by fire, during a limited period of time." A policy of this kind Not asis not in its nature assignable, nor can the interest in it be signable. transferred from one person to another, without the consent of the office; therefore where a policy was transferred to the purchaser of a house thereby insured, and the house was afterwards burnt; it was held, that he could not recover on the policy. This species of policy falls within the 14 G. III, c. 48, consequently the insured must have an interest in the property insured.

cealment.

A misrepresentation or concealment of material facts will Misrepreavoid a fire policy, in the same manner as other policies.(1) sentation Where A., abroad, having two warehouses, wrote to this or concountry to effect an insurance upon one of them only, without stating, as was the fact, that a house nearly adjoining it had been on fire on that evening, and that there was danger of the fire again breaking out; and sent his letter after the regular post time; the fire having again broken out on the day next but one following, and consumed A's warehouse; held, that this was a material concealment, although A.'s letter was written without any fraudulent intention. Where a mill was insured as being of one class and turned out to have been of another, at the time it was insured; held, that the policy was void, for the building was not de facto that which was in- *1234 sured. But where an agricultural building was described in a policy as a barn, though it was not strictly so; held, not to be such a misdescription as would vacate the policy, as the building, had it been rather more correctly described, would have paid the same rate of insurance.f

Where goods insured were described in the policy to be in the dwelling-house of the insured, and it appeared that he had only one room as a lodger, in which the goods were; it was held, that they were correctly described within the condition, that "houses, buildings, or other places, where goods are deposited, shall be truly described," such condition relating to the construction of the house, and not to the interest of the parties in it.s

If a policy refer to certain printed proposals, the proposals Condition will be considered as part of the contract. By the printed pro- precedent posals of a fire insurance company it was stipulated, "that the othe right to reinsured should procure a certificate of the minister, and some cover. respectable housekeepers of the parish importing that they knew the character of the insured," &c.; it was held, that the

Bufe v. Turner, 2 Marsh 46. 6 Taunt. 338. (1 Eng. C. L. 406.)

• Newcastle Fire Assurance Company ". Macmorran, 3 Dow. 255. Dodson v. Southby, M. & M. 90. (22 Eng. C. L. 260.)

8 Friedlander v. London Assurance Company, 1 N. & M. 31.

(1) (Jefferson v. Cotheal, 7 Wend. 72. Delonquemare v. Tradesmen's Ins. Co., 2 Hall, 589. Stebbins v. The Globe Ins. Co., Ibid. 632. Columbia Ins. Co. v. Lawrence, 10 Peters, 507.)

When the

insurance

procuring such certificate was a condition precedent to the right of the insured to recover; and that it was immaterial that the minister, &c., had wrongfully refused to grant such certificate, the rule being, that if a person undertake for the act of a stranger, that act must be done."

Where by a policy under seal, referring to certain printed period for proposals, a fire office insured the defendant's premises from which the 11th of November, 1802, to 25th December, 1805, for a cerwas effect- tain premium which was to be paid yearly on each 25th of ed has ex- December, and the insurance was to continue so long as the pired, the insured should pay the premium at the said times, and the benefit of office should agree to accept it. By the printed proposals it the policy is forfeit was stipulated that the insured should make all future pay*1235 "ments annually at the office, within fifteen days after the day ed though limited by the policy upon forfeiture of the benefit thereof, it contains and that no insurance was to take place till the premium was a stipula paid; and by a subsequent advertisement (agreed to be taken. may be re- as part of the policy) the office engaged that all persons innewed sured there, by policies for a year or more, had been and within a should be considered as insured for fifteen days beyond the specific time of the expiration of their policies; it was held, nottime after withstanding this latter clause, (the insured having, before the though an expiration of the year, had notice from the office to pay an offer has increased premium for the year ensuing, or otherwise they been made would not continue the insurance, and the insured having reto renew it fused to pay such advanced premium,) that the office was not within liable for a loss which happened within fifteen days from the such time. expiration of the year for which the insurance was made;

tion that it

wards,and

a

though the insured, after the loss, and before the fifteen days expired, tendered the full premium which had been demanded; for the effect of the whole contract, &c., taken together, was only to give the insured an option to continue the insurance or not, during fifteen days after the expiration of the year, by paying the premium for the year ensuing, notwithstanding any intervening loss, provided the office had not before the end of the year, determined the option, by giving notice that they would not renew the contract."(1)

So where in a policy of insurance against loss by fire, from half

Worsley v. Wood, (in Error,) 6 T. R. 710. 2 H. Pl. 574. And see Oldman v. Bewicke, 2 H. Bl. 577, n. Routledge v. Burrell, 1 H. Bl. 254.

