that in case the said trustees or either of them, or any trustees or trustee to be appointed in their or either of their places by virtue of this present provision shall die, or be desirous of being discharged from the execution of the aforesaid trusts, or shall refuse or become inca- [*435] pable of acting therein, or shall go or be about to reside, or shall for six calendar months consecutively actually reside, out of the jurisdiction of the Court of Chancery at Westminster, then and in every such case it shall be lawful for the said A. B., his executors or administrators, but nevertheless as to every appointment to be made by the executors or administrators of the said A. B., with the consent in writing of the said E. B. during her life, by any deed or deeds, under his or their hand and seal, or respective hands and seals, to nominate and appoint any fit persons or person to supply the place of the said deceased, retiring, or incapable trustees or trustee; and immediately after every such appointment, the said policies, moneys, stocks, funds, securities, and premises, for the time being subject to the trusts and provisions of these presents, shall be assigned and transferred, so that the same may vest in such new trustees or trustee, either jointly with the surviving or continuing trustee, or solely, as the case may require, and in their executors and administrators, upon and for the trusts and purposes herein-before declared and contained concerning the same; and every such new trustee shall have the same powers, authorities, and discretions, and act in the execution of the trusts and provisions of these presents, as effectually, in all respects, as if he had been hereby originally appointed a trustee instead of either of them the said C. D. and E. F. (Trustees' Indemity Clause, ante, Precedent XI.) Provided nevertheless, and it is hereby expressly declared and agreed by and between the said parties hereto, that notwithstanding the trusts, powers, provisions, and covenants herein-before contained, but without prejudice in any respect to the aforesaid provisions for the protection and indemnity of the trustees for the time being hereunder, it shall and may be lawful for the said A. B., and he doth hereby reserve to himself full power and authority, at any time or times hereafter during his life, by any deed or deeds to be by him sealed and delivered in the presence of and to be attested by one or more witness or witnesses, either absolutely or partially to revoke, determine, and make void all, any, or either of the said trusts, purposes, powers, provisions, and covenants herein-before respectively declared, expressed, and contained concerning the whole or any part or parts of the aforesaid [bank annuities,] policies, moneys, and other premises, which shall for the time being be subject to the trusts and provisions of these presents or any of *them; and also, if he shall think fit, by the same or any other

deed or deeds to be respectively executed in like manner, to [*436]

direct, limit or appoint any other trusts, purposes, powers, and provisions of and concerning the whole or any part or parts of the aforesaid [bank annuities,] policies, moneys, and other premises, the aforesaid trusts and provisions concerning which shall have been so revoked either absolutely or partially as aforesaid, for the benefit of such person or persons, and otherwise in such manner in all respects as the said A. B. shall think fit. Provided, lastly, and he the said A. B. doth hereby expressly declare,

that subject and without prejudice in any respect to the operation of the assignment of the said policies and premises herein-before contained, and if and so far as may be requisite or expedient for giving full effect in equity thereto, and to the respective trusts, purposes, powers and provisions herein-before contained, and for the specific performance and execution of the aforesaid desire, determination and agreement by or on the part of him the said A. B., he the said A. B., his executors or administrators, as concerning the said policies, moneys, and all other premises herein-before assigned or expressed so to be, are and shall be possessed thereof and interested therein respectively, upon trust for the trustees or trustee for the time being of these presents, pursuant to and according to the several and respective trusts, powers, and provisions herein contained, and for that purpose, upon trust, at the request of the trustees or trustee, or of any person or persons beneficially entitled hereunder, and at the expense of the trust estate or of the person or persons making such request, from time to time, to do, execute, and perform or concur in all such deeds, acts, and things as may be requisite and expedient for the vesting, paying or transferring in or to the said trustees or trustee, for the time being hereunder and upon, with, and subject to the said trusts, powers, and provisions all and singular the said policies, moneys, and other premises hereby assigned or expressed so to be, and the moneys and other funds to arise therefrom, or which shall constitute the produce thereof: Provided, nevertheless, and it is hereby expressly declared, that neither the said last preceding declaration of trust nor any other thing herein contained shall prejudice or affect the aforesaid power of revocation and new appointment herein-before reserved unto or vested in the said A. B., or any future exercise thereof. In witness, &c.

[*437]

*Extract from the Minutes of a Special Court of Directors of the Equitable Society, 9th December, 1830.

RESOLVED, That the following scale be adopted for regulating the rate of interest to be received in future on money advanced on mortgage by the trustees of this society.

Resolved, That the price of the 3 per cent. Consolidated Bank Annuities on the last day of April, and on the last day of October in every year (or if the same shall fall on Sunday, or a holiday, on the next open day of business), shall regulate (in conformity with the above scale) the rate of interest on all the mortgages of this society, and that the payment to be made in the half year from April to October, shall depend on the price of 3 per cent. consols on the last day of October then preceding; and in the half year from October to April, shall in the like manner depend on the price of 3 per cent. consols on the last day of April then preceding.

Resolved,―That nevertheless no variation take place in the rate of interest on mortgages until they have respectively endured for three years.

If the half-yearly payments of interest remain unpaid at the expiration of thirty days from the time of their respectively becoming due, the same will be charged after the rate of 5 per cent. per annum.

Cases decided in the County Courts upon the Claim of the Medical Referee of the Assured to the Payment of a Fee by the Company.

(From the "Essex Standard," Oct. 4, 1850.)

