenta¬ tions, if mate¬ rial, will avoid a policy. What represen¬ tation is mate¬ rial. 30 LAW OF FIRE INSURANCE. the underwriter, it will be material, and fatal to the con¬ tract. There is this material difference between a representa¬ tion and a warranty'. —a warranty is always a part of the written policy, and must appear upon the face of it; but a representation is only a matter of collateral information on the subject of the insurance, and makes no part of the policy. A warranty must be strictly and literally com¬ plied with; but it is sufficient if a representation be sub¬ stantially correct. An untrue representation is not in itself a breach of the contract, (although by the terms of the contract it may become so,) but if the untrue representation be material , it will in itself avoid the policy, either on the ground of fraud, or because it has misled the insurer, (a) Macmorran Sc Co .(b) cotton and wool spinners, insured their premises with the Newcastle-upon-Tyne Fire In¬ surance Company. The policy was dated April 16, 1805, and contained a receipt for the premium, which was ac¬ counted for to the company by Hamilton, their agent at Glasgow, through whom the insurance had been effected. The policy was retained by Hamilton till September 5, 1805, when it was delivered to the insured upon their pay¬ ing the premium. The policy referred to certain printed proposals, a copy of which was, according to the practice of the office, always delivered to the person transacting the insurance; in which proposals it was stated, that where the persons insuring gave a description of the subject, in order to its being insured at a lower premium, and that where there should be fraud or false swearing in stating the amount of the loss, the policy was to be of no force. Certain classes of buildings were likewise specified, accord¬ ing to the particulars of which the premium was to be lower or higher, and the premises in question were warranted to be of the first class, for which the lower premium only was charged. On December 7, 1805, the mill was burnt, and the insurers refusing to pay the sum claimed for the loss, (a) Roberts v. Fonnereau, 1 Park, 285, 7th ed. Stra. 327. ( b ) Newcastle Fire Insurance Company v. Macmorran & Co. 3 Dow, 255. NATURE OF INSURER’S RISK. 31 the insured brought an action, regularly preceded by an arrestment ad fund. jur. before the Court of Session, con¬ cluding for payment of 1647/. and interest from December 7, 1805. A condescendance having been ordered, the in¬ surers stated two charges as the ground of their refusal to pay: first, that there was fraud and false swearing as to the amount of the loss; second, that the fire was inten¬ tional. Upon proof it appeared that there was no founda¬ tion for this latter charge; but it also appeared, that at the time of the date of the policy the premises were of the second class, contrary to the warranty. In answer to this it was alleged, that Hamilton, the agent of the Newcastle Company, had taken it for granted that the premises were of the first class, and made out the policy accordingly, without any representation on the part of the insured; and that before the policy was delivered, and the loss happened, the premises had been altered so as to bring them within the first class; it did not appear very distinctly in proof, how the demand of 1647/. was made up. The Court below decerned against the insurers in terms of the libel, and from this decision the Newcastle Company appealed. Lord Eldon, C.—This is an appeal by the Newcastle Company from a judgment of the Court of Session, by which they were held liable in the payment of a sum of 1647/. upon a policy of insurance, and the question is whether this judgment was right or not. The summons, which is in the nature of our declaration, stated, that the Newcastle Company were indebted to the pursuers in a sum of 1647/. in terms of a policy dated April 16, 1805, and concluded for payment accordingly. The policy itself was in these terms: “ Whereas Mr. Hugh “ M‘Morran & Co., &c. have paid the sum of 21/. 5s. 8d. “ to the society of the Newcastle-upon-Tyne Fire Office; “ and do agree to pay, or cause to be paid, to the said “ society, at their office in Newcastle-upon-Tyne, the sum “ of 17/. 17s. on the 24th day of June, 1806, and the like “ sum of 17/. 17s. yearly, on the 24th day of June, during “ the continuance of this policy, as a premium for the in- 32 LAW OF FIRE INSURANCE. “ surance from loss or damage by fire, of 50/. on mill- “ wright’s work, including all the standing and going gear “ in their mill, which is used as a cotton and woollen mill, “ situated at Garschew, being in their own occupation “ only, and stone built and slated; 550/. on clothmaker’s “ work, carding and breaking engines, and all moveable “ utensils in the second floor, occupied as a cotton mill; “ 160/. on stock of cotton in the same; 600/. on cloth- “ maker’s work, carding and breaking machines, and all “ moveable utensils in the first floor, occupied as a woollen “ mill; and 350/. on stock of wool in the same:” then fol¬ lowed this very material passage, “ warranted that the “ above mill is conformable to the first class of cotton and “ woollen rates delivered herewith.” The materiality of it consisted in this, (though in one view, whether it was material or not did not signify, if it was a condition precedent,) that if it was of the second class, and not of the first, a larger premium ought to have been given. And then it goes on, “ Now, know all men “ by these presents, that from the day of the date hereof “ until the said 24th day of June, 1806, and so from year “ to year, so long as the said Hugh M‘Morran & Co. shall “ duly pay, &c. the sum of 17/. 17s. &c. and the same shall “ be accepted by the trustees or acting members of the said “ society for the time being, the stock and fund of the said “ society shall be subject and liable to pay, &c. all such “ damage and loss as the said Hugh M ( Morran & Co. “ shall suffer by fire not exceeding the sum of 1700/. &c.” and then followed at the bottom an entry of receipt of the government duty of 21. from April 16, 1805, up to the 24th of June, 1806. Their lordships would observe the mate¬ riality of that, as this instrument could never have been produced in Court, if it were only on account of the revenue, save as a policy of April 16, 1805, on which, as a policy so dated, the demand could have been made. But whether that was so or not, the demand was made on this policy. On June 24, 1806, the premium must again be paid, and the duty to government, and whether the demand was on NATURE OF INSURERS RISK. the policy originally entered into, or on the renewed policy, it must be on a policy liable to such a duty, and of this date. In the appellant’s case it is stated, that the printed pro¬ posals formed part of the contract, and that besides being referred to, a copy is always delivered to the party insuring: and that it is there set out, among other things, that if any “ person or persons shall insure his, her, or their houses, “ mills, &c. and shall cause the same to be described in “ the policy otherwise than as they really are, so as the “ same shall be insured at a lower premium than proposed “ in the table, such insurance shall be of no force.” As to their so setting it out in their printed proposals, in the case of a warranty, it is unnecessary to consider that; tor if Nature of a there is a warranty, the person warranting undertakes that wairant y- the matter is such as he represents it; and unless it be so, whether it arises from fraud, mistake, negligence of an agent, or otherwise, then the contract is not entered into; there is in reality no contract. Then they further state, that by another article of these proposals it is provided, “ that all persons insured by this “ society sustaining any loss or damage by fire, are forth- “ with to give notice thereof at their office in Newcastle, “ and as soon as possible after, to deliver in as particular “ an account of their loss or damage as the nature of the “ case will admit, and make proof of the same, by their “ oath or affirmation, according to the form practised in “ the said office, and by their books of account or other “ proper vouchers, as shall be reasonably required.” That they shall also procure a certificate under the hands of the minister, &c. and others relative to the cause of the loss, “ and until such affidavit and certificate shall be made and “ produced the loss-money shall not be payable, and if “ there appear any fraud or false swearing, such sufferers “ shall be excluded from all benelit by their policies.” They further represent that in the second set of propo¬ sals for the insurance of cotton mills, &c. certain classes of D LAW OF FIRE INSURANCE. buildings were specified, according to the particulars of which the premium is at a lower or higher rate. Thus, class 1 comprehends “ buildings of brick or stone 4 thereof; and no insurance is to take place till the premium be actually paid by the insured, his or her agents.” Lord Ellenborough, C. J., delivered judgment: after stating the pleadings—This question arises on the con¬ struction of the advertisement published by the Sun Fire Office on the 10th of July, 1794; and the point to be de¬ cided is, whether this advertisement be an engagement by the office to indemnify all persons who may insure their property at that office for a year, for the space of 15 days after the determination of the period of their insurance, without any regard to an intention of continuing the insu¬ rance? or whether it must not be considered as having re¬ lation to the third article of their printed proposals, and as being to be construed with reference to that article? The terms of the advertisement being general, have furnished the argument, that the right attached as soon as the policy was effected; that no condition being mentioned or referred to in the advertisement, the right does not depend on any thing ex post facto, and that it must be understood, not as an extension of the original policy nor as an agreement to grant a new policy, which should have relation back to the determination of the old policy, but as an independent and absolute agreement to indemnify for the space of fifteen days. And on this supposition the declaration is framed, by which it is alleged that, in consideration the plaintiffs would insure for one year, the office undertook that the property of the plaintiffs should be considered as insured for fifteen days beyond the time of the expiration of the policy. To this mode of construing the advertisement, it has been objected, that all insurances by the office, accord¬ ing to the first article of the printed proposals, are to be “ by policies signed and sealed by three or more of the trustees or acting managers,” and that the office never pro¬ fessed to insure in any other way; and in order to give effect to this term or condition on which the office professes to insure, that the Court ought not to construe the adver¬ tisement to be an engagement independent of the terms and stipulations contained in and referred to by the policy, NATURE OF INSURER’S RISK. 55 if by fair and reasonable construction it may be referred to and connected with the policy. The mode of insuring at this office, both before and since that advertisement, has been the same, namely, by a policy under seal referring to certain printed proposals; by the third article of which, it is provided, that all persons bespeaking policies are to make a deposit for the policy, &c. and to pay the premium to the next quarter day, and for one year more at the least; and shall, “ as long as the managers agree to accept the same, make all future payments annually at the office within fifteen days after the day limited by their respec¬ tive policies, upon forfeiture of the benefit thereof,” and that no insurance should take place till the premium be actually paid. On the construction of a similar policy, in the case of Tarleton v. Stainforth, 5 T. R. 695, (a) the Court held, that until the premium were paid persons who had insured were not protected by this article during the fifteen days; and that the intention of the parties, as it was to be collected from the policy and article, was, that the policy should have no effect until the premium was paid, the object of the provision being to avoid the expense of new stamps, &c.; and, in the course of the argument in the case before us, it has been admitted that the advertise¬ ment was published in consequence of that decision, to obviate doubts which had arisen on account of it. And it is, in effect, a declaration by the office, that though the legal construction of the instruments did not bind them to make good losses happening during the fifteen days, unless the premium was previously paid; yet that by the propo¬ sals they meant, and their intention had been and was, to protect the parties during the fifteen days, though a loss might happen before the payment of the premium; and if that be so, there can be no question but that the advertise¬ ment must be construed with reference to the article, and as if the article were qualified and corrected by the adver¬ tisement. The policy refers to the printed proposals, and the advertisement must either have the effect of annulling the third article or of varying it, if they cannot wholly (a) Ante, p. 50. 56 LAW OF FIRE INSURANCE. stand together, of which there can be no doubt; and that the true way of understanding the advertisement is as a correction of the article, and not as a substitution of a new provision in its place, will appear from this, that the ad¬ vertisement does not merely declare how persons insured shall be considered, but how they always have been con¬ sidered, which must necessarily refer to and respect the engagements the office had before made, that is, the poli¬ cies and proposals which, before the time of the advertise¬ ment, had been executed and published by the office. It is, in fact, a declaration on the part of the office of the construc¬ tion they at that time did, and alw r ays before had, put upon their own instruments; it is no substitution of a new engage¬ ment different from what they had formerly made in the place of such former engagements, but an exposition of the sense in which the instruments forming those engagements had been understood by themselves and were to be under¬ stood by others. If this be so, it brings us to what will be the true construction of this third article, if it be read as varied by the advertisement; and, if so varied, it would stand as if at the end of the article, after the words “ no insurance is to take place till the premium be actually paid by the insured,” then had been added this sentence, “ that all persons insured at this office by policies taken out for one year, or for a longer term, are considered by the managers as insured for fifteen days beyond the time of the expiration of their policies;” the effect of which would be to confine the words tc no insurance is to take place till the premium be actually paid,” (on which the Court relied in Tarleton v. Stainforth,) to the premium to be paid on the original effecting of the policy, and to leave the article as to the continuance of the insurance just as if nothing had been said in it as to the time when the in¬ surance was to take place. Suppose then the article to be thus altered, it will still contain the clause of option in the managers to receive the premium, which though it cannot be exercised during the fifteen days, within which the assured may renew his assurance, so as to leave the assurers NATURE OF INSURER’S RISK. 57 liable to a loss within that period, as that would make the advertisement nugatory, for it would be in effect saying that they should be insured or not according as the office should think fit to accept or refuse the premium for another year; yet as the option was most unquestionably intended to enable the office to determine the insurance, and to re¬ tain to them the power of refusing to renew it for another year, what is there, in case of their having made their option not to renew the assurance, which entitles an assured to an indemnity for the fifteen days, who is in no condition to renew his insurance? The office had 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 of the indemnity during the fifteen days is the premium which may be paid within that period; but when that cannot be any longer looked to or expected, the right to the indemnity must determine also. The effect of the third article and advertisement is to give the parties an option for fifteen days to continue the contract or not; with this advantage on the part of the assured, that if a loss should happen during the fifteen days, though he have not paid the premium, the office shall not after such loss determine the contract, but that it shall be considered as if it had been renewed; but this does not deprive them of the power of determining the contract at the end of the term, by making their option within a reasonable time be¬ fore the end of the period for which the insurance was made. When 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, which would be the case if the argument of the plaintiff’s counsel were well founded, that the interval of the fifteen days is not comprised in the policy. If that were so, a new policy • 58 LAW OF FIRE INSURANCE. and new stamps would be necessary, whereas, according to the present policy, regard being had to its relation to the printed proposals, it is an insurance for one year, and for so long as the parties please, provided the assured pay the annual premium within fifteen days of the expiration of each year; with a restriction of the office alone from deter¬ mining the policy after the year during fifteen days of the following year, in case a loss should happen during that period; and on this head the argument used by the de¬ fendant’s counsel from the annual duty on insurances, has weight to show that the understanding of the parties was not that for the fifteen days there should he an absolute indemnity , as in such case the duties would have been paid for that fractional part, from the non-payment of which the assured could not but conclude that his assurance was not meant to be an absolute unconditional assurance for more than a year, and such as the office had no power to deter¬ mine until fifteen days after the year’s end. Under this view of the question, it will not be necessary to say whether an insurance can be made by parol against the perils in¬ sured against by this policy; and as in this case there has been a determination of the contract by the plaintiffs hav¬ ing informed the office that they could not give the in¬ creased premium demanded by them for another year, there must be judgment for the defendants. Nominal mis¬ description will not vitiate a po- licy. Introduction of a tar-barrel for the purpose of repairing a building, cover¬ ed by the com¬ mon insurance. 11. A nominal misdescription of a building, if substantially correct, will not vitiate the policy, and the introduction of a tar-barrel and fire for the necessary purpose of tarring the building, in consequence of which it was consumed by fire, will not vitiate the policy, though the premium was paid as for a building wherein no fire was kept, and no hazardous goods deposited. An action (a) of assumpsit was brought upon a policy of insurance against the defendants, three of the directors of the Beacon Insurance Company. The policy was ef¬ fected upon “ a barn, situate in an open field, timber- built, and tiled.” The conditions indorsed on the policy (a) Dobson v. Sotheby, 1 Mood, and Malk. 90. NATURE OF INSURER’S RISK. 59 required the usual description of the property. The policy was effected at the lowest rate of premium, such as was only payable for buildings of a certain description, where no fire is kept, and no hazardous goods deposited. There were articles fixing a higher rate of premium for buildings of other descriptions, w ith the same proviso against hazard¬ ous goods; and a proviso, that “ if buildings of any de¬ scription insured with the company shall at any time after such insurance be made use of to stow or warehouse any hazardous goods” without leave from the company, the policy should be forfeited. The premises were agricultural buildings, but not such as were strictly to be described as a barn, but they were of such a nature that they would have been insured by the company at the same rate, if they had been more accurately described. They required tarring, and a fire was consequently lighted in the ware¬ house, and a tar-barrel w r as brought into the building for the purpose of performing the necessary operation. In the absence, and by the negligence of the plaintiff’s servant, the tar boiled over, took fire, and communicated with that in the barrel, and the premises w r ere burnt down. It was contended that the plaintiff could not recover, 1st. because the premises were incorrectly described as a barn; 2d. because the lighting a fire was a contravention of the terms of the policy, which required that no fire should be kept in buildings on which the rate of insurance in the present case was paid; 3d. that the tar-barrel came under the description of hazardous goods, which w T as a breach of the condition. Lord Tenterden, C. J.—If the property insured has not been correctly described, the defendants certainly are not liable; but I do not think there is in this case any misde¬ scription which will discharge them. The word “ barn” is not the most correct description of the premises, but it would give the company substantial information of their nature; there would be no difference in their risk, and the insurance would have been at the same rate; whether the w r ord “ barn” or a more correct phrase had been used, I There must be an habitual use of fire or an or¬ dinary deposit of hazardous goods to come within the terms of a policy pre¬ cluding it. 60 LAW OF FIRE INSURANCE. think, therefore, that they are substantially well described. Nor do I think that the other circumstances relied on fur¬ nish any answer to the action. If the company intended to stipulate, not merely that no fire should habitually be kept on the said premises, but that none should ever be introduced upon them, they might have expressed them¬ selves to that effect; and the same remark applies to the case of hazardous goods also. In the absence of any such stipulation, I think that the condition must be understood as forbidding only the habitual use of fire or the ordinary deposit of hazardous goods, not their occasional introduc¬ tion, as in this case, for a temporary purpose connected with the occupation of the premises. The common repairs of a building necessarily require the introduction of fire upon the premises, and one of the great objects of insuring is security against the negligence of servants and workmen. I cannot therefore be of opinion, that the policy in this case was forfeited; and certainly if it is valid, the circum¬ stance that the fire happened through the negligence of the plaintiff’s servant furnishes no answer to the action, (a)— Verdict for plaintiff. It appears that a coffeehouse is not an inn within the meaning of a policy, enumerating the trade of an innkeeper amongst others as doubly hazardous. ( b .) (a) See Austin v. Drew, 6 Taunt. 436 ; 1 Holt, N. P. C. 126. ( b ) Doe d. Pitt v. Laing, 4 Campb. 76. ( 61 ) CHAPTER IV. OF THE PROOF OF LOSS. 1. Proof in general. 2. Production of the Certificate tinder the hand of the Minister , Churchwardens , fyc. when required by the Conditions . 1. Most offices have a condition or proposal indorsed on their policies to the following effect: “ all persons sustain¬ ing any loss or damage by fire are forthwith to give notice to the company, at their head office in London, and as soon as possible to deliver in as particular an account of their loss or damage as the nature of the case will admit, and make proof of the same by affidavit or affirmation before a justice of the peace, and produce such other evi¬ dence as the directors of the company may reasonably re¬ quire; and until such affidavit or affirmation, account, and evidence are produced, the amount of such loss, or any part thereof, shall not be payable or recoverable; and if there appear fraud in the claim made for such loss, or false swearing or affirming in support thereof, the claimant shall forfeit all benefit under such policy, except such as the directors may think fit to allow.” Others have varied this condition, in terms requiring, in addition to the usual requisite evidence, “ a certificate under the hands of the minister and churchwardens, together with some other reputable inhabitants of the parish, not concerned in such loss, importing that they are well acquainted with the cha¬ racter and circumstances of the person or persons insured, and do know or verily believe that he, she, or they really and by misfortune, without any fraud or evil practice, have 62 LAW OF FIRE INSURANCE. The production of the certificate when required is a condition precedent. sustained by sucli fire the loss and damage as his, her, or their loss to the value therein mentioned; but till such affidavit and certificate of such insured’s loss shall be made and produced, the loss-money shall not be payable.” The offices usually undertake to pay the loss, not exceeding the sum insured, “ according to the conditions indorsed on the policy,” or according to the exact tenor of the printed pro¬ posals. The offices, upon application after a fire, usually furnish the insured with necessary information for proving their loss. 2. It has been held, upon the construction of the policies of the Sun and Phoenix Fire Offices:—1st. That the pro¬ duction of this certificate under the hands of the minister and churchwardens, together with some other reputable inhabitants, is a condition precedent, without compliance with which the plaintiff cannot recover: 2dly. That the printed proposals, if referred to in the policy, are to be taken as part of the policy. In Oldman and another, assignees of Ingram, v. Bewicke and others, ( a ) in an action against the Sun Fire Office, where the plaintiffs in their declaration, after stating that the bankrupt, the insured, had conformed to the above article, as to the notice, account, and affidavit of loss, stated that the minister of Portsea, in which the loss had happened, resided at a distance from the parish, and was wholly unacquainted with the character and circumstances of the insured, and unable to make the certificate required by the policy; but that the insured had procured and deli¬ vered to the office a certificate under the hands of several reputable inhabitants of the tenor required by the article. No notice was taken in any of the pleas of the want of cer¬ tificate. The cause went to trial, and the jury found a verdict for the plaintiffs for a fifth of the sum demanded. The defendants moved in arrest of judgment, on the ground that the plaintiffs had not set forth in their declaration a sufficient title to recover upon the policy against the de¬ fendants. In answer to this application it was said, that it (a) 2 H. Bla. 577. OF THE PROOF OF LOSS. 63 was grounded on the title being either defective or defec¬ tively set forth; that the latter objection was cured by the verdict, and the former waived by the defence set up by the pleas. The Court, however, arrested the judgment. The Chief Justice said, S( though I am satisfied that the verdict was right, that the fire was accidental, and that the certificate could not have been procured because the in¬ sured had not sustained all the loss claimed; yet the rule of intendment cannot be applied where there is an absolute defect of title, as there is in this case. As to the pleas, they are wholly collateral to the title.” Mr. Justice Gould said, f£ till the affidavit is made and the certificate procured, the money is not payable. The time of payment therefore is not yet come. Though a bona fide sufferer, still she is not entitled without a certificate. -The stipulation is a condition precedent , that there shall be a certificate to show that there is no kind of fraud. Nothing is said about the churchwardens, and the excuse of the minister living at a distance is frivolous.” In the next case upon this subject, upon a policy of the Sun Fire Office, Routledge v. Burrell, (a) the declaration, by way of excuse for not producing the certificate, stated, that although application had been made to the proper parties for the certificate, that the defendants, by false in¬ sinuations and promises of indemnity, prevailed on the minister, &c. to refuse to sign it. The defendants, as to the first breach of covenant, pleaded, 1st, that the insured had no interest in the goods, &c. insured; £dly, that they did not prevail on the minister, &c. to sign the certificate. As to the second breach they pleaded, 1st, no interest; and 2dly, that neither the testator in his lifetime, nor the plaintiff since his death, had procured such certificate. Issue was joined upon the three first pleas, and the plaintiff' demurred to the last. In arguing that demurrer, it was contended on the part of the plaintiff', 1st, that a condition or restriction could not be annexed to and made part of a deed by words of mere reference to a printed paper distin- («) 1 H. 151a. 254. 