Salwin v. James, 6 East, 571. See Doe d. Pitt v. Shewin, 3 Camp. 134.

(1) (A policy, executed by the defendants, a corporation under their seal for the term of one year contained a clause that persons désirous of continuing their insurances, might do so by a timely payment of the premium without being subject to any charge for the policy. The insurance was accordingly continued from year to year by endorsements on the policy, which were not under scal: held, that these endorsements did not continue the instrument as a specialty: and, therefore, that the action of covenant would not lie to recover for a loss incurred after the expiration of the first term. Luciani v. American Fire Ins. Co., 2 Wharton, 167. The plaintiff might have demanded a policy in conformity with the clause, and have maintained an action for the breach of it; or he might, perhaps, maintain assumpsit on the contract remaining in parol. Per Gibson, C. J., Ibid.)

a year to half a year, the assured agreed to pay the premium half yearly," as long as the insurers should agree to accept the same," within fifteen days after the expiration of the former half-year; and it was also stipulated that no insurance should take place till the premium was actually paid; a loss happened within fifteen days after the end of one half year, but before the premium for the next was paid; it was held, that the insurers were not liable, though the assured tendered the premium before the end of the fifteen days, but after the loss; for the policy was at an end after the expiration of the half year; and by the terms of the contract, the insurers had an option to ac*cept or refuse the premium after that period, and the insur- *1236 ance was not to take place until the premium was actually paid.a

Where there was a condition in the policy that the insured should forfeit all benefit under it, if there were any fraud or false swearing in the claim he should make in case of a loss. A fire having ensued, the insured made an affidavit of the damage to the extent of 10857.; in an action on the policy the jury having found a verdict for the insured with 5007. damages only, the court granted a new trial.b

A policy of insurance on a mill, millwright's work, standing Recital in and going gear, engine house and steam-engine, recited" that a policy. the aforesaid buildings were brick built, warmed by steam, lighted by gas, and worked by the steam-engine above mentioned, in tenure of one firm, standing apart from all other mills, and worked by day only." In an action of covenant to recover the amount of a loss by fire; held, that the recital did not mean that the steam engine was not worked by night. A condition was indorsed on the policy avoiding it, if after the insurance was effected, the risk should be increased by the erection or alteration of any stove, or the carrying on any hazardous trade, &c. The defendant pleaded, that after the making of the policy the said steam engine was worked by night, and not by day only, whereby the risk was increased; held, that the plaintiff was entitled to judgment, notwithstanding a verdict for the defendant on this plea, it being bad in omitting to state that the engine was not worked in the same way before the time of the effecting of the policy.

Where a policy contained a condition "that the insured Construcshould forfeit all right to recover on it, unless the buildings tion of

conditions

insured were accurately described, and the trades carried on in policies there specified, that they might be classed at appropriate rates against of payment; and secondly, that if any alteration was made in fire. any building insured, or if the risk was increased, it should be

a Tarlton v. Staniforth, 5 T. R. 695. As to the construction of policies, see Andrews v. Ellison, 6 Moore, 199. (17 Eng. C. L. 24.) Severne v. Olive, id. 235. Alehorne v. Saville, id. 202, n. (17 Eng. C. L. 26.)

b

Levy v. Baillie, 7 Bing. 349. (20 Eng. C. L. 157.) 5 M. & P. 208.

Whitehead v. Price, 1 Gale, 151. 2 C. M. & R. 447.