S. A. PHILBRICK, Colchester, v. Charles Whetham, London. Defendant was sued as one of the directors of the National Provident Institution for the fee of one guinea for furnishing particulars as to the health of a party proposing to assure his life. It appeared that on the 6th of August plaintiff received a circular letter from the secretary to the institution, stating that "reference having been made to him," in a proposal for a life policy, by Mr. James Harwood, as his medical attendant, the Board requested that he would favour them with answers to questions given in the document. It further stated that communications of this nature were considered as strictly confidential; and a request was [*438] added in writing that the information should be forwarded forthwith, so that the proposal might be considered and decided upon at the next Board day. The certificate was sent up on the 8th, with a note charging the fee of a guinea; and on the 10th the plaintiff received a letter from the secretary, stating, that it was not the practice of the office to pay fees to medical attendants of assurers. The plaintiff, in his evidence, said for some years he had furnished similar certificates to the office in question, without charge; life assurance not being then so prevalent as to make the practice a burden to the profession, but since these applications had become so frequent he had refused to supply the information without payment. He mentioned two instances in which he had actually received payment through the society's agent in Colchester, but it appeared that in these cases he was aware that the money came from the

parties effecting the insurance, and not from the office. The defence relied upon was in brief that the party being desirous of insuring his life, as it was one of the requisites to enable him to do so that he should refer to his medical practitioner, the onus of payment was upon the assurer and not upon the society. In answer to the judge, the agent of the office said that Mr. Philbrick had repeatedly told him he would not furnish any more certificates without a fee; but he had never said that in case of applications to him he should hold the society liable; that he believed this was the first circular sent to Mr. Philbrick direct from the secretary, those which had been furnished gratuitously having all come from himself as agent. Mr. Philbrick submitted that the last answer was a very material one to the plaintiff's case, as showing a new mode of application to him, after he had declined to furnish more certificates without payment. He also urged that upon the face of the letter itself the agreement was between the office and himself; for he did not see how the letter could be construed otherwise than as a request from the office to perform certain services on their account. His honour said, if the letter had stood alone, and this had been the first transaction of the kind between Mr. Philbrick and the office, he thought they would have been liable and must have paid him; but now, as it appeared to him, the whole depended upon what had previously taken place. Of course Mr. Philbrick was not bound to continue furnishing certificates gratuitously, but he was of opinion that he could not claim payment without previous notice.

Judgment for the defendant.

Hooper v. The Gresham Life Assurance Society, in the Shoreditch County Court, before Mr. Sergeant, Storks.(c)

THIS was an action brought by a medical gentleman to recover a fee of one guinea, as compensation for professional opinion and services, consisting of answers to certain inquiries as to the state of health of a proposed assurer.

The plaintiff put in evidence a letter which he had received from the secretary of the society, commencing thus:

"Proposer's Medical Referee.

"To Mr. Hooper, Queen's Road, Dalston. "Sir, Mr. Jacob J. Davies, who has been proposed to this office for an assurance on his life, has given a reference to you for private and confidential answers to the following queries."

*Then follow certain printed questions; and there is a note at [*439] the foot to the effect that

"The directors would be obliged by your answering each of the ques tions separately."

Answers were accordingly returned to the society, and for which the plaintiff some time afterwards claimed a fee of a guinea; but the society refused to pay the demand, on the ground that it was not customary.

(c) Post Magazine, 7th June, 1851.

It was urged on behalf of the society that there was no retainer, nor was there any contract either expressed or implied. The legal contract, if any, was with the assured, without whose previous consent the plaintiff could not with propriety have answered the questions at all. The plaintiff should either have declined to answer the questions, or have made a 'special contract for remuneration. That there might be some few offices which held out inducements to medical men, but this society, in common with the majority of offices, did not; nor was it bound by the arrangements of others who did. A contract must be either expressed or implied. If implied, then it must either be supported by the particular circumstances, or by general usage. That in this case the circumstances did not imply such a contract, and the general usage was against it; and where there was a doubt as to the services being gratuitous, the onus of proving an express contract lay upon the plaintiff. In the case of Hingston v. Sir Fitzroy Kelly (18 Law Journal, 360), Baron Parke held that if the defendant could show that the contract was doubtful the plaintiff must clearly prove an engagement to pay. That the cases of Reason v. Wirdiman (1 Carr. & Payne, 434), Davies v. Davies (9 Carr. & Payne, 871), and Keith v. Russell (3 Q. B. Reports, 928), were also in point. If there was any contract at all in this case, it must have been with the assured, for whose benefit the inquiries were made, and who was bound to give all the information required, and if he did not he must abide by the consequences. That the medical referee was the selection of the assured, not of the society; and if the plaintiff had intended to charge the society he ought to have stipulated for payment. That the services rendered by the plaintiff, however, were not in themselves chargeable. A referee as to the responsibility of a party requiring a loan could not charge for giving information, and the only distinction between such a case and the present is, that the one is an inquiry into pecuniary circumstances and the other into the state of health. Both are voluntary, and cannot be converted into a debt. Nor could a former master charge for giving information as to the character and fitness of a servant. In neither case was the referee bound to answer the questions, nor was the plaintiff in this case.

His Honour. The question in this case is whether there was an implied assumpsit? The argument that the medical referee is the selection of the assured is certainly a strong one; for although the questions are put down by the society, the name of the referee is given by the assured. I don't think there is any evidence of an implied assumpsit beyond the sending of the letter. That is my present impression; but it is a question of too general importance to be decided off hand. The nonsuit is also a question of considerable nicety; I shall, therefore, take time to consider my judgment.

The following judgment was afterwards delivered by the Court:-"In this case of E. Hooper, a medical gentleman, the plaintiff states that this is an action on contract for 17. 1s., due for professional opinion *and [*440] services by the plaintiff at the request of the secretary of the Gresham Life Assurance Society. There were two points raised in this case: first, that in an action for an apothecary's bill the plaintiff cannot