64 LAW OF FIRE INSURANCE. guishecl only by the date of the year in which it was printed, without any signature, seal, or stamp, to give it authenticity; and 2dly, that the restriction in question, though it were properly annexed to the deed, was bad in itself. Many authorities were cited in support of these propositions; but the Court said, that the matter was too clear to admit of a doubt, and gave judgment for the defendants. Finally, in the case of Wood and others, assignees of Lockyer and Bream, v. Worsley, (a) in an action brought by the assignees of the insured, who had become bank¬ rupts, against the Phoenix, the plaintiffs in their declara¬ tion, amongst other things, alleged, that the bankrupts, soon after the loss, procured and delivered to the company a certificate under the hands of divers reputable house¬ holders, in the usual form; and that as soon as possible after the loss, they applied to and requested the minister and churchwardens of the parish to sign such certificate; but that they, without any probable cause, wrongfully re¬ fused to sign such certificate. To the first count the de¬ fendants, amongst other pleas, pleaded, that the minister and churchwardens did not wrongfully and without proba¬ ble cause refuse to sign the certificate, and that neither the bankrupts nor the plaintiffs had procured any certificate from the minister, churchwardens and reputable inhabitants, as is required by the said printed proposals. The cause was tried, and the plaintiffs obtained a verdict for 6000/. The defendant moved in arrest of judgment on the same ground as in the case of Oldman v. Bewicke, namely, that the production of the certificate was a condition pre¬ cedent to the payment of the loss, and that the plaintiffs not having averred performance, had shown no title to recover. After the argument, Lord Chief Justice Eyre, Mr. - Justice Buffer, and Mr. Justice Rooke, seemed to be of opinion, that supposing the printed proposals to be con¬ ditions precedent, there had been a performance cy pres; but that in truth the policy being a commercial contract was to be construed liberally, and the true question was (a) 2H, Bla. 574; 6 T. R. 710. OF THE PROOF OF LOSS. 65 whether the loss had been fairly incurred. If it had, and it appeared on the record to have so happened, the refusal of the minister and churchwardens was without cause, and therefore the plaintiffs were entitled to maintain their action. But Mr. Justice Heath appeared to differ from the rest of the Court, and time was taken to deliberate. Afterwards judgment was given for the plaintiffs pro forma, upon the understanding that a writ of error would be brought whichever way the judgment should be given. Upon this writ of error, the Court of King’s Bench after two arguments reversed the judgment of the Court of Com¬ mon Pleas, being unanimously of opinion that the produc¬ tion of the certificate was a condition precedent. Lord Kenyon said, he did not see how the term cy pres was ap¬ plicable to the subject: that the argument founded on this went to show, that if none of the inhabitants of this parish would certify, a certificate from the inhabitants of the next or any other parish would have answered the purpose. But, he said, that the insured could not substitute other terms or conditions in lieu of those which all the parties to the contract had originally made: the insured cannot sub¬ stitute one thing for another. In the case of Campbell v. French, (a) his lordship explained the grounds of this doc¬ trine. It was competent to the insurance office to make the stipulations stated in the printed proposals; they had a right to say to individuals who were desirous of being insured, “ knowing how liable we are to be imposed upon, we will among other things require that the minister, churchwardens, and some of the reputable inhabitants of your parish, shall certify that they believe that the loss happened by misfortune, and without fraud, otherwise we will not contract with you at all.” If the assured say, “ that the minister and churchwardens may obstinately refuse to certify;” the insurers answer, “ we will not stipulate with you on any other terms.” There is no foundation for the action, and the judgment below must be reversed. («) 6 T. E. 200. F ( 66 ) Maliciously setting fire to premises. Upon an indict¬ ment for arson a memorandum indorsed upon a policy, the former being without a stamp, not receivable in evidence. CHAPTER V. OF FRAUDULENT LOSSES. 1. Malicious setting fire with intent to injure. 2. General Evidence in support of a Charge of Arson. The statute of the 7 & 8 Geo. 4, c. 30, s. 2, enacts, that if any person shall unlawfully and maliciously set fire to any church or chapel, or to any chapel for the religious worship of persons dissenting from the United Church of England and Ireland, duly registered or recorded, or shall unlawfully and maliciously set fire to any house, stable, coachhouse, outhouse, warehouse, office, shop, mill, malt- house, hop oast, barn, or granary, or to any building or erection used in carrying on any trade or manufacture, or any branch thereof, whether the same or any of them re¬ spectively shall then be in the possession of the offender, or in the possession of any other person, with intent to injure or defraud any person thereby, every such offender shall be guilty of felony, and being convicted thereof shall suffer death as a felon. The material parts of this section are the same as those of stat. 43 Geo. 3, c. 58, under which last statute, sect. 1, E. Gillson was indicted. ( a ) The indictment was for felo¬ niously setting fire to a certain house, being in the posses¬ sion of the said E. Gillson, with intent to deftaud the Lon¬ don Assurance Company. At the trial, a policy of insurance was given in evidence on the part of the prosecution, by which the prisoner’s goods in a house there described were insured against fire; and upon this policy a memo¬ randum was indorsed, stating that the goods insured had (a) Hex v. Gillson, 1 Taunt. 25. OF FRAUDULENT LOSSES. 67 been removed from the house described in tlie policy to another house mentioned in the memorandum, in which last-mentioned house the prisoner was charged with having committed the felony. The policy was properly stamped, but the memorandum had no stamp, and the objection taken for the prisoner was, that in support of the charge it was essentially necessary to show that there subsisted a legally effective contract, and that, by the provision of the stamp acts, the memorandum in question, not being stamped, could not be given in evidence, or be good or available in any manner whatever; and a distinction was taken between the case where an unstamped forged instrument was admitted in evidence against the party charged with having forged it, or with uttering it or knowing it to be forged, (a) Another objection was also urged on behalf of the prisoner, that a corporation cannot bind itself by a mere agreement, it can only contract by deed, and, without a contract which could be enforced, the intent to defraud cannot be contemplated. This latter point, however, does not appear to have been much laboured. After argument before eleven of the judges, Mr. Justice Rooke being absent, the prisoner was ordered to be discharged; six of the learned judges being of opinion, as it was understood, that the memorandum was not admissible evidence. Where the intent is laid to defraud the insurers, the policy is the best evidence on their part to show that the house was insured, and the books of the insurance company are not evidence without notice to the insured to produce the policy. ( b ) It has been held under stat. 43 Geo. 3, c. 58, s. 1, and the doctrine is equally applicable to stat. 7 & 8 Geo. 4, c. 30, s. 2, that the act of wilfully burning the property carries within itself sufficient evidence of an intention to injure the owner, without proof of any other act which in¬ dicates malice, although the principal object of the former statute was to comprise the case of a person burning a (a) See Hawkeswood’s case, 2 East, P. C. 955 ; 1 Leach’s Cr. C. 292; Reculist’s case, 2 Leach’s Cr. C. 811. (b) Rex v. Doran, 1 Esp. C. 127. F 2 Wilful burning shoyvs an inten¬ tion to injure within the sta¬ tute. 68 LAW OF FIRE INSURANCE. house, of which he was tenant or owner, to the injury of his landlord or neighbour, or to defraud the insurer, (a) General evi- 2. The general evidence in proof of the offence, as in port of a charge °ther cases* resolves itself into the probable motives of the of arson. prisoner, his opportunity and means of committing the offence, and his conduct; and where the prisoner is charged with setting fire to his own house with intent to defraud the insurers, the value of the property, as compared with the amount insured, appears to be a question of great import¬ ance, in order to establish or repel the inference of motive. ( b ) (а) Farrington’s case, Russel, 1674. (б) See 2 Starkie on Evidence, 69 ; Rickman’s ease, East’s P. C. 1035. ( 09 ) CHAPTER VI. OF ASSIGNMENT OF POLICIES. 1. Assignment in general. 2. Assignment of Policy after the Fire happens , with Possession of the Property insured before the Fire. It has been before observed, that the insured upon a policy Of assignment, of insurance, in order to recover, must have an interest in the / u if s of 7 # 7 different offices the subject of the insurance at the time of insuring, and upon this sub- also at the time the loss by fire happens. The mere as- ject ’ signment of a policy would be useless, unless the subject insured be assigned also; but if a policy be assigned to a person already in possession of the subject insured, and the office allows the assignment, it may bind them, the assign¬ ment being as against them to be considered a new contract. Without reference to illegality, it would be highly danger¬ ous to permit any trafficking in policies against fire, and offices would be extremely negligent of their duty to the public if they consented to pay upon a policy where there was no accompanying interest. In the printed proposals of the offices in general it is declared, that, upon the death of an insurer, his interest in the policy shall be continued to his representative, to whom the property belongs, pro¬ vided such representative, before any new payment be made, procure his right to be indorsed on the policy at the office. In the proposals of the Hand in Hand Office it is de¬ clared, that, if the premises insured should be assigned, the assignment must be entered at the office within forty-two days after they are executed, or else that the assignee shall have no benefit thereby. In the proposals of the Union it is declared, that every member transferring his policy shall, within three months, give notice to the directors, and bring 70 LAW OF FIRE INSURANCE. Assignment of policy after the fire happens, with possession of the property insured before the fire, and no consent of the office to the as¬ signment. his policy to the office to have such transfer indorsed. The Westminster Office requires that the assignment shall be entered at the office as soon as possible. Some of the offices give notice generally upon the policy, that “ it shall be of no force if assigned, unless such as¬ signment be allowed by an entry in the books of the office, or indorsed on the policy.” Even without this provision, upon the general principles of law, it is very questionable whether the holder could have any legal demand against the insurers without notice to them; but this condition, more¬ over, requires allowance, (a) Upon reasonable principles, offices should have the power of exercising a discretion in the selection of the persons whose property they may be called upon to insure, and of late years frauds and fraudu¬ lent claims upon fire offices have been so frequent, and to so large an amount, that an attention to the character of the party proposing to insure, has become a subject of consider¬ able importance. 2. Although a person may have become possessed of the premises or goods insured before the time of the fire, if the policy of insurance which covers them be assigned to him after the fire happens, and without the consent of the office, % he cannot recover. In July 28, 1721, Richard Ireland (b) obtained a policy from the Sun Fire Office for the insurance of his house, the Angel Inn at Gravesend, with his goods therein, and it was thereby agreed, that so long as Ireland should pay 5s. a quarter, the society would satisfy the said Ireland, his executors, administrators and assigns, his loss not exceed¬ ing 1000/. Ireland afterwards died, and his son, being his sole executor, brought the policy to the office, and had an indorsement made thereon, that the same belonged to him, and afterwards paid a year’s premium up to Christmas, 1727. In August, 1727, the house was destroyed by fire; and, some time after, Lynch and another (the plaintiffs) applied (a) See insurance upon lives, post, chapter on Assignment of Policies. The principle is equally applicable. ( b ) Lynch and another, v. Dalzell and others, 4 Bro. P. C. 432, ed. Toml. OF ASSIGNMENT OF POLICIES, 71 to the office; alleged that they had purchased the house and goods of Anthony Ireland; that the same were their property at the time of the fire; that they had an assign¬ ment of the policy made to them at the time that the house and goods were assigned, and they produced an affidavit from R. Lynch, in which he swore that their loss by the burning of the house amounted to 500/. and upwards; and upon this affidavit was indorsed the certificate from the minister, churchwardens, &c.; but neither in the affidavit nor certificate was any mention made of any loss sustained by the plaintiffs by the burning of any goods, nor was any affidavit made by A. Ireland that he had suffered any loss. The plaintiffs, however, insisted that the office should pay them 1000/. for their loss by the burning of the house and goods; and they filed a bill in Chancery setting forth that A. Ireland, on the 24th of June, 1727, for 250/. assigned to them a lease of the house and stables, but that the goods for which the plaintiffs, as they alleged, were to pay 500/. being intended for one T. Church, who was to hold the inn under them, Ireland, by bill of sale of the same date, sold the same to Church for his own use. The bill also stated the assignment of the policy to the plaintiffs, and that, although the bill of sale of the goods was made to Church, yet the plaintiffs paid the purchase money, and Church assigned the bill of sale to them for securing it, and also released to the plaintiffs his interest in the policy. The defendants (certain directors of the office) by their answer alleged, that the affidavit produced was not agreea¬ ble to the proposals; that no assignment of the policy was made to the plaintiffs, nor any assignment of it made to them by Church till after the fire; they insisted that the policies issued by the office were not in their nature assign¬ able, being only contracts to make good the loss which the contracting party himself should sustain, and that no other person was entitled to any benefit from it. Witnesses were examined on both sides. It appeared, upon the plaintiff’s own evidence, that the agreement for the assignment of the policy, if any, was not till after the agreement for the pur- 72 LAW OF FIRE INSURANCE. Policies do not attach on the realty, but are special agree¬ ments with the persons in¬ suring - . Policies are not in their nature assignable. chase of Ireland’s term in the house, and that the assign¬ ment of it, though bearing date before, was not made till some time after the fire; so that the agreement for assigning the policy was voluntary on the part of Ireland, and inde¬ pendent of the bargain for the house, and not made till after Ireland’s interest in the house was determined, nor carried into execution till after the fire happened. As to the plaintiff’s property in the goods, they proved an as¬ signment from Church to them as a security for 300/., but omitted to state when this assignment was made, though the defendants, by their answer, had put the fact of time in issue. The respondents, on their part, proved that the office did not insure any persons longer than they continued their property in the thing insured, and, that persons deal¬ ing with them might not be mistaken, such notice was usually given. Lord Chancellor King said, “ These poli¬ cies are not insurances of the specific things mentioned to be insured, nor do such insurances attach on the realty , or in any manner go with the same as incident thereto , by any conveyance or assignment , but they are only special agreements with the persons insuring against such loss or damage as they may sustain. The party insuring must have a properly at the time of the loss, or he can sustain no loss, and consequently can be entitled to no satisfaction. There was no contract ever made between the office and the appellants for any insurance on the premises in ques¬ tion; not only the express words, but the end and design of the contract with Ireland do, in case of any loss, limit and restrain the satisfaction to such loss as should be sus¬ tained by Richard Ireland only; and the indorsement on the policy declared that right to his executor, Anthony Ire¬ land only. These policies are not in their nature assign¬ able, nor is the interest in them ever intended to be trails - ferable from one to another, without the express consent of the office. The transactions in the present case, by changing the property backwards and forwards, and ren¬ dering it uncertain whose the true property is, raise a sus¬ picion, and fully justify the caution of the office in prevent- OF ASSIGNMENT OF POLICIES. 73 ing the assignment without consent of the managers, which method is pursued by all the insurance offices. Besides, the appellant’s claim is at best founded only on an assign¬ ment never agreed for till the person insured had deter¬ mined his interest in the policy by parting with his whole property, and never executed till the loss had actually hap¬ pened.” His lordship therefore dismissed the bill. Upon this decree there was an appeal to the House of Lords, and, after hearing counsel on both sides, it was ordered and adjudged that the same should be dismissed, and the decree therein complained of affirmed. Some years afterwards this case was cited with appro¬ bation by Lord Hardwicke, and relied upon by him as the ground of his opinion, in the case of the Sadlers’ Company v. Badcock and others, (a) Ann Strode, having six years and a half to come in a lease of a house from the plaintiffs, on the 27th of April, 1734, became a proprietor of the Hand in Hand Office by insuring the sum of 400/. on the house for seven years, and, on paying 12s. down and 31. some time after, the company agreed “ to raise and pay out of the effects of the contribution stock the said sum of 400/. to her and her executors, administrators, and assigns, so often as the house should be burnt down within the same term, unless the directors should build the said house, and put it in as good plight as before the fire;” and on the back of the policy it was indorsed, that “ if this policy should he assigned , the assignment should he entered within twenty-one days after the making thereof.” Mrs. Strode’s lease expired at Midsummer, 1740. The house was not burnt down till the January after 1740; and she made an assignment of the policy to the plaintiffs the 23d of February after 1740. ( b ) The question was, whether the plaintiffs, the assignees of Mrs. Strode, were entitled to the 400/. or to have the house built again, or whether the house being burnt down after Mrs. Strode’s property ceased in it, the company were obliged to make good the loss to her assignee of the policy. The company made an order (a) 2 Atk. 554. (6) N. B. This was according to the old style. A lessee having an unexpired term for six years and a half in a house, in¬ sures for seven years. The house is burnt, and afterwards, but before the expiration of the policy, the in¬ sured assigns it to the reversioner without the con¬ currence of the office, the assig¬ nee cannot claim under the policy. 74 LAW OF FIRE INSURANCE. subsequent in time to Mrs. Strode’s policy in 1738, “ that whereas policies expire upon the property of the insured’s ceasing, if there is no application of the insured to assign or to have the loss made up, then the person having the property may insure the said house in the said office, not¬ withstanding the term for which the house was originally insured is expired.” There was evidence read for the plain¬ tiffs to show that they tendered the assignment to the de¬ fendants to enter in their books, but they refused to ac¬ cept of it. Lord Chancellor Hardwicke.—“ During the progress of this cause, while the defendants seemed to depend chiefly upon the subsequent order, I was of opinion against them; but upon hearing what was further offered, I think the plaintiffs are not entitled to be relieved. There may be three questions made in this cause. 1st. Whether this accident which has happened, is such a loss as obliges the defendants to make satisfaction to the plaintiffs? 2ndly. Whether, upon the terms of the original policy, the office is obliged to do it ? 3dly. Which is rather consequential of the former, whether the plaintiffs are properly assignees of Mrs. Strode under this policy? If this matter rested singly upon the policy itself, I should not think it such a loss as would oblige the defendants to make satisfaction under this policy. The state of the case is, Mrs. Strode was only a lessee, her time expired at Midsummer, 1740, the house was burnt down in January after, within the seven years; the plaintiffs, the Sadlers’ Company, were ground landlords, and entitled to the reversion of the term; upon the 23d of February, seven months after the expiration of the lease, and one month after the fire, the assignment was made, and in consideration of 5s. only, so that it must be taken as a voluntary assignment as it stands before me. It has been insisted, on the part of the defendants, that the plantiffs are not entitled to recover as standing in the place of Mrs. Strode, because she had no loss or damage, her interest ceasing before the fire happened. And this in¬ troduces the second and third questions. I am of opinion. OF ASSIGNMENT OF POLICIES. 75 it is necessary that the party insured should have an in¬ terest or property at the time of insuring and at the time the fire happens. It has been said for the plaintiffs, that it is in nature of a wager laid by the insurance company, and that it does not signify to whom they pay if lost. Now, these insurances from fire have been introduced in later times, and therefore differ from insurance of ships, because there interest or no interest is almost constantly inserted, and if not inserted you cannot recover unless you prove a property. ( a ) By the first clause in the deed of contribution in 1696, the year this society, called the Hand-in-Hand Office, incorporated themselves, the society are to make satisfaction in case of any loss by fire. To whom or for what loss are they to make satisfaction? Why, to the person insured, and for the loss he may have sus¬ tained, for it cannot properly he called insuring the thing, for there is no possibility of doing it, and therefore must mean insuring the person from damage. By the terms of the policy, the defendants might begin to build and repair within six days after the fire.happens. It has been truly said, this gives the society an option to pay or rebuild, and shows most manifestly they meant to insure upon the pro¬ perty of the insured, because nobody else can give them leave to lay even a brick, for another person might fancy a house of a different kind. Thus it stands upon the original agreement. The next question will be, whether the sub¬ sequent order, made by the defendants in. 1738, has made any alteration. I am of opinion it has not, for it was made only to explain a particular case in the policy; for it might have been a question whether Mrs. Strode could have come before the expiration of the term to examine the books of the office, and therefore this order was made to give her such a power. It has been strongly objected that the society could not make such an order. I am very tender of saying whether they can or not, because, on one hand, it might be hard to say that, as a society, they (a) This case was decided in the year 1743, previous to the stat, 19 Geo. 2, c. 57. 76 LAW OF FIRE INSURANCE. cannot make any by-order for the good of the society; on the other hand, it would be a dangerous thing to give them a power to make an alteration that may materially vary the interest of the insured. The assignment is not at all within the terms of this order, because it is plain it meant an assignment before the loss happened. Now, with re¬ gard to the loss happening before the assignment made, Mrs. Strode was entitled to nothing but what was to be paid back upon the deposit. It is plain she thought so; for if she had imagined she had been entitled to 400/. would any friend have advised her to make a present of it to the plaintiffs ? The case of Lynch v. Dalzell, in the House of Lords, shows how strict this Court and that House are in the construction of policies to avoid frauds. The bill here must be dismissed.” Distinction be- We may here observe, that as policies of insurance tween fire poh- a cr a j ns t fire cannot be assigned so as to entitle the assignee policies. to demand the sum insured without notice to the office ; (a) in this respect they appear to differ from marine policies, in which the contract of insurance is more specifically ap¬ plicable to the property insured rather than to the owner of it. Indeed, marine policies in England were formerly in blank as to the insured, until some mischiefs having arisen the law was altered by a statute of 25 Geo. 3, c. 44, which statute having been found productive of inconveni¬ ence .was subsequently repealed by stat. 23 Geo. 3, c. 26, which, though it restrains the making of policies in blank as a general rule, renders it necessary only to insert the name of one or more of the persons interested in the pro¬ perty insured, or of the consignee or consignees, or of the person resident in Great Britain who shall receive the order for or effect such policy, or of the person who shall give the order to the agent immediately employed to nego- ciate or effect such policy. The right to assign or give the benefit of a marine policy, when the property has been transferred also, does not ap¬ pear to have ever been disputed, (a) (a) See Delany v. Stoddart, 1 T.R. 22. Hibbert v. Carter, 1 T. R. 745. OF ASSIGNMENT OF POLICIES. 