qui par leur faute avaient incendié la propriété assurée et dans leur rapport les condificateurs disent formellement :

"Il semblerait que le droit de l'assureur qui paie est le droit d'obtenir de l'assuré une cession de son recours en dommage." Les codificateurs citent aussi, à l'appui de leur rapport, Pardessus, Droit Commercial, paragraphe 595, qui nous dit qu'il arrive souvent que la perte dont l'assureur est obligé de faire la réparation est causé par le crime ou par la faute d'un tiers, alors dans ce cas l'assureur aurait toujours le droit de réquérir l'assuré de lui céder le droit d'action qu'il aurait contre l'auteur du délit (p. 143, 6ème édition) :—

[587] "Ce n'est point, il est vrai, le cas de subrogation légale; ce n'est pas même celui de la subrogation conventionelle; c'est le cas de la règle que nul ne peut se dispenser de réparer le tort qu'il a fait (art. 1382, C.N.)."

Je pourrais aussi citer Dalloz, Répertoire Pratique, vo. "Assurance," No. 136, qui dit:

"Il est généralement admis que l'assureur a une action directe contre les tiers responsables du sinistre en vertu du principe général formulé par les articles 1382-1383. Cette action ne lui permet pas d'invoquer toutes les garanties spéciales dont jouit l'assuré."

Les articles 1382 et 1383 du Code Napoléon, qui correspondent à notre article 1053, n'ont trait qu'aux délits et non pas aux abligations résultant de la loi ou des conventions. Il est donc évident

pour moi que les droits dont parle l'article 2584 du Code Civil ne sont que les droits de l'assuré contre les personnes par la faute desquesses la perte a été causeé.

Le texte anglais de cet article est donc celui qui répond à l'intention des codificateurs et qui énonce le plus correctement la loi alors existante.

Je pourrais citer à l'appui de cette opinion: Laverty, Insurance Law, pp. 458-459 et 460; Dalloz, 1853-1-93; Dalloz, 1882-2-238.

La compagnie d'assurance n'avait donc pas le droit dans les circonstances de se faire céder les droits que Madame Claveau, l'assurée, avait contre la Ville de Chicoutimi. Par contre, cette dernière est légalement devenue propriétaire de la créance de l'assurée contre la défenderesse appelant.

Je considère que la compagnie est tenue de payer et le jugement qui l'a condamnée doit être confirmé avec dépens.

Appeal dismissed, with costs.

Solicitors for the appellants: Atwater, Duclos, & Bond.
Solicitor for the respondent: L. Alain.

Note.-Right of municipality settling claim for damages caused by destruction of building to check conflagration to be subrogated to owner's right as against insurer.

Although a search has failed to disclose any other decisions upon the point decided in GUARDIAN ASSUR. Co. v. CHICOUTIMI, ante, 175, there are some which are at variance with the conclusion therein reached. One of these is Pentz v. Etna Ins. Co. (1840) 3 Edw. 341, reversed on another ground in (1842) 9 Paige, 568, in which it was held that the owners of the destroyed building having obtained compensation from the municipality could not resort to the insurance company; and it was said that it can hardly admit of a doubt that whatever sum the underwriters may be compelled to pay upon their contract of insurance for a loss occasioned in such a way as to render the city liable, the city is liable to reimburse the insurer. Another case at variance with the right of the municipality to be subrogated to the rights of the insured against the insurer is New York v. Stone (1838) 20 Wend. 139, in which it was held to be no bar to a claim against the city of New York under an act subjecting it to the payment of damages occasioned by the destruction of buildings by order of the mayor to prevent the spreading of a conflagration, that the party asking an assessment had effected an insurance upon the property destroyed and had received moneys on such insurance.

Other cases which are possibly, although not necessarily, at variance with GUARDIAN ASSUR. Co. v. CHICOUTIMI, are those in which a right to subrogation has been held to exist notwithstanding the liability of the third person was not founded in tort, as in Phænix Assur. Co. v. Spooner [1905] 2 K. B. 753, 74 L. J. K. B. N. S. 792, 93 L. T. N. S. 306, 21 Times L. R. 577, 54 Week. Rep. 313, 10 Com. Cas. 282, where the insurer, upon paying the amount of the loss, was held to be subrogated to the right of the insured against a municipality which before the fire had taken steps to expropriate the property; West of England F. Ins. Co. v. Isaacs [1896] 2 Q. B. 377, affirmed in [1897] 1 Q. B. 226, 66 L. J. Q. B. N. S. 36, 75 L. T. N. S. 564, where the insurer was held entitled to be subrogated to the rights. of the insured against his lessor; United States v. American Tobacco Co. (1897) 166 U. S. 468, 41 L. ed. 1081, 17 Sup. Ct. Rep. 619, where an insurer who had paid to the insured the value of internal revenue stamps lost in a fire was held entitled to the latter's statu

tory right to reimbursement by the government; Monteleone v. Harding (1898) 50 La. Ann. 1147, 23 So. 990, where the insurer was held to be subrogated to the insured's right to enforce contribution for the cost of a party wall; Crissey & F. Lumber Co. v. Denver & R. G. R. Co. (1902) 17 Colo. App. 275, 68 Pac. 670, and Hart v. Western R. Corp. (1847) 13 Met. 100, 46 Am. Dec. 719, where the insurer was held entitled to be subrogated to the right of the insured to recover from a railway company damages caused by fire, irrespective of negligence. But these cases may be distinguishable on the ground that as in the CHICOUTIMÌ CASE, ante, 175, the building would probably have been destroyed by fire had it not been blown up, so that the insurer would have been liable in any event, the claim of the municipality to be subrogated to the right of the insured against the insurer is stronger than that of the insurer to be subrogated to the right of the insured against the municipality.