VOL. II.-28

notified to the insurers, and allowed by indorsement on the *1237 *policy." In an action on the policy, it appeared that the subject of insurance was a kiln, which had been never used for any other purpose than drying corn and seed, until after the insurance, and that the loss occurred in consequence of it being lent, without any remuneration to the insured, on one occasion, for drying bark, which was a more hazardous use; it also appeared that a higher premium was exacted by insurers for a bark kiln than for a malt kiln. It was contended, on behalf of the insurance office, that the policy was void on two grounds; first, because the kiln was described in the policy as for drying corn, whereas it was used for drying bark, whereby the first condition above stated, was violated; secondly, because there was a change made in the business and risk without notice to the office, as required by the second condition; but the court overruled both objections, and decided that the insured was entitled to recover on the policy. In answer to the first objection the court said, that the condition pointed to the description of the premises given at the time of insuring, and that description being in this instance perfectly correct, nothing which occurred afterwards, not even a change of business, could bring the case within that condition, which was fully performed when the risk first attached. As to the 2d objection, they said, that the condition referred to pointed at an alteration of business, as something permanent aud habitual; and that a single act of bark drying did not amount to a breach of that condition. That no clause in the policy amounted to an express warranty that nothing but corn should ever be dried in the kiln, and there were no facts or rule of legal construction from which an implied warranty could be raised. So where the premises insured were described in the policy as a building "where no fire was kept, and no hazardous goods deposited;" it was held, by Lord Tenterden, that these words meant the habitual use of fire, and deposit of hazardous goods, and that the insured was not precluded from recovering on the policy, where the loss occurred in consequence of making a fire and bringing a tar-barrel on the premises to repair them.b

not liable.

Losses for If a person who is not a linendraper, insures his "stock in which the trade, household furniture, linen, wearing apparel, and plate," insurer is by a policy against fire, this will not protect linendrapery goods subsequently purchased on speculation; and the word "linen" in the policy must be confined to household linen by way of apparel. Where an innkeeper insured his " interest in the inn and offices," it was held, that on the inn being burnt, he could not recover against the insurer the loss sustained by his hiring

a

Shaw v. Robberds, 1 N. & Per. 279. 1 W. W. & Dav. 94. It was also held, in this case, that the negligence of the insured himself in drying the bark, in the absence of fraud, was no defence to the action.

Dobson v. Southby, M. & M. 90, (22 Eng. C. L. 260,) ante, 1234.

Watchorn v. Langford, 3 Camp. 422.

other premises while his own were being repaired, and by the refusal of persons to go to the inn while under repair, the premises having been reinstated by the insurers; for though the profits of an inn might be a subject of insurance, if insured qua profits, they could not be considered as an incidental part of the loss under an insurance upon a house or shop.a

A policy was effected against "loss or damage by fire," on the stock of a sugar-house, the different stories of which were heated by a chimney running up to the top. The insured negligently lighted the fire, without opening the register at the top, by which means the heat was increased to such a degree as to spoil the sugar, but no ignition was produced; held, that this was not a loss within the policy. The burning of a house by a mob; held, not to be within the proviso of a policy, which provides that the insurers shall not be liable in case the same be burnt by reason of any invasion, foreign enemies, or any military or usurped power. But where the policy contained a proviso, that the insurers should not be liable for a loss occasioned by "civil commotion;" it was held, that they were *not liable for losses sustained through the conduct of the mob *1239 during the riots in London in the year 1780.d

Where, in an action against an insurance company to recover a loss sustained by fire, the defence was, that the plaintiff had wilfully set fire to the premises, and the judge directed the jury, that in order to find a verdict against the plaintiff, they should be satisfied that the crime imputed to him was as fully and satisfactorily proved as would warrant them in finding him guilty on a criminal charge for the same offence; held, that such direction was right. (1)

In the matter of Wright and Poole, 1 Ad. & Ell. 621. (28 Eng. C. L. 167.) S. C. nom. in re Sun Fire Office, 3 N. & M. 819. (28 Eng. C. L. 421.)

360.

Austin v. Drew, 2 Marsh. 130. 6 Taunt. 436. (1 Eng. C. L. 441.) 4 Camp.

e Drinkwater v. London Assurance Company, 2 Wils. 363. An insurance company who have paid a loss occasioned by riot, may sue the hundred upon the Riot Act in the name of the insured. Mason v. Sainsbury, Marsh. 796.

a Landale v. Mason, Marsh. 793.

e

• Thurtell v. Beaumont, 8 Moore, 612. 1 Bing. 339. (8 Eng. C. L. 337.)

(1) (As to what is an insurable interest in a policy against fire, see M'Givney v. Phonix Fire Ins. Co., 1 Wend. 85. Jefferson v. Cotheel, 7 Wend. 72. Tradesmen's Ins. Co. v. Robert, 9 Wend. 404. Tyler v. Ætna Fire Ins. Co., 12 Wend. 507. Laureat v. Chatham Fire Ins. Co., 1 Hall, 41. De Forest v. The Fulton Fire Ins. Co., 1 Hall, 84. Strong v. The Manufacturers' Ins. Co., 10 Pick. 40.)