77 Another distinction may also be observed between ma¬ rine policies and those against fire. It is sufficient if a marine policy be effected after the interest in the property commences, if it be made in time to meet the risk insured against, (a) for the stat. 14 Geo. 3, c. 48, s. 1, does not extend to marine policies, and such a restraint would be highly prejudicial to commerce; but, as we have seen both by the decisions anterior to the statute, as well as by the statute, the insured must have an interest in the property at the time of effecting an insurance against fire, as well as when the loss happens. (a) Rhind v. Wilkinson, 2 Taunt. 237. ( 78 ) The general powers of agents of offices. Privity between the Crown and the agent of an office to recover the duties by extent. CHAPTER VII. OF THE AGENTS. 1. Of the Agents for the Offices. 2. Privity between the Crown and the Agents. S. Of the Agents for the Insured. 1. Upon the payment of a deposit at the head office or to the respective agents, the offices usually hold themselves liable for any loss by fire which may take place between the payment of the deposit and the making out the policy; and the slip, or memorandum of agreement usually deli¬ vered at the time of applying to insure, specifies the heads of the contract afterwards to be carried into effect. The powers of the agents, however, differ according to the rule of the different offices. In general, the agents are re¬ stricted from definitively undertaking that a policy shall be granted where large amounts are to be insured, or cir¬ cumstances of doubt or difficulty are involved; and where the agents are not authorized to bind the company, the slip or memorandum should be accompanied with a proviso to that effect. Where no special regulations are made, the general rule of principal and agent will apply. 2. It has been held, that there is a sufficient privity be¬ tween the Crown and the agent of an insurance office, who had received duties and not accounted for them, to enable the Crown to issue an extent against the agent’s goods. An agent for the County Fire Office became indebted to the office in a large sum of money for premiums and duties received on their account, which he was unable to pay, and he afterwards became bankrupt. It appeared that he had OF THE AGENTS. 79 received 177/. in the way of duties to the Crown, and an extent had issued against his property. Mr. Pollock ap¬ plied, on behalf of the assignees, to have the extent set aside. He argued that it was an experiment made by the insurance office to avoid the payment of the duties them¬ selves, for by stat. 22 Geo. 3, c. 48, (a) they were account¬ able to the Crown for the duties, and that the defendant was liable to the company only, and that the company ought to come in for a dividend like any other creditor. If the extent were enforced it would swallow up all the assets, and no other creditor would get any thing. But the Court w T ere of opinion, that as the defendant had received money which belonged to the Crown, there was a sufficient privity between him and the Crown to enable the extent to be issued.”—Motion refused. ( b ) 3. Insurances against fire are not in general effected by agents on the part 6f the insured, but where such is the case, the general rules as between principal and agent will apply, even if a person voluntarily, and without the expec¬ tation of any remuneration for his trouble, undertakes to procure an insurance to be effected, though, perhaps, he is not bound to perform his undertaking; yet if, in fact, he do proceed to execute it, he will be answerable for any negligence or unskilfulness in the conduct of it, as appears by the following case:(c)—in an action on the case, the declaration stated that the plaintiff' purchased certain pre¬ mises of the defendant, who had a subsisting policy from the Phoenix Fire Office, which he undertook to get re¬ newed on account of the plaintiff, and regularly transferred to him; that he did, in fact, renew the policy and paid 16/. which he charged to the plaintiff, but neglected to get it transferred from himself to the plaintiff by the proper in¬ dorsement, in consequence of which the plaintiff', who sus¬ tained a loss by fire, was unable to recover on the policy. (a) See also stat. 55 Geo. 3, c. 134, sec. 32. Appendix No. 2. ( b ) Ilex v. Wrangham. Excheq. May 2, 1831. MS. (c) Wilkinson v. Coverdale, 1 Esp. Rep. 75. Agent of the insured. An agent for the insured will be answerable for negligence, even without remu¬ neration, under circumstances. 80 LAW OF FIRE INSURANCE. It was admitted that there was no consideration moving from the plaintiff to the defendant, who had gratuitously undertaken to get the policy renewed and transferred, on which Lord Kenyon expressed a doubt whether any action could be maintained on such an undertaking. To remove this doubt, the plaintiff’s counsel cited Wallace v. Tell- fair, (a) a case similar to the present, in which Mr. Justice Buller ruled, that though there be no consideration for one party’s undertaking to procure an insurance to be effected by another, yet where a party voluntarily undertakes to do it, and proceeds to carry his undertaking into effect by getting a policy underwritten, but does it so negligently and unskilfully that the insured can derive no benefit from it, an action will lie against him. Lord Kenyon acquiesced in this distinction and suffered the cause to proceed, but the plaintiff failed in the proof of any such undertaking and was nonsuited. (a) 2 T. R. 188, n. * ( 81 ) CHAPTER VIII. OF EQUITIES ATTACHING UPON POLICIES. 1. In general, no Equity as between Landlord and Tenant . 2. Proceeds of Policies in general Payable to Execu¬ tors, fyc. 3. But where affected with a Trust, they may be Pay - able to Heir or Devisee. It may be sufficient to state, that at present it appears that no equity attaches upon the proceeds of policies in favour of third persons unless there be some contract, or agree¬ ment, or trust to that effect. A policy of insurance against fire is a distinct independent contract between the party effecting the insurance and the insured. («) 1. In Brown v. Quilter,(5) the plaintiff took premises of the defendant for a term of years, and in the lease cove¬ nanted to repair, &c. ( accidents by fire excepted,) the de¬ fendant covenanting in the usual manner for quiet enjoy¬ ment; the house was burnt down, the defendant having insured it for 500/. and received the insurance money* The defendant neglected to rebuild the house, and the plaintiff refused to pay the rent, which became due after the house was burnt; and the defendant having brought an action for the rent, the plaintiff brought a bill for an injunc¬ tion, and to compel the defendant either to rebuild the house or pay the insurance money to the plaintiff towards satisfaction of his loss. The defendant insisted upon his right to the insurance money, and to be paid the rent without rebuilding the house, but offered to discharge the plaintiff from his lease. Lord Northington (Lord Chan- (a) See ante, p. 72. (6) Ambl. t»19. G No equity at¬ taches upon the proceeds of a policy in favour of third persons. No equity, in general, as be-* tween landlord and tenant. 82 LAW OF FIRE INSURANCE. # cellor) seemed to be of opinion, that in this case, though the covenant did not extend to oblige the defendant to rebuild, yet that when an action is brought for rent after the house is burnt down, that was a good ground of equity for an in¬ junction till the house was rebuilt. The case, however, was afterwards compromised, and it does not amount to a decision; whatever of authority may attach to it, has been very much shaken by Hare v. Groves, (a) and Holtzapfell v. Baker, (b) Brown v. Quilter, however, differs from these latter cases, inasmuch as the landlord, who had in¬ sured, had received the insurance money, and therefore had the value of the thing, which was the subject of the contract with the lessee, and as to him therefore no loss had hap¬ pened. But, as was urged in argument in Holtzapfell v. Baker, it is extremely difficult to conceive how that distinct contract, merely for the advantage of the lessor, with which the lessee had no concern, can affect the right as between them. It was thrown out by the Lord Chancellor (Lord Eldon) in the course of the argument, that “ some of the fire offices reserve the option of paying the money or laying it out themselves, which may make a considerable differ¬ ence, as that option ought not to affect the lessee but to this it was objected, that this option is reserved merely for their own protection against fraud, and not for the benefit of the tenant. Although the cases cited do not go pre¬ cisely to the point of equities attaching upon policies, but to the question of payment of rent by lessees for premises after they have been burnt down, yet from the observations scattered in them, we may come to the conclusion, that the contract of insurance is confined to the parties, and that, as a general principle, no other person has any right in equity to the proceeds. This doctrine has been confirmed in a much later and stronger case, (c) The defendant, by indenture of March 25, 1820, demised to the plaintiff a cotton factory, with the steam boiler, for twenty-one years, &c. reserving a yearly (a) 3 Antr. 687. (c) Leeds v. Chatham, 1 Sim. 149. (6) 18 Yes. 115. OF EQUITIES ATTACHING UPON POLICIES. rent: the plaintiff covenanted to pay the rent during the term, and to repair and keep repaired the inside of the factory, the offices, fixtures, outhouses, and additions, and the steam boiler, engine, and apparatus thereto belonging, so long as the same would last, or could be rendered workable by repair; the defendant covenanted to maintain the outside brickwork, plastering, slating, tiling, and all other outer parts of the premises in good substantial and tenantable repair. There was no exception in respect of accidents by fire either in the covenant for payment of rent, or in the covenant to repair. On June 22, 1825, the factory, buildings, and premises were destroyed by fire. After the lease was granted, the defendant insured the fac¬ tory and buildings for 500/., the steam engine for 100/., the engine house for 60/., and the gearing for 40/., so that the total amount of the sums insured was 700/.; and shortly after the fire he received that sum. The defendant had commenced an action against the plaintiff for a year’s rent, ending the 24th of June, 1826. The bill prayed that it might be declared that the defendant was bound to lay out and apply the 700/., or a competent part thereof, together with the old materials, in and towards the rebuilding and reinstating the factory and premises, the steam boiler, steam engine, &c. and that he might be decreed forthwith to lay out the same accordingly, the plaintiff offering to make good out of his own monies, what the 700/. and the old materials should be insufficient for the purpose, to such extent as he should be deemed liable: and that it might also be declared, that the plaintiff’was not bound to pay the rent during such time as the factory, &c. should con¬ tinue unbuilt and unrestored; and that the defendant might be restrained from farther proceeding in the action. The defendant demurred to the bill for want of equity. The Vice-Chancellor.—“ There being in the lease no exception as to the case of accident by fire, the plaintiff at law continues bound to pay his rent; he continues bound also by his covenant to keep in repair the inside work of the factory, the steam engine, and the other apparatus, and g 2 84 LAW OF FIRE INSURANCE. all the outbuildings and fixtures which were on the pre¬ mises. On the other hand, the defendant, for want of the exception as to accident by fire, continues bound by his covenant to repair the outer part of the buildings, and also by his covenant to replace the steam boiler and other ap¬ paratus during the last fourteen years of the term, and when from long use they are no longer workable, under these covenants the defendant is bound to rebuild the fac¬ tory, and to cover in the same with proper roofing, and slating or tiling; and the plaintiff is bound to rebuild the outbuildings, and to do all necessary works to complete the inside work of the factory when it is built and covered in by the defendant. It appears to me, that in this respect, equity must follow the law. The plaintiff' might have pro¬ vided in the lease for a suspension of rent in the case of accident by fire, but not having done so, a Court of Equity cannot supply that provision which he has omitted to make for himself; and it must be intended that the purpose of the parties was according to the legal effect of the contract. With respect to the equity , which the plaintiff’ alleges to arise from the defendant’s receipt of the insurance money, there is no satisfactory principle to support it. The de¬ fendant, having so contracted with the plaintiff’ as to render himself liable to rebuild the outer work of the factory in case of accident by fire, has very prudently protected him¬ self by insurance from the loss he would otherwise have sustained by such an accident. But upon what principle can it be that the plaintiff’s situation is to be changed by that precaution on the part of the defendant, with which the plaintiff had nothing whatever to do? The plaintiff has sought his protection in the contract by the covenant which he has required from the defendant, and to those covenants he must alone resort.” Whether pro¬ ceeds of policy are payable to heir or execu¬ tors and admi¬ nistrators of insured. c 2. If the insurance money, as secured by a policy against fire, is made payable to the insured, his executors, admi¬ nistrators, and assigns; and houses and buildings in fee are insured, which afterwards descend to the heir, and are OF EQUITIES ATTACHING UPON POLICIES. 85 burnt during the continuance of the policy, the executors of the insured, and not the heir, will be entitled to receive the proceeds of the policy. A decision (a) to this effect has been made with reference to the constitution and policy of the Hand-in-Hand Office, by one of the articles of which it was declared, that the interest of a member dying should survive to his executors, administrators, and assigns; and by an order of the society, reciting that every insurance be¬ came void at the time when the property of the person insured expired, it was ordered, that upon applying at the office and declaring their property in the houses insured to be expired, any persons may have their accounts adjusted and deposits due paid to them; and that if they do not. apply nor assign the policy to the person having the pro¬ perty of the house insured, the person possessed of the property may insure the house notwithstanding the former policy be not expired. The policy was made payable to the insured, her executors, administrators, and assigns; and it was declared, that when any assignment of the policy be made, such assignment should be entered in the office books within forty-two days, or else the assignee shall have no benefit. Under the circumstances before men¬ tioned certain houses had descended to the heir, one of the houses was burnt, the policy not being expired, and no assignment to him had been made, the directors of the office refusing to pay upon the application of the heir, he filed his bill, which was dismissed with costs. It was contended, amongst other points, that the executor was a trustee for the heir. The Lord Chancellor.—“ It is utterly impossible to make the executor a trustee. It seems to me perfectly clear upon the plan of this society, which was formed in 1696,(5) that it is not like the other insurance offices since established, but that it is a personal contract, not connected with the real property nor affecting the real property. No (a) Mildmay v. Folgham, 3 Ves. 472. (£>) In general, however, policies are not made payable to the insured, his heirs, &cc. but to the executors, administrators, &c. 86 LAW OF FIRE INSURANCE. Under special circumstances the proceeds of the policy may belong to the heir or devisee. person can have the benefit of the policy blit the personal representative, with whom they make up the account, and who is entitled to the dividend.” 3. If, however, by the act of the insured, or the party entitled to the benefit of the proceeds of the policy, those proceeds should become clothed with the character of real estate, (a) or with a trust, the party entitled to the real estate, as heir or devisee, will become entitled to them, in prefer¬ ence to those who may claim them as personalty. As where A. was tenant for life, remainder to B. for life, remainder to A. in fee, and during the life of A. houses on the estate, insured by him, were burnt down, and the in¬ surance money was paid to A., and was placed by him in the funds in his name. A. by his will devised the estate to C. in fee, (subject to B.’s life interest,) and his personal estate to B., and made B. his executor, B. applied part of the insurance money to repairing a house upon the estate; the insurance money unapplied remained standing in A.’s name. B. by his will bequeathed the residue of his personal pro¬ perty, after stating the circumstances as to the fund standing in A.’s name, as follows: “ Whereas I am sole executor under the will of my brother John Bell, Esq. late of Fludyer Street, Whitehall, deceased, and there is now standing in the books of the Governor and Company of the Bank of England the sum of 1159/. 16s. 7d. Three per cent. Re- dued Bank Annuities, I hereby inform my executors and sister, Mrs. Lucy Bell, that the said sum of 1159/. 16s. 7 d. is part of and belongs to what was the real estate of the said John Bell, of which real estate I am now possessed as tenant for life, See.; and I do further declare for the in¬ formation of my executors and others whom it may con¬ cern, that the said sum of 1159/. 16s. 7 d. is the balance or remainder of monies paid by the Sun Fire Office to the said John Bell for houses belonging to the said real estate, which were burnt down in the lifetime of the said John Bell, and were not rebuilt by him; and which monies so («) Norris v. Harrison, 2 Mad. 268. OF EQUITIES ATTACHING UPON POLICIES. 87 paid to the said John Bell were by him laid out in the purchase of 2817/. 5s. 7d. Three per cent. Reduced Annui¬ ties, out of which last mentioned sum, after the decease of the said John Bell, when the house, No. 128, in Leaden- hall Street, then belonging to me, was burnt down, I took the sum of 1657/. 9,s. Three per cent. Reduced Bank An¬ nuities, and with the produce of that sum added to the sum of 1125/. sterling, which I received from the Hand-in- Hand Insurance Office for the said house, I built the pre¬ sent house, No. 128, in Leadenhall Street, to the great improvement of the said estate,” &c. The testator then be¬ queaths several sums of Bank stock, but not otherwise than as aforesaid referring to the sum of 1159/. 16s. 7 d. Three per cents.: and it was held, that under these cir¬ cumstances the sum was subject to the uses of the settle¬ ment, and passed to C. the devisee in fee. So where a testator had devised and bequeathed all his real and personal estate to the defendant the executrix, charged with an annuity to his widow, who filed a bill for an account and security of the annuity, and a house, the only real estate, was burnt down after the filing the bill, having been insured by the testator in his lifetime, and the policy having been renewed by the defendant; the Court (the Vice-Chancellor) ordered the insurance money to be paid into Court, it being to be taken that the defen¬ dant had renewed in the character in which she was entitled to renew, viz. as executrix, and the proceeds as affected with a trust for the benefit of the parties interested in the estate, (a) («) Parry v. Ashley, 3 Sim. 97. ( 88 ) CHAPTER IX. OF PROCEEDINGS ON POLICIES OF INSURANCE AGAINST FIRE, 1. Jurisdiction of the Courts of Common Law. 2. Arbitration. 3. Declaration. 4. Pleas to a Declaration upon a Policy under Seal. 5. Evidence upon the Trial. 1. The jurisdiction upon questions arising out of this con- bdong^to the° n tract exclusively belongs to the Courts of Common Law. courts of com- Courts of Equity, indeed, sometimes in cases of insurance, as in all others, interpose their authority for the purpose of advancing justice; thus they will compel a trustee to permit his name to be used by the cestui que trust in an action on a policy of insurance, («) or they will issue commissions Courts of equity r ,i • ,• r> • , i j , n will lend their l° r the examination ot witnesses residing abroad or out ot assistance, the jurisdiction of the Court, and grant injunctions to stay the proceedings at law until the return of such commis¬ sions;^) or they will compel a plaintiff at law to make a full discovery by his answer upon oath of all circumstances within his knowledge touching the matters in question, and the answer may be given in evidence at the trial of the action; or they will compel a plaintiff at law to deliver up or permit an inspection of all papers and documents which are material to the matters in dispute ;(c) except, however, in such cases, and those in which policies or the proceeds may be affected by a trust, Courts of Equity have no juris¬ diction in questions of insurance. (a) Per Lord Hardwicke, Motteux v. London Assurance Comp. 1 Atk. 547. (/>) Chitty v. Selwin, 2 Atk. 359. (c) De GhekofF v. London Assurance Company, 3 Bro. P, C, 525; 2 Marsh. 685. PROCEEDINGS ON POLICIES OF INSURANCE. 89 A bill of interpleader has been held to lie in favour of Bill of inter- an insurance company against the landlord of the premises P leatJeK which have been burnt down after having been insured by him, (and who brought an action against the office upon the policy,) and against the tenant, who filed a bill against the landlord and the office for specific performance of an agreement for a lease, and claiming a right to have the money laid out in rebuilding the premises, (a) 2. The deeds of settlement of most of the companies Arbitration, contain a clause enabling the parties to refer matters in dispute to arbitration. This clause is, however, unneces¬ sary, as without it the parties may, if they agree to do so, refer to arbitration; but if they do not agree, the authority of the supreme Courts at Westminster is so transcendant that nothing but the express words of an act of parliament can take away or abridge their jurisdiction in any case, (b) such a clause, therefore, will not compel a party not agree¬ ing to a reference to have recourse to one; even a covenant between the parties to refer matters in dispute will not oust the Courts of their jurisdiction, (c) If an award be actually made, it will be a bar to an action; or if the par¬ ties have submitted their differences to arbitration, and the reference be still depending, it would also appear to be a bar. (cl) Some of the companies issue their policies under seal, Policies under others not under seal. Where a company consists of ^nde^seal numerous proprietors it has been thought more advisable, as a further security to the insured, to issue policies under seal, thereby putting it out of the power of the insurers (parties to the deed) from pleading in abatement for want of parties, for otherwise, in strictness, every proprietor ought to be a party. The policy under seal, however, is (a) Paris v. Gilliam, Jones v. Paris, Coop. Ca. Chan. 56. ( b ) 2 Hawk. P. C. 286; 2 Marsh, on Insurance, 684; Kill v. Hollister, 1 Wils. 129. (c) Thompson v. Charnock, 8 T. It. 139. ( d) Per curiam, Kill v. Hollister, 1 Wils, 129. 90 LAW OF FIRE INSURANCE. Declaration upon policies under seal. attended with the inconvenience, as against the company, that it is not competent for them to plead the general issue, and give the special matter of their defence in evidence, but must resort to plead specially the several matters of their defence. The form of action in cases of policies under seal is in general covenant. A general form of declaration in debt is given against the two public incorporated companies, (the Royal Exchange.and the London Assurance,) by stat. 6 Geo. 1, c. 18, s. 4, 11 Geo. 1, c. 30, s. 43, but it is not usually adopted in practice, (a) 3. In a declaration upon a policy under seal, the policy should be recited verbatim, together with all the proposals and conditions to which it refers, constituting a condition precedent, (b) and any material variance or omission will be fatal, (c) The declaration should also state that the plain¬ tiff, at the time of making the policy , and from thence until the loss and damage, was interested (d) in the goods or premises mentioned in the policy to the amount and value of the sum claimed; it should also state the loss by fire, and that the fire did not happen by any invasion, &c. (or by any of the excepted cases,) and that the plaintiff' thereby sustained a loss and damage to the amount of the sum claimed. It should also state his compliance with the conditions previously recited, and his payment, and the acceptance by the defendants of the premium, and that the stock and funds of the company are sufficient to pay to the plaintiff the amount of the damages sustained by him. He should then aver the breach, that he hath not in any man¬ ner been paid or made good his damage, but that the same is unpaid; that the defendants have broken the covenant (a) 3 Chitty on Plead. 238, 325. (b ) See 3 Chitty on Pleading, 326. ( c ) 2 Marsh. 686 ; 3 Chitty on Pleading, 99. ( d,) By stat. 14 Geo. 3, c. 48, s. 3, in all eases where the insured hath inte¬ rest in such life, &c. event or events , no greater sum shall be recovered or received from the insurer or insurers, than the amount or value of the interest of the insured in such life, &c. or other event or events. 91 PROCEEDINGS ON POLICIES OF INSURANCE. made with the plaintiff, and the damages are generally laid at a sum somewhat larger than the sum insured for. (a) When the policy is not under seal , assumpsit is the pro- Declaration per form of action to be brought upon it against the in- undersea I surers; and as the action in such case is founded on a par¬ ticular and express undertaking made upon a consideration, upon which the law would not, by necessary implication, raise the promise specified in the policy, the plaintiff must declare specially upon it. ( b ) The contents of the decla¬ ration upon such a policy are much the same, except in matter of form, as before stated to be essential to the decla¬ ration upon a policy under seal, and, as in the latter kind of policy, the contract must be set forth with precision, and x any material variance or omission will be equally fatal, ( c ) it is usual to add a count for money had and received, and an account stated, to enable the plaintiff’ to avail himself of any balance which the defendants may have admitted to be due. (d) 4. The pleas to an action of covenant upon a policy Pleas to an under seal necessarily vary according to circumstances, policies under The most usual, however, are an absolute denial that the sea] - articles mentioned in the declaration were burnt or con¬ sumed, and this plea puts the plaintiff upon the proof of the quantity, quality, amount and value of his loss. Where buildings, ricks, or the like, exposed to public view, are burnt, it is not usual to include them in such a plea: as the declaration usually states that the plaintiff delivered in as particular an account of the loss and damage as the nature of the case admitted of (according to one of the conditions common to most policies); the defendants also, by another plea, usually deny this fact, and this also puts in issue the quantity, quality, amount and value of the articles alleged to be consumed. It is usual also, in another plea, to allege fraud in the claim made, where the case warrants it, (a) As to the averment, that the share of the capital of the subscribing direc¬ tors is more than sufficient to pay the loss or damage, see ante, p. 10. (b) 2 Marsh. 