For annotation of questions of collateral interest, see a note in 41 L.R.A. (N.S.) 1202, on the constitutionality of statutes denying insurer's right of subrogation against person responsible for destruction of property; a note in 52 L.R.A. (N.S.) 203, on construction and effect of statutes giving one who is responsible for the destruction of property by fire the benefit of insurance effected by owners; a note in 23 L.R.A. (N.S.) 870, on the question whether one who destroys insured property may defeat a right of action by the owner upon the ground that the right of action is in the insurer; a note in 41 L.R.A. (N.S.) 719, as to the right of an insurer which has paid the loss, as against insured who has recovered against or settled with third persons responsible for the loss; a note in 29 L.R.A. (N.S.) 798, as to effect of discharge of persons primarily liable for a loss of insured property, or of a contractual provision giving him the benefit of insurance thereon, upon the insured's right of action against the insurer; and a note in 2 L.R.A. (N.S.) 921, upon the question who must bring the action against the party causing the loss in cases in which the insurer has made good the loss to the insured and been subrogated to the latter's rights.

9 B. R. O.

E. S. O.

[ENGLISH DIVISIONAL COURT.]

IN RE HEWETT'S SETTLEMENT.

HEWETT ». ELDRIDGE.

[1915] 1 Ch. 810.

Also Reported in [1915] W. N. 177, 84 L. J. Ch. N. S. 715, 113 L. T. N. S. 315, 59 Sol. Jo. 476.

Marriage settlement

Limitations too remote over of life interests to persons in esse.

Gift

A gift over of life interests in personal property to persons in esse at the date of the settlement, if dependent on the failure of limitations that are too remote, is itself void for perpetuity.

In re Thatcher's Trusts (1859) 26 Beav. 365, 53 Eng. Reprint, 989, followed.

In re Norton [1911] 2 Ch. 27, 80 L. J. Ch. N. S. 119, 103 L. T. N. S. 821, 55 Sol. Jo. 169, explained.

(April 14, 1915.)

ORIGINATING SUMMONS.

By an antenuptial settlement dated January 30, 1893, and made between the husband of the first part, the wife of the second part, and trustees of the third part, certain personal property belonging to the husband was assigned to the trustees in trust to pay the income to the husband for life and after his death to the wife for life. In the event of the husband's bankruptcy or alienation of the income his life interest ceased and the income was payable to the wife for life, and after her death the husband took a protected life interest under a discretionary trust in favor of himself, his issue, and other persons.

After the decease of the survivor of the husband and wife the trustees were to stand possessed of the property in trust for all the children of the marriage who being sons should attain the age of twenty-five or being daughters should attain that age or marry, in equal shares.

And if there should be no child of the marriage who being a son should attain the age of twenty-five or being a daughter should attain that age or marry, then upon trust to pay the income in equal shares to the husband's three sisters Helga, Hilda, and Hulda for their lives and the life of the survivors or survivor of them for their separate use without power of anticipation.

And after the decease of the survivor upon trust to pay the income to the husband's brother Sir Harald George Hewett [811] for life if he should be then living. And from and after his decease upon trust to pay and transfer the property and income absolutely to such persons as he should by deed or will appoint. And if he should not be living at the death of the survivor of the three sisters, then upon trust to pay and transfer the property and income to his eldest son then living. And in default of appointment, or if there should be no such son then living, then upon trust absolutely for the person then entitled in succession to the baronetcy.

The wife died on October 3, 1912, without issue. The husband had not become bankrupt or alienated the income, and his life interest was still subsisting.

On July 31, 1914, the husband issued this summons to determine inter alia whether the trusts after the decease of himself and his wife were void for perpetuity.

Hon. Frank Russell, K.C., and E. G. Rand, for the husband. The limitation to the children who attain twenty-five or marry is clearly void, and the gift over if no child attains twenty-five or marries is equally void. In re Abbott [1893] 1 Ch. 54, 57, 62 L. J. Ch. N. S. 46, 3 Reports, 72, 67 L. T. N. S. 794, 41 Week. Rep. 154; Hancock v. Watson [1902] A. C. 14, 17, 71 L. J. Ch. N. S. 149, 50 Week. Rep. 321, 85 L. T. N. S. 729.

J. G. Wood, for the trustees.

E. P. Hewitt, K.C., and Dighton Pollock, for Hilda. We admit that the gift to the children is void, but the gifts over must all vest, if at all, during the sisters' lives and are therefore good.

[Astbury, J.: You only represent Hilda and are not concerned with the subsequent interests. You had better confine your argument to the question whether the sisters' interests are valid.]

The sisters are only given life interests. These must vest, if at all, during their lives. The gift over is therefore good quoad these life interests. Lewis on Perpetuity, p. 661; Gray on Perpetuities, 2d ed., p. 226; Jarman on Wilis, 6th ed. p. 352.

The last two textbooks were cited with apparent approval by Joyce, J., in In re Norton [1911] 2 Ch. 27, 37, 80 L. J. Ch. N.