687. (c) 2 Marsh. 686. (d) 3 Chitty on Pleading, 99. 92 LAW OF FT RE INSURANCE. which it commonly does whenever the offices are driven to resist an action, and they then refer to the condition with reference to fraud and false swearing, common to all fire policies, and recited in the declaration, whereby the plaintiff forfeits all benefit under his policy, except such as the company may think fit to allow. As the conditions of most offices require the account of the loss and damage sent in to the office to be verified by affidavit, it is very usual, by another plea, to allege false swearing in the claim made; such a plea contains the language of the affidavit, alleges that in such affidavit there is false swearing, refers to the before-mentioned condition, and states in general terms the points on which it is false. Upon the subject of bringing money into Court, the reader is referred to the book of practice. There is a. special clause upon this subject in stat. 19 Geo. 2, c. 37, s. 7, but, upon reference to the preamble ( a) and general intent of the act, it seems doubtful whether it can be applicable to any other than cases of marine insurance. Some doubts have, indeed, existed upon the subject, from the general language of this particular section. The words are these: “ and whereas it is unreasonable that any per¬ son or persons, body or bodies corporate, subscribing, seal¬ ing, or otherwise executing any policy or policies of in¬ surance, should be put to any costs, charges, or expenses in any suit or action at law to be brought on such policy or policies, in case such person or persons, body or bodies corporate, is or are ready or willing to pay such damages and costs as shall and may be really and bona fide due thereon, which at present they are liable to, and often forced unjustly to bear, for that in many cases no money can be brought into Court;” for remedy whereof be it enacted, by the authority aforesaid, ) was brought by the plaintiff to recover from the defendants, directors of the Atlas, the sum of 1000/. upon a policy effected by him on the life of a person named Ilowes. Howes had formerly resided at Warminster, and (a) Huguenin v. Bayley, 6 Taunt. 186. ( b ) Everett v. Desborough, 5 Bing. 503. See also Maynard v. Rhodes, 5 D. & Ry. 266. The fact that a party to be in¬ sured described as resident in a place, but in truth a prisoner in the gaol, is material. The party to be insured must give a reference to the usual medical attend¬ ant. A party insuring upon the life of another, is bound by the misrepresenta¬ tion of the lat¬ ter. The latter is to be taken as the agent of the former. LAW OF LIFE INSURANCE. 120 1 » afterwards went to reside at Bath. Whilst living at the former place he was sober and temperate in his habits, and was to all appearance a man enjoying a good bodily state of health: whilst at the latter place he gave himself up to habits of intoxication, and ultimately died of a fit of apo¬ plexy. Upon the occasion of the plaintiff’s insuring Howes’s life, the directors of the Atlas, through their agent, presented the plaintiff with a paper containing ques¬ tions touching the health of the person to be insured, and which were most material to be answered. Amongst others, there was one requiring the name of the medical man who usually and of late attended the party whose life was to be insured, in order that he might be referred to. The plaintiff accordingly inquired of Howes who was his usual medical attendant, and who had been attending last. Upon which he referred to a Dr. Vicary, of Warminster. However, it turned out on the evidence that Vicary had not attended Howes for nearly twenty years. Upon this misrepresentation of Howes, the question was raised, whe¬ ther it did not vitiate the policy, although unknown to the plaintiff. A nominal verdict was taken for the plaintiff, with leave to the defendants to move to enter a nonsuit. On showing cause against the rule which had previously been obtained, it was admitted, that it was a rule of law that in cases of this kind, if the party insuring the life of another practised any concealment or deceit on the under¬ writers, with regard to any material fact concerning the life to be insured, that upon proof of that fact the policy was vitiated; but that in this case, if any deceit or concealment was practised, it was practised by Howes, whose life was insured, and not by the plaintiff, who was ignorant that any misrepresentation was made by Howes. On the other side it was contended, that the plaintiff in this case must be treated as principal , and the party whose life was insured as the agent , for to what better authority could he go to obtain information necessary to answer the questions put to him than to Howes himself? He acted upon these representations of Howes, who appeared to be WARRANTY OF AGE, &C. OF INSURED. 121 his agent, and he therefore should be held liable as the principal for the acts of the agent. The Court adopted the latter argument, and thought, that from all the circum¬ stances, Howes should be considered as the agent of the plaintiff, who, acting upon his representations, should therefore be answerable for the acts of his agent. Rule for the nonsuit made absolute. So where a party effected an insurance on the life of A party insuring another, who at the time of examination concealed a dis- also bou f d b y order, of which he subsequently died, it was held, that the of a disorder by plaintiff was bound by the breach of the conditions on s^ e § aity m * which the policy was effected, although not privy to the falsehood. («) (a) Maynard v. Rhodes, 5 D. & R. 266; 1 Carr. 360. ( 122 ) Insurances without interest void. CHAPTER III. OF THE INTEREST IN THE LIFE INSURED. 1. General Principles. 2. Interest of Creditor in ilie Life of a Debtor. 3. Interest of Trustee in Life of cestui que trust. 4. Debtor or Grantor of Annuity Insuring. Resides the most obvious and ordinary mode of insurance, that of a person insuring his own life in a sum payable to his personal representatives, much of the business of the offices consists of nominee insurances, that is, where a per¬ son insures the life of another. As life insurance became more generally extended, it appears, that like many other beneficial practices, it became subject to abuse. Persons were in the habit of insuring the lives of others with whom they had no connection, and in whom they had no interest, merely by way of gambling speculations, and it requires no very great discernment to see that such a prac¬ tice was pregnant with serious mischief, and held out dan¬ gerous temptations on the one hand to unprincipled specu¬ lators, and imminent danger to the unfortunate persons who might happen to be selected by them as subjects of insurance. The legislature became so convinced of the evil, that the practice of life insurance has since been regu¬ lated by act of parliament, whereby these insurances with¬ out interest are considered void. By the stat. 14 Geo. 3, c. 48, s. 1, it is enacted, that no insurance shall be made by any person or persons, bodies politic or corporate, on the life or lives of any person or persons, or any other event or events whatsoever , wherein the person or persons for whose use or benefit, or on whose account, such policy or policies shall be made, shall OF THE INTEREST IN THE LIFE INSURED. 1 23 have no interest , or by way of gaming or wagering: and that every insurance made contrary to the true intent and meaning of this act, shall he null and void to all intents and purposes whatsoever. And that it shall not be lawful to make any policy or policies on the life or lives of any person or persons or other event or events, without inserting in such policy or policies the name or names of the person or persons in¬ terested therein, or for whose use or benefit, or on whose - account, such policy is so made or underwrote. S. 2. That in all cases where the insured hath an interest in • such life or lives, event or events, no greater sum shall be recovered or received from the insurer or insurers than the amount or value of the interest of the insured in such life or lives or other event or events. S. 3. The fourth section contains a provision that the act shall not extend to insurances bona fide made on ships or goods. Very few questions have arisen upon the subject of inte¬ rest, because the offices are never in the habit of taking that objection, unless they are under the necessity of resist¬ ing payment upon some other fair and proper ground, as fraudulent misrepresentation or concealment; and if they are driven to resist on such a ground, they then, in order to make their case the stronger, sometimes also object to the want of interest, when the policy is open to the objection. The offices are, in fact, constantly in the habit of taking insurances where the interest is upon a contingency which may very shortly be determined, and if the parties choose to continue the policy bona fide after the interest ceases, they never meet with any difficulty in recovering: so also they frequently grant policies upon interests of so slender and precarious a kind, that although it may be difficult to deny some kind of interest, it is such as a court of law would scarcely recognise. («) This practice of the offices, (a) The author has seen a policy effected by a mother upon a son’s life, the interest being no other than that he lived with her, and contributed largely to the expenses of housekeeping. So upon the life of a creditor who forbore to call in the debt, but which was likely to be called in by his personal representa¬ tives at his death. 124 A creditor has an insurable in terest in the life of his debtor. LAW OF LIFE INSURANCE. of paying upon policies, without raising questions as to in¬ terest, is so general, that it has been even recognised in courts of law. As where a person bought a policy of insu¬ rance of another after the interest had expired, or was on the point of expiring, and, some years after the sale and assignment, the executor of the purchaser, understanding that the office was not in law bound to pay upon the policy, brought an action against the seller to recover back the purchase-money. But Lord Tenterden, C. J. told the jury, that the only point for their consideration was, whether, at the time of the sale, there was any misrepresentation or concealment to vitiate the policy. It was true in point of law that the insurance ceased with the interest, but then they had it in evidence that the insurers never availed themselves of that objection. («) Verdict for defendant. 2. A bona fide creditor has undoubtedly an interest in the life of his debtor, at least where he has only the per¬ sonal security of the debtor, and this interest is insurable within the statute. An insurance was effected on the life of Lord Newhaven from the 1st of December, 1792, to the 1st of December, 1793. In an action on the policy, the only question was as to the plaintiff’s interest in the life insured, which, it was contended, was not sufficient to take this case out of the above statute. It appeared that Lord Newhaven was indebted to the plaintiff and a Mr. Mitchell in a large sum of money, part of which debt had been assigned by them to another person, the remainder, being more than the amount of the sum insured, was, upon a settlement of accounts be¬ tween the plaintiff and Mitchell, agreed by them to remain to the account of Mitchell only. Lord Kenyon was of opinion that this debt was a sufficient interest. He said, ) for if the annuity were to be received from time to time by the annuitant, there could be no final division during the annuitant’s life. The stat. 49 Geo. 3, c. 121, s. 17, first authorized a direct proof of annuities, and antecedently to that act, if the annuity was secured by a covenant only, the arrears only could be proved; if secured by bond and covenant and there had been no failure, nothing could be proved; but if a failure had occurred, there was this difference between a bond and a covenant, that under a covenant the arrears only could be proved, but under a bond forfeited before the bankruptcy, the value of the annuity, as well as the arrears could be proved; and this clause only provides, that in order to give the annuitant some proportion of the pro¬ perty, it is no longer necessary that there should have been a breach of the condition of the bond, (c) (a) See sect. 55, and also sect. 121. (/;) Ex parte Thistlewood, 19 Ves. 245, per Lord Eldon ; Ex parte La Compte, 1 Atk. 251; Ex parte Artis, 2 Yes. 489. (r) Ex parte Thistlewood, 19 Ves, 245. ON ANNUITIES FOR LIVES. 185 The mode of ascertaing the value of an annuity, as directed by the last bankruptcy statute, is consistent with the rule previously laid down by Lord Eldon in Ex parte Whitehead, (a) I n Ex parte Thistlewood, indeed, a case of very special circumstances, Lord Eldon departed from this rule, permitting proof to be made upon a calculation with reference to the age and improved health of the an¬ nuitant, notwithstanding the value so ascertained exceeded the price originally given for the annuity, and the grantee had enjoyed the annuity for the space of two years, but Lord Eldon declared that the decision was made upon the special circumstances. It has however been held since by Sir J. Leach, Vice-Chancellor, in Ex parte Fisher, (b) that the commissioners are precluded by the 54th section of the last statute from taking into consideration the altered state of health of the annuitant. His Honour also held, that where the consideration for the annuity is not money but property, the price paid by the grantee for that property is not the criterion of the value, if such value be altered by accidental circumstances. In a case before Lord Loughborough, where proof was offered under bonds for securing an annuity, and was re¬ jected on the old ground that there was no arrear at the date of the bankruptcy, and therefore that the bonds were not forfeited; and it appearing that the bonds were void under the annuity act from a defect in the memorial in one, and the non-enrolment of the other, the petition prayed that the petitioner should be admitted a creditor for the sums actually advanced by him. His lordship dismissed the petition on the ground that the petitioner having in¬ sisted on his securities at the date of the commission it was not the same debt, (c) In a later case, however, Ex parte Wright, (d) under similar circumstances, except that the creditor had not insisted on his security, Lord Eldon The altered state of health of an annuitant cannot now be taken into con¬ sideration. Of proof where the annuity is defective under the statutes. (а) 19 Yes. 557 ; 2 Rose, 358. (б) 2 G. 6c J. 102. (c) Ex parte James, 5 Yes, 708. (d) 19 Yes. 255. 186 LAW OF ANNUITIES. Where the agents become bankrupt. Of proof where the grantor has secured the an¬ nuity by real securities. A mere stipula¬ tion for pay¬ ment of annual interest for for¬ bearance on a sum of money cannot be prov¬ ed as an annuity. Surety of grantor of an¬ nuity bankrupt. * Sic. arrears. permitted the grantee to prove the balance remaining due of the money advanced. Agents will, in general, be presumed to receive the con¬ sideration money on account of their principals. In a case where A. purchased an annuity of B., through the agency of the bankrupts, and the consideration money was re¬ ceived by them as agents for B. and placed to B.’s account, it was held that A. could not prove the consideration paid unless the grant of the annuity was merely colourable, and contrived by the bankrupts for the purpose of obtaining A.’s money for their own use. (a) When the grantor of an annuity has secured it on real property and becomes bankrupt, an order will be made that the real security be sold, and the produce applied in satisfaction of so much of the arrears and value of the an¬ nuity as the same shall extend to satisfy, and that the grantee be allowed to prove for the residue. ( b) An annuity implies that the principal sum is gone for ever, and is to be satisfied by yearly periodical payments, therefore a mere stipulation for the payment of annual in¬ terest for the forbearance of a sum of money cannot be proved as an annuity, (c) 10. By the Bankrupt Act, 6 Geo. 4, c. 16, s. 55, it is enacted, that it shall not be lawful for any person entitled to any annuity granted by any bankrupt, to sue any person who may be collateral surety for the payment of such an¬ nuity, until such annuitant shall have proved under the commission against such bankrupt for the value of such annuity and for the payment* thereof; and if such surety after such proof pay the amount proved as aforesaid, he shall thereby be discharged from all claims in respect of such annuity; and if such surety shall not (before any pay¬ ment of the said annuity subsequent to the bankruptcy (a) Ex parte Shaw, 2 G. & J. 106. ( b ) Ex parte Key, 1 Mad. 426; Ex parte Slack, 1 G. &c J. 346. (c) Winter v. Mousley, 2 B. and A. 806-7. ON ANNUITIES FOR LIVES. 187 shall have become due,) pay the sum so proved as afore¬ said, he may be said * for the accruing payments of such * Sic. sued. annuity until such annuitant shall have been paid or satis¬ fied the amount so proved, with interest thereon, at the rate of four per cent, per annum, from the time of notice of such proof, and of the amount thereof, being given to such surety; and after such payment or satisfaction such surety shall stand in the place of such annuitant, in respect of such proof as aforesaid, to the amount so paid or satisfied as aforesaid by such surety; and the certificate of the bankrupt shall be a discharge to him from all claims of such annuitant or of such surety in respect of such annuity, provided that such surety shall be entitled to credit on account with such annuitant for any dividends received by such annuitant under the commission, before such surety shall have fully paid or satisfied the amount so proved as aforesaid. It still appears rather questionable, whether, where the annuitant proves the value of the annuity and receives all the dividends obtainable upon such proof, and then comes upon the surety for the deficiency after the bankrupt has obtained his certificate, the certificate will discharge the bankrupt from the claims of the surety, because if the an¬ nuitant avails himself to the extent of his proof, without giving notice to the surety, or making any claim against him until after a final dividend is declared, the surety will have no opportunity of proving under the commission, and upon this point might arise the question, whether, to entitle himself to any claim against the bankrupt, he is bound to take immediate notice of the annuitant’s proof, and pay the amount so proved; for it may be observed, that under the 55th section, the annuitant does not appear to be bound to give notice to the surety of his proof, except for the pur¬ pose of entitling himself to interest from the surety upon the sum proved, (a) (a) See Watkins v. Flanagan, 1 Bing. 413 ; 3B.&A.186; 1G.&J. 199. Welch v. Welch, 4 M. & S. 333, And see 1 Deacon’s Bankrupt Law, 232. 188 LAW OF ANNUITIES. Of the surety in general. Where the agent makes advances, his right as against the surety. Rights as be¬ tween surety and co-surety. 11. Where a party unconnected with the grantor, and for a separate consideration, guarantees the payment of an annuity, that is an assurance not necessary to be en¬ rolled;^) and where a surety to an annuity had charged his own freehold estate of greater value than the annuity, in trust to pay the annuity, if in arrear, it was held, that he was a grantor within the exception, s. 8, of 17 Geo. 8, and that a memorial thereof was not requisite, (b) Upon the grant of an annuity the agent between the grantor and the grantee was made trustee and receiver, and afterwards, upon the faith of the securities, advanced out of his own funds several sums on account of the an¬ nuity, and received commission afterwards. The grantor failed, and the securities fell short; and it was held, that the agent could not treat the advances as loans, and resort to the surety. The surety was discharged to the extent of the sums received on account of the annuity, (c) So where annuity agents had become bankrupts, and had in their accounts and pass-book given the grantor credit for sums as received on account of annuities, it was held, they could not afterwards retract; but where sums had been entered to his credit, but accompanied with a minute “ not received,” and where other sums were originally credited, but as to which evidence was given of his subsequent assent to their being replaced to his debit, it was held, that the assignees were entitled to withdraw them from his credit and be allowed them in the account, (cl) A. one of the sureties of an annuity, by arrangement with the assignee of the annuity, became entitled, after payment of a certain sum of money, to receive the annual payments; and it was held, that as between the sureties the annuity was to be deemed as subsisting, and not to re¬ lease the other co-sureties from liability to contribute; nor («) Sandilands v. Marsh, 2 B. & A. 673. ( 1 )) Darwin v. Lincoln, 5 B. & A. 444. (c) Williamson v. Gould, 1 Bing. 171. (d) Shaw v. Dartnall, 6 B. & Cr. 56. And see Shaw v. Woodcock, 1 B. & Cr. 73. I ON ANNUITIES FOR LIVES. 189 was the liability varied by the fact, that stock originally assigned as a further security for the annuity, by a deed between A. and B. the assignee, was ultimately to revest in A.(a) It w r as also held in the same case, that where one of the three co-sureties paid money on account of the annuity, after the bankruptcy of a co-surety, that the other was lia¬ ble to an action of contribution, although he had obtained his certificate, inasmuch as one surety could not prove the value of the annuity under the commission against his co¬ surety ; but that he could not at law be compelled to repay more than one-third of the sum paid on account of the an¬ nuity, although the third surety had become insolvent at the time of such payment. In equity it has been held, that one of three co-sureties having become insolvent, the one who has paid may recover the moiety against the other who is solvent. ( b ) 12. The following are extracts from stat. 55 Geo. 3, Stamp duties, c. 184, so far as relates to duties on instruments connected with annuities. S. 31. The releases and other conveyances of annuities Releases and or rent-charges made in the original grant thereof, subject a^uitiesTre to be redeemed or repurchased, shall, on the repurchase exempted from , n , p ill , , . ad valorem duty thereof, be exempted from the ad valorem duty hereby mi- 0 n repurchase, posed on conveyances on the sale of any property, and shall be charged only with the ordinary duty on deeds or instruments of the like kind not upon a sale. Sched. p. 1. Bond in England, and personal bond in Scotland, for the payment of any definitive and certain sum of money, an ad valorem duty. Bond in England, and personal or heritable bond in Scotland, given as the only or principal security for the payment of any annuity, upon the original creation and sale thereof. (See Conveyance of Lands, post.) Bond in England, and personal bond in Scotland, given as a collateral or auxiliary security for the payment of any (a) Browne v. Ley, 6 B. & Cr. 689. (h) Peter v. Rich, 1 Cha* Ca. 34. 190 LAW OF ANNUITIES. annuity, upon the original creation and sale thereof, where the same shall be granted, or conveyed, or secured, by any other deed or instrument liable to and charged with the ad valorem duty hereafter imposed upon the sale of any property, 1/. Bond in England, and personal or heritable bond in Scotland, given as a security for the payment of any an¬ nuity, (except upon the original creation and sale thereof,) or of any sum or sums of money at stated periods, (not being interest for any principal sum, nor rent increased or payable upon any lease or tack,) for any definite and cer¬ tain term, so that the total amount of the money to be paid can be previously ascertained, the same duty as on a bond of the like nature for the payment of a sum of money equal to such amount for which an ad valorem duty is payable. Bond in England, and personal and heritable bond in Scotland, given as a security for the payment of an annuity, (except as aforesaid,) or of any sum or sums of money at stated periods, (not being interest for any principal sum, nor rent reserved or payable upon any lease or tack for the term of life, or any other indefinite period, so that the whole money to be paid cannot be previously ascertained,) ad valorem. General Directions respecting Bonds .—When any bond as aforesaid, together with any schedule, receipt, or other matter put or indorsed thereon, or annexed thereto, shall contain 2160 words or upwards, there shall be charged for every entire quantity of 1080 words contained therein, over and above the first 1080 words, a further progressive duty of \l. 5s. And when any such bond as aforesaid shall be given as a security for the payment of a sum of money, and also of a share in any of the stocks or funds before mentioned, or an annuity , or both, or for the payment of an annuity , and also of a share in any of the said stocks or funds, the pro¬ per ad valorem duty shall be charged in respect of each. And where any such bond as aforesaid shall be given as a security for the payment or transfer to different persons, ON ANNUITIES FOR LIVES. 191 of separate and distinct sums of money, or annuities , or shares in any of the stocks or funds before mentioned, the proper ad valorem duty shall be charged in respect of each separate and distinct sum of money, or annuity , or share in any of the said stocks or funds therein specified and secured, and not upon the aggregate amount thereof. And where any bond in England shall be given as a security for the performance of any covenant or agreement for the payment or transfer of any sum of money, or an¬ nuity, or any share in any of the stocks or funds before mentioned, such bond shall be charged with the same duty as if the same had been immediately given for the payment or transfer of such money, or annuity , or share of the said stocks or funds. And where in England any bond for the payment or transfer, or for the performance of any covenant for the payment or transfer, of any sum of money, or annuity, or any share in any of the stocks or funds before mentioned, shall be contained in one and the same deed or writing with any other matter or thing in this schedule specifically charged with any duty, (except any declaration of trust of the money, annuity, stock or fund secured,) such deed or writing shall be charged with the same duties as such bond and other matter or thing would have been charged with if contained in separate deeds. But where in England a bond for the performance of covenants or agreements, (other than for the payment or transfer of any sum of money, or annuity , or any share in any of the said stocks or funds,) shall be contained in the same deed or writing with any other matter or thing, the same shall not be charged separately, but the whole shall be considered as one deed, and be charged accordingly under its proper denomination. Conveyance, whether grant, disposition, lease, assign¬ ment, transfer, release, renunciation, or of any other kind whatsoever, upon the sale of any lands, hereditaments, rents, annuities, or other property, real or personol, herita¬ ble or moveable, or of any right, title, interest, or claim in, 192 LAW OF ANNUITIES. to, out of, or upon any lands, tenements, rents, annuities , or other property; that is to say, for and in respect of the principal or only deed, instrument, or writing, whereby the lands or other things sold shall be granted, leased, assigned, transferred, released, renounced, or otherwise conveyed to, or vested in the purchaser or purchasers, or any other person or persons, by his, her, or their direc¬ tion, ad valorem. And where upon the sale of any annuity or other right, not before in existence, the same shall not be granted by actual grant or conveyance, but shall only be secured by bond, warrant of attorney, covenant, contract, or other¬ wise, the bond or other instrument by which the same shall be secured, or some one of such instruments, if there be more than one, shall be deemed and taken to be liable to the same duty as an actual grant or conveyance. And where there shall be several deeds, instruments, or writings, for completing the title to the property sold, such of them as are not liable to the said ad valorem duty shall be charged with the duty to which the same may be liable under any general or particular description of such deeds, instruments, or writings contained in this schedule. Heed of any kind whatever not otherwise charged in this schedule, nor expressly exempted from all stamp duty, 11. 15s. And where the same, together with any schedule, receipt, or other matter, (a) put or endorsed thereon or annexed thereto, shall contain 2160 words or upwards, then for every entire quantity of 1080 words contained therein, over and above the first 1080 words, a further progressive duty of 11 , 5s. Memorial to be registered or enrolled pursuant to act of parliament, of any deed or instrument, deeds or instru¬ ments, whereby any annuity shall be granted or secured in England, 11. (a) An endorsement on an annuity deed containing a clause of redemption, if made subsequent to execution of it, must be stamped, otherwise it cannot be received in evidence. Schumann v* Whetherhead, 1 East, 537. ON ANNUITIES FOR LIVES. 193 And for every piece of vellum, parchment, or paper, upon which any such memorial shall be written, after the first, a further progressive duty of 1/. Warrant of Attorney , (with or without a release of er¬ rors,) to confess and enter up a judgment in any of his Majesty’s Courts at Westminster, or in any of the Courts of Great Sessions in Wales, or of the counties palatine of Chester, Lancaster, and Durham, which shall be given as a security for the payment of any sum or sums of money, or for the transfer of any share or shares in any of the government or parliamentary stocks or funds, or in the stock and funds of the Governor and Company of the Bank of England, or of the East India Company, or of the South Sea Company, the same duty as on a bond for the like purpose; save and except when such payment or transfer shall he already secured by a bond, mortgage, or other se¬ curity, which shall ha ve paid the ad valorem duty on bonds or mortgages imposed in this schedule, or by the act of the 44th or 48th of Geo. 3. o ( 194 . ) A memorial be enrolled. CHAPTER II. CONSTRUCTION OF THE STATUTES CONCERNING® ANNUITIES. 1. A Memorial to be enrolled. 2. Every Deed, 8fc. granting an Annuity, to be enrolled. ?). Contents of Memorial. 4. The Witnesses. 5. The Consideration. 6. The Exceptions of the Acts, where no Memorial is necessary. 1. By the first of the statutes («) upon the subject of annui¬ ties, (17 Geo. 3, c. 26,) it is directed, “ that a memorial of every deed, bond, instrument, or other assurance, whereby an annuity or rent charge shall, after the passing of the act, be granted for one or more life or lives, or for any term of years, or greater estate, determinable on one or more life or lives, shall within twenty days after the execution of such deed, &c. be enrolled in Chancery; every such me¬ morial shall contain the day of the month and the year when the deed, &c. bears date, and the names of all the parties, and for whom any of them are trustees, and of all the witnesses; and shall set forth the annual sum or sums to be paid, and the name of the person or persons for whose life or lives the annuity is granted, and the consi¬ deration or considerations of granting the same, otherwise every such deed, &c. shall be void.” (a) Although this statute has been repealed by the more recent (52 Geo. 3,) yet as many existing annuities may depend upon it, and as several of the decisions under it are equally applicable to the latter statute, it is necessary to refer to it. CONSTRUCTION OF STATUTES CONCERNING ANNUITIES. 195 The second section relates only to annuities granted previously to the statute. S. 3. “ In every deed, instrument, or other assurance, The deeds are whereby any annuity or rent-charge shall, from and after consTdmtion 6 the passing of this act, be granted, or attempted to be and names at granted, the consideration really and bona fide, (which len&t,l ‘ shall be in money only,) and also the name or names of the person or persons by whom and on whose behalf the said consideration, or any part thereof, shall be advanced, shall be fully and truly set forth and described in words at length: and in case the same shall not be fully and truly set forth and described, every such deed, &c. shall be void.” S. 4. “ If any part of the consideration shall be returned Where the con- to the person advancing the same, or in case the considera- tumed'o^not 16 ' tion, or any part of it, is paid in notes, if any of the notes, paid, or paid in with the privity and consent of the person advancing the mined,°the same, shall not be paid when due, or shall be cancelled or 9 0U1 1 t m , ay ° 1 rder destroyed without being first paid; or if the consideration, cancelled, or any part of it, is. paid in goods; or if any part of the consideration is retained on pretence of answering the future payments of the annuity, or any other pretence; in all and every of the aforesaid cases, it shall and may be lawful for the person by whom the annuity or rent-charge is made payable to apply to the Court, in which any action is brought for payment of the annuity, or judgment en¬ tered, by motion, to stay proceedings in the judgment or action; and if it shall appear to the Court that such prac- tices as aforesaid, or any of them, have been used, it shall be lawful for the Court to order the deed, bond, instru¬ ment, or other assurance, to be cancelled, and the judg¬ ment, if any has been entered, to be cancelled.” S. 5. “ A particular roll shall be provided and kept by Directions re- the clerks of the enrolments in Chancery, or their deputy, lating 10 J he , in which such memorials shall be entered, and every such memorials, memorial shall be duly enrolled in order of time, as the same shall be brought to the office; and the said clerks of the enrolments, or their deputy, shall specify upon the roll o 2 19 G LAW OF ANNUITIES. Fees thereon. Contracts for the purchase of annuities with persons under age void, and persons soli¬ citing or pro¬ curing, guilty of a misdemeanor. Persons taking more than 10s. in the 100/. brokerage, guilty of a mis¬ demeanor. the certain day, hour, and time on which such memorial is brought to the office, and shall grant a certificate of the enrolment thereof when required, and there shall be paid for the enrolment of every such memorial the sum of Is. and no more, in case the same do not exceed 200 words ; but if such memorial shall exceed 200 words, then after the rate and proportion of 6d. for every 100 words, and the like fees for every certificate and copy given; and the fee of Is. for every search in the office, and no more.” S. 6. “ All contracts for the purchase of any annuity with any person, being under the age of twenty-one, shall be utterly void, any attempt to confirm the same after such person shall have attained the age of twenty-one years not¬ withstanding; and if any person shall either in person, by letter, agent, or otherwise procure, engage, solicit, or ask any person being under the age of twenty-one years, to grant or attempt to grant any annuity or rent-charge, or to execute any bond, deed, or other instrument for securing the same; or shall advance, or procure, or treat for any money to be advanced to any person under the age of twenty-one years, upon consideration of any annuity or rent-charge to be secured or granted by such infant, after he or she shall have attained his or her age of twenty-one years; or shall induce, solicit, or procure any infant upon any treaty or transaction for money advanced, or to be ad¬ vanced, to make oath, or to give his or her word of honour, or solemn promise, that she or he will not plead infancy, or make any other defence against the demand of any such annuity or rent-charge, or the repayment of the money advanced to him or her when under age; or that when he or she comes of age, he or she will confirm or ratify, or in any way substantiate, such annuity or rent-charge; every such person shall be guilty of a misdemeanor.” S. 7. “ Solicitors, scriveners, brokers, and others, asking or receiving directly or indirectly any sums of money or other reward, for soliciting or procuring the loan, or for the brokerage of any money paid as the consideration of such annuity, &c. above the sum of lOs. for every 100/. CONSTRUCTION OF STATUTES CONCERNING ANNUITIES. 197 shall be guilty of a misdemeanor. The person who shall have paid the money shall be a competent witness.” S. 8. The act does not extend to any annuity or rent- charge given by will, or by marriage settlement, or for the advancement of a child, nor to any annuity or rent-charge secured upon lands of equal or greater annual value, whereof the grantor was seised in fee-simple or fee-tail in possession at the time of the grant, or secured by the actual transfer of stock in any of the public funds, the dividends whereof are of equal or greater annual value than the said annuity; nor to any voluntary annuity granted without regard to pecuniary consideration; nor to any annuity, &c. granted by any body corporate, or under any authority or trust created by act of parliament; nor to any annuity where the sum to be paid does not exceed 10/. annually, unless there be more than one such last- meYitioned annuity from the same grantor to or in trust for the same person. Few statutes produced so much litigation as the first sections of this act, relating to the memorial and the in¬ struments of assurance to be memorialized, as observed by Lord Eldon in Duff v. Atkinson, (a) “ The misfortune is, that to those who mean improperly, the act holds out a language they cannot be expected to understand, the Courts not understanding it, and it embarrasses those meaning to engage in a righteous transaction, by throwing round it doubts from which no advice can disentangle them.” The result was that the legislature was obliged again to interfere, and substituted stat. 53 Geo. 3, c. 141, which, after repealing the former act as to any future annuities, laid down a form of enrolment of the memorial, which has required but slight alterations of the legislature to render it free from doubt or obscurity. 2. By stat. 53 Geo. 3, c. 141, (repealing stat. 17 Geo* 3, c. 26,) it is enacted by s. 2, “ that within thirty days after the («) 8 Ves. 577* Cases excepted from the act. Every deed, &c< granting an an¬ nuity, to be en* rolled. 198 LAW OF ANNUITIES. Companies to be described by their usual firm. Names of per¬ sons beneficially interested to be stated. Copies of deeds or instruments securing annui- execution of every deed, bond, instrument, or other as¬ surance, whereby an annuity or rent-charge shall, from and after the passing of this act, be granted for one or more life or lives, or for any term of years or greater estate deter¬ minable on one or more life or lives, a memorial of the date of every such deed , bond, &c. of the names of all the parties and of all the witnesses thereto, and of the person or persons for ivhose life or lives such annuity or rent- charge shall be granted, and of the person or persons by whom the same is to be beneficially received, the pecuniary consideration or considerations for granting the same, and the annual sum or stuns to be paid , shall be enrolled in Chancery, in the form or to the effect following, (a) with such alterations therein as the nature and circumstances of any particular case may reasonably require, otherwise every such deed , bond, &c. shall be null and void to all intents and purposes.” S. 3. “ If any such annuity shall be granted by or to or for the benefit of any company exceeding in number ten persons , which company shall be formed for the purpose of granting or purchasing annuities, it shall be sufficient in any such memorial to describe such company by the usual firm or name of trade .” S. 4. “ In every deed, bond, &c. or other assurance, whereby any annuity or rent-charge shall be granted, or attempted to be granted, for one or more life or lives, or for any term of years or greater estate determinable on one or more life or lives, where the person or persons, to whom such annuity shall be granted or secured to be paid, shall not be entitled thereto beneficially, the name or names of the person or persons, who is or are intended to take the annuity beneficially , shall be described in such or the like manner as hereinbefore required in the enrolment, other¬ wise every such deed, &c. or other assurance, shall be void.” S. 5. “ In case any person or persons, by whom any an¬ nuity or rent-charge, of which such particulars as aforesaid (a) See Appendix, No. 10. CONSTRUCTION OF STATUTES CONCERNING ANNUITIES. are hereby required to be enrolled, shall for the time being ties, i be payable, shall be desirous of obtaining a copy of every or any deed, &c. or other assurance whereby such annuity or rent-charge was granted, and of such his, &c. desire, shall give twenty-one days’ notice in writing to the person or persons for the time being entitled to such annuity or rent- charge, such person or persons shall, on or before the ex¬ piration of such twenty-one days, unless prevented by fire or other inevitable accident, and in that case, if the as¬ surances shall not be destroyed by such accident, then as soon after as such impediment shall be removed, send or deliver in to the person or persons requiring the same, a copy of every deed, &c. or other assurance whereby such annuity or rent-charge was granted, or of such of the assurances as in such notice shall be required, and such last mentioned person, &c. shall at the time of receiving the same pay to the person, &c. furnishing the same, a sum after the rate of sixpence for every 100 words contained in every such copy, and also the reasonable costs of sending or delivering the same, and the person, &c. holding the original instruments by which such annuity, &c. shall be • secured, shall suffer the person, &c. to whom such copies shall be delivered or sent, to examine the same with the originals ; and in case such copies shall not be sent or deli¬ vered, or the person, &c. holding the original instrument shall refuse to suffer such copies to be examined therewith according to the directions of this act, it shall be lawful for the person, &c. to whom the annuity, &c. is payable, to take out a summons from any of his majesty’s justices of his Courts of King’s Bench or Common Pleas, requiring the person, &c. neglecting to send or deliver such copies, or refusing to suffer the same to be examined with the original instrument as aforesaid, to appear before such judge and show cause on the premises; and it shall be lawful for the judge, before whom such person, &c. shall be summoned, to make such order for the production of the instrument by which such annuity, &c. shall be secured, and for suf¬ fering the complainant to take copies thereof and examine 199 ay be ob- on pay- i a fee. 200 LAW OP ANNUITIES. Proceedings against the grantor of an annuity may be stayed if the consideration is not properly paid or with¬ held. And the instru¬ ments may be cancelled and judgment va¬ cated. A book is to be kept by the clerks of enrol¬ ment in Chan¬ cery. the same, or the copies delivered with the original instru¬ ment, and otherwise in the premises as to such judge shall seem meet.” S. 6. “ If any part of the consideration for the purchase of any such annuity or rent-charge shall be returned to the person advancing the same, or in case such consideration, or any part of it, shall be paid in notes, if any of the notes, with the privity and consent of the party advancing the same, shall not be paid when due, or shall be cancelled or destroyed without being first paid; or if such consideration is expressed to be paid in money, but the same, or any part of it, shall be paid in goods, or if the consideration of any part of it shall be retained, on pretence of answering the future payments of the annuity or rent-charge, or any other pretence; in all and every the aforesaid cases, it shall be lawful for the person to whom the annuity or rent-charge is made payable, or whose property is liable to be charged or affected thereby, to apply to the Court, in which any action shall be brought for the payment of the annuity or rent- charge, or judgment entered, on motion, to stay proceedings on the action or judgment, and if it shall appear to the Court that such practices as aforesaid, or any of them, have been used, it shall and may be lawful for the Court to order every deed, bond, instrument, or other assurance, whereby the annuity or rent-charge is secured, to be cancelled, and the judgment, if any has been entered, to be vacated.” S. 7. “ A particular book shall be provided and kept by the clerks of the enrolments in Chancery, or their deputy, in which such particulars as hereinbefore mentioned shall be entered alphabetically by the names of the grantors, in order of time as the same shall be brought to the office, and the said clerks of the enrolments, or their deputy, shall specify in the book the certain day, hour, and time on which such particulars are brought to the office, and shall grant a certificate of the entry thereof when required ; and there shall be paid for every such entry 20s. only, and the fee of Is. for every certificate and copy given, and the fee of Is. for every search in the office, and no more.” CONSTRUCTION OF STATUTES CONCERNING ANNUITIES. 201 S. 8. “ All contracts for the purchase of any annuity or rent-charge with any person, being under the age of twenty- one years, shall be void, any attempt to confirm the same, after such person shall have attained the age of twenty-one years notwithstanding; and if any person shall either in person, or by letter, agent, or otherwise howsoever, pro¬ cure, engage, solicit, or ask any person, being under the age of twenty-one years, to grant, or attempt to grant any annuity or rent-charge, or to execute any bond, deed, or other instrument for securing the same, or shall advance, or procure, or treat for any money to be advanced for any person under the age of twenty-one years, upon considera¬ tion of any annuity or rent-charge to be secured or granted by such infant after he or she shall have attained his or her age of twenty-one years, or shall induce, solicit, or procure any infant, upon any treaty or transaction for money ad¬ vanced or to be advanced, to make oath, or to give his or her word of honour that he or she will not plead infancy, or make any other defence against the demand of any such annuity or rent-charge, or the repayment of the money advanced to him or her when under age, or that when he or she comes of age, he or she will confirm or ratify, or in any way substantiate such annuity or rent-charge, every such person shall be guilty of a misdemeanor.” S. 9. “ All and every solicitors, scriveners, and brokers, and other persons who, after the passing of this act, shall ask or receive, directly or indirectly, any sum or sums of money, or any other kind of gratuity or reward for the soli¬ citing or procuring the loan, and for the brokerage of any money that shall be actually and bona fide advanced and paid as and for the price or consideration of any such an¬ nuity and rent-charge, over and above the sum of 10«s. for every 100/. so actually and bona fide advanced and paid, shall be deemed and adjudged guilty of a misdemeanor.” S. 10. “ This act shall not extend to Scotland or Ire¬ land, nor to any annuity given by will or marriage settle¬ ment, or for the advancement of a child, nor to any annuity or rent-charge secured upon freehold or copyhold, or cus- Oontracts for the purchase of annuities with persons under age void ; and persons in¬ ducing infants to grant annui¬ ties guilty of misdemeanor. Asking or ob¬ taining more than 10$. in the 100/. brokerage a misdemeanor. Exceptions of the act. 20 2 LAW OF ANNUITIES. Contents of memorial. tomary lands in Great Britain or Ireland, or in any of his majesty’s possessions beyond the seas, of equal or greater annual value than the said annuity, over and above any other annuity and the interest of any principal sum charged or secured thereon, of which the grantee had notice at the time of the grant, whereof the grantor is seised in fee-sim¬ ple or fee-tail in possession, or the fee-simple whereof in possession, the grantor is enabled to charge at the time of the grant, or secured by the actual transfer of stock in any of the public funds, the dividends whereof are of equal or greater annual value than the said annuity; nor to any voluntary annuity or rent-charge granted without regard to pecuniary consideration or money’s worth; nor to any an¬ nuity or rent-charge granted by any body corporate, or under any authority or trust created by act of parliament.” As the statute (a) of the 17 Geo.o, therefore, only affects annuities granted before that of the 53 Geo. 3, it will scarcely be necessary at this time of day to notice the decisions upon it, except such as may by analogy bear upon the latter statute, many of the clauses of the two statutes being nearly similar. 3. The memorial should express every deed, instrument, or other assurance for securing the annuity, as well as deeds granting it; (b) although the omission is not of so fatal a nature to the whole transaction as it was held to be under the former act, yet the particular instrument omitted will have no legal force or effect, (c) It was held necessary to express in the memorial a will which the grantor was required to make and deposit with the grantee, and which she was to make an affidavit not to revoke; (cl) also a bond to pay a sum of money, if the grantor went abroad in a military capacity, (e) (a) Most of the cases under this statute are collected in Mr. Plowden’s work on Annuities, and in the notes of Sir Win. Evans upon the same statute in his Collection. (b) Hood v. Burlton, 2 Ves. 29 ; Rosher v. Harding, 2 T. R. 670. (c) See stat. 7 Geo. 4, c. 75. (of) Ex parte Mackenzie, 4 Taunt. 323. (e) Chawner v. Whaley, 3 East, 500. CONSTRUCTION OF STATUTES CONCERNING ANNUITIES. 203 It was not sufficient to notice some of the securities only in the recital of the annuity deed; (a) they must all be memorialized. Thus a warrant of attorney to confess judgment, (b) but the judgment signed thereon needed not be set out unless it were the only security, (c) There was some doubt as to the necessity of stating a fine, or the effect of stating it inaccurately, (cl) Under stat. 53 Geo. 3, it is sufficient to describe in the memorial an annuity granted for a term of years determin¬ able on lives, as “ an annuity for lives,” and no description of cestui que vie is necessary, nor is it necessary to mention the penalty for which judgment is entered up.(c) This statute does not extend to cases of fair and bona fide sale of interests in land, where the consideration in whole or in part may be an annuity payable to the vendor, (f) But where the dividends of certain stock were assigned, with a proviso for a proportionate part of the dividends then accruing, between the date of the assignment and the day of the first growing due, it was held in a court of equity to be virtually a grant of an annuity, and that it ought therefore to be memorialized, (g) An annuity deed contained the release of another an¬ nuity ; it was held that such circumstance need not be set out in the memorial, but that the instrument was suffici¬ ently described under 53 Geo. 3, as “ the grant of an annuity.” (4) An enrolment was held to be unnecessary where the consideration for the grant of an annuity to the parents was I . f -• ■* i • > ' ► (a) Van Braarn v. Isaacs, 1 Bos. & Pull. 451. (If) Davidson v. Lord Foley, 2 II. Bla. 12; Hopkins v. Waller, 4 T. R. 463. (c) Sherron v. Oxlade, 4 T. R. 824. (d) Bradford v. Burland, 14 East, 445. (e) Barber v. Gamson, 4 B. & A. 281. ( f ) James v. James, 2 B. & B. 702. (g) Charretie v. Vause, 1 Sim. 153 ; and see Hood v. Burlton, 2 Ves. jun. 29; Brown v. Likes, 14 Ves. 302. ( h ) Crowther v. Wentworth, 6 Barn, and Cr. 366. 204 LAW OF ANNUITIES. Only the parti¬ cular deed not enrolled is void. their giving up the farm they occupied and the stock thereon, (a) Under stat. 53 Geo. 3, the clause of redemption need not be inserted in the memorial. ( b ) Under stat. 17 Geo. 3, where an annuity was granted under a trust deed to raise money by annuities, it was held not necessary to enrol the trust deed, (c) nor was it necessary to enrol an old annuity bond assigned to secure a smaller annuity to a second annuitant, (d) From the language of the two statutes as to the memo¬ rial, the 17th Geo. 3, requiring a memorial of “ every deed , bond , instrument , or other assurance,” the 53d Geo. 3, requiring a memorial “ of the date of every such deed,” &c„ the cases upon 17th Geo. 3, may be considered as applica¬ ble to the latter statute, with this distinction, that whilst the former required a memorial of the deeds themselves, that is, of the substantial parts of them, the latter requires only the dates , parties , witnesses, &c. thereof. A serious question arose under the former act, whether the omission to memorialize a particular instrument vitiated the whole transaction, or only the particular instrument. Upon which Lord Kenyon differed in opinion from Lord Loughbo¬ rough. Some additional weight has been given to Lord Loughborough’s opinion, because he drew the act; that circumstance however affords it no legitimate authority, Lord Kenyon being of opinion that the particular instrument only was vitiated, (e) whilst Lord Loughborough held that the omission vitiated the whole transaction. The legisla¬ ture has, however, by stat. 3 Geo. 4, c. 93, s. 2, enacted and declared that every deed, &c. granting any annuity, &c. and of which a memorial shall have been duly enrolled, notwithstanding the omission to enrol any other deed, &c. for securing such annuity, &c. shall be valid. (а) Tetley v. Tetley, 4 Bing. 214. (б) Yems v. Smith, 3 13. & A. 206. (c) O’Callaghan v. Ingilby, 9 East, 135. ( d ) Henderson v. Countess of Glencairn, 2 Taunt. 235. ( e ) See Ex parte Chester, 4 T. R. 694; Hart v. Lovelace, 6 T. R. 471; Duke of Bolton v. Williams, 2 Yes. jun., 184; 4 Bro. C. C. 310. CONSTRUCTION OF STATUTES CONCERNING ANNUITIES. 205 4. It was held under the stat. 17th Geo. 3, that it As to the wit- nesses* was not sufficient to state that all the instruments were attested by A. B. C. and D. or one of them, (a) so that a memorial stating the deeds to be attested by A. B. C. and D. was held insufficient, if all of them were not attested by all those witnesses, (b) Also that the omission of the Christian name of one of the witnesses, as attesting one of the instruments, did not defeat the annuity, if the name were truly stated, as to the attestation of the other instruments, (c) and that it was suf¬ ficient to state, that the securities were executed in the pre¬ sence of A. B., without adding that he attested them, (d) It has been held, under stat. 53 Geo. 3, that where the enrolment took place within thirty days after the execution by the grantee, though before the execution of the grantor, it would be sufficient, otherwise when the grantor was abroad it might be impossible to comply with the act; and that it appeared that the statute did not require that there should be any attesting witnesses, but only if there were any that their names should appear upon the memorial. ( e ) Under the same statute it was held in the case of Darwin v. Lincoln and Lock ,{f) that the word “ of,” contained in the form prescribed by that act in the column relating to the witnesses and immediately following their names, coupled with the act itself, imported that the place of resi¬ dence and description of the witnesses should be inserted. This opinion of the Court of King’s Bench was felt to be of very serious concern, as these requisites having been in many instances not complied with, numerous other an¬ nuity transactions were involved in it besides the one in question. The legislature therefore interfered by stat. 3 Geo. 4, c. 93, s. 1, and thereby enacted and declared that by the (a) Hart v. Lovelace, 6 T. It. 471. (/>) Ex parte Mackreth, 2 East, 563. (c) Watts v. Millard, 5 T. R. 598. () which contained similar circumstances, the decree was that “ the defendant (the grantee’s executor,) admitting that he had received more than was due to him for principal and interest,” the several deeds therein mentioned ought to be set aside, and delivered up to be cancelled, and that the defendant pay the plaintitF the costs of the suit. So that there the de¬ fendant was allowed to retain the surplus. In the next case, Bromley v. Holland, (c) only a few months later than Byne v. Vivian, the Master of the Rolls ( 41 ) See Duke of Bolton v. Williams, 2 Yes. 138. (6) 5 Yes. 609. (c) 5 Yes. 610. OF PROCEEDINGS IN RESPECT OF ANNUITIES. 217 (Lord Alvanley) yet doubted the jurisdiction. The plaintiff, it appeared, had come into equity upon a legal objection, to have the securities delivered up after two unsuccessful ap¬ plications to the Court of King’s Bench, and his Lordship, with reference to that part of the case, said “ he shall not now avail himself of any objection that was the ground of application to the Court of King’s Bench:” Byne v. Vivian is certainly a very strong authority in favour of the interpo¬ sition of the Court, and goes farther than I am inclined to go. This is a very hard case. It is the case of an as¬ signee, not a dealer in annuities, having advanced her money with the concurrence of the plaintiff, who, after two unsuc¬ cessful attempts at law, now comes upon a legal objection, as to which great doubts have been entertained, though the point must now be considered settled. I will not disturb cmy 'payments made before the bill was filed” His Lord- ship, on a subsequent day, said “ I have changed my opinion as to the terms of relief, for I think I should not do justice unless I make the decree upon the repayment of the whole sum of 600/. (the original purchase money), though there is a small difference between that and the sum paid upon the assignment. I consider it as an assignment of an annuity of 100/. a year redeemable upon the repayment of 600/. with the arrears to that time. I consider the defendant as having purchased that annuity, and all payments made be¬ fore the objection was taken are such as a Court of equity cannot order to be repaid. There was nothing illegal or immoral in the receipt of them, though the payments could not have been enforced. The only decree I feel myself at liberty to make is for redemption on the payment of the whole sum, unless the defendant will consent to take the money advanced by her.” Lord Alvanley’s decree, however, as to the mode of relief, was reversed by Lord Eldon, (a) and an account was directed of the consideration paid by the original grantee of the annuity, with interest at 5 per cent., and of the payments of the annuity to the grantee, or any person claiming under him by assignment or other - (a) 7 Yes. 3. • 218 LAW OF ANNUITIES. The principle of relief is the in¬ validity of the grant and not redemption. Where an annu¬ ity is set aside grantee has no specific lien on the estate or fund on which it is. secured. wise , to be applied in discharge of the interest and principal of the consideration, and if the consideration with interest should appear to be fully repaid, or if not, upon payment by the plaintiff of what should be remaining due from him, the securities to be delivered up, &c. with costs: and his Lordship held that the principle of relief was not redemp¬ tion but the invalidity of the grant, and that an assignee, unless under special circumstances, is in the situation of the grantee. It has been held, that where an annuity is set aside for non-compliance with the act, that the grantee has no lien on the estate on which it is secured for the price of the annuity, (a) In Angell v. Hadden, (b) the decree referred it to the Master to inquire whether an annuity had been properly enrolled; the Master having reported against the enrolment, it was objected by the defendant, the annuitant, on a re¬ hearing, that the decree had been pronounced after two several orders made in this Court in another cause for payment of the annuity, and after a rule to show cause in favour of the annuity, in the Court of King’s Bench, had been discharged. But the Court held, that this was not a sufficient ground for setting aside the decree, for the former cause, in which those orders were obtained, was not insti¬ tuted for the purpose of setting aside the annuities, nor were they a subject of discussion, and this Court has juris¬ diction to give relief, notwithstanding the rejection of a summary application to a court of law for the purpose of setting aside an annuity. The Court also held, upon the authority of the Duke of Bolton v. Williams, (c) that the annuitant was not entitled to a specific lien , in respect of the consideration of the annuity, upon arrears of the rent-charge paid into Court under the decree. Lord Loughborough’s language, in the Duke of Bolton v. Wil¬ liams, upon the same point, was, ) Hicks v. Hicks, 3 East, 16. (c) Scurfield v. Gowland, 6 East, 241. (d) Waters v. Mansell, 3 Taunt. 56. (e) Ex parte Shaw, 5 Ves. 620. (f) Hoffman v. Cooke, 5 Ves. 623 ; and see Gwynne v. Heaton, 1 Bro. C. C. 1 ; Heathcote v. Paignon, 2 Bro. Cha. Ca. 167. APPENDIX. No. I. Average Clause in Policy of Insurance against Fire. Provided always and it is hereby declared, that in case the pro¬ perty insured by this policy in all the buildings, places, or limits above mentioned, shall at the breaking out of any fire, or fires, be collectively of greater value than the sum insured thereon, the said company shall pay and make good to the insured such a proportion only of the loss or damage sustained as the amount insured shall bear to the whole property aforesaid at the time when such fire or fires shall first happen. But it is at the same declared that if the said insured shall, at the time of any fire, be insured in this or any other office, on any specific parcel of goods, or on goods in any specified building or buildings, place or places, included in the terms of this insurance, this policy shall not extend to cover the same, except only as far as relates to any excess of value beyond the amount of such specified insurance or insurances, which excess is hereby declared to be under the protection of this policy, and subject to average as aforesaid. No. II. The Collection and Payment of the Duties on Fire Insu¬ rances by the Offices , Stat. 55 Geo. 3, c. 184, s. 32. The per-centage duty on insurances against loss by fire granted by this act shall be collected and received from the persons whose property shall be insured, for the use of his Majesty, &Ci APPENDIX NO. II. 990 The duties to be received by the companies, Quarterly ac¬ counts to be de¬ livered by the companies. by the public companies, &c. licensed, or who ought to be licensed, pursuant to stat. 22 Geo. 3, c. 48, and by the Royal Exchange and London Assurance Companies respectively, at the time of their making, renewing, or continuing of, or receiv¬ ing the premium for the insurances in respect of which the duty shall be payable, and for the whole term or period for which the insurances shall be made, renewed, or continued; and such duty shall be accounted for and paid over in the manner directed by this and the said last mentioned act; and the Royal Exchange and London Assurance Corporations shall be subject to all the provisions and regulations of this and the said last mentioned act, in the same manner as any other public companies, except only as to the taking out of a license from the said commis¬ sioners of stamps. S. 32 . That every quarterly account to be delivered to the said com¬ missioners of stamps or their officers by the corporations or companies, or others insuring against fire, pursuant to the direc¬ tions of the said statute 22 Geo. 3, c. 48, shall contain a true and faithful account of all the policies and insurances which shall have been issued and made, or renewed, or continued by them, whether for a year or for more years than one, or for any period exceeding or falling short of a year, from the first to the last of the quarter (both inclusive) for which such account shall be ren¬ dered : together with the numbers and dates of the policies; the names and places of abode of the persons w r hose property shall be insured; the sum or amount of the sums insured on each policy; the time for which each insurance shall be made, or renewed, or continued, and the duty which shall have been received for the same; and there shall be annexed to and deli¬ vered with every such quarterly account an affidavit, or solemn affirmation in the case of Quakers, made by the secretary, or if no secretary; by the chief clerk of the corporation or company by whom it shall be delivered, stating that he has examined and checked the same with the books of such corporation or com¬ pany, and that to the best of his knowledge, information; and belief, it does contain a true and faithful account of the several matters and things required by this act, and also of any allowance or returns of duty, in respect of time unexpired on policies surrendered, which may be therein stated to have been made pursuant to the said act of 22 Geo. 3, and for any default in the delivery of such account with such affidavit or affirmation APPENDIX NO. II. 223 thereto annexed as aforesaid, the corporation or company, or person or persons making such default, shall forfeit the sum of 500/. S. 33. That any public companies who shall use any other quarter days than those mentioned in the said act 22 Geo. 3, as the period of the commencement or termination of their insurances, shall be at liberty to make up their quarterly accounts to the quarter days used by them, and to deliver the same to the said commissioners of stamps, or their officers, within two calendar months after the expiration of the quarter for which they shall be made up. S. 34, All companies and persons having offices, or carrying on the business of fire insurance at a greater distance than five miles from London and Westminster, shall, if required by the said commissioners of stamps, transmit their quarterly accounts with such affidavits or affirmations as aforesaid thereto annexed, immediately to the said commissioners at their head office, and pay the amount of the duties due on such quarterly accounts immediately to the receiver General of the duties under the management of the said commissioners, and in default thereof shall be subject to the same penalties as they w r ould have been under the said act 22 Geo. 3, for not delivering their accounts and paying the monies due thereon conformable to the provisions of the said act. S. 45. An allowance shall be made to the corporations or companies, and others collecting and receiving the said duties hereby im¬ posed on insurances against loss by fire, and accounting for and paying over the same, as required by this and the said act of 22 Geo. 3, that is to say, to those having their head office in London or Westminster, an allowance at and after the rate of four per cent, on the amount of the duties collected and received at such head office, and at and after the rate of five per cent, on the amount of the duties collected by their agents out of London and Westminster, and to those not having their head office in London or Westminster, an allowance at the rate of five per cent, on the amount of the duties collected by them; pro¬ vided they shall deliver their quarterly accounts containing all the requisite particulars, and make payment of the said duties within the time prescribed by this or the said last mentioned act; S. 3Gi Usual quarter days may be ap¬ plied. Country offices to transmit their accounts. Allowance to offices in respect of duties. APPENDIX NO. III. No. III. Form of Policy of Insurance against Fire by the Corpo- tion of the Royal Exchange Assurance of Houses and Goods from Fire . This present instrument or policy of assurance, witnesseth that whereas A.B. hath agreed to pay into the treasury of the Corporation of the Royal Exchange, London, for the assurance of from loss or damage by fire. Know all Men by these presents, That the capital stock, estate, and securities of the said corporation shall be subject and liable to pay, make good, and satisfy unto the said assured, his heirs, executors, or administrators, any loss or damage which shall or may happen by fire to the said goods and aforesaid, (except such goods as hemp, flax, tallow, pitch, tar, turpentine, glass, china, and earth¬ enware, writings, books of accounts, notes, bills, bonds, tallies, ready money, jewels, pictures, gunpowder, hay, straw, and corn unthrashed,) within the space of twelve calendar months from the day of the date of this instrument or policy of assurance, not exceeding the sum of and shall so continue, remain, and be subject and liable as aforesaid, from year to year, to be computed from the day of in every year, for so long time as the said assured shall well and truly pay or cause to be paid, the sum of into the treasury of the said corporation, on or before the day of which shall be in each succeeding year, and the said corporation shall agree thereto by accepting and receiving the same; which said loss or damage shall be paid in money immediately after the same shall be settled and adjusted; or otherwise if the said loss or damage shall not be adjusted, settled, and paid within sixty days after, notice thereof shall be given to the said corporation by the said assured, that then the said corporation, their officers, workmen, or assigns, shall, at the charge of the said corporation, at the end and expiration of the said sixty days, provide and supply the said assured with the like quantity of goods of the same sort and kind, and of equal value and goodness, with those burnt or damnified by firei Provided always nevertheless and APPENDIX NO. III. it is hereby declared to be the true intent and meaning of this deed or policy that the said stock, estate, and securities of the said Corporation shall not be subject or liable to pay or make good to the assured any loss or damage by fire which shall hap¬ pen by any invasion, foreign enemy, or any military or usurped power whatsoever. Provided also that this deed or policy shall not take place or be binding to the said Corporation until the premium for one year is paid, or in case the said assured shall hereafter make any other assurance upon the goods aforesaid, unless the same shall be allowed of and specified upon the back of this policy. Or if the said A.B. at the time when any such fire shall happen, shall be in the possession of, or let to any per¬ son who shall use or exercise therein the trade of a sugar baker, apothecary, chemist, colourman, distiller, bread or biscuit baker, ship or tallow chandler, stable keeper, inn-holder, or maltster, or shall be made use of for the stowing or keeping of hemp, flax, tallow, pitch, tar, or turpentine; but that in all or any of the said cases these presents and every clause, article, and thing herein contained shall cease, determine, and be utterly void, and of none effect, or otherwise shall remain in full force and virtue. In witness whereof the said Corporation have caused their common seal to be hereunto allixed the day of in the year of the reign of Our Sovereign Lord by the Grace of God, of the United Kingdom of Great Britain and Ireland King, Defender of the Faith, &c. and in the year of our Lord one thousand eight hundred N.B. This Policy to be of no force if assigned, unless such Assignment be allowed by an entry thereof in the Books of the Company. ( 226 ) No. IV. Form of Policy of an Insurance against Fire by the Protector Fire Insurance Company. Whereas ha paid the sum of to the directors of the “ Protector Fire Insurance Company,” and ha also agreed to pay the sum of yearly on the day of during the continuance of this policy, for insuring from loss or damage by fire the property hereby described, not exceeding the sum specified on each article, namely: Now be it hereby known, that we, whose hands and seals are hereunto subscribed and affixed, being three of the said directors, do covenant and agree with the said that from the day of 182 to and inclusive of the whole of the day of 182 and so long as the said insured shall pay, or cause to be paid, the sum of at the time above-men¬ tioned, and the directors for the time being shall accept the same, the stock and funds of the said company shall be subject and liable to pay or mjike good, and shall to the extent only of the said stock or funds pay or make good to the said insured, executors, administrators or assigns, all such loss or damage as shall happen by fire, (except loss or damage by fire happening by any invasion, foreign enemy, civil commotion or riot, or any military or usurped power whatever,) to the property above- mentioned, amounting in the whole to no more than the sum of according to the conditions indorsed on this policy. In witness whereof we have hereunto set our hands and seals this day of in the year of our Lord one thou¬ sand eight hundred and twenty * Signed, sealed, and delivered in the presence of G. FI. Examined, I. K. Entered, L. M. A. B. C. D. E. F. APPENDIX NO. IV. 227 Conditions indorsed on which this Company make Insurances from Loss or Damage by Fire. I. Every person desirous of effecting an insurance must state his name, place of abode, and occupation ; lie must describe the construction of the buildings to be insured, where situate, and in whose occupation; of what materials the same are respectively composed, and whether occupied as dwelling-houses or other¬ wise ; also the nature of the goods, or other property, on which such insurance may be proposed, and the constructions of the buildings containing such property. II. Every insurance attended with particular circumstances of risk, arising from the situation or construction of the premises, or the nature of the trade carried on, or the goods therein, is to be specially mentioned in the order given for the policy, so that the risk may be fairly understood; if not so expressed, or if any misrepresentation be given, so that the insurance be effected upon a lower premium than ought to be paid; or if buildings or goods be described in the policy otherwise than they really are; or if, after an insurance shall have been effected, the risk shall be increased by the erection or alteration of any stove; the car¬ rying on any hazardous trade, operation, or process ; the deposit of any hazardous goods or hazardous communication ; the in¬ sured will not, except under the consent of the directors, and on the terms they may impose, be entitled to any benefit under his policy. III. No insurance proposed to this company is to be considered in force until the premium or duty, or a deposit on account thereof, be actually paid. No receipts are to be taken for any premiums of insurance, or deposits, except such as are printed and issued from the office, and witnessed by one of the clerks or agents of the office. IV. The interest of any deceased person in any policy of this company may be continued to the executor or administrator respectively, or to the person otherwise entitled to the property insured, provided the person so entitled shall procure his or her interest to be indorsed on the policy at the office of the company ; and if goods insured be removed to any other situation than where the same were deposited at the time of effecting the insurance, such removal must be allowed by indorsement on the policy. q 2 APPENDIX NO. IV. 998 /V,v U V. Wh ere loss of rent is intended to be covered by the sura insured, the amount must be specified on the policy. VI. Persons insuring property at this office must give notice of any other insurance made elsewhere on the same property on their behalf, and cause a minute or memorandum of such other insurance to be indorsed on their policies ; in which case this company shall only be liable to the payment of a rateable pro¬ portion of any loss or damage which may be sustained ; and unless such notice be given, the insured will not be entitled to any benefit under this policy. VII. All persons insured by this company, sustaining any loss or damage by fire, are forthwith to give notice to the company at their head office in London, and, as soon as possible, to deliver in as particular an account of their loss or damage as the nature of the case will admit, and make proof of the same by affidavit or affirmation before a justice of the peace, and produce such other evidence as the directors of this company may reasonably require ; and until such affidavit or affirmation, account and evi¬ dence are produced, the amount of such loss, or any part there¬ of, shall not be payable or recoverable; and if there appear fraud in the claim made for such loss, or false swearing or affirm¬ ing in support thereof, the claimant shall forfeit all benefit under such policy, except such as the directors may think fit to allow. VIII. Persons insured by this company, and who may suffer loss, will receive their indemnity without deduction or discount; but in every loss the company will reserve to itself the right of reinstatement within a reasonable time, in preference to the pay¬ ment of claims, if it shall judge that course to be most expedient. IX. It is a principle of the company, that no individual pro¬ prietor is to be in any case liable to contribute to the stock and funds of the company more than his or her unpaid part of the capital of the company; and after a proprietor has transferred any share with the approval of the directors, the transferree, and not the former proprietor, is to be answerable for the unpaid capital on that share. X. If any difference shall arise with respect to the amount of any claim for loss or damage by fire, and no fraud suspected, such difference shall, according to the provisions of the deed of settlement for the purpose, be submitted to arbitrators indiffe* rcntly chosen, whose award shall be conclusive. ( 229 ) No. V. Indorsement of Policy of Insurance against Fire on Removal of Property. The property insured by this policy (or such of the property as is insured) having been removed to the insured’s dwelling-house, brick, timber, and tiled, situate in in the county of the same shall remain insured in such house, and not as here¬ tofore. The same sums-insured, and premiums as before. Entered in the office books this day of No. VI. Transfer of Policy on Conveyance of Interest by Purchase or Gift. I, A. B., do hereby assign all my right and interest in this policy to C. D. of in the county of Witness my hand this day of Signed in the presence of and entered in the office books this day. No. VII. Memorandum to be indorsed on a Policy in case of an Addition. Memorandum. It is hereby declared, that there is a stove erected in one of the sheds adjoining the herein described ; the same is hereby allowed without prejudice to this insurance. Entered day of , ( 230 ) No. VIII. Form of a Pol icy of Insurance upon a Life for the Life of the Insured, hi/ the Society for Equitable Assurances upon Lives, This present instrument or policy of insurance witnesseth, that whereas A. B. of in the county of hath entered into and become a member of the Society for Equitable Assu¬ rances on Lives and Survivorships, according to a certain deed of settlement, bearing date the seventh day of September, which was in the year of our Lord one thousand seven hundred and sixty-two, and inrolled in his Majesty’s Court of King’s Bench at Westminster, and whereas the said society, relying upon the truth of a certain declaration dated this day of made and signed by the said A. B. touching the age, state of health, and other circumstances attending the said A. B. have assured to the said A. B. the sum of pounds, to be paid to his executors, administrators, or assigns, after the decease of the said A. B., whensoever the same shall happen, provided the said assured does not exceed the age of years on this day of and has had the small pox, and is not afflicted with any disorder which tends to the shortening of life, "(as in the said declaration is more fully set forth,) at and under the annual sum or premium of And whereas the said assured hath executed the covenants usually entered into by members of the said society, and hath paid such premium for one whole year, commencing from the date of these presents: now we, whose names are hereunto sub¬ scribed and seals affixed, being two of the trustees of the said society, do for ourselves and our assigns, trustees of the said society, covenant, promise and agree to and with the said assured, and the executors, administrators, and assigns of the said assured, that if the said assured, or the assigns of the said assured, shall yearly and every year, during the term of this assurance, con¬ tinue to pay to the trustees of the said society, or to any two or more of them, the annual sum or premium aforesaid on or before the day of in every year, and shall observe, APPENDIX NO. YIIT. 231 perform, and fulfil and keep all and singular the covenants, arti¬ cles, clauses, provisoes, conditions, and agreements, which on the part and behalf of the said assured are and ought to be observed, performed, fulfilled, and kept, according to the true intent and meaning of the said deed of settlement; we, or our assigns, trus¬ tees of the said society for the time being, will or shall, within six calendar months after satisfactory proof shall have been made of the death of the said assured, well and truly pay, or cause to be paid, out of the stock or fund of the said society, unto the executors, administrators, or assigns of the said assured, the full sum so hereby assured: provided always, and it is hereby declared to be the true intent and meaning of this policy of assurance, and the same is accepted by the said assured upon these express conditions, that in case the said assured shall die upon the seas, or shall go beyond the limits of Europe, unless license be obtained from the court of directors, or shall die by his own hands or by the hands of justice, or if the age of the assured does exceed years ; or if the said assured be now afflicted with any disorder which tends to the shortening of life, or if the above-mentioned declaration contains any untrue averment, this policy shall be void. In witness, &c. ( 232 ) No. IX. Policy of Insurance on the Life of a Third Per non, by the Crown Life Insurance Office . Whereas the person assured by this policy, is desirous and has proposed to effect an assurance with the Crown Life Assurance Company, in the sum of upon the life of for the whole continuance thereof, and has caused to he delivered into the office of the said company a declaration or statement in writing, bearing date the day of signed by whereby it was declared, amongst other things, that the age of the said did not exceed years, that he had had the small pox, that he had had the cow pox, that he had not had the gout, and that he was not affected with fits, convulsions, asthma, insanity, or spitting of blood, or any disorder which tended to the shortening of life, and whereby the said assured agreed that such declaration or statement should be o the basis of the contract between himself and the said company. And whereas the said assured has paid to the directors of the said company the sum of as the premium or considera¬ tion for the assurance of the said sum of until the day of inclusive; and has also paid the further sum of as the full premium or consideration for the assurance of the said sum of for one whole year, commencing the day of and terminating on the day of inclusive, the receipt whereof is hereby acknowledged. Now, therefore, this policy witnesseth, that we three directors of the said company, whose names are hereunto subscribed, do hereby agree, that in case the said shall die at any time previous to the said day of or within the term of one year commencing on the day of and ter¬ minating on the day of both inclusive; or if the said assured, or his assigns, shall in the event of the said APPENDIX NO. IX. 235 living beyond the said term of one year, pay or cause to be paid to the said company during bis life, the like annual premium of on or before the day of in the year and on or before the same day in every subsequent year, the funds and property of the said company applicable by the deed or deeds of settlement of the said company to the payment of monies assured by life policies, shall, according to the provi¬ sions of such deed or deeds, be subject and liable to pay and satisfy to the said assured, his executors, administrators, or assigns, within three calendar months next after proof shall have been given to the satisfaction of the directors of the said com¬ pany, of the death of the said the full sum of of lawful money, together with such further security, if any, as shall have been assigned to or in respect of this policy, pursuant to the rules and regulations for the time being of the said com¬ pany, as or by way of bonus or addition to the sum hereby assured. Provided, nevertheless, that in case any untrue allegation be contained in the declaration or statement so as aforesaid delivered into the office of the said company on behalf of the said assured, or if it should be proved that the referees have knowingly given false testimonials, then this policy of assurance shall be void. Provided, also, that this policy and the assurance hereby effected are and shall be subject and liable to the several conditions, re¬ strictions, and stipulations hereupon indorsed, so far as the same are or shall be applicable, in the same manner as if the same respectively were here repeated and incorporated in the policy. Provided always, nevertheless, that the subscribed capital stock and other the funds and property of the said company, by the deed or deeds of settlement applicable to the payment of monies assured by life policies, shall, subject to all prior claims and demands, alone be liable to answer and make good all claims and demands in respect of this policy, and that no director or other proprietor of the said company, his executors or adminis¬ trators, shall by reason of this or any other policy, or of the whole of the policies taken together, which any director has signed or may sign, be in anywise individually subject or liable to any claims or demands beyond the amount of the unpaid part of his share or shares in the said subscribed capital stock, and that no other person shall on any account whatsoever be in any- 234 APPENDfX NO. IX. wise subject or liable to any claims or demands in respect of tills policy. In witness whereof, we, three of the directors of the said com¬ pany, have hereunto set our hands this day of in the year of our Lord A. B. Examined, G. H. C. D. E. F. Entered, I, K. Conditions indorsed in cases of ordinary Risks. Policies will not be considered to he in force beyond thirty days after the expiration of the year, unless the premium then due shall have been paid to the company, hut should proof he given to the satisfaction of the directors, that the party or par¬ ties whose life or lives hath or have been assured continue in good health, the policies may he revived at any period within six months, on the payment of a fine, to he fixed by the board of directors, not exceeding ten shillings per cent, on the sum as¬ sured ; or at any period within thirteen months, on the payment of such fine as a board of directors may think reasonable. Policies will become void if the parties whose lives have been assured shall go beyond the limits of Europe, or shall die on the high seas, (except in passing from one part of the United King¬ dom of Great Britain to another, and to and from the Islands of Guernsey, Jersey, Alderney, Sark and Man, and also in time of peace in King’s ships, and in steam or other packet or passage vessels to or from British ports, and any foreign ports between the Elbe and Brest, both inclusive,) or being or becoming mili¬ tary or naval men, shall be called into actual service, unless in each case the parties shall avail themselves of the scale of pre¬ miums allotted to the specific risk by the company. Assurances made by persons on their own lives will become void if they die by duelling, by their own hands, or by the hands of justice. But the' directors in their discretion may make such allowance in respect of the policies of the deceased as they may deem just and reasonable. Policies may be assigned by a separate deed, of which forms may be had at the office. ArrENDIX NO. IX. 235 If any person should become desirous of discontinuing an insurance effected at this office for the whole term of life, the company will purchase the interest in such policy at a fair price. All claimants upon the decease of any person whose life shall have been assured by the company, must, if required, make proof thereof, and give such further information respecting the same as the directors may think reasonable. Reasonable proof will also be required of the time of birth, unless that fact shall have been previously established, in wdiicli case the same will be admitted by indorsement on the policy. The time for payment of claims accruing by death is within three calendar months after the proof of the death of the party or parties upon whose life or lives the assurance has been effected. ( 236 ) No. X. Heads of Indenture of Assignment of a Policy of In¬ surance on Life as a Security for a Debt. This Indenture made the day of between A. B. of the one part, and C. D. of the other part, (recites the policy,) and that A. B. had requested C. D. to lend and advance the sum of witnesseth, that in consideration of A. B. hath granted, bargained, sold, assigned, &c. and by these presents doth, &c. all that instrument or policy of in¬ surance, &c. and all sum or sums of money due, owing, or reco¬ verable by virtue of the said policy, and the full benefit and advantage of the same, and of all profits or bonuses, &c. to have, hold, &c. unto the said C. D. &c. Provided, that if the said A. B. pay, &c. unto the said C. D. on or before the day hereinafter mentioned, the said sum of and all and every sum which shall be then due and owing, together with interest for the same, without deduction, then the said C. D. &c. will at the request of the said A. B. re¬ assign the said policy free from incumbrances. Provided, that if default be made in payment of sucli sum of for the space of next after the day for payment of the same, it shall be lawful for C. D. without consent of A. B. to sell the said policy by public auction or private contract unto any person, &c. who shall be willing to become the purchaser, &c. thereof, for the best price, &c. and on payment to assign the said policy as sucli purchaser, &c. shall direct or appoint, and to make effectual receipts for the same, and to exonerate the purchaser, &c. from liability to inquire into the necessity of the sale, and from all responsibility as to the application of the produce, and out of the monies, &c. to satisfy any premiums paid by C. D. &c. for the purpose of keeping on foot the said policy, and all costs, &c. relating to the recovery of the money due or to become due on the said policy, or the said sum of and to apply the residue towards payment of the said and of all other sums which may be due and sum of APPENDIX NO. X. 237 owing at the time of such sale, and interest thereof, and in case of a surplus to pay the same to A. B. A. B. constitutes C. D. his attorney, and to give receipts or prosecute actions or suits for recovering payment, and ratifies all acts of C. D. Covenant by A. B. to pay the said sum of on or before together with interest and all costs. That A. B. hath done no act to incumber or vacate said policy, hath power to assign, will not revoke any power or authority, covenant for further assurance of the said policy, and that A. B. will during the continuance of this security pay said premiums payable in respect of such policy, and within thirty days after the same become due will produce to C. D. receipts for the same, and will truly observe the terms and conditions of the said policy. If A. B. shall refuse or neglect to pay the premiums in respect of the said policy, or to do any thing necessary for keeping on foot the same, it shall be lawful for C. D. &c. to pay said pre¬ miums, and such other sums, &c. and such premiums and sums shall stand charged upon the said policy, and may be retained out of the monies to be recovered thereon. That A. B. will not depart out of England without giving a month’s notice to C. D. of A. B.’s intention, in order that C. D. may be enabled to make known the same at the office of the said society, and pay additional premium if necessary. That A. B. during the continuance of such security will not go beyond the limits of Europe without the consent of C. D. or permit or do any thing whereby such policy may be avoided. That A. B. will not without consent of C. D. or the order, judgment, or decree of some Court of Law or Equity, release or discharge any part of the said sums. IX *°N ( 238 ) o •> co O • fsi o L+ fl 12 03 *co S3 O 03 Oh & O h£3 f-i ctf a> cJ O O r—< H •> t/3 ’Tj C >-> 0> CD *f c ° O a ctf « a' • rH S-» O a S-4 CL> £ OiO^ 2H o «>_r b 4= 'P o c o 2 ° § o jj Sc o o ce . OPQ o a> PQ cs W a> bo S-i c* ^3 a a> ps S-I *2 t« - S a .£ o —< w . • S o Ph ,a> § T3 tf 2 - H 3 2 W) o ” 0) c «? si u * V Ph s S a> a m ^ £ *-5 PQ < (-< o 3 £3 3 <1 CD g 03 in o’ a> «<- -a . o • ° . S „’S ?3 «o .3* 1 d 3 £Ph _ h - O O cl -O a> a § "6 'C i | £ 2 *S > £ ^ « a ^cl, pi o '« 2 « OJ *“ £»►> S3 u CD vS bo a • H M 3 CD * «3 ^ f—( tJ « cS -5 Pi O CD C d> O *-> • Q • o . K. and tornies of of King’s <4-t O S- ■5 o O >-» HH < 2 . tO OJ £ C+M • ° Q ti PQ O .Or! ■ r -\ '■G 5! U o . c=i h 03 S5 w da <5 PQ * 2 ^ w ^i-5pq •**1 0 ■*-> r c3 S3 CD PH cd ja c 3 q o Sc too H- .2, g 4- o a & 2 o w 1/3 £ +-> m ~4 2^ g s-. G nC >-. 2 8-5 Jz; a hH oq CO • • -*-4 r—H rj CC • o 2 r-H CD a> 4> 3 ^ P «s *3 fclo 3 "c3 "T3 ci O CO W S3 »-H a> S <1> H o d ci m CO ( 239 ) No. XII. Bond from A. B. to C, I), for securing an Annuity for the Life of A. B.; also to be secured by a Warrant of Attorney and Deed of Grant. Know all men by these presents, That I A. B. (the obligor) of &c. am held and firmly bound to C. I) (the obligee) of &c. in the sum of <£1 GOO of good and lawful money of Great Britain, to be paid to the said C. D. or his cer¬ tain attorney, executors, administrators, or assigns; for which payment to be well and faithfully made I bind myself, my heirs, executors, and administrators, and every of them, firmly by these presents sealed with my seal. Dated this, &c. Whereas the above-bounden A. B. hath agreed with the above- named C. D. for the sale to him the said C. D. of one annuity or yearly sum of £100, to be paid to the said C. D. his execu-' tors, administrators, or assigns, during the life of the said A. B. and to be secured as well by the Bond of the said A. B. as also by a Deed of Grant and Warrant of Attorney, at or for the price or sum of £800; and upon the treaty for the said sale it was agreed by the said A. B. and C. D. that the costs and expenses of preparing and perfecting the said several securities for the said annuity, and for enrolling a memorial thereof, should be paid and borne by the said A. B. And whereas the said C. D. hath on the day of the date of the above-written bond or obliga¬ tion, with his own proper hands, duly paid the sum of £800 in good and valid notes of the Governor and Company of the Bank of England, commonly called Bank Notes, and expressed to be payable respectively to the bearer thereof on demand, unto the said A. B. in full for the purchase of the said annuity or yearly sum of <£100, which he the said A. B. doth hereby admit and acknowledge. Now the Condition of the above-written bond or obligation is such, that if the said A. B. his, heirs, executors, 240 AFPENDIX NO XII. or administrators, or some or one of them, do and shall well and truly pay or cause to be paid unto the said C. D. his executors, administrators, or assigns, during the natural life of him the said A. B. one .annuity or yearly sum of ,£100 of lawful money cur¬ rent in Great Britain, by four even and equal quarterly pay¬ ments on the day of the day of the day of and the day of in every year, without any deduction or abatement whatsoever, and do and shall make the first payment of the said annuity or yearly sum of ,£100 on the day of next ensuing the day of the date of the above-written bond or obligation, if he the said A. B, shall then be living; and if the said A. B. shall depart this life before the said day of next, or shall survive the same day of and shall after¬ wards depart this life on any other day than any one of the said quarterly days of payment, then do and shall pay a proportionate part of the said annuity or yearly sum of £100 to the said C. D. his executors, administrators, or assigns, immediately after the decease of the said A. B. for the time which he the said A. B. shall have lived of the said current quarter of a year. Then the above-written bond or obligation to be void and of no effect, or else to be and remain in full force and virtue. Signed, sealed, &c. ( 241 ) No. XIII. Grant of an Annuity secured upon Freehold Property during the Life of the Grantor. This Indenture made, &c. between A. B. (the grantor) of, &c. of the first part, C. D. (the grantee) of, &c. of the second part, and J. R. the trustee of, &c. of the third part. Whereas under or by virtue of certain indentures of lease and release bearing date respectively on or about the and days of 1806, the release being made or expressed to be made between, &c. being the settlement executed previously to the marriage then intended to be and shortly afterwards duly solemnized between the said A. B. and Harriet D. afterwards called H. B. his wife, (and since dead,) the messuages, &c. hereinafter particularly mentioned, with their appurtenances, were conveyed and limited after the determination of certain uses and estates in the said indenture of release mentioned, which have all since determined, or become incapable of taking effect, to the use of the said A. B. and his assigns, during the term of his natural life, with divers remainders over. And Recitals. whereas the said A. B. hath contracted and agreed with the said C. D. for the absolute sale to him the said C. D. of one annuity or clear yearly sum of £100, to be paid to the said C. D. his executors, administrators, or assigns, during the life of the said A. B. and to be secured in manner hereinafter men¬ tioned, at or for the price or sum of £800, and upon the treaty for the said sale it was agreed, that the costs of preparing and perfecting the securities for the said annuity, and for enrolling a memorial thereof, should be borne and paid by the said A. B. And whereas in pursuance and performance of the said agree¬ ment on the part of the said C. D. he the said C. D. hath this day with his own proper hands duly paid the said sum of £'800 in good and valid notes of the Governor and Company of the Bank of England, commonly called Bank Notes, and expressed to be payable respectively to the bearer thereof on demand, unto the said A. B. And whereas in pursuance and part perform- R 242 APPENDIX NO. XIII. Consideration. Grant of an¬ nuity. To have, hold, &c. ance of the said agreement on the part of the said A. B. it is intended that the said A. B. shall immediately after the sealing and delivery of these presents, execute a certain bond or obliga¬ tion in writing in the penal sum of £1600 already prepared and engrossed, and bearing or intended to bear even date with these presents, with a condition thereunder written for making void the same on payment of the said annuity or clear yearly sum of £100, as therein and hereinafter mentioned, and shall likewise execute a certain warrant of attorney, already prepared and en¬ grossed, and bearing or intended to bear even date with these presents, thereby authorizing certain attornies of his Majesty’s Court of King’s Bench at Westminster to confess judgment against him the said A. B. in an action of debt on the said bond for the sum of £1600, besides costs of suit; and it is intended that judgment shall and may be forthwith entered up thereupon accordingly. Now this Indenture witnesseth, that in pursuance and further performance of the said recited agreement, and for and in consideration of the sum of <£800 of lawful money of Great Britain, that is to say in Bank Notes as aforesaid, to the said A. B. in hand well and truly paid by the said C. D. at or immediately before the sealing and delivery of these presents, the receipt of which said sum of £800, and that the same is in full for the purchase of the said annuity, he the said A. B. doth hereby admit and acknowledge, and of and from the same and every part thereof doth hereby acquit, release, exonerate, and discharge the said C. D. his executors, administrators, and as¬ signs, and every of them for ever, he the said A. B. hath given, granted, bargained, sold, and confirmed, and by these presents doth give, grant, bargain, sell, and confirm unto the said C. D. his executors, administrators, and assigns, one annuity or clear yearly rent or sum of <£100 of lawful money of Great Britain, to be charged and chargeable upon and issuing and payable out of all that, (a) &c. and out of and upon their and every of their appurtenances, to have, hold, receive, and take the said annuity, or yearly rent, or sum of £100, unto and by the said C. D. his executors, administrators, and assigns, henceforth for and during the term of the natural life of the said A. B. to be computed from the day next before the day of the date of these presents, the said annuity to be paid and payable by four even and equal quarterly payments, on the day of the day of («) The premises to be described. APPENDIX NO. XIII. 243 the day of and the day of in every year, without any deduction or abatement out of the same, or any part thereof, for or on account of any present or future taxes, charges, rates, assessments, or impositions, or any other matter, cause, or thing whatsoever. The first payment of the said annuity, or yearly rent, or sum of <£100, to be made on the day of next ensuing the day of the date of these presents, if the said A. B. shall then be living; and if the said A. B. shall depart this life before the said day of or shall survive the same day of and shall after¬ wards depart this life on any other day than any one of the said quarterly days of payment, then a proportionate part of the said annuity, or yearly rent, or sum of £100, to be paid to the said C. D. his executors, administrators, or assigns, immediately after the decease of the said A. B. for the time which he the said A. B. shall have lived of the then current quarter of a year. And the said A. B. for himself, his heirs, executors, and administra¬ tors, doth covenant, grant, and agree with and to the said C. D. his executors, administrators, and assigns, by these presents in manner following, (that is to say) that if the said annuity or yearly rent, or sum of £100, or any part thereof, shall be in arrear and unpaid by the space of twenty-one days next after any of the said days or times whereon the same ought to be paid as aforesaid, then and in such case as often as the same shall happen it shall and may be lawful for the said C. D. his executors, administrators, or assigns, to enter into and upon all or any of the said messuages, &c. hereinbefore charged with the said an¬ nuity, or yearly rent, or sum of £100, and to distrain for the said annuity, or yearly rent, or sum of £100, and for all arrears thereof, and to sell and dispose of the distress and distresses then and there taken, or otherwise to demean therein, according to law, in like manner as in the case of distress taken for rent reserved by lease or common demise, to the end and the intent that he the said C. D. his executors, administrators, or assigns, may be fully paid and satisfied the said annuity, or yearly rent, or sum of £100, and all arrears of the same, and all costs, charges, and expenses occasioned by the nonpayment of the same. And also that in case the said annuity, or yearly rent, or sum of £100, or any part thereof, shall at any time or times hereafter be in arrear and unpaid by the space of thirty-one days next after any of the said days or times on which the same ought r 2 Power of dis¬ tress, (See. 244 APPENDIX NO. XIII. Power of entry. Covenant by grantor to pay annuity. Good right to grant. That the pre¬ mises shall be charged. to be paid as aforesaid, then and in such case and from time to time as often as the same shall happen it shall and may be law¬ ful (although no legal demand shall have been made thereof,) for the said C. D. his executors, administrators, or assigns to enter into or upon and to hold and enjoy all and singular the said messuages, &c. hereinbefore charged with the payment of the said annuity, or yearly rent, or sum of £100, or any part thereof, and to receive and take the rents, issues, and profits thereof to and for his and their own use and benefit until he or they shall therewith and thereby or otherwise be fully paid and satisfied all the arrears of the said annuity, or yearly rent, or sum of <£100, due at the time of such entry, and which shall afterwards accrue and become due and payable during his and their being in possession of the same premises, together with all such costs, charges, damages, and expenses whatsoever, which he or they shall sustain or be put unto by reason of the nonpay¬ ment thereof, and such possession when taken to be without impeachment of waste. And the said A. B. for himself, his heirs, executors, and administrators, doth covenant, promise, and agree to and with the said C. D. his executors, administra¬ tors, or assigns, by these presents in manner following, that is to say, that he the said A. B. his heirs, executors, or administra¬ tors, or some or one of them, shall and will well and truly pay or cause to be paid unto the said C. D. his executors, adminis¬ trators, or assigns, for and during the natural life of him the said A. B. the said annuity, or yearly rent, or sum of £100, and also such proportionate part thereof as aforesaid as when the same respectively shall become due and payable as aforesaid, without any deduction or abatement whatsoever, and according to the true intent and meaning of these presents. And that the said A. B. now hath in himself good right, full power, and lawful and absolute authority to grant and confirm the said annuity, or yearly rent, or sum of £100, and to charge the same upon all and singular the said messuages, &c. hereinbefore mentioned in manner aforesaid, and according to the true intent and meaning of these presents. And that all and singular the same mes¬ suages, &c. shall during the natural life of the said A. B. and also during such time thereafter as any arrears of the said an¬ nuity, or yearly rent, or sum of ,£100, or any costs or expenses incurred in respect thereof shall remain unpaid, continue and be charged and chargeable with and subject and liable to the dis- APPENDIX NO. XIII. 245 tress and distresses entry and entries of the said C. D. his exe¬ cutors, administrators, or assigns, or other the powers and remedies herein contained for the recovery of the same. And that free and clear, and freely and clearly, and absolutely ac¬ quitted, exonerated, and discharged, or otherwise by the said A. B. his heirs, executors, or administrators, well and sufficiently saved, defended, kept harmless, and indemnified of, from, and against all and all manner of former and other grants, charges, and incumbrances whatsoever. And further, that he the said Free from in- A. B. and all and every persons and person whomsoever having cum t> rances - or claiming, or who shall or may at any time or times hereafter have or claim any estate, right, title, or interest, legal or equita¬ ble, in, to, or out of the said messuages, &c. hereinbefore charged with the payment of the said annuity, or yearly rent, or sum of ,£100, shall and will at any time or times hereafter, upon every reasonable request of the said C. D. his executors, admi¬ nistrators, or assigns, but at the proper costs and charges of the said A. B. make, do, and execute, or cause or procure to be For further made, done, and executed all and every such further and other assurance * lawful and reasonable acts, deeds, assurances, matters, and things whatsoever, for the further, better, more perfectly, and abso¬ lutely charging the said messuages, &c. with the said annuity or yearly rent, or sum of £100, and such powers and remedies for recovering and enforcing payment thereof as aforesaid as by the said C. D. his executors, administrators, or assigns, or his or their counsel in the law shall be reasonably advised and required. ( a ) And this indenture also witnesseth, that in pursuance and fur¬ ther performance of the said recited agreement on the part of the said A. B., and in consideration of the said sum of £800 to him paid by the said C. D. as hereinbefore is mentioned, and for the more effectually securing the payment of the said annuity, or yearly rent, or sum of £100 to the said C. D., his executors, administrators, and assigns, and in consideration of 10s. of lawful money aforesaid to the said A. B. well and truly paid by the said J. R. at or immediately before the sealing or delivery of these presents, the receipt whereof is hereby acknowledged, he, the said A. B., upon the nomination and appointment of the said C. D. (testified by his signing and sealing these presents) hath granted, bargained, sold and demised, and by these presents doth (a) If the premises consist of buildings, a covenant to insure against fire will be properly inserted here. 246 APPENDIX NO. XIII. Demise of pre¬ mises for a term of years. Upon trust that A. B. may re¬ ceive the rents until default, and upon de¬ fault to raise the money. grant, bargain, sell and demise unto the said J. R., bis executors, administrators, and assigns, the messuage, &c. and all and sin¬ gular other the premises hereinbefore charged with the payment of the said annuity, or yearly rent, or sum of £100, or expressed and intended so to be, with their appurtenances; And all the estate, &c. To have and to hold the said messuages, &c. and all and singular other the premises hereinbefore described, with their appurtenances, (subject to and chargeable with the said annuity, or yearly rent, or sum of <£100, and the powers and remedies hereinbefore given for securing the payment thereof,) unto the said J. R., his executors, administrators, and assigns, for and during the term of 500 years, to be computed from the day next before the date of these presents, and thenceforth next ensuing and fully to be complete and ended, (if the said A. B. shall so long live,) without impeachment of waste, Upon the trusts nevertheless, and to and for the intents and purposes here¬ inafter expressed or declared of or concerning the same, that is to say, Upon trust that he, the said J. R., his executors, admi¬ nistrators, or assigns, do and shall permit and suffer the said A. B. and his assigns to receive and take the rents, issues, and profits of the said messuages, &c. hereinbefore demised, or intended so to be, until the said annuity, or yearly rent, or sum of £100, or some part thereof, shall happen to be in arrear and unpaid by the space of forty days next after any of the said days or times whereon the same ought to be paid as aforesaid; And when and as often as the said annuity, or yearly rent, or sum of £100, or any part thereof, shall be in arrear and unpaid by the space of forty days next after the same shall become due and payable, do and shall, by and out of the rents and profits of the said messuages, &c. hereinbefore demised, or intended so to be, or by demising, leasing, mortgaging, or selling or disposing of the same premises respectively, or any part thereof, for all or any part of the said term of 5 00 years, or by bringing any action or suit against the tenants or occupiers of the said premises for the recovering of the rents, issues, and profits thereof, or by all or any of the ways or means aforesaid, or by such other ways or means as to him or them shall seem meet, levy and raise such sum or sums of money as will be sufficient, or as he or they shall think expedient to raise, for paying and satisfying unto the said C. D., his executors, administrators, or assigns, the said annuity, or yearly rent, or sum of £100, or such part thereof as shall be APPENDIX NO. XIII. 247 in arrear and unpaid, and all costs, charges, and expenses what¬ soever, which they the said C. D. and J. R., or either of them, their or either of their executors, administrators, or assigns, shall or may sustain or be put unto by reason of the non-payment of the said annuity, or yearly rent, or sum of ,£100, or of any part thereof, or otherwise in the execution of the trusts of the said term of 500 years, and do and shall pay and apply the money so to he levied and raised, or a competent part thereof, in or towards the satisfaction of the said annuity, or yearly rent, or sum of £100, or so much thereof as shall be in arrear and unpaid as aforesaid, and of all costs, charges, and expenses accordingly, and do and shall pay the residue and surplus (if any) of the said money unto the said A. B., his executors, administrators, or assigns, for his or their own use and benefit; And the said A. B. for himself, his heirs, executors, and administrators, doth cove¬ nant, promise, and agree to and with the said J. R., his execu¬ tors, administrators, and assigns, by these presents in manner following, that is to say, that he the said A. B. now hath in him¬ self good right, full power, and absolute authority to bargain, sell, and demise the said premises, &c. hereinbefore demised, or intended so to be, unto the said J. R., his executors, administra¬ tors, or assigns, for and during the said term of 500 years, (de¬ terminable as aforesaid,) upon the trusts and in the manner afore¬ said, according to the true intent and meaning of these presents ; And that from and after default shall be made in payment of the said annuity, or yearly rent, or sum of £100, or any part there¬ of, contrary to the true intent and meaning of these presents, he the said J. R., his executors, administrators, or assigns, shall and lawfully may peaceably and quietly enter into and upon, and hold, occupy, and enjoy all and singular the said messuages, &c. hereinbefore demised, or intended so to be, and receive and take the rents, issues, and profits thereof, upon the trusts and in man¬ ner aforesaid, and according to the true intent and meaning of these presents, without any hinderance, interruption, or disturb¬ ance whatsoever, of or by the said A. B., or any other person or persons whomsoever, and that free and clear, and freely, clearly, and absolutely acquitted, exonerated, and discharged, or other¬ wise, by him the said A. B., his heirs, executors, or administra¬ tors, well and sufficiently protected and kept indemnified of, from, and against all, and all manner of adverse estates, titles, troubles, charges, liens, and incumbrances whatsoever ; and fur- Covenant by grantor that he has good light to demise. Quiet enjoy¬ ment upon de¬ fault. Free from in¬ cumbrances. 248 APPENDIX NO. XIII. Covenant for further as¬ surance. That the grantor will appear at a life assurance office. ther, that he the said A. B., and all and every persons and per¬ son whomsoever having or claiming, or who shall or may have or claim any estate, right, title, or interest in, to, or out of the said messuages, &c. hereinbefore demised, or intended so to be, shall and will at any time or times hereafter, upon every reason¬ able request of the said C. D., his executors, administrators, or assigns, but at the proper costs and charges of the said A. B., make, do, and execute, or cause or procure to be made, done, and executed, all and every such further, and other lawful and reasonable acts, deeds, assurances, matters and things whatsoever, for the more effectually bargaining, selling, demising and assuring the said messuages, &c. hereinbefore demised, or intended so to be, unto the said J. R., his executors, administrators, and assigns, for the residue and remainder which shall be then to come and unexpired of the said term of 500 years, (determinable as afore¬ said,) in manner aforesaid, and according to the true intent and meaning of these presents, as by the said C. D., his executors, administrators, or assigns, or the said J. R., his executors, admi¬ nistrators, or assigns, or their or either of their counsel in the law, shall be reasonably advised or required ; And moreover, that he the said A. B. shall and will at any time or times hereafter, (when thereunto requested by the said C. D., his executors, administrators, or assigns, and as often as there shall be occasion,) appear in person at some life insurance office or offices in the cities of London or Westminster, or before any agent or agents of such office or offices, and also procure and exhibit, or send or cause to be sent to such office or offices, or agent or agents, proper and satisfactory certificates, or other vouchers, of the birth, age, and state of health of him the said A. B., in order that the said C. D., his executors, administrators, or assigns, may insure any sums or sum of money upon the life of him the said A. B., and in case any such assurance shall be effected, and the said A. B. shall at any time thereafter change his usual place of abode, then that he the said A. B. shall forthwith give notice thereof to the said C. D., his executors, administrators, or assigns, specifying the place to which he shall so remove, and shall and will do, or cause to be done, all such other acts, matters, and things as shall be expedient and requisite for effecting and keep¬ ing on foot any such assurance or assurances as aforesaid ; And if it shall happen that the said A. B. shall leave England, (except to Ireland,) by reason whereof any extra premium shall become APPENDIX NO. XIII. 249 payable on such assurance or assurances, then that he the said A. B. shall and will, as often as the same shall happen, pay unto the said C. D., his executors, administrators, or assigns, all such sum or sums of money as shall become due or payable for such extra premium, when and as often as the same shall become due. And this indenture further witnesseth, and it is hereby agreed and declared between and by the said parties to these presents, that the judgment so to be entered up against the said A. B. as aforesaid, is intended to be a further security to the said C. D., his executors, administrators, and assigns, for the said annuity, or yearly rent, or sum of £100, and that no execution or execu¬ tions shall be issued or taken out upon the said judgment until the said annuity, or yearly rent, or sum of £100, or some part thereof, shall be in arrear by the space of forty days next after the same shall become due and payable ; and that as often as the said annuity, or yearly rent, or sum of £100, or any part thereof, shall be in arrear and unpaid by the space of forty days next after any of the said days or times whereon the same ought to be paid as aforesaid, then and in such case, and as often as the same shall happen, it shall be lawful for the said C. D., his exe¬ cutors, administrators, or assigns, to sue out any execution or executions upon or by virtue of the said judgment, as he or they shall think fit, for the recovery of any arrears of the said annuity, or yearly rent, or sum of £100, and all costs, charges, and ex¬ penses (if any) which he the said C. D., his executors, adminis¬ trators, or assigns, or any of them, shall sustain or be put unto, for or by reason of the nonpayment thereof, or of any extra pre¬ mium of assurance as aforesaid; And it is hereby agreed and declared that the said C. D., his executors, administrators, and assigns, shall by and with and out of the money to be raised by the means lastly aforesaid, pay, satisfy, and discharge the said annuity, or yearly rent, or sum of £100, and all arrears thereof, and all costs, charges, and expenses (if any) to be occasioned by the nonpayment thereof, and also any extra premium of assurance as aforesaid, and shall pay the surplus (if any) of the money so to be raised unto the said A. B., his executors, administrators, or assigns, for his and their own use and benefit; And it is hereby further agreed and declared between and by the said parties to these presents, that it shall not be necessary for the said C. D., his executors, administrators, or assigns, to revive, or cause to be revived, the said judgment, or do any other act or thing to The grantor covenants to pay the extra premium in case he goes abroad. Execution not to be taken out upon judgment until default. Not necessary to revive judg¬ ment or sue out scire facias. 250 APPENDIX NO. XIII. J Grantee to acknowledge satisfaction upon the deatli of the grantor and payment of arrears. Proviso for re¬ demption of annuity. keep the same on foot, notwithstanding the same judgment shall have been entered of record for the space of one year and up¬ wards, nor shall it be necessary for him or them to sue out any writ of scire facias to assess damages, and that the said A. B., his executors or administrators, shall not, nor will take or attempt to take any advantage of the want of reviving or keeping the said judgment on foot, nor of the want of issuing out any scire facias as aforesaid, and that if he or they attempt so to do, by any action or legal proceedings whatsoever, this present agree¬ ment shall and may be pleaded and shown in bar thereto, any rule or practice of the Courts, or any of them, to the contrary thereof notwithstanding: Provided always, and it is hereby fur¬ ther agreed and declared between and by the said parties to these presents, that after the decease of the said A. B., and full pay¬ ment to the said C. D., his executors, administrators, or assigns, of the said annuity, or yearly rent, or sum of £100, and all arrears thereof, up to the day of the decease of the said A. B., and all costs, charges, and expenses as aforesaid, the said C. D., his executors, administrators, or assigns, shall and will, at the request, costs and charges of the heirs, executors, or administra¬ tors of the said A. B., acknowledge satisfaction upon the judg¬ ment, or the record thereof, in due form of law, or do any other act or thing that may be required for vacating and discharging the said judgment. And this indenture moreover witnesseth, and the said C. D. doth for himself, his heirs, executors, admi¬ nistrators, and assigns, covenant, promise, and agree, to and with the said A. B., his executors, administrators, and assigns, by these presents, that in case the said A. B. shall at any time be minded or desirous of repurchasing the said annuity, or yearly rent, or sum of <£100, and of such his intention shall give six calendar months’ previous notice in writing to the said C, D., his executors, administrators, or assigns, or leave the same at his or their usual place of abode, or in lieu of such notice, shall pay or tender to him or them one half year’s payment of the said annuity; Then that he the said C. D., his executors, administra¬ tors, or assigns, shall and will at any time after the expiration of the said six calendar months’ notice to be given as aforesaid, or at the time of such payment or tender in lieu thereof as afore¬ said, and on receiving of and from the said A. B., or his assigns, all and every sum and sums of money whatsoever which shall be then due for or on account of the arrears of the said annuity, or APPENDIX NO. XIII. 25 1 yearly rent, or sum of £100, and a proportionate part thereof, up to the day of repurchasing the same, and the sums of money which shall be then due on account of any costs, charges, and expenses occasioned by the nonpayment thereof, or for any extra premium of assurance as aforesaid, accept and take the sum of £800 of lawful money current in Great Britain, in full for the repurchase of the said annuity or yearly sum of £100, and the said C. D., his executors, administrators, or assigns, and the said J. R., his executors, administrators, or assigns, shall and will thereupon, at the request and at the costs and charges of the said A. B., release, assign, or otherwise dispose of the said annuity, or yearly rent, or sum of <£100, and the said messuages, &c. hereinbefore demised, or intended so to be, and all other securi ¬ ties for the same, unto the said A. B., or such other person or persons as he shall in that behalf nominate and appoint, and acknowledge, or cause to be acknowledged, satisfaction of the said judgment, and do every other act and thing necessary or advisable for the releasing, assigning, vacating and discharging the said annuity, or yearly rent, or sum of £100, and the securi¬ ties given for securing the same as aforesaid, as by the said A. B., his executors, administrators, or assigns, or his or their counsel in the law shall be reasonably advised and required. In witness, &c. INDEX. Accumulations on Life Policies, 140. Action, fire, 88. life, 164. See Proceedings, 88, 164. Age and Health, Life Insurance, 105. Agents of Offices, Fire, 78. general authority, ib. privity between the Crown and agents as to recovery of duties by extent, ib. of the insured answerable for negligence though not remunerated, 79. of Life Insurance Offices, 160. where a party insures anothers life, the latter taken to be the agent of the former, so as to bind him by his representations, 119. in Annuity transactions, 186. Annuities, 173. nature of, 174. if bona fide, not subject to the Usury laws, ib. not in general liable to be set aside for mere inadequacy of price, 175. setting value in bankruptcy, 177. clause of redemption not usurious, ib. modes of securing, 179. insurance to secure, 171. real security, ib. personal security, 180. notice to trustees, ib. for life of grantor or nominees, ib. pay or half-pay not assignable as a security, 181. benefices in the church not assignable, 182. void if upon immoral consideration or against public policy, 183. bankruptcy of grantor and proof under the commission, 183. 254 INDEX. Annuities — (continued.) proof where the annuity is defective under the statutes, 183. bankruptcy of agents, 186. where the grantor bankrupt has secured the annuity on real estate, 186. surety of grantor in bankruptcy, ib. surety of annuity in general, 188. rights as between surety and agent, ib. rights as between surety and co-surety, ib. stamp duties on annuities, 189. memorial under stat. 17 Geo. III. c. 26, 194. under stat. 53 Geo. III. c. 26, 197. the consideration, 195, 198, 206. retaining consideration, 208. enrolment, 195, 198, 204. contracts with persons under age, 196, 201. brokerage, 196, 201. description of companies, 198. exceptions of the acts, 197, 201, 209. names of persons beneficially interested, 198. proceedings to set aside annuities under the acts, 197, 200. only the particular deed not enrolled void, 204. witnesses, 194, 198, 205. description of, 205, 206. Christian names not necessarily to be set out at length, 206. no memorial necessary in certain cases, 209, 210. Annuity Deed, Appendix, 241. Arbitration, 89. Assignment of policy, fire, 69. after the fire with possession of the property insured before the fire and without consent of the office, 70, 73. policies are special agreements with the insured, 72. of policies on life or lives, 143. if valid at the time of execution good, ib. notice of assignment necessary to take policy out of the order and disposition of assignor, in case of his bankruptcy, 144, 148, 152. second assignee, without notice of previous assignment, first giving notice to the office preferred, 154. the rule of Williams v. Thorpe and Ex parte Colvill applicable to insolvency, ib. heads of indenture of, by way of security for a debt, Appendix, 236. Attendant, usual Medical, reference to, on Life Assurance, 119* INDEX. 255 Average Clause, Fire Insurance, 16. form of, Appendix, 221. Bankruptcy, of grantor of annuity, 183. of assignor of policy, 144. See Assignment. Barn, description of a building as, though not strictly such, does not invalidate fire policy, 59. Benefices in the Church not assignable, 182. Bond for securing an annuity, Appendix, 239. Bonuses on policies of insurance, Life, 140. Breach of warranty, Fire, 27. Life, 105, 106, 107, 108, 109, 110. Brokerage, 196, 201. Burning, wilful, the law as to, 67, 68. Certificate, production of, Fire Insurance, 62. Civil Commotion, Fire, 42. Coffee-house, not an inn within the meaning of a policy as doubly hazardous, 60. Commencement and duration of risk, Fire, 49. in Life Insurance, 129* Companies, description of, Annuities, 198. Concealment, of material facts, Fire, 38, 39* in Life Insurance, 114, 115. birth of a child by single woman, 116. certificate by medical man, another having lately attended, 117. residence of a party in a particular town, fact concealed that she was confined in the gaol there, 119. reference to the usual medical attendant must be given, 119. party insuring another’s life bound by his misrepresentations, ib. the latter is the agent of the former, ib. party insuring another’s life bound by the latter’s concealments, 121. 256 INDEX. Conditions, in policy against fire, 12. in policy upon life, 102. Confirmation of invalid contract by tender of increased premium, 38. \ Consideration in annuity transactions, 195, 198, 206. Construction of Policy, 130. See Policy. Contracts with persons under age, Annuities, 196, 201. Co-surety of annuity, 188. Creditor insuring debtor’s life, 166. Damage. See Policy—Insurance. Death by the hands of justice, effect of, Life Insurance, 102. Debt, insuring as a security for, 124. Declaration, 90, 91, 100, 105. And see Proceedings. Deed not enrolled void, Annuities, 204. See Appendix, 238. Description of property, Fire Insurance, 12. of companies, Annuities, 198. of witnesses, Annuities, 205. I Deviations, slight, in Fire Insurance, 59. Devisee, whether entitled to insurance money, 86, See Equities. Disorders tending to shorten life, 110. Double hazardous insurance, Fire, 11. Duration of policy, fire, 49. life, 129. Duties on fire insurance, 17. statute relating to, Appendix, 221. life, 102. annuities, 189. Endowments and provisions for families, 164. 1NDE X. 257 Equities, attaching upon policies, Fire, 81. no equity in general as between landlord and tenant, ib. nor as between heir and personal representatives, 84. under special circumstances insurance money payable to heir or devisee, 86. on life policies in general no equity in favour of third persons, 155. may attach in cases of trust, 157. Evidence. See Policy—Insurance—Proceedings. Exceptions in the Annuity Acts, 197, 201, 209. Expenses of removing goods in case of lire, 17. Extent for duties, 78. Extraordinary risk, Fire, 11. False Swearing, Fire, 14. Fifteen days allowed for payment of premium, Fire, 49. Fire Insurance, 1. See Policy of Insurance against Fire-Insurance. Form of Policy. See Policy. Forms, of average clause, Fire Insurance, Appendix, 221. of statute as to the collection and payment of duties, Fire, ib. of fire policy, Royal Exchange, Appendix, 224. Protector, Appendix, 226. of indorsements on policies on removal of property, Appendix, 229. of transfer of policy, ib. of indorsement in case of alteration or addition, ib. of policy on life, Equitable, Appendix, 230. Crown, Appendix, 232. of indenture of assignment of life policy for securing a debt, Appen¬ dix, 236. of memorial of annuity, Appendix, 238. of bond for securing an annuity, Appendix, 239. of grant of annuity secured on real estate, 241. Fraud, 14. See Policy—Insurance—Proceedings. s 258 INDEX. Fraudulent Losses, 66. Grantor of Annuity insuring his life, 127. See Annuity. Health of Party to be insured, 105, 106, 109, 110. Heat, damage by, 25. Hundred, right of fire offices against, in certain cases, 45. remedies against, 47. Inadequacy of Price, 175. See Annuity. Indorsements on policies, 11. forms of, fire insurance, Appendix, 229. removal, ib. conveyance of interest, ib. in case of addition or alteration, ib. Insurance, Fire, 1. common, 11. hazardous, ib. double hazardous, ib. extraordinary risk, ib. of rent, 13. by other offices, to be stated, ib. fraud or false swearing, 14. expense of removing goods allowed by some offices, 17. duties, ib. plurality of risks, ib. farming stock, 18. memorandum of agreement upon effecting a policy, whether re¬ quiring a stamp, ib. rights of offices under Party-Wall Act, 19. duties on receipts of premiums, 20. the interest of the insured, 21. at the time of insuring and of the fire, ib. duties, 17, 20. return of premium, 23. nature and extent of risk, 24. damage by heat in process of manufacture not covered by insurance from fire, 25. of specific articles, to be construed by general scope of the policy, 27. breach of warranty, ib. 33. INDEX. 259 Insurance —( continued .) Upon Life, 97. different kinds of, ib. different purposes to which applicable, 99, 164, 165, 166. mode of effecting life insurance, 99. proposal, ib. inquiries, 100. declaration, ib. form of policy, 101, Appendix, 230, 232. duties, 102. death by the hands of justice, effect of, 102. See Policy of Insurance—Concealment — Interest—Misre¬ presentation — Warranty — Proceedings — Endowments and Provision for Families. Interest not recoverable on insurance money, 136. of the insured in property insured from fire, 21, 22. at the time of insuring, and of the fire, is necessary, ib. in life insurance, necessary, 122. creditor insuring debtor’s life, 124. creditor cannot recover where the debt has been paid, 125. holder of a note for money won at play has no insurable interest in the maker’s life, 126. trustee may insure for cestui que trust, 127. insuring life of grantor of annuity, ib. Interpleader, 89. See Proceedings. J URISDICTION, fire insurance, 88. life, 164. annuities, 197, 200, 212, et seq. of annuities in equity, 215. See Proceedings. Label, slip or memorandum on, effecting fire insurance, 18. Landlord and Tenant, 81. See Equities. Losses, fraudulent, 66. See Policy—Insurance. Marriage Settlement, Life Insurance, 168. Medical Attendant, Life Insurance, reference to, 117. 119, * s 2 260 INDEX. Material Facts. See Misrepresentation—Concealment. Memorial of Annuity, 194, 195, 197, 198, 202. not necessary in certain cases, 209, 210. form of, Appendix, 238. Misdescription, Fire Insurance, 12, 58. Misrepresentation, of material facts, fatal, 29, 35. wliat are material facts, 29. distinction between representations and warranties, 30. in life insurance, 114, 115, 119. Names of Witnesses in annuity transactions, 205, 206, Note for money won at play not an insurable debt, 126. Notice, effect of, to determine a contract by an office, except on payment of a higher premium, 51. to an office, of assignment. See Assignment. Office. See Policy—Insurance—Proceedings—Assignment. Objections, on proceedings to set aside annuity, to be stated, 215. Order, for payment, 'distinction between, and covenant to pay, fire insurance, 3. order and disposition of bankrupt assignor. See Assignment. Party-Wall Act, rights of fire offices under, 19. Pay or Half Pay, by way of security, 181. See Annuity. Personal Representatives and heir, rights to insurance money, 84. See Equities. Pleas, Fire Insurance, 91. Policy, against fire, nature of, 1. right of action ought to be clear upon, 2. ought to contain not a mere order for payment, but a covenant, 3. the words “ stipulated and declared ” constitute a covenant, 4. contents of policy, fire, 10. form of, Appendix, 224, 226. interest, 4, INDEX. 261 Policy —( continued.) indorsements, 11. different kinds of risks, ib. slight and occasional deviations not fatal to a policy, 59. conditions of fire insurance, 12. description of the property, ib. statement of loss, ib. evidence to be given in support of loss, 18. rent, if to be insured, should be specified, ib. insurances with more offices than one, ib. fraud or false swearing may vitiate fire policy, 14. average clause, 16. expense of removing goods, 17. i duties, ib. plurality of risks, ib. memorandum on effecting an insurance and before policy deli¬ vered, 18. upon life, nature of, 97. mode of effecting, 99. proposal, ib. enquiries, 100. declaration, ib. form of, 101. duties, 102. death by the hands of justice, effect of, ib. Premiums, duty on fire, 17. receipt for duty on, 20. return of, fire, 23. life, 141. of life insurance, on setting aside an annuity, 220. See Insurance—Policy—Proceedings. Proceedings, Fire Insurance, 6. jurisdiction belongs to the courts of law, 88. courts of equity will assist, 89. interpleader, ib. arbitration, ib. upon policies under seal and not under seal, ib. declarations on, 90. pleas, 91. evidence, 93. recovery back of losses improperly paid on policies for lives, 164. declaration, ib. recovery back of a sum paid by an office on a policy in case of fraud, 163. 262 INDE X. Proceedings —( continued.) to set aside annuities, 197, 200. jurisdiction of courts of law under the statutes, 212, 213. general jurisdiction on a warrant of attorney, 213. levying a fine does not give jurisdiction to the Court of Common Pleas, 214. objections to be stated on an application to set aside an annuity, 215. jurisdiction of courts of equity, ib. mode of giving relief, 216, 217. the principle of the relief in equity, 218. on annuity being set aside, grantee has no specific lien on the estate or property on which it is secured, ib. the terms of setting aside an annuity the same at law and in equity, 219. premiums of life insurance not to be taken into the account, 220. except under special circumstances, ib. Production of Certificate of the ministers and churchwardens, Fire, 62. Proof of Loss, Fire, 61. See Policy—Insurance—Proceedings. Provisions for families and endowments, 164. s Rebuilding or reinstating under the Party-Wall Act, 19. I Receipts for Premiums, Fire Insurance, 20. Recovery back of premiums, Life, 141. n Redemption, clause for, in annuity deed, 177. References in life insurance, 100, 117, 119. Representations, 29, 35. life insurance, 119. Risk, and its duration, fire insurance, 49. life insurance, 129. no partial loss in life insurance, ib. the death must take place during the continuance of the policy, ib. See Policy—Insurance. Stamp Duties. See Duties. Stock, Farming, 18. INDEX. 203 Surety for annuity, 186, 188. See Annuity. Tar Barrel and Fire, introduction of, into a building, covered by the common insurance premium, 58. Tenant and Landlord, 81. See Equities-. Trustee may insure for cestui que trust, 127. Usual Medical Attendant, Life, 119. Usury, annuities not subject of, 174. “ Usurped Power,” meaning of, Fire, 41. Warrant of Attorney gives jurisdiction to the Court of King’s Bench in annuity transactions, 213. Warranty, nature of, 27, 33. must appear on the face of the policy, 28. instructions or statements not inserted in the policy merely a repre¬ sentation, 29. must form part of the policy in life insurance, 105. warranty that the party to be insured is in good health, 100. if no warranty of health, insurers run the risk, 109. as to disorders tending to shorten life, 110. Wilful Burning, 67. Witnesses in annuity transactions, 205, 206. . LONDON! PRINTED BY C. ROWOKTII AND SONS, BELL YARD, TEMPLE BAR. , * * * m . .